01e707f2d8b8d070d1d8ee90e8b2e7d6.pdf	effective_date jurisdiction party term	EX-10 .2 3 form8k022717_ex10-2 .htm NON-COMPETITION, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT DATED AS\nOF FEBRUARY 24, 2017 BETWEEN LSI INDUSTRIES INC. AND DENNIS W. WELLS.\nEXHIBIT 10.2\nNON-COMPETITION, NON-SOLICITATION\nAND NON-DISCLOSURE AGREEMENT\nThis Non-Competition, Non-Solicitation and Non-Disclosure Agreement (this "Agreement") is made this 24th day of February, 2017,\nby and among LSI Industries Inc., an Ohio corporation ("LSI") and Dennis W. Wells ("Executive").\nWITNESSETH:\nWHEREAS, LSI and its affiliates and subsidiaries are engaged in the business of designing, engineering, manufacturing and marketing\na broad array of lighting and graphics products for commercial/industrial lighting applications and corporate visual image programs (the\n"Business")\nWHEREAS, Executive was initially employed as LSI's Chief Operating Officer and subsequently promoted to Chief Executive Officer\non October 22, 2014 and LSI's President on October 29, 2014;\nWHEREAS, the parties entered into an Employment Agreement as of October 1, 2014, which is being modified by an Amended and\nRestated Employment Agreement (the "Amended Employment Agreement") contemporaneously with this Agreement providing for, among other\nthings, increased compensation and severance benefits, and in return, LSI seeks a renewal and restatement of Executive's commitment to LSI as\ndescribed herein.\nNOW THEREFORE, in consideration of the mutual covenants and agreements set forth below and other good and valuable\nconsideration, the receipt of which is hereby acknowledged, LSI and the Executive hereby agree, as follows:\n1.\nRestrictions on Use and Disclosure of Information.\n(a)\nGeneral Restrictions. Executive hereby acknowledges that, as a result of his relationship with the Company,\nincluding, but not limited to his beneficial interest in LSI and roles in the management and operation of the Business, Executive has acquired\ntrade secrets, proprietary data and confidential information related to the Business. Executive agrees that he will not, without the express written\nconsent of LSI, at any time, directly or indirectly, communicate, disclose or divulge to, any person, nor use for his own benefit or the benefit of\nany person, any of the trade secrets, proprietary data or confidential information related to the Business. Executive agrees that such trade secrets,\nproprietary data and confidential information include, but are not limited to, the following: existing and contemplated projects; joint ventures;\nresearch and development programs; work product, business, accounting and financial information and data (except that Executive may provide\nsuch information and data to his financial and legal advisors in connection with the filing of tax returns); marketing plans; pricing, methods and\nprocesses involved in developing, manufacturing, distributing and selling products and services; lists and/or identities of customers, distributors,\nsuppliers and prospective clients; information relating to inventions, modifications, discoveries, designs, developments, improvements,\nenhancements, processes, formulas, data, techniques, computer programs, frameworks, methodology, analytical approaches, works of authorship,\nknow-how, trade secrets, other intellectual property or licensing arrangements; and the identity of any persons or entities associated with or\nengaged as partners, employees, consultants, advisers and/or agents of LSI (collectively, the "Restricted Information").\n(b)\nDisclosure in Proceedings. Notwithstanding the foregoing, Executive may disclose Restricted Information only to\nthe extent that disclosure thereof is required by a court or other governmental agency of competent jurisdiction, provided that Executive promptly\nnotifies LSI of any such demand, order or threat (and in any event prior to any such disclosure) and reasonably cooperates with LSI in obtaining\nany available protective order or the equivalent prior to the disclosure of such Restricted Information. LSI agrees to indemnify and hold\nExecutive harmless from and against his refusal to submit to a demand to disclose such Restricted Information and all fees, costs, or expenses\nincurred by him (including reasonable attorneys fees and disbursements) in responding to or contesting such demand or cooperating with LSI in\nobtaining such protective order or equivalent, or in refusing to furnish such Restricted Information.\n2.\nNon-Solicitation. During the period of Executive's employment with LSI and for a period of twelve (12) months after\nemployment with LSI ends for any reason, Executive shall not, directly or indirectly: (a) intentionally or knowingly solicit, divert, take away,\naccept or attempt to divert or take away any business in which LSI was engaged immediately prior to the date hereof, from any customer of LSI\nor any active prospective customer of LSI with whom Executive became aware or with whom Executive had contact while employed by or a\nbeneficial owner of the Company; or (b) intentionally recruit, solicit, induce or encourage, or attempt to recruit, solicit, induce or encourage any\nformer, current or future employee of LSI, or any person, independent contractor, agent, consultant or supplier of LSI to terminate such person's\nemployment or other relationship with, or otherwise cease to provide or reduce such person's supply of goods and/or services.\n3.\nNon-Disparagement. Executive shall not disparage or make negative statements (or induce or encourage others to disparage\nor make negative statements) about LSI or any of its present or past equity holders, directors, officers, members, partners, employees or agents.\n4.\nNon-Competition. During the period of Executive's employment with LSI and for a period of six (6) months following\nExecutive's employment if Executive's employment is terminated by LSI for "Cause", Executive shall not, directly or indirectly, whether as\nprincipal, agent, employee, director, consultant, stockholder, partner, member or in any other capacity, run, own, manage, operate, control, be\nemployed by, provide consulting services to, be an officer or director of, participate in, lend his name to, invest or have any financial or other\ninterest in or be connected in any manner with the management, ownership, operation or control of any business, venture or activity anywhere in\nNorth America and any additional geographic territories where LSI operates that is competitive with the Business; provided, however, that this\nprovision shall not prohibit Executive from acquiring, solely as a passive investment, securities of any entity listed on a national securities\nexchange or regularly traded in the over-the-counter market if Executive does not own, collectively, five percent (5%) or more of any class of\nsecurities of such entity.\nFor purposes of this Agreement, the term "Cause" shall mean any of the following: (i) indictment for, conviction of, or plea of guilty or\nno contest by the Executive to a felony, or of any criminal act; (ii) the unreasonable deliberate and material failure or refusal by the Executive to\nperform, consistent with the terms of this Agreement, his employment duties hereunder (other than as a result of PTO, sickness, disability, illness\nor injury), and the failure to rectify the same within thirty (30) days after the Company shall have given notice to the Executive identifying such\nfailure or refusal and demanding that it be rectified; (iii) the Executive's commission of any act of fraud, embezzlement, dishonesty or other\nwillful misconduct that has caused, or would reasonably be expected to cause, material injury or economic harm to the Company; (iv) an act of\ngross negligence on the part of the Executive that has caused, or would reasonably be expected to cause, material injury or economic harm to the\nCompany; (v) a deliberate or material violation of a written material Company policy; or (vi) a material breach of this Agreement (or any\nsuccessor thereto or amendment thereof) which (and only if the same shall be curable) Executive fails to cure within thirty (30) days after the\nCompany shall have given notice to the Executive identifying such breach and demanding that it be cured.\n5.\nRemedies and Enforceability. In addition to any other rights or remedies that may be available, LSI shall be entitled to\nimmediate injunctive relief (including the issuance of a temporary restraining order, preliminary and permanent injunction, if applicable) or other\nappropriate equitable relief in any court of competent jurisdiction, upon the occurrence of a breach by Executive of any of the terms of this\nAgreement. Executive acknowledges and agrees that a violation of the restrictive covenants set forth in this Agreement will cause irreparable\nharm to LSI, that the remedy at law for the same would be inadequate, and that damages would be difficult to determine, and Executive therefore\nconsents to the imposition of equitable remedies, including injunctive relief without the requirement of a bond, if LSI seeks equitable relief as a\nremedy as set forth in this Agreement.\n6.\nEnforceability. If a court of competent jurisdiction determines that any of the provisions or restrictions of this Agreement are\ninvalid or unenforceable by reason of being unreasonably vague or unreasonable as to the scope of coverage, length of time or geographical area,\nor for any other reason, then and in each such case, the remaining restrictions herein contained shall, nevertheless, remain effective, and this\nAgreement, or any portion hereof, shall be considered to be amended so as to be considered reasonable and enforceable by such court, and the\ncourt shall specifically have the right to restrict the time period or the business or geographical scope of such restrictions to any portion of the\ntime period, business or geographic areas described above to the extent the court deems such restriction to be necessary to cause the covenants to\nbe enforceable, and in such event, the covenants shall be enforced to the extent so permitted.\n7.\nSeverability. If any term or provision of this Agreement is declared illegal or unenforceable by any court of competent\njurisdiction and cannot be modified to be enforceable, such term or provision shall immediately become null and void, leaving the remainder of\nthis Agreement in full force and effect.\n8.\nEntire Agreement and Amendments. This Agreement shall constitute the entire agreement between the parties and\nsupersedes all existing agreements between them, whether oral or written, with respect to the subject matter hereof.\n9.\nSuccessors and Assigns. This Agreement shall be binding and shall inure to the benefit of the parties hereto and their\nrespective successors, assigns, heirs and legal representatives.\n10.\nWaiver. No waiver of any party hereto of a breach of any provision of this Agreement by any other party shall operate or be\nconstrued as a waiver of any subsequent breach by such other party. The failure of any party hereto to take any action by reason of such breach\nshall not deprive such party of the right to take action at any time while such breach continues.\n11.\nGoverning Law. This Agreement shall be construed in accordance with, and the rights of the parties shall be governed by,\nthe laws of the State of Ohio.\n12.\nCounterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and\nwhen taken together shall constitute one agreement.\nThe parties have caused this Agreement to be executed by the undersigned duly authorized persons as of the day and year first stated above.\nLSI INDUSTRIES INC.\nBy: /s/ Ronald S. Stowell\nRonald S. Stowell\nVice President, Chief Financial Officer\n/s/ Dennis W. Wells\nDennis W. Wells\nChief Executive Officer	EX-10.2 3 form8k022717_ex10-2.htm NON-COMPETITION, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT DATED AS\nOF FEBRUARY 24, 2017 BETWEEN LSI INDUSTRIES INC. AND DENNIS W. WELLS.\nEXHIBIT 10.2\nNON-COMPETITION, NON-SOLICITATION\nAND NON-DISCLOSURE AGREEMENT\nThis Non-Competition, Non-Solicitation and Non-Disclosure Agreement (this "Agreement") is made this 24th day of February, 2017,\nby and among LSI Industries Inc., an Ohio corporation ("LSI") and Dennis W. Wells ("Executive").\n \nWITNESSETH:\nWHEREAS, LSI and its affiliates and subsidiaries are engaged in the business of designing, engineering, manufacturing and marketing\na broad array of lighting and graphics products for commercial/industrial lighting applications and corporate visual image programs (the\n"Business")\nWHEREAS, Executive was initially employed as LSI's Chief Operating Officer and subsequently promoted to Chief Executive Officer\non October 22, 2014 and LSI's President on October 29, 2014;\nWHEREAS, the parties entered into an Employment Agreement as of October 1, 2014, which is being modified by an Amended and\nRestated Employment Agreement (the "Amended Employment Agreement") contemporaneously with this Agreement providing for, among other\nthings, increased compensation and severance benefits, and in return, LSI seeks a renewal and restatement of Executive's commitment to LSI as\ndescribed herein.\n \nNOW THEREFORE, in consideration of the mutual covenants and agreements set forth below and other good and valuable\nconsideration, the receipt of which is hereby acknowledged, LSI and the Executive hereby agree, as follows:\n1. Restrictions on Use and Disclosure of Information.\n(a) General Restrictions. Executive hereby acknowledges that, as a result of his relationship with the Company,\nincluding, but not limited to his beneficial interest in LSI and roles in the management and operation of the Business, Executive has acquired\ntrade secrets, proprietary data and confidential information related to the Business. Executive agrees that he will not, without the express written\nconsent of LSI, at any time, directly or indirectly, communicate, disclose or divulge to, any person, nor use for his own benefit or the benefit of\nany person, any of the trade secrets, proprietary data or confidential information related to the Business. Executive agrees that such trade secrets,\nproprietary data and confidential information include, but are not limited to, the following: existing and contemplated projects; joint ventures;\nresearch and development programs; work product, business, accounting and financial information and data (except that Executive may provide\nsuch information and data to his financial and legal advisors in connection with the filing of tax returns); marketing plans; pricing, methods and\nprocesses involved in developing, manufacturing, distributing and selling products and services; lists and/or identities of customers, distributors,\nsuppliers and prospective clients; information relating to inventions, modifications, discoveries, designs, developments, improvements,\nenhancements, processes, formulas, data, techniques, computer programs, frameworks, methodology, analytical approaches, works of authorship,\nknow-how, trade secrets, other intellectual property or licensing arrangements; and the identity of any persons or entities associated with or\nengaged as partners, employees, consultants, advisers and/or agents of LSI (collectively, the "Restricted Information").\n(b) Disclosure in Proceedings. Notwithstanding the foregoing, Executive may disclose Restricted Information only to\nthe extent that disclosure thereof is required by a court or other governmental agency of competent jurisdiction, provided that Executive promptly\nnotifies LSI of any such demand, order or threat (and in any event prior to any such disclosure) and reasonably cooperates with LSI in obtaining\nany available protective order or the equivalent prior to the disclosure of such Restricted Information. LSI agrees to indemnify and hold\nExecutive harmless from and against his refusal to submit to a demand to disclose such Restricted Information and all fees, costs, or expenses\nincurred by him (including reasonable attorneys fees and disbursements) in responding to or contesting such demand or cooperating with LSI in\nobtaining such protective order or equivalent, or in refusing to furnish such Restricted Information.\n2. Non-Solicitation. During the period of Executive's employment with LSI and for a period of twelve (12) months after\nemployment with LSI ends for any reason, Executive shall not, directly or indirectly: (a) intentionally or knowingly solicit, divert, take away,\naccept or attempt to divert or take away any business in which LSI was engaged immediately prior to the date hereof, from any customer of LSI\nor any active prospective customer of LSI with whom Executive became aware or with whom Executive had contact while employed by or a\nbeneficial owner of the Company; or (b) intentionally recruit, solicit, induce or encourage, or attempt to recruit, solicit, induce or encourage any\nformer, current or future employee of LSI, or any person, independent contractor, agent, consultant or supplier of LSI to terminate such person's\nemployment or other relationship with, or otherwise cease to provide or reduce such person's supply of goods and/or services.\n3. Non-Disparagement. Executive shall not disparage or make negative statements (or induce or encourage others to disparage\nor make negative statements) about LSI or any of its present or past equity holders, directors, officers, members, partners, employees or agents.\n4. Non-Competition. During the period of Executive's employment with LSI and for a period of six (6) months following\nExecutive's employment if Executive's employment is terminated by LSI for "Cause", Executive shall not, directly or indirectly, whether as\nprincipal, agent, employee, director, consultant, stockholder, partner, member or in any other capacity, run, own, manage, operate, control, be\nemployed by, provide consulting services to, be an officer or director of, participate in, lend his name to, invest or have any financial or other\ninterest in or be connected in any manner with the management, ownership, operation or control of any business, venture or activity anywhere in\nNorth America and any additional geographic territories where LSI operates that is competitive with the Business; provided, however, that this\nprovision shall not prohibit Executive from acquiring, solely as a passive investment, securities of any entity listed on a national securities\n \nexchange or regularly traded in the over-the-counter market if Executive does not own, collectively, five percent (5%) or more of any class of\nsecurities of such entity.\nFor purposes of this Agreement, the term "Cause" shall mean any of the following: (i) indictment for, conviction of, or plea of guilty or\nno contest by the Executive to a felony, or of any criminal act; (ii) the unreasonable deliberate and material failure or refusal by the Executive to\nperform, consistent with the terms of this Agreement, his employment duties hereunder (other than as a result of PTO, sickness, disability, illness\nor injury), and the failure to rectify the same within thirty (30) days after the Company shall have given notice to the Executive identifying such\nfailure or refusal and demanding that it be rectified; (iii) the Executive's commission of any act of fraud, embezzlement, dishonesty or other\nwillful misconduct that has caused, or would reasonably be expected to cause, material injury or economic harm to the Company; (iv) an act of\ngross negligence on the part of the Executive that has caused, or would reasonably be expected to cause, material injury or economic harm to the\nCompany; (v) a deliberate or material violation of a written material Company policy; or (vi) a material breach of this Agreement (or any\nsuccessor thereto or amendment thereof) which (and only if the same shall be curable) Executive fails to cure within thirty (30) days after the\nCompany shall have given notice to the Executive identifying such breach and demanding that it be cured.\n \n5. Remedies and Enforceability. In addition to any other rights or remedies that may be available, LSI shall be entitled to\nimmediate injunctive relief (including the issuance of a temporary restraining order, preliminary and permanent injunction, if applicable) or other\nappropriate equitable relief in any court of competent jurisdiction, upon the occurrence of a breach by Executive of any of the terms of this\nAgreement. Executive acknowledges and agrees that a violation of the restrictive covenants set forth in this Agreement will cause irreparable\nharm to LSI, that the remedy at law for the same would be inadequate, and that damages would be difficult to determine, and Executive therefore\nconsents to the imposition of equitable remedies, including injunctive relief without the requirement of a bond, if LSI seeks equitable relief as a\nremedy as set forth in this Agreement.\n6. Enforceability. If a court of competent jurisdiction determines that any of the provisions or restrictions of this Agreement are\ninvalid or unenforceable by reason of being unreasonably vague or unreasonable as to the scope of coverage, length of time or geographical area,\nor for any other reason, then and in each such case, the remaining restrictions herein contained shall, nevertheless, remain effective, and this\nAgreement, or any portion hereof, shall be considered to be amended so as to be considered reasonable and enforceable by such court, and the\ncourt shall specifically have the right to restrict the time period or the business or geographical scope of such restrictions to any portion of the\ntime period, business or geographic areas described above to the extent the court deems such restriction to be necessary to cause the covenants to\nbe enforceable, and in such event, the covenants shall be enforced to the extent so permitted.\n7. Severability. If any term or provision of this Agreement is declared illegal or unenforceable by any court of competent\njurisdiction and cannot be modified to be enforceable, such term or provision shall immediately become null and void, leaving the remainder of\nthis Agreement in full force and effect.\n8. Entire Agreement and Amendments. This Agreement shall constitute the entire agreement between the parties and\nsupersedes all existing agreements between them, whether oral or written, with respect to the subject matter hereof.\n9. Successors and Assigns. This Agreement shall be binding and shall inure to the benefit of the parties hereto and their\nrespective successors, assigns, heirs and legal representatives.\n10. Waiver. No waiver of any party hereto of a breach of any provision of this Agreement by any other party shall operate or be\nconstrued as a waiver of any subsequent breach by such other party. The failure of any party hereto to take any action by reason of such breach\nshall not deprive such party of the right to take action at any time while such breach continues.\n11. Governing Law. This Agreement shall be construed in accordance with, and the rights of the parties shall be governed by,\nthe laws of the State of Ohio.\n12. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and\nwhen taken together shall constitute one agreement.\nThe parties have caused this Agreement to be executed by the undersigned duly authorized persons as of the day and year first stated above.\nLSI INDUSTRIES INC.\nBy: /s/ Ronald S. Stowell\nRonald S. Stowell\nVice President, Chief Financial Officer\n/s/ Dennis W. Wells\nDennis W. Wells\nChief Executive Officer	EX-10.2 form8k022717_ex10-2.htm NON-COMPETITION, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT DATED AS\nOF FEBRUARY 24, 2017 BETWEEN LSI INDUSTRIES INC. AND DENNIS W. WELLS.\nEXHIBIT 10.2\nNON-COMPETITION, NON-SOLICITATION\nAND NON-DISCLOSURE AGREEMENT\nThis Non-Competition, Non-Solicitation and Non-Disclosure Agreement (this "Agreement") is made this 24th day of February, 2017,\nby and among LSI Industries Inc., an Ohio corporation ("LSI") and Dennis W. Wells ("Executive").\nWITNESSETH:\nWHEREAS, LSI and its affiliates and subsidiaries are engaged in the business of designing, engineering, manufacturing and marketing\na broad array of lighting and graphics products for commercial/industrial lighting applications and corporate visual image programs (the\n"Business")\nWHEREAS, Executive was initially employed as LSI's Chief Operating Officer and subsequently promoted to Chief Executive Officer\non October 22, 2014 and LSI's President on October 29, 2014;\nWHEREAS, the parties entered into an Employment Agreement as of October 1, 2014, which is being modified by an Amended and\nRestated Employment Agreement (the "Amended Employment Agreement") contemporaneously with this Agreement providing for, among other\nthings, increased compensation and severance benefits, and in return, LSI seeks a renewal and restatement of Executive's commitment to LSI as\ndescribed herein.\nNOW THEREFORE, in consideration of the mutual covenants and agreements set forth below and other good and valuable\nconsideration, the receipt of which is hereby acknowledged, LSI and the Executive hereby agree, as follows:\n1.\nRestrictions on Use and Disclosure of Information.\n(a)\nGeneral Restrictions. Executive hereby acknowledges that, as a result of his relationship with the Company,\nincluding, but not limited to his beneficial interest in LSI and roles in the management and operation of the Business, Executive has acquired\ntrade\nsecrets,\nproprietary\ndata\nand\nconfidential\ninformation\nrelated\nto\nthe\nBusiness.\nExecutive\nagrees\nthat\nhe\nwill\nnot,\nwithout\nthe\nexpress\nwritten\nconsent of LSI, at any time, directly or indirectly, communicate, disclose or divulge to, any person, nor use for his own benefit or the benefit of\nany person, any of the trade secrets, proprietary data or confidential information related to the Business. Executive agrees that such trade secrets,\nproprietary data and confidential information include, but are not limited to, the following: existing and contemplated projects; joint ventures;\nresearch and development programs; work product, business, accounting and financial information and data (except that Executive may provide\nsuch information and data to his financial and legal advisors in connection with the filing of tax returns); marketing plans; pricing, methods and\nprocesses involved in developing, manufacturing, distributing and selling products and services; lists and/or identities of customers, distributors,\nsuppliers and prospective clients; information relating to inventions, modifications, discoveries, designs, developments, improvements,\nenhancements, processes, formulas, data, techniques, computer programs, frameworks, methodology, analytical approaches, works of authorship,\nknow-how, trade secrets, other intellectual property or licensing arrangements; and the identity of any persons or entities associated with or\nengaged as partners, employees, consultants, advisers and/or agents of LSI (collectively, the "Restricted Information").\n(b)\nDisclosure in Proceedings. Notwithstanding the foregoing, Executive may disclose Restricted Information only to\nthe\nextent that disclosure thereof is required by a court or other governmental agency of competent jurisdiction, provided that Executive promptly\nnotifies LSI of any such demand, order or threat (and in any event prior to any such disclosure) and reasonably cooperates with LSI in obtaining\nany available protective order or the equivalent prior to the disclosure of such Restricted Information. LSI agrees to indemnify and hold\nExecutive harmless from and against his refusal to submit to a demand to disclose such Restricted Information and all fees, costs, or expenses\nincurred\nby\nhim\n(including\nreasonable\nattorneys\nfees\nand\ndisbursements)\nin\nresponding\nto\nor\ncontesting\nsuch\ndemand\nor\ncooperating\nwith\nLSI\nin\nobtaining such protective order or equivalent, or in refusing to furnish such Restricted Information.\n2.\nNon-Solicitation. During the period of Executive's employment with LSI and for a period of twelve (12) months after\nemployment with LSI ends for any reason, Executive shall not, directly or indirectly: (a) intentionally or knowingly solicit, divert, take away,\naccept or attempt to divert or take away any business in which LSI was engaged immediately prior to the date hereof, from any customer of LSI\nor any active prospective customer of LSI with whom Executive became aware or with whom Executive had contact while employed by or a\nbeneficial owner of the Company; or (b) intentionally recruit, solicit, induce or encourage, or attempt to recruit, solicit, induce or encourage any\nformer, current or future employee of LSI, or any person, independent contractor, agent, consultant or supplier of LSI to terminate such person's\nemployment or other relationship with, or otherwise cease to provide or reduce such person's supply of goods and/or services.\n3.\nNon-Disparagement Executive shall not disparage or make negative statements (or induce or encourage others to disparage\nor make negative statements) about LSI or any of its present or past equity holders, directors, officers, members, partners, employees or agents.\n4.\nNon-Competition. During the period of Executive's employment with LSI and for a period of six (6) months following\nExecutive's employment if Executive's employment is terminated by LSI for "Cause", Executive shall not, directly or indirectly, whether\nas\nprincipal, agent, employee, director, consultant, stockholder, partner, member or in any other capacity, run, own, manage, operate, control, be\nemployed by, provide consulting services to, be an officer or director of, participate in, lend his name to, invest or have any financial or other\ninterest in or be connected in any manner with the management, ownership, operation or control of any business, venture or activity anywhere in\nNorth America and any additional geographic territories where LSI operates that is competitive with the Business; provided, however, that this\nprovision shall not prohibit Executive from acquiring, solely as a passive investment, securities of any entity listed on a national securities\nexchange or regularly traded in the over-the-counter market if Executive does not own, collectively, five percent (5%) or more of any class\nof\nsecurities of such entity.\nFor purposes of this Agreement, the term "Cause" shall mean any of the following: (i) indictment for, conviction of, or plea of guilty or\nno contest by the Executive to a felony, or of any criminal act; (ii) the unreasonable deliberate and material failure or refusal by the Executive to\nperform, consistent with the terms of this Agreement, his employment duties hereunder (other than as a result of PTO, sickness, disability, illness\nor\ninjury),\nand\nthe\nfailure\nto\nrectify\nthe\nsame\nwithin\nthirty\n(30)\ndays\nafter\nthe\nCompany\nshall\nhave\ngiven\nnotice\nto\nthe\nExecutive\nidentifying\nsuch\nfailure or refusal and demanding that it be rectified; (iii) the Executive's commission of any act of fraud, embezzlement, dishonesty or other\nwillful misconduct that has caused, or would reasonably be expected to cause, material injury or economic harm to the Company; (iv) an act of\ngross\nnegligence on the part of the Executive that has caused, or would reasonably be expected to cause, material injury or economic harm to\nthe\nCompany; (v) a deliberate or material violation of a written material Company policy; or (vi) a material breach of this Agreement (or any\nsuccessor thereto or amendment thereof) which (and only if the same shall be curable) Executive fails to cure within thirty (30) days after the\nCompany shall have given notice to the Executive identifying such breach and demanding that it be cured.\n5.\nRemedies and Enforceability.. In addition to any other rights or remedies that may be available, LSI shall be entitled to\nimmediate\ninjunctive\nrelief\n(including\nthe\nissuance\nof\na\ntemporary\nrestraining\norder,\npreliminary\nand\npermanent\ninjunction,\nif\napplicable)\nor\nother\nappropriate equitable relief in any court of competent jurisdiction, upon the occurrence of a breach by Executive of any of the terms of this\nAgreement. Executive acknowledges and agrees that a violation of the restrictive covenants set forth in this Agreement will cause irreparable\nharm to LSI, that the remedy at law for the same would be inadequate, and that damages would be difficult to determine, and Executive therefore\nconsents to the imposition of equitable remedies, including injunctive relief without the requirement of a bond, if LSI seeks equitable relief as a\nremedy as set forth in this Agreement.\n6.\nEnforceability.. If a court of competent jurisdiction determines that any of the provisions or restrictions of this Agreement are\ninvalid or unenforceable by reason of being unreasonably vague or unreasonable as to the scope of coverage, length of time or geographical area,\nor for any other reason, then and in each such case, the remaining restrictions herein contained shall, nevertheless, remain effective, and this\nAgreement, or any portion hereof, shall be considered to be amended so as to be considered reasonable and enforceable by such court, and the\ncourt shall specifically have the right to restrict the time period or the business or geographical scope of such restrictions to any portion of the\ntime period, business or geographic areas described above to the extent the court deems such restriction to be necessary to cause the covenants\nto\nbe enforceable, and in such event, the covenants shall be enforced to the extent so permitted.\n7.\nSeverability. If any term or provision of this Agreement is declared illegal or unenforceable by any court of competent\njurisdiction and cannot be modified to be enforceable, such term or provision shall immediately become null and void, leaving the remainder of\nthis Agreement in full force and effect.\n8.\nEntire Agreement and Amendments. This Agreement shall constitute the entire agreement between the parties and\nsupersedes all existing agreements between them, whether oral or written, with respect to the subject matter hereof.\n9.\nSuccessors and Assigns. This Agreement shall be binding and shall inure to the benefit of the parties hereto and their\nrespective successors, assigns, heirs and legal representatives.\n10.\nWaiver. No waiver of any party hereto of a breach of any provision of this Agreement by any other party shall operate or be\nconstrued as a waiver of any subsequent breach by such other party. The failure of any party hereto to take any action by reason of such breach\nshall not deprive such party of the right to take action at any time while such breach continues.\n11.\nGoverning Law. This Agreement shall be construed in accordance with, and the rights of the parties shall be governed by,\nthe laws of the State of Ohio.\n12.\nCounterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and\nwhen taken together shall constitute one agreement.\nThe parties have caused this Agreement to be executed by the undersigned duly authorized persons as of the day and year first stated above.\nLSI INDUSTRIES INC.\nBy: /s/ Ronald S. Stowell\nRonald S. Stowell\nVice President, Chief Financial Officer\n/s/ Dennis W. Wells\nDennis W. Wells\nChief Executive Officer	EX-10 .2 3 form8k022717_ex10-2 .htm NON-COMPETITION, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT DATED AS\nOF FEBRUARY 24, 2017 BETWEEN LSI INDUSTRIES INC. AND DENNIS W. WELLS.\nEXHIBIT 10.2\nNON-COMPETITION, NON-SOLICITATION\nAND NON-DISCLOSURE AGREEMENT\nThis Non-Competition, Non-Solicitation and Non-Disclosure Agreement (this "Agreement") is made this 24th day of February, 2017,\nby and among LSI Industries Inc., an Ohio corporation ("LSI") and Dennis W. Wells ("Executive").\nWITNESSETH:\nWHEREAS, LSI and its affiliates and subsidiaries are engaged in the business of designing, engineering, manufacturing and marketing\na broad array of lighting and graphics products for commercial/industrial lighting applications and corporate visual image programs (the\n"Business")\nWHEREAS, Executive was initially employed as LSI's Chief Operating Officer and subsequently promoted to Chief Executive Officer\non October 22, 2014 and LSI's President on October 29, 2014;\nWHEREAS, the parties entered into an Employment Agreement as of October 1, 2014, which is being modified by an Amended and\nRestated Employment Agreement (the "Amended Employment Agreement") contemporaneously with this Agreement providing for, among other\nthings, increased compensation and severance benefits, and in return, LSI seeks a renewal and restatement of Executive's commitment to LSI as\ndescribed herein.\nNOW THEREFORE, in consideration of the mutual covenants and agreements set forth below and other good and valuable\nconsideration, the receipt of which is hereby acknowledged, LSI and the Executive hereby agree, as follows:\n1.\nRestrictions on Use and Disclosure of Information.\n(a)\nGeneral Restrictions. Executive hereby acknowledges that, as a result of his relationship with the Company,\nincluding, but not limited to his beneficial interest in LSI and roles in the management and operation of the Business, Executive has acquired\ntrade secrets, proprietary data and confidential information related to the Business. Executive agrees that he will not, without the express written\nconsent of LSI, at any time, directly or indirectly, communicate, disclose or divulge to, any person, nor use for his own benefit or the benefit of\nany person, any of the trade secrets, proprietary data or confidential information related to the Business. Executive agrees that such trade secrets,\nproprietary data and confidential information include, but are not limited to, the following: existing and contemplated projects; joint ventures;\nresearch and development programs; work product, business, accounting and financial information and data (except that Executive may provide\nsuch information and data to his financial and legal advisors in connection with the filing of tax returns); marketing plans; pricing, methods and\nprocesses involved in developing, manufacturing, distributing and selling products and services; lists and/or identities of customers, distributors,\nsuppliers and prospective clients; information relating to inventions, modifications, discoveries, designs, developments, improvements,\nenhancements, processes, formulas, data, techniques, computer programs, frameworks, methodology, analytical approaches, works of authorship,\nknow-how, trade secrets, other intellectual property or licensing arrangements; and the identity of any persons or entities associated with or\nengaged as partners, employees, consultants, advisers and/or agents of LSI (collectively, the "Restricted Information").\n(b)\nDisclosure in Proceedings. Notwithstanding the foregoing, Executive may disclose Restricted Information only to\nthe extent that disclosure thereof is required by a court or other governmental agency of competent jurisdiction, provided that Executive promptly\nnotifies LSI of any such demand, order or threat (and in any event prior to any such disclosure) and reasonably cooperates with LSI in obtaining\nany available protective order or the equivalent prior to the disclosure of such Restricted Information. LSI agrees to indemnify and hold\nExecutive harmless from and against his refusal to submit to a demand to disclose such Restricted Information and all fees, costs, or expenses\nincurred by him (including reasonable attorneys fees and disbursements) in responding to or contesting such demand or cooperating with LSI in\nobtaining such protective order or equivalent, or in refusing to furnish such Restricted Information.\n2.\nNon-Solicitation. During the period of Executive's employment with LSI and for a period of twelve (12) months after\nemployment with LSI ends for any reason, Executive shall not, directly or indirectly: (a) intentionally or knowingly solicit, divert, take away,\naccept or attempt to divert or take away any business in which LSI was engaged immediately prior to the date hereof, from any customer of LSI\nor any active prospective customer of LSI with whom Executive became aware or with whom Executive had contact while employed by or a\nbeneficial owner of the Company; or (b) intentionally recruit, solicit, induce or encourage, or attempt to recruit, solicit, induce or encourage any\nformer, current or future employee of LSI, or any person, independent contractor, agent, consultant or supplier of LSI to terminate such person's\nemployment or other relationship with, or otherwise cease to provide or reduce such person's supply of goods and/or services.\n3.\nNon-Disparagement. Executive shall not disparage or make negative statements (or induce or encourage others to disparage\nor make negative statements) about LSI or any of its present or past equity holders, directors, officers, members, partners, employees or agents.\n4.\nNon-Competition. During the period of Executive's employment with LSI and for a period of six (6) months following\nExecutive's employment if Executive's employment is terminated by LSI for "Cause", Executive shall not, directly or indirectly, whether as\nprincipal, agent, employee, director, consultant, stockholder, partner, member or in any other capacity, run, own, manage, operate, control, be\nemployed by, provide consulting services to, be an officer or director of, participate in, lend his name to, invest or have any financial or other\ninterest in or be connected in any manner with the management, ownership, operation or control of any business, venture or activity anywhere in\nNorth America and any additional geographic territories where LSI operates that is competitive with the Business; provided, however, that this\nprovision shall not prohibit Executive from acquiring, solely as a passive investment, securities of any entity listed on a national securities\nexchange or regularly traded in the over-the-counter market if Executive does not own, collectively, five percent (5%) or more of any class of\nsecurities of such entity.\nFor purposes of this Agreement, the term "Cause" shall mean any of the following: (i) indictment for, conviction of, or plea of guilty or\nno contest by the Executive to a felony, or of any criminal act; (ii) the unreasonable deliberate and material failure or refusal by the Executive to\nperform, consistent with the terms of this Agreement, his employment duties hereunder (other than as a result of PTO, sickness, disability, illness\nor injury), and the failure to rectify the same within thirty (30) days after the Company shall have given notice to the Executive identifying such\nfailure or refusal and demanding that it be rectified; (iii) the Executive's commission of any act of fraud, embezzlement, dishonesty or other\nwillful misconduct that has caused, or would reasonably be expected to cause, material injury or economic harm to the Company; (iv) an act of\ngross negligence on the part of the Executive that has caused, or would reasonably be expected to cause, material injury or economic harm to the\nCompany; (v) a deliberate or material violation of a written material Company policy; or (vi) a material breach of this Agreement (or any\nsuccessor thereto or amendment thereof) which (and only if the same shall be curable) Executive fails to cure within thirty (30) days after the\nCompany shall have given notice to the Executive identifying such breach and demanding that it be cured.\n5.\nRemedies and Enforceability. In addition to any other rights or remedies that may be available, LSI shall be entitled to\nimmediate injunctive relief (including the issuance of a temporary restraining order, preliminary and permanent injunction, if applicable) or other\nappropriate equitable relief in any court of competent jurisdiction, upon the occurrence of a breach by Executive of any of the terms of this\nAgreement. Executive acknowledges and agrees that a violation of the restrictive covenants set forth in this Agreement will cause irreparable\nharm to LSI, that the remedy at law for the same would be inadequate, and that damages would be difficult to determine, and Executive therefore\nconsents to the imposition of equitable remedies, including injunctive relief without the requirement of a bond, if LSI seeks equitable relief as a\nremedy as set forth in this Agreement.\n6.\nEnforceability. If a court of competent jurisdiction determines that any of the provisions or restrictions of this Agreement are\ninvalid or unenforceable by reason of being unreasonably vague or unreasonable as to the scope of coverage, length of time or geographical area,\nor for any other reason, then and in each such case, the remaining restrictions herein contained shall, nevertheless, remain effective, and this\nAgreement, or any portion hereof, shall be considered to be amended so as to be considered reasonable and enforceable by such court, and the\ncourt shall specifically have the right to restrict the time period or the business or geographical scope of such restrictions to any portion of the\ntime period, business or geographic areas described above to the extent the court deems such restriction to be necessary to cause the covenants to\nbe enforceable, and in such event, the covenants shall be enforced to the extent so permitted.\n7.\nSeverability. If any term or provision of this Agreement is declared illegal or unenforceable by any court of competent\njurisdiction and cannot be modified to be enforceable, such term or provision shall immediately become null and void, leaving the remainder of\nthis Agreement in full force and effect.\n8.\nEntire Agreement and Amendments. This Agreement shall constitute the entire agreement between the parties and\nsupersedes all existing agreements between them, whether oral or written, with respect to the subject matter hereof.\n9.\nSuccessors and Assigns. This Agreement shall be binding and shall inure to the benefit of the parties hereto and their\nrespective successors, assigns, heirs and legal representatives.\n10.\nWaiver. No waiver of any party hereto of a breach of any provision of this Agreement by any other party shall operate or be\nconstrued as a waiver of any subsequent breach by such other party. The failure of any party hereto to take any action by reason of such breach\nshall not deprive such party of the right to take action at any time while such breach continues.\n11.\nGoverning Law. This Agreement shall be construed in accordance with, and the rights of the parties shall be governed by,\nthe laws of the State of Ohio.\n12.\nCounterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and\nwhen taken together shall constitute one agreement.\nThe parties have caused this Agreement to be executed by the undersigned duly authorized persons as of the day and year first stated above.\nLSI INDUSTRIES INC.\nBy: /s/ Ronald S. Stowell\nRonald S. Stowell\nVice President, Chief Financial Officer\n/s/ Dennis W. Wells\nDennis W. Wells\nChief Executive Officer
02663ab1234ba5aec4cf370839a28eff.pdf	effective_date jurisdiction party term	EX-99.(D)(3)(I) 10 d552900dex99d3i.htm EX-99.(D)(3)(I)\nExhibit (d)(3)(i)\nMutual Non-Disclosure Agreement\nIn order to protect certain Confidential Information (as defined below)\nVeramark Technologies, Inc., for itself and its subsidiaries, affiliates\nand representatives (the “Company”), and Clearlake Capital Group,\nL.P., for itself and its subsidiaries, affiliates and representatives\n(“Participant”), individually referred to as a “Party” and collectively\nreferred to as the “Parties”, agree that:\n1. Effective Date: The effective date of this non-disclosure\nagreement (“Agreement”) is May 8, 2013 (“Effective Date”).\n2. All Information: The Agreement shall apply to all Confidential\nInformation disclosed between the Parties.\n3. Definitions: Confidential information (“Confidential\nInformation”) generally shall mean all information that is\nfurnished by or on behalf of a Party to or for the other Party,\nwhether in written, oral, electronic, Web site-based, or other form,\nand any copies, reports, analyses, compilations, or studies which\ncontain, otherwise reflect or are generated from such information;\nprovided, that the information is identified as such pursuant to\nSection 8 of this Agreement. Confidential Information includes,\nbut is not limited to, customer and vendor-related data,\nservices/support information, and information about products,\narchitectures, software, strategies, plans, techniques, drawings,\ndesigns, specifications, technical or know-how data, research and\ndevelopment, ideas, trade secrets, inventions, and patent\ndisclosures that may be disclosed between the Parties.\n4. Disclosure: Without the prior written consent of the other Party,\neach Party agrees not to issue or release any articles, advertising,\npublicity or other communication relating to any Confidential\nInformation of the other Party. Additionally, each Party agrees not\nto disclose that a meeting or discussions are taking or have taken\nplace between the Parties, that Confidential Information has been\nmade available, or that a transaction involving the Parties is under\nconsideration or mentioning or implying the name of the other\nParty or the status of discussions, except as may be required by\nlaw and then only after providing the other Party with an\nopportunity to review and comment thereon. Participant agrees\nthat any communication regarding a possible transaction will be\nsolely with designated officers, employees or representatives of\nthe Company, including America’s Growth Capital, and further\nagrees not to discuss any possible transaction with any employee,\nshareholder, commercial partner, or customer of the Company\nexcept as authorized by an officer of the Company or America’s\nGrowth Capital.\n5. Termination: This Agreement shall remain in effect until it is\nterminated by either Party with thirty (30) days prior written\nnotice. The terms and conditions of this Agreement shall survive\nany such termination with respect to Confidential Information\nthat is disclosed prior to the effective date of termination. The\nParties receiving\nConfidential Information (each, a “Recipient”) from the other\nParties disclosing Confidential Information (each, a “Discloser”)\nwill use the Confidential Information solely for the purpose of\nevaluating or undertaking a possible mutually-agreeable financial\nor other transaction with or regarding the other Party.\n6. Term: Unless the Parties otherwise agree in writing, a Recipient’s\nduty to protect Confidential Information expires two (2) years\nfrom the date of disclosure. A Recipient, upon Discloser’s written\nrequest, will promptly return or destroy, at Recipient’s election\nand with written certification to Company, all Confidential\nInformation received from the Discloser, together with all copies,\nor certify in writing that all such Confidential Information and\ncopies thereof have been destroyed.\n7. Degree of Care: A Recipient will use the same degree of care,\nbut no less than a reasonable degree of care, as the Recipient uses\nwith respect to its own similar information to protect the\nConfidential Information. Recipient shall prevent (a) any use of\nConfidential Information not authorized in this Agreement,\n(b) dissemination of Confidential Information to any employee of\nRecipient without a need to know, (c) communication of\nConfidential Information to any third party or (d) publication of\nConfidential Information.\n8. Identification of Confidential Information: A Recipient will\nhave a duty to protect Confidential Information (a) if it is marked\nor accompanied by documents clearly and conspicuously\ndesignating them as “confidential” or the equivalent; or (b) if it is\nidentified by the Discloser as confidential before, during or\npromptly after the presentation or communication; or (c) if it\nshould reasonably be understood as confidential from the nature\nof the information and/or circumstances under which it is\ndisclosed.\n9. Other Transactions: Notwithstanding any provision of this\nagreement to the contrary, this agreement shall not limit, restrict\nor impair the ability of either Party or its Representatives to\nengage in transactions with respect to securities, instruments and\ninterests of the other party or any other person or entity, so long as\nsuch transactions do not violate applicable United States\nsecurities laws, provided, however, from and after the date of this\nagreement and until four (4) months after the date first written\nabove, you will not in any manner, directly or indirectly, without\nthe prior written consent of the Company’s Board of Directors:\n(i) acquire, offer to acquire or agree to acquire, directly or\nindirectly, by purchase or otherwise, more than 2% of any class of\nsecurities or direct or Indirect rights to acquire more than 2% of\nany class of securities of the Company or any subsidiary, or of\nany successor to the Company, or more than 2% of any assets of\nthe Company, subsidiary or division thereof or of any such\nsuccessor; (ii) make, or in any way participate in, directly or\nindirectly, any “solicitation” of “proxies” or consents to vote (as\nsuch terms are used in the\nrules of the Securities and Exchange Commission), or seek to\nadvise or influence any person with respect to the voting of any\nsecurities of the Company, (iii) make any public announcement\nwith respect to, or submit a proposal for, or offer of (with or\nwithout conditions) any extraordinary transaction involving the\nCompany or any of its securities or assets, including, without\nlimitation, any merger, recapitalization, restructuring, liquidation,\ndissolution, tender offer, exchange offer, reorganization or\nbusiness combination; (iv) form, join or in any way participate in\na “group” (as defined In Section 13(d)(3) of the Securities\nExchange Act of 1934, as amended) with respect to any securities\nof the Company; (v) otherwise act, alone or in concert with\nothers, to seek control or influence the management, Board of\nDirectors or policies of the Company; or (vi) enter into any\ndiscussions, negotiations or arrangements or advise, assist or\nencourage any other persons in connection with any of the\nforegoing, except in consideration of a transaction contemplated\nby this Agreement.\n10. Public Information: This Agreement imposes no obligation\nupon a Recipient with respect to Confidential Information which\n(a) the Recipient can demonstrate was already in its possession\nbefore receipt from the Discloser; (b) is or becomes publicly\navailable through no fault of the Recipient; (c) is rightfully\nreceived by the Recipient from a third party not known to be\nbound by a duty of confidentiality; or (d) is independently\ndeveloped by the Recipient without a breach of this Agreement. If\na Recipient is required by a government body or court of law to\ndisclose Confidential Information, the Recipient agrees to give\nthe Discloser reasonable advance notice, if legally permissible, so\nthat Discloser may contest the disclosure or seek a protective\norder at its sole expense, but Recipient may otherwise disclose\nConfidential Information to the government body or court of law\nwithout liability hereunder; provided it will limit the disclosure to\nonly that information necessary to comply with such requirement\nor law.\n11. Right to Disclose: EACH DISCLOSER WARRANTS THAT\nIT HAS THE RIGHT TO DISCLOSE ITS CONFIDENTIAL\nINFORMATION. NO OTHER WARRANTIES ARE MADE\nAND NO RESPONSIBILITY OR LIABILITY IS OR WILL\nBE ACCEPTED BY EITHER PARTY IN RELATION TO\nOR AS TO THE ACCURACY OR COMPLETENESS OF\nTHE CONFIDENTIAL INFORMATION. ALL\nCONFIDENTIAL INFORMATION IS PROVIDED “AS IS”.\n12. No Obligation: This Agreement imposes no obligation on a Party\nto exchange Confidential Information or to enter into any\ntransaction.\n13. Export Compliance: A Recipient will adhere to all applicable\nlaws and regulations of the U.S. Export Administration and will\nnot export or re-export any technical data or products received\nfrom a Discloser, or the\ndirect product of such technical data, to any proscribed country\nlisted in the U.S . Export Administration regulations, or foreign\nnational thereof, unless properly authorized by the U.S.\nGovernment.\n14. Intellectual Property: No Party acquires any intellectual\nproperty rights under this Agreement except the limited rights\nnecessary to carry out the purposes as set forth in this Agreement.\nSubject to the obligations of this Agreement, no Party will be\nprecluded from independently developing technology or pursuing\nbusiness opportunities similar to those covered by this\nAgreement. Each Party retains sole discretion to assign or\nreassign the job responsibilities of its employees.\n15. Non-Solicitation: For one year from the Effective Date of this\nAgreement, Participant agrees not to, either directly or through\nothers, solicit or attempt to solicit any employee of the Company\nto terminate his, her or its relationship with the Company;\nprovided, that the foregoing will not prohibit Participant from\nhiring a Company employee who (i) applies for a position with\nParticipant or its affiliates without any specific solicitation or as a\nresult of a general solicitation via advertisements for employment\nor searches not specifically directed towards employees of the\nCompany; (ii) is hired by a portfolio company of Participant\nwithout the knowledge of, direction or encouragement of\nParticipant; or (iii) terminated by the Company.\n16. Damages: Each Party acknowledges that damages for breach of\nthis Agreement may be irreparable; therefore, the injured Party\nmay be entitled to seek equitable relief, including injunction and\npreliminary injunction, in addition to all other remedies available\nat law or in equity.\n17. Enforcement: The obligations and duties imposed by this\nAgreement with respect to any Confidential Information may be\nenforced by the Discloser of such Confidential Information\nagainst any and all Recipients of such Confidential Information.\n18. Jurisdiction: This Agreement is made under, and will be\nconstrued according to, the laws of the State of Delaware.\n19. Severability: If any provision of this Agreement is found to be\ninvalid or unenforceable in whole or in part, the Parties agree that\nsuch provision shall be reformed and construed to the maximum\nextent enforceable, and that the remaining provisions shall remain\nvalid and enforceable to the maximum extent compatible with\nlaw.\n20. Consent: This Agreement does not create any agency or\npartnership relationship. This Agreement will not be assignable or\ntransferable without the prior written consent of the other Party.\nAll additions or modifications to this Agreement must be made in\nwriting and must be signed by all Parties. Each Party agrees that\nfacsimile signatures will have the same legal effect as originals\nsignatures and may be used as evidence of execution.\nVeramark Technologies, Inc.\nClearlake Capital Group, L.P.\nBy:\n/s/ Anthony C. Mazzullo\nBy:\n/s/ Behdad Eghbali\nName:\nAnthony C. Mazzullo\nName:\nBehdad Eghbali\nTitle:\nPresident, Chief Executive Officer\nTitle:\nManager\nAddress:\n1565 Jefferson Road Suite 120\nAddress:\n233 Wilshire Boulevard, Suite 800\nCity, State, Zip: Rochester, NY 14623\nCity, State, Zip: Santa Monica, California 90401\nDate:\nMay 8, 2013\nDate:\nMay 8, 2013\n21. Headings: The headings in this Agreement are included for\nconvenience only and shall neither affect the construction or\ninterpretation of any provision of this Agreement nor affect any of\nthe rights or obligations of the parties to this Agreement.\n22. No Obligation. Nothing in this Agreement or otherwise obligates\nthe Company to share any information to the Participant or to\nenter into any discussions or negotiations with respect to any\ntransaction(s). The Company shall not be bound to any\ntransaction with the Participant unless and until a definitive\nagreement is executed and delivered by the parties. For avoidance\nof doubt, Participant also shall be under no obligation to affect an\ninvestment or enter into a transaction with the Company. The\nCompany acknowledges that, as a private equity investor,\nParticipant considers, makes, and has made investments in a\nvariety of markets and that Participant’s participation in the\nevaluation of the Company for an investment may enhance the\nunderstanding of Participant, its affiliates and its and their\nrepresentatives of the markets in\nwhich Participant, its affiliates and its and their representatives\nmay now, or in the future, compete as a principal investor or\noperator and that such further understanding will not, in and of\nitself, be considered a violation of this Agreement, provided that\nParticipant does not breach this Agreement. In addition, Company\nacknowledges that Participant, its affiliates (including its portfolio\ncompanies) and its and their representatives are or may become\ninvolved in businesses that are similar or identical to Company’s\nbusiness, and Company agrees that Participant, its affiliates\n(including its portfolio companies) and its and their\nrepresentatives shall not be restricted or prohibited from operating\ntheir respective businesses in the ordinary course, including those\nbusinesses that compete with Company’s business, or from\nmaking any investments in any such businesses, provided\nParticipant does not breach this Agreement.	EX-99.(D)(3)(I) 10 d552900dex99d3i.htm EX-99.(D)(3)(I) Exhibit (d)(3)(i)\nMutual Non-Disclosure Agreement In order to protect certain Confidential Information (as defined below)\nVeramark Technologies, Inc., for itself and its subsidiaries, affiliates\nand representatives (the “Company”), and Clearlake Capital Group,\nL.P,, for itself and its subsidiaries, affiliates and representatives\n(“Participant”), individually referred to as a “Party” and collectively\nreferred to as the “Parties”, agree that:\n1. Effective Date: The effective date of this non-disclosure\nagreement (“Agreement”) is May 8, 2013 (“Effective Date”).\n2. All Information: The Agreement shall apply to all Confidential\nInformation disclosed between the Parties.\n3. Definitions: Confidential information (“Confidential\nInformation”) generally shall mean all information that is\nfurnished by or on behalf of a Party to or for the other Party,\nwhether in written, oral, electronic, Web site-based, or other form,\nand any copies, reports, analyses, compilations, or studies which\ncontain, otherwise reflect or are generated from such information;\nprovided, that the information is identified as such pursuant to\nSection 8 of this Agreement. Confidential Information includes,\nbut is not limited to, customer and vendor-related data,\nservices/support information, and information about products,\narchitectures, software, strategies, plans, techniques, drawings,\ndesigns, specifications, technical or know-how data, research and\ndevelopment, ideas, trade secrets, inventions, and patent\ndisclosures that may be disclosed between the Parties.\n4. Disclosure: Without the prior written consent of the other Party,\neach Party agrees not to issue or release any articles, advertising,\npublicity or other communication relating to any Confidential\nInformation of the other Party. Additionally, each Party agrees not\nto disclose that a meeting or discussions are taking or have taken\nplace between the Parties, that Confidential Information has been\nmade available, or that a transaction involving the Parties is under\nconsideration or mentioning or implying the name of the other\nParty or the status of discussions, except as may be required by\nlaw and then only after providing the other Party with an\nopportunity to review and comment thereon. Participant agrees\nthat any communication regarding a possible transaction will be\nsolely with designated officers, employees or representatives of\nthe Company, including America’s Growth Capital, and further\nagrees not to discuss any possible transaction with any employee,\nshareholder, commercial partner, or customer of the Company\nexcept as authorized by an officer of the Company or America’s\nGrowth Capital.\n5. Termination: This Agreement shall remain in effect until it is\nterminated by either Party with thirty (30) days prior written\nnotice. The terms and conditions of this Agreement shall survive\nany such termination with respect to Confidential Information\nthat is disclosed prior to the effective date of termination. The\nParties receiving\nConfidential Information (each, a “Recipient”) from the other\nParties disclosing Confidential Information (each, a “Discloser”)\nwill use the Confidential Information solely for the purpose of\nevaluating or undertaking a possible mutually-agreeable financial\nor other transaction with or regarding the other Party.\nTerm: Unless the Parties otherwise agree in writing, a Recipient’s\nduty to protect Confidential Information expires two (2) years\nfrom the date of disclosure. A Recipient, upon Discloser’s written\nrequest, will promptly return or destroy, at Recipient’s election\nand with written certification to Company, all Confidential\nInformation received from the Discloser, together with all copies,\nor certify in writing that all such Confidential Information and\ncopies thereof have been destroyed.\nDegree of Care: A Recipient will use the same degree of care,\nbut no less than a reasonable degree of care, as the Recipient uses\nwith respect to its own similar information to protect the\nConfidential Information. Recipient shall prevent (a) any use of\nConfidential Information not authorized in this Agreement,\n(b) dissemination of Confidential Information to any employee of\nRecipient without a need to know, (c) communication of\nConfidential Information to any third party or (d) publication of\nConfidential Information.\nIdentification of Confidential Information: A Recipient will\nhave a duty to protect Confidential Information (a) if it is marked\nor accompanied by documents clearly and conspicuously\ndesignating them as “confidential” or the equivalent; or (b) if it is\nidentified by the Discloser as confidential before, during or\npromptly after the presentation or communication; or (c) if it\nshould reasonably be understood as confidential from the nature\nof the information and/or circumstances under which it is\ndisclosed.\nOther Transactions: Notwithstanding any provision of this\nagreement to the contrary, this agreement shall not limit, restrict\nor impair the ability of either Party or its Representatives to\nengage in transactions with respect to securities, instruments and\ninterests of the other party or any other person or entity, so long as\nsuch transactions do not violate applicable United States\nsecurities laws, provided, however, from and after the date of this\nagreement and until four (4) months after the date first written\nabove, you will not in any manner, directly or indirectly, without\nthe prior written consent of the Company’s Board of Directors:\n(i) acquire, offer to acquire or agree to acquire, directly or\nindirectly, by purchase or otherwise, more than 2% of any class of\nsecurities or direct or Indirect rights to acquire more than 2% of\nany class of securities of the Company or any subsidiary, or of\nany successor to the Company, or more than 2% of any assets of\nthe Company, subsidiary or division thereof or of any such\nsuccessor; (ii) make, or in any way participate in, directly or\nindirectly, any “solicitation” of “proxies” or consents to vote (as\nsuch terms are used in the\n10. 11. 12. 13. rules of the Securities and Exchange Commission), or seek to\nadvise or influence any person with respect to the voting of any\nsecurities of the Company, (iii) make any public announcement\nwith respect to, or submit a proposal for, or offer of (with or\nwithout conditions) any extraordinary transaction involving the 14 Company or any of its securities or assets, including, without\nlimitation, any merger, recapitalization, restructuring, liquidation,\ndissolution, tender offer, exchange offer, reorganization or\nbusiness combination; (iv) form, join or in any way participate in\na “group” (as defined In Section 13(d)(3) of the Securities\nExchange Act of 1934, as amended) with respect to any securities\nof the Company; (v) otherwise act, alone or in concert with\nothers, to seek control or influence the management, Board of\nDirectors or policies of the Company; or (vi) enter into any 15. discussions, negotiations or arrangements or advise, assist or\nencourage any other persons in connection with any of the\nforegoing, except in consideration of a transaction contemplated\nby this Agreement.\nPublic Information: This Agreement imposes no obligation\nupon a Recipient with respect to Confidential Information which\n(a) the Recipient can demonstrate was already in its possession\nbefore receipt from the Discloser; (b) is or becomes publicly\navailable through no fault of the Recipient; (c) is rightfully\nreceived by the Recipient from a third party not known to be\nbound by a duty of confidentiality; or (d) is independently\ndeveloped by the Recipient without a breach of this Agreement. If 16. a Recipient is required by a government body or court of law to\ndisclose Confidential Information, the Recipient agrees to give\nthe Discloser reasonable advance notice, if legally permissible, so\nthat Discloser may contest the disclosure or seek a protective\norder at its sole expense, but Recipient may otherwise disclose 17. Confidential Information to the government body or court of law\nwithout liability hereunder; provided it will limit the disclosure to\nonly that information necessary to comply with such requirement\nor law.\nRight to Disclose: EACH DISCLOSER WARRANTS THAT\nIT HAS THE RIGHT TO DISCLOSE ITS CONFIDENTIAL\nINFORMATION. NO OTHER WARRANTIES ARE MADE\nAND NO RESPONSIBILITY OR LIABILITY IS OR WILL\nBE ACCEPTED BY EITHER PARTY IN RELATION TO\nOR AS TO THE ACCURACY OR COMPLETENESS OF\nTHE CONFIDENTIAL INFORMATION. ALL\nCONFIDENTIAL INFORMATION IS PROVIDED “AS IS”.\n18. 19. 20. No Obligation: This Agreement imposes no obligation on a Party\nto exchange Confidential Information or to enter into any\ntransaction.\nExport Compliance: A Recipient will adhere to all applicable\nlaws and regulations of the U.S. Export Administration and will\nnot export or re-export any technical data or products received\nfrom a Discloser, or the\ndirect product of such technical data, to any proscribed country\nlisted in the U.S. Export Administration regulations, or foreign\nnational thereof, unless properly authorized by the U.S.\nGovernment.\nIntellectual Property: No Party acquires any intellectual\nproperty rights under this Agreement except the limited rights\nnecessary to carry out the purposes as set forth in this Agreement.\nSubject to the obligations of this Agreement, no Party will be\nprecluded from independently developing technology or pursuing\nbusiness opportunities similar to those covered by this\nAgreement. Each Party retains sole discretion to assign or\nreassign the job responsibilities of its employees.\nNon-Solicitation: For one year from the Effective Date of this\nAgreement, Participant agrees not to, either directly or through\nothers, solicit or attempt to solicit any employee of the Company\nto terminate his, her or its relationship with the Company;\nprovided, that the foregoing will not prohibit Participant from\nhiring a Company employee who (i) applies for a position with\nParticipant or its affiliates without any specific solicitation or as a\nresult of a general solicitation via advertisements for employment\nor searches not specifically directed towards employees of the\nCompany; (ii) is hired by a portfolio company of Participant\nwithout the knowledge of, direction or encouragement of\nParticipant; or (iii) terminated by the Company.\nDamages: Each Party acknowledges that damages for breach of\nthis Agreement may be irreparable; therefore, the injured Party\nmay be entitled to seek equitable relief, including injunction and\npreliminary injunction, in addition to all other remedies available\nat law or in equity.\nEnforcement: The obligations and duties imposed by this\nAgreement with respect to any Confidential Information may be\nenforced by the Discloser of such Confidential Information\nagainst any and all Recipients of such Confidential Information.\nJurisdiction: This Agreement is made under, and will be\nconstrued according to, the laws of the State of Delaware.\nSeverability: If any provision of this Agreement is found to be\ninvalid or unenforceable in whole or in part, the Parties agree that\nsuch provision shall be reformed and construed to the maximum\nextent enforceable, and that the remaining provisions shall remain\nvalid and enforceable to the maximum extent compatible with\nlaw.\nConsent: This Agreement does not create any agency or\npartnership relationship. This Agreement will not be assignable or\ntransferable without the prior written consent of the other Party.\nAll additions or modifications to this Agreement must be made in\nwriting and must be signed by all Parties. Each Party agrees that\nfacsimile signatures will have the same legal effect as originals\nsignatures and may be used as evidence of execution.\n21.\n22.\nHeadings: The headings in this Agreement are included for\nconvenience only and shall neither affect the construction or\ninterpretation of any provision of this Agreement nor affect any of\nthe rights or obligations of the parties to this Agreement.\nNo Obligation. Nothing in this Agreement or otherwise obligates\nthe Company to share any information to the Participant or to\nenter into any discussions or negotiations with respect to any\ntransaction(s). The Company shall not be bound to any\ntransaction with the Participant unless and until a definitive\nagreement is executed and delivered by the parties. For avoidance\nof doubt, Participant also shall be under no obligation to affect an\ninvestment or enter into a transaction with the Company. The\nCompany acknowledges that, as a private equity investor,\nParticipant considers, makes, and has made investments in a\nvariety of markets and that Participant’s participation in the\nevaluation of the Company for an investment may enhance the\nunderstanding of Participant, its affiliates and its and their\nrepresentatives of the markets in\nVeramark Technologies, Inc. By: /s/ Anthony C. Mazzullo\nName: Anthony C. Mazzullo\nTitle: President, Chief Executive Officer\nAddress: 1565 Jefferson Road Suite 120\nCity, State, Zip: Rochester, NY 14623\nDate: May 8, 2013\nwhich Participant, its affiliates and its and their representatives\nmay now, or in the future, compete as a principal investor or\noperator and that such further understanding will not, in and of\nitself, be considered a violation of this Agreement, provided that\nParticipant does not breach this Agreement. In addition, Company\nacknowledges that Participant, its affiliates (including its portfolio\ncompanies) and its and their representatives are or may become\ninvolved in businesses that are similar or identical to Company’s\nbusiness, and Company agrees that Participant, its affiliates\n(including its portfolio companies) and its and their\nrepresentatives shall not be restricted or prohibited from operating\ntheir respective businesses in the ordinary course, including those\nbusinesses that compete with Company’s business, or from\nmaking any investments in any such businesses, provided\nParticipant does not breach this Agreement.\nClearlake Capital Group, L.P.\nBy: /s/ Behdad Eghbali\nName: Behdad Eghbali\nTitle: Manager\nAddress: 233 Wilshire Boulevard, Suite 800\nCity, State, Zip: Santa Monica, California 90401\nDate: May 8, 2013	EX-99.(D)(3)(I) 10 d552900dex99d3i.htm EX-99.(D)(3)(I)\nExhibit (d)(3)(i)\nMutual Non-Disclosure Agreement\nIn order to protect certain Confidential Information (as defined below)\nConfidential Information (each, a "Recipient") from the other\nVeramark Technologies, Inc., for itself and its subsidiaries, affiliates\nParties disclosing Confidential Information (each, a "Discloser")\nand representatives (the "Company"), and Clearlake Capital Group,\nwill use the Confidential Information solely for the purpose of\nL.P., for itself and its subsidiaries, affiliates and representatives\nevaluating or undertaking a possible mutually-agreeable financial\n("Participant"), individually referred to as a "Party" and collectively\nor other transaction with or regarding the other Party.\nreferred to as the "Parties", agree that:\n6.\nTerm: Unless the Parties otherwise agree in writing, a Recipient's\n1.\nEffective Date: The effective date of this non-disclosure\nduty to protect Confidential Information expires two (2) years\nagreement ("Agreement") is May 8, 2013 ("Effective Date").\nfrom the date of disclosure. A Recipient, upon Discloser's written\n2.\nAll Information: The Agreement shall apply to all Confidential\nrequest, will promptly return or destroy, at Recipient's election\nInformation disclosed between the Parties.\nand with written certification to Company, all Confidentia\nInformation received from the Discloser, together with all copies,\n3.\nDefinitions: Confidential information ("Confidential\nor certify in writing that all such Confidential Information and\nInformation") generally shall mean all information that is\ncopies thereof have been destroyed.\nfurnished by or on behalf of a Party to or for the other Party,\nwhether in written, oral, electronic, Web site-based, or other form,\n7.\nDegree of Care: A Recipient will use the same degree of care,\nand any copies, reports, analyses, compilations, or studies which\nbut no less than a reasonable degree of care, as the Recipient uses\ncontain, otherwise reflect or are generated from such information;\nwith respect to its own similar information to protect the\nprovided, that the information is identified as such pursuant to\nConfidential Information. Recipient shall prevent (a) any use of\nSection 8 of this Agreement. Confidential Information includes,\nConfidential Information not authorized in this Agreement,\nbut is not limited to, customer and vendor-related data,\n(b) dissemination of Confidential Information to any employee of\nservices/support information, and information about products,\nRecipient without a need to know, (c) communication of\narchitectures, software, strategies, plans, techniques, drawings,\nConfidential Information to any third party or (d) publication of\ndesigns, specifications, technical or know-how data, research and\nConfidentia Information.\ndevelopment, ideas, trade secrets, inventions, and patent\n8.\nIdentification of Confidential Information: A Recipient will\ndisclosures that may be disclosed between the Parties.\nhave a duty to protect Confidential Information (a) if it is marked\n4.\nDisclosure: Without the prior written consent of the other Party,\nor accompanied by documents clearly and conspicuously\neach Party agrees not to issue or release any articles, advertising,\ndesignating them as "confidential" or the equivalent; or (b) if it is\npublicity or other communication relating to any Confidential\nidentified by the Discloser as confidential before, during or\nInformation of the other Party. Additionally, each Party agrees not\npromptly after the presentation or communication; or (c) if it\nto disclose that a meeting or discussions are taking or have taken\nshould reasonably be understood as confidential from the nature\nplace between the Parties, that Confidential Information has been\nof the information and/or circumstances under which it is\nmade available, or that a transaction involving the Parties is under\ndisclosed.\nconsideration or mentioning or implying the name of the other\n9.\nOther Transactions: Notwithstanding any provision of this\nParty or the status of discussions, except as may be required by\nagreement to the contrary, this agreement shall not limit, restrict\nlaw and then only after providing the other Party with an\nor impair the ability of either Party or its Representatives to\nopportunity to review and comment thereon. Participant agrees\nengage in transactions with respect to securities, instruments and\nthat any communication regarding a possible transaction will be\ninterests of the other party or any other person or entity, so long as\nsolely with designated officers, employees or representatives of\nsuch transactions do not violate applicable United States\nthe Company, including America's Growth Capital, and further\nsecurities laws, provided, however, from and after the date of this\nagrees not to discuss any possible transaction with any employee,\nagreement and until four (4) months after the date first written\nshareholder, commercial partner, or customer of the Company\nabove, you will not in any manner, directly or indirectly, without\nexcept as authorized by an officer of the Company or America's\nthe prior written consent of the Company's Board of Directors:\nGrowth Capital.\n(i) acquire, offer to acquire or agree to acquire, directly or\n5.\nTermination: This Agreement shall remain in effect until it is\nindirectly, by purchase or otherwise, more than 2% of any class of\nterminated by either Party with thirty (30) days prior written\nsecurities or direct or Indirect rights to acquire more than 2% of\nnotice. The terms and conditions of this Agreement shall survive\nany class of securities of the Company or any subsidiary, or of\nany such termination with respect to Confidential Information\nany successor to the Company, or more than 2% of any assets of\nthat is disclosed prior to the effective date of termination. The\nthe Company, subsidiary or division thereof or of any such\nParties receiving\nsuccessor; (ii) make, or in any way participate in, directly or\nindirectly, any "solicitation" of "proxies" or consents to vote (as\nsuch terms are used in the\nrules of the Securities and Exchange Commission), or seek to\ndirect product of such technical data, to any proscribed country\nadvise or influence any person with respect to the voting of any\nlisted in the U.S. Export Administration regulations, or foreign\nsecurities of the Company, (iii) make any public announcement\nnational thereof, unless properly authorized by the U.S.\nwith respect to, or submit a proposal for, or offer of (with or\nGovernment.\nwithout conditions) any extraordinary transaction involving the\n14. Intellectual Property: No Party acquires any intellectual\nCompany or any of its securities or assets, including, without\nproperty rights under this Agreement except the limited rights\nlimitation, any merger, recapitalization, restructuring, liquidation,\ndissolution, tender offer, exchange offer, reorganization or\nnecessary to carry out the purposes as set forth in this Agreement.\nbusiness combination; (iv) form, join or in any way participate in\nSubject to the obligations of this Agreement, no Party will be\na "group" (as defined In Section 13(d)(3) of the Securities\nprecluded from independently developing technology or pursuing\nbusiness opportunities similar to those covered by this\nExchange Act of 1934, as amended) with respect to any securities\nof the Company; (v) otherwise act, alone or in concert with\nAgreement. Each Party retains sole discretion to assign or\nothers, to seek control or influence the management, Board of\nreassign the job responsibilities of its employees.\nDirectors or policies of the Company; or (vi) enter into any\n15. Non-Solicitation: For one year from the Effective Date of this\ndiscussions, negotiations or arrangements or advise, assist or\nAgreement, Participant agrees not to, either directly or through\nencourage any other persons in connection with any of the\nothers, solicit or attempt to solicit any employee of the Company\nforegoing, except in consideration of a transaction contemplated\nto terminate his, her or its relationship with the Company;\nby this Agreement.\nprovided, that the foregoing will not prohibit Participant from\nhiring a Company employee who (i) applies for a position with\n10. Public Information: This Agreement imposes no obligation\nupon a Recipient with respect to Confidential Information which\nParticipant or its affiliates without any specific solicitation or as a\nresult of a general solicitation via advertisements for employment\n(a) the Recipient can demonstrate was already in its possession\nbefore receipt from the Discloser; (b) is or becomes publicly\nor searches not specifically directed towards employees of the\nCompany; (ii) is hired by a portfolio company of Participant\navailable through no fault of the Recipient; (c) is rightfully\nwithout the knowledge of, direction or encouragement of\nreceived by the Recipient from a third party not known to be\nParticipant; or (iii) terminated by the Company.\nbound by a duty of confidentiality; or (d) is independently\ndeveloped by the Recipient without a breach of this Agreement. If\n16. Damages: Each Party acknowledges that damages for breach of\na Recipient is required by a government body or court of law to\nthis Agreement may be irreparable; therefore, the injured Party\ndisclose Confidentia Information, the Recipient agrees to give\nmay be entitled to seek equitable relief, including injunction and\nthe Discloser reasonable advance notice, if legally permissible, so\npreliminary injunction, in addition to all other remedies available\nthat Discloser may contest the disclosure or seek a protective\nat law or in equity.\norder at its sole expense, but Recipient may otherwise disclose\n17. Enforcement: The obligations and duties imposed by this\nConfidential Information to the government body or court of law\nAgreement with respect to any Confidential Information may be\nwithout liability hereunder; provided it will limit the disclosure to\nenforced by the Discloser of such Confidential Information\nonly that information necessary to comply with such requirement\nagainst any and all Recipients of such Confidential Information.\nor law.\n18. Jurisdiction: This Agreement is made under, and will be\n11. Right to Disclose: EACH DISCLOSER WARRANTS THAT\nconstrued according to, the laws of the State of Delaware.\nIT HAS THE RIGHT TO DISCLOSE ITS CONFIDENTIAL\nINFORMATION. NO OTHER WARRANTIES ARE MADE\n19. Severability: If any provision of this Agreement is found to be\nAND NO RESPONSIBILITY OR LIABILITY IS OR WILL\ninvalid or unenforceable in whole or in part, the Parties agree that\nBE ACCEPTED BY EITHER PARTY IN RELATION TO\nsuch provision shall be reformed and construed to the maximum\nOR AS TO THE ACCURACY OR COMPLETENESS OF\nextent enforceable, and that the remaining provisions shall remain\nTHE CONFIDENTIAL INFORMATION. ALL\nvalid and enforceable to the maximum extent compatible with\nCONFIDENTIAL INFORMATION IS PROVIDED "AS IS".\nlaw.\n12. No Obligation: This Agreement imposes no obligation on a Party\n20. Consent: This Agreement does not create any agency or\nto exchange Confidential Information or to enter into any\npartnership relationship. This Agreement will not be assignable or\ntransaction.\ntransferable without the prior written consent of the other Party.\nAll additions or modifications to this Agreement must be made in\n13. Export Compliance: A Recipient will adhere to all applicable\nwriting and must be signed by all Parties. Each Party agrees that\nlaws and regulations of the U.S. Export Administration and will\nfacsimile signatures will have the same legal effect as originals\nnot export or re-export any technical data or products received\nsignatures and may be used as evidence of execution.\nfrom a Discloser, or the\n21. Headings: The headings in this Agreement are included for\nwhich Participant, its affiliates and its and their representatives\nconvenience only and shall neither affect the construction or\nmay now, or in the future, compete as a principal investor or\ninterpretation of any provision of this Agreement nor affect any of\noperator and that such further understanding will not, in and of\nthe rights or obligations of the parties to this Agreement.\nitself, be considered a violation of this Agreement, provided that\n22. No Obligation. Nothing in this Agreement or otherwise obligates\nParticipant does not breach this Agreement. In addition, Company\nthe Company to share any information to the Participant or to\nacknowledges that Participant, its affiliates (including its portfolio\nenter into any discussions or negotiations with respect to any\ncompanies) and its and their representatives are or may become\ntransaction(s) The Company shall not be bound to any\ninvolved in businesses that are similar or identical to Company's\ntransaction with the Participant unless and until a definitive\nbusiness, and Company agrees that Participant, its affiliates\nagreement is executed and delivered by the parties. For avoidance\n(including its portfolio companies) and its and their\nof doubt, Participant also shall be under no obligation to affect an\nrepresentatives shall not be restricted or prohibited from operating\ninvestment or enter into a transaction with the Company. The\ntheir respective businesses in the ordinary course, including those\nCompany acknowledges that, as a private equity investor,\nbusinesses that compete with Company's business, or from\nParticipant considers, makes, and has made investments in a\nmaking any investments in any such businesses, provided\nvariety of markets and that Participant's participation in the\nParticipant does not breach this Agreement.\nevaluation of the Company for an investment may enhance the\nunderstanding of Participant, its affiliates and its and their\nrepresentatives of the markets in\nVeramark Technologies, Inc.\nClearlake Capital Group, L.P.\nBy:\n/s/ Anthony C. Mazzullo\nBy:\n/s/ Behdad Eghbali\nName:\nAnthony C. Mazzullo\nName:\nBehdad Eghbali\nTitle:\nPresident, Chief Executive Officer\nTitle:\nManager\nAddress:\n1565 Jefferson Road Suite 120\nAddress:\n233 Wilshire Boulevard, Suite 800\nCity, State, Zip:\nRochester, NY 14623\nCity, State, Zip: Santa Monica, California 90401\nDate:\nMay 8, 2013\nDate:\nMay 8, 2013	EX-99.(D)(3)(I) 10 d552900dex99d3i.htm EX-99.(D)(3)(I)\nExhibit (d)(3)(i)\nMutual Non-Disclosure Agreement\nIn order to protect certain Confidential Information (as defined below)\nVeramark Technologies, Inc., for itself and its subsidiaries, affiliates\nand representatives (the “Company”), and Clearlake Capital Group,\nL.P., for itself and its subsidiaries, affiliates and representatives\n(“Participant”), individually referred to as a “Party” and collectively\nreferred to as the “Parties”, agree that:\n1. Effective Date: The effective date of this non-disclosure\nagreement (“Agreement”) is May 8, 2013 (“Effective Date”).\n2. All Information: The Agreement shall apply to all Confidential\nInformation disclosed between the Parties.\n3. Definitions: Confidential information (“Confidential\nInformation”) generally shall mean all information that is\nfurnished by or on behalf of a Party to or for the other Party,\nwhether in written, oral, electronic, Web site-based, or other form,\nand any copies, reports, analyses, compilations, or studies which\ncontain, otherwise reflect or are generated from such information;\nprovided, that the information is identified as such pursuant to\nSection 8 of this Agreement. Confidential Information includes,\nbut is not limited to, customer and vendor-related data,\nservices/support information, and information about products,\narchitectures, software, strategies, plans, techniques, drawings,\ndesigns, specifications, technical or know-how data, research and\ndevelopment, ideas, trade secrets, inventions, and patent\ndisclosures that may be disclosed between the Parties.\n4. Disclosure: Without the prior written consent of the other Party,\neach Party agrees not to issue or release any articles, advertising,\npublicity or other communication relating to any Confidential\nInformation of the other Party. Additionally, each Party agrees not\nto disclose that a meeting or discussions are taking or have taken\nplace between the Parties, that Confidential Information has been\nmade available, or that a transaction involving the Parties is under\nconsideration or mentioning or implying the name of the other\nParty or the status of discussions, except as may be required by\nlaw and then only after providing the other Party with an\nopportunity to review and comment thereon. Participant agrees\nthat any communication regarding a possible transaction will be\nsolely with designated officers, employees or representatives of\nthe Company, including America’s Growth Capital, and further\nagrees not to discuss any possible transaction with any employee,\nshareholder, commercial partner, or customer of the Company\nexcept as authorized by an officer of the Company or America’s\nGrowth Capital.\n5. Termination: This Agreement shall remain in effect until it is\nterminated by either Party with thirty (30) days prior written\nnotice. The terms and conditions of this Agreement shall survive\nany such termination with respect to Confidential Information\nthat is disclosed prior to the effective date of termination. The\nParties receiving\nConfidential Information (each, a “Recipient”) from the other\nParties disclosing Confidential Information (each, a “Discloser”)\nwill use the Confidential Information solely for the purpose of\nevaluating or undertaking a possible mutually-agreeable financial\nor other transaction with or regarding the other Party.\n6. Term: Unless the Parties otherwise agree in writing, a Recipient’s\nduty to protect Confidential Information expires two (2) years\nfrom the date of disclosure. A Recipient, upon Discloser’s written\nrequest, will promptly return or destroy, at Recipient’s election\nand with written certification to Company, all Confidential\nInformation received from the Discloser, together with all copies,\nor certify in writing that all such Confidential Information and\ncopies thereof have been destroyed.\n7. Degree of Care: A Recipient will use the same degree of care,\nbut no less than a reasonable degree of care, as the Recipient uses\nwith respect to its own similar information to protect the\nConfidential Information. Recipient shall prevent (a) any use of\nConfidential Information not authorized in this Agreement,\n(b) dissemination of Confidential Information to any employee of\nRecipient without a need to know, (c) communication of\nConfidential Information to any third party or (d) publication of\nConfidential Information.\n8. Identification of Confidential Information: A Recipient will\nhave a duty to protect Confidential Information (a) if it is marked\nor accompanied by documents clearly and conspicuously\ndesignating them as “confidential” or the equivalent; or (b) if it is\nidentified by the Discloser as confidential before, during or\npromptly after the presentation or communication; or (c) if it\nshould reasonably be understood as confidential from the nature\nof the information and/or circumstances under which it is\ndisclosed.\n9. Other Transactions: Notwithstanding any provision of this\nagreement to the contrary, this agreement shall not limit, restrict\nor impair the ability of either Party or its Representatives to\nengage in transactions with respect to securities, instruments and\ninterests of the other party or any other person or entity, so long as\nsuch transactions do not violate applicable United States\nsecurities laws, provided, however, from and after the date of this\nagreement and until four (4) months after the date first written\nabove, you will not in any manner, directly or indirectly, without\nthe prior written consent of the Company’s Board of Directors:\n(i) acquire, offer to acquire or agree to acquire, directly or\nindirectly, by purchase or otherwise, more than 2% of any class of\nsecurities or direct or Indirect rights to acquire more than 2% of\nany class of securities of the Company or any subsidiary, or of\nany successor to the Company, or more than 2% of any assets of\nthe Company, subsidiary or division thereof or of any such\nsuccessor; (ii) make, or in any way participate in, directly or\nindirectly, any “solicitation” of “proxies” or consents to vote (as\nsuch terms are used in the\nrules of the Securities and Exchange Commission), or seek to\nadvise or influence any person with respect to the voting of any\nsecurities of the Company, (iii) make any public announcement\nwith respect to, or submit a proposal for, or offer of (with or\nwithout conditions) any extraordinary transaction involving the\nCompany or any of its securities or assets, including, without\nlimitation, any merger, recapitalization, restructuring, liquidation,\ndissolution, tender offer, exchange offer, reorganization or\nbusiness combination; (iv) form, join or in any way participate in\na “group” (as defined In Section 13(d)(3) of the Securities\nExchange Act of 1934, as amended) with respect to any securities\nof the Company; (v) otherwise act, alone or in concert with\nothers, to seek control or influence the management, Board of\nDirectors or policies of the Company; or (vi) enter into any\ndiscussions, negotiations or arrangements or advise, assist or\nencourage any other persons in connection with any of the\nforegoing, except in consideration of a transaction contemplated\nby this Agreement.\n10. Public Information: This Agreement imposes no obligation\nupon a Recipient with respect to Confidential Information which\n(a) the Recipient can demonstrate was already in its possession\nbefore receipt from the Discloser; (b) is or becomes publicly\navailable through no fault of the Recipient; (c) is rightfully\nreceived by the Recipient from a third party not known to be\nbound by a duty of confidentiality; or (d) is independently\ndeveloped by the Recipient without a breach of this Agreement. If\na Recipient is required by a government body or court of law to\ndisclose Confidential Information, the Recipient agrees to give\nthe Discloser reasonable advance notice, if legally permissible, so\nthat Discloser may contest the disclosure or seek a protective\norder at its sole expense, but Recipient may otherwise disclose\nConfidential Information to the government body or court of law\nwithout liability hereunder; provided it will limit the disclosure to\nonly that information necessary to comply with such requirement\nor law.\n11. Right to Disclose: EACH DISCLOSER WARRANTS THAT\nIT HAS THE RIGHT TO DISCLOSE ITS CONFIDENTIAL\nINFORMATION. NO OTHER WARRANTIES ARE MADE\nAND NO RESPONSIBILITY OR LIABILITY IS OR WILL\nBE ACCEPTED BY EITHER PARTY IN RELATION TO\nOR AS TO THE ACCURACY OR COMPLETENESS OF\nTHE CONFIDENTIAL INFORMATION. ALL\nCONFIDENTIAL INFORMATION IS PROVIDED “AS IS”.\n12. No Obligation: This Agreement imposes no obligation on a Party\nto exchange Confidential Information or to enter into any\ntransaction.\n13. Export Compliance: A Recipient will adhere to all applicable\nlaws and regulations of the U.S. Export Administration and will\nnot export or re-export any technical data or products received\nfrom a Discloser, or the\ndirect product of such technical data, to any proscribed country\nlisted in the U.S . Export Administration regulations, or foreign\nnational thereof, unless properly authorized by the U.S.\nGovernment.\n14. Intellectual Property: No Party acquires any intellectual\nproperty rights under this Agreement except the limited rights\nnecessary to carry out the purposes as set forth in this Agreement.\nSubject to the obligations of this Agreement, no Party will be\nprecluded from independently developing technology or pursuing\nbusiness opportunities similar to those covered by this\nAgreement. Each Party retains sole discretion to assign or\nreassign the job responsibilities of its employees.\n15. Non-Solicitation: For one year from the Effective Date of this\nAgreement, Participant agrees not to, either directly or through\nothers, solicit or attempt to solicit any employee of the Company\nto terminate his, her or its relationship with the Company;\nprovided, that the foregoing will not prohibit Participant from\nhiring a Company employee who (i) applies for a position with\nParticipant or its affiliates without any specific solicitation or as a\nresult of a general solicitation via advertisements for employment\nor searches not specifically directed towards employees of the\nCompany; (ii) is hired by a portfolio company of Participant\nwithout the knowledge of, direction or encouragement of\nParticipant; or (iii) terminated by the Company.\n16. Damages: Each Party acknowledges that damages for breach of\nthis Agreement may be irreparable; therefore, the injured Party\nmay be entitled to seek equitable relief, including injunction and\npreliminary injunction, in addition to all other remedies available\nat law or in equity.\n17. Enforcement: The obligations and duties imposed by this\nAgreement with respect to any Confidential Information may be\nenforced by the Discloser of such Confidential Information\nagainst any and all Recipients of such Confidential Information.\n18. Jurisdiction: This Agreement is made under, and will be\nconstrued according to, the laws of the State of Delaware.\n19. Severability: If any provision of this Agreement is found to be\ninvalid or unenforceable in whole or in part, the Parties agree that\nsuch provision shall be reformed and construed to the maximum\nextent enforceable, and that the remaining provisions shall remain\nvalid and enforceable to the maximum extent compatible with\nlaw.\n20. Consent: This Agreement does not create any agency or\npartnership relationship. This Agreement will not be assignable or\ntransferable without the prior written consent of the other Party.\nAll additions or modifications to this Agreement must be made in\nwriting and must be signed by all Parties. Each Party agrees that\nfacsimile signatures will have the same legal effect as originals\nsignatures and may be used as evidence of execution.\nVeramark Technologies, Inc.\nClearlake Capital Group, L.P.\nBy:\n/s/ Anthony C. Mazzullo\nBy:\n/s/ Behdad Eghbali\nName:\nAnthony C. Mazzullo\nName:\nBehdad Eghbali\nTitle:\nPresident, Chief Executive Officer\nTitle:\nManager\nAddress:\n1565 Jefferson Road Suite 120\nAddress:\n233 Wilshire Boulevard, Suite 800\nCity, State, Zip: Rochester, NY 14623\nCity, State, Zip: Santa Monica, California 90401\nDate:\nMay 8, 2013\nDate:\nMay 8, 2013\n21. Headings: The headings in this Agreement are included for\nconvenience only and shall neither affect the construction or\ninterpretation of any provision of this Agreement nor affect any of\nthe rights or obligations of the parties to this Agreement.\n22. No Obligation. Nothing in this Agreement or otherwise obligates\nthe Company to share any information to the Participant or to\nenter into any discussions or negotiations with respect to any\ntransaction(s). The Company shall not be bound to any\ntransaction with the Participant unless and until a definitive\nagreement is executed and delivered by the parties. For avoidance\nof doubt, Participant also shall be under no obligation to affect an\ninvestment or enter into a transaction with the Company. The\nCompany acknowledges that, as a private equity investor,\nParticipant considers, makes, and has made investments in a\nvariety of markets and that Participant’s participation in the\nevaluation of the Company for an investment may enhance the\nunderstanding of Participant, its affiliates and its and their\nrepresentatives of the markets in\nwhich Participant, its affiliates and its and their representatives\nmay now, or in the future, compete as a principal investor or\noperator and that such further understanding will not, in and of\nitself, be considered a violation of this Agreement, provided that\nParticipant does not breach this Agreement. In addition, Company\nacknowledges that Participant, its affiliates (including its portfolio\ncompanies) and its and their representatives are or may become\ninvolved in businesses that are similar or identical to Company’s\nbusiness, and Company agrees that Participant, its affiliates\n(including its portfolio companies) and its and their\nrepresentatives shall not be restricted or prohibited from operating\ntheir respective businesses in the ordinary course, including those\nbusinesses that compete with Company’s business, or from\nmaking any investments in any such businesses, provided\nParticipant does not breach this Agreement.
05a8b77e5c3662f95fcf9c2c643b74db.pdf	effective_date jurisdiction party term	EX-10.12 4 zbh-ex1012_349.htm EX-10.12\nExhibit 10.12\nCORPORATE EXECUTIVE CONFIDENTIALITY, NON-COMPETITION\nAND NON-SOLICITATION AGREEMENT\nThis Corporate Executive Confidentiality, Non-Competition and Non-Solicitation Agreement (“Agreement”) is made by\nand between Zimmer, Inc., a corporation having its principal headquarters in Warsaw, Indiana, and\n______________________________\n(“Employee”).\nRecitals\nA.\nFor purposes of this Agreement, the term "Company" means Zimmer, Inc., Zimmer US, Inc. and/or\nany or each of their affiliates, parents, or direct or indirect subsidiaries (including but not limited to Biomet, Inc. and its\naffiliates, parents or direct or indirect subsidiaries), as well as any successor-in-interest to Zimmer, Inc., Zimmer US, Inc.\nand/or to any of their direct or indirect subsidiaries, affiliates, or parents.\nB.\nEmployee is employed or is being employed by Company in an executive and/or high-level\nmanagerial capacity in which Employee has or will have extensive access to trade secrets and confidential information of\nCompany, and/or is being offered certain equity incentives.\nC.\nCompany has offered Employee employment and/or other valuable consideration, which may include\nwithout limitation such consideration as a job promotion, an increase in compensation, and/or an equity award,\ncontingent upon Employee's entering into this Agreement.\nAgreement\nNOW, THEREFORE, in consideration of the foregoing recitals, the promises contained herein and other good\nand valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Company and Employee\nagree to be legally bound as follows:\n1.\nAcknowledgements. Employee acknowledges that Company is engaged in the highly competitive\nbusiness of the development, manufacture, distribution, and sale of orthopedic- and musculoskeletal-related medical and\nsurgical devices, products, and services, including but not limited to hip, knee, trauma, extremities, craniomaxillofacial,\nthoracic, dental rehabilitation, spine, microfixation, bone healing, bone cement, surgical, sports medicine, orthopedic\ndiagnostic (including unique diagnostic products developed for or by Company) and/or biologics devices, products,\nprocesses and services, and that Employee serves or will serve in an executive and/or high-level managerial capacity for\nCompany and in that capacity Employee has and/or will have access to and has and/or will gain knowledge of substantial\ntrade secrets and confidential information of Company.\n2.\nNon-Disclosure and Ownership of Confidential Information. Employee acknowledges that\nConfidential Information is a valuable, special, and unique asset of Company, and solely the property of Company, and\nagrees to the following; provided, however, that this policy does not, in any manner, prevent employees from filing a\ncomplaint with, providing information to, or participating in an investigation conducted by, the Securities and Exchange\nCommission, the United States Equal Opportunity Commission or any other governmental or law enforcement agency.\n(a)\nConfidential Information Defined. The term “Confidential Information” includes, but is not\nlimited to, any and all of Company’s trade secrets, confidential and proprietary information and all other information and\ndata of Company that is not generally known to the public or other third parties who could derive economic value from\nits use or disclosure. Confidential Information includes, without limitation, technical information such as product\nspecifications, compounds, formulas, improvements, discoveries, developments, designs, inventions, techniques, new\nproducts and surgical training methods, and research and development information; confidential business methods and\nprocesses; business plans and strategies; marketing plans and strategies; non-public financial information including\nbudgets, sales data, sales forecasts, sales quotas, and information regarding profits or losses; office optimization and\nlogistics information; information pertaining to current and prospective customers; information pertaining to distributors\nand sales structures; pricing information; discount schedules; costing information; personnel information; compensation\nstructure, schedules and plans; and information about current and prospective products or services, whether or not\nreduced to writing or other tangible medium of expression, including work product created by Employee in rendering\nservices for Company.\n(b)\nNon-Disclosure of Confidential Information. During Employee's employment with Company\nand thereafter, Employee will not disclose, transfer, or use (or seek to induce others to disclose, transfer, or use) any\nConfidential Information for any purpose other than( i) disclosure to authorized employees and agents of Company who\nare bound to maintain the confidentiality of the Confidential Information; (ii) for authorized purposes during the course\nof Employee’s employment in furtherance of Company’s business; and/or (iii) as specifically allowed or required under\napplicable law. Employee's non-disclosure obligations shall continue as long as the Confidential Information remains\nconfidential and shall not apply to information that becomes generally known to the public through no fault or action of\nEmployee. The Federal Defend Trade Secrets Act provides that individuals may not be held criminally or civilly liable\nunder any federal or state trade secret law for the disclosure of a trade secret that is made (a) in confidence to a federal,\nstate or local government official, either directly or indirectly, or to an attorney if such disclosure is made solely for the\npurpose of reporting or investigating a suspected violation of law or for pursuing an anti-retaliation lawsuit; or (b) in a\ncomplaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal and the individual\ndoes not disclose the trade secret except pursuant to a court order.\n(c)\nProtection of Confidential Information. Employee will notify Company in writing of any\ncircumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. Employee\nwill use Employee's best efforts to protect Confidential Information from unauthorized disclosure, transfer, or\nuse. Employee will implement and abide by all procedures adopted by Company to prevent unauthorized disclosure,\ntransfer, or use of Confidential Information. Notwithstanding the above requirements, nothing in this Agreement shall\nrestrict Employee's right to make disclosures specifically allowed or required under applicable law.\n-2-\n3.\nOwnership of Intellectual Property.\n(a)\nInvention Defined. The term “Invention” includes, but is not limited to ideas, programs,\nprocesses, systems, intellectual property, works of authorship, copyrightable materials, discoveries, and/or improvements\nwhich Employee discovers, invents, originates, develops, makes, authors, or conceives alone or in conjunction with\nothers during Employee’s employment with Company and/or within six (6) months after Employee’s employment ends\nwhich relate to Company’s present or future business. An Invention is covered by this Agreement regardless of whether\n(i) Employee conceived of the Invention in the scope of Employee’s employment; (ii) the Invention is patentable; or (iii)\nCompany takes any action to commercialize or develop the Invention.\n(b)\nOwnership of Inventions. Inventions are solely the property of Company. Employee agrees that\nby operation of law and/or the effect of this Agreement Employee does not have any rights, title, or interest in any\nInventions. Notwithstanding, Employee may be recognized as the inventor of an Invention without retaining any other\nrights associated therewith.\n(c)\nDisclosure and Assignment of Inventions. Employee hereby assigns to Company all right, title\nand interest Employee may have in any Inventions that are discovered, invented, originated, developed, made, authored,\nor conceived by Employee (whether alone or with others) during Employee’s employment with Company and/or within\nsix (6) months after Employee’s employment ends which relate to Company’s present or future business. Employee\nagrees to: (i) promptly disclose all such Inventions in writing to Company; (ii) keep complete and accurate records of all\nsuch Inventions, which records shall be Company property and shall be retained on Company premises; and (iii) execute\nsuch documents and do such other acts as may be necessary in the opinion of Company to establish and preserve\nCompany’s property rights in all such Inventions. This section shall not apply to any Invention for which no equipment,\nsupplies, facility or trade secret information of Company was used and which was developed entirely on Employee’s\nown time, and (1) which does not relate (a) directly to the business of Company, or (b) to Company’s actual or\ndemonstrably anticipated research or development, and (2) which does not result from any work performed by Employee\nfor Company.\n(d)\nWorks of Authorship. All written, graphic or recorded material and all other works of\nauthorship fixed in a tangible medium of expression made or created by Employee, solely or jointly with others, during\nEmployee’s employment with Company and relating to Company’s business, actual or contemplated, shall be the\nexclusive property of Company (collectively “Works”). Company will have the exclusive right to copyright such\nWorks. Employee agrees that if any Work created while employed by Company, whether or not created at the direction\nof Company, is copyrightable, such Work will be a “work made for hire,” as that term is defined in the copyright laws of\nthe United States. If, for any reason, any copyrightable Works created by Employee are excluded from that definition,\nEmployee hereby assigns and conveys to Company all right, title and interest (including any copyright and renewals) in\nsuch Works.\n(e)\nAttribution and Use of Works and Inventions; Waiver of Assertion of “Moral” Rights in\nInventions and Works. Employee agrees that Company and its licensees are not\n-3-\nrequired to designate Employee as author, inventor or developer of any Works or Inventions when distributed or\notherwise. Employee hereby waives, and agrees not to assert, any “moral” rights in any Inventions and\nWorks. Employee agrees that Company and its licensees shall have sole discretion with regard to how and for what\npurposes any Inventions or Works are used or distributed.\n(f)\nEmployee Cooperation in Establishment of Company Proprietary Rights. Employee will sign\ndocuments of assignment, declarations and other documents and take all other actions reasonably required by Company,\nat Company’s expense, to perfect and enforce any of its proprietary rights. In the event Company is unable, for any\nreason whatsoever, to secure Employee’s signature to any lawful or necessary documents required to apply for,\nprosecute, perfect, or assign any United States or foreign application for Letters Patent, trademark, copyright registration,\nor other filing to protect any Invention or Work, Employee hereby irrevocably designates and appoints Company and its\nduly authorized officers and agents as Employee’s agent and attorney in fact, to act for and on Employee’s behalf, to\nexecute and file any such application, registration or other filing, and to do all other lawfully permitted acts to further the\nprosecution, issuance or assignment of Letters Patent or other protections on such Inventions, or registrations for\ntrademark or copyright or other protections on such Works, with the same force and effect as if executed by Employee.\n4.\nReturn of Confidential Information and Company Property. Immediately upon termination of\nEmployee’s employment with Company, Employee shall return to Company all of Company’s property relating to\nCompany’s business, including without limitation all of Company’s property which is in the possession, custody, or\ncontrol of Employee such as Confidential Information, documents, hard copy files, copies of documents and electronic\ninformation/files, and equipment (e.g., computers and mobile phones).\n5.\nObligations to Other Entities or Persons. Employee warrants that Employee is not bound by the\nterms of a confidentiality agreement or any other legal obligation which would either preclude or limit Employee from\ndisclosing or using any of Employee’s ideas, inventions, discoveries or other information or otherwise fulfilling\nEmployee’s obligations to Company. While employed by Company, Employee shall not disclose or use any confidential\ninformation belonging to another entity or other person.\n6.\nConflict of Interest and Duty of Loyalty. During Employee’s employment with Company,\nEmployee shall not engage, directly or indirectly, in any activity, employment or business venture, whether or not for\nremuneration, that (i) is competitive with Company’s business; (ii) deprives or potentially could deprive Company of any\nbusiness opportunity; (iii) conflicts or potentially could conflict with Company’s business interests; or (iv) is otherwise\ndetrimental to Company, including but not limited to preparations to engage in any of the foregoing activities.\n-4-\n7.\nRestrictive Covenants. Employee agrees to, and covenants to comply with, each of the following\nseparate and divisible restrictions:\n(a)\nDefinitions.\n(1)\n“Competing Product” is defined as any implant, device, or medical product(s), service(s),\ninstrument(s) or supplies that is or are the same as, related to, or similar to any product, process or service that Company\nis researching, developing, manufacturing, distributing, selling and/or providing at the time of Employee’s separation\nfrom employment with Company (including, but not limited to, any product or service Company’s Hip, Knee, Trauma,\nExtremities, Craniomaxillofacial, Thoracic, Biologics, Surgical, Sports Medicine, Microfixation, Bone Healing, Bone\nCement, Orthopedic Diagnostic, Spine and/or Dental division is researching, developing, manufacturing, distributing,\nselling and/or providing at the time of Employee's separation from employment with Company).\n(2)\n“Competing Organization” is defined as any organization that researches, develops,\nmanufactures, markets, distributes and/or sells one or more Competing Products. A Competing Organization is\ndiversified if it operates multiple, independently operating business divisions, units, lines or segments some of which do\nnot research, develop, manufacture, market, distribute and/or sell any Competing Products.\n(3)\n“Prohibited Capacity” is defined as (a) any same or similar capacity to that held by\nEmployee at any time during Employee's last two (2) years of employment with Company; (b) any executive or\nmanagerial capacity; or (c) any capacity in which Employee’s knowledge of Confidential Information and/or Inventions\nwould render Employee’s assistance to a Competing Organization a competitive advantage.\n(4)\n“Restricted Geographic Area” is defined as all countries, territories, parishes, municipalities\nand states in which Company is doing business or is selling its products at the time of termination of Employee’s\nemployment with Company, including but not limited to every parish and municipality in the state of\nLouisiana. Employee acknowledges that this geographic scope is reasonable given Employee's position with Company,\nthe international scope of Company's business; and the fact that Employee could compete with Company from anywhere\nCompany does business.\n(5)\n“Restricted Period” is defined as the date Employee executes this Agreement, continuing\nthrough the eighteen (18) months after the Employee’s last day of employment with Company unless otherwise extended\nby Employee’s breach of this Agreement. The running time on the Restricted Period shall be suspended during any\nperiod in which Employee is in violation of any of the restrictive covenants set forth herein, and all restrictions shall\nautomatically be extended by the period Employee was in violation of any such restrictions.\n(6)\n“Customer” is defined as any person or entity with respect to whom, as of the date of\nEmployee’s separation from Company employment or at any time during the two years prior to such separation,\nCompany sold or provided any products and/or services.\n(7)\n“Active Prospect” is defined as any person or entity that Company individually and\nspecifically marketed to and/or held discussions with regarding the distribution\n-5-\nand/or sale of any of Company's products, processes or services at any time during the last six (6) months of Employee’s\nemployment with Company.\n(8)\n“Severance Benefit Period” is the period of time represented by the total amount of any\nseverance benefit offered to Employee (whether or not actually paid). By way of illustration, if Employee were offered a\nlump-sum severance benefit equivalent to ten (10) weeks of Employee’s final base pay upon termination of his or her\nemployment with the Company, Employee’s Severance Benefit Period would be 10 weeks, whether or not Employee\nactually fulfilled all requirements of receiving, and did receive, any portion of the severance benefit.\n(b)\nRestrictive Covenants. During the Restricted Period, Employee agrees to be bound by each of\nthe following independent and divisible restrictions:\n(1)\nCovenant Not to Compete.\n(A)\nEmployee will not, within the Restricted Geographic Area, be employed by, work\nfor, consult with, provide services to, or lend assistance to any Competing Organization in a Prohibited Capacity.\n(B)\nEmployee may be employed by, work for, consult with, provide services to, or\nlend assistance to a Competing Organization provided that: (i) the Competing Organization’s business is diversified;\n(ii) the part of the Competing Organization's business with which Employee will be affiliated would not, evaluated on a\nstand-alone basis, be a Competing Organization; (iii) Employee’s affiliation with the Competing Organization does not\ninvolve any Competing Products; (iv) Employee provides Company a written description of Employee’s anticipated\nactivities on behalf of the Competing Organization which includes, without limitation, an assurance satisfactory to\nCompany that Employee’s affiliation with the Competing Organization does not constitute a Prohibited Capacity; and (v)\nEmployee's affiliation with the Competing Organization does not constitute a competitive disadvantage to Company.\n(2)\nCovenant Not to Solicit Customers or Active Prospects. Employee will not, directly or\nindirectly, (i) provide, sell, or market; (ii) assist in the provision, selling or marketing of; or (iii) attempt to provide, sell\nor market any Competing Products to any of Company’s Customers or Active Prospects located in the Restricted\nGeographic Area.\n(3)\nCovenant Not to Interfere With Business Relationships. Employee will not, within the\nRestricted Geographic Area, urge, induce or seek to induce any of Company’s independent contractors, subcontractors,\ndistributors, brokers, consultants, sales representatives, customers, vendors, suppliers or any other person or entity with\nwhom Company has a business relationship at the time of Employee's separation from Company employment to\nterminate its or their relationship with, or representation of, Company or to cancel, withdraw, reduce, limit or in any\nmanner modify any such person’s or entity’s business with, or representation of, Company\n(4)\nCovenant Not to Solicit Company Employees. Employee will not employ, solicit for\nemployment, or advise any other person or entity to employ or solicit for employment, any individual employed by\nCompany at the time of Employee's separation from Company\n-6-\nemployment, or otherwise directly or indirectly induce or entice any such employee to leave his/her employment with\nCompany.\n(5)\nCovenant Not to Disparage Company. Employee will not make or publish any disparaging\nor derogatory statements about Company; about Company's products, processes, or services; or about Company's past,\npresent and future officers, directors, employees, attorneys and agents. Disparaging or derogatory statements include,\nbut are not limited to, negative statements regarding Company’s business or other practices; provided, however, nothing\nherein shall prohibit Employee from providing any information as may be compelled by law or legal process.\n8.\nReasonableness of Terms. Employee acknowledges and agrees that the restrictive covenants\ncontained in this Agreement restrict Employee from engaging in activities for a competitive purpose and are reasonably\nnecessary to protect Company’s legitimate interests in Confidential Information, Inventions, and goodwill. Additionally,\nEmployee acknowledges and agrees that the restrictive covenants are reasonable in all respects, including, but not\nlimited to, temporal duration, scope of prohibited activities and geographic area. Employee further acknowledges and\nagrees that the restrictive covenants set forth in this Agreement will not pose unreasonable hardship on Employee and\nthat Employee will have a reasonable opportunity to earn an equivalent livelihood without violating any provision of this\nAgreement.\n9.\nNon-Competition Period Payments.\n(a)\nEligibility and Amount. In the event of Employee’s involuntary separation from employment\nwith the Company for a reason that renders Employee eligible for benefits under the terms of the Company’s Severance\nPlan, then to the extent Employee is denied, solely because of the restrictive covenant provisions of Section 7 of this\nAgreement, a specific full-time or part-time employment, consulting, or other position that would otherwise be offered to\nEmployee by a Competing Organization, and provided Employee satisfies all conditions stated herein, then upon\nexpiration of Employee’s Severance Benefit Period, Company will make monthly payments to Employee for each month\nEmployee remains unemployed through the end of the Restricted Period. These monthly payments shall equal the lesser\nof Employee’s monthly base pay at the time of Employee's separation from Company employment (exclusive of bonus\nand other extra compensation and any other employee benefits) or the monthly compensation that would have been\noffered to Employee by the Competing Organization. This Section 9 will not apply if Employee leaves employment\nwith the Company voluntarily or if Company terminates Employee’s employment for a reason or reasons that render\nEmployee ineligible for benefits under terms of the Company’s Severance Plan.\n(b)\nVerification of Eligibility for Non-Competition Period Payments. To qualify for payments under\nthis Section 9, Employee must provide Company detailed written documentation supporting eligibility for payment,\nincluding, at a minimum, (i) the name and location of the Competing Organization that would have employed Employee\nbut for the provisions of Section 7 of this Agreement, (ii) the title, nature, and detailed job responsibilities of the\nemployment position with the Competing Organization that Employee was denied, (iii) the date Employee was denied\nthe employment position, and (iv) the name and contact information of a managerial employee at the Competing\nOrganization who has sufficient authority to confirm that Employee\n-7-\nwas denied this specific employment position with the Competing Organization solely because Employee is subject to\nthe provisions of Section 7 of this Agreement (the “eligibility documentation”). Upon receipt of the eligibility\ndocumentation, Company will determine eligibility for payment and, if eligibility is established, payments will\ncommence as of the date of Company’s receipt of the eligibility documentation or the date Employee’s Severance\nBenefit Period ends, whichever is later.\n(c)\nObligation to Pursue Replacement Employment and Verification of Continued Eligibility for\nNon-Competition Period Payments. Employee is obligated to diligently seek and pursue replacement employment that\ndoes not violate Section 7 of this Agreement ("replacement employment") during any period in which Employee seeks\nand/or accepts payment from Company under this Section 9. After eligibility for non-competition period payments is\nestablished, Employee will, on or before the 15th day of each month of eligibility for continued payments, submit to\nCompany a written statement (i) identifying by name and address all prospective employers with whom Employee has\napplied or inquired about employment; (ii) identifying positions sought with each listed employer and specific actions\ntaken in seeking each position; (iii) describing all other efforts made to obtain replacement employment; and\n(iv) describing any offers of employment received, including the name of the employer; the nature, title, and\ncompensation terms of the position offered; the actual or anticipated start date if the offer has been accepted; and the\nreason(s) for declining if the offer was declined.\n(d)\nEffect of Replacement Employment on Non-Competition Period Payments. If Employee is\ndenied a specific employment, consulting or other such position with a Competing Organization solely because of the\nrestrictive covenant provisions of Section 7 of this Agreement but obtains other work for compensation, and the monthly\ncompensation (including base pay, commissions, incentive compensation, bonuses, fees and other compensation) for the\nreplacement work is less than Employee’s monthly base pay at the time of Employee’s separation from employment with\nCompany, Company agrees to pay Employee the difference for each such month through the end of the Restricted\nPeriod, again upon expiration of any severance benefits which Employee was offered and provided Employee satisfies\nall conditions stated herein, with monthly payments not to exceed the amount to which Employee is entitled under\nsubsection (a) of this Section 9. Employee shall submit to Company payroll records and/or any other records reasonably\nrequested by Company showing all compensation received by Employee from the replacement work as a condition of\nCompany's payment of Non-Competition Period Payments covering any period of time when Employee performs work\nfor compensation.\n(e)\nCompany's Right To Provide Release of Obligations in Lieu of Non-Competition Period\nPayments. Notwithstanding any of the foregoing provisions of this Section 9, Company reserves the right to release\nEmployee from Employee’s obligations under Section 7 of this Agreement at any time during the Restricted Period, in\nfull or in sufficient part to allow Employee to accept an opportunity that would otherwise be prohibited under this\nAgreement, at which time Company’s payment obligations under this Section 9 shall cease immediately and Employee\nshall not be entitled to any further such payments or compensation.\n10.\nSeverability, Modification of Restrictions. The covenants and restrictions in this Agreement are\nseparate and divisible, and to the extent any clause, portion or section of this Agreement is determined to be\nunenforceable or invalid for any reason, Company and Employee\n-8-\nacknowledge and agree that such unenforceability or invalidity shall not affect the enforceability or validity of the\nremainder of the Agreement. If any particular covenant, provision or clause of this Agreement is determined to be\nunreasonable or unenforceable for any reason, including, without limitation, temporal duration, scope of prohibited\nactivity, and/or scope of geographic area, Company and Employee acknowledge and agree that such covenant, provision\nor clause shall automatically be deemed reformed to have the closest effect permitted by applicable law to the original\nform and shall be given effect and enforced as so reformed to whatever extent would be reasonable and enforceable\nunder applicable law. The parties agree that any court interpreting the provisions of this Agreement shall have the\nauthority, if necessary, to reform any such provision to make it enforceable under applicable law.\n11.\nRemedies. Employee acknowledges that a breach or threatened breach by Employee of this\nAgreement will give rise to irreparable injury to Company and that money damages will not be adequate relief for such\ninjury. Accordingly, Employee agrees that Company shall be entitled to obtain injunctive relief, including, but not\nlimited to, temporary restraining orders, preliminary injunctions and/or permanent injunctions, without having to post\nany bond or other security, to restrain or prohibit such breach or threatened breach, in addition to any other legal\nremedies which may be available. In addition to all other relief to which it shall be entitled, Company shall be entitled to\ncease all payments to which Employee would otherwise be entitled under Section 9 hereto; continue to enforce this\nAgreement; recover from Employee all payments made under Section 9 to the extent attributable to a time during which\nEmployee was in violation of the covenants for which payment was made; and recover from Employee all litigation\ncosts and attorneys’ fees incurred by Company in any action or proceeding relating to this Agreement in which Company\nprevails in any respect, including, but not limited to, any action or proceeding in which Company seeks enforcement of\nthis Agreement or seeks relief from Employee’s violation of this Agreement.\n12.\nSurvival of Obligations. Employee acknowledges and agrees that Employee’s obligations under\nthis Agreement, including, without limitation, Employee’s non-disclosure and non-competition obligations, shall survive\nthe termination of Employee’s employment with Company, whether such termination is with or without cause and\nwhether it is voluntary or involuntary. Employee acknowledges and agrees that nothing in this Agreement alters the at-\nwill nature of Employee's employment and that either Company or Employee may terminate the employment\nrelationship at any time, with or without cause or notice. Employee further acknowledges and agrees\nthat: (a) Employee’s non-disclosure, non-disparagement, non-solicitation and non-competition covenants set forth in\nSections 2 and 7 of this Agreement shall be construed as independent covenants and that no breach of any contractual or\nlegal duty by Company shall be held sufficient to excuse or terminate Employee’s obligations or to preclude Company\nfrom obtaining injunctive relief or other remedies for Employee’s violation or threatened violation of such covenants,\nand (b) the existence of any claim or cause of action by Employee against Company, whether predicated on this\nAgreement or otherwise, shall not constitute a defense to Company's enforcement of Employee's obligations under\nSections 2 and 7 of this Agreement.\n13.\nGoverning Law and Choice of Forum. This Agreement shall be construed and enforced in\naccordance with the laws of the State of Indiana, notwithstanding any state’s choice-of-law rules to the contrary. The\nparties agree that any legal action relating to this Agreement\n-9-\nshall be commenced and maintained exclusively before the United States District Court for the Northern District of\nIndiana if jurisdiction permits, or otherwise before any appropriate state court located in Kosciusko County,\nIndiana. The parties hereby submit to the jurisdiction of such courts and waive any right to challenge or otherwise object\nto personal jurisdiction or venue, in any action commenced or maintained in such courts. Language translations aside,\nthe English version shall govern.\n14.\nEnforcement. The parties agree that Zimmer, Inc., Zimmer US, Inc. and/or any or each of their\naffiliates, parents, or direct or indirect subsidiaries (including but not limited to Biomet, Inc. and its direct or indirect\nsubsidiaries), as well as any successor-in-interest to Zimmer, Inc., Zimmer US, Inc. and/or to any of their direct or\nindirect subsidiaries, affiliates, or parents are express and intended parties to and beneficiaries to this Agreement, with\nfull rights to enforce this Agreement independently or in conjunction with each other.\n15.\nSuccessors and Assigns. Company shall have the right to assign this Agreement, and, accordingly,\nthis Agreement shall inure to the benefit of, and may be enforced by, any and all successors and assigns of Company,\nincluding without limitation by asset assignment, stock sale, merger, consolidation or other corporate reorganization, and\nshall be binding on Employee. The services to be provided by Employee to Company are personal to Employee, and\nEmployee shall not have the right to assign Employee’s duties under this Agreement.\n16.\nModification. This Agreement may not be amended, supplemented, or modified except by a written\ndocument signed by both Employee and a duly authorized officer of Company.\n17.\nNo Waiver. The failure of Company to insist in any one or more instances upon performance of any\nprovision of this Agreement or to pursue its rights hereunder shall not be construed as a waiver of any such provisions or\nthe relinquishment of any such rights.\n18.\nCounterparts. This Agreement may be executed in counterparts, each of which shall be deemed an\noriginal, but both of which when taken together will constitute one and the same agreement.\n19.\nEntire Agreement. This Agreement, including Recitals, constitutes the entire agreement of the\nparties with respect to the subjects specifically addressed herein, and supersedes any prior agreements, understandings,\nor representations, oral or written, on the subjects addressed herein. Notwithstanding the foregoing, to the extent the\nemployee has an existing non-competition, confidentiality, and/or non-solicitation agreement in favor of Company and\nhas breached or violated the terms thereof, Company may continue to enforce its rights and remedies under and pursuant\nto such existing agreement.\n- 10-\nEmployee’s signature below indicates that Employee has read the entire Agreement, understands what Employee is\nsigning, and is signing the Agreement voluntarily. Employee agrees that Company advised Employee to consult with an\nattorney prior to signing the Agreement.\n“EMPLOYEE”\n(Employee Signature)\nPrinted Name:\nDate:\n“COMPANY”\nBy:_______________________________________\nPrinted Name: _____________________________\nTitle: _____________________________________\nDate: _____________________________________\n- 11-	EX-10.12 4 zbh-ex1012_349.htm EX-10.12\nExhibit 10.12\nCORPORATE EXECUTIVE CONFIDENTIALITY, NON-COMPETITION\nAND NON-SOLICITATION AGREEMENT\nThis Corporate Executive Confidentiality, Non-Competition and Non-Solicitation Agreement (“Agreement”) is made by\nand between Zimmer, Inc., a corporation having its principal headquarters in Warsaw, Indiana, and\n(“Employee™).\n \nRecitals\nA. For purposes of this Agreement, the term "Company" means Zimmer, Inc., Zimmer US, Inc. and/or\nany or each of their affiliates, parents, or direct or indirect subsidiaries (including but not limited to Biomet, Inc. and its\naffiliates, parents or direct or indirect subsidiaries), as well as any successor-in-interest to Zimmer, Inc., Zimmer US, Inc.\nand/or to any of their direct or indirect subsidiaries, affiliates, or parents.\nB. Employee is employed or is being employed by Company in an executive and/or high-level\nmanagerial capacity in which Employee has or will have extensive access to trade secrets and confidential information of\nCompany, and/or is being offered certain equity incentives.\nC. Company has offered Employee employment and/or other valuable consideration, which may include\nwithout limitation such consideration as a job promotion, an increase in compensation, and/or an equity award,\ncontingent upon Employee's entering into this Agreement.\nAgreement\nNOW, THEREFORE, in consideration of the foregoing recitals, the promises contained herein and other good\nand valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Company and Employee\nagree to be legally bound as follows:\n1. Acknowledgements. Employee acknowledges that Company is engaged in the highly competitive\nbusiness of the development, manufacture, distribution, and sale of orthopedic- and musculoskeletal-related medical and\nsurgical devices, products, and services, including but not limited to hip, knee, trauma, extremities, craniomaxillofacial,\nthoracic, dental rehabilitation, spine, microfixation, bone healing, bone cement, surgical, sports medicine, orthopedic\ndiagnostic (including unique diagnostic products developed for or by Company) and/or biologics devices, products,\nprocesses and services, and that Employee serves or will serve in an executive and/or high-level managerial capacity for\nCompany and in that capacity Employee has and/or will have access to and has and/or will gain knowledge of substantial\ntrade secrets and confidential information of Company.\n2. Non-Disclosure and Ownership of Confidential Information. Employee acknowledges that\nConfidential Information is a valuable, special, and unique asset of Company, and solely the property of Company, and\nagrees to the following; provided, however, that this policy does not, in any manner, prevent employees from filing a\ncomplaint with, providing information to, or participating in an investigation conducted by, the Securities and Exchange\nCommission, the United States Equal Opportunity Commission or any other governmental or law enforcement agency.\n(@) Confidential Information Defined. The term “Confidential Information” includes, but is not\nlimited to, any and all of Company’s trade secrets, confidential and proprietary information and all other information and\ndata of Company that is not generally known to the public or other third parties who could derive economic value from\nits use or disclosure. Confidential Information includes, without limitation, technical information such as product\nspecifications, compounds, formulas, improvements, discoveries, developments, designs, inventions, techniques, new\nproducts and surgical training methods, and research and development information; confidential business methods and\nprocesses; business plans and strategies; marketing plans and strategies; non-public financial information including\nbudgets, sales data, sales forecasts, sales quotas, and information regarding profits or losses; office optimization and\nlogistics information; information pertaining to current and prospective customers; information pertaining to distributors\nand sales structures; pricing information; discount schedules; costing information; personnel information; compensation\nstructure, schedules and plans; and information about current and prospective products or services, whether or not\nreduced to writing or other tangible medium of expression, including work product created by Employee in rendering\nservices for Company.\n(b) Non-Disclosure of Confidential Information. During Employee's employment with Company\nand thereafter, Employee will not disclose, transfer, or use (or seek to induce others to disclose, transfer, or use) any\nConfidential Information for any purpose other than( i) disclosure to authorized employees and agents of Company who\nare bound to maintain the confidentiality of the Confidential Information; (ii) for authorized purposes during the course\nof Employee’s employment in furtherance of Company’s business; and/or (iii) as specifically allowed or required under\napplicable law. Employee's non-disclosure obligations shall continue as long as the Confidential Information remains\nconfidential and shall not apply to information that becomes generally known to the public through no fault or action of\nEmployee. The Federal Defend Trade Secrets Act provides that individuals may not be held criminally or civilly liable\nunder any federal or state trade secret law for the disclosure of a trade secret that is made (a) in confidence to a federal,\nstate or local government official, either directly or indirectly, or to an attorney if such disclosure is made solely for the\npurpose of reporting or investigating a suspected violation of law or for pursuing an anti-retaliation lawsuit; or (b) in a\ncomplaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal and the individual\ndoes not disclose the trade secret except pursuant to a court order.\n(0 Protection of Confidential Information. Employee will notify Company in writing of any\ncircumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. Employee\nwill use Employee's best efforts to protect Confidential Information from unauthorized disclosure, transfer, or\nuse. Employee will implement and abide by all procedures adopted by Company to prevent unauthorized disclosure,\ntransfer, or use of Confidential Information. Notwithstanding the above requirements, nothing in this Agreement shall\nrestrict Employee's right to make disclosures specifically allowed or required under applicable law.\n-\n3. Ownership of Intellectual Property.\n@) Invention Defined. The term “Invention” includes, but is not limited to ideas, programs,\nprocesses, systems, intellectual property, works of authorship, copyrightable materials, discoveries, and/or improvements\nwhich Employee discovers, invents, originates, develops, makes, authors, or conceives alone or in conjunction with\nothers during Employee’s employment with Company and/or within six (6) months after Employee’s employment ends\nwhich relate to Company’s present or future business. An Invention is covered by this Agreement regardless of whether\n(i) Employee conceived of the Invention in the scope of Employee’s employment; (ii) the Invention is patentable; or (iii)\nCompany takes any action to commercialize or develop the Invention.\n(b) Ownership of Inventions. Inventions are solely the property of Company. Employee agrees that\nby operation of law and/or the effect of this Agreement Employee does not have any rights, title, or interest in any\nInventions. Notwithstanding, Employee may be recognized as the inventor of an Invention without retaining any other\nrights associated therewith.\n(0 Disclosure and Assignment of Inventions. Employee hereby assigns to Company all right, title\nand interest Employee may have in any Inventions that are discovered, invented, originated, developed, made, authored,\nor conceived by Employee (whether alone or with others) during Employee’s employment with Company and/or within\nsix (6) months after Employee’s employment ends which relate to Company’s present or future business. Employee\nagrees to: (i) promptly disclose all such Inventions in writing to Company; (ii) keep complete and accurate records of all\nsuch Inventions, which records shall be Company property and shall be retained on Company premises; and (iii) execute\nsuch documents and do such other acts as may be necessary in the opinion of Company to establish and preserve\nCompany’s property rights in all such Inventions. This section shall not apply to any Invention for which no equipment,\nsupplies, facility or trade secret information of Company was used and which was developed entirely on Employee’s\nown time, and (1) which does not relate (a) directly to the business of Company, or (b) to Company’s actual or\ndemonstrably anticipated research or development, and (2) which does not result from any work performed by Employee\nfor Company.\n(d) Works of Authorship. All written, graphic or recorded material and all other works of\nauthorship fixed in a tangible medium of expression made or created by Employee, solely or jointly with others, during\nEmployee’s employment with Company and relating to Company’s business, actual or contemplated, shall be the\nexclusive property of Company (collectively “Works”). Company will have the exclusive right to copyright such\nWorks. Employee agrees that if any Work created while employed by Company, whether or not created at the direction\nof Company, is copyrightable, such Work will be a “work made for hire,” as that term is defined in the copyright laws of\nthe United States. If, for any reason, any copyrightable Works created by Employee are excluded from that definition,\nEmployee hereby assigns and conveys to Company all right, title and interest (including any copyright and renewals) in\nsuch Works.\n(e) Attribution and Use of Works and Inventions; Waiver of Assertion of “Moral” Rights in\nInventions and Works. Employee agrees that Company and its licensees are not\n-3-\nrequired to designate Employee as author, inventor or developer of any Works or Inventions when distributed or\notherwise. Employee hereby waives, and agrees not to assert, any “moral” rights in any Inventions and\nWorks. Employee agrees that Company and its licensees shall have sole discretion with regard to how and for what\npurposes any Inventions or Works are used or distributed.\n() Employee Cooperation in Establishment of Company Proprietary Rights. Employee will sign\ndocuments of assignment, declarations and other documents and take all other actions reasonably required by Company,\nat Company’s expense, to perfect and enforce any of its proprietary rights. In the event Company is unable, for any\nreason whatsoever, to secure Employee’s signature to any lawful or necessary documents required to apply for,\nprosecute, perfect, or assign any United States or foreign application for Letters Patent, trademark, copyright registration,\nor other filing to protect any Invention or Work, Employee hereby irrevocably designates and appoints Company and its\nduly authorized officers and agents as Employee’s agent and attorney in fact, to act for and on Employee’s behalf, to\nexecute and file any such application, registration or other filing, and to do all other lawfully permitted acts to further the\nprosecution, issuance or assignment of Letters Patent or other protections on such Inventions, or registrations for\ntrademark or copyright or other protections on such Works, with the same force and effect as if executed by Employee.\n4., Return of Confidential Information and Company Property. Immediately upon termination of\nEmployee’s employment with Company, Employee shall return to Company all of Company’s property relating to\nCompany’s business, including without limitation all of Company’s property which is in the possession, custody, or\ncontrol of Employee such as Confidential Information, documents, hard copy files, copies of documents and electronic\ninformation/files, and equipment (e.g., computers and mobile phones).\n5. Obligations to Other Entities or Persons. Employee warrants that Employee is not bound by the\nterms of a confidentiality agreement or any other legal obligation which would either preclude or limit Employee from\ndisclosing or using any of Employee’s ideas, inventions, discoveries or other information or otherwise fulfilling\nEmployee’s obligations to Company. While employed by Company, Employee shall not disclose or use any confidential\ninformation belonging to another entity or other person.\n6. Conflict of Interest and Duty of Loyalty. During Employee’s employment with Company,\nEmployee shall not engage, directly or indirectly, in any activity, employment or business venture, whether or not for\nremuneration, that (i) is competitive with Company’s business; (ii) deprives or potentially could deprive Company of any\nbusiness opportunity; (iii) conflicts or potentially could conflict with Company’s business interests; or (iv) is otherwise\ndetrimental to Company, including but not limited to preparations to engage in any of the foregoing activities.\n-4-\n7. Restrictive Covenants. Employee agrees to, and covenants to comply with, each of the following\nseparate and divisible restrictions:\n(a) Definitions.\n1D “Competing Product” is defined as any implant, device, or medical product(s), service(s),\ninstrument(s) or supplies that is or are the same as, related to, or similar to any product, process or service that Company\nis researching, developing, manufacturing, distributing, selling and/or providing at the time of Employee’s separation\nfrom employment with Company (including, but not limited to, any product or service Company’s Hip, Knee, Trauma,\nExtremities, Craniomaxillofacial, Thoracic, Biologics, Surgical, Sports Medicine, Microfixation, Bone Healing, Bone\nCement, Orthopedic Diagnostic, Spine and/or Dental division is researching, developing, manufacturing, distributing,\nselling and/or providing at the time of Employee's separation from employment with Company).\n(2) “Competing Organization” is defined as any organization that researches, develops,\nmanufactures, markets, distributes and/or sells one or more Competing Products. A Competing Organization is\ndiversified if it operates multiple, independently operating business divisions, units, lines or segments some of which do\nnot research, develop, manufacture, market, distribute and/or sell any Competing Products.\n3) “Prohibited Capacity” is defined as (a) any same or similar capacity to that held by\nEmployee at any time during Employee's last two (2) years of employment with Company; (b) any executive or\nmanagerial capacity; or (c) any capacity in which Employee’s knowledge of Confidential Information and/or Inventions\nwould render Employee’s assistance to a Competing Organization a competitive advantage.\n4) “Restricted Geographic Area” is defined as all countries, territories, parishes, municipalities\nand states in which Company is doing business or is selling its products at the time of termination of Employee’s\nemployment with Company, including but not limited to every parish and municipality in the state of\nLouisiana. Employee acknowledges that this geographic scope is reasonable given Employee's position with Company,\nthe international scope of Company's business; and the fact that Employee could compete with Company from anywhere\nCompany does business.\n(5) “Restricted Period” is defined as the date Employee executes this Agreement, continuing\nthrough the eighteen (18) months after the Employee’s last day of employment with Company unless otherwise extended\nby Employee’s breach of this Agreement. The running time on the Restricted Period shall be suspended during any\nperiod in which Employee is in violation of any of the restrictive covenants set forth herein, and all restrictions shall\nautomatically be extended by the period Employee was in violation of any such restrictions.\n(6) “Customer” is defined as any person or entity with respect to whom, as of the date of\nEmployee’s separation from Company employment or at any time during the two years prior to such separation,\nCompany sold or provided any products and/or services.\n(7) “Active Prospect” is defined as any person or entity that Company individually and\nspecifically marketed to and/or held discussions with regarding the distribution\n-5-\nand/or sale of any of Company's products, processes or services at any time during the last six (6) months of Employee’s\nemployment with Company.\n(8) “Severance Benefit Period” is the period of time represented by the total amount of any\nseverance benefit offered to Employee (whether or not actually paid). By way of illustration, if Employee were offered a\nlump-sum severance benefit equivalent to ten (10) weeks of Employee’s final base pay upon termination of his or her\nemployment with the Company, Employee’s Severance Benefit Period would be 10 weeks, whether or not Employee\nactually fulfilled all requirements of receiving, and did receive, any portion of the severance benefit.\n(b) Restrictive Covenants. During the Restricted Period, Employee agrees to be bound by each of\nthe following independent and divisible restrictions:\n(D Covenant Not to Compete.\n(A) Employee will not, within the Restricted Geographic Area, be employed by, work\nfor, consult with, provide services to, or lend assistance to any Competing Organization in a Prohibited Capacity.\n(B) Employee may be employed by, work for, consult with, provide services to, or\nlend assistance to a Competing Organization provided that: (i) the Competing Organization’s business is diversified;\n(ii) the part of the Competing Organization's business with which Employee will be affiliated would not, evaluated on a\nstand-alone basis, be a Competing Organization; (iii) Employee’s affiliation with the Competing Organization does not\ninvolve any Competing Products; (iv) Employee provides Company a written description of Employee’s anticipated\nactivities on behalf of the Competing Organization which includes, without limitation, an assurance satisfactory to\nCompany that Employee’s affiliation with the Competing Organization does not constitute a Prohibited Capacity; and (v)\nEmployee's affiliation with the Competing Organization does not constitute a competitive disadvantage to Company.\n(2) Covenant Not to Solicit Customers or Active Prospects. Employee will not, directly or\nindirectly, (i) provide, sell, or market; (ii) assist in the provision, selling or marketing of; or (iii) attempt to provide, sell\nor market any Competing Products to any of Company’s Customers or Active Prospects located in the Restricted\nGeographic Area.\n3) Covenant Not to Interfere With Business Relationships. Employee will not, within the\nRestricted Geographic Area, urge, induce or seek to induce any of Company’s independent contractors, subcontractors,\ndistributors, brokers, consultants, sales representatives, customers, vendors, suppliers or any other person or entity with\nwhom Company has a business relationship at the time of Employee's separation from Company employment to\nterminate its or their relationship with, or representation of, Company or to cancel, withdraw, reduce, limit or in any\nmanner modify any such person’s or entity’s business with, or representation of, Company\n4) Covenant Not to Solicit Company Employees. Employee will not employ, solicit for\nemployment, or advise any other person or entity to employ or solicit for employment, any individual employed by\nCompany at the time of Employee's separation from Company\n-6-\nemployment, or otherwise directly or indirectly induce or entice any such employee to leave his/her employment with\nCompany.\n(5) Covenant Not to Disparage Company. Employee will not make or publish any disparaging\nor derogatory statements about Company; about Company's products, processes, or services; or about Company's past,\npresent and future officers, directors, employees, attorneys and agents. Disparaging or derogatory statements include,\nbut are not limited to, negative statements regarding Company’s business or other practices; provided, however, nothing\nherein shall prohibit Employee from providing any information as may be compelled by law or legal process.\n8. Reasonableness of Terms. Employee acknowledges and agrees that the restrictive covenants\ncontained in this Agreement restrict Employee from engaging in activities for a competitive purpose and are reasonably\nnecessary to protect Company’s legitimate interests in Confidential Information, Inventions, and goodwill. Additionally,\nEmployee acknowledges and agrees that the restrictive covenants are reasonable in all respects, including, but not\nlimited to, temporal duration, scope of prohibited activities and geographic area. Employee further acknowledges and\nagrees that the restrictive covenants set forth in this Agreement will not pose unreasonable hardship on Employee and\nthat Employee will have a reasonable opportunity to earn an equivalent livelihood without violating any provision of this\nAgreement.\n9. Non-Competition Period Payments.\n@) Eligibility and Amount. In the event of Employee’s involuntary separation from employment\nwith the Company for a reason that renders Employee eligible for benefits under the terms of the Company’s Severance\nPlan, then to the extent Employee is denied, solely because of the restrictive covenant provisions of Section 7 of this\nAgreement, a specific full-time or part-time employment, consulting, or other position that would otherwise be offered to\nEmployee by a Competing Organization, and provided Employee satisfies all conditions stated herein, then upon\nexpiration of Employee’s Severance Benefit Period, Company will make monthly payments to Employee for each month\nEmployee remains unemployed through the end of the Restricted Period. These monthly payments shall equal the lesser\nof Employee’s monthly base pay at the time of Employee's separation from Company employment (exclusive of bonus\nand other extra compensation and any other employee benefits) or the monthly compensation that would have been\noffered to Employee by the Competing Organization. This Section 9 will not apply if Employee leaves employment\nwith the Company voluntarily or if Company terminates Employee’s employment for a reason or reasons that render\nEmployee ineligible for benefits under terms of the Company’s Severance Plan.\n(b) Verification of Eligibility for Non-Competition Period Payments. To qualify for payments under\nthis Section 9, Employee must provide Company detailed written documentation supporting eligibility for payment,\nincluding, at a minimum, (i) the name and location of the Competing Organization that would have employed Employee\nbut for the provisions of Section 7 of this Agreement, (ii) the title, nature, and detailed job responsibilities of the\nemployment position with the Competing Organization that Employee was denied, (iii) the date Employee was denied\nthe employment position, and (iv) the name and contact information of a managerial employee at the Competing\nOrganization who has sufficient authority to confirm that Employee\n-7-\nwas denied this specific employment position with the Competing Organization solely because Employee is subject to\nthe provisions of Section 7 of this Agreement (the “eligibility documentation”). Upon receipt of the eligibility\ndocumentation, Company will determine eligibility for payment and, if eligibility is established, payments will\ncommence as of the date of Company’s receipt of the eligibility documentation or the date Employee’s Severance\nBenefit Period ends, whichever is later.\n(0 Obligation to Pursue Replacement Employment and Verification of Continued Eligibility for\nNon-Competition Period Payments. Employee is obligated to diligently seek and pursue replacement employment that\ndoes not violate Section 7 of this Agreement ("replacement employment") during any period in which Employee seeks\nand/or accepts payment from Company under this Section 9. After eligibility for non-competition period payments is\nestablished, Employee will, on or before the 15th day of each month of eligibility for continued payments, submit to\nCompany a written statement (i) identifying by name and address all prospective employers with whom Employee has\napplied or inquired about employment; (ii) identifying positions sought with each listed employer and specific actions\ntaken in seeking each position; (iii) describing all other efforts made to obtain replacement employment; and\n(iv) describing any offers of employment received, including the name of the employer; the nature, title, and\ncompensation terms of the position offered; the actual or anticipated start date if the offer has been accepted; and the\nreason(s) for declining if the offer was declined.\n \n(d) Effect of Replacement Employment on Non-Competition Period Payments. If Employee is\ndenied a specific employment, consulting or other such position with a Competing Organization solely because of the\nrestrictive covenant provisions of Section 7 of this Agreement but obtains other work for compensation, and the monthly\ncompensation (including base pay, commissions, incentive compensation, bonuses, fees and other compensation) for the\nreplacement work is less than Employee’s monthly base pay at the time of Employee’s separation from employment with\nCompany, Company agrees to pay Employee the difference for each such month through the end of the Restricted\nPeriod, again upon expiration of any severance benefits which Employee was offered and provided Employee satisfies\nall conditions stated herein, with monthly payments not to exceed the amount to which Employee is entitled under\nsubsection (a) of this Section 9. Employee shall submit to Company payroll records and/or any other records reasonably\nrequested by Company showing all compensation received by Employee from the replacement work as a condition of\nCompany's payment of Non-Competition Period Payments covering any period of time when Employee performs work\nfor compensation.\n(e) Company's Right To Provide Release of Obligations in Lieu of Non-Competition Period\nPayments. Notwithstanding any of the foregoing provisions of this Section 9, Company reserves the right to release\nEmployee from Employee’s obligations under Section 7 of this Agreement at any time during the Restricted Period, in\nfull or in sufficient part to allow Employee to accept an opportunity that would otherwise be prohibited under this\nAgreement, at which time Company’s payment obligations under this Section 9 shall cease immediately and Employee\nshall not be entitled to any further such payments or compensation.\n10. Severability, Modification of Restrictions. The covenants and restrictions in this Agreement are\nseparate and divisible, and to the extent any clause, portion or section of this Agreement is determined to be\nunenforceable or invalid for any reason, Company and Employee\n-8-\nacknowledge and agree that such unenforceability or invalidity shall not affect the enforceability or validity of the\nremainder of the Agreement. If any particular covenant, provision or clause of this Agreement is determined to be\nunreasonable or unenforceable for any reason, including, without limitation, temporal duration, scope of prohibited\nactivity, and/or scope of geographic area, Company and Employee acknowledge and agree that such covenant, provision\nor clause shall automatically be deemed reformed to have the closest effect permitted by applicable law to the original\nform and shall be given effect and enforced as so reformed to whatever extent would be reasonable and enforceable\nunder applicable law. The parties agree that any court interpreting the provisions of this Agreement shall have the\nauthority, if necessary, to reform any such provision to make it enforceable under applicable law.\n11. Remedies. Employee acknowledges that a breach or threatened breach by Employee of this\nAgreement will give rise to irreparable injury to Company and that money damages will not be adequate relief for such\ninjury. Accordingly, Employee agrees that Company shall be entitled to obtain injunctive relief, including, but not\nlimited to, temporary restraining orders, preliminary injunctions and/or permanent injunctions, without having to post\nany bond or other security, to restrain or prohibit such breach or threatened breach, in addition to any other legal\nremedies which may be available. In addition to all other relief to which it shall be entitled, Company shall be entitled to\ncease all payments to which Employee would otherwise be entitled under Section 9 hereto; continue to enforce this\nAgreement; recover from Employee all payments made under Section 9 to the extent attributable to a time during which\nEmployee was in violation of the covenants for which payment was made; and recover from Employee all litigation\ncosts and attorneys’ fees incurred by Company in any action or proceeding relating to this Agreement in which Company\nprevails in any respect, including, but not limited to, any action or proceeding in which Company seeks enforcement of\nthis Agreement or seeks relief from Employee’s violation of this Agreement.\n12. Survival of Obligations. Employee acknowledges and agrees that Employee’s obligations under\nthis Agreement, including, without limitation, Employee’s non-disclosure and non-competition obligations, shall survive\nthe termination of Employee’s employment with Company, whether such termination is with or without cause and\nwhether it is voluntary or involuntary. Employee acknowledges and agrees that nothing in this Agreement alters the at-\nwill nature of Employee's employment and that either Company or Employee may terminate the employment\nrelationship at any time, with or without cause or notice. Employee further acknowledges and agrees\nthat: (a) Employee’s non-disclosure, non-disparagement, non-solicitation and non-competition covenants set forth in\nSections 2 and 7 of this Agreement shall be construed as independent covenants and that no breach of any contractual or\nlegal duty by Company shall be held sufficient to excuse or terminate Employee’s obligations or to preclude Company\nfrom obtaining injunctive relief or other remedies for Employee’s violation or threatened violation of such covenants,\nand (b) the existence of any claim or cause of action by Employee against Company, whether predicated on this\nAgreement or otherwise, shall not constitute a defense to Company's enforcement of Employee's obligations under\nSections 2 and 7 of this Agreement.\n13. Governing I.aw and Choice of Forum. This Agreement shall be construed and enforced in\naccordance with the laws of the State of Indiana, notwithstanding any state’s choice-of-law rules to the contrary. The\nparties agree that any legal action relating to this Agreement\n-9-\nshall be commenced and maintained exclusively before the United States District Court for the Northern District of\nIndiana if jurisdiction permits, or otherwise before any appropriate state court located in Kosciusko County,\nIndiana. The parties hereby submit to the jurisdiction of such courts and waive any right to challenge or otherwise object\nto personal jurisdiction or venue, in any action commenced or maintained in such courts. Language translations aside,\nthe English version shall govern.\n14. Enforcement. The parties agree that Zimmer, Inc., Zimmer US, Inc. and/or any or each of their\naffiliates, parents, or direct or indirect subsidiaries (including but not limited to Biomet, Inc. and its direct or indirect\nsubsidiaries), as well as any successor-in-interest to Zimmer, Inc., Zimmer US, Inc. and/or to any of their direct or\nindirect subsidiaries, affiliates, or parents are express and intended parties to and beneficiaries to this Agreement, with\nfull rights to enforce this Agreement independently or in conjunction with each other.\n15. Successors and Assigns. Company shall have the right to assign this Agreement, and, accordingly,\nthis Agreement shall inure to the benefit of, and may be enforced by, any and all successors and assigns of Company,\nincluding without limitation by asset assignment, stock sale, merger, consolidation or other corporate reorganization, and\nshall be binding on Employee. The services to be provided by Employee to Company are personal to Employee, and\nEmployee shall not have the right to assign Employee’s duties under this Agreement.\n16. Modification. This Agreement may not be amended, supplemented, or modified except by a written\ndocument signed by both Employee and a duly authorized officer of Company.\n17. No Waiver. The failure of Company to insist in any one or more instances upon performance of any\nprovision of this Agreement or to pursue its rights hereunder shall not be construed as a waiver of any such provisions or\nthe relinquishment of any such rights.\n18. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an\noriginal, but both of which when taken together will constitute one and the same agreement.\n19. Entire Agreement. This Agreement, including Recitals, constitutes the entire agreement of the\nparties with respect to the subjects specifically addressed herein, and supersedes any prior agreements, understandings,\nor representations, oral or written, on the subjects addressed herein. Notwithstanding the foregoing, to the extent the\nemployee has an existing non-competition, confidentiality, and/or non-solicitation agreement in favor of Company and\nhas breached or violated the terms thereof, Company may continue to enforce its rights and remedies under and pursuant\nto such existing agreement.\n-10-\nEmployee’s signature below indicates that Employee has read the entire Agreement, understands what Employee is\nsigning, and is signing the Agreement voluntarily. Employee agrees that Company advised Employee to consult with an\nattorney prior to signing the Agreement.\n“EMPLOYEE”\n(Employee Signature)\nPrinted Name:\nDate:\n“COMPANY”\nBy:\n \nPrinted Name:\n \nTitle:\n \nDate:\n \n-11-	EX-10.12 4 zbh-ex1012_349.htm EX-10.12\nExhibit 10.12\nCORPORATE EXECUTIVE CONFIDENTIALITY, NON-COMPETITION\nAND NON-SOLICITATION AGREEMENT\nThis Corporate Executive Confidentiality, Non-Competition and Non-Solicitation Agreement ("Agreement") is made by\nand between Zimmer, Inc., a corporation having its principal headquarters in Warsaw, Indiana, and\n("Employee").\nRecitals\nA.\nFor purposes of this Agreement, the term "Company" means Zimmer, Inc., Zimmer US, Inc. and/or\nany or each of their affiliates, parents, or direct or indirect subsidiaries (including but not limited to Biomet, Inc. and its\naffiliates, parents or direct or indirect subsidiaries), as well as any successor-in-interest to Zimmer, Inc., Zimmer US, Inc.\nand/or to any of their direct or indirect subsidiaries, affiliates, or parents.\nB.\nEmployee is employed or is being employed by Company in an executive and/or high-level\nmanagerial capacity in which Employee has or will have extensive access to trade secrets and confidential information of\nCompany, and/or is being offered certain equity incentives.\nC.\nCompany has offered Employee employment and/or other valuable consideration, which may include\nwithout limitation such consideration as a job promotion, an increase in compensation, and/or an equity award,\ncontingent upon Employee's entering into this Agreement.\nAgreement\nNOW, THEREFORE, in consideration of the foregoing recitals, the promises contained herein and other good\nand valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Company and Employee\nagree to be legally bound as follows:\n1.\nAcknowledgements Employee acknowledges that Company is engaged in the highly competitive\nbusiness of the development, manufacture, distribution, and sale of orthopedic- and musculoskeletal-related medical and\nsurgical devices, products, and services, including but not limited to hip, knee, trauma, extremities, craniomaxillofacial,\nthoracic, dental rehabilitation, spine, microfixation, bone healing, bone cement, surgical, sports medicine, orthopedic\ndiagnostic (including unique diagnostic products developed for or by Company) and/or biologics devices, products,\nprocesses and services, and that Employee serves or will serve in an executive and/or high-level managerial capacity for\nCompany and in that capacity Employee has and/or will have access to and has and/or will gain knowledge of substantial\ntrade secrets and confidential information of Company.\n2.\nNon-Disclosure and Ownership of Confidential Information. Employee acknowledges that\nConfidential Information is a valuable, special, and unique asset of Company, and solely the property of Company, and\nagrees to the following; provided, however, that this policy does not, in any manner, prevent employees from filing\na\ncomplaint with, providing information to, or participating in an investigation conducted by, the Securities and Exchange\nCommission, the United States Equal Opportunity Commission or any other governmental or law enforcement agency.\n(a)\nConfidential Information Defined. The term "Confidential Information" includes, but is\nnot\nlimited to, any and all of Company's trade secrets, confidential and proprietary information and all other information and\ndata of Company that is not generally known to the public or other third parties who could derive economic value from\nits use or disclosure. Confidential Information includes, without limitation, technical information such as product\nspecifications, compounds, formulas, improvements, discoveries, developments, designs, inventions, techniques, new\nproducts and surgical training methods, and research and development information; confidential business methods and\nprocesses; business plans and strategies; marketing plans and strategies; non-public financial information including\nbudgets, sales data, sales forecasts, sales quotas, and information regarding profits or losses; office optimization and\nlogistics\ninformation;\ninformation\npertaining\nto\ncurrent\nand\nprospective\ncustomers;\ninformation\npertaining\nto\ndistributors\nand sales structures; pricing information; discount schedules; costing information; personnel information; compensation\nstructure, schedules and plans; and information about current and prospective products or services, whether or not\nreduced to writing or other tangible medium of expression, including work product created by Employee in rendering\nservices for Company.\n(b)\nNon-Disclosure of Confidential Information. During Employee's employment with Company\nand thereafter, Employee will not disclose, transfer, or use (or seek to induce others to disclose, transfer, or use) any\nConfidential Information for any purpose other than( i) disclosure to authorized employees and agents of Company who\nare bound to maintain the confidentiality of the Confidential Information; (ii) for authorized purposes during the course\nof Employee's employment in furtherance of Company's business; and/or (iii) as specifically allowed or required under\napplicable law. Employee's non-disclosure obligations shall continue as long as the Confidential Information remains\nconfidential and shall not apply to information that becomes generally known to the public through no fault or action of\nEmployee.\nThe\nFederal\nDefend\nTrade\nSecrets\nAct\nprovides\nthat\nindividuals\nmay\nnot\nbe\nheld\ncriminally\nor\ncivilly\nliable\nunder any federal or state trade secret law for the disclosure of a trade secret that is made (a) in confidence to a federal,\nstate or local government official, either directly or indirectly, or to an attorney if such disclosure is made solely for the\npurpose of reporting or investigating a suspected violation of law or for pursuing an anti-retaliation lawsuit; or (b) in a\ncomplaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal and the individual\ndoes not disclose the trade secret except pursuant to a court order.\n(c)\nProtection of Confidential Information. Employee will notify Company in writing\nof\nany\ncircumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. Employee\nwill use Employee's best efforts to protect Confidential Information from unauthorized disclosure, transfer, or\nuse. Employee will implement and abide by all procedures adopted by Company to prevent unauthorized disclosure,\ntransfer, or use of Confidential Information. Notwithstanding the above requirements, nothing in this Agreement shall\nrestrict Employee's right to make disclosures specifically allowed or required under applicable law.\n-2-\n3.\nOwnership of Intellectual Property.\n(a)\nInvention Defined. The term "Invention" includes, but is not limited to ideas, programs,\nprocesses, systems, intellectual property, works of authorship, copyrightable materials, discoveries, and/or improvements\nwhich Employee discovers, invents, originates, develops, makes, authors, or conceives alone or in conjunction with\nothers during Employee's employment with Company and/or within six (6) months after Employee's employment ends\nwhich relate to Company's present or future business. An Invention is covered by this Agreement regardless of whether\n(i) Employee conceived of the Invention in the scope of Employee's employment; (ii) the Invention is patentable; or (iii)\nCompany takes any action to commercialize or develop the Invention.\n(b)\nOwnership of Inventions. Inventions are solely the property of Company. Employee agrees that\nby operation of law and/or the effect of this Agreement Employee does not have any rights, title, or interest in any\nInventions. Notwithstanding, Employee may be recognized as the inventor of an Invention without retaining any other\nrights associated therewith.\n(c)\nDisclosure and Assignment of Inventions. Employee hereby assigns to Company all right, title\nand interest Employee may have in any Inventions that are discovered, invented, originated, developed, made, authored,\nor conceived by Employee (whether alone or with others) during Employee's employment with Company and/or within\nsix (6) months after Employee's employment ends which relate to Company's present or future business. Employee\nagrees to: (i) promptly disclose all such Inventions in writing to Company; (ii) keep complete and accurate records of all\nsuch Inventions, which records shall be Company property and shall be retained on Company premises; and (iii) execute\nsuch documents and do such other acts as may be necessary in the opinion of Company to establish and preserve\nCompany's property rights in all such Inventions. This section shall not apply to any Invention for which no equipment,\nsupplies, facility or trade secret information of Company was used and which was developed entirely on Employee's\nown time, and (1) which does not relate (a) directly to the business of Company, or (b) to Company's actual or\ndemonstrably anticipated research or development, and (2) which does not result from any work performed by Employee\nfor Company.\n(d)\nWorks of Authorship. All written, graphic or recorded material and all other works of\nauthorship fixed in a tangible medium of expression made or created by Employee, solely or jointly with others, during\nEmployee's employment with Company and relating to Company's business, actual or contemplated, shall be the\nexclusive property of Company (collectively "Works"). Company will have the exclusive right to copyright such\nWorks. Employee agrees that if any Work created while employed by Company, whether or not created at the direction\nof Company, is copyrightable, such Work will be a "work made for hire," as that term is defined in the copyright laws of\nthe United States. If, for any reason, any copyrightable Works created by Employee are excluded from that definition,\nEmployee hereby assigns and conveys to Company all right, title and interest (including any copyright and renewals)\nin\nsuch Works.\n(e)\nAttribution and Use of Works and Inventions; Waiver of Assertion of "Moral" Rights in\nInventions and Works. Employee agrees that Company and its licensees are not\n-3-\nrequired to designate Employee as author, inventor or developer of any Works or Inventions when distributed\nor\notherwise. Employee hereby waives, and agrees not to assert, any "moral" rights in any Inventions and\nWorks. Employee agrees that Company and its licensees shall have sole discretion with regard to how and for what\npurposes any Inventions or Works are used or distributed.\n(f)\nEmployee Cooperation in Establishment of Company ProprietaryR Employee will sign\ndocuments of assignment, declarations and other documents and take all other actions reasonably required by Company,\nat Company's expense, to perfect and enforce any of its proprietary rights. In the event Company is unable, for any\nreason whatsoever, to secure Employee's signature to any lawful or necessary documents required to apply for,\nprosecute, perfect, or assign any United States or foreign application for Letters Patent, trademark, copyright registration,\nor\nother\nfiling\nto\nprotect\nany\nInvention\nor\nWork,\nEmployee\nhereby\nirrevocably\ndesignates\nand\nappoints\nCompany\nand\nits\nduly authorized officers and agents as Employee's agent and attorney in fact, to act for and on Employee's behalf, to\nexecute and file any such application, registration or other filing, and to do all other lawfully permitted acts to further the\nprosecution, issuance or assignment of Letters Patent or other protections on such Inventions, or registrations for\ntrademark or copyright or other protections on such Works, with the same force and effect as if executed by Employee.\n4.\nReturn of Confidential Information and Company Property. Immediately upon termination of\nEmployee's employment with Company, Employee shall return to Company all of Company's property relating to\nCompany's business, including without limitation all of Company's property which is in the possession, custody, or\ncontrol of Employee such as Confidential Information, documents, hard copy files, copies of documents and electronic\ninformation/files, and equipment (e.g., computers and mobile phones).\n5.\nObligations to Other Entities or Persons. Employee warrants that Employee is not bound by the\nterms\nof\na\nconfidentiality agreement or any other legal obligation which would either preclude or limit Employee\nfrom\ndisclosing or using any of Employee's ideas, inventions, discoveries or other information or otherwise fulfilling\nEmployee's obligations to Company. While employed by Company, Employee shall not disclose or use any confidential\ninformation belonging to another entity or other person.\n6.\nConflict of Interest and Duty of Loyalty.. During Employee's employment with Company,\nEmployee shall not engage, directly or indirectly, in any activity, employment or business venture, whether or not for\nremuneration, that (i) is competitive with Company's business; (ii) deprives or potentially could deprive Company of any\nbusiness opportunity; (iii) conflicts or potentially could conflict with Company's business interests; or (iv) is otherwise\ndetrimental to Company, including but not limited to preparations to engage in any of the foregoing activities.\n-4-\n7.\nRestrictive Covenants. Employee agrees to, and covenants to comply with, each of the following\nseparate and divisible restrictions:\n(a)\nDefinitions.\n(1)\n"Competing Product" is defined as any implant, device, or medical product(s), service(s),\ninstrument(s) or supplies that is or are the same as, related to, or similar to any product, process or service that Company\nis researching, developing, manufacturing, distributing, selling and/or providing at the time of Employee's separation\nfrom employment with Company (including, but not limited to, any product or service Company's Hip, Knee, Trauma,\nExtremities, Craniomaxillofacial Thoracic, Biologics, Surgical, Sports Medicine, Microfixation, Bone Healing, Bone\nCement, Orthopedic Diagnostic, Spine and/or Dental division is researching, developing, manufacturing, distributing,\nselling and/or providing at the time of Employee's separation from employment with Company).\n(2)\n"Competing Organization" is defined as any organization that researches, develops,\nmanufactures, markets, distributes and/or sells one or more Competing Products. A Competing Organization is\ndiversified if it operates multiple, independently operating business divisions, units, lines or segments some of which do\nnot research, develop, manufacture, market, distribute and/or sell any Competing Products.\n(3)\n"Prohibited Capacity" is defined as (a) any same or similar capacity to that held by\nEmployee at any time during Employee's last two (2) years of employment with Company; (b) any executive or\nmanagerial capacity; or (c) any capacity in which Employee's knowledge of Confidential Information and/or Inventions\nwould render Employee's assistance to a Competing Organization a competitive advantage.\n(4)\n"Restricted Geographic Area" is defined as all countries, territories, parishes, municipalities\nand states in which Company is doing business or is selling its products at the time of termination of Employee's\nemployment with Company, including but not limited to every parish and municipality in the state of\nLouisiana. Employee acknowledges that this geographic scope is reasonable given Employee's position with Company,\nthe international scope of Company's business; and the fact that Employee could compete with Company from anywhere\nCompany does business.\n(5)\n"Restricted Period" is defined as the date Employee executes this Agreement, continuing\nthrough the eighteen (18) months after the Employee's last day of employment with Company unless otherwise extended\nby Employee's breach of this Agreement. The running time on the Restricted Period shall be suspended during any\nperiod in which Employee is in violation of any of the restrictive covenants set forth herein, and all restrictions shall\nautomatically be extended by the period Employee was in violation of any such restrictions.\n(6)\n"Customer" is defined as any person or entity with respect to whom, as of the date of\nEmployee's separation from Company employment or at any time during the two years prior to such separation,\nCompany sold or provided any products and/or services.\n(7)\n"Active Prospect" is defined as any person or entity that Company individually and\nspecifically marketed to and/or held discussions with regarding the distribution\n-5-\nand/or sale of any of Company's products, processes or services at any time during the last six (6) months of Employee's\nemployment with Company.\n(8)\n"Severance Benefit Period" is the period of time represented by the total amount of any\nseverance benefit offered to Employee (whether or not actually paid). By way of illustration, if Employee were offered\na\nlump-sum severance benefit equivalent to ten (10) weeks of Employee's final base pay upon termination of his or her\nemployment with the Company, Employee's Severance Benefit Period would be 10 weeks, whether or not Employee\nactually fulfilled all requirements of receiving, and did receive, any portion of the severance benefit.\n(b)\nRestrictive Covenants. During the Restricted Period, Employee agrees to be bound by each of\nthe following independent and divisible restrictions:\n(1)\nCovenant Not to Compete.\n(A)\nEmployee will not, within the Restricted Geographic Area, be employed by, work\nfor, consult with, provide services to, or lend assistance to any Competing Organization in a Prohibited Capacity.\n(B) Employee may be employed by, work for, consult with, provide services to, or\nlend assistance to a Competing Organization provided that: (i) the Competing Organization's business is diversified;\n(ii) the part of the Competing Organization's business with which Employee will be affiliated would not, evaluated on\na\nstand-alone basis, be a Competing Organization; (iii) Employee's affiliation with the Competing Organization does not\ninvolve any Competing Products; (iv) Employee provides Company a written description of Employee's anticipated\nactivities on behalf of the Competing Organization which includes, without limitation, an assurance satisfactory to\nCompany that Employee's affiliation with the Competing Organization does not constitute a Prohibited Capacity; and\n(v)\nEmployee's affiliation with the Competing Organization does not constitute a competitive disadvantage to Company.\n(2)\nCovenant Not to Solicit Customers or Active Prospects. Employee will not, directly or\nindirectly, (i) provide, sell, or market; (ii) assist in the provision, selling or marketing of; or (iii) attempt to provide, sell\nor market any Competing Products to any of Company's Customers or Active Prospects located in the Restricted\nGeographic Area.\n(3)\nCovenant Not to Interfere With Business Relationships. Employee will not, within the\nRestricted Geographic Area, urge, induce or seek to induce any of Company's independent contractors, subcontractors,\ndistributors, brokers, consultants, sales representatives, customers, vendors, suppliers or any other person or entity with\nwhom Company has a business relationship at the time of Employee's separation from Company employment to\nterminate its or their relationship with, or representation of, Company or to cancel, withdraw, reduce, limit or in any\nmanner modify any such person's or entity's business with, or representation of, Company\n(4)\nCovenant Not to Solicit Company Employees. Employee will not employ, solicit for\nemployment, or advise any other person or entity to employ or solicit for employment, any individual employed by\nCompany at the time of Employee's separation from Company\n-6-\nemployment, or otherwise directly or indirectly induce or entice any such employee to leave his/her employment with\nCompany.\n(5)\nCovenant Not to Disparage Company.. Employee will not make or publish any disparaging\nor derogatory statements about Company; about Company's products, processes, or services; or about Company's past,\npresent and future officers, directors, employees, attorneys and agents. Disparaging or derogatory statements include,\nbut are not limited to, negative statements regarding Company's business or other practices; provided, however, nothing\nherein shall prohibit Employee from providing any information as may be compelled by law or legal process.\n8.\nReasonableness of Terms. Employee acknowledges and agrees that the restrictive covenants\ncontained in this Agreement restrict Employee from engaging in activities for a competitive purpose and are reasonably\nnecessary to protect Company's legitimate interests in Confidential Information, Inventions, and goodwill. Additionally,\nEmployee acknowledges and agrees that the restrictive covenants are reasonable in all respects, including, but not\nlimited to, temporal duration, scope of prohibited activities and geographic area. Employee further acknowledges\nand\nagrees that the restrictive covenants set forth in this Agreement will not pose unreasonable hardship on Employee and\nthat Employee will have a reasonable opportunity to earn an equivalent livelihood without violating any provision of this\nAgreement.\n9.\nNon-Competition Period Payments.\n(a)\nEligibility and Amount. In the event of Employee's involuntary separation from employment\nwith the Company for a reason that renders Employee eligible for benefits under the terms of the Company's Severance\nPlan, then to the extent Employee is denied, solely because of the restrictive covenant provisions of Section 7 of this\nAgreement, a specific full-time or part-time employment, consulting, or other position that would otherwise be offered to\nEmployee by a Competing Organization, and provided Employee satisfies all conditions stated herein, then upon\nexpiration of Employee's Severance Benefit Period, Company will make monthly payments to Employee for each month\nEmployee remains unemployed through the end of the Restricted Period. These monthly payments shall equal the lesser\nof Employee's monthly base pay at the time of Employee's separation from Company employment (exclusive of bonus\nand other extra compensation and any other employee benefits) or the monthly compensation that would have been\noffered to Employee by the Competing Organization. This Section 9 will not apply if Employee leaves employment\nwith the Company voluntarily or if Company terminates Employee's employment for a reason or reasons that render\nEmployee ineligible for benefits under terms of the Company's Severance Plan.\n(b)\nVerification of Eligibility. for Non-Competition Period Payments. To qualify for payments under\nthis Section 9, Employee must provide Company detailed written documentation supporting eligibility for payment,\nincluding, at a minimum, (i) the name and location of the Competing Organization that would have employed Employee\nbut for the provisions of Section 7 of this Agreement, (ii) the title, nature, and detailed job responsibilities of the\nemployment position with the Competing Organization that Employee was denied, (iii) the date Employee was denied\nthe employment position, and (iv) the name and contact information of a managerial employee at the Competing\nOrganization who has sufficient authority to confirm that Employee\n-7-\nwas denied this specific employment position with the Competing Organization solely because Employee is subject\nto\nthe provisions of Section 7 of this Agreement (the "eligibility documentation") Upon receipt of the eligibility\ndocumentation, Company will determine eligibility for payment and, if eligibility is established, payments\nwill\ncommence as of the date of Company's receipt of the eligibility documentation or the date Employee's Severance\nBenefit Period ends, whichever is later.\n(c)\nObligation to Pursue Replacement Employment and Verification of Continued Eligibility for\nNon-Competition Period Payments. Employee is obligated to diligently seek and pursue replacement employment that\ndoes not violate Section 7 of this Agreement ("replacement employment") during any period in which Employee seeks\nand/or accepts payment from Company under this Section 9. After eligibility for non-competition period payments is\nestablished,\nEmployee will, on or before the 15th day of each month of eligibility for continued payments, submit\nto\nCompany a written statement (i) identifying by name and address all prospective employers with whom Employee has\napplied or inquired about employment; (ii) identifying positions sought with each listed employer and specific actions\ntaken in seeking each position; (iii) describing all other efforts made to obtain replacement employment; and\n(iv) describing any offers of employment received, including the name of the employer; the nature, title, and\ncompensation terms of the position offered; the actual or anticipated start date if the offer has been accepted; and the\nreason(s) for declining if the offer was declined.\n(d)\nEffect of Replacement Employment on Non-Competition Period Payments. If Employee is\ndenied a specific employment, consulting or other such position with a Competing Organization solely because of the\nrestrictive covenant provisions of Section 7 of this Agreement but obtains other work for compensation, and the monthly\ncompensation (including base pay, commissions, incentive compensation, bonuses, fees and other compensation) for the\nreplacement work is less than Employee's monthly base pay at the time of Employee's separation from employment with\nCompany, Company agrees to pay Employee the difference for each such month through the end of the Restricted\nPeriod, again upon expiration of any severance benefits which Employee was offered and provided Employee satisfies\nall conditions stated herein, with monthly payments not to exceed the amount to which Employee is entitled under\nsubsection (a) of this Section 9. Employee shall submit to Company payroll records and/or any other records reasonably\nrequested by Company showing all compensation received by Employee from the replacement work as a condition of\nCompany's payment of Non-Competition Period Payments covering any period of time when Employee performs work\nfor compensation.\n(e)\nCompany's Right To Provide Release of Obligations in Lieu of Non-Competition Period\nPayments. Notwithstanding any of the foregoing provisions of this Section 9, Company reserves the right to release\nEmployee from Employee's obligations under Section 7 of this Agreement at any time during the Restricted Period, in\nfull or in sufficient part to allow Employee to accept an opportunity that would otherwise be prohibited under this\nAgreement, at which time Company's payment obligations under this Section 9 shall cease immediately and Employee\nshall not be entitled to any further such payments or compensation.\n10.\nSeverability, Modification of Restrictions. The covenants and restrictions in this Agreement are\nseparate and divisible, and to the extent any clause, portion or section of this Agreement is determined to be\nunenforceable or invalid for any reason, Company and Employee\n-8-\nacknowledge and agree that such unenforceability or invalidity shall not affect the enforceability or validity of the\nremainder of the Agreement. If any particular covenant, provision or clause of this Agreement is determined to be\nunreasonable or unenforceable for any reason, including, without limitation, temporal duration, scope of prohibited\nactivity, and/or scope of geographic area, Company and Employee acknowledge and agree that such covenant, provision\nor clause shall automatically be deemed reformed to have the closest effect permitted by applicable law to the original\nform and shall be given effect and enforced as so reformed to whatever extent would be reasonable and enforceable\nunder applicable law. The parties agree that any court interpreting the provisions of this Agreement shall have the\nauthority, if necessary, to reform any such provision to make it enforceable under applicable law.\n11.\nRemedies. Employee acknowledges that a breach or threatened breach by Employee of this\nAgreement\nwill\ngive\nrise\nto\nirreparable\ninjury\nto\nCompany\nand\nthat\nmoney\ndamages\nwill\nnot\nbe\nadequate\nrelief\nfor\nsuch\ninjury. Accordingly, Employee agrees that Company shall be entitled to obtain injunctive relief, including, but not\nlimited to, temporary restraining orders, preliminary injunctions and/or permanent injunctions, without having to post\nany bond or other security, to restrain or prohibit such breach or threatened breach, in addition to any other legal\nremedies which may be available. In addition to all other relief to which it shall be entitled, Company shall be entitled to\ncease all payments to which Employee would otherwise be entitled under Section 9 hereto; continue to enforce this\nAgreement; recover from Employee all payments made under Section 9 to the extent attributable to a time during which\nEmployee was in violation of the covenants for which payment was made; and recover from Employee all litigation\ncosts and attorneys' fees incurred by Company in any action or proceeding relating to this Agreement in which Company\nprevails in any respect, including, but not limited to, any action or proceeding in which Company seeks enforcement of\nthis Agreement or seeks relief from Employee's violation of this Agreement.\n12.\nSurvival of Obligations. Employee acknowledges and agrees that Employee's obligations under\nthis\nAgreement,\nincluding,\nwithout\nlimitation,\nEmployee's\nnon-disclosure\nand\nnon-competition\nobligations,\nshall\nsurvive\nthe termination of Employee's employment with Company, whether such termination is with or without cause and\nwhether it is voluntary or involuntary. Employee acknowledges and agrees that nothing in this Agreement alters the at-\nwill nature of Employee's employment and that either Company or Employee may terminate the employment\nrelationship at any time, with or without cause or notice. Employee further acknowledges and agrees\nthat: (a) Employee's non-disclosure, non-disparagement, non-solicitation and non-competition covenants set forth in\nSections 2 and 7 of this Agreement shall be construed as independen covenants and that no breach of any contractual or\nlegal duty by Company shall be held sufficient to excuse or terminate Employee's obligations or to preclude Company\nfrom obtaining injunctive relief or other remedies for Employee's violation or threatened violation of such covenants,\nand (b) the existence of any claim or cause of action by Employee against Company, whether predicated on this\nAgreement or otherwise, shall not constitute a defense to Company's enforcement of Employee's obligations under\nSections 2 and 7 of this Agreement.\n13.\nGoverning Law and Choice of Forum. This Agreement shall be construed and enforced in\naccordance with the laws of the State of Indiana, notwithstanding any state's choice-of-law rules to the contrary. The\nparties agree that any legal action relating to this Agreement\n-9-\nshall be commenced and maintained exclusively before the United States District Court for the Northern District of\nIndiana if jurisdiction permits, or otherwise before any appropriate state court located in Kosciusko County,\nIndiana. The parties hereby submit to the jurisdiction of such courts and waive any right to challenge or otherwise object\nto personal jurisdiction or venue, in any action commenced or maintained in such courts. Language translations aside,\nthe English version shall govern.\n14.\nEnforcement. The parties agree that Zimmer, Inc., Zimmer US, Inc. and/or any or each of their\naffiliates, parents, or direct or indirect subsidiaries (including but not limited to Biomet, Inc. and its direct or indirect\nsubsidiaries), as well as any successor-in-interest to Zimmer, Inc., Zimmer US, Inc. and/or to any of their direct or\nindirect subsidiaries, affiliates, or parents are express and intended parties to and beneficiaries to this Agreement, with\nfull rights to enforce this Agreement independently or in conjunction with each other.\n15.\nSuccessors and Assigns. Company shall have the right to assign this Agreement, and, accordingly,\nthis Agreement shall inure to the benefit of, and may be enforced by, any and all successors and assigns of Company,\nincluding without limitation by asset assignment, stock sale, merger, consolidation or other corporate reorganization, and\nshall be binding on Employee. The services to be provided by Employee to Company are personal to\nEmployee,\nand\nEmployee shall not have the right to assign Employee's duties under this Agreement.\n16.\nModification. This Agreement may not be amended, supplemented, or modified except by a written\ndocument signed by both Employee and a duly authorized officer of Company.\n17.\nNo Waiver. The failure of Company to insist in any one or more instances upon performance of any\nprovision of this Agreement or to pursue its rights hereunder shall not be construed as a waiver of any such provisions or\nthe relinquishment of any such rights.\n18.\nCounterparts. This Agreement may be executed in counterparts, each of which shall be deemed an\noriginal, but both of which when taken together will constitute one and the same agreement.\n19.\nEntire Agreement. This Agreement, including Recitals, constitutes the entire agreement of the\nparties with respect to the subjects specifically addressed herein, and supersedes any prior agreements, understandings,\nor representations, oral or written, on the subjects addressed herein. Notwithstanding the foregoing, to the extent the\nemployee has an existing non-competition, confidentiality, and/or non-solicitation agreement in favor of Company and\nhas breached or violated the terms thereof, Company may continue to enforce its rights and remedies under and pursuant\nto such existing agreement.\n-10-\nEmployee's signature below indicates that Employee has read the entire Agreement, understands what Employee\nis\nsigning, and is signing the Agreement voluntarily. Employee agrees that Company advised Employee to consult with an\nattorney prior to signing the Agreement.\n"EMPLOYEE"\n(Employee Signature)\nPrinted Name:\nDate:\n"COMPANY"\nBy:\nPrinted Name:\nTitle:\nDate:\n-11-	EX-10.12 4 zbh-ex1012_349.htm EX-10.12\nExhibit 10.12\nCORPORATE EXECUTIVE CONFIDENTIALITY, NON-COMPETITION\nAND NON-SOLICITATION AGREEMENT\nThis Corporate Executive Confidentiality, Non-Competition and Non-Solicitation Agreement (“Agreement”) is made by\nand between Zimmer, Inc., a corporation having its principal headquarters in Warsaw, Indiana, and\n______________________________\n(“Employee”).\nRecitals\nA.\nFor purposes of this Agreement, the term "Company" means Zimmer, Inc., Zimmer US, Inc. and/or\nany or each of their affiliates, parents, or direct or indirect subsidiaries (including but not limited to Biomet, Inc. and its\naffiliates, parents or direct or indirect subsidiaries), as well as any successor-in-interest to Zimmer, Inc., Zimmer US, Inc.\nand/or to any of their direct or indirect subsidiaries, affiliates, or parents.\nB.\nEmployee is employed or is being employed by Company in an executive and/or high-level\nmanagerial capacity in which Employee has or will have extensive access to trade secrets and confidential information of\nCompany, and/or is being offered certain equity incentives.\nC.\nCompany has offered Employee employment and/or other valuable consideration, which may include\nwithout limitation such consideration as a job promotion, an increase in compensation, and/or an equity award,\ncontingent upon Employee's entering into this Agreement.\nAgreement\nNOW, THEREFORE, in consideration of the foregoing recitals, the promises contained herein and other good\nand valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Company and Employee\nagree to be legally bound as follows:\n1.\nAcknowledgements. Employee acknowledges that Company is engaged in the highly competitive\nbusiness of the development, manufacture, distribution, and sale of orthopedic- and musculoskeletal-related medical and\nsurgical devices, products, and services, including but not limited to hip, knee, trauma, extremities, craniomaxillofacial,\nthoracic, dental rehabilitation, spine, microfixation, bone healing, bone cement, surgical, sports medicine, orthopedic\ndiagnostic (including unique diagnostic products developed for or by Company) and/or biologics devices, products,\nprocesses and services, and that Employee serves or will serve in an executive and/or high-level managerial capacity for\nCompany and in that capacity Employee has and/or will have access to and has and/or will gain knowledge of substantial\ntrade secrets and confidential information of Company.\n2.\nNon-Disclosure and Ownership of Confidential Information. Employee acknowledges that\nConfidential Information is a valuable, special, and unique asset of Company, and solely the property of Company, and\nagrees to the following; provided, however, that this policy does not, in any manner, prevent employees from filing a\ncomplaint with, providing information to, or participating in an investigation conducted by, the Securities and Exchange\nCommission, the United States Equal Opportunity Commission or any other governmental or law enforcement agency.\n(a)\nConfidential Information Defined. The term “Confidential Information” includes, but is not\nlimited to, any and all of Company’s trade secrets, confidential and proprietary information and all other information and\ndata of Company that is not generally known to the public or other third parties who could derive economic value from\nits use or disclosure. Confidential Information includes, without limitation, technical information such as product\nspecifications, compounds, formulas, improvements, discoveries, developments, designs, inventions, techniques, new\nproducts and surgical training methods, and research and development information; confidential business methods and\nprocesses; business plans and strategies; marketing plans and strategies; non-public financial information including\nbudgets, sales data, sales forecasts, sales quotas, and information regarding profits or losses; office optimization and\nlogistics information; information pertaining to current and prospective customers; information pertaining to distributors\nand sales structures; pricing information; discount schedules; costing information; personnel information; compensation\nstructure, schedules and plans; and information about current and prospective products or services, whether or not\nreduced to writing or other tangible medium of expression, including work product created by Employee in rendering\nservices for Company.\n(b)\nNon-Disclosure of Confidential Information. During Employee's employment with Company\nand thereafter, Employee will not disclose, transfer, or use (or seek to induce others to disclose, transfer, or use) any\nConfidential Information for any purpose other than( i) disclosure to authorized employees and agents of Company who\nare bound to maintain the confidentiality of the Confidential Information; (ii) for authorized purposes during the course\nof Employee’s employment in furtherance of Company’s business; and/or (iii) as specifically allowed or required under\napplicable law. Employee's non-disclosure obligations shall continue as long as the Confidential Information remains\nconfidential and shall not apply to information that becomes generally known to the public through no fault or action of\nEmployee. The Federal Defend Trade Secrets Act provides that individuals may not be held criminally or civilly liable\nunder any federal or state trade secret law for the disclosure of a trade secret that is made (a) in confidence to a federal,\nstate or local government official, either directly or indirectly, or to an attorney if such disclosure is made solely for the\npurpose of reporting or investigating a suspected violation of law or for pursuing an anti-retaliation lawsuit; or (b) in a\ncomplaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal and the individual\ndoes not disclose the trade secret except pursuant to a court order.\n(c)\nProtection of Confidential Information. Employee will notify Company in writing of any\ncircumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. Employee\nwill use Employee's best efforts to protect Confidential Information from unauthorized disclosure, transfer, or\nuse. Employee will implement and abide by all procedures adopted by Company to prevent unauthorized disclosure,\ntransfer, or use of Confidential Information. Notwithstanding the above requirements, nothing in this Agreement shall\nrestrict Employee's right to make disclosures specifically allowed or required under applicable law.\n-2-\n3.\nOwnership of Intellectual Property.\n(a)\nInvention Defined. The term “Invention” includes, but is not limited to ideas, programs,\nprocesses, systems, intellectual property, works of authorship, copyrightable materials, discoveries, and/or improvements\nwhich Employee discovers, invents, originates, develops, makes, authors, or conceives alone or in conjunction with\nothers during Employee’s employment with Company and/or within six (6) months after Employee’s employment ends\nwhich relate to Company’s present or future business. An Invention is covered by this Agreement regardless of whether\n(i) Employee conceived of the Invention in the scope of Employee’s employment; (ii) the Invention is patentable; or (iii)\nCompany takes any action to commercialize or develop the Invention.\n(b)\nOwnership of Inventions. Inventions are solely the property of Company. Employee agrees that\nby operation of law and/or the effect of this Agreement Employee does not have any rights, title, or interest in any\nInventions. Notwithstanding, Employee may be recognized as the inventor of an Invention without retaining any other\nrights associated therewith.\n(c)\nDisclosure and Assignment of Inventions. Employee hereby assigns to Company all right, title\nand interest Employee may have in any Inventions that are discovered, invented, originated, developed, made, authored,\nor conceived by Employee (whether alone or with others) during Employee’s employment with Company and/or within\nsix (6) months after Employee’s employment ends which relate to Company’s present or future business. Employee\nagrees to: (i) promptly disclose all such Inventions in writing to Company; (ii) keep complete and accurate records of all\nsuch Inventions, which records shall be Company property and shall be retained on Company premises; and (iii) execute\nsuch documents and do such other acts as may be necessary in the opinion of Company to establish and preserve\nCompany’s property rights in all such Inventions. This section shall not apply to any Invention for which no equipment,\nsupplies, facility or trade secret information of Company was used and which was developed entirely on Employee’s\nown time, and (1) which does not relate (a) directly to the business of Company, or (b) to Company’s actual or\ndemonstrably anticipated research or development, and (2) which does not result from any work performed by Employee\nfor Company.\n(d)\nWorks of Authorship. All written, graphic or recorded material and all other works of\nauthorship fixed in a tangible medium of expression made or created by Employee, solely or jointly with others, during\nEmployee’s employment with Company and relating to Company’s business, actual or contemplated, shall be the\nexclusive property of Company (collectively “Works”). Company will have the exclusive right to copyright such\nWorks. Employee agrees that if any Work created while employed by Company, whether or not created at the direction\nof Company, is copyrightable, such Work will be a “work made for hire,” as that term is defined in the copyright laws of\nthe United States. If, for any reason, any copyrightable Works created by Employee are excluded from that definition,\nEmployee hereby assigns and conveys to Company all right, title and interest (including any copyright and renewals) in\nsuch Works.\n(e)\nAttribution and Use of Works and Inventions; Waiver of Assertion of “Moral” Rights in\nInventions and Works. Employee agrees that Company and its licensees are not\n-3-\nrequired to designate Employee as author, inventor or developer of any Works or Inventions when distributed or\notherwise. Employee hereby waives, and agrees not to assert, any “moral” rights in any Inventions and\nWorks. Employee agrees that Company and its licensees shall have sole discretion with regard to how and for what\npurposes any Inventions or Works are used or distributed.\n(f)\nEmployee Cooperation in Establishment of Company Proprietary Rights. Employee will sign\ndocuments of assignment, declarations and other documents and take all other actions reasonably required by Company,\nat Company’s expense, to perfect and enforce any of its proprietary rights. In the event Company is unable, for any\nreason whatsoever, to secure Employee’s signature to any lawful or necessary documents required to apply for,\nprosecute, perfect, or assign any United States or foreign application for Letters Patent, trademark, copyright registration,\nor other filing to protect any Invention or Work, Employee hereby irrevocably designates and appoints Company and its\nduly authorized officers and agents as Employee’s agent and attorney in fact, to act for and on Employee’s behalf, to\nexecute and file any such application, registration or other filing, and to do all other lawfully permitted acts to further the\nprosecution, issuance or assignment of Letters Patent or other protections on such Inventions, or registrations for\ntrademark or copyright or other protections on such Works, with the same force and effect as if executed by Employee.\n4.\nReturn of Confidential Information and Company Property. Immediately upon termination of\nEmployee’s employment with Company, Employee shall return to Company all of Company’s property relating to\nCompany’s business, including without limitation all of Company’s property which is in the possession, custody, or\ncontrol of Employee such as Confidential Information, documents, hard copy files, copies of documents and electronic\ninformation/files, and equipment (e.g., computers and mobile phones).\n5.\nObligations to Other Entities or Persons. Employee warrants that Employee is not bound by the\nterms of a confidentiality agreement or any other legal obligation which would either preclude or limit Employee from\ndisclosing or using any of Employee’s ideas, inventions, discoveries or other information or otherwise fulfilling\nEmployee’s obligations to Company. While employed by Company, Employee shall not disclose or use any confidential\ninformation belonging to another entity or other person.\n6.\nConflict of Interest and Duty of Loyalty. During Employee’s employment with Company,\nEmployee shall not engage, directly or indirectly, in any activity, employment or business venture, whether or not for\nremuneration, that (i) is competitive with Company’s business; (ii) deprives or potentially could deprive Company of any\nbusiness opportunity; (iii) conflicts or potentially could conflict with Company’s business interests; or (iv) is otherwise\ndetrimental to Company, including but not limited to preparations to engage in any of the foregoing activities.\n-4-\n7.\nRestrictive Covenants. Employee agrees to, and covenants to comply with, each of the following\nseparate and divisible restrictions:\n(a)\nDefinitions.\n(1)\n“Competing Product” is defined as any implant, device, or medical product(s), service(s),\ninstrument(s) or supplies that is or are the same as, related to, or similar to any product, process or service that Company\nis researching, developing, manufacturing, distributing, selling and/or providing at the time of Employee’s separation\nfrom employment with Company (including, but not limited to, any product or service Company’s Hip, Knee, Trauma,\nExtremities, Craniomaxillofacial, Thoracic, Biologics, Surgical, Sports Medicine, Microfixation, Bone Healing, Bone\nCement, Orthopedic Diagnostic, Spine and/or Dental division is researching, developing, manufacturing, distributing,\nselling and/or providing at the time of Employee's separation from employment with Company).\n(2)\n“Competing Organization” is defined as any organization that researches, develops,\nmanufactures, markets, distributes and/or sells one or more Competing Products. A Competing Organization is\ndiversified if it operates multiple, independently operating business divisions, units, lines or segments some of which do\nnot research, develop, manufacture, market, distribute and/or sell any Competing Products.\n(3)\n“Prohibited Capacity” is defined as (a) any same or similar capacity to that held by\nEmployee at any time during Employee's last two (2) years of employment with Company; (b) any executive or\nmanagerial capacity; or (c) any capacity in which Employee’s knowledge of Confidential Information and/or Inventions\nwould render Employee’s assistance to a Competing Organization a competitive advantage.\n(4)\n“Restricted Geographic Area” is defined as all countries, territories, parishes, municipalities\nand states in which Company is doing business or is selling its products at the time of termination of Employee’s\nemployment with Company, including but not limited to every parish and municipality in the state of\nLouisiana. Employee acknowledges that this geographic scope is reasonable given Employee's position with Company,\nthe international scope of Company's business; and the fact that Employee could compete with Company from anywhere\nCompany does business.\n(5)\n“Restricted Period” is defined as the date Employee executes this Agreement, continuing\nthrough the eighteen (18) months after the Employee’s last day of employment with Company unless otherwise extended\nby Employee’s breach of this Agreement. The running time on the Restricted Period shall be suspended during any\nperiod in which Employee is in violation of any of the restrictive covenants set forth herein, and all restrictions shall\nautomatically be extended by the period Employee was in violation of any such restrictions.\n(6)\n“Customer” is defined as any person or entity with respect to whom, as of the date of\nEmployee’s separation from Company employment or at any time during the two years prior to such separation,\nCompany sold or provided any products and/or services.\n(7)\n“Active Prospect” is defined as any person or entity that Company individually and\nspecifically marketed to and/or held discussions with regarding the distribution\n-5-\nand/or sale of any of Company's products, processes or services at any time during the last six (6) months of Employee’s\nemployment with Company.\n(8)\n“Severance Benefit Period” is the period of time represented by the total amount of any\nseverance benefit offered to Employee (whether or not actually paid). By way of illustration, if Employee were offered a\nlump-sum severance benefit equivalent to ten (10) weeks of Employee’s final base pay upon termination of his or her\nemployment with the Company, Employee’s Severance Benefit Period would be 10 weeks, whether or not Employee\nactually fulfilled all requirements of receiving, and did receive, any portion of the severance benefit.\n(b)\nRestrictive Covenants. During the Restricted Period, Employee agrees to be bound by each of\nthe following independent and divisible restrictions:\n(1)\nCovenant Not to Compete.\n(A)\nEmployee will not, within the Restricted Geographic Area, be employed by, work\nfor, consult with, provide services to, or lend assistance to any Competing Organization in a Prohibited Capacity.\n(B)\nEmployee may be employed by, work for, consult with, provide services to, or\nlend assistance to a Competing Organization provided that: (i) the Competing Organization’s business is diversified;\n(ii) the part of the Competing Organization's business with which Employee will be affiliated would not, evaluated on a\nstand-alone basis, be a Competing Organization; (iii) Employee’s affiliation with the Competing Organization does not\ninvolve any Competing Products; (iv) Employee provides Company a written description of Employee’s anticipated\nactivities on behalf of the Competing Organization which includes, without limitation, an assurance satisfactory to\nCompany that Employee’s affiliation with the Competing Organization does not constitute a Prohibited Capacity; and (v)\nEmployee's affiliation with the Competing Organization does not constitute a competitive disadvantage to Company.\n(2)\nCovenant Not to Solicit Customers or Active Prospects. Employee will not, directly or\nindirectly, (i) provide, sell, or market; (ii) assist in the provision, selling or marketing of; or (iii) attempt to provide, sell\nor market any Competing Products to any of Company’s Customers or Active Prospects located in the Restricted\nGeographic Area.\n(3)\nCovenant Not to Interfere With Business Relationships. Employee will not, within the\nRestricted Geographic Area, urge, induce or seek to induce any of Company’s independent contractors, subcontractors,\ndistributors, brokers, consultants, sales representatives, customers, vendors, suppliers or any other person or entity with\nwhom Company has a business relationship at the time of Employee's separation from Company employment to\nterminate its or their relationship with, or representation of, Company or to cancel, withdraw, reduce, limit or in any\nmanner modify any such person’s or entity’s business with, or representation of, Company\n(4)\nCovenant Not to Solicit Company Employees. Employee will not employ, solicit for\nemployment, or advise any other person or entity to employ or solicit for employment, any individual employed by\nCompany at the time of Employee's separation from Company\n-6-\nemployment, or otherwise directly or indirectly induce or entice any such employee to leave his/her employment with\nCompany.\n(5)\nCovenant Not to Disparage Company. Employee will not make or publish any disparaging\nor derogatory statements about Company; about Company's products, processes, or services; or about Company's past,\npresent and future officers, directors, employees, attorneys and agents. Disparaging or derogatory statements include,\nbut are not limited to, negative statements regarding Company’s business or other practices; provided, however, nothing\nherein shall prohibit Employee from providing any information as may be compelled by law or legal process.\n8.\nReasonableness of Terms. Employee acknowledges and agrees that the restrictive covenants\ncontained in this Agreement restrict Employee from engaging in activities for a competitive purpose and are reasonably\nnecessary to protect Company’s legitimate interests in Confidential Information, Inventions, and goodwill. Additionally,\nEmployee acknowledges and agrees that the restrictive covenants are reasonable in all respects, including, but not\nlimited to, temporal duration, scope of prohibited activities and geographic area. Employee further acknowledges and\nagrees that the restrictive covenants set forth in this Agreement will not pose unreasonable hardship on Employee and\nthat Employee will have a reasonable opportunity to earn an equivalent livelihood without violating any provision of this\nAgreement.\n9.\nNon-Competition Period Payments.\n(a)\nEligibility and Amount. In the event of Employee’s involuntary separation from employment\nwith the Company for a reason that renders Employee eligible for benefits under the terms of the Company’s Severance\nPlan, then to the extent Employee is denied, solely because of the restrictive covenant provisions of Section 7 of this\nAgreement, a specific full-time or part-time employment, consulting, or other position that would otherwise be offered to\nEmployee by a Competing Organization, and provided Employee satisfies all conditions stated herein, then upon\nexpiration of Employee’s Severance Benefit Period, Company will make monthly payments to Employee for each month\nEmployee remains unemployed through the end of the Restricted Period. These monthly payments shall equal the lesser\nof Employee’s monthly base pay at the time of Employee's separation from Company employment (exclusive of bonus\nand other extra compensation and any other employee benefits) or the monthly compensation that would have been\noffered to Employee by the Competing Organization. This Section 9 will not apply if Employee leaves employment\nwith the Company voluntarily or if Company terminates Employee’s employment for a reason or reasons that render\nEmployee ineligible for benefits under terms of the Company’s Severance Plan.\n(b)\nVerification of Eligibility for Non-Competition Period Payments. To qualify for payments under\nthis Section 9, Employee must provide Company detailed written documentation supporting eligibility for payment,\nincluding, at a minimum, (i) the name and location of the Competing Organization that would have employed Employee\nbut for the provisions of Section 7 of this Agreement, (ii) the title, nature, and detailed job responsibilities of the\nemployment position with the Competing Organization that Employee was denied, (iii) the date Employee was denied\nthe employment position, and (iv) the name and contact information of a managerial employee at the Competing\nOrganization who has sufficient authority to confirm that Employee\n-7-\nwas denied this specific employment position with the Competing Organization solely because Employee is subject to\nthe provisions of Section 7 of this Agreement (the “eligibility documentation”). Upon receipt of the eligibility\ndocumentation, Company will determine eligibility for payment and, if eligibility is established, payments will\ncommence as of the date of Company’s receipt of the eligibility documentation or the date Employee’s Severance\nBenefit Period ends, whichever is later.\n(c)\nObligation to Pursue Replacement Employment and Verification of Continued Eligibility for\nNon-Competition Period Payments. Employee is obligated to diligently seek and pursue replacement employment that\ndoes not violate Section 7 of this Agreement ("replacement employment") during any period in which Employee seeks\nand/or accepts payment from Company under this Section 9. After eligibility for non-competition period payments is\nestablished, Employee will, on or before the 15th day of each month of eligibility for continued payments, submit to\nCompany a written statement (i) identifying by name and address all prospective employers with whom Employee has\napplied or inquired about employment; (ii) identifying positions sought with each listed employer and specific actions\ntaken in seeking each position; (iii) describing all other efforts made to obtain replacement employment; and\n(iv) describing any offers of employment received, including the name of the employer; the nature, title, and\ncompensation terms of the position offered; the actual or anticipated start date if the offer has been accepted; and the\nreason(s) for declining if the offer was declined.\n(d)\nEffect of Replacement Employment on Non-Competition Period Payments. If Employee is\ndenied a specific employment, consulting or other such position with a Competing Organization solely because of the\nrestrictive covenant provisions of Section 7 of this Agreement but obtains other work for compensation, and the monthly\ncompensation (including base pay, commissions, incentive compensation, bonuses, fees and other compensation) for the\nreplacement work is less than Employee’s monthly base pay at the time of Employee’s separation from employment with\nCompany, Company agrees to pay Employee the difference for each such month through the end of the Restricted\nPeriod, again upon expiration of any severance benefits which Employee was offered and provided Employee satisfies\nall conditions stated herein, with monthly payments not to exceed the amount to which Employee is entitled under\nsubsection (a) of this Section 9. Employee shall submit to Company payroll records and/or any other records reasonably\nrequested by Company showing all compensation received by Employee from the replacement work as a condition of\nCompany's payment of Non-Competition Period Payments covering any period of time when Employee performs work\nfor compensation.\n(e)\nCompany's Right To Provide Release of Obligations in Lieu of Non-Competition Period\nPayments. Notwithstanding any of the foregoing provisions of this Section 9, Company reserves the right to release\nEmployee from Employee’s obligations under Section 7 of this Agreement at any time during the Restricted Period, in\nfull or in sufficient part to allow Employee to accept an opportunity that would otherwise be prohibited under this\nAgreement, at which time Company’s payment obligations under this Section 9 shall cease immediately and Employee\nshall not be entitled to any further such payments or compensation.\n10.\nSeverability, Modification of Restrictions. The covenants and restrictions in this Agreement are\nseparate and divisible, and to the extent any clause, portion or section of this Agreement is determined to be\nunenforceable or invalid for any reason, Company and Employee\n-8-\nacknowledge and agree that such unenforceability or invalidity shall not affect the enforceability or validity of the\nremainder of the Agreement. If any particular covenant, provision or clause of this Agreement is determined to be\nunreasonable or unenforceable for any reason, including, without limitation, temporal duration, scope of prohibited\nactivity, and/or scope of geographic area, Company and Employee acknowledge and agree that such covenant, provision\nor clause shall automatically be deemed reformed to have the closest effect permitted by applicable law to the original\nform and shall be given effect and enforced as so reformed to whatever extent would be reasonable and enforceable\nunder applicable law. The parties agree that any court interpreting the provisions of this Agreement shall have the\nauthority, if necessary, to reform any such provision to make it enforceable under applicable law.\n11.\nRemedies. Employee acknowledges that a breach or threatened breach by Employee of this\nAgreement will give rise to irreparable injury to Company and that money damages will not be adequate relief for such\ninjury. Accordingly, Employee agrees that Company shall be entitled to obtain injunctive relief, including, but not\nlimited to, temporary restraining orders, preliminary injunctions and/or permanent injunctions, without having to post\nany bond or other security, to restrain or prohibit such breach or threatened breach, in addition to any other legal\nremedies which may be available. In addition to all other relief to which it shall be entitled, Company shall be entitled to\ncease all payments to which Employee would otherwise be entitled under Section 9 hereto; continue to enforce this\nAgreement; recover from Employee all payments made under Section 9 to the extent attributable to a time during which\nEmployee was in violation of the covenants for which payment was made; and recover from Employee all litigation\ncosts and attorneys’ fees incurred by Company in any action or proceeding relating to this Agreement in which Company\nprevails in any respect, including, but not limited to, any action or proceeding in which Company seeks enforcement of\nthis Agreement or seeks relief from Employee’s violation of this Agreement.\n12.\nSurvival of Obligations. Employee acknowledges and agrees that Employee’s obligations under\nthis Agreement, including, without limitation, Employee’s non-disclosure and non-competition obligations, shall survive\nthe termination of Employee’s employment with Company, whether such termination is with or without cause and\nwhether it is voluntary or involuntary. Employee acknowledges and agrees that nothing in this Agreement alters the at-\nwill nature of Employee's employment and that either Company or Employee may terminate the employment\nrelationship at any time, with or without cause or notice. Employee further acknowledges and agrees\nthat: (a) Employee’s non-disclosure, non-disparagement, non-solicitation and non-competition covenants set forth in\nSections 2 and 7 of this Agreement shall be construed as independent covenants and that no breach of any contractual or\nlegal duty by Company shall be held sufficient to excuse or terminate Employee’s obligations or to preclude Company\nfrom obtaining injunctive relief or other remedies for Employee’s violation or threatened violation of such covenants,\nand (b) the existence of any claim or cause of action by Employee against Company, whether predicated on this\nAgreement or otherwise, shall not constitute a defense to Company's enforcement of Employee's obligations under\nSections 2 and 7 of this Agreement.\n13.\nGoverning Law and Choice of Forum. This Agreement shall be construed and enforced in\naccordance with the laws of the State of Indiana, notwithstanding any state’s choice-of-law rules to the contrary. The\nparties agree that any legal action relating to this Agreement\n-9-\nshall be commenced and maintained exclusively before the United States District Court for the Northern District of\nIndiana if jurisdiction permits, or otherwise before any appropriate state court located in Kosciusko County,\nIndiana. The parties hereby submit to the jurisdiction of such courts and waive any right to challenge or otherwise object\nto personal jurisdiction or venue, in any action commenced or maintained in such courts. Language translations aside,\nthe English version shall govern.\n14.\nEnforcement. The parties agree that Zimmer, Inc., Zimmer US, Inc. and/or any or each of their\naffiliates, parents, or direct or indirect subsidiaries (including but not limited to Biomet, Inc. and its direct or indirect\nsubsidiaries), as well as any successor-in-interest to Zimmer, Inc., Zimmer US, Inc. and/or to any of their direct or\nindirect subsidiaries, affiliates, or parents are express and intended parties to and beneficiaries to this Agreement, with\nfull rights to enforce this Agreement independently or in conjunction with each other.\n15.\nSuccessors and Assigns. Company shall have the right to assign this Agreement, and, accordingly,\nthis Agreement shall inure to the benefit of, and may be enforced by, any and all successors and assigns of Company,\nincluding without limitation by asset assignment, stock sale, merger, consolidation or other corporate reorganization, and\nshall be binding on Employee. The services to be provided by Employee to Company are personal to Employee, and\nEmployee shall not have the right to assign Employee’s duties under this Agreement.\n16.\nModification. This Agreement may not be amended, supplemented, or modified except by a written\ndocument signed by both Employee and a duly authorized officer of Company.\n17.\nNo Waiver. The failure of Company to insist in any one or more instances upon performance of any\nprovision of this Agreement or to pursue its rights hereunder shall not be construed as a waiver of any such provisions or\nthe relinquishment of any such rights.\n18.\nCounterparts. This Agreement may be executed in counterparts, each of which shall be deemed an\noriginal, but both of which when taken together will constitute one and the same agreement.\n19.\nEntire Agreement. This Agreement, including Recitals, constitutes the entire agreement of the\nparties with respect to the subjects specifically addressed herein, and supersedes any prior agreements, understandings,\nor representations, oral or written, on the subjects addressed herein. Notwithstanding the foregoing, to the extent the\nemployee has an existing non-competition, confidentiality, and/or non-solicitation agreement in favor of Company and\nhas breached or violated the terms thereof, Company may continue to enforce its rights and remedies under and pursuant\nto such existing agreement.\n- 10-\nEmployee’s signature below indicates that Employee has read the entire Agreement, understands what Employee is\nsigning, and is signing the Agreement voluntarily. Employee agrees that Company advised Employee to consult with an\nattorney prior to signing the Agreement.\n“EMPLOYEE”\n(Employee Signature)\nPrinted Name:\nDate:\n“COMPANY”\nBy:_______________________________________\nPrinted Name: _____________________________\nTitle: _____________________________________\nDate: _____________________________________\n- 11-
08dca3b236c9f5b6b03b3e546e4daeda.pdf	effective_date jurisdiction party term	EX-99.(E)(4) 4 p75864exv99wxeyx4y.htm EXHIBIT 99.(E)(4)\nExhibit (e)(4)\nNONDISCLOSURE AGREEMENT\nTHIS NONDISCLOSURE AGREEMENT (this “Agreement”), dated as of March 28, 2007, is made by and between Motive, Inc., a Delaware corporation, with a\nprincipal place of business at 12515 Research Boulevard, Building 5, Austin, Texas 78759 USA (hereinafter “Motive”) and Alcatel-Lucent, a a Societe Anonyme organized\nunder the laws of the Republic of France, with a principal office at 54 rue La Boetie, 75008 Paris, France (hereinafter “Alcatel Lucent”).\nRECITALS\nWHEREAS, Motive and Alcatel Lucent (jointly, the “Parties” and each individually, a “Party”) desire to enter into discussions related to a possible business\ncombination (the “Possible Transaction”), and these discussions will of necessity involve the disclosure by one Party (the “Disclosing Party”) to the other Party (the\n“ Receiving Party”) of confidential and proprietary information; and\nWHEREAS, the Parties desire to (i) keep their discussions and the nature and scope thereof confidential; and (ii) reach an understanding with respect to the disclosure\nof such information and the confidentiality of the discussions in general;\nNOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, the parties hereto agree as follows:\n1. Definitions. The following terms shall have the meanings set forth below:\n1.1. “ Confidential Information” includes all non-public information, whether written or oral (whatever the form or storage medium), or gathered by inspection,\nor acquired, directly or indirectly, by one Party or its Representatives from the other Party or its Representatives in connection with a Possible Transaction, regardless\nof whether such information is specifically identified as “confidential.” The term “Confidential Information” does not include information which (i) was known to the\nReceiving Party or its Representatives or was in its or any of its Representatives’ possession prior to the date of its disclosure pursuant to this Agreement (except for\ninformation which was previously disclosed to the Receiving Party or its Representatives under an obligation of confidentiality to the Disclosing Party or its\nRepresentatives and which continues to remain subject to those confidentiality obligations); (ii) is or becomes generally available to the public other than through an\nunauthorized disclosure by the Receiving Party or its Representatives in violation of this Agreement; (iii) becomes available to the Receiving Party or its\nRepresentatives from a source other than the Disclosing Party or its Representatives, provided that such source is not, to the Receiving Party’s knowledge, prohibited\nfrom transmitting such Confidential Information to the Receiving Party by a contractual, legal or fiduciary obligation to the Disclosing Party or its Representatives; or\n(iv) is independently developed by the Receiving Party or any of its Representatives as demonstrated by the written records of such Party or Representatives which\nhave not had access to the other Party’s Confidential Information.\n1.2. “ Person”shall be broadly interpreted to include, without limitation, any individual, corporation, company, group, partnership, limited liability company or\nother entity.\n1.3. “Representatives” means a Party’s affiliates and its and their respective directors, officers, employees, agents or representatives, including, without\nlimitation, its and their respective attorneys, accountants, consultants and financial advisors.\n1.4. “Residuals” means technological information and all ideas, concepts, and understandings related thereto that would be inadvertently retained in non-\ntangible form in the unaided memory of an ordinary Person unless such Person intentionally memorized such technological information, ideas, concepts and\nunderstandings for the purpose of retaining and subsequently using or disclosing it for purposes other than as authorized by this Agreement.\n2. Confidential Information.\n2.1. Each Party recognizes and acknowledges the value of the Confidential Information and the damage that could result if the Confidential Information were used or\ndisclosed except as authorized by this Agreement. Except as otherwise required by applicable law or regulatory authority, each Party agrees to keep confidential and not\ndisclose, and cause its Representatives to keep confidential and not disclose, to any Person the Confidential Information it or its Representatives receives from the other Party\nor its Representatives without the Disclosing Party’s prior written consent, except as provided below. The Receiving Party or its Representatives shall be entitled to disclose\nthe Confidential Information of the Disclosing Party and provide copies of the same, without the\nDisclosing Party’s prior written consent, to those Representatives of the Receiving Party who need to know such Confidential Information solely for the purpose of evaluating\nthe Possible Transaction. The Receiving Party shall be responsible for any violations of any provision of this Agreement caused by any of the Receiving Party’s\nRepresentatives.\n2.2. The Receiving Party acknowledges that the Evaluation Material is being furnished to the Receiving Party in consideration of the Receiving Party’s agreement that\nit will not propose to the Disclosing Party or any other person any transaction between the Receiving Party and the Disclosing Party and/or its security holders or involving\nany of its securities or security holders unless the Disclosing Party shall have requested in writing that the Receiving Party make such a proposal, and that the Receiving Party\nwill not acquire, or assist, advise or encourage any other persons in acquiring, directly or indirectly, control of the Disclosing Party or any of the Disclosing Party’s securities,\nbusinesses or assets for a period of two (2) years from the date of this Agreement unless the Disclosing Party shall have consented in advance in writing to any such action.\n2.3 The Receiving Party agrees that it will not use the Evaluation Material in any way directly or indirectly detrimental to the Disclosing Party. In particular, the\nReceiving Party agrees that it and its Representatives will not knowingly, as a result of knowledge or information obtained from the Evaluation Material or otherwise in\nconnection with the Possible Transaction, directly or indirectly: (i) solicit, divert or attempt to solicit or divert any business or customer of the Disclosing Party or any of its\naffiliates; nor (ii) solicit, the employment of, employ, divert or attempt any of the foregoing with respect to, any employee of the Disclosing Party or any of its affiliates\n3. Use of Confidential Information for Evaluation; Disclosure. Neither the Receiving Party nor any of its Representatives shall use the Confidential Information for\nany purpose, other than evaluation of the Possible Transaction. Each Party hereby acknowledges that it is aware, and that it will advise its Representatives who are informed\nas to the matters which are the subject of this Agreement, that United States securities laws prohibit any person who has received from an issuer material, non-public\ninformation concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to\nany other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. The restrictions on disclosure and use\nof Confidential Information in this Agreement shall extend until the earlier of (a) the expiration of the period set forth in Section 14 of this Agreement, (b) the Parties’ entry\ninto a separate, subsequent agreement that contains confidentiality and non-disclosure provisions that supersede this Agreement with respect to the Confidential Information,\nand (c) such time, if ever, the Confidential Information becomes publicly available (otherwise than through a breach of this Agreement). Except to the extent the Receiving\nParty’s legal counsel advises the Receiving Party that disclosure is required by applicable law or regulatory authority, without the prior written consent of the Disclosing Party,\nthe Receiving Party will not, and will direct the Receiving Party’s Representatives not to, disclose to any other Person that such Confidential Information has been requested\nor made available, that discussions or negotiations are taking place concerning the Possible Transaction, or any of the terms, conditions or other facts with respect to the\nPossible Transaction, including the status thereof, or the term of this Agreement.\n4. Requested Disclosure of Confidentialdential Information.\n4.1 In the event that a Receiving Party or anyone to whom the Receiving Party transmits such Confidential Information pursuant to this Agreement is legally requested\n(by oral questions, interrogatories, request for information or documents, subpoena, civil investigative demand or similar process) or otherwise required to disclose any\nConfidential Information of a Disclosing Party, the Receiving Party will, except as prohibited by law, provide the Disclosing Party with written notice of same, prior to\ndisclosing such Confidential Information, so that the Disclosing Party may seek an appropriate protective order and/or waive compliance with this Agreement. If, in the\nabsence of a protective order or the receipt of a waiver hereunder, the Receiving Party is nonetheless legally compelled to disclose such Confidential Information, it may,\nwithout liability hereunder, furnish only that portion of such Confidential Information that is legally required and will exercise reasonable commercial efforts to obtain\nassurance that confidential treatment will be accorded such Confidential Information.\n4.2 If either Party, in its sole judgment, determines that it is required by applicable securities laws to make disclosures or public statements prohibited by Paragraph 3,\nthe Party may make such disclosures or public statements as may be required by securities laws. The Disclosing Party shall provide the other Party with prior notice to the\nextent practicable.\nPage2of5\n5. No License; Use. Neither the execution of this Agreement, nor the furnishing of any materials or Confidential Information hereunder, shall be construed as granting\nor conferring any rights to the other Party, either expressly or by implication, estoppel or otherwise, any license under any trademark, patent, copyright, technological\ninformation or other information, or other intellectual property; provided, however, that a Person who has used or seen materials or information pursuant to this Agreement\nshall not be precluded from using or disclosing Residuals. Nothing in this Agreement shall be construed to limit the Receiving Party’s right to independently develop\ninformation, materials, technology, or other products or services for itself or for others which may compete with the Disclosing Party so long as no disclosures or use in\nviolation of this Agreement has been made by the Receiving Party. Furthermore, nothing herein shall be construed as a representation or inference by Receiving Party that it\nhas not already developed, or may be in the process of developing, or may have already rightfully received or acquired from third parties, information similar to that\nConfidential Information to be disclosed by Disclosing Party hereunder.\n6. Ownership of Confidential Information. The Confidential information shall remain the property of the Disclosing Party, and the Disclosing Party may demand the\nreturn thereof at any time by written notice to the Receiving Party. Upon receipt of such notice, the Receiving Party shall (a) return to the Disclosing Party all Confidential\nInformation received by the Receiving Party or its Representatives from the Disclosing Party or its Representatives; and (b) destroy and cause each of its Representatives to\ndestroy each and every copy of any documents, drawings, data, memoranda and other written Materials together with any tapes and computer stored information or the parts\nthereof extracted from, embodying, containing or relating to such other party’s Confidential Information; provided, however, that one (1) copy of the Confidential Information\nmay be retained by the Receiving Party’s outside counsel on a confidential basis for purposes of verification. Any destruction pursuant to (b) in the preceding sentence shall be\npromptly confirmed in writing.\n7. No Warranties. The Receiving Party acknowledges that neither the Disclosing Party nor its Representatives makes any representation or warranty hereunder as to\nthe accuracy or completeness of any Confidential Information of the Disclosing Party or other information disclosed pursuant to this Agreement, each Party agrees to assume\nfull responsibility for all conclusions it derives from the Confidential Information. The Receiving Party agrees that neither the Disclosing Party nor its Representatives shall\nhave any liability hereunder to the Receiving Party or to any of the Receiving Party’s Representatives on any basis (including, without limitation, in contract, tort, under\nfederal or state securities laws, or otherwise) as a result of the use of such Confidential Information by the Receiving Party and the Receiving Party’s Representatives, it being\nunderstood that only those particular representations and warranties that may be made to the Receiving Party by the Disclosing Party or its affiliates in a definitive transaction\nagreement, when, as and if it is executed, and subject to such limitations and restrictions as may be specified in such definitive agreement, shall have any legal effect. Each\nParty and its respective Representatives hereby expressly disclaim any and all liability that may be based, in whole or in part, on errors or omissions in any Confidential\nInformation furnished hereunder. Unless and until a definitive agreement (the “Definitive Agreement”) with respect to a Possible Transaction has been executed and delivered\nby the Parties hereto, neither Party will be under any legal Obligation of any kind whatsoever to proceed with a Possible Transaction in whole or in part or to continue\ndiscussions relating thereto by virtue of this Agreement or any written or oral expression with respect to such a Possible Transaction by any of its Representatives. Prior to the\nexecution and delivery of the Definitive Agreement, either party may terminate discussions and negotiations regarding a Possible Transaction at any time, wit lout any liability\nwhatsoever, save for the obligations and duties specifically agreed to herein For the purposes hereof, the term “Definitive Agreement” does not include an executed letter of\nintent or any other preliminary written agreement nor does it include any written or verbal acceptance of an offer or bid.\n8. Notices. All notices, requests, consents, and other communications required or permitted hereunder shall be in writing and shall be personally delivered, mailed\nusing first-class, registered, or certified mail, postage prepaid, sent using a nationally recognized overnight courier to the following addresses or to such other address as the\nparties hereto may designate in writing:\nALCATEL LUCENT:\nALCATEL LUCENT\n600 Mountain Avenue\nPage3of5\nMurray Hill, NJ 07974\nAttn: John R. McCord\nwith a copy to:\nALCATEL LUCENT\n600 Mountain Avenue\nMurray Hill, NJ 07974\nAttn: General Counsel\nMOTIVE:\nMOTIVE, INC .\n12515 Research Boulevard\nBuilding 5\nAustin, TX 78759\nUSA\nAttn: General Counsel\nAll such notices, requests, consents and other communications shall be deemed to be properly given (a) if delivered personally to the address as provided in this\nSection, upon delivery, (b) if sent by mail, three (3) business days after the same has been deposited in mail, addressed and postage prepaid as set forth above and (c) if\ndelivered by overnight courier to the address as provided in this Section, on the earlier of the first business day following the date sent by such overnight courier or upon\nreceipt (in each case regardless of whether such notice, request or other communication is received by any other person to whom a copy of such notice is to be delivered\npursuant to this Section). Any Party from time to time may change its address, facsimile number or other information for the purpose of notices to that Party by giving notice\nspecifying such change to the other Party hereto.\n9. Severability. If any term or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms\nand provisions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.\n10. Entire Agreement: Amendments: Consent to Assignment. This Agreement comprises the full agreement between the Parties concerning the subject matter hereof.\nThis Agreement supersedes any prior understandings or agreements, regardless of form, between the Parties with respect to the subject matter hereof. No amendments,\nchanges or modifications may be made to this Agreement without the express written consent of each of the Parties hereto. This Agreement and the rights and obligations of a\nParty hereunder may not be assigned, directly, indirectly, by operation of law or otherwise, by either Part) without the prior written consent of the other Party.\n11. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts\nmade and to be performed therein, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law.\nThe state and federal courts located in New York shall have non-exclusive jurisdiction and venue over any dispute arising out of or relating to this Agreement, and each Party\nconsents to the personal jurisdiction and venue of these courts. Each Party waives any objection that it may now or hereafter have to the laying of venue of any such\nproceeding in any court in the state of New York and any claim that it may now or hereafter have that any such proceeding in any court in the state of New York has been\nbrought in an inconvenient forum.\n12. Remedies; Legal Fees. Each Party acknowledges that the other would be irreparably injured if the Receiving Party breaches any of its obligations under this\nAgreement. The Parties each agree that money damages would not be a sufficient remedy for any breach of this Agreement and that, in the event of a breach by a Party or its\nRepresentatives, the other Party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for such breach. Such remedies shall not be\ndeemed to be the exclusive remedies for a breach of this Agreement by a Party or its Representatives but shall be in addition to all other remedies available at law or equity to\nthe non-breaching Party. Each Party expressly agrees to waive the defense that a remedy in damages will be adequate, and agrees to use its reasonable best efforts to cause its\nRepresentatives to waive, any requirement for the securing or posting of any bond in connection with any such remedy. In the event of litigation relating to this Agreement, if\na court of competent jurisdiction determines that a Party or any of its Representatives have breached\nPage4of5\nthis Agreement, then such Party shall be liable and pay to the other Party the reasonable legal fees and expenses incurred by the other Party in connection with such litigation,\nincluding any appeal therefrom.\n13. Waiver. Each Party understands and agrees that no failure or delay by the other Party in exercising any right, power or privilege under this Agreement shall operate\nas a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise of any right, power or privilege hereunder.\n14. Term of Agreement. This Agreement and the obligations of the Parties hereunder shall terminate two years from the date hereof.\n15. Binding Effect. This Agreement shall benefit and be binding upon the Parties and their respective permitted successors and assigns.\n16. Construction. This Agreement has been negotiated by the Parties and their respective attorneys, and the language of this Agreement shall not be construed for or\nagainst either Party.\n17. Counterparts; Facsimile Signatures. This Agreement may be executed in two or more counterparts, each of which shall be binding as of the date first written\nabove. Each such copy shall be deemed an original, and it shall not be necessary in making proof of this Agreement to produce or account for more than one such counterpart.\nThis Agreement may be executed and delivered by facsimile and upon such delivery the facsimile signature will be deemed to have the same effect as if the original signature\nhad been delivered to the other party. The original signature copy shall be delivered to the other party by overnight courier. The failure to deliver the original signature copy\nand/or the nonreceipt of the original signature copy shall have no effect upon the binding and enforceable nature of this Agreement.\nIN WITNESS WHEREOF, this Nondisclosure Agreement has been executed by the parties hereto as of the day and year first written above.\nAlcatel-Lucent\nBy: /s/ Scott M. Ashby\nName: Scott M. Ashby\nTitle: DEPUTY CFO\nMotive, Inc.\na Delawara corporation\nBy: /s/ Jack Greenberg\nName: Jack Greenberg\nTitle: GENERAL COUNSEL & SECRETARY\nPage5of5	EX-99.(E)(4) 4 p75864exv99wxeyx4y.htm EXHIBIT 99.(E)(4)\nExhibit (e)(4)\nNONDISCLOSURE AGREEMENT\nTHIS NONDISCLOSURE AGREEMENT (this “Agreement”), dated as of March 28, 2007, is made by and between Motive, Inc., a Delaware corporation, with a\nprincipal place of business at 12515 Research Boulevard, Building 5, Austin, Texas 78759 USA (hereinafter “Motive”) and Alcatel-Lucent, a a Societe Anonyme organized\nunder the laws of the Republic of France, with a principal office at 54 rue La Boetie, 75008 Paris, France (hereinafter “Alcatel Lucent”).\nRECITALS\nWHEREAS, Motive and Alcatel Lucent (jointly, the “Parties” and each individually, a “Party”) desire to enter into discussions related to a possible business\ncombination (the “Possible Transaction), and these discussions will of necessity involve the disclosure by one Party (the “Disclosing Party”) to the other Party (the\n“Receiving Party”) of confidential and proprietary information; and\nWHEREAS, the Parties desire to (i) keep their discussions and the nature and scope thereof confidential; and (ii) reach an understanding with respect to the disclosure\nof such information and the confidentiality of the discussions in general;\nNOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, the parties hereto agree as follows:\n1. Definitions. The following terms shall have the meanings set forth below:\n \n1.1. “Confidential Information” includes all non-public information, whether written or oral (whatever the form or storage medium), or gathered by inspection,\nor acquired, directly or indirectly, by one Party or its Representatives from the other Party or its Representatives in connection with a Possible Transaction, regardless\nof whether such information is specifically identified as “confidential.” The term “Confidential Information” does not include information which (i) was known to the\nReceiving Party or its Representatives or was in its or any of its Representatives’ possession prior to the date of its disclosure pursuant to this Agreement (except for\ninformation which was previously disclosed to the Receiving Party or its Representatives under an obligation of confidentiality to the Disclosing Party or its\nRepresentatives and which continues to remain subject to those confidentiality obligations); (ii) is or becomes generally available to the public other than through an\nunauthorized disclosure by the Receiving Party or its Representatives in violation of this Agreement; (iii) becomes available to the Receiving Party or its\nRepresentatives from a source other than the Disclosing Party or its Representatives, provided that such source is not, to the Receiving Party’s knowledge, prohibited\nfrom transmitting such Confidential Information to the Receiving Party by a contractual, legal or fiduciary obligation to the Disclosing Party or its Representatives; or\n(iv) is independently developed by the Receiving Party or any of its Representatives as demonstrated by the written records of such Party or Representatives which\nhave not had access to the other Party’s Confidential Information.\n1.2. “Person”shall be broadly interpreted to include, without limitation, any individual, corporation, company, group, partnership, limited liability company or\nother entity.\n1.3. “Representatives” means a Party’s affiliates and its and their respective directors, officers, employees, agents or representatives, including, without\nlimitation, its and their respective attorneys, accountants, consultants and financial advisors.\n1.4. “Residuals” means technological information and all ideas, concepts, and understandings related thereto that would be inadvertently retained in non-\ntangible form in the unaided memory of an ordinary Person unless such Person intentionally memorized such technological information, ideas, concepts and\nunderstandings for the purpose of retaining and subsequently using or disclosing it for purposes other than as authorized by this Agreement.\n2. Confidential Information.\n2.1. Each Party recognizes and acknowledges the value of the Confidential Information and the damage that could result if the Confidential Information were used or\ndisclosed except as authorized by this Agreement. Except as otherwise required by applicable law or regulatory authority, each Party agrees to keep confidential and not\ndisclose, and cause its Representatives to keep confidential and not disclose, to any Person the Confidential Information it or its Representatives receives from the other Party\nor its Representatives without the Disclosing Party’s prior written consent, except as provided below. The Receiving Party or its Representatives shall be entitled to disclose\nthe Confidential Information of the Disclosing Party and provide copies of the same, without the\nDisclosing Party’s prior written consent, to those Representatives of the Receiving Party who need to know such Confidential Information solely for the purpose of evaluating\nthe Possible Transaction. The Receiving Party shall be responsible for any violations of any provision of this Agreement caused by any of the Receiving Party’s\nRepresentatives.\n2.2. The Receiving Party acknowledges that the Evaluation Material is being furnished to the Receiving Party in consideration of the Receiving Party’s agreement that\nit will not propose to the Disclosing Party or any other person any transaction between the Receiving Party and the Disclosing Party and/or its security holders or involving\nany of its securities or security holders unless the Disclosing Party shall have requested in writing that the Receiving Party make such a proposal, and that the Receiving Party\nwill not acquire, or assist, advise or encourage any other persons in acquiring, directly or indirectly, control of the Disclosing Party or any of the Disclosing Party’s securities,\nbusinesses or assets for a period of two (2) years from the date of this Agreement unless the Disclosing Party shall have consented in advance in writing to any such action.\n2.3 The Receiving Party agrees that it will not use the Evaluation Material in any way directly or indirectly detrimental to the Disclosing Party. In particular, the\nReceiving Party agrees that it and its Representatives will not knowingly, as a result of knowledge or information obtained from the Evaluation Material or otherwise in\nconnection with the Possible Transaction, directly or indirectly: (i) solicit, divert or attempt to solicit or divert any business or customer of the Disclosing Party or any of its\naffiliates; nor (ii) solicit, the employment of, employ, divert or attempt any of the foregoing with respect to, any employee of the Disclosing Party or any of its affiliates\n3. Use of Confidential Information for Evaluation; Disclosure. Neither the Receiving Party nor any of its Representatives shall use the Confidential Information for\nany purpose, other than evaluation of the Possible Transaction. Each Party hereby acknowledges that it is aware, and that it will advise its Representatives who are informed\nas to the matters which are the subject of this Agreement, that United States securities laws prohibit any person who has received from an issuer material, non-public\ninformation concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to\nany other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. The restrictions on disclosure and use\nof Confidential Information in this Agreement shall extend until the earlier of (a) the expiration of the period set forth in Section 14 of this Agreement, (b) the Parties’ entry\ninto a separate, subsequent agreement that contains confidentiality and non-disclosure provisions that supersede this Agreement with respect to the Confidential Information,\nand (c) such time, if ever, the Confidential Information becomes publicly available (otherwise than through a breach of this Agreement). Except to the extent the Receiving\nParty’s legal counsel advises the Receiving Party that disclosure is required by applicable law or regulatory authority, without the prior written consent of the Disclosing Party,\nthe Receiving Party will not, and will direct the Receiving Party’s Representatives not to, disclose to any other Person that such Confidential Information has been requested\nor made available, that discussions or negotiations are taking place concerning the Possible Transaction, or any of the terms, conditions or other facts with respect to the\nPossible Transaction, including the status thereof, or the term of this Agreement.\n4.1 In the event that a Receiving Party or anyone to whom the Receiving Party transmits such Confidential Information pursuant to this Agreement is legally requested\n(by oral questions, interrogatories, request for information or documents, subpoena, civil investigative demand or similar process) or otherwise required to disclose any\nConfidential Information of a Disclosing Party, the Receiving Party will, except as prohibited by law, provide the Disclosing Party with written notice of same, prior to\ndisclosing such Confidential Information, so that the Disclosing Party may seek an appropriate protective order and/or waive compliance with this Agreement. If, in the\nabsence of a protective order or the receipt of a waiver hereunder, the Receiving Party is nonetheless legally compelled to disclose such Confidential Information, it may,\nwithout liability hereunder, furnish only that portion of such Confidential Information that is legally required and will exercise reasonable commercial efforts to obtain\nassurance that confidential treatment will be accorded such Confidential Information.\n4.2 If either Party, in its sole judgment, determines that it is required by applicable securities laws to make disclosures or public statements prohibited by Paragraph 3,\nthe Party may make such disclosures or public statements as may be required by securities laws. The Disclosing Party shall provide the other Party with prior notice to the\nextent practicable.\nPage 2 of 5\n5. No License; Use. Neither the execution of this Agreement, nor the furnishing of any materials or Confidential Information hereunder, shall be construed as granting\nor conferring any rights to the other Party, either expressly or by implication, estoppel or otherwise, any license under any trademark, patent, copyright, technological\ninformation or other information, or other intellectual property; provided, however, that a Person who has used or seen materials or information pursuant to this Agreement\nshall not be precluded from using or disclosing Residuals. Nothing in this Agreement shall be construed to limit the Receiving Party’s right to independently develop\ninformation, materials, technology, or other products or services for itself or for others which may compete with the Disclosing Party so long as no disclosures or use in\nviolation of this Agreement has been made by the Receiving Party. Furthermore, nothing herein shall be construed as a representation or inference by Receiving Party that it\nhas not already developed, or may be in the process of developing, or may have already rightfully received or acquired from third parties, information similar to that\nConfidential Information to be disclosed by Disclosing Party hereunder.\nreturn thereof at any time by written notice to the Receiving Party. Upon receipt of such notice, the Receiving Party shall (a) return to the Disclosing Party all Confidential\nInformation received by the Receiving Party or its Representatives from the Disclosing Party or its Representatives; and (b) destroy and cause each of its Representatives to\ndestroy each and every copy of any documents, drawings, data, memoranda and other written Materials together with any tapes and computer stored information or the parts\nthereof extracted from, embodying, containing or relating to such other party’s Confidential Information; provided, however, that one (1) copy of the Confidential Information\nmay be retained by the Receiving Party’s outside counsel on a confidential basis for purposes of verification. Any destruction pursuant to (b) in the preceding sentence shall be\npromptly confirmed in writing.\n7. No Warranties. The Receiving Party acknowledges that neither the Disclosing Party nor its Representatives makes any representation or warranty hereunder as to\nthe accuracy or completeness of any Confidential Information of the Disclosing Party or other information disclosed pursuant to this Agreement, each Party agrees to assume\nfull responsibility for all conclusions it derives from the Confidential Information. The Receiving Party agrees that neither the Disclosing Party nor its Representatives shall\nhave any liability hereunder to the Receiving Party or to any of the Receiving Party’s Representatives on any basis (including, without limitation, in contract, tort, under\nfederal or state securities laws, or otherwise) as a result of the use of such Confidential Information by the Receiving Party and the Receiving Party’s Representatives, it being\nunderstood that only those particular representations and warranties that may be made to the Receiving Party by the Disclosing Party or its affiliates in a definitive transaction\nagreement, when, as and if it is executed, and subject to such limitations and restrictions as may be specified in such definitive agreement, shall have any legal effect. Each\nParty and its respective Representatives hereby expressly disclaim any and all liability that may be based, in whole or in part, on errors or omissions in any Confidential\nInformation furnished hereunder. Unless and until a definitive agreement (the “Definitive Agreement”) with respect to a Possible Transaction has been executed and delivered\nby the Parties hereto, neither Party will be under any legal Obligation of any kind whatsoever to proceed with a Possible Transaction in whole or in part or to continue\ndiscussions relating thereto by virtue of this Agreement or any written or oral expression with respect to such a Possible Transaction by any of its Representatives. Prior to the\nexecution and delivery of the Definitive Agreement, either party may terminate discussions and negotiations regarding a Possible Transaction at any time, wit lout any liability\nwhatsoever, save for the obligations and duties specifically agreed to herein For the purposes hereof, the term “Definitive Agreement” does not include an executed letter of\nintent or any other preliminary written agreement nor does it include any written or verbal acceptance of an offer or bid.\n8. Notices. All notices, requests, consents, and other communications required or permitted hereunder shall be in writing and shall be personally delivered, mailed\nusing first-class, registered, or certified mail, postage prepaid, sent using a nationally recognized overnight courier to the following addresses or to such other address as the\nparties hereto may designate in writing:\nALCATEL LUCENT:\nALCATEL LUCENT\n600 Mountain Avenue\nPage 3 of 5\nMurray Hill, NJ 07974\nAttn: John R. McCord\nwith a copy to:\nALCATEL LUCENT\n600 Mountain Avenue\nMurray Hill, NJ 07974\nAttn: General Counsel\nMOTIVE:\nMOTIVE, INC.\n12515 Research Boulevard\nBuilding 5\nAustin, TX 78759\nUSA\nAttn: General Counsel\nAll such notices, requests, consents and other communications shall be deemed to be properly given (a) if delivered personally to the address as provided in this\nSection, upon delivery, (b) if sent by mail, three (3) business days after the same has been deposited in mail, addressed and postage prepaid as set forth above and (c) if\ndelivered by overnight courier to the address as provided in this Section, on the earlier of the first business day following the date sent by such overnight courier or upon\nreceipt (in each case regardless of whether such notice, request or other communication is received by any other person to whom a copy of such notice is to be delivered\npursuant to this Section). Any Party from time to time may change its address, facsimile number or other information for the purpose of notices to that Party by giving notice\nspecifying such change to the other Party hereto.\n9. Severability. If any term or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms\nand provisions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.\n10. Entire Agreement: Amendments: Consent to Assignment. This Agreement comprises the full agreement between the Parties concerning the subject matter hereof.\nThis Agreement supersedes any prior understandings or agreements, regardless of form, between the Parties with respect to the subject matter hereof. No amendments,\nchanges or modifications may be made to this Agreement without the express written consent of each of the Parties hereto. This Agreement and the rights and obligations of a\nParty hereunder may not be assigned, directly, indirectly, by operation of law or otherwise, by either Part) without the prior written consent of the other Party.\n \n11. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts\nmade and to be performed therein, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law.\nThe state and federal courts located in New York shall have non-exclusive jurisdiction and venue over any dispute arising out of or relating to this Agreement, and each Party\nconsents to the personal jurisdiction and venue of these courts. Each Party waives any objection that it may now or hereafter have to the laying of venue of any such\nproceeding in any court in the state of New York and any claim that it may now or hereafter have that any such proceeding in any court in the state of New York has been\nbrought in an inconvenient forum.\n12. Remedies; Legal Fees. Each Party acknowledges that the other would be irreparably injured if the Receiving Party breaches any of its obligations under this\nAgreement. The Parties each agree that money damages would not be a sufficient remedy for any breach of this Agreement and that, in the event of a breach by a Party or its\nRepresentatives, the other Party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for such breach. Such remedies shall not be\ndeemed to be the exclusive remedies for a breach of this Agreement by a Party or its Representatives but shall be in addition to all other remedies available at law or equity to\nthe non-breaching Party. Each Party expressly agrees to waive the defense that a remedy in damages will be adequate, and agrees to use its reasonable best efforts to cause its\nRepresentatives to waive, any requirement for the securing or posting of any bond in connection with any such remedy. In the event of litigation relating to this Agreement, if\na court of competent jurisdiction determines that a Party or any of its Representatives have breached\nPage 4 of 5\nthis Agreement, then such Party shall be liable and pay to the other Party the reasonable legal fees and expenses incurred by the other Party in connection with such litigation,\nincluding any appeal therefrom.\n13. Waiver. Each Party understands and agrees that no failure or delay by the other Party in exercising any right, power or privilege under this Agreement shall operate\nas a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise of any right, power or privilege hereunder.\n14. Term of Agreement. This Agreement and the obligations of the Parties hereunder shall terminate two years from the date hereof.\n15. Binding Effect. This Agreement shall benefit and be binding upon the Parties and their respective permitted successors and assigns.\n16. Construction. This Agreement has been negotiated by the Parties and their respective attorneys, and the language of this Agreement shall not be construed for or\nagainst either Party.\n17. Counterparts; Facsimile Signatures. This Agreement may be executed in two or more counterparts, each of which shall be binding as of the date first written\nabove. Each such copy shall be deemed an original, and it shall not be necessary in making proof of this Agreement to produce or account for more than one such counterpart.\nThis Agreement may be executed and delivered by facsimile and upon such delivery the facsimile signature will be deemed to have the same effect as if the original signature\nhad been delivered to the other party. The original signature copy shall be delivered to the other party by overnight courier. The failure to deliver the original signature copy\nand/or the nonreceipt of the original signature copy shall have no effect upon the binding and enforceable nature of this Agreement.\n \n \nIN WITNESS WHEREOF, this Nondisclosure Agreement has been executed by the parties hereto as of the day and year first written above.\nAlcatel-Lucent\nBy: /s/ Scott M. Ashby\n \nName: Scott M. Ashby\nTitle: DEPUTY CFO\n \nMotive, Inc.\na Delawara corporation\nBy: /s/ Jack Greenberg\nName: Jack Greenberg\n \nTitle: GENERAL COUNSEL & SECRETARY\n \nPage 5 of 5	EX-99.(E)(4) 4 p75864exv99wxeyx4y.htm EXHIBIT 99.(E)(4)\nExhibit (e)(4)\nNONDISCLOSURE AGREEMENT\nTHIS NONDISCLOSURE AGREEMENT (this "Agreement"), dated as of March 28, 2007, is made by and between Motive, Inc., a Delaware corporation, with a\nprincipal place of business at 12515 Research Boulevard, Building 5, Austin, Texas 78759 USA (hereinafter "Motive") and Alcatel-Lucent, a a Societe Anonyme organized\nunder the laws of the Republic of France, with a principal office at 54 rue La Boetie, 75008 Paris, France (hereinafter "Alcatel Lucent").\nRECITALS\nWHEREAS, Motive and Alcatel Lucent (jointly, the "Parties" and each individually, a "Party") desire to enter into discussions related to a possible business\ncombination (the "Possible Transaction"), and these discussions will of necessity involve the disclosure by one Party (the "Disclosing Party") to the other Party (the\n"Receiving Party") of confidential and proprietary information; and\nWHEREAS, the Parties desire to (i) keep their discussions and the nature and scope thereof confidential; and (ii) reach an understanding with respect to the disclosure\nof such information and the confidentiality of the discussions in general;\nNOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, the parties hereto agree as follows:\n1. Definitions. The following terms shall have the meanings set forth below:\n1.1. "Confidential Information" includes all non-public information, whether written or oral (whatever the form or storage medium), or gathered by inspection,\nor acquired, directly or indirectly, by one Party or its Representatives from the other Party or its Representatives in connection with a Possible Transaction, regardless\nof whether such information is specifically identified as "confidential." The term "Confidential Information" does not include information which (i) was known to the\nReceiving Party or its Representatives or was in its or any of its Representatives possession prior to the date of its disclosure pursuant to this Agreement (except for\ninformation which was previously disclosed to the Receiving Party or its Representatives under an obligation of confidentiality to the Disclosing Party or its\nRepresentatives and which continues to remain subject to those confidentiality obligations); (ii) is or becomes generally available to the public other than through\nan\nunauthorized disclosure by the Receiving Party or its Representatives in violation of this Agreement; (iii) becomes available to the Receiving Party or its\nRepresentatives from a source other than the Disclosing Party or its Representatives, provided that such source is not, to the Receiving Party's knowledge, prohibited\nfrom transmitting such Confidential Information to the Receiving Party by a contractual, legal or fiduciary obligation to the Disclosing Party or its Representatives; or\n(iv) is independently developed by the Receiving Party or any of its Representatives as demonstrated by the written records of such Party or Representatives which\nhave not had access to the other Party's Confidential Information.\n1.2. "Person' "shall be broadly interpreted to include, without limitation, any individual, corporation, company, group, partnership, limited liability company or\nother entity.\n1.3. "Representatives" means a Party's affiliates and its and their respective directors, officers, employees, agents or representatives, including, without\nlimitation, its and their respective attorneys, accountants, consultants and financial advisors.\n1.4. "Residuals" means technological information and all ideas, concepts, and understandings related thereto that would be inadvertently retained in non-\ntangible form in the unaided memory of an ordinary Person unless such Person intentionally memorized such technological information, ideas, concepts and\nunderstandings for the purpose of retaining and subsequently using or disclosing it for purposes other than as authorized by this Agreement.\n2. Confidential Information.\n2.1. Each Party recognizes and acknowledges the value of the Confidential Information and the damage that could result if the Confidential Information were used or\ndisclosed except as authorized by this Agreement. Except as otherwise required by applicable law or regulatory authority, each Party agrees to keep confidential and not\ndisclose, and cause its Representatives to keep confidential and not disclose, to any Person the Confidential Information it or its Representatives receives from the other Party\nor its Representatives without the Disclosing Party's prior written consent, except as provided below. The Receiving Party or its Representatives shall be entitled to disclose\nthe Confidential Information of the Disclosing Party and provide copies of the same, without the\nDisclosing Party's prior written consent, to those Representatives of the Receiving Party who need to know such Confidential Information solely for the purpose of evaluating\nthe Possible Transaction. The Receiving Party shall be responsible for any violations of any provision of this Agreement caused by any of the Receiving Party's\nRepresentatives.\n2.2. The Receiving Party acknowledges that the Evaluation Material is being furnished to the Receiving Party in consideration of the Receiving Party's agreement that\nit will not propose to the Disclosing Party or any other person any transaction between the Receiving Party and the Disclosing Party and/or its security holders or involving\nany\nof its securities or security holders unless the Disclosing Party shall have requested in writing that the Receiving Party make such a proposal, and that the Receiving Party\nwill not acquire, or assist, advise or encourage any other persons in acquiring, directly or indirectly, control of the Disclosing Party or any of the Disclosing Party's securities,\nbusinesses or assets for a period of two (2) years from the date of this Agreement unless the Disclosing Party shall have consented in advance in writing to any such action.\n2.3 The Receiving Party agrees that it will not use the Evaluation Material in any way directly or indirectly detrimental to the Disclosing Party. In particular, the\nReceiving Party agrees that it and its Representatives will not knowingly, as a result of knowledge or information obtained from the Evaluation Material or otherwise in\nconnection with the Possible Transaction, directly or indirectly: (i) solicit, divert or attempt to solicit or divert any business or customer of the Disclosing Party or any of its\naffiliates; nor (ii) solicit, the employment of, employ, divert or attempt any of the foregoing with respect to, any employee of the Disclosing Party or any of its affiliates\n3. Use of Confidential Information for Evaluation; Disclosure. Neither the Receiving Party nor any of its Representatives shall use the Confidential Information for\nany purpose, other than evaluation of the Possible Transaction. Each Party hereby acknowledges that it is aware, and that it will advise its Representatives who are informed\nas\nto the matters which are the subject of this Agreement, that United States securities laws prohibit any person who has received from an issuer material, non-public\nany information of Confidential other person concerning Information under circumstances the matters in this Agreement which in which are the shall it is subject reasonably extend of until this foreseeable Agreement the earlier that of from (a) such the purchasing person expiration is or likely of selling the to period securities purchase set forth or of sell such in such Section issuer securities. or 14 from of this The communicating Agreement, restrictions (b) on such the disclosure information Parties' and entry to use\ninto a separate, subsequent agreement that contains confidentiality and non-disclosure provisions that supersede this Agreement with respect to the Confidential Information,\nand (c) such time, if ever, the Confidential Information becomes publicly available (otherwise than through a breach of this Agreement). Except to the extent the Receiving\nParty's legal counsel advises the Receiving Party that disclosure is required by applicable law or regulatory authority, without the prior written consent of the Disclosing Party,\nthe Receiving Party will not, and will direct the Receiving Party's Representatives not to, disclose to any other Person that such Confidential Information has been requested\nor made available, that discussions or negotiations are taking place concerning the Possible Transaction, or any of the terms, conditions or other facts with respect to the\nPossible Transaction, including the status thereof, or the term of this Agreement.\n4. Requested Disclosure of Confidentialdential Information.\n4.1 In the event that a Receiving Party or anyone to whom the Receiving Party transmits such Confidential Information pursuant to this Agreement is legally requested\n(by oral questions, interrogatories, request for information or documents, subpoena, civil investigative demand or similar process) or otherwise required to disclose any\nConfidential Information of a Disclosing Party, the Receiving Party will, except as prohibited by law, provide the Disclosing Party with written notice of same, prior to\ndisclosing such Confidential Information, so that the Disclosing Party may seek an appropriate protective order and/or waive compliance with this Agreement. If, in the\nabsence of a protective order or the receipt of a waiver hereunder, the Receiving Party is nonetheless legally compelled to disclose such Confidential Information, it may,\nwithout liability hereunder, furnish only that portion of such Confidential Information that is legally required and will exercise reasonable commercial efforts to obtain\nassurance that confidential treatment will be accorded such Confidential Information.\n4.2 If either Party, in its sole judgment, determines that it is required by applicable securities laws to make disclosures or public statements prohibited by Paragraph 3,\nthe Party may make such disclosures or public statements as may be required by securities laws. The Disclosing Party shall provide the other Party with prior notice to the\nexten practicable.\nPage 2 of 5\n5. NO License; Use. Neither the execution of this Agreement, nor the furnishing of any materials or Confidential Information hereunder, shall be construed as granting\nor\nconferring any rights to the other Party, either expressly or by implication, estoppel or otherwise, any license under any trademark, patent, copyright, technological\ninformation or other information, or other intellectual property; provided, however, that a Person who has used or seen materials or information pursuant to this Agreement\nshall not be precluded from using or disclosing Residuals. Nothing in this Agreement shall be construed to limit the Receiving Party's right to independently develop\ninformation, materials, technology, or other products or services for itself or for others which may compete with the Disclosing Party so long as no disclosures or use in\nviolation of this Agreement has been made by the Receiving Party. Furthermore, nothing herein shall be construed as a representation or inference by Receiving Party that it\nhas not already developed, or may be in the process of developing, or may have already rightfully received or acquired from third parties, information similar to that\nConfidential Information to be disclosed by Disclosing Party hereunder.\n6. Ownership of Confidential Information. The Confidential information shall remain the property of the Disclosing Party, and the Disclosing Party may demand the\nreturn thereof at any time by written notice to the Receiving Party. Upon receipt of such notice, the Receiving Party shal (a) return to the Disclosing Party all Confidential\nInformation received by the Receiving Party or its Representatives from the Disclosing Party or its Representatives; and (b) destroy and cause each of its Representatives to\ndestroy each and every copy of any documents, drawings, data, memoranda and other written Materials together with any tapes and computer stored information or the parts\nthereof extracted from, embodying, containing or relating to such other party's Confidential Information; provided, however, that one (1) copy of the Confidential Information\nmay be retained by the Receiving Party's outside counsel on a confidential basis for purposes of verification. Any destruction pursuant to (b) in the preceding sentence shall be\npromptly confirmed in writing.\n7. NO Warranties. The Receiving Party acknowledges that neither the Disclosing Party nor its Representatives makes any representation or warranty hereunder as to\nthe accuracy or completeness of any Confidential Information of the Disclosing Party or other information disclosed pursuant to this Agreement, each Party agrees to assume\nful responsibility for all conclusions it derives from the Confidential Information. The Receiving Party agrees that neither the Disclosing Party nor its Representatives shall\nhave any liability hereunder to the Receiving Party or to any of the Receiving Party's Representatives on any basis (including, without limitation, in contract, tort, under\nfederal or state securities laws, or otherwise) as a result of the use of such Confidential Information by the Receiving Party and the Receiving Party's Representatives, it being\nunderstood that only those and warranties that be made to the the or its affiliates in a definitive transaction\nparticular\nrepresentations\nmay\nReceiving\nParty\nby\nDisclosing\nParty\nagreement, Party and its when, respective as and Representatives if it is executed, hereby and subject expressly to such disclaim limitations any and and all restrictions liability that as may may be be based, specified in whole in such or definitive in part, on agreement, errors or omissions shall have in any any legal Confidential effect. Each\nInformation furnished hereunder. Unless and until a definitive agreement (the "Definitive Agreement") with respect to a Possible Transaction has been executed and delivered\ndiscussions by the Parties relating hereto, thereto neither by Party virtue will of be this under Agreement any legal or any Obligation written of or any oral kind expression whatsoever with to respect proceed to such with a a Possible Possible Transaction Transaction by in whole any of or its in Representatives. part or to continue Prior to\nthe\nexecution and delivery of the Definitive Agreement, either party may terminate discussions and negotiations regarding a Possible Transaction at any time, wit lout any liability\nwhatsoever, save for the obligations and duties specifically agreed to herein For the purposes hereof, the term "Definitive Agreement" does not include an executed letter of\nintent or any other preliminary written agreement nor does it include any written or verbal acceptance of an offer or bid.\n8. Notices. Al notices, requests, consents, and other communications required or permitted hereunder shall be in writing and shall be personally delivered, mailed\nusing first-class, registered, or certified mail, postage prepaid, sent using a nationally recognized overnight courier to the following addresses or to such other address as the\nparties hereto may designate in writing:\nALCATEL LUCENT:\nALCATEL LUCENT\n600 Mountain Avenue\nPage 3 of 5\nMurray Hill, NJ 07974\nAttn: John R. McCord\nwith a copy to:\nALCATEL LUCENT\n600 Mountain Avenue\nMurray Hill, NJ 07974\nAttn: General Counsel\nMOTIVE:\nMOTIVE, INC.\n12515 Research Boulevard\nBuilding 5\nAustin, TX 78759\nUSA\nAttn: General Counsel\nAll such notices, requests, consents and other communications shall be deemed to be properly given (a) if delivered personally to the address as provided in this\nSection, upon delivery, (b) if sent by mail, three (3) business days after the same has been deposited in mail, addressed and postage prepaid as set forth above and (c)\nif\ndelivered by overnight courier to the address as provided in this Section, on the earlier of the first business day following the date sent by such overnight courier or upon\nreceipt (in each case regardless of whether such notice, request or other communication is received by any other person to whom a copy of such notice is to be delivered\npursuant to this Section). Any Party from time to time may change its address, facsimile number or other information for the purpose of notices to that Party by giving notice\nspecifying such change to the other Party hereto.\n9. Severability. If any term or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms\nand provisions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.\n10. Entire Agreement: Amendments: Consent to Assignment. This Agreement comprises the full agreement between the Parties concerning the subject matter hereof.\nThis Agreement supersedes any prior understandings or agreements, regardless of form, between the Parties with respect to the subject matter hereof. No amendments,\nchanges or modifications may be made to this Agreement without the express written consent of each of the Parties hereto. This Agreement and the rights and obligations of a\nParty hereunder may not be assigned, directly, indirectly, by operation of law or otherwise, by either Part) without the prior written consent of the other Party.\n11. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts\nmade and to be performed therein, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law.\nThe state and federal courts located in New York shall have non-exclusive jurisdiction and venue over any dispute arising out of or relating to this Agreement, and each\nParty\nconsents to the personal jurisdiction and venue of these courts. Each Party waives any objection that it may now or hereafter have to the laying of venue of any such\nproceeding in any court in the state of New York and any claim that it may now or hereafter have that any such proceeding in any court in the state of New York has been\nbrought in an inconvenient forum.\n12. Remedies; Legal Fees. Each Party acknowledges that the other would be irreparably injured if the Receiving Party breaches any of its obligations under this\nAgreement. The Parties each agree that money damages would not be a sufficient remedy for any breach of this Agreement and that, in the event of a breach by a Party or its\nRepresentatives, the other Party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for such breach. Such remedies shall not be\ndeemed to be the exclusive remedies for a breach of this Agreement by a Party or its Representatives but shall be in addition to all other remedies available at law or equity to\nthe non-breaching Party. Each Party expressly agrees to waive the defense that a remedy in damages will be adequate, and agrees to use its reasonable best efforts to cause its\nRepresentatives to waive, any requirement for the securing or posting of any bond in connection with any such remedy. In the event of litigation relating to this Agreement, if\na court of competent jurisdiction determines that a Party or any of its Representatives have breached\nPage 4 of 5\nthis Agreement, then such Party shall be liable and pay to the other Party the reasonable legal fees and expenses incurred by the other Party in connection with such litigation,\nincluding any appeal therefrom.\n13. Waiver. Each Party understands and agrees that no failure or delay by the other Party in exercising any right, power or privilege under this Agreement shall operate\nas a waiver thereof nor shal any single or partial exercise thereof preclude any other or future exercise of any right, power or privilege hereunder.\n14. Term of Agreement. This Agreement and the obligations of the Parties hereunder shall terminate two years from the date hereof.\n15. Binding Effect. This Agreement shall benefit and be binding upon the Parties and their respective permitted successors and assigns.\n16. Construction. This Agreement has been negotiated by the Parties and their respective attorneys, and the language of this Agreemen shall not be construed for or\nagainst either Party\n17. Counterparts; Facsimile Signatures. This Agreement may be executed in two or more counterparts, each of which shall be binding as of the date first written\nabove. Each such copy shal be deemed an original, and it shall not be necessary in making proof of this Agreement to produce or account for more than one such counterpart.\nThis Agreement may be executed and delivered by facsimile and upon such delivery the facsimile signature will be deemed to have the same effect as if the original signature\nhad been delivered to the other party. The original signature copy shall be delivered to the other party by overnight courier. The failure to deliver the original signature copy\nand/or the nonreceipt of the original signature copy shall have no effect upon the binding and enforceable nature of this Agreement.\nIN\nWITNESS WHEREOF, this Nondisclosure Agreement has been executed by the parties hereto as of the day and year first written above.\nAlcatel-Lucent\nBy: /s/ Scott M. Ashby\nName: Scott M. Ashby\nTitle: DEPUTY CFO\nMotive, Inc.\na Delawara corporation\nBy: /s/ Jack Greenberg\nName: Jack Greenberg\nTitle: GENERAL COUNSEL & SECRETARY\nPage 5 of 5	EX-99.(E)(4) 4 p75864exv99wxeyx4y.htm EXHIBIT 99.(E)(4)\nExhibit (e)(4)\nNONDISCLOSURE AGREEMENT\nTHIS NONDISCLOSURE AGREEMENT (this “Agreement”), dated as of March 28, 2007, is made by and between Motive, Inc., a Delaware corporation, with a\nprincipal place of business at 12515 Research Boulevard, Building 5, Austin, Texas 78759 USA (hereinafter “Motive”) and Alcatel-Lucent, a a Societe Anonyme organized\nunder the laws of the Republic of France, with a principal office at 54 rue La Boetie, 75008 Paris, France (hereinafter “Alcatel Lucent”).\nRECITALS\nWHEREAS, Motive and Alcatel Lucent (jointly, the “Parties” and each individually, a “Party”) desire to enter into discussions related to a possible business\ncombination (the “Possible Transaction”), and these discussions will of necessity involve the disclosure by one Party (the “Disclosing Party”) to the other Party (the\n“ Receiving Party”) of confidential and proprietary information; and\nWHEREAS, the Parties desire to (i) keep their discussions and the nature and scope thereof confidential; and (ii) reach an understanding with respect to the disclosure\nof such information and the confidentiality of the discussions in general;\nNOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, the parties hereto agree as follows:\n1. Definitions. The following terms shall have the meanings set forth below:\n1.1. “ Confidential Information” includes all non-public information, whether written or oral (whatever the form or storage medium), or gathered by inspection,\nor acquired, directly or indirectly, by one Party or its Representatives from the other Party or its Representatives in connection with a Possible Transaction, regardless\nof whether such information is specifically identified as “confidential.” The term “Confidential Information” does not include information which (i) was known to the\nReceiving Party or its Representatives or was in its or any of its Representatives’ possession prior to the date of its disclosure pursuant to this Agreement (except for\ninformation which was previously disclosed to the Receiving Party or its Representatives under an obligation of confidentiality to the Disclosing Party or its\nRepresentatives and which continues to remain subject to those confidentiality obligations); (ii) is or becomes generally available to the public other than through an\nunauthorized disclosure by the Receiving Party or its Representatives in violation of this Agreement; (iii) becomes available to the Receiving Party or its\nRepresentatives from a source other than the Disclosing Party or its Representatives, provided that such source is not, to the Receiving Party’s knowledge, prohibited\nfrom transmitting such Confidential Information to the Receiving Party by a contractual, legal or fiduciary obligation to the Disclosing Party or its Representatives; or\n(iv) is independently developed by the Receiving Party or any of its Representatives as demonstrated by the written records of such Party or Representatives which\nhave not had access to the other Party’s Confidential Information.\n1.2. “ Person”shall be broadly interpreted to include, without limitation, any individual, corporation, company, group, partnership, limited liability company or\nother entity.\n1.3. “Representatives” means a Party’s affiliates and its and their respective directors, officers, employees, agents or representatives, including, without\nlimitation, its and their respective attorneys, accountants, consultants and financial advisors.\n1.4. “Residuals” means technological information and all ideas, concepts, and understandings related thereto that would be inadvertently retained in non-\ntangible form in the unaided memory of an ordinary Person unless such Person intentionally memorized such technological information, ideas, concepts and\nunderstandings for the purpose of retaining and subsequently using or disclosing it for purposes other than as authorized by this Agreement.\n2. Confidential Information.\n2.1. Each Party recognizes and acknowledges the value of the Confidential Information and the damage that could result if the Confidential Information were used or\ndisclosed except as authorized by this Agreement. Except as otherwise required by applicable law or regulatory authority, each Party agrees to keep confidential and not\ndisclose, and cause its Representatives to keep confidential and not disclose, to any Person the Confidential Information it or its Representatives receives from the other Party\nor its Representatives without the Disclosing Party’s prior written consent, except as provided below. The Receiving Party or its Representatives shall be entitled to disclose\nthe Confidential Information of the Disclosing Party and provide copies of the same, without the\nDisclosing Party’s prior written consent, to those Representatives of the Receiving Party who need to know such Confidential Information solely for the purpose of evaluating\nthe Possible Transaction. The Receiving Party shall be responsible for any violations of any provision of this Agreement caused by any of the Receiving Party’s\nRepresentatives.\n2.2. The Receiving Party acknowledges that the Evaluation Material is being furnished to the Receiving Party in consideration of the Receiving Party’s agreement that\nit will not propose to the Disclosing Party or any other person any transaction between the Receiving Party and the Disclosing Party and/or its security holders or involving\nany of its securities or security holders unless the Disclosing Party shall have requested in writing that the Receiving Party make such a proposal, and that the Receiving Party\nwill not acquire, or assist, advise or encourage any other persons in acquiring, directly or indirectly, control of the Disclosing Party or any of the Disclosing Party’s securities,\nbusinesses or assets for a period of two (2) years from the date of this Agreement unless the Disclosing Party shall have consented in advance in writing to any such action.\n2.3 The Receiving Party agrees that it will not use the Evaluation Material in any way directly or indirectly detrimental to the Disclosing Party. In particular, the\nReceiving Party agrees that it and its Representatives will not knowingly, as a result of knowledge or information obtained from the Evaluation Material or otherwise in\nconnection with the Possible Transaction, directly or indirectly: (i) solicit, divert or attempt to solicit or divert any business or customer of the Disclosing Party or any of its\naffiliates; nor (ii) solicit, the employment of, employ, divert or attempt any of the foregoing with respect to, any employee of the Disclosing Party or any of its affiliates\n3. Use of Confidential Information for Evaluation; Disclosure. Neither the Receiving Party nor any of its Representatives shall use the Confidential Information for\nany purpose, other than evaluation of the Possible Transaction. Each Party hereby acknowledges that it is aware, and that it will advise its Representatives who are informed\nas to the matters which are the subject of this Agreement, that United States securities laws prohibit any person who has received from an issuer material, non-public\ninformation concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to\nany other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. The restrictions on disclosure and use\nof Confidential Information in this Agreement shall extend until the earlier of (a) the expiration of the period set forth in Section 14 of this Agreement, (b) the Parties’ entry\ninto a separate, subsequent agreement that contains confidentiality and non-disclosure provisions that supersede this Agreement with respect to the Confidential Information,\nand (c) such time, if ever, the Confidential Information becomes publicly available (otherwise than through a breach of this Agreement). Except to the extent the Receiving\nParty’s legal counsel advises the Receiving Party that disclosure is required by applicable law or regulatory authority, without the prior written consent of the Disclosing Party,\nthe Receiving Party will not, and will direct the Receiving Party’s Representatives not to, disclose to any other Person that such Confidential Information has been requested\nor made available, that discussions or negotiations are taking place concerning the Possible Transaction, or any of the terms, conditions or other facts with respect to the\nPossible Transaction, including the status thereof, or the term of this Agreement.\n4. Requested Disclosure of Confidentialdential Information.\n4.1 In the event that a Receiving Party or anyone to whom the Receiving Party transmits such Confidential Information pursuant to this Agreement is legally requested\n(by oral questions, interrogatories, request for information or documents, subpoena, civil investigative demand or similar process) or otherwise required to disclose any\nConfidential Information of a Disclosing Party, the Receiving Party will, except as prohibited by law, provide the Disclosing Party with written notice of same, prior to\ndisclosing such Confidential Information, so that the Disclosing Party may seek an appropriate protective order and/or waive compliance with this Agreement. If, in the\nabsence of a protective order or the receipt of a waiver hereunder, the Receiving Party is nonetheless legally compelled to disclose such Confidential Information, it may,\nwithout liability hereunder, furnish only that portion of such Confidential Information that is legally required and will exercise reasonable commercial efforts to obtain\nassurance that confidential treatment will be accorded such Confidential Information.\n4.2 If either Party, in its sole judgment, determines that it is required by applicable securities laws to make disclosures or public statements prohibited by Paragraph 3,\nthe Party may make such disclosures or public statements as may be required by securities laws. The Disclosing Party shall provide the other Party with prior notice to the\nextent practicable.\nPage2of5\n5. No License; Use. Neither the execution of this Agreement, nor the furnishing of any materials or Confidential Information hereunder, shall be construed as granting\nor conferring any rights to the other Party, either expressly or by implication, estoppel or otherwise, any license under any trademark, patent, copyright, technological\ninformation or other information, or other intellectual property; provided, however, that a Person who has used or seen materials or information pursuant to this Agreement\nshall not be precluded from using or disclosing Residuals. Nothing in this Agreement shall be construed to limit the Receiving Party’s right to independently develop\ninformation, materials, technology, or other products or services for itself or for others which may compete with the Disclosing Party so long as no disclosures or use in\nviolation of this Agreement has been made by the Receiving Party. Furthermore, nothing herein shall be construed as a representation or inference by Receiving Party that it\nhas not already developed, or may be in the process of developing, or may have already rightfully received or acquired from third parties, information similar to that\nConfidential Information to be disclosed by Disclosing Party hereunder.\n6. Ownership of Confidential Information. The Confidential information shall remain the property of the Disclosing Party, and the Disclosing Party may demand the\nreturn thereof at any time by written notice to the Receiving Party. Upon receipt of such notice, the Receiving Party shall (a) return to the Disclosing Party all Confidential\nInformation received by the Receiving Party or its Representatives from the Disclosing Party or its Representatives; and (b) destroy and cause each of its Representatives to\ndestroy each and every copy of any documents, drawings, data, memoranda and other written Materials together with any tapes and computer stored information or the parts\nthereof extracted from, embodying, containing or relating to such other party’s Confidential Information; provided, however, that one (1) copy of the Confidential Information\nmay be retained by the Receiving Party’s outside counsel on a confidential basis for purposes of verification. Any destruction pursuant to (b) in the preceding sentence shall be\npromptly confirmed in writing.\n7. No Warranties. The Receiving Party acknowledges that neither the Disclosing Party nor its Representatives makes any representation or warranty hereunder as to\nthe accuracy or completeness of any Confidential Information of the Disclosing Party or other information disclosed pursuant to this Agreement, each Party agrees to assume\nfull responsibility for all conclusions it derives from the Confidential Information. The Receiving Party agrees that neither the Disclosing Party nor its Representatives shall\nhave any liability hereunder to the Receiving Party or to any of the Receiving Party’s Representatives on any basis (including, without limitation, in contract, tort, under\nfederal or state securities laws, or otherwise) as a result of the use of such Confidential Information by the Receiving Party and the Receiving Party’s Representatives, it being\nunderstood that only those particular representations and warranties that may be made to the Receiving Party by the Disclosing Party or its affiliates in a definitive transaction\nagreement, when, as and if it is executed, and subject to such limitations and restrictions as may be specified in such definitive agreement, shall have any legal effect. Each\nParty and its respective Representatives hereby expressly disclaim any and all liability that may be based, in whole or in part, on errors or omissions in any Confidential\nInformation furnished hereunder. Unless and until a definitive agreement (the “Definitive Agreement”) with respect to a Possible Transaction has been executed and delivered\nby the Parties hereto, neither Party will be under any legal Obligation of any kind whatsoever to proceed with a Possible Transaction in whole or in part or to continue\ndiscussions relating thereto by virtue of this Agreement or any written or oral expression with respect to such a Possible Transaction by any of its Representatives. Prior to the\nexecution and delivery of the Definitive Agreement, either party may terminate discussions and negotiations regarding a Possible Transaction at any time, wit lout any liability\nwhatsoever, save for the obligations and duties specifically agreed to herein For the purposes hereof, the term “Definitive Agreement” does not include an executed letter of\nintent or any other preliminary written agreement nor does it include any written or verbal acceptance of an offer or bid.\n8. Notices. All notices, requests, consents, and other communications required or permitted hereunder shall be in writing and shall be personally delivered, mailed\nusing first-class, registered, or certified mail, postage prepaid, sent using a nationally recognized overnight courier to the following addresses or to such other address as the\nparties hereto may designate in writing:\nALCATEL LUCENT:\nALCATEL LUCENT\n600 Mountain Avenue\nPage3of5\nMurray Hill, NJ 07974\nAttn: John R. McCord\nwith a copy to:\nALCATEL LUCENT\n600 Mountain Avenue\nMurray Hill, NJ 07974\nAttn: General Counsel\nMOTIVE:\nMOTIVE, INC .\n12515 Research Boulevard\nBuilding 5\nAustin, TX 78759\nUSA\nAttn: General Counsel\nAll such notices, requests, consents and other communications shall be deemed to be properly given (a) if delivered personally to the address as provided in this\nSection, upon delivery, (b) if sent by mail, three (3) business days after the same has been deposited in mail, addressed and postage prepaid as set forth above and (c) if\ndelivered by overnight courier to the address as provided in this Section, on the earlier of the first business day following the date sent by such overnight courier or upon\nreceipt (in each case regardless of whether such notice, request or other communication is received by any other person to whom a copy of such notice is to be delivered\npursuant to this Section). Any Party from time to time may change its address, facsimile number or other information for the purpose of notices to that Party by giving notice\nspecifying such change to the other Party hereto.\n9. Severability. If any term or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms\nand provisions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.\n10. Entire Agreement: Amendments: Consent to Assignment. This Agreement comprises the full agreement between the Parties concerning the subject matter hereof.\nThis Agreement supersedes any prior understandings or agreements, regardless of form, between the Parties with respect to the subject matter hereof. No amendments,\nchanges or modifications may be made to this Agreement without the express written consent of each of the Parties hereto. This Agreement and the rights and obligations of a\nParty hereunder may not be assigned, directly, indirectly, by operation of law or otherwise, by either Part) without the prior written consent of the other Party.\n11. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts\nmade and to be performed therein, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law.\nThe state and federal courts located in New York shall have non-exclusive jurisdiction and venue over any dispute arising out of or relating to this Agreement, and each Party\nconsents to the personal jurisdiction and venue of these courts. Each Party waives any objection that it may now or hereafter have to the laying of venue of any such\nproceeding in any court in the state of New York and any claim that it may now or hereafter have that any such proceeding in any court in the state of New York has been\nbrought in an inconvenient forum.\n12. Remedies; Legal Fees. Each Party acknowledges that the other would be irreparably injured if the Receiving Party breaches any of its obligations under this\nAgreement. The Parties each agree that money damages would not be a sufficient remedy for any breach of this Agreement and that, in the event of a breach by a Party or its\nRepresentatives, the other Party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for such breach. Such remedies shall not be\ndeemed to be the exclusive remedies for a breach of this Agreement by a Party or its Representatives but shall be in addition to all other remedies available at law or equity to\nthe non-breaching Party. Each Party expressly agrees to waive the defense that a remedy in damages will be adequate, and agrees to use its reasonable best efforts to cause its\nRepresentatives to waive, any requirement for the securing or posting of any bond in connection with any such remedy. In the event of litigation relating to this Agreement, if\na court of competent jurisdiction determines that a Party or any of its Representatives have breached\nPage4of5\nthis Agreement, then such Party shall be liable and pay to the other Party the reasonable legal fees and expenses incurred by the other Party in connection with such litigation,\nincluding any appeal therefrom.\n13. Waiver. Each Party understands and agrees that no failure or delay by the other Party in exercising any right, power or privilege under this Agreement shall operate\nas a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise of any right, power or privilege hereunder.\n14. Term of Agreement. This Agreement and the obligations of the Parties hereunder shall terminate two years from the date hereof.\n15. Binding Effect. This Agreement shall benefit and be binding upon the Parties and their respective permitted successors and assigns.\n16. Construction. This Agreement has been negotiated by the Parties and their respective attorneys, and the language of this Agreement shall not be construed for or\nagainst either Party.\n17. Counterparts; Facsimile Signatures. This Agreement may be executed in two or more counterparts, each of which shall be binding as of the date first written\nabove. Each such copy shall be deemed an original, and it shall not be necessary in making proof of this Agreement to produce or account for more than one such counterpart.\nThis Agreement may be executed and delivered by facsimile and upon such delivery the facsimile signature will be deemed to have the same effect as if the original signature\nhad been delivered to the other party. The original signature copy shall be delivered to the other party by overnight courier. The failure to deliver the original signature copy\nand/or the nonreceipt of the original signature copy shall have no effect upon the binding and enforceable nature of this Agreement.\nIN WITNESS WHEREOF, this Nondisclosure Agreement has been executed by the parties hereto as of the day and year first written above.\nAlcatel-Lucent\nBy: /s/ Scott M. Ashby\nName: Scott M. Ashby\nTitle: DEPUTY CFO\nMotive, Inc.\na Delawara corporation\nBy: /s/ Jack Greenberg\nName: Jack Greenberg\nTitle: GENERAL COUNSEL & SECRETARY\nPage5of5
0998fea954e55ef7d03d9702a5565d61.pdf	effective_date jurisdiction party term	EX-10 .1 5 ules_ex101.htm CONSULTING AGREEMENT\nNON-CIRCUMVENT AGREEMENT\nNON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nThis Non-Disclosure/non circumvent and Confidentiality agreement entered into between\nTopSight Corporation, a Nevada Corporation, hereinafter referred to as “TOPSIGHT”, with its corporate address at 4616 W.\nSahara Ave, STE 256, Las Vegas, NV 89102, and\nUnited Lumicon Exhibition Services, Inc. , a(n) Nevada company, hereinafter referred to as “COMPANY”, with its\ncorporate address at 3984 Vanessa Dr, Las Vegas, NV 89103 , Dated May 21 , 2015\nThe Parties agree to respect the integrity and tangible value of this agreement between them.\nThis agreement will remain in effect between said parties for 5 years from the date of the last exchange of information or business\ntransaction.\nFor each entity/corporation/business, a one time non-refundable $1250.00 (One Thousand Two Hundred and Fifty Dollar)\nadministrative fee to be invoiced and payable to TOPSIGHT within 3 (Three) business days of the agreement acceptance.\nCOMPANY shall be responsible for out-of-pocket cost including, but not limited to state incorporation fees/registration fees,\naccounting and bookkeeping cost, full auditing fees, legal fee, EDGAR fee, market maker fee etc.\nShould any agreement be completed with introduction parties on any entity/corporation/business or person,\ncompensation/consulting fee for TOPSIGHT, in the form of equity per entity that is being provided services, will be incorporated\ninto said deal per deal, and shall be due and payable upon execution of this agreement. For TOPSIGHT the\ncompensation/consulting fee will be payable in the form of equity and will consist of an issuance of 4,675,000 shares of client’s\ncommon stock.\nCOMPANY shall be responsible for out-of-pocket cost including, but not limited to state incorporation fees/registration fees,\naccounting and bookkeeping cost, full auditing fees, legal fee, EDGAR fee, Transfer Agent fee, DTC Eligibility fee, Listing fee etc.\nBecause of THIS AGREEMENT, the Parties involved in this transaction may learn from one another, or from principals, the names\nand telephone numbers of vendors, borrowers, lenders, agents, brokers, banks, lending corporations, individuals and/or trusts, or\nbuyers and sellers hereinafter called contacts. The Parties with this acknowledge, accept and agree that the identities of the contacts\nwill be recognized by the other Party as exclusive and valuable contacts of the introducing Party and will remain so for the duration\nof this agreement.\nThe Parties agree to keep confidential the names of any contacts introduced or revealed to the other party, and that their firm,\ncompany, associates, corporations, joint ventures, partnerships, divisions, subsidiaries, employees, agents, heirs, assigns, designees,\nor consultants, friends and referrers will not contact, deal with, negotiate or participate in any transactions with any of the contacts\nwithout first entering a written agreement with the Party who provided such contact unless that Party gives prior written permission.\nSuch confidentiality will include any names, addresses, telephone, telex, facsimile numbers, and/or other pertinent information\ndisclosed or revealed to either Party.\nThe Parties agree not to disclose, reveal or make use of any information during discussion or observation regarding methods,\nconcepts, ideas, product/services, or proposed new products or services, nor to do business with any of the revealed contacts without\nthe written consent of the introducing party or parties.\nInitial /s/ ZC Initial /s/ XZ\nIn case of circumvention, the parties agree and guarantee that they will pay a legal monetary penalty that is equal to the commission\nor fee the circumvented Party should have realized in such transactions, by the person(s) engaged on the circumvention for each\noccurrence. If either party commences legal proceedings to interpret or enforce the terms of THIS AGREEMENT, the prevailing\nParty will be entitled to recover court costs and reasonable attorney fees.\nThis AGREEMENT may only be terminated by the mutual written agreement of ALL Parties during the initial term of this\nAgreement or if any material provision of this Agreement is breached the non-breaching party may terminate this Agreement by\nproviding five (5) days written notice to the breaching party.\nThe parties will construe THIS AGREEMENT in accordance with the laws of the State of Nevada. If any provision of this\nagreement is found to be void by any court of competent jurisdiction, the remaining provisions will remain in force and effect.\nTHIS AGREEMENT contains the entire understanding between the Parties and any waiver, amendment or modification to THIS\nAGREEMENT will be subject to the above conditions and must be attached hereto.\nUpon execution of THIS AGREEMENT by signature below, the Parties agree that any individual, firm company, associates,\ncorporations, joint ventures, partnerships, divisions, subsidiaries, employees, agents, heirs, assigns, designees or consultants of\nwhich the signee is an agent, officer, heir, successor, assign or designee is bound by the terms of THIS AGREEMENT.\nA facsimile copy of this Non-Circumvention, Non-Disclosure and Confidentiality Agreement shall constitute a legal and binding\ninstrument. By setting forth my hand below I warrant that I have complete authority to enter into THIS AGREEMENT.\nFor: TopSight Corporation\n/s/ Zixiao Chen\nPresident\nMay 21, 2015\nZixiao Chen\nTitle\nDate\nFor: United Lumicon Exhibition Services, Inc.\n/s/ Xu Zhang\nPresident\nMay 21, 2015\nXu Zhang\nTitle\nDate	EX-10.1 5 ules_ex101.htm CONSULTING AGREEMENT\nNON-CIRCUMVENT AGREEMENT\nNON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nThis Non-Disclosure/non circumvent and Confidentiality agreement entered into between\nTopSight Corporation, a Nevada Corporation, hereinafter referred to as “TOPSIGHT”, with its corporate address at 4616 W.\nSahara Ave, STE 256, Las Vegas, NV 89102, and\nUnited Lumicon Exhibition Services, Inc. , a(n) _Nevada company, hereinafter referred to as “COMPANY?”, with its\ncorporate address at _3984 Vanessa Dr, L.as Vegas, NV 89103 , Dated _May 21 , 2015\nThe Parties agree to respect the integrity and tangible value of this agreement between them.\nThis agreement will remain in effect between said parties for 5 years from the date of the last exchange of information or business\ntransaction.\nFor each entity/corporation/business, a one time non-refundable $1250.00 (One Thousand Two Hundred and Fifty Dollar)\nadministrative fee to be invoiced and payable to TOPSIGHT within 3 (Three) business days of the agreement acceptance.\nCOMPANY shall be responsible for out-of-pocket cost including, but not limited to state incorporation fees/registration fees,\naccounting and bookkeeping cost, full auditing fees, legal fee, EDGAR fee, market maker fee etc.\nShould any agreement be completed with introduction parties on any entity/corporation/business or person,\ncompensation/consulting fee for TOPSIGHT, in the form of equity per entity that is being provided services, will be incorporated\ninto said deal per deal, and shall be due and payable upon execution of this agreement. For TOPSIGHT the\ncompensation/consulting fee will be payable in the form of equity and will consist of an issuance of 4,675,000 shares of client’s\ncommon stock.\nCOMPANY shall be responsible for out-of-pocket cost including, but not limited to state incorporation fees/registration fees,\naccounting and bookkeeping cost, full auditing fees, legal fee, EDGAR fee, Transfer Agent fee, DTC Eligibility fee, Listing fee etc.\nBecause of THIS AGREEMENT, the Parties involved in this transaction may learn from one another, or from principals, the names\nand telephone numbers of vendors, borrowers, lenders, agents, brokers, banks, lending corporations, individuals and/or trusts, or\nbuyers and sellers hereinafter called contacts. The Parties with this acknowledge, accept and agree that the identities of the contacts\nwill be recognized by the other Party as exclusive and valuable contacts of the introducing Party and will remain so for the duration\nof this agreement.\nThe Parties agree to keep confidential the names of any contacts introduced or revealed to the other party, and that their firm,\ncompany, associates, corporations, joint ventures, partnerships, divisions, subsidiaries, employees, agents, heirs, assigns, designees,\nor consultants, friends and referrers will not contact, deal with, negotiate or participate in any transactions with any of the contacts\nwithout first entering a written agreement with the Party who provided such contact unless that Party gives prior written permission.\nSuch confidentiality will include any names, addresses, telephone, telex, facsimile numbers, and/or other pertinent information\ndisclosed or revealed to either Party.\nThe Parties agree not to disclose, reveal or make use of any information during discussion or observation regarding methods,\nconcepts, ideas, product/services, or proposed new products or services, nor to do business with any of the revealed contacts without\nthe written consent of the introducing party or parties.\nInitial /s/ ZC Initial /s/ XZ\ne\nIn case of circumvention, the parties agree and guarantee that they will pay a legal monetary penalty that is equal to the commission\nor fee the circumvented Party should have realized in such transactions, by the person(s) engaged on the circumvention for each\noccurrence. If either party commences legal proceedings to interpret or enforce the terms of THIS AGREEMENT, the prevailing\nParty will be entitled to recover court costs and reasonable attorney fees.\nThis AGREEMENT may only be terminated by the mutual written agreement of ALL Parties during the initial term of this\nAgreement or if any material provision of this Agreement is breached the non-breaching party may terminate this Agreement by\nproviding five (5) days written notice to the breaching party.\nThe parties will construe THIS AGREEMENT in accordance with the laws of the State of Nevada. If any provision of this\nagreement is found to be void by any court of competent jurisdiction, the remaining provisions will remain in force and effect.\nTHIS AGREEMENT contains the entire understanding between the Parties and any waiver, amendment or modification to THIS\nAGREEMENT will be subject to the above conditions and must be attached hereto.\nUpon execution of THIS AGREEMENT by signature below, the Parties agree that any individual, firm company, associates,\ncorporations, joint ventures, partnerships, divisions, subsidiaries, employees, agents, heirs, assigns, designees or consultants of\nwhich the signee is an agent, officer, heir, successor, assign or designee is bound by the terms of THIS AGREEMENT.\nA facsimile copy of this Non-Circumvention, Non-Disclosure and Confidentiality Agreement shall constitute a legal and binding\ninstrument. By setting forth my hand below I warrant that I have complete authority to enter into THIS AGREEMENT.\nFor: TopSight Corporation President May 21, 2015\nTitle Date\nPresident May 21, 2015\nTitle Date\n	EX-10.1 5 ules_ex101.htm CONSULTING AGREEMENT\nNON-CIRCUMVENT AGREEMENT\nNON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nThis Non-Disclosure/non circumvent and Confidentiality agreement entered into between\nTopSight Corporation, a Nevada Corporation, hereinafter referred to as "TOPSIGHT", with its corporate address at 4616 W.\nSahara Ave, STE 256, Las Vegas, NV 89102, and\nUnited Lumicon Exhibition Services, Inc. a(n) Nevada company, hereinafter referred to as "COMPANY", with its\ncorporate address at 3984 Vanessa Dr, Las Vegas, NV 89103 Dated May 21 2015\nThe Parties agree to respect the integrity and tangible value of this agreement between them.\nThis agreement will remain in effect between said parties for 5 years from the date of the last exchange of information or business\ntransaction.\nFor each entity/corporation/business, a one time non-refundable $1250.00 (One Thousand Two Hundred and Fifty Dollar)\nadministrative fee to be invoiced and payable to TOPSIGHT within 3 (Three) business days of the agreement acceptance.\nCOMPANY shall be responsible for out-of-pocket cost including, but not limited to state incorporation fees/registration fees,\naccounting and bookkeeping cost, full auditing fees, legal fee, EDGAR fee, market maker fee etc.\nShould any agreement be completed with introduction parties on any entity/corporation/busines or person,\ncompensation/consulting fee for TOPSIGHT, in the form of equity per entity that is being provided services, will be incorporated\ninto said deal per deal, and shall be due and payable upon execution of this agreement. For TOPSIGHT the\ncompensation/consulting fee will be payable in the form of equity and will consist of an issuance of 4,675,000 shares of client's\ncommon stock.\nCOMPANY shall be responsible for out-of-pocket cost including, but not limited to state incorporation fees/registration fees,\naccounting and bookkeeping cost, full auditing fees, legal fee, EDGAR fee, Transfer Agent fee, DTC Eligibility fee, Listing fee etc.\nBecause of THIS AGREEMENT, the Parties involved in this transaction may learn from one another, or from principals, the names\nand telephone numbers of vendors, borrowers, lenders, agents, brokers, banks, lending corporations, individuals and/or trusts, or\nbuyers\nand\nsellers\nhereinafter\ncalled\ncontacts.\nThe\nParties\nwith\nthis\nacknowledge,\naccept\nand\nagree\nthat\nthe\nidentities\nof\nthe\ncontacts\nwill be recognized by the other Party as exclusive and valuable contacts of the introducing Party and will remain so for the duration\nof this agreement.\nThe Parties agree to keep confidential the names of any contacts introduced or revealed to the other party, and that their firm,\ncompany, associates, corporations, joint ventures, partnerships, divisions, subsidiaries, employees, agents, heirs, assigns, designees,\nor consultants, friends and referrers will not contact, deal with, negotiate or participate in any transactions with any of the contacts\nwithout first entering a written agreement with the Party who provided such contact unless that Party gives prior written permission\nSuch confidentiality will include any names, addresses, telephone, telex, facsimile numbers, and/or other pertinent information\ndisclosed or revealed to either Party.\nThe Parties agree not to disclose, reveal or make use of any information during discussion or observation regarding methods,\nconcepts, ideas, product/services, or proposed new products or services, nor to do business with any of the revealed contacts without\nthe written consent of the introducing party or parties.\nInitial /s/ ZC Initial /s/ XZ\nIn case of circumvention, the parties agree and guarantee that they will pay a legal monetary penalty that is equal to the commission\nor fee the circumvented Party should have realized in such transactions, by the person(s) engaged on the circumvention for each\noccurrence. If either party commences legal proceedings to interpret or enforce the terms of THIS AGREEMENT, the prevailing\nParty will be entitled to recover court costs and reasonable attorney fees.\nThis AGREEMENT may only be terminated by the mutual written agreement of ALL Parties during the initial term of this\nAgreement or if any material provision of this Agreement is breached the non-breaching party may terminate this Agreement\nby\nproviding five (5) days written notice to the breaching party.\nThe parties will construe THIS AGREEMENT in accordance with the laws of the State of Nevada. If any provision of this\nagreement is found to be void by any court of competent jurisdiction, the remaining provisions will remain in force and effect.\nTHIS AGREEMENT contains the entire understanding between the Parties and any waiver, amendment or modification to THIS\nAGREEMENT will be subject to the above conditions and must be attached hereto.\nUpon execution of THIS AGREEMENT by signature below, the Parties agree that any individual, firm company, associates,\ncorporations, joint ventures, partnerships, divisions, subsidiaries, employees, agents, heirs, assigns, designees or consultants of\nwhich the signee is an agent, officer, heir, successor, assign or designee is bound by the terms of THIS AGREEMENT.\nA facsimile copy of this Non-Circumvention, Non-Disclosure and Confidentiality Agreement shall constitute a legal and binding\ninstrument. By setting forth my hand below I warrant that I have complete authority to enter into THIS AGREEMENT.\nFor: TopSight Corporation\n/s/ Zixiao Chen\nPresident\nMay 21, 2015\nZixiao Chen\nTitle\nDate\nFor: United Lumicon Exhibition Services, Inc.\n/s/ Xu Zhang\nPresident\nMay. 21, 2015\nXu Zhang\nTitle\nDate	EX-10 .1 5 ules_ex101.htm CONSULTING AGREEMENT\nNON-CIRCUMVENT AGREEMENT\nNON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nThis Non-Disclosure/non circumvent and Confidentiality agreement entered into between\nTopSight Corporation, a Nevada Corporation, hereinafter referred to as “TOPSIGHT”, with its corporate address at 4616 W.\nSahara Ave, STE 256, Las Vegas, NV 89102, and\nUnited Lumicon Exhibition Services, Inc. , a(n) Nevada company, hereinafter referred to as “COMPANY”, with its\ncorporate address at 3984 Vanessa Dr, Las Vegas, NV 89103 , Dated May 21 , 2015\nThe Parties agree to respect the integrity and tangible value of this agreement between them.\nThis agreement will remain in effect between said parties for 5 years from the date of the last exchange of information or business\ntransaction.\nFor each entity/corporation/business, a one time non-refundable $1250.00 (One Thousand Two Hundred and Fifty Dollar)\nadministrative fee to be invoiced and payable to TOPSIGHT within 3 (Three) business days of the agreement acceptance.\nCOMPANY shall be responsible for out-of-pocket cost including, but not limited to state incorporation fees/registration fees,\naccounting and bookkeeping cost, full auditing fees, legal fee, EDGAR fee, market maker fee etc.\nShould any agreement be completed with introduction parties on any entity/corporation/business or person,\ncompensation/consulting fee for TOPSIGHT, in the form of equity per entity that is being provided services, will be incorporated\ninto said deal per deal, and shall be due and payable upon execution of this agreement. For TOPSIGHT the\ncompensation/consulting fee will be payable in the form of equity and will consist of an issuance of 4,675,000 shares of client’s\ncommon stock.\nCOMPANY shall be responsible for out-of-pocket cost including, but not limited to state incorporation fees/registration fees,\naccounting and bookkeeping cost, full auditing fees, legal fee, EDGAR fee, Transfer Agent fee, DTC Eligibility fee, Listing fee etc.\nBecause of THIS AGREEMENT, the Parties involved in this transaction may learn from one another, or from principals, the names\nand telephone numbers of vendors, borrowers, lenders, agents, brokers, banks, lending corporations, individuals and/or trusts, or\nbuyers and sellers hereinafter called contacts. The Parties with this acknowledge, accept and agree that the identities of the contacts\nwill be recognized by the other Party as exclusive and valuable contacts of the introducing Party and will remain so for the duration\nof this agreement.\nThe Parties agree to keep confidential the names of any contacts introduced or revealed to the other party, and that their firm,\ncompany, associates, corporations, joint ventures, partnerships, divisions, subsidiaries, employees, agents, heirs, assigns, designees,\nor consultants, friends and referrers will not contact, deal with, negotiate or participate in any transactions with any of the contacts\nwithout first entering a written agreement with the Party who provided such contact unless that Party gives prior written permission.\nSuch confidentiality will include any names, addresses, telephone, telex, facsimile numbers, and/or other pertinent information\ndisclosed or revealed to either Party.\nThe Parties agree not to disclose, reveal or make use of any information during discussion or observation regarding methods,\nconcepts, ideas, product/services, or proposed new products or services, nor to do business with any of the revealed contacts without\nthe written consent of the introducing party or parties.\nInitial /s/ ZC Initial /s/ XZ\nIn case of circumvention, the parties agree and guarantee that they will pay a legal monetary penalty that is equal to the commission\nor fee the circumvented Party should have realized in such transactions, by the person(s) engaged on the circumvention for each\noccurrence. If either party commences legal proceedings to interpret or enforce the terms of THIS AGREEMENT, the prevailing\nParty will be entitled to recover court costs and reasonable attorney fees.\nThis AGREEMENT may only be terminated by the mutual written agreement of ALL Parties during the initial term of this\nAgreement or if any material provision of this Agreement is breached the non-breaching party may terminate this Agreement by\nproviding five (5) days written notice to the breaching party.\nThe parties will construe THIS AGREEMENT in accordance with the laws of the State of Nevada. If any provision of this\nagreement is found to be void by any court of competent jurisdiction, the remaining provisions will remain in force and effect.\nTHIS AGREEMENT contains the entire understanding between the Parties and any waiver, amendment or modification to THIS\nAGREEMENT will be subject to the above conditions and must be attached hereto.\nUpon execution of THIS AGREEMENT by signature below, the Parties agree that any individual, firm company, associates,\ncorporations, joint ventures, partnerships, divisions, subsidiaries, employees, agents, heirs, assigns, designees or consultants of\nwhich the signee is an agent, officer, heir, successor, assign or designee is bound by the terms of THIS AGREEMENT.\nA facsimile copy of this Non-Circumvention, Non-Disclosure and Confidentiality Agreement shall constitute a legal and binding\ninstrument. By setting forth my hand below I warrant that I have complete authority to enter into THIS AGREEMENT.\nFor: TopSight Corporation\n/s/ Zixiao Chen\nPresident\nMay 21, 2015\nZixiao Chen\nTitle\nDate\nFor: United Lumicon Exhibition Services, Inc.\n/s/ Xu Zhang\nPresident\nMay 21, 2015\nXu Zhang\nTitle\nDate
0a42e159b33ed521c4157d8babfaf3c1.pdf	effective_date jurisdiction party term	EX-10.3 5 a10-14025_1ex10d3.htm EX-10.3\nExhibit 10.3\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement (this “ Agreement”), dated as of July 16, 2010, is entered into by and among Financière Elitech\nSAS, a société par actions simplifiée organized under the laws of France (“Elitech”), Wescor, Inc., a Utah corporation (“Wescor”), Elitech UK\nLimited, a private limited company organized under the laws of the United Kingdom (“Elitech UK” and, collectively with Elitech and Wescor,\nthe “Elitech Group”), Corgenix Medical Corporation, a Nevada corporation (“Corgenix”), and Corgenix U.K. Ltd., a private limited company\norganized under the laws of the United Kingdom (“Corgenix U.K.” and, collectively with Corgenix, the “Corgenix Group”).\nPRELIMINARY STATEMENTS\nA.\nThe Elitech Group and the Corgenix Group desire to enter into a commercial relationship with each other, either directly or\nthrough their respective Affiliates (as defined below), specifically: (1) that certain Common Stock Purchase Agreement by and among Corgenix,\nElitech and Wescor (the “SPA”); (2) that certain Master Distribution Agreement by and between Corgenix and Elitech UK (the “MDA”); and\n(3) that certain Joint Product Development Agreement by and between Corgenix and Elitech (the “JPDA” and, collectively with the SPA and the\nMDA, the “Transaction Agreements”).\nB.\nIn order for the Corgenix Group and the Elitech Group to enter into the proposed commercial relationship, it is necessary for\nthe parties to disclose certain valuable proprietary information to each other and ensure that such proprietary information will be treated as\nconfidential.\nC.\nEach of Corgenix, Corgenix U.K., Elitech, Wescor and Elitech UK, on behalf of itself and its respective Affiliates, agrees and\nacknowledges that any Confidential Information (as defined below) that it receives from a disclosing party must be kept confidential in\naccordance with the terms and conditions of this Agreement.\nAGREEMENT\nThe parties, intending to be legally bound, agree as follows:\n1.\nDefinitions. For purposes of this Agreement the following terms shall have the meanings set forth below:\na. The term “documents” means form or medium in which Confidential Information may be produced, including, but not be\nlimited to, writings, spreadsheets, presentations, web pages, emails, voicemails, drawings, graphs, charts, photographs, sound\nrecordings, optical or magnetic discs and data compilations in whatever form recorded or stored from which information can be\nobtained and/or translated, if necessary, into reasonably usable form, and any reproductions thereof.\n1\nb. The term “Confidential Information” means any and all information, tangible or intangible, in whatever form or medium\nprovided or obtained by any receiving party or such party’s representatives, directly or indirectly, including all documents and\ninformation generated by a disclosing party or its representatives that contains, reflects or is derived from such information,\nwhether orally, in writing, in documents, through or by observation or otherwise, in any way relating to the Transaction\nAgreements and the transactions contemplated in such Transaction Agreements, including, but not limited to, information\nabout existing or contemplated products, services, client lists, marketing techniques, pricing policies, financial information,\nresearch and development techniques and processes, manufacturing processes, sales processes, bidding and tender processes,\ncosts, profits, sales, markets and all other data and intellectual property related thereto.\nNotwithstanding the foregoing, information shall not be considered Confidential Information for purposes of this Agreement if:\n(a) a receiving party or its Affiliates already possesses the information without an obligation of confidentiality at the time of\ndisclosure as verified by independent written files or records; (b) the information is or becomes part of the public domain other\nthan as a result of unauthorized disclosure by a receiving party or its Affiliates of such information; (c) the information has\nbeen or is made available to a receiving party or its Affiliates by a third party that, to the receiving party’s or its Affiliates’ best\nknowledge, is not under an obligation of confidentiality to the disclosing party or its Affiliates; or (d) the information is\nindependently developed by a receiving party or its Affiliates prior to such information being disclosed by a disclosing party, as\nverified by independent written files or records.\nc. The term “Affiliate” means with respect to any person, any other person that, directly or indirectly, controls, is controlled by,\nor is under a common control with, such first person. The term “control” including the terms “controlled by” and “under a\ncommon control with” (as used in the preceding sentence) means the possession, directly or indirectly, of the power to direct or\ncause the direction of management and policies of the person, whether through the ownership of securities, by contract or\notherwise.\n2.\nConfidentiality. With respect to the Confidential Information, the Elitech Group and its Affiliates (on the one hand), and the\nCorgenix Group and its Affiliates (on the other hand), shall: (a) restrict disclosure of the Confidential Information solely to those of their\nrespective employees, Affiliates, advisors or representatives with a need to know; (b) advise their respective employees, Affiliates, advisors or\nrepresentatives who receive the Confidential Information of the obligation of confidentiality hereunder; (c) use, and advise their respective\nemployees, Affiliates, advisors or representatives to use, the same degree of care to protect the Confidential Information and to prevent\ndisclosure of the Confidential Information as is used with the party’s own confidential information, which shall be at least the degree of care that\na reasonably prudent person would take to protect and prevent disclosure of confidential\n2\ninformation; and (d) use the Confidential Information only for purposes of carrying out their respective obligations under the Transaction\nAgreements.\n3.\nCompliance with Laws. If any party to this Agreement or its Affiliates, as the case may be, becomes legally compelled\n(including pursuant to any rule or regulation promulgated by any securities regulation authority or any securities exchange) to make any\ndisclosure that is prohibited or otherwise constrained by this Agreement, then such party will give, or will cause its Affiliate to give, the other\nparties immediate written notice of such requirement so that they may seek a protective order or other appropriate relief, or waive compliance\nwith the nondisclosure provisions of this Agreement. Subject to the foregoing, the party that is legally compelled to disclose Confidential\nInformation may make only such disclosure that it is legally compelled or otherwise required to make to avoid standing liable for contempt or\nsuffering other material censure or penalty; provided, however, that such party and its Affiliates must use reasonable efforts to obtain reliable\nassurance that confidential treatment will be accorded any Confidential Information so disclosed.\n4.\nReturn of Documents. Upon the request of Corgenix, on the one hand, or Elitech, on the other hand, the other party shall\nreturn, or shall cause its Affiliates to return, as the case may be, all documents containing the requesting party’s Confidential Information,\nwithout retaining any copies or other reproductions, in whole or in part, except for one copy of such documents or records retained in confidence\nby the other party’s counsel solely for the purpose of any dispute or anticipated dispute arising out of the discussions or use of the Confidential\nInformation.\n5.\nBreach. If the Corgenix Group or its Affiliates, on the one hand, or the Elitech Group or its Affiliates, on the other hand,\nbreaches its obligations under this Agreement, the other party shall have available to it all its rights and remedies at law and in equity, including\nthe right to seek injunctive relief without being required to post a bond or similar form of security, it being acknowledged and agreed by all\nparties that a breach or threatened breach of the terms of this Agreement by one party or its Affiliates may cause irreparable injury to the other\nparty or its Affiliates and that money damages will not provide an adequate remedy to such other party or its Affiliates.\n6.\nAssignment. This Agreement may not be assigned by any party hereto without the prior written consent of the other parties.\nThis Agreement shall bind and accrue to the benefit of the parties hereto and their respective successors and permitted assigns. Notwithstanding\nthe foregoing, this Agreement may be assigned by Elitech or Corgenix to any of their respective Affiliates, provided such Affiliate existed as of\nthe date of this Agreement.\n7.\nNotices. Except as may be otherwise provided herein, all notices, requests, waivers and other communications made pursuant\nto this Agreement will be in writing and will be conclusively deemed to have been duly given (a) when hand delivered to the other parties;\n(b) when received if sent by facsimile or electronic mail to the number or the email address set forth below, provided that the sending party\nreceives a confirmation of delivery; (c) three (3) business days after deposit in the U.S. mail with first class or certified mail receipt requested\n3\npostage prepaid and addressed to the other parties as set forth below; or (d) forty-eight (48) hours after deposit with an internationally recognized\novernight delivery service, postage prepaid, addressed to the parties as set forth below with next-business-day delivery guaranteed, provided that\nthe sending party receives a confirmation of delivery from the delivery service provider. Each person making a communication hereunder by\nfacsimile or electronic mail will promptly confirm by telephone to the person to whom such communication was addressed each communication\nmade by it by facsimile or electronic mail, but the absence of such confirmation will not affect the validity of any such communication. A party\nmay change or supplement the addresses, facsimile numbers and email addresses provided in its signature block below, or designate additional\naddresses, facsimile numbers or email addresses, for purposes of this Section 7 by giving the other parties written notice of the new address,\nfacsimile numbers or email addresses in the manner set forth above.\n8.\nGoverning Law. This Agreement and any controversy arising out of or relating to this Agreement will be governed by and\nconstrued in accordance with the internal laws of the State of Colorado, without regard to conflict of law principles that would result in the\napplication of any law other than the law of the State of Colorado.\n9.\nVenue. Each of the parties consents and submits to the jurisdiction of the federal courts located in the District of Colorado in\nconnection with any suits or other actions arising between the parties under this Agreement, and consents and waives any objections to the venue\nof such action or proceeding in the federal courts located in the District of Colorado.\n10.\nSeverability. If any term, provision, covenant, or condition of this Agreement, or its application to any person or\ncircumstance, will be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement and such\nterm, provision, covenant, or condition as applied to other persons or circumstances will remain in full force and effect.\n11.\nEntire Agreement; Amendments. The Transaction Agreements and this Agreement constitute the full and entire\nunderstanding and agreement among the parties with respect to the subject hereof and thereof. The provisions of this Agreement may be\namended with the prior written consent of Corgenix and Elitech.\n12.\nAuthorization. Each of the undersigned representatives of the parties warrants and represents that he or she is duly authorized\nto execute and deliver this Agreement on behalf of the respective party for which he or she signs, and that the organization on whose behalf he or\nshe signs is currently in good standing in the jurisdiction where organized.\n13.\nHeadings. The headings of the sections of this Agreement are inserted for convenience only and will not be deemed to\nconstitute a part of this Agreement.\n14.\nCounterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but\nall of which together will constitute one and the same instrument.\n4\n15.\nDelays, Omission, and Waivers. No delay or omission to exercise any right, power or remedy accruing to any party as a\nresult of a breach or default of this Agreement will impair any such right, power or remedy of the non-defaulting party, nor will it be construed to\nbe a waiver of any such breach or default or an acquiescence therein, nor will any similar breach or default be deemed a waiver of any other\nbreach or default theretofore or thereafter occurring; nor will any waiver of any single breach or default be deemed a waiver of any other breach\nor default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any\nbreach or default under this Agreement or any waiver on the part of any party of any provisions or conditions of this Agreement must be in\nwriting and will be effective only to the extent specifically set forth in such writing.\n16.\nSurvival. This Agreement shall become effective on the date set forth above and shall continue for as long as any of the\nTransaction Agreements are in effect, and shall survive the termination of any of the Transaction Agreements for a term of twenty (20) years\ncommencing on the date that the last Transaction Agreement expires or is terminated.\n[Remainder of page intentionally left blank. Signature page follows.]\n5\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered by their duly authorized\nrepresentative as of the date and year set forth above.\nCORGENIX MEDICAL CORPORATION\nFINANCIÈRE ELITECH SAS\nBy: Douglass T. Simpson\nBy: Pierre Debiais\nTitle: President and Chief Executive Officer\nTitle: President\nAddress for notices:\nAddress for notices:\nAttention: President\n11575 Main Street, Suite 400\nBroomfield, Colorado 80020\nFacsimile: (303) 453-8896\nEmail: Dsimpson@corgenix.com\nAttention: Pierre Debiais\n12-12 bis, rue Jean Jaurès\n92800 Puteaux\nFrance\nFacsimile: +33 (1) 41 45 07 19\nEmail: p.debiais@elitechgroup.com\nCORGENIX U.K. LTD.\nWESCOR, INC.\nBy: Douglass T. Simpson\nBy: Janice Wallentine\nTitle: Director\nTitle: Chief Financial Officer\nAddress for notices:\nAddress for notices:\n40 Commerce Road\nLynch Wood\nPeterborough PE2 6LR\nUnited Kingdom\nFax +44 (0) 1733 238412\nEmail: Dsimpson@corgenix.com\nAttention: Michael Saunders\n370 West 1700 South\nLogan, Utah 84321\nFacsimile: (425) 752-4127\nEmail: m.saunders@elitechgroup.com\nSignature Page — Mutual Confidentiality Agreement\n1\nELITECH UK LIMITED\nBy:\nTim Watson\nTitle: Managing Director\nAddress for notices:\nAttention: Tim Watson\nUnit 6, River Park Industrial Estate\nBillet Lane\nBerkhamsted HP4 1HL\nEngland\nFacsimile: +44 144 287 6774\nEmail: tim@elitechuk.com\nSignature Page — Mutual Confidentiality Agreement\n2	EX-10.3 5a10-14025_1ex10d3.htm EX-10.3\nExhibit 10.3\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement (this “Agreement”), dated as of July 16, 2010, is entered into by and among Financiére Elitech\nSAS, a société par actions simplifiée organized under the laws of France (“Elitech”), Wescor, Inc., a Utah corporation (“Wescor”), Elitech UK\nLimited, a private limited company organized under the laws of the United Kingdom (“Elitech UK” and, collectively with Elitech and Wescor,\nthe “Elitech Group”), Corgenix Medical Corporation, a Nevada corporation (“Corgenix”), and Corgenix U.K. Ltd., a private limited company\norganized under the laws of the United Kingdom (“Corgenix U.K.” and, collectively with Corgenix, the “Corgenix Group”).\nPRELIMINARY STATEMENTS\nA. The Elitech Group and the Corgenix Group desire to enter into a commercial relationship with each other, either directly or\nthrough their respective Affiliates (as defined below), specifically: (1) that certain Common Stock Purchase Agreement by and among Corgenix,\nElitech and Wescor (the “SPA”); (2) that certain Master Distribution Agreement by and between Corgenix and Elitech UK (the “MDA”); and\n(3) that certain Joint Product Development Agreement by and between Corgenix and Elitech (the “JPDA” and, collectively with the SPA and the\nMDA, the “Transaction Agreements”).\nB. In order for the Corgenix Group and the Elitech Group to enter into the proposed commercial relationship, it is necessary for\nthe parties to disclose certain valuable proprietary information to each other and ensure that such proprietary information will be treated as\nconfidential.\nC. Each of Corgenix, Corgenix U.K., Elitech, Wescor and Elitech UK, on behalf of itself and its respective Affiliates, agrees and\nacknowledges that any Confidential Information (as defined below) that it receives from a disclosing party must be kept confidential in\naccordance with the terms and conditions of this Agreement.\nAGREEMENT\nThe parties, intending to be legally bound, agree as follows:\n1. Definitions. For purposes of this Agreement the following terms shall have the meanings set forth below:\na. The term “documents” means form or medium in which Confidential Information may be produced, including, but not be\nlimited to, writings, spreadsheets, presentations, web pages, emails, voicemails, drawings, graphs, charts, photographs, sound\nrecordings, optical or magnetic discs and data compilations in whatever form recorded or stored from which information can be\nobtained and/or translated, if necessary, into reasonably usable form, and any reproductions thereof.\n1\n \nb. The term “Confidential Information” means any and all information, tangible or intangible, in whatever form or medium\nprovided or obtained by any receiving party or such party’s representatives, directly or indirectly, including all documents and\ninformation generated by a disclosing party or its representatives that contains, reflects or is derived from such information,\nwhether orally, in writing, in documents, through or by observation or otherwise, in any way relating to the Transaction\nAgreements and the transactions contemplated in such Transaction Agreements, including, but not limited to, information\nabout existing or contemplated products, services, client lists, marketing techniques, pricing policies, financial information,\nresearch and development techniques and processes, manufacturing processes, sales processes, bidding and tender processes,\ncosts, profits, sales, markets and all other data and intellectual property related thereto.\nNotwithstanding the foregoing, information shall not be considered Confidential Information for purposes of this Agreement if:\n(a) a receiving party or its Affiliates already possesses the information without an obligation of confidentiality at the time of\ndisclosure as verified by independent written files or records; (b) the information is or becomes part of the public domain other\nthan as a result of unauthorized disclosure by a receiving party or its Affiliates of such information; (c) the information has\nbeen or is made available to a receiving party or its Affiliates by a third party that, to the receiving party’s or its Affiliates’ best\nknowledge, is not under an obligation of confidentiality to the disclosing party or its Affiliates; or (d) the information is\nindependently developed by a receiving party or its Affiliates prior to such information being disclosed by a disclosing party, as\nverified by independent written files or records.\nc. The term “Affiliate” means with respect to any person, any other person that, directly or indirectly, controls, is controlled by,\nor is under a common control with, such first person. The term “control” including the terms “controlled by” and “under a\ncommon control with” (as used in the preceding sentence) means the possession, directly or indirectly, of the power to direct or\ncause the direction of management and policies of the person, whether through the ownership of securities, by contract or\notherwise.\n2. Confidentiality. With respect to the Confidential Information, the Elitech Group and its Affiliates (on the one hand), and the\nCorgenix Group and its Affiliates (on the other hand), shall: (a) restrict disclosure of the Confidential Information solely to those of their\nrespective employees, Affiliates, advisors or representatives with a need to know; (b) advise their respective employees, Affiliates, advisors or\nrepresentatives who receive the Confidential Information of the obligation of confidentiality hereunder; (c) use, and advise their respective\nemployees, Affiliates, advisors or representatives to use, the same degree of care to protect the Confidential Information and to prevent\ndisclosure of the Confidential Information as is used with the party’s own confidential information, which shall be at least the degree of care that\nareasonably prudent person would take to protect and prevent disclosure of confidential\n2\n \ninformation; and (d) use the Confidential Information only for purposes of carrying out their respective obligations under the Transaction\nAgreements.\n3. Compliance with Laws. If any party to this Agreement or its Affiliates, as the case may be, becomes legally compelled\n(including pursuant to any rule or regulation promulgated by any securities regulation authority or any securities exchange) to make any\ndisclosure that is prohibited or otherwise constrained by this Agreement, then such party will give, or will cause its Affiliate to give, the other\nparties immediate written notice of such requirement so that they may seek a protective order or other appropriate relief, or waive compliance\nwith the nondisclosure provisions of this Agreement. Subject to the foregoing, the party that is legally compelled to disclose Confidential\nInformation may make only such disclosure that it is legally compelled or otherwise required to make to avoid standing liable for contempt or\nsuffering other material censure or penalty; provided, however, that such party and its Affiliates must use reasonable efforts to obtain reliable\nassurance that confidential treatment will be accorded any Confidential Information so disclosed.\n4. Return of Documents. Upon the request of Corgenix, on the one hand, or Elitech, on the other hand, the other party shall\nreturn, or shall cause its Affiliates to return, as the case may be, all documents containing the requesting party’s Confidential Information,\nwithout retaining any copies or other reproductions, in whole or in part, except for one copy of such documents or records retained in confidence\nby the other party’s counsel solely for the purpose of any dispute or anticipated dispute arising out of the discussions or use of the Confidential\nInformation.\n5. Breach. If the Corgenix Group or its Affiliates, on the one hand, or the Elitech Group or its Affiliates, on the other hand,\nbreaches its obligations under this Agreement, the other party shall have available to it all its rights and remedies at law and in equity, including\nthe right to seek injunctive relief without being required to post a bond or similar form of security, it being acknowledged and agreed by all\nparties that a breach or threatened breach of the terms of this Agreement by one party or its Affiliates may cause irreparable injury to the other\nparty or its Affiliates and that money damages will not provide an adequate remedy to such other party or its Affiliates.\n6. Assignment. This Agreement may not be assigned by any party hereto without the prior written consent of the other parties.\nThis Agreement shall bind and accrue to the benefit of the parties hereto and their respective successors and permitted assigns. Notwithstanding\nthe foregoing, this Agreement may be assigned by Elitech or Corgenix to any of their respective Affiliates, provided such Affiliate existed as of\nthe date of this Agreement.\n7. Notices. Except as may be otherwise provided herein, all notices, requests, waivers and other communications made pursuant\nto this Agreement will be in writing and will be conclusively deemed to have been duly given (a) when hand delivered to the other parties;\n(b) when received if sent by facsimile or electronic mail to the number or the email address set forth below, provided that the sending party\nreceives a confirmation of delivery; (c) three (3) business days after deposit in the U.S. mail with first class or certified mail receipt requested\n3\n \npostage prepaid and addressed to the other parties as set forth below; or (d) forty-eight (48) hours after deposit with an internationally recognized\novernight delivery service, postage prepaid, addressed to the parties as set forth below with next-business-day delivery guaranteed, provided that\nthe sending party receives a confirmation of delivery from the delivery service provider. Each person making a communication hereunder by\nfacsimile or electronic mail will promptly confirm by telephone to the person to whom such communication was addressed each communication\nmade by it by facsimile or electronic mail, but the absence of such confirmation will not affect the validity of any such communication. A party\nmay change or supplement the addresses, facsimile numbers and email addresses provided in its signature block below, or designate additional\naddresses, facsimile numbers or email addresses, for purposes of this Section 7 by giving the other parties written notice of the new address,\nfacsimile numbers or email addresses in the manner set forth above.\n8. Governing Law. This Agreement and any controversy arising out of or relating to this Agreement will be governed by and\nconstrued in accordance with the internal laws of the State of Colorado, without regard to conflict of law principles that would result in the\napplication of any law other than the law of the State of Colorado.\n9. Venue. Each of the parties consents and submits to the jurisdiction of the federal courts located in the District of Colorado in\nconnection with any suits or other actions arising between the parties under this Agreement, and consents and waives any objections to the venue\nof such action or proceeding in the federal courts located in the District of Colorado.\n10. Severability. If any term, provision, covenant, or condition of this Agreement, or its application to any person or\ncircumstance, will be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement and such\nterm, provision, covenant, or condition as applied to other persons or circumstances will remain in full force and effect.\n11. Entire Agreement; Amendments. The Transaction Agreements and this Agreement constitute the full and entire understanding and agreement among the parties with respect to the subject hereof and thereof. The provisions of this Agreement may be amended with the prior written consent of Corgenix and Elitech. 12. Authorization. Each of the undersigned representatives of the parties warrants and represents that he or she is duly authorized to execute and deliver this Agreement on behalf of the respective party for which he or she signs, and that the organization on whose behalf he or she signs is currently in good standing in the jurisdiction where organized. 13. Headings. The headings of the sections of this Agreement are inserted for convenience only and will not be deemed to constitute a part of this Agreement.\n14. Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.  \n15. Delays, Omission, and Waivers. No delay or omission to exercise any right, power or remedy accruing to any party as a result of a breach or default of this Agreement will impair any such right, power or remedy of the non-defaulting party, nor will it be construed to be a waiver of any such breach or default or an acquiescence therein, nor will any similar breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring; nor will any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Agreement or any waiver on the part of any party of any provisions or conditions of this Agreement must be in writing and will be effective only to the extent specifically set forth in such writing. 16. Survival. This Agreement shall become effective on the date set forth above and shall continue for as long as any of the Transaction Agreements are in effect, and shall survive the termination of any of the Transaction Agreements for a term of twenty (20) years commencing on the date that the last Transaction Agreement expires or is terminated. [Remainder of page intentionally left blank. Signature page follows.]  \nIN WITNESS WHEREQF, the parties hereto have caused this Agreement to be executed and delivered by their duly authorized representative as of the date and year set forth above. CORGENIX MEDICAL CORPORATION\nBy: Douglass T. Simpson\nTitle: President and Chief Executive Officer\nAddress for notices:\nAttention: President\n11575 Main Street, Suite 400\nBroomfield, Colorado 80020\nFacsimile: (303) 453-8896\nEmail: Dsimpson@corgenix.com\nCORGENIX U.K. LTD.\nBy: Douglass T. Simpson\nTitle: Director\nAddress for notices:\n40 Commerce Road\nLynch Wood\nPeterborough PE2 6LR\nUnited Kingdom\nFax +44 (0) 1733 238412\nEmail: Dsimpson@corgenix.com\nFINANCIERE ELITECH SAS\nBy: Pierre Debiais\nTitle: President\nAddress for notices:\nAttention: Pierre Debiais\n12-12 bis, rue Jean Jaures\n92800 Puteaux\nFrance\nFacsimile: +33 (1) 41 45 07 19\nEmail: p.debiais@elitechgroup.com\nWESCOR, INC.\nBy: Janice Wallentine\nTitle: Chief Financial Officer\nAddress for notices:\nAttention: Michael Saunders\n370 West 1700 South\nLogan, Utah 84321\nFacsimile: (425) 752-4127\nEmail: m.saunders@elitechgroup.com\nSignature Page — Mutual Confidentiality Agreement\n1\n \nELITECH UK LIMITED\nBy: Tim Watson\nTitle: ~ Managing Director\nAddress for notices:\nAttention: Tim Watson\nUnit 6, River Park Industrial Estate\nBillet Lane\nBerkhamsted HP4 1HL\nEngland\nFacsimile: +44 144 287 6774\nEmail: tim@elitechuk.com\nSignature Page — Mutual Confidentiality Agreement\n2\n	EX-10.3 a10-14025_1ex10d3.htm EX-10.3\nExhibit 10.3\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement (this "Agreement"), dated as of July 16, 2010, is entered into by and among Financiere Elitech\nSAS, a societe par actions simplifiee organized under the laws of France ("Elitech"), Wescor, Inc., a Utah corporation ("Wescor"), Elitech UK\nLimited, a private limited company organized under the laws of the United Kingdom ("Elitech UK" and, collectively with Elitech and Wescor,\nthe "Elitech Group"), Corgenix Medical Corporation, a Nevada corporation ("Corgenix"), and Corgenix U.K. Ltd., a private limited company\norganized under the laws of the United Kingdom ("Corgenix U.K." and, collectively with Corgenix, the "Corgenix Group").\nPRELIMINARY STATEMENTS\nA.\nThe Elitech Group and the Corgenix Group desire to enter into a commercial relationship with each other, either directly or\nthrough their respective Affiliates (as defined below), specifically: (1) that certain Common Stock Purchase Agreement by and among Corgenix,\nElitech and Wescor (the "SPA"); (2) that certain Master Distribution Agreement by and between Corgenix and Elitech UK (the "MDA"); and\n(3) that certain Joint Product Development Agreement by and between Corgenix and Elitech (the "JPDA" and, collectively with the SPA and the\nMDA, the "Transaction Agreements").\nB.\nIn order for the Corgenix Group and the Elitech Group to enter into the proposed commercial relationship, it is necessary for\nthe parties to disclose certain valuable proprietary information to each other and ensure that such proprietary information will be treated as\nconfidential.\nC.\nEach of Corgenix, Corgenix U.K., Elitech, Wescor and Elitech UK, on behalf of itself and its respective Affiliates, agrees and\nacknowledges that any Confidential Information (as defined below) that it receives from a disclosing party must be kept confidential in\naccordance with the terms and conditions of this Agreement.\nAGREEMENT\nThe parties, intending to be legally bound, agree as follows:\n1.\nDefinitions. For purposes of this Agreement the following terms shall have the meanings set forth below:\na. The term "documents" means form or medium in which Confidential Information may be produced, including, but not be\nlimited to, writings, spreadsheets, presentations, web pages, emails, voicemails, drawings, graphs, charts, photographs, sound\nrecordings, optical or magnetic discs and data compilations in whatever form recorded or stored from which information can be\nobtained and/or translated, if necessary, into reasonably usable form, and any reproductions thereof.\n1\nb. The term "Confidential Information" means any and all information, tangible or intangible, in whatever form or medium\nprovided or obtained by any receiving party or such party's representatives, directly or indirectly, including all documents and\ninformation generated by a disclosing party or its representatives that contains, reflects or is derived from such information,\nwhether orally, in writing, in documents, through or by observation or otherwise, in any way relating to the Transaction\nAgreements and the transactions contemplated in such Transaction Agreements, including, but not limited to, information\nabout existing or contemplated products, services, client lists, marketing techniques, pricing policies, financial information,\nresearch and development techniques and processes, manufacturing processes, sales processes, bidding and tender processes,\ncosts, profits, sales, markets and all other data and intellectual property related thereto.\nNotwithstanding the foregoing, information shall not be considered Confidential Information for purposes of this Agreement if:\n(a) a receiving party or its Affiliates already possesses the information without an obligation of confidentiality at the time of\ndisclosure as verified by independent written files or records; (b) the information is or becomes part of the public domain other\nthan as a result of unauthorized disclosure by a receiving party or its Affiliates of such information; (c) the information has\nbeen or is made available to a receiving party or its Affiliates by a third party that, to the receiving party's or its Affiliates' best\nknowledge, is not under an obligation of confidentiality to the disclosing party or its Affiliates; or (d) the information is\nindependently developed by a receiving party or its Affiliates prior to such information being disclosed by a disclosing party,\nas\nverified by independent written files or records.\nC.\nThe term "Affiliate" means with respect to any person, any other person that, directly or indirectly, controls, is controlled by,\nor is under a common control with, such first person. The term "control" including the terms "controlled by" and "under a\ncommon control with" (as used in the preceding sentence) means the possession, directly or indirectly, of the power to direct or\ncause the direction of management and policies of the person, whether through the ownership of securities, by contract or\notherwise.\n2.\nConfidentiality. With respect to the Confidential Information, the Elitech Group and its Affiliates (on the one hand), and the\nCorgenix Group and its Affiliates (on the other hand), shall: (a) restrict disclosure of the Confidential Information solely to those of their\nrespective employees, Affiliates, advisors or representatives with a need to know; (b) advise their respective employees, Affiliates, advisors or\nrepresentatives who receive the Confidential Information of the obligation of confidentiality hereunder; (c) use, and advise their respective\nemployees, Affiliates, advisors or representatives to use, the same degree of care to protect the Confidential Information and to prevent\ndisclosure of the Confidential Information as is used with the party's own confidential information, which shall be at least the degree of care that\na reasonably prudent person would take to protect and prevent disclosure of confidential\n2\ninformation; and (d) use the Confidentia Information only for purposes of carrying out their respective obligations under the Transaction\nAgreements.\n3.\nCompliance with Laws. If any party to this Agreement or its Affiliates, as the case may be, becomes legally compelled\n(including pursuant to any rule or regulation promulgated by any securities regulation authority or any securities exchange) to make any\ndisclosure that is prohibited or otherwise constrained by this Agreement, then such party will give, or will cause its Affiliate to give, the other\nparties immediate written notice of such requirement so that they may seek a protective order or other appropriate relief, or waive compliance\nwith the nondisclosure provisions of this Agreement. Subject to the foregoing, the party that is legally compelled to disclose Confidential\nInformation may make only such disclosure that it is legally compelled or otherwise required to make to avoid standing liable for contempt\nor\nsuffering other material censure or penalty; provided, however, that such party and its Affiliates must use reasonable efforts to obtain reliable\nassurance that confidential treatment will be accorded any Confidential Information so disclosed.\n4.\nReturn of Documents. Upon the request of Corgenix, on the one hand, or Elitech, on the other hand, the other party shall\nreturn, or shall cause its Affiliates to return, as the case may be, all documents containing the requesting party's Confidential Information,\nwithout retaining any copies or other reproductions, in whole or in part, except for one copy of such documents or records retained in confidence\nby the other party's counsel solely for the purpose of any dispute or anticipated dispute arising out of the discussions or use of the Confidential\nInformation.\n5.\nBreach. If the Corgenix Group or its Affiliates, on the one hand, or the Elitech Group or its Affiliates, on the other hand,\nbreaches its obligations under this Agreement, the other party shall have available to it all its rights and remedies at law and in equity, including\nthe right to seek injunctive relief without being required to post a bond or similar form of security, it being acknowledged and agreed by all\nparties that a breach or threatened breach of the terms of this Agreement by one party or its Affiliates may cause irreparable injury to the other\nparty or its Affiliates and that money damages will not provide an adequate remedy to such other party or its Affiliates.\n6.\nAssignment. This Agreement may not be assigned by any party hereto without the prior written consent of the other parties.\nThis\nAgreement\nshall\nbind\nand\naccrue\nto\nthe\nbenefit\nof\nthe\nparties\nhereto\nand\ntheir\nrespective\nsuccessors\nand\npermitted\nassigns.\nNotwithstanding\nthe foregoing, this Agreement may be assigned by Elitech or Corgenix to any of their respective Affiliates, provided such Affiliate existed as of\nthe date of this Agreement.\n7.\nNotices. Except as may be otherwise provided herein, all notices, requests, waivers and other communications made pursuant\nto this Agreement will be in writing and will be conclusively deemed to have been duly given (a) when hand delivered to the other parties;\n(b) when received if sent by facsimile or electronic mail to the number or the email address set forth below, provided that the sending party\nreceives a confirmation of delivery; (c) three (3) business days after deposit in the U.S. mail with first class or certified mail receipt requested\n3\npostage prepaid and addressed to the other parties as set forth below; or (d) forty-eight (48) hours after deposit with an internationally recognized\novernight delivery service, postage prepaid, addressed to the parties as set forth below with next-business-day delivery guaranteed, provided that\nthe sending party receives a confirmation of delivery from the delivery service provider. Each person making a communication hereunder by\nfacsimile or electronic mail will promptly confirm by telephone to the person to whom such communication was addressed each communication\nmade by it by facsimile or electronic mail, but the absence of such confirmation will not affect the validity of any such communication. A\nparty\nmay change or supplement the addresses, facsimile numbers and email addresses provided in its signature block below, or designate additional\naddresses, facsimile numbers or email addresses, for purposes of this Section 7 by giving the other parties written notice of the new address,\nfacsimile numbers or email addresses in the manner set forth above.\n8.\nGoverning Law. This Agreement and any controversy arising out of or relating to this Agreement will be governed by and\nconstrued in accordance with the internal laws of the State of Colorado, without regard to conflict of law principles that would result in the\napplication of any law other than the law of the State of Colorado.\n9.\nVenue. Each of the parties consents and submits to the jurisdiction of the federal courts located in the District of Colorado in\nconnection with any suits or other actions arising between the parties under this Agreement, and consents and waives any objections to the venue\nof such action or proceeding in the federal courts located in the District of Colorado.\n10.\nSeverability. If any term, provision, covenant, or condition of this Agreement, or its application to any person or\ncircumstance, will be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement and such\nterm, provision, covenant, or condition as applied to other persons or circumstances will remain in full force and effect.\n11.\nEntire Agreement; Amendments. The Transaction Agreements and this Agreement constitute the full and entire\nunderstanding and agreement among the parties with respect to the subject hereof and thereof. The provisions of this Agreement may be\namended with the prior written consent of Corgenix and Elitech.\n12.\nAuthorization. Each of the undersigned representatives of the parties warrants and represents that he or she is duly authorized\nto execute and deliver this Agreement on behalf of the respective party for which he or she signs, and that the organization on whose behalf he or\nshe signs is currently in good standing in the jurisdiction where organized.\n13.\nHeadings. The headings of the sections of this Agreement are inserted for convenience only and will not be deemed to\nconstitute a part of this Agreement.\n14.\nCounterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but\nall of which together will constitute one and the same instrument.\n4\n15. Delays, Omission, and Waivers. No delay or omission to exercise any right, power or remedy accruing to any party as a\nresult of a breach or default of this Agreement will impair any such right, power or remedy of the non-defaulting party, nor will it be construed to\nbe a waiver of any such breach or default or an acquiescence therein, nor will any similar breach or default be deemed a waiver of any other\nbreach or default theretofore or thereafter occurring; nor will any waiver of any single breach or default be deemed a waiver of any other breach\nor default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any\nbreach or default under this Agreement or any waiver on the part of any party of any provisions or conditions of this Agreement must be in\nwriting and will be effective only to the extent specifically set forth in such writing.\n16.\nSurvival. This Agreement shall become effective on the date set forth above and shall continue for as long as any of the\nTransaction Agreements are in effect, and shall survive the termination of any of the Transaction Agreements for a term of twenty (20) years\ncommencing on the date that the last Transaction Agreement expires or is terminated.\n[Remainder of page intentionally left blank. Signature page follows.]\n5\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered by their duly authorized\nrepresentative as of the date and year set forth above.\nCORGENIX MEDICAL CORPORATION\nFINANCIERE ELITECH SAS\nBy:\nDouglass T. Simpson\nBy:\nPierre Debiais\nTitle: President and Chief Executive Officer\nTitle: President\nAddress for notices:\nAddress for notices:\nAttention: President\nAttention: Pierre Debiais\n11575 Main Street, Suite 400\n12-12 bis, rue Jean Jaures\nBroomfield, Colorado 80020\n92800 Puteaux\nFacsimile: (303) 453-8896\nFrance\nEmail: Dsimpson@corgenix.com\nFacsimile: +33 (1) 41 45 07 19\nEmail: p.debiais@elitechgroup.com\nCORGENIX U.K. LTD.\nWESCOR, INC.\nBy:\nDouglass T. Simpson\nBy:\nJanice Wallentine\nTitle: Director\nTitle: Chief Financial Officer\nAddress for notices:\nAddress for notices:\n40 Commerce Road\nAttention: Michael Saunders\nLynch Wood\n370 West 1700 South\nPeterborough PE2 6LR\nLogan, Utah 84321\nUnited Kingdom\nFacsimile: (425) 752-4127\nFax +44 (0) 1733 238412\nEmail: m.saunders@elitechgroup.com\nEmail: Dsimpson@corgenix.com\nSignature Page - Mutual Confidentiality Agreement\n1\nELITECH UK LIMITED\nBy:\nTim Watson\nTitle:\nManaging Director\nAddress for notices:\nAttention: Tim Watson\nUnit 6, River Park Industrial Estate\nBillet Lane\nBerkhamsted HP4 1HL\nEngland\nFacsimile: +44 144 287 6774\nEmail: tim@elitechuk.com\nSignature Page - Mutual Confidentiality Agreement\n2	EX-10.3 5 a10-14025_1ex10d3.htm EX-10.3\nExhibit 10.3\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement (this “ Agreement”), dated as of July 16, 2010, is entered into by and among Financière Elitech\nSAS, a société par actions simplifiée organized under the laws of France (“Elitech”), Wescor, Inc., a Utah corporation (“Wescor”), Elitech UK\nLimited, a private limited company organized under the laws of the United Kingdom (“Elitech UK” and, collectively with Elitech and Wescor,\nthe “Elitech Group”), Corgenix Medical Corporation, a Nevada corporation (“Corgenix”), and Corgenix U.K. Ltd., a private limited company\norganized under the laws of the United Kingdom (“Corgenix U.K.” and, collectively with Corgenix, the “Corgenix Group”).\nPRELIMINARY STATEMENTS\nA.\nThe Elitech Group and the Corgenix Group desire to enter into a commercial relationship with each other, either directly or\nthrough their respective Affiliates (as defined below), specifically: (1) that certain Common Stock Purchase Agreement by and among Corgenix,\nElitech and Wescor (the “SPA”); (2) that certain Master Distribution Agreement by and between Corgenix and Elitech UK (the “MDA”); and\n(3) that certain Joint Product Development Agreement by and between Corgenix and Elitech (the “JPDA” and, collectively with the SPA and the\nMDA, the “Transaction Agreements”).\nB.\nIn order for the Corgenix Group and the Elitech Group to enter into the proposed commercial relationship, it is necessary for\nthe parties to disclose certain valuable proprietary information to each other and ensure that such proprietary information will be treated as\nconfidential.\nC.\nEach of Corgenix, Corgenix U.K., Elitech, Wescor and Elitech UK, on behalf of itself and its respective Affiliates, agrees and\nacknowledges that any Confidential Information (as defined below) that it receives from a disclosing party must be kept confidential in\naccordance with the terms and conditions of this Agreement.\nAGREEMENT\nThe parties, intending to be legally bound, agree as follows:\n1.\nDefinitions. For purposes of this Agreement the following terms shall have the meanings set forth below:\na. The term “documents” means form or medium in which Confidential Information may be produced, including, but not be\nlimited to, writings, spreadsheets, presentations, web pages, emails, voicemails, drawings, graphs, charts, photographs, sound\nrecordings, optical or magnetic discs and data compilations in whatever form recorded or stored from which information can be\nobtained and/or translated, if necessary, into reasonably usable form, and any reproductions thereof.\n1\nb. The term “Confidential Information” means any and all information, tangible or intangible, in whatever form or medium\nprovided or obtained by any receiving party or such party’s representatives, directly or indirectly, including all documents and\ninformation generated by a disclosing party or its representatives that contains, reflects or is derived from such information,\nwhether orally, in writing, in documents, through or by observation or otherwise, in any way relating to the Transaction\nAgreements and the transactions contemplated in such Transaction Agreements, including, but not limited to, information\nabout existing or contemplated products, services, client lists, marketing techniques, pricing policies, financial information,\nresearch and development techniques and processes, manufacturing processes, sales processes, bidding and tender processes,\ncosts, profits, sales, markets and all other data and intellectual property related thereto.\nNotwithstanding the foregoing, information shall not be considered Confidential Information for purposes of this Agreement if:\n(a) a receiving party or its Affiliates already possesses the information without an obligation of confidentiality at the time of\ndisclosure as verified by independent written files or records; (b) the information is or becomes part of the public domain other\nthan as a result of unauthorized disclosure by a receiving party or its Affiliates of such information; (c) the information has\nbeen or is made available to a receiving party or its Affiliates by a third party that, to the receiving party’s or its Affiliates’ best\nknowledge, is not under an obligation of confidentiality to the disclosing party or its Affiliates; or (d) the information is\nindependently developed by a receiving party or its Affiliates prior to such information being disclosed by a disclosing party, as\nverified by independent written files or records.\nc. The term “Affiliate” means with respect to any person, any other person that, directly or indirectly, controls, is controlled by,\nor is under a common control with, such first person. The term “control” including the terms “controlled by” and “under a\ncommon control with” (as used in the preceding sentence) means the possession, directly or indirectly, of the power to direct or\ncause the direction of management and policies of the person, whether through the ownership of securities, by contract or\notherwise.\n2.\nConfidentiality. With respect to the Confidential Information, the Elitech Group and its Affiliates (on the one hand), and the\nCorgenix Group and its Affiliates (on the other hand), shall: (a) restrict disclosure of the Confidential Information solely to those of their\nrespective employees, Affiliates, advisors or representatives with a need to know; (b) advise their respective employees, Affiliates, advisors or\nrepresentatives who receive the Confidential Information of the obligation of confidentiality hereunder; (c) use, and advise their respective\nemployees, Affiliates, advisors or representatives to use, the same degree of care to protect the Confidential Information and to prevent\ndisclosure of the Confidential Information as is used with the party’s own confidential information, which shall be at least the degree of care that\na reasonably prudent person would take to protect and prevent disclosure of confidential\n2\ninformation; and (d) use the Confidential Information only for purposes of carrying out their respective obligations under the Transaction\nAgreements.\n3.\nCompliance with Laws. If any party to this Agreement or its Affiliates, as the case may be, becomes legally compelled\n(including pursuant to any rule or regulation promulgated by any securities regulation authority or any securities exchange) to make any\ndisclosure that is prohibited or otherwise constrained by this Agreement, then such party will give, or will cause its Affiliate to give, the other\nparties immediate written notice of such requirement so that they may seek a protective order or other appropriate relief, or waive compliance\nwith the nondisclosure provisions of this Agreement. Subject to the foregoing, the party that is legally compelled to disclose Confidential\nInformation may make only such disclosure that it is legally compelled or otherwise required to make to avoid standing liable for contempt or\nsuffering other material censure or penalty; provided, however, that such party and its Affiliates must use reasonable efforts to obtain reliable\nassurance that confidential treatment will be accorded any Confidential Information so disclosed.\n4.\nReturn of Documents. Upon the request of Corgenix, on the one hand, or Elitech, on the other hand, the other party shall\nreturn, or shall cause its Affiliates to return, as the case may be, all documents containing the requesting party’s Confidential Information,\nwithout retaining any copies or other reproductions, in whole or in part, except for one copy of such documents or records retained in confidence\nby the other party’s counsel solely for the purpose of any dispute or anticipated dispute arising out of the discussions or use of the Confidential\nInformation.\n5.\nBreach. If the Corgenix Group or its Affiliates, on the one hand, or the Elitech Group or its Affiliates, on the other hand,\nbreaches its obligations under this Agreement, the other party shall have available to it all its rights and remedies at law and in equity, including\nthe right to seek injunctive relief without being required to post a bond or similar form of security, it being acknowledged and agreed by all\nparties that a breach or threatened breach of the terms of this Agreement by one party or its Affiliates may cause irreparable injury to the other\nparty or its Affiliates and that money damages will not provide an adequate remedy to such other party or its Affiliates.\n6.\nAssignment. This Agreement may not be assigned by any party hereto without the prior written consent of the other parties.\nThis Agreement shall bind and accrue to the benefit of the parties hereto and their respective successors and permitted assigns. Notwithstanding\nthe foregoing, this Agreement may be assigned by Elitech or Corgenix to any of their respective Affiliates, provided such Affiliate existed as of\nthe date of this Agreement.\n7.\nNotices. Except as may be otherwise provided herein, all notices, requests, waivers and other communications made pursuant\nto this Agreement will be in writing and will be conclusively deemed to have been duly given (a) when hand delivered to the other parties;\n(b) when received if sent by facsimile or electronic mail to the number or the email address set forth below, provided that the sending party\nreceives a confirmation of delivery; (c) three (3) business days after deposit in the U.S. mail with first class or certified mail receipt requested\n3\npostage prepaid and addressed to the other parties as set forth below; or (d) forty-eight (48) hours after deposit with an internationally recognized\novernight delivery service, postage prepaid, addressed to the parties as set forth below with next-business-day delivery guaranteed, provided that\nthe sending party receives a confirmation of delivery from the delivery service provider. Each person making a communication hereunder by\nfacsimile or electronic mail will promptly confirm by telephone to the person to whom such communication was addressed each communication\nmade by it by facsimile or electronic mail, but the absence of such confirmation will not affect the validity of any such communication. A party\nmay change or supplement the addresses, facsimile numbers and email addresses provided in its signature block below, or designate additional\naddresses, facsimile numbers or email addresses, for purposes of this Section 7 by giving the other parties written notice of the new address,\nfacsimile numbers or email addresses in the manner set forth above.\n8.\nGoverning Law. This Agreement and any controversy arising out of or relating to this Agreement will be governed by and\nconstrued in accordance with the internal laws of the State of Colorado, without regard to conflict of law principles that would result in the\napplication of any law other than the law of the State of Colorado.\n9.\nVenue. Each of the parties consents and submits to the jurisdiction of the federal courts located in the District of Colorado in\nconnection with any suits or other actions arising between the parties under this Agreement, and consents and waives any objections to the venue\nof such action or proceeding in the federal courts located in the District of Colorado.\n10.\nSeverability. If any term, provision, covenant, or condition of this Agreement, or its application to any person or\ncircumstance, will be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement and such\nterm, provision, covenant, or condition as applied to other persons or circumstances will remain in full force and effect.\n11.\nEntire Agreement; Amendments. The Transaction Agreements and this Agreement constitute the full and entire\nunderstanding and agreement among the parties with respect to the subject hereof and thereof. The provisions of this Agreement may be\namended with the prior written consent of Corgenix and Elitech.\n12.\nAuthorization. Each of the undersigned representatives of the parties warrants and represents that he or she is duly authorized\nto execute and deliver this Agreement on behalf of the respective party for which he or she signs, and that the organization on whose behalf he or\nshe signs is currently in good standing in the jurisdiction where organized.\n13.\nHeadings. The headings of the sections of this Agreement are inserted for convenience only and will not be deemed to\nconstitute a part of this Agreement.\n14.\nCounterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but\nall of which together will constitute one and the same instrument.\n4\n15.\nDelays, Omission, and Waivers. No delay or omission to exercise any right, power or remedy accruing to any party as a\nresult of a breach or default of this Agreement will impair any such right, power or remedy of the non-defaulting party, nor will it be construed to\nbe a waiver of any such breach or default or an acquiescence therein, nor will any similar breach or default be deemed a waiver of any other\nbreach or default theretofore or thereafter occurring; nor will any waiver of any single breach or default be deemed a waiver of any other breach\nor default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any\nbreach or default under this Agreement or any waiver on the part of any party of any provisions or conditions of this Agreement must be in\nwriting and will be effective only to the extent specifically set forth in such writing.\n16.\nSurvival. This Agreement shall become effective on the date set forth above and shall continue for as long as any of the\nTransaction Agreements are in effect, and shall survive the termination of any of the Transaction Agreements for a term of twenty (20) years\ncommencing on the date that the last Transaction Agreement expires or is terminated.\n[Remainder of page intentionally left blank. Signature page follows.]\n5\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered by their duly authorized\nrepresentative as of the date and year set forth above.\nCORGENIX MEDICAL CORPORATION\nFINANCIÈRE ELITECH SAS\nBy: Douglass T. Simpson\nBy: Pierre Debiais\nTitle: President and Chief Executive Officer\nTitle: President\nAddress for notices:\nAddress for notices:\nAttention: President\n11575 Main Street, Suite 400\nBroomfield, Colorado 80020\nFacsimile: (303) 453-8896\nEmail: Dsimpson@corgenix.com\nAttention: Pierre Debiais\n12-12 bis, rue Jean Jaurès\n92800 Puteaux\nFrance\nFacsimile: +33 (1) 41 45 07 19\nEmail: p.debiais@elitechgroup.com\nCORGENIX U.K. LTD.\nWESCOR, INC.\nBy: Douglass T. Simpson\nBy: Janice Wallentine\nTitle: Director\nTitle: Chief Financial Officer\nAddress for notices:\nAddress for notices:\n40 Commerce Road\nLynch Wood\nPeterborough PE2 6LR\nUnited Kingdom\nFax +44 (0) 1733 238412\nEmail: Dsimpson@corgenix.com\nAttention: Michael Saunders\n370 West 1700 South\nLogan, Utah 84321\nFacsimile: (425) 752-4127\nEmail: m.saunders@elitechgroup.com\nSignature Page — Mutual Confidentiality Agreement\n1\nELITECH UK LIMITED\nBy:\nTim Watson\nTitle: Managing Director\nAddress for notices:\nAttention: Tim Watson\nUnit 6, River Park Industrial Estate\nBillet Lane\nBerkhamsted HP4 1HL\nEngland\nFacsimile: +44 144 287 6774\nEmail: tim@elitechuk.com\nSignature Page — Mutual Confidentiality Agreement\n2
0d4e4c8a5a981d0d687abb7f43267c84.pdf	effective_date jurisdiction party term	EX-10 .3 4 a8k91114ex10d3.htm EX-10 .3\nEXHIBIT 10.3\nCONFIDENTIALITY AND INVENTIONS AGREEMENT\nThis Confidentiality and Inventions Agreement (this "Agreement"), by and between Array BioPharma Inc., a Delaware corporation\n(the "Company"), and Victor Sandor, M.D, an individual ("Employee"), is executed to be effective as of the "Effective Date" set forth\nin Section 3(j) below.\nAs a condition to, and in consideration of Employee's employment or continued employment (as the case may be) with the\nCompany, and in consideration of the mutual covenants and agreements contained herein and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:\n1. Protection of Trade Secrets and Confidential Information.\n(a) Definition of "Confidential Information." As used in this Agreement, the term "Confidential Information" shall include\nall information concerning or arising from the Company's business, including, without limitation, trade secrets used or developed by\nthe Company in connection with its business; information concerning the manner and details of the Company's operation,\norganization and management; financial information and/or documents and nonpublic policies, procedures and other printed or\nwritten material generated or used in connection with the Company's business; the Company's business plans and strategies; the\nidentities of the Company's customers and the specific individual customer representatives with whom the Company works and\ndetails of the Company's relationship with such customers and customer representatives; the identities of other persons or\ncompanies utilized in the Company's business and details of the Company's relationship with such persons or companies; the\nnature of fees and charges made to the Company's customers; nonpublic forms, contracts and other documents used in the\nCompany's business; the nature and content of computer software used in the Company's business, whether proprietary to the\nCompany or used by the Company under license from a third party; and/or other information concerning know-how, research,\ninventions, copyrights, trademarks, patent applications, patents, processes, designs, technical specifications, methods, concepts,\nprospects, customers, employees, contractors, earnings, products, services, formulas, compositions, machines, equipment,\nsystems, and/or prospective and executed contracts and other business arrangements. As used in this Agreement, "Company"\nincludes any direct or indirect subsidiary or affiliate of the Company.\nConfidential Information under this agreement shall not include information which (i) Employee can demonstrate\nwas in Employee's possession prior to employment with the Company (unless such information is assigned to, or otherwise\nbecomes the property of, the Company or (ii) is now in the public domain, or hereafter enters the public domain through no violation\nby Employee of the obligations hereunder or any other obligation of confidentiality, or (iii) is lawfully obtained from a source (other\nthan the Company, its affiliates or representatives) in accordance with the terms and conditions, if any, imposed upon Employee by\nsuch source respecting the use and disclosure thereof; provided, however, that such source was not at the time bound by a\nconfidentiality agreement with the Company or any of its affiliates or representatives. Confidential Information shall also not include\ngeneric information, knowledge or skill which Employee reasonably would have learned or acquired in the course of similar\nemployment or work elsewhere in the trade.\n(b) Restrictions on Employee's Use of Confidential Information. Except in connection with and in furtherance of\nEmployee's official duties with and on behalf of the Company, Employee shall not at any time or in any manner use, copy, disclose,\ndivulge, transmit, convey, transfer or otherwise communicate any Confidential Information to any person or entity, either directly or\nindirectly, without the Company's prior written consent.\n(c) Acknowledgment. Employee acknowledges that during the term of this Agreement, Employee will have access to\nConfidential Information, all of which shall be made accessible to Employee only in strict confidence; that unauthorized disclosure of\nConfidential Information will damage the Company's business; that Confidential Information would be susceptible to immediate\ncompetitive application by a competitor of the Company; that the Company's business is substantially dependent on access to and\nthe continuing secrecy of Confidential Information; that Confidential Information is unique and proprietary to the Company and\nknown only to Employee, the Company and certain key employees and contractors of the Company; and that title, ownership,\npossession and control of Confidential Information shall at all times remain vested in the Company. Consequently, Employee\nacknowledges that the restrictions contained in this Section 1 are reasonable and necessary for the protection of the Company's\nbusiness.\n(d) Documents and Other Records Containing Confidential Information. All documents or other records containing or\nalluding to Confidential Information that are prepared by or provided to Employee during the term of this Agreement or that come\ninto Employee's possession in connection with Employee's performance of services for the Company are and shall remain the\nCompany's property. Employee shall not copy or use any such documents or Confidential Information for any purpose not relating\ndirectly to Employee's performance of services for the Company, nor shall Employee market or in any way provide or make\navailable to any party other than the Company any of the Confidential Information, except pursuant to prior written authorization\nfrom the Company. Upon the termination of this Agreement for any reason and regardless of the circumstances of such termination\nor the existence of any dispute between Employee and the Company following or concerning the termination of Employee's\nemployment, or upon the request of the Company, its successors or assigns, Employee shall immediately deliver to the Company or\nits designee (and will not keep in Employee's possession or deliver to anyone else, including any copies) any and all devices,\nrecords, data, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment,\nother documents or property, or reproductions of any aforementioned items belonging to the Company, its successors or assigns.\nNotwithstanding any other provision of this Agreement, this Agreement shall not bar Employee from complying with any subpoena\nor court order, provided that prior to doing so Employee shall give the Company written notice, at the Company's principal place of\nbusiness, of Employee's receipt of any such subpoena or court order as far as possible in advance of the appearance time set forth\nin the subpoena or court order.\n(e) Third-Parties' Confidential Information. Employee acknowledges that the Company has received and in the future\nwill receive from third parties confidential or proprietary information, and that the Company must maintain the confidentiality of such\ninformation and use it only for proper purposes. Employee shall not use or disclose any such information except as permitted by the\nCompany or the third party to whom the information belongs.\n(f) Other Agreements. Employee represents to the Company that, except as identified on Schedule A hereto, Employee\nis not bound by any agreement or any other previous or existing business relationship which conflicts with or prevents the full\nperformance of any of Employee's obligations to the Company. During Employee's employment with the Company, Employee\nagrees not to improperly use or disclose any proprietary information or trade secrets of any former or concurrent employer, or any\nother person or entity with whom Employee has an agreement or to whom Employee owes a duty to keep such information in\nconfidence. Any such persons or entities with whom Employee has such agreements or to whom Employee owes such a duty are\nidentified on Schedule A.\n2. Inventions.\n(a) Disclosure. Employee agrees to disclose promptly to the Company the full details of any and all ideas, processes,\ntrademarks and service marks, technical data, know-how, works, inventions, discoveries, marketing and business ideas, and\nimprovements or enhancements to any of the foregoing, including all information necessary to enable the Company to reproduce\nany of the foregoing, (collectively, "Inventions"), that Employee conceives, develops or creates alone or with the aid of others during\nthe term of Employee's employment with the Company (whether or not conceived, developed or created during regular working\nhours) that: (i) relate to the Company's business; (ii) result from any work performed by Employee for the Company; (iii) involve the\nuse of the Company's equipment, supplies, facilities, or trade secret information; (iv) result from or are suggested by any work done\nat the Company's request or by any Company employee other than Employee, or relate to any problems specifically assigned to\nEmployee; or (v) result from Employee's access to any of the Company's memoranda, notes, records, drawings, sketches, models,\nmaps, customer lists, research results, data, formula, specifications, inventions, processes, equipment, or the like.\nInventions under this Agreement shall not include any invention that i) was developed on Employee's own time; ii)\nwas developed without the use of the Company's equipment, supplies, facilities, or Confidential Information; and iii) does not relate\nto the business of the Company.\n(b) Assignment. Employee shall assign and hereby assigns to the Company, without further consideration, Employee's\nentire right to any Invention which shall be the sole and exclusive property of the Company whether or not patentable. Employee\nacknowledges also that all Inventions which are made by Employee (solely or jointly with others), within the scope of Employee's\nemployment, and which are protectable by copyright, are "works made for hire," as that term is defined in the United States\nCopyright Act (17 U.S . C. § 101). To the extent that any such Inventions, by operation of law, cannot be "works made for hire,"\nEmployee hereby assigns to the Company all right, title, and interest in and to such Inventions and to any related copyrights.\n3. General Provisions.\n(a) Additional Instruments. Employee shall execute, acknowledge and deliver any additional instruments or documents\nthat the Company deems necessary to carry out the intentions of this Agreement, including such instruments as may be required by\nthe laws of any jurisdiction, now in effect or hereinafter enacted, that may affect the Company's property rights relating to the rights\nand obligations created by this Agreement. Employee further agrees, as to all the Inventions, to assist the Company in every way\n(at the Company's expense) to obtain and, from time to time, enforce patents on the Inventions in any and all countries. To that end,\nby way of illustration but not limitation, Employee will testify in any suit or other proceeding involving any of the Inventions, execute\nall documents which the Company reasonably determines to be necessary or convenient for use in applying for and obtaining\npatents thereon and enforcing same, and execute all necessary assignments thereof to the Company or persons designated by it.\nEmployee's obligation to assist the Company in obtaining and enforcing patents for the Inventions in any and all countries shall\ncontinue beyond the termination of Employee's employment, but the Company shall compensate Employee at a reasonable rate\nafter such termination for time actually spent by Employee at the Company's request on such assistance. In the event the Company\nis unable, after reasonable effort, to secure Employee's signature on any document or documents needed to apply for or prosecute\nany patent, copyright or other right or protection relating to any Invention, whether because of Employee's physical or mental\nincapacity or for any other reason whatsoever, Employee hereby irrevocably designates and appoints the Company and its duly\nauthorized officers and agents as Employee's agent and attorney-in-fact, to act for and in Employee's behalf and stead to execute\nand file any such application or applications and to do all other lawfully permitted acts to further the prosecution and issuance of\npatents, copyrights or similar protections thereon with the same legal force and effect as if executed by Employee.\n(b) Remedies. Employee acknowledges that upon a breach of this Agreement the Company will suffer immediate and\nirreparable harm and damage for which money alone cannot fully compensate the Company. Employee therefore agrees that upon\nsuch breach or threat of imminent breach of this Agreement, the Company shall be entitled to a temporary restraining order,\npreliminary injunction, permanent injunction or other injunctive relief, without posting any bond or other security, barring Employee\nfrom violating any provision of this Agreement. At the Company's option, any action to enforce this Agreement shall be brought in or\ntransferred to the state or federal court situated in Boulder, Colorado. Nothing in this Agreement shall be construed as an election of\nany remedy, or as a waiver of any right available to the Company under this Agreement or the law, including the right to seek\ndamages from Employee for a breach of any provision of this Agreement.\n(c) Non-Solicitation of Employees. Employee agrees that during the term of employment and for a period of two years\nafter the termination or cessation of employment for any reason, Employee shall not directly or indirectly recruit, solicit or hire any\nemployee of the Company, or induce or attempt to induce any employee of the Company to discontinue his or her employment\nrelationship with the Company.\n(d) Not an Employment Contract. Employee agrees and understands that nothing in this Agreement shall confer any\nright with respect to continuation of employment by the Company, nor shall it interfere in any way with Employee's right or the\nCompany's right to terminate Employee's employment at any time, with or without cause.\n(e) Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by and construed according to\nthe laws of the State of Colorado. Employee hereby expressly consents to the personal jurisdiction of the state and federal courts\nlocated in Colorado for any lawsuit filed there against Employee by the Company arising from or relating to this Agreement.\n(f) Entire Agreement. This Agreement sets forth the final, complete and exclusive agreement and understanding\nbetween the Company and Employee relating to the subject matter hereof. No modification of or amendment to this Agreement, nor\nany waiver of any rights under this Agreement, will be effective unless in writing signed by the party to be charged. No subsequent\nchange or changes in Employee's duties, salary or compensation will affect the validity or scope of this Agreement.\n(g) Severability. If one or more of the provisions in this Agreement are deemed unenforceable by law, then the remaining\nprovisions will continue in full force and effect.\n(h) Survival. The provisions of this Agreement shall survive the termination of Employee's employment for any reason\nand the assignment of this Agreement by the Company to any successor in interest or other assignee.\n(i) Waiver. No waiver by the Company of any breach of this Agreement shall be a waiver of any preceding or succeeding\nbreach. No waiver by the Company of any right under this Agreement shall be construed as a waiver of any other right.\n(j) Effective Date. This Agreement is effective as of the first day of Employee's employment with the Company. Employee\nunderstands that this Agreement affects Employee's rights to works and inventions Employee develops during Employee's\nemployment with the Company and restricts Employee's ability to disclose or use Confidential Information.\n[signature page follows]\nIN WITNESS WHEREOF, the parties have executed this agreement to be effective as of the Effective Date.\nCOMPANY:\nARRAY BIOPHARMA, INC., a Delaware corporation\nBy: /s/ Ron Squarer\nName: Ron Squarer\nTitle: Chief Executive Officer\nI HAVE READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND I UNDERSTAND, AND AGREE TO, EACH OF\nSUCH PROVISIONS. I UNDERSTAND THAT THIS AGREEMENT MAY AFFECT MY RIGHT TO ACCEPT EMPLOYMENT WITH\nOTHER COMPANIES SUBSEQUENT TO MY EMPLOYMENT WITH THE COMPANY.\nEMPLOYEE:\nBy: /s/ Victor Sandor\nVictor Sandor, M.D	EX-10.3 4 a8k91114ex10d3.htm EX-10.3\nEXHIBIT 10.3\nCONFIDENTIALITY AND INVENTIONS AGREEMENT\nThis Confidentiality and Inventions Agreement (this "Agreement"), by and between Array BioPharma Inc., a Delaware corporation\n(the "Company"), and Victor Sandor, M.D, an individual ("Employee"), is executed to be effective as of the "Effective Date" set forth\nin Section 3(j) below.\nAs a condition to, and in consideration of Employee's employment or continued employment (as the case may be) with the\nCompany, and in consideration of the mutual covenants and agreements contained herein and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:\n1. Protection of Trade Secrets and Confidential Information.\n(a) Definition of "Confidential Information." As used in this Agreement, the term "Confidential Information" shall include\nall information concerning or arising from the Company's business, including, without limitation, trade secrets used or developed by\nthe Company in connection with its business; information concerning the manner and details of the Company's operation,\norganization and management; financial information and/or documents and nonpublic policies, procedures and other printed or\nwritten material generated or used in connection with the Company's business; the Company's business plans and strategies; the\nidentities of the Company's customers and the specific individual customer representatives with whom the Company works and\ndetails of the Company's relationship with such customers and customer representatives; the identities of other persons or\ncompanies utilized in the Company's business and details of the Company's relationship with such persons or companies; the\nnature of fees and charges made to the Company's customers; nonpublic forms, contracts and other documents used in the\nCompany's business; the nature and content of computer software used in the Company's business, whether proprietary to the\nCompany or used by the Company under license from a third party; and/or other information concerning know-how, research,\ninventions, copyrights, trademarks, patent applications, patents, processes, designs, technical specifications, methods, concepts,\nprospects, customers, employees, contractors, earnings, products, services, formulas, compositions, machines, equipment,\nsystems, and/or prospective and executed contracts and other business arrangements. As used in this Agreement, "Company"\nincludes any direct or indirect subsidiary or affiliate of the Company.\nConfidential Information under this agreement shall not include information which (i) Employee can demonstrate\nwas in Employee's possession prior to employment with the Company (unless such information is assigned to, or otherwise\nbecomes the property of, the Company or (ii) is now in the public domain, or hereafter enters the public domain through no violation\nby Employee of the obligations hereunder or any other obligation of confidentiality, or (iii) is lawfully obtained from a source (other\nthan the Company, its affiliates or representatives) in accordance with the terms and conditions, if any, imposed upon Employee by\nsuch source respecting the use and disclosure thereof; provided, however, that such source was not at the time bound by a\nconfidentiality agreement with the Company or any of its affiliates or representatives. Confidential Information shall also not include\ngeneric information, knowledge or skill which Employee reasonably would have learned or acquired in the course of similar\nemployment or work elsewhere in the trade.\n(b) Restrictions on Employee's Use of Confidential Information. Except in connection with and in furtherance of\nEmployee's official duties with and on behalf of the Company, Employee shall not at any time or in any manner use, copy, disclose,\ndivulge, transmit, convey, transfer or otherwise communicate any Confidential Information to any person or entity, either directly or\nindirectly, without the Company's prior written consent.\n(c) Acknowledgment. Employee acknowledges that during the term of this Agreement, Employee will have access to\nConfidential Information, all of which shall be made accessible to Employee only in strict confidence; that unauthorized disclosure of\nConfidential Information will damage the Company's business; that Confidential Information would be susceptible to immediate\ncompetitive application by a competitor of the Company; that the Company's business is substantially dependent on access to and\nthe continuing secrecy of Confidential Information; that Confidential Information is unique and proprietary to the Company and\nknown only to Employee, the Company and certain key employees and contractors of the Company; and that title, ownership,\npossession and control of Confidential Information shall at all times remain vested in the Company. Consequently, Employee\nacknowledges that the restrictions contained in this Section 1 are reasonable and necessary for the protection of the Company's\nbusiness.\n(d) Documents and Other Records Containing Confidential Information. All documents or other records containing or\nalluding to Confidential Information that are prepared by or provided to Employee during the term of this Agreement or that come\ninto Employee's possession in connection with Employee's performance of services for the Company are and shall remain the\nCompany's property. Employee shall not copy or use any such documents or Confidential Information for any purpose not relating\ndirectly to Employee's performance of services for the Company, nor shall Employee market or in any way provide or make\navailable to any party other than the Company any of the Confidential Information, except pursuant to prior written authorization\nfrom the Company. Upon the termination of this Agreement for any reason and regardless of the circumstances of such termination\nor the existence of any dispute between Employee and the Company following or concerning the termination of Employee's\nemployment, or upon the request of the Company, its successors or assigns, Employee shall immediately deliver to the Company or\nits designee (and will not keep in Employee's possession or deliver to anyone else, including any copies) any and all devices,\nrecords, data, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment,\nother documents or property, or reproductions of any aforementioned items belonging to the Company, its successors or assigns.\nNotwithstanding any other provision of this Agreement, this Agreement shall not bar Employee from complying with any subpoena\nor court order, provided that prior to doing so Employee shall give the Company written notice, at the Company's principal place of\nbusiness, of Employee's receipt of any such subpoena or court order as far as possible in advance of the appearance time set forth\nin the subpoena or court order.\n(e) Third-Parties' Confidential Information. Employee acknowledges that the Company has received and in the future\nwill receive from third parties confidential or proprietary information, and that the Company must maintain the confidentiality of such\ninformation and use it only for proper purposes. Employee shall not use or disclose any such information except as permitted by the\nCompany or the third party to whom the information belongs.\n(f) Other Agreements. Employee represents to the Company that, except as identified on Schedule A hereto, Employee\nis not bound by any agreement or any other previous or existing business relationship which conflicts with or prevents the full\nperformance of any of Employee's obligations to the Company. During Employee's employment with the Company, Employee\nagrees not to improperly use or disclose any proprietary information or trade secrets of any former or concurrent employer, or any\nother person or entity with whom Employee has an agreement or to whom Employee owes a duty to keep such information in\nconfidence. Any such persons or entities with whom Employee has such agreements or to whom Employee owes such a duty are\nidentified on Schedule A.\n2. Inventions.\n(a) Disclosure. Employee agrees to disclose promptly to the Company the full details of any and all ideas, processes,\ntrademarks and service marks, technical data, know-how, works, inventions, discoveries, marketing and business ideas, and\nimprovements or enhancements to any of the foregoing, including all information necessary to enable the Company to reproduce\nany of the foregoing, (collectively, "Inventions"), that Employee conceives, develops or creates alone or with the aid of others during\nthe term of Employee's employment with the Company (whether or not conceived, developed or created during regular working\nhours) that: (i) relate to the Company's business; (ii) result from any work performed by Employee for the Company; (iii) involve the\nuse of the Company's equipment, supplies, facilities, or trade secret information; (iv) result from or are suggested by any work done\nat the Company's request or by any Company employee other than Employee, or relate to any problems specifically assigned to\nEmployee; or (v) result from Employee's access to any of the Company's memoranda, notes, records, drawings, sketches, models,\nmaps, customer lists, research results, data, formula, specifications, inventions, processes, equipment, or the like.\nInventions under this Agreement shall not include any invention that i) was developed on Employee's own time; ii)\nwas developed without the use of the Company's equipment, supplies, facilities, or Confidential Information; and iii) does not relate\nto the business of the Company.\n(b) Assignment. Employee shall assign and hereby assigns to the Company, without further consideration, Employee's\nentire right to any Invention which shall be the sole and exclusive property of the Company whether or not patentable. Employee\nacknowledges also that all Inventions which are made by Employee (solely or jointly with others), within the scope of Employee's\nemployment, and which are protectable by copyright, are "works made for hire," as that term is defined in the United States\nCopyright Act (17 U.S. C. § 101). To the extent that any such Inventions, by operation of law, cannot be "works made for hire,"\nEmployee hereby assigns to the Company all right, title, and interest in and to such Inventions and to any related copyrights.\n3. General Provisions.\n(@) Additional Instruments. Employee shall execute, acknowledge and deliver any additional instruments or documents\nthat the Company deems necessary to carry out the intentions of this Agreement, including such instruments as may be required by\nthe laws of any jurisdiction, now in effect or hereinafter enacted, that may affect the Company's property rights relating to the rights\nand obligations created by this Agreement. Employee further agrees, as to all the Inventions, to assist the Company in every way\n(at the Company's expense) to obtain and, from time to time, enforce patents on the Inventions in any and all countries. To that end,\nby way of illustration but not limitation, Employee will testify in any suit or other proceeding involving any of the Inventions, execute\nall documents which the Company reasonably determines to be necessary or convenient for use in applying for and obtaining\npatents thereon and enforcing same, and execute all necessary assignments thereof to the Company or persons designated by it.\nEmployee's obligation to assist the Company in obtaining and enforcing patents for the Inventions in any and all countries shall\ncontinue beyond the termination of Employee's employment, but the Company shall compensate Employee at a reasonable rate\nafter such termination for time actually spent by Employee at the Company's request on such assistance. In the event the Company\nis unable, after reasonable effort, to secure Employee's signature on any document or documents needed to apply for or prosecute\nany patent, copyright or other right or protection relating to any Invention, whether because of Employee's physical or mental\nincapacity or for any other reason whatsoever, Employee hereby irrevocably designates and appoints the Company and its duly\nauthorized officers and agents as Employee's agent and attorney-in-fact, to act for and in Employee's behalf and stead to execute\nand file any such application or applications and to do all other lawfully permitted acts to further the prosecution and issuance of\npatents, copyrights or similar protections thereon with the same legal force and effect as if executed by Employee.\n(b) Remedies. Employee acknowledges that upon a breach of this Agreement the Company will suffer immediate and\nirreparable harm and damage for which money alone cannot fully compensate the Company. Employee therefore agrees that upon\nsuch breach or threat of imminent breach of this Agreement, the Company shall be entitled to a temporary restraining order,\npreliminary injunction, permanent injunction or other injunctive relief, without posting any bond or other security, barring Employee\nfrom violating any provision of this Agreement. At the Company's option, any action to enforce this Agreement shall be brought in or\ntransferred to the state or federal court situated in Boulder, Colorado. Nothing in this Agreement shall be construed as an election of\nany remedy, or as a waiver of any right available to the Company under this Agreement or the law, including the right to seek\ndamages from Employee for a breach of any provision of this Agreement.\n(c) Non-Solicitation of Employees. Employee agrees that during the term of employment and for a period of two years\nafter the termination or cessation of employment for any reason, Employee shall not directly or indirectly recruit, solicit or hire any\nemployee of the Company, or induce or attempt to induce any employee of the Company to discontinue his or her employment\nrelationship with the Company.\n(d) Not an Employment Contract. Employee agrees and understands that nothing in this Agreement shall confer any\nright with respect to continuation of employment by the Company, nor shall it interfere in any way with Employee's right or the\nCompany's right to terminate Employee's employment at any time, with or without cause.\n(e) Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by and construed according to\nthe laws of the State of Colorado. Employee hereby expressly consents to the personal jurisdiction of the state and federal courts\nlocated in Colorado for any lawsuit filed there against Employee by the Company arising from or relating to this Agreement.\n(f) Entire Agreement. This Agreement sets forth the final, complete and exclusive agreement and understanding\nbetween the Company and Employee relating to the subject matter hereof. No modification of or amendment to this Agreement, nor\nany waiver of any rights under this Agreement, will be effective unless in writing signed by the party to be charged. No subsequent\nchange or changes in Employee's duties, salary or compensation will affect the validity or scope of this Agreement.\n(g) Severability. If one or more of the provisions in this Agreement are deemed unenforceable by law, then the remaining\nprovisions will continue in full force and effect.\n(h) Survival. The provisions of this Agreement shall survive the termination of Employee's employment for any reason\nand the assignment of this Agreement by the Company to any successor in interest or other assignee.\n(i) Waiver. No waiver by the Company of any breach of this Agreement shall be a waiver of any preceding or succeeding\nbreach. No waiver by the Company of any right under this Agreement shall be construed as a waiver of any other right.\n(j) Effective Date. This Agreement is effective as of the first day of Employee's employment with the Company. Employee\nunderstands that this Agreement affects Employee's rights to works and inventions Employee develops during Employee's\nemployment with the Company and restricts Employee's ability to disclose or use Confidential Information.\n[signature page follows]\nIN WITNESS WHEREOF, the parties have executed this agreement to be effective as of the Effective Date.\nCOMPANY:\nARRAY BIOPHARMA, INC., a Delaware corporation\nBy: /s/ Ron Squarer\nName: Ron Squarer\nTitle: Chief Executive Officer\n| HAVE READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND | UNDERSTAND, AND AGREE TO, EACH OF\nSUCH PROVISIONS. | UNDERSTAND THAT THIS AGREEMENT MAY AFFECT MY RIGHT TO ACCEPT EMPLOYMENT WITH\nOTHER COMPANIES SUBSEQUENT TO MY EMPLOYMENT WITH THE COMPANY.\nEMPLOYEE:\nBy: /s/ Victor Sandor\nVictor Sandor, M.D	EX-10.3 a8k91114ex10d3.htm EX-10.3\nEXHIBIT 10.3\nCONFIDENTIALITY AND INVENTIONS AGREEMENT\nThis Confidentiality and Inventions Agreement (this "Agreement"), by and between Array BioPharma Inc., a Delaware corporation\n(the "Company"), and Victor Sandor, M.D, an individual ("Employee"), is executed to be effective as of the "Effective Date" set forth\nin Section 3(i) below.\nAs a condition to, and in consideration of Employee's employment or continued employment (as the case may be) with the\nCompany, and in consideration of the mutual covenants and agreements contained herein and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:\n1. Protection of Trade Secrets and Confidential Information.\n(a) Definition of "Confidential Information." As used in this Agreement, the term "Confidentia Information" shall include\nall information concerning or arising from the Company's business, including, without limitation, trade secrets used or developed by\nthe Company in connection with its business; information concerning the manner and details of the Company's operation,\norganization\nand\nmanagement;\nfinancial\ninformation\nand/or\ndocuments\nand\nnonpublic\npolicies,\nprocedures\nand\nother\nprinted\nor\nwritten material generated or used in connection with the Company's business; the Company's business plans and strategies; the\nidentities of the Company's customers and the specific individual customer representatives with whom the Company works and\ndetails of the Company's relationship with such customers and customer representatives; the identities of other persons or\ncompanies utilized in the Company's business and details of the Company's relationship with such persons or companies; the\nnature of fees and charges made to the Company's customers; nonpublic forms, contracts and other documents used in the\nCompany's business; the nature and content of computer software used in the Company's business, whether proprietary to the\nCompany or used by the Company under license from a third party; and/or other information concerning know-how, research,\ninventions, copyrights, trademarks, patent applications, patents, processes, designs, technical specifications, methods, concepts,\nprospects, customers, employees, contractors, earnings, products, services, formulas, compositions, machines, equipment,\nsystems, and/or prospective and executed contracts and other business arrangements. As used in this Agreement, "Company"\nincludes any direct or indirect subsidiary or affiliate of the Company.\nConfidential Information under this agreement shall not include information which (i) Employee can demonstrate\nwas in Employee's possession prior to employment with the Company (unless such information is assigned to, or otherwise\nbecomes the property of, the Company or (ii) is now in the public domain, or hereafter enters the public domain through no violation\nby\nEmployee of the obligations hereunder or any other obligation of confidentiality, or (iii) is lawfully obtained from a source (other\nthan\nthe\nCompany,\nits\naffiliates\nor\nrepresentatives)\nin\naccordance\nwith\nthe\nterms\nand\nconditions,\nif\nany,\nimposed\nupon\nEmployee\nby\nsuch source respecting the use and disclosure thereof; provided, however, that such source was not at the time bound by a\nconfidentiality agreement with the Company or any of its affiliates or representatives. Confidential Information shal also not include\ngeneric information, knowledge or skill which Employee reasonably would have learned or acquired in the course of similar\nemployment or work elsewhere in the trade.\n(b) Restrictions on Employee's Use of Confidential Information. Except in connection with and in furtherance of\nEmployee's official duties with and on behalf of the Company, Employee shall not at any time or in any manner use, copy, disclose,\ndivulge, transmit, convey, transfer or otherwise communicate any Confidential Information to any person or entity, either directly or\nindirectly, without the Company's prior written consent.\n(c)\nAcknowledgment. Employee acknowledges that during the term of this Agreement, Employee will have access\nto\nConfidential Information, all of which shall be made accessible to Employee only in strict confidence; that unauthorized disclosure of\nConfidential Information will damage the Company's business; that Confidential Information would be susceptible to immediate\ncompetitive application by a competitor of the Company; that the Company's business is substantially dependent on access to and\nthe continuing secrecy of Confidential Information; that Confidential Information is unique and proprietary to the Company and\nknown only to Employee, the Company and certain key employees and contractors of the Company; and that title, ownership,\npossession and control of Confidential Information shall at all times remain vested in the Company. Consequently, Employee\nacknowledges that the restrictions contained in this Section 1 are reasonable and necessary for the protection of the Company's\nbusiness.\n(d) Documents and Other Records Containing Confidential Information. Al documents or other records containing or\nalluding to Confidential Information that are prepared by or provided to Employee during the term of this Agreement or that come\ninto Employee's possession in connection with Employee's performance of services for the Company are and shall remain the\nCompany's property. Employee shall not copy or use any such documents or Confidential Information for any purpose not\nrelating\ndirectly to Employee's performance of services for the Company, nor shall Employee market or in any way provide or make\navailable to any party other than the Company any of the Confidential Information, except pursuant to prior written authorization\nfrom\nthe\nCompany.\nUpon\nthe\ntermination\nof\nthis\nAgreement\nfor\nany\nreason\nand\nregardless\nof\nthe\ncircumstances\nof\nsuch\ntermination\nor the existence of any dispute between Employee and the Company following or concerning the termination of Employee's\nemployment, or upon the request of the Company, its successors or assigns, Employee shall immediately deliver to the Company or\nits\ndesignee\n(and\nwill\nnot\nkeep\nin\nEmployee's\npossession\nor\ndeliver\nto\nanyone\nelse,\nincluding\nany\ncopies)\nany\nand\nall\ndevices,\nrecords, data, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment,\nother documents or property, or reproductions of any aforementioned items belonging to the Company, its successors or assigns.\nNotwithstanding any other provision of this Agreement, this Agreement shall not bar Employee from complying with any subpoena\nor court order, provided that prior to doing so Employee shall give the Company written notice, at the Company's principal place of\nbusiness, of Employee's receipt of any such subpoena or court order as far as possible in advance of the appearance time set forth\nin the subpoena or court order.\n(e) Third-Parties' Confidential Information. Employee acknowledges that the Company has received and in the future\nwil receive from third parties confidential or proprietary information, and that the Company must maintain the confidentiality of such\ninformation and use it only for proper purposes. Employee shall not use or disclose any such information except as permitted by the\nCompany or the third party to whom the information belongs.\n(f) Other Agreements. Employee represents to the Company that, except as identified on Schedule A hereto, Employee\nis not bound by any agreement or any other previous or existing business relationship which conflicts with or prevents the full\nperformance of any of Employee's obligations to the Company. During Employee's employment with the Company, Employee\nagrees not to improperly use or disclose any proprietary information or trade secrets of any former or concurrent employer, or any\nother\nperson\nor\nentity\nwith\nwhom\nEmployee\nhas\nan\nagreement\nor\nto\nwhom\nEmployee\nowes\na\nduty\nto\nkeep\nsuch\ninformation\nin\nconfidence. Any such persons or entities with whom Employee has such agreements or to whom Employee owes such a duty are\nidentified on Schedule A.\n2. Inventions.\n(a) Disclosure. Employee agrees to disclose promptly to the Company the full details of any and all ideas, processes,\ntrademarks and service marks, technical data, know-how, works, inventions, discoveries, marketing and business ideas, and\nimprovements or enhancements to any of the foregoing, including all information necessary to enable the Company to reproduce\nany of the foregoing, (collectively, "Inventions"), that Employee conceives, develops or creates alone or with the aid of others during\nthe term of Employee's employment with the Company (whether or not conceived, developed or created during regular working\nhours)\nthat:\n(i)\nrelate\nto\nthe\nCompany's\nbusiness;\n(ii)\nresult\nfrom\nany\nwork\nperformed\nby\nEmployee\nfor\nthe\nCompany;\n(iii)\ninvolve\nthe\nuse of the Company's equipment, supplies, facilities, or trade secret information; (iv) result from or are suggested by any work done\nat the Company's request or by any Company employee other than Employee, or relate to any problems specifically assigned to\nEmployee; or (v) result from Employee's access to any of the Company's memoranda, notes, records, drawings, sketches, models,\nmaps, customer lists, research results, data, formula, specifications, inventions, processes, equipment, or the like.\nInventions under this Agreement shall not include any invention that i) was developed on Employee's own time; ii)\nwas developed without the use of the Company's equipment, supplies, facilities, or Confidential Information; and iii) does not relate\nto the business of the Company.\n(b) Assignment. Employee shall assign and hereby assigns to the Company, without further consideration, Employee's\nentire right to any Invention which shall be the sole and exclusive property of the Company whether or not patentable. Employee\nacknowledges\nalso\nthat\nall\nInventions\nwhich\nare\nmade\nby\nEmployee\n(solely\nor\njointly\nwith\nothers),\nwithin\nthe\nscope\nof\nEmployee's\nemployment, and which are protectable by copyright, are "works made for hire," as that term is defined in the United States\nCopyright Act (17 U.S. C. 8 101). To the extent that any such Inventions, by operation of law, cannot be "works made for hire,"\nEmployee hereby assigns to the Company all right, title, and interest in and to such Inventions and to any related copyrights.\n3. General Provisions.\n(a) Additional Instruments. Employee shall execute, acknowledge and deliver any additional instruments or documents\nthat the Company deems necessary to carry out the intentions of this Agreement, including such instruments as may be required by\nthe laws of any jurisdiction, now in effect or hereinafter enacted, that may affect the Company's property rights relating to the rights\nand obligations created by this Agreement. Employee further agrees, as to all the Inventions, to assist the Company in every way\n(at the Company's expense) to obtain and, from time to time, enforce patents on the Inventions in any and all countries. To that end,\nby way of illustration but not limitation, Employee will testify in any suit or other proceeding involving any of the Inventions, execute\nall documents which the Company reasonably determines to be necessary or convenient for use in applying for and obtaining\npatents thereon and enforcing same, and execute all necessary assignments thereof to the Company or persons designated by it.\nEmployee's obligation to assist the Company in obtaining and enforcing patents for the Inventions in any and all countries shall\ncontinue beyond the termination of Employee's employment, but the Company shall compensate Employee at a reasonable rate\nafter\nsuch\ntermination\nfor\ntime\nactually\nspent\nby\nEmployee\nat\nthe\nCompany's\nrequest\non\nsuch\nassistance.\nIn\nthe\nevent\nthe\nCompany\nis unable, after reasonable effort, to secure Employee's signature on any document or documents needed to apply for or prosecute\nany patent, copyright or other right or protection relating to any Invention, whether because of Employee's physical or menta\nincapacity\nor\nfor\nany\nother\nreason\nwhatsoever,\nEmployee\nhereby\nirrevocably\ndesignates\nand\nappoints\nthe\nCompany\nand\nits\nduly\nauthorized officers and agents as Employee's agent and attorney-in-fact, to act for and in Employee's behalf and stead to execute\nand file any such application or applications and to do all other lawfully permitted acts to further the prosecution and issuance of\npatents, copyrights or similar protections thereon with the same legal force and effect as if executed by Employee.\n(b) Remedies. Employee acknowledges that upon a breach of this Agreement the Company will suffer immediate and\nirreparable harm and damage for which money alone cannot fully compensate the Company. Employee therefore agrees that upon\nsuch breach or threat of imminent breach of this Agreement, the Company shall be entitled to a temporary restraining order,\npreliminary injunction, permanent injunction or other injunctive relief, without posting any bond or other security, barring Employee\nfrom violating any provision of this Agreement. At the Company's option, any action to enforce this Agreement shal be brought in or\ntransferred to the state or federal court situated in Boulder, Colorado. Nothing in this Agreement shall be construed as an election of\nany remedy, or as a waiver of any right available to the Company under this Agreement or the law, including the right to seek\ndamages from Employee for a breach of any provision of this Agreement.\n(c) Non-Solicitation of Employees. Employee agrees that during the term of employment and for a period of two years\nafter the termination or cessation of employment for any reason, Employee shall not directly or indirectly recruit, solicit or\nhire\nany\nemployee of the Company, or induce or attempt to induce any employee of the Company to discontinue his or her employment\nrelationship with the Company.\n(d) Not an Employment Contract Employee agrees and understands that nothing in this Agreement shall confer any\nright with respect to continuation of employment by the Company, nor shall it interfere in any way with Employee's right or the\nCompany's right to terminate Employee's employment at any time, with or without cause.\n(e) Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by and construed according to\nthe laws of the State of Colorado. Employee hereby expressly consents to the personal jurisdiction of the state and federal courts\nlocated in Colorado for any lawsuit filed there against Employee by the Company arising from or relating to this Agreement.\n(f) Entire Agreement. This Agreement sets forth the final, complete and exclusive agreement and understanding\nbetween the Company and Employee relating to the subject matter hereof. No modification of or amendment to this Agreement, nor\nany waiver of any rights under this Agreement, will be effective unless in writing signed by the party to be charged. No subsequent\nchange or changes in Employee's duties, salary or compensation will affect the validity or scope of this Agreement.\n(g) Severability. If one or more of the provisions in this Agreement are deemed unenforceable by law, then the remaining\nprovisions will continue in full force and effect.\n(h) Survival. The provisions of this Agreement shall survive the termination of Employee's employment for any reason\nand the assignment of this Agreement by the Company to any successor in interest or other assignee.\n(i) Waiver. No waiver by the Company of any breach of this Agreement shall be a waiver of any preceding or succeeding\nbreach. No waiver by the Company of any right under this Agreement shall be construed as a waiver of any other right.\n(i) Effective Date. This Agreement is effective as of the first day of Employee's employment with the Company. Employee\nunderstands that this Agreement affects Employee's rights to works and inventions Employee develops during Employee's\nemployment with the Company and restricts Employee's ability to disclose or use Confidential Information.\n[signature page follows]\nIN WITNESS WHEREOF, the parties have executed this agreement to be effective as of the Effective Date.\nCOMPANY:\nARRAY BIOPHARMA, INC., a Delaware corporation\nBy: /s/ Ron Squarer\nName: Ron Squarer\nTitle: Chief Executive Officer\nI HAVE READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND I UNDERSTAND, AND AGREE TO, EACH OF\nSUCH PROVISIONS. I UNDERSTAND THAT THIS AGREEMENT MAY AFFECT MY RIGHT TO ACCEPT EMPLOYMENT WITH\nOTHER COMPANIES SUBSEQUENT TO MY EMPLOYMENT WITH THE COMPANY.\nEMPLOYEE:\nBy: Is/ Victor Sandor\nVictor Sandor, M.D	EX-10 .3 4 a8k91114ex10d3.htm EX-10 .3\nEXHIBIT 10.3\nCONFIDENTIALITY AND INVENTIONS AGREEMENT\nThis Confidentiality and Inventions Agreement (this "Agreement"), by and between Array BioPharma Inc., a Delaware corporation\n(the "Company"), and Victor Sandor, M.D, an individual ("Employee"), is executed to be effective as of the "Effective Date" set forth\nin Section 3(j) below.\nAs a condition to, and in consideration of Employee's employment or continued employment (as the case may be) with the\nCompany, and in consideration of the mutual covenants and agreements contained herein and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:\n1. Protection of Trade Secrets and Confidential Information.\n(a) Definition of "Confidential Information." As used in this Agreement, the term "Confidential Information" shall include\nall information concerning or arising from the Company's business, including, without limitation, trade secrets used or developed by\nthe Company in connection with its business; information concerning the manner and details of the Company's operation,\norganization and management; financial information and/or documents and nonpublic policies, procedures and other printed or\nwritten material generated or used in connection with the Company's business; the Company's business plans and strategies; the\nidentities of the Company's customers and the specific individual customer representatives with whom the Company works and\ndetails of the Company's relationship with such customers and customer representatives; the identities of other persons or\ncompanies utilized in the Company's business and details of the Company's relationship with such persons or companies; the\nnature of fees and charges made to the Company's customers; nonpublic forms, contracts and other documents used in the\nCompany's business; the nature and content of computer software used in the Company's business, whether proprietary to the\nCompany or used by the Company under license from a third party; and/or other information concerning know-how, research,\ninventions, copyrights, trademarks, patent applications, patents, processes, designs, technical specifications, methods, concepts,\nprospects, customers, employees, contractors, earnings, products, services, formulas, compositions, machines, equipment,\nsystems, and/or prospective and executed contracts and other business arrangements. As used in this Agreement, "Company"\nincludes any direct or indirect subsidiary or affiliate of the Company.\nConfidential Information under this agreement shall not include information which (i) Employee can demonstrate\nwas in Employee's possession prior to employment with the Company (unless such information is assigned to, or otherwise\nbecomes the property of, the Company or (ii) is now in the public domain, or hereafter enters the public domain through no violation\nby Employee of the obligations hereunder or any other obligation of confidentiality, or (iii) is lawfully obtained from a source (other\nthan the Company, its affiliates or representatives) in accordance with the terms and conditions, if any, imposed upon Employee by\nsuch source respecting the use and disclosure thereof; provided, however, that such source was not at the time bound by a\nconfidentiality agreement with the Company or any of its affiliates or representatives. Confidential Information shall also not include\ngeneric information, knowledge or skill which Employee reasonably would have learned or acquired in the course of similar\nemployment or work elsewhere in the trade.\n(b) Restrictions on Employee's Use of Confidential Information. Except in connection with and in furtherance of\nEmployee's official duties with and on behalf of the Company, Employee shall not at any time or in any manner use, copy, disclose,\ndivulge, transmit, convey, transfer or otherwise communicate any Confidential Information to any person or entity, either directly or\nindirectly, without the Company's prior written consent.\n(c) Acknowledgment. Employee acknowledges that during the term of this Agreement, Employee will have access to\nConfidential Information, all of which shall be made accessible to Employee only in strict confidence; that unauthorized disclosure of\nConfidential Information will damage the Company's business; that Confidential Information would be susceptible to immediate\ncompetitive application by a competitor of the Company; that the Company's business is substantially dependent on access to and\nthe continuing secrecy of Confidential Information; that Confidential Information is unique and proprietary to the Company and\nknown only to Employee, the Company and certain key employees and contractors of the Company; and that title, ownership,\npossession and control of Confidential Information shall at all times remain vested in the Company. Consequently, Employee\nacknowledges that the restrictions contained in this Section 1 are reasonable and necessary for the protection of the Company's\nbusiness.\n(d) Documents and Other Records Containing Confidential Information. All documents or other records containing or\nalluding to Confidential Information that are prepared by or provided to Employee during the term of this Agreement or that come\ninto Employee's possession in connection with Employee's performance of services for the Company are and shall remain the\nCompany's property. Employee shall not copy or use any such documents or Confidential Information for any purpose not relating\ndirectly to Employee's performance of services for the Company, nor shall Employee market or in any way provide or make\navailable to any party other than the Company any of the Confidential Information, except pursuant to prior written authorization\nfrom the Company. Upon the termination of this Agreement for any reason and regardless of the circumstances of such termination\nor the existence of any dispute between Employee and the Company following or concerning the termination of Employee's\nemployment, or upon the request of the Company, its successors or assigns, Employee shall immediately deliver to the Company or\nits designee (and will not keep in Employee's possession or deliver to anyone else, including any copies) any and all devices,\nrecords, data, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment,\nother documents or property, or reproductions of any aforementioned items belonging to the Company, its successors or assigns.\nNotwithstanding any other provision of this Agreement, this Agreement shall not bar Employee from complying with any subpoena\nor court order, provided that prior to doing so Employee shall give the Company written notice, at the Company's principal place of\nbusiness, of Employee's receipt of any such subpoena or court order as far as possible in advance of the appearance time set forth\nin the subpoena or court order.\n(e) Third-Parties' Confidential Information. Employee acknowledges that the Company has received and in the future\nwill receive from third parties confidential or proprietary information, and that the Company must maintain the confidentiality of such\ninformation and use it only for proper purposes. Employee shall not use or disclose any such information except as permitted by the\nCompany or the third party to whom the information belongs.\n(f) Other Agreements. Employee represents to the Company that, except as identified on Schedule A hereto, Employee\nis not bound by any agreement or any other previous or existing business relationship which conflicts with or prevents the full\nperformance of any of Employee's obligations to the Company. During Employee's employment with the Company, Employee\nagrees not to improperly use or disclose any proprietary information or trade secrets of any former or concurrent employer, or any\nother person or entity with whom Employee has an agreement or to whom Employee owes a duty to keep such information in\nconfidence. Any such persons or entities with whom Employee has such agreements or to whom Employee owes such a duty are\nidentified on Schedule A.\n2. Inventions.\n(a) Disclosure. Employee agrees to disclose promptly to the Company the full details of any and all ideas, processes,\ntrademarks and service marks, technical data, know-how, works, inventions, discoveries, marketing and business ideas, and\nimprovements or enhancements to any of the foregoing, including all information necessary to enable the Company to reproduce\nany of the foregoing, (collectively, "Inventions"), that Employee conceives, develops or creates alone or with the aid of others during\nthe term of Employee's employment with the Company (whether or not conceived, developed or created during regular working\nhours) that: (i) relate to the Company's business; (ii) result from any work performed by Employee for the Company; (iii) involve the\nuse of the Company's equipment, supplies, facilities, or trade secret information; (iv) result from or are suggested by any work done\nat the Company's request or by any Company employee other than Employee, or relate to any problems specifically assigned to\nEmployee; or (v) result from Employee's access to any of the Company's memoranda, notes, records, drawings, sketches, models,\nmaps, customer lists, research results, data, formula, specifications, inventions, processes, equipment, or the like.\nInventions under this Agreement shall not include any invention that i) was developed on Employee's own time; ii)\nwas developed without the use of the Company's equipment, supplies, facilities, or Confidential Information; and iii) does not relate\nto the business of the Company.\n(b) Assignment. Employee shall assign and hereby assigns to the Company, without further consideration, Employee's\nentire right to any Invention which shall be the sole and exclusive property of the Company whether or not patentable. Employee\nacknowledges also that all Inventions which are made by Employee (solely or jointly with others), within the scope of Employee's\nemployment, and which are protectable by copyright, are "works made for hire," as that term is defined in the United States\nCopyright Act (17 U.S . C. § 101). To the extent that any such Inventions, by operation of law, cannot be "works made for hire,"\nEmployee hereby assigns to the Company all right, title, and interest in and to such Inventions and to any related copyrights.\n3. General Provisions.\n(a) Additional Instruments. Employee shall execute, acknowledge and deliver any additional instruments or documents\nthat the Company deems necessary to carry out the intentions of this Agreement, including such instruments as may be required by\nthe laws of any jurisdiction, now in effect or hereinafter enacted, that may affect the Company's property rights relating to the rights\nand obligations created by this Agreement. Employee further agrees, as to all the Inventions, to assist the Company in every way\n(at the Company's expense) to obtain and, from time to time, enforce patents on the Inventions in any and all countries. To that end,\nby way of illustration but not limitation, Employee will testify in any suit or other proceeding involving any of the Inventions, execute\nall documents which the Company reasonably determines to be necessary or convenient for use in applying for and obtaining\npatents thereon and enforcing same, and execute all necessary assignments thereof to the Company or persons designated by it.\nEmployee's obligation to assist the Company in obtaining and enforcing patents for the Inventions in any and all countries shall\ncontinue beyond the termination of Employee's employment, but the Company shall compensate Employee at a reasonable rate\nafter such termination for time actually spent by Employee at the Company's request on such assistance. In the event the Company\nis unable, after reasonable effort, to secure Employee's signature on any document or documents needed to apply for or prosecute\nany patent, copyright or other right or protection relating to any Invention, whether because of Employee's physical or mental\nincapacity or for any other reason whatsoever, Employee hereby irrevocably designates and appoints the Company and its duly\nauthorized officers and agents as Employee's agent and attorney-in-fact, to act for and in Employee's behalf and stead to execute\nand file any such application or applications and to do all other lawfully permitted acts to further the prosecution and issuance of\npatents, copyrights or similar protections thereon with the same legal force and effect as if executed by Employee.\n(b) Remedies. Employee acknowledges that upon a breach of this Agreement the Company will suffer immediate and\nirreparable harm and damage for which money alone cannot fully compensate the Company. Employee therefore agrees that upon\nsuch breach or threat of imminent breach of this Agreement, the Company shall be entitled to a temporary restraining order,\npreliminary injunction, permanent injunction or other injunctive relief, without posting any bond or other security, barring Employee\nfrom violating any provision of this Agreement. At the Company's option, any action to enforce this Agreement shall be brought in or\ntransferred to the state or federal court situated in Boulder, Colorado. Nothing in this Agreement shall be construed as an election of\nany remedy, or as a waiver of any right available to the Company under this Agreement or the law, including the right to seek\ndamages from Employee for a breach of any provision of this Agreement.\n(c) Non-Solicitation of Employees. Employee agrees that during the term of employment and for a period of two years\nafter the termination or cessation of employment for any reason, Employee shall not directly or indirectly recruit, solicit or hire any\nemployee of the Company, or induce or attempt to induce any employee of the Company to discontinue his or her employment\nrelationship with the Company.\n(d) Not an Employment Contract. Employee agrees and understands that nothing in this Agreement shall confer any\nright with respect to continuation of employment by the Company, nor shall it interfere in any way with Employee's right or the\nCompany's right to terminate Employee's employment at any time, with or without cause.\n(e) Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by and construed according to\nthe laws of the State of Colorado. Employee hereby expressly consents to the personal jurisdiction of the state and federal courts\nlocated in Colorado for any lawsuit filed there against Employee by the Company arising from or relating to this Agreement.\n(f) Entire Agreement. This Agreement sets forth the final, complete and exclusive agreement and understanding\nbetween the Company and Employee relating to the subject matter hereof. No modification of or amendment to this Agreement, nor\nany waiver of any rights under this Agreement, will be effective unless in writing signed by the party to be charged. No subsequent\nchange or changes in Employee's duties, salary or compensation will affect the validity or scope of this Agreement.\n(g) Severability. If one or more of the provisions in this Agreement are deemed unenforceable by law, then the remaining\nprovisions will continue in full force and effect.\n(h) Survival. The provisions of this Agreement shall survive the termination of Employee's employment for any reason\nand the assignment of this Agreement by the Company to any successor in interest or other assignee.\n(i) Waiver. No waiver by the Company of any breach of this Agreement shall be a waiver of any preceding or succeeding\nbreach. No waiver by the Company of any right under this Agreement shall be construed as a waiver of any other right.\n(j) Effective Date. This Agreement is effective as of the first day of Employee's employment with the Company. Employee\nunderstands that this Agreement affects Employee's rights to works and inventions Employee develops during Employee's\nemployment with the Company and restricts Employee's ability to disclose or use Confidential Information.\n[signature page follows]\nIN WITNESS WHEREOF, the parties have executed this agreement to be effective as of the Effective Date.\nCOMPANY:\nARRAY BIOPHARMA, INC., a Delaware corporation\nBy: /s/ Ron Squarer\nName: Ron Squarer\nTitle: Chief Executive Officer\nI HAVE READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND I UNDERSTAND, AND AGREE TO, EACH OF\nSUCH PROVISIONS. I UNDERSTAND THAT THIS AGREEMENT MAY AFFECT MY RIGHT TO ACCEPT EMPLOYMENT WITH\nOTHER COMPANIES SUBSEQUENT TO MY EMPLOYMENT WITH THE COMPANY.\nEMPLOYEE:\nBy: /s/ Victor Sandor\nVictor Sandor, M.D
0d84472301a851e6cd6f0e670a18b516.pdf	effective_date jurisdiction party term	EXHIBIT B\nTO EMPLOYMENT AGREEMENT\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) is made as of this day of\n, 2004 by and among Sunstone Hotel Investors, Inc.,\na Maryland corporation (“Sunstone”), and Sunstone Hotel Partnership, LLC, a Delaware limited liability company (“Operating Partnership”)\n(Sunstone and the Operating Partnership collectively, the “Company”), and Gary A. Stougaard (“Executive”).\nFor good and valuable consideration, Executive and Company hereby agree as follows:\n1. This Agreement will be effective on\n, 2004.\n2. Executive hereby assigns to Company all rights or interests that Executive may presently have or which may be acquired during the term of\nExecutive’s employment with the Company, in Company “Proprietary Information” as defined below in Section 5, and acknowledges that all such\nProprietary Information is the sole property of Company and its assigns.\n3. Subject to the provisions of Section 7 hereof, in the event that, during the term of Executive’s employment with the Company, Executive\ncreates or assists in the creation of any Company “Proprietary Information,” or any other Company intellectual property, and/or Executive prepares,\naccumulates or otherwise comes into possession of any materials or information during the course of performance of Executive’s duties which relate\nin any manner to Company’s business or development of services, Executive agrees that all such “Proprietary Information” and intellectual property\nshall be and remain the property of Company. In the event Executive’s employment with Company is terminated, for any reason, Executive shall\npromptly deliver to Company all such “Proprietary Information” and intellectual property (and any copies thereof), as well as any materials related\nto Company’s trade secrets or confidential information (and any copies thereof), which are within Executive’s custody or control.\n4. Executive agrees to disclose to Company all “Proprietary Information” and intellectual property developed during the term of his\nemployment, whether made solely or jointly with others, which relate to Company’s business, research, or development of products and services.\n5. During the term of Executive’s employment with Company and thereafter, Executive will not offer or disclose by any means, or use in any\nmanner, for Executive’s own benefit or the benefit of any other person or entity (other than Company or its affiliates), any Company “Proprietary\nInformation” or Company intellectual property. As used herein, the terms “Proprietary Information,” “intellectual property” and “trade secrets,” shall\ninclude, but not be limited to: (a) all information of any kind regarding Company’s business, research, marketing, sales, operations and products and\nplans for development of new business products and services; (b) all operational designs and techniques related to business, marketing and financial\ninformation or data of any kind related to Company’s business and business opportunities; (c) all\nEXHIBIT B\n-1-\ninformation of any kind regarding Company’s suppliers, vendors, consultants, agents and customers, including lists or compilations of any such\npersons or entities; (d) all information of any kind regarding Company’s officers, directors and shareholders (other than Executive), including their\nrespective abilities, functions, conduct or pay; (e) all proprietary information of any kind received or developed under agreement or other\narrangement by Company with any third party; and (f) all unpublished materials received or developed, including all works of authorship, which\nrelate to the business of Company, including but not limited to those concerning proprietary, trade secret or Company-private information,\ninvestment strategies, development plans, research and development data, and any other technical reports relating to Company’s business operations\nnow existing or which may be developed during the term of Executive’s employment with Company.\n6. Executive understands and agrees that a breach of the provisions contained herein could cause significant and irreparable harm to Company\nthat could not be satisfactorily compensated in monetary terms. Accordingly, and without in any way limiting Company from taking any other legal\naction to which it may be entitled to under law or in equity, in the event of any such breach or threatened breach, Company will be entitled to\ninjunctive relief including the immediate ex parte issuance, without bond, of a temporary restraining order against any such breach of threatened\nbreach.\n7. This Agreement shall not apply to: (a) any invention developed by Executive which qualifies under the provisions of California Labor Code,\nSection 2870; (b) any information which is or becomes publicly available, unless it becomes such as a result of a breach of this Agreement; (c) any\ninformation which Company subsequently discloses to any other person or entity without restriction; or (d) disclosure required by law or legal\nprocess; provided, that if Executive receives actual notice that the Executive is or may be required by law or legal process to disclose any such\ninformation, Executive shall promptly so notify Company, but in any event no more than five (5) days after the receipt of such notice.\n8. No amendment or modification to this Agreement shall be valid unless in writing signed by Executive and an authorized officer of\nCompany.\n9. The execution of this Agreement shall not be construed in any manner to alter Executive’s employment with Company as provided in his\nEmployment Agreement.\n10. The waiver by any party of a breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent\nbreach thereof or as a waiver of any other provisions of this Agreement. The remedies set forth herein are nonexclusive and are in addition to any\nother remedies that any party may have at law or in equity.\n11. If any legal action, arbitration or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute,\nbreach or default in connection with any of the provisions of this Agreement, the prevailing party shall be entitled to recover attorneys’ fees and\ncosts as set forth in the Employment Agreement.\nEXHIBIT B\n-2-\n12. All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by registered\nor certified mail, return receipt requested, postage prepaid, addressed as follows:\nIf to the Executive: at the Executive’s most recent address on the records of the Company,\nIf to the Company:\nc/o Sunstone Hotel Investors, Inc.\n903 Calle America, Suite 100\nSan Clemente, CA 92673\nAttn: Corporate Secretary\nwith a copy to:\nAllen Matkins Leck Gamble & Mallory LLP\n515 South Figueroa Street\nSeventh Floor\nLos Angeles, CA 90071-3398\nAttn: Michael F. Sfregola\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be\neffective when actually received by the addressee.\n13. This Agreement is entered into and shall be governed and interpreted in accordance with the laws of the State of California, without regard\nto or application of choice of law rules or principles. It shall be binding upon and inure to the benefit of the parties, and to their respective heirs,\npersonal representatives, successors and assigns. In the event that any provision of this Agreement is found by a court, arbitrator or other tribunal to\nillegal, invalid or unenforceable, then the remaining provisions of this Agreement shall not be voided, but shall be enforced to the maximum extent\npermissible by law.\nEXHIBIT B\n-3-\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above.\n“EXECUTIVE”\nSUNSTONE HOTEL INVESTORS, INC.,\na Maryland corporation\nBy:\nGary A. Stougaard\nName:\nIts:\nSUNSTONE HOTEL PARTNERSHIP, LLC,\na Delaware limited liability company\nBy: Sunstone Hotel Investors, Inc.\nIts: Managing Member\nBy:\nName:\nIts:\nEXHIBIT B\n-4-	EXHIBIT B\nTO EMPLOYMENT AGREEMENT\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) is made as of this __ day of , 2004 by and among Sunstone Hotel Investors, Inc.,\na Maryland corporation (“Sunstone”), and Sunstone Hotel Partnership, LLC, a Delaware limited liability company (“Operating Partnership™)\n(Sunstone and the Operating Partnership collectively, the “Company”), and Gary A. Stougaard (“Executive”).\nFor good and valuable consideration, Executive and Company hereby agree as follows:\n1. This Agreement will be effective on , 2004.\n2. Executive hereby assigns to Company all rights or interests that Executive may presently have or which may be acquired during the term of\nExecutive’s employment with the Company, in Company “Proprietary Information” as defined below in Section 5, and acknowledges that all such\nProprietary Information is the sole property of Company and its assigns.\n3. Subject to the provisions of Section 7 hereof, in the event that, during the term of Executive’s employment with the Company, Executive\ncreates or assists in the creation of any Company “Proprietary Information,” or any other Company intellectual property, and/or Executive prepares,\naccumulates or otherwise comes into possession of any materials or information during the course of performance of Executive’s duties which relate\nin any manner to Company’s business or development of services, Executive agrees that all such “Proprietary Information” and intellectual property\nshall be and remain the property of Company. In the event Executive’s employment with Company is terminated, for any reason, Executive shall\npromptly deliver to Company all such “Proprietary Information” and intellectual property (and any copies thereof), as well as any materials related\nto Company’s trade secrets or confidential information (and any copies thereof), which are within Executive’s custody or control.\n4. Executive agrees to disclose to Company all “Proprietary Information” and intellectual property developed during the term of his\nemployment, whether made solely or jointly with others, which relate to Company’s business, research, or development of products and services.\n5. During the term of Executive’s employment with Company and thereafter, Executive will not offer or disclose by any means, or use in any\nmanner, for Executive’s own benefit or the benefit of any other person or entity (other than Company or its affiliates), any Company “Proprietary\nInformation” or Company intellectual property. As used herein, the terms “Proprietary Information,” “intellectual property” and “trade secrets,” shall\ninclude, but not be limited to: (a) all information of any kind regarding Company’s business, research, marketing, sales, operations and products and\nplans for development of new business products and services; (b) all operational designs and techniques related to business, marketing and financial\ninformation or data of any kind related to Company’s business and business opportunities; (c) all\nEXHIBIT B\n1-\ninformation of any kind regarding Company’s suppliers, vendors, consultants, agents and customers, including lists or compilations of any such\npersons or entities; (d) all information of any kind regarding Company’s officers, directors and shareholders (other than Executive), including their\nrespective abilities, functions, conduct or pay; (e) all proprietary information of any kind received or developed under agreement or other\narrangement by Company with any third party; and (f) all unpublished materials received or developed, including all works of authorship, which\nrelate to the business of Company, including but not limited to those concerning proprietary, trade secret or Company-private information,\ninvestment strategies, development plans, research and development data, and any other technical reports relating to Company’s business operations\nnow existing or which may be developed during the term of Executive’s employment with Company.\n6. Executive understands and agrees that a breach of the provisions contained herein could cause significant and irreparable harm to Company\nthat could not be satisfactorily compensated in monetary terms. Accordingly, and without in any way limiting Company from taking any other legal\naction to which it may be entitled to under law or in equity, in the event of any such breach or threatened breach, Company will be entitled to\ninjunctive relief including the immediate ex parte issuance, without bond, of a temporary restraining order against any such breach of threatened\nbreach.\n7. This Agreement shall not apply to: (a) any invention developed by Executive which qualifies under the provisions of California Labor Code,\nSection 2870; (b) any information which is or becomes publicly available, unless it becomes such as a result of a breach of this Agreement; (c) any\ninformation which Company subsequently discloses to any other person or entity without restriction; or (d) disclosure required by law or legal\nprocess; provided, that if Executive receives actual notice that the Executive is or may be required by law or legal process to disclose any such\ninformation, Executive shall promptly so notify Company, but in any event no more than five (5) days after the receipt of such notice.\n \n8. No amendment or modification to this Agreement shall be valid unless in writing signed by Executive and an authorized officer of\nCompany.\n9. The execution of this Agreement shall not be construed in any manner to alter Executive’s employment with Company as provided in his\nEmployment Agreement.\n10. The waiver by any party of a breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent\nbreach thereof or as a waiver of any other provisions of this Agreement. The remedies set forth herein are nonexclusive and are in addition to any\nother remedies that any party may have at law or in equity.\n11. If any legal action, arbitration or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute,\nbreach or default in connection with any of the provisions of this Agreement, the prevailing party shall be entitled to recover attorneys’ fees and\ncosts as set forth in the Employment Agreement.\nEXHIBIT B\n-\n12. All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by registered\nor certified mail, return receipt requested, postage prepaid, addressed as follows:\nIf to the Executive: at the Executive’s most recent address on the records of the Company,\nIf to the Company:\nc/o Sunstone Hotel Investors, Inc.\n903 Calle America, Suite 100\nSan Clemente, CA 92673\nAttn: Corporate Secretary\nwith a copy to:\nAllen Matkins Leck Gamble & Mallory LLP\n515 South Figueroa Street\nSeventh Floor\nLos Angeles, CA 90071-3398\nAttn: Michael F. Sfregola\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be\neffective when actually received by the addressee.\n13. This Agreement is entered into and shall be governed and interpreted in accordance with the laws of the State of California, without regard\nto or application of choice of law rules or principles. It shall be binding upon and inure to the benefit of the parties, and to their respective heirs,\npersonal representatives, successors and assigns. In the event that any provision of this Agreement is found by a court, arbitrator or other tribunal to\nillegal, invalid or unenforceable, then the remaining provisions of this Agreement shall not be voided, but shall be enforced to the maximum extent\npermissible by law.\nEXHIBIT B\n_3-\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. “EXECUTIVE”\nGary A. Stougaard\nSUNSTONE HOTEL INVESTORS, INC,,\na Maryland corporation\nBy:\nName:\nIts:\nSUNSTONE HOTEL PARTNERSHIP, LLC,\na Delaware limited liability company\nBy: Sunstone Hotel Investors, Inc.\nIts: Managing Member\nBy:\nName:\nIts:\nEXHIBIT B 4-	EXHIBIT B\nTO EMPLOYMENT AGREEMENT\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement ("Agreement") is made as of this day of 2004 by and among Sunstone Hotel Investors, Inc.,\na Maryland corporation ("Sunstone"), and Sunstone Hotel Partnership, LLC, a Delaware limited liability company ("Operating Partnership")\n(Sunstone and the Operating Partnership collectively, the "Company"), and Gary A. Stougaard ("Executive").\nFor good and valuable consideration, Executive and Company hereby agree as follows:\n1. This Agreement will be effective on\n2004.\n2. Executive hereby assigns to Company all rights or interests that Executive may presently have or which may be acquired during the term of\nExecutive's employment with the Company, in Company "Proprietary Information" as defined below in Section 5, and acknowledges that all such\nProprietary Information is the sole property of Company and its assigns.\n3. Subject to the provisions of Section 7 hereof, in the event that, during the term of Executive's employment with the Company, Executive\ncreates or assists in the creation of any Company "Proprietary Information," or any other Company intellectual property, and/or Executive prepares,\naccumulates or otherwise comes into possession of any materials or information during the course of performance of Executive's duties which relate\nin any manner to Company's business or development of services, Executive agrees that all such "Proprietary Information" and intellectual property\nshall be and remain the property of Company. In the event Executive's employment with Company is terminated, for any reason, Executive shall\npromptly deliver to Company all such "Proprietary Information" and intellectual property (and any copies thereof), as well as any materials related\nto Company's trade secrets or confidential information (and any copies thereof), which are within Executive's custody or control.\n4. Executive agrees to disclose to Company all "Proprietary Information" and intellectual property developed during the term of his\nemployment, whether made solely or jointly with others, which relate to Company's business, research, or development of products and services.\n5. During the term of Executive's employment with Company and thereafter, Executive will not offer or disclose by any means, or use in any\nmanner, for Executive's own benefit or the benefit of any other person or entity (other than Company or its affiliates), any Company "Proprietary\nInformation" or Company intellectual property. As used herein, the terms "Proprietary Information," "intellectual property" and "trade secrets," shall\ninclude, but not be limited to: (a) all information of any kind regarding Company's business, research, marketing, sales, operations and products and\nplans for development of new business products and services; (b) all operational designs and techniques related to business, marketing and financial\ninformation or data of any kind related to Company's business and business opportunities; (c) all\nEXHIBIT B\n-1-\ninformation of any kind regarding Company's suppliers, vendors, consultants, agents and customers, including lists or compilations of any such\npersons or entities; (d) all information of any kind regarding Company's officers, directors and shareholders (other than Executive), including their\nrespective abilities, functions, conduct or pay; (e) all proprietary information of any kind received or developed under agreement or other\narrangement by Company with any third party; and (f) all unpublished materials received or developed, including all works of authorship, which\nrelate to the business of Company, including but not limited to those concerning proprietary, trade secret or Company-private information,\ninvestment strategies, development plans, research and development data, and any other technical reports relating to Company's business operations\nnow existing or which may be developed during the term of Executive's employment with Company.\n6. Executive understands and agrees that a breach of the provisions contained herein could cause significant and irreparable harm to Company\nthat could not be satisfactorily compensated in monetary terms. Accordingly, and without in any way limiting Company from taking any other legal\naction to which it may be entitled to under law or in equity, in the event of any such breach or threatened breach, Company will be entitled to\ninjunctive relief including the immediate ex parte issuance, without bond, of a temporary restraining order against any such breach of threatened\nbreach.\n7. This Agreement shall not apply to: (a) any invention developed by Executive which qualifies under the provisions of California Labor Code,\nSection 2870; (b) any information which is or becomes publicly available, unless it becomes such as a result of a breach of this Agreement; (c) any\ninformation which Company subsequently discloses to any other person or entity without restriction; or (d) disclosure required by law or legal\nprocess; provided, that if Executive receives actual notice that the Executive is or may be required by law or legal process to disclose any such\ninformation, Executive shall promptly so notify Company, but in any event no more than five (5) days after the receipt of such notice.\n8. No amendment or modification to this Agreement shall be valid unless in writing signed by Executive and an authorized officer of\nCompany.\n9. The execution of this Agreement shall not be construed in any manner to alter Executive's employment with Company as provided in his\nEmployment Agreement.\n10. The waiver by any party of a breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent\nbreach thereof or as a waiver of any other provisions of this Agreement. The remedies set forth herein are nonexclusive and are in addition to any\nother remedies that any party may have at law or in equity.\n11. If any legal action, arbitration or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute,\nbreach or default in connection with any of the provisions of this Agreement, the prevailing party shall be entitled to recover attorneys' fees and\ncosts as set forth in the Employment Agreement.\nEXHIBIT B\n-2-\n12. All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by registered\nor certified mail, return receipt requested, postage prepaid, addressed as follows:\nIf to the Executive: at the Executive's most recent address on the records of the Company,\nIf to the Company:\nc/o Sunstone Hotel Investors, Inc.\n903 Calle America, Suite 100\nSan Clemente, CA 92673\nAttn: Corporate Secretary\nwith a copy to:\nAllen Matkins Leck Gamble & Mallory LLP\n515 South Figueroa Street\nSeventh Floor\nLos Angeles, CA 90071-3398\nAttn: Michael F. Sfregola\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be\neffective when actually received by the addressee.\n13. This Agreement is entered into and shall be governed and interpreted in accordance with the laws of the State of California, without regard\nto\nor application of choice of law rules or principles. It shall be binding upon and inure to the benefit of the parties, and to their respective heirs,\npersonal representatives, successors and assigns. In the event that any provision of this Agreement is found by a court, arbitrator or other tribunal to\nillegal, invalid or unenforceable, then the remaining provisions of this Agreement shall not be voided, but shall be enforced to the maximum extent\npermissible by law.\nEXHIBIT B\n-3-\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above.\n"EXECUTIVE"\nSUNSTONE HOTEL INVESTORS, INC.,\na Maryland corporation\nBy\nGary A. Stougaard\nName:\nIts:\nSUNSTONE HOTEL PARTNERSHIP, LLC,\na Delaware limited liability company\nBy:\nSunstone Hotel Investors, Inc.\nIts: Managing Member\nBy:\nName:\nIts:\nEXHIBIT B\n-4-	EXHIBIT B\nTO EMPLOYMENT AGREEMENT\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) is made as of this day of\n, 2004 by and among Sunstone Hotel Investors, Inc.,\na Maryland corporation (“Sunstone”), and Sunstone Hotel Partnership, LLC, a Delaware limited liability company (“Operating Partnership”)\n(Sunstone and the Operating Partnership collectively, the “Company”), and Gary A. Stougaard (“Executive”).\nFor good and valuable consideration, Executive and Company hereby agree as follows:\n1. This Agreement will be effective on\n, 2004.\n2. Executive hereby assigns to Company all rights or interests that Executive may presently have or which may be acquired during the term of\nExecutive’s employment with the Company, in Company “Proprietary Information” as defined below in Section 5, and acknowledges that all such\nProprietary Information is the sole property of Company and its assigns.\n3. Subject to the provisions of Section 7 hereof, in the event that, during the term of Executive’s employment with the Company, Executive\ncreates or assists in the creation of any Company “Proprietary Information,” or any other Company intellectual property, and/or Executive prepares,\naccumulates or otherwise comes into possession of any materials or information during the course of performance of Executive’s duties which relate\nin any manner to Company’s business or development of services, Executive agrees that all such “Proprietary Information” and intellectual property\nshall be and remain the property of Company. In the event Executive’s employment with Company is terminated, for any reason, Executive shall\npromptly deliver to Company all such “Proprietary Information” and intellectual property (and any copies thereof), as well as any materials related\nto Company’s trade secrets or confidential information (and any copies thereof), which are within Executive’s custody or control.\n4. Executive agrees to disclose to Company all “Proprietary Information” and intellectual property developed during the term of his\nemployment, whether made solely or jointly with others, which relate to Company’s business, research, or development of products and services.\n5. During the term of Executive’s employment with Company and thereafter, Executive will not offer or disclose by any means, or use in any\nmanner, for Executive’s own benefit or the benefit of any other person or entity (other than Company or its affiliates), any Company “Proprietary\nInformation” or Company intellectual property. As used herein, the terms “Proprietary Information,” “intellectual property” and “trade secrets,” shall\ninclude, but not be limited to: (a) all information of any kind regarding Company’s business, research, marketing, sales, operations and products and\nplans for development of new business products and services; (b) all operational designs and techniques related to business, marketing and financial\ninformation or data of any kind related to Company’s business and business opportunities; (c) all\nEXHIBIT B\n-1-\ninformation of any kind regarding Company’s suppliers, vendors, consultants, agents and customers, including lists or compilations of any such\npersons or entities; (d) all information of any kind regarding Company’s officers, directors and shareholders (other than Executive), including their\nrespective abilities, functions, conduct or pay; (e) all proprietary information of any kind received or developed under agreement or other\narrangement by Company with any third party; and (f) all unpublished materials received or developed, including all works of authorship, which\nrelate to the business of Company, including but not limited to those concerning proprietary, trade secret or Company-private information,\ninvestment strategies, development plans, research and development data, and any other technical reports relating to Company’s business operations\nnow existing or which may be developed during the term of Executive’s employment with Company.\n6. Executive understands and agrees that a breach of the provisions contained herein could cause significant and irreparable harm to Company\nthat could not be satisfactorily compensated in monetary terms. Accordingly, and without in any way limiting Company from taking any other legal\naction to which it may be entitled to under law or in equity, in the event of any such breach or threatened breach, Company will be entitled to\ninjunctive relief including the immediate ex parte issuance, without bond, of a temporary restraining order against any such breach of threatened\nbreach.\n7. This Agreement shall not apply to: (a) any invention developed by Executive which qualifies under the provisions of California Labor Code,\nSection 2870; (b) any information which is or becomes publicly available, unless it becomes such as a result of a breach of this Agreement; (c) any\ninformation which Company subsequently discloses to any other person or entity without restriction; or (d) disclosure required by law or legal\nprocess; provided, that if Executive receives actual notice that the Executive is or may be required by law or legal process to disclose any such\ninformation, Executive shall promptly so notify Company, but in any event no more than five (5) days after the receipt of such notice.\n8. No amendment or modification to this Agreement shall be valid unless in writing signed by Executive and an authorized officer of\nCompany.\n9. The execution of this Agreement shall not be construed in any manner to alter Executive’s employment with Company as provided in his\nEmployment Agreement.\n10. The waiver by any party of a breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent\nbreach thereof or as a waiver of any other provisions of this Agreement. The remedies set forth herein are nonexclusive and are in addition to any\nother remedies that any party may have at law or in equity.\n11. If any legal action, arbitration or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute,\nbreach or default in connection with any of the provisions of this Agreement, the prevailing party shall be entitled to recover attorneys’ fees and\ncosts as set forth in the Employment Agreement.\nEXHIBIT B\n-2-\n12. All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by registered\nor certified mail, return receipt requested, postage prepaid, addressed as follows:\nIf to the Executive: at the Executive’s most recent address on the records of the Company,\nIf to the Company:\nc/o Sunstone Hotel Investors, Inc.\n903 Calle America, Suite 100\nSan Clemente, CA 92673\nAttn: Corporate Secretary\nwith a copy to:\nAllen Matkins Leck Gamble & Mallory LLP\n515 South Figueroa Street\nSeventh Floor\nLos Angeles, CA 90071-3398\nAttn: Michael F. Sfregola\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be\neffective when actually received by the addressee.\n13. This Agreement is entered into and shall be governed and interpreted in accordance with the laws of the State of California, without regard\nto or application of choice of law rules or principles. It shall be binding upon and inure to the benefit of the parties, and to their respective heirs,\npersonal representatives, successors and assigns. In the event that any provision of this Agreement is found by a court, arbitrator or other tribunal to\nillegal, invalid or unenforceable, then the remaining provisions of this Agreement shall not be voided, but shall be enforced to the maximum extent\npermissible by law.\nEXHIBIT B\n-3-\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above.\n“EXECUTIVE”\nSUNSTONE HOTEL INVESTORS, INC.,\na Maryland corporation\nBy:\nGary A. Stougaard\nName:\nIts:\nSUNSTONE HOTEL PARTNERSHIP, LLC,\na Delaware limited liability company\nBy: Sunstone Hotel Investors, Inc.\nIts: Managing Member\nBy:\nName:\nIts:\nEXHIBIT B\n-4-
0d937100a1b508979342c4469c2c6748.pdf	effective_date jurisdiction party term	EX-10.J 11 d276684dex10j.htm NON-COMPETE, NON-DISCLOSURE, NON-DISPARAGEMENT, RELEASE AND\nCONSULTING AGREEMENT\nExhibit 10.j\nNON-COMPETE, NON-DISCLOSURE, NON-DISPARAGEMENT, RELEASE AND\nCONSULTING AGREEMENT\nThis Agreement is dated as of January 1, 2012 and is between Donald J. DeMarie, Jr. (the “Consultant”) and Masco Corporation (a Delaware\ncorporation), with a business address of 21001 Van Born Road, Taylor, MI 48180 (the “Company”).\nWHEREAS, Consultant has been the Executive Vice President and Chief Operating Officer for the Company, and\nWHEREAS, Consultant has established close business relationships with executives and other employees of the Company’s suppliers of\nmaterials and services used in the manufacture or sale of the Company’s products and services; and\nWHEREAS, Consultant has also established close business relationships with executives and other employees of the Company’s customers,\nincluding retailers, builders, wholesalers, distributors, dealers; and\nWHEREAS, Consultant has also established close business relationships with executives and other employees of investors, lenders and\nadvisors of the Company (both actual and prospective); and\nWHEREAS, Consultant has gained detailed knowledge of the Company’s operations, processes, finances, products, services and business and\nlegal strategies; and\nWHEREAS, the Company desires that, effective November 4, 2011 the Consultant be removed from his office as Executive Vice President and\nChief Operating Officer of the Company and all other offices and directorships he holds for any of the Company’s subsidiaries and affiliates, and that\neffective January 1, 2012 he be terminated from his employment with the Company and thereafter provide the Company, its subsidiaries and\naffiliates, with consulting services through December 31, 2013, and from time to time thereafter, all on the terms and conditions provided herein, and\nWHEREAS, the Consultant has been given the opportunity to review this Agreement, and has been advised to consult and has consulted legal\ncounsel to ascertain whether the Consultant has any potential rights or remedies which by the Consultant’s execution of this Agreement are waived\nand released, and\nWHEREAS, the Consultant and the Company, without any admission of liability, desire to settle with finality, compromise, dispose of, and\nrelease any claims and demands of the Consultant which have been or could be asserted, whether arising out of the Consultant’s employment by or\ntermination from the Company or otherwise;\nNOW THEREFORE, the parties agree as follows:\n1. Termination of Employment and Separation Benefits. Effective January 1, 2012 (“Termination Date”), Consultant’s employment\nwith the Company shall be terminated.\n(a) In consideration for the Release given by the Consultant in Paragraph 12 hereof, the Company agrees (i) to pay the Consultant $1,130,010\nin 15 installments of $75,334 each on or about the first of each of the months January, 2012 through March, 2013; to pay Consultant $499,995 in\nnine installments of $55,555 each on or about the first of each of the months April, 2013 through December, 2013; (iii) to pay the Consultant the sum\nof $16,200 as reimbursement for 18 months of COBRA health coverage, in monthly payments of $900 each during the initial 18 months following\nthe Termination Date; and (iv) to provide the Consultant outplacement services through a vendor selected by Consultant and paid by the Company;\nprovided, that the cost of such outplacement services will not exceed $50,000, which services shall be rendered, and payment therefor made, on or\nbefore December 31, 2013.\n(b) the Company agrees to pay the Consultant (i) an amount equal to any FY 2011 bonus he would have received as a continuing employee, at\nor about the same time as such bonuses may be paid to other Company and (ii)an amount equal to the fully vested value of any FY 2011\nperformance restricted stock award he would have received as a continuing employee, at or about the same time such awards may be granted to other\nCompany executives, in each such case on or before December 31, 2012.\n(c) the Consultant recognizes that the consideration to be provided pursuant to Paragraphs 1(a) and 1(b) is in each case stated as a gross\namount before applicable payroll tax withholding, and is in excess of any earned wages or benefits due and owing the Consultant by virtue of his\nemployment with the Company or otherwise.\n(d) Consultant agrees that he shall faithfully and continuously make himself available as an employee to render whatever services may be\nrequired of him by the Company at all times up to and including the Termination Date.\n(e) Consultant shall be paid for his four weeks’ 2012 vacation eligibility in cash promptly following the Termination Date.\n(f) The Consultant will be eligible, based on his being employed as of December 31, 2011, for a contribution (if declared generally by the\nCompany’s Compensation Committee) to the Company’s Future Service Profit Sharing Plan and the Benefits Restoration Plan based on those plans’\nprovisions.\n2. Duties During and After the Consulting Period.\n(a) During the Consulting Period (as hereinafter defined), the Consultant shall perform and discharge well and faithfully consulting services as\nmay be assigned to Consultant from time to time by the Company’s President and Chief Executive Officer, or any other officer or executive of\nMasco Corporation with oversight responsibility for the Company, or such other person as the President and Chief Executive Officer might designate\nin writing. Such services may include, but not be limited to:\n2\n(i) provision of information concerning the Consultant’s past activities or areas of experience or expertise;\n(ii) participation in phone calls or in meetings with representatives or attorneys of the Company or any of its subsidiaries or\nwith customers, vendors, or suppliers to the Company or any of its subsidiaries;\n(iii) the preparation of marketing studies or studies on competitive trends for the products or services sold by the Company or\nany of its subsidiaries;\n(iv) prompt assistance to, and full cooperation with, the Company in any Company investigation, or with respect to any\ndispute, or any administrative, regulatory or legal proceedings; and\n(v) active and completely focused participation in litigation as a trial witness, deponent, declarant or source of information,\nwithout requiring service of subpoena or other legal process, and when desired, in the Company’s sole discretion, by providing\nimmediate response to requests for assistance.\nAll such services shall be provided promptly and completely and shall involve the full cooperation and best efforts of the Consultant in order\nto meet the goals and direction of the Company, as such may be determined in the Company’s sole discretion. Such services are being significantly\ncompensated, and Consultant acknowledges that such efforts may require substantial time on an as-needed basis. In no event will the Consultant’s\nduties require the relocation of the Consultant from the Consultant’s then-current residence.\n(b) During the pendency of any litigation or other proceeding involving the Company, Consultant shall not communicate with anyone (other\nthan Consultant’s and Company’s attorneys) with respect to any facts relating to, or the subject matter of, any pending or potential litigation or\nregulatory or administrative proceeding involving the Company or any of its subsidiaries, except as directed by the Company or as required by\ncompulsory process or court order. Consultant acknowledges that the Company’s litigation strategies, and the Company’s and its subsidiaries’\nbusiness strategies and conduct which may be the subject of litigation, are highly confidential. In the event of such compulsory process or Court\norder, Consultant shall immediate notify the Company thereof and fully cooperate with the Company in any response thereto and related actions.\n(c) It is agreed that the Consultant shall be an independent contractor and shall not be the employee, servant, agent, partner or joint venturer of\nthe Company, or any of its officers, directors or employees. The Consultant has no authority to assume or create any obligation or liability, express or\nimplied, on behalf of the Company, or in the name of the Company or to bind the Company in any manner whatsoever.\n3\n(d) The Consultant shall devote such time, attention and energies to such services for the Company as the Company shall direct. The\nConsultant acknowledges that time is of the essence in the performance of such services, and Consultant’s failure to promptly, fully and completely\nprovide such services within the time desired by the Company shall constitute a material breach of this Agreement. The consulting services provided\nhereunder shall not exceed in any year twenty percent (20%) of the time the Consultant spent during 2011 while an employee of the Company.\n(e) Consultant shall make it clear to any prospective future employer, client, joint venturer or other recipient of his future services that\nConsultant has all of the foregoing obligations under this Agreement, and that any future provision of his services is subject to his fulfillment of such\nobligations.\n(f) Following the Consulting Period, Consultant will make himself available to the Company from time to time for additional consulting; in\nthis regard, both the Company and the Consultant will undertake their best efforts to assure that the Consultant will be able to perform such\nconsultancy as reasonably needed by the Company in a manner consistent with any other employment obligations possessed at that time by the\nConsultant as mutually agreed upon under a separate consulting relationship between the parties in the future. The parties expect that such consulting\nshall be limited in duration and may involve matters arising in the course of litigation either at trial or from appellate decisions.\n3. Term of Consulting Relationship. The consulting relationship under Paragraph 2 of this Agreement shall be for a period (the\n“Consulting Period”) commencing January 1, 2012, and ending December 31, 2013, unless sooner terminated by written notice of termination from\nthe Company in the event that (i) the Consultant has been convicted of or pled guilty or nolo contendere to a crime involving moral turpitude or a\ncrime providing for a term of imprisonment; or (ii) current alcohol or other substance abuse on the part of the Consultant (whether or not constituting\na crime, or the Consultant’s willful misconduct); or (iii) the Consultant’s failure to follow the instructions of the President and Chief Executive\nOfficer of the Company, or other officers or executives of the Company, or the Consultant’s neglect of duties, but in each such case only following\nwritten notice thereof; or (iv) the Consultant has breached any other obligation under this Agreement, the Stock Plans, the Awards, the Letter or the\nPlan (as hereinafter defined). If the Consulting Period is terminated for any of the reasons set forth in the preceding sentence, the rights of the\nConsultant under Paragraphs 1(a) and 1(b) and to the fees set forth in Paragraph 4 hereof shall cease on the date of such termination (and are subject\nto recovery by the Company as provided in paragraph 3(vi) of the Letter), and the Company shall have no further obligation to the Consultant under\nany of the provisions of this Agreement or the other referenced agreements. Termination shall not, however, affect the provisions of Paragraphs 5\nthrough 13 or 17 through 20, each of which shall survive any termination in accordance with their terms. Consultant’s termination of this Agreement\nwithout cause shall\n4\nconstitute a material breach of this Agreement. If the Consulting Period is terminated by reason of the Consultant’s death, to the extent then not paid\nto the Consultant, the payments under Paragraphs 1(a) and 1(b) and the fees set forth in Paragraph 4(a)(i) hereof shall be made to the Consultant’s\nestate. Survivor rights with respect to the fees described in Paragraph 4(a)(ii) shall be as determined under applicable beneficiary and other\nprovisions embodied in the Stock Plans and Awards as modified by the Letter.\n4. Consulting Period Compensation.\n(a) In full satisfaction for any and all services rendered by the Consultant hereunder, (i) during the period beginning January 1, 2012 and\nending December 31, 2013 the Consultant will be paid, on a monthly basis, a consulting fee in the gross amount of $2084.00 in consecutive monthly\ninstallments on or about the 15th of each month with respect to the immediately preceding month and (ii) the Consultant’s rights and obligations\nunder provisions of the Masco Corporation 1991 and 2005 Long Term Stock Incentive Plans (“Stock Plans”) and the Awards of restricted stock\nmade in letters previously issued to the Consultant pursuant to the Stock Plans (collectively, “Awards”) shall continue vesting following the\nTermination Date only in accordance with the provisions of the Stock Plans and Awards and that certain letter agreement between the Consultant and\nthe Company of even date herewith (“Letter”). Following the Consulting Period, for any consulting services rendered to the Company from time to\ntime, the Consultant shall be paid at a rate as agreed by the parties which shall be commensurate with the Consultant’s cash compensation as in effect\nduring 2011 as mutually agreed upon under a separate consulting relationship between the parties in the future.\n(b) The payments and extended stock vesting set forth in Paragraph 4(a)(i) and (ii) are given in consideration of both the Consultant’s services\nand the Consultant’s immediate on-call availability to perform such services when requested. In addition to such fees, the Company agrees to\nreimburse the Consultant for travel and reasonable living expenses away from the Consultant’s residence directly incurred by the Consultant at the\nCompany’s request in performing such services for the Company or as approved by the Company in advance. The Consultant agrees to keep\naccurate expense records in the form requested by the Company and to provide the Company with such records upon request.\n(c) Other than benefits accrued under the Company’s benefit plans through the Termination Date, and pursuant to that certain Supplemental\nExecutive Retirement Plan as described in the letter agreement dated July 1, 2006 as amended (the “Plan”), the Consultant shall not receive any\nother compensation from the Company nor shall he participate in or receive benefits under any of the Company’s employee fringe benefit programs\nor receive any other fringe benefits from the Company on account of services hereunder (including without limitation health, disability, life\ninsurance, retirement, pension and profit sharing benefits).\n5. Disclosure of Information. The Consultant acknowledges that the Company’s and its subsidiaries’ trade secrets, private or secret\nprocesses as they exist from time to time, and information concerning products, developments, manufacturing techniques, new\n5\nproduct plans, equipment, inventions, discoveries, patent applications, ideas, designs, engineering drawings, sketches, renderings, other drawings,\nmanufacturing and test data, computer programs, progress reports, materials, costs, specifications, processes, methods, research, procurement and\nsales activities and procedures, Company business strategies, litigation or legal strategies, promotion or pricing techniques or credit or financial data\nconcerning customers of the Company or its subsidiaries as well as information relating to the management, operation or planning of the Company\nor its subsidiaries which, in each such case, has not been made public (or, if made public, such disclosure must not have been made by the\nConsultant) (the “Proprietary Information”) are valuable, special and unique assets of the Company and its subsidiaries. In light of the highly\ncompetitive nature of the industries in which the Company and its subsidiaries conduct their businesses, the Consultant agrees that all Proprietary\nInformation heretofore or in the future obtained by the Consultant as a result of the Consultant’s relationship with the Company and its subsidiaries\nshall be considered confidential. In recognition of this fact, the Consultant agrees that he will, during and after the Consulting Period, keep the\nProprietary Information strictly confidential, will not disclose any of such Proprietary Information to any person or entity for any reason or purpose\nwhatsoever (except as directed by the Company), and he will not make use of any Proprietary Information for his own purposes or for the benefit of\nany other person or entity (except the Company and its subsidiaries) under any circumstances.\n6. Non-Competition. In order to protect the Company and its subsidiaries from the Consultant’s competitive use of the substantial\nProprietary Information and goodwill gained by the Consultant in his employment and consulting relationships with the Company and its\nsubsidiaries, the Consultant agrees that during the Consulting Period Consultant shall not, directly or indirectly:\n(a) Engage in or assist in the design, development, evaluation, planning, manufacture, sale, or marketing of any products,\ntechnologies, or services that compete with or could displace those designed, sold, manufactured, designed, evaluated, marketed,\nplanned or developed by the Company (whether solely or in conjunction with other subsidiaries of the Company or their\nemployees) at any time during the Consultant’s employment with the Company or any subsidiary or consultation with the\nCompany (the ‘Business Activities’), whether such engagement is as an officer, director, proprietor, employee, partner, investor\n(other than as a holder of less than 1% of the outstanding capital stock of a publicly traded corporation), consultant, advisor, agent\nor otherwise in any geographic areas in which the products, technologies, or services of the Company or any of its subsidiaries,\nare at that time distributed or planned to be distributed. Business Activities, include, but are not limited to, the design,\ndevelopment, evaluation, manufacture, sale, planning and marketing of plumbing products, installation of insulation, windows,\nwindow frames, paint, cabinets, tub and shower enclosures, hardware, other building and home products or services, and all other\nproducts, technologies and services offered or sold by the Company or any of its subsidiaries;\n6\n(b) Be engaged (other than on behalf of the Company) whether as an officer, director, proprietor, employee, partner, investor (other\nthan as a holder of less than 1% of the outstanding capital stock of a publicly traded corporation), consultant, advisor, agent or\notherwise, (i) as a supplier to any customer with whom the Company or any of its subsidiaries has done business during\nConsultant’s employment or consultation with the Company or any of its subsidiaries; or (ii) on behalf of any customer of, or\nsupplier to, the Company or any of its subsidiaries, with whom the Company or any of its subsidiaries has done business during\nConsultant’s employment or consultation with the Company or any of its subsidiaries;\n(c) Assist others in engaging in any of the Business Activities in the manner prohibited to the Consultant; or\n(d) Induce employees of the Company or any of its subsidiaries to engage in any activities that are prohibited to the Consultant.\nIn addition, during the Consulting Period and for a two-year period following the Consulting Period, the Consultant shall not, directly or\nindirectly:\n(e) Knowingly induce employees of the Company or any of its subsidiaries to terminate their employment.\nIt is expressly understood and agreed that although the Consultant and the Company consider the restrictions contained in each of clauses (a) through\n(e) above reasonable for the purpose of preserving for the Company and its subsidiaries their good will, trade secrets, proprietary rights and ongoing\nbusiness value, if a final judicial determination is made by a court having jurisdiction that the time and territory or any other restriction contained in\nthis Paragraph is an unenforceable restriction on the activities of the Consultant, the provisions of this Paragraph shall not be rendered void but shall\nbe deemed amended to apply as to such maximum time, territory and activities as such court may judicially determine or indicate to be reasonable.\n7. Remedies.\n(a) The Consultant acknowledges and agrees that the Company’s remedy at law for a breach or threatened breach of any of the provisions of\nParagraphs 5 or 6 of this Agreement would be inadequate and, in recognition of this fact, in the event of a breach by the Consultant of any of the\nprovisions of Paragraphs 5 or 6 of this Agreement, the Consultant agrees that, in addition to the Company’s other remedies at law, at the Company’s\noption, all rights of the Consultant under this Agreement, the Stock Plans, the Awards, the Letter and the Plan may be terminated, and the Company\nshall be entitled without posting any bond to obtain, and the Consultant agrees not to oppose (except to the extent that Consultant maintains that he\ndid not, in fact, engage in any activity in breach of this Agreement) a request for, equitable relief in the form of specific performance, temporary\nrestraining order, temporary or permanent injunction or any other equitable remedy which may then be available, relating to the conduct prohibited\n7\nunder either paragraphs 5 or 6 hereof. The Consultant acknowledges that the granting of a temporary injunction, temporary restraining order or\npermanent injunction merely prohibiting the use of Proprietary Information would not be an adequate remedy upon breach or threatened breach\nhereof. Nothing herein contained shall be construed as prohibiting the Company from pursuing, in addition, any other remedies available to it for\nsuch (or any other) breach or threatened breach.\n(b) In addition to the remedies set forth herein or available to the Company, if Consultant, in Company’s good faith judgment, reasonably\nexercised, at any time during the Consulting Period (and, with respect to breaches of Paragraph 6(e) at any time during the Consulting Period and\ntwo-year period following the Consulting Period), breaches any obligation under this Agreement, the Stock Plans, the Awards, the Letter or the Plan,\nthe Company may immediately terminate any remaining payments and the provision of any other benefits which might otherwise be required this\nAgreement, the Stock Plans, the Awards, the Letter or the Plan, or otherwise due Consultant. Upon any breach, the Company may also recover from\nthe Consultant any payments made under Paragraphs 1(a) and 1(b) hereof (except for the payments described in 1(a)(iii) and 1(a)(iv)), together with\nany proceeds from exercise of any Options or sale of Restricted Stock for which restrictions have lapsed at any time within two years following the\nTermination Date, in each case (cash and stock) net of any state and federal income taxes paid by Consultant. The Company may also recover all\ncost and expenses incurred in any efforts to enforce its rights under this Agreement. The Company shall have the right to set off any amount owed to\nConsultant against any amount owed by Consultant hereunder.\n8. Notices. Any notice required or permitted to be given under this Agreement shall be deemed properly given if in writing and delivered\nby hand and receipt is acknowledged by the party to whom said notice shall be directed, or if mailed by certified or registered mail, postage prepaid\nwith return receipt requested, or sent by express courier service, charges prepaid by shipper, to the addresses of each party stated above and, in the\ncase of notices to the Company, to the attention of its General Counsel at Masco Corporation, 21001 Van Born Road, Taylor, Michigan 48180 (or to\nsuch other address as a party is directed pursuant to written notice from the other party).\n9. Assignment. This Agreement shall not be assignable by either party except by the Company to any subsidiary or affiliate of the\nCompany or to any successor in interest to the Company’s business, and shall be binding upon the Company in the case of any change in control or\nalternate change in control as defined in the Plan.\n10. Entire Agreement. This instrument and the Stock Plans, the Awards, the Letter and the Plan contain the entire agreements of the\nparties relating to the subject of consulting and termination of Consultant’s employment, supersede and replace in their entirety any existing\nemployment agreement or consulting agreement of the Consultant and may not be waived, changed, modified, extended or discharged orally but\nonly by agreement in writing signed by the party against whom enforcement of any such waiver, change, modification, extension or discharge is\nsought. The waiver by the Company of a breach of any provision of this Agreement by the Consultant shall not operate or be construed as a waiver\nof a breach of any other provision or of any subsequent breach by the Consultant.\n8\n11. No Disparagement. Each of the parties agrees not to criticize, disparage or otherwise demean in any way the other or Company’s\naffiliates or their respective products, services, technologies, officers, directors or employees.\n12. RELEASE .\n(a) In consideration of the payments to be made and the agreements and consideration provided by the Company hereunder and the\ncovenants contained in the Letter, Consultant, on Consultant’s own behalf and on behalf of Consultant’s heirs, executors, agents, successors\nand assigns, releases and forever discharges the Company, its subsidiaries and affiliates and their respective officers, agents, current and\nformer employees, successors, predecessors and assigns and any other person, firm, corporation or legal entity in any way related to the\nCompany or its subsidiaries and affiliates (the “Released Parties”), of and from all claims, demands, actions, causes of action, statutory\nrights, duties, debts, sums of money, suits, reckonings, contracts, agreements, controversies, promises, damages, obligations, responsibilities,\nliabilities and accounts of whatsoever kind, nature or description, direct or indirect, in law or in equity, in contract or in tort or otherwise,\nwhich Consultant ever had or which Consultant now has or hereafter can, shall or may have, against any of the Released Parties, for or by\nreason of any matter, cause, or thing whatsoever up to the present time, whether known or unknown, suspected or unsuspected at the\npresent time, or which may be based upon pre-existing acts, claims or events occurring at any time up to the date hereof which may result in\nfuture damages, including without limitation all direct or indirect claims either for direct or consequential damages of any kind whatsoever\nand rights or claims arising under Title VII, any state civil-rights legislation, claims of handicap discrimination, claims relating to the\ntermination of employment as referred to herein, and claims of age discrimination under the Age Discrimination in Employment Act of\n1967, as amended (ADEA), against any of the Released Parties, other than (a) claims arising under the express provisions of this Agreement,\n(b) the right to receive benefits accrued through the end of the employment period under the Company’s benefit plans and (c) claims arising\nunder any applicable worker’s compensation statute. It is the intention of the parties that this general release by the Consultant will be\nconstrued as broadly as possible.\n(b) Consultant has: (i) the sole right, title, and interest to the claims released under this Agreement, (ii) neither assigned or transferred, nor\npurported to assign or transfer, to any person or entity, any claim released by this Agreement, and (iii) neither assigned or transferred, nor purported\nto assign or transfer, to any person or entity, the right to the monies, in whole or in part, being paid pursuant to this Agreement.\n9\n13. Non-Disclosure. Other than to the extent required to perform consulting services hereunder, or as required by applicable securities\nlaws, until such time as this Agreement becomes publicly disclosed by the Company in its required securities filings or otherwise, Consultant shall\nnot disclose the fact of this Agreement or any of its terms to any third parties other than to Consultant’s ex-spouse, tax and financial advisors, banks,\ncreditors, attorneys, significant other and children, each of whom, in turn shall be bound by this paragraph not to further disclose this Agreement.\nConsultant agrees that any violation of this confidentiality provision will result in substantial and irreparable injury to Company. In the event of such\na violation, in addition to the Company’s right to terminate any further payment or benefits as permitted under Paragraph 7, Consultant will also be\nliable to Company for such economic damages and equitable relief as a Court may deem appropriate.\n14. Execution and Revocation. (a) This Agreement was first communicated to Consultant on November 5, 2011. Consultant is not\nrequired to, but may, accept this Agreement by signing and dating this Agreement on or before December 6, 2011 which is in excess of twenty-one\n(21) days from the date this Agreement was first communicated to Consultant.\n(b) Consultant understands that this Agreement may be revoked by him for a period of seven (7) calendar days following his execution of this\nAgreement. The Agreement is not effective until this revocation period has expired. Consultant understands that any revocation to be effective must\nbe in writing and either postmarked within seven (7) days of the execution of this Agreement and addressed to Chuck Greenwood, Vice President—\nHuman Resources, Masco Corporation, 21001 Van Born Road, Taylor, Michigan 48180 or hand delivered within seven (7) days to Chuck\nGreenwood at the address listed above. If revocation is by mail, certified mail, return receipt requested is required to show proof of mailing.\n15. No Payment. No payments or benefits under this Agreement shall be made to Consultant until the seven (7) day revocation period\nhas expired. If Consultant does not revoke this Agreement within the seven (7) day revocation period, then this Agreement shall become binding on\nthe Company and Consultant as otherwise provided herein, and the payments and benefits provided in Paragraph 1 will commence.\n16. Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid\nunder applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or\nrule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement\nwill be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained in this\nAgreement, while giving maximum effort to the intent of the parties as reflected in this Agreement.\n10\n17. Arbitration. The parties hereto agree that arbitration will be the sole and exclusive remedy for any claims which may arise between\nthe parties (other than requests by the Company for immediate or preliminary injunctive relief) in any way relating to this Agreement or for the\nbreach thereof. All such claims shall be submitted to arbitration in accordance with the applicable arbitration rules of the American Arbitration\nAssociation (“AAA”), except as those rules conflict with applicable Delaware law. The award issued by the arbitrator shall be final and binding on\nthe parties, and judgment on the award may be entered in any court of competent jurisdiction. The fees and costs of the arbitrator and the arbitration\nand administrative fees shall be borne equally by the parties. Each party understands and agrees that this arbitration provision constitutes a waiver of\ntheir respective rights to adjudicate all claims in court and before a jury, and the parties are instead opting to arbitrate any such claims. All arbitration\nproceedings will be conducted in the Detroit metropolitan area. This arbitration provision explicitly replaces and supersedes any prior agreements\nbetween the parties concerning mediation or any other alternate dispute resolution.\n18. Headings and Construction. The headings of the Paragraphs are for convenience only and shall not control or affect the meaning or\nconstruction or limit the scope or intent of any of the provisions of this Agreement. The terms “and” and “or” herein shall each be interpreted to\ninclude the other, i.e. “and/or.”\n19. Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement. A facsimile signature, whether by fax or other electronic form, shall be deemed an original\nand shall bind the signing Party\n20. Governing Law. All questions concerning the construction, validity and interpretation of this Agreement will be governed by and\nconstrued in accordance with the domestic laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or\nrule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State\nof Delaware. It is the intent of the parties that the provisions of this Agreement shall be interpreted to be consistent with provisions of Section 409A\nof the Internal Revenue Code.\n11\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.\nMASCO CORPORATION\nBy: /s/ Timothy Wadhams\nIts: President and CEO\n/s/ Donald J. DeMarie, Jr.\nConsultant\nDated: December 6, 2011.\n12\nLOGO\nJanuary 1, 2012\nMr. Donald J. DeMarie\n21001 Van Born Road\nTaylor, Michigan 48180\nDear Mr. DeMarie:\nUnder a Release and Consulting Agreement of even date herewith (the “Agreement”), you and Masco Corporation (“Company” or “Masco”)\nhave agreed to a termination of your employment with Masco on January 1, 2012 and the commencement of a consulting relationship running from\nJanuary 1, 2012 through December 31, 2013 (the “Consulting Period”). In connection with that change in your employment relationship, this letter\nsets forth a modification to letters from Masco for Awards of restricted stock (“Grants”) made prior to the date hereof for Masco’s common stock\npursuant to Masco’s 1991 and 2005 Long Term Stock Incentive Plans (“Stock Plans”). Terms which are capitalized herein and not otherwise defined,\nhave their meaning as defined in the Agreement.\n1) The letters making Options on and after February 16, 2000 in each case included an Appendix with the following language (for Options\nmade after December, 2008 the following language is included in the computerized text captioned “Terms and Conditions”) (the “Clawback”):\nIf your employment with the Company [i.e., Masco] or any of its subsidiaries is terminated for any reason, other than death,\npermanent and total disability, retirement on or after normal retirement date or the sale or other disposition of the business or subsidiary\nemploying you, and other than termination of employment in connection with a Change in Control, and if any installments of the Option\nor any restoration options granted upon any exercise of the Option became exercisable within the two year period prior to the date of\nsuch termination (such installments and restoration options being referred to as the “Subject Options”), by accepting the Option you\nagree that the following provisions will apply:\n21001 VAN BORN ROAD\nTAYLOR, MICHIGAN 48180\n313-274-7400\nMr. Donald J. DeMarie\nJanuary 1, 2012\nPage 2\n(1) Upon the demand of the Company you will pay to the Company in cash within 30 days after the date of such termination the\namount of income realized for income tax purposes from the exercise of any Subject Options, net of all federal, state and other\ntaxes payable on the amount of such income, plus all costs and expenses of the Company in any effort to enforce its rights\nhereunder; and\n(2) Any right you would otherwise have, pursuant to the terms of the Stock Plan and this Agreement, to exercise any Subject\nOptions on or after the date of such termination, shall be extinguished as of the date of such termination.\n2) Such letters granting Options and those letters making Grants on and after July 5, 2000 also included the following language in which you\nagreed not to become associated in any Prohibited Capacity in certain Business Activities (the “Non-Compete”) and (in the second of the two\nparagraphs) requiring you to repay certain amounts to the Company if you breach or challenge such obligations (the “Recapture”). (For brevity,\nparagraphs from the Option Appendices (contained in “Terms and Conditions” in post-2008 Options) follow; paragraphs from the Grant Appendices\n(contained in “Terms and Conditions” in post-2008 Grants) are substantially identical except with appropriately changed reference to Grants rather\nthan Options, and are hereby incorporated by reference as if set forth herein):\nIn addition you agree, in consideration for the grant of the Option and regardless of whether the Option becomes exercisable or is\nexercised, while you are employed or retained as a consultant by the Company or any of its subsidiaries and for a period of one year following\nany termination of your employment and, if applicable, any consulting relationship with the Company or any of its subsidiaries other than a\ntermination in connection with a Change in Control, not to engage in, and not to become associated in a “Prohibited Capacity” (as hereinafter\ndefined) with any other entity engaged in, any “Business Activities” (as hereinafter defined) and not to encourage or assist others in\nencouraging any employee of the Company or any of its subsidiaries to terminate employment or to become engaged in any such Prohibited\nCapacity with an entity engaged in any Business Activities. “Business Activities” shall mean the design, development, manufacture, sale,\nmarketing or servicing of any product or providing of services competitive with the products or services of (x) the Company or any subsidiary\nif you are employed by or consulting with the Company at any time the Option is outstanding, or (y) the subsidiary employing or retaining you\nat any time while the Option is outstanding, to the extent such competitive products or services are distributed or provided either (1) in the\nsame geographic area as are such products or services of the Company or any of its subsidiaries, or (2) to any of the same customers as such\nproducts or services of the Company or any of its subsidiaries are distributed or provided. “Prohibited Capacity” shall mean being associated\nMr. Donald J. DeMarie\nJanuary 1, 2012\nPage 3\nwith an entity as an employee, consultant, investor or another capacity where (1) confidential business information of the Company or any of\nits subsidiaries could be used in fulfilling any of your duties or responsibilities with such other entity, (2) any of your duties or responsibilities\nare similar to or include any of those you had while employed or retained as a consultant by the Company or any of its subsidiaries, or (3) an\ninvestment by you in such other entity represents more than 1% of such other entity’s capital stock, partnership or other ownership interests.\nShould you either breach or challenge in judicial or arbitration proceedings the validity of any of the restrictions contained in the\npreceding paragraph, by accepting the Option you agree, independent of any equitable or legal remedies that the Company may have and\nwithout limiting the Company’s right to any other equitable or legal remedies, to pay to the Company in cash immediately upon the demand of\nthe Company (1) the amount of income realized for income tax purposes from the exercise of any portion of the Option, and any restoration\noptions granted upon any exercise of the Option, net of all federal, state and other taxes payable on the amount of such income (and reduced by\nany amount already paid to the Company under the [paragraph containing the Clawback for Options]) but only to the extent such exercises\noccurred on or after your termination of employment or, if applicable, any consulting relationship with the Company or its subsidiary or within\nthe two year period prior to the date of such termination, plus (2) all costs and expenses of the Company in any effort to enforce its rights\nunder this or the preceding paragraph. The Company shall have the right to set off or withhold any amount owed to you by the Company or\nany of its subsidiaries or affiliates for any amount owed to the Company by you hereunder.\n3) In consideration of the mutual covenants and certain payments and other benefits to be received by you under this letter agreement\n(“Letter”) and under the Agreement, you and Masco hereby agree (i) Masco agrees to waive the Clawbacks, (ii) you agree that the Non-Compete\nparagraph (set forth above as the first paragraph quoted in Section 2) is hereby deleted in its entirety and is replaced by the following paragraphs (the\n“New Non-Compete”):\nIn order to protect the Company and its subsidiaries from your competitive use of the substantial Proprietary Information and goodwill gained\nby you in your employment and consulting relationships with the Company and its subsidiaries, you agree that during the Consulting Period,\nyou shall not, directly or indirectly: (a) engage in or assist in the design, development, evaluation, planning, manufacture, sale, or marketing of\nany products, technologies, or services that compete with or could displace those designed, sold, manufactured, designed, evaluated, marketed,\nplanned or developed by the Company (whether solely or in conjunction with other subsidiaries of the Company or their employees) at any\ntime during your employment with the Company or any subsidiary or consultation with the Company (the ‘Business Activities’), whether such\nengagement is as an officer, director, proprietor, employee, partner, investor (other than as a holder of less than 1% of the outstanding capital\nstock of a publicly traded\nMr. Donald J. DeMarie\nJanuary 1, 2012\nPage 4\ncorporation), consultant, advisor, agent or otherwise in any geographic areas in which the products, technologies, or services of the Company\nor any of its subsidiaries, are at that time distributed or planned to be distributed. Business Activities, include, but are not limited to the design,\ndevelopment, evaluation, manufacture, sale, planning and marketing of plumbing products, installation of insulation, windows, window\nframes, paint, cabinets, tub and shower enclosures, hardware, other building and home products or services, and all other products,\ntechnologies and services offered or sold by the Company or any of its subsidiaries; (b) be engaged (other than on behalf of the Company)\nwhether as an officer, director, proprietor, employee, partner, investor (other than as a holder of less than 1% of the outstanding capital stock of\na publicly traded corporation), consultant, advisor, agent or otherwise, (i) as a supplier to any customer with whom the Company or any of its\nsubsidiaries has done business during your employment or consultation with the Company or any of its subsidiaries or (ii) on behalf of any\ncustomer of, or supplier to, the Company or any of its subsidiaries, with whom the Company or any of its subsidiaries has done business\nduring your employment or consultation with the Company or any of its subsidiaries; (c) assist others in engaging in any of the Business\nActivities in the manner prohibited to you; or (d) induce employees of the Company or any of its subsidiaries to engage in any activities that\nare prohibited to you. In addition, during the Consulting Period and for a two-year period following the Consulting Period, you shall not,\ndirectly or indirectly: (e) knowingly induce employees of the Company or any of its subsidiaries to terminate their employment.\nIt is expressly understood and agreed that although you and the Company consider the restrictions contained in each of clauses (a) through\n(e) above reasonable for the purpose of preserving for the Company and its subsidiaries their good will, trade secrets, proprietary rights and\nongoing business value, if a final judicial determination is made by a court having jurisdiction that the time and territory or any other\nrestriction contained in the foregoing Paragraph is an unenforceable restriction on your activities, the provisions of the foregoing Paragraph\nshall not be rendered void but shall be deemed amended to apply as to such maximum time, territory and activities as such court may judicially\ndetermine or indicate to be reasonable;\n(iii) Masco agrees to the continued lapsing of restrictions on all of the shares under the Grants following your termination of employment; (iv) you\nacknowledge that the consideration conveyed to you by the continued lapsing of restrictions on Grants is good and sufficient consideration for the\nConsulting Services which are required of you under the Agreement, and that, among other Remedies provided upon breach as described in\nSection 7 of the Agreement, your breach of the Agreement or of the Grants or this Letter shall thereupon cause the termination of any further lapsing\nof restrictions otherwise provided in subsection (iii) hereinabove; (v) you hereby specifically (and without limitation) acknowledge and agree to the\napplicability of subparagraphs (a), (b), (c) and (d) of the New Non-Compete during the Consulting Period and to the applicability of subparagraph\n(e) of the New Non-Compete during the Consulting Period and for a period of two years thereafter and, upon the breach of any such provisions of\nthe New Non-Compete during the respective periods, you agree, in addition to any other equitable or legal remedies that Masco may have and\nwithout limiting Masco’s right to any\nMr. Donald J. DeMarie\nJanuary 1, 2012\nPage 5\nother equitable or legal remedies, to pay to Masco in cash immediately upon the demand of Masco the amount of income realized for income tax\npurposes from (A) the exercise of any portion of any option granted under the Stock Plans, net of all federal, state and other taxes payable on the\namount of such income, but only to the extent such exercise occurred on or after your termination of employment and (B) income realized from any\ngrant of shares of Restricted Stock under the Stock Plans, net of all federal, state and other taxes payable on the amount of such income, but only to\nthe extent such income is realized from restrictions lapsing on shares (if any) within the two years after your termination of employment, plus in all\ncases all costs and expenses of Masco incurred in any effort to enforce its rights under this paragraph or under the New Non-Competes (or the Non-\nCompetes, with reference to any time prior to the date hereof). Masco shall have the right to set off or withhold any amount owed to you by Masco\nfor any amount owed by you hereunder.\n4) In light of your position with the Company possessing non-public information, including with respect to our 2011 results of operations, and\nyour continuing relationship with the Company as a Consultant under the Agreement, you agree that you will comply with the provisions of the\nMasco Corporation Policy Against Trading on Inside Information so long as you are a Consultant under the Agreement, including that you will not\nengage in transactions in the Company’s securities until the second day following the Company’s release of its 2011 results of operations, expected\nto occur in the first quarter of 2012.\nIf you are in agreement with the foregoing, please evidence your agreement by signing and returning the enclosed duplicate copy of this Letter\nto the undersigned, whereupon (but no sooner than the time the Agreement shall become finally effective pursuant to its Paragraphs 14 and 15) the\nprovisions of this Letter shall become effective.\nVery truly yours,\n/s/ Timothy Wadhams\nTimothy Wadhams\nPresident and Chief Executive Officer\nAgreed:\n/s/ Donald D. Marie, Jr.\n/s/ December 6, 2011\nDonald J. DeMarie, Jr.\nDate	EX-10.J 11 d276684dex10j.htm NON-COMPETE, NON-DISCLOSURE, NON-DISPARAGEMENT, RELEASE AND\nCONSULTING AGREEMENT\nExhibit 10.j\nNON-COMPETE, NON-DISCL.OSURE, NON-DISPARAGEMENT, RELEASE AND\nCONSULTING AGREEMENT\nThis Agreement is dated as of January 1, 2012 and is between Donald J. DeMarie, Jr. (the “Consultant”) and Masco Corporation (a Delaware\ncorporation), with a business address of 21001 Van Born Road, Taylor, MI 48180 (the “Company”).\nWHEREAS, Consultant has been the Executive Vice President and Chief Operating Officer for the Company, and\nWHEREAS, Consultant has established close business relationships with executives and other employees of the Company’s suppliers of\nmaterials and services used in the manufacture or sale of the Company’s products and services; and\nWHEREAS, Consultant has also established close business relationships with executives and other employees of the Company’s customers,\nincluding retailers, builders, wholesalers, distributors, dealers; and\nWHEREAS, Consultant has also established close business relationships with executives and other employees of investors, lenders and\nadvisors of the Company (both actual and prospective); and\nWHEREAS, Consultant has gained detailed knowledge of the Company’s operations, processes, finances, products, services and business and\nlegal strategies; and\nWHEREAS, the Company desires that, effective November 4, 2011 the Consultant be removed from his office as Executive Vice President and\nChief Operating Officer of the Company and all other offices and directorships he holds for any of the Company’s subsidiaries and affiliates, and that\neffective January 1, 2012 he be terminated from his employment with the Company and thereafter provide the Company, its subsidiaries and\naffiliates, with consulting services through December 31, 2013, and from time to time thereafter, all on the terms and conditions provided herein, and\nWHEREAS, the Consultant has been given the opportunity to review this Agreement, and has been advised to consult and has consulted legal\ncounsel to ascertain whether the Consultant has any potential rights or remedies which by the Consultant’s execution of this Agreement are waived\nand released, and\nWHEREAS, the Consultant and the Company, without any admission of liability, desire to settle with finality, compromise, dispose of, and\nrelease any claims and demands of the Consultant which have been or could be asserted, whether arising out of the Consultant’s employment by or\ntermination from the Company or otherwise;\nNOW THEREFORE, the parties agree as follows:\n1. Termination of Employment and Separation Benefits. Effective January 1, 2012 (“Termination Date”), Consultant’s employment\nwith the Company shall be terminated.\n(a) In consideration for the Release given by the Consultant in Paragraph 12 hereof, the Company agrees (i) to pay the Consultant $1,130,010\nin 15 installments of $75,334 each on or about the first of each of the months January, 2012 through March, 2013; to pay Consultant $499,995 in\nnine installments of $55,555 each on or about the first of each of the months April, 2013 through December, 2013; (iii) to pay the Consultant the sum\nof $16,200 as reimbursement for 18 months of COBRA health coverage, in monthly payments of $900 each during the initial 18 months following\nthe Termination Date; and (iv) to provide the Consultant outplacement services through a vendor selected by Consultant and paid by the Company;\nprovided, that the cost of such outplacement services will not exceed $50,000, which services shall be rendered, and payment therefor made, on or\nbefore December 31, 2013.\n(b) the Company agrees to pay the Consultant (i) an amount equal to any FY 2011 bonus he would have received as a continuing employee, at\nor about the same time as such bonuses may be paid to other Company and (ii)an amount equal to the fully vested value of any FY 2011\nperformance restricted stock award he would have received as a continuing employee, at or about the same time such awards may be granted to other\nCompany executives, in each such case on or before December 31, 2012.\n(c) the Consultant recognizes that the consideration to be provided pursuant to Paragraphs 1(a) and 1(b) is in each case stated as a gross\namount before applicable payroll tax withholding, and is in excess of any earned wages or benefits due and owing the Consultant by virtue of his\nemployment with the Company or otherwise.\n(d) Consultant agrees that he shall faithfully and continuously make himself available as an employee to render whatever services may be\nrequired of him by the Company at all times up to and including the Termination Date.\n(e) Consultant shall be paid for his four weeks’ 2012 vacation eligibility in cash promptly following the Termination Date.\n(f) The Consultant will be eligible, based on his being employed as of December 31, 2011, for a contribution (if declared generally by the\nCompany’s Compensation Committee) to the Company’s Future Service Profit Sharing Plan and the Benefits Restoration Plan based on those plans’\nprovisions.\n2. Duties During and After the Consulting Period.\n(a) During the Consulting Period (as hereinafter defined), the Consultant shall perform and discharge well and faithfully consulting services as\nmay be assigned to Consultant from time to time by the Company’s President and Chief Executive Officer, or any other officer or executive of\nMasco Corporation with oversight responsibility for the Company, or such other person as the President and Chief Executive Officer might designate\nin writing. Such services may include, but not be limited to:\n(i) provision of information concerning the Consultant’s past activities or areas of experience or expertise;\n(ii) participation in phone calls or in meetings with representatives or attorneys of the Company or any of its subsidiaries or\nwith customers, vendors, or suppliers to the Company or any of its subsidiaries;\n(iii) the preparation of marketing studies or studies on competitive trends for the products or services sold by the Company or\nany of its subsidiaries;\n(iv) prompt assistance to, and full cooperation with, the Company in any Company investigation, or with respect to any\ndispute, or any administrative, regulatory or legal proceedings; and\n(v) active and completely focused participation in litigation as a trial witness, deponent, declarant or source of information,\nwithout requiring service of subpoena or other legal process, and when desired, in the Company’s sole discretion, by providing\nimmediate response to requests for assistance.\nAll such services shall be provided promptly and completely and shall involve the full cooperation and best efforts of the Consultant in order\nto meet the goals and direction of the Company, as such may be determined in the Company’s sole discretion. Such services are being significantly\ncompensated, and Consultant acknowledges that such efforts may require substantial time on an as-needed basis. In no event will the Consultant’s\nduties require the relocation of the Consultant from the Consultant’s then-current residence.\n(b) During the pendency of any litigation or other proceeding involving the Company, Consultant shall not communicate with anyone (other\nthan Consultant’s and Company’s attorneys) with respect to any facts relating to, or the subject matter of, any pending or potential litigation or\nregulatory or administrative proceeding involving the Company or any of its subsidiaries, except as directed by the Company or as required by\ncompulsory process or court order. Consultant acknowledges that the Company’s litigation strategies, and the Company’s and its subsidiaries’\nbusiness strategies and conduct which may be the subject of litigation, are highly confidential. In the event of such compulsory process or Court\norder, Consultant shall immediate notify the Company thereof and fully cooperate with the Company in any response thereto and related actions.\n(c) It is agreed that the Consultant shall be an independent contractor and shall not be the employee, servant, agent, partner or joint venturer of\nthe Company, or any of its officers, directors or employees. The Consultant has no authority to assume or create any obligation or liability, express or\nimplied, on behalf of the Company, or in the name of the Company or to bind the Company in any manner whatsoever.\n3\n(d) The Consultant shall devote such time, attention and energies to such services for the Company as the Company shall direct. The\nConsultant acknowledges that time is of the essence in the performance of such services, and Consultant’s failure to promptly, fully and completely\nprovide such services within the time desired by the Company shall constitute a material breach of this Agreement. The consulting services provided\nhereunder shall not exceed in any year twenty percent (20%) of the time the Consultant spent during 2011 while an employee of the Company.\n(e) Consultant shall make it clear to any prospective future employer, client, joint venturer or other recipient of his future services that\nConsultant has all of the foregoing obligations under this Agreement, and that any future provision of his services is subject to his fulfillment of such\nobligations.\n(f) Following the Consulting Period, Consultant will make himself available to the Company from time to time for additional consulting; in\nthis regard, both the Company and the Consultant will undertake their best efforts to assure that the Consultant will be able to perform such\nconsultancy as reasonably needed by the Company in a manner consistent with any other employment obligations possessed at that time by the\nConsultant as mutually agreed upon under a separate consulting relationship between the parties in the future. The parties expect that such consulting\nshall be limited in duration and may involve matters arising in the course of litigation either at trial or from appellate decisions.\n3. Term of Consulting Relationship. The consulting relationship under Paragraph 2 of this Agreement shall be for a period (the\n“Consulting Period”) commencing January 1, 2012, and ending December 31, 2013, unless sooner terminated by written notice of termination from\nthe Company in the event that (i) the Consultant has been convicted of or pled guilty or nolo contendere to a crime involving moral turpitude or a\ncrime providing for a term of imprisonment; or (ii) current alcohol or other substance abuse on the part of the Consultant (whether or not constituting\na crime, or the Consultant’s willful misconduct); or (iii) the Consultant’s failure to follow the instructions of the President and Chief Executive\nOfficer of the Company, or other officers or executives of the Company, or the Consultant’s neglect of duties, but in each such case only following\nwritten notice thereof; or (iv) the Consultant has breached any other obligation under this Agreement, the Stock Plans, the Awards, the Letter or the\nPlan (as hereinafter defined). If the Consulting Period is terminated for any of the reasons set forth in the preceding sentence, the rights of the\nConsultant under Paragraphs 1(a) and 1(b) and to the fees set forth in Paragraph 4 hereof shall cease on the date of such termination (and are subject\nto recovery by the Company as provided in paragraph 3(vi) of the Letter), and the Company shall have no further obligation to the Consultant under\nany of the provisions of this Agreement or the other referenced agreements. Termination shall not, however, affect the provisions of Paragraphs 5\nthrough 13 or 17 through 20, each of which shall survive any termination in accordance with their terms. Consultant’s termination of this Agreement\nwithout cause shall\nconstitute a material breach of this Agreement. If the Consulting Period is terminated by reason of the Consultant’s death, to the extent then not paid\nto the Consultant, the payments under Paragraphs 1(a) and 1(b) and the fees set forth in Paragraph 4(a)(i) hereof shall be made to the Consultant’s\nestate. Survivor rights with respect to the fees described in Paragraph 4(a)(ii) shall be as determined under applicable beneficiary and other\nprovisions embodied in the Stock Plans and Awards as modified by the Letter.\n4. Consulting Period Compensation.\n(a) In full satisfaction for any and all services rendered by the Consultant hereunder, (i) during the period beginning January 1, 2012 and\nending December 31, 2013 the Consultant will be paid, on a monthly basis, a consulting fee in the gross amount of $2084.00 in consecutive monthly\ninstallments on or about the 15th of each month with respect to the immediately preceding month and (ii) the Consultant’s rights and obligations\nunder provisions of the Masco Corporation 1991 and 2005 Long Term Stock Incentive Plans (“Stock Plans™) and the Awards of restricted stock\nmade in letters previously issued to the Consultant pursuant to the Stock Plans (collectively, “Awards™) shall continue vesting following the\nTermination Date only in accordance with the provisions of the Stock Plans and Awards and that certain letter agreement between the Consultant and\nthe Company of even date herewith (“Letter”). Following the Consulting Period, for any consulting services rendered to the Company from time to\ntime, the Consultant shall be paid at a rate as agreed by the parties which shall be commensurate with the Consultant’s cash compensation as in effect\nduring 2011 as mutually agreed upon under a separate consulting relationship between the parties in the future.\n(b) The payments and extended stock vesting set forth in Paragraph 4(a)(i) and (ii) are given in consideration of both the Consultant’s services\nand the Consultant’s immediate on-call availability to perform such services when requested. In addition to such fees, the Company agrees to\nreimburse the Consultant for travel and reasonable living expenses away from the Consultant’s residence directly incurred by the Consultant at the\nCompany’s request in performing such services for the Company or as approved by the Company in advance. The Consultant agrees to keep\naccurate expense records in the form requested by the Company and to provide the Company with such records upon request.\n(c) Other than benefits accrued under the Company’s benefit plans through the Termination Date, and pursuant to that certain Supplemental\nExecutive Retirement Plan as described in the letter agreement dated July 1, 2006 as amended (the “Plan”), the Consultant shall not receive any\nother compensation from the Company nor shall he participate in or receive benefits under any of the Company’s employee fringe benefit programs\nor receive any other fringe benefits from the Company on account of services hereunder (including without limitation health, disability, life\ninsurance, retirement, pension and profit sharing benefits).\n5. Disclosure of Information. The Consultant acknowledges that the Company’s and its subsidiaries’ trade secrets, private or secret\nprocesses as they exist from time to time, and information concerning products, developments, manufacturing techniques, new\n5\nproduct plans, equipment, inventions, discoveries, patent applications, ideas, designs, engineering drawings, sketches, renderings, other drawings,\nmanufacturing and test data, computer programs, progress reports, materials, costs, specifications, processes, methods, research, procurement and\nsales activities and procedures, Company business strategies, litigation or legal strategies, promotion or pricing techniques or credit or financial data\nconcerning customers of the Company or its subsidiaries as well as information relating to the management, operation or planning of the Company\nor its subsidiaries which, in each such case, has not been made public (or, if made public, such disclosure must not have been made by the\nConsultant) (the “Proprietary Information”) are valuable, special and unique assets of the Company and its subsidiaries. In light of the highly\ncompetitive nature of the industries in which the Company and its subsidiaries conduct their businesses, the Consultant agrees that all Proprietary\nInformation heretofore or in the future obtained by the Consultant as a result of the Consultant’s relationship with the Company and its subsidiaries\nshall be considered confidential. In recognition of this fact, the Consultant agrees that he will, during and after the Consulting Period, keep the\nProprietary Information strictly confidential, will not disclose any of such Proprietary Information to any person or entity for any reason or purpose\nwhatsoever (except as directed by the Company), and he will not make use of any Proprietary Information for his own purposes or for the benefit of\nany other person or entity (except the Company and its subsidiaries) under any circumstances.\n6. Non-Competition. In order to protect the Company and its subsidiaries from the Consultant’s competitive use of the substantial\nProprietary Information and goodwill gained by the Consultant in his employment and consulting relationships with the Company and its\nsubsidiaries, the Consultant agrees that during the Consulting Period Consultant shall not, directly or indirectly:\n(a) Engage in or assist in the design, development, evaluation, planning, manufacture, sale, or marketing of any products,\ntechnologies, or services that compete with or could displace those designed, sold, manufactured, designed, evaluated, marketed,\nplanned or developed by the Company (whether solely or in conjunction with other subsidiaries of the Company or their\nemployees) at any time during the Consultant’s employment with the Company or any subsidiary or consultation with the\nCompany (the ‘Business Activities’), whether such engagement is as an officer, director, proprietor, employee, partner, investor\n(other than as a holder of less than 1% of the outstanding capital stock of a publicly traded corporation), consultant, advisor, agent\nor otherwise in any geographic areas in which the products, technologies, or services of the Company or any of its subsidiaries,\nare at that time distributed or planned to be distributed. Business Activities, include, but are not limited to, the design,\ndevelopment, evaluation, manufacture, sale, planning and marketing of plumbing products, installation of insulation, windows,\nwindow frames, paint, cabinets, tub and shower enclosures, hardware, other building and home products or services, and all other\nproducts, technologies and services offered or sold by the Company or any of its subsidiaries;\n6\n(b)  Be engaged (other than on behalf of the Company) whether as an officer, director, proprietor, employee, partner, investor (other\nthan as a holder of less than 1% of the outstanding capital stock of a publicly traded corporation), consultant, advisor, agent or\notherwise, (i) as a supplier to any customer with whom the Company or any of its subsidiaries has done business during\nConsultant’s employment or consultation with the Company or any of its subsidiaries; or (ii) on behalf of any customer of, or\nsupplier to, the Company or any of its subsidiaries, with whom the Company or any of its subsidiaries has done business during\nConsultant’s employment or consultation with the Company or any of its subsidiaries;\n(© Assist others in engaging in any of the Business Activities in the manner prohibited to the Consultant; or\n(d)  Induce employees of the Company or any of its subsidiaries to engage in any activities that are prohibited to the Consultant.\nIn addition, during the Consulting Period and for a two-year period following the Consulting Period, the Consultant shall not, directly or\nindirectly:\n(e) Knowingly induce employees of the Company or any of its subsidiaries to terminate their employment.\nIt is expressly understood and agreed that although the Consultant and the Company consider the restrictions contained in each of clauses (a) through\n(e) above reasonable for the purpose of preserving for the Company and its subsidiaries their good will, trade secrets, proprietary rights and ongoing\nbusiness value, if a final judicial determination is made by a court having jurisdiction that the time and territory or any other restriction contained in\nthis Paragraph is an unenforceable restriction on the activities of the Consultant, the provisions of this Paragraph shall not be rendered void but shall\nbe deemed amended to apply as to such maximum time, territory and activities as such court may judicially determine or indicate to be reasonable.\n7. Remedies.\n(a) The Consultant acknowledges and agrees that the Company’s remedy at law for a breach or threatened breach of any of the provisions of\nParagraphs 5 or 6 of this Agreement would be inadequate and, in recognition of this fact, in the event of a breach by the Consultant of any of the\nprovisions of Paragraphs 5 or 6 of this Agreement, the Consultant agrees that, in addition to the Company’s other remedies at law, at the Company’s\noption, all rights of the Consultant under this Agreement, the Stock Plans, the Awards, the Letter and the Plan may be terminated, and the Company\nshall be entitled without posting any bond to obtain, and the Consultant agrees not to oppose (except to the extent that Consultant maintains that he\ndid not, in fact, engage in any activity in breach of this Agreement) a request for, equitable relief in the form of specific performance, temporary\nrestraining order, temporary or permanent injunction or any other equitable remedy which may then be available, relating to the conduct prohibited\n7\nunder either paragraphs 5 or 6 hereof. The Consultant acknowledges that the granting of a temporary injunction, temporary restraining order or\npermanent injunction merely prohibiting the use of Proprietary Information would not be an adequate remedy upon breach or threatened breach\nhereof. Nothing herein contained shall be construed as prohibiting the Company from pursuing, in addition, any other remedies available to it for\nsuch (or any other) breach or threatened breach.\n(b) In addition to the remedies set forth herein or available to the Company, if Consultant, in Company’s good faith judgment, reasonably\nexercised, at any time during the Consulting Period (and, with respect to breaches of Paragraph 6(e) at any time during the Consulting Period and\ntwo-year period following the Consulting Period), breaches any obligation under this Agreement, the Stock Plans, the Awards, the Letter or the Plan,\nthe Company may immediately terminate any remaining payments and the provision of any other benefits which might otherwise be required this\nAgreement, the Stock Plans, the Awards, the Letter or the Plan, or otherwise due Consultant. Upon any breach, the Company may also recover from\nthe Consultant any payments made under Paragraphs 1(a) and 1(b) hereof (except for the payments described in 1(a)(iii) and 1(a)(iv)), together with\nany proceeds from exercise of any Options or sale of Restricted Stock for which restrictions have lapsed at any time within two years following the\nTermination Date, in each case (cash and stock) net of any state and federal income taxes paid by Consultant. The Company may also recover all\ncost and expenses incurred in any efforts to enforce its rights under this Agreement. The Company shall have the right to set off any amount owed to\nConsultant against any amount owed by Consultant hereunder.\n8. Notices. Any notice required or permitted to be given under this Agreement shall be deemed properly given if in writing and delivered\nby hand and receipt is acknowledged by the party to whom said notice shall be directed, or if mailed by certified or registered mail, postage prepaid\nwith return receipt requested, or sent by express courier service, charges prepaid by shipper, to the addresses of each party stated above and, in the\ncase of notices to the Company, to the attention of its General Counsel at Masco Corporation, 21001 Van Born Road, Taylor, Michigan 48180 (or to\nsuch other address as a party is directed pursuant to written notice from the other party).\n9. Assignment. This Agreement shall not be assignable by either party except by the Company to any subsidiary or affiliate of the\nCompany or to any successor in interest to the Company’s business, and shall be binding upon the Company in the case of any change in control or\nalternate change in control as defined in the Plan.\n10. Entire Agreement. This instrument and the Stock Plans, the Awards, the Letter and the Plan contain the entire agreements of the\nparties relating to the subject of consulting and termination of Consultant’s employment, supersede and replace in their entirety any existing\nemployment agreement or consulting agreement of the Consultant and may not be waived, changed, modified, extended or discharged orally but\nonly by agreement in writing signed by the party against whom enforcement of any such waiver, change, modification, extension or discharge is\nsought. The waiver by the Company of a breach of any provision of this Agreement by the Consultant shall not operate or be construed as a waiver\nof a breach of any other provision or of any subsequent breach by the Consultant.\n8\n11. No Disparagement. Each of the parties agrees not to criticize, disparage or otherwise demean in any way the other or Company’s\naffiliates or their respective products, services, technologies, officers, directors or employees.\n12. RELEASE.\n(a) In consideration of the payments to be made and the agreements and consideration provided by the Company hereunder and the\ncovenants contained in the Letter, Consultant, on Consultant’s own behalf and on behalf of Consultant’s heirs, executors, agents, successors\nand assigns, releases and forever discharges the Company, its subsidiaries and affiliates and their respective officers, agents, current and\nformer employees, successors, predecessors and assigns and any other person, firm, corporation or legal entity in any way related to the\nCompany or its subsidiaries and affiliates (the “Released Parties™), of and from all claims, demands, actions, causes of action, statutory\nrights, duties, debts, sums of money, suits, reckonings, contracts, agreements, controversies, promises, damages, obligations, responsibilities,\nliabilities and accounts of whatsoever kind, nature or description, direct or indirect, in law or in equity, in contract or in tort or otherwise,\nwhich Consultant ever had or which Consultant now has or hereafter can, shall or may have, against any of the Released Parties, for or by\nreason of any matter, cause, or thing whatsoever up to the present time, whether known or unknown, suspected or unsuspected at the\npresent time, or which may be based upon pre-existing acts, claims or events occurring at any time up to the date hereof which may result in\nfuture damages, including without limitation all direct or indirect claims either for direct or consequential damages of any kind whatsoever\nand rights or claims arising under Title VII, any state civil-rights legislation, claims of handicap discrimination, claims relating to the\n1967, as amended (ADEA), against any of the Released Parties, other than (a) claims arising under the express provisions of this Agreement,\n(b) the right to receive benefits accrued through the end of the employment period under the Company’s benefit plans and (c) claims arising\nunder any applicable worker’s compensation statute. It is the intention of the parties that this general release by the Consultant will be\nconstrued as broadly as possible.\n(b) Consultant has: (i) the sole right, title, and interest to the claims released under this Agreement, (ii) neither assigned or transferred, nor\npurported to assign or transfer, to any person or entity, any claim released by this Agreement, and (iii) neither assigned or transferred, nor purported\nto assign or transfer, to any person or entity, the right to the monies, in whole or in part, being paid pursuant to this Agreement.\n9\n13. Non-Disclosure. Other than to the extent required to perform consulting services hereunder, or as required by applicable securities\nlaws, until such time as this Agreement becomes publicly disclosed by the Company in its required securities filings or otherwise, Consultant shall\nnot disclose the fact of this Agreement or any of its terms to any third parties other than to Consultant’s ex-spouse, tax and financial advisors, banks,\ncreditors, attorneys, significant other and children, each of whom, in turn shall be bound by this paragraph not to further disclose this Agreement.\nConsultant agrees that any violation of this confidentiality provision will result in substantial and irreparable injury to Company. In the event of such\na violation, in addition to the Company’s right to terminate any further payment or benefits as permitted under Paragraph 7, Consultant will also be\nliable to Company for such economic damages and equitable relief as a Court may deem appropriate.\n14. Execution and Revocation. (a) This Agreement was first communicated to Consultant on November 5, 2011. Consultant is not\nrequired to, but may, accept this Agreement by signing and dating this Agreement on or before December 6, 2011 which is in excess of twenty-one\n(21) days from the date this Agreement was first communicated to Consultant.\n(b) Consultant understands that this Agreement may be revoked by him for a period of seven (7) calendar days following his execution of this\nAgreement. The Agreement is not effective until this revocation period has expired. Consultant understands that any revocation to be effective must\nbe in writing and either postmarked within seven (7) days of the execution of this Agreement and addressed to Chuck Greenwood, Vice President—\nHuman Resources, Masco Corporation, 21001 Van Born Road, Taylor, Michigan 48180 or hand delivered within seven (7) days to Chuck\nGreenwood at the address listed above. If revocation is by mail, certified mail, return receipt requested is required to show proof of mailing.\n15. No Payment. No payments or benefits under this Agreement shall be made to Consultant until the seven (7) day revocation period\nhas expired. If Consultant does not revoke this Agreement within the seven (7) day revocation period, then this Agreement shall become binding on\nthe Company and Consultant as otherwise provided herein, and the payments and benefits provided in Paragraph 1 will commence.\n16. Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid\nunder applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or\nrule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement\nwill be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained in this\nAgreement, while giving maximum effort to the intent of the parties as reflected in this Agreement.\n10\n17. Arbitration. The parties hereto agree that arbitration will be the sole and exclusive remedy for any claims which may arise between\nthe parties (other than requests by the Company for immediate or preliminary injunctive relief) in any way relating to this Agreement or for the\nbreach thereof. All such claims shall be submitted to arbitration in accordance with the applicable arbitration rules of the American Arbitration\nAssociation (“AAA”), except as those rules conflict with applicable Delaware law. The award issued by the arbitrator shall be final and binding on\nthe parties, and judgment on the award may be entered in any court of competent jurisdiction. The fees and costs of the arbitrator and the arbitration\nand administrative fees shall be borne equally by the parties. Each party understands and agrees that this arbitration provision constitutes a waiver of\ntheir respective rights to adjudicate all claims in court and before a jury, and the parties are instead opting to arbitrate any such claims. All arbitration\nproceedings will be conducted in the Detroit metropolitan area. This arbitration provision explicitly replaces and supersedes any prior agreements\nbetween the parties concerning mediation or any other alternate dispute resolution.\n18. Headings and Construction. The headings of the Paragraphs are for convenience only and shall not control or affect the meaning or\nconstruction or limit the scope or intent of any of the provisions of this Agreement. The terms “and” and “or” herein shall each be interpreted to\ninclude the other, i.e. “and/or.”\n19. Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement. A facsimile signature, whether by fax or other electronic form, shall be deemed an original\nand shall bind the signing Party\n20. Governing Law. All questions concerning the construction, validity and interpretation of this Agreement will be governed by and\nconstrued in accordance with the domestic laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or\nrule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State\nof Delaware. It is the intent of the parties that the provisions of this Agreement shall be interpreted to be consistent with provisions of Section 409A\nof the Internal Revenue Code.\n11\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. Dated: December 6, 2011.\nMASCO CORPORATION\nBy: /s/ Timothy Wadhams\nIts: President and CEO\n/s/ Donald J. DeMarie, Jr.\nConsultant\n12\n».LOGO\nJanuary 1, 2012\nMr. Donald J. DeMarie\n21001 Van Born Road\nTaylor, Michigan 48180\nDear Mr. DeMarie:\nUnder a Release and Consulting Agreement of even date herewith (the “Agreement”), you and Masco Corporation (“Company” or “Masco”)\nhave agreed to a termination of your employment with Masco on January 1, 2012 and the commencement of a consulting relationship running from\nJanuary 1, 2012 through December 31, 2013 (the “Consulting Period”). In connection with that change in your employment relationship, this letter\nsets forth a modification to letters from Masco for Awards of restricted stock (“Grants”) made prior to the date hereof for Masco’s common stock\npursuant to Masco’s 1991 and 2005 Long Term Stock Incentive Plans (“Stock Plans”). Terms which are capitalized herein and not otherwise defined,\nhave their meaning as defined in the Agreement.\n1) The letters making Options on and after February 16, 2000 in each case included an Appendix with the following language (for Options\nmade after December, 2008 the following language is included in the computerized text captioned “Terms and Conditions”) (the “Clawback”):\nIf your employment with the Company [i.e., Masco] or any of its subsidiaries is terminated for any reason, other than death,\npermanent and total disability, retirement on or after normal retirement date or the sale or other disposition of the business or subsidiary\nemploying you, and other than termination of employment in connection with a Change in Control, and if any installments of the Option\nor any restoration options granted upon any exercise of the Option became exercisable within the two year period prior to the date of\nsuch termination (such installments and restoration options being referred to as the “Subject Options”), by accepting the Option you\nagree that the following provisions will apply:\n21001 VAN BORN ROAD\nTAYLOR, MICHIGAN 48180\n313-274-7400\nMr. Donald J. DeMarie\nJanuary 1, 2012\nPage 2\n(1) Upon the demand of the Company you will pay to the Company in cash within 30 days after the date of such termination the\namount of income realized for income tax purposes from the exercise of any Subject Options, net of all federal, state and other\ntaxes payable on the amount of such income, plus all costs and expenses of the Company in any effort to enforce its rights\nhereunder; and\n(2) Any right you would otherwise have, pursuant to the terms of the Stock Plan and this Agreement, to exercise any Subject\nOptions on or after the date of such termination, shall be extinguished as of the date of such termination.\n2) Such letters granting Options and those letters making Grants on and after July 5, 2000 also included the following language in which you\nagreed not to become associated in any Prohibited Capacity in certain Business Activities (the “Non-Compete”) and (in the second of the two\nparagraphs) requiring you to repay certain amounts to the Company if you breach or challenge such obligations (the “Recapture”). (For brevity,\nparagraphs from the Option Appendices (contained in “Terms and Conditions” in post-2008 Options) follow; paragraphs from the Grant Appendices\n(contained in “Terms and Conditions” in post-2008 Grants) are substantially identical except with appropriately changed reference to Grants rather\nthan Options, and are hereby incorporated by reference as if set forth herein):\nIn addition you agree, in consideration for the grant of the Option and regardless of whether the Option becomes exercisable or is\nexercised, while you are employed or retained as a consultant by the Company or any of its subsidiaries and for a period of one year following\nany termination of your employment and, if applicable, any consulting relationship with the Company or any of its subsidiaries other than a\ntermination in connection with a Change in Control, not to engage in, and not to become associated in a “Prohibited Capacity” (as hereinafter\ndefined) with any other entity engaged in, any “Business Activities” (as hereinafter defined) and not to encourage or assist others in\nencouraging any employee of the Company or any of its subsidiaries to terminate employment or to become engaged in any such Prohibited\nCapacity with an entity engaged in any Business Activities. “Business Activities” shall mean the design, development, manufacture, sale,\nmarketing or servicing of any product or providing of services competitive with the products or services of (x) the Company or any subsidiary\nif you are employed by or consulting with the Company at any time the Option is outstanding, or (y) the subsidiary employing or retaining you\nat any time while the Option is outstanding, to the extent such competitive products or services are distributed or provided either (1) in the\nsame geographic area as are such products or services of the Company or any of its subsidiaries, or (2) to any of the same customers as such\nproducts or services of the Company or any of its subsidiaries are distributed or provided. “Prohibited Capacity” shall mean being associated\nMr. Donald J. DeMarie\nJanuary 1, 2012\nPage 3\nwith an entity as an employee, consultant, investor or another capacity where (1) confidential business information of the Company or any of\nits subsidiaries could be used in fulfilling any of your duties or responsibilities with such other entity, (2) any of your duties or responsibilities\nare similar to or include any of those you had while employed or retained as a consultant by the Company or any of its subsidiaries, or (3) an\ninvestment by you in such other entity represents more than 1% of such other entity’s capital stock, partnership or other ownership interests.\nShould you either breach or challenge in judicial or arbitration proceedings the validity of any of the restrictions contained in the\npreceding paragraph, by accepting the Option you agree, independent of any equitable or legal remedies that the Company may have and\nwithout limiting the Company’s right to any other equitable or legal remedies, to pay to the Company in cash immediately upon the demand of\nthe Company (1) the amount of income realized for income tax purposes from the exercise of any portion of the Option, and any restoration\noptions granted upon any exercise of the Option, net of all federal, state and other taxes payable on the amount of such income (and reduced by\nany amount already paid to the Company under the [paragraph containing the Clawback for Options]) but only to the extent such exercises\noccurred on or after your termination of employment or, if applicable, any consulting relationship with the Company or its subsidiary or within\nthe two year period prior to the date of such termination, plus (2) all costs and expenses of the Company in any effort to enforce its rights\nunder this or the preceding paragraph. The Company shall have the right to set off or withhold any amount owed to you by the Company or\nany of its subsidiaries or affiliates for any amount owed to the Company by you hereunder.\n3) In consideration of the mutual covenants and certain payments and other benefits to be received by you under this letter agreement\n(“Letter”) and under the Agreement, you and Masco hereby agree (i) Masco agrees to waive the Clawbacks, (ii) you agree that the Non-Compete\nparagraph (set forth above as the first paragraph quoted in Section 2) is hereby deleted in its entirety and is replaced by the following paragraphs (the\n“New Non-Compete”):\nIn order to protect the Company and its subsidiaries from your competitive use of the substantial Proprietary Information and goodwill gained\nby you in your employment and consulting relationships with the Company and its subsidiaries, you agree that during the Consulting Period,\nyou shall not, directly or indirectly: (a) engage in or assist in the design, development, evaluation, planning, manufacture, sale, or marketing of\nany products, technologies, or services that compete with or could displace those designed, sold, manufactured, designed, evaluated, marketed,\nplanned or developed by the Company (whether solely or in conjunction with other subsidiaries of the Company or their employees) at any\ntime during your employment with the Company or any subsidiary or consultation with the Company (the ‘Business Activities’), whether such\nengagement is as an officer, director, proprietor, employee, partner, investor (other than as a holder of less than 1% of the outstanding capital\nstock of a publicly traded\nMr. Donald J. DeMarie\nJanuary 1, 2012\nPage 4\ncorporation), consultant, advisor, agent or otherwise in any geographic areas in which the products, technologies, or services of the Company\nor any of its subsidiaries, are at that time distributed or planned to be distributed. Business Activities, include, but are not limited to the design,\ndevelopment, evaluation, manufacture, sale, planning and marketing of plumbing products, installation of insulation, windows, window\nframes, paint, cabinets, tub and shower enclosures, hardware, other building and home products or services, and all other products,\ntechnologies and services offered or sold by the Company or any of its subsidiaries; (b) be engaged (other than on behalf of the Company)\nwhether as an officer, director, proprietor, employee, partner, investor (other than as a holder of less than 1% of the outstanding capital stock of\na publicly traded corporation), consultant, advisor, agent or otherwise, (i) as a supplier to any customer with whom the Company or any of its\nsubsidiaries has done business during your employment or consultation with the Company or any of its subsidiaries or (ii) on behalf of any\ncustomer of, or supplier to, the Company or any of its subsidiaries, with whom the Company or any of its subsidiaries has done business\nduring your employment or consultation with the Company or any of its subsidiaries; (c) assist others in engaging in any of the Business\nActivities in the manner prohibited to you; or (d) induce employees of the Company or any of its subsidiaries to engage in any activities that\nare prohibited to you. In addition, during the Consulting Period and for a two-year period following the Consulting Period, you shall not,\ndirectly or indirectly: (e) knowingly induce employees of the Company or any of its subsidiaries to terminate their employment.\nIt is expressly understood and agreed that although you and the Company consider the restrictions contained in each of clauses (a) through\n(e) above reasonable for the purpose of preserving for the Company and its subsidiaries their good will, trade secrets, proprietary rights and\nongoing business value, if a final judicial determination is made by a court having jurisdiction that the time and territory or any other\nrestriction contained in the foregoing Paragraph is an unenforceable restriction on your activities, the provisions of the foregoing Paragraph\nshall not be rendered void but shall be deemed amended to apply as to such maximum time, territory and activities as such court may judicially\ndetermine or indicate to be reasonable;\n(iii) Masco agrees to the continued lapsing of restrictions on all of the shares under the Grants following your termination of employment; (iv) you\nacknowledge that the consideration conveyed to you by the continued lapsing of restrictions on Grants is good and sufficient consideration for the\nConsulting Services which are required of you under the Agreement, and that, among other Remedies provided upon breach as described in\nSection 7 of the Agreement, your breach of the Agreement or of the Grants or this Letter shall thereupon cause the termination of any further lapsing\nof restrictions otherwise provided in subsection (iii) hereinabove; (v) you hereby specifically (and without limitation) acknowledge and agree to the\napplicability of subparagraphs (a), (b), (c) and (d) of the New Non-Compete during the Consulting Period and to the applicability of subparagraph\n(e) of the New Non-Compete during the Consulting Period and for a period of two years thereafter and, upon the breach of any such provisions of\nthe New Non-Compete during the respective periods, you agree, in addition to any other equitable or legal remedies that Masco may have and\nwithout limiting Masco’s right to any\nMr. Donald J. DeMarie\nJanuary 1, 2012\nPage 5\nother equitable or legal remedies, to pay to Masco in cash immediately upon the demand of Masco the amount of income realized for income tax\npurposes from (A) the exercise of any portion of any option granted under the Stock Plans, net of all federal, state and other taxes payable on the\namount of such income, but only to the extent such exercise occurred on or after your termination of employment and (B) income realized from any\ngrant of shares of Restricted Stock under the Stock Plans, net of all federal, state and other taxes payable on the amount of such income, but only to\nthe extent such income is realized from restrictions lapsing on shares (if any) within the two years after your termination of employment, plus in all\ncases all costs and expenses of Masco incurred in any effort to enforce its rights under this paragraph or under the New Non-Competes (or the Non-\nCompetes, with reference to any time prior to the date hereof). Masco shall have the right to set off or withhold any amount owed to you by Masco\nfor any amount owed by you hereunder.\n4) In light of your position with the Company possessing non-public information, including with respect to our 2011 results of operations, and\nyour continuing relationship with the Company as a Consultant under the Agreement, you agree that you will comply with the provisions of the\nMasco Corporation Policy Against Trading on Inside Information so long as you are a Consultant under the Agreement, including that you will not\nengage in transactions in the Company’s securities until the second day following the Company’s release of its 2011 results of operations, expected\nto occur in the first quarter of 2012.\nIf you are in agreement with the foregoing, please evidence your agreement by signing and returning the enclosed duplicate copy of this Letter\nto the undersigned, whereupon (but no sooner than the time the Agreement shall become finally effective pursuant to its Paragraphs 14 and 15) the\nprovisions of this Letter shall become effective.\nVery truly yours,\n/s/ Timothy Wadhams\nTimothy Wadhams\nPresident and Chief Executive Officer\nAgreed:\n/s/ Donald D. Marie, Jr. /s/ December 6, 2011\nDonald J. DeMarie, Jr. Date	EX-10.J 11 d276684dex10j.htn NON-COMPETE, NON-DISCLOSURE, NON-DISPARAGEMENT, RELEASE AND\nCONSULTING AGREEMENT\nExhibit 10.j\nNON-COMPETE, NON-DISCLOSURE, NON-DISPARAGEMENT, RELEASE AND\nCONSULTING AGREEMENT\nThis Agreement is dated as of January 1, 2012 and is between Donald J. DeMarie, Jr. (the "Consultant") and Masco Corporation (a Delaware\ncorporation), with a business address of 21001 Van Born Road, Taylor, MI 48180 (the "Company").\nWHEREAS, Consultant has been the Executive Vice President and Chief Operating Officer for the Company, and\nWHEREAS, Consultant has established close business relationships with executives and other employees of the Company's suppliers of\nmaterials and services used in the manufacture or sale of the Company's products and services; and\nWHEREAS, Consultant has also established close business relationships with executives and other employees of the Company's customers,\nincluding retailers, builders, wholesalers, distributors, dealers; and\nWHEREAS, Consultant has also established close business relationships with executives and other employees of investors, lenders and\nadvisors of the Company (both actual and prospective); and\nWHEREAS, Consultant has gained detailed knowledge of the Company's operations, processes, finances, products, services and business and\nlegal strategies; and\nWHEREAS, the Company desires that, effective November 4, 2011 the Consultant be removed from his office as Executive Vice President and\nChief Operating Officer of the Company and all other offices and directorships he holds for any of the Company's subsidiaries and affiliates, and that\neffective January 1, 2012 he be terminated from his employment with the Company and thereafter provide the Company, its subsidiaries and\naffiliates, with consulting services through December 31, 2013, and from time to time thereafter, all on the terms and conditions provided herein,\nand\nWHEREAS, the Consultant has been given the opportunity to review this Agreement, and has been advised to consult and has consulted legal\ncounsel to ascertain whether the Consultant has any potential rights or remedies which by the Consultant's execution of this Agreement are waived\nand released, and\nWHEREAS, the Consultant and the Company, without any admission of liability, desire to settle with finality, compromise, dispose of, and\nrelease any claims and demands of the Consultant which have been or could be asserted, whether arising out of the Consultant's employment by or\ntermination from the Company or otherwise;\nNOW THEREFORE, the parties agree as follows:\n1. Termination of Employment and Separation Benefits. Effective January 1, 2012 ("Termination Date"), Consultant's employment\nwith the Company shall be terminated.\n(a)\nIn\nconsideration for the Release given by the Consultant in Paragraph 12 hereof, the Company agrees (i) to pay the Consultant $1,130,010\nin 15 installments of $75,334 each on or about the first of each of the months January, 2012 through March, 2013; to pay Consultant $499,995 in\nnine installments of $55,555 each on or about the first of each of the months April, 2013 through December, 2013; (iii) to pay the Consultant the sum\nof $16,200 as reimbursement for 18 months of COBRA health coverage, in monthly payments of $900 each during the initial 18 months following\nthe Termination Date; and (iv) to provide the Consultant outplacement services through a vendor selected by Consultant and paid by the Company;\nprovided, that the cost of such outplacement services will not exceed $50,000, which services shall be rendered, and payment therefor made, on or\nbefore December 31, 2013.\n(b) the Company agrees to pay the Consultant (i) an amount equal to any FY 2011 bonus he would have received as a continuing employee, at\nor about the same time as such bonuses may be paid to other Company and (ii)an amount equal to the fully vested value of any FY 2011\nperformance restricted stock award he would have received as a continuing employee, at or about the same time such awards may be granted to other\nCompany executives, in each such case on or before December 31, 2012.\n(c) the Consultant recognizes that the consideration to be provided pursuant to Paragraphs 1(a) and 1(b) is in each case stated as a gross\namount before applicable payroll tax withholding, and is in excess of any earned wages or benefits due and owing the Consultant by virtue of his\nemployment with the Company or otherwise.\n(d) Consultant agrees that he shall faithfully and continuously make himself available as an employee to render whatever services may be\nrequired of him by the Company at all times up to and including the Termination Date.\n(e) Consultant shall be paid for his four weeks' 2012 vacation eligibility in cash promptly following the Termination Date.\n(f) The Consultant will be eligible, based on his being employed as of December 31, 2011, for a contribution (if declared generally by the\nCompany's Compensation Committee) to the Company's Future Service Profit Sharing Plan and the Benefits Restoration Plan based on those plans'\nprovisions.\n2. Duties During and After the Consulting Period.\n(a) During the Consulting Period (as hereinafter defined), the Consultant shall perform and discharge well and faithfully consulting services as\nmay be assigned to Consultant from time to time by the Company's President and Chief Executive Officer, or any other officer or executive of\nMasco Corporation with oversight responsibility for the Company, or such other person as the President and Chief Executive Officer might designate\nin writing Such services may include, but not be limited to:\n2\n(i) provision of information concerning the Consultant's past activities or areas of experience or expertise;\n(ii) participation in phone calls or in meetings with representatives or attorneys of the Company or any of its subsidiaries\nor\nwith customers, vendors, or suppliers to the Company or any of its subsidiaries;\n(iii) the preparation of marketing studies or studies on competitive trends for the products or services sold by the Company or\nany of its subsidiaries;\n(iv) prompt assistance to, and full cooperation with, the Company in any Company investigation, or with respect to any\ndispute, or any administrative, regulatory or legal proceedings; and\n(v) active and completely focused participation in litigation as a trial witness, deponent, declarant or source of information,\nwithout requiring service of subpoena or other legal process, and when desired, in the Company's sole discretion, by providing\nimmediate response to requests for assistance.\nAll such services shall be provided promptly and completely and shall involve the full cooperation and best efforts of the Consultant in order\nto meet the goals and direction of the Company, as such may be determined in the Company's sole discretion. Such services are being significantly\ncompensated, and Consultant acknowledges that such efforts may require substantial time on an as-needed basis. In no event will the Consultant's\nduties require the relocation of the Consultant from the Consultant's then-current residence.\n(b) During the pendency of any litigation or other proceeding involving the Company, Consultant shall not communicate with anyone (other\nthan Consultant's and Company's attorneys) with respect to any facts relating to, or the subject matter of, any pending or potential litigation or\nregulatory or administrative proceeding involving the Company or any of its subsidiaries, except as directed by the Company or as required by\ncompulsory process or court order. Consultant acknowledges that the Company's litigation strategies, and the Company's and its subsidiaries'\nbusiness strategies and conduct which may be the subject of litigation, are highly confidential. In the event of such compulsory process or Court\norder, Consultant shall immediate notify the Company thereof and fully cooperate with the Company in any response thereto and related actions.\n(c) It is agreed that the Consultant shall be an independent contractor and shall not be the employee, servant, agent, partner or joint venturer of\nthe Company, or any of its officers, directors or employees. The Consultant has no authority to assume or create any obligation or liability, express or\nimplied, on behalf of the Company, or in the name of the Company or to bind the Company in any manner whatsoever.\n3\n(d) The Consultant shall devote such time, attention and energies to such services for the Company as the Company shall direct. The\nConsultant acknowledges that time is of the essence in the performance of such services, and Consultant's failure to promptly, fully and completely\nprovide such services within the time desired by the Company shall constitute a material breach of this Agreement. The consulting services provided\nhereunder shall not exceed in any year twenty percent (20%) of the time the Consultant spent during 2011 while an employee of the Company.\n(e) Consultant shall make it clear to any prospective future employer, client, joint venturer or other recipient of his future services that\nConsultant has all of the foregoing obligations under this Agreement, and that any future provision of his services is subject to his fulfillment of such\nobligations.\n(f) Following the Consulting Period, Consultant will make himself available to the Company from time to time for additional consulting; in\nthis regard, both the Company and the Consultant will undertake their best efforts to assure that the Consultant will be able to perform such\nconsultancy as reasonably needed by the Company in a manner consistent with any other employment obligations possessed at that time by the\nConsultant as mutually agreed upon under a separate consulting relationship between the parties in the future. The parties expect that such consulting\nshall be limited in duration and may involve matters arising in the course of litigation either at trial or from appellate decisions.\n3. Term of Consulting Relationship. The consulting relationship under Paragraph 2 of this Agreement shall be for a period (the\n"Consulting Period") commencing January 1, 2012, and ending December 31, 2013, unless sooner terminated by written notice of termination from\nthe Company in the event that (i) the Consultant has been convicted of or pled guilty or nolo contendere to a crime involving moral turpitude or a\ncrime providing for a term of imprisonment; or (ii) current alcohol or other substance abuse on the part of the Consultant (whether or not constituting\na crime, or the Consultant's willful misconduct); or (iii) the Consultant's failure to follow the instructions of the President and Chief Executive\nOfficer of the Company, or other officers or executives of the Company, or the Consultant's neglect of duties, but in each such case only following\nwritten notice thereof; or (iv) the Consultant has breached any other obligation under this Agreement, the Stock Plans, the Awards, the Letter or the\nPlan (as hereinafter defined). If the Consulting Period is terminated for any of the reasons set forth in the preceding sentence, the rights of the\nConsultant under Paragraphs 1(a) and 1(b) and to the fees set forth in Paragraph 4 hereof shall cease on the date of such termination (and are subject\nto\nrecovery by the Company as provided in paragraph 3(vi) of the Letter), and the Company shall have no further obligation to the Consultant under\nany of the provisions of this Agreement or the other referenced agreements. Termination shall not, however, affect the provisions of Paragraphs 5\nthrough 13 or 17 through 20, each of which shall survive any termination in accordance with their terms. Consultant's termination of this Agreement\nwithout cause shall\n4\nconstitute a material breach of this Agreement. If the Consulting Period is terminated by reason of the Consultant's death, to the extent then not paid\nto the Consultant, the payments under Paragraphs 1(a) and 1(b) and the fees set forth in Paragraph 4(a)(i) hereof shall be made to the Consultant's\nestate. Survivor rights with respect to the fees described in Paragraph 4(a)(ii) shall be as determined under applicable beneficiary and other\nprovisions embodied in the Stock Plans and Awards as modified by the Letter.\n4. Consulting Period Compensation.\n(a) In full satisfaction for any and all services rendered by the Consultant hereunder, (i) during the period beginning January 1, 2012 and\nending December 31, 2013 the Consultant will be paid, on a monthly basis, a consulting fee in the gross amount of $2084.00 in consecutive monthly\ninstallments on or about the 15th of each month with respect to the immediately preceding month and (ii) the Consultant's rights and obligations\nunder provisions of the Masco Corporation 1991 and 2005 Long Term Stock Incentive Plans ("Stock Plans") and the Awards of restricted stock\nmade in letters previously issued to the Consultant pursuant to the Stock Plans (collectively, "Awards") shall continue vesting following the\nTermination Date only in accordance with the provisions of the Stock Plans and Awards and that certain letter agreement between the Consultant and\nthe Company of even date herewith ("Letter"). Following the Consulting Period, for any consulting services rendered to the Company from time to\ntime, the Consultant shall be paid at a rate as agreed by the parties which shall be commensurate with the Consultant's cash compensation as in effect\nduring 2011 as mutually agreed upon under a separate consulting relationship between the parties in the future.\n(b) The payments and extended stock vesting set forth in Paragraph 4(a)(i) and (ii) are given in consideration of both the Consultant's services\nand the Consultant's immediate on-call availability to perform such services when requested. In addition to such fees, the Company agrees to\nreimburse the Consultant for travel and reasonable living expenses away from the Consultant's residence directly incurred by the Consultant at the\nCompany's request in performing such services for the Company or as approved by the Company in advance. The Consultant agrees to keep\naccurate expense records in the form requested by the Company and to provide the Company with such records upon request.\n(c) Other than benefits accrued under the Company's benefit plans through the Termination Date, and pursuant to that certain Supplemental\nExecutive Retirement Plan as described in the letter agreement dated July 1, 2006 as amended (the "Plan"), the Consultant shall not receive any\nother compensation from the Company nor shall he participate in or receive benefits under any of the Company's employee fringe benefit programs\nor receive any other fringe benefits from the Company on account of services hereunder (including without limitation health, disability, life\ninsurance, retirement, pension and profit sharing benefits).\n5. Disclosure of Information. The Consultant acknowledges that the Company's and its subsidiaries' trade secrets, private or secret\nprocesses as they exist from time to time, and information concerning products, developments, manufacturing techniques, new\n5\nproduct plans, equipment, inventions, discoveries, patent applications, ideas, designs, engineering drawings, sketches, renderings, other drawings,\nmanufacturing and test data, computer programs, progress reports, materials, costs, specifications, processes, methods, research, procurement and\nsales activities and procedures, Company business strategies, litigation or legal strategies, promotion or pricing techniques or credit or financial data\nconcerning customers of the Company or its subsidiaries as well as information relating to the management, operation or planning of the Company\nor its subsidiaries which, in each such case, has not been made public (or, if made public, such disclosure must not have been made by the\nConsultant) (the "Proprietary Information") are valuable, special and unique assets of the Company and its subsidiaries. In light of the highly\ncompetitive nature of the industries in which the Company and its subsidiaries conduct their businesses, the Consultant agrees that all Proprietary\nInformation heretofore or in the future obtained by the Consultant as a result of the Consultant's relationship with the Company and its subsidiaries\nshall be considered confidential. In recognition of this fact, the Consultant agrees that he will, during and after the Consulting Period, keep the\nProprietary Information strictly confidential, will not disclose any of such Proprietary Information to any person or entity for any reason or purpose\nwhatsoever (except as directed by the Company), and he will not make use of any Proprietary Information for his own purposes or for the benefit of\nany other person or entity (except the Company and its subsidiaries) under any circumstances.\n6. Non-Competition. In order to protect the Company and its subsidiaries from the Consultant's competitive use of the substantial\nProprietary Information and goodwill gained by the Consultant in his employment and consulting relationships with the Company and its\nsubsidiaries, the Consultant agrees that during the Consulting Period Consultant shall not, directly or indirectly:\n(a)\nEngage in or assist in the design, development, evaluation, planning, manufacture, sale, or marketing of any products,\ntechnologies, or services that compete with or could displace those designed, sold, manufactured, designed, evaluated, marketed,\nplanned or developed by the Company (whether solely or in conjunction with other subsidiaries of the Company or their\nemployees) at any time during the Consultant's employment with the Company or any subsidiary or consultation with the\nCompany (the 'Business Activities'), whether such engagement is as an officer, director, proprietor, employee, partner, investor\n(other than as a holder of less than 1% of the outstanding capital stock of a publicly traded corporation), consultant, advisor, agent\nor otherwise in any geographic areas in which the products, technologies, or services of the Company or any of its subsidiaries,\nare at that time distributed or planned to be distributed. Business Activities, include, but are not limited to, the design,\ndevelopment, evaluation, manufacture, sale, planning and marketing of plumbing products, installation of insulation, windows,\nwindow frames, paint, cabinets, tub and shower enclosures, hardware, other building and home products or services, and all other\nproducts, technologies and services offered or sold by the Company or any of its subsidiaries;\n6\n(b)\nBe engaged (other than on behalf of the Company) whether as an officer, director, proprietor, employee, partner, investor (other\nthan as a holder of less than 1% of the outstanding capital stock of a publicly traded corporation), consultant, advisor, agent or\notherwise, (i) as a supplier to any customer with whom the Company or any of its subsidiaries has done business during\nConsultant's employment or consultation with the Company or any of its subsidiaries; or (ii) on behalf of any customer of, or\nsupplier to, the Company or any of its subsidiaries, with whom the Company or any of its subsidiaries has done business during\nConsultant's employment or consultation with the Company or any of its subsidiaries;\n(c)\nAssist others in engaging in any of the Business Activities in the manner prohibited to the Consultant; or\n(d)\nInduce employees of the Company or any of its subsidiaries to engage in any activities that are prohibited to the Consultant.\nIn addition, during the Consulting Period and for a two-year period following the Consulting Period, the Consultant shall not, directly or\nindirectly:\n(e)\nKnowingly induce employees of the Company or any of its subsidiaries to terminate their employment.\nIt is expressly understood and agreed that although the Consultant and the Company consider the restrictions contained in each of clauses (a) through\n(e) above reasonable for the purpose of preserving for the Company and its subsidiaries their good will, trade secrets, proprietary rights and ongoing\nbusiness value, if a final judicial determination is made by a court having jurisdiction that the time and territory or any other restriction contained in\nthis Paragraph is an unenforceable restriction on the activities of the Consultant, the provisions of this Paragraph shall not be rendered void but shall\nbe deemed amended to apply as to such maximum time, territory and activities as such court may judicially determine or indicate to be reasonable.\n7. Remedies.\n(a) The Consultant acknowledges and agrees that the Company's remedy at law for a breach or threatened breach of any of the provisions\nof\nParagraphs 5 or 6 of this Agreement would be inadequate and, in recognition of this fact, in the event of a breach by the Consultant of any of the\nprovisions of Paragraphs 5 or 6 of this Agreement, the Consultant agrees that, in addition to the Company's other remedies at law, at the Company's\noption, all rights of the Consultant under this Agreement, the Stock Plans, the Awards, the Letter and the Plan may be terminated, and the Company\nshall be entitled without posting any bond to obtain, and the Consultant agrees not to oppose (except to the extent that Consultant maintains that he\ndid not, in fact, engage in any activity in breach of this Agreement) a request for, equitable relief in the form of specific performance, temporary\nrestraining order, temporary or permanent injunction or any other equitable remedy which may then be available, relating to the conduct prohibited\n7\nunder either paragraphs 5 or 6 hereof. The Consultant acknowledges that the granting of a temporary injunction, temporary restraining order or\npermanent injunction merely prohibiting the use of Proprietary Information would not be an adequate remedy upon breach or threatened breach\nhereof. Nothing herein contained shall be construed as prohibiting the Company from pursuing, in addition, any other remedies available to it for\nsuch (or any other) breach or threatened breach.\n(b) In addition to the remedies set forth herein or available to the Company, if Consultant, in Company's good faith judgment, reasonably\nexercised, at any time during the Consulting Period (and, with respect to breaches of Paragraph 6(e) at any time during the Consulting Period and\ntwo-year period following the Consulting Period), breaches any obligation under this Agreement, the Stock Plans, the Awards, the Letter or the Plan,\nthe Company may immediately terminate any remaining payments and the provision of any other benefits which might otherwise be required this\nAgreement, the Stock Plans, the Awards, the Letter or the Plan, or otherwise due Consultant. Upon any breach, the Company may also recover from\nthe Consultant any payments made under Paragraphs 1(a) and 1(b) hereof (except for the payments described in 1(a)(iii) and 1(a)(iv)) together with\nany proceeds from exercise of any Options or sale of Restricted Stock for which restrictions have lapsed at any time within two years following the\nTermination Date, in each case (cash and stock) net of any state and federal income taxes paid by Consultant. The Company may also recover all\ncost and expenses incurred in any efforts to enforce its rights under this Agreement. The Company shall have the right to set off any amount owed\nto\nConsultant against any amount owed by Consultant hereunder.\n8. Notices. Any notice required or permitted to be given under this Agreement shall be deemed properly given if in writing and delivered\nby hand and receipt is acknowledged by the party to whom said notice shall be directed, or if mailed by certified or registered mail, postage prepaid\nwith return receipt requested, or sent by express courier service, charges prepaid by shipper, to the addresses of each party stated above and, in the\ncase of notices to the Company, to the attention of its General Counsel at Masco Corporation, 21001 Van Born Road, Taylor, Michigan 48180 (or to\nsuch other address as a party is directed pursuant to written notice from the other party).\n9. Assignment. This Agreement shall not be assignable by either party except by the Company to any subsidiary or affiliate\nof\nthe\nCompany or to any successor in interest to the Company's business, and shall be binding upon the Company in the case of any change in control or\nalternate change in control as defined in the Plan.\n10. Entire Agreement. This instrument and the Stock Plans, the Awards, the Letter and the Plan contain the entire agreements of\nthe\nparties relating to the subject of consulting and termination of Consultant's employment, supersede and replace in their entirety any existing\nemployment agreement or consulting agreement of the Consultant and may not be waived, changed, modified, extended or discharged orally but\nonly by agreement in writing signed by the party against whom enforcement of any such waiver, change, modification, extension or discharge is\nsought. The waiver by the Company of a breach of any provision of this Agreement by the Consultant shall not operate or be construed as a waiver\nof a breach of any other provision or of any subsequent breach by the Consultant.\n8\n11. No Disparagement. Each of the parties agrees not to criticize, disparage or otherwise demean in any way the other or Company's\naffiliates or their respective products, services, technologies, officers, directors or employees.\n12. RELEASE.\n(a) In consideration of the payments to be made and the agreements and consideration provided by the Company hereunder and the\ncovenants contained in the Letter, Consultant, on Consultant's own behalf and on behalf of Consultant's heirs, executors, agents, successors\nand assigns, releases and forever discharges the Company, its subsidiaries and affiliates and their respective officers, agents, current and\nformer employees, successors, predecessors and assigns and any other person, firm, corporation or legal entity in any way related to the\nCompany or its subsidiaries and affiliates (the "Released Parties"), of and from all claims, demands, actions, causes of action, statutory\nrights, duties, debts, sums of money, suits, reckonings, contracts, agreements, controversies, promises, damages, obligations, responsibilities,\nliabilities and accounts of whatsoever kind, nature or description, direct or indirect, in law or in equity, in contract or in tort or otherwise,\nwhich Consultant ever had or which Consultant now has or hereafter can, shall or may have, against any of the Released Parties, for or by\nreason of any matter, cause, or thing whatsoever up to the present time, whether known or unknown, suspected or unsuspected at the\npresent time, or which may be based upon pre-existing acts, claims or events occurring at any time up to the date hereof which may result in\nfuture damages, including without limitation all direct or indirect claims either for direct or consequential damages of any kind whatsoever\nand rights or claims arising under Title VII, any state civil-rights legislation, claims of handicap discrimination, claims relating to the\ntermination of employment as referred to herein, and claims of age discrimination under the Age Discrimination in Employment Act of\n1967, as amended (ADEA), against any of the Released Parties, other than (a) claims arising under the express provisions of this Agreement,\n(b) the right to receive benefits accrued through the end of the employment period under the Company's benefit plans and (c) claims arising\nunder any applicable worker's compensation statute. It is the intention of the parties that this general release by the Consultant will be\nconstrued as broadly as possible.\n(b) Consultant has: (i) the sole right, title, and interest to the claims released under this Agreement, (ii) neither assigned or transferred, nor\npurported to assign or transfer, to any person or entity, any claim released by this Agreement, and (iii) neither assigned or transferred, nor purported\nto assign or transfer, to any person or entity, the right to the monies, in whole or in part, being paid pursuant to this Agreement.\n9\n13. Non-Disclosure. Other than to the extent required to perform consulting services hereunder, or as required by applicable securities\nlaws, until such time as this Agreement becomes publicly disclosed by the Company in its required securities filings or otherwise, Consultant shall\nnot disclose the fact of this Agreement or any of its terms to any third parties other than to Consultant's ex-spouse, tax and financial advisors, banks,\ncreditors, attorneys, significant other and children, each of whom, in turn shall be bound by this paragraph not to further disclose this Agreement.\nConsultant agrees that any violation of this confidentiality provision will result in substantial and irreparable injury to Company. In the event of such\na\nviolation, in addition to the Company's right to terminate any further payment or benefits as permitted under Paragraph 7, Consultant will also be\nliable to Company for such economic damages and equitable relief as a Court may deem appropriate.\n14. Execution and Revocation. (a) This Agreement was first communicated to Consultant on November 5, 2011. Consultant is not\nrequired to, but may, accept this Agreement by signing and dating this Agreement on or before December 6, 2011 which is in excess of twenty-one\n(21) days from the date this Agreement was first communicated to Consultant.\n(b) Consultant understands that this Agreement may be revoked by him for a period of seven (7) calendar days following his execution of this\nAgreement. The Agreement is not effective until this revocation period has expired. Consultant understands that any revocation to be effective must\nbe in writing and either postmarked within seven (7) days of the execution of this Agreement and addressed to Chuck Greenwood, Vice President-\nHuman Resources, Masco Corporation, 21001 Van Born Road, Taylor, Michigan 48180 or hand delivered within seven (7) days to Chuck\nGreenwood at the address listed above. If revocation is by mail, certified mail, return receipt requested is required to show proof of mailing.\n15. No Payment. No payments or benefits under this Agreement shall be made to Consultant until the seven (7) day revocation period\nhas expired. If Consultant does not revoke this Agreement within the seven (7) day revocation period, then this Agreement shall become binding on\nthe Company and Consultant as otherwise provided herein, and the payments and benefits provided in Paragraph 1 will commence.\n16.\nSeverability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid\nunder applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or\nrule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement\nwill be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained in this\nAgreement, while giving maximum effort to the intent of the parties as reflected in this Agreement.\n10\n17. Arbitration. The parties hereto agree that arbitration will be the sole and exclusive remedy for any claims which may arise between\nthe parties (other than requests by the Company for immediate or preliminary injunctive relief) in any way relating to this Agreement or for the\nbreach thereof. All such claims shall be submitted to arbitration in accordance with the applicable arbitration rules of the American Arbitration\nAssociation ("AAA"), except as those rules conflict with applicable Delaware law. The award issued by the arbitrator shall be final and binding on\nthe parties, and judgment on the award may be entered in any court of competent jurisdiction. The fees and costs of the arbitrator and the arbitration\nand administrative fees shall be borne equally by the parties. Each party understands and agrees that this arbitration provision constitutes a waiver of\ntheir respective rights to adjudicate all claims in court and before a jury, and the parties are instead opting to arbitrate any such claims. All arbitration\nproceedings will be conducted in the Detroit metropolitan area. This arbitration provision explicitly replaces and supersedes any prior agreements\nbetween the parties concerning mediation or any other alternate dispute resolution.\n18. Headings and Construction. The headings of the Paragraphs are for convenience only and shall not control or affect the meaning or\nconstruction or limit the scope or intent of any of the provisions of this Agreement. The terms "and" and "or" herein shall each be interpreted to\ninclude the other, i.e. "and/or."\n19. Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement. A facsimile signature, whether by fax or other electronic form, shall be deemed an original\nand shall bind the signing Party\n20. Governing Law. All questions concerning the construction, validity and interpretation of this Agreement will be governed by and\nconstrued in accordance with the domestic laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or\nrule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State\nof Delaware. It is the intent of the parties that the provisions of this Agreement shall be interpreted to be consistent with provisions of Section 409A\nof the Internal Revenue Code.\n11\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.\nMASCO CORPORATION\nBy: /s/ Timothy Wadhams\nIts: President and CEO\n/s/ Donald J. DeMarie, Jr.\nConsultant\nDated: December 6, 2011.\n12\nLOGO\nJanuary 1, 2012\nMr. Donald J. DeMarie\n21001 Van Born Road\nTaylor, Michigan 48180\nDear Mr. DeMarie:\nUnder a Release and Consulting Agreement of even date herewith (the "Agreement"), you and Masco Corporation ("Company" or "Masco")\nhave agreed to a termination of your employment with Masco on January 1, 2012 and the commencement of a consulting relationship running from\nJanuary 1, 2012 through December 31, 2013 (the "Consulting Period"). In connection with that change in your employment relationship, this letter\nsets forth a modification to letters from Masco for Awards of restricted stock ("Grants") made prior to the date hereof for Masco's common stock\npursuant to Masco's 1991 and 2005 Long Term Stock Incentive Plans ("Stock Plans"). Terms which are capitalized herein and not otherwise defined,\nhave their meaning as defined in the Agreement.\n1) The letters making Options on and after February 16, 2000 in each case included an Appendix with the following language (for Options\nmade after December, 2008 the following language is included in the computerized text captioned "Terms and Conditions") (the "Clawback"):\nIf your employment with the Company [i.e., Masco] or any of its subsidiaries is terminated for any reason, other than death,\npermanent and total disability, retirement on or after normal retirement date or the sale or other disposition of the business or subsidiary\nemploying you, and other than termination of employment in connection with a Change in Control, and if any installments of the Option\nor any restoration options granted upon any exercise of the Option became exercisable within the two year period prior to the date of\nsuch termination (such installments and restoration options being referred to as the "Subject Options"), by accepting the Option you\nagree that the following provisions will apply:\n21001 VAN BORN ROAD\nTAYLOR, MICHIGAN 48180\n313-274-7400\nMr. Donald J. DeMarie\nJanuary 1, 2012\nPage 2\n(1) Upon the demand of the Company you will pay to the Company in cash within 30 days after the date of such termination the\namount of income realized for income tax purposes from the exercise of any Subject Options, net of all federal, state and other\ntaxes payable on the amount of such income, plus all costs and expenses of the Company in any effort to enforce its rights\nhereunder; and\n(2) Any right you would otherwise have, pursuant to the terms of the Stock Plan and this Agreement, to exercise any Subject\nOptions on or after the date of such termination, shall be extinguished as of the date of such termination.\n2) Such letters granting Options and those letters making Grants on and after July 5, 2000 also included the following language in which you\nagreed not to become associated in any Prohibited Capacity in certain Business Activities (the "Non-Compete") and (in the second of the two\nparagraphs) requiring you to repay certain amounts to the Company if you breach or challenge such obligations (the "Recapture"). (For brevity,\nparagraphs from the Option Appendices (contained in "Terms and Conditions" in post-2008 Options) follow; paragraphs from the Grant Appendices\n(contained in "Terms and Conditions" in post-2008 Grants) are substantially identical except with appropriately changed reference to Grants rather\nthan Options, and are hereby incorporated by reference as if set forth herein):\nIn addition you agree, in consideration for the grant of the Option and regardless of whether the Option becomes exercisable or is\nexercised, while you are employed or retained as a consultant by the Company or any of its subsidiaries and for a period of one year following\nany termination of your employment and, if applicable, any consulting relationship with the Company or any of its subsidiaries other than a\ntermination in connection with a Change in Control, not to engage in, and not to become associated in a "Prohibited Capacity" (as hereinafter\ndefined) with any other entity engaged in, any "Business Activities" (as hereinafter defined) and not to encourage or assist others in\nencouraging any employee of the Company or any of its subsidiaries to terminate employment or to become engaged in any such Prohibited\nCapacity with an entity engaged in any Business Activities. "Business Activities" shall mean the design, development, manufacture, sale,\nmarketing or servicing of any product or providing of services competitive with the products or services of (x) the Company or any subsidiary\nif\nyou are employed by or consulting with the Company at any time the Option is outstanding, or (y) the subsidiary employing or retaining you\nat\nany time while the Option is outstanding, to the extent such competitive products or services are distributed or provided either (1) in the\nsame\ngeographic area as are such products or services of the Company or any of its subsidiaries, or (2) to any of the same customers as such\nproducts or services of the Company or any of its subsidiaries are distributed or provided. "Prohibited Capacity" shall mean being associated\nMr. Donald J. DeMarie\nJanuary 1, 2012\nPage 3\nwith an entity as an employee, consultant, investor or another capacity where (1) confidential business information of the Company or any of\nits\nsubsidiaries could be used in fulfilling any of your duties or responsibilities with such other entity (2) any of your duties or responsibilities\nare similar to or include any of those you had while employed or retained as a consultant by the Company or any of its subsidiaries, or (3) an\ninvestment by you in such other entity represents more than 1% of such other entity's capital stock, partnership or other ownership interests.\nShould you either breach or challenge in judicial or arbitration proceedings the validity of any of the restrictions contained in the\npreceding paragraph, by accepting the Option you agree, independent of any equitable or legal remedies that the Company may have and\nwithout limiting the Company's right to any other equitable or legal remedies, to pay to the Company in cash immediately upon the demand\nof\nthe Company (1) the amount of income realized for income tax purposes from the exercise of any portion of the Option, and any restoration\noptions granted upon any exercise of the Option, net of all federal, state and other taxes payable on the amount of such income (and reduced by\nany amount already paid to the Company under the [paragraph containing the Clawback for Options]) but only to the extent such exercises\noccurred on or after your termination of employment or, if applicable, any consulting relationship with the Company or its subsidiary or within\nthe two year period prior to the date of such termination, plus (2) all costs and expenses of the Company in any effort to enforce its rights\nunder this or the preceding paragraph. The Company shall have the right to set off or withhold any amount owed to you by the Company or\nany of its subsidiaries or affiliates for any amount owed to the Company by you hereunder.\n3) In consideration of the mutual covenants and certain payments and other benefits to be received by you under this letter agreement\n("Letter") and under the Agreement, you and Masco hereby agree (i) Masco agrees to waive the Clawbacks, (ii) you agree that the Non-Compete\nparagraph (set forth above as the first paragraph quoted in Section 2) is hereby deleted in its entirety and is replaced by the following paragraphs (the\n"New Non-Compete"):\nIn order to protect the Company and its subsidiaries from your competitive use of the substantial Proprietary Information and goodwill gained\nby you in your employment and consulting relationships with the Company and its subsidiaries, you agree that during the Consulting Period,\nyou shall not, directly or indirectly: (a) engage in or assist in the design, development, evaluation, planning, manufacture, sale, or marketing of\nany products, technologies, or services that compete with or could displace those designed, sold, manufactured, designed, evaluated, marketed,\nplanned or developed by the Company (whether solely or in conjunction with other subsidiaries of the Company or their employees) at any\ntime during your employment with the Company or any subsidiary or consultation with the Company (the 'Business Activities'), whether such\nengagement is as an officer, director, proprietor, employee, partner, investor (other than as a holder of less than 1% of the outstanding capital\nstock of a publicly traded\nMr. Donald J. DeMarie\nJanuary 1, 2012\nPage 4\ncorporation), consultant, advisor, agent or otherwise in any geographic areas in which the products, technologies, or services of the Company\nor any of its subsidiaries, are at that time distributed or planned to be distributed. Business Activities, include, but are not limited to the design,\ndevelopment, evaluation, manufacture, sale, planning and marketing of plumbing products, installation of insulation, windows, window\nframes, paint, cabinets, tub and shower enclosures, hardware, other building and home products or services, and all other products,\ntechnologies and services offered or sold by the Company or any of its subsidiaries; (b) be engaged (other than on behalf of the Company)\nwhether as an officer, director, proprietor, employee, partner, investor (other than as a holder of less than 1% of the outstanding capital stock of\na\npublicly traded corporation), consultant, advisor, agent or otherwise, (i) as a supplier to any customer with whom the Company or any of its\nsubsidiaries has done business during your employment or consultation with the Company or any of its subsidiaries or (ii) on behalf of any\ncustomer of, or supplier to, the Company or any of its subsidiaries, with whom the Company or any of its subsidiaries has done business\nduring your employment or consultation with the Company or any of its subsidiaries; (c) assist others in engaging in any of the Business\nActivities in the manner prohibited to you; or (d) induce employees of the Company or any of its subsidiaries to engage in any activities that\nare prohibited to you. In addition, during the Consulting Period and for a two-year period following the Consulting Period, you shall not,\ndirectly or indirectly: (e) knowingly induce employees of the Company or any of its subsidiaries to terminate their employment.\nIt is expressly understood and agreed that although you and the Company consider the restrictions contained in each of clauses (a) through\n(e) above reasonable for the purpose of preserving for the Company and its subsidiaries their good will, trade secrets, proprietary rights and\nongoing business value, if a final judicial determination is made by a court having jurisdiction that the time and territory or any other\nrestriction contained in the foregoing Paragraph is an unenforceable restriction on your activities, the provisions of the foregoing Paragraph\nshall not be rendered void but shall be deemed amended to apply as to such maximum time, territory and activities as such court may judicially\ndetermine or indicate to be reasonable;\n(iii) Masco agrees to the continued lapsing of restrictions on all of the shares under the Grants following your termination of employment; (iv) you\nacknowledge that the consideration conveyed to you by the continued lapsing of restrictions on Grants is good and sufficient consideration for the\nConsulting Services which are required of you under the Agreement, and that, among other Remedies provided upon breach as described in\nSection 7 of the Agreement, your breach of the Agreement or of the Grants or this Letter shall thereupon cause the termination of any further lapsing\nof\nrestrictions otherwise provided in subsection (iii) hereinabove; (v) you hereby specifically (and without limitation) acknowledge and agree to the\napplicability of subparagraphs (a), (b), (c) and (d) of the New Non-Compete during the Consulting Period and to the applicability of subparagraph\n(e) of the New Non-Compete during the Consulting Period and for a period of two years thereafter and, upon the breach of any such provisions\nof\nthe New Non-Compete during the respective periods, you agree, in addition to any other equitable or legal remedies that Masco may have and\nwithout limiting Masco's right to any\nMr. Donald J. DeMarie\nJanuary 1, 2012\nPage 5\nother equitable or legal remedies, to pay to Masco in cash immediately upon the demand of Masco the amount of income realized for income\ntax\npurposes from (A) the exercise of any portion of any option granted under the Stock Plans, net of all federal, state and other taxes payable on the\namount of such income, but only to the extent such exercise occurred on or after your termination of employment and (B) income realized from any\ngrant of shares of Restricted Stock under the Stock Plans, net of all federal, state and other taxes payable on the amount of such income, but only\nto\nthe extent such income is realized from restrictions lapsing on shares (if any) within the two years after your termination of employment, plus in all\ncases all costs and expenses of Masco incurred in any effort to enforce its rights under this paragraph or under the New Non-Competes (or the Non-\nCompetes, with reference to any time prior to the date hereof). Masco shall have the right to set off or withhold any amount owed to you by Masco\nfor any amount owed by you hereunder.\n4)\nIn light of your position with the Company possessing non-public information, including with respect to our 2011 results of operations, and\nyour continuing relationship with the Company as a Consultant under the Agreement, you agree that you will comply with the provisions of the\nMasco Corporation Policy Against Trading on Inside Information so long as you are a Consultant under the Agreement, including that you will not\nengage in transactions in the Company's securities until the second day following the Company's release of its 2011 results of operations, expected\nto occur in the first quarter of 2012.\nIf you are in agreement with the foregoing, please evidence your agreement by signing and returning the enclosed duplicate copy of this Letter\nto the undersigned, whereupon (but no sooner than the time the Agreement shall become finally effective pursuant to its Paragraphs 14 and 15) the\nprovisions of this Letter shall become effective.\nVery truly yours,\n/s/ Timothy Wadhams\nTimothy Wadhams\nPresident and Chief Executive Officer\nAgreed:\n/s/ Donald D. Marie, Jr.\n/s/ December 6, 2011\nDonald J. DeMarie, Jr.\nDate	EX-10.J 11 d276684dex10j.htm NON-COMPETE, NON-DISCLOSURE, NON-DISPARAGEMENT, RELEASE AND\nCONSULTING AGREEMENT\nExhibit 10.j\nNON-COMPETE, NON-DISCLOSURE, NON-DISPARAGEMENT, RELEASE AND\nCONSULTING AGREEMENT\nThis Agreement is dated as of January 1, 2012 and is between Donald J. DeMarie, Jr. (the “Consultant”) and Masco Corporation (a Delaware\ncorporation), with a business address of 21001 Van Born Road, Taylor, MI 48180 (the “Company”).\nWHEREAS, Consultant has been the Executive Vice President and Chief Operating Officer for the Company, and\nWHEREAS, Consultant has established close business relationships with executives and other employees of the Company’s suppliers of\nmaterials and services used in the manufacture or sale of the Company’s products and services; and\nWHEREAS, Consultant has also established close business relationships with executives and other employees of the Company’s customers,\nincluding retailers, builders, wholesalers, distributors, dealers; and\nWHEREAS, Consultant has also established close business relationships with executives and other employees of investors, lenders and\nadvisors of the Company (both actual and prospective); and\nWHEREAS, Consultant has gained detailed knowledge of the Company’s operations, processes, finances, products, services and business and\nlegal strategies; and\nWHEREAS, the Company desires that, effective November 4, 2011 the Consultant be removed from his office as Executive Vice President and\nChief Operating Officer of the Company and all other offices and directorships he holds for any of the Company’s subsidiaries and affiliates, and that\neffective January 1, 2012 he be terminated from his employment with the Company and thereafter provide the Company, its subsidiaries and\naffiliates, with consulting services through December 31, 2013, and from time to time thereafter, all on the terms and conditions provided herein, and\nWHEREAS, the Consultant has been given the opportunity to review this Agreement, and has been advised to consult and has consulted legal\ncounsel to ascertain whether the Consultant has any potential rights or remedies which by the Consultant’s execution of this Agreement are waived\nand released, and\nWHEREAS, the Consultant and the Company, without any admission of liability, desire to settle with finality, compromise, dispose of, and\nrelease any claims and demands of the Consultant which have been or could be asserted, whether arising out of the Consultant’s employment by or\ntermination from the Company or otherwise;\nNOW THEREFORE, the parties agree as follows:\n1. Termination of Employment and Separation Benefits. Effective January 1, 2012 (“Termination Date”), Consultant’s employment\nwith the Company shall be terminated.\n(a) In consideration for the Release given by the Consultant in Paragraph 12 hereof, the Company agrees (i) to pay the Consultant $1,130,010\nin 15 installments of $75,334 each on or about the first of each of the months January, 2012 through March, 2013; to pay Consultant $499,995 in\nnine installments of $55,555 each on or about the first of each of the months April, 2013 through December, 2013; (iii) to pay the Consultant the sum\nof $16,200 as reimbursement for 18 months of COBRA health coverage, in monthly payments of $900 each during the initial 18 months following\nthe Termination Date; and (iv) to provide the Consultant outplacement services through a vendor selected by Consultant and paid by the Company;\nprovided, that the cost of such outplacement services will not exceed $50,000, which services shall be rendered, and payment therefor made, on or\nbefore December 31, 2013.\n(b) the Company agrees to pay the Consultant (i) an amount equal to any FY 2011 bonus he would have received as a continuing employee, at\nor about the same time as such bonuses may be paid to other Company and (ii)an amount equal to the fully vested value of any FY 2011\nperformance restricted stock award he would have received as a continuing employee, at or about the same time such awards may be granted to other\nCompany executives, in each such case on or before December 31, 2012.\n(c) the Consultant recognizes that the consideration to be provided pursuant to Paragraphs 1(a) and 1(b) is in each case stated as a gross\namount before applicable payroll tax withholding, and is in excess of any earned wages or benefits due and owing the Consultant by virtue of his\nemployment with the Company or otherwise.\n(d) Consultant agrees that he shall faithfully and continuously make himself available as an employee to render whatever services may be\nrequired of him by the Company at all times up to and including the Termination Date.\n(e) Consultant shall be paid for his four weeks’ 2012 vacation eligibility in cash promptly following the Termination Date.\n(f) The Consultant will be eligible, based on his being employed as of December 31, 2011, for a contribution (if declared generally by the\nCompany’s Compensation Committee) to the Company’s Future Service Profit Sharing Plan and the Benefits Restoration Plan based on those plans’\nprovisions.\n2. Duties During and After the Consulting Period.\n(a) During the Consulting Period (as hereinafter defined), the Consultant shall perform and discharge well and faithfully consulting services as\nmay be assigned to Consultant from time to time by the Company’s President and Chief Executive Officer, or any other officer or executive of\nMasco Corporation with oversight responsibility for the Company, or such other person as the President and Chief Executive Officer might designate\nin writing. Such services may include, but not be limited to:\n2\n(i) provision of information concerning the Consultant’s past activities or areas of experience or expertise;\n(ii) participation in phone calls or in meetings with representatives or attorneys of the Company or any of its subsidiaries or\nwith customers, vendors, or suppliers to the Company or any of its subsidiaries;\n(iii) the preparation of marketing studies or studies on competitive trends for the products or services sold by the Company or\nany of its subsidiaries;\n(iv) prompt assistance to, and full cooperation with, the Company in any Company investigation, or with respect to any\ndispute, or any administrative, regulatory or legal proceedings; and\n(v) active and completely focused participation in litigation as a trial witness, deponent, declarant or source of information,\nwithout requiring service of subpoena or other legal process, and when desired, in the Company’s sole discretion, by providing\nimmediate response to requests for assistance.\nAll such services shall be provided promptly and completely and shall involve the full cooperation and best efforts of the Consultant in order\nto meet the goals and direction of the Company, as such may be determined in the Company’s sole discretion. Such services are being significantly\ncompensated, and Consultant acknowledges that such efforts may require substantial time on an as-needed basis. In no event will the Consultant’s\nduties require the relocation of the Consultant from the Consultant’s then-current residence.\n(b) During the pendency of any litigation or other proceeding involving the Company, Consultant shall not communicate with anyone (other\nthan Consultant’s and Company’s attorneys) with respect to any facts relating to, or the subject matter of, any pending or potential litigation or\nregulatory or administrative proceeding involving the Company or any of its subsidiaries, except as directed by the Company or as required by\ncompulsory process or court order. Consultant acknowledges that the Company’s litigation strategies, and the Company’s and its subsidiaries’\nbusiness strategies and conduct which may be the subject of litigation, are highly confidential. In the event of such compulsory process or Court\norder, Consultant shall immediate notify the Company thereof and fully cooperate with the Company in any response thereto and related actions.\n(c) It is agreed that the Consultant shall be an independent contractor and shall not be the employee, servant, agent, partner or joint venturer of\nthe Company, or any of its officers, directors or employees. The Consultant has no authority to assume or create any obligation or liability, express or\nimplied, on behalf of the Company, or in the name of the Company or to bind the Company in any manner whatsoever.\n3\n(d) The Consultant shall devote such time, attention and energies to such services for the Company as the Company shall direct. The\nConsultant acknowledges that time is of the essence in the performance of such services, and Consultant’s failure to promptly, fully and completely\nprovide such services within the time desired by the Company shall constitute a material breach of this Agreement. The consulting services provided\nhereunder shall not exceed in any year twenty percent (20%) of the time the Consultant spent during 2011 while an employee of the Company.\n(e) Consultant shall make it clear to any prospective future employer, client, joint venturer or other recipient of his future services that\nConsultant has all of the foregoing obligations under this Agreement, and that any future provision of his services is subject to his fulfillment of such\nobligations.\n(f) Following the Consulting Period, Consultant will make himself available to the Company from time to time for additional consulting; in\nthis regard, both the Company and the Consultant will undertake their best efforts to assure that the Consultant will be able to perform such\nconsultancy as reasonably needed by the Company in a manner consistent with any other employment obligations possessed at that time by the\nConsultant as mutually agreed upon under a separate consulting relationship between the parties in the future. The parties expect that such consulting\nshall be limited in duration and may involve matters arising in the course of litigation either at trial or from appellate decisions.\n3. Term of Consulting Relationship. The consulting relationship under Paragraph 2 of this Agreement shall be for a period (the\n“Consulting Period”) commencing January 1, 2012, and ending December 31, 2013, unless sooner terminated by written notice of termination from\nthe Company in the event that (i) the Consultant has been convicted of or pled guilty or nolo contendere to a crime involving moral turpitude or a\ncrime providing for a term of imprisonment; or (ii) current alcohol or other substance abuse on the part of the Consultant (whether or not constituting\na crime, or the Consultant’s willful misconduct); or (iii) the Consultant’s failure to follow the instructions of the President and Chief Executive\nOfficer of the Company, or other officers or executives of the Company, or the Consultant’s neglect of duties, but in each such case only following\nwritten notice thereof; or (iv) the Consultant has breached any other obligation under this Agreement, the Stock Plans, the Awards, the Letter or the\nPlan (as hereinafter defined). If the Consulting Period is terminated for any of the reasons set forth in the preceding sentence, the rights of the\nConsultant under Paragraphs 1(a) and 1(b) and to the fees set forth in Paragraph 4 hereof shall cease on the date of such termination (and are subject\nto recovery by the Company as provided in paragraph 3(vi) of the Letter), and the Company shall have no further obligation to the Consultant under\nany of the provisions of this Agreement or the other referenced agreements. Termination shall not, however, affect the provisions of Paragraphs 5\nthrough 13 or 17 through 20, each of which shall survive any termination in accordance with their terms. Consultant’s termination of this Agreement\nwithout cause shall\n4\nconstitute a material breach of this Agreement. If the Consulting Period is terminated by reason of the Consultant’s death, to the extent then not paid\nto the Consultant, the payments under Paragraphs 1(a) and 1(b) and the fees set forth in Paragraph 4(a)(i) hereof shall be made to the Consultant’s\nestate. Survivor rights with respect to the fees described in Paragraph 4(a)(ii) shall be as determined under applicable beneficiary and other\nprovisions embodied in the Stock Plans and Awards as modified by the Letter.\n4. Consulting Period Compensation.\n(a) In full satisfaction for any and all services rendered by the Consultant hereunder, (i) during the period beginning January 1, 2012 and\nending December 31, 2013 the Consultant will be paid, on a monthly basis, a consulting fee in the gross amount of $2084.00 in consecutive monthly\ninstallments on or about the 15th of each month with respect to the immediately preceding month and (ii) the Consultant’s rights and obligations\nunder provisions of the Masco Corporation 1991 and 2005 Long Term Stock Incentive Plans (“Stock Plans”) and the Awards of restricted stock\nmade in letters previously issued to the Consultant pursuant to the Stock Plans (collectively, “Awards”) shall continue vesting following the\nTermination Date only in accordance with the provisions of the Stock Plans and Awards and that certain letter agreement between the Consultant and\nthe Company of even date herewith (“Letter”). Following the Consulting Period, for any consulting services rendered to the Company from time to\ntime, the Consultant shall be paid at a rate as agreed by the parties which shall be commensurate with the Consultant’s cash compensation as in effect\nduring 2011 as mutually agreed upon under a separate consulting relationship between the parties in the future.\n(b) The payments and extended stock vesting set forth in Paragraph 4(a)(i) and (ii) are given in consideration of both the Consultant’s services\nand the Consultant’s immediate on-call availability to perform such services when requested. In addition to such fees, the Company agrees to\nreimburse the Consultant for travel and reasonable living expenses away from the Consultant’s residence directly incurred by the Consultant at the\nCompany’s request in performing such services for the Company or as approved by the Company in advance. The Consultant agrees to keep\naccurate expense records in the form requested by the Company and to provide the Company with such records upon request.\n(c) Other than benefits accrued under the Company’s benefit plans through the Termination Date, and pursuant to that certain Supplemental\nExecutive Retirement Plan as described in the letter agreement dated July 1, 2006 as amended (the “Plan”), the Consultant shall not receive any\nother compensation from the Company nor shall he participate in or receive benefits under any of the Company’s employee fringe benefit programs\nor receive any other fringe benefits from the Company on account of services hereunder (including without limitation health, disability, life\ninsurance, retirement, pension and profit sharing benefits).\n5. Disclosure of Information. The Consultant acknowledges that the Company’s and its subsidiaries’ trade secrets, private or secret\nprocesses as they exist from time to time, and information concerning products, developments, manufacturing techniques, new\n5\nproduct plans, equipment, inventions, discoveries, patent applications, ideas, designs, engineering drawings, sketches, renderings, other drawings,\nmanufacturing and test data, computer programs, progress reports, materials, costs, specifications, processes, methods, research, procurement and\nsales activities and procedures, Company business strategies, litigation or legal strategies, promotion or pricing techniques or credit or financial data\nconcerning customers of the Company or its subsidiaries as well as information relating to the management, operation or planning of the Company\nor its subsidiaries which, in each such case, has not been made public (or, if made public, such disclosure must not have been made by the\nConsultant) (the “Proprietary Information”) are valuable, special and unique assets of the Company and its subsidiaries. In light of the highly\ncompetitive nature of the industries in which the Company and its subsidiaries conduct their businesses, the Consultant agrees that all Proprietary\nInformation heretofore or in the future obtained by the Consultant as a result of the Consultant’s relationship with the Company and its subsidiaries\nshall be considered confidential. In recognition of this fact, the Consultant agrees that he will, during and after the Consulting Period, keep the\nProprietary Information strictly confidential, will not disclose any of such Proprietary Information to any person or entity for any reason or purpose\nwhatsoever (except as directed by the Company), and he will not make use of any Proprietary Information for his own purposes or for the benefit of\nany other person or entity (except the Company and its subsidiaries) under any circumstances.\n6. Non-Competition. In order to protect the Company and its subsidiaries from the Consultant’s competitive use of the substantial\nProprietary Information and goodwill gained by the Consultant in his employment and consulting relationships with the Company and its\nsubsidiaries, the Consultant agrees that during the Consulting Period Consultant shall not, directly or indirectly:\n(a) Engage in or assist in the design, development, evaluation, planning, manufacture, sale, or marketing of any products,\ntechnologies, or services that compete with or could displace those designed, sold, manufactured, designed, evaluated, marketed,\nplanned or developed by the Company (whether solely or in conjunction with other subsidiaries of the Company or their\nemployees) at any time during the Consultant’s employment with the Company or any subsidiary or consultation with the\nCompany (the ‘Business Activities’), whether such engagement is as an officer, director, proprietor, employee, partner, investor\n(other than as a holder of less than 1% of the outstanding capital stock of a publicly traded corporation), consultant, advisor, agent\nor otherwise in any geographic areas in which the products, technologies, or services of the Company or any of its subsidiaries,\nare at that time distributed or planned to be distributed. Business Activities, include, but are not limited to, the design,\ndevelopment, evaluation, manufacture, sale, planning and marketing of plumbing products, installation of insulation, windows,\nwindow frames, paint, cabinets, tub and shower enclosures, hardware, other building and home products or services, and all other\nproducts, technologies and services offered or sold by the Company or any of its subsidiaries;\n6\n(b) Be engaged (other than on behalf of the Company) whether as an officer, director, proprietor, employee, partner, investor (other\nthan as a holder of less than 1% of the outstanding capital stock of a publicly traded corporation), consultant, advisor, agent or\notherwise, (i) as a supplier to any customer with whom the Company or any of its subsidiaries has done business during\nConsultant’s employment or consultation with the Company or any of its subsidiaries; or (ii) on behalf of any customer of, or\nsupplier to, the Company or any of its subsidiaries, with whom the Company or any of its subsidiaries has done business during\nConsultant’s employment or consultation with the Company or any of its subsidiaries;\n(c) Assist others in engaging in any of the Business Activities in the manner prohibited to the Consultant; or\n(d) Induce employees of the Company or any of its subsidiaries to engage in any activities that are prohibited to the Consultant.\nIn addition, during the Consulting Period and for a two-year period following the Consulting Period, the Consultant shall not, directly or\nindirectly:\n(e) Knowingly induce employees of the Company or any of its subsidiaries to terminate their employment.\nIt is expressly understood and agreed that although the Consultant and the Company consider the restrictions contained in each of clauses (a) through\n(e) above reasonable for the purpose of preserving for the Company and its subsidiaries their good will, trade secrets, proprietary rights and ongoing\nbusiness value, if a final judicial determination is made by a court having jurisdiction that the time and territory or any other restriction contained in\nthis Paragraph is an unenforceable restriction on the activities of the Consultant, the provisions of this Paragraph shall not be rendered void but shall\nbe deemed amended to apply as to such maximum time, territory and activities as such court may judicially determine or indicate to be reasonable.\n7. Remedies.\n(a) The Consultant acknowledges and agrees that the Company’s remedy at law for a breach or threatened breach of any of the provisions of\nParagraphs 5 or 6 of this Agreement would be inadequate and, in recognition of this fact, in the event of a breach by the Consultant of any of the\nprovisions of Paragraphs 5 or 6 of this Agreement, the Consultant agrees that, in addition to the Company’s other remedies at law, at the Company’s\noption, all rights of the Consultant under this Agreement, the Stock Plans, the Awards, the Letter and the Plan may be terminated, and the Company\nshall be entitled without posting any bond to obtain, and the Consultant agrees not to oppose (except to the extent that Consultant maintains that he\ndid not, in fact, engage in any activity in breach of this Agreement) a request for, equitable relief in the form of specific performance, temporary\nrestraining order, temporary or permanent injunction or any other equitable remedy which may then be available, relating to the conduct prohibited\n7\nunder either paragraphs 5 or 6 hereof. The Consultant acknowledges that the granting of a temporary injunction, temporary restraining order or\npermanent injunction merely prohibiting the use of Proprietary Information would not be an adequate remedy upon breach or threatened breach\nhereof. Nothing herein contained shall be construed as prohibiting the Company from pursuing, in addition, any other remedies available to it for\nsuch (or any other) breach or threatened breach.\n(b) In addition to the remedies set forth herein or available to the Company, if Consultant, in Company’s good faith judgment, reasonably\nexercised, at any time during the Consulting Period (and, with respect to breaches of Paragraph 6(e) at any time during the Consulting Period and\ntwo-year period following the Consulting Period), breaches any obligation under this Agreement, the Stock Plans, the Awards, the Letter or the Plan,\nthe Company may immediately terminate any remaining payments and the provision of any other benefits which might otherwise be required this\nAgreement, the Stock Plans, the Awards, the Letter or the Plan, or otherwise due Consultant. Upon any breach, the Company may also recover from\nthe Consultant any payments made under Paragraphs 1(a) and 1(b) hereof (except for the payments described in 1(a)(iii) and 1(a)(iv)), together with\nany proceeds from exercise of any Options or sale of Restricted Stock for which restrictions have lapsed at any time within two years following the\nTermination Date, in each case (cash and stock) net of any state and federal income taxes paid by Consultant. The Company may also recover all\ncost and expenses incurred in any efforts to enforce its rights under this Agreement. The Company shall have the right to set off any amount owed to\nConsultant against any amount owed by Consultant hereunder.\n8. Notices. Any notice required or permitted to be given under this Agreement shall be deemed properly given if in writing and delivered\nby hand and receipt is acknowledged by the party to whom said notice shall be directed, or if mailed by certified or registered mail, postage prepaid\nwith return receipt requested, or sent by express courier service, charges prepaid by shipper, to the addresses of each party stated above and, in the\ncase of notices to the Company, to the attention of its General Counsel at Masco Corporation, 21001 Van Born Road, Taylor, Michigan 48180 (or to\nsuch other address as a party is directed pursuant to written notice from the other party).\n9. Assignment. This Agreement shall not be assignable by either party except by the Company to any subsidiary or affiliate of the\nCompany or to any successor in interest to the Company’s business, and shall be binding upon the Company in the case of any change in control or\nalternate change in control as defined in the Plan.\n10. Entire Agreement. This instrument and the Stock Plans, the Awards, the Letter and the Plan contain the entire agreements of the\nparties relating to the subject of consulting and termination of Consultant’s employment, supersede and replace in their entirety any existing\nemployment agreement or consulting agreement of the Consultant and may not be waived, changed, modified, extended or discharged orally but\nonly by agreement in writing signed by the party against whom enforcement of any such waiver, change, modification, extension or discharge is\nsought. The waiver by the Company of a breach of any provision of this Agreement by the Consultant shall not operate or be construed as a waiver\nof a breach of any other provision or of any subsequent breach by the Consultant.\n8\n11. No Disparagement. Each of the parties agrees not to criticize, disparage or otherwise demean in any way the other or Company’s\naffiliates or their respective products, services, technologies, officers, directors or employees.\n12. RELEASE .\n(a) In consideration of the payments to be made and the agreements and consideration provided by the Company hereunder and the\ncovenants contained in the Letter, Consultant, on Consultant’s own behalf and on behalf of Consultant’s heirs, executors, agents, successors\nand assigns, releases and forever discharges the Company, its subsidiaries and affiliates and their respective officers, agents, current and\nformer employees, successors, predecessors and assigns and any other person, firm, corporation or legal entity in any way related to the\nCompany or its subsidiaries and affiliates (the “Released Parties”), of and from all claims, demands, actions, causes of action, statutory\nrights, duties, debts, sums of money, suits, reckonings, contracts, agreements, controversies, promises, damages, obligations, responsibilities,\nliabilities and accounts of whatsoever kind, nature or description, direct or indirect, in law or in equity, in contract or in tort or otherwise,\nwhich Consultant ever had or which Consultant now has or hereafter can, shall or may have, against any of the Released Parties, for or by\nreason of any matter, cause, or thing whatsoever up to the present time, whether known or unknown, suspected or unsuspected at the\npresent time, or which may be based upon pre-existing acts, claims or events occurring at any time up to the date hereof which may result in\nfuture damages, including without limitation all direct or indirect claims either for direct or consequential damages of any kind whatsoever\nand rights or claims arising under Title VII, any state civil-rights legislation, claims of handicap discrimination, claims relating to the\ntermination of employment as referred to herein, and claims of age discrimination under the Age Discrimination in Employment Act of\n1967, as amended (ADEA), against any of the Released Parties, other than (a) claims arising under the express provisions of this Agreement,\n(b) the right to receive benefits accrued through the end of the employment period under the Company’s benefit plans and (c) claims arising\nunder any applicable worker’s compensation statute. It is the intention of the parties that this general release by the Consultant will be\nconstrued as broadly as possible.\n(b) Consultant has: (i) the sole right, title, and interest to the claims released under this Agreement, (ii) neither assigned or transferred, nor\npurported to assign or transfer, to any person or entity, any claim released by this Agreement, and (iii) neither assigned or transferred, nor purported\nto assign or transfer, to any person or entity, the right to the monies, in whole or in part, being paid pursuant to this Agreement.\n9\n13. Non-Disclosure. Other than to the extent required to perform consulting services hereunder, or as required by applicable securities\nlaws, until such time as this Agreement becomes publicly disclosed by the Company in its required securities filings or otherwise, Consultant shall\nnot disclose the fact of this Agreement or any of its terms to any third parties other than to Consultant’s ex-spouse, tax and financial advisors, banks,\ncreditors, attorneys, significant other and children, each of whom, in turn shall be bound by this paragraph not to further disclose this Agreement.\nConsultant agrees that any violation of this confidentiality provision will result in substantial and irreparable injury to Company. In the event of such\na violation, in addition to the Company’s right to terminate any further payment or benefits as permitted under Paragraph 7, Consultant will also be\nliable to Company for such economic damages and equitable relief as a Court may deem appropriate.\n14. Execution and Revocation. (a) This Agreement was first communicated to Consultant on November 5, 2011. Consultant is not\nrequired to, but may, accept this Agreement by signing and dating this Agreement on or before December 6, 2011 which is in excess of twenty-one\n(21) days from the date this Agreement was first communicated to Consultant.\n(b) Consultant understands that this Agreement may be revoked by him for a period of seven (7) calendar days following his execution of this\nAgreement. The Agreement is not effective until this revocation period has expired. Consultant understands that any revocation to be effective must\nbe in writing and either postmarked within seven (7) days of the execution of this Agreement and addressed to Chuck Greenwood, Vice President—\nHuman Resources, Masco Corporation, 21001 Van Born Road, Taylor, Michigan 48180 or hand delivered within seven (7) days to Chuck\nGreenwood at the address listed above. If revocation is by mail, certified mail, return receipt requested is required to show proof of mailing.\n15. No Payment. No payments or benefits under this Agreement shall be made to Consultant until the seven (7) day revocation period\nhas expired. If Consultant does not revoke this Agreement within the seven (7) day revocation period, then this Agreement shall become binding on\nthe Company and Consultant as otherwise provided herein, and the payments and benefits provided in Paragraph 1 will commence.\n16. Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid\nunder applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or\nrule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement\nwill be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained in this\nAgreement, while giving maximum effort to the intent of the parties as reflected in this Agreement.\n10\n17. Arbitration. The parties hereto agree that arbitration will be the sole and exclusive remedy for any claims which may arise between\nthe parties (other than requests by the Company for immediate or preliminary injunctive relief) in any way relating to this Agreement or for the\nbreach thereof. All such claims shall be submitted to arbitration in accordance with the applicable arbitration rules of the American Arbitration\nAssociation (“AAA”), except as those rules conflict with applicable Delaware law. The award issued by the arbitrator shall be final and binding on\nthe parties, and judgment on the award may be entered in any court of competent jurisdiction. The fees and costs of the arbitrator and the arbitration\nand administrative fees shall be borne equally by the parties. Each party understands and agrees that this arbitration provision constitutes a waiver of\ntheir respective rights to adjudicate all claims in court and before a jury, and the parties are instead opting to arbitrate any such claims. All arbitration\nproceedings will be conducted in the Detroit metropolitan area. This arbitration provision explicitly replaces and supersedes any prior agreements\nbetween the parties concerning mediation or any other alternate dispute resolution.\n18. Headings and Construction. The headings of the Paragraphs are for convenience only and shall not control or affect the meaning or\nconstruction or limit the scope or intent of any of the provisions of this Agreement. The terms “and” and “or” herein shall each be interpreted to\ninclude the other, i.e. “and/or.”\n19. Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement. A facsimile signature, whether by fax or other electronic form, shall be deemed an original\nand shall bind the signing Party\n20. Governing Law. All questions concerning the construction, validity and interpretation of this Agreement will be governed by and\nconstrued in accordance with the domestic laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or\nrule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State\nof Delaware. It is the intent of the parties that the provisions of this Agreement shall be interpreted to be consistent with provisions of Section 409A\nof the Internal Revenue Code.\n11\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.\nMASCO CORPORATION\nBy: /s/ Timothy Wadhams\nIts: President and CEO\n/s/ Donald J. DeMarie, Jr.\nConsultant\nDated: December 6, 2011.\n12\nLOGO\nJanuary 1, 2012\nMr. Donald J. DeMarie\n21001 Van Born Road\nTaylor, Michigan 48180\nDear Mr. DeMarie:\nUnder a Release and Consulting Agreement of even date herewith (the “Agreement”), you and Masco Corporation (“Company” or “Masco”)\nhave agreed to a termination of your employment with Masco on January 1, 2012 and the commencement of a consulting relationship running from\nJanuary 1, 2012 through December 31, 2013 (the “Consulting Period”). In connection with that change in your employment relationship, this letter\nsets forth a modification to letters from Masco for Awards of restricted stock (“Grants”) made prior to the date hereof for Masco’s common stock\npursuant to Masco’s 1991 and 2005 Long Term Stock Incentive Plans (“Stock Plans”). Terms which are capitalized herein and not otherwise defined,\nhave their meaning as defined in the Agreement.\n1) The letters making Options on and after February 16, 2000 in each case included an Appendix with the following language (for Options\nmade after December, 2008 the following language is included in the computerized text captioned “Terms and Conditions”) (the “Clawback”):\nIf your employment with the Company [i.e., Masco] or any of its subsidiaries is terminated for any reason, other than death,\npermanent and total disability, retirement on or after normal retirement date or the sale or other disposition of the business or subsidiary\nemploying you, and other than termination of employment in connection with a Change in Control, and if any installments of the Option\nor any restoration options granted upon any exercise of the Option became exercisable within the two year period prior to the date of\nsuch termination (such installments and restoration options being referred to as the “Subject Options”), by accepting the Option you\nagree that the following provisions will apply:\n21001 VAN BORN ROAD\nTAYLOR, MICHIGAN 48180\n313-274-7400\nMr. Donald J. DeMarie\nJanuary 1, 2012\nPage 2\n(1) Upon the demand of the Company you will pay to the Company in cash within 30 days after the date of such termination the\namount of income realized for income tax purposes from the exercise of any Subject Options, net of all federal, state and other\ntaxes payable on the amount of such income, plus all costs and expenses of the Company in any effort to enforce its rights\nhereunder; and\n(2) Any right you would otherwise have, pursuant to the terms of the Stock Plan and this Agreement, to exercise any Subject\nOptions on or after the date of such termination, shall be extinguished as of the date of such termination.\n2) Such letters granting Options and those letters making Grants on and after July 5, 2000 also included the following language in which you\nagreed not to become associated in any Prohibited Capacity in certain Business Activities (the “Non-Compete”) and (in the second of the two\nparagraphs) requiring you to repay certain amounts to the Company if you breach or challenge such obligations (the “Recapture”). (For brevity,\nparagraphs from the Option Appendices (contained in “Terms and Conditions” in post-2008 Options) follow; paragraphs from the Grant Appendices\n(contained in “Terms and Conditions” in post-2008 Grants) are substantially identical except with appropriately changed reference to Grants rather\nthan Options, and are hereby incorporated by reference as if set forth herein):\nIn addition you agree, in consideration for the grant of the Option and regardless of whether the Option becomes exercisable or is\nexercised, while you are employed or retained as a consultant by the Company or any of its subsidiaries and for a period of one year following\nany termination of your employment and, if applicable, any consulting relationship with the Company or any of its subsidiaries other than a\ntermination in connection with a Change in Control, not to engage in, and not to become associated in a “Prohibited Capacity” (as hereinafter\ndefined) with any other entity engaged in, any “Business Activities” (as hereinafter defined) and not to encourage or assist others in\nencouraging any employee of the Company or any of its subsidiaries to terminate employment or to become engaged in any such Prohibited\nCapacity with an entity engaged in any Business Activities. “Business Activities” shall mean the design, development, manufacture, sale,\nmarketing or servicing of any product or providing of services competitive with the products or services of (x) the Company or any subsidiary\nif you are employed by or consulting with the Company at any time the Option is outstanding, or (y) the subsidiary employing or retaining you\nat any time while the Option is outstanding, to the extent such competitive products or services are distributed or provided either (1) in the\nsame geographic area as are such products or services of the Company or any of its subsidiaries, or (2) to any of the same customers as such\nproducts or services of the Company or any of its subsidiaries are distributed or provided. “Prohibited Capacity” shall mean being associated\nMr. Donald J. DeMarie\nJanuary 1, 2012\nPage 3\nwith an entity as an employee, consultant, investor or another capacity where (1) confidential business information of the Company or any of\nits subsidiaries could be used in fulfilling any of your duties or responsibilities with such other entity, (2) any of your duties or responsibilities\nare similar to or include any of those you had while employed or retained as a consultant by the Company or any of its subsidiaries, or (3) an\ninvestment by you in such other entity represents more than 1% of such other entity’s capital stock, partnership or other ownership interests.\nShould you either breach or challenge in judicial or arbitration proceedings the validity of any of the restrictions contained in the\npreceding paragraph, by accepting the Option you agree, independent of any equitable or legal remedies that the Company may have and\nwithout limiting the Company’s right to any other equitable or legal remedies, to pay to the Company in cash immediately upon the demand of\nthe Company (1) the amount of income realized for income tax purposes from the exercise of any portion of the Option, and any restoration\noptions granted upon any exercise of the Option, net of all federal, state and other taxes payable on the amount of such income (and reduced by\nany amount already paid to the Company under the [paragraph containing the Clawback for Options]) but only to the extent such exercises\noccurred on or after your termination of employment or, if applicable, any consulting relationship with the Company or its subsidiary or within\nthe two year period prior to the date of such termination, plus (2) all costs and expenses of the Company in any effort to enforce its rights\nunder this or the preceding paragraph. The Company shall have the right to set off or withhold any amount owed to you by the Company or\nany of its subsidiaries or affiliates for any amount owed to the Company by you hereunder.\n3) In consideration of the mutual covenants and certain payments and other benefits to be received by you under this letter agreement\n(“Letter”) and under the Agreement, you and Masco hereby agree (i) Masco agrees to waive the Clawbacks, (ii) you agree that the Non-Compete\nparagraph (set forth above as the first paragraph quoted in Section 2) is hereby deleted in its entirety and is replaced by the following paragraphs (the\n“New Non-Compete”):\nIn order to protect the Company and its subsidiaries from your competitive use of the substantial Proprietary Information and goodwill gained\nby you in your employment and consulting relationships with the Company and its subsidiaries, you agree that during the Consulting Period,\nyou shall not, directly or indirectly: (a) engage in or assist in the design, development, evaluation, planning, manufacture, sale, or marketing of\nany products, technologies, or services that compete with or could displace those designed, sold, manufactured, designed, evaluated, marketed,\nplanned or developed by the Company (whether solely or in conjunction with other subsidiaries of the Company or their employees) at any\ntime during your employment with the Company or any subsidiary or consultation with the Company (the ‘Business Activities’), whether such\nengagement is as an officer, director, proprietor, employee, partner, investor (other than as a holder of less than 1% of the outstanding capital\nstock of a publicly traded\nMr. Donald J. DeMarie\nJanuary 1, 2012\nPage 4\ncorporation), consultant, advisor, agent or otherwise in any geographic areas in which the products, technologies, or services of the Company\nor any of its subsidiaries, are at that time distributed or planned to be distributed. Business Activities, include, but are not limited to the design,\ndevelopment, evaluation, manufacture, sale, planning and marketing of plumbing products, installation of insulation, windows, window\nframes, paint, cabinets, tub and shower enclosures, hardware, other building and home products or services, and all other products,\ntechnologies and services offered or sold by the Company or any of its subsidiaries; (b) be engaged (other than on behalf of the Company)\nwhether as an officer, director, proprietor, employee, partner, investor (other than as a holder of less than 1% of the outstanding capital stock of\na publicly traded corporation), consultant, advisor, agent or otherwise, (i) as a supplier to any customer with whom the Company or any of its\nsubsidiaries has done business during your employment or consultation with the Company or any of its subsidiaries or (ii) on behalf of any\ncustomer of, or supplier to, the Company or any of its subsidiaries, with whom the Company or any of its subsidiaries has done business\nduring your employment or consultation with the Company or any of its subsidiaries; (c) assist others in engaging in any of the Business\nActivities in the manner prohibited to you; or (d) induce employees of the Company or any of its subsidiaries to engage in any activities that\nare prohibited to you. In addition, during the Consulting Period and for a two-year period following the Consulting Period, you shall not,\ndirectly or indirectly: (e) knowingly induce employees of the Company or any of its subsidiaries to terminate their employment.\nIt is expressly understood and agreed that although you and the Company consider the restrictions contained in each of clauses (a) through\n(e) above reasonable for the purpose of preserving for the Company and its subsidiaries their good will, trade secrets, proprietary rights and\nongoing business value, if a final judicial determination is made by a court having jurisdiction that the time and territory or any other\nrestriction contained in the foregoing Paragraph is an unenforceable restriction on your activities, the provisions of the foregoing Paragraph\nshall not be rendered void but shall be deemed amended to apply as to such maximum time, territory and activities as such court may judicially\ndetermine or indicate to be reasonable;\n(iii) Masco agrees to the continued lapsing of restrictions on all of the shares under the Grants following your termination of employment; (iv) you\nacknowledge that the consideration conveyed to you by the continued lapsing of restrictions on Grants is good and sufficient consideration for the\nConsulting Services which are required of you under the Agreement, and that, among other Remedies provided upon breach as described in\nSection 7 of the Agreement, your breach of the Agreement or of the Grants or this Letter shall thereupon cause the termination of any further lapsing\nof restrictions otherwise provided in subsection (iii) hereinabove; (v) you hereby specifically (and without limitation) acknowledge and agree to the\napplicability of subparagraphs (a), (b), (c) and (d) of the New Non-Compete during the Consulting Period and to the applicability of subparagraph\n(e) of the New Non-Compete during the Consulting Period and for a period of two years thereafter and, upon the breach of any such provisions of\nthe New Non-Compete during the respective periods, you agree, in addition to any other equitable or legal remedies that Masco may have and\nwithout limiting Masco’s right to any\nMr. Donald J. DeMarie\nJanuary 1, 2012\nPage 5\nother equitable or legal remedies, to pay to Masco in cash immediately upon the demand of Masco the amount of income realized for income tax\npurposes from (A) the exercise of any portion of any option granted under the Stock Plans, net of all federal, state and other taxes payable on the\namount of such income, but only to the extent such exercise occurred on or after your termination of employment and (B) income realized from any\ngrant of shares of Restricted Stock under the Stock Plans, net of all federal, state and other taxes payable on the amount of such income, but only to\nthe extent such income is realized from restrictions lapsing on shares (if any) within the two years after your termination of employment, plus in all\ncases all costs and expenses of Masco incurred in any effort to enforce its rights under this paragraph or under the New Non-Competes (or the Non-\nCompetes, with reference to any time prior to the date hereof). Masco shall have the right to set off or withhold any amount owed to you by Masco\nfor any amount owed by you hereunder.\n4) In light of your position with the Company possessing non-public information, including with respect to our 2011 results of operations, and\nyour continuing relationship with the Company as a Consultant under the Agreement, you agree that you will comply with the provisions of the\nMasco Corporation Policy Against Trading on Inside Information so long as you are a Consultant under the Agreement, including that you will not\nengage in transactions in the Company’s securities until the second day following the Company’s release of its 2011 results of operations, expected\nto occur in the first quarter of 2012.\nIf you are in agreement with the foregoing, please evidence your agreement by signing and returning the enclosed duplicate copy of this Letter\nto the undersigned, whereupon (but no sooner than the time the Agreement shall become finally effective pursuant to its Paragraphs 14 and 15) the\nprovisions of this Letter shall become effective.\nVery truly yours,\n/s/ Timothy Wadhams\nTimothy Wadhams\nPresident and Chief Executive Officer\nAgreed:\n/s/ Donald D. Marie, Jr.\n/s/ December 6, 2011\nDonald J. DeMarie, Jr.\nDate
10b162a253bd1e2266473c70ddeb7b05.pdf	effective_date jurisdiction party term	EX-99.(D)(2)(B) 19 dex99d2b.htm NONDISCLOSURE AGREEMENT\nExhibit (d)(2)(B)\nNONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement is made and entered into as of June 25, 2008, by and between Superior Essex Inc. (“Superior Essex”) and LS Cable\nLtd. (“LS Cable”).\n1. Purpose. Superior Essex and LS Cable have entered into a non-disclosure agreement dated April 22, 2008 (the “SEI NDA”) and an Agreement\nand Plan of Merger, dated as of June 11, 2008 (the “Merger Agreement”). In connection with its obligations under the Merger Agreement,\nincluding obtaining debt and equity financing and consents, approvals, waivers and amendments of existing debt agreements (the\n“Financing”), and the consummation of the transactions contemplated by the Merger Agreement, including merger integration planning\nactivities (the “Transactions”), LS Cable may disclose to Superior Essex certain confidential information which LS Cable desires Superior\nEssex to treat as confidential (the “Confidential Information”). Capitalized terms used but not defined herein shall have the meanings ascribed\nin the Merger Agreement. Confidential Information does not include any information which: (a) is or becomes generally available to the public\nother than as a result of a disclosure by Superior Essex in violation of this agreement; (b) is already in the possession of Superior Essex on a\nnon-confidential basis; (c) is obtained by Superior Essex from a third party; provided that the third party was not known by Superior Essex to\nbe bound by an obligation of confidentiality to the source of the information; (d) is independently developed by Superior Essex without use of\nthe Confidential Information; or (e) is required by law to be disclosed.\n2. Non-use and Non-disclosure. Superior Essex agrees not to use any Confidential Information for any purpose except in connection with the\nFinancing and the Transactions. Superior Essex agrees to treat the Confidential Information strictly confidential and not disclose it, except to\nthose of its Representatives (as defined in the Confidentiality Agreement) who are required to have the information in connection with the\nFinancing or the Transactions.\n3. Term. This agreement shall become effective as of the date written below and shall continue until the earlier of (i) the Effective Time or (ii) a\nperiod of 2 years from the date hereof, unless earlier terminated by mutual agreement of the parties hereto.\n4. General. This agreement shall be governed and construed in accordance with the laws of the State of New York applicable to agreements made\nand to be performed entirely within New York. This agreement, the Confidentiality Agreement and the Merger Agreement shall constitute the\nentire agreement between us with regard to the subject matter hereof; provided that if there is any conflict between the provisions of this\nagreement and the provisions of the Merger Agreement or the Confidentiality Agreement, the terms of the Merger Agreement and the\nConfidentiality Agreement shall govern. No modification, amendment or waiver shall be binding without the written consent of each of the\nparties hereto. This agreement shall inure to the benefit of and be binding upon the respective successors and permitted assigns of the parties\nhereto. This agreement may be signed by facsimile and in one or more counterparts, each of which shall be deemed an original but all of which\nshall be deemed to constitute a single instrument.\n5. Financing Sources. In connection with the Financing and the Transactions, any Representatives of Superior Essex or LS Cable may disclose\nEvaluation Material (as defined in the Confidentiality Agreement) or Confidential Information to other of its Representatives, or\nRepresentatives of the other party, so long as the receiving Representative is bound by obligations of confidentiality on substantially the same\nterms as provided in the Confidentiality Agreement (with respect to Representatives of LS Cable) or this agreement (with respect to\nRepresentatives of Superior Essex), provided that under the Confidentiality Agreement, the term “Transaction” shall include the Financing.\nIN WITNESS WHEREOF, the parties hereto have duly executed this agreement as of the date written above.\nSUPERIOR ESSEX INC.\nLS CABLE LTD.\nBy:\n/s/ David S. Aldridge\nBy:\n/s/ Choong-hyun Kim\nPrinted Name: David S. Aldridge\nPrinted Name: Choong-hyun Kim\nTitle:\nEVP and CFO\nTitle:\nSenior Vice President	EX-99.(D)(2)(B) 19 dex99d2b.htm NONDISCLOSURE AGREEMENT Exhibit (d)(2)(B)\nNONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement is made and entered into as of June 25, 2008, by and between Superior Essex Inc. (“Superior Essex”) and LS Cable Ltd. (“LS Cable”). 1. Purpose. Superior Essex and LS Cable have entered into a non-disclosure agreement dated April 22, 2008 (the “SEI NDA”) and an Agreement\nand Plan of Merger, dated as of June 11, 2008 (the “Merger Agreement”). In connection with its obligations under the Merger Agreement,\nincluding obtaining debt and equity financing and consents, approvals, waivers and amendments of existing debt agreements (the\n“Financing”), and the consummation of the transactions contemplated by the Merger Agreement, including merger integration planning\nactivities (the “Transactions”), LS Cable may disclose to Superior Essex certain confidential information which LS Cable desires Superior\nEssex to treat as confidential (the “Confidential Information™). Capitalized terms used but not defined herein shall have the meanings ascribed\nin the Merger Agreement. Confidential Information does not include any information which: (a) is or becomes generally available to the public\nother than as a result of a disclosure by Superior Essex in violation of this agreement; (b) is already in the possession of Superior Essex on a\nnon-confidential basis; (c) is obtained by Superior Essex from a third party; provided that the third party was not known by Superior Essex to\nbe bound by an obligation of confidentiality to the source of the information; (d) is independently developed by Superior Essex without use of\nthe Confidential Information; or (e) is required by law to be disclosed.\nNon-use and Non-disclosure. Superior Essex agrees not to use any Confidential Information for any purpose except in connection with the\nFinancing and the Transactions. Superior Essex agrees to treat the Confidential Information strictly confidential and not disclose it, except to\nthose of its Representatives (as defined in the Confidentiality Agreement) who are required to have the information in connection with the\nFinancing or the Transactions.\nTerm. This agreement shall become effective as of the date written below and shall continue until the earlier of (i) the Effective Time or (ii) a\nperiod of 2 years from the date hereof, unless earlier terminated by mutual agreement of the parties hereto.\nGeneral. This agreement shall be governed and construed in accordance with the laws of the State of New York applicable to agreements made\nand to be performed entirely within New York. This agreement, the Confidentiality Agreement and the Merger Agreement shall constitute the\nentire agreement between us with regard to the subject matter hereof; provided that if there is any conflict between the provisions of this\nagreement and the provisions of the Merger Agreement or the Confidentiality Agreement, the terms of the Merger Agreement and the\nConfidentiality Agreement shall govern. No modification, amendment or waiver shall be binding without the written consent of each of the\nparties hereto. This agreement shall inure to the benefit of and be binding upon the respective successors and permitted assigns of the parties\nhereto. This agreement may be signed by facsimile and in one or more counterparts, each of which shall be deemed an original but all of which\nshall be deemed to constitute a single instrument.\nFinancing Sources. In connection with the Financing and the Transactions, any Representatives of Superior Essex or LS Cable may disclose\nEvaluation Material (as defined in the Confidentiality Agreement) or Confidential Information to other of its Representatives, or\nRepresentatives of the other party, so long as the receiving Representative is bound by obligations of confidentiality on substantially the same\nterms as provided in the Confidentiality Agreement (with respect to Representatives of LS Cable) or this agreement (with respect to\nRepresentatives of Superior Essex), provided that under the Confidentiality Agreement, the term “Transaction” shall include the Financing.\n \nIN WITNESS WHEREOF, the parties hereto have duly executed this agreement as of the date written above.\nSUPERIOR ESSEX INC. LS CABLE LTD.\nBy: /s/ David S. Aldridge By: /s/ Choong-hyun Kim\nPrinted Name: David S. Aldridge Printed Name: Choong-hyun Kim\nTitle: EVP and CFO Title: Senior Vice President	EX-99.(D)(2)(B) 19 dex99d2b.htm NONDISCLOSURE AGREEMENT\nExhibit (d)(2)(B)\nNONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement is made and entered into as of June 25, 2008, by and between Superior Essex Inc. ("Superior Essex") and LS Cable\nLtd. ("LS Cable").\n1.\nPurpose. Superior Essex and LS Cable have entered into a non-disclosure agreement dated April 22, 2008 (the "SEI NDA") and an Agreement\nand Plan of Merger, dated as of June 11, 2008 (the "Merger Agreement"). In connection with its obligations under the Merger Agreement,\nincluding obtaining debt and equity financing and consents, approvals, waivers and amendments of existing debt agreements (the\n"Financing"), and the consummation of the transactions contemplated by the Merger Agreement, including merger integration planning\nactivities (the "Transactions"), LS Cable may disclose to Superior Essex certain confidential information which LS Cable desires Superior\nEssex to treat as confidential (the "Confidential Information"). Capitalized terms used but not defined herein shall have the meanings ascribed\nin\nthe Merger Agreement. Confidential Information does not include any information which: (a) is or becomes generally available to the public\nother than as a result of a disclosure by Superior Essex in violation of this agreement; (b) is already in the possession of Superior Essex on\na\nnon-confidential basis; (c) is obtained by Superior Essex from a third party; provided that the third party was not known by Superior Essex to\nbe bound by an obligation of confidentiality to the source of the information; (d) is independently developed by Superior Essex without use of\nthe Confidential Information; or (e) is required by law to be disclosed.\n2.\nNon-use and Non-disclosure. Superior Essex agrees not to use any Confidential Information for any purpose except in connection with the\nFinancing\nand the Transactions. Superior Essex agrees to treat the Confidential Information strictly confidential and not disclose it, except\nto\nthose of its Representatives (as defined in the Confidentiality Agreement) who are required to have the information in connection with the\nFinancing or the Transactions.\n3.\nTerm. This agreement shall become effective as of the date written below and shall continue until the earlier of (i) the Effective Time or (ii) a\nperiod of 2 years from the date hereof, unless earlier terminated by mutual agreement of the parties hereto.\n4.\nGeneral. This agreement shall be governed and construed in accordance with the laws of the State of New York applicable to agreements made\nand to be performed entirely within New York. This agreement, the Confidentiality Agreement and the Merger Agreement shall constitute\nthe\nentire agreement between us with regard to the subject matter hereof; provided that if there is any conflict between the provisions of this\nagreement and the provisions of the Merger Agreement or the Confidentiality Agreement, the terms of the Merger Agreement and the\nConfidentiality Agreement shall govern. No modification, amendment or waiver shall be binding without the written consent of each of the\nparties hereto. This agreement shall inure to the benefit of and be binding upon the respective successors and permitted assigns of the parties\nhereto. This agreement may be signed by facsimile and in one or more counterparts, each of which shall be deemed an original but all of which\nshall be deemed to constitute a single instrument.\n5.\nFinancing Sources. In connection with the Financing and the Transactions, any Representatives of Superior Essex or LS Cable may disclose\nEvaluation Material (as defined in the Confidentiality Agreement) or Confidential Information to other of its Representatives, or\nRepresentatives of the other party, so long as the receiving Representative is bound by obligations of confidentiality on substantially the same\nterms as provided in the Confidentiality Agreement (with respect to Representatives of LS Cable) or this agreement (with respect to\nRepresentatives of Superior Essex), provided that under the Confidentiality Agreement, the term "Transaction" shall include the Financing.\nIN WITNESS WHEREOF, the parties hereto have duly executed this agreement as of the date written above.\nSUPERIOR ESSEX INC.\nLS CABLE LTD.\nBy:\n/s/ David S. Aldridge\nBy:\n/s/ Choong-hyun Kim\nPrinted Name: David S. Aldridge\nPrinted Name: Choong-hyun Kim\nTitle:\nEVP and CFO\nTitle:\nSenior Vice President	EX-99.(D)(2)(B) 19 dex99d2b.htm NONDISCLOSURE AGREEMENT\nExhibit (d)(2)(B)\nNONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement is made and entered into as of June 25, 2008, by and between Superior Essex Inc. (“Superior Essex”) and LS Cable\nLtd. (“LS Cable”).\n1. Purpose. Superior Essex and LS Cable have entered into a non-disclosure agreement dated April 22, 2008 (the “SEI NDA”) and an Agreement\nand Plan of Merger, dated as of June 11, 2008 (the “Merger Agreement”). In connection with its obligations under the Merger Agreement,\nincluding obtaining debt and equity financing and consents, approvals, waivers and amendments of existing debt agreements (the\n“Financing”), and the consummation of the transactions contemplated by the Merger Agreement, including merger integration planning\nactivities (the “Transactions”), LS Cable may disclose to Superior Essex certain confidential information which LS Cable desires Superior\nEssex to treat as confidential (the “Confidential Information”). Capitalized terms used but not defined herein shall have the meanings ascribed\nin the Merger Agreement. Confidential Information does not include any information which: (a) is or becomes generally available to the public\nother than as a result of a disclosure by Superior Essex in violation of this agreement; (b) is already in the possession of Superior Essex on a\nnon-confidential basis; (c) is obtained by Superior Essex from a third party; provided that the third party was not known by Superior Essex to\nbe bound by an obligation of confidentiality to the source of the information; (d) is independently developed by Superior Essex without use of\nthe Confidential Information; or (e) is required by law to be disclosed.\n2. Non-use and Non-disclosure. Superior Essex agrees not to use any Confidential Information for any purpose except in connection with the\nFinancing and the Transactions. Superior Essex agrees to treat the Confidential Information strictly confidential and not disclose it, except to\nthose of its Representatives (as defined in the Confidentiality Agreement) who are required to have the information in connection with the\nFinancing or the Transactions.\n3. Term. This agreement shall become effective as of the date written below and shall continue until the earlier of (i) the Effective Time or (ii) a\nperiod of 2 years from the date hereof, unless earlier terminated by mutual agreement of the parties hereto.\n4. General. This agreement shall be governed and construed in accordance with the laws of the State of New York applicable to agreements made\nand to be performed entirely within New York. This agreement, the Confidentiality Agreement and the Merger Agreement shall constitute the\nentire agreement between us with regard to the subject matter hereof; provided that if there is any conflict between the provisions of this\nagreement and the provisions of the Merger Agreement or the Confidentiality Agreement, the terms of the Merger Agreement and the\nConfidentiality Agreement shall govern. No modification, amendment or waiver shall be binding without the written consent of each of the\nparties hereto. This agreement shall inure to the benefit of and be binding upon the respective successors and permitted assigns of the parties\nhereto. This agreement may be signed by facsimile and in one or more counterparts, each of which shall be deemed an original but all of which\nshall be deemed to constitute a single instrument.\n5. Financing Sources. In connection with the Financing and the Transactions, any Representatives of Superior Essex or LS Cable may disclose\nEvaluation Material (as defined in the Confidentiality Agreement) or Confidential Information to other of its Representatives, or\nRepresentatives of the other party, so long as the receiving Representative is bound by obligations of confidentiality on substantially the same\nterms as provided in the Confidentiality Agreement (with respect to Representatives of LS Cable) or this agreement (with respect to\nRepresentatives of Superior Essex), provided that under the Confidentiality Agreement, the term “Transaction” shall include the Financing.\nIN WITNESS WHEREOF, the parties hereto have duly executed this agreement as of the date written above.\nSUPERIOR ESSEX INC.\nLS CABLE LTD.\nBy:\n/s/ David S. Aldridge\nBy:\n/s/ Choong-hyun Kim\nPrinted Name: David S. Aldridge\nPrinted Name: Choong-hyun Kim\nTitle:\nEVP and CFO\nTitle:\nSenior Vice President
12a10b807377a8be61d204d4624b034f.pdf	effective_date jurisdiction party term	EX-99.(E)(2) 2 d226816dex99e2.htm EX-99.(E)(2)\nExhibit (e)(2)\nQLOGIC CORPORATION\n26650 ALISO VIEJO PARKWAY\nALISO VIEJO, CA 92656\nApril 19, 2016\nCavium, Inc.\n2315 N. First Street\nSan Jose, California 95131\nAttention: Syed Ali, President and Chief Executive Officer\nMUTUAL CONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nIn connection with your possible interest in a merger, acquisition, or other strategic combination (the “Transaction”) involving\nQLogic Corporation (“QLogic”), Cavium, Inc. (“Cavium”) has requested that we or our representatives furnish you or your\nrepresentatives with certain information relating to QLogic or the Transaction, each of which is a “party” or collectively “parties.”\nIn addition, we have requested that you or your representatives furnish us with information relating to Cavium or the Transaction.\nAll such information (whether oral or contained on written or other tangible medium) furnished (after April 19, 2016, the “Effective\nDate” hereof) by any of us, Cavium or our respective directors, officers, employees, affiliates, representatives (including, without\nlimitation, financial advisors, attorneys and accountants) or agents (collectively, “Representatives”) to the other party or their\nrespective Representatives and all analyses, compilations, forecasts, studies or other documents prepared by a party or their\nRepresentatives in connection with a party’s review of, or interest in, the Transaction which contain or reflect any such information\nis hereinafter referred to as the “Information”. The term Information will not, however, include information which (i) is or becomes\npublicly available other than as a result of a disclosure by a receiving party in breach of this letter agreement, (ii) is or becomes\navailable to a party on a non-confidential basis from a source (other than from another party to this letter agreement or their\nRepresentatives) which, to the best of a party’s knowledge, is not prohibited from disclosing such information by a legal,\ncontractual or fiduciary obligation, or (iii) was or is independently developed by a party or their Representatives without reference\nto Information provided by a disclosing party. QLogic acknowledges that Cavium possesses significant amounts of Ethernet\ntechnology and information as a result of the Ethernet NICs that Cavium has developed and is currently selling into the hyperscale\nmarket. Each party and their Representatives, in their capacity as a provider of information, is referred to in this letter agreement as\na “disclosing party”; and each party and their Representatives, in their capacity as a recipient of information, is referred to in this\nletter agreement as a “receiving party.”\n1\nAccordingly, each of us hereby agrees that:\n1. Each party (i) will keep the Information confidential and will not (except as required by applicable law, regulation or legal\nprocess, and only after compliance with paragraph 3 below), without the prior written consent of the other party, disclose any\nInformation in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction;\nprovided, however, that each party may reveal the Information to their respective Representatives (a) who need to know the\nInformation for the purpose of evaluating the Transaction, (b) who are informed by you of the confidential nature of the\nInformation and (c) who agree to act in accordance with the confidentiality obligations of this letter agreement. Each party will\nbe responsible for any breach of this letter agreement by any of their Representatives.\n2. Each party and their Representatives will not (except as required by applicable law, regulation or legal process, and only after\ncompliance with paragraph 3 below), without the prior written consent of the other party, disclose to any person the fact that the\nInformation has been exchanged between the parties, that the parties are considering the Transaction, or that discussions or\nnegotiations are taking or have taken place concerning the Transaction or any term, condition or other fact relating to the\nTransaction or such discussions or negotiations, including, without limitation, the status thereof.\n3. In the event that any party or any of their Representatives are requested pursuant to, or required by, applicable law, regulation or\nlegal process to disclose any of the Information, where legally permitted (as determined by your counsel), the disclosing party\nwill notify the other party promptly so that they may seek a protective order or other appropriate remedy or, in their sole\ndiscretion, waive compliance with the terms of this letter agreement. In the event that no such protective order or other remedy\nis obtained, or if the other party does not waive compliance with the terms of this letter agreement, the disclosing party will\nfurnish only that portion of the Information which it is advised by counsel is legally required and will exercise reasonable\nefforts to obtain reliable assurance that confidential treatment will be accorded the Information.\n4. If either party determines not to proceed with the Transaction, it will promptly inform the other party of that decision and, in\nthat case, and at any time upon the request of a party, the other party will promptly destroy all Information on any tangible\nmedium in the other party’s or its Representatives’ possession and confirm such destruction in writing to the party requesting\nsuch destruction; provided however, that the legal department of each party may maintain a copy of the Information in its\nrestricted files solely for actual or anticipated litigation, regulatory compliance or corporate record keeping purposes, and a\nparty shall not be required to destroy any computer records containing Information that have been created pursuant to automatic\nelectronic archiving and back-up procedures in the ordinary course of business, provided that, in each case, such retained\nInformation will continue to be subject to the terms of this letter agreement.\n5. Each party further agrees that they are not entitled to rely on the accuracy or completeness of the Information and that a party\nwill be entitled to rely solely on such representations and warranties as may be included in any definitive agreement with\nrespect to the Transaction, subject to such limitations and restrictions as may be contained therein.\n6. Each party is aware, and will advise their Representatives who are informed of the matters that are the subject of this letter\nagreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person\nwho has received material, non-public information from the issuer of such securities and on the communication of such\ninformation to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such\nsecurities in reliance upon such information.\n2\n7. You agree that, for a period of two years from the Effective Date of this letter agreement, neither you nor any of your affiliates\nwill, without the prior written consent of QLogic or its Board of Directors: (i) acquire, offer to acquire, or agree to acquire,\ndirectly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities\nof QLogic or any subsidiary thereof, or any assets of QLogic or any subsidiary or division thereof; (ii) make, or in any way\nparticipate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities\nExchange Commission) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting\nsecurities of QLogic; (iii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without\nconditions) any extraordinary transaction involving QLogic or its securities or assets; (iv) form, join or in any way participate in\na “group” (as defined in Section 13 (d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the\nforegoing; or (v) request QLogic or any of our Representatives, directly or indirectly, to amend or waive any provision of this\nparagraph. The provisions of this Section 7 shall be inoperative and of no force or effect if any other person or “group” publicly\nannounces an agreement or agreement in principle providing for a Combination with QLogic, or QLogic makes a public\nannouncement of its support for a tender offer for securities of QLogic that if consummated would constitute a Combination (or\nif a tender offer or exchange offer that if consummated would constitute a Combination is made for securities of QLogic and the\nQLogic Board accepts (or recommends that the shareholders accept) such offer or fails to recommend within ten days from the\ndate of such commencement of such offer that its shareholders reject such offer). A “Combination” shall mean a transaction in\nwhich (i) a person or “group” acquires, directly or indirectly, securities representing 50% or more of the voting power of the\noutstanding securities of QLogic or properties or assets constituting 50% or more of the consolidated assets of QLogic and its\nsubsidiaries or (ii) in any case not covered by (i), (A) QLogic issues securities representing 50% or more of its voting power,\nincluding in the case of (i) and (ii) by way of merger or other business combination with QLogic or any of its subsidiaries or (B)\nQLogic engages in a merger or other business combination such that the holders of voting securities of QLogic immediately\nprior to the transaction do not own more than 50% of the voting power of the securities of the resulting entity.\n8. Each party agrees that, for a period of two years from the Effective Date of this letter agreement, it will not, directly or\nindirectly, solicit for employment or hire any employee of the other party with whom it had contact or who became known to a\nparty in connection with consideration of the Transaction; provided, however, that the foregoing provision will not prevent a\nparty from employing any such person who contacts a party on his or her own initiative, contacts a party without any direct\nsolicitation by or encouragement from a party or its agents, or whose employment with the other party has ceased. The\nrestrictions of this Section 8 shall not prohibit a party from (i) conducting any general solicitations of employment directly or\nthrough any agent (including placement and recruiting agencies) that is not directed at employees of a party, (ii) allowing\nsolicitation by recruitment agencies provided that they have not received the name of a party or its employees from the other\nparty or their Representatives.\n3\n9. Each party agrees that all (i) communications regarding the Transaction, (ii) requests for additional information, facility tours or\nmanagement meetings, and (iii) discussions or questions regarding procedures with respect to the Transaction, will be first\nsubmitted or directed to Chris King or Jean Hu for QLogic or a designated person from Cavium. You acknowledge and agree\nthat (a) we and our Representatives are free to conduct the process leading up to a possible Transaction as we and our\nRepresentatives, in our sole discretion, determine (including, without limitation, by negotiating with any prospective buyer and\nentering into a preliminary or definitive agreement without prior notice to you or any other person), (b) we reserve the right, in\nour sole discretion, to change the procedures relating to our consideration of the Transaction at any time without prior notice to\nyou or any other person, to reject any and all proposals made by you or any of your Representatives with regard to the\nTransaction, and to terminate discussions and negotiations with you at any time and for any reason, and (c) unless and until a\nwritten definitive agreement concerning the Transaction has been executed, neither we nor any of our Representatives will have\nany liability to you with respect to the Transaction, any other written or oral expression with respect to the Transaction or\notherwise, except as agreed in this letter agreement. We acknowledge and agree that unless and until a written definitive\nagreement concerning the Transaction has been executed, neither you nor any of your Representatives will have any liability to\nus with respect to the Transaction, any other written or oral expression with respect to the Transaction or otherwise, except as\nagreed in this letter agreement\n10. By making Information available to the receiving party, the disclosing party is not, and shall not be deemed to be, granting\n(expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or\nother proprietary or intellectual property right.\n11. Each party acknowledges that remedies at law may be inadequate to protect a party against any actual or threatened breach of\nthis letter agreement by another party or its Representatives, and, without prejudice to any other rights and remedies otherwise\navailable, each party agrees to the granting of injunctive relief in favor of the other parties without proof of actual damages.\n12. Each party agrees that no failure or delay by the other in exercising any right, power or privilege hereunder will operate as a\nwaiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of\nany right, power or privilege hereunder.\n13. This letter agreement will be governed by and construed in accordance with the laws of the State of California applicable to\ncontracts between residents of that State and executed in and to be performed in that State.\n14. This letter agreement contains the entire agreement between you and us concerning the confidentiality of the Information and\nsupersedes any prior agreement between the parties regarding the subject matter hereof, and no modifications of this letter\nagreement or waiver of the terms and conditions hereof will be binding upon you or us, unless approved in writing by you and\nus.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter\nenclosed herewith.\n4\nVery truly yours,\nQLOGIC CORPORATION\nBy:\n/s/ Michael L. Hawkins\nName:\nMichael L. Hawkins\nTitle:\nV.P. and General Counsel\nAccepted and Agreed as of the date first written\nabove:\nCavium, Inc.\nBy:\n/s/ Lisa Sidel\nTitle:\nAssoc. General Counsel\nDate:\nApril 19, 2016\n5	EX-99.(E)(2) 2 d226816dex99e2.htm EX-99.(E)(2)\nExhibit (e)(2)\nQLOGIC CORPORATION\n26650 ALISO VIEJO PARKWAY\nALISO VIEJO, CA 92656\nApril 19, 2016\nCavium, Inc.\n2315 N. First Street\nSan Jose, California 95131\nAttention: Syed Ali, President and Chief Executive Officer\nMUTUAL CONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nIn connection with your possible interest in a merger, acquisition, or other strategic combination (the “Transaction”) involving\nQLogic Corporation (“QLogic”), Cavium, Inc. (“Cavium”) has requested that we or our representatives furnish you or your\nrepresentatives with certain information relating to QLogic or the Transaction, each of which is a “party” or collectively “parties.”\nIn addition, we have requested that you or your representatives furnish us with information relating to Cavium or the Transaction.\nAll such information (whether oral or contained on written or other tangible medium) furnished (after April 19, 2016, the “Effective\nDate” hereof) by any of us, Cavium or our respective directors, officers, employees, affiliates, representatives (including, without\nlimitation, financial advisors, attorneys and accountants) or agents (collectively, “Representatives™) to the other party or their\nrespective Representatives and all analyses, compilations, forecasts, studies or other documents prepared by a party or their\nRepresentatives in connection with a party’s review of, or interest in, the Transaction which contain or reflect any such information\nis hereinafter referred to as the “Information”. The term Information will not, however, include information which (i) is or becomes\npublicly available other than as a result of a disclosure by a receiving party in breach of this letter agreement, (ii) is or becomes\navailable to a party on a non-confidential basis from a source (other than from another party to this letter agreement or their\nRepresentatives) which, to the best of a party’s knowledge, is not prohibited from disclosing such information by a legal,\ncontractual or fiduciary obligation, or (iii) was or is independently developed by a party or their Representatives without reference\nto Information provided by a disclosing party. QLogic acknowledges that Cavium possesses significant amounts of Ethernet\ntechnology and information as a result of the Ethernet NICs that Cavium has developed and is currently selling into the hyperscale\nmarket. Each party and their Representatives, in their capacity as a provider of information, is referred to in this letter agreement as\na “disclosing party”; and each party and their Representatives, in their capacity as a recipient of information, is referred to in this\nletter agreement as a “receiving party.”\nAccordingly, each of us hereby agrees that: 1. Each party (i) will keep the Information confidential and will not (except as required by applicable law, regulation or legal\nprocess, and only after compliance with paragraph 3 below), without the prior written consent of the other party, disclose any\nInformation in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction;\nprovided, however, that each party may reveal the Information to their respective Representatives (a) who need to know the\nInformation for the purpose of evaluating the Transaction, (b) who are informed by you of the confidential nature of the\nInformation and (c) who agree to act in accordance with the confidentiality obligations of this letter agreement. Each party will\nbe responsible for any breach of this letter agreement by any of their Representatives.\nEach party and their Representatives will not (except as required by applicable law, regulation or legal process, and only after\ncompliance with paragraph 3 below), without the prior written consent of the other party, disclose to any person the fact that the\nInformation has been exchanged between the parties, that the parties are considering the Transaction, or that discussions or\nnegotiations are taking or have taken place concerning the Transaction or any term, condition or other fact relating to the\nTransaction or such discussions or negotiations, including, without limitation, the status thereof.\nIn the event that any party or any of their Representatives are requested pursuant to, or required by, applicable law, regulation or\nlegal process to disclose any of the Information, where legally permitted (as determined by your counsel), the disclosing party\nwill notify the other party promptly so that they may seek a protective order or other appropriate remedy or, in their sole\ndiscretion, waive compliance with the terms of this letter agreement. In the event that no such protective order or other remedy\nis obtained, or if the other party does not waive compliance with the terms of this letter agreement, the disclosing party will\nfurnish only that portion of the Information which it is advised by counsel is legally required and will exercise reasonable\nefforts to obtain reliable assurance that confidential treatment will be accorded the Information.\nIf either party determines not to proceed with the Transaction, it will promptly inform the other party of that decision and, in\nthat case, and at any time upon the request of a party, the other party will promptly destroy all Information on any tangible\nmedium in the other party’s or its Representatives’ possession and confirm such destruction in writing to the party requesting\nsuch destruction; provided however, that the legal department of each party may maintain a copy of the Information in its\nrestricted files solely for actual or anticipated litigation, regulatory compliance or corporate record keeping purposes, and a\nparty shall not be required to destroy any computer records containing Information that have been created pursuant to automatic\nelectronic archiving and back-up procedures in the ordinary course of business, provided that, in each case, such retained\nInformation will continue to be subject to the terms of this letter agreement.\nEach party further agrees that they are not entitled to rely on the accuracy or completeness of the Information and that a party\nwill be entitled to rely solely on such representations and warranties as may be included in any definitive agreement with\nrespect to the Transaction, subject to such limitations and restrictions as may be contained therein.\nEach party is aware, and will advise their Representatives who are informed of the matters that are the subject of this letter\nagreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person\nwho has received material, non-public information from the issuer of such securities and on the communication of such\ninformation to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such\nsecurities in reliance upon such information.\n7. You agree that, for a period of two years from the Effective Date of this letter agreement, neither you nor any of your affiliates\nwill, without the prior written consent of QLogic or its Board of Directors: (i) acquire, offer to acquire, or agree to acquire,\ndirectly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities\nof QLogic or any subsidiary thereof, or any assets of QLogic or any subsidiary or division thereof; (ii) make, or in any way\nparticipate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities\nExchange Commission) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting\nsecurities of QLogic; (iii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without\nconditions) any extraordinary transaction involving QLogic or its securities or assets; (iv) form, join or in any way participate in\na “group” (as defined in Section 13 (d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the\nforegoing; or (v) request QLogic or any of our Representatives, directly or indirectly, to amend or waive any provision of this\nparagraph. The provisions of this Section 7 shall be inoperative and of no force or effect if any other person or “group” publicly\nannounces an agreement or agreement in principle providing for a Combination with QLogic, or QLogic makes a public\nannouncement of its support for a tender offer for securities of QLogic that if consummated would constitute a Combination (or\nif a tender offer or exchange offer that if consummated would constitute a Combination is made for securities of QLogic and the\nQLogic Board accepts (or recommends that the shareholders accept) such offer or fails to recommend within ten days from the\ndate of such commencement of such offer that its shareholders reject such offer). A “Combination” shall mean a transaction in\nwhich (i) a person or “group” acquires, directly or indirectly, securities representing 50% or more of the voting power of the\noutstanding securities of QLogic or properties or assets constituting 50% or more of the consolidated assets of QLogic and its\nsubsidiaries or (ii) in any case not covered by (i), (A) QLogic issues securities representing 50% or more of its voting power,\nincluding in the case of (i) and (ii) by way of merger or other business combination with QLogic or any of its subsidiaries or (B)\nQLogic engages in a merger or other business combination such that the holders of voting securities of QLogic immediately\nprior to the transaction do not own more than 50% of the voting power of the securities of the resulting entity.\n8. Each party agrees that, for a period of two years from the Effective Date of this letter agreement, it will not, directly or\nindirectly, solicit for employment or hire any employee of the other party with whom it had contact or who became known to a\nparty in connection with consideration of the Transaction; provided, however, that the foregoing provision will not prevent a\nparty from employing any such person who contacts a party on his or her own initiative, contacts a party without any direct\nsolicitation by or encouragement from a party or its agents, or whose employment with the other party has ceased. The\nrestrictions of this Section 8 shall not prohibit a party from (i) conducting any general solicitations of employment directly or\nthrough any agent (including placement and recruiting agencies) that is not directed at employees of a party, (ii) allowing\nsolicitation by recruitment agencies provided that they have not received the name of a party or its employees from the other\nparty or their Representatives.\n10. 11. 12. 13. 14. Each party agrees that all (i) communications regarding the Transaction, (ii) requests for additional information, facility tours or\nmanagement meetings, and (iii) discussions or questions regarding procedures with respect to the Transaction, will be first\nsubmitted or directed to Chris King or Jean Hu for QLogic or a designated person from Cavium. You acknowledge and agree\nthat (a) we and our Representatives are free to conduct the process leading up to a possible Transaction as we and our\nRepresentatives, in our sole discretion, determine (including, without limitation, by negotiating with any prospective buyer and\nentering into a preliminary or definitive agreement without prior notice to you or any other person), (b) we reserve the right, in\nour sole discretion, to change the procedures relating to our consideration of the Transaction at any time without prior notice to\nyou or any other person, to reject any and all proposals made by you or any of your Representatives with regard to the\nTransaction, and to terminate discussions and negotiations with you at any time and for any reason, and (c) unless and until a\nwritten definitive agreement concerning the Transaction has been executed, neither we nor any of our Representatives will have\nany liability to you with respect to the Transaction, any other written or oral expression with respect to the Transaction or\notherwise, except as agreed in this letter agreement. We acknowledge and agree that unless and until a written definitive\nagreement concerning the Transaction has been executed, neither you nor any of your Representatives will have any liability to\nus with respect to the Transaction, any other written or oral expression with respect to the Transaction or otherwise, except as\nagreed in this letter agreement\nBy making Information available to the receiving party, the disclosing party is not, and shall not be deemed to be, granting\n(expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or\nother proprietary or intellectual property right.\nEach party acknowledges that remedies at law may be inadequate to protect a party against any actual or threatened breach of\nthis letter agreement by another party or its Representatives, and, without prejudice to any other rights and remedies otherwise\navailable, each party agrees to the granting of injunctive relief in favor of the other parties without proof of actual damages.\nEach party agrees that no failure or delay by the other in exercising any right, power or privilege hereunder will operate as a\nwaiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of\nany right, power or privilege hereunder.\nThis letter agreement will be governed by and construed in accordance with the laws of the State of California applicable to\ncontracts between residents of that State and executed in and to be performed in that State.\nThis letter agreement contains the entire agreement between you and us concerning the confidentiality of the Information and\nsupersedes any prior agreement between the parties regarding the subject matter hereof, and no modifications of this letter\nagreement or waiver of the terms and conditions hereof will be binding upon you or us, unless approved in writing by you and\nus.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter enclosed herewith.\fAccepted and Agreed as of the date first written\nabove:\nCavium, Inc.\nBy: /s/ Lisa Sidel Title: Assoc. General Counsel Date: April 19, 2016 Very truly yours,\nQLOGIC CORPORATION\nBy: /s/ Michael L. Hawkins\nName: Michael L. Hawkins\nTitle: V.P. and General Counsel	EX-99.(E)(2) 2 d226816dex99e2.htm EX-99.(E)(2)\nExhibit (e)(2)\nQLOGIC CORPORATION\n26650 ALISO VIEJO PARKWAY\nALISO VIEJO, CA 92656\nApril 19, 2016\nCavium, Inc.\n2315 N. First Street\nSan Jose, California 95131\nAttention: Syed Ali, President and Chief Executive Officer\nMUTUAL CONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nIn connection with your possible interest in a merger, acquisition, or other strategic combination (the "Transaction") involving\nQLogic Corporation ("QLogic"), Cavium, Inc. ("Cavium") has requested that we or our representatives furnish you or your\nrepresentatives with certain information relating to QLogic or the Transaction, each of which is a "party" or collectively "parties."\nIn addition, we have requested that you or your representatives furnish us with information relating to Cavium or the Transaction.\nAll such information (whether oral or contained on written or other tangible medium) furnished (after April 19, 2016, the "Effective\nDate" hereof) by any of us, Cavium or our respective directors, officers, employees, affiliates, representatives (including, without\nlimitation, financial advisors, attorneys and accountants) or agents (collectively, "Representatives") to the other party or their\nrespective Representatives and all analyses, compilations, forecasts, studies or other documents prepared by a party or their\nRepresentatives in connection with a party's review of, or interest in, the Transaction which contain or reflect any such information\nis hereinafter referred to as the "Information". The term Information will not, however, include information which (i) is or becomes\npublicly available other than as a result of a disclosure by a receiving party in breach of this letter agreement, (ii) is or becomes\navailable to a party on a non-confidential basis from a source (other than from another party to this letter agreement or their\nRepresentatives) which, to the best of a party's knowledge, is not prohibited from disclosing such information by a legal,\ncontractual or fiduciary obligation, or (iii) was or is independently developed by a party or their Representatives without reference\nto Information provided by a disclosing party. QLogic acknowledges that Cavium possesses significant amounts of Ethernet\ntechnology and information as a result of the Ethernet NICs that Cavium has developed and is currently selling into the hyperscale\nmarket. Each party and their Representatives, in their capacity as a provider of information, is referred to in this letter agreement as\na "disclosing party"; and each party and their Representatives, in their capacity as a recipient of information, is referred to in this\nletter agreement as a "receiving party."\n1\nAccordingly, each of us hereby agrees that:\n1. Each party (i) will keep the Information confidential and will not (except as required by applicable law, regulation or legal\nprocess, and only after compliance with paragraph 3 below), without the prior written consent of the other party, disclose any\nInformation in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction;\nprovided, however, that each party may reveal the Information to their respective Representatives (a) who need to know the\nInformation for the purpose of evaluating the Transaction, (b) who are informed by you of the confidential nature of the\nInformation and (c) who agree to act in accordance with the confidentiality obligations of this letter agreement. Each party will\nbe responsible for any breach of this letter agreement by any of their Representatives.\n2.\nEach\nparty\nand\ntheir\nRepresentatives\nwill\nnot\n(except\nas\nrequired\nby\napplicable\nlaw,\nregulation\nor\nlegal\nprocess,\nand\nonly\nafter\ncompliance with paragraph 3 below), without the prior written consent of the other party, disclose to any person the fact that the\nInformation has been exchanged between the parties, that the parties are considering the Transaction, or that discussions or\nnegotiations are taking or have taken place concerning the Transaction or any term, condition or other fact relating to the\nTransaction or such discussions or negotiations, including, without limitation, the status thereof.\n3.\nIn the event that any party or any of their Representatives are requested pursuant to, or required by, applicable law, regulation or\nlegal process to disclose any of the Information, where legally permitted (as determined by your counsel), the disclosing party\nwill\nnotify\nthe\nother\nparty\npromptly\nso\nthat\nthey\nmay\nseek\na\nprotective\norder\nor\nother\nappropriate\nremedy\nor,\nin\ntheir\nsole\ndiscretion, waive compliance with the terms of this letter agreement. In the event that no such protective order or other remedy\nis obtained, or if the other party does not waive compliance with the terms of this letter agreement, the disclosing party will\nfurnish only that portion of the Information which it is advised by counsel is legally required and will exercise reasonable\nefforts to obtain reliable assurance that confidential treatment will be accorded the Information.\n4.\nIf either party determines not to proceed with the Transaction, it will promptly inform the other party of that decision and, in\nthat case, and at any time upon the request of a party, the other party will promptly destroy all Information on any tangible\nmedium in the other party's or its Representatives' possession and confirm such destruction in writing to the party requesting\nsuch destruction; provided however, that the legal department of each party may maintain a copy of the Information in its\nrestricted files solely for actual or anticipated litigation, regulatory compliance or corporate record keeping purposes, and a\nparty shall not be required to destroy any computer records containing Information that have been created pursuant to automatic\nelectronic archiving and back-up procedures in the ordinary course of business, provided that, in each case, such retained\nInformation will continue to be subject to the terms of this letter agreement.\n5.\nEach party further agrees that they are not entitled to rely on the accuracy or completeness of the Information and that a party\nwill be entitled to rely solely on such representations and warranties as may be included in any definitive agreement with\nrespect to the Transaction, subject to such limitations and restrictions as may be contained therein.\n6.\nEach party is aware, and will advise their Representatives who are informed of the matters that are the subject of this letter\nagreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person\nwho has received material, non-public information from the issuer of such securities and on the communication of such\ninformation to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such\nsecurities in reliance upon such information.\n2\n7.\nYou agree that, for a period of two years from the Effective Date of this letter agreement, neither you nor any of your affiliates\nwill, without the prior written consent of QLogic or its Board of Directors: (i) acquire, offer to acquire, or agree to acquire,\ndirectly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities\nof QLogic or any subsidiary thereof, or any assets of QLogic or any subsidiary or division thereof; (ii) make, or in any way\nparticipate in, directly or indirectly, any "solicitation" of "proxies" (as such terms are used in the rules of the Securities\nExchange Commission) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting\nsecurities of QLogic; (iii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without\nconditions)\nany\nextraordinary\ntransaction\ninvolving\nQLogic\nor\nits\nsecurities\nor\nassets;\n(iv)\nform,\njoin\nor\nin\nany\nway\nparticipate\nin\na\n"group" (as defined in Section 13 (d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the\nforegoing; or (v) request QLogic or any of our Representatives, directly or indirectly, to amend or waive any provision of this\nparagraph. The provisions of this Section 7 shall be inoperative and of no force or effect if any other person or "group" publicly\nannounces an agreement or agreement in principle providing for a Combination with QLogic, or QLogic makes a public\nannouncement of its support for a tender offer for securities of QLogic that if consummated would constitute a Combination (or\nif a tender offer or exchange offer that if consummated would constitute a Combination is made for securities of QLogic and\nthe\nQLogic Board accepts (or recommends that the shareholders accept) such offer or fails to recommend within ten days from the\ndate\nof\nsuch\ncommencement\nof\nsuch\noffer\nthat\nits\nshareholders\nreject\nsuch\noffer).\nA\n"Combination"\nshall\nmean\na\ntransaction\nin\nwhich (i) a person or "group" acquires, directly or indirectly, securities representing 50% or more of the voting power of the\noutstanding securities of QLogic or properties or assets constituting 50% or more of the consolidated assets of QLogic and its\nsubsidiaries\nor\n(ii)\nin\nany\ncase\nnot\ncovered\nby\n(i),\n(A)\nQLogic\nissues\nsecurities\nrepresenting\n50%\nor\nmore\nof\nits\nvoting\npower,\nincluding in the case of (i) and (ii) by way of merger or other business combination with QLogic or any of its subsidiaries or (B)\nQLogic engages in a merger or other business combination such that the holders of voting securities of QLogic immediately\nprior to the transaction do not own more than 50% of the voting power of the securities of the resulting entity.\n8. Each party agrees that, for a period of two years from the Effective Date of this letter agreement, it will not, directly or\nindirectly, solicit for employment or hire any employee of the other party with whom it had contact or who became known to a\nparty in connection with consideration of the Transaction; provided, however, that the foregoing provision will not prevent a\nparty\nfrom\nemploying\nany\nsuch\nperson\nwho\ncontacts\na\nparty\non\nhis\nor\nher\nown\ninitiative,\ncontacts\na\nparty\nwithout\nany\ndirect\nsolicitation by or encouragement from a party or its agents, or whose employment with the other party has ceased. The\nrestrictions of this Section 8 shall not prohibit a party from (i) conducting any general solicitations of employment directly or\nthrough\nany\nagent\n(including\nplacement\nand\nrecruiting\nagencies)\nthat\nis\nnot\ndirected\nat\nemployees\nof\na\nparty,\n(ii)\nallowing\nsolicitation by recruitment agencies provided that they have not received the name of a party or its employees from the other\nparty or their Representatives.\n3\n9. Each party agrees that all (i) communications regarding the Transaction, (ii) requests for additional information, facility tours or\nmanagement meetings, and (iii) discussions or questions regarding procedures with respect to the Transaction, will be first\nsubmitted or directed to Chris King or Jean Hu for QLogic or a designated person from Cavium. You acknowledge and agree\nthat (a) we and our Representatives are free to conduct the process leading up to a possible Transaction as we and our\nRepresentatives, in our sole discretion, determine (including, without limitation, by negotiating with any prospective buyer and\nentering into a preliminary or definitive agreement without prior notice to you or any other person), (b) we reserve the right, in\nour sole discretion, to change the procedures relating to our consideration of the Transaction at any time without prior notice to\nyou\nor\nany\nother\nperson,\nto\nreject\nany\nand\nall\nproposals\nmade\nby\nyou\nor\nany\nof\nyour\nRepresentatives\nwith\nregard\nto\nthe\nTransaction, and to terminate discussions and negotiations with you at any time and for any reason, and (c) unless and until a\nwritten definitive agreement concerning the Transaction has been executed, neither we nor any of our Representatives will have\nany liability to you with respect to the Transaction, any other written or oral expression with respect to the Transaction or\notherwise, except as agreed in this letter agreement. We acknowledge and agree that unless and until a written definitive\nagreement concerning the Transaction has been executed, neither you nor any of your Representatives will have any liability to\nus\nwith respect to the Transaction, any other written or oral expression with respect to the Transaction or otherwise, except as\nagreed in this letter agreement\n10. By making Information available to the receiving party, the disclosing party is not, and shall not be deemed to be, granting\n(expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or\nother proprietary or intellectual property right.\n11. Each party acknowledges that remedies at law may be inadequate to protect a party against any actual or threatened breach of\nthis letter agreement by another party or its Representatives, and, without prejudice to any other rights and remedies otherwise\navailable, each party agrees to the granting of injunctive relief in favor of the other parties without proof of actual damages.\n12. Each party agrees that no failure or delay by the other in exercising any right, power or privilege hereunder will operate as\na\nwaiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of\nany right, power or privilege hereunder.\n13. This letter agreement will be governed by and construed in accordance with the laws of the State of California applicable to\ncontracts between residents of that State and executed in and to be performed in that State.\n14. This letter agreement contains the entire agreement between you and us concerning the confidentiality of the Information and\nsupersedes any prior agreement between the parties regarding the subject matter hereof, and no modifications of this letter\nagreement or waiver of the terms and conditions hereof will be binding upon you or us, unless approved in writing by you and\nus.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter\nenclosed herewith.\n4\nVery truly yours,\nQLOGIC CORPORATION\nBy:\n/s/ Michael L. Hawkins\nName:\nMichael L. Hawkins\nTitle:\nV.P. and General Counsel\nAccepted and Agreed as of the date first written\nabove:\nCavium, Inc\nBy:\n/s/ Lisa Sidel\nTitle:\nAssoc. General Counsel\nDate:\nApril 19, 2016\n5	EX-99.(E)(2) 2 d226816dex99e2.htm EX-99.(E)(2)\nExhibit (e)(2)\nQLOGIC CORPORATION\n26650 ALISO VIEJO PARKWAY\nALISO VIEJO, CA 92656\nApril 19, 2016\nCavium, Inc.\n2315 N. First Street\nSan Jose, California 95131\nAttention: Syed Ali, President and Chief Executive Officer\nMUTUAL CONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nIn connection with your possible interest in a merger, acquisition, or other strategic combination (the “Transaction”) involving\nQLogic Corporation (“QLogic”), Cavium, Inc. (“Cavium”) has requested that we or our representatives furnish you or your\nrepresentatives with certain information relating to QLogic or the Transaction, each of which is a “party” or collectively “parties.”\nIn addition, we have requested that you or your representatives furnish us with information relating to Cavium or the Transaction.\nAll such information (whether oral or contained on written or other tangible medium) furnished (after April 19, 2016, the “Effective\nDate” hereof) by any of us, Cavium or our respective directors, officers, employees, affiliates, representatives (including, without\nlimitation, financial advisors, attorneys and accountants) or agents (collectively, “Representatives”) to the other party or their\nrespective Representatives and all analyses, compilations, forecasts, studies or other documents prepared by a party or their\nRepresentatives in connection with a party’s review of, or interest in, the Transaction which contain or reflect any such information\nis hereinafter referred to as the “Information”. The term Information will not, however, include information which (i) is or becomes\npublicly available other than as a result of a disclosure by a receiving party in breach of this letter agreement, (ii) is or becomes\navailable to a party on a non-confidential basis from a source (other than from another party to this letter agreement or their\nRepresentatives) which, to the best of a party’s knowledge, is not prohibited from disclosing such information by a legal,\ncontractual or fiduciary obligation, or (iii) was or is independently developed by a party or their Representatives without reference\nto Information provided by a disclosing party. QLogic acknowledges that Cavium possesses significant amounts of Ethernet\ntechnology and information as a result of the Ethernet NICs that Cavium has developed and is currently selling into the hyperscale\nmarket. Each party and their Representatives, in their capacity as a provider of information, is referred to in this letter agreement as\na “disclosing party”; and each party and their Representatives, in their capacity as a recipient of information, is referred to in this\nletter agreement as a “receiving party.”\n1\nAccordingly, each of us hereby agrees that:\n1. Each party (i) will keep the Information confidential and will not (except as required by applicable law, regulation or legal\nprocess, and only after compliance with paragraph 3 below), without the prior written consent of the other party, disclose any\nInformation in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction;\nprovided, however, that each party may reveal the Information to their respective Representatives (a) who need to know the\nInformation for the purpose of evaluating the Transaction, (b) who are informed by you of the confidential nature of the\nInformation and (c) who agree to act in accordance with the confidentiality obligations of this letter agreement. Each party will\nbe responsible for any breach of this letter agreement by any of their Representatives.\n2. Each party and their Representatives will not (except as required by applicable law, regulation or legal process, and only after\ncompliance with paragraph 3 below), without the prior written consent of the other party, disclose to any person the fact that the\nInformation has been exchanged between the parties, that the parties are considering the Transaction, or that discussions or\nnegotiations are taking or have taken place concerning the Transaction or any term, condition or other fact relating to the\nTransaction or such discussions or negotiations, including, without limitation, the status thereof.\n3. In the event that any party or any of their Representatives are requested pursuant to, or required by, applicable law, regulation or\nlegal process to disclose any of the Information, where legally permitted (as determined by your counsel), the disclosing party\nwill notify the other party promptly so that they may seek a protective order or other appropriate remedy or, in their sole\ndiscretion, waive compliance with the terms of this letter agreement. In the event that no such protective order or other remedy\nis obtained, or if the other party does not waive compliance with the terms of this letter agreement, the disclosing party will\nfurnish only that portion of the Information which it is advised by counsel is legally required and will exercise reasonable\nefforts to obtain reliable assurance that confidential treatment will be accorded the Information.\n4. If either party determines not to proceed with the Transaction, it will promptly inform the other party of that decision and, in\nthat case, and at any time upon the request of a party, the other party will promptly destroy all Information on any tangible\nmedium in the other party’s or its Representatives’ possession and confirm such destruction in writing to the party requesting\nsuch destruction; provided however, that the legal department of each party may maintain a copy of the Information in its\nrestricted files solely for actual or anticipated litigation, regulatory compliance or corporate record keeping purposes, and a\nparty shall not be required to destroy any computer records containing Information that have been created pursuant to automatic\nelectronic archiving and back-up procedures in the ordinary course of business, provided that, in each case, such retained\nInformation will continue to be subject to the terms of this letter agreement.\n5. Each party further agrees that they are not entitled to rely on the accuracy or completeness of the Information and that a party\nwill be entitled to rely solely on such representations and warranties as may be included in any definitive agreement with\nrespect to the Transaction, subject to such limitations and restrictions as may be contained therein.\n6. Each party is aware, and will advise their Representatives who are informed of the matters that are the subject of this letter\nagreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person\nwho has received material, non-public information from the issuer of such securities and on the communication of such\ninformation to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such\nsecurities in reliance upon such information.\n2\n7. You agree that, for a period of two years from the Effective Date of this letter agreement, neither you nor any of your affiliates\nwill, without the prior written consent of QLogic or its Board of Directors: (i) acquire, offer to acquire, or agree to acquire,\ndirectly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities\nof QLogic or any subsidiary thereof, or any assets of QLogic or any subsidiary or division thereof; (ii) make, or in any way\nparticipate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities\nExchange Commission) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting\nsecurities of QLogic; (iii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without\nconditions) any extraordinary transaction involving QLogic or its securities or assets; (iv) form, join or in any way participate in\na “group” (as defined in Section 13 (d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the\nforegoing; or (v) request QLogic or any of our Representatives, directly or indirectly, to amend or waive any provision of this\nparagraph. The provisions of this Section 7 shall be inoperative and of no force or effect if any other person or “group” publicly\nannounces an agreement or agreement in principle providing for a Combination with QLogic, or QLogic makes a public\nannouncement of its support for a tender offer for securities of QLogic that if consummated would constitute a Combination (or\nif a tender offer or exchange offer that if consummated would constitute a Combination is made for securities of QLogic and the\nQLogic Board accepts (or recommends that the shareholders accept) such offer or fails to recommend within ten days from the\ndate of such commencement of such offer that its shareholders reject such offer). A “Combination” shall mean a transaction in\nwhich (i) a person or “group” acquires, directly or indirectly, securities representing 50% or more of the voting power of the\noutstanding securities of QLogic or properties or assets constituting 50% or more of the consolidated assets of QLogic and its\nsubsidiaries or (ii) in any case not covered by (i), (A) QLogic issues securities representing 50% or more of its voting power,\nincluding in the case of (i) and (ii) by way of merger or other business combination with QLogic or any of its subsidiaries or (B)\nQLogic engages in a merger or other business combination such that the holders of voting securities of QLogic immediately\nprior to the transaction do not own more than 50% of the voting power of the securities of the resulting entity.\n8. Each party agrees that, for a period of two years from the Effective Date of this letter agreement, it will not, directly or\nindirectly, solicit for employment or hire any employee of the other party with whom it had contact or who became known to a\nparty in connection with consideration of the Transaction; provided, however, that the foregoing provision will not prevent a\nparty from employing any such person who contacts a party on his or her own initiative, contacts a party without any direct\nsolicitation by or encouragement from a party or its agents, or whose employment with the other party has ceased. The\nrestrictions of this Section 8 shall not prohibit a party from (i) conducting any general solicitations of employment directly or\nthrough any agent (including placement and recruiting agencies) that is not directed at employees of a party, (ii) allowing\nsolicitation by recruitment agencies provided that they have not received the name of a party or its employees from the other\nparty or their Representatives.\n3\n9. Each party agrees that all (i) communications regarding the Transaction, (ii) requests for additional information, facility tours or\nmanagement meetings, and (iii) discussions or questions regarding procedures with respect to the Transaction, will be first\nsubmitted or directed to Chris King or Jean Hu for QLogic or a designated person from Cavium. You acknowledge and agree\nthat (a) we and our Representatives are free to conduct the process leading up to a possible Transaction as we and our\nRepresentatives, in our sole discretion, determine (including, without limitation, by negotiating with any prospective buyer and\nentering into a preliminary or definitive agreement without prior notice to you or any other person), (b) we reserve the right, in\nour sole discretion, to change the procedures relating to our consideration of the Transaction at any time without prior notice to\nyou or any other person, to reject any and all proposals made by you or any of your Representatives with regard to the\nTransaction, and to terminate discussions and negotiations with you at any time and for any reason, and (c) unless and until a\nwritten definitive agreement concerning the Transaction has been executed, neither we nor any of our Representatives will have\nany liability to you with respect to the Transaction, any other written or oral expression with respect to the Transaction or\notherwise, except as agreed in this letter agreement. We acknowledge and agree that unless and until a written definitive\nagreement concerning the Transaction has been executed, neither you nor any of your Representatives will have any liability to\nus with respect to the Transaction, any other written or oral expression with respect to the Transaction or otherwise, except as\nagreed in this letter agreement\n10. By making Information available to the receiving party, the disclosing party is not, and shall not be deemed to be, granting\n(expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or\nother proprietary or intellectual property right.\n11. Each party acknowledges that remedies at law may be inadequate to protect a party against any actual or threatened breach of\nthis letter agreement by another party or its Representatives, and, without prejudice to any other rights and remedies otherwise\navailable, each party agrees to the granting of injunctive relief in favor of the other parties without proof of actual damages.\n12. Each party agrees that no failure or delay by the other in exercising any right, power or privilege hereunder will operate as a\nwaiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of\nany right, power or privilege hereunder.\n13. This letter agreement will be governed by and construed in accordance with the laws of the State of California applicable to\ncontracts between residents of that State and executed in and to be performed in that State.\n14. This letter agreement contains the entire agreement between you and us concerning the confidentiality of the Information and\nsupersedes any prior agreement between the parties regarding the subject matter hereof, and no modifications of this letter\nagreement or waiver of the terms and conditions hereof will be binding upon you or us, unless approved in writing by you and\nus.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter\nenclosed herewith.\n4\nVery truly yours,\nQLOGIC CORPORATION\nBy:\n/s/ Michael L. Hawkins\nName:\nMichael L. Hawkins\nTitle:\nV.P. and General Counsel\nAccepted and Agreed as of the date first written\nabove:\nCavium, Inc.\nBy:\n/s/ Lisa Sidel\nTitle:\nAssoc. General Counsel\nDate:\nApril 19, 2016\n5
12bfa941d21dca1f147cca6423c4e80a.pdf	effective_date jurisdiction party term	EX-3 4 d380892dex3.htm CONFIDENTIALITY AGREEMENT\nExhibit 3\nLOGO\nWells Fargo Securities, LLC\n301 South College Street\nCharlotte, NC 28288-8905\nFebruary 28, 2011\nABC-Mart, Inc.\nc/o Barclays Capital\n745 Seventh Avenue\nNew York, NY 10019\nAttention:\nAri D. Berger, Managing Director\nRetail & Apparel Investment Banking Group\nCONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nYou have expressed interest in pursuing the acquisition of LaCrosse Footwear, Inc. (the “Company”), which is represented by Wells Fargo\nSecurities LLC (“Wells Fargo”), through the purchase of all the capital stock of the Company (the “Transaction”). You have requested that the\nCompany or its representatives furnish you or your representatives with certain information relating to the Company or the Transaction. All such\ninformation (whether written or oral) furnished (whether before or after the date hereof) by the Company or its directors, officers, employees,\naffiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents (collectively, “the Company\nRepresentatives”) to you or your directors, officers, employees, affiliates, representatives (including, without limitation, financial advisors,\nattorneys and accountants) or agents (collectively, “your Representatives”) and all analyses, compilations, forecasts, studies or other documents\nprepared by you or your Representatives in connection with your or their review of, or your interest in, the Transaction which contain or reflect any\nsuch information is hereinafter referred to as the “Information.” The term Information will not, however, include information which (i) is or\nbecomes publicly available other than as a result of a disclosure by you or your Representatives in violation of this letter agreement or other\nobligation of confidentiality, (ii) is already known to you at the time of its receipt form the Company or the Company Representatives, (iii) is or\nbecomes available to you on a nonconfidential basis from a source (other than the Company or its Representatives) not known by you to be\nprohibited from disclosing such information to you by a legal, contractual or fiduciary obligation, or (iv) has been independently developed by you\nor any of your Representatives without reference to any of the Information.\nLOGO\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 2\nAccordingly, you hereby agree that:\n1. You and your Representatives (i) will keep the Information confidential and will not (except as required by applicable law, regulation or legal\nprocess, and only after compliance with paragraph 3 below), without the Company’s prior written consent, disclose any Information in any\nmanner whatsoever, in whole or in part, (ii) will not use any Information other than in connection with the Transaction; provided, however, that\nyou may reveal the Information or portions thereof to your Representatives (a) who need to know the Information for the purpose of evaluating\nthe Transaction, (b) who are informed by you of the confidential nature of the Information and (c) who are directed by you to treat the\nInformation in a manner consistent with the terms of this letter agreement. You will be responsible for any breach of this letter agreement by\nany of your Representatives. You and the Company shall be permitted to disclose the tax treatment and tax structure of the Transaction\n(including any materials, opinions or analyses relating to such tax treatment or tax structure, but without disclosure of identifying information\nor, except to the extent relating to such tax structure or tax treatment, any nonpublic commercial or financial information) on and after the\nearliest to occur of the date of (i) public announcement of discussions relating to the Transaction, (ii) public announcement of the Transaction\nor (iii) execution of a definitive agreement (with or without conditions) to enter into the Transaction; provided, however, that if the Transaction\nis not consummated for any reason, the provisions of this sentence shall cease to apply.\n2. You and your Representatives will not (except as required by applicable law, regulation or legal process, and only after compliance with\nparagraph 3 below), without the Company’s prior written consent, disclose to any person the fact that the Information exists or has been made\navailable, that you are considering the Transaction involving the Company, or that discussions or negotiations are taking or have taken place\nconcerning the Transaction or involving the Company or any term, condition or other fact relating to the Transaction or such discussions or\nnegotiations, including, without limitation, the status thereof or the subject matter of this letter agreement.\n3. In the event that you or any of your Representatives are requested pursuant to, or required by, applicable law, regulation or legal process to\ndisclose any of the Information, you will notify the Company promptly (unless prohibited by law) so that the Company may seek an\nappropriate protective order or other appropriate remedy or, in the Company’s sole discretion, waive compliance with the terms of this letter\nagreement (and if the Company seeks such an order, you will provide such cooperation as the Company shall reasonably request). In the event\nthat no such protective order or other remedy is obtained or that the Company waives compliance with the terms of this letter agreement and\nthat you or any of your Representatives are nonetheless legally compelled to disclose such Information, you or your Representatives, as the\ncase may be, will furnish only that portion of the Information which you are advised by counsel is legally required and will give the Company\nwritten notice (unless prohibited by law) of the Information to be disclosed as far in advance as practicable and exercise all reasonable efforts\nto obtain reliable assurance that confidential treatment will be accorded the Information.\n4. If you determine not to proceed with the Transaction, you will promptly inform Wells Fargo, of that decision and, in that case, and at any time\nupon the request of the Company or any of the Company Representatives, you will (i) promptly deliver to the Company at your own expense\nor, at the Company’s written request, destroy all copies, whether stored electronically or otherwise, of the written Information in your or your\nRepresentatives’ possession that was delivered to you by the Company or on its behalf and (ii) promptly destroy all analyses, compilations,\nsummaries, studies and other material prepared by you or your Representatives and based in whole or in part on, or otherwise containing or\nreflecting any of, the Information. You will confirm any such destruction to the Company in writing. Any orally disclosed Information will\ncontinue to be subject to the terms of this letter agreement. Notwithstanding the foregoing, and for the avoidance of doubt, neither you nor any\nof your Representatives shall be under any obligation to return or destroy any Information that you or any of your Representatives is required\nto retain pursuant to any laws or regulations, or pursuant to any internal rules required by laws or regulations, and you may retain one copy of\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 3\nthe information in a form acceptable to you at the office of your general counsel solely for the purpose of preserving a record of the\nInformation you or any of your representatives has received and of using such Information to defend yourself or any of your Representatives\nagainst any claims, lawsuit or other administrative or legal action, which may be threatened or instituted in connection with the Information.\n5. You acknowledge that neither the Company, nor Wells Fargo, nor any of the Company’s other Representatives, nor any of their respective\nofficers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the\n“Exchange Act”), make any representation or warranty, express or implied, as to the accuracy or completeness of the Information, and you\nagree that no such person will have any liability relating to the Information or for any errors therein or omissions therefrom. You further agree\nthat you are not entitled to rely on the accuracy or completeness of the Information and that you will be entitled to rely solely on such\nrepresentations and warranties as may be included in any definitive agreement with respect to the Transaction, subject to such limitations and\nrestrictions as may be contained therein.\n6. You hereby acknowledge that you are aware, and that you will advise your Representatives who are informed of the matters that are the subject\nof this letter agreement, that the United States securities laws prohibit any person who has received from the issuer of such securities material,\nnonpublic information concerning the matters that are the subject of this letter agreement from purchasing or selling securities of such issuer or\nfrom communicating such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell\nsuch securities in reliance upon such information. You hereby represent that, as of the date hereof, you and your affiliates and associates (as\nsuch terms are defined in Rule 12b-2 of the Exchange Act), beneficially own in the aggregate less than 1.00% of the outstanding voting\nsecurities of the Company.\n7. Except as expressly contemplated thereby, your obligations under this letter agreement shall expire (i) upon the execution of a definitive\nagreement between you and the Company with respect to the Transaction or (ii) if such definitive agreement is not executed, three years from\nthe date of this letter agreement, as the case may be.\n8. You agree that, for a period of two years from the date of this letter agreement, neither you nor any of your affiliates (as such term is defined in\nRule 12b-2 of the Exchange Act) will (and neither you nor they will assist or encourage others to), without the prior written consent of the\nCompany or its Board of Directors: (i) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, directly or indirectly, by\npurchase or otherwise, ownership (including, without limitation, beneficial ownership as defined in Rule 13d-3 of the Exchange Act) of any\nvoting securities or direct or indirect rights or options to acquire any voting securities of the Company or any subsidiary thereof, or of any\nsuccessor to or person in control of the Company, any of the assets or businesses of the Company or any subsidiary or division thereof or of\nany such successor or controlling person or any bank debt, claims or other obligations of the Company or any rights or options to acquire\n(other than those currently owned) such ownership (including from a third party); (ii) enter into any contract, arrangement, understanding, plan\nor commitment in respect of any Derivative Securities (iii) seek or propose to influence or control the management or policies of the Company\nor to obtain representation on the Company’s Board of Directors, or solicit, or participate in the solicitation of, any proxies or consents with\nrespect to any securities of the Company, or make any public announcement with respect to any of the foregoing or request permission to do\nany of the foregoing; (iv) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any\nextraordinary transaction involving the Company or its securities or assets; or (v) enter into any discussions, negotiations, arrangements or\nunderstandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way participate in a “group” (as\ndefined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing. You will promptly\nadvise the Company of any inquiry or proposal made to you with respect to any of the foregoing unless you are prohibited from doing so in\nconnection with any existing confidentiality obligations you may have.\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 4\nFor the purposes for this letter agreement, “Derivative Securities” means any securities that are the subject of any derivative or other\ntransaction entered into by any person, which gives such person the economic equivalent of ownership of an amount of such securities due to\nthe fact that the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether\n(i) such derivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is\ncapable of being or required to be settled by the payment of cash or through the delivery of such securities.\n9. You agree that, for a period of three years from the date of this letter agreement, you will not, without the prior written consent of Company,\ndirectly or indirectly, solicit for employment or hire any person who is now an employee of the Company; provided, however, that the\nforegoing provision will not prevent you from employing any such person who contacts you on his or her own initiative without any direct or\nindirect solicitation by or encouragement from you. You also agree that until the earlier of (a) the consummation of a Transaction between the\nCompany and you or (b) three years from the date of this letter agreement, you will not, without the prior written consent of the Company,\n(i) initiate or maintain contact (except in the ordinary course of business) with any officer, director, employee, supplier, distributor, broker or\ncustomer of the Company for the purposes of obtaining information regarding the Company’s operations, assets, prospects or finances or\n(ii) solicit or contract with any of the Company’s potential or actual suppliers, customers, distributors or brokers to the extent identified in the\nInformation except such that have entered into contracts or transactions with you or have engaged in negotiations with you in respect of\npotential contracts or transactions prior to the time of your receipt of such Information.\n10. You agree that all (i) communications regarding the Transaction, (ii) requests for additional information, facility tours or management\nmeetings, and (iii) discussions or questions regarding procedures with respect to the Transaction, will be first submitted or directed to Wells\nFargo and not to the Company. You acknowledge and agree that (a) the Company and the Company Representatives are free to conduct the\nprocess relating to a possible Transaction as the Company and the Company Representatives, in their sole discretion, determine (including,\nwithout limitation, conduct of the due diligence process, negotiating with any prospective purchaser and entering into a preliminary or\ndefinitive agreement to effect a Transaction without prior notice to you or any other person), (b) the Company reserves the right, in its sole\ndiscretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to you or any other person,\nto reject any and all proposals made by you or any of your Representatives with respect to the Transaction and to terminate discussions and\nnegotiations with you at any time and for any reason, and (c) unless and until a written definitive agreement concerning the Transaction has\nbeen executed, neither the Company nor any of the Company Representatives will have any liability to you with respect to the Transaction or\nany obligation of any kind whatsoever with respect to a Transaction, whether by virtue of this letter agreement, any other written or oral\nexpression with respect to the Transaction or otherwise.\n11. The provisions of paragraph 8 hereof shall be inoperative and of no force or effect if, from and after the date hereof: (a) any person or group\nshall have acquired or entered into a binding definitive agreement that has been approved by the Board of Directors of the Company (or any\nduly constituted committee thereof composed entirely of independent directors) to acquire more than 50% of the Company or assets of the\nCompany or its subsidiaries representing more than 50% of the consolidated earnings power of the Company and its subsidiaries, taken as a\nwhole, (b) any person commences a tender or exchange offer which, if consummated, would result in such person’s acquisition of beneficial\nownership of more than 50% of the outstanding voting securities of the Company, and in connection therewith, the Company files with the\nSEC a Schedule 14D- 9 with respect to such offer; or (c) the Company’s Board of Directors (or any duly constituted committee thereof\ncomposed entirely of independent directors) shall have determined in good faith, after consultation with outside legal counsel, that the failure\nto waive, limit, amend, or otherwise modify this agreement would be reasonably likely to be inconsistent with the fiduciary duties of the\nCompany’s directors under applicable law; provided, however, that with respect to clauses (a), (b) and (c) of this sentence, you shall not have\nsolicited,\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 5\ninitiated, encouraged, or taken any action to facilitate or assist or participate with any such other person or group in connection with any of the\ntransactions contemplated by clauses (a), (b) and (c) of this sentence.\n12. You acknowledge that remedies at law may be inadequate to protect the Company against any actual or threatened breach of this letter\nagreement by the Company or the Company’s Representatives, and, without prejudice to any other rights and remedies otherwise available to\nthe Company, you agree to the granting of specific performance and injunctive or other equitable relief in the Company’s favor without proof\nof actual damages and you further agree to waive, and to use all reasonable efforts to cause your Representatives to waive, any requirement for\nthe securing or posting of any bond in connection with any such remedy. In the event of litigation relating to this letter agreement, if a court of\ncompetent jurisdiction determines in a final, nonappealable order that this letter agreement has been breached by either party or its\nRepresentatives, then the breaching party will reimburse the other party for its costs and expenses (including, without limitation, reasonable\nlegal fees and expenses) incurred in connection with all such litigation.\n13. You agree that no failure or delay by the Company or any of the Company Representatives in exercising any right hereunder will operate as a\nwaiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right\nhereunder.\n14. This letter agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between\nresidents of Delaware and executed in and to be performed entirely within Delaware, without giving effect to any choice or conflict of law\nprovision or rule (whether of Oregon, Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other\nthan those of Delaware. Any legal suit, action or proceeding arising out of, based upon or relating to this Agreement shall be instituted in the\nfederal courts of the United States of America or the courts of the State of Oregon in each case located in the City of Portland and/or the\nCounty of Multnomah, Oregon, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or\nproceeding. Service of process, summons, notice or other document by mail shall be effective service of process for any suit, action or other\nproceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit,\naction or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or\nproceeding brought in any such court has been brought in an inconvenient forum.\n15. This letter agreement constitutes a binding agreement between you and the Company. No person other than you and the Company is intended\nto be a beneficiary of this letter agreement, and no person other than you and the Company shall have any right to enforce any term of this\nletter agreement.\n16. This letter agreement contains the entire agreement between you and the Company concerning the confidentiality of the Information, and no\nprovision of this letter agreement may be waived, amended or modified, in whole or in part, nor any consent given, unless approved in writing\nby a duly authorized representative of the Company, which writing specifically refers to this letter agreement and the provision so amended or\nmodified or for which such waiver or consent is given. In the event that any provision of this letter agreement is deemed invalid, illegal or\nunenforceable, the validity, legality and enforceability of the remaining provisions of this letter agreement will not in any way be affected or\nimpaired thereby.\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 6\nPlease confirm your agreement with the foregoing by signing and returning a duplicate copy of this letter agreement, at which time this letter\nagreement shall become a binding agreement between you and the Company.\nVery truly yours,\nWELLS FARGO SECURITIES LLC,\nfor and on behalf of LaCrosse Footwear, Inc.\nBy: /s/ Samuel E. Farnham\nSamuel E. Farnham\nManaging Director\nAccepted and agreed to as of February 28, 2011:\nABC-MART, INC.\nBy:\n/s/ Minoru Noguchi\nName: Minoru Noguchi\nTitle: President	EX-3 4 d380892dex3.htm CONFIDENTIALITY AGREEMENT\nExhibit 3\n».LOGO\nWells Fargo Securities, LL.C\n301 South College Street\nCharlotte, NC 28288-8905\nFebruary 28, 2011\nABC-Mart, Inc.\nc/o Barclays Capital\n745 Seventh Avenue\nNew York, NY 10019\nAttention: Ari D. Berger, Managing Director\nRetail & Apparel Investment Banking Group\nCONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nYou have expressed interest in pursuing the acquisition of LaCrosse Footwear, Inc. (the “Company”), which is represented by Wells Fargo\nSecurities LLC (“Wells Fargo™), through the purchase of all the capital stock of the Company (the “Transaction”). You have requested that the\nCompany or its representatives furnish you or your representatives with certain information relating to the Company or the Transaction. All such\ninformation (whether written or oral) furnished (whether before or after the date hereof) by the Company or its directors, officers, employees,\naffiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents (collectively, “the Company\nRepresentatives™) to you or your directors, officers, employees, affiliates, representatives (including, without limitation, financial advisors,\nattorneys and accountants) or agents (collectively, “your Representatives”) and all analyses, compilations, forecasts, studies or other documents\nprepared by you or your Representatives in connection with your or their review of, or your interest in, the Transaction which contain or reflect any\nsuch information is hereinafter referred to as the “Information.” The term Information will not, however, include information which (i) is or\nbecomes publicly available other than as a result of a disclosure by you or your Representatives in violation of this letter agreement or other\nobligation of confidentiality, (ii) is already known to you at the time of its receipt form the Company or the Company Representatives, (iii) is or\nbecomes available to you on a nonconfidential basis from a source (other than the Company or its Representatives) not known by you to be\nprohibited from disclosing such information to you by a legal, contractual or fiduciary obligation, or (iv) has been independently developed by you\nor any of your Representatives without reference to any of the Information.\n».LOGO\nWells Fargo Securities, LLC February 28, 2011 Page 2 Accordingly, you hereby agree that: 1. You and your Representatives (i) will keep the Information confidential and will not (except as required by applicable law, regulation or legal\nprocess, and only after compliance with paragraph 3 below), without the Company’s prior written consent, disclose any Information in any\nmanner whatsoever, in whole or in part, (ii) will not use any Information other than in connection with the Transaction; provided, however, that\nyou may reveal the Information or portions thereof to your Representatives (a) who need to know the Information for the purpose of evaluating\nthe Transaction, (b) who are informed by you of the confidential nature of the Information and (c) who are directed by you to treat the\nInformation in a manner consistent with the terms of this letter agreement. You will be responsible for any breach of this letter agreement by\nany of your Representatives. You and the Company shall be permitted to disclose the tax treatment and tax structure of the Transaction\n(including any materials, opinions or analyses relating to such tax treatment or tax structure, but without disclosure of identifying information\nor, except to the extent relating to such tax structure or tax treatment, any nonpublic commercial or financial information) on and after the\nearliest to occur of the date of (i) public announcement of discussions relating to the Transaction, (ii) public announcement of the Transaction\nor (iii) execution of a definitive agreement (with or without conditions) to enter into the Transaction; provided, however, that if the Transaction\nis not consummated for any reason, the provisions of this sentence shall cease to apply.\nYou and your Representatives will not (except as required by applicable law, regulation or legal process, and only after compliance with\nparagraph 3 below), without the Company’s prior written consent, disclose to any person the fact that the Information exists or has been made\navailable, that you are considering the Transaction involving the Company, or that discussions or negotiations are taking or have taken place\nconcerning the Transaction or involving the Company or any term, condition or other fact relating to the Transaction or such discussions or\nnegotiations, including, without limitation, the status thereof or the subject matter of this letter agreement.\nIn the event that you or any of your Representatives are requested pursuant to, or required by, applicable law, regulation or legal process to\ndisclose any of the Information, you will notify the Company promptly (unless prohibited by law) so that the Company may seek an\nappropriate protective order or other appropriate remedy or, in the Company’s sole discretion, waive compliance with the terms of this letter\nagreement (and if the Company seeks such an order, you will provide such cooperation as the Company shall reasonably request). In the event\nthat no such protective order or other remedy is obtained or that the Company waives compliance with the terms of this letter agreement and\nthat you or any of your Representatives are nonetheless legally compelled to disclose such Information, you or your Representatives, as the\ncase may be, will furnish only that portion of the Information which you are advised by counsel is legally required and will give the Company\nwritten notice (unless prohibited by law) of the Information to be disclosed as far in advance as practicable and exercise all reasonable efforts\nto obtain reliable assurance that confidential treatment will be accorded the Information.\nIf you determine not to proceed with the Transaction, you will promptly inform Wells Fargo, of that decision and, in that case, and at any time\nupon the request of the Company or any of the Company Representatives, you will (i) promptly deliver to the Company at your own expense\nor, at the Company’s written request, destroy all copies, whether stored electronically or otherwise, of the written Information in your or your\nRepresentatives’ possession that was delivered to you by the Company or on its behalf and (ii) promptly destroy all analyses, compilations,\nsummaries, studies and other material prepared by you or your Representatives and based in whole or in part on, or otherwise containing or\nreflecting any of, the Information. You will confirm any such destruction to the Company in writing. Any orally disclosed Information will\ncontinue to be subject to the terms of this letter agreement. Notwithstanding the foregoing, and for the avoidance of doubt, neither you nor any\nof your Representatives shall be under any obligation to return or destroy any Information that you or any of your Representatives is required\nto retain pursuant to any laws or regulations, or pursuant to any internal rules required by laws or regulations, and you may retain one copy of\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 3\nthe information in a form acceptable to you at the office of your general counsel solely for the purpose of preserving a record of the\nInformation you or any of your representatives has received and of using such Information to defend yourself or any of your Representatives\nagainst any claims, lawsuit or other administrative or legal action, which may be threatened or instituted in connection with the Information.\n5. You acknowledge that neither the Company, nor Wells Fargo, nor any of the Company’s other Representatives, nor any of their respective\nofficers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the\n“Exchange Act”), make any representation or warranty, express or implied, as to the accuracy or completeness of the Information, and you\nagree that no such person will have any liability relating to the Information or for any errors therein or omissions therefrom. You further agree\nthat you are not entitled to rely on the accuracy or completeness of the Information and that you will be entitled to rely solely on such\nrepresentations and warranties as may be included in any definitive agreement with respect to the Transaction, subject to such limitations and\nrestrictions as may be contained therein.\n6.  You hereby acknowledge that you are aware, and that you will advise your Representatives who are informed of the matters that are the subject\nof this letter agreement, that the United States securities laws prohibit any person who has received from the issuer of such securities material,\nnonpublic information concerning the matters that are the subject of this letter agreement from purchasing or selling securities of such issuer or\nfrom communicating such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell\nsuch securities in reliance upon such information. You hereby represent that, as of the date hereof, you and your affiliates and associates (as\nsuch terms are defined in Rule 12b-2 of the Exchange Act), beneficially own in the aggregate less than 1.00% of the outstanding voting\nsecurities of the Company.\n7.  Except as expressly contemplated thereby, your obligations under this letter agreement shall expire (i) upon the execution of a definitive\nagreement between you and the Company with respect to the Transaction or (ii) if such definitive agreement is not executed, three years from\nthe date of this letter agreement, as the case may be.\n8.  You agree that, for a period of two years from the date of this letter agreement, neither you nor any of your affiliates (as such term is defined in\nRule 12b-2 of the Exchange Act) will (and neither you nor they will assist or encourage others to), without the prior written consent of the\nCompany or its Board of Directors: (i) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, directly or indirectly, by\npurchase or otherwise, ownership (including, without limitation, beneficial ownership as defined in Rule 13d-3 of the Exchange Act) of any\nvoting securities or direct or indirect rights or options to acquire any voting securities of the Company or any subsidiary thereof, or of any\nsuccessor to or person in control of the Company, any of the assets or businesses of the Company or any subsidiary or division thereof or of\nany such successor or controlling person or any bank debt, claims or other obligations of the Company or any rights or options to acquire\n(other than those currently owned) such ownership (including from a third party); (ii) enter into any contract, arrangement, understanding, plan\nor commitment in respect of any Derivative Securities (iii) seek or propose to influence or control the management or policies of the Company\nor to obtain representation on the Company’s Board of Directors, or solicit, or participate in the solicitation of, any proxies or consents with\nrespect to any securities of the Company, or make any public announcement with respect to any of the foregoing or request permission to do\nany of the foregoing; (iv) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any\nextraordinary transaction involving the Company or its securities or assets; or (v) enter into any discussions, negotiations, arrangements or\nunderstandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way participate in a “group” (as\ndefined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing. You will promptly\nadvise the Company of any inquiry or proposal made to you with respect to any of the foregoing unless you are prohibited from doing so in\nconnection with any existing confidentiality obligations you may have.\nWells Fargo Securities, LLC February 28, 2011 Page 4 10. 11. For the purposes for this letter agreement, “Derivative Securities” means any securities that are the subject of any derivative or other\ntransaction entered into by any person, which gives such person the economic equivalent of ownership of an amount of such securities due to\nthe fact that the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether\n(i) such derivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is\ncapable of being or required to be settled by the payment of cash or through the delivery of such securities.\nYou agree that, for a period of three years from the date of this letter agreement, you will not, without the prior written consent of Company,\ndirectly or indirectly, solicit for employment or hire any person who is now an employee of the Company; provided, however, that the\nforegoing provision will not prevent you from employing any such person who contacts you on his or her own initiative without any direct or\nindirect solicitation by or encouragement from you. You also agree that until the earlier of (a) the consummation of a Transaction between the\nCompany and you or (b) three years from the date of this letter agreement, you will not, without the prior written consent of the Company,\n(i) initiate or maintain contact (except in the ordinary course of business) with any officer, director, employee, supplier, distributor, broker or\ncustomer of the Company for the purposes of obtaining information regarding the Company’s operations, assets, prospects or finances or\n(ii) solicit or contract with any of the Company’s potential or actual suppliers, customers, distributors or brokers to the extent identified in the\nInformation except such that have entered into contracts or transactions with you or have engaged in negotiations with you in respect of\npotential contracts or transactions prior to the time of your receipt of such Information.\nYou agree that all (i) communications regarding the Transaction, (ii) requests for additional information, facility tours or management\nmeetings, and (iii) discussions or questions regarding procedures with respect to the Transaction, will be first submitted or directed to Wells\nFargo and not to the Company. You acknowledge and agree that (a) the Company and the Company Representatives are free to conduct the\nprocess relating to a possible Transaction as the Company and the Company Representatives, in their sole discretion, determine (including,\nwithout limitation, conduct of the due diligence process, negotiating with any prospective purchaser and entering into a preliminary or\ndefinitive agreement to effect a Transaction without prior notice to you or any other person), (b) the Company reserves the right, in its sole\ndiscretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to you or any other person,\nto reject any and all proposals made by you or any of your Representatives with respect to the Transaction and to terminate discussions and\nnegotiations with you at any time and for any reason, and (c) unless and until a written definitive agreement concerning the Transaction has\nbeen executed, neither the Company nor any of the Company Representatives will have any liability to you with respect to the Transaction or\nany obligation of any kind whatsoever with respect to a Transaction, whether by virtue of this letter agreement, any other written or oral\nexpression with respect to the Transaction or otherwise.\nThe provisions of paragraph 8 hereof shall be inoperative and of no force or effect if, from and after the date hereof: (a) any person or group\nshall have acquired or entered into a binding definitive agreement that has been approved by the Board of Directors of the Company (or any\nduly constituted committee thereof composed entirely of independent directors) to acquire more than 50% of the Company or assets of the\nCompany or its subsidiaries representing more than 50% of the consolidated earnings power of the Company and its subsidiaries, taken as a\nwhole, (b) any person commences a tender or exchange offer which, if consummated, would result in such person’s acquisition of beneficial\nownership of more than 50% of the outstanding voting securities of the Company, and in connection therewith, the Company files with the\nSEC a Schedule 14D- 9 with respect to such offer; or (c) the Company’s Board of Directors (or any duly constituted committee thereof\ncomposed entirely of independent directors) shall have determined in good faith, after consultation with outside legal counsel, that the failure\nto waive, limit, amend, or otherwise modify this agreement would be reasonably likely to be inconsistent with the fiduciary duties of the\nCompany’s directors under applicable law; provided, however, that with respect to clauses (a), (b) and (c) of this sentence, you shall not have\nsolicited,\nWells Fargo Securities, LLC February 28, 2011 Page 5 12. 13. 14. 15. 16. initiated, encouraged, or taken any action to facilitate or assist or participate with any such other person or group in connection with any of the\ntransactions contemplated by clauses (a), (b) and (c) of this sentence.\nYou acknowledge that remedies at law may be inadequate to protect the Company against any actual or threatened breach of this letter\nagreement by the Company or the Company’s Representatives, and, without prejudice to any other rights and remedies otherwise available to\nthe Company, you agree to the granting of specific performance and injunctive or other equitable relief in the Company’s favor without proof\nof actual damages and you further agree to waive, and to use all reasonable efforts to cause your Representatives to waive, any requirement for\nthe securing or posting of any bond in connection with any such remedy. In the event of litigation relating to this letter agreement, if a court of\ncompetent jurisdiction determines in a final, nonappealable order that this letter agreement has been breached by either party or its\nRepresentatives, then the breaching party will reimburse the other party for its costs and expenses (including, without limitation, reasonable\nlegal fees and expenses) incurred in connection with all such litigation.\nYou agree that no failure or delay by the Company or any of the Company Representatives in exercising any right hereunder will operate as a\nwaiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right\nhereunder.\nThis letter agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between\nresidents of Delaware and executed in and to be performed entirely within Delaware, without giving effect to any choice or conflict of law\nprovision or rule (whether of Oregon, Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other\nthan those of Delaware. Any legal suit, action or proceeding arising out of, based upon or relating to this Agreement shall be instituted in the\nfederal courts of the United States of America or the courts of the State of Oregon in each case located in the City of Portland and/or the\nCounty of Multnomah, Oregon, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or\nproceeding. Service of process, summons, notice or other document by mail shall be effective service of process for any suit, action or other\nproceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit,\naction or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or\nproceeding brought in any such court has been brought in an inconvenient forum.\nThis letter agreement constitutes a binding agreement between you and the Company. No person other than you and the Company is intended\nto be a beneficiary of this letter agreement, and no person other than you and the Company shall have any right to enforce any term of this\nletter agreement.\nThis letter agreement contains the entire agreement between you and the Company concerning the confidentiality of the Information, and no\nprovision of this letter agreement may be waived, amended or modified, in whole or in part, nor any consent given, unless approved in writing\nby a duly authorized representative of the Company, which writing specifically refers to this letter agreement and the provision so amended or\nmodified or for which such waiver or consent is given. In the event that any provision of this letter agreement is deemed invalid, illegal or\nunenforceable, the validity, legality and enforceability of the remaining provisions of this letter agreement will not in any way be affected or\nimpaired thereby.\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 6\nPlease confirm your agreement with the foregoing by signing and returning a duplicate copy of this letter agreement, at which time this letter\nagreement shall become a binding agreement between you and the Company.\nVery truly yours,\nWELLS FARGO SECURITIES LLC,\nfor and on behalf of LaCrosse Footwear, Inc.\nBy: /s/ Samuel E. Farnham\nSamuel E. Farnham\nManaging Director\nAccepted and agreed to as of February 28, 2011:\nABC-MART, INC.\nBy: /s/  Minoru Noguchi\nName: Minoru Noguchi\nTitle: President	EX-3 4 d380892dex3.htm CONFIDENTIALITY AGREEMENT\nExhibit 3\nLOGO\nWells Fargo Securities, LLC\n301 South College Street\nCharlotte, NC 28288-8905\nFebruary 28, 2011\nABC-Mart, Inc.\nc/o Barclays Capital\n745 Seventh Avenue\nNew York, NY 10019\nAttention:\nAri D. Berger, Managing Director\nRetail & Apparel Investment Banking Group\nCONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nYou have expressed interest in pursuing the acquisition of LaCrosse Footwear, Inc. (the "Company"), which is represented by Wells Fargo\nSecurities LLC ("Wells Fargo"), through the purchase of all the capital stock of the Company (the "Transaction"). You have requested that the\nCompany or its representatives furnish you or your representatives with certain information relating to the Company or the Transaction. All such\ninformation (whether written or oral) furnished (whether before or after the date hereof) by the Company or its directors, officers, employees,\naffiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents (collectively, "the Company\nRepresentatives") to you or your directors, officers, employees, affiliates, representatives (including, without limitation, financial advisors,\nattorneys and accountants) or agents (collectively, "your Representatives") and all analyses, compilations, forecasts, studies or other documents\nprepared by you or your Representatives in connection with your or their review of, or your interest in, the Transaction which contain or reflect any\nsuch information is hereinafter referred to as the "Information." The term Information will not, however, include information which (i) is or\nbecomes publicly available other than as a result of a disclosure by you or your Representatives in violation of this letter agreement or other\nobligation of confidentiality, (ii) is already known to you at the time of its receipt form the Company or the Company Representatives, (iii) is\nor\nbecomes available to you on a nonconfidential basis from a source (other than the Company or its Representatives) not known by you to be\nprohibited from disclosing such information to you by a legal, contractual or fiduciary obligation, or (iv) has been independently developed by you\nor any of your Representatives without reference to any of the Information.\nLOGO\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 2\nAccordingly, you hereby agree that:\n1.\nYou and your Representatives (i) will keep the Information confidential and will not (except as required by applicable law, regulation or legal\nprocess, and only after compliance with paragraph 3 below), without the Company's prior written consent, disclose any Information in any\nmanner whatsoever, in whole or in part, (ii) will not use any Information other than in connection with the Transaction; provided, however, that\nyou may reveal the Information or portions thereof to your Representatives (a) who need to know the Information for the purpose of evaluating\nthe Transaction, (b) who are informed by you of the confidential nature of the Information and (c) who are directed by you to treat the\nInformation in a manner consistent with the terms of this letter agreement. You will be responsible for any breach of this letter agreement by\nany\nof your Representatives. You and the Company shall be permitted to disclose the tax treatment and tax structure of the Transaction\n(including any materials, opinions or analyses relating to such tax treatment or tax structure, but without disclosure of identifying information\nor, except to the extent relating to such tax structure or tax treatment, any nonpublic commercial or financial information) on and after the\nearliest to occur of the date of (i) public announcement of discussions relating to the Transaction, (ii) public announcement of the Transaction\nor (iii) execution of a definitive agreement (with or without conditions) to enter into the Transaction; provided, however, that if the Transaction\nis not consummated for any reason, the provisions of this sentence shall cease to apply.\n2.\nYou and your Representatives will not (except as required by applicable law, regulation or legal process, and only after compliance with\nparagraph 3 below), without the Company's prior written consent, disclose to any person the fact that the Information exists or has been made\navailable, that you are considering the Transaction involving the Company, or that discussions or negotiations are taking or have taken place\nconcerning the Transaction or involving the Company or any term, condition or other fact relating to the Transaction or such discussions or\nnegotiations, including, without limitation, the status thereof or the subject matter of this letter agreement.\n3.\nIn the event that you or any of your Representatives are requested pursuant to, or required by, applicable law, regulation or legal process to\ndisclose any of the Information, you will notify the Company promptly (unless prohibited by law) so that the Company may seek an\nappropriate protective order or other appropriate remedy or, in the Company's sole discretion, waive compliance with the terms of this letter\nagreement (and if the Company seeks such an order, you will provide such cooperation as the Company shall reasonably request). In the event\nthat no such protective order or other remedy is obtained or that the Company waives compliance with the terms of this letter agreement and\nthat you or any of your Representatives are nonetheless legally compelled to disclose such Information, you or your Representatives, as the\ncase may be, will furnish only that portion of the Information which you are advised by counsel is legally required and will give the Company\nwritten notice (unless prohibited by law) of the Information to be disclosed as far in advance as practicable and exercise all reasonable efforts\nto obtain reliable assurance that confidential treatment will be accorded the Information.\n4. If you determine not to proceed with the Transaction, you will promptly inform Wells Fargo, of that decision and, in that case, and at any time\nupon the request of the Company or any of the Company Representatives, you will (i) promptly deliver to the Company at your own expense\nor, at the Company's written request, destroy all copies, whether stored electronically or otherwise, of the written Information in your or your\nRepresentatives' possession that was delivered to you by the Company or on its behalf and (ii) promptly destroy all analyses, compilations,\nsummaries, studies and other material prepared by you or your Representatives and based in whole or in part on, or otherwise containing or\nreflecting any of, the Information. You will confirm any such destruction to the Company in writing. Any orally disclosed Information will\ncontinue to be subject to the terms of this letter agreement. Notwithstanding the foregoing, and for the avoidance of doubt, neither you nor any\nof your Representatives shall be under any obligation to return or destroy any Information that you or any of your Representatives is required\nto retain pursuant to any laws or regulations, or pursuant to any internal rules required by laws or regulations, and you may retain one copy of\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 3\nthe information in a form acceptable to you at the office of your general counsel solely for the purpose of preserving a record of the\nInformation you or any of your representatives has received and of using such Information to defend yourself or any of your Representatives\nagainst any claims, lawsuit or other administrative or legal action, which may be threatened or instituted in connection with the Information.\n5.\nYou acknowledge that neither the Company, nor Wells Fargo, nor any of the Company's other Representatives, nor any of their respective\nofficers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the\n"Exchange Act"), make any representation or warranty, express or implied, as to the accuracy or completeness of the Information, and you\nagree that no such person will have any liability relating to the Information or for any errors therein or omissions therefrom. You further agree\nthat you are not entitled to rely on the accuracy or completeness of the Information and that you will be entitled to rely solely on such\nrepresentations and warranties as may be included in any definitive agreement with respect to the Transaction, subject to such limitations and\nrestrictions as may be contained therein.\n6.\nYou hereby acknowledge that you are aware, and that you will advise your Representatives who are informed of the matters that are the subject\nof this letter agreement, that the United States securities laws prohibit any person who has received from the issuer of such securities material,\nnonpublic information concerning the matters that are the subject of this letter agreement from purchasing or selling securities of such issuer or\nfrom communicating such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell\nsuch securities in reliance upon such information. You hereby represent that, as of the date hereof, you and your affiliates and associates (as\nsuch terms are defined in Rule 12b-2 of the Exchange Act), beneficially own in the aggregate less than 1.00% of the outstanding voting\nsecurities of the Company.\n7.\nExcept as expressly contemplated thereby, your obligations under this letter agreement shall expire (i) upon the execution of a definitive\nagreement between you and the Company with respect to the Transaction or (ii) if such definitive agreement is not executed, three years from\nthe date of this letter agreement, as the case may be.\n8.\nYou agree that, for a period of two years from the date of this letter agreement, neither you nor any of your affiliates (as such term is defined in\nRule 12b-2 of the Exchange Act) will (and neither you nor they will assist or encourage others to), without the prior written consent of the\nCompany or its Board of Directors: (i) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, directly or indirectly, by\npurchase or otherwise, ownership (including, without limitation, beneficial ownership as defined in Rule 13d-3 of the Exchange Act) of any\nvoting securities or direct or indirect rights or options to acquire any voting securities of the Company or any subsidiary thereof, or of any\nsuccessor to or person in control of the Company, any of the assets or businesses of the Company or any subsidiary or division thereof or of\nany such successor or controlling person or any bank debt, claims or other obligations of the Company or any rights or options to acquire\n(other than those currently owned) such ownership (including from a third party); (ii) enter into any contract, arrangement, understanding, plan\nor commitment in respect of any Derivative Securities (iii) seek or propose to influence or control the management or policies of the Company\nor to obtain representation on the Company's Board of Directors, or solicit, or participate in the solicitation of, any proxies or consents with\nrespect to any securities of the Company, or make any public announcement with respect to any of the foregoing or request permission to do\nany of the foregoing; (iv) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions)\nany\nextraordinary transaction involving the Company or its securities or assets; or (v) enter into any discussions, negotiations, arrangements or\nunderstandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way participate in a "group" (as\ndefined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing. You will\npromptly\nadvise the Company of any inquiry or proposal made to you with respect to any of the foregoing unless you are prohibited from doing so in\nconnection with any existing confidentiality obligations you may have.\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 4\nFor the purposes for this letter agreement, "Derivative Securities" means any securities that are the subject of any derivative or other\ntransaction entered into by any person, which gives such person the economic equivalent of ownership of an amount of such securities due to\nthe fact that the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether\n(i) such derivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is\ncapable of being or required to be settled by the payment of cash or through the delivery of such securities.\n9.\nYou agree that, for a period of three years from the date of this letter agreement, you will not, without the prior written consent of Company,\ndirectly or indirectly, solicit for employment or hire any person who is now an employee of the Company; provided, however, that the\nforegoing provision will not prevent you from employing any such person who contacts you on his or her own initiative without any direct or\nindirect solicitation by or encouragement from you. You also agree that until the earlier of (a) the consummation of a Transaction between the\nCompany and you or (b) three years from the date of this letter agreement, you will not, without the prior written consent of the Company,\n(i) initiate or maintain contact (except in the ordinary course of business) with any officer, director, employee, supplier, distributor, broker or\ncustomer of the Company for the purposes of obtaining information regarding the Company's operations, assets, prospects or finances or\n(ii) solicit or contract with any of the Company's potential or actual suppliers, customers, distributors or brokers to the extent identified in the\nInformation except such that have entered into contracts or transactions with you or have engaged in negotiations with you in respect of\npotential contracts or transactions prior to the time of your receipt of such Information.\n10. You agree that all (i) communications regarding the Transaction, (ii) requests for additional information, facility tours or management\nmeetings, and (iii) discussions or questions regarding procedures with respect to the Transaction, will be first submitted or directed to Wells\nFargo and not to the Company. You acknowledge and agree that (a) the Company and the Company Representatives are free to conduct the\nprocess relating to a possible Transaction as the Company and the Company Representatives, in their sole discretion, determine (including,\nwithout limitation, conduct of the due diligence process, negotiating with any prospective purchaser and entering into a preliminary or\ndefinitive agreement to effect a Transaction without prior notice to you or any other person), (b) the Company reserves the right, in its sole\ndiscretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to you or any other person,\nto reject any and all proposals made by you or any of your Representatives with respect to the Transaction and to terminate discussions and\nnegotiations with you at any time and for any reason, and (c) unless and until a written definitive agreement concerning the Transaction has\nbeen executed, neither the Company nor any of the Company Representatives will have any liability to you with respect to the Transaction or\nany obligation of any kind whatsoever with respect to a Transaction, whether by virtue of this letter agreement, any other written or oral\nexpression with respect to the Transaction or otherwise.\n11. The provisions of paragraph 8 hereof shall be inoperative and of no force or effect if, from and after the date hereof: (a) any person or group\nshall have acquired or entered into a binding definitive agreement that has been approved by the Board of Directors of the Company (or any\nduly constituted committee thereof composed entirely of independent directors) to acquire more than 50% of the Company or assets of the\nCompany or its subsidiaries representing more than 50% of the consolidated earnings power of the Company and its subsidiaries, taken as a\nwhole, (b) any person commences a tender or exchange offer which, if consummated, would result in such person's acquisition of beneficial\nownership of more than 50% of the outstanding voting securities of the Company, and in connection therewith, the Company files with the\nSEC a Schedule 14D- with respect to such offer; or (c) the Company's Board of Directors (or any duly constituted committee thereof\ncomposed entirely of independent directors) shall have determined in good faith, after consultation with outside legal counsel, that the failure\nto waive, limit, amend, or otherwise modify this agreement would be reasonably likely to be inconsistent with the fiduciary duties of the\nCompany's directors under applicable law; provided, however, that with respect to clauses (a), (b) and (c) of this sentence, you shall not have\nsolicited,\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 5\ninitiated, encouraged, or taken any action to facilitate or assist or participate with any such other person or group in connection with any of the\ntransactions contemplated by clauses (a), (b) and (c) of this sentence.\n12. You acknowledge that remedies at law may be inadequate to protect the Company against any actual or threatened breach of this letter\nagreement by the Company or the Company's Representatives, and, without prejudice to any other rights and remedies otherwise available to\nthe Company, you agree to the granting of specific performance and injunctive or other equitable relief in the Company's favor without proof\nof actual damages and you further agree to waive, and to use all reasonable efforts to cause your Representatives to waive, any requirement for\nthe securing or posting of any bond in connection with any such remedy. In the event of litigation relating to this letter agreement, if a court of\ncompetent jurisdiction determines in a final, nonappealable order that this letter agreement has been breached by either party or its\nRepresentatives, then the breaching party will reimburse the other party for its costs and expenses (including, without limitation, reasonable\nlegal fees and expenses) incurred in connection with all such litigation.\n13. You agree that no failure or delay by the Company or any of the Company Representatives in exercising any right hereunder will operate as a\nwaiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right\nhereunder.\n14. This letter agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between\nresidents of Delaware and executed in and to be performed entirely within Delaware, without giving effect to any choice or conflict of law\nprovision or rule (whether of Oregon, Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other\nthan those of Delaware. Any legal suit, action or proceeding arising out of, based upon or relating to this Agreement shall be instituted in the\nfederal courts of the United States of America or the courts of the State of Oregon in each case located in the City of Portland and/or the\nCounty of Multnomah, Oregon, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or\nproceeding. Service of process, summons, notice or other document by mail shall be effective service of process for any suit, action or other\nproceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit,\naction or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or\nproceeding brought in any such court has been brought in an inconvenient forum.\n15. This letter agreement constitutes a binding agreement between you and the Company. No person other than you and the Company is intended\nto be a beneficiary of this letter agreement, and no person other than you and the Company shall have any right to enforce any term of this\nletter agreement.\n16. This letter agreement contains the entire agreement between you and the Company concerning the confidentiality of the Information, and no\nprovision of this letter agreement may be waived, amended or modified, in whole or in part, nor any consent given, unless approved in writing\nby a duly authorized representative of the Company, which writing specifically refers to this letter agreement and the provision so amended or\nmodified or for which such waiver or consent is given. In the event that any provision of this letter agreement is deemed invalid, illegal or\nunenforceable, the validity, legality and enforceability of the remaining provisions of this letter agreement will not in any way be affected\nor\nimpaired thereby.\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 6\nPlease confirm your agreement with the foregoing by signing and returning a duplicate copy of this letter agreement, at which time this letter\nagreement shall become a binding agreement between you and the Company.\nVery truly yours,\nWELLS FARGO SECURITIES LLC,\nfor and on behalf of LaCrosse Footwear, Inc.\nBy: /s/ Samuel E. Farnham\nSamuel E. Farnham\nManaging Director\nAccepted and agreed to as of February 28, 2011:\nABC-MART, INC.\nBy:\n/s/ Minoru Noguchi\nName: Minoru Noguchi\nTitle: President	EX-3 4 d380892dex3.htm CONFIDENTIALITY AGREEMENT\nExhibit 3\nLOGO\nWells Fargo Securities, LLC\n301 South College Street\nCharlotte, NC 28288-8905\nFebruary 28, 2011\nABC-Mart, Inc.\nc/o Barclays Capital\n745 Seventh Avenue\nNew York, NY 10019\nAttention:\nAri D. Berger, Managing Director\nRetail & Apparel Investment Banking Group\nCONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nYou have expressed interest in pursuing the acquisition of LaCrosse Footwear, Inc. (the “Company”), which is represented by Wells Fargo\nSecurities LLC (“Wells Fargo”), through the purchase of all the capital stock of the Company (the “Transaction”). You have requested that the\nCompany or its representatives furnish you or your representatives with certain information relating to the Company or the Transaction. All such\ninformation (whether written or oral) furnished (whether before or after the date hereof) by the Company or its directors, officers, employees,\naffiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents (collectively, “the Company\nRepresentatives”) to you or your directors, officers, employees, affiliates, representatives (including, without limitation, financial advisors,\nattorneys and accountants) or agents (collectively, “your Representatives”) and all analyses, compilations, forecasts, studies or other documents\nprepared by you or your Representatives in connection with your or their review of, or your interest in, the Transaction which contain or reflect any\nsuch information is hereinafter referred to as the “Information.” The term Information will not, however, include information which (i) is or\nbecomes publicly available other than as a result of a disclosure by you or your Representatives in violation of this letter agreement or other\nobligation of confidentiality, (ii) is already known to you at the time of its receipt form the Company or the Company Representatives, (iii) is or\nbecomes available to you on a nonconfidential basis from a source (other than the Company or its Representatives) not known by you to be\nprohibited from disclosing such information to you by a legal, contractual or fiduciary obligation, or (iv) has been independently developed by you\nor any of your Representatives without reference to any of the Information.\nLOGO\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 2\nAccordingly, you hereby agree that:\n1. You and your Representatives (i) will keep the Information confidential and will not (except as required by applicable law, regulation or legal\nprocess, and only after compliance with paragraph 3 below), without the Company’s prior written consent, disclose any Information in any\nmanner whatsoever, in whole or in part, (ii) will not use any Information other than in connection with the Transaction; provided, however, that\nyou may reveal the Information or portions thereof to your Representatives (a) who need to know the Information for the purpose of evaluating\nthe Transaction, (b) who are informed by you of the confidential nature of the Information and (c) who are directed by you to treat the\nInformation in a manner consistent with the terms of this letter agreement. You will be responsible for any breach of this letter agreement by\nany of your Representatives. You and the Company shall be permitted to disclose the tax treatment and tax structure of the Transaction\n(including any materials, opinions or analyses relating to such tax treatment or tax structure, but without disclosure of identifying information\nor, except to the extent relating to such tax structure or tax treatment, any nonpublic commercial or financial information) on and after the\nearliest to occur of the date of (i) public announcement of discussions relating to the Transaction, (ii) public announcement of the Transaction\nor (iii) execution of a definitive agreement (with or without conditions) to enter into the Transaction; provided, however, that if the Transaction\nis not consummated for any reason, the provisions of this sentence shall cease to apply.\n2. You and your Representatives will not (except as required by applicable law, regulation or legal process, and only after compliance with\nparagraph 3 below), without the Company’s prior written consent, disclose to any person the fact that the Information exists or has been made\navailable, that you are considering the Transaction involving the Company, or that discussions or negotiations are taking or have taken place\nconcerning the Transaction or involving the Company or any term, condition or other fact relating to the Transaction or such discussions or\nnegotiations, including, without limitation, the status thereof or the subject matter of this letter agreement.\n3. In the event that you or any of your Representatives are requested pursuant to, or required by, applicable law, regulation or legal process to\ndisclose any of the Information, you will notify the Company promptly (unless prohibited by law) so that the Company may seek an\nappropriate protective order or other appropriate remedy or, in the Company’s sole discretion, waive compliance with the terms of this letter\nagreement (and if the Company seeks such an order, you will provide such cooperation as the Company shall reasonably request). In the event\nthat no such protective order or other remedy is obtained or that the Company waives compliance with the terms of this letter agreement and\nthat you or any of your Representatives are nonetheless legally compelled to disclose such Information, you or your Representatives, as the\ncase may be, will furnish only that portion of the Information which you are advised by counsel is legally required and will give the Company\nwritten notice (unless prohibited by law) of the Information to be disclosed as far in advance as practicable and exercise all reasonable efforts\nto obtain reliable assurance that confidential treatment will be accorded the Information.\n4. If you determine not to proceed with the Transaction, you will promptly inform Wells Fargo, of that decision and, in that case, and at any time\nupon the request of the Company or any of the Company Representatives, you will (i) promptly deliver to the Company at your own expense\nor, at the Company’s written request, destroy all copies, whether stored electronically or otherwise, of the written Information in your or your\nRepresentatives’ possession that was delivered to you by the Company or on its behalf and (ii) promptly destroy all analyses, compilations,\nsummaries, studies and other material prepared by you or your Representatives and based in whole or in part on, or otherwise containing or\nreflecting any of, the Information. You will confirm any such destruction to the Company in writing. Any orally disclosed Information will\ncontinue to be subject to the terms of this letter agreement. Notwithstanding the foregoing, and for the avoidance of doubt, neither you nor any\nof your Representatives shall be under any obligation to return or destroy any Information that you or any of your Representatives is required\nto retain pursuant to any laws or regulations, or pursuant to any internal rules required by laws or regulations, and you may retain one copy of\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 3\nthe information in a form acceptable to you at the office of your general counsel solely for the purpose of preserving a record of the\nInformation you or any of your representatives has received and of using such Information to defend yourself or any of your Representatives\nagainst any claims, lawsuit or other administrative or legal action, which may be threatened or instituted in connection with the Information.\n5. You acknowledge that neither the Company, nor Wells Fargo, nor any of the Company’s other Representatives, nor any of their respective\nofficers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the\n“Exchange Act”), make any representation or warranty, express or implied, as to the accuracy or completeness of the Information, and you\nagree that no such person will have any liability relating to the Information or for any errors therein or omissions therefrom. You further agree\nthat you are not entitled to rely on the accuracy or completeness of the Information and that you will be entitled to rely solely on such\nrepresentations and warranties as may be included in any definitive agreement with respect to the Transaction, subject to such limitations and\nrestrictions as may be contained therein.\n6. You hereby acknowledge that you are aware, and that you will advise your Representatives who are informed of the matters that are the subject\nof this letter agreement, that the United States securities laws prohibit any person who has received from the issuer of such securities material,\nnonpublic information concerning the matters that are the subject of this letter agreement from purchasing or selling securities of such issuer or\nfrom communicating such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell\nsuch securities in reliance upon such information. You hereby represent that, as of the date hereof, you and your affiliates and associates (as\nsuch terms are defined in Rule 12b-2 of the Exchange Act), beneficially own in the aggregate less than 1.00% of the outstanding voting\nsecurities of the Company.\n7. Except as expressly contemplated thereby, your obligations under this letter agreement shall expire (i) upon the execution of a definitive\nagreement between you and the Company with respect to the Transaction or (ii) if such definitive agreement is not executed, three years from\nthe date of this letter agreement, as the case may be.\n8. You agree that, for a period of two years from the date of this letter agreement, neither you nor any of your affiliates (as such term is defined in\nRule 12b-2 of the Exchange Act) will (and neither you nor they will assist or encourage others to), without the prior written consent of the\nCompany or its Board of Directors: (i) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, directly or indirectly, by\npurchase or otherwise, ownership (including, without limitation, beneficial ownership as defined in Rule 13d-3 of the Exchange Act) of any\nvoting securities or direct or indirect rights or options to acquire any voting securities of the Company or any subsidiary thereof, or of any\nsuccessor to or person in control of the Company, any of the assets or businesses of the Company or any subsidiary or division thereof or of\nany such successor or controlling person or any bank debt, claims or other obligations of the Company or any rights or options to acquire\n(other than those currently owned) such ownership (including from a third party); (ii) enter into any contract, arrangement, understanding, plan\nor commitment in respect of any Derivative Securities (iii) seek or propose to influence or control the management or policies of the Company\nor to obtain representation on the Company’s Board of Directors, or solicit, or participate in the solicitation of, any proxies or consents with\nrespect to any securities of the Company, or make any public announcement with respect to any of the foregoing or request permission to do\nany of the foregoing; (iv) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any\nextraordinary transaction involving the Company or its securities or assets; or (v) enter into any discussions, negotiations, arrangements or\nunderstandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way participate in a “group” (as\ndefined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing. You will promptly\nadvise the Company of any inquiry or proposal made to you with respect to any of the foregoing unless you are prohibited from doing so in\nconnection with any existing confidentiality obligations you may have.\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 4\nFor the purposes for this letter agreement, “Derivative Securities” means any securities that are the subject of any derivative or other\ntransaction entered into by any person, which gives such person the economic equivalent of ownership of an amount of such securities due to\nthe fact that the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether\n(i) such derivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is\ncapable of being or required to be settled by the payment of cash or through the delivery of such securities.\n9. You agree that, for a period of three years from the date of this letter agreement, you will not, without the prior written consent of Company,\ndirectly or indirectly, solicit for employment or hire any person who is now an employee of the Company; provided, however, that the\nforegoing provision will not prevent you from employing any such person who contacts you on his or her own initiative without any direct or\nindirect solicitation by or encouragement from you. You also agree that until the earlier of (a) the consummation of a Transaction between the\nCompany and you or (b) three years from the date of this letter agreement, you will not, without the prior written consent of the Company,\n(i) initiate or maintain contact (except in the ordinary course of business) with any officer, director, employee, supplier, distributor, broker or\ncustomer of the Company for the purposes of obtaining information regarding the Company’s operations, assets, prospects or finances or\n(ii) solicit or contract with any of the Company’s potential or actual suppliers, customers, distributors or brokers to the extent identified in the\nInformation except such that have entered into contracts or transactions with you or have engaged in negotiations with you in respect of\npotential contracts or transactions prior to the time of your receipt of such Information.\n10. You agree that all (i) communications regarding the Transaction, (ii) requests for additional information, facility tours or management\nmeetings, and (iii) discussions or questions regarding procedures with respect to the Transaction, will be first submitted or directed to Wells\nFargo and not to the Company. You acknowledge and agree that (a) the Company and the Company Representatives are free to conduct the\nprocess relating to a possible Transaction as the Company and the Company Representatives, in their sole discretion, determine (including,\nwithout limitation, conduct of the due diligence process, negotiating with any prospective purchaser and entering into a preliminary or\ndefinitive agreement to effect a Transaction without prior notice to you or any other person), (b) the Company reserves the right, in its sole\ndiscretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to you or any other person,\nto reject any and all proposals made by you or any of your Representatives with respect to the Transaction and to terminate discussions and\nnegotiations with you at any time and for any reason, and (c) unless and until a written definitive agreement concerning the Transaction has\nbeen executed, neither the Company nor any of the Company Representatives will have any liability to you with respect to the Transaction or\nany obligation of any kind whatsoever with respect to a Transaction, whether by virtue of this letter agreement, any other written or oral\nexpression with respect to the Transaction or otherwise.\n11. The provisions of paragraph 8 hereof shall be inoperative and of no force or effect if, from and after the date hereof: (a) any person or group\nshall have acquired or entered into a binding definitive agreement that has been approved by the Board of Directors of the Company (or any\nduly constituted committee thereof composed entirely of independent directors) to acquire more than 50% of the Company or assets of the\nCompany or its subsidiaries representing more than 50% of the consolidated earnings power of the Company and its subsidiaries, taken as a\nwhole, (b) any person commences a tender or exchange offer which, if consummated, would result in such person’s acquisition of beneficial\nownership of more than 50% of the outstanding voting securities of the Company, and in connection therewith, the Company files with the\nSEC a Schedule 14D- 9 with respect to such offer; or (c) the Company’s Board of Directors (or any duly constituted committee thereof\ncomposed entirely of independent directors) shall have determined in good faith, after consultation with outside legal counsel, that the failure\nto waive, limit, amend, or otherwise modify this agreement would be reasonably likely to be inconsistent with the fiduciary duties of the\nCompany’s directors under applicable law; provided, however, that with respect to clauses (a), (b) and (c) of this sentence, you shall not have\nsolicited,\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 5\ninitiated, encouraged, or taken any action to facilitate or assist or participate with any such other person or group in connection with any of the\ntransactions contemplated by clauses (a), (b) and (c) of this sentence.\n12. You acknowledge that remedies at law may be inadequate to protect the Company against any actual or threatened breach of this letter\nagreement by the Company or the Company’s Representatives, and, without prejudice to any other rights and remedies otherwise available to\nthe Company, you agree to the granting of specific performance and injunctive or other equitable relief in the Company’s favor without proof\nof actual damages and you further agree to waive, and to use all reasonable efforts to cause your Representatives to waive, any requirement for\nthe securing or posting of any bond in connection with any such remedy. In the event of litigation relating to this letter agreement, if a court of\ncompetent jurisdiction determines in a final, nonappealable order that this letter agreement has been breached by either party or its\nRepresentatives, then the breaching party will reimburse the other party for its costs and expenses (including, without limitation, reasonable\nlegal fees and expenses) incurred in connection with all such litigation.\n13. You agree that no failure or delay by the Company or any of the Company Representatives in exercising any right hereunder will operate as a\nwaiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right\nhereunder.\n14. This letter agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between\nresidents of Delaware and executed in and to be performed entirely within Delaware, without giving effect to any choice or conflict of law\nprovision or rule (whether of Oregon, Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other\nthan those of Delaware. Any legal suit, action or proceeding arising out of, based upon or relating to this Agreement shall be instituted in the\nfederal courts of the United States of America or the courts of the State of Oregon in each case located in the City of Portland and/or the\nCounty of Multnomah, Oregon, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or\nproceeding. Service of process, summons, notice or other document by mail shall be effective service of process for any suit, action or other\nproceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit,\naction or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or\nproceeding brought in any such court has been brought in an inconvenient forum.\n15. This letter agreement constitutes a binding agreement between you and the Company. No person other than you and the Company is intended\nto be a beneficiary of this letter agreement, and no person other than you and the Company shall have any right to enforce any term of this\nletter agreement.\n16. This letter agreement contains the entire agreement between you and the Company concerning the confidentiality of the Information, and no\nprovision of this letter agreement may be waived, amended or modified, in whole or in part, nor any consent given, unless approved in writing\nby a duly authorized representative of the Company, which writing specifically refers to this letter agreement and the provision so amended or\nmodified or for which such waiver or consent is given. In the event that any provision of this letter agreement is deemed invalid, illegal or\nunenforceable, the validity, legality and enforceability of the remaining provisions of this letter agreement will not in any way be affected or\nimpaired thereby.\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 6\nPlease confirm your agreement with the foregoing by signing and returning a duplicate copy of this letter agreement, at which time this letter\nagreement shall become a binding agreement between you and the Company.\nVery truly yours,\nWELLS FARGO SECURITIES LLC,\nfor and on behalf of LaCrosse Footwear, Inc.\nBy: /s/ Samuel E. Farnham\nSamuel E. Farnham\nManaging Director\nAccepted and agreed to as of February 28, 2011:\nABC-MART, INC.\nBy:\n/s/ Minoru Noguchi\nName: Minoru Noguchi\nTitle: President
130c8ecc159401fc5c83d56200848a29.pdf	effective_date jurisdiction party term	EX-99.2 3 d262064dex992.htm NON-DISCLOSURE AGREEMENT DATED AS OF OCTOBER 7, 2011\nExhibit 99.2\nSTRICTLY CONFIDENTIAL\nOctober 7, 2011\nRussian Standard Vodka\nPulkovskoye Shosse, 46/2,\nSaint-Petersburg,\n196140, Russia\nAttention:\nIlya Blinov\nGeneral Manager\nRussian Standard Vodka\nDear Mr. Blinov:\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is dated as of October 7, 2011 by and between Russian Standard Vodka (the\n“Receiving Party”) and Central European Distribution Corporation (together with its subsidiaries, the “Company”).\n1. Confidential Information; Representatives. (a) The Receiving Party has indicated interest in cooperation possibilities, and, in order\nto assist the Receiving Party in evaluating such cooperation, the Company is prepared to make available to the Receiving Party certain information\nconcerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to\nthe Confidential Information being furnished to the Receiving Party and the directors, officers, partners, members, employees, agents, consultants,\nrelated investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, financial advisors and other persons\nwith whom the Receiving Party plans to work with respect to a potential cooperation (only those who receive the Confidential Information and are\nacting on Recipient’s behalf or in conjunction with the Recipient with respect to a potential cooperation possibility, collectively, “Representatives” of\nthe Receiving Party), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this Agreement.\n(b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its\nbusiness, operations, strategy or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company and\nidentified as confidential, whether furnished on or after the date of this Agreement, including, without limitation, any written analyses, business or\nstrategic plans, compilations, studies, data, reports, interpretations, projections, forecasts,\n1\nrecords, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary,\ncomputerized form or otherwise), that contain or otherwise reflect information concerning the Company or its business, operations, strategy or\nprospects prepared by or on behalf of the Receiving Party or any of the Receiving Party’s Representatives or that otherwise reflect any conversations\nwith Company Representatives (as defined below) describing or relating thereto. For any information transmitted orally to be deemed “Confidential\nInformation”, it must be memorialized in writing, identified as confidential and provided to the Receiving Party in written form within five days of\nits disclosure to the Receiving Party. The Company acknowledges and agrees that neither it nor any of its Representatives have provided nonpublic\ninformation with respect to the Company to the Receiving Party prior to the execution and delivery of this Agreement.\n2. Excluded Information. The Confidential Information shall not include information that (a) is or becomes available to the public other\nthan as a result of acts by the Receiving Party in breach of the terms of this Agreement, (b) was in the Receiving Party’s or its Representatives’\npossession nor to disclosure by the Company, (c) is disclosed to the Receiving Party or its Representatives by a third party not known by the\nReceiving Party or its Representatives to be bound by any duty or obligation of confidentiality on a non-confidential basis to the Company with\nregards to the information or (d) is independently developed by you or your Representatives without violating your obligations under this\nAgreement.\n3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall direct its Representatives\nto, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided,\nhowever, that (i) the Receiving Party may make any disclosure of information contained in the Confidential Information to which the Company\ngives its prior written consent, and (ii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s\nRepresentatives who reasonably require access to such information for the purpose of evaluating a possible cooperation and who agree to keep such\ninformation in confidence to the same extent as described herein. The Receiving Party shall be responsible for any breach of the terms of this\nAgreement by the Receiving Party or the breach of the terms of this Agreement applicable to Representatives by any of its Representatives.\n(b) The Receiving Party agrees that, for a period of one (1) year from the date of this Agreement, the Receiving Party shall not use the\nConfidential Information to (i) divert or attempt to divert any known business or customer of the Company or (ii) solicit for employment, or initiate\ncontact for employment with, any known employee of the Company; provided, however, nothing will prohibit: (i) recruiting efforts that are not\nbased on confidential information or general advertisement or other recruiting efforts not specifically targeting employees of the Company and the\nhiring as a result, (ii) the solicitation and hiring of any individual who is no longer employed by the Company at the time of such solicitation or\nhiring and (iii) the hiring by you of anyone who initiates contact with you regarding such employment.\n2\n4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other party or except as may be required by\napplicable law or regulation or other legal process, neither the Receiving Party or its Representatives nor the Company or its Company\nRepresentatives (defined below) shall disclose to any person that any discussions or negotiations are taking place between the parties concerning a\npossible Transaction, including the content and status of such discussions or negotiations (the “Discussion Information”). With respect to the\nReceiving Party, the foregoing shall not apply to persons with which the Receiving Party plans to work for the purpose of a possible cooperation in\nthe context of its discussions with the Company.\n5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if\nany) is to be made available to the Receiving Party and its Representatives, provided, that the Receiving Party may decline to receive Confidential\nInformation at any time for any reason. Neither the Company nor any of its directors, officers. employees, agents, consultants, advisors, attorneys,\naccountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential\nInformation available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential\nInformation previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or\nwarranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company\nRepresentatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use\nof any Confidential Information or any inaccuracies or errors therein or omissions therefrom, absent fraud or willful misconduct. Only those\nrepresentations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated\ntransaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal\neffect.\n6. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return or\ndestroy, at its sole option, all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents\nprepared by the Receiving Party or its Representatives that contain or reflect to a substantial degree any Confidential Information. Notwithstanding\nthe return to the Company or destruction of Confidential Information pursuant to this Section 6, the Receiving Party and its Representatives will\ncontinue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the\nforegoing, any return or destruction is subject to law, regulation and internal document retention policies.\n7. Disclosure Pursuant to Law, Regulation, Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it\ndiscloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under\nthe terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency or as\n3\notherwise required pursuant to law, regulation or other legal process, the Receiving Party shall (if legally practicable or permitted) (a) promptly\nnotify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking\nsteps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such\nportion of the Confidential Information or Discussion Information as the Receiving Party is advised by outside legal counsel is legally required to be\ndisclosed and (d) take commercially reasonable efforts to cooperate with the Company (at the Company’s expense) in its efforts to obtain a\nprotective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that\nconfidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to\nbe disclosed. Notwithstanding the foregoing, the Receiving Party or its Representatives will be permitted to disclose the Confidential Information or\nany portion thereof upon the routine request of any government or regulatory body having or claiming to have authority to regulate or oversee any\naspect of your or your Representatives’ business of that of its affiliates, provided that they shall advise the governmental or regulatory body of the\nconfidential nature of such information.\n8. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to\na possible cooperation has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind\nwhatsoever with respect to such cooperation by virtue of this or any other written or oral expression by either of them or their Representatives\nexcept, in the case of this Agreement, for the matters specifically agreed to herein.\n9. Remedies. Each party acknowledges that in the event of any breach of the terms of this Agreement, the other party may not be made\nwhole by monetary damages only. Accordingly, each party, in addition to any other remedy to which it may be entitled in law or in equity, shall be\nentitled to seek, at its sole expense, an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this\nAgreement.\n10. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the\nReceiving Party shall not (and shall direct its Representatives not to) initiate (other than through the Company’s financial and legal advisors, as\ndesignated by the Company in writing and other than contacts made or initiated in the ordinary course of business) any (a) communication\nconcerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible cooperation\nbetween the parties or (c) communication relating to the business of the Company or its affiliates or the possible cooperation, in each case, with any\nofficer, director or employee of the Company or any of its affiliates. The foregoing shall not apply to communication with the Chief Executive\nOfficer of the Company Bill Carey.\n4\n11. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been\nadvised that the United States securities laws may prohibit any person having non-public material information about a company from purchasing or\nselling securities of that company or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities. Notwithstanding the foregoing or anything to the contrary in this Agreement,\nthe Company acknowledges and agrees that this Agreement is in no way intended to restrict Receiving Party’s (or its Representatives’) ability to\ntrade in securities or instruments (whether physical or derivative) of the Company or any of its affiliates or subsidiaries.\n12. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with\nrespect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the\nCompany expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties\nand their respective successors and assigns.\n13. No Waiver. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege\nhereunder.\n14. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without\nregard to the laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the\njurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to\nthis Agreement: (b) agree that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this\nAgreement shall be effective service of process for any action, suit or proceeding brought against the Receiving Party or any of its Representatives;\n(c) irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this\nAgreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waive the right to plead or claim,\nand irrevocably and unconditionally agree not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is\nbrought in any state or federal court located in the State of New York has been brought in an inconvenient forum.\n15. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction issues a final, non-appealable\njudgment, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal fees and expenses such prevailing party\nhas incurred in connection with such litigation, including any appeal therefrom.\n5\n16. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation\nof any provisions of this Agreement.\n17. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of\nwhich shall constitute one and the same Agreement.\n18. Termination. This Agreement shall terminate and be of no further force and effect one (1) year from the date hereof.\n[Remainder of Page Intentionally Left Blank]\n6\nIN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above.\nCENTRAL EUROPEAN DISTRIBUTION\nCORPORATION\nBy: /s/ Christopher Biedermann\nName: Christopher Biedermann\nTitle: CFO\nRussian Standard Vodka\nBy: /s/ Ilya Blinov\nName: Ilya Blinov\nTitle: General Manager\n7	EX-99.2 3 d262064dex992.htm NON-DISCLOSURE AGREEMENT DATED AS OF OCTOBER 7, 2011\nExhibit 99.2\nSTRICTLY CONFIDENTIAL\nOctober 7, 2011\nRussian Standard Vodka\nPulkovskoye Shosse, 46/2,\nSaint-Petersburg,\n196140, Russia\nAttention:  Ilya Blinov\nGeneral Manager\nRussian Standard Vodka\nDear Mr. Blinov:\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is dated as of October 7, 2011 by and between Russian Standard Vodka (the\n“Receiving Party”) and Central European Distribution Corporation (together with its subsidiaries, the “Company”).\n1. Confidential Information; Representatives. (a) The Receiving Party has indicated interest in cooperation possibilities, and, in order\nto assist the Receiving Party in evaluating such cooperation, the Company is prepared to make available to the Receiving Party certain information\nconcerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to\nthe Confidential Information being furnished to the Receiving Party and the directors, officers, partners, members, employees, agents, consultants,\nrelated investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, financial advisors and other persons\nwith whom the Receiving Party plans to work with respect to a potential cooperation (only those who receive the Confidential Information and are\nacting on Recipient’s behalf or in conjunction with the Recipient with respect to a potential cooperation possibility, collectively, “Representatives” of\nthe Receiving Party), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this Agreement.\n \n(b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its\nbusiness, operations, strategy or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company and\nidentified as confidential, whether furnished on or after the date of this Agreement, including, without limitation, any written analyses, business or\nstrategic plans, compilations, studies, data, reports, interpretations, projections, forecasts,\n1\nrecords, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary,\ncomputerized form or otherwise), that contain or otherwise reflect information concerning the Company or its business, operations, strategy or\nprospects prepared by or on behalf of the Receiving Party or any of the Receiving Party’s Representatives or that otherwise reflect any conversations\nwith Company Representatives (as defined below) describing or relating thereto. For any information transmitted orally to be deemed “Confidential\nInformation”, it must be memorialized in writing, identified as confidential and provided to the Receiving Party in written form within five days of\nits disclosure to the Receiving Party. The Company acknowledges and agrees that neither it nor any of its Representatives have provided nonpublic\ninformation with respect to the Company to the Receiving Party prior to the execution and delivery of this Agreement.\n2. Excluded Information. The Confidential Information shall not include information that (a) is or becomes available to the public other\nthan as a result of acts by the Receiving Party in breach of the terms of this Agreement, (b) was in the Receiving Party’s or its Representatives’\npossession nor to disclosure by the Company, (c) is disclosed to the Receiving Party or its Representatives by a third party not known by the\nReceiving Party or its Representatives to be bound by any duty or obligation of confidentiality on a non-confidential basis to the Company with\nregards to the information or (d) is independently developed by you or your Representatives without violating your obligations under this\nAgreement.\n3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall direct its Representatives\nto, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided,\nhowever, that (i) the Receiving Party may make any disclosure of information contained in the Confidential Information to which the Company\ngives its prior written consent, and (ii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s\nRepresentatives who reasonably require access to such information for the purpose of evaluating a possible cooperation and who agree to keep such\ninformation in confidence to the same extent as described herein. The Receiving Party shall be responsible for any breach of the terms of this\nAgreement by the Receiving Party or the breach of the terms of this Agreement applicable to Representatives by any of its Representatives.\n(b) The Receiving Party agrees that, for a period of one (1) year from the date of this Agreement, the Receiving Party shall not use the\nConfidential Information to (i) divert or attempt to divert any known business or customer of the Company or (ii) solicit for employment, or initiate\ncontact for employment with, any known employee of the Company; provided, however, nothing will prohibit: (i) recruiting efforts that are not\nbased on confidential information or general advertisement or other recruiting efforts not specifically targeting employees of the Company and the\nhiring as a result, (ii) the solicitation and hiring of any individual who is no longer employed by the Company at the time of such solicitation or\nhiring and (iii) the hiring by you of anyone who initiates contact with you regarding such employment.\n2\n4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other party or except as may be required by\napplicable law or regulation or other legal process, neither the Receiving Party or its Representatives nor the Company or its Company\nRepresentatives (defined below) shall disclose to any person that any discussions or negotiations are taking place between the parties concerning a\npossible Transaction, including the content and status of such discussions or negotiations (the “Discussion Information”). With respect to the\nReceiving Party, the foregoing shall not apply to persons with which the Receiving Party plans to work for the purpose of a possible cooperation in\nthe context of its discussions with the Company.\n5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if\nany) is to be made available to the Receiving Party and its Representatives, provided, that the Receiving Party may decline to receive Confidential\nInformation at any time for any reason. Neither the Company nor any of its directors, officers. employees, agents, consultants, advisors, attorneys,\naccountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential\nInformation available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential\nInformation previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or\nwarranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company\nRepresentatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use\nof any Confidential Information or any inaccuracies or errors therein or omissions therefrom, absent fraud or willful misconduct. Only those\nrepresentations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated\ntransaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal\neffect.\n6. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return or\ndestroy, at its sole option, all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents\nprepared by the Receiving Party or its Representatives that contain or reflect to a substantial degree any Confidential Information. Notwithstanding\nthe return to the Company or destruction of Confidential Information pursuant to this Section 6, the Receiving Party and its Representatives will\ncontinue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the\nforegoing, any return or destruction is subject to law, regulation and internal document retention policies.\n7. Disclosure Pursuant to Law, Regulation, Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it\ndiscloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under\nthe terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency or as\n3\notherwise required pursuant to law, regulation or other legal process, the Receiving Party shall (if legally practicable or permitted) (a) promptly\nnotify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking\nsteps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such\nportion of the Confidential Information or Discussion Information as the Receiving Party is advised by outside legal counsel is legally required to be\ndisclosed and (d) take commercially reasonable efforts to cooperate with the Company (at the Company’s expense) in its efforts to obtain a\nprotective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that\nconfidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to\nbe disclosed. Notwithstanding the foregoing, the Receiving Party or its Representatives will be permitted to disclose the Confidential Information or\nany portion thereof upon the routine request of any government or regulatory body having or claiming to have authority to regulate or oversee any\naspect of your or your Representatives’ business of that of its affiliates, provided that they shall advise the governmental or regulatory body of the\nconfidential nature of such information.\n8. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to\na possible cooperation has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind\nwhatsoever with respect to such cooperation by virtue of this or any other written or oral expression by either of them or their Representatives\nexcept, in the case of this Agreement, for the matters specifically agreed to herein.\n9. Remedies. Each party acknowledges that in the event of any breach of the terms of this Agreement, the other party may not be made\nwhole by monetary damages only. Accordingly, each party, in addition to any other remedy to which it may be entitled in law or in equity, shall be\nentitled to seek, at its sole expense, an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this\nAgreement.\n10. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the\nReceiving Party shall not (and shall direct its Representatives not to) initiate (other than through the Company’s financial and legal advisors, as\ndesignated by the Company in writing and other than contacts made or initiated in the ordinary course of business) any (a) communication\nconcerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible cooperation\nbetween the parties or (c) communication relating to the business of the Company or its affiliates or the possible cooperation, in each case, with any\nofficer, director or employee of the Company or any of its affiliates. The foregoing shall not apply to communication with the Chief Executive\nOfficer of the Company Bill Carey.\n11. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been\nadvised that the United States securities laws may prohibit any person having non-public material information about a company from purchasing or\nselling securities of that company or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities. Notwithstanding the foregoing or anything to the contrary in this Agreement,\nthe Company acknowledges and agrees that this Agreement is in no way intended to restrict Receiving Party’s (or its Representatives’) ability to\ntrade in securities or instruments (whether physical or derivative) of the Company or any of its affiliates or subsidiaries.\n12. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with\nrespect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the\nCompany expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties\nand their respective successors and assigns.\n13. No Waiver. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege\nhereunder.\n14. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without\nregard to the laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the\njurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to\nthis Agreement: (b) agree that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this\nAgreement shall be effective service of process for any action, suit or proceeding brought against the Receiving Party or any of its Representatives;\n(c) irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this\nAgreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waive the right to plead or claim,\nand irrevocably and unconditionally agree not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is\nbrought in any state or federal court located in the State of New York has been brought in an inconvenient forum.\n15. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction issues a final, non-appealable\njudgment, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal fees and expenses such prevailing party\nhas incurred in connection with such litigation, including any appeal therefrom.\n5\n16. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation\nof any provisions of this Agreement.\n17. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of\nwhich shall constitute one and the same Agreement.\n18. Termination. This Agreement shall terminate and be of no further force and effect one (1) year from the date hereof.\n[Remainder of Page Intentionally Left Blank]\n6\nIN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above.\nCENTRAL EUROPEAN DISTRIBUTION\nCORPORATION\nBy:  /s/ Christopher Biedermann\nName: Christopher Biedermann\nTitle: CFO\nRussian Standard Vodka\nBy:  /s/Ilya Blinov\nName: Ilya Blinov\nTitle: General Manager	EX-99.2 3 d262064dex992.htm NON-DISCLOSURE AGREEMENT DATED AS OF OCTOBER 7, 2011\nExhibit 99.2\nSTRICTLY CONFIDENTIAL\nOctober 7, 2011\nRussian Standard Vodka\nPulkovskoye Shosse, 46/2,\nSaint-Petersburg,\n196140, Russia\nAttention:\nIlya Blinov\nGeneral Manager\nRussian Standard Vodka\nDear Mr. Blinov:\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this "Agreement") is dated as of October 7, 2011 by and between Russian Standard Vodka (the\n"Receiving Party") and Central European Distribution Corporation (together with its subsidiaries, the "Company").\n1. Confidential Information; Representatives. (a) The Receiving Party has indicated interest in cooperation possibilities, and, in order\nto assist the Receiving Party in evaluating such cooperation, the Company is prepared to make available to the Receiving Party certain information\nconcerning the business, operations, strategy and prospects of the Company (all such information, the "Confidential Information"). As a condition to\nthe Confidential Information being furnished to the Receiving Party and the directors, officers, partners, members, employees, agents, consultants,\nrelated investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, financial advisors and other persons\nwith\nwhom the Receiving Party plans to work with respect to a potential cooperation (only those who receive the Confidential Information and are\nacting on Recipient's behalf or in conjunction with the Recipient with respect to a potential cooperation possibility, collectively, "Representatives" of\nthe Receiving Party), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this Agreement.\n(b) The term "Confidential Information" shall include, without limitation, any and all information concerning the Company and its\nbusiness, operations, strategy or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company and\nidentified as confidential, whether furnished on or after the date of this Agreement, including, without limitation, any written analyses, business or\nstrategic plans, compilations, studies, data, reports, interpretations, projections, forecasts,\n1\nrecords, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary,\ncomputerized form or otherwise), that contain or otherwise reflect information concerning the Company or its business, operations, strategy or\nprospects prepared by or on behalf of the Receiving Party or any of the Receiving Party's Representatives or that otherwise reflect any conversations\nwith Company Representatives (as defined below) describing or relating thereto. For any information transmitted orally to be deemed "Confidential\nInformation", it must be memorialized in writing, identified as confidential and provided to the Receiving Party in written form within five days of\nits\ndisclosure to the Receiving Party. The Company acknowledges and agrees that neither it nor any of its Representatives have provided nonpublic\ninformation with respect to the Company to the Receiving Party prior to the execution and delivery of this Agreement.\n2. Excluded Information. The Confidential Information shall not include information that (a) is or becomes available to the public other\nthan as a result of acts by the Receiving Party in breach of the terms of this Agreement, (b) was in the Receiving Party's or its Representatives'\npossession nor to disclosure by the Company, (c) is disclosed to the Receiving Party or its Representatives by a third party not known by the\nReceiving Party or its Representatives to be bound by any duty or obligation of confidentiality on a non-confidential basis to the Company with\nregards to the information or (d) is independently developed by you or your Representatives without violating your obligations under this\nAgreement.\n3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall direct its Representatives\nto, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided,\nhowever, that (i) the Receiving Party may make any disclosure of information contained in the Confidential Information to which the Company\ngives its prior written consent, and (ii) any information contained in the Confidential Information may be disclosed to the Receiving Party's\nRepresentatives who reasonably require access to such information for the purpose of evaluating a possible cooperation and who agree to keep such\ninformation in confidence to the same extent as described herein. The Receiving Party shall be responsible for any breach of the terms of this\nAgreement by the Receiving Party or the breach of the terms of this Agreement applicable to Representatives by any of its Representatives.\n(b) The Receiving Party agrees that, for a period of one (1) year from the date of this Agreement, the Receiving Party shall not use the\nConfidential Information to (i) divert or attempt to divert any known business or customer of the Company or (ii) solicit for employment, or initiate\ncontact for employment with, any known employee of the Company; provided, however, nothing will prohibit: (i) recruiting efforts that are not\nbased on confidential information or general advertisement or other recruiting efforts not specifically targeting employees of the Company and the\nhiring as a result, (ii) the solicitation and hiring of any individual who is no longer employed by the Company at the time of such solicitation or\nhiring and (iii) the hiring by you of anyone who initiates contact with you regarding such employment.\n2\n4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other party or except as may be required by\napplicable law or regulation or other legal process, neither the Receiving Party or its Representatives nor the Company or its Company\nRepresentatives (defined below) shall disclose to any person that any discussions or negotiations are taking place between the parties concerning\na\npossible Transaction, including the content and status of such discussions or negotiations (the "Discussion Information"). With respect to the\nReceiving Party, the foregoing shall not apply to persons with which the Receiving Party plans to work for the purpose of a possible cooperation\nin\nthe context of its discussions with the Company.\n5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if\nany) is to be made available to the Receiving Party and its Representatives, provided, that the Receiving Party may decline to receive Confidential\nInformation at any time for any reason. Neither the Company nor any of its directors, officers. employees, agents, consultants, advisors, attorneys,\naccountants and affiliates (collectively, the "Company Representatives") will be under any obligation to make any particular Confidential\nInformation available to the Receiving Party or any of the Receiving Party's Representatives or to supplement or update any Confidentia\nInformation previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or\nwarranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company\nRepresentatives will have any liability to the Receiving Party or to any of the Receiving Party's Representatives relating to or resulting from the use\nof any Confidential Information or any inaccuracies or errors therein or omissions therefrom, absent fraud or willful misconduct. Only those\nrepresentations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated\ntransaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal\neffect.\n6. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return or\ndestroy, at its sole option, all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents\nprepared by the Receiving Party or its Representatives that contain or reflect to a substantial degree any Confidential Information. Notwithstanding\nthe return to the Company or destruction of Confidential Information pursuant to this Section 6, the Receiving Party and its Representatives will\ncontinue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the\nforegoing, any return or destruction is subject to law, regulation and internal document retention policies.\n7. Disclosure Pursuant to Law, Regulation, Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it\ndiscloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under\nthe terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency or as\n3\notherwise required pursuant to law, regulation or other legal process, the Receiving Party shall (if legally practicable or permitted) (a) promptly\nnotify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking\nsteps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such\nportion of the Confidential Information or Discussion Information as the Receiving Party is advised by outside legal counsel is legally required to be\ndisclosed and (d) take commercially reasonable efforts to cooperate with the Company (at the Company's expense) in its efforts to obtain a\nprotective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that\nconfidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to\nbe disclosed. Notwithstanding the foregoing, the Receiving Party or its Representatives will be permitted to disclose the Confidential Information or\nany portion thereof upon the routine request of any government or regulatory body having or claiming to have authority to regulate or oversee any\naspect of your or your Representatives' business of that of its affiliates, provided that they shall advise the governmental or regulatory body of the\nconfidential nature of such information.\n8. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to\na possible cooperation has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind\nwhatsoever with respect to such cooperation by virtue of this or any other written or oral expression by either of them or their Representatives\nexcept, in the case of this Agreement, for the matters specifically agreed to herein.\n9. Remedies. Each party acknowledges that in the event of any breach of the terms of this Agreement, the other party may not be made\nwhole by monetary damages only. Accordingly, each party, in addition to any other remedy to which it may be entitled in law or in equity, shall\nbe\nentitled to seek, at its sole expense, an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this\nAgreement.\n10. Communications. Without the Company's prior written consent, which may be withheld by the Company in its sole discretion, the\nReceiving Party shall not (and shall direct its Representatives not to) initiate (other than through the Company's financial and legal advisors, as\ndesignated by the Company in writing and other than contacts made or initiated in the ordinary course of business) any (a) communication\nconcerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible cooperation\nbetween the parties or (c) communication relating to the business of the Company or its affiliates or the possible cooperation, in each case, with any\nofficer, director or employee of the Company or any of its affiliates. The foregoing shall not apply to communication with the Chief Executive\nOfficer of the Company Bill Carey.\n4\n11. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been\nadvised that the United States securities laws may prohibit any person having non-public material information about a company from purchasing or\nselling securities of that company or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities. Notwithstanding the foregoing or anything to the contrary in this Agreement,\nthe Company acknowledges and agrees that this Agreement is in no way intended to restrict Receiving Party's (or its Representatives') ability to\ntrade in securities or instruments (whether physical or derivative) of the Company or any of its affiliates or subsidiaries.\n12. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with\nrespect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the\nCompany expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties\nand their respective successors and assigns.\n13. No Waiver. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege\nhereunder.\n14. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without\nregard to the laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the\njurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating\nto\nthis Agreement: (b) agree that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this\nAgreement\nshall\nbe\neffective\nservice\nof\nprocess\nfor\nany\naction,\nsuit\nor\nproceeding\nbrought\nagainst\nthe\nReceiving\nParty\nor\nany\nof\nits\nRepresentatives;\n(c) irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this\nAgreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waive the right to plead or claim,\nand irrevocably and unconditionally agree not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is\nbrought in any state or federal court located in the State of New York has been brought in an inconvenient forum.\n15.\nExpenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction issues a final,\nnon-appealable\njudgment, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal fees and expenses such prevailing party\nhas incurred in connection with such litigation, including any appeal therefrom.\n5\n16. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation\nof any provisions of this Agreement.\n17. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of\nwhich shall constitute one and the same Agreement.\n18. Termination. This Agreement shall terminate and be of no further force and effect one (1) year from the date hereof.\n[Remainder of Page Intentionally Left Blank]\n6\nIN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above.\nCENTRAL EUROPEAN DISTRIBUTION\nCORPORATION\nBy:\n/s/ Christopher Biedermann\nName: Christopher Biedermann\nTitle: CFO\nRussian Standard Vodka\nBy:\n/s/ Ilya Blinov\nName: Ilya Blinov\nTitle: General Manager\n7	EX-99.2 3 d262064dex992.htm NON-DISCLOSURE AGREEMENT DATED AS OF OCTOBER 7, 2011\nExhibit 99.2\nSTRICTLY CONFIDENTIAL\nOctober 7, 2011\nRussian Standard Vodka\nPulkovskoye Shosse, 46/2,\nSaint-Petersburg,\n196140, Russia\nAttention:\nIlya Blinov\nGeneral Manager\nRussian Standard Vodka\nDear Mr. Blinov:\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is dated as of October 7, 2011 by and between Russian Standard Vodka (the\n“Receiving Party”) and Central European Distribution Corporation (together with its subsidiaries, the “Company”).\n1. Confidential Information; Representatives. (a) The Receiving Party has indicated interest in cooperation possibilities, and, in order\nto assist the Receiving Party in evaluating such cooperation, the Company is prepared to make available to the Receiving Party certain information\nconcerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to\nthe Confidential Information being furnished to the Receiving Party and the directors, officers, partners, members, employees, agents, consultants,\nrelated investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, financial advisors and other persons\nwith whom the Receiving Party plans to work with respect to a potential cooperation (only those who receive the Confidential Information and are\nacting on Recipient’s behalf or in conjunction with the Recipient with respect to a potential cooperation possibility, collectively, “Representatives” of\nthe Receiving Party), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this Agreement.\n(b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its\nbusiness, operations, strategy or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company and\nidentified as confidential, whether furnished on or after the date of this Agreement, including, without limitation, any written analyses, business or\nstrategic plans, compilations, studies, data, reports, interpretations, projections, forecasts,\n1\nrecords, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary,\ncomputerized form or otherwise), that contain or otherwise reflect information concerning the Company or its business, operations, strategy or\nprospects prepared by or on behalf of the Receiving Party or any of the Receiving Party’s Representatives or that otherwise reflect any conversations\nwith Company Representatives (as defined below) describing or relating thereto. For any information transmitted orally to be deemed “Confidential\nInformation”, it must be memorialized in writing, identified as confidential and provided to the Receiving Party in written form within five days of\nits disclosure to the Receiving Party. The Company acknowledges and agrees that neither it nor any of its Representatives have provided nonpublic\ninformation with respect to the Company to the Receiving Party prior to the execution and delivery of this Agreement.\n2. Excluded Information. The Confidential Information shall not include information that (a) is or becomes available to the public other\nthan as a result of acts by the Receiving Party in breach of the terms of this Agreement, (b) was in the Receiving Party’s or its Representatives’\npossession nor to disclosure by the Company, (c) is disclosed to the Receiving Party or its Representatives by a third party not known by the\nReceiving Party or its Representatives to be bound by any duty or obligation of confidentiality on a non-confidential basis to the Company with\nregards to the information or (d) is independently developed by you or your Representatives without violating your obligations under this\nAgreement.\n3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall direct its Representatives\nto, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided,\nhowever, that (i) the Receiving Party may make any disclosure of information contained in the Confidential Information to which the Company\ngives its prior written consent, and (ii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s\nRepresentatives who reasonably require access to such information for the purpose of evaluating a possible cooperation and who agree to keep such\ninformation in confidence to the same extent as described herein. The Receiving Party shall be responsible for any breach of the terms of this\nAgreement by the Receiving Party or the breach of the terms of this Agreement applicable to Representatives by any of its Representatives.\n(b) The Receiving Party agrees that, for a period of one (1) year from the date of this Agreement, the Receiving Party shall not use the\nConfidential Information to (i) divert or attempt to divert any known business or customer of the Company or (ii) solicit for employment, or initiate\ncontact for employment with, any known employee of the Company; provided, however, nothing will prohibit: (i) recruiting efforts that are not\nbased on confidential information or general advertisement or other recruiting efforts not specifically targeting employees of the Company and the\nhiring as a result, (ii) the solicitation and hiring of any individual who is no longer employed by the Company at the time of such solicitation or\nhiring and (iii) the hiring by you of anyone who initiates contact with you regarding such employment.\n2\n4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other party or except as may be required by\napplicable law or regulation or other legal process, neither the Receiving Party or its Representatives nor the Company or its Company\nRepresentatives (defined below) shall disclose to any person that any discussions or negotiations are taking place between the parties concerning a\npossible Transaction, including the content and status of such discussions or negotiations (the “Discussion Information”). With respect to the\nReceiving Party, the foregoing shall not apply to persons with which the Receiving Party plans to work for the purpose of a possible cooperation in\nthe context of its discussions with the Company.\n5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if\nany) is to be made available to the Receiving Party and its Representatives, provided, that the Receiving Party may decline to receive Confidential\nInformation at any time for any reason. Neither the Company nor any of its directors, officers. employees, agents, consultants, advisors, attorneys,\naccountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential\nInformation available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential\nInformation previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or\nwarranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company\nRepresentatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use\nof any Confidential Information or any inaccuracies or errors therein or omissions therefrom, absent fraud or willful misconduct. Only those\nrepresentations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated\ntransaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal\neffect.\n6. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return or\ndestroy, at its sole option, all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents\nprepared by the Receiving Party or its Representatives that contain or reflect to a substantial degree any Confidential Information. Notwithstanding\nthe return to the Company or destruction of Confidential Information pursuant to this Section 6, the Receiving Party and its Representatives will\ncontinue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the\nforegoing, any return or destruction is subject to law, regulation and internal document retention policies.\n7. Disclosure Pursuant to Law, Regulation, Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it\ndiscloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under\nthe terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency or as\n3\notherwise required pursuant to law, regulation or other legal process, the Receiving Party shall (if legally practicable or permitted) (a) promptly\nnotify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking\nsteps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such\nportion of the Confidential Information or Discussion Information as the Receiving Party is advised by outside legal counsel is legally required to be\ndisclosed and (d) take commercially reasonable efforts to cooperate with the Company (at the Company’s expense) in its efforts to obtain a\nprotective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that\nconfidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to\nbe disclosed. Notwithstanding the foregoing, the Receiving Party or its Representatives will be permitted to disclose the Confidential Information or\nany portion thereof upon the routine request of any government or regulatory body having or claiming to have authority to regulate or oversee any\naspect of your or your Representatives’ business of that of its affiliates, provided that they shall advise the governmental or regulatory body of the\nconfidential nature of such information.\n8. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to\na possible cooperation has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind\nwhatsoever with respect to such cooperation by virtue of this or any other written or oral expression by either of them or their Representatives\nexcept, in the case of this Agreement, for the matters specifically agreed to herein.\n9. Remedies. Each party acknowledges that in the event of any breach of the terms of this Agreement, the other party may not be made\nwhole by monetary damages only. Accordingly, each party, in addition to any other remedy to which it may be entitled in law or in equity, shall be\nentitled to seek, at its sole expense, an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this\nAgreement.\n10. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the\nReceiving Party shall not (and shall direct its Representatives not to) initiate (other than through the Company’s financial and legal advisors, as\ndesignated by the Company in writing and other than contacts made or initiated in the ordinary course of business) any (a) communication\nconcerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible cooperation\nbetween the parties or (c) communication relating to the business of the Company or its affiliates or the possible cooperation, in each case, with any\nofficer, director or employee of the Company or any of its affiliates. The foregoing shall not apply to communication with the Chief Executive\nOfficer of the Company Bill Carey.\n4\n11. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been\nadvised that the United States securities laws may prohibit any person having non-public material information about a company from purchasing or\nselling securities of that company or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities. Notwithstanding the foregoing or anything to the contrary in this Agreement,\nthe Company acknowledges and agrees that this Agreement is in no way intended to restrict Receiving Party’s (or its Representatives’) ability to\ntrade in securities or instruments (whether physical or derivative) of the Company or any of its affiliates or subsidiaries.\n12. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with\nrespect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the\nCompany expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties\nand their respective successors and assigns.\n13. No Waiver. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege\nhereunder.\n14. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without\nregard to the laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the\njurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to\nthis Agreement: (b) agree that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this\nAgreement shall be effective service of process for any action, suit or proceeding brought against the Receiving Party or any of its Representatives;\n(c) irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this\nAgreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waive the right to plead or claim,\nand irrevocably and unconditionally agree not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is\nbrought in any state or federal court located in the State of New York has been brought in an inconvenient forum.\n15. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction issues a final, non-appealable\njudgment, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal fees and expenses such prevailing party\nhas incurred in connection with such litigation, including any appeal therefrom.\n5\n16. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation\nof any provisions of this Agreement.\n17. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of\nwhich shall constitute one and the same Agreement.\n18. Termination. This Agreement shall terminate and be of no further force and effect one (1) year from the date hereof.\n[Remainder of Page Intentionally Left Blank]\n6\nIN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above.\nCENTRAL EUROPEAN DISTRIBUTION\nCORPORATION\nBy: /s/ Christopher Biedermann\nName: Christopher Biedermann\nTitle: CFO\nRussian Standard Vodka\nBy: /s/ Ilya Blinov\nName: Ilya Blinov\nTitle: General Manager\n7
14e1555b17437962f38c1ddc372fb4e0.pdf	effective_date jurisdiction party term	Exhibit L-1\nto Amended and Restated Loan Guarantee Agreement\nFORM OF RESTRICTED DATA SITE NONDISCLOSURE AGREEMENT FOR OUTSIDE LEGAL COUNSEL\n[FORM OF] NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this “Agreement”) is dated\n, 20 and is between\n(“Recipient”) and Georgia Power\nCompany, a Georgia corporation (“GPC”).\nRecipient is providing advisory and support services to the Department of Energy (“DOE”), Office of the General Counsel, Loan\nPrograms Office, under Matching Order DEM001-09CF01015 (the “Matching Order”).\nIn order to allow the Recipient to review the following documents (the “Confidential Information”):\ni.\nthe Amended and Restated Services Agreement, between GPC, acting for itself and as agent for the other Owners (as\nsuch term is defined therein, the “Owners”), and Westinghouse Electric Company LLC (“Westinghouse”) and WECTEC Global Project\nServices, Inc. (“WECTEC” and, together with Westinghouse, collectively, the “Service Provider”), dated as of July 20, 2017, as it may\nbe amended from time to time, for Units 3 & 4 at the Vogtle Electric Generating Plant in Waynesboro, Georgia (the “Project”; such\nagreement, the “Services Agreement”);\nii.\nan executed copy of the IP License, between GPC, acting for itself and as agent for the other Owners, and the Service\nProvider, dated as of July 20, 2017, as it may be amended from time to time (the “IP License”);\niii.\nan executed copy of the Facility IP License in the Event of Triggering Event, between GPC, acting for itself and as\nagent for the other Owners, and the Service Provider, dated as of July 20, 2017, as it may be amended from time to time (the\n“Triggering Event License” and, together with the IP License, the “Facility Licenses”);\niv.\nthe Contract for AP1000 Fuel Fabrication, Design and Related Services, dated as of April 3, 2009, between Southern\nNuclear Operating Company, Inc. (the “Operator”), acting as the agent of Georgia Power Company, collectively as owner, and\nWestinghouse, as amended by Amendment No. 1 dated as of June 21, 2012, (as it may be further amended from time to time, the “Fuel\nFabrication Agreement”); any other contract entered into after the date hereof by GPC or the Operator for the supply of fuel assemblies\nand/or related required software for the Project, as it may be amended from time to time (each, a “Fuel Supply Agreement”); the\nAmended and Restated License Agreement dated February 9, 2012, between the Operator, for itself and as agent for Alabama Power\nCompany and Georgia Power Company, collectively, as licensee, and Westinghouse (as it may be amended from time to time, the\n“License Agreement”); the agreement (if any), to be entered into after the date of this Agreement by Westinghouse and the Owners or\nGPC (acting for itself and as agent for the other Owners) if the AP1000-compatible version of Best Estimate Analysis for Core\nOperation Nuclear -\nExhibit L-1\n- Page1\nDirect Margin Monitor System and its related deliverables to be used in the operation of the Project (the “BEACON-\nDMM Software”) is not otherwise provided for the Project, pursuant to which the Owners will acquire the BEACON-\nDMM Software including a license for the use thereof (as such agreement may be amended from time to time, the “BEACON\nSoftware Agreement”);\nv.\nany notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments\nwith respect to the foregoing, with respect to GPC, Oglethorpe Power Corporation, Municipal Electric Authority of Georgia, MEAG\nPower SPVJ, LLC, MEAG Power SPVM, LLC or MEAG Power SPVP, LLC (each a “DOE Borrower”), or the Operator or their\nparticipation in the Project, in each case that has, or could reasonably be expected to have, a Material Adverse Effect (as such term is\ndefined in the Amended and Restated Loan Guarantee Agreements by and between each DOE Borrower and DOE (the “DOE Loan\nGuarantee Agreements”)) or a material adverse effect on the ability of the Project to be completed or operated, only to the extent such\nitems contain Confidential and Proprietary Information as defined in the Services Agreement (“Confidential and Proprietary\nInformation”);\nvi.\nany notice and a copy of any of the following communications received by a DOE Borrower or the Operator from the\nNRC: (1) notice of a potential violation of severity level III or higher (or its equivalent in subsequent versions of the NRC Enforcement\nPolicy); (2) Red, Yellow or White NRC Inspection Finding (or its equivalent in subsequent versions of the Reactor Oversight Policy);\n(3) notice to stop work or shut down or show cause; (4) Demand for Information under 10 CFR § 50.54(f) or 10 CFR § 2.204; or (5) any\nother immediately effective, unilateral, docket-specific, non-routine communication requiring action by any licensee with respect to the\nProject, only to the extent such items contain Confidential and Proprietary Information;\nvii.\nany notice of any complaint, order, directive, claim, citation, designation or notice by any Governmental Authority (as\nsuch term is defined in the DOE Loan Guarantee Agreements) with respect to the Project received by a DOE Borrower or the Operator\nrelating to any actual or potential material non-compliance with its then-existing obligations under Environmental Laws (as such term is\ndefined in the DOE Loan Guarantee Agreements) and any written description of any steps that such DOE Borrower or the Operator is\ntaking and proposes to take with respect to the matters described in such notice, only to the extent such items contain Confidential and\nProprietary Information;\nviii.\nnotice and a copy of any stop work order issued by a DOE Borrower or the Operator with respect to any work on the\nProject, only to the extent such items contain Confidential and Proprietary Information;\nix.\nany notice of any termination, amendment or material waiver or breach of, or material notices and material\ncorrespondence with respect to, the Services Agreement, the Facility Licenses, the Fuel Fabrication Agreement, any other Fuel Supply\nAgreement, the BEACON Software Agreement (if any), or the License Agreement and any copy of any of the foregoing or any\nagreement, instrument or other document giving effect to any\nExhibit L-1\n- Page2\nTM\nTM\nTM\nof the foregoing, only to the extent such items contain Confidential and Proprietary Information;\nx.\nany notice of any event that constitutes an Event of Default, Potential Default, Mandatory Prepayment Event,\nPotential Mandatory Prepayment Event, Alternate Amortization Event or Potential Alternate Amortization Event (as such terms are\ndefined in the DOE Loan Guarantee Agreements) and any written description of any steps any DOE Borrower has taken or proposes to\ntake to remedy matters described in any such notice, only to the extent such items contain Confidential and Proprietary Information;\nxi.\nany notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments\nwith respect to the foregoing, with respect to any DOE Borrower or the Operator or their participation in the Project, in each case that\nhas resulted in, or any DOE Borrower believes will result in, Public Inquiries (as such term is defined in the DOE Loan Guarantee\nAgreements), only to the extent such items contain Confidential and Proprietary Information;\nxii.\nany lien waivers and releases, with respect to all work reflected in any invoice of the Service Provider and, in the case\nof the invoice for the final payment from the DOE Borrowers under the Services Agreement, the Service Provider’s affidavit, only to the\nextent such items contain Confidential and Proprietary Information; and\nxiii.\nany other notice, document or communication required to be delivered to DOE by the Operator or any DOE Borrower\npursuant to the Loan Guarantee Agreement, only to the extent such items contain Confidential and Proprietary Information.\nthe parties agree as follows.\nFor the purposes of this Agreement, “Confidential Information” includes the entirety of documents identified in i-xii above, but\nexcludes any terms, conditions or information that have been Publicly Disclosed (as defined herein) or which Recipient has been authorized in\nwriting by GPC to publicly disclose (except pursuant to clause (3) of paragraph A below). For purposes of this Agreement, “Publicly Disclosed”\nmeans information which has become generally available to the public other than as a result of disclosure by Recipient in violation of the terms\nof this Agreement.\nA.\nIn connection with Recipient’s participation in providing the advisory and support services to the DOE, Office of the General\nCounsel, Loan Programs Office, under the Matching Order:\n(1)\nRecipient acknowledges that (a) pursuant to the terms of the Services Agreement, the Fuel Fabrication Agreement and the\nLicense Agreement, respectively, GPC may not disclose the Confidential Information until and unless the persons to whom\nsuch Confidential Information is disclosed agrees to keep such Confidential Information confidential and (b) Recipient and\npersons to whom\nExhibit L-1\n- Page3\nsuch Confidential Information is disclosed are not obligated to keep confidential any terms, conditions or information that have\nbeen Publicly Disclosed.\n(2)\nRecipient hereby acknowledges, agrees and understands that the Confidential Information is confidential and proprietary\nbusiness, technical and/or financial information of Westinghouse, WECTEC and/or GPC, and the disclosure of Confidential\nInformation could cause substantial harm to the competitive and commercial interests of Westinghouse, WECTEC and/or GPC.\n(3)\nRecipient hereby agrees and confirms that Recipient will protect the confidentiality of such Confidential Information, including\nany information or analysis derived from it, and not disclose it to any third party, except to the individuals and entities under\nthe circumstances described below in this paragraph. Specifically, Recipient will not disclose nor release any Confidential\nInformation, to anyone either during or after the period of performance of the Matching Order other than:\n(a)\nIndividuals within Recipient’s organization who are directly concerned with the performance of the Matching Order\nand who have executed an agreement in the same form as this Agreement or who are secretarial or word processing\npersonnel who Recipient has provided with the Confidential Information solely for the purpose of Recipient’s\nperformance of the Matching Order;\n(b)\nOther individuals who are employees of the United States’ government in connection with their work in relation to the\nDOE Borrowers’ DOE Loan Guarantees for the Project; and\n(c)\nAs required by law, including without limitation pursuant to any direction or an order from a court or federal office\n(e.g ., the Government Accountability Office) of competent jurisdiction, provided that Recipient shall provide written\nnotice to GPC, by email, fax or overnight courier at the addresses below or such other addresses as GPC may notify to\nRecipient in writing from time to time, in advance of any such disclosure so as to allow GPC the opportunity to seek\nto limit the extent of disclosure of the Confidential Information and/or to seek a protective order or other appropriate\nremedy (and/or waive compliance with the provisions of this Agreement); and if such limitation or protective order or\nother appropriate remedy is not obtained before Recipient is legally required to produce such Confidential Information\n(or compliance with the provisions of this Agreement is waived), Recipient after consultation with GPC shall disclose\nonly the minimum amount of Confidential Information that Recipient in good faith and in its sole discretion believes\nis legally required.\nGeorgia Power Company\nExhibit L-1\n- Page4\n241 Ralph McGill Blvd.\nBIN 10240\nAtlanta, GA 30308\nAttention: Office of the General Counsel\nFax: 404-506-2725\nEmail: mmlackey@southernco.com\nWith copies to:\nBalch & Bingham LLP\n1710 Sixth Avenue North\nBirmingham, AL 35203-2015\nAttention: Stan Blanton, Partner\nFax: (205) 488-5879\nEmail: SBLANTON@balch.com\nWestinghouse Electric Company LLC\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Office of the Chief Legal Officer\nFacsimile: 724-940-8508\nEmail: sweenemt@westinghouse.com\nWECTEC Global Project Services, Inc.\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Office of the Chief Legal Officer\nFacsimile: 724-940-8508\nEmail: sweenemt@westinghouse.com\nGPC’s agent, the Operator, will provide access to the Confidential Information on a secure confidential, password-protected\nelectronic data site (i.e ., read-only access) (the “Restricted Data Site”) that will allow Recipient to review the Confidential\nInformation on a need to know and use basis solely for the purpose of monitoring the Project for the DOE Borrowers’ DOE\nLoan Guarantees (and no other guaranteed loans or related projects).\nB.\nGPC acknowledges that Recipient may be required under the terms of the Matching Order to prepare written summaries of the\nConfidential Information (the “Summaries”) for review by DOE and such individuals as set forth in clause (3)(b) of paragraph A above. In\nRecipient’s review of the Confidential Information, Recipient shall be entitled to prepare such written notes and analyses as Recipient shall deem\nappropriate for purposes of preparing the Summaries.\nC.\nIn the event that DOE, pursuant to its rights under the DOE Loan Guarantee Agreements, delivers a written notification to GPC\ndirecting GPC to deliver a copy of a\nExhibit L-1\n- Page5\ndocument constituting Confidential Information to one or more attorneys at [Norton Rose Fulbright US LLP][Hunton Andrews Kurth LLP] (as\noutside counsel for DOE), GPC will, upon reasonable notice, deliver one copy of such Confidential Information (the “NRF {or Hunton} Copy”)\nto Recipient. In the event of such delivery, Recipient agrees to hold the NRF {or Hunton} Copy in the strictest confidence and to maintain the\nsecrecy and/or nonpublic nature of the NRF {or Hunton} Copy. Recipient shall number each additional copy of the NRF {or Hunton} Copy,\nwhich shall be treated in the same manner as the NRF {or Hunton} Copy, and shall allow only those individuals identified in clause (1)(a) of\nparagraph A above to have access to the NRF {or Hunton} Copy or any copy thereof; provided that Recipient shall be permitted to disclose the\nNRF {or Hunton} Copy as required by law, including without limitation pursuant to any direction or an order from a court or federal office (e.g .,\nthe Government Accountability Office) of competent jurisdiction, provided that Recipient shall provide written notice to GPC in advance of any\nsuch disclosure in accordance with, and shall follow the further procedures set out in, clause (3)(c) of paragraph A above. Recipient shall\nprovide notice to GPC of the number of additional copies of the NRF {or Hunton} Copy that have been made.\nD.\nConsistent with subpart (g) of the Nondisclosure Acknowledgement executed at the request of DOE by [Recipient][individuals\nwithin Recipient’s organization who are directly concerned with the performance of the Matching Order] (“Nondisclosure Acknowledgement”),\nRecipient acknowledges that the Confidential Information is Loan Guarantee Information and will be utilized in accordance with the task or\nsubtask assignment only and acknowledges that the disclosure of this Confidential Information is otherwise restricted by Westinghouse,\nWECTEC and/or GPC as submitters.\nE.\nRecipient hereby agrees that the representations and commitments made in subparts (a) and (h) of the Nondisclosure\nAcknowledgement extend to Confidential Information supplied by Westinghouse, WECTEC and/or GPC with respect to the use and review of\nthe Confidential Information.\nF.\nThis Agreement shall be governed in accordance with the laws of the State of New York without giving effect to any choice of\nlaw, provision, or rule (whether of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than\nNew York.\n[The remainder of this page is intentionally blank.]\nExhibit L-1\n- Page6\nACCEPTED AND AGREED\nBy:\nName:\nTitle:\nDate:\nACKNOWLEDGED AND AGREED\nGEORGIA POWER COMPANY\nBy:\nName:\nTitle:\nDate:\nExhibit L-1\n- Page7	ExhibitI.-1\nto Amended and Restated Loan Guarantee Agreement\nFORM OF RESTRICTED DATA SITE NONDISCLOSURE AGREEMENT FOR OUTSIDE LEGAL COUNSEL\n[FORM OF] NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this “Agreement”) is dated , 20 and is between (“Recipient”) and Georgia Power\nCompany, a Georgia corporation (“GPC”).\n \nRecipient is providing advisory and support services to the Department of Energy (“DOE”), Office of the General Counsel, Loan\nPrograms Office, under Matching Order DEM001-09CF01015 (the “Matching Order”).\n \nIn order to allow the Recipient to review the following documents (the “Confidential Information™):\nL the Amended and Restated Services Agreement, between GPC, acting for itself and as agent for the other Owners (as\nsuch term is defined therein, the “Owners”), and Westinghouse Electric Company LLC (“Westinghouse”) and WECTEC Global Project\nServices, Inc. (“WECTEC” and, together with Westinghouse, collectively, the “Service Provider”), dated as of July 20, 2017, as it may\nbe amended from time to time, for Units 3 & 4 at the Vogtle Electric Generating Plant in Waynesboro, Georgia (the “Project”; such\nagreement, the “Services Agreement”);\nii. an executed copy of the IP License, between GPC, acting for itself and as agent for the other Owners, and the Service\nProvider, dated as of July 20, 2017, as it may be amended from time to time (the “IP License”);\niil. an executed copy of the Facility IP License in the Event of Triggering Event, between GPC, acting for itself and as\nagent for the other Owners, and the Service Provider, dated as of July 20, 2017, as it may be amended from time to time (the\n“Triggering Event License” and, together with the IP License, the “Facility Licenses™);\n \niv. the Contract for AP1000 Fuel Fabrication, Design and Related Services, dated as of April 3, 2009, between Southern\nNuclear Operating Company, Inc. (the “Operator”), acting as the agent of Georgia Power Company, collectively as owner, and\nWestinghouse, as amended by Amendment No. 1 dated as of June 21, 2012, (as it may be further amended from time to time, the “Fuel\nFabrication Agreement”); any other contract entered into after the date hereof by GPC or the Operator for the supply of fuel assemblies\nand/or related required software for the Project, as it may be amended from time to time (each, a “Fuel Supply Agreement”); the\nAmended and Restated License Agreement dated February 9, 2012, between the Operator, for itself and as agent for Alabama Power\nCompany and Georgia Power Company, collectively, as licensee, and Westinghouse (as it may be amended from time to time, the\n“License Agreement”); the agreement (if any), to be entered into after the date of this Agreement by Westinghouse and the Owners or\nGPC (acting for itself and as agent for the other Owners) if the AP1000-compatible version of Best Estimate Analysis for Core\nOperation Nuclear -\n \n \nExhibit L-1 - Page 1\n \nDirect Margin Monitor™ System and its related deliverables to be used in the operation of the Project (the “BEACON-\nDMM™M Software”) is not otherwise provided for the Project, pursuant to which the Owners will acquire the BEACON-\nDMM™ Software including a license for the use thereof (as such agreement may be amended from time to time, the “BEACON\nSoftware Agreement”);\n \nV. any notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments\nwith respect to the foregoing, with respect to GPC, Oglethorpe Power Corporation, Municipal Electric Authority of Georgia, MEAG\nPower SPVJ, LLC, MEAG Power SPVM, LLC or MEAG Power SPVP, LLC (each a “DOE Borrower”), or the Operator or their\nparticipation in the Project, in each case that has, or could reasonably be expected to have, a Material Adverse Effect (as such term is\ndefined in the Amended and Restated Loan Guarantee Agreements by and between each DOE Borrower and DOE (the “DOE Loan\nGuarantee Agreements™)) or a material adverse effect on the ability of the Project to be completed or operated, only to the extent such\nitems contain Confidential and Proprietary Information as defined in the Services Agreement (“Confidential and Proprietary\nInformation”);\nVi. any notice and a copy of any of the following communications received by a DOE Borrower or the Operator from the\nNRC: (1) notice of a potential violation of severity level III or higher (or its equivalent in subsequent versions of the NRC Enforcement\nPolicy); (2) Red, Yellow or White NRC Inspection Finding (or its equivalent in subsequent versions of the Reactor Oversight Policy);\n(3) notice to stop work or shut down or show cause; (4) Demand for Information under 10 CFR § 50.54(f) or 10 CFR § 2.204; or (5) any\nother immediately effective, unilateral, docket-specific, non-routine communication requiring action by any licensee with respect to the\nProject, only to the extent such items contain Confidential and Proprietary Information;\nvil. any notice of any complaint, order, directive, claim, citation, designation or notice by any Governmental Authority (as\nsuch term is defined in the DOE Loan Guarantee Agreements) with respect to the Project received by a DOE Borrower or the Operator\nrelating to any actual or potential material non-compliance with its then-existing obligations under Environmental Laws (as such term is\ndefined in the DOE Loan Guarantee Agreements) and any written description of any steps that such DOE Borrower or the Operator is\ntaking and proposes to take with respect to the matters described in such notice, only to the extent such items contain Confidential and\nProprietary Information;\nviil. notice and a copy of any stop work order issued by a DOE Borrower or the Operator with respect to any work on the\nProject, only to the extent such items contain Confidential and Proprietary Information;\nix. any notice of any termination, amendment or material waiver or breach of, or material notices and material\ncorrespondence with respect to, the Services Agreement, the Facility Licenses, the Fuel Fabrication Agreement, any other Fuel Supply\nAgreement, the BEACON Software Agreement (if any), or the License Agreement and any copy of any of the foregoing or any\nagreement, instrument or other document giving effect to any\nExhibit L-1 - Page 2\n \nof the foregoing, only to the extent such items contain Confidential and Proprietary Information;\nX. any notice of any event that constitutes an Event of Default, Potential Default, Mandatory Prepayment Event,\nPotential Mandatory Prepayment Event, Alternate Amortization Event or Potential Alternate Amortization Event (as such terms are\ndefined in the DOE Loan Guarantee Agreements) and any written description of any steps any DOE Borrower has taken or proposes to\ntake to remedy matters described in any such notice, only to the extent such items contain Confidential and Proprietary Information;\nxi. any notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments\nwith respect to the foregoing, with respect to any DOE Borrower or the Operator or their participation in the Project, in each case that\nhas resulted in, or any DOE Borrower believes will result in, Public Inquiries (as such term is defined in the DOE Loan Guarantee\nAgreements), only to the extent such items contain Confidential and Proprietary Information;\nxil. any lien waivers and releases, with respect to all work reflected in any invoice of the Service Provider and, in the case\nof the invoice for the final payment from the DOE Borrowers under the Services Agreement, the Service Provider’s affidavit, only to the\nextent such items contain Confidential and Proprietary Information; and\nxiii. any other notice, document or communication required to be delivered to DOE by the Operator or any DOE Borrower\npursuant to the Loan Guarantee Agreement, only to the extent such items contain Confidential and Proprietary Information.\nthe parties agree as follows.\nFor the purposes of this Agreement, “Confidential Information” includes the entirety of documents identified in i-xii above, but\nexcludes any terms, conditions or information that have been Publicly Disclosed (as defined herein) or which Recipient has been authorized in\nwriting by GPC to publicly disclose (except pursuant to clause (3) of paragraph A below). For purposes of this Agreement, “Publicly Disclosed”\nmeans information which has become generally available to the public other than as a result of disclosure by Recipient in violation of the terms\nof this Agreement.\nA. In connection with Recipient’s participation in providing the advisory and support services to the DOE, Office of the General\nCounsel, Loan Programs Office, under the Matching Order:\nD Recipient acknowledges that (a) pursuant to the terms of the Services Agreement, the Fuel Fabrication Agreement and the\nLicense Agreement, respectively, GPC may not disclose the Confidential Information until and unless the persons to whom\nsuch Confidential Information is disclosed agrees to keep such Confidential Information confidential and (b) Recipient and\npersons to whom\nExhibit L-1 - Page 3\n \n@)\n®3)\nsuch Confidential Information is disclosed are not obligated to keep confidential any terms, conditions or information that have been Publicly Disclosed. Recipient hereby acknowledges, agrees and understands that the Confidential Information is confidential and proprietary business, technical and/or financial information of Westinghouse, WECTEC and/or GPC, and the disclosure of Confidential Information could cause substantial harm to the competitive and commercial interests of Westinghouse, WECTEC and/or GPC. Recipient hereby agrees and confirms that Recipient will protect the confidentiality of such Confidential Information, including any information or analysis derived from it, and not disclose it to any third party, except to the individuals and entities under the circumstances described below in this paragraph. Specifically, Recipient will not disclose nor release any Confidential Information, to anyone either during or after the period of performance of the Matching Order other than: (a)\n(b)\n(©\nIndividuals within Recipient’s organization who are directly concerned with the performance of the Matching Order\nand who have executed an agreement in the same form as this Agreement or who are secretarial or word processing\npersonnel who Recipient has provided with the Confidential Information solely for the purpose of Recipient’s\nperformance of the Matching Order;\nOther individuals who are employees of the United States’ government in connection with their work in relation to the\nDOE Borrowers’ DOE Loan Guarantees for the Project; and\nAs required by law, including without limitation pursuant to any direction or an order from a court or federal office\n(e.g., the Government Accountability Office) of competent jurisdiction, provided that Recipient shall provide written\nnotice to GPC, by email, fax or overnight courier at the addresses below or such other addresses as GPC may notify to\nRecipient in writing from time to time, in advance of any such disclosure so as to allow GPC the opportunity to seek\nto limit the extent of disclosure of the Confidential Information and/or to seek a protective order or other appropriate\nremedy (and/or waive compliance with the provisions of this Agreement); and if such limitation or protective order or\nother appropriate remedy is not obtained before Recipient is legally required to produce such Confidential Information\n(or compliance with the provisions of this Agreement is waived), Recipient after consultation with GPC shall disclose\nonly the minimum amount of Confidential Information that Recipient in good faith and in its sole discretion believes\nis legally required.\nGeorgia Power Company\nExhibit L-1 - Page 4\n \n241 Ralph McGill Blvd.\nBIN 10240\nAtlanta, GA 30308\nAttention: Office of the General Counsel\nFax: 404-506-2725\nEmail: mmlackey@southernco.com\nWith copies to:\nBalch & Bingham LLP\n1710 Sixth Avenue North\nBirmingham, AL 35203-2015\nAttention: Stan Blanton, Partner\nFax: (205) 488-5879\nEmail: SBLANTON@balch.com\nWestinghouse Electric Company LLC\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Office of the Chief Legal Officer\nFacsimile: 724-940-8508\nEmail: sweenemt@westinghouse.com\nWECTEC Global Project Services, Inc.\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Office of the Chief Legal Officer\nFacsimile: 724-940-8508\nEmail: sweenemt@westinghouse.com\nGPC'’s agent, the Operator, will provide access to the Confidential Information on a secure confidential, password-protected\nelectronic data site (i.e., read-only access) (the “Restricted Data Site”) that will allow Recipient to review the Confidential\nInformation on a need to know and use basis solely for the purpose of monitoring the Project for the DOE Borrowers’ DOE\nLoan Guarantees (and no other guaranteed loans or related projects).\nB. GPC acknowledges that Recipient may be required under the terms of the Matching Order to prepare written summaries of the\nConfidential Information (the “Summaries”) for review by DOE and such individuals as set forth in clause (3)(b) of paragraph A above. In\nRecipient’s review of the Confidential Information, Recipient shall be entitled to prepare such written notes and analyses as Recipient shall deem\nappropriate for purposes of preparing the Summaries.\nC. In the event that DOE, pursuant to its rights under the DOE Loan Guarantee Agreements, delivers a written notification to GPC\ndirecting GPC to deliver a copy of a\nExhibit L-1 - Page 5\n \ndocument constituting Confidential Information to one or more attorneys at [Norton Rose Fulbright US LLP][Hunton Andrews Kurth LLP] (as\noutside counsel for DOE), GPC will, upon reasonable notice, deliver one copy of such Confidential Information (the “NRF {or Hunton} Copy”)\nto Recipient. In the event of such delivery, Recipient agrees to hold the NRF {or Hunton} Copy in the strictest confidence and to maintain the\nsecrecy and/or nonpublic nature of the NRF {or Hunton} Copy. Recipient shall number each additional copy of the NRF {or Hunton} Copy,\nwhich shall be treated in the same manner as the NRF {or Hunton} Copy, and shall allow only those individuals identified in clause (1)(a) of\nparagraph A above to have access to the NRF {or Hunton} Copy or any copy thereof; provided that Recipient shall be permitted to disclose the\nNRF {or Hunton} Copy as required by law, including without limitation pursuant to any direction or an order from a court or federal office (e.g.,\nthe Government Accountability Office) of competent jurisdiction, provided that Recipient shall provide written notice to GPC in advance of any\nsuch disclosure in accordance with, and shall follow the further procedures set out in, clause (3)(c) of paragraph A above. Recipient shall\nprovide notice to GPC of the number of additional copies of the NRF {or Hunton} Copy that have been made.\nD. Consistent with subpart (g) of the Nondisclosure Acknowledgement executed at the request of DOE by [Recipient][individuals\nwithin Recipient’s organization who are directly concerned with the performance of the Matching Order] (“Nondisclosure Acknowledgement”),\nRecipient acknowledges that the Confidential Information is Loan Guarantee Information and will be utilized in accordance with the task or\nsubtask assignment only and acknowledges that the disclosure of this Confidential Information is otherwise restricted by Westinghouse,\nWECTEC and/or GPC as submitters.\nE. Recipient hereby agrees that the representations and commitments made in subparts (a) and (h) of the Nondisclosure\nAcknowledgement extend to Confidential Information supplied by Westinghouse, WECTEC and/or GPC with respect to the use and review of\nthe Confidential Information.\nF. This Agreement shall be governed in accordance with the laws of the State of New York without giving effect to any choice of\nlaw, provision, or rule (whether of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than\nNew York.\n[The remainder of this page is intentionally blank.]\nExhibit L-1 - Page 6\n \nACCEPTED AND AGREED\nBy:\nName:\nTitle:\nDate:\nACKNOWLEDGED AND AGREED\nGEORGIA POWER COMPANY\nBy:\nName:\nTitle:\nDate:\nExhibit L-1 - Page 7\n	Exhibit L-1\nto Amended and Restated Loan Guarantee Agreement\nFORM OF RESTRICTED DATA SITE NONDISCLOSURE AGREEMENT FOR OUTSIDE LEGAL COUNSEL\n[FORM OF] NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this "Agreement") is dated\n20 and is between\n("Recipient") and Georgia Power\nCompany, a Georgia corporation ("GPC").\nRecipient is providing advisory and support services to the Department of Energy ("DOE"), Office of the General Counsel, Loan\nPrograms Office, under Matching Order DEM001-09CF01015 (the "Matching. Order").\nIn order to allow the Recipient to review the following documents (the "Confidential Information"):\ni.\nthe Amended and Restated Services Agreement, between GPC, acting for itself and as agent for the other Owners (as\nsuch term is defined therein, the "Owners"), and Westinghouse Electric Company LLC ("Westinghouse") and WECTEC\nGlobal\nProject\nServices, Inc. ("WECTEC" and, together with Westinghouse, collectively, the "Service Provider"), dated as of July 20, 2017, as it may\nbe amended from time to time, for Units 3 & 4 at the Vogtle Electric Generating Plant in Waynesboro, Georgia (the "Project"; such\nagreement, the "Services Agreement");\nii.\nan executed copy of the IP License, between GPC, acting for itself and as agent for the other Owners, and the Service\nProvider, dated as of July 20, 2017, as it may be amended from time to time (the "IP License");\niii.\nan executed copy of the Facility IP License in the Event of Triggering Event, between GPC, acting for itself\nand\nas\nagent for the other Owners, and the Service Provider, dated as of July 20, 2017, as it may be amended from time to time (the\n"Triggering. Event License" and, together with the IP License, the "Facility Licenses");\niv.\nthe Contract for AP1000 Fuel Fabrication, Design and Related Services, dated as of April 3, 2009, between Southern\nNuclear Operating Company, Inc. (the "Operator"), acting as the agent of Georgia Power Company, collectively as owner, and\nWestinghouse, as amended by Amendment No. 1 dated as of June 21, 2012, (as it may be further amended from time to time, the "Fuel\nFabrication Agreement"); any other contract entered into after the date hereof by GPC or the Operator for the supply of fuel assemblies\nand/or related required software for the Project, as it may be amended from time to time (each, a "Fuel Supply Agreement"); the\nAmended and Restated License Agreement dated February 9, 2012, between the Operator, for itself and as agent for Alabama Power\nCompany and Georgia Power Company, collectively, as licensee, and Westinghouse (as it may be amended from time to time, the\n"License Agreement"); the agreement (if any), to be entered into after the date of this Agreement by Westinghouse and the Owners or\nGPC (acting for itself and as agent for the other Owners) if the AP1000-compatible version of Best Estimate Analysis for Core\nOperation Nuclear\nExhibit L-1 - Page 1\nDirect Margin MonitorTN System and its related deliverables to be used in the operation of the Project (the "BEACON-\nDMMIM Software") is not otherwise provided for the Project, pursuant to which the Owners will acquire the BEACON-\nDMMTM Software including a license for the use thereof (as such agreement may be amended from time to time, the "BEACON\nSoftware Agreement");\nV.\nany notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments\nwith respect to the foregoing, with respect to GPC, Oglethorpe Power Corporation, Municipal Electric Authority of Georgia, MEAG\nPower SPVJ, LLC, MEAG Power SPVM, LLC or MEAG Power SPVP, LLC (each a "DOE Borrower"), or the Operator or their\nparticipation in the Project, in each case that has, or could reasonably be expected to have, a Material Adverse Effect (as such term is\ndefined in the Amended and Restated Loan Guarantee Agreements by and between each DOE Borrower and DOE (the "DOE Loan\nGuarantee Agreements")) or a material adverse effect on the ability of the Project to be completed or operated, only to the extent such\nitems contain Confidential and Proprietary Information as defined in the Services Agreement ("Confidential and Proprietary.\nInformation");\nvi.\nany notice and a copy of any of the following communications received by a DOE Borrower or the Operator from the\nNRC: (1) notice of a potential violation of severity level III or higher (or its equivalent in subsequent versions of the NRC Enforcement\nPolicy); (2) Red, Yellow or White NRC Inspection Finding (or its equivalent in subsequent versions of the Reactor Oversight Policy);\n(3) notice to stop work or shut down or show cause; (4) Demand for Information under 10 CFR 8 50.54(f) or 10 CFR 8 2.204; or (5) any\nother immediately effective, unilateral, docket-specific, non-routine communication requiring action by any licensee with respect to the\nProject, only to the extent such items contain Confidential and Proprietary Information;\nvii.\nany notice of any complaint, order, directive, claim, citation, designation or notice by any Governmental Authority (as\nsuch term is defined in the DOE Loan Guarantee Agreements) with respect to the Project received by a DOE Borrower or the Operator\nrelating to any actual or potential material non-compliance with its then-existing obligations under Environmenta Laws (as such term is\ndefined in the DOE Loan Guarantee Agreements) and any written description of any steps that such DOE Borrower or the Operator is\ntaking and proposes to take with respect to the matters described in such notice, only to the extent such items contain Confidential and\nProprietary Information;\nviii.\nnotice and a copy of any stop work order issued by a DOE Borrower or the Operator with respect to any work on the\nProject, only to the extent such items contain Confidential and Proprietary Information;\nix.\nany notice of any termination, amendment or material waiver or breach of, or material notices and material\ncorrespondence with respect to, the Services Agreement, the Facility Licenses, the Fuel Fabrication Agreement, any other Fuel Supply\nAgreement, the BEACON Software Agreement (if any), or the License Agreement and any copy of any of the foregoing or any\nagreement, instrument or other document giving effect to any\nExhibit L-1 Page 2\nof the foregoing, only to the extent such items contain Confidential and Proprietary Information;\nX.\nany notice of any event that constitutes an Event of Default, Potential Default, Mandatory Prepayment Event,\nPotential Mandatory Prepayment Event, Alternate Amortization Event or Potential Alternate Amortization Event (as such terms are\ndefined in the DOE Loan Guarantee Agreements) and any written description of any steps any DOE Borrower has taken or proposes to\ntake to remedy matters described in any such notice, only to the extent such items contain Confidential and Proprietary Information;\nxi.\nany notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments\nwith respect to the foregoing, with respect to any DOE Borrower or the Operator or their participation in the Project, in each case that\nhas resulted in, or any DOE Borrower believes will result in, Public Inquiries (as such term is defined in the DOE Loan Guarantee\nAgreements), only to the extent such items contain Confidential and Proprietary Information;\nxii.\nany lien waivers and releases, with respect to all work reflected in any invoice of the Service Provider and, in the case\nof the invoice for the final payment from the DOE Borrowers under the Services Agreement, the Service Provider's affidavit, only to the\nextent such items contain Confidential and Proprietary Information; and\nxiii. any other notice, document or communication required to be delivered to DOE by the Operator or any DOE Borrower\npursuant to the Loan Guarantee Agreement, only to the extent such items contain Confidential and Proprietary Information.\nthe parties agree as follows.\nFor the purposes of this Agreement, "Confidential Information" includes the entirety of documents identified in i-xii above, but\nexcludes any terms, conditions or information that have been Publicly Disclosed (as defined herein) or which Recipient has been authorized in\nwriting by GPC to publicly disclose (except pursuant to clause (3) of paragraph A below). For purposes of this Agreement, "Publicly Disclosed"\nmeans information which has become generally available to the public other than as a result of disclosure by Recipient in violation of the terms\nof this Agreement.\nA.\nIn connection with Recipient's participation in providing the advisory and support services to the DOE, Office of the General\nCounsel, Loan Programs Office, under the Matching Order:\n(1)\nRecipient acknowledges that (a) pursuant to the terms of the Services Agreement, the Fuel Fabrication Agreement and the\nLicense Agreement, respectively, GPC may not disclose the Confidential Information until and unless the persons to whom\nsuch Confidential Information is disclosed agrees to keep such Confidential Information confidential and (b) Recipient and\npersons to whom\nExhibit L-1 - Page 3\nsuch Confidential Information is disclosed are not obligated to keep confidential any terms, conditions or information that have\nbeen Publicly Disclosed.\n(2)\nRecipient hereby acknowledges, agrees and understands that the Confidential Information is confidential and proprietary\nbusiness, technical and/or financial information of Westinghouse, WECTEC and/or GPC, and the disclosure of Confidential\nInformation could cause substantial harm to the competitive and commercial interests of Westinghouse, WECTEC and/or GPC.\n(3)\nRecipient hereby agrees and confirms that Recipient will protect the confidentiality of such Confidential Information, including\nany information or analysis derived from it, and not disclose it to any third party, except to the individuals and entities under\nthe circumstances described below in this paragraph. Specifically, Recipient will not disclose nor release any Confidential\nInformation, to anyone either during or after the period of performance of the Matching Order other than:\n(a)\nIndividuals within Recipient's organization who are directly concerned with the performance of the Matching Order\nand who have executed an agreement in the same form as this Agreement or who are secretarial or word processing\npersonnel who Recipient has provided with the Confidential Information solely for the purpose of Recipient's\nperformance of the Matching Order;\n(b)\nOther individuals who are employees of the United States' government in connection with their work in relation to the\nDOE Borrowers' DOE Loan Guarantees for the Project; and\n(c)\nAs required by law, including without limitation pursuant to any direction or an order from a court or federal office\n(e.g., the Government Accountability Office) of competent jurisdiction, provided that Recipient shall provide written\nnotice to GPC, by email, fax or overnight courier at the addresses below or such other addresses as GPC may notify to\nRecipient in writing from time to time, in advance of any such disclosure SO as to allow GPC the opportunity to seek\nto limit the extent of disclosure of the Confidential Information and/or to seek a protective order or other appropriate\nremedy (and/or waive compliance with the provisions of this Agreement); and if such limitation or protective order or\nother appropriate remedy is not obtained before Recipient is legally required to produce such Confidential Information\n(or compliance with the provisions of this Agreement is waived), Recipient after consultation with GPC shall disclose\nonly the minimum amount of Confidential Information that Recipient in good faith and in its sole discretion believes\nis legally required.\nGeorgia Power Company\nExhibit L-1 - Page 4\n241 Ralph McGill Blvd.\nBIN 10240\nAtlanta, GA 30308\nAttention: Office of the General Counsel\nFax: 404-506-2725\nEmail: mmlackey@southernco.com\nWith copies to:\nBalch & Bingham LLP\n1710 Sixth Avenue North\nBirmingham, AL 35203-2015\nAttention: Stan Blanton, Partner\nFax: (205) 488-5879\nEmail: SBLANTON@balch.com\nWestinghouse Electric Company LLC\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Office of the Chief Legal Officer\nFacsimile: 724-940-8508\nEmail: sweenemt@westinghouse.com\nWECTEC Global Project Services, Inc.\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Office of the Chief Legal Officer\nFacsimile: 724-940-8508\nEmail: sweenemt@westinghouse.com\nGPC's agent, the Operator, will provide access to the Confidential Information on a secure confidential, password-protected\nelectronic data site (i.e., read-only access) (the "Restricted Data Site") that will allow Recipient to review the Confidential\nInformation on a need to know and use basis solely for the purpose of monitoring the Project for the DOE Borrowers' DOE\nLoan Guarantees (and no other guaranteed loans or related projects).\nB.\nGPC acknowledges that Recipient may be required under the terms of the Matching Order to prepare written summaries of the\nConfidential Information (the "Summaries") for review by DOE and such individuals as set forth in clause (3)(b) of paragraph A above. In\nRecipient's review of the Confidential Information, Recipient shall be entitled to prepare such written notes and analyses as Recipient shall deem\nappropriate for purposes of preparing the Summaries.\nC.\nIn the event that DOE, pursuant to its rights under the DOE Loan Guarantee Agreements, delivers a written notification to GPC\ndirecting GPC to deliver a copy of a\nExhibit L-1 - Page 5\ndocument constituting Confidential Information to one or more attorneys at [Norton Rose Fulbright US LP][Hunton Andrews Kurth LLP] (as\noutside counsel for DOE), GPC will, upon reasonable notice, deliver one copy of such Confidential Information (the "NRF {or Hunton} Copy")\nto Recipient. In the event of such delivery, Recipient agrees to hold the NRF {or Hunton} Copy in the strictest confidence and to maintain the\nsecrecy and/or nonpublic nature of the NRF {or Hunton} Copy. Recipient shall number each additional copy of the NRF {or Hunton} Copy,\nwhich shall be treated in the same manner as the NRF {or Hunton} Copy, and shall allow only those individuals identified in clause (1)(a) of\nparagraph A above to have access to the NRF {or Hunton} Copy or any copy thereof; provided that Recipient shall be permitted to disclose the\nNRF {or Hunton} Copy as required by law, including without limitation pursuant to any direction or an order from a court or federal office (e.g.,\nthe\nGovernment Accountability Office) of competent jurisdiction, provided that Recipient shall provide written notice to GPC in advance of any\nsuch disclosure in accordance with, and shall follow the further procedures set out in, clause (3)(c) of paragraph A above. Recipient shall\nprovide notice to GPC of the number of additional copies of the NRF {or Hunton} Copy that have been made.\nD.\nConsistent with subpart (g) of the Nondisclosure Acknowledgement executed at the request of DOE by [Recipient][individuals\nwithin Recipient's organization who are directly concerned with the performance of the Matching Order] ("Nondisclosure Acknowledgement"),\nRecipient acknowledges that the Confidential Information is Loan Guarantee Information and will be utilized in accordance with the task or\nsubtask assignment only and acknowledges that the disclosure of this Confidential Information is otherwise restricted by Westinghouse,\nWECTEC and/or GPC as submitters.\nE.\nRecipient hereby agrees that the representations and commitments made in subparts (a) and (h) of the Nondisclosure\nAcknowledgement extend to Confidential Information supplied by Westinghouse, WECTEC and/or GPC with respect to the use and review of\nthe Confidential Information.\nF.\nThis Agreement shall be governed in accordance with the laws of the State of New York without giving effect to any choice\nof\nlaw, provision, or rule (whether of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than\nNew York.\n[The remainder of this page is intentionally blank.]\nExhibit L-1 - Page 6\nACCEPTED AND AGREED\nBy:\nName:\nTitle:\nDate:\nACKNOWLEDGED AND AGREED\nGEORGIA POWER COMPANY\nBy:\nName:\nTitle:\nDate:\nExhibit L-1 - Page 7	Exhibit L-1\nto Amended and Restated Loan Guarantee Agreement\nFORM OF RESTRICTED DATA SITE NONDISCLOSURE AGREEMENT FOR OUTSIDE LEGAL COUNSEL\n[FORM OF] NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this “Agreement”) is dated\n, 20 and is between\n(“Recipient”) and Georgia Power\nCompany, a Georgia corporation (“GPC”).\nRecipient is providing advisory and support services to the Department of Energy (“DOE”), Office of the General Counsel, Loan\nPrograms Office, under Matching Order DEM001-09CF01015 (the “Matching Order”).\nIn order to allow the Recipient to review the following documents (the “Confidential Information”):\ni.\nthe Amended and Restated Services Agreement, between GPC, acting for itself and as agent for the other Owners (as\nsuch term is defined therein, the “Owners”), and Westinghouse Electric Company LLC (“Westinghouse”) and WECTEC Global Project\nServices, Inc. (“WECTEC” and, together with Westinghouse, collectively, the “Service Provider”), dated as of July 20, 2017, as it may\nbe amended from time to time, for Units 3 & 4 at the Vogtle Electric Generating Plant in Waynesboro, Georgia (the “Project”; such\nagreement, the “Services Agreement”);\nii.\nan executed copy of the IP License, between GPC, acting for itself and as agent for the other Owners, and the Service\nProvider, dated as of July 20, 2017, as it may be amended from time to time (the “IP License”);\niii.\nan executed copy of the Facility IP License in the Event of Triggering Event, between GPC, acting for itself and as\nagent for the other Owners, and the Service Provider, dated as of July 20, 2017, as it may be amended from time to time (the\n“Triggering Event License” and, together with the IP License, the “Facility Licenses”);\niv.\nthe Contract for AP1000 Fuel Fabrication, Design and Related Services, dated as of April 3, 2009, between Southern\nNuclear Operating Company, Inc. (the “Operator”), acting as the agent of Georgia Power Company, collectively as owner, and\nWestinghouse, as amended by Amendment No. 1 dated as of June 21, 2012, (as it may be further amended from time to time, the “Fuel\nFabrication Agreement”); any other contract entered into after the date hereof by GPC or the Operator for the supply of fuel assemblies\nand/or related required software for the Project, as it may be amended from time to time (each, a “Fuel Supply Agreement”); the\nAmended and Restated License Agreement dated February 9, 2012, between the Operator, for itself and as agent for Alabama Power\nCompany and Georgia Power Company, collectively, as licensee, and Westinghouse (as it may be amended from time to time, the\n“License Agreement”); the agreement (if any), to be entered into after the date of this Agreement by Westinghouse and the Owners or\nGPC (acting for itself and as agent for the other Owners) if the AP1000-compatible version of Best Estimate Analysis for Core\nOperation Nuclear -\nExhibit L-1\n- Page1\nDirect Margin Monitor System and its related deliverables to be used in the operation of the Project (the “BEACON-\nDMM Software”) is not otherwise provided for the Project, pursuant to which the Owners will acquire the BEACON-\nDMM Software including a license for the use thereof (as such agreement may be amended from time to time, the “BEACON\nSoftware Agreement”);\nv.\nany notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments\nwith respect to the foregoing, with respect to GPC, Oglethorpe Power Corporation, Municipal Electric Authority of Georgia, MEAG\nPower SPVJ, LLC, MEAG Power SPVM, LLC or MEAG Power SPVP, LLC (each a “DOE Borrower”), or the Operator or their\nparticipation in the Project, in each case that has, or could reasonably be expected to have, a Material Adverse Effect (as such term is\ndefined in the Amended and Restated Loan Guarantee Agreements by and between each DOE Borrower and DOE (the “DOE Loan\nGuarantee Agreements”)) or a material adverse effect on the ability of the Project to be completed or operated, only to the extent such\nitems contain Confidential and Proprietary Information as defined in the Services Agreement (“Confidential and Proprietary\nInformation”);\nvi.\nany notice and a copy of any of the following communications received by a DOE Borrower or the Operator from the\nNRC: (1) notice of a potential violation of severity level III or higher (or its equivalent in subsequent versions of the NRC Enforcement\nPolicy); (2) Red, Yellow or White NRC Inspection Finding (or its equivalent in subsequent versions of the Reactor Oversight Policy);\n(3) notice to stop work or shut down or show cause; (4) Demand for Information under 10 CFR § 50.54(f) or 10 CFR § 2.204; or (5) any\nother immediately effective, unilateral, docket-specific, non-routine communication requiring action by any licensee with respect to the\nProject, only to the extent such items contain Confidential and Proprietary Information;\nvii.\nany notice of any complaint, order, directive, claim, citation, designation or notice by any Governmental Authority (as\nsuch term is defined in the DOE Loan Guarantee Agreements) with respect to the Project received by a DOE Borrower or the Operator\nrelating to any actual or potential material non-compliance with its then-existing obligations under Environmental Laws (as such term is\ndefined in the DOE Loan Guarantee Agreements) and any written description of any steps that such DOE Borrower or the Operator is\ntaking and proposes to take with respect to the matters described in such notice, only to the extent such items contain Confidential and\nProprietary Information;\nviii.\nnotice and a copy of any stop work order issued by a DOE Borrower or the Operator with respect to any work on the\nProject, only to the extent such items contain Confidential and Proprietary Information;\nix.\nany notice of any termination, amendment or material waiver or breach of, or material notices and material\ncorrespondence with respect to, the Services Agreement, the Facility Licenses, the Fuel Fabrication Agreement, any other Fuel Supply\nAgreement, the BEACON Software Agreement (if any), or the License Agreement and any copy of any of the foregoing or any\nagreement, instrument or other document giving effect to any\nExhibit L-1\n- Page2\nTM\nTM\nTM\nof the foregoing, only to the extent such items contain Confidential and Proprietary Information;\nx.\nany notice of any event that constitutes an Event of Default, Potential Default, Mandatory Prepayment Event,\nPotential Mandatory Prepayment Event, Alternate Amortization Event or Potential Alternate Amortization Event (as such terms are\ndefined in the DOE Loan Guarantee Agreements) and any written description of any steps any DOE Borrower has taken or proposes to\ntake to remedy matters described in any such notice, only to the extent such items contain Confidential and Proprietary Information;\nxi.\nany notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments\nwith respect to the foregoing, with respect to any DOE Borrower or the Operator or their participation in the Project, in each case that\nhas resulted in, or any DOE Borrower believes will result in, Public Inquiries (as such term is defined in the DOE Loan Guarantee\nAgreements), only to the extent such items contain Confidential and Proprietary Information;\nxii.\nany lien waivers and releases, with respect to all work reflected in any invoice of the Service Provider and, in the case\nof the invoice for the final payment from the DOE Borrowers under the Services Agreement, the Service Provider’s affidavit, only to the\nextent such items contain Confidential and Proprietary Information; and\nxiii.\nany other notice, document or communication required to be delivered to DOE by the Operator or any DOE Borrower\npursuant to the Loan Guarantee Agreement, only to the extent such items contain Confidential and Proprietary Information.\nthe parties agree as follows.\nFor the purposes of this Agreement, “Confidential Information” includes the entirety of documents identified in i-xii above, but\nexcludes any terms, conditions or information that have been Publicly Disclosed (as defined herein) or which Recipient has been authorized in\nwriting by GPC to publicly disclose (except pursuant to clause (3) of paragraph A below). For purposes of this Agreement, “Publicly Disclosed”\nmeans information which has become generally available to the public other than as a result of disclosure by Recipient in violation of the terms\nof this Agreement.\nA.\nIn connection with Recipient’s participation in providing the advisory and support services to the DOE, Office of the General\nCounsel, Loan Programs Office, under the Matching Order:\n(1)\nRecipient acknowledges that (a) pursuant to the terms of the Services Agreement, the Fuel Fabrication Agreement and the\nLicense Agreement, respectively, GPC may not disclose the Confidential Information until and unless the persons to whom\nsuch Confidential Information is disclosed agrees to keep such Confidential Information confidential and (b) Recipient and\npersons to whom\nExhibit L-1\n- Page3\nsuch Confidential Information is disclosed are not obligated to keep confidential any terms, conditions or information that have\nbeen Publicly Disclosed.\n(2)\nRecipient hereby acknowledges, agrees and understands that the Confidential Information is confidential and proprietary\nbusiness, technical and/or financial information of Westinghouse, WECTEC and/or GPC, and the disclosure of Confidential\nInformation could cause substantial harm to the competitive and commercial interests of Westinghouse, WECTEC and/or GPC.\n(3)\nRecipient hereby agrees and confirms that Recipient will protect the confidentiality of such Confidential Information, including\nany information or analysis derived from it, and not disclose it to any third party, except to the individuals and entities under\nthe circumstances described below in this paragraph. Specifically, Recipient will not disclose nor release any Confidential\nInformation, to anyone either during or after the period of performance of the Matching Order other than:\n(a)\nIndividuals within Recipient’s organization who are directly concerned with the performance of the Matching Order\nand who have executed an agreement in the same form as this Agreement or who are secretarial or word processing\npersonnel who Recipient has provided with the Confidential Information solely for the purpose of Recipient’s\nperformance of the Matching Order;\n(b)\nOther individuals who are employees of the United States’ government in connection with their work in relation to the\nDOE Borrowers’ DOE Loan Guarantees for the Project; and\n(c)\nAs required by law, including without limitation pursuant to any direction or an order from a court or federal office\n(e.g ., the Government Accountability Office) of competent jurisdiction, provided that Recipient shall provide written\nnotice to GPC, by email, fax or overnight courier at the addresses below or such other addresses as GPC may notify to\nRecipient in writing from time to time, in advance of any such disclosure so as to allow GPC the opportunity to seek\nto limit the extent of disclosure of the Confidential Information and/or to seek a protective order or other appropriate\nremedy (and/or waive compliance with the provisions of this Agreement); and if such limitation or protective order or\nother appropriate remedy is not obtained before Recipient is legally required to produce such Confidential Information\n(or compliance with the provisions of this Agreement is waived), Recipient after consultation with GPC shall disclose\nonly the minimum amount of Confidential Information that Recipient in good faith and in its sole discretion believes\nis legally required.\nGeorgia Power Company\nExhibit L-1\n- Page4\n241 Ralph McGill Blvd.\nBIN 10240\nAtlanta, GA 30308\nAttention: Office of the General Counsel\nFax: 404-506-2725\nEmail: mmlackey@southernco.com\nWith copies to:\nBalch & Bingham LLP\n1710 Sixth Avenue North\nBirmingham, AL 35203-2015\nAttention: Stan Blanton, Partner\nFax: (205) 488-5879\nEmail: SBLANTON@balch.com\nWestinghouse Electric Company LLC\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Office of the Chief Legal Officer\nFacsimile: 724-940-8508\nEmail: sweenemt@westinghouse.com\nWECTEC Global Project Services, Inc.\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Office of the Chief Legal Officer\nFacsimile: 724-940-8508\nEmail: sweenemt@westinghouse.com\nGPC’s agent, the Operator, will provide access to the Confidential Information on a secure confidential, password-protected\nelectronic data site (i.e ., read-only access) (the “Restricted Data Site”) that will allow Recipient to review the Confidential\nInformation on a need to know and use basis solely for the purpose of monitoring the Project for the DOE Borrowers’ DOE\nLoan Guarantees (and no other guaranteed loans or related projects).\nB.\nGPC acknowledges that Recipient may be required under the terms of the Matching Order to prepare written summaries of the\nConfidential Information (the “Summaries”) for review by DOE and such individuals as set forth in clause (3)(b) of paragraph A above. In\nRecipient’s review of the Confidential Information, Recipient shall be entitled to prepare such written notes and analyses as Recipient shall deem\nappropriate for purposes of preparing the Summaries.\nC.\nIn the event that DOE, pursuant to its rights under the DOE Loan Guarantee Agreements, delivers a written notification to GPC\ndirecting GPC to deliver a copy of a\nExhibit L-1\n- Page5\ndocument constituting Confidential Information to one or more attorneys at [Norton Rose Fulbright US LLP][Hunton Andrews Kurth LLP] (as\noutside counsel for DOE), GPC will, upon reasonable notice, deliver one copy of such Confidential Information (the “NRF {or Hunton} Copy”)\nto Recipient. In the event of such delivery, Recipient agrees to hold the NRF {or Hunton} Copy in the strictest confidence and to maintain the\nsecrecy and/or nonpublic nature of the NRF {or Hunton} Copy. Recipient shall number each additional copy of the NRF {or Hunton} Copy,\nwhich shall be treated in the same manner as the NRF {or Hunton} Copy, and shall allow only those individuals identified in clause (1)(a) of\nparagraph A above to have access to the NRF {or Hunton} Copy or any copy thereof; provided that Recipient shall be permitted to disclose the\nNRF {or Hunton} Copy as required by law, including without limitation pursuant to any direction or an order from a court or federal office (e.g .,\nthe Government Accountability Office) of competent jurisdiction, provided that Recipient shall provide written notice to GPC in advance of any\nsuch disclosure in accordance with, and shall follow the further procedures set out in, clause (3)(c) of paragraph A above. Recipient shall\nprovide notice to GPC of the number of additional copies of the NRF {or Hunton} Copy that have been made.\nD.\nConsistent with subpart (g) of the Nondisclosure Acknowledgement executed at the request of DOE by [Recipient][individuals\nwithin Recipient’s organization who are directly concerned with the performance of the Matching Order] (“Nondisclosure Acknowledgement”),\nRecipient acknowledges that the Confidential Information is Loan Guarantee Information and will be utilized in accordance with the task or\nsubtask assignment only and acknowledges that the disclosure of this Confidential Information is otherwise restricted by Westinghouse,\nWECTEC and/or GPC as submitters.\nE.\nRecipient hereby agrees that the representations and commitments made in subparts (a) and (h) of the Nondisclosure\nAcknowledgement extend to Confidential Information supplied by Westinghouse, WECTEC and/or GPC with respect to the use and review of\nthe Confidential Information.\nF.\nThis Agreement shall be governed in accordance with the laws of the State of New York without giving effect to any choice of\nlaw, provision, or rule (whether of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than\nNew York.\n[The remainder of this page is intentionally blank.]\nExhibit L-1\n- Page6\nACCEPTED AND AGREED\nBy:\nName:\nTitle:\nDate:\nACKNOWLEDGED AND AGREED\nGEORGIA POWER COMPANY\nBy:\nName:\nTitle:\nDate:\nExhibit L-1\n- Page7
165f135065019f91ba811afed00cbc8e.pdf	effective_date jurisdiction party term	EX-3 3 d93800dex3.htm EX-3\nExhibit 3\nLOGO\nMUTUAL CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT\nThis Agreement is made on August 10, 2015 by and between DAEGIS, INC., having a principal place of business at 600 East Las Colinas\nBlvd., Suite 1500, Irving, Texas 75039 and Open Text Corporation, having a principal place of business at 275 Frank Tompa Drive, Waterloo,\nOntario, Canada (“you” or the “Other Party”).\nYou have requested information regarding Daegis Inc., a Delaware corporation (collectively, with its subsidiaries, the “Company”) with\nrespect to a proposed Transaction as detailed below. Such a Transaction could include a possible purchase of all or a portion of the stock, assets\nor business of the Company, or any related transactions as may be mutually agreed to between you and the Company (each, a “Transaction”). In\nconnection with your consideration of any possible Transaction, the Company is prepared to furnish you with certain “Evaluation Material” (as\ndefined in Appendix A hereto) in accordance with the provisions of this agreement (the “Confidentiality Agreement”).\n1. Use of Evaluation Material.\nYou and each individual or entity you provide access to the Evaluation Material agree: (a) to use the Evaluation Material solely for the\npurpose of determining whether you wish to enter into any possible Transaction and the terms thereof, and (b) subject to the section captioned\n“Legally Required Disclosure” below, to keep the Evaluation Material strictly confidential, and not to disclose or use any of the Evaluation\nMaterial in any manner inconsistent with this Confidentiality Agreement; provided, however, that any of such information may be disclosed to\nyour Affiliates (as defined in Appendix A hereto) and the Representatives (as defined in Appendix A hereto) who need to know such information\nfor the sole purpose of helping you evaluate a possible Transaction. You agree to be responsible for any breach of this Confidentiality Agreement\nby any of your Affiliates and the Representatives.\n2. Non-Disclosure of Discussions.\nSubject to the section captioned “Legally Required Disclosure” below, you agree that you will not, and you will cause your Affiliates and\nthe Representatives not to disclose to any other Person (as defined in Appendix A hereto): (a) that Evaluation Material has been provided to you\nor any Permitted Co-bidder (as defined in Appendix A hereto) or that you or any Permitted Co-bidder have received or inspected any portion of\nthe Evaluation Material, (b) the existence or contents of this Confidentiality Agreement, (c) that discussions or negotiations concerning a possible\nTransaction are taking place or (d) any of the terms, conditions or other facts with respect thereto (including the status thereof), provided,\nhowever, that nothing contained herein shall be deemed to inhibit, impair or restrict you or the Representatives from having discussions or\nnegotiations with other Persons relating to potential financing in connection with the possible Transaction so long as each of such Person agrees\nin writing to be bound by the terms of this Confidentiality Agreement pursuant to a joinder agreement in a form reasonably acceptable to the\nCompany.\nLOGO\n3. Legally Required Disclosure.\nIf you or any of the Representatives are requested or required (in the opinion of your counsel) by order of court, legal proceedings,\nsubpoena, civil investigative demand, a governmental agency, a stock exchange or other similar process to disclose any of the Evaluation\nMaterial or any of the facts, disclosure of which is prohibited under this Confidentiality Agreement, you will provide the Company with prompt\nwritten notice of any such requests or requirements together with copies of the material proposed to be disclosed so that the Company may seek a\nprotective order or other appropriate remedy and/or waive compliance with the provisions of this Confidentiality Agreement. If, in the absence of\na protective order or other remedy or the receipt of a waiver by the Company, you or the Representatives are nonetheless legally compelled to\ndisclose the Evaluation Material or any of the facts, disclosure of which is prohibited under this Confidentiality Agreement, or otherwise be\nliable for contempt or suffer other censure or penalty, you or the Representatives in question may, without liability hereunder, disclose to such\nrequiring Person only that portion of such Evaluation Material or any such facts which you or the Representatives, on the advice of your counsel,\nare legally required to disclose, provided that you or the Representatives shall exercise reasonable efforts to preserve the privileged nature and\nconfidentiality of such Evaluation Material or any of such facts, including, without limitation, by cooperating with the Company to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the\nPerson receiving the material.\n4. Representations and Warranties.\n(a) You hereby represent and warrant that you are not acting as a broker for or representative of any other Person in connection with the\nTransaction, and are considering the Transaction only for your own account. Except with the prior written consent of the Company, you agree\nthat (a) you will not act as a joint bidder or co-bidder with any other Person with respect to the Transaction, other than Permitted Co-bidders, and\n(b) neither you nor any of the Representatives (acting on behalf of you or your Affiliates) will enter into any discussions, negotiations,\nagreements, arrangements or understandings (whether written or oral) with any other Person regarding the Transaction, other than the Company\nand its representatives.\n(b) You hereby represent and warrant that neither you nor any of your Affiliates or the Representatives is party to any agreement,\narrangement or understanding (whether written or oral) that would restrict the ability of any other Person to provide financing (debt, equity or\notherwise) to any other Person for the Transaction or any similar transaction, and you hereby agree that neither you nor any of your Affiliates or\nthe Representatives will directly or indirectly restrict the ability of any other Person to provide any such financing.\n(c) Notwithstanding anything to the contrary contained herein, without the prior written consent of the Company, you agree that neither\nyou, your Affiliates, nor any of your or the Representatives will disclose any Evaluation Material to any actual or potential sources of financing\n(debt, equity or otherwise), other than (a) bona fide third party institutional lenders who are or may be engaged to provide debt financing to you\nor your Affiliates or (b) Permitted Co-bidders.\nLOGO\n5. Return or Destruction of Evaluation Material.\nIf you decide that you do not wish to proceed with a possible Transaction, you will promptly inform the Company of this decision. In that\ncase, or at any time upon the written request of the Company for any reason, you will, and will cause your Affiliates and the Representatives to,\nwithin ten (10) days after the request, destroy or return all Evaluation Material and no copy, extract, or other reproductions thereof (including\nelectronic copies) shall be retained. No such termination will affect your obligations hereunder or those of the Representatives. If requested by\nthe Company, you will, and will cause the Representatives to, provide written certification to the Company that all such material (including\nelectronic copies) has been returned or destroyed in compliance with this Confidentiality Agreement. Notwithstanding the return or destruction\nof the Evaluation Material, you and the Representatives shall continue to be bound by their obligations of confidentiality and other obligations\nhereunder.\n6. No Solicitation.\nFor a period of one (1) year following the date of this Confidentiality Agreement, you will not, directly or indirectly, solicit for employment\nany officer, director, or employee of the Company or any of its subsidiaries or divisions in an executive or management level position or who is\notherwise considered by the Company (in its sole discretion) to be a key employee, in each case, with whom you have had contact or became\nknown to you in connection with your considerations of a Transaction, except that you shall not be deemed to be in violation of this provision as\na result of any such employee who: (i) initiates discussions regarding such employment without any direct or indirect solicitation by you or\n(ii) responds to any public advertisement or search firm communications that are not directed specifically to any of the Persons described herein.\n7. Maintaining Privileges.\nIf any Evaluation Material (including Evaluation Material related to pending or threatened litigation) includes materials or information\nsubject to the attorney-client privilege, work product doctrine or any other applicable privilege, you understand and agree that you and the\nCompany have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of each party to\nthis Confidentiality Agreement that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality\nof such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All\nEvaluation Material provided to you that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege shall remain entitled to such protection under these privileges, this Confidentiality Agreement, and under the joint defense doctrine.\n8. Not a Transaction Agreement.\nYou understand and agree that no contract or agreement providing for a Transaction shall be deemed to exist between you and the\nCompany unless and until you and the Company execute and deliver a final definitive agreement relating to a Transaction (a “Transaction\nAgreement”), and you hereby waive, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a\nTransaction unless and until you and the Company shall have executed and delivered a Transaction\nLOGO\nAgreement. You also agree that, unless and until you and the Company shall have executed and delivered a Transaction Agreement, neither you\nnor the Company will be under any legal obligation of any kind whatsoever with respect to such Transaction by virtue of this Confidentiality\nAgreement except for the matters specifically agreed to herein. You further acknowledge and agree that the Company reserves the right, in its\nsole discretion, to reject any proposals made by you, your Affiliates or any of the Representatives with regard to a Transaction, and to terminate\ndiscussion and negotiations with you at any time and for any reason or no reason. You understand that the Company shall be free to establish and\nchange any process or procedure with respect to any possible Transaction as the Company in its sole discretion shall determine (including,\nwithout limitation, negotiating with any other interested party and entering into a final definitive agreement relating to a Transaction with any\nother party without prior notice to you or any other Person).\n9. No Representations or Warranties; No Obligation to Disclose.\nYou understand and acknowledge that the Company and its Affiliates and representatives have made and make no representation hereunder,\nexpress or implied, as to the accuracy or completeness of the Evaluation Materials, expressly disclaim any and all liability for the information\ncontained in or omitted from the Evaluation Material furnished by or on behalf of the Company and shall have no liability to you, your Affiliates\nor the Representatives or any other Person relating to or resulting from the use of the Evaluation Material or any errors therein or omissions\ntherefrom. The parties agree that the Company will only be liable for any representations or warranties which are made in a Transaction\nAgreement, when, as, and if executed and delivered, and subject to such limitations and restrictions as may be specified therein. Nothing in this\nConfidentiality Agreement shall be construed as obligating the Company to provide, or to continue to provide, any information to any Person. It\nis expected that you will conduct your own independent investigation of the Company and rely upon such investigation in making an investment\ndecision regarding the Company.\n10. Remedies.\nIt is understood and agreed that money damages would not be a sufficient remedy for any breach of this Confidentiality Agreement by you,\nyour Affiliates or the Representatives, and that the Company shall be entitled to equitable relief, including injunction and specific performance,\nas a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach of this\nConfidentiality Agreement and shall be in addition to all other remedies available at law or equity to the Company.\n11. Severability.\nIf any term, provision, covenant or restriction contained in this Confidentiality Agreement is held by any court of competent jurisdiction to\nbe invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Confidentiality Agreement\nshall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be\nunenforceable by reason of its extent, duration, scope or otherwise, then the parties intend and hereby request that the court or other authority\nmaking that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and\nenforce them in their modified form for all purposes of this Confidentiality Agreement.\nLOGO\n12. Term.\nUnless explicitly stated otherwise herein, this Confidentiality Agreement will terminate two (2) years from the date hereof and be governed\nby Texas law.\n13. Modifications and Waiver.\nNo provision of this Confidentiality Agreement can be waived or amended in favor of the parties hereto except by written consent of the\nother party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either\nparty hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof\npreclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n14. Repositories.\nThe terms of this Confidentiality Agreement shall control over any additional purported confidentiality requirements imposed by any\noffering memorandum, web-based database or similar repository of Evaluation Material to which the you or any of the Representatives is granted\naccess in connection with the evaluation, negotiation or consummation of the Transaction, notwithstanding acceptance of such an offering\nmemorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that its confidentiality obligations with respect to Evaluation Material are exclusively\ngoverned by this Agreement and may not be enlarged except by a written agreement that is hereafter executed by each of the parties hereto.\n15. Entire Agreement.\nThis Confidentiality Agreement contains the entire agreement between the parties hereto regarding the subject matter hereof and\nsupersedes all prior agreements, understandings, arrangements and discussions between the parties hereto regarding such subject matter.\nIf you are in agreement with the foregoing, please sign and return one copy of this Confidentiality Agreement, it being understood that all\ncounterpart copies will constitute but one agreement with respect to the subject matter hereof.\nLOGO\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.\n“Company”\n“Other Party”\nDAEGIS, INC.\nOPEN TEXT CORPORATION\nBy: /s/ Timothy P. Bacci\nBy: /s/ Gordon Davies\nName: Timothy P. Bacci\nName: Gordon Davies\nTitle: President & CEO\nTitle: CLO and Corporate Secretary\nLOGO\nAppendix A\nDefinitions.\n(a) The term “Affiliate” shall have the meaning provided such term in the Securities Exchange Act of 1934 Act, as amended (the “1934 Act”)\nand, for avoidance of doubt, includes your subsidiaries and Affiliates.\n(b) The term “Evaluation Material” means any and all information (whether written, oral or electronic), data, documents, agreements, files\nand other materials, whether disclosed orally or stored in written, electronic or other form or media, which is obtained from or disclosed by the\nCompany, or its Representatives or Affiliates before or after the date hereof regarding the Company, including, without limitation, information\nconcerning the Company’s business, financial condition, operations, prospects, assets and liabilities, and all notes, reports, forecasts, analyses,\ncompilations, studies, interpretations or other documents prepared by you or on your behalf, (collectively, “Notes”) which contains or is based\nupon, in whole or in part, the Evaluation Material.\nThis Confidentiality Agreement shall be inoperative as to particular portions of the Evaluation Material if such information (i) is or\nbecomes generally available to the public other than as a result of a direct or indirect disclosure by you, your Affiliates or the Representatives in\nbreach of this Confidentiality Agreement, (ii) was within your possession, as evidenced by written records, prior to its being furnished to you by\nthe Company or its representatives, provided that the source of such information was not bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such information, or (iii) is or becomes available to\nyou on a non-confidential basis from a source other than the Company or its Representatives, provided that such source is not bound by a\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such\ninformation.\n(c) The term “Permitted Co-bidder” means any Person (and any Affiliates of such Person) who may invest in the Transaction on a side-by-\nside basis with you, if such Person (or its Affiliate) (i) has executed its own confidentiality agreement with the Company or is one of your\nAffiliates and (ii) is listed on Exhibit A.\n(d) The term “Person” means an individual, corporation, partnership (whether general or limited), company, joint venture, unincorporated\norganization, limited liability company or partnership, sole proprietorship, association, bank, trust company or trust, whether or not legal entities,\nthe media, or any governmental entity or agency or political subdivision thereof.\n(e) The term “Representatives” shall include your and your Affiliates’ officers, directors, employees, managing members, general partners,\nadvisors, agents and consultants (including attorneys, financial advisors and accountants) and lenders.\nLOGO	EX-3 3 d93800dex3.htm EX-3\nExhibit 3\n».LOGO\nMUTUAL CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT\nThis Agreement is made on August 10, 2015 by and between DAEGIS, INC., having a principal place of business at 600 East Las Colinas\nBlvd., Suite 1500, Irving, Texas 75039 and Open Text Corporation, having a principal place of business at 275 Frank Tompa Drive, Waterloo,\nOntario, Canada (“you” or the “Other Party”).\nYou have requested information regarding Daegis Inc., a Delaware corporation (collectively, with its subsidiaries, the “Company”) with\nrespect to a proposed Transaction as detailed below. Such a Transaction could include a possible purchase of all or a portion of the stock, assets\nor business of the Company, or any related transactions as may be mutually agreed to between you and the Company (each, a “Transaction”). In\nconnection with your consideration of any possible Transaction, the Company is prepared to furnish you with certain “Evaluation Material” (as\ndefined in Appendix A hereto) in accordance with the provisions of this agreement (the “Confidentiality Agreement”).\n1. Use of Evaluation Material.\nYou and each individual or entity you provide access to the Evaluation Material agree: (a) to use the Evaluation Material solely for the\npurpose of determining whether you wish to enter into any possible Transaction and the terms thereof, and (b) subject to the section captioned\n“Legally Required Disclosure” below, to keep the Evaluation Material strictly confidential, and not to disclose or use any of the Evaluation\nMaterial in any manner inconsistent with this Confidentiality Agreement; provided, however, that any of such information may be disclosed to\nyour Affiliates (as defined in Appendix A hereto) and the Representatives (as defined in Appendix A hereto) who need to know such information\nfor the sole purpose of helping you evaluate a possible Transaction. You agree to be responsible for any breach of this Confidentiality Agreement\nby any of your Affiliates and the Representatives.\n2. Non-Disclosure of Discussions.\nSubject to the section captioned “Legally Required Disclosure” below, you agree that you will not, and you will cause your Affiliates and\nthe Representatives not to disclose to any other Person (as defined in Appendix A hereto): (a) that Evaluation Material has been provided to you\nor any Permitted Co-bidder (as defined in Appendix A hereto) or that you or any Permitted Co-bidder have received or inspected any portion of\nthe Evaluation Material, (b) the existence or contents of this Confidentiality Agreement, (c) that discussions or negotiations concerning a possible\nTransaction are taking place or (d) any of the terms, conditions or other facts with respect thereto (including the status thereof), provided,\nhowever, that nothing contained herein shall be deemed to inhibit, impair or restrict you or the Representatives from having discussions or\nnegotiations with other Persons relating to potential financing in connection with the possible Transaction so long as each of such Person agrees\nin writing to be bound by the terms of this Confidentiality Agreement pursuant to a joinder agreement in a form reasonably acceptable to the\nCompany.\n».LOGO\n3.  Legally Required Disclosure.\nIf you or any of the Representatives are requested or required (in the opinion of your counsel) by order of court, legal proceedings,\nsubpoena, civil investigative demand, a governmental agency, a stock exchange or other similar process to disclose any of the Evaluation\nMaterial or any of the facts, disclosure of which is prohibited under this Confidentiality Agreement, you will provide the Company with prompt\nwritten notice of any such requests or requirements together with copies of the material proposed to be disclosed so that the Company may seek a\nprotective order or other appropriate remedy and/or waive compliance with the provisions of this Confidentiality Agreement. If, in the absence of\na protective order or other remedy or the receipt of a waiver by the Company, you or the Representatives are nonetheless legally compelled to\ndisclose the Evaluation Material or any of the facts, disclosure of which is prohibited under this Confidentiality Agreement, or otherwise be\nliable for contempt or suffer other censure or penalty, you or the Representatives in question may, without liability hereunder, disclose to such\nrequiring Person only that portion of such Evaluation Material or any such facts which you or the Representatives, on the advice of your counsel,\nare legally required to disclose, provided that you or the Representatives shall exercise reasonable efforts to preserve the privileged nature and\nconfidentiality of such Evaluation Material or any of such facts, including, without limitation, by cooperating with the Company to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the\nPerson receiving the material.\n4. Representations and Warranties.\n(a) You hereby represent and warrant that you are not acting as a broker for or representative of any other Person in connection with the\nTransaction, and are considering the Transaction only for your own account. Except with the prior written consent of the Company, you agree\nthat (a) you will not act as a joint bidder or co-bidder with any other Person with respect to the Transaction, other than Permitted Co-bidders, and\n(b) neither you nor any of the Representatives (acting on behalf of you or your Affiliates) will enter into any discussions, negotiations,\nagreements, arrangements or understandings (whether written or oral) with any other Person regarding the Transaction, other than the Company\nand its representatives.\n(b) You hereby represent and warrant that neither you nor any of your Affiliates or the Representatives is party to any agreement,\narrangement or understanding (whether written or oral) that would restrict the ability of any other Person to provide financing (debt, equity or\notherwise) to any other Person for the Transaction or any similar transaction, and you hereby agree that neither you nor any of your Affiliates or\nthe Representatives will directly or indirectly restrict the ability of any other Person to provide any such financing.\n(c) Notwithstanding anything to the contrary contained herein, without the prior written consent of the Company, you agree that neither\nyou, your Affiliates, nor any of your or the Representatives will disclose any Evaluation Material to any actual or potential sources of financing\n(debt, equity or otherwise), other than (a) bona fide third party institutional lenders who are or may be engaged to provide debt financing to you\nor your Affiliates or (b) Permitted Co-bidders.\n».LOGO\n5. Return or Destruction of Evaluation Material.\nIf you decide that you do not wish to proceed with a possible Transaction, you will promptly inform the Company of this decision. In that\ncase, or at any time upon the written request of the Company for any reason, you will, and will cause your Affiliates and the Representatives to,\nwithin ten (10) days after the request, destroy or return all Evaluation Material and no copy, extract, or other reproductions thereof (including\nelectronic copies) shall be retained. No such termination will affect your obligations hereunder or those of the Representatives. If requested by\nthe Company, you will, and will cause the Representatives to, provide written certification to the Company that all such material (including\nelectronic copies) has been returned or destroyed in compliance with this Confidentiality Agreement. Notwithstanding the return or destruction\nof the Evaluation Material, you and the Representatives shall continue to be bound by their obligations of confidentiality and other obligations\nhereunder.\n6. No Solicitation.\nFor a period of one (1) year following the date of this Confidentiality Agreement, you will not, directly or indirectly, solicit for employment\nany officer, director, or employee of the Company or any of its subsidiaries or divisions in an executive or management level position or who is\notherwise considered by the Company (in its sole discretion) to be a key employee, in each case, with whom you have had contact or became\nknown to you in connection with your considerations of a Transaction, except that you shall not be deemed to be in violation of this provision as\na result of any such employee who: (i) initiates discussions regarding such employment without any direct or indirect solicitation by you or\n(ii) responds to any public advertisement or search firm communications that are not directed specifically to any of the Persons described herein.\n7.  Maintaining Privileges.\nIf any Evaluation Material (including Evaluation Material related to pending or threatened litigation) includes materials or information\nsubject to the attorney-client privilege, work product doctrine or any other applicable privilege, you understand and agree that you and the\nCompany have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of each party to\nthis Confidentiality Agreement that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality\nof such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All\nEvaluation Material provided to you that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege shall remain entitled to such protection under these privileges, this Confidentiality Agreement, and under the joint defense doctrine.\n8. Not a Transaction Agreement.\nYou understand and agree that no contract or agreement providing for a Transaction shall be deemed to exist between you and the\nCompany unless and until you and the Company execute and deliver a final definitive agreement relating to a Transaction (a “Transaction\nAgreement”), and you hereby waive, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a\nTransaction unless and until you and the Company shall have executed and delivered a Transaction\n».LOGO\nAgreement. You also agree that, unless and until you and the Company shall have executed and delivered a Transaction Agreement, neither you\nnor the Company will be under any legal obligation of any kind whatsoever with respect to such Transaction by virtue of this Confidentiality\nAgreement except for the matters specifically agreed to herein. You further acknowledge and agree that the Company reserves the right, in its\nsole discretion, to reject any proposals made by you, your Affiliates or any of the Representatives with regard to a Transaction, and to terminate\ndiscussion and negotiations with you at any time and for any reason or no reason. You understand that the Company shall be free to establish and\nchange any process or procedure with respect to any possible Transaction as the Company in its sole discretion shall determine (including,\nwithout limitation, negotiating with any other interested party and entering into a final definitive agreement relating to a Transaction with any\nother party without prior notice to you or any other Person).\n9. No Representations or Warranties; No Obligation to Disclose.\nYou understand and acknowledge that the Company and its Affiliates and representatives have made and make no representation hereunder,\nexpress or implied, as to the accuracy or completeness of the Evaluation Materials, expressly disclaim any and all liability for the information\ncontained in or omitted from the Evaluation Material furnished by or on behalf of the Company and shall have no liability to you, your Affiliates\nor the Representatives or any other Person relating to or resulting from the use of the Evaluation Material or any errors therein or omissions\ntherefrom. The parties agree that the Company will only be liable for any representations or warranties which are made in a Transaction\nAgreement, when, as, and if executed and delivered, and subject to such limitations and restrictions as may be specified therein. Nothing in this\nConfidentiality Agreement shall be construed as obligating the Company to provide, or to continue to provide, any information to any Person. It\nis expected that you will conduct your own independent investigation of the Company and rely upon such investigation in making an investment\ndecision regarding the Company.\n10. Remedies.\nIt is understood and agreed that money damages would not be a sufficient remedy for any breach of this Confidentiality Agreement by you,\nyour Affiliates or the Representatives, and that the Company shall be entitled to equitable relief, including injunction and specific performance,\nas a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach of this\nConfidentiality Agreement and shall be in addition to all other remedies available at law or equity to the Company.\n11. Severability.\nIf any term, provision, covenant or restriction contained in this Confidentiality Agreement is held by any court of competent jurisdiction to\nbe invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Confidentiality Agreement\nshall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be\nunenforceable by reason of its extent, duration, scope or otherwise, then the parties intend and hereby request that the court or other authority\nmaking that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and\nenforce them in their modified form for all purposes of this Confidentiality Agreement.\n».LOGO\n12. Term.\nUnless explicitly stated otherwise herein, this Confidentiality Agreement will terminate two (2) years from the date hereof and be governed\nby Texas law.\n13. Modifications and Waiver.\nNo provision of this Confidentiality Agreement can be waived or amended in favor of the parties hereto except by written consent of the\nother party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either\nparty hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof\npreclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n14. Repositories.\nThe terms of this Confidentiality Agreement shall control over any additional purported confidentiality requirements imposed by any\noffering memorandum, web-based database or similar repository of Evaluation Material to which the you or any of the Representatives is granted\naccess in connection with the evaluation, negotiation or consummation of the Transaction, notwithstanding acceptance of such an offering\nmemorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that its confidentiality obligations with respect to Evaluation Material are exclusively\ngoverned by this Agreement and may not be enlarged except by a written agreement that is hereafter executed by each of the parties hereto.\n15. Entire Agreement.\nThis Confidentiality Agreement contains the entire agreement between the parties hereto regarding the subject matter hereof and\nsupersedes all prior agreements, understandings, arrangements and discussions between the parties hereto regarding such subject matter.\nIf you are in agreement with the foregoing, please sign and return one copy of this Confidentiality Agreement, it being understood that all\ncounterpart copies will constitute but one agreement with respect to the subject matter hereof.\n».LOGO\nIN WITNESS WHEREOQF, the parties have executed this Agreement as of the date first written above.\n“Company” “Other Party”\nDAEGIS, INC. OPEN TEXT CORPORATION\nBy:  /s/ Timothy P. Bacci By: /s/ Gordon Davies\nName: Timothy P. Bacci Name: Gordon Davies\nTitle: President & CEO Title: CLO and Corporate Secretary\n».LOGO\nAppendix A\nDefinitions.\n(@) The term “Affiliate” shall have the meaning provided such term in the Securities Exchange Act of 1934 Act, as amended (the “1934 Act”)\nand, for avoidance of doubt, includes your subsidiaries and Affiliates.\n(b) The term “Evaluation Material” means any and all information (whether written, oral or electronic), data, documents, agreements, files\nand other materials, whether disclosed orally or stored in written, electronic or other form or media, which is obtained from or disclosed by the\nCompany, or its Representatives or Affiliates before or after the date hereof regarding the Company, including, without limitation, information\nconcerning the Company’s business, financial condition, operations, prospects, assets and liabilities, and all notes, reports, forecasts, analyses,\ncompilations, studies, interpretations or other documents prepared by you or on your behalf, (collectively, “Notes”) which contains or is based\nupon, in whole or in part, the Evaluation Material.\nThis Confidentiality Agreement shall be inoperative as to particular portions of the Evaluation Material if such information (i) is or\nbecomes generally available to the public other than as a result of a direct or indirect disclosure by you, your Affiliates or the Representatives in\nbreach of this Confidentiality Agreement, (ii) was within your possession, as evidenced by written records, prior to its being furnished to you by\nthe Company or its representatives, provided that the source of such information was not bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such information, or (iii) is or becomes available to\nyou on a non-confidential basis from a source other than the Company or its Representatives, provided that such source is not bound by a\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such\ninformation.\n(c) The term “Permitted Co-bidder” means any Person (and any Affiliates of such Person) who may invest in the Transaction on a side-by-\nside basis with you, if such Person (or its Affiliate) (i) has executed its own confidentiality agreement with the Company or is one of your\nAffiliates and (ii) is listed on Exhibit A.\n(d) The term “Person” means an individual, corporation, partnership (whether general or limited), company, joint venture, unincorporated\norganization, limited liability company or partnership, sole proprietorship, association, bank, trust company or trust, whether or not legal entities,\nthe media, or any governmental entity or agency or political subdivision thereof.\n(e) The term “Representatives” shall include your and your Affiliates’ officers, directors, employees, managing members, general partners,\nadvisors, agents and consultants (including attorneys, financial advisors and accountants) and lenders.\n».LOGO	EX-3 3 d93800dex3.htm EX-3\nExhibit 3\nLOGO\nMUTUAL CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT\nThis Agreement is made on August 10, 2015 by and between DAEGIS, INC., having a principal place of business at 600 East Las Colinas\nBlvd., Suite 1500, Irving, Texas 75039 and Open Text Corporation, having a principal place of business at 275 Frank Tompa Drive, Waterloo,\nOntario, Canada ("you" or the "Other Party").\nYou have requested information regarding Daegis Inc., a Delaware corporation (collectively, with its subsidiaries, the "Company") with\nrespect\nto a proposed Transaction as detailed below. Such a Transaction could include a possible purchase of all or a portion of the stock, assets\nor business of the Company, or any related transactions as may be mutually agreed to between you and the Company (each, a "Transaction").\nIn\nconnection with your consideration of any possible Transaction, the Company is prepared to furnish you with certain "Evaluation Material" (as\ndefined in Appendix A hereto) in accordance with the provisions of this agreement (the "Confidentiality Agreement").\n1.\nUse of Evaluation Material.\nYou and each individual or entity you provide access to the Evaluation Material agree: (a) to use the Evaluation Material solely for the\npurpose of determining whether you wish to enter into any possible Transaction and the terms thereof, and (b) subject to the section captioned\n"Legally Required Disclosure" below, to keep the Evaluation Material strictly confidential, and not to disclose or use any of the Evaluation\nMaterial in any manner inconsistent with this Confidentiality Agreement; provided, however, that any of such information may be disclosed to\nyour Affiliates (as defined in Appendix A hereto) and the Representatives (as defined in Appendix A hereto) who need to know such information\nfor the sole purpose of helping you evaluate a possible Transaction You agree to be responsible for any breach of this Confidentiality Agreement\nby any of your Affiliates and the Representatives.\n2.\nNon-Disclosure of Discussions.\nSubject to the section captioned "Legally Required Disclosure" below, you agree that you will not, and you will cause your Affiliates and\nthe Representatives not to disclose to any other Person (as defined in Appendix A hereto): (a) that Evaluation Material has been provided to you\nor any Permitted Co-bidder (as defined in Appendix A hereto) or that you or any Permitted Co-bidder have received or inspected any portion of\nthe Evaluation Material, (b) the existence or contents of this Confidentiality Agreement, (c) that discussions or negotiations concerning a possible\nTransaction are taking place or (d) any of the terms, conditions or other facts with respect thereto (including the status thereof), provided,\nhowever, that nothing contained herein shall be deemed to inhibit, impair or restrict you or the Representatives from having discussions or\nnegotiations with other Persons relating to potential financing in connection with the possible Transaction so long as each of such Person agrees\nin writing to be bound by the terms of this Confidentiality Agreement pursuant to a joinder agreement in a form reasonably acceptable to the\nCompany.\nLOGO\n3.\nLegally Required Disclosure.\nIf you or any of the Representatives are requested or required (in the opinion of your counsel) by order of court, legal proceedings,\nsubpoena, civil investigative demand, a governmental agency, a stock exchange or other similar process to disclose any of the Evaluation\nMaterial or any of the facts, disclosure of which is prohibited under this Confidentiality Agreement, you will provide the Company with prompt\nwritten notice of any such requests or requirements together with copies of the material proposed to be disclosed so that the Company may seek a\nprotective order or other appropriate remedy and/or waive compliance with the provisions of this Confidentiality Agreement. If, in the absence of\na protective order or other remedy or the receipt of a waiver by the Company, you or the Representatives are nonetheless legally compelled to\ndisclose the Evaluation Material or any of the facts, disclosure of which is prohibited under this Confidentiality Agreement, or otherwise be\nliable for contempt or suffer other censure or penalty, you or the Representatives in question may, without liability hereunder, disclose to such\nrequiring Person only that portion of such Evaluation Material or any such facts which you or the Representatives, on the advice of your counsel,\nare legally required to disclose, provided that you or the Representatives shall exercise reasonable efforts to preserve the privileged nature and\nconfidentiality of such Evaluation Material or any of such facts, including, without limitation, by cooperating with the Company to obtain an\nappropriate protective order or other reliable assurance that confidentia treatment will be accorded such Evaluation Material or such facts by the\nPerson receiving the material.\n4.\nRepresentations and Warranties.\n(a) You hereby represent and warrant that you are not acting as a broker for or representative of any other Person in connection with the\nTransaction, and are considering the Transaction only for your own account. Except with the prior written consent of the Company, you agree\nthat (a) you will not act as a joint bidder or co-bidder with any other Person with respect to the Transaction, other than Permitted Co-bidders, and\n(b) neither you nor any of the Representatives (acting on behalf of you or your Affiliates) will enter into any discussions, negotiations,\nagreements, arrangements or understandings (whether written or oral) with any other Person regarding the Transaction, other than the Company\nand its representatives.\n(b) You hereby represent and warrant that neither you nor any of your Affiliates or the Representatives is party to any agreement,\narrangement or understanding (whether written or oral) that would restrict the ability of any other Person to provide financing (debt, equity or\notherwise) to any other Person for the Transaction or any similar transaction, and you hereby agree that neither you nor any of your Affiliates or\nthe Representatives will directly or indirectly restrict the ability of any other Person to provide any such financing.\n(c) Notwithstanding anything to the contrary contained herein, without the prior written consent of the Company, you agree that neither\nyou, your Affiliates, nor any of your or the Representatives will disclose any Evaluation Material to any actual or potential sources of financing\n(debt, equity or otherwise), other than (a) bona fide third party institutional lenders who are or may be engaged to provide debt financing to you\nor your Affiliates or (b) Permitted Co-bidders.\nLOGO\n5.\nReturn or Destruction of Evaluation Material.\nIf you decide that you do not wish to proceed with a possible Transaction, you will promptly inform the Company of this decision. In that\ncase, or at any time upon the written request of the Company for any reason, you will, and will cause your Affiliates and the Representatives to,\nwithin ten (10) days after the request, destroy or return all Evaluation Material and no copy, extract, or other reproductions thereof (including\nelectronic copies) shall be retained. No such termination will affect your obligations hereunder or those of the Representatives. If requested\nby\nthe Company, you will, and will cause the Representatives to, provide written certification to the Company that all such material (including\nelectronic copies) has been returned or destroyed in compliance with this Confidentiality Agreement. Notwithstanding the return or destruction\nof the Evaluation Material, you and the Representatives shall continue to be bound by their obligations of confidentiality and other obligations\nhereunder.\n6.\nNo Solicitation.\nFor a period of one (1) year following the date of this Confidentiality Agreement, you will not, directly or indirectly, solicit for employment\nany officer, director, or employee of the Company or any of its subsidiaries or divisions in an executive or management level position or who is\notherwise considered by the Company (in its sole discretion) to be a key employee, in each case, with whom you have had contact or became\nknown to you in connection with your considerations of a Transaction, except that you shall not be deemed to be in violation of this provision as\na result of any such employee who: (i) initiates discussions regarding such employment without any direct or indirect solicitation by you\nor\n(ii) responds to any public advertisement or search firm communications that are not directed specifically to any of the Persons described herein.\n7.\nMaintaining Privileges.\nIf any Evaluation Material (including Evaluation Material related to pending or threatened litigation) includes materials or information\nsubject to the attorney-client privilege, work product doctrine or any other applicable privilege, you understand and agree that you and the\nCompany have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of each party to\nthis Confidentiality Agreement that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality\nof such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All\nEvaluation Material provided to you that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege shall remain entitled to such protection under these privileges, this Confidentiality Agreement, and under the joint defense doctrine.\n8.\nNot a Transaction Agreement.\nYou understand and agree that no contract or agreement providing for a Transaction shall be deemed to exist between you and the\nCompany unless and until you and the Company execute and deliver a final definitive agreement relating to a Transaction (a "Transaction\nAgreement"), and you hereby waive, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a\nTransaction unless and until you and the Company shall have executed and delivered a Transaction\nLoGo\nAgreement. You also agree that, unless and until you and the Company shall have executed and delivered a Transaction Agreement, neither you\nnor the Company will be under any legal obligation of any kind whatsoever with respect to such Transaction by virtue of this Confidentiality\nAgreement except for the matters specifically agreed to herein. You further acknowledge and agree that the Company reserves the right, in its\nsole discretion, to reject any proposals made by you, your Affiliates or any of the Representatives with regard to a Transaction, and to terminate\ndiscussion and negotiations with you at any time and for any reason or no reason. You understand that the Company shall be free to establish and\nchange any process or procedure with respect to any possible Transaction as the Company in its sole discretion shall determine (including,\nwithout limitation, negotiating with any other interested party and entering into a final definitive agreement relating to a Transaction with any\nother party without prior notice to you or any other Person).\n9.\nNo Representations or Warranties; No Obligation to Disclose.\nYou understand and acknowledge that the Company and its Affiliates and representatives have made and make no representation hereunder,\nexpress or implied, as to the accuracy or completeness of the Evaluation Materials, expressly disclaim any and all liability for the information\ncontained in or omitted from the Evaluation Material furnished by or on behalf of the Company and shall have no liability to you, your Affiliates\nor the Representatives or any other Person relating to or resulting from the use of the Evaluation Material or any errors therein or omissions\ntherefrom. The parties agree that the Company will only be liable for any representations or warranties which are made in a Transaction\nAgreement, when, as, and if executed and delivered, and subject to such limitations and restrictions as may be specified therein. Nothing in this\nConfidentiality Agreement shall be construed as obligating the Company to provide, or to continue to provide, any information to any Person. It\nis expected that you will conduct your own independent investigation of the Company and rely upon such investigation in making an investment\ndecision regarding the Company.\n10. Remedies.\nIt is understood and agreed that money damages would not be a sufficient remedy for any breach of this Confidentiality Agreement by you,\nyour Affiliates or the Representatives, and that the Company shall be entitled to equitable relief, including injunction and specific performance,\nas a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach of this\nConfidentiality Agreement and shall be in addition to all other remedies available at law or equity to the Company.\n11. Severability.\nIf any term, provision, covenant or restriction contained in this Confidentiality Agreement is held by any court of competent jurisdiction to\nbe invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Confidentiality Agreement\nshall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be\nunenforceable by reason of its extent, duration, scope or otherwise, then the parties intend and hereby request that the court or other\nauthority\nmaking that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and\nenforce them in their modified form for all purposes of this Confidentiality Agreement.\nLoGo\n12. Term.\nUnless explicitly stated otherwise herein, this Confidentiality Agreement will terminate two (2) years from the date hereof and be governed\nby Texas law.\n13. Modifications and Waiver.\nNo provision of this Confidentiality Agreement can be waived or amended in favor of the parties hereto except by written consent of the\nother party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either\nparty hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof\npreclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n14. Repositories.\nThe terms of this Confidentiality Agreement shall control over any additional purported confidentiality requirements imposed by any\noffering memorandum, web-based database or similar repository of Evaluation Material to which the you or any of the Representatives is granted\naccess\nin connection with the evaluation, negotiation or consummation of the Transaction, notwithstanding acceptance of such an offering\nmemorandum or submission of an electronic signature, "clicking" on an "I Agree" icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that its confidentiality obligations with respect to Evaluation Material are exclusively\ngoverned by this Agreement and may not be enlarged except by a written agreement that is hereafter executed by each of the parties hereto.\n15. Entire Agreement.\nThis Confidentiality Agreement contains the entire agreement between the parties hereto regarding the subject matter hereof and\nsupersedes all prior agreements, understandings, arrangements and discussions between the parties hereto regarding such subject matter.\nIf you are in agreement with the foregoing, please sign and return one copy of this Confidentiality Agreement, it being understood that all\ncounterpart copies will constitute but one agreement with respect to the subject matter hereof.\nLoGo\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.\n"Company"\n"Other Party"\nDAEGIS, INC.\nOPEN TEXT CORPORATION\nBy:\n/s/ Timothy P. Bacci\nBy:\n/s/ Gordon Davies\nName: Timothy P. Bacci\nName: Gordon Davies\nTitle: President & CEO\nTitle: CLO and Corporate Secretary\nLOGO\nAppendix A\nDefinitions.\n(a) The term "Affiliate" shall have the meaning provided such term in the Securities Exchange Act of 1934 Act, as amended (the "1934 Act")\nand, for avoidance of doubt, includes your subsidiaries and Affiliates.\n(b) The term "Evaluation Material" means any and all information (whether written, oral or electronic), data, documents, agreements, files\nand other materials, whether disclosed orally or stored in written, electronic or other form or media, which is obtained from or disclosed by the\nCompany, or its Representatives or Affiliates before or after the date hereof regarding the Company, including, without limitation, information\nconcerning the Company's business, financial condition, operations, prospects, assets and liabilities, and all notes, reports, forecasts, analyses,\ncompilations, studies, interpretations or other documents prepared by you or on your behalf, (collectively, "Notes") which contains or is based\nupon, in whole or in part, the Evaluation Material.\nThis Confidentiality Agreement shall be inoperative as to particular portions of the Evaluation Material if such information (i) is or\nbecomes generally available to the public other than as a result of a direct or indirect disclosure by you, your Affiliates or the Representatives in\nbreach of this Confidentiality Agreement, (ii) was within your possession, as evidenced by written records, prior to its being furnished to you by\nthe Company or its representatives, provided that the source of such information was not bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such information, or (iii) is or becomes available to\nyou on a non-confidential basis from a source other than the Company or its Representatives, provided that such source is not bound by a\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such\ninformation.\n(c) The term "Permitted Co-bidder" means any Person (and any Affiliates of such Person) who may invest in the Transaction on a side-by-\nside basis with you, if such Person (or its Affiliate) (i) has executed its own confidentiality agreement with the Company or is one of your\nAffiliates and (ii) is listed on Exhibit A.\n(d) The term "Person" means an individual, corporation, partnership (whether general or limited), company, joint venture, unincorporated\norganization, limited liability company or partnership, sole proprietorship, association, bank, trust company or trust, whether or not legal entities,\nthe media, or any governmental entity or agency or political subdivision thereof.\n(e)\nThe term "Representatives" shall include your and your Affiliates' officers, directors, employees, managing members, general partners,\nadvisors, agents and consultants (including attorneys, financial advisors and accountants) and lenders.\nLOGO	EX-3 3 d93800dex3.htm EX-3\nExhibit 3\nLOGO\nMUTUAL CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT\nThis Agreement is made on August 10, 2015 by and between DAEGIS, INC., having a principal place of business at 600 East Las Colinas\nBlvd., Suite 1500, Irving, Texas 75039 and Open Text Corporation, having a principal place of business at 275 Frank Tompa Drive, Waterloo,\nOntario, Canada (“you” or the “Other Party”).\nYou have requested information regarding Daegis Inc., a Delaware corporation (collectively, with its subsidiaries, the “Company”) with\nrespect to a proposed Transaction as detailed below. Such a Transaction could include a possible purchase of all or a portion of the stock, assets\nor business of the Company, or any related transactions as may be mutually agreed to between you and the Company (each, a “Transaction”). In\nconnection with your consideration of any possible Transaction, the Company is prepared to furnish you with certain “Evaluation Material” (as\ndefined in Appendix A hereto) in accordance with the provisions of this agreement (the “Confidentiality Agreement”).\n1. Use of Evaluation Material.\nYou and each individual or entity you provide access to the Evaluation Material agree: (a) to use the Evaluation Material solely for the\npurpose of determining whether you wish to enter into any possible Transaction and the terms thereof, and (b) subject to the section captioned\n“Legally Required Disclosure” below, to keep the Evaluation Material strictly confidential, and not to disclose or use any of the Evaluation\nMaterial in any manner inconsistent with this Confidentiality Agreement; provided, however, that any of such information may be disclosed to\nyour Affiliates (as defined in Appendix A hereto) and the Representatives (as defined in Appendix A hereto) who need to know such information\nfor the sole purpose of helping you evaluate a possible Transaction. You agree to be responsible for any breach of this Confidentiality Agreement\nby any of your Affiliates and the Representatives.\n2. Non-Disclosure of Discussions.\nSubject to the section captioned “Legally Required Disclosure” below, you agree that you will not, and you will cause your Affiliates and\nthe Representatives not to disclose to any other Person (as defined in Appendix A hereto): (a) that Evaluation Material has been provided to you\nor any Permitted Co-bidder (as defined in Appendix A hereto) or that you or any Permitted Co-bidder have received or inspected any portion of\nthe Evaluation Material, (b) the existence or contents of this Confidentiality Agreement, (c) that discussions or negotiations concerning a possible\nTransaction are taking place or (d) any of the terms, conditions or other facts with respect thereto (including the status thereof), provided,\nhowever, that nothing contained herein shall be deemed to inhibit, impair or restrict you or the Representatives from having discussions or\nnegotiations with other Persons relating to potential financing in connection with the possible Transaction so long as each of such Person agrees\nin writing to be bound by the terms of this Confidentiality Agreement pursuant to a joinder agreement in a form reasonably acceptable to the\nCompany.\nLOGO\n3. Legally Required Disclosure.\nIf you or any of the Representatives are requested or required (in the opinion of your counsel) by order of court, legal proceedings,\nsubpoena, civil investigative demand, a governmental agency, a stock exchange or other similar process to disclose any of the Evaluation\nMaterial or any of the facts, disclosure of which is prohibited under this Confidentiality Agreement, you will provide the Company with prompt\nwritten notice of any such requests or requirements together with copies of the material proposed to be disclosed so that the Company may seek a\nprotective order or other appropriate remedy and/or waive compliance with the provisions of this Confidentiality Agreement. If, in the absence of\na protective order or other remedy or the receipt of a waiver by the Company, you or the Representatives are nonetheless legally compelled to\ndisclose the Evaluation Material or any of the facts, disclosure of which is prohibited under this Confidentiality Agreement, or otherwise be\nliable for contempt or suffer other censure or penalty, you or the Representatives in question may, without liability hereunder, disclose to such\nrequiring Person only that portion of such Evaluation Material or any such facts which you or the Representatives, on the advice of your counsel,\nare legally required to disclose, provided that you or the Representatives shall exercise reasonable efforts to preserve the privileged nature and\nconfidentiality of such Evaluation Material or any of such facts, including, without limitation, by cooperating with the Company to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the\nPerson receiving the material.\n4. Representations and Warranties.\n(a) You hereby represent and warrant that you are not acting as a broker for or representative of any other Person in connection with the\nTransaction, and are considering the Transaction only for your own account. Except with the prior written consent of the Company, you agree\nthat (a) you will not act as a joint bidder or co-bidder with any other Person with respect to the Transaction, other than Permitted Co-bidders, and\n(b) neither you nor any of the Representatives (acting on behalf of you or your Affiliates) will enter into any discussions, negotiations,\nagreements, arrangements or understandings (whether written or oral) with any other Person regarding the Transaction, other than the Company\nand its representatives.\n(b) You hereby represent and warrant that neither you nor any of your Affiliates or the Representatives is party to any agreement,\narrangement or understanding (whether written or oral) that would restrict the ability of any other Person to provide financing (debt, equity or\notherwise) to any other Person for the Transaction or any similar transaction, and you hereby agree that neither you nor any of your Affiliates or\nthe Representatives will directly or indirectly restrict the ability of any other Person to provide any such financing.\n(c) Notwithstanding anything to the contrary contained herein, without the prior written consent of the Company, you agree that neither\nyou, your Affiliates, nor any of your or the Representatives will disclose any Evaluation Material to any actual or potential sources of financing\n(debt, equity or otherwise), other than (a) bona fide third party institutional lenders who are or may be engaged to provide debt financing to you\nor your Affiliates or (b) Permitted Co-bidders.\nLOGO\n5. Return or Destruction of Evaluation Material.\nIf you decide that you do not wish to proceed with a possible Transaction, you will promptly inform the Company of this decision. In that\ncase, or at any time upon the written request of the Company for any reason, you will, and will cause your Affiliates and the Representatives to,\nwithin ten (10) days after the request, destroy or return all Evaluation Material and no copy, extract, or other reproductions thereof (including\nelectronic copies) shall be retained. No such termination will affect your obligations hereunder or those of the Representatives. If requested by\nthe Company, you will, and will cause the Representatives to, provide written certification to the Company that all such material (including\nelectronic copies) has been returned or destroyed in compliance with this Confidentiality Agreement. Notwithstanding the return or destruction\nof the Evaluation Material, you and the Representatives shall continue to be bound by their obligations of confidentiality and other obligations\nhereunder.\n6. No Solicitation.\nFor a period of one (1) year following the date of this Confidentiality Agreement, you will not, directly or indirectly, solicit for employment\nany officer, director, or employee of the Company or any of its subsidiaries or divisions in an executive or management level position or who is\notherwise considered by the Company (in its sole discretion) to be a key employee, in each case, with whom you have had contact or became\nknown to you in connection with your considerations of a Transaction, except that you shall not be deemed to be in violation of this provision as\na result of any such employee who: (i) initiates discussions regarding such employment without any direct or indirect solicitation by you or\n(ii) responds to any public advertisement or search firm communications that are not directed specifically to any of the Persons described herein.\n7. Maintaining Privileges.\nIf any Evaluation Material (including Evaluation Material related to pending or threatened litigation) includes materials or information\nsubject to the attorney-client privilege, work product doctrine or any other applicable privilege, you understand and agree that you and the\nCompany have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of each party to\nthis Confidentiality Agreement that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality\nof such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All\nEvaluation Material provided to you that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege shall remain entitled to such protection under these privileges, this Confidentiality Agreement, and under the joint defense doctrine.\n8. Not a Transaction Agreement.\nYou understand and agree that no contract or agreement providing for a Transaction shall be deemed to exist between you and the\nCompany unless and until you and the Company execute and deliver a final definitive agreement relating to a Transaction (a “Transaction\nAgreement”), and you hereby waive, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a\nTransaction unless and until you and the Company shall have executed and delivered a Transaction\nLOGO\nAgreement. You also agree that, unless and until you and the Company shall have executed and delivered a Transaction Agreement, neither you\nnor the Company will be under any legal obligation of any kind whatsoever with respect to such Transaction by virtue of this Confidentiality\nAgreement except for the matters specifically agreed to herein. You further acknowledge and agree that the Company reserves the right, in its\nsole discretion, to reject any proposals made by you, your Affiliates or any of the Representatives with regard to a Transaction, and to terminate\ndiscussion and negotiations with you at any time and for any reason or no reason. You understand that the Company shall be free to establish and\nchange any process or procedure with respect to any possible Transaction as the Company in its sole discretion shall determine (including,\nwithout limitation, negotiating with any other interested party and entering into a final definitive agreement relating to a Transaction with any\nother party without prior notice to you or any other Person).\n9. No Representations or Warranties; No Obligation to Disclose.\nYou understand and acknowledge that the Company and its Affiliates and representatives have made and make no representation hereunder,\nexpress or implied, as to the accuracy or completeness of the Evaluation Materials, expressly disclaim any and all liability for the information\ncontained in or omitted from the Evaluation Material furnished by or on behalf of the Company and shall have no liability to you, your Affiliates\nor the Representatives or any other Person relating to or resulting from the use of the Evaluation Material or any errors therein or omissions\ntherefrom. The parties agree that the Company will only be liable for any representations or warranties which are made in a Transaction\nAgreement, when, as, and if executed and delivered, and subject to such limitations and restrictions as may be specified therein. Nothing in this\nConfidentiality Agreement shall be construed as obligating the Company to provide, or to continue to provide, any information to any Person. It\nis expected that you will conduct your own independent investigation of the Company and rely upon such investigation in making an investment\ndecision regarding the Company.\n10. Remedies.\nIt is understood and agreed that money damages would not be a sufficient remedy for any breach of this Confidentiality Agreement by you,\nyour Affiliates or the Representatives, and that the Company shall be entitled to equitable relief, including injunction and specific performance,\nas a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach of this\nConfidentiality Agreement and shall be in addition to all other remedies available at law or equity to the Company.\n11. Severability.\nIf any term, provision, covenant or restriction contained in this Confidentiality Agreement is held by any court of competent jurisdiction to\nbe invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Confidentiality Agreement\nshall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be\nunenforceable by reason of its extent, duration, scope or otherwise, then the parties intend and hereby request that the court or other authority\nmaking that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and\nenforce them in their modified form for all purposes of this Confidentiality Agreement.\nLOGO\n12. Term.\nUnless explicitly stated otherwise herein, this Confidentiality Agreement will terminate two (2) years from the date hereof and be governed\nby Texas law.\n13. Modifications and Waiver.\nNo provision of this Confidentiality Agreement can be waived or amended in favor of the parties hereto except by written consent of the\nother party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either\nparty hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof\npreclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n14. Repositories.\nThe terms of this Confidentiality Agreement shall control over any additional purported confidentiality requirements imposed by any\noffering memorandum, web-based database or similar repository of Evaluation Material to which the you or any of the Representatives is granted\naccess in connection with the evaluation, negotiation or consummation of the Transaction, notwithstanding acceptance of such an offering\nmemorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that its confidentiality obligations with respect to Evaluation Material are exclusively\ngoverned by this Agreement and may not be enlarged except by a written agreement that is hereafter executed by each of the parties hereto.\n15. Entire Agreement.\nThis Confidentiality Agreement contains the entire agreement between the parties hereto regarding the subject matter hereof and\nsupersedes all prior agreements, understandings, arrangements and discussions between the parties hereto regarding such subject matter.\nIf you are in agreement with the foregoing, please sign and return one copy of this Confidentiality Agreement, it being understood that all\ncounterpart copies will constitute but one agreement with respect to the subject matter hereof.\nLOGO\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.\n“Company”\n“Other Party”\nDAEGIS, INC.\nOPEN TEXT CORPORATION\nBy: /s/ Timothy P. Bacci\nBy: /s/ Gordon Davies\nName: Timothy P. Bacci\nName: Gordon Davies\nTitle: President & CEO\nTitle: CLO and Corporate Secretary\nLOGO\nAppendix A\nDefinitions.\n(a) The term “Affiliate” shall have the meaning provided such term in the Securities Exchange Act of 1934 Act, as amended (the “1934 Act”)\nand, for avoidance of doubt, includes your subsidiaries and Affiliates.\n(b) The term “Evaluation Material” means any and all information (whether written, oral or electronic), data, documents, agreements, files\nand other materials, whether disclosed orally or stored in written, electronic or other form or media, which is obtained from or disclosed by the\nCompany, or its Representatives or Affiliates before or after the date hereof regarding the Company, including, without limitation, information\nconcerning the Company’s business, financial condition, operations, prospects, assets and liabilities, and all notes, reports, forecasts, analyses,\ncompilations, studies, interpretations or other documents prepared by you or on your behalf, (collectively, “Notes”) which contains or is based\nupon, in whole or in part, the Evaluation Material.\nThis Confidentiality Agreement shall be inoperative as to particular portions of the Evaluation Material if such information (i) is or\nbecomes generally available to the public other than as a result of a direct or indirect disclosure by you, your Affiliates or the Representatives in\nbreach of this Confidentiality Agreement, (ii) was within your possession, as evidenced by written records, prior to its being furnished to you by\nthe Company or its representatives, provided that the source of such information was not bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such information, or (iii) is or becomes available to\nyou on a non-confidential basis from a source other than the Company or its Representatives, provided that such source is not bound by a\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such\ninformation.\n(c) The term “Permitted Co-bidder” means any Person (and any Affiliates of such Person) who may invest in the Transaction on a side-by-\nside basis with you, if such Person (or its Affiliate) (i) has executed its own confidentiality agreement with the Company or is one of your\nAffiliates and (ii) is listed on Exhibit A.\n(d) The term “Person” means an individual, corporation, partnership (whether general or limited), company, joint venture, unincorporated\norganization, limited liability company or partnership, sole proprietorship, association, bank, trust company or trust, whether or not legal entities,\nthe media, or any governmental entity or agency or political subdivision thereof.\n(e) The term “Representatives” shall include your and your Affiliates’ officers, directors, employees, managing members, general partners,\nadvisors, agents and consultants (including attorneys, financial advisors and accountants) and lenders.\nLOGO
20be51bbbc6072ecd2f090fcf2d67a6c.pdf	effective_date jurisdiction party term	EX-10.03 4 dex1003.htm CONSULTING AGREEMENT\nExhibit 10.03\nCONSULTING AGREEMENT\nThis consulting agreement (the “Agreement”), is entered into as of March 17, 2008 (the “Effective Date”) by and among Intersil Corporation, on\nbehalf of itself and its subsidiaries (hereinafter “the Company”), with a place of business at 1001 Murphy Ranch Road, Milpitas, California 95035,\nand Richard M. Beyer, whose address is 13503 Fremont Road, Los Altos, CA 94022 (hereinafter “Mr. Beyer”).\nWHEREAS, Mr. Beyer resigned his positions as Director and Chief Executive Officer of the Company, effective February 13, 2008;\nWHEREAS, since his resignation as Director and Chief Executive Officer of the Company as of February 13, 2008, Mr. Beyer has continued his\nemployment with the Company in the capacity of a non-officer special advisor to the Chief Executive Officer and Board of Directors (the “Board”);\nWHEREAS, Mr. Beyer has informed the Board of his intent to terminate his employment with the Company, effective March 16, 2008; and\nWHEREAS, the Board has determined that it is in the best interests of the Company that Mr. Beyer continue to be available to provide advisory\nservices to the new Chief Executive Officer and Board after his termination of his employment through a transition period ending on April 16, 2008.\nAGREEMENT\nNOW, THEREFORE, in consideration of the premises and mutual promises herein contained, the parties do hereby agree as follows:\n1. CONSULTING SERVICES. During the term of this Agreement, Mr. Beyer will make himself available for and provide (upon reasonable request\nfrom the Chief Executive Officer or Board which will not significantly interfere with obligations Mr. Beyer may have to his new employer) up to ten\n(10) hours per week of advice to the Company’s Chief Executive Officer and/or the Board concerning business matters, financial matters, customer\nrelationship issues and such other Company matters with which he has familiarity (the “Consulting Services”). Mr. Beyer will comply with and be\nbound by the Company’s operating policies and procedures (as applicable to consulting arrangements) that are in effect during the term of this\nAgreement. This Agreement does not supersede any prior employment agreement Mr. Beyer has or had with the Company.\n2. TERM. The term of this Agreement will commence on the Effective Date and will end on April 16, 2008 (the “Consulting Term”).\n3. CONSIDERATION. Mr. Beyer will be compensated as follows:\n(a) Stock Options. During the Consulting Term, those employee stock options previously issued to Mr. Beyer by the Company during Mr. Beyer’s\nemployment with the Company that are scheduled to become vested on or before April 16, 2008 will continue to vest through the Consulting Term\nand will be exercisable in accordance with the terms of such grants, and subject to the terms of the Company’s 1999 Equity Compensation Plan (the\n“1999 Equity Plan”). Those employee stock options previously granted to Mr. Beyer that would become vested after April 16, 2008 will become\nunexercisable and expire on March 16, 2008.\n44\n(b) Deferred Stock Units. During the Consulting Term, those deferred stock units (“DSUs) previously issued to Mr. Beyer during Mr. Beyer’s\nemployment with the Company that are scheduled to become vested on or before April 16, 2008 will continue to vest through the Consulting Term.\nThose DSUs previously granted to Mr. Beyer that would become vested after April 16, 2008 will terminate and expire on March 16, 2008.\nDistribution of any vested DSUs will be in accordance with the terms of the respective DSU award and the terms of the 1999 Equity Plan.\n4. INDEPENDENT CONTRACTOR. During the Consulting Term, Mr. Beyer will be an independent contractor, and not an employee or agent of the\nCompany for any purpose, and Mr. Beyer will have no authority to represent or bind the Company in any capacity with any party.\n5. ASSIGNMENT . This Agreement is a personal services agreement and may not be transferred or assigned by Mr. Beyer, and any such assignment\nwill be void.\n6. CONFIDENTIALITY AND NON-DISCLOSURE. It is recognized that Mr. Beyer has acquired and may acquire confidential information,\nincluding trade secrets, computer software, and proprietary data, regarding the above matters and other affairs, products, technologies and business\nof the Company during the course of this Agreement (“Confidential Information”). Mr. Beyer hereby agrees and covenants to hold in trust and\nconfidence all such Confidential Information during and following Mr. Beyer’s retention in accordance with the terms and conditions of the\nCompany’s Non-Disclosure Agreement, Attachment A (attached hereto and incorporated herein by reference). At no time will Mr. Beyer divulge\nConfidential Information of the Company for any purposes other than for the benefit of the Company. Any information created by Mr. Beyer while\nengaged in any work for the Company or while using the Company materials will be deemed to be the Company Confidential Information, subject to\nthe exceptions in Attachment A, and will be so marked and treated upon creation by Mr. Beyer.\n7. OWNERSHIP OF WORK PRODUCT. Mr. Beyer agrees that with respect to any work performed for the Company hereunder which results in\nMr. Beyer’s preparation of written or verbal reports, studies, analyses, research data, proposals, strategies or similar work product, the Company will\nretain exclusive right and title in and to said work product and that Mr. Beyer may not otherwise use or disclose same to third parties without the\nCompany’s prior written approval.\n8. COMPLIANCE WITH COMPANY STANDARDS OF CONDUCT AND COMPLIANCE WITH LAW. The Company conducts its business in\nstrict compliance with applicable laws, rules, and regulations and with honesty, integrity, and a strong commitment to the highest standards of\nbusiness ethics. Mr. Beyer agrees at all times to adhere to the Company policies in this regard, as well as any other customary standards of business\nconduct including conduct prescribed by law or regulation. Mr. Beyer further agrees that he will at all times comply with all federal, state, and local\nlaws, regulations, and orders in the performance of this Agreement.\n9. NOTICES . All notices and other communications hereunder will be in writing and will be deemed given if delivered personally, telecopied (which\nis confirmed) or dispatched by a nationally recognized overnight courier service to the parties at the following addresses (or at such other address for\na party as will be specified by like notice):\na.\nif to the Company:\nIntersil Corporation\n1001 Murphy Ranch Road\nMilpitas, CA 95035\nAttn: Office of the General Counsel\nFax: 408/321-9594\nEmail: ttokos@Intersil.com\nb. if to Mr. Beyer:\nRichard Beyer\nHome Address\n45\n10. GOVERNING LAW. This Agreement will be governed by, subject to, and construed in accordance with the laws of the State of California.\nVenue will lie in the State of California for all causes of action under this Agreement, and both the Company and Mr. Beyer agree to be subject to the\nstate and Federal courts of California.\n11. CONSTRUCTION. This Agreement has been negotiated by the parties and will be interpreted fairly in accordance with its terms and without any\nconstruction in favor of or against either party.\n12. CAPTIONS AND HEADINGS. The captions and section and headings used in this Agreement are inserted for convenience only and will not\naffect the meaning or interpretation of this Agreement.\n13. WAIVER. The waiver by either party of a breach of or a default under any provision of this Agreement will not be effective unless in writing and\nwill not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor will any delay\nor omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any\nright or remedy.\n14. SEVERABILITY. If the application of any provision of this Agreement to any particular facts or circumstances will for any reason be held to be\ninvalid, illegal or unenforceable by a court, arbitration panel or other tribunal of competent jurisdiction, then (a) the validity, legality and\nenforceability of such provision as applied to any other particular facts or circumstances, and the other provisions of this Agreement, will not in any\nway be affected or impaired thereby and (b) such provision will be enforced to the maximum extent possible so as to effect the intent of the parties.\nIf, moreover, any provision contained in this Agreement will for any reason be held to be excessively broad as to duration, geographical scope,\nactivity or subject, it will be construed by limiting and reducing it, so as to be enforceable to the extent compatible with applicable law.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.\nINTERSIL CORPORATION\nRichard M. Beyer\nBy: /S/ Thomas C. Tokos\n/s/ Richard Beyer\nVice President, General Counsel & Secretary\nName: Richard Beyer\n46\nAttachment A\nNon-Disclosure Agreement (NDA)\nThis non-disclosure agreement (“NDA”) is made by and between the Parties to the Agreement with an effective date the same as that of the\nAgreement. Either Party may receive or disclose Confidential Information under this NDA. The Party disclosing Confidential Information shall be\nconsidered the “Discloser.” The Party receiving Confidential Information shall be considered the “Recipient.” In consideration of the mutual\npromises and covenants contained in this NDA, and to assure the protection and preservation of the proprietary and/or confidential nature of the\ninformation to be disclosed or made available to each other, the Parties hereto agree as follows:\n1. Definition. “Confidential Information” means any non-public information, whether disclosed orally or in tangible, machine readable, or electronic\nform, by either of the Parties to the other, which the Discloser identifies at the time of disclosure as confidential, proprietary, secret, private, or the\nlike, or which under the circumstances surrounding disclosure gives indication that the information should be treated as confidential. Confidential\nInformation includes, without limitation, any specification, layout, design, drawing, formula, technique, algorithm, know-how, sample product, test\ndata, information related to engineering, manufacturing, sales, marketing, management or quality control, financial information or other information\nrelated to the business operations of the Discloser.\n2. Use of Confidential Information. Confidential Information disclosed hereunder may only be used for in support of and to provide the advisory\nservice described in the Agreement (hereinafter “Authorized Purpose”), and shall be used by Recipient solely in a manner that actually or potentially\nbenefits the Discloser, or shall not be used in a manner detrimental to Discloser. Each Discloser represents that it has the right to disclose\nConfidential Information to the Recipient for the Authorized Purpose(s) stated above.\n3. Protection of Confidential Information. Confidential Information may be exchanged between the Parties under this NDA to the extent necessary to\nfulfill the Authorized Purpose, and shall not be used for any other purpose. Recipient acknowledges that the Discloser’s Confidential Information is\na special, valuable and a unique asset, and agrees that it shall: (a) not disclose the Confidential Information to any third party without written consent\nof Discloser, (b) restrict dissemination of Confidential Information to only its employees, contractors, or agents who are directly participating in the\nAuthorized Purpose, who have a need to know the Confidential Information, and who are bound by a duty of confidentiality under terms no less\nrestrictive than contained herein concerning the use of Confidential Information, and (c) use the same degree of care as for its own information of\nlike importance, but at least reasonable care, in preventing disclosure of Confidential Information. Recipient further agrees not to reverse engineer,\ndecompile, disassemble any prototypes, software, hardware or other tangible objects or products provided hereunder which embody the Confidential\nInformation of the Discloser.\n4. Exceptions. This NDA imposes no obligation upon Recipient with respect to Confidential Information which is:\n(a) public or becomes publicly available through no act or failure on part of Recipient, or\n(b) approved in writing by the Discloser for public release or disclosure by the Recipient; or\n(c) disclosed to a third party by Discloser without a duty of confidentiality or is lawfully obtained by Recipient from a third party without a duty of\nconfidentiality or restriction on disclosure, or\n(d) independently known by or independently developed by the Recipient without the use of Confidential Information disclosed by the Discloser; or\n(e) required to be disclosed pursuant to the order of a court of competent jurisdiction; or otherwise required to be disclosed by law through no act of\nthe Recipient, provided, however, that the Recipient has notified the Discloser upon learning of the possibility that disclosure could be required\npursuant to any such law or legal order and has given the Discloser a reasonable opportunity to contest or limit the scope of such required disclosure\nand has cooperated with the Discloser toward this end.\n5. Term and Termination. This NDA shall be co-terminus with the Term of the Agreement. Termination shall not, however, affect the rights and\nobligations included herein with respect to Confidential Information disclosed hereunder prior to termination. Upon termination of this NDA, each\nParty will, and\n47\nwithin a reasonable period of time thereafter, return all Confidential Information received from the Recipient and copies made thereof by the\nRecipient, or, if acceptable to the Discloser, certify by written memorandum that all such Confidential Information has been destroyed. Each Party\nmay retain one archival copy in its Legal Department to be used only in resolving a dispute concerning this NDA. The obligations of the Recipient\nwith respect to non-disclosure and use shall survive the expiration of this NDA indefinitely.\n6. Rights and Remedies. Each Party acknowledges that damages for improper disclosure of Confidential Information may be irreparable; therefore,\nthe injured Party is entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies.\n7. No Formal Business Relationship. This NDA is for the purpose of protecting Confidential Information only and shall not be construed to create\nany agency, partnership, joint venture or other such relationship between the Parties except as defined in the Agreement, nor shall the exchange of\nConfidential Information represent any commitment by the Parties to enter into any business relationship. If the Parties desire to pursue business\nopportunities, the Parties shall execute a separate written NDA to govern such business relationship.\n8. No Obligation to Disclose or Warranty. Neither Party has an obligation to supply Confidential Information hereunder. Confidential Information\ndisclosed hereunder is provided on an “AS IS” basis, without any warranty, whether express, implied or otherwise, regarding its accuracy, usefulness\nor performance.\n9. No Transfer or License of Intellectual Property. Recipient agrees that all Confidential Information received is and will remain the sole property of\nDiscloser. Neither the execution of this NDA, nor the furnishing of any Confidential Information hereunder shall be construed as a grant by\nimplication, estoppel or otherwise, of a license by either Party to the other to make, have made, use or sell any product using Confidential\nInformation or as a license under any patent, patent application, utility model, copyright, maskwork right, or any other intellectual property right.\n10. Assignment. This NDA and the rights and obligations hereunder may not be transferred or assigned by one party without the prior written\napproval of the other party hereto. Notwithstanding the foregoing, either party hereto may assign this NDA and corresponding rights hereunder to a\nsuccessor-in-interest (a) to all or part of the business unit to which this NDA relates, and (b) that agrees to abide by all obligations herein.\n11. Export Control Laws and Regulations. Recipient agrees it will not, in any form, export, re-export, resell, ship or divert or cause to be exported,\nre-exported, re-sold, shipped or diverted, directly or indirectly, any product or technical data furnished hereunder, or the direct product of such\ntechnical data, to any country for which the United States Government requires an export license, or other approval, without first obtaining such\nlicense or approval.\n12. Applicable Law. The law of the state of Delaware, U.S .A. except for its choice of laws rules shall be used to construe and govern this NDA. The\nprevailing party in any action to enforce this NDA shall be entitled to recover reasonable attorneys fees and costs.\n13. Binding Effect. This NDA shall be binding upon each Party, its affiliates, respective employees, agents, representatives, successors, and assigns.\nNo change, modification, alteration, or addition to any provision hereof shall be binding unless in writing and signed by authorized representatives of\nboth Parties.\n14. Entire NDA. This NDA contains the entire understanding between the Parties relative to the protection of Confidential Information and\nsupersedes all prior and collateral communications, reports, and understandings between the Parties in respect thereto.\n48	EX-10.03 4 dex1003.htm CONSULTING AGREEMENT\nExhibit 10.03\nCONSULTING AGREEMENT\nThis consulting agreement (the “Agreement”), is entered into as of March 17, 2008 (the “Effective Date”) by and among Intersil Corporation, on\nbehalf of itself and its subsidiaries (hereinafter “the Company”), with a place of business at 1001 Murphy Ranch Road, Milpitas, California 95035,\nand Richard M. Beyer, whose address is 13503 Fremont Road, Los Altos, CA 94022 (hereinafter “Mr. Beyer”).\nWHEREAS, Mr. Beyer resigned his positions as Director and Chief Executive Officer of the Company, effective February 13, 2008;\nWHEREAS, since his resignation as Director and Chief Executive Officer of the Company as of February 13, 2008, Mr. Beyer has continued his\nemployment with the Company in the capacity of a non-officer special advisor to the Chief Executive Officer and Board of Directors (the “Board”);\nWHEREAS, Mr. Beyer has informed the Board of his intent to terminate his employment with the Company, effective March 16, 2008; and\nWHEREAS, the Board has determined that it is in the best interests of the Company that Mr. Beyer continue to be available to provide advisory\nservices to the new Chief Executive Officer and Board after his termination of his employment through a transition period ending on April 16, 2008.\nAGREEMENT\nNOW, THEREFORE, in consideration of the premises and mutual promises herein contained, the parties do hereby agree as follows:\n1. CONSULTING SERVICES. During the term of this Agreement, Mr. Beyer will make himself available for and provide (upon reasonable request\nfrom the Chief Executive Officer or Board which will not significantly interfere with obligations Mr. Beyer may have to his new employer) up to ten\n(10) hours per week of advice to the Company’s Chief Executive Officer and/or the Board concerning business matters, financial matters, customer\nrelationship issues and such other Company matters with which he has familiarity (the “Consulting Services”). Mr. Beyer will comply with and be\nbound by the Company’s operating policies and procedures (as applicable to consulting arrangements) that are in effect during the term of this\nAgreement. This Agreement does not supersede any prior employment agreement Mr. Beyer has or had with the Company.\n2. TERM. The term of this Agreement will commence on the Effective Date and will end on April 16, 2008 (the “Consulting Term”).\n3. CONSIDERATION. Mr. Beyer will be compensated as follows:\n(a) Stock Options. During the Consulting Term, those employee stock options previously issued to Mr. Beyer by the Company during Mr. Beyer’s\nemployment with the Company that are scheduled to become vested on or before April 16, 2008 will continue to vest through the Consulting Term\nand will be exercisable in accordance with the terms of such grants, and subject to the terms of the Company’s 1999 Equity Compensation Plan (the\n“1999 Equity Plan”). Those employee stock options previously granted to Mr. Beyer that would become vested after April 16, 2008 will become\nunexercisable and expire on March 16, 2008.\n \n44\n(b) Deferred Stock Units. During the Consulting Term, those deferred stock units (“DSUs) previously issued to Mr. Beyer during Mr. Beyer’s\nemployment with the Company that are scheduled to become vested on or before April 16, 2008 will continue to vest through the Consulting Term.\nThose DSUs previously granted to Mr. Beyer that would become vested after April 16, 2008 will terminate and expire on March 16, 2008.\nDistribution of any vested DSUs will be in accordance with the terms of the respective DSU award and the terms of the 1999 Equity Plan.\n4. INDEPENDENT CONTRACTOR. During the Consulting Term, Mr. Beyer will be an independent contractor, and not an employee or agent of the\nCompany for any purpose, and Mr. Beyer will have no authority to represent or bind the Company in any capacity with any party.\n5. ASSIGNMENT. This Agreement is a personal services agreement and may not be transferred or assigned by Mr. Beyer, and any such assignment\nwill be void.\n6. CONFIDENTIALITY AND NON-DISCLOSURE. It is recognized that Mr. Beyer has acquired and may acquire confidential information,\nincluding trade secrets, computer software, and proprietary data, regarding the above matters and other affairs, products, technologies and business\nof the Company during the course of this Agreement (“Confidential Information”). Mr. Beyer hereby agrees and covenants to hold in trust and\nconfidence all such Confidential Information during and following Mr. Beyer’s retention in accordance with the terms and conditions of the\nCompany’s Non-Disclosure Agreement, Attachment A (attached hereto and incorporated herein by reference). At no time will Mr. Beyer divulge\nConfidential Information of the Company for any purposes other than for the benefit of the Company. Any information created by Mr. Beyer while\nengaged in any work for the Company or while using the Company materials will be deemed to be the Company Confidential Information, subject to\nthe exceptions in Attachment A, and will be so marked and treated upon creation by Mr. Beyer.\n7. OWNERSHIP OF WORK PRODUCT. Mr. Beyer agrees that with respect to any work performed for the Company hereunder which results in\nMr. Beyer’s preparation of written or verbal reports, studies, analyses, research data, proposals, strategies or similar work product, the Company will\nretain exclusive right and title in and to said work product and that Mr. Beyer may not otherwise use or disclose same to third parties without the\nCompany’s prior written approval.\n8. COMPLIANCE WITH COMPANY STANDARDS OF CONDUCT AND COMPLIANCE WITH LAW. The Company conducts its business in\nstrict compliance with applicable laws, rules, and regulations and with honesty, integrity, and a strong commitment to the highest standards of\nbusiness ethics. Mr. Beyer agrees at all times to adhere to the Company policies in this regard, as well as any other customary standards of business\nconduct including conduct prescribed by law or regulation. Mr. Beyer further agrees that he will at all times comply with all federal, state, and local\nlaws, regulations, and orders in the performance of this Agreement.\n9. NOTICES. All notices and other communications hereunder will be in writing and will be deemed given if delivered personally, telecopied (which\nis confirmed) or dispatched by a nationally recognized overnight courier service to the parties at the following addresses (or at such other address for\na party as will be specified by like notice):\na.  if to the Company:\nIntersil Corporation\n1001 Murphy Ranch Road\nMilpitas, CA 95035\nAttn: Office of the General Counsel\nFax: 408/321-9594\nEmail: ttokos@]Intersil.com\nb. if to Mr. Beyer:\nRichard Beyer\nHome Address\n45\n10. GOVERNING LAW. This Agreement will be governed by, subject to, and construed in accordance with the laws of the State of California.\nVenue will lie in the State of California for all causes of action under this Agreement, and both the Company and Mr. Beyer agree to be subject to the\nstate and Federal courts of California.\n11. CONSTRUCTION. This Agreement has been negotiated by the parties and will be interpreted fairly in accordance with its terms and without any\nconstruction in favor of or against either party.\n12. CAPTIONS AND HEADINGS. The captions and section and headings used in this Agreement are inserted for convenience only and will not\naffect the meaning or interpretation of this Agreement.\n13. WAIVER. The waiver by either party of a breach of or a default under any provision of this Agreement will not be effective unless in writing and\nwill not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor will any delay\nor omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any\nright or remedy.\n14. SEVERABILITY. If the application of any provision of this Agreement to any particular facts or circumstances will for any reason be held to be\ninvalid, illegal or unenforceable by a court, arbitration panel or other tribunal of competent jurisdiction, then (a) the validity, legality and\nenforceability of such provision as applied to any other particular facts or circumstances, and the other provisions of this Agreement, will not in any\nway be affected or impaired thereby and (b) such provision will be enforced to the maximum extent possible so as to effect the intent of the parties.\nIf, moreover, any provision contained in this Agreement will for any reason be held to be excessively broad as to duration, geographical scope,\nactivity or subject, it will be construed by limiting and reducing it, so as to be enforceable to the extent compatible with applicable law.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.\nINTERSIL CORPORATION Richard M. Beyer\nBy: /S/ Thomas C. Tokos /s/ Richard Beyer\nVice President, General Counsel & Secretary Name: Richard Beyer\n46\nAttachment A\nNon-Disclosure Agreement (NDA)\nThis non-disclosure agreement (“NDA”) is made by and between the Parties to the Agreement with an effective date the same as that of the\nAgreement. Either Party may receive or disclose Confidential Information under this NDA. The Party disclosing Confidential Information shall be\nconsidered the “Discloser.” The Party receiving Confidential Information shall be considered the “Recipient.” In consideration of the mutual\npromises and covenants contained in this NDA, and to assure the protection and preservation of the proprietary and/or confidential nature of the\ninformation to be disclosed or made available to each other, the Parties hereto agree as follows:\n1. Definition. “Confidential Information” means any non-public information, whether disclosed orally or in tangible, machine readable, or electronic\nform, by either of the Parties to the other, which the Discloser identifies at the time of disclosure as confidential, proprietary, secret, private, or the\nlike, or which under the circumstances surrounding disclosure gives indication that the information should be treated as confidential. Confidential\nInformation includes, without limitation, any specification, layout, design, drawing, formula, technique, algorithm, know-how, sample product, test\ndata, information related to engineering, manufacturing, sales, marketing, management or quality control, financial information or other information\nrelated to the business operations of the Discloser.\n2. Use of Confidential Information. Confidential Information disclosed hereunder may only be used for in support of and to provide the advisory\nservice described in the Agreement (hereinafter “Authorized Purpose”), and shall be used by Recipient solely in a manner that actually or potentially\nbenefits the Discloser, or shall not be used in a manner detrimental to Discloser. Each Discloser represents that it has the right to disclose\nConfidential Information to the Recipient for the Authorized Purpose(s) stated above.\n3. Protection of Confidential Information. Confidential Information may be exchanged between the Parties under this NDA to the extent necessary to\nfulfill the Authorized Purpose, and shall not be used for any other purpose. Recipient acknowledges that the Discloser’s Confidential Information is\na special, valuable and a unique asset, and agrees that it shall: (a) not disclose the Confidential Information to any third party without written consent\nof Discloser, (b) restrict dissemination of Confidential Information to only its employees, contractors, or agents who are directly participating in the\nAuthorized Purpose, who have a need to know the Confidential Information, and who are bound by a duty of confidentiality under terms no less\nrestrictive than contained herein concerning the use of Confidential Information, and (c) use the same degree of care as for its own information of\nlike importance, but at least reasonable care, in preventing disclosure of Confidential Information. Recipient further agrees not to reverse engineer,\ndecompile, disassemble any prototypes, software, hardware or other tangible objects or products provided hereunder which embody the Confidential\nInformation of the Discloser.\n4. Exceptions. This NDA imposes no obligation upon Recipient with respect to Confidential Information which is:\n(a) public or becomes publicly available through no act or failure on part of Recipient, or\n(b) approved in writing by the Discloser for public release or disclosure by the Recipient; or\n(c) disclosed to a third party by Discloser without a duty of confidentiality or is lawfully obtained by Recipient from a third party without a duty of\nconfidentiality or restriction on disclosure, or\n(d) independently known by or independently developed by the Recipient without the use of Confidential Information disclosed by the Discloser; or\n(e) required to be disclosed pursuant to the order of a court of competent jurisdiction; or otherwise required to be disclosed by law through no act of\nthe Recipient, provided, however, that the Recipient has notified the Discloser upon learning of the possibility that disclosure could be required\npursuant to any such law or legal order and has given the Discloser a reasonable opportunity to contest or limit the scope of such required disclosure\nand has cooperated with the Discloser toward this end.\n5. Term and Termination. This NDA shall be co-terminus with the Term of the Agreement. Termination shall not, however, affect the rights and\nobligations included herein with respect to Confidential Information disclosed hereunder prior to termination. Upon termination of this NDA, each\nParty will, and\n47\nwithin a reasonable period of time thereafter, return all Confidential Information received from the Recipient and copies made thereof by the\nRecipient, or, if acceptable to the Discloser, certify by written memorandum that all such Confidential Information has been destroyed. Each Party\nmay retain one archival copy in its Legal Department to be used only in resolving a dispute concerning this NDA. The obligations of the Recipient\nwith respect to non-disclosure and use shall survive the expiration of this NDA indefinitely.\n6. Rights and Remedies. Each Party acknowledges that damages for improper disclosure of Confidential Information may be irreparable; therefore,\nthe injured Party is entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies.\n7. No Formal Business Relationship. This NDA is for the purpose of protecting Confidential Information only and shall not be construed to create\nany agency, partnership, joint venture or other such relationship between the Parties except as defined in the Agreement, nor shall the exchange of\nConfidential Information represent any commitment by the Parties to enter into any business relationship. If the Parties desire to pursue business\nopportunities, the Parties shall execute a separate written NDA to govern such business relationship.\n8. No Obligation to Disclose or Warranty. Neither Party has an obligation to supply Confidential Information hereunder. Confidential Information\ndisclosed hereunder is provided on an “AS IS” basis, without any warranty, whether express, implied or otherwise, regarding its accuracy, usefulness\nor performance.\n9. No Transfer or License of Intellectual Property. Recipient agrees that all Confidential Information received is and will remain the sole property of\nDiscloser. Neither the execution of this NDA, nor the furnishing of any Confidential Information hereunder shall be construed as a grant by\nimplication, estoppel or otherwise, of a license by either Party to the other to make, have made, use or sell any product using Confidential\nInformation or as a license under any patent, patent application, utility model, copyright, maskwork right, or any other intellectual property right.\n10. Assignment. This NDA and the rights and obligations hereunder may not be transferred or assigned by one party without the prior written\napproval of the other party hereto. Notwithstanding the foregoing, either party hereto may assign this NDA and corresponding rights hereunder to a\nsuccessor-in-interest (a) to all or part of the business unit to which this NDA relates, and (b) that agrees to abide by all obligations herein.\n11. Export Control Laws and Regulations. Recipient agrees it will not, in any form, export, re-export, resell, ship or divert or cause to be exported,\nre-exported, re-sold, shipped or diverted, directly or indirectly, any product or technical data furnished hereunder, or the direct product of such\ntechnical data, to any country for which the United States Government requires an export license, or other approval, without first obtaining such\nlicense or approval.\n12. Applicable Law. The law of the state of Delaware, U.S.A. except for its choice of laws rules shall be used to construe and govern this NDA. The\nprevailing party in any action to enforce this NDA shall be entitled to recover reasonable attorneys fees and costs.\n13. Binding Effect. This NDA shall be binding upon each Party, its affiliates, respective employees, agents, representatives, successors, and assigns.\nNo change, modification, alteration, or addition to any provision hereof shall be binding unless in writing and signed by authorized representatives of\nboth Parties.\n14. Entire NDA. This NDA contains the entire understanding between the Parties relative to the protection of Confidential Information and\nsupersedes all prior and collateral communications, reports, and understandings between the Parties in respect thereto.\n48	EX-10.03 4 ex1003.htm CONSULTING AGREEMENT\nExhibit 10.03\nCONSULTING AGREEMENT\nThis consulting agreement (the "Agreement"), is entered into as of March 17, 2008 (the "Effective Date") by and among Intersil Corporation, on\nbehalf of itself and its subsidiaries (hereinafter "the Company"), with a place of business at 1001 Murphy Ranch Road, Milpitas, California 95035,\nand Richard M. Beyer, whose address is 13503 Fremont Road, Los Altos, CA 94022 (hereinafter "Mr. Beyer").\nWHEREAS, Mr. Beyer resigned his positions as Director and Chief Executive Officer of the Company, effective February 13, 2008;\nWHEREAS, since his resignation as Director and Chief Executive Officer of the Company as of February 13, 2008, Mr. Beyer has continued\nhis\nemployment with the Company in the capacity of a non-officer special advisor to the Chief Executive Officer and Board of Directors (the "Board");\nWHEREAS, Mr. Beyer has informed the Board of his intent to terminate his employment with the Company, effective March 16, 2008; and\nWHEREAS, the Board has determined that it is in the best interests of the Company that Mr. Beyer continue to be available to provide advisory\nservices to the new Chief Executive Officer and Board after his termination of his employment through a transition period ending on April 16, 2008.\nAGREEMENT\nNOW, THEREFORE, in consideration of the premises and mutual promises herein contained, the parties do hereby agree as follows:\n1.\nCONSULTING SERVICES. During the term of this Agreement, Mr. Beyer will make himself available for and provide (upon reasonable request\nfrom\nthe\nChief Executive Officer or Board which will not significantly interfere with obligations Mr. Beyer may have to his new employer) up to\nten\n(10) hours per week of advice to the Company's Chief Executive Officer and/or the Board concerning business matters, financial matters, customer\nrelationship issues and such other Company matters with which he has familiarity (the "Consulting Services"). Mr. Beyer will comply with and be\nbound by the Company's operating policies and procedures (as applicable to consulting arrangements) that are in effect during the term of this\nAgreement. This Agreement does not supersede any prior employment agreement Mr. Beyer has or had with the Company.\n2. TERM. The term of this Agreement will commence on the Effective Date and will end on April 16, 2008 (the "Consulting Term").\n3. CONSIDERATION. Mr. Beyer will be compensated as follows:\n(a) Stock Options. During the Consulting Term, those employee stock options previously issued to Mr. Beyer by the Company during Mr. Beyer's\nemployment with the Company that are scheduled to become vested on or before April 16, 2008 will continue to vest through the Consulting Term\nand\nwill\nbe exercisable in accordance with the terms of such grants, and subject to the terms of the Company's 1999 Equity Compensation Plan\n(the\n"1999 Equity Plan"). Those employee stock options previously granted to Mr. Beyer that would become vested after April 16, 2008 will become\nunexercisable and expire on March 16, 2008.\n44\n(b) Deferred Stock Units. During the Consulting Term, those deferred stock units ("DSUs) previously issued to Mr. Beyer during Mr. Beyer's\nemployment with the Company that are scheduled to become vested on or before April 16, 2008 will continue to vest through the Consulting Term.\nThose DSUs previously granted to Mr. Beyer that would become vested after April 16, 2008 will terminate and expire on March 16, 2008.\nDistribution of any vested DSUs will be in accordance with the terms of the respective DSU award and the terms of the 1999 Equity Plan.\n4.\nINDEPENDENT CONTRACTOR. During the Consulting Term, Mr. Beyer will be an independent contractor, and not an employee or agent of the\nCompany for any purpose, and Mr. Beyer will have no authority to represent or bind the Company in any capacity with any party.\n5. ASSIGNMENT. This Agreement is a personal services agreement and may not be transferred or assigned by Mr. Beyer, and any such assignment\nwill be void.\n6. CONFIDENTIALITY AND NON-DISCLOSURE. It is recognized that Mr. Beyer has acquired and may acquire confidential information,\nincluding trade secrets, computer software, and proprietary data, regarding the above matters and other affairs, products, technologies and business\nof the Company during the course of this Agreement ("Confidential Information"). Mr. Beyer hereby agrees and covenants to hold in trust and\nconfidence all such Confidential Information during and following Mr. Beyer's retention in accordance with the terms and conditions of the\nCompany's Non-Disclosure Agreement, Attachment A (attached hereto and incorporated herein by reference). At no time will Mr. Beyer divulge\nConfidential Information of the Company for any purposes other than for the benefit of the Company. Any information created by Mr. Beyer while\nengaged in any work for the Company or while using the Company materials will be deemed to be the Company Confidential Information, subject to\nthe exceptions in Attachment A, and will be so marked and treated upon creation by Mr. Beyer.\n7.\nOWNERSHIP OF WORK PRODUCT. Mr. Beyer agrees that with respect to any work performed for the Company hereunder which results in\nMr. Beyer's preparation of written or verbal reports, studies, analyses, research data, proposals, strategies or similar work product, the Company will\nretain exclusive right and title in and to said work product and that Mr. Beyer may not otherwise use or disclose same to third parties without the\nCompany's prior written approval.\n8. COMPLIANCE WITH COMPANY STANDARDS OF CONDUCT AND COMPLIANCE WITH LAW. The Company conducts its business\nin\nstrict compliance with applicable laws, rules, and regulations and with honesty, integrity, and a strong commitment to the highest standards of\nbusiness ethics. Mr. Beyer agrees at all times to adhere to the Company policies in this regard, as well as any other customary standards of business\nconduct including conduct prescribed by law or regulation. Mr. Beyer further agrees that he will at all times comply with all federal, state, and\nlocal\nlaws, regulations, and orders in the performance of this Agreement.\n9. NOTICES. All notices and other communications hereunder will be in writing and will be deemed given if delivered personally, telecopied (which\nis confirmed) or dispatched by a nationally recognized overnight courier service to the parties at the following addresses (or at such other address for\na party as will be specified by like notice):\na.\nif to the Company.:\nIntersil Corporation\n1001 Murphy Ranch Road\nMilpitas, CA 95035\nAttn: Office of the General Counsel\nFax: 408/321-9594\nEmail: ttokos@Intersil.com\nb.\nif to Mr. Beyer:\nRichard Beyer\nHome Address\n45\n10. GOVERNING LAW. This Agreement will be governed by, subject to, and construed in accordance with the laws of the State of California.\nVenue will lie in the State of California for all causes of action under this Agreement, and both the Company and Mr. Beyer agree to be subject to the\nstate and Federal courts of California.\n11. CONSTRUCTION. This Agreement has been negotiated by the parties and will be interpreted fairly in accordance with its terms and without any\nconstruction in favor of or against either party.\n12. CAPTIONS AND HEADINGS. The captions and section and headings used in this Agreement are inserted for convenience only and will not\naffect the meaning or interpretation of this Agreement.\n13. WAIVER. The waiver by either party of a breach of or a default under any provision of this Agreement will not be effective unless in writing and\nwill\nnot be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor will any delay\nor omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any\nright or remedy.\n14. SEVERABILITY. If the application of any provision of this Agreement to any particular facts or circumstances will for any reason be held to be\ninvalid, illegal or unenforceable by a court, arbitration panel or other tribunal of competent jurisdiction, then (a) the validity, legality and\nenforceability of such provision as applied to any other particular facts or circumstances, and the other provisions of this Agreement, will not in any\nway be affected or impaired thereby and (b) such provision will be enforced to the maximum extent possible so as to effect the intent of the parties.\nIf, moreover, any provision contained in this Agreement will for any reason be held to be excessively broad as to duration, geographical scope,\nactivity or subject, it will be construed by limiting and reducing it, so as to be enforceable to the extent compatible with applicable law.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.\nINTERSIL CORPORATION\nRichard M. Beyer\nBy: /S/ Thomas C. Tokos\n/s/ Richard Beyer\nVice President, General Counsel & Secretary\nName: Richard Beyer\n46\nAttachment A\nNon-Disclosure Agreement (NDA)\nThis non-disclosure agreement ("NDA") is made by and between the Parties to the Agreement with an effective date the same as that of the\nAgreement. Either Party may receive or disclose Confidential Information under this NDA. The Party disclosing Confidential Information shall be\nconsidered the "Discloser." The Party receiving Confidential Information shall be considered the "Recipient." In consideration of the mutual\npromises and covenants contained in this NDA, and to assure the protection and preservation of the proprietary and/or confidential nature of the\ninformation to be disclosed or made available to each other, the Parties hereto agree as follows:\n1.\nDefinition. "Confidential Information" means any non-public information, whether disclosed orally or in tangible, machine readable, or electronic\nform, by either of the Parties to the other, which the Discloser identifies at the time of disclosure as confidential, proprietary, secret, private,\nor\nthe\nlike, or which under the circumstances surrounding disclosure gives indication that the information should be treated as confidential. Confidential\nInformation includes, without limitation, any specification, layout, design, drawing, formula, technique, algorithm, know-how, sample product, test\ndata, information related to engineering, manufacturing, sales, marketing, management or quality control, financial information or other information\nrelated to the business operations of the Discloser.\n2. Use of Confidential Information. Confidential Information disclosed hereunder may only be used for in support of and to provide the advisory\nservice described in the Agreement (hereinafter "Authorized Purpose"), and shall be used by Recipient solely in a manner that actually or potentially\nbenefits the Discloser, or shall not be used in a manner detrimental to Discloser. Each Discloser represents that it has the right to disclose\nConfidential Information to the Recipient for the Authorized Purpose(s) stated above.\n3. Protection of Confidential Information. Confidential Information may be exchanged between the Parties under this NDA to the extent necessary to\nfulfill\nthe Authorized Purpose, and shall not be used for any other purpose. Recipient acknowledges that the Discloser's Confidential Information is\na special, valuable and a unique asset, and agrees that it shall: (a) not disclose the Confidential Information to any third party without written consent\nof Discloser, (b) restrict dissemination of Confidential Information to only its employees, contractors, or agents who are directly participating in the\nAuthorized Purpose, who have a need to know the Confidential Information, and who are bound by a duty of confidentiality under terms no less\nrestrictive than contained herein concerning the use of Confidential Information, and (c) use the same degree of care as for its own information\nof\nlike importance, but at least reasonable care, in preventing disclosure of Confidential Information. Recipient further agrees not to reverse engineer,\ndecompile, disassemble any prototypes, software, hardware or other tangible objects or products provided hereunder which embody the Confidential\nInformation of the Discloser.\n4. Exceptions. This NDA imposes no obligation upon Recipient with respect to Confidential Information which is:\n(a) public or becomes publicly available through no act or failure on part of Recipient, or\n(b) approved in writing by the Discloser for public release or disclosure by the Recipient; or\n(c) disclosed to a third party by Discloser without a duty of confidentiality or is lawfully obtained by Recipient from a third party without a duty of\nconfidentiality or restriction on disclosure, or\n(d) independently known by or independently developed by the Recipient without the use of Confidential Information disclosed by the Discloser; or\n(e) required to be disclosed pursuant to the order of a court of competent jurisdiction; or otherwise required to be disclosed by law through no act\nof\nthe Recipient, provided, however, that the Recipient has notified the Discloser upon learning of the possibility that disclosure could be required\npursuant to any such law or legal order and has given the Discloser a reasonable opportunity to contest or limit the scope of such required disclosure\nand has cooperated with the Discloser toward this end.\n5. Term and Termination. This NDA shall be co-terminus with the Term of the Agreement. Termination shall not, however, affect the rights and\nobligations included herein with respect to Confidential Information disclosed hereunder prior to termination. Upon termination of this NDA, each\nParty will, and\n47\nwithin a reasonable period of time thereafter, return all Confidential Information received from the Recipient and copies made thereof by the\nRecipient, or, if acceptable to the Discloser, certify by written memorandum that all such Confidential Information has been destroyed. Each\nParty\nmay retain one archival copy in its Legal Department to be used only in resolving a dispute concerning this NDA. The obligations of the Recipient\nwith respect to non-disclosure and use shall survive the expiration of this NDA indefinitely.\n6. Rights and Remedies. Each Party acknowledges that damages for improper disclosure of Confidential Information may be irreparable; therefore,\nthe injured Party is entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies.\n7.\nNo Formal Business Relationship. This NDA is for the purpose of protecting Confidential Information only and shall not be construed to create\nany agency, partnership, joint venture or other such relationship between the Parties except as defined in the Agreement, nor shall the exchange of\nConfidential Information represent any commitment by the Parties to enter into any business relationship. If the Parties desire to pursue business\nopportunities, the Parties shall execute a separate written NDA to govern such business relationship.\n8. No Obligation to Disclose or Warranty. Neither Party has an obligation to supply Confidential Information hereunder. Confidential Information\ndisclosed hereunder is provided on an "AS IS" basis, without any warranty, whether express, implied or otherwise, regarding its accuracy, usefulness\nor performance.\n9. No Transfer or License of Intellectual Property. Recipient agrees that all Confidential Information received is and will remain the sole property\nof\nDiscloser. Neither the execution of this NDA, nor the furnishing of any Confidential Information hereunder shall be construed as a grant by\nimplication, estoppel or otherwise, of a license by either Party to the other to make, have made, use or sell any product using Confidentia\nInformation or as a license under any patent, patent application, utility model, copyright, maskwork right, or any other intellectual property right.\n10.\nAssignment. This NDA and the rights and obligations hereunder may not be transferred or assigned by one party without the prior written\napproval\nof\nthe other party hereto. Notwithstanding the foregoing, either party hereto may assign this NDA and corresponding rights hereunder\nto\na\nsuccessor-in-interest (a) to all or part of the business unit to which this NDA relates, and (b) that agrees to abide by all obligations herein.\n11. Export Control Laws and Regulations. Recipient agrees it will not, in any form, export, re-export, resell, ship or divert or cause to be exported,\nre-exported, re-sold, shipped or diverted, directly or indirectly, any product or technical data furnished hereunder, or the direct product of such\ntechnical data, to any country for which the United States Government requires an export license, or other approval, without first obtaining such\nlicense or approval.\n12. Applicable Law. The law of the state of Delaware, U.S.A. except for its choice of laws rules shall be used to construe and govern this NDA. The\nprevailing party in any action to enforce this NDA shall be entitled to recover reasonable attorneys fees and costs.\n13. Binding Effect. This NDA shall be binding upon each Party, its affiliates, respective employees, agents, representatives, successors, and assigns.\nNo change, modification, alteration, or addition to any provision hereof shall be binding unless in writing and signed by authorized representatives of\nboth Parties.\n14. Entire NDA. This NDA contains the entire understanding between the Parties relative to the protection of Confidential Information and\nsupersedes all prior and collateral communications, reports, and understandings between the Parties in respect thereto.\n48	EX-10.03 4 dex1003.htm CONSULTING AGREEMENT\nExhibit 10.03\nCONSULTING AGREEMENT\nThis consulting agreement (the “Agreement”), is entered into as of March 17, 2008 (the “Effective Date”) by and among Intersil Corporation, on\nbehalf of itself and its subsidiaries (hereinafter “the Company”), with a place of business at 1001 Murphy Ranch Road, Milpitas, California 95035,\nand Richard M. Beyer, whose address is 13503 Fremont Road, Los Altos, CA 94022 (hereinafter “Mr. Beyer”).\nWHEREAS, Mr. Beyer resigned his positions as Director and Chief Executive Officer of the Company, effective February 13, 2008;\nWHEREAS, since his resignation as Director and Chief Executive Officer of the Company as of February 13, 2008, Mr. Beyer has continued his\nemployment with the Company in the capacity of a non-officer special advisor to the Chief Executive Officer and Board of Directors (the “Board”);\nWHEREAS, Mr. Beyer has informed the Board of his intent to terminate his employment with the Company, effective March 16, 2008; and\nWHEREAS, the Board has determined that it is in the best interests of the Company that Mr. Beyer continue to be available to provide advisory\nservices to the new Chief Executive Officer and Board after his termination of his employment through a transition period ending on April 16, 2008.\nAGREEMENT\nNOW, THEREFORE, in consideration of the premises and mutual promises herein contained, the parties do hereby agree as follows:\n1. CONSULTING SERVICES. During the term of this Agreement, Mr. Beyer will make himself available for and provide (upon reasonable request\nfrom the Chief Executive Officer or Board which will not significantly interfere with obligations Mr. Beyer may have to his new employer) up to ten\n(10) hours per week of advice to the Company’s Chief Executive Officer and/or the Board concerning business matters, financial matters, customer\nrelationship issues and such other Company matters with which he has familiarity (the “Consulting Services”). Mr. Beyer will comply with and be\nbound by the Company’s operating policies and procedures (as applicable to consulting arrangements) that are in effect during the term of this\nAgreement. This Agreement does not supersede any prior employment agreement Mr. Beyer has or had with the Company.\n2. TERM. The term of this Agreement will commence on the Effective Date and will end on April 16, 2008 (the “Consulting Term”).\n3. CONSIDERATION. Mr. Beyer will be compensated as follows:\n(a) Stock Options. During the Consulting Term, those employee stock options previously issued to Mr. Beyer by the Company during Mr. Beyer’s\nemployment with the Company that are scheduled to become vested on or before April 16, 2008 will continue to vest through the Consulting Term\nand will be exercisable in accordance with the terms of such grants, and subject to the terms of the Company’s 1999 Equity Compensation Plan (the\n“1999 Equity Plan”). Those employee stock options previously granted to Mr. Beyer that would become vested after April 16, 2008 will become\nunexercisable and expire on March 16, 2008.\n44\n(b) Deferred Stock Units. During the Consulting Term, those deferred stock units (“DSUs) previously issued to Mr. Beyer during Mr. Beyer’s\nemployment with the Company that are scheduled to become vested on or before April 16, 2008 will continue to vest through the Consulting Term.\nThose DSUs previously granted to Mr. Beyer that would become vested after April 16, 2008 will terminate and expire on March 16, 2008.\nDistribution of any vested DSUs will be in accordance with the terms of the respective DSU award and the terms of the 1999 Equity Plan.\n4. INDEPENDENT CONTRACTOR. During the Consulting Term, Mr. Beyer will be an independent contractor, and not an employee or agent of the\nCompany for any purpose, and Mr. Beyer will have no authority to represent or bind the Company in any capacity with any party.\n5. ASSIGNMENT . This Agreement is a personal services agreement and may not be transferred or assigned by Mr. Beyer, and any such assignment\nwill be void.\n6. CONFIDENTIALITY AND NON-DISCLOSURE. It is recognized that Mr. Beyer has acquired and may acquire confidential information,\nincluding trade secrets, computer software, and proprietary data, regarding the above matters and other affairs, products, technologies and business\nof the Company during the course of this Agreement (“Confidential Information”). Mr. Beyer hereby agrees and covenants to hold in trust and\nconfidence all such Confidential Information during and following Mr. Beyer’s retention in accordance with the terms and conditions of the\nCompany’s Non-Disclosure Agreement, Attachment A (attached hereto and incorporated herein by reference). At no time will Mr. Beyer divulge\nConfidential Information of the Company for any purposes other than for the benefit of the Company. Any information created by Mr. Beyer while\nengaged in any work for the Company or while using the Company materials will be deemed to be the Company Confidential Information, subject to\nthe exceptions in Attachment A, and will be so marked and treated upon creation by Mr. Beyer.\n7. OWNERSHIP OF WORK PRODUCT. Mr. Beyer agrees that with respect to any work performed for the Company hereunder which results in\nMr. Beyer’s preparation of written or verbal reports, studies, analyses, research data, proposals, strategies or similar work product, the Company will\nretain exclusive right and title in and to said work product and that Mr. Beyer may not otherwise use or disclose same to third parties without the\nCompany’s prior written approval.\n8. COMPLIANCE WITH COMPANY STANDARDS OF CONDUCT AND COMPLIANCE WITH LAW. The Company conducts its business in\nstrict compliance with applicable laws, rules, and regulations and with honesty, integrity, and a strong commitment to the highest standards of\nbusiness ethics. Mr. Beyer agrees at all times to adhere to the Company policies in this regard, as well as any other customary standards of business\nconduct including conduct prescribed by law or regulation. Mr. Beyer further agrees that he will at all times comply with all federal, state, and local\nlaws, regulations, and orders in the performance of this Agreement.\n9. NOTICES . All notices and other communications hereunder will be in writing and will be deemed given if delivered personally, telecopied (which\nis confirmed) or dispatched by a nationally recognized overnight courier service to the parties at the following addresses (or at such other address for\na party as will be specified by like notice):\na.\nif to the Company:\nIntersil Corporation\n1001 Murphy Ranch Road\nMilpitas, CA 95035\nAttn: Office of the General Counsel\nFax: 408/321-9594\nEmail: ttokos@Intersil.com\nb. if to Mr. Beyer:\nRichard Beyer\nHome Address\n45\n10. GOVERNING LAW. This Agreement will be governed by, subject to, and construed in accordance with the laws of the State of California.\nVenue will lie in the State of California for all causes of action under this Agreement, and both the Company and Mr. Beyer agree to be subject to the\nstate and Federal courts of California.\n11. CONSTRUCTION. This Agreement has been negotiated by the parties and will be interpreted fairly in accordance with its terms and without any\nconstruction in favor of or against either party.\n12. CAPTIONS AND HEADINGS. The captions and section and headings used in this Agreement are inserted for convenience only and will not\naffect the meaning or interpretation of this Agreement.\n13. WAIVER. The waiver by either party of a breach of or a default under any provision of this Agreement will not be effective unless in writing and\nwill not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor will any delay\nor omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any\nright or remedy.\n14. SEVERABILITY. If the application of any provision of this Agreement to any particular facts or circumstances will for any reason be held to be\ninvalid, illegal or unenforceable by a court, arbitration panel or other tribunal of competent jurisdiction, then (a) the validity, legality and\nenforceability of such provision as applied to any other particular facts or circumstances, and the other provisions of this Agreement, will not in any\nway be affected or impaired thereby and (b) such provision will be enforced to the maximum extent possible so as to effect the intent of the parties.\nIf, moreover, any provision contained in this Agreement will for any reason be held to be excessively broad as to duration, geographical scope,\nactivity or subject, it will be construed by limiting and reducing it, so as to be enforceable to the extent compatible with applicable law.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.\nINTERSIL CORPORATION\nRichard M. Beyer\nBy: /S/ Thomas C. Tokos\n/s/ Richard Beyer\nVice President, General Counsel & Secretary\nName: Richard Beyer\n46\nAttachment A\nNon-Disclosure Agreement (NDA)\nThis non-disclosure agreement (“NDA”) is made by and between the Parties to the Agreement with an effective date the same as that of the\nAgreement. Either Party may receive or disclose Confidential Information under this NDA. The Party disclosing Confidential Information shall be\nconsidered the “Discloser.” The Party receiving Confidential Information shall be considered the “Recipient.” In consideration of the mutual\npromises and covenants contained in this NDA, and to assure the protection and preservation of the proprietary and/or confidential nature of the\ninformation to be disclosed or made available to each other, the Parties hereto agree as follows:\n1. Definition. “Confidential Information” means any non-public information, whether disclosed orally or in tangible, machine readable, or electronic\nform, by either of the Parties to the other, which the Discloser identifies at the time of disclosure as confidential, proprietary, secret, private, or the\nlike, or which under the circumstances surrounding disclosure gives indication that the information should be treated as confidential. Confidential\nInformation includes, without limitation, any specification, layout, design, drawing, formula, technique, algorithm, know-how, sample product, test\ndata, information related to engineering, manufacturing, sales, marketing, management or quality control, financial information or other information\nrelated to the business operations of the Discloser.\n2. Use of Confidential Information. Confidential Information disclosed hereunder may only be used for in support of and to provide the advisory\nservice described in the Agreement (hereinafter “Authorized Purpose”), and shall be used by Recipient solely in a manner that actually or potentially\nbenefits the Discloser, or shall not be used in a manner detrimental to Discloser. Each Discloser represents that it has the right to disclose\nConfidential Information to the Recipient for the Authorized Purpose(s) stated above.\n3. Protection of Confidential Information. Confidential Information may be exchanged between the Parties under this NDA to the extent necessary to\nfulfill the Authorized Purpose, and shall not be used for any other purpose. Recipient acknowledges that the Discloser’s Confidential Information is\na special, valuable and a unique asset, and agrees that it shall: (a) not disclose the Confidential Information to any third party without written consent\nof Discloser, (b) restrict dissemination of Confidential Information to only its employees, contractors, or agents who are directly participating in the\nAuthorized Purpose, who have a need to know the Confidential Information, and who are bound by a duty of confidentiality under terms no less\nrestrictive than contained herein concerning the use of Confidential Information, and (c) use the same degree of care as for its own information of\nlike importance, but at least reasonable care, in preventing disclosure of Confidential Information. Recipient further agrees not to reverse engineer,\ndecompile, disassemble any prototypes, software, hardware or other tangible objects or products provided hereunder which embody the Confidential\nInformation of the Discloser.\n4. Exceptions. This NDA imposes no obligation upon Recipient with respect to Confidential Information which is:\n(a) public or becomes publicly available through no act or failure on part of Recipient, or\n(b) approved in writing by the Discloser for public release or disclosure by the Recipient; or\n(c) disclosed to a third party by Discloser without a duty of confidentiality or is lawfully obtained by Recipient from a third party without a duty of\nconfidentiality or restriction on disclosure, or\n(d) independently known by or independently developed by the Recipient without the use of Confidential Information disclosed by the Discloser; or\n(e) required to be disclosed pursuant to the order of a court of competent jurisdiction; or otherwise required to be disclosed by law through no act of\nthe Recipient, provided, however, that the Recipient has notified the Discloser upon learning of the possibility that disclosure could be required\npursuant to any such law or legal order and has given the Discloser a reasonable opportunity to contest or limit the scope of such required disclosure\nand has cooperated with the Discloser toward this end.\n5. Term and Termination. This NDA shall be co-terminus with the Term of the Agreement. Termination shall not, however, affect the rights and\nobligations included herein with respect to Confidential Information disclosed hereunder prior to termination. Upon termination of this NDA, each\nParty will, and\n47\nwithin a reasonable period of time thereafter, return all Confidential Information received from the Recipient and copies made thereof by the\nRecipient, or, if acceptable to the Discloser, certify by written memorandum that all such Confidential Information has been destroyed. Each Party\nmay retain one archival copy in its Legal Department to be used only in resolving a dispute concerning this NDA. The obligations of the Recipient\nwith respect to non-disclosure and use shall survive the expiration of this NDA indefinitely.\n6. Rights and Remedies. Each Party acknowledges that damages for improper disclosure of Confidential Information may be irreparable; therefore,\nthe injured Party is entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies.\n7. No Formal Business Relationship. This NDA is for the purpose of protecting Confidential Information only and shall not be construed to create\nany agency, partnership, joint venture or other such relationship between the Parties except as defined in the Agreement, nor shall the exchange of\nConfidential Information represent any commitment by the Parties to enter into any business relationship. If the Parties desire to pursue business\nopportunities, the Parties shall execute a separate written NDA to govern such business relationship.\n8. No Obligation to Disclose or Warranty. Neither Party has an obligation to supply Confidential Information hereunder. Confidential Information\ndisclosed hereunder is provided on an “AS IS” basis, without any warranty, whether express, implied or otherwise, regarding its accuracy, usefulness\nor performance.\n9. No Transfer or License of Intellectual Property. Recipient agrees that all Confidential Information received is and will remain the sole property of\nDiscloser. Neither the execution of this NDA, nor the furnishing of any Confidential Information hereunder shall be construed as a grant by\nimplication, estoppel or otherwise, of a license by either Party to the other to make, have made, use or sell any product using Confidential\nInformation or as a license under any patent, patent application, utility model, copyright, maskwork right, or any other intellectual property right.\n10. Assignment. This NDA and the rights and obligations hereunder may not be transferred or assigned by one party without the prior written\napproval of the other party hereto. Notwithstanding the foregoing, either party hereto may assign this NDA and corresponding rights hereunder to a\nsuccessor-in-interest (a) to all or part of the business unit to which this NDA relates, and (b) that agrees to abide by all obligations herein.\n11. Export Control Laws and Regulations. Recipient agrees it will not, in any form, export, re-export, resell, ship or divert or cause to be exported,\nre-exported, re-sold, shipped or diverted, directly or indirectly, any product or technical data furnished hereunder, or the direct product of such\ntechnical data, to any country for which the United States Government requires an export license, or other approval, without first obtaining such\nlicense or approval.\n12. Applicable Law. The law of the state of Delaware, U.S .A. except for its choice of laws rules shall be used to construe and govern this NDA. The\nprevailing party in any action to enforce this NDA shall be entitled to recover reasonable attorneys fees and costs.\n13. Binding Effect. This NDA shall be binding upon each Party, its affiliates, respective employees, agents, representatives, successors, and assigns.\nNo change, modification, alteration, or addition to any provision hereof shall be binding unless in writing and signed by authorized representatives of\nboth Parties.\n14. Entire NDA. This NDA contains the entire understanding between the Parties relative to the protection of Confidential Information and\nsupersedes all prior and collateral communications, reports, and understandings between the Parties in respect thereto.\n48
2268c5d1120f1abd57170d689f496418.pdf	effective_date jurisdiction party term	Exhibit A\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this "Agreement"), is made and entered into as of the date on which it is fully\nexecuted, as indicated by signatures below, by and among First Financial Northwest, Inc. (the "Company"), the Stilwell Group (composed of\nStilwell Associates, L.P., Stilwell Partners, L.P., Stilwell Value Partners II, L.P., Stilwell Value Partners V, L.P., Stilwell Value Partners VI, L.P.,\nStilwell Value Partners VII, L.P., Stilwell Value LLC, Stilwell Associates Insurance Fund of The S.A.L .I . Multi-Series Fund L.P., Stilwell Advisers\nLLC, and Joseph Stilwell, an individual, and their employees and representatives), and Spencer L. Schneider, a director nominee of the Stilwell\nGroup ("Schneider").\nWHEREAS, the Company has agreed to place Schneider on its board of directors, subject to approval by interested state and\nfederal regulatory agencies;\nWHEREAS, the Company, the Stilwell Group and Schneider have agreed that it is in their mutual interests to enter into this\nAgreement as hereinafter described.\nNOW THEREFORE, for good and valuable consideration, the parties hereto mutually agree as follows:\n1.\nIn connection with Schneider serving on the Company's board, Schneider and other Company employees, directors, and\nagents may divulge nonpublic information concerning the Company and its subsidiaries to the Stilwell Group and such information may be shared\namong the Stilwell Group's employees and agents who have a need to know such information. The Stilwell Group expressly agrees to maintain all\nnonpublic information concerning the Company and its subsidiaries in confidence. The Stilwell Group expressly acknowledges that federal and\nstate securities laws may prohibit a person from purchasing or selling securities of a company, or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such other person is likely to purchase or sell such securities, while the first-\nmentioned person is in possession of material nonpublic information about such company. The Stilwell Group agrees to comply with the Company's\ninsider trading and disclosure policies, as in effect from time to time, to the same extent as if it were a director of the Company. To the extent the\nnonpublic information concerning the Company and its subsidiaries received by the Stilwell Group is material, this Agreement is intended to satisfy\nthe confidentiality agreement exclusion of Regulation FD of the Securities and Exchange Commission (the "SEC") set forth in Section 243.100(b)\n(2)(ii) of Regulation FD.\n2.\nEach of the Stilwell Group and Schneider represents and warrants to the Company that this Agreement has been duly and\nvalidly authorized (in the case of the entity members of the Stilwell Group), executed and delivered by them, and is a valid and binding agreement\nenforceable against them in accordance with its terms.\n3.\nSchneider hereby further represents and warrants to the Company that: (a) he satisfies all of the qualifications to be a\ndirector of the Company as set forth in Article III, Section 4 of the Company's bylaws and any additional applicable qualifications under the laws of\nthe State of Washington or under the regulations of any bank regulatory authority, and that he is not in any way precluded from serving as a director\nby order or other action of any court, regulatory or other governmental authority; and (b) no event has occurred with respect to Schneider that would\nrequire disclosure in a document filed by the Company with the SEC pursuant to the Securities Act of 1933, as amended, or the Securities Exchange\nAct of 1934, as amended, under Item 401(f) of SEC Regulation S-K.\n4.\nThe Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic\ninformation of the Company and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this\nAgreement and that, in addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable\nrelief as a remedy for such breach, and in conjunction therewith the Company shall not be required to post any bond.\n5.\nThis Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and\nsupersedes all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not\nreferred to herein.\n6.\nThis Agreement shall be governed by, and construed in accordance with, the laws of the State of Washington, without\nregard to choice of law principles that may otherwise compel the application of the laws of any other jurisdiction. Each of the parties hereby\nirrevocably consents to the exclusive jurisdiction of the state and federal courts sitting in the State of Washington to resolve any dispute arising from\nthis Agreement and waives any defense of inconvenient or improper forum.\n7.\nThe terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or\nportion thereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties.\n8.\nAll representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this\nAgreement.\n9.\nThis Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a\nwritten agreement executed by all of the parties hereto.\n10.\nThis Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall\nconstitute one and the same agreement.\n16\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned as\nof the day and year first above written.\nTHE STILWELL GROUP\nFIRST FINANCIAL NORTHWEST, INC.\n/s/Joseph Stilwell\n/s/Victor Karpiak\nBy:\nDate\nJoseph Stilwell\n12-20, 2012\nBy:\nDate\nVictor Karpiak, President, Chief Executive Officer\nand Chairman of the Board\nDecember 19, 2012\nSPENCER L. SCHNEIDER\n/s/Spencer L. Schneider\nDate: 12/20, 2012\n17	Exhibit A\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this "Agreement"), is made and entered into as of the date on which it is fully\nexecuted, as indicated by signatures below, by and among First Financial Northwest, Inc. (the "Company"), the Stilwell Group (composed of\nStilwell Associates, L.P., Stilwell Partners, L.P., Stilwell Value Partners II, L.P., Stilwell Value Partners V, L.P., Stilwell Value Partners VI, L.P,,\nStilwell Value Partners VII, L.P., Stilwell Value LLC, Stilwell Associates Insurance Fund of The S.A.L.I. Multi-Series Fund L.P., Stilwell Advisers\nLLC, and Joseph Stilwell, an individual, and their employees and representatives), and Spencer L. Schneider, a director nominee of the Stilwell\nGroup ("Schneider").\nWHEREAS, the Company has agreed to place Schneider on its board of directors, subject to approval by interested state and\nfederal regulatory agencies;\nWHEREAS, the Company, the Stilwell Group and Schneider have agreed that it is in their mutual interests to enter into this\nAgreement as hereinafter described.\nNOW THEREFORE, for good and valuable consideration, the parties hereto mutually agree as follows:\n1. In connection with Schneider serving on the Company's board, Schneider and other Company employees, directors, and\nagents may divulge nonpublic information concerning the Company and its subsidiaries to the Stilwell Group and such information may be shared\namong the Stilwell Group's employees and agents who have a need to know such information. The Stilwell Group expressly agrees to maintain all\nnonpublic information concerning the Company and its subsidiaries in confidence. The Stilwell Group expressly acknowledges that federal and\nstate securities laws may prohibit a person from purchasing or selling securities of a company, or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such other person is likely to purchase or sell such securities, while the first-\nmentioned person is in possession of material nonpublic information about such company. The Stilwell Group agrees to comply with the Company's\ninsider trading and disclosure policies, as in effect from time to time, to the same extent as if it were a director of the Company. To the extent the\nnonpublic information concerning the Company and its subsidiaries received by the Stilwell Group is material, this Agreement is intended to satisfy\nthe confidentiality agreement exclusion of Regulation FD of the Securities and Exchange Commission (the "SEC") set forth in Section 243.100(b)\n(2)(ii) of Regulation FD.\n2. Each of the Stilwell Group and Schneider represents and warrants to the Company that this Agreement has been duly and\nvalidly authorized (in the case of the entity members of the Stilwell Group), executed and delivered by them, and is a valid and binding agreement\nenforceable against them in accordance with its terms.\n3. Schneider hereby further represents and warrants to the Company that: (a) he satisfies all of the qualifications to be a\ndirector of the Company as set forth in Article III, Section 4 of the Company's bylaws and any additional applicable qualifications under the laws of\nthe State of Washington or under the regulations of any bank regulatory authority, and that he is not in any way precluded from serving as a director\nby order or other action of any court, regulatory or other governmental authority; and (b) no event has occurred with respect to Schneider that would\nrequire disclosure in a document filed by the Company with the SEC pursuant to the Securities Act of 1933, as amended, or the Securities Exchange\nAct of 1934, as amended, under Item 401(f) of SEC Regulation S-K.\n4. The Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic\ninformation of the Company and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this\nAgreement and that, in addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable\nrelief as a remedy for such breach, and in conjunction therewith the Company shall not be required to post any bond.\n5. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and\nsupersedes all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not\nreferred to herein.\n6. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Washington, without\nregard to choice of law principles that may otherwise compel the application of the laws of any other jurisdiction. Each of the parties hereby\nirrevocably consents to the exclusive jurisdiction of the state and federal courts sitting in the State of Washington to resolve any dispute arising from\nthis Agreement and waives any defense of inconvenient or improper forum.\n7. The terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or\nportion thereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties.\n8. All representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this\nAgreement.\n9. This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a\nwritten agreement executed by all of the parties hereto.\n10. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall\nconstitute one and the same agreement.\n16\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned as\nof the day and year first above written.\nTHE STILWELL GROUP FIRST FINANCIAL NORTHWEST, INC.\n/s/Joseph Stilwell /s/Victor Karpiak\nBy: Joseph Stilwell By: Victor Karpiak, President, Chief Executive Officer\nand Chairman of the Board\nDate 12-20, 2012\nDate December 19, 2012\nSPENCER L. SCHNEIDER\n/s/Spencer L. Schneider\nDate: 12/20, 2012\n17	Exhibit A\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this "Agreement"), is made and entered into as of the date on which it is fully\nexecuted, as indicated by signatures below, by and among First Financial Northwest, Inc. (the "Company"), the Stilwell Group (composed of\nStilwell Associates, L.P., Stilwell Partners, L.P., Stilwell Value Partners II, L.P., Stilwell Value Partners V, L.P., Stilwell Value Partners VI, L.P.,\nStilwell Value Partners VII, L.P., Stilwell Value LLC, Stilwell Associates Insurance Fund of The S.A.L.I. Multi-Series Fund L.P., Stilwell Advisers\nLLC, and Joseph Stilwell, an individual, and their employees and representatives), and Spencer L. Schneider, a director nominee of the Stilwell\nGroup ("Schneider").\nWHEREAS, the Company has agreed to place Schneider on its board of directors, subject to approval by interested state and\nfedera regulatory agencies;\nWHEREAS, the Company, the Stilwell Group and Schneider have agreed that it is in their mutual interests to enter into this\nAgreement as hereinafter described.\nNOW THEREFORE, for good and valuable consideration, the parties hereto mutually agree as follows:\n1.\nIn connection with Schneider serving on the Company's board, Schneider and other Company employees, directors, and\nagents may divulge nonpublic information concerning the Company and its subsidiaries to the Stilwell Group and such information may be shared\namong the Stilwell Group's employees and agents who have a need to know such information. The Stilwell Group expressly agrees to\nmaintain\nall\nnonpublic information concerning the Company and its subsidiaries in confidence. The Stilwell Group expressly acknowledges that federal and\nstate securities laws may prohibit a person from purchasing or selling securities of a company, or from communicating such information to any other\nperson\nunder circumstances in which it is reasonably foreseeable that such other person is likely to purchase or sell such securities, while the first-\nmentioned person is in possession of material nonpublic information about such company. The Stilwell Group agrees to comply with the Company's\ninsider trading and disclosure policies, as in effect from time to time, to the same extent as if it were a director of the Company. To the extent the\nnonpublic information concerning the Company and its subsidiaries received by the Stilwell Group is material, this Agreement is intended to satisfy\nthe confidentiality agreement exclusion of Regulation FD of the Securities and Exchange Commission (the "SEC") set forth in Section 243.100(b)\n(2)(ii) of Regulation FD.\n2.\nEach of the Stilwell Group and Schneider represents and warrants to the Company that this Agreement has been duly and\nvalidly authorized (in the case of the entity members of the Stilwell Group), executed and delivered by them, and is a valid and binding agreement\nenforceable against them in accordance with its terms.\n3.\nSchneider hereby further represents and warrants to the Company that: (a) he satisfies all of the qualifications to be a\ndirector of the Company as set forth in Article III, Section 4 of the Company's bylaws and any additional applicable qualifications under the laws of\nthe\nState\nof\nWashington or under the regulations of any bank regulatory authority, and that he is not in any way precluded from serving as a director\nby order or other action of any court, regulatory or other governmental authority; and (b) no event has occurred with respect to Schneider that would\nrequire disclosure in a document filed by the Company with the SEC pursuant to the Securities Act of 1933, as amended, or the Securities Exchange\nAct of 1934, as amended, under Item 401(f) of SEC Regulation S-K.\n4.\nThe Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic\ninformation of the Company and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this\nAgreement and that, in addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable\nrelief as a remedy for such breach, and in conjunction therewith the Company shall not be required to post any bond.\n5.\nThis Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and\nsupersedes all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not\nreferred to herein.\n6.\nThis Agreement shall be governed by, and construed in accordance with, the laws of the State of Washington, without\nregard to choice of law principles that may otherwise compel the application of the laws of any other jurisdiction. Each of the parties hereby\nirrevocably consents to the exclusive jurisdiction of the state and federal courts sitting in the State of Washington to resolve any dispute arising from\nthis Agreement and waives any defense of inconvenient or improper forum.\n7.\nThe terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or\nportion thereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties.\n8.\nAll representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this\nAgreement.\n9.\nThis Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery\nof\na\nwritten agreement executed by all of the parties hereto.\n10.\nThis Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall\nconstitute one and the same agreement.\n16\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned as\nof the day and year first above written.\nTHE STILWELL GROUP\nFIRST FINANCIAL NORTHWEST, INC.\n/s/Joseph Stilwell\n/s/Victor Karpiak\nBy: Joseph Stilwell\nBy:\nVictor Karpiak, President, Chief Executive Officer\nand Chairman of the Board\nDate 12-20, 2012\nDate December 19, 2012\nSPENCER L. SCHNEIDER\n/s/Spencer L. Schneider\nDate: 12/20, 2012\n17	Exhibit A\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this "Agreement"), is made and entered into as of the date on which it is fully\nexecuted, as indicated by signatures below, by and among First Financial Northwest, Inc. (the "Company"), the Stilwell Group (composed of\nStilwell Associates, L.P., Stilwell Partners, L.P., Stilwell Value Partners II, L.P., Stilwell Value Partners V, L.P., Stilwell Value Partners VI, L.P.,\nStilwell Value Partners VII, L.P., Stilwell Value LLC, Stilwell Associates Insurance Fund of The S.A.L .I . Multi-Series Fund L.P., Stilwell Advisers\nLLC, and Joseph Stilwell, an individual, and their employees and representatives), and Spencer L. Schneider, a director nominee of the Stilwell\nGroup ("Schneider").\nWHEREAS, the Company has agreed to place Schneider on its board of directors, subject to approval by interested state and\nfederal regulatory agencies;\nWHEREAS, the Company, the Stilwell Group and Schneider have agreed that it is in their mutual interests to enter into this\nAgreement as hereinafter described.\nNOW THEREFORE, for good and valuable consideration, the parties hereto mutually agree as follows:\n1.\nIn connection with Schneider serving on the Company's board, Schneider and other Company employees, directors, and\nagents may divulge nonpublic information concerning the Company and its subsidiaries to the Stilwell Group and such information may be shared\namong the Stilwell Group's employees and agents who have a need to know such information. The Stilwell Group expressly agrees to maintain all\nnonpublic information concerning the Company and its subsidiaries in confidence. The Stilwell Group expressly acknowledges that federal and\nstate securities laws may prohibit a person from purchasing or selling securities of a company, or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such other person is likely to purchase or sell such securities, while the first-\nmentioned person is in possession of material nonpublic information about such company. The Stilwell Group agrees to comply with the Company's\ninsider trading and disclosure policies, as in effect from time to time, to the same extent as if it were a director of the Company. To the extent the\nnonpublic information concerning the Company and its subsidiaries received by the Stilwell Group is material, this Agreement is intended to satisfy\nthe confidentiality agreement exclusion of Regulation FD of the Securities and Exchange Commission (the "SEC") set forth in Section 243.100(b)\n(2)(ii) of Regulation FD.\n2.\nEach of the Stilwell Group and Schneider represents and warrants to the Company that this Agreement has been duly and\nvalidly authorized (in the case of the entity members of the Stilwell Group), executed and delivered by them, and is a valid and binding agreement\nenforceable against them in accordance with its terms.\n3.\nSchneider hereby further represents and warrants to the Company that: (a) he satisfies all of the qualifications to be a\ndirector of the Company as set forth in Article III, Section 4 of the Company's bylaws and any additional applicable qualifications under the laws of\nthe State of Washington or under the regulations of any bank regulatory authority, and that he is not in any way precluded from serving as a director\nby order or other action of any court, regulatory or other governmental authority; and (b) no event has occurred with respect to Schneider that would\nrequire disclosure in a document filed by the Company with the SEC pursuant to the Securities Act of 1933, as amended, or the Securities Exchange\nAct of 1934, as amended, under Item 401(f) of SEC Regulation S-K.\n4.\nThe Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic\ninformation of the Company and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this\nAgreement and that, in addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable\nrelief as a remedy for such breach, and in conjunction therewith the Company shall not be required to post any bond.\n5.\nThis Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and\nsupersedes all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not\nreferred to herein.\n6.\nThis Agreement shall be governed by, and construed in accordance with, the laws of the State of Washington, without\nregard to choice of law principles that may otherwise compel the application of the laws of any other jurisdiction. Each of the parties hereby\nirrevocably consents to the exclusive jurisdiction of the state and federal courts sitting in the State of Washington to resolve any dispute arising from\nthis Agreement and waives any defense of inconvenient or improper forum.\n7.\nThe terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or\nportion thereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties.\n8.\nAll representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this\nAgreement.\n9.\nThis Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a\nwritten agreement executed by all of the parties hereto.\n10.\nThis Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall\nconstitute one and the same agreement.\n16\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned as\nof the day and year first above written.\nTHE STILWELL GROUP\nFIRST FINANCIAL NORTHWEST, INC.\n/s/Joseph Stilwell\n/s/Victor Karpiak\nBy:\nDate\nJoseph Stilwell\n12-20, 2012\nBy:\nDate\nVictor Karpiak, President, Chief Executive Officer\nand Chairman of the Board\nDecember 19, 2012\nSPENCER L. SCHNEIDER\n/s/Spencer L. Schneider\nDate: 12/20, 2012\n17
2523f0aba286a96452c8470227e10164.pdf	effective_date jurisdiction party term	EX-4.K 4 y98596exv4wk.htm CONFIDENTIALITY AGREEMENT\nExhibit 4(k)\nCONFIDENTIALITY AGREEMENT\nBETWEEN:\nLIHIR MANAGEMENT COMPANY LIMITED, ARBN 059 005 766, as manager of LIHIR GOLD LIMITED ARBN\n069 803 998, and LIHIR GOLD LIMITED in its own right, both of 7th Floor, Pacific Place, Cnr, Champion Parade &\nMusgrave Street, Port Moresby, Papua New Guinea (“Lihir”)\nAND:\nTECHNOLOGICAL SERVICES PTY LIMITED, A.B .N. 12 002 183557 known as Rio Tinto technical Services of 55\nCollins Street, Melbourne, VIC 3001, Australia (“RTTS”)\nLihir and RTTS have entered into and will continue discussions concerning, and have undertaken and will continue to undertake activities in\nfurtherance of, the Express Purpose. In the course of these discussions and activities, Lihir has and will continue to make Confidential\nInformation available to RTTS and further Confidential Information will be generated by both parties. As a condition to these discussions and in\nconsideration for Lihir disclosing the Confidential Information to and paying the relevant projects fees, RTTS is required to enter into this\nAgreement on the following terms:\n1. “CONFIDENTIAL INFORMATION” all confidential and proprietary information concerning existing and future technology and technical\ninformation, intellectual property, ideas, know how, trade secrets, mining, processing and commercial strategies, financial and contractual\ninformation, employees, consultants, training and other programs, concepts, concepts plans and business of Lihir which is or has been\ndisclosed to RTTS in connection with the Express Purpose, or is generated by both parties or either of them in association with or furtherance\nof this Express Purpose. It includes the existence of any project referred to in the Express Purpose and the engagement of RTTS for it. It does\nnot include information, which RTTS can provide:\n1.1 either is or becomes available to the public other than as a result of disclosure by RTTS; or\n1.2 is lawfully available to RTTS on a non-confidential basis from a third party entitled to make disclosure.\n2. “EXPRESS PURPOSE” means any project for which RTTS is engaged by Lihir from time to time, including in particular but without\nlimitation the project to develop an order-of- magnitude study defining the viability of identified processing methods for the sub- economic\nresource.\n3. “INTELLECTUAL PROPERTY RIGHTS” means the rights comprised in any patent, copyright, design or trademark whether at common law\nor by statute, rights to apply for registration under a statute in respect of those or like rights and rights to protect trade secrets, know- how,\ngoodwill or confidential information.\n4. “REPRESENTATIVES” means any director, officer, employee, contractor, or adviser of RTTS to whom the Confidential Information is or has\nbeen disclosed.\n5. INTERPRETATION. A reference to:\n5.1 Confidential Information includes but is not limited to any verbal communication, documents, data, records, drawings, graphs, formulae,\nsamples, electronic data and any other means by which the Confidential Information may be conveyed, stored or reproduced; and\n5.2 any thing (including but not limited to any right) includes a part of that thing.\n6. CONFIDENTIALITY OBLIGATIONS. RTTS agrees that unless specifically and previously authorised by Lihir in writing it shall and it shall\nensure that its Representatives (who shall be limited to only those who must strictly have access to the Confidential Information for the\npurpose of the Express Purpose) shall:\n13\n6.1 not disclose, or allow anyone else to disclose, any Confidential Information to any other person;\n6.2 not make use of any Confidential Information for any purpose other than for the Express Purpose; and\n6.3 not apply for, or directly or indirectly assist any other person to apply for any Intellectual Property Rights or any other proprietary right\nin respect of any invention, process or design that is based on or utilises the Confidential Information;\n6.4 keep the Confidential Information secure and protect it from unauthorized use, reproduction, access and damage or destruction; and\n6.5 not copy or reproduce the Confidential Information other than as strictly necessary in furtherance of the Express Purpose.\n7. RETURN OF CONFIDENTIAL INFORMATION. Unless otherwise agreed in writing, on the termination of this Agreement or upon written\nnotice by Lihir, all Confidential Information whether in hard copy or electronic form will be returned to Lihir within thirty (30) days of the\ndate of such termination or notice.\n8. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS. Nothing in this Agreement nor any disclosure of information by Lihir before or\nafter its execution shall operate to confer any Intellectual Property Rights on RTTS.\n9. OTHER TERMS. RTTS acknowledge and agrees:\n9.1 that any provision in this Agreement found to be invalid or unenforceable shall not affect any other provision in this Agreement;\n9.2 that Lihir’s failure to insist on strict performance of any provision of this Agreement shall not be deemed a waiver of any subsequent\nbreach of such provision;\n9.3 that this Agreement shall not be construed to exclude the operation of any principle of law or equity intended to protect and preserve the\nconfidentiality of the Confidential Information; and\n9.4 that this Agreement shall be binding on each party’s successors and permitted assigns.\n10. GOVERNING LAW. This Agreement and the parties’ rights and obligations under it shall be governed by and interpreted in accordance\nwith the laws of the State of Victoria.\n11. AGREEMENT TERM. This Agreement shall continue in force for a term of ten (10) years from its date.\nSIGNED as an Agreement.\nSIGNED for and on behalf of\n)\nLIHIR MANAGEMENT COMPANY\n)\nLIMITED\n)\nby and duly authorised officer in\n)\nthe presence of:\n)\n/s/ N. Swan, M.D.\nSignature\n/s/\nN. Swan, M.D.\nWitness\nName & Title\n31/5/04\nDate\n14\nSIGNED for and on behalf of\n)\nLIHIR GOLD LIMITED\n)\nby and duly authorised\n)\nofficer in the presence of:\n)\n/s/ N. Swan, MD.\nSignature\n/s/\nN. Swan, MD.\nWitness\nName & Title\n31/5/04\nDate\nSIGNED for and on behalf of\n)\nTECHNOLOGICAL SERVICES PTY LTD\n)\nby and duly authorised\n)\nofficer in the presence of:\n)\n/s/\nSignature\n/s/\nGeneral Manager\nWitness\nName & Title\n26 May 2004\nDate\n15	EX-4.K 4 y98596exv4wk.htm CONFIDENTIALITY AGREEMENT\nExhibit 4(k)\nCONFIDENTIALITY AGREEMENT\nBETWEEN: LIHIR MANAGEMENT COMPANY LIMITED, ARBN 059 005 766, as manager of LIHIR GOLD LIMITED ARBN 069 803 998, and LIHIR GOLD LIMITED in its own right, both of 7th Floor, Pacific Place, Cnr, Champion Parade &\nMusgrave Street, Port Moresby, Papua New Guinea (“Lihir”)\nAND: TECHNOLOGICAL SERVICES PTY LIMITED, A.B.N. 12 002 183557 known as Rio Tinto technical Services of 55 Collins Street, Melbourne, VIC 3001, Australia (“RTTS”)\nLihir and RTTS have entered into and will continue discussions concerning, and have undertaken and will continue to undertake activities in furtherance of, the Express Purpose. In the course of these discussions and activities, Lihir has and will continue to make Confidential Information available to RTTS and further Confidential Information will be generated by both parties. As a condition to these discussions and in consideration for Lihir disclosing the Confidential Information to and paying the relevant projects fees, RTTS is required to enter into this Agreement on the following terms: 1. “CONFIDENTIAL INFORMATION?” all confidential and proprietary information concerning existing and future technology and technical\ninformation, intellectual property, ideas, know how, trade secrets, mining, processing and commercial strategies, financial and contractual\ninformation, employees, consultants, training and other programs, concepts, concepts plans and business of Lihir which is or has been\ndisclosed to RTTS in connection with the Express Purpose, or is generated by both parties or either of them in association with or furtherance\nof this Express Purpose. It includes the existence of any project referred to in the Express Purpose and the engagement of RTTS for it. It does\nnot include information, which RTTS can provide:\n1.1 either is or becomes available to the public other than as a result of disclosure by RTTS; or\n1.2 is lawfully available to RTTS on a non-confidential basis from a third party entitled to make disclosure.\n“EXPRESS PURPOSE” means any project for which RTTS is engaged by Lihir from time to time, including in particular but without\nlimitation the project to develop an order-of- magnitude study defining the viability of identified processing methods for the sub- economic\nresource.\n“INTELLECTUAL PROPERTY RIGHTS” means the rights comprised in any patent, copyright, design or trademark whether at common law\nor by statute, rights to apply for registration under a statute in respect of those or like rights and rights to protect trade secrets, know- how,\ngoodwill or confidential information.\n“REPRESENTATIVES” means any director, officer, employee, contractor, or adviser of RTTS to whom the Confidential Information is or has\nbeen disclosed.\nINTERPRETATION. A reference to:\n5.1 Confidential Information includes but is not limited to any verbal communication, documents, data, records, drawings, graphs, formulae,\nsamples, electronic data and any other means by which the Confidential Information may be conveyed, stored or reproduced; and\n5.2 any thing (including but not limited to any right) includes a part of that thing.\nCONFIDENTIALITY OBLIGATIONS. RTTS agrees that unless specifically and previously authorised by Lihir in writing it shall and it shall\nensure that its Representatives (who shall be limited to only those who must strictly have access to the Confidential Information for the\npurpose of the Express Purpose) shall:\n13\n6.1 not disclose, or allow anyone else to disclose, any Confidential Information to any other person;\n6.2 not make use of any Confidential Information for any purpose other than for the Express Purpose; and\n6.3 not apply for, or directly or indirectly assist any other person to apply for any Intellectual Property Rights or any other proprietary right\nin respect of any invention, process or design that is based on or utilises the Confidential Information;\n6.4 keep the Confidential Information secure and protect it from unauthorized use, reproduction, access and damage or destruction; and\n6.5 not copy or reproduce the Confidential Information other than as strictly necessary in furtherance of the Express Purpose.\n7. RETURN OF CONFIDENTIAL INFORMATION. Unless otherwise agreed in writing, on the termination of this Agreement or upon written\nnotice by Lihir, all Confidential Information whether in hard copy or electronic form will be returned to Lihir within thirty (30) days of the\ndate of such termination or notice.\n8. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS. Nothing in this Agreement nor any disclosure of information by Lihir before or\nafter its execution shall operate to confer any Intellectual Property Rights on RTTS.\n9. OTHER TERMS. RTTS acknowledge and agrees:\n9.1 that any provision in this Agreement found to be invalid or unenforceable shall not affect any other provision in this Agreement;\n9.2 that Lihir’s failure to insist on strict performance of any provision of this Agreement shall not be deemed a waiver of any subsequent\nbreach of such provision;\n9.3 that this Agreement shall not be construed to exclude the operation of any principle of law or equity intended to protect and preserve the\nconfidentiality of the Confidential Information; and\n9.4 that this Agreement shall be binding on each party’s successors and permitted assigns.\n10. GOVERNING LAW. This Agreement and the parties’ rights and obligations under it shall be governed by and interpreted in accordance\nwith the laws of the State of Victoria.\n11. AGREEMENT TERM. This Agreement shall continue in force for a term of ten (10) years from its date.\nSIGNED as an Agreement.\nSIGNED for and on behalf of )\nLIHIR MANAGEMENT COMPANY )\nLIMITED )\nby and duly authorised officer in )\nthe presence of: )\n/s/ N. Swan, M.D.\nSignature\n/s/ N. Swan, M.D.\nWitness Name & Title\n31/5/04\nDate\n14\nSIGNED for and on behalf of\nLIHIR GOLD LIMITED\nby and duly authorised\nofficer in the presence of:\nN N N\n/s/\nWitness\nSIGNED for and on behalf of\nTECHNOLOGICAL SERVICES PTY LTD\nby and duly authorised\nofficer in the presence of:\n/s/\nWitness\nN N N\n/s/ N. Swan, MD.\nSignature\nN. Swan, MD.\nName & Title\n31/5/04\nDate\n/s/\nSignature\nGeneral Manager\nName & Title\n26 May 2004\nDate\n15	EX-4.K 4 y98596exv4wk.htm CONFIDENTIALITY AGREEMENT\nExhibit 4(k)\nCONFIDENTIALITY AGREEMENT\nBETWEEN:\nLIHIR MANAGEMENT COMPANY LIMITED, ARBN 059 005 766, as manager of LIHIR GOLD LIMITED ARBN\n069 803 998, and LIHIR GOLD LIMITED in its own right, both of 7th Floor, Pacific Place, Cnr, Champion Parade &\nMusgrave Street, Port Moresby, Papua New Guinea ("Lihir")\nAND:\nTECHNOLOGICAL SERVICES PTY LIMITED, A.B.N. 12 002 183557 known as Rio Tinto technical Services of 55\nCollins Street, Melbourne, VIC 3001, Australia ("RTTS")\nLihir and RTTS have entered into and will continue discussions concerning, and have undertaken and will continue to undertake activities in\nfurtherance of, the Express Purpose. In the course of these discussions and activities, Lihir has and will continue to make Confidential\nInformation available to RTTS and further Confidential Information will be generated by both parties. As a condition to these discussions and in\nconsideration for Lihir disclosing the Confidentia Information to and paying the relevant projects fees, RTTS is required to enter into this\nAgreement on the following terms:\n1. "CONFIDENTIAL INFORMATION" all confidential and proprietary information concerning existing and future technology and technical\ninformation, intellectual property, ideas, know how, trade secrets, mining, processing and commercial strategies, financial and contractual\ninformation, employees, consultants, training and other programs, concepts, concepts plans and business of Lihir which is or has been\ndisclosed to RTTS in connection with the Express Purpose, or is generated by both parties or either of them in association with or furtherance\nof this Express Purpose. It includes the existence of any project referred to in the Express Purpose and the engagement of RTTS for it. It does\nnot include information, which RTTS can provide:\n1.1 either is or becomes available to the public other than as a result of disclosure by RTTS; or\n1.2 is lawfully available to RTTS on a non-confidential basis from a third party entitled to make disclosure.\n2. "EXPRESS PURPOSE" means any project for which RTTS is engaged by Lihir from time to time, including in particular but without\nlimitation the project to develop an order-of- -of- magnitud study defining the viability of identified processing methods for the sub- economic\nresource.\n3. "INTELLECTUAL PROPERTY RIGHTS" means the rights comprised in any patent, copyright, design or trademark whether at common law\nor by statute, rights to apply for registration under a statute in respect of those or like rights and rights to protect trade secrets, know- how,\ngoodwill or confidential information.\n4. "REPRESENTATIVES" means any director, officer, employee, contractor, or adviser of RTTS to whom the Confidentia Information is or has\nbeen disclosed.\n5. INTERPRETATION. A reference to:\n5.1 Confidential Information includes but is not limited to any verbal communication, documents, data, records, drawings, graphs, formulae,\nsamples, electronic data and any other means by which the Confidential Information may be conveyed, stored or reproduced; and\n5.2 any thing (including but not limited to any right) includes a part of that thing.\n6. CONFIDENTIALITY OBLIGATIONS. RTTS agrees that unless specifically and previously authorised by Lihir in writing it shall and it shall\nensure that its Representatives (who shall be limited to only those who must strictly have access to the Confidential Information for the\npurpose of the Express Purpose) shall:\n13\n6.1 not disclose, or allow anyone else to disclose, any Confidential Information to any other person;\n6.2 not make use of any Confidential Information for any purpose other than for the Express Purpose; and\n6.3\nnot apply for, or directly or indirectly assist any other person to apply for any Intellectual Property Rights or any other proprietary right\nin respect of any invention, process or design that is based on or utilises the Confidential Information;\n6.4 keep the Confidential Information secure and protect it from unauthorized use, reproduction, access and damage or destruction; and\n6.5 not copy or reproduce the Confidential Information other than as strictly necessary in furtherance of the Express Purpose.\n7. RETURN OF CONFIDENTIAL INFORMATION. Unless otherwise agreed in writing, on the termination of this Agreement or upon written\nnotice by Lihir, all Confidential Information whether in hard copy or electronic form will be returned to Lihir within thirty (30) days of the\ndate of such termination or notice.\n8. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS. Nothing in this Agreement nor any disclosure of information by Lihir before or\nafter its execution shall operate to confer any Intellectual Property Rights on RTTS.\n9. OTHER TERMS. RTTS acknowledge and agrees:\n9.1 that any provision in this Agreement found to be invalid or unenforceable shall not affect any other provision in this Agreement;\n9.2 that Lihir's failure to insist on strict performance of any provision of this Agreement shall not be deemed a waiver of any subsequent\nbreach of such provision;\n9.3 that this Agreement shall not be construed to exclude the operation of any principle of law or equity intended to protect and preserve the\nconfidentiality of the Confidential Information; and\n9.4 that this Agreement shall be binding on each party's successors and permitted assigns.\n10. GOVERNING LAW. This Agreement and the parties' rights and obligations under it shall be governed by and interpreted in accordance\nwith the laws of the State of Victoria.\n11. AGREEMENT TERM. This Agreement shall continue in force for a term of ten (10) years from its date.\nSIGNED as an Agreement.\nSIGNED for and on behalf of\n)\nLIHIR MANAGEMENT COMPANY\nLIMITED\nby and duly authorised officer in\n)\nthe presence of:\n)\n/s/ N. Swan, M.D.\nSignature\n/s/\nN. Swan, M.D.\nWitness\nName & Title\n31/5/04\nDate\n14\nSIGNED for and on behalf of\n)\nLIHIR GOLD LIMITED\n)\nby and duly authorised\n)\nofficer in the presence of:\n)\n/S/N. Swan, MD.\nSignature\n/s/\nN. Swan, MD.\nWitness\nName & Title\n31/5/04\nDate\nSIGNED for and on behalf of\n)\nTECHNOLOGICAL SERVICES PTY LTD\nby and duly authorised\n)\nofficer in the presence of:\n)\n/s/\nSignature\n/s/\nGeneral Manager\nWitness\nName & Title\n26 May 2004\nDate\n15	EX-4.K 4 y98596exv4wk.htm CONFIDENTIALITY AGREEMENT\nExhibit 4(k)\nCONFIDENTIALITY AGREEMENT\nBETWEEN:\nLIHIR MANAGEMENT COMPANY LIMITED, ARBN 059 005 766, as manager of LIHIR GOLD LIMITED ARBN\n069 803 998, and LIHIR GOLD LIMITED in its own right, both of 7th Floor, Pacific Place, Cnr, Champion Parade &\nMusgrave Street, Port Moresby, Papua New Guinea (“Lihir”)\nAND:\nTECHNOLOGICAL SERVICES PTY LIMITED, A.B .N. 12 002 183557 known as Rio Tinto technical Services of 55\nCollins Street, Melbourne, VIC 3001, Australia (“RTTS”)\nLihir and RTTS have entered into and will continue discussions concerning, and have undertaken and will continue to undertake activities in\nfurtherance of, the Express Purpose. In the course of these discussions and activities, Lihir has and will continue to make Confidential\nInformation available to RTTS and further Confidential Information will be generated by both parties. As a condition to these discussions and in\nconsideration for Lihir disclosing the Confidential Information to and paying the relevant projects fees, RTTS is required to enter into this\nAgreement on the following terms:\n1. “CONFIDENTIAL INFORMATION” all confidential and proprietary information concerning existing and future technology and technical\ninformation, intellectual property, ideas, know how, trade secrets, mining, processing and commercial strategies, financial and contractual\ninformation, employees, consultants, training and other programs, concepts, concepts plans and business of Lihir which is or has been\ndisclosed to RTTS in connection with the Express Purpose, or is generated by both parties or either of them in association with or furtherance\nof this Express Purpose. It includes the existence of any project referred to in the Express Purpose and the engagement of RTTS for it. It does\nnot include information, which RTTS can provide:\n1.1 either is or becomes available to the public other than as a result of disclosure by RTTS; or\n1.2 is lawfully available to RTTS on a non-confidential basis from a third party entitled to make disclosure.\n2. “EXPRESS PURPOSE” means any project for which RTTS is engaged by Lihir from time to time, including in particular but without\nlimitation the project to develop an order-of- magnitude study defining the viability of identified processing methods for the sub- economic\nresource.\n3. “INTELLECTUAL PROPERTY RIGHTS” means the rights comprised in any patent, copyright, design or trademark whether at common law\nor by statute, rights to apply for registration under a statute in respect of those or like rights and rights to protect trade secrets, know- how,\ngoodwill or confidential information.\n4. “REPRESENTATIVES” means any director, officer, employee, contractor, or adviser of RTTS to whom the Confidential Information is or has\nbeen disclosed.\n5. INTERPRETATION. A reference to:\n5.1 Confidential Information includes but is not limited to any verbal communication, documents, data, records, drawings, graphs, formulae,\nsamples, electronic data and any other means by which the Confidential Information may be conveyed, stored or reproduced; and\n5.2 any thing (including but not limited to any right) includes a part of that thing.\n6. CONFIDENTIALITY OBLIGATIONS. RTTS agrees that unless specifically and previously authorised by Lihir in writing it shall and it shall\nensure that its Representatives (who shall be limited to only those who must strictly have access to the Confidential Information for the\npurpose of the Express Purpose) shall:\n13\n6.1 not disclose, or allow anyone else to disclose, any Confidential Information to any other person;\n6.2 not make use of any Confidential Information for any purpose other than for the Express Purpose; and\n6.3 not apply for, or directly or indirectly assist any other person to apply for any Intellectual Property Rights or any other proprietary right\nin respect of any invention, process or design that is based on or utilises the Confidential Information;\n6.4 keep the Confidential Information secure and protect it from unauthorized use, reproduction, access and damage or destruction; and\n6.5 not copy or reproduce the Confidential Information other than as strictly necessary in furtherance of the Express Purpose.\n7. RETURN OF CONFIDENTIAL INFORMATION. Unless otherwise agreed in writing, on the termination of this Agreement or upon written\nnotice by Lihir, all Confidential Information whether in hard copy or electronic form will be returned to Lihir within thirty (30) days of the\ndate of such termination or notice.\n8. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS. Nothing in this Agreement nor any disclosure of information by Lihir before or\nafter its execution shall operate to confer any Intellectual Property Rights on RTTS.\n9. OTHER TERMS. RTTS acknowledge and agrees:\n9.1 that any provision in this Agreement found to be invalid or unenforceable shall not affect any other provision in this Agreement;\n9.2 that Lihir’s failure to insist on strict performance of any provision of this Agreement shall not be deemed a waiver of any subsequent\nbreach of such provision;\n9.3 that this Agreement shall not be construed to exclude the operation of any principle of law or equity intended to protect and preserve the\nconfidentiality of the Confidential Information; and\n9.4 that this Agreement shall be binding on each party’s successors and permitted assigns.\n10. GOVERNING LAW. This Agreement and the parties’ rights and obligations under it shall be governed by and interpreted in accordance\nwith the laws of the State of Victoria.\n11. AGREEMENT TERM. This Agreement shall continue in force for a term of ten (10) years from its date.\nSIGNED as an Agreement.\nSIGNED for and on behalf of\n)\nLIHIR MANAGEMENT COMPANY\n)\nLIMITED\n)\nby and duly authorised officer in\n)\nthe presence of:\n)\n/s/ N. Swan, M.D.\nSignature\n/s/\nN. Swan, M.D.\nWitness\nName & Title\n31/5/04\nDate\n14\nSIGNED for and on behalf of\n)\nLIHIR GOLD LIMITED\n)\nby and duly authorised\n)\nofficer in the presence of:\n)\n/s/ N. Swan, MD.\nSignature\n/s/\nN. Swan, MD.\nWitness\nName & Title\n31/5/04\nDate\nSIGNED for and on behalf of\n)\nTECHNOLOGICAL SERVICES PTY LTD\n)\nby and duly authorised\n)\nofficer in the presence of:\n)\n/s/\nSignature\n/s/\nGeneral Manager\nWitness\nName & Title\n26 May 2004\nDate\n15
252b9361b33e260436d147681f7b7102.pdf	effective_date jurisdiction party term	EX-10.4 5 dex104.htm NON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nExhibit 10.4\nLOGO\nNon-Competition and Confidentiality Agreement\nThis Agreement is made and entered into on or about March 30, 2009 (exact date to be determined), between SRI Surgical (referred to as “SRI”) and\nWilliam Braun (referred to as “Employee”).\nSRI and Employee enter into this Agreement with the following understandings:\nA. SRI is engaged in the business of supplying hospitals and surgery centers with reusable surgical apparel, linens, stainless steel basins, surgical\ninstruments, disposable packs as well as providing on-site customer processing services and consultation.\nB. SRI maintains confidential and trade secret information which is critical to the operation and competitiveness of its business. This information\nincludes, but is not limited to, information about SRI’s customers and customer lists, files containing accounting data, engineering data,\ninventions, processes, formulas, drawings, blueprints, costs, research, marketing information, production information, sales, sales plans and\nmethods, supply sources, pricing, quotations, employee compensation and other confidential information, data banks and files, and computer\naided design and drafting programs. This trade secret and confidential information is referred to in this Agreement as “Confidential\nInformation.” SRI’s customers include persons, firms, corporation and other entities that lease/purchase the goods and services sold or\nprovided by SRI, have leased/purchased such goods and services in the past, or are potential lessors/purchasers of such goods and services in\nthe future.\nC. SRI will invest substantial time and resources in the development, training and support of the Employee.\nD. SRI will necessarily, in the course of the Employee’s employment, provide the employee with access to SRI’s Confidential Information to\nenable the Employee to perform the duties of his or her employment.\nE. The Employee understands and agrees that SRI has a reasonable expectation that the Employee will not compete against SRI or work for any\nbusiness competing against SRI during Employee’s employment with SRI for a reasonable period of time after the termination of Employee’s\nemployment with SRI, and Employee will not disclose or make use of any of SRI’s confidential information (except as authorized by SRI) at\nany time, because Employee would gain a competitive advantage through both Employee’s employment with SRI and through Employee’s\naccess to SRI’s Confidential Information.\nF. SRI and the Employee agree that substantial and irreparable loss and damage will be suffered by SRI in the event that the Employee breaches\nthis Agreement.\nSRI and Employee agree as follows:\n1. Employment: SRI employs the Employee, and the Employee accepts employment with SRI under the terms and at the compensation\nmutually agreed upon by the parties. These terms may be changed by the parties from time to time. The Employee shall devote Employee’s entire\nworking time and complete efforts to SRI’s business. SRI may terminate the Employee’s employment at will or in accordance with applicable state\nlaw and Employee may resign at will.\nLOGO\nNon-Competition and Confidentiality Agreement (cont’d)\n2. Covenants:\n(a) Non-Competition: Employee shall not during employment with SRI and for eighteen (18) months after Employee’s termination of\nemployment or resignation compete with SRI. To “compete” means (i) to directly or indirectly establish or aid in establishing, or have effective\ncontrol over any business competitive with SRI’s business; or (ii) to become associated with or render services as an employee, independent\ncontractor, consultant or otherwise, to any person, firm, corporation or other entity engaged in any business competitive with SRI’s business. Mere\nownership of less than one percent (1%) of the outstanding common stock of a corporation competitive with SRI’s business whose stock is traded on\nany major United States stock exchange or on the over-the-counter market shall not be considered as a violation of this Agreement. For purpose of\nthis section 2(a), “any business competitive with SRI’s business” shall mean a business or hospital sterile processing center which competes with the\nfacility or office of SRI by which the Employee was employed.\n(b) Non-Solicitation: At all times during Employee’s employment and after Employee’s termination of employment or resignation,\nEmployee shall keep all information about SRI’s customers confidential and secret and shall not disclose or use that information in any manner,\neither directly or indirectly, orally or in writing or otherwise, to any person, firm, corporation, or other entity. Furthermore, during Employee’s\nemployment and for eighteen (18) months after the termination of Employee’s employment or Employee’s resignation, the Employee shall not solicit\nthe trade of any of the persons, firms, corporations or other entities who are SRI’s customers, for or on behalf of Employee (if Employee is\ncompeting with SRI) or any person, firm, corporation or other entity that is in competition for SRI’s business. For purpose of this section 2(b), “any\nbusiness competitive with SRI’s business” shall mean a business or hospital sterile processing center which competes with the facility or office of\nSRI by which the Employee was employed.\n(c) Non-Inducement: During Employee’s employment and for eighteen (18) months after the termination of Employee’s employment or\nEmployee’s resignation, the Employee shall not, directly or indirectly, induce or attempt to induce any present or former employee of SRI to gain or\nseek employment with any person or business in competition with SRI.\n(d) Non-Disclosure: At all times during Employee’s employment and after the termination of Employee’s employment or Employee’s\nresignation, Employee shall protect and guard SRI’s Confidential Information. Employee shall not at any time, directly or indirectly, disclose to any\nperson, firm, corporation or other entity, or use for Employee’s own purposes any Confidential Information, regardless of how it is acquired, except\nas Employee’s use of the Confidential Information may be authorized by SRI.\n(e) Reporting to the Company: Employee agrees to render to SRI such reports of Employee’s business activities for SRI during\nEmployee’s employment as SRI may request. Employee shall promptly communicate and disclose to SRI all information, observations and data\nobtained by Employee in the course of Employee’s employment. Upon termination of employment, Employee shall promptly deliver to SRI, without\nretaining any copies, all memoranda, diaries, notes, records, sketches, plans, specifications, or other documents or things containing Confidential\nInformation developed or obtained by Employee.\n(f) Inventions and Discoveries: Any and all inventions and discoveries, whether or not patentable, which Employee may conceive or\nmake, either alone or in conjunction with others, during Employee’s employment and relating to SRI’s business shall be the exclusive property of\nSRI. Furthermore, Employee shall, upon the request of SRI and without further compensation or consideration, but at the expense of SRI, promptly\nexecute and assign any and all applications, assignments and other instruments which SRI shall deem necessary in order to apply for and obtain\nletters patent of the United States and foreign countries for those inventions and discoveries, and in order to assign and convey to SRI or its nominee\nthe sole and exclusive right, title and interest in and to those inventions, discoveries or any applications or patents upon them.\nLOGO\nNon-Competition and Confidentiality Agreement (cont’d)\n3. Non-Disparagement: Employee agrees not to make any disparaging statements about SRI or its officers, agents or employees during\nEmployee’s employment and after the termination of Employee’s employment or Employee’s resignation.\n4. Minimum Restrictions Necessary; Severability: If a court of competent jurisdiction determines that any of the provisions of this Agreement\nare unenforceable for any reason, each such provision shall be deemed to be modified in a manner to render it enforceable and each provision, as\nmodified, shall then be fully enforceable as though set forth in this Agreement. Any such modification shall not affect the other provisions or clauses\nof this Agreement in any respect. The invalidity or unenforceability of any provision or clause of this Agreement shall not affect the continued\nvalidity or enforceability of any other provision or clause in this Agreement, and this Agreement shall be construed in all respects as if any invalid or\nunenforceable provision or clause was omitted.\n5. Company’s Remedies: SRI and Employee agree that the services to be rendered by Employee are special, unique and of an extraordinary\ncharacter. Employee hereby acknowledges that: (i) the restrictions contained herein are reasonable and necessary in order to protect SRI’s legitimate\nbusiness interests; (ii) any breach or violation thereof would result in irreparable injury to SRI; and (iii) the enforcement of a remedy by way of\ninjunction would not prevent Employee from earning a living. Employee, therefore, acknowledges and agrees that, in the event that\nEmployee violates or breaches this Agreement, SRI is authorized and entitled to obtain, from any court of competent jurisdiction: (i) preliminary and\npermanent injunctive relief; (ii) an equitable accounting of all profits or benefits arising out of the violation or breach; (iii) direct, incidental and\nconsequential damages to SRI arising from the violation or breach; and (iv) SRI’s attorneys’ fees and costs, all of which rights and remedies shall be\ncumulative and in addition to any other rights and remedies to which SRI may be entitled.\n6. Representation and Warranty: Employee represents and warrants to SRI that Employee has not assumed any obligations or entered into any\narrangements or contracts inconsistent or in conflict with those set out in this Agreement.\n7. Modification and Waiver: No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless\ncontained in writing specifically referring to this Agreement. The failure by SRI at any time to enforce any of the provisions of this Agreement, or to\nrequire performance by Employee of any of the provisions of this Agreement, shall in no way be construed to be a waiver of those provisions and\nshall not affect either the validity of any part of this Agreement or the right of SRI to enforce each and every provision of this Agreement.\n8. Binding Effect: This Agreement shall be binding upon the inure to the benefit of SRI and any successor or assignee of SRI, including any\ncorporation or other entity which may acquire all or substantially all of the assets of SRI, or into which SRI may be merged or consolidated. Any\nsuch successor shall be deemed substituted for SRI under the provisions of this Agreement. This Agreement shall be binding upon and inure to the\nbenefit of Employee and Employee’s heirs, legal representatives and assigns, except that the Employee’s obligations to perform future services or\nemployee’s rights to receive payment for those services are hereby expressly declared to be non-assignable and nontransferable.\n9. Construction: Section headings are included in this Agreement solely for the convenience of reference and shall not be construed as a part of\nany section or modifying its contents.\nLOGO\nNon-Competition and Confidentiality Agreement (cont’d)\n10. Governing Law and Jurisdiction: This Agreement shall be governed by and construed under the laws of the State of Florida. SRI and\nEmployee agree that this Agreement may be enforced in any court of competent jurisdiction in the State of Florida, which is SRI’s principal place of\nbusiness, or in the state where Employee is employed or can be found, at the sole election of SRI.\nEMPLOYEE\nSRI Surgical\nWilliam J. Braun\n/s/ Ray Reilly\nPrint Name\nRay Reilly\nVice President, Human Resources & Client Relations\n/s/ William J. Braun\nSignature	EX-10.4 5 dex104.htm NON-COMPETITION AND CONFIDENTIALITY AGREEMENT Exhibit 10.4\n».LOGO Non-Competition and Confidentiality Agreement\nThis Agreement is made and entered into on or about March 30, 2009 (exact date to be determined), between SRI Surgical (referred to as “SRI”) and William Braun (referred to as “Employee”). SRI and Employee enter into this Agreement with the following understandings: A. B. SRI is engaged in the business of supplying hospitals and surgery centers with reusable surgical apparel, linens, stainless steel basins, surgical\ninstruments, disposable packs as well as providing on-site customer processing services and consultation.\nSRI maintains confidential and trade secret information which is critical to the operation and competitiveness of its business. This information\nincludes, but is not limited to, information about SRI’s customers and customer lists, files containing accounting data, engineering data,\ninventions, processes, formulas, drawings, blueprints, costs, research, marketing information, production information, sales, sales plans and\nmethods, supply sources, pricing, quotations, employee compensation and other confidential information, data banks and files, and computer\naided design and drafting programs. This trade secret and confidential information is referred to in this Agreement as “Confidential\nInformation.” SRI’s customers include persons, firms, corporation and other entities that lease/purchase the goods and services sold or\nprovided by SRI, have leased/purchased such goods and services in the past, or are potential lessors/purchasers of such goods and services in\nthe future.\nSRI will invest substantial time and resources in the development, training and support of the Employee.\nSRI will necessarily, in the course of the Employee’s employment, provide the employee with access to SRI’s Confidential Information to\nenable the Employee to perform the duties of his or her employment.\nThe Employee understands and agrees that SRI has a reasonable expectation that the Employee will not compete against SRI or work for any\nbusiness competing against SRI during Employee’s employment with SRI for a reasonable period of time after the termination of Employee’s\nemployment with SRI, and Employee will not disclose or make use of any of SRI’s confidential information (except as authorized by SRI) at\nany time, because Employee would gain a competitive advantage through both Employee’s employment with SRI and through Employee’s\naccess to SRI’s Confidential Information.\nSRI and the Employee agree that substantial and irreparable loss and damage will be suffered by SRI in the event that the Employee breaches\nthis Agreement.\nSRI and Employee agree as follows: 1. Employment: SRI employs the Employee, and the Employee accepts employment with SRI under the terms and at the compensation\nmutually agreed upon by the parties. These terms may be changed by the parties from time to time. The Employee shall devote Employee’s entire working time and complete efforts to SRI’s business. SRI may terminate the Employee’s employment at will or in accordance with applicable state law and Employee may resign at will.\f».LOGO\nNon-Competition and Confidentiality Agreement (cont’d)\n2. Covenants:\n(a) Non-Competition: Employee shall not during employment with SRI and for eighteen (18) months after Employee’s termination of\nemployment or resignation compete with SRI. To “compete” means (i) to directly or indirectly establish or aid in establishing, or have effective\ncontrol over any business competitive with SRI’s business; or (ii) to become associated with or render services as an employee, independent\ncontractor, consultant or otherwise, to any person, firm, corporation or other entity engaged in any business competitive with SRI’s business. Mere\nownership of less than one percent (1%) of the outstanding common stock of a corporation competitive with SRI’s business whose stock is traded on\nany major United States stock exchange or on the over-the-counter market shall not be considered as a violation of this Agreement. For purpose of\nthis section 2(a), “any business competitive with SRI’s business” shall mean a business or hospital sterile processing center which competes with the\nfacility or office of SRI by which the Employee was employed.\n \n(b) Non-Solicitation: At all times during Employee’s employment and after Employee’s termination of employment or resignation,\nEmployee shall keep all information about SRI’s customers confidential and secret and shall not disclose or use that information in any manner,\neither directly or indirectly, orally or in writing or otherwise, to any person, firm, corporation, or other entity. Furthermore, during Employee’s\nemployment and for eighteen (18) months after the termination of Employee’s employment or Employee’s resignation, the Employee shall not solicit\nthe trade of any of the persons, firms, corporations or other entities who are SRI’s customers, for or on behalf of Employee (if Employee is\ncompeting with SRI) or any person, firm, corporation or other entity that is in competition for SRI’s business. For purpose of this section 2(b), “any\nbusiness competitive with SRI’s business” shall mean a business or hospital sterile processing center which competes with the facility or office of\nSRI by which the Employee was employed.\n(c) Non-Inducement: During Employee’s employment and for eighteen (18) months after the termination of Employee’s employment or\nEmployee’s resignation, the Employee shall not, directly or indirectly, induce or attempt to induce any present or former employee of SRI to gain or\nseek employment with any person or business in competition with SRI.\n(d) Non-Disclosure: At all times during Employee’s employment and after the termination of Employee’s employment or Employee’s\nresignation, Employee shall protect and guard SRI’s Confidential Information. Employee shall not at any time, directly or indirectly, disclose to any\nperson, firm, corporation or other entity, or use for Employee’s own purposes any Confidential Information, regardless of how it is acquired, except\nas Employee’s use of the Confidential Information may be authorized by SRI.\n(e) Reporting to the Company: Employee agrees to render to SRI such reports of Employee’s business activities for SRI during\nEmployee’s employment as SRI may request. Employee shall promptly communicate and disclose to SRI all information, observations and data\nobtained by Employee in the course of Employee’s employment. Upon termination of employment, Employee shall promptly deliver to SRI, without\nretaining any copies, all memoranda, diaries, notes, records, sketches, plans, specifications, or other documents or things containing Confidential\nInformation developed or obtained by Employee.\n(f) Inventions and Discoveries: Any and all inventions and discoveries, whether or not patentable, which Employee may conceive or\nmake, either alone or in conjunction with others, during Employee’s employment and relating to SRI’s business shall be the exclusive property of\nSRI. Furthermore, Employee shall, upon the request of SRI and without further compensation or consideration, but at the expense of SRI, promptly\nexecute and assign any and all applications, assignments and other instruments which SRI shall deem necessary in order to apply for and obtain\nletters patent of the United States and foreign countries for those inventions and discoveries, and in order to assign and convey to SRI or its nominee\nthe sole and exclusive right, title and interest in and to those inventions, discoveries or any applications or patents upon them.\n».LOGO\nNon-Competition and Confidentiality Agreement (cont’d)\n3. Non-Disparagement: Employee agrees not to make any disparaging statements about SRI or its officers, agents or employees during\nEmployee’s employment and after the termination of Employee’s employment or Employee’s resignation.\n4. Minimum Restrictions Necessary;_Severability: If a court of competent jurisdiction determines that any of the provisions of this Agreement\nare unenforceable for any reason, each such provision shall be deemed to be modified in a manner to render it enforceable and each provision, as\nmodified, shall then be fully enforceable as though set forth in this Agreement. Any such modification shall not affect the other provisions or clauses\nof this Agreement in any respect. The invalidity or unenforceability of any provision or clause of this Agreement shall not affect the continued\nvalidity or enforceability of any other provision or clause in this Agreement, and this Agreement shall be construed in all respects as if any invalid or\nunenforceable provision or clause was omitted.\n5. Company’s Remedies: SRI and Employee agree that the services to be rendered by Employee are special, unique and of an extraordinary\ncharacter. Employee hereby acknowledges that: (i) the restrictions contained herein are reasonable and necessary in order to protect SRI’s legitimate\nbusiness interests; (ii) any breach or violation thereof would result in irreparable injury to SRI; and (iii) the enforcement of a remedy by way of\ninjunction would not prevent Employee from earning a living. Employee, therefore, acknowledges and agrees that, in the event that\nEmployee violates or breaches this Agreement, SRI is authorized and entitled to obtain, from any court of competent jurisdiction: (i) preliminary and\npermanent injunctive relief; (ii) an equitable accounting of all profits or benefits arising out of the violation or breach; (iii) direct, incidental and\nconsequential damages to SRI arising from the violation or breach; and (iv) SRI’s attorneys’ fees and costs, all of which rights and remedies shall be\ncumulative and in addition to any other rights and remedies to which SRI may be entitled.\n6. Representation and Warranty: Employee represents and warrants to SRI that Employee has not assumed any obligations or entered into any\narrangements or contracts inconsistent or in conflict with those set out in this Agreement.\n7. Modification and Waiver: No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless\ncontained in writing specifically referring to this Agreement. The failure by SRI at any time to enforce any of the provisions of this Agreement, or to\nrequire performance by Employee of any of the provisions of this Agreement, shall in no way be construed to be a waiver of those provisions and\nshall not affect either the validity of any part of this Agreement or the right of SRI to enforce each and every provision of this Agreement.\n8. Binding Effect: This Agreement shall be binding upon the inure to the benefit of SRI and any successor or assignee of SRI, including any\ncorporation or other entity which may acquire all or substantially all of the assets of SRI, or into which SRI may be merged or consolidated. Any\nsuch successor shall be deemed substituted for SRI under the provisions of this Agreement. This Agreement shall be binding upon and inure to the\nbenefit of Employee and Employee’s heirs, legal representatives and assigns, except that the Employee’s obligations to perform future services or\nemployee’s rights to receive payment for those services are hereby expressly declared to be non-assignable and nontransferable.\n9. Construction: Section headings are included in this Agreement solely for the convenience of reference and shall not be construed as a part of\nany section or modifying its contents.\n».LOGO\nNon-Competition and Confidentiality Agreement (cont’d)\n10. Governing Law and Jurisdiction: This Agreement shall be governed by and construed under the laws of the State of Florida. SRI and\nEmployee agree that this Agreement may be enforced in any court of competent jurisdiction in the State of Florida, which is SRI’s principal place of\nbusiness, or in the state where Employee is employed or can be found, at the sole election of SRI.\nEMPLOYEE SRI Surgical\nWilliam J. Braun /s/ Ray Reilly\nPrint Name Ray Reilly\nVice President, Human Resources & Client Relations\n/s/ William J. Braun\nSignature	EX-10.4 5 dex104.htm NON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nExhibit 10.4\nLOGO\nNon-Competition and Confidentiality Agreement\nThis Agreement is made and entered into on or about March 30, 2009 (exact date to be determined), between SRI Surgical (referred to as "SRI") and\nWilliam Braun (referred to as "Employee").\nSRI and Employee enter into this Agreement with the following understandings:\nA.\nSRI is engaged in the business of supplying hospitals and surgery centers with reusable surgical apparel, linens, stainless steel basins, surgical\ninstruments, disposable packs as well as providing on-site customer processing services and consultation.\nB.\nSRI maintains confidential and trade secret information which is critical to the operation and competitiveness of its business. This information\nincludes, but is not limited to, information about SRI's customers and customer lists, files containing accounting data, engineering data,\ninventions, processes, formulas, drawings, blueprints, costs, research, marketing information, production information sales, sales plans and\nmethods, supply sources, pricing, quotations, employee compensation and other confidential information, data banks and files, and computer\naided design and drafting programs. This trade secret and confidential information is referred to in this Agreement as "Confidential\nInformation." SRI's customers include persons, firms, corporation and other entities that lease/purchase the goods and services sold or\nprovided by SRI, have leased/purchased such goods and services in the past, or are potential lessors/purchasers of such goods and services in\nthe future.\nC.\nSRI will invest substantial time and resources in the development, training and support of the Employee.\nD. SRI will necessarily, in the course of the Employee's employment, provide the employee with access to SRI's Confidential Information to\nenable the Employee to perform the duties of his or her employment.\nE.\nThe Employee understands and agrees that SRI has a reasonable expectation that the Employee will not compete against SRI or work for any\nbusiness competing against SRI during Employee's employment with SRI for a reasonable period of time after the termination of Employee's\nemployment with SRI, and Employee will not disclose or make use of any of SRI's confidential information (except as authorized by SRI) at\nany time, because Employee would gain a competitive advantage through both Employee's employment with SRI and through Employee's\naccess to SRI'S Confidential Information.\nF.\nSRI and the Employee agree that substantial and irreparable loss and damage will be suffered by SRI in the event that the Employee breaches\nthis Agreement.\nSRI and Employee agree as follows:\n1. Employment: SRI employs the Employee, and the Employee accepts employment with SRI under the terms and at the compensation\nmutually agreed upon by the parties. These terms may be changed by the parties from time to time. The Employee shall devote Employee's entire\nworking time and complete efforts to SRI's business. SRI may terminate the Employee's employment at will or in accordance with applicable state\nlaw and Employee may resign at will.\nLOGO\nNon-Competition and Confidentiality Agreement (cont'd)\n2. Covenants:\n(a) Non-Competition: Employee shall not during employment with SRI and for eighteen (18) months after Employee's termination of\nemployment or resignation compete with SRI. To "compete" means (i) to directly or indirectly establish or aid in establishing, or have effective\ncontrol over any business competitive with SRI's business; or (ii) to become associated with or render services as an employee, independent\ncontractor, consultant or otherwise, to any person, firm, corporation or other entity engaged in any business competitive with SRI's business. Mere\nownership of less than one percent (1%) of the outstanding common stock of a corporation competitive with SRI's business whose stock is traded on\nany major United States stock exchange or on the over-the-counter market shall not be considered as a violation of this Agreement. For purpose of\nthis section 2(a), "any business competitive with SRI's business" shall mean a business or hospital sterile processing center which competes with\nthe\nfacility or office of SRI by which the Employee was employed.\n(b) Non-Solicitation: At all times during Employee's employment and after Employee's termination of employment or resignation,\nEmployee shall keep all information about SRI's customers confidential and secret and shall not disclose or use that information in any manner,\neither directly or indirectly, orally or in writing or otherwise, to any person, firm, corporation, or other entity. Furthermore, during Employee's\nemployment and for eighteen (18) months after the termination of Employee's employment or Employee's resignation, the Employee shall not solicit\nthe trade of any of the persons, firms, corporations or other entities who are SRI's customers, for or on behalf of Employee (if Employee is\ncompeting with SRI) or any person, firm, corporation or other entity that is in competition for SRI's business. For purpose of this section 2(b), "any\nbusiness competitive with SRI's business" shall mean a business or hospital sterile processing center which competes with the facility or office of\nSRI by which the Employee was employed.\n(c) Non-Inducement: During Employee's employment and for eighteen (18) months after the termination of Employee's employment or\nEmployee's resignation, the Employee shall not, directly or indirectly, induce or attempt to induce any present or former employee of SRI to gain or\nseek employment with any person or business in competition with SRI.\n(d) Non-Disclosure: At all times during Employee's employment and after the termination of Employee's employment or Employee's\nresignation, Employee shall protect and guard SRI's Confidential Information. Employee shall not at any time, directly or indirectly, disclose to any\nperson, firm, corporation or other entity, or use for Employee's own purposes any Confidential Information, regardless of how it is acquired, except\nas Employee's use of the Confidential Information may be authorized by SRI.\n(e) Reporting to the Company: Employee agrees to render to SRI such reports of Employee's business activities for SRI during\nEmployee's employment as SRI may request. Employee shall promptly communicate and disclose to SRI all information, observations and data\nobtained by Employee in the course of Employee's employment. Upon termination of employment, Employee shall promptly deliver to SRI, without\nretaining any copies, all memoranda, diaries, notes, records, sketches, plans, specifications, or other documents or things containing Confidential\nInformation developed or obtained by Employee.\n(f) Inventions and Discoveries: Any and all inventions and discoveries, whether or not patentable, which Employee may conceive or\nmake, either alone or in conjunction with others, during Employee's employment and relating to SRI's business shall be the exclusive property of\nSRI. Furthermore, Employee shall, upon the request of SRI and without further compensation or consideration, but at the expense of SRI, promptly\nexecute and assign any and all applications, assignments and other instruments which SRI shall deem necessary in order to apply for and obtain\nletters patent of the United States and foreign countries for those inventions and discoveries, and in order to assign and convey to SRI or its nominee\nthe sole and exclusive right, title and interest in and to those inventions, discoveries or any applications or patents upon them.\nLOGO\nNon-Competition and Confidentiality Agreement (cont'd)\n3. Non-Disparagement: Employee agrees not to make any disparaging statements about SRI or its officers, agents or employees during\nEmployee's employment and after the termination of Employee's employment or Employee's resignation.\n4.\nMinimum Restrictions Necessary; Severability: If a court of competent jurisdiction determines that any of the provisions of this Agreement\nare unenforceable for any reason, each such provision shall be deemed to be modified in a manner to render it enforceable and each provision, as\nmodified, shall then be fully enforceable as though set forth in this Agreement. Any such modification shall not affect the other provisions or clauses\nof this Agreement in any respect. The invalidity or unenforceability of any provision or clause of this Agreement shall not affect the continued\nvalidity or enforceability of any other provision or clause in this Agreement, and this Agreement shall be construed in all respects as if any invalid or\nunenforceable provision or clause was omitted.\n5. Company's Remedies: SRI and Employee agree that the services to be rendered by Employee are special, unique and of an extraordinary\ncharacter. Employee hereby acknowledges that: (i) the restrictions contained herein are reasonable and necessary in order to protect SRI's legitimate\nbusiness interests; (ii) any breach or violation thereof would result in irreparable injury to SRI; and (iii) the enforcement of a remedy by way of\ninjunction would not prevent Employee from earning a living. Employee, therefore, acknowledges and agrees that, in the event that\nEmployee violates or breaches this Agreement, SRI is authorized and entitled to obtain, from any court of competent jurisdiction: (i) preliminary and\npermanent injunctive relief; (ii) an equitable accounting of all profits or benefits arising out of the violation or breach; (iii) direct, incidental and\nconsequential damages to SRI arising from the violation or breach; and (iv) SRI's attorneys' fees and costs, all of which rights and remedies shall\nbe\ncumulative and in addition to any other rights and remedies to which SRI may be entitled.\n6. Representation and Warranty.: Employee represents and warrants to SRI that Employee has not assumed any obligations or entered into any\narrangements or contracts inconsistent or in conflict with those set out in this Agreement.\n7. Modification and Waiver: No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless\ncontained in writing specifically referring to this Agreement. The failure by SRI at any time to enforce any of the provisions of this Agreement, or to\nrequire performance by Employee of any of the provisions of this Agreement, shall in no way be construed to be a waiver of those provisions and\nshall not affect either the validity of any part of this Agreement or the right of SRI to enforce each and every provision of this Agreement.\n8. Binding Effect: This Agreement shall be binding upon the inure to the benefit of SRI and any successor or assignee of SRI, including any\ncorporation or other entity which may acquire all or substantially all of the assets of SRI, or into which SRI may be merged or consolidated. Any\nsuch successor shall be deemed substituted for SRI under the provisions of this Agreement. This Agreement shall be binding upon and inure to the\nbenefit of Employee and Employee's heirs, legal representatives and assigns, except that the Employee's obligations to perform future services\nor\nemployee's rights to receive payment for those services are hereby expressly declared to be non-assignable and nontransferable.\n9.\nConstruction: Section headings are included in this Agreement solely for the convenience of reference and shall not be construed as a part of\nany section or modifying its contents.\nLOGO\nNon-Competition and Confidentiality Agreement (cont'd)\n10. Governing Law and Jurisdiction: This Agreement shall be governed by and construed under the laws of the State of Florida. SRI and\nEmployee agree that this Agreement may be enforced in any court of competent jurisdiction in the State of Florida, which is SRI's principal place of\nbusiness, or in the state where Employee is employed or can be found, at the sole election of SRI.\nEMPLOYEE\nSRI Surgical\nWilliam J. Braun\n/s/ Ray Reilly\nPrint Name\nRay Reilly\nVice President, Human Resources & Client Relations\n/s/ William J. Braun\nSignature	EX-10.4 5 dex104.htm NON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nExhibit 10.4\nLOGO\nNon-Competition and Confidentiality Agreement\nThis Agreement is made and entered into on or about March 30, 2009 (exact date to be determined), between SRI Surgical (referred to as “SRI”) and\nWilliam Braun (referred to as “Employee”).\nSRI and Employee enter into this Agreement with the following understandings:\nA. SRI is engaged in the business of supplying hospitals and surgery centers with reusable surgical apparel, linens, stainless steel basins, surgical\ninstruments, disposable packs as well as providing on-site customer processing services and consultation.\nB. SRI maintains confidential and trade secret information which is critical to the operation and competitiveness of its business. This information\nincludes, but is not limited to, information about SRI’s customers and customer lists, files containing accounting data, engineering data,\ninventions, processes, formulas, drawings, blueprints, costs, research, marketing information, production information, sales, sales plans and\nmethods, supply sources, pricing, quotations, employee compensation and other confidential information, data banks and files, and computer\naided design and drafting programs. This trade secret and confidential information is referred to in this Agreement as “Confidential\nInformation.” SRI’s customers include persons, firms, corporation and other entities that lease/purchase the goods and services sold or\nprovided by SRI, have leased/purchased such goods and services in the past, or are potential lessors/purchasers of such goods and services in\nthe future.\nC. SRI will invest substantial time and resources in the development, training and support of the Employee.\nD. SRI will necessarily, in the course of the Employee’s employment, provide the employee with access to SRI’s Confidential Information to\nenable the Employee to perform the duties of his or her employment.\nE. The Employee understands and agrees that SRI has a reasonable expectation that the Employee will not compete against SRI or work for any\nbusiness competing against SRI during Employee’s employment with SRI for a reasonable period of time after the termination of Employee’s\nemployment with SRI, and Employee will not disclose or make use of any of SRI’s confidential information (except as authorized by SRI) at\nany time, because Employee would gain a competitive advantage through both Employee’s employment with SRI and through Employee’s\naccess to SRI’s Confidential Information.\nF. SRI and the Employee agree that substantial and irreparable loss and damage will be suffered by SRI in the event that the Employee breaches\nthis Agreement.\nSRI and Employee agree as follows:\n1. Employment: SRI employs the Employee, and the Employee accepts employment with SRI under the terms and at the compensation\nmutually agreed upon by the parties. These terms may be changed by the parties from time to time. The Employee shall devote Employee’s entire\nworking time and complete efforts to SRI’s business. SRI may terminate the Employee’s employment at will or in accordance with applicable state\nlaw and Employee may resign at will.\nLOGO\nNon-Competition and Confidentiality Agreement (cont’d)\n2. Covenants:\n(a) Non-Competition: Employee shall not during employment with SRI and for eighteen (18) months after Employee’s termination of\nemployment or resignation compete with SRI. To “compete” means (i) to directly or indirectly establish or aid in establishing, or have effective\ncontrol over any business competitive with SRI’s business; or (ii) to become associated with or render services as an employee, independent\ncontractor, consultant or otherwise, to any person, firm, corporation or other entity engaged in any business competitive with SRI’s business. Mere\nownership of less than one percent (1%) of the outstanding common stock of a corporation competitive with SRI’s business whose stock is traded on\nany major United States stock exchange or on the over-the-counter market shall not be considered as a violation of this Agreement. For purpose of\nthis section 2(a), “any business competitive with SRI’s business” shall mean a business or hospital sterile processing center which competes with the\nfacility or office of SRI by which the Employee was employed.\n(b) Non-Solicitation: At all times during Employee’s employment and after Employee’s termination of employment or resignation,\nEmployee shall keep all information about SRI’s customers confidential and secret and shall not disclose or use that information in any manner,\neither directly or indirectly, orally or in writing or otherwise, to any person, firm, corporation, or other entity. Furthermore, during Employee’s\nemployment and for eighteen (18) months after the termination of Employee’s employment or Employee’s resignation, the Employee shall not solicit\nthe trade of any of the persons, firms, corporations or other entities who are SRI’s customers, for or on behalf of Employee (if Employee is\ncompeting with SRI) or any person, firm, corporation or other entity that is in competition for SRI’s business. For purpose of this section 2(b), “any\nbusiness competitive with SRI’s business” shall mean a business or hospital sterile processing center which competes with the facility or office of\nSRI by which the Employee was employed.\n(c) Non-Inducement: During Employee’s employment and for eighteen (18) months after the termination of Employee’s employment or\nEmployee’s resignation, the Employee shall not, directly or indirectly, induce or attempt to induce any present or former employee of SRI to gain or\nseek employment with any person or business in competition with SRI.\n(d) Non-Disclosure: At all times during Employee’s employment and after the termination of Employee’s employment or Employee’s\nresignation, Employee shall protect and guard SRI’s Confidential Information. Employee shall not at any time, directly or indirectly, disclose to any\nperson, firm, corporation or other entity, or use for Employee’s own purposes any Confidential Information, regardless of how it is acquired, except\nas Employee’s use of the Confidential Information may be authorized by SRI.\n(e) Reporting to the Company: Employee agrees to render to SRI such reports of Employee’s business activities for SRI during\nEmployee’s employment as SRI may request. Employee shall promptly communicate and disclose to SRI all information, observations and data\nobtained by Employee in the course of Employee’s employment. Upon termination of employment, Employee shall promptly deliver to SRI, without\nretaining any copies, all memoranda, diaries, notes, records, sketches, plans, specifications, or other documents or things containing Confidential\nInformation developed or obtained by Employee.\n(f) Inventions and Discoveries: Any and all inventions and discoveries, whether or not patentable, which Employee may conceive or\nmake, either alone or in conjunction with others, during Employee’s employment and relating to SRI’s business shall be the exclusive property of\nSRI. Furthermore, Employee shall, upon the request of SRI and without further compensation or consideration, but at the expense of SRI, promptly\nexecute and assign any and all applications, assignments and other instruments which SRI shall deem necessary in order to apply for and obtain\nletters patent of the United States and foreign countries for those inventions and discoveries, and in order to assign and convey to SRI or its nominee\nthe sole and exclusive right, title and interest in and to those inventions, discoveries or any applications or patents upon them.\nLOGO\nNon-Competition and Confidentiality Agreement (cont’d)\n3. Non-Disparagement: Employee agrees not to make any disparaging statements about SRI or its officers, agents or employees during\nEmployee’s employment and after the termination of Employee’s employment or Employee’s resignation.\n4. Minimum Restrictions Necessary; Severability: If a court of competent jurisdiction determines that any of the provisions of this Agreement\nare unenforceable for any reason, each such provision shall be deemed to be modified in a manner to render it enforceable and each provision, as\nmodified, shall then be fully enforceable as though set forth in this Agreement. Any such modification shall not affect the other provisions or clauses\nof this Agreement in any respect. The invalidity or unenforceability of any provision or clause of this Agreement shall not affect the continued\nvalidity or enforceability of any other provision or clause in this Agreement, and this Agreement shall be construed in all respects as if any invalid or\nunenforceable provision or clause was omitted.\n5. Company’s Remedies: SRI and Employee agree that the services to be rendered by Employee are special, unique and of an extraordinary\ncharacter. Employee hereby acknowledges that: (i) the restrictions contained herein are reasonable and necessary in order to protect SRI’s legitimate\nbusiness interests; (ii) any breach or violation thereof would result in irreparable injury to SRI; and (iii) the enforcement of a remedy by way of\ninjunction would not prevent Employee from earning a living. Employee, therefore, acknowledges and agrees that, in the event that\nEmployee violates or breaches this Agreement, SRI is authorized and entitled to obtain, from any court of competent jurisdiction: (i) preliminary and\npermanent injunctive relief; (ii) an equitable accounting of all profits or benefits arising out of the violation or breach; (iii) direct, incidental and\nconsequential damages to SRI arising from the violation or breach; and (iv) SRI’s attorneys’ fees and costs, all of which rights and remedies shall be\ncumulative and in addition to any other rights and remedies to which SRI may be entitled.\n6. Representation and Warranty: Employee represents and warrants to SRI that Employee has not assumed any obligations or entered into any\narrangements or contracts inconsistent or in conflict with those set out in this Agreement.\n7. Modification and Waiver: No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless\ncontained in writing specifically referring to this Agreement. The failure by SRI at any time to enforce any of the provisions of this Agreement, or to\nrequire performance by Employee of any of the provisions of this Agreement, shall in no way be construed to be a waiver of those provisions and\nshall not affect either the validity of any part of this Agreement or the right of SRI to enforce each and every provision of this Agreement.\n8. Binding Effect: This Agreement shall be binding upon the inure to the benefit of SRI and any successor or assignee of SRI, including any\ncorporation or other entity which may acquire all or substantially all of the assets of SRI, or into which SRI may be merged or consolidated. Any\nsuch successor shall be deemed substituted for SRI under the provisions of this Agreement. This Agreement shall be binding upon and inure to the\nbenefit of Employee and Employee’s heirs, legal representatives and assigns, except that the Employee’s obligations to perform future services or\nemployee’s rights to receive payment for those services are hereby expressly declared to be non-assignable and nontransferable.\n9. Construction: Section headings are included in this Agreement solely for the convenience of reference and shall not be construed as a part of\nany section or modifying its contents.\nLOGO\nNon-Competition and Confidentiality Agreement (cont’d)\n10. Governing Law and Jurisdiction: This Agreement shall be governed by and construed under the laws of the State of Florida. SRI and\nEmployee agree that this Agreement may be enforced in any court of competent jurisdiction in the State of Florida, which is SRI’s principal place of\nbusiness, or in the state where Employee is employed or can be found, at the sole election of SRI.\nEMPLOYEE\nSRI Surgical\nWilliam J. Braun\n/s/ Ray Reilly\nPrint Name\nRay Reilly\nVice President, Human Resources & Client Relations\n/s/ William J. Braun\nSignature
25572e291f5db140343e873745a39561.pdf	effective_date jurisdiction party term	EX-99.(D)(4) 12 dex99d4.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nLOGO\nLOGO\nCONFIDENTIALITY AGREEMENT\nWachovia Capital Markets, LLC (“Wachovia”) has been retained by American Land Lease, Inc. (together with any affiliates and subsidiaries, the\n“Company”) to serve as the Company’s exclusive financial advisor in connection with a possible transaction involving the Company, its businesses\nor assets (a “Possible Transaction”). The undersigned (“Participant” or “you”) desires to receive certain information relating to the Company so that\nit may consider and evaluate a Possible Transaction. As a condition to receiving such information, Participant agrees to the following conditions for\nthe benefit of Wachovia and the Company:\n1. Confidential Information\nFor purposes of this Confidentiality Agreement (this “Agreement”), the term “Confidential Information” shall mean any and all information\nmade available to Participant or Participant’s Representatives (as defined below) by the Company, Wachovia or the Company’s other\nRepresentatives relating in any way to the Company or a Possible Transaction (including, but not limited to, any information or offering\nmaterials prepared by Wachovia or the Company) and all Work Papers. However, Confidential Information shall not include information\nwhich (i) is or becomes generally available to the public other than as a result of breach of this Agreement by Participant or by Participant’s\nRepresentatives, (ii) was lawfully in Participant’s or Participant’s Representatives’ possession prior to any disclosure by the Company,\nWachovia or the Company’s other Representatives, or (iii) was provided to Participant or Participant’s Representatives by a third party that was\nnot, to the knowledge of Participant or Participant’s Representatives, bound by any obligation of confidentiality to the Company, Wachovia or\nthe Company’s other Representatives.\nAs used herein, the term “Work Papers” means all notes, analyses, compilations, data, studies, interpretations and other information, whether\nin visual, electronic, written or other form, prepared by you or on your behalf or for your benefit that contain, reflect, summarize, analyze,\ndiscuss or contain any Confidential Information.\nAs used herein, the term “Representatives” means, as to any person, such person’s affiliates and its and their directors, officers, employees,\nshareholders, members, managers, partners, trustees, agents, investors, lenders, representatives and advisors (including, without limit,\nappraisers, environmental consultants, engineers, financial advisors, legal counsel and accountants).\n2. Use of Confidential Information\nParticipant agrees to hold as strictly confidential, and shall require its respective Representatives to hold as strictly confidential, all\nConfidential Information. Participant agrees not to use the Confidential Information, and require its respective Representatives not to use the\nConfidential Information, for any purpose other than evaluating, negotiating and consummating a Possible Transaction. Participant shall not\ndisclose any Confidential Information or the fact that the Confidential Information exists or has been made available, the fact that the\nCompany is considering the Potential Transaction or that discussions are taking place among the Company, Wachovia and the Participant or\nothers regarding a Possible Transaction to third parties except (i) to its Representatives who are assisting Participant in the evaluation of a\nPossible Transaction (“Permitted Parties”),\n- 1of6-\nLOGO\nLOGO\nprovided that each of such Permitted Parties are advised of this Agreement and agree to maintain confidentiality as set forth herein and (ii) to\nthe extent Participant is required by statute, rule, regulation or judicial process; provided that if Participant is required by statute, rule,\nregulation or judicial process to disclose Confidential Information it shall first notify the Company (if legally permitted) so that the Company,\nat the Company’s sole expense, may seek a protective order or other appropriate protections. In the absence of such an order, the Participant\nmay comply with such legal requirements. Participant shall be liable for any breach of this agreement by its respective Representatives. The\nrestrictions on disclosure set forth above (other than the restrictions on disclosure of the Confidential Information itself) shall terminate upon\nthe public disclosure of any transaction involving the Company including a merger, sale of all or substantially all of the Company’s assets or a\nchange in control.\n3. Return of Confidential Information\nParticipant agrees to, and to require its Representatives to, return any Confidential Information (other than Work Papers) and destroy all Work\nPapers within five business days of the Company’s request, unless otherwise required by law; provided, however, that Participant may destroy\nthe Confidential Information and Work Papers in lieu of returning them if the Participant certifies such destruction in writing. Notwithstanding\nthe foregoing, it is agreed that any portion of the Confidential Information that may be found in Work Papers and any other Confidential\nInformation not requested to be returned to the Company, in lieu of being destroyed, may be held by you or your Representatives and kept\nsubject to the terms of this Agreement.\n4. Disclaimer\nParticipant acknowledges that (i) no representation or warranty, express or implied, is made by Wachovia, the Company or any of their\nrespective Representatives as to the accuracy or completeness of any of the Confidential Information, (ii) the Confidential Information does\nnot purport to be all-inclusive or to contain all the information a Participant may desire, and (iii) the Company expressly reserves the right at\nits sole discretion to reject any or all proposals for a Possible Transaction and to terminate discussions with any party at any time. The\nParticipant agrees that this Agreement does not obligate the Company, Wachovia or the Company’s other Representative’s to disclose any\ninformation, including any Confidential Information, negotiate or enter into any agreement or relationship with the Participant. The Participant\nfurther agrees that Wachovia and the Company shall be free to conduct any process for any transaction involving the Company or a Possible\nTransaction, if and as they in their sole discretion shall determine.\n5. No Solicitation\nThe Participant and any of its respective Representatives shall not, for a period of one year from the date hereof, without the prior written\nconsent of the Company, directly or indirectly, solicit to employ or actually employ any of the following officers or employees of the Company\n(such individuals, the “Senior Management Officers”): the Chairman of the Board, the President and Chief Operating Officer and the Chief\nFinancial Officer, except for any Senior Management Officers who are solicited and hired as a result of a general, non-targeted solicitation\n(including a search firm or similar entity) for persons made in the ordinary course of business, or any Senior Management Officers that\ncontacts you on their own initiative without any solicitation or encouragement from you (other than the general, non-targeted solicitations\ndescribed above).\n- 2of6-\nLOGO\nLOGO\n6. Material Non-Public Information\nParticipant acknowledges that Wachovia has informed Participant that the Confidential Information that may be disclosed hereunder by the\nCompany, Wachovia or the Company’s other Representatives will likely contain material, non-public information. Each Party acknowledges\nand understands that federal securities law restricts any Person who has material, non-public information from purchasing or selling securities\nof another Person while in possession of material non-public information.\n7. Standstill\nNeither the Participant nor any of its Representatives that has been provided with Confidential Information, for a period of one year from the\ndate of this Agreement, shall in any manner, directly or indirectly, without the prior written consent of the Company’s Board of Directors or in\nresponse to a written request from or on behalf of the Company: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or\nannounce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer\nor propose (whether publicly or otherwise) to effect or participate in (i) any acquisition of any voting securities (or beneficial ownership\nthereof), or rights or options to acquire any voting securities (or beneficial ownership thereof), or any assets or businesses of the Company or\nany of its subsidiaries or affiliates, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its\nsubsidiaries or affiliates or the assets of the Company or its subsidiaries or affiliates constituting a significant portion of the consolidated assets\nof the Company and its subsidiaries or affiliates, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary\ntransaction with respect to the Company or any of its subsidiaries or affiliates, or (iv) any “solicitation” of “proxies” (as these terms are used in\nthe rules and regulations of the Securities and Exchange Commission) or consents to vote any voting securities of the Company or any of its\naffiliates; (b) form, join or in any way participate in a “group” (as defined under the rules and regulations of the Securities and Exchange\nCommission) with respect to the Company or otherwise act in concert with any Person in respect of the Company’s securities, without the\nprior written consent of the Chief Executive Officer (or similar senior officer) of the Company; (c) otherwise act, alone or in concert with\nanother Person, to seek representation on or to control or influence the management, board of directors or policies of the Company; (d) take\nany action which would or would reasonably be expected to force the other party to make a public announcement regarding any of the matters\nset forth in (a) above; or (e) enter into any discussions or arrangements with any Person with respect to any of the foregoing. The provisions of\nthe immediately preceding sentence notwithstanding, you may, prior to the expiration of such one year period and subject to applicable laws\n(including applicable rules and regulations of the Securities and Exchange Commission) participate in any of the actions listed in clauses\n(a) through (e) of the immediately preceding sentence if a third party takes any of such actions. The Company shall provide or make available\nto the Participant any information that the Company provides to third parties that are considering a Possible Transaction.\n8. Brokers\nWachovia has been retained by the Company to serve as its exclusive financial advisor with respect to a Possible Transaction and shall be\ncompensated by the Company in connection with any Possible Transaction. Therefore, Participant agrees that neither the Company nor\nWachovia shall be obligated to pay any fees on their behalf to any brokers, finders, or other parties claiming to represent Participant in\nconnection with a Possible Transaction. Additionally, Participant is strictly prohibited\n- 3of6-\nLOGO\nLOGO\nby this agreement from acting as a broker or an agent using any of the Confidential Information provided. Participant shall indemnify and hold\nCompany and Wachovia harmless from and against any claims, causes of action or liabilities, including without limitation, reasonable\nattorneys’ fees and court costs which may be incurred with respect to any claims for other real estate commissions, broker’s fees or finder’s\nfees in relation to or in connection with the Properties to the extent claimed by, through or under Participant.\n9. Contact with Personnel, Properties or Tenants\nDuring the course of Participant’s evaluation of a Possible Transaction, all inquiries and other communications are to be made directly to\nWachovia or an officer of the Company authorized by Wachovia or the Company. Accordingly, Participant will not, and will require its\nRepresentatives not to, contact or attempt to contact any other Representatives, creditors, customers, vendors, suppliers or business partners of\nthe Company concerning or in connection with a Possible Transaction, without the prior, express consent of the Company or Wachovia.\nParticipant agrees that it will not directly or through a third party contact any municipality, governmental agency or quasi-governing body\nregarding the properties involved in a Possible Transaction (the “Properties”). This restriction is not intended to prohibit general inquiries, such\nas non Property-specific inquiries regarding zoning, parking and redevelopment procedures and guidelines for the applicable market area, or\nreview of publicly-available information. In furtherance of the foregoing, Participant agrees that it will not, and will cause its Representatives\nnot to, contact the tenants or Properties’ staff without Company’s prior written consent. Any and all questions related to the evaluation of the\nProperties must be directed to the Company, Wachovia or the Company’s other Representatives. Participant agrees that it will not go to the\nProperties without the prior written consent of Company.\n10. General Terms\nThis Agreement sets forth the parties’ entire agreement regarding the subject matter hereof, and supersedes all other representations,\nnegotiations, understandings and agreements, written or oral, between the parties concerning the subject matter hereof. If any provision of this\nAgreement is declared void or unenforceable, such provisions shall be severed from this Agreement, which shall otherwise remain in full force\nand effect. In the event any suit or other action is commenced to enforce any provision of this Agreement, the prevailing party shall be entitled\nto reimbursement for reasonable attorneys’ fees and costs if deemed to be appropriate by the adjudicating body. Except as provided in\nParagraphs 2, 5 and 7 hereof, this Agreement shall survive for a period of one (1) year after the date hereof. Participant recognizes that any\nactual or threatened disclosure of Confidential Information in violation of this Agreement will cause the Company irreparable injury and that\nthe Company therefore shall be entitled to injunctive relief, a decree of specific performance or other equitable relief, upon a proper showing\nof such a violation, without the necessity of demonstrating actual monetary damage. The Agreement shall be governed by the laws of the State\nof Delaware. This agreement is binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. Neither the\nfailure nor delay by any party in exercising any right hereunder will operate as a waiver of such right, and no single or partial exercise of a\nright will preclude any other or further exercise of such right. This Agreement may be executed in any number of counterpart signature pages,\nsuch signatures may be delivered by facsimile, portable document format (“.pdf”) or similar electronic means, and signatures so executed and\ndelivered shall be binding and effective on all parties. If any provision of this Agreement is determined to be illegal, invalid or unenforceable,\nthen it shall be reformed so as to provide the maximum protection available to the Company and its\n- 4of6-\nLOGO\nLOGO\nRepresentatives or, if such reformation is not possible, then such provision shall be severed from this Agreement and the remaining provisions\nshall remain in full force and effect. The term “person” means any individual, corporation, partnership, limited liability company, joint venture,\nestate, trust, association, organization, or other entity or governmental body.\n(Signature Pages Follow)\n- 5of6-\nLOGO\nLOGO\nThis Agreement has been executed by the undersigned as of July 16, 2008.\nCOMPANY:\nAMERICAN LAND LEASE, INC.\nBy: /s/ Shannon E. Smith\nName:\nTitle:\nShannon E. Smith\nChief Financial Officer\nPARTICIPANT:\nGREEN COURTE PARTNERS, LLC\nBy: /s/ James R. Goldman\nName:\nTitle:\nJames R. Goldman\nManaging Director\nRETURN EXECUTED AGREEMENT TO THE FOLLOWING:\nWachovia Securities\n- 6of6-	EX-99.(D)(4) 12 dex99d4.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nLOGO ».LOGO\nCONFIDENTIALITY AGREEMENT\nWachovia Capital Markets, LLC (“Wachovia”) has been retained by American Land Lease, Inc. (together with any affiliates and subsidiaries, the\n“Company”) to serve as the Company’s exclusive financial advisor in connection with a possible transaction involving the Company, its businesses\nor assets (a “Possible Transaction”). The undersigned (“Participant” or “you”) desires to receive certain information relating to the Company so that\nit may consider and evaluate a Possible Transaction. As a condition to receiving such information, Participant agrees to the following conditions for\nthe benefit of Wachovia and the Company:\n1. Confidential Information\nFor purposes of this Confidentiality Agreement (this “Agreement”), the term “Confidential Information” shall mean any and all information\nmade available to Participant or Participant’s Representatives (as defined below) by the Company, Wachovia or the Company’s other\nRepresentatives relating in any way to the Company or a Possible Transaction (including, but not limited to, any information or offering\nmaterials prepared by Wachovia or the Company) and all Work Papers. However, Confidential Information shall not include information\nwhich (i) is or becomes generally available to the public other than as a result of breach of this Agreement by Participant or by Participant’s\nRepresentatives, (ii) was lawfully in Participant’s or Participant’s Representatives’ possession prior to any disclosure by the Company,\nWachovia or the Company’s other Representatives, or (iii) was provided to Participant or Participant’s Representatives by a third party that was\nnot, to the knowledge of Participant or Participant’s Representatives, bound by any obligation of confidentiality to the Company, Wachovia or\nthe Company’s other Representatives.\nAs used herein, the term “Work Papers” means all notes, analyses, compilations, data, studies, interpretations and other information, whether\nin visual, electronic, written or other form, prepared by you or on your behalf or for your benefit that contain, reflect, summarize, analyze,\ndiscuss or contain any Confidential Information.\nAs used herein, the term “Representatives” means, as to any person, such person’s affiliates and its and their directors, officers, employees,\nshareholders, members, managers, partners, trustees, agents, investors, lenders, representatives and advisors (including, without limit,\nappraisers, environmental consultants, engineers, financial advisors, legal counsel and accountants).\n2. Use of Confidential Information\nParticipant agrees to hold as strictly confidential, and shall require its respective Representatives to hold as strictly confidential, all\nConfidential Information. Participant agrees not to use the Confidential Information, and require its respective Representatives not to use the\nConfidential Information, for any purpose other than evaluating, negotiating and consummating a Possible Transaction. Participant shall not\ndisclose any Confidential Information or the fact that the Confidential Information exists or has been made available, the fact that the\nCompany is considering the Potential Transaction or that discussions are taking place among the Company, Wachovia and the Participant or\nothers regarding a Possible Transaction to third parties except (i) to its Representatives who are assisting Participant in the evaluation of a\nPossible Transaction (“Permitted Parties”),\n-1of6-\nLOGO ».LOGO\nprovided that each of such Permitted Parties are advised of this Agreement and agree to maintain confidentiality as set forth herein and (ii) to\nthe extent Participant is required by statute, rule, regulation or judicial process; provided that if Participant is required by statute, rule,\nregulation or judicial process to disclose Confidential Information it shall first notify the Company (if legally permitted) so that the Company,\nat the Company’s sole expense, may seek a protective order or other appropriate protections. In the absence of such an order, the Participant\nmay comply with such legal requirements. Participant shall be liable for any breach of this agreement by its respective Representatives. The\nrestrictions on disclosure set forth above (other than the restrictions on disclosure of the Confidential Information itself) shall terminate upon\nthe public disclosure of any transaction involving the Company including a merger, sale of all or substantially all of the Company’s assets or a\nchange in control.\n3. Return of Confidential Information\nParticipant agrees to, and to require its Representatives to, return any Confidential Information (other than Work Papers) and destroy all Work\nPapers within five business days of the Company’s request, unless otherwise required by law; provided, however, that Participant may destroy\nthe Confidential Information and Work Papers in lieu of returning them if the Participant certifies such destruction in writing. Notwithstanding\nthe foregoing, it is agreed that any portion of the Confidential Information that may be found in Work Papers and any other Confidential\nInformation not requested to be returned to the Company, in lieu of being destroyed, may be held by you or your Representatives and kept\nsubject to the terms of this Agreement.\n4, Disclaimer\nParticipant acknowledges that (i) no representation or warranty, express or implied, is made by Wachovia, the Company or any of their\nrespective Representatives as to the accuracy or completeness of any of the Confidential Information, (ii) the Confidential Information does\nnot purport to be all-inclusive or to contain all the information a Participant may desire, and (iii) the Company expressly reserves the right at\nits sole discretion to reject any or all proposals for a Possible Transaction and to terminate discussions with any party at any time. The\nParticipant agrees that this Agreement does not obligate the Company, Wachovia or the Company’s other Representative’s to disclose any\ninformation, including any Confidential Information, negotiate or enter into any agreement or relationship with the Participant. The Participant\nfurther agrees that Wachovia and the Company shall be free to conduct any process for any transaction involving the Company or a Possible\nTransaction, if and as they in their sole discretion shall determine.\n5. No Solicitation\nThe Participant and any of its respective Representatives shall not, for a period of one year from the date hereof, without the prior written\nconsent of the Company, directly or indirectly, solicit to employ or actually employ any of the following officers or employees of the Company\n(such individuals, the “Senior Management Officers”): the Chairman of the Board, the President and Chief Operating Officer and the Chief\nFinancial Officer, except for any Senior Management Officers who are solicited and hired as a result of a general, non-targeted solicitation\n(including a search firm or similar entity) for persons made in the ordinary course of business, or any Senior Management Officers that\ncontacts you on their own initiative without any solicitation or encouragement from you (other than the general, non-targeted solicitations\ndescribed above).\n-20f6-\n6. Material Non-Public Information\nParticipant acknowledges that Wachovia has informed Participant that the Confidential Information that may be disclosed hereunder by the\nCompany, Wachovia or the Company’s other Representatives will likely contain material, non-public information. Each Party acknowledges\nand understands that federal securities law restricts any Person who has material, non-public information from purchasing or selling securities\nof another Person while in possession of material non-public information.\n7. Standstill\nNeither the Participant nor any of its Representatives that has been provided with Confidential Information, for a period of one year from the\ndate of this Agreement, shall in any manner, directly or indirectly, without the prior written consent of the Company’s Board of Directors or in\nresponse to a written request from or on behalf of the Company: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or\nannounce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer\nor propose (whether publicly or otherwise) to effect or participate in (i) any acquisition of any voting securities (or beneficial ownership\nthereof), or rights or options to acquire any voting securities (or beneficial ownership thereof), or any assets or businesses of the Company or\nany of its subsidiaries or affiliates, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its\nsubsidiaries or affiliates or the assets of the Company or its subsidiaries or affiliates constituting a significant portion of the consolidated assets\nof the Company and its subsidiaries or affiliates, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary\ntransaction with respect to the Company or any of its subsidiaries or affiliates, or (iv) any “solicitation” of “proxies” (as these terms are used in\nthe rules and regulations of the Securities and Exchange Commission) or consents to vote any voting securities of the Company or any of its\naffiliates; (b) form, join or in any way participate in a “group” (as defined under the rules and regulations of the Securities and Exchange\nCommission) with respect to the Company or otherwise act in concert with any Person in respect of the Company’s securities, without the\nprior written consent of the Chief Executive Officer (or similar senior officer) of the Company; (c) otherwise act, alone or in concert with\nanother Person, to seek representation on or to control or influence the management, board of directors or policies of the Company; (d) take\nany action which would or would reasonably be expected to force the other party to make a public announcement regarding any of the matters\nset forth in (a) above; or (e) enter into any discussions or arrangements with any Person with respect to any of the foregoing. The provisions of\nthe immediately preceding sentence notwithstanding, you may, prior to the expiration of such one year period and subject to applicable laws\n(including applicable rules and regulations of the Securities and Exchange Commission) participate in any of the actions listed in clauses\n(a) through (e) of the immediately preceding sentence if a third party takes any of such actions. The Company shall provide or make available\nto the Participant any information that the Company provides to third parties that are considering a Possible Transaction.\n8. Brokers\nWachovia has been retained by the Company to serve as its exclusive financial advisor with respect to a Possible Transaction and shall be\ncompensated by the Company in connection with any Possible Transaction. Therefore, Participant agrees that neither the Company nor\nWachovia shall be obligated to pay any fees on their behalf to any brokers, finders, or other parties claiming to represent Participant in\nconnection with a Possible Transaction. Additionally, Participant is strictly prohibited\n-30f6-\n10. by this agreement from acting as a broker or an agent using any of the Confidential Information provided. Participant shall indemnify and hold\nCompany and Wachovia harmless from and against any claims, causes of action or liabilities, including without limitation, reasonable\nattorneys’ fees and court costs which may be incurred with respect to any claims for other real estate commissions, broker’s fees or finder’s\nfees in relation to or in connection with the Properties to the extent claimed by, through or under Participant.\nContact with Personnel, Properties or Tenants\nDuring the course of Participant’s evaluation of a Possible Transaction, all inquiries and other communications are to be made directly to\nWachovia or an officer of the Company authorized by Wachovia or the Company. Accordingly, Participant will not, and will require its\nRepresentatives not to, contact or attempt to contact any other Representatives, creditors, customers, vendors, suppliers or business partners of\nthe Company concerning or in connection with a Possible Transaction, without the prior, express consent of the Company or Wachovia.\nParticipant agrees that it will not directly or through a third party contact any municipality, governmental agency or quasi-governing body\nregarding the properties involved in a Possible Transaction (the “Properties”). This restriction is not intended to prohibit general inquiries, such\nas non Property-specific inquiries regarding zoning, parking and redevelopment procedures and guidelines for the applicable market area, or\nreview of publicly-available information. In furtherance of the foregoing, Participant agrees that it will not, and will cause its Representatives\nnot to, contact the tenants or Properties’ staff without Company’s prior written consent. Any and all questions related to the evaluation of the\nProperties must be directed to the Company, Wachovia or the Company’s other Representatives. Participant agrees that it will not go to the\nProperties without the prior written consent of Company.\nGeneral Terms\nThis Agreement sets forth the parties’ entire agreement regarding the subject matter hereof, and supersedes all other representations,\nnegotiations, understandings and agreements, written or oral, between the parties concerning the subject matter hereof. If any provision of this\nAgreement is declared void or unenforceable, such provisions shall be severed from this Agreement, which shall otherwise remain in full force\nand effect. In the event any suit or other action is commenced to enforce any provision of this Agreement, the prevailing party shall be entitled\nto reimbursement for reasonable attorneys’ fees and costs if deemed to be appropriate by the adjudicating body. Except as provided in\nParagraphs 2, 5 and 7 hereof, this Agreement shall survive for a period of one (1) year after the date hereof. Participant recognizes that any\nactual or threatened disclosure of Confidential Information in violation of this Agreement will cause the Company irreparable injury and that\nthe Company therefore shall be entitled to injunctive relief, a decree of specific performance or other equitable relief, upon a proper showing\nof such a violation, without the necessity of demonstrating actual monetary damage. The Agreement shall be governed by the laws of the State\nof Delaware. This agreement is binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. Neither the\nfailure nor delay by any party in exercising any right hereunder will operate as a waiver of such right, and no single or partial exercise of a\nright will preclude any other or further exercise of such right. This Agreement may be executed in any number of counterpart signature pages,\nsuch signatures may be delivered by facsimile, portable document format (“.pdf”) or similar electronic means, and signatures so executed and\ndelivered shall be binding and effective on all parties. If any provision of this Agreement is determined to be illegal, invalid or unenforceable,\nthen it shall be reformed so as to provide the maximum protection available to the Company and its\n-40f6-\fLOGO ».LOGO\nRepresentatives or, if such reformation is not possible, then such provision shall be severed from this Agreement and the remaining provisions\nshall remain in full force and effect. The term “person” means any individual, corporation, partnership, limited liability company, joint venture,\nestate, trust, association, organization, or other entity or governmental body.\n(Signature Pages Follow)\n-50f6-\nLOGO\nThis Agreement has been executed by the undersigned as of July 16, 2008. RETURN EXECUTED AGREEMENT TO THE FOLLOWING:\nWachovia Securities\n-60f6-\n».LOGO\nCOMPANY:\nAMERICAN LAND LEASE, INC.\nBy:  /s/ Shannon E. Smith\nName: Shannon E. Smith\nTitle: Chief Financial Officer\nPARTICIPANT:\nGREEN COURTE PARTNERS, LLC\nBy:  /s/James R. Goldman\nName: James R. Goldman\nTitle: Managing Director	EX-99.(D)(4) 12 dex99d4.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nLOGO\nLOGO\nCONFIDENTIALITY AGREEMENT\nWachovia Capital Markets, LLC ("Wachovia") has been retained by American Land Lease, Inc. (together with any affiliates and subsidiaries, the\n"Company") to serve as the Company's exclusive financial advisor in connection with a possible transaction involving the Company, its businesses\nor assets (a "Possible Transaction"). The undersigned ("Participant" or "you") desires to receive certain information relating to the Company so that\nit may consider and evaluate a Possible Transaction. As a condition to receiving such information, Participant agrees to the following conditions for\nthe benefit of Wachovia and the Company:\n1.\nConfidential Information\nFor purposes of this Confidentiality Agreement (this "Agreement"), the term "Confidential Information" shall mean any and all information\nmade available to Participant or Participant's Representatives (as defined below) by the Company, Wachovia or the Company's other\nRepresentatives relating in any way to the Company or a Possible Transaction (including, but not limited to, any information or offering\nmaterials prepared by Wachovia or the Company) and all Work Papers. However, Confidential Information shall not include information\nwhich\n(i)\nis\nor\nbecomes\ngenerally\navailable\nto\nthe\npublic\nother\nthan\nas\na\nresult\nof\nbreach\nof\nthis\nAgreement\nby\nParticipant\nor\nby\nParticipant's\nRepresentatives, (ii) was lawfully in Participant's or Participant's Representatives' possession prior to any disclosure by the Company,\nWachovia or the Company's other Representatives, or (iii) was provided to Participant or Participant's Representatives by a third party that was\nnot, to the knowledge of Participant or Participant's Representatives, bound by any obligation of confidentiality to the Company, Wachovia or\nthe Company's other Representatives.\nAs used herein, the term "Work Papers" means all notes, analyses, compilations, data, studies, interpretations and other information, whether\nin visual, electronic, written or other form, prepared by you or on your behalf or for your benefit that contain, reflect, summarize, analyze,\ndiscuss or contain any Confidential Information.\nAs used herein, the term "Representatives" means, as to any person, such person's affiliates and its and their directors, officers, employees,\nshareholders, members, managers, partners, trustees, agents, investors, lenders, representatives and advisors (including, without limit,\nappraisers, environmental consultants, engineers, financial advisors, legal counsel and accountants).\n2.\nUse of Confidential Information\nParticipant agrees to hold as strictly confidential, and shall require its respective Representatives to hold as strictly confidential, all\nConfidential Information. Participant agrees not to use the Confidential Information, and require its respective Representatives not to use the\nConfidential Information, for any purpose other than evaluating, negotiating and consummating a Possible Transaction. Participant shall not\ndisclose any Confidential Information or the fact that the Confidential Information exists or has been made available, the fact that the\nCompany is considering the Potential Transaction or that discussions are taking place among the Company, Wachovia and the Participant or\nothers regarding a Possible Transaction to third parties except (i) to its Representatives who are assisting Participant in the evaluation of a\nPossible Transaction ("Permitted Parties"),\n1 of 6\nLOGO\nLOGO\nprovided that each of such Permitted Parties are advised of this Agreement and agree to maintain confidentiality as set forth herein and (ii) to\nthe extent Participant is required by statute, rule, regulation or judicial process; provided that if Participant is required by statute, rule,\nregulation or judicial process to disclose Confidential Information it shall first notify the Company (if legally permitted) so that the Company,\nat the Company's sole expense, may seek a protective order or other appropriate protections. In the absence of such an order, the Participant\nmay comply with such legal requirements Participant shall be liable for any breach of this agreement by its respective Representatives. The\nrestrictions on disclosure set forth above (other than the restrictions on disclosure of the Confidential Information itself) shall terminate upon\nthe public disclosure of any transaction involving the Company including a merger, sale of all or substantially all of the Company's assets or\na\nchange in control.\n3.\nReturn of Confidential Information\nParticipant agrees to, and to require its Representatives to, return any Confidentia Information (other than Work Papers) and destroy all Work\nPapers within five business days of the Company's request, unless otherwise required by law; provided, however, that Participant may destroy\nthe Confidential Information and Work Papers in lieu of returning them if the Participant certifies such destruction in writing. Notwithstanding\nthe foregoing, it is agreed that any portion of the Confidential Information that may be found in Work Papers and any other Confidential\nInformation not requested to be returned to the Company, in lieu of being destroyed, may be held by you or your Representatives and kept\nsubject to the terms of this Agreement\n4. Disclaimer\nParticipant acknowledges that (i) no representation or warranty, express or implied, is made by Wachovia, the Company or any of their\nrespective Representatives as to the accuracy or completeness of any of the Confidential Information, (ii) the Confidential Information does\nnot purport to be all-inclusive or to contain all the information a Participant may desire, and (iii) the Company expressly reserves the right at\nits sole discretion to reject any or all proposals for a Possible Transaction and to terminate discussions with any party at any time. The\nParticipant agrees that this Agreement does not obligate the Company, Wachovia or the Company's other Representative's to disclose any\ninformation, including any Confidential Information, negotiate or enter into any agreement or relationship with the Participant. The Participant\nfurther agrees that Wachovia and the Company shall be free to conduct any process for any transaction involving the Company or a Possible\nTransaction, if and as they in their sole discretion shall determine.\n5.\nNo Solicitation\nThe Participant and any of its respective Representatives shall not, for a period of one year from the date hereof, without the prior written\nconsent of the Company, directly or indirectly, solicit to employ or actually employ any of the following officers or employees of the Company\n(such individuals, the "Senior Management Officers"): the Chairman of the Board, the President and Chief Operating Officer and the Chief\nFinancial Officer, except for any Senior Management Officers who are solicited and hired as a result of a general, non-targeted solicitation\n(including a search firm or similar entity) for persons made in the ordinary course of business, or any Senior Management Officers that\ncontacts you on their own initiative without any solicitation or encouragement from you (other than the general, non-targeted solicitations\ndescribed above).\n2 of 6\nLOGO\nLOGO\n6.\nMaterial Non-Public Information\nParticipant acknowledges that Wachovia has informed Participant that the Confidential Information that may be disclosed hereunder by the\nCompany, Wachovia or the Company's other Representatives will likely contain material, non-public information. Each Party acknowledges\nand understands that federal securities law restricts any Person who has material, non-public information from purchasing or selling securities\nof another Person while in possession of material non-public information.\n7. Standstill\nNeither the Participant nor any of its Representatives that has been provided with Confidential Information, for a period of one year from the\ndate of this Agreement, shall in any manner, directly or indirectly, without the prior written consent of the Company's Board of Directors or in\nresponse to a written request from or on behalf of the Company: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or\nannounce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer\nor propose (whether publicly or otherwise) to effect or participate in (i) any acquisition of any voting securities (or beneficial ownership\nthereof), or rights or options to acquire any voting securities (or beneficial ownership thereof), or any assets or businesses of the Company or\nany of its subsidiaries or affiliates, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its\nsubsidiaries or affiliates or the assets of the Company or its subsidiaries or affiliates constituting a significant portion of the consolidated assets\nof\nthe Company and its subsidiaries or affiliates, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary\ntransaction with respect to the Company or any of its subsidiaries or affiliates, or (iv) any "solicitation" of "proxies" (as these terms are used\nin\nthe rules and regulations of the Securities and Exchange Commission) or consents to vote any voting securities of the Company or any of its\naffiliates; (b) form, join or in any way participate in a "group" (as defined under the rules and regulations of the Securities and Exchange\nCommission) with respect to the Company or otherwise act in concert with any Person in respect of the Company's securities, without the\nprior written consent of the Chief Executive Officer (or similar senior officer) of the Company; (c) otherwise act, alone or in concert with\nanother Person, to seek representation on or to control or influence the management, board of directors or policies of the Company; (d) take\nany action which would or would reasonably be expected to force the other party to make a public announcement regarding any of the matters\nset forth in (a) above; or (e) enter into any discussions or arrangements with any Person with respect to any of the foregoing. The provisions of\nthe immediately preceding sentence notwithstanding, you may, prior to the expiration of such one year period and subject to applicable laws\n(including applicable rules and regulations of the Securities and Exchange Commission) participate in any of the actions listed in clauses\n(a) through (e) of the immediately preceding sentence if a third party takes any of such actions. The Company shall provide or make available\nto the Participant any information that the Company provides to third parties that are considering a Possible Transaction.\n8. Brokers\nWachovia has been retained by the Company to serve as its exclusive financial advisor with respect to a Possible Transaction and shall be\ncompensated by the Company in connection with any Possible Transaction. Therefore, Participant agrees that neither the Company nor\nWachovia shall be obligated to pay any fees on their behalf to any brokers, finders, or other parties claiming to represent Participant in\nconnection with a Possible Transaction. Additionally, Participant is strictly prohibited\n3 of 6\nLOGO\nLOGO\nby this agreement from acting as a broker or an agent using any of the Confidentia Information provided. Participant shall indemnify and hold\nCompany and Wachovia harmless from and against any claims, causes of action or liabilities, including without limitation, reasonable\nattorneys' fees and court costs which may be incurred with respect to any claims for other real estate commissions, broker's fees or finder's\nfees in relation to or in connection with the Properties to the extent claimed by, through or under Participant.\n9.\nContact with Personnel, Properties or Tenants\nDuring the course of Participant's evaluation of a Possible Transaction, all inquiries and other communications are to be made directly to\nWachovia or an officer of the Company authorized by Wachovia or the Company. Accordingly, Participant will not, and will require its\nRepresentatives not to, contact or attempt to contact any other Representatives, creditors, customers, vendors, suppliers or business partners of\nthe Company concerning or in connection with a Possible Transaction, without the prior, express consent of the Company or Wachovia.\nParticipant agrees that it will not directly or through a third party contact any municipality, governmental agency or quasi-governing body\nregarding the properties involved in a Possible Transaction (the "Properties"). This restriction is not intended to prohibit general inquiries, such\nas non Property-specific inquiries regarding zoning, parking and redevelopment procedures and guidelines for the applicable market area, or\nreview of publicly-available information. In furtherance of the foregoing, Participant agrees that it will not, and will cause its Representatives\nnot to, contact the tenants or Properties' staff without Company's prior written consent. Any and all questions related to the evaluation of the\nProperties must be directed to the Company, Wachovia or the Company's other Representatives. Participant agrees that it will not go to the\nProperties without the prior written consent of Company.\n10. General Terms\nThis Agreement sets forth the parties' entire agreement regarding the subject matter hereof, and supersedes all other representations,\nnegotiations, understandings and agreements, written or oral, between the parties concerning the subject matter hereof. If any provision of this\nAgreement is declared void or unenforceable, such provisions shall be severed from this Agreement, which shall otherwise remain in full force\nand effect. In the event any suit or other action is commenced to enforce any provision of this Agreement, the prevailing party shall be entitled\nto reimbursement for reasonable attorneys' fees and costs if deemed to be appropriate by the adjudicating body. Except as provided in\nParagraphs 2, 5 and 7 hereof, this Agreement shall survive for a period of one (1) year after the date hereof. Participant recognizes that any\nactual or threatened disclosure of Confidential Information in violation of this Agreement will cause the Company irreparable injury and that\nthe\nCompany therefore shall be entitled to injunctive relief, a decree of specific performance or other equitable relief, upon a proper showing\nof such a violation, without the necessity of demonstrating actual monetary damage. The Agreement shall be governed by the laws of the State\nof Delaware. This agreement is binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. Neither the\nfailure nor delay by any party in exercising any right hereunder will operate as a waiver of such right, and no single or partial exercise of a\nright will preclude any other or further exercise of such right. This Agreement may be executed in any number of counterpart signature pages,\nsuch signatures may be delivered by facsimile, portable document format (".pdf") or similar electronic means, and signatures so executed and\ndelivered shall be binding and effective on all parties. If any provision of this Agreement is determined to be illegal, invalid or unenforceable,\nthen it shall be reformed so as to provide the maximum protection available to the Company and its\n4 of 6\nLOGO\nLOGO\nRepresentatives or, if such reformation is not possible, then such provision shall be severed from this Agreement and the remaining provisions\nshall remain in full force and effect. The term "person" means any individual, corporation, partnership, limited liability company, joint venture,\nestate, trust, association, organization, or other entity or governmental body.\n(Signature Pages Follow)\n- 5 of 6 -\nLOGO\nLOGO\nThis Agreement has been executed by the undersigned as of July 16, 2008.\nCOMPANY:\nAMERICAN LAND LEASE, INC.\nBy: /s/ Shannon E. Smith\nName: Shannon E. Smith\nTitle: Chief Financial Officer\nPARTICIPANT:\nGREEN COURTE PARTNERS, LLC\nBy: /s/ James R. Goldman\nName: James R. Goldman\nTitle: Managing Director\nRETURN EXECUTED AGREEMENT TO THE FOLLOWING:\nWachovia Securities\n- 6 of 6 -	EX-99.(D)(4) 12 dex99d4.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nLOGO\nLOGO\nCONFIDENTIALITY AGREEMENT\nWachovia Capital Markets, LLC (“Wachovia”) has been retained by American Land Lease, Inc. (together with any affiliates and subsidiaries, the\n“Company”) to serve as the Company’s exclusive financial advisor in connection with a possible transaction involving the Company, its businesses\nor assets (a “Possible Transaction”). The undersigned (“Participant” or “you”) desires to receive certain information relating to the Company so that\nit may consider and evaluate a Possible Transaction. As a condition to receiving such information, Participant agrees to the following conditions for\nthe benefit of Wachovia and the Company:\n1. Confidential Information\nFor purposes of this Confidentiality Agreement (this “Agreement”), the term “Confidential Information” shall mean any and all information\nmade available to Participant or Participant’s Representatives (as defined below) by the Company, Wachovia or the Company’s other\nRepresentatives relating in any way to the Company or a Possible Transaction (including, but not limited to, any information or offering\nmaterials prepared by Wachovia or the Company) and all Work Papers. However, Confidential Information shall not include information\nwhich (i) is or becomes generally available to the public other than as a result of breach of this Agreement by Participant or by Participant’s\nRepresentatives, (ii) was lawfully in Participant’s or Participant’s Representatives’ possession prior to any disclosure by the Company,\nWachovia or the Company’s other Representatives, or (iii) was provided to Participant or Participant’s Representatives by a third party that was\nnot, to the knowledge of Participant or Participant’s Representatives, bound by any obligation of confidentiality to the Company, Wachovia or\nthe Company’s other Representatives.\nAs used herein, the term “Work Papers” means all notes, analyses, compilations, data, studies, interpretations and other information, whether\nin visual, electronic, written or other form, prepared by you or on your behalf or for your benefit that contain, reflect, summarize, analyze,\ndiscuss or contain any Confidential Information.\nAs used herein, the term “Representatives” means, as to any person, such person’s affiliates and its and their directors, officers, employees,\nshareholders, members, managers, partners, trustees, agents, investors, lenders, representatives and advisors (including, without limit,\nappraisers, environmental consultants, engineers, financial advisors, legal counsel and accountants).\n2. Use of Confidential Information\nParticipant agrees to hold as strictly confidential, and shall require its respective Representatives to hold as strictly confidential, all\nConfidential Information. Participant agrees not to use the Confidential Information, and require its respective Representatives not to use the\nConfidential Information, for any purpose other than evaluating, negotiating and consummating a Possible Transaction. Participant shall not\ndisclose any Confidential Information or the fact that the Confidential Information exists or has been made available, the fact that the\nCompany is considering the Potential Transaction or that discussions are taking place among the Company, Wachovia and the Participant or\nothers regarding a Possible Transaction to third parties except (i) to its Representatives who are assisting Participant in the evaluation of a\nPossible Transaction (“Permitted Parties”),\n- 1of6-\nLOGO\nLOGO\nprovided that each of such Permitted Parties are advised of this Agreement and agree to maintain confidentiality as set forth herein and (ii) to\nthe extent Participant is required by statute, rule, regulation or judicial process; provided that if Participant is required by statute, rule,\nregulation or judicial process to disclose Confidential Information it shall first notify the Company (if legally permitted) so that the Company,\nat the Company’s sole expense, may seek a protective order or other appropriate protections. In the absence of such an order, the Participant\nmay comply with such legal requirements. Participant shall be liable for any breach of this agreement by its respective Representatives. The\nrestrictions on disclosure set forth above (other than the restrictions on disclosure of the Confidential Information itself) shall terminate upon\nthe public disclosure of any transaction involving the Company including a merger, sale of all or substantially all of the Company’s assets or a\nchange in control.\n3. Return of Confidential Information\nParticipant agrees to, and to require its Representatives to, return any Confidential Information (other than Work Papers) and destroy all Work\nPapers within five business days of the Company’s request, unless otherwise required by law; provided, however, that Participant may destroy\nthe Confidential Information and Work Papers in lieu of returning them if the Participant certifies such destruction in writing. Notwithstanding\nthe foregoing, it is agreed that any portion of the Confidential Information that may be found in Work Papers and any other Confidential\nInformation not requested to be returned to the Company, in lieu of being destroyed, may be held by you or your Representatives and kept\nsubject to the terms of this Agreement.\n4. Disclaimer\nParticipant acknowledges that (i) no representation or warranty, express or implied, is made by Wachovia, the Company or any of their\nrespective Representatives as to the accuracy or completeness of any of the Confidential Information, (ii) the Confidential Information does\nnot purport to be all-inclusive or to contain all the information a Participant may desire, and (iii) the Company expressly reserves the right at\nits sole discretion to reject any or all proposals for a Possible Transaction and to terminate discussions with any party at any time. The\nParticipant agrees that this Agreement does not obligate the Company, Wachovia or the Company’s other Representative’s to disclose any\ninformation, including any Confidential Information, negotiate or enter into any agreement or relationship with the Participant. The Participant\nfurther agrees that Wachovia and the Company shall be free to conduct any process for any transaction involving the Company or a Possible\nTransaction, if and as they in their sole discretion shall determine.\n5. No Solicitation\nThe Participant and any of its respective Representatives shall not, for a period of one year from the date hereof, without the prior written\nconsent of the Company, directly or indirectly, solicit to employ or actually employ any of the following officers or employees of the Company\n(such individuals, the “Senior Management Officers”): the Chairman of the Board, the President and Chief Operating Officer and the Chief\nFinancial Officer, except for any Senior Management Officers who are solicited and hired as a result of a general, non-targeted solicitation\n(including a search firm or similar entity) for persons made in the ordinary course of business, or any Senior Management Officers that\ncontacts you on their own initiative without any solicitation or encouragement from you (other than the general, non-targeted solicitations\ndescribed above).\n- 2of6-\nLOGO\nLOGO\n6. Material Non-Public Information\nParticipant acknowledges that Wachovia has informed Participant that the Confidential Information that may be disclosed hereunder by the\nCompany, Wachovia or the Company’s other Representatives will likely contain material, non-public information. Each Party acknowledges\nand understands that federal securities law restricts any Person who has material, non-public information from purchasing or selling securities\nof another Person while in possession of material non-public information.\n7. Standstill\nNeither the Participant nor any of its Representatives that has been provided with Confidential Information, for a period of one year from the\ndate of this Agreement, shall in any manner, directly or indirectly, without the prior written consent of the Company’s Board of Directors or in\nresponse to a written request from or on behalf of the Company: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or\nannounce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer\nor propose (whether publicly or otherwise) to effect or participate in (i) any acquisition of any voting securities (or beneficial ownership\nthereof), or rights or options to acquire any voting securities (or beneficial ownership thereof), or any assets or businesses of the Company or\nany of its subsidiaries or affiliates, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its\nsubsidiaries or affiliates or the assets of the Company or its subsidiaries or affiliates constituting a significant portion of the consolidated assets\nof the Company and its subsidiaries or affiliates, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary\ntransaction with respect to the Company or any of its subsidiaries or affiliates, or (iv) any “solicitation” of “proxies” (as these terms are used in\nthe rules and regulations of the Securities and Exchange Commission) or consents to vote any voting securities of the Company or any of its\naffiliates; (b) form, join or in any way participate in a “group” (as defined under the rules and regulations of the Securities and Exchange\nCommission) with respect to the Company or otherwise act in concert with any Person in respect of the Company’s securities, without the\nprior written consent of the Chief Executive Officer (or similar senior officer) of the Company; (c) otherwise act, alone or in concert with\nanother Person, to seek representation on or to control or influence the management, board of directors or policies of the Company; (d) take\nany action which would or would reasonably be expected to force the other party to make a public announcement regarding any of the matters\nset forth in (a) above; or (e) enter into any discussions or arrangements with any Person with respect to any of the foregoing. The provisions of\nthe immediately preceding sentence notwithstanding, you may, prior to the expiration of such one year period and subject to applicable laws\n(including applicable rules and regulations of the Securities and Exchange Commission) participate in any of the actions listed in clauses\n(a) through (e) of the immediately preceding sentence if a third party takes any of such actions. The Company shall provide or make available\nto the Participant any information that the Company provides to third parties that are considering a Possible Transaction.\n8. Brokers\nWachovia has been retained by the Company to serve as its exclusive financial advisor with respect to a Possible Transaction and shall be\ncompensated by the Company in connection with any Possible Transaction. Therefore, Participant agrees that neither the Company nor\nWachovia shall be obligated to pay any fees on their behalf to any brokers, finders, or other parties claiming to represent Participant in\nconnection with a Possible Transaction. Additionally, Participant is strictly prohibited\n- 3of6-\nLOGO\nLOGO\nby this agreement from acting as a broker or an agent using any of the Confidential Information provided. Participant shall indemnify and hold\nCompany and Wachovia harmless from and against any claims, causes of action or liabilities, including without limitation, reasonable\nattorneys’ fees and court costs which may be incurred with respect to any claims for other real estate commissions, broker’s fees or finder’s\nfees in relation to or in connection with the Properties to the extent claimed by, through or under Participant.\n9. Contact with Personnel, Properties or Tenants\nDuring the course of Participant’s evaluation of a Possible Transaction, all inquiries and other communications are to be made directly to\nWachovia or an officer of the Company authorized by Wachovia or the Company. Accordingly, Participant will not, and will require its\nRepresentatives not to, contact or attempt to contact any other Representatives, creditors, customers, vendors, suppliers or business partners of\nthe Company concerning or in connection with a Possible Transaction, without the prior, express consent of the Company or Wachovia.\nParticipant agrees that it will not directly or through a third party contact any municipality, governmental agency or quasi-governing body\nregarding the properties involved in a Possible Transaction (the “Properties”). This restriction is not intended to prohibit general inquiries, such\nas non Property-specific inquiries regarding zoning, parking and redevelopment procedures and guidelines for the applicable market area, or\nreview of publicly-available information. In furtherance of the foregoing, Participant agrees that it will not, and will cause its Representatives\nnot to, contact the tenants or Properties’ staff without Company’s prior written consent. Any and all questions related to the evaluation of the\nProperties must be directed to the Company, Wachovia or the Company’s other Representatives. Participant agrees that it will not go to the\nProperties without the prior written consent of Company.\n10. General Terms\nThis Agreement sets forth the parties’ entire agreement regarding the subject matter hereof, and supersedes all other representations,\nnegotiations, understandings and agreements, written or oral, between the parties concerning the subject matter hereof. If any provision of this\nAgreement is declared void or unenforceable, such provisions shall be severed from this Agreement, which shall otherwise remain in full force\nand effect. In the event any suit or other action is commenced to enforce any provision of this Agreement, the prevailing party shall be entitled\nto reimbursement for reasonable attorneys’ fees and costs if deemed to be appropriate by the adjudicating body. Except as provided in\nParagraphs 2, 5 and 7 hereof, this Agreement shall survive for a period of one (1) year after the date hereof. Participant recognizes that any\nactual or threatened disclosure of Confidential Information in violation of this Agreement will cause the Company irreparable injury and that\nthe Company therefore shall be entitled to injunctive relief, a decree of specific performance or other equitable relief, upon a proper showing\nof such a violation, without the necessity of demonstrating actual monetary damage. The Agreement shall be governed by the laws of the State\nof Delaware. This agreement is binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. Neither the\nfailure nor delay by any party in exercising any right hereunder will operate as a waiver of such right, and no single or partial exercise of a\nright will preclude any other or further exercise of such right. This Agreement may be executed in any number of counterpart signature pages,\nsuch signatures may be delivered by facsimile, portable document format (“.pdf”) or similar electronic means, and signatures so executed and\ndelivered shall be binding and effective on all parties. If any provision of this Agreement is determined to be illegal, invalid or unenforceable,\nthen it shall be reformed so as to provide the maximum protection available to the Company and its\n- 4of6-\nLOGO\nLOGO\nRepresentatives or, if such reformation is not possible, then such provision shall be severed from this Agreement and the remaining provisions\nshall remain in full force and effect. The term “person” means any individual, corporation, partnership, limited liability company, joint venture,\nestate, trust, association, organization, or other entity or governmental body.\n(Signature Pages Follow)\n- 5of6-\nLOGO\nLOGO\nThis Agreement has been executed by the undersigned as of July 16, 2008.\nCOMPANY:\nAMERICAN LAND LEASE, INC.\nBy: /s/ Shannon E. Smith\nName:\nTitle:\nShannon E. Smith\nChief Financial Officer\nPARTICIPANT:\nGREEN COURTE PARTNERS, LLC\nBy: /s/ James R. Goldman\nName:\nTitle:\nJames R. Goldman\nManaging Director\nRETURN EXECUTED AGREEMENT TO THE FOLLOWING:\nWachovia Securities\n- 6of6-
266929af5f5b1ddb4018f2633cb96e24.pdf	effective_date jurisdiction party term	EX-10.13 3 y31303a1exv10w13.htm EX-10.13: NON-CIRCUMVENTION/NON-DISCLOSURE AGREEMENT\nExhibit 10.13\nNon-Circumvention/Non-Disclosure Agreement\nThis Non-Circumvention/Non-Disclosure Agreement is made as of this 1st day of January 2004, by and between Flow Capital Advisors, Inc.,\nhaving is principal place of business at 3727 Pine Lake Drive, Weston, FL 33332 (hereinafter “Finder”), and JAG Media Holdings, Inc., having\nits principal place of business at 6865 SW 18th Street, Suite B-13 Boca Raton, Florida 33433 (“hereinafter “Jag”).\n1. Pursuant to discussions between Flow and Jag, Flow has disclosed to Jag that certain parties, some of whom who have been identified to\nJag and others who have yet to be identified by Flow to Jag (the “Introduced Parties”), may be interested in entering into certain transactions with\nJag.\n2. Jag agrees that once Flow has disclosed the Identity of any Introduced Party to Jag, Jag, its officers, directors, shareholders, employees and\nagents shall not have any contacts with the Introduced Party other than through Flow, unless Flow grants permission in writing for such contacts.\nSpecifically, Jag agrees not to circumvent, avoid or bypass Flow, either directly or indirectly, in order to avoid payment of fees or commissions;\nor otherwise benefit, either financially or otherwise, from any information supplied to it in the context of any transaction with an Introduced\nParty.\n3. This Agreement shall be governed by and construed and enforced in accordance local laws of the State of Florida applicable to agreements\nmade and to be performed within the State, without regard to conflict of laws principles thereof.\n4. This Agreement shall inure to the benefit of, and is binding upon, the parties hereto and their respective principals, shareholders, heirs,\nofficers, representatives, successors and assigns.\n5. No waiver of any provisions hereof shall be valid unless it is in writing signed by the person against whom it is charged. No waiver of any\nprovision herein shall constitute a waiver of any other provision hereof, or of the provision at any other time.\n6. This is an agreement between separate legal entities and neither is the agent or employee of the other for any purpose whatsoever. The\nparties do not intend to create a partnership or joint venture between themselves. Neither party shall have the right to bind the other to any\nagreement with a third party or to inure any obligation or liabilities on behalf of the other party.\n7. This Agreement contains the whole agreement between the parties concerning the subject matter hereof and there are no collateral or\nprecedent representation, agreements or conditions not specifically set forth herein.\n8. Any modification or amendment of any provisions of this Agreement must be in writing, signed by the parties hereof and dated subsequent\nto the date hereof.\n9. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever;\n1\n(i) the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion of\nany Section of this Agreement containing any such provisions held to be invalid, illegal or unenforceable) shall not in any way be\neffected or impaired thereby; and\n(ii) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this\nAgreement containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the\nintent manifested by the provision held, invalid illegal or unenforceable.\nIN WITNESS WHEREOF, the partied hereto have executed this Non-Circumvention/Non-Disclosure agreement on the day, month and year\nfirst written above.\nFlow Capital Advisor, Inc.\nJAG Media Holding, Inc.\nBy: /s/ Albert Auer\nBy: /s/ Thomas J. Mazzarisi\nName: Albert Auer\nName: Thomas J. Mazzarisi\nTitle: President\nTitle: Chairman & CEO\n2	EX-10.13 3 y31303alexv10w13.htm EX-10.13: NON-CIRCUMVENTION/NON-DISCLOSURE AGREEMENT\nExhibit 10.13\nNon-Circumvention/Non-Disclosure Agreement\nThis Non-Circumvention/Non-Disclosure Agreement is made as of this 1st day of January 2004, by and between Flow Capital Advisors, Inc.,\nhaving is principal place of business at 3727 Pine Lake Drive, Weston, FL 33332 (hereinafter “Finder”), and JAG Media Holdings, Inc., having\nits principal place of business at 6865 SW 18th Street, Suite B-13 Boca Raton, Florida 33433 (“hereinafter “Jag”).\n1. Pursuant to discussions between Flow and Jag, Flow has disclosed to Jag that certain parties, some of whom who have been identified to\nJag and others who have yet to be identified by Flow to Jag (the “Introduced Parties”), may be interested in entering into certain transactions with\nJag.\n2. Jag agrees that once Flow has disclosed the Identity of any Introduced Party to Jag, Jag, its officers, directors, shareholders, employees and\nagents shall not have any contacts with the Introduced Party other than through Flow, unless Flow grants permission in writing for such contacts.\nSpecifically, Jag agrees not to circumvent, avoid or bypass Flow, either directly or indirectly, in order to avoid payment of fees or commissions;\nor otherwise benefit, either financially or otherwise, from any information supplied to it in the context of any transaction with an Introduced\nParty.\n3. This Agreement shall be governed by and construed and enforced in accordance local laws of the State of Florida applicable to agreements\nmade and to be performed within the State, without regard to conflict of laws principles thereof.\n4. This Agreement shall inure to the benefit of, and is binding upon, the parties hereto and their respective principals, shareholders, heirs,\nofficers, representatives, successors and assigns.\n5. No waiver of any provisions hereof shall be valid unless it is in writing signed by the person against whom it is charged. No waiver of any\nprovision herein shall constitute a waiver of any other provision hereof, or of the provision at any other time.\n6. This is an agreement between separate legal entities and neither is the agent or employee of the other for any purpose whatsoever. The\nparties do not intend to create a partnership or joint venture between themselves. Neither party shall have the right to bind the other to any\nagreement with a third party or to inure any obligation or liabilities on behalf of the other party.\n7. This Agreement contains the whole agreement between the parties concerning the subject matter hereof and there are no collateral or\nprecedent representation, agreements or conditions not specifically set forth herein.\n8. Any modification or amendment of any provisions of this Agreement must be in writing, signed by the parties hereof and dated subsequent\nto the date hereof.\n9. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever;\n1\n(i) the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion of\nany Section of this Agreement containing any such provisions held to be invalid, illegal or unenforceable) shall not in any way be\neffected or impaired thereby; and\n(ii) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this\nAgreement containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the\nintent manifested by the provision held, invalid illegal or unenforceable.\nIN WITNESS WHEREQF, the partied hereto have executed this Non-Circumvention/Non-Disclosure agreement on the day, month and year\nfirst written above.\nFlow Capital Advisor, Inc. JAG Media Holding, Inc.\nBy: /s/ Albert Auer By: /s/ Thomas J. Mazzarisi\nName: Albert Auer Name: Thomas J. Mazzarisi\nTitle: President Title: Chairman & CEO	EX-10.13 3 y31303a1exv10w13.htm EX-10.13: NON-CIRCUMVENTIONNON-DISCLOSURE AGREEMENT\nExhibit 10.13\nNon-Circumvention/Non-Disclosure Agreement\nThis Non-Circumvention/Non-Disclosure Agreement is made as of this 1st day of January 2004, by and between Flow Capital Advisors, Inc.,\nhaving is principal place of business at 3727 Pine Lake Drive, Weston, FL 33332 (hereinafter "Finder"), and JAG Media Holdings, Inc., having\nits principal place of business at 6865 SW 18th Street, Suite B-13 Boca Raton, Florida 33433 ("hereinafter "Jag").\n1. Pursuant to discussions between Flow and Jag, Flow has disclosed to Jag that certain parties, some of whom who have been identified to\nJag and others who have yet to be identified by Flow to Jag (the "Introduced Parties"), may be interested in entering into certain transactions with\nJag.\n2. Jag agrees that once Flow has disclosed the Identity of any Introduced Party to Jag, Jag, its officers, directors, shareholders, employees and\nagents shall not have any contacts with the Introduced Party other than through Flow, unless Flow grants permission in writing for such contacts.\nSpecifically, Jag agrees not to circumvent, avoid or bypass Flow, either directly or indirectly, in order to avoid payment of fees or commissions;\nor otherwise benefit, either financially or otherwise, from any information supplied to it in the context of any transaction with an Introduced\nParty.\n3. This Agreement shall be governed by and construed and enforced in accordance local laws of the State of Florida applicable to agreements\nmade and to be performed within the State, without regard to conflict of laws principles thereof.\n4. This Agreement shall inure to the benefit of, and is binding upon, the parties hereto and their respective principals, shareholders, heirs,\nofficers, representatives, successors and assigns.\n5. No waiver of any provisions hereof shall be valid unless it is in writing signed by the person against whom it is charged. No waiver of any\nprovision herein shall constitute a waiver of any other provision hereof, or of the provision at any other time.\n6. This is an agreement between separate legal entities and neither is the agent or employee of the other for any purpose whatsoever. The\nparties do not intend to create a partnership or joint venture between themselves. Neither party shall have the right to bind the other to any\nagreement with a third party or to inure any obligation or liabilities on behalf of the other party.\n7. This Agreement contains the whole agreement between the parties concerning the subject matter hereof and there are no collateral or\nprecedent representation, agreements or conditions not specifically set forth herein.\n8. Any modification or amendment of any provisions of this Agreement must be in writing, signed by the parties hereof and dated subsequent\nto the date hereof.\n9. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever;\n1\n(i)\nthe validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion of\nany Section of this Agreement containing any such provisions held to be invalid illegal or unenforceable) shall not in any way be\neffected or impaired thereby; and\n(ii)\nto the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this\nAgreement containing any such provision held to be invalid, illegal or unenforceable) shall be construed SO as to give effect to the\nintent manifested by the provision held, invalid illegal or unenforceable.\nIN WITNESS WHEREOF, the partied hereto have executed this Non-Circumvention/Non-Disclosure agreement on the day, month and year\nfirst written above.\nFlow Capital Advisor, Inc.\nJAG Media Holding, Inc.\nBy: /s/ Albert Auer\nBy: /s/ Thomas J. Mazzarisi\nName: Albert Auer\nName: Thomas J. Mazzarisi\nTitle: President\nTitle: Chairman & CEO\n2	EX-10.13 3 y31303a1exv10w13.htm EX-10.13: NON-CIRCUMVENTION/NON-DISCLOSURE AGREEMENT\nExhibit 10.13\nNon-Circumvention/Non-Disclosure Agreement\nThis Non-Circumvention/Non-Disclosure Agreement is made as of this 1st day of January 2004, by and between Flow Capital Advisors, Inc.,\nhaving is principal place of business at 3727 Pine Lake Drive, Weston, FL 33332 (hereinafter “Finder”), and JAG Media Holdings, Inc., having\nits principal place of business at 6865 SW 18th Street, Suite B-13 Boca Raton, Florida 33433 (“hereinafter “Jag”).\n1. Pursuant to discussions between Flow and Jag, Flow has disclosed to Jag that certain parties, some of whom who have been identified to\nJag and others who have yet to be identified by Flow to Jag (the “Introduced Parties”), may be interested in entering into certain transactions with\nJag.\n2. Jag agrees that once Flow has disclosed the Identity of any Introduced Party to Jag, Jag, its officers, directors, shareholders, employees and\nagents shall not have any contacts with the Introduced Party other than through Flow, unless Flow grants permission in writing for such contacts.\nSpecifically, Jag agrees not to circumvent, avoid or bypass Flow, either directly or indirectly, in order to avoid payment of fees or commissions;\nor otherwise benefit, either financially or otherwise, from any information supplied to it in the context of any transaction with an Introduced\nParty.\n3. This Agreement shall be governed by and construed and enforced in accordance local laws of the State of Florida applicable to agreements\nmade and to be performed within the State, without regard to conflict of laws principles thereof.\n4. This Agreement shall inure to the benefit of, and is binding upon, the parties hereto and their respective principals, shareholders, heirs,\nofficers, representatives, successors and assigns.\n5. No waiver of any provisions hereof shall be valid unless it is in writing signed by the person against whom it is charged. No waiver of any\nprovision herein shall constitute a waiver of any other provision hereof, or of the provision at any other time.\n6. This is an agreement between separate legal entities and neither is the agent or employee of the other for any purpose whatsoever. The\nparties do not intend to create a partnership or joint venture between themselves. Neither party shall have the right to bind the other to any\nagreement with a third party or to inure any obligation or liabilities on behalf of the other party.\n7. This Agreement contains the whole agreement between the parties concerning the subject matter hereof and there are no collateral or\nprecedent representation, agreements or conditions not specifically set forth herein.\n8. Any modification or amendment of any provisions of this Agreement must be in writing, signed by the parties hereof and dated subsequent\nto the date hereof.\n9. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever;\n1\n(i) the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion of\nany Section of this Agreement containing any such provisions held to be invalid, illegal or unenforceable) shall not in any way be\neffected or impaired thereby; and\n(ii) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this\nAgreement containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the\nintent manifested by the provision held, invalid illegal or unenforceable.\nIN WITNESS WHEREOF, the partied hereto have executed this Non-Circumvention/Non-Disclosure agreement on the day, month and year\nfirst written above.\nFlow Capital Advisor, Inc.\nJAG Media Holding, Inc.\nBy: /s/ Albert Auer\nBy: /s/ Thomas J. Mazzarisi\nName: Albert Auer\nName: Thomas J. Mazzarisi\nTitle: President\nTitle: Chairman & CEO\n2
27b955a478a15230f33f70498cc8414c.pdf	effective_date jurisdiction party term	EX-10 .4 .3 18 v321826_ex10-4x3.htm EXHIBIT 10.4 .3\nINVENTION, NON-DISCLOSURE, AND NON-SOLICITATION AGREEMENT\nThis Invention, Non-Disclosure, and Non-Solicitation Agreement is made by and between Intercept Pharmaceuticals, Inc. (the "Company") and\nMark Pruzanski (the "Employee"). The agreement is retro-active with the effective date being the employee's date of hire, September 4, 2002.\nIN CONSIDERATION of the Employee's employment by the Company, and for other good and valuable consideration, the sufficiency of which\nis hereby acknowledged, the Employee agrees as follows:\n1. Condition of Employment.\nThe Employee acknowledges that her employment with the Company is contingent upon her agreement to sign and adhere to the provisions of\nthis Invention, Non-Disclosure, and Non-Solicitation Agreement (the "Agreement").\n2. Proprietary and Confidential Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the Company's\nbusiness, business relationships or financial affairs (collectively, "Proprietary Information") is and shall be the exclusive property of the\nCompany. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods, techniques,\nformulas, compositions, compounds, projects, developments, plans (including business and marketing plans), research data, clinical data,\nfinancial data (including sales costs, profits, pricing methods), personnel data, computer programs (including software used pursuant to a license\nagreement), customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will\nnot disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other\nthan in the performance of his/her duties as an employee of the Company) without written approval by an officer of the Company, either during\nor after her employment with the Company, unless and until such Proprietary Information has become public knowledge without fault by the\nEmployee.\n(b) The Employee agrees that all files, documents, letters, memoranda, reports, records, data, sketches, drawings, models, laboratory notebooks,\nprogram listings, computer equipment or devices, computer programs or other written, photographic, or other tangible material containing\nProprietary Information, whether created by the Employee or others, which shall come into his/her custody or possession, shall be and are the\nexclusive property of the Company to be used by the Employee only in the performance of his/her duties for the Company and shall not be\ncopied or removed from the Company premises except in the pursuit of the business of the Company. All such materials or copies thereof and all\ntangible property of the Company in the custody or possession of the Employee shall be delivered to the Company, upon the earlier of (i) a\nrequest by the Company or (ii) termination of his/her employment. After such delivery, the Employee shall not retain any such materials or\ncopies thereof or any such tangible property.\n(c) The Employee agrees that her obligation not to disclose or to use information and materials of the types set forth in paragraphs (a) and (b)\nabove, and her obligation to return materials and tangible property set forth in paragraph (b) above also extends to such types of information,\nmaterials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have disclosed or\nentrusted the same to the Company or to the Employee.\n3. Inventions.\n(a) The Employee will make full and prompt disclosure to the Company of all inventions, creations, improvements, discoveries, trade secrets,\nsecret processes, technology, know-how, methods, developments, software, and works of authorship or other creative works, whether patentable\nor not, which are created, made, conceived or reduced to practice by the Employee or under the Employee's direction or jointly with others\nduring her employment by the Company, whether or not during normal working hours or on the premises of the Company (all of which are\ncollectively referred to in this Agreement as "Inventions").\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all her right,\ntitle and interest in and to all Inventions and all related patents, patent applications, copyrights and copyright applications to the maximum extent\npermitted by the laws of the State of New York or any like statute of any other state. The Employee hereby also waives all claims to moral rights\nin any Inventions. The Employee understands that the provisions of this Agreement requiring assignment of Inventions to the Company do not\napply to any invention which qualifies fully under the provisions of the laws of the State of New York. The Employee agrees to advise the\nCompany promptly in writing of any inventions that she believes meets the criteria in the laws of the State of New York.\n(c) The Employee agrees to cooperate fully with the Company and to take such further actions as may be necessary or desirable, both during and\nafter her employment with the Company, with respect to the procurement, maintenance and enforcement of copyrights, patents and other\nintellectual property rights (both in the United States and foreign countries) relating to Inventions. The Employee shall sign all papers, including,\nwithout limitation, copyright applications, patent applications, declarations, oaths, formal assignments, assignments of priority rights, and powers\nof attorney, which the Company may deem necessary or desirable in order to protect its rights and interests in any Invention. The Employee\nfurther agrees that if the Company is unable, after reasonable effort, to secure the signature of the Employee on any such papers, any executive\nofficer of the Company shall be entitled to execute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee\nhereby irrevocably designates and appoints each executive officer of the Company as her agent and attorney-infact to execute any such papers on\nher behalf, and to take any and all actions as the Company may deem necessary or desirable in order to protect its rights and interests in any\nInvention, under the conditions described in this sentence.\n4. Non-Solicitation.\n(a) While employed by the Company and for a period of one (1) year after the termination or cessation of Employee’s employment for any\nreason, the Employee will not, directly or indirectly, either alone or in association with others, recruit or solicit any person who was employed by\nthe Company or engaged as an independent contractor at any time during the period of the Employee's employment with the Company, except\nfor an individual whose employment with or service for the Company has been terminated for a period of six months or longer.\n(b) If any restriction set forth in this Section 4 is found by any court of competent jurisdiction to be unenforceable because it extends for too long\na period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum\nperiod of time, range of activities or geographic area as to which it may be enforceable.\n(c) The geographic scope of this Section shall extend to anywhere the Company or any of its subsidiaries is doing business, has done business or\nhas plans to do business.\n(d) If the Employee violates the provisions of this Section, the Employee shall continue to be held by the restrictions set forth in this Section,\nuntil a period equal to the period of restriction has expired without any violation.\n5. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the terms\nof any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary\ninformation in the course of his/her employment with the Company, to refrain from competing, directly or indirectly, with the business of such\nprevious employer or any other party, or to refrain from soliciting employees, customers or suppliers of such previous employer or other party.\nThe Employee further represents that his/her performance of all the terms of this Agreement and the performance of her duties as an employee of\nthe Company do not and will not breach any agreement with any prior employer or other party to which the Employee is a party (including\nwithout limitation any non-disclosure or non-competition agreement), and that the Employee will not disclose to the Company or induce the\nCompany to use any confidential or proprietary information or material belonging to any previous employer or others.\n6. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions that are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n7. Not An Employment Contract.\nThe Employee acknowledges that this Agreement does not constitute a contract of employment, either express or implied, and does not imply\nthat the Company will continue the Employee’s employment for any period of time.\n8. General Provisions.\n(a) No Conflict. The Employee represents that the execution and performance by him/her of this Agreement does not and will not conflict with or\nbreach the terms of any other agreement by which the Employee is bound.\n(b) Entire Agreement. This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the\nsubject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in\nwriting signed by the Employee and the Company. The Employee agrees that any change or changes in his/her duties, salary or compensation\nafter the signing of this Agreement shall not affect the validity or scope of this Agreement.\n(c) Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect or impair the validity or enforceability of\nany other provision of this Agreement.\n(d) Waiver. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other\nright. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n(e) Employee Acknowledgment and Equitable Remedies. The Employee acknowledges that the restrictions contained in this Agreement are\nnecessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose.\nThe Employee agrees that any breach of this Agreement is likely to cause the Company substantial and irrevocable damage and therefore, in the\nevent of any breach or threatened breach of this Agreement, the Employee agrees that the Company, in addition to such other remedies that may\nbe available, shall be entitled to specific performance and other injunctive relief without posting a bond, and the Employee hereby waives the\nadequacy of a remedy at law as a defense to such relief.\n(f) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective successors and\nassigns, including any corporation or entity with which or into which the Company may be merged or which may succeed to all or substantially\nall of its assets or business, provided however that the obligations of the Employee are personal and shall not be assigned by the Employee.\n(g) Subsidiaries and Affiliates. The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company\nor any subsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be re-signed at\nthe time of such transfer.\n(h) Governing Law, Forum and Jurisdiction. This Agreement shall be governed by and construed as a sealed instrument under and in accordance\nwith the laws of the State of New York without regard to conflict of laws provisions. Any action, suit, or other legal proceeding which is\ncommenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the State of\nNew York (or, if appropriate, a federal court located within New York), and the Company and the Employee each consents to the jurisdiction of\nsuch a court.\n(i) Captions. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope\nor substance of any section of this Agreement.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nWITNESS our hands and seals:\nINTERCEPT PHARMACEUTICALS, INC.\n/s/ Barbara Duncan\n12/31/09\nBy: Barbara Duncan, CFO\nDate\n/s/ Mark Pruzanski\nDec. 31, 2009\nBy: Mark Pruzanski\nDate	EX-10.4.3 18 v321826_ex10-4x3.htm EXHIBIT 10.4.3\nINVENTION, NON-DISCLOSURE, AND NON-SOLICITATION AGREEMENT\nThis Invention, Non-Disclosure, and Non-Solicitation Agreement is made by and between Intercept Pharmaceuticals, Inc. (the "Company") and\nMark Pruzanski (the "Employee"). The agreement is retro-active with the effective date being the employee's date of hire, September 4, 2002.\nIN CONSIDERATION of the Employee's employment by the Company, and for other good and valuable consideration, the sufficiency of which\nis hereby acknowledged, the Employee agrees as follows:\n1. Condition of Employment.\nThe Employee acknowledges that her employment with the Company is contingent upon her agreement to sign and adhere to the provisions of\nthis Invention, Non-Disclosure, and Non-Solicitation Agreement (the "Agreement").\n2. Proprietary and Confidential Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the Company's\nbusiness, business relationships or financial affairs (collectively, "Proprietary Information") is and shall be the exclusive property of the\nCompany. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods, techniques,\nformulas, compositions, compounds, projects, developments, plans (including business and marketing plans), research data, clinical data,\nfinancial data (including sales costs, profits, pricing methods), personnel data, computer programs (including software used pursuant to a license\nagreement), customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will\nnot disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other\nthan in the performance of his/her duties as an employee of the Company) without written approval by an officer of the Company, either during\nor after her employment with the Company, unless and until such Proprietary Information has become public knowledge without fault by the\nEmployee.\n(b) The Employee agrees that all files, documents, letters, memoranda, reports, records, data, sketches, drawings, models, laboratory notebooks,\nprogram listings, computer equipment or devices, computer programs or other written, photographic, or other tangible material containing\nProprietary Information, whether created by the Employee or others, which shall come into his/her custody or possession, shall be and are the\nexclusive property of the Company to be used by the Employee only in the performance of his/her duties for the Company and shall not be\ncopied or removed from the Company premises except in the pursuit of the business of the Company. All such materials or copies thereof and all\ntangible property of the Company in the custody or possession of the Employee shall be delivered to the Company, upon the earlier of (i) a\nrequest by the Company or (ii) termination of his/her employment. After such delivery, the Employee shall not retain any such materials or\ncopies thereof or any such tangible property.\n(c) The Employee agrees that her obligation not to disclose or to use information and materials of the types set forth in paragraphs (a) and (b)\nabove, and her obligation to return materials and tangible property set forth in paragraph (b) above also extends to such types of information,\nmaterials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have disclosed or\nentrusted the same to the Company or to the Employee.\n3. Inventions.\n(a) The Employee will make full and prompt disclosure to the Company of all inventions, creations, improvements, discoveries, trade secrets,\nsecret processes, technology, know-how, methods, developments, software, and works of authorship or other creative works, whether patentable\nor not, which are created, made, conceived or reduced to practice by the Employee or under the Employee's direction or jointly with others\nduring her employment by the Company, whether or not during normal working hours or on the premises of the Company (all of which are\ncollectively referred to in this Agreement as "Inventions").\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all her right,\ntitle and interest in and to all Inventions and all related patents, patent applications, copyrights and copyright applications to the maximum extent\npermitted by the laws of the State of New York or any like statute of any other state. The Employee hereby also waives all claims to moral rights\nin any Inventions. The Employee understands that the provisions of this Agreement requiring assignment of Inventions to the Company do not\napply to any invention which qualifies fully under the provisions of the laws of the State of New York. The Employee agrees to advise the\nCompany promptly in writing of any inventions that she believes meets the criteria in the laws of the State of New York.\n(c) The Employee agrees to cooperate fully with the Company and to take such further actions as may be necessary or desirable, both during and\nafter her employment with the Company, with respect to the procurement, maintenance and enforcement of copyrights, patents and other\nintellectual property rights (both in the United States and foreign countries) relating to Inventions. The Employee shall sign all papers, including,\nwithout limitation, copyright applications, patent applications, declarations, oaths, formal assignments, assignments of priority rights, and powers\nof attorney, which the Company may deem necessary or desirable in order to protect its rights and interests in any Invention. The Employee\nfurther agrees that if the Company is unable, after reasonable effort, to secure the signature of the Employee on any such papers, any executive\nofficer of the Company shall be entitled to execute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee\nhereby irrevocably designates and appoints each executive officer of the Company as her agent and attorney-infact to execute any such papers on\nher behalf, and to take any and all actions as the Company may deem necessary or desirable in order to protect its rights and interests in any\nInvention, under the conditions described in this sentence.\n4. Non-Solicitation.\n(a) While employed by the Company and for a period of one (1) year after the termination or cessation of Employee’s employment for any\nreason, the Employee will not, directly or indirectly, either alone or in association with others, recruit or solicit any person who was employed by\nthe Company or engaged as an independent contractor at any time during the period of the Employee's employment with the Company, except\nfor an individual whose employment with or service for the Company has been terminated for a period of six months or longer.\n(b) If any restriction set forth in this Section 4 is found by any court of competent jurisdiction to be unenforceable because it extends for too long\na period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum\nperiod of time, range of activities or geographic area as to which it may be enforceable.\n(c) The geographic scope of this Section shall extend to anywhere the Company or any of its subsidiaries is doing business, has done business or\nhas plans to do business.\n(d) If the Employee violates the provisions of this Section, the Employee shall continue to be held by the restrictions set forth in this Section,\nuntil a period equal to the period of restriction has expired without any violation.\n5. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the terms\nof any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary\ninformation in the course of his/her employment with the Company, to refrain from competing, directly or indirectly, with the business of such\nprevious employer or any other party, or to refrain from soliciting employees, customers or suppliers of such previous employer or other party.\nThe Employee further represents that his/her performance of all the terms of this Agreement and the performance of her duties as an employee of\nthe Company do not and will not breach any agreement with any prior employer or other party to which the Employee is a party (including\nwithout limitation any non-disclosure or non-competition agreement), and that the Employee will not disclose to the Company or induce the\nCompany to use any confidential or proprietary information or material belonging to any previous employer or others.\n6. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions that are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n7. Not An Employment Contract.\nThe Employee acknowledges that this Agreement does not constitute a contract of employment, either express or implied, and does not imply\nthat the Company will continue the Employee’s employment for any period of time.\n8. General Provisions.\n(a) No Conflict. The Employee represents that the execution and performance by him/her of this Agreement does not and will not conflict with or\nbreach the terms of any other agreement by which the Employee is bound.\n(b) Entire Agreement. This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the\nsubject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in\nwriting signed by the Employee and the Company. The Employee agrees that any change or changes in his/her duties, salary or compensation\nafter the signing of this Agreement shall not affect the validity or scope of this Agreement.\n \n(c) Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect or impair the validity or enforceability of\nany other provision of this Agreement.\n(d) Waiver. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other\nright. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\nnecessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose.\nThe Employee agrees that any breach of this Agreement is likely to cause the Company substantial and irrevocable damage and therefore, in the\nevent of any breach or threatened breach of this Agreement, the Employee agrees that the Company, in addition to such other remedies that may\nbe available, shall be entitled to specific performance and other injunctive relief without posting a bond, and the Employee hereby waives the\nadequacy of a remedy at law as a defense to such relief.\n(f) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective successors and\nassigns, including any corporation or entity with which or into which the Company may be merged or which may succeed to all or substantially\nall of its assets or business, provided however that the obligations of the Employee are personal and shall not be assigned by the Employee.\n(g) Subsidiaries and Affiliates. The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company\nor any subsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be re-signed at\nthe time of such transfer.\n(h) Governing Law, Forum and Jurisdiction. This Agreement shall be governed by and construed as a sealed instrument under and in accordance\nwith the laws of the State of New York without regard to conflict of laws provisions. Any action, suit, or other legal proceeding which is\ncommenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the State of\nNew York (or, if appropriate, a federal court located within New York), and the Company and the Employee each consents to the jurisdiction of\nsuch a court.\n(i) Captions. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope\nor substance of any section of this Agreement.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nWITNESS our hands and seals:\nINTERCEPT PHARMACEUTICALS, INC.\n/s/ Barbara Duncan 12/31/09\nBy: Barbara Duncan, CFO Date\n/s/ Mark Pruzanski Dec. 31, 2009\nBy: Mark Pruzanski Date	EX-10.4.3 18 v321826_ex10-4x3.htm EXHIBIT 10.4.3\nINVENTION, NON-DISCLOSURE, AND NON-SOLICITATION AGREEMENT\nThis Invention, Non-Disclosure, and Non-Solicitation Agreement is made by and between Intercept Pharmaceuticals, Inc. (the "Company") and\nMark Pruzanski (the "Employee"). The agreement is retro-active with the effective date being the employee's date of hire, September 4, 2002.\nIN CONSIDERATION of the Employee's employment by the Company, and for other good and valuable consideration, the sufficiency of which\nis hereby acknowledged, the Employee agrees as follows:\n1. Condition of Employment.\nThe Employee acknowledges that her employment with the Company is contingent upon her agreement to sign and adhere to the provisions of\nthis Invention, Non-Disclosure, and Non-Solicitation Agreement (the "Agreement").\n2. Proprietary and Confidential Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the Company's\nbusiness, business relationships or financial affairs (collectively, "Proprietary Information") is and shall be the exclusive property of the\nCompany. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods, techniques,\nformulas, compositions, compounds, projects, developments, plans (including business and marketing plans), research data, clinical data,\nfinancial data (including sales costs, profits, pricing methods), personnel data, computer programs (including software used pursuant to a license\nagreement), customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The\nEmployee\nwill\nnot disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other\nthan in the performance of his/her duties as an employee of the Company) without written approval by an officer of the Company, either during\nor after her employment with the Company, unless and until such Proprietary Information has become public knowledge without fault by the\nEmployee.\n(b) The Employee agrees that all files, documents, letters, memoranda, reports, records, data, sketches, drawings, models, laboratory notebooks,\nprogram listings, computer equipment or devices, computer programs or other written, photographic, or other tangible material containing\nProprietary Information, whether created by the Employee or others, which shall come into his/her custody or possession, shall be and are the\nexclusive property of the Company to be used by the Employee only in the performance of his/her duties for the Company and shall not be\ncopied or removed from the Company premises except in the pursuit of the business of the Company. All such materials or copies thereof and\nall\ntangible property of the Company in the custody or possession of the Employee shall be delivered to the Company, upon the earlier of (i) a\nrequest by the Company or (ii) termination of his/her employment. After such delivery, the Employee shall not retain any such materials or\ncopies thereof or any such tangible property.\n(c) The Employee agrees that her obligation not to disclose or to use information and materials of the types set forth in paragraphs (a) and (b)\nabove, and her obligation to return materials and tangible property set forth in paragraph (b) above also extends to such types of information,\nmaterials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have disclosed or\nentrusted the same to the Company or to the Employee.\n3. Inventions.\n(a) The Employee will make full and prompt disclosure to the Company of all inventions, creations, improvements, discoveries, trade secrets,\nsecret processes, technology, know-how, methods, developments, software, and works of authorship or other creative works, whether patentable\nor not, which are created, made, conceived or reduced to practice by the Employee or under the Employee's direction or jointly with others\nduring her employment by the Company, whether or not during normal working hours or on the premises of the Company (all of which are\ncollectively referred to in this Agreement as "Inventions").\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all her right,\ntitle and interest in and to all Inventions and all related patents, patent applications, copyrights and copyright applications to the maximum extent\npermitted by the laws of the State of New York or any like statute of any other state. The Employee hereby also waives all claims to moral rights\nin any Inventions. The Employee understands that the provisions of this Agreement requiring assignment of Inventions to the Company do not\napply to any invention which qualifies fully under the provisions of the laws of the State of New York. The Employee agrees to advise the\nCompany promptly in writing of any inventions that she believes meets the criteria in the laws of the State of New York.\n(c) The Employee agrees to cooperate fully with the Company and to take such further actions as may be necessary or desirable, both during and\nafter her employment with the Company, with respect to the procurement, maintenance and enforcement of copyrights, patents and other\nintellectual property rights (both in the United States and foreign countries) relating to Inventions. The Employee shall sign all papers, including,\nwithout limitation, copyright applications, patent applications, declarations, oaths, formal assignments, assignments of priority rights, and powers\nof attorney, which the Company may deem necessary or desirable in order to protect its rights and interests in any Invention. The Employee\nfurther\nagrees that if the Company is unable, after reasonable effort, to secure the signature of the Employee on any such papers, any executive\nofficer of the Company shall be entitled to execute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee\nhereby irrevocably designates and appoints each executive officer of the Company as her agent and attorney-infact to execute any such papers\non\nher behalf, and to take any and all actions as the Company may deem necessary or desirable in order to protect its rights and interests in any\nInvention, under the conditions described in this sentence.\n4. Non-Solicitation.\n(a) While employed by the Company and for a period of one (1) year after the termination or cessation of Employee's employment for any\nreason, the Employee will not, directly or indirectly, either alone or in association with others, recruit or solicit any person who was employed by\nthe Company or engaged as an independent contractor at any time during the period of the Employee's employment with the Company, except\nfor an individual whose employment with or service for the Company has been terminated for a period of six months or longer.\n(b)\nIf any restriction set forth in this Section 4 is found by any court of competent jurisdiction to be unenforceable because it extends for too long\na period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum\nperiod of time, range of activities or geographic area as to which it may be enforceable.\n(c) The geographic scope of this Section shall extend to anywhere the Company or any of its subsidiaries is doing business, has done business\nor\nhas plans to do business.\n(d) If the Employee violates the provisions of this Section, the Employee shall continue to be held by the restrictions set forth in this Section,\nuntil a period equal to the period of restriction has expired without any violation.\n5. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the terms\nof any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary\ninformation in the course of his/her employment with the Company, to refrain from competing, directly or indirectly, with the business of such\nprevious employer or any other party, or to refrain from soliciting employees, customers or suppliers of such previous employer or other party.\nThe Employee further represents that his/her performance of all the terms of this Agreement and the performance of her duties as an employee\nof\nthe Company do not and will not breach any agreement with any prior employer or other party to which the Employee is a party (including\nwithout limitation any non-disclosure or non-competition agreement), and that the Employee will not disclose to the Company or induce the\nCompany to use any confidential or proprietary information or material belonging to any previous employer or others.\n6. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions that are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n7. Not An Employment Contract.\nThe Employee acknowledges that this Agreement does not constitute a contract of employment, either express or implied, and does not imply\nthat the Company will continue the Employee's employment for any period of time.\n8. General Provisions.\n(a) No Conflict. The Employee represents that the execution and performance by him/her of this Agreement does not and will not conflict with\nor\nbreach the terms of any other agreement by which the Employee is bound.\n(b) Entire Agreement. This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the\nsubject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in\nwriting signed by the Employee and the Company. The Employee agrees that any change or changes in his/her duties, salary or compensation\nafter the signing of this Agreement shall not affect the validity or scope of this Agreement.\n(c) Severability.. The invalidity or unenforceability of any provision of this Agreement shall not affect or impair the validity or enforceability of\nany other provision of this Agreement.\n(d) Waiver. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other\nright. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n(e) Employee Acknowledgment and Equitable Remedies. The Employee acknowledges that the restrictions contained in this Agreement are\nnecessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose.\nThe Employee agrees that any breach of this Agreement is likely to cause the Company substantial and irrevocable damage and therefore, in the\nevent\nof\nany\nbreach\nor\nthreatened\nbreach\nof\nthis\nAgreement,\nthe\nEmployee\nagrees\nthat\nthe\nCompany,\nin\naddition\nto\nsuch\nother\nremedies\nthat\nmay\nbe available, shall be entitled to specific performance and other injunctive relief without posting a bond, and the Employee hereby waives the\nadequacy of a remedy at law as a defense to such relief.\n(f) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective successors and\nassigns, including any corporation or entity with which or into which the Company may be merged or which may succeed to all or substantially\nall of its assets or business, provided however that the obligations of the Employee are personal and shall not be assigned by the Employee.\n(g) Subsidiaries and Affiliates. The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company\nor any subsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be re-signed\nat\nthe time of such transfer.\n(h) Governing Law, Forum and Jurisdiction. This Agreement shall be governed by and construed as a sealed instrument under and in accordance\nwith the laws of the State of New York without regard to conflict of laws provisions. Any action, suit, or other legal proceeding which is\ncommenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the State\nof\nNew York (or, if appropriate, a federal court located within New York), and the Company and the Employee each consents to the jurisdiction of\nsuch a court.\n(i) Captions. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope\nor substance of any section of this Agreement.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nWITNESS our hands and seals:\nINTERCEPT PHARMACEUTICALS, INC.\n/s/ Barbara Duncan\n12/31/09\nBy: Barbara Duncan, CFO\nDate\n/s/ Mark Pruzanski\nDec. 31, 2009\nBy: Mark Pruzanski\nDate	EX-10 .4 .3 18 v321826_ex10-4x3.htm EXHIBIT 10.4 .3\nINVENTION, NON-DISCLOSURE, AND NON-SOLICITATION AGREEMENT\nThis Invention, Non-Disclosure, and Non-Solicitation Agreement is made by and between Intercept Pharmaceuticals, Inc. (the "Company") and\nMark Pruzanski (the "Employee"). The agreement is retro-active with the effective date being the employee's date of hire, September 4, 2002.\nIN CONSIDERATION of the Employee's employment by the Company, and for other good and valuable consideration, the sufficiency of which\nis hereby acknowledged, the Employee agrees as follows:\n1. Condition of Employment.\nThe Employee acknowledges that her employment with the Company is contingent upon her agreement to sign and adhere to the provisions of\nthis Invention, Non-Disclosure, and Non-Solicitation Agreement (the "Agreement").\n2. Proprietary and Confidential Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the Company's\nbusiness, business relationships or financial affairs (collectively, "Proprietary Information") is and shall be the exclusive property of the\nCompany. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods, techniques,\nformulas, compositions, compounds, projects, developments, plans (including business and marketing plans), research data, clinical data,\nfinancial data (including sales costs, profits, pricing methods), personnel data, computer programs (including software used pursuant to a license\nagreement), customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will\nnot disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other\nthan in the performance of his/her duties as an employee of the Company) without written approval by an officer of the Company, either during\nor after her employment with the Company, unless and until such Proprietary Information has become public knowledge without fault by the\nEmployee.\n(b) The Employee agrees that all files, documents, letters, memoranda, reports, records, data, sketches, drawings, models, laboratory notebooks,\nprogram listings, computer equipment or devices, computer programs or other written, photographic, or other tangible material containing\nProprietary Information, whether created by the Employee or others, which shall come into his/her custody or possession, shall be and are the\nexclusive property of the Company to be used by the Employee only in the performance of his/her duties for the Company and shall not be\ncopied or removed from the Company premises except in the pursuit of the business of the Company. All such materials or copies thereof and all\ntangible property of the Company in the custody or possession of the Employee shall be delivered to the Company, upon the earlier of (i) a\nrequest by the Company or (ii) termination of his/her employment. After such delivery, the Employee shall not retain any such materials or\ncopies thereof or any such tangible property.\n(c) The Employee agrees that her obligation not to disclose or to use information and materials of the types set forth in paragraphs (a) and (b)\nabove, and her obligation to return materials and tangible property set forth in paragraph (b) above also extends to such types of information,\nmaterials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have disclosed or\nentrusted the same to the Company or to the Employee.\n3. Inventions.\n(a) The Employee will make full and prompt disclosure to the Company of all inventions, creations, improvements, discoveries, trade secrets,\nsecret processes, technology, know-how, methods, developments, software, and works of authorship or other creative works, whether patentable\nor not, which are created, made, conceived or reduced to practice by the Employee or under the Employee's direction or jointly with others\nduring her employment by the Company, whether or not during normal working hours or on the premises of the Company (all of which are\ncollectively referred to in this Agreement as "Inventions").\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all her right,\ntitle and interest in and to all Inventions and all related patents, patent applications, copyrights and copyright applications to the maximum extent\npermitted by the laws of the State of New York or any like statute of any other state. The Employee hereby also waives all claims to moral rights\nin any Inventions. The Employee understands that the provisions of this Agreement requiring assignment of Inventions to the Company do not\napply to any invention which qualifies fully under the provisions of the laws of the State of New York. The Employee agrees to advise the\nCompany promptly in writing of any inventions that she believes meets the criteria in the laws of the State of New York.\n(c) The Employee agrees to cooperate fully with the Company and to take such further actions as may be necessary or desirable, both during and\nafter her employment with the Company, with respect to the procurement, maintenance and enforcement of copyrights, patents and other\nintellectual property rights (both in the United States and foreign countries) relating to Inventions. The Employee shall sign all papers, including,\nwithout limitation, copyright applications, patent applications, declarations, oaths, formal assignments, assignments of priority rights, and powers\nof attorney, which the Company may deem necessary or desirable in order to protect its rights and interests in any Invention. The Employee\nfurther agrees that if the Company is unable, after reasonable effort, to secure the signature of the Employee on any such papers, any executive\nofficer of the Company shall be entitled to execute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee\nhereby irrevocably designates and appoints each executive officer of the Company as her agent and attorney-infact to execute any such papers on\nher behalf, and to take any and all actions as the Company may deem necessary or desirable in order to protect its rights and interests in any\nInvention, under the conditions described in this sentence.\n4. Non-Solicitation.\n(a) While employed by the Company and for a period of one (1) year after the termination or cessation of Employee’s employment for any\nreason, the Employee will not, directly or indirectly, either alone or in association with others, recruit or solicit any person who was employed by\nthe Company or engaged as an independent contractor at any time during the period of the Employee's employment with the Company, except\nfor an individual whose employment with or service for the Company has been terminated for a period of six months or longer.\n(b) If any restriction set forth in this Section 4 is found by any court of competent jurisdiction to be unenforceable because it extends for too long\na period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum\nperiod of time, range of activities or geographic area as to which it may be enforceable.\n(c) The geographic scope of this Section shall extend to anywhere the Company or any of its subsidiaries is doing business, has done business or\nhas plans to do business.\n(d) If the Employee violates the provisions of this Section, the Employee shall continue to be held by the restrictions set forth in this Section,\nuntil a period equal to the period of restriction has expired without any violation.\n5. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the terms\nof any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary\ninformation in the course of his/her employment with the Company, to refrain from competing, directly or indirectly, with the business of such\nprevious employer or any other party, or to refrain from soliciting employees, customers or suppliers of such previous employer or other party.\nThe Employee further represents that his/her performance of all the terms of this Agreement and the performance of her duties as an employee of\nthe Company do not and will not breach any agreement with any prior employer or other party to which the Employee is a party (including\nwithout limitation any non-disclosure or non-competition agreement), and that the Employee will not disclose to the Company or induce the\nCompany to use any confidential or proprietary information or material belonging to any previous employer or others.\n6. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions that are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n7. Not An Employment Contract.\nThe Employee acknowledges that this Agreement does not constitute a contract of employment, either express or implied, and does not imply\nthat the Company will continue the Employee’s employment for any period of time.\n8. General Provisions.\n(a) No Conflict. The Employee represents that the execution and performance by him/her of this Agreement does not and will not conflict with or\nbreach the terms of any other agreement by which the Employee is bound.\n(b) Entire Agreement. This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the\nsubject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in\nwriting signed by the Employee and the Company. The Employee agrees that any change or changes in his/her duties, salary or compensation\nafter the signing of this Agreement shall not affect the validity or scope of this Agreement.\n(c) Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect or impair the validity or enforceability of\nany other provision of this Agreement.\n(d) Waiver. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other\nright. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n(e) Employee Acknowledgment and Equitable Remedies. The Employee acknowledges that the restrictions contained in this Agreement are\nnecessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose.\nThe Employee agrees that any breach of this Agreement is likely to cause the Company substantial and irrevocable damage and therefore, in the\nevent of any breach or threatened breach of this Agreement, the Employee agrees that the Company, in addition to such other remedies that may\nbe available, shall be entitled to specific performance and other injunctive relief without posting a bond, and the Employee hereby waives the\nadequacy of a remedy at law as a defense to such relief.\n(f) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective successors and\nassigns, including any corporation or entity with which or into which the Company may be merged or which may succeed to all or substantially\nall of its assets or business, provided however that the obligations of the Employee are personal and shall not be assigned by the Employee.\n(g) Subsidiaries and Affiliates. The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company\nor any subsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be re-signed at\nthe time of such transfer.\n(h) Governing Law, Forum and Jurisdiction. This Agreement shall be governed by and construed as a sealed instrument under and in accordance\nwith the laws of the State of New York without regard to conflict of laws provisions. Any action, suit, or other legal proceeding which is\ncommenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the State of\nNew York (or, if appropriate, a federal court located within New York), and the Company and the Employee each consents to the jurisdiction of\nsuch a court.\n(i) Captions. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope\nor substance of any section of this Agreement.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nWITNESS our hands and seals:\nINTERCEPT PHARMACEUTICALS, INC.\n/s/ Barbara Duncan\n12/31/09\nBy: Barbara Duncan, CFO\nDate\n/s/ Mark Pruzanski\nDec. 31, 2009\nBy: Mark Pruzanski\nDate
2880b467de68b29fae439ce40c07a82a.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 9 d72355dex99d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nLOGO\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (“Agreement”) between Aerohive Networks, Inc., on behalf of itself and its subsidiary and affiliated entities\n(“Aerohive Networks”), and the other party identified below, on behalf of itself and its subsidiaries and affiliated entities (“Participant”), is effective\nas of April 1, 2019 (“Effective Date”).\n1. Confidential Information: “Confidential Information” means (a) the description, existence or content of a business, product or technology\ndevelopment opportunity and the relationship between the parties to which this Agreement relates, and (b) any and all current and future product\ninformation, roadmap, technical or financial information, forecasts, customer names, addresses, and related data, contracts, practices, services and\nsupport, procedures, and other business information including, but not limited to, software, reports, methods, strategies, plans, documents, drawings,\ndesigns, tools, models, inventions, patents, patent applications, trade secrets and any other intellectual property and proprietary information of the\nparties, or of any third parties that may be subject to a similar agreement, that may be disclosed between the parties under this Agreement and during its\nterm whether in written, oral, electronic, website- based, or other form, including information acquired during facility tours, and regardless of whether it\nis identified as “confidential”.\n2. Purpose of Disclosure: Subject to the terms, conditions and limitations of this Agreement, the recipient may use the Confidential Information solely\nfor the purpose(s) of exploring, implementing, conducting and/or maintaining a business, product, technology development or other opportunity of\nmutual interest and any ongoing relationship related thereto (the “Use”).\nAerohive – NDA\n–\nMutual – (10-2017)\nPage1of2\nConfidential\n3. Obligations and Duty of Care: The recipient of Confidential\nInformation agrees (i) not to disclose, communicate, or convey\nConfidential Information received hereunder, whether wholly or\npartially, to any third party, except as permitted herein;\n(ii) to use the same degree of care, but no less than a reasonable degree\nof care, to prevent any unauthorized use or disclosure of Confidential\nInformation, as the recipient uses to protect its own information that it\ndeems confidential or does not desire to disclose, publish or otherwise\nmake public; (iii) not to disclose Confidential Information to any person,\nexcept to its directors, employees, contractors, agents, affiliates,\nattorneys and consultants whom the recipient has a reasonable basis to\nbelieve have a demonstrable need to know in connection with, or who\nare directly involved in, the above-mentioned Use, who have been\ninformed of its confidential nature, and who, prior to receipt, have agreed\nto be or are, pursuant to their terms of employment or consultancy,,\nbound to protect the discloser’s rights hereunder; (iv) to be liable for any\nmisuse of Confidential Information by such persons; (v) not to use\nConfidential Information for any purpose other than reasonably related\nto the Use; and (vi) not to copy, alter, modify, disassemble, reverse\nengineer, reconstruct or decompile any of the Confidential Information\nor any portion thereof, in whole or in part, unless permitted in writing by,\nand signed by an authorized representative of, the discloser.\n4. Exceptions to Duty of Care: The obligations imposed upon the\nparties do not apply to information which : (i) is already rightfully in the\npossession of or known without a duty of confidentiality, or restriction\non disclosure or use; (ii) is or becomes publicly known at any time\nthrough no violation of this Agreement; (iii) is rightfully received by the\nrecipient from any third party without a duty of confidentiality, or\nrestriction on disclosure or use; (iv) is rightfully and independently\ndeveloped by the recipient without violating this Agreement or reliance\nupon any of the discloser’s Confidential Information; (v) is expressly\napproved in writing, by the discloser’s authorized representative, for\nrelease or other use by the recipient;\nor (vi) to the extent required to be disclosed by court or administrative\norder, subpoena or other legal process or regulatory compliance\nobligation; provided that the recipient will provide the discloser with\nprompt notice prior to such disclosure and cooperate with the discloser, to\nthe extent reasonable, to respond to the required disclosure. Nothing\nherein restricts either party, absent breach of this Agreement, from\nmarketing or providing products or services that compete with products or\nservices of the other party, or to engage in independent development of\nproducts or services similar to those developed by the other party and/or\nwhich are related to the above-mentioned Use.\n5. Title: All Confidential Information is and shall remain the discloser’s\nproperty and no right, title, interest or license thereto, other than\nspecifically limited to the Use, is or may be assumed to be conveyed by\nthe discloser.\n6. Term, Termination, and Duty to Return: This Agreement expires two\n(2) years from the Effective Date. Either party may earlier terminate this\nAgreement upon thirty (30) days prior written notice at any time, with or\nwithout cause. Upon written request at any time by the discloser, whether\nprior to or following expiration or earlier termination of this Agreement,\nthe recipient shall promptly return all Confidential Information and all\ncopies thereof, in whatever form, or destroy them with written certification\nto the discloser of such destruction, except to the specific extent retention\nof such Confidential Information is required by law or regulation. The\nrecipient agrees not to disclose Confidential Information for two (2) years\nfrom the date of expiration or earlier termination of this Agreement,\nexcept for source code, which will be protected in perpetuity.\n7. Notice: The recipient agrees to notify the discloser in writing\nimmediately of any unauthorized release or misuse of Confidential\nInformation or a material breach of this Agreement of which it becomes\naware.\n8. Injunctive Relief: Each party acknowledges and agrees that\nConfidential Information disclosed by the other\nMUTUAL NON-DISCLOSURE AGREEMENT\n“Participant”\nAEROHIVE NETWORKS, INC.\nEXTREME NETWORKS, INC.\nAddress:\n6480 Via Del Oro\n1011 McCarthy Blvd.\nSan Jose, California 95119\nMilpitas, California 95053\n/s/ Katy Motiey\n/s/ Steve Debenham\nSignature\nSignature\nName: Katy Motiey\nName: Steve Debenham\nTitle: Chief Administrative Officer\nTitle: Vice President, General Counsel\nDate: 4/8/19\nDate: 4/8/19\nLOGO\nReturn for counter-signature to:\n[nondisclosure@aerohive.com]\nLOCATION OF JURISDICTION AND VENUE:\nN/A\nAerohive – NDA\n–\nMutual – (10-2017)\nPage2of2\nConfidential\nparty may constitute valuable property of such other party the\nunauthorized release or use of which may irreparably harm the discloser,\nfor which monetary compensation or other remedies at law may not be\nadequate. Accordingly, each party agrees that the discloser shall be\nentitled to seek injunctive relief to prevent or curtail any such\nunauthorized release or use, threatened or actual. Such injunctive relief\nshall be in addition to any other rights provided the discloser hereunder,\nor at law or in equity.\n9. General Provisions: (i) This Agreement shall neither create a joint\nventure, partnership, agency, or other form of association, nor create an\nexpress or implied license grant by either party to the other under any\npatent, trademark, copyright, trade secret or other intellectual property\nright, except for the limited use rights as necessary to carry out the\nexpress Use; (ii); Only those representations or warranties that are made\nin a final definitive agreement, when, as and if executed, will have any\nlegal effect; INFORMATION EXCHANGED UNDER THIS\nAGREEMENT IS PROVIDED ON AN “AS IS” BASIS; Neither party\nassumes any responsibility whatsoever with respect to the accuracy or\nsufficiency of such information, and the recipient understands and agrees\nthat the discloser will have no liability whatsoever to the recipient arising\nfrom the recipient’s actual use, intended or otherwise of the Confidential\nInformation except as may be otherwise agreed; (iii) The parties shall\ncomply with all applicable export laws and regulations including, but not\nlimited to, the United States Export Administration Regulations; (iv)\nThis Agreement shall not be assignable or transferable, in whole or in\npart, by either party without the prior written consent of the other party,\nexcept by act of corporate succession in the event of merger or similar\ntransaction; (v) This Agreement shall be governed, construed and\nenforced in accordance with the applicable laws of the\nState of California, without regard to conflict of laws provisions. The\nparties agree to submit to non-exclusive jurisdiction and venue in the\nCalifornia Superior Court or United States District Court, as the case may\nbe, located within the boundaries of Santa Clara County, California, USA\n(unless and to the extent such jurisdiction and venue is otherwise\nexpressly indicated below, in which case such indicated jurisdiction and\nvenue shall be the exclusive jurisdiction and venue hereunder).\nNotwithstanding the foregoing, either party may take action in any\njurisdiction to prevent disclosure of Confidential Information, or to\nenforce a judgment or other decision; (vi) Neither party has any obligation\nby virtue of this Agreement to proceed with any transaction between them,\nand any proposal, design or similar item presented to either party by the\nother shall be without obligation or restriction on the party (except as\nprovided herein); (vii) Any modifications of or amendments to this\nAgreement will not be effective, and may not be relied upon by either\nparty, unless and until reduced to writing and signed by both parties; (viii)\nThe invalidity of any provision hereof shall not affect any remaining\nprovisions; (ix) Headings set forth herein are for reference only and shall\nnot affect the meaning or construction of this Agreement; and (x) The\nparties agree, to the fullest extent permitted under law, to waive any right\nto trial or adjudication by jury of any claim, cause or action arising or\nrelating to any use or disclosure of information exchanged or made\navailable hereunder.\n10. Entire Agreement: This Agreement constitutes the entire agreement\nbetween the parties with respect to Confidential Information, and\nsupersedes all prior or contemporaneous oral or written agreements\nconcerning Confidential Information. Each person signing this Agreement\nrepresents and warrants that such person is fully authorized to execute and\nenter into this Agreement on behalf of the company named above his or\nher signature.	EX-99.(D)(2) 9 d72355dex99d2.htm EX-99.(D)(2)\nl#.LOGO\nExhibit (d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT This Mutual Non-Disclosure Agreement (“Agreement”) between Aerohive Networks, Inc., on behalf of itself and its subsidiary and affiliated entities (“Aerohive Networks”), and the other party identified below, on behalf of itself and its subsidiaries and affiliated entities (“Participant”), is effective as of April 1, 2019 (“Effective Date™).\n1. Confidential Information: “Confidential Information” means (a) the description, existence or content of a business, product or technology development opportunity and the relationship between the parties to which this Agreement relates, and (b) any and all current and future product information, roadmap, technical or financial information, forecasts, customer names, addresses, and related data, contracts, practices, services and support, procedures, and other business information including, but not limited to, software, reports, methods, strategies, plans, documents, drawings, designs, tools, models, inventions, patents, patent applications, trade secrets and any other intellectual property and proprietary information of the parties, or of any third parties that may be subject to a similar agreement, that may be disclosed between the parties under this Agreement and during its term whether in written, oral, electronic, website- based, or other form, including information acquired during facility tours, and regardless of whether it is identified as “confidential”.\n2. Purpose of Disclosure: Subject to the terms, conditions and limitations of this Agreement, the recipient may use the Confidential Information solely for the purpose(s) of exploring, implementing, conducting and/or maintaining a business, product, technology development or other opportunity of mutual interest and any ongoing relationship related thereto (the “Use”).\n3. Obligations and Duty of Care: The recipient of Confidential\nInformation agrees (i) not to disclose, communicate, or convey\nConfidential Information received hereunder, whether wholly or\npartially, to any third party, except as permitted herein;\n(ii) to use the same degree of care, but no less than a reasonable degree\nof care, to prevent any unauthorized use or disclosure of Confidential\nInformation, as the recipient uses to protect its own information that it\ndeems confidential or does not desire to disclose, publish or otherwise\nmake public; (iii) not to disclose Confidential Information to any person,\nexcept to its directors, employees, contractors, agents, affiliates,\nattorneys and consultants whom the recipient has a reasonable basis to\nbelieve have a demonstrable need to know in connection with, or who\nare directly involved in, the above-mentioned Use, who have been\ninformed of its confidential nature, and who, prior to receipt, have agreed\nto be or are, pursuant to their terms of employment or consultancy,,\nbound to protect the discloser’s rights hereunder; (iv) to be liable for any\nmisuse of Confidential Information by such persons; (v) not to use\nConfidential Information for any purpose other than reasonably related\nto the Use; and (vi) not to copy, alter, modify, disassemble, reverse\nengineer, reconstruct or decompile any of the Confidential Information\nor any portion thereof, in whole or in part, unless permitted in writing by,\nand signed by an authorized representative of, the discloser.\n4. Exceptions to Duty of Care: The obligations imposed upon the\nparties do not apply to information which : (i) is already rightfully in the\npossession of or known without a duty of confidentiality, or restriction\non disclosure or use; (ii) is or becomes publicly known at any time\nthrough no violation of this Agreement; (iii) is rightfully received by the\nrecipient from any third party without a duty of confidentiality, or\nrestriction on disclosure or use; (iv) is rightfully and independently\ndeveloped by the recipient without violating this Agreement or reliance\nupon any of the discloser’s Confidential Information; (v) is expressly\napproved in writing, by the discloser’s authorized representative, for\nrelease or other use by the recipient;\nAerohive — NDA — Mutual — (10-2017)\nPage 1 of 2 or (vi) to the extent required to be disclosed by court or administrative\norder, subpoena or other legal process or regulatory compliance\nobligation; provided that the recipient will provide the discloser with\nprompt notice prior to such disclosure and cooperate with the discloser, to\nthe extent reasonable, to respond to the required disclosure. Nothing\nherein restricts either party, absent breach of this Agreement, from\nmarketing or providing products or services that compete with products or\nservices of the other party, or to engage in independent development of\nproducts or services similar to those developed by the other party and/or\nwhich are related to the above-mentioned Use.\n5. Title: All Confidential Information is and shall remain the discloser’s\nproperty and no right, title, interest or license thereto, other than\nspecifically limited to the Use, is or may be assumed to be conveyed by\nthe discloser.\n6. Term, Termination, and Duty to Return: This Agreement expires two\n(2) years from the Effective Date. Either party may earlier terminate this\nAgreement upon thirty (30) days prior written notice at any time, with or\nwithout cause. Upon written request at any time by the discloser, whether\nprior to or following expiration or earlier termination of this Agreement,\nthe recipient shall promptly return all Confidential Information and all\ncopies thereof, in whatever form, or destroy them with written certification\nto the discloser of such destruction, except to the specific extent retention\nof such Confidential Information is required by law or regulation. The\nrecipient agrees not to disclose Confidential Information for two (2) years\nfrom the date of expiration or earlier termination of this Agreement,\nexcept for source code, which will be protected in perpetuity.\n7. Notice: The recipient agrees to notify the discloser in writing\nimmediately of any unauthorized release or misuse of Confidential\nInformation or a material breach of this Agreement of which it becomes\naware.\n8. Injunctive Relief: Each party acknowledges and agrees that\nConfidential Information disclosed by the other\nConfidential\nMUTUAL NON-DISCLOSURE AGREEMENT party may constitute valuable property of such other party the\nunauthorized release or use of which may irreparably harm the discloser,\nfor which monetary compensation or other remedies at law may not be\nadequate. Accordingly, each party agrees that the discloser shall be\nentitled to seek injunctive relief to prevent or curtail any such\nunauthorized release or use, threatened or actual. Such injunctive relief\nshall be in addition to any other rights provided the discloser hereunder,\nor at law or in equity.\n9. General Provisions: (i) This Agreement shall neither create a joint\nventure, partnership, agency, or other form of association, nor create an\nexpress or implied license grant by either party to the other under any\npatent, trademark, copyright, trade secret or other intellectual property\nright, except for the limited use rights as necessary to carry out the\nexpress Use; (ii); Only those representations or warranties that are made\nin a final definitive agreement, when, as and if executed, will have any\nlegal effect; INFORMATION EXCHANGED UNDER THIS\nAGREEMENT IS PROVIDED ON AN “AS IS” BASIS; Neither party\nassumes any responsibility whatsoever with respect to the accuracy or\nsufficiency of such information, and the recipient understands and agrees\nthat the discloser will have no liability whatsoever to the recipient arising\nfrom the recipient’s actual use, intended or otherwise of the Confidential\nInformation except as may be otherwise agreed; (iii) The parties shall\ncomply with all applicable export laws and regulations including, but not\nlimited to, the United States Export Administration Regulations; (iv)\nThis Agreement shall not be assignable or transferable, in whole or in\npart, by either party without the prior written consent of the other party,\nexcept by act of corporate succession in the event of merger or similar\ntransaction; (v) This Agreement shall be governed, construed and\nenforced in accordance with the applicable laws of the\n“Participant”\nEXTREME NETWORKS, INC.\nAddress:\n6480 Via Del Oro\nSan Jose, California 95119\n/s/ Katy Motiey\nSignature\nName: Katy Motiey\nTitle: Chief Administrative Officer\nDate: 4/8/19\n7 Return for counter-signature to:\nLOGO [nondisclosure@aerohive.com]\nAerohive — NDA — Mutual — (10-2017)\nPage 2 of 2 State of California, without regard to conflict of laws provisions. The\nparties agree to submit to non-exclusive jurisdiction and venue in the\nCalifornia Superior Court or United States District Court, as the case may\nbe, located within the boundaries of Santa Clara County, California, USA\n(unless and to the extent such jurisdiction and venue is otherwise\nexpressly indicated below, in which case such indicated jurisdiction and\nvenue shall be the exclusive jurisdiction and venue hereunder).\nNotwithstanding the foregoing, either party may take action in any\njurisdiction to prevent disclosure of Confidential Information, or to\nenforce a judgment or other decision; (vi) Neither party has any obligation\nby virtue of this Agreement to proceed with any transaction between them,\nand any proposal, design or similar item presented to either party by the\nother shall be without obligation or restriction on the party (except as\nprovided herein); (vii) Any modifications of or amendments to this\nAgreement will not be effective, and may not be relied upon by either\nparty, unless and until reduced to writing and signed by both parties; (viii)\nThe invalidity of any provision hereof shall not affect any remaining\nprovisions; (ix) Headings set forth herein are for reference only and shall\nnot affect the meaning or construction of this Agreement; and (x) The\nparties agree, to the fullest extent permitted under law, to waive any right\nto trial or adjudication by jury of any claim, cause or action arising or\nrelating to any use or disclosure of information exchanged or made\navailable hereunder.\n10. Entire Agreement: This Agreement constitutes the entire agreement\nbetween the parties with respect to Confidential Information, and\nsupersedes all prior or contemporaneous oral or written agreements\nconcerning Confidential Information. Each person signing this Agreement\nrepresents and warrants that such person is fully authorized to execute and\nenter into this Agreement on behalf of the company named above his or\nher signature.\nAEROHIVE NETWORKS, INC.\n1011 McCarthy Blvd.\nMilpitas, California 95053\n/s/ Steve Debenham\nSignature\nName: Steve Debenham\nTitle: Vice President, General Counsel\nDate: 4/8/19\nLOCATION OF JURISDICTION AND VENUE:\nN/A\nConfidential	EX-99.(D)(2) 9 d72355dex99d2.htn EX-99.(D)(2)\nExhibit (d)(2)\nALOGO\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement ("Agreement") between Aerohive Networks, Inc., on behalf of itself and its subsidiary and affiliated entities\n("Aerohive Networks"), and the other party identified below, on behalf of itself and its subsidiaries and affiliated entities ("Participant"), is effective\nas of April 1, 2019 ("Effective Date").\n1.\nConfidential Information: "Confidential Information" means (a) the description, existence or content of a business, product or technology\ndevelopment opportunity and the relationship between the parties to which this Agreement relates, and (b) any and all current\nand\nfuture\nproduct\ninformation, roadmap, technical or financial information, forecasts, customer names, addresses, and related data, contracts, practices, services and\nsupport, procedures, and other business information including, but not limited to, software, reports, methods, strategies, plans, documents, drawings,\ndesigns,\ntools,\nmodels, inventions, patents, patent applications, trade secrets and any other intellectual property and proprietary information of the\nparties, or of any third parties that may be subject to a similar agreement, that may be disclosed between the parties under this Agreement and during its\nterm\nwhether in written, oral, electronic, website- based, or other form, including information acquired during facility tours, and regardless of whether it\nis identified as "confidential"\n2. Purpose of Disclosure: Subject to the terms, conditions and limitations of this Agreement, the recipient may use the Confidential Information solely\nfor the purpose(s) of exploring, implementing, conducting and/or maintaining a business, product, technology development or other opportunity of\nmutual interest and any ongoing relationship related thereto (the "Use").\n3. Obligations and Duty of Care: The recipient of Confidential\nor (vi) to the extent required to be disclosed by court or administrative\nInformation agrees (i) not to disclose, communicate, or convey\norder, subpoena or other legal process or regulatory compliance\nConfidential Information received hereunder, whether wholly or\nobligation; provided that the recipient will provide the discloser with\npartially, to any third party, except as permitted herein;\nprompt notice prior to such disclosure and cooperate with the discloser, to\n(ii) to use the same degree of care, but no less than a reasonable degree\nthe extent reasonable, to respond to the required disclosure. Nothing\nof care, to prevent any unauthorized use or disclosure of Confidentia\nherein restricts either party, absent breach of this Agreement, from\nInformation, as the recipient uses to protect its own information that it\nmarketing or providing products or services that compete with products or\ndeems confidential or does not desire to disclose, publish or otherwise\nservices of the other party, or to engage in independent development of\nmake public; (iii) not to disclose Confidential Information to any person,\nproducts or services similar to those developed by the other party and/or\nexcept to its directors, employees, contractors, agents, affiliates,\nwhich are related to the above-mentioned Use.\nattorneys and consultants whom the recipient has a reasonable basis to\nbelieve have a demonstrable need to know in connection with, or who\n5. Title: All Confidential Information is and shall remain the discloser's\nare directly involved in, the above-mentioned Use, who have been\nproperty and no right, title, interest or license thereto, other than\ninformed of its confidential nature, and who, prior to receipt, have agreed\nspecifically limited to the Use, is or may be assumed to be conveyed by\nto be or are, pursuant to their terms of employment or consultancy,,\nthe discloser.\nbound to protect the discloser's rights hereunder; (iv) to be liable for any\nmisuse of Confidential Information by such persons; (v) not to use\n6. Term, Termination, and Duty. to Return: This Agreement expires two\nConfidential Information for any purpose other than reasonably related\n(2) years from the Effective Date. Either party may earlier terminate this\nto the Use; and (vi) not to copy, alter, modify, disassemble, reverse\nAgreement upon thirty (30) days prior written notice at any time, with or\nengineer, reconstruct or decompile any of the Confidential Information\nwithout cause. Upon written request at any time by the discloser, whether\nor any portion thereof in whole or in part, unless permitted in writing by,\nprior to or following expiration or earlier termination of this Agreement,\nand signed by an authorized representative of, the discloser.\nthe recipient shall promptly return all Confidential Information and all\ncopies thereof, in whatever form, or destroy them with written certification\n4. Exceptions to Duty. of Care: The obligations imposed upon the\nto the discloser of such destruction, except to the specific extent retention\nparties do not apply to information which (i) is already rightfully in the\nof such Confidential Information is required by law or regulation. The\npossession of or known without a duty of confidentiality, or restriction\nrecipient agrees not to disclose Confidential Information for two (2) years\non disclosure or use; (ii) is or becomes publicly known at any time\nfrom the date of expiration or earlier termination of this Agreement,\nthrough no violation of this Agreement; (iii) is rightfully received by the\nexcept for source code, which will be protected in perpetuity.\nrecipient from any third party without a duty of confidentiality, or\nrestriction on disclosure or use; (iv) is rightfully and independently\n7. Notice: The recipient agrees to notify the discloser in writing\ndeveloped by the recipient without violating this Agreement or reliance\nimmediately of any unauthorized release or misuse of Confidential\nupon any of the discloser's Confidential Information; (v) is expressly\nInformation or a material breach of this Agreement of which it becomes\napproved in writing, by the discloser's authorized representative, for\naware.\nrelease or other use by the recipient;\n8. Injunctive Relief: Each party acknowledges and agrees that\nConfidential Information disclosed by the other\nAerohive NDA Mutual (10-2017)\nPage 1 of 2\nConfidential\nMUTUAL NON-DISCLOSURE AGREEMENT\nparty may constitute valuable property of such other party the\nState of California, without regard to conflict of laws provisions. The\nunauthorized release or use of which may irreparably harm the discloser,\nparties agree to submit to non-exclusive jurisdiction and venue in the\nfor which monetary compensation or other remedies at law may not be\nCalifornia Superior Court or United States District Court, as the case may\nadequate. Accordingly, each party agrees that the discloser shall be\nbe, located within the boundaries of Santa Clara County, California, USA\nentitled to seek injunctive relief to prevent or curtail any such\n(unless and to the extent such jurisdiction and venue is otherwise\nunauthorized release or use, threatened or actual. Such injunctive relief\nexpressly indicated below, in which case such indicated jurisdiction and\nshall be in addition to any other rights provided the discloser hereunder,\nvenue shall be the exclusive jurisdiction and venue hereunder).\nor at law or in equity.\nNotwithstanding the foregoing, either party may take action in any\njurisdiction to prevent disclosure of Confidential Information, or to\n9. General Provisions: (i) This Agreement shall neither create a joint\nenforce a judgment or other decision; (vi) Neither party has any obligation\nventure, partnership, agency, or other form of association, nor create an\nby virtue of this Agreement to proceed with any transaction between them,\nexpress or implied license grant by either party to the other under any\nand any proposal, design or similar item presented to either party by the\npatent, trademark, copyright, trade secret or other intellectual property\nother shall be without obligation or restriction on the party (except as\nright, except for the limited use rights as necessary to carry out the\nprovided herein); (vii) Any modifications of or amendments to this\nexpress Use; (ii); Only those representations or warranties that are made\nAgreement will not be effective, and may not be relied upon by either\nin a final definitive agreement, when, as and if executed, will have any\nparty, unless and until reduced to writing and signed by both parties; (viii)\nlegal effect; INFORMATION EXCHANGED UNDER THIS\nThe invalidity of any provision hereof shall not affect any remaining\nAGREEMENT IS PROVIDED ON AN "AS IS" BASIS; Neither party\nprovisions; (ix) Headings set forth herein are for reference only and shall\nassumes any responsibility whatsoever with respect to the accuracy or\nnot affect the meaning or construction of this Agreement; and (x) The\nsufficiency of such information, and the recipient understands and agrees\nparties agree, to the fullest extent permitted under law, to waive any right\nthat the discloser will have no liability whatsoever to the recipient arising\nto trial or adjudication by jury of any claim, cause or action arising or\nfrom the recipient's actual use, intended or otherwise of the Confidential\nrelating to any use or disclosure of information exchanged or made\nInformation except as may be otherwise agreed; (iii) The parties shall\navailable hereunder.\ncomply with all applicable export laws and regulations including, but not\nlimited to, the United States Export Administration Regulations; (iv)\n10. Entire Agreement: This Agreement constitutes the entire agreement\nThis Agreement shall not be assignable or transferable, in whole or in\nbetween the parties with respect to Confidential Information, and\npart, by either party without the prior written consent of the other party,\nsupersedes all prior or contemporaneous oral or written agreements\nexcept by act of corporate succession in the event of merger or similar\nconcerning Confidential Information. Each person signing this Agreement\ntransaction; (v) This Agreement shall be governed, construed and\nrepresents and warrants that such person is fully authorized to execute and\nenforced in accordance with the applicable laws of the\nenter into this Agreement on behalf of the company named above his or\nher signature.\n"Participant"\nAEROHIVE NETWORKS, INC.\nEXTREME NETWORKS, INC.\nAddress:\n6480 Via Del Oro\n1011 McCarthy Blvd.\nSan Jose, California 95119\nMilpitas, California 95053\n/s/ Katy Motiey\n/s/ Steve Debenham\nSignature\nSignature\nName: Katy Motiey\nName: Steve Debenham\nTitle: Chief Administrative Officer\nTitle: Vice President, General Counsel\nDate: 4/8/19\nDate: 4/8/19\nReturn for counter-signature to:\nLOGO [nondisclosure@aerohive.com]\nLOCATION OF JURISDICTION AND VENUE:\nN/A\nAerohive NDA Mutual (10-2017)\nPage 2 of 2\nConfidential	EX-99.(D)(2) 9 d72355dex99d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nLOGO\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (“Agreement”) between Aerohive Networks, Inc., on behalf of itself and its subsidiary and affiliated entities\n(“Aerohive Networks”), and the other party identified below, on behalf of itself and its subsidiaries and affiliated entities (“Participant”), is effective\nas of April 1, 2019 (“Effective Date”).\n1. Confidential Information: “Confidential Information” means (a) the description, existence or content of a business, product or technology\ndevelopment opportunity and the relationship between the parties to which this Agreement relates, and (b) any and all current and future product\ninformation, roadmap, technical or financial information, forecasts, customer names, addresses, and related data, contracts, practices, services and\nsupport, procedures, and other business information including, but not limited to, software, reports, methods, strategies, plans, documents, drawings,\ndesigns, tools, models, inventions, patents, patent applications, trade secrets and any other intellectual property and proprietary information of the\nparties, or of any third parties that may be subject to a similar agreement, that may be disclosed between the parties under this Agreement and during its\nterm whether in written, oral, electronic, website- based, or other form, including information acquired during facility tours, and regardless of whether it\nis identified as “confidential”.\n2. Purpose of Disclosure: Subject to the terms, conditions and limitations of this Agreement, the recipient may use the Confidential Information solely\nfor the purpose(s) of exploring, implementing, conducting and/or maintaining a business, product, technology development or other opportunity of\nmutual interest and any ongoing relationship related thereto (the “Use”).\nAerohive – NDA\n–\nMutual – (10-2017)\nPage1of2\nConfidential\n3. Obligations and Duty of Care: The recipient of Confidential\nInformation agrees (i) not to disclose, communicate, or convey\nConfidential Information received hereunder, whether wholly or\npartially, to any third party, except as permitted herein;\n(ii) to use the same degree of care, but no less than a reasonable degree\nof care, to prevent any unauthorized use or disclosure of Confidential\nInformation, as the recipient uses to protect its own information that it\ndeems confidential or does not desire to disclose, publish or otherwise\nmake public; (iii) not to disclose Confidential Information to any person,\nexcept to its directors, employees, contractors, agents, affiliates,\nattorneys and consultants whom the recipient has a reasonable basis to\nbelieve have a demonstrable need to know in connection with, or who\nare directly involved in, the above-mentioned Use, who have been\ninformed of its confidential nature, and who, prior to receipt, have agreed\nto be or are, pursuant to their terms of employment or consultancy,,\nbound to protect the discloser’s rights hereunder; (iv) to be liable for any\nmisuse of Confidential Information by such persons; (v) not to use\nConfidential Information for any purpose other than reasonably related\nto the Use; and (vi) not to copy, alter, modify, disassemble, reverse\nengineer, reconstruct or decompile any of the Confidential Information\nor any portion thereof, in whole or in part, unless permitted in writing by,\nand signed by an authorized representative of, the discloser.\n4. Exceptions to Duty of Care: The obligations imposed upon the\nparties do not apply to information which : (i) is already rightfully in the\npossession of or known without a duty of confidentiality, or restriction\non disclosure or use; (ii) is or becomes publicly known at any time\nthrough no violation of this Agreement; (iii) is rightfully received by the\nrecipient from any third party without a duty of confidentiality, or\nrestriction on disclosure or use; (iv) is rightfully and independently\ndeveloped by the recipient without violating this Agreement or reliance\nupon any of the discloser’s Confidential Information; (v) is expressly\napproved in writing, by the discloser’s authorized representative, for\nrelease or other use by the recipient;\nor (vi) to the extent required to be disclosed by court or administrative\norder, subpoena or other legal process or regulatory compliance\nobligation; provided that the recipient will provide the discloser with\nprompt notice prior to such disclosure and cooperate with the discloser, to\nthe extent reasonable, to respond to the required disclosure. Nothing\nherein restricts either party, absent breach of this Agreement, from\nmarketing or providing products or services that compete with products or\nservices of the other party, or to engage in independent development of\nproducts or services similar to those developed by the other party and/or\nwhich are related to the above-mentioned Use.\n5. Title: All Confidential Information is and shall remain the discloser’s\nproperty and no right, title, interest or license thereto, other than\nspecifically limited to the Use, is or may be assumed to be conveyed by\nthe discloser.\n6. Term, Termination, and Duty to Return: This Agreement expires two\n(2) years from the Effective Date. Either party may earlier terminate this\nAgreement upon thirty (30) days prior written notice at any time, with or\nwithout cause. Upon written request at any time by the discloser, whether\nprior to or following expiration or earlier termination of this Agreement,\nthe recipient shall promptly return all Confidential Information and all\ncopies thereof, in whatever form, or destroy them with written certification\nto the discloser of such destruction, except to the specific extent retention\nof such Confidential Information is required by law or regulation. The\nrecipient agrees not to disclose Confidential Information for two (2) years\nfrom the date of expiration or earlier termination of this Agreement,\nexcept for source code, which will be protected in perpetuity.\n7. Notice: The recipient agrees to notify the discloser in writing\nimmediately of any unauthorized release or misuse of Confidential\nInformation or a material breach of this Agreement of which it becomes\naware.\n8. Injunctive Relief: Each party acknowledges and agrees that\nConfidential Information disclosed by the other\nMUTUAL NON-DISCLOSURE AGREEMENT\n“Participant”\nAEROHIVE NETWORKS, INC.\nEXTREME NETWORKS, INC.\nAddress:\n6480 Via Del Oro\n1011 McCarthy Blvd.\nSan Jose, California 95119\nMilpitas, California 95053\n/s/ Katy Motiey\n/s/ Steve Debenham\nSignature\nSignature\nName: Katy Motiey\nName: Steve Debenham\nTitle: Chief Administrative Officer\nTitle: Vice President, General Counsel\nDate: 4/8/19\nDate: 4/8/19\nLOGO\nReturn for counter-signature to:\n[nondisclosure@aerohive.com]\nLOCATION OF JURISDICTION AND VENUE:\nN/A\nAerohive – NDA\n–\nMutual – (10-2017)\nPage2of2\nConfidential\nparty may constitute valuable property of such other party the\nunauthorized release or use of which may irreparably harm the discloser,\nfor which monetary compensation or other remedies at law may not be\nadequate. Accordingly, each party agrees that the discloser shall be\nentitled to seek injunctive relief to prevent or curtail any such\nunauthorized release or use, threatened or actual. Such injunctive relief\nshall be in addition to any other rights provided the discloser hereunder,\nor at law or in equity.\n9. General Provisions: (i) This Agreement shall neither create a joint\nventure, partnership, agency, or other form of association, nor create an\nexpress or implied license grant by either party to the other under any\npatent, trademark, copyright, trade secret or other intellectual property\nright, except for the limited use rights as necessary to carry out the\nexpress Use; (ii); Only those representations or warranties that are made\nin a final definitive agreement, when, as and if executed, will have any\nlegal effect; INFORMATION EXCHANGED UNDER THIS\nAGREEMENT IS PROVIDED ON AN “AS IS” BASIS; Neither party\nassumes any responsibility whatsoever with respect to the accuracy or\nsufficiency of such information, and the recipient understands and agrees\nthat the discloser will have no liability whatsoever to the recipient arising\nfrom the recipient’s actual use, intended or otherwise of the Confidential\nInformation except as may be otherwise agreed; (iii) The parties shall\ncomply with all applicable export laws and regulations including, but not\nlimited to, the United States Export Administration Regulations; (iv)\nThis Agreement shall not be assignable or transferable, in whole or in\npart, by either party without the prior written consent of the other party,\nexcept by act of corporate succession in the event of merger or similar\ntransaction; (v) This Agreement shall be governed, construed and\nenforced in accordance with the applicable laws of the\nState of California, without regard to conflict of laws provisions. The\nparties agree to submit to non-exclusive jurisdiction and venue in the\nCalifornia Superior Court or United States District Court, as the case may\nbe, located within the boundaries of Santa Clara County, California, USA\n(unless and to the extent such jurisdiction and venue is otherwise\nexpressly indicated below, in which case such indicated jurisdiction and\nvenue shall be the exclusive jurisdiction and venue hereunder).\nNotwithstanding the foregoing, either party may take action in any\njurisdiction to prevent disclosure of Confidential Information, or to\nenforce a judgment or other decision; (vi) Neither party has any obligation\nby virtue of this Agreement to proceed with any transaction between them,\nand any proposal, design or similar item presented to either party by the\nother shall be without obligation or restriction on the party (except as\nprovided herein); (vii) Any modifications of or amendments to this\nAgreement will not be effective, and may not be relied upon by either\nparty, unless and until reduced to writing and signed by both parties; (viii)\nThe invalidity of any provision hereof shall not affect any remaining\nprovisions; (ix) Headings set forth herein are for reference only and shall\nnot affect the meaning or construction of this Agreement; and (x) The\nparties agree, to the fullest extent permitted under law, to waive any right\nto trial or adjudication by jury of any claim, cause or action arising or\nrelating to any use or disclosure of information exchanged or made\navailable hereunder.\n10. Entire Agreement: This Agreement constitutes the entire agreement\nbetween the parties with respect to Confidential Information, and\nsupersedes all prior or contemporaneous oral or written agreements\nconcerning Confidential Information. Each person signing this Agreement\nrepresents and warrants that such person is fully authorized to execute and\nenter into this Agreement on behalf of the company named above his or\nher signature.
29296372f4a9b095ae40f70fd5de3728.pdf	effective_date jurisdiction party term	EXHIBIT A\nMUTUAL NON-DISCLOSURE AGREEMENT\nOCTOBER 11, 2007\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (“Agreement”) is made this 11th day of October, 2007, by SunCoast Holdings, Inc., and all of\nits subsidiaries, affiliates and associations, with its principal place of business at 401 East Las Olas Blvd, Ft. Lauderdale, Florida, referred to\nhereafter as “Company,” and SunTrust Banks, Inc., and all of its subsidiaries, affiliates and associations, with its principal place of business at\n303 Peachtree Street, Suite 700 in Atlanta, GA, referred to hereafter as “SunTrust.”\nWHEREAS, Company wishes to evaluate a potential business opportunity with SunTrust involving SunTrust’s subsidiary Madison\nInsurance Company (hereinafter, the “Opportunity”) and, in connection therewith, the parties will be exchanging Confidential Information (as\nhereafter defined); and\nWHEREAS, the parties have agreed to provide certain Confidential Information to each other and desire to protect that Confidential\nInformation and preserve the confidential and proprietary nature of the Confidential Information and the prospective Opportunity. The providing\nparty is referred to in this Agreement as the “Disclosing Party,” while the receiving party is referred to as the “Recipient.”\nNOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants, promises and agreements contained herein,\nincluding the agreement to provide Confidential Information to each other and to discuss a prospective Opportunity and for other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Recipient\nhereby agrees as follows:\nI.\n“Confidential Information” as used in this Agreement shall mean any and all materials, documents and information, whether oral or in\nwritten or other tangible medium or form, regarding the Disclosing Party’s business or prospective business opportunities and plans, assets,\noperations, finances, employees, products and prospective products, and technology including, without limitation, any and all technical and\nnon-technical information, including patent, copyright, trade secret and proprietary information, techniques, sketches, ideas, schematics,\nconcepts, work in process, technology, models, inventions, material data, business methods, business policies, research and/or development,\ndrawings, know-how, processes, apparatus, equipment, algorithms, software programs, source code, object code, software source\ndocuments, and formulae related to the current, future and proposed products and services of the party. “Confidential Information” also\nincludes, without limitation, the Disclosing Party’s information concerning research, experimental work, development, design details and\nspecifications, engineering, financial information, procurement requirements, customer and supplier lists, user information, personnel\nmatters, pricing information, business\nMUTUAL NON-DISCLOSURE AGREEMENT — PAGE 1\nforecasts, sales and merchandising and marketing plans and information related to the current, future and proposed products and services of\nthe Disclosing Party.\nII. (a) The Recipient acknowledges the competitive value and confidential and proprietary nature of the Disclosing Party’s Confidential\nInformation and the damage that could result to the Disclosing Party if any part of the Confidential Information or the fact that the\nDisclosing Party and Recipient are talking about a prospective Opportunity and nature of such Opportunity were disclosed to any third\nparty or if the Recipient uses the Disclosing Party’s Confidential Information to directly or indirectly compete with the Disclosing Party or\nfor any other reason. Therefore, the Recipient agrees that neither it nor its Representatives (as hereinafter defined) will, directly or\nindirectly, (i) use the Disclosing Party’s Confidential Information in any way other than for the purpose of evaluating and proposing a\npossible business Opportunity with the Disclosing Party and/or (ii) disclose to any person, business or entity all or any part of the\nDisclosing Party’s Confidential Information, except as herein provided, and/or (iii) disclose to any person, business or entity either the fact\nthat the Disclosing Party’s Confidential Information has been made available or the fact that discussions or negotiations are taking place\nconcerning a possible business Opportunity between the parties or any of the terms, conditions or other facts with respect to any possible\nOpportunities, including the status thereof; except that each party may make such disclosure if, upon the advice of counsel, such disclosure\nmust be made in order to comply with applicable law, regulation or judicial process.\n(b) The Recipient shall be entitled to disclose the Disclosing Party’s Confidential Information to only those employees, officers, agents and\nadvisers of the Recipient (collectively, “Representatives”) necessary for evaluating the Opportunity, provided that the Recipient advises\neach such Representative of the obligations contained herein and that by receiving such information the Representatives are agreeing to be\nbound by this Agreement. The Recipient shall be responsible for any breach of this Agreement by it and/or any Representative and shall\nindemnify and hold the Disclosing Party harmless from any such breach.\nIII. The Recipient understands and agrees for itself and its Representatives that neither the Disclosing Party nor any of its affiliates, agents,\nadvisors or representatives (a) have made or make any representation or warranty, expressed or implied, as to the accuracy or completeness\nof the Confidential Information or (b) shall have any liability whatsoever to the Recipient or its Representatives relating to or resulting from\nthe use of the Disclosing Party’s Confidential Information or any errors therein or omissions therefrom. The only information that will have\nany legal effect will be specifically represented in a definitive written agreement and in no event will such definitive written agreement\ncontain any representation as to any projections.\nMUTUAL NON-DISCLOSURE AGREEMENT — PAGE 2\nIV. No right or license to use the Disclosing Party’s Confidential Information or other interest therein is hereby granted to the Recipient other\nthan for the purpose of evaluating the Opportunity.\nV. The obligations of secrecy and non-disclosure set forth herein shall not apply to: (a) information which at the time of disclosure to the\nRecipient is in the public domain; (b) information which after disclosure to the Recipient becomes generally available to the public by\npublication or otherwise through no fault of the Recipient or any of its Representatives; (c) information which the Recipient or any of its\nRepresentative can demonstrate was already in the possession of the Recipient or any such Representative and which was not acquired by\nthe Recipient or any such Representative, as the case may be, directly or indirectly from the Disclosing Party; (d) subject to Paragraph 6\nbelow, information the Recipient is required by court order, injunction, writ, law, rule or regulation to disclose; or (e) information which\nthe Recipient can demonstrate through competent written evidence was independently developed by or for the Recipient without use of or\nreliance on the Disclosing Party’s Confidential Information.\nVI. In the event that the Recipient and/or its Representatives are requested or required to disclose any of the Disclosing Party’s Confidential\nInformation in an investigatory, legal, regulatory or administrative proceeding, the Recipient shall, unless legally prohibited therefrom,\nprovide the Disclosing Party with prompt written notice thereof so that the Disclosing Party may, in its discretion, seek a protective order\nor other appropriate remedy. The Recipient agrees to consult and cooperate with the Disclosing Party in seeking a protective order or other\nappropriate remedy. The Recipient may disclose only that portion of the Confidential Information that it is legally required to disclose.\nVII. The Recipient further agrees that, without the prior written approval of the Disclosing Party, its Representatives who have been provided\nConfidential Information will not, directly or indirectly for a period of twelve (12) months from the date hereof, solicit for employment\nany employees of the Disclosing Party with whom they have contact or about whom they learn in connection with their review of the\nOpportunity. Notwithstanding the foregoing, Recipient’s Representatives may solicit or hire any person: (a) who responds to a public\nadvertisement or otherwise contacts Recipient on his or her own initiative, without any direct or indirect solicitation by Recipient, (b) who\nhas been brought to Recipient’s attention by an agency, search firm or other independent third party, or (c) with whom Recipient initiates\ndiscussions regarding employment after such person is no longer an employee of the Disclosing Party.\nVIII. The Recipient shall return to the Disclosing Party upon demand any and all Confidential Information entrusted to it by the Disclosing Party\npursuant to this Agreement (including any and all copies, abstracts, compilations or analyses thereof and memoranda related thereto) or\nshall destroy all such Confidential Information and provide a certificate of destruction to the Disclosing Party signed\nMUTUAL NON-DISCLOSURE AGREEMENT — PAGE 3\nby the Recipient. The Recipient further agrees that neither it nor any Representative will copy in whole or in part any such Confidential\nInformation without the written consent of the Disclosing Party, except for the sole use of its Representatives in carrying out their\nevaluation of a possible business Opportunity with the Disclosing Party.\nIX. The obligation of secrecy and non-disclosure set forth in this Agreement shall remain in effect for a period of one year from the date\nhereof.\nX. This Agreement and the respective rights and obligations of the parties hereto shall be governed by and determined in accordance with the\nlaws of the State of Florida, without giving effect to its conflict of laws, principles or rules.\nXI. The Recipient agrees that money damages would not be a sufficient remedy for any breach of this Agreement by the Recipient or its\nRepresentatives and that in addition to all other remedies which may be available, the Disclosing Party may be entitled to specific\nperformance and injunctive or other equitable relief as a remedy for such breach and the Recipient further agrees to waive and to use its\nbest efforts to cause its Representatives to waive any requirement for securing or posting of any bond in connection with such remedy.\nXII. This Agreement, which includes all attached exhibits referenced herein, constitutes the entire agreement between Company and SunTrust\nwith respect to the subject matter hereof, and supersedes all proposals, oral or written, and all other communications between the parties\nwith respect to such subject matter.\nXIII. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the\nextent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement, and any such prohibition or\nunenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction. To the extent\npermitted by law, the parties waive any provision of law which renders any such provision prohibited or unenforceable in any respect.\nIN WITNESS WHEREOF, this Agreement has been executed by the duly authorized officers of the parties as of the day and year written\nbelow.\nSUNCOAST HOLDINGS, INC.\nSUNTRUST BANKS, INC.\nBy: /s/ Steven M. Mariano\nBy: /s/ Daniel Baltz\nName: Steven M. Mariano\nName: Daniel Baltz\nTitle: Chief Executive Officer\nTitle: Group V.P., Insurance Risk Management\nDate: 10-11-07\nDate: 10-15-07\nMUTUAL NON-DISCLOSURE AGREEMENT — PAGE 4	EXHIBIT A\nMUTUAL NON-DISCLOSURE AGREEMENT\nOCTOBER 11, 2007\nMUTUAL NON-DISCL.OSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (“Agreement”) is made this 11th day of October, 2007, by SunCoast Holdings, Inc., and all of\nits subsidiaries, affiliates and associations, with its principal place of business at 401 East Las Olas Blvd, Ft. Lauderdale, Florida, referred to\nhereafter as “Company,” and SunTrust Banks, Inc., and all of its subsidiaries, affiliates and associations, with its principal place of business at\n303 Peachtree Street, Suite 700 in Atlanta, GA, referred to hereafter as “SunTrust.”\nWHEREAS, Company wishes to evaluate a potential business opportunity with SunTrust involving SunTrust’s subsidiary Madison\nInsurance Company (hereinafter, the “Opportunity”) and, in connection therewith, the parties will be exchanging Confidential Information (as\nhereafter defined); and\nWHEREAS, the parties have agreed to provide certain Confidential Information to each other and desire to protect that Confidential\nInformation and preserve the confidential and proprietary nature of the Confidential Information and the prospective Opportunity. The providing\nparty is referred to in this Agreement as the “Disclosing Party,” while the receiving party is referred to as the “Recipient.”\nNOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants, promises and agreements contained herein,\nincluding the agreement to provide Confidential Information to each other and to discuss a prospective Opportunity and for other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Recipient\nhereby agrees as follows:\nI.  “Confidential Information” as used in this Agreement shall mean any and all materials, documents and information, whether oral or in\nwritten or other tangible medium or form, regarding the Disclosing Party’s business or prospective business opportunities and plans, assets,\noperations, finances, employees, products and prospective products, and technology including, without limitation, any and all technical and\nnon-technical information, including patent, copyright, trade secret and proprietary information, techniques, sketches, ideas, schematics,\nconcepts, work in process, technology, models, inventions, material data, business methods, business policies, research and/or development,\ndrawings, know-how, processes, apparatus, equipment, algorithms, software programs, source code, object code, software source\ndocuments, and formulae related to the current, future and proposed products and services of the party. “Confidential Information” also\nincludes, without limitation, the Disclosing Party’s information concerning research, experimental work, development, design details and\nspecifications, engineering, financial information, procurement requirements, customer and supplier lists, user information, personnel\nmatters, pricing information, business\nMUTUAL NON-DISCLOSURE AGREEMENT — PAGE 1\nII.\nIII. forecasts, sales and merchandising and marketing plans and information related to the current, future and proposed products and services of\nthe Disclosing Party.\n(a) The Recipient acknowledges the competitive value and confidential and proprietary nature of the Disclosing Party’s Confidential\nInformation and the damage that could result to the Disclosing Party if any part of the Confidential Information or the fact that the\nDisclosing Party and Recipient are talking about a prospective Opportunity and nature of such Opportunity were disclosed to any third\nparty or if the Recipient uses the Disclosing Party’s Confidential Information to directly or indirectly compete with the Disclosing Party or\nfor any other reason. Therefore, the Recipient agrees that neither it nor its Representatives (as hereinafter defined) will, directly or\nindirectly, (i) use the Disclosing Party’s Confidential Information in any way other than for the purpose of evaluating and proposing a\npossible business Opportunity with the Disclosing Party and/or (ii) disclose to any person, business or entity all or any part of the\nDisclosing Party’s Confidential Information, except as herein provided, and/or (iii) disclose to any person, business or entity either the fact\nthat the Disclosing Party’s Confidential Information has been made available or the fact that discussions or negotiations are taking place\nconcerning a possible business Opportunity between the parties or any of the terms, conditions or other facts with respect to any possible\nOpportunities, including the status thereof; except that each party may make such disclosure if, upon the advice of counsel, such disclosure\nmust be made in order to comply with applicable law, regulation or judicial process.\n(b) The Recipient shall be entitled to disclose the Disclosing Party’s Confidential Information to only those employees, officers, agents and\nadvisers of the Recipient (collectively, “Representatives”) necessary for evaluating the Opportunity, provided that the Recipient advises\neach such Representative of the obligations contained herein and that by receiving such information the Representatives are agreeing to be\nbound by this Agreement. The Recipient shall be responsible for any breach of this Agreement by it and/or any Representative and shall\nindemnify and hold the Disclosing Party harmless from any such breach.\nThe Recipient understands and agrees for itself and its Representatives that neither the Disclosing Party nor any of its affiliates, agents,\nadvisors or representatives (a) have made or make any representation or warranty, expressed or implied, as to the accuracy or completeness\nof the Confidential Information or (b) shall have any liability whatsoever to the Recipient or its Representatives relating to or resulting from\nthe use of the Disclosing Party’s Confidential Information or any errors therein or omissions therefrom. The only information that will have\nany legal effect will be specifically represented in a definitive written agreement and in no event will such definitive written agreement\ncontain any representation as to any projections.\nMUTUAL NON-DISCLOSURE AGREEMENT — PAGE 2\nIv.\nVL\nVIL\nVIIL.\nNo right or license to use the Disclosing Party’s Confidential Information or other interest therein is hereby granted to the Recipient other\nthan for the purpose of evaluating the Opportunity.\nThe obligations of secrecy and non-disclosure set forth herein shall not apply to: (a) information which at the time of disclosure to the\nRecipient is in the public domain; (b) information which after disclosure to the Recipient becomes generally available to the public by\npublication or otherwise through no fault of the Recipient or any of its Representatives; (c) information which the Recipient or any of its\nRepresentative can demonstrate was already in the possession of the Recipient or any such Representative and which was not acquired by\nthe Recipient or any such Representative, as the case may be, directly or indirectly from the Disclosing Party; (d) subject to Paragraph 6\nbelow, information the Recipient is required by court order, injunction, writ, law, rule or regulation to disclose; or (e) information which\nthe Recipient can demonstrate through competent written evidence was independently developed by or for the Recipient without use of or\nreliance on the Disclosing Party’s Confidential Information.\nIn the event that the Recipient and/or its Representatives are requested or required to disclose any of the Disclosing Party’s Confidential\nInformation in an investigatory, legal, regulatory or administrative proceeding, the Recipient shall, unless legally prohibited therefrom,\nprovide the Disclosing Party with prompt written notice thereof so that the Disclosing Party may, in its discretion, seek a protective order\nor other appropriate remedy. The Recipient agrees to consult and cooperate with the Disclosing Party in seeking a protective order or other\nappropriate remedy. The Recipient may disclose only that portion of the Confidential Information that it is legally required to disclose.\nThe Recipient further agrees that, without the prior written approval of the Disclosing Party, its Representatives who have been provided\nConfidential Information will not, directly or indirectly for a period of twelve (12) months from the date hereof, solicit for employment\nany employees of the Disclosing Party with whom they have contact or about whom they learn in connection with their review of the\nOpportunity. Notwithstanding the foregoing, Recipient’s Representatives may solicit or hire any person: (a) who responds to a public\nadvertisement or otherwise contacts Recipient on his or her own initiative, without any direct or indirect solicitation by Recipient, (b) who\nhas been brought to Recipient’s attention by an agency, search firm or other independent third party, or (c) with whom Recipient initiates\ndiscussions regarding employment after such person is no longer an employee of the Disclosing Party.\nThe Recipient shall return to the Disclosing Party upon demand any and all Confidential Information entrusted to it by the Disclosing Party\npursuant to this Agreement (including any and all copies, abstracts, compilations or analyses thereof and memoranda related thereto) or\nshall destroy all such Confidential Information and provide a certificate of destruction to the Disclosing Party signed\nMUTUAL NON-DISCLOSURE AGREEMENT — PAGE 3\nby the Recipient. The Recipient further agrees that neither it nor any Representative will copy in whole or in part any such Confidential\nInformation without the written consent of the Disclosing Party, except for the sole use of its Representatives in carrying out their\nevaluation of a possible business Opportunity with the Disclosing Party.\nIX. The obligation of secrecy and non-disclosure set forth in this Agreement shall remain in effect for a period of one year from the date\nhereof.\nX.  This Agreement and the respective rights and obligations of the parties hereto shall be governed by and determined in accordance with the\nlaws of the State of Florida, without giving effect to its conflict of laws, principles or rules.\nXI.  The Recipient agrees that money damages would not be a sufficient remedy for any breach of this Agreement by the Recipient or its\nRepresentatives and that in addition to all other remedies which may be available, the Disclosing Party may be entitled to specific\nperformance and injunctive or other equitable relief as a remedy for such breach and the Recipient further agrees to waive and to use its\nbest efforts to cause its Representatives to waive any requirement for securing or posting of any bond in connection with such remedy.\nXII. This Agreement, which includes all attached exhibits referenced herein, constitutes the entire agreement between Company and SunTrust\nwith respect to the subject matter hereof, and supersedes all proposals, oral or written, and all other communications between the parties\nwith respect to such subject matter.\nXIII. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the\nextent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement, and any such prohibition or\nunenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction. To the extent\npermitted by law, the parties waive any provision of law which renders any such provision prohibited or unenforceable in any respect.\nIN WITNESS WHEREQF, this Agreement has been executed by the duly authorized officers of the parties as of the day and year written\nbelow.\nSUNCOAST HOLDINGS, INC. SUNTRUST BANKS, INC.\nBy:  /s/ Steven M. Mariano By: /s/ Daniel Baltz\nName: Steven M. Mariano Name: Daniel Baltz\nTitle: Chief Executive Officer Title:  Group V.P,, Insurance Risk Management\nDate: 10-11-07 Date: 10-15-07\nMUTUAL NON-DISCLOSURE AGREEMENT — PAGE 4	EXHIBIT A\nMUTUAL NON-DISCLOSURE AGREEMENT\nOCTOBER 11, 2007\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT ("Agreement") is made this 11th day of October, 2007, by SunCoast Holdings, Inc., and all of\nits subsidiaries, affiliates and associations, with its principal place of business at 401 East Las Olas Blvd, Ft. Lauderdale, Florida, referred to\nhereafter as "Company," and SunTrust Banks, Inc., and all of its subsidiaries, affiliates and associations, with its principal place of business at\n303 Peachtree Street, Suite 700 in Atlanta, GA, referred to hereafter as "SunTrust."\nWHEREAS, Company wishes to evaluate a potential business opportunity with SunTrust involving SunTrust's subsidiary Madison\nInsurance\nCompany (hereinafter, the "Opportunity") and, in connection therewith, the parties will be exchanging Confidential Information\n(as\nhereafter defined); and\nWHEREAS, the parties have agreed to provide certain Confidential Information to each other and desire to protect that Confidential\nInformation and preserve the confidential and proprietary nature of the Confidential Information and the prospective Opportunity. The providing\nparty is referred to in this Agreement as the "Disclosing Party," while the receiving party is referred to as the "Recipient."\nNOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants, promises and agreements contained herein,\nincluding the agreement to provide Confidential Information to each other and to discuss a prospective Opportunity and for other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Recipient\nhereby agrees as follows:\nI.\n"Confidential Information" as used in this Agreement shall mean any and all materials, documents and information, whether oral or in\nwritten or other tangible medium or form, regarding the Disclosing Party's business or prospective business opportunities and plans, assets,\noperations, finances, employees, products and prospective products, and technology including, without limitation, any and all technical and\nnon-technical information, including patent, copyright, trade secret and proprietary information, techniques, sketches, ideas, schematics,\nconcepts, work in process, technology, models, inventions, material data, business methods, business policies, research and/or development,\ndrawings, know-how, processes, apparatus, equipment, algorithms, software programs, source code, object code, software source\ndocuments, and formulae related to the current, future and proposed products and services of the party. "Confidential Information" also\nincludes, without limitation, the Disclosing Party's information concerning research, experimental work, development, design details and\nspecifications, engineering, financial information, procurement requirements, customer and supplier lists, user information, personnel\nmatters, pricing information, business\nMUTUAL NON-DISCLOSURE AGREEMENT - PAGE 1\nforecasts, sales and merchandising and marketing plans and information related to the current, future and proposed products and services of\nthe Disclosing Party.\nII.\n(a) The Recipient acknowledges the competitive value and confidential and proprietary nature of the Disclosing Party's Confidential\nInformation and the damage that could result to the Disclosing Party if any part of the Confidential Information or the fact that the\nDisclosing Party and Recipient are talking about a prospective Opportunity and nature of such Opportunity were disclosed to any third\nparty or if the Recipient uses the Disclosing Party's Confidential Information to directly or indirectly compete with the Disclosing Party or\nfor any other reason. Therefore, the Recipient agrees that neither it nor its Representatives (as hereinafter defined) will, directly or\nindirectly, (i) use the Disclosing Party's Confidential Information in any way other than for the purpose of evaluating and proposing a\npossible business Opportunity with the Disclosing Party and/or (ii) disclose to any person, business or entity all or any part of the\nDisclosing Party's Confidential Information, except as herein provided, and/or (iii) disclose to any person, business or entity either the fact\nthat the Disclosing Party's Confidential Information has been made available or the fact that discussions or negotiations are taking place\nconcerning a possible business Opportunity between the parties or any of the terms, conditions or other facts with respect to any possible\nOpportunities, including the status thereof; except that each party may make such disclosure if, upon the advice of counsel, such disclosure\nmust be made in order to comply with applicable law, regulation or judicial process.\n(b) The Recipient shall be entitled to disclose the Disclosing Party's Confidential Information to only those employees, officers, agents and\nadvisers of the Recipient (collectively, "Representatives") necessary for evaluating the Opportunity, provided that the Recipient advises\neach such Representative of the obligations contained herein and that by receiving such information the Representatives are agreeing to\nbe\nbound by this Agreement. The Recipient shall be responsible for any breach of this Agreement by it and/or any Representative and shall\nindemnify and hold the Disclosing Party harmless from any such breach.\nIII.\nThe Recipient understands and agrees for itself and its Representatives that neither the Disclosing Party nor any of its affiliates, agents,\nadvisors or representatives (a) have made or make any representation or warranty, expressed or implied, as to the accuracy or completeness\nof the Confidential Information or (b) shall have any liability whatsoever to the Recipient or its Representatives relating to or resulting from\nthe use of the Disclosing Party's Confidential Information or any errors therein or omissions therefrom. The only information that will have\nany legal effect will be specifically represented in a definitive written agreement and in no event will such definitive written agreement\ncontain any representation as to any projections.\nMUTUAL NON-DISCLOSURE AGREEMENT PAGE 2\nIV. No right or license to use the Disclosing Party's Confidential Information or other interest therein is hereby granted to the Recipient other\nthan for the purpose of evaluating the Opportunity.\nV.\nThe obligations of secrecy and non-disclosure set forth herein shall not apply to: (a) information which at the time of disclosure to the\nRecipient is in the public domain; (b) information which after disclosure to the Recipient becomes generally available to the public by\npublication or otherwise through no fault of the Recipient or any of its Representatives; (c) information which the Recipient or\nany\nof\nits\nRepresentative can demonstrate was already in the possession of the Recipient or any such Representative and which was not acquired by\nthe Recipient or any such Representative, as the case may be, directly or indirectly from the Disclosing Party; (d) subject to Paragraph\n6\nbelow, information the Recipient is required by court order, injunction, writ, law, rule or regulation to disclose; or (e) information which\nthe Recipient can demonstrate through competent written evidence was independently developed by or for the Recipient without use of or\nreliance on the Disclosing Party's Confidential Information.\nVI.\nIn the event that the Recipient and/or its Representatives are requested or required to disclose any of the Disclosing Party's Confidentia\nInformation in an investigatory, legal, regulatory or administrative proceeding the Recipient shall, unless legally prohibited therefrom,\nprovide the Disclosing Party with prompt written notice thereof so that the Disclosing Party may, in its discretion, seek a protective order\nor other appropriate remedy. The Recipient agrees to consult and cooperate with the Disclosing Party in seeking a protective order or other\nappropriate remedy. The Recipient may disclose only that portion of the Confidential Information that it is legally required to disclose.\nVII.\nThe Recipient further agrees that, without the prior written approval of the Disclosing Party, its Representatives who have been provided\nConfidential Information will not, directly or indirectly for a period of twelve (12) months from the date hereof, solicit for employment\nany\nemployees of the Disclosing Party with whom they have contact or about whom they learn in connection with their review of the\nOpportunity. Notwithstanding the foregoing, Recipient's Representatives may solicit or hire any person: (a) who responds to a public\nadvertisement or otherwise contacts Recipient on his or her own initiative, without any direct or indirect solicitation by Recipient, (b) who\nhas been brought to Recipient's attention by an agency, search firm or other independent third party, or (c) with whom Recipient initiates\ndiscussions regarding employment after such person is no longer an employee of the Disclosing Party.\nVIII. The Recipient shall return to the Disclosing Party upon demand any and all Confidential Information entrusted to it by the Disclosing Party\npursuant to this Agreement (including any and all copies, abstracts, compilations or analyses thereof and memoranda related thereto) or\nshall destroy all such Confidential Information and provide a certificate of destruction to the Disclosing Party signed\nMUTUAL NON-DISCLOSURE AGREEMENT - PAGE 3\nby the Recipient. The Recipient further agrees that neither it nor any Representative will copy in whole or in part any such Confidential\nInformation without the written consent of the Disclosing Party, except for the sole use of its Representatives in carrying out their\nevaluation of a possible business Opportunity with the Disclosing Party.\nIX.\nThe obligation of secrecy and non-disclosure set forth in this Agreement shall remain in effect for a period of one year from the date\nhereof.\nX.\nThis Agreement and the respective rights and obligations of the parties hereto shall be governed by and determined in accordance with the\nlaws of the State of Florida, without giving effect to its conflict of laws, principles or rules.\nXI. The Recipient agrees that money damages would not be a sufficient remedy for any breach of this Agreement by the Recipient or its\nRepresentatives and that in addition to all other remedies which may be available, the Disclosing Party may be entitled to specific\nperformance and injunctive or other equitable relief as a remedy for such breach and the Recipient further agrees to waive and to use its\nbest efforts to cause its Representatives to waive any requirement for securing or posting of any bond in connection with such remedy.\nXII.\nThis Agreement, which includes all attached exhibits referenced herein, constitutes the entire agreement between Company and SunTrust\nwith respect to the subject matter hereof, and supersedes all proposals, oral or written, and all other communications between the parties\nwith respect to such subject matter.\nXIII. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to\nthe\nextent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement, and any such prohibition or\nunenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction. To the extent\npermitted by law, the parties waive any provision of law which renders any such provision prohibited or unenforceable in any respect.\nIN WITNESS WHEREOF, this Agreement has been executed by the duly authorized officers of the parties as of the day and year written\nbelow.\nSUNCOAST HOLDINGS, INC.\nSUNTRUST BANKS, INC.\nBy:\n/s/ Steven M. Mariano\nBy:\n/s/ Daniel Baltz\nName: Steven M. Mariano\nName: Daniel Baltz\nTitle: Chief Executive Officer\nTitle: Group V.P., Insurance Risk Management\nDate: 10-11-07\nDate: 10-15-07\nMUTUAL NON-DISCLOSURE AGREEMENT - PAGE 4	EXHIBIT A\nMUTUAL NON-DISCLOSURE AGREEMENT\nOCTOBER 11, 2007\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (“Agreement”) is made this 11th day of October, 2007, by SunCoast Holdings, Inc., and all of\nits subsidiaries, affiliates and associations, with its principal place of business at 401 East Las Olas Blvd, Ft. Lauderdale, Florida, referred to\nhereafter as “Company,” and SunTrust Banks, Inc., and all of its subsidiaries, affiliates and associations, with its principal place of business at\n303 Peachtree Street, Suite 700 in Atlanta, GA, referred to hereafter as “SunTrust.”\nWHEREAS, Company wishes to evaluate a potential business opportunity with SunTrust involving SunTrust’s subsidiary Madison\nInsurance Company (hereinafter, the “Opportunity”) and, in connection therewith, the parties will be exchanging Confidential Information (as\nhereafter defined); and\nWHEREAS, the parties have agreed to provide certain Confidential Information to each other and desire to protect that Confidential\nInformation and preserve the confidential and proprietary nature of the Confidential Information and the prospective Opportunity. The providing\nparty is referred to in this Agreement as the “Disclosing Party,” while the receiving party is referred to as the “Recipient.”\nNOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants, promises and agreements contained herein,\nincluding the agreement to provide Confidential Information to each other and to discuss a prospective Opportunity and for other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Recipient\nhereby agrees as follows:\nI.\n“Confidential Information” as used in this Agreement shall mean any and all materials, documents and information, whether oral or in\nwritten or other tangible medium or form, regarding the Disclosing Party’s business or prospective business opportunities and plans, assets,\noperations, finances, employees, products and prospective products, and technology including, without limitation, any and all technical and\nnon-technical information, including patent, copyright, trade secret and proprietary information, techniques, sketches, ideas, schematics,\nconcepts, work in process, technology, models, inventions, material data, business methods, business policies, research and/or development,\ndrawings, know-how, processes, apparatus, equipment, algorithms, software programs, source code, object code, software source\ndocuments, and formulae related to the current, future and proposed products and services of the party. “Confidential Information” also\nincludes, without limitation, the Disclosing Party’s information concerning research, experimental work, development, design details and\nspecifications, engineering, financial information, procurement requirements, customer and supplier lists, user information, personnel\nmatters, pricing information, business\nMUTUAL NON-DISCLOSURE AGREEMENT — PAGE 1\nforecasts, sales and merchandising and marketing plans and information related to the current, future and proposed products and services of\nthe Disclosing Party.\nII. (a) The Recipient acknowledges the competitive value and confidential and proprietary nature of the Disclosing Party’s Confidential\nInformation and the damage that could result to the Disclosing Party if any part of the Confidential Information or the fact that the\nDisclosing Party and Recipient are talking about a prospective Opportunity and nature of such Opportunity were disclosed to any third\nparty or if the Recipient uses the Disclosing Party’s Confidential Information to directly or indirectly compete with the Disclosing Party or\nfor any other reason. Therefore, the Recipient agrees that neither it nor its Representatives (as hereinafter defined) will, directly or\nindirectly, (i) use the Disclosing Party’s Confidential Information in any way other than for the purpose of evaluating and proposing a\npossible business Opportunity with the Disclosing Party and/or (ii) disclose to any person, business or entity all or any part of the\nDisclosing Party’s Confidential Information, except as herein provided, and/or (iii) disclose to any person, business or entity either the fact\nthat the Disclosing Party’s Confidential Information has been made available or the fact that discussions or negotiations are taking place\nconcerning a possible business Opportunity between the parties or any of the terms, conditions or other facts with respect to any possible\nOpportunities, including the status thereof; except that each party may make such disclosure if, upon the advice of counsel, such disclosure\nmust be made in order to comply with applicable law, regulation or judicial process.\n(b) The Recipient shall be entitled to disclose the Disclosing Party’s Confidential Information to only those employees, officers, agents and\nadvisers of the Recipient (collectively, “Representatives”) necessary for evaluating the Opportunity, provided that the Recipient advises\neach such Representative of the obligations contained herein and that by receiving such information the Representatives are agreeing to be\nbound by this Agreement. The Recipient shall be responsible for any breach of this Agreement by it and/or any Representative and shall\nindemnify and hold the Disclosing Party harmless from any such breach.\nIII. The Recipient understands and agrees for itself and its Representatives that neither the Disclosing Party nor any of its affiliates, agents,\nadvisors or representatives (a) have made or make any representation or warranty, expressed or implied, as to the accuracy or completeness\nof the Confidential Information or (b) shall have any liability whatsoever to the Recipient or its Representatives relating to or resulting from\nthe use of the Disclosing Party’s Confidential Information or any errors therein or omissions therefrom. The only information that will have\nany legal effect will be specifically represented in a definitive written agreement and in no event will such definitive written agreement\ncontain any representation as to any projections.\nMUTUAL NON-DISCLOSURE AGREEMENT — PAGE 2\nIV. No right or license to use the Disclosing Party’s Confidential Information or other interest therein is hereby granted to the Recipient other\nthan for the purpose of evaluating the Opportunity.\nV. The obligations of secrecy and non-disclosure set forth herein shall not apply to: (a) information which at the time of disclosure to the\nRecipient is in the public domain; (b) information which after disclosure to the Recipient becomes generally available to the public by\npublication or otherwise through no fault of the Recipient or any of its Representatives; (c) information which the Recipient or any of its\nRepresentative can demonstrate was already in the possession of the Recipient or any such Representative and which was not acquired by\nthe Recipient or any such Representative, as the case may be, directly or indirectly from the Disclosing Party; (d) subject to Paragraph 6\nbelow, information the Recipient is required by court order, injunction, writ, law, rule or regulation to disclose; or (e) information which\nthe Recipient can demonstrate through competent written evidence was independently developed by or for the Recipient without use of or\nreliance on the Disclosing Party’s Confidential Information.\nVI. In the event that the Recipient and/or its Representatives are requested or required to disclose any of the Disclosing Party’s Confidential\nInformation in an investigatory, legal, regulatory or administrative proceeding, the Recipient shall, unless legally prohibited therefrom,\nprovide the Disclosing Party with prompt written notice thereof so that the Disclosing Party may, in its discretion, seek a protective order\nor other appropriate remedy. The Recipient agrees to consult and cooperate with the Disclosing Party in seeking a protective order or other\nappropriate remedy. The Recipient may disclose only that portion of the Confidential Information that it is legally required to disclose.\nVII. The Recipient further agrees that, without the prior written approval of the Disclosing Party, its Representatives who have been provided\nConfidential Information will not, directly or indirectly for a period of twelve (12) months from the date hereof, solicit for employment\nany employees of the Disclosing Party with whom they have contact or about whom they learn in connection with their review of the\nOpportunity. Notwithstanding the foregoing, Recipient’s Representatives may solicit or hire any person: (a) who responds to a public\nadvertisement or otherwise contacts Recipient on his or her own initiative, without any direct or indirect solicitation by Recipient, (b) who\nhas been brought to Recipient’s attention by an agency, search firm or other independent third party, or (c) with whom Recipient initiates\ndiscussions regarding employment after such person is no longer an employee of the Disclosing Party.\nVIII. The Recipient shall return to the Disclosing Party upon demand any and all Confidential Information entrusted to it by the Disclosing Party\npursuant to this Agreement (including any and all copies, abstracts, compilations or analyses thereof and memoranda related thereto) or\nshall destroy all such Confidential Information and provide a certificate of destruction to the Disclosing Party signed\nMUTUAL NON-DISCLOSURE AGREEMENT — PAGE 3\nby the Recipient. The Recipient further agrees that neither it nor any Representative will copy in whole or in part any such Confidential\nInformation without the written consent of the Disclosing Party, except for the sole use of its Representatives in carrying out their\nevaluation of a possible business Opportunity with the Disclosing Party.\nIX. The obligation of secrecy and non-disclosure set forth in this Agreement shall remain in effect for a period of one year from the date\nhereof.\nX. This Agreement and the respective rights and obligations of the parties hereto shall be governed by and determined in accordance with the\nlaws of the State of Florida, without giving effect to its conflict of laws, principles or rules.\nXI. The Recipient agrees that money damages would not be a sufficient remedy for any breach of this Agreement by the Recipient or its\nRepresentatives and that in addition to all other remedies which may be available, the Disclosing Party may be entitled to specific\nperformance and injunctive or other equitable relief as a remedy for such breach and the Recipient further agrees to waive and to use its\nbest efforts to cause its Representatives to waive any requirement for securing or posting of any bond in connection with such remedy.\nXII. This Agreement, which includes all attached exhibits referenced herein, constitutes the entire agreement between Company and SunTrust\nwith respect to the subject matter hereof, and supersedes all proposals, oral or written, and all other communications between the parties\nwith respect to such subject matter.\nXIII. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the\nextent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement, and any such prohibition or\nunenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction. To the extent\npermitted by law, the parties waive any provision of law which renders any such provision prohibited or unenforceable in any respect.\nIN WITNESS WHEREOF, this Agreement has been executed by the duly authorized officers of the parties as of the day and year written\nbelow.\nSUNCOAST HOLDINGS, INC.\nSUNTRUST BANKS, INC.\nBy: /s/ Steven M. Mariano\nBy: /s/ Daniel Baltz\nName: Steven M. Mariano\nName: Daniel Baltz\nTitle: Chief Executive Officer\nTitle: Group V.P., Insurance Risk Management\nDate: 10-11-07\nDate: 10-15-07\nMUTUAL NON-DISCLOSURE AGREEMENT — PAGE 4
2a5570f9e3da19693485209ccba614e7.pdf	effective_date jurisdiction party term	EX-10.2 7 dex102.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.2\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nIn connection with a possible business transaction (the “Transaction”) involving Manpower Inc. (“COMPANY”) and Comsys IT Partners, Inc.\n(“COMSYS”), collectively the “Parties,” certain information may be requested by both COMPANY and COMSYS relating to the other party or the\nTransaction and the Parties have agreed to enter into this Agreement. All such information (whether written or oral) furnished (whether before, on or\nafter the date hereof) by either company, or its directors, officers, employees, representatives (including, without limitation, financial advisors,\nfinancing sources, attorneys, consultants and accountants) or agents (collectively, “Representatives”) to the other party and all analyses,\ncompilations, forecasts, studies or other documents prepared by the Parties or their Representatives in connection with their review of, or their\ninterest in, the Transaction which contain, reflect, are generated from or are based upon, in whole or in part, any such information is hereinafter\nreferred to as the “Information.” The term Information will not, however, include information which (i) is or becomes generally available to the\npublic other than as a result of a disclosure by the receiving Party or its Representatives that is prohibited by this Agreement; (ii) is or becomes\navailable to the receiving Party on a nonconfidential basis from a source which, to the best of its knowledge, is not known to be prohibited from\ndisclosing such information to the receiving Party by a legal, contractual or fiduciary obligation to either Party; (iii) was in possession of the\nreceiving Party prior to the disclosure of the information pursuant to this Agreement, provided that the source of such information was not known by\nthe receiving Party, after due inquiry, to be subject to an obligation not to disclose such information; or (iv) is independently developed without\nreference to or use of the Information.\nAccordingly, the Parties hereby agree that:\n1. The Parties and their Representatives (i) will keep the Information strictly confidential and will not (except as required by applicable law,\nregulation or legal process, and only after compliance with paragraph 2 below), without the prior written consent of the other party, disclose\nany Information in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided,\nhowever, that the Parties may reveal the Information to their Representatives (a) who need to know the Information for the purpose of\nevaluating the Transaction, (b) who are informed by the Parties of the confidential nature of the Information and are provided with a copy of\nthis Agreement, (c) who agree not to disclose any of the Information to any other party and (d) who agree to act in accordance with the terms\nof this letter agreement to the same extent as if they were parties hereto. The Parties will cause their Representatives to observe the terms of\nthis letter agreement, and they will be responsible for any breach of this agreement by any of their Representatives.\n2. In the event that the Parties or any of their Representatives are requested pursuant to, or required by, applicable law, regulation, rules of any\nnational stock exchange, or legal process to disclose any of the Information, the Parties must notify each other promptly so that they may seek\na protective order or other appropriate remedy or, in the sole discretion of the party that initially furnished such Information, waive compliance\nwith the terms of this letter agreement. In the event that no such protective order or other remedy is\nobtained, or that the Parties waive compliance with the terms of this letter agreement, the Parties will furnish only that portion of the\nInformation which they are advised by counsel is legally required and will exercise all commercially reasonable efforts to obtain reliable\nassurance that confidential treatment will be accorded the Information.\n3. If COMPANY or COMSYS determines not to proceed with the Transaction, they will promptly inform the other Party of that decision and, in\nthat case, and at any time upon request of COMPANY or COMSYS or any of their Representatives, the other party will either (i) promptly\ndestroy all copies of the written Information in its or its Representatives’ possession and confirm such destruction to the initiating company in\nwriting or (ii) promptly deliver to the initiator of such action all copies of the written Information in its or its Representatives’ possession. Any\noral Information will continue to be subject to the terms of this letter agreement. Notwithstanding anything contained in the foregoing to the\ncontrary, either Party may retain in the files of its legal counsel such documents and records as are required to be maintained in order to satisfy\nany law, rule, or regulation to which the Party is subject or for the purpose of determining its continuing obligations under this Agreement,\nincluding any rule of any national stock exchange. Furthermore, if a legal proceeding has been instituted to seek disclosure of the Information,\nsuch material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered.\n4. Neither Party hereto shall in any way or in any form disclose, publicize or advertise in any manner the discussions that give rise to this\nAgreement or the discussions or negotiations covered by this Agreement, including the fact that any such discussions have taken or are taking\nplace, or any proposal relating thereto, including the terms and conditions thereof, without the prior written consent of the other Party.\nNotwithstanding any term or implication herein to the contrary, either Party may disclose Information and any of the information described in\nthe preceding paragraph to the extent such Party determines in good faith upon advice of counsel that such disclosure is required in connection\nwith such Party’s disclosure responsibilities under the securities laws (including regulations, rules and interpretations promulgated or issued by\na regulatory body), so long as such Party gives the other party such prior notice of such disclosure, and such opportunity to review, comment\non, and lawfully limit the proposed disclosure, as is reasonably available under the circumstances.\n5. The Parties hereby acknowledge that, unless and until a definitive agreement between COMPANY and COMSYS with respect to any\nTransaction has been executed and delivered, neither the COMPANY nor COMSYS will be under any legal obligation of any kind whatsoever\nwith respect to such Transaction and hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection\nwith any Transaction. In addition, neither Party will be under any obligation to negotiate a definitive agreement, by virtue of this or any written\nor oral expression, discussion or negotiation with respect to such Transaction by any or either of the Representatives of the Parties except, in\nthe case of this Agreement, for the matters specifically agreed to herein.\n2\n6. The Parties hereby agree that money damages may not be a sufficient remedy for any breach of this Agreement. Accordingly, in the event of\nany breach of the provisions of this Agreement, the breaching party agrees that the non-breaching party may be entitled to equitable relief,\nincluding injunction and specific performance. Such remedy may not be deemed to be the exclusive remedy for the breach of this Agreement\nbut may be in addition to all other remedies available at law or equity to the non-breaching party. In the event that the non-breaching party\nsuccessfully enforces the obligations of the breaching party hereunder, the breaching party shall reimburse the non-breaching party for all\nreasonable costs and expenses, including legal counsel, incurred by the non-breaching party in this regard.\n7. Disclosing Party makes no representation or warranty as to the accuracy or completeness of the Information and receiving Party agrees that\ndisclosing Party and its employees and agents shall have no liability to receiving Party resulting from any use of the Information.\n8. COMPANY agrees that, for a period of eighteen (18) months from the date of this Agreement, unless COMPANY shall have been specifically\ninvited in writing by COMSYS, neither COMPANY nor its Representatives as advisor to COMPANY as principal will in any manner, directly\nor indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any\nother person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities\n(or beneficial ownership thereof) or assets of COMSYS or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business\ncombination involving COMSYS or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other\nextraordinary transaction with respect to COMSYS or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in\nthe proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in\nany way participate in a “group” (as defined in the Securities Act of 1934) with respect to the securities of COMSYS; (c) otherwise act, alone\nor in concert with others, to seek to control or influence management or the board of directors or policies of COMSYS; (d) take any action\nwhich might force COMSYS to make a public announcement regarding any of the types of matters set forth in (a) above; or (e) enter into any\ndiscussions or arrangements with any third party with respect to any of the foregoing; provided, however, that if COMSYS makes a public\nannouncement that it has entered into a definitive agreement that contemplates a business combination transaction between COMSYS and a\nthird party that would result in a change of control of COMSYS, or in the event any third party has made a tender offer for a majority of the\nthen outstanding securities of COMSYS entitled to be voted generally in the election of directors, then COMPANY may make a proposal to\nthe board of directors of COMSYS with respect to a business combination transaction involving COMPANY and COMSYS.\n9. The Parties hereby acknowledge that in the event that any provision or portion of this letter agreement is determined to be invalid, illegal or\nunenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in\nfull force and effect to the fullest extent permitted by applicable law.\n3\nThe Parties further acknowledge that such invalid, illegal or unenforceable provision shall be substituted with a provision as similar in intent\nand economic effect to such provision as may be possible and yet be valid, legal and enforceable.\n10. The Parties hereby acknowledge that neither the failure nor delay by any party in exercising any right, power or privilege existing in\nconnection with this Agreement shall operate or be construed to be a waiver of such right, power or privilege. No single or partial exercise\nthereof will preclude any other or further exercise thereof or the exercise of any other right hereunder or otherwise legally available. No waiver\nhereunder shall be considered valid or enforceable, except by a written agreement signed by the Parties and no such waiver shall be deemed a\nwaiver of any subsequent instance or circumstance of the same or similar nature.\n11. This Agreement is the complete and exclusive statement of the agreement between the Parties and supersedes any and all other agreements, if\nany, between the Parties with respect to the subject matter hereof and contains all of the covenants and agreements between the Parties with\nrespect thereto. This Agreement contains the entire understanding between the Parties and supersedes all prior collateral communications, if\nany, regarding the subject matter hereof. This Agreement shall govern all communications between the Parties that are made during the period\nfrom the effective date of this Agreement to the date on which either party receives from the other written notice that subsequent\ncommunications shall not be so governed. No modification or amendment of this Agreement and no waiver of the terms and conditions hereof,\nin whole or in part, shall be binding, except by a written agreement signed by the Parties.\n12. This Agreement shall inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns and will be\nbinding upon the Parties and their respective Representatives, successors and permitted assigns.\n13. The validity, interpretation, performance and enforcement of this Agreement, its construction and the rights, remedies and obligations arising\nby, under, through or on account of it, shall be governed and construed in accordance with the laws of the State of New York, regardless of the\nlaws that might otherwise govern under applicable principles of conflicts of law thereof. The Parties hereby irrevocably and unconditionally\nconsent to the sole and exclusive venue and jurisdiction of the courts of the State of New York for any action, suit or proceeding arising out of\nor relating to this Agreement and hereby agree not to commence any action, suit or proceeding related thereto except in such courts.\n14. Except as otherwise provided in paragraph 8 above, this Agreement and all obligations of the parties hereunder, notwithstanding anything to\nthe contrary that may be contained herein, shall terminate one (1) year from the date of this Agreement.\n4\nManpower Inc.,\na Wisconsin corporation\nComsys IT Partners, Inc.,\na Delaware corporation\nBy: /s/ Michael J. Lynch\nBy: /s/ David L. Kerr\nName: Michael J. Lynch\nName: David L. Kerr\nVice President, General Counsel International\nSenior Vice President\nTitle\nTitle\nNovember 19, 2009\n11/19/09\nDate\nDate\n5	EX-10.2 7 dex102.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.2\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nIn connection with a possible business transaction (the “Transaction”) involving Manpower Inc. (“COMPANY”) and Comsys IT Partners, Inc.\n(“COMSYS”), collectively the “Parties,” certain information may be requested by both COMPANY and COMSYS relating to the other party or the\nTransaction and the Parties have agreed to enter into this Agreement. All such information (whether written or oral) furnished (whether before, on or\nafter the date hereof) by either company, or its directors, officers, employees, representatives (including, without limitation, financial advisors,\nfinancing sources, attorneys, consultants and accountants) or agents (collectively, “Representatives™) to the other party and all analyses,\ncompilations, forecasts, studies or other documents prepared by the Parties or their Representatives in connection with their review of, or their\ninterest in, the Transaction which contain, reflect, are generated from or are based upon, in whole or in part, any such information is hereinafter\nreferred to as the “Information.” The term Information will not, however, include information which (i) is or becomes generally available to the\npublic other than as a result of a disclosure by the receiving Party or its Representatives that is prohibited by this Agreement; (ii) is or becomes\navailable to the receiving Party on a nonconfidential basis from a source which, to the best of its knowledge, is not known to be prohibited from\ndisclosing such information to the receiving Party by a legal, contractual or fiduciary obligation to either Party; (iii) was in possession of the\nreceiving Party prior to the disclosure of the information pursuant to this Agreement, provided that the source of such information was not known by\nthe receiving Party, after due inquiry, to be subject to an obligation not to disclose such information; or (iv) is independently developed without\nreference to or use of the Information.\nAccordingly, the Parties hereby agree that:\n1. The Parties and their Representatives (i) will keep the Information strictly confidential and will not (except as required by applicable law,\nregulation or legal process, and only after compliance with paragraph 2 below), without the prior written consent of the other party, disclose\nany Information in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided,\nhowever, that the Parties may reveal the Information to their Representatives (a) who need to know the Information for the purpose of\nevaluating the Transaction, (b) who are informed by the Parties of the confidential nature of the Information and are provided with a copy of\nthis Agreement, (c) who agree not to disclose any of the Information to any other party and (d) who agree to act in accordance with the terms\nof this letter agreement to the same extent as if they were parties hereto. The Parties will cause their Representatives to observe the terms of\nthis letter agreement, and they will be responsible for any breach of this agreement by any of their Representatives.\n2. Inthe event that the Parties or any of their Representatives are requested pursuant to, or required by, applicable law, regulation, rules of any\nnational stock exchange, or legal process to disclose any of the Information, the Parties must notify each other promptly so that they may seek\na protective order or other appropriate remedy or, in the sole discretion of the party that initially furnished such Information, waive compliance\nwith the terms of this letter agreement. In the event that no such protective order or other remedy is\nobtained, or that the Parties waive compliance with the terms of this letter agreement, the Parties will furnish only that portion of the\nInformation which they are advised by counsel is legally required and will exercise all commercially reasonable efforts to obtain reliable\nassurance that confidential treatment will be accorded the Information.\nIf COMPANY or COMSYS determines not to proceed with the Transaction, they will promptly inform the other Party of that decision and, in\nthat case, and at any time upon request of COMPANY or COMSY S or any of their Representatives, the other party will either (i) promptly\ndestroy all copies of the written Information in its or its Representatives’ possession and confirm such destruction to the initiating company in\nwriting or (ii) promptly deliver to the initiator of such action all copies of the written Information in its or its Representatives’ possession. Any\noral Information will continue to be subject to the terms of this letter agreement. Notwithstanding anything contained in the foregoing to the\ncontrary, either Party may retain in the files of its legal counsel such documents and records as are required to be maintained in order to satisfy\nany law, rule, or regulation to which the Party is subject or for the purpose of determining its continuing obligations under this Agreement,\nincluding any rule of any national stock exchange. Furthermore, if a legal proceeding has been instituted to seek disclosure of the Information,\nsuch material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered.\nNeither Party hereto shall in any way or in any form disclose, publicize or advertise in any manner the discussions that give rise to this\nAgreement or the discussions or negotiations covered by this Agreement, including the fact that any such discussions have taken or are taking\nplace, or any proposal relating thereto, including the terms and conditions thereof, without the prior written consent of the other Party.\nNotwithstanding any term or implication herein to the contrary, either Party may disclose Information and any of the information described in\nthe preceding paragraph to the extent such Party determines in good faith upon advice of counsel that such disclosure is required in connection\nwith such Party’s disclosure responsibilities under the securities laws (including regulations, rules and interpretations promulgated or issued by\na regulatory body), so long as such Party gives the other party such prior notice of such disclosure, and such opportunity to review, comment\non, and lawfully limit the proposed disclosure, as is reasonably available under the circumstances.\nThe Parties hereby acknowledge that, unless and until a definitive agreement between COMPANY and COMSY'S with respect to any\nTransaction has been executed and delivered, neither the COMPANY nor COMSY S will be under any legal obligation of any kind whatsoever\nwith respect to such Transaction and hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection\nwith any Transaction. In addition, neither Party will be under any obligation to negotiate a definitive agreement, by virtue of this or any written\nor oral expression, discussion or negotiation with respect to such Transaction by any or either of the Representatives of the Parties except, in\nthe case of this Agreement, for the matters specifically agreed to herein.\n2\nThe Parties hereby agree that money damages may not be a sufficient remedy for any breach of this Agreement. Accordingly, in the event of\nany breach of the provisions of this Agreement, the breaching party agrees that the non-breaching party may be entitled to equitable relief,\nincluding injunction and specific performance. Such remedy may not be deemed to be the exclusive remedy for the breach of this Agreement\nbut may be in addition to all other remedies available at law or equity to the non-breaching party. In the event that the non-breaching party\nsuccessfully enforces the obligations of the breaching party hereunder, the breaching party shall reimburse the non-breaching party for all\nreasonable costs and expenses, including legal counsel, incurred by the non-breaching party in this regard.\nDisclosing Party makes no representation or warranty as to the accuracy or completeness of the Information and receiving Party agrees that\ndisclosing Party and its employees and agents shall have no liability to receiving Party resulting from any use of the Information.\nCOMPANY agrees that, for a period of eighteen (18) months from the date of this Agreement, unless COMPANY shall have been specifically\ninvited in writing by COMSY'S, neither COMPANY nor its Representatives as advisor to COMPANY as principal will in any manner, directly\nor indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any\nother person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities\n(or beneficial ownership thereof) or assets of COMSYS or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business\ncombination involving COMSYS or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other\nextraordinary transaction with respect to COMSYS or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in\nthe proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in\nany way participate in a “group” (as defined in the Securities Act of 1934) with respect to the securities of COMSYS; (c) otherwise act, alone\nor in concert with others, to seek to control or influence management or the board of directors or policies of COMSYS; (d) take any action\nwhich might force COMSYS to make a public announcement regarding any of the types of matters set forth in (a) above; or (e) enter into any\ndiscussions or arrangements with any third party with respect to any of the foregoing; provided, however, that if COMSYS makes a public\nannouncement that it has entered into a definitive agreement that contemplates a business combination transaction between COMSYS and a\nthird party that would result in a change of control of COMSYS, or in the event any third party has made a tender offer for a majority of the\nthen outstanding securities of COMSY S entitled to be voted generally in the election of directors, then COMPANY may make a proposal to\nthe board of directors of COMSYS with respect to a business combination transaction involving COMPANY and COMSYS.\nThe Parties hereby acknowledge that in the event that any provision or portion of this letter agreement is determined to be invalid, illegal or\nunenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in\nfull force and effect to the fullest extent permitted by applicable law.\n3\n10. 11. 12. 13. 14. The Parties further acknowledge that such invalid, illegal or unenforceable provision shall be substituted with a provision as similar in intent\nand economic effect to such provision as may be possible and yet be valid, legal and enforceable.\nThe Parties hereby acknowledge that neither the failure nor delay by any party in exercising any right, power or privilege existing in\nconnection with this Agreement shall operate or be construed to be a waiver of such right, power or privilege. No single or partial exercise\nthereof will preclude any other or further exercise thereof or the exercise of any other right hereunder or otherwise legally available. No waiver\nhereunder shall be considered valid or enforceable, except by a written agreement signed by the Parties and no such waiver shall be deemed a\nwaiver of any subsequent instance or circumstance of the same or similar nature.\nThis Agreement is the complete and exclusive statement of the agreement between the Parties and supersedes any and all other agreements, if\nany, between the Parties with respect to the subject matter hereof and contains all of the covenants and agreements between the Parties with\nrespect thereto. This Agreement contains the entire understanding between the Parties and supersedes all prior collateral communications, if\nany, regarding the subject matter hereof. This Agreement shall govern all communications between the Parties that are made during the period\nfrom the effective date of this Agreement to the date on which either party receives from the other written notice that subsequent\ncommunications shall not be so governed. No modification or amendment of this Agreement and no waiver of the terms and conditions hereof,\nin whole or in part, shall be binding, except by a written agreement signed by the Parties.\nThis Agreement shall inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns and will be\nbinding upon the Parties and their respective Representatives, successors and permitted assigns.\nThe validity, interpretation, performance and enforcement of this Agreement, its construction and the rights, remedies and obligations arising\nby, under, through or on account of it, shall be governed and construed in accordance with the laws of the State of New York, regardless of the\nlaws that might otherwise govern under applicable principles of conflicts of law thereof. The Parties hereby irrevocably and unconditionally\nconsent to the sole and exclusive venue and jurisdiction of the courts of the State of New York for any action, suit or proceeding arising out of\nor relating to this Agreement and hereby agree not to commence any action, suit or proceeding related thereto except in such courts.\nExcept as otherwise provided in paragraph 8 above, this Agreement and all obligations of the parties hereunder, notwithstanding anything to\nthe contrary that may be contained herein, shall terminate one (1) year from the date of this Agreement.\n4\nManpower Inc.,\na Wisconsin corporation\nBy: /s/ Michael J. Lynch\nName: Michael J. Lynch\nVice President, General Counsel International\nTitle\nNovember 19, 2009\nDate\nComsys IT Partners, Inc.,\na Delaware corporation\nBy: /s/ David L. Kerr\nName: David L. Kerr\nSenior Vice President\nTitle\n11/19/09\nDate	EX-10.2 7 dex102.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.2\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nIn connection with a possible business transaction (the "Transaction") involving Manpower Inc. ("COMPANY") and Comsys IT Partners,\nInc.\n("COMSYS"), collectively the "Parties," certain information may be requested by both COMPANY and COMSYS relating to the other party or the\nTransaction and the Parties have agreed to enter into this Agreement. All such information (whether written or oral) furnished (whether before, on or\nafter the date hereof) by either company, or its directors, officers, employees, representatives (including, without limitation, financial advisors,\nfinancing sources, attorneys, consultants and accountants) or agents (collectively, "Representatives") to the other party and all analyses,\ncompilations, forecasts, studies or other documents prepared by the Parties or their Representatives in connection with their review of, or their\ninterest in, the Transaction which contain, reflect, are generated from or are based upon, in whole or in part, any such information is hereinafter\nreferred to as the "Information." The term Information will not, however, include information which (i) is or becomes generally available to the\npublic other than as a result of a disclosure by the receiving Party or its Representatives that is prohibited by this Agreement; (ii) is or becomes\navailable\nto\nthe\nreceiving\nParty\non\na\nnonconfidential\nbasis\nfrom\na\nsource\nwhich,\nto\nthe\nbest\nof\nits\nknowledge,\nis\nnot\nknown\nto\nbe\nprohibited\nfrom\ndisclosing such information to the receiving Party by a legal, contractual or fiduciary obligation to either Party; (iii) was in possession of the\nreceiving Party prior to the disclosure of the information pursuant to this Agreement, provided that the source of such information was not known\nby\nthe receiving Party, after due inquiry, to be subject to an obligation not to disclose such information; or (iv) is independently developed without\nreference to or use of the Information.\nAccordingly, the Parties hereby agree that:\n1.\nThe Parties and their Representatives (i) will keep the Information strictly confidential and will not (except as required by applicable law,\nregulation or legal process, and only after compliance with paragraph 2 below), without the prior written consent of the other party, disclose\nany Information in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided,\nhowever, that the Parties may reveal the Information to their Representatives (a) who need to know the Information for the purpose of\nevaluating the Transaction, (b) who are informed by the Parties of the confidential nature of the Information and are provided with a copy of\nthis Agreement, (c) who agree not to disclose any of the Information to any other party and (d) who agree to act in accordance with the terms\nof\nthis letter agreement to the same extent as if they were parties hereto. The Parties will cause their Representatives to observe the terms of\nthis letter agreement, and they will be responsible for any breach of this agreement by any of their Representatives.\n2. In the event that the Parties or any of their Representatives are requested pursuant to, or required by, applicable law, regulation, rules of any\nnational stock exchange, or legal process to disclose any of the Information, the Parties must notify each other promptly so that they may seek\na protective order or other appropriate remedy or, in the sole discretion of the party that initially furnished such Information, waive compliance\nwith the terms of this letter agreement. In the event that no such protective order or other remedy is\nobtained, or that the Parties waive compliance with the terms of this letter agreement, the Parties will furnish only that portion\nof\nthe\nInformation which they are advised by counsel is legally required and will exercise all commercially reasonable efforts to obtain reliable\nassurance that confidential treatment will be accorded the Information.\n3.\nIf COMPANY or COMSYS determines not to proceed with the Transaction, they will promptly inform the other Party of that decision and, in\nthat case, and at any time upon request of COMPANY or COMSYS or any of their Representatives, the other party will either (i) promptly\ndestroy all copies of the written Information in its or its Representatives' possession and confirm such destruction to the initiating company in\nwriting or (ii) promptly deliver to the initiator of such action all copies of the written Information in its or its Representatives' possession. Any\noral Information will continue to be subject to the terms of this letter agreement. Notwithstanding anything contained in the foregoing to the\ncontrary, either Party may retain in the files of its legal counsel such documents and records as are required to be maintained in order to satisfy\nany law, rule, or regulation to which the Party is subject or for the purpose of determining its continuing obligations under this Agreement,\nincluding any rule of any national stock exchange. Furthermore, if a legal proceeding has been instituted to seek disclosure of the Information,\nsuch material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered.\n4.\nNeither Party hereto shall in any way or in any form disclose, publicize or advertise in any manner the discussions that give rise to this\nAgreement or the discussions or negotiations covered by this Agreement, including the fact that any such discussions have taken or are taking\nplace, or any proposal relating thereto, including the terms and conditions thereof, without the prior written consent of the other Party.\nNotwithstanding any term or implication herein to the contrary, either Party may disclose Information and any of the information described in\nthe preceding paragraph to the extent such Party determines in good faith upon advice of counsel that such disclosure is required in connection\nwith such Party's disclosure responsibilities under the securities laws (including regulations, rules and interpretations promulgated or issued by\na\nregulatory body), SO long as such Party gives the other party such prior notice of such disclosure, and such opportunity to review, comment\non, and lawfully limit the proposed disclosure, as is reasonably available under the circumstances.\n5.\nThe Parties hereby acknowledge that, unless and until a definitive agreement between COMPANY and COMSYS with respect to any\nTransaction has been executed and delivered, neither the COMPANY nor COMSYS will be under any legal obligation of any kind whatsoever\nwith respect to such Transaction and hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection\nwith any Transaction. In addition, neither Party will be under any obligation to negotiate a definitive agreement, by virtue of this or any written\nor oral expression, discussion or negotiation with respect to such Transaction by any or either of the Representatives of the Parties except, in\nthe case of this Agreement, for the matters specifically agreed to herein.\n2\n6.\nThe Parties hereby agree that money damages may not be a sufficient remedy for any breach of this Agreement. Accordingly, in the event of\nany breach of the provisions of this Agreement, the breaching party agrees that the non-breaching party may be entitled to equitable relief,\nincluding injunction and specific performance. Such remedy may not be deemed to be the exclusive remedy for the breach of this Agreement\nbut may be in addition to all other remedies available at law or equity to the non-breaching party. In the event that the non-breaching party\nsuccessfully enforces the obligations of the breaching party hereunder, the breaching party shall reimburse the non-breaching party for all\nreasonable costs and expenses, including legal counsel, incurred by the non-breaching party in this regard.\n7.\nDisclosing Party makes no representation or warranty as to the accuracy or completeness of the Information and receiving Party agrees that\ndisclosing Party and its employees and agents shall have no liability to receiving Party resulting from any use of the Information.\n8.\nCOMPANY agrees that, for a period of eighteen (18) months from the date of this Agreement, unless COMPANY shall have been specifically\ninvited in writing by COMSYS, neither COMPANY nor its Representatives as advisor to COMPANY as principal will in any manner, directly\nor indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any\nother person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities\n(or beneficial ownership thereof) or assets of COMSYS or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business\ncombination involving COMSYS or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other\nextraordinary transaction with respect to COMSYS or any of its subsidiaries, or (iv) any "solicitation" of "proxies" (as such terms are used in\nthe proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in\nany way participate in a "group" (as defined in the Securities Act of 1934) with respect to the securities of COMSYS; (c) otherwise act, alone\nor in concert with others, to seek to control or influence management or the board of directors or policies of COMSYS; (d) take any action\nwhich might force COMSYS to make a public announcement regarding any of the types of matters set forth in (a) above; or (e) enter into any\ndiscussions or arrangements with any third party with respect to any of the foregoing; provided, however, that if COMSYS makes a public\nannouncement that it has entered into a definitive agreement that contemplates a business combination transaction between COMSYS and a\nthird\nparty\nthat would result in a change of control of COMSYS, or in the event any third party has made a tender offer for a majority of\nthe\nthen outstanding securities of COMSYS entitled to be voted generally in the election of directors, then COMPANY may make a proposal\nto\nthe board of directors of COMSYS with respect to a business combination transaction involving COMPANY and COMSYS.\n9.\nThe Parties hereby acknowledge that in the event that any provision or portion of this letter agreement is determined to be invalid, illegal or\nunenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain\nin\nfull force and effect to the fullest extent permitted by applicable law.\n3\nThe Parties further acknowledge that such invalid, illegal or unenforceable provision shall be substituted with a provision as similar in intent\nand economic effect to such provision as may be possible and yet be valid, legal and enforceable.\n10. The Parties hereby acknowledge that neither the failure nor delay by any party in exercising any right, power or privilege existing in\nconnection with this Agreement shall operate or be construed to be a waiver of such right, power or privilege. No single or partial exercise\nthereof will preclude any other or further exercise thereof or the exercise of any other right hereunder or otherwise legally available.\nNo\nwaiver\nhereunder shall be considered valid or enforceable, except by a written agreement signed by the Parties and no such waiver shall be deemed\na\nwaiver of any subsequent instance or circumstance of the same or similar nature.\n11. This Agreement is the complete and exclusive statement of the agreement between the Parties and supersedes any and all other agreements, if\nany, between the Parties with respect to the subject matter hereof and contains all of the covenants and agreements between the Parties with\nrespect thereto. This Agreement contains the entire understanding between the Parties and supersedes all prior collateral communications, if\nany, regarding the subject matter hereof. This Agreement shall govern all communications between the Parties that are made during the period\nfrom the effective date of this Agreement to the date on which either party receives from the other written notice that subsequent\ncommunications shall not be so governed. No modification or amendment of this Agreement and no waiver of the terms and conditions hereof,\nin whole or in part, shall be binding, except by a written agreement signed by the Parties.\n12.\nThis Agreement shall inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns and will be\nbinding upon the Parties and their respective Representatives, successors and permitted assigns.\n13.\nThe validity, interpretation, performance and enforcement of this Agreement, its construction and the rights, remedies and obligations arising\nby, under, through or on account of it, shall be governed and construed in accordance with the laws of the State of New York, regardless of the\nlaws that might otherwise govern under applicable principles of conflicts of law thereof. The Parties hereby irrevocably and unconditionally\nconsent to the sole and exclusive venue and jurisdiction of the courts of the State of New York for any action, suit or proceeding arising out of\nor relating to this Agreement and hereby agree not to commence any action, suit or proceeding related thereto except in such courts.\n14.\nExcept as otherwise provided in paragraph 8 above, this Agreement and all obligations of the parties hereunder, notwithstanding anything to\nthe contrary that may be contained herein, shall terminate one (1) year from the date of this Agreement.\n4\nManpower Inc.,\nComsys IT Partners, Inc.,\na Wisconsin corporation\na Delaware corporation\nBy: /s/ Michael J. Lynch\nBy: /s/ David L. Kerr\nName: Michael J. Lynch\nName: David L. Kerr\nVice President, General Counsel International\nSenior Vice President\nTitle\nTitle\nNovember 19, 2009\n11/19/09\nDate\nDate\n5	EX-10.2 7 dex102.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.2\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nIn connection with a possible business transaction (the “Transaction”) involving Manpower Inc. (“COMPANY”) and Comsys IT Partners, Inc.\n(“COMSYS”), collectively the “Parties,” certain information may be requested by both COMPANY and COMSYS relating to the other party or the\nTransaction and the Parties have agreed to enter into this Agreement. All such information (whether written or oral) furnished (whether before, on or\nafter the date hereof) by either company, or its directors, officers, employees, representatives (including, without limitation, financial advisors,\nfinancing sources, attorneys, consultants and accountants) or agents (collectively, “Representatives”) to the other party and all analyses,\ncompilations, forecasts, studies or other documents prepared by the Parties or their Representatives in connection with their review of, or their\ninterest in, the Transaction which contain, reflect, are generated from or are based upon, in whole or in part, any such information is hereinafter\nreferred to as the “Information.” The term Information will not, however, include information which (i) is or becomes generally available to the\npublic other than as a result of a disclosure by the receiving Party or its Representatives that is prohibited by this Agreement; (ii) is or becomes\navailable to the receiving Party on a nonconfidential basis from a source which, to the best of its knowledge, is not known to be prohibited from\ndisclosing such information to the receiving Party by a legal, contractual or fiduciary obligation to either Party; (iii) was in possession of the\nreceiving Party prior to the disclosure of the information pursuant to this Agreement, provided that the source of such information was not known by\nthe receiving Party, after due inquiry, to be subject to an obligation not to disclose such information; or (iv) is independently developed without\nreference to or use of the Information.\nAccordingly, the Parties hereby agree that:\n1. The Parties and their Representatives (i) will keep the Information strictly confidential and will not (except as required by applicable law,\nregulation or legal process, and only after compliance with paragraph 2 below), without the prior written consent of the other party, disclose\nany Information in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided,\nhowever, that the Parties may reveal the Information to their Representatives (a) who need to know the Information for the purpose of\nevaluating the Transaction, (b) who are informed by the Parties of the confidential nature of the Information and are provided with a copy of\nthis Agreement, (c) who agree not to disclose any of the Information to any other party and (d) who agree to act in accordance with the terms\nof this letter agreement to the same extent as if they were parties hereto. The Parties will cause their Representatives to observe the terms of\nthis letter agreement, and they will be responsible for any breach of this agreement by any of their Representatives.\n2. In the event that the Parties or any of their Representatives are requested pursuant to, or required by, applicable law, regulation, rules of any\nnational stock exchange, or legal process to disclose any of the Information, the Parties must notify each other promptly so that they may seek\na protective order or other appropriate remedy or, in the sole discretion of the party that initially furnished such Information, waive compliance\nwith the terms of this letter agreement. In the event that no such protective order or other remedy is\nobtained, or that the Parties waive compliance with the terms of this letter agreement, the Parties will furnish only that portion of the\nInformation which they are advised by counsel is legally required and will exercise all commercially reasonable efforts to obtain reliable\nassurance that confidential treatment will be accorded the Information.\n3. If COMPANY or COMSYS determines not to proceed with the Transaction, they will promptly inform the other Party of that decision and, in\nthat case, and at any time upon request of COMPANY or COMSYS or any of their Representatives, the other party will either (i) promptly\ndestroy all copies of the written Information in its or its Representatives’ possession and confirm such destruction to the initiating company in\nwriting or (ii) promptly deliver to the initiator of such action all copies of the written Information in its or its Representatives’ possession. Any\noral Information will continue to be subject to the terms of this letter agreement. Notwithstanding anything contained in the foregoing to the\ncontrary, either Party may retain in the files of its legal counsel such documents and records as are required to be maintained in order to satisfy\nany law, rule, or regulation to which the Party is subject or for the purpose of determining its continuing obligations under this Agreement,\nincluding any rule of any national stock exchange. Furthermore, if a legal proceeding has been instituted to seek disclosure of the Information,\nsuch material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered.\n4. Neither Party hereto shall in any way or in any form disclose, publicize or advertise in any manner the discussions that give rise to this\nAgreement or the discussions or negotiations covered by this Agreement, including the fact that any such discussions have taken or are taking\nplace, or any proposal relating thereto, including the terms and conditions thereof, without the prior written consent of the other Party.\nNotwithstanding any term or implication herein to the contrary, either Party may disclose Information and any of the information described in\nthe preceding paragraph to the extent such Party determines in good faith upon advice of counsel that such disclosure is required in connection\nwith such Party’s disclosure responsibilities under the securities laws (including regulations, rules and interpretations promulgated or issued by\na regulatory body), so long as such Party gives the other party such prior notice of such disclosure, and such opportunity to review, comment\non, and lawfully limit the proposed disclosure, as is reasonably available under the circumstances.\n5. The Parties hereby acknowledge that, unless and until a definitive agreement between COMPANY and COMSYS with respect to any\nTransaction has been executed and delivered, neither the COMPANY nor COMSYS will be under any legal obligation of any kind whatsoever\nwith respect to such Transaction and hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection\nwith any Transaction. In addition, neither Party will be under any obligation to negotiate a definitive agreement, by virtue of this or any written\nor oral expression, discussion or negotiation with respect to such Transaction by any or either of the Representatives of the Parties except, in\nthe case of this Agreement, for the matters specifically agreed to herein.\n2\n6. The Parties hereby agree that money damages may not be a sufficient remedy for any breach of this Agreement. Accordingly, in the event of\nany breach of the provisions of this Agreement, the breaching party agrees that the non-breaching party may be entitled to equitable relief,\nincluding injunction and specific performance. Such remedy may not be deemed to be the exclusive remedy for the breach of this Agreement\nbut may be in addition to all other remedies available at law or equity to the non-breaching party. In the event that the non-breaching party\nsuccessfully enforces the obligations of the breaching party hereunder, the breaching party shall reimburse the non-breaching party for all\nreasonable costs and expenses, including legal counsel, incurred by the non-breaching party in this regard.\n7. Disclosing Party makes no representation or warranty as to the accuracy or completeness of the Information and receiving Party agrees that\ndisclosing Party and its employees and agents shall have no liability to receiving Party resulting from any use of the Information.\n8. COMPANY agrees that, for a period of eighteen (18) months from the date of this Agreement, unless COMPANY shall have been specifically\ninvited in writing by COMSYS, neither COMPANY nor its Representatives as advisor to COMPANY as principal will in any manner, directly\nor indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any\nother person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities\n(or beneficial ownership thereof) or assets of COMSYS or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business\ncombination involving COMSYS or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other\nextraordinary transaction with respect to COMSYS or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in\nthe proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in\nany way participate in a “group” (as defined in the Securities Act of 1934) with respect to the securities of COMSYS; (c) otherwise act, alone\nor in concert with others, to seek to control or influence management or the board of directors or policies of COMSYS; (d) take any action\nwhich might force COMSYS to make a public announcement regarding any of the types of matters set forth in (a) above; or (e) enter into any\ndiscussions or arrangements with any third party with respect to any of the foregoing; provided, however, that if COMSYS makes a public\nannouncement that it has entered into a definitive agreement that contemplates a business combination transaction between COMSYS and a\nthird party that would result in a change of control of COMSYS, or in the event any third party has made a tender offer for a majority of the\nthen outstanding securities of COMSYS entitled to be voted generally in the election of directors, then COMPANY may make a proposal to\nthe board of directors of COMSYS with respect to a business combination transaction involving COMPANY and COMSYS.\n9. The Parties hereby acknowledge that in the event that any provision or portion of this letter agreement is determined to be invalid, illegal or\nunenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in\nfull force and effect to the fullest extent permitted by applicable law.\n3\nThe Parties further acknowledge that such invalid, illegal or unenforceable provision shall be substituted with a provision as similar in intent\nand economic effect to such provision as may be possible and yet be valid, legal and enforceable.\n10. The Parties hereby acknowledge that neither the failure nor delay by any party in exercising any right, power or privilege existing in\nconnection with this Agreement shall operate or be construed to be a waiver of such right, power or privilege. No single or partial exercise\nthereof will preclude any other or further exercise thereof or the exercise of any other right hereunder or otherwise legally available. No waiver\nhereunder shall be considered valid or enforceable, except by a written agreement signed by the Parties and no such waiver shall be deemed a\nwaiver of any subsequent instance or circumstance of the same or similar nature.\n11. This Agreement is the complete and exclusive statement of the agreement between the Parties and supersedes any and all other agreements, if\nany, between the Parties with respect to the subject matter hereof and contains all of the covenants and agreements between the Parties with\nrespect thereto. This Agreement contains the entire understanding between the Parties and supersedes all prior collateral communications, if\nany, regarding the subject matter hereof. This Agreement shall govern all communications between the Parties that are made during the period\nfrom the effective date of this Agreement to the date on which either party receives from the other written notice that subsequent\ncommunications shall not be so governed. No modification or amendment of this Agreement and no waiver of the terms and conditions hereof,\nin whole or in part, shall be binding, except by a written agreement signed by the Parties.\n12. This Agreement shall inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns and will be\nbinding upon the Parties and their respective Representatives, successors and permitted assigns.\n13. The validity, interpretation, performance and enforcement of this Agreement, its construction and the rights, remedies and obligations arising\nby, under, through or on account of it, shall be governed and construed in accordance with the laws of the State of New York, regardless of the\nlaws that might otherwise govern under applicable principles of conflicts of law thereof. The Parties hereby irrevocably and unconditionally\nconsent to the sole and exclusive venue and jurisdiction of the courts of the State of New York for any action, suit or proceeding arising out of\nor relating to this Agreement and hereby agree not to commence any action, suit or proceeding related thereto except in such courts.\n14. Except as otherwise provided in paragraph 8 above, this Agreement and all obligations of the parties hereunder, notwithstanding anything to\nthe contrary that may be contained herein, shall terminate one (1) year from the date of this Agreement.\n4\nManpower Inc.,\na Wisconsin corporation\nComsys IT Partners, Inc.,\na Delaware corporation\nBy: /s/ Michael J. Lynch\nBy: /s/ David L. Kerr\nName: Michael J. Lynch\nName: David L. Kerr\nVice President, General Counsel International\nSenior Vice President\nTitle\nTitle\nNovember 19, 2009\n11/19/09\nDate\nDate\n5
2bf3498214fb0e9a3e83622600210881.pdf	effective_date jurisdiction party term	EXHIBIT 5\nNON-DISCLOSURE FORM\nMICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (the “Agreement”) is made and entered into as of the later of the two signature dates below.\nCOMPANY: ELECTRONIC ARTS\nMICROSOFT CORPORATION\nAddress: 1900-250 Howe Street\nVancouver,\nV6C 3R8\nOne Microsoft Way\nRedmond, WA 98052-6399\nSign: /s/ Paul Roberts\nSign: /s/ Sue Grinius-Hill\nPrint Name: Paul Roberts\nPrint Name: Sue Grinius-Hill\nPrint Title: Director, World Wide Studios\nPrint Title: Senior Program Manger\nSignature Date: June 17, 2005\nSignature Date: 7/15/05\n1\nDefinition of Confidential Information and Exclusions\n(a)\n“Confidential Information” means nonpublic information that a party to this Agreement (“Disclosing Party”) designates as being\nconfidential to the party that receives such information (“Receiving Party”) or which, under the circumstances surrounding disclosure ought to be\ntreated as confidential by the Receiving Party. “Confidential Information” includes, without limitation, information in tangible or intangible form\nrelating to and/or including released or unreleased Disclosing Party software or hardware products, the marketing or promotion of any Disclosing\nParty product, Disclosing Party’s business policies or practices, and information received from others that Disclosing Party is obligated to treat as\nconfidential. Except as otherwise indicated in this Agreement, the term “Disclosing Party” also includes all Affiliates of the Disclosing Party and,\nexcept as otherwise indicated, the term “Receiving Party” also includes all Affiliates of the Receiving Party. An “Affiliate” means any person,\npartnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or\nindirectly, control, are controlled by, or are under common control with a party. Prior to the time that any Confidential Information is shared with an\nAffiliate who has not signed this Agreement, the Receiving Party that executed this Agreement below (the “Signatory Receiving Party”) shall have\nentered into an appropriate written agreement with that Affiliate sufficient to enable the Disclosing Party and/or the Signatory Receiving Party to\nenforce all of the provisions of this Agreement against such Affiliate.\n(b) Confidential Information shall not include any information, however designated, that: (i) is or subsequently becomes publicly available\nwithout Receiving Party’s breach of any obligation owed Disclosing Party; (ii) became known to Receiving Party prior to Disclosing Party’s\ndisclosure of such information to Receiving Party pursuant to the terms of this Agreement; (iii) became known to Receiving Party from a source\nother than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party; (iv) is independently developed by\nReceiving Party; or (v) constitutes Feedback (as defined in Section 5 of this Agreement).\n32\nMICROSOFT CONFIDENTIAL\n2.\nObligations Regarding Confidential Information\n(a) Receiving Party shall:\n(i) Refrain from disclosing any Confidential Information of the Disclosing Party to third parties for five (5) years following the\ndate that Disclosing Party first discloses such Confidential Information to Receiving Party, except as expressly provided in\nSections 2(b) and 2(c) of this Agreement;\n(ii) Take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information,\nbut no less than reasonable care, to keep confidential the Confidential Information of the Disclosing Party;\n(iii) Refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information of the Disclosing Party except\nin pursuance of Receiving Party’s business relationship with Disclosing Party, and only as otherwise provided hereunder;\nand\n(iv) Refrain from reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices\ndisclosed by Disclosing Party to Receiving Party under the terms of this Agreement, except as expressly permitted by\napplicable law.\n(b) Receiving Party may disclose Confidential Information of Disclosing Party in accordance with a judicial or other governmental order,\nprovided that Receiving Party either (i) gives the undersigned Disclosing Party reasonable noticeprior to such disclosure to allow Disclosing Party\na reasonable opportunity to seek a protective order or equivalent, or (ii) obtains written assurance from the applicable judicial or governmental\nentity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation. Notwithstanding the\nforegoing, the Receiving Party shall not disclose any computer source code that contains Confidential Information of the Disclosing Party in\naccordance with a judicial or other governmental order unless it complies with the requirement set forth in sub-section (i) of this Section 2(b).\n(c) The Signatory Receiving Party may disclose Confidential Information only to Receiving Party’s employees and consultants on a need-to-\nknow basis. The Receiving Party will have executed or shall execute appropriate written agreements with its employees and consultants sufficient\nto enable Receiving Party to enforce all the provisions of this Agreement.\n(d) Receiving Party shall notify the undersigned Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nConfidential Information or any other breach of this Agreement by Receiving Party and its employees and consultants, and will cooperate with\nDisclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further\nunauthorized use or disclosure.\n(e) Receiving Party shall, at Disclosing Party’s request, return all originals, copies, reproductions and summaries of Confidential Information\nand all other tangible materials and devices provided to the Receiving Party as Confidential Information, or at Disclosing Party’s option, certify\ndestruction of the same.\n3. Remedies. The parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential\nInformation and that Disclosing Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be\ndeemed proper by a court of competent jurisdiction.\n4. Miscellaneous\n(a) All Confidential Information is and shall remain the property of Disclosing Party. By disclosing Confidential Information to Receiving\nParty, Disclosing Party does not grant any express or implied right to Receiving Party to or under any patents, copyrights, trademarks, or trade\nsecret information except as otherwise provided herein. Disclosing Party reserves without prejudice the ability to protect its rights under any such\npatents, copyrights, trademarks, or trade secrets except as otherwise provided herein.\n(b) In the event that the Disclosing Party provides any computer software and/or hardware to the Receiving Party as Confidential\nInformation under the terms of this Agreement, such computer software and/or hardware may only be used by the Receiving Party for evaluation\nand providing Feedback (as defined in Section 5 of this Agreement) to the Disclosing Party. Unless otherwise agreed by the Disclosing Party and\nthe Receiving Party, all such computer software and/or hardware is provided “AS IS” without warranty of any kind, and Receiving Party agrees that\nneither Disclosing Party nor its suppliers shall be liable for any damages whatsoever arising from or relating to Receiving Party’s use of or inability\nto use such software and/or hardware.\n(c) The parties agree to comply with all applicable international and national laws that apply to (i) any Confidential Information, or (ii) any\nproduct (or any part thereof), process or service that is the direct product of the Confidential Information, including the\n33\nMICROSOFT CONFIDENTIAL\nU.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For\nadditional information on exporting Microsoft products, see http://www.microsoft.com/exporting/.\n(d) The terms of confidentiality under this Agreement shall not be construed to limit either the Disclosing Party or the Receiving Party’s\nright to independently develop or acquire products without use of the other party’s Confidential Information. Further, the Receiving Party shall be\nfree to use for any purpose the residuals resulting from access to or work with the Confidential Information of the Disclosing Party, provided that\nthe Receiving Party shall not disclose the Confidential Information except as expressly permitted pursuant to the terms of this Agreement. The\nterm “residuals” means information in intangible form, which is retained in memory by persons who have had access to the Confidential\nInformation, including ideas, concepts, know-how or techniques contained therein. The Receiving Party shall not have any obligation to limit or\nrestrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals. However, this sub-paragraph shall not\nbe deemed to grant to the Receiving Party a license under the Disclosing Party’s copyrights or patents.\n(e) None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of Disclosing\nParty, the Receiving Party, their agents, or employees, but only by an instrument in writing signed by an authorized employee of Disclosing Party\nand the Receiving Party. No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision\non another occasion.\n(f) If either Disclosing Party or the Receiving Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the\nprevailing party shall be entitled to recover reasonable attorneys’ fees and costs. This Agreement shall be construed and controlled by the laws of\nthe State of Washington, and the parties further consent to exclusive jurisdiction and venue in the federal courts sitting in King County,\nWashington, unless no federal subject matter jurisdiction exists, in which case the parties consent to the exclusive jurisdiction and venue in the\nSuperior Court of King County, Washington. Company waives all defenses of lack of personal jurisdiction and forum non conveniens. Process may\nbe served on either party in the manner authorized by applicable law or court rule.\n(g) This Agreement shall be binding upon and inure to the benefit of each party’s respective successors and lawful assigns; provided,\nhowever, that neither party may assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise), in whole or\nin part, without the prior written approval of the other party. Any attempted assignment in violation of this Section shall be void.\n(h)\nIf any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the\nremaining provisions shall remain in full force and effect.\n(i) Either party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party sent to the\naddress listed above (and if to Microsoft, with a cc to “Law & Corporate Affairs, attn.. NDA, LCA Records. All sections of this Agreement shall\nsurvive any such termination.\n(k) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. It shall not be modified\nexcept by written agreement dated subsequent to the date of this Agreement and signed on behalf of the parties by their respective duly\nauthorized representatives.\n5. Suggestions and Feedback. The Receiving Party may from time to time provide suggestions, comments or other feedback (“Feedback”) to\nthe Disclosing Party with respect to Confidential Information provided originally by the Disclosing Party. Both parties agree that all Feedback is and\nshall be given entirely voluntarily. Feedback, even if designated as confidential by the party offering the Feedback, shall not, absent a separate\nwritten agreement, create any confidentiality obligation for the receiver of the Feedback. Receiving Party will not give Feedback that is subject to\nlicense terms that seek to require any Disclosing Party product, technology, service or documentation incorporating or derived from such\nFeedback, or any Disclosing Party intellectual property, to be licensed or otherwise shared with any third party. Furthermore, except as otherwise\nprovided herein or in a separate subsequent written agreement between the parties, the receiver of the Feedback shall be free to use, disclose,\nreproduce, license or otherwise distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind\non account of intellectual property rights or otherwise.\n34\nMICROSOFT CONFIDENTIAL	EXHIBIT 5\nNON-DISCLOSURE FORM\nMICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (the “Agreement”) is made and entered into as of the later of the two signature dates below.\nCOMPANY: ELECTRONIC ARTS MICROSOFT CORPORATION\nAddress: 1900-250 Howe Street One Microsoft Way\nVancouver, Redmond, WA 98052-6399\nV6C 3R8\nSign: /s/ Paul Roberts Sign: /s/ Sue Grinius-Hill\nPrint Name: Paul Roberts Print Name: Sue Grinius-Hill\nPrint Title: Director, World Wide Studios Print Title: Senior Program Manger\n \nSignature Date: June 17, 2005 Signature Date: 7/15/05\n1 Definition of Confidential Information and Exclusions\n(@ “Confidential Information” means nonpublic information that a party to this Agreement (“Disclosing Party”) designates as being\nconfidential to the party that receives such information (“Receiving Party”) or which, under the circumstances surrounding disclosure ought to be\ntreated as confidential by the Receiving Party. “Confidential Information” includes, without limitation, information in tangible or intangible form\nrelating to and/or including released or unreleased Disclosing Party software or hardware products, the marketing or promotion of any Disclosing\nParty product, Disclosing Party’s business policies or practices, and information received from others that Disclosing Party is obligated to treat as\nconfidential. Except as otherwise indicated in this Agreement, the term “Disclosing Party” also includes all Affiliates of the Disclosing Party and,\nexcept as otherwise indicated, the term “Receiving Party” also includes all Affiliates of the Receiving Party. An “Affiliate” means any person,\npartnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or\nindirectly, control, are controlled by, or are under common control with a party. Prior to the time that any Confidential Information is shared with an\nAffiliate who has not signed this Agreement, the Receiving Party that executed this Agreement below (the “Signhatory Receiving Party”) shall have\nentered into an appropriate written agreement with that Affiliate sufficient to enable the Disclosing Party and/or the Signatory Receiving Party to\nenforce all of the provisions of this Agreement against such Affiliate.\n(b) Confidential Information shall not include any information, however designated, that: (i) is or subsequently becomes publicly available\nwithout Receiving Party’s breach of any obligation owed Disclosing Party; (ii) became known to Receiving Party prior to Disclosing Party’s\ndisclosure of such information to Receiving Party pursuant to the terms of this Agreement; (iii) became known to Receiving Party from a source\nother than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party; (iv) is independently developed by\nReceiving Party; or (v) constitutes Feedback (as defined in Section 5 of this Agreement).\n32 MICROSOFT CONFIDENTIAL\n2. Obligations Regarding_Confidential Information\n(a) Receiving Party shall:\n() Refrain from disclosing any Confidential Information of the Disclosing Party to third parties for five (5) years following the\ndate that Disclosing Party first discloses such Confidential Information to Receiving Party, except as expressly provided in\nSections 2(b) and 2(c) of this Agreement;\n(i) Take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information,\nbut no less than reasonable care, to keep confidential the Confidential Information of the Disclosing Party;\n(i) Refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information of the Disclosing Party except\nin pursuance of Receiving Party’s business relationship with Disclosing Party, and only as otherwise provided hereunder;\nand\n(iv) Refrain from reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices\ndisclosed by Disclosing Party to Receiving Party under the terms of this Agreement, except as expressly permitted by\napplicable law.\n(b) Receiving Party may disclose Confidential Information of Disclosing Party in accordance with a judicial or other governmental order,\nprovided that Receiving Party either (i) gives the undersigned Disclosing Party reasonable noticeprior to such disclosure to allow Disclosing Party\na reasonable opportunity to seek a protective order or equivalent, or (ii) obtains written assurance from the applicable judicial or governmental\nentity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation. Notwithstanding the\nforegoing, the Receiving Party shall not disclose any computer source code that contains Confidential Information of the Disclosing Party in\naccordance with a judicial or other governmental order unless it complies with the requirement set forth in sub-section (i) of this Section 2(b).\n(c) The Signatory Receiving Party may disclose Confidential Information only to Receiving Party’s employees and consultants on a need-to-\nknow basis. The Receiving Party will have executed or shall execute appropriate written agreements with its employees and consultants sufficient\nto enable Receiving Party to enforce all the provisions of this Agreement.\n(d) Receiving Party shall notify the undersigned Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nConfidential Information or any other breach of this Agreement by Receiving Party and its employees and consultants, and will cooperate with\nDisclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further\nunauthorized use or disclosure.\n(e) Receiving Party shall, at Disclosing Party’s request, return all originals, copies, reproductions and summaries of Confidential Information\nand all other tangible materials and devices provided to the Receiving Party as Confidential Information, or at Disclosing Party’s option, certify\ndestruction of the same.\n3. Remedies. The parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential\nInformation and that Disclosing Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be\ndeemed proper by a court of competent jurisdiction.\n4. Miscellaneous\n(@)  All Confidential Information is and shall remain the property of Disclosing Party. By disclosing Confidential Information to Receiving\nParty, Disclosing Party does not grant any express or implied right to Receiving Party to or under any patents, copyrights, trademarks, or trade\nsecret information except as otherwise provided herein. Disclosing Party reserves without prejudice the ability to protect its rights under any such\npatents, copyrights, trademarks, or trade secrets except as otherwise provided herein.\n(b) In the event that the Disclosing Party provides any computer software and/or hardware to the Receiving Party as Confidential\nInformation under the terms of this Agreement, such computer software and/or hardware may only be used by the Receiving Party for evaluation\nand providing Feedback (as defined in Section 5 of this Agreement) to the Disclosing Party. Unless otherwise agreed by the Disclosing Party and\nthe Receiving Party, all such computer software and/or hardware is provided “AS IS” without warranty of any kind, and Receiving Party agrees that\nneither Disclosing Party nor its suppliers shall be liable for any damages whatsoever arising from or relating to Receiving Party’s use of or inability\nto use such software and/or hardware.\n(c) The parties agree to comply with all applicable international and national laws that apply to (i) any Confidential Information, or (ii) any\nproduct (or any part thereof), process or service that is the direct product of the Confidential Information, including the\n33 MICROSOFT CONFIDENTIAL\nU.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For\nadditional information on exporting Microsoft products, see http://www.microsoft.com/exporting/.\n(d)  The terms of confidentiality under this Agreement shall not be construed to limit either the Disclosing Party or the Receiving Party’s\nright to independently develop or acquire products without use of the other party’s Confidential Information. Further, the Receiving Party shall be\nfree to use for any purpose the residuals resulting from access to or work with the Confidential Information of the Disclosing Party, provided that\nthe Receiving Party shall not disclose the Confidential Information except as expressly permitted pursuant to the terms of this Agreement. The\nterm “residuals” means information in intangible form, which is retained in memory by persons who have had access to the Confidential\nInformation, including ideas, concepts, know-how or techniques contained therein. The Receiving Party shall not have any obligation to limit or\nrestrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals. However, this sub-paragraph shall not\nbe deemed to grant to the Receiving Party a license under the Disclosing Party’s copyrights or patents.\n(e) None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of Disclosing\nParty, the Receiving Party, their agents, or employees, but only by an instrument in writing signed by an authorized employee of Disclosing Party\nand the Receiving Party. No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision\non another occasion.\n(f)  If either Disclosing Party or the Receiving Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the\nprevailing party shall be entitled to recover reasonable attorneys’ fees and costs. This Agreement shall be construed and controlled by the laws of\nthe State of Washington, and the parties further consent to exclusive jurisdiction and venue in the federal courts sitting in King County,\nWashington, unless no federal subject matter jurisdiction exists, in which case the parties consent to the exclusive jurisdiction and venue in the\nSuperior Court of King County, Washington. Company waives all defenses of lack of personal jurisdiction and forum non conveniens. Process may\nbe served on either party in the manner authorized by applicable law or court rule.\n(9) This Agreement shall be binding upon and inure to the benefit of each party’s respective successors and lawful assigns; provided,\nhowever, that neither party may assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise), in whole or\nin part, without the prior written approval of the other party. Any attempted assignment in violation of this Section shall be void.\n(h) If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the\nremaining provisions shall remain in full force and effect.\n(i) Either party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party sent to the\naddress listed above (and if to Microsoft, with a cc to “Law & Corporate Affairs, attn.. NDA, LCA Records. All sections of this Agreement shall\nsurvive any such termination.\n(k) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. It shall not be modified\nexcept by written agreement dated subsequent to the date of this Agreement and signed on behalf of the parties by their respective duly\nauthorized representatives.\n5. Suggestions and Feedback. The Receiving Party may from time to time provide suggestions, comments or other feedback (“Feedback”) to\nthe Disclosing Party with respect to Confidential Information provided originally by the Disclosing Party. Both parties agree that all Feedback is and\nshall be given entirely voluntarily. Feedback, even if designated as confidential by the party offering the Feedback, shall not, absent a separate\nwritten agreement, create any confidentiality obligation for the receiver of the Feedback. Receiving Party will not give Feedback that is subject to\nlicense terms that seek to require any Disclosing Party product, technology, service or documentation incorporating or derived from such\nFeedback, or any Disclosing Party intellectual property, to be licensed or otherwise shared with any third party. Furthermore, except as otherwise\nprovided herein or in a separate subsequent written agreement between the parties, the receiver of the Feedback shall be free to use, disclose,\nreproduce, license or otherwise distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind\non account of intellectual property rights or otherwise.\n34 MICROSOFT CONFIDENTIAL	EXHIBIT 5\nNON-DISCLOSURE FORM\nMICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (the "Agreement") is made and entered into as of the later of the two signature dates below.\nCOMPANY: ELECTRONIC ARTS\nMICROSOFT CORPORATION\nAddress: 1900-250 Howe Street\nOne Microsoft Way\nVancouver,\nRedmond, WA 98052-6399\nV6C 3R8\nSign: /s/ Paul Roberts\nSign: Is/ Sue Grinius-Hill\nPrint Name: Paul Roberts\nPrint Name: Sue Grinius-Hill\nPrint Title: Director, World Wide Studios\nPrint Title: Senior Program Manger\nSignature Date: June 17, 2005\nSignature Date: 7/15/05\n1\nDefinition of Confidential Information and Exclusions\n(a)\n"Confidential Information" means nonpublic information that a party to this Agreement ("Disclosing Party") designates as being\nconfidential to the party that receives such information ("Receiving Party") or which, under the circumstances surrounding disclosure ought to be\ntreated as confidential by the Receiving Party. "Confidential Information" includes, without limitation, information in tangible or intangible form\nrelating\nto\nand/or including released or unreleased Disclosing Party software or hardware products, the marketing or promotion of any Disclosing\nParty product, Disclosing Party's business policies or practices, and information received from others that Disclosing Party is obligated to treat as\nconfidential. Except as otherwise indicated in this Agreement, the term "Disclosing Party" also includes all Affiliates of the Disclosing Party and,\nexcept as otherwise indicated, the term "Receiving Party" also includes all Affiliates of the Receiving Party. An "Affiliate" means any person\npartnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or\nindirectly, control, are controlled by, or are under common control with a party. Prior to the time that any Confidential Information is shared with an\nAffiliate who has not signed this Agreement, the Receiving Party that executed this Agreement below (the "Signatory Receiving Party") shall have\nentered into an appropriate written agreement with that Affiliate sufficient to enable the Disclosing Party and/or the Signatory Receiving Party\nto\nenforce all of the provisions of this Agreement against such Affiliate.\n(b) Confidential Information shal not include any information, however designated, that: (i) is or subsequently becomes publicly available\nwithout Receiving Party's breach of any obligation owed Disclosing Party; (ii) became known to Receiving Party prior to Disclosing Party's\ndisclosure of such information to Receiving Party pursuant to the terms of this Agreement; (iii) became known to Receiving Party from a source\nother than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party; (iv) is independently developed\nby\nReceiving Party; or (v) constitutes Feedback (as defined in Section 5 of this Agreement).\n32\nMICROSOFT CONFIDENTIAL\n2.\nObligations Regarding. rding. Confidentia Information\n(a) Receiving Party shall:\n(i)\nRefrain from disclosing any Confidentia Information of the Disclosing Party to third parties for five (5) years following the\ndate that Disclosing Party first discloses such Confidential Information to Receiving Party, except as expressly provided in\nSections 2(b) and 2(c) of this Agreement;\n(ii)\nTake reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information,\nbut no less than reasonable care, to keep confidentia the Confidential Information of the Disclosing Party;\n(iii) Refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information of the Disclosing Party except\nin pursuance of Receiving Party's business relationship with Disclosing Party, and only as otherwise provided hereunder;\nand\n(iv) Refrain from reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices\ndisclosed by Disclosing Party to Receiving Party under the terms of this Agreement, except as expressly permitted by\napplicable law.\n(b) Receiving Party may disclose Confidential Information of Disclosing Party in accordance with a judicial or other governmental order,\nprovided\nthat\nReceiving\nParty\neither\n(i)\ngives\nthe\nundersigned\nDisclosing\nParty\nreasonable\nnoticeprior\nto\nsuch\ndisclosure\nto\nallow\nDisclosing\nParty\na reasonable opportunity to seek a protective order or equivalent, or (ii) obtains written assurance from the applicable judicia or governmental\nentity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation. Notwithstanding the\nforegoing, the Receiving Party shal not disclose any computer source code that contains Confidential Information of the Disclosing Party in\naccordance with a judicial or other governmental order unless it complies with the requirement set forth in sub-section (i) of this Section 2(b).\n(c) The Signatory Receiving Party may disclose Confidential Information only to Receiving Party's employees and consultants on a need-to-\nknow basis. The Receiving Party will have executed or shall execute appropriate written agreements with its employees and consultants sufficient\nto enable Receiving Party to enforce all the provisions of this Agreement.\n(d)\nReceiving\nParty\nshall\nnotify\nthe\nundersigned\nDisclosing\nParty\nimmediately\nupon\ndiscovery\nof\nany\nunauthorized\nuse\nor\ndisclosure\nof\nConfidential Information or any other breach of this Agreement by Receiving Party and its employees and consultants, and will cooperate with\nDisclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further\nunauthorized use or disclosure.\n(e) Receiving Party shall, at Disclosing Party's request, return all originals, copies, reproductions and summaries of Confidential Information\nand\nall other tangible materials and devices provided to the Receiving Party as Confidential Information, or at Disclosing Party's option, certify\ndestruction of the same.\n3. Remedies. The parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential\nInformation and that Disclosing Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be\ndeemed proper by a court of competent jurisdiction.\n4. Miscellaneous\n(a) All Confidential Information is and shall remain the property of Disclosing Party. By disclosing Confidential Information to Receiving\nParty,\nDisclosing\nParty\ndoes\nnot\ngrant\nany\nexpress\nor\nimplied\nright\nto\nReceiving\nParty\nto\nor\nunder\nany\npatents,\ncopyrights,\ntrademarks\nor\ntrade\nsecret information except as otherwise provided herein. Disclosing Party reserves without prejudice the ability to protect its rights under any such\npatents, copyrights, trademarks, or trade secrets except as otherwise provided herein.\n(b) In the event that the Disclosing Party provides any computer software and/or hardware to the Receiving Party as Confidential\nInformation under the terms of this Agreement, such computer software and/or hardware may only be used by the Receiving Party for evaluation\nand providing Feedback (as defined in Section 5 of this Agreement) to the Disclosing Party. Unless otherwise agreed by the Disclosing Party and\nthe\nReceiving Party, all such computer software and/or hardware is provided "AS IS" without warranty of any kind, and Receiving Party agrees that\nneither Disclosing Party nor its suppliers shall be liable for any damages whatsoever arising from or relating to Receiving Party's use of or inability\nto use such software and/or hardware.\n(c)\nThe parties agree to comply with all applicable international and national laws that apply to (i) any Confidential Information, or (ii) any\nproduct (or any part thereof), process or service that is the direct product of the Confidential Information, including the\n33\nMICROSOFT CONFIDENTIAL\nU.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For\nadditional information on exporting Microsoft products, see http:l/www.microsoft.com/exportingl\n(d) The terms of confidentiality under this Agreement shall not be construed to limit either the Disclosing Party or the Receiving Party's\nright to independently develop or acquire products without use of the other party's Confidential Information. Further, the Receiving Party shall be\nfree to use for any purpose the residuals resulting from access to or work with the Confidential Information of the Disclosing Party, provided that\nthe\nReceiving Party shall not disclose the Confidential Information except as expressly permitted pursuant to the terms of this Agreement. The\nterm "residuals" means information in intangible form, which is retained in memory by persons who have had access to the Confidential\nInformation, including ideas, concepts, know-how or techniques contained therein. The Receiving Party shall not have any obligation to limit or\nrestrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals. However, this sub-paragraph shall not\nbe deemed to grant to the Receiving Party a license under the Disclosing Party's copyrights or patents.\n(e) None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of Disclosing\nParty, the Receiving Party, their agents, or employees, but only by an instrument in writing signed by an authorized employee of Disclosing Party\nand the Receiving Party. No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision\non another occasion.\n(f) If either Disclosing Party or the Receiving Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the\nprevailing party shall be entitled to recover reasonable attorneys' fees and costs. This Agreement shall be construed and controlled by the laws of\nthe State of Washington, and the parties further consent to exclusive jurisdiction and venue in the federal courts sitting in King County,\nWashington,\nunless\nno\nfederal\nsubject\nmatter\njurisdiction\nexists,\nin\nwhich\ncase\nthe\nparties\nconsent\nto\nthe\nexclusive\njurisdiction\nand\nvenue\nin\nthe\nSuperior Court of King County, Washington. Company waives all defenses of lack of persona jurisdiction and forum non conveniens. Process may\nbe served on either party in the manner authorized by applicable law or court rule.\n(g) This Agreement shall be binding upon and inure to the benefit of each party's respective successors and lawful assigns; provided,\nhowever, that neither party may assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise), in whole or\nin part, without the prior written approval of the other party. Any attempted assignment in violation of this Section shall be void.\n(h)\nIf any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the\nremaining provisions shall remain in full force and effect.\n(i) Either party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party sent to the\naddress listed above (and if to Microsoft, with a cc to "Law & Corporate Affairs, attn.. NDA, LCA Records. All sections of this Agreement shall\nsurvive any such termination.\n(k)\nThis Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. It shall not be modified\nexcept by written agreement dated subsequent to the date of this Agreement and signed on behalf of the parties by their respective duly\nauthorized representatives.\n5.\nSuggestions and Feedback. The Receiving Party may from time to time provide suggestions, comments or other feedback ("Feedback") to\nthe Disclosing Party with respect to Confidential Information provided originally by the Disclosing Party. Both parties agree that all Feedback is and\nshall be given entirely voluntarily. Feedback, even if designated as confidential by the party offering the Feedback, shall not, absent a separate\nwritten agreement, create any confidentiality obligation for the receiver of the Feedback. Receiving Party will not give Feedback that is subject to\nlicense terms that seek to require any Disclosing Party product, technology, service or documentation incorporating or derived from such\nFeedback, or any Disclosing Party intellectual property, to be licensed or otherwise shared with any third party. Furthermore, except as otherwise\nprovided herein or in a separate subsequent written agreement between the parties, the receiver of the Feedback shall be free to use, disclose,\nreproduce, license or otherwise distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any\nkind\non account of intellectual property rights or otherwise.\n34\nMICROSOFT CONFIDENTIAL	EXHIBIT 5\nNON-DISCLOSURE FORM\nMICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (the “Agreement”) is made and entered into as of the later of the two signature dates below.\nCOMPANY: ELECTRONIC ARTS\nMICROSOFT CORPORATION\nAddress: 1900-250 Howe Street\nVancouver,\nV6C 3R8\nOne Microsoft Way\nRedmond, WA 98052-6399\nSign: /s/ Paul Roberts\nSign: /s/ Sue Grinius-Hill\nPrint Name: Paul Roberts\nPrint Name: Sue Grinius-Hill\nPrint Title: Director, World Wide Studios\nPrint Title: Senior Program Manger\nSignature Date: June 17, 2005\nSignature Date: 7/15/05\n1\nDefinition of Confidential Information and Exclusions\n(a)\n“Confidential Information” means nonpublic information that a party to this Agreement (“Disclosing Party”) designates as being\nconfidential to the party that receives such information (“Receiving Party”) or which, under the circumstances surrounding disclosure ought to be\ntreated as confidential by the Receiving Party. “Confidential Information” includes, without limitation, information in tangible or intangible form\nrelating to and/or including released or unreleased Disclosing Party software or hardware products, the marketing or promotion of any Disclosing\nParty product, Disclosing Party’s business policies or practices, and information received from others that Disclosing Party is obligated to treat as\nconfidential. Except as otherwise indicated in this Agreement, the term “Disclosing Party” also includes all Affiliates of the Disclosing Party and,\nexcept as otherwise indicated, the term “Receiving Party” also includes all Affiliates of the Receiving Party. An “Affiliate” means any person,\npartnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or\nindirectly, control, are controlled by, or are under common control with a party. Prior to the time that any Confidential Information is shared with an\nAffiliate who has not signed this Agreement, the Receiving Party that executed this Agreement below (the “Signatory Receiving Party”) shall have\nentered into an appropriate written agreement with that Affiliate sufficient to enable the Disclosing Party and/or the Signatory Receiving Party to\nenforce all of the provisions of this Agreement against such Affiliate.\n(b) Confidential Information shall not include any information, however designated, that: (i) is or subsequently becomes publicly available\nwithout Receiving Party’s breach of any obligation owed Disclosing Party; (ii) became known to Receiving Party prior to Disclosing Party’s\ndisclosure of such information to Receiving Party pursuant to the terms of this Agreement; (iii) became known to Receiving Party from a source\nother than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party; (iv) is independently developed by\nReceiving Party; or (v) constitutes Feedback (as defined in Section 5 of this Agreement).\n32\nMICROSOFT CONFIDENTIAL\n2.\nObligations Regarding Confidential Information\n(a) Receiving Party shall:\n(i) Refrain from disclosing any Confidential Information of the Disclosing Party to third parties for five (5) years following the\ndate that Disclosing Party first discloses such Confidential Information to Receiving Party, except as expressly provided in\nSections 2(b) and 2(c) of this Agreement;\n(ii) Take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information,\nbut no less than reasonable care, to keep confidential the Confidential Information of the Disclosing Party;\n(iii) Refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information of the Disclosing Party except\nin pursuance of Receiving Party’s business relationship with Disclosing Party, and only as otherwise provided hereunder;\nand\n(iv) Refrain from reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices\ndisclosed by Disclosing Party to Receiving Party under the terms of this Agreement, except as expressly permitted by\napplicable law.\n(b) Receiving Party may disclose Confidential Information of Disclosing Party in accordance with a judicial or other governmental order,\nprovided that Receiving Party either (i) gives the undersigned Disclosing Party reasonable noticeprior to such disclosure to allow Disclosing Party\na reasonable opportunity to seek a protective order or equivalent, or (ii) obtains written assurance from the applicable judicial or governmental\nentity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation. Notwithstanding the\nforegoing, the Receiving Party shall not disclose any computer source code that contains Confidential Information of the Disclosing Party in\naccordance with a judicial or other governmental order unless it complies with the requirement set forth in sub-section (i) of this Section 2(b).\n(c) The Signatory Receiving Party may disclose Confidential Information only to Receiving Party’s employees and consultants on a need-to-\nknow basis. The Receiving Party will have executed or shall execute appropriate written agreements with its employees and consultants sufficient\nto enable Receiving Party to enforce all the provisions of this Agreement.\n(d) Receiving Party shall notify the undersigned Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nConfidential Information or any other breach of this Agreement by Receiving Party and its employees and consultants, and will cooperate with\nDisclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further\nunauthorized use or disclosure.\n(e) Receiving Party shall, at Disclosing Party’s request, return all originals, copies, reproductions and summaries of Confidential Information\nand all other tangible materials and devices provided to the Receiving Party as Confidential Information, or at Disclosing Party’s option, certify\ndestruction of the same.\n3. Remedies. The parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential\nInformation and that Disclosing Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be\ndeemed proper by a court of competent jurisdiction.\n4. Miscellaneous\n(a) All Confidential Information is and shall remain the property of Disclosing Party. By disclosing Confidential Information to Receiving\nParty, Disclosing Party does not grant any express or implied right to Receiving Party to or under any patents, copyrights, trademarks, or trade\nsecret information except as otherwise provided herein. Disclosing Party reserves without prejudice the ability to protect its rights under any such\npatents, copyrights, trademarks, or trade secrets except as otherwise provided herein.\n(b) In the event that the Disclosing Party provides any computer software and/or hardware to the Receiving Party as Confidential\nInformation under the terms of this Agreement, such computer software and/or hardware may only be used by the Receiving Party for evaluation\nand providing Feedback (as defined in Section 5 of this Agreement) to the Disclosing Party. Unless otherwise agreed by the Disclosing Party and\nthe Receiving Party, all such computer software and/or hardware is provided “AS IS” without warranty of any kind, and Receiving Party agrees that\nneither Disclosing Party nor its suppliers shall be liable for any damages whatsoever arising from or relating to Receiving Party’s use of or inability\nto use such software and/or hardware.\n(c) The parties agree to comply with all applicable international and national laws that apply to (i) any Confidential Information, or (ii) any\nproduct (or any part thereof), process or service that is the direct product of the Confidential Information, including the\n33\nMICROSOFT CONFIDENTIAL\nU.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For\nadditional information on exporting Microsoft products, see http://www.microsoft.com/exporting/.\n(d) The terms of confidentiality under this Agreement shall not be construed to limit either the Disclosing Party or the Receiving Party’s\nright to independently develop or acquire products without use of the other party’s Confidential Information. Further, the Receiving Party shall be\nfree to use for any purpose the residuals resulting from access to or work with the Confidential Information of the Disclosing Party, provided that\nthe Receiving Party shall not disclose the Confidential Information except as expressly permitted pursuant to the terms of this Agreement. The\nterm “residuals” means information in intangible form, which is retained in memory by persons who have had access to the Confidential\nInformation, including ideas, concepts, know-how or techniques contained therein. The Receiving Party shall not have any obligation to limit or\nrestrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals. However, this sub-paragraph shall not\nbe deemed to grant to the Receiving Party a license under the Disclosing Party’s copyrights or patents.\n(e) None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of Disclosing\nParty, the Receiving Party, their agents, or employees, but only by an instrument in writing signed by an authorized employee of Disclosing Party\nand the Receiving Party. No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision\non another occasion.\n(f) If either Disclosing Party or the Receiving Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the\nprevailing party shall be entitled to recover reasonable attorneys’ fees and costs. This Agreement shall be construed and controlled by the laws of\nthe State of Washington, and the parties further consent to exclusive jurisdiction and venue in the federal courts sitting in King County,\nWashington, unless no federal subject matter jurisdiction exists, in which case the parties consent to the exclusive jurisdiction and venue in the\nSuperior Court of King County, Washington. Company waives all defenses of lack of personal jurisdiction and forum non conveniens. Process may\nbe served on either party in the manner authorized by applicable law or court rule.\n(g) This Agreement shall be binding upon and inure to the benefit of each party’s respective successors and lawful assigns; provided,\nhowever, that neither party may assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise), in whole or\nin part, without the prior written approval of the other party. Any attempted assignment in violation of this Section shall be void.\n(h)\nIf any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the\nremaining provisions shall remain in full force and effect.\n(i) Either party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party sent to the\naddress listed above (and if to Microsoft, with a cc to “Law & Corporate Affairs, attn.. NDA, LCA Records. All sections of this Agreement shall\nsurvive any such termination.\n(k) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. It shall not be modified\nexcept by written agreement dated subsequent to the date of this Agreement and signed on behalf of the parties by their respective duly\nauthorized representatives.\n5. Suggestions and Feedback. The Receiving Party may from time to time provide suggestions, comments or other feedback (“Feedback”) to\nthe Disclosing Party with respect to Confidential Information provided originally by the Disclosing Party. Both parties agree that all Feedback is and\nshall be given entirely voluntarily. Feedback, even if designated as confidential by the party offering the Feedback, shall not, absent a separate\nwritten agreement, create any confidentiality obligation for the receiver of the Feedback. Receiving Party will not give Feedback that is subject to\nlicense terms that seek to require any Disclosing Party product, technology, service or documentation incorporating or derived from such\nFeedback, or any Disclosing Party intellectual property, to be licensed or otherwise shared with any third party. Furthermore, except as otherwise\nprovided herein or in a separate subsequent written agreement between the parties, the receiver of the Feedback shall be free to use, disclose,\nreproduce, license or otherwise distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind\non account of intellectual property rights or otherwise.\n34\nMICROSOFT CONFIDENTIAL
3042966debef200a0d2be55ce16ee07e.pdf	effective_date jurisdiction party term	NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this “Agreement”) is entered into and made effective as of the date of the last signature\nbelow (the “Effective Date”), by and between Santander Consumer USA Inc. (“SC”) on behalf of the corporation, its operating\ndivisions, parent company, and its majority-owned subsidiaries, and (insert candidate name) (the “Associate”).\nRECITALS\nA.\nIn the course of Associate’s employment with SC, Associate may have access to certain non-public proprietary\ninformation regarding, among others, SC, its Affiliates, their respective businesses, operations, personnel, finances or customers\n(collectively, “Confidential Information”, as further defined below), that Associate shall protect, such Confidential Information, as\nset forth in this Agreement.\nB.\nSC will share such Confidential Information with Associate solely to enable such Associate to perform its\nobligations under its employment with SC (the “Purpose”).\nNOW, THEREFORE, in consideration of the Associate’s employment by SC, and for other good and valuable\nconsideration, the receipt and adequacy of which the Associate acknowledges to be good and valuable consideration for [his/her]\nobligations hereunder, the parties hereto, intending to be legally bound, hereby agree as follows:\n1.\nDefinitions. The following terms shall have the definitions so provided when used in this Agreement:\n“Confidential Information” shall mean all information of any kind whatsoever, whether communicated orally or\nembodied in any medium or electronic format, concerning SC and/or any SC Affiliate, their respective businesses and\nConsumers (as defined herein), which is created, collected, obtained, used, maintained, stored or accessed by, or\ndisclosed to, Associate by or on behalf of SC and/or any SC Affiliate in connection with the Purpose, and shall include,\nwithout limitation, Customer Information (as defined herein), Nonpublic Personal Information (as defined herein), and\nThird Party Vendor Confidential Information (as defined herein), together with any documents, reports, analyses, or\nmaterials reflecting based on or containing any of the foregoing. Notwithstanding the foregoing, Confidential\nInformation shall not include: publicly available information, except to the extent such information is included on a list,\ndescription or other grouping of SC Consumers (and publicly available information pertaining to them) that is derived\nusing any individually identifiable information that is not publicly available.\n“Consumer” shall mean any individual or entity that seeks to obtain, obtains or has obtained a financial product or\nservice from SC and/or any SC Affiliate including, without limitation, any individual, trust or business customer.\n“Customer Information” shall have the meaning assigned to such term in 16 C.F.R. Part 314, as amended from time to\ntime.\n“Nonpublic Personal Information” shall have the meaning assigned to such term in 16 C.F.R. § 313.3, as amended\nfrom time to time.\n“Privacy Laws” shall mean the Gramm-Leach-Bliley Act (15 U.S .C. §§ 6801 et seq.), as it may be in effect and as\namended from time to time, and the regulations promulgated thereunder (including, without limitation, the provisions of\n16 C.F.R. Part 313 and 16 C.F.R. Part 314) (collectively, “GLBA”), and all other state and federal laws and regulations\npertaining to the privacy, confidentiality or security of information created, collected, obtained, used, maintained,\nstored, accessed, disclosed or transferred by a financial institution, and all administrative and court decisions, policies,\nguidelines and procedures relating thereto, as may be in effect and as amended from time to time.\n“SC Affiliates” shall mean any person or entity which directly, or indirectly through one or more intermediaries, owns or\ncontrols, is owned or controlled by, or is under common control or ownership with SC or its ultimate parent, where\n“control” means the possession, directly or indirectly, or the power to direct or cause the direction of the management\npolicies of a person, whether through the ownership of voting securities, by contract or otherwise.\n“Third Party Vendor” shall mean any vendor that performs services or functions for, or provides products or software\nto, SC and/or any SC Affiliate.\n“Third Party Vendor Confidential Information” shall mean all information pertaining to a Third Party Vendor and its\nservices, functions, products or software, which has been disclosed by or on behalf of such Third Party Vendor to SC\nand/or any SC Affiliate.\n2.\nIncorporation of Recitals. The Recitals are incorporated herein and made a part of this agreement.\n3.\nOwnership. All SC’s Confidential Information is and shall remain SC's property, and no rights to it are granted to\nAssociate under this Agreement.\n4.\nUse of Confidential Information.\na) Associate agrees to use Confidential Information solely for the Purpose, for the exclusive use and benefit of SC\nand for no other purpose at any time whatsoever;\nb) Without limitation of the restrictions on use set forth in Section 4(a) above, or the other restrictions of this\nAgreement, Associate shall in all events refrain from, and shall cause any third party to whom Associate discloses\nSC’s Confidential Information to refrain from, directly or indirectly, (i) utilizing Confidential Information in its or their own\nbusiness, (ii) using any Confidential Information in connection with the solicitation of any Consumer for any financial\nrelated product or service or in connection with the recommendation, sale or provision to any Consumer of any\nfinancial related product or service; and\nc) Associate shall use at least a reasonable degree of care to protect the Confidential Information from unauthorized\ndisclosure.\n5.\nDisclosure of Confidential Information. Associate agrees not to disclose any Confidential Information to any\nperson or entity at any time, now or hereafter, except that Associate may disclose Confidential Information to those directors,\nofficers, agents, employees and/or other representatives, including accountants, consultants and financial advisors (collectively\n“Representatives”) who need to know such information for the sole purpose of enabling Associate to carry out the uses specified\nin Section 4, above, and for no other purpose at any time, and who are bound by confidentiality obligations at least as stringent as\nthose set forth in this Agreement. In all events, Associate shall be liable to SC and the SC Affiliates for any misuse or wrongful\ndisclosure of, or other wrongful dealings with Confidential Information and any other breach of this Agreement by Associate, its\nRepresentatives and any third party to whom Associate discloses SC’s Confidential Information. Furthermore, any Confidential\nInformation disclosed to or accessed by any Representative, as a result of Associate acting outside the scope of the limitations\nset forth in section 4 above, shall be deemed to have been disclosed to or accessed by Associate.\n6.\nInformation Security Program. Associate shall use commercially reasonable measures to protect SC’s\nConfidential Information, and comply with SC’s controls to ensure the confidentiality of Confidential Information and that\nConfidential Information is not disclosed contrary to the provisions of this Agreement, GLBA or any other applicable Privacy Laws.\nWithout limiting the foregoing, Associate shall comply with SC’s information security program that includes appropriate\nadministrative, technical and physical safeguards and other security measures that are designed to:\n(i) ensure the security and confidentiality of Confidential Information;\n(ii) protect against any anticipated threats or hazards to the security and integrity of Confidential Information; and\n(iii)\nprotect against unauthorized access to or use of Confidential Information that could result in substantial\nharm or inconvenience to any SC Consumer.\n7.\nNotification of Breach. Associate shall immediately notify SC in writing of any breach of this Agreement or any\nunauthorized use or disclosure of, or access to, Confidential Information of which Associate becomes aware. Such notice shall\nsummarize in reasonable detail the effect on SC of the breach or unauthorized use or disclosure of, or access to, Confidential\nInformation and Associate shall take any corrective action or measure directed by SC.\n8.\nPublicity. Associate hereby consents to any and all uses and displays, by SC and SC Affiliates, of the Associate’s\nname, voice, likeness, image, appearance, and biographical information in, on or in connection with any pictures, photographs,\naudio, and video recordings, digital images, websites, television programs, and advertising, other advertising, sales, and\nmarketing brochures, books, magazines, other publications, CDs, DVDs, tapes, and all other printed and electronic forms and\nmedia throughout the world, at any time during or after the period of [his/her] employment by SC, for all legitimate business\npurposes of SC and SC Affiliates ("Permitted Uses"). Employee hereby forever releases SC and its directors, officers,\nemployees, and Affiliates from any and all claims, actions, damages, losses, costs, expenses, and liability of any kind, arising\nunder any legal or equitable theory whatsoever at any time during or after the period of [his/her] employment by the Employer, in\nconnection with any Permitted Use.\n9.\nConfidential Information of Third Party Vendors. During the course of Associate’s employment with SC,\nAssociate may have access to Third Party Vendor Confidential Information. If a Third Party Vendor imposes restrictions or\nlimitations with respect to such information that are more stringent than those set forth in this Agreement, including, without\nlimitation, additional restrictions applicable to software code, promptly following a written request from SC (which request shall\ninclude a reasonably detailed description of such restrictions or limitations), Associate shall execute and deliver to SC a written\ninstrument, in favor of SC and the applicable Third Party Vendor, in the form provided by SC, to evidence and confirm Associate’s\nagreement to comply with such restrictions or limitations.\n10.\nDisposition of Confidential Information; Survival. At employment termination or earlier at any time upon SC’s\nrequest, Associate shall, as SC may direct, either immediately return to SC or destroy, all originals and copies in all media of all\nConfidential Information which at any time was disclosed to and/or obtained by Associate.\n11.\nInjunctive Relief. Associate agrees that any use or disclosure of Confidential Information in violation of this\nAgreement or any applicable Privacy Law may cause immediate and irreparable harm to SC or the SC Affiliates, for which money\ndamages may not constitute an adequate remedy. Therefore, Associate agrees that SC and the SC Affiliates may obtain\ninjunctive and other equitable relief in addition to its remedies at law without posting a bond or proof of actual damages. Such\nremedy shall not be deemed to be the exclusive remedy for breach of this Agreement but shall be in addition to all other remedies\navailable at law or equity. Associate agrees to reimburse SC costs and expenses (including, without limitation, attorneys' fees)\nincurred by SC in connection with the enforcement of this Agreement.\n12.\nIndemnification. Associate agrees to indemnify, defend and hold harmless SC and the SC Affiliates, and their\nrespective officers, directors, employees, agents, successors and assigns, from and against any and all losses, liabilities,\ndamages, and claims and all related costs and expenses, including reasonable attorneys’ fees, incurred by SC or the SC Affiliates\narising from or in connection with any breach by Associate, its Representatives or any third party to whom Associate discloses\nany SC Confidential information pursuant to section 5, of any provision of this Agreement or violation of any Privacy Law.\n13.\nLegally Required Disclosures. Associate shall immediately notify SC in writing of any subpoena or other court\nor administrative order or proceeding seeking access to or disclosure of\nConfidential Information, provided that the giving of such notice is permitted by law, so that SC may seek an appropriate\nprotective order. If in the absence of a protective order, Associate is nonetheless required by law or compelled to disclose\nConfidential Information or other information concerning SC, disclosure may be made only as to that portion of the Confidential\nInformation or such other information which Associate is legally required or compelled to be disclosed. Associate agrees to\nexercise best efforts to obtain assurance that confidential treatment will be accorded such Confidential Information.\n14.\nConfidentiality of this Agreement. Associate acknowledges that the terms of this Agreement are and shall\nremain confidential. The foregoing shall not prohibit disclosure by Associate of the terms of this Agreement to Associate’s\nindependent public accountants, counsel and/or other professional advisers on a "need to know" basis; provided, however, that\nsuch persons have been advised of this Agreement and agree to comply in writing herewith to the full extent permitted by law.\n15.\nInsider Trading. Associate hereby acknowledges that Associate is aware that the US securities laws prohibit\nany person who has received from an issuer material, non-public information concerning the matters that are the subject of this\nAgreement, from purchasing or selling securities of such issuer or from communicating such information to any other person\nunder circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\nTherefore, Associate agrees that Associate will not trade in the securities of SC until such time and under such circumstances as\nit may do so under the applicable securities laws.\n16.\nSuccessors and Assigns. This Agreement shall be binding upon the parties hereto and their respective\nsuccessors and assigns and shall inure to the benefit of the parties hereto and their respective successors and assigns.\n17.\nEffect of Waiver. No failure or delay in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any\nother right, power or privilege hereunder.\n18.\nEntire Agreement. Unless specifically provided herein, this Agreement contains all the understandings and\nrepresentations between the Associate and SC pertaining to the subject matter hereof and supersedes all prior and\ncontemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such\nsubject matter.\n19.\nAmendment. No provision of this Agreement may be amended or modified unless such amendment or\nmodification is agreed to in writing and signed by the Associate and by a duly authorized officer of SC.\n20.\nSeverability. If any provision of this Agreement is not enforceable in whole or in part, the remaining provisions of\nthis Letter Agreement shall not be affected thereby.\n21.\nApplicability of Agreement. This Agreement shall apply to Confidential Information whether disclosed to or\naccessed by Associate prior to, on and/or after the Effective Date of this Agreement.\n22.\nCounterparts. This Agreement may be executed in multiple counterparts, each of which will be deemed an\noriginal, but all of which together shall constitute one and the same instrument. Delivery by facsimile of an executed counterpart\nof a signature page to this Agreement shall be as effective as delivery by traditional methods.\n23.\nAcknowledgment. Nothing in this Agreement shall be construed to in any way terminate, supersede,\nundermine, or otherwise modify the at-will status of the employment relationship between SC and the Associate, pursuant to\nwhich either SC or the Associate may terminate the employment relationship at any time, with or without cause, with or without\nnotice.\n24.\nGoverning Law and Venue. This Agreement shall be governed by, construed and enforced under the laws of\nthe State of Texas as it is applied to agreements entered into and to be performed entirely within such State. The parties hereby\nagree that any action arising out of this Agreement shall be brought in the state or federal courts located in Dallas County, Texas,\nfurther\nirrevocably submit to the exclusive jurisdiction of any such court and waive any objection that such party may now or hereafter\nhave to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an\ninconvenient court, and further agree not to plead or claim the same.\nIN WITNESS WHEREOF, each party has caused this Non-Disclosure Agreement to be executed by one of its duly\nauthorized representatives under seal as of the Effective Date.\nSantander Consumer USA Inc.\nBy: /s/ Mikenzie Sari\nName: Mikenzie Sari\nTitle: Chief Human Resources Officer\nDate: __7/23/2019______________\nAssociate\nBy: /s/ Fahmi Karam\nName: Fahmi Karam\nDate:___7/23/2019______________	NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this “Agreement”) is entered into and made effective as of the date of the last signature\nbelow (the “Effective Date”), by and between Santander Consumer USA Inc. (“SC”) on behalf of the corporation, its operating\ndivisions, parent company, and its majority-owned subsidiaries, and (insert candidate name) (the “Associate”).\nRECITALS\nA. In the course of Associate’'s employment with SC, Associate may have access to certain non-public proprietary\ninformation regarding, among others, SC, its Affiliates, their respective businesses, operations, personnel, finances or customers\n(collectively, “Confidential Information”, as further defined below), that Associate shall protect, such Confidential Information, as\nset forth in this Agreement.\nB. SC will share such Confidential Information with Associate solely to enable such Associate to perform its\nobligations under its employment with SC (the “Purpose”).\nNOW, THEREFORE, in consideration of the Associate’s employment by SC, and for other good and valuable\nconsideration, the receipt and adequacy of which the Associate acknowledges to be good and valuable consideration for [his/her]\nobligations hereunder, the parties hereto, intending to be legally bound, hereby agree as follows:\n1. Definitions. The following terms shall have the definitions so provided when used in this Agreement:\n“Confidential Information” shall mean all information of any kind whatsoever, whether communicated orally or\nembodied in any medium or electronic format, concerning SC and/or any SC Affiliate, their respective businesses and\nConsumers (as defined herein), which is created, collected, obtained, used, maintained, stored or accessed by, or\ndisclosed to, Associate by or on behalf of SC and/or any SC Affiliate in connection with the Purpose, and shall include,\nwithout limitation, Customer Information (as defined herein), Nonpublic Personal Information (as defined herein), and\nThird Party Vendor Confidential Information (as defined herein), together with any documents, reports, analyses, or\nmaterials reflecting based on or containing any of the foregoing. Notwithstanding the foregoing, Confidential\nInformation shall not include: publicly available information, except to the extent such information is included on a list,\ndescription or other grouping of SC Consumers (and publicly available information pertaining to them) that is derived\nusing any individually identifiable information that is not publicly available.\n“Consumer” shall mean any individual or entity that seeks to obtain, obtains or has obtained a financial product or\nservice from SC and/or any SC Affiliate including, without limitation, any individual, trust or business customer.\n“Customer Information” shall have the meaning assigned to such term in 16 C.F.R. Part 314, as amended from time to\ntime.\n“Nonpublic Personal Information” shall have the meaning assigned to such term in 16 C.FR. § 313.3, as amended\nfrom time to time.\n“Privacy Laws” shall mean the Gramm-Leach-Bliley Act (15 U.S.C. 88 6801 et seq.), as it may be in effect and as\namended from time to time, and the regulations promulgated thereunder (including, without limitation, the provisions of\n16 C.F.R. Part 313 and 16 C.F.R. Part 314) (collectively, “GLBA"), and all other state and federal laws and regulations\npertaining to the privacy, confidentiality or security of information created, collected, obtained, used, maintained,\nstored, accessed, disclosed or transferred by a financial institution, and all administrative and court decisions, policies,\nguidelines and procedures relating thereto, as may be in effect and as amended from time to time.\n“SC Affiliates” shall mean any person or entity which directly, or indirectly through one or more intermediaries, owns or\ncontrols, is owned or controlled by, or is under common control or ownership with SC or its ultimate parent, where\n“control” means the possession, directly or indirectly, or the power to direct or cause the direction of the management\npolicies of a person, whether through the ownership of voting securities, by contract or otherwise.\n“Third Party Vendor” shall mean any vendor that performs services or functions for, or provides products or software\nto, SC and/or any SC Affiliate.\n“Third Party Vendor Confidential Information” shall mean all information pertaining to a Third Party Vendor and its\nservices, functions, products or software, which has been disclosed by or on behalf of such Third Party Vendor to SC\nand/or any SC Affiliate.\n2. Incorporation of Recitals. The Recitals are incorporated herein and made a part of this agreement.\n3. Ownership. All SC’s Confidential Information is and shall remain SC's property, and no rights to it are granted to\nAssociate under this Agreement.\n4, Use of Confidential Information.\na) Associate agrees to use Confidential Information solely for the Purpose, for the exclusive use and benefit of SC\nand for no other purpose at any time whatsoever;\nb) Without limitation of the restrictions on use set forth in Section 4(a) above, or the other restrictions of this\nAgreement, Associate shall in all events refrain from, and shall cause any third party to whom Associate discloses\nSC'’s Confidential Information to refrain from, directly or indirectly, (i) utilizing Confidential Information in its or their own\nbusiness, (ii) using any Confidential Information in connection with the solicitation of any Consumer for any financial\nrelated product or service or in connection with the recommendation, sale or provision to any Consumer of any\nfinancial related product or service; and\nc) Associate shall use at least a reasonable degree of care to protect the Confidential Information from unauthorized\ndisclosure.\n5. Disclosure of Confidential Information. Associate agrees not to disclose any Confidential Information to any\nperson or entity at any time, now or hereafter, except that Associate may disclose Confidential Information to those directors,\nofficers, agents, employees and/or other representatives, including accountants, consultants and financial advisors (collectively\n“Representatives”) who need to know such information for the sole purpose of enabling Associate to carry out the uses specified\nin Section 4, above, and for no other purpose at any time, and who are bound by confidentiality obligations at least as stringent as\nthose set forth in this Agreement. In all events, Associate shall be liable to SC and the SC Affiliates for any misuse or wrongful\ndisclosure of, or other wrongful dealings with Confidential Information and any other breach of this Agreement by Associate, its\nRepresentatives and any third party to whom Associate discloses SC’s Confidential Information. Furthermore, any Confidential\nInformation disclosed to or accessed by any Representative, as a result of Associate acting outside the scope of the limitations\nset forth in section 4 above, shall be deemed to have been disclosed to or accessed by Associate.\n6. Information Security Program. Associate shall use commercially reasonable measures to protect SC's\nConfidential Information, and comply with SC’s controls to ensure the confidentiality of Confidential Information and that\nConfidential Information is not disclosed contrary to the provisions of this Agreement, GLBA or any other applicable Privacy Laws.\nWithout limiting the foregoing, Associate shall comply with SC’s information security program that includes appropriate\nadministrative, technical and physical safeguards and other security measures that are designed to:\n(i) ensure the security and confidentiality of Confidential Information;\n(ii) protect against any anticipated threats or hazards to the security and integrity of Confidential Information; and\n(iii) protect against unauthorized access to or use of Confidential Information that could result in substantial\nharm or inconvenience to any SC Consumer.\n7. Notification of Breach. Associate shall immediately notify SC in writing of any breach of this Agreement or any\nunauthorized use or disclosure of, or access to, Confidential Information of which Associate becomes aware. Such notice shall\nsummarize in reasonable detail the effect on SC of the breach or unauthorized use or disclosure of, or access to, Confidential\nInformation and Associate shall take any corrective action or measure directed by SC.\n8. Publicity. Associate hereby consents to any and all uses and displays, by SC and SC Affiliates, of the Associate’s\nname, voice, likeness, image, appearance, and biographical information in, on or in connection with any pictures, photographs,\naudio, and video recordings, digital images, websites, television programs, and advertising, other advertising, sales, and\nmarketing brochures, books, magazines, other publications, CDs, DVDs, tapes, and all other printed and electronic forms and\nmedia throughout the world, at any time during or after the period of [his/her] employment by SC, for all legitimate business\npurposes of SC and SC Affiliates ("Permitted Uses"). Employee hereby forever releases SC and its directors, officers,\nemployees, and Affiliates from any and all claims, actions, damages, losses, costs, expenses, and liability of any kind, arising\nunder any legal or equitable theory whatsoever at any time during or after the period of [his/her] employment by the Employer, in\nconnection with any Permitted Use.\n9. Confidential Information of Third Party Vendors. During the course of Associate’s employment with SC,\nAssociate may have access to Third Party Vendor Confidential Information. If a Third Party Vendor imposes restrictions or\nlimitations with respect to such information that are more stringent than those set forth in this Agreement, including, without\nlimitation, additional restrictions applicable to software code, promptly following a written request from SC (which request shall\ninclude a reasonably detailed description of such restrictions or limitations), Associate shall execute and deliver to SC a written\ninstrument, in favor of SC and the applicable Third Party Vendor, in the form provided by SC, to evidence and confirm Associate’s\nagreement to comply with such restrictions or limitations.\n10. Disposition of Confidential Information; Survival. At employment termination or earlier at any time upon SC’s\nrequest, Associate shall, as SC may direct, either immediately return to SC or destroy, all originals and copies in all media of all\nConfidential Information which at any time was disclosed to and/or obtained by Associate.\n11. Injunctive Relief. Associate agrees that any use or disclosure of Confidential Information in violation of this\nAgreement or any applicable Privacy Law may cause immediate and irreparable harm to SC or the SC Affiliates, for which money\ndamages may not constitute an adequate remedy. Therefore, Associate agrees that SC and the SC Affiliates may obtain\ninjunctive and other equitable relief in addition to its remedies at law without posting a bond or proof of actual damages. Such\nremedy shall not be deemed to be the exclusive remedy for breach of this Agreement but shall be in addition to all other remedies\navailable at law or equity. Associate agrees to reimburse SC costs and expenses (including, without limitation, attorneys' fees)\nincurred by SC in connection with the enforcement of this Agreement.\n12. Indemnification. Associate agrees to indemnify, defend and hold harmless SC and the SC Affiliates, and their\nrespective officers, directors, employees, agents, successors and assigns, from and against any and all losses, liabilities,\ndamages, and claims and all related costs and expenses, including reasonable attorneys’ fees, incurred by SC or the SC Affiliates\narising from or in connection with any breach by Associate, its Representatives or any third party to whom Associate discloses\nany SC Confidential information pursuant to section 5, of any provision of this Agreement or violation of any Privacy Law.\n13. Legally Required Disclosures. Associate shall immediately notify SC in writing of any subpoena or other court\nor administrative order or proceeding seeking access to or disclosure of\nConfidential Information, provided that the giving of such notice is permitted by law, so that SC may seek an appropriate\nprotective order. If in the absence of a protective order, Associate is nonetheless required by law or compelled to disclose\nConfidential Information or other information concerning SC, disclosure may be made only as to that portion of the Confidential\nInformation or such other information which Associate is legally required or compelled to be disclosed. Associate agrees to\nexercise best efforts to obtain assurance that confidential treatment will be accorded such Confidential Information.\n14. Confidentiality of this Agreement. Associate acknowledges that the terms of this Agreement are and shall\nremain confidential. The foregoing shall not prohibit disclosure by Associate of the terms of this Agreement to Associate’s\nindependent public accountants, counsel and/or other professional advisers on a "need to know" basis; provided, however, that\nsuch persons have been advised of this Agreement and agree to comply in writing herewith to the full extent permitted by law.\n15. Insider Trading. Associate hereby acknowledges that Associate is aware that the US securities laws prohibit\nany person who has received from an issuer material, non-public information concerning the matters that are the subject of this\nAgreement, from purchasing or selling securities of such issuer or from communicating such information to any other person\nunder circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\nTherefore, Associate agrees that Associate will not trade in the securities of SC until such time and under such circumstances as\nit may do so under the applicable securities laws.\n16. Successors and Assigns. This Agreement shall be binding upon the parties hereto and their respective\nsuccessors and assigns and shall inure to the benefit of the parties hereto and their respective successors and assigns.\n17. Effect of Waiver. No failure or delay in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any\nother right, power or privilege hereunder.\n18. Entire Agreement. Unless specifically provided herein, this Agreement contains all the understandings and\nrepresentations between the Associate and SC pertaining to the subject matter hereof and supersedes all prior and\ncontemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such\nsubject matter.\n19. Amendment. No provision of this Agreement may be amended or modified unless such amendment or\nmodification is agreed to in writing and signed by the Associate and by a duly authorized officer of SC.\n20. Severability. If any provision of this Agreement is not enforceable in whole or in part, the remaining provisions of\nthis Letter Agreement shall not be affected thereby.\n21. Applicability of Agreement. This Agreement shall apply to Confidential Information whether disclosed to or\naccessed by Associate prior to, on and/or after the Effective Date of this Agreement.\n22. Counterparts. This Agreement may be executed in multiple counterparts, each of which will be deemed an\noriginal, but all of which together shall constitute one and the same instrument. Delivery by facsimile of an executed counterpart\nof a signature page to this Agreement shall be as effective as delivery by traditional methods.\n23. Acknowledgment. Nothing in this Agreement shall be construed to in any way terminate, supersede,\nundermine, or otherwise modify the at-will status of the employment relationship between SC and the Associate, pursuant to\nwhich either SC or the Associate may terminate the employment relationship at any time, with or without cause, with or without\nnotice.\n24. Governing Law and Venue. This Agreement shall be governed by, construed and enforced under the laws of\nthe State of Texas as it is applied to agreements entered into and to be performed entirely within such State. The parties hereby\nagree that any action arising out of this Agreement shall be brought in the state or federal courts located in Dallas County, Texas,\nfurther\nirrevocably submit to the exclusive jurisdiction of any such court and waive any objection that such party may now or hereafter\nhave to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an\ninconvenient court, and further agree not to plead or claim the same.\nIN WITNESS WHEREOF, each party has caused this Non-Disclosure Agreement to be executed by one of its duly\nauthorized representatives under seal as of the Effective Date.\nSantander Consumer USA Inc.\nBy: /s/ Mikenzie Sari\nName: Mikenzie Sari\nTitle: Chief Human Resources Officer\nDate: __ 7/23/2019\nAssociate\nBy: /s/ Fahmi Karam\nName: Fahmi Karam\nDate: 7/23/2019	NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this "Agreement") is entered into and made effective as of the date of the last signature\nbelow (the "Effective Date"), by and between Santander Consumer USA Inc. ("SC") on behalf of the corporation, its operating\ndivisions, parent company, and its majority-owned subsidiaries, and (insert candidate name) (the "Associate").\nRECITALS\nA.\nIn the course of Associate's employment with SC, Associate may have access to certain non-public proprietary\ninformation regarding, among others, SC, its Affiliates, their respective businesses, operations, personnel, finances or customers\n(collectively, "Confidential Information", as further defined below), that Associate shal protect, such Confidential Information, as\nset forth in this Agreement.\nB.\nSC will share such Confidential Information with Associate solely to enable such Associate to perform its\nobligations under its employment with SC (the "Purpose").\nNOW, THEREFORE, in consideration of the Associate's employment by SC, and for other good and valuable\nconsideration, the receipt and adequacy of which the Associate acknowledges to be good and valuable consideration for [his/her]\nobligations hereunder, the parties hereto, intending to be legally bound, hereby agree as follows:\n1.\nDefinitions. The following terms shall have the definitions so provided when used in this Agreement:\n"Confidential Information" shall mean all information of any kind whatsoever, whether communicated orally or\nembodied in any medium or electronic format, concerning SC and/or any SC Affiliate, their respective businesses and\nConsumers (as defined herein), which is created, collected, obtained, used, maintained, stored or accessed by, or\ndisclosed to, Associate by or on behalf of SC and/or any SC Affiliate in connection with the Purpose, and shall include,\nwithout limitation, Customer Information (as defined herein), Nonpublic Personal Information (as defined herein), and\nThird Party Vendor Confidential Information (as defined herein), together with any documents, reports, analyses, or\nmaterials reflecting based on or containing any of the foregoing. Notwithstanding the foregoing, Confidentia\nInformation shall not include: publicly available information, except to the extent such information is included on a list,\ndescription or other grouping of SC Consumers (and publicly available information pertaining to them) that is derived\nusing any individually identifiable information that is not publicly available.\n"Consumer" shall mean any individual or entity that seeks to obtain, obtains or has obtained a financial product or\nservice from SC and/or any SC Affiliate including, without limitation, any individual, trust or business customer.\n"Customer Information" shall have the meaning assigned to such term in 16 C.F.R. Part 314, as amended from time to\ntime.\n"Nonpublic Personal Information" shall have the meaning assigned to such term in 16 C.F.R. 8 313.3, as amended\nfrom time to time.\n"Privacy Laws" shall mean the Gramm-Leach-Bliley Act (15 U.S.C. 88 6801 et seq.), as it may be in effect and as\namended\nfrom\ntime\nto\ntime,\nand\nthe\nregulations\npromulgated\nthereunder\n(including,\nwithout\nlimitation,\nthe\nprovisions\nof\n16 C.F.R. Part 313 and 16 C.F.R. Part 314) (collectively, "GLBA"), and all other state and federal laws and regulations\npertaining to the privacy, confidentiality or security of information created, collected, obtained, used, maintained,\nstored, accessed, disclosed or transferred by a financial institution, and all administrative and court decisions, policies,\nguidelines and procedures relating thereto, as may be in effect and as amended from time to time.\n"SC Affiliates" shal mean any person or entity which directly, or indirectly through one or more intermediaries, owns or\ncontrols, is owned or controlled by, or is under common control or ownership with SC or its ultimate parent, where\n"control" means the possession, directly or indirectly, or the power to direct or cause the direction of the management\npolicies of a person, whether through the ownership of voting securities, by contract or otherwise.\n"Third Party. yVendor" shall mean any vendor that performs services or functions for, or provides products or software\nto, SC and/or any SC Affiliate.\n"Third Party Vendor Confidential Information" shall mean all information pertaining to a Third Party Vendor and its\nservices, functions, products or software, which has been disclosed by or on behalf of such Third Party Vendor to SC\nand/or any SC Affiliate.\n2.\nIncorporation of Recitals. The Recitals are incorporated herein and made a part of this agreement.\n3.\nOwnership. All SC's Confidential Information is and shall remain SC's property, and no rights to it are granted to\nAssociate under this Agreement.\n4.\nUse of Confidential Information.\na)\nAssociate agrees to use Confidential Information solely for the Purpose, for the exclusive use and benefit of SC\nand for no other purpose at any time whatsoever;\nb) Without limitation of the restrictions on use set forth in Section 4(a) above, or the other restrictions of this\nAgreement, Associate shall in all events refrain from, and shall cause any third party to whom Associate discloses\nSC's Confidential Information to refrain from, directly or indirectly, (i) utilizing Confidential Information in its or their own\nbusiness, (ii) using any Confidential Information in connection with the solicitation of any Consumer for any financial\nrelated product or service or in connection with the recommendation, sale or provision to any Consumer of any\nfinancial related product or service; and\nc)\nAssociate shall use at least a reasonable degree of care to protect the Confidentia Information from unauthorized\ndisclosure.\n5.\nDisclosure of Confidential Information. Associate agrees not to disclose any Confidential Information to any\nperson or entity at any time, now or hereafter, except that Associate may disclose Confidential Information to those directors,\nofficers, agents, employees and/or other representatives, including accountants, consultants and financial advisors (collectively\n"Representatives") who need to know such information for the sole purpose of enabling Associate to carry out the uses specified\nin Section 4, above, and for no other purpose at any time, and who are bound by confidentiality obligations at least as stringent\nas\nthose set forth in this Agreement. In all events, Associate shall be liable to SC and the SC Affiliates for any misuse or wrongful\ndisclosure of, or other wrongful dealings with Confidentia Information and any other breach of this Agreement by Associate, its\nRepresentatives\nand\nany\nthird\nparty\nto\nwhom\nAssociate\ndiscloses\nSC's\nConfidential\nInformation.\nFurthermore,\nany\nConfidential\nInformation disclosed to or accessed by any Representative, as a result of Associate acting outside the scope of the limitations\nset forth in section 4 above, shall be deemed to have been disclosed to or accessed by Associate.\n6.\nInformation Security Program. Associate shall use commercially reasonable measures to protect SC's\nConfidential Information, and comply with SC's controls to ensure the confidentiality of Confidential Information and that\nConfidential Information is not disclosed contrary to the provisions of this Agreement, GLBA or any other applicable Privacy Laws.\nWithout limiting the foregoing, Associate shal comply with SC's information security program that includes appropriate\nadministrative, technical and physical safeguards and other security measures that are designed to:\n(i) ensure the security and confidentiality of Confidentia Information;\n(ii)\nprotect against any anticipated threats or hazards to the security and integrity of Confidentia Information; and\n(iii)\nprotect against unauthorized access to or use of Confidential Information that could result in substantia\nharm or inconvenience to any SC Consumer.\n7.\nNotification of Breach. Associate shall immediately notify SC in writing of any breach of this Agreement or any\nunauthorized use or disclosure of, or access to, Confidential Information of which Associate becomes aware. Such notice shall\nsummarize in reasonable detail the effect on SC of the breach or unauthorized use or disclosure of, or access to, Confidential\nInformation and Associate shall take any corrective action or measure directed by SC.\n8.\nPublicity. Associate hereby consents to any and all uses and displays, by SC and SC Affiliates, of the Associate's\nname, voice, likeness, image, appearance, and biographical information in, on or in connection with any pictures, photographs,\naudio, and video recordings, digita images, websites, television programs, and advertising, other advertising, sales, and\nmarketing brochures, books, magazines, other publications, CDs, DVDs, tapes, and all other printed and electronic forms and\nmedia\nthroughout\nthe\nworld,\nat\nany\ntime\nduring\nor\nafter\nthe\nperiod\nof\n[his/her]\nemployment\nby\nSC,\nfor\nall\nlegitimate\nbusiness\npurposes of SC and SC Affiliates ("Permitted Uses"). Employee hereby forever releases SC and its directors, officers,\nemployees, and Affiliates from any and all claims, actions, damages, losses, costs, expenses, and liability of any kind, arising\nunder any legal or equitable theory whatsoever at any time during or after the period of [his/her] employment by the Employer, in\nconnection with any Permitted Use.\n9.\nConfidential Information of Third Party Vendors. During the course of Associate's employment with SC,\nAssociate may have access to Third Party Vendor Confidential Information. If a Third Party Vendor imposes restrictions or\nlimitations with respect to such information that are more stringent than those set forth in this Agreement, including, without\nlimitation, additional restrictions applicable to software code, promptly following a written request from SC (which request shall\ninclude a reasonably detailed description of such restrictions or limitations), Associate shall execute and deliver to SC a written\ninstrument, in favor of SC and the applicable Third Party Vendor, in the form provided by SC, to evidence and confirm Associate's\nagreement to comply with such restrictions or limitations.\n10.\nDisposition of Confidential Information; Survival. At employment termination or earlier at any time upon SC's\nrequest, Associate shall, as SC may direct, either immediately return to SC or destroy, all originals and copies in all media of all\nConfidential Information which at any time was disclosed to and/or obtained by Associate.\n11.\nInjunctive Relief. Associate agrees that any use or disclosure of Confidentia Information in violation of this\nAgreement or any applicable Privacy Law may cause immediate and irreparable harm to SC or the SC Affiliates, for which money\ndamages\nmay\nnot\nconstitute\nan\nadequate\nremedy.\nTherefore,\nAssociate\nagrees\nthat\nSC\nand\nthe\nSC\nAffiliates\nmay\nobtain\ninjunctive and other equitable relief in addition to its remedies at law without posting a bond or proof of actual damages. Such\nremedy shall not be deemed to be the exclusive remedy for breach of this Agreement but shall be in addition to all other remedies\navailable at law or equity. Associate agrees to reimburse SC costs and expenses (including, without limitation, attorneys' fees)\nincurred by SC in connection with the enforcement of this Agreement.\n12.\nIndemnification. Associate agrees to indemnify, defend and hold harmless SC and the SC Affiliates, and their\nrespective officers, directors, employees, agents, successors and assigns, from and against any and all losses, liabilities,\ndamages, and claims and all related costs and expenses, including reasonable attorneys' fees, incurred by SC or the SC Affiliates\narising from or in connection with any breach by Associate, its Representatives or any third party to whom Associate discloses\nany SC Confidentia information pursuant to section 5, of any provision of this Agreement or violation of any Privacy Law.\n13.\nLegally Required Disclosures. Associate shall immediately notify SC in writing of any subpoena or other court\nor administrative order or proceeding seeking access to or disclosure of\nConfidential Information, provided that the giving of such notice is permitted by law, so that SC may seek an appropriate\nprotective order. If in the absence of a protective order, Associate is nonetheless required by law or compelled to disclose\nConfidential Information or other information concerning SC, disclosure may be made only as to that portion of the Confidential\nInformation or such other information which Associate is legally required or compelled to be disclosed. Associate agrees to\nexercise best efforts to obtain assurance that confidential treatment will be accorded such Confidential Information.\n14.\nConfidentiality of this Agreement. Associate acknowledges that the terms of this Agreement are and shall\nremain confidential. The foregoing shall not prohibit disclosure by Associate of the terms of this Agreement to Associate's\nindependent public accountants, counsel and/or other professional advisers on a "need to know" basis; provided, however, that\nsuch persons have been advised of this Agreement and agree to comply in writing herewith to the full extent permitted by law.\n15.\nInsider Trading. Associate hereby acknowledges that Associate is aware that the US securities laws prohibit\nany person who has received from an issuer material, non-public information concerning the matters that are the subject of this\nAgreement, from purchasing or selling securities of such issuer or from communicating such information to any other person\nunder circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\nTherefore, Associate agrees that Associate will not trade in the securities of SC until such time and under such circumstances as\nit may do so under the applicable securities laws.\n16.\nSuccessors and Assigns. This Agreement shall be binding upon the parties hereto and their respective\nsuccessors and assigns and shall inure to the benefit of the parties hereto and their respective successors and assigns.\n17.\nEffect of Waiver. No failure or delay in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any\nother right, power or privilege hereunder.\n18.\nEntire Agreement. Unless specifically provided herein, this Agreement contains all the understandings and\nrepresentations between the Associate and SC pertaining to the subject matter hereof and supersedes all prior and\ncontemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such\nsubject matter.\n19.\nAmendment. No provision of this Agreement may be amended or modified unless such amendment or\nmodification is agreed to in writing and signed by the Associate and by a duly authorized officer of SC.\n20.\nSeverability. If any provision of this Agreement is not enforceable in whole or in part, the remaining provisions of\nthis Letter Agreement shall not be affected thereby.\n21.\nApplicability of Agreement. This Agreement shall apply to Confidential Information whether disclosed to or\naccessed by Associate prior to, on and/or after the Effective Date of this Agreement.\n22.\nCounterparts. This Agreement may be executed in multiple counterparts, each of which will be deemed an\noriginal, but all of which together shall constitute one and the same instrument. Delivery by facsimile of an executed counterpart\nof a signature page to this Agreement shall be as effective as delivery by traditional methods.\n23.\nAcknowledgment. Nothing in this Agreement shall be construed to in any way terminate, supersede,\nundermine,\nor\notherwise\nmodify\nthe\nat-will\nstatus\nof\nthe\nemployment\nrelationship\nbetween\nSC\nand\nthe\nAssociate,\npursuant\nto\nwhich either SC or the Associate may terminate the employment relationship at any time, with or without cause, with or without\nnotice.\n24.\nGoverning Law and Venue. This Agreement shall be governed by, construed and enforced under the laws of\nthe State of Texas as it is applied to agreements entered into and to be performed entirely within such State. The parties hereby\nagree that any action arising out of this Agreement shall be brought in the state or federal courts located in Dallas County, Texas,\nfurther\nirrevocably submit to the exclusive jurisdiction of any such court and waive any objection that such party may now or hereafter\nhave to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an\ninconvenient court, and further agree not to plead or claim the same.\nIN WITNESS WHEREOF, each party has caused this Non-Disclosure Agreement to be executed by one of its duly\nauthorized representatives under seal as of the Effective Date.\nSantander Consumer USA Inc.\nBy: Is/ Mikenzie Sari\nName: Mikenzie Sari\nTitle: Chief Human Resources Officer\nDate: 7/23/2019\nAssociate\nBy: /s/ Fahmi Karam\nName: Fahmi Karam\nDate: 7/23/2019	NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this “Agreement”) is entered into and made effective as of the date of the last signature\nbelow (the “Effective Date”), by and between Santander Consumer USA Inc. (“SC”) on behalf of the corporation, its operating\ndivisions, parent company, and its majority-owned subsidiaries, and (insert candidate name) (the “Associate”).\nRECITALS\nA.\nIn the course of Associate’s employment with SC, Associate may have access to certain non-public proprietary\ninformation regarding, among others, SC, its Affiliates, their respective businesses, operations, personnel, finances or customers\n(collectively, “Confidential Information”, as further defined below), that Associate shall protect, such Confidential Information, as\nset forth in this Agreement.\nB.\nSC will share such Confidential Information with Associate solely to enable such Associate to perform its\nobligations under its employment with SC (the “Purpose”).\nNOW, THEREFORE, in consideration of the Associate’s employment by SC, and for other good and valuable\nconsideration, the receipt and adequacy of which the Associate acknowledges to be good and valuable consideration for [his/her]\nobligations hereunder, the parties hereto, intending to be legally bound, hereby agree as follows:\n1.\nDefinitions. The following terms shall have the definitions so provided when used in this Agreement:\n“Confidential Information” shall mean all information of any kind whatsoever, whether communicated orally or\nembodied in any medium or electronic format, concerning SC and/or any SC Affiliate, their respective businesses and\nConsumers (as defined herein), which is created, collected, obtained, used, maintained, stored or accessed by, or\ndisclosed to, Associate by or on behalf of SC and/or any SC Affiliate in connection with the Purpose, and shall include,\nwithout limitation, Customer Information (as defined herein), Nonpublic Personal Information (as defined herein), and\nThird Party Vendor Confidential Information (as defined herein), together with any documents, reports, analyses, or\nmaterials reflecting based on or containing any of the foregoing. Notwithstanding the foregoing, Confidential\nInformation shall not include: publicly available information, except to the extent such information is included on a list,\ndescription or other grouping of SC Consumers (and publicly available information pertaining to them) that is derived\nusing any individually identifiable information that is not publicly available.\n“Consumer” shall mean any individual or entity that seeks to obtain, obtains or has obtained a financial product or\nservice from SC and/or any SC Affiliate including, without limitation, any individual, trust or business customer.\n“Customer Information” shall have the meaning assigned to such term in 16 C.F.R. Part 314, as amended from time to\ntime.\n“Nonpublic Personal Information” shall have the meaning assigned to such term in 16 C.F.R. § 313.3, as amended\nfrom time to time.\n“Privacy Laws” shall mean the Gramm-Leach-Bliley Act (15 U.S .C. §§ 6801 et seq.), as it may be in effect and as\namended from time to time, and the regulations promulgated thereunder (including, without limitation, the provisions of\n16 C.F.R. Part 313 and 16 C.F.R. Part 314) (collectively, “GLBA”), and all other state and federal laws and regulations\npertaining to the privacy, confidentiality or security of information created, collected, obtained, used, maintained,\nstored, accessed, disclosed or transferred by a financial institution, and all administrative and court decisions, policies,\nguidelines and procedures relating thereto, as may be in effect and as amended from time to time.\n“SC Affiliates” shall mean any person or entity which directly, or indirectly through one or more intermediaries, owns or\ncontrols, is owned or controlled by, or is under common control or ownership with SC or its ultimate parent, where\n“control” means the possession, directly or indirectly, or the power to direct or cause the direction of the management\npolicies of a person, whether through the ownership of voting securities, by contract or otherwise.\n“Third Party Vendor” shall mean any vendor that performs services or functions for, or provides products or software\nto, SC and/or any SC Affiliate.\n“Third Party Vendor Confidential Information” shall mean all information pertaining to a Third Party Vendor and its\nservices, functions, products or software, which has been disclosed by or on behalf of such Third Party Vendor to SC\nand/or any SC Affiliate.\n2.\nIncorporation of Recitals. The Recitals are incorporated herein and made a part of this agreement.\n3.\nOwnership. All SC’s Confidential Information is and shall remain SC's property, and no rights to it are granted to\nAssociate under this Agreement.\n4.\nUse of Confidential Information.\na) Associate agrees to use Confidential Information solely for the Purpose, for the exclusive use and benefit of SC\nand for no other purpose at any time whatsoever;\nb) Without limitation of the restrictions on use set forth in Section 4(a) above, or the other restrictions of this\nAgreement, Associate shall in all events refrain from, and shall cause any third party to whom Associate discloses\nSC’s Confidential Information to refrain from, directly or indirectly, (i) utilizing Confidential Information in its or their own\nbusiness, (ii) using any Confidential Information in connection with the solicitation of any Consumer for any financial\nrelated product or service or in connection with the recommendation, sale or provision to any Consumer of any\nfinancial related product or service; and\nc) Associate shall use at least a reasonable degree of care to protect the Confidential Information from unauthorized\ndisclosure.\n5.\nDisclosure of Confidential Information. Associate agrees not to disclose any Confidential Information to any\nperson or entity at any time, now or hereafter, except that Associate may disclose Confidential Information to those directors,\nofficers, agents, employees and/or other representatives, including accountants, consultants and financial advisors (collectively\n“Representatives”) who need to know such information for the sole purpose of enabling Associate to carry out the uses specified\nin Section 4, above, and for no other purpose at any time, and who are bound by confidentiality obligations at least as stringent as\nthose set forth in this Agreement. In all events, Associate shall be liable to SC and the SC Affiliates for any misuse or wrongful\ndisclosure of, or other wrongful dealings with Confidential Information and any other breach of this Agreement by Associate, its\nRepresentatives and any third party to whom Associate discloses SC’s Confidential Information. Furthermore, any Confidential\nInformation disclosed to or accessed by any Representative, as a result of Associate acting outside the scope of the limitations\nset forth in section 4 above, shall be deemed to have been disclosed to or accessed by Associate.\n6.\nInformation Security Program. Associate shall use commercially reasonable measures to protect SC’s\nConfidential Information, and comply with SC’s controls to ensure the confidentiality of Confidential Information and that\nConfidential Information is not disclosed contrary to the provisions of this Agreement, GLBA or any other applicable Privacy Laws.\nWithout limiting the foregoing, Associate shall comply with SC’s information security program that includes appropriate\nadministrative, technical and physical safeguards and other security measures that are designed to:\n(i) ensure the security and confidentiality of Confidential Information;\n(ii) protect against any anticipated threats or hazards to the security and integrity of Confidential Information; and\n(iii)\nprotect against unauthorized access to or use of Confidential Information that could result in substantial\nharm or inconvenience to any SC Consumer.\n7.\nNotification of Breach. Associate shall immediately notify SC in writing of any breach of this Agreement or any\nunauthorized use or disclosure of, or access to, Confidential Information of which Associate becomes aware. Such notice shall\nsummarize in reasonable detail the effect on SC of the breach or unauthorized use or disclosure of, or access to, Confidential\nInformation and Associate shall take any corrective action or measure directed by SC.\n8.\nPublicity. Associate hereby consents to any and all uses and displays, by SC and SC Affiliates, of the Associate’s\nname, voice, likeness, image, appearance, and biographical information in, on or in connection with any pictures, photographs,\naudio, and video recordings, digital images, websites, television programs, and advertising, other advertising, sales, and\nmarketing brochures, books, magazines, other publications, CDs, DVDs, tapes, and all other printed and electronic forms and\nmedia throughout the world, at any time during or after the period of [his/her] employment by SC, for all legitimate business\npurposes of SC and SC Affiliates ("Permitted Uses"). Employee hereby forever releases SC and its directors, officers,\nemployees, and Affiliates from any and all claims, actions, damages, losses, costs, expenses, and liability of any kind, arising\nunder any legal or equitable theory whatsoever at any time during or after the period of [his/her] employment by the Employer, in\nconnection with any Permitted Use.\n9.\nConfidential Information of Third Party Vendors. During the course of Associate’s employment with SC,\nAssociate may have access to Third Party Vendor Confidential Information. If a Third Party Vendor imposes restrictions or\nlimitations with respect to such information that are more stringent than those set forth in this Agreement, including, without\nlimitation, additional restrictions applicable to software code, promptly following a written request from SC (which request shall\ninclude a reasonably detailed description of such restrictions or limitations), Associate shall execute and deliver to SC a written\ninstrument, in favor of SC and the applicable Third Party Vendor, in the form provided by SC, to evidence and confirm Associate’s\nagreement to comply with such restrictions or limitations.\n10.\nDisposition of Confidential Information; Survival. At employment termination or earlier at any time upon SC’s\nrequest, Associate shall, as SC may direct, either immediately return to SC or destroy, all originals and copies in all media of all\nConfidential Information which at any time was disclosed to and/or obtained by Associate.\n11.\nInjunctive Relief. Associate agrees that any use or disclosure of Confidential Information in violation of this\nAgreement or any applicable Privacy Law may cause immediate and irreparable harm to SC or the SC Affiliates, for which money\ndamages may not constitute an adequate remedy. Therefore, Associate agrees that SC and the SC Affiliates may obtain\ninjunctive and other equitable relief in addition to its remedies at law without posting a bond or proof of actual damages. Such\nremedy shall not be deemed to be the exclusive remedy for breach of this Agreement but shall be in addition to all other remedies\navailable at law or equity. Associate agrees to reimburse SC costs and expenses (including, without limitation, attorneys' fees)\nincurred by SC in connection with the enforcement of this Agreement.\n12.\nIndemnification. Associate agrees to indemnify, defend and hold harmless SC and the SC Affiliates, and their\nrespective officers, directors, employees, agents, successors and assigns, from and against any and all losses, liabilities,\ndamages, and claims and all related costs and expenses, including reasonable attorneys’ fees, incurred by SC or the SC Affiliates\narising from or in connection with any breach by Associate, its Representatives or any third party to whom Associate discloses\nany SC Confidential information pursuant to section 5, of any provision of this Agreement or violation of any Privacy Law.\n13.\nLegally Required Disclosures. Associate shall immediately notify SC in writing of any subpoena or other court\nor administrative order or proceeding seeking access to or disclosure of\nConfidential Information, provided that the giving of such notice is permitted by law, so that SC may seek an appropriate\nprotective order. If in the absence of a protective order, Associate is nonetheless required by law or compelled to disclose\nConfidential Information or other information concerning SC, disclosure may be made only as to that portion of the Confidential\nInformation or such other information which Associate is legally required or compelled to be disclosed. Associate agrees to\nexercise best efforts to obtain assurance that confidential treatment will be accorded such Confidential Information.\n14.\nConfidentiality of this Agreement. Associate acknowledges that the terms of this Agreement are and shall\nremain confidential. The foregoing shall not prohibit disclosure by Associate of the terms of this Agreement to Associate’s\nindependent public accountants, counsel and/or other professional advisers on a "need to know" basis; provided, however, that\nsuch persons have been advised of this Agreement and agree to comply in writing herewith to the full extent permitted by law.\n15.\nInsider Trading. Associate hereby acknowledges that Associate is aware that the US securities laws prohibit\nany person who has received from an issuer material, non-public information concerning the matters that are the subject of this\nAgreement, from purchasing or selling securities of such issuer or from communicating such information to any other person\nunder circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\nTherefore, Associate agrees that Associate will not trade in the securities of SC until such time and under such circumstances as\nit may do so under the applicable securities laws.\n16.\nSuccessors and Assigns. This Agreement shall be binding upon the parties hereto and their respective\nsuccessors and assigns and shall inure to the benefit of the parties hereto and their respective successors and assigns.\n17.\nEffect of Waiver. No failure or delay in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any\nother right, power or privilege hereunder.\n18.\nEntire Agreement. Unless specifically provided herein, this Agreement contains all the understandings and\nrepresentations between the Associate and SC pertaining to the subject matter hereof and supersedes all prior and\ncontemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such\nsubject matter.\n19.\nAmendment. No provision of this Agreement may be amended or modified unless such amendment or\nmodification is agreed to in writing and signed by the Associate and by a duly authorized officer of SC.\n20.\nSeverability. If any provision of this Agreement is not enforceable in whole or in part, the remaining provisions of\nthis Letter Agreement shall not be affected thereby.\n21.\nApplicability of Agreement. This Agreement shall apply to Confidential Information whether disclosed to or\naccessed by Associate prior to, on and/or after the Effective Date of this Agreement.\n22.\nCounterparts. This Agreement may be executed in multiple counterparts, each of which will be deemed an\noriginal, but all of which together shall constitute one and the same instrument. Delivery by facsimile of an executed counterpart\nof a signature page to this Agreement shall be as effective as delivery by traditional methods.\n23.\nAcknowledgment. Nothing in this Agreement shall be construed to in any way terminate, supersede,\nundermine, or otherwise modify the at-will status of the employment relationship between SC and the Associate, pursuant to\nwhich either SC or the Associate may terminate the employment relationship at any time, with or without cause, with or without\nnotice.\n24.\nGoverning Law and Venue. This Agreement shall be governed by, construed and enforced under the laws of\nthe State of Texas as it is applied to agreements entered into and to be performed entirely within such State. The parties hereby\nagree that any action arising out of this Agreement shall be brought in the state or federal courts located in Dallas County, Texas,\nfurther\nirrevocably submit to the exclusive jurisdiction of any such court and waive any objection that such party may now or hereafter\nhave to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an\ninconvenient court, and further agree not to plead or claim the same.\nIN WITNESS WHEREOF, each party has caused this Non-Disclosure Agreement to be executed by one of its duly\nauthorized representatives under seal as of the Effective Date.\nSantander Consumer USA Inc.\nBy: /s/ Mikenzie Sari\nName: Mikenzie Sari\nTitle: Chief Human Resources Officer\nDate: __7/23/2019______________\nAssociate\nBy: /s/ Fahmi Karam\nName: Fahmi Karam\nDate:___7/23/2019______________
321c6f84e52d80795042afb653178a94.pdf	effective_date jurisdiction party term	EX-99.4 3 d441639dex994.htm CONFIDENTIALITY AGREEMENT\nExhibit 4\nCONFIDENTIALITY AGREEMENT\nOctober 18, 2012\nPrecision Castparts Corp.\n4650 SW Macadam Ave, Suite 300\nPortland, OR 97239\nAttn: Roger C. Cooke\nSenior Vice President and General Counsel\nLadies and Gentlemen:\nIn connection with Precision Castparts Corp.’s (“PCP”) evaluation of a possible transaction involving the stock (the “Transaction”) of\nTitanium Metals Corporation (the “Company”), each Party (as defined below) has requested information from the other Party. As a condition to each\nParty’s receipt of Confidential Information (as hereinafter defined), each Party agrees to treat the Confidential Information which is furnished to it or\nits Representatives (as defined below) by the other Party or any of its Representatives in accordance with the provisions of this Confidentiality\nAgreement (this “Agreement”) and to take or refrain from taking certain other actions herein set forth. PCP and the Company shall each be referred\nto herein as a “Party” and collectively as the “Parties”.\n1. Each Party recognizes and acknowledges the competitive value and confidential nature of the Confidential Information and the damage\nthat would result to such Party and its Affiliates (as defined below) if any of the Confidential Information is disclosed to any third party.\nEach Party hereby agrees that the Confidential Information will be used solely for the purpose of evaluating, negotiating and/or financing\nthe Transaction and that all of the Confidential Information will be kept confidential in accordance with the terms of this Agreement;\nprovided that any such information may be disclosed to each Party’s respective Representatives who are actually engaged in and need to\nknow the Confidential Information for the purpose of evaluating, negotiating and/or financing the Transaction, who have been informed\nof the confidential nature of the Confidential Information, and who have been advised by such Party that such information is to be kept\nconfidential and shall not be used for any purpose other than the evaluation, negotiation and/or financing of the Transaction. Each Party\nagrees that it shall be responsible for any breach of this Agreement by any of its respective Representatives. Notwithstanding the\nforegoing, the Company acknowledges and agrees that all Confidential Information that has been provided to PCP or any of its\nRepresentatives prior to the date hereof in connection with or in preparation for any notices or filings with any European governmental\nagencies has been provided by the Company or its Representatives pursuant to this Agreement and, subject to the following sentence,\nshall be deemed Confidential Information for purposes of this Agreement. The Company further acknowledges and agrees that certain\nConfidential Information, as described on Schedule A to this Agreement, has been provided on a confidential basis by PCP or its\nRepresentatives to certain European governmental agencies, and, notwithstanding anything to the contrary in this Agreement, the\nprovision of such Confidential Information is expressly permitted hereby, shall not be deemed to be a breach of this Agreement and none\nof PCP, any of its Affiliates or any of its or their respective Representatives shall have any liability to the Company, any of its Affiliates\nor any of its or their respective Representatives in connection therewith.\n2. The term “Representatives” includes, as it applies to any party, such party’s directors, officers, employees, agents and Advisors (the term\n“Advisors” shall be defined herein to include, without limitation, advisors, financial advisors, investment bankers, in-house and outside\nattorneys, accountants, consultants, analysts, lenders and other potential sources of debt financing), if and only to the extent that such\npersons have actually been provided Confidential Information. The term “Confidential Information” means (i) all information furnished\nby the disclosing Party or any of its Representatives, whether furnished before or after the date hereof, whether oral or written, and\nregardless of the manner in which it is furnished, (ii) all analyses, compilations, forecasts, studies, interpretations or other documents\nprepared by receiving Party or its Representatives in connection with receiving Party’s evaluation of the Transaction (including, without\nlimitation, such that reflects or is based upon, in whole or part, the information furnished to receiving Party or its Representatives\npursuant hereto), and (iii) the fact that discussions or negotiations are taking place concerning a possible Transaction, and any of the\nterms, conditions or other facts with respect to any such possible Transaction, including the status thereof. The term “Confidential\nInformation” does not include any information which at the time of disclosure or thereafter is generally available to and known by the\npublic (other than as a result of its disclosure by receiving Party or its Representatives in breach of this Agreement). The Confidential\nInformation shall remain the property of the disclosing Party. No rights to use, license, or otherwise exploit the Confidential Information\nare granted to receiving Party, by implication or otherwise. Receiving Party will not by virtue of disclosing Party’s disclosure of the\nConfidential Information and/or receiving Party’s use of the Confidential Information acquire any rights with respect thereto, all of\nwhich rights shall remain exclusively with the disclosing Party.\n3. Given the nature of the Confidential Information and the Parties’ current discussions, each Party would be irreparably damaged by any\nunauthorized disclosure or use of any Confidential Information or of the Parties’ discussions or by any breach of this Agreement by the\nother Party. Without prejudice to the rights and remedies otherwise available to each Party, both Parties therefore, agree that each Party\nshall be entitled, without the requirement of posting a bond or other security, to equitable relief, including an injunction or specific\nperformance, in the event of any breach or threatened breach of the provisions of this Agreement by the other Party. Such remedies shall\nnot be deemed to be exclusive remedies but shall be in addition to all other remedies available at law or equity. If a court of competent\njurisdiction determines that any Party has breached this Agreement, then the breaching Party shall be liable and pay to the non-breaching\nParty the reasonable costs and expenses (including attorney’s fees) incurred by the non-breaching Party in connection with such\nlitigation, including any appeal therefrom.\n4. In the event either Party or any of its Representatives become legally compelled (by deposition, interrogatory, request for documents,\nsubpoena, civil investigation, demand, order or other legal process) to disclose any of the contents of the Confidential Information, or\neither the fact that discussions or negotiations are taking place concerning a possible Transaction, or any of the terms, conditions or other\nfacts with respect to any such possible Transaction, including the status thereof, each Party agrees that the other\n2\nParty and its Representatives may do so without liability, provided such Party (i) promptly notifies the other Party prior to any such\ndisclosure to the extent legally permissible and practicable, (ii) cooperates with the other Party in any attempts it may make to obtain a\nprotective order or other appropriate assurance that confidential treatment will be afforded the Confidential Information, and (iii) if no\nprotective order is obtained and disclosure is required, (a) furnishes only that portion of the Confidential Information that, based on the\nadvice of legal counsel, such Party is legally compelled to disclose, and (b) takes all reasonable measures to obtain reliable assurance\nthat confidential treatment will be accorded the Confidential Information.\n5. The Company may elect at any time to terminate further access by PCP to the Confidential Information. At any time either Party\ndetermines not to proceed with the possible Transaction, such Party will promptly notify the other Party. Following any request by either\nParty or any of its Representatives, the other Party agrees (i) to promptly redeliver all written Confidential Information and any other\nwritten material containing or reflecting any of the Confidential Information in such Party’s possession or its Representatives’\npossession, whether in hard-copy or machine readable form and including any copies thereof and (ii) all computer records, documents,\nmemoranda, notes and other writings whatsoever prepared by such Party or its Representatives based on the Confidential Information\nwill be destroyed; provided, however, that such Party and its Representatives shall be entitled to retain copies of any computer records\nand files containing any Confidential Information that have been created pursuant to automatic electronic archiving and/or back-up\nprocedures until such computer records and files have been deleted in the ordinary course, so long as such copies of Confidential\nInformation are not accessed (except to the extent required by law) and such Confidential Information shall continue to be bound by the\nobligations of confidentiality and other obligations as provided herein. Notwithstanding the foregoing, each Party may maintain an\narchival copy of such Confidential Information under the direct control of the office of its or their General Counsel or compliance officer\nfor legal compliance purposes, which copy shall remain bound by the obligations of confidentiality herein and shall not be subject to use\nor access by a person not employed by such General Counsel’s office or compliance office, as applicable, and which copy may be\nutilized solely to the extent necessary to permit such Party or its Representatives, as applicable, to comply, subject to the terms and\nconditions of this Agreement, with its required obligations. In addition, neither Party nor its Representatives shall be obligated to comply\nwith a request to return and/or destroy Confidential Information that is incorporated into any of their respective board of director or\ncommittee minutes or that is required to be retained by any of them pursuant to applicable law, including but not limited to the Sarbanes-\nOxley Act or a professional regulatory body or industry regulation, provided that any such retained Confidential Information shall be\ntreated by such Party and/or its applicable Representatives in a confidential manner using at least the same degree of care as it provides\nto protect its own similar confidential information (and in any event not less than reasonable care consistent with industry best practices),\nwhich copies shall remain bound by the obligations of confidentiality hereof.\n6. Each Party understands and acknowledges that neither the other Party nor any of its Representatives makes any representation or\nwarranty, express or implied, as to the accuracy or completeness of the Confidential Information. Each Party agrees that neither the other\nParty nor any of its Representatives shall have any liability to such Party or any\n3\nof its Representatives relating to or resulting from such Party’s or its Representatives’ use of the Confidential Information or any errors\ntherein or omissions therefrom. PCP further understands and agrees that (i) the Company (a) shall be free to conduct the process for a\nTransaction as it in its sole discretion shall determine (including changing or terminating such process, providing any information to any\nother Person, negotiating with any other Person or entering into a definitive agreement with any other Person with respect to any\ntransaction, in each case, at any time and without notice to PCP or any other Person) and (b) shall be free at its sole discretion to at any\ntime to accept or reject any proposal relating to the Company for any reason without notice to PCP or any other Person, and (ii) PCP\nshall have no claim against the Company or any of its representatives in connection with any of the foregoing.\n7. For a period of one (1) year after the date hereof, each Party agrees not to solicit for employment any of the current employees of the\nother Party to whom the first Party had been directly or indirectly introduced or otherwise had initial contact with as a result of its\nconsideration of a Transaction, so long as they are employed by the other Party; provided that this Agreement shall not prohibit either\nParty or any of its Representatives from (x) hiring any such employee who responds to any general solicitation performed by the such\nParty or any of its Representatives that is not specifically targeted at such persons, (y) soliciting any employee of the other Party\nfollowing the consummation of a Transaction or any other potential similar transaction or (z) responding to any person who initiates\ncontact with such Party regarding potential employment.\n8. Each Party hereby represents and warrants that such Party is not bound by the terms of a confidentiality agreement or other agreement\nwith a third party that would conflict with any of its obligations under this Agreement.\n9. In accepting and reviewing the Confidential Information, PCP represents and warrants that it is acting solely for itself. Subject to\nSection 13 of this Agreement, PCP further represents and warrants that PCP has not discussed and hereby covenants that unless PCP has\nfirst received the written consent of the Company, PCP will not discuss or share with any third party other than any of PCP’s\nRepresentatives any aspect of the Confidential Information or the fact that the Company is interested in a proposed Transaction, either on\nits own or in conjunction with any other interested Person in violation of this Agreement. PCP acknowledges that the effect of this\ncovenant is that without the full disclosure to and the written consent of the Company, PCP cannot act as agent, partner, co-participant or\nco-venturer for any third party or third parties with respect to a proposed Transaction. In order to obtain the consent of the Company,\nwhich the Company is entitled to withhold in its sole discretion, PCP shall notify the Company of the identity of each Person for whom\nor with whom PCP had considered pursuing a possible Transaction, and the nature and interest PCP and each such Person would have in\nrespect of such possible Transaction.\n10. Each Party agrees that, unless and until a binding agreement is entered into between the Company and PCP with respect to the\nTransaction, (a) no contract or agreement providing for any Transaction shall be deemed to exist, (b) no obligation, commitment or\nundertaking of any kind whatsoever with respect to any Transaction shall be implied and (c) neither the Company nor PCP will be under\nany legal obligation of any kind whatsoever with respect to the Transaction by virtue of this Agreement or any other\n4\nwritten or oral expression, except, in the case of this Agreement, with respect to the matters specifically agreed to herein. Except as\nprovided in Paragraphs 8, 9, and 12 herein, nothing contained in any discussions between PCP and the Company or in any Confidential\nInformation shall be deemed to constitute a representation or warranty. Except for the matters set forth in this Agreement or in any such\nbinding agreement, neither Party shall be entitled to rely on any statement, promise, agreement or understanding, whether oral or written,\nany custom, usage of trade, course of dealing or conduct.\n11. Except as provided in Section 13 of this Agreement, PCP agrees that all (i) communications regarding the Transaction, (ii) requests for\nadditional Confidential Information, (iii) requests for facility tours or management meetings, and (iv) discussions or questions regarding\nprocedures, will be submitted or directed only to Andy Nace at anace@valhi.net or any other representative of the Company’s general\ncounsel office designated from time to time by the Company in writing. Except as provided in Section 13, without the other Party’s prior\nwritten consent, neither Party shall, and each Party shall direct its Representatives not to, make any contact of any nature regarding a\nproposed Transaction (including inquiries or requests concerning Confidential Information) with any supplier, customer, labor union,\nlandlord, lessor, bank or other lender of or to the other Party or any of their Affiliates.\n12. Except as provided in Section 13 of this Agreement, in consideration for the Confidential Information of the Company being furnished to\nPCP under this Agreement, PCP agrees that, for a period of twelve (12) months after the date hereof (the “Standstill Period”), PCP shall\nnot and shall cause its Affiliates not to, and neither PCP nor such affiliate shall assist or encourage others to directly or indirectly, acting\nalone or in concert with others, in each case unless specifically requested in writing in advance by the Company:\n(a)\nacquire or agree, offer, seek or propose to acquire ownership (including, but not limited to, beneficial ownership as defined in\nRule 13d-3 under the Securities Exchange Act of 1934, as amended) of any shares or any class of voting securities issued by the\nCompany, or any rights or options to acquire such ownership (including from a third party);\n(b) offer, seek or propose a merger, consolidation or similar transaction involving the Company;\n(c)\noffer, seek or propose to purchase, lease or otherwise acquire all or a substantial portion of the assets of the Company;\n(d) seek or propose to influence or control the management or policies of the Company or obtain representation on the Company’s\nBoard of Directors, or solicit or participate in the solicitation of any proxies or consents with respect to the securities of the\nCompany or request a list of the Company’s stockholders; or\n(e) publicly seek or request permission to do any of the foregoing or seek any permission to make any public announcement with\nrespect to any of the foregoing.\n5\nPCP also agrees during the term of this Agreement not to publicly request the Company or any of its Representatives, directly or\nindirectly, to amend or waive any provision of this paragraph (including this sentence). Nothing herein shall preclude PCP’s ability to\nadvise the Company, its Board of Directors, or its legal and financial advisors on a confidential, nonpublic basis, of the terms and\nconditions of any proposed Transaction PCP is currently considering. The obligations set forth in this Paragraph 12 shall terminate in the\nevent that, in absence of any breach by PCP of its obligations under this Agreement, (i) a Person, entity or group unaffiliated with PCP\nhas commenced a bona fide tender or exchange offer for at least a majority of the Company’s outstanding shares, or (ii) the Company\nenters into a definitive agreement with a third party for the acquisition of a majority of the Company’s shares or the sale of all or\nsubstantially all of the Company’s assets.\nNotwithstanding anything in this Agreement to the contrary, following the expiration of the Standstill Period, PCP and its affiliates shall\nnot be prohibited by this Agreement from (i) taking any of the actions prohibited under this Section 12 during the Standstill Period,\nincluding without limitation, acquiring or offering to acquire any class of voting securities issued by the Company through a tender offer\nor otherwise, (ii) using the Confidential Information obtained pursuant to this Agreement specifically for the purpose of taking any such\naction contemplated pursuant to this Section and (iii) disclosing, to the extent required by applicable law as determined in good faith by\nPCP upon the advice of counsel, in any tender offer documents filed or furnished with the Securities and Exchange Commission, any\nConfidential Information received pursuant to this Agreement.\n13. Notwithstanding anything to the contrary in this Agreement, the Company acknowledges that PCP and certain of its Representatives\nhave had discussions and negotiations with Contran Corporation and certain of its affiliates and Representatives (collectively, “Contran”)\nregarding a potential Transaction.\n14. Notwithstanding anything to the contrary in this Agreement, this Agreement shall not prohibit any disclosure by either Party of the fact\nthat discussions or negotiations are taking place concerning a possible Transaction or of information with respect to terms, conditions or\nother facts with respect to a possible Transaction to the extent required by securities laws or stock exchange rules as determined in good\nfaith by such Party upon the advice of counsel. In addition, the Company may disclose the fact that discussions or negotiations are taking\nplace concerning a possible Transaction, or information with respect to terms, conditions or other facts with respect to a possible\nTransaction, in the context of any “market check” performed by the Company, provided that PCP’s identity (and any description of PCP\nor its business which could allow a Person to reasonably determine PCP’s identity), and any proposed price in any possible Transaction,\nshall remain strictly confidential.\n15. Each Party hereby acknowledges that it is aware, and will advise each of their respective Representatives who are informed as to the\nmatters that are the subject of this Agreement, that the United States securities laws restrict any Person who or that has received from an\nissuer material, non-public information from purchasing or selling securities of such issuer or from communicating such information to\nany other Person under circumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such securities.\n6\n16. Notwithstanding anything contained herein to the contrary in this Agreement, nothing contained herein shall be defined, construed, or\notherwise interpreted to limit or restrict any Party’s or any of its respective Representatives’, or any of its or their respective affiliates’,\nrights to engage in their respective businesses in the ordinary course, including ordinary course communications and commercial\ntransactions between the Parties and their respective Representatives.\n17. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware without regard to conflict of laws\nprinciples. Each Party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of\nDelaware and of the United States of America located in the State of Delaware for any action, suit or proceeding arising out of or\nrelating to this Agreement and the transactions contemplated hereby, and each Party agrees not to commence any action, suit, or\nproceeding relating thereto except in such courts, and further agrees that any service of any process, summons, notice or document by\nUS registered mail or internationally recognized carrier to such Party’s address set forth above shall be effective service of process in any\naction, suit or proceeding brought against such Party in any such court. Each Party irrevocably and unconditionally waives any objection\nto the laying of venue of any action, suit or proceeding arising out of this Agreement or transactions contemplated hereby in the courts of\nthe State of Delaware or the United States of America located in the State of Delaware and hereby further irrevocably and\nunconditionally waives and agrees not to plead or claim that any such action, suit or proceeding brought in any such court has been\nbrought in an inconvenient forum.\n18. The provisions of this Agreement shall be binding solely upon and inure to the benefit of the Parties hereto and their respective\nsuccessors and permitted assigns, expressly including any successor to or acquirer of the Company. Neither this Agreement nor any of\nthe rights and/or obligations hereunder may be assigned by either Party without the prior written consent of the other Party, and any\nattempted assignment or transfer by either Party not in accordance herewith shall be null and void ab initio.\n19. This Agreement represents the entire understanding and agreement of the Parties and may be modified only by a separate written\nagreement executed by each Party expressly modifying this Agreement. This Agreement supersedes and cancels any and all prior\nagreements between the Parties, express or implied, relating to the Transaction.\n20. In the event that any provision or portion of this Agreement is determined to be invalid or unenforceable for any reason, in whole or in\npart, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent\npermitted by law, and such invalid or unenforceable term or provision shall be deemed replaced by a term or provision that is valid and\nenforceable and that comes closest to expressing the Parties’ intention with respect to such invalid or unenforceable term or provision.\n21. The failure or refusal of either Party to insist upon strict performance of any provision of this Agreement or to exercise any right in any\none or more instances or circumstances shall not be construed as a waiver or relinquishment of such provision or right, nor shall such\nfailures or refusals be deemed a custom or practice contrary to such provision or right.\n7\n22. For purposes of this Agreement, except as otherwise defined herein: (a) “Affiliate” shall mean, as to any Person, any other Person which,\ndirectly or indirectly, controls, or is controlled by, or is under common control with, such Person (for this purpose, “control” (including,\nwith its correlative meanings, “controlled by” and “under common control with”) shall mean the possession, directly or indirectly, of\nthe power to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or\npartnership or other ownership interests, by contract or otherwise); and (b) “Person” shall be broadly interpreted to include any\nindividual, corporation, company, partnership, limited liability company, trust or other group or entity (including any court, government\nor agency, commission, board or authority thereof, federal, state or local, domestic, foreign or multinational).\n23. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed an original, but such\ncounterparts shall together constitute one and the same Agreement.\n24. This Agreement shall terminate upon the earlier to occur of (i) the closing of the Transaction contemplated by this Agreement, and\n(ii) twenty-four (24) months after the date hereof, after which time this Agreement and the obligations of the Parties hereunder shall have\nno further force or effect; provided, however, that with respect to Confidential Information that is stamped or specifically identified on\nthe master index at the time of delivery as “Specified Sensitive Information”, the receiving Party’s obligations of confidentiality pursuant\nto this Agreement shall survive indefinitely, so long as neither the Company nor any of its Representatives provides to PCP or any of its\nRepresentatives any such “Specified Sensitive Information” without PCP’s prior written consent.\n8\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned a duplicate copy of this Agreement.\nSincerely,\nTITANIUM METALS CORPORATION\nBy: /s/ James W. Brown\nName: James W. Brown\nTitle: Vice President and Chief Financial Officer\nACCEPTED AS OF THE DATE FIRST\nWRITTEN ABOVE:\nPRECISION CASTPARTS CORP.\nBy: /s/ Roger A. Cooke\nName: Roger A. Cooke\nTitle: Senior Vice President and General Counsel\nSchedule A to Confidentiality Agreement\nCompanies\nCountry\nRole\nTurnover (million EUR)\nYear of\nTurnover\nWorld\nCommunity\nTitanium Metals Corporation\nUSA\nT\n751\n261\n2011\nThe Transaction\nThe transaction concerns the proposed acquisition of control of Titanium Metals Corporation by Precision Castparts through a public tender offer,\nwhich is to be filed with the US Stock Exchange Authority. The proposed transaction meets the turnover thresholds set out in Article 1(2) of the EC\nMerger Regulation and therefore constitutes a concentration which has a Community dimension.\nT = Target\n1\n1	EX-99.4 3 d441639dex994.htm CONFIDENTIALITY AGREEMENT\nExhibit 4\nCONFIDENTIALITY AGREEMENT\nOctober 18, 2012\nPrecision Castparts Corp.\n4650 SW Macadam Ave, Suite 300\nPortland, OR 97239\nAttn: Roger C. Cooke\nSenior Vice President and General Counsel\nLadies and Gentlemen:\nIn connection with Precision Castparts Corp.’s (“PCP”) evaluation of a possible transaction involving the stock (the “Transaction”) of\nTitanium Metals Corporation (the “Company”), each Party (as defined below) has requested information from the other Party. As a condition to each\nParty’s receipt of Confidential Information (as hereinafter defined), each Party agrees to treat the Confidential Information which is furnished to it or\nits Representatives (as defined below) by the other Party or any of its Representatives in accordance with the provisions of this Confidentiality\nAgreement (this “Agreement”) and to take or refrain from taking certain other actions herein set forth. PCP and the Company shall each be referred\nto herein as a “Party” and collectively as the “Parties”.\n \n1. Each Party recognizes and acknowledges the competitive value and confidential nature of the Confidential Information and the damage\nthat would result to such Party and its Affiliates (as defined below) if any of the Confidential Information is disclosed to any third party.\nEach Party hereby agrees that the Confidential Information will be used solely for the purpose of evaluating, negotiating and/or financing\nthe Transaction and that all of the Confidential Information will be kept confidential in accordance with the terms of this Agreement;\nprovided that any such information may be disclosed to each Party’s respective Representatives who are actually engaged in and need to\nknow the Confidential Information for the purpose of evaluating, negotiating and/or financing the Transaction, who have been informed\nof the confidential nature of the Confidential Information, and who have been advised by such Party that such information is to be kept\nconfidential and shall not be used for any purpose other than the evaluation, negotiation and/or financing of the Transaction. Each Party\nagrees that it shall be responsible for any breach of this Agreement by any of its respective Representatives. Notwithstanding the\nforegoing, the Company acknowledges and agrees that all Confidential Information that has been provided to PCP or any of its\nRepresentatives prior to the date hereof in connection with or in preparation for any notices or filings with any European governmental\nagencies has been provided by the Company or its Representatives pursuant to this Agreement and, subject to the following sentence,\nshall be deemed Confidential Information for purposes of this Agreement. The Company further acknowledges and agrees that certain\nConfidential Information, as described on Schedule A to this Agreement, has been provided on a confidential basis by PCP or its\nRepresentatives to certain European governmental agencies, and, notwithstanding anything to the contrary in this Agreement, the\nprovision of such Confidential Information is expressly permitted hereby, shall not be deemed to be a breach of this Agreement and none\nof PCP, any of its Affiliates or any of its or their respective Representatives shall have any liability to the Company, any of its Affiliates\nor any of its or their respective Representatives in connection therewith.\nThe term “Representatives” includes, as it applies to any party, such party’s directors, officers, employees, agents and Advisors (the term\n“Advisors” shall be defined herein to include, without limitation, advisors, financial advisors, investment bankers, in-house and outside\nattorneys, accountants, consultants, analysts, lenders and other potential sources of debt financing), if and only to the extent that such\npersons have actually been provided Confidential Information. The term “Confidential Information” means (i) all information furnished\nby the disclosing Party or any of its Representatives, whether furnished before or after the date hereof, whether oral or written, and\nregardless of the manner in which it is furnished, (ii) all analyses, compilations, forecasts, studies, interpretations or other documents\nprepared by receiving Party or its Representatives in connection with receiving Party’s evaluation of the Transaction (including, without\nlimitation, such that reflects or is based upon, in whole or part, the information furnished to receiving Party or its Representatives\npursuant hereto), and (iii) the fact that discussions or negotiations are taking place concerning a possible Transaction, and any of the\nterms, conditions or other facts with respect to any such possible Transaction, including the status thereof. The term “Confidential\nInformation” does not include any information which at the time of disclosure or thereafter is generally available to and known by the\npublic (other than as a result of its disclosure by receiving Party or its Representatives in breach of this Agreement). The Confidential\nInformation shall remain the property of the disclosing Party. No rights to use, license, or otherwise exploit the Confidential Information\nare granted to receiving Party, by implication or otherwise. Receiving Party will not by virtue of disclosing Party’s disclosure of the\nConfidential Information and/or receiving Party’s use of the Confidential Information acquire any rights with respect thereto, all of\nwhich rights shall remain exclusively with the disclosing Party.\nGiven the nature of the Confidential Information and the Parties’ current discussions, each Party would be irreparably damaged by any\nunauthorized disclosure or use of any Confidential Information or of the Parties’ discussions or by any breach of this Agreement by the\nother Party. Without prejudice to the rights and remedies otherwise available to each Party, both Parties therefore, agree that each Party\nshall be entitled, without the requirement of posting a bond or other security, to equitable relief, including an injunction or specific\nperformance, in the event of any breach or threatened breach of the provisions of this Agreement by the other Party. Such remedies shall\nnot be deemed to be exclusive remedies but shall be in addition to all other remedies available at law or equity. If a court of competent\njurisdiction determines that any Party has breached this Agreement, then the breaching Party shall be liable and pay to the non-breaching\nParty the reasonable costs and expenses (including attorney’s fees) incurred by the non-breaching Party in connection with such\nlitigation, including any appeal therefrom.\nIn the event either Party or any of its Representatives become legally compelled (by deposition, interrogatory, request for documents,\nsubpoena, civil investigation, demand, order or other legal process) to disclose any of the contents of the Confidential Information, or\neither the fact that discussions or negotiations are taking place concerning a possible Transaction, or any of the terms, conditions or other\nfacts with respect to any such possible Transaction, including the status thereof, each Party agrees that the other\n2\nParty and its Representatives may do so without liability, provided such Party (i) promptly notifies the other Party prior to any such\ndisclosure to the extent legally permissible and practicable, (ii) cooperates with the other Party in any attempts it may make to obtain a\nprotective order or other appropriate assurance that confidential treatment will be afforded the Confidential Information, and (iii) if no\nprotective order is obtained and disclosure is required, (a) furnishes only that portion of the Confidential Information that, based on the\nadvice of legal counsel, such Party is legally compelled to disclose, and (b) takes all reasonable measures to obtain reliable assurance\nthat confidential treatment will be accorded the Confidential Information.\nThe Company may elect at any time to terminate further access by PCP to the Confidential Information. At any time either Party\ndetermines not to proceed with the possible Transaction, such Party will promptly notify the other Party. Following any request by either\nParty or any of its Representatives, the other Party agrees (i) to promptly redeliver all written Confidential Information and any other\nwritten material containing or reflecting any of the Confidential Information in such Party’s possession or its Representatives’\npossession, whether in hard-copy or machine readable form and including any copies thereof and (ii) all computer records, documents,\nmemoranda, notes and other writings whatsoever prepared by such Party or its Representatives based on the Confidential Information\nwill be destroyed; provided, however, that such Party and its Representatives shall be entitled to retain copies of any computer records\nand files containing any Confidential Information that have been created pursuant to automatic electronic archiving and/or back-up\nprocedures until such computer records and files have been deleted in the ordinary course, so long as such copies of Confidential\nInformation are not accessed (except to the extent required by law) and such Confidential Information shall continue to be bound by the\nobligations of confidentiality and other obligations as provided herein. Notwithstanding the foregoing, each Party may maintain an\narchival copy of such Confidential Information under the direct control of the office of its or their General Counsel or compliance officer\nfor legal compliance purposes, which copy shall remain bound by the obligations of confidentiality herein and shall not be subject to use\nor access by a person not employed by such General Counsel’s office or compliance office, as applicable, and which copy may be\nutilized solely to the extent necessary to permit such Party or its Representatives, as applicable, to comply, subject to the terms and\nconditions of this Agreement, with its required obligations. In addition, neither Party nor its Representatives shall be obligated to comply\nwith a request to return and/or destroy Confidential Information that is incorporated into any of their respective board of director or\ncommittee minutes or that is required to be retained by any of them pursuant to applicable law, including but not limited to the Sarbanes-\nOxley Act or a professional regulatory body or industry regulation, provided that any such retained Confidential Information shall be\ntreated by such Party and/or its applicable Representatives in a confidential manner using at least the same degree of care as it provides\nto protect its own similar confidential information (and in any event not less than reasonable care consistent with industry best practices),\nwhich copies shall remain bound by the obligations of confidentiality hereof.\nEach Party understands and acknowledges that neither the other Party nor any of its Representatives makes any representation or\nwarranty, express or implied, as to the accuracy or completeness of the Confidential Information. Each Party agrees that neither the other\nParty nor any of its Representatives shall have any liability to such Party or any\n3\n10. of its Representatives relating to or resulting from such Party’s or its Representatives’ use of the Confidential Information or any errors\ntherein or omissions therefrom. PCP further understands and agrees that (i) the Company (a) shall be free to conduct the process for a\nTransaction as it in its sole discretion shall determine (including changing or terminating such process, providing any information to any\nother Person, negotiating with any other Person or entering into a definitive agreement with any other Person with respect to any\ntransaction, in each case, at any time and without notice to PCP or any other Person) and (b) shall be free at its sole discretion to at any\ntime to accept or reject any proposal relating to the Company for any reason without notice to PCP or any other Person, and (ii) PCP\nshall have no claim against the Company or any of its representatives in connection with any of the foregoing.\nFor a period of one (1) year after the date hereof, each Party agrees not to solicit for employment any of the current employees of the\nother Party to whom the first Party had been directly or indirectly introduced or otherwise had initial contact with as a result of its\nconsideration of a Transaction, so long as they are employed by the other Party; provided that this Agreement shall not prohibit either\nParty or any of its Representatives from (x) hiring any such employee who responds to any general solicitation performed by the such\nParty or any of its Representatives that is not specifically targeted at such persons, (y) soliciting any employee of the other Party\nfollowing the consummation of a Transaction or any other potential similar transaction or (z) responding to any person who initiates\ncontact with such Party regarding potential employment.\nEach Party hereby represents and warrants that such Party is not bound by the terms of a confidentiality agreement or other agreement\nwith a third party that would conflict with any of its obligations under this Agreement.\nIn accepting and reviewing the Confidential Information, PCP represents and warrants that it is acting solely for itself. Subject to\nSection 13 of this Agreement, PCP further represents and warrants that PCP has not discussed and hereby covenants that unless PCP has\nfirst received the written consent of the Company, PCP will not discuss or share with any third party other than any of PCP’s\nRepresentatives any aspect of the Confidential Information or the fact that the Company is interested in a proposed Transaction, either on\nits own or in conjunction with any other interested Person in violation of this Agreement. PCP acknowledges that the effect of this\ncovenant is that without the full disclosure to and the written consent of the Company, PCP cannot act as agent, partner, co-participant or\nco-venturer for any third party or third parties with respect to a proposed Transaction. In order to obtain the consent of the Company,\nwhich the Company is entitled to withhold in its sole discretion, PCP shall notify the Company of the identity of each Person for whom\nor with whom PCP had considered pursuing a possible Transaction, and the nature and interest PCP and each such Person would have in\nrespect of such possible Transaction.\nEach Party agrees that, unless and until a binding agreement is entered into between the Company and PCP with respect to the\nTransaction, (a) no contract or agreement providing for any Transaction shall be deemed to exist, (b) no obligation, commitment or\nundertaking of any kind whatsoever with respect to any Transaction shall be implied and (c) neither the Company nor PCP will be under\nany legal obligation of any kind whatsoever with respect to the Transaction by virtue of this Agreement or any other\n4\n11. 12. written or oral expression, except, in the case of this Agreement, with respect to the matters specifically agreed to herein. Except as\nprovided in Paragraphs 8, 9, and 12 herein, nothing contained in any discussions between PCP and the Company or in any Confidential\nInformation shall be deemed to constitute a representation or warranty. Except for the matters set forth in this Agreement or in any such\nbinding agreement, neither Party shall be entitled to rely on any statement, promise, agreement or understanding, whether oral or written,\nany custom, usage of trade, course of dealing or conduct.\nExcept as provided in Section 13 of this Agreement, PCP agrees that all (i) communications regarding the Transaction, (ii) requests for\nadditional Confidential Information, (iii) requests for facility tours or management meetings, and (iv) discussions or questions regarding\nprocedures, will be submitted or directed only to Andy Nace at anace@valhi.net or any other representative of the Company’s general\ncounsel office designated from time to time by the Company in writing. Except as provided in Section 13, without the other Party’s prior\nwritten consent, neither Party shall, and each Party shall direct its Representatives not to, make any contact of any nature regarding a\nproposed Transaction (including inquiries or requests concerning Confidential Information) with any supplier, customer, labor union,\nlandlord, lessor, bank or other lender of or to the other Party or any of their Affiliates.\nExcept as provided in Section 13 of this Agreement, in consideration for the Confidential Information of the Company being furnished to\nPCP under this Agreement, PCP agrees that, for a period of twelve (12) months after the date hereof (the “Standstill Period”), PCP shall\nnot and shall cause its Affiliates not to, and neither PCP nor such affiliate shall assist or encourage others to directly or indirectly, acting\nalone or in concert with others, in each case unless specifically requested in writing in advance by the Company:\n(a) acquire or agree, offer, seek or propose to acquire ownership (including, but not limited to, beneficial ownership as defined in\nRule 13d-3 under the Securities Exchange Act of 1934, as amended) of any shares or any class of voting securities issued by the\nCompany, or any rights or options to acquire such ownership (including from a third party);\n(b) offer, seek or propose a merger, consolidation or similar transaction involving the Company;\n(© offer, seek or propose to purchase, lease or otherwise acquire all or a substantial portion of the assets of the Company;\n(d) seek or propose to influence or control the management or policies of the Company or obtain representation on the Company’s\nBoard of Directors, or solicit or participate in the solicitation of any proxies or consents with respect to the securities of the\nCompany or request a list of the Company’s stockholders; or\n(e) publicly seek or request permission to do any of the foregoing or seek any permission to make any public announcement with\nrespect to any of the foregoing.\n13. 14. 15. PCP also agrees during the term of this Agreement not to publicly request the Company or any of its Representatives, directly or\nindirectly, to amend or waive any provision of this paragraph (including this sentence). Nothing herein shall preclude PCP’s ability to\nadvise the Company, its Board of Directors, or its legal and financial advisors on a confidential, nonpublic basis, of the terms and\nconditions of any proposed Transaction PCP is currently considering. The obligations set forth in this Paragraph 12 shall terminate in the\nevent that, in absence of any breach by PCP of its obligations under this Agreement, (i) a Person, entity or group unaffiliated with PCP\nhas commenced a bona fide tender or exchange offer for at least a majority of the Company’s outstanding shares, or (ii) the Company\nenters into a definitive agreement with a third party for the acquisition of a majority of the Company’s shares or the sale of all or\nsubstantially all of the Company’s assets.\nNotwithstanding anything in this Agreement to the contrary, following the expiration of the Standstill Period, PCP and its affiliates shall\nnot be prohibited by this Agreement from (i) taking any of the actions prohibited under this Section 12 during the Standstill Period,\nincluding without limitation, acquiring or offering to acquire any class of voting securities issued by the Company through a tender offer\nor otherwise, (ii) using the Confidential Information obtained pursuant to this Agreement specifically for the purpose of taking any such\naction contemplated pursuant to this Section and (iii) disclosing, to the extent required by applicable law as determined in good faith by\nPCP upon the advice of counsel, in any tender offer documents filed or furnished with the Securities and Exchange Commission, any\nConfidential Information received pursuant to this Agreement.\nNotwithstanding anything to the contrary in this Agreement, the Company acknowledges that PCP and certain of its Representatives\nhave had discussions and negotiations with Contran Corporation and certain of its affiliates and Representatives (collectively, “Contran”)\nregarding a potential Transaction.\nNotwithstanding anything to the contrary in this Agreement, this Agreement shall not prohibit any disclosure by either Party of the fact\nthat discussions or negotiations are taking place concerning a possible Transaction or of information with respect to terms, conditions or\nother facts with respect to a possible Transaction to the extent required by securities laws or stock exchange rules as determined in good\nfaith by such Party upon the advice of counsel. In addition, the Company may disclose the fact that discussions or negotiations are taking\nplace concerning a possible Transaction, or information with respect to terms, conditions or other facts with respect to a possible\nTransaction, in the context of any “market check” performed by the Company, provided that PCP’s identity (and any description of PCP\nor its business which could allow a Person to reasonably determine PCP’s identity), and any proposed price in any possible Transaction,\nshall remain strictly confidential.\nEach Party hereby acknowledges that it is aware, and will advise each of their respective Representatives who are informed as to the\nmatters that are the subject of this Agreement, that the United States securities laws restrict any Person who or that has received from an\nissuer material, non-public information from purchasing or selling securities of such issuer or from communicating such information to\nany other Person under circumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such securities.\n6\n16. 17. 18. 19. 20. 21. Notwithstanding anything contained herein to the contrary in this Agreement, nothing contained herein shall be defined, construed, or\notherwise interpreted to limit or restrict any Party’s or any of its respective Representatives’, or any of its or their respective affiliates’,\nrights to engage in their respective businesses in the ordinary course, including ordinary course communications and commercial\ntransactions between the Parties and their respective Representatives.\nThis Agreement shall be governed and construed in accordance with the laws of the State of Delaware without regard to conflict of laws\nprinciples. Each Party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of\nDelaware and of the United States of America located in the State of Delaware for any action, suit or proceeding arising out of or\nrelating to this Agreement and the transactions contemplated hereby, and each Party agrees not to commence any action, suit, or\nproceeding relating thereto except in such courts, and further agrees that any service of any process, summons, notice or document by\nUS registered mail or internationally recognized carrier to such Party’s address set forth above shall be effective service of process in any\naction, suit or proceeding brought against such Party in any such court. Each Party irrevocably and unconditionally waives any objection\nto the laying of venue of any action, suit or proceeding arising out of this Agreement or transactions contemplated hereby in the courts of\nthe State of Delaware or the United States of America located in the State of Delaware and hereby further irrevocably and\nunconditionally waives and agrees not to plead or claim that any such action, suit or proceeding brought in any such court has been\nbrought in an inconvenient forum.\nThe provisions of this Agreement shall be binding solely upon and inure to the benefit of the Parties hereto and their respective\nsuccessors and permitted assigns, expressly including any successor to or acquirer of the Company. Neither this Agreement nor any of\nthe rights and/or obligations hereunder may be assigned by either Party without the prior written consent of the other Party, and any\nattempted assignment or transfer by either Party not in accordance herewith shall be null and void ab initio.\nThis Agreement represents the entire understanding and agreement of the Parties and may be modified only by a separate written\nagreement executed by each Party expressly modifying this Agreement. This Agreement supersedes and cancels any and all prior\nagreements between the Parties, express or implied, relating to the Transaction.\nIn the event that any provision or portion of this Agreement is determined to be invalid or unenforceable for any reason, in whole or in\npart, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent\npermitted by law, and such invalid or unenforceable term or provision shall be deemed replaced by a term or provision that is valid and\nenforceable and that comes closest to expressing the Parties’ intention with respect to such invalid or unenforceable term or provision.\nThe failure or refusal of either Party to insist upon strict performance of any provision of this Agreement or to exercise any right in any\none or more instances or circumstances shall not be construed as a waiver or relinquishment of such provision or right, nor shall such\nfailures or refusals be deemed a custom or practice contrary to such provision or right.\n7\n22. 23. 24. For purposes of this Agreement, except as otherwise defined herein: (a) “Affiliate” shall mean, as to any Person, any other Person which,\ndirectly or indirectly, controls, or is controlled by, or is under common control with, such Person (for this purpose, “control” (including,\nwith its correlative meanings, “controlled by” and “under common control with”) shall mean the possession, directly or indirectly, of\nthe power to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or\npartnership or other ownership interests, by contract or otherwise); and (b) “Person” shall be broadly interpreted to include any\nindividual, corporation, company, partnership, limited liability company, trust or other group or entity (including any court, government\nor agency, commission, board or authority thereof, federal, state or local, domestic, foreign or multinational).\nThis Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed an original, but such\ncounterparts shall together constitute one and the same Agreement.\nThis Agreement shall terminate upon the earlier to occur of (i) the closing of the Transaction contemplated by this Agreement, and\n(ii) twenty-four (24) months after the date hereof, after which time this Agreement and the obligations of the Parties hereunder shall have\nno further force or effect; provided, however, that with respect to Confidential Information that is stamped or specifically identified on\nthe master index at the time of delivery as “Specified Sensitive Information”, the receiving Party’s obligations of confidentiality pursuant\nto this Agreement shall survive indefinitely, so long as neither the Company nor any of its Representatives provides to PCP or any of its\nRepresentatives any such “Specified Sensitive Information” without PCP’s prior written consent.\n8\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned a duplicate copy of this Agreement. ACCEPTED AS OF THE DATE FIRST WRITTEN ABOVE: PRECISION CASTPARTS CORP. By:\n/s/ Roger A. Cooke\nName: Roger A. Cooke Title:\nSenior Vice President and General Counsel\nSincerely,\nTITANIUM METALS CORPORATION\nBy: /s/ James W. Brown\nName: James W. Brown\nTitle:  Vice President and Chief Financial Officer\nSchedule A to Confidentiality Agreement\nTurnover (million EUR) Year of\nCompanies Country Role World Community Turnover\nTitanium Metals Corporation USA T 751 261 2011\nThe Transaction\nThe transaction concerns the proposed acquisition of control of Titanium Metals Corporation by Precision Castparts through a public tender offer,\nwhich is to be filed with the US Stock Exchange Authority. The proposed transaction meets the turnover thresholds set out in Article 1(2) of the EC\nMerger Regulation and therefore constitutes a concentration which has a Community dimension.\n! T = Target	EX-99.4 3 d441639dex994.htm CONFIDENTIALITY AGREEMENT\nExhibit 4\nCONFIDENTIALITY AGREEMENT\nOctober 18, 2012\nPrecision Castparts Corp.\n4650 SW Macadam Ave, Suite 300\nPortland, OR 97239\nAttn: Roger C. Cooke\nSenior Vice President and General Counsel\nLadies and Gentlemen:\nIn connection with Precision Castparts Corp.'s ("PCP") evaluation of a possible transaction involving the stock (the "Transaction") of\nTitanium Metals Corporation (the "Company."), each Party (as defined below) has requested information from the other Party. As a condition to each\nParty's receipt of Confidential Information (as hereinafter defined), each Party agrees to treat the Confidential Information which is furnished to it or\nits Representatives (as defined below) by the other Party or any of its Representatives in accordance with the provisions of this Confidentiality\nAgreement (this "Agreement") and to take or refrain from taking certain other actions herein set forth. PCP and the Company shall each be referred\nto herein as a "Party." and collectively as the "Parties".\n1.\nEach Party recognizes and acknowledges the competitive value and confidential nature of the Confidential Information and the damage\nthat would result to such Party and its Affiliates (as defined below) if any of the Confidential Information is disclosed to any third party.\nEach Party hereby agrees that the Confidential Information will be used solely for the purpose of evaluating, negotiating and/or financing\nthe Transaction and that all of the Confidential Information will be kept confidential in accordance with the terms of this Agreement;\nprovided that any such information may be disclosed to each Party's respective Representatives who are actually engaged in and need\nto\nknow the Confidential Information for the purpose of evaluating, negotiating and/or financing the Transaction, who have been informed\nof the confidential nature of the Confidential Information, and who have been advised by such Party that such information is to be kept\nconfidential and shall not be used for any purpose other than the evaluation, negotiation and/or financing of the Transaction. Each Party\nagrees that it shall be responsible for any breach of this Agreement by any of its respective Representatives. Notwithstanding the\nforegoing, the Company acknowledges and agrees that all Confidential Information that has been provided to PCP or any of its\nRepresentatives prior to the date hereof in connection with or in preparation for any notices or filings with any European governmental\nagencies has been provided by the Company or its Representatives pursuant to this Agreement and, subject to the following sentence,\nshall be deemed Confidential Information for purposes of this Agreement. The Company further acknowledges and agrees that certain\nConfidential Information, as described on Schedule A to this Agreement, has been provided on a confidentia basis by PCP or its\nRepresentatives to certain European governmental agencies, and, notwithstanding anything to the contrary in this Agreement, the\nprovision of such Confidential Information is expressly permitted hereby, shall not be deemed to be a breach of this Agreement and none\nof PCP, any of its Affiliates or any of its or their respective Representatives shall have any liability to the Company, any of its Affiliates\nor any of its or their respective Representatives in connection therewith.\n2.\nThe term "Representatives" includes, as it applies to any party, such party's directors, officers, employees, agents and Advisors (the term\n"Advisors" shall be defined herein to include, without limitation, advisors, financial advisors, investment bankers, in-house and outside\nattorneys, accountants, consultants, analysts, lenders and other potential sources of debt financing), if and only to the extent that such\npersons have actually been provided Confidential Information. The term "Confidential Information" means (i) all information furnished\nby\nthe disclosing Party or any of its Representatives, whether furnished before or after the date hereof, whether oral or written, and\nregardless of the manner in which it is furnished, (ii) all analyses, compilations, forecasts, studies, interpretations or other documents\nprepared by receiving Party or its Representatives in connection with receiving Party's evaluation of the Transaction (including, without\nlimitation, such that reflects or is based upon, in whole or part, the information furnished to receiving Party or its Representatives\npursuant hereto), and (iii) the fact that discussions or negotiations are taking place concerning a possible Transaction, and any of the\nterms, conditions or other facts with respect to any such possible Transaction, including the status thereof. The term "Confidential\nInformation" does not include any information which at the time of disclosure or thereafter is generally available to and known by the\npublic (other than as a result of its disclosure by receiving Party or its Representatives in breach of this Agreement). The Confidential\nInformation shall remain the property of the disclosing Party. No rights to use, license, or otherwise exploit the Confidential Information\nare granted to receiving Party, by implication or otherwise. Receiving Party will not by virtue of disclosing Party's disclosure of the\nConfidential Information and/or receiving Party's use of the Confidential Information acquire any rights with respect thereto, all of\nwhich rights shall remain exclusively with the disclosing Party.\n3.\nGiven the nature of the Confidential Information and the Parties' current discussions, each Party would be irreparably damaged by any\nunauthorized disclosure or use of any Confidential Information or of the Parties' discussions or by any breach of this Agreement by the\nother Party. Without prejudice to the rights and remedies otherwise available to each Party, both Parties therefore, agree that each Party\nshall be entitled, without the requirement of posting a bond or other security, to equitable relief, including an injunction or specific\nperformance, in the event of any breach or threatened breach of the provisions of this Agreement by the other Party. Such remedies shall\nnot be deemed to be exclusive remedies but shall be in addition to all other remedies available at law or equity. If a court of competent\njurisdiction determines that any Party has breached this Agreement, then the breaching Party shal be liable and pay to the non-breaching\nParty the reasonable costs and expenses (including attorney's fees) incurred by the non-breaching Party in connection with such\nlitigation, including any appeal therefrom.\n4.\nIn the event either Party or any of its Representatives become legally compelled (by deposition, interrogatory, request for documents,\nsubpoena, civil investigation, demand, order or other legal process) to disclose any of the contents of the Confidential Information, or\neither the fact that discussions or negotiations are taking place concerning a possible Transaction, or any of the terms, conditions or other\nfacts with respect to any such possible Transaction, including the status thereof, each Party agrees that the other\n2\nParty and its Representatives may do so without liability, provided such Party (i) promptly notifies the other Party prior to any such\ndisclosure to the extent legally permissible and practicable, (ii) cooperates with the other Party in any attempts it may make to obtain a\nprotective order or other appropriate assurance that confidential treatment will be afforded the Confidential Information, and (iii) if no\nprotective order is obtained and disclosure is required, (a) furnishes only that portion of the Confidential Information that, based on the\nadvice of legal counsel, such Party is legally compelled to disclose, and (b) takes all reasonable measures to obtain reliable assurance\nthat confidential treatment will be accorded the Confidential Information.\n5.\nThe Company may elect at any time to terminate further access by PCP to the Confidential Information. At any time either Party\ndetermines not to proceed with the possible Transaction, such Party will promptly notify the other Party. Following any request by either\nParty or any of its Representatives, the other Party agrees (i) to promptly redeliver all written Confidential Information and any other\nwritten material containing or reflecting any of the Confidential Information in such Party's possession or its Representatives'\npossession, whether in hard-copy or machine readable form and including any copies thereof and (ii) all computer records, documents,\nmemoranda, notes and other writings whatsoever prepared by such Party or its Representatives based on the Confidential Information\nwill be destroyed; provided, however, that such Party and its Representatives shall be entitled to retain copies of any computer records\nand files containing any Confidential Information that have been created pursuant to automatic electronic archiving and/or back-up\nprocedures until such computer records and files have been deleted in the ordinary course, so long as such copies of Confidentia\nInformation are not accessed (except to the extent required by law) and such Confidential Information shall continue to be bound by the\nobligations of confidentiality and other obligations as provided herein. Notwithstanding the foregoing, each Party may maintain an\narchival copy of such Confidential Information under the direct control of the office of its or their General Counsel or compliance officer\nfor legal compliance purposes, which copy shall remain bound by the obligations of confidentiality herein and shall not be subject to use\nor access by a person not employed by such General Counsel's office or compliance office, as applicable, and which copy may be\nutilized solely to the extent necessary to permit such Party or its Representatives, as applicable, to comply, subject to the terms and\nconditions of this Agreement, with its required obligations. In addition, neither Party nor its Representatives shall be obligated to comply\nwith a request to return and/or destroy Confidential Information that is incorporated into any of their respective board of director or\ncommittee minutes or that is required to be retained by any of them pursuant to applicable law, including but not limited to the Sarbanes-\nOxley Act or a professional regulatory body or industry regulation, provided that any such retained Confidential Information shall be\ntreated by such Party and/or its applicable Representatives in a confidential manner using at least the same degree of care as it provides\nto\nprotect its own similar confidential information (and in any event not less than reasonable care consistent with industry best practices),\nwhich copies shall remain bound by the obligations of confidentiality hereof.\n6.\nEach Party understands and acknowledges that neither the other Party nor any of its Representatives makes any representation or\nwarranty, express or implied, as to the accuracy or completeness of the Confidentia Information. Each Party agrees that neither the other\nParty nor any of its Representatives shall have any liability to such Party or any\n3\nof its Representatives relating to or resulting from such Party's or its Representatives' use of the Confidential Information or any errors\ntherein or omissions therefrom. PCP further understands and agrees that (i) the Company (a) shall be free to conduct the process for a\nTransaction as it in its sole discretion shall determine (including changing or terminating such process, providing any information to any\nother Person, negotiating with any other Person or entering into a definitive agreement with any other Person with respect to any\ntransaction, in each case, at any time and without notice to PCP or any other Person) and (b) shall be free at its sole discretion to at any\ntime to accept or reject any proposal relating to the Company for any reason without notice to PCP or any other Person, and (ii) PCP\nshall have no claim against the Company or any of its representatives in connection with any of the foregoing.\n7.\nFor a period of one (1) year after the date hereof, each Party agrees not to solicit for employment any of the current employees of the\nother Party to whom the first Party had been directly or indirectly introduced or otherwise had initial contact with as a result of its\nconsideration of a Transaction, so long as they are employed by the other Party; provided that this Agreement shall not prohibit either\nParty or any of its Representatives from (x) hiring any such employee who responds to any genera solicitation performed by the such\nParty or any of its Representatives that is not specifically targeted at such persons, (y) soliciting any employee of the other Party\nfollowing the consummation of a Transaction or any other potential similar transaction or (z) responding to any person who initiates\ncontact with such Party regarding potential employment.\n8. Each Party hereby represents and warrants that such Party is not bound by the terms of a confidentiality agreement or other agreement\nwith a third party that would conflict with any of its obligations under this Agreement.\n9.\nIn accepting and reviewing the Confidential Information, PCP represents and warrants that it is acting solely for itself. Subject to\nSection 13 of this Agreement, PCP further represents and warrants that PCP has not discussed and hereby covenants that unless PCP\nhas\nfirst received the written consent of the Company, PCP will not discuss or share with any third party other than any of PCP's\nRepresentatives any aspect of the Confidential Information or the fact that the Company is interested in a proposed Transaction, either on\nits own or in conjunction with any other interested Person in violation of this Agreement. PCP acknowledges that the effect of this\ncovenant is that without the full disclosure to and the written consent of the Company, PCP cannot act as agent, partner, co-participant\nor\nco-venturer for any third party or third parties with respect to a proposed Transaction. In order to obtain the consent of the Company,\nwhich the Company is entitled to withhold in its sole discretion, PCP shall notify the Company of the identity of each Person for whom\nor with whom PCP had considered pursuing a possible Transaction, and the nature and interest PCP and each such Person would have in\nrespect of such possible Transaction.\n10.\nEach Party agrees that, unless and until a binding agreement is entered into between the Company and PCP with respect to the\nTransaction, (a) no contract or agreement providing for any Transaction shall be deemed to exist, (b) no obligation, commitment or\nundertaking of any kind whatsoever with respect to any Transaction shall be implied and (c) neither the Company nor PCP will be under\nany legal obligation of any kind whatsoever with respect to the Transaction by virtue of this Agreement or any other\n4\nwritten or oral expression, except, in the case of this Agreement, with respect to the matters specifically agreed to herein. Except as\nprovided in Paragraphs 8, 9, and 12 herein, nothing contained in any discussions between PCP and the Company or in any Confidential\nInformation shall be deemed to constitute a representation or warranty. Except for the matters set forth in this Agreement or in any such\nbinding agreement, neither Party shall be entitled to rely on any statement, promise, agreement or understanding, whether oral or written,\nany custom, usage of trade, course of dealing or conduct.\n11. Except as provided in Section 13 of this Agreement, PCP agrees that all (i) communications regarding the Transaction, (ii) requests for\nadditional Confidential Information, (iii) requests for facility tours or management meetings, and (iv) discussions or questions regarding\nprocedures, will be submitted or directed only to Andy Nace at anace@valhi.net or any other representative of the Company's general\ncounsel office designated from time to time by the Company in writing. Except as provided in Section 13, without the other Party's prior\nwritten consent, neither Party shall, and each Party shall direct its Representatives not to, make any contact of any nature regarding a\nproposed Transaction (including inquiries or requests concerning Confidential Information) with any supplier, customer, labor union,\nlandlord, lessor, bank or other lender of or to the other Party or any of their Affiliates.\n12.\nExcept as provided in Section 13 of this Agreement, in consideration for the Confidential Information of the Company being furnished to\nPCP under this Agreement, PCP agrees that, for a period of twelve (12) months after the date hereof (the "Standstill Period"), PCP shall\nnot and shall cause its Affiliates not to, and neither PCP nor such affiliate shall assist or encourage others to directly or indirectly, acting\nalone or in concert with others, in each case unless specifically requested in writing in advance by the Company:\n(a)\nacquire or agree, offer, seek or propose to acquire ownership (including, but not limited to, beneficial ownership as defined in\nRule 13d-3 under the Securities Exchange Act of 1934, as amended) of any shares or any class of voting securities issued by the\nCompany, or any rights or options to acquire such ownership (including from a third party);\n(b)\noffer, seek or propose a merger, consolidation or similar transaction involving the Company;\n(c)\noffer, seek or propose to purchase, lease or otherwise acquire all or a substantial portion of the assets of the Company;\n(d)\nseek or propose to influence or control the management or policies of the Company or obtain representation on the Company's\nBoard of Directors, or solicit or participate in the solicitation of any proxies or consents with respect to the securities of the\nCompany or request a list of the Company's stockholders; or\n(e)\npublicly seek or request permission to do any of the foregoing or seek any permission to make any public announcement with\nrespect to any of the foregoing.\n5\nPCP also agrees during the term of this Agreement not to publicly request the Company or any of its Representatives, directly or\nindirectly, to amend or waive any provision of this paragraph (including this sentence). Nothing herein shall preclude PCP's ability to\nadvise the Company, its Board of Directors, or its legal and financial advisors on a confidential, nonpublic basis, of the terms and\nconditions of any proposed Transaction PCP is currently considering. The obligations set forth in this Paragraph 12 shall terminate in the\nevent that, in absence of any breach by PCP of its obligations under this Agreement, (i) a Person, entity or group unaffiliated with PCP\nhas commenced a bona fide tender or exchange offer for at least a majority of the Company's outstanding shares, or (ii) the Company\nenters into a definitive agreement with a third party for the acquisition of a majority of the Company's shares or the sale of all or\nsubstantially all of the Company's assets.\nNotwithstanding anything in this Agreement to the contrary, following the expiration of the Standstill Period, PCP and its affiliates shall\nnot be prohibited by this Agreement from (i) taking any of the actions prohibited under this Section 12 during the Standstill Period,\nincluding without limitation, acquiring or offering to acquire any class of voting securities issued by the Company through a tender offer\nor otherwise, (ii) using the Confidential Information obtained pursuant to this Agreement specifically for the purpose of taking any such\naction contemplated pursuant to this Section and (iii) disclosing, to the extent required by applicable law as determined in good faith by\nPCP upon the advice of counsel, in any tender offer documents filed or furnished with the Securities and Exchange Commission, any\nConfidential Information received pursuant to this Agreement.\n13. Notwithstanding anything to the contrary in this Agreement, the Company acknowledges that PCP and certain of its Representatives\nhave had discussions and negotiations with Contran Corporation and certain of its affiliates and Representatives (collectively, "Contran")\nregarding a potential Transaction.\n14.\nNotwithstanding anything to the contrary in this Agreement, this Agreement shall not prohibit any disclosure by either Party of the fact\nthat discussions or negotiations are taking place concerning a possible Transaction or of information with respect to terms, conditions or\nother facts with respect to a possible Transaction to the extent required by securities laws or stock exchange rules as determined in good\nfaith by such Party upon the advice of counsel. In addition, the Company may disclose the fact that discussions or negotiations are taking\nplace concerning a possible Transaction, or information with respect to terms, conditions or other facts with respect to a possible\nTransaction, in the context of any "market check" performed by the Company, provided that PCP's identity (and any description of PCP\nor its business which could allow a Person to reasonably determine PCP's identity), and any proposed price in any possible Transaction,\nshall remain strictly confidential.\n15.\nEach Party hereby acknowledges that it is aware, and will advise each of their respective Representatives who are informed as to the\nmatters that are the subject of this Agreement, that the United States securities laws restrict any Person who or that has received from an\nissuer material, non-public information from purchasing or selling securities of such issuer or from communicating such information to\nany other Person under circumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such securities.\n6\n16. Notwithstanding anything contained herein to the contrary in this Agreement, nothing contained herein shall be defined, construed, or\notherwise interpreted to limit or restrict any Party's or any of its respective Representatives', or any of its or their respective affiliates',\nrights to engage in their respective businesses in the ordinary course, including ordinary course communications and commercial\ntransactions between the Parties and their respective Representatives.\n17. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware without regard to conflict of laws\nprinciples. Each Party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of\nDelaware and of the United States of America located in the State of Delaware for any action, suit or proceeding arising out of or\nrelating to this Agreement and the transactions contemplated hereby, and each Party agrees not to commence any action, suit, or\nproceeding relating thereto except in such courts, and further agrees that any service of any process, summons, notice or document by\nUS registered mail or internationally recognized carrier to such Party's address set forth above shall be effective service of process in any\naction, suit or proceeding brought against such Party in any such court. Each Party irrevocably and unconditionally waives any objection\nto the laying of venue of any action, suit or proceeding arising out of this Agreement or transactions contemplated hereby in the courts of\nthe State of Delaware or the United States of America located in the State of Delaware and hereby further irrevocably and\nunconditionally waives and agrees not to plead or claim that any such action, suit or proceeding brought in any such court has been\nbrought in an inconvenient forum.\n18. The provisions of this Agreement shall be binding solely upon and inure to the benefit of the Parties hereto and their respective\nsuccessors and permitted assigns, expressly including any successor to or acquirer of the Company. Neither this Agreement nor any of\nthe rights and/or obligations hereunder may be assigned by either Party without the prior written consent of the other Party, and any\nattempted assignment or transfer by either Party not in accordance herewith shall be null and void ab initio.\n19.\nThis Agreement represents the entire understanding and agreement of the Parties and may be modified only by a separate written\nagreement executed by each Party expressly modifying this Agreement. This Agreement supersedes and cancels any and all prior\nagreements between the Parties, express or implied, relating to the Transaction.\n20.\nIn the event that any provision or portion of this Agreement is determined to be invalid or unenforceable for any reason, in whole or in\npart, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent\npermitted by law, and such invalid or unenforceable term or provision shall be deemed replaced by a term or provision that is valid and\nenforceable and that comes closest to expressing the Parties' intention with respect to such invalid or unenforceable term or provision.\n21.\nThe failure or refusal of either Party to insist upon strict performance of any provision of this Agreement or to exercise any right in any\none or more instances or circumstances shall not be construed as a waiver or relinquishment of such provision or right, nor shall\nsuch\nfailures or refusals be deemed a custom or practice contrary to such provision or right.\n7\n22. For purposes of this Agreement, except as otherwise defined herein: (a) "Affiliate" shall mean, as to any Person, any other Person which,\ndirectly or indirectly, controls, or is controlled by, or is under common control with, such Person (for this purpose, "control" (including,\nwith its correlative meanings, "controlled by" and "under common control with") shall mean the possession, directly or indirectly, of\nthe power to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or\npartnership or other ownership interests, by contract or otherwise) and (b) "Person" shall be broadly interpreted to include any\nindividual, corporation, company, partnership, limited liability company, trust or other group or entity (including any court, government\nor agency, commission, board or authority thereof, federal, state or local, domestic, foreign or multinational).\n23. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed an original, but such\ncounterparts shall together constitute one and the same Agreement.\n24.\nThis Agreement shall terminate upon the earlier to occur of (i) the closing of the Transaction contemplated by this Agreement, and\n(ii) twenty-four (24) months after the date hereof, after which time this Agreement and the obligations of the Parties hereunder shall have\nno further force or effect; provided, however, that with respect to Confidential Information that is stamped or specifically identified on\nthe master index at the time of delivery as "Specified Sensitive Information", the receiving Party's obligations of confidentiality pursuant\nto this Agreement shall survive indefinitely, so long as neither the Company nor any of its Representatives provides to PCP or any of\nits\nRepresentatives any such "Specified Sensitive Information" without PCP's prior written consent.\n8\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned a duplicate copy of this Agreement.\nSincerely,\nTITANIUM METALS CORPORATION\nBy:\n/s/ James W. Brown\nName: James W. Brown\nTitle: Vice President and Chief Financial Officer\nACCEPTED AS OF THE DATE FIRST\nWRITTEN ABOVE:\nPRECISION CASTPARTS CORP.\nBy:\n/s/ Roger A. Cooke\nName: Roger A. Cooke\nTitle:\nSenior Vice President and General Counsel\nSchedule A to Confidentiality Agreement\nTurnover (million EUR)\nYear of\nCompanies\nCountry\nRole\nWorld\nCommunity\nTurnover\nTitanium Metals Corporation\nUSA\nT1\n751\n261\n2011\nThe Transaction\nThe transaction concerns the proposed acquisition of control of Titanium Metals Corporation by Precision Castparts through a public tender offer,\nwhich is to be filed with the US Stock Exchange Authority. The proposed transaction meets the turnover thresholds set out in Article 1(2) of the EC\nMerger Regulation and therefore constitutes a concentration which has a Community dimension.\n1\nT - Target	EX-99.4 3 d441639dex994.htm CONFIDENTIALITY AGREEMENT\nExhibit 4\nCONFIDENTIALITY AGREEMENT\nOctober 18, 2012\nPrecision Castparts Corp.\n4650 SW Macadam Ave, Suite 300\nPortland, OR 97239\nAttn: Roger C. Cooke\nSenior Vice President and General Counsel\nLadies and Gentlemen:\nIn connection with Precision Castparts Corp.’s (“PCP”) evaluation of a possible transaction involving the stock (the “Transaction”) of\nTitanium Metals Corporation (the “Company”), each Party (as defined below) has requested information from the other Party. As a condition to each\nParty’s receipt of Confidential Information (as hereinafter defined), each Party agrees to treat the Confidential Information which is furnished to it or\nits Representatives (as defined below) by the other Party or any of its Representatives in accordance with the provisions of this Confidentiality\nAgreement (this “Agreement”) and to take or refrain from taking certain other actions herein set forth. PCP and the Company shall each be referred\nto herein as a “Party” and collectively as the “Parties”.\n1. Each Party recognizes and acknowledges the competitive value and confidential nature of the Confidential Information and the damage\nthat would result to such Party and its Affiliates (as defined below) if any of the Confidential Information is disclosed to any third party.\nEach Party hereby agrees that the Confidential Information will be used solely for the purpose of evaluating, negotiating and/or financing\nthe Transaction and that all of the Confidential Information will be kept confidential in accordance with the terms of this Agreement;\nprovided that any such information may be disclosed to each Party’s respective Representatives who are actually engaged in and need to\nknow the Confidential Information for the purpose of evaluating, negotiating and/or financing the Transaction, who have been informed\nof the confidential nature of the Confidential Information, and who have been advised by such Party that such information is to be kept\nconfidential and shall not be used for any purpose other than the evaluation, negotiation and/or financing of the Transaction. Each Party\nagrees that it shall be responsible for any breach of this Agreement by any of its respective Representatives. Notwithstanding the\nforegoing, the Company acknowledges and agrees that all Confidential Information that has been provided to PCP or any of its\nRepresentatives prior to the date hereof in connection with or in preparation for any notices or filings with any European governmental\nagencies has been provided by the Company or its Representatives pursuant to this Agreement and, subject to the following sentence,\nshall be deemed Confidential Information for purposes of this Agreement. The Company further acknowledges and agrees that certain\nConfidential Information, as described on Schedule A to this Agreement, has been provided on a confidential basis by PCP or its\nRepresentatives to certain European governmental agencies, and, notwithstanding anything to the contrary in this Agreement, the\nprovision of such Confidential Information is expressly permitted hereby, shall not be deemed to be a breach of this Agreement and none\nof PCP, any of its Affiliates or any of its or their respective Representatives shall have any liability to the Company, any of its Affiliates\nor any of its or their respective Representatives in connection therewith.\n2. The term “Representatives” includes, as it applies to any party, such party’s directors, officers, employees, agents and Advisors (the term\n“Advisors” shall be defined herein to include, without limitation, advisors, financial advisors, investment bankers, in-house and outside\nattorneys, accountants, consultants, analysts, lenders and other potential sources of debt financing), if and only to the extent that such\npersons have actually been provided Confidential Information. The term “Confidential Information” means (i) all information furnished\nby the disclosing Party or any of its Representatives, whether furnished before or after the date hereof, whether oral or written, and\nregardless of the manner in which it is furnished, (ii) all analyses, compilations, forecasts, studies, interpretations or other documents\nprepared by receiving Party or its Representatives in connection with receiving Party’s evaluation of the Transaction (including, without\nlimitation, such that reflects or is based upon, in whole or part, the information furnished to receiving Party or its Representatives\npursuant hereto), and (iii) the fact that discussions or negotiations are taking place concerning a possible Transaction, and any of the\nterms, conditions or other facts with respect to any such possible Transaction, including the status thereof. The term “Confidential\nInformation” does not include any information which at the time of disclosure or thereafter is generally available to and known by the\npublic (other than as a result of its disclosure by receiving Party or its Representatives in breach of this Agreement). The Confidential\nInformation shall remain the property of the disclosing Party. No rights to use, license, or otherwise exploit the Confidential Information\nare granted to receiving Party, by implication or otherwise. Receiving Party will not by virtue of disclosing Party’s disclosure of the\nConfidential Information and/or receiving Party’s use of the Confidential Information acquire any rights with respect thereto, all of\nwhich rights shall remain exclusively with the disclosing Party.\n3. Given the nature of the Confidential Information and the Parties’ current discussions, each Party would be irreparably damaged by any\nunauthorized disclosure or use of any Confidential Information or of the Parties’ discussions or by any breach of this Agreement by the\nother Party. Without prejudice to the rights and remedies otherwise available to each Party, both Parties therefore, agree that each Party\nshall be entitled, without the requirement of posting a bond or other security, to equitable relief, including an injunction or specific\nperformance, in the event of any breach or threatened breach of the provisions of this Agreement by the other Party. Such remedies shall\nnot be deemed to be exclusive remedies but shall be in addition to all other remedies available at law or equity. If a court of competent\njurisdiction determines that any Party has breached this Agreement, then the breaching Party shall be liable and pay to the non-breaching\nParty the reasonable costs and expenses (including attorney’s fees) incurred by the non-breaching Party in connection with such\nlitigation, including any appeal therefrom.\n4. In the event either Party or any of its Representatives become legally compelled (by deposition, interrogatory, request for documents,\nsubpoena, civil investigation, demand, order or other legal process) to disclose any of the contents of the Confidential Information, or\neither the fact that discussions or negotiations are taking place concerning a possible Transaction, or any of the terms, conditions or other\nfacts with respect to any such possible Transaction, including the status thereof, each Party agrees that the other\n2\nParty and its Representatives may do so without liability, provided such Party (i) promptly notifies the other Party prior to any such\ndisclosure to the extent legally permissible and practicable, (ii) cooperates with the other Party in any attempts it may make to obtain a\nprotective order or other appropriate assurance that confidential treatment will be afforded the Confidential Information, and (iii) if no\nprotective order is obtained and disclosure is required, (a) furnishes only that portion of the Confidential Information that, based on the\nadvice of legal counsel, such Party is legally compelled to disclose, and (b) takes all reasonable measures to obtain reliable assurance\nthat confidential treatment will be accorded the Confidential Information.\n5. The Company may elect at any time to terminate further access by PCP to the Confidential Information. At any time either Party\ndetermines not to proceed with the possible Transaction, such Party will promptly notify the other Party. Following any request by either\nParty or any of its Representatives, the other Party agrees (i) to promptly redeliver all written Confidential Information and any other\nwritten material containing or reflecting any of the Confidential Information in such Party’s possession or its Representatives’\npossession, whether in hard-copy or machine readable form and including any copies thereof and (ii) all computer records, documents,\nmemoranda, notes and other writings whatsoever prepared by such Party or its Representatives based on the Confidential Information\nwill be destroyed; provided, however, that such Party and its Representatives shall be entitled to retain copies of any computer records\nand files containing any Confidential Information that have been created pursuant to automatic electronic archiving and/or back-up\nprocedures until such computer records and files have been deleted in the ordinary course, so long as such copies of Confidential\nInformation are not accessed (except to the extent required by law) and such Confidential Information shall continue to be bound by the\nobligations of confidentiality and other obligations as provided herein. Notwithstanding the foregoing, each Party may maintain an\narchival copy of such Confidential Information under the direct control of the office of its or their General Counsel or compliance officer\nfor legal compliance purposes, which copy shall remain bound by the obligations of confidentiality herein and shall not be subject to use\nor access by a person not employed by such General Counsel’s office or compliance office, as applicable, and which copy may be\nutilized solely to the extent necessary to permit such Party or its Representatives, as applicable, to comply, subject to the terms and\nconditions of this Agreement, with its required obligations. In addition, neither Party nor its Representatives shall be obligated to comply\nwith a request to return and/or destroy Confidential Information that is incorporated into any of their respective board of director or\ncommittee minutes or that is required to be retained by any of them pursuant to applicable law, including but not limited to the Sarbanes-\nOxley Act or a professional regulatory body or industry regulation, provided that any such retained Confidential Information shall be\ntreated by such Party and/or its applicable Representatives in a confidential manner using at least the same degree of care as it provides\nto protect its own similar confidential information (and in any event not less than reasonable care consistent with industry best practices),\nwhich copies shall remain bound by the obligations of confidentiality hereof.\n6. Each Party understands and acknowledges that neither the other Party nor any of its Representatives makes any representation or\nwarranty, express or implied, as to the accuracy or completeness of the Confidential Information. Each Party agrees that neither the other\nParty nor any of its Representatives shall have any liability to such Party or any\n3\nof its Representatives relating to or resulting from such Party’s or its Representatives’ use of the Confidential Information or any errors\ntherein or omissions therefrom. PCP further understands and agrees that (i) the Company (a) shall be free to conduct the process for a\nTransaction as it in its sole discretion shall determine (including changing or terminating such process, providing any information to any\nother Person, negotiating with any other Person or entering into a definitive agreement with any other Person with respect to any\ntransaction, in each case, at any time and without notice to PCP or any other Person) and (b) shall be free at its sole discretion to at any\ntime to accept or reject any proposal relating to the Company for any reason without notice to PCP or any other Person, and (ii) PCP\nshall have no claim against the Company or any of its representatives in connection with any of the foregoing.\n7. For a period of one (1) year after the date hereof, each Party agrees not to solicit for employment any of the current employees of the\nother Party to whom the first Party had been directly or indirectly introduced or otherwise had initial contact with as a result of its\nconsideration of a Transaction, so long as they are employed by the other Party; provided that this Agreement shall not prohibit either\nParty or any of its Representatives from (x) hiring any such employee who responds to any general solicitation performed by the such\nParty or any of its Representatives that is not specifically targeted at such persons, (y) soliciting any employee of the other Party\nfollowing the consummation of a Transaction or any other potential similar transaction or (z) responding to any person who initiates\ncontact with such Party regarding potential employment.\n8. Each Party hereby represents and warrants that such Party is not bound by the terms of a confidentiality agreement or other agreement\nwith a third party that would conflict with any of its obligations under this Agreement.\n9. In accepting and reviewing the Confidential Information, PCP represents and warrants that it is acting solely for itself. Subject to\nSection 13 of this Agreement, PCP further represents and warrants that PCP has not discussed and hereby covenants that unless PCP has\nfirst received the written consent of the Company, PCP will not discuss or share with any third party other than any of PCP’s\nRepresentatives any aspect of the Confidential Information or the fact that the Company is interested in a proposed Transaction, either on\nits own or in conjunction with any other interested Person in violation of this Agreement. PCP acknowledges that the effect of this\ncovenant is that without the full disclosure to and the written consent of the Company, PCP cannot act as agent, partner, co-participant or\nco-venturer for any third party or third parties with respect to a proposed Transaction. In order to obtain the consent of the Company,\nwhich the Company is entitled to withhold in its sole discretion, PCP shall notify the Company of the identity of each Person for whom\nor with whom PCP had considered pursuing a possible Transaction, and the nature and interest PCP and each such Person would have in\nrespect of such possible Transaction.\n10. Each Party agrees that, unless and until a binding agreement is entered into between the Company and PCP with respect to the\nTransaction, (a) no contract or agreement providing for any Transaction shall be deemed to exist, (b) no obligation, commitment or\nundertaking of any kind whatsoever with respect to any Transaction shall be implied and (c) neither the Company nor PCP will be under\nany legal obligation of any kind whatsoever with respect to the Transaction by virtue of this Agreement or any other\n4\nwritten or oral expression, except, in the case of this Agreement, with respect to the matters specifically agreed to herein. Except as\nprovided in Paragraphs 8, 9, and 12 herein, nothing contained in any discussions between PCP and the Company or in any Confidential\nInformation shall be deemed to constitute a representation or warranty. Except for the matters set forth in this Agreement or in any such\nbinding agreement, neither Party shall be entitled to rely on any statement, promise, agreement or understanding, whether oral or written,\nany custom, usage of trade, course of dealing or conduct.\n11. Except as provided in Section 13 of this Agreement, PCP agrees that all (i) communications regarding the Transaction, (ii) requests for\nadditional Confidential Information, (iii) requests for facility tours or management meetings, and (iv) discussions or questions regarding\nprocedures, will be submitted or directed only to Andy Nace at anace@valhi.net or any other representative of the Company’s general\ncounsel office designated from time to time by the Company in writing. Except as provided in Section 13, without the other Party’s prior\nwritten consent, neither Party shall, and each Party shall direct its Representatives not to, make any contact of any nature regarding a\nproposed Transaction (including inquiries or requests concerning Confidential Information) with any supplier, customer, labor union,\nlandlord, lessor, bank or other lender of or to the other Party or any of their Affiliates.\n12. Except as provided in Section 13 of this Agreement, in consideration for the Confidential Information of the Company being furnished to\nPCP under this Agreement, PCP agrees that, for a period of twelve (12) months after the date hereof (the “Standstill Period”), PCP shall\nnot and shall cause its Affiliates not to, and neither PCP nor such affiliate shall assist or encourage others to directly or indirectly, acting\nalone or in concert with others, in each case unless specifically requested in writing in advance by the Company:\n(a)\nacquire or agree, offer, seek or propose to acquire ownership (including, but not limited to, beneficial ownership as defined in\nRule 13d-3 under the Securities Exchange Act of 1934, as amended) of any shares or any class of voting securities issued by the\nCompany, or any rights or options to acquire such ownership (including from a third party);\n(b) offer, seek or propose a merger, consolidation or similar transaction involving the Company;\n(c)\noffer, seek or propose to purchase, lease or otherwise acquire all or a substantial portion of the assets of the Company;\n(d) seek or propose to influence or control the management or policies of the Company or obtain representation on the Company’s\nBoard of Directors, or solicit or participate in the solicitation of any proxies or consents with respect to the securities of the\nCompany or request a list of the Company’s stockholders; or\n(e) publicly seek or request permission to do any of the foregoing or seek any permission to make any public announcement with\nrespect to any of the foregoing.\n5\nPCP also agrees during the term of this Agreement not to publicly request the Company or any of its Representatives, directly or\nindirectly, to amend or waive any provision of this paragraph (including this sentence). Nothing herein shall preclude PCP’s ability to\nadvise the Company, its Board of Directors, or its legal and financial advisors on a confidential, nonpublic basis, of the terms and\nconditions of any proposed Transaction PCP is currently considering. The obligations set forth in this Paragraph 12 shall terminate in the\nevent that, in absence of any breach by PCP of its obligations under this Agreement, (i) a Person, entity or group unaffiliated with PCP\nhas commenced a bona fide tender or exchange offer for at least a majority of the Company’s outstanding shares, or (ii) the Company\nenters into a definitive agreement with a third party for the acquisition of a majority of the Company’s shares or the sale of all or\nsubstantially all of the Company’s assets.\nNotwithstanding anything in this Agreement to the contrary, following the expiration of the Standstill Period, PCP and its affiliates shall\nnot be prohibited by this Agreement from (i) taking any of the actions prohibited under this Section 12 during the Standstill Period,\nincluding without limitation, acquiring or offering to acquire any class of voting securities issued by the Company through a tender offer\nor otherwise, (ii) using the Confidential Information obtained pursuant to this Agreement specifically for the purpose of taking any such\naction contemplated pursuant to this Section and (iii) disclosing, to the extent required by applicable law as determined in good faith by\nPCP upon the advice of counsel, in any tender offer documents filed or furnished with the Securities and Exchange Commission, any\nConfidential Information received pursuant to this Agreement.\n13. Notwithstanding anything to the contrary in this Agreement, the Company acknowledges that PCP and certain of its Representatives\nhave had discussions and negotiations with Contran Corporation and certain of its affiliates and Representatives (collectively, “Contran”)\nregarding a potential Transaction.\n14. Notwithstanding anything to the contrary in this Agreement, this Agreement shall not prohibit any disclosure by either Party of the fact\nthat discussions or negotiations are taking place concerning a possible Transaction or of information with respect to terms, conditions or\nother facts with respect to a possible Transaction to the extent required by securities laws or stock exchange rules as determined in good\nfaith by such Party upon the advice of counsel. In addition, the Company may disclose the fact that discussions or negotiations are taking\nplace concerning a possible Transaction, or information with respect to terms, conditions or other facts with respect to a possible\nTransaction, in the context of any “market check” performed by the Company, provided that PCP’s identity (and any description of PCP\nor its business which could allow a Person to reasonably determine PCP’s identity), and any proposed price in any possible Transaction,\nshall remain strictly confidential.\n15. Each Party hereby acknowledges that it is aware, and will advise each of their respective Representatives who are informed as to the\nmatters that are the subject of this Agreement, that the United States securities laws restrict any Person who or that has received from an\nissuer material, non-public information from purchasing or selling securities of such issuer or from communicating such information to\nany other Person under circumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such securities.\n6\n16. Notwithstanding anything contained herein to the contrary in this Agreement, nothing contained herein shall be defined, construed, or\notherwise interpreted to limit or restrict any Party’s or any of its respective Representatives’, or any of its or their respective affiliates’,\nrights to engage in their respective businesses in the ordinary course, including ordinary course communications and commercial\ntransactions between the Parties and their respective Representatives.\n17. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware without regard to conflict of laws\nprinciples. Each Party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of\nDelaware and of the United States of America located in the State of Delaware for any action, suit or proceeding arising out of or\nrelating to this Agreement and the transactions contemplated hereby, and each Party agrees not to commence any action, suit, or\nproceeding relating thereto except in such courts, and further agrees that any service of any process, summons, notice or document by\nUS registered mail or internationally recognized carrier to such Party’s address set forth above shall be effective service of process in any\naction, suit or proceeding brought against such Party in any such court. Each Party irrevocably and unconditionally waives any objection\nto the laying of venue of any action, suit or proceeding arising out of this Agreement or transactions contemplated hereby in the courts of\nthe State of Delaware or the United States of America located in the State of Delaware and hereby further irrevocably and\nunconditionally waives and agrees not to plead or claim that any such action, suit or proceeding brought in any such court has been\nbrought in an inconvenient forum.\n18. The provisions of this Agreement shall be binding solely upon and inure to the benefit of the Parties hereto and their respective\nsuccessors and permitted assigns, expressly including any successor to or acquirer of the Company. Neither this Agreement nor any of\nthe rights and/or obligations hereunder may be assigned by either Party without the prior written consent of the other Party, and any\nattempted assignment or transfer by either Party not in accordance herewith shall be null and void ab initio.\n19. This Agreement represents the entire understanding and agreement of the Parties and may be modified only by a separate written\nagreement executed by each Party expressly modifying this Agreement. This Agreement supersedes and cancels any and all prior\nagreements between the Parties, express or implied, relating to the Transaction.\n20. In the event that any provision or portion of this Agreement is determined to be invalid or unenforceable for any reason, in whole or in\npart, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent\npermitted by law, and such invalid or unenforceable term or provision shall be deemed replaced by a term or provision that is valid and\nenforceable and that comes closest to expressing the Parties’ intention with respect to such invalid or unenforceable term or provision.\n21. The failure or refusal of either Party to insist upon strict performance of any provision of this Agreement or to exercise any right in any\none or more instances or circumstances shall not be construed as a waiver or relinquishment of such provision or right, nor shall such\nfailures or refusals be deemed a custom or practice contrary to such provision or right.\n7\n22. For purposes of this Agreement, except as otherwise defined herein: (a) “Affiliate” shall mean, as to any Person, any other Person which,\ndirectly or indirectly, controls, or is controlled by, or is under common control with, such Person (for this purpose, “control” (including,\nwith its correlative meanings, “controlled by” and “under common control with”) shall mean the possession, directly or indirectly, of\nthe power to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or\npartnership or other ownership interests, by contract or otherwise); and (b) “Person” shall be broadly interpreted to include any\nindividual, corporation, company, partnership, limited liability company, trust or other group or entity (including any court, government\nor agency, commission, board or authority thereof, federal, state or local, domestic, foreign or multinational).\n23. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed an original, but such\ncounterparts shall together constitute one and the same Agreement.\n24. This Agreement shall terminate upon the earlier to occur of (i) the closing of the Transaction contemplated by this Agreement, and\n(ii) twenty-four (24) months after the date hereof, after which time this Agreement and the obligations of the Parties hereunder shall have\nno further force or effect; provided, however, that with respect to Confidential Information that is stamped or specifically identified on\nthe master index at the time of delivery as “Specified Sensitive Information”, the receiving Party’s obligations of confidentiality pursuant\nto this Agreement shall survive indefinitely, so long as neither the Company nor any of its Representatives provides to PCP or any of its\nRepresentatives any such “Specified Sensitive Information” without PCP’s prior written consent.\n8\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned a duplicate copy of this Agreement.\nSincerely,\nTITANIUM METALS CORPORATION\nBy: /s/ James W. Brown\nName: James W. Brown\nTitle: Vice President and Chief Financial Officer\nACCEPTED AS OF THE DATE FIRST\nWRITTEN ABOVE:\nPRECISION CASTPARTS CORP.\nBy: /s/ Roger A. Cooke\nName: Roger A. Cooke\nTitle: Senior Vice President and General Counsel\nSchedule A to Confidentiality Agreement\nCompanies\nCountry\nRole\nTurnover (million EUR)\nYear of\nTurnover\nWorld\nCommunity\nTitanium Metals Corporation\nUSA\nT\n751\n261\n2011\nThe Transaction\nThe transaction concerns the proposed acquisition of control of Titanium Metals Corporation by Precision Castparts through a public tender offer,\nwhich is to be filed with the US Stock Exchange Authority. The proposed transaction meets the turnover thresholds set out in Article 1(2) of the EC\nMerger Regulation and therefore constitutes a concentration which has a Community dimension.\nT = Target\n1\n1
32a2f7e052178d6f307b7faf29429b7d.pdf	effective_date jurisdiction party term	EX-10.10 2 dex1010.htm NONCOMPETITION AND CONFIDENTIALITY AGREEMENT, WILLIAM H. HESS\nExhibit 10.10\nNONCOMPETITION AND CONFIDENTIALITY AGREEMENT\nThis Agreement (this “Agreement”) made as of January 1, 2004, by and between American Tower Corporation, a Delaware corporation\n(“ATC”), and William H. Hess (“Optionee”), an individual residing at\n.\nWHEREAS, ATC, American Tower International, Inc., a Delaware corporation (“ATC International”), and ATC South America Holding Corp,\na Delaware corporation (“Holding”), are parties to a Stockholder/Optionee Agreement, dated as of January 1, 2004, and of which Optionee executed\na counterpart on January 1, 2004 (collectively, the “Stockholder Agreement”), pursuant to which Holding will issue to Optionee options to purchase\nshares of its Common Stock, par value $.01 per share; and\nWHEREAS, Optionee is an employee of ATC or one of its subsidiaries and will perform services for Holding;\nNOW, THEREFORE, in consideration of the consummation of the transactions contemplated by the Stockholder Agreement, the sum of One\nDollar ($1.00), the material covenants and agreements contained herein, and other good and valuable consideration, the receipt, adequacy and\nsufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, do covenant and agree as follows:\nSection 1. Definitions. Terms used in this Agreement which are not defined herein but which are defined in the Stockholder Agreement shall\nhave the respective meanings so defined.\nConfidential Information shall mean any and all information (excluding information in the public domain other than as a direct or indirect\nresult of any breach by Optionee of the provisions of this Agreement) related to the business, operations, management, assets, property, plans or\nprospects, condition, financial or other, or results of operation of ATC, any Affiliate of ATC or any of their respective successors or assigns,\nincluding without limitation:\n(a)\nthe whole or any portion or phase of any business plans, financial information, purchasing data, supplier or customer data,\naccounting data, or computer programs (including source and object codes), tapes, discs, data, software or other information;\n(b) the whole or any portion or phase of any marketing or sales information or technique, sales records, customer lists, supplier lists,\nprices, sales projections or other listings of names, addresses, or telephone numbers, or other sales information;\n(c)\nthe whole or any portion or phase of any employee payroll, fringe benefit, salary, bonus, commission or other form of\ncompensation information and all employee personnel information, including information relating to performance evaluations,\ndiscipline, employee conduct, complaints and other matters relating to employment of any Person; and\n(d) Intellectual Property;\nwhether or not any of the foregoing has been made, developed and/or conceived by Optionee or by others in the employ of any such Person.\nNotwithstanding the foregoing, the term “Confidential Information”\nshall not include and information reasonably necessary for the conducting of any activity expressly excluded from the definition of “Proscribed\nActivity” hereunder.\nCovered Territory shall mean (a) while Optionee is employed by ATC or any of its Affiliates, North, South and Latin America, Europe and all\nother areas in which ATC or any of its Affiliates has invested or proposes to invest; and (b) thereafter, North America and any other markets where\nOptionee has been or is involved or is negotiating a proposed investment, acquisition or other transaction on behalf of ATC or any of its Affiliates.\nGood Reason shall mean:\n(a) the assignment to Optionee of any duties inconsistent in any material respect with his current position, authority, duties or\nresponsibilities or any other action by ATC or Holding or any of their Affiliates that results in a diminution, in any material respect, in\nsuch position, authority, duties or responsibilities; or\n(b) a material reduction in Optionee’s compensation or other benefits (taking into account the compensation and other benefits from ATC or\nHolding and their Affiliates from whom he may, from time to time, receive compensation), the result of which is to place Optionee in a\nmaterially less favorable position as to such compensation and benefits compared to other employees of ATC or Holding and their\nAffiliates of similar stature and position; or\n(c) any other failure by ATC or Holding or any of their Affiliates to comply in any material respect with any material provision of the\nStockholder Agreement;\nthat (i) is incapable of cure, or (ii) has not been cured or remedied promptly (and in any event within thirty (30) days) after written notice to the\nboard of directors of ATC from Optionee specifying in reasonable detail the nature of such assignment, action, reduction or failure.\nImmediate Family shall mean spouses, children and parents, whether related by blood, adoption or marriage.\nIntellectual Property shall mean, with respect to Optionee, any and all research, information, inventions, designs, procedures, developments,\ndiscoveries, improvements, patents and applications therefor, trademarks and applications therefor, service marks, trade names, copyrights and\napplications therefor, trade secrets, drawing, plans, systems, methods, specifications, computer software programs, tapes, discs and related data\nprocessing software (including object and source codes) owned by Optionee or in which he has an interest and all other manufacturing, engineering,\ntechnical, research and development data and know-how made, conceived, developed and/or acquired by Optionee solely or jointly with others\nduring the period of his employment with ATC or any of its Affiliates or within one year thereafter, which relate to the manufacture, production or\nprocessing of any products developed or sold by ATC or any of its Affiliates during the term of this Agreement or which are within the scope of or\nusable in connection with ATC’s or any of its Affiliates’ business as it may, from time to time, hereafter be conducted or proposed to be conducted.\nOptionee Forfeiture Event shall mean any of the following acts (other than as a result of the death or Disability of Optionee) committed by\nOptionee:\n(a) any willful or gross failure or refusal to perform, or any willful or gross misconduct in the performance of, any significant portion of\nhis obligations, duties and responsibilities as an\n2\nemployee of Holding, the effect of which has been or reasonably could be expected to materially and adversely affect the business of ATC or\nany of its Affiliates, as determined in good faith by the ATC Board of Directors, and that (i) is incapable of cure, or (ii) has not been cured or\nremedied as promptly as is reasonably possible (and in any event within thirty (30) days) after written notice from the Holding Board to\nOptionee specifying in reasonable detail the nature of such failure, refusal or misconduct, or\n(b) material breach of the provisions of Section 2, 3 or 4 of this Agreement which (i) is incapable of cure, or (ii) has not been cured or\nremedied promptly (and in any event within thirty (30) days) after written notice from the Holding Board to Optionee specifying in reasonable\ndetail the nature of such breach, or\n(c) Optionee is convicted of, pleads guilty or nolo contendero to any act of fraud, embezzlement or misappropriation or other crime\ninvolving moral turpitude in connection with his employment by Holding or any of its Affiliates intended by Optionee to result in substantial\npersonal enrichment and which adversely affects the business of ATC or any of its Affiliates, all as determined in good faith by the ATC Board\nof Directors.\nProscribed Activity shall mean any and all activities related to (a) the construction, ownership, operation, leasing or management of\ntelecommunications or broadcast towers, (b) providing network development services or components for wireless service providers or broadcasters,\n(c) providing high speed Internet access and related services via satellite to foreign-based Internet service providers, telephone or other\ntelecommunciations companies, and other businesses, or (d) providing other satellite and Internet protocol network transmission services.\nRestricted Period shall mean a period commencing with the date hereof and terminating the latest of (a) one year after exercise of the put (or\ncall) provided for in Section 6 of the Stockholder Agreement, (b) two years after the sooner to occur of (i) an Optionee Forfeiture Event, or (ii) the\nresignation by Optionee from all positions with ATC and each of its subsidiaries other than for Good Reason, or (c) one year after the resignation by\nOptionee from all positions with ATC and each of its subsidiaries for the reason set forth in paragraph (d) of the definition of Good Reason.\nSection 2. Confidentiality. Optionee shall not, either during the Restricted Period or thereafter, reveal or disclose to any person outside ATC\nand its subsidiaries or use for his own benefit, without ATC’s specific prior written authorization, whether by private communication or by public\naddress or publication or otherwise, any Confidential Information. All originals and copies of any Confidential Information, relating to the business\nof ATC or any of its subsidiaries, however and whenever produced, shall be the sole property of ATC and its subsidiaries, not to be removed from\nthe premises or custody of ATC or its subsidiaries without in each instance first obtaining prior written consent or authorization of ATC.\nSection 3. Disclosure and Assignment of Intellectual Property. Optionee shall promptly disclose to ATC and any successor or assign, and grant\nto ATC, and its successors and assigns (without any separate remuneration or compensation other than that received by him from time to time in the\ncourse of his employment) his entire right, title and interest throughout the world in and to all Intellectual Property. It is understood and agreed that\nOptionee has heretofore disclosed to ATC, and assigned to it, all Intellectual Property now known to him over which he has any control. Optionee\nagrees to execute all appropriate patent applications securing all United States and foreign patents on all Intellectual Property, and to do, execute and\ndeliver any and all acts and instruments that may be necessary or proper to vest all Intellectual Property in ATC or its nominee or designee and to\nenable ATC, or its nominee or designee, to obtain all such patents; and Optionee agrees to render to ATC, or its nominee or designee, all such\n3\nreasonable assistance as it may require in the prosecution of all such patent applications and applications for the reissue of such patents, and in the\nprosecution or defense of all interferences which may be declared involving any of said patent applications or patents, but the expense of all such\nassignments and patent applications, or all other proceedings referred to herein above, shall be borne by ATC. Optionee shall be entitled to fair and\nreasonable compensation for any such assistance requested by ATC or its nominee or designee and furnished by him after the termination of his\nemployment.\nSection 4. Restriction. ATC through its subsidiaries intends to continue and expand the business heretofore conducted by it and them and it and\nin connection therewith ATC and its subsidiaries have invested and may in the future be required to invest substantial sums of money, directly or\nindirectly, and as Optionee recognizes that ATC would be substantially injured by Optionee disclosing to others, or by Optionee using for his own\nbenefit, any Intellectual Property or any other Confidential Information he has obtained or shall obtain from ATC or any of its subsidiaries, or which\nhe may now possess and which he has made available to ATC or any of its subsidiaries, Optionee agrees that during the Restricted Period:\n(a) Neither he nor any member of his Immediate Family will be interested, directly or indirectly, as an investor in any other Entity, business\nor enterprise within the Covered Territory, which is engaged in any Proscribed Activity (except as an investor in securities (i) issued by\nATC or any of its subsidiaries or (ii) listed on a national securities exchange or actively traded over the counter so long as such\ninvestments are in amounts not significant as compared to his total investments and do not exceed one percent (1%) of the outstanding\nsecurities of the issuer of the same class or issue); and\n(b) Other than in connection with his serving as an employee of ATC and its subsidiaries, he will not, directly or indirectly, for his own\naccount or as employee, officer, director, partner, trustee, principal, member, joint venturer, agent, adviser, consultant or otherwise,\nengage within the Covered Territory, in any phase of any Proscribed Activity.\nOptionee further agrees that during the Restricted Period, he will not, directly or indirectly, solicit business for a Proscribed Activity from any\nPerson, business or enterprise which is, or proposes to be, a customer of ATC or any of its subsidiaries or any of their respective successors or\nassigns, or from any Person, business or enterprise with which ATC or any of its subsidiaries or any of their respective successors or assigns is\nnegotiating or holding discussion or to which it has made a proposal at the time of such termination, induce any such Person, business or enterprise\nnot to undertake, or to curtail or cancel business with ATC or any of its subsidiaries or any of their respective successors or assigns, induce or\nattempt to induce any employee of ATC or any of its subsidiaries or any of their respective successors or assigns to terminate his employment\ntherewith, or intentionally divulge or utilize for the direct or indirect benefit (financial or other) of himself or any other Person, business or\nenterprise, any Intellectual Property or any Confidential Information he has obtained as an employee and/or stockholder of ATC or any of its\nsubsidiaries.\nThis Agreement shall be deemed to consist of a series of separate covenants, one for each line of business carried on by ATC and its\nsubsidiaries and each region included within the geographic areas referred to in this Section. Optionee and ATC are of the belief that the Restricted\nPeriod, the Proscribed Activity and the Covered Territory herein specified are reasonable, in light of the circumstances as they exist on the date upon\nwhich this Agreement has been executed, including without limitation the nature of the business in which ATC and its subsidiaries are engaged and\nproposes to engage, the state of their product development and Optionee’s knowledge of such business and his prior affiliations with and interest in\nATC. However, if such period, activity or area should be adjudged unreasonable in any Legal Action, whether at law or in equity, then the Restricted\nPeriod shall be reduced by such period of time, the\n4\nProscribed Activity shall be reduced by such activities, or the Covered Territory shall be reduced by such area, or any combination thereof, as are\ndeemed unreasonable, so that this covenant may be enforced in such area, with respect to such activities and during such period of time as is\nadjudged to be reasonable.\nSection 5. Security for Optionee Obligations. Optionee’s obligations under this Agreement shall be secured by twenty percent (20%) of the\ngross sale proceeds (before deduction of commissions, discounts, brokerage fees or other fees and expenses) of (a) all shares of capital stock and\nother securities issued by Holding to Optionee, and (b) all shares of capital stock and other securities issued by Holding received by Optionee\npursuant to any distribution to him or otherwise acquired by him. Optionee and ATC agree that all such proceeds shall be held by an escrow agent or\nagents reasonably acceptable to Optionee and ATC and subject to the terms and conditions of an escrow agreement to be executed by ATC and\nOptionee and reasonably satisfactory to ATC and Optionee.\nSection 6. Miscellaneous Provisions.\n(a) Assignment; Successors and Assigns. In the event that ATC shall be merged with, or consolidated into, any other Entity, or in the event that\nit shall sell and transfer substantially all of its assets to another Entity, the terms of this Agreement shall inure to the benefit of, and be assumed by,\nthe Entity resulting from such merger or consolidation, or to which ATC’s assets shall be sold and transferred. This Agreement shall not be\nassignable by Optionee, but it shall be binding upon his heirs, executors, administrators and legal representatives to the extent they constitute\nmembers of his Immediate Family. Nothing in this Agreement expressed or implied is intended to and shall not be construed to confer upon or create\nin any person (other than the parties hereto and their permitted successors and assigns) any rights or remedies under or by reason of this Agreement.\n(b) Specific Performance; Other Rights and Remedies. Optionee recognizes and agrees that ATC’s remedy at law for any breach of the\nprovisions of this Agreement, including without limitation Sections 2, 3, or 4, would be inadequate, and he agrees that for breach of such provisions,\nATC shall, in addition to such other remedies as may be available to it at law or in equity or as provided in this Agreement, be entitled to injunctive\nrelief and to enforce its rights by an action for specific performance to the extent permitted by applicable law. Without limiting the generality of the\nforegoing, in the event of a breach or threatened breach by Optionee of the provisions of this Agreement, ATC shall be entitled to an injunction\nrestraining Optionee from soliciting employees, customers or suppliers, or from disclosing, in whole or in part, any Confidential Information, or\nfrom rendering any services to any Person to whom such information has been disclosed, or is threatened to be disclosed, from engaging,\nparticipating or otherwise being connected with any business described in Section 4 or from otherwise violating the terms of this Agreement.\nNothing herein contained shall be construed as prohibiting each party from pursuing any other remedies available to it pursuant to the provisions of,\nand subject to the limitations contained in, this Agreement for such breach or threatened breach; provided, however, that none of the parties shall\npursue, and each party hereby waives, any punitive, indirect, special, incidental, exemplary, consequential or similar damages arising out of this\nAgreement (including without limitation damages for diminution in value and loss of anticipated profits) and the multiplied portion of damages.\n(c) Entire Agreement. This Agreement constitutes the entire agreement between ATC and Optionee with respect to the subject matter hereof,\nand supersedes all prior agreements, arrangements, covenants, promises, conditions, understandings, inducements, representations and negotiations,\nexpressed or implied, oral or written, among them as to such subject matter.\n(d) Waivers; Amendments. Any provision of this Agreement to the contrary notwithstanding, changes in or additions to this Agreement may be\nmade, or compliance with any term, covenant, agreement, condition or provision set forth herein may be omitted or waived (either generally or in a\n5\nparticular instance and either retroactively or prospectively) with, but only with, the consent in writing of the parties hereto. Any consent may be\ngiven subject to satisfaction of conditions stated therein. The failure to insist upon the strict provisions of any covenant, term, condition or other\nprovision of this Agreement or to exercise any right or remedy thereunder shall not constitute a waiver of any such covenant, term, condition or other\nprovision thereof or default in connection therewith. The waiver of any covenant, term, condition or other provision thereof or default thereunder\nshall not affect or alter this Agreement in any other respect, and each and every covenant, term, condition or other provision of this Agreement shall,\nin such event, continue in full force and effect, except as so waived, and shall be operative with respect to any other then existing or subsequent\ndefault in connection therewith.\n(e) Notices. All notices and other communications which by any provision of this Agreement are required or permitted to be given shall be\ngiven in writing and shall be effective (i) five (5) days after being mailed by first-class, express mail, postage prepaid, (ii) the next day when sent by\novernight by recognized mail courier service, (iii) upon confirmation when sent by telex, telegram, telecopy or other similar form of rapid\ntransmission, confirmed by mailing (by first class or express mail, postage prepaid, or recognized overnight mail courier service) written\nconfirmation at substantially the same time as such rapid transmission, (iv) upon delivery personally delivered to an officer of the receiving party, or\n(v) upon delivery personally delivered to the Optionee. All such communications shall be mailed, set or delivered as set forth below or at such other\naddresses as the party entitled thereto shall have designated by notice as herein provided.\n(i) if to Holding or ATC, at 116 Huntington Avenue, Boston, Massachusetts 02116 Attention: Chief Executive Officer and Chief\nFinancial Officer, Telecopier No.: (617) 375-7575 with a copy (which shall not constitute notice to ATC or Holding) to Sullivan & Worcester\nLLP, One Post Office Square, Boston, Massachusetts 02109, Attention: William J. Curry, Esq., Telecopier No.: (617) 338-2880) and\n(ii) if to Optionee, at\n, Telecopier No.\n.\n(f) Severability. If any provision of this Agreement shall be held or deemed to be, or shall in fact be, invalid, inoperative, illegal or\nunenforceable as applied to any particular case in any jurisdiction or jurisdictions, or in all jurisdictions or in all cases, because of the conflicting of\nany provision with any constitution or statute or rule of public policy or for any other reason, such circumstance shall not have the effect of rendering\nthe provision or provisions in question invalid, inoperative, illegal or unenforceable in any other jurisdiction or in any other case or circumstance or\nof rendering any other provision or provisions herein contained invalid, inoperative, illegal or unenforceable to the extent that such other provisions\nare not themselves actually in conflict with such constitution, statute or rule of public policy, but this Agreement shall be reformed and construed in\nany such jurisdiction or case as if such invalid, inoperative, illegal or unenforceable provision had never been contained herein and such provision\nreformed so that it would be valid, operative and enforceable to the maximum extent permitted in such jurisdiction or in such case, except when such\nreformation and construction could operate as an undue hardship on either party, or constitute a substantial deviation from the general intent and\npurpose of such party as reflected in this Agreement. The parties shall endeavor in good faith negotiations to replace the invalid, inoperative, illegal\nor unenforceable provisions with valid, operative, legal and enforceable provisions the economic effect of which comes as close as possible to that of\nthe invalid, inoperative, illegal or unenforceable provisions.\n(g) Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which\ntogether shall constitute one and the same instrument,\n6\nbinding upon all the parties hereto. In pleading or proving any provision of this Agreement, it shall not be necessary to produce more than one of\nsuch counterparts.\n(h) Section Headings. The headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or\ninterpretation of this Agreement.\n(i) Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the applicable laws of\nthe United States of America and the domestic substantive laws of the State of Georgia without giving effect to any choice or conflict of laws\nprovision or rule that would cause the application of domestic substantive laws of any other jurisdiction. Anything in this Agreement to the contrary\nnotwithstanding, in the event of any dispute between the parties which results in a Legal Action, the prevailing party shall be entitled to receive from\nthe non-prevailing party reimbursement for reasonable legal fees and expenses incurred by such prevailing party in such Legal Action.\n(j) Further Acts. Each party agrees that at any time, and from time to time, before and after the consummation of the transactions contemplated\nby this Agreement, it will do all such things and execute and deliver all such agreements, assignments, instruments, other documents and assurances,\nas any other party or its counsel reasonably deems necessary or desirable in order to carry out the terms and conditions of this Agreement and the\ntransactions contemplated hereby or to facilitate the enjoyment of any of the rights created hereby or to be created hereunder.\n(k) Gender. Whenever used herein the singular number shall include the plural, the plural shall include the singular, and the use of any gender\nshall include all genders.\n(l) Consultation with Counsel; No Representations. Optionee agrees and acknowledges that he has had a full and complete opportunity to\nconsult with counsel of his own choosing concerning the terms, enforceability and implications of this Agreement, and that ATC has made no\nrepresentations or warranties to him concerning the terms, enforceability or implications of this Agreement other than as are reflected in this\nAgreement.\nIN WITNESS WHEREOF, the parties hereto have executed this Noncompetition and Confidentiality Agreement, all pursuant to authority\nheretofore granted, as of the date and year first above written.\nAmerican Tower Corporation\nBy: /s/ James D. Taiclet\nName: James D. Taiclet\nTitle: President and CEO\n/s/ William H. Hess\nOptionee\nWilliam H. Hess\n7	EX-10.10 2 dex1010.htm NONCOMPETITION AND CONFIDENTIALITY AGREEMENT, WILLIAM H. HESS\nExhibit 10.10\nNONCOMPETITION AND CONFIDENTIALITY AGREEMENT\nThis Agreement (this “Agreement”) made as of January 1, 2004, by and between American Tower Corporation, a Delaware corporation\n(“ATC”), and William H. Hess (“Optionee”), an individual residing at\nWHEREAS, ATC, American Tower International, Inc., a Delaware corporation (“ATC International”), and ATC South America Holding Corp,\na Delaware corporation (“Holding”), are parties to a Stockholder/Optionee Agreement, dated as of January 1, 2004, and of which Optionee executed\na counterpart on January 1, 2004 (collectively, the “Stockholder Agreement”), pursuant to which Holding will issue to Optionee options to purchase\nshares of its Common Stock, par value $.01 per share; and\nWHEREAS, Optionee is an employee of ATC or one of its subsidiaries and will perform services for Holding;\nNOW, THEREFORE, in consideration of the consummation of the transactions contemplated by the Stockholder Agreement, the sum of One\nDollar ($1.00), the material covenants and agreements contained herein, and other good and valuable consideration, the receipt, adequacy and\nsufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, do covenant and agree as follows:\nSection 1. Definitions. Terms used in this Agreement which are not defined herein but which are defined in the Stockholder Agreement shall\nhave the respective meanings so defined.\nConfidential Information shall mean any and all information (excluding information in the public domain other than as a direct or indirect\nresult of any breach by Optionee of the provisions of this Agreement) related to the business, operations, management, assets, property, plans or\nprospects, condition, financial or other, or results of operation of ATC, any Affiliate of ATC or any of their respective successors or assigns,\nincluding without limitation:\n(a) the whole or any portion or phase of any business plans, financial information, purchasing data, supplier or customer data,\naccounting data, or computer programs (including source and object codes), tapes, discs, data, software or other information;\n(b)  the whole or any portion or phase of any marketing or sales information or technique, sales records, customer lists, supplier lists,\nprices, sales projections or other listings of names, addresses, or telephone numbers, or other sales information;\n(© the whole or any portion or phase of any employee payroll, fringe benefit, salary, bonus, commission or other form of\ncompensation information and all employee personnel information, including information relating to performance evaluations,\ndiscipline, employee conduct, complaints and other matters relating to employment of any Person; and\n(d)  Intellectual Property;\nwhether or not any of the foregoing has been made, developed and/or conceived by Optionee or by others in the employ of any such Person.\nNotwithstanding the foregoing, the term “Confidential Information”\nshall not include and information reasonably necessary for the conducting of any activity expressly excluded from the definition of “Proscribed\nActivity” hereunder.\nCovered Territory shall mean (a) while Optionee is employed by ATC or any of its Affiliates, North, South and Latin America, Europe and all\nother areas in which ATC or any of its Affiliates has invested or proposes to invest; and (b) thereafter, North America and any other markets where\nOptionee has been or is involved or is negotiating a proposed investment, acquisition or other transaction on behalf of ATC or any of its Affiliates.\nGood Reason shall mean:\n(a) the assignment to Optionee of any duties inconsistent in any material respect with his current position, authority, duties or\nresponsibilities or any other action by ATC or Holding or any of their Affiliates that results in a diminution, in any material respect, in\nsuch position, authority, duties or responsibilities; or\n(b) a material reduction in Optionee’s compensation or other benefits (taking into account the compensation and other benefits from ATC or\nHolding and their Affiliates from whom he may, from time to time, receive compensation), the result of which is to place Optionee in a\nmaterially less favorable position as to such compensation and benefits compared to other employees of ATC or Holding and their\nAffiliates of similar stature and position; or\n(c) any other failure by ATC or Holding or any of their Affiliates to comply in any material respect with any material provision of the\nStockholder Agreement;\nthat (i) is incapable of cure, or (ii) has not been cured or remedied promptly (and in any event within thirty (30) days) after written notice to the\nboard of directors of ATC from Optionee specifying in reasonable detail the nature of such assignment, action, reduction or failure.\nImmediate Family shall mean spouses, children and parents, whether related by blood, adoption or marriage.\nIntellectual Property shall mean, with respect to Optionee, any and all research, information, inventions, designs, procedures, developments,\ndiscoveries, improvements, patents and applications therefor, trademarks and applications therefor, service marks, trade names, copyrights and\napplications therefor, trade secrets, drawing, plans, systems, methods, specifications, computer software programs, tapes, discs and related data\nprocessing software (including object and source codes) owned by Optionee or in which he has an interest and all other manufacturing, engineering,\ntechnical, research and development data and know-how made, conceived, developed and/or acquired by Optionee solely or jointly with others\nduring the period of his employment with ATC or any of its Affiliates or within one year thereafter, which relate to the manufacture, production or\nprocessing of any products developed or sold by ATC or any of its Affiliates during the term of this Agreement or which are within the scope of or\nusable in connection with ATC’s or any of its Affiliates’ business as it may, from time to time, hereafter be conducted or proposed to be conducted.\nOptionee Forfeiture Event shall mean any of the following acts (other than as a result of the death or Disability of Optionee) committed by\nOptionee:\n(a) any willful or gross failure or refusal to perform, or any willful or gross misconduct in the performance of, any significant portion of\nhis obligations, duties and responsibilities as an\nemployee of Holding, the effect of which has been or reasonably could be expected to materially and adversely affect the business of ATC or\nany of its Affiliates, as determined in good faith by the ATC Board of Directors, and that (i) is incapable of cure, or (ii) has not been cured or\nremedied as promptly as is reasonably possible (and in any event within thirty (30) days) after written notice from the Holding Board to\nOptionee specifying in reasonable detail the nature of such failure, refusal or misconduct, or\n(b) material breach of the provisions of Section 2, 3 or 4 of this Agreement which (i) is incapable of cure, or (ii) has not been cured or\nremedied promptly (and in any event within thirty (30) days) after written notice from the Holding Board to Optionee specifying in reasonable\ndetail the nature of such breach, or\n(c) Optionee is convicted of, pleads guilty or nolo contendero to any act of fraud, embezzlement or misappropriation or other crime\ninvolving moral turpitude in connection with his employment by Holding or any of its Affiliates intended by Optionee to result in substantial\npersonal enrichment and which adversely affects the business of ATC or any of its Affiliates, all as determined in good faith by the ATC Board\nof Directors.\nProscribed Activity shall mean any and all activities related to (a) the construction, ownership, operation, leasing or management of\ntelecommunications or broadcast towers, (b) providing network development services or components for wireless service providers or broadcasters,\n(c) providing high speed Internet access and related services via satellite to foreign-based Internet service providers, telephone or other\ntelecommunciations companies, and other businesses, or (d) providing other satellite and Internet protocol network transmission services.\nRestricted Period shall mean a period commencing with the date hereof and terminating the latest of (a) one year after exercise of the put (or\ncall) provided for in Section 6 of the Stockholder Agreement, (b) two years after the sooner to occur of (i) an Optionee Forfeiture Event, or (ii) the\nresignation by Optionee from all positions with ATC and each of its subsidiaries other than for Good Reason, or (c) one year after the resignation by\nOptionee from all positions with ATC and each of its subsidiaries for the reason set forth in paragraph (d) of the definition of Good Reason.\nSection 2. Confidentiality. Optionee shall not, either during the Restricted Period or thereafter, reveal or disclose to any person outside ATC\nand its subsidiaries or use for his own benefit, without ATC’s specific prior written authorization, whether by private communication or by public\naddress or publication or otherwise, any Confidential Information. All originals and copies of any Confidential Information, relating to the business\nof ATC or any of its subsidiaries, however and whenever produced, shall be the sole property of ATC and its subsidiaries, not to be removed from\nthe premises or custody of ATC or its subsidiaries without in each instance first obtaining prior written consent or authorization of ATC.\nSection 3. Disclosure and Assignment of Intellectual Property. Optionee shall promptly disclose to ATC and any successor or assign, and grant\nto ATC, and its successors and assigns (without any separate remuneration or compensation other than that received by him from time to time in the\ncourse of his employment) his entire right, title and interest throughout the world in and to all Intellectual Property. It is understood and agreed that\nOptionee has heretofore disclosed to ATC, and assigned to it, all Intellectual Property now known to him over which he has any control. Optionee\nagrees to execute all appropriate patent applications securing all United States and foreign patents on all Intellectual Property, and to do, execute and\ndeliver any and all acts and instruments that may be necessary or proper to vest all Intellectual Property in ATC or its nominee or designee and to\nenable ATC, or its nominee or designee, to obtain all such patents; and Optionee agrees to render to ATC, or its nominee or designee, all such\n3\nreasonable assistance as it may require in the prosecution of all such patent applications and applications for the reissue of such patents, and in the\nprosecution or defense of all interferences which may be declared involving any of said patent applications or patents, but the expense of all such\nassignments and patent applications, or all other proceedings referred to herein above, shall be borne by ATC. Optionee shall be entitled to fair and\nreasonable compensation for any such assistance requested by ATC or its nominee or designee and furnished by him after the termination of his\nemployment.\nSection 4. Restriction. ATC through its subsidiaries intends to continue and expand the business heretofore conducted by it and them and it and\nin connection therewith ATC and its subsidiaries have invested and may in the future be required to invest substantial sums of money, directly or\nindirectly, and as Optionee recognizes that ATC would be substantially injured by Optionee disclosing to others, or by Optionee using for his own\nbenefit, any Intellectual Property or any other Confidential Information he has obtained or shall obtain from ATC or any of its subsidiaries, or which\nhe may now possess and which he has made available to ATC or any of its subsidiaries, Optionee agrees that during the Restricted Period:\n(a) Neither he nor any member of his Immediate Family will be interested, directly or indirectly, as an investor in any other Entity, business\nor enterprise within the Covered Territory, which is engaged in any Proscribed Activity (except as an investor in securities (i) issued by\nATC or any of its subsidiaries or (ii) listed on a national securities exchange or actively traded over the counter so long as such\ninvestments are in amounts not significant as compared to his total investments and do not exceed one percent (1%) of the outstanding\nsecurities of the issuer of the same class or issue); and\n(b) Other than in connection with his serving as an employee of ATC and its subsidiaries, he will not, directly or indirectly, for his own\naccount or as employee, officer, director, partner, trustee, principal, member, joint venturer, agent, adviser, consultant or otherwise,\nengage within the Covered Territory, in any phase of any Proscribed Activity.\nOptionee further agrees that during the Restricted Period, he will not, directly or indirectly, solicit business for a Proscribed Activity from any\nPerson, business or enterprise which is, or proposes to be, a customer of ATC or any of its subsidiaries or any of their respective successors or\nassigns, or from any Person, business or enterprise with which ATC or any of its subsidiaries or any of their respective successors or assigns is\nnegotiating or holding discussion or to which it has made a proposal at the time of such termination, induce any such Person, business or enterprise\nnot to undertake, or to curtail or cancel business with ATC or any of its subsidiaries or any of their respective successors or assigns, induce or\nattempt to induce any employee of ATC or any of its subsidiaries or any of their respective successors or assigns to terminate his employment\ntherewith, or intentionally divulge or utilize for the direct or indirect benefit (financial or other) of himself or any other Person, business or\nenterprise, any Intellectual Property or any Confidential Information he has obtained as an employee and/or stockholder of ATC or any of its\nsubsidiaries.\nThis Agreement shall be deemed to consist of a series of separate covenants, one for each line of business carried on by ATC and its\nsubsidiaries and each region included within the geographic areas referred to in this Section. Optionee and ATC are of the belief that the Restricted\nPeriod, the Proscribed Activity and the Covered Territory herein specified are reasonable, in light of the circumstances as they exist on the date upon\nwhich this Agreement has been executed, including without limitation the nature of the business in which ATC and its subsidiaries are engaged and\nproposes to engage, the state of their product development and Optionee’s knowledge of such business and his prior affiliations with and interest in\nATC. However, if such period, activity or area should be adjudged unreasonable in any Legal Action, whether at law or in equity, then the Restricted\nPeriod shall be reduced by such period of time, the\nProscribed Activity shall be reduced by such activities, or the Covered Territory shall be reduced by such area, or any combination thereof, as are\ndeemed unreasonable, so that this covenant may be enforced in such area, with respect to such activities and during such period of time as is\nadjudged to be reasonable.\nSection 5. Security for Optionee Obligations. Optionee’s obligations under this Agreement shall be secured by twenty percent (20%) of the\ngross sale proceeds (before deduction of commissions, discounts, brokerage fees or other fees and expenses) of (a) all shares of capital stock and\nother securities issued by Holding to Optionee, and (b) all shares of capital stock and other securities issued by Holding received by Optionee\npursuant to any distribution to him or otherwise acquired by him. Optionee and ATC agree that all such proceeds shall be held by an escrow agent or\nagents reasonably acceptable to Optionee and ATC and subject to the terms and conditions of an escrow agreement to be executed by ATC and\nOptionee and reasonably satisfactory to ATC and Optionee.\nSection 6. Miscellaneous Provisions.\n(a) Assignment; Successors and Assigns. In the event that ATC shall be merged with, or consolidated into, any other Entity, or in the event that\nit shall sell and transfer substantially all of its assets to another Entity, the terms of this Agreement shall inure to the benefit of, and be assumed by,\nthe Entity resulting from such merger or consolidation, or to which ATC’s assets shall be sold and transferred. This Agreement shall not be\nassignable by Optionee, but it shall be binding upon his heirs, executors, administrators and legal representatives to the extent they constitute\nmembers of his Immediate Family. Nothing in this Agreement expressed or implied is intended to and shall not be construed to confer upon or create\nin any person (other than the parties hereto and their permitted successors and assigns) any rights or remedies under or by reason of this Agreement.\n(b) Specific Performance; Other Rights and Remedies. Optionee recognizes and agrees that ATC’s remedy at law for any breach of the\nprovisions of this Agreement, including without limitation Sections 2, 3, or 4, would be inadequate, and he agrees that for breach of such provisions,\nATC shall, in addition to such other remedies as may be available to it at law or in equity or as provided in this Agreement, be entitled to injunctive\nrelief and to enforce its rights by an action for specific performance to the extent permitted by applicable law. Without limiting the generality of the\nforegoing, in the event of a breach or threatened breach by Optionee of the provisions of this Agreement, ATC shall be entitled to an injunction\nrestraining Optionee from soliciting employees, customers or suppliers, or from disclosing, in whole or in part, any Confidential Information, or\nfrom rendering any services to any Person to whom such information has been disclosed, or is threatened to be disclosed, from engaging,\nparticipating or otherwise being connected with any business described in Section 4 or from otherwise violating the terms of this Agreement.\nNothing herein contained shall be construed as prohibiting each party from pursuing any other remedies available to it pursuant to the provisions of,\nand subject to the limitations contained in, this Agreement for such breach or threatened breach; provided, however, that none of the parties shall\npursue, and each party hereby waives, any punitive, indirect, special, incidental, exemplary, consequential or similar damages arising out of this\nAgreement (including without limitation damages for diminution in value and loss of anticipated profits) and the multiplied portion of damages.\n(c) Entire Agreement. This Agreement constitutes the entire agreement between ATC and Optionee with respect to the subject matter hereof,\nand supersedes all prior agreements, arrangements, covenants, promises, conditions, understandings, inducements, representations and negotiations,\nexpressed or implied, oral or written, among them as to such subject matter.\n(d) Waivers; Amendments. Any provision of this Agreement to the contrary notwithstanding, changes in or additions to this Agreement may be\nmade, or compliance with any term, covenant, agreement, condition or provision set forth herein may be omitted or waived (either generally or in a\n5\nparticular instance and either retroactively or prospectively) with, but only with, the consent in writing of the parties hereto. Any consent may be\ngiven subject to satisfaction of conditions stated therein. The failure to insist upon the strict provisions of any covenant, term, condition or other\nprovision of this Agreement or to exercise any right or remedy thereunder shall not constitute a waiver of any such covenant, term, condition or other\nprovision thereof or default in connection therewith. The waiver of any covenant, term, condition or other provision thereof or default thereunder\nshall not affect or alter this Agreement in any other respect, and each and every covenant, term, condition or other provision of this Agreement shall,\nin such event, continue in full force and effect, except as so waived, and shall be operative with respect to any other then existing or subsequent\ndefault in connection therewith.\n(e) Notices. All notices and other communications which by any provision of this Agreement are required or permitted to be given shall be\ngiven in writing and shall be effective (i) five (5) days after being mailed by first-class, express mail, postage prepaid, (ii) the next day when sent by\novernight by recognized mail courier service, (iii) upon confirmation when sent by telex, telegram, telecopy or other similar form of rapid\ntransmission, confirmed by mailing (by first class or express mail, postage prepaid, or recognized overnight mail courier service) written\nconfirmation at substantially the same time as such rapid transmission, (iv) upon delivery personally delivered to an officer of the receiving party, or\n(v) upon delivery personally delivered to the Optionee. All such communications shall be mailed, set or delivered as set forth below or at such other\naddresses as the party entitled thereto shall have designated by notice as herein provided.\n(i) if to Holding or ATC, at 116 Huntington Avenue, Boston, Massachusetts 02116 Attention: Chief Executive Officer and Chief\nFinancial Officer, Telecopier No.: (617) 375-7575 with a copy (which shall not constitute notice to ATC or Holding) to Sullivan & Worcester\nLLP, One Post Office Square, Boston, Massachusetts 02109, Attention: William J. Curry, Esq., Telecopier No.: (617) 338-2880) and\n(ii) if to Optionee, at , Telecopier No.\n(f) Severability. If any provision of this Agreement shall be held or deemed to be, or shall in fact be, invalid, inoperative, illegal or\nunenforceable as applied to any particular case in any jurisdiction or jurisdictions, or in all jurisdictions or in all cases, because of the conflicting of\nany provision with any constitution or statute or rule of public policy or for any other reason, such circumstance shall not have the effect of rendering\nthe provision or provisions in question invalid, inoperative, illegal or unenforceable in any other jurisdiction or in any other case or circumstance or\nof rendering any other provision or provisions herein contained invalid, inoperative, illegal or unenforceable to the extent that such other provisions\nare not themselves actually in conflict with such constitution, statute or rule of public policy, but this Agreement shall be reformed and construed in\nany such jurisdiction or case as if such invalid, inoperative, illegal or unenforceable provision had never been contained herein and such provision\nreformed so that it would be valid, operative and enforceable to the maximum extent permitted in such jurisdiction or in such case, except when such\nreformation and construction could operate as an undue hardship on either party, or constitute a substantial deviation from the general intent and\npurpose of such party as reflected in this Agreement. The parties shall endeavor in good faith negotiations to replace the invalid, inoperative, illegal\nor unenforceable provisions with valid, operative, legal and enforceable provisions the economic effect of which comes as close as possible to that of\nthe invalid, inoperative, illegal or unenforceable provisions.\n(g) Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which\ntogether shall constitute one and the same instrument,\nbinding upon all the parties hereto. In pleading or proving any provision of this Agreement, it shall not be necessary to produce more than one of\nsuch counterparts.\n(h) Section Headings. The headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or\ninterpretation of this Agreement.\n(i) Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the applicable laws of\nthe United States of America and the domestic substantive laws of the State of Georgia without giving effect to any choice or conflict of laws\nprovision or rule that would cause the application of domestic substantive laws of any other jurisdiction. Anything in this Agreement to the contrary\nnotwithstanding, in the event of any dispute between the parties which results in a Legal Action, the prevailing party shall be entitled to receive from\nthe non-prevailing party reimbursement for reasonable legal fees and expenses incurred by such prevailing party in such Legal Action.\n(j) Further Acts. Each party agrees that at any time, and from time to time, before and after the consummation of the transactions contemplated\nby this Agreement, it will do all such things and execute and deliver all such agreements, assignments, instruments, other documents and assurances,\nas any other party or its counsel reasonably deems necessary or desirable in order to carry out the terms and conditions of this Agreement and the\ntransactions contemplated hereby or to facilitate the enjoyment of any of the rights created hereby or to be created hereunder.\n(k) Gender. Whenever used herein the singular number shall include the plural, the plural shall include the singular, and the use of any gender\nshall include all genders.\n \n(1) Consultation with Counsel; No Representations. Optionee agrees and acknowledges that he has had a full and complete opportunity to\nconsult with counsel of his own choosing concerning the terms, enforceability and implications of this Agreement, and that ATC has made no\nrepresentations or warranties to him concerning the terms, enforceability or implications of this Agreement other than as are reflected in this\nAgreement.\nIN WITNESS WHEREOF, the parties hereto have executed this Noncompetition and Confidentiality Agreement, all pursuant to authority\nheretofore granted, as of the date and year first above written.\nAmerican Tower Corporation\nBy: /s/ _James D. Taiclet\nName: James D. Taiclet\nTitle: President and CEO\n/s/_William H. Hess\nOptionee\nWilliam H. Hess	EX-10.10 2 lex1010.htm NONCOMPETITION AND CONFIDENTIALITY AGREEMENT, WILLIAM H. HESS\nExhibit 10.10\nNONCOMPETITION AND CONFIDENTIALITY AGREEMENT\nThis Agreement (this "Agreement") made as of January 1, 2004, by and between American Tower Corporation, a Delaware corporation\n("ATC"), and William H. Hess ("Optionee"), an individual residing at\nWHEREAS, ATC, American Tower International, Inc., a Delaware corporation ("ATC International"), and ATC South America Holding Corp,\na Delaware corporation ("Holding"), are parties to a Stockholder/Optionee Agreement, dated as of January 1, 2004, and of which Optionee executed\na counterpart on January 1, 2004 (collectively, the "Stockholder Agreement"), pursuant to which Holding will issue to Optionee options to purchase\nshares of its Common Stock, par value $.01 per share; and\nWHEREAS, Optionee is an employee of ATC or one of its subsidiaries and will perform services for Holding;\nNOW, THEREFORE, in consideration of the consummation of the transactions contemplated by the Stockholder Agreement, the sum of One\nDollar ($1.00), the material covenants and agreements contained herein, and other good and valuable consideration, the receipt, adequacy and\nsufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, do covenant and agree as follows:\nSection 1. Definitions. Terms used in this Agreement which are not defined herein but which are defined in the Stockholder Agreement shall\nhave the respective meanings so defined.\nConfidential Information shall mean any and all information (excluding information in the public domain other than as a direct or indirect\nresult of any breach by Optionee of the provisions of this Agreement) related to the business, operations, management, assets, property, plans or\nprospects, condition, financial or other, or results of operation of ATC, any Affiliate of ATC or any of their respective successors or assigns,\nincluding without limitation:\n(a)\nthe whole or any portion or phase of any business plans, financial information, purchasing data, supplier or customer data,\naccounting data, or computer programs (including source and object codes), tapes, discs, data, software or other information;\n(b)\nthe whole or any portion or phase of any marketing or sales information or technique, sales records, customer lists, supplier lists,\nprices, sales projections or other listings of names, addresses, or telephone numbers, or other sales information;\n(c)\nthe whole or any portion or phase of any employee payroll, fringe benefit, salary, bonus, commission or other form of\ncompensation information and all employee personnel information, including information relating to performance evaluations,\ndiscipline, employee conduct, complaints and other matters relating to employment of any Person; and\n(d)\nIntellectual Property;\nwhether or not any of the foregoing has been made, developed and/or conceived by Optionee or by others in the employ of any such Person.\nNotwithstanding the foregoing, the term "Confidential Information"\nshall not include and information reasonably necessary for the conducting of any activity expressly excluded from the definition of "Proscribed\nActivity" hereunder.\nCovered Territory. shall mean (a) while Optionee is employed by ATC or any of its Affiliates, North, South and Latin America, Europe and all\nother areas in which ATC or any of its Affiliates has invested or proposes to invest; and (b) thereafter, North America and any other markets where\nOptionee has been or is involved or is negotiating a proposed investment, acquisition or other transaction on behalf of ATC or any of its Affiliates.\nGood Reason shall mean:\n(a) the assignment to Optionee of any duties inconsistent in any material respect with his current position, authority, duties or\nresponsibilities or any other action by ATC or Holding or any of their Affiliates that results in a diminution, in any material respect, in\nsuch position, authority, duties or responsibilities; or\n(b) a material reduction in Optionee's compensation or other benefits (taking into account the compensation and other benefits from ATC or\nHolding and their Affiliates from whom he may, from time to time, receive compensation), the result of which is to place Optionee in\na\nmaterially less favorable position as to such compensation and benefits compared to other employees of ATC or Holding and their\nAffiliates of similar stature and position; or\n(c)\nany other failure by ATC or Holding or any of their Affiliates to comply in any material respect with any material provision of the\nStockholder Agreement;\nthat (i) is incapable of cure, or (ii) has not been cured or remedied promptly (and in any event within thirty (30) days) after written notice to the\nboard of directors of ATC from Optionee specifying in reasonable detail the nature of such assignment, action, reduction or failure.\nImmediate Family. shall mean spouses, children and parents, whether related by blood, adoption or marriage.\nIntellectual Property. shall mean, with respect to Optionee, any and all research, information, inventions, designs, procedures, developments,\ndiscoveries, improvements, patents and applications therefor, trademarks and applications therefor, service marks, trade names, copyrights and\napplications therefor, trade secrets, drawing, plans, systems, methods, specifications, computer software programs, tapes, discs and related data\nprocessing software (including object and source codes) owned by Optionee or in which he has an interest and all other manufacturing, engineering,\ntechnical, research and development data and know-how made, conceived, developed and/or acquired by Optionee solely or jointly with others\nduring the period of his employment with ATC or any of its Affiliates or within one year thereafter, which relate to the manufacture, production\nor\nprocessing of any products developed or sold by ATC or any of its Affiliates during the term of this Agreement or which are within the scope of or\nusable in connection with ATC's or any of its Affiliates' business as it may, from time to time, hereafter be conducted or proposed to be conducted.\nOptionee Forfeiture Event shall mean any of the following acts (other than as a result of the death or Disability of Optionee) committed\nby\nOptionee:\n(a) any willful or gross failure or refusal to perform, or any willful or gross misconduct in the performance of, any significant portion of\nhis obligations, duties and responsibilities as an\n2\nemployee of Holding, the effect of which has been or reasonably could be expected to materially and adversely affect the business of ATC or\nany of its Affiliates, as determined in good faith by the ATC Board of Directors, and that (i) is incapable of cure, or (ii) has not been cured or\nremedied as promptly as is reasonably possible (and in any event within thirty (30) days) after written notice from the Holding Board to\nOptionee specifying in reasonable detail the nature of such failure, refusal or misconduct, or\n(b) material breach of the provisions of Section 2, 3 or 4 of this Agreement which (i) is incapable of cure, or (ii) has not been cured\nor\nremedied promptly (and in any event within thirty (30) days) after written notice from the Holding Board to Optionee specifying in reasonable\ndetail the nature of such breach, or\n(c) Optionee is convicted of, pleads guilty or nolo contendero to any act of fraud, embezzlement or misappropriation or other crime\ninvolving moral turpitude in connection with his employment by Holding or any of its Affiliates intended by Optionee to result in substantial\npersonal enrichment and which adversely affects the business of ATC or any of its Affiliates, all as determined in good faith by the ATC Board\nof Directors.\nProscribed Activity. shall mean any and all activities related to (a) the construction, ownership, operation, leasing or management of\ntelecommunications or broadcast towers, (b) providing network development services or components for wireless service providers or broadcasters,\n(c) providing high speed Internet access and related services via satellite to foreign-based Internet service providers, telephone or other\ntelecommunciations companies, and other businesses, or (d) providing other satellite and Internet protocol network transmission services.\nRestricted Period shall mean a period commencing with the date hereof and terminating the latest of (a) one year after exercise of the put (or\ncall) provided for in Section 6 of the Stockholder Agreement, (b) two years after the sooner to occur of (i) an Optionee Forfeiture Event, or (ii) the\nresignation by Optionee from all positions with ATC and each of its subsidiaries other than for Good Reason, or (c) one year after the resignation\nby\nOptionee from all positions with ATC and each of its subsidiaries for the reason set forth in paragraph (d) of the definition of Good Reason.\nSection 2. Confidentiality.. Optionee shall not, either during the Restricted Period or thereafter, reveal or disclose to any person outside ATC\nand its subsidiaries or use for his own benefit, without ATC's specific prior written authorization, whether by private communication or by public\naddress or publication or otherwise, any Confidential Information. All originals and copies of any Confidential Information relating to the business\nof ATC or any of its subsidiaries, however and whenever produced, shall be the sole property of ATC and its subsidiaries, not to be removed from\nthe premises or custody of ATC or its subsidiaries without in each instance first obtaining prior written consent or authorization of ATC.\nSection 3. Disclosure and Assignment of Intellectual Property. Optionee shall promptly disclose to ATC and any successor or assign, and grant\nto ATC, and its successors and assigns (without any separate remuneration or compensation other than that received by him from time to time in the\ncourse of his employment) his entire right, title and interest throughout the world in and to all Intellectual Property. It is understood and agreed that\nOptionee has heretofore disclosed to ATC, and assigned to it, all Intellectual Property now known to him over which he has any control. Optionee\nagrees to execute all appropriate patent applications securing all United States and foreign patents on all Intellectual Property, and to do, execute and\ndeliver any and all acts and instruments that may be necessary or proper to vest all Intellectual Property in ATC or its nominee or designee and\nto\nenable ATC, or its nominee or designee, to obtain all such patents; and Optionee agrees to render to ATC, or its nominee or designee, all such\n3\nreasonable assistance as it may require in the prosecution of all such patent applications and applications for the reissue of such patents, and in the\nprosecution or defense of all interferences which may be declared involving any of said patent applications or patents, but the expense of all such\nassignments and patent applications, or all other proceedings referred to herein above, shall be borne by ATC. Optionee shall be entitled to fair and\nreasonable compensation for any such assistance requested by ATC or its nominee or designee and furnished by him after the termination of his\nemployment.\nSection 4. Restriction. ATC through its subsidiaries intends to continue and expand the business heretofore conducted by it and them and it and\nin connection therewith ATC and its subsidiaries have invested and may in the future be required to invest substantial sums of money, directly\nor\nindirectly, and as Optionee recognizes that ATC would be substantially injured by Optionee disclosing to others, or by Optionee using for his own\nbenefit, any Intellectual Property or any other Confidential Information he has obtained or shall obtain from ATC or any of its subsidiaries, or which\nhe may now possess and which he has made available to ATC or any of its subsidiaries, Optionee agrees that during the Restricted Period:\n(a)\nNeither he nor any member of his Immediate Family will be interested, directly or indirectly, as an investor in any other Entity, business\nor enterprise within the Covered Territory, which is engaged in any Proscribed Activity (except as an investor in securities (i) issued by\nATC or any of its subsidiaries or (ii) listed on a national securities exchange or actively traded over the counter so long as such\ninvestments are in amounts not significant as compared to his total investments and do not exceed one percent (1%) of the outstanding\nsecurities of the issuer of the same class or issue); and\n(b)\nOther than in connection with his serving as an employee of ATC and its subsidiaries, he will not, directly or indirectly, for his own\naccount or as employee, officer, director, partner, trustee, principal, member, joint venturer, agent, adviser, consultant or otherwise,\nengage within the Covered Territory, in any phase of any Proscribed Activity.\nOptionee further agrees that during the Restricted Period, he will not, directly or indirectly, solicit business for a Proscribed Activity from any\nPerson, business or enterprise which is, or proposes to be, a customer of ATC or any of its subsidiaries or any of their respective successors or\nassigns, or from any Person, business or enterprise with which ATC or any of its subsidiaries or any of their respective successors or assigns is\nnegotiating or holding discussion or to which it has made a proposal at the time of such termination, induce any such Person, business or enterprise\nnot to undertake, or to curtail or cancel business with ATC or any of its subsidiaries or any of their respective successors or assigns, induce or\nattempt to induce any employee of ATC or any of its subsidiaries or any of their respective successors or assigns to terminate his employment\ntherewith, or intentionally divulge or utilize for the direct or indirect benefit (financial or other) of himself or any other Person, business or\nenterprise, any Intellectual Property or any Confidential Information he has obtained as an employee and/or stockholder of ATC or any of its\nsubsidiaries.\nThis Agreement shall be deemed to consist of a series of separate covenants, one for each line of business carried on by ATC and its\nsubsidiaries and each region included within the geographic areas referred to in this Section. Optionee and ATC are of the belief that the Restricted\nPeriod, the Proscribed Activity and the Covered Territory herein specified are reasonable, in light of the circumstances as they exist on the date upon\nwhich this Agreement has been executed, including without limitation the nature of the business in which ATC and its subsidiaries are engaged and\nproposes to engage, the state of their product development and Optionee's knowledge of such business and his prior affiliations with and interest\nin\nATC. However, if such period, activity or area should be adjudged unreasonable in any Legal Action, whether at law or in equity, then the Restricted\nPeriod shall be reduced by such period of time, the\n4\nProscribed Activity shall be reduced by such activities, or the Covered Territory shall be reduced by such area, or any combination thereof, as are\ndeemed unreasonable, so that this covenant may be enforced in such area, with respect to such activities and during such period of time as is\nadjudged to be reasonable.\nSection 5. Security. for Optionee Obligations. Optionee's obligations under this Agreement shall be secured by twenty percent (20%) of the\ngross sale proceeds (before deduction of commissions, discounts, brokerage fees or other fees and expenses) of (a) all shares of capital stock and\nother securities issued by Holding to Optionee, and (b) all shares of capital stock and other securities issued by Holding received by Optionee\npursuant to any distribution to him or otherwise acquired by him. Optionee and ATC agree that all such proceeds shall be held by an escrow agent or\nagents reasonably acceptable to Optionee and ATC and subject to the terms and conditions of an escrow agreement to be executed by ATC and\nOptionee and reasonably satisfactory to ATC and Optionee.\nSection 6. Miscellaneous Provisions.\n(a) Assignment; Successors and Assigns. In the event that ATC shall be merged with, or consolidated into, any other Entity, or in the event that\nit shall sell and transfer substantially all of its assets to another Entity, the terms of this Agreement shall inure to the benefit of, and be assumed by,\nthe Entity resulting from such merger or consolidation, or to which ATC's assets shall be sold and transferred. This Agreement shall not be\nassignable by Optionee, but it shall be binding upon his heirs, executors, administrators and legal representatives to the extent they constitute\nmembers of his Immediate Family. Nothing in this Agreement expressed or implied is intended to and shall not be construed to confer upon or create\nin any person (other than the parties hereto and their permitted successors and assigns) any rights or remedies under or by reason of this Agreement.\n(b) Specific Performance; Other Rights and Remedies. Optionee recognizes and agrees that ATC's remedy at law for any breach of the\nprovisions of this Agreement, including without limitation Sections 2, 3, or 4, would be inadequate, and he agrees that for breach of such provisions,\nATC shall, in addition to such other remedies as may be available to it at law or in equity or as provided in this Agreement, be entitled to injunctive\nrelief\nand\nto\nenforce\nits\nrights\nby\nan\naction\nfor\nspecific\nperformance\nto\nthe\nextent\npermitted\nby\napplicable\nlaw.\nWithout\nlimiting\nthe\ngenerality\nof\nthe\nforegoing, in the event of a breach or threatened breach by Optionee of the provisions of this Agreement, ATC shall be entitled to an injunction\nrestraining Optionee from soliciting employees, customers or suppliers, or from disclosing, in whole or in part, any Confidential Information,\nor\nfrom rendering any services to any Person to whom such information has been disclosed, or is threatened to be disclosed, from engaging,\nparticipating or otherwise being connected with any business described in Section 4 or from otherwise violating the terms of this Agreement.\nNothing herein contained shall be construed as prohibiting each party from pursuing any other remedies available to it pursuant to the provisions of,\nand subject to the limitations contained in, this Agreement for such breach or threatened breach; provided, however, that none of the parties shall\npursue, and each party hereby waives, any punitive, indirect, special, incidental, exemplary, consequential or similar damages arising out of this\nAgreement (including without limitation damages for diminution in value and loss of anticipated profits) and the multiplied portion of damages.\n(c) Entire Agreement. This Agreement constitutes the entire agreement between ATC and Optionee with respect to the subject matter hereof,\nand supersedes all prior agreements, arrangements, covenants, promises, conditions, understandings, inducements, representations and negotiations,\nexpressed or implied, oral or written, among them as to such subject matter.\n(d) Waivers; Amendments. Any provision of this Agreement to the contrary notwithstanding, changes in or additions to this Agreement may be\nmade, or compliance with any term, covenant, agreement, condition or provision set forth herein may be omitted or waived (either generally or in a\n5\nparticular instance and either retroactively or prospectively) with, but only with, the consent in writing of the parties hereto. Any consent may be\ngiven subject to satisfaction of conditions stated therein. The failure to insist upon the strict provisions of any covenant, term, condition or other\nprovision of this Agreement or to exercise any right or remedy thereunder shall not constitute a waiver of any such covenant, term, condition or other\nprovision thereof or default in connection therewith. The waiver of any covenant, term, condition or other provision thereof or default thereunder\nshall not affect or alter this Agreement in any other respect, and each and every covenant, term, condition or other provision of this Agreement shall,\nin such event, continue in full force and effect, except as so waived, and shall be operative with respect to any other then existing or subsequent\ndefault in connection therewith.\n(e) Notices. All notices and other communications which by any provision of this Agreement are required or permitted to be given shall be\ngiven in writing and shall be effective (i) five (5) days after being mailed by first-class, express mail, postage prepaid, (ii) the next day when sent by\novernight by recognized mail courier service, (iii) upon confirmation when sent by telex, telegram, telecopy or other similar form of rapid\ntransmission, confirmed by mailing (by first class or express mail, postage prepaid, or recognized overnight mail courier service) written\nconfirmation at substantially the same time as such rapid transmission, (iv) upon delivery personally delivered to an officer of the receiving party, or\n(v) upon delivery personally delivered to the Optionee. All such communications shall be mailed, set or delivered as set forth below or at such other\naddresses as the party entitled thereto shall have designated by notice as herein provided.\n(i) if to Holding or ATC, at 116 Huntington Avenue, Boston, Massachusetts 02116 Attention: Chief Executive Officer and Chief\nFinancial Officer, Telecopier No.: (617) 375-7575 with a copy (which shall not constitute notice to ATC or Holding) to Sullivan & Worcester\nLLP, One Post Office Square, Boston, Massachusetts 02109, Attention: William J. Curry, Esq., Telecopier No.: (617) 338-2880) and\n(ii) if to Optionee, at\nTelecopier No.\n(f) Severability.. If any provision of this Agreement shall be held or deemed to be, or shall in fact be, invalid, inoperative, illegal or\nunenforceable as applied to any particular case in any jurisdiction or jurisdictions, or in all jurisdictions or in all cases, because of the conflicting of\nany provision with any constitution or statute or rule of public policy or for any other reason, such circumstance shall not have the effect of rendering\nthe provision or provisions in question invalid, inoperative, illegal or unenforceable in any other jurisdiction or in any other case or circumstance or\nof\nrendering any other provision or provisions herein contained invalid, inoperative, illegal or unenforceable to the extent that such other provisions\nare not themselves actually in conflict with such constitution, statute or rule of public policy, but this Agreement shall be reformed and construed in\nany such jurisdiction or case as if such invalid, inoperative, illegal or unenforceable provision had never been contained herein and such provision\nreformed so that it would be valid, operative and enforceable to the maximum extent permitted in such jurisdiction or in such case, except when such\nreformation and construction could operate as an undue hardship on either party, or constitute a substantial deviation from the general intent and\npurpose of such party as reflected in this Agreement. The parties shall endeavor in good faith negotiations to replace the invalid, inoperative, illegal\nor unenforceable provisions with valid, operative, legal and enforceable provisions the economic effect of which comes as close as possible to that of\nthe invalid, inoperative, illegal or unenforceable provisions.\n(g) Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which\ntogether shall constitute one and the same instrument,\n6\nbinding upon all the parties hereto. In pleading or proving any provision of this Agreement, it shall not be necessary to produce more than one of\nsuch counterparts.\n(h) Section Headings. The headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or\ninterpretation of this Agreement.\n(i) Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the applicable laws of\nthe United States of America and the domestic substantive laws of the State of Georgia without giving effect to any choice or conflict of laws\nprovision or rule that would cause the application of domestic substantive laws of any other jurisdiction. Anything in this Agreement to the contrary\nnotwithstanding, in the event of any dispute between the parties which results in a Legal Action, the prevailing party shall be entitled to receive from\nthe non-prevailing party reimbursement for reasonable legal fees and expenses incurred by such prevailing party in such Legal Action.\n(j) Further Acts. Each party agrees that at any time, and from time to time, before and after the consummation of the transactions contemplated\nby this Agreement, it will do all such things and execute and deliver all such agreements, assignments, instruments, other documents and assurances,\nas any other party or its counsel reasonably deems necessary or desirable in order to carry out the terms and conditions of this Agreement and the\ntransactions contemplated hereby or to facilitate the enjoyment of any of the rights created hereby or to be created hereunder.\n(k) Gender. Whenever used herein the singular number shall include the plural, the plural shall include the singular, and the use of any gender\nshall include all genders.\n(1)\nConsultation with Counsel; No Representations. Optionee agrees and acknowledges that he has had a full and complete opportunity to\nconsult with counsel of his own choosing concerning the terms, enforceability and implications of this Agreement, and that ATC has made no\nrepresentations or warranties to him concerning the terms, enforceability or implications of this Agreement other than as are reflected in this\nAgreement.\nIN WITNESS WHEREOF, the parties hereto have executed this Noncompetition and Confidentiality Agreement, all pursuant to authority\nheretofore granted, as of the date and year first above written.\nAmerican Tower Corporation\nBy: /s/ James D. Taiclet\nName: James D. Taiclet\nTitle: President and CEO\n/s/ William H. Hess\nOptionee\nWilliam H. Hess\n7	EX-10.10 2 dex1010.htm NONCOMPETITION AND CONFIDENTIALITY AGREEMENT, WILLIAM H. HESS\nExhibit 10.10\nNONCOMPETITION AND CONFIDENTIALITY AGREEMENT\nThis Agreement (this “Agreement”) made as of January 1, 2004, by and between American Tower Corporation, a Delaware corporation\n(“ATC”), and William H. Hess (“Optionee”), an individual residing at\n.\nWHEREAS, ATC, American Tower International, Inc., a Delaware corporation (“ATC International”), and ATC South America Holding Corp,\na Delaware corporation (“Holding”), are parties to a Stockholder/Optionee Agreement, dated as of January 1, 2004, and of which Optionee executed\na counterpart on January 1, 2004 (collectively, the “Stockholder Agreement”), pursuant to which Holding will issue to Optionee options to purchase\nshares of its Common Stock, par value $.01 per share; and\nWHEREAS, Optionee is an employee of ATC or one of its subsidiaries and will perform services for Holding;\nNOW, THEREFORE, in consideration of the consummation of the transactions contemplated by the Stockholder Agreement, the sum of One\nDollar ($1.00), the material covenants and agreements contained herein, and other good and valuable consideration, the receipt, adequacy and\nsufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, do covenant and agree as follows:\nSection 1. Definitions. Terms used in this Agreement which are not defined herein but which are defined in the Stockholder Agreement shall\nhave the respective meanings so defined.\nConfidential Information shall mean any and all information (excluding information in the public domain other than as a direct or indirect\nresult of any breach by Optionee of the provisions of this Agreement) related to the business, operations, management, assets, property, plans or\nprospects, condition, financial or other, or results of operation of ATC, any Affiliate of ATC or any of their respective successors or assigns,\nincluding without limitation:\n(a)\nthe whole or any portion or phase of any business plans, financial information, purchasing data, supplier or customer data,\naccounting data, or computer programs (including source and object codes), tapes, discs, data, software or other information;\n(b) the whole or any portion or phase of any marketing or sales information or technique, sales records, customer lists, supplier lists,\nprices, sales projections or other listings of names, addresses, or telephone numbers, or other sales information;\n(c)\nthe whole or any portion or phase of any employee payroll, fringe benefit, salary, bonus, commission or other form of\ncompensation information and all employee personnel information, including information relating to performance evaluations,\ndiscipline, employee conduct, complaints and other matters relating to employment of any Person; and\n(d) Intellectual Property;\nwhether or not any of the foregoing has been made, developed and/or conceived by Optionee or by others in the employ of any such Person.\nNotwithstanding the foregoing, the term “Confidential Information”\nshall not include and information reasonably necessary for the conducting of any activity expressly excluded from the definition of “Proscribed\nActivity” hereunder.\nCovered Territory shall mean (a) while Optionee is employed by ATC or any of its Affiliates, North, South and Latin America, Europe and all\nother areas in which ATC or any of its Affiliates has invested or proposes to invest; and (b) thereafter, North America and any other markets where\nOptionee has been or is involved or is negotiating a proposed investment, acquisition or other transaction on behalf of ATC or any of its Affiliates.\nGood Reason shall mean:\n(a) the assignment to Optionee of any duties inconsistent in any material respect with his current position, authority, duties or\nresponsibilities or any other action by ATC or Holding or any of their Affiliates that results in a diminution, in any material respect, in\nsuch position, authority, duties or responsibilities; or\n(b) a material reduction in Optionee’s compensation or other benefits (taking into account the compensation and other benefits from ATC or\nHolding and their Affiliates from whom he may, from time to time, receive compensation), the result of which is to place Optionee in a\nmaterially less favorable position as to such compensation and benefits compared to other employees of ATC or Holding and their\nAffiliates of similar stature and position; or\n(c) any other failure by ATC or Holding or any of their Affiliates to comply in any material respect with any material provision of the\nStockholder Agreement;\nthat (i) is incapable of cure, or (ii) has not been cured or remedied promptly (and in any event within thirty (30) days) after written notice to the\nboard of directors of ATC from Optionee specifying in reasonable detail the nature of such assignment, action, reduction or failure.\nImmediate Family shall mean spouses, children and parents, whether related by blood, adoption or marriage.\nIntellectual Property shall mean, with respect to Optionee, any and all research, information, inventions, designs, procedures, developments,\ndiscoveries, improvements, patents and applications therefor, trademarks and applications therefor, service marks, trade names, copyrights and\napplications therefor, trade secrets, drawing, plans, systems, methods, specifications, computer software programs, tapes, discs and related data\nprocessing software (including object and source codes) owned by Optionee or in which he has an interest and all other manufacturing, engineering,\ntechnical, research and development data and know-how made, conceived, developed and/or acquired by Optionee solely or jointly with others\nduring the period of his employment with ATC or any of its Affiliates or within one year thereafter, which relate to the manufacture, production or\nprocessing of any products developed or sold by ATC or any of its Affiliates during the term of this Agreement or which are within the scope of or\nusable in connection with ATC’s or any of its Affiliates’ business as it may, from time to time, hereafter be conducted or proposed to be conducted.\nOptionee Forfeiture Event shall mean any of the following acts (other than as a result of the death or Disability of Optionee) committed by\nOptionee:\n(a) any willful or gross failure or refusal to perform, or any willful or gross misconduct in the performance of, any significant portion of\nhis obligations, duties and responsibilities as an\n2\nemployee of Holding, the effect of which has been or reasonably could be expected to materially and adversely affect the business of ATC or\nany of its Affiliates, as determined in good faith by the ATC Board of Directors, and that (i) is incapable of cure, or (ii) has not been cured or\nremedied as promptly as is reasonably possible (and in any event within thirty (30) days) after written notice from the Holding Board to\nOptionee specifying in reasonable detail the nature of such failure, refusal or misconduct, or\n(b) material breach of the provisions of Section 2, 3 or 4 of this Agreement which (i) is incapable of cure, or (ii) has not been cured or\nremedied promptly (and in any event within thirty (30) days) after written notice from the Holding Board to Optionee specifying in reasonable\ndetail the nature of such breach, or\n(c) Optionee is convicted of, pleads guilty or nolo contendero to any act of fraud, embezzlement or misappropriation or other crime\ninvolving moral turpitude in connection with his employment by Holding or any of its Affiliates intended by Optionee to result in substantial\npersonal enrichment and which adversely affects the business of ATC or any of its Affiliates, all as determined in good faith by the ATC Board\nof Directors.\nProscribed Activity shall mean any and all activities related to (a) the construction, ownership, operation, leasing or management of\ntelecommunications or broadcast towers, (b) providing network development services or components for wireless service providers or broadcasters,\n(c) providing high speed Internet access and related services via satellite to foreign-based Internet service providers, telephone or other\ntelecommunciations companies, and other businesses, or (d) providing other satellite and Internet protocol network transmission services.\nRestricted Period shall mean a period commencing with the date hereof and terminating the latest of (a) one year after exercise of the put (or\ncall) provided for in Section 6 of the Stockholder Agreement, (b) two years after the sooner to occur of (i) an Optionee Forfeiture Event, or (ii) the\nresignation by Optionee from all positions with ATC and each of its subsidiaries other than for Good Reason, or (c) one year after the resignation by\nOptionee from all positions with ATC and each of its subsidiaries for the reason set forth in paragraph (d) of the definition of Good Reason.\nSection 2. Confidentiality. Optionee shall not, either during the Restricted Period or thereafter, reveal or disclose to any person outside ATC\nand its subsidiaries or use for his own benefit, without ATC’s specific prior written authorization, whether by private communication or by public\naddress or publication or otherwise, any Confidential Information. All originals and copies of any Confidential Information, relating to the business\nof ATC or any of its subsidiaries, however and whenever produced, shall be the sole property of ATC and its subsidiaries, not to be removed from\nthe premises or custody of ATC or its subsidiaries without in each instance first obtaining prior written consent or authorization of ATC.\nSection 3. Disclosure and Assignment of Intellectual Property. Optionee shall promptly disclose to ATC and any successor or assign, and grant\nto ATC, and its successors and assigns (without any separate remuneration or compensation other than that received by him from time to time in the\ncourse of his employment) his entire right, title and interest throughout the world in and to all Intellectual Property. It is understood and agreed that\nOptionee has heretofore disclosed to ATC, and assigned to it, all Intellectual Property now known to him over which he has any control. Optionee\nagrees to execute all appropriate patent applications securing all United States and foreign patents on all Intellectual Property, and to do, execute and\ndeliver any and all acts and instruments that may be necessary or proper to vest all Intellectual Property in ATC or its nominee or designee and to\nenable ATC, or its nominee or designee, to obtain all such patents; and Optionee agrees to render to ATC, or its nominee or designee, all such\n3\nreasonable assistance as it may require in the prosecution of all such patent applications and applications for the reissue of such patents, and in the\nprosecution or defense of all interferences which may be declared involving any of said patent applications or patents, but the expense of all such\nassignments and patent applications, or all other proceedings referred to herein above, shall be borne by ATC. Optionee shall be entitled to fair and\nreasonable compensation for any such assistance requested by ATC or its nominee or designee and furnished by him after the termination of his\nemployment.\nSection 4. Restriction. ATC through its subsidiaries intends to continue and expand the business heretofore conducted by it and them and it and\nin connection therewith ATC and its subsidiaries have invested and may in the future be required to invest substantial sums of money, directly or\nindirectly, and as Optionee recognizes that ATC would be substantially injured by Optionee disclosing to others, or by Optionee using for his own\nbenefit, any Intellectual Property or any other Confidential Information he has obtained or shall obtain from ATC or any of its subsidiaries, or which\nhe may now possess and which he has made available to ATC or any of its subsidiaries, Optionee agrees that during the Restricted Period:\n(a) Neither he nor any member of his Immediate Family will be interested, directly or indirectly, as an investor in any other Entity, business\nor enterprise within the Covered Territory, which is engaged in any Proscribed Activity (except as an investor in securities (i) issued by\nATC or any of its subsidiaries or (ii) listed on a national securities exchange or actively traded over the counter so long as such\ninvestments are in amounts not significant as compared to his total investments and do not exceed one percent (1%) of the outstanding\nsecurities of the issuer of the same class or issue); and\n(b) Other than in connection with his serving as an employee of ATC and its subsidiaries, he will not, directly or indirectly, for his own\naccount or as employee, officer, director, partner, trustee, principal, member, joint venturer, agent, adviser, consultant or otherwise,\nengage within the Covered Territory, in any phase of any Proscribed Activity.\nOptionee further agrees that during the Restricted Period, he will not, directly or indirectly, solicit business for a Proscribed Activity from any\nPerson, business or enterprise which is, or proposes to be, a customer of ATC or any of its subsidiaries or any of their respective successors or\nassigns, or from any Person, business or enterprise with which ATC or any of its subsidiaries or any of their respective successors or assigns is\nnegotiating or holding discussion or to which it has made a proposal at the time of such termination, induce any such Person, business or enterprise\nnot to undertake, or to curtail or cancel business with ATC or any of its subsidiaries or any of their respective successors or assigns, induce or\nattempt to induce any employee of ATC or any of its subsidiaries or any of their respective successors or assigns to terminate his employment\ntherewith, or intentionally divulge or utilize for the direct or indirect benefit (financial or other) of himself or any other Person, business or\nenterprise, any Intellectual Property or any Confidential Information he has obtained as an employee and/or stockholder of ATC or any of its\nsubsidiaries.\nThis Agreement shall be deemed to consist of a series of separate covenants, one for each line of business carried on by ATC and its\nsubsidiaries and each region included within the geographic areas referred to in this Section. Optionee and ATC are of the belief that the Restricted\nPeriod, the Proscribed Activity and the Covered Territory herein specified are reasonable, in light of the circumstances as they exist on the date upon\nwhich this Agreement has been executed, including without limitation the nature of the business in which ATC and its subsidiaries are engaged and\nproposes to engage, the state of their product development and Optionee’s knowledge of such business and his prior affiliations with and interest in\nATC. However, if such period, activity or area should be adjudged unreasonable in any Legal Action, whether at law or in equity, then the Restricted\nPeriod shall be reduced by such period of time, the\n4\nProscribed Activity shall be reduced by such activities, or the Covered Territory shall be reduced by such area, or any combination thereof, as are\ndeemed unreasonable, so that this covenant may be enforced in such area, with respect to such activities and during such period of time as is\nadjudged to be reasonable.\nSection 5. Security for Optionee Obligations. Optionee’s obligations under this Agreement shall be secured by twenty percent (20%) of the\ngross sale proceeds (before deduction of commissions, discounts, brokerage fees or other fees and expenses) of (a) all shares of capital stock and\nother securities issued by Holding to Optionee, and (b) all shares of capital stock and other securities issued by Holding received by Optionee\npursuant to any distribution to him or otherwise acquired by him. Optionee and ATC agree that all such proceeds shall be held by an escrow agent or\nagents reasonably acceptable to Optionee and ATC and subject to the terms and conditions of an escrow agreement to be executed by ATC and\nOptionee and reasonably satisfactory to ATC and Optionee.\nSection 6. Miscellaneous Provisions.\n(a) Assignment; Successors and Assigns. In the event that ATC shall be merged with, or consolidated into, any other Entity, or in the event that\nit shall sell and transfer substantially all of its assets to another Entity, the terms of this Agreement shall inure to the benefit of, and be assumed by,\nthe Entity resulting from such merger or consolidation, or to which ATC’s assets shall be sold and transferred. This Agreement shall not be\nassignable by Optionee, but it shall be binding upon his heirs, executors, administrators and legal representatives to the extent they constitute\nmembers of his Immediate Family. Nothing in this Agreement expressed or implied is intended to and shall not be construed to confer upon or create\nin any person (other than the parties hereto and their permitted successors and assigns) any rights or remedies under or by reason of this Agreement.\n(b) Specific Performance; Other Rights and Remedies. Optionee recognizes and agrees that ATC’s remedy at law for any breach of the\nprovisions of this Agreement, including without limitation Sections 2, 3, or 4, would be inadequate, and he agrees that for breach of such provisions,\nATC shall, in addition to such other remedies as may be available to it at law or in equity or as provided in this Agreement, be entitled to injunctive\nrelief and to enforce its rights by an action for specific performance to the extent permitted by applicable law. Without limiting the generality of the\nforegoing, in the event of a breach or threatened breach by Optionee of the provisions of this Agreement, ATC shall be entitled to an injunction\nrestraining Optionee from soliciting employees, customers or suppliers, or from disclosing, in whole or in part, any Confidential Information, or\nfrom rendering any services to any Person to whom such information has been disclosed, or is threatened to be disclosed, from engaging,\nparticipating or otherwise being connected with any business described in Section 4 or from otherwise violating the terms of this Agreement.\nNothing herein contained shall be construed as prohibiting each party from pursuing any other remedies available to it pursuant to the provisions of,\nand subject to the limitations contained in, this Agreement for such breach or threatened breach; provided, however, that none of the parties shall\npursue, and each party hereby waives, any punitive, indirect, special, incidental, exemplary, consequential or similar damages arising out of this\nAgreement (including without limitation damages for diminution in value and loss of anticipated profits) and the multiplied portion of damages.\n(c) Entire Agreement. This Agreement constitutes the entire agreement between ATC and Optionee with respect to the subject matter hereof,\nand supersedes all prior agreements, arrangements, covenants, promises, conditions, understandings, inducements, representations and negotiations,\nexpressed or implied, oral or written, among them as to such subject matter.\n(d) Waivers; Amendments. Any provision of this Agreement to the contrary notwithstanding, changes in or additions to this Agreement may be\nmade, or compliance with any term, covenant, agreement, condition or provision set forth herein may be omitted or waived (either generally or in a\n5\nparticular instance and either retroactively or prospectively) with, but only with, the consent in writing of the parties hereto. Any consent may be\ngiven subject to satisfaction of conditions stated therein. The failure to insist upon the strict provisions of any covenant, term, condition or other\nprovision of this Agreement or to exercise any right or remedy thereunder shall not constitute a waiver of any such covenant, term, condition or other\nprovision thereof or default in connection therewith. The waiver of any covenant, term, condition or other provision thereof or default thereunder\nshall not affect or alter this Agreement in any other respect, and each and every covenant, term, condition or other provision of this Agreement shall,\nin such event, continue in full force and effect, except as so waived, and shall be operative with respect to any other then existing or subsequent\ndefault in connection therewith.\n(e) Notices. All notices and other communications which by any provision of this Agreement are required or permitted to be given shall be\ngiven in writing and shall be effective (i) five (5) days after being mailed by first-class, express mail, postage prepaid, (ii) the next day when sent by\novernight by recognized mail courier service, (iii) upon confirmation when sent by telex, telegram, telecopy or other similar form of rapid\ntransmission, confirmed by mailing (by first class or express mail, postage prepaid, or recognized overnight mail courier service) written\nconfirmation at substantially the same time as such rapid transmission, (iv) upon delivery personally delivered to an officer of the receiving party, or\n(v) upon delivery personally delivered to the Optionee. All such communications shall be mailed, set or delivered as set forth below or at such other\naddresses as the party entitled thereto shall have designated by notice as herein provided.\n(i) if to Holding or ATC, at 116 Huntington Avenue, Boston, Massachusetts 02116 Attention: Chief Executive Officer and Chief\nFinancial Officer, Telecopier No.: (617) 375-7575 with a copy (which shall not constitute notice to ATC or Holding) to Sullivan & Worcester\nLLP, One Post Office Square, Boston, Massachusetts 02109, Attention: William J. Curry, Esq., Telecopier No.: (617) 338-2880) and\n(ii) if to Optionee, at\n, Telecopier No.\n.\n(f) Severability. If any provision of this Agreement shall be held or deemed to be, or shall in fact be, invalid, inoperative, illegal or\nunenforceable as applied to any particular case in any jurisdiction or jurisdictions, or in all jurisdictions or in all cases, because of the conflicting of\nany provision with any constitution or statute or rule of public policy or for any other reason, such circumstance shall not have the effect of rendering\nthe provision or provisions in question invalid, inoperative, illegal or unenforceable in any other jurisdiction or in any other case or circumstance or\nof rendering any other provision or provisions herein contained invalid, inoperative, illegal or unenforceable to the extent that such other provisions\nare not themselves actually in conflict with such constitution, statute or rule of public policy, but this Agreement shall be reformed and construed in\nany such jurisdiction or case as if such invalid, inoperative, illegal or unenforceable provision had never been contained herein and such provision\nreformed so that it would be valid, operative and enforceable to the maximum extent permitted in such jurisdiction or in such case, except when such\nreformation and construction could operate as an undue hardship on either party, or constitute a substantial deviation from the general intent and\npurpose of such party as reflected in this Agreement. The parties shall endeavor in good faith negotiations to replace the invalid, inoperative, illegal\nor unenforceable provisions with valid, operative, legal and enforceable provisions the economic effect of which comes as close as possible to that of\nthe invalid, inoperative, illegal or unenforceable provisions.\n(g) Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which\ntogether shall constitute one and the same instrument,\n6\nbinding upon all the parties hereto. In pleading or proving any provision of this Agreement, it shall not be necessary to produce more than one of\nsuch counterparts.\n(h) Section Headings. The headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or\ninterpretation of this Agreement.\n(i) Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the applicable laws of\nthe United States of America and the domestic substantive laws of the State of Georgia without giving effect to any choice or conflict of laws\nprovision or rule that would cause the application of domestic substantive laws of any other jurisdiction. Anything in this Agreement to the contrary\nnotwithstanding, in the event of any dispute between the parties which results in a Legal Action, the prevailing party shall be entitled to receive from\nthe non-prevailing party reimbursement for reasonable legal fees and expenses incurred by such prevailing party in such Legal Action.\n(j) Further Acts. Each party agrees that at any time, and from time to time, before and after the consummation of the transactions contemplated\nby this Agreement, it will do all such things and execute and deliver all such agreements, assignments, instruments, other documents and assurances,\nas any other party or its counsel reasonably deems necessary or desirable in order to carry out the terms and conditions of this Agreement and the\ntransactions contemplated hereby or to facilitate the enjoyment of any of the rights created hereby or to be created hereunder.\n(k) Gender. Whenever used herein the singular number shall include the plural, the plural shall include the singular, and the use of any gender\nshall include all genders.\n(l) Consultation with Counsel; No Representations. Optionee agrees and acknowledges that he has had a full and complete opportunity to\nconsult with counsel of his own choosing concerning the terms, enforceability and implications of this Agreement, and that ATC has made no\nrepresentations or warranties to him concerning the terms, enforceability or implications of this Agreement other than as are reflected in this\nAgreement.\nIN WITNESS WHEREOF, the parties hereto have executed this Noncompetition and Confidentiality Agreement, all pursuant to authority\nheretofore granted, as of the date and year first above written.\nAmerican Tower Corporation\nBy: /s/ James D. Taiclet\nName: James D. Taiclet\nTitle: President and CEO\n/s/ William H. Hess\nOptionee\nWilliam H. Hess\n7
33223e925bb4c8b95a2e9d71bd406c2d.pdf	effective_date jurisdiction party term	EXHIBIT B: MICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT\nLOGO\nNon-Disclosure Agreement\nThis Non-Disclosure Agreement (“agreement”) is between the parties signing below. “We,” “us” and “our” refer to both of the parties signing below\nand our respective affiliates.\nCOMPANY AND ITS AFFILIATES or\nINDIVIDUAL: Rainmaker Systems\nMICROSOFT CORPORATION\nAND ITS AFFILIATES\nAddress: 8701 N Mopac\nOne Microsoft Way\nAustin\nTX 78759\nRedmond, WA 98052-6399\nUSA\nUSA\nSign:\nLOGO\nLOGO\nPrint Name: Rick Cassizzi\nMary E. Snapp\nPrint Title: Controller\nCorporate Vice President, Deputy General Counsel\nSignature Date: 5.19.08\n05/19/2008\n1. The purpose of this agreement. This agreement allows us to disclose confidential information to each other, to our own affiliates and to the\nother ’s affiliates, under the following terms. An “affiliate” is any legal entity that one of us owns, that owns one of us or that is under common\ncontrol with one of us. “Control” and “own” mean possessing a 50% or greater interest in entity or the right to direct the management of the entity.\n2. Confidential Information.\na.\nWhat is included. “Confidential Information” is non-public information, know-how and trade secrets in any form that:\n•\nAre designated as “confidential”; or\n•\nA reasonable person knows or reasonably should understand to be confidential.\nb. What is not included. The following types of information, however marked, are not confidential information. Information that:\n•\nIs, or becomes, publicly available without a breach of this agreement;\n•\nWas lawfully known to the receiver of the information without an obligation to keep it confidential;\nMicrosoft filing instruction: after both parties sign and date this Agreement, Your customer should retain one original for their files and return the\nother to you. Then, address the second original to:\nNDA, CRM 124/Records\nMicrosoft Corporation\n1 Microsoft Way\nRedmond, WA 98052-6399\nLOGO\nJEAID: 133205\nExhibit Page 2\n**** = Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been\nrequested with respect to the omitted portions.\n•\nIs received from another source who can disclose it lawfully and without an obligation to keep it confidential;\n•\nIs independently developed; or\n•\nIs a comment or suggestion one of us volunteers about the other’s business, products or services.\n3. Treatment of confidential information.\na.\nIn general. Subject to the other terms of this agreement, each of us agrees:\n•\nWe will not disclose the other’s confidential information to third parties; and\n•\nWe will use and disclose the other’s confidential information only for purposes of our business relationship with each other.\nb. Security precautions. Each of us agrees:\n•\nTo take reasonable steps to protect the other’s confidential information. These steps must be at least as protective as those we take\nto protect our own confidential information;\n•\nTo notify the other promptly upon discovery of any unauthorized use or disclosure of confidential information; and\n•\nTo cooperate with the other to help regain control of the confidential information and prevent further unauthorized use or\ndisclosure of it.\nc.\nSharing confidential information with affiliates and representatives.\n•\nA “representative” is an employee, contractor, advisor or consultant of one of us or one of our respective affiliates.\n•\nEach of us may disclose the other’s confidential information to our representatives (who may then disclose that confidential\ninformation to other of our representatives) only if those representatives have a need to know about it for purposes of our business\nrelationship with each other. Before doing so, each of us must:\n•\nensure that affiliates and representatives are required to protect the confidential information on terms consistent with this\nagreement; and\n•\naccept responsibility for each representative’s use of confidential information.\n•\nNeither of us is required to restrict work assignments of representatives who have had access to confidential information. Neither\nof us can control the incoming information the other will disclose to us in the course of working together, or what our\nrepresentatives will remember, even without notes or other aids. We agree that use of information in representatives’ unaided\nmemories in the development or deployment of our respective products or services does not create liability under this agreement\nor trade secret law, and we agree to limit what we disclose to the other accordingly.\nd. Disclosing confidential information if required to by law. Each of us may disclose the other’s confidential information if required to\ncomply with a court order or other government demand that has the force of law. Before doing so, each of us must seek the highest level\nof protection available and, when possible, give the other enough prior notice to provide a reasonable chance to seek a protective order.\nLOGO\nExhibit Page 3\n**** = Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been\nrequested with respect to the omitted portions.\n4. Length of confidential information obligations.\na.\nTermination. This agreement continues in effect until one of us terminates it. Either of us may terminate this agreement for any reason\nby providing the other with 30 days’ advance written notice. Termination of this agreement will not change any of the rights and duties\nmade while this agreement is in effect.\nb. No other use or disclosure of confidential information. Except as permitted above, neither of us will use or disclose the other’s\nconfidential information for five years after we receive it. The five-year time period does not apply if applicable law requires a longer\nperiod.\n5. General rights and obligations.\na.\nLaw that applies; jurisdiction and venue. The laws of the State of Washington govern this agreement. If federal jurisdiction exists, we\neach consent to exclusive jurisdiction and venue in the federal courts in King County, Washington. If not, we each consent to exclusive\njurisdiction and venue in the superior court of King county, Washington.\nb. Compliance with law. Each of us will comply with all export laws that apply to confidential information.\nc.\nWaiver. Any delay or failure of either of us to exercise a right or remedy will not result in a waiver of that, or any other, right or remedy.\nd. Money damages insufficient. Each of us acknowledges that money damages may not be sufficient compensation for a breach of this\nagreement. Each of us agrees that the other may seek court orders to stop confidential information from becoming public in breach of\nthis agreement.\ne.\nAttorneys’ fees. In any dispute relating to this agreement the prevailing party will be entitled to recover reasonable attorneys’ fees and\ncosts.\nf. Transfers of this agreement. If one of us transfers this agreement, we will not disclose the other’s confidential information to the\ntransferee without the other’s consent.\ng. Enforceability. If any provision of this agreement is unenforceable, the parties (or, if we cannot agree, a court) will revise it so that it can\nbe enforced. Even if no revision is possible, the rest of this agreement will remain in place.\nh. Entire agreement. This agreement does not grant any implied intellectual property licenses to confidential information, except as stated\nabove. We may have contracts with each other covering other specific aspects of our relationship (“other contracts”). The other contract\nmay include commitments about confidential information, either within it or by referencing another non-disclosure agreement. If so,\nthose obligations remain in place for purposes of that other contract. With this exception, this is the entire agreement between us\nregarding confidential information. It replaces all other agreements and understanding regarding confidential information. We can only\nchange this agreement with a signed document that states that is changing this agreement.\nLOGO\nExhibit Page 4\n**** = Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been\nrequested with respect to the omitted portions.	EXHIBIT B: MICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT\n».LOGO\nNon-Disclosure Agreement\nThis Non-Disclosure Agreement (“agreement”) is between the parties signing below. “We,” “us” and “our” refer to both of the parties signing below\nand our respective affiliates.\nCOMPANY AND ITS AFFILIATES or MICROSOFT CORPORATION\nINDIVIDUAL: Rainmaker Systems AND ITS AFFILIATES\nAddress: 8701 N Mopac One Microsoft Way\nAustin Redmond, WA 98052-6399\nTX 78759\nUsa\nSign: LOGO LOGO Print Name: Rick Cassizzi Mary E. Snapp Print Title: Controller Corporate Vice President, Deputy General Counsel Signature Date: 5.19.08 05/19/2008  \n1. The purpose of this agreement. This agreement allows us to disclose confidential information to each other, to our own affiliates and to the\nother’s affiliates, under the following terms. An “affiliate” is any legal entity that one of us owns, that owns one of us or that is under common\ncontrol with one of us. “Control” and “own” mean possessing a 50% or greater interest in entity or the right to direct the management of the entity.\n2.  Confidential Information.\na.  What is included. “Confidential Information” is non-public information, know-how and trade secrets in any form that:\n. Are designated as “confidential”; or\n. A reasonable person knows or reasonably should understand to be confidential.\nb.  What is not included. The following types of information, however marked, are not confidential information. Information that:\n. Is, or becomes, publicly available without a breach of this agreement;\n. Was lawfully known to the receiver of the information without an obligation to keep it confidential;\nMicrosoft filing instruction: after both parties sign and date this Agreement, Your customer should retain one original for their files and return the\nother to you. Then, address the second original to:\nNDA, CRM 124/Records\nMicrosoft Corporation\n1 Microsoft Way\nRedmond, WA 98052-6399\n».LOGO JEAID: 133205\nExhibit Page 2\n##%% = Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been\nrequested with respect to the omitted portions.\n. Is received from another source who can disclose it lawfully and without an obligation to keep it confidential;\n. Is independently developed; or\n. Is a comment or suggestion one of us volunteers about the other’s business, products or services.\n3.  Treatment of confidential information.\na.  In general. Subject to the other terms of this agreement, each of us agrees:\n. We will not disclose the other’s confidential information to third parties; and\n. We will use and disclose the other’s confidential information only for purposes of our business relationship with each other.\nb.  Security precautions. Each of us agrees:\n. To take reasonable steps to protect the other’s confidential information. These steps must be at least as protective as those we take\nto protect our own confidential information;\n. To notify the other promptly upon discovery of any unauthorized use or disclosure of confidential information; and\n. To cooperate with the other to help regain control of the confidential information and prevent further unauthorized use or\ndisclosure of it.\nc.  Sharing confidential information with affiliates and representatives.\n. A “representative” is an employee, contractor, advisor or consultant of one of us or one of our respective affiliates.\n. Each of us may disclose the other’s confidential information to our representatives (who may then disclose that confidential\ninformation to other of our representatives) only if those representatives have a need to know about it for purposes of our business\nrelationship with each other. Before doing so, each of us must:\n» ensure that affiliates and representatives are required to protect the confidential information on terms consistent with this\nagreement; and\n» accept responsibility for each representative’s use of confidential information.\n. Neither of us is required to restrict work assignments of representatives who have had access to confidential information. Neither\nof us can control the incoming information the other will disclose to us in the course of working together, or what our\nrepresentatives will remember, even without notes or other aids. We agree that use of information in representatives’ unaided\nmemories in the development or deployment of our respective products or services does not create liability under this agreement\nor trade secret law, and we agree to limit what we disclose to the other accordingly.\nd. Disclosing confidential information if required to by law. Each of us may disclose the other’s confidential information if required to\ncomply with a court order or other government demand that has the force of law. Before doing so, each of us must seek the highest level\nof protection available and, when possible, give the other enough prior notice to provide a reasonable chance to seek a protective order.\n».LOGO\nExhibit Page 3\n##%% = Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been\nrequested with respect to the omitted portions.\n4.  Length of confidential information obligations. d.\nTermination. This agreement continues in effect until one of us terminates it. Either of us may terminate this agreement for any reason\nby providing the other with 30 days’ advance written notice. Termination of this agreement will not change any of the rights and duties\nmade while this agreement is in effect.\nNo other use or disclosure of confidential information. Except as permitted above, neither of us will use or disclose the other’s\nconfidential information for five years after we receive it. The five-year time period does not apply if applicable law requires a longer\nperiod.\n5.  General rights and obligations. d.\n».LOGO Law that applies; jurisdiction and venue. The laws of the State of Washington govern this agreement. If federal jurisdiction exists, we\neach consent to exclusive jurisdiction and venue in the federal courts in King County, Washington. If not, we each consent to exclusive\njurisdiction and venue in the superior court of King county, Washington.\nCompliance with law. Each of us will comply with all export laws that apply to confidential information.\nWaiver. Any delay or failure of either of us to exercise a right or remedy will not result in a waiver of that, or any other, right or remedy.\nMoney damages insufficient. Each of us acknowledges that money damages may not be sufficient compensation for a breach of this\nagreement. Each of us agrees that the other may seek court orders to stop confidential information from becoming public in breach of\nthis agreement.\nAttorneys’ fees. In any dispute relating to this agreement the prevailing party will be entitled to recover reasonable attorneys’ fees and\ncosts.\nTransfers of this agreement. If one of us transfers this agreement, we will not disclose the other’s confidential information to the\ntransferee without the other’s consent.\nEnforceability. If any provision of this agreement is unenforceable, the parties (or, if we cannot agree, a court) will revise it so that it can\nbe enforced. Even if no revision is possible, the rest of this agreement will remain in place.\nEntire agreement. This agreement does not grant any implied intellectual property licenses to confidential information, except as stated\nabove. We may have contracts with each other covering other specific aspects of our relationship (“other contracts”). The other contract\nmay include commitments about confidential information, either within it or by referencing another non-disclosure agreement. If so,\nthose obligations remain in place for purposes of that other contract. With this exception, this is the entire agreement between us\nregarding confidential information. It replaces all other agreements and understanding regarding confidential information. We can only\nchange this agreement with a signed document that states that is changing this agreement.\nExhibit Page 4\n##%% = Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.	EXHIBIT B: MICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT\nLOGO\nNon-Disclosure Agreement\nThis Non-Disclosure Agreement ("agreement") is between the parties signing below. "We," "us" and "our" refer to both of the parties signing below\nand our respective affiliates.\nCOMPANY AND ITS AFFILIATES or\nMICROSOFT CORPORATION\nINDIVIDUAL: Rainmaker Systems\nAND ITS AFFILIATES\nAddress: 8701 N Mopac\nOne Microsoft Way\nAustin\nRedmond, WA 98052-6399\nTX 78759\nUSA\nUSA\nSign:\nLOGO\nLOGO\nPrint Name: Rick Cassizzi\nMary E. Snapp\nPrint Title: Controller\nCorporate Vice President, Deputy General Counsel\nSignature Date: 5.19.08\n05/19/2008\n1. The purpose of this agreement. This agreement allows us to disclose confidential information to each other, to our own affiliates and to the\nother's affiliates, under the following terms. An "affiliate" is any legal entity that one of us owns, that owns one of us or that is under common\ncontrol with one of us. "Control" and "own" mean possessing a 50% or greater interest in entity or the right to direct the management of the entity.\n2.\nConfidential Information.\na.\nWhat is included. "Confidential Information" is non-public information, know-how and trade secrets in any form that:\nAre designated as "confidential"; or\nA reasonable person knows or reasonably should understand to be confidential.\nb.\nWhat is not included. The following types of information, however marked, are not confidential information. Information that:\nIs, or becomes, publicly available without a breach of this agreement;\nWas lawfully known to the receiver of the information without an obligation to keep it confidential;\nMicrosoft filing instruction: after both parties sign and date this Agreement, Your customer should retain one original for their files and return the\nother to you. Then, address the second original to:\nNDA, CRM 124/Records\nMicrosoft Corporation\n1 Microsoft Way\nRedmond, WA 98052-6399\nLOGO\nJEAID: 133205\nExhibit Page 2\n* = Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been\nrequested with respect to the omitted portions.\nIs received from another source who can disclose it lawfully and without an obligation to keep it confidential;\nIs independently developed; or\nIs a comment or suggestion one of us volunteers about the other's business, products or services.\n3.\nTreatment of confidential information.\na.\nIn general. Subject to the other terms of this agreement, each of us agrees:\nWe will not disclose the other's confidential information to third parties; and\nWe will use and disclose the other's confidential information only for purposes of our business relationship with each other.\nb.\nSecurity precautions. Each of us agrees:\nTo take reasonable steps to protect the other's confidential information. These steps must be at least as protective as those we take\nto protect our own confidential information;\nTo notify the other promptly upon discovery of any unauthorized use or disclosure of confidential information; and\nTo cooperate with the other to help regain control of the confidential information and prevent further unauthorized use or\ndisclosure of it.\nC.\nSharing confidential information with affiliates and representatives.\nA "representative" is an employee, contractor, advisor or consultant of one of us or one of our respective affiliates.\nEach of us may disclose the other's confidential information to our representatives (who may then disclose that confidential\ninformation to other of our representatives) only if those representatives have a need to know about it for purposes of our business\nrelationship with each other. Before doing so, each of us must:\nensure that affiliates and representatives are required to protect the confidential information on terms consistent with this\nagreement; and\naccept responsibility for each representative's use of confidential information.\nNeither of us is required to restrict work assignments of representatives who have had access to confidential information. Neither\nof us can control the incoming information the other will disclose to us in the course of working together, or what our\nrepresentatives will remember, even without notes or other aids. We agree that use of information in representatives' unaided\nmemories in the development or deployment of our respective products or services does not create liability under this agreement\nor trade secret law, and we agree to limit what we disclose to the other accordingly.\nd.\nDisclosing confidential information if required to by law. Each of us may disclose the other's confidential information if required to\ncomply with a court order or other government demand that has the force of law. Before doing SO, each of us must seek the highest level\nof protection available and, when possible, give the other enough prior notice to provide a reasonable chance to seek a protective order.\nALOGO\nExhibit Page 3\n* E Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been\nrequested with respect to the omitted portions.\n4.\nLength of confidential information obligations.\na.\nTermination. This agreement continues in effect until one of us terminates it. Either of us may terminate this agreement for any reason\nby providing the other with 30 days' advance written notice. Termination of this agreement will not change any of the rights and duties\nmade while this agreement is in effect.\nb.\nNo other use or disclosure of confidential information. Except as permitted above, neither of us will use or disclose the other's\nconfidential information for five years after we receive it. The five-year time period does not apply if applicable law requires a longer\nperiod.\n5.\nGeneral rights and obligations.\na.\nLaw that applies; jurisdiction and venue. The laws of the State of Washington govern this agreement. If federal jurisdiction exists, we\neach consent to exclusive jurisdiction and venue in the federal courts in King County, Washington. If not, we each consent to exclusive\njurisdiction and venue in the superior court of King county, Washington.\nb.\nCompliance with law. Each of us will comply with all export laws that apply to confidential information\nC.\nWaiver. Any delay or failure of either of us to exercise a right or remedy will not result in a waiver of that, or any other, right or remedy.\nd. Money damages insufficient. Each of us acknowledges that money damages may not be sufficient compensation for a breach of this\nagreement. Each of us agrees that the other may seek court orders to stop confidential information from becoming public in breach of\nthis agreement.\ne.\nAttorneys' fees. In any dispute relating to this agreement the prevailing party will be entitled to recover reasonable attorneys' fees and\ncosts.\nf.\nTransfers of this agreement. If one of us transfers this agreement, we will not disclose the other's confidential information to the\ntransferee without the other's consent.\ng.\nEnforceability. If any provision of this agreement is unenforceable, the parties (or, if we cannot agree, a court) will revise it so that it can\nbe enforced. Even if no revision is possible, the rest of this agreement will remain in place.\nh.\nEntire agreement. This agreement does not grant any implied intellectual property licenses to confidential information, except as stated\nabove. We may have contracts with each other covering other specific aspects of our relationship ("other contracts"). The other contract\nmay include commitments about confidential information, either within it or by referencing another non-disclosure agreement. If so,\nthose obligations remain in place for purposes of that other contract. With this exception, this is the entire agreement between us\nregarding confidential information. It replaces all other agreements and understanding regarding confidential information. We can only\nchange this agreement with a signed document that states that is changing this agreement.\nLOGO\nExhibit Page 4\nE Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been\nrequested with respect to the omitted portions.	EXHIBIT B: MICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT\nLOGO\nNon-Disclosure Agreement\nThis Non-Disclosure Agreement (“agreement”) is between the parties signing below. “We,” “us” and “our” refer to both of the parties signing below\nand our respective affiliates.\nCOMPANY AND ITS AFFILIATES or\nINDIVIDUAL: Rainmaker Systems\nMICROSOFT CORPORATION\nAND ITS AFFILIATES\nAddress: 8701 N Mopac\nOne Microsoft Way\nAustin\nTX 78759\nRedmond, WA 98052-6399\nUSA\nUSA\nSign:\nLOGO\nLOGO\nPrint Name: Rick Cassizzi\nMary E. Snapp\nPrint Title: Controller\nCorporate Vice President, Deputy General Counsel\nSignature Date: 5.19.08\n05/19/2008\n1. The purpose of this agreement. This agreement allows us to disclose confidential information to each other, to our own affiliates and to the\nother ’s affiliates, under the following terms. An “affiliate” is any legal entity that one of us owns, that owns one of us or that is under common\ncontrol with one of us. “Control” and “own” mean possessing a 50% or greater interest in entity or the right to direct the management of the entity.\n2. Confidential Information.\na.\nWhat is included. “Confidential Information” is non-public information, know-how and trade secrets in any form that:\n•\nAre designated as “confidential”; or\n•\nA reasonable person knows or reasonably should understand to be confidential.\nb. What is not included. The following types of information, however marked, are not confidential information. Information that:\n•\nIs, or becomes, publicly available without a breach of this agreement;\n•\nWas lawfully known to the receiver of the information without an obligation to keep it confidential;\nMicrosoft filing instruction: after both parties sign and date this Agreement, Your customer should retain one original for their files and return the\nother to you. Then, address the second original to:\nNDA, CRM 124/Records\nMicrosoft Corporation\n1 Microsoft Way\nRedmond, WA 98052-6399\nLOGO\nJEAID: 133205\nExhibit Page 2\n**** = Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been\nrequested with respect to the omitted portions.\n•\nIs received from another source who can disclose it lawfully and without an obligation to keep it confidential;\n•\nIs independently developed; or\n•\nIs a comment or suggestion one of us volunteers about the other’s business, products or services.\n3. Treatment of confidential information.\na.\nIn general. Subject to the other terms of this agreement, each of us agrees:\n•\nWe will not disclose the other’s confidential information to third parties; and\n•\nWe will use and disclose the other’s confidential information only for purposes of our business relationship with each other.\nb. Security precautions. Each of us agrees:\n•\nTo take reasonable steps to protect the other’s confidential information. These steps must be at least as protective as those we take\nto protect our own confidential information;\n•\nTo notify the other promptly upon discovery of any unauthorized use or disclosure of confidential information; and\n•\nTo cooperate with the other to help regain control of the confidential information and prevent further unauthorized use or\ndisclosure of it.\nc.\nSharing confidential information with affiliates and representatives.\n•\nA “representative” is an employee, contractor, advisor or consultant of one of us or one of our respective affiliates.\n•\nEach of us may disclose the other’s confidential information to our representatives (who may then disclose that confidential\ninformation to other of our representatives) only if those representatives have a need to know about it for purposes of our business\nrelationship with each other. Before doing so, each of us must:\n•\nensure that affiliates and representatives are required to protect the confidential information on terms consistent with this\nagreement; and\n•\naccept responsibility for each representative’s use of confidential information.\n•\nNeither of us is required to restrict work assignments of representatives who have had access to confidential information. Neither\nof us can control the incoming information the other will disclose to us in the course of working together, or what our\nrepresentatives will remember, even without notes or other aids. We agree that use of information in representatives’ unaided\nmemories in the development or deployment of our respective products or services does not create liability under this agreement\nor trade secret law, and we agree to limit what we disclose to the other accordingly.\nd. Disclosing confidential information if required to by law. Each of us may disclose the other’s confidential information if required to\ncomply with a court order or other government demand that has the force of law. Before doing so, each of us must seek the highest level\nof protection available and, when possible, give the other enough prior notice to provide a reasonable chance to seek a protective order.\nLOGO\nExhibit Page 3\n**** = Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been\nrequested with respect to the omitted portions.\n4. Length of confidential information obligations.\na.\nTermination. This agreement continues in effect until one of us terminates it. Either of us may terminate this agreement for any reason\nby providing the other with 30 days’ advance written notice. Termination of this agreement will not change any of the rights and duties\nmade while this agreement is in effect.\nb. No other use or disclosure of confidential information. Except as permitted above, neither of us will use or disclose the other’s\nconfidential information for five years after we receive it. The five-year time period does not apply if applicable law requires a longer\nperiod.\n5. General rights and obligations.\na.\nLaw that applies; jurisdiction and venue. The laws of the State of Washington govern this agreement. If federal jurisdiction exists, we\neach consent to exclusive jurisdiction and venue in the federal courts in King County, Washington. If not, we each consent to exclusive\njurisdiction and venue in the superior court of King county, Washington.\nb. Compliance with law. Each of us will comply with all export laws that apply to confidential information.\nc.\nWaiver. Any delay or failure of either of us to exercise a right or remedy will not result in a waiver of that, or any other, right or remedy.\nd. Money damages insufficient. Each of us acknowledges that money damages may not be sufficient compensation for a breach of this\nagreement. Each of us agrees that the other may seek court orders to stop confidential information from becoming public in breach of\nthis agreement.\ne.\nAttorneys’ fees. In any dispute relating to this agreement the prevailing party will be entitled to recover reasonable attorneys’ fees and\ncosts.\nf. Transfers of this agreement. If one of us transfers this agreement, we will not disclose the other’s confidential information to the\ntransferee without the other’s consent.\ng. Enforceability. If any provision of this agreement is unenforceable, the parties (or, if we cannot agree, a court) will revise it so that it can\nbe enforced. Even if no revision is possible, the rest of this agreement will remain in place.\nh. Entire agreement. This agreement does not grant any implied intellectual property licenses to confidential information, except as stated\nabove. We may have contracts with each other covering other specific aspects of our relationship (“other contracts”). The other contract\nmay include commitments about confidential information, either within it or by referencing another non-disclosure agreement. If so,\nthose obligations remain in place for purposes of that other contract. With this exception, this is the entire agreement between us\nregarding confidential information. It replaces all other agreements and understanding regarding confidential information. We can only\nchange this agreement with a signed document that states that is changing this agreement.\nLOGO\nExhibit Page 4\n**** = Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been\nrequested with respect to the omitted portions.
332c82a5815a7f2fcabac7c5c1a92485.pdf	effective_date jurisdiction party term	EX-99.9 11 d429384dex999.htm CONFIDENTIALITY AGREEMENT\nEXHIBIT 99.9\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of January 11, 2012, between OPNET Technologies, Inc., a\nDelaware corporation (“OPNET”), and Riverbed Technology, Inc. (“RIVERBED”).\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving OPNET and RIVERBED (referred to\ncollectively as the “Parties” and individually as a “Party”), each Party has either requested or may request access to certain non-public information\nregarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement\nas the “Provider”; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient.”) This Agreement\nsets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 4 below, neither the Recipient nor any of the\nRecipient’s Representatives (as defined in Section 14 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 14 below).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct\non the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nactions reasonably necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential\nInformation.\n2. Contact Persons. Any request by RIVERBED or any of its Representatives to review any of OPNET’s Confidential Information must be\ndirected to OPNET’s representatives from Lazard, Marc A. Cohen, Alain J. Cohen, Mel Wesley, or Dennis McCoy, or as otherwise authorized by the\nOPNET. Neither RIVERBED nor any of its Representatives will contact or otherwise communicate with any other Representative of OPNET in\nconnection with a possible negotiated transaction without the prior written authorization of OPNET.\n3. No Representations by Provider. The Provider will have the exclusive authority to decide what Confidential Information (if any) of the\nProvider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of its Representatives has made or is making\nany representation or warranty, express or implied, as to the accuracy or completeness of any of the Provider’s Confidential Information, and neither\nthe Provider nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s\nRepresentatives on any basis (including, without limitation, in contract, tort or under United States federal or state\nsecurities laws or otherwise) relating to or resulting from the use of any of the Provider ’s Confidential Information or\nany inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are\nincluded in any final definitive written agreement that provides for the consummation of a negotiated transaction\nbetween the Parties and is validly executed on behalf of the Parties (a “Definitive Agreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient’s disclosure thereof;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient\nevaluate or negotiate a possible negotiated transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed\nto abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this\nAgreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process.\n(b) If prior to disclosing certain specific Confidential Information, the Provider delivers to the Recipient a written notice stating that the\ncertain Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient, then, notwithstanding anything\nto the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential\nInformation to any other Representative of the Recipient.\n(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid\nlegal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with\nwritten notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The\nRecipient and its Representatives will reasonably cooperate with the Provider and the Provider’s Representatives in any attempt by the Provider to\nobtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other\nremedy in connection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose\nsuch Confidential Information to the extent legally required; provided, however, that the Recipient and its Representatives will use their reasonable\nbest efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.\n5. Return of Confidential Information. Upon the Provider’s request, the Recipient and its Representatives will promptly deliver to the\nProvider, or at the Recipient’s election, destroy any of Provider’s Confidential Information (and all copies thereof) obtained or possessed by the\nRecipient or any of its Representatives; provided, however, that, in the event Recipient and its Representatives elect to destroy such Confidential\nInformation, the Recipient shall deliver to Provider a certificate confirming such destruction. Notwithstanding the foregoing, the Recipient and its\nRepresentatives may retain copies of the Confidential Information to the extent that such retention is required to demonstrate compliance with\napplicable law or governmental rule or regulation, to the extent included in any board or executive documents relating to the proposed business\nrelationship, and in its archives for backup purposes subject to the confidentiality provisions of this Agreement. Notwithstanding the delivery to the\nProvider (or the destruction or retention by the Recipient or its Representatives) of Confidential Information of the Provider pursuant to this\nSection 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other respective obligations under\nthis Agreement and shall not access such information for any purpose other than to destroy or delete it or as may be required by applicable law or\ngovernmental rule or regulation.\n6. Authority to Disclose Confidential Information; Warranty Disclaimer. Each Party represents that it has the legal right to possess and\ndisclose any Confidential Information disclosed hereunder. The Parties make no express or implied representation or warranty as to the accuracy or\ncompleteness of any of the information furnished to each other or their respective Representatives pursuant hereto. Neither Party nor any of their\nRepresentatives shall have any liability to the other Party or its Representatives relating to or arising from reliance upon the accuracy of any\ninformation or any errors or omissions therein. For purposes of this Section 6, “information” is deemed to include all information furnished by a\nParty or its Representatives to the other Party or its Representatives, regardless of whether such information constitutes “Confidential Information”\nas defined in Section 12. Further, nothing in this Agreement shall be construed as prohibiting or restricting either party from independently\ndeveloping, acquiring, and marketing products, services, and other materials, which are similar to or competitive in any geographic area and in any\nform with the other party’s product(s) or service(s) so long as such party is not in breach of its confidentiality obligations and restrictions of use of\nConfidential Information as set forth in this Agreement.\n7. No Prohibition on Independent Development; Use of Residuals. The terms of this Agreement shall not be construed to limit either\nParty’s right to independently develop or acquire products without use of the other Party’s Confidential Information. Further, the recipient Party shall\nbe free to use for any purpose the residuals resulting from access to or work with the Confidential Information of the disclosing Party, provided that\nthe recipient Party shall not disclose the Confidential Information except as expressly permitted under the terms of this Agreement. The term\n“residuals” means information in intangible form, which is retained in the unaided memory of persons who have had access to the Confidential\nInformation, including ideas, concepts, know-how or techniques contained therein. The recipient Party shall not have any obligation to limit or\nrestrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals, however, this Section shall not be deemed\nto grant to the recipient Party a license under the disclosing Party’s copyrights or patents.\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems\nappropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process\nwithout giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s\nRepresentatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any time.\nEach Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after the date of\nthis Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any\nother interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising\nout of or relating to any transaction or proposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended\nexcept by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision\nor provisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such\nParty or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly,\neach Party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of\nthis Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above will not be deemed to be the\nexclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In\nthe event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its Representatives has\nbreached this Agreement, such Party will be liable for, and will pay to the other Party and the other Party’s Representatives, the reasonable legal fees\nincurred by the other Party and the other Party’s Representatives in connection with such litigation (including any appeal relating thereto).\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or\nproceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or\nproceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and\nunconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or\nproceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought\nin an inconvenient forum.\n12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast\nor projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has at any time been made available to\nthe Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly\nupon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms of any such transaction.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of\nthe Recipient’s Representatives by or\non behalf of the Provider or any of the Provider ’s Representatives, provided that the source of such information was not\nand is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or\nto any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of\nconfidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential\nInformation and without reference to or use of Confidential Information.\n13. Trading in Securities. The Recipient acknowledges and agrees that it is aware (and that the Recipient’s Representatives are aware or will\nbe advised by the Recipient) that Confidential Information being furnished by the Provider contains material, non-public information regarding the\nProvider and that the United States securities laws prohibit any Person who has such material, non-public information from purchasing or selling\nsecurities of the Provider on the basis of such information or from communicating such information to any Person under circumstances in which it is\nreasonably foreseeable that such Person is likely to purchase or sell such securities on the basis of such information.\n14. Miscellaneous.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary\nof such Party or (ii) an officer, director, employee, partner, attorney, advisor, accountant, or agent of such Party or of any of such Party’s subsidiaries\n(excluding if Recipient is a private equity fund or similar fund, any portfolio company). A Party’s Representatives will not include any potential\nfinancing sources, unless OPNET consents in writing to a specific financing source becoming a Representative and the specific financing source\nenters into a separate confidentiality agreement with OPNET.\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any\nother situation or in any other jurisdiction.\n(e) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider\nis not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any\npatent application containing any claim to any subject matter derived from the Confidential Information of the Provider.\n(f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of\ninterest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual\ndesire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality\nof any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the\nattorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection\nthereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the\nfullest extent possible, the applicability of all such privileges or doctrines.\n(g) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(h) This Agreement shall continue in full force and effect for a period of three years from the effective date of this Agreement. This\nAgreement may be terminated by either party at any time upon ten (10) days written notice to the other party. The termination of this Agreement\nshall not relieve the Recipient of the obligations imposed by Sections 1, 4 5, 9 through 14 inclusive of this Agreement which shall survive any such\ntermination and continue for a period of three (3) years from the date of execution of this Agreement.. Nothing herein is intended to limit or abridge\nthe protection of trade secrets under applicable trade secrets law, and the protection of trade secrets by the Recipient shall be maintained as such until\nthey fall into the public domain.\n(i) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any products\nutilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.\n(j) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related\nhereto, including legal notices, shall be in the English language only.\n(k) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission or by\nfacsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.\nThe parties have caused this Agreement to be executed as of January 11, 2012.\nOPNET TECHNOLOGIES, INC.\nRIVERBED TECHNOLOGY, INC.\nBy:\n/s/ Dennis R. McCoy\nBy:\n/s/ Ryan Damon\nTitle:\nChief Legal Officer\nTitle:\nRyan Damon\nVice President\nAddress: 7255 Woodmont Avenue\nBethesda, MD 20814\nAssociate General Counsel\nAddress: 199 Fremont St.\nSan Francisco, CA 94105\nADDENDUM TO CONFIDENTIALITY AGREEMENT\nThis Addendum (“Addendum”) to the Confidentiality Agreement, dated as of November 13, 2012 (“Addendum Effective Date”), is made part of and\nincorporated by reference into the Confidentiality Agreement, dated as of January 11, 2012 (the “NDA”), between OPNET Technologies, Inc.\n(“OPNET”) and Riverbed Technology, Inc. (“Riverbed”). All capitalized terms used in this Addendum that are not defined herein shall have the\nmeaning given to them in the NDA.\n1. As of the Addendum Effective Date, neither Riverbed nor any of Riverbed’s Representatives shall disclose to any Person, including any\nRepresentative of Riverbed, any Confidential Information disclosed by OPNET, other than to the designated Representatives of Riverbed set forth\nfrom time to time on Exhibit A hereto (collectively, the “Riverbed Integration Team”); provided, members of the Riverbed Integration Team may\nshare an aggregated summary of relevant information (“Summary Information”) with Representatives of Riverbed who are not members of the\nRiverbed Integration Team, only after such Summary Information is reviewed and agreed to by OPNET’s outside antitrust counsel on behalf of\nOPNET. Notwithstanding anything to the contrary contained herein, at any time, or from time to time, Riverbed may designate additional\nRepresentatives of Riverbed as members of the Riverbed Integration Team by delivery of a revised Exhibit A to OPNET.\n2. As of the Addendum Effective Date, neither OPNET nor any of OPNET’s Representatives shall disclose to any Person, including any\nRepresentative of OPNET, any Confidential Information disclosed by Riverbed, other than to the designated Representatives of OPNET set forth\nfrom time to time on Exhibit B hereto (the “OPNET Integration Team”); provided, members of the OPNET Integration Team may share Summary\nInformation with Representatives of OPNET who are not members of the OPNET Integration Team, only after such Summary Information is\nreviewed and agreed to by Riverbed’s outside antitrust counsel on behalf of Riverbed. Notwithstanding anything to the contrary contained herein, at\nany time, or from time to time, OPNET may designate additional Representatives of OPNET as members of the OPNET Integration Team by\ndelivery of a revised Exhibit B to Riverbed.\n3. Each of OPNET and Riverbed hereby agree that any Confidential Information furnished to it will be used on and after the Addendum\nEffective Date only for the sole and limited purpose of integration planning and for no other purpose, other than in compliance with Section 2 or\nSection 3, as applicable, of this Addendum.\n4. This Addendum to the NDA shall be binding upon all signatories until the earlier to occur of: (a) the period of and as specified in the NDA;\nor (b) the effective time of the merger of Acquisition Sub with and into OPNET pursuant to the Merger Agreement.\n[Remainder of page left intentionally blank]\nThe parties have caused this Addendum to Confidentially Agreement to be executed as of the date first written above.\nRIVERBED TECHNOLOGY, INC.\nBy:\n/s/ Jerry M. Kennelly\nName: Jerry M. Kennelly\nTitle: Chairman and Chief Executive Officer\nACKNOWLEDGED AND AGREED:\nOPNET TECHNOLOGIES, INC.\nBy:\n/s/ Marc A. Cohen\nName: Marc A. Cohen\nTitle: Chairman and Chief Executive Officer	EX-99.9 11 d429384dex999.htm CONFIDENTIALITY AGREEMENT\nEXHIBIT 99.9\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of January 11, 2012, between OPNET Technologies, Inc., a\nDelaware corporation (“OPNET?”), and Riverbed Technology, Inc. (“RIVERBED”).\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving OPNET and RIVERBED (referred to\ncollectively as the “Parties” and individually as a “Party”), each Party has either requested or may request access to certain non-public information\nregarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement\nas the “Provider”; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient.”) This Agreement\nsets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 4 below, neither the Recipient nor any of the\nRecipient’s Representatives (as defined in Section 14 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 14 below).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct\non the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nactions reasonably necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential\nInformation.\n2. Contact Persons. Any request by RIVERBED or any of its Representatives to review any of OPNET’s Confidential Information must be\ndirected to OPNET’s representatives from Lazard, Marc A. Cohen, Alain J. Cohen, Mel Wesley, or Dennis McCoy, or as otherwise authorized by the\nOPNET. Neither RIVERBED nor any of its Representatives will contact or otherwise communicate with any other Representative of OPNET in\nconnection with a possible negotiated transaction without the prior written authorization of OPNET.\n3. No Representations by Provider. The Provider will have the exclusive authority to decide what Confidential Information (if any) of the\nProvider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of its Representatives has made or is making\nany representation or warranty, express or implied, as to the accuracy or completeness of any of the Provider’s Confidential Information, and neither\nthe Provider nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s\nRepresentatives on any basis (including, without limitation, in contract, tort or under United States federal or state\nsecurities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or\nany inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are\nincluded in any final definitive written agreement that provides for the consummation of a negotiated transaction\nbetween the Parties and is validly executed on behalf of the Parties (a “Definitive Agreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient’s disclosure thereof;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient\nevaluate or negotiate a possible negotiated transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed\nto abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this\nAgreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process.\n(b) If prior to disclosing certain specific Confidential Information, the Provider delivers to the Recipient a written notice stating that the\ncertain Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient, then, notwithstanding anything\nto the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential\nInformation to any other Representative of the Recipient.\n(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid\nlegal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with\nwritten notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The\nRecipient and its Representatives will reasonably cooperate with the Provider and the Provider’s Representatives in any attempt by the Provider to\nobtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other\nremedy in connection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose\nsuch Confidential Information to the extent legally required; provided, however, that the Recipient and its Representatives will use their reasonable\nbest efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.\n5. Return of Confidential Information. Upon the Provider’s request, the Recipient and its Representatives will promptly deliver to the\nProvider, or at the Recipient’s election, destroy any of Provider’s Confidential Information (and all copies thereof) obtained or possessed by the\nRecipient or any of its Representatives; provided, however, that, in the event Recipient and its Representatives elect to destroy such Confidential\nInformation, the Recipient shall deliver to Provider a certificate confirming such destruction. Notwithstanding the foregoing, the Recipient and its\nRepresentatives may retain copies of the Confidential Information to the extent that such retention is required to demonstrate compliance with\napplicable law or governmental rule or regulation, to the extent included in any board or executive documents relating to the proposed business\nrelationship, and in its archives for backup purposes subject to the confidentiality provisions of this Agreement. Notwithstanding the delivery to the\nProvider (or the destruction or retention by the Recipient or its Representatives) of Confidential Information of the Provider pursuant to this\nSection 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other respective obligations under\nthis Agreement and shall not access such information for any purpose other than to destroy or delete it or as may be required by applicable law or\ngovernmental rule or regulation.\n6. Authority to Disclose Confidential Information; Warranty Disclaimer. Each Party represents that it has the legal right to possess and\ndisclose any Confidential Information disclosed hereunder. The Parties make no express or implied representation or warranty as to the accuracy or\ncompleteness of any of the information furnished to each other or their respective Representatives pursuant hereto. Neither Party nor any of their\nRepresentatives shall have any liability to the other Party or its Representatives relating to or arising from reliance upon the accuracy of any\ninformation or any errors or omissions therein. For purposes of this Section 6, “information” is deemed to include all information furnished by a\nParty or its Representatives to the other Party or its Representatives, regardless of whether such information constitutes “Confidential Information”\nas defined in Section 12. Further, nothing in this Agreement shall be construed as prohibiting or restricting either party from independently\ndeveloping, acquiring, and marketing products, services, and other materials, which are similar to or competitive in any geographic area and in any\nform with the other party’s product(s) or service(s) so long as such party is not in breach of its confidentiality obligations and restrictions of use of\nConfidential Information as set forth in this Agreement.\n7. No Prohibition on Independent Development; Use of Residuals. The terms of this Agreement shall not be construed to limit either\nParty’s right to independently develop or acquire products without use of the other Party’s Confidential Information. Further, the recipient Party shall\nbe free to use for any purpose the residuals resulting from access to or work with the Confidential Information of the disclosing Party, provided that\nthe recipient Party shall not disclose the Confidential Information except as expressly permitted under the terms of this Agreement. The term\n“residuals” means information in intangible form, which is retained in the unaided memory of persons who have had access to the Confidential\nInformation, including ideas, concepts, know-how or techniques contained therein. The recipient Party shall not have any obligation to limit or\nrestrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals, however, this Section shall not be deemed\nto grant to the recipient Party a license under the disclosing Party’s copyrights or patents.\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems\nappropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process\nwithout giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s\nRepresentatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any time.\nEach Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after the date of\nthis Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any\nother interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising\nout of or relating to any transaction or proposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended\nexcept by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision\nor provisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such\nParty or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly,\neach Party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of\nthis Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above will not be deemed to be the\nexclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In\nthe event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its Representatives has\nbreached this Agreement, such Party will be liable for, and will pay to the other Party and the other Party’s Representatives, the reasonable legal fees\nincurred by the other Party and the other Party’s Representatives in connection with such litigation (including any appeal relating thereto).\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or\nproceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or\nproceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and\nunconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or\nproceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought\nin an inconvenient forum.\n12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast\nor projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has at any time been made available to\nthe Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly\nupon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms of any such transaction.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of\nthe Recipient’s Representatives by or\non behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information was not\nand is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or\nto any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of\nconfidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential\nInformation and without reference to or use of Confidential Information.\n13. Trading in Securities. The Recipient acknowledges and agrees that it is aware (and that the Recipient’s Representatives are aware or will\nbe advised by the Recipient) that Confidential Information being furnished by the Provider contains material, non-public information regarding the\nProvider and that the United States securities laws prohibit any Person who has such material, non-public information from purchasing or selling\nsecurities of the Provider on the basis of such information or from communicating such information to any Person under circumstances in which it is\nreasonably foreseeable that such Person is likely to purchase or sell such securities on the basis of such information.\n14. Miscellaneous.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary\nof such Party or (ii) an officer, director, employee, partner, attorney, advisor, accountant, or agent of such Party or of any of such Party’s subsidiaries\n(excluding if Recipient is a private equity fund or similar fund, any portfolio company). A Party’s Representatives will not include any potential\nfinancing sources, unless OPNET consents in writing to a specific financing source becoming a Representative and the specific financing source\nenters into a separate confidentiality agreement with OPNET.\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any\nother situation or in any other jurisdiction.\n(e) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider\nis not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any\npatent application containing any claim to any subject matter derived from the Confidential Information of the Provider.\n(f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of\ninterest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties” mutual\ndesire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality\nof any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the\nattorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection\nthereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the\nfullest extent possible, the applicability of all such privileges or doctrines.\n(g) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(h) This Agreement shall continue in full force and effect for a period of three years from the effective date of this Agreement. This\nAgreement may be terminated by either party at any time upon ten (10) days written notice to the other party. The termination of this Agreement\nshall not relieve the Recipient of the obligations imposed by Sections 1, 4 5, 9 through 14 inclusive of this Agreement which shall survive any such\ntermination and continue for a period of three (3) years from the date of execution of this Agreement.. Nothing herein is intended to limit or abridge\nthe protection of trade secrets under applicable trade secrets law, and the protection of trade secrets by the Recipient shall be maintained as such until\nthey fall into the public domain.\n(i) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any products\nutilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.\n(j) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related\nhereto, including legal notices, shall be in the English language only.\n(k) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission or by\nfacsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.\nThe parties have caused this Agreement to be executed as of January 11, 2012.\nOPNET TECHNOLOGIES, INC. RIVERBED TECHNOLOGY, INC.\nBy: /s/ Dennis R. McCoy By: /s/ Ryan Damon\nTitle: Chief Legal Officer Title: Ryan Damon\nVice President\nAddress: 7255 Woodmont Avenue Associate General Counsel\nBethesda, MD 20814\nAddress: 199 Fremont St.\nSan Francisco, CA 94105\nADDENDUM TO CONFIDENTIALITY AGREEMENT\nThis Addendum (“Addendum”) to the Confidentiality Agreement, dated as of November 13, 2012 (“Addendum Effective Date”), is made part of and\nincorporated by reference into the Confidentiality Agreement, dated as of January 11, 2012 (the “NDA”), between OPNET Technologies, Inc.\n(“OPNET?”) and Riverbed Technology, Inc. (“Riverbed”). All capitalized terms used in this Addendum that are not defined herein shall have the\nmeaning given to them in the NDA.\n1. As of the Addendum Effective Date, neither Riverbed nor any of Riverbed’s Representatives shall disclose to any Person, including any\nRepresentative of Riverbed, any Confidential Information disclosed by OPNET, other than to the designated Representatives of Riverbed set forth\nfrom time to time on Exhibit A hereto (collectively, the “Riverbed Integration Team”); provided, members of the Riverbed Integration Team may\nshare an aggregated summary of relevant information (“Summary Information”) with Representatives of Riverbed who are not members of the\nRiverbed Integration Team, only after such Summary Information is reviewed and agreed to by OPNET’s outside antitrust counsel on behalf of\nOPNET. Notwithstanding anything to the contrary contained herein, at any time, or from time to time, Riverbed may designate additional\nRepresentatives of Riverbed as members of the Riverbed Integration Team by delivery of a revised Exhibit A to OPNET.\n \n2. As of the Addendum Effective Date, neither OPNET nor any of OPNET’s Representatives shall disclose to any Person, including any\nRepresentative of OPNET, any Confidential Information disclosed by Riverbed, other than to the designated Representatives of OPNET set forth\nfrom time to time on Exhibit B hereto (the “OPNET Integration Team”); provided, members of the OPNET Integration Team may share Summary\nInformation with Representatives of OPNET who are not members of the OPNET Integration Team, only after such Summary Information is\nreviewed and agreed to by Riverbed’s outside antitrust counsel on behalf of Riverbed. Notwithstanding anything to the contrary contained herein, at\nany time, or from time to time, OPNET may designate additional Representatives of OPNET as members of the OPNET Integration Team by\ndelivery of a revised Exhibit B to Riverbed.\n3. Each of OPNET and Riverbed hereby agree that any Confidential Information furnished to it will be used on and after the Addendum\nEffective Date only for the sole and limited purpose of integration planning and for no other purpose, other than in compliance with Section 2 or\nSection 3, as applicable, of this Addendum.\n4. This Addendum to the NDA shall be binding upon all signatories until the earlier to occur of: (a) the period of and as specified in the NDA;\nor (b) the effective time of the merger of Acquisition Sub with and into OPNET pursuant to the Merger Agreement.\n[Remainder of page left intentionally blank]\nThe parties have caused this Addendum to Confidentially Agreement to be executed as of the date first written above.\nRIVERBED TECHNOLOGY, INC.\nBy: /s/ Jerry M. Kennelly\nName: Jerry M. Kennelly\nTitle:  Chairman and Chief Executive Officer\nACKNOWLEDGED AND AGREED:\nOPNET TECHNOLOGIES, INC.\nBy: /s/ Marc A. Cohen\nName: Marc A. Cohen\nTitle:  Chairman and Chief Executive Officer	EX-99.9 11 d429384dex999.htm CONFIDENTIALITY AGREEMENT\nEXHIBIT 99.9\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT ("Agreement") is being entered into as of January 11, 2012, between OPNET Technologies, Inc., a\nDelaware corporation ("OPNET"), and Riverbed Technology, Inc. ("RIVERBED").\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving OPNET and RIVERBED (referred to\ncollectively as the "Parties" and individually as a "Party"), each Party has either requested or may request access to certain non-public information\nregarding the other Party and the other Party's subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement\nas\nthe\n"Provider"; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the "Recipient.") This Agreement\nsets forth the Parties' obligations regarding the use and disclosure of such information and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 4 below, neither the Recipient nor any of the\nRecipient's Representatives (as defined in Section 14 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider's Confidential Information (as defined in Section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider's Confidential Information to any other Person (as defined in Section 14 below).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct\non the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nactions reasonably necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider's Confidential\nInformation.\n2. Contact Persons. Any request by RIVERBED or any of its Representatives to review any of OPNET'S Confidential Information must be\ndirected to OPNET'S representatives from Lazard, Marc A. Cohen, Alain J. Cohen, Mel Wesley, or Dennis McCoy, or as otherwise authorized by the\nOPNET. Neither RIVERBED nor any of its Representatives will contact or otherwise communicate with any other Representative of OPNET in\nconnection with a possible negotiated transaction without the prior written authorization of OPNET.\n3. No Representations by Provider. The Provider will have the exclusive authority to decide what Confidential Information (if any) of the\nProvider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of its Representatives has made or is making\nany representation or warranty, express or implied, as to the accuracy or completeness of any of the Provider's Confidential Information,\nand\nneither\nthe Provider nor any of its Representatives will have any liability to the Recipient or to any of the Recipient's\nRepresentatives on any basis (including, without limitation, in contract, tort or under United States federal or state\nsecurities laws or otherwise) relating to or resulting from the use of any of the Provider's Confidential Information or\nany inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are\nincluded in any final definitive written agreement that provides for the consummation of a negotiated transaction\nbetween the Parties and is validly executed on behalf of the Parties (a "Definitive Agreement") will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient's disclosure thereof;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidentia Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient\nevaluate or negotiate a possible negotiated transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed\nto abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in\nthis\nAgreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmenta regulation or by valid legal process.\n(b) If prior to disclosing certain specific Confidential Information, the Provider delivers to the Recipient a written notice stating that the\ncertain\nConfidential Information of the Provider may be disclosed only to specified Representatives of the Recipient, then, notwithstanding anything\nto the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential\nInformation to any other Representative of the Recipient.\n(c) If the Recipient or any of the Recipient's Representatives is required by law or governmental regulation or by subpoena or other valid\nlegal\nprocess to disclose any of the Provider's Confidential Information to any Person, then the Recipient will promptly provide the Provider with\nwritten notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The\nRecipient and its Representatives will reasonably cooperate with the Provider and the Provider's Representatives in any attempt by the Provider\nto\nobtain\nany\nsuch\nprotective\norder\nor\nother\nremedy.\nIf\nthe\nProvider\nelects\nnot\nto\nseek,\nor\nis\nunsuccessful\nin\nobtaining,\nany\nsuch\nprotective\norder\nor\nother\nremedy in connection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose\nsuch Confidential Information to the extent legally required; provided, however, that the Recipient and its Representatives will use their reasonable\nbest efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.\n5. Return of Confidential Information. Upon the Provider's request, the Recipient and its Representatives will promptly deliver to the\nProvider, or at the Recipient's election, destroy any of Provider's Confidential Information (and all copies thereof) obtained or possessed by the\nRecipient or any of its Representatives; provided, however, that, in the event Recipient and its Representatives elect to destroy such Confidential\nInformation, the Recipient shall deliver to Provider a certificate confirming such destruction. Notwithstanding the foregoing, the Recipient and\nits\nRepresentatives may retain copies of the Confidential Information to the extent that such retention is required to demonstrate compliance with\napplicable law or governmental rule or regulation, to the extent included in any board or executive documents relating to the proposed business\nrelationship, and in its archives for backup purposes subject to the confidentiality provisions of this Agreement. Notwithstanding the delivery to\nthe\nProvider (or the destruction or retention by the Recipient or its Representatives) of Confidential Information of the Provider pursuant to this\nSection 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other respective obligations under\nthis Agreement and shall not access such information for any purpose other than to destroy or delete it or as may be required by applicable law or\ngovernmental rule or regulation.\n6. Authority to Disclose Confidential Information; Warranty Disclaimer. Each Party represents that it has the legal right to possess and\ndisclose any Confidential Information disclosed hereunder. The Parties make no express or implied representation or warranty as to the accuracy or\ncompleteness of any of the information furnished to each other or their respective Representatives pursuant hereto. Neither Party nor any of their\nRepresentatives shall have any liability to the other Party or its Representatives relating to or arising from reliance upon the accuracy of any\ninformation or any errors or omissions therein. For purposes of this Section 6, "information" is deemed to include all information furnished by\na\nParty or its Representatives to the other Party or its Representatives, regardless of whether such information constitutes "Confidentia Information"\nas defined in Section 12. Further, nothing in this Agreement shall be construed as prohibiting or restricting either party from independently\ndeveloping, acquiring, and marketing products, services, and other materials, which are similar to or competitive in any geographic area and in any\nform with the other party's product(s) or service(s) so long as such party is not in breach of its confidentiality obligations and restrictions\nof\nuse\nof\nConfidential Information as set forth in this Agreement.\n7. No Prohibition on Independent Development; Use of Residuals. The terms of this Agreement shall not be construed to limit either\nParty's right to independently develop or acquire products without use of the other Party's Confidential Information. Further, the recipient Party shall\nbe free to use for any purpose the residuals resulting from access to or work with the Confidential Information of the disclosing Party, provided\nthat\nthe recipient Party shall not disclose the Confidential Information except as expressly permitted under the terms of this Agreement. The term\n"residuals" means information in intangible form, which is retained in the unaided memory of persons who have had access to the Confidential\nInformation, including ideas, concepts, know-how or techniques contained therein. The recipient Party shall not have any obligation to limit or\nrestrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals, however, this Section shall not be\ndeemed\nto grant to the recipient Party a license under the disclosing Party's copyrights or patents.\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems\nappropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process\nwithout giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party's\nRepresentatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any time.\nEach\nParty recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after the date\nof\nthis Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any\nother interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party's Representatives arising\nout of or relating to any transaction or proposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended\nexcept by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision\nor provisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such\nParty or by any of such Party's Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly,\neach Party wil also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of\nthis Agreement by the other Party or any of the other Party's Representatives. The equitable remedies referred to above will not be deemed to be the\nexclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties.\nIn\nthe event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its Representatives\nhas\nbreached this Agreement, such Party will be liable for, and will pay to the other Party and the other Party's Representatives, the reasonable legal\nfees\nincurred by the other Party and the other Party's Representatives in connection with such litigation (including any appeal relating thereto).\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit\nor\nproceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit\nor\nproceeding\narising\nout\nof\nor\nrelating\nto\nthis\nAgreement\nin\nany\nstate\nor\nfederal\ncourt\nlocated\nin\nthe\nState\nof\nDelaware;\nand\n(d)\nirrevocably\nand\nunconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or\nproceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought\nin an inconvenient forum.\n12. Confidential Information. For purposes of this Agreement the Provider's "Confidential Information" will be deemed to include only the\nfollowing:\n(a)\nany\ninformation\n(including\nany\ntechnology,\nknow-how,\npatent\napplication,\ntest\nresult,\nresearch\nstudy,\nbusiness\nplan,\nbudget,\nforecast\nor projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has at any time been made available to\nthe Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly\nupon any information of the type referred to in clause "(a)" of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause "(a)" of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms of any such transaction.\nHowever, the Provider's "Confidential Information" will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient's Representatives;\n(ii) any information that was in the Recipient's possession prior to the time it was first made available to the Recipient or any of\nthe Recipient's Representatives by or\non behalf of the Provider or any of the Provider's Representatives, provided that the source of such information was not\nand is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or\nto any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany\nof the Provider's Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of\nconfidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential\nInformation and without reference to or use of Confidential Information.\n13. Trading in Securities. The Recipient acknowledges and agrees that it is aware (and that the Recipient's Representatives are aware or will\nbe advised by the Recipient) that Confidential Information being furnished by the Provider contains material, non-public information regarding the\nProvider and that the United States securities laws prohibit any Person who has such material, non-public information from purchasing or selling\nsecurities\nof\nthe\nProvider\non\nthe\nbasis\nof\nsuch\ninformation\nor\nfrom\ncommunicating\nsuch\ninformation\nto\nany\nPerson\nunder\ncircumstances\nin\nwhich\nit\nis\nreasonably foreseeable that such Person is likely to purchase or sell such securities on the basis of such information.\n14. Miscellaneous.\n(a) For purposes of this Agreement, a Party's "Representatives" will be deemed to include each Person that is or becomes (i) a subsidiary\nof such Party or (ii) an officer, director, employee, partner, attorney, advisor, accountant, or agent of such Party or of any of such Party's subsidiaries\n(excluding if Recipient is a private equity fund or similar fund, any portfolio company). A Party's Representatives will not include any potential\nfinancing sources, unless OPNET consents in writing to a specific financing source becoming a Representative and the specific financing source\nenters into a separate confidentiality agreement with OPNET.\n(b) The term "Person," as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any\nother situation or in any other jurisdiction.\n(e) By making Confidential Information or other information available to the Recipient or the Recipient's Representatives, the Provider\nis not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient's Representatives shall file any\npatent application containing any claim to any subject matter derived from the Confidential Information of the Provider.\n(f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of\ninterest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties' mutual\ndesire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality\nof any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the\nattorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled\nto\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection\nthereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the\nfullest extent possible, the applicability of all such privileges or doctrines.\n(g) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(h) This Agreement shall continue in full force and effect for a period of three years from the effective date of this Agreement. This\nAgreement may be terminated by either party at any time upon ten (10) days written notice to the other party. The termination of this Agreement\nshall not relieve the Recipient of the obligations imposed by Sections 1, 4 5, 9 through 14 inclusive of this Agreement which shall survive any such\ntermination and continue for a period of three (3) years from the date of execution of this Agreement.. Nothing herein is intended to limit or abridge\nthe protection of trade secrets under applicable trade secrets law, and the protection of trade secrets by the Recipient shall be maintained as such until\nthey fal into the public domain.\n(i) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any products\nutilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.\n(j) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related\nhereto, including legal notices, shall be in the English language only.\n(k) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission or by\nfacsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.\nThe parties have caused this Agreement to be executed as of January 11, 2012.\nOPNET TECHNOLOGIES, INC.\nRIVERBED TECHNOLOGY, INC.\nBy:\n/s/ Dennis R. McCoy\nBy:\n/s/ Ryan Damon\nTitle:\nChief Legal Officer\nTitle:\nRyan Damon\nVice President\nAddress: 7255 Woodmont Avenue\nAssociate General Counsel\nBethesda, MD 20814\nAddress: 199 Fremont St.\nSan Francisco, CA 94105\nADDENDUM TO CONFIDENTIALITY AGREEMENT\nThis Addendum ("Addendum") to the Confidentiality Agreement, dated as of November 13, 2012 ("Addendum Effective Date"), is made part of and\nincorporated by reference into the Confidentiality Agreement, dated as of January 11, 2012 (the "NDA"), between OPNET Technologies, Inc.\n("OPNET") and Riverbed Technology, Inc. ("Riverbed"). All capitalized terms used in this Addendum that are not defined herein shall have the\nmeaning given to them in the NDA.\n1. As of the Addendum Effective Date, neither Riverbed nor any of Riverbed's Representatives shall disclose to any Person, including any\nRepresentative of Riverbed, any Confidential Information disclosed by OPNET, other than to the designated Representatives of Riverbed set forth\nfrom time to time on Exhibit A hereto (collectively, the "Riverbed Integration Team"); provided, members of the Riverbed Integration Team may\nshare an aggregated summary of relevant information ("Summary Information") with Representatives of Riverbed who are not members of the\nRiverbed Integration Team, only after such Summary Information is reviewed and agreed to by OPNET's outside antitrust counsel on behalf of\nOPNET. Notwithstanding anything to the contrary contained herein, at any time, or from time to time, Riverbed may designate additional\nRepresentatives of Riverbed as members of the Riverbed Integration Team by delivery of a revised Exhibit A to OPNET.\n2. As of the Addendum Effective Date, neither OPNET nor any of OPNET'S Representatives shall disclose to any Person, including any\nRepresentative of OPNET, any Confidential Information disclosed by Riverbed, other than to the designated Representatives of OPNET set forth\nfrom time to time on Exhibit B hereto (the "OPNET Integration Team"); provided, members of the OPNET Integration Team may share Summary\nInformation with Representatives of OPNET who are not members of the OPNET Integration Team, only. after such Summary Information\nis\nreviewed and agreed to by Riverbed's outside antitrust counsel on behalf of Riverbed. Notwithstanding anything to the contrary contained herein, at\nany time, or from time to time, OPNET may designate additional Representatives of OPNET as members of the OPNET Integration Team by\ndelivery of a revised Exhibit B to Riverbed.\n3. Each of OPNET and Riverbed hereby agree that any Confidential Information furnished to it will be used on and after the Addendum\nEffective Date only for the sole and limited purpose of integration planning and for no other purpose, other than in compliance with Section 2 or\nSection 3, as applicable, of this Addendum.\n4. This Addendum to the NDA shall be binding upon all signatories until the earlier to occur of: (a) the period of and as specified in the NDA;\nor (b) the effective time of the merger of Acquisition Sub with and into OPNET pursuant to the Merger Agreement.\n[Remainder of page left intentionally blank]\nThe parties have caused this Addendum to Confidentially Agreement to be executed as of the date first written above.\nRIVERBED TECHNOLOGY, INC.\nBy:\n/s/ Jerry M. Kennelly\nName: Jerry M. Kennelly\nTitle:\nChairman and Chief Executive Officer\nACKNOWLEDGED AND AGREED:\nOPNET TECHNOLOGIES, INC.\nBy:\n/s/ Marc A. Cohen\nName: Marc A. Cohen\nTitle:\nChairman and Chief Executive Officer	EX-99.9 11 d429384dex999.htm CONFIDENTIALITY AGREEMENT\nEXHIBIT 99.9\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of January 11, 2012, between OPNET Technologies, Inc., a\nDelaware corporation (“OPNET”), and Riverbed Technology, Inc. (“RIVERBED”).\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving OPNET and RIVERBED (referred to\ncollectively as the “Parties” and individually as a “Party”), each Party has either requested or may request access to certain non-public information\nregarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement\nas the “Provider”; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient.”) This Agreement\nsets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 4 below, neither the Recipient nor any of the\nRecipient’s Representatives (as defined in Section 14 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 14 below).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct\non the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nactions reasonably necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential\nInformation.\n2. Contact Persons. Any request by RIVERBED or any of its Representatives to review any of OPNET’s Confidential Information must be\ndirected to OPNET’s representatives from Lazard, Marc A. Cohen, Alain J. Cohen, Mel Wesley, or Dennis McCoy, or as otherwise authorized by the\nOPNET. Neither RIVERBED nor any of its Representatives will contact or otherwise communicate with any other Representative of OPNET in\nconnection with a possible negotiated transaction without the prior written authorization of OPNET.\n3. No Representations by Provider. The Provider will have the exclusive authority to decide what Confidential Information (if any) of the\nProvider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of its Representatives has made or is making\nany representation or warranty, express or implied, as to the accuracy or completeness of any of the Provider’s Confidential Information, and neither\nthe Provider nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s\nRepresentatives on any basis (including, without limitation, in contract, tort or under United States federal or state\nsecurities laws or otherwise) relating to or resulting from the use of any of the Provider ’s Confidential Information or\nany inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are\nincluded in any final definitive written agreement that provides for the consummation of a negotiated transaction\nbetween the Parties and is validly executed on behalf of the Parties (a “Definitive Agreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient’s disclosure thereof;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient\nevaluate or negotiate a possible negotiated transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed\nto abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this\nAgreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process.\n(b) If prior to disclosing certain specific Confidential Information, the Provider delivers to the Recipient a written notice stating that the\ncertain Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient, then, notwithstanding anything\nto the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential\nInformation to any other Representative of the Recipient.\n(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid\nlegal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with\nwritten notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The\nRecipient and its Representatives will reasonably cooperate with the Provider and the Provider’s Representatives in any attempt by the Provider to\nobtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other\nremedy in connection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose\nsuch Confidential Information to the extent legally required; provided, however, that the Recipient and its Representatives will use their reasonable\nbest efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.\n5. Return of Confidential Information. Upon the Provider’s request, the Recipient and its Representatives will promptly deliver to the\nProvider, or at the Recipient’s election, destroy any of Provider’s Confidential Information (and all copies thereof) obtained or possessed by the\nRecipient or any of its Representatives; provided, however, that, in the event Recipient and its Representatives elect to destroy such Confidential\nInformation, the Recipient shall deliver to Provider a certificate confirming such destruction. Notwithstanding the foregoing, the Recipient and its\nRepresentatives may retain copies of the Confidential Information to the extent that such retention is required to demonstrate compliance with\napplicable law or governmental rule or regulation, to the extent included in any board or executive documents relating to the proposed business\nrelationship, and in its archives for backup purposes subject to the confidentiality provisions of this Agreement. Notwithstanding the delivery to the\nProvider (or the destruction or retention by the Recipient or its Representatives) of Confidential Information of the Provider pursuant to this\nSection 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other respective obligations under\nthis Agreement and shall not access such information for any purpose other than to destroy or delete it or as may be required by applicable law or\ngovernmental rule or regulation.\n6. Authority to Disclose Confidential Information; Warranty Disclaimer. Each Party represents that it has the legal right to possess and\ndisclose any Confidential Information disclosed hereunder. The Parties make no express or implied representation or warranty as to the accuracy or\ncompleteness of any of the information furnished to each other or their respective Representatives pursuant hereto. Neither Party nor any of their\nRepresentatives shall have any liability to the other Party or its Representatives relating to or arising from reliance upon the accuracy of any\ninformation or any errors or omissions therein. For purposes of this Section 6, “information” is deemed to include all information furnished by a\nParty or its Representatives to the other Party or its Representatives, regardless of whether such information constitutes “Confidential Information”\nas defined in Section 12. Further, nothing in this Agreement shall be construed as prohibiting or restricting either party from independently\ndeveloping, acquiring, and marketing products, services, and other materials, which are similar to or competitive in any geographic area and in any\nform with the other party’s product(s) or service(s) so long as such party is not in breach of its confidentiality obligations and restrictions of use of\nConfidential Information as set forth in this Agreement.\n7. No Prohibition on Independent Development; Use of Residuals. The terms of this Agreement shall not be construed to limit either\nParty’s right to independently develop or acquire products without use of the other Party’s Confidential Information. Further, the recipient Party shall\nbe free to use for any purpose the residuals resulting from access to or work with the Confidential Information of the disclosing Party, provided that\nthe recipient Party shall not disclose the Confidential Information except as expressly permitted under the terms of this Agreement. The term\n“residuals” means information in intangible form, which is retained in the unaided memory of persons who have had access to the Confidential\nInformation, including ideas, concepts, know-how or techniques contained therein. The recipient Party shall not have any obligation to limit or\nrestrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals, however, this Section shall not be deemed\nto grant to the recipient Party a license under the disclosing Party’s copyrights or patents.\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems\nappropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process\nwithout giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s\nRepresentatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any time.\nEach Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after the date of\nthis Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any\nother interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising\nout of or relating to any transaction or proposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended\nexcept by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision\nor provisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such\nParty or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly,\neach Party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of\nthis Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above will not be deemed to be the\nexclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In\nthe event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its Representatives has\nbreached this Agreement, such Party will be liable for, and will pay to the other Party and the other Party’s Representatives, the reasonable legal fees\nincurred by the other Party and the other Party’s Representatives in connection with such litigation (including any appeal relating thereto).\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or\nproceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or\nproceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and\nunconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or\nproceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought\nin an inconvenient forum.\n12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast\nor projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has at any time been made available to\nthe Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly\nupon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms of any such transaction.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of\nthe Recipient’s Representatives by or\non behalf of the Provider or any of the Provider ’s Representatives, provided that the source of such information was not\nand is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or\nto any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of\nconfidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential\nInformation and without reference to or use of Confidential Information.\n13. Trading in Securities. The Recipient acknowledges and agrees that it is aware (and that the Recipient’s Representatives are aware or will\nbe advised by the Recipient) that Confidential Information being furnished by the Provider contains material, non-public information regarding the\nProvider and that the United States securities laws prohibit any Person who has such material, non-public information from purchasing or selling\nsecurities of the Provider on the basis of such information or from communicating such information to any Person under circumstances in which it is\nreasonably foreseeable that such Person is likely to purchase or sell such securities on the basis of such information.\n14. Miscellaneous.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary\nof such Party or (ii) an officer, director, employee, partner, attorney, advisor, accountant, or agent of such Party or of any of such Party’s subsidiaries\n(excluding if Recipient is a private equity fund or similar fund, any portfolio company). A Party’s Representatives will not include any potential\nfinancing sources, unless OPNET consents in writing to a specific financing source becoming a Representative and the specific financing source\nenters into a separate confidentiality agreement with OPNET.\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any\nother situation or in any other jurisdiction.\n(e) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider\nis not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any\npatent application containing any claim to any subject matter derived from the Confidential Information of the Provider.\n(f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of\ninterest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual\ndesire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality\nof any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the\nattorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection\nthereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the\nfullest extent possible, the applicability of all such privileges or doctrines.\n(g) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(h) This Agreement shall continue in full force and effect for a period of three years from the effective date of this Agreement. This\nAgreement may be terminated by either party at any time upon ten (10) days written notice to the other party. The termination of this Agreement\nshall not relieve the Recipient of the obligations imposed by Sections 1, 4 5, 9 through 14 inclusive of this Agreement which shall survive any such\ntermination and continue for a period of three (3) years from the date of execution of this Agreement.. Nothing herein is intended to limit or abridge\nthe protection of trade secrets under applicable trade secrets law, and the protection of trade secrets by the Recipient shall be maintained as such until\nthey fall into the public domain.\n(i) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any products\nutilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.\n(j) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related\nhereto, including legal notices, shall be in the English language only.\n(k) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission or by\nfacsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.\nThe parties have caused this Agreement to be executed as of January 11, 2012.\nOPNET TECHNOLOGIES, INC.\nRIVERBED TECHNOLOGY, INC.\nBy:\n/s/ Dennis R. McCoy\nBy:\n/s/ Ryan Damon\nTitle:\nChief Legal Officer\nTitle:\nRyan Damon\nVice President\nAddress: 7255 Woodmont Avenue\nBethesda, MD 20814\nAssociate General Counsel\nAddress: 199 Fremont St.\nSan Francisco, CA 94105\nADDENDUM TO CONFIDENTIALITY AGREEMENT\nThis Addendum (“Addendum”) to the Confidentiality Agreement, dated as of November 13, 2012 (“Addendum Effective Date”), is made part of and\nincorporated by reference into the Confidentiality Agreement, dated as of January 11, 2012 (the “NDA”), between OPNET Technologies, Inc.\n(“OPNET”) and Riverbed Technology, Inc. (“Riverbed”). All capitalized terms used in this Addendum that are not defined herein shall have the\nmeaning given to them in the NDA.\n1. As of the Addendum Effective Date, neither Riverbed nor any of Riverbed’s Representatives shall disclose to any Person, including any\nRepresentative of Riverbed, any Confidential Information disclosed by OPNET, other than to the designated Representatives of Riverbed set forth\nfrom time to time on Exhibit A hereto (collectively, the “Riverbed Integration Team”); provided, members of the Riverbed Integration Team may\nshare an aggregated summary of relevant information (“Summary Information”) with Representatives of Riverbed who are not members of the\nRiverbed Integration Team, only after such Summary Information is reviewed and agreed to by OPNET’s outside antitrust counsel on behalf of\nOPNET. Notwithstanding anything to the contrary contained herein, at any time, or from time to time, Riverbed may designate additional\nRepresentatives of Riverbed as members of the Riverbed Integration Team by delivery of a revised Exhibit A to OPNET.\n2. As of the Addendum Effective Date, neither OPNET nor any of OPNET’s Representatives shall disclose to any Person, including any\nRepresentative of OPNET, any Confidential Information disclosed by Riverbed, other than to the designated Representatives of OPNET set forth\nfrom time to time on Exhibit B hereto (the “OPNET Integration Team”); provided, members of the OPNET Integration Team may share Summary\nInformation with Representatives of OPNET who are not members of the OPNET Integration Team, only after such Summary Information is\nreviewed and agreed to by Riverbed’s outside antitrust counsel on behalf of Riverbed. Notwithstanding anything to the contrary contained herein, at\nany time, or from time to time, OPNET may designate additional Representatives of OPNET as members of the OPNET Integration Team by\ndelivery of a revised Exhibit B to Riverbed.\n3. Each of OPNET and Riverbed hereby agree that any Confidential Information furnished to it will be used on and after the Addendum\nEffective Date only for the sole and limited purpose of integration planning and for no other purpose, other than in compliance with Section 2 or\nSection 3, as applicable, of this Addendum.\n4. This Addendum to the NDA shall be binding upon all signatories until the earlier to occur of: (a) the period of and as specified in the NDA;\nor (b) the effective time of the merger of Acquisition Sub with and into OPNET pursuant to the Merger Agreement.\n[Remainder of page left intentionally blank]\nThe parties have caused this Addendum to Confidentially Agreement to be executed as of the date first written above.\nRIVERBED TECHNOLOGY, INC.\nBy:\n/s/ Jerry M. Kennelly\nName: Jerry M. Kennelly\nTitle: Chairman and Chief Executive Officer\nACKNOWLEDGED AND AGREED:\nOPNET TECHNOLOGIES, INC.\nBy:\n/s/ Marc A. Cohen\nName: Marc A. Cohen\nTitle: Chairman and Chief Executive Officer
3855a47679b01009b03afd3c25fda685.pdf	effective_date jurisdiction party term	EX-10 2 kksconsultingagreementclean1.htm CONSULTING AND CONFIDENTIALITY AGREEMENT WITH KKS VENTURE\nMANAGEMENT, INC.\nCONSULTING AND CONFIDENTIALITY AGREEMENT\nTHIS CONSULTING AGREEMENT (hereinafter the “Agreement”), made and entered\ninto this 25th day of October, 2007, by and between KKS Venture Management Inc. and\nAlfonso Knoll (hereinafter “Consultants”), an independent contractor with a business\naddress of 240 Main Street, Denver PA 17517, and Sanguine Corporation a Nevada\ncorporation (hereinafter “the Company”), (hereinafter together referred to as “the\nParties”).\nThis will confirm the agreement between the Company and the Consultants this 25th day\nof October 2007 as follows:\nWhereas, The Company agrees to engage the Consultants and Consultants agree to\nprovide consulting services to the company for a period of one (1) year; and\nNOW, THEREFORE, in consideration of the mutual covenants set forth in this\nagreement, the Parties agree as follows:\n1. Consulting Services:\nFor a period of twelve (12) months from the date first signed above, Consultants\nwill hold themselves available to provide investor relations services to Company\nas may be requested by it, provided Consultants shall determine in their sole\ndiscretion the time and manner of providing such services. Consultant agrees to\nexercise its best efforts to provide the following services to Company:\n· Help Company in gaining market awareness and explore the possibilities of\na European listing; and\n· Help Company by recommending a capitalization restructure to facilitate an\noffering of $(5,000,000); and\n·\nHelp when appropriate, approaching a larger underwriter to structure a\nsecondary offering for the build out of the Company brand and increase\nthe marking budget.\n·\nForemost, provide such managerial help and consultation as to foster the\ngrowth and performance of the Company.\nConsultants will remain available to provide such services during the term of this\nagreement and Company will continue to compensate Consultants hereunder\nwhether or not it is a subsidiary of, or stockholder of, Company under separate\narrangement. The Consultants shall at all times be independent contractors to the\nCompany and shall not represent or be represented as an employee, partner,\nofficer, director or affiliate of the Company. This Agreement shall automatically\nrenew on a yearly basis on the last day of the twelfth month following execution\n1\nCompany Initials /s/TCD\nConsultant Initials /s/ACK\nof this Agreement each year on the same terms until either party gives written\nnotice of its intent not to renew. Said Notice shall be given at least 1 month\nbefore the renewal date.\nSubject to the terms and conditions of this Agreement, the Consultants accept this\nappointment as an independent contractor to the Company. In no event shall the\nConsultant be obligated to participate in and/or purchase Private Equity and/or\nCredit and Debt Facilities for its own account or for the accounts of any other\nentities or individuals.\n2. Compensation:\nIn consideration of the consulting services of this agreement, Company agrees to\npay Consultant the following:\n· Upon signing this agreement Company will pay to Consultant, three million\n(3,000,000) common shares, in Company with “piggy-back” registration\nrights; and\n·\n675,000 free trading SGNC common shares through a grant from the\nCompany’s Stock Option Plan to Alfonso Knoll personally under a\nseparate Letter Agreement of even date; and\n· After successful completion of a minimum of first $500,000 financing has\nbeen realized by the Company, the Company will pay Consultant Twenty\nThousand $20,000 per month so long as the company can afford to pay it.\nConsultants hereby agree that all payments will be made directly to KKS Venture\nManagement Inc.. The recipient here, KKS Venture Management Inc., LLC is an\nentity in which all three of the equity owners are accredited investors, as that\nphrase is defined in the Act.\n3. Termination; Accelerated Payment:\nIn the event of Consultant’s failure to perform or Company’s failure to pay\nConsultant the non-breaching party may terminate this agreement and any\noutstanding claims shall refer to a panel of Arbitrators.\n4. Confidentiality:\nDuring the course of this agreement, it is likely that each party will come into\ncontact with confidential information crucial to the operation of each parties\nbusiness. Such confidential information may include, without limitation: (i)\nbusiness and financial information, (ii) business methods and practices, (iii)\ntechnology and technological strategies, (iv) marketing strategies and (v) other\nsuch information each Party deems as “Confidential Information”. By their\nsignature below, each party agrees to keep in strict confidence all non-public\ninformation so long as it remains non-public, except to the extent disclosure is\nrequired by law,\n2\nCompany Initials /s/TCD\nConsultant Initials /s/ACK\nrequested by any governmental or regulatory agency or body or to the extent that\nConsultants must disclose information to lenders and equity partners to obtain\nfinancing. Both parties agree not to use the confidential information disclosed to\nthem for their own benefit, or for the benefit of any party with which the\nConsultant or the Company is affiliated. If this agreement is terminated, each\nparty upon request will promptly return to the other party all documents,\ncontracts, records, or other information received by it that disclose or embody\nconfidential information of the other party.\n5. Covenant Not To Circumvent:\nIt is understood that the Consultants will be introducing the Company to equity,\ndebt and other financing parties along with potential purchasers of Company’s\nproduct or suite of products. The Company agrees that its employees, officers,\ndirectors or other consultants will not circumvent this agreement in an endeavor to\nemploy, tempt or cause any investment from Consultants contacts. The Company\nunderstands that such action would constitute a breach of this agreement and\nwould be harmful or damaging to the Consultants business; as a\nresult the\nConsultants would be owed treble damages payable forthwith in cash or kind in\nthe amount of ($100,000).\n6. Consents and Approvals\nBy their signature below, each party agrees they have been duly authorized to\nenter into and execute this agreement and have obtained the approval and consent\nof their respective Boards of Directors, and any other parties, which are\nappropriate or necessary for this agreement.\n7. Jurisdiction:\nThe agreements associated with this transaction will all be subject to\nPennsylvania law. Disputes will be resolved through the use of a nationally\nrecognized arbitration group. The location of any arbitration or legal proceeding\nwill be in the Berks County, Pennsylvania.\n8. Transfer:\nThis Agreement shall not be assigned by either party without the prior written\nconsent of the other party.\n9. Indemnity.\nCompany shall indemnify, defend and hold harmless Consultant from and against\nany and all losses incurred by Consultant which arise out of or result from\nmisrepresentation, breach of warranty or breach or non- fulfillment of any\ncovenant contained herein or Schedules annexed hereto or in any other documents\n3\nCompany Initials /s/TCD\nConsultant Initials /s/ACK\nor instruments furnished by Company pursuant hereto or in connection with this\nAgreement.\n10. Modifications:\nA modification or waiver of any of the provisions of this Agreement shall be\neffective only if made in writing and executed with the same formality as this\nAgreement.\n11. Waiver:\nThe failure of either Party to insist on compliance with any of the terms, covenants,\nor conditions of this Agreement by the other Party shall not be deemed a waiver of\nthat term, covenant, or condition, not shall any waiver or relinquishment of any right\nor power at any time be deemed a waiver or relinquishment of that right or power for\nall or any other times.\n12. Partial Invalidity:\nIf any provision in this Agreement is held by a court of competent jurisdiction be\nfound to be invalid, void, or unenforceable, the remaining provisions shall\nnevertheless continue in full force without being impaired or invalidated in any way.\n13. Attorney's Fees:\nIf any legal action is commenced or necessary to enforce or interrupt the terms of this\nAgreement, the prevailing Party shall be entitled to reasonable attorney's fees, costs,\nand necessary disbursements in addition to any other relief to which that party may be\nentitled.\nIntentionally Blank\n4\nCompany Initials /s/TCD\nConsultant Initials /s/ACK\n14. Entire Agreement:\nThis Agreement supersedes any and all other agreements, either oral or in writing,\nbetween the parties hereto with respect to the engagement of Consultant by Company,\nand contains all of the covenants and agreements between Parties with respect to that\nengagement in any manner whatsoever. Each Party acknowledges that no\nrepresentations, inducements, promises, or agreements, orally or otherwise, have been\nmade by any Party, or anyone acting on behalf of any Party, which are not embodied\nherein, and that no agreement, statement, or promise not contained in this Agreement\nshall be valid or binding on either Party, except that any other written agreement\ndated and signed concurrent with or after this Agreement shall be valid as between\nthe signing Parties thereto.\nAND NOW, intending to be legally bound thereby, the parties had set their hands this 21st\nday; of November, 2007.\nSanguine Corp.\n/s/T. C Drees\nTom Drees, President\nConsultant\n/s/Alfonso Knoll\nSignee\n5\nCompany Initials /s/TCD\nConsultant Initials /s/ACK	EX-10 2 kksconsultingagreementclean1.htm CONSULTING AND CONFIDENTIALITY AGREEMENT WITH KKS VENTURE\nMANAGEMENT, INC.\nCONSULTING AND CONFIDENTIALITY AGREEMENT\nTHIS CONSULTING AGREEMENT (hereinafter the “Agreement”), made and entered\ninto this 25th day of October, 2007, by and between KKS Venture Management Inc. and\nAlfonso Knoll (hereinafter “Consultants”), an independent contractor with a business\naddress of 240 Main Street, Denver PA 17517, and Sanguine Corporation a Nevada\ncorporation (hereinafter “the Company”), (hereinafter together referred to as “the\nParties”).\nThis will confirm the agreement between the Company and the Consultants this 25th day\nof October 2007 as follows:\nWhereas, The Company agrees to engage the Consultants and Consultants agree to\nprovide consulting services to the company for a period of one (1) year; and\nNOW, THEREFORE, in consideration of the mutual covenants set forth in this\nagreement, the Parties agree as follows:\n1. Consulting Services:\nFor a period of twelve (12) months from the date first signed above, Consultants\nwill hold themselves available to provide investor relations services to Company\nas may be requested by it, provided Consultants shall determine in their sole\ndiscretion the time and manner of providing such services. Consultant agrees to\nexercise its best efforts to provide the following services to Company:\n- Help Company in gaining market awareness and explore the possibilities of\na European listing; and\n- Help Company by recommending a capitalization restructure to facilitate an\noffering of $(5,000,000); and\n- Help when appropriate, approaching a larger underwriter to structure a\nsecondary offering for the build out of the Company brand and increase\nthe marking budget.\n- Foremost, provide such managerial help and consultation as to foster the\ngrowth and performance of the Company.\nConsultants will remain available to provide such services during the term of this\nagreement and Company will continue to compensate Consultants hereunder\nwhether or not it is a subsidiary of, or stockholder of, Company under separate\narrangement. The Consultants shall at all times be independent contractors to the\nCompany and shall not represent or be represented as an employee, partner,\nofficer, director or affiliate of the Company. This Agreement shall automatically\nrenew on a yearly basis on the last day of the twelfth month following execution\n1\nCompany Initials /s/TCD Consultant Initials /s/ACK\nof this Agreement each year on the same terms until either party gives written\nnotice of its intent not to renew. Said Notice shall be given at least 1 month\nbefore the renewal date.\nSubject to the terms and conditions of this Agreement, the Consultants accept this\nappointment as an independent contractor to the Company. In no event shall the\nConsultant be obligated to participate in and/or purchase Private Equity and/or\nCredit and Debt Facilities for its own account or for the accounts of any other\nentities or individuals.\n2. Compensation: In consideration of the consulting services of this agreement, Company agrees to\npay Consultant the following:\n- Upon signing this agreement Company will pay to Consultant, three million\n(3,000,000) common shares, in Company with “piggy-back” registration\nrights; and\n- 675,000 free trading SGNC common shares through a grant from the\nCompany’s Stock Option Plan to Alfonso Knoll personally under a\nseparate Letter Agreement of even date; and\n- After successful completion of a minimum of first $500,000 financing has\nbeen realized by the Company, the Company will pay Consultant Twenty\nThousand $20,000 per month so long as the company can afford to pay it.\nConsultants hereby agree that all payments will be made directly to KKS Venture\nManagement Inc.. The recipient here, KKS Venture Management Inc., LLC is an\nentity in which all three of the equity owners are accredited investors, as that\nphrase is defined in the Act.\n3. Termination; Accelerated Payment: In the event of Consultant’s failure to perform or Company’s failure to pay\nConsultant the non-breaching party may terminate this agreement and any\noutstanding claims shall refer to a panel of Arbitrators.\n4. Confidentiality: 2\nDuring the course of this agreement, it is likely that each party will come into\ncontact with confidential information crucial to the operation of each parties\nbusiness. Such confidential information may include, without limitation: (i)\nbusiness and financial information, (ii) business methods and practices, (iii)\ntechnology and technological strategies, (iv) marketing strategies and (v) other\nsuch information each Party deems as “Confidential Information”. By their\nsignature below, each party agrees to keep in strict confidence all non-public\ninformation so long as it remains non-public, except to the extent disclosure is\nrequired by law,\nCompany Initials /s/TCD Consultant Initials /s/ACK\frequested by any governmental or regulatory agency or body or to the extent that\nConsultants must disclose information to lenders and equity partners to obtain\nfinancing. Both parties agree not to use the confidential information disclosed to\nthem for their own benefit, or for the benefit of any party with which the\nConsultant or the Company is affiliated. If this agreement is terminated, each\nparty upon request will promptly return to the other party all documents,\ncontracts, records, or other information received by it that disclose or embody\nconfidential information of the other party.\n5. Covenant Not To Circumvent:\nIt is understood that the Consultants will be introducing the Company to equity,\ndebt and other financing parties along with potential purchasers of Company’s\nproduct or suite of products. The Company agrees that its employees, officers,\ndirectors or other consultants will not circumvent this agreement in an endeavor to\nemploy, tempt or cause any investment from Consultants contacts. The Company\nunderstands that such action would constitute a breach of this agreement and\nwould be harmful or damaging to the Consultants business; as a  result the\nConsultants would be owed treble damages payable forthwith in cash or kind in\nthe amount of ($100,000).\n6. Consents and Approvals\nBy their signature below, each party agrees they have been duly authorized to\nenter into and execute this agreement and have obtained the approval and consent\nof their respective Boards of Directors, and any other parties, which are\nappropriate or necessary for this agreement.\n7. Jurisdiction:\nThe agreements associated with this transaction will all be subject to\nPennsylvania law. Disputes will be resolved through the use of a nationally\nrecognized arbitration group. The location of any arbitration or legal proceeding\nwill be in the Berks County, Pennsylvania.\n8. Transfer:\nThis Agreement shall not be assigned by either party without the prior written\nconsent of the other party.\n9. Indemnity.\nCompany shall indemnify, defend and hold harmless Consultant from and against\nany and all losses incurred by Consultant which arise out of or result from\nmisrepresentation, breach of warranty or breach or non- fulfillment of any\ncovenant contained herein or Schedules annexed hereto or in any other documents\n3\nCompany Initials /s/TCD Consultant Initials /s/ACK\nor instruments furnished by Company pursuant hereto or in connection with this\nAgreement.\n10. Modifications:\nA modification or waiver of any of the provisions of this Agreement shall be\neffective only if made in writing and executed with the same formality as this\nAgreement.\n11. Waiver:\nThe failure of either Party to insist on compliance with any of the terms, covenants,\nor conditions of this Agreement by the other Party shall not be deemed a waiver of\nthat term, covenant, or condition, not shall any waiver or relinquishment of any right\nor power at any time be deemed a waiver or relinquishment of that right or power for\nall or any other times.\n12. Partial Invalidity:\nIf any provision in this Agreement is held by a court of competent jurisdiction be\nfound to be invalid, void, or unenforceable, the remaining provisions shall\nnevertheless continue in full force without being impaired or invalidated in any way.\n13. Attorney's Fees:\nIf any legal action is commenced or necessary to enforce or interrupt the terms of this\nAgreement, the prevailing Party shall be entitled to reasonable attorney's fees, costs,\nand necessary disbursements in addition to any other relief to which that party may be\nentitled.\nIntentionally Blank\n4\nCompany Initials /s/TCD Consultant Initials /s/ACK\n14. Entire Agreement:\nThis Agreement supersedes any and all other agreements, either oral or in writing,\nbetween the parties hereto with respect to the engagement of Consultant by Company,\nand contains all of the covenants and agreements between Parties with respect to that\nengagement in any manner whatsoever. Each Party acknowledges that no\nrepresentations, inducements, promises, or agreements, orally or otherwise, have been\nmade by any Party, or anyone acting on behalf of any Party, which are not embodied\nherein, and that no agreement, statement, or promise not contained in this Agreement\nshall be valid or binding on either Party, except that any other written agreement\ndated and signed concurrent with or after this Agreement shall be valid as between\nthe signing Parties thereto.\nAND NOW, intending to be legally bound thereby, the parties had set their hands this 215\nday; of November, 2007.\nSanguine Corp.\n/s/T. C Drees\nTom Drees, President\nConsultant\n/s/Alfonso Knoll\nSignee\n5\nCompany Initials /s/TCD Consultant Initials /s/ACK	EX-10 2 kksconsultingagreementcleanl.htm CONSULTING AND CONFIDENTIALITY AGREEMENT WITH KKS VENTURE\nMANAGEMENT, INC.\nCONSULTING AND CONFIDENTIALITY AGREEMENT\nTHIS CONSULTING AGREEMENT (hereinafter the "Agreement"), made and entered\ninto this 25th day of October, 2007, by and between KKS Venture Management Inc. and\nAlfonso Knoll (hereinafter "Consultants"), an independent contractor with a business\naddress of 240 Main Street, Denver PA 17517, and Sanguine Corporation a Nevada\ncorporation (hereinafter "the Company"), (hereinafter together referred to as "the\nParties").\nThis will confirm the agreement between the Company and the Consultants this 25th day\nof October 2007 as follows:\nWhereas, The Company agrees to engage the Consultants and Consultants agree to\nprovide consulting services to the company for a period of one (1) year; and\nNOW, THEREFORE, in consideration of the mutual covenants set forth in this\nagreement, the Parties agree as follows:\n1. Consulting Services:\nFor a period of twelve (12) months from the date first signed above, Consultants\nwill hold themselves available to provide investor relations services to Company\nas may be requested by it, provided Consultants shall determine in their sole\ndiscretion the time and manner of providing such services. Consultant agrees to\nexercise its best efforts to provide the following services to Company:\nHelp Company in gaining market awareness and explore the possibilities of\na European listing; and\nHelp Company by recommending a capitalization restructure to facilitate an\noffering of $(5,000,000); and\nHelp when appropriate, approaching a larger underwriter to structure a\nsecondary offering for the build out of the Company brand and increase\nthe marking budget.\nForemost, provide such managerial help and consultation as to foster the\ngrowth and performance of the Company.\nConsultants will remain available to provide such services during the term of this\nagreement and Company will continue to compensate Consultants hereunder\nwhether or not it is a subsidiary of, or stockholder of, Company under separate\narrangement. The Consultants shall at all times be independent contractors to the\nCompany and shall not represent or be represented as an employee, partner,\nofficer, director or affiliate of the Company. This Agreement shall automatically\nrenew on a yearly basis on the last day of the twelfth month following execution\n1\nCompany Initials /S/TCD\nConsultant Initials /S/ACK\nof this Agreement each year on the same terms until either party gives written\nnotice of its intent not to renew. Said Notice shall be given at least 1 month\nbefore the renewal date.\nSubject to the terms and conditions of this Agreement, the Consultants accept this\nappointment as an independent contractor to the Company. In no event shall the\nConsultant be obligated to participate in and/or purchase Private Equity and/or\nCredit and Debt Facilities for its own account or for the accounts of any other\nentities or individuals.\n2. Compensation:\nIn consideration of the consulting services of this agreement, Company agrees to\npay Consultant the following:\nUpon signing this agreement Company will pay to Consultant, three million\n(3,000,000) common shares, in Company with "piggy-back" registration\nrights; and\n675,000 free trading SGNC common shares through a grant from the\nCompany's Stock Option Plan to Alfonso Knoll personally under a\nseparate Letter Agreement of even date; and\nAfter successful completion of a minimum of first $500,000 financing has\nbeen realized by the Company, the Company will pay Consultant Twenty\nThousand $20,000 per month so long as the company can afford to pay it.\nConsultants hereby agree that all payments will be made directly to KKS Venture\nManagement Inc.. The recipient here, KKS Venture Management Inc., LLC is an\nentity in which all three of the equity owners are accredited investors, as that\nphrase is defined in the Act.\n3. Termination; Accelerated Payment:\nIn the event of Consultant's failure to perform or Company's failure to pay\nConsultant the non-breaching party may terminate this agreement and any\noutstanding claims shall refer to a panel of Arbitrators.\n4. Confidentiality:\nDuring the course of this agreement, it is likely that each party will come into\ncontact with confidential information crucial to the operation of each parties\nbusiness. Such confidential information may include, without limitation: (i)\nbusiness and financial information, (ii) business methods and practices, (iii)\ntechnology and technological strategies, (iv) marketing strategies and (v) other\nsuch information each Party deems as "Confidential Information". By their\nsignature below, each party agrees to keep in strict confidence all non-public\ninformation so long as it remains non-public, except to the extent disclosure is\nrequired by law,\n2\nCompany Initials /S/TCD\nConsultant Initials /S/ACK\nrequested by any governmental or regulatory agency or body or to the extent that\nConsultants must disclose information to lenders and equity partners to obtain\nfinancing. Both parties agree not to use the confidential information disclosed to\nthem for their own benefit, or for the benefit of any party with which the\nConsultant or the Company is affiliated. If this agreement is terminated, each\nparty upon request will promptly return to the other party all documents,\ncontracts, records, or other information received by it that disclose or embody\nconfidential information of the other party.\n5. Covenant Not To Circumvent:\nIt is understood that the Consultants will be introducing the Company to equity,\ndebt and other financing parties along with potential purchasers of Company's\nproduct or suite of products. The Company agrees that its employees, officers,\ndirectors or other consultants will not circumvent this agreement in an endeavor to\nemploy, tempt or cause any investment from Consultants contacts. The Company\nunderstands that such action would constitute a breach of this agreement and\nwould be harmful or damaging to the Consultants business; as a result the\nConsultants would be owed treble damages payable forthwith in cash or kind in\nthe amount of ($100,000).\n6. Consents and Approvals\nBy their signature below, each party agrees they have been duly authorized to\nenter into and execute this agreement and have obtained the approval and consent\nof their respective Boards of Directors, and any other parties, which are\nappropriate or necessary for this agreement.\n7. Jurisdiction:\nThe agreements associated with this transaction will all be subject to\nPennsylvania law. Disputes will be resolved through the use of a nationally\nrecognized arbitration group. The location of any arbitration or legal proceeding\nwill be in the Berks County, Pennsylvania.\n8. Transfer:\nThis Agreement shall not be assigned by either party without the prior written\nconsent of the other party.\n9. Indemnity.\nCompany shall indemnify, defend and hold harmless Consultant from and against\nany and all losses incurred by Consultant which arise out of or result from\nmisrepresentation, breach of warranty or breach or non- fulfillment of any\ncovenant contained herein or Schedules annexed hereto or in any other documents\n3\nCompany Initials /S/TCD\nConsultant Initials /S/ACK\nor instruments furnished by Company pursuant hereto or in connection with this\nAgreement.\n10. Modifications:\nA modification or waiver of any of the provisions of this Agreement shall be\neffective only if made in writing and executed with the same formality as this\nAgreement.\n11. Waiver:\nThe failure of either Party to insist on compliance with any of the terms, covenants,\nor conditions of this Agreement by the other Party shall not be deemed a waiver of\nthat term, covenant, or condition, not shall any waiver or relinquishment of any right\nor power at any time be deemed a waiver or relinquishment of that right or power for\nall or any other times.\n12. Partial Invalidity:\nIf any provision in this Agreement is held by a court of competent jurisdiction be\nfound to be invalid, void, or unenforceable, the remaining provisions shall\nnevertheless continue in full force without being impaired or invalidated in any way.\n13. Attorney's Fees:\nIf any legal action is commenced or necessary to enforce or interrupt the terms of this\nAgreement, the prevailing Party shall be entitled to reasonable attorney's fees, costs,\nand necessary disbursements in addition to any other relief to which that party may be\nentitled.\nIntentionally Blank\n4\nCompany Initials /S/TCD\nConsultant Initials /S/ACK\n14. Entire Agreement:\nThis Agreement supersedes any and all other agreements, either oral or in writing,\nbetween the parties hereto with respect to the engagement of Consultant by Company,\nand contains all of the covenants and agreements between Parties with respect to that\nengagement in any manner whatsoever. Each Party acknowledges that no\nrepresentations, inducements, promises, or agreements, orally or otherwise, have been\nmade by any Party, or anyone acting on behalf of any Party, which are not embodied\nherein, and that no agreement, statement, or promise not contained in this Agreement\nshall be valid or binding on either Party, except that any other written agreement\ndated and signed concurrent with or after this Agreement shall be valid as between\nthe signing Parties thereto.\nAND NOW, intending to be legally bound thereby, the parties had set their hands this 21st\nday; of November, 2007.\nSanguine Corp.\n/s/T. C Drees\nTom Drees, President\nConsultant\n/s/Alfonso Knoll\nSignee\n5\nCompany Initials /S/TCD\nConsultant Initials /S/ACK	EX-10 2 kksconsultingagreementclean1.htm CONSULTING AND CONFIDENTIALITY AGREEMENT WITH KKS VENTURE\nMANAGEMENT, INC.\nCONSULTING AND CONFIDENTIALITY AGREEMENT\nTHIS CONSULTING AGREEMENT (hereinafter the “Agreement”), made and entered\ninto this 25th day of October, 2007, by and between KKS Venture Management Inc. and\nAlfonso Knoll (hereinafter “Consultants”), an independent contractor with a business\naddress of 240 Main Street, Denver PA 17517, and Sanguine Corporation a Nevada\ncorporation (hereinafter “the Company”), (hereinafter together referred to as “the\nParties”).\nThis will confirm the agreement between the Company and the Consultants this 25th day\nof October 2007 as follows:\nWhereas, The Company agrees to engage the Consultants and Consultants agree to\nprovide consulting services to the company for a period of one (1) year; and\nNOW, THEREFORE, in consideration of the mutual covenants set forth in this\nagreement, the Parties agree as follows:\n1. Consulting Services:\nFor a period of twelve (12) months from the date first signed above, Consultants\nwill hold themselves available to provide investor relations services to Company\nas may be requested by it, provided Consultants shall determine in their sole\ndiscretion the time and manner of providing such services. Consultant agrees to\nexercise its best efforts to provide the following services to Company:\n· Help Company in gaining market awareness and explore the possibilities of\na European listing; and\n· Help Company by recommending a capitalization restructure to facilitate an\noffering of $(5,000,000); and\n·\nHelp when appropriate, approaching a larger underwriter to structure a\nsecondary offering for the build out of the Company brand and increase\nthe marking budget.\n·\nForemost, provide such managerial help and consultation as to foster the\ngrowth and performance of the Company.\nConsultants will remain available to provide such services during the term of this\nagreement and Company will continue to compensate Consultants hereunder\nwhether or not it is a subsidiary of, or stockholder of, Company under separate\narrangement. The Consultants shall at all times be independent contractors to the\nCompany and shall not represent or be represented as an employee, partner,\nofficer, director or affiliate of the Company. This Agreement shall automatically\nrenew on a yearly basis on the last day of the twelfth month following execution\n1\nCompany Initials /s/TCD\nConsultant Initials /s/ACK\nof this Agreement each year on the same terms until either party gives written\nnotice of its intent not to renew. Said Notice shall be given at least 1 month\nbefore the renewal date.\nSubject to the terms and conditions of this Agreement, the Consultants accept this\nappointment as an independent contractor to the Company. In no event shall the\nConsultant be obligated to participate in and/or purchase Private Equity and/or\nCredit and Debt Facilities for its own account or for the accounts of any other\nentities or individuals.\n2. Compensation:\nIn consideration of the consulting services of this agreement, Company agrees to\npay Consultant the following:\n· Upon signing this agreement Company will pay to Consultant, three million\n(3,000,000) common shares, in Company with “piggy-back” registration\nrights; and\n·\n675,000 free trading SGNC common shares through a grant from the\nCompany’s Stock Option Plan to Alfonso Knoll personally under a\nseparate Letter Agreement of even date; and\n· After successful completion of a minimum of first $500,000 financing has\nbeen realized by the Company, the Company will pay Consultant Twenty\nThousand $20,000 per month so long as the company can afford to pay it.\nConsultants hereby agree that all payments will be made directly to KKS Venture\nManagement Inc.. The recipient here, KKS Venture Management Inc., LLC is an\nentity in which all three of the equity owners are accredited investors, as that\nphrase is defined in the Act.\n3. Termination; Accelerated Payment:\nIn the event of Consultant’s failure to perform or Company’s failure to pay\nConsultant the non-breaching party may terminate this agreement and any\noutstanding claims shall refer to a panel of Arbitrators.\n4. Confidentiality:\nDuring the course of this agreement, it is likely that each party will come into\ncontact with confidential information crucial to the operation of each parties\nbusiness. Such confidential information may include, without limitation: (i)\nbusiness and financial information, (ii) business methods and practices, (iii)\ntechnology and technological strategies, (iv) marketing strategies and (v) other\nsuch information each Party deems as “Confidential Information”. By their\nsignature below, each party agrees to keep in strict confidence all non-public\ninformation so long as it remains non-public, except to the extent disclosure is\nrequired by law,\n2\nCompany Initials /s/TCD\nConsultant Initials /s/ACK\nrequested by any governmental or regulatory agency or body or to the extent that\nConsultants must disclose information to lenders and equity partners to obtain\nfinancing. Both parties agree not to use the confidential information disclosed to\nthem for their own benefit, or for the benefit of any party with which the\nConsultant or the Company is affiliated. If this agreement is terminated, each\nparty upon request will promptly return to the other party all documents,\ncontracts, records, or other information received by it that disclose or embody\nconfidential information of the other party.\n5. Covenant Not To Circumvent:\nIt is understood that the Consultants will be introducing the Company to equity,\ndebt and other financing parties along with potential purchasers of Company’s\nproduct or suite of products. The Company agrees that its employees, officers,\ndirectors or other consultants will not circumvent this agreement in an endeavor to\nemploy, tempt or cause any investment from Consultants contacts. The Company\nunderstands that such action would constitute a breach of this agreement and\nwould be harmful or damaging to the Consultants business; as a\nresult the\nConsultants would be owed treble damages payable forthwith in cash or kind in\nthe amount of ($100,000).\n6. Consents and Approvals\nBy their signature below, each party agrees they have been duly authorized to\nenter into and execute this agreement and have obtained the approval and consent\nof their respective Boards of Directors, and any other parties, which are\nappropriate or necessary for this agreement.\n7. Jurisdiction:\nThe agreements associated with this transaction will all be subject to\nPennsylvania law. Disputes will be resolved through the use of a nationally\nrecognized arbitration group. The location of any arbitration or legal proceeding\nwill be in the Berks County, Pennsylvania.\n8. Transfer:\nThis Agreement shall not be assigned by either party without the prior written\nconsent of the other party.\n9. Indemnity.\nCompany shall indemnify, defend and hold harmless Consultant from and against\nany and all losses incurred by Consultant which arise out of or result from\nmisrepresentation, breach of warranty or breach or non- fulfillment of any\ncovenant contained herein or Schedules annexed hereto or in any other documents\n3\nCompany Initials /s/TCD\nConsultant Initials /s/ACK\nor instruments furnished by Company pursuant hereto or in connection with this\nAgreement.\n10. Modifications:\nA modification or waiver of any of the provisions of this Agreement shall be\neffective only if made in writing and executed with the same formality as this\nAgreement.\n11. Waiver:\nThe failure of either Party to insist on compliance with any of the terms, covenants,\nor conditions of this Agreement by the other Party shall not be deemed a waiver of\nthat term, covenant, or condition, not shall any waiver or relinquishment of any right\nor power at any time be deemed a waiver or relinquishment of that right or power for\nall or any other times.\n12. Partial Invalidity:\nIf any provision in this Agreement is held by a court of competent jurisdiction be\nfound to be invalid, void, or unenforceable, the remaining provisions shall\nnevertheless continue in full force without being impaired or invalidated in any way.\n13. Attorney's Fees:\nIf any legal action is commenced or necessary to enforce or interrupt the terms of this\nAgreement, the prevailing Party shall be entitled to reasonable attorney's fees, costs,\nand necessary disbursements in addition to any other relief to which that party may be\nentitled.\nIntentionally Blank\n4\nCompany Initials /s/TCD\nConsultant Initials /s/ACK\n14. Entire Agreement:\nThis Agreement supersedes any and all other agreements, either oral or in writing,\nbetween the parties hereto with respect to the engagement of Consultant by Company,\nand contains all of the covenants and agreements between Parties with respect to that\nengagement in any manner whatsoever. Each Party acknowledges that no\nrepresentations, inducements, promises, or agreements, orally or otherwise, have been\nmade by any Party, or anyone acting on behalf of any Party, which are not embodied\nherein, and that no agreement, statement, or promise not contained in this Agreement\nshall be valid or binding on either Party, except that any other written agreement\ndated and signed concurrent with or after this Agreement shall be valid as between\nthe signing Parties thereto.\nAND NOW, intending to be legally bound thereby, the parties had set their hands this 21st\nday; of November, 2007.\nSanguine Corp.\n/s/T. C Drees\nTom Drees, President\nConsultant\n/s/Alfonso Knoll\nSignee\n5\nCompany Initials /s/TCD\nConsultant Initials /s/ACK
38d3865e2a3e2eeaf3fa8bddc17b1687.pdf	effective_date jurisdiction party term	EX-99.(E)(3) 2 dex99e3.htm NONDISCLOSURE AGREEMENT\nExhibit (e)(3)\nLOGO\nNONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this “Agreement”) is dated November 2, 2010, by and between Rovi Corporation, a Delaware corporation\n(“Rovi”) and Sonic Solutions, a California corporation (“Sonic”). For purposes hereof, the party disclosing Confidential Information (as defined in\nSection 1) may be referred to as “Discloser” and the party receiving Confidential Information may be referred to as “Recipient.” The term “Person”\nwill be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority, and a party’s\n“Representatives” will be deemed to include each Person that is or becomes an officer, director, employee, partner, attorney, advisor, accountant,\nagent or representative of such party or of any of such party’s subsidiaries or other affiliates. The parties hereby agree as follows:\n1. Confidential Information. “Confidential Information” includes: (a) any information (including, without limitation, any technology, know-how,\nstudies, patent applications, test results, business plans, budgets, forecasts and projections) relating directly or indirectly to the business of Discloser,\nwhether prepared by Discloser or by any other Person and whether or not in written form, that is made available after the date hereof to Recipient or\nany of its Representatives for the purpose of considering a Transaction; (b) any memorandum, analysis, compilation, summary, interpretation, study,\nreport or other document or material that is or has been prepared by or for Recipient and that contains, reflects, interprets or is based directly or\nindirectly upon any information of the type referred to in clause (a) of this sentence; (c) the existence and terms of this Agreement; and (d) the fact\nthat discussions or negotiations are or may be taking place with respect to a possible Transaction (as defined in Section 2); and (e) the proposed\nterms of any such Transaction. If disclosed in written, recorded, graphical or other tangible form, Confidential Information shall be marked\n“Proprietary”, “Confidential” or similar designation. If disclosed in oral form, Confidential Information shall be identified by the Discloser as\n“Proprietary”, “Confidential” or similar designation at the time of oral disclosure, with subsequent confirmation in writing within thirty (30) days of\nsuch disclosure. Notwithstanding the preceding two sentences, Confidential Information shall include information which should be reasonably\nconstrued by the Recipient to be confidential. Notwithstanding the foregoing “Confidential Information” will not include any information that (i) is\nor becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by Recipient or any\nof its Representatives, (ii) was in Recipient’s possession prior to the time it was first made available to Recipient or any of its Representatives by or\non behalf of Discloser, provided that such information was not acquired improperly by the Recipient in breach of any contractual or other obligation\nof confidentiality to Discloser or any other Person with respect to any of such information, (iii) becomes available to Recipient on a non-confidential\nbasis from a source other than Discloser or any of its Representatives, provided that such information was not acquired improperly by the Recipient\nin breach of any contractual or other obligation of confidentiality to Discloser or any other Person with respect to any of such information, or\n(iv) was independently developed by Recipient.\n2. Limitations. Subject to Section 3, neither Recipient nor any of its Representatives will directly or indirectly: (a) make use of any Confidential\nInformation, except for the specific purpose of considering, evaluating and negotiating a possible negotiated transaction between the Sonic and Rovi\n(a “Transaction”); or (b) disclose any Confidential Information to any other Person. Recipient will be liable and responsible for any breach of this\nAgreement by its Representatives and will, at its own expense, take actions necessary to restrain its Representatives from making any unauthorized\nuse or disclosure of any Confidential Information.\n3. Permitted Disclosures. Notwithstanding the limitations set forth in Section 2, Recipient may disclose Confidential Information to its\nRepresentatives, but only to the extent a Representative needs to know such Confidential Information for the purpose of helping Recipient in\nconnection with a possible Transaction, and has agreed to be bound by the provisions hereof. If Discloser notifies Recipient in writing prior to the\ndisclosure of certain Confidential Information that such Confidential Information may be disclosed only to specified Representatives of Recipient,\nthen Recipient shall not disclose such Confidential Information to any of its other Representatives. If Recipient or any of its Representatives is\nrequired by law or governmental regulation or by subpoena or other valid legal process to disclose any Confidential Information to any Person, then\nRecipient will immediately provide Discloser with written notice of the applicable law, regulation or process so that Discloser may seek a protective\norder or other appropriate remedy. Recipient and its Representatives will cooperate fully with Discloser in any attempt by Discloser to obtain any\nsuch protective order or other remedy. If Discloser elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy, then\nRecipient may disclose such Confidential Information to the extent, but only to the extent, legally required; provided that Recipient and its\nRepresentatives will use their reasonable efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is\ndisclosed.\n4. No Representations or Licenses. Neither party nor any of its Representatives will be under any obligation to make any particular Confidential\nInformation available to Recipient or any of Recipient’s Representatives or to supplement or update any Confidential Information previously\nfurnished. Neither party nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy\nor completeness of any Confidential Information, and neither party nor any of its Representatives will have any liability to Recipient or to any of\nRecipient’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions\ntherefrom. Only those representations and warranties, if any, that are included in any final definitive written agreement (a “Definitive Agreement”)\nthat provides for the consummation of the Transaction will have legal effect. Unless the parties enter into a Definitive Agreement, no agreement\nproviding for a Transaction will be deemed to exist between the parties, and neither party will be under any obligation to negotiate or enter into any\nsuch Transaction.\nNondisclosure Agreement\n1\nBy making Confidential Information or other information available hereunder, Discloser does not grant any license or other right under or with\nrespect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right.\n5. Term and Termination. This Agreement will continue for a period of one (1) year from the date hereof unless earlier terminated. Either party\nmay terminate this Agreement, with or without cause, upon ten (10) days’ prior written notice to the other. The confidentiality and other obligations\nregarding Confidential Information disclosed prior to such termination will survive for a period of three years after such disclosure. Upon\ntermination or at the request of Discloser at any time, Recipient and its Representatives will promptly deliver to Discloser any Confidential\nInformation obtained or possessed by Recipient or any of its Representatives; provided, however, that, in lieu of delivering to Discloser any written\nmaterials containing Confidential Information, Recipient may destroy such written materials and deliver to Discloser a certificate confirming their\ndestruction. Notwithstanding the delivery to Discloser (or the destruction by Recipient) of Confidential Information pursuant to this Section 5,\nRecipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement.\n6. Remedies. Each party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement, and that the non-\nbreaching party could suffer irreparable harm as a result of such breach. Accordingly, the non-breaching party will also be entitled to equitable relief,\nincluding injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement.\n7. Miscellaneous.\n(a) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege,\nwork product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit, investigation,\narbitration or dispute, it is acknowledged and agreed that Recipient and Discloser have a commonality of interest with respect to such action, suit,\ninvestigation, arbitration or dispute and that it is their mutual intention and understanding that the sharing of such materials and other information is\nnot intended to, and shall not waive or diminish the continued protection of any of such materials or other information under any applicable privilege\nor doctrine. Accordingly, all Confidential Information that is entitled to protection under any applicable privilege or doctrine shall remain entitled to\nprotection thereunder and shall be entitled to protection under the joint defense doctrine, and Recipient agrees to take measures necessary to\npreserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n(b) This Agreement and the transactions hereunder shall be governed by and construed and enforced in accordance with the laws of the State\nof California, excluding conflict of law rules and principles. In the event of any litigation between the parties, the prevailing party will be entitled to\nreasonable attorneys’ fees and all costs incurred in enforcing this Agreement.\n(c) This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes all\nother oral or written representations and understandings. The failure to enforce any right will not be deemed a waiver of such or any other rights,\nincluding the right to enforce a subsequent breach of the same obligation. If for any reason a court of competent jurisdiction finds any provision of\nthis Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to\neffect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. This Agreement may be amended or\nmodified only by a writing signed by the parties. This Agreement will be binding upon the successors and assigns of both parties.\n(d) This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but which collectively will\nconstitute one and the same instrument. For purposes hereof, a facsimile or electronic copy of this Agreement, including the signature page hereto,\nwill be deemed to be an original.\n(e) Each party agrees to comply with all export laws and regulations of the United States of America applicable to any information disclosed\nhereunder.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the date first\nset forth above.\nRovi Corporation\nSonic Solutions\nBy:\n/s/ Pamela Sergeeff\nBy:\n/s/ Paul F. Norris\nName: Pamela Sergeeff\nName: Paul F. Norris\nTitle:\nAuthorized Signatory\nTitle:\nEVP, CFO and General Counsel\nDate:\nNovember 2, 2010\nDate:\nNovember 2, 2010\nNotice Address:\nNotice Address:\nNondisclosure Agreement\n2\nRovi Corporation\nSonic Solutions\nAttn: General Counsel\nAttn: General Counsel\n2830 De La Cruz Boulevard\n7250 Redwood Boulevard, Suite 300\nSanta Clara, CA 95050\nNovato, CA 94945 USA\nFax: 408-567-1807\nFax: 415-893 -7011\nNondisclosure Agreement\n3	EX-99.(E)(3) 2 dex99e3.htm NONDISCLOSURE AGREEMENT\nExhibit (e)(3)\n».LOGO\nNONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this “Agreement”) is dated November 2, 2010, by and between Rovi Corporation, a Delaware corporation\n(“Rovi”) and Sonic Solutions, a California corporation (“Sonic”). For purposes hereof, the party disclosing Confidential Information (as defined in\nSection 1) may be referred to as “Discloser” and the party receiving Confidential Information may be referred to as “Recipient.” The term “Person”\nwill be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority, and a party’s\n“Representatives” will be deemed to include each Person that is or becomes an officer, director, employee, partner, attorney, advisor, accountant,\nagent or representative of such party or of any of such party’s subsidiaries or other affiliates. The parties hereby agree as follows:\n1. Confidential Information. “Confidential Information” includes: (a) any information (including, without limitation, any technology, know-how,\nstudies, patent applications, test results, business plans, budgets, forecasts and projections) relating directly or indirectly to the business of Discloser,\nwhether prepared by Discloser or by any other Person and whether or not in written form, that is made available after the date hereof to Recipient or\nany of its Representatives for the purpose of considering a Transaction; (b) any memorandum, analysis, compilation, summary, interpretation, study,\nreport or other document or material that is or has been prepared by or for Recipient and that contains, reflects, interprets or is based directly or\nindirectly upon any information of the type referred to in clause (a) of this sentence; (c) the existence and terms of this Agreement; and (d) the fact\nthat discussions or negotiations are or may be taking place with respect to a possible Transaction (as defined in Section 2); and (e) the proposed\nterms of any such Transaction. If disclosed in written, recorded, graphical or other tangible form, Confidential Information shall be marked\n“Proprietary”, “Confidential” or similar designation. If disclosed in oral form, Confidential Information shall be identified by the Discloser as\n“Proprietary”, “Confidential” or similar designation at the time of oral disclosure, with subsequent confirmation in writing within thirty (30) days of\nsuch disclosure. Notwithstanding the preceding two sentences, Confidential Information shall include information which should be reasonably\nconstrued by the Recipient to be confidential. Notwithstanding the foregoing “Confidential Information” will not include any information that (i) is\nor becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by Recipient or any\nof its Representatives, (ii) was in Recipient’s possession prior to the time it was first made available to Recipient or any of its Representatives by or\non behalf of Discloser, provided that such information was not acquired improperly by the Recipient in breach of any contractual or other obligation\nof confidentiality to Discloser or any other Person with respect to any of such information, (iii) becomes available to Recipient on a non-confidential\nbasis from a source other than Discloser or any of its Representatives, provided that such information was not acquired improperly by the Recipient\nin breach of any contractual or other obligation of confidentiality to Discloser or any other Person with respect to any of such information, or\n(iv) was independently developed by Recipient.\n2. Limitations. Subject to Section 3, neither Recipient nor any of its Representatives will directly or indirectly: (a) make use of any Confidential\nInformation, except for the specific purpose of considering, evaluating and negotiating a possible negotiated transaction between the Sonic and Rovi\n(a “Transaction”); or (b) disclose any Confidential Information to any other Person. Recipient will be liable and responsible for any breach of this\nAgreement by its Representatives and will, at its own expense, take actions necessary to restrain its Representatives from making any unauthorized\nuse or disclosure of any Confidential Information.\n3. Permitted Disclosures. Notwithstanding the limitations set forth in Section 2, Recipient may disclose Confidential Information to its\nRepresentatives, but only to the extent a Representative needs to know such Confidential Information for the purpose of helping Recipient in\nconnection with a possible Transaction, and has agreed to be bound by the provisions hereof. If Discloser notifies Recipient in writing prior to the\ndisclosure of certain Confidential Information that such Confidential Information may be disclosed only to specified Representatives of Recipient,\nthen Recipient shall not disclose such Confidential Information to any of its other Representatives. If Recipient or any of its Representatives is\nrequired by law or governmental regulation or by subpoena or other valid legal process to disclose any Confidential Information to any Person, then\nRecipient will immediately provide Discloser with written notice of the applicable law, regulation or process so that Discloser may seek a protective\norder or other appropriate remedy. Recipient and its Representatives will cooperate fully with Discloser in any attempt by Discloser to obtain any\nsuch protective order or other remedy. If Discloser elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy, then\nRecipient may disclose such Confidential Information to the extent, but only to the extent, legally required; provided that Recipient and its\nRepresentatives will use their reasonable efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is\ndisclosed.\n4. No Representations or Licenses. Neither party nor any of its Representatives will be under any obligation to make any particular Confidential\nInformation available to Recipient or any of Recipient’s Representatives or to supplement or update any Confidential Information previously\nfurnished. Neither party nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy\nor completeness of any Confidential Information, and neither party nor any of its Representatives will have any liability to Recipient or to any of\nRecipient’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions\ntherefrom. Only those representations and warranties, if any, that are included in any final definitive written agreement (a “Definitive Agreement”)\nthat provides for the consummation of the Transaction will have legal effect. Unless the parties enter into a Definitive Agreement, no agreement\nproviding for a Transaction will be deemed to exist between the parties, and neither party will be under any obligation to negotiate or enter into any\nsuch Transaction.\nNondisclosure Agreement 1\nBy making Confidential Information or other information available hereunder, Discloser does not grant any license or other right under or with\nrespect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right.\n5. Term and Termination. This Agreement will continue for a period of one (1) year from the date hereof unless earlier terminated. Either party\nmay terminate this Agreement, with or without cause, upon ten (10) days’ prior written notice to the other. The confidentiality and other obligations\nregarding Confidential Information disclosed prior to such termination will survive for a period of three years after such disclosure. Upon\ntermination or at the request of Discloser at any time, Recipient and its Representatives will promptly deliver to Discloser any Confidential\nInformation obtained or possessed by Recipient or any of its Representatives; provided, however, that, in lieu of delivering to Discloser any written\nmaterials containing Confidential Information, Recipient may destroy such written materials and deliver to Discloser a certificate confirming their\ndestruction. Notwithstanding the delivery to Discloser (or the destruction by Recipient) of Confidential Information pursuant to this Section 5,\nRecipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement.\n6. Remedies. Each party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement, and that the non-\nbreaching party could suffer irreparable harm as a result of such breach. Accordingly, the non-breaching party will also be entitled to equitable relief,\nincluding injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement.\n7. Miscellaneous.\n(a) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege,\nwork product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit, investigation,\narbitration or dispute, it is acknowledged and agreed that Recipient and Discloser have a commonality of interest with respect to such action, suit,\ninvestigation, arbitration or dispute and that it is their mutual intention and understanding that the sharing of such materials and other information is\nnot intended to, and shall not waive or diminish the continued protection of any of such materials or other information under any applicable privilege\nor doctrine. Accordingly, all Confidential Information that is entitled to protection under any applicable privilege or doctrine shall remain entitled to\nprotection thereunder and shall be entitled to protection under the joint defense doctrine, and Recipient agrees to take measures necessary to\npreserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n(b) This Agreement and the transactions hereunder shall be governed by and construed and enforced in accordance with the laws of the State\nof California, excluding conflict of law rules and principles. In the event of any litigation between the parties, the prevailing party will be entitled to\nreasonable attorneys’ fees and all costs incurred in enforcing this Agreement.\n(c) This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes all\nother oral or written representations and understandings. The failure to enforce any right will not be deemed a waiver of such or any other rights,\nincluding the right to enforce a subsequent breach of the same obligation. If for any reason a court of competent jurisdiction finds any provision of\nthis Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to\neffect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. This Agreement may be amended or\nmodified only by a writing signed by the parties. This Agreement will be binding upon the successors and assigns of both parties.\n(d) This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but which collectively will\nconstitute one and the same instrument. For purposes hereof, a facsimile or electronic copy of this Agreement, including the signature page hereto,\nwill be deemed to be an original.\n(e) Each party agrees to comply with all export laws and regulations of the United States of America applicable to any information disclosed\nhereunder.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the date first\nset forth above.\nRovi Corporation Sonic Solutions\nBy: /s/ Pamela Sergeeff By: /s/ Paul F. Norris\nName: Pamela Sergeeff Name: Paul F. Norris\nTitle: Authorized Signatory Title: EVP, CFO and General Counsel\nDate: November 2, 2010 Date: November 2, 2010\nNotice Address: Notice Address:\nNondisclosure Agreement 2\nRovi Corporation\nAttn: General Counsel\n2830 De La Cruz Boulevard\nSanta Clara, CA 95050\nFax: 408-567-1807\nNondisclosure Agreement\nSonic Solutions\nAttn: General Counsel\n7250 Redwood Boulevard, Suite 300\nNovato, CA 94945 USA\nFax: 415-893-7011	EX-99.(E)(3) 2 dex99e3.htm NONDISCLOSURE AGREEMENT\nExhibit (e)(3)\nNONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this "Agreement") is dated November 2, 2010, by and between Rovi Corporation, a Delaware corporation\n("Rovi") and Sonic Solutions, a California corporation ("Sonic"). For purposes hereof, the party disclosing Confidential Information (as defined\nin\nSection 1) may be referred to as "Discloser" and the party receiving Confidential Information may be referred to as "Recipient." The term "Person"\nwill be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority, and a party's\n"Representatives" will be deemed to include each Person that is or becomes an officer, director, employee, partner, attorney, advisor, accountant,\nagent or representative of such party or of any of such party's subsidiaries or other affiliates. The parties hereby agree as follows:\n1. Confidential Information. "Confidential Information" includes: (a) any information (including, without limitation, any technology, know-how,\nstudies, patent applications, test results, business plans, budgets, forecasts and projections) relating directly or indirectly to the business of Discloser,\nwhether prepared by Discloser or by any other Person and whether or not in written form, that is made available after the date hereof to Recipient or\nany\nof\nits\nRepresentatives\nfor\nthe\npurpose\nof\nconsidering\na\nTransaction;\n(b)\nany\nmemorandum,\nanalysis,\ncompilation,\nsummary,\ninterpretation,\nstudy,\nreport or other document or material that is or has been prepared by or for Recipient and that contains, reflects, interprets or is based directly or\nindirectly upon any information of the type referred to in clause (a) of this sentence; (c) the existence and terms of this Agreement; and (d) the fact\nthat discussions or negotiations are or may be taking place with respect to a possible Transaction (as defined in Section 2); and (e) the proposed\nterms of any such Transaction. If disclosed in written, recorded, graphical or other tangible form, Confidential Information shall be marked\n"Proprietary", "Confidential" or similar designation. If disclosed in oral form, Confidential Information shall be identified by the Discloser\nas\n"Proprietary", "Confidential" or similar designation at the time of oral disclosure, with subsequent confirmation in writing within thirty (30) days of\nsuch disclosure. Notwithstanding the preceding two sentences, Confidential Information shall include information which should be reasonably\nconstrued by the Recipient to be confidential. Notwithstanding the foregoing "Confidential Information" will not include any information that (i)\nis\nor\nbecomes\ngenerally\navailable\nto\nthe\npublic\nother\nthan\nas\na\ndirect\nor\nindirect\nresult\nof\nthe\ndisclosure\nof\nany\nof\nsuch\ninformation\nby\nRecipient\nor\nany\nof its Representatives, (ii) was in Recipient's possession prior to the time it was first made available to Recipient or any of its Representatives by or\non behalf of Discloser, provided that such information was not acquired improperly by the Recipient in breach of any contractual or other obligation\nof confidentiality to Discloser or any other Person with respect to any of such information, (iii) becomes available to Recipient on a non-confidential\nbasis from a source other than Discloser or any of its Representatives, provided that such information was not acquired improperly by the Recipient\nin breach of any contractual or other obligation of confidentiality to Discloser or any other Person with respect to any of such information, or\n(iv) was independently developed by Recipient.\n2. Limitations. Subject to Section 3, neither Recipient nor any of its Representatives will directly or indirectly (a) make use of any Confidential\nInformation, except for the specific purpose of considering, evaluating and negotiating a possible negotiated transaction between the Sonic and Rovi\n(a "Transaction"); or (b) disclose any Confidential Information to any other Person. Recipient will be liable and responsible for any breach of this\nAgreement by its Representatives and will, at its own expense, take actions necessary to restrain its Representatives from making any unauthorized\nuse or disclosure of any Confidential Information.\n3. Permitted Disclosures. Notwithstanding the limitations set forth in Section 2, Recipient may disclose Confidential Information to its\nRepresentatives, but only to the extent a Representative needs to know such Confidential Information for the purpose of helping Recipient in\nconnection with a possible Transaction, and has agreed to be bound by the provisions hereof. If Discloser notifies Recipient in writing prior to the\ndisclosure of certain Confidential Information that such Confidential Information may be disclosed only to specified Representatives of Recipient,\nthen Recipient shall not disclose such Confidential Information to any of its other Representatives. If Recipient or any of its Representatives is\nrequired by law or governmental regulation or by subpoena or other valid legal process to disclose any Confidential Information to any Person, then\nRecipient will immediately provide Discloser with written notice of the applicable law, regulation or process so that Discloser may seek a protective\norder or other appropriate remedy. Recipient and its Representatives will cooperate fully with Discloser in any attempt by Discloser to obtain any\nsuch protective order or other remedy. If Discloser elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy, then\nRecipient may disclose such Confidential Information to the extent, but only to the extent, legally required; provided that Recipient and its\nRepresentatives will use their reasonable efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is\ndisclosed.\n4. No Representations or Licenses. Neither party nor any of its Representatives will be under any obligation to make any particular Confidential\nInformation available to Recipient or any of Recipient's Representatives or to supplement or update any Confidential Information previously\nfurnished. Neither party nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy\nor completeness of any Confidential Information, and neither party nor any of its Representatives will have any liability to Recipient or to any of\nRecipient's Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions\ntherefrom. Only those representations and warranties, if any, that are included in any final definitive written agreement (a "Definitive Agreement")\nthat provides for the consummation of the Transaction will have legal effect. Unless the parties enter into a Definitive Agreement, no agreement\nproviding for a Transaction will be deemed to exist between the parties, and neither party will be under any obligation to negotiate or enter into any\nsuch Transaction.\nNondisclosure Agreement\n1\nBy making Confidential Information or other information available hereunder, Discloser does not grant any license or other right under or with\nrespect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right.\n5. Term and Termination. This Agreement will continue for a period of one (1) year from the date hereof unless earlier terminated. Either party\nmay terminate this Agreement, with or without cause, upon ten (10) days' prior written notice to the other. The confidentiality and other obligations\nregarding Confidential Information disclosed prior to such termination will survive for a period of three years after such disclosure. Upon\ntermination or at the request of Discloser at any time, Recipient and its Representatives will promptly deliver to Discloser any Confidential\nInformation obtained or possessed by Recipient or any of its Representatives; provided, however, that, in lieu of delivering to Discloser any written\nmaterials containing Confidential Information, Recipient may destroy such written materials and deliver to Discloser a certificate confirming their\ndestruction.\nNotwithstanding the delivery to Discloser (or the destruction by Recipient) of Confidential Information pursuant to this Section\n5,\nRecipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement.\n6. Remedies. Each party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement, and that the non-\nbreaching party could suffer irreparable harm as a result of such breach. Accordingly, the non-breaching party will also be entitled to equitable relief,\nincluding injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement.\n7. Miscellaneous.\n(a) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege,\nwork product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit, investigation,\narbitration or dispute, it is acknowledged and agreed that Recipient and Discloser have a commonality of interest with respect to such action, suit,\ninvestigation, arbitration or dispute and that it is their mutual intention and understanding that the sharing of such materials and other information is\nnot intended to, and shall not waive or diminish the continued protection of any of such materials or other information under any applicable privilege\nor doctrine. Accordingly, all Confidential Information that is entitled to protection under any applicable privilege or doctrine shall remain entitled\nto\nprotection thereunder and shall be entitled to protection under the joint defense doctrine, and Recipient agrees to take measures necessary to\npreserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n(b) This Agreement and the transactions hereunder shall be governed by and construed and enforced in accordance with the laws of the State\nof California, excluding conflict of law rules and principles. In the event of any litigation between the parties, the prevailing party will be entitled to\nreasonable attorneys' fees and all costs incurred in enforcing this Agreement.\n(c) This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes all\nother oral or written representations and understandings. The failure to enforce any right will not be deemed a waiver of such or any other rights,\nincluding the right to enforce a subsequent breach of the same obligation. If for any reason a court of competent jurisdiction finds any provision of\nthis Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to\neffect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. This Agreement may be amended or\nmodified only by a writing signed by the parties. This Agreement will be binding upon the successors and assigns of both parties.\n(d) This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but which collectively will\nconstitute one and the same instrument. For purposes hereof, a facsimile or electronic copy of this Agreement, including the signature page hereto,\nwill be deemed to be an original.\n(e) Each party agrees to comply with all export laws and regulations of the United States of America applicable to any information disclosed\nhereunder.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the date first\nset forth above.\nRovi Corporation\nSonic Solutions\nBy:\n/s/ Pamela Sergeeff\nBy:\n/s/ Paul F. Norris\nName: Pamela Sergeeff\nName:\nPaul F. Norris\nTitle:\nAuthorized Signatory\nTitle:\nEVP, CFO and General Counsel\nDate:\nNovember 2, 2010\nDate:\nNovember 2, 2010\nNotice Address:\nNotice Address:\nNondisclosure Agreement\n2\nRovi Corporation\nSonic Solutions\nAttn: General Counsel\nAttn: General Counsel\n2830 De La Cruz Boulevard\n7250 Redwood Boulevard, Suite 300\nSanta Clara, CA 95050\nNovato, CA 94945 USA\nFax: 408-567-1807\nFax: 415-893-7011\nNondisclosure Agreement\n3	EX-99.(E)(3) 2 dex99e3.htm NONDISCLOSURE AGREEMENT\nExhibit (e)(3)\nLOGO\nNONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this “Agreement”) is dated November 2, 2010, by and between Rovi Corporation, a Delaware corporation\n(“Rovi”) and Sonic Solutions, a California corporation (“Sonic”). For purposes hereof, the party disclosing Confidential Information (as defined in\nSection 1) may be referred to as “Discloser” and the party receiving Confidential Information may be referred to as “Recipient.” The term “Person”\nwill be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority, and a party’s\n“Representatives” will be deemed to include each Person that is or becomes an officer, director, employee, partner, attorney, advisor, accountant,\nagent or representative of such party or of any of such party’s subsidiaries or other affiliates. The parties hereby agree as follows:\n1. Confidential Information. “Confidential Information” includes: (a) any information (including, without limitation, any technology, know-how,\nstudies, patent applications, test results, business plans, budgets, forecasts and projections) relating directly or indirectly to the business of Discloser,\nwhether prepared by Discloser or by any other Person and whether or not in written form, that is made available after the date hereof to Recipient or\nany of its Representatives for the purpose of considering a Transaction; (b) any memorandum, analysis, compilation, summary, interpretation, study,\nreport or other document or material that is or has been prepared by or for Recipient and that contains, reflects, interprets or is based directly or\nindirectly upon any information of the type referred to in clause (a) of this sentence; (c) the existence and terms of this Agreement; and (d) the fact\nthat discussions or negotiations are or may be taking place with respect to a possible Transaction (as defined in Section 2); and (e) the proposed\nterms of any such Transaction. If disclosed in written, recorded, graphical or other tangible form, Confidential Information shall be marked\n“Proprietary”, “Confidential” or similar designation. If disclosed in oral form, Confidential Information shall be identified by the Discloser as\n“Proprietary”, “Confidential” or similar designation at the time of oral disclosure, with subsequent confirmation in writing within thirty (30) days of\nsuch disclosure. Notwithstanding the preceding two sentences, Confidential Information shall include information which should be reasonably\nconstrued by the Recipient to be confidential. Notwithstanding the foregoing “Confidential Information” will not include any information that (i) is\nor becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by Recipient or any\nof its Representatives, (ii) was in Recipient’s possession prior to the time it was first made available to Recipient or any of its Representatives by or\non behalf of Discloser, provided that such information was not acquired improperly by the Recipient in breach of any contractual or other obligation\nof confidentiality to Discloser or any other Person with respect to any of such information, (iii) becomes available to Recipient on a non-confidential\nbasis from a source other than Discloser or any of its Representatives, provided that such information was not acquired improperly by the Recipient\nin breach of any contractual or other obligation of confidentiality to Discloser or any other Person with respect to any of such information, or\n(iv) was independently developed by Recipient.\n2. Limitations. Subject to Section 3, neither Recipient nor any of its Representatives will directly or indirectly: (a) make use of any Confidential\nInformation, except for the specific purpose of considering, evaluating and negotiating a possible negotiated transaction between the Sonic and Rovi\n(a “Transaction”); or (b) disclose any Confidential Information to any other Person. Recipient will be liable and responsible for any breach of this\nAgreement by its Representatives and will, at its own expense, take actions necessary to restrain its Representatives from making any unauthorized\nuse or disclosure of any Confidential Information.\n3. Permitted Disclosures. Notwithstanding the limitations set forth in Section 2, Recipient may disclose Confidential Information to its\nRepresentatives, but only to the extent a Representative needs to know such Confidential Information for the purpose of helping Recipient in\nconnection with a possible Transaction, and has agreed to be bound by the provisions hereof. If Discloser notifies Recipient in writing prior to the\ndisclosure of certain Confidential Information that such Confidential Information may be disclosed only to specified Representatives of Recipient,\nthen Recipient shall not disclose such Confidential Information to any of its other Representatives. If Recipient or any of its Representatives is\nrequired by law or governmental regulation or by subpoena or other valid legal process to disclose any Confidential Information to any Person, then\nRecipient will immediately provide Discloser with written notice of the applicable law, regulation or process so that Discloser may seek a protective\norder or other appropriate remedy. Recipient and its Representatives will cooperate fully with Discloser in any attempt by Discloser to obtain any\nsuch protective order or other remedy. If Discloser elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy, then\nRecipient may disclose such Confidential Information to the extent, but only to the extent, legally required; provided that Recipient and its\nRepresentatives will use their reasonable efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is\ndisclosed.\n4. No Representations or Licenses. Neither party nor any of its Representatives will be under any obligation to make any particular Confidential\nInformation available to Recipient or any of Recipient’s Representatives or to supplement or update any Confidential Information previously\nfurnished. Neither party nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy\nor completeness of any Confidential Information, and neither party nor any of its Representatives will have any liability to Recipient or to any of\nRecipient’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions\ntherefrom. Only those representations and warranties, if any, that are included in any final definitive written agreement (a “Definitive Agreement”)\nthat provides for the consummation of the Transaction will have legal effect. Unless the parties enter into a Definitive Agreement, no agreement\nproviding for a Transaction will be deemed to exist between the parties, and neither party will be under any obligation to negotiate or enter into any\nsuch Transaction.\nNondisclosure Agreement\n1\nBy making Confidential Information or other information available hereunder, Discloser does not grant any license or other right under or with\nrespect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right.\n5. Term and Termination. This Agreement will continue for a period of one (1) year from the date hereof unless earlier terminated. Either party\nmay terminate this Agreement, with or without cause, upon ten (10) days’ prior written notice to the other. The confidentiality and other obligations\nregarding Confidential Information disclosed prior to such termination will survive for a period of three years after such disclosure. Upon\ntermination or at the request of Discloser at any time, Recipient and its Representatives will promptly deliver to Discloser any Confidential\nInformation obtained or possessed by Recipient or any of its Representatives; provided, however, that, in lieu of delivering to Discloser any written\nmaterials containing Confidential Information, Recipient may destroy such written materials and deliver to Discloser a certificate confirming their\ndestruction. Notwithstanding the delivery to Discloser (or the destruction by Recipient) of Confidential Information pursuant to this Section 5,\nRecipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement.\n6. Remedies. Each party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement, and that the non-\nbreaching party could suffer irreparable harm as a result of such breach. Accordingly, the non-breaching party will also be entitled to equitable relief,\nincluding injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement.\n7. Miscellaneous.\n(a) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege,\nwork product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit, investigation,\narbitration or dispute, it is acknowledged and agreed that Recipient and Discloser have a commonality of interest with respect to such action, suit,\ninvestigation, arbitration or dispute and that it is their mutual intention and understanding that the sharing of such materials and other information is\nnot intended to, and shall not waive or diminish the continued protection of any of such materials or other information under any applicable privilege\nor doctrine. Accordingly, all Confidential Information that is entitled to protection under any applicable privilege or doctrine shall remain entitled to\nprotection thereunder and shall be entitled to protection under the joint defense doctrine, and Recipient agrees to take measures necessary to\npreserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n(b) This Agreement and the transactions hereunder shall be governed by and construed and enforced in accordance with the laws of the State\nof California, excluding conflict of law rules and principles. In the event of any litigation between the parties, the prevailing party will be entitled to\nreasonable attorneys’ fees and all costs incurred in enforcing this Agreement.\n(c) This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes all\nother oral or written representations and understandings. The failure to enforce any right will not be deemed a waiver of such or any other rights,\nincluding the right to enforce a subsequent breach of the same obligation. If for any reason a court of competent jurisdiction finds any provision of\nthis Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to\neffect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. This Agreement may be amended or\nmodified only by a writing signed by the parties. This Agreement will be binding upon the successors and assigns of both parties.\n(d) This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but which collectively will\nconstitute one and the same instrument. For purposes hereof, a facsimile or electronic copy of this Agreement, including the signature page hereto,\nwill be deemed to be an original.\n(e) Each party agrees to comply with all export laws and regulations of the United States of America applicable to any information disclosed\nhereunder.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the date first\nset forth above.\nRovi Corporation\nSonic Solutions\nBy:\n/s/ Pamela Sergeeff\nBy:\n/s/ Paul F. Norris\nName: Pamela Sergeeff\nName: Paul F. Norris\nTitle:\nAuthorized Signatory\nTitle:\nEVP, CFO and General Counsel\nDate:\nNovember 2, 2010\nDate:\nNovember 2, 2010\nNotice Address:\nNotice Address:\nNondisclosure Agreement\n2\nRovi Corporation\nSonic Solutions\nAttn: General Counsel\nAttn: General Counsel\n2830 De La Cruz Boulevard\n7250 Redwood Boulevard, Suite 300\nSanta Clara, CA 95050\nNovato, CA 94945 USA\nFax: 408-567-1807\nFax: 415-893 -7011\nNondisclosure Agreement\n3
391495c97ad748997f9edf3e218541fb.pdf	effective_date jurisdiction party term	NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (“Agreement”) is made as of the later of the dates signed below (“Effective Date”) by and between\nMollyguard Corporation, a California corporation having a place of business at 208 Utah Street, San Francisco, Ca 94103 (“Discloser”), and\nJulia Steen (the “Recipient”).\nWHEREAS, this Agreement relates to disclosure of certain confidential and proprietary information by Discloser to Recipient for the\npurpose of furthering a potential relationship between the two parties; and whereas, both parties understand that Confidential Information\nreceived by Recipient is regarded by Discloser as valuable and shall only be used as set forth herein. NOW THEREFORE, the parties agree as\nfollows:\n1. Definition of Confidential Information. The term “Confidential Information” shall mean any and all information which is disclosed by\nDiscloser to Recipient, whether verbally, electronically, visually, or in a written or other tangible form that is not generally disclosed to the public\nby Discloser, including but not limited to, trade secrets, computer programs, software, software manuals and documentation, technology,\nsystems, source code, databases, applications, engine protocols, routines, models, displays and manuals, including, without limitation, the\nselection, coordination and arrangement of the contents thereof, formulas, data, inventions, methodologies, algorithms, techniques, processes,\nresearch activities and plans, marketing and sale plans, strategic plans, forecasts, training materials, pricing and pricing strategies, methods of\noperation, internal controls, security procedures, third party confidential information, customer lists and financial information.\n2. Duties Regarding Non-Disclosure. Recipient warrants and agrees to keep Confidential Information in strict confidence and shall not\ndisclose it to any third party. Recipient shall use Confidential Information in a legal and proper manner consistent with the terms of this\nAgreement and only in furtherance of the relationship between the parties. Recipient’s internal disclosure of Confidential Information shall be\nonly to those employees, contractors or agents having a need to know such information in connection with this Agreement and only insofar as\nsuch persons are bound by a nondisclosure agreement consistent with this Agreement. Recipient shall promptly notify Discloser of any\nunauthorized disclosure of use of Confidential Information by any person and/or entity.\n3. Limitations on Duties of Non-Disclosure. This Agreement imposes no obligation upon Recipient with respect to Confidential\nInformation which Recipient can establish by legally sufficient evidence that such information: (a) was, prior to receipt from Discloser, in the\npossession of, or was rightfully known by Recipient, without an obligation to maintain its confidentiality; (b) is or becomes generally known to\nthe public without violation of this Agreement or without a violation of an obligation of confidentiality owed to Discloser or a third party; (c) is\nobtained by Recipient in good faith from a third party having the right to disclose it without the use of or reference to Discloser’s Confidential\nInformation. Recipient may disclose Confidential Information in accordance with valid judicial or other governmental order, provided that\nRecipient shall have given Discloser reasonable notice and opportunity to object prior to such disclosure. Recipient will seek confidential\ntreatment of such information disclosed, and shall comply with any applicable protective order or equivalent.\n4. Ownership Interest in Confidential Information. Confidential Information is provided “as-is” and Discloser makes no representation or\nwarranty of any kind express or implied, with respect to the suitability, accuracy or non-infringement of third party rights. Discloser shall at all\ntimes retain sole and exclusive title to, ownership of, all right in and control over the use of all its Confidential Information. Both parties agree\nthat nothing in this Agreement is intended to grant any rights or license under any intellectual property rights of Discloser, nor shall this\nAgreement grant Recipient any rights in or to Discloser ’s Confidential Information, except the limited right to use such information in\naccordance with this Agreement.\n5. Miscellaneous. This agreement is the entire agreement between the parties and supersedes all prior understandings and agreements\nconcerning this subject matter. All additions or modifications to this Agreement must be in writing and signed by the authorized representatives\nof both parties. This Agreement shall be governed by the laws of the State of California, excluding choice of law principles. The Recipient will\ncomply strictly with all applicable law and regulations applicable to Discloser’s Confidential Information. Recipient acknowledges that monetary\ndamages may not be sufficient remedy for unauthorized use or disclosure of Confidential Information, or for breach of this Agreement, and\nDiscloser shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a\ncourt of competent jurisdiction.\nIN WITNESS WHEREOF, and intending to be legally bound hereby, and further intending to bind its employees, contractors and agents, the\nparties have executed this Agreement as of the Effective Date.\nACCEPTED BY:\nMOLLYGUARD CORPORATION\n30 Nov 2005\nDate\n/s/ Kevin Hartz\nSignature\nKevin Hartz, CEO\nPrinted Name and Title\nAddress:\n208 Utah Street\nSuite 404\nSan Francisco, CA 94103\nACCEPTED BY:\nJULIA STEEN\n30 Nov 2005\nDate\n/s/ Julia Steen\nSignature\nJulia Steen\nPrinted Name	NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (“Agreement”) is made as of the later of the dates signed below (“Effective Date”) by and between\nMollyguard Corporation, a California corporation having a place of business at 208 Utah Street, San Francisco, Ca 94103 (“Discloser”), and\nJulia Steen (the “Recipient”).\nWHEREAS, this Agreement relates to disclosure of certain confidential and proprietary information by Discloser to Recipient for the\npurpose of furthering a potential relationship between the two parties; and whereas, both parties understand that Confidential Information\nreceived by Recipient is regarded by Discloser as valuable and shall only be used as set forth herein. NOW THEREFORE, the parties agree as\nfollows:\n1. Definition of Confidential Information. The term “Confidential Information” shall mean any and all information which is disclosed by\nDiscloser to Recipient, whether verbally, electronically, visually, or in a written or other tangible form that is not generally disclosed to the public\nby Discloser, including but not limited to, trade secrets, computer programs, software, software manuals and documentation, technology,\nsystems, source code, databases, applications, engine protocols, routines, models, displays and manuals, including, without limitation, the\nselection, coordination and arrangement of the contents thereof, formulas, data, inventions, methodologies, algorithms, techniques, processes,\nresearch activities and plans, marketing and sale plans, strategic plans, forecasts, training materials, pricing and pricing strategies, methods of\noperation, internal controls, security procedures, third party confidential information, customer lists and financial information.\n2. Duties Regarding Non-Disclosure. Recipient warrants and agrees to keep Confidential Information in strict confidence and shall not\ndisclose it to any third party. Recipient shall use Confidential Information in a legal and proper manner consistent with the terms of this\nAgreement and only in furtherance of the relationship between the parties. Recipient’s internal disclosure of Confidential Information shall be\nonly to those employees, contractors or agents having a need to know such information in connection with this Agreement and only insofar as\nsuch persons are bound by a nondisclosure agreement consistent with this Agreement. Recipient shall promptly notify Discloser of any\nunauthorized disclosure of use of Confidential Information by any person and/or entity.\n3. Limitations on Duties of Non-Disclosure. This Agreement imposes no obligation upon Recipient with respect to Confidential\nInformation which Recipient can establish by legally sufficient evidence that such information: (a) was, prior to receipt from Discloser, in the\npossession of, or was rightfully known by Recipient, without an obligation to maintain its confidentiality; (b) is or becomes generally known to\nthe public without violation of this Agreement or without a violation of an obligation of confidentiality owed to Discloser or a third party; (c) is\nobtained by Recipient in good faith from a third party having the right to disclose it without the use of or reference to Discloser’s Confidential\nInformation. Recipient may disclose Confidential Information in accordance with valid judicial or other governmental order, provided that\nRecipient shall have given Discloser reasonable notice and opportunity to object prior to such disclosure. Recipient will seek confidential\ntreatment of such information disclosed, and shall comply with any applicable protective order or equivalent.\n4. Ownership Interest in Confidential Information. Confidential Information is provided “as-is” and Discloser makes no representation or\nwarranty of any kind express or implied, with respect to the suitability, accuracy or non-infringement of third party rights. Discloser shall at all\ntimes retain sole and exclusive title to, ownership of, all right in and control over the use of all its Confidential Information. Both parties agree\nthat nothing in this Agreement is intended to grant any rights or license under any intellectual property rights of Discloser, nor shall this\nAgreement grant Recipient any rights in or to Discloser’s Confidential Information, except the limited right to use such information in\naccordance with this Agreement.\n5. Miscellaneous. This agreement is the entire agreement between the parties and supersedes all prior understandings and agreements\nconcerning this subject matter. All additions or modifications to this Agreement must be in writing and signed by the authorized representatives\nof both parties. This Agreement shall be governed by the laws of the State of California, excluding choice of law principles. The Recipient will\ncomply strictly with all applicable law and regulations applicable to Discloser’s Confidential Information. Recipient acknowledges that monetary\ndamages may not be sufficient remedy for unauthorized use or disclosure of Confidential Information, or for breach of this Agreement, and\nDiscloser shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a\ncourt of competent jurisdiction.\nIN WITNESS WHEREQOF, and intending to be legally bound hereby, and further intending to bind its employees, contractors and agents, the\nparties have executed this Agreement as of the Effective Date.\nACCEPTED BY: ACCEPTED BY:\nMOLLYGUARD CORPORATION JULIA STEEN\n30 Nov 2005 30 Nov 2005\nDate Date\n/s/ Kevin Hartz /s/ Julia Steen\nSignature Signature\nKevin Hartz, CEO Julia Steen\nPrinted Name and Title Printed Name\nAddress:\n208 Utah Street\nSuite 404\nSan Francisco, CA 94103	NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement ("Agreement") is made as of the later of the dates signed below ("Effective Date") by and between\nMollyguard Corporation, a California corporation having a place of business at 208 Utah Street, San Francisco, Ca 94103 ("Discloser"), and\nJulia Steen (the "Recipient").\nWHEREAS, this Agreement relates to disclosure of certain confidential and proprietary information by Discloser to Recipient for the\npurpose of furthering a potential relationship between the two parties; and whereas, both parties understand that Confidential Information\nreceived by Recipient is regarded by Discloser as valuable and shall only be used as set forth herein. NOW THEREFORE, the parties agree as\nfollows:\n1. Definition of Confidential Information. The term "Confidential Information" shall mean any and all information which is disclosed by\nDiscloser to Recipient, whether verbally, electronically, visually, or in a written or other tangible form that is not generally disclosed to the public\nby Discloser, including but not limited to, trade secrets, computer programs, software, software manuals and documentation, technology,\nsystems, source code, databases, applications, engine protocols, routines, models, displays and manuals, including, without limitation,\nthe\nselection, coordination and arrangement of the contents thereof, formulas, data, inventions, methodologies, algorithms, techniques, processes,\nresearch activities and plans, marketing and sale plans, strategic plans, forecasts, training materials, pricing and pricing strategies, methods of\noperation, internal controls, security procedures, third party confidential information, customer lists and financial information.\n2. Duties Regarding Non-Disclosure. Recipient warrants and agrees to keep Confidential Information in strict confidence and shall not\ndisclose it to any third party. Recipient shall use Confidential Information in a legal and proper manner consistent with the terms of this\nAgreement and only in furtherance of the relationship between the parties. Recipient's internal disclosure of Confidential Information shall\nbe\nonly\nto those employees, contractors or agents having a need to know such information in connection with this Agreement and only insofar as\nsuch persons are bound by a nondisclosure agreement consistent with this Agreement. Recipient shall promptly notify Discloser of any\nunauthorized disclosure of use of Confidential Information by any person and/or entity.\n3. Limitations on Duties of Non-Disclosure. This Agreement imposes no obligation upon Recipient with respect to Confidential\nInformation which Recipient can establish by legally sufficient evidence that such information: (a) was, prior to receipt from Discloser, in the\npossession of, or was rightfully known by Recipient, without an obligation to maintain its confidentiality; (b) is or becomes generally known to\nthe public without violation of this Agreement or without a violation of an obligation of confidentiality owed to Discloser or a third party; (c) is\nobtained by Recipient in good faith from a third party having the right to disclose it without the use of or reference to Discloser's Confidential\nInformation. Recipient may disclose Confidential Information in accordance with valid judicial or other governmental order, provided that\nRecipient shall have given Discloser reasonable notice and opportunity to object prior to such disclosure. Recipient will seek confidential\ntreatment of such information disclosed, and shall comply with any applicable protective order or equivalent.\n4. Ownership Interest in Confidential Information Confidential Information is provided "as-is" and Discloser makes no representation or\nwarranty of any kind express or implied, with respect to the suitability, accuracy or non-infringement of third party rights. Discloser shall at all\ntimes retain sole and exclusive title to, ownership of, all right in and control over the use of all its Confidential Information. Both parties agree\nthat nothing in this Agreement is intended to grant any rights or license under any intellectual property rights of Discloser, nor shall this\nAgreement grant Recipient any rights in or to Discloser's Confidential Information, except the limited right to use such information in\naccordance with this Agreement.\n5. Miscellaneous. This agreement is the entire agreement between the parties and supersedes all prior understandings and agreements\nconcerning this subject matter. All additions or modifications to this Agreement must be in writing and signed by the authorized representatives\nof both parties. This Agreement shall be governed by the laws of the State of California, excluding choice of law principles. The Recipient will\ncomply strictly with all applicable law and regulations applicable to Discloser's Confidential Information. Recipient acknowledges that monetary\ndamages may not be sufficient remedy for unauthorized use or disclosure of Confidential Information, or for breach of this Agreement, and\nDiscloser shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a\ncourt of competent jurisdiction.\nIN WITNESS WHEREOF, and intending to be legally bound hereby, and further intending to bind its employees, contractors and agents, the\nparties have executed this Agreement as of the Effective Date.\nACCEPTED BY:\nACCEPTED BY:\nMOLLYGUARD CORPORATION\nJULIA STEEN\n30 Nov 2005\n30 Nov 2005\nDate\nDate\n/s/ Kevin Hartz\n/s/ Julia Steen\nSignature\nSignature\nKevin Hartz, CEO\nJulia Steen\nPrinted Name and Title\nPrinted Name\nAddress:\n208 Utah Street\nSuite 404\nSan Francisco, CA 94103	NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (“Agreement”) is made as of the later of the dates signed below (“Effective Date”) by and between\nMollyguard Corporation, a California corporation having a place of business at 208 Utah Street, San Francisco, Ca 94103 (“Discloser”), and\nJulia Steen (the “Recipient”).\nWHEREAS, this Agreement relates to disclosure of certain confidential and proprietary information by Discloser to Recipient for the\npurpose of furthering a potential relationship between the two parties; and whereas, both parties understand that Confidential Information\nreceived by Recipient is regarded by Discloser as valuable and shall only be used as set forth herein. NOW THEREFORE, the parties agree as\nfollows:\n1. Definition of Confidential Information. The term “Confidential Information” shall mean any and all information which is disclosed by\nDiscloser to Recipient, whether verbally, electronically, visually, or in a written or other tangible form that is not generally disclosed to the public\nby Discloser, including but not limited to, trade secrets, computer programs, software, software manuals and documentation, technology,\nsystems, source code, databases, applications, engine protocols, routines, models, displays and manuals, including, without limitation, the\nselection, coordination and arrangement of the contents thereof, formulas, data, inventions, methodologies, algorithms, techniques, processes,\nresearch activities and plans, marketing and sale plans, strategic plans, forecasts, training materials, pricing and pricing strategies, methods of\noperation, internal controls, security procedures, third party confidential information, customer lists and financial information.\n2. Duties Regarding Non-Disclosure. Recipient warrants and agrees to keep Confidential Information in strict confidence and shall not\ndisclose it to any third party. Recipient shall use Confidential Information in a legal and proper manner consistent with the terms of this\nAgreement and only in furtherance of the relationship between the parties. Recipient’s internal disclosure of Confidential Information shall be\nonly to those employees, contractors or agents having a need to know such information in connection with this Agreement and only insofar as\nsuch persons are bound by a nondisclosure agreement consistent with this Agreement. Recipient shall promptly notify Discloser of any\nunauthorized disclosure of use of Confidential Information by any person and/or entity.\n3. Limitations on Duties of Non-Disclosure. This Agreement imposes no obligation upon Recipient with respect to Confidential\nInformation which Recipient can establish by legally sufficient evidence that such information: (a) was, prior to receipt from Discloser, in the\npossession of, or was rightfully known by Recipient, without an obligation to maintain its confidentiality; (b) is or becomes generally known to\nthe public without violation of this Agreement or without a violation of an obligation of confidentiality owed to Discloser or a third party; (c) is\nobtained by Recipient in good faith from a third party having the right to disclose it without the use of or reference to Discloser’s Confidential\nInformation. Recipient may disclose Confidential Information in accordance with valid judicial or other governmental order, provided that\nRecipient shall have given Discloser reasonable notice and opportunity to object prior to such disclosure. Recipient will seek confidential\ntreatment of such information disclosed, and shall comply with any applicable protective order or equivalent.\n4. Ownership Interest in Confidential Information. Confidential Information is provided “as-is” and Discloser makes no representation or\nwarranty of any kind express or implied, with respect to the suitability, accuracy or non-infringement of third party rights. Discloser shall at all\ntimes retain sole and exclusive title to, ownership of, all right in and control over the use of all its Confidential Information. Both parties agree\nthat nothing in this Agreement is intended to grant any rights or license under any intellectual property rights of Discloser, nor shall this\nAgreement grant Recipient any rights in or to Discloser ’s Confidential Information, except the limited right to use such information in\naccordance with this Agreement.\n5. Miscellaneous. This agreement is the entire agreement between the parties and supersedes all prior understandings and agreements\nconcerning this subject matter. All additions or modifications to this Agreement must be in writing and signed by the authorized representatives\nof both parties. This Agreement shall be governed by the laws of the State of California, excluding choice of law principles. The Recipient will\ncomply strictly with all applicable law and regulations applicable to Discloser’s Confidential Information. Recipient acknowledges that monetary\ndamages may not be sufficient remedy for unauthorized use or disclosure of Confidential Information, or for breach of this Agreement, and\nDiscloser shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a\ncourt of competent jurisdiction.\nIN WITNESS WHEREOF, and intending to be legally bound hereby, and further intending to bind its employees, contractors and agents, the\nparties have executed this Agreement as of the Effective Date.\nACCEPTED BY:\nMOLLYGUARD CORPORATION\n30 Nov 2005\nDate\n/s/ Kevin Hartz\nSignature\nKevin Hartz, CEO\nPrinted Name and Title\nAddress:\n208 Utah Street\nSuite 404\nSan Francisco, CA 94103\nACCEPTED BY:\nJULIA STEEN\n30 Nov 2005\nDate\n/s/ Julia Steen\nSignature\nJulia Steen\nPrinted Name
394582f193249a17114927a2831c303c.pdf	effective_date jurisdiction party term	Mutual Non Disclosure Agreement\nThis Mutual Non Disclosure Agreement (this “Agreement”) is entered by and between Oramed Pharmaceuticals Inc., a Delaware Company,\nwith an office at 142 W. 57th St., New York, NY, USA, and its Israeli subsidiary, Oramed Ltd (together - the “Company”) and Joshua Hexter,\nan individual residing at 7550 Amherst Avenue, University City, MO, 63130 (the “Recipient”). The parties wish to discuss a possible business\nrelationship with each other, and in connection with the same each of the parties has been, and/or will be, provided with, and/or has access to\ncertain confidential information of the other party. With respect to any and all information disclosed by either party (“Disclosing Party”) to the\nother party (“Receiving Party”), the parties wish to ensure due protection of such information.\nTherefore, the parties hereby agree as follows:\n1. Receiving Party acknowledges that it may receive information regarding the activities and business of Disclosing Party, its parent companies,\nsubsidiaries and/or affiliates, all whether in oral, written, graphic, or machine-readable form, or in any other form, including, without limitation,\nconcepts, techniques, processes, methods, systems, designs, drawings, photographs, models, prototypes, computer programs, research materials,\nformulas, development or experimental work, work in progress, mask work, inventions, cost data, marketing plans, product plans, business\nstrategies, financial information, forecasts, personnel information and customer or supplier lists (collectively, “Confidential Information”). For\nthe avoidance of doubt, nothing herein shall be deemed to impose on Disclosing Party any duty or obligation to disclose any such information to\nReceiving Party, and such disclosure shall be at all times at Disclosing Party’s sole and absolute discretion. Furthermore, nothing herein shall be\ndeemed to create any representation that the Confidential Information, or any part of it, is whole, accurate or correct.\n2. Notwithstanding the aforesaid, information shall not be deemed as Confidential Information, for purposes of this Agreement, if Receiving\nParty can show documentary evidence that: (a) such information is in the public domain at the time of disclosure, or subsequently becomes part\nof the public domain, through no breach of Receiving Party of its obligations hereunder; or (b) such information is received by Receiving Party\nfrom a third party exempt from confidentiality undertakings; or (c) such information was in its possession at the time of disclosure, and\nReceiving Party so advised Disclosing Party in writing immediately upon disclosure; or (d) Receiving Party is compelled by court or government\naction pursuant to applicable law to disclose such information, provided, however, that Receiving Party gives Disclosing Party prompt notice\nthereof so that Disclosing Party may seek a protective order or other appropriate remedy, and further provided that in the event that such\nprotective order or other remedy is not obtained, Receiving Party shall furnish only that portion of the Confidential Information which is legally\nrequired, and shall exercise all efforts required to obtain confidential treatment for such information.\n3. The Confidential Information shall be used by Receiving Party for the sole purpose of evaluating its interest in future cooperation with\nDisclosing Party as set forth hereinabove, and, if the parties shall engage in any relationship - solely for the limited purposes of such engagement.\n6\n4. Receiving Party hereby acknowledges that the Confidential Information is highly confidential, and undertakes that, at all times, it: (i) shall\ntreat and maintain the Confidential Information as confidential, and hold all such Confidential Information in trust and in strict confidence,\nutilizing the same degree of care it uses to protect its own confidential information, but in no event less than a reasonable degree of care; (ii) shall\nnot disclose the Confidential Information to any third party, whether or not for consideration; (iii) shall not use the Confidential Information for\nany purpose other than the limited purpose mentioned in Section 3 above, or exploit the Confidential Information for its own benefit or for the\nbenefit of anyone else, without the prior written consent of Disclosing Party; and (iv) shall not make any copies of the Confidential Information\nwithout the prior written consent of Disclosing Party.\n5. Receiving Party undertakes to hold all Confidential Information locked and to disclose the Confidential Information only to those of its\nemployees and consultants (provided, with respect to such consultants, that disclosure to any consultant shall be made only after receipt of\nwritten consent of the Disclosing Party) who have to be so informed in order to ensure its proper evaluation (each, a “Representative”), and\nprovided that such Representatives are bound by written confidentiality and non-use undertakings towards Receiving Party which also apply to\nthe Confidential Information disclosed to Receiving Party under this Agreement. Receiving Party will be responsible for ensuring that the\nobligations of confidentiality and non-use contained herein are observed by all Representatives, and it represents that it has instituted policies and\nprocedures which provide such adequate protection for the Confidential Information. Without derogating from the aforesaid, Receiving Party\nshall bear full responsibility for any harm caused to Disclosing Party by disclosure to Representatives.\n6. To the extent that any portion of the Confidential Information contains proprietary and confidential notices or legends, Receiving Party shall\nnot remove such notices or legends, and shall produce the same on each and every copy of the Confidential Information produced by it.\n7. Upon Disclosing Party’s first demand, Receiving Party shall return to Disclosing Party all Confidential Information, including all records,\nproducts and samples received, and any copies thereof, as well as any notes, memoranda or other writings or documentation which contain or\npertain to the Confidential Information or any portion thereof, whether in its possession or under its control, and shall erase all electronic records\nthereof, and shall so confirm to Disclosing Party in writing.\n8. The Confidential Information and all right, title and interest therein will remain at all times the exclusive property of Disclosing Party its\nparent companies, subsidiaries and/or affiliates. Nothing hereunder may be construed as granting to Receiving Party any right, warranty or\nlicense by implication or otherwise under any patent, copyright, know-how or design rights, or other form of protection of industrial or\nintellectual property, or as creating any obligation on the part of Disclosing Party to enter into any business relationship whatsoever or to offer for\nsale any service or product.\n7\n9. Receiving Party recognizes, acknowledges and agrees that Disclosing Party may be irreparably harmed if Receiving Party’s obligations and\nundertakings herein are not specifically enforced, and that Disclosing Party would not have an adequate remedy at law in the event of actual or\nthreatened violation by Receiving Party of such obligations and undertakings. Therefore, Receiving Party agrees that Disclosing Party shall be\nentitled to seek and obtain an injunction, without bond, or to an appropriate decree of specific performance or any other appropriate equitable\nrelief.\n10. All of Disclosing Party’s rights hereunder and all of Receiving Party’s obligations and undertakings hereunder shall be in full effect for the\nentire term of this Agreement, and for an unlimited period of time after its termination, cancellation or expiration for any reason whatsoever, so\nlong as any information disclosed by Disclosing Party to Receiving Party under this Agreement remains Confidential Information of Disclosing\nParty. Without derogating from the aforesaid, should the parties engage in any relationship, all of Disclosing Party’s rights hereunder and all of\nReceiving Party’s obligations and undertakings hereunder shall be in full effect for as long as the parties shall engage in such relationship.\n11. The Recipient acknowledges that the Company is a publicly traded company. As such, the Recipient agrees not to use any Confidential\nInformation or any other non-public information in connection with the purchase or sale of the securities of the Company in violation of United\nStates securities laws.\n12. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof, and\nsupersedes all prior written or oral agreements with respect thereto. This Agreement may not be modified except by written instrument signed by\na duly authorized representative of each party hereto. No failure, delay of forbearance of either party in exercising any power or right hereunder\nshall in any way restrict or diminish such party’s rights and powers under this Agreement, or operate as a waiver of any breach or\nnonperformance by either party of any terms of conditions hereof. In the event that it shall be determined under any applicable law that a certain\nprovision set forth in this Agreement is invalid or unenforceable, such determination shall not affect the remaining provisions of this Agreement\nunless the purpose of this Agreement is substantially frustrated thereby. This Agreement shall be governed by the laws of the State of New York\nand any dispute arising out of or in connection with this Agreement is hereby submitted to the sole and exclusive jurisdiction of the competent\ncourts in New York.\n/s/ Nadav Kidron\n/s/ Joshua Hexter\nOramed Pharmaceuticals Inc.\nJoshua Hexter\nDate: November 8, 2018\nBy:\nTitle:\nDate:\n8	Mutual Non Disclosure Agreement\nThis Mutual Non Disclosure Agreement (this “Agreement”) is entered by and between Oramed Pharmaceuticals Inc., a Delaware Company,\nwith an office at 142 W. 57th St., New York, NY, USA, and its Israeli subsidiary, Oramed Ltd (together - the “Company”) and Joshua Hexter,\nan individual residing at 7550 Amherst Avenue, University City, MO, 63130 (the “Recipient”). The parties wish to discuss a possible business\nrelationship with each other, and in connection with the same each of the parties has been, and/or will be, provided with, and/or has access to\ncertain confidential information of the other party. With respect to any and all information disclosed by either party (“Disclosing Party”) to the\nother party (“Receiving Party”), the parties wish to ensure due protection of such information.\nTherefore, the parties hereby agree as follows:\n1. Receiving Party acknowledges that it may receive information regarding the activities and business of Disclosing Party, its parent companies,\nsubsidiaries and/or affiliates, all whether in oral, written, graphic, or machine-readable form, or in any other form, including, without limitation,\nconcepts, techniques, processes, methods, systems, designs, drawings, photographs, models, prototypes, computer programs, research materials,\nformulas, development or experimental work, work in progress, mask work, inventions, cost data, marketing plans, product plans, business\nstrategies, financial information, forecasts, personnel information and customer or supplier lists (collectively, “Confidential Information”). For\nthe avoidance of doubt, nothing herein shall be deemed to impose on Disclosing Party any duty or obligation to disclose any such information to\nReceiving Party, and such disclosure shall be at all times at Disclosing Party’s sole and absolute discretion. Furthermore, nothing herein shall be\ndeemed to create any representation that the Confidential Information, or any part of it, is whole, accurate or correct.\n2. Notwithstanding the aforesaid, information shall not be deemed as Confidential Information, for purposes of this Agreement, if Receiving\nParty can show documentary evidence that: (a) such information is in the public domain at the time of disclosure, or subsequently becomes part\nof the public domain, through no breach of Receiving Party of its obligations hereunder; or (b) such information is received by Receiving Party\nfrom a third party exempt from confidentiality undertakings; or (c) such information was in its possession at the time of disclosure, and\nReceiving Party so advised Disclosing Party in writing immediately upon disclosure; or (d) Receiving Party is compelled by court or government\naction pursuant to applicable law to disclose such information, provided, however, that Receiving Party gives Disclosing Party prompt notice\nthereof so that Disclosing Party may seek a protective order or other appropriate remedy, and further provided that in the event that such\nprotective order or other remedy is not obtained, Receiving Party shall furnish only that portion of the Confidential Information which is legally\nrequired, and shall exercise all efforts required to obtain confidential treatment for such information.\n3. The Confidential Information shall be used by Receiving Party for the sole purpose of evaluating its interest in future cooperation with\nDisclosing Party as set forth hereinabove, and, if the parties shall engage in any relationship - solely for the limited purposes of such engagement.\n4. Receiving Party hereby acknowledges that the Confidential Information is highly confidential, and undertakes that, at all times, it: (i) shall\ntreat and maintain the Confidential Information as confidential, and hold all such Confidential Information in trust and in strict confidence,\nutilizing the same degree of care it uses to protect its own confidential information, but in no event less than a reasonable degree of care; (ii) shall\nnot disclose the Confidential Information to any third party, whether or not for consideration; (iii) shall not use the Confidential Information for\nany purpose other than the limited purpose mentioned in Section 3 above, or exploit the Confidential Information for its own benefit or for the\nbenefit of anyone else, without the prior written consent of Disclosing Party; and (iv) shall not make any copies of the Confidential Information\nwithout the prior written consent of Disclosing Party.\n5. Receiving Party undertakes to hold all Confidential Information locked and to disclose the Confidential Information only to those of its\nemployees and consultants (provided, with respect to such consultants, that disclosure to any consultant shall be made only after receipt of\nwritten consent of the Disclosing Party) who have to be so informed in order to ensure its proper evaluation (each, a “Representative”), and\nprovided that such Representatives are bound by written confidentiality and non-use undertakings towards Receiving Party which also apply to\nthe Confidential Information disclosed to Receiving Party under this Agreement. Receiving Party will be responsible for ensuring that the\nobligations of confidentiality and non-use contained herein are observed by all Representatives, and it represents that it has instituted policies and\nprocedures which provide such adequate protection for the Confidential Information. Without derogating from the aforesaid, Receiving Party\nshall bear full responsibility for any harm caused to Disclosing Party by disclosure to Representatives.\n6. To the extent that any portion of the Confidential Information contains proprietary and confidential notices or legends, Receiving Party shall\nnot remove such notices or legends, and shall produce the same on each and every copy of the Confidential Information produced by it.\n7. Upon Disclosing Party’s first demand, Receiving Party shall return to Disclosing Party all Confidential Information, including all records,\nproducts and samples received, and any copies thereof, as well as any notes, memoranda or other writings or documentation which contain or\npertain to the Confidential Information or any portion thereof, whether in its possession or under its control, and shall erase all electronic records\nthereof, and shall so confirm to Disclosing Party in writing.\n8. The Confidential Information and all right, title and interest therein will remain at all times the exclusive property of Disclosing Party its\nparent companies, subsidiaries and/or affiliates. Nothing hereunder may be construed as granting to Receiving Party any right, warranty or\nlicense by implication or otherwise under any patent, copyright, know-how or design rights, or other form of protection of industrial or\nintellectual property, or as creating any obligation on the part of Disclosing Party to enter into any business relationship whatsoever or to offer for\nsale any service or product.\n9. Receiving Party recognizes, acknowledges and agrees that Disclosing Party may be irreparably harmed if Receiving Party’s obligations and\nundertakings herein are not specifically enforced, and that Disclosing Party would not have an adequate remedy at law in the event of actual or\nthreatened violation by Receiving Party of such obligations and undertakings. Therefore, Receiving Party agrees that Disclosing Party shall be\nentitled to seek and obtain an injunction, without bond, or to an appropriate decree of specific performance or any other appropriate equitable\nrelief.\n10. All of Disclosing Party’s rights hereunder and all of Receiving Party’s obligations and undertakings hereunder shall be in full effect for the\nentire term of this Agreement, and for an unlimited period of time after its termination, cancellation or expiration for any reason whatsoever, so\nlong as any information disclosed by Disclosing Party to Receiving Party under this Agreement remains Confidential Information of Disclosing\nParty. Without derogating from the aforesaid, should the parties engage in any relationship, all of Disclosing Party’s rights hereunder and all of\nReceiving Party’s obligations and undertakings hereunder shall be in full effect for as long as the parties shall engage in such relationship.\n11. The Recipient acknowledges that the Company is a publicly traded company. As such, the Recipient agrees not to use any Confidential\nInformation or any other non-public information in connection with the purchase or sale of the securities of the Company in violation of United\nStates securities laws.\n12. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof, and\nsupersedes all prior written or oral agreements with respect thereto. This Agreement may not be modified except by written instrument signed by\na duly authorized representative of each party hereto. No failure, delay of forbearance of either party in exercising any power or right hereunder\nshall in any way restrict or diminish such party’s rights and powers under this Agreement, or operate as a waiver of any breach or\nnonperformance by either party of any terms of conditions hereof. In the event that it shall be determined under any applicable law that a certain\nprovision set forth in this Agreement is invalid or unenforceable, such determination shall not affect the remaining provisions of this Agreement\nunless the purpose of this Agreement is substantially frustrated thereby. This Agreement shall be governed by the laws of the State of New York\nand any dispute arising out of or in connection with this Agreement is hereby submitted to the sole and exclusive jurisdiction of the competent\ncourts in New York.\n/s/ Nadav Kidron /s/ Joshua Hexter\nOramed Pharmaceuticals Inc. Joshua Hexter\nDate: November 8, 2018\nBy:\nTitle:\nDate:	Mutual Non Disclosure Agreement\nThis Mutual Non Disclosure Agreement (this "Agreement") is entered by and between Oramed Pharmaceuticals Inc., a Delaware Company,\nwith an office at 142 W. 57th St., New York, NY, USA, and its Israeli subsidiary, Oramed Ltd (together the "Company") and Joshua Hexter,\nan individual residing at 7550 Amherst Avenue, University City, MO, 63130 (the "Recipient"). The parties wish to discuss a possible business\nrelationship with each other, and in connection with the same each of the parties has been, and/or will be, provided with, and/or has access to\ncertain confidential information of the other party. With respect to any and all information disclosed by either party ("Disclosing Party") to the\nother party ("Receiving Party"), the parties wish to ensure due protection of such information.\nTherefore, the parties hereby agree as follows:\n1. Receiving Party acknowledges that it may receive information regarding the activities and business of Disclosing Party, its parent companies,\nsubsidiaries and/or affiliates, all whether in oral, written, graphic, or machine-readable form, or in any other form, including, without limitation,\nconcepts, techniques, processes, methods, systems, designs, drawings, photographs, models, prototypes, computer programs, research materials,\nformulas, development or experimental work, work in progress, mask work, inventions, cost data, marketing plans, product plans, business\nstrategies, financial information, forecasts, personnel information and customer or supplier lists (collectively, "Confidential Information"). For\nthe avoidance of doubt, nothing herein shall be deemed to impose on Disclosing Party any duty or obligation to disclose any such information\nto\nReceiving Party, and such disclosure shall be at all times at Disclosing Party's sole and absolute discretion. Furthermore, nothing herein shall be\ndeemed to create any representation that the Confidential Information, or any part of it, is whole, accurate or correct.\n2. Notwithstanding the aforesaid, information shall not be deemed as Confidential Information, for purposes of this Agreement, if Receiving\nParty can show documentary evidence that: (a) such information is in the public domain at the time of disclosure, or subsequently becomes part\nof the public domain, through no breach of Receiving Party of its obligations hereunder; or (b) such information is received by Receiving Party\nfrom a third party exempt from confidentiality undertakings; or (c) such information was in its possession at the time of disclosure, and\nReceiving Party so advised Disclosing Party in writing immediately upon disclosure; or (d) Receiving Party is compelled by court or government\naction pursuant to applicable law to disclose such information, provided, however, that Receiving Party gives Disclosing Party prompt notice\nthereof so that Disclosing Party may seek a protective order or other appropriate remedy, and further provided that in the event that such\nprotective order or other remedy is not obtained, Receiving Party shall furnish only that portion of the Confidential Information which is legally\nrequired, and shall exercise all efforts required to obtain confidential treatment for such information.\n3. The Confidential Information shall be used by Receiving Party for the sole purpose of evaluating its interest in future cooperation with\nDisclosing Party as set forth hereinabove, and, if the parties shall engage in any relationship solely for the limited purposes of such engagement.\n6\n4. Receiving Party hereby acknowledges that the Confidentia Information is highly confidential, and undertakes that, at all times, it: (i) shall\ntreat and maintain the Confidential Information as confidential, and hold all such Confidential Information in trust and in strict confidence,\nutilizing the same degree of care it uses to protect its own confidential information, but in no event less than a reasonable degree of care; (ii) shall\nnot disclose the Confidential Information to any third party, whether or not for consideration; (iii) shall not use the Confidential Information for\nany purpose other than the limited purpose mentioned in Section 3 above, or exploit the Confidential Information for its own benefit or for the\nbenefit of anyone else, without the prior written consent of Disclosing Party; and (iv) shall not make any copies of the Confidential Information\nwithout the prior written consent of Disclosing Party.\n5. Receiving Party undertakes to hold all Confidentia Information locked and to disclose the Confidentia Information only to those of its\nemployees and consultants (provided, with respect to such consultants, that disclosure to any consultant shall be made only after receipt of\nwritten consent of the Disclosing Party) who have to be so informed in order to ensure its proper evaluation (each, a "Representative"), and\nprovided that such Representatives are bound by written confidentiality and non-use undertakings towards Receiving Party which also apply\nto\nthe Confidential Information disclosed to Receiving Party under this Agreement. Receiving Party will be responsible for ensuring that the\nobligations of confidentiality and non-use contained herein are observed by all Representatives, and it represents that it has instituted policies and\nprocedures which provide such adequate protection for the Confidential Information. Without derogating from the aforesaid, Receiving Party\nshall bear full responsibility for any harm caused to Disclosing Party by disclosure to Representatives.\n6. To the extent that any portion of the Confidential Information contains proprietary and confidential notices or legends, Receiving Party shall\nnot remove such notices or legends, and shall produce the same on each and every copy of the Confidential Information produced by it.\n7. Upon Disclosing Party's first demand, Receiving Party shall return to Disclosing Party all Confidential Information, including all records,\nproducts and samples received, and any copies thereof, as well as any notes, memoranda or other writings or documentation which contain or\npertain to the Confidential Information or any portion thereof, whether in its possession or under its control, and shall erase all electronic records\nthereof, and shall so confirm to Disclosing Party in writing.\n8. The Confidential Information and all right, title and interest therein will remain at all times the exclusive property of Disclosing Party its\nparent companies, subsidiaries and/or affiliates. Nothing hereunder may be construed as granting to Receiving Party any right, warranty\nor\nlicense by implication or otherwise under any patent, copyright, know-how or design rights, or other form of protection of industrial or\nintellectual property, or as creating any obligation on the part of Disclosing Party to enter into any business relationship whatsoever or to offer\nfor\nsale any service or product.\n7\n9. Receiving Party recognizes, acknowledges and agrees that Disclosing Party may be irreparably harmed if Receiving Party's obligations and\nundertakings herein are not specifically enforced, and that Disclosing Party would not have an adequate remedy at law in the event of actual\nor\nthreatened violation by Receiving Party of such obligations and undertakings. Therefore, Receiving Party agrees that Disclosing Party shall\nbe\nentitled to seek and obtain an injunction, without bond, or to an appropriate decree of specific performance or any other appropriate equitable\nrelief.\n10. All of Disclosing Party's rights hereunder and all of Receiving Party's obligations and undertakings hereunder shall be in full effect for the\nentire term of this Agreement, and for an unlimited period of time after its termination, cancellation or expiration for any reason whatsoever, so\nlong as any information disclosed by Disclosing Party to Receiving Party under this Agreement remains Confidential Information of Disclosing\nParty. Without derogating from the aforesaid, should the parties engage in any relationship, all of Disclosing Party's rights hereunder and all of\nReceiving Party's obligations and undertakings hereunder shall be in full effect for as long as the parties shall engage in such relationship.\n11. The Recipient acknowledges that the Company is a publicly traded company. As such, the Recipient agrees not to use any Confidential\nInformation or any other non-public information in connection with the purchase or sale of the securities of the Company in violation of United\nStates securities laws.\n12. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof, and\nsupersedes all prior written or oral agreements with respect thereto. This Agreement may not be modified except by written instrument signed by\na duly authorized representative of each party hereto. No failure, delay of forbearance of either party in exercising any power or right hereunder\nshall in any way restrict or diminish such party's rights and powers under this Agreement, or operate as a waiver of any breach or\nnonperformance by either party of any terms of conditions hereof. In the event that it shall be determined under any applicable law that a certain\nprovision set forth in this Agreement is invalid or unenforceable, such determination shall not affect the remaining provisions of this Agreement\nunless the purpose of this Agreement is substantially frustrated thereby. This Agreement shall be governed by the laws of the State of New York\nand any dispute arising out of or in connection with this Agreement is hereby submitted to the sole and exclusive jurisdiction of the competent\ncourts in New York.\n/s/ Nadav Kidron\n/s/ Joshua Hexter\nOramed Pharmaceuticals Inc.\nJoshua Hexter\nDate: November 8, 2018\nBy:\nTitle:\nDate:\n8	Mutual Non Disclosure Agreement\nThis Mutual Non Disclosure Agreement (this “Agreement”) is entered by and between Oramed Pharmaceuticals Inc., a Delaware Company,\nwith an office at 142 W. 57th St., New York, NY, USA, and its Israeli subsidiary, Oramed Ltd (together - the “Company”) and Joshua Hexter,\nan individual residing at 7550 Amherst Avenue, University City, MO, 63130 (the “Recipient”). The parties wish to discuss a possible business\nrelationship with each other, and in connection with the same each of the parties has been, and/or will be, provided with, and/or has access to\ncertain confidential information of the other party. With respect to any and all information disclosed by either party (“Disclosing Party”) to the\nother party (“Receiving Party”), the parties wish to ensure due protection of such information.\nTherefore, the parties hereby agree as follows:\n1. Receiving Party acknowledges that it may receive information regarding the activities and business of Disclosing Party, its parent companies,\nsubsidiaries and/or affiliates, all whether in oral, written, graphic, or machine-readable form, or in any other form, including, without limitation,\nconcepts, techniques, processes, methods, systems, designs, drawings, photographs, models, prototypes, computer programs, research materials,\nformulas, development or experimental work, work in progress, mask work, inventions, cost data, marketing plans, product plans, business\nstrategies, financial information, forecasts, personnel information and customer or supplier lists (collectively, “Confidential Information”). For\nthe avoidance of doubt, nothing herein shall be deemed to impose on Disclosing Party any duty or obligation to disclose any such information to\nReceiving Party, and such disclosure shall be at all times at Disclosing Party’s sole and absolute discretion. Furthermore, nothing herein shall be\ndeemed to create any representation that the Confidential Information, or any part of it, is whole, accurate or correct.\n2. Notwithstanding the aforesaid, information shall not be deemed as Confidential Information, for purposes of this Agreement, if Receiving\nParty can show documentary evidence that: (a) such information is in the public domain at the time of disclosure, or subsequently becomes part\nof the public domain, through no breach of Receiving Party of its obligations hereunder; or (b) such information is received by Receiving Party\nfrom a third party exempt from confidentiality undertakings; or (c) such information was in its possession at the time of disclosure, and\nReceiving Party so advised Disclosing Party in writing immediately upon disclosure; or (d) Receiving Party is compelled by court or government\naction pursuant to applicable law to disclose such information, provided, however, that Receiving Party gives Disclosing Party prompt notice\nthereof so that Disclosing Party may seek a protective order or other appropriate remedy, and further provided that in the event that such\nprotective order or other remedy is not obtained, Receiving Party shall furnish only that portion of the Confidential Information which is legally\nrequired, and shall exercise all efforts required to obtain confidential treatment for such information.\n3. The Confidential Information shall be used by Receiving Party for the sole purpose of evaluating its interest in future cooperation with\nDisclosing Party as set forth hereinabove, and, if the parties shall engage in any relationship - solely for the limited purposes of such engagement.\n6\n4. Receiving Party hereby acknowledges that the Confidential Information is highly confidential, and undertakes that, at all times, it: (i) shall\ntreat and maintain the Confidential Information as confidential, and hold all such Confidential Information in trust and in strict confidence,\nutilizing the same degree of care it uses to protect its own confidential information, but in no event less than a reasonable degree of care; (ii) shall\nnot disclose the Confidential Information to any third party, whether or not for consideration; (iii) shall not use the Confidential Information for\nany purpose other than the limited purpose mentioned in Section 3 above, or exploit the Confidential Information for its own benefit or for the\nbenefit of anyone else, without the prior written consent of Disclosing Party; and (iv) shall not make any copies of the Confidential Information\nwithout the prior written consent of Disclosing Party.\n5. Receiving Party undertakes to hold all Confidential Information locked and to disclose the Confidential Information only to those of its\nemployees and consultants (provided, with respect to such consultants, that disclosure to any consultant shall be made only after receipt of\nwritten consent of the Disclosing Party) who have to be so informed in order to ensure its proper evaluation (each, a “Representative”), and\nprovided that such Representatives are bound by written confidentiality and non-use undertakings towards Receiving Party which also apply to\nthe Confidential Information disclosed to Receiving Party under this Agreement. Receiving Party will be responsible for ensuring that the\nobligations of confidentiality and non-use contained herein are observed by all Representatives, and it represents that it has instituted policies and\nprocedures which provide such adequate protection for the Confidential Information. Without derogating from the aforesaid, Receiving Party\nshall bear full responsibility for any harm caused to Disclosing Party by disclosure to Representatives.\n6. To the extent that any portion of the Confidential Information contains proprietary and confidential notices or legends, Receiving Party shall\nnot remove such notices or legends, and shall produce the same on each and every copy of the Confidential Information produced by it.\n7. Upon Disclosing Party’s first demand, Receiving Party shall return to Disclosing Party all Confidential Information, including all records,\nproducts and samples received, and any copies thereof, as well as any notes, memoranda or other writings or documentation which contain or\npertain to the Confidential Information or any portion thereof, whether in its possession or under its control, and shall erase all electronic records\nthereof, and shall so confirm to Disclosing Party in writing.\n8. The Confidential Information and all right, title and interest therein will remain at all times the exclusive property of Disclosing Party its\nparent companies, subsidiaries and/or affiliates. Nothing hereunder may be construed as granting to Receiving Party any right, warranty or\nlicense by implication or otherwise under any patent, copyright, know-how or design rights, or other form of protection of industrial or\nintellectual property, or as creating any obligation on the part of Disclosing Party to enter into any business relationship whatsoever or to offer for\nsale any service or product.\n7\n9. Receiving Party recognizes, acknowledges and agrees that Disclosing Party may be irreparably harmed if Receiving Party’s obligations and\nundertakings herein are not specifically enforced, and that Disclosing Party would not have an adequate remedy at law in the event of actual or\nthreatened violation by Receiving Party of such obligations and undertakings. Therefore, Receiving Party agrees that Disclosing Party shall be\nentitled to seek and obtain an injunction, without bond, or to an appropriate decree of specific performance or any other appropriate equitable\nrelief.\n10. All of Disclosing Party’s rights hereunder and all of Receiving Party’s obligations and undertakings hereunder shall be in full effect for the\nentire term of this Agreement, and for an unlimited period of time after its termination, cancellation or expiration for any reason whatsoever, so\nlong as any information disclosed by Disclosing Party to Receiving Party under this Agreement remains Confidential Information of Disclosing\nParty. Without derogating from the aforesaid, should the parties engage in any relationship, all of Disclosing Party’s rights hereunder and all of\nReceiving Party’s obligations and undertakings hereunder shall be in full effect for as long as the parties shall engage in such relationship.\n11. The Recipient acknowledges that the Company is a publicly traded company. As such, the Recipient agrees not to use any Confidential\nInformation or any other non-public information in connection with the purchase or sale of the securities of the Company in violation of United\nStates securities laws.\n12. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof, and\nsupersedes all prior written or oral agreements with respect thereto. This Agreement may not be modified except by written instrument signed by\na duly authorized representative of each party hereto. No failure, delay of forbearance of either party in exercising any power or right hereunder\nshall in any way restrict or diminish such party’s rights and powers under this Agreement, or operate as a waiver of any breach or\nnonperformance by either party of any terms of conditions hereof. In the event that it shall be determined under any applicable law that a certain\nprovision set forth in this Agreement is invalid or unenforceable, such determination shall not affect the remaining provisions of this Agreement\nunless the purpose of this Agreement is substantially frustrated thereby. This Agreement shall be governed by the laws of the State of New York\nand any dispute arising out of or in connection with this Agreement is hereby submitted to the sole and exclusive jurisdiction of the competent\ncourts in New York.\n/s/ Nadav Kidron\n/s/ Joshua Hexter\nOramed Pharmaceuticals Inc.\nJoshua Hexter\nDate: November 8, 2018\nBy:\nTitle:\nDate:\n8
3b0882c838d53a60484626c17837bc66.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 11 dex99d2.htm NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nCVS Caremark Corporation\nJuly 8, 2008\nLongs Drug Stores Corporation\n141 North Civic Drive\nWalnut Creek, California 94596\nAttention: William F. Rainey, Esq.\nLadies and Gentlemen:\nIn connection with our mutual consideration of a possible transaction (the “Transaction”) between CVS Caremark Corporation (“we”, “us” or\n“CVS”) and Longs Drug Stores Corporation (the “Company”), it is expected that the Company or its Representatives (as defined below) will furnish\nCVS and its Representatives with certain information about the business, operations and affairs of the Company and its subsidiaries. Such\ninformation (whether oral, written, electronic or otherwise), regardless of the form in which it is provided, together with any notes, analyses,\ncompilations, studies, interpretations or other documents prepared by CVS or its Representatives which contain or otherwise reflect such\ninformation, is hereinafter referred to as “Confidential Information,” except that “Confidential Information” does not include any information that\n(i) was publicly available prior to the date of this agreement or hereafter becomes publicly available without any violation of this agreement on the\npart of CVS or any of its Representatives (ii) was available to CVS or its Representatives on a non-confidential basis prior to its disclosure to CVS or\nits Representatives by the Company or its Representatives or (iii) becomes available to CVS and its Representatives from a person other than the\nCompany and its Representatives who is not, to the best of our knowledge, subject to any legally binding obligation to keep such information\nconfidential. As used in this agreement, “person” means an individual or entity and the “Representatives” of any person means the affiliates,\nofficers, directors, employees, attorneys, accountants, financial advisors and other agents or representatives of such person.\nWe agree that all Confidential Information will be kept confidential and will not be disclosed, in whole or in part, by CVS or any of its\nRepresentatives to any person other than those of our Representatives who need to know such Confidential Information for the purpose of evaluating\na possible Transaction. CVS will be responsible for any breach of this agreement by us or any of your Representatives.\nWithout the prior written consent of the other party, each party agrees that neither such party nor any of its Representatives will disclose to any\nperson (other than to its Representatives that have a need to know such information) the fact that any Confidential Information has been made\navailable hereunder, that discussions or negotiations are taking place concerning a possible Transaction, or any of the terms, conditions or other facts\nwith respect to any possible Transaction or other transaction with the Company, including the status thereof, except as otherwise required by law or\nthe applicable rules of any national securities exchange.\nCVS agrees that it will not use or allow the use of any Confidential Information for any purpose except to evaluate the possible Transaction.\nCVS will inform the Company promptly of any determination by CVS not to proceed with its consideration of the possible Transaction. If\nCVS determines not to proceed with consideration of the possible Transaction, or promptly following CVS’ receipt of a request from the Company,\nCVS shall elect either to destroy or to return to the Company all Confidential Information provided to CVS or its Representatives, except for that\nportion of the Confidential Information that consists of analyses, compilations, studies or other documents prepared by CVS or its Representatives.\nThat portion of the Confidential Information that consists of analyses, compilations, studies or other documents prepared by CVS or its\nRepresentatives will, to the extent legally permitted, be destroyed immediately upon the Company’s request. Upon the request of the Company, CVS\nwill provide the Company with prompt written confirmation of CVS’ compliance with the first two sentences of this paragraph. Notwithstanding the\nforegoing, CVS’ legal department may maintain a copy of the Confidential Information in its restricted access files for actual or anticipated\nlitigation, regulatory compliance or corporate record keeping purposes.\nIf CVS or anyone to whom CVS transmits Confidential Information is requested or required (by oral questions, interrogatories, requests for\ninformation or documents, subpoenas, civil investigative demand or similar process) to disclose any of the Confidential Information, CVS will\nprovide the Company with prompt notice so that the Company may seek a protective order or other appropriate remedy and/or waive CVS’\ncompliance with the provisions of this agreement. If such protective order or other remedy is not obtained, or the Company waives CVS’ compliance\nwith the provisions of this agreement, CVS will furnish only that portion of the Confidential Information that is legally required to be furnished, in\nthe opinion of its counsel, and will exercise its commercially reasonable efforts to obtain a protective order or other reliable assurance that\nconfidential treatment will be accorded the Confidential Information.\nEach party agrees that for a period beginning on the date of this agreement and ending eighteen months after the date hereof, neither such party\nnor any of its affiliates (nor any person acting on behalf of or in concert with such party or any of its affiliates) will, without the prior written consent\nof the other party, solicit for employment any management level employee (excluding, for avoidance of doubt, any pharmacist or other store level\nemployee) employed by the other party or its subsidiaries, provided that the foregoing provision will not restrict (i) general advertisements for\nemployment conducted\nby such party or any agent (including placement and recruitment agencies) not specifically targeted at such persons or hiring any such person in\nresponse to any such general advertisement, (ii) hiring a person who contacts a party on his or her own initiative without any direct or indirect\nencouragement by a party or (iii) soliciting or hiring a person whose employment was terminated by the other party.\nNo failure or delay by a party in exercising any right, power or privilege hereunder shall operate as a waiver thereof or preclude any other or\nfurther exercise thereof or the exercise of any other right, power or privilege hereunder.\nEach party agrees that a party would be irreparably injured by a breach of this agreement by the other party or its Representatives and that, in\nsuch event, the non-breaching party shall be entitled, in addition to any and all other remedies, to injunctive relief and specific performance.\nThe Company and its Representatives make no representations or warranties, express or implied, with respect to the Confidential Information,\nexcept for any representations and warranties that may be expressly made to a purchaser in a definitive purchase agreement when, as, and if finally\nexecuted, and subject to such limitations and restrictions as may be specified in such agreement. CVS agrees that neither the Company nor any of its\nRepresentatives shall have any liability to CVS or any of its Representatives resulting from the selection or use of the Confidential Information by\nCVS or its Representatives or any errors therein or omission therefrom. CVS understands and agrees that, unless and until a definitive agreement\nbetween the Company and CVS with respect to the proposed Transaction has been executed and delivered, neither the Company nor CVS will be\nunder any legal obligation of any kind whatsoever with respect to any transaction (except for the express obligations set forth in this agreement).\nAll proprietary and intellectual property rights in and to the Confidential Information shall remain the sole property of the Company, and\nnothing in this agreement shall be construed in any way to grant to CVS or its Representatives any express or implied option, license or other right,\ntitle or interest in or to any Confidential Information, or to any intellectual property rights embodied in such Confidential Information.\nIf any term or provision of this agreement or any application hereof shall be invalid and unenforceable, the remainder of this agreement and\nany other application of such term or provision shall not be affected thereby.\nThis agreement may be modified or waived only by an instrument signed by the parties hereto. This agreement may not be assigned by any\nparty hereto without the express prior written consent of the other party hereto.\nThis agreement shall be governed by, and construed in accordance with, the laws of the State of New York.\nThis agreement will terminate on the third anniversary of the date hereof. This agreement may be executed and delivered by facsimile. Any\nfacsimile signatures shall have the same legal effect as manual signatures.\nPlease confirm your agreement with the foregoing by signing in the space indicated below, and return a signed copy of this agreement to us.\nVery truly yours,\nCVS Caremark Corporation\nBy: /s/ Douglas A. Sgarro\nName: Douglas A. Sgarro\nTitle: Executive Vice President and Chief\nLegal Officer\nAccepted and agreed:\nLongs Drug Stores Corporation\nBy: /s/ William F. Rainey\nName: William F. Rainey\nTitle: Senior Vice President, Secretary and\nGeneral Counsel	EX-99.(D)(2) 11 dex99d2.htm NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nCVS Caremark Corporation\nJuly 8, 2008\nLongs Drug Stores Corporation\n141 North Civic Drive\nWalnut Creek, California 94596\nAttention: William F. Rainey, Esq.\nLadies and Gentlemen:\n»\nIn connection with our mutual consideration of a possible transaction (the “Transaction”) between CVS Caremark Corporation (“we”, “us” or\n“CVS”) and Longs Drug Stores Corporation (the “Company”), it is expected that the Company or its Representatives (as defined below) will furnish\nCVS and its Representatives with certain information about the business, operations and affairs of the Company and its subsidiaries. Such\ninformation (whether oral, written, electronic or otherwise), regardless of the form in which it is provided, together with any notes, analyses,\ncompilations, studies, interpretations or other documents prepared by CVS or its Representatives which contain or otherwise reflect such\ninformation, is hereinafter referred to as “Confidential Information,” except that “Confidential Information” does not include any information that\n(i) was publicly available prior to the date of this agreement or hereafter becomes publicly available without any violation of this agreement on the\npart of CVS or any of its Representatives (ii) was available to CVS or its Representatives on a non-confidential basis prior to its disclosure to CVS or\nits Representatives by the Company or its Representatives or (iii) becomes available to CVS and its Representatives from a person other than the\nCompany and its Representatives who is not, to the best of our knowledge, subject to any legally binding obligation to keep such information\nconfidential. As used in this agreement, “person” means an individual or entity and the “Representatives” of any person means the affiliates,\nofficers, directors, employees, attorneys, accountants, financial advisors and other agents or representatives of such person.\nWe agree that all Confidential Information will be kept confidential and will not be disclosed, in whole or in part, by CVS or any of its\nRepresentatives to any person other than those of our Representatives who need to know such Confidential Information for the purpose of evaluating\na possible Transaction. CVS will be responsible for any breach of this agreement by us or any of your Representatives.\nWithout the prior written consent of the other party, each party agrees that neither such party nor any of its Representatives will disclose to any\nperson (other than to its Representatives that have a need to know such information) the fact that any Confidential Information has been made\navailable hereunder, that discussions or negotiations are taking place concerning a possible Transaction, or any of the terms, conditions or other facts\nwith respect to any possible Transaction or other transaction with the Company, including the status thereof, except as otherwise required by law or\nthe applicable rules of any national securities exchange.\nCVS agrees that it will not use or allow the use of any Confidential Information for any purpose except to evaluate the possible Transaction.\nCVS will inform the Company promptly of any determination by CVS not to proceed with its consideration of the possible Transaction. If\nCVS determines not to proceed with consideration of the possible Transaction, or promptly following CVS’ receipt of a request from the Company,\nCVS shall elect either to destroy or to return to the Company all Confidential Information provided to CVS or its Representatives, except for that\nportion of the Confidential Information that consists of analyses, compilations, studies or other documents prepared by CVS or its Representatives.\nThat portion of the Confidential Information that consists of analyses, compilations, studies or other documents prepared by CVS or its\nRepresentatives will, to the extent legally permitted, be destroyed immediately upon the Company’s request. Upon the request of the Company, CVS\nwill provide the Company with prompt written confirmation of CVS’ compliance with the first two sentences of this paragraph. Notwithstanding the\nforegoing, CVS’ legal department may maintain a copy of the Confidential Information in its restricted access files for actual or anticipated\nlitigation, regulatory compliance or corporate record keeping purposes.\nIf CVS or anyone to whom CVS transmits Confidential Information is requested or required (by oral questions, interrogatories, requests for\ninformation or documents, subpoenas, civil investigative demand or similar process) to disclose any of the Confidential Information, CVS will\nprovide the Company with prompt notice so that the Company may seek a protective order or other appropriate remedy and/or waive CVS’\ncompliance with the provisions of this agreement. If such protective order or other remedy is not obtained, or the Company waives CVS’ compliance\nwith the provisions of this agreement, CVS will furnish only that portion of the Confidential Information that is legally required to be furnished, in\nthe opinion of its counsel, and will exercise its commercially reasonable efforts to obtain a protective order or other reliable assurance that\nconfidential treatment will be accorded the Confidential Information.\nEach party agrees that for a period beginning on the date of this agreement and ending eighteen months after the date hereof, neither such party\nnor any of its affiliates (nor any person acting on behalf of or in concert with such party or any of its affiliates) will, without the prior written consent\nof the other party, solicit for employment any management level employee (excluding, for avoidance of doubt, any pharmacist or other store level\nemployee) employed by the other party or its subsidiaries, provided that the foregoing provision will not restrict (i) general advertisements for\nemployment conducted\nby such party or any agent (including placement and recruitment agencies) not specifically targeted at such persons or hiring any such person in\nresponse to any such general advertisement, (ii) hiring a person who contacts a party on his or her own initiative without any direct or indirect\nencouragement by a party or (iii) soliciting or hiring a person whose employment was terminated by the other party.\nNo failure or delay by a party in exercising any right, power or privilege hereunder shall operate as a waiver thereof or preclude any other or\nfurther exercise thereof or the exercise of any other right, power or privilege hereunder.\nEach party agrees that a party would be irreparably injured by a breach of this agreement by the other party or its Representatives and that, in\nsuch event, the non-breaching party shall be entitled, in addition to any and all other remedies, to injunctive relief and specific performance.\nThe Company and its Representatives make no representations or warranties, express or implied, with respect to the Confidential Information,\nexcept for any representations and warranties that may be expressly made to a purchaser in a definitive purchase agreement when, as, and if finally\nexecuted, and subject to such limitations and restrictions as may be specified in such agreement. CVS agrees that neither the Company nor any of its\nRepresentatives shall have any liability to CVS or any of its Representatives resulting from the selection or use of the Confidential Information by\nCVS or its Representatives or any errors therein or omission therefrom. CVS understands and agrees that, unless and until a definitive agreement\nbetween the Company and CVS with respect to the proposed Transaction has been executed and delivered, neither the Company nor CVS will be\nunder any legal obligation of any kind whatsoever with respect to any transaction (except for the express obligations set forth in this agreement).\nAll proprietary and intellectual property rights in and to the Confidential Information shall remain the sole property of the Company, and\nnothing in this agreement shall be construed in any way to grant to CV'S or its Representatives any express or implied option, license or other right,\ntitle or interest in or to any Confidential Information, or to any intellectual property rights embodied in such Confidential Information.\nIf any term or provision of this agreement or any application hereof shall be invalid and unenforceable, the remainder of this agreement and\nany other application of such term or provision shall not be affected thereby.\nThis agreement may be modified or waived only by an instrument signed by the parties hereto. This agreement may not be assigned by any\nparty hereto without the express prior written consent of the other party hereto.\nThis agreement shall be governed by, and construed in accordance with, the laws of the State of New York.\nThis agreement will terminate on the third anniversary of the date hereof. This agreement may be executed and delivered by facsimile. Any\nfacsimile signatures shall have the same legal effect as manual signatures.\nPlease confirm your agreement with the foregoing by signing in the space indicated below, and return a signed copy of this agreement to us.\nVery truly yours,\nCVS Caremark Corporation\nBy: /s/ Douglas A. Sgarro\nName: Douglas A. Sgarro\nTitle:  Executive Vice President and Chief\nLegal Officer\nAccepted and agreed:\nLongs Drug Stores Corporation\nBy:  /s/ William F. Rainey\nName: William F. Rainey\nTitle:  Senior Vice President, Secretary and\nGeneral Counsel	EX-99.(D)(2) 11 dex99d2.htm NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nCVS Caremark Corporation\nJuly 8, 2008\nLongs Drug Stores Corporation\n141 North Civic Drive\nWalnut Creek, California 94596\nAttention: William F. Rainey, Esq\nLadies and Gentlemen:\nIn connection with our mutual consideration of a possible transaction (the "Transaction") between CVS Caremark Corporation ("we", "us" or\n"CVS") and Longs Drug Stores Corporation (the "Company"), it is expected that the Company or its Representatives (as defined below) will furnish\nCVS and its Representatives with certain information about the business, operations and affairs of the Company and its subsidiaries. Such\ninformation (whether oral, written, electronic or otherwise), regardless of the form in which it is provided, together with any notes, analyses,\ncompilations, studies, interpretations or other documents prepared by CVS or its Representatives which contain or otherwise reflect such\ninformation is hereinafter referred to as "Confidential Information," except that "Confidential Information" does not include any information that\n(i) was publicly available prior to the date of this agreement or hereafter becomes publicly available without any violation of this agreement on the\npart of CVS or any of its Representatives (ii) was available to CVS or its Representatives on a non-confidential basis prior to its disclosure to CVS or\nits Representatives by the Company or its Representatives or (iii) becomes available to CVS and its Representatives from a person other than the\nCompany and its Representatives who is not, to the best of our knowledge, subject to any legally binding obligation to keep such information\nconfidential. As used in this agreement, "person" means an individual or entity and the "Representatives" of any person means the affiliates,\nofficers, directors, employees, attorneys, accountants, financial advisors and other agents or representatives of such person.\nWe agree that all Confidential Information will be kept confidential and will not be disclosed, in whole or in part, by CVS or any of its\nRepresentatives to any person other than those of our Representatives who need to know such Confidential Information for the purpose of evaluating\na possible Transaction. CVS will be responsible for any breach of this agreement by us or any of your Representatives.\nWithout the prior written consent of the other party, each party agrees that neither such party nor any of its Representatives will disclose to any\nperson (other than to its Representatives that have a need to know such information) the fact that any Confidential Information has been made\navailable hereunder, that discussions or negotiations are taking place concerning a possible Transaction, or any of the terms, conditions or other facts\nwith respect to any possible Transaction or other transaction with the Company, including the status thereof, except as otherwise required by law or\nthe applicable rules of any national securities exchange.\nCVS agrees that it will not use or allow the use of any Confidential Information for any purpose except to evaluate the possible Transaction.\nCVS will inform the Company promptly of any determination by CVS not to proceed with its consideration of the possible Transaction. If\nCVS determines not to proceed with consideration of the possible Transaction, or promptly following CVS' receipt of a request from the Company,\nCVS shall elect either to destroy or to return to the Company all Confidential Information provided to CVS or its Representatives, except for that\nportion of the Confidential Information that consists of analyses, compilations, studies or other documents prepared by CVS or its Representatives.\nThat portion of the Confidential Information that consists of analyses, compilations, studies or other documents prepared by CVS or its\nRepresentatives will, to the extent legally permitted, be destroyed immediately upon the Company's request. Upon the request of the Company, CVS\nwill provide the Company with prompt written confirmation of CVS' compliance with the first two sentences of this paragraph. Notwithstanding the\nforegoing, CVS' legal department may maintain a copy of the Confidential Information in its restricted access files for actual or anticipated\nlitigation, regulatory compliance or corporate record keeping purposes.\nIf CVS or anyone to whom CVS transmits Confidential Information is requested or required (by oral questions, interrogatories, requests for\ninformation or documents, subpoenas, civil investigative demand or similar process) to disclose any of the Confidential Information, CVS will\nprovide the Company with prompt notice so that the Company may seek a protective order or other appropriate remedy and/or waive CVS'\ncompliance with the provisions of this agreement. If such protective order or other remedy is not obtained, or the Company waives CVS' compliance\nwith the provisions of this agreement, CVS will furnish only that portion of the Confidential Information that is legally required to be furnished, in\nthe opinion of its counsel, and will exercise its commercially reasonable efforts to obtain a protective order or other reliable assurance that\nconfidential treatment will be accorded the Confidential Information.\nEach party agrees that for a period beginning on the date of this agreement and ending eighteen months after the date hereof, neither such party\nnor any of its affiliates (nor any person acting on behalf of or in concert with such party or any of its affiliates) will, without the prior written consent\nof the other party, solicit for employment any management level employee (excluding, for avoidance of doubt, any pharmacist or other store level\nemployee) employed by the other party or its subsidiaries, provided that the foregoing provision will not restrict (i) general advertisements for\nemployment conducted\nby such party or any agent (including placement and recruitment agencies) not specifically targeted at such persons or hiring any such person in\nresponse to any such general advertisement, (ii) hiring a person who contacts a party on his or her own initiative without any direct or indirect\nencouragement by a party or (iii) soliciting or hiring a person whose employment was terminated by the other party.\nNo failure or delay by a party in exercising any right, power or privilege hereunder shall operate as a waiver thereof or preclude any other\nor\nfurther exercise thereof or the exercise of any other right, power or privilege hereunder.\nEach party agrees that a party would be irreparably injured by a breach of this agreement by the other party or its Representatives and that, in\nsuch event, the non-breaching party shall be entitled, in addition to any and all other remedies, to injunctive relief and specific performance.\nThe Company and its Representatives make no representations or warranties, express or implied, with respect to the Confidential Information,\nexcept for any representations and warranties that may be expressly made to a purchaser in a definitive purchase agreement when, as, and if finally\nexecuted, and subject to such limitations and restrictions as may be specified in such agreement. CVS agrees that neither the Company nor any of\nits\nRepresentatives shall have any liability to CVS or any of its Representatives resulting from the selection or use of the Confidential Information by\nCVS\nor its Representatives or any errors therein or omission therefrom. CVS understands and agrees that, unless and until a definitive agreement\nbetween the Company and CVS with respect to the proposed Transaction has been executed and delivered, neither the Company nor CVS will\nbe\nunder any legal obligation of any kind whatsoever with respect to any transaction (except for the express obligations set forth in this agreement).\nAll proprietary and intellectual property rights in and to the Confidential Information shall remain the sole property of the Company, and\nnothing in this agreement shall be construed in any way to grant to CVS or its Representatives any express or implied option, license or other right,\ntitle or interest in or to any Confidential Information, or to any intellectual property rights embodied in such Confidential Information.\nIf any term or provision of this agreement or any application hereof shall be invalid and unenforceable, the remainder of this agreement and\nany other application of such term or provision shall not be affected thereby.\nThis agreement may be modified or waived only by an instrument signed by the parties hereto. This agreement may not be assigned by any\nparty hereto without the express prior written consent of the other party hereto.\nThis agreement shall be governed by, and construed in accordance with, the laws of the State of New York.\nThis agreement will terminate on the third anniversary of the date hereof. This agreement may be executed and delivered by facsimile. Any\nfacsimile signatures shall have the same legal effect as manual signatures.\nPlease confirm your agreement with the foregoing by signing in the space indicated below, and return a signed copy of this agreement to\nus.\nVery truly yours,\nCVS Caremark Corporation\nBy:\n/s/ Douglas A. Sgarro\nName: Douglas A. Sgarro\nTitle:\nExecutive Vice President and Chief\nLegal Officer\nAccepted and agreed:\nLongs Drug Stores Corporation\nBy:\n/s/ William F. Rainey\nName: William F. Rainey\nTitle:\nSenior Vice President, Secretary and\nGeneral Counsel	EX-99.(D)(2) 11 dex99d2.htm NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nCVS Caremark Corporation\nJuly 8, 2008\nLongs Drug Stores Corporation\n141 North Civic Drive\nWalnut Creek, California 94596\nAttention: William F. Rainey, Esq.\nLadies and Gentlemen:\nIn connection with our mutual consideration of a possible transaction (the “Transaction”) between CVS Caremark Corporation (“we”, “us” or\n“CVS”) and Longs Drug Stores Corporation (the “Company”), it is expected that the Company or its Representatives (as defined below) will furnish\nCVS and its Representatives with certain information about the business, operations and affairs of the Company and its subsidiaries. Such\ninformation (whether oral, written, electronic or otherwise), regardless of the form in which it is provided, together with any notes, analyses,\ncompilations, studies, interpretations or other documents prepared by CVS or its Representatives which contain or otherwise reflect such\ninformation, is hereinafter referred to as “Confidential Information,” except that “Confidential Information” does not include any information that\n(i) was publicly available prior to the date of this agreement or hereafter becomes publicly available without any violation of this agreement on the\npart of CVS or any of its Representatives (ii) was available to CVS or its Representatives on a non-confidential basis prior to its disclosure to CVS or\nits Representatives by the Company or its Representatives or (iii) becomes available to CVS and its Representatives from a person other than the\nCompany and its Representatives who is not, to the best of our knowledge, subject to any legally binding obligation to keep such information\nconfidential. As used in this agreement, “person” means an individual or entity and the “Representatives” of any person means the affiliates,\nofficers, directors, employees, attorneys, accountants, financial advisors and other agents or representatives of such person.\nWe agree that all Confidential Information will be kept confidential and will not be disclosed, in whole or in part, by CVS or any of its\nRepresentatives to any person other than those of our Representatives who need to know such Confidential Information for the purpose of evaluating\na possible Transaction. CVS will be responsible for any breach of this agreement by us or any of your Representatives.\nWithout the prior written consent of the other party, each party agrees that neither such party nor any of its Representatives will disclose to any\nperson (other than to its Representatives that have a need to know such information) the fact that any Confidential Information has been made\navailable hereunder, that discussions or negotiations are taking place concerning a possible Transaction, or any of the terms, conditions or other facts\nwith respect to any possible Transaction or other transaction with the Company, including the status thereof, except as otherwise required by law or\nthe applicable rules of any national securities exchange.\nCVS agrees that it will not use or allow the use of any Confidential Information for any purpose except to evaluate the possible Transaction.\nCVS will inform the Company promptly of any determination by CVS not to proceed with its consideration of the possible Transaction. If\nCVS determines not to proceed with consideration of the possible Transaction, or promptly following CVS’ receipt of a request from the Company,\nCVS shall elect either to destroy or to return to the Company all Confidential Information provided to CVS or its Representatives, except for that\nportion of the Confidential Information that consists of analyses, compilations, studies or other documents prepared by CVS or its Representatives.\nThat portion of the Confidential Information that consists of analyses, compilations, studies or other documents prepared by CVS or its\nRepresentatives will, to the extent legally permitted, be destroyed immediately upon the Company’s request. Upon the request of the Company, CVS\nwill provide the Company with prompt written confirmation of CVS’ compliance with the first two sentences of this paragraph. Notwithstanding the\nforegoing, CVS’ legal department may maintain a copy of the Confidential Information in its restricted access files for actual or anticipated\nlitigation, regulatory compliance or corporate record keeping purposes.\nIf CVS or anyone to whom CVS transmits Confidential Information is requested or required (by oral questions, interrogatories, requests for\ninformation or documents, subpoenas, civil investigative demand or similar process) to disclose any of the Confidential Information, CVS will\nprovide the Company with prompt notice so that the Company may seek a protective order or other appropriate remedy and/or waive CVS’\ncompliance with the provisions of this agreement. If such protective order or other remedy is not obtained, or the Company waives CVS’ compliance\nwith the provisions of this agreement, CVS will furnish only that portion of the Confidential Information that is legally required to be furnished, in\nthe opinion of its counsel, and will exercise its commercially reasonable efforts to obtain a protective order or other reliable assurance that\nconfidential treatment will be accorded the Confidential Information.\nEach party agrees that for a period beginning on the date of this agreement and ending eighteen months after the date hereof, neither such party\nnor any of its affiliates (nor any person acting on behalf of or in concert with such party or any of its affiliates) will, without the prior written consent\nof the other party, solicit for employment any management level employee (excluding, for avoidance of doubt, any pharmacist or other store level\nemployee) employed by the other party or its subsidiaries, provided that the foregoing provision will not restrict (i) general advertisements for\nemployment conducted\nby such party or any agent (including placement and recruitment agencies) not specifically targeted at such persons or hiring any such person in\nresponse to any such general advertisement, (ii) hiring a person who contacts a party on his or her own initiative without any direct or indirect\nencouragement by a party or (iii) soliciting or hiring a person whose employment was terminated by the other party.\nNo failure or delay by a party in exercising any right, power or privilege hereunder shall operate as a waiver thereof or preclude any other or\nfurther exercise thereof or the exercise of any other right, power or privilege hereunder.\nEach party agrees that a party would be irreparably injured by a breach of this agreement by the other party or its Representatives and that, in\nsuch event, the non-breaching party shall be entitled, in addition to any and all other remedies, to injunctive relief and specific performance.\nThe Company and its Representatives make no representations or warranties, express or implied, with respect to the Confidential Information,\nexcept for any representations and warranties that may be expressly made to a purchaser in a definitive purchase agreement when, as, and if finally\nexecuted, and subject to such limitations and restrictions as may be specified in such agreement. CVS agrees that neither the Company nor any of its\nRepresentatives shall have any liability to CVS or any of its Representatives resulting from the selection or use of the Confidential Information by\nCVS or its Representatives or any errors therein or omission therefrom. CVS understands and agrees that, unless and until a definitive agreement\nbetween the Company and CVS with respect to the proposed Transaction has been executed and delivered, neither the Company nor CVS will be\nunder any legal obligation of any kind whatsoever with respect to any transaction (except for the express obligations set forth in this agreement).\nAll proprietary and intellectual property rights in and to the Confidential Information shall remain the sole property of the Company, and\nnothing in this agreement shall be construed in any way to grant to CVS or its Representatives any express or implied option, license or other right,\ntitle or interest in or to any Confidential Information, or to any intellectual property rights embodied in such Confidential Information.\nIf any term or provision of this agreement or any application hereof shall be invalid and unenforceable, the remainder of this agreement and\nany other application of such term or provision shall not be affected thereby.\nThis agreement may be modified or waived only by an instrument signed by the parties hereto. This agreement may not be assigned by any\nparty hereto without the express prior written consent of the other party hereto.\nThis agreement shall be governed by, and construed in accordance with, the laws of the State of New York.\nThis agreement will terminate on the third anniversary of the date hereof. This agreement may be executed and delivered by facsimile. Any\nfacsimile signatures shall have the same legal effect as manual signatures.\nPlease confirm your agreement with the foregoing by signing in the space indicated below, and return a signed copy of this agreement to us.\nVery truly yours,\nCVS Caremark Corporation\nBy: /s/ Douglas A. Sgarro\nName: Douglas A. Sgarro\nTitle: Executive Vice President and Chief\nLegal Officer\nAccepted and agreed:\nLongs Drug Stores Corporation\nBy: /s/ William F. Rainey\nName: William F. Rainey\nTitle: Senior Vice President, Secretary and\nGeneral Counsel
3d8896809d808aaf152cf2f982851908.pdf	effective_date jurisdiction party term	Nondisclosure Agreement\nThis Agreement is entered into by and between Information Spectrum, Inc. (hereinafter “ISI”), a corporation with offices at 7611 Little River\nTurnpike, Annandale, Virginia 22003, and SmartMetric, Inc., a corporation with offices at 67 Wall Street, Level 22, New York, New York 10005\n(hereinafter “SmartMetric”).\n1.\n“Proprietary Information” is defined as information that the disclosing party at the time of disclosure identified in writing as Proprietary\nInformation by means of a proprietary or confidential legend, marking, stamp, or other positive written notice identifying the information to be\nproprietary or confidential. In order for information disclosed orally or visually by a party to this Agreement to be considered Proprietary\nInformation protected hereunder, the disclosing party shall identify the information as proprietary at the time of the disclosure and, within ten\n(10) days after such oral or visual disclosure, reduce the subject matter of disclosure to writing, properly stamped with a proprietary legend,\nmarking, stamp or other positive written notice, and submit it to the receiving party.\n2.\nProprietary Information disclosed hereunder may be used only for mutual benefit of SmartMetric and ISI in conducting discussions and\nexchanging information relating to fingerprint biometric, biometric smartcard with fingerprint storage, high-capacity memory cards, contact and\ncontactless identification cards, and the processing of information on these identification cards, and then only in strict accordance with the terms\nof this Agreement.\n3.\nIt is agreed that for a period of five (5) years following the receipt of Proprietary Information, each party will use such information only\nfor the purpose(s) set out in Paragraph 2 above and shall take reasonable efforts to preserve the confidentiality of such Proprietary Information,\nand prevent disclosure thereof to third parties. Each party agrees that it will use the same reasonable efforts to protect the other’s Proprietary\nInformation as are used to protect its own, but, in any event, not less than reasonable care.\n4.\nThe obligation to protect Proprietary Information, and the liability for unauthorized disclosure or use of Proprietary Information, shall not\napply with respect to: such information that is now available or becomes available to the public without breach of this Agreement; information\nlawfully received without restrictions from other sources, including the U.S . Government; information published or disclosed by the disclosing\nparty to others, including the U.S. Government, without restriction; information developed by the receiving party independent of and without use\nof the information disclosed by the disclosing party; or information that is required to be disclosed pursuant to any law or judicial or\ngovernmental demand, requirement or order, provided that the receiving party shall give reasonable notice to the disclosing party of such order to\nenable the disclosing party to seek legal protection of the Proprietary Information.\n5.\nThe parties agree that disclosures of Proprietary Information shall be restricted to those individuals directly participating in the effort set\nout in Paragraph 2 who have a need to know been made aware of and consent to abide by the restrictions contained herein concerning the\ndisclosure and use of such information. The receiving party agrees to provide the disclosing party a list of those individuals to whom such\ndisclosures have been made upon request of the disclosing party.\n6.\nThis Agreement shall expire two (2) years after the effective date of this Agreement, but may be terminated earlier by either party giving\nthirty (30) days notice in writing to the other party of its intention to terminate. Termination shall not, however, affect the rights and obligations\ncontained herein with respect to Proprietary Information disclosed hereunder prior to termination.\n7.\nUpon termination or expiration of this Agreement or upon the written request of either party at any time, each party will, within a\nreasonable period of time thereafter, not to exceed thirty (30) days, return all Proprietary Information received from the other party and copies\nmade thereof by the receiving party under this Agreement, or certify by written memorandum that all such Proprietary Information has been\ndestroyed.\n8.\nExcept as expressly provided herein, neither the execution and delivery of this Agreement nor the furnishing of any Proprietary\nInformation shall be construed as granting either expressly or by implication, estoppel or otherwise, any license under any copyright, invention,\nimprovement, discovery or patent, or trademark now or hereafter owned or controlled by a party disclosing Proprietary Information hereunder.\n9.\nThis Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one party without the prior written\napproval of the other party hereto.\n10.\nEach party warrants that it has the right to disclose the Proprietary Information disclosed to the other party hereunder for the purpose set\nout in Paragraph 2 above.\n11.\nNeither party shall export, transmit or otherwise convey any Proprietary Information disclose under this Agreement in contravention of\nany laws, ordinances or regulations of the U.S. Government.\n12.\nThe laws of the Commonwealth of Virginia shall govern this Agreement, without regard to its conflict of law rules.\n13.\nThis Agreement shall not be construed as a teaming, joint venture, or other such arrangement; rather, the parties hereto expressly agree\nthat this Agreement is for the purpose of protection of Proprietary Information only.\n14.\nNeither party has an obligation to supply Proprietary Information hereunder.\n15.\nThe parties agree that the terms and conditions of this Agreement are reasonable and necessary for the protection of Proprietary\nInformation and to prevent damage or loss to ISI and SmartMetric. Each party agrees that any breach or threatened breach by it, of the foregoing\nterms and conditions, will cause irreparable injury to the other party for which there is no adequate remedy at law. Therefore, each party\nexpressly agrees that the party that may be harmed shall be entitled, in addition to any other remedies available, to injunctive or other equitable\nrelief to require specific performance or to prevent a breach of this Agreement.\n16.\nThis Agreement contains the entire understanding between the parties relative to the protection of Proprietary Information and\nsupersedes all prior and collateral communications, reports, and understandings between the parties in respect thereto. No change, modification,\nalteration, or addition to any provision hereof shall be binding unless in writing and signed by authorized representatives of both parties.\n17.\nAll notices shall be in writing, shall bear the addresses of the parties to this Agreement and shall be dispatched by certified or registered\nmail, return receipt requested. A notice sent by facsimile shall be effective when received, provided that it is promptly confirmed by certified or\nregistered mail, return receipt requested.\nIN WITNESS WHEREOF, the parties hereto have caused this Nondisclosure Agreement to be executed as of the date and year indicated below.\nINFORMATION SPECTRUM, INC.\nSMARTMETRIC, INC.\nBy: /s/ William T. Alsbrooks\nBy: /s/ Colin Hendrick\nName: William T. Alsbrooks\nName: Colin Hendrick\nTitle: Executive Vice President\nTitle: President and CEO\nDate: August 5, 2003\nDate: August 5, 2003	Nondisclosure Agreement\nThis Agreement is entered into by and between Information Spectrum, Inc. (hereinafter “ISI”), a corporation with offices at 7611 Little River\nTurnpike, Annandale, Virginia 22003, and SmartMetric, Inc., a corporation with offices at 67 Wall Street, Level 22, New York, New York 10005\n(hereinafter “SmartMetric”).\n1. “Proprietary Information” is defined as information that the disclosing party at the time of disclosure identified in writing as Proprietary\nInformation by means of a proprietary or confidential legend, marking, stamp, or other positive written notice identifying the information to be\nproprietary or confidential. In order for information disclosed orally or visually by a party to this Agreement to be considered Proprietary\nInformation protected hereunder, the disclosing party shall identify the information as proprietary at the time of the disclosure and, within ten\n(10) days after such oral or visual disclosure, reduce the subject matter of disclosure to writing, properly stamped with a proprietary legend,\nmarking, stamp or other positive written notice, and submit it to the receiving party.\n2. Proprietary Information disclosed hereunder may be used only for mutual benefit of SmartMetric and ISI in conducting discussions and\nexchanging information relating to fingerprint biometric, biometric smartcard with fingerprint storage, high-capacity memory cards, contact and\ncontactless identification cards, and the processing of information on these identification cards, and then only in strict accordance with the terms\nof this Agreement.\n3. It is agreed that for a period of five (5) years following the receipt of Proprietary Information, each party will use such information only\nfor the purpose(s) set out in Paragraph 2 above and shall take reasonable efforts to preserve the confidentiality of such Proprietary Information,\nand prevent disclosure thereof to third parties. Each party agrees that it will use the same reasonable efforts to protect the other’s Proprietary\nInformation as are used to protect its own, but, in any event, not less than reasonable care.\n4. The obligation to protect Proprietary Information, and the liability for unauthorized disclosure or use of Proprietary Information, shall not\napply with respect to: such information that is now available or becomes available to the public without breach of this Agreement; information\nlawfully received without restrictions from other sources, including the U.S. Government; information published or disclosed by the disclosing\nparty to others, including the U.S. Government, without restriction; information developed by the receiving party independent of and without use\nof the information disclosed by the disclosing party; or information that is required to be disclosed pursuant to any law or judicial or\ngovernmental demand, requirement or order, provided that the receiving party shall give reasonable notice to the disclosing party of such order to\nenable the disclosing party to seek legal protection of the Proprietary Information.\n5. The parties agree that disclosures of Proprietary Information shall be restricted to those individuals directly participating in the effort set\nout in Paragraph 2 who have a need to know been made aware of and consent to abide by the restrictions contained herein concerning the\ndisclosure and use of such information. The receiving party agrees to provide the disclosing party a list of those individuals to whom such\ndisclosures have been made upon request of the disclosing party.\n6. This Agreement shall expire two (2) years after the effective date of this Agreement, but may be terminated earlier by either party giving\nthirty (30) days notice in writing to the other party of its intention to terminate. Termination shall not, however, affect the rights and obligations\ncontained herein with respect to Proprietary Information disclosed hereunder prior to termination.\n7. Upon termination or expiration of this Agreement or upon the written request of either party at any time, each party will, within a\nreasonable period of time thereafter, not to exceed thirty (30) days, return all Proprietary Information received from the other party and copies\nmade thereof by the receiving party under this Agreement, or certify by written memorandum that all such Proprietary Information has been\ndestroyed.\n8. Except as expressly provided herein, neither the execution and delivery of this Agreement nor the furnishing of any Proprietary\nInformation shall be construed as granting either expressly or by implication, estoppel or otherwise, any license under any copyright, invention,\nimprovement, discovery or patent, or trademark now or hereafter owned or controlled by a party disclosing Proprietary Information hereunder.\n9. This Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one party without the prior written\napproval of the other party hereto.\n10. Each party warrants that it has the right to disclose the Proprietary Information disclosed to the other party hereunder for the purpose set\nout in Paragraph 2 above.\n11. Neither party shall export, transmit or otherwise convey any Proprietary Information disclose under this Agreement in contravention of\nany laws, ordinances or regulations of the U.S. Government.\n12. The laws of the Commonwealth of Virginia shall govern this Agreement, without regard to its conflict of law rules.\n13. This Agreement shall not be construed as a teaming, joint venture, or other such arrangement; rather, the parties hereto expressly agree\nthat this Agreement is for the purpose of protection of Proprietary Information only.\n14. Neither party has an obligation to supply Proprietary Information hereunder.\n15. The parties agree that the terms and conditions of this Agreement are reasonable and necessary for the protection of Proprietary\nInformation and to prevent damage or loss to ISI and SmartMetric. Each party agrees that any breach or threatened breach by it, of the foregoing\nterms and conditions, will cause irreparable injury to the other party for which there is no adequate remedy at law. Therefore, each party\nexpressly agrees that the party that may be harmed shall be entitled, in addition to any other remedies available, to injunctive or other equitable\nrelief to require specific performance or to prevent a breach of this Agreement.\n16. This Agreement contains the entire understanding between the parties relative to the protection of Proprietary Information and\nsupersedes all prior and collateral communications, reports, and understandings between the parties in respect thereto. No change, modification,\nalteration, or addition to any provision hereof shall be binding unless in writing and signed by authorized representatives of both parties.\n17. All notices shall be in writing, shall bear the addresses of the parties to this Agreement and shall be dispatched by certified or registered\nmail, return receipt requested. A notice sent by facsimile shall be effective when received, provided that it is promptly confirmed by certified or\nregistered mail, return receipt requested.\nIN WITNESS WHEREOF, the parties hereto have caused this Nondisclosure Agreement to be executed as of the date and year indicated below.\nINFORMATION SPECTRUM, INC. SMARTMETRIC, INC.\nBy: /s/ William T. Alsbrooks By:_/s/ Colin Hendrick\nName: William T. Alsbrooks Name: Colin Hendrick\nTitle: Executive Vice President Title: President and CEO\nDate: August 5, 2003 Date: August 5, 2003	Nondisclosure Agreement\nThis Agreement is entered into by and between Information Spectrum, Inc. (hereinafter "ISI"), a corporation with offices at 7611 Little River\nTurnpike, Annandale, Virginia 22003, and SmartMetric, Inc., a corporation with offices at 67 Wall Street, Level 22, New York, New York 10005\n(hereinafter "SmartMetric").\n1.\n"Proprietary Information" is defined as information that the disclosing party at the time of disclosure identified in writing as Proprietary\nInformation by means of a proprietary or confidential legend, marking, stamp, or other positive written notice identifying the information to be\nproprietary or confidential. In order for information disclosed orally or visually by a party to this Agreement to be considered Proprietary\nInformation\nprotected\nhereunder,\nthe\ndisclosing\nparty\nshall\nidentify\nthe\ninformation\nas\nproprietary\nat\nthe\ntime\nof\nthe\ndisclosure\nand,\nwithin\nten\n(10) days after such oral or visual disclosure, reduce the subject matter of disclosure to writing, properly stamped with a proprietary legend,\nmarking, stamp or other positive written notice, and submit it to the receiving party.\n2.\nProprietary Information disclosed hereunder may be used only for mutual benefit of SmartMetric and ISI in conducting discussions and\nexchanging information relating to fingerprint biometric, biometric smartcard with fingerprint storage, high-capacity memory cards, contact and\ncontactless identification cards, and the processing of information on these identification cards, and then only in strict accordance with the terms\nof this Agreement.\n3.\nIt is agreed that for a period of five (5) years following the receipt of Proprietary Information, each party will use such information only\nfor the purpose(s) set out in Paragraph 2 above and shall take reasonable efforts to preserve the confidentiality of such Proprietary Information,\nand prevent disclosure thereof to third parties. Each party agrees that it will use the same reasonable efforts to protect the other's Proprietary\nInformation as are used to protect its own, but, in any event, not less than reasonable care.\n4.\nThe obligation to protect Proprietary Information, and the liability for unauthorized disclosure or use of Proprietary Information shall not\napply with respect to: such information that is now available or becomes available to the public without breach of this Agreement; information\nlawfully\nreceived\nwithout\nrestrictions\nfrom\nother\nsources,\nincluding\nthe\nU.S.\nGovernment;\ninformation\npublished\nor\ndisclosed\nby\nthe\ndisclosing\nparty to others, including the U.S. Government, without restriction; information developed by the receiving party independent of and without use\nof the information disclosed by the disclosing party; or information that is required to be disclosed pursuant to any law or judicia or\ngovernmental demand, requirement or order, provided that the receiving party shall give reasonable notice to the disclosing party of such order\nto\nenable the disclosing party to seek legal protection of the Proprietary Information.\n5.\nThe parties agree that disclosures of Proprietary Information shall be restricted to those individuals directly participating in the effort set\nout in Paragraph 2 who have a need to know been made aware of and consent to abide by the restrictions contained herein concerning the\ndisclosure and use of such information. The receiving party agrees to provide the disclosing party a list of those individuals to whom such\ndisclosures have been made upon request of the disclosing party.\n6.\nThis Agreement shall expire two (2) years after the effective date of this Agreement, but may be terminated earlier by either party giving\nthirty (30) days notice in writing to the other party of its intention to terminate. Termination shall not, however, affect the rights and obligations\ncontained herein with respect to Proprietary Information disclosed hereunder prior to termination.\n7.\nUpon termination or expiration of this Agreement or upon the written request of either party at any time, each party will, within\na\nreasonable period of time thereafter, not to exceed thirty (30) days, return all Proprietary Information received from the other party and copies\nmade thereof by the receiving party under this Agreement, or certify by written memorandum that all such Proprietary Information has been\ndestroyed.\n8.\nExcept as expressly provided herein, neither the execution and delivery of this Agreement nor the furnishing of any Proprietary\nInformation shall be construed as granting either expressly or by implication, estoppel or otherwise, any license under any copyright, invention,\nimprovement, discovery or patent, or trademark now or hereafter owned or controlled by a party disclosing Proprietary Information hereunder.\n9.\nThis Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one party without the prior written\napproval of the other party hereto.\n10.\nEach party warrants that it has the right to disclose the Proprietary Information disclosed to the other party hereunder for the purpose set\nout in Paragraph 2 above.\n11.\nNeither party shall export, transmit or otherwise convey any Proprietary Information disclose under this Agreement in contravention of\nany laws, ordinances or regulations of the U.S. Government.\n12\nThe laws of the Commonwealth of Virginia shall govern this Agreement, without regard to its conflict of law rules.\n13.\nThis Agreement shall not be construed as a teaming, joint venture, or other such arrangement; rather, the parties hereto expressly agree\nthat this Agreement is for the purpose of protection of Proprietary Information only.\n14.\nNeither party has an obligation to supply Proprietary Information hereunder.\n15.\nThe parties agree that the terms and conditions of this Agreement are reasonable and necessary for the protection of Proprietary\nInformation and to prevent damage or loss to ISI and SmartMetric. Each party agrees that any breach or threatened breach by it, of the foregoing\nterms and conditions, will cause irreparable injury to the other party for which there is no adequate remedy at law. Therefore, each party\nexpressly agrees that the party that may be harmed shall be entitled, in addition to any other remedies available, to injunctive or other equitable\nrelief to require specific performance or to prevent a breach of this Agreement.\n16.\nThis Agreement contains the entire understanding between the parties relative to the protection of Proprietary Information and\nsupersedes all prior and collateral communications, reports, and understandings between the parties in respect thereto. No change, modification,\nalteration, or addition to any provision hereof shall be binding unless in writing and signed by authorized representatives of both parties.\n17.\nAll notices shall be in writing, shall bear the addresses of the parties to this Agreement and shall be dispatched by certified or registered\nmail, return receipt requested. A notice sent by facsimile shall be effective when received, provided that it is promptly confirmed by certified or\nregistered mail, return receipt requested.\nIN WITNESS WHEREOF, the parties hereto have caused this Nondisclosure Agreement to be executed as of the date and year indicated below.\nINFORMATION SPECTRUM, INC.\nSMARTMETRIC, INC.\nBy: /s/ William T. Alsbrooks\nBy: /s/ Colin Hendrick\nName: William T. Alsbrooks\nName: Colin Hendrick\nTitle: Executive Vice President\nTitle: President and CEO\nDate: August 5, 2003\nDate: August 5, 2003	Nondisclosure Agreement\nThis Agreement is entered into by and between Information Spectrum, Inc. (hereinafter “ISI”), a corporation with offices at 7611 Little River\nTurnpike, Annandale, Virginia 22003, and SmartMetric, Inc., a corporation with offices at 67 Wall Street, Level 22, New York, New York 10005\n(hereinafter “SmartMetric”).\n1.\n“Proprietary Information” is defined as information that the disclosing party at the time of disclosure identified in writing as Proprietary\nInformation by means of a proprietary or confidential legend, marking, stamp, or other positive written notice identifying the information to be\nproprietary or confidential. In order for information disclosed orally or visually by a party to this Agreement to be considered Proprietary\nInformation protected hereunder, the disclosing party shall identify the information as proprietary at the time of the disclosure and, within ten\n(10) days after such oral or visual disclosure, reduce the subject matter of disclosure to writing, properly stamped with a proprietary legend,\nmarking, stamp or other positive written notice, and submit it to the receiving party.\n2.\nProprietary Information disclosed hereunder may be used only for mutual benefit of SmartMetric and ISI in conducting discussions and\nexchanging information relating to fingerprint biometric, biometric smartcard with fingerprint storage, high-capacity memory cards, contact and\ncontactless identification cards, and the processing of information on these identification cards, and then only in strict accordance with the terms\nof this Agreement.\n3.\nIt is agreed that for a period of five (5) years following the receipt of Proprietary Information, each party will use such information only\nfor the purpose(s) set out in Paragraph 2 above and shall take reasonable efforts to preserve the confidentiality of such Proprietary Information,\nand prevent disclosure thereof to third parties. Each party agrees that it will use the same reasonable efforts to protect the other’s Proprietary\nInformation as are used to protect its own, but, in any event, not less than reasonable care.\n4.\nThe obligation to protect Proprietary Information, and the liability for unauthorized disclosure or use of Proprietary Information, shall not\napply with respect to: such information that is now available or becomes available to the public without breach of this Agreement; information\nlawfully received without restrictions from other sources, including the U.S . Government; information published or disclosed by the disclosing\nparty to others, including the U.S. Government, without restriction; information developed by the receiving party independent of and without use\nof the information disclosed by the disclosing party; or information that is required to be disclosed pursuant to any law or judicial or\ngovernmental demand, requirement or order, provided that the receiving party shall give reasonable notice to the disclosing party of such order to\nenable the disclosing party to seek legal protection of the Proprietary Information.\n5.\nThe parties agree that disclosures of Proprietary Information shall be restricted to those individuals directly participating in the effort set\nout in Paragraph 2 who have a need to know been made aware of and consent to abide by the restrictions contained herein concerning the\ndisclosure and use of such information. The receiving party agrees to provide the disclosing party a list of those individuals to whom such\ndisclosures have been made upon request of the disclosing party.\n6.\nThis Agreement shall expire two (2) years after the effective date of this Agreement, but may be terminated earlier by either party giving\nthirty (30) days notice in writing to the other party of its intention to terminate. Termination shall not, however, affect the rights and obligations\ncontained herein with respect to Proprietary Information disclosed hereunder prior to termination.\n7.\nUpon termination or expiration of this Agreement or upon the written request of either party at any time, each party will, within a\nreasonable period of time thereafter, not to exceed thirty (30) days, return all Proprietary Information received from the other party and copies\nmade thereof by the receiving party under this Agreement, or certify by written memorandum that all such Proprietary Information has been\ndestroyed.\n8.\nExcept as expressly provided herein, neither the execution and delivery of this Agreement nor the furnishing of any Proprietary\nInformation shall be construed as granting either expressly or by implication, estoppel or otherwise, any license under any copyright, invention,\nimprovement, discovery or patent, or trademark now or hereafter owned or controlled by a party disclosing Proprietary Information hereunder.\n9.\nThis Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one party without the prior written\napproval of the other party hereto.\n10.\nEach party warrants that it has the right to disclose the Proprietary Information disclosed to the other party hereunder for the purpose set\nout in Paragraph 2 above.\n11.\nNeither party shall export, transmit or otherwise convey any Proprietary Information disclose under this Agreement in contravention of\nany laws, ordinances or regulations of the U.S. Government.\n12.\nThe laws of the Commonwealth of Virginia shall govern this Agreement, without regard to its conflict of law rules.\n13.\nThis Agreement shall not be construed as a teaming, joint venture, or other such arrangement; rather, the parties hereto expressly agree\nthat this Agreement is for the purpose of protection of Proprietary Information only.\n14.\nNeither party has an obligation to supply Proprietary Information hereunder.\n15.\nThe parties agree that the terms and conditions of this Agreement are reasonable and necessary for the protection of Proprietary\nInformation and to prevent damage or loss to ISI and SmartMetric. Each party agrees that any breach or threatened breach by it, of the foregoing\nterms and conditions, will cause irreparable injury to the other party for which there is no adequate remedy at law. Therefore, each party\nexpressly agrees that the party that may be harmed shall be entitled, in addition to any other remedies available, to injunctive or other equitable\nrelief to require specific performance or to prevent a breach of this Agreement.\n16.\nThis Agreement contains the entire understanding between the parties relative to the protection of Proprietary Information and\nsupersedes all prior and collateral communications, reports, and understandings between the parties in respect thereto. No change, modification,\nalteration, or addition to any provision hereof shall be binding unless in writing and signed by authorized representatives of both parties.\n17.\nAll notices shall be in writing, shall bear the addresses of the parties to this Agreement and shall be dispatched by certified or registered\nmail, return receipt requested. A notice sent by facsimile shall be effective when received, provided that it is promptly confirmed by certified or\nregistered mail, return receipt requested.\nIN WITNESS WHEREOF, the parties hereto have caused this Nondisclosure Agreement to be executed as of the date and year indicated below.\nINFORMATION SPECTRUM, INC.\nSMARTMETRIC, INC.\nBy: /s/ William T. Alsbrooks\nBy: /s/ Colin Hendrick\nName: William T. Alsbrooks\nName: Colin Hendrick\nTitle: Executive Vice President\nTitle: President and CEO\nDate: August 5, 2003\nDate: August 5, 2003
40c1ec6e488ea94fff548ce0a5d983be.pdf	effective_date jurisdiction party term	EX-10.24 16 d567323dex1024.htm EX-10.24\nExhibit 10.24\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis agreement, made as of January 28, 2014 (the “Effective date”), between Vapotherm, Inc. (“Vapotherm”), a corporation located at 22\nIndustrial Drive, Exeter, NH 03833 and organized under the laws of Delaware, and John Coolidge, located at xxx (the “Receiving Party”).\nWHEREAS Vapotherm is in the business of developing medical device technology (the “Technology”), and Vapotherm wishes to preserve the\nsecrecy of that Technology.\nWHEREAS Vapotherm desires to provide Confidential Information to Receiving Party for the specific purposes identified herein, and Receiving\nParty desires to obtain and evaluate such Confidential Information from Vapotherm for the specific purposes identified herein.\nNOW THEREFORE, in consideration of mutual covenants and mutual promises set forth herein, the parties hereto agree as follows:\n1. Definition. “Confidential Information” shall, mean all intellectual property, business plans, financial records and strategies, marketing plans,\ncontacts, trade secrets, information, materials, documentation and software, as well as copies of all such materials made thereof as authorized by\nthis Agreement, including written, oral, or verbal disclosures. “Confidential Information” shall not include:\na.\nInformation that was in the public domain, in its entirety in a unified form, at the time of disclosure to Receiving Party by Vapotherm;\nb. Information known to Receiving Party prior to its disclosure by Vapotherm, such prior knowledge to be demonstrated by Receiving Party’s\nrecords prepared before the date the Confidential Information is disclosed by Vapotherm;\nc.\nInformation that becomes part of the public domain after the date of disclosure by Vapotherm through no fault of Receiving Party;\nd. Information that is disclosed by a third party to Receiving Party after the date of disclosure by Vapotherm, where the third party did not\nrequire Receiving Party to hold such information in confidence and did not acquire such information directly or indirectly from Vapotherm.\n2. Purpose. Vapotherm agrees to disclose the Confidential Information only for the following specific purpose (‘Permitted Purpose”):\n________________ ____________________ ____________________ ____________________ ____________________\n________________ ____________________ ____________________ ____________________ ____________________\n3. Nondisclosure. The Receiving Party agrees that, in consideration of access to the Confidential Information, it shall hold such Confidential\nInformation in strict confidence and shall take all measures necessary to prevent the Confidential Information from falling into the public domain\nor into the possession of the persons not bound to this Agreement. The Receiving Party further agrees:\na.\nTo use Confidential Information for the Permitted Purpose;\nb. Not to disclose Confidential Information to any other entity, except as expressly authorized in writing by Vapotherm;\nc.\nNot to use Confidential Information in such a way as to hinder, interfere with, or in any way circumvent Vapotherm’s interest in the\nTechnology, or consulting or business relations between and among Vapotherm and third parties;\nd. Not to copy Confidential Information in whole or in part, without the express written permission of Vapotherm;\ne.\nTo return Confidential Information, including all copies and records thereof, to Vapotherm, at the Receiving Party’s expense, within five\n(5) business days after: (i) receipt of a written request from Vapotherm; (ii) a decision by Receiving Party not to enter into any consulting\nrelationship with Vapotherm; or, (iii) within thirty (30) days following the termination of this Agreement.\n4. Receiving Party’s Procedures. Receiving Party shall disclose Confidential Information only to those of its employees, agents and independent\ncontractors who have a need to know such information for the Permitted Purpose. Receiving Party shall require all employees, agents and\nindependent contractors who have access to Confidential Information to execute a confidentiality agreement limiting their use of such information\nto the Permitted Purpose and prohibiting them from disclosing such information to third parties.\n5. Injunctive Relief. Because of the unique nature of the Confidential information, the Receiving Party understands and agrees that Vapotherm will\nsuffer irreparable harm in the event that any party hereto fails to comply with any of the terms of the Agreement, and monetary damages may be\ninadequate to compensate such breach. Accordingly, the Receiving Party agrees that Vapotherm will, in addition to any other remedies available to\nit at law or in equity, be entitled to injunctive relief to enforce the terms of this Agreement.\n6. Misuse of Confidential Information. The Receiving Party shall promptly advise Vapotherm, in writing, of any misappropriation or misuse of the\nConfidential Information, by any entity, which may come to its attention.\n7. Inventions. Inventions means all discoveries, improvements, modifications and enhancements relating to the Technology that are conceived,\ndeveloped or reduced to practice by Receiving Party during die Term, either solely or jointly with others: (i) during the course of or as a result of\nperforming the Permitted Purpose, or (ii) that are\n-2-\nrelated to or attributable to Vapotherm’s products, or later modifications thereof, whether patentable or not, and all Intellectual Property rights\ntherein. All Inventions will be immediately reported to Vapotherm and shall be the exclusive property of Vapotherm. The Receiving Party will\nperform, at Vapotherm’s request and expense, any act which it can reasonably perform that Vapotherm deems necessary to vest title to such\ninventions and ideas in Vapotherm and to execute any and all patent applications in connection therewith.\n8. Government Order. In the event that the Receiving Party is ordered to disclose the Confidential Information pursuant to a judicial or\ngovernmental request, requirement or order, Receiving Party shall immediately notify Vapotherm and take reasonable steps to assist Vapotherm in\ncontesting such request, requirement or order or otherwise protecting Vapotherm’s rights.\n9. Compliance With Export Restrictions. The Receiving Party will not export, directly or indirectly, any technical data acquired from Vapotherm\nunder this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of\nexport requires an export license or other governmental approval without first obtaining such license or approval.\n10. No Warranties. The Receiving Party acknowledges that Confidential Information may still be under development, or may be incomplete, and that\nsuch information may relate to products that are under development or are planned for development. VAPOTHERM MAKES NO WARRANTIES\nREGARDING THE ACCURACY OF THIS CONFIDENTIAL INFORMATION. Vapotherm accepts no responsibility for any expenses, losses or\naction incurred or undertaken by Receiving Party as a result of Receiving Party’s receipt or use of Confidential Information. VAPOTHERM\nMAKES NO WARRANTIES OR REPRESENTATIONS THAT IT WILL INTRODUCE ANY PRODUCT RELATING TO CONFIDENTIAL\nINFORMATION.\n11. Survival. The restrictions and obligations of this Agreement shall continue and shall survive the termination of the Purpose of the disclosure for a\nperiod of five (5) years.\n12. Interpretation; Venue. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Delaware, without reference\nto its choice of law provisions. The parties agree that any legal action or proceedings brought by or against them with respect to this Agreement\nshall be brought in the state or federal courts located in Delaware, USA and, by execution and delivery hereof, the parties hereby irrevocably\nsubmit to each such jurisdiction and hereby irrevocably waive any and all objections which they may have with respect to venue in any of the\nabove courts.\n13. Division/Separation. This Agreement is divisible and separable so that if any provision(s) hereof shall be held to be invalid, such holdings shall\nnot impair enforcement or validity of the remaining provisions hereof. If any provision is held to be too broad to be enforced, such provision shall\nbe construed to create an obligation to the full extent allowable by law.\n-3-\n14. Entire Understanding. This Agreement constitutes the entire understanding of the parties with respect to the specific subject matter of this\nAgreement and supersedes and replaces any and all prior understandings, arrangements and/or agreements, whether written or oral, relating to the\nTechnology.\n15. Waiver. Waiver of any breach of this Agreement shall not be construed as a waiver of the underlying obligations of this Agreement.\n16. Right in Confidential Information. No license or other right is created or granted hereby, except the specific right to receive the Confidential\nInformation and evaluate it as set forth herein, nor shall any license or any other right with respect to the subject matter hereof be created or\ngranted except by written agreement signed by the duly authorized representative of each of the parties hereto.\n17. Modification. No addition to, deletion from, or modification of the provisions of this Agreement shall be permitted or shall be binding upon a\nparty hereto unless made in writing and signed by each party.\n18. Assignment. The rights and obligations herein shall bind the parties, their legal representatives, successors, heirs, and assigns.\nIN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement on the date first above written.\nRECEIVING PARTY:\nVAPOTHERM, INC.:\nSigned:\n/s/ John Coolidge\nSigned:\n/s/ John Landry\nName: John Coolidge\nName: John Landry\nTitle: Consultant\nTitle: VP + CFO\nEmail xxx@xxx.com\nEmail: jlandry@vtherm.com\nAddress:\nxxx\nAddress:\n22 Industrial Drive\nxxx\nExeter, NH 03833\nxxx\n603.658.0411\nPhone:\nxxx-xxx-xxxx\nDate:\nJan 28th 2014\nDate: 1/28/14\n-4-	EX-10.24 16 d567323dex1024.htm EX-10.24 Exhibit 10.24\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis agreement, made as of January 28, 2014 (the “Effective date”), between Vapotherm, Inc. (“Vapotherm™), a corporation located at 22 Industrial Drive, Exeter, NH 03833 and organized under the laws of Delaware, and John Coolidge, located at xxx (the “Receiving Party™). WHEREAS Vapotherm is in the business of developing medical device technology (the “Technology”), and Vapotherm wishes to preserve the secrecy of that Technology. WHEREAS Vapotherm desires to provide Confidential Information to Receiving Party for the specific purposes identified herein, and Receiving Party desires to obtain and evaluate such Confidential Information from Vapotherm for the specific purposes identified herein. NOW THEREFORE, in consideration of mutual covenants and mutual promises set forth herein, the parties hereto agree as follows: 1.  Definition. “Confidential Information” shall, mean all intellectual property, business plans, financial records and strategies, marketing plans, contacts, trade secrets, information, materials, documentation and software, as well as copies of all such materials made thereof as authorized by this Agreement, including written, oral, or verbal disclosures. “Confidential Information” shall not include: d. b. Information that was in the public domain, in its entirety in a unified form, at the time of disclosure to Receiving Party by Vapotherm;\nInformation known to Receiving Party prior to its disclosure by Vapotherm, such prior knowledge to be demonstrated by Receiving Party’s\nrecords prepared before the date the Confidential Information is disclosed by Vapotherm;\nInformation that becomes part of the public domain after the date of disclosure by Vapotherm through no fault of Receiving Party;\nInformation that is disclosed by a third party to Receiving Party after the date of disclosure by Vapotherm, where the third party did not\nrequire Receiving Party to hold such information in confidence and did not acquire such information directly or indirectly from Vapotherm.\n2. Purpose. Vapotherm agrees to disclose the Confidential Information only for the following specific purpose (‘Permitted Purpose”):  \n \nNondisclosure. The Receiving Party agrees that, in consideration of access to the Confidential Information, it shall hold such Confidential\nInformation in strict confidence and shall take all measures necessary to prevent the Confidential Information from falling into the public domain\nor into the possession of the persons not bound to this Agreement. The Receiving Party further agrees:\na.  To use Confidential Information for the Permitted Purpose;\nb.  Not to disclose Confidential Information to any other entity, except as expressly authorized in writing by Vapotherm;\nc.  Not to use Confidential Information in such a way as to hinder, interfere with, or in any way circumvent Vapotherm’s interest in the\nTechnology, or consulting or business relations between and among Vapotherm and third parties;\nd.  Not to copy Confidential Information in whole or in part, without the express written permission of Vapotherm;\ne.  Toreturn Confidential Information, including all copies and records thereof, to Vapotherm, at the Receiving Party’s expense, within five\n(5) business days after: (i) receipt of a written request from Vapotherm; (ii) a decision by Receiving Party not to enter into any consulting\nrelationship with Vapotherm; or, (iii) within thirty (30) days following the termination of this Agreement.\nReceiving Party’s Procedures. Receiving Party shall disclose Confidential Information only to those of its employees, agents and independent\ncontractors who have a need to know such information for the Permitted Purpose. Receiving Party shall require all employees, agents and\nindependent contractors who have access to Confidential Information to execute a confidentiality agreement limiting their use of such information\nto the Permitted Purpose and prohibiting them from disclosing such information to third parties.\nInjunctive Relief. Because of the unique nature of the Confidential information, the Receiving Party understands and agrees that Vapotherm will\nsuffer irreparable harm in the event that any party hereto fails to comply with any of the terms of the Agreement, and monetary damages may be\ninadequate to compensate such breach. Accordingly, the Receiving Party agrees that Vapotherm will, in addition to any other remedies available to\nit at law or in equity, be entitled to injunctive relief to enforce the terms of this Agreement.\nMisuse of Confidential Information. The Receiving Party shall promptly advise Vapotherm, in writing, of any misappropriation or misuse of the\nConfidential Information, by any entity, which may come to its attention.\nInventions. Inventions means all discoveries, improvements, modifications and enhancements relating to the Technology that are conceived,\ndeveloped or reduced to practice by Receiving Party during die Term, either solely or jointly with others: (i) during the course of or as a result of\nperforming the Permitted Purpose, or (ii) that are\n-\n10. 11. 12. 13. related to or attributable to Vapotherm’s products, or later modifications thereof, whether patentable or not, and all Intellectual Property rights\ntherein. All Inventions will be immediately reported to Vapotherm and shall be the exclusive property of Vapotherm. The Receiving Party will\nperform, at Vapotherm’s request and expense, any act which it can reasonably perform that Vapotherm deems necessary to vest title to such\ninventions and ideas in Vapotherm and to execute any and all patent applications in connection therewith.\nGovernment Order. In the event that the Receiving Party is ordered to disclose the Confidential Information pursuant to a judicial or\ngovernmental request, requirement or order, Receiving Party shall immediately notify Vapotherm and take reasonable steps to assist Vapotherm in\ncontesting such request, requirement or order or otherwise protecting Vapotherm’s rights.\nCompliance With Export Restrictions. The Receiving Party will not export, directly or indirectly, any technical data acquired from Vapotherm\nunder this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of\nexport requires an export license or other governmental approval without first obtaining such license or approval.\nNo Warranties. The Receiving Party acknowledges that Confidential Information may still be under development, or may be incomplete, and that\nsuch information may relate to products that are under development or are planned for development. VAPOTHERM MAKES NO WARRANTIES\nREGARDING THE ACCURACY OF THIS CONFIDENTIAL INFORMATION. Vapotherm accepts no responsibility for any expenses, losses or\naction incurred or undertaken by Receiving Party as a result of Receiving Party’s receipt or use of Confidential Information. VAPOTHERM\nMAKES NO WARRANTIES OR REPRESENTATIONS THAT IT WILL INTRODUCE ANY PRODUCT RELATING TO CONFIDENTIAL\nINFORMATION.\nSurvival. The restrictions and obligations of this Agreement shall continue and shall survive the termination of the Purpose of the disclosure for a\nperiod of five (5) years.\nInterpretation; Venue. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Delaware, without reference\nto its choice of law provisions. The parties agree that any legal action or proceedings brought by or against them with respect to this Agreement\nshall be brought in the state or federal courts located in Delaware, USA and, by execution and delivery hereof, the parties hereby irrevocably\nsubmit to each such jurisdiction and hereby irrevocably waive any and all objections which they may have with respect to venue in any of the\nabove courts.\nDivision/Separation. This Agreement is divisible and separable so that if any provision(s) hereof shall be held to be invalid, such holdings shall\nnot impair enforcement or validity of the remaining provisions hereof. If any provision is held to be too broad to be enforced, such provision shall\nbe construed to create an obligation to the full extent allowable by law.\n3-\n14. Entire Understanding. This Agreement constitutes the entire understanding of the parties with respect to the specific subject matter of this\nAgreement and supersedes and replaces any and all prior understandings, arrangements and/or agreements, whether written or oral, relating to the\nTechnology.\n15. Waiver. Waiver of any breach of this Agreement shall not be construed as a waiver of the underlying obligations of this Agreement.\n16. Right in Confidential Information. No license or other right is created or granted hereby, except the specific right to receive the Confidential\nInformation and evaluate it as set forth herein, nor shall any license or any other right with respect to the subject matter hereof be created or\ngranted except by written agreement signed by the duly authorized representative of each of the parties hereto.\n17. Modification. No addition to, deletion from, or modification of the provisions of this Agreement shall be permitted or shall be binding upon a\nparty hereto unless made in writing and signed by each party.\n18. Assignment. The rights and obligations herein shall bind the parties, their legal representatives, successors, heirs, and assigns.\nIN WITNESS WHEREQOF, the parties have duly executed and delivered this Agreement on the date first above written.\nRECEIVING PARTY: VAPOTHERM, INC.:\nSigned: /s/ John Coolidge Signed: /s/ John Landry\nName: John Coolidge Name: John Landry\nTitle: Consultant Title: VP + CFO\nEmail xxx@xxx.com Email: jlandry@vtherm.com\nAddress: XXX Address: 22 Industrial Drive\nXXX Exeter, NH 03833\nXXX 603.658.0411\nPhone: XXX-XXX-XXXX\nDate: Jan 28th 2014 Date: 1/28/14	EX-10.24 16 d567323dex1024.htm EX-10.24\nExhibit 10.24\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis agreement, made as of January 28, 2014 (the "Effective date"), between Vapotherm, Inc. ("Vapotherm"), a corporation located at 22\nIndustrial Drive, Exeter, NH 03833 and organized under the laws of Delaware, and John Coolidge, located at XXX (the "Receiving Party").\nWHEREAS Vapotherm is in the business of developing medical device technology (the "Technology"), and Vapotherm wishes to preserve the\nsecrecy of that Technology.\nWHEREAS Vapotherm desires to provide Confidential Information to Receiving Party for the specific purposes identified herein, and Receiving\nParty desires to obtain and evaluate such Confidential Information from Vapotherm for the specific purposes identified herein.\nNOW THEREFORE, in consideration of mutual covenants and mutual promises set forth herein, the parties hereto agree as follows:\n1.\nDefinition. "Confidential Information" shall, mean all intellectual property, business plans, financial records and strategies, marketing plans,\ncontacts, trade secrets, information, materials, documentation and software, as well as copies of all such materials made thereof as authorized by\nthis Agreement, including written, oral, or verbal disclosures. "Confidential Information" shall not include:\na.\nInformation that was in the public domain, in its entirety in a unified form, at the time of disclosure to Receiving Party by Vapotherm;\nb.\nInformation known to Receiving Party prior to its disclosure by Vapotherm, such prior knowledge to be demonstrated by Receiving Party's\nrecords prepared before the date the Confidential Information is disclosed by Vapotherm;\nC.\nInformation that becomes part of the public domain after the date of disclosure by Vapotherm through no fault of Receiving Party;\nd.\nInformation that is disclosed by a third party to Receiving Party after the date of disclosure by Vapotherm, where the third party did not\nrequire Receiving Party to hold such information in confidence and did not acquire such information directly or indirectly from Vapotherm.\n2.\nPurpose. Vapotherm agrees to disclose the Confidential Information only for the following specific purpose ('Permitted Purpose"):\n3.\nNondisclosure. The Receiving Party agrees that, in consideration of access to the Confidential Information, it shall hold such Confidential\nInformation in strict confidence and shall take all measures necessary to prevent the Confidential Information from falling into the public domain\nor into the possession of the persons not bound to this Agreement. The Receiving Party further agrees:\na.\nTo use Confidential Information for the Permitted Purpose;\nb.\nNot to disclose Confidential Information to any other entity, except as expressly authorized in writing by Vapotherm;\nC.\nNot to use Confidential Information in such a way as to hinder, interfere with, or in any way circumvent Vapotherm's interest in the\nTechnology, or consulting or business relations between and among Vapotherm and third parties;\nd.\nNot to copy Confidential Information in whole or in part, without the express written permission of Vapotherm;\ne.\nTo return Confidential Information, including all copies and records thereof, to Vapotherm, at the Receiving Party's expense, within five\n(5) business days after: (i) receipt of a written request from Vapotherm; (ii) a decision by Receiving Party not to enter into any consulting\nrelationship with Vapotherm; or, (iii) within thirty (30) days following the termination of this Agreement.\n4.\nReceiving Party's Procedures. Receiving Party shall disclose Confidential Information only to those of its employees, agents and independent\ncontractors who have a need to know such information for the Permitted Purpose. Receiving Party shall require all employees, agents and\nindependent contractors who have access to Confidential Information to execute a confidentiality agreement limiting their use of such information\nto the Permitted Purpose and prohibiting them from disclosing such information to third parties.\n5.\nInjunctive Relief. Because of the unique nature of the Confidential information, the Receiving Party understands and agrees that Vapotherm will\nsuffer irreparable harm in the event that any party hereto fails to comply with any of the terms of the Agreement, and monetary damages may be\ninadequate to compensate such breach. Accordingly, the Receiving Party agrees that Vapotherm will, in addition to any other remedies available to\nit at law or in equity, be entitled to injunctive relief to enforce the terms of this Agreement.\n6.\nMisuse of Confidential Information. The Receiving Party shall promptly advise Vapotherm, in writing, of any misappropriation or misuse of the\nConfidential Information, by any entity, which may come to its attention.\n7.\nInventions. Inventions means all discoveries, improvements, modifications and enhancements relating to the Technology that are conceived,\ndeveloped or reduced to practice by Receiving Party during die Term, either solely or jointly with others: (i) during the course of or as a result\nof\nperforming the Permitted Purpose, or (ii) that are\n-2-\nrelated to or attributable to Vapotherm's products, or later modifications thereof, whether patentable or not, and all Intellectual Property rights\ntherein. All Inventions will be immediately reported to Vapotherm and shall be the exclusive property of Vapotherm. The Receiving Party\nwill\nperform, at Vapotherm's request and expense, any act which it can reasonably perform that Vapotherm deems necessary to vest title to such\ninventions and ideas in Vapotherm and to execute any and all patent applications in connection therewith.\n8.\nGovernment Order. In the event that the Receiving Party is ordered to disclose the Confidential Information pursuant to a judicial or\ngovernmenta request, requirement or order, Receiving Party shall immediately notify Vapotherm and take reasonable steps to assist Vapotherm in\ncontesting such request, requirement or order or otherwise protecting Vapotherm's rights.\n9.\nCompliance With Export Restrictions. The Receiving Party will not export, directly or indirectly, any technical data acquired from Vapotherm\nunder this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of\nexport requires an export license or other governmental approval without first obtaining such license or approval.\n10.\nNo Warranties. The Receiving Party acknowledges that Confidential Information may still be under development, or may be incomplete, and that\nsuch information may relate to products that are under development or are planned for development. VAPOTHERM MAKES NO WARRANTIES\nREGARDING THE ACCURACY OF THIS CONFIDENTIAL INFORMATION. Vapotherm accepts no responsibility for any expenses, losses or\naction incurred or undertaken by Receiving Party as a result of Receiving Party's receipt or use of Confidential Information. VAPOTHERM\nMAKES NO WARRANTIES OR REPRESENTATIONS THAT IT WILL INTRODUCE ANY PRODUCT RELATING TO CONFIDENTIAL\nINFORMATION.\n11.\nSurvival. The restrictions and obligations of this Agreement shall continue and shall survive the termination of the Purpose of the disclosure for a\nperiod of five (5) years.\n12. Interpretation; Venue. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Delaware, without reference\nto its choice of law provisions. The parties agree that any legal action or proceedings brought by or against them with respect to this Agreement\nshall be brought in the state or federal courts located in Delaware, USA and, by execution and delivery hereof, the parties hereby irrevocably\nsubmit to each such jurisdiction and hereby irrevocably waive any and all objections which they may have with respect to venue in any of the\nabove courts.\n13.\nDivision/Separation. This Agreement is divisible and separable so that if any provision(s) hereof shall be held to be invalid, such holdings shall\nnot impair enforcement or validity of the remaining provisions hereof. If any provision is held to be too broad to be enforced, such provision shall\nbe construed to create an obligation to the full extent allowable by law.\n-3-\n14. Entire Understanding. This Agreement constitutes the entire understanding of the parties with respect to the specific subject matter of this\nAgreement and supersedes and replaces any and all prior understandings, arrangements and/or agreements, whether written or oral, relating to the\nTechnology.\n15.\nWaiver. Waiver of any breach of this Agreement shall not be construed as a waiver of the underlying obligations of this Agreement.\n16.\nRight in Confidential Information. No license or other right is created or granted hereby, except the specific right to receive the Confidential\nInformation and evaluate it as set forth herein, nor shall any license or any other right with respect to the subject matter hereof be created or\ngranted except by written agreement signed by the duly authorized representative of each of the parties hereto.\n17.\nModification. No addition to, deletion from, or modification of the provisions of this Agreement shall be permitted or shall be binding upon\na\nparty hereto unless made in writing and signed by each party.\n18.\nAssignment. The rights and obligations herein shall bind the parties, their legal representatives, successors, heirs, and assigns.\nIN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement on the date first above written.\nRECEIVING PARTY:\nVAPOTHERM, INC.:\nSigned:\n/s/ John Coolidge\nSigned:\n/s/ John Landry\nName: John Coolidge\nName: John Landry\nTitle: Consultant\nTitle: VP + CFO\nEmail xxX@xxx.com\nEmail: jlandry@vtherm.com\nAddress:\nXXX\nAddress:\n22 Industrial Drive\nXXX\nExeter, NH 03833\nXXX\n603.658.0411\nPhone:\nXXX-XXX-XXXX\nDate:\nJan 28th 2014\nDate: 1/28/14\n-4-	EX-10.24 16 d567323dex1024.htm EX-10.24\nExhibit 10.24\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis agreement, made as of January 28, 2014 (the “Effective date”), between Vapotherm, Inc. (“Vapotherm”), a corporation located at 22\nIndustrial Drive, Exeter, NH 03833 and organized under the laws of Delaware, and John Coolidge, located at xxx (the “Receiving Party”).\nWHEREAS Vapotherm is in the business of developing medical device technology (the “Technology”), and Vapotherm wishes to preserve the\nsecrecy of that Technology.\nWHEREAS Vapotherm desires to provide Confidential Information to Receiving Party for the specific purposes identified herein, and Receiving\nParty desires to obtain and evaluate such Confidential Information from Vapotherm for the specific purposes identified herein.\nNOW THEREFORE, in consideration of mutual covenants and mutual promises set forth herein, the parties hereto agree as follows:\n1. Definition. “Confidential Information” shall, mean all intellectual property, business plans, financial records and strategies, marketing plans,\ncontacts, trade secrets, information, materials, documentation and software, as well as copies of all such materials made thereof as authorized by\nthis Agreement, including written, oral, or verbal disclosures. “Confidential Information” shall not include:\na.\nInformation that was in the public domain, in its entirety in a unified form, at the time of disclosure to Receiving Party by Vapotherm;\nb. Information known to Receiving Party prior to its disclosure by Vapotherm, such prior knowledge to be demonstrated by Receiving Party’s\nrecords prepared before the date the Confidential Information is disclosed by Vapotherm;\nc.\nInformation that becomes part of the public domain after the date of disclosure by Vapotherm through no fault of Receiving Party;\nd. Information that is disclosed by a third party to Receiving Party after the date of disclosure by Vapotherm, where the third party did not\nrequire Receiving Party to hold such information in confidence and did not acquire such information directly or indirectly from Vapotherm.\n2. Purpose. Vapotherm agrees to disclose the Confidential Information only for the following specific purpose (‘Permitted Purpose”):\n________________ ____________________ ____________________ ____________________ ____________________\n________________ ____________________ ____________________ ____________________ ____________________\n3. Nondisclosure. The Receiving Party agrees that, in consideration of access to the Confidential Information, it shall hold such Confidential\nInformation in strict confidence and shall take all measures necessary to prevent the Confidential Information from falling into the public domain\nor into the possession of the persons not bound to this Agreement. The Receiving Party further agrees:\na.\nTo use Confidential Information for the Permitted Purpose;\nb. Not to disclose Confidential Information to any other entity, except as expressly authorized in writing by Vapotherm;\nc.\nNot to use Confidential Information in such a way as to hinder, interfere with, or in any way circumvent Vapotherm’s interest in the\nTechnology, or consulting or business relations between and among Vapotherm and third parties;\nd. Not to copy Confidential Information in whole or in part, without the express written permission of Vapotherm;\ne.\nTo return Confidential Information, including all copies and records thereof, to Vapotherm, at the Receiving Party’s expense, within five\n(5) business days after: (i) receipt of a written request from Vapotherm; (ii) a decision by Receiving Party not to enter into any consulting\nrelationship with Vapotherm; or, (iii) within thirty (30) days following the termination of this Agreement.\n4. Receiving Party’s Procedures. Receiving Party shall disclose Confidential Information only to those of its employees, agents and independent\ncontractors who have a need to know such information for the Permitted Purpose. Receiving Party shall require all employees, agents and\nindependent contractors who have access to Confidential Information to execute a confidentiality agreement limiting their use of such information\nto the Permitted Purpose and prohibiting them from disclosing such information to third parties.\n5. Injunctive Relief. Because of the unique nature of the Confidential information, the Receiving Party understands and agrees that Vapotherm will\nsuffer irreparable harm in the event that any party hereto fails to comply with any of the terms of the Agreement, and monetary damages may be\ninadequate to compensate such breach. Accordingly, the Receiving Party agrees that Vapotherm will, in addition to any other remedies available to\nit at law or in equity, be entitled to injunctive relief to enforce the terms of this Agreement.\n6. Misuse of Confidential Information. The Receiving Party shall promptly advise Vapotherm, in writing, of any misappropriation or misuse of the\nConfidential Information, by any entity, which may come to its attention.\n7. Inventions. Inventions means all discoveries, improvements, modifications and enhancements relating to the Technology that are conceived,\ndeveloped or reduced to practice by Receiving Party during die Term, either solely or jointly with others: (i) during the course of or as a result of\nperforming the Permitted Purpose, or (ii) that are\n-2-\nrelated to or attributable to Vapotherm’s products, or later modifications thereof, whether patentable or not, and all Intellectual Property rights\ntherein. All Inventions will be immediately reported to Vapotherm and shall be the exclusive property of Vapotherm. The Receiving Party will\nperform, at Vapotherm’s request and expense, any act which it can reasonably perform that Vapotherm deems necessary to vest title to such\ninventions and ideas in Vapotherm and to execute any and all patent applications in connection therewith.\n8. Government Order. In the event that the Receiving Party is ordered to disclose the Confidential Information pursuant to a judicial or\ngovernmental request, requirement or order, Receiving Party shall immediately notify Vapotherm and take reasonable steps to assist Vapotherm in\ncontesting such request, requirement or order or otherwise protecting Vapotherm’s rights.\n9. Compliance With Export Restrictions. The Receiving Party will not export, directly or indirectly, any technical data acquired from Vapotherm\nunder this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of\nexport requires an export license or other governmental approval without first obtaining such license or approval.\n10. No Warranties. The Receiving Party acknowledges that Confidential Information may still be under development, or may be incomplete, and that\nsuch information may relate to products that are under development or are planned for development. VAPOTHERM MAKES NO WARRANTIES\nREGARDING THE ACCURACY OF THIS CONFIDENTIAL INFORMATION. Vapotherm accepts no responsibility for any expenses, losses or\naction incurred or undertaken by Receiving Party as a result of Receiving Party’s receipt or use of Confidential Information. VAPOTHERM\nMAKES NO WARRANTIES OR REPRESENTATIONS THAT IT WILL INTRODUCE ANY PRODUCT RELATING TO CONFIDENTIAL\nINFORMATION.\n11. Survival. The restrictions and obligations of this Agreement shall continue and shall survive the termination of the Purpose of the disclosure for a\nperiod of five (5) years.\n12. Interpretation; Venue. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Delaware, without reference\nto its choice of law provisions. The parties agree that any legal action or proceedings brought by or against them with respect to this Agreement\nshall be brought in the state or federal courts located in Delaware, USA and, by execution and delivery hereof, the parties hereby irrevocably\nsubmit to each such jurisdiction and hereby irrevocably waive any and all objections which they may have with respect to venue in any of the\nabove courts.\n13. Division/Separation. This Agreement is divisible and separable so that if any provision(s) hereof shall be held to be invalid, such holdings shall\nnot impair enforcement or validity of the remaining provisions hereof. If any provision is held to be too broad to be enforced, such provision shall\nbe construed to create an obligation to the full extent allowable by law.\n-3-\n14. Entire Understanding. This Agreement constitutes the entire understanding of the parties with respect to the specific subject matter of this\nAgreement and supersedes and replaces any and all prior understandings, arrangements and/or agreements, whether written or oral, relating to the\nTechnology.\n15. Waiver. Waiver of any breach of this Agreement shall not be construed as a waiver of the underlying obligations of this Agreement.\n16. Right in Confidential Information. No license or other right is created or granted hereby, except the specific right to receive the Confidential\nInformation and evaluate it as set forth herein, nor shall any license or any other right with respect to the subject matter hereof be created or\ngranted except by written agreement signed by the duly authorized representative of each of the parties hereto.\n17. Modification. No addition to, deletion from, or modification of the provisions of this Agreement shall be permitted or shall be binding upon a\nparty hereto unless made in writing and signed by each party.\n18. Assignment. The rights and obligations herein shall bind the parties, their legal representatives, successors, heirs, and assigns.\nIN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement on the date first above written.\nRECEIVING PARTY:\nVAPOTHERM, INC.:\nSigned:\n/s/ John Coolidge\nSigned:\n/s/ John Landry\nName: John Coolidge\nName: John Landry\nTitle: Consultant\nTitle: VP + CFO\nEmail xxx@xxx.com\nEmail: jlandry@vtherm.com\nAddress:\nxxx\nAddress:\n22 Industrial Drive\nxxx\nExeter, NH 03833\nxxx\n603.658.0411\nPhone:\nxxx-xxx-xxxx\nDate:\nJan 28th 2014\nDate: 1/28/14\n-4-
4198153d6cdd45b94f6bd4fbdb7b4d0f.pdf	effective_date jurisdiction party term	NON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into this 10th day of July, 2006 by and between Sun Energy Solar, Inc., a\nDelaware company having an address at 6408 Parkland Drive, Suite 104, Sarasota, Florida 34243, United States of America (“Company”), and Carl\nL. Smith, an individual residing in the state of Florida, and having an address at 847 Macewen Dr, Osprey, FL 34229(“Recipient”).\nRECITALS\nA. Company and Recipient have initiated or intend to initiate discussions concerning the possibility of entering into a mutually advantageous\nbusiness relationship whereby Recipient shall perform certain services on behalf of and for the benefit of Company (the “Limited Purpose”).\nB. To facilitate the disclosure of certain Confidential Information (as defined below) by Company to Recipient, the parties desire to enter into\nthis Agreement.\nAGREEMENT\nNow therefore, in consideration of the foregoing recitals, which are hereby incorporated into this Agreement by reference, and the mutual\ncovenants and agreements contained herein, and other good and valuable consideration, the adequacy and receipt of which is hereby acknowledged,\nthe parties agree as follows:\n1. Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following meanings:\n(a) “Confidential Information” mean any information, whether written, oral, magnetic, photographic, optical, or other form, tangible or\nintangible, which has been, or after the date hereof will be, furnished or disclosed by Company, or its employees, consultants, representatives\nor agents, or which Recipient may have access to in connection with the Limited Purpose, which has been designated as being confidential, or\nwhich under the circumstances of disclosure reasonably ought to be treated as confidential, including but not limited to any information\npertaining to or regarding the business, financial condition, pricing, sales, strategies, plans, customers, suppliers, properties and operations of\nCompany (including such information visually available to Recipient at Company’s premises or Company presentations), and including\nwithout limitation all technical information of any nature whatsoever and all business plans, inventions, trade secrets, know-how,\nmethodologies, concepts, techniques, discoveries, computer programs (including functionality and source code), processes, drawings, designs,\nresearch, plans or specifications relating thereto.\n(b) “Related Party” or “Related Parties” shall mean the directors, officers, employees, legal, tax and other professional advisors or\nconsultants of Recipient, to the extent such entities or persons receive Confidential Information.\n2. Non-Disclosure and Restricted Use of Confidential Information.\n(a) Recipient shall keep in strictest confidence and trust all Confidential Information and, except upon the express prior written consent\nof Company, Recipient shall (i) not disclose any Confidential Information to any other entity or person, and (ii) use the Confidential\nInformation solely as necessary to implement the Limited Purpose and not for Recipient’s own benefit or for the benefit of any other entity or\nperson. Recipient shall take all reasonable safeguards to prevent the disclosure or misuse of the Confidential Information, including without\nlimitation such measures as the Recipient takes to safeguard its own confidential information, and shall not photocopy, transcribe or otherwise\nreproduce or modify any of the Confidential Information except as necessary to implement the Limited Purpose or otherwise upon the express\nwritten consent of the Company.\n10\n(b) Recipient may disclose the Confidential Information to Related Parties on a “need to know” basis only. Recipient shall inform all\nRelated Parties who have access to the Confidential Information that such Confidential Information is confidential and proprietary to Company\nand shall require each such Related Party to agree to restrictions and obligations at least as strict as those set forth herein prior to disclosure of\nany Confidential Information. Recipient shall diligently enforce any and all confidentiality agreements with Related Parties and shall be\nresponsible and liable for any breach of the confidentiality obligations and restrictions on use set forth herein by any Related Party.\n(c) The obligations of Recipient stated in the preceding paragraphs of this Section 2 shall not apply to information that (i) is or becomes\ngenerally known or available to the public through no wrongful act of the Recipient; (ii) was in the Recipient's possession at the time of\ndisclosure or receipt, as evidenced and verified by prior tangible evidence, and was not acquired under an obligation of confidence;\n(iii) Recipient demonstrates was rightfully received by it from a third party after the time it was disclosed or obtained hereunder, provided that\nsuch third party was not under an obligation of confidence with the Company at the time of the third party’s disclosure to Recipient; (iv) is\nindependently developed by Recipient without use of or reference to the Confidential Information and without breach of this Agreement, as\nevidenced and verified by prior tangible evidence; or (v) is required to be disclosed in a judicial or administrative proceeding, or as otherwise\nrequired to be disclosed by law, in any such case after all reasonable legal remedies for maintaining such information in confidence have been\nexhausted, including, but not limited to, giving Company as much advance notice of the possibility of such disclosure as practical so Company\nmay attempt to stop such disclosure or obtain a protective order concerning such disclosure. Recipient shall provide Company with written\nnotice no less than five (5) days prior to the disclosure or use of any information of Company pursuant to this Section 2(c), subsections\n(i) through (v).\n(d) Recipient shall (i) notify Company immediately of any unauthorized possession, use or knowledge of the Confidential Information,\n(ii) promptly furnish Company full details of such possession, use or knowledge, and (iii) cooperate with Company against third parties as may\nbe deemed necessary by Company to protect its proprietary rights in the Confidential Information.\n3. Term of Agreement. This Agreement shall be effective as of the date of first disclosure of Confidential Information and may be terminated,\nwithout cause, with respect to future disclosures upon thirty (30) days prior written notice to the other party; provided however, that all rights and\nobligations accrued prior to such termination shall survive the termination of this Agreement. Notwithstanding anything herein to the contrary, the\nnondisclosure obligations and restrictions on use with respect to any Confidential Information shall continue and bind Recipient for a period of five\n(5) years after the date of the last disclosure of Confidential Information hereunder, except that the nondisclosure obligations and restrictions on use\nwith respect to any Confidential Information that constitutes a trade secret shall continue in effect for so long as the Confidential Information\nremains a trade secret under applicable law. Any termination or expiration of this Agreement shall be without prejudice to the rights of Company\nagainst Recipient in respect of any claim or breach of any of the provisions of this Agreement.\n4. Return of Confidential Information. Recipient shall return to Company, or at Company’s request, destroy, and shall cause its Related Parties\nto return or destroy, the Confidential Information and all copies, transcriptions or other reproductions of, and any notes relating to, the Confidential\nInformation, including without limitation, any memoranda, photocopies, computer files and libraries, computer-generated data or other similar\nrepositories or archives, upon (i) the accomplishment of the purpose for which the Confidential Information was provided, or (ii) receipt of a written\nnotice from Company requesting return or destruction of the Confidential Information, and upon request, shall provide to Company written\ncertification signed by an officer of Recipient that it has complied with the foregoing.\n5. Ownership.\n(a) All Confidential Information is and shall remain the property of Company. By disclosing Confidential Information to Recipient,\nCompany does not grant any express or implied right to Recipient to or under any patents, copyrights, trademarks, or trade secret information\nexcept as\n11\nrequired to implement the Limited Purpose. Company reserves without prejudice the ability to protect its rights under any such patents,\ncopyrights, trademarks, or trade secrets. Recipient shall not remove any proprietary, copyright, trade secret or other legend from any form of\nthe Confidential Information. Recipient shall, at the reasonable written request of Company and at Company’s expense, add to the Confidential\nInformation any proprietary, copyright, trade secret or other legend or modify the same, which Company deems necessary to protect its\nintellectual property rights. Without limiting the foregoing, Company shall retain all right, title, and interest in and to all forms of Confidential\nInformation delivered or disclosed hereunder, including, without limitation, any patents, copyrights, trademarks, service marks, trade dress,\nlogos, technical information, know-how, trade secrets, and any modifications or enhancements thereto (whether developed by Company,\nRecipient, any Related Party, or on either party’s behalf) or other intellectual property rights throughout the world, whether currently existing\nor hereafter developed or acquired, and all applications, disclosures and registrations with respect thereto (collectively, “IP Rights”). If\nRecipient or any third party engaged by Recipient is deemed to have any ownership interest or rights in any IP Rights in the Confidential\nInformation, then Recipient, for no additional consideration, shall assign and/or cause such third party to assign, and Recipient does hereby\nassign, all of such ownership interest and rights exclusively and irrevocably to Company. Recipient shall cooperate with Company and shall\ncause to be executed all such instruments and documents as Company reasonably may request in connection with such assignments and shall\ndo all other lawfully permitted acts reasonably required to further the intent of this Section 5; provided, however, this Agreement shall be\neffective regardless of whether any such additional documents are executed. Recipient shall not dispute or contest, directly or indirectly,\nCompany’s right, title and interest in or to, or the validity and enforceability of, any IP Rights in the Confidential Information (including the\nattempt to register or record the same in any jurisdiction). Notwithstanding anything herein to the contrary, this Section 5 shall survive any\ntermination or expiration of this Agreement.\n(b) Recipient may from time to time provide suggestions, comments or other feedback (“Feedback”) to Company with respect to the\nConfidential Information. Both parties agree that all Feedback is and shall be given entirely voluntarily. Recipient shall not give Feedback that\nis subject to license terms that seek to require any Company product, technology, service or documentation incorporating or derived from such\nFeedback, or any Company intellectual property, to be licensed or otherwise shared with any third party. Recipient hereby acknowledges and\nagrees that all Feedback shall be deemed Confidential Information of Company, subject to the obligations of confidentiality and restricted use\nprovided under this Agreement. Furthermore, Recipient hereby acknowledges and agrees that Company shall have the exclusive right to use,\ndisclose, reproduce, license or otherwise distribute, and exploit the Feedback as Company sees fit, entirely without obligation or restriction of\nany kind on account of intellectual property rights or otherwise.\n6. Accuracy and Completeness of Confidential Information. The disclosure of any Confidential Information to Recipient shall be solely in\nCompany’s discretion. This Agreement shall not require Company to disclose any information or to require the consummation of any transaction in\nconnection with which the Confidential Information is disclosed. Notwithstanding anything to the contrary, Company shall not be deemed to have\nmade any representation or warranty to Recipient concerning the accuracy or completeness of any Confidential Information, except to the extent that\nsuch representation or warranty may be expressly set forth in a definitive written agreement concerning any subsequent business relationship.\n7. Independent Contractors. Neither this Agreement, nor any terms and conditions contained herein, will be construed as creating a partnership,\njoint venture, or agency relationship or as granting a franchise. The parties are independent contractors each acting for its own account, and neither is\nauthorized to make any commitment or representation, express or implied, on the other’s behalf.\n8. Remedies. Recipient acknowledges and agrees that Company would be irreparably harmed if any of the Confidential Information were to be\ndisclosed to third parties, or if any use were to be made of the Confidential Information other than that specified in this Agreement, and further\nagrees that Company shall have the right to seek and obtain injunctive relief upon any violation or threatened violation of the terms of this\nAgreement\n12\nwithout the necessity of posting bond or other security, in addition to all other rights and remedies available to Company at law or in equity. Any\ntrade secrets of the Company will be entitled to all of the protections and benefits under the applicable Uniform Trade Secrets Act and any other\napplicable law. If any information that Company deems to be a trade secret is found by a court of competent jurisdiction not to be a trade secret for\npurposes of this Agreement, such information nevertheless will be considered Confidential Information for purposes of this Agreement. Recipient\nhereby waives any requirement that the Company submit proof of the economic value of any trade secret.\n9. Indemnity. Recipient shall indemnify Company for and against all damages, losses, claims, costs (including reasonable attorneys’ fees),\nexpenses and liabilities, suffered or incurred as a direct or indirect result of Recipient failing (whether intentionally or not) to fully comply with its\ncovenants and obligations under this Agreement, including by virtue of any act of any Related Party.\n10. Entire Agreement. This Agreement sets forth the complete and exclusive understanding of the parties regarding the subject matter of this\nAgreement and supersedes all prior agreements, understandings, and communications, oral or written, between the parties regarding the subject\nmatter of this Agreement. This Agreement is not, however, intended to limit any rights that Company may have under trade secret, copyright, patent,\ntrademark or other laws that may apply to the subject matter of this Agreement both during and after the term of this Agreement.\n11. Amendments. No amendment or waiver of any term of this Agreement shall be effective unless such amendment or waiver is in writing\nand is signed by each of the parties hereto.\n12. Assignment. Recipient shall not assign or transfer, in whole or in part and whether by contract or operation of law, this Agreement, or any\nrights or obligations hereunder, without the prior written consent of Company. Subject to the foregoing, this Agreement shall be binding upon, and\nshall inure to the benefit of, the parties and their respective representatives, successors and assigns.\n13. Attorneys’ Fees. If any party shall commence any action or proceeding against the other in order to enforce the provisions of this\nAgreement, or to recover damages as the result of the alleged breach of any of the provisions of this Agreement, the prevailing party therein shall be\nentitled to recover all reasonable costs incurred in connection therewith against the party commencing such action or the party who has breached this\nAgreement, as the case may be, including reasonable attorneys’ fees.\n14. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, other than such\nlaws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of Florida. Any suit to\nenforce any provision of this Agreement, or arising out of or based upon this Agreement, shall be brought exclusively in the United States District\nCourt for the District of Florida or the District Court in and for the city of Sarasota and the County of Sarasota, State of Florida. Each party hereby\nagrees that such courts shall have in personam jurisdiction and venue with respect to such party, and each party hereby submits to the in personam\njurisdiction and venue of such courts.\n15. Severability. If any provision of the Agreement shall be held by a court competent jurisdiction to be illegal, invalid or unenforceable, the\nparties hereby authorize the court to modify such provision to the minimum extent necessary to effectuate the parties’ intentions and the remaining\nprovisions shall remain in full force and effect.\n[SIGNATURE PAGE FOLLOWS]\n13\nThis Agreement has been executed as of the date first set forth above.\nSun Energy Solar, Inc.\nBy: /s/ R. Craig Hall\nTitle: President\nDate: June 29, 2006\nRecipient\nSignature: /s/ Carl L. Smith\nPrinted: Carl L. Smith\nDate:\nJune 29, 2006\n14	NON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into this 10th day of July, 2006 by and between Sun Energy Solar, Inc., a\nDelaware company having an address at 6408 Parkland Drive, Suite 104, Sarasota, Florida 34243, United States of America (“Company”), and Carl\nL. Smith, an individual residing in the state of Florida, and having an address at 847 Macewen Dr, Osprey, FL. 34229(“Recipient”).\nRECITALS\nA. Company and Recipient have initiated or intend to initiate discussions concerning the possibility of entering into a mutually advantageous\nbusiness relationship whereby Recipient shall perform certain services on behalf of and for the benefit of Company (the “Limited Purpose”).\nB. To facilitate the disclosure of certain Confidential Information (as defined below) by Company to Recipient, the parties desire to enter into\nthis Agreement.\nAGREEMENT\nNow therefore, in consideration of the foregoing recitals, which are hereby incorporated into this Agreement by reference, and the mutual\ncovenants and agreements contained herein, and other good and valuable consideration, the adequacy and receipt of which is hereby acknowledged,\nthe parties agree as follows:\n1. Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following meanings:\n(a) “Confidential Information” mean any information, whether written, oral, magnetic, photographic, optical, or other form, tangible or\nintangible, which has been, or after the date hereof will be, furnished or disclosed by Company, or its employees, consultants, representatives\nor agents, or which Recipient may have access to in connection with the Limited Purpose, which has been designated as being confidential, or\nwhich under the circumstances of disclosure reasonably ought to be treated as confidential, including but not limited to any information\npertaining to or regarding the business, financial condition, pricing, sales, strategies, plans, customers, suppliers, properties and operations of\nCompany (including such information visually available to Recipient at Company’s premises or Company presentations), and including\nwithout limitation all technical information of any nature whatsoever and all business plans, inventions, trade secrets, know-how,\nmethodologies, concepts, techniques, discoveries, computer programs (including functionality and source code), processes, drawings, designs,\nresearch, plans or specifications relating thereto.\n(b) “Related Party” or “Related Parties” shall mean the directors, officers, employees, legal, tax and other professional advisors or\nconsultants of Recipient, to the extent such entities or persons receive Confidential Information.\n2. Non-Disclosure and Restricted Use of Confidential Information.\n(a) Recipient shall keep in strictest confidence and trust all Confidential Information and, except upon the express prior written consent\nof Company, Recipient shall (i) not disclose any Confidential Information to any other entity or person, and (ii) use the Confidential\nInformation solely as necessary to implement the Limited Purpose and not for Recipient’s own benefit or for the benefit of any other entity or\nperson. Recipient shall take all reasonable safeguards to prevent the disclosure or misuse of the Confidential Information, including without\nlimitation such measures as the Recipient takes to safeguard its own confidential information, and shall not photocopy, transcribe or otherwise\nreproduce or modify any of the Confidential Information except as necessary to implement the Limited Purpose or otherwise upon the express\nwritten consent of the Company.\n10\n(b) Recipient may disclose the Confidential Information to Related Parties on a “need to know” basis only. Recipient shall inform all\nRelated Parties who have access to the Confidential Information that such Confidential Information is confidential and proprietary to Company\nand shall require each such Related Party to agree to restrictions and obligations at least as strict as those set forth herein prior to disclosure of\nany Confidential Information. Recipient shall diligently enforce any and all confidentiality agreements with Related Parties and shall be\nresponsible and liable for any breach of the confidentiality obligations and restrictions on use set forth herein by any Related Party.\n(c) The obligations of Recipient stated in the preceding paragraphs of this Section 2 shall not apply to information that (i) is or becomes\ngenerally known or available to the public through no wrongful act of the Recipient; (ii) was in the Recipient's possession at the time of\ndisclosure or receipt, as evidenced and verified by prior tangible evidence, and was not acquired under an obligation of confidence;\n(iii) Recipient demonstrates was rightfully received by it from a third party after the time it was disclosed or obtained hereunder, provided that\nsuch third party was not under an obligation of confidence with the Company at the time of the third party’s disclosure to Recipient; (iv) is\nindependently developed by Recipient without use of or reference to the Confidential Information and without breach of this Agreement, as\nevidenced and verified by prior tangible evidence; or (v) is required to be disclosed in a judicial or administrative proceeding, or as otherwise\nrequired to be disclosed by law, in any such case after all reasonable legal remedies for maintaining such information in confidence have been\nexhausted, including, but not limited to, giving Company as much advance notice of the possibility of such disclosure as practical so Company\nmay attempt to stop such disclosure or obtain a protective order concerning such disclosure. Recipient shall provide Company with written\nnotice no less than five (5) days prior to the disclosure or use of any information of Company pursuant to this Section 2(c), subsections\n(i) through (v).\n(d) Recipient shall (i) notify Company immediately of any unauthorized possession, use or knowledge of the Confidential Information,\n(ii) promptly furnish Company full details of such possession, use or knowledge, and (iii) cooperate with Company against third parties as may\nbe deemed necessary by Company to protect its proprietary rights in the Confidential Information.\n3. Term of Agreement. This Agreement shall be effective as of the date of first disclosure of Confidential Information and may be terminated,\nwithout cause, with respect to future disclosures upon thirty (30) days prior written notice to the other party; provided however, that all rights and\nobligations accrued prior to such termination shall survive the termination of this Agreement. Notwithstanding anything herein to the contrary, the\nnondisclosure obligations and restrictions on use with respect to any Confidential Information shall continue and bind Recipient for a period of five\n(5) years after the date of the last disclosure of Confidential Information hereunder, except that the nondisclosure obligations and restrictions on use\nwith respect to any Confidential Information that constitutes a trade secret shall continue in effect for so long as the Confidential Information\nremains a trade secret under applicable law. Any termination or expiration of this Agreement shall be without prejudice to the rights of Company\nagainst Recipient in respect of any claim or breach of any of the provisions of this Agreement.\n4. Return of Confidential Information. Recipient shall return to Company, or at Company’s request, destroy, and shall cause its Related Parties\nto return or destroy, the Confidential Information and all copies, transcriptions or other reproductions of, and any notes relating to, the Confidential\nInformation, including without limitation, any memoranda, photocopies, computer files and libraries, computer-generated data or other similar\nrepositories or archives, upon (i) the accomplishment of the purpose for which the Confidential Information was provided, or (ii) receipt of a written\nnotice from Company requesting return or destruction of the Confidential Information, and upon request, shall provide to Company written\ncertification signed by an officer of Recipient that it has complied with the foregoing.\n5. Ownership.\n(a) All Confidential Information is and shall remain the property of Company. By disclosing Confidential Information to Recipient,\nCompany does not grant any express or implied right to Recipient to or under any patents, copyrights, trademarks, or trade secret information\nexcept as\n11\nrequired to implement the Limited Purpose. Company reserves without prejudice the ability to protect its rights under any such patents,\ncopyrights, trademarks, or trade secrets. Recipient shall not remove any proprietary, copyright, trade secret or other legend from any form of\nthe Confidential Information. Recipient shall, at the reasonable written request of Company and at Company’s expense, add to the Confidential\nInformation any proprietary, copyright, trade secret or other legend or modify the same, which Company deems necessary to protect its\nintellectual property rights. Without limiting the foregoing, Company shall retain all right, title, and interest in and to all forms of Confidential\nInformation delivered or disclosed hereunder, including, without limitation, any patents, copyrights, trademarks, service marks, trade dress,\nlogos, technical information, know-how, trade secrets, and any modifications or enhancements thereto (whether developed by Company,\nRecipient, any Related Party, or on either party’s behalf) or other intellectual property rights throughout the world, whether currently existing\nor hereafter developed or acquired, and all applications, disclosures and registrations with respect thereto (collectively, “IP Rights”). If\nRecipient or any third party engaged by Recipient is deemed to have any ownership interest or rights in any IP Rights in the Confidential\nInformation, then Recipient, for no additional consideration, shall assign and/or cause such third party to assign, and Recipient does hereby\nassign, all of such ownership interest and rights exclusively and irrevocably to Company. Recipient shall cooperate with Company and shall\ncause to be executed all such instruments and documents as Company reasonably may request in connection with such assignments and shall\ndo all other lawfully permitted acts reasonably required to further the intent of this Section 5; provided, however, this Agreement shall be\neffective regardless of whether any such additional documents are executed. Recipient shall not dispute or contest, directly or indirectly,\nCompany’s right, title and interest in or to, or the validity and enforceability of, any IP Rights in the Confidential Information (including the\nattempt to register or record the same in any jurisdiction). Notwithstanding anything herein to the contrary, this Section 5 shall survive any\ntermination or expiration of this Agreement.\n(b) Recipient may from time to time provide suggestions, comments or other feedback (“Feedback”) to Company with respect to the\nConfidential Information. Both parties agree that all Feedback is and shall be given entirely voluntarily. Recipient shall not give Feedback that\nis subject to license terms that seek to require any Company product, technology, service or documentation incorporating or derived from such\nFeedback, or any Company intellectual property, to be licensed or otherwise shared with any third party. Recipient hereby acknowledges and\nagrees that all Feedback shall be deemed Confidential Information of Company, subject to the obligations of confidentiality and restricted use\nprovided under this Agreement. Furthermore, Recipient hereby acknowledges and agrees that Company shall have the exclusive right to use,\ndisclose, reproduce, license or otherwise distribute, and exploit the Feedback as Company sees fit, entirely without obligation or restriction of\nany kind on account of intellectual property rights or otherwise.\n6. Accuracy and Completeness of Confidential Information. The disclosure of any Confidential Information to Recipient shall be solely in\nCompany’s discretion. This Agreement shall not require Company to disclose any information or to require the consummation of any transaction in connection with which the Confidential Information is disclosed. Notwithstanding anything to the contrary, Company shall not be deemed to have made any representation or warranty to Recipient concerning the accuracy or completeness of any Confidential Information, except to the extent that such representation or warranty may be expressly set forth in a definitive written agreement concerning any subsequent business relationship. 7. Independent Contractors. Neither this Agreement, nor any terms and conditions contained herein, will be construed as creating a partnership,\njoint venture, or agency relationship or as granting a franchise. The parties are independent contractors each acting for its own account, and neither is authorized to make any commitment or representation, express or implied, on the other’s behalf. 8. Remedies. Recipient acknowledges and agrees that Company would be irreparably harmed if any of the Confidential Information were to be\ndisclosed to third parties, or if any use were to be made of the Confidential Information other than that specified in this Agreement, and further agrees that Company shall have the right to seek and obtain injunctive relief upon any violation or threatened violation of the terms of this Agreement 12\nwithout the necessity of posting bond or other security, in addition to all other rights and remedies available to Company at law or in equity. Any\ntrade secrets of the Company will be entitled to all of the protections and benefits under the applicable Uniform Trade Secrets Act and any other\napplicable law. If any information that Company deems to be a trade secret is found by a court of competent jurisdiction not to be a trade secret for\npurposes of this Agreement, such information nevertheless will be considered Confidential Information for purposes of this Agreement. Recipient\nhereby waives any requirement that the Company submit proof of the economic value of any trade secret.\n9. Indemnity. Recipient shall indemnify Company for and against all damages, losses, claims, costs (including reasonable attorneys’ fees),\nexpenses and liabilities, suffered or incurred as a direct or indirect result of Recipient failing (whether intentionally or not) to fully comply with its\ncovenants and obligations under this Agreement, including by virtue of any act of any Related Party.\n10. Entire Agreement. This Agreement sets forth the complete and exclusive understanding of the parties regarding the subject matter of this\nAgreement and supersedes all prior agreements, understandings, and communications, oral or written, between the parties regarding the subject\nmatter of this Agreement. This Agreement is not, however, intended to limit any rights that Company may have under trade secret, copyright, patent,\ntrademark or other laws that may apply to the subject matter of this Agreement both during and after the term of this Agreement.\n11. Amendments. No amendment or waiver of any term of this Agreement shall be effective unless such amendment or waiver is in writing\nand is signed by each of the parties hereto.\n12. Assignment. Recipient shall not assign or transfer, in whole or in part and whether by contract or operation of law, this Agreement, or any\nrights or obligations hereunder, without the prior written consent of Company. Subject to the foregoing, this Agreement shall be binding upon, and\nshall inure to the benefit of, the parties and their respective representatives, successors and assigns.\n13. Attorneys’ Fees. If any party shall commence any action or proceeding against the other in order to enforce the provisions of this\nAgreement, or to recover damages as the result of the alleged breach of any of the provisions of this Agreement, the prevailing party therein shall be\nentitled to recover all reasonable costs incurred in connection therewith against the party commencing such action or the party who has breached this\nAgreement, as the case may be, including reasonable attorneys’ fees.\n14. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, other than such\nlaws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of Florida. Any suit to\nenforce any provision of this Agreement, or arising out of or based upon this Agreement, shall be brought exclusively in the United States District\nCourt for the District of Florida or the District Court in and for the city of Sarasota and the County of Sarasota, State of Florida. Each party hereby\nagrees that such courts shall have in personam jurisdiction and venue with respect to such party, and each party hereby submits to the in personam\njurisdiction and venue of such courts.\n15. Severability. If any provision of the Agreement shall be held by a court competent jurisdiction to be illegal, invalid or unenforceable, the\nparties hereby authorize the court to modify such provision to the minimum extent necessary to effectuate the parties’ intentions and the remaining\nprovisions shall remain in full force and effect.\n[SIGNATURE PAGE FOLLOWS]\n13\nThis Agreement has been executed as of the date first set forth above.\n14\nSun Energy Solar, Inc.\nBy: /s/R. Craig Hall\nTitle: President\nDate: June 29, 2006\nRecipient\nSignature: /s/ Carl L. Smith\nPrinted: Carl L. Smith\nDate: June 29, 2006	NON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT ("Agreement") is entered into this 10th day of July, 2006 by and between Sun Energy Solar, Inc., a\nDelaware company having an address at 6408 Parkland Drive, Suite 104, Sarasota, Florida 34243, United States of America ("Company"), and Carl\nL. Smith, an individual residing in the state of Florida, and having an address at 847 Macewen Dr, Osprey, FL 4229("Recipient").\nRECITALS\nA. Company and Recipient have initiated or intend to initiate discussions concerning the possibility of entering into a mutually advantageous\nbusiness relationship whereby Recipient shall perform certain services on behalf of and for the benefit of Company (the "Limited Purpose").\nB. To facilitate the disclosure of certain Confidential Information (as defined below) by Company to Recipient, the parties desire to enter into\nthis Agreement.\nAGREEMENT\nNow therefore, in consideration of the foregoing recitals, which are hereby incorporated into this Agreement by reference, and the mutual\ncovenants and agreements contained herein, and other good and valuable consideration, the adequacy and receipt of which is hereby acknowledged,\nthe parties agree as follows:\n1. Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following meanings:\n(a) "Confidential Information" mean any information, whether written, oral, magnetic, photographic, optical, or other form, tangible or\nintangible, which has been, or after the date hereof will be, furnished or disclosed by Company, or its employees, consultants, representatives\nor agents, or which Recipient may have access to in connection with the Limited Purpose, which has been designated as being confidential, or\nwhich under the circumstances of disclosure reasonably ought to be treated as confidential, including but not limited to any information\npertaining to or regarding the business, financial condition, pricing, sales, strategies, plans, customers, suppliers, properties and operations of\nCompany (including such information visually available to Recipient at Company's premises or Company presentations), and including\nwithout limitation all technical information of any nature whatsoever and all business plans, inventions, trade secrets, know-how,\nmethodologies, concepts, techniques, discoveries, computer programs (including functionality and source code), processes, drawings, designs,\nresearch, plans or specifications relating thereto.\n(b) "Related Party" or "Related Parties" shall mean the directors, officers, employees, legal, tax and other professional advisors or\nconsultants of Recipient, to the extent such entities or persons receive Confidential Information.\n2. Non-Disclosure and Restricted Use of Confidential Information.\n(a) Recipient shall keep in strictest confidence and trust all Confidential Information and, except upon the express prior written consent\nof Company, Recipient shall (i) not disclose any Confidential Information to any other entity or person, and (ii) use the Confidential\nInformation solely as necessary to implement the Limited Purpose and not for Recipient's own benefit or for the benefit of any other entity or\nperson. Recipient shall take all reasonable safeguards to prevent the disclosure or misuse of the Confidential Information, including without\nlimitation such measures as the Recipient takes to safeguard its own confidential information, and shall not photocopy, transcribe or otherwise\nreproduce or modify any of the Confidential Information except as necessary to implement the Limited Purpose or otherwise upon the express\nwritten consent of the Company.\n10\n(b) Recipient may disclose the Confidential Information to Related Parties on a "need to know" basis only. Recipient shall inform all\nRelated Parties who have access to the Confidential Information that such Confidential Information is confidential and proprietary to Company\nand shall require each such Related Party to agree to restrictions and obligations at least as strict as those set forth herein prior to disclosure of\nany Confidential Information. Recipient shall diligently enforce any and all confidentiality agreements with Related Parties and shall be\nresponsible and liable for any breach of the confidentiality obligations and restrictions on use set forth herein by any Related Party.\n(c) The obligations of Recipient stated in the preceding paragraphs of this Section 2 shall not apply to information that (i) is or becomes\ngenerally known or available to the public through no wrongful act of the Recipient; (ii) was in the Recipient's possession at the time of\ndisclosure or receipt, as evidenced and verified by prior tangible evidence, and was not acquired under an obligation of confidence;\n(iii) Recipient demonstrates was rightfully received by it from a third party after the time it was disclosed or obtained hereunder, provided that\nsuch third party was not under an obligation of confidence with the Company at the time of the third party's disclosure to Recipient; (iv) is\nindependently developed by Recipient without use of or reference to the Confidential Information and without breach of this Agreement, as\nevidenced and verified by prior tangible evidence; or (v) is required to be disclosed in a judicial or administrative proceeding, or as otherwise\nrequired to be disclosed by law, in any such case after all reasonable legal remedies for maintaining such information in confidence have been\nexhausted, including, but not limited to, giving Company as much advance notice of the possibility of such disclosure as practical so Company\nmay attempt to stop such disclosure or obtain a protective order concerning such disclosure. Recipient shall provide Company with written\nnotice no less than five (5) days prior to the disclosure or use of any information of Company pursuant to this Section 2(c), subsections\n(i) through (v).\n(d) Recipient shall (i) notify Company immediately of any unauthorized possession, use or knowledge of the Confidential Information,\n(ii) promptly furnish Company full details of such possession, use or knowledge, and (iii) cooperate with Company against third parties as may\nbe deemed necessary by Company to protect its proprietary rights in the Confidential Information.\n3. Term of Agreement. This Agreement shall be effective as of the date of first disclosure of Confidential Information and may be terminated,\nwithout cause, with respect to future disclosures upon thirty (30) days prior written notice to the other party; provided however, that all rights and\nobligations accrued prior to such termination shall survive the termination of this Agreement. Notwithstanding anything herein to the contrary, the\nnondisclosure obligations and restrictions on use with respect to any Confidential Information shall continue and bind Recipient for a period of five\n(5) years after the date of the last disclosure of Confidential Information hereunder, except that the nondisclosure obligations and restrictions on use\nwith respect to any Confidential Information that constitutes a trade secret shall continue in effect for so long as the Confidential Information\nremains a trade secret under applicable law. Any termination or expiration of this Agreement shall be without prejudice to the rights of Company\nagainst Recipient in respect of any claim or breach of any of the provisions of this Agreement.\n4. Return of Confidential Information Recipient shall return to Company, or at Company's request, destroy, and shall cause its Related Parties\nto return or destroy, the Confidential Information and all copies, transcriptions or other reproductions of, and any notes relating to, the Confidential\nInformation, including without limitation, any memoranda, photocopies, computer files and libraries, computer-generated data or other similar\nrepositories or archives, upon (i) the accomplishment of the purpose for which the Confidential Information was provided, or (ii) receipt of a written\nnotice from Company requesting return or destruction of the Confidential Information, and upon request, shall provide to Company written\ncertification signed by an officer of Recipient that it has complied with the foregoing.\n5. Ownership.\n(a) All Confidential Information is and shall remain the property of Company. By disclosing Confidential Information to Recipient,\nCompany does not grant any express or implied right to Recipient to or under any patents, copyrights, trademarks, or trade secret information\nexcept as\n11\nrequired to implement the Limited Purpose. Company reserves without prejudice the ability to protect its rights under any such patents,\ncopyrights, trademarks, or trade secrets. Recipient shall not remove any proprietary, copyright, trade secret or other legend from any form of\nthe Confidential Information. Recipient shall, at the reasonable written request of Company and at Company's expense, add to the Confidential\nInformation any proprietary, copyright, trade secret or other legend or modify the same, which Company deems necessary to protect its\nintellectual property rights. Without limiting the foregoing, Company shall retain all right, title, and interest in and to all forms of Confidential\nInformation delivered or disclosed hereunder, including, without limitation, any patents, copyrights, trademarks, service marks, trade dress,\nlogos, technical information, know-how, trade secrets, and any modifications or enhancements thereto (whether developed by Company,\nRecipient, any Related Party, or on either party's behalf) or other intellectual property rights throughout the world, whether currently existing\nor hereafter developed or acquired, and all applications, disclosures and registrations with respect thereto (collectively, "IP Rights"). If\nRecipient or any third party engaged by Recipient is deemed to have any ownership interest or rights in any IP Rights in the Confidential\nInformation, then Recipient, for no additional consideration, shall assign and/or cause such third party to assign, and Recipient does hereby\nassign, all of such ownership interest and rights exclusively and irrevocably to Company. Recipient shall cooperate with Company and shall\ncause to be executed all such instruments and documents as Company reasonably may request in connection with such assignments and shall\ndo all other lawfully permitted acts reasonably required to further the intent of this Section 5; provided, however, this Agreement shall be\neffective regardless of whether any such additiona documents are executed. Recipient shall not dispute or contest, directly or indirectly,\nCompany's right, title and interest in or to, or the validity and enforceability of, any IP Rights in the Confidential Information (including the\nattempt to register or record the same in any jurisdiction). Notwithstanding anything herein to the contrary, this Section 5 shall survive any\ntermination or expiration of this Agreement.\n(b) Recipient may from time to time provide suggestions, comments or other feedback ("Feedback") to Company with respect to the\nConfidential Information. Both parties agree that all Feedback is and shall be given entirely voluntarily. Recipient shall not give Feedback that\nis subject to license terms that seek to require any Company product, technology, service or documentation incorporating or derived from such\nFeedback, or any Company intellectual property, to be licensed or otherwise shared with any third party. Recipient hereby acknowledges and\nagrees that all Feedback shall be deemed Confidential Information of Company, subject to the obligations of confidentiality and restricted use\nprovided under this Agreement. Furthermore, Recipient hereby acknowledges and agrees that Company shall have the exclusive right to use,\ndisclose, reproduce, license or otherwise distribute, and exploit the Feedback as Company sees fit, entirely without obligation or restriction of\nany kind on account of intellectual property rights or otherwise.\n6. Accuracy and Completeness of Confidential Information. The disclosure of any Confidential Information to Recipient shall be solely in\nCompany's discretion. This Agreement shall not require Company to disclose any information or to require the consummation of any transaction\nin\nconnection with which the Confidential Information is disclosed. Notwithstanding anything to the contrary, Company shall not be deemed to have\nmade any representation or warranty to Recipient concerning the accuracy or completeness of any Confidential Information, except to the extent that\nsuch representation or warranty may be expressly set forth in a definitive written agreement concerning any subsequent business relationship.\n7. Independent Contractors. Neither this Agreement, nor any terms and conditions contained herein, will be construed as creating a partnership,\njoint venture, or agency relationship or as granting a franchise. The parties are independent contractors each acting for its own account, and neither\nis\nauthorized to make any commitment or representation, express or implied, on the other's behalf.\n8.\nRemedies.\nRecipient\nacknowledges\nand\nagrees\nthat\nCompany\nwould\nbe\nirreparably\nharmed\nif\nany\nof\nthe\nConfidential\nInformation\nwere\nto\nbe\ndisclosed to third parties, or if any use were to be made of the Confidential Information other than that specified in this Agreement, and further\nagrees that Company shall have the right to seek and obtain injunctive relief upon any violation or threatened violation of the terms of this\nAgreement\n12\nwithout the necessity of posting bond or other security, in addition to all other rights and remedies available to Company at law or in equity. Any\ntrade secrets of the Company will be entitled to all of the protections and benefits under the applicable Uniform Trade Secrets Act and any other\napplicable law. If any information that Company deems to be a trade secret is found by a court of competent jurisdiction not to be a trade secret for\npurposes of this Agreement, such information nevertheless will be considered Confidential Information for purposes of this Agreement. Recipient\nhereby waives any requirement that the Company submit proof of the economic value of any trade secret.\n9. Indemnity.. Recipient shall indemnify Company for and against all damages, losses, claims, costs (including reasonable attorneys' fees),\nexpenses and liabilities, suffered or incurred as a direct or indirect result of Recipient failing (whether intentionally or not) to fully comply with its\ncovenants and obligations under this Agreement, including by virtue of any act of any Related Party.\n10. Entire Agreement. This Agreement sets forth the complete and exclusive understanding of the parties regarding the subject matter of this\nAgreement and supersedes all prior agreements, understandings, and communications, oral or written, between the parties regarding the subject\nmatter of this Agreement. This Agreement is not, however, intended to limit any rights that Company may have under trade secret, copyright, patent,\ntrademark or other laws that may apply to the subject matter of this Agreement both during and after the term of this Agreement.\n11. Amendments. No amendment or waiver of any term of this Agreement shall be effective unless such amendment or waiver is in writing\nand is signed by each of the parties hereto.\n12. Assignment. Recipient shall not assign or transfer, in whole or in part and whether by contract or operation of law, this Agreement, or any\nrights or obligations hereunder, without the prior written consent of Company. Subject to the foregoing, this Agreement shall be binding upon, and\nshall inure to the benefit of, the parties and their respective representatives, successors and assigns.\n13.\nAttorneys' Fees. If any party shall commence any action or proceeding against the other in order to enforce the provisions of this\nAgreement, or to recover damages as the result of the alleged breach of any of the provisions of this Agreement, the prevailing party therein shall be\nentitled to recover all reasonable costs incurred in connection therewith against the party commencing such action or the party who has breached this\nAgreement, as the case may be, including reasonable attorneys' fees.\n14. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, other than such\nlaws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of Florida. Any suit to\nenforce any provision of this Agreement, or arising out of or based upon this Agreement, shall be brought exclusively in the United States District\nCourt for the District of Florida or the District Court in and for the city of Sarasota and the County of Sarasota, State of Florida. Each party hereby\nagrees that such courts shall have inpersonam jurisdiction and venue with respect to such party, and each party hereby submits to the in personam\njurisdiction and venue of such courts.\n15. Severability.. If any provision of the Agreement shall be held by a court competent jurisdiction to be illegal, invalid or unenforceable, the\nparties hereby authorize the court to modify such provision to the minimum extent necessary to effectuate the parties' intentions and the remaining\nprovisions shall remain in full force and effect.\n[SIGNATURE PAGE FOLLOWS]\n13\nThis Agreement has been executed as of the date first set forth above.\nSun Energy Solar, Inc.\nBy: /s/ R. Craig Hall\nTitle: President\nDate: June 29, 2006\nRecipient\nSignature: /s/ Carl L. Smith\nPrinted:\nCarl L. Smith\nDate:\nJune 29, 2006\n14	NON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into this 10th day of July, 2006 by and between Sun Energy Solar, Inc., a\nDelaware company having an address at 6408 Parkland Drive, Suite 104, Sarasota, Florida 34243, United States of America (“Company”), and Carl\nL. Smith, an individual residing in the state of Florida, and having an address at 847 Macewen Dr, Osprey, FL 34229(“Recipient”).\nRECITALS\nA. Company and Recipient have initiated or intend to initiate discussions concerning the possibility of entering into a mutually advantageous\nbusiness relationship whereby Recipient shall perform certain services on behalf of and for the benefit of Company (the “Limited Purpose”).\nB. To facilitate the disclosure of certain Confidential Information (as defined below) by Company to Recipient, the parties desire to enter into\nthis Agreement.\nAGREEMENT\nNow therefore, in consideration of the foregoing recitals, which are hereby incorporated into this Agreement by reference, and the mutual\ncovenants and agreements contained herein, and other good and valuable consideration, the adequacy and receipt of which is hereby acknowledged,\nthe parties agree as follows:\n1. Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following meanings:\n(a) “Confidential Information” mean any information, whether written, oral, magnetic, photographic, optical, or other form, tangible or\nintangible, which has been, or after the date hereof will be, furnished or disclosed by Company, or its employees, consultants, representatives\nor agents, or which Recipient may have access to in connection with the Limited Purpose, which has been designated as being confidential, or\nwhich under the circumstances of disclosure reasonably ought to be treated as confidential, including but not limited to any information\npertaining to or regarding the business, financial condition, pricing, sales, strategies, plans, customers, suppliers, properties and operations of\nCompany (including such information visually available to Recipient at Company’s premises or Company presentations), and including\nwithout limitation all technical information of any nature whatsoever and all business plans, inventions, trade secrets, know-how,\nmethodologies, concepts, techniques, discoveries, computer programs (including functionality and source code), processes, drawings, designs,\nresearch, plans or specifications relating thereto.\n(b) “Related Party” or “Related Parties” shall mean the directors, officers, employees, legal, tax and other professional advisors or\nconsultants of Recipient, to the extent such entities or persons receive Confidential Information.\n2. Non-Disclosure and Restricted Use of Confidential Information.\n(a) Recipient shall keep in strictest confidence and trust all Confidential Information and, except upon the express prior written consent\nof Company, Recipient shall (i) not disclose any Confidential Information to any other entity or person, and (ii) use the Confidential\nInformation solely as necessary to implement the Limited Purpose and not for Recipient’s own benefit or for the benefit of any other entity or\nperson. Recipient shall take all reasonable safeguards to prevent the disclosure or misuse of the Confidential Information, including without\nlimitation such measures as the Recipient takes to safeguard its own confidential information, and shall not photocopy, transcribe or otherwise\nreproduce or modify any of the Confidential Information except as necessary to implement the Limited Purpose or otherwise upon the express\nwritten consent of the Company.\n10\n(b) Recipient may disclose the Confidential Information to Related Parties on a “need to know” basis only. Recipient shall inform all\nRelated Parties who have access to the Confidential Information that such Confidential Information is confidential and proprietary to Company\nand shall require each such Related Party to agree to restrictions and obligations at least as strict as those set forth herein prior to disclosure of\nany Confidential Information. Recipient shall diligently enforce any and all confidentiality agreements with Related Parties and shall be\nresponsible and liable for any breach of the confidentiality obligations and restrictions on use set forth herein by any Related Party.\n(c) The obligations of Recipient stated in the preceding paragraphs of this Section 2 shall not apply to information that (i) is or becomes\ngenerally known or available to the public through no wrongful act of the Recipient; (ii) was in the Recipient's possession at the time of\ndisclosure or receipt, as evidenced and verified by prior tangible evidence, and was not acquired under an obligation of confidence;\n(iii) Recipient demonstrates was rightfully received by it from a third party after the time it was disclosed or obtained hereunder, provided that\nsuch third party was not under an obligation of confidence with the Company at the time of the third party’s disclosure to Recipient; (iv) is\nindependently developed by Recipient without use of or reference to the Confidential Information and without breach of this Agreement, as\nevidenced and verified by prior tangible evidence; or (v) is required to be disclosed in a judicial or administrative proceeding, or as otherwise\nrequired to be disclosed by law, in any such case after all reasonable legal remedies for maintaining such information in confidence have been\nexhausted, including, but not limited to, giving Company as much advance notice of the possibility of such disclosure as practical so Company\nmay attempt to stop such disclosure or obtain a protective order concerning such disclosure. Recipient shall provide Company with written\nnotice no less than five (5) days prior to the disclosure or use of any information of Company pursuant to this Section 2(c), subsections\n(i) through (v).\n(d) Recipient shall (i) notify Company immediately of any unauthorized possession, use or knowledge of the Confidential Information,\n(ii) promptly furnish Company full details of such possession, use or knowledge, and (iii) cooperate with Company against third parties as may\nbe deemed necessary by Company to protect its proprietary rights in the Confidential Information.\n3. Term of Agreement. This Agreement shall be effective as of the date of first disclosure of Confidential Information and may be terminated,\nwithout cause, with respect to future disclosures upon thirty (30) days prior written notice to the other party; provided however, that all rights and\nobligations accrued prior to such termination shall survive the termination of this Agreement. Notwithstanding anything herein to the contrary, the\nnondisclosure obligations and restrictions on use with respect to any Confidential Information shall continue and bind Recipient for a period of five\n(5) years after the date of the last disclosure of Confidential Information hereunder, except that the nondisclosure obligations and restrictions on use\nwith respect to any Confidential Information that constitutes a trade secret shall continue in effect for so long as the Confidential Information\nremains a trade secret under applicable law. Any termination or expiration of this Agreement shall be without prejudice to the rights of Company\nagainst Recipient in respect of any claim or breach of any of the provisions of this Agreement.\n4. Return of Confidential Information. Recipient shall return to Company, or at Company’s request, destroy, and shall cause its Related Parties\nto return or destroy, the Confidential Information and all copies, transcriptions or other reproductions of, and any notes relating to, the Confidential\nInformation, including without limitation, any memoranda, photocopies, computer files and libraries, computer-generated data or other similar\nrepositories or archives, upon (i) the accomplishment of the purpose for which the Confidential Information was provided, or (ii) receipt of a written\nnotice from Company requesting return or destruction of the Confidential Information, and upon request, shall provide to Company written\ncertification signed by an officer of Recipient that it has complied with the foregoing.\n5. Ownership.\n(a) All Confidential Information is and shall remain the property of Company. By disclosing Confidential Information to Recipient,\nCompany does not grant any express or implied right to Recipient to or under any patents, copyrights, trademarks, or trade secret information\nexcept as\n11\nrequired to implement the Limited Purpose. Company reserves without prejudice the ability to protect its rights under any such patents,\ncopyrights, trademarks, or trade secrets. Recipient shall not remove any proprietary, copyright, trade secret or other legend from any form of\nthe Confidential Information. Recipient shall, at the reasonable written request of Company and at Company’s expense, add to the Confidential\nInformation any proprietary, copyright, trade secret or other legend or modify the same, which Company deems necessary to protect its\nintellectual property rights. Without limiting the foregoing, Company shall retain all right, title, and interest in and to all forms of Confidential\nInformation delivered or disclosed hereunder, including, without limitation, any patents, copyrights, trademarks, service marks, trade dress,\nlogos, technical information, know-how, trade secrets, and any modifications or enhancements thereto (whether developed by Company,\nRecipient, any Related Party, or on either party’s behalf) or other intellectual property rights throughout the world, whether currently existing\nor hereafter developed or acquired, and all applications, disclosures and registrations with respect thereto (collectively, “IP Rights”). If\nRecipient or any third party engaged by Recipient is deemed to have any ownership interest or rights in any IP Rights in the Confidential\nInformation, then Recipient, for no additional consideration, shall assign and/or cause such third party to assign, and Recipient does hereby\nassign, all of such ownership interest and rights exclusively and irrevocably to Company. Recipient shall cooperate with Company and shall\ncause to be executed all such instruments and documents as Company reasonably may request in connection with such assignments and shall\ndo all other lawfully permitted acts reasonably required to further the intent of this Section 5; provided, however, this Agreement shall be\neffective regardless of whether any such additional documents are executed. Recipient shall not dispute or contest, directly or indirectly,\nCompany’s right, title and interest in or to, or the validity and enforceability of, any IP Rights in the Confidential Information (including the\nattempt to register or record the same in any jurisdiction). Notwithstanding anything herein to the contrary, this Section 5 shall survive any\ntermination or expiration of this Agreement.\n(b) Recipient may from time to time provide suggestions, comments or other feedback (“Feedback”) to Company with respect to the\nConfidential Information. Both parties agree that all Feedback is and shall be given entirely voluntarily. Recipient shall not give Feedback that\nis subject to license terms that seek to require any Company product, technology, service or documentation incorporating or derived from such\nFeedback, or any Company intellectual property, to be licensed or otherwise shared with any third party. Recipient hereby acknowledges and\nagrees that all Feedback shall be deemed Confidential Information of Company, subject to the obligations of confidentiality and restricted use\nprovided under this Agreement. Furthermore, Recipient hereby acknowledges and agrees that Company shall have the exclusive right to use,\ndisclose, reproduce, license or otherwise distribute, and exploit the Feedback as Company sees fit, entirely without obligation or restriction of\nany kind on account of intellectual property rights or otherwise.\n6. Accuracy and Completeness of Confidential Information. The disclosure of any Confidential Information to Recipient shall be solely in\nCompany’s discretion. This Agreement shall not require Company to disclose any information or to require the consummation of any transaction in\nconnection with which the Confidential Information is disclosed. Notwithstanding anything to the contrary, Company shall not be deemed to have\nmade any representation or warranty to Recipient concerning the accuracy or completeness of any Confidential Information, except to the extent that\nsuch representation or warranty may be expressly set forth in a definitive written agreement concerning any subsequent business relationship.\n7. Independent Contractors. Neither this Agreement, nor any terms and conditions contained herein, will be construed as creating a partnership,\njoint venture, or agency relationship or as granting a franchise. The parties are independent contractors each acting for its own account, and neither is\nauthorized to make any commitment or representation, express or implied, on the other’s behalf.\n8. Remedies. Recipient acknowledges and agrees that Company would be irreparably harmed if any of the Confidential Information were to be\ndisclosed to third parties, or if any use were to be made of the Confidential Information other than that specified in this Agreement, and further\nagrees that Company shall have the right to seek and obtain injunctive relief upon any violation or threatened violation of the terms of this\nAgreement\n12\nwithout the necessity of posting bond or other security, in addition to all other rights and remedies available to Company at law or in equity. Any\ntrade secrets of the Company will be entitled to all of the protections and benefits under the applicable Uniform Trade Secrets Act and any other\napplicable law. If any information that Company deems to be a trade secret is found by a court of competent jurisdiction not to be a trade secret for\npurposes of this Agreement, such information nevertheless will be considered Confidential Information for purposes of this Agreement. Recipient\nhereby waives any requirement that the Company submit proof of the economic value of any trade secret.\n9. Indemnity. Recipient shall indemnify Company for and against all damages, losses, claims, costs (including reasonable attorneys’ fees),\nexpenses and liabilities, suffered or incurred as a direct or indirect result of Recipient failing (whether intentionally or not) to fully comply with its\ncovenants and obligations under this Agreement, including by virtue of any act of any Related Party.\n10. Entire Agreement. This Agreement sets forth the complete and exclusive understanding of the parties regarding the subject matter of this\nAgreement and supersedes all prior agreements, understandings, and communications, oral or written, between the parties regarding the subject\nmatter of this Agreement. This Agreement is not, however, intended to limit any rights that Company may have under trade secret, copyright, patent,\ntrademark or other laws that may apply to the subject matter of this Agreement both during and after the term of this Agreement.\n11. Amendments. No amendment or waiver of any term of this Agreement shall be effective unless such amendment or waiver is in writing\nand is signed by each of the parties hereto.\n12. Assignment. Recipient shall not assign or transfer, in whole or in part and whether by contract or operation of law, this Agreement, or any\nrights or obligations hereunder, without the prior written consent of Company. Subject to the foregoing, this Agreement shall be binding upon, and\nshall inure to the benefit of, the parties and their respective representatives, successors and assigns.\n13. Attorneys’ Fees. If any party shall commence any action or proceeding against the other in order to enforce the provisions of this\nAgreement, or to recover damages as the result of the alleged breach of any of the provisions of this Agreement, the prevailing party therein shall be\nentitled to recover all reasonable costs incurred in connection therewith against the party commencing such action or the party who has breached this\nAgreement, as the case may be, including reasonable attorneys’ fees.\n14. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, other than such\nlaws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of Florida. Any suit to\nenforce any provision of this Agreement, or arising out of or based upon this Agreement, shall be brought exclusively in the United States District\nCourt for the District of Florida or the District Court in and for the city of Sarasota and the County of Sarasota, State of Florida. Each party hereby\nagrees that such courts shall have in personam jurisdiction and venue with respect to such party, and each party hereby submits to the in personam\njurisdiction and venue of such courts.\n15. Severability. If any provision of the Agreement shall be held by a court competent jurisdiction to be illegal, invalid or unenforceable, the\nparties hereby authorize the court to modify such provision to the minimum extent necessary to effectuate the parties’ intentions and the remaining\nprovisions shall remain in full force and effect.\n[SIGNATURE PAGE FOLLOWS]\n13\nThis Agreement has been executed as of the date first set forth above.\nSun Energy Solar, Inc.\nBy: /s/ R. Craig Hall\nTitle: President\nDate: June 29, 2006\nRecipient\nSignature: /s/ Carl L. Smith\nPrinted: Carl L. Smith\nDate:\nJune 29, 2006\n14
41be0f16bf272881f9d0d687aa626ac6.pdf	effective_date jurisdiction party term	Exhibit 10.14\nEXHIBIT E\nNON-DISCLOSURE AGREEMENT\nEXHIBIT E TO LEASE\nThis NON-DISCLOSURE AGREEMENT (the “Agreement” is\nby and between LinkedIn; hereinafter “Company’), and the\nundersigned (hereinafter “Recipient”).\nWHEREAS, Recipient has requested information from Company\nin connection with consideration of a possible transaction or\nrelationship between Recipient and Company.\nWHEREAS, in the course of consideration of the possible\ntransaction or relationship, the Company may disclose to Recipient\nconfidential, important, and/or proprietary trade secret information\nconcerning the Company and its activities.\nTHEREFORE, the parties agree to enter into a confidential\nrelationship with respect to the disclosure by Company to Recipient of\ncertain information.\n1. Definitions. For purposes of this Agreement, “Confidential\nInformation” stall include all information or materiel that have or\ncould have commercial value or other utility in the business or\nprospective-business of Company or its subsidiaries or affiliates.\nConfidential Information also includes all information of which\nunauthorized disclosure could be detrimental to the Interests of\nCompany or its subsidiaries or affiliates whether or not such\ninformation is identified as Confidential Information by Company. By\nexample and without limitation, Confidential Information includes, but\nis not limited to, any and all information of the following or similar\nnature, whether or not reduced to writing: Customer lists, customer and\nsupplier identities and characteristics, agreements, marketing\nknowledge and information, sales figures, pricing information,\nmarketing plans and business plans, strategies, forecasts, financial\ninformation, budgets, software, research papers, projections,\nprocedures, routines, quality control and manufacturing procedures,\npatents, patent applications, processes, formulae, trade secrets,\ninnovations, inventions, discoveries, improvements, research or\ndevelopment and test results, specifications, data, know-how, formats,\nplans, sketches, specifications, drawings, models, and any other\ninformation or procedures that arc treated as or designated secret or\nconfidential by Company or its customers or potential customers. For\npurposes of thug Agreement, the term “Recipient” shall include\nRecipient, the company he or she represents, and alt affiliates,\nsubsidiaries, and related companies of Recipient. For purposes of this\nAgreement, the term “Representative” shall include Recipient’s\ndirectors, officers, employees, agents, and financial, legal, and other\nadvisers.\n2. Exclusions. Confidential Information does not include\ninformation that Recipient can demonstrate: (a) was in Recipient’s\npossession prior to its being furnished to Recipient\nunder the terms of this Agreement, provided the source of that\ninformation was not known by Recipient to be bound by a\nconfidentiality agreement with or other continual. legal or fiduciary\nobligation of confidentiality to Company; (b) is now, or hereafter\nbecomes, through no act or failure to act on the part of Recipient,\ngenerally known to the public; (c) is rightfully obtained by Recipient\nfrom a third party, without breach of any obligation to Company; or\n(d) is independently developed by Recipient Without use of or\nreference to the Confidential Information.\n3. Confidentiality. Recipient and its Representatives shall not\ndisclose any of the Confidential Information in any manner\nwhatsoever, except as provided in paragraphs 4 and 5 of this\nAgreement, and shall hold and maintain the Confidential Information\nin strictest confidence. Recipient hereby agrees to indemnify Company\nagainst any and all losses, damages, claims, expenses, and attorneys’\nfees incurred or suffered by Company as a result of a breach of this\nAgreement by Recipient or its Representatives.\n4. Permitted Disclosures. Recipient may disclose Company’s\nConfidential Information to Recipient’s responsible Representatives\nwith a bona fide need to know such Confidential Information, but only\nto the extent necessary to evaluate or carry out a proposed transaction\nor relationship with Company and only if such employees are advised\nof the confidential nature of such Confidential Information and the\nterms of this Agreement and are bound by a written agreement or by a\nlegally enforceable code of professional responsibility to protect the\nconfidentiality of such Confidential Information.\n5. Required Disclosures. Recipient may disclose Company’s\nConfidential Information if and to the extent that such disclosure is\nrequired by court order, provided that Recipient provides Company a\nreasonable opportunity to review the disclosure before it is made and to\ninterpose its own objection to the disclosure.\n6. Use. Recipient and its Representatives shall use the\nConfidential Information solely for the purpose of evaluating a possible\ntransaction or relationship with Company and shall not in any way use\nthe Confidential Information to the detriment of Company. Nothing in\nthis Agreement shall be construed as granting any rights to Recipient,\nby license or otherwise, to any of Company’s Confidential Information.\n7. Acquisition of Information. Recipient shall not initiate or\nmaintain contact, except for the contacts made in the ordinary courts of\nbusiness, with any director, officer, employee or agent of Company\nregarding its business,\nE-2\noperations, prospects, or finances, except with the written approval of\nCompany.\n8. Non-Solicitation of Company Employees. Recipient shall not,\nwithout the prior written approval of Company, hire or enter into a\ncontract with any employee, agent or representative of Company to\nprovide services to Recipient or, directly or indirectly, induce or\nattempt to induce or otherwise counsel, discuss, advise or encourage\nany employee, agent or representative of Company to leave or\notherwise terminate such Person’s relationship with Company for a\nperiod of twelve months following the date hereof.\n9. Confidentiality of Negotiations. Recipient and its\nRepresentatives shall not make any statement, public announcement,\nrelease to any trade publication or the press, or in form any third party\nof the discussions or negotiations m connection with the possible\nnegotiated transaction or the exchange of Confidential Information\nrelated to a possible transaction or relationship with Company.\nRecipient may make such a disclosure if it has received the written\nopinion of outside counsel that such disclosure must be made in order\nto avoid a violation of law and a copy of such opinion has been\nprovided to Company.\n10. Return of Documents. If Recipient does not proceed with the\npossible transaction with Company, Recipient shall notify Company of\nthat decision and shall, at that time or at any time upon the request of\nCompany for any reason, return to Company any and all records, notes,\nand other written, printed or other tangible materials in its possession\npertaining to the Confidential Information immediately on the written\nrequest of Company. The returning of materials shall not relieve\nRecipient from compliance with other terms and conditions of this\nAgreement.\n11. No Additional Agreements. Neither the holding of discussions\nnor the exchange of material or Information shell be construed as an\nobligation of Company to enter into any other agreement with\nRecipient or prohibit Company from providing the same or similar\nInformation to other parties and entering into agreements with other\nparties. Company reserves the right, in its sole discretion, to reject any\nand all proposals made by Recipient or its Representatives with regard\nto a transaction between Recipient and Company and to terminate\ndiscussions and negotiations with Recipient at any time. Additional\nagreements of the parties, if any, shall be in writing signed by\nCompany and Recipient.\n12. Irreparable Harm. Recipient understands and acknowledges\nthat any disclosure or misappropriation of any of the Confidential\nInformation in violation of this Agreement may cause Company\nirreparable harm, the amount of which may be difficult to ascertain,\nand therefore agrees that Company shall have the right to apply to a\ncourt of competent jurisdiction for specific performance and/or an\norder restraining and enjoining any such further disclosure or breach\nand for such other relief as Company shall deem appropriate. Such\nright of Company is to be in addition to the remedies\notherwise available to Company at law or in equity. Recipient\nexpressly waives the defense that a remedy in damages will be\nadequate and any requirement in an action for specific performance or\ninjunction for the posting of a bond by Company.\n13. Survival. This Agreement shall continue in full force and\neffect at all times.\n14. Successors and Assigns. This Agreement and each party’s\nobligations hereunder shall be binding on the representatives, assigns,\nand successors of such party and shell inure to the benefit of the\nassigns and successors of such party; provided, however, that the rights\nand obligations of Recipient hereunder are not assignable\n15. Governing Law. This Agreement shall be governed by and\nconstrued in accordance with the laws of the State of California. The\nparties hereby irrevocably consent to the jurisdiction of the state and\nfederal courts located in Los Angeles, California, in any action arising\nout of or relating to this Agreement, and waive any other venue to\nwhich either party might be entitled by domicile or otherwise.\n16. Attorney’s Fees. It any action at law or in equity is brought to\nenforce or interpret the provisions of this Agreement, the prevailing\nparty in such action shall be awarded its attorneys’ fees and costs\nincurred.\n17. Counterparts and Right. This Agreement may be signed in\ncounterparts, which together shall constitute one agreement. The\nperson signing on behalf of Recipient represents that he or she has the\nright and power to execute this Agreement.\n18. Entire Agreement. This Agreement expresses the full and\ncomplete understanding of the parties with respect to the subject matter\nhereof and supersedes all prior or contemporaneous proposals,\nagreements, representations and understandings, ‘whether written or\noral, with respect to the subject matter. This Agreement is not,\nhowever, to limit any rights that Company may have under trade secret,\ncopyright, patent or other laws that may be available to Company. This\nAgreement may not be amended or modified except in writing signed\nby each of the parties to the Agreement. This Agreement shall be\nconstrued as to its fair meaning and not strictly for or against either\nparty. The headings hereof are descriptive only and not to be construed\nin interpreting the provisions hereof.\nDate: 1/25/07\nLinkedIn (“Company”)\nBy:\nTitle:\nSlough Estates USA Inc. (“Recipient”)\nBy:\nTitle: Jonathan Bergschneider\nSenior Vice President	Exhibit 10.14\nEXHIBIT E NON-DISCLOSURE AGREEMENT This NON-DISCLOSURE AGREEMENT (the “Agreement” is\nby and between LinkedIn; hereinafter “Company’), and the\nundersigned (hereinafter “Recipient”).\nWHEREAS, Recipient has requested information from Company\nin connection with consideration of a possible transaction or\nrelationship between Recipient and Company.\nWHEREAS, in the course of consideration of the possible\ntransaction or relationship, the Company may disclose to Recipient\nconfidential, important, and/or proprietary trade secret information\nconcerning the Company and its activities.\nTHEREFORE, the parties agree to enter into a confidential\nrelationship with respect to the disclosure by Company to Recipient of\ncertain information.\n1. Definitions. For purposes of this Agreement, “Confidential\nInformation” stall include all information or materiel that have or\ncould have commercial value or other utility in the business or\nprospective-business of Company or its subsidiaries or affiliates.\nConfidential Information also includes all information of which\nunauthorized disclosure could be detrimental to the Interests of\nCompany or its subsidiaries or affiliates whether or not such\ninformation is identified as Confidential Information by Company. By\nexample and without limitation, Confidential Information includes, but\nis not limited to, any and all information of the following or similar\nnature, whether or not reduced to writing: Customer lists, customer and\nsupplier identities and characteristics, agreements, marketing\nknowledge and information, sales figures, pricing information,\nmarketing plans and business plans, strategies, forecasts, financial\ninformation, budgets, software, research papers, projections,\nprocedures, routines, quality control and manufacturing procedures,\npatents, patent applications, processes, formulae, trade secrets,\ninnovations, inventions, discoveries, improvements, research or\ndevelopment and test results, specifications, data, know-how, formats,\nplans, sketches, specifications, drawings, models, and any other\ninformation or procedures that arc treated as or designated secret or\nconfidential by Company or its customers or potential customers. For\npurposes of thug Agreement, the term “Recipient” shall include\nRecipient, the company he or she represents, and alt affiliates,\nsubsidiaries, and related companies of Recipient. For purposes of this\nAgreement, the term “Representative” shall include Recipient’s\ndirectors, officers, employees, agents, and financial, legal, and other\nadvisers.\n2. Exclusions. Confidential Information does not include\ninformation that Recipient can demonstrate: (a) was in Recipient’s\npossession prior to its being furnished to Recipient\nunder the terms of this Agreement, provided the source of that\ninformation was not known by Recipient to be bound by a\nconfidentiality agreement with or other continual. legal or fiduciary\nobligation of confidentiality to Company; (b) is now, or hereafter\nbecomes, through no act or failure to act on the part of Recipient,\ngenerally known to the public; (c) is rightfully obtained by Recipient\nfrom a third party, without breach of any obligation to Company; or\n(d) is independently developed by Recipient Without use of or\nreference to the Confidential Information.\n3. Confidentiality. Recipient and its Representatives shall not\ndisclose any of the Confidential Information in any manner\nwhatsoever, except as provided in paragraphs 4 and 5 of this\nAgreement, and shall hold and maintain the Confidential Information\nin strictest confidence. Recipient hereby agrees to indemnify Company\nagainst any and all losses, damages, claims, expenses, and attorneys’\nfees incurred or suffered by Company as a result of a breach of this\nAgreement by Recipient or its Representatives.\n4. Permitted Disclosures. Recipient may disclose Company’s\nConfidential Information to Recipient’s responsible Representatives\nwith a bona fide need to know such Confidential Information, but only\nto the extent necessary to evaluate or carry out a proposed transaction\nor relationship with Company and only if such employees are advised\nof the confidential nature of such Confidential Information and the\nterms of this Agreement and are bound by a written agreement or by a\nlegally enforceable code of professional responsibility to protect the\nconfidentiality of such Confidential Information.\n5. Required Disclosures. Recipient may disclose Company’s\nConfidential Information if and to the extent that such disclosure is\nrequired by court order, provided that Recipient provides Company a\nreasonable opportunity to review the disclosure before it is made and to\ninterpose its own objection to the disclosure.\n6. Use. Recipient and its Representatives shall use the\nConfidential Information solely for the purpose of evaluating a possible\ntransaction or relationship with Company and shall not in any way use\nthe Confidential Information to the detriment of Company. Nothing in\nthis Agreement shall be construed as granting any rights to Recipient,\nby license or otherwise, to any of Company’s Confidential Information.\n7. Acquisition of Information. Recipient shall not initiate or\nmaintain contact, except for the contacts made in the ordinary courts of\nbusiness, with any director, officer, employee or agent of Company\nregarding its business,\nEXHIBIT E TO LEASE\foperations, prospects, or finances, except with the written approval of\nCompany.\nwithout the prior written approval of Company, hire or enter into a\ncontract with any employee, agent or representative of Company to\nprovide services to Recipient or, directly or indirectly, induce or\nattempt to induce or otherwise counsel, discuss, advise or encourage\nany employee, agent or representative of Company to leave or\notherwise terminate such Person’s relationship with Company for a\nperiod of twelve months following the date hereof.\n9. Confidentiality of Negotiations. Recipient and its\nRepresentatives shall not make any statement, public announcement,\nrelease to any trade publication or the press, or in form any third party\nof the discussions or negotiations m connection with the possible\nnegotiated transaction or the exchange of Confidential Information\nrelated to a possible transaction or relationship with Company.\nRecipient may make such a disclosure if it has received the written\nopinion of outside counsel that such disclosure must be made in order\nto avoid a violation of law and a copy of such opinion has been\nprovided to Company.\n \n10. Return of Documents. If Recipient does not proceed with the\npossible transaction with Company, Recipient shall notify Company of\nthat decision and shall, at that time or at any time upon the request of\nCompany for any reason, return to Company any and all records, notes,\nand other written, printed or other tangible materials in its possession\npertaining to the Confidential Information immediately on the written\nrequest of Company. The returning of materials shall not relieve\nRecipient from compliance with other terms and conditions of this\nAgreement.\n11. No Additional Agreements. Neither the holding of discussions\nnor the exchange of material or Information shell be construed as an\nobligation of Company to enter into any other agreement with\nRecipient or prohibit Company from providing the same or similar\nInformation to other parties and entering into agreements with other\nparties. Company reserves the right, in its sole discretion, to reject any\nand all proposals made by Recipient or its Representatives with regard\nto a transaction between Recipient and Company and to terminate\ndiscussions and negotiations with Recipient at any time. Additional\nagreements of the parties, if any, shall be in writing signed by\nCompany and Recipient.\n12. Irreparable Harm. Recipient understands and acknowledges\nthat any disclosure or misappropriation of any of the Confidential\nInformation in violation of this Agreement may cause Company\nirreparable harm, the amount of which may be difficult to ascertain,\nand therefore agrees that Company shall have the right to apply to a\ncourt of competent jurisdiction for specific performance and/or an\norder restraining and enjoining any such further disclosure or breach\nand for such other relief as Company shall deem appropriate. Such\nright of Company is to be in addition to the remedies\notherwise available to Company at law or in equity. Recipient\nexpressly waives the defense that a remedy in damages will be\nadequate and any requirement in an action for specific performance or\ninjunction for the posting of a bond by Company.\n13. Survival. This Agreement shall continue in full force and\neffect at all times.\n14. Successors and Assigns. This Agreement and each party’s\nobligations hereunder shall be binding on the representatives, assigns,\nand successors of such party and shell inure to the benefit of the\nassigns and successors of such party; provided, however, that the rights\nand obligations of Recipient hereunder are not assignable\n15. Governing Law. This Agreement shall be governed by and\nconstrued in accordance with the laws of the State of California. The\nparties hereby irrevocably consent to the jurisdiction of the state and\nfederal courts located in Los Angeles, California, in any action arising\nout of or relating to this Agreement, and waive any other venue to\nwhich either party might be entitled by domicile or otherwise.\n16. Attorney’s Fees. It any action at law or in equity is brought to\nenforce or interpret the provisions of this Agreement, the prevailing\nparty in such action shall be awarded its attorneys’ fees and costs\nincurred.\n \n17. Counterparts and Right. This Agreement may be signed in\ncounterparts, which together shall constitute one agreement. The\nperson signing on behalf of Recipient represents that he or she has the\nright and power to execute this Agreement.\n18. Entire Agreement. This Agreement expresses the full and\ncomplete understanding of the parties with respect to the subject matter\nhereof and supersedes all prior or contemporaneous proposals,\nagreements, representations and understandings, ‘whether written or\noral, with respect to the subject matter. This Agreement is not,\nhowever, to limit any rights that Company may have under trade secret,\ncopyright, patent or other laws that may be available to Company. This\nAgreement may not be amended or modified except in writing signed\nby each of the parties to the Agreement. This Agreement shall be\nconstrued as to its fair meaning and not strictly for or against either\nparty. The headings hereof are descriptive only and not to be construed\nin interpreting the provisions hereof.\nDate: 1/25/07\nLinkedIn (“Company”)\nBy:\nTitle:\nSlough Estates USA Inc. (“Recipient”)\nBy:\nTitle: Jonathan Bergschneider\nSenior Vice President\nE-2	Exhibit 10.14\nEXHIBIT E\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (the "Agreement" is\nunder the terms of this Agreement, provided the source of that\nby and between LinkedIn; hereinafter "Company'), and the\ninformation was not known by Recipient to be bound by a\nundersigned (hereinafter "Recipient").\nconfidentiality agreement with or other continual. legal or fiduciary\nobligation of confidentiality to Company; (b) is now, or hereafter\nWHEREAS, Recipient has requested information from Company\nbecomes, through no act or failure to act on the part of Recipient,\nin connection with consideration of a possible transaction or\ngenerally known to the public; (c) is rightfully obtained by Recipient\nrelationship between Recipient and Company.\nfrom a third party, without breach of any obligation to Company; or\nWHEREAS, in the course of consideration of the possible\n(d) is independently developed by Recipient Without use of or\ntransaction or relationship, the Company may disclose to Recipient\nreference to the Confidential Information.\nconfidential, important, and/or proprietary trade secret information\n3. Confidentiality.. Recipient and its Representatives shall not\nconcerning the Company and its activities.\ndisclose any of the Confidential Information in any manner\nTHEREFORE, the parties agree to enter into a confidential\nwhatsoever, except as provided in paragraphs 4 and 5 of this\nrelationship with respect to the disclosure by Company to Recipient of\nAgreement, and shall hold and maintain the Confidential Information\ncertain information.\nin strictest confidence. Recipient hereby agrees to indemnify Company\nagainst any and all losses, damages, claims, expenses, and attorneys'\n1. Definitions. For purposes of this Agreement, "Confidential\nfees incurred or suffered by Company as a result of a breach of this\nInformation" stall include all information or materiel that have or\nAgreement by Recipient or its Representatives.\ncould have commercial value or other utility in the business or\nprospective-business of Company or its subsidiaries or affiliates.\n4. Permitted Disclosures. Recipient may disclose Company's\nConfidential Information also includes all information of which\nConfidential Information to Recipient's responsible Representatives\nunauthorized disclosure could be detrimental to the Interests of\nwith a bona fide need to know such Confidential Information, but only\nCompany or its subsidiaries or affiliates whether or not such\nto the extent necessary to evaluate or carry out a proposed transaction\ninformation is identified as Confidential Information by Company. By\nor relationship with Company and only if such employees are advised\nexample and without limitation, Confidential Information includes, but\nof the confidential nature of such Confidential Information and the\nis not limited to, any and all information of the following or similar\nterms of this Agreement and are bound by a written agreement or by a\nnature, whether or not reduced to writing: Customer lists, customer and\nlegally enforceable code of professional responsibility to protect the\nsupplier identities and characteristics, agreements, marketing\nconfidentiality of such Confidential Information.\nknowledge and information, sales figures, pricing information,\n5. Required Disclosures. Recipient may disclose Company's\nmarketing plans and business plans, strategies, forecasts, financial\nConfidential Information if and to the extent that such disclosure is\ninformation, budgets, software, research papers, projections,\nrequired by court order, provided that Recipient provides Company a\nprocedures, routines, quality control and manufacturing procedures,\nreasonable opportunity to review the disclosure before it is made and to\npatents, patent applications, processes, formulae, trade secrets,\ninterpose its own objection to the disclosure.\ninnovations, inventions, discoveries, improvements, research or\ndevelopment and test results, specifications, data, know-how, formats,\n6. Use. Recipient and its Representatives shall use the\nplans, sketches, specifications, drawings, models, and any other\nConfidential Information solely for the purpose of evaluating a possible\ninformation or procedures that arc treated as or designated secret or\ntransaction or relationship with Company and shall not in any way use\nconfidential by Company or its customers or potential customers. For\nthe Confidential Information to the detriment of Company. Nothing in\npurposes of thug Agreement, the term "Recipient" shall include\nthis Agreement shall be construed as granting any rights to Recipient,\nRecipient, the company he or she represents, and alt affiliates,\nby license or otherwise, to any of Company's Confidential Information.\nsubsidiaries, and related companies of Recipient For purposes of this\nAgreement, the term "Representative" shall include Recipient's\n7. Acquisition of Information. Recipient shall not initiate or\ndirectors, officers, employees, agents, and financial, legal, and other\nmaintain contact, except for the contacts made in the ordinary courts of\nadvisers.\nbusiness, with any director, officer, employee or agent of Company\nregarding its business,\n2. Exclusions. Confidential Information does not include\ninformation that Recipient can demonstrate: (a) was in Recipient's\npossession prior to its being furnished to Recipient\nEXHIBIT] TO LEASE\noperations, prospects, or finances, except with the written approval of\notherwise available to Company at law or in equity. Recipient\nCompany.\nexpressly waives the defense that a remedy in damages will be\nadequate and any requirement in an action for specific performance or\n8. Non-Solicitation of Company. Employees. Recipient shall not,\ninjunction for the posting of a bond by Company.\nwithout the prior written approval of Company, hire or enter into a\ncontract with any employee, agent or representative of Company to\n13. Survival. This Agreement shall continue in full force and\nprovide services to Recipient or, directly or indirectly, induce or\neffect at all times.\nattempt to induce or otherwise counsel, discuss, advise or encourage\nany employee, agent or representative of Company to leave or\n14. Successors and Assigns. This Agreement and each party's\notherwise terminate such Person's relationship with Company for a\nobligations hereunder shall be binding on the representatives, assigns,\nperiod of twelve months following the date hereof.\nand successors of such party and shell inure to the benefit of the\nassigns and successors of such party; provided, however, that the rights\n9. Confidentiality. of Negotiations. Recipient and its\nand obligations of Recipient hereunder are not assignable\nRepresentatives shall not make any statement, public announcement,\nrelease to any trade publication or the press, or in form any third party\n15. Governing Law. This Agreement shall be governed by and\nof the discussions or negotiations m connection with the possible\nconstrued in accordance with the laws of the State of California. The\nnegotiated transaction or the exchange of Confidential Information\nparties hereby irrevocably consent to the jurisdiction of the state and\nrelated to a possible transaction or relationship with Company.\nfederal courts located in Los Angeles, California, in any action arising\nRecipient may make such a disclosure if it has received the written\nout of or relating to this Agreement, and waive any other venue to\nopinion of outside counsel that such disclosure must be made in order\nwhich either party might be entitled by domicile or otherwise.\nto avoid a violation of law and a copy of such opinion has been\nprovided to Company.\n16. Attorney's Fees. It any action at law or in equity is brought to\nenforce or interpret the provisions of this Agreement, the prevailing\n10. Return of Documents. If Recipient does not proceed with the\nparty in such action shall be awarded its attorneys' fees and costs\npossible transaction with Company, Recipient shall notify Company of\nincurred.\nthat decision and shall, at that time or at any time upon the request of\nCompany for any reason, return to Company any and all records, notes,\n17 Counterparts and Right. This Agreement may be signed in\nand other written, printed or other tangible materials in its possession\ncounterparts, which together shall constitute one agreement. The\npertaining to the Confidential Information immediately on the written\nperson signing on behalf of Recipient represents that he or she has the\nrequest of Company. The returning of materials shall not relieve\nright and power to execute this Agreement.\nRecipient from compliance with other terms and conditions of this\n18. Entire Agreement. This Agreement expresses the full and\nAgreement.\ncomplete understanding of the parties with respect to the subject matter\n11. No Additional Agreements. Neither the holding of discussions\nhereof and supersedes all prior or contemporaneous proposals,\nnor the exchange of material or Information shell be construed as an\nagreements, representations and understandings, 'whether written or\nobligation of Company to enter into any other agreement with\noral, with respect to the subject matter. This Agreement is not,\nRecipient or prohibit Company from providing the same or similar\nhowever, to limit any rights that Company may have under trade secret,\nInformation to other parties and entering into agreements with other\ncopyright, patent or other laws that may be available to Company. This\nparties. Company reserves the right, in its sole discretion, to reject any\nAgreement may not be amended or modified except in writing signed\nand all proposals made by Recipient or its Representatives with regard\nby each of the parties to the Agreement. This Agreement shall be\nto a transaction between Recipient and Company and to terminate\nconstrued as to its fair meaning and not strictly for or against either\ndiscussions and negotiations with Recipient at any time. Additional\nparty. The headings hereof are descriptive only and not to be construed\nagreements of the parties, if any, shall be in writing signed by\nin interpreting the provisions hereof.\nCompany and Recipient.\nDate: 1/25/07\n12. Irreparable Harm. Recipient understands and acknowledges\nthat any disclosure or misappropriation of any of the Confidential\nLinkedIn ("Company")\nInformation in violation of this Agreement may cause Company\nBy:\nirreparable harm, the amount of which may be difficult to ascertain,\nand therefore agrees that Company shall have the right to apply to a\nTitle:\ncourt of competent jurisdiction for specific performance and/or an\norder restraining and enjoining any such further disclosure or breach\nSlough Estates USA Inc. ("Recipient")\nand for such other relief as Company shall deem appropriate. Such\nright of Company is to be in addition to the remedies\nBy:\nTitle: Jonathan Bergschneider\nSenior Vice President\nE-2	Exhibit 10.14\nEXHIBIT E\nNON-DISCLOSURE AGREEMENT\nEXHIBIT E TO LEASE\nThis NON-DISCLOSURE AGREEMENT (the “Agreement” is\nby and between LinkedIn; hereinafter “Company’), and the\nundersigned (hereinafter “Recipient”).\nWHEREAS, Recipient has requested information from Company\nin connection with consideration of a possible transaction or\nrelationship between Recipient and Company.\nWHEREAS, in the course of consideration of the possible\ntransaction or relationship, the Company may disclose to Recipient\nconfidential, important, and/or proprietary trade secret information\nconcerning the Company and its activities.\nTHEREFORE, the parties agree to enter into a confidential\nrelationship with respect to the disclosure by Company to Recipient of\ncertain information.\n1. Definitions. For purposes of this Agreement, “Confidential\nInformation” stall include all information or materiel that have or\ncould have commercial value or other utility in the business or\nprospective-business of Company or its subsidiaries or affiliates.\nConfidential Information also includes all information of which\nunauthorized disclosure could be detrimental to the Interests of\nCompany or its subsidiaries or affiliates whether or not such\ninformation is identified as Confidential Information by Company. By\nexample and without limitation, Confidential Information includes, but\nis not limited to, any and all information of the following or similar\nnature, whether or not reduced to writing: Customer lists, customer and\nsupplier identities and characteristics, agreements, marketing\nknowledge and information, sales figures, pricing information,\nmarketing plans and business plans, strategies, forecasts, financial\ninformation, budgets, software, research papers, projections,\nprocedures, routines, quality control and manufacturing procedures,\npatents, patent applications, processes, formulae, trade secrets,\ninnovations, inventions, discoveries, improvements, research or\ndevelopment and test results, specifications, data, know-how, formats,\nplans, sketches, specifications, drawings, models, and any other\ninformation or procedures that arc treated as or designated secret or\nconfidential by Company or its customers or potential customers. For\npurposes of thug Agreement, the term “Recipient” shall include\nRecipient, the company he or she represents, and alt affiliates,\nsubsidiaries, and related companies of Recipient. For purposes of this\nAgreement, the term “Representative” shall include Recipient’s\ndirectors, officers, employees, agents, and financial, legal, and other\nadvisers.\n2. Exclusions. Confidential Information does not include\ninformation that Recipient can demonstrate: (a) was in Recipient’s\npossession prior to its being furnished to Recipient\nunder the terms of this Agreement, provided the source of that\ninformation was not known by Recipient to be bound by a\nconfidentiality agreement with or other continual. legal or fiduciary\nobligation of confidentiality to Company; (b) is now, or hereafter\nbecomes, through no act or failure to act on the part of Recipient,\ngenerally known to the public; (c) is rightfully obtained by Recipient\nfrom a third party, without breach of any obligation to Company; or\n(d) is independently developed by Recipient Without use of or\nreference to the Confidential Information.\n3. Confidentiality. Recipient and its Representatives shall not\ndisclose any of the Confidential Information in any manner\nwhatsoever, except as provided in paragraphs 4 and 5 of this\nAgreement, and shall hold and maintain the Confidential Information\nin strictest confidence. Recipient hereby agrees to indemnify Company\nagainst any and all losses, damages, claims, expenses, and attorneys’\nfees incurred or suffered by Company as a result of a breach of this\nAgreement by Recipient or its Representatives.\n4. Permitted Disclosures. Recipient may disclose Company’s\nConfidential Information to Recipient’s responsible Representatives\nwith a bona fide need to know such Confidential Information, but only\nto the extent necessary to evaluate or carry out a proposed transaction\nor relationship with Company and only if such employees are advised\nof the confidential nature of such Confidential Information and the\nterms of this Agreement and are bound by a written agreement or by a\nlegally enforceable code of professional responsibility to protect the\nconfidentiality of such Confidential Information.\n5. Required Disclosures. Recipient may disclose Company’s\nConfidential Information if and to the extent that such disclosure is\nrequired by court order, provided that Recipient provides Company a\nreasonable opportunity to review the disclosure before it is made and to\ninterpose its own objection to the disclosure.\n6. Use. Recipient and its Representatives shall use the\nConfidential Information solely for the purpose of evaluating a possible\ntransaction or relationship with Company and shall not in any way use\nthe Confidential Information to the detriment of Company. Nothing in\nthis Agreement shall be construed as granting any rights to Recipient,\nby license or otherwise, to any of Company’s Confidential Information.\n7. Acquisition of Information. Recipient shall not initiate or\nmaintain contact, except for the contacts made in the ordinary courts of\nbusiness, with any director, officer, employee or agent of Company\nregarding its business,\nE-2\noperations, prospects, or finances, except with the written approval of\nCompany.\n8. Non-Solicitation of Company Employees. Recipient shall not,\nwithout the prior written approval of Company, hire or enter into a\ncontract with any employee, agent or representative of Company to\nprovide services to Recipient or, directly or indirectly, induce or\nattempt to induce or otherwise counsel, discuss, advise or encourage\nany employee, agent or representative of Company to leave or\notherwise terminate such Person’s relationship with Company for a\nperiod of twelve months following the date hereof.\n9. Confidentiality of Negotiations. Recipient and its\nRepresentatives shall not make any statement, public announcement,\nrelease to any trade publication or the press, or in form any third party\nof the discussions or negotiations m connection with the possible\nnegotiated transaction or the exchange of Confidential Information\nrelated to a possible transaction or relationship with Company.\nRecipient may make such a disclosure if it has received the written\nopinion of outside counsel that such disclosure must be made in order\nto avoid a violation of law and a copy of such opinion has been\nprovided to Company.\n10. Return of Documents. If Recipient does not proceed with the\npossible transaction with Company, Recipient shall notify Company of\nthat decision and shall, at that time or at any time upon the request of\nCompany for any reason, return to Company any and all records, notes,\nand other written, printed or other tangible materials in its possession\npertaining to the Confidential Information immediately on the written\nrequest of Company. The returning of materials shall not relieve\nRecipient from compliance with other terms and conditions of this\nAgreement.\n11. No Additional Agreements. Neither the holding of discussions\nnor the exchange of material or Information shell be construed as an\nobligation of Company to enter into any other agreement with\nRecipient or prohibit Company from providing the same or similar\nInformation to other parties and entering into agreements with other\nparties. Company reserves the right, in its sole discretion, to reject any\nand all proposals made by Recipient or its Representatives with regard\nto a transaction between Recipient and Company and to terminate\ndiscussions and negotiations with Recipient at any time. Additional\nagreements of the parties, if any, shall be in writing signed by\nCompany and Recipient.\n12. Irreparable Harm. Recipient understands and acknowledges\nthat any disclosure or misappropriation of any of the Confidential\nInformation in violation of this Agreement may cause Company\nirreparable harm, the amount of which may be difficult to ascertain,\nand therefore agrees that Company shall have the right to apply to a\ncourt of competent jurisdiction for specific performance and/or an\norder restraining and enjoining any such further disclosure or breach\nand for such other relief as Company shall deem appropriate. Such\nright of Company is to be in addition to the remedies\notherwise available to Company at law or in equity. Recipient\nexpressly waives the defense that a remedy in damages will be\nadequate and any requirement in an action for specific performance or\ninjunction for the posting of a bond by Company.\n13. Survival. This Agreement shall continue in full force and\neffect at all times.\n14. Successors and Assigns. This Agreement and each party’s\nobligations hereunder shall be binding on the representatives, assigns,\nand successors of such party and shell inure to the benefit of the\nassigns and successors of such party; provided, however, that the rights\nand obligations of Recipient hereunder are not assignable\n15. Governing Law. This Agreement shall be governed by and\nconstrued in accordance with the laws of the State of California. The\nparties hereby irrevocably consent to the jurisdiction of the state and\nfederal courts located in Los Angeles, California, in any action arising\nout of or relating to this Agreement, and waive any other venue to\nwhich either party might be entitled by domicile or otherwise.\n16. Attorney’s Fees. It any action at law or in equity is brought to\nenforce or interpret the provisions of this Agreement, the prevailing\nparty in such action shall be awarded its attorneys’ fees and costs\nincurred.\n17. Counterparts and Right. This Agreement may be signed in\ncounterparts, which together shall constitute one agreement. The\nperson signing on behalf of Recipient represents that he or she has the\nright and power to execute this Agreement.\n18. Entire Agreement. This Agreement expresses the full and\ncomplete understanding of the parties with respect to the subject matter\nhereof and supersedes all prior or contemporaneous proposals,\nagreements, representations and understandings, ‘whether written or\noral, with respect to the subject matter. This Agreement is not,\nhowever, to limit any rights that Company may have under trade secret,\ncopyright, patent or other laws that may be available to Company. This\nAgreement may not be amended or modified except in writing signed\nby each of the parties to the Agreement. This Agreement shall be\nconstrued as to its fair meaning and not strictly for or against either\nparty. The headings hereof are descriptive only and not to be construed\nin interpreting the provisions hereof.\nDate: 1/25/07\nLinkedIn (“Company”)\nBy:\nTitle:\nSlough Estates USA Inc. (“Recipient”)\nBy:\nTitle: Jonathan Bergschneider\nSenior Vice President
43d3dc5cb6a256038d7cc7542f0d9017.pdf	effective_date jurisdiction party term	EX-10.10 11 dex1010.htm FORM OF CONFIDENTIALITY AGREEMENT\nExhibit 10.10\nFORM OF CONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (“Agreement”) is made as of the\nday of\n,\nby and among Circuit City Stores, Inc.,\n(“Circuit City”) a Virginia corporation and CarMax, Inc., a Virginia corporation (“CarMax”), either Circuit City or CarMax as a “Party” or\ncollectively, as the “Parties”.\nINTRODUCTION\nA. Circuit City and CarMax have executed a Separation Agreement dated as of (the “Separation Agreement”), pursuant to which CarMax and\nthe CarMax Subsidiaries separated from Circuit City and the Circuit City Subsidiaries (the “Spin-off”). For purposes of this Agreement, Circuit City\nand the Circuit City Subsidiaries collectively, or CarMax and the CarMax Subsidiaries collectively, shall each be referred to as a “Party”.\nB. Prior to the Spin-off, CarMax existed as part of Circuit City, resulting in the sharing and consolidation of Confidential Information (as\ndefined below).\nC. As a result of the historical co-mingling of Circuit City and CarMax information prior to the Spin-off, there are paper records, localized\nelectronic records (stored on individual PC’s or discs) or information stored in other media containing Confidential Information of the other Party.\nD. Further, pursuant to the Separation Agreement, Circuit City will provide certain transition services to CarMax following the Spin-off\npursuant to Transition Services Agreement between Circuit City and CarMax. As a result, certain Circuit City employees will have access to\nCarMax’s Confidential Information.\nE. The Parties agree that full segregation of all co-mingled Confidential Information that pre-dates the Spin-off is not practical and that the\ndisclosure of Confidential Information during the provision of services pursuant to the Transition Services Agreement or other Ancillary Agreements\nmay be unavoidable.\nNOW, THEREFORE, in consideration of the joint nature of the disclosure and the business relationship between the parties, it is hereby agreed\nas follows:\n1. Definition. For purposes of this Agreement, the term “Confidential Information” shall mean proprietary and confidential business\ninformation obtained by either Party at any time including, without limitation, the following:\n(a) Any trade secret, know-how, invention, software program, application, documentation, schematic, procedure, contract, information,\nknowledge, data, process, technique, design, drawing, program, formula or test data, work in progress, engineering, manufacturing, marketing,\nfinancial, sales, supplier, customer, employee, investor, or business information, whether in oral, written, graphic or electronic form;\n(b) Any non-public business information, including, without limitation, personnel data; correspondence with governmental agencies;\nhistorical customer information and data; historical cost information such as budgets and operating expenses and capital costs; and projected\ncapital additions and operating cost information;\n(c) Any document, diagram, photograph, drawing, computer program or other communication that is either conspicuously marked\n“confidential”, or is known or reasonably should have been known by the Party in possession to be confidential; and\n(d) Any advice, information, exhibits, documentation or any other information that a Party reasonably expects would be protected by\nattorney-client privilege or work product doctrine or other applicable privileges.\n2. Prohibition of Use. Circuit City acknowledges that it is authorized to access and use the Confidential Information of CarMax for the sole\npurpose of performing the services it is contractually bound to provide to such parties, specifically with respect to carrying out its obligations under\nthe Transition Services Agreement and other agreements related to the Separation Agreement. Otherwise, each of the Parties agrees that, with respect\nto the Confidential Information of the other Party, it will not (i) take any affirmative action to access such Confidential Information; (ii) directly or\nindirectly utilize any such Confidential Information in its business; (ii) manufacture and/or sell any product or provide any service that is based in\nwhole or in part on such Confidential Information; (iii) copy or modify such Confidential Information, or any copy or portion thereof; or (iv)\ndisclose such Confidential Information to any third party.\n3. Prior Disclosures. Prior to the Separation Agreement, Circuit City and CarMax may have exchanged information within their\nconsolidated corporate structure without restriction. Such information supplied to one Party by the other prior to the execution of this Agreement\nshall nonetheless be considered Confidential Information (except as specifically excluded pursuant to Section 5 below) for the purposes of this\nAgreement and shall be subject to the terms and conditions hereof.\n4. Specific Restriction Regarding Waiver of Attorney-Client Privilege or Work Product Doctrine. Prior to any action by the either Party\nthat could reasonably be expected to lead to or that would constitute waiver of attorney-client privilege or work product doctrine, the Party\ndisclosing the information must give prior notice to the other Party as soon as possible.\n2\n5. Nonprotected Information. The Parties agree that their mutual covenants with respect to each other’s Confidential Information shall not\napply to any information, data or other materials imparted to the extent that any of the following conditions apply:\n(a) The information is, or any time hereafter becomes, available to the public or contained in a filing to a government agency without\nbreach of this Agreement by the receiving Party;\n(b) The information is obtained by the recipient from any other person, firm or company having no obligation to or relationship with the\ndisclosing Party;\n(c) The information is developed by or for recipient independently of information received from one or more of the Parties hereto; or\n(d) The information is more than ten (10) years old.\n6. Court-Ordered Disclosure. No Party hereto shall be liable for disclosure of Confidential Information of the other Party if made in\nresponse to a valid order of a court or authorized agency of government; provided, however that five (5) days’ notice first be given to the other Party\nso a protective order, if appropriate, and may be sought by such Party with the cooperation of the other Party.\n7. Disclosure of Confidentiality Agreement Terms. Notwithstanding any other provisions hereof, the terms of this Agreement shall not be\ndeemed to be the Confidential Information of any Party hereto, and each Party shall have the right to disclose the terms hereof to third parties in its\nown discretion.\n8. No Conveyance or License. Nothing in this Agreement shall be construed to convey to the recipient of Confidential Information any\nright, title, interest or copyright in any Confidential Information, or any license to use, sell, exploit, copy or further develop any such Confidential\nInformation. This Agreement does not in any way bind the Parties to enter into a business relationship of any type with each other.\n9. Injunctive Relief. The Parties agree that a breach by either Party of this Agreement with respect to the Confidential Information of the\nother Party to this Agreement will cause irreparable damages to the other Party (the “Non-Breaching Party”) for which recovery of money damages\nwould be inadequate, and that the Non-Breaching Party shall, therefore, be entitled to obtain timely injunctive relief to protect its rights under this\nAgreement in addition to any and all remedies available at law without the need to post a bond or other undertaking.\n3\n10. Governing Law and Choice of Forum. This Agreement has been made under and shall be governed by, interpreted and enforced in\naccordance with the laws of the Commonwealth of Virginia without regard to the conflict of laws rules thereof. All disputes hereunder shall be\nresolved in the applicable state or Federal courts of Virginia. The parties consent to the jurisdiction of such courts, agree to accept service of process\nby mail, and waive any jurisdictional or venue defenses otherwise available.\n11. Agreement Binding on Successors. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, and their\nheirs, administrators, successors and assigns.\n12. Waiver. The failure of either Party at any time or times to demand strict performance by the other Party of the terms, covenants, or\nconditions set forth in this Agreement shall not be construed as a continuing waiver or relinquishment thereof, and either Party may at any time\ndemand strict and complete performance of such terms, covenants, and conditions.\n13. Assignability. This Agreement is personal to both Parties and may not be assigned by any act of either Party or by operation of law\nunless in connection with a transfer of substantially all the assets of such Party as a transfer to its affiliate.\n14. Severability. If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect\nthe validity or operation of any other provision, and such invalid provision shall be deemed to be severed from the Agreement.\n15. Significance of Headings. Paragraph headings contained herein are solely for the purpose of aiding in speedy location of subject matter\nand are not in any sense to be used in the construction of this Agreement. Accordingly, in case of any questions with respect to the construction of\nthis Agreement, it is to be construed as though paragraph headings had been omitted.\n16. Integration. This Agreement constitutes the final, exclusive, and complete expression of the agreement of the Parties hereto, and it\nembodies all of the terms and conditions of the Agreement between the Parties with respect to the subject matter hereof. This Agreement is expressly\nintended to replace and supersede all prior and contemporaneous agreements, proposals, negotiations, representations, and warranties, if any,\nbetween the Parties whether oral or written with respect to the subject matter hereof. There are no agreements, representations, or warranties that\nhave not been included in this Agreement with respect to the subject matter hereof. It represents the result of arms length negotiation between the\nParties and shall be interpreted and construed without regard to any presumption or other rule requiring construction against either Party.\n4\n17. Amendments. This Agreement shall not be modified or amended except in writing signed by the parties hereto and specifically referring\nto this Agreement.\n18. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of\nwhich together will constitute one and the same instrument.\n*\n*\n*\n*\n*\n[REMAINDER OF PAGE INTENTIONALLY BLANK]\n5\nIN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the latest date set forth below.\nCircuit City Stores, Inc.\nCarMax Inc.\nBy:\nBy:\nTitle:\nTitle:\nDate:\nDate:\n6	EX-10.10 11 dex1010.htm FORM OF CONFIDENTIALITY AGREEMENT\nExhibit 10.10\nFORM OF CONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (“Agreement”) is made as of the day of s by and among Circuit City Stores, Inc.,\n(“Circuit City”) a Virginia corporation and CarMax, Inc., a Virginia corporation (“CarMax”), either Circuit City or CarMax as a “Party” or\ncollectively, as the “Parties”.\nINTRODUCTION\nA. Circuit City and CarMax have executed a Separation Agreement dated as of (the “Separation Agreement”), pursuant to which CarMax and\nthe CarMax Subsidiaries separated from Circuit City and the Circuit City Subsidiaries (the “Spin-off”). For purposes of this Agreement, Circuit City\nand the Circuit City Subsidiaries collectively, or CarMax and the CarMax Subsidiaries collectively, shall each be referred to as a “Party”.\nB. Prior to the Spin-off, CarMax existed as part of Circuit City, resulting in the sharing and consolidation of Confidential Information (as\ndefined below).\nC. As aresult of the historical co-mingling of Circuit City and CarMax information prior to the Spin-off, there are paper records, localized\nelectronic records (stored on individual PC’s or discs) or information stored in other media containing Confidential Information of the other Party.\nD. Further, pursuant to the Separation Agreement, Circuit City will provide certain transition services to CarMax following the Spin-off\npursuant to Transition Services Agreement between Circuit City and CarMax. As a result, certain Circuit City employees will have access to\nCarMax’s Confidential Information.\nE. The Parties agree that full segregation of all co-mingled Confidential Information that pre-dates the Spin-off is not practical and that the\ndisclosure of Confidential Information during the provision of services pursuant to the Transition Services Agreement or other Ancillary Agreements\nmay be unavoidable.\nNOW, THEREFORE, in consideration of the joint nature of the disclosure and the business relationship between the parties, it is hereby agreed\nas follows:\n1. Definition. For purposes of this Agreement, the term “Confidential Information” shall mean proprietary and confidential business\ninformation obtained by either Party at any time including, without limitation, the following:\n(a) Any trade secret, know-how, invention, software program, application, documentation, schematic, procedure, contract, information,\nknowledge, data, process, technique, design, drawing, program, formula or test data, work in progress, engineering, manufacturing, marketing,\nfinancial, sales, supplier, customer, employee, investor, or business information, whether in oral, written, graphic or electronic form;\n(b) Any non-public business information, including, without limitation, personnel data; correspondence with governmental agencies;\nhistorical customer information and data; historical cost information such as budgets and operating expenses and capital costs; and projected\ncapital additions and operating cost information;\n(c) Any document, diagram, photograph, drawing, computer program or other communication that is either conspicuously marked\n“confidential”, or is known or reasonably should have been known by the Party in possession to be confidential; and\n(d) Any advice, information, exhibits, documentation or any other information that a Party reasonably expects would be protected by\nattorney-client privilege or work product doctrine or other applicable privileges.\n2. Prohibition of Use. Circuit City acknowledges that it is authorized to access and use the Confidential Information of CarMax for the sole\npurpose of performing the services it is contractually bound to provide to such parties, specifically with respect to carrying out its obligations under\nthe Transition Services Agreement and other agreements related to the Separation Agreement. Otherwise, each of the Parties agrees that, with respect\nto the Confidential Information of the other Party, it will not (i) take any affirmative action to access such Confidential Information; (ii) directly or\nindirectly utilize any such Confidential Information in its business; (ii) manufacture and/or sell any product or provide any service that is based in\nwhole or in part on such Confidential Information; (iii) copy or modify such Confidential Information, or any copy or portion thereof; or (iv)\ndisclose such Confidential Information to any third party.\n3. Prior Disclosures. Prior to the Separation Agreement, Circuit City and CarMax may have exchanged information within their\nconsolidated corporate structure without restriction. Such information supplied to one Party by the other prior to the execution of this Agreement\nshall nonetheless be considered Confidential Information (except as specifically excluded pursuant to Section 5 below) for the purposes of this\nAgreement and shall be subject to the terms and conditions hereof.\n4. Specific Restriction Regarding Waiver of Attorney-Client Privilege or Work Product Doctrine. Prior to any action by the either Party\nthat could reasonably be expected to lead to or that would constitute waiver of attorney-client privilege or work product doctrine, the Party\ndisclosing the information must give prior notice to the other Party as soon as possible.\n2\n5. Nonprotected Information. The Parties agree that their mutual covenants with respect to each other’s Confidential Information shall not\napply to any information, data or other materials imparted to the extent that any of the following conditions apply:\n(a) The information is, or any time hereafter becomes, available to the public or contained in a filing to a government agency without\nbreach of this Agreement by the receiving Party;\n(b) The information is obtained by the recipient from any other person, firm or company having no obligation to or relationship with the\ndisclosing Party;\n(c) The information is developed by or for recipient independently of information received from one or more of the Parties hereto; or\n(d) The information is more than ten (10) years old.\n6. Court-Ordered Disclosure. No Party hereto shall be liable for disclosure of Confidential Information of the other Party if made in\nresponse to a valid order of a court or authorized agency of government; provided, however that five (5) days’ notice first be given to the other Party\nso a protective order, if appropriate, and may be sought by such Party with the cooperation of the other Party.\n7. Disclosure of Confidentiality Agreement Terms. Notwithstanding any other provisions hereof, the terms of this Agreement shall not be\ndeemed to be the Confidential Information of any Party hereto, and each Party shall have the right to disclose the terms hereof to third parties in its\nown discretion.\n8. No Conveyance or License. Nothing in this Agreement shall be construed to convey to the recipient of Confidential Information any\nright, title, interest or copyright in any Confidential Information, or any license to use, sell, exploit, copy or further develop any such Confidential\nInformation. This Agreement does not in any way bind the Parties to enter into a business relationship of any type with each other.\n9. Injunctive Relief. The Parties agree that a breach by either Party of this Agreement with respect to the Confidential Information of the\nother Party to this Agreement will cause irreparable damages to the other Party (the “Non-Breaching Party”) for which recovery of money damages\nwould be inadequate, and that the Non-Breaching Party shall, therefore, be entitled to obtain timely injunctive relief to protect its rights under this\nAgreement in addition to any and all remedies available at law without the need to post a bond or other undertaking.\n3\n10. Governing Law and Choice of Forum. This Agreement has been made under and shall be governed by, interpreted and enforced in\naccordance with the laws of the Commonwealth of Virginia without regard to the conflict of laws rules thereof. All disputes hereunder shall be\nresolved in the applicable state or Federal courts of Virginia. The parties consent to the jurisdiction of such courts, agree to accept service of process\nby mail, and waive any jurisdictional or venue defenses otherwise available.\n11. Agreement Binding on Successors. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, and their\nheirs, administrators, successors and assigns.\n12. Waiver. The failure of either Party at any time or times to demand strict performance by the other Party of the terms, covenants, or\nconditions set forth in this Agreement shall not be construed as a continuing waiver or relinquishment thereof, and either Party may at any time\ndemand strict and complete performance of such terms, covenants, and conditions.\n13. Assignability. This Agreement is personal to both Parties and may not be assigned by any act of either Party or by operation of law\nunless in connection with a transfer of substantially all the assets of such Party as a transfer to its affiliate.\n14. Severability. If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect\nthe validity or operation of any other provision, and such invalid provision shall be deemed to be severed from the Agreement.\n15. Significance of Headings. Paragraph headings contained herein are solely for the purpose of aiding in speedy location of subject matter\nand are not in any sense to be used in the construction of this Agreement. Accordingly, in case of any questions with respect to the construction of\nthis Agreement, it is to be construed as though paragraph headings had been omitted.\n16. Integration. This Agreement constitutes the final, exclusive, and complete expression of the agreement of the Parties hereto, and it\nembodies all of the terms and conditions of the Agreement between the Parties with respect to the subject matter hereof. This Agreement is expressly\nintended to replace and supersede all prior and contemporaneous agreements, proposals, negotiations, representations, and warranties, if any,\nbetween the Parties whether oral or written with respect to the subject matter hereof. There are no agreements, representations, or warranties that\nhave not been included in this Agreement with respect to the subject matter hereof. It represents the result of arms length negotiation between the\nParties and shall be interpreted and construed without regard to any presumption or other rule requiring construction against either Party.\n4\n17. Amendments. This Agreement shall not be modified or amended except in writing signed by the parties hereto and specifically referring\nto this Agreement.\n18. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of\nwhich together will constitute one and the same instrument.\n* * * * *\n[REMAINDER OF PAGE INTENTIONALLY BLANK]\n5\nIN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the latest date set forth below.\nCircuit City Stores, Inc. CarMax Inc.\nBy: By:\nTitle: Title:\nDate: Date:	EX-10.10 11 dex x1010.htm FORM OF CONFIDENTIALITY AGREEMENT\nExhibit 10.10\nFORM OF CONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement ("Agreement") is made as of the\nday of\nby and among Circuit City Stores, Inc.,\n("Circuit City") a Virginia corporation and CarMax, Inc., a Virginia corporation ("CarMax"), either Circuit City or CarMax as a "Party" or\ncollectively, as the "Parties".\nINTRODUCTION\nA. Circuit City and CarMax have executed a Separation Agreement dated as of (the "Separation Agreement"), pursuant to which CarMax and\nthe CarMax Subsidiaries separated from Circuit City and the Circuit City Subsidiaries (the "Spin-off"). For purposes of this Agreement, Circuit City\nand\nthe Circuit City Subsidiaries collectively, or CarMax and the CarMax Subsidiaries collectively, shall each be referred to as a "Party".\nB. Prior to the Spin-off, CarMax existed as part of Circuit City, resulting in the sharing and consolidation of Confidential Information (as\ndefined below).\nC. As a result of the historical co-mingling of Circuit City and CarMax information prior to the Spin-off, there are paper records, localized\nelectronic records (stored on individual PC's or discs) or information stored in other media containing Confidential Information of the other Party.\nD. Further, pursuant to the Separation Agreement, Circuit City will provide certain transition services to CarMax following the Spin-off\npursuant to Transition Services Agreement between Circuit City and CarMax. As a result, certain Circuit City employees will have access to\nCarMax's Confidential Information.\nE. The Parties agree that full segregation of all co-mingled Confidentia Information that pre-dates the Spin-off is not practical and that the\ndisclosure of Confidential Information during the provision of services pursuant to the Transition Services Agreement or other Ancillary Agreements\nmay be unavoidable.\nNOW, THEREFORE, in consideration of the joint nature of the disclosure and the business relationship between the parties, it is hereby agreed\nas follows:\n1. Definition. For purposes of this Agreement, the term "Confidential Information" shall mean proprietary and confidential business\ninformation obtained by either Party at any time including, without limitation, the following:\n(a) Any trade secret, know-how, invention, software program, application, documentation, schematic, procedure, contract, information,\nknowledge, data, process, technique, design, drawing, program, formula or test data, work in progress, engineering, manufacturing, marketing,\nfinancial, sales, supplier, customer, employee, investor, or business information, whether in oral, written, graphic or electronic form;\n(b) Any non-public business information, including, without limitation, personnel data; correspondence with governmental agencies;\nhistorical customer information and data; historical cost information such as budgets and operating expenses and capital costs; and projected\ncapital additions and operating cost information;\n(c) Any document, diagram, photograph, drawing, computer program or other communication that is either conspicuously marked\n"confidential", or is known or reasonably should have been known by the Party in possession to be confidential; and\n(d) Any advice, information, exhibits, documentation or any other information that a Party reasonably expects would be protected by\nattorney-client privilege or work product doctrine or other applicable privileges.\n2. Prohibition of Use. Circuit City acknowledges that it is authorized to access and use the Confidential Information of CarMax for the sole\npurpose of performing the services it is contractually bound to provide to such parties, specifically with respect to carrying out its obligations under\nthe\nTransition Services Agreement and other agreements related to the Separation Agreement. Otherwise, each of the Parties agrees that, with respect\nto the Confidential Information of the other Party, it will not (i) take any affirmative action to access such Confidential Information; (ii) directly or\nindirectly utilize any such Confidential Information in its business; (ii) manufacture and/or sell any product or provide any service that is based in\nwhole or in part on such Confidential Information; (iii) copy or modify such Confidential Information, or any copy or portion thereof; or (iv)\ndisclose such Confidential Information to any third party.\n3. Prior Disclosures. Prior to the Separation Agreement, Circuit City and CarMax may have exchanged information within their\nconsolidated corporate structure without restriction. Such information supplied to one Party by the other prior to the execution of this Agreement\nshall nonetheless be considered Confidential Information (except as specifically excluded pursuant to Section 5 below) for the purposes of this\nAgreement and shall be subject to the terms and conditions hereof.\n4. Specific Restriction Regarding Waiver of Attorney-Client Privilege or Work Product Doctrine. Prior to any action by the either Party\nthat could reasonably be expected to lead to or that would constitute waiver of attorney-client privilege or work product doctrine, the Party\ndisclosing the information must give prior notice to the other Party as soon as possible.\n2\n5. Nonprotected Information. The Parties agree that their mutual covenants with respect to each other's Confidential Information shall not\napply to any information, data or other materials imparted to the extent that any of the following conditions apply:\n(a) The information is, or any time hereafter becomes, available to the public or contained in a filing to a government agency without\nbreach of this Agreement by the receiving Party;\n(b) The information is obtained by the recipient from any other person, firm or company having no obligation to or relationship with the\ndisclosing Party;\n(c) The information is developed by or for recipient independently of information received from one or more of the Parties hereto; or\n(d) The information is more than ten (10) years old.\n6. Court-Ordered Disclosure. No Party hereto shall be liable for disclosure of Confidential Information of the other Party if made in\nresponse to a valid order of a court or authorized agency of government; provided, however that five (5) days' notice first be given to the\nother\nParty\nso a protective order, if appropriate, and may be sought by such Party with the cooperation of the other Party.\n7. Disclosure of Confidentiality Agreement Terms. Notwithstanding any other provisions hereof, the terms of this Agreement shall not be\ndeemed to be the Confidential Information of any Party hereto, and each Party shall have the right to disclose the terms hereof to third parties in its\nown discretion.\n8. No Conveyance or License. Nothing in this Agreement shall be construed to convey to the recipient of Confidential Information any\nright, title, interest or copyright in any Confidential Information, or any license to use, sell, exploit, copy or further develop any such Confidential\nInformation. This Agreement does not in any way bind the Parties to enter into a business relationship of any type with each other.\n9. Injunctive Relief. The Parties agree that a breach by either Party of this Agreement with respect to the Confidential Information of the\nother Party to this Agreement will cause irreparable damages to the other Party (the "Non-Breaching Party") for which recovery of money damages\nwould be inadequate, and that the Non-Breaching Party shall, therefore, be entitled to obtain timely injunctive relief to protect its rights under this\nAgreement in addition to any and all remedies available at law without the need to post a bond or other undertaking.\n3\n10. Governing Law and Choice of Forum. This Agreement has been made under and shall be governed by, interpreted and enforced in\naccordance with the laws of the Commonwealth of Virginia without regard to the conflict of laws rules thereof. All disputes hereunder shall be\nresolved in the applicable state or Federal courts of Virginia. The parties consent to the jurisdiction of such courts, agree to accept service of process\nby mail, and waive any jurisdictional or venue defenses otherwise available.\n11. Agreement Binding on Successors. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, and their\nheirs, administrators, successors and assigns.\n12. Waiver. The failure of either Party at any time or times to demand strict performance by the other Party of the terms, covenants, or\nconditions set forth in this Agreement shall not be construed as a continuing waiver or relinquishment thereof, and either Party may at any time\ndemand strict and complete performance of such terms, covenants, and conditions.\n13. Assignability. This Agreement is personal to both Parties and may not be assigned by any act of either Party or by operation of law\nunless in connection with a transfer of substantially all the assets of such Party as a transfer to its affiliate.\n14. Severability. If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect\nthe validity or operation of any other provision, and such invalid provision shall be deemed to be severed from the Agreement.\n15. Significance of Headings. Paragraph headings contained herein are solely for the purpose of aiding in speedy location of subject matter\nand are not in any sense to be used in the construction of this Agreement. Accordingly, in case of any questions with respect to the construction\nof\nthis Agreement, it is to be construed as though paragraph headings had been omitted.\n16. Integration. This Agreement constitutes the final, exclusive, and complete expression of the agreement of the Parties hereto, and\nit\nembodies all of the terms and conditions of the Agreement between the Parties with respect to the subject matter hereof. This Agreement is expressly\nintended to replace and supersede all prior and contemporaneous agreements, proposals, negotiations, representations, and warranties, if any,\nbetween the Parties whether oral or written with respect to the subject matter hereof. There are no agreements, representations, or warranties that\nhave not been included in this Agreement with respect to the subject matter hereof. It represents the result of arms length negotiation between the\nParties and shall be interpreted and construed without regard to any presumption or other rule requiring construction against either Party.\n4\n17. Amendments. This Agreement shall not be modified or amended except in writing signed by the parties hereto and specifically referring\nto this Agreement.\n18. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all\nof\nwhich together will constitute one and the same instrument.\n*\n*k\n*\n*k\n*\n[REMAINDER OF PAGE INTENTIONALLY BLANK]\n5\nIN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the latest date set forth below.\nCircuit City Stores, Inc.\nCarMax Inc.\nBy:\nBy:\nTitle:\nTitle:\nDate:\nDate:\n6	EX-10.10 11 dex1010.htm FORM OF CONFIDENTIALITY AGREEMENT\nExhibit 10.10\nFORM OF CONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (“Agreement”) is made as of the\nday of\n,\nby and among Circuit City Stores, Inc.,\n(“Circuit City”) a Virginia corporation and CarMax, Inc., a Virginia corporation (“CarMax”), either Circuit City or CarMax as a “Party” or\ncollectively, as the “Parties”.\nINTRODUCTION\nA. Circuit City and CarMax have executed a Separation Agreement dated as of (the “Separation Agreement”), pursuant to which CarMax and\nthe CarMax Subsidiaries separated from Circuit City and the Circuit City Subsidiaries (the “Spin-off”). For purposes of this Agreement, Circuit City\nand the Circuit City Subsidiaries collectively, or CarMax and the CarMax Subsidiaries collectively, shall each be referred to as a “Party”.\nB. Prior to the Spin-off, CarMax existed as part of Circuit City, resulting in the sharing and consolidation of Confidential Information (as\ndefined below).\nC. As a result of the historical co-mingling of Circuit City and CarMax information prior to the Spin-off, there are paper records, localized\nelectronic records (stored on individual PC’s or discs) or information stored in other media containing Confidential Information of the other Party.\nD. Further, pursuant to the Separation Agreement, Circuit City will provide certain transition services to CarMax following the Spin-off\npursuant to Transition Services Agreement between Circuit City and CarMax. As a result, certain Circuit City employees will have access to\nCarMax’s Confidential Information.\nE. The Parties agree that full segregation of all co-mingled Confidential Information that pre-dates the Spin-off is not practical and that the\ndisclosure of Confidential Information during the provision of services pursuant to the Transition Services Agreement or other Ancillary Agreements\nmay be unavoidable.\nNOW, THEREFORE, in consideration of the joint nature of the disclosure and the business relationship between the parties, it is hereby agreed\nas follows:\n1. Definition. For purposes of this Agreement, the term “Confidential Information” shall mean proprietary and confidential business\ninformation obtained by either Party at any time including, without limitation, the following:\n(a) Any trade secret, know-how, invention, software program, application, documentation, schematic, procedure, contract, information,\nknowledge, data, process, technique, design, drawing, program, formula or test data, work in progress, engineering, manufacturing, marketing,\nfinancial, sales, supplier, customer, employee, investor, or business information, whether in oral, written, graphic or electronic form;\n(b) Any non-public business information, including, without limitation, personnel data; correspondence with governmental agencies;\nhistorical customer information and data; historical cost information such as budgets and operating expenses and capital costs; and projected\ncapital additions and operating cost information;\n(c) Any document, diagram, photograph, drawing, computer program or other communication that is either conspicuously marked\n“confidential”, or is known or reasonably should have been known by the Party in possession to be confidential; and\n(d) Any advice, information, exhibits, documentation or any other information that a Party reasonably expects would be protected by\nattorney-client privilege or work product doctrine or other applicable privileges.\n2. Prohibition of Use. Circuit City acknowledges that it is authorized to access and use the Confidential Information of CarMax for the sole\npurpose of performing the services it is contractually bound to provide to such parties, specifically with respect to carrying out its obligations under\nthe Transition Services Agreement and other agreements related to the Separation Agreement. Otherwise, each of the Parties agrees that, with respect\nto the Confidential Information of the other Party, it will not (i) take any affirmative action to access such Confidential Information; (ii) directly or\nindirectly utilize any such Confidential Information in its business; (ii) manufacture and/or sell any product or provide any service that is based in\nwhole or in part on such Confidential Information; (iii) copy or modify such Confidential Information, or any copy or portion thereof; or (iv)\ndisclose such Confidential Information to any third party.\n3. Prior Disclosures. Prior to the Separation Agreement, Circuit City and CarMax may have exchanged information within their\nconsolidated corporate structure without restriction. Such information supplied to one Party by the other prior to the execution of this Agreement\nshall nonetheless be considered Confidential Information (except as specifically excluded pursuant to Section 5 below) for the purposes of this\nAgreement and shall be subject to the terms and conditions hereof.\n4. Specific Restriction Regarding Waiver of Attorney-Client Privilege or Work Product Doctrine. Prior to any action by the either Party\nthat could reasonably be expected to lead to or that would constitute waiver of attorney-client privilege or work product doctrine, the Party\ndisclosing the information must give prior notice to the other Party as soon as possible.\n2\n5. Nonprotected Information. The Parties agree that their mutual covenants with respect to each other’s Confidential Information shall not\napply to any information, data or other materials imparted to the extent that any of the following conditions apply:\n(a) The information is, or any time hereafter becomes, available to the public or contained in a filing to a government agency without\nbreach of this Agreement by the receiving Party;\n(b) The information is obtained by the recipient from any other person, firm or company having no obligation to or relationship with the\ndisclosing Party;\n(c) The information is developed by or for recipient independently of information received from one or more of the Parties hereto; or\n(d) The information is more than ten (10) years old.\n6. Court-Ordered Disclosure. No Party hereto shall be liable for disclosure of Confidential Information of the other Party if made in\nresponse to a valid order of a court or authorized agency of government; provided, however that five (5) days’ notice first be given to the other Party\nso a protective order, if appropriate, and may be sought by such Party with the cooperation of the other Party.\n7. Disclosure of Confidentiality Agreement Terms. Notwithstanding any other provisions hereof, the terms of this Agreement shall not be\ndeemed to be the Confidential Information of any Party hereto, and each Party shall have the right to disclose the terms hereof to third parties in its\nown discretion.\n8. No Conveyance or License. Nothing in this Agreement shall be construed to convey to the recipient of Confidential Information any\nright, title, interest or copyright in any Confidential Information, or any license to use, sell, exploit, copy or further develop any such Confidential\nInformation. This Agreement does not in any way bind the Parties to enter into a business relationship of any type with each other.\n9. Injunctive Relief. The Parties agree that a breach by either Party of this Agreement with respect to the Confidential Information of the\nother Party to this Agreement will cause irreparable damages to the other Party (the “Non-Breaching Party”) for which recovery of money damages\nwould be inadequate, and that the Non-Breaching Party shall, therefore, be entitled to obtain timely injunctive relief to protect its rights under this\nAgreement in addition to any and all remedies available at law without the need to post a bond or other undertaking.\n3\n10. Governing Law and Choice of Forum. This Agreement has been made under and shall be governed by, interpreted and enforced in\naccordance with the laws of the Commonwealth of Virginia without regard to the conflict of laws rules thereof. All disputes hereunder shall be\nresolved in the applicable state or Federal courts of Virginia. The parties consent to the jurisdiction of such courts, agree to accept service of process\nby mail, and waive any jurisdictional or venue defenses otherwise available.\n11. Agreement Binding on Successors. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, and their\nheirs, administrators, successors and assigns.\n12. Waiver. The failure of either Party at any time or times to demand strict performance by the other Party of the terms, covenants, or\nconditions set forth in this Agreement shall not be construed as a continuing waiver or relinquishment thereof, and either Party may at any time\ndemand strict and complete performance of such terms, covenants, and conditions.\n13. Assignability. This Agreement is personal to both Parties and may not be assigned by any act of either Party or by operation of law\nunless in connection with a transfer of substantially all the assets of such Party as a transfer to its affiliate.\n14. Severability. If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect\nthe validity or operation of any other provision, and such invalid provision shall be deemed to be severed from the Agreement.\n15. Significance of Headings. Paragraph headings contained herein are solely for the purpose of aiding in speedy location of subject matter\nand are not in any sense to be used in the construction of this Agreement. Accordingly, in case of any questions with respect to the construction of\nthis Agreement, it is to be construed as though paragraph headings had been omitted.\n16. Integration. This Agreement constitutes the final, exclusive, and complete expression of the agreement of the Parties hereto, and it\nembodies all of the terms and conditions of the Agreement between the Parties with respect to the subject matter hereof. This Agreement is expressly\nintended to replace and supersede all prior and contemporaneous agreements, proposals, negotiations, representations, and warranties, if any,\nbetween the Parties whether oral or written with respect to the subject matter hereof. There are no agreements, representations, or warranties that\nhave not been included in this Agreement with respect to the subject matter hereof. It represents the result of arms length negotiation between the\nParties and shall be interpreted and construed without regard to any presumption or other rule requiring construction against either Party.\n4\n17. Amendments. This Agreement shall not be modified or amended except in writing signed by the parties hereto and specifically referring\nto this Agreement.\n18. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of\nwhich together will constitute one and the same instrument.\n*\n*\n*\n*\n*\n[REMAINDER OF PAGE INTENTIONALLY BLANK]\n5\nIN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the latest date set forth below.\nCircuit City Stores, Inc.\nCarMax Inc.\nBy:\nBy:\nTitle:\nTitle:\nDate:\nDate:\n6
44d0e1f70e321bbedced3ad99d891f23.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 14 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nExecution Version\nCONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is entered into as of the 30 of July 2010 and shall be deemed to be effective as of July 23, 2010 between Endo\nPharmaceuticals Inc., whose main offices are located at 100 Endo Boulevard, Chadds Ford, Pennsylvania 19317, for itself and its subsidiaries, each\nof which shall be bound by this Agreement as if each had separately executed this Agreement (collectively “Endo”), and Penwest Pharmaceuticals\nCo. located at 2981 Route 22, Patterson, NY 12563 ( “Penwest”).\nWHEREAS, the parties hereto wish to explore a mutually beneficial relationship which may result in a merger, acquisition or other consolidation of\nthe businesses of the parties (the “Purpose”), and in so doing, may disclose to each other certain non-public confidential and proprietary information\npertaining to such possible business relationship, as set forth below.\nWHEREAS, the parties hereto are parties to that Amended and Restated Strategic Alliance Agreement, dated as of April 2, 2002, as amended (the\n“Alliance Agreement”), pursuant to which each party is bound by confidentiality obligations as set forth in Section 10.1 and 10.2 thereof.\nNOW THEREFORE, the parties hereto, intending to be legally bound, agree as follows:\n1. For purposes of this Agreement, “Confidential Information” shall mean all non-public and proprietary information that one party has learned\nof or become aware of or has been or will be disclosed by one party, or one of its Affiliates or Representatives, to the other party, or one of its\nAffiliates or Representatives, in connection with the Purpose, whether set forth orally or in writing which may relate to among other things,\ntheir respective business interests, technical information, clinical data, product specifications, product development plans and ideas, marketing\nplans and ideas, manufacturing information or business operations. “Confidential Information” shall also include the substance of the recent\ndiscussions between the parties with respect to the Purpose as well as that such discussions have taken and are taking place and that this\nAgreement exists and that Confidential Information has been requested or made available. “Affiliate” shall mean any corporation, company,\npartnership, joint venture or other entity which controls, is controlled by, or is under common control with a party hereto; for purposes of this\ndefinition, “control” shall mean (a) in the case of corporate entities, direct or indirect ownership of at least fifty percent (50%) of the stock or\nshares having the right to vote for the election of directors, and (b) in the case of non-corporate entities, direct or indirect ownership of at least\nfifty percent (50%) of the equity interest with the power to direct the management and policies of such non-corporate entities.\n2. The parties hereby agree that the following shall not be considered Confidential Information subject to this Agreement:\n(a) information that, prior to the time of disclosure, is in the public domain , other than through a breach of the Alliance Agreement;\n(b) information that becomes part of the public domain or publicly known by publication or otherwise, provided that such publication or\nother means of disclosure is not in violation of this Agreement or the Alliance Agreement;\n(c) information that the receiving party can establish in writing was already known to it or was in its possession prior to the time of\ndisclosure hereunder and was not acquired, directly or indirectly, from the disclosing party pursuant to the Alliance Agreement;\nth\nConfidentiality Agreement\n(d) information that the receiving party lawfully received from a third party, provided however, that such third party was not obligated to\nhold such information in confidence;\n(e) information that was independently developed by the receiving party without reference to any Confidential Information of the disclosing\nparty, or to any information of the disclosing party which the receiving party was obligated to keep confidential pursuant to the Alliance\nAgreement, as established by appropriate documentation; and\n(f) information that the receiving party is compelled to disclose by a court or other tribunal of competent jurisdiction, provided however,\nthat in such case the receiving party shall give as much advance notice as feasible to the disclosing party so that the disclosing party may\nseek a protective order or other remedy from said court or tribunal. In any event, the receiving party shall disclose only that portion of\nthe Confidential Information that, in the opinion of its legal counsel, is legally required to be disclosed and will exercise reasonable\nefforts to ensure that any such information so disclosed will be accorded confidential treatment by said court or tribunal.\n3. The receiving party shall not use Confidential Information of the disclosing party for any purpose other than for the Purpose. The parties\nhereby agree to hold in strictest confidence any and all Confidential Information disclosed by one party to the other under the terms of this\nAgreement and shall use such information solely for the Purpose and, if a business relationship is consummated, carrying out such business\nrelationship.\nThe receiving party will not disclose any Confidential Information to any person other than to its Affiliates, employees, agents, representatives\n(including attorneys, accountants, consultants and advisors), directors, officers, employees and employees of Affiliates (collectively,\n“Representatives”) that have a need to know such information to effectuate the Purpose and that such Representatives shall be informed of this\nAgreement and shall be directed to maintain the confidentiality of such Confidential Information.\n4. Upon written request of the disclosing party, the receiving party shall return promptly to the disclosing party (or, at the receiving party’s\noption, destroy) all Confidential Information furnished to it, including any copies thereof and notes, extracts, or derivative materials based\nthereon (provided that if the receiving party so opts to destroy, the receiving party shall confirm and certify such destruction in writing to the\ndisclosing party); provided, however, that, to the extent that any such Confidential Information is also information which is subject to the\nconfidentiality obligations set forth in the Alliance Agreement, the receiving party may retain such Confidential Information for purposes of\nthe Alliance Agreement in accordance with the provisions of the Alliance Agreement and the receiving party shall remain bound by the\nconfidentiality provisions in the Alliance Agreement; and until the expiration of the confidentiality obligations set forth in this Agreement,\nshall keep confidential and not use other than for the Purpose any analyses, compilations, studies or other documents which reflect any of the\nConfidential Information. Notwithstanding the foregoing provision, the legal counsel of both parties may retain one copy of Confidential\nInformation in its confidential files solely for archival purposes.\n5. Title to, and all rights emanating from the ownership of, all Confidential Information disclosed under this Agreement shall remain vested in the\ndisclosing party, provided, however that the ownership of information disclosed pursuant to this Agreement that is also disclosed pursuant to\nthe Alliance Agreement shall be as set forth in the Alliance Agreement. Nothing herein shall be construed as granting any license or option in\nfavor of the receiving party in such Confidential Information under any patent, copyright and/or any other rights now or hereafter\nPage2of4\nConfidentiality Agreement\nheld by the disclosing party in or as a result of such Confidential Information, except as otherwise set forth in the Alliance Agreement or as\notherwise specifically agreed upon by the parties.\n6. Confidential Information shall remain subject to this Agreement for a period of five (5) years beyond the date of disclosure or generation of\nsuch Confidential Information.\n7. The execution and performance of this Agreement does not obligate the parties to enter into any other agreement or to perform any obligations\nother than as specified herein.\n8. The receiving party agrees that the disclosure of Confidential Information to any third party without the express written consent of the\ndisclosing party may cause irreparable harm to the disclosing party, and that any breach or threatened breach of this Agreement by the\nreceiving party will entitle the disclosing party to seek injunctive relief, in addition to any other legal remedies available to it, in any court of\ncompetent jurisdiction.\n9. No failure or delay by the disclosing party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any\nsingle or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n10. The parties hereby agree that this Agreement represents the entire agreement between the parties with respect to the subject matter hereof and\nsupersedes all prior and/or contemporaneous agreements and understandings between the parties with respect to the handling of Confidential\nInformation, whether written, oral, visual, audio or in any other medium whatsoever; provided, however, that (a) the Alliance Agreement\nremains in effect, (b) the provisions of this Agreement shall not release a party from its obligations of confidentiality with respect to\ninformation protected pursuant to the Alliance Agreement, (c) the provisions of the Alliance Agreement shall not release a party from its\nobligations of confidentiality with respect to Confidential Information as set forth in this Agreement, and (d) to the extent that any Confidential\nInformation under this Agreement is also subject to the confidentiality obligations under the Alliance Agreement, such information shall be\nprotected under the relevant agreement for the longer of the period of time set forth in Section 6 of this Agreement or the relevant period of\ntime pursuant to the Alliance Agreement.\n11. This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania without reference to its conflict of laws rules. This\nagreement may not be amended or in any manner modified except by a written instrument signed by authorized representatives of both Parties.\nIf any provision of this Agreement is found to be unenforceable, the remainder shall be enforced as fully as possible and the unenforceable\nprovision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the intention\nof the parties as expressed herein.\n12. This Agreement shall be binding on each party’s successors and assigns. This Agreement may not be assigned without the written consent of\nboth parties.\n13. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the\nsame agreement. Signatures to this Agreement transmitted by facsimile, by electronic mail in “portable document format” (“.pdf”), or by any\nother electronic means which preserves the original graphic and pictorial appearance of the Agreement, shall have the same effect as physical\ndelivery of the paper document bearing the original signature.\nPage3of4\nConfidentiality Agreement\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nENDO PHARMACEUTICALS INC.\nPENWEST PHARMACEUTICALS CO.\nBy: /s/ Caroline B. Manogue\nBy: /s/ Jennifer L. Good\nName: Caroline B. Manogue\nName: Jennifer L. Good\nTitle: Executive Vice President\nChief Legal Officer and Secretary\nTitle: President and Chief Executive Officer\nPage4of4	EX-99.(D)(3) 14 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nExecution Version\nCONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is entered into as of the 30t of July 2010 and shall be deemed to be effective as of July 23, 2010 between Endo\nPharmaceuticals Inc., whose main offices are located at 100 Endo Boulevard, Chadds Ford, Pennsylvania 19317, for itself and its subsidiaries, each\nof which shall be bound by this Agreement as if each had separately executed this Agreement (collectively “Endo”), and Penwest Pharmaceuticals\nCo. located at 2981 Route 22, Patterson, NY 12563 ( “Penwest”).\nWHEREAS, the parties hereto wish to explore a mutually beneficial relationship which may result in a merger, acquisition or other consolidation of\nthe businesses of the parties (the “Purpose”), and in so doing, may disclose to each other certain non-public confidential and proprietary information\npertaining to such possible business relationship, as set forth below.\nWHEREAS, the parties hereto are parties to that Amended and Restated Strategic Alliance Agreement, dated as of April 2, 2002, as amended (the\n“Alliance Agreement”), pursuant to which each party is bound by confidentiality obligations as set forth in Section 10.1 and 10.2 thereof.\nNOW THEREFORE, the parties hereto, intending to be legally bound, agree as follows:\n1. For purposes of this Agreement, “Confidential Information” shall mean all non-public and proprietary information that one party has learned\nof or become aware of or has been or will be disclosed by one party, or one of its Affiliates or Representatives, to the other party, or one of its\nAffiliates or Representatives, in connection with the Purpose, whether set forth orally or in writing which may relate to among other things,\ntheir respective business interests, technical information, clinical data, product specifications, product development plans and ideas, marketing\nplans and ideas, manufacturing information or business operations. “Confidential Information” shall also include the substance of the recent\ndiscussions between the parties with respect to the Purpose as well as that such discussions have taken and are taking place and that this\nAgreement exists and that Confidential Information has been requested or made available. “Affiliate” shall mean any corporation, company,\npartnership, joint venture or other entity which controls, is controlled by, or is under common control with a party hereto; for purposes of this\ndefinition, “control” shall mean (a) in the case of corporate entities, direct or indirect ownership of at least fifty percent (50%) of the stock or\nshares having the right to vote for the election of directors, and (b) in the case of non-corporate entities, direct or indirect ownership of at least\nfifty percent (50%) of the equity interest with the power to direct the management and policies of such non-corporate entities.\n2. The parties hereby agree that the following shall not be considered Confidential Information subject to this Agreement:\n(a) information that, prior to the time of disclosure, is in the public domain , other than through a breach of the Alliance Agreement;\n(b) information that becomes part of the public domain or publicly known by publication or otherwise, provided that such publication or\nother means of disclosure is not in violation of this Agreement or the Alliance Agreement;\n(c) information that the receiving party can establish in writing was already known to it or was in its possession prior to the time of\ndisclosure hereunder and was not acquired, directly or indirectly, from the disclosing party pursuant to the Alliance Agreement;\nConfidentiality Agreement\n(d) information that the receiving party lawfully received from a third party, provided however, that such third party was not obligated to\nhold such information in confidence;\n(e) information that was independently developed by the receiving party without reference to any Confidential Information of the disclosing\nparty, or to any information of the disclosing party which the receiving party was obligated to keep confidential pursuant to the Alliance\nAgreement, as established by appropriate documentation; and\n(f) information that the receiving party is compelled to disclose by a court or other tribunal of competent jurisdiction, provided however,\nthat in such case the receiving party shall give as much advance notice as feasible to the disclosing party so that the disclosing party may\nseek a protective order or other remedy from said court or tribunal. In any event, the receiving party shall disclose only that portion of\nthe Confidential Information that, in the opinion of its legal counsel, is legally required to be disclosed and will exercise reasonable\nefforts to ensure that any such information so disclosed will be accorded confidential treatment by said court or tribunal.\nThe receiving party shall not use Confidential Information of the disclosing party for any purpose other than for the Purpose. The parties\nhereby agree to hold in strictest confidence any and all Confidential Information disclosed by one party to the other under the terms of this\nAgreement and shall use such information solely for the Purpose and, if a business relationship is consummated, carrying out such business\nrelationship.\nThe receiving party will not disclose any Confidential Information to any person other than to its Affiliates, employees, agents, representatives\n(including attorneys, accountants, consultants and advisors), directors, officers, employees and employees of Affiliates (collectively,\n“Representatives”) that have a need to know such information to effectuate the Purpose and that such Representatives shall be informed of this\nAgreement and shall be directed to maintain the confidentiality of such Confidential Information.\nUpon written request of the disclosing party, the receiving party shall return promptly to the disclosing party (or, at the receiving party’s\noption, destroy) all Confidential Information furnished to it, including any copies thereof and notes, extracts, or derivative materials based\nthereon (provided that if the receiving party so opts to destroy, the receiving party shall confirm and certify such destruction in writing to the\ndisclosing party); provided, however, that, to the extent that any such Confidential Information is also information which is subject to the\nconfidentiality obligations set forth in the Alliance Agreement, the receiving party may retain such Confidential Information for purposes of\nthe Alliance Agreement in accordance with the provisions of the Alliance Agreement and the receiving party shall remain bound by the\nconfidentiality provisions in the Alliance Agreement; and until the expiration of the confidentiality obligations set forth in this Agreement,\nshall keep confidential and not use other than for the Purpose any analyses, compilations, studies or other documents which reflect any of the\nConfidential Information. Notwithstanding the foregoing provision, the legal counsel of both parties may retain one copy of Confidential\nInformation in its confidential files solely for archival purposes.\nTitle to, and all rights emanating from the ownership of, all Confidential Information disclosed under this Agreement shall remain vested in the\ndisclosing party, provided, however that the ownership of information disclosed pursuant to this Agreement that is also disclosed pursuant to\nthe Alliance Agreement shall be as set forth in the Alliance Agreement. Nothing herein shall be construed as granting any license or option in\nfavor of the receiving party in such Confidential Information under any patent, copyright and/or any other rights now or hereafter\nPage 2 of 4\n10. 11. 12. 13. Confidentiality Agreement\nheld by the disclosing party in or as a result of such Confidential Information, except as otherwise set forth in the Alliance Agreement or as\notherwise specifically agreed upon by the parties.\nConfidential Information shall remain subject to this Agreement for a period of five (5) years beyond the date of disclosure or generation of\nsuch Confidential Information.\nThe execution and performance of this Agreement does not obligate the parties to enter into any other agreement or to perform any obligations\nother than as specified herein.\nThe receiving party agrees that the disclosure of Confidential Information to any third party without the express written consent of the\ndisclosing party may cause irreparable harm to the disclosing party, and that any breach or threatened breach of this Agreement by the\nreceiving party will entitle the disclosing party to seek injunctive relief, in addition to any other legal remedies available to it, in any court of\ncompetent jurisdiction.\nNo failure or delay by the disclosing party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any\nsingle or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\nThe parties hereby agree that this Agreement represents the entire agreement between the parties with respect to the subject matter hereof and\nsupersedes all prior and/or contemporaneous agreements and understandings between the parties with respect to the handling of Confidential\nInformation, whether written, oral, visual, audio or in any other medium whatsoever; provided, however, that (a) the Alliance Agreement\nremains in effect, (b) the provisions of this Agreement shall not release a party from its obligations of confidentiality with respect to\ninformation protected pursuant to the Alliance Agreement, (c) the provisions of the Alliance Agreement shall not release a party from its\nobligations of confidentiality with respect to Confidential Information as set forth in this Agreement, and (d) to the extent that any Confidential\nInformation under this Agreement is also subject to the confidentiality obligations under the Alliance Agreement, such information shall be\nprotected under the relevant agreement for the longer of the period of time set forth in Section 6 of this Agreement or the relevant period of\ntime pursuant to the Alliance Agreement.\nThis Agreement shall be governed by the laws of the Commonwealth of Pennsylvania without reference to its conflict of laws rules. This\nagreement may not be amended or in any manner modified except by a written instrument signed by authorized representatives of both Parties.\nIf any provision of this Agreement is found to be unenforceable, the remainder shall be enforced as fully as possible and the unenforceable\nprovision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the intention\nof the parties as expressed herein.\nThis Agreement shall be binding on each party’s successors and assigns. This Agreement may not be assigned without the written consent of\nboth parties.\nThis Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the\nsame agreement. Signatures to this Agreement transmitted by facsimile, by electronic mail in “portable document format” (“.pdf”), or by any\nother electronic means which preserves the original graphic and pictorial appearance of the Agreement, shall have the same effect as physical\ndelivery of the paper document bearing the original signature.\nPage 3 of 4\nConfidentiality Agreement\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nENDO PHARMACEUTICALS INC. PENWEST PHARMACEUTICALS CO.\nBy:  /s/ Caroline B. Manogue By: /s/ Jennifer L. Good\nName: Caroline B. Manogue Name: Jennifer L. Good\nTitle: Executive Vice President Title: President and Chief Executive Officer\nChief Legal Officer and Secretary\nPage 4 of 4	EX-99.(D)(3) 14 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nExecution Version\nCONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is entered into as of the 30th of July 2010 and shall be deemed to be effective as of July 23, 2010 between Endo\nPharmaceuticals Inc., whose main offices are located at 100 Endo Boulevard, Chadds Ford, Pennsylvania 19317, for itself and its subsidiaries, each\nof which shall be bound by this Agreement as if each had separately executed this Agreement (collectively "Endo"), and Penwest Pharmaceuticals\nCo. located at 2981 Route 22, Patterson, NY 12563 ( "Penwest").\nWHEREAS, the parties hereto wish to explore a mutually beneficial relationship which may result in a merger, acquisition or other consolidation of\nthe businesses of the parties (the "Purpose"), and in so doing, may disclose to each other certain non-public confidential and proprietary information\npertaining to such possible business relationship, as set forth below.\nWHEREAS, the parties hereto are parties to that Amended and Restated Strategic Alliance Agreement, dated as of April 2, 2002, as amended (the\n"Alliance Agreement"), pursuant to which each party is bound by confidentiality obligations as set forth in Section 10.1 and 10.2 thereof.\nNOW THEREFORE, the parties hereto, intending to be legally bound, agree as follows:\n1.\nFor purposes of this Agreement, "Confidential Information" shall mean all non-public and proprietary information that one party has learned\nof or become aware of or has been or will be disclosed by one party, or one of its Affiliates or Representatives, to the other party, or one of\nits\nAffiliates or Representatives, in connection with the Purpose, whether set forth orally or in writing which may relate to among other things,\ntheir respective business interests, technical information, clinical data, product specifications, product development plans and ideas, marketing\nplans and ideas, manufacturing information or business operations. "Confidential Information" shall also include the substance of the recent\ndiscussions between the parties with respect to the Purpose as well as that such discussions have taken and are taking place and that this\nAgreement exists and that Confidential Information has been requested or made available. "Affiliate" shall mean any corporation, company,\npartnership, joint venture or other entity which controls, is controlled by, or is under common control with a party hereto; for purposes of this\ndefinition, "control" shall mean (a) in the case of corporate entities, direct or indirect ownership of at least fifty percent (50%) of the stock or\nshares having the right to vote for the election of directors, and (b) in the case of non-corporate entities, direct or indirect ownership of at least\nfifty percent (50%) of the equity interest with the power to direct the management and policies of such non-corporate entities.\n2.\nThe parties hereby agree that the following shall not be considered Confidential Information subject to this Agreement:\n(a)\ninformation that, prior to the time of disclosure, is in the public domain other than through a breach of the Alliance Agreement;\n(b)\ninformation that becomes part of the public domain or publicly known by publication or otherwise, provided that such publication or\nother means of disclosure is not in violation of this Agreement or the Alliance Agreement;\n(c)\ninformation that the receiving party can establish in writing was already known to it or was in its possession prior to the time of\ndisclosure hereunder and was not acquired, directly or indirectly, from the disclosing party pursuant to the Alliance Agreement;\nConfidentiality Agreement\n(d)\ninformation that the receiving party lawfully received from a third party, provided however, that such third party was not obligated to\nhold such information in confidence;\n(e)\ninformation that was independently developed by the receiving party without reference to any Confidential Information of the disclosing\nparty, or to any information of the disclosing party which the receiving party was obligated to keep confidential pursuant to the Alliance\nAgreement, as established by appropriate documentation; and\n(f)\ninformation that the receiving party is compelled to disclose by a court or other tribunal of competent jurisdiction, provided however,\nthat in such case the receiving party shall give as much advance notice as feasible to the disclosing party so that the disclosing party may\nseek a protective order or other remedy from said court or tribunal. In any event, the receiving party shall disclose only that portion of\nthe Confidential Information that, in the opinion of its legal counsel, is legally required to be disclosed and will exercise reasonable\nefforts to ensure that any such information so disclosed will be accorded confidential treatment by said court or tribunal.\n3.\nThe receiving party shall not use Confidential Information of the disclosing party for any purpose other than for the Purpose. The parties\nhereby agree to hold in strictest confidence any and all Confidential Information disclosed by one party to the other under the terms of this\nAgreement and shall use such information solely for the Purpose and, if a business relationship is consummated, carrying out such business\nrelationship.\nThe receiving party will not disclose any Confidential Information to any person other than to its Affiliates, employees, agents, representatives\n(including attorneys, accountants, consultants and advisors), directors, officers, employees and employees of Affiliates (collectively,\n"Representatives") that have a need to know such information to effectuate the Purpose and that such Representatives shall be informed of this\nAgreement and shall be directed to maintain the confidentiality of such Confidentia Information.\n4.\nUpon written request of the disclosing party, the receiving party shall return promptly to the disclosing party (or, at the receiving party's\noption, destroy) all Confidential Information furnished to it, including any copies thereof and notes, extracts, or derivative materials based\nthereon (provided that if the receiving party so opts to destroy, the receiving party shall confirm and certify such destruction in writing to the\ndisclosing party); provided, however, that, to the extent that any such Confidential Information is also information which is subject to the\nconfidentiality obligations set forth in the Alliance Agreement, the receiving party may retain such Confidential Information for purposes of\nthe Alliance Agreement in accordance with the provisions of the Alliance Agreement and the receiving party shall remain bound by the\nconfidentiality provisions in the Alliance Agreement; and until the expiration of the confidentiality obligations set forth in this Agreement,\nshall keep confidential and not use other than for the Purpose any analyses, compilations, studies or other documents which reflect any of the\nConfidential Information. Notwithstanding the foregoing provision, the legal counsel of both parties may retain one copy of Confidential\nInformation in its confidential files solely for archival purposes.\n5.\nTitle to, and all rights emanating from the ownership of, all Confidentia Information disclosed under this Agreement shall remain vested in the\ndisclosing party, provided, however that the ownership of information disclosed pursuant to this Agreement that is also disclosed pursuant to\nthe Alliance Agreement shall be as set forth in the Alliance Agreement. Nothing herein shall be construed as granting any license or option in\nfavor of the receiving party in such Confidential Information under any patent, copyright and/or any other rights now or hereafter\nPage 2 of 4\nConfidentiality Agreement\nheld by the disclosing party in or as a result of such Confidential Information, except as otherwise set forth in the Alliance Agreement or\nas\notherwise specifically agreed upon by the parties.\n6.\nConfidential Information shall remain subject to this Agreement for a period of five (5) years beyond the date of disclosure or generation of\nsuch Confidential Information.\n7.\nThe execution and performance of this Agreement does not obligate the parties to enter into any other agreement or to perform any obligations\nother than as specified herein.\n8.\nThe receiving party agrees that the disclosure of Confidential Information to any third party without the express written consent of the\ndisclosing party may cause irreparable harm to the disclosing party, and that any breach or threatened breach of this Agreement by the\nreceiving party will entitle the disclosing party to seek injunctive relief, in addition to any other legal remedies available to it, in any court of\ncompetent jurisdiction.\n9.\nNo\nfailure\nor\ndelay\nby\nthe\ndisclosing\nparty\nin\nexercising\nany\nright,\npower,\nor\nprivilege\nhereunder\nshall\noperate\nas\na\nwaiver\nthereof,\nnor\nshall\nany\nsingle or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n10.\nThe parties hereby agree that this Agreement represents the entire agreement between the parties with respect to the subject matter hereof and\nsupersedes all prior and/or contemporaneous agreements and understandings between the parties with respect to the handling of Confidential\nInformation, whether written, oral, visual, audio or in any other medium whatsoever; provided, however, that (a) the Alliance Agreement\nremains in effect, (b) the provisions of this Agreement shall not release a party from its obligations of confidentiality with respect to\ninformation protected pursuant to the Alliance Agreement, (c) the provisions of the Alliance Agreement shall not release a party from its\nobligations of confidentiality with respect to Confidential Information as set forth in this Agreement, and (d) to the extent that any Confidential\nInformation under this Agreement is also subject to the confidentiality obligations under the Alliance Agreement, such information shall\nbe\nprotected under the relevant agreement for the longer of the period of time set forth in Section 6 of this Agreement or the relevant period of\ntime pursuant to the Alliance Agreement.\n11. This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania without reference to its conflict of laws rules. This\nagreement may not be amended or in any manner modified except by a written instrument signed by authorized representatives of both Parties.\nIf any provision of this Agreement is found to be unenforceable, the remainder shall be enforced as fully as possible and the unenforceable\nprovision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the intention\nof the parties as expressed herein.\n12. This Agreement shall be binding on each party's successors and assigns. This Agreement may not be assigned without the written consent of\nboth parties.\n13. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the\nsame agreement. Signatures to this Agreement transmitted by facsimile, by electronic mail in "portable document format" (".pdf"), or by any\nother electronic means which preserves the original graphic and pictorial appearance of the Agreement, shall have the same effect as physical\ndelivery of the paper document bearing the original signature.\nPage 3 of 4\nConfidentiality Agreement\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nENDO PHARMACEUTICALS INC.\nPENWEST PHARMACEUTICALS CO.\nBy:\n/s/ Caroline B. Manogue\nBy:\n/s/ Jennifer L. Good\nName: Caroline B. Manogue\nName: Jennifer L. Good\nTitle: Executive Vice President\nTitle: President and Chief Executive Officer\nChief Legal Officer and Secretary\nPage 4 of 4	EX-99.(D)(3) 14 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nExecution Version\nCONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is entered into as of the 30 of July 2010 and shall be deemed to be effective as of July 23, 2010 between Endo\nPharmaceuticals Inc., whose main offices are located at 100 Endo Boulevard, Chadds Ford, Pennsylvania 19317, for itself and its subsidiaries, each\nof which shall be bound by this Agreement as if each had separately executed this Agreement (collectively “Endo”), and Penwest Pharmaceuticals\nCo. located at 2981 Route 22, Patterson, NY 12563 ( “Penwest”).\nWHEREAS, the parties hereto wish to explore a mutually beneficial relationship which may result in a merger, acquisition or other consolidation of\nthe businesses of the parties (the “Purpose”), and in so doing, may disclose to each other certain non-public confidential and proprietary information\npertaining to such possible business relationship, as set forth below.\nWHEREAS, the parties hereto are parties to that Amended and Restated Strategic Alliance Agreement, dated as of April 2, 2002, as amended (the\n“Alliance Agreement”), pursuant to which each party is bound by confidentiality obligations as set forth in Section 10.1 and 10.2 thereof.\nNOW THEREFORE, the parties hereto, intending to be legally bound, agree as follows:\n1. For purposes of this Agreement, “Confidential Information” shall mean all non-public and proprietary information that one party has learned\nof or become aware of or has been or will be disclosed by one party, or one of its Affiliates or Representatives, to the other party, or one of its\nAffiliates or Representatives, in connection with the Purpose, whether set forth orally or in writing which may relate to among other things,\ntheir respective business interests, technical information, clinical data, product specifications, product development plans and ideas, marketing\nplans and ideas, manufacturing information or business operations. “Confidential Information” shall also include the substance of the recent\ndiscussions between the parties with respect to the Purpose as well as that such discussions have taken and are taking place and that this\nAgreement exists and that Confidential Information has been requested or made available. “Affiliate” shall mean any corporation, company,\npartnership, joint venture or other entity which controls, is controlled by, or is under common control with a party hereto; for purposes of this\ndefinition, “control” shall mean (a) in the case of corporate entities, direct or indirect ownership of at least fifty percent (50%) of the stock or\nshares having the right to vote for the election of directors, and (b) in the case of non-corporate entities, direct or indirect ownership of at least\nfifty percent (50%) of the equity interest with the power to direct the management and policies of such non-corporate entities.\n2. The parties hereby agree that the following shall not be considered Confidential Information subject to this Agreement:\n(a) information that, prior to the time of disclosure, is in the public domain , other than through a breach of the Alliance Agreement;\n(b) information that becomes part of the public domain or publicly known by publication or otherwise, provided that such publication or\nother means of disclosure is not in violation of this Agreement or the Alliance Agreement;\n(c) information that the receiving party can establish in writing was already known to it or was in its possession prior to the time of\ndisclosure hereunder and was not acquired, directly or indirectly, from the disclosing party pursuant to the Alliance Agreement;\nth\nConfidentiality Agreement\n(d) information that the receiving party lawfully received from a third party, provided however, that such third party was not obligated to\nhold such information in confidence;\n(e) information that was independently developed by the receiving party without reference to any Confidential Information of the disclosing\nparty, or to any information of the disclosing party which the receiving party was obligated to keep confidential pursuant to the Alliance\nAgreement, as established by appropriate documentation; and\n(f) information that the receiving party is compelled to disclose by a court or other tribunal of competent jurisdiction, provided however,\nthat in such case the receiving party shall give as much advance notice as feasible to the disclosing party so that the disclosing party may\nseek a protective order or other remedy from said court or tribunal. In any event, the receiving party shall disclose only that portion of\nthe Confidential Information that, in the opinion of its legal counsel, is legally required to be disclosed and will exercise reasonable\nefforts to ensure that any such information so disclosed will be accorded confidential treatment by said court or tribunal.\n3. The receiving party shall not use Confidential Information of the disclosing party for any purpose other than for the Purpose. The parties\nhereby agree to hold in strictest confidence any and all Confidential Information disclosed by one party to the other under the terms of this\nAgreement and shall use such information solely for the Purpose and, if a business relationship is consummated, carrying out such business\nrelationship.\nThe receiving party will not disclose any Confidential Information to any person other than to its Affiliates, employees, agents, representatives\n(including attorneys, accountants, consultants and advisors), directors, officers, employees and employees of Affiliates (collectively,\n“Representatives”) that have a need to know such information to effectuate the Purpose and that such Representatives shall be informed of this\nAgreement and shall be directed to maintain the confidentiality of such Confidential Information.\n4. Upon written request of the disclosing party, the receiving party shall return promptly to the disclosing party (or, at the receiving party’s\noption, destroy) all Confidential Information furnished to it, including any copies thereof and notes, extracts, or derivative materials based\nthereon (provided that if the receiving party so opts to destroy, the receiving party shall confirm and certify such destruction in writing to the\ndisclosing party); provided, however, that, to the extent that any such Confidential Information is also information which is subject to the\nconfidentiality obligations set forth in the Alliance Agreement, the receiving party may retain such Confidential Information for purposes of\nthe Alliance Agreement in accordance with the provisions of the Alliance Agreement and the receiving party shall remain bound by the\nconfidentiality provisions in the Alliance Agreement; and until the expiration of the confidentiality obligations set forth in this Agreement,\nshall keep confidential and not use other than for the Purpose any analyses, compilations, studies or other documents which reflect any of the\nConfidential Information. Notwithstanding the foregoing provision, the legal counsel of both parties may retain one copy of Confidential\nInformation in its confidential files solely for archival purposes.\n5. Title to, and all rights emanating from the ownership of, all Confidential Information disclosed under this Agreement shall remain vested in the\ndisclosing party, provided, however that the ownership of information disclosed pursuant to this Agreement that is also disclosed pursuant to\nthe Alliance Agreement shall be as set forth in the Alliance Agreement. Nothing herein shall be construed as granting any license or option in\nfavor of the receiving party in such Confidential Information under any patent, copyright and/or any other rights now or hereafter\nPage2of4\nConfidentiality Agreement\nheld by the disclosing party in or as a result of such Confidential Information, except as otherwise set forth in the Alliance Agreement or as\notherwise specifically agreed upon by the parties.\n6. Confidential Information shall remain subject to this Agreement for a period of five (5) years beyond the date of disclosure or generation of\nsuch Confidential Information.\n7. The execution and performance of this Agreement does not obligate the parties to enter into any other agreement or to perform any obligations\nother than as specified herein.\n8. The receiving party agrees that the disclosure of Confidential Information to any third party without the express written consent of the\ndisclosing party may cause irreparable harm to the disclosing party, and that any breach or threatened breach of this Agreement by the\nreceiving party will entitle the disclosing party to seek injunctive relief, in addition to any other legal remedies available to it, in any court of\ncompetent jurisdiction.\n9. No failure or delay by the disclosing party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any\nsingle or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n10. The parties hereby agree that this Agreement represents the entire agreement between the parties with respect to the subject matter hereof and\nsupersedes all prior and/or contemporaneous agreements and understandings between the parties with respect to the handling of Confidential\nInformation, whether written, oral, visual, audio or in any other medium whatsoever; provided, however, that (a) the Alliance Agreement\nremains in effect, (b) the provisions of this Agreement shall not release a party from its obligations of confidentiality with respect to\ninformation protected pursuant to the Alliance Agreement, (c) the provisions of the Alliance Agreement shall not release a party from its\nobligations of confidentiality with respect to Confidential Information as set forth in this Agreement, and (d) to the extent that any Confidential\nInformation under this Agreement is also subject to the confidentiality obligations under the Alliance Agreement, such information shall be\nprotected under the relevant agreement for the longer of the period of time set forth in Section 6 of this Agreement or the relevant period of\ntime pursuant to the Alliance Agreement.\n11. This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania without reference to its conflict of laws rules. This\nagreement may not be amended or in any manner modified except by a written instrument signed by authorized representatives of both Parties.\nIf any provision of this Agreement is found to be unenforceable, the remainder shall be enforced as fully as possible and the unenforceable\nprovision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the intention\nof the parties as expressed herein.\n12. This Agreement shall be binding on each party’s successors and assigns. This Agreement may not be assigned without the written consent of\nboth parties.\n13. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the\nsame agreement. Signatures to this Agreement transmitted by facsimile, by electronic mail in “portable document format” (“.pdf”), or by any\nother electronic means which preserves the original graphic and pictorial appearance of the Agreement, shall have the same effect as physical\ndelivery of the paper document bearing the original signature.\nPage3of4\nConfidentiality Agreement\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nENDO PHARMACEUTICALS INC.\nPENWEST PHARMACEUTICALS CO.\nBy: /s/ Caroline B. Manogue\nBy: /s/ Jennifer L. Good\nName: Caroline B. Manogue\nName: Jennifer L. Good\nTitle: Executive Vice President\nChief Legal Officer and Secretary\nTitle: President and Chief Executive Officer\nPage4of4
4792b40942a83f57d590a2355c56a314.pdf	effective_date jurisdiction party term	EX-99.(E)(6) 3 dex99e6.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(6)\nCONFIDENTIALITY AGREEMENT\nThis CONFIDENTIALITY AGREEMENT (this “Agreement”), dated as of January 25, 2010, is by and between Protection One, Inc.\n(“Protection One”) and GTCR Golden Rauner II, LLC (“Recipient”). Protection One and Recipient are sometimes collectively referred to herein as\nthe “Parties” and individually as a “Party.” Certain capitalized terms used herein have the meanings set forth in Section 9.\nWITNESSETH\nWHEREAS, Recipient desires that Protection One provide certain information in order to enable Recipient to evaluate the possibility of\nengaging in a strategic transaction (the “Transaction”);\nWHEREAS, during the course of any discussions or negotiations regarding the Transaction, Protection One will from time to time\nprovide Recipient with confidential information;\nWHEREAS, Recipient acknowledges and agrees that the confidential information provided by Protection One, before or after the\nexecution of this Agreement, is proprietary and highly confidential and that the unauthorized disclosure of such confidential information would\nresult in substantial and irreparable harm to Protection One, which harm would be extremely difficult to quantify; and\nWHEREAS, Protection One desires to preserve its employee base, business operations and capital structure free from the disruption that\ncould arise from the misuse of such confidential information.\nNOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and adequacy of\nwhich are hereby acknowledged, the Parties hereto expressly agree as follows:\n1. Evaluation Material. The term “Evaluation Material” means any and all information, in any form or medium, written or oral,\nconcerning or relating to Protection One (whether prepared by Protection One, its Representatives or otherwise, and irrespective of the form or\nmeans of communication and whether it is labeled or otherwise identified as confidential) that is furnished to or on behalf of Recipient by or on\nbehalf of Protection One, including without limitation all oral and written information relating to financial statements, projections, evaluations,\nplans, programs, customers, suppliers, facilities, equipment and other assets, products, processes, manufacturing, marketing, research and\ndevelopment, trade secrets, know-how, patent applications that have not been published, technology and any other confidential information or\nintellectual property of Protection One. In addition, “Evaluation Material” shall be deemed to include all notes, analyses, studies, interpretations,\nmemoranda and other documents, materials or reports (in any form or medium) prepared by Recipient or any of its Representatives that contain,\nreflect or are based upon, in whole or part, the information furnished to or on behalf of Recipient as contemplated hereby. The term “Evaluation\nMaterial” shall not include information that: (a) is or becomes available to the public generally, other than as a result of disclosure by Recipient or\none of its Representatives in breach of the terms of this\nAgreement; (b) becomes available to Recipient from a source other than Protection One or one of its Representatives, including without limitation\nprior to the date hereof, provided that such source is not known by the Recipient after reasonable inquiry to be bound by a confidentiality agreement\nor to have a contractual, legal or fiduciary obligation of confidentiality to Protection One or any other person with respect to such information; or\n(c) has been independently acquired or developed by Recipient without using any Evaluation Material or violating any of its obligations under this\nAgreement.\n2. Use of Evaluation Material and Confidentiality.\n(a) The Recipient agrees that it and its Representatives shall use the Evaluation Material solely for the purpose of evaluating and negotiating\nthe possible Transaction, that neither Recipient nor any of its Representatives will use any of the Evaluation Material in any way that could be\n(directly or indirectly) detrimental to Protection One, and that the Evaluation Material will be kept confidential and that neither Recipient nor any of\nits Representatives will disclose any Evaluation Material in any manner whatsoever; provided, however, that Recipient may disclose Evaluation\nMaterial as follows: (i) to such of its Representatives who need such information for the purpose of evaluating and negotiating the possible\nTransaction, it being understood that such Representatives shall be informed in advance by Recipient of the confidential nature of such information;\n(ii) as expressly contemplated by this Agreement; and (iii) in all other cases, only if and to the extent that Protection One gives its prior written\nconsent to such disclosure.\n(b) As a condition to the furnishing of Evaluation Material to the Representatives of Recipient, Recipient shall cause its Representatives to\ntreat such information in accordance with the provisions of this Agreement and to perform or to comply with the obligations of Recipient with\nrespect to the Evaluation Material as contemplated hereby. Recipient agrees that it will be fully responsible for any breach of any of the provisions of\nthis Agreement by its Representatives.\n(c) Recipient agrees to take all reasonable steps to keep the Evaluation Material and any copies thereof secure and in such a way so as to\nprevent unauthorized access by any third party.\n(d) Recipient agrees that, without the prior written consent of Protection One, except as expressly permitted hereunder, Recipient and its\nRepresentatives shall not disclose to any person, prior to the time of public announcement by Protection One and Recipient of a definitive agreement\nbetween Recipient and Protection One with respect to a Transaction, the fact that the Evaluation Material has been made available to it/them, the fact\nthat discussions or negotiations are taking place or have taken place concerning a possible Transaction between the Parties, the existence of this\nAgreement or anything that might identify Protection One as exploring or having explored a possible Transaction or any similar transaction with any\nparticular party; provided, however, that Recipient may make such disclosure as it determines in good faith and upon the advice of counsel is\nrequired by law or the applicable rules of any national securities exchange or other market or reporting system (in which event Recipient shall use\nreasonable efforts to consult with Protection One as early as possible prior to any such disclosure regarding the nature, timing, extent and form of\nsuch disclosure).\n-2-\n(e) Recipient agrees that, without the prior written consent of Protection One, except as expressly permitted hereunder, Recipient and its\nRepresentatives shall not disclose to any other person (including, without limitation, by issuing a press release or otherwise making any public\nstatement) any of the terms, conditions or other information with respect to the Transaction, including the status thereof; provided, however, that\nRecipient may make such disclosure as it determines in good faith and upon the advice of counsel is required by law or the applicable rules of any\nnational securities exchange or other market or reporting system (in which event Recipient shall use reasonable efforts to consult with Protection\nOne as early as possible prior to any such disclosure regarding the nature, timing, extent and form of such disclosure).\n(f) If Recipient or any of its Representatives are requested or required to disclose any Evaluation Material by interrogatories or requests for\ninformation or other documents in any legal proceeding, subpoena, civil investigative demand or other similar process, to the extent legally\npermissible, Recipient shall provide Protection One with prompt written notice of any such request or requirement so that Protection One has an\nopportunity to seek a protective order or other appropriate remedy or waive compliance with the provisions of this Agreement If Protection One\nwaives compliance with the provisions of this Agreement with respect to a specific request or requirement, Recipient and its Representatives shall\ndisclose only that portion of the Evaluation Material that is covered by such waiver and which is necessary to disclose in order to comply with such\nrequest or requirement. If (in the absence of a waiver by Protection One) Protection One has not secured a protective order or other appropriate\nremedy, and Recipient or one of its Representatives is nonetheless then legally compelled to disclose any Evaluation Material, Recipient or such\nRepresentative may, without liability hereunder, disclose only that portion of the Evaluation Material that is legally compelled to be disclosed.\n(g) If either Party hereto decides that it does not desire to proceed with the Transaction, then it shall promptly notify the other Party. Under\nsuch circumstances, upon the written request of Protection One, Recipient shall promptly destroy or deliver or cause to be delivered to Protection\nOne all Evaluation Material furnished to it or to any of its Representatives, together with all copies of such Evaluation Material (including, without\nlimitation, electronic copies), in the possession or control of Recipient or in the possession or control of any of its Representatives, and an officer of\nRecipient shall certify promptly in writing to Protection One that all such Evaluation Material has been destroyed or returned. Recipient nonetheless\nshall be entitled to retain a copy of all Evaluation Material of the Company in its legal files for use solely in connection with any litigation,\narbitration or like action between the Parties or involving one or both Parties related thereto. Notwithstanding the return, destruction or preservation\nof the Evaluation Material as contemplated by this subsection, Recipient and its Representatives will continue to be bound by the terms of this\nAgreement with respect thereto, including all obligations of confidentiality.\n(h) Nothing herein shall be deemed to limit or restrict Recipient from disclosing any information in any action or proceeding by Recipient to\nenforce any rights that Recipient may have against Protection One under this Agreement.\n3. No Liability, Reliance or Obligation. Each Party hereto understands and acknowledges that the other Party shall not be committed or\nliable in any way with respect to any\n-3-\nTransaction or to any matters discussed or negotiated unless and until a formal written agreement with respect thereto is executed by an authorized\nofficer of each Party, and that neither Party shall have any liability to the other Party in the event that, for any reason whatsoever, no such formal\nwritten agreement is executed, except for any breach of the terms of this Agreement. Neither Party shall have any obligation to commence or\ncontinue discussions or negotiations, to provide or receive any Evaluation Material, to reach or execute any agreement or to refrain from entering\ninto or continuing any discussions, negotiations and/or agreements at any time with any third party, unless and until a formal written agreement is\nexecuted by Protection One and Recipient, and only to the extent provided therein. Except as set forth in any formal written agreement executed by\nProtection One and Recipient, neither Recipient nor any of its Representatives shall be entitled to rely on any statement, promise, agreement or\nunderstanding, whether written or oral, made by Protection One or its Representatives or any custom, usage of trade or course of dealing or conduct\nbetween the Parties or their Representatives. In addition, Recipient understands and acknowledges that, except as may be provided in a written\ndefinitive agreement between the parties, neither Protection One nor any of its Representatives makes any representation or warranty, express or\nimplied, as to the accuracy or completeness of any Evaluation Material, and that neither Protection One nor any of its Representatives shall have any\nliability whatsoever to Recipient or to any of its Representatives relating to or resulting from the Evaluation Material or any errors therein or\nomissions therefrom.\n4. Diligence Process. Recipient shall cause its Representatives not to initiate or maintain contact with any stockholder, director, officer,\nemployee, partner, manager, member, agent, customer, supplier or lender of Protection One with respect to or relating in any way to the Transaction,\nor in which the Transaction is discussed or referred to directly or indirectly, except in accordance with guidelines that are mutually established by the\nParties and as provided in this Section. Recipient hereby agrees to submit or direct to the designee or designees of Protection One all\n(a) communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management or employee\nmeetings or conversations and (d) discussions or questions regarding procedures.\n5. Non-Solicitation and Non-Hire of Employees. Recipient acknowledges that the employees of Protection One are a key component to\nthe success of Protection One and that the preservation of the employee base of Protection One is critical to, among other things, the prospects of\nProtection One. Consequently, Recipient has agreed to the following non-solicitation and non-hire provisions. Recipient agrees that, for a period of\ntwo years from the date hereof, it shall not solicit any individual who is or becomes an employee of Protection One, and who is involved in the\ndiscussions between the Parties with respect to a Transaction or of whom Recipient becomes aware as a result of such discussions, to leave his or her\nemployment with Protection One; provided, however, that this restriction shall not apply to (i) any part-time employee, (ii) any employee who as of\nthe date hereof has already entered into employment discussions with Recipient or contacted Recipient to initiate such discussions, or (iii) any\nemployee who has sought employment with Recipient on his or her own initiative; provided further, that generalized solicitation of employment\nopportunities and generalized employee searches by headhunter/search firms (in either case not focused specifically on or directed in any way at the\nemployees or an employee of Protection One) shall not be deemed to cause a breach of this non-solicitation restriction. Recipient also agrees that, for\na period of two years from the date hereof, it shall not hire or otherwise engage any individual who is or becomes an employee\n-4-\nof Protection One and who is involved in the discussions between the Parties with respect to a Transaction or of whom Recipient becomes aware as a\nresult of such discussions; provided, however, that this restriction shall not apply to (i) any part-time employee, (ii) any employee who as of the date\nhereof has already entered into employment discussions with Recipient or contacted Recipient to initiate such discussions, or (iii) any employee who\nhas sought employment with Recipient on his or her own initiative, including pursuant to the generalized solicitation and searches permitted by this\nSection 5.\n6. Standstill. Recipient hereby agrees that, for a period of two years from the date hereof, Recipient and its Affiliates will not (and\nneither Recipient nor its Affiliates will assist, or provide or arrange financing to or for, others in order to), directly or indirectly, acting alone or in\nconcert with others, unless specifically invited on an unsolicited basis in advance by Protection One: (i) acquire or agree, offer, seek or propose to\nacquire (or request permission to do so) ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange\nAct) of any of the assets (other than in the ordinary course of business) or businesses of Protection One, any securities issued by Protection One, or\nany option or other right to acquire such ownership (including from a third party) or any other economic interest (through derivative securities or\notherwise) in Protection One; (ii) seek or propose to influence or control the management or the policies of Protection One or to obtain\nrepresentation on the board of directors (or any committee thereof) of Protection One, or solicit or participate in the solicitation of any proxies or\nconsents with respect to any securities of Protection One; (iii) seek or propose to have called, or cause to be called, any meeting of stockholders of\nProtection One; (iv) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the\nforegoing; (v) advise, assist, encourage, act as a financing source for or otherwise invest in any other person in connection with any of the foregoing\nactivities; (vi) propose or seek to propose any business combination, recapitalization, restructuring, liquidation, dissolution or other extraordinary\ntransaction with respect to Protection One or any of its subsidiaries; (vii) disclose any intention, plan or arrangement inconsistent with any of the\nforegoing; or (viii) seek to have Protection One amend or waive any provision of this Section 6. Recipient agrees to advise Protection One promptly\nof any inquiry or proposal made to it with respect to any of the foregoing, unless Recipient declines to discuss such inquiry or proposal with the\nparty making it. Recipient further agrees that, during the period referred to in the first sentence of this Section 6, neither it nor any of its Affiliates\nwill, without the written consent of Protection One, take any initiative or other action with respect to Protection One or any of the subsidiaries of\nProtection One that is reasonably likely to require Protection One to make a public announcement regarding (i) such initiative or other action,\n(ii) any of the activities, events or circumstances referred to in the preceding sentences of this Section 6, (iii) the possibility of a Transaction or any\nsimilar transaction between Protection One and any particular party or (iv) the possibility of Recipient or any other person acquiring control of\nProtection One, whether by means of a business combination or otherwise. Recipient represents to Protection One that neither it nor any of its\nAffiliates (other than individuals in their individual accounts and in de minimis amounts) owns (including, but not limited to, beneficial ownership as\ndefined in Rule 13d-3 under the Exchange Act) any securities of Protection One as of the date hereof.\n7. Remedies. Recipient acknowledges and agrees that money damages may not be a sufficient remedy for any breach of this Agreement\nby Recipient or any of its Representatives and that Protection One is entitled to seek equitable relief, including injunction\n-5-\nand specific performance, as a remedy of such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this\nAgreement, but shall be in addition to all other remedies available at law or equity to Protection One. In the event of litigation relating to this\nAgreement, if a court of competent jurisdiction determines that a Party or any of its Representatives has breached this Agreement, or if a Party does\nnot prevail in any such action, such breaching or non-prevailing Party shall be liable for and pay to the other Party on demand promptly following\nthe submission of supporting documents the reasonable and documented legal fees and expenses incurred by the non-breaching or prevailing Party in\nconnection with such litigation, including any appeal therefrom. The restrictions expressed in this Agreement in no way supersede or eliminate any\nrights which Protection One may have pursuant to Federal or state law pertaining to trade secrets or proprietary information and, in the event that\nany such Federal or state law provides greater protections of any Evaluation Material than the protections set forth in this Agreement, such greater\nprotections shall apply to such Evaluation Material.\n8. Indemnification. Recipient agrees to indemnify, defend and hold harmless Protection One from and against any and all losses,\ndamages, liabilities, assessments, costs, charges or claims (including without limitation reasonable and documented attorneys’ fees and costs)\nincurred or suffered by Protection One as a result of or arising out of any unauthorized or improper use or disclosure by Recipient or any of its\nRepresentatives of any Evaluation Material or any breach by Recipient or any of its Representatives of the obligations of Recipient under this\nAgreement. The foregoing indemnification provision is in addition to, and not in derogation of, any statutory, equitable or common law remedy that\nProtection One may have.\n9. Certain Definitions.\n“Affiliate” has the meaning set forth in Rule 12b-2 of the regulations promulgated under the Exchange Act.\n“Exchange Act” means the U.S . Securities Exchange Act of 1934, as amended.\n“Representatives” of a Party means the directors, officers, partners, managers, members, patrons, employees, advisors, agents and other\nrepresentatives of such Party, including attorneys, accountants, actuaries, consultants and financial advisors, debt financing sources but specifically\nexcluding any source of equity financing (unless expressly approved in writing by the other Party).\n10. Affiliates. Notwithstanding anything in this Agreement to the contrary, Protection One agrees that, to the extent Recipient or its\nRepresentatives do not disclose the Evaluation Material, directly or indirectly, to entities controlled or otherwise managed, directly or indirectly, by\nyou, none of the terms of this Agreement shall apply to such entities.\n11. Waivers and Amendments. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as\na waiver thereof, nor shall any single or partial exercise thereof preclude any other exercise thereof or the exercise of any other right, power or\nprivilege hereunder. No alteration, amendment, change or supplement hereto shall be binding or effective unless the same is set forth in writing\nsigned by a duly authorized\n-6-\nrepresentative of each Party. No provision hereof or right hereunder may be waived except by a separate written letter executed by a duly authorized\nrepresentative of the waiving Party, which writing expressly waives an identified portion of this Agreement.\n12. Notices. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this\nAgreement shall be in writing and shall be deemed to have been given when delivered personally to the recipient, two business days after being sent\nto the recipient by reputable intercontinental courier service (charges prepaid) or five business days after being mailed to the recipient by certified or\nregistered mail, return receipt requested and postage prepaid. Such notices, demands and other communications shall be sent to each Party at the\naddress indicated on the signature page to this Agreement or to such other address or to the attention of such other person as the recipient Party has\nspecified by prior written notice to the sending Party.\n13. Choice of Law/Consent to Jurisdiction. The validity, interpretation, performance and enforcement of this Agreement shall be\ngoverned by the laws of the State of Delaware without regard to the conflicts of laws principles thereof. Each Party hereby irrevocably and\nunconditionally consents to the exclusive jurisdiction of the U.S. federal and state courts in the City of Wilmington, Delaware for any action, suit or\nproceeding arising out of or related hereto. Each Party hereto further hereby irrevocably and unconditionally waives any objection to the laying of\nvenue of any action, suit or proceeding arising out of or relating to this Agreement in the U.S . federal and state courts of the City of Wilmington,\nDelaware and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or\nproceeding brought in any such court has been brought in an inconvenient forum.\n14. Severability. If any provision or portion of this Agreement should be determined by any court or agency of competent jurisdiction to\nbe invalid, illegal or unreasonable, in whole or in part in any jurisdiction, and such determination should become final, such provision or portion\nshall be deemed to be severed in such jurisdiction, but only to the extent required to render the remaining provisions and portions of this Agreement\nenforceable, and this Agreement as thus amended shall be enforced in such jurisdiction to give effect to the intention of the Parties insofar as that is\npossible, and further, the Agreement shall continue without amendment in full force and effect in all other jurisdictions. In the event of any such\ndetermination, the Parties shall negotiate in good faith to modify this Agreement to fulfill as closely as possible the original intents and purposes\nhereof.\n15. Insider Trading. Recipient acknowledges that Protection One is an issuer with securities registered pursuant to the Exchange Act\nand that the disclosure of nonpublic information regarding Protection One or any of its subsidiaries by Recipient or trading in the securities of\nProtection One by Recipient while in the possession of such information may, depending on the facts and circumstances, subject Recipient to\nliability under certain U.S . securities laws.\n16. Construction. For purposes of Section 1 through and including Section 7 hereof, reference to Recipient shall also include the\nsubsidiaries and Affiliates of Recipient, and Recipient will be responsible for any breach of the provisions of this Agreement by its\n-7-\nsubsidiaries and Affiliates and any other person to whom Recipient (or its Representatives) provides any Evaluation Material. The term “person” as\nused in this Agreement shall be interpreted broadly to include the media and any corporation, group, individual or other entity. The word “including”\n(and all variations) shall mean including without limitation. The Parties have participated jointly in the negotiation and drafting of this Agreement. In\nthe event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no\npresumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.\nAny reference to any U.S . federal, state, local or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated\nthereunder, unless the context requires otherwise.\n17. Counterparts. For the convenience of the Parties, any number of counterparts of this Agreement may be executed by the Parties\nhereto. Each such counterpart shall be, and shall be deemed to be, an original instrument, but all such counterparts taken together shall constitute one\nand the same Agreement. A facsimile or .pdf or similar electronic copy of this Agreement or any signatures hereon shall be considered as originals\nfor all purposes.\n18. Successors and Assigns. The benefits of this Agreement shall inure to the respective successors and assigns of the Parties hereto,\nand the obligations and liabilities assumed in this Agreement by the Parties hereto shall be binding upon their respective successors and assigns.\n19. Headings. The headings to the Sections and subsections contained herein are for identification purposes only and are not to be\nconstrued as part of this Agreement.\n20. Entire Agreement. This Agreement embodies the entire agreement and understanding of the Parties hereto and supersedes any and\nall prior agreements, arrangements and understandings, written or oral, relating to the matters provided for herein, including the Confidentiality\nAgreement dated July 15, 2008 between Protection One, Inc. and GTCR Golder Rauner, LLC.\n21. Term. Unless a shorter period of time is specified elsewhere in this Agreement, all obligations of the Parties shall continue until the\nthird anniversary of the date hereof.\n[Signature Page Follows]\n-8-\nIN WITNESS WHEREOF, the Parties hereto have executed or caused this Confidentiality Agreement to be executed by their duly\nauthorized officers as of the day and year first written above.\nPROTECTION ONE, INC.\nBy:\n/s/ Eric Griffin\nName:\nERIC GRIFFIN\nTitle:\nVICE PRESIDENT\nAddress:\n1035 N. Third Street, Suite 101\nLawrence, Kansas 66044\nAttention: Darius G. Nevin\nFacsimile: 785.856.9950\nGTCR GOLDER RAUNER II, LLC\nBy:\n/s/ Christian McGrath\nName:\nChristian McGrath\nTitle:\nGeneral Counsel\nAddress:\n300 N. LaSalle Street\nSuite 5600\nChicago, IL 60654\nAttention: General Counsel\nFacsimile: 312.382.2201\n-9-	EX-99.(E)(6) 3 dex99e6.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(6)\nCONFIDENTIALITY AGREEMENT\nThis CONFIDENTIALITY AGREEMENT (this “Agreement”), dated as of January 25, 2010, is by and between Protection One, Inc.\n(“Protection One”) and GTCR Golden Rauner 11, LLC (“Recipient”). Protection One and Recipient are sometimes collectively referred to herein as\nthe “Parties” and individually as a “Party.” Certain capitalized terms used herein have the meanings set forth in Section 9.\nWHEREAS, Recipient desires that Protection One provide certain information in order to enable Recipient to evaluate the possibility of\nengaging in a strategic transaction (the “Transaction”);\nWHEREAS, during the course of any discussions or negotiations regarding the Transaction, Protection One will from time to time\nprovide Recipient with confidential information;\nWHEREAS, Recipient acknowledges and agrees that the confidential information provided by Protection One, before or after the\nexecution of this Agreement, is proprietary and highly confidential and that the unauthorized disclosure of such confidential information would\nresult in substantial and irreparable harm to Protection One, which harm would be extremely difficult to quantify; and\nWHEREAS, Protection One desires to preserve its employee base, business operations and capital structure free from the disruption that\ncould arise from the misuse of such confidential information.\nNOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and adequacy of\nwhich are hereby acknowledged, the Parties hereto expressly agree as follows:\n1. Evaluation Material. The term “Evaluation Material” means any and all information, in any form or medium, written or oral,\nconcerning or relating to Protection One (whether prepared by Protection One, its Representatives or otherwise, and irrespective of the form or\nmeans of communication and whether it is labeled or otherwise identified as confidential) that is furnished to or on behalf of Recipient by or on\nbehalf of Protection One, including without limitation all oral and written information relating to financial statements, projections, evaluations,\nplans, programs, customers, suppliers, facilities, equipment and other assets, products, processes, manufacturing, marketing, research and\ndevelopment, trade secrets, know-how, patent applications that have not been published, technology and any other confidential information or\nintellectual property of Protection One. In addition, “Evaluation Material” shall be deemed to include all notes, analyses, studies, interpretations,\nmemoranda and other documents, materials or reports (in any form or medium) prepared by Recipient or any of its Representatives that contain,\nreflect or are based upon, in whole or part, the information furnished to or on behalf of Recipient as contemplated hereby. The term “Evaluation\nMaterial” shall not include information that: (a) is or becomes available to the public generally, other than as a result of disclosure by Recipient or\none of its Representatives in breach of the terms of this\nAgreement; (b) becomes available to Recipient from a source other than Protection One or one of its Representatives, including without limitation\nprior to the date hereof, provided that such source is not known by the Recipient after reasonable inquiry to be bound by a confidentiality agreement\nor to have a contractual, legal or fiduciary obligation of confidentiality to Protection One or any other person with respect to such information; or\n(c) has been independently acquired or developed by Recipient without using any Evaluation Material or violating any of its obligations under this\nAgreement.\n2. Use of Evaluation Material and Confidentiality.\n(a) The Recipient agrees that it and its Representatives shall use the Evaluation Material solely for the purpose of evaluating and negotiating\nthe possible Transaction, that neither Recipient nor any of its Representatives will use any of the Evaluation Material in any way that could be\n(directly or indirectly) detrimental to Protection One, and that the Evaluation Material will be kept confidential and that neither Recipient nor any of\nits Representatives will disclose any Evaluation Material in any manner whatsoever; provided, however, that Recipient may disclose Evaluation\nMaterial as follows: (i) to such of its Representatives who need such information for the purpose of evaluating and negotiating the possible\nTransaction, it being understood that such Representatives shall be informed in advance by Recipient of the confidential nature of such information;\n(ii) as expressly contemplated by this Agreement; and (iii) in all other cases, only if and to the extent that Protection One gives its prior written\nconsent to such disclosure.\n(b) As a condition to the furnishing of Evaluation Material to the Representatives of Recipient, Recipient shall cause its Representatives to\ntreat such information in accordance with the provisions of this Agreement and to perform or to comply with the obligations of Recipient with\nrespect to the Evaluation Material as contemplated hereby. Recipient agrees that it will be fully responsible for any breach of any of the provisions of\nthis Agreement by its Representatives.\n(c) Recipient agrees to take all reasonable steps to keep the Evaluation Material and any copies thereof secure and in such a way so as to\nprevent unauthorized access by any third party.\n(d) Recipient agrees that, without the prior written consent of Protection One, except as expressly permitted hereunder, Recipient and its\nRepresentatives shall not disclose to any person, prior to the time of public announcement by Protection One and Recipient of a definitive agreement\nbetween Recipient and Protection One with respect to a Transaction, the fact that the Evaluation Material has been made available to it/them, the fact\nthat discussions or negotiations are taking place or have taken place concerning a possible Transaction between the Parties, the existence of this\nAgreement or anything that might identify Protection One as exploring or having explored a possible Transaction or any similar transaction with any\nparticular party; provided, however, that Recipient may make such disclosure as it determines in good faith and upon the advice of counsel is\nrequired by law or the applicable rules of any national securities exchange or other market or reporting system (in which event Recipient shall use\nreasonable efforts to consult with Protection One as early as possible prior to any such disclosure regarding the nature, timing, extent and form of\nsuch disclosure).\n_2-\n(e) Recipient agrees that, without the prior written consent of Protection One, except as expressly permitted hereunder, Recipient and its\nRepresentatives shall not disclose to any other person (including, without limitation, by issuing a press release or otherwise making any public\nstatement) any of the terms, conditions or other information with respect to the Transaction, including the status thereof; provided, however, that\nRecipient may make such disclosure as it determines in good faith and upon the advice of counsel is required by law or the applicable rules of any\nnational securities exchange or other market or reporting system (in which event Recipient shall use reasonable efforts to consult with Protection\nOne as early as possible prior to any such disclosure regarding the nature, timing, extent and form of such disclosure).\n(f) If Recipient or any of its Representatives are requested or required to disclose any Evaluation Material by interrogatories or requests for\ninformation or other documents in any legal proceeding, subpoena, civil investigative demand or other similar process, to the extent legally\npermissible, Recipient shall provide Protection One with prompt written notice of any such request or requirement so that Protection One has an\nopportunity to seek a protective order or other appropriate remedy or waive compliance with the provisions of this Agreement If Protection One\nwaives compliance with the provisions of this Agreement with respect to a specific request or requirement, Recipient and its Representatives shall\ndisclose only that portion of the Evaluation Material that is covered by such waiver and which is necessary to disclose in order to comply with such\nrequest or requirement. If (in the absence of a waiver by Protection One) Protection One has not secured a protective order or other appropriate\nremedy, and Recipient or one of its Representatives is nonetheless then legally compelled to disclose any Evaluation Material, Recipient or such\nRepresentative may, without liability hereunder, disclose only that portion of the Evaluation Material that is legally compelled to be disclosed.\n(g) If either Party hereto decides that it does not desire to proceed with the Transaction, then it shall promptly notify the other Party. Under\nsuch circumstances, upon the written request of Protection One, Recipient shall promptly destroy or deliver or cause to be delivered to Protection\nOne all Evaluation Material furnished to it or to any of its Representatives, together with all copies of such Evaluation Material (including, without\nlimitation, electronic copies), in the possession or control of Recipient or in the possession or control of any of its Representatives, and an officer of\nRecipient shall certify promptly in writing to Protection One that all such Evaluation Material has been destroyed or returned. Recipient nonetheless\nshall be entitled to retain a copy of all Evaluation Material of the Company in its legal files for use solely in connection with any litigation,\narbitration or like action between the Parties or involving one or both Parties related thereto. Notwithstanding the return, destruction or preservation\nof the Evaluation Material as contemplated by this subsection, Recipient and its Representatives will continue to be bound by the terms of this\nAgreement with respect thereto, including all obligations of confidentiality.\n(h) Nothing herein shall be deemed to limit or restrict Recipient from disclosing any information in any action or proceeding by Recipient to\nenforce any rights that Recipient may have against Protection One under this Agreement.\n3. No Liability, Reliance or Obligation. Each Party hereto understands and acknowledges that the other Party shall not be committed or\nliable in any way with respect to any\n_3-\nTransaction or to any matters discussed or negotiated unless and until a formal written agreement with respect thereto is executed by an authorized\nofficer of each Party, and that neither Party shall have any liability to the other Party in the event that, for any reason whatsoever, no such formal\nwritten agreement is executed, except for any breach of the terms of this Agreement. Neither Party shall have any obligation to commence or\ncontinue discussions or negotiations, to provide or receive any Evaluation Material, to reach or execute any agreement or to refrain from entering\ninto or continuing any discussions, negotiations and/or agreements at any time with any third party, unless and until a formal written agreement is\nexecuted by Protection One and Recipient, and only to the extent provided therein. Except as set forth in any formal written agreement executed by\nProtection One and Recipient, neither Recipient nor any of its Representatives shall be entitled to rely on any statement, promise, agreement or\nunderstanding, whether written or oral, made by Protection One or its Representatives or any custom, usage of trade or course of dealing or conduct\nbetween the Parties or their Representatives. In addition, Recipient understands and acknowledges that, except as may be provided in a written\ndefinitive agreement between the parties, neither Protection One nor any of its Representatives makes any representation or warranty, express or\nimplied, as to the accuracy or completeness of any Evaluation Material, and that neither Protection One nor any of its Representatives shall have any\nliability whatsoever to Recipient or to any of its Representatives relating to or resulting from the Evaluation Material or any errors therein or\nomissions therefrom.\n4. Diligence Process. Recipient shall cause its Representatives not to initiate or maintain contact with any stockholder, director, officer,\nemployee, partner, manager, member, agent, customer, supplier or lender of Protection One with respect to or relating in any way to the Transaction,\nor in which the Transaction is discussed or referred to directly or indirectly, except in accordance with guidelines that are mutually established by the\nParties and as provided in this Section. Recipient hereby agrees to submit or direct to the designee or designees of Protection One all\n(a) communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management or employee\nmeetings or conversations and (d) discussions or questions regarding procedures.\n5. Non-Solicitation and Non-Hire of Employees. Recipient acknowledges that the employees of Protection One are a key component to\nthe success of Protection One and that the preservation of the employee base of Protection One is critical to, among other things, the prospects of\nProtection One. Consequently, Recipient has agreed to the following non-solicitation and non-hire provisions. Recipient agrees that, for a period of\ntwo years from the date hereof, it shall not solicit any individual who is or becomes an employee of Protection One, and who is involved in the\ndiscussions between the Parties with respect to a Transaction or of whom Recipient becomes aware as a result of such discussions, to leave his or her\nemployment with Protection One; provided, however, that this restriction shall not apply to (i) any part-time employee, (ii) any employee who as of\nthe date hereof has already entered into employment discussions with Recipient or contacted Recipient to initiate such discussions, or (iii) any\nemployee who has sought employment with Recipient on his or her own initiative; provided further, that generalized solicitation of employment\nopportunities and generalized employee searches by headhunter/search firms (in either case not focused specifically on or directed in any way at the\nemployees or an employee of Protection One) shall not be deemed to cause a breach of this non-solicitation restriction. Recipient also agrees that, for\na period of two years from the date hereof, it shall not hire or otherwise engage any individual who is or becomes an employee\n \n \n \n_4-\nof Protection One and who is involved in the discussions between the Parties with respect to a Transaction or of whom Recipient becomes aware as a\nresult of such discussions; provided, however, that this restriction shall not apply to (i) any part-time employee, (ii) any employee who as of the date\nhereof has already entered into employment discussions with Recipient or contacted Recipient to initiate such discussions, or (iii) any employee who\nhas sought employment with Recipient on his or her own initiative, including pursuant to the generalized solicitation and searches permitted by this\nSection 5.\n6. Standstill. Recipient hereby agrees that, for a period of two years from the date hereof, Recipient and its Affiliates will not (and\nneither Recipient nor its Affiliates will assist, or provide or arrange financing to or for, others in order to), directly or indirectly, acting alone or in\nconcert with others, unless specifically invited on an unsolicited basis in advance by Protection One: (i) acquire or agree, offer, seek or propose to\nacquire (or request permission to do so) ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange\nAct) of any of the assets (other than in the ordinary course of business) or businesses of Protection One, any securities issued by Protection One, or\nany option or other right to acquire such ownership (including from a third party) or any other economic interest (through derivative securities or\notherwise) in Protection One; (ii) seek or propose to influence or control the management or the policies of Protection One or to obtain\nrepresentation on the board of directors (or any committee thereof) of Protection One, or solicit or participate in the solicitation of any proxies or\nconsents with respect to any securities of Protection One; (iii) seek or propose to have called, or cause to be called, any meeting of stockholders of\nProtection One; (iv) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the\nforegoing; (v) advise, assist, encourage, act as a financing source for or otherwise invest in any other person in connection with any of the foregoing\nactivities; (vi) propose or seek to propose any business combination, recapitalization, restructuring, liquidation, dissolution or other extraordinary\ntransaction with respect to Protection One or any of its subsidiaries; (vii) disclose any intention, plan or arrangement inconsistent with any of the\nforegoing; or (viii) seek to have Protection One amend or waive any provision of this Section 6. Recipient agrees to advise Protection One promptly\nof any inquiry or proposal made to it with respect to any of the foregoing, unless Recipient declines to discuss such inquiry or proposal with the\nparty making it. Recipient further agrees that, during the period referred to in the first sentence of this Section 6, neither it nor any of its Affiliates\nwill, without the written consent of Protection One, take any initiative or other action with respect to Protection One or any of the subsidiaries of\nProtection One that is reasonably likely to require Protection One to make a public announcement regarding (i) such initiative or other action,\n(ii) any of the activities, events or circumstances referred to in the preceding sentences of this Section 6, (iii) the possibility of a Transaction or any\nsimilar transaction between Protection One and any particular party or (iv) the possibility of Recipient or any other person acquiring control of\nProtection One, whether by means of a business combination or otherwise. Recipient represents to Protection One that neither it nor any of its\nAffiliates (other than individuals in their individual accounts and in de minimis amounts) owns (including, but not limited to, beneficial ownership as\ndefined in Rule 13d-3 under the Exchange Act) any securities of Protection One as of the date hereof.\n7. Remedies. Recipient acknowledges and agrees that money damages may not be a sufficient remedy for any breach of this Agreement\nby Recipient or any of its Representatives and that Protection One is entitled to seek equitable relief, including injunction\n_5.\nand specific performance, as a remedy of such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this\nAgreement, but shall be in addition to all other remedies available at law or equity to Protection One. In the event of litigation relating to this\nAgreement, if a court of competent jurisdiction determines that a Party or any of its Representatives has breached this Agreement, or if a Party does\nnot prevail in any such action, such breaching or non-prevailing Party shall be liable for and pay to the other Party on demand promptly following\nthe submission of supporting documents the reasonable and documented legal fees and expenses incurred by the non-breaching or prevailing Party in\nconnection with such litigation, including any appeal therefrom. The restrictions expressed in this Agreement in no way supersede or eliminate any\nrights which Protection One may have pursuant to Federal or state law pertaining to trade secrets or proprietary information and, in the event that\nany such Federal or state law provides greater protections of any Evaluation Material than the protections set forth in this Agreement, such greater\nprotections shall apply to such Evaluation Material.\n8. Indemnification. Recipient agrees to indemnify, defend and hold harmless Protection One from and against any and all losses,\ndamages, liabilities, assessments, costs, charges or claims (including without limitation reasonable and documented attorneys’ fees and costs)\nincurred or suffered by Protection One as a result of or arising out of any unauthorized or improper use or disclosure by Recipient or any of its\nRepresentatives of any Evaluation Material or any breach by Recipient or any of its Representatives of the obligations of Recipient under this\nAgreement. The foregoing indemnification provision is in addition to, and not in derogation of, any statutory, equitable or common law remedy that\nProtection One may have.\n9. Certain Definitions.\n“Affiliate” has the meaning set forth in Rule 12b-2 of the regulations promulgated under the Exchange Act.\n“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.\n“Representatives” of a Party means the directors, officers, partners, managers, members, patrons, employees, advisors, agents and other\nrepresentatives of such Party, including attorneys, accountants, actuaries, consultants and financial advisors, debt financing sources but specifically\nexcluding any source of equity financing (unless expressly approved in writing by the other Party).\n10. Affiliates. Notwithstanding anything in this Agreement to the contrary, Protection One agrees that, to the extent Recipient or its\nRepresentatives do not disclose the Evaluation Material, directly or indirectly, to entities controlled or otherwise managed, directly or indirectly, by\nyou, none of the terms of this Agreement shall apply to such entities.\n11. Waivers and Amendments. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as\na waiver thereof, nor shall any single or partial exercise thereof preclude any other exercise thereof or the exercise of any other right, power or\nprivilege hereunder. No alteration, amendment, change or supplement hereto shall be binding or effective unless the same is set forth in writing\nsigned by a duly authorized\n-6-\nrepresentative of each Party. No provision hereof or right hereunder may be waived except by a separate written letter executed by a duly authorized\nrepresentative of the waiving Party, which writing expressly waives an identified portion of this Agreement.\n12. Notices. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this\nAgreement shall be in writing and shall be deemed to have been given when delivered personally to the recipient, two business days after being sent\nto the recipient by reputable intercontinental courier service (charges prepaid) or five business days after being mailed to the recipient by certified or\nregistered mail, return receipt requested and postage prepaid. Such notices, demands and other communications shall be sent to each Party at the\naddress indicated on the signature page to this Agreement or to such other address or to the attention of such other person as the recipient Party has\nspecified by prior written notice to the sending Party.\n13. Choice of Law/Consent to Jurisdiction. The validity, interpretation, performance and enforcement of this Agreement shall be\ngoverned by the laws of the State of Delaware without regard to the conflicts of laws principles thereof. Each Party hereby irrevocably and\nunconditionally consents to the exclusive jurisdiction of the U.S. federal and state courts in the City of Wilmington, Delaware for any action, suit or\nproceeding arising out of or related hereto. Each Party hereto further hereby irrevocably and unconditionally waives any objection to the laying of\nvenue of any action, suit or proceeding arising out of or relating to this Agreement in the U.S. federal and state courts of the City of Wilmington,\nDelaware and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or\nproceeding brought in any such court has been brought in an inconvenient forum.\n14. Severability. If any provision or portion of this Agreement should be determined by any court or agency of competent jurisdiction to\nbe invalid, illegal or unreasonable, in whole or in part in any jurisdiction, and such determination should become final, such provision or portion\nshall be deemed to be severed in such jurisdiction, but only to the extent required to render the remaining provisions and portions of this Agreement\nenforceable, and this Agreement as thus amended shall be enforced in such jurisdiction to give effect to the intention of the Parties insofar as that is\npossible, and further, the Agreement shall continue without amendment in full force and effect in all other jurisdictions. In the event of any such\ndetermination, the Parties shall negotiate in good faith to modify this Agreement to fulfill as closely as possible the original intents and purposes\nhereof.\n15. Insider Trading. Recipient acknowledges that Protection One is an issuer with securities registered pursuant to the Exchange Act\nand that the disclosure of nonpublic information regarding Protection One or any of its subsidiaries by Recipient or trading in the securities of\nProtection One by Recipient while in the possession of such information may, depending on the facts and circumstances, subject Recipient to\nliability under certain U.S. securities laws.\n16. Construction. For purposes of Section 1 through and including Section 7 hereof, reference to Recipient shall also include the\nsubsidiaries and Affiliates of Recipient, and Recipient will be responsible for any breach of the provisions of this Agreement by its\n_7-\nsubsidiaries and Affiliates and any other person to whom Recipient (or its Representatives) provides any Evaluation Material. The term “person” as\nused in this Agreement shall be interpreted broadly to include the media and any corporation, group, individual or other entity. The word “including”\n(and all variations) shall mean including without limitation. The Parties have participated jointly in the negotiation and drafting of this Agreement. In\nthe event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no\npresumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.\nAny reference to any U.S. federal, state, local or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated\nthereunder, unless the context requires otherwise.\n17. Counterparts. For the convenience of the Parties, any number of counterparts of this Agreement may be executed by the Parties\nhereto. Each such counterpart shall be, and shall be deemed to be, an original instrument, but all such counterparts taken together shall constitute one\nand the same Agreement. A facsimile or .pdf or similar electronic copy of this Agreement or any signatures hereon shall be considered as originals\nfor all purposes.\n18. Successors and Assigns. The benefits of this Agreement shall inure to the respective successors and assigns of the Parties hereto,\nand the obligations and liabilities assumed in this Agreement by the Parties hereto shall be binding upon their respective successors and assigns.\n19. Headings. The headings to the Sections and subsections contained herein are for identification purposes only and are not to be\nconstrued as part of this Agreement.\n20. Entire Agreement. This Agreement embodies the entire agreement and understanding of the Parties hereto and supersedes any and\nall prior agreements, arrangements and understandings, written or oral, relating to the matters provided for herein, including the Confidentiality\nAgreement dated July 15, 2008 between Protection One, Inc. and GTCR Golder Rauner, LLC.\n21. Term. Unless a shorter period of time is specified elsewhere in this Agreement, all obligations of the Parties shall continue until the\nthird anniversary of the date hereof.\n[Signature Page Follows]\n-8-\nIN WITNESS WHEREOF, the Parties hereto have executed or caused this Confidentiality Agreement to be executed by their duly authorized officers as of the day and year first written above.\nPROTECTION ONE, INC.\nBy: /s/ Eric Griffin\nName: ERIC GRIFFIN\nTitle: VICE PRESIDENT\nAddress:\n1035 N. Third Street, Suite 101\nLawrence, Kansas 66044\nAttention: Darius G. Nevin\nFacsimile: 785.856.9950\nGTCR GOLDER RAUNERII, LLC\nBy: /s/ Christian McGrath\nName: Christian McGrath\nTitle: General Counsel\nAddress:\n300 N. LaSalle Street\nSuite 5600\nChicago, IL 60654\nAttention: General Counsel\nFacsimile: 312.382.2201	X-99.(E)(6) 3 dex99e6.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(6)\nCONFIDENTIALITY AGREEMENT\nThis CONFIDENTIALITY AGREEMENT (this "Agreement"), dated as of January 25, 2010, is by and between Protection One, Inc.\n("Protection One") and GTCR Golden Rauner II, LLC ("Recipient"). Protection One and Recipient are sometimes collectively referred to herein as\nthe "Parties" and individually as a "Party.." Certain capitalized terms used herein have the meanings set forth in Section 9.\nWITNESSETH\nWHEREAS, Recipient desires that Protection One provide certain information in order to enable Recipient to evaluate the possibility of\nengaging in a strategic transaction (the "Transaction");\nWHEREAS, during the course of any discussions or negotiations regarding the Transaction, Protection One will from time to time\nprovide Recipient with confidential information;\nWHEREAS, Recipient acknowledges and agrees that the confidential information provided by Protection One, before or after the\nexecution of this Agreement, is proprietary and highly confidential and that the unauthorized disclosure of such confidential information would\nresult in substantial and irreparable harm to Protection One, which harm would be extremely difficult to quantify; and\nWHEREAS, Protection One desires to preserve its employee base, business operations and capital structure free from the disruption\nthat\ncould arise from the misuse of such confidential information.\nNOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and adequacy of\nwhich are hereby acknowledged, the Parties hereto expressly agree as follows:\n1. Evaluation Material. The term "Evaluation Material" means any and all information, in any form or medium, written or oral,\nconcerning or relating to Protection One (whether prepared by Protection One, its Representatives or otherwise, and irrespective of the form or\nmeans of communication and whether it is labeled or otherwise identified as confidential) that is furnished to or on behalf of Recipient by or on\nbehalf of Protection One, including without limitation all oral and written information relating to financial statements, projections, evaluations,\nplans, programs, customers, suppliers, facilities, equipment and other assets, products, processes, manufacturing, marketing, research and\ndevelopment, trade secrets, know-how, patent applications that have not been published, technology and any other confidential information or\nintellectual property of Protection One. In addition, "Evaluation Material" shall be deemed to include all notes, analyses, studies, interpretations,\nmemoranda and other documents, materials or reports (in any form or medium) prepared by Recipient or any of its Representatives that contain,\nreflect\nor\nare based upon, in whole or part, the information furnished to or on behalf of Recipient as contemplated hereby. The term "Evaluation\nMaterial" shall not include information that: (a) is or becomes available to the public generally, other than as a result of disclosure by Recipient or\none of its Representatives in breach of the terms of this\nAgreement; (b) becomes available to Recipient from a source other than Protection One or one of its Representatives, including without limitation\nprior to the date hereof, provided that such source is not known by the Recipient after reasonable inquiry to be bound by a confidentiality agreement\nor\nto have a contractual, legal or fiduciary obligation of confidentiality to Protection One or any other person with respect to such information; or\n(c) has been independently acquired or developed by Recipient without using any Evaluation Material or violating any of its obligations under this\nAgreement.\n2. Use of Evaluation Material and Confidentiality..\n(a) The Recipient agrees that it and its Representatives shall use the Evaluation Material solely for the purpose of evaluating and negotiating\nthe possible Transaction, that neither Recipient nor any of its Representatives will use any of the Evaluation Material in any way that could be\n(directly or indirectly) detrimental to Protection One, and that the Evaluation Material will be kept confidential and that neither Recipient nor any\nof\nits Representatives will disclose any Evaluation Material in any manner whatsoever; provided, however, that Recipient may disclose Evaluation\nMaterial as follows: (i) to such of its Representatives who need such information for the purpose of evaluating and negotiating the possible\nTransaction, it being understood that such Representatives shall be informed in advance by Recipient of the confidential nature of such information;\n(ii) as expressly contemplated by this Agreement; and (iii) in all other cases, only if and to the extent that Protection One gives its prior written\nconsent to such disclosure.\n(b) As a condition to the furnishing of Evaluation Material to the Representatives of Recipient, Recipient shall cause its Representatives to\ntreat such information in accordance with the provisions of this Agreement and to perform or to comply with the obligations of Recipient with\nrespect to the Evaluation Material as contemplated hereby. Recipient agrees that it will be fully responsible for any breach of any of the provisions\nof\nthis Agreement by its Representatives.\n(c) Recipient agrees to take all reasonable steps to keep the Evaluation Material and any copies thereof secure and in such a way so as to\nprevent unauthorized access by any third party.\n(d) Recipient agrees that, without the prior written consent of Protection One, except as expressly permitted hereunder, Recipient and its\nRepresentatives shall not disclose to any person, prior to the time of public announcement by Protection One and Recipient of a definitive agreement\nbetween Recipient and Protection One with respect to a Transaction, the fact that the Evaluation Materia has been made available to it/them, the\nfact\nthat discussions or negotiations are taking place or have taken place concerning a possible Transaction between the Parties, the existence of this\nAgreement or anything that might identify Protection One as exploring or having explored a possible Transaction or any similar transaction with any\nparticular party; provided, however, that Recipient may make such disclosure as it determines in good faith and upon the advice of counsel is\nrequired by law or the applicable rules of any national securities exchange or other market or reporting system (in which event Recipient shall use\nreasonable efforts to consult with Protection One as early as possible prior to any such disclosure regarding the nature, timing, extent and form of\nsuch disclosure).\n2\n(e) Recipient agrees that, without the prior written consent of Protection One, except as expressly permitted hereunder, Recipient and its\nRepresentatives shall not disclose to any other person (including, without limitation, by issuing a press release or otherwise making any public\nstatement) any of the terms, conditions or other information with respect to the Transaction, including the status thereof; provided, however,\nthat\nRecipient may make such disclosure as it determines in good faith and upon the advice of counsel is required by law or the applicable rules of any\nnational securities exchange or other market or reporting system (in which event Recipient shall use reasonable efforts to consult with Protection\nOne as early as possible prior to any such disclosure regarding the nature, timing, extent and form of such disclosure).\n(f) If Recipient or any of its Representatives are requested or required to disclose any Evaluation Material by interrogatories or requests for\ninformation or other documents in any legal proceeding, subpoena, civil investigative demand or other similar process, to the extent legally\npermissible, Recipient shall provide Protection One with prompt written notice of any such request or requirement so that Protection One has an\nopportunity to seek a protective order or other appropriate remedy or waive compliance with the provisions of this Agreement If Protection One\nwaives compliance with the provisions of this Agreement with respect to a specific request or requirement, Recipient and its Representatives shall\ndisclose only that portion of the Evaluation Material that is covered by such waiver and which is necessary to disclose in order to comply with such\nrequest or requirement. If (in the absence of a waiver by Protection One) Protection One has not secured a protective order or other appropriate\nremedy, and Recipient or one of its Representatives is nonetheless then legally compelled to disclose any Evaluation Material, Recipient or such\nRepresentative may, without liability hereunder, disclose only that portion of the Evaluation Material that is legally compelled to be disclosed.\n(g) If either Party hereto decides that it does not desire to proceed with the Transaction, then it shall promptly notify the other Party. Under\nsuch circumstances, upon the written request of Protection One, Recipient shall promptly destroy or deliver or cause to be delivered to Protection\nOne all Evaluation Material furnished to it or to any of its Representatives, together with all copies of such Evaluation Material (including, without\nlimitation, electronic copies), in the possession or control of Recipient or in the possession or control of any of its Representatives, and an officer\nof\nRecipient shall certify promptly in writing to Protection One that all such Evaluation Material has been destroyed or returned. Recipient nonetheless\nshall be entitled to retain a copy of all Evaluation Material of the Company in its legal files for use solely in connection with any litigation,\narbitration or like action between the Parties or involving one or both Parties related thereto. Notwithstanding the return, destruction or preservation\nof the Evaluation Material as contemplated by this subsection, Recipient and its Representatives will continue to be bound by the terms of this\nAgreement with respect thereto, including all obligations of confidentiality.\n(h) Nothing herein shall be deemed to limit or restrict Recipient from disclosing any information in any action or proceeding by Recipient to\nenforce any rights that Recipient may have against Protection One under this Agreement.\n3. No Liability, Reliance or Obligation. Each Party hereto understands and acknowledges that the other Party shall not be committed or\nliable in any way with respect to any\n3\nTransaction or to any matters discussed or negotiated unless and until a formal written agreement with respect thereto is executed by an authorized\nofficer of each Party, and that neither Party shall have any liability to the other Party in the event that, for any reason whatsoever, no such formal\nwritten agreement is executed, except for any breach of the terms of this Agreement. Neither Party shall have any obligation to commence or\ncontinue discussions or negotiations, to provide or receive any Evaluation Material, to reach or execute any agreement or to refrain from entering\ninto or continuing any discussions, negotiations and/or agreements at any time with any third party, unless and until a formal written agreement is\nexecuted by Protection One and Recipient, and only to the extent provided therein. Except as set forth in any formal written agreement executed by\nProtection One and Recipient, neither Recipient nor any of its Representatives shall be entitled to rely on any statement, promise, agreement or\nunderstanding, whether written or oral, made by Protection One or its Representatives or any custom, usage of trade or course of dealing or conduct\nbetween the Parties or their Representatives. In addition, Recipient understands and acknowledges that, except as may be provided in a written\ndefinitive agreement between the parties, neither Protection One nor any of its Representatives makes any representation or warranty, express or\nimplied, as to the accuracy or completeness of any Evaluation Material, and that neither Protection One nor any of its Representatives shall have any\nliability whatsoever to Recipient or to any of its Representatives relating to or resulting from the Evaluation Material or any errors therein\nor\nomissions therefrom.\n4. Diligence Process. Recipient shall cause its Representatives not to initiate or maintain contact with any stockholder, director, officer,\nemployee, partner, manager, member, agent, customer, supplier or lender of Protection One with respect to or relating in any way to the Transaction,\nor in which the Transaction is discussed or referred to directly or indirectly, except in accordance with guidelines that are mutually established by the\nParties and as provided in this Section. Recipient hereby agrees to submit or direct to the designee or designees of Protection One all\n(a) communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management or employee\nmeetings or conversations and (d) discussions or questions regarding procedures.\n5. Non-Solicitation and Non-Hire of Employees. Recipient acknowledges that the employees of Protection One are a key component to\nthe success of Protection One and that the preservation of the employee base of Protection One is critical to, among other things, the prospects of\nProtection One. Consequently, Recipient has agreed to the following non-solicitation and non-hire provisions. Recipient agrees that, for a period of\ntwo years from the date hereof, it shall not solicit any individual who is or becomes an employee of Protection One, and who is involved in the\ndiscussions between the Parties with respect to a Transaction or of whom Recipient becomes aware as a result of such discussions, to leave his or her\nemployment with Protection One; provided, however, that this restriction shall not apply to (i) any part-time employee, (ii) any employee who as\nof\nthe date hereof has already entered into employment discussions with Recipient or contacted Recipient to initiate such discussions, or (iii) any\nemployee who has sought employment with Recipient on his or her own initiative; provided further, that generalized solicitation of employment\nopportunities and generalized employee searches by headhunter/search firms (in either case not focused specifically on or directed in any way at the\nemployees or an employee of Protection One) shall not be deemed to cause a breach of this non-solicitation restriction. Recipient also agrees that, for\na period of two years from the date hereof, it shall not hire or otherwise engage any individual who is or becomes an employee\n4\nof Protection One and who is involved in the discussions between the Parties with respect to a Transaction or of whom Recipient becomes aware as a\nresult of such discussions; provided, however, that this restriction shall not apply to (i) any part-time employee, (ii) any employee who as of the date\nhereof has already entered into employment discussions with Recipient or contacted Recipient to initiate such discussions, or (iii) any employee who\nhas sought employment with Recipient on his or her own initiative, including pursuant to the generalized solicitation and searches permitted by this\nSection 5.\n6. Standstill. Recipient hereby agrees that, for a period of two years from the date hereof, Recipient and its Affiliates will not (and\nneither Recipient nor its Affiliates will assist, or provide or arrange financing to or for, others in order to), directly or indirectly, acting alone or in\nconcert with others, unless specifically invited on an unsolicited basis in advance by Protection One: (i) acquire or agree, offer, seek or propose\nto\nacquire (or request permission to do so) ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange\nAct) of any of the assets (other than in the ordinary course of business) or businesses of Protection One, any securities issued by Protection One, or\nany option or other right to acquire such ownership (including from a third party) or any other economic interest (through derivative securities\nor\notherwise) in Protection One; (ii) seek or propose to influence or control the management or the policies of Protection One or to obtain\nrepresentation on the board of directors (or any committee thereof) of Protection One, or solicit or participate in the solicitation of any proxies\nor\nconsents with respect to any securities of Protection One; (iii) seek or propose to have called, or cause to be called, any meeting of stockholders of\nProtection One; (iv) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the\nforegoing; (v) advise, assist, encourage, act as a financing source for or otherwise invest in any other person in connection with any of the foregoing\nactivities; (vi) propose or seek to propose any business combination, recapitalization, restructuring, liquidation, dissolution or other extraordinary\ntransaction with respect to Protection One or any of its subsidiaries; (vii) disclose any intention, plan or arrangement inconsistent with any of the\nforegoing; or (viii) seek to have Protection One amend or waive any provision of this Section 6. Recipient agrees to advise Protection One promptly\nof any inquiry or proposal made to it with respect to any of the foregoing, unless Recipient declines to discuss such inquiry or proposal with the\nparty making it. Recipient further agrees that, during the period referred to in the first sentence of this Section 6, neither it nor any of its Affiliates\nwill, without the written consent of Protection One, take any initiative or other action with respect to Protection One or any of the subsidiaries of\nProtection One that is reasonably likely to require Protection One to make a public announcement regarding (i) such initiative or other action,\n(ii) any of the activities, events or circumstances referred to in the preceding sentences of this Section 6, (iii) the possibility of a Transaction or any\nsimilar transaction between Protection One and any particular party or (iv) the possibility of Recipient or any other person acquiring control of\nProtection One, whether by means of a business combination or otherwise. Recipient represents to Protection One that neither it nor any of its\nAffiliates (other than individuals in their individual accounts and in de minimis amounts) owns (including, but not limited to, beneficial ownership\nas\ndefined in Rule 13d-3 under the Exchange Act) any securities of Protection One as of the date hereof.\n7. Remedies. Recipient acknowledges and agrees that money damages may not be a sufficient remedy for any breach of this Agreement\nby Recipient or any of its Representatives and that Protection One is entitled to seek equitable relief, including injunction\n5\nand specific performance, as a remedy of such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this\nAgreement, but shall be in addition to all other remedies available at law or equity to Protection One. In the event of litigation relating to this\nAgreement, if a court of competent jurisdiction determines that a Party or any of its Representatives has breached this Agreement, or if a Party does\nnot prevail in any such action, such breaching or non-prevailing Party shall be liable for and pay to the other Party on demand promptly following\nthe submission of supporting documents the reasonable and documented legal fees and expenses incurred by the non-breaching or prevailing Party in\nconnection with such litigation, including any appeal therefrom. The restrictions expressed in this Agreement in no way supersede or eliminate any\nrights which Protection One may have pursuant to Federal or state law pertaining to trade secrets or proprietary information and, in the event that\nany such Federal or state law provides greater protections of any Evaluation Material than the protections set forth in this Agreement, such greater\nprotections shall apply to such Evaluation Material.\n8. Indemnification. Recipient agrees to indemnify, defend and hold harmless Protection One from and against any and all losses,\ndamages, liabilities, assessments, costs, charges or claims (including without limitation reasonable and documented attorneys' fees and costs)\nincurred or suffered by Protection One as a result of or arising out of any unauthorized or improper use or disclosure by Recipient or any of its\nRepresentatives of any Evaluation Material or any breach by Recipient or any of its Representatives of the obligations of Recipient under this\nAgreement. The foregoing indemnification provision is in addition to, and not in derogation of, any statutory, equitable or common law remedy that\nProtection One may have.\n9. Certain Definitions.\n"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations promulgated under the Exchange Act.\n"Exchange Act" means the U.S. Securities Exchange Act of 1934, as amended.\n"Representatives" of a Party means the directors, officers, partners, managers, members, patrons, employees, advisors, agents and other\nrepresentatives of such Party, including attorneys, accountants, actuaries, consultants and financial advisors, debt financing sources but specifically\nexcluding any source of equity financing (unless expressly approved in writing by the other Party).\n10. Affiliates. Notwithstanding anything in this Agreement to the contrary, Protection One agrees that, to the extent Recipient or its\nRepresentatives do not disclose the Evaluation Material, directly or indirectly, to entities controlled or otherwise managed, directly or indirectly, by\nyou, none of the terms of this Agreement shall apply to such entities.\n11. Waivers and Amendments. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as\na\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other exercise thereof or the exercise of any other right, power or\nprivilege hereunder. No alteration, amendment, change or supplement hereto shall be binding or effective unless the same is set forth in writing\nsigned by a duly authorized\n6\nrepresentative of each Party. No provision hereof or right hereunder may be waived except by a separate written letter executed by a duly authorized\nrepresentative of the waiving Party, which writing expressly waives an identified portion of this Agreement.\n12. Notices. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this\nAgreement shall be in writing and shall be deemed to have been given when delivered personally to the recipient, two business days after being sent\nto\nthe recipient by reputable intercontinental courier service (charges prepaid) or five business days after being mailed to the recipient by certified or\nregistered mail, return receipt requested and postage prepaid. Such notices, demands and other communications shall be sent to each Party at the\naddress indicated on the signature page to this Agreement or to such other address or to the attention of such other person as the recipient Party has\nspecified by prior written notice to the sending Party.\n13. Choice of Law/Consent to Jurisdiction. The validity, interpretation, performance and enforcement of this Agreement shall\nbe\ngoverned by the laws of the State of Delaware without regard to the conflicts of laws principles thereof. Each Party hereby irrevocably and\nunconditionally consents to the exclusive jurisdiction of the U.S. federal and state courts in the City of Wilmington, Delaware for any action, suit or\nproceeding arising out of or related hereto. Each Party hereto further hereby irrevocably and unconditionally waives any objection to the laying of\nvenue of any action, suit or proceeding arising out of or relating to this Agreement in the U.S. federal and state courts of the City of Wilmington,\nDelaware and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or\nproceeding brought in any such court has been brought in an inconvenient forum.\n14. Severability.. If any provision or portion of this Agreement should be determined by any court or agency of competent jurisdiction to\nbe invalid, illegal or unreasonable, in whole or in part in any jurisdiction, and such determination should become final, such provision or portion\nshall\nbe\ndeemed\nto\nbe\nsevered\nin\nsuch\njurisdiction,\nbut\nonly\nto\nthe\nextent\nrequired\nto\nrender\nthe\nremaining\nprovisions\nand\nportions\nof\nthis\nAgreement\nenforceable, and this Agreement as thus amended shall be enforced in such jurisdiction to give effect to the intention of the Parties insofar as that\nis\npossible, and further, the Agreement shall continue without amendment in full force and effect in all other jurisdictions. In the event of any such\ndetermination, the Parties shall negotiate in good faith to modify this Agreement to fulfill as closely as possible the original intents and purposes\nhereof.\n15. Insider Trading. Recipient acknowledges that Protection One is an issuer with securities registered pursuant to the Exchange Act\nand that the disclosure of nonpublic information regarding Protection One or any of its subsidiaries by Recipient or trading in the securities\nof\nProtection One by Recipient while in the possession of such information may, depending on the facts and circumstances, subject Recipient\nto\nliability under certain U.S. securities laws.\n16. Construction. For purposes of Section 1 through and including Section 7 hereof, reference to Recipient shall also include the\nsubsidiaries and Affiliates of Recipient, and Recipient will be responsible for any breach of the provisions of this Agreement by its\n7\nsubsidiaries and Affiliates and any other person to whom Recipient (or its Representatives) provides any Evaluation Material. The term "person" as\nused in this Agreement shall be interpreted broadly to include the media and any corporation, group, individual or other entity. The word "including"\n(and all variations) shall mean including without limitation. The Parties have participated jointly in the negotiation and drafting of this Agreement. In\nthe event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no\npresumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.\nAny reference to any U.S. federal, state, local or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated\nthereunder, unless the context requires otherwise.\n17. Counterparts. For the convenience of the Parties, any number of counterparts of this Agreement may be executed by the Parties\nhereto. Each such counterpart shall be, and shall be deemed to be, an original instrument, but all such counterparts taken together shall constitute one\nand the same Agreement. A facsimile or .pdf or similar electronic copy of this Agreement or any signatures hereon shall be considered as originals\nfor all purposes.\n18. Successors and Assigns. The benefits of this Agreement shall inure to the respective successors and assigns of the Parties hereto,\nand the obligations and liabilities assumed in this Agreement by the Parties hereto shall be binding upon their respective successors and assigns.\n19. Headings. The headings to the Sections and subsections contained herein are for identification purposes only and are not to be\nconstrued as part of this Agreement.\n20. Entire Agreement. This Agreement embodies the entire agreement and understanding of the Parties hereto and supersedes any and\nall prior agreements, arrangements and understandings, written or oral, relating to the matters provided for herein, including the Confidentiality\nAgreement dated July 15, 2008 between Protection One, Inc. and GTCR Golder Rauner, LLC.\n21. Term. Unless a shorter period of time is specified elsewhere in this Agreement, all obligations of the Parties shall continue until the\nthird anniversary of the date hereof.\n[Signature Page Follows]\n8\nIN WITNESS WHEREOF, the Parties hereto have executed or caused this Confidentiality Agreement to be executed by their duly\nauthorized officers as of the day and year first written above.\nPROTECTION ONE, INC.\nBy:\n/s/ Eric Griffin\nName:\nERIC GRIFFIN\nTitle:\nVICE PRESIDENT\nAddress:\n1035 N. Third Street, Suite 101\nLawrence, Kansas 66044\nAttention: Darius G. Nevin\nFacsimile: 785.856.9950\nGTCR GOLDER RAUNER II, LLC\nBy:\n/s/ Christian McGrath\nName:\nChristian McGrath\nTitle:\nGeneral Counsel\nAddress:\n300 N. LaSalle Street\nSuite 5600\nChicago, IL 60654\nAttention: General Counsel\nFacsimile: 312.382.2201\n9 -	EX-99.(E)(6) 3 dex99e6.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(6)\nCONFIDENTIALITY AGREEMENT\nThis CONFIDENTIALITY AGREEMENT (this “Agreement”), dated as of January 25, 2010, is by and between Protection One, Inc.\n(“Protection One”) and GTCR Golden Rauner II, LLC (“Recipient”). Protection One and Recipient are sometimes collectively referred to herein as\nthe “Parties” and individually as a “Party.” Certain capitalized terms used herein have the meanings set forth in Section 9.\nWITNESSETH\nWHEREAS, Recipient desires that Protection One provide certain information in order to enable Recipient to evaluate the possibility of\nengaging in a strategic transaction (the “Transaction”);\nWHEREAS, during the course of any discussions or negotiations regarding the Transaction, Protection One will from time to time\nprovide Recipient with confidential information;\nWHEREAS, Recipient acknowledges and agrees that the confidential information provided by Protection One, before or after the\nexecution of this Agreement, is proprietary and highly confidential and that the unauthorized disclosure of such confidential information would\nresult in substantial and irreparable harm to Protection One, which harm would be extremely difficult to quantify; and\nWHEREAS, Protection One desires to preserve its employee base, business operations and capital structure free from the disruption that\ncould arise from the misuse of such confidential information.\nNOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and adequacy of\nwhich are hereby acknowledged, the Parties hereto expressly agree as follows:\n1. Evaluation Material. The term “Evaluation Material” means any and all information, in any form or medium, written or oral,\nconcerning or relating to Protection One (whether prepared by Protection One, its Representatives or otherwise, and irrespective of the form or\nmeans of communication and whether it is labeled or otherwise identified as confidential) that is furnished to or on behalf of Recipient by or on\nbehalf of Protection One, including without limitation all oral and written information relating to financial statements, projections, evaluations,\nplans, programs, customers, suppliers, facilities, equipment and other assets, products, processes, manufacturing, marketing, research and\ndevelopment, trade secrets, know-how, patent applications that have not been published, technology and any other confidential information or\nintellectual property of Protection One. In addition, “Evaluation Material” shall be deemed to include all notes, analyses, studies, interpretations,\nmemoranda and other documents, materials or reports (in any form or medium) prepared by Recipient or any of its Representatives that contain,\nreflect or are based upon, in whole or part, the information furnished to or on behalf of Recipient as contemplated hereby. The term “Evaluation\nMaterial” shall not include information that: (a) is or becomes available to the public generally, other than as a result of disclosure by Recipient or\none of its Representatives in breach of the terms of this\nAgreement; (b) becomes available to Recipient from a source other than Protection One or one of its Representatives, including without limitation\nprior to the date hereof, provided that such source is not known by the Recipient after reasonable inquiry to be bound by a confidentiality agreement\nor to have a contractual, legal or fiduciary obligation of confidentiality to Protection One or any other person with respect to such information; or\n(c) has been independently acquired or developed by Recipient without using any Evaluation Material or violating any of its obligations under this\nAgreement.\n2. Use of Evaluation Material and Confidentiality.\n(a) The Recipient agrees that it and its Representatives shall use the Evaluation Material solely for the purpose of evaluating and negotiating\nthe possible Transaction, that neither Recipient nor any of its Representatives will use any of the Evaluation Material in any way that could be\n(directly or indirectly) detrimental to Protection One, and that the Evaluation Material will be kept confidential and that neither Recipient nor any of\nits Representatives will disclose any Evaluation Material in any manner whatsoever; provided, however, that Recipient may disclose Evaluation\nMaterial as follows: (i) to such of its Representatives who need such information for the purpose of evaluating and negotiating the possible\nTransaction, it being understood that such Representatives shall be informed in advance by Recipient of the confidential nature of such information;\n(ii) as expressly contemplated by this Agreement; and (iii) in all other cases, only if and to the extent that Protection One gives its prior written\nconsent to such disclosure.\n(b) As a condition to the furnishing of Evaluation Material to the Representatives of Recipient, Recipient shall cause its Representatives to\ntreat such information in accordance with the provisions of this Agreement and to perform or to comply with the obligations of Recipient with\nrespect to the Evaluation Material as contemplated hereby. Recipient agrees that it will be fully responsible for any breach of any of the provisions of\nthis Agreement by its Representatives.\n(c) Recipient agrees to take all reasonable steps to keep the Evaluation Material and any copies thereof secure and in such a way so as to\nprevent unauthorized access by any third party.\n(d) Recipient agrees that, without the prior written consent of Protection One, except as expressly permitted hereunder, Recipient and its\nRepresentatives shall not disclose to any person, prior to the time of public announcement by Protection One and Recipient of a definitive agreement\nbetween Recipient and Protection One with respect to a Transaction, the fact that the Evaluation Material has been made available to it/them, the fact\nthat discussions or negotiations are taking place or have taken place concerning a possible Transaction between the Parties, the existence of this\nAgreement or anything that might identify Protection One as exploring or having explored a possible Transaction or any similar transaction with any\nparticular party; provided, however, that Recipient may make such disclosure as it determines in good faith and upon the advice of counsel is\nrequired by law or the applicable rules of any national securities exchange or other market or reporting system (in which event Recipient shall use\nreasonable efforts to consult with Protection One as early as possible prior to any such disclosure regarding the nature, timing, extent and form of\nsuch disclosure).\n-2-\n(e) Recipient agrees that, without the prior written consent of Protection One, except as expressly permitted hereunder, Recipient and its\nRepresentatives shall not disclose to any other person (including, without limitation, by issuing a press release or otherwise making any public\nstatement) any of the terms, conditions or other information with respect to the Transaction, including the status thereof; provided, however, that\nRecipient may make such disclosure as it determines in good faith and upon the advice of counsel is required by law or the applicable rules of any\nnational securities exchange or other market or reporting system (in which event Recipient shall use reasonable efforts to consult with Protection\nOne as early as possible prior to any such disclosure regarding the nature, timing, extent and form of such disclosure).\n(f) If Recipient or any of its Representatives are requested or required to disclose any Evaluation Material by interrogatories or requests for\ninformation or other documents in any legal proceeding, subpoena, civil investigative demand or other similar process, to the extent legally\npermissible, Recipient shall provide Protection One with prompt written notice of any such request or requirement so that Protection One has an\nopportunity to seek a protective order or other appropriate remedy or waive compliance with the provisions of this Agreement If Protection One\nwaives compliance with the provisions of this Agreement with respect to a specific request or requirement, Recipient and its Representatives shall\ndisclose only that portion of the Evaluation Material that is covered by such waiver and which is necessary to disclose in order to comply with such\nrequest or requirement. If (in the absence of a waiver by Protection One) Protection One has not secured a protective order or other appropriate\nremedy, and Recipient or one of its Representatives is nonetheless then legally compelled to disclose any Evaluation Material, Recipient or such\nRepresentative may, without liability hereunder, disclose only that portion of the Evaluation Material that is legally compelled to be disclosed.\n(g) If either Party hereto decides that it does not desire to proceed with the Transaction, then it shall promptly notify the other Party. Under\nsuch circumstances, upon the written request of Protection One, Recipient shall promptly destroy or deliver or cause to be delivered to Protection\nOne all Evaluation Material furnished to it or to any of its Representatives, together with all copies of such Evaluation Material (including, without\nlimitation, electronic copies), in the possession or control of Recipient or in the possession or control of any of its Representatives, and an officer of\nRecipient shall certify promptly in writing to Protection One that all such Evaluation Material has been destroyed or returned. Recipient nonetheless\nshall be entitled to retain a copy of all Evaluation Material of the Company in its legal files for use solely in connection with any litigation,\narbitration or like action between the Parties or involving one or both Parties related thereto. Notwithstanding the return, destruction or preservation\nof the Evaluation Material as contemplated by this subsection, Recipient and its Representatives will continue to be bound by the terms of this\nAgreement with respect thereto, including all obligations of confidentiality.\n(h) Nothing herein shall be deemed to limit or restrict Recipient from disclosing any information in any action or proceeding by Recipient to\nenforce any rights that Recipient may have against Protection One under this Agreement.\n3. No Liability, Reliance or Obligation. Each Party hereto understands and acknowledges that the other Party shall not be committed or\nliable in any way with respect to any\n-3-\nTransaction or to any matters discussed or negotiated unless and until a formal written agreement with respect thereto is executed by an authorized\nofficer of each Party, and that neither Party shall have any liability to the other Party in the event that, for any reason whatsoever, no such formal\nwritten agreement is executed, except for any breach of the terms of this Agreement. Neither Party shall have any obligation to commence or\ncontinue discussions or negotiations, to provide or receive any Evaluation Material, to reach or execute any agreement or to refrain from entering\ninto or continuing any discussions, negotiations and/or agreements at any time with any third party, unless and until a formal written agreement is\nexecuted by Protection One and Recipient, and only to the extent provided therein. Except as set forth in any formal written agreement executed by\nProtection One and Recipient, neither Recipient nor any of its Representatives shall be entitled to rely on any statement, promise, agreement or\nunderstanding, whether written or oral, made by Protection One or its Representatives or any custom, usage of trade or course of dealing or conduct\nbetween the Parties or their Representatives. In addition, Recipient understands and acknowledges that, except as may be provided in a written\ndefinitive agreement between the parties, neither Protection One nor any of its Representatives makes any representation or warranty, express or\nimplied, as to the accuracy or completeness of any Evaluation Material, and that neither Protection One nor any of its Representatives shall have any\nliability whatsoever to Recipient or to any of its Representatives relating to or resulting from the Evaluation Material or any errors therein or\nomissions therefrom.\n4. Diligence Process. Recipient shall cause its Representatives not to initiate or maintain contact with any stockholder, director, officer,\nemployee, partner, manager, member, agent, customer, supplier or lender of Protection One with respect to or relating in any way to the Transaction,\nor in which the Transaction is discussed or referred to directly or indirectly, except in accordance with guidelines that are mutually established by the\nParties and as provided in this Section. Recipient hereby agrees to submit or direct to the designee or designees of Protection One all\n(a) communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management or employee\nmeetings or conversations and (d) discussions or questions regarding procedures.\n5. Non-Solicitation and Non-Hire of Employees. Recipient acknowledges that the employees of Protection One are a key component to\nthe success of Protection One and that the preservation of the employee base of Protection One is critical to, among other things, the prospects of\nProtection One. Consequently, Recipient has agreed to the following non-solicitation and non-hire provisions. Recipient agrees that, for a period of\ntwo years from the date hereof, it shall not solicit any individual who is or becomes an employee of Protection One, and who is involved in the\ndiscussions between the Parties with respect to a Transaction or of whom Recipient becomes aware as a result of such discussions, to leave his or her\nemployment with Protection One; provided, however, that this restriction shall not apply to (i) any part-time employee, (ii) any employee who as of\nthe date hereof has already entered into employment discussions with Recipient or contacted Recipient to initiate such discussions, or (iii) any\nemployee who has sought employment with Recipient on his or her own initiative; provided further, that generalized solicitation of employment\nopportunities and generalized employee searches by headhunter/search firms (in either case not focused specifically on or directed in any way at the\nemployees or an employee of Protection One) shall not be deemed to cause a breach of this non-solicitation restriction. Recipient also agrees that, for\na period of two years from the date hereof, it shall not hire or otherwise engage any individual who is or becomes an employee\n-4-\nof Protection One and who is involved in the discussions between the Parties with respect to a Transaction or of whom Recipient becomes aware as a\nresult of such discussions; provided, however, that this restriction shall not apply to (i) any part-time employee, (ii) any employee who as of the date\nhereof has already entered into employment discussions with Recipient or contacted Recipient to initiate such discussions, or (iii) any employee who\nhas sought employment with Recipient on his or her own initiative, including pursuant to the generalized solicitation and searches permitted by this\nSection 5.\n6. Standstill. Recipient hereby agrees that, for a period of two years from the date hereof, Recipient and its Affiliates will not (and\nneither Recipient nor its Affiliates will assist, or provide or arrange financing to or for, others in order to), directly or indirectly, acting alone or in\nconcert with others, unless specifically invited on an unsolicited basis in advance by Protection One: (i) acquire or agree, offer, seek or propose to\nacquire (or request permission to do so) ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange\nAct) of any of the assets (other than in the ordinary course of business) or businesses of Protection One, any securities issued by Protection One, or\nany option or other right to acquire such ownership (including from a third party) or any other economic interest (through derivative securities or\notherwise) in Protection One; (ii) seek or propose to influence or control the management or the policies of Protection One or to obtain\nrepresentation on the board of directors (or any committee thereof) of Protection One, or solicit or participate in the solicitation of any proxies or\nconsents with respect to any securities of Protection One; (iii) seek or propose to have called, or cause to be called, any meeting of stockholders of\nProtection One; (iv) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the\nforegoing; (v) advise, assist, encourage, act as a financing source for or otherwise invest in any other person in connection with any of the foregoing\nactivities; (vi) propose or seek to propose any business combination, recapitalization, restructuring, liquidation, dissolution or other extraordinary\ntransaction with respect to Protection One or any of its subsidiaries; (vii) disclose any intention, plan or arrangement inconsistent with any of the\nforegoing; or (viii) seek to have Protection One amend or waive any provision of this Section 6. Recipient agrees to advise Protection One promptly\nof any inquiry or proposal made to it with respect to any of the foregoing, unless Recipient declines to discuss such inquiry or proposal with the\nparty making it. Recipient further agrees that, during the period referred to in the first sentence of this Section 6, neither it nor any of its Affiliates\nwill, without the written consent of Protection One, take any initiative or other action with respect to Protection One or any of the subsidiaries of\nProtection One that is reasonably likely to require Protection One to make a public announcement regarding (i) such initiative or other action,\n(ii) any of the activities, events or circumstances referred to in the preceding sentences of this Section 6, (iii) the possibility of a Transaction or any\nsimilar transaction between Protection One and any particular party or (iv) the possibility of Recipient or any other person acquiring control of\nProtection One, whether by means of a business combination or otherwise. Recipient represents to Protection One that neither it nor any of its\nAffiliates (other than individuals in their individual accounts and in de minimis amounts) owns (including, but not limited to, beneficial ownership as\ndefined in Rule 13d-3 under the Exchange Act) any securities of Protection One as of the date hereof.\n7. Remedies. Recipient acknowledges and agrees that money damages may not be a sufficient remedy for any breach of this Agreement\nby Recipient or any of its Representatives and that Protection One is entitled to seek equitable relief, including injunction\n-5-\nand specific performance, as a remedy of such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this\nAgreement, but shall be in addition to all other remedies available at law or equity to Protection One. In the event of litigation relating to this\nAgreement, if a court of competent jurisdiction determines that a Party or any of its Representatives has breached this Agreement, or if a Party does\nnot prevail in any such action, such breaching or non-prevailing Party shall be liable for and pay to the other Party on demand promptly following\nthe submission of supporting documents the reasonable and documented legal fees and expenses incurred by the non-breaching or prevailing Party in\nconnection with such litigation, including any appeal therefrom. The restrictions expressed in this Agreement in no way supersede or eliminate any\nrights which Protection One may have pursuant to Federal or state law pertaining to trade secrets or proprietary information and, in the event that\nany such Federal or state law provides greater protections of any Evaluation Material than the protections set forth in this Agreement, such greater\nprotections shall apply to such Evaluation Material.\n8. Indemnification. Recipient agrees to indemnify, defend and hold harmless Protection One from and against any and all losses,\ndamages, liabilities, assessments, costs, charges or claims (including without limitation reasonable and documented attorneys’ fees and costs)\nincurred or suffered by Protection One as a result of or arising out of any unauthorized or improper use or disclosure by Recipient or any of its\nRepresentatives of any Evaluation Material or any breach by Recipient or any of its Representatives of the obligations of Recipient under this\nAgreement. The foregoing indemnification provision is in addition to, and not in derogation of, any statutory, equitable or common law remedy that\nProtection One may have.\n9. Certain Definitions.\n“Affiliate” has the meaning set forth in Rule 12b-2 of the regulations promulgated under the Exchange Act.\n“Exchange Act” means the U.S . Securities Exchange Act of 1934, as amended.\n“Representatives” of a Party means the directors, officers, partners, managers, members, patrons, employees, advisors, agents and other\nrepresentatives of such Party, including attorneys, accountants, actuaries, consultants and financial advisors, debt financing sources but specifically\nexcluding any source of equity financing (unless expressly approved in writing by the other Party).\n10. Affiliates. Notwithstanding anything in this Agreement to the contrary, Protection One agrees that, to the extent Recipient or its\nRepresentatives do not disclose the Evaluation Material, directly or indirectly, to entities controlled or otherwise managed, directly or indirectly, by\nyou, none of the terms of this Agreement shall apply to such entities.\n11. Waivers and Amendments. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as\na waiver thereof, nor shall any single or partial exercise thereof preclude any other exercise thereof or the exercise of any other right, power or\nprivilege hereunder. No alteration, amendment, change or supplement hereto shall be binding or effective unless the same is set forth in writing\nsigned by a duly authorized\n-6-\nrepresentative of each Party. No provision hereof or right hereunder may be waived except by a separate written letter executed by a duly authorized\nrepresentative of the waiving Party, which writing expressly waives an identified portion of this Agreement.\n12. Notices. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this\nAgreement shall be in writing and shall be deemed to have been given when delivered personally to the recipient, two business days after being sent\nto the recipient by reputable intercontinental courier service (charges prepaid) or five business days after being mailed to the recipient by certified or\nregistered mail, return receipt requested and postage prepaid. Such notices, demands and other communications shall be sent to each Party at the\naddress indicated on the signature page to this Agreement or to such other address or to the attention of such other person as the recipient Party has\nspecified by prior written notice to the sending Party.\n13. Choice of Law/Consent to Jurisdiction. The validity, interpretation, performance and enforcement of this Agreement shall be\ngoverned by the laws of the State of Delaware without regard to the conflicts of laws principles thereof. Each Party hereby irrevocably and\nunconditionally consents to the exclusive jurisdiction of the U.S. federal and state courts in the City of Wilmington, Delaware for any action, suit or\nproceeding arising out of or related hereto. Each Party hereto further hereby irrevocably and unconditionally waives any objection to the laying of\nvenue of any action, suit or proceeding arising out of or relating to this Agreement in the U.S . federal and state courts of the City of Wilmington,\nDelaware and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or\nproceeding brought in any such court has been brought in an inconvenient forum.\n14. Severability. If any provision or portion of this Agreement should be determined by any court or agency of competent jurisdiction to\nbe invalid, illegal or unreasonable, in whole or in part in any jurisdiction, and such determination should become final, such provision or portion\nshall be deemed to be severed in such jurisdiction, but only to the extent required to render the remaining provisions and portions of this Agreement\nenforceable, and this Agreement as thus amended shall be enforced in such jurisdiction to give effect to the intention of the Parties insofar as that is\npossible, and further, the Agreement shall continue without amendment in full force and effect in all other jurisdictions. In the event of any such\ndetermination, the Parties shall negotiate in good faith to modify this Agreement to fulfill as closely as possible the original intents and purposes\nhereof.\n15. Insider Trading. Recipient acknowledges that Protection One is an issuer with securities registered pursuant to the Exchange Act\nand that the disclosure of nonpublic information regarding Protection One or any of its subsidiaries by Recipient or trading in the securities of\nProtection One by Recipient while in the possession of such information may, depending on the facts and circumstances, subject Recipient to\nliability under certain U.S . securities laws.\n16. Construction. For purposes of Section 1 through and including Section 7 hereof, reference to Recipient shall also include the\nsubsidiaries and Affiliates of Recipient, and Recipient will be responsible for any breach of the provisions of this Agreement by its\n-7-\nsubsidiaries and Affiliates and any other person to whom Recipient (or its Representatives) provides any Evaluation Material. The term “person” as\nused in this Agreement shall be interpreted broadly to include the media and any corporation, group, individual or other entity. The word “including”\n(and all variations) shall mean including without limitation. The Parties have participated jointly in the negotiation and drafting of this Agreement. In\nthe event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no\npresumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.\nAny reference to any U.S . federal, state, local or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated\nthereunder, unless the context requires otherwise.\n17. Counterparts. For the convenience of the Parties, any number of counterparts of this Agreement may be executed by the Parties\nhereto. Each such counterpart shall be, and shall be deemed to be, an original instrument, but all such counterparts taken together shall constitute one\nand the same Agreement. A facsimile or .pdf or similar electronic copy of this Agreement or any signatures hereon shall be considered as originals\nfor all purposes.\n18. Successors and Assigns. The benefits of this Agreement shall inure to the respective successors and assigns of the Parties hereto,\nand the obligations and liabilities assumed in this Agreement by the Parties hereto shall be binding upon their respective successors and assigns.\n19. Headings. The headings to the Sections and subsections contained herein are for identification purposes only and are not to be\nconstrued as part of this Agreement.\n20. Entire Agreement. This Agreement embodies the entire agreement and understanding of the Parties hereto and supersedes any and\nall prior agreements, arrangements and understandings, written or oral, relating to the matters provided for herein, including the Confidentiality\nAgreement dated July 15, 2008 between Protection One, Inc. and GTCR Golder Rauner, LLC.\n21. Term. Unless a shorter period of time is specified elsewhere in this Agreement, all obligations of the Parties shall continue until the\nthird anniversary of the date hereof.\n[Signature Page Follows]\n-8-\nIN WITNESS WHEREOF, the Parties hereto have executed or caused this Confidentiality Agreement to be executed by their duly\nauthorized officers as of the day and year first written above.\nPROTECTION ONE, INC.\nBy:\n/s/ Eric Griffin\nName:\nERIC GRIFFIN\nTitle:\nVICE PRESIDENT\nAddress:\n1035 N. Third Street, Suite 101\nLawrence, Kansas 66044\nAttention: Darius G. Nevin\nFacsimile: 785.856.9950\nGTCR GOLDER RAUNER II, LLC\nBy:\n/s/ Christian McGrath\nName:\nChristian McGrath\nTitle:\nGeneral Counsel\nAddress:\n300 N. LaSalle Street\nSuite 5600\nChicago, IL 60654\nAttention: General Counsel\nFacsimile: 312.382.2201\n-9-
499b8ef5e35c7cfef55855b2d094bff5.pdf	effective_date jurisdiction party term	EX-99.D.3 14 y61533exv99wdw3.htm EX-99.D.3: MUTUAL NON-DISCLOSURE AGREEMENT\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (the “Agreement”), effective April 3, 2008 (the “Effective Date”), is between Magic\nHat Brewing Company & Performing Arts Center, Inc., a Vermont corporation (“Company”), and PYRAMID BREWERIES INC., a Washington\ncorporation (“Pyramid”). Pyramid and the Company are sometimes referred to in this Agreement individually as a “Party” and collectively as the\n“Parties”.\nWHEREAS, Pyramid is a reporting company with the Securities and Exchange Commission and files reports and proxy materials under the\nSecurities Exchange Act of 1934, which are publicly available.\nWHEREAS, the Parties wish to exchange certain nonpublic confidential business information for purposes of engaging in preliminary\ndiscussions regarding and evaluating a possible strategic merger, acquisition or business combination between the Parties (the “Business\nPurpose”).\nNOW THEREFORE, the Parties agree as follows:\n1. Definition of Confidential Information. The term “Confidential Information” means any and all information that is or has been received\nby either Party (the “Recipient”) from the other Party (the “Disclosing Party”), or which the Recipient has had access to, during the four (4)-\nmonth period commencing on the Effective Date (the “Term”), and that is either (a) marked as “confidential,” “proprietary,” or such similar term,\nor (b) non-public information related to the Disclosing Party’s business, which the Receiving Party should reasonably know is confidential based\non the nature of such information. Without limiting the generality of the foregoing, Confidential Information shall include the following, whether\nin tangible or electronic form: business plans, customer database information, employee and independent contractor lists, internal reports and\ninvestigations, research and work in progress, source and object code, technical manuals, financial statements and projections, cost summaries\nand pricing formulae, algorithms, confidential filings with any international, federal or state agency, and all other information concerning\nmethods of doing business, ideas and inventions (whether or not patentable), and data that derives independent economic value, actual or\npotential, from not being generally known to persons who can obtain economic value from its disclosure or use that is the subject of reasonable\nefforts by the Company to maintain its secrecy.\n2. Excluded Information. Confidential Information shall not include any information that: (a) prior to its disclosure by the Disclosing Party\nis already lawfully and rightfully known by or available to the Recipient as evidenced by prior written records; (b) through no wrongful act, fault\nor negligence on the part of the Recipient is or hereafter becomes part of the public domain; (c) is lawfully received by the Recipient from a third\nparty without restriction and without breach of this agreement or any other agreement; (d) is approved for public release or use by written\nauthorization of the Disclosing Party; (e) the Recipient can demonstrate was independently developed by it without reference to the Disclosing\nParty’s Confidential Information; or (f) is disclosed pursuant to the requirement or request of a governmental agency or court of competent\njurisdiction to the extent such disclosure is required by a valid law, regulation or court order and sufficient notice is given by the Recipient to the\nDisclosing Party of any such requirement or request in order to permit the Disclosing Party to seek an appropriate protective order or exemption\nfrom such requirement or request.\n3. Non-Disclosure and Confidentiality. The Recipient shall not (a) use the Confidential Information except for the Business Purpose, or\n(b) disclose or make the Confidential Information available to any person or entity (other than Related Parties, as defined below) without the\nprior written consent of the Disclosing Party. Each Party shall take reasonable security precautions to protect the Confidential Information, at\nleast as strict as the precautions it takes to protect its own confidential and proprietary information of a similar nature. Without the prior written\nconsent of the Disclosing Party, the Recipient of Confidential Information shall restrict the disclosure and availability of Confidential\nInformation to Recipient’s financial, tax, or legal advisors, or to its directors, officers, or employees with a demonstrable need to know such\nConfidential Information (each, a “Related Party”, and, collectively, the “Related Parties”), provided that any such Related Party either agrees to\nbe bound by this Agreement or is already bound by confidentiality obligations no less restrictive than those in this Agreement. Each Party shall\nbe responsible for the breach of this Agreement by any Related Party. Neither Party shall use any Confidential Information received by it to\ndevelop a product or service which competes with or imitates products of the Disclosing Party or engage in reverse engineering to develop\nsimilar products or services using the Confidential Information (it being acknowledged and understood that both Parties are engaged in the\nbusiness of beer brewing and that competing beer products are regularly independently developed within the beer industry using the same or\nsimilar raw materials, processes and packaging). The Recipient shall prevent commingling of the Confidential Information with similar\ninformation or material of other third parties. The obligations of confidentiality and protection under this Agreement shall survive for three (3)\nyears following the expiration of the Term.\n4. Non-Solicitation. Other than through general employment listings and advertising or through the efforts of employment search firms, each\nParty shall not, during the Term of this Agreement and for one (1) year thereafter, directly or indirectly, solicit or hire any employee or\nindependent contractor of the other Party, or induce any such person to abandon their relationship with the other Party.\n5. No Warranty. THE CONFIDENTIAL INFORMATION IS PROVIDED “AS IS,” AND THE DISCLOSING PARTY HEREBY\nDISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE ACCURACY, SUFFICIENCY, SUITABILITY OR NON-\nINFRINGEMENT OF SUCH CONFIDENTIAL INFORMATION.\n6. No License or Obligations; Return of Confidential Information. This Agreement does not represent nor imply any agreement or\ncommitment to enter into any further business relationship. This Agreement does not create any agency or partnership relationship between the\nParties or authorize a Party to use the other Party’s name or trademarks. As between the Parties, all Confidential Information received by a\nRecipient shall remain the sole and exclusive property of the Disclosing Party. Upon written request by the Disclosing Party, the Recipient shall\nreturn to the Disclosing Party, or shall destroy in a manner satisfactory to the Disclosing Party, all tangible or electronic forms of Confidential\nInformation, including any and all copies of the Confidential Information or notes containing the Confidential Information, and shall provide a\nwritten certification to the Disclosing Party that all tangible forms of the Confidential Information have been returned or destroyed.\n7. Remedies for Breach. The Parties agree that money damages would be inadequate to remedy any breach of this Agreement. As a result, a\nnon-breaching party shall be entitled to seek, and a court of competent jurisdiction may grant, specific performance and\n2\ninjunctive or other equitable relief as a remedy for any breach of this Agreement. Such remedy shall be in addition to all other remedies,\nincluding money damages, available to a non-breaching party at law or in equity.\n8. Notices. Any notice given by one Party to the other under this Agreement shall be sent by registered mail, return receipt requested, or\nreputable overnight courier to the addresses listed below (or such address changed by the giving of like notice to the other Party), and shall be\ndeemed received upon actual receipt by the recipient Party.\n9. Governing Law; Attorneys’ Fees. This Agreement, including all matters of construction, validity and performance, shall be governed by,\nconstrued and enforced in accordance with the laws of the State of Washington, as applied to contracts made and to be fully performed in such\nstate, without regard to its conflict of law rules. The Parties consent to the jurisdiction of the state and federal courts located in New York, New\nYork. A prevailing Party shall be entitled to an award of its reasonable attorneys’ fees and costs arising out of this Agreement.\n10. Miscellaneous. This Agreement sets forth the entire agreement between the Parties hereto with respect to its subject matter, and any and\nall prior agreements, understandings or representations with respect to its subject matter are merged herein. This Agreement may be amended and\nany provision may be waived only by the written agreement of the Parties. The terms and conditions of this Agreement shall inure to the benefit\nof and be binding upon the respective successors and assigns of the Parties, provided that Confidential Information of the Disclosing Party may\nnot be assigned by the Recipient without the prior written consent of the Disclosing Party. If any provision of this Agreement is held by a court of\ncompetent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any\nway be effected, impaired or invalidated thereby. This Agreement may be executed in two or more counterparts or by other electronic means,\neach of which shall be deemed an original, and all of which together shall constitute one and the same instrument.\n3\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.\nPYRAMID BREWERIES INC.,\nMAGIC HAT BREWING COMPANY & PERFORMING\nARTS CENTER, INC.,\na Washington corporation\na Vermont corporation\nBy (signature):\nBy (signature):\nPrinted Name:\nPrinted Name:\nTitle:\nTitle:\nAddress:\n91 South Royal Brougham Way\nAddress:\n5 Bartlett Road\nSeattle, WA 98134\nSouth Burlington, VT 05403\nFax:\nFax:\n(802) 658-5788\n4	EX-99.D.3 14 y61533exv99wdw3.htm EX-99.D.3: MUTUAL NON-DISCLOSURE AGREEMENT\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (the “Agreement”), effective April 3, 2008 (the “Effective Date™), is between Magic\nHat Brewing Company & Performing Arts Center, Inc., a Vermont corporation (“Company”), and PYRAMID BREWERIES INC., a Washington\ncorporation (“Pyramid”). Pyramid and the Company are sometimes referred to in this Agreement individually as a “Party” and collectively as the\n“Parties”.\n \nWHEREAS, Pyramid is a reporting company with the Securities and Exchange Commission and files reports and proxy materials under the\nSecurities Exchange Act of 1934, which are publicly available.\nWHEREAS, the Parties wish to exchange certain nonpublic confidential business information for purposes of engaging in preliminary\ndiscussions regarding and evaluating a possible strategic merger, acquisition or business combination between the Parties (the “Business\nPurpose”).\nNOW THEREFORE, the Parties agree as follows:\n1. Definition of Confidential Information. The term “Confidential Information” means any and all information that is or has been received\nby either Party (the “Recipient”) from the other Party (the “Disclosing Party™), or which the Recipient has had access to, during the four (4)-\nmonth period commencing on the Effective Date (the “Term™), and that is either (a) marked as “confidential,” “proprietary,” or such similar term,\nor (b) non-public information related to the Disclosing Party’s business, which the Receiving Party should reasonably know is confidential based\non the nature of such information. Without limiting the generality of the foregoing, Confidential Information shall include the following, whether\nin tangible or electronic form: business plans, customer database information, employee and independent contractor lists, internal reports and\ninvestigations, research and work in progress, source and object code, technical manuals, financial statements and projections, cost summaries\nand pricing formulae, algorithms, confidential filings with any international, federal or state agency, and all other information concerning\nmethods of doing business, ideas and inventions (whether or not patentable), and data that derives independent economic value, actual or\npotential, from not being generally known to persons who can obtain economic value from its disclosure or use that is the subject of reasonable\nefforts by the Company to maintain its secrecy.\n2. Excluded Information. Confidential Information shall not include any information that: (a) prior to its disclosure by the Disclosing Party\nis already lawfully and rightfully known by or available to the Recipient as evidenced by prior written records; (b) through no wrongful act, fault\nor negligence on the part of the Recipient is or hereafter becomes part of the public domain; (c) is lawfully received by the Recipient from a third\nparty without restriction and without breach of this agreement or any other agreement; (d) is approved for public release or use by written\nauthorization of the Disclosing Party; (e) the Recipient can demonstrate was independently developed by it without reference to the Disclosing\nParty’s Confidential Information; or (f) is disclosed pursuant to the requirement or request of a governmental agency or court of competent\njurisdiction to the extent such disclosure is required by a valid law, regulation or court order and sufficient notice is given by the Recipient to the\nDisclosing Party of any such requirement or request in order to permit the Disclosing Party to seek an appropriate protective order or exemption\nfrom such requirement or request.\n3. Non-Disclosure and Confidentiality. The Recipient shall not (a) use the Confidential Information except for the Business Purpose, or\n(b) disclose or make the Confidential Information available to any person or entity (other than Related Parties, as defined below) without the\nprior written consent of the Disclosing Party. Each Party shall take reasonable security precautions to protect the Confidential Information, at\nleast as strict as the precautions it takes to protect its own confidential and proprietary information of a similar nature. Without the prior written\nconsent of the Disclosing Party, the Recipient of Confidential Information shall restrict the disclosure and availability of Confidential\nInformation to Recipient’s financial, tax, or legal advisors, or to its directors, officers, or employees with a demonstrable need to know such\nConfidential Information (each, a “Related Party”, and, collectively, the “Related Parties”), provided that any such Related Party either agrees to\nbe bound by this Agreement or is already bound by confidentiality obligations no less restrictive than those in this Agreement. Each Party shall\nbe responsible for the breach of this Agreement by any Related Party. Neither Party shall use any Confidential Information received by it to\ndevelop a product or service which competes with or imitates products of the Disclosing Party or engage in reverse engineering to develop\nsimilar products or services using the Confidential Information (it being acknowledged and understood that both Parties are engaged in the\nbusiness of beer brewing and that competing beer products are regularly independently developed within the beer industry using the same or\nsimilar raw materials, processes and packaging). The Recipient shall prevent commingling of the Confidential Information with similar\ninformation or material of other third parties. The obligations of confidentiality and protection under this Agreement shall survive for three (3)\nyears following the expiration of the Term.\n4. Non-Solicitation. Other than through general employment listings and advertising or through the efforts of employment search firms, each\nParty shall not, during the Term of this Agreement and for one (1) year thereafter, directly or indirectly, solicit or hire any employee or\nindependent contractor of the other Party, or induce any such person to abandon their relationship with the other Party.\n5. No Warranty. THE CONFIDENTIAL INFORMATION IS PROVIDED “AS IS,” AND THE DISCLOSING PARTY HEREBY\nDISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE ACCURACY, SUFFICIENCY, SUITABILITY OR NON-\nINFRINGEMENT OF SUCH CONFIDENTIAL INFORMATION.\n6. No License or Obligations; Return of Confidential Information. This Agreement does not represent nor imply any agreement or\ncommitment to enter into any further business relationship. This Agreement does not create any agency or partnership relationship between the\nParties or authorize a Party to use the other Party’s name or trademarks. As between the Parties, all Confidential Information received by a\nRecipient shall remain the sole and exclusive property of the Disclosing Party. Upon written request by the Disclosing Party, the Recipient shall\nreturn to the Disclosing Party, or shall destroy in a manner satisfactory to the Disclosing Party, all tangible or electronic forms of Confidential\nInformation, including any and all copies of the Confidential Information or notes containing the Confidential Information, and shall provide a\nwritten certification to the Disclosing Party that all tangible forms of the Confidential Information have been returned or destroyed.\n7. Remedies for Breach. The Parties agree that money damages would be inadequate to remedy any breach of this Agreement. As a result, a\nnon-breaching party shall be entitled to seek, and a court of competent jurisdiction may grant, specific performance and\n2\ninjunctive or other equitable relief as a remedy for any breach of this Agreement. Such remedy shall be in addition to all other remedies,\nincluding money damages, available to a non-breaching party at law or in equity.\n8. Notices. Any notice given by one Party to the other under this Agreement shall be sent by registered mail, return receipt requested, or\nreputable overnight courier to the addresses listed below (or such address changed by the giving of like notice to the other Party), and shall be\ndeemed received upon actual receipt by the recipient Party.\n9. Governing Law; Attorneys’ Fees. This Agreement, including all matters of construction, validity and performance, shall be governed by,\nconstrued and enforced in accordance with the laws of the State of Washington, as applied to contracts made and to be fully performed in such\nstate, without regard to its conflict of law rules. The Parties consent to the jurisdiction of the state and federal courts located in New York, New\nYork. A prevailing Party shall be entitled to an award of its reasonable attorneys’ fees and costs arising out of this Agreement.\n10. Miscellaneous. This Agreement sets forth the entire agreement between the Parties hereto with respect to its subject matter, and any and\nall prior agreements, understandings or representations with respect to its subject matter are merged herein. This Agreement may be amended and\nany provision may be waived only by the written agreement of the Parties. The terms and conditions of this Agreement shall inure to the benefit\nof and be binding upon the respective successors and assigns of the Parties, provided that Confidential Information of the Disclosing Party may\nnot be assigned by the Recipient without the prior written consent of the Disclosing Party. If any provision of this Agreement is held by a court of\ncompetent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any\nway be effected, impaired or invalidated thereby. This Agreement may be executed in two or more counterparts or by other electronic means,\neach of which shall be deemed an original, and all of which together shall constitute one and the same instrument.\n3\nIN WITNESS WHEREQF, the Parties have executed this Agreement as of the date first written above. PYRAMID BREWERIES INC.,\na Washington corporation\nBy (signature):\nPrinted Name:\nTitle:\nAddress: 91 South Royal Brougham Way\nSeattle, WA 98134\nFax:\nMAGIC HAT BREWING COMPANY & PERFORMING\nARTS CENTER, INC,,\na Vermont corporation\nBy (signature):\nPrinted Name:\nTitle:\nAddress: 5 Bartlett Road\nSouth Burlington, VT 05403\nFax: (802) 658-5788	EX-99.D.3 14 y61533exv99wdw3.htm EX-99.D.3: MUTUAL NON-DISCLOSURE AGREEMENT\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (the "Agreement"), effective April 3, 2008 (the "Effective Date"), is between Magic\nHat Brewing Company & Performing Arts Center, Inc., a Vermont corporation ("Company"), and PYRAMID BREWERIES INC., a Washington\ncorporation ("Pyramid"). Pyramid and the Company are sometimes referred to in this Agreement individually as a "Party." and collectively as\nthe\n"Parties"\nWHEREAS, Pyramid is a reporting company with the Securities and Exchange Commission and files reports and proxy materials under the\nSecurities Exchange Act of 1934, which are publicly available.\nWHEREAS, the Parties wish to exchange certain nonpublic confidential business information for purposes of engaging in preliminary\ndiscussions regarding and evaluating a possible strategic merger, acquisition or business combination between the Parties (the "Business\nPurpose").\nNOW THEREFORE, the Parties agree as follows:\n1. Definition of Confidential Information. The term "Confidential Information" means any and all information that is or has been received\nby either Party (the "Recipient") from the other Party (the "Disclosing Party."), or which the Recipient has had access to, during the four (4)-\nmonth period commencing on the Effective Date (the "Term"), and that is either (a) marked as "confidential," "proprietary," or such similar term,\nor\n(b) non-public information related to the Disclosing Party's business, which the Receiving Party should reasonably know is confidential\nbased\non the nature of such information. Without limiting the generality of the foregoing, Confidential Information shall include the following, whether\nin tangible or electronic form: business plans, customer database information, employee and independent contractor lists, internal reports and\ninvestigations, research and work in progress, source and object code, technical manuals, financial statements and projections, cost summaries\nand pricing formulae, algorithms, confidential filings with any international, federal or state agency, and all other information concerning\nmethods of doing business, ideas and inventions (whether or not patentable), and data that derives independent economic value, actual or\npotential, from not being generally known to persons who can obtain economic value from its disclosure or use that is the subject of reasonable\nefforts by the Company to maintain its secrecy.\n2. Excluded Information. Confidential Information shall not include any information that: (a) prior to its disclosure by the Disclosing Party\nis\nalready lawfully and rightfully known by or available to the Recipient as evidenced by prior written records; (b) through no wrongful act, fault\nor negligence on the part of the Recipient is or hereafter becomes part of the public domain; (c) is lawfully received by the Recipient from a third\nparty without restriction and without breach of this agreement or any other agreement; (d) is approved for public release or use by written\nauthorization of the Disclosing Party; (e) the Recipient can demonstrate was independently developed by it without reference to the Disclosing\nParty's Confidential Information; or (f) is disclosed pursuant to the requirement or request of a governmental agency or court of competent\njurisdiction to the extent such disclosure is required by a valid law, regulation or court order and sufficient notice is given by the Recipient to the\nDisclosing Party of any such requirement or request in order to permit the Disclosing Party to seek an appropriate protective order or exemption\nfrom such requirement or request.\n3. Non-Disclosure and Confidentiality. The Recipient shall not (a) use the Confidential Information except for the Business Purpose, or\n(b) disclose or make the Confidential Information available to any person or entity (other than Related Parties, as defined below) without the\nprior written consent of the Disclosing Party. Each Party shall take reasonable security precautions to protect the Confidential Information,\nat\nleast as strict as the precautions it takes to protect its own confidential and proprietary information of a similar nature. Without the prior written\nconsent of the Disclosing Party, the Recipient of Confidential Information shall restrict the disclosure and availability of Confidential\nInformation to Recipient's financial, tax, or legal advisors, or to its directors, officers, or employees with a demonstrable need to know such\nConfidential Information (each, a "Related Party.", and, collectively, the "Related Parties"), provided that any such Related Party either agrees to\nbe bound by this Agreement or is already bound by confidentiality obligations no less restrictive than those in this Agreement. Each Party shall\nbe responsible for the breach of this Agreement by any Related Party. Neither Party shall use any Confidential Information received by it to\ndevelop a product or service which competes with or imitates products of the Disclosing Party or engage in reverse engineering to develop\nsimilar\nproducts\nor\nservices\nusing\nthe\nConfidentia\nInformation\n(it\nbeing\nacknowledged\nand\nunderstood\nthat\nboth\nParties\nare\nengaged\nin\nthe\nbusiness of beer brewing and that competing beer products are regularly independently developed within the beer industry using the same\nor\nsimilar raw materials, processes and packaging). The Recipient shall prevent commingling of the Confidential Information with similar\ninformation or material of other third parties. The obligations of confidentiality and protection under this Agreement shall survive for three (3)\nyears following the expiration of the Term.\n4. Non-Solicitation. Other than through general employment listings and advertising or through the efforts of employment search firms, each\nParty shall not, during the Term of this Agreement and for one (1) year thereafter, directly or indirectly, solicit or hire any employee or\nindependent contractor of the other Party, or induce any such person to abandon their relationship with the other Party.\n5. No Warranty. THE CONFIDENTIAL INFORMATION IS PROVIDED "AS IS," AND THE DISCLOSING PARTY HEREBY\nDISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE ACCURACY, SUFFICIENCY, SUITABILITY OR NON-\nINFRINGEMENT OF SUCH CONFIDENTIAL INFORMATION.\n6. No License or Obligations; Return of Confidential Information. This Agreement does not represent nor imply any agreement or\ncommitment to enter into any further business relationship. This Agreement does not create any agency or partnership relationship between the\nParties or authorize a Party to use the other Party's name or trademarks. As between the Parties, all Confidential Information received by a\nRecipient shall remain the sole and exclusive property of the Disclosing Party. Upon written request by the Disclosing Party, the Recipient shall\nreturn to the Disclosing Party, or shall destroy in a manner satisfactory to the Disclosing Party, all tangible or electronic forms of Confidential\nInformation, including any and all copies of the Confidential Information or notes containing the Confidential Information, and shall provide a\nwritten certification to the Disclosing Party that all tangible forms of the Confidential Information have been returned or destroyed.\n7. Remedies for Breach. The Parties agree that money damages would be inadequate to remedy any breach of this Agreement. As a result, a\nnon-breaching party shall be entitled to seek, and a court of competent jurisdiction may grant, specific performance and\n2\ninjunctive or other equitable relief as a remedy for any breach of this Agreement. Such remedy shall be in addition to all other remedies,\nincluding money damages, available to a non-breaching party at law or in equity.\n8. Notices. Any notice given by one Party to the other under this Agreement shall be sent by registered mail, return receipt requested,\nor\nreputable overnight courier to the addresses listed below (or such address changed by the giving of like notice to the other Party), and shall be\ndeemed received upon actual receipt by the recipient Party.\n9. Governing Law; Attorneys' Fees. This Agreement, including all matters of construction, validity and performance, shall be governed by,\nconstrued and enforced in accordance with the laws of the State of Washington, as applied to contracts made and to be fully performed in such\nstate, without regard to its conflict of law rules. The Parties consent to the jurisdiction of the state and federal courts located in New York, New\nYork. A prevailing Party shall be entitled to an award of its reasonable attorneys' fees and costs arising out of this Agreement.\n10. Miscellaneous. This Agreement sets forth the entire agreement between the Parties hereto with respect to its subject matter, and any and\nall prior agreements, understandings or representations with respect to its subject matter are merged herein. This Agreement may be amended and\nany provision may be waived only by the written agreement of the Parties. The terms and conditions of this Agreement shall inure to the benefit\nof and be binding upon the respective successors and assigns of the Parties, provided that Confidential Information of the Disclosing Party may\nnot be assigned by the Recipient without the prior written consent of the Disclosing Party. If any provision of this Agreement is held by a court of\ncompetent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in\nany\nway be effected, impaired or invalidated thereby. This Agreement may be executed in two or more counterparts or by other electronic means,\neach of which shall be deemed an original, and all of which together shall constitute one and the same instrument.\n3\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.\nPYRAMID BREWERIES INC.,\nMAGIC HAT BREWING COMPANY & PERFORMING\nARTS CENTER, INC.,\na Washington corporation\na Vermont corporation\nBy (signature):\nBy (signature):\nPrinted Name:\nPrinted Name:\nTitle:\nTitle:\nAddress:\n91 South Royal Brougham Way\nAddress:\n5 Bartlett Road\nSeattle, WA 98134\nSouth Burlington, VT 05403\nFax:\nFax:\n(802) 658-5788\n4	EX-99.D.3 14 y61533exv99wdw3.htm EX-99.D.3: MUTUAL NON-DISCLOSURE AGREEMENT\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (the “Agreement”), effective April 3, 2008 (the “Effective Date”), is between Magic\nHat Brewing Company & Performing Arts Center, Inc., a Vermont corporation (“Company”), and PYRAMID BREWERIES INC., a Washington\ncorporation (“Pyramid”). Pyramid and the Company are sometimes referred to in this Agreement individually as a “Party” and collectively as the\n“Parties”.\nWHEREAS, Pyramid is a reporting company with the Securities and Exchange Commission and files reports and proxy materials under the\nSecurities Exchange Act of 1934, which are publicly available.\nWHEREAS, the Parties wish to exchange certain nonpublic confidential business information for purposes of engaging in preliminary\ndiscussions regarding and evaluating a possible strategic merger, acquisition or business combination between the Parties (the “Business\nPurpose”).\nNOW THEREFORE, the Parties agree as follows:\n1. Definition of Confidential Information. The term “Confidential Information” means any and all information that is or has been received\nby either Party (the “Recipient”) from the other Party (the “Disclosing Party”), or which the Recipient has had access to, during the four (4)-\nmonth period commencing on the Effective Date (the “Term”), and that is either (a) marked as “confidential,” “proprietary,” or such similar term,\nor (b) non-public information related to the Disclosing Party’s business, which the Receiving Party should reasonably know is confidential based\non the nature of such information. Without limiting the generality of the foregoing, Confidential Information shall include the following, whether\nin tangible or electronic form: business plans, customer database information, employee and independent contractor lists, internal reports and\ninvestigations, research and work in progress, source and object code, technical manuals, financial statements and projections, cost summaries\nand pricing formulae, algorithms, confidential filings with any international, federal or state agency, and all other information concerning\nmethods of doing business, ideas and inventions (whether or not patentable), and data that derives independent economic value, actual or\npotential, from not being generally known to persons who can obtain economic value from its disclosure or use that is the subject of reasonable\nefforts by the Company to maintain its secrecy.\n2. Excluded Information. Confidential Information shall not include any information that: (a) prior to its disclosure by the Disclosing Party\nis already lawfully and rightfully known by or available to the Recipient as evidenced by prior written records; (b) through no wrongful act, fault\nor negligence on the part of the Recipient is or hereafter becomes part of the public domain; (c) is lawfully received by the Recipient from a third\nparty without restriction and without breach of this agreement or any other agreement; (d) is approved for public release or use by written\nauthorization of the Disclosing Party; (e) the Recipient can demonstrate was independently developed by it without reference to the Disclosing\nParty’s Confidential Information; or (f) is disclosed pursuant to the requirement or request of a governmental agency or court of competent\njurisdiction to the extent such disclosure is required by a valid law, regulation or court order and sufficient notice is given by the Recipient to the\nDisclosing Party of any such requirement or request in order to permit the Disclosing Party to seek an appropriate protective order or exemption\nfrom such requirement or request.\n3. Non-Disclosure and Confidentiality. The Recipient shall not (a) use the Confidential Information except for the Business Purpose, or\n(b) disclose or make the Confidential Information available to any person or entity (other than Related Parties, as defined below) without the\nprior written consent of the Disclosing Party. Each Party shall take reasonable security precautions to protect the Confidential Information, at\nleast as strict as the precautions it takes to protect its own confidential and proprietary information of a similar nature. Without the prior written\nconsent of the Disclosing Party, the Recipient of Confidential Information shall restrict the disclosure and availability of Confidential\nInformation to Recipient’s financial, tax, or legal advisors, or to its directors, officers, or employees with a demonstrable need to know such\nConfidential Information (each, a “Related Party”, and, collectively, the “Related Parties”), provided that any such Related Party either agrees to\nbe bound by this Agreement or is already bound by confidentiality obligations no less restrictive than those in this Agreement. Each Party shall\nbe responsible for the breach of this Agreement by any Related Party. Neither Party shall use any Confidential Information received by it to\ndevelop a product or service which competes with or imitates products of the Disclosing Party or engage in reverse engineering to develop\nsimilar products or services using the Confidential Information (it being acknowledged and understood that both Parties are engaged in the\nbusiness of beer brewing and that competing beer products are regularly independently developed within the beer industry using the same or\nsimilar raw materials, processes and packaging). The Recipient shall prevent commingling of the Confidential Information with similar\ninformation or material of other third parties. The obligations of confidentiality and protection under this Agreement shall survive for three (3)\nyears following the expiration of the Term.\n4. Non-Solicitation. Other than through general employment listings and advertising or through the efforts of employment search firms, each\nParty shall not, during the Term of this Agreement and for one (1) year thereafter, directly or indirectly, solicit or hire any employee or\nindependent contractor of the other Party, or induce any such person to abandon their relationship with the other Party.\n5. No Warranty. THE CONFIDENTIAL INFORMATION IS PROVIDED “AS IS,” AND THE DISCLOSING PARTY HEREBY\nDISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE ACCURACY, SUFFICIENCY, SUITABILITY OR NON-\nINFRINGEMENT OF SUCH CONFIDENTIAL INFORMATION.\n6. No License or Obligations; Return of Confidential Information. This Agreement does not represent nor imply any agreement or\ncommitment to enter into any further business relationship. This Agreement does not create any agency or partnership relationship between the\nParties or authorize a Party to use the other Party’s name or trademarks. As between the Parties, all Confidential Information received by a\nRecipient shall remain the sole and exclusive property of the Disclosing Party. Upon written request by the Disclosing Party, the Recipient shall\nreturn to the Disclosing Party, or shall destroy in a manner satisfactory to the Disclosing Party, all tangible or electronic forms of Confidential\nInformation, including any and all copies of the Confidential Information or notes containing the Confidential Information, and shall provide a\nwritten certification to the Disclosing Party that all tangible forms of the Confidential Information have been returned or destroyed.\n7. Remedies for Breach. The Parties agree that money damages would be inadequate to remedy any breach of this Agreement. As a result, a\nnon-breaching party shall be entitled to seek, and a court of competent jurisdiction may grant, specific performance and\n2\ninjunctive or other equitable relief as a remedy for any breach of this Agreement. Such remedy shall be in addition to all other remedies,\nincluding money damages, available to a non-breaching party at law or in equity.\n8. Notices. Any notice given by one Party to the other under this Agreement shall be sent by registered mail, return receipt requested, or\nreputable overnight courier to the addresses listed below (or such address changed by the giving of like notice to the other Party), and shall be\ndeemed received upon actual receipt by the recipient Party.\n9. Governing Law; Attorneys’ Fees. This Agreement, including all matters of construction, validity and performance, shall be governed by,\nconstrued and enforced in accordance with the laws of the State of Washington, as applied to contracts made and to be fully performed in such\nstate, without regard to its conflict of law rules. The Parties consent to the jurisdiction of the state and federal courts located in New York, New\nYork. A prevailing Party shall be entitled to an award of its reasonable attorneys’ fees and costs arising out of this Agreement.\n10. Miscellaneous. This Agreement sets forth the entire agreement between the Parties hereto with respect to its subject matter, and any and\nall prior agreements, understandings or representations with respect to its subject matter are merged herein. This Agreement may be amended and\nany provision may be waived only by the written agreement of the Parties. The terms and conditions of this Agreement shall inure to the benefit\nof and be binding upon the respective successors and assigns of the Parties, provided that Confidential Information of the Disclosing Party may\nnot be assigned by the Recipient without the prior written consent of the Disclosing Party. If any provision of this Agreement is held by a court of\ncompetent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any\nway be effected, impaired or invalidated thereby. This Agreement may be executed in two or more counterparts or by other electronic means,\neach of which shall be deemed an original, and all of which together shall constitute one and the same instrument.\n3\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.\nPYRAMID BREWERIES INC.,\nMAGIC HAT BREWING COMPANY & PERFORMING\nARTS CENTER, INC.,\na Washington corporation\na Vermont corporation\nBy (signature):\nBy (signature):\nPrinted Name:\nPrinted Name:\nTitle:\nTitle:\nAddress:\n91 South Royal Brougham Way\nAddress:\n5 Bartlett Road\nSeattle, WA 98134\nSouth Burlington, VT 05403\nFax:\nFax:\n(802) 658-5788\n4
4b7c1756f55d051372f14e12a631c837.pdf	effective_date jurisdiction party term	EX-99.(E)(4) 3 d354024dex99e4.htm EXHIBIT (E)(4)\nExhibit (e)(4)\nLOGO\nGTSI CORP.\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) is dated and made effective this 24th day of February, 2012, by and between GTSI Corp.,\n(“GTSI”) with offices at 2553 Dulles View Drive, Suite 100, Herndon, Virginia 20171, and UNICOM Systems, Inc. (“Company”), with offices at\nUNICOM Plaza Suite 310, 15535 San Fernando Mission Boulevard, Mission Hills, California 91345;\nWHEREAS, the parties hereto wish to explore possible transactions between the parties, including, but not limited to, a possible business\ncombination, or acquisition of all or a portion of, or investment in, GTSI by the Company (the “Potential Transactions,”); and\nWHEREAS, GTSI is willing to disclose certain information, including, without limitation, non-public, confidential, and/or proprietary information,\nto Company for purposes of, and in connection with, an evaluation by Company of the Potential Transactions (the “Evaluation”);\nNOW, THEREFORE, the parties hereto agree as follows:\n1. For purposes of this Agreement, the term “Confidential Information” means the GTSI information which is disclosed to Company under this\nAgreement (including but not limited to information, technical data or know-how, regardless of form, proprietary or otherwise, maintained in\nconfidence by GTSI, including without limitation of the generality of the foregoing any information, pricing, technical data or know-how relating to\nGTSI’s research, operations, products, services, inventions, manufacturing processes, production techniques, purchasing, financial condition,\naccounting, assembly, distribution, engineering, marketing, merchandising and/or sales, which is disclosed by GTSI or on its behalf whether before,\non or after the date hereof, directly or indirectly, in writing, orally, or by drawings or inspection of parts or equipment, to Company or any of its\nemployees or agents) which is/are in written, graphic, recorded, photographic or any machine readable form (or oral information reduced to writing\nwithin 72 hours after disclosure to Company), and which, in any case, is/are conspicuously marked or otherwise labeled “Confidential”,\n“Proprietary”, “Sensitive” or in another manner indicating its confidential and/or proprietary nature or which, in the case of oral information, is\nspecifically identified at the time of disclosure as being confidential, proprietary or sensitive.\n2. (a) Company will use such Confidential Information for its own internal use only during the Evaluation and will not use such information to\ncompete with GTSI. Company shall use the same degree of care it uses to protect and safeguard the confidentiality of its own proprietary\ninformation to not disclose such Confidential Information to any person or persons inside Company, except those persons with a genuine need to\nknow, and in no event to persons outside Company. Company covenants that such degree of care is, at a minimum, reasonably designed to protect\nthe confidentiality of proprietary and confidential information.\n(b) Company will not be liable for disclosure of any such Confidential Information if the same: (i) was in the public domain at the time it was\ndisclosed; (ii) was known to Company prior to the time of disclosure; (iii) is disclosed with the prior written approval of GTSI; (iv) is or becomes\npublicly known through no wrongful act of Company; (v) is disclosed after two years from the termination or expiration of this Agreement;\n(vi) becomes known to Company from a source other than GTSI without breach of this Agreement by Company; (vii) is furnished by GTSI to others\nnot in a confidential relationship with GTSI without restrictions similar to those herein on the right of the receiving party to the use or disclosure of\nthe Confidential Information; (viii) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body.\n(c) In the event of a disclosure under subsection (b)(viii) above, Company will give GTSI written notice of such order or requirement as soon as\npracticable prior to disclosure of the Confidential Information.\n3. The parties acknowledge and agree that the other party would not have an adequate remedy at law and would be irreparably harmed in the event\nthat any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly,\neach party agrees that the other party will be entitled to injunctive relief to prevent breaches of this Agreement and to specifically enforce the terms\nand provisions hereof, in addition to any other remedy to which such party may be entitled, at law or equity.\n4. This Agreement is governed by and interpreted in accordance with the laws of the Commonwealth of Virginia. Any and all claims, controversies\nor disputes arising out of or in connection with this Agreement will be resolved in accordance with this Section. Virginia law shall apply unless the\nissue relates to Federal procurement regulations or statutes and in such case Federal procurement law as interpreted by the United States Boards of\nContract Appeals and the United States Court of Federal Claims may apply.\n5. The term of this Agreement is two (2) years from the effective date (“Term”), provided that the duty to protect the Confidential Information of the\nother party will be no less than two (2) years from the date of actual disclosure. Any claim a party has for breach of this Agreement must be filed\nwithin 1 year of GTSI’s first knowledge of the breach, and no later than 1 year after the termination of this Agreement.\n6. Confidential Information remains the property of the GTSI. No rights, licenses, trademarks, inventions, copyrights, patents, or other intellectual\nproperty rights are implied or granted under this Agreement, except to use the Confidential Information as provided in this Agreement.\nPage1of2\n7. Each party warrants that it has the right to disclose all Confidential Information that it discloses to the other party. Each party will indemnify and\ndefend the other from all third-party claims resulting from the negligent or wrongful disclosure by the indemnifying party of a third-party’s\nconfidential information. Otherwise, neither party makes any representation or warranty about the Confidential Information. Neither party will be\nliable for indirect, incidental, punitive, or consequential damages for any cause of action, whether in contract, tort, or otherwise, arising out of a\nbreach of this Agreement.\n8. No Duty to Negotiate. Each Party reserves the right, in the sole and absolute discretion of such party, to reject any and all proposals made by any\nother party concerning any Potential Transaction(s) and to terminate negotiations and discussions with the other party at any time.\n9. Each party will comply with the applicable United States export laws and regulations for any technical data exchanged under this Agreement.\n10. Each Party (i) is aware that the United States securities laws prohibit any person who has material, nonpublic information about a public\ncompany from purchasing or selling securities of that company, or from communicating that information to any other person under circumstances\nwhere it is reasonably foreseeable that such person is likely to purchase or sell those securities, (ii) is familiar with the Exchange Act, and (iii) shall\nnot use, nor cause any third party to use, any Information in contravention of the Exchange Act.\n11. This Agreement: (a) represents the parties’ entire understanding regarding Confidential Information, and supersedes any prior agreements or\ndiscussions, written or oral, regarding Confidential Information; (b) may be modified only by written amendment signed by the parties’ officers or\nauthorized designees; (c) is to be considered severable, and if any provision of this Agreement is illegal or unenforceable, the unaffected provisions\nwill remain in effect; (d) contains headings for reference only; these headings have no effect on any provision’s meaning; and (e) does not extend to\nany third-party beneficiaries. If either party fails to enforce any right or remedy under this Agreement, that failure is not a waiver of the right or\nremedy for any other breach or failure by the other party.\n12. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute\none and the same instrument. In the event the parties hereto execute this Agreement in the form of a facsimile or internet transmission, the parties\nagree promptly thereafter to execute identical non-facsimile counterparts dated as of the execution date of the facsimile or internet version.\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date\nfirst above-written.\nGTSI Corp.\nCompany: UNICOM Systems, Inc.\nBy: /s/ Sterling Phillips\nBy: /s/ Neil Watt\nPrint Name: Sterling Phillips\nPrint Name: Neil Watt, Esq.\nPrint Title: CEO\nPrint Title: Chief Financial Officer & Corporate Counsel\nDate:\n2/24/12\nDate:\nFebruary 24, 2012\nFor Notices\nFor Company\nGTSI Corp.\nAttn: Neil Watt\nAttn: Legal Department\nAddress:\nUNICOM Plaza Suite 310,\n15535 San Fernando Mission Boulevard\nMission Hills, California 91345\nAddress:\n2553 Dulles View Drive, Suite 100\nHerndon, VA 20171\nPage2of2	EX-99.(E)(4) 3 d354024dex99e4.htm EXHIBIT (E)(4)\nExhibit (e)(4)\n».LOGO\nGTSI CORP.\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) is dated and made effective this 24th day of February, 2012, by and between GTSI Corp.,\n(“GTSI”) with offices at 2553 Dulles View Drive, Suite 100, Herndon, Virginia 20171, and UNICOM Systems, Inc. (“Company”), with offices at\nUNICOM Plaza Suite 310, 15535 San Fernando Mission Boulevard, Mission Hills, California 91345;\nWHEREAS, the parties hereto wish to explore possible transactions between the parties, including, but not limited to, a possible business\ncombination, or acquisition of all or a portion of, or investment in, GTSI by the Company (the “Potential Transactions,”); and\nWHEREAS, GTSI is willing to disclose certain information, including, without limitation, non-public, confidential, and/or proprietary information,\nto Company for purposes of, and in connection with, an evaluation by Company of the Potential Transactions (the “Evaluation”);\nNOW, THEREFORE, the parties hereto agree as follows:\n1. For purposes of this Agreement, the term “Confidential Information” means the GTSI information which is disclosed to Company under this\nAgreement (including but not limited to information, technical data or know-how, regardless of form, proprietary or otherwise, maintained in\nconfidence by GTS], including without limitation of the generality of the foregoing any information, pricing, technical data or know-how relating to\nGTSI’s research, operations, products, services, inventions, manufacturing processes, production techniques, purchasing, financial condition,\naccounting, assembly, distribution, engineering, marketing, merchandising and/or sales, which is disclosed by GTSI or on its behalf whether before,\non or after the date hereof, directly or indirectly, in writing, orally, or by drawings or inspection of parts or equipment, to Company or any of its\nemployees or agents) which is/are in written, graphic, recorded, photographic or any machine readable form (or oral information reduced to writing\nwithin 72 hours after disclosure to Company), and which, in any case, is/are conspicuously marked or otherwise labeled “Confidential”,\n“Proprietary”, “Sensitive” or in another manner indicating its confidential and/or proprietary nature or which, in the case of oral information, is\nspecifically identified at the time of disclosure as being confidential, proprietary or sensitive.\n2. (a) Company will use such Confidential Information for its own internal use only during the Evaluation and will not use such information to\ncompete with GTSI. Company shall use the same degree of care it uses to protect and safeguard the confidentiality of its own proprietary\ninformation to not disclose such Confidential Information to any person or persons inside Company, except those persons with a genuine need to\nknow, and in no event to persons outside Company. Company covenants that such degree of care is, at a minimum, reasonably designed to protect\nthe confidentiality of proprietary and confidential information.\n(b) Company will not be liable for disclosure of any such Confidential Information if the same: (i) was in the public domain at the time it was\ndisclosed; (ii) was known to Company prior to the time of disclosure; (iii) is disclosed with the prior written approval of GTSI; (iv) is or becomes\npublicly known through no wrongful act of Company; (v) is disclosed after two years from the termination or expiration of this Agreement;\n(vi) becomes known to Company from a source other than GTSI without breach of this Agreement by Company; (vii) is furnished by GTSI to others\nnot in a confidential relationship with GTSI without restrictions similar to those herein on the right of the receiving party to the use or disclosure of\nthe Confidential Information; (viii) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body.\n(c) In the event of a disclosure under subsection (b)(viii) above, Company will give GTSI written notice of such order or requirement as soon as\npracticable prior to disclosure of the Confidential Information.\n3. The parties acknowledge and agree that the other party would not have an adequate remedy at law and would be irreparably harmed in the event\nthat any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly,\neach party agrees that the other party will be entitled to injunctive relief to prevent breaches of this Agreement and to specifically enforce the terms\nand provisions hereof, in addition to any other remedy to which such party may be entitled, at law or equity.\n4. This Agreement is governed by and interpreted in accordance with the laws of the Commonwealth of Virginia. Any and all claims, controversies\nor disputes arising out of or in connection with this Agreement will be resolved in accordance with this Section. Virginia law shall apply unless the\nissue relates to Federal procurement regulations or statutes and in such case Federal procurement law as interpreted by the United States Boards of\nContract Appeals and the United States Court of Federal Claims may apply.\n5. The term of this Agreement is two (2) years from the effective date (“Term”), provided that the duty to protect the Confidential Information of the\nother party will be no less than two (2) years from the date of actual disclosure. Any claim a party has for breach of this Agreement must be filed\nwithin 1 year of GTSTI’s first knowledge of the breach, and no later than 1 year after the termination of this Agreement.\n6. Confidential Information remains the property of the GTSI. No rights, licenses, trademarks, inventions, copyrights, patents, or other intellectual\nproperty rights are implied or granted under this Agreement, except to use the Confidential Information as provided in this Agreement.\nPage 1 of 2\n7. Each party warrants that it has the right to disclose all Confidential Information that it discloses to the other party. Each party will indemnify and\ndefend the other from all third-party claims resulting from the negligent or wrongful disclosure by the indemnifying party of a third-party’s\nconfidential information. Otherwise, neither party makes any representation or warranty about the Confidential Information. Neither party will be\nliable for indirect, incidental, punitive, or consequential damages for any cause of action, whether in contract, tort, or otherwise, arising out of a\nbreach of this Agreement.\n8. No Duty to Negotiate. Each Party reserves the right, in the sole and absolute discretion of such party, to reject any and all proposals made by any\nother party concerning any Potential Transaction(s) and to terminate negotiations and discussions with the other party at any time.\n9. Each party will comply with the applicable United States export laws and regulations for any technical data exchanged under this Agreement.\n10. Each Party (i) is aware that the United States securities laws prohibit any person who has material, nonpublic information about a public\ncompany from purchasing or selling securities of that company, or from communicating that information to any other person under circumstances\nwhere it is reasonably foreseeable that such person is likely to purchase or sell those securities, (ii) is familiar with the Exchange Act, and (iii) shall\nnot use, nor cause any third party to use, any Information in contravention of the Exchange Act.\n11. This Agreement: (a) represents the parties’ entire understanding regarding Confidential Information, and supersedes any prior agreements or\ndiscussions, written or oral, regarding Confidential Information; (b) may be modified only by written amendment signed by the parties’ officers or\nauthorized designees; (c) is to be considered severable, and if any provision of this Agreement is illegal or unenforceable, the unaffected provisions\nwill remain in effect; (d) contains headings for reference only; these headings have no effect on any provision’s meaning; and (e) does not extend to\nany third-party beneficiaries. If either party fails to enforce any right or remedy under this Agreement, that failure is not a waiver of the right or\nremedy for any other breach or failure by the other party.\n12. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute\none and the same instrument. In the event the parties hereto execute this Agreement in the form of a facsimile or internet transmission, the parties\nagree promptly thereafter to execute identical non-facsimile counterparts dated as of the execution date of the facsimile or internet version.\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date\nfirst above-written.\nGTSI Corp.\nBy: /s/ Sterling Phillips\nPrint Name: Sterling Phillips\nPrint Title: CEO\nDate: 2/24/12\nFor Notices\nGTSI Corp.\nAttn: Legal Department\nAddress:\n2553 Dulles View Drive, Suite 100\nHerndon, VA 20171\nCompany: UNICOM Systems, Inc.\nBy: /s/ Neil Watt\nPrint Name: Neil Watt, Esq.\nPrint Title: Chief Financial Officer & Corporate Counsel\nDate: February 24, 2012\nFor Company\nAttn: Neil Watt\nAddress:\nUNICOM Plaza Suite 310,\n15535 San Fernando Mission Boulevard\nMission Hills, California 91345\nPage 2 of 2	EX-99.(E)(4) 3 d354024dex99e4.htm EXHIBIT (E)(4)\nExhibit (e)(4)\nLOGo\nGTSI CORP.\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement ("Agreement") is dated and made effective this 24th day of February, 2012, by and between GTSI Corp.,\n("GTSI") with offices at 2553 Dulles View Drive, Suite 100, Herndon, Virginia 20171, and UNICOM Systems, Inc. ("Company"), with offices at\nUNICOM Plaza Suite 310, 15535 San Fernando Mission Boulevard, Mission Hills, California 91345;\nWHEREAS, the parties hereto wish to explore possible transactions between the parties, including, but not limited to, a possible business\ncombination, or acquisition of all or a portion of, or investment in, GTSI by the Company (the "Potential Transactions," and\nWHEREAS, GTSI is willing to disclose certain information, including, without limitation, non-public, confidential, and/or proprietary information,\nto Company for purposes of, and in connection with, an evaluation by Company of the Potential Transactions (the "Evaluation");\nNOW, THEREFORE, the parties hereto agree as follows:\n1. For purposes of this Agreement, the term "Confidential Information" means the GTSI information which is disclosed to Company under this\nAgreement (including but not limited to information, technical data or know-how, regardless of form, proprietary or otherwise, maintained in\nconfidence\nby\nGTSI,\nincluding\nwithout\nlimitation\nof\nthe\ngenerality\nof\nthe\nforegoing\nany\ninformation,\npricing,\ntechnical\ndata\nor\nknow-how\nrelating\nto\nGTSI's research, operations, products, services, inventions, manufacturing processes, production techniques, purchasing, financial condition,\naccounting, assembly, distribution, engineering, marketing, merchandising and/or sales, which is disclosed by GTSI or on its behalf whether before,\non or after the date hereof, directly or indirectly, in writing, orally, or by drawings or inspection of parts or equipment, to Company or any of its\nemployees or agents) which is/are in written, graphic, recorded, photographic or any machine readable form (or oral information reduced to writing\nwithin 72 hours after disclosure to Company), and which, in any case, is/are conspicuously marked or otherwise labeled "Confidential",\n"Proprietary", "Sensitive" or in another manner indicating its confidential and/or proprietary nature or which, in the case of oral information, is\nspecifically identified at the time of disclosure as being confidential, proprietary or sensitive.\n2.\n(a)\nCompany\nwill\nuse\nsuch\nConfidential\nInformation\nfor\nits\nown\ninternal\nuse\nonly\nduring\nthe\nEvaluation\nand\nwill\nnot\nuse\nsuch\ninformation\nto\ncompete with GTSI. Company shall use the same degree of care it uses to protect and safeguard the confidentiality of its own proprietary\ninformation to not disclose such Confidential Information to any person or persons inside Company, except those persons with a genuine need\nto\nknow, and in no event to persons outside Company. Company covenants that such degree of care is, at a minimum, reasonably designed to protect\nthe confidentiality of proprietary and confidential information.\n(b) Company will not be liable for disclosure of any such Confidential Information if the same: (i) was in the public domain at the time it was\ndisclosed; (ii) was known to Company prior to the time of disclosure; (iii) is disclosed with the prior written approval of GTSI; (iv) is or becomes\npublicly known through no wrongful act of Company; (v) is disclosed after two years from the termination or expiration of this Agreement;\n(vi) becomes known to Company from a source other than GTSI without breach of this Agreement by Company; (vii) is furnished by GTSI to others\nnot in a confidential relationship with GTSI without restrictions similar to those herein on the right of the receiving party to the use or disclosure of\nthe Confidential Information; (viii) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body.\n(c) In the event of a disclosure under subsection (b)(viii) above, Company will give GTSI written notice of such order or requirement as soon\nas\npracticable prior to disclosure of the Confidential Information.\n3. The parties acknowledge and agree that the other party would not have an adequate remedy at law and would be irreparably harmed in the event\nthat any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly,\neach party agrees that the other party will be entitled to injunctive relief to prevent breaches of this Agreement and to specifically enforce the terms\nand provisions hereof, in addition to any other remedy to which such party may be entitled, at law or equity.\n4. This Agreement is governed by and interpreted in accordance with the laws of the Commonwealth of Virginia. Any and all claims, controversies\nor disputes arising out of or in connection with this Agreement will be resolved in accordance with this Section. Virginia law shall apply unless the\nissue relates to Federal procurement regulations or statutes and in such case Federal procurement law as interpreted by the United States Boards\nof\nContract Appeals and the United States Court of Federal Claims may apply.\n5. The term of this Agreement is two (2) years from the effective date ("Term"), provided that the duty to protect the Confidential Information of the\nother party will be no less than two (2) years from the date of actual disclosure. Any claim a party has for breach of this Agreement must be filed\nwithin 1 year of GTSI's first knowledge of the breach, and no later than 1 year after the termination of this Agreement.\n6. Confidential Information remains the property of the GTSI. No rights, licenses, trademarks, inventions, copyrights, patents, or other intellectual\nproperty rights are implied or granted under this Agreement, except to use the Confidential Information as provided in this Agreement.\nPage 1 of 2\n7. Each party warrants that it has the right to disclose all Confidential Information that it discloses to the other party. Each party will indemnify and\ndefend the other from all third-party claims resulting from the negligent or wrongful disclosure by the indemnifying party of a third-party's\nconfidential information. Otherwise, neither party makes any representation or warranty about the Confidential Information. Neither party will\nbe\nliable for indirect, incidental, punitive, or consequential damages for any cause of action, whether in contract, tort, or otherwise, arising out of a\nbreach of this Agreement.\n8. No Duty to Negotiate. Each Party reserves the right, in the sole and absolute discretion of such party, to reject any and all proposals made by any\nother party concerning any Potential Transaction(s) and to terminate negotiations and discussions with the other party at any time.\n9. Each party will comply with the applicable United States export laws and regulations for any technical data exchanged under this Agreement.\n10. Each Party (i) is aware that the United States securities laws prohibit any person who has material, nonpublic information about a public\ncompany from purchasing or selling securities of that company, or from communicating that information to any other person under circumstances\nwhere it is reasonably foreseeable that such person is likely to purchase or sell those securities, (ii) is familiar with the Exchange Act, and (iii) shall\nnot use, nor cause any third party to use, any Information in contravention of the Exchange Act.\n11. This Agreement: (a) represents the parties' entire understanding regarding Confidential Information, and supersedes any prior agreements or\ndiscussions, written or oral, regarding Confidential Information; (b) may be modified only by written amendment signed by the parties' officers or\nauthorized designees; (c) is to be considered severable, and if any provision of this Agreement is illegal or unenforceable, the unaffected provisions\nwill remain in effect; (d) contains headings for reference only; these headings have no effect on any provision's meaning; and (e) does not extend to\nany third-party beneficiaries. If either party fails to enforce any right or remedy under this Agreement, that failure is not a waiver of the right or\nremedy for any other breach or failure by the other party.\n12. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute\none and the same instrument. In the event the parties hereto execute this Agreement in the form of a facsimile or internet transmission, the parties\nagree promptly thereafter to execute identical non-facsimile counterparts dated as of the execution date of the facsimile or internet version.\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date\nfirst above-written.\nGTSI Corp.\nCompany: UNICOM Systems, Inc.\nBy: /s/ Sterling Phillips\nBy: /s/ Neil Watt\nPrint Name: Sterling Phillips\nPrint Name: Neil Watt, Esg.\nPrint Title: CEO\nPrint Title: Chief Financial Officer & Corporate Counsel\nDate:\n2/24/12\nDate:\nFebruary. 24, 2012\nFor Company\nFor Notices\nGTSI Corp.\nAttn: Neil Watt\nAttn: Legal Department\nAddress:\nAddress:\nUNICOM Plaza Suite 310,\n2553 Dulles View Drive, Suite 100\n15535 San Fernando Mission Boulevard\nHerndon, VA 20171\nMission Hills, California 91345\nPage 2 of 2	EX-99.(E)(4) 3 d354024dex99e4.htm EXHIBIT (E)(4)\nExhibit (e)(4)\nLOGO\nGTSI CORP.\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) is dated and made effective this 24th day of February, 2012, by and between GTSI Corp.,\n(“GTSI”) with offices at 2553 Dulles View Drive, Suite 100, Herndon, Virginia 20171, and UNICOM Systems, Inc. (“Company”), with offices at\nUNICOM Plaza Suite 310, 15535 San Fernando Mission Boulevard, Mission Hills, California 91345;\nWHEREAS, the parties hereto wish to explore possible transactions between the parties, including, but not limited to, a possible business\ncombination, or acquisition of all or a portion of, or investment in, GTSI by the Company (the “Potential Transactions,”); and\nWHEREAS, GTSI is willing to disclose certain information, including, without limitation, non-public, confidential, and/or proprietary information,\nto Company for purposes of, and in connection with, an evaluation by Company of the Potential Transactions (the “Evaluation”);\nNOW, THEREFORE, the parties hereto agree as follows:\n1. For purposes of this Agreement, the term “Confidential Information” means the GTSI information which is disclosed to Company under this\nAgreement (including but not limited to information, technical data or know-how, regardless of form, proprietary or otherwise, maintained in\nconfidence by GTSI, including without limitation of the generality of the foregoing any information, pricing, technical data or know-how relating to\nGTSI’s research, operations, products, services, inventions, manufacturing processes, production techniques, purchasing, financial condition,\naccounting, assembly, distribution, engineering, marketing, merchandising and/or sales, which is disclosed by GTSI or on its behalf whether before,\non or after the date hereof, directly or indirectly, in writing, orally, or by drawings or inspection of parts or equipment, to Company or any of its\nemployees or agents) which is/are in written, graphic, recorded, photographic or any machine readable form (or oral information reduced to writing\nwithin 72 hours after disclosure to Company), and which, in any case, is/are conspicuously marked or otherwise labeled “Confidential”,\n“Proprietary”, “Sensitive” or in another manner indicating its confidential and/or proprietary nature or which, in the case of oral information, is\nspecifically identified at the time of disclosure as being confidential, proprietary or sensitive.\n2. (a) Company will use such Confidential Information for its own internal use only during the Evaluation and will not use such information to\ncompete with GTSI. Company shall use the same degree of care it uses to protect and safeguard the confidentiality of its own proprietary\ninformation to not disclose such Confidential Information to any person or persons inside Company, except those persons with a genuine need to\nknow, and in no event to persons outside Company. Company covenants that such degree of care is, at a minimum, reasonably designed to protect\nthe confidentiality of proprietary and confidential information.\n(b) Company will not be liable for disclosure of any such Confidential Information if the same: (i) was in the public domain at the time it was\ndisclosed; (ii) was known to Company prior to the time of disclosure; (iii) is disclosed with the prior written approval of GTSI; (iv) is or becomes\npublicly known through no wrongful act of Company; (v) is disclosed after two years from the termination or expiration of this Agreement;\n(vi) becomes known to Company from a source other than GTSI without breach of this Agreement by Company; (vii) is furnished by GTSI to others\nnot in a confidential relationship with GTSI without restrictions similar to those herein on the right of the receiving party to the use or disclosure of\nthe Confidential Information; (viii) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body.\n(c) In the event of a disclosure under subsection (b)(viii) above, Company will give GTSI written notice of such order or requirement as soon as\npracticable prior to disclosure of the Confidential Information.\n3. The parties acknowledge and agree that the other party would not have an adequate remedy at law and would be irreparably harmed in the event\nthat any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly,\neach party agrees that the other party will be entitled to injunctive relief to prevent breaches of this Agreement and to specifically enforce the terms\nand provisions hereof, in addition to any other remedy to which such party may be entitled, at law or equity.\n4. This Agreement is governed by and interpreted in accordance with the laws of the Commonwealth of Virginia. Any and all claims, controversies\nor disputes arising out of or in connection with this Agreement will be resolved in accordance with this Section. Virginia law shall apply unless the\nissue relates to Federal procurement regulations or statutes and in such case Federal procurement law as interpreted by the United States Boards of\nContract Appeals and the United States Court of Federal Claims may apply.\n5. The term of this Agreement is two (2) years from the effective date (“Term”), provided that the duty to protect the Confidential Information of the\nother party will be no less than two (2) years from the date of actual disclosure. Any claim a party has for breach of this Agreement must be filed\nwithin 1 year of GTSI’s first knowledge of the breach, and no later than 1 year after the termination of this Agreement.\n6. Confidential Information remains the property of the GTSI. No rights, licenses, trademarks, inventions, copyrights, patents, or other intellectual\nproperty rights are implied or granted under this Agreement, except to use the Confidential Information as provided in this Agreement.\nPage1of2\n7. Each party warrants that it has the right to disclose all Confidential Information that it discloses to the other party. Each party will indemnify and\ndefend the other from all third-party claims resulting from the negligent or wrongful disclosure by the indemnifying party of a third-party’s\nconfidential information. Otherwise, neither party makes any representation or warranty about the Confidential Information. Neither party will be\nliable for indirect, incidental, punitive, or consequential damages for any cause of action, whether in contract, tort, or otherwise, arising out of a\nbreach of this Agreement.\n8. No Duty to Negotiate. Each Party reserves the right, in the sole and absolute discretion of such party, to reject any and all proposals made by any\nother party concerning any Potential Transaction(s) and to terminate negotiations and discussions with the other party at any time.\n9. Each party will comply with the applicable United States export laws and regulations for any technical data exchanged under this Agreement.\n10. Each Party (i) is aware that the United States securities laws prohibit any person who has material, nonpublic information about a public\ncompany from purchasing or selling securities of that company, or from communicating that information to any other person under circumstances\nwhere it is reasonably foreseeable that such person is likely to purchase or sell those securities, (ii) is familiar with the Exchange Act, and (iii) shall\nnot use, nor cause any third party to use, any Information in contravention of the Exchange Act.\n11. This Agreement: (a) represents the parties’ entire understanding regarding Confidential Information, and supersedes any prior agreements or\ndiscussions, written or oral, regarding Confidential Information; (b) may be modified only by written amendment signed by the parties’ officers or\nauthorized designees; (c) is to be considered severable, and if any provision of this Agreement is illegal or unenforceable, the unaffected provisions\nwill remain in effect; (d) contains headings for reference only; these headings have no effect on any provision’s meaning; and (e) does not extend to\nany third-party beneficiaries. If either party fails to enforce any right or remedy under this Agreement, that failure is not a waiver of the right or\nremedy for any other breach or failure by the other party.\n12. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute\none and the same instrument. In the event the parties hereto execute this Agreement in the form of a facsimile or internet transmission, the parties\nagree promptly thereafter to execute identical non-facsimile counterparts dated as of the execution date of the facsimile or internet version.\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date\nfirst above-written.\nGTSI Corp.\nCompany: UNICOM Systems, Inc.\nBy: /s/ Sterling Phillips\nBy: /s/ Neil Watt\nPrint Name: Sterling Phillips\nPrint Name: Neil Watt, Esq.\nPrint Title: CEO\nPrint Title: Chief Financial Officer & Corporate Counsel\nDate:\n2/24/12\nDate:\nFebruary 24, 2012\nFor Notices\nFor Company\nGTSI Corp.\nAttn: Neil Watt\nAttn: Legal Department\nAddress:\nUNICOM Plaza Suite 310,\n15535 San Fernando Mission Boulevard\nMission Hills, California 91345\nAddress:\n2553 Dulles View Drive, Suite 100\nHerndon, VA 20171\nPage2of2
4ef511f31db8409c73e5c4e72d2c2b5f.pdf	effective_date jurisdiction party term	LOGO\nConfidentiality and Non-Disclosure Agreement\nThis NON-DISCLOSURE AGREEMENT (“Agreement”) is made effective as of the 29th day of Dec. 2006, by and between SUPERMICRO\nComputer, Inc., a California Corporation, (“herein “SUPERMICRO”) and Ablecom Technology Inc. to assure the protection and preservation of the\nconfidential, and/or proprietary nature of the information to be disclosed or made available between the parties in connection with certain\nnegotiation, discussions, or manufacturing contracts.\nWHEREAS, in order to pursue these negotiations, discussions, or manufacturing contracts, the parties have agreed to mutual disclosures of certain\ndata and other information which are of a proprietary and confidential nature (as defined in Paragraph 3 below and referred to herein as\n“Confidential Information”).\nNOW, THEREFORE, in reliance upon and consideration of the following undertakings, and for the other good and valuable consideration, the\nreceipt of which is hereby acknowledged, the parties to this Agreement hereby agree as follows:\nSubject to the limitation set forth in Paragraph 5, Confidential Information shall be deemed to include any information, roadmap, schematic diagram,\nGerber data, Bill of Material, process, technique, compound, library, method of synthesis, program, design, drawing, formula or test data relating to\nany research project, work in progress, development, engineering, manufacturing, marketing, servicing, financing or personal matter relating to the\ndisclosing party, its present or future products, sales, suppliers, distributors, customers, employees, investors, or business, whether in oral, written,\ngraphic, or electronic forms.\nThe term “Confidential Information” shall not be deemed to include information which, to the extent that the recipients of Confidential Information\ncan establish by competent written proof:\na.\nat the time of disclosure is in public domain;\nb.\nafter disclosure, became part of the public domain by publication or otherwise, except by (i) breach of this Agreement by the recipient or\n(ii) disclosure by any person or affiliated company to whom Confidential Information was disclosed under this Agreement;\nc.\nwas (i) in the recipient’s possession in documentary form at the time of disclosure by the disclosing party or (ii) subsequently and\nindependently developed by the recipient’s employee who had no knowledge of or access to the Confidential Information;\nd.\nrecipient shall receive from a third party who has the lawful right to disclose the Confidential Information and who shall not have\nobtained the Confidential Information either directly or indirectly from the disclosing party; or\ne.\ndisclosure is required by law or regulation.\nIn the event the Confidential Information is required to be disclosed pursuant to subsection (e), the party required to make disclosure shall notify the\nother to allow the party to assert whatever exclusions or exemptions may be available to it under such law or regulation.\nEach party shall maintain in trust and confidence and not to disclose to any third party or use for any unauthorized purpose any Confidential\nInformation received from the other party. Each party may use such Confidential Information only for the purpose of engaging in discussions\nrelating to a potential business relationship between the parties. The Confidential Information shall not be used for any purpose or in any manner that\nwould constitute a violation of any laws or regulations, including, without limitation, the import or export control laws of the United States. No other\nrights or license to trademarks, inventions, copyrights, or patents are implied or granted under this Agreement. Confidential Information supplied\nshall not be reproduced in any form.\nThe responsibilities of the parties are limited to using their reasonable and best efforts to protect the Confidential Information from unauthorized use\nor disclosure. Both parties shall advise their employees or agents who might have access to such Confidential Information of the confidential nature\nthereof. No Confidential Information shall be disclosed to any officer, employee, or agent of either party who does not have a need to know for such\ninformation.\nAll Confidential Information (including copies thereof) shall remain the property of the disclosing party, and shall be returned to the disclosing party\nafter the receiving party’s need has expired, or upon request of the disclosing party, and in any event, upon completion or termination of this\nAgreement.\nThis Agreement shall continue in full force and effect for so long as the parties continue to exchange Confidential Information. This Agreement may\nbe terminated any time upon ten (10) days’ written notice to the other party. The termination of this Agreement shall not relieve either party of\nprovisions hereof and shall survive the termination of this agreement for a period of seven (7) years from the date of such termination.\nThis agreement shall be governed by the laws of the State of California. Each party agrees to that the Confidential Information is subject to the\nexport and customs laws and regulations of the United States and any other applicable country and shall not export, re-export or transship, directly or\nindirectly, such information to any country without first obtaining proper governmental approval.\nNeither party shall reveal the fact that the Confidential Information has been disclosed pursuant to this Agreement. It is understood that disclosure\npursuant to this Agreement is not a public disclosure or sale or offer for sale of any product.\nThis Agreement contains the entire agreement of the parties and may not be changed, modified, amended, or supplemented except by written\ninstrument signed by both parties. The unenforceability of any provision on this Agreement shall not affect the enforceability of any other provision\nof this Agreement. Neither this Agreement nor the disclosure of any Confidential Information pursuant to this Agreement by any party shall restrict\nsuch party from disclosing any of its Confidential Information to any third party.\nEach party hereby acknowledges and agrees that in the event of any breach of this Agreement by the party, including, without limitation, the actual\nor threatened disclosure of a disclosing party’s Confidential Information without the prior, written consent of the disclosing party, the disclosing\nparty will suffer an irreparable injury, such that no remedy of law will afford it adequate protection against, or appropriate compensation for, such\ninjury. Accordingly, each party hereby agrees that the other party shall be entitled to specific performance of a receiving party’s obligations under\nthis Agreement, as well as such further injunctive relief may be granted by a court of competent jurisdiction.\nThis Agreement shall remain in effect for a period no less than three years from the above date.\nAGREED TO AS OF THE FIRST DATE ABOVE:\nSuper Micro Computer, Inc.\nCompany\nAddress\n980 Rock Avenue\nSan Jose, CA 95131\nSigned by: /s/ Howard Hideshima\nSigned by: /s/ Steve Liang\nName:\nHoward Hideshima\nName:\nSteve Liang\nTitle:\nCFO\nTitle:\nPresident	».LOGO\nConfidentiality and Non-Disclosure Agreement\nThis NON-DISCLOSURE AGREEMENT (“Agreement”) is made effective as of the 29th day of Dec. 2006, by and between SUPERMICRO\nComputer, Inc., a California Corporation, (“herein “SUPERMICRO”) and Ablecom Technology Inc. to assure the protection and preservation of the\nconfidential, and/or proprietary nature of the information to be disclosed or made available between the parties in connection with certain\nnegotiation, discussions, or manufacturing contracts.\nWHEREAS, in order to pursue these negotiations, discussions, or manufacturing contracts, the parties have agreed to mutual disclosures of certain\ndata and other information which are of a proprietary and confidential nature (as defined in Paragraph 3 below and referred to herein as\n“Confidential Information”).\nNOW, THEREFORE, in reliance upon and consideration of the following undertakings, and for the other good and valuable consideration, the\nreceipt of which is hereby acknowledged, the parties to this Agreement hereby agree as follows:\nSubject to the limitation set forth in Paragraph 5, Confidential Information shall be deemed to include any information, roadmap, schematic diagram,\nGerber data, Bill of Material, process, technique, compound, library, method of synthesis, program, design, drawing, formula or test data relating to\nany research project, work in progress, development, engineering, manufacturing, marketing, servicing, financing or personal matter relating to the\ndisclosing party, its present or future products, sales, suppliers, distributors, customers, employees, investors, or business, whether in oral, written,\ngraphic, or electronic forms.\nThe term “Confidential Information” shall not be deemed to include information which, to the extent that the recipients of Confidential Information\ncan establish by competent written proof:\na.  at the time of disclosure is in public domain;\nb.  after disclosure, became part of the public domain by publication or otherwise, except by (i) breach of this Agreement by the recipient or\n(ii) disclosure by any person or affiliated company to whom Confidential Information was disclosed under this Agreement;\nc.  was (i) in the recipient’s possession in documentary form at the time of disclosure by the disclosing party or (ii) subsequently and\nindependently developed by the recipient’s employee who had no knowledge of or access to the Confidential Information;\nd.  recipient shall receive from a third party who has the lawful right to disclose the Confidential Information and who shall not have\nobtained the Confidential Information either directly or indirectly from the disclosing party; or\ne.  disclosure is required by law or regulation.\nIn the event the Confidential Information is required to be disclosed pursuant to subsection (e), the party required to make disclosure shall notify the\nother to allow the party to assert whatever exclusions or exemptions may be available to it under such law or regulation.\nEach party shall maintain in trust and confidence and not to disclose to any third party or use for any unauthorized purpose any Confidential\nInformation received from the other party. Each party may use such Confidential Information only for the purpose of engaging in discussions\nrelating to a potential business relationship between the parties. The Confidential Information shall not be used for any purpose or in any manner that\nwould constitute a violation of any laws or regulations, including, without limitation, the import or export control laws of the United States. No other\nrights or license to trademarks, inventions, copyrights, or patents are implied or granted under this Agreement. Confidential Information supplied\nshall not be reproduced in any form.\nThe responsibilities of the parties are limited to using their reasonable and best efforts to protect the Confidential Information from unauthorized use\nor disclosure. Both parties shall advise their employees or agents who might have access to such Confidential Information of the confidential nature\nthereof. No Confidential Information shall be disclosed to any officer, employee, or agent of either party who does not have a need to know for such\ninformation.\nAll Confidential Information (including copies thereof) shall remain the property of the disclosing party, and shall be returned to the disclosing party\nafter the receiving party’s need has expired, or upon request of the disclosing party, and in any event, upon completion or termination of this\nAgreement.\nThis Agreement shall continue in full force and effect for so long as the parties continue to exchange Confidential Information. This Agreement may\nbe terminated any time upon ten (10) days’ written notice to the other party. The termination of this Agreement shall not relieve either party of\nprovisions hereof and shall survive the termination of this agreement for a period of seven (7) years from the date of such termination.\nThis agreement shall be governed by the laws of the State of California. Each party agrees to that the Confidential Information is subject to the\nexport and customs laws and regulations of the United States and any other applicable country and shall not export, re-export or transship, directly or\nindirectly, such information to any country without first obtaining proper governmental approval.\nNeither party shall reveal the fact that the Confidential Information has been disclosed pursuant to this Agreement. It is understood that disclosure\npursuant to this Agreement is not a public disclosure or sale or offer for sale of any product.\nThis Agreement contains the entire agreement of the parties and may not be changed, modified, amended, or supplemented except by written\ninstrument signed by both parties. The unenforceability of any provision on this Agreement shall not affect the enforceability of any other provision\nof this Agreement. Neither this Agreement nor the disclosure of any Confidential Information pursuant to this Agreement by any party shall restrict\nsuch party from disclosing any of its Confidential Information to any third party.\nEach party hereby acknowledges and agrees that in the event of any breach of this Agreement by the party, including, without limitation, the actual\nor threatened disclosure of a disclosing party’s Confidential Information without the prior, written consent of the disclosing party, the disclosing\nparty will suffer an irreparable injury, such that no remedy of law will afford it adequate protection against, or appropriate compensation for, such\ninjury. Accordingly, each party hereby agrees that the other party shall be entitled to specific performance of a receiving party’s obligations under\nthis Agreement, as well as such further injunctive relief may be granted by a court of competent jurisdiction.\nThis Agreement shall remain in effect for a period no less than three years from the above date.\nAGREED TO AS OF THE FIRST DATE ABOVE:\nSuper Micro Computer, Inc. Company\nAddress\n980 Rock Avenue\nSan Jose, CA 95131\nSigned by: /s/ Howard Hideshima Signed by: /s/ Steve Liang\nName: Howard Hideshima Name: Steve Liang\nTitle: CFO Title: President	LoGo\nConfidentiality and Non-Disclosure Agreement\nThis NON-DISCLOSURE AGREEMENT ("Agreement") is made effective as of the 29th day of Dec. 2006, by and between SUPERMICRO\nComputer,\nInc., a California Corporation, ("herein "SUPERMICRO") and Ablecom Technology Inc. to assure the protection and preservation of the\nconfidential, and/or proprietary nature of the information to be disclosed or made available between the parties in connection with certain\nnegotiation, discussions, or manufacturing contracts.\nWHEREAS, in order to pursue these negotiations, discussions, or manufacturing contracts, the parties have agreed to mutual disclosures of certain\ndata and other information which are of a proprietary and confidential nature (as defined in Paragraph 3 below and referred to herein as\n"Confidential Information").\nNOW, THEREFORE, in reliance upon and consideration of the following undertakings, and for the other good and valuable consideration, the\nreceipt of which is hereby acknowledged, the parties to this Agreement hereby agree as follows:\nSubject to the limitation set forth in Paragraph 5, Confidential Information shall be deemed to include any information, roadmap, schematic diagram,\nGerber data, Bill of Material, process, technique, compound, library, method of synthesis, program, design, drawing, formula or test data relating to\nany research project, work in progress, development, engineering, manufacturing, marketing, servicing, financing or personal matter relating to the\ndisclosing party, its present or future products, sales, suppliers, distributors, customers, employees, investors, or business, whether in oral, written,\ngraphic, or electronic forms.\nThe term "Confidential Information" shall not be deemed to include information which, to the extent that the recipients of Confidential Information\ncan establish by competent written proof:\na.\nat the time of disclosure is in public domain;\nb. after disclosure, became part of the public domain by publication or otherwise, except by (i) breach of this Agreement by the recipient or\n(ii) disclosure by any person or affiliated company to whom Confidential Information was disclosed under this Agreement;\nC.\nwas (i) in the recipient's possession in documentary form at the time of disclosure by the disclosing party or (ii) subsequently and\nindependently developed by the recipient's employee who had no knowledge of or access to the Confidential Information;\nd.\nrecipient shall receive from a third party who has the lawful right to disclose the Confidentia Information and who shall not have\nobtained the Confidential Information either directly or indirectly from the disclosing party; or\ne.\ndisclosure is required by law or regulation.\nIn the event the Confidential Information is required to be disclosed pursuant to subsection (e), the party required to make disclosure shall notify the\nother to allow the party to assert whatever exclusions or exemptions may be available to it under such law or regulation.\nEach party shall maintain in trust and confidence and not to disclose to any third party or use for any unauthorized purpose any Confidential\nInformation\nreceived\nfrom\nthe\nother\nparty.\nEach\nparty\nmay\nuse\nsuch\nConfidential\nInformation\nonly\nfor\nthe\npurpose\nof\nengaging\nin\ndiscussions\nrelating to a potential business relationship between the parties The Confidential Information shall not be used for any purpose or in any manner that\nwould constitute a violation of any laws or regulations, including, without limitation, the import or export control laws of the United States. No other\nrights or license to trademarks, inventions, copyrights, or patents are implied or granted under this Agreement. Confidential Information supplied\nshall not be reproduced in any form.\nThe\nresponsibilities\nof\nthe\nparties\nare\nlimited\nto\nusing\ntheir\nreasonable\nand\nbest\nefforts\nto\nprotect\nthe\nConfidential\nInformation\nfrom\nunauthorized\nuse\nor disclosure. Both parties shall advise their employees or agents who might have access to such Confidential Information of the confidential nature\nthereof. No Confidential Information shall be disclosed to any officer, employee, or agent of either party who does not have a need to know for such\ninformation.\nAll Confidential Information (including copies thereof) shall remain the property of the disclosing party, and shall be returned to the disclosing party\nafter the receiving party's need has expired, or upon request of the disclosing party, and in any event, upon completion or termination of this\nAgreement.\nThis Agreement shall continue in full force and effect for so long as the parties continue to exchange Confidential Information. This Agreement may\nbe terminated any time upon ten (10) days' written notice to the other party. The termination of this Agreement shall not relieve either party of\nprovisions hereof and shall survive the termination of this agreement for a period of seven (7) years from the date of such termination.\nThis agreement shall be governed by the laws of the State of California. Each party agrees to that the Confidential Information is subject to the\nexport and customs laws and regulations of the United States and any other applicable country and shall not export, re-export or transship, directly\nor\nindirectly, such information to any country without first obtaining proper governmental approval.\nNeither party shall reveal the fact that the Confidential Information has been disclosed pursuant to this Agreement. It is understood that disclosure\npursuant to this Agreement is not a public disclosure or sale or offer for sale of any product.\nThis Agreement contains the entire agreement of the parties and may not be changed, modified, amended, or supplemented except by written\ninstrument signed by both parties. The unenforceability of any provision on this Agreement shall not affect the enforceability of any other provision\nof this Agreement. Neither this Agreement nor the disclosure of any Confidential Information pursuant to this Agreement by any party shall restrict\nsuch party from disclosing any of its Confidential Information to any third party.\nEach party hereby acknowledges and agrees that in the event of any breach of this Agreement by the party, including, without limitation, the actual\nor threatened disclosure of a disclosing party's Confidential Information without the prior, written consent of the disclosing party, the disclosing\nparty will suffer an irreparable injury, such that no remedy of law will afford it adequate protection against, or appropriate compensation for, such\ninjury. Accordingly, each party hereby agrees that the other party shall be entitled to specific performance of a receiving party's obligations under\nthis Agreement, as well as such further injunctive relief may be granted by a court of competent jurisdiction.\nThis Agreement shall remain in effect for a period no less than three years from the above date.\nAGREED TO AS OF THE FIRST DATE ABOVE:\nSuper Micro Computer, Inc.\nCompany\nAddress\n980 Rock Avenue\nSan Jose, CA 95131\nSigned by: /s/ Howard Hideshima\nSigned by: /s/ Steve Liang\nName:\nHoward Hideshima\nName:\nSteve Liang\nTitle:\nCFO\nTitle:\nPresident	LOGO\nConfidentiality and Non-Disclosure Agreement\nThis NON-DISCLOSURE AGREEMENT (“Agreement”) is made effective as of the 29th day of Dec. 2006, by and between SUPERMICRO\nComputer, Inc., a California Corporation, (“herein “SUPERMICRO”) and Ablecom Technology Inc. to assure the protection and preservation of the\nconfidential, and/or proprietary nature of the information to be disclosed or made available between the parties in connection with certain\nnegotiation, discussions, or manufacturing contracts.\nWHEREAS, in order to pursue these negotiations, discussions, or manufacturing contracts, the parties have agreed to mutual disclosures of certain\ndata and other information which are of a proprietary and confidential nature (as defined in Paragraph 3 below and referred to herein as\n“Confidential Information”).\nNOW, THEREFORE, in reliance upon and consideration of the following undertakings, and for the other good and valuable consideration, the\nreceipt of which is hereby acknowledged, the parties to this Agreement hereby agree as follows:\nSubject to the limitation set forth in Paragraph 5, Confidential Information shall be deemed to include any information, roadmap, schematic diagram,\nGerber data, Bill of Material, process, technique, compound, library, method of synthesis, program, design, drawing, formula or test data relating to\nany research project, work in progress, development, engineering, manufacturing, marketing, servicing, financing or personal matter relating to the\ndisclosing party, its present or future products, sales, suppliers, distributors, customers, employees, investors, or business, whether in oral, written,\ngraphic, or electronic forms.\nThe term “Confidential Information” shall not be deemed to include information which, to the extent that the recipients of Confidential Information\ncan establish by competent written proof:\na.\nat the time of disclosure is in public domain;\nb.\nafter disclosure, became part of the public domain by publication or otherwise, except by (i) breach of this Agreement by the recipient or\n(ii) disclosure by any person or affiliated company to whom Confidential Information was disclosed under this Agreement;\nc.\nwas (i) in the recipient’s possession in documentary form at the time of disclosure by the disclosing party or (ii) subsequently and\nindependently developed by the recipient’s employee who had no knowledge of or access to the Confidential Information;\nd.\nrecipient shall receive from a third party who has the lawful right to disclose the Confidential Information and who shall not have\nobtained the Confidential Information either directly or indirectly from the disclosing party; or\ne.\ndisclosure is required by law or regulation.\nIn the event the Confidential Information is required to be disclosed pursuant to subsection (e), the party required to make disclosure shall notify the\nother to allow the party to assert whatever exclusions or exemptions may be available to it under such law or regulation.\nEach party shall maintain in trust and confidence and not to disclose to any third party or use for any unauthorized purpose any Confidential\nInformation received from the other party. Each party may use such Confidential Information only for the purpose of engaging in discussions\nrelating to a potential business relationship between the parties. The Confidential Information shall not be used for any purpose or in any manner that\nwould constitute a violation of any laws or regulations, including, without limitation, the import or export control laws of the United States. No other\nrights or license to trademarks, inventions, copyrights, or patents are implied or granted under this Agreement. Confidential Information supplied\nshall not be reproduced in any form.\nThe responsibilities of the parties are limited to using their reasonable and best efforts to protect the Confidential Information from unauthorized use\nor disclosure. Both parties shall advise their employees or agents who might have access to such Confidential Information of the confidential nature\nthereof. No Confidential Information shall be disclosed to any officer, employee, or agent of either party who does not have a need to know for such\ninformation.\nAll Confidential Information (including copies thereof) shall remain the property of the disclosing party, and shall be returned to the disclosing party\nafter the receiving party’s need has expired, or upon request of the disclosing party, and in any event, upon completion or termination of this\nAgreement.\nThis Agreement shall continue in full force and effect for so long as the parties continue to exchange Confidential Information. This Agreement may\nbe terminated any time upon ten (10) days’ written notice to the other party. The termination of this Agreement shall not relieve either party of\nprovisions hereof and shall survive the termination of this agreement for a period of seven (7) years from the date of such termination.\nThis agreement shall be governed by the laws of the State of California. Each party agrees to that the Confidential Information is subject to the\nexport and customs laws and regulations of the United States and any other applicable country and shall not export, re-export or transship, directly or\nindirectly, such information to any country without first obtaining proper governmental approval.\nNeither party shall reveal the fact that the Confidential Information has been disclosed pursuant to this Agreement. It is understood that disclosure\npursuant to this Agreement is not a public disclosure or sale or offer for sale of any product.\nThis Agreement contains the entire agreement of the parties and may not be changed, modified, amended, or supplemented except by written\ninstrument signed by both parties. The unenforceability of any provision on this Agreement shall not affect the enforceability of any other provision\nof this Agreement. Neither this Agreement nor the disclosure of any Confidential Information pursuant to this Agreement by any party shall restrict\nsuch party from disclosing any of its Confidential Information to any third party.\nEach party hereby acknowledges and agrees that in the event of any breach of this Agreement by the party, including, without limitation, the actual\nor threatened disclosure of a disclosing party’s Confidential Information without the prior, written consent of the disclosing party, the disclosing\nparty will suffer an irreparable injury, such that no remedy of law will afford it adequate protection against, or appropriate compensation for, such\ninjury. Accordingly, each party hereby agrees that the other party shall be entitled to specific performance of a receiving party’s obligations under\nthis Agreement, as well as such further injunctive relief may be granted by a court of competent jurisdiction.\nThis Agreement shall remain in effect for a period no less than three years from the above date.\nAGREED TO AS OF THE FIRST DATE ABOVE:\nSuper Micro Computer, Inc.\nCompany\nAddress\n980 Rock Avenue\nSan Jose, CA 95131\nSigned by: /s/ Howard Hideshima\nSigned by: /s/ Steve Liang\nName:\nHoward Hideshima\nName:\nSteve Liang\nTitle:\nCFO\nTitle:\nPresident
5020ad373c18782f749b78e7c6ffedad.pdf	effective_date jurisdiction party term	EX-99.1 2 a12-17284_1ex99d1.htm EX-99.1\nExhibit 99.1\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into this 30th day of July, 2012, by and among HF\nFinancial Corp., a Delaware corporation (along with its affiliates, the “Company”), and Jacobs Asset Management, L.L .C . (the “Recipient” or\n“JAM”). The Company and the Recipient are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties.”\nRECITALS\nA.\nThe Company desires to exchange views and information with JAM, its largest shareholder.\nB.\nThe Company intends to provide JAM access to certain non-public, confidential or proprietary information concerning the\nCompany.\nC.\nIn order to induce the Company to provide access to the Confidential Information (as hereinafter defined), the Recipient\nhereby agrees to be bound by the terms and conditions of this Agreement.\nNOW, THEREFORE, in consideration of the mutual promises and covenants set forth, and for other good and valuable consideration,\nthe receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:\nARTICLE I\nDEFINITIONS\nSection 1.1\nCertain Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms used in this\nAgreement shall be construed to have the meanings set forth or referenced below:\nThe term “Confidential Information” refers to (i) all business or financial information (including business plans, budgets, forecasts and\nfinancial projections) of the Company or its subsidiaries (or of others having business relationships with the Company), or concerning the Matter,\nwhether or not marked or otherwise identified as confidential or proprietary, (ii) any other information or materials marked or designated as\n“confidential” or “proprietary” by the Company at the time of its disclosure to the Recipient and (iii) any other information or materials that the\nCompany maintains as confidential or that is proprietary to the Company, the nature of which or the circumstances surrounding the disclosure of\nwhich would indicate to a reasonable person that such information or materials are confidential or proprietary. The foregoing information and\nmaterials shall be “Confidential Information” whether evidenced, transferred or transmitted in writing, orally, visually, electronically or by any\nother means, and whether disclosed before or after the date of this Agreement. “Confidential Information” shall also include all Derivative\nMaterials.\nNotwithstanding anything to the contrary in this Agreement, “Confidential Information” shall not include information that (A) is or\nbecomes generally available to the public other than\nas a result of a breach of this Agreement by the Recipient; or (B) is or becomes available to the Recipient on a non-confidential basis from any\nsource other than the Company or its Representatives, which source has represented to the Recipient (and that the Recipient reasonably believes\nafter due inquiry) that such source is entitled to disclose such information without the Recipient being bound by any obligation of confidentiality,\nprovided that upon the Recipient becoming aware that such information is Confidential Information that the source was not entitled to disclose,\nthis Agreement shall thereafter apply to such Confidential Information.\nThe term “Derivative Materials” refers to all summaries, analyses, compilations, data, studies or other documents prepared by the\nRecipient (i) containing, or based in whole or in part on, any Confidential Information provided by the Company or its Representatives, or\n(ii) reflecting the Recipient’s review of the Company or the Recipient’s interest in the Matter.\nThe term “Person” refers to any natural person, corporation, limited liability company, partnership, trust or other legal entity.\nThe term “Representatives” refers to a Person’s directors, officers, employees, attorneys, accountants, consultants, financial advisors\nand other agents and representatives.\nThe term “Recipient” shall include (i) the Recipient, (ii) its affiliates, subsidiaries, and divisions, (iii) any Person that directly or\nindirectly, through intermediaries or otherwise, controls or owns a controlling interest in the Recipient and (iv) the Representatives of any of the\nforegoing Persons.\nARTICLE II\nCONFIDENTIALITY\nSection 2.1\nNon-Disclosure and Non-Use Covenants. As a condition to the Company’s disclosure of the Confidential\nInformation to the Recipient, the Recipient hereby covenants and agrees that all Confidential Information will be kept confidential by the\nRecipient and will not, without the prior written consent of the Company, be disclosed by the Recipient, in any manner whatsoever, in whole or\nin part, and will not be used by the Recipient, directly or indirectly, for any purpose other than facilitating discussion with the Company.\nMoreover, the Recipient agrees to transmit the Confidential Information to only those Representatives who need to know the Confidential\nInformation for the purpose of facilitating the Recipient’s discussion with the Company and who are informed of the confidential nature of the\nConfidential Information and the terms of this Agreement. The Recipient hereby acknowledges that it is aware, and the Recipient agrees that it\nwill advise its Representatives who are informed as to the matters which are the subject of this Agreement, that (i) the Confidential Information\nbeing furnished may contain or may itself be material, non-public information concerning the Company, and (ii) securities laws in the United\nStates prohibit any person who has received material, non-public information concerning the Company or the matters which are the subject of\nthis Agreement from purchasing or selling securities of the Company or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. The Recipient agrees to not\nengage, directly or indirectly, in transactions in Company securities while in possession of Confidential\n2\nInformation, and further agrees that is will be responsible for its compliance with federal and state securities laws. The Recipient will be\nresponsible for any breach of this Agreement by the Recipient or by its Representatives.\nSection 2.2\nConfidentiality of Discussions. The Recipient will not, without the prior written consent of the Company, disclose\nthe status of any discussions between the Parties, except as may be required by law or by the rules of any recognized stock exchange and then, if\ncircumstances permit, only with prompt advance written notice to the Company. Any disclosure made pursuant to the prior sentence shall be no\nmore extensive than is necessary to meet the minimum requirement imposed on the Person making such disclosure.\nSection 2.3\nCompelled Disclosure. In the event that the Recipient is requested (by oral questions, interrogatories, requests for\ninformation or documents, subpoena, civil investigate demand or similar process) to disclose any part of the Confidential Information, the\nRecipient shall notify the Company promptly of such request(s), and the documents requested thereby, so that the Company may seek an\nappropriate protective order and/or waive in writing the Recipient’s obligation not to disclose the Confidential Information. If, in the absence of\na protective order or the receipt of a waiver hereunder, the Recipient is nonetheless compelled to disclose all or part of the Confidential\nInformation or else stand liable for contempt or suffer other censure or penalty from any tribunal or governmental or similar authority, the\nRecipient may disclose such portion of the Confidential Information required to be disclosed without liability hereunder; provided, however, that\nthe Recipient shall deliver to the Company written notice of the Confidential Information to be disclosed as far in advance of its disclosure as is\npracticable, and shall use commercially reasonable efforts (at the Company’s expense) to obtain an order or other reliable assurance that\nconfidential treatment will be accorded to such portion of the Confidential Information required to be disclosed. Notwithstanding the foregoing,\nthe Recipient may disclose the Confidential Information to any regulatory agency in the normal course of an examination, audit or investigation\ninvolving the Recipient.\nSection 2.4\nDocument Disposition. The Confidential Information (except for Derivative Materials), and all copies thereof, will\nremain the absolute property of the Company and will be returned to the Company or destroyed (and such destruction confirmed in writing by an\nofficer of the Recipient) without retaining any copies thereof immediately upon the Company’s request. Derivative Materials will be\nimmediately destroyed at the request of the Company and such destruction will be confirmed to the Company in writing by an officer of the\nRecipient.\nSection 2.5\nDisclaimers. The Recipient acknowledges that neither the Company nor any of its Representatives makes any\nrepresentation or warranty as to the accuracy or completeness of the Confidential Information. The Recipient agrees that neither the Company\nnor any of its Representatives shall have any liability to the Recipient as a result of their reliance on the Confidential Information. The Recipient\nhereby agrees that in no event will the Recipient have or assert any claims whatsoever against the Company or any of the Company’s\nRepresentatives relating to or in any way connected with the subject matter of this Agreement.\n3\nSection 2.6\nDesignated Representatives. The Recipient shall have no discussion, correspondence or other contact with the\nCompany or any of its employees, customers or suppliers concerning the Matter except with “Designated Representatives” of the Company.\n“Designated Representatives” shall mean the Chairman of the Board of Directors of the Company and persons designated by him.\nSection 2.7\nSurvival. The restrictions imposed on the disclosure of Confidential Information shall continue until the lesser of\nsuch time as the information disclosed hereunder is no longer Confidential Information and one (1) year from the date first written above,\nprovided, that no such termination shall relieve Recipient from any liability relating to any prior breach of this Agreement.\nARTICLE III\nCOVENANT OF THE COMPANY\nSection 3.1\nInformation and Access. The Company will provide JAM access to certain non-public, confidential or proprietary\ninformation about the Company (the “Confidential Information”) and receive and consider JAM’s input on the financial services industry, market\nconditions and trends and the Company’s operational performance, opportunities and direction.\nARTICLE IV\nTERM AND TERMINATION\nSection 4.1\nTerm. Except as set forth in Article II, this Agreement shall terminate upon the earlier of (i) the Company’s 2012\nAnnual Meeting of Shareholders or (ii) the Company’s receipt of the notice required under the Company’s bylaws from JAM or its affiliates\nrequired to nominate a director for election at a meeting of the Company’s shareholders.\nARTICLE V\nMISCELLANEOUS\nSection 5.1\nDisclosure of Agreement. The parties contemplate that JAM will file with the SEC an amendment to its Schedule\n13D with respect to the Company attaching this Agreement and that the Company will file with the SEC a current report on Form 8-K attaching\nthis Agreement.\nSection 5.2\nCompliance with Securities Laws. As of the date hereof and during the Term of the Agreement, JAM is and will\nremain in compliance with all applicable state and federal securities laws with regard to its investment in the Company and its rights and\nresponsibilities under this Agreement, including but not limited to, the Securities Act of 1933, the Securities Exchange Act of 1934, and the\nrules and regulations promulgated thereunder.\nSection 5.3\nCompliance with Banking Laws. As of the date hereof and during the Term of the Agreement, JAM is and will\nremain in compliance with all applicable banking laws with regard to its investment in the Company and its rights and responsibilities under this\nAgreement, including but not limited to, the Bank Holding Company Act of 1956, the National Bank Act, the Federal Deposit Insurance Act, the\nBank Merger Act, the Change in Bank Control\n4\nAct and the Federal Reserve Board, Office of Comptroller of the Currency and Federal Deposit Insurance Corporation regulations thereunder.\nSection 5.4\nRemedies. The Recipient agrees that due to the nature of this Agreement and the Confidential Information, money\ndamages would not be a sufficient remedy for any breach of this Agreement by the Recipient and that the Company shall be entitled to seek\nspecific performance, injunctive and/or other equitable relief as a remedy for any such breach. Such remedy shall not be deemed to be the\nexclusive remedy of the Company for any breach by the Recipient of this Agreement, but shall be in addition to all other remedies available to\nthe Company at law or in equity. The Recipient hereby waives any requirement for the securing or posting of any bond in connection with such\nremedy.\nSection 5.5\nExpenses. The Parties will pay their own expenses with respect to this Agreement.\nSection 5.6\nSeverability. In the event that any one or more of the provisions contained in this Agreement, or the application\nthereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any\nsuch provision in every other respect and of the remaining provisions contained in this Agreement shall not be in any way impaired thereby, it\nbeing intended that all of the rights and privileges of the Parties hereto shall be enforceable to the fullest extent permitted by law. If any court\ndetermines that any of the provisions of this Agreement, or any part thereof, are unenforceable because of the duration or scope of such\nprovision, the duration or scope of such provision, as the case may be, shall be reduced so that such provision becomes enforceable and, in its\nreduced form, such provision shall then be enforceable and shall be enforced.\nSection 5.7\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws of the State of\nDelaware applicable to agreements made and to be performed within such state, without giving effect to any choice of law principles.\nSection 5.8\nMiscellaneous. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter\nhereof and it replaces and supersedes all prior agreements between the Parties. No provision of this Agreement may be waived or amended\nunless such waiver or amendment is in writing. No failure or delay by the Company in exercising any right, power or privilege under this\nAgreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right,\npower or privilege hereunder. This Agreement may not be assigned by the Recipient, by operation of law or otherwise, without the Company’s\nprior written consent.\nSection 5.9\nExecution. This Agreement may be executed in one or more counterparts, and by facsimile signatures, each of which\nshall be an original document, and all of which together shall constitute one and the same instrument.\n{Remainder of Page Intentionally Left Blank}\n5\nIN WITNESS WHEREOF, the Parties have entered into this Agreement as of the date first written above.\nCOMPANY:\nHF Financial Corp.\n/s/ Michael Vekich\nName: Michael Vekich\nTitle: Chairman\nRECIPIENT:\nJACOBS ASSET MANAGEMENT, LLC\n/s/ Sy Jacobs\nName: Sy Jacobs\nTitle: Managing Member\n6	EX-99.1 2 a12-17284_1ex99d1.htm EX-99.1\nExhibit 99.1\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into this 30th day of July, 2012, by and among HF\nFinancial Corp., a Delaware corporation (along with its affiliates, the “Company”), and Jacobs Asset Management, L.L.C. (the “Recipient” or\n“JAM”). The Company and the Recipient are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties.”\n \nRECITALS\nA. The Company desires to exchange views and information with JAM, its largest shareholder.\nB. The Company intends to provide JAM access to certain non-public, confidential or proprietary information concerning the\nCompany.\nC. In order to induce the Company to provide access to the Confidential Information (as hereinafter defined), the Recipient\nhereby agrees to be bound by the terms and conditions of this Agreement.\nNOW, THEREFORE, in consideration of the mutual promises and covenants set forth, and for other good and valuable consideration,\nthe receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:\nARTICLE 1\nDEFINITIONS\nSection 1.1 Certain Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms used in this\nAgreement shall be construed to have the meanings set forth or referenced below:\nThe term “Confidential Information” refers to (i) all business or financial information (including business plans, budgets, forecasts and\nfinancial projections) of the Company or its subsidiaries (or of others having business relationships with the Company), or concerning the Matter,\nwhether or not marked or otherwise identified as confidential or proprietary, (i) any other information or materials marked or designated as\n“confidential” or “proprietary” by the Company at the time of its disclosure to the Recipient and (iii) any other information or materials that the\nCompany maintains as confidential or that is proprietary to the Company, the nature of which or the circumstances surrounding the disclosure of\nwhich would indicate to a reasonable person that such information or materials are confidential or proprietary. The foregoing information and\nmaterials shall be “Confidential Information” whether evidenced, transferred or transmitted in writing, orally, visually, electronically or by any\nother means, and whether disclosed before or after the date of this Agreement. “Confidential Information” shall also include all Derivative\nMaterials.\nNotwithstanding anything to the contrary in this Agreement, “Confidential Information” shall not include information that (A) is or\nbecomes generally available to the public other than\n \nas a result of a breach of this Agreement by the Recipient; or (B) is or becomes available to the Recipient on a non-confidential basis from any\nsource other than the Company or its Representatives, which source has represented to the Recipient (and that the Recipient reasonably believes\nafter due inquiry) that such source is entitled to disclose such information without the Recipient being bound by any obligation of confidentiality,\nprovided that upon the Recipient becoming aware that such information is Confidential Information that the source was not entitled to disclose,\nthis Agreement shall thereafter apply to such Confidential Information.\nThe term “Derivative Materials” refers to all summaries, analyses, compilations, data, studies or other documents prepared by the\nRecipient (i) containing, or based in whole or in part on, any Confidential Information provided by the Company or its Representatives, or\n(ii) reflecting the Recipient’s review of the Company or the Recipient’s interest in the Matter.\nThe term “Person” refers to any natural person, corporation, limited liability company, partnership, trust or other legal entity.\n \nThe term “Representatives” refers to a Person’s directors, officers, employees, attorneys, accountants, consultants, financial advisors\nand other agents and representatives.\nThe term “Recipient” shall include (i) the Recipient, (ii) its affiliates, subsidiaries, and divisions, (iii) any Person that directly or\nindirectly, through intermediaries or otherwise, controls or owns a controlling interest in the Recipient and (iv) the Representatives of any of the\nforegoing Persons.\nARTICLE II\nCONFIDENTIALITY\nSection 2.1 Non-Disclosure and Non-Use Covenants. As a condition to the Company’s disclosure of the Confidential\nInformation to the Recipient, the Recipient hereby covenants and agrees that all Confidential Information will be kept confidential by the\nRecipient and will not, without the prior written consent of the Company, be disclosed by the Recipient, in any manner whatsoever, in whole or\nin part, and will not be used by the Recipient, directly or indirectly, for any purpose other than facilitating discussion with the Company.\nMoreover, the Recipient agrees to transmit the Confidential Information to only those Representatives who need to know the Confidential\nInformation for the purpose of facilitating the Recipient’s discussion with the Company and who are informed of the confidential nature of the\nConfidential Information and the terms of this Agreement. The Recipient hereby acknowledges that it is aware, and the Recipient agrees that it\nwill advise its Representatives who are informed as to the matters which are the subject of this Agreement, that (i) the Confidential Information\nbeing furnished may contain or may itself be material, non-public information concerning the Company, and (ii) securities laws in the United\nStates prohibit any person who has received material, non-public information concerning the Company or the matters which are the subject of\nthis Agreement from purchasing or selling securities of the Company or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. The Recipient agrees to not\nengage, directly or indirectly, in transactions in Company securities while in possession of Confidential\n2\n \nInformation, and further agrees that is will be responsible for its compliance with federal and state securities laws. The Recipient will be\nresponsible for any breach of this Agreement by the Recipient or by its Representatives.\nSection 2.2 Confidentiality of Discussions. The Recipient will not, without the prior written consent of the Company, disclose\nthe status of any discussions between the Parties, except as may be required by law or by the rules of any recognized stock exchange and then, if\ncircumstances permit, only with prompt advance written notice to the Company. Any disclosure made pursuant to the prior sentence shall be no\nmore extensive than is necessary to meet the minimum requirement imposed on the Person making such disclosure.\nSection 2.3 Compelled Disclosure. In the event that the Recipient is requested (by oral questions, interrogatories, requests for\ninformation or documents, subpoena, civil investigate demand or similar process) to disclose any part of the Confidential Information, the\nRecipient shall notify the Company promptly of such request(s), and the documents requested thereby, so that the Company may seek an\nappropriate protective order and/or waive in writing the Recipient’s obligation not to disclose the Confidential Information. If, in the absence of\na protective order or the receipt of a waiver hereunder, the Recipient is nonetheless compelled to disclose all or part of the Confidential\nInformation or else stand liable for contempt or suffer other censure or penalty from any tribunal or governmental or similar authority, the\nRecipient may disclose such portion of the Confidential Information required to be disclosed without liability hereunder; provided, however, that\nthe Recipient shall deliver to the Company written notice of the Confidential Information to be disclosed as far in advance of its disclosure as is\npracticable, and shall use commercially reasonable efforts (at the Company’s expense) to obtain an order or other reliable assurance that\nconfidential treatment will be accorded to such portion of the Confidential Information required to be disclosed. Notwithstanding the foregoing,\nthe Recipient may disclose the Confidential Information to any regulatory agency in the normal course of an examination, audit or investigation\ninvolving the Recipient.\nSection 2.4 Document Disposition. The Confidential Information (except for Derivative Materials), and all copies thereof, will\nremain the absolute property of the Company and will be returned to the Company or destroyed (and such destruction confirmed in writing by an\nofficer of the Recipient) without retaining any copies thereof immediately upon the Company’s request. Derivative Materials will be\nimmediately destroyed at the request of the Company and such destruction will be confirmed to the Company in writing by an officer of the\nRecipient.\nSection 2.5 Disclaimers. The Recipient acknowledges that neither the Company nor any of its Representatives makes any\nrepresentation or warranty as to the accuracy or completeness of the Confidential Information. The Recipient agrees that neither the Company\nnor any of its Representatives shall have any liability to the Recipient as a result of their reliance on the Confidential Information. The Recipient\nhereby agrees that in no event will the Recipient have or assert any claims whatsoever against the Company or any of the Company’s\nRepresentatives relating to or in any way connected with the subject matter of this Agreement.\n3\n \nSection 2.6 Designated Representatives. The Recipient shall have no discussion, correspondence or other contact with the\nCompany or any of its employees, customers or suppliers concerning the Matter except with “Designated Representatives” of the Company.\n“Designated Representatives” shall mean the Chairman of the Board of Directors of the Company and persons designated by him.\nSection 2.7 Survival. The restrictions imposed on the disclosure of Confidential Information shall continue until the lesser of\nsuch time as the information disclosed hereunder is no longer Confidential Information and one (1) year from the date first written above,\nprovided, that no such termination shall relieve Recipient from any liability relating to any prior breach of this Agreement.\nARTICLE III\nCOVENANT OF THE COMPANY\nSection 3.1 Information and Access. The Company will provide JAM access to certain non-public, confidential or proprietary\ninformation about the Company (the “Confidential Information”) and receive and consider JAM’s input on the financial services industry, market\nconditions and trends and the Company’s operational performance, opportunities and direction.\nARTICLE IV\nTERM AND TERMINATION\nSection 4.1 Term. Except as set forth in Article II, this Agreement shall terminate upon the earlier of (i) the Company’s 2012\nAnnual Meeting of Shareholders or (ii) the Company’s receipt of the notice required under the Company’s bylaws from JAM or its affiliates\nrequired to nominate a director for election at a meeting of the Company’s shareholders.\nARTICLE V\nMISCELLANEOUS\nSection 5.1 Disclosure of Agreement. The parties contemplate that JAM will file with the SEC an amendment to its Schedule\n13D with respect to the Company attaching this Agreement and that the Company will file with the SEC a current report on Form 8-K attaching\nthis Agreement.\nSection 5.2 Compliance with Securities Laws. As of the date hereof and during the Term of the Agreement, JAM is and will\nremain in compliance with all applicable state and federal securities laws with regard to its investment in the Company and its rights and\nresponsibilities under this Agreement, including but not limited to, the Securities Act of 1933, the Securities Exchange Act of 1934, and the\nrules and regulations promulgated thereunder.\nSection 5.3 Compliance with Banking L.aws. As of the date hereof and during the Term of the Agreement, JAM is and will\nremain in compliance with all applicable banking laws with regard to its investment in the Company and its rights and responsibilities under this\nAgreement, including but not limited to, the Bank Holding Company Act of 1956, the National Bank Act, the Federal Deposit Insurance Act, the\nBank Merger Act, the Change in Bank Control\n \n \nAct and the Federal Reserve Board, Office of Comptroller of the Currency and Federal Deposit Insurance Corporation regulations thereunder.\nSection 5.4 Remedies. The Recipient agrees that due to the nature of this Agreement and the Confidential Information, money\ndamages would not be a sufficient remedy for any breach of this Agreement by the Recipient and that the Company shall be entitled to seek\nspecific performance, injunctive and/or other equitable relief as a remedy for any such breach. Such remedy shall not be deemed to be the\nexclusive remedy of the Company for any breach by the Recipient of this Agreement, but shall be in addition to all other remedies available to\nthe Company at law or in equity. The Recipient hereby waives any requirement for the securing or posting of any bond in connection with such\nremedy.\nSection 5.5 Expenses. The Parties will pay their own expenses with respect to this Agreement.\nSection 5.6 Severability. In the event that any one or more of the provisions contained in this Agreement, or the application\nthereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any\nsuch provision in every other respect and of the remaining provisions contained in this Agreement shall not be in any way impaired thereby, it\nbeing intended that all of the rights and privileges of the Parties hereto shall be enforceable to the fullest extent permitted by law. If any court\ndetermines that any of the provisions of this Agreement, or any part thereof, are unenforceable because of the duration or scope of such\nprovision, the duration or scope of such provision, as the case may be, shall be reduced so that such provision becomes enforceable and, in its\nreduced form, such provision shall then be enforceable and shall be enforced.\nSection 5.7 Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of\nDelaware applicable to agreements made and to be performed within such state, without giving effect to any choice of law principles.\nSection 5.8 Miscellaneous. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter\nhereof and it replaces and supersedes all prior agreements between the Parties. No provision of this Agreement may be waived or amended\nunless such waiver or amendment is in writing. No failure or delay by the Company in exercising any right, power or privilege under this\nAgreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right,\npower or privilege hereunder. This Agreement may not be assigned by the Recipient, by operation of law or otherwise, without the Company’s\nprior written consent.\nSection 5.9 Execution. This Agreement may be executed in one or more counterparts, and by facsimile signatures, each of which\nshall be an original document, and all of which together shall constitute one and the same instrument.\n{Remainder of Page Intentionally Left Blank}\n5\n \nIN WITNESS WHEREOQF, the Parties have entered into this Agreement as of the date first written above.\nCOMPANY:\nHF Financial Corp.\n/s/ Michael Vekich\nName: Michael Vekich\nTitle:  Chairman\nRECIPIENT:\nJACOBS ASSET MANAGEMENT, LLC\n/s/ Sy Jacobs\nName: Sy Jacobs\nTitle:  Managing Member\n	EX-99.1 2 a12-17284_1ex99d1.htm EX-99.1\nExhibit 99.1\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (this "Agreement") is entered into this 30th day of July, 2012, by and among HF\nFinancial Corp., a Delaware corporation (along with its affiliates, the "Company."), and Jacobs Asset Management, L.L.C. (the "Recipient" or\n"JAM"). The Company and the Recipient are sometimes referred to in this Agreement individually as a "Party." and collectively as the "Parties."\nRECITALS\nA.\nThe Company desires to exchange views and information with JAM, its largest shareholder.\nB.\nThe Company intends to provide JAM access to certain non-public, confidential or proprietary information concerning the\nCompany.\nC.\nIn order to induce the Company to provide access to the Confidential Information (as hereinafter defined), the Recipient\nhereby agrees to be bound by the terms and conditions of this Agreement.\nNOW, THEREFORE, in consideration of the mutual promises and covenants set forth, and for other good and valuable consideration,\nthe receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:\nARTICLE I\nDEFINITIONS\nSection 1.1\nCertain Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms used in this\nAgreement shall be construed to have the meanings set forth or referenced below:\nThe\nterm "Confidential Information" refers to (i) all business or financial information (including business plans, budgets,\nforecasts\nand\nfinancia projections) of the Company or its subsidiaries (or of others having business relationships with the Company), or concerning the Matter,\nwhether or not marked or otherwise identified as confidential or proprietary, (ii) any other information or materials marked or designated as\n"confidential" or "proprietary" by the Company at the time of its disclosure to the Recipient and (iii) any other information or materials that the\nCompany maintains as confidential or that is proprietary to the Company, the nature of which or the circumstances surrounding the disclosure of\nwhich would indicate to a reasonable person that such information or materials are confidential or proprietary. The foregoing information and\nmaterials shall be "Confidential Information" whether evidenced, transferred or transmitted in writing, orally, visually, electronically or by any\nother means, and whether disclosed before or after the date of this Agreement. "Confidential Information" shall also include all Derivative\nMaterials.\nNotwithstanding anything to the contrary in this Agreement, "Confidential Information" shall not include information that (A) is or\nbecomes generally available to the public other than\nas a result of a breach of this Agreement by the Recipient; or (B) is or becomes available to the Recipient on a non-confidential basis from any\nsource\nother\nthan the Company or its Representatives, which source has represented to the Recipient (and that the Recipient reasonably believes\nafter due inquiry) that such source is entitled to disclose such information without the Recipient being bound by any obligation of confidentiality,\nprovided that upon the Recipient becoming aware that such information is Confidential Information that the source was not entitled to disclose,\nthis Agreement shall thereafter apply to such Confidential Information.\nThe term "Derivative Materials' refers to all summaries, analyses, compilations, data, studies or other documents prepared by the\nRecipient (i) containing, or based in whole or in part on, any Confidential Information provided by the Company or its Representatives, or\n(ii) reflecting the Recipient's review of the Company or the Recipient's interest in the Matter.\nThe term "Person" refers to any natural person, corporation, limited liability company, partnership, trust or other legal entity.\nThe term "Representatives" refers to a Person's directors, officers, employees, attorneys, accountants, consultants, financial advisors\nand other agents and representatives.\nThe term "Recipient" shall include (i) the Recipient, (ii) its affiliates, subsidiaries, and divisions, (iii) any Person that directly or\nindirectly, through intermediaries or otherwise, controls or owns a controlling interest in the Recipient and (iv) the Representatives of any of the\nforegoing Persons.\nARTICLE II\nCONFIDENTIALITY\nSection 2.1\nNon-Disclosure and Non-Use Covenants. As a condition to the Company's disclosure of the Confidential\nInformation to the Recipient, the Recipient hereby covenants and agrees that all Confidential Information will be kept confidential by the\nRecipient and will not, without the prior written consent of the Company, be disclosed by the Recipient, in any manner whatsoever, in whole or\nin\npart, and will not be used by the Recipient, directly or indirectly, for any purpose other than facilitating discussion with the Company.\nMoreover, the Recipient agrees to transmit the Confidential Information to only those Representatives who need to know the Confidential\nInformation for the purpose of facilitating the Recipient's discussion with the Company and who are informed of the confidential nature of the\nConfidential Information and the terms of this Agreement. The Recipient hereby acknowledges that it is aware, and the Recipient agrees that it\nwill advise its Representatives who are informed as to the matters which are the subject of this Agreement, that (i) the Confidential Information\nbeing furnished may contain or may itself be material, non-public information concerning the Company, and (ii) securities laws in the United\nStates prohibit any person who has received material, non-public information concerning the Company or the matters which are the subject of\nthis Agreement from purchasing or selling securities of the Company or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. The Recipient agrees to not\nengage, directly or indirectly, in transactions in Company securities while in possession of Confidential\n2\nInformation, and further agrees that is will be responsible for its compliance with federal and state securities laws. The Recipient will be\nresponsible for any breach of this Agreement by the Recipient or by its Representatives.\nSection 2.2\nConfidentiality of Discussions. The Recipient will not, without the prior written consent of the Company, disclose\nthe status of any discussions between the Parties, except as may be required by law or by the rules of any recognized stock exchange and then, if\ncircumstances permit, only with prompt advance written notice to the Company. Any disclosure made pursuant to the prior sentence shall be\nno\nmore extensive than is necessary to meet the minimum requirement imposed on the Person making such disclosure.\nSection 2.3\nCompelled Disclosure. In the event that the Recipient is requested (by oral questions, interrogatories, requests\nfor\ninformation or documents, subpoena, civil investigate demand or similar process) to disclose any part of the Confidential Information, the\nRecipient shall notify the Company promptly of such request(s), and the documents requested thereby, so that the Company may seek an\nappropriate protective order and/or waive in writing the Recipient's obligation not to disclose the Confidential Information. If, in the absence\nof\na protective order or the receipt of a waiver hereunder, the Recipient is nonetheless compelled to disclose all or part of the Confidential\nInformation or else stand liable for contempt or suffer other censure or penalty from any tribunal or governmental or similar authority, the\nRecipient may disclose such portion of the Confidential Information required to be disclosed without liability hereunder; provided, however, that\nthe Recipient shall deliver to the Company written notice of the Confidential Information to be disclosed as far in advance of its disclosure as\nis\npracticable, and shall use commercially reasonable efforts (at the Company's expense) to obtain an order or other reliable assurance that\nconfidential treatment will be accorded to such portion of the Confidential Information required to be disclosed. Notwithstanding the foregoing,\nthe Recipient may disclose the Confidential Information to any regulatory agency in the normal course of an examination, audit or investigation\ninvolving the Recipient.\nSection 2.4\nDocument Disposition. The Confidential Information (except for Derivative Materials), and all copies thereof, will\nremain the absolute property of the Company and will be returned to the Company or destroyed (and such destruction confirmed in writing by an\nofficer of the Recipient) without retaining any copies thereof immediately upon the Company's request. Derivative Materials will be\nimmediately destroyed at the request of the Company and such destruction will be confirmed to the Company in writing by an officer of the\nRecipient.\nSection 2.5\nDisclaimers. The Recipient acknowledges that neither the Company nor any of its Representatives makes\nany\nrepresentation or warranty as to the accuracy or completeness of the Confidential Information. The Recipient agrees that neither the Company\nnor any of its Representatives shall have any liability to the Recipient as a result of their reliance on the Confidential Information. The Recipient\nhereby agrees that in no event will the Recipient have or assert any claims whatsoever against the Company or any of the Company's\nRepresentatives relating to or in any way connected with the subject matter of this Agreement.\n3\nSection 2.6 Designated Representatives The Recipient shall have no discussion, correspondence or other contact with the\nCompany or any of its employees, customers or suppliers concerning the Matter except with "Designated Representatives" of the Company.\n"Designated Representatives" shall mean the Chairman of the Board of Directors of the Company and persons designated by him.\nSection 2.7\nSurvival. The restrictions imposed on the disclosure of Confidential Information shall continue until the\nlesser\nof\nsuch time as the information disclosed hereunder is no longer Confidential Information and one (1) year from the date first written above,\nprovided, that no such termination shall relieve Recipient from any liability relating to any prior breach of this Agreement.\nARTICLE III\nCOVENANT OF THE COMPANY\nSection 3.1\nInformation and Access. The Company will provide JAM access to certain non-public, confidential or proprietary\ninformation about the Company (the "Confidential Information") and receive and consider JAM's input on the financial services industry, market\nconditions and trends and the Company's operational performance, opportunities and direction.\nARTICLE IV\nTERM AND TERMINATION\nSection 4.1\nTerm. Except as set forth in Article II, this Agreement shall terminate upon the earlier of (i) the Company's 2012\nAnnual Meeting of Shareholders or (ii) the Company's receipt of the notice required under the Company's bylaws from JAM or its affiliates\nrequired to nominate a director for election at a meeting of the Company's shareholders.\nARTICLE V\nMISCELLANEOUS\nSection 5.1\nDisclosure of Agreement. The parties contemplate that JAM will file with the SEC an amendment to its Schedule\n13D with respect to the Company attaching this Agreement and that the Company will file with the SEC a current report on Form 8-K attaching\nthis Agreement.\nSection 5.2\nCompliance with Securities Laws. As of the date hereof and during the Term of the Agreement, JAM is and will\nremain in compliance with all applicable state and federal securities laws with regard to its investment in the Company and its rights and\nresponsibilities under this Agreement, including but not limited to, the Securities Act of 1933, the Securities Exchange Act of 1934, and the\nrules and regulations promulgated thereunder.\nSection 5.3 Compliance with Banking Laws. As of the date hereof and during the Term of the Agreement, JAM is and will\nremain in compliance with all applicable banking laws with regard to its investment in the Company and its rights and responsibilities under this\nAgreement, including but not limited to, the Bank Holding Company Act of 1956, the National Bank Act, the Federal Deposit Insurance Act, the\nBank Merger Act, the Change in Bank Control\n4\nAct and the Federal Reserve Board, Office of Comptroller of the Currency and Federal Deposit Insurance Corporation regulations thereunder.\nSection 5.4\nRemedies. The Recipient agrees that due to the nature of this Agreement and the Confidential Information, money\ndamages would not be a sufficient remedy for any breach of this Agreement by the Recipient and that the Company shall be entitled to seek\nspecific performance, injunctive and/or other equitable relief as a remedy for any such breach. Such remedy shall not be deemed to be the\nexclusive remedy of the Company for any breach by the Recipient of this Agreement, but shall be in addition to all other remedies available\nto\nthe Company at law or in equity. The Recipient hereby waives any requirement for the securing or posting of any bond in connection with such\nremedy.\nSection 5.5\nExpenses. The Parties will pay their own expenses with respect to this Agreement.\nSection 5.6\nSeverability.. In the event that any one or more of the provisions contained in this Agreement, or the application\nthereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any\nsuch provision in every other respect and of the remaining provisions contained in this Agreement shall not be in any way impaired thereby, it\nbeing intended that all of the rights and privileges of the Parties hereto shall be enforceable to the fullest extent permitted by law. If any court\ndetermines that any of the provisions of this Agreement, or any part thereof, are unenforceable because of the duration or scope of such\nprovision, the duration or scope of such provision, as the case may be, shall be reduced so that such provision becomes enforceable and, in its\nreduced form, such provision shall then be enforceable and shall be enforced.\nSection 5.7\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws of the State of\nDelaware applicable to agreements made and to be performed within such state, without giving effect to any choice of law principles.\nSection 5.8\nMiscellaneous. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter\nhereof and it replaces and supersedes all prior agreements between the Parties. No provision of this Agreement may be waived or amended\nunless such waiver or amendment is in writing. No failure or delay by the Company in exercising any right, power or privilege under this\nAgreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right,\npower or privilege hereunder. This Agreement may not be assigned by the Recipient, by operation of law or otherwise, without the Company's\nprior written consent.\nSection 5.9\nExecution. This Agreement may be executed in one or more counterparts, and by facsimile signatures, each of which\nshall be an original document, and all of which together shall constitute one and the same instrument.\n{Remainder of Page Intentionally Left Blank}\n5\nIN WITNESS WHEREOF, the Parties have entered into this Agreement as of the date first written above.\nCOMPANY:\nHF Financial Corp.\n/s/ Michael Vekich\nName: Michael Vekich\nTitle: Chairman\nRECIPIENT:\nJACOBS ASSET MANAGEMENT, LLC\n/s/ Sy Jacobs\nName: Sy Jacobs\nTitle:\nManaging Member\n6	EX-99.1 2 a12-17284_1ex99d1.htm EX-99.1\nExhibit 99.1\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into this 30th day of July, 2012, by and among HF\nFinancial Corp., a Delaware corporation (along with its affiliates, the “Company”), and Jacobs Asset Management, L.L .C . (the “Recipient” or\n“JAM”). The Company and the Recipient are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties.”\nRECITALS\nA.\nThe Company desires to exchange views and information with JAM, its largest shareholder.\nB.\nThe Company intends to provide JAM access to certain non-public, confidential or proprietary information concerning the\nCompany.\nC.\nIn order to induce the Company to provide access to the Confidential Information (as hereinafter defined), the Recipient\nhereby agrees to be bound by the terms and conditions of this Agreement.\nNOW, THEREFORE, in consideration of the mutual promises and covenants set forth, and for other good and valuable consideration,\nthe receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:\nARTICLE I\nDEFINITIONS\nSection 1.1\nCertain Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms used in this\nAgreement shall be construed to have the meanings set forth or referenced below:\nThe term “Confidential Information” refers to (i) all business or financial information (including business plans, budgets, forecasts and\nfinancial projections) of the Company or its subsidiaries (or of others having business relationships with the Company), or concerning the Matter,\nwhether or not marked or otherwise identified as confidential or proprietary, (ii) any other information or materials marked or designated as\n“confidential” or “proprietary” by the Company at the time of its disclosure to the Recipient and (iii) any other information or materials that the\nCompany maintains as confidential or that is proprietary to the Company, the nature of which or the circumstances surrounding the disclosure of\nwhich would indicate to a reasonable person that such information or materials are confidential or proprietary. The foregoing information and\nmaterials shall be “Confidential Information” whether evidenced, transferred or transmitted in writing, orally, visually, electronically or by any\nother means, and whether disclosed before or after the date of this Agreement. “Confidential Information” shall also include all Derivative\nMaterials.\nNotwithstanding anything to the contrary in this Agreement, “Confidential Information” shall not include information that (A) is or\nbecomes generally available to the public other than\nas a result of a breach of this Agreement by the Recipient; or (B) is or becomes available to the Recipient on a non-confidential basis from any\nsource other than the Company or its Representatives, which source has represented to the Recipient (and that the Recipient reasonably believes\nafter due inquiry) that such source is entitled to disclose such information without the Recipient being bound by any obligation of confidentiality,\nprovided that upon the Recipient becoming aware that such information is Confidential Information that the source was not entitled to disclose,\nthis Agreement shall thereafter apply to such Confidential Information.\nThe term “Derivative Materials” refers to all summaries, analyses, compilations, data, studies or other documents prepared by the\nRecipient (i) containing, or based in whole or in part on, any Confidential Information provided by the Company or its Representatives, or\n(ii) reflecting the Recipient’s review of the Company or the Recipient’s interest in the Matter.\nThe term “Person” refers to any natural person, corporation, limited liability company, partnership, trust or other legal entity.\nThe term “Representatives” refers to a Person’s directors, officers, employees, attorneys, accountants, consultants, financial advisors\nand other agents and representatives.\nThe term “Recipient” shall include (i) the Recipient, (ii) its affiliates, subsidiaries, and divisions, (iii) any Person that directly or\nindirectly, through intermediaries or otherwise, controls or owns a controlling interest in the Recipient and (iv) the Representatives of any of the\nforegoing Persons.\nARTICLE II\nCONFIDENTIALITY\nSection 2.1\nNon-Disclosure and Non-Use Covenants. As a condition to the Company’s disclosure of the Confidential\nInformation to the Recipient, the Recipient hereby covenants and agrees that all Confidential Information will be kept confidential by the\nRecipient and will not, without the prior written consent of the Company, be disclosed by the Recipient, in any manner whatsoever, in whole or\nin part, and will not be used by the Recipient, directly or indirectly, for any purpose other than facilitating discussion with the Company.\nMoreover, the Recipient agrees to transmit the Confidential Information to only those Representatives who need to know the Confidential\nInformation for the purpose of facilitating the Recipient’s discussion with the Company and who are informed of the confidential nature of the\nConfidential Information and the terms of this Agreement. The Recipient hereby acknowledges that it is aware, and the Recipient agrees that it\nwill advise its Representatives who are informed as to the matters which are the subject of this Agreement, that (i) the Confidential Information\nbeing furnished may contain or may itself be material, non-public information concerning the Company, and (ii) securities laws in the United\nStates prohibit any person who has received material, non-public information concerning the Company or the matters which are the subject of\nthis Agreement from purchasing or selling securities of the Company or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. The Recipient agrees to not\nengage, directly or indirectly, in transactions in Company securities while in possession of Confidential\n2\nInformation, and further agrees that is will be responsible for its compliance with federal and state securities laws. The Recipient will be\nresponsible for any breach of this Agreement by the Recipient or by its Representatives.\nSection 2.2\nConfidentiality of Discussions. The Recipient will not, without the prior written consent of the Company, disclose\nthe status of any discussions between the Parties, except as may be required by law or by the rules of any recognized stock exchange and then, if\ncircumstances permit, only with prompt advance written notice to the Company. Any disclosure made pursuant to the prior sentence shall be no\nmore extensive than is necessary to meet the minimum requirement imposed on the Person making such disclosure.\nSection 2.3\nCompelled Disclosure. In the event that the Recipient is requested (by oral questions, interrogatories, requests for\ninformation or documents, subpoena, civil investigate demand or similar process) to disclose any part of the Confidential Information, the\nRecipient shall notify the Company promptly of such request(s), and the documents requested thereby, so that the Company may seek an\nappropriate protective order and/or waive in writing the Recipient’s obligation not to disclose the Confidential Information. If, in the absence of\na protective order or the receipt of a waiver hereunder, the Recipient is nonetheless compelled to disclose all or part of the Confidential\nInformation or else stand liable for contempt or suffer other censure or penalty from any tribunal or governmental or similar authority, the\nRecipient may disclose such portion of the Confidential Information required to be disclosed without liability hereunder; provided, however, that\nthe Recipient shall deliver to the Company written notice of the Confidential Information to be disclosed as far in advance of its disclosure as is\npracticable, and shall use commercially reasonable efforts (at the Company’s expense) to obtain an order or other reliable assurance that\nconfidential treatment will be accorded to such portion of the Confidential Information required to be disclosed. Notwithstanding the foregoing,\nthe Recipient may disclose the Confidential Information to any regulatory agency in the normal course of an examination, audit or investigation\ninvolving the Recipient.\nSection 2.4\nDocument Disposition. The Confidential Information (except for Derivative Materials), and all copies thereof, will\nremain the absolute property of the Company and will be returned to the Company or destroyed (and such destruction confirmed in writing by an\nofficer of the Recipient) without retaining any copies thereof immediately upon the Company’s request. Derivative Materials will be\nimmediately destroyed at the request of the Company and such destruction will be confirmed to the Company in writing by an officer of the\nRecipient.\nSection 2.5\nDisclaimers. The Recipient acknowledges that neither the Company nor any of its Representatives makes any\nrepresentation or warranty as to the accuracy or completeness of the Confidential Information. The Recipient agrees that neither the Company\nnor any of its Representatives shall have any liability to the Recipient as a result of their reliance on the Confidential Information. The Recipient\nhereby agrees that in no event will the Recipient have or assert any claims whatsoever against the Company or any of the Company’s\nRepresentatives relating to or in any way connected with the subject matter of this Agreement.\n3\nSection 2.6\nDesignated Representatives. The Recipient shall have no discussion, correspondence or other contact with the\nCompany or any of its employees, customers or suppliers concerning the Matter except with “Designated Representatives” of the Company.\n“Designated Representatives” shall mean the Chairman of the Board of Directors of the Company and persons designated by him.\nSection 2.7\nSurvival. The restrictions imposed on the disclosure of Confidential Information shall continue until the lesser of\nsuch time as the information disclosed hereunder is no longer Confidential Information and one (1) year from the date first written above,\nprovided, that no such termination shall relieve Recipient from any liability relating to any prior breach of this Agreement.\nARTICLE III\nCOVENANT OF THE COMPANY\nSection 3.1\nInformation and Access. The Company will provide JAM access to certain non-public, confidential or proprietary\ninformation about the Company (the “Confidential Information”) and receive and consider JAM’s input on the financial services industry, market\nconditions and trends and the Company’s operational performance, opportunities and direction.\nARTICLE IV\nTERM AND TERMINATION\nSection 4.1\nTerm. Except as set forth in Article II, this Agreement shall terminate upon the earlier of (i) the Company’s 2012\nAnnual Meeting of Shareholders or (ii) the Company’s receipt of the notice required under the Company’s bylaws from JAM or its affiliates\nrequired to nominate a director for election at a meeting of the Company’s shareholders.\nARTICLE V\nMISCELLANEOUS\nSection 5.1\nDisclosure of Agreement. The parties contemplate that JAM will file with the SEC an amendment to its Schedule\n13D with respect to the Company attaching this Agreement and that the Company will file with the SEC a current report on Form 8-K attaching\nthis Agreement.\nSection 5.2\nCompliance with Securities Laws. As of the date hereof and during the Term of the Agreement, JAM is and will\nremain in compliance with all applicable state and federal securities laws with regard to its investment in the Company and its rights and\nresponsibilities under this Agreement, including but not limited to, the Securities Act of 1933, the Securities Exchange Act of 1934, and the\nrules and regulations promulgated thereunder.\nSection 5.3\nCompliance with Banking Laws. As of the date hereof and during the Term of the Agreement, JAM is and will\nremain in compliance with all applicable banking laws with regard to its investment in the Company and its rights and responsibilities under this\nAgreement, including but not limited to, the Bank Holding Company Act of 1956, the National Bank Act, the Federal Deposit Insurance Act, the\nBank Merger Act, the Change in Bank Control\n4\nAct and the Federal Reserve Board, Office of Comptroller of the Currency and Federal Deposit Insurance Corporation regulations thereunder.\nSection 5.4\nRemedies. The Recipient agrees that due to the nature of this Agreement and the Confidential Information, money\ndamages would not be a sufficient remedy for any breach of this Agreement by the Recipient and that the Company shall be entitled to seek\nspecific performance, injunctive and/or other equitable relief as a remedy for any such breach. Such remedy shall not be deemed to be the\nexclusive remedy of the Company for any breach by the Recipient of this Agreement, but shall be in addition to all other remedies available to\nthe Company at law or in equity. The Recipient hereby waives any requirement for the securing or posting of any bond in connection with such\nremedy.\nSection 5.5\nExpenses. The Parties will pay their own expenses with respect to this Agreement.\nSection 5.6\nSeverability. In the event that any one or more of the provisions contained in this Agreement, or the application\nthereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any\nsuch provision in every other respect and of the remaining provisions contained in this Agreement shall not be in any way impaired thereby, it\nbeing intended that all of the rights and privileges of the Parties hereto shall be enforceable to the fullest extent permitted by law. If any court\ndetermines that any of the provisions of this Agreement, or any part thereof, are unenforceable because of the duration or scope of such\nprovision, the duration or scope of such provision, as the case may be, shall be reduced so that such provision becomes enforceable and, in its\nreduced form, such provision shall then be enforceable and shall be enforced.\nSection 5.7\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws of the State of\nDelaware applicable to agreements made and to be performed within such state, without giving effect to any choice of law principles.\nSection 5.8\nMiscellaneous. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter\nhereof and it replaces and supersedes all prior agreements between the Parties. No provision of this Agreement may be waived or amended\nunless such waiver or amendment is in writing. No failure or delay by the Company in exercising any right, power or privilege under this\nAgreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right,\npower or privilege hereunder. This Agreement may not be assigned by the Recipient, by operation of law or otherwise, without the Company’s\nprior written consent.\nSection 5.9\nExecution. This Agreement may be executed in one or more counterparts, and by facsimile signatures, each of which\nshall be an original document, and all of which together shall constitute one and the same instrument.\n{Remainder of Page Intentionally Left Blank}\n5\nIN WITNESS WHEREOF, the Parties have entered into this Agreement as of the date first written above.\nCOMPANY:\nHF Financial Corp.\n/s/ Michael Vekich\nName: Michael Vekich\nTitle: Chairman\nRECIPIENT:\nJACOBS ASSET MANAGEMENT, LLC\n/s/ Sy Jacobs\nName: Sy Jacobs\nTitle: Managing Member\n6
503bf3d3c382b93016b28a53eba95a17.pdf	effective_date jurisdiction party term	EX-99.(D)(4) 9 ex99-d4.txt MUTUAL NON-DISCLOSURE AGREEMENT 1 Exhibit (d)(4) PIERCING PAGODA,\nINC. 3910 Adler Place Post Office Box 25007 Lehigh Valley, Pa 18002 MUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement, made as of March 28, 2000 (the Effective Date), by and between Piercing Pagoda, Inc., a Delaware\ncorporation (including its affiliates and their respective successors, transferees and permitted assigns, "PPI"), and the\nundersigned (including its affiliates and their respective successors, transferees and permitted assigns, "Company") in\nconnection with, our consideration of a possible business transaction (the "Stated Purpose") each party may disclose\ncertain of its proprietary and confidential information to the other party in order to facilitate discussion and analyses. As\na condition to the furnishing by one party (in such capacity, the "Disclosing Party") of such information as the Disclosing\nParty, in its sole and absolute discretion, may determine to furnish to the other party (in such capacity, the "Recipient"),\nthe parties hereto agree to comply with the terms and conditions set forth below. NOW, THEREFORE, in consideration\nof and reliance on the respective representations, warranties and covenants contained herein and intending to be legally\nbound hereby, the parties hereto agree as follows: 1. The Recipient shall take responsible steps to ensure that all\nConfidential Information of the Disclosing Party is kept confidential; provided, however, that such information may be\ndisclosed to those employees or agents of the Recipient who have a need to know such information, or to such other\nparty as may be agreed to by the Disclosing Party in writing, only if each such employee or party is informed by the\nRecipient of the confidential and proprietary nature of such information and of the confidentiality undertakings of the\nRecipient contained herein. The Recipient shall be responsible for any breach of this Agreement by its employees or\nagents. 2. As used herein, "reasonable steps" means the steps that the Recipient takes to protect its own, similar\nconfidential and proprietary information, which shall not be less than a reasonable standard of care. 3. As used herein\n"Confidential Information" means all proprietary or confidential information of the Disclosing Party, including but not\nlimited to Confidential Information regarding its products, suppliers, customers, technology, pricing, business plan,\nactivities or know-how, whether disclosed directly or indirectly, in writing (marked as Confidential Information), orally\nor by drawings or inspection of documents. 2 4. However, Confidential Information does not include any of the\nforegoing items: (i) prior to disclosure, is know to the public or becomes so known through no action of Recipient; (ii) is\nrequired to be disclosed pursuant to applicable laws, rules or regulations or governmental requirement or court order\n(provided, however, that the Recipient shall promptly advise the Disclosing Party of its notice of any such requirement or\norder); (iii) is already rightfully in the Recipient's possession at the time of disclosure, as evidenced by written records of\nthe Recipient; or (iv) is received by the Recipient from another person or entity who is not obligated to the Disclosing\nparty to keep the same confidential. 5. Neither party shall, without the other party's prior written consent (a) disclose to\nany person or entity (other than the persons employed by either party who are actively and directly participating in the\nStated Purpose) any information about the parties' discussions regarding the Stated Purpose or the terms, conditions or\nother facts relating thereto including the fact that discussions are taking place with respect thereto or the status thereof, or\nthe fact that the Confidential Information has been made available to either party, except to the extent that such\ndisclosure is required by applicable laws, rules or regulations or government requirement or court order (provided,\nhowever, that the Recipient shall promptly advise the Disclosing Party of its notice of any such requirement or order); or\n(b) use the Confidential Information for any purpose other than the Stated Purpose, without limiting the foregoing, the\nRecipient shall not trade in the securities of the Disclosing Party while in the possession of Confidential Information\nrelating to the Disclosing Party. 6. At the request of the Disclosing Party, the Recipient shall promptly return to the\nDisclosing Party all Confidential Information of the Disclosing Party in whatever medium, including any and all copies\nthereof. Such return (or, if authorized, destruction of Confidential Information) shall be confirmed in writing by the\nRecipient to the Disclosing Party. 7. Each party agrees that it would be impossible or inadequate to measure and\ncalculate the other party's damages from any breach of the covenants set forth in this Agreement. Accordingly, the\nparties agree that if either party breaches or threatens to breach any of such covenants, the non-breaching party will have\navailable, in addition to any other right or remedy available, the right to obtain an injunction from a court of competent\njurisdiction restraining such breach or threatened breach and to specific performance of any such provision of this\nAgreement. The parties further agree that no bond or other security shall be required in obtaining such equitable relief\nand each party hereby consents to the issuance of such injunction and to the ordering of specific performance. 2 3 8.\nEach party understands and acknowledges that the Disclosing Party is not making any representation or warranty as to\nthe accuracy or completeness of any Confidential Information furnished by or on behalf of the Disclosing Party (except\nto the extent and only to such effect as shall be expressly set forth in an executed and delivered definitive agreement\nbetween the parties to effect the Stated Purpose (the "Definitive Agreement")). Neither the Disclosing Party, its affiliates\nnor any of their respective officers, directors, employees or agents shall have any liability to the Recipient or any of its\nRepresentatives relating to or arising from the use of the Confidential Agreement. 9. Except as set forth in this\nAgreement, neither PPI nor Company shall have any liability or obligation of any nature whatsoever to the other party,\nnor any obligation to enter into a Definitive Agreement, negotiate to enter into a Definitive Agreement, or refrain from\nnegotiating similar agreements with other parties. 10. It is further understood and agreed that this Agreement may not be\namended except by an instrument signed by the party against whom enforcement is sought. This Agreement shall be\ngoverned by an interpreted in accordance with the laws of the Commonwealth of Pennsylvania, without giving effect to\nany conflict of law provisions. This Agreement shall become binding when any one or more counterparts hereof,\nindividually or taken together, shall bear the signatures of PPI and Company. This Agreement may be executed in two or\nmore counterparts, each of which shall be deemed to be an original as against any party whose signature appears thereon,\nbut all of which together shall constitute but one and the same instrument. 11. IN WITNESS WHEREOF, the\nundersigned have caused this Agreement to be duly executed effected as of the date first above written. PIERCING\nPAGODA, INC. ZALE CORPORATION By: /s/ John Eureyecko By: /s/ Alan P. Shor ----------------------------- ------------\n-- -- - -- - -- - -- - -- - -- - -- Name: John Eureyecko Name: Alan P. Shor Title: President and COO Title: Executive Vice President\nand Chief Operating Officer 3	EX-99.(D)(4) 9 ex99-d4.txt MUTUAL NON-DISCLOSURE AGREEMENT 1 Exhibit (d)(4) PIERCING PAGODA,\nINC. 3910 Adler Place Post Office Box 25007 Lehigh Valley, Pa 18002 MUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement, made as of March 28, 2000 (the Effective Date), by and between Piercing Pagoda, Inc., a Delaware\ncorporation (including its affiliates and their respective successors, transferees and permitted assigns, "PPI"), and the\nundersigned (including its affiliates and their respective successors, transferees and permitted assigns, "Company") in\nconnection with, our consideration of a possible business transaction (the "Stated Purpose") each party may disclose\ncertain of its proprietary and confidential information to the other party in order to facilitate discussion and analyses. As\na condition to the furnishing by one party (in such capacity, the "Disclosing Party") of such information as the Disclosing\nParty, in its sole and absolute discretion, may determine to furnish to the other party (in such capacity, the "Recipient"),\nthe parties hereto agree to comply with the terms and conditions set forth below. NOW, THEREFORE, in consideration\nof and reliance on the respective representations, warranties and covenants contained herein and intending to be legally\nbound hereby, the parties hereto agree as follows: 1. The Recipient shall take responsible steps to ensure that all\nConfidential Information of the Disclosing Party is kept confidential; provided, however, that such information may be\ndisclosed to those employees or agents of the Recipient who have a need to know such information, or to such other\nparty as may be agreed to by the Disclosing Party in writing, only if each such employee or party is informed by the\nRecipient of the confidential and proprietary nature of such information and of the confidentiality undertakings of the\nRecipient contained herein. The Recipient shall be responsible for any breach of this Agreement by its employees or\nagents. 2. As used herein, "reasonable steps" means the steps that the Recipient takes to protect its own, similar\nconfidential and proprietary information, which shall not be less than a reasonable standard of care. 3. As used herein\n"Confidential Information" means all proprietary or confidential information of the Disclosing Party, including but not\nlimited to Confidential Information regarding its products, suppliers, customers, technology, pricing, business plan,\nactivities or know-how, whether disclosed directly or indirectly, in writing (marked as Confidential Information), orally\nor by drawings or inspection of documents. 2 4. However, Confidential Information does not include any of the\nforegoing items: (i) prior to disclosure, is know to the public or becomes so known through no action of Recipient; (ii) is\nrequired to be disclosed pursuant to applicable laws, rules or regulations or governmental requirement or court order\n(provided, however, that the Recipient shall promptly advise the Disclosing Party of its notice of any such requirement or\norder); (iii) is already rightfully in the Recipient's possession at the time of disclosure, as evidenced by written records of\nthe Recipient; or (iv) is received by the Recipient from another person or entity who is not obligated to the Disclosing\nparty to keep the same confidential. 5. Neither party shall, without the other party's prior written consent (a) disclose to\nany person or entity (other than the persons employed by either party who are actively and directly participating in the\nStated Purpose) any information about the parties' discussions regarding the Stated Purpose or the terms, conditions or\nother facts relating thereto including the fact that discussions are taking place with respect thereto or the status thereof, or\nthe fact that the Confidential Information has been made available to either party, except to the extent that such\ndisclosure is required by applicable laws, rules or regulations or government requirement or court order (provided,\nhowever, that the Recipient shall promptly advise the Disclosing Party of its notice of any such requirement or order); or\n(b) use the Confidential Information for any purpose other than the Stated Purpose, without limiting the foregoing, the\nRecipient shall not trade in the securities of the Disclosing Party while in the possession of Confidential Information\nrelating to the Disclosing Party. 6. At the request of the Disclosing Party, the Recipient shall promptly return to the\nDisclosing Party all Confidential Information of the Disclosing Party in whatever medium, including any and all copies\nthereof. Such return (or, if authorized, destruction of Confidential Information) shall be confirmed in writing by the\nRecipient to the Disclosing Party. 7. Each party agrees that it would be impossible or inadequate to measure and\ncalculate the other party's damages from any breach of the covenants set forth in this Agreement. Accordingly, the\nparties agree that if either party breaches or threatens to breach any of such covenants, the non-breaching party will have\navailable, in addition to any other right or remedy available, the right to obtain an injunction from a court of competent\njurisdiction restraining such breach or threatened breach and to specific performance of any such provision of this\nAgreement. The parties further agree that no bond or other security shall be required in obtaining such equitable relief\nand each party hereby consents to the issuance of such injunction and to the ordering of specific performance. 2 3 8.\nEach party understands and acknowledges that the Disclosing Party is not making any representation or warranty as to\nthe accuracy or completeness of any Confidential Information furnished by or on behalf of the Disclosing Party (except\nto the extent and only to such effect as shall be expressly set forth in an executed and delivered definitive agreement\nbetween the parties to effect the Stated Purpose (the "Definitive Agreement")). Neither the Disclosing Party, its affiliates\nnor any of their respective officers, directors, employees or agents shall have any liability to the Recipient or any of its\nRepresentatives relating to or arising from the use of the Confidential Agreement. 9. Except as set forth in this\nAgreement, neither PPI nor Company shall have any liability or obligation of any nature whatsoever to the other party,\nnor any obligation to enter into a Definitive Agreement, negotiate to enter into a Definitive Agreement, or refrain from\nnegotiating similar agreements with other parties. 10. It is further understood and agreed that this Agreement may not be\namended except by an instrument signed by the party against whom enforcement is sought. This Agreement shall be\ngoverned by an interpreted in accordance with the laws of the Commonwealth of Pennsylvania, without giving effect to\nany conflict of law provisions. This Agreement shall become binding when any one or more counterparts hereof,\nindividually or taken together, shall bear the signatures of PPI and Company. This Agreement may be executed in two or\nmore counterparts, each of which shall be deemed to be an original as against any party whose signature appears thereon,\nbut all of which together shall constitute but one and the same instrument. 11. IN WITNESS WHEREOF, the\nundersigned have caused this Agreement to be duly executed effected as of the date first above written. PIERCING\nPAGODA, INC. ZALE CORPORATION By: /s/ John Eureyecko By: /s/ Alan P. Shor ---------=--m-mmmmmmm oo o\n---------------------- Name: John Eureyecko Name: Alan P. Shor Title: President and COO Title: Executive Vice President\nand Chief Operating Officer 3	EX-99.(D)(4) 9 ex99-d4.tx MUTUAL NON-DISCLOSURE AGREEMENT 1 Exhibit (d)(4) PIERCING PAGODA\nINC. 3910 Adler Place Post Office Box 25007 Lehigh Valley, Pa 18002 MUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement, made as of March 28, 2000 (the Effective Date), by and between Piercing Pagoda, Inc., a Delaware\ncorporation (including its affiliates and their respective successors, transferees and permitted assigns, "PPI"), and the\nundersigned (including its affiliates and their respective successors, transferees and permitted assigns, "Company") in\nconnection with, our consideration of a possible business transaction (the "Stated Purpose") each party may disclose\ncertain of its proprietary and confidential information to the other party in order to facilitate discussion and analyses. As\na condition to the furnishing by one party (in such capacity, the "Disclosing Party") of such information as the Disclosing\nParty, in its sole and absolute discretion, may determine to furnish to the other party (in such capacity, the "Recipient"),\nthe parties hereto agree to comply with the terms and conditions set forth below. NOW, THEREFORE, in consideration\nof and reliance on the respective representations, warranties and covenants contained herein and intending to be legally\nbound hereby, the parties hereto agree as follows: 1. The Recipient shall take responsible steps to ensure that all\nConfidential\nInformation\nof\nthe\nDisclosing\nParty\nis\nkept\nconfidential;\nprovided,\nhowever,\nthat\nsuch\ninformation\nmay\nbe\ndisclosed to those employees or agents of the Recipient who have a need to know such information, or to such other\nparty as may be agreed to by the Disclosing Party in writing, only if each such employee or party is informed by the\nRecipient of the confidential and proprietary nature of such information and of the confidentiality undertakings of\nthe\nRecipient contained herein. The Recipient shall be responsible for any breach of this Agreement by its employees or\nagents. 2. As used herein, "reasonable steps" means the steps that the Recipient takes to protect its own, similar\nconfidential and proprietary information, which shall not be less than a reasonable standard of care. 3. As used herein\n"Confidential Information" means all proprietary or confidential information of the Disclosing Party, including but not\nlimited to Confidential Information regarding its products, suppliers, customers, technology, pricing, business plan\nactivities or know-how, whether disclosed directly or indirectly, in writing (marked as Confidential Information), orally\nor by drawings or inspection of documents. 2 4. However, Confidential Information does not include any of the\nforegoing items: (i) prior to disclosure, is know to the public or becomes so known through no action of Recipient; (ii)\nis\nrequired to be disclosed pursuant to applicable laws, rules or regulations or governmental requirement or court order\n(provided, however, that the Recipient shall promptly advise the Disclosing Party of its notice of any such requirement or\norder); (iii) is already rightfully in the Recipient's possession at the time of disclosure, as evidenced by written records of\nthe Recipient; or (iv) is received by the Recipient from another person or entity who is not obligated to the Disclosing\nparty to keep the same confidential. 5. Neither party shall, without the other party's prior written consent (a) disclose\nto\nany person or entity (other than the persons employed by either party who are actively and directly participating in the\nStated\nPurpose)\nany\ninformation\nabout\nthe\nparties'\ndiscussions\nregarding\nthe\nStated\nPurpose\nor\nthe\nterms,\nconditions\nor\nother facts relating thereto including the fact that discussions are taking place with respect thereto or the status thereof,\nor\nthe fact that the Confidential Information has been made available to either party, except to the extent that such\ndisclosure is required by applicable laws, rules or regulations or government requirement or court order (provided,\nhowever, that the Recipient shall promptly advise the Disclosing Party of its notice of any such requirement or order); or\n(b)\nuse\nthe\nConfidential\nInformation\nfor\nany\npurpose\nother\nthan\nthe\nStated\nPurpose,\nwithout\nlimiting\nthe\nforegoing,\nthe\nRecipient shall not trade in the securities of the Disclosing Party while in the possession of Confidential Information\nrelating to the Disclosing Party. 6. At the request of the Disclosing Party, the Recipient shall promptly return to the\nDisclosing Party all Confidential Information of the Disclosing Party in whatever medium, including any and all copies\nthereof. Such return (or, if authorized, destruction of Confidential Information) shall be confirmed in writing by the\nRecipient to the Disclosing Party. 7. Each party agrees that it would be impossible or inadequate to measure and\ncalculate the other party's damages from any breach of the covenants set forth in this Agreement. Accordingly, the\nparties agree that if either party breaches or threatens to breach any of such covenants, the non-breaching party will have\navailable, in addition to any other right or remedy available, the right to obtain an injunction from a court of competent\njurisdiction restraining such breach or threatened breach and to specific performance of any such provision of this\nAgreement The parties further agree that no bond or other security shall be required in obtaining such equitable relief\nand each party hereby consents to the issuance of such injunction and to the ordering of specific performance. 2 3 8.\nEach party understands and acknowledges that the Disclosing Party is not making any representation or warranty as\nto\nthe\naccuracy\nor completeness of any Confidential Information furnished by or on behalf of the Disclosing Party (except\nto the extent and only to such effect as shall be expressly set forth in an executed and delivered definitive agreement\nbetween the parties to effect the Stated Purpose (the "Definitive Agreement")). Neither the Disclosing Party, its affiliates\nnor any of their respective officers, directors, employees or agents shall have any liability to the Recipient or any of its\nRepresentatives relating to or arising from the use of the Confidential Agreement. 9. Except as set forth in this\nAgreement, neither PPI nor Company shall have any liability or obligation of any nature whatsoever to the other\nparty,\nnor any obligation to enter into a Definitive Agreement, negotiate to enter into a Definitive Agreement, or refrain from\nnegotiating similar agreements with other parties. 10. It is further understood and agreed that this Agreement may not\nbe\namended except by an instrument signed by the party against whom enforcement is sought. This Agreement shall be\ngoverned by an interpreted in accordance with the laws of the Commonwealth of Pennsylvania, without giving effect to\nany conflict of law provisions. This Agreement shall become binding when any one or more counterparts hereof,\nindividually or taken together, shall bear the signatures of PPI and Company. This Agreement may be executed in two or\nmore counterparts, each of which shall be deemed to be an original as against any party whose signature appears\nthereon,\nbut all of which together shall constitute but one and the same instrument. 11. IN WITNESS WHEREOF, the\nundersigned have caused this Agreement to be duly executed effected as of the date first above written. PIERCING\nPAGODA, INC. ZALE CORPORATION By: /s/ John Eureyecko By: /s/ Alan P. Shor\nName: John Eureyecko Name: Alan P. Shor Title: President and COO Title: Executive Vice President\nand Chief Operating Officer 3	EX-99.(D)(4) 9 ex99-d4.txt MUTUAL NON-DISCLOSURE AGREEMENT 1 Exhibit (d)(4) PIERCING PAGODA,\nINC. 3910 Adler Place Post Office Box 25007 Lehigh Valley, Pa 18002 MUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement, made as of March 28, 2000 (the Effective Date), by and between Piercing Pagoda, Inc., a Delaware\ncorporation (including its affiliates and their respective successors, transferees and permitted assigns, "PPI"), and the\nundersigned (including its affiliates and their respective successors, transferees and permitted assigns, "Company") in\nconnection with, our consideration of a possible business transaction (the "Stated Purpose") each party may disclose\ncertain of its proprietary and confidential information to the other party in order to facilitate discussion and analyses. As\na condition to the furnishing by one party (in such capacity, the "Disclosing Party") of such information as the Disclosing\nParty, in its sole and absolute discretion, may determine to furnish to the other party (in such capacity, the "Recipient"),\nthe parties hereto agree to comply with the terms and conditions set forth below. NOW, THEREFORE, in consideration\nof and reliance on the respective representations, warranties and covenants contained herein and intending to be legally\nbound hereby, the parties hereto agree as follows: 1. The Recipient shall take responsible steps to ensure that all\nConfidential Information of the Disclosing Party is kept confidential; provided, however, that such information may be\ndisclosed to those employees or agents of the Recipient who have a need to know such information, or to such other\nparty as may be agreed to by the Disclosing Party in writing, only if each such employee or party is informed by the\nRecipient of the confidential and proprietary nature of such information and of the confidentiality undertakings of the\nRecipient contained herein. The Recipient shall be responsible for any breach of this Agreement by its employees or\nagents. 2. As used herein, "reasonable steps" means the steps that the Recipient takes to protect its own, similar\nconfidential and proprietary information, which shall not be less than a reasonable standard of care. 3. As used herein\n"Confidential Information" means all proprietary or confidential information of the Disclosing Party, including but not\nlimited to Confidential Information regarding its products, suppliers, customers, technology, pricing, business plan,\nactivities or know-how, whether disclosed directly or indirectly, in writing (marked as Confidential Information), orally\nor by drawings or inspection of documents. 2 4. However, Confidential Information does not include any of the\nforegoing items: (i) prior to disclosure, is know to the public or becomes so known through no action of Recipient; (ii) is\nrequired to be disclosed pursuant to applicable laws, rules or regulations or governmental requirement or court order\n(provided, however, that the Recipient shall promptly advise the Disclosing Party of its notice of any such requirement or\norder); (iii) is already rightfully in the Recipient's possession at the time of disclosure, as evidenced by written records of\nthe Recipient; or (iv) is received by the Recipient from another person or entity who is not obligated to the Disclosing\nparty to keep the same confidential. 5. Neither party shall, without the other party's prior written consent (a) disclose to\nany person or entity (other than the persons employed by either party who are actively and directly participating in the\nStated Purpose) any information about the parties' discussions regarding the Stated Purpose or the terms, conditions or\nother facts relating thereto including the fact that discussions are taking place with respect thereto or the status thereof, or\nthe fact that the Confidential Information has been made available to either party, except to the extent that such\ndisclosure is required by applicable laws, rules or regulations or government requirement or court order (provided,\nhowever, that the Recipient shall promptly advise the Disclosing Party of its notice of any such requirement or order); or\n(b) use the Confidential Information for any purpose other than the Stated Purpose, without limiting the foregoing, the\nRecipient shall not trade in the securities of the Disclosing Party while in the possession of Confidential Information\nrelating to the Disclosing Party. 6. At the request of the Disclosing Party, the Recipient shall promptly return to the\nDisclosing Party all Confidential Information of the Disclosing Party in whatever medium, including any and all copies\nthereof. Such return (or, if authorized, destruction of Confidential Information) shall be confirmed in writing by the\nRecipient to the Disclosing Party. 7. Each party agrees that it would be impossible or inadequate to measure and\ncalculate the other party's damages from any breach of the covenants set forth in this Agreement. Accordingly, the\nparties agree that if either party breaches or threatens to breach any of such covenants, the non-breaching party will have\navailable, in addition to any other right or remedy available, the right to obtain an injunction from a court of competent\njurisdiction restraining such breach or threatened breach and to specific performance of any such provision of this\nAgreement. The parties further agree that no bond or other security shall be required in obtaining such equitable relief\nand each party hereby consents to the issuance of such injunction and to the ordering of specific performance. 2 3 8.\nEach party understands and acknowledges that the Disclosing Party is not making any representation or warranty as to\nthe accuracy or completeness of any Confidential Information furnished by or on behalf of the Disclosing Party (except\nto the extent and only to such effect as shall be expressly set forth in an executed and delivered definitive agreement\nbetween the parties to effect the Stated Purpose (the "Definitive Agreement")). Neither the Disclosing Party, its affiliates\nnor any of their respective officers, directors, employees or agents shall have any liability to the Recipient or any of its\nRepresentatives relating to or arising from the use of the Confidential Agreement. 9. Except as set forth in this\nAgreement, neither PPI nor Company shall have any liability or obligation of any nature whatsoever to the other party,\nnor any obligation to enter into a Definitive Agreement, negotiate to enter into a Definitive Agreement, or refrain from\nnegotiating similar agreements with other parties. 10. It is further understood and agreed that this Agreement may not be\namended except by an instrument signed by the party against whom enforcement is sought. This Agreement shall be\ngoverned by an interpreted in accordance with the laws of the Commonwealth of Pennsylvania, without giving effect to\nany conflict of law provisions. This Agreement shall become binding when any one or more counterparts hereof,\nindividually or taken together, shall bear the signatures of PPI and Company. This Agreement may be executed in two or\nmore counterparts, each of which shall be deemed to be an original as against any party whose signature appears thereon,\nbut all of which together shall constitute but one and the same instrument. 11. IN WITNESS WHEREOF, the\nundersigned have caused this Agreement to be duly executed effected as of the date first above written. PIERCING\nPAGODA, INC. ZALE CORPORATION By: /s/ John Eureyecko By: /s/ Alan P. Shor ----------------------------- ------------\n-- -- - -- - -- - -- - -- - -- - -- Name: John Eureyecko Name: Alan P. Shor Title: President and COO Title: Executive Vice President\nand Chief Operating Officer 3
5180f107324abcab9d9ff81aee2db8d3.pdf	effective_date jurisdiction party term	EX-99.(E).(3) 5 d443014dex99e3.htm CONFIDENTIALITY AGREEMENT BETWEEN SUN PHARMACEUTICAL\nINDUSTRIES, INC.\nExhibit (e)(3)\nMay 11, 2012\nCONFIDENTIAL AND PROPRIETARY\nJames Hattersley\nVice President, Corp. Business Development\nSun Pharmaceutical Industries, Inc.\n270 Prospect Plains Road\nCranbury, New Jersey 08512\nRe: Confidentiality Agreement\nDear Mr. Hattersley:\nIn connection with your evaluation of a potential transaction (the “Potential Transaction”) with DUSA Pharmaceuticals, Inc. (the “Company”),\nwe are prepared to make available to you and/or your Representatives (as defined below) certain confidential information relating to the Company\nand/or the Potential Transaction. As a condition to such information being furnished to you and your Representatives, you hereby agree to treat any\nInformation (as defined below), whether prepared by the Company, its Representatives or otherwise, which is furnished to you or your\nRepresentatives now or in the future by or on behalf of the Company pursuant hereto in accordance with the terms and provisions of this agreement\n(this “Agreement”) and to take or abstain from taking certain other actions as hereinafter set forth. As used herein, a party’s “Representatives” shall\nmean such party’s directors, officers, employees, agents, affiliates and advisors (including, without limitation, such party’s attorneys, accountants,\nconsultants and financial advisors).\nThe term “Information” shall be deemed to mean (subject to the following sentence) any confidential or otherwise proprietary information\nrelating to the Company that the Company or any of its Representatives disclose to you, on or after the date of this Agreement, regardless of the\nmanner in which it is furnished, together with all portions of notes, analyses, compilations, studies, interpretations or other documents prepared by\nyou or your Representatives which contain, in whole or in part, the Information furnished to you or your Representatives pursuant to this Agreement.\nThe term “Information” shall not include, and the obligations of this Agreement shall not apply to, information which (i) is or becomes generally\navailable to the public other than as a result of an unauthorized disclosure by you or your Representatives in breach of this Agreement, (ii) was\nwithin your or any of your Representative’s possession prior to its being furnished to you by or on behalf of the Company pursuant to this\nAgreement, provided that the source of such information was not known by you to be bound by an agreement with or other contractual, legal or\nfiduciary obligation of confidentiality to the Company or any other party with respect to such information, (iii) becomes available to you or any of\nyour Representatives from a source other than the Company or any of its Representatives, provided that such source is not known by you to be\nbound by an agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to\nsuch information, or (iv) was or is developed by you or your Representatives independently of such information.\nExcept as otherwise provided herein, you hereby agree that you and your Representatives shall use the Information solely for the purpose of\nevaluating the Potential Transaction, that the Information will be kept strictly confidential by you and your Representatives, and that you and your\nRepresentatives will not disclose any of the Information in any manner whatsoever; provided, however, that (i) you may make any disclosure of the\nInformation to which the Company gives its prior written consent, (ii) any of the Information may be disclosed to your Representatives who need to\nknow the Information for the sole purpose of evaluating the Potential Transaction, who agree to nondisclosure and non-use terms with respect to the\nInformation that are no less strict than the terms of this Agreement and (iii) any Information may be disclosed if required by operation of law, rule or\nregulation or by any court or other governmental or regulatory authority; provided that you provide prompt written notice to the Company so that the\nCompany may seek a protective order or other appropriate remedy. If, in the absence of a protective order or other appropriate remedy or the receipt\nof a waiver by the Company, you or any of your\n1\nRepresentatives are nonetheless, upon advice of counsel, legally compelled to disclose Information or else stand liable for contempt or suffer other\ncensure or penalty, you or your Representative, as applicable, may, without liability hereunder, disclose only that portion of the Information which\nsuch counsel advises is legally required to be disclosed, provided that you and your Representative exercise your respective reasonable efforts to\npreserve the confidentiality of the Information, including, without limitation, by cooperating with the Company, at the Company’s expense, to obtain\nan appropriate protective order or other reliable assurance that confidential treatment will be accorded the Information. In any event, you shall be\nresponsible for any breach of this Agreement by any of your Representatives.\nYou represent that neither you nor any of your Representatives has entered into, directly or indirectly, any agreement or understanding with\nany person (other than any agreement between you and your Representatives) with respect to a Potential Transaction or that could otherwise affect\nsuch person’s decisions or actions with respect to a Potential Transaction involving the Company. In addition, you agree that, without the prior\nwritten consent of the Company, you and your Representatives will not disclose to any other person the fact that the Information has been made\navailable to you or that discussions or negotiations are taking place between the Company and you concerning the Potential Transaction or any of the\nterms, conditions or other facts with respect thereto (including the status thereof), unless in the opinion of your counsel such disclosure is required by\nlaw, rule or regulation or by any court or other governmental or regulatory authority; provided that you provide prompt written notice to the\nCompany so that the Company may seek a protective order or other appropriate remedy.\nNothing contained in this Agreement shall require either party hereto to enter into the Potential Transaction or any other transaction or to\nnegotiate for the same for any specified period of time. All Information disclosed to you shall be and remain the property of the Company and this\nAgreement shall not be construed as a license or any other grant of any right whatsoever in the Information. For clarity, no license under any patent,\ncopyright, trademark, other intellectual property right or any application therefore is hereby granted or implied by the provision of the Information to\nyou or your Representatives. Neither you nor your Representatives shall alter or obliterate any trademark or any other proprietary mark or notice\nthereof of the Company on any copy of the Information, and you shall reproduce any such mark or notice on all copies of the Information.\nYou agree that upon the request of the Company, you will return to the Company or destroy all Information furnished to you or your\nRepresentatives by or on behalf of the Company, without retaining any copies or extracts thereof, and you will destroy all portions of reports,\nanalyses, memoranda, notes or other documents prepared by you or your Representatives that contain the Information. You will confirm to us in\nwriting that destruction of all such Information has been completed. Notwithstanding the foregoing, the Company acknowledges that, in the ordinary\ncourse of your business and as a part of your customary practices, after the destruction or return of other copies of the Information, electronic copies\nof such Information may still remain on archives, hard drives, backup tapes and similar formats, and the Company acknowledges that, provided such\nInformation is not used or disclosed by you or your Representatives contrary to the terms of this Agreement, such remaining copies shall not be\ndeemed a breach of this paragraph. Furthermore, notwithstanding anything to the contrary herein, you and your Representatives may retain copies of\nany Information in order to comply with your and their legal and regulatory record-keeping obligations, and do not have to return or destroy\nInformation to the extent that retention of such Information is, in good faith, in order to comply with your or their regulators’ and/or auditors’\nexpectations of best practices and/or applicable law or to defend yourself or themselves in litigation.\nIn consideration of and as a condition to the Company furnishing the Information to you under this Agreement, you agree that for a period of\none year from the date of this Agreement, neither you nor any of your affiliates will, directly or indirectly, solicit or employ any of the i) current\nofficers or director-level employees, without obtaining the prior written consent of the Company, or ii) other employees of the Company (so long as\nthey are employed by the Company) who are in discussion with you relating to this Agreement, without obtaining the prior written consent of the\nCompany, (it being understood that any newspaper or other general solicitation, including without limitation, web-based advertisements, not directed\nspecifically to such person shall not be deemed to be a solicitation for purposes of this provision).\nYou acknowledge and agree that the Company will be irreparably injured by a breach of this Agreement by you or your Representatives, that\nmonetary remedies may be inadequate to protect the Company against any actual or threatened breach of this Agreement by you or your\nRepresentatives, and that the Company shall be entitled to seek specific performance or other equitable relief as a remedy for any such breach\nwithout posting a bond.\n2\nFor a period of twelve (12) months commencing on the date of this Agreement, you shall not, nor shall any of your subsidiaries or\nRepresentatives, in any manner, directly or indirectly, acting alone or in concert with others, effect or seek, offer or propose (whether publicly or\notherwise) to effect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise)\nto effect or participate in, (i) any acquisition of beneficial ownership, as defined in Rule 13d-3 under the 1934 Act, of any substantial portion (i.e.,\nmore than 5%) of any securities or assets of the Company or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business\ncombination involving the Company or any of its subsidiaries; (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the\nSecurities and Exchange Commission) or consents to vote any voting securities of the Company; or (iv) take any action that might require the\nCompany to make a announcement regarding any of the types of matters set forth above; nor shall you engage in short selling activities with respect\nto securities of the Company. The provisions of this paragraph will not prohibit the ownership by you or any of your affiliates, subsidiaries or\nRepresentatives of any securities of the Company or a third party that you or any of your affiliates, subsidiaries or Representatives own as of the date\nhereof or the purchase by the Company or any of the Company’s affiliates of any of the securities held as of the date hereof.\nThe agreements contained in the immediately preceding paragraph shall terminate and be of no effect if (i) the Company enters into an\nagreement relating to any (a) merger, consolidation, business combination, binding share exchange or similar transaction involving the Company in\neach case, in which the Company will not be the entity surviving such transaction, (b) sale, lease or other disposition or series of related dispositions,\ndirectly or indirectly, by merger, consolidation or otherwise of assets of the Company or its subsidiaries representing all or substantially all of the\nconsolidated assets of the Company and its subsidiaries, (c) issue, sale or other disposition or series of related dispositions by the Company of\n(including by of merger, consolidation, binding share exchange or any similar transaction) securities (or options, rights or warrants to purchase, or\nsecurities convertible into such securities) representing 50% or more of the voting power of the Company to a single purchaser or an affiliated group\nof purchasers or (d) other transaction or series of related transactions pursuant to which any person or entity shall acquire beneficial ownership, as is\ndefined in Rule 13d-3 under the 1934 Act, or the right to acquire beneficial ownership of, 50% or more of the outstanding common stock of the\nCompany, or (ii) any corporation, partnership, person or other entity or group commences a tender offer or exchange offer to acquire 50% or more of\nthe outstanding voting securities of the Company without the consent of the Board of Directors of the Company.\nYou acknowledge that you are aware that the securities laws of the United States prohibit any person who has material, non-public information\nconcerning the Company or a possible transaction involving the Company from purchasing or selling the Company’s securities when in possession\nof such information and from communicating such information to any other person or entity under circumstances in which it is reasonably\nforeseeable that such person or entity is likely to purchase or sell such securities in reliance upon such information.\nNotwithstanding any other provision of this Agreement to the contrary, this Agreement and all of the terms, conditions, undertakings and\nprohibitions contained herein shall terminate upon the earlier to occur of (i) two (2) years after the date of this Agreement or (ii) such time as the\nInformation has been publicly disclosed by or on behalf of the Company whichever is earlier\nThis Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey. The parties consent to the\nexclusive jurisdiction of the federal and state courts located in Newark, New Jersey. This Agreement may be executed in one or more counterparts,\neach of which shall be deemed to be an original copy of this Agreement and all of which, when taken together, shall be deemed to constitute one and\nthe same Agreement. The exchange of copies of this Agreement and of signature pages by facsimile transmission shall constitute effective execution\nand delivery of this Agreement by the parties hereto.\n3\nPlease confirm your agreement with the foregoing by executing this Agreement in the space provided below and returning one copy of this\nAgreement to us for our files.\nVery truly yours,\n/s/ Robert F. Doman\nRobert F. Doman,\nPresident and CEO\nAccepted and agreed to as of the date\nfirst written above:\nBy: /s/ James E. Hattersley\nJames E. Hattersley\nVice President, Business Development\nSun Pharmaceutical Industries, Inc.\n4	EX-99.(E).(3) 5 d443014dex99e3.htm CONFIDENTIALITY AGREEMENT BETWEEN SUN PHARMACEUTICAL\nINDUSTRIES, INC.\nExhibit (e)(3)\nMay 11, 2012\nCONFIDENTIAL AND PROPRIETARY\nJames Hattersley\nVice President, Corp. Business Development\nSun Pharmaceutical Industries, Inc.\n270 Prospect Plains Road\nCranbury, New Jersey 08512\nRe: Confidentiality Agreement\nDear Mr. Hattersley:\nIn connection with your evaluation of a potential transaction (the “Potential Transaction”) with DUSA Pharmaceuticals, Inc. (the “Company™),\nwe are prepared to make available to you and/or your Representatives (as defined below) certain confidential information relating to the Company\nand/or the Potential Transaction. As a condition to such information being furnished to you and your Representatives, you hereby agree to treat any\nInformation (as defined below), whether prepared by the Company, its Representatives or otherwise, which is furnished to you or your\nRepresentatives now or in the future by or on behalf of the Company pursuant hereto in accordance with the terms and provisions of this agreement\n(this “Agreement”) and to take or abstain from taking certain other actions as hereinafter set forth. As used herein, a party’s “Representatives” shall\nmean such party’s directors, officers, employees, agents, affiliates and advisors (including, without limitation, such party’s attorneys, accountants,\nconsultants and financial advisors).\nThe term “Information” shall be deemed to mean (subject to the following sentence) any confidential or otherwise proprietary information\nrelating to the Company that the Company or any of its Representatives disclose to you, on or after the date of this Agreement, regardless of the\nmanner in which it is furnished, together with all portions of notes, analyses, compilations, studies, interpretations or other documents prepared by\nyou or your Representatives which contain, in whole or in part, the Information furnished to you or your Representatives pursuant to this Agreement.\nThe term “Information” shall not include, and the obligations of this Agreement shall not apply to, information which (i) is or becomes generally\navailable to the public other than as a result of an unauthorized disclosure by you or your Representatives in breach of this Agreement, (ii) was\nwithin your or any of your Representative’s possession prior to its being furnished to you by or on behalf of the Company pursuant to this\nAgreement, provided that the source of such information was not known by you to be bound by an agreement with or other contractual, legal or\nfiduciary obligation of confidentiality to the Company or any other party with respect to such information, (iii) becomes available to you or any of\nyour Representatives from a source other than the Company or any of its Representatives, provided that such source is not known by you to be\nbound by an agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to\nsuch information, or (iv) was or is developed by you or your Representatives independently of such information.\nExcept as otherwise provided herein, you hereby agree that you and your Representatives shall use the Information solely for the purpose of\nevaluating the Potential Transaction, that the Information will be kept strictly confidential by you and your Representatives, and that you and your\nRepresentatives will not disclose any of the Information in any manner whatsoever; provided, however, that (i) you may make any disclosure of the\nInformation to which the Company gives its prior written consent, (ii) any of the Information may be disclosed to your Representatives who need to\nknow the Information for the sole purpose of evaluating the Potential Transaction, who agree to nondisclosure and non-use terms with respect to the\nInformation that are no less strict than the terms of this Agreement and (iii) any Information may be disclosed if required by operation of law, rule or\nregulation or by any court or other governmental or regulatory authority; provided that you provide prompt written notice to the Company so that the\nCompany may seek a protective order or other appropriate remedy. If, in the absence of a protective order or other appropriate remedy or the receipt\nof a waiver by the Company, you or any of your\nRepresentatives are nonetheless, upon advice of counsel, legally compelled to disclose Information or else stand liable for contempt or suffer other\ncensure or penalty, you or your Representative, as applicable, may, without liability hereunder, disclose only that portion of the Information which\nsuch counsel advises is legally required to be disclosed, provided that you and your Representative exercise your respective reasonable efforts to\npreserve the confidentiality of the Information, including, without limitation, by cooperating with the Company, at the Company’s expense, to obtain\nan appropriate protective order or other reliable assurance that confidential treatment will be accorded the Information. In any event, you shall be\nresponsible for any breach of this Agreement by any of your Representatives.\nYou represent that neither you nor any of your Representatives has entered into, directly or indirectly, any agreement or understanding with\nany person (other than any agreement between you and your Representatives) with respect to a Potential Transaction or that could otherwise affect\nsuch person’s decisions or actions with respect to a Potential Transaction involving the Company. In addition, you agree that, without the prior\nwritten consent of the Company, you and your Representatives will not disclose to any other person the fact that the Information has been made\navailable to you or that discussions or negotiations are taking place between the Company and you concerning the Potential Transaction or any of the\nterms, conditions or other facts with respect thereto (including the status thereof), unless in the opinion of your counsel such disclosure is required by\nlaw, rule or regulation or by any court or other governmental or regulatory authority; provided that you provide prompt written notice to the\nCompany so that the Company may seek a protective order or other appropriate remedy.\nNothing contained in this Agreement shall require either party hereto to enter into the Potential Transaction or any other transaction or to\nnegotiate for the same for any specified period of time. All Information disclosed to you shall be and remain the property of the Company and this\nAgreement shall not be construed as a license or any other grant of any right whatsoever in the Information. For clarity, no license under any patent,\ncopyright, trademark, other intellectual property right or any application therefore is hereby granted or implied by the provision of the Information to\nyou or your Representatives. Neither you nor your Representatives shall alter or obliterate any trademark or any other proprietary mark or notice\nthereof of the Company on any copy of the Information, and you shall reproduce any such mark or notice on all copies of the Information.\nYou agree that upon the request of the Company, you will return to the Company or destroy all Information furnished to you or your\nRepresentatives by or on behalf of the Company, without retaining any copies or extracts thereof, and you will destroy all portions of reports,\nanalyses, memoranda, notes or other documents prepared by you or your Representatives that contain the Information. You will confirm to us in\nwriting that destruction of all such Information has been completed. Notwithstanding the foregoing, the Company acknowledges that, in the ordinary\ncourse of your business and as a part of your customary practices, after the destruction or return of other copies of the Information, electronic copies\nof such Information may still remain on archives, hard drives, backup tapes and similar formats, and the Company acknowledges that, provided such\nInformation is not used or disclosed by you or your Representatives contrary to the terms of this Agreement, such remaining copies shall not be\ndeemed a breach of this paragraph. Furthermore, notwithstanding anything to the contrary herein, you and your Representatives may retain copies of\nany Information in order to comply with your and their legal and regulatory record-keeping obligations, and do not have to return or destroy\nInformation to the extent that retention of such Information is, in good faith, in order to comply with your or their regulators’ and/or auditors’\nexpectations of best practices and/or applicable law or to defend yourself or themselves in litigation.\nIn consideration of and as a condition to the Company furnishing the Information to you under this Agreement, you agree that for a period of\none year from the date of this Agreement, neither you nor any of your affiliates will, directly or indirectly, solicit or employ any of the i) current\nofficers or director-level employees, without obtaining the prior written consent of the Company, or ii) other employees of the Company (so long as\nthey are employed by the Company) who are in discussion with you relating to this Agreement, without obtaining the prior written consent of the\nCompany, (it being understood that any newspaper or other general solicitation, including without limitation, web-based advertisements, not directed\nspecifically to such person shall not be deemed to be a solicitation for purposes of this provision).\nYou acknowledge and agree that the Company will be irreparably injured by a breach of this Agreement by you or your Representatives, that\nmonetary remedies may be inadequate to protect the Company against any actual or threatened breach of this Agreement by you or your\nRepresentatives, and that the Company shall be entitled to seek specific performance or other equitable relief as a remedy for any such breach\nwithout posting a bond.\nFor a period of twelve (12) months commencing on the date of this Agreement, you shall not, nor shall any of your subsidiaries or\nRepresentatives, in any manner, directly or indirectly, acting alone or in concert with others, effect or seek, offer or propose (whether publicly or\notherwise) to effect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise)\nto effect or participate in, (i) any acquisition of beneficial ownership, as defined in Rule 13d-3 under the 1934 Act, of any substantial portion (i.e.,\nmore than 5%) of any securities or assets of the Company or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business\ncombination involving the Company or any of its subsidiaries; (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the\nSecurities and Exchange Commission) or consents to vote any voting securities of the Company; or (iv) take any action that might require the\nCompany to make a announcement regarding any of the types of matters set forth above; nor shall you engage in short selling activities with respect\nto securities of the Company. The provisions of this paragraph will not prohibit the ownership by you or any of your affiliates, subsidiaries or\nRepresentatives of any securities of the Company or a third party that you or any of your affiliates, subsidiaries or Representatives own as of the date\nhereof or the purchase by the Company or any of the Company’s affiliates of any of the securities held as of the date hereof.\nThe agreements contained in the immediately preceding paragraph shall terminate and be of no effect if (i) the Company enters into an\nagreement relating to any (a) merger, consolidation, business combination, binding share exchange or similar transaction involving the Company in\neach case, in which the Company will not be the entity surviving such transaction, (b) sale, lease or other disposition or series of related dispositions,\ndirectly or indirectly, by merger, consolidation or otherwise of assets of the Company or its subsidiaries representing all or substantially all of the\nconsolidated assets of the Company and its subsidiaries, (c) issue, sale or other disposition or series of related dispositions by the Company of\n(including by of merger, consolidation, binding share exchange or any similar transaction) securities (or options, rights or warrants to purchase, or\nsecurities convertible into such securities) representing 50% or more of the voting power of the Company to a single purchaser or an affiliated group\nof purchasers or (d) other transaction or series of related transactions pursuant to which any person or entity shall acquire beneficial ownership, as is\ndefined in Rule 13d-3 under the 1934 Act, or the right to acquire beneficial ownership of, 50% or more of the outstanding common stock of the\nCompany, or (ii) any corporation, partnership, person or other entity or group commences a tender offer or exchange offer to acquire 50% or more of\nthe outstanding voting securities of the Company without the consent of the Board of Directors of the Company.\nYou acknowledge that you are aware that the securities laws of the United States prohibit any person who has material, non-public information\nconcerning the Company or a possible transaction involving the Company from purchasing or selling the Company’s securities when in possession\nof such information and from communicating such information to any other person or entity under circumstances in which it is reasonably\nforeseeable that such person or entity is likely to purchase or sell such securities in reliance upon such information.\nNotwithstanding any other provision of this Agreement to the contrary, this Agreement and all of the terms, conditions, undertakings and\nprohibitions contained herein shall terminate upon the earlier to occur of (i) two (2) years after the date of this Agreement or (ii) such time as the\nInformation has been publicly disclosed by or on behalf of the Company whichever is earlier\nThis Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey. The parties consent to the\nexclusive jurisdiction of the federal and state courts located in Newark, New Jersey. This Agreement may be executed in one or more counterparts,\neach of which shall be deemed to be an original copy of this Agreement and all of which, when taken together, shall be deemed to constitute one and\nthe same Agreement. The exchange of copies of this Agreement and of signature pages by facsimile transmission shall constitute effective execution\nand delivery of this Agreement by the parties hereto.\nPlease confirm your agreement with the foregoing by executing this Agreement in the space provided below and returning one copy of this\nAgreement to us for our files.\nVery truly yours,\n/s/ Robert F. Doman\nRobert F. Doman,\nPresident and CEO\nAccepted and agreed to as of the date\nfirst written above:\nBy: /s/ James E. Hattersley\nJames E. Hattersley\nVice President, Business Development\nSun Pharmaceutical Industries, Inc.	EX-99.(E).(3) 5 d443014dex99e3.htm CONFIDENTIALITY AGREEMENT BETWEEN SUN PHARMACEUTICAL\nINDUSTRIES, INC.\nExhibit (e)(3)\nMay 11, 2012\nCONFIDENTIAL AND PROPRIETARY\nJames Hattersley\nVice President, Corp. Business Development\nSun Pharmaceutical Industries, Inc.\n270 Prospect Plains Road\nCranbury, New Jersey 08512\nRe: Confidentiality Agreement\nDear Mr. Hattersley:\nIn connection with your evaluation of a potential transaction (the "Potential Transaction") with DUSA Pharmaceuticals, Inc. (the "Company"),\nwe are prepared to make available to you and/or your Representatives (as defined below) certain confidential information relating to the Company\nand/or the Potential Transaction. As a condition to such information being furnished to you and your Representatives, you hereby agree to treat any\nInformation (as defined below), whether prepared by the Company, its Representatives or otherwise, which is furnished to you or your\nRepresentatives now or in the future by or on behalf of the Company pursuant hereto in accordance with the terms and provisions of this agreement\n(this "Agreement") and to take or abstain from taking certain other actions as hereinafter set forth. As used herein, a party's "Representatives" shall\nmean such party's directors, officers, employees, agents, affiliates and advisors (including, without limitation, such party's attorneys, accountants,\nconsultants and financial advisors).\nThe term "Information" shall be deemed to mean (subject to the following sentence) any confidential or otherwise proprietary information\nrelating to the Company that the Company or any of its Representatives disclose to you, on or after the date of this Agreement, regardless of the\nmanner in which it is furnished, together with all portions of notes, analyses, compilations, studies, interpretations or other documents prepared by\nyou or your Representatives which contain, in whole or in part, the Information furnished to you or your Representatives pursuant to this Agreement\nThe term "Information" shall not include, and the obligations of this Agreement shall not apply to, information which (i) is or becomes generally\navailable to the public other than as a result of an unauthorized disclosure by you or your Representatives in breach of this Agreement, (ii) was\nwithin your or any of your Representative's possession prior to its being furnished to you by or on behalf of the Company pursuant to this\nAgreement, provided that the source of such information was not known by you to be bound by an agreement with or other contractual, legal or\nfiduciary\nobligation\nof\nconfidentiality\nto\nthe\nCompany\nor\nany\nother\nparty\nwith\nrespect\nto\nsuch\ninformation,\n(iii)\nbecomes\navailable\nto\nyou\nor\nany\nof\nyour Representatives from a source other than the Company or any of its Representatives, provided that such source is not known by you to be\nbound by an agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to\nsuch information, or (iv) was or is developed by you or your Representatives independently of such information.\nExcept as otherwise provided herein, you hereby agree that you and your Representatives shall use the Information solely for the purpose of\nevaluating the Potential Transaction, that the Information will be kept strictly confidential by you and your Representatives, and that you and your\nRepresentatives will not disclose any of the Information in any manner whatsoever; provided, however, that (i) you may make any disclosure of the\nInformation to which the Company gives its prior written consent, (ii) any of the Information may be disclosed to your Representatives who need to\nknow\nthe\nInformation\nfor\nthe\nsole\npurpose\nof\nevaluating\nthe\nPotential\nTransaction,\nwho\nagree\nto\nnondisclosure\nand\nnon-use\nterms\nwith\nrespect\nto\nthe\nInformation that are no less strict than the terms of this Agreement and (iii) any Information may be disclosed if required by operation of law, rule or\nregulation or by any court or other governmental or regulatory authority; provided that you provide prompt written notice to the Company so that the\nCompany may seek a protective order or other appropriate remedy. If, in the absence of a protective order or other appropriate remedy or the receipt\nof a waiver by the Company, you or any of your\n1\nRepresentatives are nonetheless, upon advice of counsel, legally compelled to disclose Information or else stand liable for contempt or suffer other\ncensure or penalty, you or your Representative, as applicable, may, without liability hereunder, disclose only that portion of the Information which\nsuch counsel advises is legally required to be disclosed, provided that you and your Representative exercise your respective reasonable efforts to\npreserve the confidentiality of the Information, including, without limitation, by cooperating with the Company, at the Company's expense, to obtain\nan appropriate protective order or other reliable assurance that confidential treatment will be accorded the Information. In any event, you shall be\nresponsible for any breach of this Agreement by any of your Representatives.\nYou represent that neither you nor any of your Representatives has entered into, directly or indirectly, any agreement or understanding with\nany person (other than any agreement between you and your Representatives) with respect to a Potential Transaction or that could otherwise affect\nsuch person's decisions or actions with respect to a Potential Transaction involving the Company. In addition, you agree that, without the prior\nwritten consent of the Company, you and your Representatives will not disclose to any other person the fact that the Information has been made\navailable to you or that discussions or negotiations are taking place between the Company and you concerning the Potential Transaction or any of the\nterms, conditions or other facts with respect thereto (including the status thereof), unless in the opinion of your counsel such disclosure is required by\nlaw, rule or regulation or by any court or other governmental or regulatory authority; provided that you provide prompt written notice to the\nCompany so that the Company may seek a protective order or other appropriate remedy.\nNothing contained in this Agreement shall require either party hereto to enter into the Potential Transaction or any other transaction or to\nnegotiate for the same for any specified period of time. All Information disclosed to you shall be and remain the property of the Company and this\nAgreement shall not be construed as a license or any other grant of any right whatsoever in the Information. For clarity, no license under any patent,\ncopyright, trademark, other intellectual property right or any application therefore is hereby granted or implied by the provision of the Information to\nyou or your Representatives. Neither you nor your Representatives shall alter or obliterate any trademark or any other proprietary mark or notice\nthereof of the Company on any copy of the Information, and you shall reproduce any such mark or notice on all copies of the Information.\nYou agree that upon the request of the Company, you will return to the Company or destroy all Information furnished to you or your\nRepresentatives by or on behalf of the Company, without retaining any copies or extracts thereof, and you will destroy all portions of reports,\nanalyses, memoranda, notes or other documents prepared by you or your Representatives that contain the Information. You will confirm to us in\nwriting that destruction of all such Information has been completed. Notwithstanding the foregoing, the Company acknowledges that, in the ordinary\ncourse of your business and as a part of your customary practices, after the destruction or return of other copies of the Information, electronic copies\nof such Information may still remain on archives, hard drives, backup tapes and similar formats, and the Company acknowledges that, provided such\nInformation is not used or disclosed by you or your Representatives contrary to the terms of this Agreement, such remaining copies shall not be\ndeemed a breach of this paragraph. Furthermore, notwithstanding anything to the contrary herein, you and your Representatives may retain copies of\nany Information in order to comply with your and their legal and regulatory record-keeping obligations, and do not have to return or destroy\nInformation to the extent that retention of such Information is, in good faith, in order to comply with your or their regulators' and/or auditors'\nexpectations of best practices and/or applicable law or to defend yourself or themselves in litigation.\nIn consideration of and as a condition to the Company furnishing the Information to you under this Agreement, you agree that for a period\nof\none year from the date of this Agreement, neither you nor any of your affiliates will, directly or indirectly, solicit or employ any of the i) current\nofficers or director-level employees, without obtaining the prior written consent of the Company, or ii) other employees of the Company (so long as\nthey are employed by the Company) who are in discussion with you relating to this Agreement, without obtaining the prior written consent of the\nCompany, (it being understood that any newspaper or other general solicitation, including without limitation, web-based advertisements, not directed\nspecifically to such person shall not be deemed to be a solicitation for purposes of this provision).\nYou acknowledge and agree that the Company will be irreparably injured by a breach of this Agreement by you or your Representatives, that\nmonetary remedies may be inadequate to protect the Company against any actual or threatened breach of this Agreement by you or your\nRepresentatives, and that the Company shall be entitled to seek specific performance or other equitable relief as a remedy for any such breach\nwithout posting a bond.\n2\nFor a period of twelve (12) months commencing on the date of this Agreement, you shall not, nor shall any of your subsidiaries or\nRepresentatives, in any manner, directly or indirectly, acting alone or in concert with others, effect or seek, offer or propose (whether publicly or\notherwise) to effect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise)\nto effect or participate in, (i) any acquisition of beneficial ownership, as defined in Rule 13d-3 under the 1934 Act, of any substantial portion (i.e.,\nmore than 5%) of any securities or assets of the Company or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business\ncombination involving the Company or any of its subsidiaries; (iii) any "solicitation" of "proxies" (as such terms are used in the proxy rules of\nthe\nSecurities and Exchange Commission) or consents to vote any voting securities of the Company; or (iv) take any action that might require the\nCompany to make a announcement regarding any of the types of matters set forth above; nor shall you engage in short selling activities with respect\nto securities of the Company. The provisions of this paragraph will not prohibit the ownership by you or any of your affiliates, subsidiaries\nor\nRepresentatives of any securities of the Company or a third party that you or any of your affiliates, subsidiaries or Representatives own as of the date\nhereof or the purchase by the Company or any of the Company's affiliates of any of the securities held as of the date hereof.\nThe agreements contained in the immediately preceding paragraph shall terminate and be of no effect if (i) the Company enters into\nan\nagreement relating to any (a) merger, consolidation, business combination, binding share exchange or similar transaction involving the Company in\neach case, in which the Company will not be the entity surviving such transaction, (b) sale, lease or other disposition or series of related dispositions,\ndirectly or indirectly, by merger, consolidation or otherwise of assets of the Company or its subsidiaries representing all or substantially all of the\nconsolidated assets of the Company and its subsidiaries, (c) issue, sale or other disposition or series of related dispositions by the Company of\n(including by of merger, consolidation, binding share exchange or any similar transaction) securities (or options, rights or warrants to purchase, or\nsecurities convertible into such securities) representing 50% or more of the voting power of the Company to a single purchaser or an affiliated group\nof purchasers or (d) other transaction or series of related transactions pursuant to which any person or entity shall acquire beneficial ownership, as\nis\ndefined in Rule 13d-3 under the 1934 Act, or the right to acquire beneficial ownership of, 50% or more of the outstanding common stock of\nthe\nCompany, or (ii) any corporation, partnership, person or other entity or group commences a tender offer or exchange offer to acquire 50% or more of\nthe outstanding voting securities of the Company without the consent of the Board of Directors of the Company.\nYou acknowledge that you are aware that the securities laws of the United States prohibit any person who has material, non-public information\nconcerning the Company or a possible transaction involving the Company from purchasing or selling the Company's securities when in possession\nof\nsuch information and from communicating such information to any other person or entity under circumstances in which it is reasonably\nforeseeable that such person or entity is likely to purchase or sell such securities in reliance upon such information.\nNotwithstanding any other provision of this Agreement to the contrary, this Agreement and all of the terms, conditions, undertakings and\nprohibitions contained herein shall terminate upon the earlier to occur of (i) two (2) years after the date of this Agreement or (ii) such time as the\nInformation has been publicly disclosed by or on behalf of the Company whichever is earlier\nThis Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey. The parties consent to the\nexclusive jurisdiction of the federal and state courts located in Newark, New Jersey. This Agreement may be executed in one or more counterparts,\neach of which shall be deemed to be an original copy of this Agreement and all of which, when taken together, shall be deemed to constitute one\nand\nthe same Agreement. The exchange of copies of this Agreement and of signature pages by facsimile transmission shall constitute effective execution\nand delivery of this Agreement by the parties hereto.\n3\nPlease confirm your agreement with the foregoing by executing this Agreement in the space provided below and returning one copy of this\nAgreement to us for our files.\nVery truly yours,\n/s/ Robert F. Doman\nRobert F. Doman,\nPresident and CEO\nAccepted and agreed to as of the date\nfirst written above:\nBy: /s/ James E. Hattersley\nJames E. Hattersley\nVice President, Business Development\nSun Pharmaceutical Industries, Inc.\n4	EX-99.(E).(3) 5 d443014dex99e3.htm CONFIDENTIALITY AGREEMENT BETWEEN SUN PHARMACEUTICAL\nINDUSTRIES, INC.\nExhibit (e)(3)\nMay 11, 2012\nCONFIDENTIAL AND PROPRIETARY\nJames Hattersley\nVice President, Corp. Business Development\nSun Pharmaceutical Industries, Inc.\n270 Prospect Plains Road\nCranbury, New Jersey 08512\nRe: Confidentiality Agreement\nDear Mr. Hattersley:\nIn connection with your evaluation of a potential transaction (the “Potential Transaction”) with DUSA Pharmaceuticals, Inc. (the “Company”),\nwe are prepared to make available to you and/or your Representatives (as defined below) certain confidential information relating to the Company\nand/or the Potential Transaction. As a condition to such information being furnished to you and your Representatives, you hereby agree to treat any\nInformation (as defined below), whether prepared by the Company, its Representatives or otherwise, which is furnished to you or your\nRepresentatives now or in the future by or on behalf of the Company pursuant hereto in accordance with the terms and provisions of this agreement\n(this “Agreement”) and to take or abstain from taking certain other actions as hereinafter set forth. As used herein, a party’s “Representatives” shall\nmean such party’s directors, officers, employees, agents, affiliates and advisors (including, without limitation, such party’s attorneys, accountants,\nconsultants and financial advisors).\nThe term “Information” shall be deemed to mean (subject to the following sentence) any confidential or otherwise proprietary information\nrelating to the Company that the Company or any of its Representatives disclose to you, on or after the date of this Agreement, regardless of the\nmanner in which it is furnished, together with all portions of notes, analyses, compilations, studies, interpretations or other documents prepared by\nyou or your Representatives which contain, in whole or in part, the Information furnished to you or your Representatives pursuant to this Agreement.\nThe term “Information” shall not include, and the obligations of this Agreement shall not apply to, information which (i) is or becomes generally\navailable to the public other than as a result of an unauthorized disclosure by you or your Representatives in breach of this Agreement, (ii) was\nwithin your or any of your Representative’s possession prior to its being furnished to you by or on behalf of the Company pursuant to this\nAgreement, provided that the source of such information was not known by you to be bound by an agreement with or other contractual, legal or\nfiduciary obligation of confidentiality to the Company or any other party with respect to such information, (iii) becomes available to you or any of\nyour Representatives from a source other than the Company or any of its Representatives, provided that such source is not known by you to be\nbound by an agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to\nsuch information, or (iv) was or is developed by you or your Representatives independently of such information.\nExcept as otherwise provided herein, you hereby agree that you and your Representatives shall use the Information solely for the purpose of\nevaluating the Potential Transaction, that the Information will be kept strictly confidential by you and your Representatives, and that you and your\nRepresentatives will not disclose any of the Information in any manner whatsoever; provided, however, that (i) you may make any disclosure of the\nInformation to which the Company gives its prior written consent, (ii) any of the Information may be disclosed to your Representatives who need to\nknow the Information for the sole purpose of evaluating the Potential Transaction, who agree to nondisclosure and non-use terms with respect to the\nInformation that are no less strict than the terms of this Agreement and (iii) any Information may be disclosed if required by operation of law, rule or\nregulation or by any court or other governmental or regulatory authority; provided that you provide prompt written notice to the Company so that the\nCompany may seek a protective order or other appropriate remedy. If, in the absence of a protective order or other appropriate remedy or the receipt\nof a waiver by the Company, you or any of your\n1\nRepresentatives are nonetheless, upon advice of counsel, legally compelled to disclose Information or else stand liable for contempt or suffer other\ncensure or penalty, you or your Representative, as applicable, may, without liability hereunder, disclose only that portion of the Information which\nsuch counsel advises is legally required to be disclosed, provided that you and your Representative exercise your respective reasonable efforts to\npreserve the confidentiality of the Information, including, without limitation, by cooperating with the Company, at the Company’s expense, to obtain\nan appropriate protective order or other reliable assurance that confidential treatment will be accorded the Information. In any event, you shall be\nresponsible for any breach of this Agreement by any of your Representatives.\nYou represent that neither you nor any of your Representatives has entered into, directly or indirectly, any agreement or understanding with\nany person (other than any agreement between you and your Representatives) with respect to a Potential Transaction or that could otherwise affect\nsuch person’s decisions or actions with respect to a Potential Transaction involving the Company. In addition, you agree that, without the prior\nwritten consent of the Company, you and your Representatives will not disclose to any other person the fact that the Information has been made\navailable to you or that discussions or negotiations are taking place between the Company and you concerning the Potential Transaction or any of the\nterms, conditions or other facts with respect thereto (including the status thereof), unless in the opinion of your counsel such disclosure is required by\nlaw, rule or regulation or by any court or other governmental or regulatory authority; provided that you provide prompt written notice to the\nCompany so that the Company may seek a protective order or other appropriate remedy.\nNothing contained in this Agreement shall require either party hereto to enter into the Potential Transaction or any other transaction or to\nnegotiate for the same for any specified period of time. All Information disclosed to you shall be and remain the property of the Company and this\nAgreement shall not be construed as a license or any other grant of any right whatsoever in the Information. For clarity, no license under any patent,\ncopyright, trademark, other intellectual property right or any application therefore is hereby granted or implied by the provision of the Information to\nyou or your Representatives. Neither you nor your Representatives shall alter or obliterate any trademark or any other proprietary mark or notice\nthereof of the Company on any copy of the Information, and you shall reproduce any such mark or notice on all copies of the Information.\nYou agree that upon the request of the Company, you will return to the Company or destroy all Information furnished to you or your\nRepresentatives by or on behalf of the Company, without retaining any copies or extracts thereof, and you will destroy all portions of reports,\nanalyses, memoranda, notes or other documents prepared by you or your Representatives that contain the Information. You will confirm to us in\nwriting that destruction of all such Information has been completed. Notwithstanding the foregoing, the Company acknowledges that, in the ordinary\ncourse of your business and as a part of your customary practices, after the destruction or return of other copies of the Information, electronic copies\nof such Information may still remain on archives, hard drives, backup tapes and similar formats, and the Company acknowledges that, provided such\nInformation is not used or disclosed by you or your Representatives contrary to the terms of this Agreement, such remaining copies shall not be\ndeemed a breach of this paragraph. Furthermore, notwithstanding anything to the contrary herein, you and your Representatives may retain copies of\nany Information in order to comply with your and their legal and regulatory record-keeping obligations, and do not have to return or destroy\nInformation to the extent that retention of such Information is, in good faith, in order to comply with your or their regulators’ and/or auditors’\nexpectations of best practices and/or applicable law or to defend yourself or themselves in litigation.\nIn consideration of and as a condition to the Company furnishing the Information to you under this Agreement, you agree that for a period of\none year from the date of this Agreement, neither you nor any of your affiliates will, directly or indirectly, solicit or employ any of the i) current\nofficers or director-level employees, without obtaining the prior written consent of the Company, or ii) other employees of the Company (so long as\nthey are employed by the Company) who are in discussion with you relating to this Agreement, without obtaining the prior written consent of the\nCompany, (it being understood that any newspaper or other general solicitation, including without limitation, web-based advertisements, not directed\nspecifically to such person shall not be deemed to be a solicitation for purposes of this provision).\nYou acknowledge and agree that the Company will be irreparably injured by a breach of this Agreement by you or your Representatives, that\nmonetary remedies may be inadequate to protect the Company against any actual or threatened breach of this Agreement by you or your\nRepresentatives, and that the Company shall be entitled to seek specific performance or other equitable relief as a remedy for any such breach\nwithout posting a bond.\n2\nFor a period of twelve (12) months commencing on the date of this Agreement, you shall not, nor shall any of your subsidiaries or\nRepresentatives, in any manner, directly or indirectly, acting alone or in concert with others, effect or seek, offer or propose (whether publicly or\notherwise) to effect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise)\nto effect or participate in, (i) any acquisition of beneficial ownership, as defined in Rule 13d-3 under the 1934 Act, of any substantial portion (i.e.,\nmore than 5%) of any securities or assets of the Company or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business\ncombination involving the Company or any of its subsidiaries; (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the\nSecurities and Exchange Commission) or consents to vote any voting securities of the Company; or (iv) take any action that might require the\nCompany to make a announcement regarding any of the types of matters set forth above; nor shall you engage in short selling activities with respect\nto securities of the Company. The provisions of this paragraph will not prohibit the ownership by you or any of your affiliates, subsidiaries or\nRepresentatives of any securities of the Company or a third party that you or any of your affiliates, subsidiaries or Representatives own as of the date\nhereof or the purchase by the Company or any of the Company’s affiliates of any of the securities held as of the date hereof.\nThe agreements contained in the immediately preceding paragraph shall terminate and be of no effect if (i) the Company enters into an\nagreement relating to any (a) merger, consolidation, business combination, binding share exchange or similar transaction involving the Company in\neach case, in which the Company will not be the entity surviving such transaction, (b) sale, lease or other disposition or series of related dispositions,\ndirectly or indirectly, by merger, consolidation or otherwise of assets of the Company or its subsidiaries representing all or substantially all of the\nconsolidated assets of the Company and its subsidiaries, (c) issue, sale or other disposition or series of related dispositions by the Company of\n(including by of merger, consolidation, binding share exchange or any similar transaction) securities (or options, rights or warrants to purchase, or\nsecurities convertible into such securities) representing 50% or more of the voting power of the Company to a single purchaser or an affiliated group\nof purchasers or (d) other transaction or series of related transactions pursuant to which any person or entity shall acquire beneficial ownership, as is\ndefined in Rule 13d-3 under the 1934 Act, or the right to acquire beneficial ownership of, 50% or more of the outstanding common stock of the\nCompany, or (ii) any corporation, partnership, person or other entity or group commences a tender offer or exchange offer to acquire 50% or more of\nthe outstanding voting securities of the Company without the consent of the Board of Directors of the Company.\nYou acknowledge that you are aware that the securities laws of the United States prohibit any person who has material, non-public information\nconcerning the Company or a possible transaction involving the Company from purchasing or selling the Company’s securities when in possession\nof such information and from communicating such information to any other person or entity under circumstances in which it is reasonably\nforeseeable that such person or entity is likely to purchase or sell such securities in reliance upon such information.\nNotwithstanding any other provision of this Agreement to the contrary, this Agreement and all of the terms, conditions, undertakings and\nprohibitions contained herein shall terminate upon the earlier to occur of (i) two (2) years after the date of this Agreement or (ii) such time as the\nInformation has been publicly disclosed by or on behalf of the Company whichever is earlier\nThis Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey. The parties consent to the\nexclusive jurisdiction of the federal and state courts located in Newark, New Jersey. This Agreement may be executed in one or more counterparts,\neach of which shall be deemed to be an original copy of this Agreement and all of which, when taken together, shall be deemed to constitute one and\nthe same Agreement. The exchange of copies of this Agreement and of signature pages by facsimile transmission shall constitute effective execution\nand delivery of this Agreement by the parties hereto.\n3\nPlease confirm your agreement with the foregoing by executing this Agreement in the space provided below and returning one copy of this\nAgreement to us for our files.\nVery truly yours,\n/s/ Robert F. Doman\nRobert F. Doman,\nPresident and CEO\nAccepted and agreed to as of the date\nfirst written above:\nBy: /s/ James E. Hattersley\nJames E. Hattersley\nVice President, Business Development\nSun Pharmaceutical Industries, Inc.\n4
5279cc4e2863c1adbf1a5817cb4386dc.pdf	effective_date jurisdiction party term	EX-99.(D)(4) 8 a2226057zex-99 _d4.htm EX-99.(D)(4)\nExhibit (d)(4)\nADEPT TECHNOLOGY, INC.\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made and entered into as of November 7, 2014 (the “Effective\nDate”) by and between the Adept Technology, Inc. (“Adept”), a Delaware corporation, having its principal office at, located at 5960 Inglewood\nDrive, Pleasanton, CA 94588, and Omron Electronics LLC (“Company”), a Delaware limited liability company, having its principal office at\n2895 Greenspoint Parkway, Hoffman Estates, Illinois 60169. The parties wish to enter into discussions for and/or evaluate a prospective business\nagreement or transaction. Such discussions and evaluations, and any subsequent business transactions between the parties, are the “Purpose”.\nThe parties hereby agree as follows:\n1. As used herein, “Confidential Information” shall mean any and all technical and non-technical information, including technical data, trade\nsecrets. know how, processes, developments, techniques, methodologies, algorithms, software programs (including source code), designs,\ndrawings, formulas or test data relating to any project or services, service offerings, any financial, marketing, operational, legal, personnel,\ncustomer, potential customer, partner, potential partner, supply, strategic and business information and documentation, in all cases whether in\ntangible or intangible form and including information learned by observation during visits and/or demonstrations, provided by either party to the\nother that is marked or identified orally or in writing as confidential or that would be reasonably understood based on the facts and circumstances\nthat would be understood by a reasonable person in the same situation to be confidential.\n2. Notwithstanding Section 1, the term “Confidential Information” shall not include information or documentation that the receiving party can\nshow: (a) was already known to the receiving party prior to the disclosure of such information or documentation; (b) is disclosed to the receiving\nparty without obligation of confidentiality by a third party who has the right to make such disclosure; (c) is or becomes publicly-known through\nno fault of the receiving party; or (d) is independently developed by the receiving party without use of the Confidential Information.\n3. Each party agrees that it will hold in strict confidence and not disclose to any third party Confidential Information of the other, except as\napproved in writing by the other party to this Agreement. Notwithstanding the foregoing, Company is permitted to disclose Confidential\nInformation of Adept to personnel of Omron Corporation and Omron Management Center of America, Inc., provided that Company ensures\ncompliance by such companies and persons with the terms and conditions hereof and Company remains responsible for any non-compliance.\nEach party will use the Confidential Information for no purpose other than for the Purpose. Each party will only disclose such information based\non the Purpose to its professional advisors, employees and independent contractors who have a “need to know” such information, who are\ninformed that the information is confidential and who are under obligations of confidentiality at least as stringent as those set forth herein. In all\ncases, the party receiving information shall be responsible for compliance with this Agreement with regard to itself and any persons within this\nSection or otherwise to whom disclosure is made by it. The party to whom Confidential Information was disclosed shall not be in violation of\nthis Section 3 for a disclosure that was in response to a valid order by a court or other governmental body, or that is used for the bona fide\ndefense or pursuit of legal action based on the written advice of counsel, provided that in such a case or cases the party obligated to make such\ndisclosure provides the other party with reasonable prior written notice of such disclosure in order to permit the other party to seek to limit the\ndisclosure and/or seek confidential treatment of such information.\n4. Upon the written request of the other party, each party shall promptly return to the other (or destroy if destruction is requested and provide\nwritten certification of destruction) all documents and other tangible and intangible materials representing the other’s Confidential Information\nand all copies thereof.\n5. The parties recognize and agree that nothing contained in this Agreement shall be construed as granting any property rights, by license or\notherwise, to any Confidential Information of the other party disclosed pursuant to this Agreement, or to any invention or any trade secret, patent,\ncopyright, trademark, or other intellectual property right associated with such Confidential Information. Neither party shall use, copy, display,\npost, or prepare derivative works of or improvements to the Confidential Information, other than for the Purpose, or make, have made, use or sell\nfor any purpose any product, service or other item incorporating or derived from any Confidential Information of the other party.\n1\n6. Confidential Information shall not be reproduced in any form except as reasonably required for the Purpose. Any reproduction of any\nConfidential Information of the other party by either party shall remain the property of the disclosing party and shall contain any and all\nconfidential or proprietary notices or legends which appear on the original, unless otherwise authorized in writing by the other party.\n7. This Agreement shall continue in full force and effect for so long as the parties continue to exchange Confidential Information. This\nAgreement may be terminated by either party at any time upon thirty (30) days written notice to the other party, however its terms shall survive\nthe termination of this Agreement for a period of five (5) years from the date of such termination.\n8. Each party recognizes that the disclosure of the other party’s Confidential Information may give rise to irreparable injury and acknowledges\nthat remedies other than injunctive relief will not be adequate. Accordingly, each party shall have the right to seek equitable and injunctive relief\n(without the need to post a bond or other security) to prevent the unauthorized disclosure of its Confidential Information, as well as such\ndamages or other relief as may be available in law or equity for any unauthorized use or disclosure of such information.\n9. Nothing contained in this Agreement shall entitle a party to rely on the other or its advisors, or require a party to enter into any agreement or\ntransaction, or preclude a party from entering into any agreement or transaction or pursuing its lines of business, or obligate either party to the\nother party in any other way, except as expressly provided in this Agreement or in any other written agreement existing or entered into by the\nparties hereafter. Nothing contained in this Agreement shall compel either party to furnish information to the other party or to negotiate any\ntransaction.\n10. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such enforceability or invalidity shall not\nrender this Agreement unenforceable or invalid as a whole and in such event, such provision shall be changed and interpreted so as to best\naccomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.\n11. No delay or omission by a party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such\nright or power. A waiver by either party of any breach or covenant shall not be construed to be a waiver of any succeeding breach or any other\ncovenant.\n12. Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given to the party to be notified:\n(a) upon personal delivery to the party; (b) one (1) business day following deposit for delivery to the party for delivery within the United States\nwith a nationally recognized overnight courier; (c) for delivery to the party via registered or certified mail, three (3) business days after deposit\nwith the U.S. Post Office for mailing or (d) upon confirmation of facsimile transmission, at the time noted on such confirmation sheet to the\nparty. In all cases, notice shall be made to the party at the location specified on the signature page of this Agreement. Each of the parties to this\nAgreement may change the location for notice by giving notice to the other party in accordance with the notice provisions contained in this\nparagraph.\n13. This Agreement shall be governed by and construed in accordance with the internal laws of the State of California, U.S.A. without reference\nto conflict of law principles. Any disputes under this Agreement may be brought in the state courts or the Federal courts located in Alameda\nCounty, and the parties hereby consent to the exclusive subject matter personal jurisdiction and venue of these courts. This Agreement may not\nbe amended except in writing signed by both parties hereto.\n14. Neither party shall knowingly communicate any information to the other in violation of the rights of any third party.\n15. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party.\nNotwithstanding the foregoing, this Agreement shall be binding on each party’s lawful successors and assigns.\n16. The prevailing party, or if there is not one, the substantially prevailing party, in any action to enforce this Agreement shall be entitled to\nattorneys fees and costs in addition to any other available relief.\n17. No amendment to, or change, waiver or discharge of, any provision of this Agreement shall be valid unless in writing and signed by an\nauthorized representative of each party. This Agreement represents the entire agreement between the parties with respect to its subject matter and\nthere are no other representations, understandings or agreements between the parties relative to such subject matter,\n2\nexcept for any confidentiality or non-disclosure obligations that may be set forth in other written agreements signed by all parties thereto (“other\nNDAs”). In the event of an apparent conflict between or among provisions of this Agreement and provisions of other NDAs between the parties,\nsuch provisions shall be read in a mutually consistent way, or if no such reading is reasonably possible, the provisions most protective of\nConfidential Information shall take precedence over conflicting or less protective provisions. This Agreement may be executed in any number of\ncounterparts, each of which shall be deemed an original, but all of which taken together shall constitute one single agreement between the parties.\n18. The parties represent and acknowledge that Confidential Information may include material nonpublic information of the other party. The\nparties agree as recipients of such material nonpublic information, and agree to require any authorized recipient of such material nonpublic\ninformation, to not trade directly or indirectly in the other party’s securities while in possession of such material nonpublic information of the\nother party.\nIN WITNESS WHEREOF, the parties hereto have caused this Mutual Non-Disclosure Agreement to be executed as of the Effective Date.\nAGREED TO:\nAGREED TO:\nADEPT TECHNOLOGY, INC.\nOMRON ELECTRONICS LLC\n/s/ Rob Cain\n/s/ Nigel Blakeway\nSIGNATURE\nSIGNATURE\nRob Cain\nNigel Blakeway\nPRINT NAME\nPRINT NAME\nPresident and Chief Executive Officer\nChief Executive Officer\nTITLE\nTITLE\nAddress: 5960 Inglewood Drive\nAddress: 2895 Greenspoint Parkway\nPleasanton, CA 94588\nHoffman Estates, Illinois 60169\nPhone:\n925.245.3400\nPhone:\nFax:\n925.243.3510\nFax:\n3	EX-99.(D)(4) 8 a2226057zex-99_d4.htm EX-99.(D)(4)\nExhibit (d)(4)\nADEPT TECHNOLOGY, INC.\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made and entered into as of November 7, 2014 (the “Effective\nDate”) by and between the Adept Technology, Inc. (“Adept”), a Delaware corporation, having its principal office at, located at 5960 Inglewood\nDrive, Pleasanton, CA 94588, and Omron Electronics LL.C (“Company”), a Delaware limited liability company, having its principal office at\n2895 Greenspoint Parkway, Hoffman Estates, Illinois 60169. The parties wish to enter into discussions for and/or evaluate a prospective business\nagreement or transaction. Such discussions and evaluations, and any subsequent business transactions between the parties, are the “Purpose”.\nThe parties hereby agree as follows:\n1. As used herein, “Confidential Information” shall mean any and all technical and non-technical information, including technical data, trade\nsecrets. know how, processes, developments, techniques, methodologies, algorithms, software programs (including source code), designs,\ndrawings, formulas or test data relating to any project or services, service offerings, any financial, marketing, operational, legal, personnel,\ncustomer, potential customer, partner, potential partner, supply, strategic and business information and documentation, in all cases whether in\ntangible or intangible form and including information learned by observation during visits and/or demonstrations, provided by either party to the\nother that is marked or identified orally or in writing as confidential or that would be reasonably understood based on the facts and circumstances\nthat would be understood by a reasonable person in the same situation to be confidential.\n2. Notwithstanding Section 1, the term “Confidential Information” shall not include information or documentation that the receiving party can\nshow: (a) was already known to the receiving party prior to the disclosure of such information or documentation; (b) is disclosed to the receiving\nparty without obligation of confidentiality by a third party who has the right to make such disclosure; (c) is or becomes publicly-known through\nno fault of the receiving party; or (d) is independently developed by the receiving party without use of the Confidential Information.\n3. Each party agrees that it will hold in strict confidence and not disclose to any third party Confidential Information of the other, except as\napproved in writing by the other party to this Agreement. Notwithstanding the foregoing, Company is permitted to disclose Confidential\nInformation of Adept to personnel of Omron Corporation and Omron Management Center of America, Inc., provided that Company ensures\ncompliance by such companies and persons with the terms and conditions hereof and Company remains responsible for any non-compliance.\nEach party will use the Confidential Information for no purpose other than for the Purpose. Each party will only disclose such information based\non the Purpose to its professional advisors, employees and independent contractors who have a “need to know” such information, who are\ninformed that the information is confidential and who are under obligations of confidentiality at least as stringent as those set forth herein. In all\ncases, the party receiving information shall be responsible for compliance with this Agreement with regard to itself and any persons within this\nSection or otherwise to whom disclosure is made by it. The party to whom Confidential Information was disclosed shall not be in violation of\nthis Section 3 for a disclosure that was in response to a valid order by a court or other governmental body, or that is used for the bona fide\ndefense or pursuit of legal action based on the written advice of counsel, provided that in such a case or cases the party obligated to make such\ndisclosure provides the other party with reasonable prior written notice of such disclosure in order to permit the other party to seek to limit the\ndisclosure and/or seek confidential treatment of such information.\n4. Upon the written request of the other party, each party shall promptly return to the other (or destroy if destruction is requested and provide\nwritten certification of destruction) all documents and other tangible and intangible materials representing the other’s Confidential Information\nand all copies thereof.\n5. The parties recognize and agree that nothing contained in this Agreement shall be construed as granting any property rights, by license or\notherwise, to any Confidential Information of the other party disclosed pursuant to this Agreement, or to any invention or any trade secret, patent,\ncopyright, trademark, or other intellectual property right associated with such Confidential Information. Neither party shall use, copy, display,\npost, or prepare derivative works of or improvements to the Confidential Information, other than for the Purpose, or make, have made, use or sell\nfor any purpose any product, service or other item incorporating or derived from any Confidential Information of the other party.\n1\n \n6. Confidential Information shall not be reproduced in any form except as reasonably required for the Purpose. Any reproduction of any\nConfidential Information of the other party by either party shall remain the property of the disclosing party and shall contain any and all\nconfidential or proprietary notices or legends which appear on the original, unless otherwise authorized in writing by the other party.\n7. This Agreement shall continue in full force and effect for so long as the parties continue to exchange Confidential Information. This\nAgreement may be terminated by either party at any time upon thirty (30) days written notice to the other party, however its terms shall survive\nthe termination of this Agreement for a period of five (5) years from the date of such termination.\n8. Each party recognizes that the disclosure of the other party’s Confidential Information may give rise to irreparable injury and acknowledges\nthat remedies other than injunctive relief will not be adequate. Accordingly, each party shall have the right to seek equitable and injunctive relief\n(without the need to post a bond or other security) to prevent the unauthorized disclosure of its Confidential Information, as well as such\ndamages or other relief as may be available in law or equity for any unauthorized use or disclosure of such information.\n9. Nothing contained in this Agreement shall entitle a party to rely on the other or its advisors, or require a party to enter into any agreement or\ntransaction, or preclude a party from entering into any agreement or transaction or pursuing its lines of business, or obligate either party to the\nother party in any other way, except as expressly provided in this Agreement or in any other written agreement existing or entered into by the\nparties hereafter. Nothing contained in this Agreement shall compel either party to furnish information to the other party or to negotiate any\ntransaction.\n10. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such enforceability or invalidity shall not\nrender this Agreement unenforceable or invalid as a whole and in such event, such provision shall be changed and interpreted so as to best\naccomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.\n11. No delay or omission by a party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such\nright or power. A waiver by either party of any breach or covenant shall not be construed to be a waiver of any succeeding breach or any other\ncovenant.\n12. Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given to the party to be notified:\n(a) upon personal delivery to the party; (b) one (1) business day following deposit for delivery to the party for delivery within the United States\nwith a nationally recognized overnight courier; (c) for delivery to the party via registered or certified mail, three (3) business days after deposit\nwith the U.S. Post Office for mailing or (d) upon confirmation of facsimile transmission, at the time noted on such confirmation sheet to the\nparty. In all cases, notice shall be made to the party at the location specified on the signature page of this Agreement. Each of the parties to this\nAgreement may change the location for notice by giving notice to the other party in accordance with the notice provisions contained in this\nparagraph.\n13. This Agreement shall be governed by and construed in accordance with the internal laws of the State of California, U.S.A. without reference\nto conflict of law principles. Any disputes under this Agreement may be brought in the state courts or the Federal courts located in Alameda\nCounty, and the parties hereby consent to the exclusive subject matter personal jurisdiction and venue of these courts. This Agreement may not\nbe amended except in writing signed by both parties hereto.\n14. Neither party shall knowingly communicate any information to the other in violation of the rights of any third party.\n15. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party.\nNotwithstanding the foregoing, this Agreement shall be binding on each party’s lawful successors and assigns.\n16. The prevailing party, or if there is not one, the substantially prevailing party, in any action to enforce this Agreement shall be entitled to\nattorneys fees and costs in addition to any other available relief.\n17. No amendment to, or change, waiver or discharge of, any provision of this Agreement shall be valid unless in writing and signed by an\nauthorized representative of each party. This Agreement represents the entire agreement between the parties with respect to its subject matter and\nthere are no other representations, understandings or agreements between the parties relative to such subject matter,\n2\n \nexcept for any confidentiality or non-disclosure obligations that may be set forth in other written agreements signed by all parties thereto (“other\nNDAs”). In the event of an apparent conflict between or among provisions of this Agreement and provisions of other NDAs between the parties,\nsuch provisions shall be read in a mutually consistent way, or if no such reading is reasonably possible, the provisions most protective of\nConfidential Information shall take precedence over conflicting or less protective provisions. This Agreement may be executed in any number of\ncounterparts, each of which shall be deemed an original, but all of which taken together shall constitute one single agreement between the parties.\n18. The parties represent and acknowledge that Confidential Information may include material nonpublic information of the other party. The\nparties agree as recipients of such material nonpublic information, and agree to require any authorized recipient of such material nonpublic\ninformation, to not trade directly or indirectly in the other party’s securities while in possession of such material nonpublic information of the\nother party.\nIN WITNESS WHEREQOF, the parties hereto have caused this Mutual Non-Disclosure Agreement to be executed as of the Effective Date.\nAGREED TO: AGREED TO:\nADEPT TECHNOLOGY, INC. OMRON ELECTRONICSLLC\n/s/ Rob Cain /s/ Nigel Blakeway\nSIGNATURE SIGNATURE\nRob Cain Nigel Blakeway\nPRINT NAME PRINT NAME\nPresident and Chief Executive Officer Chief Executive Officer\nTITLE TITLE\nAddress: 5960 Inglewood Drive Address: 2895 Greenspoint Parkway\nPleasanton, CA 94588 Hoffman Estates, Illinois 60169\nPhone: 925.245.3400 Phone:\nFax: 925.243.3510 Fax:\n	EX-99.(D)(4) 8 a2226057zex-99_d4.htm EX-99.(D)(4)\nExhibit (d)(4)\nADEPT TECHNOLOGY, INC.\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis MUTUAL NONDISCLOSURE AGREEMENT (this "Agreement") is made and entered into as of November 7, 2014 (the "Effective\nDate") by and between the Adept Technology, Inc. ("Adept"), a Delaware corporation, having its principal office at, located at 5960 Inglewood\nDrive, Pleasanton, CA 94588, and Omron Electronics LLC ("Company"), a Delaware limited liability company, having its principal office at\n2895 Greenspoint Parkway, Hoffman Estates, Illinois 60169. The parties wish to enter into discussions for and/or evaluate a prospective business\nagreement or transaction. Such discussions and evaluations, and any subsequent business transactions between the parties, are the "Purpose".\nThe parties hereby agree as follows:\n1. As used herein, "Confidential Information" shall mean any and all technical and non-technical information, including technical data, trade\nsecrets. know how, processes, developments, techniques, methodologies, algorithms, software programs (including source code), designs,\ndrawings, formulas or test data relating to any project or services, service offerings, any financial, marketing, operational, legal, personnel,\ncustomer, potential customer, partner, potential partner, supply, strategic and business information and documentation, in all cases whether in\ntangible or intangible form and including information learned by observation during visits and/or demonstrations, provided by either party to the\nother that is marked or identified orally or in writing as confidential or that would be reasonably understood based on the facts and circumstances\nthat would be understood by a reasonable person in the same situation to be confidential.\n2. Notwithstanding Section 1, the term "Confidential Information" shall not include information or documentation that the receiving party can\nshow: (a) was already known to the receiving party prior to the disclosure of such information or documentation; (b) is disclosed to the receiving\nparty without obligation of confidentiality by a third party who has the right to make such disclosure; (c) is or becomes publicly-known through\nno fault of the receiving party; or (d) is independently developed by the receiving party without use of the Confidential Information.\n3. Each party agrees that it will hold in strict confidence and not disclose to any third party Confidential Information of the other, except\nas\napproved in writing by the other party to this Agreement. Notwithstanding the foregoing, Company is permitted to disclose Confidential\nInformation\nof\nAdept\nto\npersonnel\nof\nOmron\nCorporation\nand\nOmron\nManagement\nCenter\nof\nAmerica,\nInc.,\nprovided\nthat\nCompany\nensures\ncompliance by such companies and persons with the terms and conditions hereof and Company remains responsible for any non-compliance.\nEach party will use the Confidential Information for no purpose other than for the Purpose. Each party will only disclose such information based\non the Purpose to its professional advisors, employees and independent contractors who have a "need to know" such information, who\nare\ninformed that the information is confidential and who are under obligations of confidentiality at least as stringent as those set forth herein. In all\ncases, the party receiving information shall be responsible for compliance with this Agreement with regard to itself and any persons within this\nSection or otherwise to whom disclosure is made by it. The party to whom Confidential Information was disclosed shall not be in violation of\nthis Section 3 for a disclosure that was in response to a valid order by a court or other governmental body, or that is used for the bona fide\ndefense or pursuit of legal action based on the written advice of counsel, provided that in such a case or cases the party obligated to make such\ndisclosure provides the other party with reasonable prior written notice of such disclosure in order to permit the other party to seek to limit\nthe\ndisclosure and/or seek confidential treatment of such information.\n4. Upon the written request of the other party, each party shall promptly return to the other (or destroy if destruction is requested and provide\nwritten certification of destruction) all documents and other tangible and intangible materials representing the other's Confidential Information\nand all copies thereof.\n5. The parties recognize and agree that nothing contained in this Agreement shall be construed as granting any property rights, by license or\notherwise, to any Confidential Information of the other party disclosed pursuant to this Agreement, or to any invention or any trade secret, patent,\ncopyright, trademark, or other intellectual property right associated with such Confidential Information. Neither party shall use, copy, display,\npost, or prepare derivative works of or improvements to the Confidential Information, other than for the Purpose, or make, have made, use or sell\nfor any purpose any product, service or other item incorporating or derived from any Confidential Information of the other party.\n1\n6. Confidential Information shall not be reproduced in any form except as reasonably required for the Purpose. Any reproduction of any\nConfidential Information of the other party by either party shall remain the property of the disclosing party and shall contain any and all\nconfidential or proprietary notices or legends which appear on the original, unless otherwise authorized in writing by the other party.\n7. This Agreement shall continue in full force and effect for so long as the parties continue to exchange Confidential Information. This\nAgreement may be terminated by either party at any time upon thirty (30) days written notice to the other party, however its terms shall survive\nthe termination of this Agreement for a period of five (5) years from the date of such termination.\n8. Each party recognizes that the disclosure of the other party's Confidentia Information may give rise to irreparable injury and acknowledges\nthat remedies other than injunctive relief will not be adequate. Accordingly, each party shall have the right to seek equitable and injunctive relief\n(without the need to post a bond or other security) to prevent the unauthorized disclosure of its Confidentia Information as well as such\ndamages or other relief as may be available in law or equity for any unauthorized use or disclosure of such information.\n9. Nothing contained in this Agreement shall entitle a party to rely on the other or its advisors, or require a party to enter into any agreement\nor\ntransaction, or preclude a party from entering into any agreement or transaction or pursuing its lines of business, or obligate either party\nto\nthe\nother party in any other way, except as expressly provided in this Agreement or in any other written agreement existing or entered into by the\nparties hereafter. Nothing contained in this Agreement shall compel either party to furnish information to the other party or to negotiate any\ntransaction.\n10. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such enforceability or invalidity shall not\nrender this Agreement unenforceable or invalid as a whole and in such event, such provision shall be changed and interpreted so as to best\naccomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.\n11. No delay or omission by a party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such\nright or power. A waiver by either party of any breach or covenant shall not be construed to be a waiver of any succeeding breach or any other\ncovenant.\n12. Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given to the party to be notified:\n(a) upon personal delivery to the party; (b) one (1) business day following deposit for delivery to the party for delivery within the United States\nwith a nationally recognized overnight courier; (c) for delivery to the party via registered or certified mail, three (3) business days after\ndeposit\nwith the U.S. Post Office for mailing or (d) upon confirmation of facsimile transmission, at the time noted on such confirmation sheet to the\nparty. In all cases, notice shall be made to the party at the location specified on the signature page of this Agreement. Each of the parties to this\nAgreement may change the location for notice by giving notice to the other party in accordance with the notice provisions contained in this\nparagraph.\n13. This Agreement shall be governed by and construed in accordance with the internal laws of the State of California, U.S.A. without reference\nto conflict of law principles. Any disputes under this Agreement may be brought in the state courts or the Federal courts located in Alameda\nCounty, and the parties hereby consent to the exclusive subject matter personal jurisdiction and venue of these courts. This Agreement may not\nbe amended except in writing signed by both parties hereto.\n14. Neither party shall knowingly communicate any information to the other in violation of the rights of any third party.\n15. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party.\nNotwithstanding the foregoing, this Agreement shall be binding on each party's lawful successors and assigns.\n16. The prevailing party, or if there is not one, the substantially prevailing party, in any action to enforce this Agreement shall be entitled to\nattorneys fees and costs in addition to any other available relief.\n17. No amendment to, or change, waiver or discharge of, any provision of this Agreement shall be valid unless in writing and signed by an\nauthorized representative of each party. This Agreement represents the entire agreement between the parties with respect to its subject matter and\nthere are no other representations, understandings or agreements between the parties relative to such subject matter,\n2\nexcept for any confidentiality or non-disclosure obligations that may be set forth in other written agreements signed by all parties thereto ("other\nNDAs"). In the event of an apparent conflict between or among provisions of this Agreement and provisions of other NDAs between the parties,\nsuch provisions shall be read in a mutually consistent way, or if no such reading is reasonably possible, the provisions most protective of\nConfidential Information shall take precedence over conflicting or less protective provisions. This Agreement may be executed in any number of\ncounterparts, each of which shall be deemed an original, but all of which taken together shall constitute one single agreement between the parties.\n18. The parties represent and acknowledge that Confidential Information may include material nonpublic information of the other party. The\nparties agree as recipients of such material nonpublic information, and agree to require any authorized recipient of such material nonpublic\ninformation, to not trade directly or indirectly in the other party's securities while in possession of such material nonpublic information of the\nother party.\nIN WITNESS WHEREOF, the parties hereto have caused this Mutual Non-Disclosure Agreement to be executed as of the Effective Date.\nAGREED TO:\nAGREED TO:\nADEPT TECHNOLOGY, INC.\nOMRON ELECTRONICS LLC\n/s/ Rob Cain\n/s/ Nigel Blakeway\nSIGNATURE\nSIGNATURE\nRob Cain\nNigel Blakeway\nPRINT NAME\nPRINT NAME\nPresident and Chief Executive Officer\nChief Executive Officer\nTITLE\nTITLE\nAddress: 5960 Inglewood Drive\nAddress: 2895 Greenspoint Parkway\nPleasanton, CA 94588\nHoffman Estates, Illinois 60169\nPhone:\n925.245.3400\nPhone:\nFax:\n925.243.3510\nFax:\n3	EX-99.(D)(4) 8 a2226057zex-99 _d4.htm EX-99.(D)(4)\nExhibit (d)(4)\nADEPT TECHNOLOGY, INC.\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made and entered into as of November 7, 2014 (the “Effective\nDate”) by and between the Adept Technology, Inc. (“Adept”), a Delaware corporation, having its principal office at, located at 5960 Inglewood\nDrive, Pleasanton, CA 94588, and Omron Electronics LLC (“Company”), a Delaware limited liability company, having its principal office at\n2895 Greenspoint Parkway, Hoffman Estates, Illinois 60169. The parties wish to enter into discussions for and/or evaluate a prospective business\nagreement or transaction. Such discussions and evaluations, and any subsequent business transactions between the parties, are the “Purpose”.\nThe parties hereby agree as follows:\n1. As used herein, “Confidential Information” shall mean any and all technical and non-technical information, including technical data, trade\nsecrets. know how, processes, developments, techniques, methodologies, algorithms, software programs (including source code), designs,\ndrawings, formulas or test data relating to any project or services, service offerings, any financial, marketing, operational, legal, personnel,\ncustomer, potential customer, partner, potential partner, supply, strategic and business information and documentation, in all cases whether in\ntangible or intangible form and including information learned by observation during visits and/or demonstrations, provided by either party to the\nother that is marked or identified orally or in writing as confidential or that would be reasonably understood based on the facts and circumstances\nthat would be understood by a reasonable person in the same situation to be confidential.\n2. Notwithstanding Section 1, the term “Confidential Information” shall not include information or documentation that the receiving party can\nshow: (a) was already known to the receiving party prior to the disclosure of such information or documentation; (b) is disclosed to the receiving\nparty without obligation of confidentiality by a third party who has the right to make such disclosure; (c) is or becomes publicly-known through\nno fault of the receiving party; or (d) is independently developed by the receiving party without use of the Confidential Information.\n3. Each party agrees that it will hold in strict confidence and not disclose to any third party Confidential Information of the other, except as\napproved in writing by the other party to this Agreement. Notwithstanding the foregoing, Company is permitted to disclose Confidential\nInformation of Adept to personnel of Omron Corporation and Omron Management Center of America, Inc., provided that Company ensures\ncompliance by such companies and persons with the terms and conditions hereof and Company remains responsible for any non-compliance.\nEach party will use the Confidential Information for no purpose other than for the Purpose. Each party will only disclose such information based\non the Purpose to its professional advisors, employees and independent contractors who have a “need to know” such information, who are\ninformed that the information is confidential and who are under obligations of confidentiality at least as stringent as those set forth herein. In all\ncases, the party receiving information shall be responsible for compliance with this Agreement with regard to itself and any persons within this\nSection or otherwise to whom disclosure is made by it. The party to whom Confidential Information was disclosed shall not be in violation of\nthis Section 3 for a disclosure that was in response to a valid order by a court or other governmental body, or that is used for the bona fide\ndefense or pursuit of legal action based on the written advice of counsel, provided that in such a case or cases the party obligated to make such\ndisclosure provides the other party with reasonable prior written notice of such disclosure in order to permit the other party to seek to limit the\ndisclosure and/or seek confidential treatment of such information.\n4. Upon the written request of the other party, each party shall promptly return to the other (or destroy if destruction is requested and provide\nwritten certification of destruction) all documents and other tangible and intangible materials representing the other’s Confidential Information\nand all copies thereof.\n5. The parties recognize and agree that nothing contained in this Agreement shall be construed as granting any property rights, by license or\notherwise, to any Confidential Information of the other party disclosed pursuant to this Agreement, or to any invention or any trade secret, patent,\ncopyright, trademark, or other intellectual property right associated with such Confidential Information. Neither party shall use, copy, display,\npost, or prepare derivative works of or improvements to the Confidential Information, other than for the Purpose, or make, have made, use or sell\nfor any purpose any product, service or other item incorporating or derived from any Confidential Information of the other party.\n1\n6. Confidential Information shall not be reproduced in any form except as reasonably required for the Purpose. Any reproduction of any\nConfidential Information of the other party by either party shall remain the property of the disclosing party and shall contain any and all\nconfidential or proprietary notices or legends which appear on the original, unless otherwise authorized in writing by the other party.\n7. This Agreement shall continue in full force and effect for so long as the parties continue to exchange Confidential Information. This\nAgreement may be terminated by either party at any time upon thirty (30) days written notice to the other party, however its terms shall survive\nthe termination of this Agreement for a period of five (5) years from the date of such termination.\n8. Each party recognizes that the disclosure of the other party’s Confidential Information may give rise to irreparable injury and acknowledges\nthat remedies other than injunctive relief will not be adequate. Accordingly, each party shall have the right to seek equitable and injunctive relief\n(without the need to post a bond or other security) to prevent the unauthorized disclosure of its Confidential Information, as well as such\ndamages or other relief as may be available in law or equity for any unauthorized use or disclosure of such information.\n9. Nothing contained in this Agreement shall entitle a party to rely on the other or its advisors, or require a party to enter into any agreement or\ntransaction, or preclude a party from entering into any agreement or transaction or pursuing its lines of business, or obligate either party to the\nother party in any other way, except as expressly provided in this Agreement or in any other written agreement existing or entered into by the\nparties hereafter. Nothing contained in this Agreement shall compel either party to furnish information to the other party or to negotiate any\ntransaction.\n10. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such enforceability or invalidity shall not\nrender this Agreement unenforceable or invalid as a whole and in such event, such provision shall be changed and interpreted so as to best\naccomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.\n11. No delay or omission by a party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such\nright or power. A waiver by either party of any breach or covenant shall not be construed to be a waiver of any succeeding breach or any other\ncovenant.\n12. Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given to the party to be notified:\n(a) upon personal delivery to the party; (b) one (1) business day following deposit for delivery to the party for delivery within the United States\nwith a nationally recognized overnight courier; (c) for delivery to the party via registered or certified mail, three (3) business days after deposit\nwith the U.S. Post Office for mailing or (d) upon confirmation of facsimile transmission, at the time noted on such confirmation sheet to the\nparty. In all cases, notice shall be made to the party at the location specified on the signature page of this Agreement. Each of the parties to this\nAgreement may change the location for notice by giving notice to the other party in accordance with the notice provisions contained in this\nparagraph.\n13. This Agreement shall be governed by and construed in accordance with the internal laws of the State of California, U.S.A. without reference\nto conflict of law principles. Any disputes under this Agreement may be brought in the state courts or the Federal courts located in Alameda\nCounty, and the parties hereby consent to the exclusive subject matter personal jurisdiction and venue of these courts. This Agreement may not\nbe amended except in writing signed by both parties hereto.\n14. Neither party shall knowingly communicate any information to the other in violation of the rights of any third party.\n15. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party.\nNotwithstanding the foregoing, this Agreement shall be binding on each party’s lawful successors and assigns.\n16. The prevailing party, or if there is not one, the substantially prevailing party, in any action to enforce this Agreement shall be entitled to\nattorneys fees and costs in addition to any other available relief.\n17. No amendment to, or change, waiver or discharge of, any provision of this Agreement shall be valid unless in writing and signed by an\nauthorized representative of each party. This Agreement represents the entire agreement between the parties with respect to its subject matter and\nthere are no other representations, understandings or agreements between the parties relative to such subject matter,\n2\nexcept for any confidentiality or non-disclosure obligations that may be set forth in other written agreements signed by all parties thereto (“other\nNDAs”). In the event of an apparent conflict between or among provisions of this Agreement and provisions of other NDAs between the parties,\nsuch provisions shall be read in a mutually consistent way, or if no such reading is reasonably possible, the provisions most protective of\nConfidential Information shall take precedence over conflicting or less protective provisions. This Agreement may be executed in any number of\ncounterparts, each of which shall be deemed an original, but all of which taken together shall constitute one single agreement between the parties.\n18. The parties represent and acknowledge that Confidential Information may include material nonpublic information of the other party. The\nparties agree as recipients of such material nonpublic information, and agree to require any authorized recipient of such material nonpublic\ninformation, to not trade directly or indirectly in the other party’s securities while in possession of such material nonpublic information of the\nother party.\nIN WITNESS WHEREOF, the parties hereto have caused this Mutual Non-Disclosure Agreement to be executed as of the Effective Date.\nAGREED TO:\nAGREED TO:\nADEPT TECHNOLOGY, INC.\nOMRON ELECTRONICS LLC\n/s/ Rob Cain\n/s/ Nigel Blakeway\nSIGNATURE\nSIGNATURE\nRob Cain\nNigel Blakeway\nPRINT NAME\nPRINT NAME\nPresident and Chief Executive Officer\nChief Executive Officer\nTITLE\nTITLE\nAddress: 5960 Inglewood Drive\nAddress: 2895 Greenspoint Parkway\nPleasanton, CA 94588\nHoffman Estates, Illinois 60169\nPhone:\n925.245.3400\nPhone:\nFax:\n925.243.3510\nFax:\n3
5296aac4de4f27fd5ab634b567d8d73f.pdf	effective_date jurisdiction party term	EX-10.32 7 ex10_32.htm\nNutraGenecs I TechniChef NutraGenecs\nConsulting Agreement & Non-Disclosure\nAgreement made this day of March 1, 2018 , by and between:\nNutraGenecs / Donna P. Henry\nPO Box 588 or 579 FM 2840, M eridian, Tx. 76665\nph: 903-378-2423\n(Consultant)\nRocky Mountain High Brands, Inc. / contact: Michael Welch\n9101 LBJ Freeway, Suite 200, Dallas, TX 75243\nph: 972-833-1588\n(Client)\nConsultant is an independent contractor willing to provide certain skills and abilities that the Client has needs. In consideration\nof the mutual terms, conditions set forth, Client and Consultant agree as follows:\n1. Independent Contractor: The Client hereby employs the Consultant as an independent contractor, and the Consultant\nhereby accepts contract. The Consultant shall perform the Services on a "best efforts" basis. The Consultant may engage\nin other business activities. Consultant is an independent contractor and nothing contained in this Agreement shall be\ndeemed or interpreted to constitute the Consultant as a partner, agent or an employee of the Client, nor shall either party\nhave any authority to bind the other.\n2. Effective Date: The term of this Agreement shall commence as above. After the first thirty (30) days of the term,either party\nmay, without cause, terminate this Agreement by giving twenty (20) business days written notice to the other, and\nConsultant shall return funds representing the unused portion of any prepayment within thirty (30) working days.\n3. Compensation: Client shall pay to Consultant in accordance with the terms set forth in Schedule " B or Quote " attached.\nConsultant will render invoice for services rendered net fifteen (15) business days. I f Client shall fail to pay for the services\nwithin the above time, Consultant shall be entitled to a service charge of 2 % per month on the unpaid balance. In the event\nthe unpaid account is turned over for collection, Client shall be responsible for all Consultants' costs, services charges, and\nexpenses (including reasonable attorneys' fees) associated with the collection, in addition to the unpaid balance.\n4. Services: Consultant agrees to perform the services listed in Schedule ''A" ("Services") below, Consultant shall devote\nsuch time, attention and energies as required to complete project.\n5. Other Terms and Conditions: Consultant shall notify the Client promptly of any expected delay in performance of services.\nHowever, Consultant shall not be liable for delays in performance beyond its reasonable control. Consultant agrees to\nperform the service with professional care, skill, and diligence in accordance with the standards and quality usually and\ncustomarily provided by Consultant to its client's.\n6. This Agreement between the parties and is intended as a complete and exclusive statement between the parties. No\nchange, modification, or transfer of this Agreement shall be valid unless the change is communicated in writing and\nsigned by both parties.\nINTENDING TO BE LEGALLY BOUND, the parties hereto have caused this Agreement to be executed as of the date first above written.\nPO Box 588 Meridian, Tx. 76665 I PHONE: 903-378 -2423 I donna@nutragenecs.com\nNutraGenecs I TechniChef\nPayment\n(a) The Consultant will submit to the Client an invoice for Services performed and expenses incurred. The standard invoice\nterms shall be net upon receipt - 15 days after issuance, unless other arrangements have been made. Invoices will be\nsent through PayPal by email. Invoices can be paid via PayPal or by company check mailed. Invoices unpaid after 8\nweeks from issuance shall accrue interest at the rate of 2% per month, from the date of issuance to the date payment is\nreceived\n(b) If Client Identifies any discrepancy, or dispute on a Consultant Invoice, the Client shall promptly notify Consultant of\nany disputed amounts and the parties will use their best efforts to resolve the dispute as promptly as possible\n(c) Consultant shall be responsible for payment of all taxes (federal, state, and local) that may be due upon its compensation\n(d) Client shall deposit with Consultant a retainer to secure payment for Services rendered by Consultant. In the event that\nany amount due to Consultant is not paid when due, then Consultant may deduct any such amount from the retainer and\nrequire that the retainer be restored before any further work for Client is done. Client may apply the retainer or portion\nthereof against amounts owed under the final invoice issued by Consultant, and the balance of the retainer, if any, shall\nbe returned to the Client. In the event that all amounts due to Consultant are paid then the full amount of the deposit shall\nbe refunded to the Client upon the expiration or termination of this Agreement\n(e) Consultant shall not be required to perform any work for Client when any amount due by the Client shall be in default.\nThis agreement for consulting services is approved by the signing of the client and consultant:\nNutraGenecs / TechniChef\nsignature: /s/ Donna P. Henry\nDate: 2.27.2018\n(Consultant)\nRocky Mountain High Brands, Inc. / by Michael Welch, President & CEO\nsignature: /s/ Michael Welch\nDate: 3.1.2018\n(Client)\nPO Box 588 Meridian, Tx. 76665 PHONE: 903-378-2423 donna@nutragenecs.com\n2\nNutraGenecs I TechniChef\nCONSULTING AGREEMENT\nSchedule " A" : Agreement and Non-Disclosure\nThis agreement for consulting services is between NutraGenecs (Consultant), RHHB (Client)\nServices Client hereby agrees to utilize the Consultant to perform the following consulting services:\nl. Provide technical formulation expertise In the development or restructuring formulas to achieve particular\nattributes as requested. Information provided upon completion of project Includes: products / ingredients /\nprocesses Including formul ation adjustments and/ or processes using Industrial Ingredients containing\nvendor,Ingredient, processing information if applicable, other development as requested. RHHB retains all\nrights to all information developed/adjusted through this agreement.\n2. See reduced rates on Quote attached, or normal rates on page 3 of document. Retainer to begin project is $1000\nand wilI be deducted from the final invoice. The invoice will be emailed bl-weekly through PayPal. Should a\ncredit be Involved it will be paid with the final Invoice. In this working partnership we will be working on\nproducts over a longer term, so the lab rates will be reduced to the rates per hour in the Quote provided.\nNutraGenecs will be responsible for the taxes on the Income.\nNon-Disclosure Agreement\n(Transfer Of Proprietary Information, Non-Disclosure And Confidentiality Agreement )\nIn its sole discretion, the Disclosing Party will provide to the Receiving Party certain confidential and proprietary information for the purpose of\nallowing the Receiving Party to evaluate its interest in accordance with the following terms and conditions: The parties agree as follows:\n1.\n"Confidential Information" shall mean all strategic & development plans, financial condition, business plans, co-developer\nidentities, data, business records, customer lists, project records,market reports, employee lists and business manuals,\npolicies and procedures, information processes,technologies or other Information disclosed by Disclosing Party or which the\nReceiving Party may have provided or has generated in accordance with this Agreement, and is not generally available to\nthe public.\n2 Nondisclosure Obligations. Receiving Party promises and agrees to receive and hold the Confidential Information in\nconfidence.\nA. To protect and safeguard the Confidential Information against unauthorized use, publication or disclosure; not to\nuse any of the Confidential Information except for the Business Purposes.\nB. Not to, directly or indirectly, in any way, reveal. report, publish, disclose. transfer or otherwise use any of\nthe Confidential Information except as authorized by Disclosing Party in accordance with this agreement.\n3. Restrictions. The restrictions herein provided shall not apply with respect to "Confidential Information" which:\nA. Is known by the Receiving Party at the time of receipt; or becomes a part of the public domain without breach of\nthis Agreement, or is legitimately obtained by the Receiving Party without a commitment of confidentiality from a\nthird party. Or is disclosed pursuant to judicial action or government regulations.\n11. Remedies . Receiving Party understands that any disclosure or misappropriation of any of the Confidential Information in\nviolation of this Agreement may cause Disclosing Party irreparable harm. This Agreement shall be governed with the laws\nof the State of Texas.\n5. Term and Termination. This Agreement shall commence on the signed document date. Receiving Party's right to use the\nConfidential Information for Business Purposes shall continue in effect for the length of the project until Disclosing Party\nprovides a written notice of termination of such right, whichever is first. This agreement may not be modified except In writing\nsigned by each of the parties to the agreement.\nThis Non Disclosure supplements but does not replace the NDA agreement previously signed by the parties.\nPO Box 588 I Meridian, Tx.. 76665 I PHONE: 903-378 -2423 I donna@nutragenecs.com I\n3\nCONSULTING AGREEMENT\nSchedule " B": Consultant Compensation\nThe Consultant will provide the services to the Client as detailed in Schedule "A".\nRetainer amount $1000 prepayment will be applied to final invoice amount or total (see paragraph under description of services)\nExpense amount $ _actual Incurred expenses/ or company will pre-arrange travel, accommodations, etc. If applicable.\nThe Client hires Consultant to do the work required and agrees to the following payment schedule:\nThe Consultant will perform the work for the Client, at the rate of _schedule B or Quote_ and for a total amount not to exceed the\ncompany-defined amount. The Consultant agrees not to surpass the maximum stated amount, except as provided that the Client\nand the Consultant mutually agree to modify the stated amount.\nClient Changes:\nExpenses\nIn the even t that Client changes, alters, or modifies any materials, documents or other work product prepared by Consultant ,\nConsultant shall not be responsible or liable for the consequences on the part of the Client\nThe Client shall reimburse Consultant for all reasonable and necessary expenses, incurred in connection with the performance\nof the Services, such as travel, lodging, food or other expenses Incurred. All local travel (car) expenses will be reimbursed to\nConsultant at the rate of $0.50 per mile or current FDA rate. All travel time Incurred by Consultant will be reimbursed at of the\nhourly rate of $40 All other reimbursable expenses In excess of $_ $200_ will be subject to pre- approval, in writing via FAX or\nother method of transmission, by Client.\nThe following are the applicable Consultant rates and prices,unless an a greed upon rate for the entire project has be prearranged.\nACTIVITY\nRATE\nFEE\nInitial Consulting (phone or local visit/ or lunch meeting)\nNo Charge\nMileage if applicable\nOn-site Consulting (visits, inspections, audits, process scale-up) (8 hours\nor less)\nper day(plus travel & miles)\n$600\nQuality System / Audit Development (varies per situation complexity)\nnegotiable\nNegotiable\nWriting & research (development, formulations, specifications, msds)\nper hour\n$80\nProduct Development (laboratory, benchtop, equipment, analysis, etc.) per hour\n$85\nlabeling/ Ingredient Dec. (USDA/FDA/Retail/Industrial/FoodService)\nper label\n$100-$300\nFood Law/ Nutritional Label (raw material system addition per ingred.\nextra)\nper label (10 ing & less)\n$300\nFood Law/ Export documentation (ingredient statements USDA or FDA,\nsanitary, per shipment natural, conformance.)\nper shipment\nProduct dependent\nGeneral Computer usage/ phone time (samples, etc.)\nper hour\n$60\nSensory Analysis (consumer varied site testing,120 people, analysis &\nreports)\nper daily testing event\n$10,000\nOther Sensory dependent upon type of testing and location.\nOut of pocket expenses (Supplies and outside Analytical Services)\nactual\nActual\nPO Box 588 I Meridian, Tx.. 76665 I PHONE: 903-378 -2423 I donna@nutragenecs.com I\n4	EX-10.32 7 ex10_32.htm NutraGenecs I TechniChef NutraGenecs Consulting Agreement & Non-Disclosure\nAgreement made this day of March 1, 2018 , by and between:\n \nNutraGenecs | Donna P. Henry PO Box 588 or 579 FM 2840, Meridian Tx 76665 ph: 903-378-2423 (Consultant) Rocky Mountain High Brands, Inc. | contact: Michael Welch 9101 LBJ Freeway, Suite 200, Dallas, TX 75243 ph: 972-833-1588 (Client) Consultant is an independent contractor willing to provide certain skills and abilities that the Client has needs. In consideration of the mutual terms, conditions set forth, Client and Consultant agree as follows: 1. Independent Contractor: The Client hereby employs the Consultant as an independent contractor, and the Consultant\nhereby accepts contract. The Consultant shall perform the Services on a "best efforts" basis. The Consultant may engage\nin other business activities. Consultant is an independent contractor and nothing contained in this Agreement shall be\ndeemed or interpreted to constitute the Consultant as a partner, agent or an employee of the Client, nor shall either party\nhave any authority to bind the other.\nEffective Date: The term of this Agreement shall commence as above. After the first thirty (30) days of the term,either party\nmay, without cause, terminate this Agreement by giving twenty (20) business days written notice to the other, and\nConsultant shall return funds representing the unused portion of any prepayment within thirty (30) working days.\nCompensation: Client shall pay to Consultant in accordance with the terms set forth in Schedule " B or Quote " attached.\nConsultant will render invoice for services rendered net fifteen (15) business days. | f Client shall fail to pay for the services\nwithin the above time, Consultant shall be entitled to a service charge of 2 % per month on the unpaid balance. In the event\nthe unpaid account is turned over for collection, Client shall be responsible for all Consultants' costs, services charges, and\nexpenses (including reasonable attorneys' fees) associated with the collection, in addition to the unpaid balance.\nServices: Consultant agrees to perform the services listed in Schedule "A" ("Services") below, Consultant shall devote\nsuch time, attention and energies as required to complete project.\nOther Terms and Conditions: Consultant shall notify the Client promptly of any expected delay in performance of services.\nHowever, Consultant shall not be liable for delays in performance beyond its reasonable control. Consultant agrees to\nperform the service with professional care, skill, and diligence in accordance with the standards and quality usually and\ncustomarily provided by Consultant to its client's.\nThis Agreement between the parties and is intended as a complete and exclusive statement between the parties. No\nchange, modification, or transfer of this Agreement shall be valid unless the change is communicated in writing and\nsigned by both parties.\nINTENDING TO BE LEGALLY BOUND, the parties hereto have caused this Agreement to be executed as of the date first above written.\fPO Box 588 Meridian, Tx. 76665 | PHONE: 903-378-2423 | donna@nutragenecs.com\nNutraGenecs I TechniChef\nPayment\n(@) The Consultant will submit to the Client an invoice for Services performed and expenses incurred. The standard invoice\nterms shall be net upon receipt - 15 days after issuance, unless other arrangements have been made. Invoices will be\nsent through PayPal by email. Invoices can be paid via PayPal or by company check mailed. Invoices unpaid after 8\nweeks from issuance shall accrue interest at the rate of 2% per month, from the date of issuance to the date payment is\nreceived\nIf Client Identifies any discrepancy, or dispute on a Consultant Invoice, the Client shall promptly notify Consultant of\n(b\nany disputed amounts and the parties will use their best efforts to resolve the dispute as promptly as possible\n~—~\n(c) Consultant shall be responsible for payment of all taxes (federal, state, and local) that may be due upon its compensation\n~—\nClient shall deposit with Consultant a retainer to secure payment for Services rendered by Consultant. In the event that\nany amount due to Consultant is not paid when due, then Consultant may deduct any such amount from the retainer and\nrequire that the retainer be restored before any further work for Client is done. Client may apply the retainer or portion\nthereof against amounts owed under the final invoice issued by Consultant, and the balance of the retainer, if any, shall\nbe returned to the Client. In the event that all amounts due to Consultant are paid then the full amount of the deposit shalll\nbe refunded to the Client upon the expiration or termination of this Agreement\nd\n~\n(e) Consultant shall not be required to perform any work for Client when any amount due by the Client shall be in default.\nThis agreement for consulting services is approved by the signing of the client and consultant:\nNutraGenecs | TechniChef\nsignature: /s/ Donna P. Henry\nDate: 2.27.2018\n(Consultant)\nRocky Mountain High Brands, Inc. | by Michael Welch, President & CEO\nsignature: /s/ Michael Welch\nDate: 3.1.2018\n(Client)\nPO Box 588 Meridian, Tx. 76665 PHONE: 903-378-2423 donna@nutragenecs.com\n2\nNutraGenecs | TechniChef CONSULTING AGREEMENT\nSchedule " A" : Agreement and Non-Disclosure\nThis agreement for consulting services is between NutraGenecs (Consultant), RHHB (Client) Services Client hereby agrees to utilize the Consultant to perform the following consulting services: L\nProvide technical formulation expertise In the development or restructuring formulas to achieve particular\nattributes as requested. Information provided upon completion of project Includes: products / ingredients /\nprocesses Including formulation adjustments and/ or processes using Industrial Ingredients containing\nvendoringredient, processing information if apfillcable, other development as requested. RHHB retains all\nrights to all information developed/adjusted through this agreement.\nSee reduced rates on Quote attached, or normal rates on Page 3 of document. Retainer to begin project is $1000\nand will be deducted from the final invoice. The invoice will be emailed bl-weekly through PayPal. Should a\ncredit be Involved it will be paid with the final Invoice. In this working partnership we will be working on\neroducts over a longer term, so the lab rates will be reduced to the rates per hour in the Quote provided.\nutraGenecs will be responsible for the taxes on the Income.\nNon-Disclosure Agreement\n(Transfer Of Proprietary Information, Non-Disclosure And Confidentiality Agreement ) In its sole discretion, the Disclosing Party will provide to the Receiving Party certain confidential and proprietary information for the purpose of allowing the Receiving Party to evaluate its interest in accordance with the following terms and conditions: The parties agree as follows: 1. "Confidential Information” shall mean all strategic & development plans, financial condition, business plans, co-developer\nidentities, data, business records, customer lists, project records,market reports, employee lists and business manuals,\npolicies and procedures, information processes,technologies or other Information disclosed by Disclosing Party or which the\nReceiving Party may have provided or has generated in accordance with this Agreement, and is not generally available to\nthe public.\nNondisclosure Obligations. Receiving Party promises and agrees to receive and hold the Confidential Information in\nconfidence.\nA. To protect and safeguard the Confidential Information against unauthorized use, publication or disclosure; not to\nuse any of the Confidential Information except for the Business Purposes.\nB. Not to, directly or indirectly, in any way, reveal. report, publish, disclose. transfer or otherwise use any of\nthe Confidential Information except as authorized by Disclosing Party in accordance with this agreement.\nRestrictions. The restrictions herein provided shall not apply with respect to "Confidential Information” which:\nA. Is known by the Receiving Party at the time of receipt; or becomes a part of the public domain without breach of\nthis Agreement, or is legitimately obtained by the Receiving Party without a commitment of confidentiality from a\nthird party. Or is disclosed pursuant to judicial action or government regulations.\n11. Remedies . Receiving Party understands that any disclosure or misappropriation of any of the Confidential Information in violation of this Agreement may cause Disclosing Party irreparable harm. This Agreement shall be governed with the laws\nof the State of Texas.\nTerm and Termination. This Agreement shall commence on the signed document date. Receiving Party's right to use the\nConfidential Information for Business Purposes shall continue in effect for the length of the project until Disclosing Party\nprovides a written notice of termination of such right, whichever is first. This agreement may not be modified except In writing\nsigned by each of the parties to the agreement.\nThis Non Disclosure supplements but does not replace the NDA agreement previously signed by the parties.\nPO Box 588 | Meridian, Tx.. 76665 I PHONE: 903-378-2423 | donna@nutragenecs.com | 3\nCONSULTING AGREEMENT Schedule " B": Consultant Compensation The Consultant will provide the services to the Client as detailed in Schedule "A". Retainer amount $1000 prepayment will be applied to final invoice amount or total (see paragraph under description of services) Expense amount $ _actual Incurred expenses/ or company will pre-arrange travel, accommodatiors, etc. If applicable. The Client hires Consultant to do the work required and agrees to the following payment schedule: The Consultant will perform the work for the Client, at the rate of _schedule B or Quote_ and for a total amount not to exceed the company-defined amount. The Consultant agrees not to surpass the maximum stated amount, except as provided that the Client and the Consultant mutually agree to modify the stated amount.\nClient Changes:\nExpenses\nIn the even t that Client changes, alters, or modifies any materials, documents or other work product prepared by Consultant , Consultant shall not be responsible or liable for the consequences on the part of the Client The Client shall reimburse Consultant for all reasonable and necessary expenses, incurred in connection with the performance of the Services, such as travel, lodging, food or other expenses Incurred. All local travel (car) expenses will be reimbursed to Consultant at the rate of $0.9 per mile or current FDA rate. All travel time Incurred by Consultant will be reimbursed at of the hourly rate of $40 All other reimbursable expenses In excess of $_ $200_ will be subject to pre- approval, in writing via FAX or other method of transmission, by Client.\nThe following are the applicable Consultant rates and prices,unless an a greed upon rate for the entire project has be prearranged. ACTIVITY\nInitial Consulting (phone or local visit/ or lunch meeting)\nOn-site Consulting (visits, inspections, audits, process scale-up) (8 hours\nor less)\nQuality System / Audit Development (varies per situation complexity)\nWriting & research (development, formulations, specifications, msds)\nProduct Development (laboratory, benchtop, equipment, analysis, etc.)\nlabeling/ Ingredient Dec. (USDA/FDA/Retail/Industrial/FoodService)\nFood Law/ Nutritional Label (raw material system addition per ingred.\nextra)\nFood Law/ Export documentation (ingredient statements USDA or FDA,\nsanitary, per shipment natural, conformance.)\nGeneral Computer usage/ phone time (samples, etc.)\nSensory Analysis (consumer varied site testing,120 people, analysis &\nreports)\nOther Sensory dependent upon type of testing and location.\nOut of pocket expenses (Supplies and outside Analytical Services)\nPO Box 588 | Meridian, Tx.. 76665 I PHONE: 903-378-2423 | donna@nutragenecs.com | 4\nRATE\nNo Charge\nper day(plus travel & miles)\nnegotiable\nper hour\nper hour\nper label\nper label (10 ing & less)\nper shipment\nper hour\nper daily testing event\nactual\nFEE\nMileage if applicable\n$600\n \nNegotiable\n$80\n$85\n$100-$300\n$300\nProduct dependent\n$60\n$10,000\nActual	EX-10.32 ex10_32.htm\nNutraGenecs I TechniChef NutraGenecs\nConsulting Agreement & Non-Disclosure\nAgreement made this day of March 1, 2018 by and between:\nNutraGenecs / Donna P. Henry\nPO Box 588 or 579 FM 2840, Meridian Tx 76665\nph: 903-378-2423\n(Consultant)\nRocky Mountain High Brands, Inc. / contact: Michael Welch\n9101 LBJ Freeway, Suite 200, Dallas, TX 75243\nph: 972-833-1588\n(Client)\nConsultant is an independent contractor willing to provide certain skills and abilities that the Client has needs. In consideration\nof the mutua terms, conditions set forth, Client and Consultant agree as follows:\n1. Independent Contractor: The Client hereby employs the Consultant as an independent contractor, and the Consultant\nhereby accepts contract. The Consultant shall perform the Services on a "best efforts" basis. The Consultant may engage\nin other business activities. Consultant is an independent contractor and nothing contained in this Agreement shall be\ndeemed or interpreted to constitute the Consultant as a partner, agent or an employee of the Client, nor shall either party\nhave any authority to bind the other.\n2. Effective Date: The term of this Agreement shall commence as above. After the first thirty (30) days of the m,either party\nmay, without cause, terminate this Agreement by giving twenty (20) business days written notice to the other, and\nConsultant shall return funds representing the unused portion of any prepayment within thirty (30) working days.\n3. Compensation: Client shall pay to Consultant in accordance with the terms set forth in Schedule B or Quote attached.\nConsultant will render invoice for services rendered net fifteen (15) business days. I f Client shall fail to pay for the services\nwithin the above time, Consultant shall be entitled to a service charge of 2 % per month on the unpaid balance. In the event\nthe unpaid account is turned over for collection, Client shall be responsible for all Consultants' costs, services charges, and\nexpenses (including reasonable attorneys' fees) associated with the collection, in addition to the unpaid balance.\n4. Services: Consultant agrees to perform the services listed in Schedule "A" ("Services") below, Consultant shall devote\nsuch time, attention and energies as required to complete project.\n5.\nOther Terms and Conditions: Consultant shall notify the Client promptly of any expected delay in performance of services.\nHowever, Consultant shall not be liable for delays in performance beyond its reasonable control. Consultant agrees to\nperform the service with professional care, skill, and diligence in accordance with the standards and quality usually and\ncustomarily provided by Consultant to its client's.\n6.\nThis Agreement between the parties and is intended as a complete and exclusive statement between the parties. No\nchange, modification, or transfer of this Agreement shal be valid unless the change is communicated in writing and\nsigned by both parties.\nINTENDING TO BE LEGALLY BOUND, the parties hereto have caused this Agreement to be executed as of the date first above written.\nPO Box 588 Meridian, Tx. 76665 I PHONE: 903-378-2423 I donna@nutragenecs.com\nNutraGenecs I TechniChef\nPayment\n(a) The Consultant will submit to the Client an invoice for Services performed and expenses incurred. The standard invoice\nterms shall be net upon receipt - 15 days after issuance, unless other arrangements have been made. Invoices will be\nsent through PayPal by email Invoices can be paid via PayPal or by company check mailed. Invoices unpaid after 8\nweeks from issuance shall accrue interest at the rate of 2% per month, from the date of issuance to the date payment\nis\nreceived\n(b) If Client Identifies any discrepancy, or dispute on a Consultant Invoice, the Client shall promptly notify Consultant of\nany disputed amounts and the parties will use their best efforts to resolve the dispute as promptly as possible\n(c) Consultant shall be responsible for payment of all taxes (federal, state, and local) that may be due upon its compensation\n(d) Client shall deposit with Consultant a retainer to secure payment for Services rendered by Consultant. In the event that\nany amount due to Consultant is not paid when due, then Consultant may deduct any such amount from the retainer and\nrequire that the retainer be restored before any further work for Client is done. Client may apply the retainer or portion\nthereof against amounts owed under the final invoice issued by Consultant, and the balance of the retainer, if any, shall\nbe returned to the Client. In the event that all amounts due to Consultant are paid then the full amount of the deposit shal\nbe refunded to the Client upon the expiration or termination of this Agreement\n(e) Consultant shall not be required to perform any work for Client when any amount due by the Client shall be in default.\nThis agreement for consulting services is approved by the signing of the client and consultant:\nNutraGenecs / TechniChef\nsignature: Is/ Donna P. Henry.\nDate: 2.27.2018\n(Consultant)\nRocky Mountain High Brands, Inc. / by Michael Welch, President & CEO\nsignature: Is/ Michael Welch\nDate: 3.1.2018\n(Client)\nPO Box 588 Meridian, Tx. 76665 PHONE: 903-378-2423 donna@nutragenecs.com\n2\nNutraGenecs TechniChef\nCONSULTING AGREEMENT\nSchedule A" Agreement and Non-Disclosure\nThis agreement for consulting services is between NutraGenecs (Consultant), RHHB (Client)\nServices Client hereby agrees to utilize the Consultant to perform the following consulting services:\n1.\nProvide technical formulation expertise In the development or restructuring formulas to achieve particular\nattributes as requested. Information provided upon completion of project Includes: products / ingredients /\nprocesses vendor,ingredient, Including processing formulation information adjustments if applicable, and or processes other development using Industrial as requested. Ingredients RHHB containing retains all\nrights to all information developedladjusted through this agreement.\n2. See reduced rates on Quote attached, or norma rates on page 3 of document. Retainer to begin project is $1000\nand will be deducted from the final invoice. The invoice will be emailed bl-weekly through PayPal. Should a\ncredit be Involved it will be paid with the final Invoice. In this working partnership we will be working on\nproducts over a longer term, so the lab rates will be reduced to the rates per hour in the Quote provided.\nNutraGenecs will be responsible for the taxes on the Income.\nNon-Disclosure Agreement\n(Transfer Of Proprietary Information, Non-Disclosure And Confidentiality Agreement\nIn its sole discretion, the Disclosing Party will provide to the Receiving Party certain confidential and proprietary information for the purpose of\nallowing the Receiving Party to evaluate its interest in accordance with the following terms and conditions: parties agree as follows:\n1. "Confidentia Information" shall mean all strategic & development plans, financial condition, business plans, co-developer\nidentities, data, business records, customer lists, project records,ma reports, employee lists and business manuals,\npolicies\nand\nprocedures,\ninformation\nprocesses,technologies\nor\nother\nInformation\ndisclosed\nby\nDisclosing\nParty\nor\nwhich\nthe\nReceiving\nParty may have provided or has generated in accordance with this Agreement, and is not generally available to\nthe public.\n2\nNondisclosure Obligations. Receiving Party promises and agrees to receive and hold the Confidential Information in\nconfidence.\nA. To protect and safeguard the Confidential Information against unauthorized use, publication or disclosure; not to\nuse any of the Confidentia Information except for the Business Purposes.\nB. Not to, directly or indirectly, in any way, reveal. report, publish, disclose. transfer or otherwise use any of\nthe Confidential Information except as authorized by Disclosing Party in accordance with this agreement.\n3.\nRestrictions. The restrictions herein provided shal not apply with respect to "Confidential Information" which:\nA. Is known by the Receiving Party at the time of receipt; or becomes a part of the public domain without breach of\nthis Agreement, or is legitimately obtained by the Receiving Party without a commitment of confidentiality from a\nthird party. Or is disclosed pursuant to judicia action or government regulations.\n11.\nRemedies\nReceiving\nParty\nunderstands\nthat\nany\ndisclosure\nor\nmisappropriation\nof\nany\nof\nthe\nConfidential\nInformation\nin\nviolation of this Agreement may cause Disclosing Party irreparable harm. This Agreement shall be governed with the laws\nof the State of Texas.\n5.\nTerm and Termination This Agreement shall commence on the signed document date. Receiving Party's right to use the\nConfidential Information for Business Purposes shall continue in effect for the length of the project until Disclosing Party\nprovides a written notice of termination of such right, whichever is first. This agreement may not be modified except In writing\nsigned by each of the parties to the agreement.\nThis Non Disclosure supplements but does not replace the NDA agreement previously signed by the parties.\nPO Box 588 I Meridian, Tx.. 76665 I PHONE: 903-378-2423 I donna@nutragenecs.com\n3\nCONSULTING AGREMENT\nSchedule B": Consultant Compensation\nThe Consultant will provide the services to the Client as detailed in Schedule "A".\nRetainer amount $1000 prepayment will be applied to final invoice amount or total (see paragraph under description of services)\nExpense amount actual Incurred expenses/ or company will pre-arrange travel, accommodations, etc. If applicable.\nThe Client hires Consultant to do the work required and agrees to the following payment schedule:\nThe Consultant will perform the work for the Client, at the rate of schedule B or Quote_an for a total amount not to exceed the\ncompany-defined amount. The Consultant agrees not to surpass the maximum stated amount, except as provided that the Client\nand the Consultant mutually agree to modify the stated amount.\nClient Changes:\nExpenses\nIn the even t that Client changes, alters, or modifies any materials, documents or other work product prepared by Consultant\nConsultant shall not be responsible or liable for the consequences on the part of the Client\nThe Client shall reimburse Consultant for all reasonable and necessary expenses, incurred in connection with the performance\nof the Services, such as travel lodging, food or other expenses Incurred. All local travel (car) expenses will be reimbursed to\nConsultant at the rate of $0.50 per mile or current FDA rate. All travel time Incurred by Consultant will be reimbursed at of the\nhourly rate of $40 All other reimbursable expenses In excess of $_$200_wil wil be subject to pre- approval, in writing via FAX or\nother method of transmission, by Client.\nThe following are the applicable Consultant rates and prices,unless an a greed upon rate for the entire project has be prearranged.\nACTIVITY\nRATE\nFEE\nInitial Consulting (phone or local visit/ or lunch meeting)\nNo Charge\nMileage if applicable\nOn-site Consulting (visits, inspections, audits, process scale-up) (8 hours per day(plus travel & miles)\n$600\nor less)\nQuality System Audit Development (varies per situation complexity)\nnegotiable\nNegotiable\nWriting & research (development, formulations, specifications, msds)\nper hour\n$80\nProduct Development (laboratory, benchtop, equipment, analysis, etc.)\nper hour\n$85\nlabeling/ Ingredient Dec. (USDA/FDA/Retail/Industrial/FoodService)\nper label\n$100-$300\nFood Law/ Nutritional Label (raw material system addition per ingred.\nper label (10 ing & less)\n$300\nextra)\nFood Law/ Export documentation (ingredient statements USDA or FDA,\nper shipment\nProduct dependent\nsanitary, per shipment natural, conformance.)\nGeneral Computer usage/ phone time (samples, etc.)\nper hour\n$60\nSensory Analysis (consumer varied site testing, 120 people, analysis &\nper daily testing event\n$10,000\nreports)\nOther Sensory dependent upon type of testing and location.\nOut of pocket expenses (Supplies and outside Analytical Services)\nactual\nActual\nPO Box 588 Meridian, Tx.. 76665 I PHONE: 903-378-2423 donna@nutragenecs.com\n4	EX-10.32 7 ex10_32.htm\nNutraGenecs I TechniChef NutraGenecs\nConsulting Agreement & Non-Disclosure\nAgreement made this day of March 1, 2018 , by and between:\nNutraGenecs / Donna P. Henry\nPO Box 588 or 579 FM 2840, M eridian, Tx. 76665\nph: 903-378-2423\n(Consultant)\nRocky Mountain High Brands, Inc. / contact: Michael Welch\n9101 LBJ Freeway, Suite 200, Dallas, TX 75243\nph: 972-833-1588\n(Client)\nConsultant is an independent contractor willing to provide certain skills and abilities that the Client has needs. In consideration\nof the mutual terms, conditions set forth, Client and Consultant agree as follows:\n1. Independent Contractor: The Client hereby employs the Consultant as an independent contractor, and the Consultant\nhereby accepts contract. The Consultant shall perform the Services on a "best efforts" basis. The Consultant may engage\nin other business activities. Consultant is an independent contractor and nothing contained in this Agreement shall be\ndeemed or interpreted to constitute the Consultant as a partner, agent or an employee of the Client, nor shall either party\nhave any authority to bind the other.\n2. Effective Date: The term of this Agreement shall commence as above. After the first thirty (30) days of the term,either party\nmay, without cause, terminate this Agreement by giving twenty (20) business days written notice to the other, and\nConsultant shall return funds representing the unused portion of any prepayment within thirty (30) working days.\n3. Compensation: Client shall pay to Consultant in accordance with the terms set forth in Schedule " B or Quote " attached.\nConsultant will render invoice for services rendered net fifteen (15) business days. I f Client shall fail to pay for the services\nwithin the above time, Consultant shall be entitled to a service charge of 2 % per month on the unpaid balance. In the event\nthe unpaid account is turned over for collection, Client shall be responsible for all Consultants' costs, services charges, and\nexpenses (including reasonable attorneys' fees) associated with the collection, in addition to the unpaid balance.\n4. Services: Consultant agrees to perform the services listed in Schedule ''A" ("Services") below, Consultant shall devote\nsuch time, attention and energies as required to complete project.\n5. Other Terms and Conditions: Consultant shall notify the Client promptly of any expected delay in performance of services.\nHowever, Consultant shall not be liable for delays in performance beyond its reasonable control. Consultant agrees to\nperform the service with professional care, skill, and diligence in accordance with the standards and quality usually and\ncustomarily provided by Consultant to its client's.\n6. This Agreement between the parties and is intended as a complete and exclusive statement between the parties. No\nchange, modification, or transfer of this Agreement shall be valid unless the change is communicated in writing and\nsigned by both parties.\nINTENDING TO BE LEGALLY BOUND, the parties hereto have caused this Agreement to be executed as of the date first above written.\nPO Box 588 Meridian, Tx. 76665 I PHONE: 903-378 -2423 I donna@nutragenecs.com\nNutraGenecs I TechniChef\nPayment\n(a) The Consultant will submit to the Client an invoice for Services performed and expenses incurred. The standard invoice\nterms shall be net upon receipt - 15 days after issuance, unless other arrangements have been made. Invoices will be\nsent through PayPal by email. Invoices can be paid via PayPal or by company check mailed. Invoices unpaid after 8\nweeks from issuance shall accrue interest at the rate of 2% per month, from the date of issuance to the date payment is\nreceived\n(b) If Client Identifies any discrepancy, or dispute on a Consultant Invoice, the Client shall promptly notify Consultant of\nany disputed amounts and the parties will use their best efforts to resolve the dispute as promptly as possible\n(c) Consultant shall be responsible for payment of all taxes (federal, state, and local) that may be due upon its compensation\n(d) Client shall deposit with Consultant a retainer to secure payment for Services rendered by Consultant. In the event that\nany amount due to Consultant is not paid when due, then Consultant may deduct any such amount from the retainer and\nrequire that the retainer be restored before any further work for Client is done. Client may apply the retainer or portion\nthereof against amounts owed under the final invoice issued by Consultant, and the balance of the retainer, if any, shall\nbe returned to the Client. In the event that all amounts due to Consultant are paid then the full amount of the deposit shall\nbe refunded to the Client upon the expiration or termination of this Agreement\n(e) Consultant shall not be required to perform any work for Client when any amount due by the Client shall be in default.\nThis agreement for consulting services is approved by the signing of the client and consultant:\nNutraGenecs / TechniChef\nsignature: /s/ Donna P. Henry\nDate: 2.27.2018\n(Consultant)\nRocky Mountain High Brands, Inc. / by Michael Welch, President & CEO\nsignature: /s/ Michael Welch\nDate: 3.1.2018\n(Client)\nPO Box 588 Meridian, Tx. 76665 PHONE: 903-378-2423 donna@nutragenecs.com\n2\nNutraGenecs I TechniChef\nCONSULTING AGREEMENT\nSchedule " A" : Agreement and Non-Disclosure\nThis agreement for consulting services is between NutraGenecs (Consultant), RHHB (Client)\nServices Client hereby agrees to utilize the Consultant to perform the following consulting services:\nl. Provide technical formulation expertise In the development or restructuring formulas to achieve particular\nattributes as requested. Information provided upon completion of project Includes: products / ingredients /\nprocesses Including formul ation adjustments and/ or processes using Industrial Ingredients containing\nvendor,Ingredient, processing information if applicable, other development as requested. RHHB retains all\nrights to all information developed/adjusted through this agreement.\n2. See reduced rates on Quote attached, or normal rates on page 3 of document. Retainer to begin project is $1000\nand wilI be deducted from the final invoice. The invoice will be emailed bl-weekly through PayPal. Should a\ncredit be Involved it will be paid with the final Invoice. In this working partnership we will be working on\nproducts over a longer term, so the lab rates will be reduced to the rates per hour in the Quote provided.\nNutraGenecs will be responsible for the taxes on the Income.\nNon-Disclosure Agreement\n(Transfer Of Proprietary Information, Non-Disclosure And Confidentiality Agreement )\nIn its sole discretion, the Disclosing Party will provide to the Receiving Party certain confidential and proprietary information for the purpose of\nallowing the Receiving Party to evaluate its interest in accordance with the following terms and conditions: The parties agree as follows:\n1.\n"Confidential Information" shall mean all strategic & development plans, financial condition, business plans, co-developer\nidentities, data, business records, customer lists, project records,market reports, employee lists and business manuals,\npolicies and procedures, information processes,technologies or other Information disclosed by Disclosing Party or which the\nReceiving Party may have provided or has generated in accordance with this Agreement, and is not generally available to\nthe public.\n2 Nondisclosure Obligations. Receiving Party promises and agrees to receive and hold the Confidential Information in\nconfidence.\nA. To protect and safeguard the Confidential Information against unauthorized use, publication or disclosure; not to\nuse any of the Confidential Information except for the Business Purposes.\nB. Not to, directly or indirectly, in any way, reveal. report, publish, disclose. transfer or otherwise use any of\nthe Confidential Information except as authorized by Disclosing Party in accordance with this agreement.\n3. Restrictions. The restrictions herein provided shall not apply with respect to "Confidential Information" which:\nA. Is known by the Receiving Party at the time of receipt; or becomes a part of the public domain without breach of\nthis Agreement, or is legitimately obtained by the Receiving Party without a commitment of confidentiality from a\nthird party. Or is disclosed pursuant to judicial action or government regulations.\n11. Remedies . Receiving Party understands that any disclosure or misappropriation of any of the Confidential Information in\nviolation of this Agreement may cause Disclosing Party irreparable harm. This Agreement shall be governed with the laws\nof the State of Texas.\n5. Term and Termination. This Agreement shall commence on the signed document date. Receiving Party's right to use the\nConfidential Information for Business Purposes shall continue in effect for the length of the project until Disclosing Party\nprovides a written notice of termination of such right, whichever is first. This agreement may not be modified except In writing\nsigned by each of the parties to the agreement.\nThis Non Disclosure supplements but does not replace the NDA agreement previously signed by the parties.\nPO Box 588 I Meridian, Tx.. 76665 I PHONE: 903-378 -2423 I donna@nutragenecs.com I\n3\nCONSULTING AGREEMENT\nSchedule " B": Consultant Compensation\nThe Consultant will provide the services to the Client as detailed in Schedule "A".\nRetainer amount $1000 prepayment will be applied to final invoice amount or total (see paragraph under description of services)\nExpense amount $ _actual Incurred expenses/ or company will pre-arrange travel, accommodations, etc. If applicable.\nThe Client hires Consultant to do the work required and agrees to the following payment schedule:\nThe Consultant will perform the work for the Client, at the rate of _schedule B or Quote_ and for a total amount not to exceed the\ncompany-defined amount. The Consultant agrees not to surpass the maximum stated amount, except as provided that the Client\nand the Consultant mutually agree to modify the stated amount.\nClient Changes:\nExpenses\nIn the even t that Client changes, alters, or modifies any materials, documents or other work product prepared by Consultant ,\nConsultant shall not be responsible or liable for the consequences on the part of the Client\nThe Client shall reimburse Consultant for all reasonable and necessary expenses, incurred in connection with the performance\nof the Services, such as travel, lodging, food or other expenses Incurred. All local travel (car) expenses will be reimbursed to\nConsultant at the rate of $0.50 per mile or current FDA rate. All travel time Incurred by Consultant will be reimbursed at of the\nhourly rate of $40 All other reimbursable expenses In excess of $_ $200_ will be subject to pre- approval, in writing via FAX or\nother method of transmission, by Client.\nThe following are the applicable Consultant rates and prices,unless an a greed upon rate for the entire project has be prearranged.\nACTIVITY\nRATE\nFEE\nInitial Consulting (phone or local visit/ or lunch meeting)\nNo Charge\nMileage if applicable\nOn-site Consulting (visits, inspections, audits, process scale-up) (8 hours\nor less)\nper day(plus travel & miles)\n$600\nQuality System / Audit Development (varies per situation complexity)\nnegotiable\nNegotiable\nWriting & research (development, formulations, specifications, msds)\nper hour\n$80\nProduct Development (laboratory, benchtop, equipment, analysis, etc.) per hour\n$85\nlabeling/ Ingredient Dec. (USDA/FDA/Retail/Industrial/FoodService)\nper label\n$100-$300\nFood Law/ Nutritional Label (raw material system addition per ingred.\nextra)\nper label (10 ing & less)\n$300\nFood Law/ Export documentation (ingredient statements USDA or FDA,\nsanitary, per shipment natural, conformance.)\nper shipment\nProduct dependent\nGeneral Computer usage/ phone time (samples, etc.)\nper hour\n$60\nSensory Analysis (consumer varied site testing,120 people, analysis &\nreports)\nper daily testing event\n$10,000\nOther Sensory dependent upon type of testing and location.\nOut of pocket expenses (Supplies and outside Analytical Services)\nactual\nActual\nPO Box 588 I Meridian, Tx.. 76665 I PHONE: 903-378 -2423 I donna@nutragenecs.com I\n4
52d3c9b09ffbc43fc821425077524836.pdf	effective_date jurisdiction party term	Exhibit A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this “Agreement”) is made as of this day of\n, 2017 by and between resTORbio, Inc., a\nDelaware corporation (hereinafter referred to collectively with its Affiliates as the “Company”), and Chen Schor (the “Employee”).\nThe Company desires to employ the Employee to provide services to the Company. In consideration of the employment or the continued\nemployment of the Employee by the Company, the Company and the Employee agree as follows:\n1. Condition of Employment.\nThe Employee acknowledges that Employee’s employment and/or the continuance of that employment with the Company is\ncontingent upon Employee’s agreement to become a party to and adhere to the provisions of this Agreement. The Employee further\nacknowledges that the nature of the Company’s business is such that protection of its proprietary and confidential information and the proprietary\nand confidential information of its Affiliates is critical to the survival and success of the Company’s business.\n2. Proprietary and Confidential Information.\na. The Employee agrees that all information and know-how, whether or not in writing, of a private, secret or confidential nature\nconcerning the Company’s or any Affiliate’s business or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive\nproperty of the Company (or any person or entity designated by the Company). By way of illustration, but not limitation, Proprietary Information\nmay include discoveries, ideas, inventions, products, product improvements, product enhancements, processes, methods, techniques, formulas,\ncompositions, compounds, negotiation strategies and positions, projects, developments, plans (including business and marketing plans), research\ndata, clinical data, financial data (including sales costs, profits, pricing methods), personnel data, computer programs (including software used\npursuant to a license agreement), computer software code, computer games, customer, prospect and supplier lists, and contacts at or knowledge\nof customers or prospective customers of the Company or any Affiliate, and the names of, contact information of, and any other data concerning,\nexisting and prospective Affiliates and existing and prospective investors of such Affiliates. The Employee shall not disclose any Proprietary\nInformation to any person or entity other than employees of the Company or use the same for any purposes (other than in the performance of\nEmployee’s duties as an employee of the Company) without written approval by an officer of the Company, either during or after Employee’s\nemployment with the Company. The Employee shall use the Employee’s best efforts to prevent unauthorized publication or disclosure of any of\nthe Company’s Proprietary Information.\nb. The Employee agrees that all files, documents, letters, memoranda, reports, records, data, sketches, drawings, models, laboratory\nnotebooks, program listings, computer equipment or devices, computer programs or other written, photographic, or other tangible or intangible\nmaterial containing Proprietary Information, whether created by the Employee or others, which shall come into Employee’s custody or\npossession, shall be and are the exclusive property of the Company to be used by the Employee only in the performance of Employee’s duties for\nthe Company and shall not be copied or removed from the Company premises except in the pursuit of the business of the Company. All such\nmaterials or copies thereof and all tangible property of the Company in the custody or possession of the Employee shall be delivered to the\nCompany, upon the earlier of (i) a request by the Company or (ii) termination of Employee’s employment for any reason. After such delivery, the\nEmployee shall not retain any such materials or copies thereof or any such tangible property.\nc. The Employee agrees that Employee’s obligation not to disclose or to use information and materials of the types set forth in\nparagraphs 2(a) and 2(b) above, and Employee’s obligation to return materials and tangible property, set forth in paragraph 2(b) above, also\nextends to such types of information, materials and tangible property of Affiliates, customers of the Company or suppliers to the Company or\nother third parties who may have disclosed or entrusted the same to the Company or to the Employee in the course of the Company’s business.\n3. Scope of Disclosure Restrictions.\nNothing in this Agreement or elsewhere prohibits the Employee from reporting possible violations of state or federal law or regulation to\nany government agency, regulator, or legal authority, or making other disclosures that are protected under the whistleblower provisions of state or\nfederal law or regulation. The Employee is not required to notify the Company that the Employee has made any such reports or disclosures;\nprovided, however, that nothing herein authorizes the disclosure of information the Employee obtained through a communication that was\nsubject to the attorney-client privilege, unless disclosure of the information would otherwise be permitted by an applicable law or rule. Further,\npursuant to the Defend Trade Secrets Act: “An individual shall not be held criminally or civilly liable under any Federal or State trade secret law\nfor the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly,\nor to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other\ndocument filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer\nfor reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the\ncourt proceeding, if the individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except\npursuant to court order.”\n4. Non-Disparagement.\nThe Employee shall not, either during Employee’s employment with the Company or thereafter, make or encourage others to make any\nstatement or release any information that is intended to, or reasonably could be foreseen to, disparage, defame or embarrass the Company or any\nof its Affiliates or their respective employees, officers, directors, partners, members or stockholders.\n5. Miscellaneous.\na. Equitable Remedies. The Employee acknowledges that the restrictions contained in this Agreement are necessary for the protection\nof the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that\nany breach or threatened breach of this Agreement is likely to cause the Company substantial and irrevocable damage which is difficult to\nmeasure. Therefore, in the event of any such breach or threatened breach, the Employee agrees that the Company, in addition to such other\nremedies which may be available, shall have the right to obtain an injunction from a court restraining such a breach or threatened breach without\nposting bond and the right to specific performance of the provisions of this Agreement and the Employee hereby waives the adequacy of a\nremedy at law as a defense to such relief.\nb. Disclosure of this Agreement. The Employee hereby authorizes the Company to notify others, including but not limited to the\nAffiliates and any of the Employee’s future employers or prospective business associates, of the terms and existence of this Agreement and the\nEmployee’s continuing obligations to the Company hereunder.\nc. Not Employment Contract. The Employee acknowledges that this Agreement does not constitute a contract of employment, does\nnot imply that the Company will continue Employee’s employment for any period of time and does not change the at-will nature of Employee’s\nemployment.\nd. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective\nsuccessors and assigns, including any corporation with which, or into which, the Company may be merged or which may succeed to the\nCompany’s assets or business, provided, however, that the obligations of the Employee are personal and shall not be assigned by Employee. The\nEmployee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any Affiliate thereof to whose\nemploy the Employee may be transferred without the necessity that this Agreement be re-signed at the time of such transfer.\ne. Severability. In case any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, the validity, legality and\nenforceability of the remaining provisions shall in no way be affected or impaired thereby.\nf. Waivers. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nother right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to\nor waiver of any right on any other occasion.\ng. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of\nMassachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced to\nresolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the Commonwealth of\nMassachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee each consents to the\njurisdiction of such a court. The Company and the Employee each hereby irrevocably waive any right to a trial by jury in any action, suit or other\nlegal proceeding arising under or relating to any provision of this Agreement.\nh. Entire Agreement; Amendment. This Agreement supersedes all prior agreements, written or oral, between the Employee and the\nCompany relating to the subject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part,\nexcept by an agreement in writing signed by the Employee and the Company. The Employee agrees that any change or changes in Employee’s\nduties, salary or compensation after the signing of this Agreement shall not affect the validity or scope of this Agreement.\ni. Captions. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect\nthe scope or substance of any section of this Agreement.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS\nAND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\n[Remainder of the Page Intentionally Left Blank]\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year set forth above.\nWITNESS our hands and seals:\nRESTORBIO, INC.\nACKNOWLEDGED AND AGREED:\nBy:\nName: David Steinberg\nChen Schor\nTitle: Board Member	Exhibit A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this “Agreement”) is made as of this __ day of , 2017 by and between resTORbio, Inc., a\nDelaware corporation (hereinafter referred to collectively with its Affiliates as the “Company”), and Chen Schor (the “Employee”).\n \nThe Company desires to employ the Employee to provide services to the Company. In consideration of the employment or the continued\nemployment of the Employee by the Company, the Company and the Employee agree as follows:\n1. Condition of Employment.\nThe Employee acknowledges that Employee’s employment and/or the continuance of that employment with the Company is\ncontingent upon Employee’s agreement to become a party to and adhere to the provisions of this Agreement. The Employee further\nacknowledges that the nature of the Company’s business is such that protection of its proprietary and confidential information and the proprietary\nand confidential information of its Affiliates is critical to the survival and success of the Company’s business.\n2. Proprietary and Confidential Information.\na. The Employee agrees that all information and know-how, whether or not in writing, of a private, secret or confidential nature\nconcerning the Company’s or any Affiliate’s business or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive\nproperty of the Company (or any person or entity designated by the Company). By way of illustration, but not limitation, Proprietary Information\nmay include discoveries, ideas, inventions, products, product improvements, product enhancements, processes, methods, techniques, formulas,\ncompositions, compounds, negotiation strategies and positions, projects, developments, plans (including business and marketing plans), research\ndata, clinical data, financial data (including sales costs, profits, pricing methods), personnel data, computer programs (including software used\npursuant to a license agreement), computer software code, computer games, customer, prospect and supplier lists, and contacts at or knowledge\nof customers or prospective customers of the Company or any Affiliate, and the names of, contact information of, and any other data concerning,\nexisting and prospective Affiliates and existing and prospective investors of such Affiliates. The Employee shall not disclose any Proprietary\nInformation to any person or entity other than employees of the Company or use the same for any purposes (other than in the performance of\nEmployee’s duties as an employee of the Company) without written approval by an officer of the Company, either during or after Employee’s\nemployment with the Company. The Employee shall use the Employee’s best efforts to prevent unauthorized publication or disclosure of any of\nthe Company’s Proprietary Information.\nb. The Employee agrees that all files, documents, letters, memoranda, reports, records, data, sketches, drawings, models, laboratory\nnotebooks, program listings, computer equipment or devices, computer programs or other written, photographic, or other tangible or intangible\nmaterial containing Proprietary Information, whether created by the Employee or others, which shall come into Employee’s custody or\npossession, shall be and are the exclusive property of the Company to be used by the Employee only in the performance of Employee’s duties for\nthe Company and shall not be copied or removed from the Company premises except in the pursuit of the business of the Company. All such\nmaterials or copies thereof and all tangible property of the Company in the custody or possession of the Employee shall be delivered to the\nCompany, upon the earlier of (i) a request by the Company or (ii) termination of Employee’s employment for any reason. After such delivery, the\nEmployee shall not retain any such materials or copies thereof or any such tangible property.\nc. The Employee agrees that Employee’s obligation not to disclose or to use information and materials of the types set forth in\nparagraphs 2(a) and 2(b) above, and Employee’s obligation to return materials and tangible property, set forth in paragraph 2(b) above, also\nextends to such types of information, materials and tangible property of Affiliates, customers of the Company or suppliers to the Company or\nother third parties who may have disclosed or entrusted the same to the Company or to the Employee in the course of the Company’s business.\n3. Scope of Disclosure Restrictions.\nNothing in this Agreement or elsewhere prohibits the Employee from reporting possible violations of state or federal law or regulation to\nany government agency, regulator, or legal authority, or making other disclosures that are protected under the whistleblower provisions of state or\nfederal law or regulation. The Employee is not required to notify the Company that the Employee has made any such reports or disclosures;\nprovided, however, that nothing herein authorizes the disclosure of information the Employee obtained through a communication that was\nsubject to the attorney-client privilege, unless disclosure of the information would otherwise be permitted by an applicable law or rule. Further,\npursuant to the Defend Trade Secrets Act: “An individual shall not be held criminally or civilly liable under any Federal or State trade secret law\nfor the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly,\nor to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other\ndocument filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer\nfor reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the\ncourt proceeding, if the individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except\npursuant to court order.”\n4. Non-Disparagement.\nThe Employee shall not, either during Employee’s employment with the Company or thereafter, make or encourage others to make any\nstatement or release any information that is intended to, or reasonably could be foreseen to, disparage, defame or embarrass the Company or any\nof its Affiliates or their respective employees, officers, directors, partners, members or stockholders.\n5. Miscellaneous.\na. Equitable Remedies. The Employee acknowledges that the restrictions contained in this Agreement are necessary for the protection\nof the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that\nany breach or threatened breach of this Agreement is likely to cause the Company substantial and irrevocable damage which is difficult to\nmeasure. Therefore, in the event of any such breach or threatened breach, the Employee agrees that the Company, in addition to such other\nremedies which may be available, shall have the right to obtain an injunction from a court restraining such a breach or threatened breach without\nposting bond and the right to specific performance of the provisions of this Agreement and the Employee hereby waives the adequacy of a\nremedy at law as a defense to such relief.\nb. Disclosure of this Agreement. The Employee hereby authorizes the Company to notify others, including but not limited to the\nAffiliates and any of the Employee’s future employers or prospective business associates, of the terms and existence of this Agreement and the\nEmployee’s continuing obligations to the Company hereunder.\n \nc. Not Employment Contract. The Employee acknowledges that this Agreement does not constitute a contract of employment, does\nnot imply that the Company will continue Employee’s employment for any period of time and does not change the at-will nature of Employee’s\nemployment.\nd. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective\nsuccessors and assigns, including any corporation with which, or into which, the Company may be merged or which may succeed to the\nCompany’s assets or business, provided, however, that the obligations of the Employee are personal and shall not be assigned by Employee. The\nEmployee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any Affiliate thereof to whose\nemploy the Employee may be transferred without the necessity that this Agreement be re-signed at the time of such transfer.\ne. Severability. In case any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, the validity, legality and\nenforceability of the remaining provisions shall in no way be affected or impaired thereby.\nf. Waivers. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nother right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to\nor waiver of any right on any other occasion.\ng. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of\nMassachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced to\nresolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the Commonwealth of\nMassachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee each consents to the\njurisdiction of such a court. The Company and the Employee each hereby irrevocably waive any right to a trial by jury in any action, suit or other\nlegal proceeding arising under or relating to any provision of this Agreement.\nh. Entire Agreement; Amendment. This Agreement supersedes all prior agreements, written or oral, between the Employee and the\nCompany relating to the subject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part,\nexcept by an agreement in writing signed by the Employee and the Company. The Employee agrees that any change or changes in Employee’s\nduties, salary or compensation after the signing of this Agreement shall not affect the validity or scope of this Agreement.\n \ni. Captions. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect\nthe scope or substance of any section of this Agreement.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS\nAND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\n[Remainder of the Page Intentionally Left Blank]\nIN WITNESS WHEREQF, the parties hereto have executed this Agreement as of the day and year set forth above.\nWITNESS our hands and seals:\nRESTORBIO, INC. ACKNOWLEDGED AND AGREED:\nBy:\nName: David Steinberg Chen Schor\nTitle: Board Member	Exhibit A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this "Agreement") is made as of this day of 2017 by and between resTORbio, Inc., a\nDelaware corporation (hereinafter referred to collectively with its Affiliates as the "Company."), and Chen Schor (the "Employee").\nThe Company desires to employ the Employee to provide services to the Company. In consideration of the employment or the continued\nemployment of the Employee by the Company, the Company and the Employee agree as follows:\n1. Condition of Employment.\nThe Employee acknowledges that Employee's employment and/or the continuance of that employment with the Company\nis\ncontingent upon Employee's agreement to become a party to and adhere to the provisions of this Agreement. The Employee further\nacknowledges that the nature of the Company's business is such that protection of its proprietary and confidential information and the proprietary\nand confidential information of its Affiliates is critical to the survival and success of the Company's business.\n2. Proprietary and Confidential Information.\na. The Employee agrees that all information and know-how, whether or not in writing, of a private, secret or confidential nature\nconcerning the Company's or any Affiliate's business or financial affairs (collectively, "Proprietary. Information") is and shall be the exclusive\nproperty of the Company (or any person or entity designated by the Company). By way of illustration, but not limitation, Proprietary Information\nmay include discoveries, ideas, inventions, products, product improvements, product enhancements, processes, methods, techniques, formulas,\ncompositions, compounds, negotiation strategies and positions, projects, developments, plans (including business and marketing plans), research\ndata, clinical data, financial data (including sales costs, profits, pricing methods), personnel data, computer programs (including software used\npursuant to a license agreement), computer software code, computer games, customer, prospect and supplier lists, and contacts at or knowledge\nof customers or prospective customers of the Company or any Affiliate, and the names of, contact information of, and any other data concerning,\nexisting and prospective Affiliates and existing and prospective investors of such Affiliates. The Employee shall not disclose any Proprietary\nInformation to any person or entity other than employees of the Company or use the same for any purposes (other than in the performance\nof\nEmployee's duties as an employee of the Company) without written approval by an officer of the Company, either during or after Employee's\nemployment with the Company. The Employee shall use the Employee's best efforts to prevent unauthorized publication or disclosure of any of\nthe Company's Proprietary Information.\nb. The Employee agrees that all files, documents, letters, memoranda, reports, records, data, sketches, drawings, models, laboratory\nnotebooks, program listings, computer equipment or devices, computer programs or other written, photographic, or other tangible or intangible\nmaterial containing Proprietary Information, whether created by the Employee or others, which shall come into Employee's custody or\npossession, shall be and are the exclusive property of the Company to be used by the Employee only in the performance of Employee's duties for\nthe Company and shall not be copied or removed from the Company premises except in the pursuit of the business of the Company. All such\nmaterials or copies thereof and all tangible property of the Company in the custody or possession of the Employee shall be delivered to the\nCompany, upon the earlier of (i) a request by the Company or (ii) termination of Employee's employment for any reason. After such delivery, the\nEmployee shall not retain any such materials or copies thereof or any such tangible property.\nC. The Employee agrees that Employee's obligation not to disclose or to use information and materials of the types set forth in\nparagraphs 2(a) and 2(b) above, and Employee's obligation to return materials and tangible property, set forth in paragraph 2(b) above, also\nextends to such types of information, materials and tangible property of Affiliates, customers of the Company or suppliers to the Company or\nother third parties who may have disclosed or entrusted the same to the Company or to the Employee in the course of the Company's business.\n3. Scope of Disclosure Restrictions.\nNothing in this Agreement or elsewhere prohibits the Employee from reporting possible violations of state or federal law or regulation to\nany government agency, regulator, or legal authority, or making other disclosures that are protected under the whistleblower provisions of state\nor\nfederal law or regulation. The Employee is not required to notify the Company that the Employee has made any such reports or disclosures;\nprovided, however, that nothing herein authorizes the disclosure of information the Employee obtained through a communication that was\nsubject to the attorney-client privilege, unless disclosure of the information would otherwise be permitted by an applicable law or rule. Further,\npursuant to the Defend Trade Secrets Act: "An individual shall not be held criminally or civilly liable under any Federal or State trade secret\nlaw\nfor the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly,\nor to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other\ndocument filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer\nfor\nreporting\na\nsuspected\nviolation\nof\nlaw\nmay\ndisclose\nthe\ntrade\nsecret\nto\nthe\nattorney\nof\nthe\nindividual\nand\nuse\nthe\ntrade\nsecret\ninformation\nin\nthe\ncourt proceeding, if the individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except\npursuant to court order."\n4. Non-Disparagement.\nThe Employee shall not, either during Employee's employment with the Company or thereafter, make or encourage others to make any\nstatement or release any information that is intended to, or reasonably could be foreseen to, disparage, defame or embarrass the Company or any\nof its Affiliates or their respective employees, officers, directors, partners, members or stockholders.\n5. Miscellaneous.\na. Equitable Remedies. The Employee acknowledges that the restrictions contained in this Agreement are necessary for the protection\nof the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that\nany breach or threatened breach of this Agreement is likely to cause the Company substantial and irrevocable damage which is difficult to\nmeasure. Therefore, in the event of any such breach or threatened breach, the Employee agrees that the Company, in addition to such other\nremedies which may be available, shall have the right to obtain an injunction from a court restraining such a breach or threatened breach without\nposting bond and the right to specific performance of the provisions of this Agreement and the Employee hereby waives the adequacy of a\nremedy at law as a defense to such relief.\nb. Disclosure of this Agreement. The Employee hereby authorizes the Company to notify others, including but not limited to the\nAffiliates and any of the Employee's future employers or prospective business associates, of the terms and existence of this Agreement and the\nEmployee's continuing obligations to the Company hereunder.\nC. Not Employment Contract. The Employee acknowledges that this Agreement does not constitute a contract of employment, does\nnot imply that the Company will continue Employee's employment for any period of time and does not change the at-will nature of Employee's\nemployment.\nd. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective\nsuccessors and assigns, including any corporation with which, or into which, the Company may be merged or which may succeed to the\nCompany's Employee expressly assets or consents business, to provided, be bound however, by the provisions that the obligations of this Agreement of the Employee for the benefit are personal of the Company and shall not or any be assigned Affiliate by thereof Employee. to whose The\nemploy the Employee may be transferred without the necessity that this Agreement be re-signed at the time of such transfer.\ne. Severability.. In case any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, the validity, legality and\nenforceability of the remaining provisions shall in no way be affected or impaired thereby.\nf. Waivers. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nother right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to\nor waiver of any right on any other occasion.\ng. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of\nMassachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced to\nresolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the Commonwealth of\nMassachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee each consents to the\njurisdiction of such a court. The Company and the Employee each hereby irrevocably waive any right to a trial by jury in any action, suit or other\nlegal proceeding arising under or relating to any provision of this Agreement.\nh. Entire Agreement; Amendment. This Agreement supersedes all prior agreements, written or oral, between the Employee and the\nCompany relating to the subject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part,\nexcept by an agreement in writing signed by the Employee and the Company. The Employee agrees that any change or changes in Employee's\nduties, salary or compensation after the signing of this Agreement shall not affect the validity or scope of this Agreement.\ni.\nCaptions The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect\nthe scope or substance of any section of this Agreement.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS\nAND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\n[Remainder of the Page Intentionally Left Blank]\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year set forth above.\nWITNESS our hands and seals:\nRESTORBIO, INC.\nACKNOWLEDGED AND AGREED:\nBy:\nName: David Steinberg\nChen Schor\nTitle: Board Member	Exhibit A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this “Agreement”) is made as of this day of\n, 2017 by and between resTORbio, Inc., a\nDelaware corporation (hereinafter referred to collectively with its Affiliates as the “Company”), and Chen Schor (the “Employee”).\nThe Company desires to employ the Employee to provide services to the Company. In consideration of the employment or the continued\nemployment of the Employee by the Company, the Company and the Employee agree as follows:\n1. Condition of Employment.\nThe Employee acknowledges that Employee’s employment and/or the continuance of that employment with the Company is\ncontingent upon Employee’s agreement to become a party to and adhere to the provisions of this Agreement. The Employee further\nacknowledges that the nature of the Company’s business is such that protection of its proprietary and confidential information and the proprietary\nand confidential information of its Affiliates is critical to the survival and success of the Company’s business.\n2. Proprietary and Confidential Information.\na. The Employee agrees that all information and know-how, whether or not in writing, of a private, secret or confidential nature\nconcerning the Company’s or any Affiliate’s business or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive\nproperty of the Company (or any person or entity designated by the Company). By way of illustration, but not limitation, Proprietary Information\nmay include discoveries, ideas, inventions, products, product improvements, product enhancements, processes, methods, techniques, formulas,\ncompositions, compounds, negotiation strategies and positions, projects, developments, plans (including business and marketing plans), research\ndata, clinical data, financial data (including sales costs, profits, pricing methods), personnel data, computer programs (including software used\npursuant to a license agreement), computer software code, computer games, customer, prospect and supplier lists, and contacts at or knowledge\nof customers or prospective customers of the Company or any Affiliate, and the names of, contact information of, and any other data concerning,\nexisting and prospective Affiliates and existing and prospective investors of such Affiliates. The Employee shall not disclose any Proprietary\nInformation to any person or entity other than employees of the Company or use the same for any purposes (other than in the performance of\nEmployee’s duties as an employee of the Company) without written approval by an officer of the Company, either during or after Employee’s\nemployment with the Company. The Employee shall use the Employee’s best efforts to prevent unauthorized publication or disclosure of any of\nthe Company’s Proprietary Information.\nb. The Employee agrees that all files, documents, letters, memoranda, reports, records, data, sketches, drawings, models, laboratory\nnotebooks, program listings, computer equipment or devices, computer programs or other written, photographic, or other tangible or intangible\nmaterial containing Proprietary Information, whether created by the Employee or others, which shall come into Employee’s custody or\npossession, shall be and are the exclusive property of the Company to be used by the Employee only in the performance of Employee’s duties for\nthe Company and shall not be copied or removed from the Company premises except in the pursuit of the business of the Company. All such\nmaterials or copies thereof and all tangible property of the Company in the custody or possession of the Employee shall be delivered to the\nCompany, upon the earlier of (i) a request by the Company or (ii) termination of Employee’s employment for any reason. After such delivery, the\nEmployee shall not retain any such materials or copies thereof or any such tangible property.\nc. The Employee agrees that Employee’s obligation not to disclose or to use information and materials of the types set forth in\nparagraphs 2(a) and 2(b) above, and Employee’s obligation to return materials and tangible property, set forth in paragraph 2(b) above, also\nextends to such types of information, materials and tangible property of Affiliates, customers of the Company or suppliers to the Company or\nother third parties who may have disclosed or entrusted the same to the Company or to the Employee in the course of the Company’s business.\n3. Scope of Disclosure Restrictions.\nNothing in this Agreement or elsewhere prohibits the Employee from reporting possible violations of state or federal law or regulation to\nany government agency, regulator, or legal authority, or making other disclosures that are protected under the whistleblower provisions of state or\nfederal law or regulation. The Employee is not required to notify the Company that the Employee has made any such reports or disclosures;\nprovided, however, that nothing herein authorizes the disclosure of information the Employee obtained through a communication that was\nsubject to the attorney-client privilege, unless disclosure of the information would otherwise be permitted by an applicable law or rule. Further,\npursuant to the Defend Trade Secrets Act: “An individual shall not be held criminally or civilly liable under any Federal or State trade secret law\nfor the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly,\nor to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other\ndocument filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer\nfor reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the\ncourt proceeding, if the individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except\npursuant to court order.”\n4. Non-Disparagement.\nThe Employee shall not, either during Employee’s employment with the Company or thereafter, make or encourage others to make any\nstatement or release any information that is intended to, or reasonably could be foreseen to, disparage, defame or embarrass the Company or any\nof its Affiliates or their respective employees, officers, directors, partners, members or stockholders.\n5. Miscellaneous.\na. Equitable Remedies. The Employee acknowledges that the restrictions contained in this Agreement are necessary for the protection\nof the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that\nany breach or threatened breach of this Agreement is likely to cause the Company substantial and irrevocable damage which is difficult to\nmeasure. Therefore, in the event of any such breach or threatened breach, the Employee agrees that the Company, in addition to such other\nremedies which may be available, shall have the right to obtain an injunction from a court restraining such a breach or threatened breach without\nposting bond and the right to specific performance of the provisions of this Agreement and the Employee hereby waives the adequacy of a\nremedy at law as a defense to such relief.\nb. Disclosure of this Agreement. The Employee hereby authorizes the Company to notify others, including but not limited to the\nAffiliates and any of the Employee’s future employers or prospective business associates, of the terms and existence of this Agreement and the\nEmployee’s continuing obligations to the Company hereunder.\nc. Not Employment Contract. The Employee acknowledges that this Agreement does not constitute a contract of employment, does\nnot imply that the Company will continue Employee’s employment for any period of time and does not change the at-will nature of Employee’s\nemployment.\nd. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective\nsuccessors and assigns, including any corporation with which, or into which, the Company may be merged or which may succeed to the\nCompany’s assets or business, provided, however, that the obligations of the Employee are personal and shall not be assigned by Employee. The\nEmployee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any Affiliate thereof to whose\nemploy the Employee may be transferred without the necessity that this Agreement be re-signed at the time of such transfer.\ne. Severability. In case any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, the validity, legality and\nenforceability of the remaining provisions shall in no way be affected or impaired thereby.\nf. Waivers. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nother right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to\nor waiver of any right on any other occasion.\ng. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of\nMassachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced to\nresolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the Commonwealth of\nMassachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee each consents to the\njurisdiction of such a court. The Company and the Employee each hereby irrevocably waive any right to a trial by jury in any action, suit or other\nlegal proceeding arising under or relating to any provision of this Agreement.\nh. Entire Agreement; Amendment. This Agreement supersedes all prior agreements, written or oral, between the Employee and the\nCompany relating to the subject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part,\nexcept by an agreement in writing signed by the Employee and the Company. The Employee agrees that any change or changes in Employee’s\nduties, salary or compensation after the signing of this Agreement shall not affect the validity or scope of this Agreement.\ni. Captions. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect\nthe scope or substance of any section of this Agreement.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS\nAND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\n[Remainder of the Page Intentionally Left Blank]\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year set forth above.\nWITNESS our hands and seals:\nRESTORBIO, INC.\nACKNOWLEDGED AND AGREED:\nBy:\nName: David Steinberg\nChen Schor\nTitle: Board Member
5300d7e38a3a997db57fcaeb1d95fa38.pdf	effective_date jurisdiction party term	EX-99.D.3 12 c60911exv99wdw3.htm EX-99.D.3\nExhibit (d)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is made and entered into as of the 25th day of June, 2010 (“Effective\nDate”), between Cardiac Science Corporation, a Delaware corporation having its principal place of business at 3303 Monte Villa Parkway,\nBothell, Washington 98021-8906, and Criticare Systems/Opto, a\ncorporation having its principal place of business at 20925\nCrossroads Circle, Waukesha WI 53186.\n1 . Purpose. The parties wish to engage in discussions regarding exploration of a business opportunity of mutual interest (“Authorized Purpose”)\nand in connection with this Authorized Purpose, each party may disclose to the other certain confidential technical and business information\nwhich Owner desires Recipient to treat as confidential. The party disclosing Confidential Information is referred to herein as the “Owner” and\nthe party receiving Confidential Information is referred to herein as the “Recipient”.\n2. “Confidential Information” means any information (including without limitation documents, computer data, or oral communications) disclosed\nby either party to the other party, either directly or indirectly, that is identified as confidential or other similar designation at the time of disclosure\nor is known or should reasonably be known by the Recipient to be confidential in nature. The existence and subject matter of the parties’\ndiscussions shall be treated as Confidential Information. Confidential Information may also include information disclosed to Owner by third\nparties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the\npublic domain prior to the time of disclosure by Owner; (ii) becomes publicly known and made generally available after disclosure by Owner to\nRecipient through no action or inaction of Recipient; (iii) is already in the possession of Recipient at the time of disclosure by Owner as shown\nby Recipient’s files and records immediately prior to the time of disclosure; (iv) is obtained by Recipient from a third party without a breach of\nsuch third party’s obligations of confidentiality; or (v) is independently developed by Recipient without use of or reference to Owner ’s\nConfidential Information, as shown by documents and other competent evidence in Recipient’s possession.\n3. Legally Compelled Disclosure. If Recipient is required to disclose Owner’s Confidential Information pursuant to a valid order by a court or\nother governmental body or as otherwise required by law, prior to any such compelled disclosure, Recipient will (i) notify Owner of the legal\nprocess, and allow Owner to assert the privileged and confidential nature of the Confidential Information against the third party seeking\ndisclosure and (ii) reasonably cooperate with Owner in protecting against any such disclosure and/or obtaining a protective order narrowing the\nscope of such disclosure and/or use of the Confidential Information. If such protection against disclosure is not obtained, Recipient will be\nentitled to disclose the Confidential Information, but only as and to the extent necessary to legally comply with such compelled disclosure.\n4. Non-use and Non-disclosure. Each party agrees to use any Confidential Information of the other party solely for the Authorized Purpose and\nnot for any third party’s benefit. Each party agrees to limit disclosures of Confidential Information of the other party to those employees and\nagents of Recipient who are required to have the information in order to evaluate or engage in discussions regarding the Authorized Purpose.\nEach party agrees that it will not disclose any of the Confidential Information to any third party without the express written consent of Owner.\nNeither party shall reverse engineer, disassemble or decompile any of the Confidential Information of the other party or any of the prototypes,\nsoftware or other tangible objects which embody the Confidential Information of the other party and which are provided to the party hereunder.\nCertain Confidential Information may be considered material non-public information under Regulation FD promulgated by the Securities and\nExchange Commission. Recipient acknowledges that the United States securities laws prohibit it or any person who has received material\nnonpublic information about the Owner from purchasing or selling securities of the Owner or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities in reliance on such\ninformation, and agrees not to purchase, sell or otherwise engage in transactions in Owner’s stock based on such material nonpublic information\nuntil such time as the information becomes disseminated to the public either through a press release issued by Owner or through a filing made by\nOwner pursuant to the Securities\nCONFIDENTIAL\nNDA-CSC Standard\nPage1of3\nExchange Act of 1934, as amended; provided, however, that Recipient may make any disclosure or use of such information to which Owner\ngives its prior written consent.\n5. Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and\nunauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures\nthat it takes to protect its own most highly confidential information and shall ensure that its employees and agents who have access to\nConfidential Information of the other party are subject to confidentiality obligations similar in scope and nature to the provisions hereof, prior to\nany disclosure of Confidential Information to such employees or agents. Each party shall reproduce the other party’s proprietary rights notices on\nany such approved copies, in the same manner in which such notices were set forth in or on the original.\n6. No Obligation. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its\nsole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity.\n7. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. EACH PARTY MAKES NO WARRANTIES, EXPRESS,\nIMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE, NON-INFRINGEMENT OF\nTHIRD PARTY RIGHTS, OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.\n8. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed\nby either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of Owner\nand shall be promptly returned to Owner upon Owner ’s written request or upon termination of this Agreement.\n9. No License. Nothing in this Agreement is intended to grant any rights to either party under any patent, mask work right or copyright of the\nother party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party except as expressly set\nforth herein.\n10. Term. This Agreement covers the disclosure of all Confidential Information for a period of three (3) years commencing as of the Effective\nDate. Recipient’s duty to protect the Confidential Information disclosed under this Agreement expires five (5) years from the date of receipt of\nConfidential Information (the “Confidentiality Term”). Either party may terminate this Agreement earlier by giving thirty (30) days prior written\nnotice of termination to the other party. Upon the expiration or termination of this Agreement, the obligations of each party shall survive with\nrespect to Confidential Information of the other party disclosed hereunder until such time as the respective Confidential Information becomes\npublicly known and made generally available through no action or inaction of Recipient or until the end of the Confidentiality Term, whichever\noccurs sooner. For the avoidance of doubt, upon termination of this Agreement, each party’s obligation to keep the Confidential Information of\nthe other party confidential for the Confidentiality Term shall apply even in the event where one party is acquired or merged by or into a third\nparty, and such third party shall have the right to enforce this obligation as a third party beneficiary.\n11. Remedies. Each party agrees and acknowledges that any breach of this Agreement may cause irreparable harm to the other party for which\nmonetary damages may be inadequate. Accordingly, the harmed party may be entitled to seek injunctive or other equitable relief to remedy any\nthreatened or actual breach of this Agreement by the other party.\n12. Notice. Any notice or other communication under this Agreement given by either party to the other party shall be deemed to be properly\ngiven if given in writing and delivered (i) by nationally recognized private courier (e.g ., Federal Express), (ii) facsimile directed at the signatory\nof the other party (at the number below), or (iii) by mail (return receipt requested), properly addressed and stamped with the required postage, to\nthe recipient at the address identified in its signature block to this Agreement. Either party may from time to time change its fax number or\naddress by giving the other party notice of the change in accordance with this Section.\nCONFIDENTIAL\nNDA-CSC Standard\nPage2of3\n13. Miscellaneous. This document contains the entire agreement between the parties with respect to the subject matter hereof and neither party\nshall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth\nherein. Each party represents, warrants and covenants that it has the full right and authority to enter into this Agreement and perform its\nobligations hereunder, that all required corporate approvals and authorizations have been obtained, and that, upon signature by its authorized\nrepresentative listed below, this Agreement shall have been duly executed and be legally binding upon the respective party in all respects. This\nAgreement shall be governed by the laws of the State of Washington, without reference to conflict of laws principles. Any failure to enforce any\nprovision of this Agreement shall not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any\nobligation waived, except by a writing signed by both parties hereto.\nIN WITNESS WHEREOF, the parties have executed this Agreement through their duly authorized representatives as of the Effective Date.\nCARDIAC SCIENCE CORPORATION\nSignature:\n/s/ Mark Daniel\nName:\nMark Daniel\nTitle:\nController\nFax Number:\n425-402-2012\nDate:\n7/27/10\nFor:\nSignature:\nName:\nTitle:\nFax Number:\nE-mail Address:\nDate:\nCSI/Opto Circuits\n/s/ Joseph LaPorta\nJoseph LaPorta\nCOO\n262-798-5237\njoseph.laporta@csiusa.com\n6/25/10\nCONFIDENTIAL\nNDA-CSC Standard\nPage3of3	EX-99.D.3 12 ¢60911exv99wdw3.htm EX-99.D.3\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is made and entered into as of the 25th day of June, 2010 (“Effective\nDate”), between Cardiac Science Corporation, a Delaware corporation having its principal place of business at 3303 Monte Villa Parkway,\nBothell, Washington 98021-8906, and Criticare Systems/Opto, a corporation having its principal place of business at 20925\nCrossroads Circle, Waukesha W1 53186.\n \n1 . Purpose. The parties wish to engage in discussions regarding exploration of a business opportunity of mutual interest (“Authorized Purpose”)\nand in connection with this Authorized Purpose, each party may disclose to the other certain confidential technical and business information\nwhich Owner desires Recipient to treat as confidential. The party disclosing Confidential Information is referred to herein as the “Owner” and\nthe party receiving Confidential Information is referred to herein as the “Recipient”.\n2. “Confidential Information” means any information (including without limitation documents, computer data, or oral communications) disclosed\nby either party to the other party, either directly or indirectly, that is identified as confidential or other similar designation at the time of disclosure\nor is known or should reasonably be known by the Recipient to be confidential in nature. The existence and subject matter of the parties’\ndiscussions shall be treated as Confidential Information. Confidential Information may also include information disclosed to Owner by third\nparties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the\npublic domain prior to the time of disclosure by Owner; (ii) becomes publicly known and made generally available after disclosure by Owner to\nRecipient through no action or inaction of Recipient; (iii) is already in the possession of Recipient at the time of disclosure by Owner as shown\nby Recipient’s files and records immediately prior to the time of disclosure; (iv) is obtained by Recipient from a third party without a breach of\nsuch third party’s obligations of confidentiality; or (v) is independently developed by Recipient without use of or reference to Owner’s\nConfidential Information, as shown by documents and other competent evidence in Recipient’s possession.\n3. Legally Compelled Disclosure. If Recipient is required to disclose Owner’s Confidential Information pursuant to a valid order by a court or\nother governmental body or as otherwise required by law, prior to any such compelled disclosure, Recipient will (i) notify Owner of the legal\nprocess, and allow Owner to assert the privileged and confidential nature of the Confidential Information against the third party seeking\ndisclosure and (ii) reasonably cooperate with Owner in protecting against any such disclosure and/or obtaining a protective order narrowing the\nscope of such disclosure and/or use of the Confidential Information. If such protection against disclosure is not obtained, Recipient will be\nentitled to disclose the Confidential Information, but only as and to the extent necessary to legally comply with such compelled disclosure.\n4. Non-use and Non-disclosure. Each party agrees to use any Confidential Information of the other party solely for the Authorized Purpose and\nnot for any third party’s benefit. Each party agrees to limit disclosures of Confidential Information of the other party to those employees and\nagents of Recipient who are required to have the information in order to evaluate or engage in discussions regarding the Authorized Purpose.\nEach party agrees that it will not disclose any of the Confidential Information to any third party without the express written consent of Owner.\nNeither party shall reverse engineer, disassemble or decompile any of the Confidential Information of the other party or any of the prototypes,\nsoftware or other tangible objects which embody the Confidential Information of the other party and which are provided to the party hereunder.\nCertain Confidential Information may be considered material non-public information under Regulation FD promulgated by the Securities and\nExchange Commission. Recipient acknowledges that the United States securities laws prohibit it or any person who has received material\nnonpublic information about the Owner from purchasing or selling securities of the Owner or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities in reliance on such\ninformation, and agrees not to purchase, sell or otherwise engage in transactions in Owner’s stock based on such material nonpublic information\nuntil such time as the information becomes disseminated to the public either through a press release issued by Owner or through a filing made by\nOwner pursuant to the Securities\nCONFIDENTIAL NDA-CSC Standard\nPage 1 of 3\nExchange Act of 1934, as amended; provided, however, that Recipient may make any disclosure or use of such information to which Owner\ngives its prior written consent.\n5. Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and\nunauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures\nthat it takes to protect its own most highly confidential information and shall ensure that its employees and agents who have access to\nConfidential Information of the other party are subject to confidentiality obligations similar in scope and nature to the provisions hereof, prior to\nany disclosure of Confidential Information to such employees or agents. Each party shall reproduce the other party’s proprietary rights notices on\nany such approved copies, in the same manner in which such notices were set forth in or on the original.\n6. No Obligation. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its\nsole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity.\n7. No Warranty. ALL. CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. EACH PARTY MAKES NO WARRANTIES, EXPRESS,\nIMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE, NON-INFRINGEMENT OF\nTHIRD PARTY RIGHTS, OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.\n8. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed\nby either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of Owner\nand shall be promptly returned to Owner upon Owner’s written request or upon termination of this Agreement.\n9. No License. Nothing in this Agreement is intended to grant any rights to either party under any patent, mask work right or copyright of the\nother party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party except as expressly set\nforth herein.\n10. Term. This Agreement covers the disclosure of all Confidential Information for a period of three (3) years commencing as of the Effective\nDate. Recipient’s duty to protect the Confidential Information disclosed under this Agreement expires five (5) years from the date of receipt of\nConfidential Information (the “Confidentiality Term”). Either party may terminate this Agreement earlier by giving thirty (30) days prior written\nnotice of termination to the other party. Upon the expiration or termination of this Agreement, the obligations of each party shall survive with\nrespect to Confidential Information of the other party disclosed hereunder until such time as the respective Confidential Information becomes\npublicly known and made generally available through no action or inaction of Recipient or until the end of the Confidentiality Term, whichever\noccurs sooner. For the avoidance of doubt, upon termination of this Agreement, each party’s obligation to keep the Confidential Information of\nthe other party confidential for the Confidentiality Term shall apply even in the event where one party is acquired or merged by or into a third\nparty, and such third party shall have the right to enforce this obligation as a third party beneficiary.\n \n11. Remedies. Each party agrees and acknowledges that any breach of this Agreement may cause irreparable harm to the other party for which\nmonetary damages may be inadequate. Accordingly, the harmed party may be entitled to seek injunctive or other equitable relief to remedy any\nthreatened or actual breach of this Agreement by the other party.\n12. Notice. Any notice or other communication under this Agreement given by either party to the other party shall be deemed to be properly\ngiven if given in writing and delivered (i) by nationally recognized private courier (e.g., Federal Express), (ii) facsimile directed at the signatory\nof the other party (at the number below), or (iii) by mail (return receipt requested), properly addressed and stamped with the required postage, to\nthe recipient at the address identified in its signature block to this Agreement. Either party may from time to time change its fax number or\naddress by giving the other party notice of the change in accordance with this Section.\nCONFIDENTIAL NDA-CSC Standard\nPage 2 of 3\n13. Miscellaneous. This document contains the entire agreement between the parties with respect to the subject matter hereof and neither party shall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth herein. Each party represents, warrants and covenants that it has the full right and authority to enter into this Agreement and perform its obligations hereunder, that all required corporate approvals and authorizations have been obtained, and that, upon signature by its authorized representative listed below, this Agreement shall have been duly executed and be legally binding upon the respective party in all respects. This Agreement shall be governed by the laws of the State of Washington, without reference to conflict of laws principles. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties hereto. IN WITNESS WHEREQF, the parties have executed this Agreement through their duly authorized representatives as of the Effective Date. CARDIAC SCIENCE CORPORATION Signature:\nName:\nTitle:\nFax Number:\nDate:\nFor:\nSignature:\nName:\nTitle:\nFax Number:\nE-mail Address:\nDate:\nCONFIDENTIAL\n/s/ Mark Daniel\nMark Daniel\nController\n425-402-2012\n7/27/10\nCSI/Opto Circuits\n/s/ Joseph LaPorta\nJoseph LaPorta\nCOO\n262-798-5237\njoseph.laporta@csiusa.com\n6/25/10\nPage 3 of 3\nNDA-CSC Standard	EX-99.D.3 12 c60911exv99wdw3.htm EX-99.D.3\nExhibit (d)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT ("Agreement") is made and entered into as of the 25th day of June, 2010 ("Effective\nDate"), between Cardiac Science Corporation, a Delaware corporation having its principal place of business at 3303 Monte Villa Parkway,\nBothell, Washington 98021-8906, and Criticare Systems/Opto, a corporation having its principal place of business at 20925\nCrossroads Circle, Waukesha WI 53186.\n1 Purpose. The parties wish to engage in discussions regarding exploration of a business opportunity of mutual interest ("Authorized Purpose")\nand in connection with this Authorized Purpose, each party may disclose to the other certain confidential technical and business information\nwhich Owner desires Recipient to treat as confidential. The party disclosing Confidential Information is referred to herein as the "Owner" and\nthe party receiving Confidential Information is referred to herein as the "Recipient".\n2. "Confidential Information" means any information (including without limitation documents, computer data, or oral communications) disclosed\nby either party to the other party, either directly or indirectly, that is identified as confidential or other similar designation at the time of disclosure\nor is known or should reasonably be known by the Recipient to be confidential in nature. The existence and subject matter of the parties'\ndiscussions shall be treated as Confidential Information. Confidential Information may also include information disclosed to Owner by third\nparties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the\npublic domain prior to the time of disclosure by Owner; (ii) becomes publicly known and made generally available after disclosure by Owner to\nRecipient through no action or inaction of Recipient; (iii) is already in the possession of Recipient at the time of disclosure by Owner as shown\nby Recipient's files and records immediately prior to the time of disclosure; (iv) is obtained by Recipient from a third party without a breach\nof\nsuch third party's obligations of confidentiality; or (v) is independently developed by Recipient without use of or reference to Owner's\nConfidential Information, as shown by documents and other competent evidence in Recipient's possession.\n3. Legally Compelled Disclosure. If Recipient is required to disclose Owner's Confidential Information pursuant to a valid order by a court or\nother governmental body or as otherwise required by law, prior to any such compelled disclosure, Recipient will (i) notify Owner of the legal\nprocess, and allow Owner to assert the privileged and confidential nature of the Confidential Information against the third party seeking\ndisclosure\nand\n(ii)\nreasonably\ncooperate\nwith\nOwner\nin\nprotecting\nagainst\nany\nsuch\ndisclosure\nand/or\nobtaining\na\nprotective\norder\nnarrowing\nthe\nscope of such disclosure and/or use of the Confidentia Information If such protection against disclosure is not obtained, Recipient will be\nentitled to disclose the Confidential Information, but only as and to the extent necessary to legally comply with such compelled disclosure.\n4. Non-use and Non-disclosure. Each party agrees to use any Confidential Information of the other party solely for the Authorized Purpose and\nnot for any third party's benefit. Each party agrees to limit disclosures of Confidential Information of the other party to those employees and\nagents\nof Recipient who are required to have the information in order to evaluate or engage in discussions regarding the Authorized Purpose.\nEach party agrees that it will not disclose any of the Confidential Information to any third party without the express written consent of Owner.\nNeither party shall reverse engineer, disassemble or decompile any of the Confidential Information of the other party or any of the prototypes,\nsoftware or other tangible objects which embody the Confidential Information of the other party and which are provided to the party hereunder.\nCertain Confidential Information may be considered material non-public information under Regulation FD promulgated by the Securities and\nExchange Commission. Recipient acknowledges that the United States securities laws prohibit it or any person who has received material\nnonpublic information about the Owner from purchasing or selling securities of the Owner or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities in reliance on such\ninformation, and agrees not to purchase, sell or otherwise engage in transactions in Owner's stock based on such material nonpublic information\nuntil such time as the information becomes disseminated to the public either through a press release issued by Owner or through a filing made by\nOwner pursuant to the Securities\nCONFIDENTIAL\nNDA-CSC Standard\nPage 1 of 3\nExchange Act of 1934, as amended; provided, however, that Recipient may make any disclosure or use of such information to which Owner\ngives its prior written consent.\n5. Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and\nunauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures\nthat it takes to protect its own most highly confidential information and shall ensure that its employees and agents who have access to\nConfidential Information of the other party are subject to confidentiality obligations similar in scope and nature to the provisions hereof, prior to\nany disclosure of Confidential Information to such employees or agents. Each party shall reproduce the other party's proprietary rights notices on\nany such approved copies, in the same manner in which such notices were set forth in or on the original.\n6. No Obligation. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its\nsole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity.\n7. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS". EACH PARTY MAKES NO WARRANTIES, EXPRESS,\nIMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE, NON-INFRINGEMENT OF\nTHIRD PARTY RIGHTS, OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.\n8. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed\nby either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of Owner\nand shall be promptly returned to Owner upon Owner's written request or upon termination of this Agreement.\n9.\nNo License. Nothing in this Agreement is intended to grant any rights to either party under any patent, mask work right or copyright of the\nother party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party except as expressly set\nforth herein.\n10\nTerm.\nThis\nAgreement\ncovers\nthe\ndisclosure\nof\nall\nConfidentia\nInformation\nfor\na\nperiod\nof\nthree\n(3)\nyears\ncommencing\nas\nof\nthe\nEffective\nDate. Recipient's duty to protect the Confidential Information disclosed under this Agreement expires five (5) years from the date of receipt\nof\nConfidential Information (the "Confidentiality Tern Either party may terminate this Agreement earlier by giving thirty (30) days prior written\nnotice of termination to the other party. Upon the expiration or termination of this Agreement, the obligations of each party shall survive with\nrespect to Confidential Information of the other party disclosed hereunder until such time as the respective Confidential Information becomes\npublicly known and made generally available through no action or inaction of Recipient or until the end of the Confidentiality Term, whichever\noccurs sooner. For the avoidance of doubt, upon termination of this Agreement, each party's obligation to keep the Confidential Information of\nthe other party confidential for the Confidentiality Term shall apply even in the event where one party is acquired or merged by or into a third\nparty, and such third party shall have the right to enforce this obligation as a third party beneficiary.\n11. Remedies. Each party agrees and acknowledges that any breach of this Agreement may cause irreparable harm to the other party for which\nmonetary damages may be inadequate. Accordingly, the harmed party may be entitled to seek injunctive or other equitable relief to remedy\nany\nthreatened or actual breach of this Agreement by the other party.\n12. Notice. Any notice or other communication under this Agreement given by either party to the other party shall be deemed to be properly\ngiven if given in writing and delivered (i) by nationally recognized private courier (e.g., Federal Express), (ii) facsimile directed at the signatory\nof the other party (at the number below), or (iii) by mail (return receipt requested), properly addressed and stamped with the required postage, to\nthe recipient at the address identified in its signature block to this Agreement. Either party may from time to time change its fax number or\naddress by giving the other party notice of the change in accordance with this Section.\nCONFIDENTIAL\nNDA-CSC Standard\nPage 2 of 3\n13. Miscellaneous. This document contains the entire agreement between the parties with respect to the subject matter hereof and neither party\nshall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth\nherein. Each party represents, warrants and covenants that it has the full right and authority to enter into this Agreement and perform its\nobligations hereunder, that all required corporate approvals and authorizations have been obtained, and that, upon signature by its authorized\nrepresentative listed below, this Agreement shall have been duly executed and be legally binding upon the respective party in all respects. This\nAgreement shall be governed by the laws of the State of Washington, without reference to conflict of laws principles. Any failure to enforce any\nprovision of this Agreement shall not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any\nobligation waived, except by a writing signed by both parties hereto.\nIN WITNESS WHEREOF, the parties have executed this Agreement through their duly authorized representatives as of the Effective Date.\nCARDIAC SCIENCE CORPORATION\nSignature:\n/s/ Mark Daniel\nName:\nMark Daniel\nTitle:\nController\nFax Number:\n425-402-2012\nDate:\n7/27/10\nFor:\nCSI/Opto Circuits\nSignature:\n/s/ Joseph LaPorta\nName:\nJoseph LaPorta\nCOO\nTitle:\n262-798-5237\njoseph.laporta@csiusa.com\nFax Number:\n6/25/10\nE-mail Address:\nDate:\nCONFIDENTIAL\nNDA-CSC Standard\nPage 3 of 3	EX-99.D.3 12 c60911exv99wdw3.htm EX-99.D.3\nExhibit (d)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is made and entered into as of the 25th day of June, 2010 (“Effective\nDate”), between Cardiac Science Corporation, a Delaware corporation having its principal place of business at 3303 Monte Villa Parkway,\nBothell, Washington 98021-8906, and Criticare Systems/Opto, a\ncorporation having its principal place of business at 20925\nCrossroads Circle, Waukesha WI 53186.\n1 . Purpose. The parties wish to engage in discussions regarding exploration of a business opportunity of mutual interest (“Authorized Purpose”)\nand in connection with this Authorized Purpose, each party may disclose to the other certain confidential technical and business information\nwhich Owner desires Recipient to treat as confidential. The party disclosing Confidential Information is referred to herein as the “Owner” and\nthe party receiving Confidential Information is referred to herein as the “Recipient”.\n2. “Confidential Information” means any information (including without limitation documents, computer data, or oral communications) disclosed\nby either party to the other party, either directly or indirectly, that is identified as confidential or other similar designation at the time of disclosure\nor is known or should reasonably be known by the Recipient to be confidential in nature. The existence and subject matter of the parties’\ndiscussions shall be treated as Confidential Information. Confidential Information may also include information disclosed to Owner by third\nparties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the\npublic domain prior to the time of disclosure by Owner; (ii) becomes publicly known and made generally available after disclosure by Owner to\nRecipient through no action or inaction of Recipient; (iii) is already in the possession of Recipient at the time of disclosure by Owner as shown\nby Recipient’s files and records immediately prior to the time of disclosure; (iv) is obtained by Recipient from a third party without a breach of\nsuch third party’s obligations of confidentiality; or (v) is independently developed by Recipient without use of or reference to Owner ’s\nConfidential Information, as shown by documents and other competent evidence in Recipient’s possession.\n3. Legally Compelled Disclosure. If Recipient is required to disclose Owner’s Confidential Information pursuant to a valid order by a court or\nother governmental body or as otherwise required by law, prior to any such compelled disclosure, Recipient will (i) notify Owner of the legal\nprocess, and allow Owner to assert the privileged and confidential nature of the Confidential Information against the third party seeking\ndisclosure and (ii) reasonably cooperate with Owner in protecting against any such disclosure and/or obtaining a protective order narrowing the\nscope of such disclosure and/or use of the Confidential Information. If such protection against disclosure is not obtained, Recipient will be\nentitled to disclose the Confidential Information, but only as and to the extent necessary to legally comply with such compelled disclosure.\n4. Non-use and Non-disclosure. Each party agrees to use any Confidential Information of the other party solely for the Authorized Purpose and\nnot for any third party’s benefit. Each party agrees to limit disclosures of Confidential Information of the other party to those employees and\nagents of Recipient who are required to have the information in order to evaluate or engage in discussions regarding the Authorized Purpose.\nEach party agrees that it will not disclose any of the Confidential Information to any third party without the express written consent of Owner.\nNeither party shall reverse engineer, disassemble or decompile any of the Confidential Information of the other party or any of the prototypes,\nsoftware or other tangible objects which embody the Confidential Information of the other party and which are provided to the party hereunder.\nCertain Confidential Information may be considered material non-public information under Regulation FD promulgated by the Securities and\nExchange Commission. Recipient acknowledges that the United States securities laws prohibit it or any person who has received material\nnonpublic information about the Owner from purchasing or selling securities of the Owner or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities in reliance on such\ninformation, and agrees not to purchase, sell or otherwise engage in transactions in Owner’s stock based on such material nonpublic information\nuntil such time as the information becomes disseminated to the public either through a press release issued by Owner or through a filing made by\nOwner pursuant to the Securities\nCONFIDENTIAL\nNDA-CSC Standard\nPage1of3\nExchange Act of 1934, as amended; provided, however, that Recipient may make any disclosure or use of such information to which Owner\ngives its prior written consent.\n5. Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and\nunauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures\nthat it takes to protect its own most highly confidential information and shall ensure that its employees and agents who have access to\nConfidential Information of the other party are subject to confidentiality obligations similar in scope and nature to the provisions hereof, prior to\nany disclosure of Confidential Information to such employees or agents. Each party shall reproduce the other party’s proprietary rights notices on\nany such approved copies, in the same manner in which such notices were set forth in or on the original.\n6. No Obligation. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its\nsole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity.\n7. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. EACH PARTY MAKES NO WARRANTIES, EXPRESS,\nIMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE, NON-INFRINGEMENT OF\nTHIRD PARTY RIGHTS, OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.\n8. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed\nby either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of Owner\nand shall be promptly returned to Owner upon Owner ’s written request or upon termination of this Agreement.\n9. No License. Nothing in this Agreement is intended to grant any rights to either party under any patent, mask work right or copyright of the\nother party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party except as expressly set\nforth herein.\n10. Term. This Agreement covers the disclosure of all Confidential Information for a period of three (3) years commencing as of the Effective\nDate. Recipient’s duty to protect the Confidential Information disclosed under this Agreement expires five (5) years from the date of receipt of\nConfidential Information (the “Confidentiality Term”). Either party may terminate this Agreement earlier by giving thirty (30) days prior written\nnotice of termination to the other party. Upon the expiration or termination of this Agreement, the obligations of each party shall survive with\nrespect to Confidential Information of the other party disclosed hereunder until such time as the respective Confidential Information becomes\npublicly known and made generally available through no action or inaction of Recipient or until the end of the Confidentiality Term, whichever\noccurs sooner. For the avoidance of doubt, upon termination of this Agreement, each party’s obligation to keep the Confidential Information of\nthe other party confidential for the Confidentiality Term shall apply even in the event where one party is acquired or merged by or into a third\nparty, and such third party shall have the right to enforce this obligation as a third party beneficiary.\n11. Remedies. Each party agrees and acknowledges that any breach of this Agreement may cause irreparable harm to the other party for which\nmonetary damages may be inadequate. Accordingly, the harmed party may be entitled to seek injunctive or other equitable relief to remedy any\nthreatened or actual breach of this Agreement by the other party.\n12. Notice. Any notice or other communication under this Agreement given by either party to the other party shall be deemed to be properly\ngiven if given in writing and delivered (i) by nationally recognized private courier (e.g ., Federal Express), (ii) facsimile directed at the signatory\nof the other party (at the number below), or (iii) by mail (return receipt requested), properly addressed and stamped with the required postage, to\nthe recipient at the address identified in its signature block to this Agreement. Either party may from time to time change its fax number or\naddress by giving the other party notice of the change in accordance with this Section.\nCONFIDENTIAL\nNDA-CSC Standard\nPage2of3\n13. Miscellaneous. This document contains the entire agreement between the parties with respect to the subject matter hereof and neither party\nshall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth\nherein. Each party represents, warrants and covenants that it has the full right and authority to enter into this Agreement and perform its\nobligations hereunder, that all required corporate approvals and authorizations have been obtained, and that, upon signature by its authorized\nrepresentative listed below, this Agreement shall have been duly executed and be legally binding upon the respective party in all respects. This\nAgreement shall be governed by the laws of the State of Washington, without reference to conflict of laws principles. Any failure to enforce any\nprovision of this Agreement shall not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any\nobligation waived, except by a writing signed by both parties hereto.\nIN WITNESS WHEREOF, the parties have executed this Agreement through their duly authorized representatives as of the Effective Date.\nCARDIAC SCIENCE CORPORATION\nSignature:\n/s/ Mark Daniel\nName:\nMark Daniel\nTitle:\nController\nFax Number:\n425-402-2012\nDate:\n7/27/10\nFor:\nSignature:\nName:\nTitle:\nFax Number:\nE-mail Address:\nDate:\nCSI/Opto Circuits\n/s/ Joseph LaPorta\nJoseph LaPorta\nCOO\n262-798-5237\njoseph.laporta@csiusa.com\n6/25/10\nCONFIDENTIAL\nNDA-CSC Standard\nPage3of3
5440fd5a99de249f980bae3ef731c8ee.pdf	effective_date jurisdiction party term	EX-99.E .3 3 dex99e3.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(3)\nLOGO\nPRIVATE AND CONFIDENTIAL\nFebruary 23, 2011\nMerck Sharp & Dohme Corp.\nOne Merck Drive\nWhitehouse Station, NJ 08889-0100\nAttention: Richard Kender, Senior Vice President, Business Develop & Corporate Licensing\nLadies and Gentlemen:\nWe understand that Merck Sharp & Dohme Corp. (“you”) has requested information regarding Inspire Pharmaceuticals, Inc. (the “Company”)\nin connection with your consideration of a possible negotiated transaction between you and the Company pursuant to which you or one of your\ncontrolled or controlling affiliates would acquire the Company (a “Transaction”). The Company is prepared, subject to the terms and conditions of\nthis letter agreement (this “Agreement”), to furnish you with certain confidential and proprietary information concerning the Company on the terms\nset forth herein.\n1. As a condition to being furnished information by or on behalf of the Company, you and your Representatives (as defined below) shall treat\nin accordance with this Agreement all information (including, without limitation, oral, written, emails and all other electronic information)\nconcerning the Company or its Representatives that has been or may be furnished to you by or on behalf of the Company or any of its\nRepresentatives in connection with a possible Transaction, and all analyses, compilations, forecasts, studies, memoranda, notes, other materials and\nportions thereof prepared by you or any of your Representatives, or otherwise on your behalf, that contain, reflect or are based upon, in whole or in\npart, any such information, including, without limitation, any such materials stored in electronic format (collectively, the “Evaluation Material”). The\nterm “Evaluation Material” does not include information that (a) is or becomes generally available to the public other than as a result of a disclosure\nby you or any of your Representatives, (b) is or becomes available to you on a non-confidential basis from a source other than the Company or its\nRepresentatives, provided that such source is reasonably believed by you to not be bound by an obligation of confidentiality (whether by agreement,\nduty or otherwise) to the Company or its Representatives or (c) you can demonstrate was independently developed by you without reference to,\nincorporation of, or other use of any Evaluation Material or information from any source that is bound by an obligation of confidentiality (whether\nby agreement, duty or otherwise) to the Company or its Representatives. As used in this Agreement, the term “Representatives” means (i) when used\nin relation to the Company, the Company’s direct and indirect parent, subsidiaries and affiliates and its and their respective directors, officers,\nemployees, agents and advisors (including, without limitation, financial and legal advisors, consultants and accountants) and (ii) when used in\nrelation to you, your subsidiaries and affiliates and your and their respective directors, officers, members, general (but not limited) partners,\nemployees, agents, advisors (including, without limitation, financial and legal advisors, consultants and accountants) and any commercial bank or\nother person engaged by you to provide or arrange potential debt financing in connection with the Transaction (a “Potential Debt Source”). As used\nin this Agreement, the term “person” shall be broadly interpreted to include the media and any corporation, partnership, company, group,\ngovernmental entity, trust, natural person or other entity. As used in this Agreement, the term “affiliate” shall have the meaning ascribed to it in Rule\n12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).\n2. In consideration of being furnished Evaluation Material, you and your Representatives shall keep all Evaluation Material confidential, and\nyou and your Representatives shall not disclose Evaluation Material to any other person, provided that (a) you may disclose Evaluation Material as\nrequired by applicable law, regulation or legal process and (b) you may disclose Evaluation Material to any of your Representatives who need to\nknow such Evaluation Material for the sole purpose of evaluating a Transaction on your behalf if prior to any such disclosure (i) you advise such\nRepresentative of the confidential nature of the Evaluation Material and the terms of this Agreement, (ii) such Representative agrees with you to\nkeep the Evaluation Material confidential in accordance with the terms hereof and to observe the other terms of this Agreement and (iii) in the case\nof a Representative that is a Potential Debt Source, such Representative agrees in a writing to the Company to be bound by the terms of this\nAgreement to the same extent as if it were a party hereto. You and your Representatives shall not provide any Evaluation Material to any potential\nequity financing source or other co-investor without the Company’s prior written consent. In the event that the Company provides such consent with\nrespect to a potential equity financing source or other co-investor, neither you nor your Representatives shall provide any Evaluation Material to\nsuch person unless and until such person has executed and delivered to the Company a letter agreement that is substantially identical to this\nAgreement. You and your Representatives shall not enter into any agreement or arrangement with any potential equity financing source or other co-\ninvestor regarding the provision of equity financing or other co-investment, nor shall you or any of your Representatives enter into any discussions\nwith any such person regarding the provision of any equity financing or other co-investment, in each case without the prior written consent of the\nCompany. Evaluation Material shall be used by you and your Representatives solely for the purpose of evaluating a Transaction and shall not be\nused for any other purpose whatsoever. This Agreement shall apply to your Representatives as if they were direct parties hereto and you shall be\nresponsible for any breach of this Agreement by your Representatives, provided, that you shall not be responsible for any breach of this Agreement\nby any such Representative who has agreed in writing with the Company to be directly bound by the terms of this Agreement. Neither you nor any\nof your Representatives shall enter into any exclusivity, “lock-up”, “dry-up” or other agreement or arrangement, whether written or oral, with any\npotential debt financing source that does or could reasonably be expected to directly or indirectly limit, restrict, restrain or otherwise impair the\nability of such potential financing source to act as a financing source to any other person considering a transaction involving the Company.\n3. In addition, except as required by applicable law, regulation or legal process, neither you nor any of your Representatives shall disclose to\nany person (except, if and to the extent permitted by the immediately preceding paragraph, to your Representatives and any potential equity\nfinancing source or other co-investor) (a) that Evaluation Material has been requested by or furnished or made available to you or your\nRepresentatives, (b) the fact that this Agreement exists or the terms hereof, (c) that you are considering a Transaction, (d) that investigations,\ndiscussions or negotiations are taking place concerning a Transaction or (e) any of the terms, conditions or other facts or information with respect to\na Transaction or any other potential similar transaction involving the Company, including, without limitation, the status or termination thereof.\n4. In the event that you or any of your Representatives are required by applicable law, regulation or legal process (including, without\nlimitation, by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or other legal process) to\ndisclose any Evaluation Material or any information of the type described in the immediately preceding paragraph, you shall provide the Company\nwith prompt prior written notice of such requirement. You and your Representatives shall also, to the extent legally permissible, provide the\nCompany as promptly as practicable with a description of the information that may be required to be disclosed (and, if applicable, the text of the\ndisclosure itself) and reasonably cooperate (at Company’s expense) with the Company to the extent it may seek to limit such disclosure, including, if\nrequested, by taking all reasonable steps to resist or narrow any such disclosure or to obtain a protective order or other remedy with respect thereto.\nIf a protective order or other remedy is not obtained and disclosure is legally required, you and your applicable Representatives shall (a) disclose\nsuch information only to the extent required in the opinion of your or your applicable Representatives’ outside counsel and (b) give advance notice\nto the Company of the information to be actually disclosed as far in advance as is reasonably possible. In any such event, you and your applicable\nRepresentatives shall use reasonable efforts to ensure that all Evaluation Material\n2\nand all information of the type described in the immediately preceding paragraph that is so disclosed is accorded confidential treatment by the\nrecipient thereof.\n5. In the event that you determine not to proceed with a Transaction, you shall promptly inform the Company of that decision and, in that case\nor at any other time upon the request of the Company (in its sole discretion), you and your Representatives shall promptly deliver to the Company or\ndestroy, at your election, all Evaluation Material, including all notes relating thereto, without retaining any copy thereof. If requested by the\nCompany, you shall certify to the Company that all such material has been so delivered or destroyed in compliance herewith. Notwithstanding the\ndelivery or destruction of the Evaluation Material required by this paragraph, any and all duties and obligations existing under this Agreement shall\nremain in full force and effect. Notwithstanding the foregoing or any delivery or destruction of any Evaluation Material, your Representatives that\nare accounting firms may retain solely for compliance purposes copies of the Evaluation Material in their possession in accordance with policies and\nprocedures implemented by such persons in order to comply with applicable law, regulation or professional standards, provided, that any Evaluation\nMaterial so retained shall continue to be subject to the terms of this Agreement.\n6. You acknowledge that, in your and your Representatives’ examination of the Evaluation Material, you and your Representatives will have\naccess to material, non-public information, and that you are aware, and shall advise your Representatives who receive Evaluation Material or are\notherwise aware of the subject matter of this Agreement, that state and Federal laws, including, without limitation, Federal securities laws, impose\nrestrictions on the dissemination of such information and trading in securities when in possession of such information.\n7. For a period of 12 months from the date hereof, you shall not, nor shall you permit any of your Representatives to, directly or indirectly,\n(a) engage in any discussion regarding the Company or any of its affiliates with any supplier, vendor, customer or other person with whom the\nCompany has a relationship, other than in the ordinary course of your or your applicable Representative’s business consistent with past practice or\n(b) solicit for employment or hire any named officer or employee at the level of vice president or above of the Company or any of its subsidiaries or\naffiliates that you or any of your Representatives in connection with your consideration of a Transaction hereunder have discussions with or first\nobtain information with respect to, provided that this clause (b) shall not preclude you or any of your Representatives from hiring any such officer or\nemployee who (i) has had his or her employment terminated by the Company or any of its subsidiaries or affiliates prior to commencement of\nemployment discussions between you or your applicable Representative and such officer or employee, or (ii) responds to any general solicitation\nperformed by you or your applicable Representative that is not targeted at the Company or any of its subsidiaries or affiliates.\n8. Goldman Sachs & Co. (“Goldman”) shall have exclusive responsibility for arranging appropriate contacts for due diligence and other\npurposes regarding your consideration of a possible Transaction. Unless otherwise expressly agreed to in writing by the Company, all\ncommunications regarding a Transaction, requests for information concerning the Company or its subsidiaries or affiliates or a Transaction, notices\nunder this Agreement and questions regarding procedures in connection with a Transaction shall be submitted or directed exclusively to the\nrepresentatives of Goldman specifically identified to you by Goldman as contacts with respect to a Transaction. Under no circumstances shall you or\nany of your Representatives directly communicate with any director, officer or other employee of the Company or any of its subsidiaries or affiliates\nregarding any Evaluation Material or a Transaction or any other matter in connection therewith (other than during any management presentation, site\nvisit or other meeting or conference call pre-arranged through Goldman).\n9. Neither the Company nor any of its Representatives makes any representations or warranties, express or implied, with respect to the\naccuracy or completeness of the Evaluation Material, including, without limitation, any forecasts, projections or other forward-looking information\nincluded therein. You agree that, other than as may be set forth in any definitive agreement with respect to a Transaction, neither the Company nor its\nRepresentatives shall have any liability whatsoever to you or any of your Representatives, including, without limitation, in contract, tort or under\nFederal or state securities laws, relating to or resulting from the use of the\n3\nEvaluation Material by you or your Representatives or any errors therein or omissions therefrom. You and your Representatives are not entitled to\nrely on any Evaluation Material and only such express representations and warranties regarding Evaluation Material as may be made to you in a\ndefinitive written agreement relating to a Transaction, if any, shall have any legal effect, subject to the terms and conditions of such agreement.\n10. Each party agrees that no contract or agreement providing for a Transaction shall exist, directly or indirectly, unless and until a definitive\nwritten agreement with respect to a Transaction has been executed and delivered by both the Company and you or one of your affiliates. Each party\nalso agrees that unless and until a definitive written agreement with respect to a Transaction has been executed and delivered by the Company and\nyou or one of your affiliates, neither you nor the Company, nor any subsidiary or affiliate of the Company, shall be under any legal obligation of any\nkind whatsoever with respect to a Transaction by virtue of this Agreement (except for the matters specifically provided herein) or otherwise or by\nvirtue of any written or oral communications with respect to a Transaction by any of the Company’s or your Representatives. You agree that neither\nthe Company nor any of its Representatives shall be under any obligation to provide you with any Evaluation Material or to supplement or update\nany Evaluation Material previously provided. Nothing contained in this Agreement nor the furnishing of any Evaluation Material hereunder shall be\nconstrued as granting or conferring any rights by license or otherwise in any intellectual property. You further agree that the Company possesses the\nright to, and may, in its sole and absolute discretion and for any or no reason at all, reject any and all proposals made by you or your Representatives\nwith respect to a Transaction, terminate discussions and negotiations with you at any time, and conduct any process for a Transaction as it may\ndetermine (including, without limitation, negotiating with any other potentially interested person and entering into a definitive agreement with any\nother person without any prior notice to you or any of your Representatives).\n11. For a period of 18 months from the date hereof (the “Restricted Period”), unless you are specifically invited in writing in advance by the\nboard of directors or chief executive officer of the Company or Goldman on Company’s behalf, neither you nor any of your affiliates nor any other\nperson acting at your or your affiliates’ direct or indirect instruction shall, in any manner, directly or indirectly, (a) acquire, offer to acquire, agree to\nacquire or make a proposal to acquire, by purchase or otherwise, or borrow, any equity securities, or any direct or indirect rights, options or other\nderivative interests with respect to any equity securities, of the Company or any subsidiary of the Company or of any successor to or person in\ncontrol of the Company, or any assets or property of the Company or any subsidiary of the Company or of any such successor or controlling person\n(except that this restriction shall not apply to acquisitions by you or any benefit plan controlled by you of not more than one percent (in the\naggregate) of the then outstanding shares of a Company’s common stock); (b) make or in any way participate in any “solicitation” of “proxies” (as\nsuch terms are defined in Rule 14a-1 under the Exchange Act, and including any otherwise exempt solicitation pursuant to Rule 14a-2(b) under the\nExchange Act) to vote or deliver a written consent with respect to, or seek to advise or influence any person with respect to the voting of or\ndelivering a written consent with respect to, any voting securities of the Company or any of its subsidiaries (provided, that this clause (b) shall not\nprohibit the delivery by you or any of your Representatives of a revocable proxy or consent in response to a public proxy or consent solicitation\nmade generally to all holders of the Company’s equity securities pursuant to, and in accordance with, the applicable rules and regulations under the\nExchange Act); (c) make any public announcement with respect to, or publicly support, or solicit or submit a proposal for or offer of (with or without\nconditions) any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization, purchase of a material\nportion of the assets or properties of or other similar extraordinary transaction involving the Company or any of its subsidiaries or any of their\nrespective securities; (d) form, join or in any way participate in any “group” (within the meaning of Section 13(d) of the Exchange Act and the rules\nand regulations promulgated thereunder) with respect to any securities of the Company or otherwise in connection with any of the foregoing;\n(e) submit a proposal (including any precatory proposal) to be considered by the stockholders of the Company, or take any action to nominate any\nperson for membership on the board of directors of the Company, or take any action to remove any director from the board of directors of the\nCompany or to change the size or composition of the board of directors of the Company; (f) otherwise act, alone or in concert with others, to seek or\npropose to control or influence the management, board of directors or policies or affairs of the Company or any of its subsidiaries; (g) disclose any\nintention, plan,\n4\nproposal or arrangement inconsistent with any of the foregoing; (h) advise, assist, encourage or direct any other person to do any of the foregoing, or\nact as a financing source for or otherwise invest in any person in connection with such person doing any of the foregoing; (i) take any action that\ncould reasonably be expected to require the Company to make a public announcement regarding the possibility of a Transaction with you or any of\nyour affiliates or any of the other events described in this paragraph; or (j) take any action challenging the validity or enforceability of this paragraph,\nor request the Company amend or waive any provision of this paragraph (including this clause (j)), provided, that (i) you may make confidential\nrequests to the Company to amend or waive any of the limitations set forth in this paragraph, which the Company may accept or reject in its sole\ndiscretion, so long as any such request is made in a manner that does not reasonably require the public disclosure thereof by any person and (ii) your\nchairman or chief executive officer may communicate with the chairman and/or the chief executive officer of Company so long as such\ncommunication is made confidentially and any such request is made in a manner that does not reasonably require the public disclosure thereof by\nany person. Notwithstanding anything in this paragraph to the contrary, if a Fundamental Change Event (as defined below) occurs, you shall have the\nright to make one or more proposals to the Company regarding any of the matters in this paragraph, including, without limitation, to effect a\ntransaction pursuant to which you or your affiliates would acquire a majority of the outstanding voting securities of the Company or all or\nsubstantially all of the assets of the Company and its subsidiaries. A “Fundamental Change Event” means the entry by the Company into a binding\ndefinitive agreement with a third person to effect a purchase, tender or exchange offer, merger or other business combination that, if consummated,\nwould result in such third party owning at least a majority of the outstanding voting securities of the Company or all or substantially all of the assets\nof the Company and its subsidiaries (taken as a whole). You acknowledge that the Evaluation Material is being furnished to you and your\nRepresentatives, in part, in consideration of your agreements in this paragraph.\nThe Company represents to you that prior to the date of this Agreement, it has not entered into a confidentiality or similar agreement (taking into\neffect any waivers thereunder and amendments thereto) relating to a possible transaction with the Company as contemplated hereunder that contains\n(i) standstill provisions the duration of which are shorter than the Restricted Period, or (ii) a provision (such provision, a “Public Notice Release\nProvision”) that would permit the counterparty thereto to be released from its standstill obligations thereunder upon the Company announcing\npublicly (other than in connection with the execution of a definitive merger or similar acquisition agreement) that it is seeking purchasers for a\nmajority of its outstanding voting securities or all or substantially all of its and its subsidiaries’ assets. The Company covenants and agrees that if it\nshall hereafter enter into a confidentiality or similar agreement (taking into effect any waivers thereunder and amendments thereto) relating to a\ntransaction with the Company as contemplated hereunder that contains standstill provisions the duration of which are shorter than the Restricted\nPeriod or which contains a Public Notice Release Provision, the Company shall (A) provide written notice thereof to you, (B) agree to reduce the\nduration of the Restricted Period so that it is no longer than the duration of such shorter standstill period, and (C) agree to amend this Agreement to\ninclude a Public Notice Release Provision on terms substantially similar to those set forth in such other confidentiality or similar agreement.\n12. You recognize and acknowledge the competitive value and confidential nature of the Evaluation Material and that the Company and its\naffiliates and its and their subsidiaries would be irreparably harmed if information contained therein or derived therefrom is disclosed to any person\nor used for any purpose, in each case in material breach by you or your Representatives of the terms of this Agreement, or any other material breach\nby you or your Representatives of this Agreement shall otherwise occur. You further understand and agree that monetary remedies would be\ninadequate to protect the Company and its affiliates and its and their subsidiaries against any actual or threatened material breach of this Agreement\nby you or your Representatives, and that Company shall be entitled to an injunction or injunctions to prevent material breaches or threatened\nmaterial breaches by you or your Representatives of this Agreement and to compel specific performance of this Agreement. Such remedies shall not\nbe the exclusive remedy for actual or threatened breaches of this Agreement but shall be in addition to all other remedies available at law or in equity\nto the Company and its affiliates and their respective subsidiaries. No failure or delay by any party hereto in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or\n5\nfurther exercise thereof or the exercise of any other right, power or privilege hereunder. Notwithstanding anything to the contrary in this paragraph,\nCompany agrees and acknowledges that you and your Representatives do not waive the right to contest, and shall not be prohibited from contesting,\nwhether there has been a material breach by you or your Representatives of this Agreement.\n13. If any provision contained in this Agreement or the application thereof to you, the Company, or any other person or circumstance shall be\ninvalid, illegal or unenforceable in any respect under any applicable law as determined by a court of competent jurisdiction, the validity, legality and\nenforceability of the remaining provisions contained in this Agreement, or the application of such provision to such persons or circumstances other\nthan those as to which it has been held invalid, illegal or unenforceable, shall remain in full force and effect and shall in no way be affected, impaired\nor invalidated thereby. In the case of any such determination of invalidity, illegality or unenforceability, the parties hereto shall negotiate in good\nfaith in an effort to agree upon a suitable and equitable substitute provision to effect the original intent of the parties.\n14. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to the\nprinciples of conflict of laws thereof that would require the application of the laws of any other jurisdiction. Each party irrevocably submits, on\nbehalf of itself and its Representatives, to the exclusive jurisdiction of the Chancery Court of the State of Delaware (the “Chancery Court”), or,\nsolely to the extent the Chancery Court does not have subject matter jurisdiction, the exclusive jurisdiction of the other state or federal court located\nin the State of Delaware (such courts together with the Chancery Court, the “Chosen Courts”), for the purposes of any suit, action or other\nproceeding arising out of this Agreement or a Transaction. Each party irrevocably and unconditionally waives, on behalf of itself and its\nRepresentatives, and agrees not to plead or claim, any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement\nor a Transaction in the Chosen Courts or that any such action, suit or proceeding brought in any such Chosen Court has been brought in an\ninconvenient forum. Each party irrevocably agrees, on behalf of itself and its Representatives, that service of any process, summons, notice or\ndocument by U.S . registered mail to the address set forth in the heading of this Agreement shall be effective service of process for any action, suit or\nproceeding brought against such party or any of its Representatives.\n15. This Agreement contains the entire agreement between the parties concerning the subject matter hereof, and no modification of this\nAgreement or waiver of the terms and conditions hereof shall be binding upon either party, unless approved in writing by each party. This Agreement\nshall inure to the benefit of the parties hereto, and their successors and permitted assigns. Any assignment of this Agreement by either party without\nthe prior written consent of the other shall be void.\n16. The obligations of the parties under this Agreement shall terminate and be of no further force and effect two years from the date hereof,\nprovided that such termination shall not relieve any party from liability for any breach of this Agreement prior to such termination.\n17. This Agreement may be executed in counterparts (including, without limitation, via facsimile or other electronic image scan), each of\nwhich shall be deemed to be an original, but both of which shall constitute one and the same agreement and shall become effective when one or more\ncounterparts have been signed by each of the parties and delivered to the other party.\n[remainder of page intentionally left blank; signature page follows]\n6\nIf the foregoing correctly sets forth the agreement between you and the Company, please sign and return a copy of this signature page,\nwhereupon this Agreement shall become our binding agreement.\nVery truly yours,\nINSPIRE PHARMACEUTICALS, INC.,\nBy /s/ Adrian Adams\nName: Adrian Adams\nTitle: President & CEO\nAGREED AND ACKNOWLEDGED\nas of the date first written above\nMERCK SHARP & DOHME CORP.\nBy /s/ Richard N. Kender\nName: Richard N. Kender\nTitle: Senior Vice President,\nBusiness Development & Corporate\nLicensing\n7	EX-99.E.3 3 dex99e3.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(3)\n».LOGO\nPRIVATE AND CONFIDENTIAL\nFebruary 23, 2011\nMerck Sharp & Dohme Corp.\nOne Merck Drive\nWhitehouse Station, NJ 08889-0100\nAttention: Richard Kender, Senior Vice President, Business Develop & Corporate Licensing\nLadies and Gentlemen:\nWe understand that Merck Sharp & Dohme Corp. (“you”) has requested information regarding Inspire Pharmaceuticals, Inc. (the “Company ™)\nin connection with your consideration of a possible negotiated transaction between you and the Company pursuant to which you or one of your\ncontrolled or controlling affiliates would acquire the Company (a “Transaction”). The Company is prepared, subject to the terms and conditions of\nthis letter agreement (this “Agreement”), to furnish you with certain confidential and proprietary information concerning the Company on the terms\nset forth herein.\n \n1. As a condition to being furnished information by or on behalf of the Company, you and your Representatives (as defined below) shall treat\nin accordance with this Agreement all information (including, without limitation, oral, written, emails and all other electronic information)\nconcerning the Company or its Representatives that has been or may be furnished to you by or on behalf of the Company or any of its\nRepresentatives in connection with a possible Transaction, and all analyses, compilations, forecasts, studies, memoranda, notes, other materials and\nportions thereof prepared by you or any of your Representatives, or otherwise on your behalf, that contain, reflect or are based upon, in whole or in\npart, any such information, including, without limitation, any such materials stored in electronic format (collectively, the “Evaluation Material”). The\nterm “Evaluation Material” does not include information that (a) is or becomes generally available to the public other than as a result of a disclosure\nby you or any of your Representatives, (b) is or becomes available to you on a non-confidential basis from a source other than the Company or its\nRepresentatives, provided that such source is reasonably believed by you to not be bound by an obligation of confidentiality (whether by agreement,\nduty or otherwise) to the Company or its Representatives or (c) you can demonstrate was independently developed by you without reference to,\nincorporation of, or other use of any Evaluation Material or information from any source that is bound by an obligation of confidentiality (whether\nby agreement, duty or otherwise) to the Company or its Representatives. As used in this Agreement, the term “Representatives” means (i) when used\nin relation to the Company, the Company’s direct and indirect parent, subsidiaries and affiliates and its and their respective directors, officers,\nemployees, agents and advisors (including, without limitation, financial and legal advisors, consultants and accountants) and (ii) when used in\nrelation to you, your subsidiaries and affiliates and your and their respective directors, officers, members, general (but not limited) partners,\nemployees, agents, advisors (including, without limitation, financial and legal advisors, consultants and accountants) and any commercial bank or\nother person engaged by you to provide or arrange potential debt financing in connection with the Transaction (a “Potential Debt Source”). As used\nin this Agreement, the term “person” shall be broadly interpreted to include the media and any corporation, partnership, company, group,\ngovernmental entity, trust, natural person or other entity. As used in this Agreement, the term “affiliate” shall have the meaning ascribed to it in Rule\n12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).\n \n \n \n2. In consideration of being furnished Evaluation Material, you and your Representatives shall keep all Evaluation Material confidential, and\nyou and your Representatives shall not disclose Evaluation Material to any other person, provided that (a) you may disclose Evaluation Material as\nrequired by applicable law, regulation or legal process and (b) you may disclose Evaluation Material to any of your Representatives who need to\nknow such Evaluation Material for the sole purpose of evaluating a Transaction on your behalf if prior to any such disclosure (i) you advise such\nRepresentative of the confidential nature of the Evaluation Material and the terms of this Agreement, (ii) such Representative agrees with you to\nkeep the Evaluation Material confidential in accordance with the terms hereof and to observe the other terms of this Agreement and (iii) in the case\nof a Representative that is a Potential Debt Source, such Representative agrees in a writing to the Company to be bound by the terms of this\nAgreement to the same extent as if it were a party hereto. You and your Representatives shall not provide any Evaluation Material to any potential\nequity financing source or other co-investor without the Company’s prior written consent. In the event that the Company provides such consent with\nrespect to a potential equity financing source or other co-investor, neither you nor your Representatives shall provide any Evaluation Material to\nsuch person unless and until such person has executed and delivered to the Company a letter agreement that is substantially identical to this\nAgreement. You and your Representatives shall not enter into any agreement or arrangement with any potential equity financing source or other co-\ninvestor regarding the provision of equity financing or other co-investment, nor shall you or any of your Representatives enter into any discussions\nwith any such person regarding the provision of any equity financing or other co-investment, in each case without the prior written consent of the\nCompany. Evaluation Material shall be used by you and your Representatives solely for the purpose of evaluating a Transaction and shall not be\nused for any other purpose whatsoever. This Agreement shall apply to your Representatives as if they were direct parties hereto and you shall be\nresponsible for any breach of this Agreement by your Representatives, provided, that you shall not be responsible for any breach of this Agreement\nby any such Representative who has agreed in writing with the Company to be directly bound by the terms of this Agreement. Neither you nor any\nof your Representatives shall enter into any exclusivity, “lock-up”, “dry-up” or other agreement or arrangement, whether written or oral, with any\npotential debt financing source that does or could reasonably be expected to directly or indirectly limit, restrict, restrain or otherwise impair the\nability of such potential financing source to act as a financing source to any other person considering a transaction involving the Company.\n3. In addition, except as required by applicable law, regulation or legal process, neither you nor any of your Representatives shall disclose to\nany person (except, if and to the extent permitted by the immediately preceding paragraph, to your Representatives and any potential equity\nfinancing source or other co-investor) (a) that Evaluation Material has been requested by or furnished or made available to you or your\nRepresentatives, (b) the fact that this Agreement exists or the terms hereof, (c) that you are considering a Transaction, (d) that investigations,\ndiscussions or negotiations are taking place concerning a Transaction or (e) any of the terms, conditions or other facts or information with respect to\na Transaction or any other potential similar transaction involving the Company, including, without limitation, the status or termination thereof.\n4. In the event that you or any of your Representatives are required by applicable law, regulation or legal process (including, without\nlimitation, by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or other legal process) to\ndisclose any Evaluation Material or any information of the type described in the immediately preceding paragraph, you shall provide the Company\nwith prompt prior written notice of such requirement. You and your Representatives shall also, to the extent legally permissible, provide the\nCompany as promptly as practicable with a description of the information that may be required to be disclosed (and, if applicable, the text of the\ndisclosure itself) and reasonably cooperate (at Company’s expense) with the Company to the extent it may seek to limit such disclosure, including, if\nrequested, by taking all reasonable steps to resist or narrow any such disclosure or to obtain a protective order or other remedy with respect thereto.\nIf a protective order or other remedy is not obtained and disclosure is legally required, you and your applicable Representatives shall (a) disclose\nsuch information only to the extent required in the opinion of your or your applicable Representatives’ outside counsel and (b) give advance notice\nto the Company of the information to be actually disclosed as far in advance as is reasonably possible. In any such event, you and your applicable\nRepresentatives shall use reasonable efforts to ensure that all Evaluation Material\n2\nand all information of the type described in the immediately preceding paragraph that is so disclosed is accorded confidential treatment by the\nrecipient thereof.\n5. In the event that you determine not to proceed with a Transaction, you shall promptly inform the Company of that decision and, in that case\nor at any other time upon the request of the Company (in its sole discretion), you and your Representatives shall promptly deliver to the Company or\ndestroy, at your election, all Evaluation Material, including all notes relating thereto, without retaining any copy thereof. If requested by the\nCompany, you shall certify to the Company that all such material has been so delivered or destroyed in compliance herewith. Notwithstanding the\ndelivery or destruction of the Evaluation Material required by this paragraph, any and all duties and obligations existing under this Agreement shall\nremain in full force and effect. Notwithstanding the foregoing or any delivery or destruction of any Evaluation Material, your Representatives that\nare accounting firms may retain solely for compliance purposes copies of the Evaluation Material in their possession in accordance with policies and\nprocedures implemented by such persons in order to comply with applicable law, regulation or professional standards, provided, that any Evaluation\nMaterial so retained shall continue to be subject to the terms of this Agreement.\n6. You acknowledge that, in your and your Representatives’ examination of the Evaluation Material, you and your Representatives will have\naccess to material, non-public information, and that you are aware, and shall advise your Representatives who receive Evaluation Material or are\notherwise aware of the subject matter of this Agreement, that state and Federal laws, including, without limitation, Federal securities laws, impose\nrestrictions on the dissemination of such information and trading in securities when in possession of such information.\n7. For a period of 12 months from the date hereof, you shall not, nor shall you permit any of your Representatives to, directly or indirectly,\n(a) engage in any discussion regarding the Company or any of its affiliates with any supplier, vendor, customer or other person with whom the\nCompany has a relationship, other than in the ordinary course of your or your applicable Representative’s business consistent with past practice or\n(b) solicit for employment or hire any named officer or employee at the level of vice president or above of the Company or any of its subsidiaries or\naffiliates that you or any of your Representatives in connection with your consideration of a Transaction hereunder have discussions with or first\nobtain information with respect to, provided that this clause (b) shall not preclude you or any of your Representatives from hiring any such officer or\nemployee who (i) has had his or her employment terminated by the Company or any of its subsidiaries or affiliates prior to commencement of\nemployment discussions between you or your applicable Representative and such officer or employee, or (ii) responds to any general solicitation\nperformed by you or your applicable Representative that is not targeted at the Company or any of its subsidiaries or affiliates.\n8. Goldman Sachs & Co. (“Goldman”) shall have exclusive responsibility for arranging appropriate contacts for due diligence and other\npurposes regarding your consideration of a possible Transaction. Unless otherwise expressly agreed to in writing by the Company, all\ncommunications regarding a Transaction, requests for information concerning the Company or its subsidiaries or affiliates or a Transaction, notices\nunder this Agreement and questions regarding procedures in connection with a Transaction shall be submitted or directed exclusively to the\nrepresentatives of Goldman specifically identified to you by Goldman as contacts with respect to a Transaction. Under no circumstances shall you or\nany of your Representatives directly communicate with any director, officer or other employee of the Company or any of its subsidiaries or affiliates\nregarding any Evaluation Material or a Transaction or any other matter in connection therewith (other than during any management presentation, site\nvisit or other meeting or conference call pre-arranged through Goldman).\n9. Neither the Company nor any of its Representatives makes any representations or warranties, express or implied, with respect to the\naccuracy or completeness of the Evaluation Material, including, without limitation, any forecasts, projections or other forward-looking information\nincluded therein. You agree that, other than as may be set forth in any definitive agreement with respect to a Transaction, neither the Company nor its\nRepresentatives shall have any liability whatsoever to you or any of your Representatives, including, without limitation, in contract, tort or under\nFederal or state securities laws, relating to or resulting from the use of the\n3\nEvaluation Material by you or your Representatives or any errors therein or omissions therefrom. You and your Representatives are not entitled to\nrely on any Evaluation Material and only such express representations and warranties regarding Evaluation Material as may be made to you in a\ndefinitive written agreement relating to a Transaction, if any, shall have any legal effect, subject to the terms and conditions of such agreement.\n10. Each party agrees that no contract or agreement providing for a Transaction shall exist, directly or indirectly, unless and until a definitive\nwritten agreement with respect to a Transaction has been executed and delivered by both the Company and you or one of your affiliates. Each party\nalso agrees that unless and until a definitive written agreement with respect to a Transaction has been executed and delivered by the Company and\nyou or one of your affiliates, neither you nor the Company, nor any subsidiary or affiliate of the Company, shall be under any legal obligation of any\nkind whatsoever with respect to a Transaction by virtue of this Agreement (except for the matters specifically provided herein) or otherwise or by\nvirtue of any written or oral communications with respect to a Transaction by any of the Company’s or your Representatives. You agree that neither\nthe Company nor any of its Representatives shall be under any obligation to provide you with any Evaluation Material or to supplement or update\nany Evaluation Material previously provided. Nothing contained in this Agreement nor the furnishing of any Evaluation Material hereunder shall be\nconstrued as granting or conferring any rights by license or otherwise in any intellectual property. You further agree that the Company possesses the\nright to, and may, in its sole and absolute discretion and for any or no reason at all, reject any and all proposals made by you or your Representatives\nwith respect to a Transaction, terminate discussions and negotiations with you at any time, and conduct any process for a Transaction as it may\ndetermine (including, without limitation, negotiating with any other potentially interested person and entering into a definitive agreement with any\nother person without any prior notice to you or any of your Representatives).\n11. For a period of 18 months from the date hereof (the “Restricted Period”), unless you are specifically invited in writing in advance by the\nboard of directors or chief executive officer of the Company or Goldman on Company’s behalf, neither you nor any of your affiliates nor any other\nperson acting at your or your affiliates’ direct or indirect instruction shall, in any manner, directly or indirectly, (a) acquire, offer to acquire, agree to\nacquire or make a proposal to acquire, by purchase or otherwise, or borrow, any equity securities, or any direct or indirect rights, options or other\nderivative interests with respect to any equity securities, of the Company or any subsidiary of the Company or of any successor to or person in\ncontrol of the Company, or any assets or property of the Company or any subsidiary of the Company or of any such successor or controlling person\n(except that this restriction shall not apply to acquisitions by you or any benefit plan controlled by you of not more than one percent (in the\naggregate) of the then outstanding shares of a Company’s common stock); (b) make or in any way participate in any “solicitation” of “proxies” (as\nsuch terms are defined in Rule 14a-1 under the Exchange Act, and including any otherwise exempt solicitation pursuant to Rule 14a-2(b) under the\nExchange Act) to vote or deliver a written consent with respect to, or seek to advise or influence any person with respect to the voting of or\ndelivering a written consent with respect to, any voting securities of the Company or any of its subsidiaries (provided, that this clause (b) shall not\nprohibit the delivery by you or any of your Representatives of a revocable proxy or consent in response to a public proxy or consent solicitation\nmade generally to all holders of the Company’s equity securities pursuant to, and in accordance with, the applicable rules and regulations under the\nExchange Act); (c) make any public announcement with respect to, or publicly support, or solicit or submit a proposal for or offer of (with or without\nconditions) any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization, purchase of a material\nportion of the assets or properties of or other similar extraordinary transaction involving the Company or any of its subsidiaries or any of their\nrespective securities; (d) form, join or in any way participate in any “group” (within the meaning of Section 13(d) of the Exchange Act and the rules\nand regulations promulgated thereunder) with respect to any securities of the Company or otherwise in connection with any of the foregoing;\n(e) submit a proposal (including any precatory proposal) to be considered by the stockholders of the Company, or take any action to nominate any\nperson for membership on the board of directors of the Company, or take any action to remove any director from the board of directors of the\nCompany or to change the size or composition of the board of directors of the Company; (f) otherwise act, alone or in concert with others, to seek or\npropose to control or influence the management, board of directors or policies or affairs of the Company or any of its subsidiaries; (g) disclose any\nintention, plan,\nproposal or arrangement inconsistent with any of the foregoing; (h) advise, assist, encourage or direct any other person to do any of the foregoing, or\nact as a financing source for or otherwise invest in any person in connection with such person doing any of the foregoing; (i) take any action that\ncould reasonably be expected to require the Company to make a public announcement regarding the possibility of a Transaction with you or any of\nyour affiliates or any of the other events described in this paragraph; or (j) take any action challenging the validity or enforceability of this paragraph,\nor request the Company amend or waive any provision of this paragraph (including this clause (j)), provided, that (i) you may make confidential\nrequests to the Company to amend or waive any of the limitations set forth in this paragraph, which the Company may accept or reject in its sole\ndiscretion, so long as any such request is made in a manner that does not reasonably require the public disclosure thereof by any person and (ii) your\nchairman or chief executive officer may communicate with the chairman and/or the chief executive officer of Company so long as such\ncommunication is made confidentially and any such request is made in a manner that does not reasonably require the public disclosure thereof by\nany person. Notwithstanding anything in this paragraph to the contrary, if a Fundamental Change Event (as defined below) occurs, you shall have the\nright to make one or more proposals to the Company regarding any of the matters in this paragraph, including, without limitation, to effect a\ntransaction pursuant to which you or your affiliates would acquire a majority of the outstanding voting securities of the Company or all or\nsubstantially all of the assets of the Company and its subsidiaries. A “Fundamental Change Event” means the entry by the Company into a binding\ndefinitive agreement with a third person to effect a purchase, tender or exchange offer, merger or other business combination that, if consummated,\nwould result in such third party owning at least a majority of the outstanding voting securities of the Company or all or substantially all of the assets\nof the Company and its subsidiaries (taken as a whole). You acknowledge that the Evaluation Material is being furnished to you and your\nRepresentatives, in part, in consideration of your agreements in this paragraph.\n \nThe Company represents to you that prior to the date of this Agreement, it has not entered into a confidentiality or similar agreement (taking into\neffect any waivers thereunder and amendments thereto) relating to a possible transaction with the Company as contemplated hereunder that contains\n(i) standstill provisions the duration of which are shorter than the Restricted Period, or (ii) a provision (such provision, a “Public Notice Release\nProvision”) that would permit the counterparty thereto to be released from its standstill obligations thereunder upon the Company announcing\npublicly (other than in connection with the execution of a definitive merger or similar acquisition agreement) that it is seeking purchasers for a\nmajority of its outstanding voting securities or all or substantially all of its and its subsidiaries’ assets. The Company covenants and agrees that if it\nshall hereafter enter into a confidentiality or similar agreement (taking into effect any waivers thereunder and amendments thereto) relating to a\ntransaction with the Company as contemplated hereunder that contains standstill provisions the duration of which are shorter than the Restricted\nPeriod or which contains a Public Notice Release Provision, the Company shall (A) provide written notice thereof to you, (B) agree to reduce the\nduration of the Restricted Period so that it is no longer than the duration of such shorter standstill period, and (C) agree to amend this Agreement to\ninclude a Public Notice Release Provision on terms substantially similar to those set forth in such other confidentiality or similar agreement.\n12. You recognize and acknowledge the competitive value and confidential nature of the Evaluation Material and that the Company and its\naffiliates and its and their subsidiaries would be irreparably harmed if information contained therein or derived therefrom is disclosed to any person\nor used for any purpose, in each case in material breach by you or your Representatives of the terms of this Agreement, or any other material breach\nby you or your Representatives of this Agreement shall otherwise occur. You further understand and agree that monetary remedies would be\ninadequate to protect the Company and its affiliates and its and their subsidiaries against any actual or threatened material breach of this Agreement\nby you or your Representatives, and that Company shall be entitled to an injunction or injunctions to prevent material breaches or threatened\nmaterial breaches by you or your Representatives of this Agreement and to compel specific performance of this Agreement. Such remedies shall not\nbe the exclusive remedy for actual or threatened breaches of this Agreement but shall be in addition to all other remedies available at law or in equity\nto the Company and its affiliates and their respective subsidiaries. No failure or delay by any party hereto in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or\n5\nfurther exercise thereof or the exercise of any other right, power or privilege hereunder. Notwithstanding anything to the contrary in this paragraph,\nCompany agrees and acknowledges that you and your Representatives do not waive the right to contest, and shall not be prohibited from contesting,\nwhether there has been a material breach by you or your Representatives of this Agreement.\n13. If any provision contained in this Agreement or the application thereof to you, the Company, or any other person or circumstance shall be\ninvalid, illegal or unenforceable in any respect under any applicable law as determined by a court of competent jurisdiction, the validity, legality and\nenforceability of the remaining provisions contained in this Agreement, or the application of such provision to such persons or circumstances other\nthan those as to which it has been held invalid, illegal or unenforceable, shall remain in full force and effect and shall in no way be affected, impaired\nor invalidated thereby. In the case of any such determination of invalidity, illegality or unenforceability, the parties hereto shall negotiate in good\nfaith in an effort to agree upon a suitable and equitable substitute provision to effect the original intent of the parties.\n14. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to the\nprinciples of conflict of laws thereof that would require the application of the laws of any other jurisdiction. Each party irrevocably submits, on\nbehalf of itself and its Representatives, to the exclusive jurisdiction of the Chancery Court of the State of Delaware (the “Chancery Court”), or,\nsolely to the extent the Chancery Court does not have subject matter jurisdiction, the exclusive jurisdiction of the other state or federal court located\nin the State of Delaware (such courts together with the Chancery Court, the “Chosen Courts), for the purposes of any suit, action or other\nproceeding arising out of this Agreement or a Transaction. Each party irrevocably and unconditionally waives, on behalf of itself and its\nRepresentatives, and agrees not to plead or claim, any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement\nor a Transaction in the Chosen Courts or that any such action, suit or proceeding brought in any such Chosen Court has been brought in an\ninconvenient forum. Each party irrevocably agrees, on behalf of itself and its Representatives, that service of any process, summons, notice or\ndocument by U.S. registered mail to the address set forth in the heading of this Agreement shall be effective service of process for any action, suit or\nproceeding brought against such party or any of its Representatives.\n15. This Agreement contains the entire agreement between the parties concerning the subject matter hereof, and no modification of this\nAgreement or waiver of the terms and conditions hereof shall be binding upon either party, unless approved in writing by each party. This Agreement\nshall inure to the benefit of the parties hereto, and their successors and permitted assigns. Any assignment of this Agreement by either party without\nthe prior written consent of the other shall be void.\n16. The obligations of the parties under this Agreement shall terminate and be of no further force and effect two years from the date hereof,\nprovided that such termination shall not relieve any party from liability for any breach of this Agreement prior to such termination.\n17. This Agreement may be executed in counterparts (including, without limitation, via facsimile or other electronic image scan), each of\nwhich shall be deemed to be an original, but both of which shall constitute one and the same agreement and shall become effective when one or more\ncounterparts have been signed by each of the parties and delivered to the other party.\n[remainder of page intentionally left blank; signature page follows]\n6\nIf the foregoing correctly sets forth the agreement between you and the Company, please sign and return a copy of this signature page,\nwhereupon this Agreement shall become our binding agreement.\nVery truly yours,\nINSPIRE PHARMACEUTICALS, INC,,\nBy /s/ Adrian Adams\nName: Adrian Adams\nTitle: President & CEO\nAGREED AND ACKNOWLEDGED\nas of the date first written above\nMERCK SHARP & DOHME CORP.\nBy /s/ Richard N. Kender\nName: Richard N. Kender\nTitle:  Senior Vice President,\nBusiness Development & Corporate\nLicensing	EX-99.E.3 3 dex99e3.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(3)\nALOGO\nPRIVATE AND CONFIDENTIAL\nFebruary 23, 2011\nMerck Sharp & Dohme Corp.\nOne Merck Drive\nWhitehouse Station, NJ 08889-0100\nAttention: Richard Kender, Senior Vice President, Business Develop & Corporate Licensing\nLadies and Gentlemen:\nWe understand that Merck Sharp & Dohme Corp. ("you") has requested information regarding Inspire Pharmaceuticals, Inc. (the "Company.")\nin connection with your consideration of a possible negotiated transaction between you and the Company pursuant to which you or one of your\ncontrolled or controlling affiliates would acquire the Company (a "Transaction"). The Company is prepared, subject to the terms and conditions of\nthis letter agreement (this "Agreement"), to furnish you with certain confidential and proprietary information concerning the Company on the terms\nset forth herein.\n1. As a condition to being furnished information by or on behalf of the Company, you and your Representatives (as defined below) shall treat\nin\naccordance with this Agreement all information (including, without limitation, oral, written, emails and all other electronic information)\nconcerning the Company or its Representatives that has been or may be furnished to you by or on behalf of the Company or any of its\nRepresentatives in connection with a possible Transaction, and all analyses, compilations, forecasts, studies, memoranda, notes, other materials and\nportions thereof prepared by you or any of your Representatives, or otherwise on your behalf, that contain, reflect or are based upon, in whole or in\npart, any such information, including, without limitation, any such materials stored in electronic format (collectively, the "Evaluation Material") The\nterm "Evaluation Material" does not include information that (a) is or becomes generally available to the public other than as a result of a disclosure\nby you or any of your Representatives, (b) is or becomes available to you on a non-confidential basis from a source other than the Company or its\nRepresentatives, provided that such source is reasonably believed by you to not be bound by an obligation of confidentiality (whether by agreement,\nduty or otherwise) to the Company or its Representatives or (c) you can demonstrate was independently developed by you without reference to,\nincorporation of, or other use of any Evaluation Material or information from any source that is bound by an obligation of confidentiality (whether\nby agreement, duty or otherwise) to the Company or its Representatives. As used in this Agreement, the term "Representatives" means (i) when used\nin relation to the Company, the Company's direct and indirect parent, subsidiaries and affiliates and its and their respective directors, officers,\nemployees, agents and advisors (including, without limitation financial and legal advisors, consultants and accountants) and (ii) when used\nin\nrelation to you, your subsidiaries and affiliates and your and their respective directors, officers, members, general (but not limited) partners,\nemployees, agents, advisors (including, without limitation, financial and legal advisors, consultants and accountants) and any commercial bank or\nother person engaged by you to provide or arrange potential debt financing in connection with the Transaction (a "Potential Debt Source"). As used\nin this Agreement, the term "person" shall be broadly interpreted to include the media and any corporation, partnership, company, group,\ngovernmental entity, trust, natural person or other entity. As used in this Agreement, the term "affiliate" shall have the meaning ascribed to it in Rule\n12b-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Ac\n2. In consideration of being furnished Evaluation Material, you and your Representatives shall keep all Evaluation Material confidential, and\nyou and your Representatives shall not disclose Evaluation Material to any other person, provided that (a) you may disclose Evaluation Material\nas\nrequired by applicable law, regulation or legal process and (b) you may disclose Evaluation Material to any of your Representatives who need to\nknow such Evaluation Material for the sole purpose of evaluating a Transaction on your behalf if prior to any such disclosure (i) you advise such\nRepresentative of the confidential nature of the Evaluation Material and the terms of this Agreement, (ii) such Representative agrees with you to\nkeep the Evaluation Material confidential in accordance with the terms hereof and to observe the other terms of this Agreement and (iii) in the case\nof a Representative that is a Potential Debt Source, such Representative agrees in a writing to the Company to be bound by the terms of this\nAgreement to the same extent as if it were a party hereto. You and your Representatives shall not provide any Evaluation Material to any potential\nequity financing source or other co-investor without the Company's prior written consent. In the event that the Company provides such consent with\nrespect to a potential equity financing source or other co-investor, neither you nor your Representatives shall provide any Evaluation Material to\nsuch person unless and until such person has executed and delivered to the Company a letter agreement that is substantially identical to this\nAgreement. You and your Representatives shall not enter into any agreement or arrangement with any potential equity financing source or other co-\ninvestor regarding the provision of equity financing or other co-investment, nor shall you or any of your Representatives enter into any discussions\nwith any such person regarding the provision of any equity financing or other co-investment, in each case without the prior written consent of the\nCompany. Evaluation Material shall be used by you and your Representatives solely for the purpose of evaluating a Transaction and shall not be\nused for any other purpose whatsoever. This Agreement shall apply to your Representatives as if they were direct parties hereto and you shall\nbe\nresponsible\nfor\nany\nbreach of this Agreement by your Representatives, provided, that you shall not be responsible for any breach of this Agreement\nby any such Representative who has agreed in writing with the Company to be directly bound by the terms of this Agreement. Neither you nor any\nof your Representatives shall enter into any exclusivity, "lock-up", "dry-up" or other agreement or arrangement, whether written or oral, with any\npotential debt financing source that does or could reasonably be expected to directly or indirectly limit, restrict, restrain or otherwise impair the\nability of such potential financing source to act as a financing source to any other person considering a transaction involving the Company.\n3. In addition, except as required by applicable law, regulation or legal process, neither you nor any of your Representatives shall disclose to\nany person (except, if and to the extent permitted by the immediately preceding paragraph, to your Representatives and any potential equity\nfinancing source or other co-investor) (a) that Evaluation Material has been requested by or furnished or made available to you or your\nRepresentatives, (b) the fact that this Agreement exists or the terms hereof, (c) that you are considering a Transaction, (d) that investigations,\ndiscussions or negotiations are taking place concerning a Transaction or (e) any of the terms, conditions or other facts or information with respect\nto\na Transaction or any other potential similar transaction involving the Company, including, without limitation, the status or termination thereof.\n4. In the event that you or any of your Representatives are required by applicable law, regulation or legal process (including, without\nlimitation, by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or other legal process)\nto\ndisclose any Evaluation Material or any information of the type described in the immediately preceding paragraph, you shall provide the Company\nwith prompt prior written notice of such requirement. You and your Representatives shall also, to the extent legally permissible, provide the\nCompany as promptly as practicable with a description of the information that may be required to be disclosed (and, if applicable, the text of\nthe\ndisclosure itself) and reasonably cooperate (at Company's expense) with the Company to the extent it may seek to limit such disclosure, including, if\nrequested, by taking all reasonable steps to resist or narrow any such disclosure or to obtain a protective order or other remedy with respect thereto.\nIf a protective order or other remedy is not obtained and disclosure is legally required, you and your applicable Representatives shall (a) disclose\nsuch information only to the extent required in the opinion of your or your applicable Representatives' outside counsel and (b) give advance notice\nto the Company of the information to be actually disclosed as far in advance as is reasonably possible. In any such event, you and your applicable\nRepresentatives shall use reasonable efforts to ensure that all Evaluation Material\n2\nand all information of the type described in the immediately preceding paragraph that is so disclosed is accorded confidential treatment by\nthe\nrecipient thereof.\n5. In the event that you determine not to proceed with a Transaction, you shall promptly inform the Company of that decision and, in that case\nor at any other time upon the request of the Company (in its sole discretion), you and your Representatives shall promptly deliver to the Company or\ndestroy, at your election, all Evaluation Material, including all notes relating thereto, without retaining any copy thereof. If requested by the\nCompany, you shall certify to the Company that all such material has been so delivered or destroyed in compliance herewith. Notwithstanding the\ndelivery or destruction of the Evaluation Material required by this paragraph, any and all duties and obligations existing under this Agreement shall\nremain in full force and effect. Notwithstanding the foregoing or any delivery or destruction of any Evaluation Material, your Representatives that\nare accounting firms may retain solely for compliance purposes copies of the Evaluation Material in their possession in accordance with policies and\nprocedures implemented by such persons in order to comply with applicable law, regulation or professional standards, provided, that any Evaluation\nMaterial so retained shall continue to be subject to the terms of this Agreement.\n6. You acknowledge that, in your and your Representatives' examination of the Evaluation Material, you and your Representatives will have\naccess to material, non-public information, and that you are aware, and shall advise your Representatives who receive Evaluation Material or are\notherwise aware of the subject matter of this Agreement, that state and Federal laws, including, without limitation, Federal securities laws, impose\nrestrictions on the dissemination of such information and trading in securities when in possession of such information.\n7. For a period of 12 months from the date hereof, you shall not, nor shall you permit any of your Representatives to, directly or indirectly,\n(a) engage in any discussion regarding the Company or any of its affiliates with any supplier, vendor, customer or other person with whom the\nCompany\nhas\na\nrelationship,\nother\nthan\nin\nthe\nordinary\ncourse\nof\nyour\nor\nyour\napplicable\nRepresentative's\nbusiness\nconsistent\nwith\npast\npractice\nor\n(b) solicit for employment or hire any named officer or employee at the level of vice president or above of the Company or any of its subsidiaries or\naffiliates that you or any of your Representatives in connection with your consideration of a Transaction hereunder have discussions with or first\nobtain information with respect to, provided that this clause (b) shall not preclude you or any of your Representatives from hiring any such officer\nor\nemployee who (i) has had his or her employment terminated by the Company or any of its subsidiaries or affiliates prior to commencement of\nemployment discussions between you or your applicable Representative and such officer or employee, or (ii) responds to any general solicitation\nperformed by you or your applicable Representative that is not targeted at the Company or any of its subsidiaries or affiliates.\n8. Goldman Sachs & Co. ("Goldman") shall have exclusive responsibility for arranging appropriate contacts for due diligence and other\npurposes regarding your consideration of a possible Transaction. Unless otherwise expressly agreed to in writing by the Company, all\ncommunications regarding a Transaction, requests for information concerning the Company or its subsidiaries or affiliates or a Transaction, notices\nunder this Agreement and questions regarding procedures in connection with a Transaction shall be submitted or directed exclusively to the\nrepresentatives of Goldman specifically identified to you by Goldman as contacts with respect to a Transaction. Under no circumstances shall you or\nany of your Representatives directly communicate with any director, officer or other employee of the Company or any of its subsidiaries or affiliates\nregarding any Evaluation Material or a Transaction or any other matter in connection therewith (other than during any management presentation, site\nvisit or other meeting or conference call pre-arranged through Goldman).\n9.\nNeither the Company nor any of its Representatives makes any representations or warranties, express or implied, with respect to the\naccuracy or completeness of the Evaluation Material, including, without limitation, any forecasts, projections or other forward-looking information\nincluded therein. You agree that, other than as may be set forth in any definitive agreement with respect to a Transaction, neither the Company nor its\nRepresentatives shall have any liability whatsoever to you or any of your Representatives, including, without limitation, in contract, tort or under\nFederal or state securities laws, relating to or resulting from the use of the\n3\nEvaluation Material by you or your Representatives or any errors therein or omissions therefrom. You and your Representatives are not entitled\nto\nrely on any Evaluation Material and only such express representations and warranties regarding Evaluation Material as may be made to you in a\ndefinitive written agreement relating to a Transaction, if any, shall have any legal effect, subject to the terms and conditions of such agreement.\n10. Each party agrees that no contract or agreement providing for a Transaction shall exist, directly or indirectly, unless and until a definitive\nwritten\nagreement\nwith respect to a Transaction has been executed and delivered by both the Company and you or one of your affiliates. Each\nparty\nalso agrees that unless and until a definitive written agreement with respect to a Transaction has been executed and delivered by the Company and\nyou or one of your affiliates, neither you nor the Company, nor any subsidiary or affiliate of the Company, shall be under any legal obligation of any\nkind whatsoever with respect to a Transaction by virtue of this Agreement (except for the matters specifically provided herein) or otherwise or by\nvirtue of any written or oral communications with respect to a Transaction by any of the Company's or your Representatives. You agree that neither\nthe Company nor any of its Representatives shall be under any obligation to provide you with any Evaluation Material or to supplement or update\nany Evaluation Material previously provided Nothing contained in this Agreement nor the furnishing of any Evaluation Material hereunder shall be\nconstrued as granting or conferring any rights by license or otherwise in any intellectual property. You further agree that the Company possesses the\nright to, and may, in its sole and absolute discretion and for any or no reason at all, reject any and all proposals made by you or your Representatives\nwith respect to a Transaction, terminate discussions and negotiations with you at any time, and conduct any process for a Transaction as it may\ndetermine (including, without limitation, negotiating with any other potentially interested person and entering into a definitive agreement with any\nother person without any prior notice to you or any of your Representatives).\n11. For a period of 18 months from the date hereof (the "Restricted Period"), unless you are specifically invited in writing in advance by the\nboard of directors or chief executive officer of the Company or Goldman on Company's behalf, neither you nor any of your affiliates nor any other\nperson acting at your or your affiliates' direct or indirect instruction shall, in any manner, directly or indirectly, (a) acquire, offer to acquire, agree\nto\nacquire or make a proposal to acquire, by purchase or otherwise, or borrow, any equity securities, or any direct or indirect rights, options or other\nderivative interests with respect to any equity securities, of the Company or any subsidiary of the Company or of any successor to or person in\ncontrol of the Company, or any assets or property of the Company or any subsidiary of the Company or of any such successor or controlling person\n(except that this restriction shall not apply to acquisitions by you or any benefit plan controlled by you of not more than one percent (in the\naggregate) of the then outstanding shares of a Company's common stock); (b) make or in any way participate in any "solicitation" of "proxies"\n(as\nsuch terms are defined in Rule 14a-1 under the Exchange Act, and including any otherwise exempt solicitation pursuant to Rule 14a-2(b) under\nthe\nExchange Act) to vote or deliver a written consent with respect to, or seek to advise or influence any person with respect to the voting of or\ndelivering a written consent with respect to, any voting securities of the Company or any of its subsidiaries (provided, that this clause (b) shall not\nprohibit the delivery by you or any of your Representatives of a revocable proxy or consent in response to a public proxy or consent solicitation\nmade generally to all holders of the Company's equity securities pursuant to, and in accordance with, the applicable rules and regulations under the\nExchange Act); (c) make any public announcement with respect to, or publicly support, or solicit or submit a proposal for or offer of (with or\nwithout\nconditions) any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization, purchase of a material\nportion of the assets or properties of or other similar extraordinary transaction involving the Company or any of its subsidiaries or any of their\nrespective securities; (d) form, join or in any way participate in any "group" (within the meaning of Section 13(d) of the Exchange Act and the rules\nand regulations promulgated thereunder) with respect to any securities of the Company or otherwise in connection with any of the foregoing;\n(e) submit a proposal (including any precatory proposal) to be considered by the stockholders of the Company, or take any action to nominate\nany\nperson for membership on the board of directors of the Company, or take any action to remove any director from the board of directors of the\nCompany or to change the size or composition of the board of directors of the Company; (f) otherwise act, alone or in concert with others, to seek\nor\npropose to control or influence the management, board of directors or policies or affairs of the Company or any of its subsidiaries; (g) disclose any\nintention, plan,\n4\nproposal or arrangement inconsistent with any of the foregoing; (h) advise, assist, encourage or direct any other person to do any of the foregoing, or\nact as a financing source for or otherwise invest in any person in connection with such person doing any of the foregoing; (i) take any action that\ncould reasonably be expected to require the Company to make a public announcement regarding the possibility of a Transaction with you or any\nof\nyour affiliates or any of the other events described in this paragraph; or (j) take any action challenging the validity or enforceability of this paragraph,\nor request the Company amend or waive any provision of this paragraph (including this clause (j)), provided, that (i) you may make confidential\nrequests to the Company to amend or waive any of the limitations set forth in this paragraph, which the Company may accept or reject in its sole\ndiscretion, so long as any such request is made in a manner that does not reasonably require the public disclosure thereof by any person and (ii) your\nchairman or chief executive officer may communicate with the chairman and/or the chief executive officer of Company so long as such\ncommunication is made confidentially and any such request is made in a manner that does not reasonably require the public disclosure thereof\nby\nany person. Notwithstanding anything in this paragraph to the contrary, if a Fundamental Change Event (as defined below) occurs, you shall have the\nright to make one or more proposals to the Company regarding any of the matters in this paragraph, including, without limitation, to effect\na\ntransaction pursuant to which you or your affiliates would acquire a majority of the outstanding voting securities of the Company or all\nor\nsubstantially all of the assets of the Company and its subsidiaries. A "Fundamental Change Event" means the entry by the Company into a binding\ndefinitive agreement with a third person to effect a purchase, tender or exchange offer, merger or other business combination that, if consummated,\nwould result in such third party owning at least a majority of the outstanding voting securities of the Company or all or substantially all of the assets\nof the Company and its subsidiaries (taken as a whole). You acknowledge that the Evaluation Material is being furnished to you and your\nRepresentatives, in part, in consideration of your agreements in this paragraph.\nThe Company represents to you that prior to the date of this Agreement, it has not entered into a confidentiality or similar agreement (taking into\neffect any waivers thereunder and amendments thereto) relating to a possible transaction with the Company as contemplated hereunder that contains\n(i) standstill provisions the duration of which are shorter than the Restricted Period, or (ii) a provision (such provision, a "Public Notice Release\nProvision") that would permit the counterparty thereto to be released from its standstill obligations thereunder upon the Company announcing\npublicly (other than in connection with the execution of a definitive merger or similar acquisition agreement) that it is seeking purchasers\nfor\na\nmajority of its outstanding voting securities or all or substantially all of its and its subsidiaries' assets. The Company covenants and agrees that if it\nshall hereafter enter into a confidentiality or similar agreement (taking into effect any waivers thereunder and amendments thereto) relating to a\ntransaction with the Company as contemplated hereunder that contains standstill provisions the duration of which are shorter than the Restricted\nPeriod or which contains a Public Notice Release Provision, the Company shall (A) provide written notice thereof to you, (B) agree to reduce the\nduration of the Restricted Period so that it is no longer than the duration of such shorter standstill period, and (C) agree to amend this Agreement\nto\ninclude a Public Notice Release Provision on terms substantially similar to those set forth in such other confidentiality or similar agreement.\n12. You recognize and acknowledge the competitive value and confidential nature of the Evaluation Material and that the Company and its\naffiliates and its and their subsidiaries would be irreparably harmed if information contained therein or derived therefrom is disclosed to any person\nor used for any purpose, in each case in material breach by you or your Representatives of the terms of this Agreement, or any other material breach\nby you or your Representatives of this Agreement shall otherwise occur. You further understand and agree that monetary remedies would be\ninadequate to protect the Company and its affiliates and its and their subsidiaries against any actual or threatened material breach of this Agreement\nby you or your Representatives, and that Company shall be entitled to an injunction or injunctions to prevent material breaches or threatened\nmaterial breaches by you or your Representatives of this Agreement and to compel specific performance of this Agreement. Such remedies shall\nnot\nbe\nthe\nexclusive remedy for actual or threatened breaches of this Agreement but shall be in addition to all other remedies available at law or in equity\nto the Company and its affiliates and their respective subsidiaries. No failure or delay by any party hereto in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or\n5\nfurther exercise thereof or the exercise of any other right, power or privilege hereunder. Notwithstanding anything to the contrary in this paragraph,\nCompany agrees and acknowledges that you and your Representatives do not waive the right to contest, and shall not be prohibited from contesting,\nwhether there has been a material breach by you or your Representatives of this Agreement.\n13. If any provision contained in this Agreement or the application thereof to you, the Company, or any other person or circumstance shall be\ninvalid,\nillegal\nor\nunenforceable\nin\nany\nrespect\nunder\nany\napplicable\nlaw\nas\ndetermined\nby\na\ncourt\nof\ncompetent\njurisdiction,\nthe\nvalidity,\nlegality\nand\nenforceability of the remaining provisions contained in this Agreement, or the application of such provision to such persons or circumstances other\nthan those as to which it has been held invalid, illegal or unenforceable, shall remain in full force and effect and shall in no way be affected, impaired\nor invalidated thereby. In the case of any such determination of invalidity, illegality or unenforceability, the parties hereto shall negotiate in good\nfaith in an effort to agree upon a suitable and equitable substitute provision to effect the original intent of the parties.\n14. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to\nthe\nprinciples of conflict of laws thereof that would require the application of the laws of any other jurisdiction. Each party irrevocably submits, on\nbehalf of itself and its Representatives, to the exclusive jurisdiction of the Chancery Court of the State of Delaware (the "Chancery Court"), or,\nsolely to the extent the Chancery Court does not have subject matter jurisdiction, the exclusive jurisdiction of the other state or federal court located\nin the State of Delaware (such courts together with the Chancery Court, the "Chosen Courts"), for the purposes of any suit, action or other\nproceeding arising out of this Agreement or a Transaction. Each party irrevocably and unconditionally waives, on behalf of itself and its\nRepresentatives, and agrees not to plead or claim, any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement\nor a Transaction in the Chosen Courts or that any such action, suit or proceeding brought in any such Chosen Court has been brought in an\ninconvenient forum. Each party irrevocably agrees, on behalf of itself and its Representatives, that service of any process, summons, notice\nor\ndocument by U.S. registered mail to the address set forth in the heading of this Agreement shal be effective service of process for any action, suit or\nproceeding brought against such party or any of its Representatives.\n15. This Agreement contains the entire agreement between the parties concerning the subject matter hereof, and no modification of this\nAgreement or waiver of the terms and conditions hereof shall be binding upon either party, unless approved in writing by each party. This Agreement\nshall inure to the benefit of the parties hereto, and their successors and permitted assigns. Any assignment of this Agreement by either party without\nthe prior written consent of the other shall be void.\n16. The obligations of the parties under this Agreement shall terminate and be of no further force and effect two years from the date hereof,\nprovided that such termination shall not relieve any party from liability for any breach of this Agreement prior to such termination.\n17. This Agreement may be executed in counterparts (including, without limitation, via facsimile or other electronic image scan), each of\nwhich shall be deemed to be an original, but both of which shall constitute one and the same agreement and shall become effective when one or more\ncounterparts have been signed by each of the parties and delivered to the other party.\n[remainder of page intentionally left blank; signature page follows]\n6\nIf the foregoing correctly sets forth the agreement between you and the Company, please sign and return a copy of this signature page,\nwhereupon this Agreement shall become our binding agreement.\nVery truly yours,\nINSPIRE PHARMACEUTICALS, INC.,\nBy /s/ Adrian Adams\nName: Adrian Adams\nTitle: President & CEO\nAGREED AND ACKNOWLEDGED\nas of the date first written above\nMERCK SHARP & DOHME CORP.\nBy /s/ Richard N. Kender\nName: Richard N. Kender\nTitle: Senior Vice President,\nBusiness Development & Corporate\nLicensing\n7	EX-99.E .3 3 dex99e3.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(3)\nLOGO\nPRIVATE AND CONFIDENTIAL\nFebruary 23, 2011\nMerck Sharp & Dohme Corp.\nOne Merck Drive\nWhitehouse Station, NJ 08889-0100\nAttention: Richard Kender, Senior Vice President, Business Develop & Corporate Licensing\nLadies and Gentlemen:\nWe understand that Merck Sharp & Dohme Corp. (“you”) has requested information regarding Inspire Pharmaceuticals, Inc. (the “Company”)\nin connection with your consideration of a possible negotiated transaction between you and the Company pursuant to which you or one of your\ncontrolled or controlling affiliates would acquire the Company (a “Transaction”). The Company is prepared, subject to the terms and conditions of\nthis letter agreement (this “Agreement”), to furnish you with certain confidential and proprietary information concerning the Company on the terms\nset forth herein.\n1. As a condition to being furnished information by or on behalf of the Company, you and your Representatives (as defined below) shall treat\nin accordance with this Agreement all information (including, without limitation, oral, written, emails and all other electronic information)\nconcerning the Company or its Representatives that has been or may be furnished to you by or on behalf of the Company or any of its\nRepresentatives in connection with a possible Transaction, and all analyses, compilations, forecasts, studies, memoranda, notes, other materials and\nportions thereof prepared by you or any of your Representatives, or otherwise on your behalf, that contain, reflect or are based upon, in whole or in\npart, any such information, including, without limitation, any such materials stored in electronic format (collectively, the “Evaluation Material”). The\nterm “Evaluation Material” does not include information that (a) is or becomes generally available to the public other than as a result of a disclosure\nby you or any of your Representatives, (b) is or becomes available to you on a non-confidential basis from a source other than the Company or its\nRepresentatives, provided that such source is reasonably believed by you to not be bound by an obligation of confidentiality (whether by agreement,\nduty or otherwise) to the Company or its Representatives or (c) you can demonstrate was independently developed by you without reference to,\nincorporation of, or other use of any Evaluation Material or information from any source that is bound by an obligation of confidentiality (whether\nby agreement, duty or otherwise) to the Company or its Representatives. As used in this Agreement, the term “Representatives” means (i) when used\nin relation to the Company, the Company’s direct and indirect parent, subsidiaries and affiliates and its and their respective directors, officers,\nemployees, agents and advisors (including, without limitation, financial and legal advisors, consultants and accountants) and (ii) when used in\nrelation to you, your subsidiaries and affiliates and your and their respective directors, officers, members, general (but not limited) partners,\nemployees, agents, advisors (including, without limitation, financial and legal advisors, consultants and accountants) and any commercial bank or\nother person engaged by you to provide or arrange potential debt financing in connection with the Transaction (a “Potential Debt Source”). As used\nin this Agreement, the term “person” shall be broadly interpreted to include the media and any corporation, partnership, company, group,\ngovernmental entity, trust, natural person or other entity. As used in this Agreement, the term “affiliate” shall have the meaning ascribed to it in Rule\n12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).\n2. In consideration of being furnished Evaluation Material, you and your Representatives shall keep all Evaluation Material confidential, and\nyou and your Representatives shall not disclose Evaluation Material to any other person, provided that (a) you may disclose Evaluation Material as\nrequired by applicable law, regulation or legal process and (b) you may disclose Evaluation Material to any of your Representatives who need to\nknow such Evaluation Material for the sole purpose of evaluating a Transaction on your behalf if prior to any such disclosure (i) you advise such\nRepresentative of the confidential nature of the Evaluation Material and the terms of this Agreement, (ii) such Representative agrees with you to\nkeep the Evaluation Material confidential in accordance with the terms hereof and to observe the other terms of this Agreement and (iii) in the case\nof a Representative that is a Potential Debt Source, such Representative agrees in a writing to the Company to be bound by the terms of this\nAgreement to the same extent as if it were a party hereto. You and your Representatives shall not provide any Evaluation Material to any potential\nequity financing source or other co-investor without the Company’s prior written consent. In the event that the Company provides such consent with\nrespect to a potential equity financing source or other co-investor, neither you nor your Representatives shall provide any Evaluation Material to\nsuch person unless and until such person has executed and delivered to the Company a letter agreement that is substantially identical to this\nAgreement. You and your Representatives shall not enter into any agreement or arrangement with any potential equity financing source or other co-\ninvestor regarding the provision of equity financing or other co-investment, nor shall you or any of your Representatives enter into any discussions\nwith any such person regarding the provision of any equity financing or other co-investment, in each case without the prior written consent of the\nCompany. Evaluation Material shall be used by you and your Representatives solely for the purpose of evaluating a Transaction and shall not be\nused for any other purpose whatsoever. This Agreement shall apply to your Representatives as if they were direct parties hereto and you shall be\nresponsible for any breach of this Agreement by your Representatives, provided, that you shall not be responsible for any breach of this Agreement\nby any such Representative who has agreed in writing with the Company to be directly bound by the terms of this Agreement. Neither you nor any\nof your Representatives shall enter into any exclusivity, “lock-up”, “dry-up” or other agreement or arrangement, whether written or oral, with any\npotential debt financing source that does or could reasonably be expected to directly or indirectly limit, restrict, restrain or otherwise impair the\nability of such potential financing source to act as a financing source to any other person considering a transaction involving the Company.\n3. In addition, except as required by applicable law, regulation or legal process, neither you nor any of your Representatives shall disclose to\nany person (except, if and to the extent permitted by the immediately preceding paragraph, to your Representatives and any potential equity\nfinancing source or other co-investor) (a) that Evaluation Material has been requested by or furnished or made available to you or your\nRepresentatives, (b) the fact that this Agreement exists or the terms hereof, (c) that you are considering a Transaction, (d) that investigations,\ndiscussions or negotiations are taking place concerning a Transaction or (e) any of the terms, conditions or other facts or information with respect to\na Transaction or any other potential similar transaction involving the Company, including, without limitation, the status or termination thereof.\n4. In the event that you or any of your Representatives are required by applicable law, regulation or legal process (including, without\nlimitation, by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or other legal process) to\ndisclose any Evaluation Material or any information of the type described in the immediately preceding paragraph, you shall provide the Company\nwith prompt prior written notice of such requirement. You and your Representatives shall also, to the extent legally permissible, provide the\nCompany as promptly as practicable with a description of the information that may be required to be disclosed (and, if applicable, the text of the\ndisclosure itself) and reasonably cooperate (at Company’s expense) with the Company to the extent it may seek to limit such disclosure, including, if\nrequested, by taking all reasonable steps to resist or narrow any such disclosure or to obtain a protective order or other remedy with respect thereto.\nIf a protective order or other remedy is not obtained and disclosure is legally required, you and your applicable Representatives shall (a) disclose\nsuch information only to the extent required in the opinion of your or your applicable Representatives’ outside counsel and (b) give advance notice\nto the Company of the information to be actually disclosed as far in advance as is reasonably possible. In any such event, you and your applicable\nRepresentatives shall use reasonable efforts to ensure that all Evaluation Material\n2\nand all information of the type described in the immediately preceding paragraph that is so disclosed is accorded confidential treatment by the\nrecipient thereof.\n5. In the event that you determine not to proceed with a Transaction, you shall promptly inform the Company of that decision and, in that case\nor at any other time upon the request of the Company (in its sole discretion), you and your Representatives shall promptly deliver to the Company or\ndestroy, at your election, all Evaluation Material, including all notes relating thereto, without retaining any copy thereof. If requested by the\nCompany, you shall certify to the Company that all such material has been so delivered or destroyed in compliance herewith. Notwithstanding the\ndelivery or destruction of the Evaluation Material required by this paragraph, any and all duties and obligations existing under this Agreement shall\nremain in full force and effect. Notwithstanding the foregoing or any delivery or destruction of any Evaluation Material, your Representatives that\nare accounting firms may retain solely for compliance purposes copies of the Evaluation Material in their possession in accordance with policies and\nprocedures implemented by such persons in order to comply with applicable law, regulation or professional standards, provided, that any Evaluation\nMaterial so retained shall continue to be subject to the terms of this Agreement.\n6. You acknowledge that, in your and your Representatives’ examination of the Evaluation Material, you and your Representatives will have\naccess to material, non-public information, and that you are aware, and shall advise your Representatives who receive Evaluation Material or are\notherwise aware of the subject matter of this Agreement, that state and Federal laws, including, without limitation, Federal securities laws, impose\nrestrictions on the dissemination of such information and trading in securities when in possession of such information.\n7. For a period of 12 months from the date hereof, you shall not, nor shall you permit any of your Representatives to, directly or indirectly,\n(a) engage in any discussion regarding the Company or any of its affiliates with any supplier, vendor, customer or other person with whom the\nCompany has a relationship, other than in the ordinary course of your or your applicable Representative’s business consistent with past practice or\n(b) solicit for employment or hire any named officer or employee at the level of vice president or above of the Company or any of its subsidiaries or\naffiliates that you or any of your Representatives in connection with your consideration of a Transaction hereunder have discussions with or first\nobtain information with respect to, provided that this clause (b) shall not preclude you or any of your Representatives from hiring any such officer or\nemployee who (i) has had his or her employment terminated by the Company or any of its subsidiaries or affiliates prior to commencement of\nemployment discussions between you or your applicable Representative and such officer or employee, or (ii) responds to any general solicitation\nperformed by you or your applicable Representative that is not targeted at the Company or any of its subsidiaries or affiliates.\n8. Goldman Sachs & Co. (“Goldman”) shall have exclusive responsibility for arranging appropriate contacts for due diligence and other\npurposes regarding your consideration of a possible Transaction. Unless otherwise expressly agreed to in writing by the Company, all\ncommunications regarding a Transaction, requests for information concerning the Company or its subsidiaries or affiliates or a Transaction, notices\nunder this Agreement and questions regarding procedures in connection with a Transaction shall be submitted or directed exclusively to the\nrepresentatives of Goldman specifically identified to you by Goldman as contacts with respect to a Transaction. Under no circumstances shall you or\nany of your Representatives directly communicate with any director, officer or other employee of the Company or any of its subsidiaries or affiliates\nregarding any Evaluation Material or a Transaction or any other matter in connection therewith (other than during any management presentation, site\nvisit or other meeting or conference call pre-arranged through Goldman).\n9. Neither the Company nor any of its Representatives makes any representations or warranties, express or implied, with respect to the\naccuracy or completeness of the Evaluation Material, including, without limitation, any forecasts, projections or other forward-looking information\nincluded therein. You agree that, other than as may be set forth in any definitive agreement with respect to a Transaction, neither the Company nor its\nRepresentatives shall have any liability whatsoever to you or any of your Representatives, including, without limitation, in contract, tort or under\nFederal or state securities laws, relating to or resulting from the use of the\n3\nEvaluation Material by you or your Representatives or any errors therein or omissions therefrom. You and your Representatives are not entitled to\nrely on any Evaluation Material and only such express representations and warranties regarding Evaluation Material as may be made to you in a\ndefinitive written agreement relating to a Transaction, if any, shall have any legal effect, subject to the terms and conditions of such agreement.\n10. Each party agrees that no contract or agreement providing for a Transaction shall exist, directly or indirectly, unless and until a definitive\nwritten agreement with respect to a Transaction has been executed and delivered by both the Company and you or one of your affiliates. Each party\nalso agrees that unless and until a definitive written agreement with respect to a Transaction has been executed and delivered by the Company and\nyou or one of your affiliates, neither you nor the Company, nor any subsidiary or affiliate of the Company, shall be under any legal obligation of any\nkind whatsoever with respect to a Transaction by virtue of this Agreement (except for the matters specifically provided herein) or otherwise or by\nvirtue of any written or oral communications with respect to a Transaction by any of the Company’s or your Representatives. You agree that neither\nthe Company nor any of its Representatives shall be under any obligation to provide you with any Evaluation Material or to supplement or update\nany Evaluation Material previously provided. Nothing contained in this Agreement nor the furnishing of any Evaluation Material hereunder shall be\nconstrued as granting or conferring any rights by license or otherwise in any intellectual property. You further agree that the Company possesses the\nright to, and may, in its sole and absolute discretion and for any or no reason at all, reject any and all proposals made by you or your Representatives\nwith respect to a Transaction, terminate discussions and negotiations with you at any time, and conduct any process for a Transaction as it may\ndetermine (including, without limitation, negotiating with any other potentially interested person and entering into a definitive agreement with any\nother person without any prior notice to you or any of your Representatives).\n11. For a period of 18 months from the date hereof (the “Restricted Period”), unless you are specifically invited in writing in advance by the\nboard of directors or chief executive officer of the Company or Goldman on Company’s behalf, neither you nor any of your affiliates nor any other\nperson acting at your or your affiliates’ direct or indirect instruction shall, in any manner, directly or indirectly, (a) acquire, offer to acquire, agree to\nacquire or make a proposal to acquire, by purchase or otherwise, or borrow, any equity securities, or any direct or indirect rights, options or other\nderivative interests with respect to any equity securities, of the Company or any subsidiary of the Company or of any successor to or person in\ncontrol of the Company, or any assets or property of the Company or any subsidiary of the Company or of any such successor or controlling person\n(except that this restriction shall not apply to acquisitions by you or any benefit plan controlled by you of not more than one percent (in the\naggregate) of the then outstanding shares of a Company’s common stock); (b) make or in any way participate in any “solicitation” of “proxies” (as\nsuch terms are defined in Rule 14a-1 under the Exchange Act, and including any otherwise exempt solicitation pursuant to Rule 14a-2(b) under the\nExchange Act) to vote or deliver a written consent with respect to, or seek to advise or influence any person with respect to the voting of or\ndelivering a written consent with respect to, any voting securities of the Company or any of its subsidiaries (provided, that this clause (b) shall not\nprohibit the delivery by you or any of your Representatives of a revocable proxy or consent in response to a public proxy or consent solicitation\nmade generally to all holders of the Company’s equity securities pursuant to, and in accordance with, the applicable rules and regulations under the\nExchange Act); (c) make any public announcement with respect to, or publicly support, or solicit or submit a proposal for or offer of (with or without\nconditions) any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization, purchase of a material\nportion of the assets or properties of or other similar extraordinary transaction involving the Company or any of its subsidiaries or any of their\nrespective securities; (d) form, join or in any way participate in any “group” (within the meaning of Section 13(d) of the Exchange Act and the rules\nand regulations promulgated thereunder) with respect to any securities of the Company or otherwise in connection with any of the foregoing;\n(e) submit a proposal (including any precatory proposal) to be considered by the stockholders of the Company, or take any action to nominate any\nperson for membership on the board of directors of the Company, or take any action to remove any director from the board of directors of the\nCompany or to change the size or composition of the board of directors of the Company; (f) otherwise act, alone or in concert with others, to seek or\npropose to control or influence the management, board of directors or policies or affairs of the Company or any of its subsidiaries; (g) disclose any\nintention, plan,\n4\nproposal or arrangement inconsistent with any of the foregoing; (h) advise, assist, encourage or direct any other person to do any of the foregoing, or\nact as a financing source for or otherwise invest in any person in connection with such person doing any of the foregoing; (i) take any action that\ncould reasonably be expected to require the Company to make a public announcement regarding the possibility of a Transaction with you or any of\nyour affiliates or any of the other events described in this paragraph; or (j) take any action challenging the validity or enforceability of this paragraph,\nor request the Company amend or waive any provision of this paragraph (including this clause (j)), provided, that (i) you may make confidential\nrequests to the Company to amend or waive any of the limitations set forth in this paragraph, which the Company may accept or reject in its sole\ndiscretion, so long as any such request is made in a manner that does not reasonably require the public disclosure thereof by any person and (ii) your\nchairman or chief executive officer may communicate with the chairman and/or the chief executive officer of Company so long as such\ncommunication is made confidentially and any such request is made in a manner that does not reasonably require the public disclosure thereof by\nany person. Notwithstanding anything in this paragraph to the contrary, if a Fundamental Change Event (as defined below) occurs, you shall have the\nright to make one or more proposals to the Company regarding any of the matters in this paragraph, including, without limitation, to effect a\ntransaction pursuant to which you or your affiliates would acquire a majority of the outstanding voting securities of the Company or all or\nsubstantially all of the assets of the Company and its subsidiaries. A “Fundamental Change Event” means the entry by the Company into a binding\ndefinitive agreement with a third person to effect a purchase, tender or exchange offer, merger or other business combination that, if consummated,\nwould result in such third party owning at least a majority of the outstanding voting securities of the Company or all or substantially all of the assets\nof the Company and its subsidiaries (taken as a whole). You acknowledge that the Evaluation Material is being furnished to you and your\nRepresentatives, in part, in consideration of your agreements in this paragraph.\nThe Company represents to you that prior to the date of this Agreement, it has not entered into a confidentiality or similar agreement (taking into\neffect any waivers thereunder and amendments thereto) relating to a possible transaction with the Company as contemplated hereunder that contains\n(i) standstill provisions the duration of which are shorter than the Restricted Period, or (ii) a provision (such provision, a “Public Notice Release\nProvision”) that would permit the counterparty thereto to be released from its standstill obligations thereunder upon the Company announcing\npublicly (other than in connection with the execution of a definitive merger or similar acquisition agreement) that it is seeking purchasers for a\nmajority of its outstanding voting securities or all or substantially all of its and its subsidiaries’ assets. The Company covenants and agrees that if it\nshall hereafter enter into a confidentiality or similar agreement (taking into effect any waivers thereunder and amendments thereto) relating to a\ntransaction with the Company as contemplated hereunder that contains standstill provisions the duration of which are shorter than the Restricted\nPeriod or which contains a Public Notice Release Provision, the Company shall (A) provide written notice thereof to you, (B) agree to reduce the\nduration of the Restricted Period so that it is no longer than the duration of such shorter standstill period, and (C) agree to amend this Agreement to\ninclude a Public Notice Release Provision on terms substantially similar to those set forth in such other confidentiality or similar agreement.\n12. You recognize and acknowledge the competitive value and confidential nature of the Evaluation Material and that the Company and its\naffiliates and its and their subsidiaries would be irreparably harmed if information contained therein or derived therefrom is disclosed to any person\nor used for any purpose, in each case in material breach by you or your Representatives of the terms of this Agreement, or any other material breach\nby you or your Representatives of this Agreement shall otherwise occur. You further understand and agree that monetary remedies would be\ninadequate to protect the Company and its affiliates and its and their subsidiaries against any actual or threatened material breach of this Agreement\nby you or your Representatives, and that Company shall be entitled to an injunction or injunctions to prevent material breaches or threatened\nmaterial breaches by you or your Representatives of this Agreement and to compel specific performance of this Agreement. Such remedies shall not\nbe the exclusive remedy for actual or threatened breaches of this Agreement but shall be in addition to all other remedies available at law or in equity\nto the Company and its affiliates and their respective subsidiaries. No failure or delay by any party hereto in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or\n5\nfurther exercise thereof or the exercise of any other right, power or privilege hereunder. Notwithstanding anything to the contrary in this paragraph,\nCompany agrees and acknowledges that you and your Representatives do not waive the right to contest, and shall not be prohibited from contesting,\nwhether there has been a material breach by you or your Representatives of this Agreement.\n13. If any provision contained in this Agreement or the application thereof to you, the Company, or any other person or circumstance shall be\ninvalid, illegal or unenforceable in any respect under any applicable law as determined by a court of competent jurisdiction, the validity, legality and\nenforceability of the remaining provisions contained in this Agreement, or the application of such provision to such persons or circumstances other\nthan those as to which it has been held invalid, illegal or unenforceable, shall remain in full force and effect and shall in no way be affected, impaired\nor invalidated thereby. In the case of any such determination of invalidity, illegality or unenforceability, the parties hereto shall negotiate in good\nfaith in an effort to agree upon a suitable and equitable substitute provision to effect the original intent of the parties.\n14. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to the\nprinciples of conflict of laws thereof that would require the application of the laws of any other jurisdiction. Each party irrevocably submits, on\nbehalf of itself and its Representatives, to the exclusive jurisdiction of the Chancery Court of the State of Delaware (the “Chancery Court”), or,\nsolely to the extent the Chancery Court does not have subject matter jurisdiction, the exclusive jurisdiction of the other state or federal court located\nin the State of Delaware (such courts together with the Chancery Court, the “Chosen Courts”), for the purposes of any suit, action or other\nproceeding arising out of this Agreement or a Transaction. Each party irrevocably and unconditionally waives, on behalf of itself and its\nRepresentatives, and agrees not to plead or claim, any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement\nor a Transaction in the Chosen Courts or that any such action, suit or proceeding brought in any such Chosen Court has been brought in an\ninconvenient forum. Each party irrevocably agrees, on behalf of itself and its Representatives, that service of any process, summons, notice or\ndocument by U.S . registered mail to the address set forth in the heading of this Agreement shall be effective service of process for any action, suit or\nproceeding brought against such party or any of its Representatives.\n15. This Agreement contains the entire agreement between the parties concerning the subject matter hereof, and no modification of this\nAgreement or waiver of the terms and conditions hereof shall be binding upon either party, unless approved in writing by each party. This Agreement\nshall inure to the benefit of the parties hereto, and their successors and permitted assigns. Any assignment of this Agreement by either party without\nthe prior written consent of the other shall be void.\n16. The obligations of the parties under this Agreement shall terminate and be of no further force and effect two years from the date hereof,\nprovided that such termination shall not relieve any party from liability for any breach of this Agreement prior to such termination.\n17. This Agreement may be executed in counterparts (including, without limitation, via facsimile or other electronic image scan), each of\nwhich shall be deemed to be an original, but both of which shall constitute one and the same agreement and shall become effective when one or more\ncounterparts have been signed by each of the parties and delivered to the other party.\n[remainder of page intentionally left blank; signature page follows]\n6\nIf the foregoing correctly sets forth the agreement between you and the Company, please sign and return a copy of this signature page,\nwhereupon this Agreement shall become our binding agreement.\nVery truly yours,\nINSPIRE PHARMACEUTICALS, INC.,\nBy /s/ Adrian Adams\nName: Adrian Adams\nTitle: President & CEO\nAGREED AND ACKNOWLEDGED\nas of the date first written above\nMERCK SHARP & DOHME CORP.\nBy /s/ Richard N. Kender\nName: Richard N. Kender\nTitle: Senior Vice President,\nBusiness Development & Corporate\nLicensing\n7
54c158ec88fee08c279f0ae2d3f704b2.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 10 d527572dex99d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nOctober 9, 2017\nDuravant LLC\n3500 Lacey Rd\nSuite 290\nDowners Grove, IL 60515\nAttention: Carson Brennan\nDirector of Business Development\nDear Carson:\nIn connection with your consideration of a possible transaction (the “Transaction”) involving the Company1 and its Representatives (as defined\nbelow), including Robert W. Baird & Co. Incorporated (“Baird”) acting as the Company’s financial advisor in connection with the proposed\nTransaction, are prepared to make available to you certain information which is non-public, confidential or proprietary in nature. Baird is authorized to\nexecute this letter agreement (the “Agreement”) and provide information to you, on behalf of the Company.\nUpon your execution of this Agreement, Baird will disclose in writing (including via e-mail) the name of the Company. You agree that the term the\n“Company” as used throughout this Agreement shall have the meaning assigned to them by Baird in such disclosure and, accordingly, such meaning\nshall be binding on you.\nBy execution of this Agreement, you agree to treat confidentially any information that you or your Representatives may be provided by or on behalf of\nthe Company (collectively, the “Evaluation Material”). The term “Evaluation Material” shall also include all reports, analyses, notes or other\ninformation that are based on, contain or reflect any Evaluation Material (“Notes”). The term “Evaluation Material” does not include information that\n(i) is now or becomes available to participants in the Company’s industry or the public other than as a result of a disclosure by you or any of your\nRepresentatives, (ii) was available to or in the possession of you or your Representatives on a non-confidential basis prior to the disclosure of such\nEvaluation Material to you pursuant to this Agreement, provided that the source of such information was not known by you or any of your\nRepresentatives, after reasonable inquiry to be bound by a confidentiality obligation, (iii) becomes available to you or your Representatives on a\nnon-confidential basis from a source other than the Company or any of its Representatives, provided that such source is not known by you or any of\nyour Representatives, after reasonable inquiry, to be bound by a confidentiality obligation, (iv) is independently developed by or for you or your\nRepresentatives without use of the Evaluation Material, or (v) is a general concept, idea, or general research applicable to the Company’s industry. For\npurposes of this Agreement the “Representatives” of a person shall include the stockholders, owners, partners, limited partners (who may also serve as\na co-investor source), special limited partners, members, directors, managers, officers, principals, employees, agents, advisors (including, without\nlimitation, attorneys, accountants, consultants, bankers, debt financing sources, and financial advisors) and other professional representatives of such\nperson or such person’s Affiliates (as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended), but shall not include, in\nyour case, any equity financing source and you shall not disclose the Evaluation Material to any such equity financing source without first obtaining\nthe written consent of the Company to do so (at which point such equity financing source will be considered a “Representative” hereunder). For the\navoidance of doubt, your “Representatives” shall only include such parties that actually receive Evaluation Material from you or at your direction.\n1\nIt is understood that you shall have two business days from the date of disclosure of the identity of the Company to inform Robert W. Baird &\nCo. Incorporated, via email, of whether you wish to receive any Evaluation Material about the Company. In the event that you elect not to\nreceive such information, you shall have no further obligation (other than under applicable securities laws) under this Agreement, other than a\nduty which you expressly confirm by signing and returning this Agreement to maintain as confidential for a period of one (1) year the identity of\nthe Company and the fact that we have been retained by the Company in connection with a possible Transaction.\nDuravant LLC\n10/9/17\nPage 2\nYou agree that you will use the Evaluation Material for evaluating a possible Transaction. You agree not to disclose any Evaluation Material to any\nperson, except that you may disclose Evaluation Material to your Representatives (who will be informed by you of the confidential nature of the\nEvaluation Material and will be bound by the confidentiality obligations applicable to the Evaluation Material) who are actively participating in your\nevaluation of a possible Transaction or who otherwise need to review the Evaluation Material for the purpose of evaluating a possible Transaction. You\nshall be responsible for any breach of the expressly applicable terms of this Agreement by you or any of your Representatives.\nYou agree that you and your Representatives will not disclose that discussions or negotiations are taking place concerning a possible Transaction or\nany of the terms, conditions or other facts with respect to any such Transaction, that the Company is considering a possible Transaction, that you have\nreceived Evaluation Material or that you are evaluating a potential Transaction, except to the extent you are advised by your counsel that you are\nrequired to do so under applicable law and then only after you have notified the Company (to the extent legally permissible and reasonably practicable)\nabout the information you propose to disclose. Without your prior written consent, the Company shall not disclose to any person or entity (a) that any\ninvestigations, discussions or negotiations are taking place concerning a Transaction involving the Company and you or (b) that you have requested or\nreceived any Evaluation Material.\nYou understand and agree that neither the Company nor any of its Representatives have made or make any representation or warranty, expressed or\nimplied, as to the accuracy or completeness of the Evaluation Material or shall have any liability whatsoever to you or any of your Representatives\nrelating to or resulting from the use of the Evaluation Material.\nIf you or any of your Representatives are requested or required to disclose any Evaluation Material in a legal proceeding, you will give the Company,\nto the extent legally permissible and reasonably practicable, prompt written notice of such request or requirement and reasonably cooperate with the\nCompany for it to seek, at the Company’s sole cost and expense, a protective order or other appropriate remedy. In the event that such protective order\nor other remedy is not obtained, you or your Representatives will disclose only that portion of the Evaluation Material which, upon the advice of your\ncounsel and after notifying the Company, is legally required to be disclosed. The Company acknowledges that one or more of your affiliates is a\nregistered investment adviser and that you may be subject to routine examinations, investigations, regulatory sweeps or other regulatory inquiries by\napplicable regulatory and self-regulatory authorities. The Company agrees that you may make such disclosures as may be requested by any such\nauthority (or examiner thereof) and will not be required to comply with the process described in this paragraph; provided that if the request by such\nauthority (or examiner thereof) is specifically targeted at the Company, you will notify the Company (to the extent not prohibited by such authority or\nexaminer or by applicable rule, regulation or law) as promptly as practicable following such request.\nIf the Company or Baird requests in writing at any time for any reason, you and your Representatives will promptly return to the Company or at your\noption, destroy, all copies of the Evaluation Material and destroy all Notes, in each case without retaining a copy thereof; provided, however, that one\ncopy of Evaluation Material and documentation prepared solely by you or on your behalf in connection with your evaluation of the Transaction\nhereunder shall be retained by you and your Representatives, subject to the confidentiality provisions herein, for regulatory purposes, to satisfy\nprofessional requirements or to comply with internal policies or guidelines.\nYou hereby acknowledge that you are aware, and that you will advise your Representatives, that the securities laws of the United States prohibit any\nperson who is aware of material non-public information concerning the Company or a possible Transaction involving the Company from purchasing or\nselling the Company’s securities or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities.\nDuravant LLC\n10/9/17\nPage 3\nYou agree that, for a period of twelve (12) months from the date of this Agreement you will not in any manner, directly or indirectly, without the prior\nwritten consent of the Company’s Board of Directors: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise,\nany voting securities or direct or indirect rights to acquire any voting securities of the Company, or of any successor to or person in control of the\nCompany, or any assets of the Company or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly,\nany “solicitation” of “proxies” to vote (as such terms are used in the rules of the Securities and Exchange Commission), or seek to advise or influence\nany person with respect to the voting of any voting securities of the Company; (iii) make any public announcement with respect to, or submit a\nproposal for, or offer of (with or without conditions) any extraordinary transaction involving the Company or any of its securities or assets; (iv) form,\njoin or in any way participate in a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any\nsecurities of the Company; (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or\npolicies of the Company; (vi) disclose any intention, plan or arrangement inconsistent with the foregoing; (vii) advise, assist or encourage any other\npersons in connection with any of the foregoing; (viii) take any action that might require the Company to make a public announcement regarding an\nextraordinary transaction involving the Company or any of its securities or assets; (ix) file any application with any regulatory authority seeking\napproval or authority in connection with any action described above; or (x) request the Company, its Board of Directors or any of its Representatives,\ndirectly or indirectly, to amend or waive any provision of this paragraph (including this sentence).\nYou agree that (i) the Company and Baird shall be free to conduct the process for a possible Transaction as they in their sole discretion shall determine\n(including, without limitation, negotiating with any prospective buyer and entering into definitive agreements without prior notice to you or any other\nperson), (ii) any procedures relating to such a Transaction may be changed at any time without notice to you or any other person, and (iii) the Company\nshall have the right to reject or accept any potential buyer, proposal or offer, or to terminate discussions and negotiations with you, at any time for any\nreason whatsoever, in its sole discretion.\nYou further agree that unless and until a definitive agreement between the Company and you with respect to any Transaction has been executed and\ndelivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to such Transaction by virtue of this\nAgreement except for the matters specifically agreed to herein.\nYou understand that Baird will arrange for appropriate contacts for due diligence purposes. You also agree that all (i) communications regarding a\npossible Transaction, (ii) requests for additional information, (iii) requests for facility tours or management meetings, and (iv) discussions or questions\nregarding procedures will be submitted or directed exclusively to Baird, unless otherwise agreed by the Company.\nYou agree, for a period of one year from the date of this Agreement, not to directly or indirectly solicit for employment any management employees of\nthe Company with whom you have come into significant contact during your review of the Transaction without the Company’s prior written consent.\nThe preceding sentence does not, however, prohibit you from making general solicitations for employment by means of advertisements, public notices,\nor internal or external websites or job search engines or professional placement agencies, and nothing herein shall prevent you from hiring any person\nwho contacts you on his or her own initiative with the purpose of seeking employment with you.\nThe parties agree that money damages may not be a sufficient remedy for any breach of this Agreement and that in addition to all other remedies the\nnon-breaching party may be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach. If any\nprovision or portion of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, in whole or in\npart, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by\napplicable law.\nDuravant LLC\n10/9/17\nPage 4\nThis Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware.\nYour non-disclosure obligations under this Agreement shall terminate on the first anniversary of the date of this Agreement.\nIf you are in agreement with the foregoing, please so indicate by signing, dating and returning one copy of this Agreement, which will constitute our\nagreement with respect to the matters set forth herein.\nDuravant LLC\n10/9/17\nPage 5\nVery truly yours,\nROBERT W. BAIRD & CO. INCORPORATED\nAs Agent for the Company\nBy: /s/ Michael Barina\nIts:\nDirector\nConfirmed and Agreed to:\nDURAVANT LLC\nBy: /s/ Carson Brennan\nIts:\nDirector of Business Development\nDate: 10/9/17	EX-99.(D)(2) 10 d527572dex99d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nOctober 9, 2017\nDuravant LL.C\n3500 Lacey Rd\nSuite 290\nDowners Grove, IL 60515\nAttention: Carson Brennan\nDirector of Business Development\nDear Carson:\nIn connection with your consideration of a possible transaction (the “Transaction”) involving the Company! and its Representatives (as defined\nbelow), including Robert W. Baird & Co. Incorporated (“Baird”) acting as the Company’s financial advisor in connection with the proposed\nTransaction, are prepared to make available to you certain information which is non-public, confidential or proprietary in nature. Baird is authorized to\nexecute this letter agreement (the “Agreement™) and provide information to you, on behalf of the Company.\nUpon your execution of this Agreement, Baird will disclose in writing (including via e-mail) the name of the Company. You agree that the term the\n“Company” as used throughout this Agreement shall have the meaning assigned to them by Baird in such disclosure and, accordingly, such meaning\nshall be binding on you.\nBy execution of this Agreement, you agree to treat confidentially any information that you or your Representatives may be provided by or on behalf of\nthe Company (collectively, the “Evaluation Material”). The term “Evaluation Material” shall also include all reports, analyses, notes or other\ninformation that are based on, contain or reflect any Evaluation Material (“Notes”). The term “Evaluation Material” does not include information that\n(i) is now or becomes available to participants in the Company’s industry or the public other than as a result of a disclosure by you or any of your\nRepresentatives, (ii) was available to or in the possession of you or your Representatives on a non-confidential basis prior to the disclosure of such\nEvaluation Material to you pursuant to this Agreement, provided that the source of such information was not known by you or any of your\nRepresentatives, after reasonable inquiry to be bound by a confidentiality obligation, (iii) becomes available to you or your Representatives on a\nnon-confidential basis from a source other than the Company or any of its Representatives, provided that such source is not known by you or any of\nyour Representatives, after reasonable inquiry, to be bound by a confidentiality obligation, (iv) is independently developed by or for you or your\nRepresentatives without use of the Evaluation Material, or (v) is a general concept, idea, or general research applicable to the Company’s industry. For\npurposes of this Agreement the “Representatives” of a person shall include the stockholders, owners, partners, limited partners (who may also serve as\na co-investor source), special limited partners, members, directors, managers, officers, principals, employees, agents, advisors (including, without\nlimitation, attorneys, accountants, consultants, bankers, debt financing sources, and financial advisors) and other professional representatives of such\nperson or such person’s Affiliates (as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended), but shall not include, in\nyour case, any equity financing source and you shall not disclose the Evaluation Material to any such equity financing source without first obtaining\nthe written consent of the Company to do so (at which point such equity financing source will be considered a “Representative” hereunder). For the\navoidance of doubt, your “Representatives” shall only include such parties that actually receive Evaluation Material from you or at your direction.\n1 It is understood that you shall have two business days from the date of disclosure of the identity of the Company to inform Robert W. Baird &\nCo. Incorporated, via email, of whether you wish to receive any Evaluation Material about the Company. In the event that you elect not to\nreceive such information, you shall have no further obligation (other than under applicable securities laws) under this Agreement, other than a\nduty which you expressly confirm by signing and returning this Agreement to maintain as confidential for a period of one (1) year the identity of\nthe Company and the fact that we have been retained by the Company in connection with a possible Transaction.\nDuravant LLC\n10/9/17\nPage 2\nYou agree that you will use the Evaluation Material for evaluating a possible Transaction. You agree not to disclose any Evaluation Material to any\nperson, except that you may disclose Evaluation Material to your Representatives (who will be informed by you of the confidential nature of the\nEvaluation Material and will be bound by the confidentiality obligations applicable to the Evaluation Material) who are actively participating in your\nevaluation of a possible Transaction or who otherwise need to review the Evaluation Material for the purpose of evaluating a possible Transaction. You\nshall be responsible for any breach of the expressly applicable terms of this Agreement by you or any of your Representatives.\nYou agree that you and your Representatives will not disclose that discussions or negotiations are taking place concerning a possible Transaction or\nany of the terms, conditions or other facts with respect to any such Transaction, that the Company is considering a possible Transaction, that you have\nreceived Evaluation Material or that you are evaluating a potential Transaction, except to the extent you are advised by your counsel that you are\nrequired to do so under applicable law and then only after you have notified the Company (to the extent legally permissible and reasonably practicable)\nabout the information you propose to disclose. Without your prior written consent, the Company shall not disclose to any person or entity (a) that any\ninvestigations, discussions or negotiations are taking place concerning a Transaction involving the Company and you or (b) that you have requested or\nreceived any Evaluation Material.\nYou understand and agree that neither the Company nor any of its Representatives have made or make any representation or warranty, expressed or\nimplied, as to the accuracy or completeness of the Evaluation Material or shall have any liability whatsoever to you or any of your Representatives\nrelating to or resulting from the use of the Evaluation Material.\nIf you or any of your Representatives are requested or required to disclose any Evaluation Material in a legal proceeding, you will give the Company,\nto the extent legally permissible and reasonably practicable, prompt written notice of such request or requirement and reasonably cooperate with the\nCompany for it to seek, at the Company’s sole cost and expense, a protective order or other appropriate remedy. In the event that such protective order\nor other remedy is not obtained, you or your Representatives will disclose only that portion of the Evaluation Material which, upon the advice of your\ncounsel and after notifying the Company, is legally required to be disclosed. The Company acknowledges that one or more of your affiliates is a\nregistered investment adviser and that you may be subject to routine examinations, investigations, regulatory sweeps or other regulatory inquiries by\napplicable regulatory and self-regulatory authorities. The Company agrees that you may make such disclosures as may be requested by any such\nauthority (or examiner thereof) and will not be required to comply with the process described in this paragraph; provided that if the request by such\nauthority (or examiner thereof) is specifically targeted at the Company, you will notify the Company (to the extent not prohibited by such authority or\nexaminer or by applicable rule, regulation or law) as promptly as practicable following such request.\nIf the Company or Baird requests in writing at any time for any reason, you and your Representatives will promptly return to the Company or at your\noption, destroy, all copies of the Evaluation Material and destroy all Notes, in each case without retaining a copy thereof; provided, however, that one\ncopy of Evaluation Material and documentation prepared solely by you or on your behalf in connection with your evaluation of the Transaction\nhereunder shall be retained by you and your Representatives, subject to the confidentiality provisions herein, for regulatory purposes, to satisfy\nprofessional requirements or to comply with internal policies or guidelines.\nYou hereby acknowledge that you are aware, and that you will advise your Representatives, that the securities laws of the United States prohibit any\nperson who is aware of material non-public information concerning the Company or a possible Transaction involving the Company from purchasing or\nselling the Company’s securities or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities.\nDuravant LLC\n10/9/17\nPage 3\nYou agree that, for a period of twelve (12) months from the date of this Agreement you will not in any manner, directly or indirectly, without the prior\nwritten consent of the Company’s Board of Directors: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise,\nany voting securities or direct or indirect rights to acquire any voting securities of the Company, or of any successor to or person in control of the\nCompany, or any assets of the Company or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly,\nany “solicitation” of “proxies” to vote (as such terms are used in the rules of the Securities and Exchange Commission), or seek to advise or influence\nany person with respect to the voting of any voting securities of the Company; (iii) make any public announcement with respect to, or submit a\nproposal for, or offer of (with or without conditions) any extraordinary transaction involving the Company or any of its securities or assets; (iv) form,\njoin or in any way participate in a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any\nsecurities of the Company; (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or\npolicies of the Company; (vi) disclose any intention, plan or arrangement inconsistent with the foregoing; (vii) advise, assist or encourage any other\npersons in connection with any of the foregoing; (viii) take any action that might require the Company to make a public announcement regarding an\nextraordinary transaction involving the Company or any of its securities or assets; (ix) file any application with any regulatory authority seeking\napproval or authority in connection with any action described above; or (x) request the Company, its Board of Directors or any of its Representatives,\ndirectly or indirectly, to amend or waive any provision of this paragraph (including this sentence).\nYou agree that (i) the Company and Baird shall be free to conduct the process for a possible Transaction as they in their sole discretion shall determine\n(including, without limitation, negotiating with any prospective buyer and entering into definitive agreements without prior notice to you or any other\nperson), (ii) any procedures relating to such a Transaction may be changed at any time without notice to you or any other person, and (iii) the Company\nshall have the right to reject or accept any potential buyer, proposal or offer, or to terminate discussions and negotiations with you, at any time for any\nreason whatsoever, in its sole discretion.\nYou further agree that unless and until a definitive agreement between the Company and you with respect to any Transaction has been executed and\ndelivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to such Transaction by virtue of this\nAgreement except for the matters specifically agreed to herein.\nYou understand that Baird will arrange for appropriate contacts for due diligence purposes. You also agree that all (i) communications regarding a\npossible Transaction, (ii) requests for additional information, (iii) requests for facility tours or management meetings, and (iv) discussions or questions\nregarding procedures will be submitted or directed exclusively to Baird, unless otherwise agreed by the Company.\nYou agree, for a period of one year from the date of this Agreement, not to directly or indirectly solicit for employment any management employees of\nthe Company with whom you have come into significant contact during your review of the Transaction without the Company’s prior written consent.\nThe preceding sentence does not, however, prohibit you from making general solicitations for employment by means of advertisements, public notices,\nor internal or external websites or job search engines or professional placement agencies, and nothing herein shall prevent you from hiring any person\nwho contacts you on his or her own initiative with the purpose of seeking employment with you.\nThe parties agree that money damages may not be a sufficient remedy for any breach of this Agreement and that in addition to all other remedies the\nnon-breaching party may be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach. If any\nprovision or portion of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, in whole or in\npart, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by\napplicable law.\nDuravant LLC\n10/9/17\nPage 4\nThis Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware.\nYour non-disclosure obligations under this Agreement shall terminate on the first anniversary of the date of this Agreement.\nIf you are in agreement with the foregoing, please so indicate by signing, dating and returning one copy of this Agreement, which will constitute our\nagreement with respect to the matters set forth herein.\nDuravant LLC\n10/9/17\nPage 5\nVery truly yours,\nROBERT W. BAIRD & CO. INCORPORATED\nAs Agent for the Company\nBy: /s/ Michael Barina\nIts: Director\nConfirmed and Agreed to:\nDURAVANT LLC\nBy: /s/ Carson Brennan\nIts: Director of Business Development\nDate: 10/9/17	EX-99.(D)(2) 10 1527572dex99d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nOctober 9, 2017\nDuravant LLC\n3500 Lacey Rd\nSuite 290\nDowners Grove, IL 60515\nAttention: Carson Brennan\nDirector of Business Development\nDear Carson:\nIn connection with your consideration of a possible transaction (the "Transaction") involving the Company and its Representatives (as defined\nbelow), including Robert W. Baird & Co. Incorporated ("Baird") acting as the Company's financial advisor in connection with the proposed\nTransaction, are prepared to make available to you certain information which is non-public, confidential or proprietary in nature. Baird is authorized to\nexecute this letter agreement (the "Agreement") and provide information to you, on behalf of the Company.\nUpon your execution of this Agreement, Baird will disclose in writing (including via e-mail) the name of the Company. You agree that the term the\n"Company" as used throughout this Agreement shall have the meaning assigned to them by Baird in such disclosure and, accordingly, such meaning\nshall be binding on you.\nBy execution of this Agreement, you agree to treat confidentially any information that you or your Representatives may be provided by or on behalf of\nthe Company (collectively, the "Evaluation Material"). The term "Evaluation Material" shall also include all reports, analyses, notes or other\ninformation that are based on, contain or reflect any Evaluation Material ("Notes"). The term "Evaluation Material" does not include information\nthat\n(i) is now or becomes available to participants in the Company's industry or the public other than as a result of a disclosure by you or any of your\nRepresentatives, (ii) was available to or in the possession of you or your Representatives on a non-confidential basis prior to the disclosure of such\nEvaluation Material to you pursuant to this Agreement, provided that the source of such information was not known by you or any of your\nRepresentatives, after reasonable inquiry to be bound by a confidentiality obligation, (iii) becomes available to you or your Representatives on\na\nnon-confidential basis from a source other than the Company or any of its Representatives, provided that such source is not known by you or any of\nyour Representatives, after reasonable inquiry, to be bound by a confidentiality obligation, (iv) is independently developed by or for you or your\nRepresentatives without use of the Evaluation Material, or (v) is a general concept, idea, or general research applicable to the Company's industry. For\npurposes of this Agreement the "Representatives" of a person shall include the stockholders, owners, partners, limited partners (who may also serve as\na co-investor source), special limited partners, members, directors, managers, officers, principals, employees, agents, advisors (including, without\nlimitation, attorneys, accountants, consultants, bankers, debt financing sources, and financial advisors) and other professional representatives of such\nperson or such person's Affiliates (as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended), but shall not include, in\nyour case, any equity financing source and you shall not disclose the Evaluation Material to any such equity financing source without first obtaining\nthe written consent of the Company to do so (at which point such equity financing source will be considered a "Representative" hereunder). For\nthe\navoidance of doubt, your "Representatives" shall only include such parties that actually receive Evaluation Material from you or at your direction.\n1\nIt is understood that you shall have two business days from the date of disclosure of the identity of the Company to inform Robert W. Baird\n&\nCo. Incorporated, via email, of whether you wish to receive any Evaluation Material about the Company. In the event that you elect not to\nreceive such information, you shall have no further obligation (other than under applicable securities laws) under this Agreement, other than a\nduty which you expressly confirm by signing and returning this Agreement to maintain as confidential for a period of one (1) year the identity of\nthe\nCompany and the fact that we have been retained by the Company in connection with a possible Transaction.\nDuravant LLC\n10/9/17\nPage 2\nYou agree that you will use the Evaluation Material for evaluating a possible Transaction. You agree not to disclose any Evaluation Material to any\nperson,\nexcept\nthat you may disclose Evaluation Material to your Representatives (who will be informed by you of the confidential nature of the\nevaluation of a possible Transaction or who otherwise need to review the Evaluation Material for the purpose of evaluating a possible Transaction. your You\nEvaluation Material and will be bound by the confidentiality obligations applicable to the Evaluation Material) who are actively participating in\nshall be responsible for any breach of the expressly applicable terms of this Agreement by you or any of your Representatives.\nYou agree that you and your Representatives will not disclose that discussions or negotiations are taking place concerning a possible Transaction or\nany\nof\nthe\nterms,\nconditions or other facts with respect to any such Transaction, that the Company is considering a possible Transaction, that you\nhave\nreceived Evaluation Material or that you are evaluating a potential Transaction, except to the extent you are advised by your counsel that you are\nrequired to do so under applicable law and then only after you have notified the Company (to the extent legally permissible and reasonably practicable)\nabout\nthe\ninformation\nyou\npropose\nto\ndisclose.\nWithout\nyour\nprior\nwritten\nconsent,\nthe\nCompany\nshall\nnot\ndisclose\nto\nany\nperson\nor\nentity\n(a)\nthat\nany\ninvestigations, discussions or negotiations are taking place concerning a Transaction involving the Company and you or (b) that you have requested\nor\nreceived any Evaluation Material.\nYou understand and agree that neither the Company nor any of its Representatives have made or make any representation or warranty, expressed or\nimplied, as to the accuracy or completeness of the Evaluation Material or shall have any liability whatsoever to you or any of your Representatives\nrelating to or resulting from the use of the Evaluation Material.\nIf you or any of your Representatives are requested or required to disclose any Evaluation Material in a legal proceeding, you will give the Company,\nto the extent legally permissible and reasonably practicable, prompt written notice of such request or requirement and reasonably cooperate with the\nCompany for it to seek, at the Company's sole cost and expense, a protective order or other appropriate remedy. In the event that such protective order\nor other remedy is not obtained, you or your Representatives will disclose only that portion of the Evaluation Material which, upon the advice of your\ncounsel and after notifying the Company, is legally required to be disclosed. The Company acknowledges that one or more of your affiliates is a\nregistered investment adviser and that you may be subject to routine examinations, investigations, regulatory sweeps or other regulatory inquiries\nby\napplicable regulatory and self-regulatory authorities. The Company agrees that you may make such disclosures as may be requested by any such\nauthority (or examiner thereof) and will not be required to comply with the process described in this paragraph; provided that if the request\nby\nsuch\nauthority (or examiner thereof) is specifically targeted at the Company, you will notify the Company (to the extent not prohibited by such authority\nor\nexaminer or by applicable rule, regulation or law) as promptly as practicable following such request.\nIf the Company or Baird requests in writing at any time for any reason, you and your Representatives will promptly return to the Company or at your\noption, destroy, all copies of the Evaluation Material and destroy all Notes, in each case without retaining a copy thereof; provided, however, that one\ncopy of Evaluation Material and documentation prepared solely by you or on your behalf in connection with your evaluation of the Transaction\nhereunder shall be retained by you and your Representatives, subject to the confidentiality provisions herein, for regulatory purposes, to satisfy\nprofessiona requirements or to comply with internal policies or guidelines.\nYou hereby acknowledge that you are aware, and that you will advise your Representatives, that the securities laws of the United States prohibit\nany\nperson who is aware of material non-public information concerning the Company or a possible Transaction involving the Company from purchasing\nor\nselling the Company's securities or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities.\nDuravant LLC\n10/9/17\nPage 3\nYou agree that, for a period of twelve (12) months from the date of this Agreement you will not in any manner, directly or indirectly, without the prior\nwritten consent of the Company's Board of Directors: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise,\nany voting securities or direct or indirect rights to acquire any voting securities of the Company, or of any successor to or person in control of the\nCompany, or any assets of the Company or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly,\nany "'solicitation" of "proxies" to vote (as such terms are used in the rules of the Securities and Exchange Commission), or seek to advise or influence\nany person with respect to the voting of any voting securities of the Company; (iii) make any public announcement with respect to, or submit a\nproposal for, or offer of (with or without conditions) any extraordinary transaction involving the Company or any of its securities or assets; (iv) form,\njoin or in any way participate in a "group" (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any\nsecurities of the Company; (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or\npolicies of the Company; (vi) disclose any intention, plan or arrangement inconsistent with the foregoing; (vii) advise, assist or encourage any other\npersons in connection with any of the foregoing; (viii) take any action that might require the Company to make a public announcement regarding\nan\nextraordinary transaction involving the Company or any of its securities or assets; (ix) file any application with any regulatory authority seeking\napproval or authority in connection with any action described above; or (x) request the Company, its Board of Directors or any of its Representatives,\ndirectly or indirectly, to amend or waive any provision of this paragraph (including this sentence).\nYou agree that (i) the Company and Baird shall be free to conduct the process for a possible Transaction as they in their sole discretion shall determine\n(including, without limitation, negotiating with any prospective buyer and entering into definitive agreements without prior notice to you or any other\nperson), (ii) any procedures relating to such a Transaction may be changed at any time without notice to you or any other person, and (iii) the Company\nshall have the right to reject or accept any potential buyer, proposal or offer, or to terminate discussions and negotiations with you, at any time for any\nreason whatsoever, in its sole discretion.\nYou further agree that unless and until a definitive agreement between the Company and you with respect to any Transaction has been executed and\ndelivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to such Transaction by virtue of\nthis\nAgreement except for the matters specifically agreed to herein.\nYou understand that Baird will arrange for appropriate contacts for due diligence purposes. You also agree that all (i) communications regarding\na\npossible Transaction, (ii) requests for additional information, (iii) requests for facility tours or management meetings, and (iv) discussions or questions\nregarding procedures will be submitted or directed exclusively to Baird, unless otherwise agreed by the Company.\nYou agree, for a period of one year from the date of this Agreement, not to directly or indirectly solicit for employment any management employees of\nthe Company with whom you have come into significant contact during your review of the Transaction without the Company's prior written consent.\nThe preceding sentence does not, however, prohibit you from making general solicitations for employment by means of advertisements, public notices,\nor internal or external websites or job search engines or professional placement agencies, and nothing herein shall prevent you from hiring any person\nwho contacts you on his or her own initiative with the purpose of seeking employment with you.\nThe parties agree that money damages may not be a sufficient remedy for any breach of this Agreement and that in addition to all other remedies\nthe\nnon-breaching party may be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach. If any\nprovision or portion of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, in whole or in\npart, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted\nby\napplicable law.\nDuravant LLC\n10/9/17\nPage 4\nThis Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware.\nYour non-disclosure obligations under this Agreement shall terminate on the first anniversary of the date of this Agreement.\nIf you are in agreement with the foregoing, please SO indicate by signing, dating and returning one copy of this Agreement, which will constitute our\nagreement with respect to the matters set forth herein.\nDuravant LLC\n10/9/17\nPage 5\nVery truly yours,\nROBERT W. BAIRD & CO. INCORPORATED\nAs Agent for the Company\nBy:\n/s/ Michael Barina\nIts:\nDirector\nConfirmed and Agreed to:\nDURAVANT LLC\nBy:\n/s/ Carson Brennan\nIts:\nDirector of Business Development\nDate: 10/9/17	EX-99.(D)(2) 10 d527572dex99d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nOctober 9, 2017\nDuravant LLC\n3500 Lacey Rd\nSuite 290\nDowners Grove, IL 60515\nAttention: Carson Brennan\nDirector of Business Development\nDear Carson:\nIn connection with your consideration of a possible transaction (the “Transaction”) involving the Company1 and its Representatives (as defined\nbelow), including Robert W. Baird & Co. Incorporated (“Baird”) acting as the Company’s financial advisor in connection with the proposed\nTransaction, are prepared to make available to you certain information which is non-public, confidential or proprietary in nature. Baird is authorized to\nexecute this letter agreement (the “Agreement”) and provide information to you, on behalf of the Company.\nUpon your execution of this Agreement, Baird will disclose in writing (including via e-mail) the name of the Company. You agree that the term the\n“Company” as used throughout this Agreement shall have the meaning assigned to them by Baird in such disclosure and, accordingly, such meaning\nshall be binding on you.\nBy execution of this Agreement, you agree to treat confidentially any information that you or your Representatives may be provided by or on behalf of\nthe Company (collectively, the “Evaluation Material”). The term “Evaluation Material” shall also include all reports, analyses, notes or other\ninformation that are based on, contain or reflect any Evaluation Material (“Notes”). The term “Evaluation Material” does not include information that\n(i) is now or becomes available to participants in the Company’s industry or the public other than as a result of a disclosure by you or any of your\nRepresentatives, (ii) was available to or in the possession of you or your Representatives on a non-confidential basis prior to the disclosure of such\nEvaluation Material to you pursuant to this Agreement, provided that the source of such information was not known by you or any of your\nRepresentatives, after reasonable inquiry to be bound by a confidentiality obligation, (iii) becomes available to you or your Representatives on a\nnon-confidential basis from a source other than the Company or any of its Representatives, provided that such source is not known by you or any of\nyour Representatives, after reasonable inquiry, to be bound by a confidentiality obligation, (iv) is independently developed by or for you or your\nRepresentatives without use of the Evaluation Material, or (v) is a general concept, idea, or general research applicable to the Company’s industry. For\npurposes of this Agreement the “Representatives” of a person shall include the stockholders, owners, partners, limited partners (who may also serve as\na co-investor source), special limited partners, members, directors, managers, officers, principals, employees, agents, advisors (including, without\nlimitation, attorneys, accountants, consultants, bankers, debt financing sources, and financial advisors) and other professional representatives of such\nperson or such person’s Affiliates (as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended), but shall not include, in\nyour case, any equity financing source and you shall not disclose the Evaluation Material to any such equity financing source without first obtaining\nthe written consent of the Company to do so (at which point such equity financing source will be considered a “Representative” hereunder). For the\navoidance of doubt, your “Representatives” shall only include such parties that actually receive Evaluation Material from you or at your direction.\n1\nIt is understood that you shall have two business days from the date of disclosure of the identity of the Company to inform Robert W. Baird &\nCo. Incorporated, via email, of whether you wish to receive any Evaluation Material about the Company. In the event that you elect not to\nreceive such information, you shall have no further obligation (other than under applicable securities laws) under this Agreement, other than a\nduty which you expressly confirm by signing and returning this Agreement to maintain as confidential for a period of one (1) year the identity of\nthe Company and the fact that we have been retained by the Company in connection with a possible Transaction.\nDuravant LLC\n10/9/17\nPage 2\nYou agree that you will use the Evaluation Material for evaluating a possible Transaction. You agree not to disclose any Evaluation Material to any\nperson, except that you may disclose Evaluation Material to your Representatives (who will be informed by you of the confidential nature of the\nEvaluation Material and will be bound by the confidentiality obligations applicable to the Evaluation Material) who are actively participating in your\nevaluation of a possible Transaction or who otherwise need to review the Evaluation Material for the purpose of evaluating a possible Transaction. You\nshall be responsible for any breach of the expressly applicable terms of this Agreement by you or any of your Representatives.\nYou agree that you and your Representatives will not disclose that discussions or negotiations are taking place concerning a possible Transaction or\nany of the terms, conditions or other facts with respect to any such Transaction, that the Company is considering a possible Transaction, that you have\nreceived Evaluation Material or that you are evaluating a potential Transaction, except to the extent you are advised by your counsel that you are\nrequired to do so under applicable law and then only after you have notified the Company (to the extent legally permissible and reasonably practicable)\nabout the information you propose to disclose. Without your prior written consent, the Company shall not disclose to any person or entity (a) that any\ninvestigations, discussions or negotiations are taking place concerning a Transaction involving the Company and you or (b) that you have requested or\nreceived any Evaluation Material.\nYou understand and agree that neither the Company nor any of its Representatives have made or make any representation or warranty, expressed or\nimplied, as to the accuracy or completeness of the Evaluation Material or shall have any liability whatsoever to you or any of your Representatives\nrelating to or resulting from the use of the Evaluation Material.\nIf you or any of your Representatives are requested or required to disclose any Evaluation Material in a legal proceeding, you will give the Company,\nto the extent legally permissible and reasonably practicable, prompt written notice of such request or requirement and reasonably cooperate with the\nCompany for it to seek, at the Company’s sole cost and expense, a protective order or other appropriate remedy. In the event that such protective order\nor other remedy is not obtained, you or your Representatives will disclose only that portion of the Evaluation Material which, upon the advice of your\ncounsel and after notifying the Company, is legally required to be disclosed. The Company acknowledges that one or more of your affiliates is a\nregistered investment adviser and that you may be subject to routine examinations, investigations, regulatory sweeps or other regulatory inquiries by\napplicable regulatory and self-regulatory authorities. The Company agrees that you may make such disclosures as may be requested by any such\nauthority (or examiner thereof) and will not be required to comply with the process described in this paragraph; provided that if the request by such\nauthority (or examiner thereof) is specifically targeted at the Company, you will notify the Company (to the extent not prohibited by such authority or\nexaminer or by applicable rule, regulation or law) as promptly as practicable following such request.\nIf the Company or Baird requests in writing at any time for any reason, you and your Representatives will promptly return to the Company or at your\noption, destroy, all copies of the Evaluation Material and destroy all Notes, in each case without retaining a copy thereof; provided, however, that one\ncopy of Evaluation Material and documentation prepared solely by you or on your behalf in connection with your evaluation of the Transaction\nhereunder shall be retained by you and your Representatives, subject to the confidentiality provisions herein, for regulatory purposes, to satisfy\nprofessional requirements or to comply with internal policies or guidelines.\nYou hereby acknowledge that you are aware, and that you will advise your Representatives, that the securities laws of the United States prohibit any\nperson who is aware of material non-public information concerning the Company or a possible Transaction involving the Company from purchasing or\nselling the Company’s securities or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities.\nDuravant LLC\n10/9/17\nPage 3\nYou agree that, for a period of twelve (12) months from the date of this Agreement you will not in any manner, directly or indirectly, without the prior\nwritten consent of the Company’s Board of Directors: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise,\nany voting securities or direct or indirect rights to acquire any voting securities of the Company, or of any successor to or person in control of the\nCompany, or any assets of the Company or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly,\nany “solicitation” of “proxies” to vote (as such terms are used in the rules of the Securities and Exchange Commission), or seek to advise or influence\nany person with respect to the voting of any voting securities of the Company; (iii) make any public announcement with respect to, or submit a\nproposal for, or offer of (with or without conditions) any extraordinary transaction involving the Company or any of its securities or assets; (iv) form,\njoin or in any way participate in a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any\nsecurities of the Company; (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or\npolicies of the Company; (vi) disclose any intention, plan or arrangement inconsistent with the foregoing; (vii) advise, assist or encourage any other\npersons in connection with any of the foregoing; (viii) take any action that might require the Company to make a public announcement regarding an\nextraordinary transaction involving the Company or any of its securities or assets; (ix) file any application with any regulatory authority seeking\napproval or authority in connection with any action described above; or (x) request the Company, its Board of Directors or any of its Representatives,\ndirectly or indirectly, to amend or waive any provision of this paragraph (including this sentence).\nYou agree that (i) the Company and Baird shall be free to conduct the process for a possible Transaction as they in their sole discretion shall determine\n(including, without limitation, negotiating with any prospective buyer and entering into definitive agreements without prior notice to you or any other\nperson), (ii) any procedures relating to such a Transaction may be changed at any time without notice to you or any other person, and (iii) the Company\nshall have the right to reject or accept any potential buyer, proposal or offer, or to terminate discussions and negotiations with you, at any time for any\nreason whatsoever, in its sole discretion.\nYou further agree that unless and until a definitive agreement between the Company and you with respect to any Transaction has been executed and\ndelivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to such Transaction by virtue of this\nAgreement except for the matters specifically agreed to herein.\nYou understand that Baird will arrange for appropriate contacts for due diligence purposes. You also agree that all (i) communications regarding a\npossible Transaction, (ii) requests for additional information, (iii) requests for facility tours or management meetings, and (iv) discussions or questions\nregarding procedures will be submitted or directed exclusively to Baird, unless otherwise agreed by the Company.\nYou agree, for a period of one year from the date of this Agreement, not to directly or indirectly solicit for employment any management employees of\nthe Company with whom you have come into significant contact during your review of the Transaction without the Company’s prior written consent.\nThe preceding sentence does not, however, prohibit you from making general solicitations for employment by means of advertisements, public notices,\nor internal or external websites or job search engines or professional placement agencies, and nothing herein shall prevent you from hiring any person\nwho contacts you on his or her own initiative with the purpose of seeking employment with you.\nThe parties agree that money damages may not be a sufficient remedy for any breach of this Agreement and that in addition to all other remedies the\nnon-breaching party may be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach. If any\nprovision or portion of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, in whole or in\npart, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by\napplicable law.\nDuravant LLC\n10/9/17\nPage 4\nThis Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware.\nYour non-disclosure obligations under this Agreement shall terminate on the first anniversary of the date of this Agreement.\nIf you are in agreement with the foregoing, please so indicate by signing, dating and returning one copy of this Agreement, which will constitute our\nagreement with respect to the matters set forth herein.\nDuravant LLC\n10/9/17\nPage 5\nVery truly yours,\nROBERT W. BAIRD & CO. INCORPORATED\nAs Agent for the Company\nBy: /s/ Michael Barina\nIts:\nDirector\nConfirmed and Agreed to:\nDURAVANT LLC\nBy: /s/ Carson Brennan\nIts:\nDirector of Business Development\nDate: 10/9/17
54f78c61bee16515a7acf82a5ba2ce1e.pdf	effective_date jurisdiction party term	EX-99.(E)(8) 2 dex99e8.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(8)\nMAXWELL SHOE COMPANY INC.\n101 SPRAGUE STREET, P.O. BOX 37\nREADVILLE (BOSTON), MA 02137-0037\nJune 8, 2004\nJones Apparel Group, Inc.\n250 Rittenhouse Circle\nBristol, Pennsylvania 19007\nAttention: Peter Boneparth\nMUTUAL CONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nThis confidentiality agreement (this “Agreement”) is entered into as of the date set forth above between Maxwell Shoe Company Inc., a Delaware\ncorporation (the “Maxwell”), and Jones Apparel Group, Inc. (“Jones”), a Pennsylvania corporation.\nIn connection with the consideration by each party hereto of a possible negotiated transaction, including, without limitation, a possible business\ncombination or other business transaction (a “Transaction”), with the other party hereto and/or its subsidiaries, affiliates or divisions (references\nherein to each “party” shall include subsidiaries, affiliates and divisions of such party), each party is prepared to make available to the other party\ncertain information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished\nto the other party and the other party’s directors, officers, employees, agents, representatives or advisors (including, without limitation, attorneys,\naccountants, consultants, bankers and financial advisors) (collectively, “Representatives”), each party agrees to treat any information concerning the\nother party (whether prepared by the other party, its advisors or otherwise and irrespective of the form of communication) which is or has been\nfurnished to the party or its Representatives by the other party or by the other party’s Representatives (herein collectively referred to as the\n“Evaluation Material”) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions hereinafter set\nforth.\nAccordingly, each party hereby agrees that:\n1. The term “Evaluation Material” shall include, without limitation, all financial, business, operating and other data, reports, interpretations,\nforecasts and records provided by each party or its Representatives concerning such party and all notes, analyses, compilations, studies,\ninterpretations and other documents prepared by the other party or its Representatives that contain, reflect or are based upon, in whole or in\npart, such information. The term “Evaluation Material” shall not include information that (i) is or becomes publicly known other than as a\nresult of a disclosure by the receiving party or its\nRepresentatives in breach of this Agreement, (ii) was in the receiving party’s possession prior to its being furnished to the receiving party by\nthe disclosing party or any of its Representatives, (iii) became available to the receiving party on a non-confidential basis from a source other\nthan the disclosing party or any of its Representatives, or (iv) consists of information furnished or obtained pursuant to and in accordance with\nthe license agreement, dated as of July 9, 1999 (as amended to date), between ANNE KLEIN, a division of Kasper, A.S .L ., Ltd., and Maxwell\nand to which Jones Investment Co. Inc. is currently a party (it being understood that such information shall be subject to the provisions of such\nlicense agreement), provided that in the case of (ii) and (iii) above, the source of the information is not, to the knowledge of the receiving\nparty, bound by a confidentiality agreement with, or any other contractual, legal or fiduciary obligation of confidentiality to, the disclosing\nparty or any other person with respect to the information.\n2. The Evaluation Material shall be kept confidential by each party and its Representatives and shall be used by each party and its\nRepresentatives solely for the purpose of evaluating a Transaction. Except as provided in, and in compliance with, paragraph 4 below, each\nparty and its Representatives shall not disclose any of the Evaluation Material to any person (including, without limitation, any joint-venturer\nor provider of equity or debt financing, prospective or otherwise, or any of their subsidiaries, affiliates or divisions or any directors, officers,\nemployees, agents, representatives or advisors of any of them (collectively, “Providers”)) in any manner whatsoever, provided that each party\nmay disclose the Evaluation Material (i) to the extent that the other party gives its prior written consent (provided that, upon the execution and\ndelivery of a definitive agreement between the parties regarding a Transaction, such prior written consent shall not be required with respect to\nany disclosure to a Provider of debt financing) and (ii) to such party’s Representatives that need to know information in the Evaluation\nMaterial for the sole purpose of evaluating a Transaction, so long as such Representatives agree to keep that information confidential in\naccordance with the terms of this Agreement. In any event, each party shall be responsible for a breach of this Agreement by its\nRepresentatives and, at its sole expense, shall take all reasonable actions, including court proceedings, to restrain its Representatives from\nprohibited or unauthorized disclosure or use of the Evaluation Material.\n3. Except as required by law, rule, regulation, court order, subpoena or other legal process, each party and its Representatives shall not, without\nthe prior written consent of the other party, disclose to any other person (including, without limitation, any Providers), other than such party’s\nRepresentatives that need to know such information for the sole purpose of evaluating a Transaction, so long as such Representatives agree to\nkeep that information confidential in accordance with the terms of this Agreement, (i) the fact that the Evaluation Material exists or has been\nmade available to it or its Representatives, (ii) that discussions or negotiations are taking place concerning a Transaction or involving the other\nparty with respect thereto or (iii) any of the terms, conditions or other facts with respect to a Transaction, including, without limitation, the\nstatus thereof or the subject matter of this Agreement. For purposes of this Agreement, the term “person” shall be broadly interpreted to\ninclude the media and any individual, corporation, partnership, group or other entity. Notwithstanding anything in this Agreement to the\ncontrary, the\n2\nparties agree and acknowledge that (a) a party may disclose matters that are described in clauses (i), (ii) and (iii) of this paragraph 3 if, upon\nthe advice of and after consultation with outside legal counsel, the party determines in good faith that such matters are required to be disclosed\npursuant to the requirements of applicable Federal securities laws, including the Securities Exchange Act of 1934, as amended (the “Exchange\nAct”), and the rules and regulations promulgated thereunder, and (b) the parties may disclose, and file with the Securities and Exchange\nCommission, this Agreement.\n4. If either party or any of its Representatives are requested by, or required by, court order, subpoena or other similar legal process, to disclose\nany of the Evaluation Material, it shall provide the other party with prompt written notice of any such request or requirement so that the other\nparty may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement, and in the\nabsence of such protective order or other remedy or the receipt of a waiver from the disclosing party, if the receiving party or any of its\nRepresentatives are, based upon the advice of legal counsel and in connection with any such request or requirement, legally obligated to\ndisclose any of the Evaluation Material, the receiving party or its Representatives may, without liability hereunder, disclose only such portion\nof the Evaluation Material that such legal counsel advises is legally required to be disclosed, provided that in that connection the receiving\nparty shall use its reasonable best efforts to preserve the confidentiality of such portion of the Evaluation Material, including, without\nlimitation, cooperating with the disclosing party to obtain an appropriate protective order or other reliable assurance that confidential treatment\nwill be accorded such portion of the Evaluation Material.\n5. If either party decides that it does not wish to proceed with a Transaction, it shall promptly inform the other party of that decision. In that case,\nor at any time upon the request of the disclosing party for any reason, the receiving party and its Representatives shall promptly destroy or\ndeliver to the disclosing party all Evaluation Material in its or its Representatives’ possession. Compliance by a receiving party and its\nRepresentatives with the preceding provisions regarding the destruction or return of Evaluation Material shall, upon the disclosing party’s\nrequest, be confirmed in writing to the disclosing party. Notwithstanding the destruction or return of the Evaluation Material, each party and its\nRepresentatives shall continue to be bound by its confidentiality and other obligations hereunder.\n6. Each party understands and acknowledges that neither party nor any of their Representatives or stockholders makes any representation or\nwarranty, express or implied, concerning the accuracy or completeness of the Evaluation Material. Each party agrees that neither party nor any\nof their Representatives or stockholders shall have any liability to the other party or to any of the other party’s Representatives or stockholders\nrelating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or\nwarranties that are made in a final definitive agreement regarding a Transaction, when, as and if executed and delivered, and subject to such\nlimitations and restrictions as may be specified therein, will have any legal effect.\n3\n7. For a period of two years from the date of this Agreement, neither party shall, without the prior written consent of the other party, directly or\nindirectly, solicit for employment any employee of the other party with whom a party had contact or who became known to such party in\nconnection with its consideration of a Transaction; provided, however, that the foregoing provision shall not prevent such party from\nemploying any such person who (i) initiates discussions regarding such employment without any direct or indirect solicitation by or\nencouragement from such party, (ii) responds to a general media advertisement or non-directed search inquiry or (iii) has been terminated by\nthe other party prior to commencement of employment discussions between such party and such person.\n8. Each party understands and agrees that no contract or agreement providing for any Transaction between them shall be deemed to exist between\nthem unless and until a final definitive agreement has been executed and delivered, and each party hereby waives, in advance, any claims\n(including, without limitation, breach of contract and tortious interference claims) in connection with any Transaction involving the other party\nunless and until the parties shall have entered into a final definitive agreement. Each party also agrees that unless and until a final definitive\nagreement regarding a Transaction between them has been executed and delivered, neither party shall be under any legal obligation of any kind\nwhatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Each party\nfurther acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals made to it or its\nRepresentatives with regard to a Transaction between the parties, and to terminate discussions and negotiations with the other party at any\ntime.\n9. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single\nor partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n10. Money damages are not an adequate remedy for a breach of this Agreement by either party or any of their Representatives, and the parties\nhereto shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. The parties further\nwaive any requirement for the securing or posting of a bond in connection with such equitable relief and acknowledge that equitable relief\nshall not be deemed to be the exclusive remedy for a breach of this Agreement but shall be in addition to all other remedies available at law or\nequity to the parties.\n11. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and no provision of this Agreement\nmay be amended, modified, superseded or waived, in whole or in part, nor any consent given, except by a separate written agreement or\ninstrument executed by the parties. In the event that any provision of this Agreement is held to be illegal or contrary to public policy or\notherwise unenforceable, that provision shall be deemed eliminated herefrom or modified to the extent necessary to make the provision\nenforceable and the validity, legality and enforceability of the remaining provisions of this Agreement (including such provision as modified)\nshall not in any way be affected or impaired thereby.\n4\n12. This Agreement shall benefit and bind successors and permitted assigns of the parties. Neither party may assign any of its rights or delegate\nany of its duties under this Agreement, including by operation of law, without the prior written consent of the other party, and any purported\nassignment not consented to shall be absolutely void and of no force and effect.\n13. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflict of law\nprovisions thereof. Each party hereto irrevocably and unconditionally submits to the non-exclusive jurisdiction of any State or Federal court\nsitting in New York City over any suit, action or proceeding arising out of or relating to this Agreement. Each party hereby agrees that service\nof any process, summons, notice or document by U.S. registered mail addressed to the address set forth on the first page of this Agreement\nshall be effective service of process for any action, suit or proceeding brought against it in any such court.\n14. This Agreement shall terminate upon the earlier of (i) the third anniversary of the date of this Agreement and (ii) the consummation of a\nTransaction.\n15. This Agreement may be executed by the parties hereto in counterparts, both of which, taken together, shall constitute one and the same\nAgreement.\n16. Nothing in this Agreement shall prevent either party from disclosing any information required by the proxy rules; provided, however, that this\nparagraph 16 shall not apply to financial projections (the disclosure of which financial projections shall require the prior written consent of the\nproviding party).\n[Signatures on following page.]\n5\nPlease confirm your agreement to the foregoing by signing and returning the accompanying copy of this Agreement, whereupon this Agreement\nshall become binding on the parties hereto and on their respective successors and permitted assignees.\nVery truly yours,\nMAXWELL SHOE COMPANY INC.\nBy:\n/s/ JAMES J. TINAGERO\nName: James J. Tinagero\nTitle: Chief Operating Officer, Executive\nVice President, Secretary\nAgreed as of the date\nfirst written above:\nJONES APPAREL GROUP, INC.\nBy:\n/s/ IRA M. DANSKY\nName: Ira M. Dansky\nTitle: Executive Vice President, General\nCounsel and Secretary\n6	EX-99.(E)(8) 2 dex99e8.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(8)\nMAXWELL SHOE COMPANY INC.\n101 SPRAGUE STREET, P.O. BOX 37\nREADVILLE (BOSTON), MA 02137-0037\nJune 8, 2004\nJones Apparel Group, Inc.\n250 Rittenhouse Circle\nBristol, Pennsylvania 19007\nAttention: Peter Boneparth\nMUTUAL CONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nThis confidentiality agreement (this “Agreement”) is entered into as of the date set forth above between Maxwell Shoe Company Inc., a Delaware\ncorporation (the “Maxwell”), and Jones Apparel Group, Inc. (“Jones”), a Pennsylvania corporation.\nIn connection with the consideration by each party hereto of a possible negotiated transaction, including, without limitation, a possible business\ncombination or other business transaction (a “Transaction”), with the other party hereto and/or its subsidiaries, affiliates or divisions (references\nherein to each “party” shall include subsidiaries, affiliates and divisions of such party), each party is prepared to make available to the other party\ncertain information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished\nto the other party and the other party’s directors, officers, employees, agents, representatives or advisors (including, without limitation, attorneys,\naccountants, consultants, bankers and financial advisors) (collectively, “Representatives”), each party agrees to treat any information concerning the\nother party (whether prepared by the other party, its advisors or otherwise and irrespective of the form of communication) which is or has been\nfurnished to the party or its Representatives by the other party or by the other party’s Representatives (herein collectively referred to as the\n“Evaluation Material”) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions hereinafter set\nforth.\nAccordingly, each party hereby agrees that:\n1. The term “Evaluation Material” shall include, without limitation, all financial, business, operating and other data, reports, interpretations,\nforecasts and records provided by each party or its Representatives concerning such party and all notes, analyses, compilations, studies,\ninterpretations and other documents prepared by the other party or its Representatives that contain, reflect or are based upon, in whole or in\npart, such information. The term “Evaluation Material” shall not include information that (i) is or becomes publicly known other than as a\nresult of a disclosure by the receiving party or its\nRepresentatives in breach of this Agreement, (ii) was in the receiving party’s possession prior to its being furnished to the receiving party by\nthe disclosing party or any of its Representatives, (iii) became available to the receiving party on a non-confidential basis from a source other\nthan the disclosing party or any of its Representatives, or (iv) consists of information furnished or obtained pursuant to and in accordance with\nthe license agreement, dated as of July 9, 1999 (as amended to date), between ANNE KLEIN, a division of Kasper, A.S.L., Ltd., and Maxwell\nand to which Jones Investment Co. Inc. is currently a party (it being understood that such information shall be subject to the provisions of such\nlicense agreement), provided that in the case of (ii) and (iii) above, the source of the information is not, to the knowledge of the receiving\nparty, bound by a confidentiality agreement with, or any other contractual, legal or fiduciary obligation of confidentiality to, the disclosing\nparty or any other person with respect to the information.\nThe Evaluation Material shall be kept confidential by each party and its Representatives and shall be used by each party and its\nRepresentatives solely for the purpose of evaluating a Transaction. Except as provided in, and in compliance with, paragraph 4 below, each\nparty and its Representatives shall not disclose any of the Evaluation Material to any person (including, without limitation, any joint-venturer\nor provider of equity or debt financing, prospective or otherwise, or any of their subsidiaries, affiliates or divisions or any directors, officers,\nemployees, agents, representatives or advisors of any of them (collectively, “Providers”)) in any manner whatsoever, provided that each party\nmay disclose the Evaluation Material (i) to the extent that the other party gives its prior written consent (provided that, upon the execution and\ndelivery of a definitive agreement between the parties regarding a Transaction, such prior written consent shall not be required with respect to\nany disclosure to a Provider of debt financing) and (ii) to such party’s Representatives that need to know information in the Evaluation\nMaterial for the sole purpose of evaluating a Transaction, so long as such Representatives agree to keep that information confidential in\naccordance with the terms of this Agreement. In any event, each party shall be responsible for a breach of this Agreement by its\nRepresentatives and, at its sole expense, shall take all reasonable actions, including court proceedings, to restrain its Representatives from\nprohibited or unauthorized disclosure or use of the Evaluation Material.\nExcept as required by law, rule, regulation, court order, subpoena or other legal process, each party and its Representatives shall not, without\nthe prior written consent of the other party, disclose to any other person (including, without limitation, any Providers), other than such party’s\nRepresentatives that need to know such information for the sole purpose of evaluating a Transaction, so long as such Representatives agree to\nkeep that information confidential in accordance with the terms of this Agreement, (i) the fact that the Evaluation Material exists or has been\nmade available to it or its Representatives, (ii) that discussions or negotiations are taking place concerning a Transaction or involving the other\nparty with respect thereto or (iii) any of the terms, conditions or other facts with respect to a Transaction, including, without limitation, the\nstatus thereof or the subject matter of this Agreement. For purposes of this Agreement, the term “person” shall be broadly interpreted to\ninclude the media and any individual, corporation, partnership, group or other entity. Notwithstanding anything in this Agreement to the\ncontrary, the\nparties agree and acknowledge that (a) a party may disclose matters that are described in clauses (i), (ii) and (iii) of this paragraph 3 if, upon\nthe advice of and after consultation with outside legal counsel, the party determines in good faith that such matters are required to be disclosed\npursuant to the requirements of applicable Federal securities laws, including the Securities Exchange Act of 1934, as amended (the “Exchange\nAct”), and the rules and regulations promulgated thereunder, and (b) the parties may disclose, and file with the Securities and Exchange\nCommission, this Agreement.\nIf either party or any of its Representatives are requested by, or required by, court order, subpoena or other similar legal process, to disclose\nany of the Evaluation Material, it shall provide the other party with prompt written notice of any such request or requirement so that the other\nparty may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement, and in the\nabsence of such protective order or other remedy or the receipt of a waiver from the disclosing party, if the receiving party or any of its\nRepresentatives are, based upon the advice of legal counsel and in connection with any such request or requirement, legally obligated to\ndisclose any of the Evaluation Material, the receiving party or its Representatives may, without liability hereunder, disclose only such portion\nof the Evaluation Material that such legal counsel advises is legally required to be disclosed, provided that in that connection the receiving\nparty shall use its reasonable best efforts to preserve the confidentiality of such portion of the Evaluation Material, including, without\nlimitation, cooperating with the disclosing party to obtain an appropriate protective order or other reliable assurance that confidential treatment\nwill be accorded such portion of the Evaluation Material.\nIf either party decides that it does not wish to proceed with a Transaction, it shall promptly inform the other party of that decision. In that case,\nor at any time upon the request of the disclosing party for any reason, the receiving party and its Representatives shall promptly destroy or\ndeliver to the disclosing party all Evaluation Material in its or its Representatives’ possession. Compliance by a receiving party and its\nRepresentatives with the preceding provisions regarding the destruction or return of Evaluation Material shall, upon the disclosing party’s\nrequest, be confirmed in writing to the disclosing party. Notwithstanding the destruction or return of the Evaluation Material, each party and its\nRepresentatives shall continue to be bound by its confidentiality and other obligations hereunder.\nEach party understands and acknowledges that neither party nor any of their Representatives or stockholders makes any representation or\nwarranty, express or implied, concerning the accuracy or completeness of the Evaluation Material. Each party agrees that neither party nor any\nof their Representatives or stockholders shall have any liability to the other party or to any of the other party’s Representatives or stockholders\nrelating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or\nwarranties that are made in a final definitive agreement regarding a Transaction, when, as and if executed and delivered, and subject to such\nlimitations and restrictions as may be specified therein, will have any legal effect.\n3\n10. 11. For a period of two years from the date of this Agreement, neither party shall, without the prior written consent of the other party, directly or\nindirectly, solicit for employment any employee of the other party with whom a party had contact or who became known to such party in\nconnection with its consideration of a Transaction; provided, however, that the foregoing provision shall not prevent such party from\nemploying any such person who (i) initiates discussions regarding such employment without any direct or indirect solicitation by or\nencouragement from such party, (ii) responds to a general media advertisement or non-directed search inquiry or (iii) has been terminated by\nthe other party prior to commencement of employment discussions between such party and such person.\nEach party understands and agrees that no contract or agreement providing for any Transaction between them shall be deemed to exist between\nthem unless and until a final definitive agreement has been executed and delivered, and each party hereby waives, in advance, any claims\n(including, without limitation, breach of contract and tortious interference claims) in connection with any Transaction involving the other party\nunless and until the parties shall have entered into a final definitive agreement. Each party also agrees that unless and until a final definitive\nagreement regarding a Transaction between them has been executed and delivered, neither party shall be under any legal obligation of any kind\nwhatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Each party\nfurther acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals made to it or its\nRepresentatives with regard to a Transaction between the parties, and to terminate discussions and negotiations with the other party at any\ntime.\nNo failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single\nor partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\nMoney damages are not an adequate remedy for a breach of this Agreement by either party or any of their Representatives, and the parties\nhereto shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. The parties further\nwaive any requirement for the securing or posting of a bond in connection with such equitable relief and acknowledge that equitable relief\nshall not be deemed to be the exclusive remedy for a breach of this Agreement but shall be in addition to all other remedies available at law or\nequity to the parties.\nThis Agreement contains the entire agreement between the parties with respect to the subject matter hereof and no provision of this Agreement\nmay be amended, modified, superseded or waived, in whole or in part, nor any consent given, except by a separate written agreement or\ninstrument executed by the parties. In the event that any provision of this Agreement is held to be illegal or contrary to public policy or\notherwise unenforceable, that provision shall be deemed eliminated herefrom or modified to the extent necessary to make the provision\nenforceable and the validity, legality and enforceability of the remaining provisions of this Agreement (including such provision as modified)\nshall not in any way be affected or impaired thereby.\n12. 13. 14. 15. 16. This Agreement shall benefit and bind successors and permitted assigns of the parties. Neither party may assign any of its rights or delegate\nany of its duties under this Agreement, including by operation of law, without the prior written consent of the other party, and any purported\nassignment not consented to shall be absolutely void and of no force and effect.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflict of law\nprovisions thereof. Each party hereto irrevocably and unconditionally submits to the non-exclusive jurisdiction of any State or Federal court\nsitting in New York City over any suit, action or proceeding arising out of or relating to this Agreement. Each party hereby agrees that service\nof any process, summons, notice or document by U.S. registered mail addressed to the address set forth on the first page of this Agreement\nshall be effective service of process for any action, suit or proceeding brought against it in any such court.\nThis Agreement shall terminate upon the earlier of (i) the third anniversary of the date of this Agreement and (ii) the consummation of a\nTransaction.\nThis Agreement may be executed by the parties hereto in counterparts, both of which, taken together, shall constitute one and the same\nAgreement.\nNothing in this Agreement shall prevent either party from disclosing any information required by the proxy rules; provided, however, that this\nparagraph 16 shall not apply to financial projections (the disclosure of which financial projections shall require the prior written consent of the\nproviding party).\n[Signatures on following page.]\n5\nPlease confirm your agreement to the foregoing by signing and returning the accompanying copy of this Agreement, whereupon this Agreement\nshall become binding on the parties hereto and on their respective successors and permitted assignees.\nVery truly yours,\nMAXWELL SHOE COMPANY INC.\nBy: /s/ JAMES J. TINAGERO\nName: James J. Tinagero\nTitle: Chief Operating Officer, Executive\nVice President, Secretary\nAgreed as of the date\nfirst written above:\nJONES APPAREL GROUP, INC.\nBy: /s/ IRA M. DANSKY\nName: Ira M. Dansky\nTitle: Executive Vice President, General\nCounsel and Secretary	X-99.(E)(8) 2 dex99e8.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(8)\nMAXWELL SHOE COMPANY INC.\n101 SPRAGUE STREET, P.O. BOX 37\nREADVILLE (BOSTON), MA 02137-0037\nJune 8, 2004\nJones Apparel Group, Inc.\n250 Rittenhouse Circle\nBristol, Pennsylvania 19007\nAttention: Peter Boneparth\nMUTUAL CONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nThis confidentiality agreement (this "Agreement") is entered into as of the date set forth above between Maxwell Shoe Company Inc., a Delaware\ncorporation (the "Maxwell"), and Jones Apparel Group, Inc. ("Jones"), a Pennsylvania corporation.\nIn connection with the consideration by each party hereto of a possible negotiated transaction, including, without limitation, a possible business\ncombination or other business transaction (a "Transaction"), with the other party hereto and/or its subsidiaries, affiliates or divisions (references\nherein to each "party" shall include subsidiaries, affiliates and divisions of such party), each party is prepared to make available to the other party\ncertain information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished\nto the other party and the other party's directors, officers, employees, agents, representatives or advisors (including, without limitation, attorneys,\naccountants, consultants, bankers and financial advisors) (collectively, "Representatives"), each party agrees to treat any information concerning the\nother party (whether prepared by the other party, its advisors or otherwise and irrespective of the form of communication) which is or has been\nfurnished to the party or its Representatives by the other party or by the other party's Representatives (herein collectively referred to as the\n"Evaluation Material") in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions hereinafter\nset\nforth.\nAccordingly, each party hereby agrees that:\n1.\nThe term "Evaluation Material" shall include, without limitation, all financial, business, operating and other data, reports, interpretations,\nforecasts and records provided by each party or its Representatives concerning such party and all notes, analyses, compilations, studies,\ninterpretations and other documents prepared by the other party or its Representatives that contain, reflect or are based upon, in whole or in\npart, such information. The term "Evaluation Material" shall not include information that (i) is or becomes publicly known other than as a\nresult of a disclosure by the receiving party or its\nRepresentatives in breach of this Agreement, (ii) was in the receiving party's possession prior to its being furnished to the receiving party by\nthe disclosing party or any of its Representatives, (iii) became available to the receiving party on a non-confidential basis from a source other\nthan the disclosing party or any of its Representatives, or (iv) consists of information furnished or obtained pursuant to and in accordance with\nthe license agreement, dated as of July 9, 1999 (as amended to date), between ANNE KLEIN, a division of Kasper, A.S.L., Ltd., and Maxwell\nand to which Jones Investment Co. Inc. is currently a party (it being understood that such information shall be subject to the provisions of such\nlicense agreement), provided that in the case of (ii) and (iii) above, the source of the information is not, to the knowledge of the receiving\nparty, bound by a confidentiality agreement with, or any other contractual, legal or fiduciary obligation of confidentiality to, the disclosing\nparty or any other person with respect to the information.\n2.\nThe Evaluation Material shall be kept confidential by each party and its Representatives and shall be used by each party and its\nRepresentatives solely for the purpose of evaluating a Transaction. Except as provided in, and in compliance with, paragraph 4 below, each\nparty and its Representatives shall not disclose any of the Evaluation Material to any person (including, without limitation, any joint-venturer\nor provider of equity or debt financing, prospective or otherwise, or any of their subsidiaries, affiliates or divisions or any directors, officers,\nemployees, agents, representatives or advisors of any of them (collectively, "Providers")) in any manner whatsoever, provided that each party\nmay disclose the Evaluation Material (i) to the extent that the other party gives its prior written consent (provided that, upon the execution and\ndelivery of a definitive agreement between the parties regarding a Transaction, such prior written consent shall not be required with respect to\nany disclosure to a Provider of debt financing) and (ii) to such party's Representatives that need to know information in the Evaluation\nMaterial for the sole purpose of evaluating a Transaction, so long as such Representatives agree to keep that information confidential in\naccordance with the terms of this Agreement. In any event, each party shall be responsible for a breach of this Agreement by its\nRepresentatives and, at its sole expense, shall take all reasonable actions, including court proceedings, to restrain its Representatives from\nprohibited or unauthorized disclosure or use of the Evaluation Material.\n3.\nExcept as required by law, rule, regulation, court order, subpoena or other legal process, each party and its Representatives shall not, without\nthe prior written consent of the other party, disclose to any other person (including, without limitation, any Providers), other than such party's\nRepresentatives that need to know such information for the sole purpose of evaluating a Transaction, so long as such Representatives agree to\nkeep that information confidential in accordance with the terms of this Agreement, (i) the fact that the Evaluation Material exists or has been\nmade available to it or its Representatives, (ii) that discussions or negotiations are taking place concerning a Transaction or involving the other\nparty with respect thereto or (iii) any of the terms, conditions or other facts with respect to a Transaction, including, without limitation, the\nstatus thereof or the subject matter of this Agreement. For purposes of this Agreement, the term "person" shall be broadly interpreted to\ninclude the media and any individual, corporation, partnership, group or other entity. Notwithstanding anything in this Agreement to the\ncontrary, the\n2\nparties agree and acknowledge that (a) a party may disclose matters that are described in clauses (i), (ii) and (iii) of this paragraph 3 if, upon\nthe advice of and after consultation with outside legal counsel, the party determines in good faith that such matters are required to be disclosed\npursuant to the requirements of applicable Federal securities laws, including the Securities Exchange Act of 1934, as amended (the "Exchange\nAct"), and the rules and regulations promulgated thereunder, and (b) the parties may disclose, and file with the Securities and Exchange\nCommission, this Agreement.\n4.\nIf either party or any of its Representatives are requested by, or required by, court order, subpoena or other similar legal process, to disclose\nany of the Evaluation Material, it shall provide the other party with prompt written notice of any such request or requirement so that the other\nparty may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement, and in the\nabsence of such protective order or other remedy or the receipt of a waiver from the disclosing party, if the receiving party or any of its\nRepresentatives are, based upon the advice of legal counsel and in connection with any such request or requirement, legally obligated to\ndisclose any of the Evaluation Material, the receiving party or its Representatives may, without liability hereunder, disclose only such portion\nof the Evaluation Material that such legal counsel advises is legally required to be disclosed, provided that in that connection the receiving\nparty shall use its reasonable best efforts to preserve the confidentiality of such portion of the Evaluation Material, including, without\nlimitation, cooperating with the disclosing party to obtain an appropriate protective order or other reliable assurance that confidential treatment\nwill be accorded such portion of the Evaluation Material.\n5.\nIf either party decides that it does not wish to proceed with a Transaction, it shall promptly inform the other party of that decision. In that case,\nor at any time upon the request of the disclosing party for any reason, the receiving party and its Representatives shall promptly destroy or\ndeliver to the disclosing party all Evaluation Material in its or its Representatives' possession. Compliance by a receiving party and its\nRepresentatives with the preceding provisions regarding the destruction or return of Evaluation Material shall, upon the disclosing party's\nrequest, be confirmed in writing to the disclosing party. Notwithstanding the destruction or return of the Evaluation Material, each party and its\nRepresentatives shall continue to be bound by its confidentiality and other obligations hereunder.\n6.\nEach party understands and acknowledges that neither party nor any of their Representatives or stockholders makes any representation or\nwarranty, express or implied, concerning the accuracy or completeness of the Evaluation Material. Each party agrees that neither party nor any\nof their Representatives or stockholders shall have any liability to the other party or to any of the other party's Representatives or stockholders\nrelating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or\nwarranties that are made in a final definitive agreement regarding a Transaction, when, as and if executed and delivered, and subject to such\nlimitations and restrictions as may be specified therein, will have any legal effect.\n3\n7.\nFor a period of two years from the date of this Agreement, neither party shall, without the prior written consent of the other party, directly\nor\nindirectly, solicit for employment any employee of the other party with whom a party had contact or who became known to such party in\nconnection with its consideration of a Transaction; provided, however, that the foregoing provision shall not prevent such party from\nemploying any such person who (i) initiates discussions regarding such employment without any direct or indirect solicitation by or\nencouragement from such party, (ii) responds to a general media advertisement or non-directed search inquiry or (iii) has been terminated by\nthe other party prior to commencement of employment discussions between such party and such person.\n8.\nEach party understands and agrees that no contract or agreement providing for any Transaction between them shall be deemed to exist between\nthem unless and until a final definitive agreement has been executed and delivered, and each party hereby waives, in advance, any claims\n(including, without limitation, breach of contract and tortious interference claims) in connection with any Transaction involving the other party\nunless and until the parties shall have entered into a final definitive agreement. Each party also agrees that unless and until a final definitive\nagreement regarding a Transaction between them has been executed and delivered, neither party shall be under any legal obligation of any kind\nwhatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Each party\nfurther acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals made to it or its\nRepresentatives with regard to a Transaction between the parties, and to terminate discussions and negotiations with the other party at any\ntime.\n9.\nNo failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single\nor partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n10. Money damages are not an adequate remedy for a breach of this Agreement by either party or any of their Representatives, and the parties\nhereto shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. The parties further\nwaive any requirement for the securing or posting of a bond in connection with such equitable relief and acknowledge that equitable relief\nshall not be deemed to be the exclusive remedy for a breach of this Agreement but shall be in addition to all other remedies available at law or\nequity to the parties\n11. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and no provision of this Agreement\nmay be amended, modified, superseded or waived, in whole or in part, nor any consent given, except by a separate written agreement or\ninstrument executed by the parties. In the event that any provision of this Agreement is held to be illegal or contrary to public policy\nor\notherwise unenforceable, that provision shall be deemed eliminated herefrom or modified to the extent necessary to make the provision\nenforceable and the validity, legality and enforceability of the remaining provisions of this Agreement (including such provision as modified)\nshall not in any way be affected or impaired thereby.\n4\n12. This Agreement shall benefit and bind successors and permitted assigns of the parties. Neither party may assign any of its rights or delegate\nany of its duties under this Agreement, including by operation of law, without the prior written consent of the other party, and any purported\nassignment not consented to shall be absolutely void and of no force and effect.\n13.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflict of law\nprovisions thereof. Each party hereto irrevocably and unconditionally submits to the non-exclusive jurisdiction of any State or Federal court\nsitting in New York City over any suit, action or proceeding arising out of or relating to this Agreement. Each party hereby agrees that service\nof any process, summons, notice or document by U.S. registered mail addressed to the address set forth on the first page of this Agreement\nshall be effective service of process for any action, suit or proceeding brought against it in any such court.\n14.\nThis Agreement shall terminate upon the earlier of (i) the third anniversary of the date of this Agreement and (ii) the consummation of a\nTransaction.\n15.\nThis Agreement may be executed by the parties hereto in counterparts, both of which, taken together, shall constitute one and the same\nAgreement.\n16.\nNothing in this Agreement shall prevent either party from disclosing any information required by the proxy rules; provided, however, that this\nparagraph 16 shall not apply to financial projections (the disclosure of which financial projections shall require the prior written consent of the\nproviding party).\n[Signatures on following page.]\n5\nPlease confirm your agreement to the foregoing by signing and returning the accompanying copy of this Agreement, whereupon this Agreement\nshall become binding on the parties hereto and on their respective successors and permitted assignees.\nVery truly yours,\nMAXWELL SHOE COMPANY INC.\nBy:\n/s/ JAMES J. TINAGERO\nName: James J. Tinagero\nTitle: Chief Operating Officer, Executive\nVice President, Secretary\nAgreed as of the date\nfirst written above:\nJONES APPAREL GROUP, INC.\nBy:\n/s/\nIRA M. DANSKY\nName: Ira M. Dansky\nTitle: Executive Vice President, General\nCounsel and Secretary\n6	EX-99.(E)(8) 2 dex99e8.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(8)\nMAXWELL SHOE COMPANY INC.\n101 SPRAGUE STREET, P.O. BOX 37\nREADVILLE (BOSTON), MA 02137-0037\nJune 8, 2004\nJones Apparel Group, Inc.\n250 Rittenhouse Circle\nBristol, Pennsylvania 19007\nAttention: Peter Boneparth\nMUTUAL CONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nThis confidentiality agreement (this “Agreement”) is entered into as of the date set forth above between Maxwell Shoe Company Inc., a Delaware\ncorporation (the “Maxwell”), and Jones Apparel Group, Inc. (“Jones”), a Pennsylvania corporation.\nIn connection with the consideration by each party hereto of a possible negotiated transaction, including, without limitation, a possible business\ncombination or other business transaction (a “Transaction”), with the other party hereto and/or its subsidiaries, affiliates or divisions (references\nherein to each “party” shall include subsidiaries, affiliates and divisions of such party), each party is prepared to make available to the other party\ncertain information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished\nto the other party and the other party’s directors, officers, employees, agents, representatives or advisors (including, without limitation, attorneys,\naccountants, consultants, bankers and financial advisors) (collectively, “Representatives”), each party agrees to treat any information concerning the\nother party (whether prepared by the other party, its advisors or otherwise and irrespective of the form of communication) which is or has been\nfurnished to the party or its Representatives by the other party or by the other party’s Representatives (herein collectively referred to as the\n“Evaluation Material”) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions hereinafter set\nforth.\nAccordingly, each party hereby agrees that:\n1. The term “Evaluation Material” shall include, without limitation, all financial, business, operating and other data, reports, interpretations,\nforecasts and records provided by each party or its Representatives concerning such party and all notes, analyses, compilations, studies,\ninterpretations and other documents prepared by the other party or its Representatives that contain, reflect or are based upon, in whole or in\npart, such information. The term “Evaluation Material” shall not include information that (i) is or becomes publicly known other than as a\nresult of a disclosure by the receiving party or its\nRepresentatives in breach of this Agreement, (ii) was in the receiving party’s possession prior to its being furnished to the receiving party by\nthe disclosing party or any of its Representatives, (iii) became available to the receiving party on a non-confidential basis from a source other\nthan the disclosing party or any of its Representatives, or (iv) consists of information furnished or obtained pursuant to and in accordance with\nthe license agreement, dated as of July 9, 1999 (as amended to date), between ANNE KLEIN, a division of Kasper, A.S .L ., Ltd., and Maxwell\nand to which Jones Investment Co. Inc. is currently a party (it being understood that such information shall be subject to the provisions of such\nlicense agreement), provided that in the case of (ii) and (iii) above, the source of the information is not, to the knowledge of the receiving\nparty, bound by a confidentiality agreement with, or any other contractual, legal or fiduciary obligation of confidentiality to, the disclosing\nparty or any other person with respect to the information.\n2. The Evaluation Material shall be kept confidential by each party and its Representatives and shall be used by each party and its\nRepresentatives solely for the purpose of evaluating a Transaction. Except as provided in, and in compliance with, paragraph 4 below, each\nparty and its Representatives shall not disclose any of the Evaluation Material to any person (including, without limitation, any joint-venturer\nor provider of equity or debt financing, prospective or otherwise, or any of their subsidiaries, affiliates or divisions or any directors, officers,\nemployees, agents, representatives or advisors of any of them (collectively, “Providers”)) in any manner whatsoever, provided that each party\nmay disclose the Evaluation Material (i) to the extent that the other party gives its prior written consent (provided that, upon the execution and\ndelivery of a definitive agreement between the parties regarding a Transaction, such prior written consent shall not be required with respect to\nany disclosure to a Provider of debt financing) and (ii) to such party’s Representatives that need to know information in the Evaluation\nMaterial for the sole purpose of evaluating a Transaction, so long as such Representatives agree to keep that information confidential in\naccordance with the terms of this Agreement. In any event, each party shall be responsible for a breach of this Agreement by its\nRepresentatives and, at its sole expense, shall take all reasonable actions, including court proceedings, to restrain its Representatives from\nprohibited or unauthorized disclosure or use of the Evaluation Material.\n3. Except as required by law, rule, regulation, court order, subpoena or other legal process, each party and its Representatives shall not, without\nthe prior written consent of the other party, disclose to any other person (including, without limitation, any Providers), other than such party’s\nRepresentatives that need to know such information for the sole purpose of evaluating a Transaction, so long as such Representatives agree to\nkeep that information confidential in accordance with the terms of this Agreement, (i) the fact that the Evaluation Material exists or has been\nmade available to it or its Representatives, (ii) that discussions or negotiations are taking place concerning a Transaction or involving the other\nparty with respect thereto or (iii) any of the terms, conditions or other facts with respect to a Transaction, including, without limitation, the\nstatus thereof or the subject matter of this Agreement. For purposes of this Agreement, the term “person” shall be broadly interpreted to\ninclude the media and any individual, corporation, partnership, group or other entity. Notwithstanding anything in this Agreement to the\ncontrary, the\n2\nparties agree and acknowledge that (a) a party may disclose matters that are described in clauses (i), (ii) and (iii) of this paragraph 3 if, upon\nthe advice of and after consultation with outside legal counsel, the party determines in good faith that such matters are required to be disclosed\npursuant to the requirements of applicable Federal securities laws, including the Securities Exchange Act of 1934, as amended (the “Exchange\nAct”), and the rules and regulations promulgated thereunder, and (b) the parties may disclose, and file with the Securities and Exchange\nCommission, this Agreement.\n4. If either party or any of its Representatives are requested by, or required by, court order, subpoena or other similar legal process, to disclose\nany of the Evaluation Material, it shall provide the other party with prompt written notice of any such request or requirement so that the other\nparty may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement, and in the\nabsence of such protective order or other remedy or the receipt of a waiver from the disclosing party, if the receiving party or any of its\nRepresentatives are, based upon the advice of legal counsel and in connection with any such request or requirement, legally obligated to\ndisclose any of the Evaluation Material, the receiving party or its Representatives may, without liability hereunder, disclose only such portion\nof the Evaluation Material that such legal counsel advises is legally required to be disclosed, provided that in that connection the receiving\nparty shall use its reasonable best efforts to preserve the confidentiality of such portion of the Evaluation Material, including, without\nlimitation, cooperating with the disclosing party to obtain an appropriate protective order or other reliable assurance that confidential treatment\nwill be accorded such portion of the Evaluation Material.\n5. If either party decides that it does not wish to proceed with a Transaction, it shall promptly inform the other party of that decision. In that case,\nor at any time upon the request of the disclosing party for any reason, the receiving party and its Representatives shall promptly destroy or\ndeliver to the disclosing party all Evaluation Material in its or its Representatives’ possession. Compliance by a receiving party and its\nRepresentatives with the preceding provisions regarding the destruction or return of Evaluation Material shall, upon the disclosing party’s\nrequest, be confirmed in writing to the disclosing party. Notwithstanding the destruction or return of the Evaluation Material, each party and its\nRepresentatives shall continue to be bound by its confidentiality and other obligations hereunder.\n6. Each party understands and acknowledges that neither party nor any of their Representatives or stockholders makes any representation or\nwarranty, express or implied, concerning the accuracy or completeness of the Evaluation Material. Each party agrees that neither party nor any\nof their Representatives or stockholders shall have any liability to the other party or to any of the other party’s Representatives or stockholders\nrelating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or\nwarranties that are made in a final definitive agreement regarding a Transaction, when, as and if executed and delivered, and subject to such\nlimitations and restrictions as may be specified therein, will have any legal effect.\n3\n7. For a period of two years from the date of this Agreement, neither party shall, without the prior written consent of the other party, directly or\nindirectly, solicit for employment any employee of the other party with whom a party had contact or who became known to such party in\nconnection with its consideration of a Transaction; provided, however, that the foregoing provision shall not prevent such party from\nemploying any such person who (i) initiates discussions regarding such employment without any direct or indirect solicitation by or\nencouragement from such party, (ii) responds to a general media advertisement or non-directed search inquiry or (iii) has been terminated by\nthe other party prior to commencement of employment discussions between such party and such person.\n8. Each party understands and agrees that no contract or agreement providing for any Transaction between them shall be deemed to exist between\nthem unless and until a final definitive agreement has been executed and delivered, and each party hereby waives, in advance, any claims\n(including, without limitation, breach of contract and tortious interference claims) in connection with any Transaction involving the other party\nunless and until the parties shall have entered into a final definitive agreement. Each party also agrees that unless and until a final definitive\nagreement regarding a Transaction between them has been executed and delivered, neither party shall be under any legal obligation of any kind\nwhatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Each party\nfurther acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals made to it or its\nRepresentatives with regard to a Transaction between the parties, and to terminate discussions and negotiations with the other party at any\ntime.\n9. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single\nor partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n10. Money damages are not an adequate remedy for a breach of this Agreement by either party or any of their Representatives, and the parties\nhereto shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. The parties further\nwaive any requirement for the securing or posting of a bond in connection with such equitable relief and acknowledge that equitable relief\nshall not be deemed to be the exclusive remedy for a breach of this Agreement but shall be in addition to all other remedies available at law or\nequity to the parties.\n11. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and no provision of this Agreement\nmay be amended, modified, superseded or waived, in whole or in part, nor any consent given, except by a separate written agreement or\ninstrument executed by the parties. In the event that any provision of this Agreement is held to be illegal or contrary to public policy or\notherwise unenforceable, that provision shall be deemed eliminated herefrom or modified to the extent necessary to make the provision\nenforceable and the validity, legality and enforceability of the remaining provisions of this Agreement (including such provision as modified)\nshall not in any way be affected or impaired thereby.\n4\n12. This Agreement shall benefit and bind successors and permitted assigns of the parties. Neither party may assign any of its rights or delegate\nany of its duties under this Agreement, including by operation of law, without the prior written consent of the other party, and any purported\nassignment not consented to shall be absolutely void and of no force and effect.\n13. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflict of law\nprovisions thereof. Each party hereto irrevocably and unconditionally submits to the non-exclusive jurisdiction of any State or Federal court\nsitting in New York City over any suit, action or proceeding arising out of or relating to this Agreement. Each party hereby agrees that service\nof any process, summons, notice or document by U.S. registered mail addressed to the address set forth on the first page of this Agreement\nshall be effective service of process for any action, suit or proceeding brought against it in any such court.\n14. This Agreement shall terminate upon the earlier of (i) the third anniversary of the date of this Agreement and (ii) the consummation of a\nTransaction.\n15. This Agreement may be executed by the parties hereto in counterparts, both of which, taken together, shall constitute one and the same\nAgreement.\n16. Nothing in this Agreement shall prevent either party from disclosing any information required by the proxy rules; provided, however, that this\nparagraph 16 shall not apply to financial projections (the disclosure of which financial projections shall require the prior written consent of the\nproviding party).\n[Signatures on following page.]\n5\nPlease confirm your agreement to the foregoing by signing and returning the accompanying copy of this Agreement, whereupon this Agreement\nshall become binding on the parties hereto and on their respective successors and permitted assignees.\nVery truly yours,\nMAXWELL SHOE COMPANY INC.\nBy:\n/s/ JAMES J. TINAGERO\nName: James J. Tinagero\nTitle: Chief Operating Officer, Executive\nVice President, Secretary\nAgreed as of the date\nfirst written above:\nJONES APPAREL GROUP, INC.\nBy:\n/s/ IRA M. DANSKY\nName: Ira M. Dansky\nTitle: Executive Vice President, General\nCounsel and Secretary\n6
580ee77ac3352f5e2399995955f47f79.pdf	effective_date jurisdiction party term	EX-99.2 3 dex992.htm CONFIDENTIALITY AND NON-SOLICITATION AGREEMENT\nExhibit 99.2\nCONFIDENTIALITY AND NON-SOLICITATION AGREEMENT\nTHIS CONFIDENTIALITY AND NON-SOLICITATION AGREEMENT, (“Agreement”) made as of the 20th day of April, 2006, by and between\nMellon Financial Corporation (“MFC”), and on behalf of Mellon Trust of New England, National Association (“Mellon Trust”), their parent\ncompanies, subsidiaries, affiliates, related entities, successors and assigns (collectively “Mellon”) and Ronald P. O’Hanley (hereinafter “O’Hanley”)\nin consideration of and as a condition precedent to the following additional compensation, the adequacy, sufficiency and receipt of which are hereby\nacknowledged, agree as follows:\nARTICLE 1: CONSIDERATION\nPursuant to the April 19, 2006 letter from Robert P. Kelly to O’Hanley, effective April 19, 2006, and in accordance with Section 19 of the January 1,\n2003 Employment Agreement between MFC and O’Hanley, the Employment Agreement was terminated. In accordance with the April 19, 2006\nletter which is incorporated by reference, as if fully set forth herein, in exchange for O’Hanley’s execution of this Agreement within thirty (30) days\nof his receipt of the package offered in the April 19, 2006 letter, and as a condition precedent to the package, Mellon agrees to provide O’Hanley\nwith the following:\n(a) Base Salary. O’Hanley’s annual base salary will be increased to $675,000 effective March 1, 2006. Thereafter, subject to annual review;\n(b) Mellon Financial Corporation (MFC) Profit Bonus Plan. O’Hanley’s bonus opportunity under the MFC Profit Bonus Plan will be in\naccordance with, and subject to, the terms of the Plan. O’Hanley’s annual bonus matrix is 300% of base salary at on-target performance, 400%\nof base salary at strong performance and 500% of base salary at outstanding performance. The matrix may be reviewed from time to time and\nadjusted accordingly;\n(c) Long-Term Incentive Award. (i) O’Hanley’s eligibility for an award under the Mellon Financial Corporation Long-Term Profit Incentive\nPlan (2004) (LTPIP) will be in accordance with, and subject to, the terms of the LTPIP as well as any individualized agreements that are\nrequired. O’Hanley’s LTPIP matrix is $1,687,500 for on-target performance, $2,250,000 for strong performance and $3,000,000 for\noutstanding performance. This matrix may be reviewed from time to time and adjusted accordingly; and (ii) O’Hanley will receive a special\none-time award under the LTPIP of $1,700,000 comprised of 40 percent stock options, 20 percent restricted stock, and 40 percent Total\nShareholder Return (“TSR”) performance shares. Award levels under the LTPIP and the Award are expressed in terms of McLagan valuation\nmethodology. Awards will be made utilizing Towers Perrin Long-Term Incentive Award calibration methodology;\n(d) Involuntary Separation of Employment. In the event that O’Hanley’s employment with Mellon involuntarily terminates due to either a\nWithout Cause Termination or a Constructive Discharge, as those terms are defined in the April 19, 2006 letter and provided that he executes a\nseparation agreement and general release of claims in a form acceptable to Mellon’s legal counsel, Mellon agrees to provide O’Hanley with the\nfollowing cash and non-cash benefits. If Mellon\ndetermines that it is necessary or appropriate for any payments, including benefits which cannot be provided on a nontaxable basis, to be\ndelayed in order to avoid additional tax, interest and/or penalties under Section 409A of the Internal Revenue Code (“Code”), then the\npayments and benefits would not be made before the date which is the first day following the six (6) month anniversary of the date of the\ninvoluntary separation (or upon earlier death).\n(i) Transition Pay. O’Hanley will receive seventy-eight (78) weeks of separation pay in an amount equivalent to his base salary in effect,\nless all applicable taxes and deductions (“Separation Pay Amount”). Such Separation Pay Amount shall be reduced by the full amount\nof the cash displacement pay benefits (before taxes and deductions) actually paid to him pursuant to the Mellon Financial Corporation\nDisplacement Program, Mellon Supplemental Unemployment Benefit Plan and/or Change in Control Agreement in effect and applicable\nto him and for which he is eligible. Such reduced amount shall be hereinafter referred to as “Transition Pay”. The time between the date\nupon which O’Hanley begins to receive Transition Pay and the date upon which his Transition Pay ceases will be the “Transition\nPeriod.” Subject to Mellon’s determination of a Code Section 409A delay, the first twelve (12) periodic installments will be delayed\nuntil the first day following the six (6) month anniversary of O’Hanley’s separation from service. After which, Transition Pay will be\npaid in periodic installments (with the first payment after the Code Section 409A delay including the prior installment payments) on\nregularly scheduled pay dates until the final installment of Transition Pay;\n(ii) Continued Health and Life Insurance Coverage. To the extent permissible under the law and the general terms and provisions of such\nplans or programs and in accordance with the provisions, thereof, O’Hanley will receive continuation of his existing health and life\ninsurance coverages (except short-term or long-term disability coverage) under Mellon’s benefit programs as such may be amended from\ntime-to-time under the same terms as such coverages are provided to similarly situated separated Mellon employees. Such coverages will\ncontinue until the earlier of: (i) the date he fails to pay any applicable employee premium; (ii) the end of the Transition Period; (iii) the\ndate Mellon discontinues the particular coverage(s) and/or options for all similarly situated separated employees; and/or (iv) his\nemployment with another entity or self-employment;\n(iii) MFC Profit Bonus Plan. Although awards under incentive plans are completely discretionary, in the year active employment ceases,\nmanagement will recommend that O’Hanley receive a bonus in the amount equal to the average of his prior two-year bonus annualized\nawards, less applicable taxes and deductions to be paid all in cash. The award will be prorated based upon the number of months worked\nin the calendar year in which his active employment ceases. Subject to Mellon’s determination of a Code Section 409A delay, the\npayment date will be no later than March 15 of the subsequent year; and\n(iv) Special Bonus Award. O’Hanley will receive a special bonus award equal to one and one-half times the average of his prior two-year\nbonus\n2of10\nannualized awards, less applicable taxes and deductions. The special bonus award will be paid all in cash 30 days following the last\nTransition Pay installment payment date.\nARTICLE 2: CONFIDENTIAL INFORMATION\n2.01 Definition of and Ownership of Confidential Information. O’Hanley recognizes, acknowledges and agrees that:\n(a) In the course of his employment by Mellon Trust and as a Vice Chairman of MFC he has had and it will be necessary for him to be given or\nhave access to and become informed of confidential or proprietary information which Mellon possesses or to which Mellon has rights, which\nrelates to Mellon and which is not generally known to the public or in the trade and is a competitive asset of Mellon, or information which\nconstitutes a “trade secret” of Mellon, as that term is defined by the Uniform Trade Secrets Act, as amended and approved by the National\nConference of Commissioners on Uniform State Laws in 1985, including without limitation, and regardless of whether such is original,\nduplicated, computerized, memorized, handwritten or in any other form: (i) Mellon’s planning data, records, observations and marketing\nstrategies or techniques, computer programs, system documentation, manuals, formulae, processes, operation methods, machines,\ncompositions; (ii) non-public terms of any new products, data bases, and investment strategies of Mellon, trading, arbitrage and/or hedging\ntechniques or strategies; (iii) non-public information relating to Mellon personnel matters; (iv) Mellon’s financial results and information about\nits business condition; (v) non-public terms of any investment, management or advisory agreement or other material contract of Mellon;\n(vi) Mellon’s proprietary software and related documents; (vii) Mellon’s customer and client and potential customer prospecting lists,\nidentifying information and contact persons at such customers and clients and prospects and Mellon Paid Channel (as hereinafter defined);\n(viii) non-public material information concerning Mellon’s clients or customers or their operations, condition (financial or otherwise); and\n(ix) patents, patents applications, copyrights, service marks and other intellectual property, Intellectual Property (as defined below)\n(collectively referred to herein as the “Confidential Information”);\n(b) Confidential Information shall not include information generally known to the public other than by virtue of a breach of this Agreement by\nO’Hanley, information rightfully known to O’Hanley without limitation on disclosure prior to its receipt from Mellon or a customer of Mellon,\ninformation rightfully received from a third party without limitation on disclosure and information generally made available by Mellon or a\nclient or customer of Mellon to third parties without restriction on disclosure; or information required to be disclosed by law, rule, regulation or\norder without an obligation of confidentiality on the part of the recipient, provided that prior to making any disclosure under this clause\nO’Hanley shall, if permissible under the law, rule or regulation, provide Mellon with notice and the opportunity to contest such disclosure; and\n(c) The Confidential Information has been developed or acquired by Mellon with significant expenditures of time, effort and money and is\nunique and cannot be lawfully duplicated or easily acquired. The Confidential Information is the sole and\n3of10\nexclusive property of Mellon (and in some cases the property of a customer of Mellon), regardless of its form or format and whether compiled\nor created by O’Hanley or Mellon. Mellon takes all reasonable measures to maintain its confidentiality and to guard its secrecy. The\nConfidential Information is not generally known outside Mellon and within Mellon this information is confidential and used only on a “need to\nknow” basis. The Confidential Information is unique and cannot be lawfully duplicated or easily acquired. O’Hanley agrees that the\nConfidential Information is deserving of trade secret status and protection, as that term is defined by the Uniform Trade Secrets Act, as\namended and approved by the National Conference of Commissioners on Uniform State Laws in 1985.\n2.02 Use of Confidential Information. O’Hanley agrees that the use, except for the sole purpose of conducting business on behalf of Mellon or with\nprior written consent of Mellon, misappropriation or disclosure of the Confidential Information would constitute a breach of trust and could cause\nirreparable injury to Mellon.\n2.03 Nondisclosure of Confidential Information. O’Hanley agrees that it is essential to the protection of Mellon’s goodwill and to the maintenance of\nMellon’s competitive position that the Confidential Information be kept secret and O’Hanley agrees not to disclose the Confidential Information to\nothers or use the Confidential Information to O’Hanley’s own advantage or the advantage of others either during employment or at any time\nthereafter.\n2.04 Return of Mellon Property. O’Hanley agrees that upon the termination of employment, for any reason or no reason, or at any other time Mellon\nmay request, that O’Hanley will immediately return to Mellon all Confidential Information and all of its property, including without limitation, all\ndocuments (including copies) and information, however maintained (including computer files, tapes, and recordings), concerning Mellon or acquired\nby O’Hanley in the course and scope of employment (excluding only those documents relating solely to O’Hanley’s own salary and benefits). In\naddition, O’Hanley agrees that he will delete, all information concerning Mellon’s business, customers and prospective customers, including\ncustomer contact information (e.g., names, addresses and telephone numbers), from his personal computer devices, including laptops, cellular\nphones, palm pilots and similar devices.\n2.05 Performance Record. O’Hanley understands, acknowledges and agrees that the investment performance record (including without limitation\nperformance ratings or rankings provided by any rating or ranking service) of any fund(s) or accounts of Mellon customers with which he is\nassociated while employed at Mellon is attributable to teams of professionals of Mellon and not solely the efforts of any single individual and that,\ntherefore, the performance records of the fund(s) or accounts managed by Mellon are and shall be the exclusive property of Mellon.\nARTICLE 3: NON-SOLICITATION OF ACCOUNTS AND EMPLOYEES\n3.01 Non-solicitation of Clients or Customers. O’Hanley covenants and agrees that during his employment with Mellon and for a period of twelve\n(12) months following the termination of his employment, for any reason or no reason, including but not limited to resignation of employment, that\n(“Restricted Period”), O’Hanley, whether directly or indirectly, in any capacity whatsoever (whether as proprietor, partner, investor, shareholder,\ndirector, officer,\n4of10\nemployer, consultant, independent contractor, co-venturer, financier, agent, representative or otherwise) shall not:\n(a) provide or assist with the provision of Relevant Financial Services to a Client or Customer of Mellon, except as an employee of Mellon,\nprovided that this Article 3 does not prohibit O’Hanley from being employed by or affiliated or associated with any person or entity after\ntermination of his employment with Mellon so long as he does not have any involvement on behalf of any person or entity with respect to\nsoliciting, managing, administering, supporting or retaining the Relevant Financial Services business provided or proposed to be provided to a\nCustomer or Client of Mellon; and/or\n(b) (i) solicit by mail, phone, personal meeting, or by any other means, either directly or indirectly, the business or patronage of any Customer\nor Client of Mellon for himself or any other person or entity other than Mellon for the purpose of providing Relevant Financial Services;\n(ii) divert, entice, or otherwise take away from Mellon the business or patronage of any Customer or Client of Mellon, or attempt to do so; or\n(iii) solicit or induce any Customer or Client of Mellon to terminate or reduce its relationship with Mellon.\n3.02 Non-solicitation of Employees. O’Hanley covenants and agrees that during his employment with Mellon and during the Restricted Period that\nhe shall not, directly or indirectly, hire or employ, recruit solicit or induce, or attempt to hire, recruit solicit or induce, (or in any way assist another\nperson or enterprise in recruiting, soliciting or inducing) any employee of Mellon to leave Mellon or any affiliate for any reason whatsoever.\n3.03 Reasonableness of Restricted Period. O’Hanley acknowledges and agrees that the Restricted Period is reasonable and valid in duration and\nscope and in all other respects. O’Hanley also represents that his experience and capabilities are such that the enforcement of the provisions of this\nAgreement will not prevent him from earning a livelihood, and he acknowledges that it would cause Mellon serious and irreparable injury and cost if\nhe were to use his ability and knowledge in competition with Mellon or to otherwise breach the obligations contained in this Agreement.\n3.04 Extension of Restricted Period. O’Hanley agrees that the nonsolicitation obligations contained in this Agreement shall be extended by the\nlength of time during which he shall have been in breach of any of the provisions.\n3.05 Definitions. O’Hanley understands that for the purposes of this Agreement:\n(a) “Relevant Financial Services” shall mean: (i) institutional asset and investment management and related advisory services; (ii) international\nasset and investment management and related advisory services; (iii) mutual fund management and related advisory services; and (iv) and any\nother services or products provided by Mellon from time to time which are within the scope of O’Hanley’s responsibilities or at any time\nduring the twelve (12) months preceding the termination of his employment were within the scope of his responsibilities; and\n(b) “Customer” or “Client” of Mellon means any person or entity who (i) is receiving Relevant Financial Services from Mellon, or (ii) on the\ndate of termination of his employment with Mellon or its parent, subsidiary, affiliate related entity or\n5of10\nsuccessor received such services for compensation at any time during the one (1) year period immediately preceding the date of termination of\nhis employment, or (iii) O’Hanley solicited, directly or indirectly, in whole or in part, on behalf of Mellon to provide financial services within\none (1) year preceding the termination of his employment.\nARTICLE 4: DUTY OF LOYALTY\n4.01 Duty of Loyalty to Mellon. O’Hanley agrees that at all times during his employment by Mellon and in his position as Vice Chairman of MFC,\nhe owes Mellon a duty of loyalty and a duty to act in good faith. O’Hanley agrees that during his employment he will not individually, or in\ncombination with any other employer, employee or competitor of Mellon, violate or breach the terms of this agreement, Code of Conduct or Mellon\nSecurities Trading Policy.\n4.02 Cooperation. O’Hanley agrees that upon the termination of his employment, for any reason or no reason, including but not limited to\nresignation of employment, that he will cooperate with Mellon, upon reasonable notice and at reasonable times, in the prosecution and defense of\ncomplaints, investigations, litigation, arbitration and mediation of any complaints, claims or actions or regulatory review now in existence or that\nmay be threatened or brought in the future relating to events or occurrences that transpired while employed by Mellon or as Vice Chairman of MFC.\nO’Hanley also agrees that upon Mellon’s request, he will certify that he is in compliance with this Agreement.\n4.03 Prior Employer Restrictions. O’Hanley warrants that he is not subject or party to any agreement, understanding or undertaking that would\nprevent or restrict him from performing his employment duties or working with or on behalf of any customer or client. In addition, O’Hanley\nwarrants that his employment with Mellon does not violate any agreement, understanding or undertaking. Still further, O’Hanley agrees that he will\nnot in the course of performing duties for Mellon violate any confidentiality obligations that he may owe to others.\n4.04 Disclosure of Agreement. O’Hanley acknowledges and agrees to disclose the existence and terms of this Agreement so long as and to the extent\nthat such terms remain in effect to any prospective employer, partner or co-venturer prior to entering into an employment, partnership, or other\nbusiness relationship with such person or entity.\nARTICLE 5: SPECIAL, UNIQUE AND EXTRAORDINARY SERVICES\nO’Hanley acknowledges and agrees that in performing the job duties of his position that he provides Mellon with a special, unique and extraordinary\nservice.\n6of10\nARTICLE 6: WORKS FOR HIRE; PROPRIETARY DEVELOPMENT\n6.01 Property of Mellon. O’Hanley understands and agrees that any and all rights or interests that O’Hanley holds or obtains in any inventions,\nproducts, discoveries, processes, methods, computer software programs, models, techniques, formulae, designs, trade secrets, client, supplier, and\nvendor lists, sales and marketing plans, inventions, discoveries, improvements, copyrights, works of authorship, patent rights, trademarks or service\nmarks, and developments of any kind whatsoever, which are authored, conceived, reduced to practice, made, developed or created (alone or in\nconjunction with others, during regular hours of work otherwise) or otherwise obtained by O’Hanley during employment with Mellon or in the\nperformance of his duties as a Vice Chair of MFC which may directly or directly be useful in or relate to or arise out of such employment with\nMellon are expressly regarded as the exclusive property of Mellon or “works for hire” (the “Intellectual Property” ). The term Intellectual Property\ndoes not include inventions, products, discoveries, processes, methods, computer software programs, models, techniques, formulae, designs, trade\nsecrets, client, supplier, and vendor lists, sales and marketing plans, inventions, discoveries, improvements, copyrights, works of authorship, patent\nrights, trademarks or service marks which were in the possession of O’Hanley prior to his employment by Mellon and which were not obtained from\nor through Mellon.\n6.02 Disclosure; Assignment. O’Hanley agrees to promptly disclose to Mellon any and all such Inventions and deliver to Mellon, upon its\nrequest, a written description of such Intellectual Property and any available documentary or other materials evidencing such Intellectual Property.\nO’Hanley hereby assigns to Mellon the sole and exclusive right to such Intellectual Property and waives any license or other special right which\nO’Hanley may have or accrue therein, and that, upon request of Mellon, O’Hanley will execute and deliver any and all documents or instruments and\ntake any other action which Mellon shall deem necessary to assign to and vest completely in it, to perfect trademark, trade secret, copyright and\npatent protection with respect to, or to otherwise protect Mellon’s trade secrets and proprietary interest in, such Intellectual Property. O’Hanley will\nalso upon Mellon’s request, execute any documents necessary or advisable in the opinion of Mellon’s counsel to direct the issuance of patents,\ntrademarks or copyrights to Mellon or its designated affiliate with respect to such Intellectual Property as are to be Mellon’s exclusive property or to\nvest in Mellon title to such Intellectual Property, the expense of securing any patent, trademark or copyright, however, to be borne by Mellon.\nO’Hanley will hold for sole benefit of Mellon any Intellectual Property which is to be its exclusive property for which no patent, trademark or\ncopyright is issued.\n6.03 Survival. These obligations bind O’Hanley’s heirs and legal representatives and shall continue beyond the termination of O’Hanley’s\nemployment, regardless of reason, with respect to such Intellectual Property conceived of, reduced to practice, or developed by O’Hanley during the\nterm of employment with Mellon.\n6.04 Fees. Mellon agrees to pay any and all copyright, trademark and patent fees and expenses or other costs incurred by O’Hanley for any\nassistance rendered to Mellon pursuant to this Article 6 and to promptly reimburse O’Hanley for all expenses incurred by O’Hanley in perfecting its\nproperty rights in the Inventions. O’Hanley’s obligations to assign Inventions shall not apply to any invention about which O’Hanley can prove that:\n(i) the invention was developed entirely on O’Hanley’s own time and effort; (ii) no equipment, supplies, facilities, resources, trade secrets or\nconfidential information of Mellon was used in\n7of10\nthe development of the invention; (iii) the invention does not relate to the business of Mellon or to Mellon’s actual or anticipated research and\ndevelopment; and (iv) the invention does not result from any work otherwise performed by O’Hanley for Mellon.\nARTICLE 7: REMEDIES\n7.01 Injunctive Relief. O’Hanley agrees that any breach or threatened breach of any of the covenants contained in the Agreement would cause\nimmediate, material and irreparable harm to Mellon and that money damages would not provide an adequate remedy for Mellon to protect and\npreserve the status quo. Therefore, O’HANLEY CONSENTS TO THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER or A\nPRELIMINARY or PERMANENT INJUNCTION ordering that:\n(a) O’Hanley immediately return to Mellon all property and Confidential Information, whether original, duplicated, computerized,\nhandwritten, or in any other form whatsoever, and that O’Hanley be enjoined and restrained from using or disclosing any information\ncontained in such records; and\n(b) For a period of twelve (12) months, O’Hanley be enjoined and restrained from soliciting any client or customer whom O’Hanley served\nor whose name became known to O’Hanley while employed by Mellon or in the performance of his duties with Mellon, in any office\nand in any capacity; and\n(c) For a period of twelve (12) months, O’Hanley be enjoined and restrained from hiring, soliciting, or inducing any employee of Mellon to\nleave Mellon.\n7.02 O’Hanley agrees that Mellon shall have all of the rights and remedies available under law, or in equity, including, but not limited to, injunctive\nrelief, to a party enforcing any such covenant each of such rights and remedies to be independent of the other and severally enforceable including,\nbut not limited to, the right to have such covenants specifically enforced, and the right to require any violating party to account for and pay over to\nMellon all benefits derived or received by such violating party, or any of its subsidiaries or affiliates, as a result of any such breach of covenant.\n7.03 Jurisdiction. For purposes of Article 7, O’Hanley agrees to submit to, and confer exclusive jurisdiction on, the United States District Court or\nthe State Court, which has original jurisdiction for the judicial district, Pittsburgh Pennsylvania or county in which O’Hanley last worked in the\nUnited States for Mellon.\nARTICLE 8: EMPLOYMENT AT WILL\nNOTHING HEREIN IS A PROMISE OF EMPLOYMENT FOR A FIXED TERM. O’HANLEY AGREES THAT HE REMAINS AT ALL TIMES\nAN EMPLOYEE AT WILL. MELLON MAY TERMINATE O’HANLEY’S EMPLOYMENT FOR ANY REASON OR FOR NO REASON, JUST\nAS O’HANLEY MAY RESIGN AT ANY TIME.\n8of10\nARTICLE 9: ASSIGNMENT\nO’Hanley expressly acknowledges and agrees that Mellon may assign this Agreement, and its rights and obligations hereunder, to any other\nindividual, entity or organization that is a direct or indirect subsidiary of Mellon or which acquires (whether by purchase, merger, consolidation or\notherwise) all or substantially all of the business of Mellon, in either case without O’Hanley’s consent and without the necessity that this Agreement\nbe re-signed at the time of such transfer, and the term “Mellon” shall be deemed to include such entity or organization to which this Agreement is\nassigned. Any such transfer shall not in and of itself constitute a termination of O’Hanley’s employment by Mellon.\nARTICLE 10: MISCELLANEOUS\n10.01 Reasonableness; Severability. O’Hanley agrees that the covenants set forth herein are necessary and reasonable to protect Mellon’s\nConfidential Information, goodwill and business interests and therefore, valid in duration, geography and scope and in all other respects. If any court\nor tribunal determines that any of such covenants, or any part thereof, are invalid or unenforceable, the remaining covenants shall not thereby be\naffected and they shall be given full effect, without regard to the invalid portions. If any court or tribunal determined that all, or any part of the\ncovenants contained herein are unenforceable, because of the duration or scope of such provision, or for any other reason, such court or tribunal is\ndirected to reduce the duration or scope of such provision, as the case may be, so that, in its reduced form, such provision shall then be enforceable.\nIf any provision or provisions hereof shall be deemed invalid or unenforceable either in whole or in part, this Agreement shall be deemed amended\nto delete or modify, as necessary, the offending provision or provisions and to alter the bounds thereof in order to render it valid and enforceable.\n10.02 Additional Obligations. O’Hanley agrees that the obligations in this Agreement are in addition to and not in limitation or preemption of, all\nother obligations or prior agreements prior to the effective date of this Agreement, he has with Mellon under general or specific legal or equitable\nprinciples or its Code of Conduct or Securities Trading Policy or general or specific legal or equitable principles.\n10.03 Time to Consider Agreement. O’HANLEY ACKNOWLEDGES AND AGREES THAT HE HAS READ AND REVIEWED THIS\nAGREEMENT IN ITS ENTIRETY AND HAS BEEN GIVEN AN OPPORTUNITY TO CONSIDER THE AGREEMENT AND TO ASK\nMELLON QUESTIONS ABOUT IT. O’HANLEY ALSO AGREES THAT HE HAS BEEN GIVEN AN OPPORTUNITY TO CONSULT WITH\nAN ATTORNEY OF HIS CHOICE PRIOR TO EXECUTING THE AGREEMENT. BY EXECUTING THE AGREEMENT, O’HANLEY\nEXPRESSLY ACKNOWLEDGES THAT HE FULLY UNDERSTANDS THE TERMS OF THIS AGREEMENT AND KNOWINGLY AND\nFREELY AGREES TO ABIDE BY THEM.\n10.04 Governing Law. This Agreement shall be deemed to be made and entered into in the Commonwealth of Pennsylvania, and shall in all respects\nbe interpreted, enforced and governed under the laws of said Commonwealth.\n9of10\n10.05 Survival. O’Hanley acknowledges and agrees that the covenants and the restrictions contained in this Agreement are intended to protect\nMellon’s interest in its Confidential Information and its commercial relationships and goodwill with its customers, prospective customers, vendors,\nsuppliers, consultants and employees. O’Hanley acknowledges and agrees that the covenants and the restrictions contained in this Agreement shall\ncontinue in accordance with the express terms hereof regardless of any changes in title, position, duties, salary, compensation, benefits or other terms\nand conditions of employment, and shall survive the termination of O’Hanley’s employment.\n10.06 Headings. The underlined headings contained in this Agreement are for convenience of reference only and shall not affect the interpretation or\nconstruction of any provision hereof.\n4/20/2006\n/s/ Ronald P. O’Hanley\nDate\nRonald P. O’Hanley\n4/18/2006\nMellon Financial Corporation\nDate\nBy: /s/ Michael E. Bleier\nMichael E. Bleier,\nGeneral Counsel\n10of10	EX-99.2 3 dex992.htm CONFIDENTIALITY AND NON-SOLICITATION AGREEMENT\nExhibit 99.2\nCONFIDENTIALITY AND NON-SOLICITATION AGREEMENT\nTHIS CONFIDENTIALITY AND NON-SOLICITATION AGREEMENT, (“Agreement”) made as of the 20th day of April, 2006, by and between\nMellon Financial Corporation (“MFC”), and on behalf of Mellon Trust of New England, National Association (“Mellon Trust”), their parent\ncompanies, subsidiaries, affiliates, related entities, successors and assigns (collectively “Mellon”) and Ronald P. O’Hanley (hereinafter “O’Hanley”)\nin consideration of and as a condition precedent to the following additional compensation, the adequacy, sufficiency and receipt of which are hereby\nacknowledged, agree as follows:\nARTICLE 1: CONSIDERATION\nPursuant to the April 19, 2006 letter from Robert P. Kelly to O’Hanley, effective April 19, 2006, and in accordance with Section 19 of the January 1,\n2003 Employment Agreement between MFC and O’Hanley, the Employment Agreement was terminated. In accordance with the April 19, 2006\nletter which is incorporated by reference, as if fully set forth herein, in exchange for O’Hanley’s execution of this Agreement within thirty (30) days\nof his receipt of the package offered in the April 19, 2006 letter, and as a condition precedent to the package, Mellon agrees to provide O’Hanley\nwith the following:\n(a) Base Salary. O’Hanley’s annual base salary will be increased to $675,000 effective March 1, 2006. Thereafter, subject to annual review;\n(b) Mellon Financial Corporation (MFC)_Profit Bonus Plan. O’Hanley’s bonus opportunity under the MFC Profit Bonus Plan will be in\naccordance with, and subject to, the terms of the Plan. O’Hanley’s annual bonus matrix is 300% of base salary at on-target performance, 400%\nof base salary at strong performance and 500% of base salary at outstanding performance. The matrix may be reviewed from time to time and\nadjusted accordingly;\n \n(c) Long-Term Incentive Award. (i) O’Hanley’s eligibility for an award under the Mellon Financial Corporation Long-Term Profit Incentive\nPlan (2004) (LTPIP) will be in accordance with, and subject to, the terms of the LTPIP as well as any individualized agreements that are\nrequired. O’Hanley’s LTPIP matrix is $1,687,500 for on-target performance, $2,250,000 for strong performance and $3,000,000 for\noutstanding performance. This matrix may be reviewed from time to time and adjusted accordingly; and (ii) O’Hanley will receive a special\none-time award under the LTPIP of $1,700,000 comprised of 40 percent stock options, 20 percent restricted stock, and 40 percent Total\nShareholder Return (“TSR”) performance shares. Award levels under the LTPIP and the Award are expressed in terms of McLagan valuation\nmethodology. Awards will be made utilizing Towers Perrin Long-Term Incentive Award calibration methodology;\nWithout Cause Termination or a Constructive Discharge, as those terms are defined in the April 19, 2006 letter and provided that he executes a\nseparation agreement and general release of claims in a form acceptable to Mellon’s legal counsel, Mellon agrees to provide O’Hanley with the\nfollowing cash and non-cash benefits. If Mellon\ndetermines that it is necessary or appropriate for any payments, including benefits which cannot be provided on a nontaxable basis, to be\ndelayed in order to avoid additional tax, interest and/or penalties under Section 409A of the Internal Revenue Code (“Code”), then the\npayments and benefits would not be made before the date which is the first day following the six (6) month anniversary of the date of the\ninvoluntary separation (or upon earlier death).\n(i) Transition Pay. O’Hanley will receive seventy-eight (78) weeks of separation pay in an amount equivalent to his base salary in effect,\nless all applicable taxes and deductions (“Separation Pay Amount”). Such Separation Pay Amount shall be reduced by the full amount\nof the cash displacement pay benefits (before taxes and deductions) actually paid to him pursuant to the Mellon Financial Corporation\nDisplacement Program, Mellon Supplemental Unemployment Benefit Plan and/or Change in Control Agreement in effect and applicable\nto him and for which he is eligible. Such reduced amount shall be hereinafter referred to as “Transition Pay”. The time between the date\nupon which O’Hanley begins to receive Transition Pay and the date upon which his Transition Pay ceases will be the “Transition\nPeriod.” Subject to Mellon’s determination of a Code Section 409A delay, the first twelve (12) periodic installments will be delayed\nuntil the first day following the six (6) month anniversary of O’Hanley’s separation from service. After which, Transition Pay will be\npaid in periodic installments (with the first payment after the Code Section 409A delay including the prior installment payments) on\nregularly scheduled pay dates until the final installment of Transition Pay;\n(ii) Continued Health and Life Insurance Coverage. To the extent permissible under the law and the general terms and provisions of such\nplans or programs and in accordance with the provisions, thereof, O’Hanley will receive continuation of his existing health and life\ninsurance coverages (except short-term or long-term disability coverage) under Mellon’s benefit programs as such may be amended from\ntime-to-time under the same terms as such coverages are provided to similarly situated separated Mellon employees. Such coverages will\ncontinue until the earlier of: (i) the date he fails to pay any applicable employee premium; (ii) the end of the Transition Period; (iii) the\ndate Mellon discontinues the particular coverage(s) and/or options for all similarly situated separated employees; and/or (iv) his\nemployment with another entity or self-employment;\n(iii) MFC Profit Bonus Plan. Although awards under incentive plans are completely discretionary, in the year active employment ceases,\nmanagement will recommend that O’Hanley receive a bonus in the amount equal to the average of his prior two-year bonus annualized\nawards, less applicable taxes and deductions to be paid all in cash. The award will be prorated based upon the number of months worked\nin the calendar year in which his active employment ceases. Subject to Mellon’s determination of a Code Section 409A delay, the\npayment date will be no later than March 15 of the subsequent year; and\n(iv) Special Bonus Award. O’Hanley will receive a special bonus award equal to one and one-half times the average of his prior two-year\nbonus\n20f 10\nannualized awards, less applicable taxes and deductions. The special bonus award will be paid all in cash 30 days following the last\nTransition Pay installment payment date.\nARTICLE 2: CONFIDENTIAL INFORMATION\n2.01 Definition of and Ownership of Confidential Information. O’Hanley recognizes, acknowledges and agrees that:\n(a) In the course of his employment by Mellon Trust and as a Vice Chairman of MFC he has had and it will be necessary for him to be given or\nhave access to and become informed of confidential or proprietary information which Mellon possesses or to which Mellon has rights, which\nrelates to Mellon and which is not generally known to the public or in the trade and is a competitive asset of Mellon, or information which\nconstitutes a “trade secret” of Mellon, as that term is defined by the Uniform Trade Secrets Act, as amended and approved by the National\nConference of Commissioners on Uniform State Laws in 1985, including without limitation, and regardless of whether such is original,\nduplicated, computerized, memorized, handwritten or in any other form: (i) Mellon’s planning data, records, observations and marketing\nstrategies or techniques, computer programs, system documentation, manuals, formulae, processes, operation methods, machines,\ncompositions; (ii) non-public terms of any new products, data bases, and investment strategies of Mellon, trading, arbitrage and/or hedging\ntechniques or strategies; (iii) non-public information relating to Mellon personnel matters; (iv) Mellon’s financial results and information about\nits business condition; (v) non-public terms of any investment, management or advisory agreement or other material contract of Mellon;\n(vi) Mellon’s proprietary software and related documents; (vii) Mellon’s customer and client and potential customer prospecting lists,\nidentifying information and contact persons at such customers and clients and prospects and Mellon Paid Channel (as hereinafter defined);\n(viii) non-public material information concerning Mellon’s clients or customers or their operations, condition (financial or otherwise); and\n(ix) patents, patents applications, copyrights, service marks and other intellectual property, Intellectual Property (as defined below)\n(collectively referred to herein as the “Confidential Information”);\n(b) Confidential Information shall not include information generally known to the public other than by virtue of a breach of this Agreement by\nO’Hanley, information rightfully known to O’Hanley without limitation on disclosure prior to its receipt from Mellon or a customer of Mellon,\ninformation rightfully received from a third party without limitation on disclosure and information generally made available by Mellon or a\nclient or customer of Mellon to third parties without restriction on disclosure; or information required to be disclosed by law, rule, regulation or\norder without an obligation of confidentiality on the part of the recipient, provided that prior to making any disclosure under this clause\nO’Hanley shall, if permissible under the law, rule or regulation, provide Mellon with notice and the opportunity to contest such disclosure; and\n(c) The Confidential Information has been developed or acquired by Mellon with significant expenditures of time, effort and money and is\nunique and cannot be lawfully duplicated or easily acquired. The Confidential Information is the sole and\n30of10\nexclusive property of Mellon (and in some cases the property of a customer of Mellon), regardless of its form or format and whether compiled\nor created by O’Hanley or Mellon. Mellon takes all reasonable measures to maintain its confidentiality and to guard its secrecy. The\nConfidential Information is not generally known outside Mellon and within Mellon this information is confidential and used only on a “need to\nknow” basis. The Confidential Information is unique and cannot be lawfully duplicated or easily acquired. O’Hanley agrees that the\nConfidential Information is deserving of trade secret status and protection, as that term is defined by the Uniform Trade Secrets Act, as\namended and approved by the National Conference of Commissioners on Uniform State Laws in 1985.\n2.02 Use of Confidential Information. O’Hanley agrees that the use, except for the sole purpose of conducting business on behalf of Mellon or with\nprior written consent of Mellon, misappropriation or disclosure of the Confidential Information would constitute a breach of trust and could cause\nirreparable injury to Mellon.\n2.03 Nondisclosure of Confidential Information. O’Hanley agrees that it is essential to the protection of Mellon’s goodwill and to the maintenance of\nMellon’s competitive position that the Confidential Information be kept secret and O’Hanley agrees not to disclose the Confidential Information to\nothers or use the Confidential Information to O’Hanley’s own advantage or the advantage of others either during employment or at any time\nthereafter.\n2.04 Return of Mellon Property. O’Hanley agrees that upon the termination of employment, for any reason or no reason, or at any other time Mellon\nmay request, that O’Hanley will immediately return to Mellon all Confidential Information and all of its property, including without limitation, all\ndocuments (including copies) and information, however maintained (including computer files, tapes, and recordings), concerning Mellon or acquired\nby O’Hanley in the course and scope of employment (excluding only those documents relating solely to O’Hanley’s own salary and benefits). In\naddition, O’Hanley agrees that he will delete, all information concerning Mellon’s business, customers and prospective customers, including\ncustomer contact information (e.g., names, addresses and telephone numbers), from his personal computer devices, including laptops, cellular\nphones, palm pilots and similar devices.\n2.05 Performance Record. O’Hanley understands, acknowledges and agrees that the investment performance record (including without limitation\nperformance ratings or rankings provided by any rating or ranking service) of any fund(s) or accounts of Mellon customers with which he is\nassociated while employed at Mellon is attributable to teams of professionals of Mellon and not solely the efforts of any single individual and that,\ntherefore, the performance records of the fund(s) or accounts managed by Mellon are and shall be the exclusive property of Mellon.\nARTICLE 3: NON-SOLICITATION OF ACCOUNTS AND EMPLOYEES\n3.01 Non-solicitation of Clients or Customers. O’Hanley covenants and agrees that during his employment with Mellon and for a period of twelve\n(12) months following the termination of his employment, for any reason or no reason, including but not limited to resignation of employment, that\n(“Restricted Period”), O’Hanley, whether directly or indirectly, in any capacity whatsoever (whether as proprietor, partner, investor, shareholder,\ndirector, officer,\n4 of 10\nemployer, consultant, independent contractor, co-venturer, financier, agent, representative or otherwise) shall not:\n(a) provide or assist with the provision of Relevant Financial Services to a Client or Customer of Mellon, except as an employee of Mellon,\nprovided that this Article 3 does not prohibit O’Hanley from being employed by or affiliated or associated with any person or entity after\ntermination of his employment with Mellon so long as he does not have any involvement on behalf of any person or entity with respect to\nsoliciting, managing, administering, supporting or retaining the Relevant Financial Services business provided or proposed to be provided to a\nCustomer or Client of Mellon; and/or\n(b) (i) solicit by mail, phone, personal meeting, or by any other means, either directly or indirectly, the business or patronage of any Customer\nor Client of Mellon for himself or any other person or entity other than Mellon for the purpose of providing Relevant Financial Services;\n(ii) divert, entice, or otherwise take away from Mellon the business or patronage of any Customer or Client of Mellon, or attempt to do so; or\n(iii) solicit or induce any Customer or Client of Mellon to terminate or reduce its relationship with Mellon.\n3.02 Non-solicitation of Employees. O’Hanley covenants and agrees that during his employment with Mellon and during the Restricted Period that\nhe shall not, directly or indirectly, hire or employ, recruit solicit or induce, or attempt to hire, recruit solicit or induce, (or in any way assist another\nperson or enterprise in recruiting, soliciting or inducing) any employee of Mellon to leave Mellon or any affiliate for any reason whatsoever.\n3.03 Reasonableness of Restricted Period. O’Hanley acknowledges and agrees that the Restricted Period is reasonable and valid in duration and\nscope and in all other respects. O’Hanley also represents that his experience and capabilities are such that the enforcement of the provisions of this\nAgreement will not prevent him from earning a livelihood, and he acknowledges that it would cause Mellon serious and irreparable injury and cost if\nhe were to use his ability and knowledge in competition with Mellon or to otherwise breach the obligations contained in this Agreement.\n3.04 Extension of Restricted Period. O’Hanley agrees that the nonsolicitation obligations contained in this Agreement shall be extended by the\nlength of time during which he shall have been in breach of any of the provisions.\n3.05 Definitions. O’Hanley understands that for the purposes of this Agreement:\n(a) “Relevant Financial Services” shall mean: (i) institutional asset and investment management and related advisory services; (ii) international\nasset and investment management and related advisory services; (iii) mutual fund management and related advisory services; and (iv) and any\nother services or products provided by Mellon from time to time which are within the scope of O’Hanley’s responsibilities or at any time\nduring the twelve (12) months preceding the termination of his employment were within the scope of his responsibilities; and\n(b) “Customer” or “Client” of Mellon means any person or entity who (i) is receiving Relevant Financial Services from Mellon, or (ii) on the\ndate of termination of his employment with Mellon or its parent, subsidiary, affiliate related entity or\n50f 10\nsuccessor received such services for compensation at any time during the one (1) year period immediately preceding the date of termination of\nhis employment, or (iii) O’Hanley solicited, directly or indirectly, in whole or in part, on behalf of Mellon to provide financial services within\none (1) year preceding the termination of his employment.\nARTICLE 4: DUTY OF LOYALTY\n4.01 Duty of Loyalty to Mellon. O’Hanley agrees that at all times during his employment by Mellon and in his position as Vice Chairman of MFC,\nhe owes Mellon a duty of loyalty and a duty to act in good faith. O’Hanley agrees that during his employment he will not individually, or in\ncombination with any other employer, employee or competitor of Mellon, violate or breach the terms of this agreement, Code of Conduct or Mellon\nSecurities Trading Policy.\n4.02 Cooperation. O’Hanley agrees that upon the termination of his employment, for any reason or no reason, including but not limited to\nresignation of employment, that he will cooperate with Mellon, upon reasonable notice and at reasonable times, in the prosecution and defense of\ncomplaints, investigations, litigation, arbitration and mediation of any complaints, claims or actions or regulatory review now in existence or that\nmay be threatened or brought in the future relating to events or occurrences that transpired while employed by Mellon or as Vice Chairman of MFC.\nO’Hanley also agrees that upon Mellon’s request, he will certify that he is in compliance with this Agreement.\n4.03 Prior Employer Restrictions. O’Hanley warrants that he is not subject or party to any agreement, understanding or undertaking that would\nprevent or restrict him from performing his employment duties or working with or on behalf of any customer or client. In addition, O’Hanley\nwarrants that his employment with Mellon does not violate any agreement, understanding or undertaking. Still further, O’Hanley agrees that he will\nnot in the course of performing duties for Mellon violate any confidentiality obligations that he may owe to others.\n4.04 Disclosure of Agreement. O’Hanley acknowledges and agrees to disclose the existence and terms of this Agreement so long as and to the extent\nthat such terms remain in effect to any prospective employer, partner or co-venturer prior to entering into an employment, partnership, or other\nbusiness relationship with such person or entity.\nARTICLE 5: SPECIAL, UNIQUE AND EXTRAORDINARY SERVICES\nO’Hanley acknowledges and agrees that in performing the job duties of his position that he provides Mellon with a special, unique and extraordinary\nservice.\n6 of 10\nARTICLE 6: WORKS FOR HIRE; PROPRIETARY DEVELOPMENT\n6.01 Property of Mellon. O’Hanley understands and agrees that any and all rights or interests that O’Hanley holds or obtains in any inventions,\nproducts, discoveries, processes, methods, computer software programs, models, techniques, formulae, designs, trade secrets, client, supplier, and\nvendor lists, sales and marketing plans, inventions, discoveries, improvements, copyrights, works of authorship, patent rights, trademarks or service\nmarks, and developments of any kind whatsoever, which are authored, conceived, reduced to practice, made, developed or created (alone or in\nconjunction with others, during regular hours of work otherwise) or otherwise obtained by O’Hanley during employment with Mellon or in the\nperformance of his duties as a Vice Chair of MFC which may directly or directly be useful in or relate to or arise out of such employment with\nMellon are expressly regarded as the exclusive property of Mellon or “works for hire” (the “Intellectual Property” ). The term Intellectual Property\ndoes not include inventions, products, discoveries, processes, methods, computer software programs, models, techniques, formulae, designs, trade\nsecrets, client, supplier, and vendor lists, sales and marketing plans, inventions, discoveries, improvements, copyrights, works of authorship, patent\nrights, trademarks or service marks which were in the possession of O’Hanley prior to his employment by Mellon and which were not obtained from\nor through Mellon.\n6.02 Disclosure; Assignment. O’Hanley agrees to promptly disclose to Mellon any and all such Inventions and deliver to Mellon, upon its\nrequest, a written description of such Intellectual Property and any available documentary or other materials evidencing such Intellectual Property.\nO’Hanley hereby assigns to Mellon the sole and exclusive right to such Intellectual Property and waives any license or other special right which\nO’Hanley may have or accrue therein, and that, upon request of Mellon, O’Hanley will execute and deliver any and all documents or instruments and\ntake any other action which Mellon shall deem necessary to assign to and vest completely in it, to perfect trademark, trade secret, copyright and\npatent protection with respect to, or to otherwise protect Mellon’s trade secrets and proprietary interest in, such Intellectual Property. O’Hanley will\nalso upon Mellon’s request, execute any documents necessary or advisable in the opinion of Mellon’s counsel to direct the issuance of patents,\ntrademarks or copyrights to Mellon or its designated affiliate with respect to such Intellectual Property as are to be Mellon’s exclusive property or to\nvest in Mellon title to such Intellectual Property, the expense of securing any patent, trademark or copyright, however, to be borne by Mellon.\nO’Hanley will hold for sole benefit of Mellon any Intellectual Property which is to be its exclusive property for which no patent, trademark or\ncopyright is issued.\n6.03 Survival. These obligations bind O’Hanley’s heirs and legal representatives and shall continue beyond the termination of O’Hanley’s\nemployment, regardless of reason, with respect to such Intellectual Property conceived of, reduced to practice, or developed by O’Hanley during the\nterm of employment with Mellon.\n6.04 Fees. Mellon agrees to pay any and all copyright, trademark and patent fees and expenses or other costs incurred by O’Hanley for any\nassistance rendered to Mellon pursuant to this Article 6 and to promptly reimburse O’Hanley for all expenses incurred by O’Hanley in perfecting its\nproperty rights in the Inventions. O’Hanley’s obligations to assign Inventions shall not apply to any invention about which O’Hanley can prove that:\n(i) the invention was developed entirely on O’Hanley’s own time and effort; (ii) no equipment, supplies, facilities, resources, trade secrets or\nconfidential information of Mellon was used in\n7 of 10\nthe development of the invention; (iii) the invention does not relate to the business of Mellon or to Mellon’s actual or anticipated research and\ndevelopment; and (iv) the invention does not result from any work otherwise performed by O’Hanley for Mellon.\nARTICLE 7: REMEDIES\n7.01 Injunctive Relief. O’Hanley agrees that any breach or threatened breach of any of the covenants contained in the Agreement would cause\nimmediate, material and irreparable harm to Mellon and that money damages would not provide an adequate remedy for Mellon to protect and\npreserve the status quo. Therefore, O’HANLEY CONSENTS TO THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER or A\nPRELIMINARY or PERMANENT INJUNCTION ordering that:\n(a) O’Hanley immediately return to Mellon all property and Confidential Information, whether original, duplicated, computerized,\nhandwritten, or in any other form whatsoever, and that O’Hanley be enjoined and restrained from using or disclosing any information\ncontained in such records; and\n(b) For a period of twelve (12) months, O’Hanley be enjoined and restrained from soliciting any client or customer whom O’Hanley served\nor whose name became known to O’Hanley while employed by Mellon or in the performance of his duties with Mellon, in any office\nand in any capacity; and\n(c) For a period of twelve (12) months, O’Hanley be enjoined and restrained from hiring, soliciting, or inducing any employee of Mellon to\nleave Mellon.\n7.02 O’Hanley agrees that Mellon shall have all of the rights and remedies available under law, or in equity, including, but not limited to, injunctive\nrelief, to a party enforcing any such covenant each of such rights and remedies to be independent of the other and severally enforceable including,\nbut not limited to, the right to have such covenants specifically enforced, and the right to require any violating party to account for and pay over to\nMellon all benefits derived or received by such violating party, or any of its subsidiaries or affiliates, as a result of any such breach of covenant.\n7.03 Jurisdiction. For purposes of Article 7, O’Hanley agrees to submit to, and confer exclusive jurisdiction on, the United States District Court or\nthe State Court, which has original jurisdiction for the judicial district, Pittsburgh Pennsylvania or county in which O’Hanley last worked in the\nUnited States for Mellon.\nARTICLE 8: EMPLOYMENT AT WILL\nNOTHING HEREIN IS A PROMISE OF EMPLOYMENT FOR A FIXED TERM. O'HANLEY AGREES THAT HE REMAINS AT ALL TIMES\nAN EMPLOYEE AT WILL. MELLON MAY TERMINATE O’HANLEY’S EMPLOYMENT FOR ANY REASON OR FOR NO REASON, JUST\nAS O’HANLEY MAY RESIGN AT ANY TIME.\n8 of 10\nARTICLE 9: ASSIGNMENT\nO’Hanley expressly acknowledges and agrees that Mellon may assign this Agreement, and its rights and obligations hereunder, to any other\nindividual, entity or organization that is a direct or indirect subsidiary of Mellon or which acquires (whether by purchase, merger, consolidation or\notherwise) all or substantially all of the business of Mellon, in either case without O’Hanley’s consent and without the necessity that this Agreement\nbe re-signed at the time of such transfer, and the term “Mellon” shall be deemed to include such entity or organization to which this Agreement is\nassigned. Any such transfer shall not in and of itself constitute a termination of O’Hanley’s employment by Mellon.\nARTICLE 10: MISCELLANEOUS\n10.01 Reasonableness; Severability. O’Hanley agrees that the covenants set forth herein are necessary and reasonable to protect Mellon’s\nConfidential Information, goodwill and business interests and therefore, valid in duration, geography and scope and in all other respects. If any court\nor tribunal determines that any of such covenants, or any part thereof, are invalid or unenforceable, the remaining covenants shall not thereby be\naffected and they shall be given full effect, without regard to the invalid portions. If any court or tribunal determined that all, or any part of the\ncovenants contained herein are unenforceable, because of the duration or scope of such provision, or for any other reason, such court or tribunal is\ndirected to reduce the duration or scope of such provision, as the case may be, so that, in its reduced form, such provision shall then be enforceable.\nIf any provision or provisions hereof shall be deemed invalid or unenforceable either in whole or in part, this Agreement shall be deemed amended\nto delete or modify, as necessary, the offending provision or provisions and to alter the bounds thereof in order to render it valid and enforceable.\n10.02 Additional Obligations. O’Hanley agrees that the obligations in this Agreement are in addition to and not in limitation or preemption of, all\nother obligations or prior agreements prior to the effective date of this Agreement, he has with Mellon under general or specific legal or equitable\nprinciples or its Code of Conduct or Securities Trading Policy or general or specific legal or equitable principles.\n10.03 Time to Consider Agreement. O’HANLEY ACKNOWLEDGES AND AGREES THAT HE HAS READ AND REVIEWED THIS\nAGREEMENT IN ITS ENTIRETY AND HAS BEEN GIVEN AN OPPORTUNITY TO CONSIDER THE AGREEMENT AND TO ASK\nMELLON QUESTIONS ABOUT IT. O'HANLEY ALSO AGREES THAT HE HAS BEEN GIVEN AN OPPORTUNITY TO CONSULT WITH\nAN ATTORNEY OF HIS CHOICE PRIOR TO EXECUTING THE AGREEMENT. BY EXECUTING THE AGREEMENT, O’HANLEY\nEXPRESSLY ACKNOWLEDGES THAT HE FULLY UNDERSTANDS THE TERMS OF THIS AGREEMENT AND KNOWINGLY AND\nFREELY AGREES TO ABIDE BY THEM.\n \n10.04 Governing Law. This Agreement shall be deemed to be made and entered into in the Commonwealth of Pennsylvania, and shall in all respects\nbe interpreted, enforced and governed under the laws of said Commonwealth.\n9 of 10\n10.05 Survival. O’Hanley acknowledges and agrees that the covenants and the restrictions contained in this Agreement are intended to protect\nMellon’s interest in its Confidential Information and its commercial relationships and goodwill with its customers, prospective customers, vendors,\nsuppliers, consultants and employees. O’Hanley acknowledges and agrees that the covenants and the restrictions contained in this Agreement shall\ncontinue in accordance with the express terms hereof regardless of any changes in title, position, duties, salary, compensation, benefits or other terms\nand conditions of employment, and shall survive the termination of O’Hanley’s employment.\n10.06 Headings. The underlined headings contained in this Agreement are for convenience of reference only and shall not affect the interpretation or\nconstruction of any provision hereof.\n4/20/2006 /s/ Ronald P. O’Hanley\nDate Ronald P. O’Hanley\n4/18/2006 Mellon Financial Corporation\nDate\nBy: /s/ Michael E. Bleier\nMichael E. Bleier,\nGeneral Counsel\n10 of 10	EX-99.2 3 dex992.htm CONFIDENTIALITY AND NON-SOLICITATION AGREEMENT\nExhibit 99.2\nCONFIDENTIALITY AND NON-SOLICITATION AGREEMENT\nTHIS CONFIDENTIALITY AND NON-SOLICITATION AGREEMENT, ("Agreement") made as of the 20th day of April, 2006, by and between\nMellon Financial Corporation ("MFC"), and on behalf of Mellon Trust of New England, National Association ("Mellon Trust"), their parent\ncompanies, subsidiaries, affiliates, related entities, successors and assigns (collectively "Mellon") and Ronald P. O'Hanley (hereinafter "O'Hanley")\nin consideration of and as a condition precedent to the following additional compensation, the adequacy, sufficiency and receipt of which are hereby\nacknowledged, agree as follows:\nARTICLE 1: CONSIDERATION\nPursuant to the April 19, 2006 letter from Robert P. Kelly to O'Hanley, effective April 19, 2006, and in accordance with Section 19 of the January 1,\n2003 Employment Agreement between MFC and O'Hanley, the Employment Agreement was terminated. In accordance with the April 19, 2006\nletter which is incorporated by reference, as if fully set forth herein, in exchange for O'Hanley's execution of this Agreement within thirty (30)\ndays\nof his receipt of the package offered in the April 19, 2006 letter, and as a condition precedent to the package, Mellon agrees to provide O'Hanley\nwith the following:\n(a) Base Salary. O'Hanley's annual base salary will be increased to $675,000 effective March 1, 2006. Thereafter, subject to annual review;\n(b) Mellon Financial Corporation (MFC) Profit Bonus Plan. O'Hanley's bonus opportunity under the MFC Profit Bonus Plan will be in\naccordance with, and subject to, the terms of the Plan. O'Hanley's annual bonus matrix is 300% of base salary at on-target performance, 400%\nof base salary at strong performance and 500% of base salary at outstanding performance. The matrix may be reviewed from time to time and\nadjusted accordingly;\n(c) Long-Term Incentive Award. (i) O'Hanley's eligibility for an award under the Mellon Financial Corporation Long-Term Profit Incentive\nPlan (2004) (LTPIP) will be in accordance with, and subject to, the terms of the LTPIP as well as any individualized agreements that are\nrequired. O'Hanley's LTPIP matrix is $1,687,500 for on-target performance, $2,250,000 for strong performance and $3,000,000 for\noutstanding performance. This matrix may be reviewed from time to time and adjusted accordingly; and (ii) O'Hanley will receive a special\none-time award under the LTPIP of $1,700,000 comprised of 40 percent stock options, 20 percent restricted stock, and 40 percent Total\nShareholder Return ("TSR") performance shares. Award levels under the LTPIP and the Award are expressed in terms of McLagan valuation\nmethodology. Awards will be made utilizing Towers Perrin Long-Term Incentive Award calibration methodology;\n(d) Involuntary Separation of Employment. In the event that O'Hanley's employment with Mellon involuntarily terminates due to either a\nWithout Cause Termination or a Constructive Discharge, as those terms are defined in the April 19, 2006 letter and provided that he executes\na\nseparation agreement and general release of claims in a form acceptable to Mellon's legal counsel, Mellon agrees to provide O'Hanley with the\nfollowing cash and non-cash benefits. If Mellon\ndetermines that it is necessary or appropriate for any payments, including benefits which cannot be provided on a nontaxable basis, to be\ndelayed in order to avoid additional tax, interest and/or penalties under Section 409A of the Internal Revenue Code ("Code"), then the\npayments and benefits would not be made before the date which is the first day following the six (6) month anniversary of the date of the\ninvoluntary separation (or upon earlier death).\n(i) Transition Pay. O'Hanley will receive seventy-eight (78) weeks of separation pay in an amount equivalent to his base salary in effect,\nless all applicable taxes and deductions ("Separation Pay Amount"). Such Separation Pay Amount shall be reduced by the full amount\nof the cash displacement pay benefits (before taxes and deductions) actually paid to him pursuant to the Mellon Financial Corporation\nDisplacement Program, Mellon Supplemental Unemployment Benefit Plan and/or Change in Control Agreement in effect and applicable\nto him and for which he is eligible. Such reduced amount shall be hereinafter referred to as "Transition Pay". The time between the date\nupon which O'Hanley begins to receive Transition Pay and the date upon which his Transition Pay ceases will be the "Transition\nPeriod." Subject to Mellon's determination of a Code Section 409A delay, the first twelve (12) periodic installments will be delayed\nuntil the first day following the six (6) month anniversary of O'Hanley's separation from service. After which, Transition Pay will be\npaid in periodic installments (with the first payment after the Code Section 409A delay including the prior installment payments) on\nregularly scheduled pay dates until the final installment of Transition Pay;\n(ii) Continued Health and Life Insurance Coverage. To the extent permissible under the law and the general terms and provisions of such\nplans or programs and in accordance with the provisions, thereof, O'Hanley will receive continuation of his existing health and life\ninsurance coverages (except short-term or long-term disability coverage) under Mellon's benefit programs as such may be amended from\ntime-to-time under the same terms as such coverages are provided to similarly situated separated Mellon employees. Such coverages will\ncontinue until the earlier of: (i) the date he fails to pay any applicable employee premium; (ii) the end of the Transition Period; (iii) the\ndate Mellon discontinues the particular coverage(s) and/or options for all similarly situated separated employees; and/or (iv) his\nemployment with another entity or self-employment;\n(iii)\nMFC Profit Bonus Plan. Although awards under incentive plans are completely discretionary, in the year active employment ceases,\nmanagement will recommend that O'Hanley receive a bonus in the amount equal to the average of his prior two-year bonus annualized\nawards, less applicable taxes and deductions to be paid all in cash. The award will be prorated based upon the number of months worked\nin the calendar year in which his active employment ceases. Subject to Mellon's determination of a Code Section 409A delay, the\npayment date will be no later than March 15 of the subsequent year; and\n(iv) Special Bonus Award. O'Hanley will receive a special bonus award equal to one and one-half times the average of his prior two-year\nbonus\n2 of 10\nannualized awards, less applicable taxes and deductions. The special bonus award will be paid all in cash 30 days following the last\nTransition Pay installment payment date.\nARTICLE 2: CONFIDENTIAL INFORMATION\n2.01 Definition of and Ownership of Confidential Information. 'Hanley recognizes, acknowledges and agrees that:\n(a) In the course of his employment by Mellon Trust and as a Vice Chairman of MFC he has had and it will be necessary for him to be given or\nhave access to and become informed of confidential or proprietary information which Mellon possesses or to which Mellon has rights, which\nrelates to Mellon and which is not generally known to the public or in the trade and is a competitive asset of Mellon, or information which\nconstitutes a "trade secret" of Mellon, as that term is defined by the Uniform Trade Secrets Act, as amended and approved by the National\nConference of Commissioners on Uniform State Laws in 1985, including without limitation, and regardless of whether such is original,\nduplicated, computerized, memorized, handwritten or in any other form: (i) Mellon's planning data, records, observations and marketing\nstrategies or techniques, computer programs, system documentation, manuals, formulae, processes, operation methods, machines,\ncompositions; (ii) non-public terms of any new products, data bases, and investment strategies of Mellon, trading, arbitrage and/or hedging\ntechniques or strategies; (iii) non-public information relating to Mellon personnel matters; (iv) Mellon's financial results and information about\nits business condition; (v) non-public terms of any investment, management or advisory agreement or other material contract of Mellon;\n(vi) Mellon's proprietary software and related documents; (vii) Mellon's customer and client and potential customer prospecting lists,\nidentifying information and contact persons at such customers and clients and prospects and Mellon Paid Channel (as hereinafter defined);\n(viii) non-public material information concerning Mellon's clients or customers or their operations, condition (financial or otherwise); and\n(ix) patents, patents applications, copyrights, service marks and other intellectual property, Intellectual Property (as defined below)\n(collectively referred to herein as the "Confidential Information");\n(b) Confidential Information shall not include information generally known to the public other than by virtue of a breach of this Agreement by\nO'Hanley, information rightfully known to O'Hanley without limitation on disclosure prior to its receipt from Mellon or a customer of Mellon,\ninformation rightfully received from a third party without limitation on disclosure and information generally made available by Mellon or a\nclient or customer of Mellon to third parties without restriction on disclosure; or information required to be disclosed by law, rule, regulation or\norder without an obligation of confidentiality on the part of the recipient, provided that prior to making any disclosure under this clause\nO'Hanley shall, if permissible under the law, rule or regulation, provide Mellon with notice and the opportunity to contest such disclosure; and\n(c) The Confidential Information has been developed or acquired by Mellon with significant expenditures of time, effort and money and is\nunique and cannot be lawfully duplicated or easily acquired. The Confidential Information is the sole and\n3 of 10\nexclusive property of Mellon (and in some cases the property of a customer of Mellon), regardless of its form or format and whether compiled\nor created by O'Hanley or Mellon. Mellon takes all reasonable measures to maintain its confidentiality and to guard its secrecy. The\nConfidential Information is not generally known outside Mellon and within Mellon this information is confidential and used only on a "need to\nknow" basis. The Confidential Information is unique and cannot be lawfully duplicated or easily acquired. O'Hanley agrees that the\nConfidential Information is deserving of trade secret status and protection, as that term is defined by the Uniform Trade Secrets Act, as\namended and approved by the National Conference of Commissioners on Uniform State Laws in 1985.\n2.02 Use of Confidential Information. O'Hanley agrees that the use, except for the sole purpose of conducting business on behalf of Mellon or with\nprior written consent of Mellon, misappropriation or disclosure of the Confidentia Information would constitute a breach of trust and could cause\nirreparable injury to Mellon.\n2.03 Nondisclosure of Confidential Information. O'Hanley agrees that it is essential to the protection of Mellon's goodwill and to the maintenance\nof\nMellon's competitive position that the Confidential Information be kept secret and O'Hanley agrees not to disclose the Confidential Information to\nothers or use the Confidential Information to O'Hanley's own advantage or the advantage of others either during employment or at any time\nthereafter.\n2.04 Return of Mellon Property. O'Hanley agrees that upon the termination of employment, for any reason or no reason, or at any other time Mellon\nmay request, that O'Hanley will immediately return to Mellon all Confidential Information and all of its property, including without limitation, all\ndocuments (including copies) and information, however maintained (including computer files, tapes, and recordings), concerning Mellon or acquired\nby O'Hanley in the course and scope of employment (excluding only those documents relating solely to O'Hanley's own salary and benefits).\nIn\naddition, O'Hanley agrees that he will delete, all information concerning Mellon's business, customers and prospective customers, including\ncustomer contact information (e.g., names, addresses and telephone numbers), from his personal computer devices, including laptops, cellular\nphones, palm pilots and similar devices.\n2.05 Performance Record. O'Hanley understands, acknowledges and agrees that the investment performance record (including without limitation\nperformance ratings or rankings provided by any rating or ranking service) of any fund(s) or accounts of Mellon customers with which he is\nassociated while employed at Mellon is attributable to teams of professionals of Mellon and not solely the efforts of any single individual and that,\ntherefore, the performance records of the fund(s) or accounts managed by Mellon are and shall be the exclusive property of Mellon.\nARTICLE 3: NON-SOLICITATION OF ACCOUNTS AND EMPLOYEES\n3.01 Non-solicitation of Clients or Customers. O'Hanley covenants and agrees that during his employment with Mellon and for a period of twelve\n(12)\nmonths following the termination of his employment, for any reason or no reason, including but not limited to resignation of employment, that\n("Restricted Period"), O'Hanley, whether directly or indirectly, in any capacity whatsoever (whether as proprietor, partner, investor, shareholder,\ndirector, officer,\n4 of 10\nemployer, consultant, independent contractor, co-venturer, financier, agent, representative or otherwise) shall not:\n(a) provide or assist with the provision of Relevant Financial Services to a Client or Customer of Mellon, except as an employee of Mellon,\nprovided that this Article 3 does not prohibit O'Hanley from being employed by or affiliated or associated with any person or entity after\ntermination of his employment with Mellon so long as he does not have any involvement on behalf of any person or entity with respect to\nsoliciting, managing, administering, supporting or retaining the Relevant Financial Services business provided or proposed to be provided to a\nCustomer or Client of Mellon; and/or\n(b) (i) solicit by mail, phone, personal meeting, or by any other means, either directly or indirectly, the business or patronage of any Customer\nor Client of Mellon for himself or any other person or entity other than Mellon for the purpose of providing Relevant Financial Services;\n(ii) divert, entice, or otherwise take away from Mellon the business or patronage of any Customer or Client of Mellon, or attempt to do SO; or\n(iii) solicit or induce any Customer or Client of Mellon to terminate or reduce its relationship with Mellon.\n3.02 he shall Non-solicitation not, directly or of indirectly, Employees. hire O'Hanley or employ, covenants recruit solicit and agrees or induce, that during or attempt his employment to hire, recruit with solicit Mellon or induce, and during (or in the any Restricted way assist Period another that\nperson or enterprise in recruiting, soliciting or inducing) any employee of Mellon to leave Mellon or any affiliate for any reason whatsoever.\n3.03 Reasonableness of Restricted Period. O'Hanley acknowledges and agrees that the Restricted Period is reasonable and valid in duration and\nscope\nand in all other respects. O'Hanley also represents that his experience and capabilities are such that the enforcement of the provisions of this\nAgreement will not prevent him from earning a livelihood, and he acknowledges that it would cause Mellon serious and irreparable injury and cost if\nhe\nwere to use his ability and knowledge in competition with Mellon or to otherwise breach the obligations contained in this Agreement.\n3.04 Extension of Restricted Period. 'Hanley agrees that the nonsolicitation obligations contained in this Agreement shall be extended by the\nlength of time during which he shall have been in breach of any of the provisions.\n3.05 Definitions. O'Hanley understands that for the purposes of this Agreement:\n(a) "Relevant Financial Services" shall mean: (i) institutional asset and investment management and related advisory services; (ii) international\nasset and investment management and related advisory services; (iii) mutual fund management and related advisory services; and (iv) and any\nother services or products provided by Mellon from time to time which are within the scope of O'Hanley's responsibilities or at any time\nduring the twelve (12) months preceding the termination of his employment were within the scope of his responsibilities; and\n(b)\n"Customer" or "Client" of Mellon means any person or entity who (i) is receiving Relevant Financial Services from Mellon, or (ii) on the\ndate of termination of his employment with Mellon or its parent, subsidiary, affiliate related entity or\n5 of 10\nsuccessor received such services for compensation at any time during the one (1) year period immediately preceding the date of termination\nof\nhis employment, or (iii) O'Hanley solicited, directly or indirectly, in whole or in part, on behalf of Mellon to provide financial services within\none (1) year preceding the termination of his employment.\nARTICLE 4: DUTY OF LOYALTY\n4.01 Duty. of Loyalty. to Mellon. O'Hanley agrees that at all times during his employment by Mellon and in his position as Vice Chairman of MFC,\nhe owes Mellon a duty of loyalty and a duty to act in good faith. O'Hanley agrees that during his employment he will not individually, or in\ncombination with any other employer, employee or competitor of Mellon, violate or breach the terms of this agreement, Code of Conduct or Mellon\nSecurities Trading Policy.\n4.02 Cooperation. O'Hanley agrees that upon the termination of his employment, for any reason or no reason, including but not limited to\nresignation of employment, that he will cooperate with Mellon, upon reasonable notice and at reasonable times, in the prosecution and defense of\ncomplaints, investigations, litigation, arbitration and mediation of any complaints, claims or actions or regulatory review now in existence or that\nmay be threatened or brought in the future relating to events or occurrences that transpired while employed by Mellon or as Vice Chairman of MFC.\nD'Hanley also agrees that upon Mellon's request, he will certify that he is in compliance with this Agreement.\n4.03 Prior Employer Restrictions. O'Hanley warrants that he is not subject or party to any agreement, understanding or undertaking that would\nprevent or restrict him from performing his employment duties or working with or on behalf of any customer or client. In addition, O'Hanley\nwarrants that his employment with Mellon does not violate any agreement, understanding or undertaking. Still further, O'Hanley agrees that he will\nnot in the course of performing duties for Mellon violate any confidentiality obligations that he may owe to others.\n4.04 Disclosure of Agreement. O'Hanley acknowledges and agrees to disclose the existence and terms of this Agreement so long as and to the extent\nthat such terms remain in effect to any prospective employer, partner or co-venturer prior to entering into an employment, partnership, or other\nbusiness relationship with such person or entity.\nARTICLE 5: SPECIAL, UNIQUE AND EXTRAORDINARY SERVICES\nO'Hanley acknowledges and agrees that in performing the job duties of his position that he provides Mellon with a special, unique and extraordinary\nservice.\n6 of 10\nARTICLE 6: WORKS FOR HIRE; PROPRIETARY DEVELOPMENT\n6.01 Property. of Mellon. O'Hanley understands and agrees that any and all rights or interests that O'Hanley holds or obtains in any inventions,\nproducts, discoveries, processes, methods, computer software programs, models, techniques, formulae, designs, trade secrets, client, supplier, and\nvendor lists, sales and marketing plans, inventions, discoveries, improvements, copyrights, works of authorship, patent rights, trademarks or service\nmarks, and developments of any kind whatsoever, which are authored, conceived, reduced to practice, made, developed or created (alone or in\nconjunction with others, during regular hours of work otherwise) or otherwise obtained by O'Hanley during employment with Mellon or in the\nperformance of his duties as a Vice Chair of MFC which may directly or directly be useful in or relate to or arise out of such employment with\nMellon are expressly regarded as the exclusive property of Mellon or "works for hire" (the "Intellectual Property" ). The term Intellectual Property\ndoes not include inventions, products, discoveries, processes, methods, computer software programs, models, techniques, formulae, designs, trade\nsecrets, client, supplier, and vendor lists, sales and marketing plans, inventions, discoveries, improvements, copyrights, works of authorship, patent\nrights, trademarks or service marks which were in the possession of O'Hanley prior to his employment by Mellon and which were not obtained from\nor through Mellon.\n6.02 Disclosure; Assignment. O'Hanley agrees to promptly disclose to Mellon any and all such Inventions and deliver to Mellon, upon its\nrequest, a written description of such Intellectual Property and any available documentary or other materials evidencing such Intellectual Property.\nO'Hanley hereby assigns to Mellon the sole and exclusive right to such Intellectual Property and waives any license or other special right which\nO'Hanley may have or accrue therein, and that, upon request of Mellon, O'Hanley will execute and deliver any and all documents or instruments and\ntake any other action which Mellon shall deem necessary to assign to and vest completely in it, to perfect trademark, trade secret, copyright and\npatent protection with respect to, or to otherwise protect Mellon's trade secrets and proprietary interest in, such Intellectual Property. O'Hanley will\nalso upon Mellon's request, execute any documents necessary or advisable in the opinion of Mellon's counsel to direct the issuance of patents,\ntrademarks or copyrights to Mellon or its designated affiliate with respect to such Intellectual Property as are to be Mellon's exclusive property or\nto\nvest in Mellon title to such Intellectual Property, the expense of securing any patent, trademark or copyright, however, to be borne by Mellon.\nO'Hanley will hold for sole benefit of Mellon any Intellectual Property which is to be its exclusive property for which no patent, trademark or\ncopyright is issued.\n6.03 Survival. These obligations bind O'Hanley's heirs and legal representatives and shall continue beyond the termination of O'Hanley's\nemployment, regardless of reason, with respect to such Intellectual Property conceived of, reduced to practice, or developed by O'Hanley during the\nterm of employment with Mellon.\n6.04 Fees. Mellon agrees to pay any and all copyright, trademark and patent fees and expenses or other costs incurred by O'Hanley for any\nassistance rendered to Mellon pursuant to this Article 6 and to promptly reimburse O'Hanley for all expenses incurred by O'Hanley in perfecting\nits\nproperty rights in the Inventions. O'Hanley's obligations to assign Inventions shall not apply to any invention about which O'Hanley can prove that:\n(i) the invention was developed entirely on O'Hanley's own time and effort; (ii) no equipment, supplies, facilities, resources, trade secrets or\nconfidential information of Mellon was used in\n7 of 10\nthe development of the invention; (iii) the invention does not relate to the business of Mellon or to Mellon's actual or anticipated research and\ndevelopment; and (iv) the invention does not result from any work otherwise performed by O'Hanley for Mellon.\nARTICLE 7: REMEDIES\n7.01 Injunctive Relief. O'Hanley agrees that any breach or threatened breach of any of the covenants contained in the Agreement would cause\nimmediate, material and irreparable harm to Mellon and that money damages would not provide an adequate remedy for Mellon to protect and\npreserve the status quo. Therefore, O'HANLEY CONSENTS TO THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER or A\nPRELIMINARY or PERMANENT INJUNCTION ordering that:\n(a) O'Hanley immediately return to Mellon all property and Confidential Information, whether original, duplicated, computerized,\nhandwritten, or in any other form whatsoever, and that O'Hanley be enjoined and restrained from using or disclosing any information\ncontained in such records; and\n(b) For a period of twelve (12) months, O'Hanley be enjoined and restrained from soliciting any client or customer whom O'Hanley served\nor whose name became known to O'Hanley while employed by Mellon or in the performance of his duties with Mellon, in any office\nand in any capacity; and\n(c)\nFor a period of twelve (12) months, O'Hanley be enjoined and restrained from hiring, soliciting, or inducing any employee of Mellon to\nleave Mellon.\n7.02 'Hanley agrees that Mellon shall have all of the rights and remedies available under law, or in equity, including, but not limited to, injunctive\nrelief, to a party enforcing any such covenant each of such rights and remedies to be independent of the other and severally enforceable including,\nbut not limited to, the right to have such covenants specifically enforced, and the right to require any violating party to account for and pay over\nto\nMellon all benefits derived or received by such violating party, or any of its subsidiaries or affiliates, as a result of any such breach of covenant.\n7.03 Jurisdiction. For purposes of Article 7, O'Hanley agrees to submit to, and confer exclusive jurisdiction on, the United States District Court or\nthe State Court, which has original jurisdiction for the judicial district, Pittsburgh Pennsylvania or county in which O'Hanley last worked in the\nUnited States for Mellon.\nARTICLE 8: EMPLOYMENT AT WILL\nNOTHING HEREIN IS A PROMISE OF EMPLOYMENT FOR A FIXED TERM. O'HANLEY AGREES THAT HE REMAINS AT ALL TIMES\nAN EMPLOYEE AT WILL. MELLON MAY TERMINATE O'HANLEY'S EMPLOYMENT FOR ANY REASON OR FOR NO REASON, JUST\nAS O'HANLEY MAY RESIGN AT ANY TIME.\n8 of 10\nARTICLE 9: ASSIGNMENT\nO'Hanley expressly acknowledges and agrees that Mellon may assign this Agreement, and its rights and obligations hereunder, to any other\nindividual, entity or organization that is a direct or indirect subsidiary of Mellon or which acquires (whether by purchase, merger, consolidation\nor\notherwise) all or substantially all of the business of Mellon, in either case without O'Hanley's consent and without the necessity that this Agreement\nbe re-signed at the time of such transfer, and the term "Mellon" shall be deemed to include such entity or organization to which this Agreement\nis\nassigned. Any such transfer shall not in and of itself constitute a termination of O'Hanley's employment by Mellon.\nARTICLE 10: MISCELLANEOUS\n10.01 Reasonableness; Severability.. O'Hanley agrees that the covenants set forth herein are necessary and reasonable to protect Mellon's\nConfidential Information, goodwill and business interests and therefore, valid in duration, geography and scope and in all other respects. If any court\nor tribunal determines that any of such covenants, or any part thereof, are invalid or unenforceable, the remaining covenants shall not thereby be\naffected and they shall be given full effect, without regard to the invalid portions. If any court or tribunal determined that all, or any part of the\ncovenants contained herein are unenforceable, because of the duration or scope of such provision, or for any other reason, such court or tribunal\nis\ndirected to reduce the duration or scope of such provision, as the case may be, so that, in its reduced form, such provision shall then be enforceable.\nIf any provision or provisions hereof shall be deemed invalid or unenforceable either in whole or in part, this Agreement shall be deemed amended\nto\ndelete or modify, as necessary, the offending provision or provisions and to alter the bounds thereof in order to render it valid and enforceable\n10.02 Additional Obligations. O'Hanley agrees that the obligations in this Agreement are in addition to and not in limitation or preemption of, all\nother obligations or prior agreements prior to the effective date of this Agreement, he has with Mellon under general or specific legal or equitable\nprinciples or its Code of Conduct or Securities Trading Policy or general or specific legal or equitable principles.\n10.03 Time to Consider Agreement. O'HANLEY ACKNOWLEDGES AND AGREES THAT HE HAS READ AND REVIEWED THIS\nAGREEMENT IN ITS ENTIRETY AND HAS BEEN GIVEN AN OPPORTUNITY TO CONSIDER THE AGREEMENT AND TO ASK\nMELLON QUESTIONS ABOUT IT. O'HANLEY ALSO AGREES THAT HE HAS BEEN GIVEN AN OPPORTUNITY TO CONSULT WITH\nAN ATTORNEY OF HIS CHOICE PRIOR TO EXECUTING THE AGREEMENT. BY EXECUTING THE AGREEMENT, O'HANLEY\nEXPRESSLY ACKNOWLEDGES THAT HE FULLY UNDERSTANDS THE TERMS OF THIS AGREEMENT AND KNOWINGLY AND\nFREELY AGREES TO ABIDE BY THEM.\n10.04 Governing Law. This Agreement shall be deemed to be made and entered into in the Commonwealth of Pennsylvania, and shall in all respects\nbe interpreted, enforced and governed under the laws of said Commonwealth.\n9 of 10\n10.05 Survival. 'Hanley acknowledges and agrees that the covenants and the restrictions contained in this Agreement are intended to protect\nMellon's interest in its Confidential Information and its commercial relationships and goodwill with its customers, prospective customers, vendors,\nsuppliers, consultants and employees. O'Hanley acknowledges and agrees that the covenants and the restrictions contained in this Agreement shall\ncontinue in accordance with the express terms hereof regardless of any changes in title, position, duties, salary, compensation, benefits or other terms\nand conditions of employment, and shall survive the termination of O'Hanley's employment.\n10.06 Headings. The underlined headings contained in this Agreement are for convenience of reference only and shall not affect the interpretation\nor\nconstruction of any provision hereof.\n4/20/2006\n/s/ Ronald P. O'Hanley\nDate\nRonald P. O'Hanley\n4/18/2006\nMellon Financial Corporation\nDate\nBy: /s/ Michael E. Bleier\nMichael E. Bleier,\nGeneral Counsel\n10 of 10	EX-99.2 3 dex992.htm CONFIDENTIALITY AND NON-SOLICITATION AGREEMENT\nExhibit 99.2\nCONFIDENTIALITY AND NON-SOLICITATION AGREEMENT\nTHIS CONFIDENTIALITY AND NON-SOLICITATION AGREEMENT, (“Agreement”) made as of the 20th day of April, 2006, by and between\nMellon Financial Corporation (“MFC”), and on behalf of Mellon Trust of New England, National Association (“Mellon Trust”), their parent\ncompanies, subsidiaries, affiliates, related entities, successors and assigns (collectively “Mellon”) and Ronald P. O’Hanley (hereinafter “O’Hanley”)\nin consideration of and as a condition precedent to the following additional compensation, the adequacy, sufficiency and receipt of which are hereby\nacknowledged, agree as follows:\nARTICLE 1: CONSIDERATION\nPursuant to the April 19, 2006 letter from Robert P. Kelly to O’Hanley, effective April 19, 2006, and in accordance with Section 19 of the January 1,\n2003 Employment Agreement between MFC and O’Hanley, the Employment Agreement was terminated. In accordance with the April 19, 2006\nletter which is incorporated by reference, as if fully set forth herein, in exchange for O’Hanley’s execution of this Agreement within thirty (30) days\nof his receipt of the package offered in the April 19, 2006 letter, and as a condition precedent to the package, Mellon agrees to provide O’Hanley\nwith the following:\n(a) Base Salary. O’Hanley’s annual base salary will be increased to $675,000 effective March 1, 2006. Thereafter, subject to annual review;\n(b) Mellon Financial Corporation (MFC) Profit Bonus Plan. O’Hanley’s bonus opportunity under the MFC Profit Bonus Plan will be in\naccordance with, and subject to, the terms of the Plan. O’Hanley’s annual bonus matrix is 300% of base salary at on-target performance, 400%\nof base salary at strong performance and 500% of base salary at outstanding performance. The matrix may be reviewed from time to time and\nadjusted accordingly;\n(c) Long-Term Incentive Award. (i) O’Hanley’s eligibility for an award under the Mellon Financial Corporation Long-Term Profit Incentive\nPlan (2004) (LTPIP) will be in accordance with, and subject to, the terms of the LTPIP as well as any individualized agreements that are\nrequired. O’Hanley’s LTPIP matrix is $1,687,500 for on-target performance, $2,250,000 for strong performance and $3,000,000 for\noutstanding performance. This matrix may be reviewed from time to time and adjusted accordingly; and (ii) O’Hanley will receive a special\none-time award under the LTPIP of $1,700,000 comprised of 40 percent stock options, 20 percent restricted stock, and 40 percent Total\nShareholder Return (“TSR”) performance shares. Award levels under the LTPIP and the Award are expressed in terms of McLagan valuation\nmethodology. Awards will be made utilizing Towers Perrin Long-Term Incentive Award calibration methodology;\n(d) Involuntary Separation of Employment. In the event that O’Hanley’s employment with Mellon involuntarily terminates due to either a\nWithout Cause Termination or a Constructive Discharge, as those terms are defined in the April 19, 2006 letter and provided that he executes a\nseparation agreement and general release of claims in a form acceptable to Mellon’s legal counsel, Mellon agrees to provide O’Hanley with the\nfollowing cash and non-cash benefits. If Mellon\ndetermines that it is necessary or appropriate for any payments, including benefits which cannot be provided on a nontaxable basis, to be\ndelayed in order to avoid additional tax, interest and/or penalties under Section 409A of the Internal Revenue Code (“Code”), then the\npayments and benefits would not be made before the date which is the first day following the six (6) month anniversary of the date of the\ninvoluntary separation (or upon earlier death).\n(i) Transition Pay. O’Hanley will receive seventy-eight (78) weeks of separation pay in an amount equivalent to his base salary in effect,\nless all applicable taxes and deductions (“Separation Pay Amount”). Such Separation Pay Amount shall be reduced by the full amount\nof the cash displacement pay benefits (before taxes and deductions) actually paid to him pursuant to the Mellon Financial Corporation\nDisplacement Program, Mellon Supplemental Unemployment Benefit Plan and/or Change in Control Agreement in effect and applicable\nto him and for which he is eligible. Such reduced amount shall be hereinafter referred to as “Transition Pay”. The time between the date\nupon which O’Hanley begins to receive Transition Pay and the date upon which his Transition Pay ceases will be the “Transition\nPeriod.” Subject to Mellon’s determination of a Code Section 409A delay, the first twelve (12) periodic installments will be delayed\nuntil the first day following the six (6) month anniversary of O’Hanley’s separation from service. After which, Transition Pay will be\npaid in periodic installments (with the first payment after the Code Section 409A delay including the prior installment payments) on\nregularly scheduled pay dates until the final installment of Transition Pay;\n(ii) Continued Health and Life Insurance Coverage. To the extent permissible under the law and the general terms and provisions of such\nplans or programs and in accordance with the provisions, thereof, O’Hanley will receive continuation of his existing health and life\ninsurance coverages (except short-term or long-term disability coverage) under Mellon’s benefit programs as such may be amended from\ntime-to-time under the same terms as such coverages are provided to similarly situated separated Mellon employees. Such coverages will\ncontinue until the earlier of: (i) the date he fails to pay any applicable employee premium; (ii) the end of the Transition Period; (iii) the\ndate Mellon discontinues the particular coverage(s) and/or options for all similarly situated separated employees; and/or (iv) his\nemployment with another entity or self-employment;\n(iii) MFC Profit Bonus Plan. Although awards under incentive plans are completely discretionary, in the year active employment ceases,\nmanagement will recommend that O’Hanley receive a bonus in the amount equal to the average of his prior two-year bonus annualized\nawards, less applicable taxes and deductions to be paid all in cash. The award will be prorated based upon the number of months worked\nin the calendar year in which his active employment ceases. Subject to Mellon’s determination of a Code Section 409A delay, the\npayment date will be no later than March 15 of the subsequent year; and\n(iv) Special Bonus Award. O’Hanley will receive a special bonus award equal to one and one-half times the average of his prior two-year\nbonus\n2of10\nannualized awards, less applicable taxes and deductions. The special bonus award will be paid all in cash 30 days following the last\nTransition Pay installment payment date.\nARTICLE 2: CONFIDENTIAL INFORMATION\n2.01 Definition of and Ownership of Confidential Information. O’Hanley recognizes, acknowledges and agrees that:\n(a) In the course of his employment by Mellon Trust and as a Vice Chairman of MFC he has had and it will be necessary for him to be given or\nhave access to and become informed of confidential or proprietary information which Mellon possesses or to which Mellon has rights, which\nrelates to Mellon and which is not generally known to the public or in the trade and is a competitive asset of Mellon, or information which\nconstitutes a “trade secret” of Mellon, as that term is defined by the Uniform Trade Secrets Act, as amended and approved by the National\nConference of Commissioners on Uniform State Laws in 1985, including without limitation, and regardless of whether such is original,\nduplicated, computerized, memorized, handwritten or in any other form: (i) Mellon’s planning data, records, observations and marketing\nstrategies or techniques, computer programs, system documentation, manuals, formulae, processes, operation methods, machines,\ncompositions; (ii) non-public terms of any new products, data bases, and investment strategies of Mellon, trading, arbitrage and/or hedging\ntechniques or strategies; (iii) non-public information relating to Mellon personnel matters; (iv) Mellon’s financial results and information about\nits business condition; (v) non-public terms of any investment, management or advisory agreement or other material contract of Mellon;\n(vi) Mellon’s proprietary software and related documents; (vii) Mellon’s customer and client and potential customer prospecting lists,\nidentifying information and contact persons at such customers and clients and prospects and Mellon Paid Channel (as hereinafter defined);\n(viii) non-public material information concerning Mellon’s clients or customers or their operations, condition (financial or otherwise); and\n(ix) patents, patents applications, copyrights, service marks and other intellectual property, Intellectual Property (as defined below)\n(collectively referred to herein as the “Confidential Information”);\n(b) Confidential Information shall not include information generally known to the public other than by virtue of a breach of this Agreement by\nO’Hanley, information rightfully known to O’Hanley without limitation on disclosure prior to its receipt from Mellon or a customer of Mellon,\ninformation rightfully received from a third party without limitation on disclosure and information generally made available by Mellon or a\nclient or customer of Mellon to third parties without restriction on disclosure; or information required to be disclosed by law, rule, regulation or\norder without an obligation of confidentiality on the part of the recipient, provided that prior to making any disclosure under this clause\nO’Hanley shall, if permissible under the law, rule or regulation, provide Mellon with notice and the opportunity to contest such disclosure; and\n(c) The Confidential Information has been developed or acquired by Mellon with significant expenditures of time, effort and money and is\nunique and cannot be lawfully duplicated or easily acquired. The Confidential Information is the sole and\n3of10\nexclusive property of Mellon (and in some cases the property of a customer of Mellon), regardless of its form or format and whether compiled\nor created by O’Hanley or Mellon. Mellon takes all reasonable measures to maintain its confidentiality and to guard its secrecy. The\nConfidential Information is not generally known outside Mellon and within Mellon this information is confidential and used only on a “need to\nknow” basis. The Confidential Information is unique and cannot be lawfully duplicated or easily acquired. O’Hanley agrees that the\nConfidential Information is deserving of trade secret status and protection, as that term is defined by the Uniform Trade Secrets Act, as\namended and approved by the National Conference of Commissioners on Uniform State Laws in 1985.\n2.02 Use of Confidential Information. O’Hanley agrees that the use, except for the sole purpose of conducting business on behalf of Mellon or with\nprior written consent of Mellon, misappropriation or disclosure of the Confidential Information would constitute a breach of trust and could cause\nirreparable injury to Mellon.\n2.03 Nondisclosure of Confidential Information. O’Hanley agrees that it is essential to the protection of Mellon’s goodwill and to the maintenance of\nMellon’s competitive position that the Confidential Information be kept secret and O’Hanley agrees not to disclose the Confidential Information to\nothers or use the Confidential Information to O’Hanley’s own advantage or the advantage of others either during employment or at any time\nthereafter.\n2.04 Return of Mellon Property. O’Hanley agrees that upon the termination of employment, for any reason or no reason, or at any other time Mellon\nmay request, that O’Hanley will immediately return to Mellon all Confidential Information and all of its property, including without limitation, all\ndocuments (including copies) and information, however maintained (including computer files, tapes, and recordings), concerning Mellon or acquired\nby O’Hanley in the course and scope of employment (excluding only those documents relating solely to O’Hanley’s own salary and benefits). In\naddition, O’Hanley agrees that he will delete, all information concerning Mellon’s business, customers and prospective customers, including\ncustomer contact information (e.g., names, addresses and telephone numbers), from his personal computer devices, including laptops, cellular\nphones, palm pilots and similar devices.\n2.05 Performance Record. O’Hanley understands, acknowledges and agrees that the investment performance record (including without limitation\nperformance ratings or rankings provided by any rating or ranking service) of any fund(s) or accounts of Mellon customers with which he is\nassociated while employed at Mellon is attributable to teams of professionals of Mellon and not solely the efforts of any single individual and that,\ntherefore, the performance records of the fund(s) or accounts managed by Mellon are and shall be the exclusive property of Mellon.\nARTICLE 3: NON-SOLICITATION OF ACCOUNTS AND EMPLOYEES\n3.01 Non-solicitation of Clients or Customers. O’Hanley covenants and agrees that during his employment with Mellon and for a period of twelve\n(12) months following the termination of his employment, for any reason or no reason, including but not limited to resignation of employment, that\n(“Restricted Period”), O’Hanley, whether directly or indirectly, in any capacity whatsoever (whether as proprietor, partner, investor, shareholder,\ndirector, officer,\n4of10\nemployer, consultant, independent contractor, co-venturer, financier, agent, representative or otherwise) shall not:\n(a) provide or assist with the provision of Relevant Financial Services to a Client or Customer of Mellon, except as an employee of Mellon,\nprovided that this Article 3 does not prohibit O’Hanley from being employed by or affiliated or associated with any person or entity after\ntermination of his employment with Mellon so long as he does not have any involvement on behalf of any person or entity with respect to\nsoliciting, managing, administering, supporting or retaining the Relevant Financial Services business provided or proposed to be provided to a\nCustomer or Client of Mellon; and/or\n(b) (i) solicit by mail, phone, personal meeting, or by any other means, either directly or indirectly, the business or patronage of any Customer\nor Client of Mellon for himself or any other person or entity other than Mellon for the purpose of providing Relevant Financial Services;\n(ii) divert, entice, or otherwise take away from Mellon the business or patronage of any Customer or Client of Mellon, or attempt to do so; or\n(iii) solicit or induce any Customer or Client of Mellon to terminate or reduce its relationship with Mellon.\n3.02 Non-solicitation of Employees. O’Hanley covenants and agrees that during his employment with Mellon and during the Restricted Period that\nhe shall not, directly or indirectly, hire or employ, recruit solicit or induce, or attempt to hire, recruit solicit or induce, (or in any way assist another\nperson or enterprise in recruiting, soliciting or inducing) any employee of Mellon to leave Mellon or any affiliate for any reason whatsoever.\n3.03 Reasonableness of Restricted Period. O’Hanley acknowledges and agrees that the Restricted Period is reasonable and valid in duration and\nscope and in all other respects. O’Hanley also represents that his experience and capabilities are such that the enforcement of the provisions of this\nAgreement will not prevent him from earning a livelihood, and he acknowledges that it would cause Mellon serious and irreparable injury and cost if\nhe were to use his ability and knowledge in competition with Mellon or to otherwise breach the obligations contained in this Agreement.\n3.04 Extension of Restricted Period. O’Hanley agrees that the nonsolicitation obligations contained in this Agreement shall be extended by the\nlength of time during which he shall have been in breach of any of the provisions.\n3.05 Definitions. O’Hanley understands that for the purposes of this Agreement:\n(a) “Relevant Financial Services” shall mean: (i) institutional asset and investment management and related advisory services; (ii) international\nasset and investment management and related advisory services; (iii) mutual fund management and related advisory services; and (iv) and any\nother services or products provided by Mellon from time to time which are within the scope of O’Hanley’s responsibilities or at any time\nduring the twelve (12) months preceding the termination of his employment were within the scope of his responsibilities; and\n(b) “Customer” or “Client” of Mellon means any person or entity who (i) is receiving Relevant Financial Services from Mellon, or (ii) on the\ndate of termination of his employment with Mellon or its parent, subsidiary, affiliate related entity or\n5of10\nsuccessor received such services for compensation at any time during the one (1) year period immediately preceding the date of termination of\nhis employment, or (iii) O’Hanley solicited, directly or indirectly, in whole or in part, on behalf of Mellon to provide financial services within\none (1) year preceding the termination of his employment.\nARTICLE 4: DUTY OF LOYALTY\n4.01 Duty of Loyalty to Mellon. O’Hanley agrees that at all times during his employment by Mellon and in his position as Vice Chairman of MFC,\nhe owes Mellon a duty of loyalty and a duty to act in good faith. O’Hanley agrees that during his employment he will not individually, or in\ncombination with any other employer, employee or competitor of Mellon, violate or breach the terms of this agreement, Code of Conduct or Mellon\nSecurities Trading Policy.\n4.02 Cooperation. O’Hanley agrees that upon the termination of his employment, for any reason or no reason, including but not limited to\nresignation of employment, that he will cooperate with Mellon, upon reasonable notice and at reasonable times, in the prosecution and defense of\ncomplaints, investigations, litigation, arbitration and mediation of any complaints, claims or actions or regulatory review now in existence or that\nmay be threatened or brought in the future relating to events or occurrences that transpired while employed by Mellon or as Vice Chairman of MFC.\nO’Hanley also agrees that upon Mellon’s request, he will certify that he is in compliance with this Agreement.\n4.03 Prior Employer Restrictions. O’Hanley warrants that he is not subject or party to any agreement, understanding or undertaking that would\nprevent or restrict him from performing his employment duties or working with or on behalf of any customer or client. In addition, O’Hanley\nwarrants that his employment with Mellon does not violate any agreement, understanding or undertaking. Still further, O’Hanley agrees that he will\nnot in the course of performing duties for Mellon violate any confidentiality obligations that he may owe to others.\n4.04 Disclosure of Agreement. O’Hanley acknowledges and agrees to disclose the existence and terms of this Agreement so long as and to the extent\nthat such terms remain in effect to any prospective employer, partner or co-venturer prior to entering into an employment, partnership, or other\nbusiness relationship with such person or entity.\nARTICLE 5: SPECIAL, UNIQUE AND EXTRAORDINARY SERVICES\nO’Hanley acknowledges and agrees that in performing the job duties of his position that he provides Mellon with a special, unique and extraordinary\nservice.\n6of10\nARTICLE 6: WORKS FOR HIRE; PROPRIETARY DEVELOPMENT\n6.01 Property of Mellon. O’Hanley understands and agrees that any and all rights or interests that O’Hanley holds or obtains in any inventions,\nproducts, discoveries, processes, methods, computer software programs, models, techniques, formulae, designs, trade secrets, client, supplier, and\nvendor lists, sales and marketing plans, inventions, discoveries, improvements, copyrights, works of authorship, patent rights, trademarks or service\nmarks, and developments of any kind whatsoever, which are authored, conceived, reduced to practice, made, developed or created (alone or in\nconjunction with others, during regular hours of work otherwise) or otherwise obtained by O’Hanley during employment with Mellon or in the\nperformance of his duties as a Vice Chair of MFC which may directly or directly be useful in or relate to or arise out of such employment with\nMellon are expressly regarded as the exclusive property of Mellon or “works for hire” (the “Intellectual Property” ). The term Intellectual Property\ndoes not include inventions, products, discoveries, processes, methods, computer software programs, models, techniques, formulae, designs, trade\nsecrets, client, supplier, and vendor lists, sales and marketing plans, inventions, discoveries, improvements, copyrights, works of authorship, patent\nrights, trademarks or service marks which were in the possession of O’Hanley prior to his employment by Mellon and which were not obtained from\nor through Mellon.\n6.02 Disclosure; Assignment. O’Hanley agrees to promptly disclose to Mellon any and all such Inventions and deliver to Mellon, upon its\nrequest, a written description of such Intellectual Property and any available documentary or other materials evidencing such Intellectual Property.\nO’Hanley hereby assigns to Mellon the sole and exclusive right to such Intellectual Property and waives any license or other special right which\nO’Hanley may have or accrue therein, and that, upon request of Mellon, O’Hanley will execute and deliver any and all documents or instruments and\ntake any other action which Mellon shall deem necessary to assign to and vest completely in it, to perfect trademark, trade secret, copyright and\npatent protection with respect to, or to otherwise protect Mellon’s trade secrets and proprietary interest in, such Intellectual Property. O’Hanley will\nalso upon Mellon’s request, execute any documents necessary or advisable in the opinion of Mellon’s counsel to direct the issuance of patents,\ntrademarks or copyrights to Mellon or its designated affiliate with respect to such Intellectual Property as are to be Mellon’s exclusive property or to\nvest in Mellon title to such Intellectual Property, the expense of securing any patent, trademark or copyright, however, to be borne by Mellon.\nO’Hanley will hold for sole benefit of Mellon any Intellectual Property which is to be its exclusive property for which no patent, trademark or\ncopyright is issued.\n6.03 Survival. These obligations bind O’Hanley’s heirs and legal representatives and shall continue beyond the termination of O’Hanley’s\nemployment, regardless of reason, with respect to such Intellectual Property conceived of, reduced to practice, or developed by O’Hanley during the\nterm of employment with Mellon.\n6.04 Fees. Mellon agrees to pay any and all copyright, trademark and patent fees and expenses or other costs incurred by O’Hanley for any\nassistance rendered to Mellon pursuant to this Article 6 and to promptly reimburse O’Hanley for all expenses incurred by O’Hanley in perfecting its\nproperty rights in the Inventions. O’Hanley’s obligations to assign Inventions shall not apply to any invention about which O’Hanley can prove that:\n(i) the invention was developed entirely on O’Hanley’s own time and effort; (ii) no equipment, supplies, facilities, resources, trade secrets or\nconfidential information of Mellon was used in\n7of10\nthe development of the invention; (iii) the invention does not relate to the business of Mellon or to Mellon’s actual or anticipated research and\ndevelopment; and (iv) the invention does not result from any work otherwise performed by O’Hanley for Mellon.\nARTICLE 7: REMEDIES\n7.01 Injunctive Relief. O’Hanley agrees that any breach or threatened breach of any of the covenants contained in the Agreement would cause\nimmediate, material and irreparable harm to Mellon and that money damages would not provide an adequate remedy for Mellon to protect and\npreserve the status quo. Therefore, O’HANLEY CONSENTS TO THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER or A\nPRELIMINARY or PERMANENT INJUNCTION ordering that:\n(a) O’Hanley immediately return to Mellon all property and Confidential Information, whether original, duplicated, computerized,\nhandwritten, or in any other form whatsoever, and that O’Hanley be enjoined and restrained from using or disclosing any information\ncontained in such records; and\n(b) For a period of twelve (12) months, O’Hanley be enjoined and restrained from soliciting any client or customer whom O’Hanley served\nor whose name became known to O’Hanley while employed by Mellon or in the performance of his duties with Mellon, in any office\nand in any capacity; and\n(c) For a period of twelve (12) months, O’Hanley be enjoined and restrained from hiring, soliciting, or inducing any employee of Mellon to\nleave Mellon.\n7.02 O’Hanley agrees that Mellon shall have all of the rights and remedies available under law, or in equity, including, but not limited to, injunctive\nrelief, to a party enforcing any such covenant each of such rights and remedies to be independent of the other and severally enforceable including,\nbut not limited to, the right to have such covenants specifically enforced, and the right to require any violating party to account for and pay over to\nMellon all benefits derived or received by such violating party, or any of its subsidiaries or affiliates, as a result of any such breach of covenant.\n7.03 Jurisdiction. For purposes of Article 7, O’Hanley agrees to submit to, and confer exclusive jurisdiction on, the United States District Court or\nthe State Court, which has original jurisdiction for the judicial district, Pittsburgh Pennsylvania or county in which O’Hanley last worked in the\nUnited States for Mellon.\nARTICLE 8: EMPLOYMENT AT WILL\nNOTHING HEREIN IS A PROMISE OF EMPLOYMENT FOR A FIXED TERM. O’HANLEY AGREES THAT HE REMAINS AT ALL TIMES\nAN EMPLOYEE AT WILL. MELLON MAY TERMINATE O’HANLEY’S EMPLOYMENT FOR ANY REASON OR FOR NO REASON, JUST\nAS O’HANLEY MAY RESIGN AT ANY TIME.\n8of10\nARTICLE 9: ASSIGNMENT\nO’Hanley expressly acknowledges and agrees that Mellon may assign this Agreement, and its rights and obligations hereunder, to any other\nindividual, entity or organization that is a direct or indirect subsidiary of Mellon or which acquires (whether by purchase, merger, consolidation or\notherwise) all or substantially all of the business of Mellon, in either case without O’Hanley’s consent and without the necessity that this Agreement\nbe re-signed at the time of such transfer, and the term “Mellon” shall be deemed to include such entity or organization to which this Agreement is\nassigned. Any such transfer shall not in and of itself constitute a termination of O’Hanley’s employment by Mellon.\nARTICLE 10: MISCELLANEOUS\n10.01 Reasonableness; Severability. O’Hanley agrees that the covenants set forth herein are necessary and reasonable to protect Mellon’s\nConfidential Information, goodwill and business interests and therefore, valid in duration, geography and scope and in all other respects. If any court\nor tribunal determines that any of such covenants, or any part thereof, are invalid or unenforceable, the remaining covenants shall not thereby be\naffected and they shall be given full effect, without regard to the invalid portions. If any court or tribunal determined that all, or any part of the\ncovenants contained herein are unenforceable, because of the duration or scope of such provision, or for any other reason, such court or tribunal is\ndirected to reduce the duration or scope of such provision, as the case may be, so that, in its reduced form, such provision shall then be enforceable.\nIf any provision or provisions hereof shall be deemed invalid or unenforceable either in whole or in part, this Agreement shall be deemed amended\nto delete or modify, as necessary, the offending provision or provisions and to alter the bounds thereof in order to render it valid and enforceable.\n10.02 Additional Obligations. O’Hanley agrees that the obligations in this Agreement are in addition to and not in limitation or preemption of, all\nother obligations or prior agreements prior to the effective date of this Agreement, he has with Mellon under general or specific legal or equitable\nprinciples or its Code of Conduct or Securities Trading Policy or general or specific legal or equitable principles.\n10.03 Time to Consider Agreement. O’HANLEY ACKNOWLEDGES AND AGREES THAT HE HAS READ AND REVIEWED THIS\nAGREEMENT IN ITS ENTIRETY AND HAS BEEN GIVEN AN OPPORTUNITY TO CONSIDER THE AGREEMENT AND TO ASK\nMELLON QUESTIONS ABOUT IT. O’HANLEY ALSO AGREES THAT HE HAS BEEN GIVEN AN OPPORTUNITY TO CONSULT WITH\nAN ATTORNEY OF HIS CHOICE PRIOR TO EXECUTING THE AGREEMENT. BY EXECUTING THE AGREEMENT, O’HANLEY\nEXPRESSLY ACKNOWLEDGES THAT HE FULLY UNDERSTANDS THE TERMS OF THIS AGREEMENT AND KNOWINGLY AND\nFREELY AGREES TO ABIDE BY THEM.\n10.04 Governing Law. This Agreement shall be deemed to be made and entered into in the Commonwealth of Pennsylvania, and shall in all respects\nbe interpreted, enforced and governed under the laws of said Commonwealth.\n9of10\n10.05 Survival. O’Hanley acknowledges and agrees that the covenants and the restrictions contained in this Agreement are intended to protect\nMellon’s interest in its Confidential Information and its commercial relationships and goodwill with its customers, prospective customers, vendors,\nsuppliers, consultants and employees. O’Hanley acknowledges and agrees that the covenants and the restrictions contained in this Agreement shall\ncontinue in accordance with the express terms hereof regardless of any changes in title, position, duties, salary, compensation, benefits or other terms\nand conditions of employment, and shall survive the termination of O’Hanley’s employment.\n10.06 Headings. The underlined headings contained in this Agreement are for convenience of reference only and shall not affect the interpretation or\nconstruction of any provision hereof.\n4/20/2006\n/s/ Ronald P. O’Hanley\nDate\nRonald P. O’Hanley\n4/18/2006\nMellon Financial Corporation\nDate\nBy: /s/ Michael E. Bleier\nMichael E. Bleier,\nGeneral Counsel\n10of10
58c9aad6cf2abcb975e249ebea5d9688.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nLOGO\nConfidentiality and Non-Disclosure Agreement\nEffective Date: 1/1/2008 (“Effective Date”)\nThis confidentiality and non-disclosure agreement, (“Agreement”) is entered into by and between Autodesk, Inc., located at 111 Mclnnis Parkway,\nSan Rafael, California 94903 (“Autodesk”) and Moldflow Corporation, located at 492 Old Connecticut Path, Suite 401, Framingham, MA 01701,\nUnited States (“Company”). Each party has disclosed or anticipates disclosing to the other party certain Confidential Information (as defined below)\nin connection with the following business purpose: to share and evaluate information regarding each party’s business and technology for the purpose\nof exploring a potential business relationship between the parties (collectively, the “Business Purpose”). In consideration of the mutual promises and\ncovenants contained in this agreement and the disclosure of confidential information in connection with the business purpose, both parties agree as\nfollows:\n1. Definition of Confidential Information. “Confidential Information” shall mean all information, whether disclosed before or after the\nEffective Date, that is disclosed in written, oral, electronic, visual or other form by either party (each, as a “Disclosing Party”) to the\nother party (each, as a “Receiving Party”) and either (i) marked or designated as “confidential” or “proprietary” at the time of disclosure\nor (ii) otherwise clearly indicated to be confidential at the time of disclosure. Confidential Information may include, without limitation,\ncomputer programs, software or hardware products, product development plans, code, documentation, algorithms, know-how, trade\nsecrets, formulas, processes, procedures, ideas, research, inventions (whether patentable or not), copyrights, schematics and other\ntechnical, business, financial and marketing information, forecasts, strategies, names and expertise of employees and consultants and\ncustomer or partner information.\n2. Confidentiality Obligation. Receiving Party agrees to protect the Confidential Information by using the same degree of care as\nReceiving Party uses to protect its own confidential or proprietary information (but not less than a reasonable degree of care): (i) to\nprevent the unauthorized use, dissemination or publication of the Confidential Information (ii) not to divulge Confidential Information to\nany third party, (iii) not to make any use of such Confidential Information except for the Business Purpose, and (iv) not to copy except as\nreasonably required in direct support of the Business Purpose. Any copies made will include appropriate marking identifying same as\nconstituting or containing Confidential Information of Disclosing Party; and (v) not to reverse engineer any such Confidential\nInformation. Receiving Party shall limit the use of and access to Disclosing Party’s Confidential Information to Receiving Party’s\nemployees and to the employees of Receiving Party’s respective parent, subsidiaries and affiliated entities or authorized representatives\nwho have: (i) a need to know and have been notified that such information is Confidential Information to be used solely for the Business\nPurpose; and (ii) entered into binding confidentiality obligations no less protective of Disclosing Party than those contained in this\nAgreement. Receiving Party may disclose Confidential Information pursuant to any statutory or regulatory authority or court order,\nprovided Disclosing Party is given prompt prior written notice of such requirement and the scope of such disclosure is limited to the\nextent possible.\n3. Term. This Agreement shall have a term of one (1) year from the Effective Date. Either party may terminate this Agreement at anytime\nwithout liability for such termination however, the obligations of Receiving Party regarding use and disclosure of the Confidential\nInformation shall survive any termination or expiration of this Agreement for a period of two (2) years after the Agreement expiration\ndate or termination date.\n4. Exclusions. Confidential Information shall not include Confidential Information that from and after the date of disclosure: (i) is or\nbecomes a matter of public knowledge through no fault of Receiving Party; or (ii) was rightfully in Receiving Party’s possession prior to\nreceipt from Disclosing Party free of any obligation of confidence; or (iii) was rightfully disclosed to the Receiving Party by another\nperson without restriction as to use or disclosure; or (iv) is independently developed by Receiving Party without use of or reference to\nDisclosing Party’s Confidential Information.\n5. Ownership. All Confidential Information and any Derivatives thereof, unless otherwise specified in writing remains the property of the\nDisclosing Party. Receiving Party acquires no rights or licenses in the intellectual property of Disclosing Party including but not limited\nto, patents, trademarks, copyrights or service marks under this Agreement or through any disclosure hereunder, except the limited right\nto use such Confidential Information in accordance with this Agreement. For purposes of this Agreement, “Derivatives” means (i) for\ncopyrightable or copyrighted material, any translation, abridgement, revision or other form in which an existing work may be recast,\ntransformed or adapted; (ii) for patentable or patented material, any improvement thereon; and (iii) for material which is protected by\ntrade secret, any new material derived from such existing trade secret material, including new material which may be protected under\ncopyright, patent and/or trade secret laws.\n6. Equitable Relief. Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party’s Confidential\nInformation, there may be no adequate remedy at law for any breach of this Agreement. Upon any such breach, Disclosing Party shall be\nentitled to seek appropriate equitable relief, including but not limited to injunction in addition to what ever remedies it may have at law.\nReceiving Party will notify Disclosing Party in writing immediately upon learning of the occurrence of any unauthorized disclosure of\nConfidential Information or other breach of this Agreement. Receiving Party will assist Disclosing Party in remedying any unauthorized\nuse or disclosure of Confidential Information.\n7. Return of Confidential Information. Receiving Party shall return all Confidential Information, any tangible media of expression to the\nextent that such tangible media incorporate any Confidential Information of Disclosing Party, and any all copies thereof upon the request\nof Disclosing Party. Any Confidential Information which cannot be returned must be destroyed and so certified by Receiving Party.\n8. Warranty. Disclosing Party represents and warrants to Receiving Party that it has sufficient right, title and interest in and to the\nConfidential Information to enter into this Agreement, to disclose the Confidential Information to Receiving Party, to modify and copy\nthe Confidential Information, and to authorize and allow Receiving Party to do so. Disclosing Party hereby agrees to indemnify, defend\nand hold harmless Receiving Party from any and all damages, costs, claims and expenses incurred in connection with any claim that\nDisclosing Party does not have the rights set forth in this Paragraph 8, or that the access, use, or reproduction of the Confidential\nInformation for the purpose of evaluating a possible business relationship infringes a patent or copyright or violates a third party’s trade\nsecret rights.\nPage1of2\nLOGO\nConfidentiality and Non-Disclosure Agreement\n9. Export. Receiving Party will not export, directly or indirectly, any technical data acquired from Disclosing Party pursuant to this\nAgreement or any product utilizing any such data to any country for which the U.S . government or any agency thereof at the time of\nexport requires an export license or other government approval without first obtaining such license or approval.\n10. Notices. All notices required or permitted to be given under this Agreement shall be given in writing and shall be effective from the date\nsent by registered or certified mail, by hand, confirmed facsimile or overnight courier to the addresses of the parties set forth herein.\nNOTICE IS NOT DEEMED TO HAVE BEEN GIVEN TO AUTODESK UNLESS NOTICE HAS BEEN DELIVERED AT THE\nFOLLOWING ADDRESS: AUTODESK, INC., Attn: General Counsel, 111 McInnis Parkway San Rafael, CA 94903.\n11. Independent Development. Receiving Party reserves the right to develop and market any technology, products or services or pursue\nbusiness opportunities that compete with or are similar to those disclosed by Disclosing Party under this Agreement without the use of\nthe Disclosing Party’s Confidential Information. Nothing contained in this Agreement shall prohibit or restrict Receiving Party from\nemploying ideas, concepts or techniques which may be retained in the unaided human memory by Receiving Party’s personnel in the\ncourse of their review of the Confidential Information. The foregoing sentence shall not, however, grant Receiving Party any rights under\nany patents or copyrights.\n12. No Reliance. Autodesk Confidential Information may concern planned or future development efforts for existing or new Autodesk\nproducts and services. Autodesk Confidential Information is not intended to be a promise or guarantee of future delivery of products,\nservices or features but merely reflect our current plans, which may change. Accordingly, Autodesk Confidential Information may not be\nrelied on for purchasing decisions or for any other purpose.\n13. General. This Agreement supersedes all prior discussions and writings with respect to the subject matter hereof, and constitutes the\nentire agreement. All additions or modification of this Agreement must be made in writing and signed by both parties. Neither party shall\ndisclose, except to those persons involved in evaluating the Business Purpose, nor as required by law, the existence or the content of this\nAgreement, or that the parties are discussing a potential business relationship. No failure or delay in enforcing any right will be deemed a\nwaiver. This Agreement may not be assigned by Receiving Party without the prior written consent of Disclosing Party, which consent\nshall not be unreasonably withheld. The parties understand that nothing herein requires either party to proceed with any proposed\ntransaction or relationship in connection with which Confidential Information may be disclosed. In the event that any of the provisions of\nthis Agreement shall be held by a court unenforceable, the remaining portions hereof shall remain in full force and effect. This\nAgreement shall be governed by the laws of the State of California, without regard to conflicts of law provisions. All fully executed\ncopies of this Agreement shall be deemed originals.\nAcknowledged and Agreed:\nAutodesk, Inc.\nMoldflow Corporation\nSignature: /s/ Scott Vollmar\nSignature: /s/ Lori Henderson\nDate:\n1-4 -08\nDate:\n1-2 -08\nPrint Name: Scott Vollmar\nPrint Name: Lori Henderson\nTitle:\nDirector, Business Development\nTitle:\nEVP\nAutodesk Employee: Return fully executed original to Legal Dept., Attn. Contracts Manager 111 McInnis Parkway San Rafael, CA 94903\nPage2of2	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nl#.LOGO Confidentiality and Non-Disclosure Agreement\nEffective Date: 1/1/2008 (“Effective Date”)\nThis confidentiality and non-disclosure agreement, (“Agreement”) is entered into by and between Autodesk, Inc., located at 111 Mclnnis Parkway,\nSan Rafael, California 94903 (“Autodesk”) and Moldflow Corporation, located at 492 Old Connecticut Path, Suite 401, Framingham, MA 01701,\nUnited States (“Company”). Each party has disclosed or anticipates disclosing to the other party certain Confidential Information (as defined below)\nin connection with the following business purpose: to share and evaluate information regarding each party’s business and technology for the purpose\nof exploring a potential business relationship between the parties (collectively, the “Business Purpose™). In consideration of the mutual promises and\ncovenants contained in this agreement and the disclosure of confidential information in connection with the business purpose, both parties agree as\nfollows:\n1.  Definition of Confidential Information. “Confidential Information” shall mean all information, whether disclosed before or after the\nEffective Date, that is disclosed in written, oral, electronic, visual or other form by either party (each, as a “Disclosing Party”) to the\nother party (each, as a “Receiving Party”) and either (i) marked or designated as “confidential” or “proprietary” at the time of disclosure\nor (ii) otherwise clearly indicated to be confidential at the time of disclosure. Confidential Information may include, without limitation,\ncomputer programs, software or hardware products, product development plans, code, documentation, algorithms, know-how, trade\nsecrets, formulas, processes, procedures, ideas, research, inventions (whether patentable or not), copyrights, schematics and other\ntechnical, business, financial and marketing information, forecasts, strategies, names and expertise of employees and consultants and\ncustomer or partner information.\n2. Confidentiality Obligation. Receiving Party agrees to protect the Confidential Information by using the same degree of care as\nReceiving Party uses to protect its own confidential or proprietary information (but not less than a reasonable degree of care): (i) to\nprevent the unauthorized use, dissemination or publication of the Confidential Information (ii) not to divulge Confidential Information to\nany third party, (iii) not to make any use of such Confidential Information except for the Business Purpose, and (iv) not to copy except as\nreasonably required in direct support of the Business Purpose. Any copies made will include appropriate marking identifying same as\nconstituting or containing Confidential Information of Disclosing Party; and (v) not to reverse engineer any such Confidential\nInformation. Receiving Party shall limit the use of and access to Disclosing Party’s Confidential Information to Receiving Party’s\nemployees and to the employees of Receiving Party’s respective parent, subsidiaries and affiliated entities or authorized representatives\nwho have: (i) a need to know and have been notified that such information is Confidential Information to be used solely for the Business\nPurpose; and (ii) entered into binding confidentiality obligations no less protective of Disclosing Party than those contained in this\nAgreement. Receiving Party may disclose Confidential Information pursuant to any statutory or regulatory authority or court order,\nprovided Disclosing Party is given prompt prior written notice of such requirement and the scope of such disclosure is limited to the\nextent possible.\n3. Term. This Agreement shall have a term of one (1) year from the Effective Date. Either party may terminate this Agreement at anytime\nwithout liability for such termination however, the obligations of Receiving Party regarding use and disclosure of the Confidential\nInformation shall survive any termination or expiration of this Agreement for a period of two (2) years after the Agreement expiration\ndate or termination date.\n4.  Exclusions. Confidential Information shall not include Confidential Information that from and after the date of disclosure: (i) is or\nbecomes a matter of public knowledge through no fault of Receiving Party; or (ii) was rightfully in Receiving Party’s possession prior to\nreceipt from Disclosing Party free of any obligation of confidence; or (iii) was rightfully disclosed to the Receiving Party by another\nperson without restriction as to use or disclosure; or (iv) is independently developed by Receiving Party without use of or reference to\nDisclosing Party’s Confidential Information.\n5. Ownership. All Confidential Information and any Derivatives thereof, unless otherwise specified in writing remains the property of the\nDisclosing Party. Receiving Party acquires no rights or licenses in the intellectual property of Disclosing Party including but not limited\nto, patents, trademarks, copyrights or service marks under this Agreement or through any disclosure hereunder, except the limited right\nto use such Confidential Information in accordance with this Agreement. For purposes of this Agreement, “Derivatives” means (i) for\ncopyrightable or copyrighted material, any translation, abridgement, revision or other form in which an existing work may be recast,\ntransformed or adapted; (ii) for patentable or patented material, any improvement thereon; and (iii) for material which is protected by\ntrade secret, any new material derived from such existing trade secret material, including new material which may be protected under\ncopyright, patent and/or trade secret laws.\n6.  Equitable Relief. Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party’s Confidential\nInformation, there may be no adequate remedy at law for any breach of this Agreement. Upon any such breach, Disclosing Party shall be\nentitled to seek appropriate equitable relief, including but not limited to injunction in addition to what ever remedies it may have at law.\nReceiving Party will notify Disclosing Party in writing immediately upon learning of the occurrence of any unauthorized disclosure of\nConfidential Information or other breach of this Agreement. Receiving Party will assist Disclosing Party in remedying any unauthorized\nuse or disclosure of Confidential Information.\n7.  Return of Confidential Information. Receiving Party shall return all Confidential Information, any tangible media of expression to the\nextent that such tangible media incorporate any Confidential Information of Disclosing Party, and any all copies thereof upon the request\nof Disclosing Party. Any Confidential Information which cannot be returned must be destroyed and so certified by Receiving Party.\n8.  Warranty. Disclosing Party represents and warrants to Receiving Party that it has sufficient right, title and interest in and to the\nConfidential Information to enter into this Agreement, to disclose the Confidential Information to Receiving Party, to modify and copy\nthe Confidential Information, and to authorize and allow Receiving Party to do so. Disclosing Party hereby agrees to indemnify, defend\nand hold harmless Receiving Party from any and all damages, costs, claims and expenses incurred in connection with any claim that\nDisclosing Party does not have the rights set forth in this Paragraph 8, or that the access, use, or reproduction of the Confidential\nInformation for the purpose of evaluating a possible business relationship infringes a patent or copyright or violates a third party’s trade\nsecret rights.\nPage 1 of 2\nl#.LOGO Confidentiality and Non-Disclosure Agreement\n9.  Export. Receiving Party will not export, directly or indirectly, any technical data acquired from Disclosing Party pursuant to this\nAgreement or any product utilizing any such data to any country for which the U.S. government or any agency thereof at the time of\nexport requires an export license or other government approval without first obtaining such license or approval.\n10. Notices. All notices required or permitted to be given under this Agreement shall be given in writing and shall be effective from the date\nsent by registered or certified mail, by hand, confirmed facsimile or overnight courier to the addresses of the parties set forth herein.\nNOTICE IS NOT DEEMED TO HAVE BEEN GIVEN TO AUTODESK UNLESS NOTICE HAS BEEN DELIVERED AT THE\nFOLLOWING ADDRESS: AUTODESK, INC., Attn: General Counsel, 111 McInnis Parkway San Rafael, CA 94903.\n11. Independent Development. Receiving Party reserves the right to develop and market any technology, products or services or pursue\nbusiness opportunities that compete with or are similar to those disclosed by Disclosing Party under this Agreement without the use of\nthe Disclosing Party’s Confidential Information. Nothing contained in this Agreement shall prohibit or restrict Receiving Party from\nemploying ideas, concepts or techniques which may be retained in the unaided human memory by Receiving Party’s personnel in the\ncourse of their review of the Confidential Information. The foregoing sentence shall not, however, grant Receiving Party any rights under\nany patents or copyrights.\n12. No Reliance. Autodesk Confidential Information may concern planned or future development efforts for existing or new Autodesk\nproducts and services. Autodesk Confidential Information is not intended to be a promise or guarantee of future delivery of products,\nservices or features but merely reflect our current plans, which may change. Accordingly, Autodesk Confidential Information may not be\nrelied on for purchasing decisions or for any other purpose.\n13. General. This Agreement supersedes all prior discussions and writings with respect to the subject matter hereof, and constitutes the\nentire agreement. All additions or modification of this Agreement must be made in writing and signed by both parties. Neither party shall\ndisclose, except to those persons involved in evaluating the Business Purpose, nor as required by law, the existence or the content of this\nAgreement, or that the parties are discussing a potential business relationship. No failure or delay in enforcing any right will be deemed a\nwaiver. This Agreement may not be assigned by Receiving Party without the prior written consent of Disclosing Party, which consent\nshall not be unreasonably withheld. The parties understand that nothing herein requires either party to proceed with any proposed\ntransaction or relationship in connection with which Confidential Information may be disclosed. In the event that any of the provisions of\nthis Agreement shall be held by a court unenforceable, the remaining portions hereof shall remain in full force and effect. This\nAgreement shall be governed by the laws of the State of California, without regard to conflicts of law provisions. All fully executed\ncopies of this Agreement shall be deemed originals.\nAcknowledged and Agreed:\nAutodesk, Inc. Moldflow Corporation\nSignature:  /s/ Scott Vollmar Signature:  /s/ Lori Henderson\nDate: 1-4-08 Date: 1-2-08\nPrint Name: Scott Vollmar Print Name: Lori Henderson\nTitle: Director, Business Development Title: EVP\nAutodesk Employee: Return fully executed original to Legal Dept., Attn. Contracts Manager 111 McInnis Parkway San Rafael, CA 94903\nPage 2 of 2	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nALOGO\nConfidentiality and Non-Disclosure Agreement\nEffective Date: 1/1/2008 ("Effective Date")\nThis confidentiality and non-disclosure agreement, Agreement") is entered into by and between Autodesk, Inc., located at 111 Mclnnis Parkway,\nSan Rafael, California 94903 ("Autodesk") and Moldflow Corporation, located at 492 Old Connecticut Path, Suite 401, Framingham, MA\n01701,\nUnited States ("Company"). Each party has disclosed or anticipates disclosing to the other party certain Confidential Information (as defined below)\nin connection with the following business purpose: to share and evaluate information regarding each party's business and technology for the purpose\nof\nexploring\na\npotential\nbusiness\nrelationship\nbetween\nthe\nparties\n(collectively,\nthe\n"Business\nPurpose").\nIn\nconsideration\nof\nthe\nmutual\npromises\nand\ncovenants contained in this agreement and the disclosure of confidential information in connection with the business purpose, both parties agree as\nfollows:\n1.\nDefinition of Confidential Information. "Confidential Information" shall mean all information whether disclosed before or after the\nEffective Date, that is disclosed in written, oral, electronic, visual or other form by either party (each, as a "Disclosing Party") to the\nother party (each, as a "Receiving Party") and either (i) marked or designated as "confidential" or "proprietary" at the time of disclosure\nor (ii) otherwise clearly indicated to be confidential at the time of disclosure. Confidential Information may include, without limitation,\ncomputer programs, software or hardware products, product development plans, code, documentation, algorithms, know-how, trade\nsecrets, formulas, processes, procedures, ideas, research, inventions (whether patentable or not), copyrights, schematics and other\ntechnical, business, financial and marketing information, forecasts, strategies, names and expertise of employees and consultants and\ncustomer or partner information.\n2.\nConfidentiality Obligation. Receiving Party agrees to protect the Confidential Information by using the same degree of care as\nReceiving Party uses to protect its own confidential or proprietary information (but not less than a reasonable degree of care): (i) to\nprevent the unauthorized use, dissemination or publication of the Confidential Information (ii) not to divulge Confidential Information to\nany third party, (iii) not to make any use of such Confidential Information except for the Business Purpose, and (iv) not to copy except as\nreasonably required in direct support of the Business Purpose. Any copies made will include appropriate marking identifying same as\nconstituting or containing Confidential Information of Disclosing Party; and (v) not to reverse engineer any such Confidential\nInformation. Receiving Party shal limit the use of and access to Disclosing Party's Confidential Information to Receiving Party's\nemployees and to the employees of Receiving Party's respective parent, subsidiaries and affiliated entities or authorized representatives\nwho have: (i) a need to know and have been notified that such information is Confidential Information to be used solely for the Business\nPurpose; and (ii) entered into binding confidentiality obligations no less protective of Disclosing Party than those contained in this\nAgreement. Receiving Party may disclose Confidential Information pursuant to any statutory or regulatory authority or court order,\nprovided Disclosing Party is given prompt prior written notice of such requirement and the scope of such disclosure is limited to the\nextent possible.\n3.\nTerm. This Agreement shall have a term of one (1) year from the Effective Date. Either party may terminate this Agreement at anytime\nwithout\nliability\nfor\nsuch\ntermination\nhowever,\nthe\nobligations\nof\nReceiving\nParty\nregarding\nuse\nand\ndisclosure\nof\nthe\nConfidential\nInformation shall survive any termination or expiration of this Agreement for a period of two (2) years after the Agreement expiration\ndate or termination date.\n4.\nExclusions. Confidential Information shall not include Confidential Information that from and after the date of disclosure: (i) is or\nbecomes a matter of public knowledge through no fault of Receiving Party; or (ii) was rightfully in Receiving Party's possession prior to\nreceipt from Disclosing Party free of any obligation of confidence; or (iii) was rightfully disclosed to the Receiving Party by another\nperson without restriction as to use or disclosure; or (iv) is independently developed by Receiving Party without use of or reference to\nDisclosing Party's Confidential Information.\n5.\nOwnership. All Confidential Information and any Derivatives thereof, unless otherwise specified in writing remains the property of the\nDisclosing Party. Receiving Party acquires no rights or licenses in the intellectual property of Disclosing Party including but not limited\nto, patents, trademarks, copyrights or service marks under this Agreement or through any disclosure hereunder, except the limited right\nto use such Confidential Information in accordance with this Agreement. For purposes of this Agreement, "Derivatives" means (i) for\ncopyrightable or copyrighted material, any translation, abridgement, revision or other form in which an existing work may be recast,\ntransformed or adapted; (ii) for patentable or patented material, any improvement thereon; and (iii) for material which is protected by\ntrade secret, any new material derived from such existing trade secret material, including new material which may be protected under\ncopyright, patent and/or trade secret laws.\n6.\nEquitable Relief. Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party's Confidential\nInformation, there may be no adequate remedy at law for any breach of this Agreement. Upon any such breach, Disclosing Party shall be\nentitled to seek appropriate equitable relief, including but not limited to injunction in addition to what ever remedies it may have at law.\nReceiving Party will notify Disclosing Party in writing immediately upon learning of the occurrence of any unauthorized disclosure of\nConfidential Information or other breach of this Agreement. Receiving Party will assist Disclosing Party in remedying any unauthorized\nuse or disclosure of Confidential Information.\n7.\nReturn of Confidential Information. Receiving Party shall return all Confidential Information, any tangible media of expression to the\nextent that such tangible media incorporate any Confidential Information of Disclosing Party, and any all copies thereof upon the request\nof Disclosing Party. Any Confidential Information which cannot be returned must be destroyed and so certified by Receiving Party.\n8.\nWarranty. Disclosing Party represents and warrants to Receiving Party that it has sufficient right, title and interest in and to the\nConfidential Information to enter into this Agreement, to disclose the Confidential Information to Receiving Party, to modify and copy\nthe\nConfidential\nInformation,\nand\nto\nauthorize\nand\nallow\nReceiving\nParty\nto\ndo\nso.\nDisclosing\nParty\nhereby\nagrees\nto\nindemnify,\ndefend\nand hold harmless Receiving Party from any and all damages, costs, claims and expenses incurred in connection with any claim that\nDisclosing Party does not have the rights set forth in this Paragraph 8, or that the access, use, or reproduction of the Confidential\nInformation for the purpose of evaluating a possible business relationship infringes a patent or copyright or violates a third party's trade\nsecret rights.\nPage 1 of 2\nLOGO\nConfidentiality and Non-Disclosure Agreement\n9.\nExport. Receiving Party will not export, directly or indirectly, any technical data acquired from Disclosing Party pursuant to this\nAgreement or any product utilizing any such data to any country for which the U.S. government or any agency thereof at the time of\nexport requires an export license or other government approval without first obtaining such license or approval.\n10. Notices. All notices required or permitted to be given under this Agreement shall be given in writing and shall be effective from the date\nsent by registered or certified mail, by hand, confirmed facsimile or overnight courier to the addresses of the parties set forth herein.\nNOTICE IS NOT DEEMED TO HAVE BEEN GIVEN TO AUTODESK UNLESS NOTICE HAS BEEN DELIVERED AT THE\nFOLLOWING ADDRESS: AUTODESK, INC., Attn: General Counsel, 111 McInnis Parkway San Rafael, CA 94903.\n11. Independent Development. Receiving Party reserves the right to develop and market any technology, products or services or pursue\nbusiness\nopportunities\nthat\ncompete\nwith\nor\nare\nsimilar\nto\nthose\ndisclosed\nby\nDisclosing\nParty\nunder\nthis\nAgreement\nwithout\nthe\nuse\nof\nthe Disclosing Party's Confidential Information. Nothing contained in this Agreement shall prohibit or restrict Receiving Party from\nemploying ideas, concepts or techniques which may be retained in the unaided human memory by Receiving Party's personnel in the\ncourse of their review of the Confidential Information. The foregoing sentence shall not, however, grant Receiving Party any rights under\nany patents or copyrights.\n12.\nNo Reliance. Autodesk Confidential Information may concern planned or future development efforts for existing or new Autodesk\nproducts and services. Autodesk Confidential Information is not intended to be a promise or guarantee of future delivery of products,\nservices or features but merely reflect our current plans, which may change. Accordingly, Autodesk Confidential Information may not be\nrelied on for purchasing decisions or for any other purpose.\n13. General. This Agreement supersedes all prior discussions and writings with respect to the subject matter hereof, and constitutes the\nentire agreement. All additions or modification of this Agreement must be made in writing and signed by both parties. Neither party shall\ndisclose, except to those persons involved in evaluating the Business Purpose, nor as required by law, the existence or the content of this\nAgreement, or that the parties are discussing a potential business relationship. No failure or delay in enforcing any right will be deemed a\nwaiver. This Agreement may not be assigned by Receiving Party without the prior written consent of Disclosing Party, which consent\nshall not be unreasonably withheld. The parties understand that nothing herein requires either party to proceed with any proposed\ntransaction or relationship in connection with which Confidential Information may be disclosed. In the event that any of the provisions of\nthis Agreement shall be held by a court unenforceable, the remaining portions hereof shall remain in full force and effect. This\nAgreement shall be governed by the laws of the State of California, without regard to conflicts of law provisions. All fully executed\ncopies of this Agreement shall be deemed originals.\nAcknowledged and Agreed:\nAutodesk, Inc.\nMoldflow Corporation\nSignature: /s/ Scott Vollmar\nSignature:\n/s/ Lori Henderson\nDate:\n1-4-08\nDate:\n1-2-08\nPrint Name: Scott Vollmar\nPrint Name: Lori Henderson\nTitle:\nDirector, Business Development\nTitle:\nEVP\nAutodesk Employee: Return fully executed original to Legal Dept., Attn. Contracts Manager 111 McInnis Parkway San Rafael, CA 94903\nPage 2 of 2	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nLOGO\nConfidentiality and Non-Disclosure Agreement\nEffective Date: 1/1/2008 (“Effective Date”)\nThis confidentiality and non-disclosure agreement, (“Agreement”) is entered into by and between Autodesk, Inc., located at 111 Mclnnis Parkway,\nSan Rafael, California 94903 (“Autodesk”) and Moldflow Corporation, located at 492 Old Connecticut Path, Suite 401, Framingham, MA 01701,\nUnited States (“Company”). Each party has disclosed or anticipates disclosing to the other party certain Confidential Information (as defined below)\nin connection with the following business purpose: to share and evaluate information regarding each party’s business and technology for the purpose\nof exploring a potential business relationship between the parties (collectively, the “Business Purpose”). In consideration of the mutual promises and\ncovenants contained in this agreement and the disclosure of confidential information in connection with the business purpose, both parties agree as\nfollows:\n1. Definition of Confidential Information. “Confidential Information” shall mean all information, whether disclosed before or after the\nEffective Date, that is disclosed in written, oral, electronic, visual or other form by either party (each, as a “Disclosing Party”) to the\nother party (each, as a “Receiving Party”) and either (i) marked or designated as “confidential” or “proprietary” at the time of disclosure\nor (ii) otherwise clearly indicated to be confidential at the time of disclosure. Confidential Information may include, without limitation,\ncomputer programs, software or hardware products, product development plans, code, documentation, algorithms, know-how, trade\nsecrets, formulas, processes, procedures, ideas, research, inventions (whether patentable or not), copyrights, schematics and other\ntechnical, business, financial and marketing information, forecasts, strategies, names and expertise of employees and consultants and\ncustomer or partner information.\n2. Confidentiality Obligation. Receiving Party agrees to protect the Confidential Information by using the same degree of care as\nReceiving Party uses to protect its own confidential or proprietary information (but not less than a reasonable degree of care): (i) to\nprevent the unauthorized use, dissemination or publication of the Confidential Information (ii) not to divulge Confidential Information to\nany third party, (iii) not to make any use of such Confidential Information except for the Business Purpose, and (iv) not to copy except as\nreasonably required in direct support of the Business Purpose. Any copies made will include appropriate marking identifying same as\nconstituting or containing Confidential Information of Disclosing Party; and (v) not to reverse engineer any such Confidential\nInformation. Receiving Party shall limit the use of and access to Disclosing Party’s Confidential Information to Receiving Party’s\nemployees and to the employees of Receiving Party’s respective parent, subsidiaries and affiliated entities or authorized representatives\nwho have: (i) a need to know and have been notified that such information is Confidential Information to be used solely for the Business\nPurpose; and (ii) entered into binding confidentiality obligations no less protective of Disclosing Party than those contained in this\nAgreement. Receiving Party may disclose Confidential Information pursuant to any statutory or regulatory authority or court order,\nprovided Disclosing Party is given prompt prior written notice of such requirement and the scope of such disclosure is limited to the\nextent possible.\n3. Term. This Agreement shall have a term of one (1) year from the Effective Date. Either party may terminate this Agreement at anytime\nwithout liability for such termination however, the obligations of Receiving Party regarding use and disclosure of the Confidential\nInformation shall survive any termination or expiration of this Agreement for a period of two (2) years after the Agreement expiration\ndate or termination date.\n4. Exclusions. Confidential Information shall not include Confidential Information that from and after the date of disclosure: (i) is or\nbecomes a matter of public knowledge through no fault of Receiving Party; or (ii) was rightfully in Receiving Party’s possession prior to\nreceipt from Disclosing Party free of any obligation of confidence; or (iii) was rightfully disclosed to the Receiving Party by another\nperson without restriction as to use or disclosure; or (iv) is independently developed by Receiving Party without use of or reference to\nDisclosing Party’s Confidential Information.\n5. Ownership. All Confidential Information and any Derivatives thereof, unless otherwise specified in writing remains the property of the\nDisclosing Party. Receiving Party acquires no rights or licenses in the intellectual property of Disclosing Party including but not limited\nto, patents, trademarks, copyrights or service marks under this Agreement or through any disclosure hereunder, except the limited right\nto use such Confidential Information in accordance with this Agreement. For purposes of this Agreement, “Derivatives” means (i) for\ncopyrightable or copyrighted material, any translation, abridgement, revision or other form in which an existing work may be recast,\ntransformed or adapted; (ii) for patentable or patented material, any improvement thereon; and (iii) for material which is protected by\ntrade secret, any new material derived from such existing trade secret material, including new material which may be protected under\ncopyright, patent and/or trade secret laws.\n6. Equitable Relief. Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party’s Confidential\nInformation, there may be no adequate remedy at law for any breach of this Agreement. Upon any such breach, Disclosing Party shall be\nentitled to seek appropriate equitable relief, including but not limited to injunction in addition to what ever remedies it may have at law.\nReceiving Party will notify Disclosing Party in writing immediately upon learning of the occurrence of any unauthorized disclosure of\nConfidential Information or other breach of this Agreement. Receiving Party will assist Disclosing Party in remedying any unauthorized\nuse or disclosure of Confidential Information.\n7. Return of Confidential Information. Receiving Party shall return all Confidential Information, any tangible media of expression to the\nextent that such tangible media incorporate any Confidential Information of Disclosing Party, and any all copies thereof upon the request\nof Disclosing Party. Any Confidential Information which cannot be returned must be destroyed and so certified by Receiving Party.\n8. Warranty. Disclosing Party represents and warrants to Receiving Party that it has sufficient right, title and interest in and to the\nConfidential Information to enter into this Agreement, to disclose the Confidential Information to Receiving Party, to modify and copy\nthe Confidential Information, and to authorize and allow Receiving Party to do so. Disclosing Party hereby agrees to indemnify, defend\nand hold harmless Receiving Party from any and all damages, costs, claims and expenses incurred in connection with any claim that\nDisclosing Party does not have the rights set forth in this Paragraph 8, or that the access, use, or reproduction of the Confidential\nInformation for the purpose of evaluating a possible business relationship infringes a patent or copyright or violates a third party’s trade\nsecret rights.\nPage1of2\nLOGO\nConfidentiality and Non-Disclosure Agreement\n9. Export. Receiving Party will not export, directly or indirectly, any technical data acquired from Disclosing Party pursuant to this\nAgreement or any product utilizing any such data to any country for which the U.S . government or any agency thereof at the time of\nexport requires an export license or other government approval without first obtaining such license or approval.\n10. Notices. All notices required or permitted to be given under this Agreement shall be given in writing and shall be effective from the date\nsent by registered or certified mail, by hand, confirmed facsimile or overnight courier to the addresses of the parties set forth herein.\nNOTICE IS NOT DEEMED TO HAVE BEEN GIVEN TO AUTODESK UNLESS NOTICE HAS BEEN DELIVERED AT THE\nFOLLOWING ADDRESS: AUTODESK, INC., Attn: General Counsel, 111 McInnis Parkway San Rafael, CA 94903.\n11. Independent Development. Receiving Party reserves the right to develop and market any technology, products or services or pursue\nbusiness opportunities that compete with or are similar to those disclosed by Disclosing Party under this Agreement without the use of\nthe Disclosing Party’s Confidential Information. Nothing contained in this Agreement shall prohibit or restrict Receiving Party from\nemploying ideas, concepts or techniques which may be retained in the unaided human memory by Receiving Party’s personnel in the\ncourse of their review of the Confidential Information. The foregoing sentence shall not, however, grant Receiving Party any rights under\nany patents or copyrights.\n12. No Reliance. Autodesk Confidential Information may concern planned or future development efforts for existing or new Autodesk\nproducts and services. Autodesk Confidential Information is not intended to be a promise or guarantee of future delivery of products,\nservices or features but merely reflect our current plans, which may change. Accordingly, Autodesk Confidential Information may not be\nrelied on for purchasing decisions or for any other purpose.\n13. General. This Agreement supersedes all prior discussions and writings with respect to the subject matter hereof, and constitutes the\nentire agreement. All additions or modification of this Agreement must be made in writing and signed by both parties. Neither party shall\ndisclose, except to those persons involved in evaluating the Business Purpose, nor as required by law, the existence or the content of this\nAgreement, or that the parties are discussing a potential business relationship. No failure or delay in enforcing any right will be deemed a\nwaiver. This Agreement may not be assigned by Receiving Party without the prior written consent of Disclosing Party, which consent\nshall not be unreasonably withheld. The parties understand that nothing herein requires either party to proceed with any proposed\ntransaction or relationship in connection with which Confidential Information may be disclosed. In the event that any of the provisions of\nthis Agreement shall be held by a court unenforceable, the remaining portions hereof shall remain in full force and effect. This\nAgreement shall be governed by the laws of the State of California, without regard to conflicts of law provisions. All fully executed\ncopies of this Agreement shall be deemed originals.\nAcknowledged and Agreed:\nAutodesk, Inc.\nMoldflow Corporation\nSignature: /s/ Scott Vollmar\nSignature: /s/ Lori Henderson\nDate:\n1-4 -08\nDate:\n1-2 -08\nPrint Name: Scott Vollmar\nPrint Name: Lori Henderson\nTitle:\nDirector, Business Development\nTitle:\nEVP\nAutodesk Employee: Return fully executed original to Legal Dept., Attn. Contracts Manager 111 McInnis Parkway San Rafael, CA 94903\nPage2of2
5a7096b1759e43c26444c80f86f8fdf1.pdf	effective_date jurisdiction party term	EX-99.(E)(13) 10 a2082556zex-99_e13.htm EXHIBIT 99(E)(13)\nQuickLinks -- Click here to rapidly navigate through this document\nExhibit (e)(13)\nMUTUAL NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT\nThis Mutual Non-Disclosure and Non-Solicitation Agreement (this "Agreement"), is made as of September 17, 2001 between EarthLink, Inc. a\nDelaware corporation ("EarthLink"), and PeoplePC, Inc., a Delaware corporation ("PeoplePC"). EarthLink and PeoplePC are sometimes referred to\nherein individually as a "Party" and collectively as the "Parties."\n1. Purpose. EarthLink and PeoplePC wish to have discussions relating to a potential transaction (the "Transaction") between EarthLink\n(and/or its subsidiaries and stockholders) and PeoplePC (and/or its subsidiaries and stockholders). In the course of such discussions, each Party\nexpects to make available to the other Party and its Representatives (as defined herein) Evaluation Material (as defined herein) concerning the\nbusinesses, financial condition, operations, assets, properties, liabilities, and prospects of such Party. As a condition to making such information\navailable, each Party is entering this Agreement and agrees that all Evaluation Material received by it or its Representatives from the other Party or\nany of its Representatives shall be treated in accordance with this Agreement.\n2. Certain Definitions. As used in this Agreement: (i) the term "Receiving Party" means the Party receiving Evaluation Material; (ii) the\nterm "Furnishing Party" means the Party providing Evaluation Material or causing Evaluation Material to be provided; (iii) the term\n"Representatives" means the directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, investment\nbankers, financial advisors and other consultants and advisors engaged in connection with the review and evaluation of the Transaction) of the\nspecified Party; and (iv) the term "Evaluation Material" means all proprietary and confidential information concerning the Furnishing Party or any\nof its subsidiaries or affiliates, whether in verbal, visual, written, electronic or other form, which is made available by the Furnishing Party or any of\nits Representatives to the Receiving Party or any of its Representatives ("Primary Evaluation Material"), together, in each case, with all notes,\nmemoranda, summaries, analyses, studies, compilations and other writings relating thereto or based in whole or in part thereon prepared by the\nReceiving Party or any of its Representatives ("Derivative Evaluation Material"). Notwithstanding the foregoing, the term "Evaluation Material"\nshall not include, and the Parties' obligations herein (other than their obligations under paragraph 6 of this Agreement) shall not extend to\ninformation which (a) was rightfully in the possession of the Receiving Party prior to disclosure by the Furnishing Party; (b) was or is independently\ndeveloped by the Receiving Party without use of the Evaluation Material; (c) is now or hereafter becomes available to the public other than as a\nresult of disclosure by the Receiving Party or any of the Receiving Party's Representatives in violation of this Agreement; (d) becomes available to\nthe Receiving Party or any of its Representatives on a non-confidential basis from a source other than the Furnishing Party or any of its\nRepresentatives and such source is not, to the knowledge of the Receiving Party following reasonable inquiry, under any obligation to the Furnishing\nParty or any of its Representatives (whether contractual, legal or fiduciary) to keep such information confidential; or (e) is transmitted by or on\nbehalf of the Furnishing Party after receiving written notification from the Receiving Party of the termination of discussions relating to the\nTransaction or written instructions from the Receiving Party not to furnish any further Evaluation Material.\n3. Confidentiality and Use of Evaluation Material.\n(a) Confidentiality of Evaluation Material. All Evaluation Material (i) shall be used solely for the purpose of evaluating and\nconsidering the Transaction; (ii) shall be kept strictly confidential by the Receiving Party; and (iii) shall be provided by the Receiving Party\nsolely to those of its Representatives to whom disclosure is reasonably required to facilitate the Receiving Party's evaluation or consideration\nof the Transaction, it being the intention of the Parties to restrict the dissemination of Evaluation Material to as small a working group as\npracticable. The Parties agree that all Evaluation Material is and shall remain the property of the Furnishing Party. Before providing access to\nEvaluation Material to any Representative, the Receiving Party shall inform such Representative of the confidentiality of the Evaluation\nMaterial, and shall advise such\nRepresentative that, by accepting possession of or access to such information, such Representative is agreeing to be bound by this\nAgreement. Each Party shall be responsible for any breach of this Agreement by any of its Representatives.\n(b) Compulsory Disclosure of Evaluation Material. If the Receiving Party or its Representatives are requested or required in any\njudicial, arbitral or administrative proceeding or by any governmental or regulatory authority to disclose any Evaluation Material (whether by\ndeposition, interrogatory, request for documents, subpoena, civil investigative demand, or otherwise), or the Receiving Party is so requested\nor required to disclose any of the facts disclosure of which is prohibited under paragraph (3)(e) of this Agreement, the Receiving Party shall\ngive the Furnishing Party prompt notice of such request so that the Furnishing Party may seek an appropriate protective order or other\nappropriate remedy and/or waive compliance with the provisions of this Agreement, and, upon the Furnishing Party's request and at the\nFurnishing Party's expense, shall reasonably cooperate with the Furnishing Party in seeking such an order. If, in the absence of a protective\norder or other remedy or the receipt of a waiver by the Furnishing Party, the Receiving Party is nontheless, in the opinion of the Receiving\nParty's or (in the case of disclosure requested or required of a Representative, such Representative's) outside counsel or General Counsel,\nlegally compelled to disclose Evaluation Material, the Receiving Party shall disclose only that portion of the Evaluation Material which the\nReceiving Party is legally required to disclose and upon the Furnishing Party's request and at the Furnishing Party's expense, shall use all\nrequisite reasonable efforts to obtain assurances that confidential treatment will be accorded to such Evaluation Material to the extent such\nassurances are available. Subject to the foregoing conditions and limitations, the Receiving Party may disclose Evaluation Material under the\ncircumstances set forth in this paragraph (b) without liability hereunder.\n(c) Other Public Disclosure. Except (i) for such public disclosure as may be necessary, in the good faith judgment of the disclosing\nParty consistent with advice of counsel, for the disclosing Party not to be in violation of any applicable law, regulation or order, or (ii) with\nthe prior written consent of the order Party, neither Part shall:\n(x) make any disclosure (and each Party shall direct its Representatives not to make any disclosure) to any person of (A) the\nfact that discussions, negotiations or investigations are taking or have taken place concerning a Transaction, (B) the existence or\ncontents of this Agreement, or the fact that either Party has requested or received Evaluation Material from the other Party, or (C) any\nof the terms, conditions or other facts with respect to any proposed Transaction, including the status of the discussions or negotiations\nrelated thereto, or\n(y) make any public statement concerning a proposed Transaction.\n(d) Notice If either Party proposes to make any disclosure in reliance on clause (i) above, the disclosing Party shall, to the extent\npracticable, provide the other Party with the text of the proposed disclosure as far in advance of its disclosure as is practicable and shall in\ngood faith consult with and consider the suggestions of the other Party concerning the nature and scope of the information it proposes to\ndisclose. Notwithstanding the foregoing, a Party may make such public announcement or public statement if in the opinion of such Party's\noutside counsel or General Counsel, such public announcement or public statement is necessary to avoid committing a violation of law or of\nany rule or regulation of any securities association, stock exchange or national securities quotation system on which such Party's securities\nare listed or trade. In such event, the disclosing Party shall use its reasonable best efforts to give advance notice to the other Party and to\nconsult with the other Party on the timing and content of any such public announcement or public statement.\n(e) Certain Securities Law Restrictions. Each Party acknowledges that the Evaluation Material may contain material nonpublic\ninformation concerning the Furnishing Party. Each Party\n2\nfurther acknowledges its awareness of the restrictions imposed by federal and state securities laws on persons in possession of material\nnonpublic information. Nothing herein shall constitute an admission by either Party that any Evaluation Material in fact contains material\nnonpublic information concerning the Furnishing Party.\n(f) Contact with Employees and Representatives. Neither Party shall communicate with any employee of the other Party regarding\nthe Transaction or disclose any Evaluation Material to any employee or Representative of the other Party, other than the employees and\nRepresentatives named on the working group lists provided by the Parties from time to time.\n(g) General. Notwithstanding any other provision of this Agreement, neither Party will be restricted from using the information\ncontained in the Evaluation Material that is retained in the minds of Representatives who have had access to the other Party's Evaluation\nMaterial, unless such use shall infringe on any of such Party's patent rights, trademark rights or copyright rights.\n4. Accuracy of Evaluation Material: No Representations or Warranties. Each Party acknowledges and agrees (a) that no representation or\nwarranty, express or implied, is made by either Party or any of its respective Representatives as to the accuracy or completeness of the Evaluation\nMaterial, and (b) that the Parties shall be entitled to rely only on those representations and warranties (if any) that may be made in a definitive\nwritten agreement for the Transaction, signed and delivered by both Parties, and then only to the extent, and subject to the limitations, provided\ntherein.\n5. No Solicitation.\n(a) For a period of one year subsequent to the termination of discussions regarding a Transaction, neither Party shall, without the prior\nwritten consent of the other Party, directly or indirectly solicit for hire any person currently employed by the other Party (or any of its\nsubsidiaries) with whom the hiring Party first has contact, or who first becomes known to the hiring Party. In the course of the Parties'\ndiscussions and due diligence with respect to the proposed Transaction; provided, however, that the foregoing provision shall not prevent\neither Party, without such consent, from employing any employee who (i) contacts the hiring Party directly at his or her own initiative\nwithout any direct or indirect solicitation by or encouragement from the hiring Party, (ii) responds to a mass media solicitation or\nadvertisement consistent with the hiring Party's past practices that is not directed at employees of the other Party or (iii) is identified by a\nthird party executive search firm or employment agency without any assistance from such Party.\n(b) For a period one year from the date of this Agreement, neither Party shall, without the prior written consent of the other Party or the\nother Party's board of directors, either directly or indirectly through any affiliate or Representative or otherwise: (i) acquire, offer to acquire,\nor agree to acquire, by purchase, tender offer, merger, consolidation, share exchange or otherwise, ownership or control of any voting\nsecurities, or any direct or indirect right to acquire any voting securities, of the other Party, any subsidiary thereof, or any successor\ncorporation thereto; (ii) make, or in any way participate in any "solicitation" of "proxies" (as such terms are used in the rules and regulations\nof the Securities and Exchange Commission) to vote, or seek to advise or influence any person or entity with respect to the voting of, any\nvoting securities of the other Party; (iii) seek or propose to influence or control the management or policies of the other Party; (iv) make any\npublic announcement with respect to, or submit a proposal for, or offer of any merger, acquisition or other business combination or\nextraordinary transaction involving the other Party or any of its subsidiaries or any securities or assets of the other Party or any of its\nsubsidiaries; (v) form, join or in any way participate in a "group"( as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended) in connection with any of the foregoing, or (vi) request the other Party or any of the other party's Representatives to amend or\nwaive any provision of this paragraph 5(b) in any manner which may reasonably be expected to compel or result in public disclosure;\nprovided that such limitations shall expire upon the public\n3\nannouncement of a third party tender offer for more than fifty percent of the outstanding voting securities of the other Party or a business\ncombination between the other Party and a third party. Each Party (the "Representing Party") represents and warrants to the other Party that\nas of the date of this Agreement the Representing Party does not directly or indirectly own or possess voting or dispositive control over any\nvoting securities of the other Party.\n6. Return and Destruction of Evaluation Material. At any time after termination of discussions by either Party with respect to the\nTransaction, upon the request of the Furnishing Party, the Receiving Party shall promptly (and in no event later than five business days after such\nrequest) (a) redeliver or cause to be redelivered to the Furnishing Party all copies of all Primary Evaluation Material in the possession or control of\nthe Receiving Party or its Representatives which is in a visual or written format and erase or destroy all copies of all such Primary Evaluation\nMaterial which is stored in electronic format, and (b) destroy or cause to be destroyed all Derivative Evaluation Material in the possession or control\nof the Receiving Party or any of its Representatives. Nothing herein shall obligate the Receiving Party to provide any Derivative Evaluation Material\nto the Furnishing Party. Notwithstanding the return, destruction or erasure of Evaluation Material hereunder, the Receiving Party and its\nRepresentatives shall continue to be bound by their confidentiality and other obligations hereunder.\n7. Remedies. Each Party agrees that money damages would not be a sufficient remedy for any breach of any provision of this Agreement by\nit or any of its Representatives, and that in addition to all other remedies which either Party may have, each Party shall be entitled to specific\nperformance and injunctive or other equitable relief as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive\nremedies for a breach of this Agreement but shall be in addition to all other remedies available at law or in equity. No failure or delay by either Party\nin exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any\nother or further exercise thereof or the exercise of any right, power or privilege hereunder. In the event that either Party should institute proceedings\nto enforce any provision of this Agreement, the prevailing Party in such proceedings shall be entitled to recover all expenses relating to the\nenforcement of this Agreement, including reasonable attorneys' fees and costs, in addition to any other remedies.\n8. Miscellaneous.\n(a) No License. Neither Party grants a license, by implication or otherwise, under any of its trade secrets or other intellectual\nproperty rights to the Receiving Party. The terms of this Agreement shall not be construed to limit either Party's right to independently\ndevelop or acquire products without use of the other Party's Evaluation Material. The Furnishing Party acknowledges that the Receiving\nParty may currently or in the future develop information internally, or receive information from other parties, that is similar to the Evaluation\nMaterial. Accordingly, nothing in this Agreement will be construed as a representation or agreement that the Receiving Party will not\ndevelop or have developed for its products, concepts, systems, or techniques that are similar to or compete with the products, concepts,\nsystems or techniques contemplated by or embodied in the Evaluation Material, provided that the Receiving Party does not violate any of its\nobligations under this Agreement in connection with such development.\n(b) Entire Agreement. This Agreement contains the sole and entire agreement between the Parties with respect to the confidentiality\nof the Evaluation Material and the confidentiality of their discussions, negotiations and investigations concerning a Transaction.\n(c) Amendment and Waiver. This Agreement may be amended, modified or waived only by a separate written instrument duly signed\nand delivered by or on behalf of both Parties.\n4\n(d) Severability. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect the validity or\nenforceability of any other provision of this Agreement unless the enforcement of such provision in such circumstances would be\ninequitable.\n(e) No Obligation to Complete a Transaction. It is expressly understood that this Agreement is not intended to, and does not,\nconstitute an agreement to consummate a Transaction, to conduct or continue negotiations with respect to a Transaction, or to enter into a\ndefinitive agreement with respect to a Transaction, and neither Party shall have any rights or obligations of any kind whatsoever with respect\nto such a Transaction by virtue of this Agreement or by virtue of any other written or oral expression by the Parties' respective\nRepresentatives unless and until a definitive agreement with respect to a Transaction is executed and delivered by both Parties, other than for\nthe matters specifically agreed to herein. Both Parties further acknowledge and agree that each Party reserves the right, in its sole discretion,\nto provide or not to provide Evaluation Material to the Receiving Party under this Agreement, to reject any and all proposals made by the\nother Party or any of its Representatives with regard to a Transaction, and to terminate discussions and negotiations at any time. If either\nParty determines not to proceed with negotiations with respect to a Transaction, it will promptly inform the other Party of such\ndetermination.\n(f) Governing Law; Forum. This Agreement shall be governed by and construed in accordance with the internal laws of the State of\nGeorgia, without regard to the principles of the conflict of laws thereof. Each Party consents and submits to the exclusive jurisdiction of the\nfederal and state courts in the State of Georgia, and the city of Atlanta, for the adjudication of any action, suit, or proceeding arising out of or\notherwise relating to this Agreement.\n[Signatures on following page]\n5\nThe Parties have executed this Agreement as of the date first written above.\nEarthLink, Inc.\nPeoplePC, Inc.\nBy:\n/s/ BRINTON O.C. YOUNG\nBy:\n/s/ CHARLES ORTMEYER\nName:\nBrinton O.C. Young\nName:\nCharles Ortmeyer\nTitle:\nEVP of Strategic Planning\nTitle:\nSVP and General Counsel\n6\nQuickLinks\nMUTUAL NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT	EX-99.(E)(13) 10 a2082556zex-99_e13.htm EXHIBIT 99(E)(13)\nQuickLinks -- Click here to rapidly navigate through this document\nExhibit (e)(13)\nMUTUAL NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT\nThis Mutual Non-Disclosure and Non-Solicitation Agreement (this "Agreement"), is made as of September 17, 2001 between EarthLink, Inc. a\nDelaware corporation ("EarthLink"), and PeoplePC, Inc., a Delaware corporation ("PeoplePC"). EarthLink and PeoplePC are sometimes referred to\nherein individually as a "Party" and collectively as the "Parties."\n1. Purpose. EarthLink and PeoplePC wish to have discussions relating to a potential transaction (the "Transaction") between EarthLink\n(and/or its subsidiaries and stockholders) and PeoplePC (and/or its subsidiaries and stockholders). In the course of such discussions, each Party\nexpects to make available to the other Party and its Representatives (as defined herein) Evaluation Material (as defined herein) concerning the\nbusinesses, financial condition, operations, assets, properties, liabilities, and prospects of such Party. As a condition to making such information\navailable, each Party is entering this Agreement and agrees that all Evaluation Material received by it or its Representatives from the other Party or\nany of its Representatives shall be treated in accordance with this Agreement.\n2. Certain Definitions. As used in this Agreement: (i) the term "Receiving Party" means the Party receiving Evaluation Material; (ii) the\nterm "Furnishing Party" means the Party providing Evaluation Material or causing Evaluation Material to be provided; (iii) the term\n"Representatives" means the directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, investment\nbankers, financial advisors and other consultants and advisors engaged in connection with the review and evaluation of the Transaction) of the\nspecified Party; and (iv) the term "Evaluation Material" means all proprietary and confidential information concerning the Furnishing Party or any\nof its subsidiaries or affiliates, whether in verbal, visual, written, electronic or other form, which is made available by the Furnishing Party or any of\nits Representatives to the Receiving Party or any of its Representatives ("Primary Evaluation Material"), together, in each case, with all notes,\nmemoranda, summaries, analyses, studies, compilations and other writings relating thereto or based in whole or in part thereon prepared by the\nReceiving Party or any of its Representatives ("Derivative Evaluation Material"). Notwithstanding the foregoing, the term "Evaluation Material"\nshall not include, and the Parties' obligations herein (other than their obligations under paragraph 6 of this Agreement) shall not extend to\ninformation which (a) was rightfully in the possession of the Receiving Party prior to disclosure by the Furnishing Party; (b) was or is independently\ndeveloped by the Receiving Party without use of the Evaluation Material; (c) is now or hereafter becomes available to the public other than as a\nresult of disclosure by the Receiving Party or any of the Receiving Party's Representatives in violation of this Agreement; (d) becomes available to\nthe Receiving Party or any of its Representatives on a non-confidential basis from a source other than the Furnishing Party or any of its\nRepresentatives and such source is not, to the knowledge of the Receiving Party following reasonable inquiry, under any obligation to the Furnishing\nParty or any of its Representatives (whether contractual, legal or fiduciary) to keep such information confidential; or (e) is transmitted by or on\nbehalf of the Furnishing Party after receiving written notification from the Receiving Party of the termination of discussions relating to the\nTransaction or written instructions from the Receiving Party not to furnish any further Evaluation Material.\n3. Confidentiality and Use of Evaluation Material.\n(@) Confidentiality of Evaluation Material. ~All Evaluation Material (i) shall be used solely for the purpose of evaluating and\nconsidering the Transaction; (ii) shall be kept strictly confidential by the Receiving Party; and (iii) shall be provided by the Receiving Party\nsolely to those of its Representatives to whom disclosure is reasonably required to facilitate the Receiving Party's evaluation or consideration\nof the Transaction, it being the intention of the Parties to restrict the dissemination of Evaluation Material to as small a working group as\npracticable. The Parties agree that all Evaluation Material is and shall remain the property of the Furnishing Party. Before providing access to\nEvaluation Material to any Representative, the Receiving Party shall inform such Representative of the confidentiality of the Evaluation\nMaterial, and shall advise such\nRepresentative that, by accepting possession of or access to such information, such Representative is agreeing to be bound by this\nAgreement. Each Party shall be responsible for any breach of this Agreement by any of its Representatives.\n(b) Compulsory Disclosure of Evaluation Material. If the Receiving Party or its Representatives are requested or required in any\njudicial, arbitral or administrative proceeding or by any governmental or regulatory authority to disclose any Evaluation Material (whether by\ndeposition, interrogatory, request for documents, subpoena, civil investigative demand, or otherwise), or the Receiving Party is so requested\nor required to disclose any of the facts disclosure of which is prohibited under paragraph (3)(e) of this Agreement, the Receiving Party shall\ngive the Furnishing Party prompt notice of such request so that the Furnishing Party may seek an appropriate protective order or other\nappropriate remedy and/or waive compliance with the provisions of this Agreement, and, upon the Furnishing Party's request and at the\nFurnishing Party's expense, shall reasonably cooperate with the Furnishing Party in seeking such an order. If, in the absence of a protective\norder or other remedy or the receipt of a waiver by the Furnishing Party, the Receiving Party is nontheless, in the opinion of the Receiving\nParty's or (in the case of disclosure requested or required of a Representative, such Representative's) outside counsel or General Counsel,\nlegally compelled to disclose Evaluation Material, the Receiving Party shall disclose only that portion of the Evaluation Material which the\nReceiving Party is legally required to disclose and upon the Furnishing Party's request and at the Furnishing Party's expense, shall use all\nrequisite reasonable efforts to obtain assurances that confidential treatment will be accorded to such Evaluation Material to the extent such\nassurances are available. Subject to the foregoing conditions and limitations, the Receiving Party may disclose Evaluation Material under the\ncircumstances set forth in this paragraph (b) without liability hereunder.\n(c) Other Public Disclosure. Except (i) for such public disclosure as may be necessary, in the good faith judgment of the disclosing\nParty consistent with advice of counsel, for the disclosing Party not to be in violation of any applicable law, regulation or order, or (ii) with\nthe prior written consent of the order Party, neither Part shall:\n(x) make any disclosure (and each Party shall direct its Representatives not to make any disclosure) to any person of (A) the\nfact that discussions, negotiations or investigations are taking or have taken place concerning a Transaction, (B) the existence or\ncontents of this Agreement, or the fact that either Party has requested or received Evaluation Material from the other Party, or (C) any\nof the terms, conditions or other facts with respect to any proposed Transaction, including the status of the discussions or negotiations\nrelated thereto, or\n(v) make any public statement concerning a proposed Transaction.\n(d) Notice If either Party proposes to make any disclosure in reliance on clause (i) above, the disclosing Party shall, to the extent\npracticable, provide the other Party with the text of the proposed disclosure as far in advance of its disclosure as is practicable and shall in\ngood faith consult with and consider the suggestions of the other Party concerning the nature and scope of the information it proposes to\ndisclose. Notwithstanding the foregoing, a Party may make such public announcement or public statement if in the opinion of such Party's\noutside counsel or General Counsel, such public announcement or public statement is necessary to avoid committing a violation of law or of\nany rule or regulation of any securities association, stock exchange or national securities quotation system on which such Party's securities\nare listed or trade. In such event, the disclosing Party shall use its reasonable best efforts to give advance notice to the other Party and to\nconsult with the other Party on the timing and content of any such public announcement or public statement.\n(e) Certain Securities Law Restrictions. Each Party acknowledges that the Evaluation Material may contain material nonpublic\ninformation concerning the Furnishing Party. Each Party\nfurther acknowledges its awareness of the restrictions imposed by federal and state securities laws on persons in possession of material\nnonpublic information. Nothing herein shall constitute an admission by either Party that any Evaluation Material in fact contains material\nnonpublic information concerning the Furnishing Party.\n(f) Contact with Employees and Representatives. Neither Party shall communicate with any employee of the other Party regarding\nthe Transaction or disclose any Evaluation Material to any employee or Representative of the other Party, other than the employees and\nRepresentatives named on the working group lists provided by the Parties from time to time.\n(g) General. Notwithstanding any other provision of this Agreement, neither Party will be restricted from using the information\ncontained in the Evaluation Material that is retained in the minds of Representatives who have had access to the other Party's Evaluation\nMaterial, unless such use shall infringe on any of such Party's patent rights, trademark rights or copyright rights.\n4. Accuracy of Evaluation Material: No Representations or Warranties. Each Party acknowledges and agrees (a) that no representation or\nwarranty, express or implied, is made by either Party or any of its respective Representatives as to the accuracy or completeness of the Evaluation\nMaterial, and (b) that the Parties shall be entitled to rely only on those representations and warranties (if any) that may be made in a definitive\nwritten agreement for the Transaction, signed and delivered by both Parties, and then only to the extent, and subject to the limitations, provided\ntherein.\n5. No Solicitation.\n(a) For a period of one year subsequent to the termination of discussions regarding a Transaction, neither Party shall, without the prior\nwritten consent of the other Party, directly or indirectly solicit for hire any person currently employed by the other Party (or any of its\nsubsidiaries) with whom the hiring Party first has contact, or who first becomes known to the hiring Party. In the course of the Parties'\ndiscussions and due diligence with respect to the proposed Transaction; provided, however, that the foregoing provision shall not prevent\neither Party, without such consent, from employing any employee who (i) contacts the hiring Party directly at his or her own initiative\nwithout any direct or indirect solicitation by or encouragement from the hiring Party, (ii) responds to a mass media solicitation or\nadvertisement consistent with the hiring Party's past practices that is not directed at employees of the other Party or (iii) is identified by a\nthird party executive search firm or employment agency without any assistance from such Party.\n(b) For a period one year from the date of this Agreement, neither Party shall, without the prior written consent of the other Party or the\nother Party's board of directors, either directly or indirectly through any affiliate or Representative or otherwise: (i) acquire, offer to acquire,\nor agree to acquire, by purchase, tender offer, merger, consolidation, share exchange or otherwise, ownership or control of any voting\nsecurities, or any direct or indirect right to acquire any voting securities, of the other Party, any subsidiary thereof, or any successor\ncorporation thereto; (ii) make, or in any way participate in any "solicitation" of "proxies" (as such terms are used in the rules and regulations\nof the Securities and Exchange Commission) to vote, or seek to advise or influence any person or entity with respect to the voting of, any\nvoting securities of the other Party; (iii) seek or propose to influence or control the management or policies of the other Party; (iv) make any\npublic announcement with respect to, or submit a proposal for, or offer of any merger, acquisition or other business combination or\nextraordinary transaction involving the other Party or any of its subsidiaries or any securities or assets of the other Party or any of its\nsubsidiaries; (v) form, join or in any way participate in a "group"( as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended) in connection with any of the foregoing, or (vi) request the other Party or any of the other party's Representatives to amend or\nwaive any provision of this paragraph 5(b) in any manner which may reasonably be expected to compel or result in public disclosure;\nprovided that such limitations shall expire upon the public\nannouncement of a third party tender offer for more than fifty percent of the outstanding voting securities of the other Party or a business\ncombination between the other Party and a third party. Each Party (the "Representing Party") represents and warrants to the other Party that\nas of the date of this Agreement the Representing Party does not directly or indirectly own or possess voting or dispositive control over any\nvoting securities of the other Party.\n6. Return and Destruction of Evaluation Material. = At any time after termination of discussions by either Party with respect to the\nTransaction, upon the request of the Furnishing Party, the Receiving Party shall promptly (and in no event later than five business days after such\nrequest) (a) redeliver or cause to be redelivered to the Furnishing Party all copies of all Primary Evaluation Material in the possession or control of\nthe Receiving Party or its Representatives which is in a visual or written format and erase or destroy all copies of all such Primary Evaluation\nMaterial which is stored in electronic format, and (b) destroy or cause to be destroyed all Derivative Evaluation Material in the possession or control\nof the Receiving Party or any of its Representatives. Nothing herein shall obligate the Receiving Party to provide any Derivative Evaluation Material\nto the Furnishing Party. Notwithstanding the return, destruction or erasure of Evaluation Material hereunder, the Receiving Party and its\nRepresentatives shall continue to be bound by their confidentiality and other obligations hereunder.\n7. Remedies. Each Party agrees that money damages would not be a sufficient remedy for any breach of any provision of this Agreement by\nit or any of its Representatives, and that in addition to all other remedies which either Party may have, each Party shall be entitled to specific\nperformance and injunctive or other equitable relief as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive\nremedies for a breach of this Agreement but shall be in addition to all other remedies available at law or in equity. No failure or delay by either Party\nin exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any\nother or further exercise thereof or the exercise of any right, power or privilege hereunder. In the event that either Party should institute proceedings\nto enforce any provision of this Agreement, the prevailing Party in such proceedings shall be entitled to recover all expenses relating to the\nenforcement of this Agreement, including reasonable attorneys' fees and costs, in addition to any other remedies.\n8. Miscellaneous.\n(@) No License. Neither Party grants a license, by implication or otherwise, under any of its trade secrets or other intellectual\nproperty rights to the Receiving Party. The terms of this Agreement shall not be construed to limit either Party's right to independently\ndevelop or acquire products without use of the other Party's Evaluation Material. The Furnishing Party acknowledges that the Receiving\nParty may currently or in the future develop information internally, or receive information from other parties, that is similar to the Evaluation\nMaterial. Accordingly, nothing in this Agreement will be construed as a representation or agreement that the Receiving Party will not\ndevelop or have developed for its products, concepts, systems, or techniques that are similar to or compete with the products, concepts,\nsystems or techniques contemplated by or embodied in the Evaluation Material, provided that the Receiving Party does not violate any of its\nobligations under this Agreement in connection with such development.\n(b) Entire Agreement. This Agreement contains the sole and entire agreement between the Parties with respect to the confidentiality\nof the Evaluation Material and the confidentiality of their discussions, negotiations and investigations concerning a Transaction.\n(c) Amendment and Waiver. This Agreement may be amended, modified or waived only by a separate written instrument duly signed\nand delivered by or on behalf of both Parties.\n \n(d) Severability. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect the validity or\nenforceability of any other provision of this Agreement unless the enforcement of such provision in such circumstances would be\ninequitable.\n(e) No Obligation to Complete a Transaction. It is expressly understood that this Agreement is not intended to, and does not,\nconstitute an agreement to consummate a Transaction, to conduct or continue negotiations with respect to a Transaction, or to enter into a\ndefinitive agreement with respect to a Transaction, and neither Party shall have any rights or obligations of any kind whatsoever with respect\nto such a Transaction by virtue of this Agreement or by virtue of any other written or oral expression by the Parties' respective\nRepresentatives unless and until a definitive agreement with respect to a Transaction is executed and delivered by both Parties, other than for\nthe matters specifically agreed to herein. Both Parties further acknowledge and agree that each Party reserves the right, in its sole discretion,\nto provide or not to provide Evaluation Material to the Receiving Party under this Agreement, to reject any and all proposals made by the\nother Party or any of its Representatives with regard to a Transaction, and to terminate discussions and negotiations at any time. If either\nParty determines not to proceed with negotiations with respect to a Transaction, it will promptly inform the other Party of such\ndetermination.\n(f) Governing Law; Forum. This Agreement shall be governed by and construed in accordance with the internal laws of the State of\nGeorgia, without regard to the principles of the conflict of laws thereof. Each Party consents and submits to the exclusive jurisdiction of the\nfederal and state courts in the State of Georgia, and the city of Atlanta, for the adjudication of any action, suit, or proceeding arising out of or\notherwise relating to this Agreement.\n[Signatures on following page]\n5\nThe Parties have executed this Agreement as of the date first written above.\nEarthLink, Inc. PeoplePC, Inc.\nBy: /s/ BRINTON O.C. YOUNG By: /s/ CHARLES ORTMEYER\nName: Brinton O.C. Young Name: Charles Ortmeyer\nTitle: EVP of Strategic Planning Title: SVP and General Counsel\n6\nQuickLinks\nMUTUAL NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT	EX-99.(E)(13) 10 a2082556zex-99_e13.htm EXHIBIT 99(E)(13)\nQuickLinks Click here to rapidly navigate through this document\nExhibit (e)(13)\nMUTUAL NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT\nThis Mutual Non-Disclosure and Non-Solicitation Agreement (this "Agreement"), is made as of September 17, 2001 between EarthLink, Inc. a\nDelaware corporation ("EarthLink"), and PeoplePC, Inc., a Delaware corporation ("PeoplePC"). EarthLink and PeoplePC are sometimes referred to\nherein individually as a "Party" and collectively as the "Parties."\n1. Purpose. EarthLink and PeoplePC wish to have discussions relating to a potential transaction (the "Transaction") between EarthLink\n(and/or its subsidiaries and stockholders) and PeoplePC (and/or its subsidiaries and stockholders). In the course of such discussions, each Party\nexpects to make available to the other Party and its Representatives (as defined herein) Evaluation Material (as defined herein) concerning the\nbusinesses, financial condition, operations, assets, properties, liabilities, and prospects of such Party. As a condition to making such information\navailable, each Party is entering this Agreement and agrees that all Evaluation Material received by it or its Representatives from the other Party\nor\nany of its Representatives shall be treated in accordance with this Agreement.\n2. Certain Definitions. As used in this Agreement: (i) the term "Receiving Party" means the Party receiving Evaluation Material; (ii) the\nterm "Furnishing Party" means the Party providing Evaluation Material or causing Evaluation Material to be provided; (iii) the term\n"Representatives" means the directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, investment\nbankers,\nfinancial advisors and other consultants and advisors engaged in connection with the review and evaluation of the Transaction) of the\nspecified Party; and (iv) the term "Evaluation Material" means all proprietary and confidential information concerning the Furnishing Party or any\nof its subsidiaries or affiliates, whether in verbal, visual, written, electronic or other form, which is made available by the Furnishing Party or any\nof\nits\nRepresentatives\nto\nthe\nReceiving\nParty\nor\nany\nof\nits\nRepresentatives\n("Primary\nEvaluation\nMaterial"),\ntogether,\nin\neach\ncase,\nwith\nall\nnotes,\nmemoranda, summaries, analyses, studies, compilations and other writings relating thereto or based in whole or in part thereon prepared by the\nReceiving Party or any of its Representatives ("Derivative Evaluation Material"). Notwithstanding the foregoing, the term "Evaluation Material"\nshall not include, and the Parties' obligations herein (other than their obligations under paragraph 6 of this Agreement) shall not extend to\ninformation which (a) was rightfully in the possession of the Receiving Party prior to disclosure by the Furnishing Party; (b) was or is independently\ndeveloped by the Receiving Party without use of the Evaluation Material; (c) is now or hereafter becomes available to the public other than as a\nresult of disclosure by the Receiving Party or any of the Receiving Party's Representatives in violation of this Agreement; (d) becomes available\nto\nthe Receiving Party or any of its Representatives on a non-confidential basis from a source other than the Furnishing Party or any of its\nRepresentatives and such source is not, to the knowledge of the Receiving Party following reasonable inquiry, under any obligation to the Furnishing\nParty or any of its Representatives (whether contractual, legal or fiduciary) to keep such information confidential; or (e) is transmitted by or on\nbehalf of the Furnishing Party after receiving written notification from the Receiving Party of the termination of discussions relating to the\nTransaction or written instructions from the Receiving Party not to furnish any further Evaluation Material.\n3. Confidentiality and Use of Evaluation Material.\n(a) Confidentiality of Evaluation Material. All Evaluation Material (i) shall be used solely for the purpose of evaluating and\nconsidering the Transaction; (ii) shall be kept strictly confidential by the Receiving Party; and (iii) shall be provided by the Receiving Party\nsolely\nto\nthose\nof\nits\nRepresentatives\nto\nwhom\ndisclosure\nis\nreasonably\nrequired\nto\nfacilitate\nthe\nReceiving\nParty's\nevaluation\nor\nconsideration\nof the Transaction, it being the intention of the Parties to restrict the dissemination of Evaluation Material to as small a working group as\npracticable. The Parties agree that all Evaluation Material is and shall remain the property of the Furnishing Party. Before providing access to\nEvaluation Material to any Representative, the Receiving Party shall inform such Representative of the confidentiality of the Evaluation\nMaterial, and shall advise such\nRepresentative that, by accepting possession of or access to such information, such Representative is agreeing to be bound by this\nAgreement. Each Party shall be responsible for any breach of this Agreement by any of its Representatives.\n(b) Compulsory Disclosure of Evaluation Material. If the Receiving Party or its Representatives are requested or required in any\njudicial, arbitral or administrative proceeding or by any governmental or regulatory authority to disclose any Evaluation Material (whether by\ndeposition, interrogatory, request for documents, subpoena, civil investigative demand, or otherwise), or the Receiving Party is so requested\nor required to disclose any of the facts disclosure of which is prohibited under paragraph (3)(e) of this Agreement, the Receiving Party shall\ngive the Furnishing Party prompt notice of such request so that the Furnishing Party may seek an appropriate protective order or other\nappropriate remedy and/or waive compliance with the provisions of this Agreement, and, upon the Furnishing Party's request and at the\nFurnishing Party's expense, shall reasonably cooperate with the Furnishing Party in seeking such an order. If, in the absence of a protective\norder or other remedy or the receipt of a waiver by the Furnishing Party, the Receiving Party is nontheless, in the opinion of the Receiving\nParty's or (in the case of disclosure requested or required of a Representative, such Representative's) outside counsel or General Counsel,\nlegally compelled to disclose Evaluation Material, the Receiving Party shall disclose only that portion of the Evaluation Material which the\nReceiving Party is legally required to disclose and upon the Furnishing Party's request and at the Furnishing Party's expense, shall use all\nrequisite reasonable efforts to obtain assurances that confidential treatment will be accorded to such Evaluation Material to the extent such\nassurances are available. Subject to the foregoing conditions and limitations, the Receiving Party may disclose Evaluation Material under the\ncircumstances set forth in this paragraph (b) without liability hereunder.\n(c) Other Public Disclosure. Except (i) for such public disclosure as may be necessary, in the good faith judgment of the disclosing\nParty consistent with advice of counsel, for the disclosing Party not to be in violation of any applicable law, regulation or order, or (ii)\nwith\nthe prior written consent of the order Party, neither Part shall:\n(x) make any disclosure (and each Party shall direct its Representatives not to make any disclosure) to any person of (A) the\nfact that discussions, negotiations or investigations are taking or have taken place concerning a Transaction, (B) the existence or\ncontents of this Agreement, or the fact that either Party has requested or received Evaluation Material from the other Party, or (C) any\nof the terms, conditions or other facts with respect to any proposed Transaction, including the status of the discussions or negotiations\nrelated thereto, or\n(y) make any public statement concerning a proposed Transaction.\n(d)\nNotice If either Party proposes to make any disclosure in reliance on clause (i) above, the disclosing Party shall, to the extent\npracticable, provide the other Party with the text of the proposed disclosure as far in advance of its disclosure as is practicable and shall\nin\ngood faith consult with and consider the suggestions of the other Party concerning the nature and scope of the information it proposes\nto\ndisclose. Notwithstanding the foregoing, a Party may make such public announcement or public statement if in the opinion of such Party's\noutside counsel or General Counsel, such public announcement or public statement is necessary to avoid committing a violation of law or\nof\nany rule or regulation of any securities association, stock exchange or national securities quotation system on which such Party's securities\nare listed or trade. In such event, the disclosing Party shall use its reasonable best efforts to give advance notice to the other Party and to\nconsult with the other Party on the timing and content of any such public announcement or public statement.\n(e) Certain Securities Law Restrictions. Each Party acknowledges that the Evaluation Material may contain material nonpublic\ninformation concerning the Furnishing Party. Each Party\n2\nfurther acknowledges its awareness of the restrictions imposed by federal and state securities laws on persons in possession of material\nnonpublic\ninformation.\nNothing\nherein\nshall\nconstitute\nan\nadmission\nby\neither\nParty\nthat\nany\nEvaluation\nMaterial\nin\nfact\ncontains\nmaterial\nnonpublic information concerning the Furnishing Party.\n(f) Contact with Employees and Representatives. Neither Party shall communicate with any employee of the other Party regarding\nthe Transaction or disclose any Evaluation Material to any employee or Representative of the other Party, other than the employees and\nRepresentatives named on the working group lists provided by the Parties from time to time.\n(g) General. Notwithstanding any other provision of this Agreement, neither Party will be restricted from using the information\ncontained in the Evaluation Material that is retained in the minds of Representatives who have had access to the other Party's Evaluation\nMaterial, unless such use shall infringe on any of such Party's patent rights, trademark rights or copyright rights.\n4. Accuracy of Evaluation Material: No Representations or Warranties. Each Party acknowledges and agrees (a) that no representation\nor\nwarranty, express or implied, is made by either Party or any of its respective Representatives as to the accuracy or completeness of the Evaluation\nMaterial, and (b) that the Parties shall be entitled to rely only on those representations and warranties (if any) that may be made in a definitive\nwritten agreement for the Transaction, signed and delivered by both Parties, and then only to the extent, and subject to the limitations, provided\ntherein.\n5. No Solicitation.\n(a) For a period of one year subsequent to the termination of discussions regarding a Transaction, neither Party shall, without the prior\nwritten consent of the other Party, directly or indirectly solicit for hire any person currently employed by the other Party (or any of its\nsubsidiaries) with whom the hiring Party first has contact, or who first becomes known to the hiring Party. In the course of the Parties'\ndiscussions and due diligence with respect to the proposed Transaction; provided, however, that the foregoing provision shall not prevent\neither Party, without such consent, from employing any employee who (i) contacts the hiring Party directly at his or her own initiative\nwithout any direct or indirect solicitation by or encouragement from the hiring Party, (ii) responds to a mass media solicitation\nor\nadvertisement consistent with the hiring Party's past practices that is not directed at employees of the other Party or (iii) is identified by a\nthird party executive search firm or employment agency without any assistance from such Party.\n(b) For a period one year from the date of this Agreement, neither Party shall, without the prior written consent of the other Party or the\nother Party's board of directors, either directly or indirectly through any affiliate or Representative or otherwise: (i) acquire, offer to acquire,\nor agree to acquire, by purchase, tender offer, merger, consolidation, share exchange or otherwise, ownership or control of any voting\nsecurities, or any direct or indirect right to acquire any voting securities, of the other Party, any subsidiary thereof, or any successor\ncorporation thereto; (ii) make, or in any way participate in any "solicitation" of "proxies" (as such terms are used in the rules and regulations\nof the Securities and Exchange Commission) to vote, or seek to advise or influence any person or entity with respect to the voting of, any\nvoting securities of the other Party; (iii) seek or propose to influence or control the management or policies of the other Party; (iv) make any\npublic announcement with respect to, or submit a proposal for, or offer of any merger, acquisition or other business combination or\nextraordinary transaction involving the other Party or any of its subsidiaries or any securities or assets of the other Party or any of its\nsubsidiaries; (v) form, join or in any way participate in a "group"( as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended)\nin\nconnection\nwith\nany\nof\nthe\nforegoing,\nor\n(vi)\nrequest\nthe\nother\nParty\nor\nany\nof\nthe\nother\nparty's\nRepresentatives\nto\namend\nor\nwaive any provision of this paragraph 5(b) in any manner which may reasonably be expected to compel or result in public disclosure;\nprovided that such limitations shall expire upon the public\n3\nannouncement of a third party tender offer for more than fifty percent of the outstanding voting securities of the other Party or a business\ncombination between the other Party and a third party. Each Party (the "Representing Party") represents and warrants to the other Party that\nas of the date of this Agreement the Representing Party does not directly or indirectly own or possess voting or dispositive control over any\nvoting securities of the other Party.\n6.\nReturn and Destruction of Evaluation Material. At any time after termination of discussions by either Party with respect to the\nTransaction,\nupon\nthe\nrequest\nof\nthe\nFurnishing\nParty,\nthe\nReceiving\nParty\nshall\npromptly\n(and\nin\nno\nevent\nlater\nthan\nfive\nbusiness\ndays\nafter\nsuch\nrequest) (a) redeliver or cause to be redelivered to the Furnishing Party all copies of all Primary Evaluation Material in the possession or control of\nthe Receiving Party or its Representatives which is in a visual or written format and erase or destroy all copies of all such Primary Evaluation\nMaterial which is stored in electronic format, and (b) destroy or cause to be destroyed all Derivative Evaluation Material in the possession or control\nof the Receiving Party or any of its Representatives Nothing herein shall obligate the Receiving Party to provide any Derivative Evaluation Material\nto the Furnishing Party. Notwithstanding the return, destruction or erasure of Evaluation Material hereunder, the Receiving Party and its\nRepresentatives shall continue to be bound by their confidentiality and other obligations hereunder.\n7. Remedies. Each Party agrees that money damages would not be a sufficient remedy for any breach of any provision of this Agreement by\nit or any of its Representatives, and that in addition to all other remedies which either Party may have, each Party shall be entitled to specific\nperformance and injunctive or other equitable relief as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive\nremedies for a breach of this Agreement but shall be in addition to all other remedies available at law or in equity. No failure or delay by either Party\nin exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any\nother or further exercise thereof or the exercise of any right, power or privilege hereunder. In the event that either Party should institute proceedings\nto enforce any provision of this Agreement, the prevailing Party in such proceedings shall be entitled to recover all expenses relating to the\nenforcement of this Agreement, including reasonable attorneys' fees and costs, in addition to any other remedies.\n8. Miscellaneous.\n(a) No License. Neither Party grants a license, by implication or otherwise, under any of its trade secrets or other intellectual\nproperty rights to the Receiving Party. The terms of this Agreement shall not be construed to limit either Party's right to independently\ndevelop or acquire products without use of the other Party's Evaluation Material. The Furnishing Party acknowledges that the Receiving\nParty may currently or in the future develop information internally, or receive information from other parties, that is similar to the Evaluation\nMaterial. Accordingly, nothing in this Agreement will be construed as a representation or agreement that the Receiving Party will not\ndevelop or have developed for its products, concepts, systems, or techniques that are similar to or compete with the products, concepts,\nsystems or techniques contemplated by or embodied in the Evaluation Material, provided that the Receiving Party does not violate any of its\nobligations under this Agreement in connection with such development.\n(b) Entire Agreement. This Agreement contains the sole and entire agreement between the Parties with respect to the confidentiality\nof\nthe Evaluation Material and the confidentiality of their discussions, negotiations and investigations concerning a Transaction.\n(c) Amendment and Waiver. This Agreement may be amended, modified or waived only by a separate written instrument duly signed\nand delivered by or on behalf of both Parties.\n4\n(d)\nSeverability. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect the validity or\nenforceability of any other provision of this Agreement unless the enforcement of such provision in such circumstances would be\ninequitable.\n(e) No Obligation to Complete a Transaction. It is expressly understood that this Agreement is not intended to, and does not,\nconstitute an agreement to consummate a Transaction, to conduct or continue negotiations with respect to a Transaction, or to enter into\na\ndefinitive agreement with respect to a Transaction, and neither Party shall have any rights or obligations of any kind whatsoever with respect\nto such a Transaction by virtue of this Agreement or by virtue of any other written or oral expression by the Parties' respective\nRepresentatives unless and until a definitive agreement with respect to a Transaction is executed and delivered by both Parties, other than for\nthe matters specifically agreed to herein. Both Parties further acknowledge and agree that each Party reserves the right, in its sole discretion,\nto\nprovide\nor\nnot\nto\nprovide\nEvaluation\nMaterial\nto\nthe\nReceiving\nParty\nunder\nthis\nAgreement,\nto\nreject\nany\nand\nall\nproposals\nmade\nby\nthe\nother Party or any of its Representatives with regard to a Transaction, and to terminate discussions and negotiations at any time. If either\nParty determines not to proceed with negotiations with respect to a Transaction, it will promptly inform the other Party of such\ndetermination.\n(f) Governing Law; Forum. This Agreement shall be governed by and construed in accordance with the internal laws of the State of\nGeorgia, without regard to the principles of the conflict of laws thereof. Each Party consents and submits to the exclusive jurisdiction of the\nfederal and state courts in the State of Georgia, and the city of Atlanta, for the adjudication of any action, suit, or proceeding arising out of or\notherwise relating to this Agreement.\n[Signatures on following page]\n5\nThe Parties have executed this Agreement as of the date first written above.\nEarthLink, Inc.\nPeoplePC, Inc.\nBy:\n/s/ BRINTON O.C. YOUNG\nBy:\n/s/ CHARLES ORTMEYER\nName:\nBrinton O.C. Young\nName:\nCharles Ortmeyer\nTitle:\nEVP of Strategic Planning\nTitle:\nSVP and General Counsel\n6\nQuickLinks\nMUTUAL NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT	EX-99.(E)(13) 10 a2082556zex-99_e13.htm EXHIBIT 99(E)(13)\nQuickLinks -- Click here to rapidly navigate through this document\nExhibit (e)(13)\nMUTUAL NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT\nThis Mutual Non-Disclosure and Non-Solicitation Agreement (this "Agreement"), is made as of September 17, 2001 between EarthLink, Inc. a\nDelaware corporation ("EarthLink"), and PeoplePC, Inc., a Delaware corporation ("PeoplePC"). EarthLink and PeoplePC are sometimes referred to\nherein individually as a "Party" and collectively as the "Parties."\n1. Purpose. EarthLink and PeoplePC wish to have discussions relating to a potential transaction (the "Transaction") between EarthLink\n(and/or its subsidiaries and stockholders) and PeoplePC (and/or its subsidiaries and stockholders). In the course of such discussions, each Party\nexpects to make available to the other Party and its Representatives (as defined herein) Evaluation Material (as defined herein) concerning the\nbusinesses, financial condition, operations, assets, properties, liabilities, and prospects of such Party. As a condition to making such information\navailable, each Party is entering this Agreement and agrees that all Evaluation Material received by it or its Representatives from the other Party or\nany of its Representatives shall be treated in accordance with this Agreement.\n2. Certain Definitions. As used in this Agreement: (i) the term "Receiving Party" means the Party receiving Evaluation Material; (ii) the\nterm "Furnishing Party" means the Party providing Evaluation Material or causing Evaluation Material to be provided; (iii) the term\n"Representatives" means the directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, investment\nbankers, financial advisors and other consultants and advisors engaged in connection with the review and evaluation of the Transaction) of the\nspecified Party; and (iv) the term "Evaluation Material" means all proprietary and confidential information concerning the Furnishing Party or any\nof its subsidiaries or affiliates, whether in verbal, visual, written, electronic or other form, which is made available by the Furnishing Party or any of\nits Representatives to the Receiving Party or any of its Representatives ("Primary Evaluation Material"), together, in each case, with all notes,\nmemoranda, summaries, analyses, studies, compilations and other writings relating thereto or based in whole or in part thereon prepared by the\nReceiving Party or any of its Representatives ("Derivative Evaluation Material"). Notwithstanding the foregoing, the term "Evaluation Material"\nshall not include, and the Parties' obligations herein (other than their obligations under paragraph 6 of this Agreement) shall not extend to\ninformation which (a) was rightfully in the possession of the Receiving Party prior to disclosure by the Furnishing Party; (b) was or is independently\ndeveloped by the Receiving Party without use of the Evaluation Material; (c) is now or hereafter becomes available to the public other than as a\nresult of disclosure by the Receiving Party or any of the Receiving Party's Representatives in violation of this Agreement; (d) becomes available to\nthe Receiving Party or any of its Representatives on a non-confidential basis from a source other than the Furnishing Party or any of its\nRepresentatives and such source is not, to the knowledge of the Receiving Party following reasonable inquiry, under any obligation to the Furnishing\nParty or any of its Representatives (whether contractual, legal or fiduciary) to keep such information confidential; or (e) is transmitted by or on\nbehalf of the Furnishing Party after receiving written notification from the Receiving Party of the termination of discussions relating to the\nTransaction or written instructions from the Receiving Party not to furnish any further Evaluation Material.\n3. Confidentiality and Use of Evaluation Material.\n(a) Confidentiality of Evaluation Material. All Evaluation Material (i) shall be used solely for the purpose of evaluating and\nconsidering the Transaction; (ii) shall be kept strictly confidential by the Receiving Party; and (iii) shall be provided by the Receiving Party\nsolely to those of its Representatives to whom disclosure is reasonably required to facilitate the Receiving Party's evaluation or consideration\nof the Transaction, it being the intention of the Parties to restrict the dissemination of Evaluation Material to as small a working group as\npracticable. The Parties agree that all Evaluation Material is and shall remain the property of the Furnishing Party. Before providing access to\nEvaluation Material to any Representative, the Receiving Party shall inform such Representative of the confidentiality of the Evaluation\nMaterial, and shall advise such\nRepresentative that, by accepting possession of or access to such information, such Representative is agreeing to be bound by this\nAgreement. Each Party shall be responsible for any breach of this Agreement by any of its Representatives.\n(b) Compulsory Disclosure of Evaluation Material. If the Receiving Party or its Representatives are requested or required in any\njudicial, arbitral or administrative proceeding or by any governmental or regulatory authority to disclose any Evaluation Material (whether by\ndeposition, interrogatory, request for documents, subpoena, civil investigative demand, or otherwise), or the Receiving Party is so requested\nor required to disclose any of the facts disclosure of which is prohibited under paragraph (3)(e) of this Agreement, the Receiving Party shall\ngive the Furnishing Party prompt notice of such request so that the Furnishing Party may seek an appropriate protective order or other\nappropriate remedy and/or waive compliance with the provisions of this Agreement, and, upon the Furnishing Party's request and at the\nFurnishing Party's expense, shall reasonably cooperate with the Furnishing Party in seeking such an order. If, in the absence of a protective\norder or other remedy or the receipt of a waiver by the Furnishing Party, the Receiving Party is nontheless, in the opinion of the Receiving\nParty's or (in the case of disclosure requested or required of a Representative, such Representative's) outside counsel or General Counsel,\nlegally compelled to disclose Evaluation Material, the Receiving Party shall disclose only that portion of the Evaluation Material which the\nReceiving Party is legally required to disclose and upon the Furnishing Party's request and at the Furnishing Party's expense, shall use all\nrequisite reasonable efforts to obtain assurances that confidential treatment will be accorded to such Evaluation Material to the extent such\nassurances are available. Subject to the foregoing conditions and limitations, the Receiving Party may disclose Evaluation Material under the\ncircumstances set forth in this paragraph (b) without liability hereunder.\n(c) Other Public Disclosure. Except (i) for such public disclosure as may be necessary, in the good faith judgment of the disclosing\nParty consistent with advice of counsel, for the disclosing Party not to be in violation of any applicable law, regulation or order, or (ii) with\nthe prior written consent of the order Party, neither Part shall:\n(x) make any disclosure (and each Party shall direct its Representatives not to make any disclosure) to any person of (A) the\nfact that discussions, negotiations or investigations are taking or have taken place concerning a Transaction, (B) the existence or\ncontents of this Agreement, or the fact that either Party has requested or received Evaluation Material from the other Party, or (C) any\nof the terms, conditions or other facts with respect to any proposed Transaction, including the status of the discussions or negotiations\nrelated thereto, or\n(y) make any public statement concerning a proposed Transaction.\n(d) Notice If either Party proposes to make any disclosure in reliance on clause (i) above, the disclosing Party shall, to the extent\npracticable, provide the other Party with the text of the proposed disclosure as far in advance of its disclosure as is practicable and shall in\ngood faith consult with and consider the suggestions of the other Party concerning the nature and scope of the information it proposes to\ndisclose. Notwithstanding the foregoing, a Party may make such public announcement or public statement if in the opinion of such Party's\noutside counsel or General Counsel, such public announcement or public statement is necessary to avoid committing a violation of law or of\nany rule or regulation of any securities association, stock exchange or national securities quotation system on which such Party's securities\nare listed or trade. In such event, the disclosing Party shall use its reasonable best efforts to give advance notice to the other Party and to\nconsult with the other Party on the timing and content of any such public announcement or public statement.\n(e) Certain Securities Law Restrictions. Each Party acknowledges that the Evaluation Material may contain material nonpublic\ninformation concerning the Furnishing Party. Each Party\n2\nfurther acknowledges its awareness of the restrictions imposed by federal and state securities laws on persons in possession of material\nnonpublic information. Nothing herein shall constitute an admission by either Party that any Evaluation Material in fact contains material\nnonpublic information concerning the Furnishing Party.\n(f) Contact with Employees and Representatives. Neither Party shall communicate with any employee of the other Party regarding\nthe Transaction or disclose any Evaluation Material to any employee or Representative of the other Party, other than the employees and\nRepresentatives named on the working group lists provided by the Parties from time to time.\n(g) General. Notwithstanding any other provision of this Agreement, neither Party will be restricted from using the information\ncontained in the Evaluation Material that is retained in the minds of Representatives who have had access to the other Party's Evaluation\nMaterial, unless such use shall infringe on any of such Party's patent rights, trademark rights or copyright rights.\n4. Accuracy of Evaluation Material: No Representations or Warranties. Each Party acknowledges and agrees (a) that no representation or\nwarranty, express or implied, is made by either Party or any of its respective Representatives as to the accuracy or completeness of the Evaluation\nMaterial, and (b) that the Parties shall be entitled to rely only on those representations and warranties (if any) that may be made in a definitive\nwritten agreement for the Transaction, signed and delivered by both Parties, and then only to the extent, and subject to the limitations, provided\ntherein.\n5. No Solicitation.\n(a) For a period of one year subsequent to the termination of discussions regarding a Transaction, neither Party shall, without the prior\nwritten consent of the other Party, directly or indirectly solicit for hire any person currently employed by the other Party (or any of its\nsubsidiaries) with whom the hiring Party first has contact, or who first becomes known to the hiring Party. In the course of the Parties'\ndiscussions and due diligence with respect to the proposed Transaction; provided, however, that the foregoing provision shall not prevent\neither Party, without such consent, from employing any employee who (i) contacts the hiring Party directly at his or her own initiative\nwithout any direct or indirect solicitation by or encouragement from the hiring Party, (ii) responds to a mass media solicitation or\nadvertisement consistent with the hiring Party's past practices that is not directed at employees of the other Party or (iii) is identified by a\nthird party executive search firm or employment agency without any assistance from such Party.\n(b) For a period one year from the date of this Agreement, neither Party shall, without the prior written consent of the other Party or the\nother Party's board of directors, either directly or indirectly through any affiliate or Representative or otherwise: (i) acquire, offer to acquire,\nor agree to acquire, by purchase, tender offer, merger, consolidation, share exchange or otherwise, ownership or control of any voting\nsecurities, or any direct or indirect right to acquire any voting securities, of the other Party, any subsidiary thereof, or any successor\ncorporation thereto; (ii) make, or in any way participate in any "solicitation" of "proxies" (as such terms are used in the rules and regulations\nof the Securities and Exchange Commission) to vote, or seek to advise or influence any person or entity with respect to the voting of, any\nvoting securities of the other Party; (iii) seek or propose to influence or control the management or policies of the other Party; (iv) make any\npublic announcement with respect to, or submit a proposal for, or offer of any merger, acquisition or other business combination or\nextraordinary transaction involving the other Party or any of its subsidiaries or any securities or assets of the other Party or any of its\nsubsidiaries; (v) form, join or in any way participate in a "group"( as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended) in connection with any of the foregoing, or (vi) request the other Party or any of the other party's Representatives to amend or\nwaive any provision of this paragraph 5(b) in any manner which may reasonably be expected to compel or result in public disclosure;\nprovided that such limitations shall expire upon the public\n3\nannouncement of a third party tender offer for more than fifty percent of the outstanding voting securities of the other Party or a business\ncombination between the other Party and a third party. Each Party (the "Representing Party") represents and warrants to the other Party that\nas of the date of this Agreement the Representing Party does not directly or indirectly own or possess voting or dispositive control over any\nvoting securities of the other Party.\n6. Return and Destruction of Evaluation Material. At any time after termination of discussions by either Party with respect to the\nTransaction, upon the request of the Furnishing Party, the Receiving Party shall promptly (and in no event later than five business days after such\nrequest) (a) redeliver or cause to be redelivered to the Furnishing Party all copies of all Primary Evaluation Material in the possession or control of\nthe Receiving Party or its Representatives which is in a visual or written format and erase or destroy all copies of all such Primary Evaluation\nMaterial which is stored in electronic format, and (b) destroy or cause to be destroyed all Derivative Evaluation Material in the possession or control\nof the Receiving Party or any of its Representatives. Nothing herein shall obligate the Receiving Party to provide any Derivative Evaluation Material\nto the Furnishing Party. Notwithstanding the return, destruction or erasure of Evaluation Material hereunder, the Receiving Party and its\nRepresentatives shall continue to be bound by their confidentiality and other obligations hereunder.\n7. Remedies. Each Party agrees that money damages would not be a sufficient remedy for any breach of any provision of this Agreement by\nit or any of its Representatives, and that in addition to all other remedies which either Party may have, each Party shall be entitled to specific\nperformance and injunctive or other equitable relief as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive\nremedies for a breach of this Agreement but shall be in addition to all other remedies available at law or in equity. No failure or delay by either Party\nin exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any\nother or further exercise thereof or the exercise of any right, power or privilege hereunder. In the event that either Party should institute proceedings\nto enforce any provision of this Agreement, the prevailing Party in such proceedings shall be entitled to recover all expenses relating to the\nenforcement of this Agreement, including reasonable attorneys' fees and costs, in addition to any other remedies.\n8. Miscellaneous.\n(a) No License. Neither Party grants a license, by implication or otherwise, under any of its trade secrets or other intellectual\nproperty rights to the Receiving Party. The terms of this Agreement shall not be construed to limit either Party's right to independently\ndevelop or acquire products without use of the other Party's Evaluation Material. The Furnishing Party acknowledges that the Receiving\nParty may currently or in the future develop information internally, or receive information from other parties, that is similar to the Evaluation\nMaterial. Accordingly, nothing in this Agreement will be construed as a representation or agreement that the Receiving Party will not\ndevelop or have developed for its products, concepts, systems, or techniques that are similar to or compete with the products, concepts,\nsystems or techniques contemplated by or embodied in the Evaluation Material, provided that the Receiving Party does not violate any of its\nobligations under this Agreement in connection with such development.\n(b) Entire Agreement. This Agreement contains the sole and entire agreement between the Parties with respect to the confidentiality\nof the Evaluation Material and the confidentiality of their discussions, negotiations and investigations concerning a Transaction.\n(c) Amendment and Waiver. This Agreement may be amended, modified or waived only by a separate written instrument duly signed\nand delivered by or on behalf of both Parties.\n4\n(d) Severability. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect the validity or\nenforceability of any other provision of this Agreement unless the enforcement of such provision in such circumstances would be\ninequitable.\n(e) No Obligation to Complete a Transaction. It is expressly understood that this Agreement is not intended to, and does not,\nconstitute an agreement to consummate a Transaction, to conduct or continue negotiations with respect to a Transaction, or to enter into a\ndefinitive agreement with respect to a Transaction, and neither Party shall have any rights or obligations of any kind whatsoever with respect\nto such a Transaction by virtue of this Agreement or by virtue of any other written or oral expression by the Parties' respective\nRepresentatives unless and until a definitive agreement with respect to a Transaction is executed and delivered by both Parties, other than for\nthe matters specifically agreed to herein. Both Parties further acknowledge and agree that each Party reserves the right, in its sole discretion,\nto provide or not to provide Evaluation Material to the Receiving Party under this Agreement, to reject any and all proposals made by the\nother Party or any of its Representatives with regard to a Transaction, and to terminate discussions and negotiations at any time. If either\nParty determines not to proceed with negotiations with respect to a Transaction, it will promptly inform the other Party of such\ndetermination.\n(f) Governing Law; Forum. This Agreement shall be governed by and construed in accordance with the internal laws of the State of\nGeorgia, without regard to the principles of the conflict of laws thereof. Each Party consents and submits to the exclusive jurisdiction of the\nfederal and state courts in the State of Georgia, and the city of Atlanta, for the adjudication of any action, suit, or proceeding arising out of or\notherwise relating to this Agreement.\n[Signatures on following page]\n5\nThe Parties have executed this Agreement as of the date first written above.\nEarthLink, Inc.\nPeoplePC, Inc.\nBy:\n/s/ BRINTON O.C. YOUNG\nBy:\n/s/ CHARLES ORTMEYER\nName:\nBrinton O.C. Young\nName:\nCharles Ortmeyer\nTitle:\nEVP of Strategic Planning\nTitle:\nSVP and General Counsel\n6\nQuickLinks\nMUTUAL NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT
5f3d048c41eb52fa17ad94786ccdd6c8.pdf	effective_date jurisdiction party term	EX-99.(E)(2) 2 dex99e2.htm NON-DISCLOSURE AGREEMENT, DATED AS OF FEBRUARY 25, 2011\nExhibit (e)(2)\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (the “ Agreement”), dated as of this 25 day of February, 2011, is by and between Arch Coal, Inc., a Delaware\ncorporation (“Arch”), and International Coal Group, Inc., a Delaware corporation (“ICG”).\nRecitals\nA. The parties desire to enter into discussions concerning a potential negotiated transaction (a “Transaction”), which discussions may involve\nthe disclosure by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) of certain confidential or proprietary information\nrelating .to the Disclosing Party or the Transaction.\nB. The parties desire to set forth their respective rights and obligations with respect to the use, dissemination and protection of such\nconfidential or proprietary information.\nAgreements\nNOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements set forth herein and for other good\nand valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:\n1. Confidential Information.\na. All information, including without limitation all oral, written and electronic information, whether obtained prior to or subsequent to\nthe date of this Agreement, concerning the Disclosing Party or its affiliates that has been or may be furnished to the Receiving Party by or on behalf\nof the Disclosing Party or any of its Representatives (as defined below), and all analysis, compilations, forecasts, studies, notes, other materials and\nportions thereof prepared by the Receiving Party or any of its Representatives, or otherwise on its behalf, that contain, reflect or are based, in whole\nor in part, on such information shall be deemed “Confidential Information.”\nb. “Confidential Information” shall not include information that:\ni. is already known to the Receiving Party at the time of disclosure, but only to the extent that, to the knowledge of Receiving Party,\nsuch information is not subject to a duty of confidentiality to the Disclosing Party or any other person;\nii. was in the public domain at the time of disclosure or thereafter enters into the public domain through no breach of this\nAgreement by the Receiving Party or any of its Representatives;\niii. becomes known to the Receiving Party from a source other than the Disclosing Party or Disclosing Party’s Representatives,\nwhich source, to the knowledge of Receiving Party, has no duty of confidentiality to Disclosing Party or any other person with respect to the\ninformation; or\niv. is independently developed by the Receiving Party without reference to, reliance on or access to any of the Disclosing Party’s\nConfidential Information.\nth\nc. As used herein, “Representatives” shall mean, as to any person, such person’s affiliates and its and their respective directors, officers,\nemployees, agents, and advisors (including, without limitation, financial and legal advisors, consultants and accountants).\n2. Use, Dissemination and Protection of Confidential Information.\na. In consideration of the disclosure of Confidential Information hereunder, each party shall keep in confidence the other party’s\nConfidential Information for a period of two years from the date of this Agreement. In furtherance of the foregoing, each party shall use the\nConfidential Information only for the purposes of assessing, negotiating and documenting Transaction and not for any other purpose. The Receiving\nParty shall exercise the same degree of care with respect to the Disclosing Party’s Confidential Information as the Receiving Party normally takes to\nsafeguard and preserve its own proprietary information, provided that in no event shall the degree of care be less than a reasonable degree of care.\nUpon discovery of any prohibited use or disclosure by either the Receiving Party, any of its Representatives or otherwise, the Receiving Party shall\nimmediately notify the Disclosing Party in writing and shall make its best efforts to prevent any further prohibited use or disclosure; however, such\nremedial action shall in no manner relieve Receiving Party’s obligations or liabilities for breach hereunder.\nb. Neither party may disclose the other party’s Confidential Information to any third party without the Disclosing Party’s prior written\nconsent, provided, that each party may disclose Confidential Information to its Representatives who need to know such Confidential Information for\nthe purpose of evaluating a Transaction on the Receiving Party’s behalf if prior to providing such Representatives with such Confidential\nInformation the Receiving Party advises the Representatives of the confidential nature of the information so provided and of the terms of this\nAgreement, and such Representatives agree to maintain such Confidential Information in accordance with the terms of this Agreement and to\notherwise observe the terms and conditions of this Agreement. The Receiving Party acknowledges that it will be responsible for any breach of this\nAgreement by its Representatives.\nc. In furtherance of this Agreement, without the prior written consent of the other party and except as otherwise provided herein, neither\nparty nor any of its Representatives may disclose to any person (i) that Confidential Information has been requested by or furnished or made\navailable to the Receiving Party or its Representatives, (ii) the fact that this Agreement exists, (iii) that either Arch or ICG is considering a\nTransaction, (iv) that investigations, discussions or negotiations are taking place concerning a Transaction or (v) any of the terms, conditions or other\nfacts or information with respect to a Transaction or any other potential transaction involving Arch and ICG, including without limitation, the status\nor termination of this Agreement or any opinion or view with respect to the other party or the Confidential Information.\nd. In the event that either party determines not to proceed with a Transaction or at any time upon demand by the Disclosing Party, an\nauthorized officer of the Receiving Party shall promptly, at the election of the Receiving Party, either return to the Disclosing Party or destroy,\nincluding without limitation permanently deleting such Confidential Information from all computer records, all Confidential Information in the\nReceiving Party’s possession or the possession of its Representatives which relates to the Transaction or such other business objective and shall\ncertify to the Disclosing Party as to such return or destruction. Notwithstanding the foregoing, (a) the Receiving Party shall be entitled to retain any\ncopies, extracts or other reproductions of the Confidential Information, in whole or in part, (i) to the extent necessary in order to comply with\napplicable legal and regulatory recordkeeping requirements or (ii) Confidential Information contained in materials submitted to the Receiving Party’s\nBoard of Directors in accordance with the customary recordkeeping policies of the Receiving Party, and (b) the Receiving Party’s legal, accounting\nand tax Representatives may retain documents or records that contain or refer to Confidential Information for the sole purpose of, and only to the\nextent required for,\n2\ncompliance with any relevant professional standards, codes or insurance policies applicable to the particular Representative. Notwithstanding the\nreturn or destruction of Confidential Information, the Receiving Party will continue to be bound by the non-disclosure obligations contained in this\nAgreement.\n3. Disclosures Required by Law. In the event that the Receiving Party or any of its Representatives are required by applicable law, regulation\nor legal or judicial process, including without limitation by deposition, interrogatory, request for documents, subpoena, civil investigative demand or\nsimilar process, to disclose any Confidential Information, the Receiving Party will provide the Disclosing Party with prompt written notice of such\nrequirement in order to enable the Disclosing Party to seek an appropriate protective order or other remedy, and the Receiving Party will consult and\ncooperate with the Disclosing Party to the extent permitted by law with respect to taking steps to resist or narrow the scope of such requirement or\nlegal process. If a protective order or other remedy is not obtained, the terms of this letter agreement are not waived by the Disclosing Party and\ndisclosure of Confidential Information is legally required, the Receiving Party or such of its Representatives will (a) disclose such information only\nto the extent required in the opinion of the Receiving Party’s counsel and (b) give notice to the Disclosing Party of the information to be disclosed as\nfar in advance as is practicable. In any such event, the Receiving Party and its Representatives will use reasonable efforts to ensure that all\nConfidential Information that is so disclosed will be accorded confidential treatment.\n4. Material. Non-Public Information. The Receiving Party acknowledges that in its and its Representatives’ examination of the Confidential\nInformation the Receiving Party and its Representatives will have access to material, non-public information, and that the Receiving Party is aware,\nand will advise its Representatives who are informed as to the matters that are the subject of this Agreement, that state and federal laws, including\nwithout limitation United States securities laws, impose restrictions on the dissemination of such information and trading in securities when in\npossession of such information.\n5. Disclaimer. SUBJECT TO THE LAST SENTENCE OF THIS SECTION 5, THE PARTIES HEREBY DISCLAIM ALL WARRANTIES,\nWHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY AND ALL OF ITS CONFIDENTIAL INFORMATION, AND EACH PARTY\nAGREES THAT NEITHER THE DISCLOSING PARTY NOR ITS REPRESENTATIVES OR ANY OTHER PERSON MAKES ANY\nREPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE ACCURACY OR COMPLETENESS OF THE\nCONFIDENTIAL INFORMATION, INCLUDING, WITHOUT LIMITATION, ANY FORECASTS, PROJECTIONS OR OTHER FORWARD-\nLOOKING INFORMATION INCLUDED THEREIN, AND THAT NEITHER THE DISCLOSING PARTY NOR ITS REPRESENTATIVES OR\nANY OTHER PERSON SHALL ASSUME ANY RESPONSIBILITY OR HAVE ANY LIABILITY TO THE RECEIVING PARTY OR ANY OF\nITS REPRESENTATIVES RESULTING FROM THE SELECTION OR USE OF THE CONFIDENTIAL INFORMATION BY THE RECEIVING\nPARTY OR ITS REPRESENTATIVES. THE RECEIVING PARTY ACKNOWLEDGES THAT IT IS NOT ENTITLED TO RELY ON THE\nACCURACY OR COMPLETENESS OF ANY CONFIDENTIAL INFORMATION AND THAT ONLY SUCH EXPRESS REPRESENTATIONS\nAND WARRANTIES REGARDING CONFIDENTIAL INFORMATION AS MAY BE MADE TO THE RECEIVING PARTY IN A DEFINITIVE\nWRITTEN AGREEMENT RELATING TO A TRANSACTION, IF ANY, SHALL HAVE ANY LEGAL EFFECT, SUBJECT TO THE TERMS\nAND CONDITIONS OF SUCH AGREEMENT. NOTWITHSTANDING THE FOREGOING, THE DISCLOSING PARTY HEREBY\nREPRESENTS AND WARRANTS THAT IT HAS THE AUTHORITY TO DISCLOSE THE CONFIDENTIAL INFORMATION.\n6. Term. This Agreement shall commence as of the date hereof and shall remain in effect for two years. Any obligations imposed on the parties\nby this Agreement that should by their terms survive the termination of this Agreement shall so survive.\n3\n7. Miscellaneous.\na. Each party acknowledges and agrees that no contract or agreement providing for a Transaction shall be deemed to exist, directly or\nindirectly, between the parties and their respective affiliates unless and until a definitive written agreement with respect to a Transaction has been\nexecuted and delivered by Arch and ICG. Each party also agrees that unless and until a definitive written agreement with respect to a Transaction has\nbeen executed and delivered by Arch and ICG, neither party, nor any affiliate thereof, will be under any legal obligation of any kind whatsoever with\nrespect to such a Transaction by virtue of this Agreement, except for the matters specifically provided herein, or otherwise or by virtue of any written\nor oral expression with respect to such a Transaction by either party’s Representatives. Nothing contained in this Agreement nor the furnishing of\nany Confidential Information hereunder shall be construed as granting or conferring any rights by license or otherwise in any intellectual property.\nEach patty further acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals made with\nrespect to a Transaction, to terminate discussions and negotiations at any time, and to conduct any process for a Transaction as it shall, in its sole\ndiscretion, determine, including, without limitation, negotiating with any other interested party and entering into a definitive agreement without prior\nnotice to the other party or any other person.\nb. The Receiving Party shall not, nor shall it permit or assist any of its Representatives to, alter or remove any confidentiality label,\nproprietary label, patent marking, copyright notice or other legend placed on Confidential Information, and shall maintain and place any such notices\nor legends on applicable Confidential Information or copies thereof as directed by the Disclosing Party. The rights and obligations set forth in this\nAgreement shall take precedence over any inconsistent specific legend contained on, or any statements made in connection with the disclosure of,\nany Confidential Information.\nc. The parties acknowledge that, due to the unique nature of the Confidential Information, the Disclosing Party’s remedies at law arc\ninadequate and that the Disclosing Party will suffer irreparable harm in the event of breach or threatened breach of any provision of this Agreement.\nAccordingly, in such event, the Disclosing Party shall be entitled to seek injunctive relief without a requirement to post bond, as well as any and all\nother applicable remedies at law or in equity. The party that has breached or threatened to breach this Agreement will not raise the defense of an\nadequate remedy at law.\nd. This Agreement may be amended and any of its terms and conditions may be waived only by a written agreement signed by both\nparties. No provisions regarding the obligations of the parties with respect to Confidential Information set forth in any subsequent or\ncontemporaneous agreement between the parties will take precedence over this Agreement unless (i) such provisions are specific to a particular\nbusiness objective or other arrangement between the parties and (ii) either (A) such provisions are more stringent than those contained herein or\n(B) the subsequent agreement specifically refers to this Agreement and waives or amends the applicable provisions hereof.\ne. The failure of either party at any time or times to require performance of any provision of this Agreement shall in no manner affect its\nrights at a later time to enforce the same. No waiver by either party of any condition or term shall be deemed to be a continuing waiver of such\ncondition or term or any other condition or term.\nf. This Agreement shall be binding upon and inure to the benefit of the heirs, successors and permitted assigns of the parties. Neither this\nAgreement nor the obligations of either party hereunder shall be assignable or transferable by such party without the prior written consent of the\nother\n4\nparty. Any attempted assignment of this Agreement without such consent shall be null and void and shall have no effect.\ng. If any provision of this Agreement shall, for any reason, be adjudged by any court of competent jurisdiction to be invalid or\nunenforceable, such judgment shall not affect, impair or invalidate the remainder of this Agreement but shall be confined in its operation to the\nprovision of this Agreement directly involved in the controversy in which such judgment shall have been rendered.\nh. Any notice required to be given hereunder shall be in writing, sent to the corporate headquarters of the parties and made to the\nattention of the persons executing this Agreement. Such notice shall be deemed duly delivered on the date of hand-delivery or one day after deposit\nwith an overnight courier with tracking capabilities, or five days after deposit in first class U.S . mail, postage prepaid, return receipt requested.\ni. This Agreement shall be governed by and construed in accordance with the law of the State of Delaware, without regard to its conflicts\nof law principles.\nj. No press release, advertisement, marketing materials or other releases for public consumption concerning or otherwise referring to the\nterms, conditions or existence of this Agreement shall be published by either party. Neither party shall promote or otherwise disclose the existence of\nthe relationship between the parties evidenced by this Agreement or any other agreement between the parties for purposes of soliciting or procuring\nsales, clients, investors, financing or other business engagements.\nk. All contacts or inquiries by Arch to ICG, including requests or scheduling of site visits and due diligence visits, shall be made through\nBen Hatfield, CEO of ICG, or Roger Nicholson, General Counsel of ICG, or those individuals expressly designated by either in writing.\nI. This Agreement constitutes the entire and exclusive agreement between the parties with respect to the subject matter hereof. All prior\nagreements, understandings and proposals, oral or written, between the parties with respect to the subject matter hereof are superseded by this\nAgreement.\nm. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which, when\ntaken together, shall constitute one and the same instrument. Electronic transmissions of executed copies of this Agreement shall be as effective as\nthe delivery of originally executed copies of this Agreement.\n[The remainder of this page has been left blank intentionally.]\n5\nIN WITNESS WHEREOF, this Non-Disclosure Agreement has been executed by the undersigned as of the day and year first above written.\nArch Coal, Inc.\nBy: /s/ Robert G. Jones\nName: Robert G. Jones\nTitle: Senior Vice President — Law, General\nCounsel & Secretary\nInternational Coal Group, Inc.\nBy: /s/ Roger L. Nicholson\nName: Roger L. Nicholson\nTitle: Senior Vice President, Secretary and General\nCounsel\n6	EX-99.(E)(2) 2 dex99e2.htm NON-DISCLOSURE AGREEMENT, DATED AS OF FEBRUARY 25, 2011\nExhibit ()(2)\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (the “ Agreement”), dated as of this 25 day of February, 2011, is by and between Arch Coal, Inc., a Delaware\ncorporation (“Arch”), and International Coal Group, Inc., a Delaware corporation (“ICG”).\nRecitals\nA. The parties desire to enter into discussions concerning a potential negotiated transaction (a “Transaction”), which discussions may involve\nthe disclosure by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) of certain confidential or proprietary information\nrelating .to the Disclosing Party or the Transaction.\nB. The parties desire to set forth their respective rights and obligations with respect to the use, dissemination and protection of such\nconfidential or proprietary information.\nAgreements\nNOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements set forth herein and for other good\nand valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:\n1. Confidential Information.\na. All information, including without limitation all oral, written and electronic information, whether obtained prior to or subsequent to\nthe date of this Agreement, concerning the Disclosing Party or its affiliates that has been or may be furnished to the Receiving Party by or on behalf\nof the Disclosing Party or any of its Representatives (as defined below), and all analysis, compilations, forecasts, studies, notes, other materials and\nportions thereof prepared by the Receiving Party or any of its Representatives, or otherwise on its behalf, that contain, reflect or are based, in whole\nor in part, on such information shall be deemed “Confidential Information.”\nb. “Confidential Information” shall not include information that:\ni. is already known to the Receiving Party at the time of disclosure, but only to the extent that, to the knowledge of Receiving Party,\nsuch information is not subject to a duty of confidentiality to the Disclosing Party or any other person;\nii. was in the public domain at the time of disclosure or thereafter enters into the public domain through no breach of this\nAgreement by the Receiving Party or any of its Representatives;\niii. becomes known to the Receiving Party from a source other than the Disclosing Party or Disclosing Party’s Representatives,\nwhich source, to the knowledge of Receiving Party, has no duty of confidentiality to Disclosing Party or any other person with respect to the\ninformation; or\niv. is independently developed by the Receiving Party without reference to, reliance on or access to any of the Disclosing Party’s\nConfidential Information.\nc. As used herein, “Representatives” shall mean, as to any person, such person’s affiliates and its and their respective directors, officers,\nemployees, agents, and advisors (including, without limitation, financial and legal advisors, consultants and accountants).\n2. Use, Dissemination and Protection of Confidential Information.\na. In consideration of the disclosure of Confidential Information hereunder, each party shall keep in confidence the other party’s\nConfidential Information for a period of two years from the date of this Agreement. In furtherance of the foregoing, each party shall use the\nConfidential Information only for the purposes of assessing, negotiating and documenting Transaction and not for any other purpose. The Receiving\nParty shall exercise the same degree of care with respect to the Disclosing Party’s Confidential Information as the Receiving Party normally takes to\nsafeguard and preserve its own proprietary information, provided that in no event shall the degree of care be less than a reasonable degree of care.\nUpon discovery of any prohibited use or disclosure by either the Receiving Party, any of its Representatives or otherwise, the Receiving Party shall\nimmediately notify the Disclosing Party in writing and shall make its best efforts to prevent any further prohibited use or disclosure; however, such\nremedial action shall in no manner relieve Receiving Party’s obligations or liabilities for breach hereunder.\nb. Neither party may disclose the other party’s Confidential Information to any third party without the Disclosing Party’s prior written\nconsent, provided, that each party may disclose Confidential Information to its Representatives who need to know such Confidential Information for\nthe purpose of evaluating a Transaction on the Receiving Party’s behalf if prior to providing such Representatives with such Confidential\nInformation the Receiving Party advises the Representatives of the confidential nature of the information so provided and of the terms of this\nAgreement, and such Representatives agree to maintain such Confidential Information in accordance with the terms of this Agreement and to\notherwise observe the terms and conditions of this Agreement. The Receiving Party acknowledges that it will be responsible for any breach of this\nAgreement by its Representatives.\nc. In furtherance of this Agreement, without the prior written consent of the other party and except as otherwise provided herein, neither\nparty nor any of its Representatives may disclose to any person (i) that Confidential Information has been requested by or furnished or made\navailable to the Receiving Party or its Representatives, (ii) the fact that this Agreement exists, (iii) that either Arch or ICG is considering a\nTransaction, (iv) that investigations, discussions or negotiations are taking place concerning a Transaction or (v) any of the terms, conditions or other\nfacts or information with respect to a Transaction or any other potential transaction involving Arch and ICG, including without limitation, the status\nor termination of this Agreement or any opinion or view with respect to the other party or the Confidential Information.\nd. In the event that either party determines not to proceed with a Transaction or at any time upon demand by the Disclosing Party, an\nauthorized officer of the Receiving Party shall promptly, at the election of the Receiving Party, either return to the Disclosing Party or destroy,\nincluding without limitation permanently deleting such Confidential Information from all computer records, all Confidential Information in the\nReceiving Party’s possession or the possession of its Representatives which relates to the Transaction or such other business objective and shall\ncertify to the Disclosing Party as to such return or destruction. Notwithstanding the foregoing, (a) the Receiving Party shall be entitled to retain any\ncopies, extracts or other reproductions of the Confidential Information, in whole or in part, (i) to the extent necessary in order to comply with\napplicable legal and regulatory recordkeeping requirements or (ii) Confidential Information contained in materials submitted to the Receiving Party’s\nBoard of Directors in accordance with the customary recordkeeping policies of the Receiving Party, and (b) the Receiving Party’s legal, accounting\nand tax Representatives may retain documents or records that contain or refer to Confidential Information for the sole purpose of, and only to the\nextent required for,\ncompliance with any relevant professional standards, codes or insurance policies applicable to the particular Representative. Notwithstanding the\nreturn or destruction of Confidential Information, the Receiving Party will continue to be bound by the non-disclosure obligations contained in this\nAgreement.\n3. Disclosures Required by Law. In the event that the Receiving Party or any of its Representatives are required by applicable law, regulation\nor legal or judicial process, including without limitation by deposition, interrogatory, request for documents, subpoena, civil investigative demand or\nsimilar process, to disclose any Confidential Information, the Receiving Party will provide the Disclosing Party with prompt written notice of such\nrequirement in order to enable the Disclosing Party to seek an appropriate protective order or other remedy, and the Receiving Party will consult and\ncooperate with the Disclosing Party to the extent permitted by law with respect to taking steps to resist or narrow the scope of such requirement or\nlegal process. If a protective order or other remedy is not obtained, the terms of this letter agreement are not waived by the Disclosing Party and\ndisclosure of Confidential Information is legally required, the Receiving Party or such of its Representatives will (a) disclose such information only\nto the extent required in the opinion of the Receiving Party’s counsel and (b) give notice to the Disclosing Party of the information to be disclosed as\nfar in advance as is practicable. In any such event, the Receiving Party and its Representatives will use reasonable efforts to ensure that all\nConfidential Information that is so disclosed will be accorded confidential treatment.\n4. Material. Non-Public Information. The Receiving Party acknowledges that in its and its Representatives’ examination of the Confidential\nInformation the Receiving Party and its Representatives will have access to material, non-public information, and that the Receiving Party is aware,\nand will advise its Representatives who are informed as to the matters that are the subject of this Agreement, that state and federal laws, including\nwithout limitation United States securities laws, impose restrictions on the dissemination of such information and trading in securities when in\npossession of such information.\n5. Disclaimer. SUBJECT TO THE LAST SENTENCE OF THIS SECTION 5, THE PARTIES HEREBY DISCLAIM ALL WARRANTIES,\nWHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY AND ALL OF ITS CONFIDENTIAL INFORMATION, AND EACH PARTY\nAGREES THAT NEITHER THE DISCLOSING PARTY NOR ITS REPRESENTATIVES OR ANY OTHER PERSON MAKES ANY\nREPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE ACCURACY OR COMPLETENESS OF THE\nCONFIDENTIAL INFORMATION, INCLUDING, WITHOUT LIMITATION, ANY FORECASTS, PROJECTIONS OR OTHER FORWARD-\nLOOKING INFORMATION INCLUDED THEREIN, AND THAT NEITHER THE DISCLOSING PARTY NOR ITS REPRESENTATIVES OR\nANY OTHER PERSON SHALL ASSUME ANY RESPONSIBILITY OR HAVE ANY LIABILITY TO THE RECEIVING PARTY OR ANY OF\nITS REPRESENTATIVES RESULTING FROM THE SELECTION OR USE OF THE CONFIDENTIAL INFORMATION BY THE RECEIVING\nPARTY OR ITS REPRESENTATIVES. THE RECEIVING PARTY ACKNOWLEDGES THAT IT IS NOT ENTITLED TO RELY ON THE\nACCURACY OR COMPLETENESS OF ANY CONFIDENTIAL INFORMATION AND THAT ONLY SUCH EXPRESS REPRESENTATIONS\nAND WARRANTIES REGARDING CONFIDENTIAL INFORMATION AS MAY BE MADE TO THE RECEIVING PARTY IN A DEFINITIVE\nWRITTEN AGREEMENT RELATING TO A TRANSACTION, IF ANY, SHALL HAVE ANY LEGAL EFFECT, SUBJECT TO THE TERMS\nAND CONDITIONS OF SUCH AGREEMENT. NOTWITHSTANDING THE FOREGOING, THE DISCLOSING PARTY HEREBY\nREPRESENTS AND WARRANTS THAT IT HAS THE AUTHORITY TO DISCLOSE THE CONFIDENTIAL INFORMATION.\n6. Term. This Agreement shall commence as of the date hereof and shall remain in effect for two years. Any obligations imposed on the parties\nby this Agreement that should by their terms survive the termination of this Agreement shall so survive.\n3\n7. Miscellaneous.\na. Each party acknowledges and agrees that no contract or agreement providing for a Transaction shall be deemed to exist, directly or\nindirectly, between the parties and their respective affiliates unless and until a definitive written agreement with respect to a Transaction has been\nexecuted and delivered by Arch and ICG. Each party also agrees that unless and until a definitive written agreement with respect to a Transaction has\nbeen executed and delivered by Arch and ICG, neither party, nor any affiliate thereof, will be under any legal obligation of any kind whatsoever with\nrespect to such a Transaction by virtue of this Agreement, except for the matters specifically provided herein, or otherwise or by virtue of any written\nor oral expression with respect to such a Transaction by either party’s Representatives. Nothing contained in this Agreement nor the furnishing of\nany Confidential Information hereunder shall be construed as granting or conferring any rights by license or otherwise in any intellectual property.\nEach patty further acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals made with\nrespect to a Transaction, to terminate discussions and negotiations at any time, and to conduct any process for a Transaction as it shall, in its sole\ndiscretion, determine, including, without limitation, negotiating with any other interested party and entering into a definitive agreement without prior\nnotice to the other party or any other person.\nb. The Receiving Party shall not, nor shall it permit or assist any of its Representatives to, alter or remove any confidentiality label,\nproprietary label, patent marking, copyright notice or other legend placed on Confidential Information, and shall maintain and place any such notices\nor legends on applicable Confidential Information or copies thereof as directed by the Disclosing Party. The rights and obligations set forth in this\nAgreement shall take precedence over any inconsistent specific legend contained on, or any statements made in connection with the disclosure of,\nany Confidential Information.\nc. The parties acknowledge that, due to the unique nature of the Confidential Information, the Disclosing Party’s remedies at law arc\ninadequate and that the Disclosing Party will suffer irreparable harm in the event of breach or threatened breach of any provision of this Agreement.\nAccordingly, in such event, the Disclosing Party shall be entitled to seek injunctive relief without a requirement to post bond, as well as any and all\nother applicable remedies at law or in equity. The party that has breached or threatened to breach this Agreement will not raise the defense of an\nadequate remedy at law.\nd. This Agreement may be amended and any of its terms and conditions may be waived only by a written agreement signed by both\nparties. No provisions regarding the obligations of the parties with respect to Confidential Information set forth in any subsequent or\ncontemporaneous agreement between the parties will take precedence over this Agreement unless (i) such provisions are specific to a particular\nbusiness objective or other arrangement between the parties and (ii) either (A) such provisions are more stringent than those contained herein or\n(B) the subsequent agreement specifically refers to this Agreement and waives or amends the applicable provisions hereof.\ne. The failure of either party at any time or times to require performance of any provision of this Agreement shall in no manner affect its\nrights at a later time to enforce the same. No waiver by either party of any condition or term shall be deemed to be a continuing waiver of such\ncondition or term or any other condition or term.\nf. This Agreement shall be binding upon and inure to the benefit of the heirs, successors and permitted assigns of the parties. Neither this\nAgreement nor the obligations of either party hereunder shall be assignable or transferable by such party without the prior written consent of the\nother\nparty. Any attempted assignment of this Agreement without such consent shall be null and void and shall have no effect.\ng. If any provision of this Agreement shall, for any reason, be adjudged by any court of competent jurisdiction to be invalid or\nunenforceable, such judgment shall not affect, impair or invalidate the remainder of this Agreement but shall be confined in its operation to the\nprovision of this Agreement directly involved in the controversy in which such judgment shall have been rendered.\nh. Any notice required to be given hereunder shall be in writing, sent to the corporate headquarters of the parties and made to the\nattention of the persons executing this Agreement. Such notice shall be deemed duly delivered on the date of hand-delivery or one day after deposit\nwith an overnight courier with tracking capabilities, or five days after deposit in first class U.S. mail, postage prepaid, return receipt requested.\ni. This Agreement shall be governed by and construed in accordance with the law of the State of Delaware, without regard to its conflicts\nof law principles.\nj- No press release, advertisement, marketing materials or other releases for public consumption concerning or otherwise referring to the\nterms, conditions or existence of this Agreement shall be published by either party. Neither party shall promote or otherwise disclose the existence of\nthe relationship between the parties evidenced by this Agreement or any other agreement between the parties for purposes of soliciting or procuring\nsales, clients, investors, financing or other business engagements.\nk. All contacts or inquiries by Arch to ICG, including requests or scheduling of site visits and due diligence visits, shall be made through\nBen Hatfield, CEO of ICG, or Roger Nicholson, General Counsel of ICG, or those individuals expressly designated by either in writing.\nI. This Agreement constitutes the entire and exclusive agreement between the parties with respect to the subject matter hereof. All prior\nagreements, understandings and proposals, oral or written, between the parties with respect to the subject matter hereof are superseded by this\nAgreement.\nm. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which, when\ntaken together, shall constitute one and the same instrument. Electronic transmissions of executed copies of this Agreement shall be as effective as\nthe delivery of originally executed copies of this Agreement.\n[The remainder of this page has been left blank intentionally.]\n5\nIN WITNESS WHEREOF, this Non-Disclosure Agreement has been executed by the undersigned as of the day and year first above written.\nArch Coal, Inc.\nBy: /s/ Robert G. Jones\nName: Robert G. Jones\nTitle:  Senior Vice President — Law, General\nCounsel & Secretary\nInternational Coal Group, Inc.\nBy: /s/ Roger L. Nicholson\nName: Roger L. Nicholson\nTitle:  Senior Vice President, Secretary and General\nCounsel	EX-99.(E)(2) 2 dex99e2.htm NON-DISCLOSURE AGREEMENT, DATED AS OF FEBRUARY 25, 2011\nExhibit (e)(2)\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (the "Agreement"), dated as of this 25th day of February, 2011, is by and between Arch Coal, Inc., a Delaware\ncorporation ("Arch"), and International Coal Group, Inc., a Delaware corporation ("ICG").\nRecitals\nA. The parties desire to enter into discussions concerning a potential negotiated transaction (a "Transaction"), which discussions may involve\nthe disclosure by one party (the "DisclosingP Party.") to the other party (the "ReceivingF Party.") of certain confidential or proprietary information\nrelating .to the Disclosing Party or the Transaction.\nB. The parties desire to set forth their respective rights and obligations with respect to the use, dissemination and protection of such\nconfidential or proprietary information.\nAgreements\nNOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements set forth herein and for other good\nand valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:\n1. Confidential Information.\na. All information, including without limitation all oral, written and electronic information, whether obtained prior to or subsequent to\nthe date of this Agreement, concerning the Disclosing Party or its affiliates that has been or may be furnished to the Receiving Party by or on behalf\nof the Disclosing Party or any of its Representatives (as defined below), and all analysis, compilations, forecasts, studies, notes, other materials and\nportions thereof prepared by the Receiving Party or any of its Representatives, or otherwise on its behalf, that contain, reflect or are based, in whole\nor in part, on such information shall be deemed "Confidential Information."\nb. "Confidential Information" shall not include information that:\ni. is already known to the Receiving Party at the time of disclosure, but only to the extent that, to the knowledge of Receiving Party,\nsuch information is not subject to a duty of confidentiality to the Disclosing Party or any other person;\nii. was in the public domain at the time of disclosure or thereafter enters into the public domain through no breach of this\nAgreement by the Receiving Party or any of its Representatives;\niii. becomes known to the Receiving Party from a source other than the Disclosing Party or Disclosing Party's Representatives,\nwhich source, to the knowledge of Receiving Party, has no duty of confidentiality to Disclosing Party or any other person with respect to the\ninformation; or\niv. is independently developed by the Receiving Party without reference to, reliance on or access to any of the Disclosing Party's\nConfidential Information.\nC. As used herein, "Representatives" shall mean, as to any person, such person's affiliates and its and their respective directors, officers,\nemployees, agents, and advisors (including, without limitation, financial and legal advisors, consultants and accountants).\n2. Use, Dissemination and Protection of Confidential Information.\na. In consideration of the disclosure of Confidential Information hereunder, each party shall keep in confidence the other party's\nConfidential Information for a period of two years from the date of this Agreement. In furtherance of the foregoing, each party shall use the\nConfidential Information only for the purposes of assessing, negotiating and documenting Transaction and not for any other purpose. The Receiving\nParty shall exercise the same degree of care with respect to the Disclosing Party's Confidential Information as the Receiving Party normally takes to\nsafeguard and preserve its own proprietary information, provided that in no event shall the degree of care be less than a reasonable degree of care.\nUpon discovery of any prohibited use or disclosure by either the Receiving Party, any of its Representatives or otherwise, the Receiving Party shall\nimmediately notify the Disclosing Party in writing and shall make its best efforts to prevent any further prohibited use or disclosure; however, such\nremedial action shall in no manner relieve Receiving Party's obligations or liabilities for breach hereunder.\nb. Neither party may disclose the other party's Confidential Information to any third party without the Disclosing Party's prior written\nconsent, provided, that each party may disclose Confidential Information to its Representatives who need to know such Confidential Information for\nthe purpose of evaluating a Transaction on the Receiving Party's behalf if prior to providing such Representatives with such Confidential\nInformation the Receiving Party advises the Representatives of the confidential nature of the information so provided and of the terms of this\nAgreement, and such Representatives agree to maintain such Confidential Information in accordance with the terms of this Agreement and to\notherwise observe the terms and conditions of this Agreement. The Receiving Party acknowledges that it will be responsible for any breach of\nthis\nAgreement by its Representatives.\nC. In furtherance of this Agreement, without the prior written consent of the other party and except as otherwise provided herein, neither\nparty\nnor any of its Representatives may disclose to any person (i) that Confidential Information has been requested by or furnished or made\navailable to the Receiving Party or its Representatives, (ii) the fact that this Agreement exists, (iii) that either Arch or ICG is considering\na\nTransaction, (iv) that investigations, discussions or negotiations are taking place concerning a Transaction or (v) any of the terms, conditions or other\nfacts or information with respect to a Transaction or any other potential transaction involving Arch and ICG, including without limitation, the status\nor termination of this Agreement or any opinion or view with respect to the other party or the Confidential Information.\nd. In the event that either party determines not to proceed with a Transaction or at any time upon demand by the Disclosing Party, an\nauthorized officer of the Receiving Party shall promptly, at the election of the Receiving Party, either return to the Disclosing Party or destroy,\nincluding without limitation permanently deleting such Confidential Information from all computer records, all Confidential Information in the\nReceiving Party's possession or the possession of its Representatives which relates to the Transaction or such other business objective and shall\ncertify to the Disclosing Party as to such return or destruction. Notwithstanding the foregoing, (a) the Receiving Party shall be entitled to retain any\ncopies, extracts or other reproductions of the Confidential Information, in whole or in part, (i) to the extent necessary in order to comply with\napplicable legal and regulatory recordkeeping requirements or (ii) Confidential Information contained in materials submitted to the Receiving Party's\nBoard of Directors in accordance with the customary recordkeeping policies of the Receiving Party, and (b) the Receiving Party's legal, accounting\nand tax Representatives may retain documents or records that contain or refer to Confidential Information for the sole purpose of, and only to the\nextent required for,\n2\ncompliance with any relevant professional standards, codes or insurance policies applicable to the particular Representative. Notwithstanding the\nreturn or destruction of Confidential Information, the Receiving Party will continue to be bound by the non-disclosure obligations contained in this\nAgreement.\n3. Disclosures Required by Law. In the event that the Receiving Party or any of its Representatives are required by applicable law, regulation\nor\nlegal\nor\njudicial\nprocess,\nincluding\nwithout\nlimitation\nby\ndeposition,\ninterrogatory,\nrequest\nfor\ndocuments,\nsubpoena,\ncivil\ninvestigative\ndemand\nor\nsimilar process, to disclose any Confidential Information, the Receiving Party will provide the Disclosing Party with prompt written notice of such\nrequirement in order to enable the Disclosing Party to seek an appropriate protective order or other remedy, and the Receiving Party will consult and\ncooperate with the Disclosing Party to the extent permitted by law with respect to taking steps to resist or narrow the scope of such requirement or\nlegal process. If a protective order or other remedy is not obtained, the terms of this letter agreement are not waived by the Disclosing Party and\ndisclosure of Confidential Information is legally required, the Receiving Party or such of its Representatives will (a) disclose such information only\nto the extent required in the opinion of the Receiving Party's counsel and (b) give notice to the Disclosing Party of the information to be disclosed as\nfar in advance as is practicable. In any such event, the Receiving Party and its Representatives will use reasonable efforts to ensure that all\nConfidential Information that is so disclosed will be accorded confidential treatment.\n4. Material. Non-Public Information. The Receiving Party acknowledges that in its and its Representatives' examination of the Confidential\nInformation the Receiving Party and its Representatives will have access to material, non-public information, and that the Receiving Party is aware,\nand will advise its Representatives who are informed as to the matters that are the subject of this Agreement, that state and federal laws, including\nwithout limitation United States securities laws, impose restrictions on the dissemination of such information and trading in securities when in\npossession of such information.\n5. Disclaimer. SUBJECT TO THE LAST SENTENCE OF THIS SECTION 5, THE PARTIES HEREBY DISCLAIM ALL WARRANTIES,\nWHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY AND ALL OF ITS CONFIDENTIAL INFORMATION, AND EACH PARTY\nAGREES THAT NEITHER THE DISCLOSING PARTY NOR ITS REPRESENTATIVES OR ANY OTHER PERSON MAKES ANY\nREPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE ACCURACY OR COMPLETENESS OF THE\nCONFIDENTIAL INFORMATION, INCLUDING, WITHOUT LIMITATION, ANY FORECASTS, PROJECTIONS OR OTHER FORWARD-\nLOOKING INFORMATION INCLUDED THEREIN, AND THAT NEITHER THE DISCLOSING PARTY NOR ITS REPRESENTATIVES OR\nANY OTHER PERSON SHALL ASSUME ANY RESPONSIBILITY OR HAVE ANY LIABILITY TO THE RECEIVING PARTY OR ANY OF\nITS REPRESENTATIVES RESULTING FROM THE SELECTION OR USE OF THE CONFIDENTIAL INFORMATION BY THE RECEIVING\nPARTY OR ITS REPRESENTATIVES. THE RECEIVING PARTY ACKNOWLEDGES THAT IT IS NOT ENTITLED TO RELY ON THE\nACCURACY OR COMPLETENESS OF ANY CONFIDENTIAL INFORMATION AND THAT ONLY SUCH EXPRESS REPRESENTATIONS\nAND WARRANTIES REGARDING CONFIDENTIAL INFORMATION AS MAY BE MADE TO THE RECEIVING PARTY IN A DEFINITIVE\nWRITTEN AGREEMENT RELATING TO A TRANSACTION, IF ANY, SHALL HAVE ANY LEGAL EFFECT, SUBJECT TO THE TERMS\nAND CONDITIONS OF SUCH AGREEMENT. NOTWITHSTANDING THE FOREGOING, THE DISCLOSING PARTY HEREBY\nREPRESENTS AND WARRANTS THAT IT HAS THE AUTHORITY TO DISCLOSE THE CONFIDENTIAL INFORMATION.\n6.\nTerm. This Agreement shall commence as of the date hereof and shall remain in effect for two years. Any obligations imposed on the parties\nby\nthis Agreement that should by their terms survive the termination of this Agreement shall so survive.\n3\n7. Miscellaneous.\na. Each party acknowledges and agrees that no contract or agreement providing for a Transaction shall be deemed to exist, directly or\nindirectly, between the parties and their respective affiliates unless and until a definitive written agreement with respect to a Transaction has been\nexecuted and delivered by Arch and ICG. Each party also agrees that unless and until a definitive written agreement with respect to a Transaction has\nbeen executed and delivered by Arch and ICG, neither party, nor any affiliate thereof, will be under any legal obligation of any kind\nwhatsoever\nwith\nrespect to such a Transaction by virtue of this Agreement, except for the matters specifically provided herein, or otherwise or by virtue of any written\nor oral expression with respect to such a Transaction by either party's Representatives. Nothing contained in this Agreement nor the furnishing of\nany\nConfidential Information hereunder shall be construed as granting or conferring any rights by license or otherwise in any intellectual property.\nEach patty further acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals made with\nrespect to a Transaction, to terminate discussions and negotiations at any time, and to conduct any process for a Transaction as it shall, in its sole\ndiscretion, determine, including, without limitation, negotiating with any other interested party and entering into a definitive agreement without prior\nnotice to the other party or any other person.\nb. The Receiving Party shall not, nor shall it permit or assist any of its Representatives to, alter or remove any confidentiality label,\nproprietary label, patent marking, copyright notice or other legend placed on Confidential Information, and shall maintain and place any such notices\nor legends on applicable Confidential Information or copies thereof as directed by the Disclosing Party. The rights and obligations set forth in this\nAgreement shall take precedence over any inconsistent specific legend contained on, or any statements made in connection with the disclosure of,\nany Confidential Information.\nC. The parties acknowledge that, due to the unique nature of the Confidential Information, the Disclosing Party's remedies at law arc\ninadequate and that the Disclosing Party will suffer irreparable harm in the event of breach or threatened breach of any provision of this Agreement.\nAccordingly, in such event, the Disclosing Party shall be entitled to seek injunctive relief without a requirement to post bond, as well as any and\nall\nother applicable remedies at law or in equity. The party that has breached or threatened to breach this Agreement will not raise the defense of an\nadequate remedy at law.\nd. This Agreement may be amended and any of its terms and conditions may be waived only by a written agreement signed by both\nparties. No provisions regarding the obligations of the parties with respect to Confidential Information set forth in any subsequent or\ncontemporaneous agreement between the parties will take precedence over this Agreement unless (i) such provisions are specific to a particular\nbusiness objective or other arrangement between the parties and (ii) either (A) such provisions are more stringent than those contained herein or\n(B) the subsequent agreement specifically refers to this Agreement and waives or amends the applicable provisions hereof.\ne. The failure of either party at any time or times to require performance of any provision of this Agreement shall in no manner affect its\nrights at a later time to enforce the same. No waiver by either party of any condition or term shall be deemed to be a continuing waiver of such\ncondition or term or any other condition or term.\nf. This Agreement shall be binding upon and inure to the benefit of the heirs, successors and permitted assigns of the parties. Neither this\nAgreement nor the obligations of either party hereunder shall be assignable or transferable by such party without the prior written consent of the\nother\n4\nparty. Any attempted assignment of this Agreement without such consent shall be null and void and shall have no effect.\ng. If any provision of this Agreement shall, for any reason, be adjudged by any court of competent jurisdiction to be invalid or\nunenforceable, such judgment shall not affect, impair or invalidate the remainder of this Agreement but shall be confined in its operation to the\nprovision of this Agreement directly involved in the controversy in which such judgment shall have been rendered.\nh. Any notice required to be given hereunder shall be in writing, sent to the corporate headquarters of the parties and made to the\nattention of the persons executing this Agreement. Such notice shall be deemed duly delivered on the date of hand-delivery or one day after deposit\nwith an overnight courier with tracking capabilities, or five days after deposit in first class U.S. mail, postage prepaid, return receipt requested.\ni. This Agreement shall be governed by and construed in accordance with the law of the State of Delaware, without regard to its conflicts\nof law principles.\nj. No press release, advertisement, marketing materials or other releases for public consumption concerning or otherwise referring to the\nterms, conditions or existence of this Agreement shall be published by either party. Neither party shall promote or otherwise disclose the existence of\nthe relationship between the parties evidenced by this Agreement or any other agreement between the parties for purposes of soliciting or procuring\nsales, clients, investors, financing or other business engagements.\nk. All contacts or inquiries by Arch to ICG, including requests or scheduling of site visits and due diligence visits, shall be made through\nBen Hatfield, CEO of ICG, or Roger Nicholson, General Counsel of ICG, or those individuals expressly designated by either in writing.\nI. This Agreement constitutes the entire and exclusive agreement between the parties with respect to the subject matter hereof. All prior\nagreements, understandings and proposals, oral or written, between the parties with respect to the subject matter hereof are superseded by this\nAgreement.\nm. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which, when\ntaken together, shall constitute one and the same instrument. Electronic transmissions of executed copies of this Agreement shall be as effective as\nthe delivery of originally executed copies of this Agreement.\n[The remainder of this page has been left blank intentionally.]\n5\nIN WITNESS WHEREOF, this Non-Disclosure Agreement has been executed by the undersigned as of the day and year first above written.\nArch Coal, Inc.\nBy: /s/ Robert G. Jones\nName: Robert G. Jones\nTitle:\nSenior Vice President - Law, General\nCounsel & Secretary\nInternational Coal Group, Inc.\nBy: /s/ Roger L. Nicholson\nName: Roger L. Nicholson\nTitle:\nSenior Vice President, Secretary and General\nCounsel\n6	EX-99.(E)(2) 2 dex99e2.htm NON-DISCLOSURE AGREEMENT, DATED AS OF FEBRUARY 25, 2011\nExhibit (e)(2)\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (the “ Agreement”), dated as of this 25 day of February, 2011, is by and between Arch Coal, Inc., a Delaware\ncorporation (“Arch”), and International Coal Group, Inc., a Delaware corporation (“ICG”).\nRecitals\nA. The parties desire to enter into discussions concerning a potential negotiated transaction (a “Transaction”), which discussions may involve\nthe disclosure by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) of certain confidential or proprietary information\nrelating .to the Disclosing Party or the Transaction.\nB. The parties desire to set forth their respective rights and obligations with respect to the use, dissemination and protection of such\nconfidential or proprietary information.\nAgreements\nNOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements set forth herein and for other good\nand valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:\n1. Confidential Information.\na. All information, including without limitation all oral, written and electronic information, whether obtained prior to or subsequent to\nthe date of this Agreement, concerning the Disclosing Party or its affiliates that has been or may be furnished to the Receiving Party by or on behalf\nof the Disclosing Party or any of its Representatives (as defined below), and all analysis, compilations, forecasts, studies, notes, other materials and\nportions thereof prepared by the Receiving Party or any of its Representatives, or otherwise on its behalf, that contain, reflect or are based, in whole\nor in part, on such information shall be deemed “Confidential Information.”\nb. “Confidential Information” shall not include information that:\ni. is already known to the Receiving Party at the time of disclosure, but only to the extent that, to the knowledge of Receiving Party,\nsuch information is not subject to a duty of confidentiality to the Disclosing Party or any other person;\nii. was in the public domain at the time of disclosure or thereafter enters into the public domain through no breach of this\nAgreement by the Receiving Party or any of its Representatives;\niii. becomes known to the Receiving Party from a source other than the Disclosing Party or Disclosing Party’s Representatives,\nwhich source, to the knowledge of Receiving Party, has no duty of confidentiality to Disclosing Party or any other person with respect to the\ninformation; or\niv. is independently developed by the Receiving Party without reference to, reliance on or access to any of the Disclosing Party’s\nConfidential Information.\nth\nc. As used herein, “Representatives” shall mean, as to any person, such person’s affiliates and its and their respective directors, officers,\nemployees, agents, and advisors (including, without limitation, financial and legal advisors, consultants and accountants).\n2. Use, Dissemination and Protection of Confidential Information.\na. In consideration of the disclosure of Confidential Information hereunder, each party shall keep in confidence the other party’s\nConfidential Information for a period of two years from the date of this Agreement. In furtherance of the foregoing, each party shall use the\nConfidential Information only for the purposes of assessing, negotiating and documenting Transaction and not for any other purpose. The Receiving\nParty shall exercise the same degree of care with respect to the Disclosing Party’s Confidential Information as the Receiving Party normally takes to\nsafeguard and preserve its own proprietary information, provided that in no event shall the degree of care be less than a reasonable degree of care.\nUpon discovery of any prohibited use or disclosure by either the Receiving Party, any of its Representatives or otherwise, the Receiving Party shall\nimmediately notify the Disclosing Party in writing and shall make its best efforts to prevent any further prohibited use or disclosure; however, such\nremedial action shall in no manner relieve Receiving Party’s obligations or liabilities for breach hereunder.\nb. Neither party may disclose the other party’s Confidential Information to any third party without the Disclosing Party’s prior written\nconsent, provided, that each party may disclose Confidential Information to its Representatives who need to know such Confidential Information for\nthe purpose of evaluating a Transaction on the Receiving Party’s behalf if prior to providing such Representatives with such Confidential\nInformation the Receiving Party advises the Representatives of the confidential nature of the information so provided and of the terms of this\nAgreement, and such Representatives agree to maintain such Confidential Information in accordance with the terms of this Agreement and to\notherwise observe the terms and conditions of this Agreement. The Receiving Party acknowledges that it will be responsible for any breach of this\nAgreement by its Representatives.\nc. In furtherance of this Agreement, without the prior written consent of the other party and except as otherwise provided herein, neither\nparty nor any of its Representatives may disclose to any person (i) that Confidential Information has been requested by or furnished or made\navailable to the Receiving Party or its Representatives, (ii) the fact that this Agreement exists, (iii) that either Arch or ICG is considering a\nTransaction, (iv) that investigations, discussions or negotiations are taking place concerning a Transaction or (v) any of the terms, conditions or other\nfacts or information with respect to a Transaction or any other potential transaction involving Arch and ICG, including without limitation, the status\nor termination of this Agreement or any opinion or view with respect to the other party or the Confidential Information.\nd. In the event that either party determines not to proceed with a Transaction or at any time upon demand by the Disclosing Party, an\nauthorized officer of the Receiving Party shall promptly, at the election of the Receiving Party, either return to the Disclosing Party or destroy,\nincluding without limitation permanently deleting such Confidential Information from all computer records, all Confidential Information in the\nReceiving Party’s possession or the possession of its Representatives which relates to the Transaction or such other business objective and shall\ncertify to the Disclosing Party as to such return or destruction. Notwithstanding the foregoing, (a) the Receiving Party shall be entitled to retain any\ncopies, extracts or other reproductions of the Confidential Information, in whole or in part, (i) to the extent necessary in order to comply with\napplicable legal and regulatory recordkeeping requirements or (ii) Confidential Information contained in materials submitted to the Receiving Party’s\nBoard of Directors in accordance with the customary recordkeeping policies of the Receiving Party, and (b) the Receiving Party’s legal, accounting\nand tax Representatives may retain documents or records that contain or refer to Confidential Information for the sole purpose of, and only to the\nextent required for,\n2\ncompliance with any relevant professional standards, codes or insurance policies applicable to the particular Representative. Notwithstanding the\nreturn or destruction of Confidential Information, the Receiving Party will continue to be bound by the non-disclosure obligations contained in this\nAgreement.\n3. Disclosures Required by Law. In the event that the Receiving Party or any of its Representatives are required by applicable law, regulation\nor legal or judicial process, including without limitation by deposition, interrogatory, request for documents, subpoena, civil investigative demand or\nsimilar process, to disclose any Confidential Information, the Receiving Party will provide the Disclosing Party with prompt written notice of such\nrequirement in order to enable the Disclosing Party to seek an appropriate protective order or other remedy, and the Receiving Party will consult and\ncooperate with the Disclosing Party to the extent permitted by law with respect to taking steps to resist or narrow the scope of such requirement or\nlegal process. If a protective order or other remedy is not obtained, the terms of this letter agreement are not waived by the Disclosing Party and\ndisclosure of Confidential Information is legally required, the Receiving Party or such of its Representatives will (a) disclose such information only\nto the extent required in the opinion of the Receiving Party’s counsel and (b) give notice to the Disclosing Party of the information to be disclosed as\nfar in advance as is practicable. In any such event, the Receiving Party and its Representatives will use reasonable efforts to ensure that all\nConfidential Information that is so disclosed will be accorded confidential treatment.\n4. Material. Non-Public Information. The Receiving Party acknowledges that in its and its Representatives’ examination of the Confidential\nInformation the Receiving Party and its Representatives will have access to material, non-public information, and that the Receiving Party is aware,\nand will advise its Representatives who are informed as to the matters that are the subject of this Agreement, that state and federal laws, including\nwithout limitation United States securities laws, impose restrictions on the dissemination of such information and trading in securities when in\npossession of such information.\n5. Disclaimer. SUBJECT TO THE LAST SENTENCE OF THIS SECTION 5, THE PARTIES HEREBY DISCLAIM ALL WARRANTIES,\nWHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY AND ALL OF ITS CONFIDENTIAL INFORMATION, AND EACH PARTY\nAGREES THAT NEITHER THE DISCLOSING PARTY NOR ITS REPRESENTATIVES OR ANY OTHER PERSON MAKES ANY\nREPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE ACCURACY OR COMPLETENESS OF THE\nCONFIDENTIAL INFORMATION, INCLUDING, WITHOUT LIMITATION, ANY FORECASTS, PROJECTIONS OR OTHER FORWARD-\nLOOKING INFORMATION INCLUDED THEREIN, AND THAT NEITHER THE DISCLOSING PARTY NOR ITS REPRESENTATIVES OR\nANY OTHER PERSON SHALL ASSUME ANY RESPONSIBILITY OR HAVE ANY LIABILITY TO THE RECEIVING PARTY OR ANY OF\nITS REPRESENTATIVES RESULTING FROM THE SELECTION OR USE OF THE CONFIDENTIAL INFORMATION BY THE RECEIVING\nPARTY OR ITS REPRESENTATIVES. THE RECEIVING PARTY ACKNOWLEDGES THAT IT IS NOT ENTITLED TO RELY ON THE\nACCURACY OR COMPLETENESS OF ANY CONFIDENTIAL INFORMATION AND THAT ONLY SUCH EXPRESS REPRESENTATIONS\nAND WARRANTIES REGARDING CONFIDENTIAL INFORMATION AS MAY BE MADE TO THE RECEIVING PARTY IN A DEFINITIVE\nWRITTEN AGREEMENT RELATING TO A TRANSACTION, IF ANY, SHALL HAVE ANY LEGAL EFFECT, SUBJECT TO THE TERMS\nAND CONDITIONS OF SUCH AGREEMENT. NOTWITHSTANDING THE FOREGOING, THE DISCLOSING PARTY HEREBY\nREPRESENTS AND WARRANTS THAT IT HAS THE AUTHORITY TO DISCLOSE THE CONFIDENTIAL INFORMATION.\n6. Term. This Agreement shall commence as of the date hereof and shall remain in effect for two years. Any obligations imposed on the parties\nby this Agreement that should by their terms survive the termination of this Agreement shall so survive.\n3\n7. Miscellaneous.\na. Each party acknowledges and agrees that no contract or agreement providing for a Transaction shall be deemed to exist, directly or\nindirectly, between the parties and their respective affiliates unless and until a definitive written agreement with respect to a Transaction has been\nexecuted and delivered by Arch and ICG. Each party also agrees that unless and until a definitive written agreement with respect to a Transaction has\nbeen executed and delivered by Arch and ICG, neither party, nor any affiliate thereof, will be under any legal obligation of any kind whatsoever with\nrespect to such a Transaction by virtue of this Agreement, except for the matters specifically provided herein, or otherwise or by virtue of any written\nor oral expression with respect to such a Transaction by either party’s Representatives. Nothing contained in this Agreement nor the furnishing of\nany Confidential Information hereunder shall be construed as granting or conferring any rights by license or otherwise in any intellectual property.\nEach patty further acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals made with\nrespect to a Transaction, to terminate discussions and negotiations at any time, and to conduct any process for a Transaction as it shall, in its sole\ndiscretion, determine, including, without limitation, negotiating with any other interested party and entering into a definitive agreement without prior\nnotice to the other party or any other person.\nb. The Receiving Party shall not, nor shall it permit or assist any of its Representatives to, alter or remove any confidentiality label,\nproprietary label, patent marking, copyright notice or other legend placed on Confidential Information, and shall maintain and place any such notices\nor legends on applicable Confidential Information or copies thereof as directed by the Disclosing Party. The rights and obligations set forth in this\nAgreement shall take precedence over any inconsistent specific legend contained on, or any statements made in connection with the disclosure of,\nany Confidential Information.\nc. The parties acknowledge that, due to the unique nature of the Confidential Information, the Disclosing Party’s remedies at law arc\ninadequate and that the Disclosing Party will suffer irreparable harm in the event of breach or threatened breach of any provision of this Agreement.\nAccordingly, in such event, the Disclosing Party shall be entitled to seek injunctive relief without a requirement to post bond, as well as any and all\nother applicable remedies at law or in equity. The party that has breached or threatened to breach this Agreement will not raise the defense of an\nadequate remedy at law.\nd. This Agreement may be amended and any of its terms and conditions may be waived only by a written agreement signed by both\nparties. No provisions regarding the obligations of the parties with respect to Confidential Information set forth in any subsequent or\ncontemporaneous agreement between the parties will take precedence over this Agreement unless (i) such provisions are specific to a particular\nbusiness objective or other arrangement between the parties and (ii) either (A) such provisions are more stringent than those contained herein or\n(B) the subsequent agreement specifically refers to this Agreement and waives or amends the applicable provisions hereof.\ne. The failure of either party at any time or times to require performance of any provision of this Agreement shall in no manner affect its\nrights at a later time to enforce the same. No waiver by either party of any condition or term shall be deemed to be a continuing waiver of such\ncondition or term or any other condition or term.\nf. This Agreement shall be binding upon and inure to the benefit of the heirs, successors and permitted assigns of the parties. Neither this\nAgreement nor the obligations of either party hereunder shall be assignable or transferable by such party without the prior written consent of the\nother\n4\nparty. Any attempted assignment of this Agreement without such consent shall be null and void and shall have no effect.\ng. If any provision of this Agreement shall, for any reason, be adjudged by any court of competent jurisdiction to be invalid or\nunenforceable, such judgment shall not affect, impair or invalidate the remainder of this Agreement but shall be confined in its operation to the\nprovision of this Agreement directly involved in the controversy in which such judgment shall have been rendered.\nh. Any notice required to be given hereunder shall be in writing, sent to the corporate headquarters of the parties and made to the\nattention of the persons executing this Agreement. Such notice shall be deemed duly delivered on the date of hand-delivery or one day after deposit\nwith an overnight courier with tracking capabilities, or five days after deposit in first class U.S . mail, postage prepaid, return receipt requested.\ni. This Agreement shall be governed by and construed in accordance with the law of the State of Delaware, without regard to its conflicts\nof law principles.\nj. No press release, advertisement, marketing materials or other releases for public consumption concerning or otherwise referring to the\nterms, conditions or existence of this Agreement shall be published by either party. Neither party shall promote or otherwise disclose the existence of\nthe relationship between the parties evidenced by this Agreement or any other agreement between the parties for purposes of soliciting or procuring\nsales, clients, investors, financing or other business engagements.\nk. All contacts or inquiries by Arch to ICG, including requests or scheduling of site visits and due diligence visits, shall be made through\nBen Hatfield, CEO of ICG, or Roger Nicholson, General Counsel of ICG, or those individuals expressly designated by either in writing.\nI. This Agreement constitutes the entire and exclusive agreement between the parties with respect to the subject matter hereof. All prior\nagreements, understandings and proposals, oral or written, between the parties with respect to the subject matter hereof are superseded by this\nAgreement.\nm. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which, when\ntaken together, shall constitute one and the same instrument. Electronic transmissions of executed copies of this Agreement shall be as effective as\nthe delivery of originally executed copies of this Agreement.\n[The remainder of this page has been left blank intentionally.]\n5\nIN WITNESS WHEREOF, this Non-Disclosure Agreement has been executed by the undersigned as of the day and year first above written.\nArch Coal, Inc.\nBy: /s/ Robert G. Jones\nName: Robert G. Jones\nTitle: Senior Vice President — Law, General\nCounsel & Secretary\nInternational Coal Group, Inc.\nBy: /s/ Roger L. Nicholson\nName: Roger L. Nicholson\nTitle: Senior Vice President, Secretary and General\nCounsel\n6
5fa1bd78d9a23b5a3f8b76ef2d1045d7.pdf	effective_date jurisdiction party term	EXHIBIT B\nFORM OF\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this “Agreement”), is made and entered into as of the date on which it is fully executed, as\nindicated by signatures below, by and among HopFed Bancorp, Inc., a Delaware corporation (the “Company”) and the Stilwell Group (composed\nof Stilwell Activist Fund, L.P., Stilwell Activist Investments, L.P., and Stilwell Associates, L.P., each a Delaware limited partnership; Stilwell\nValue LLC, a Delaware limited liability company; and Joseph Stilwell, an individual; and their respective employees and representatives).\nWHEREAS, the Company and the Stilwell Group have agreed that it is in their mutual interests to enter into this Agreement as hereinafter\ndescribed.\nNOW THEREFORE, for good and valuable consideration, and intending to be legally bound hereby, the parties hereto mutually agree as\nfollows:\n1. In connection with that certain Standstill Agreement, dated April 10, 2018, by and among the Company and the Stilwell Group, the\nCompany intends to share information concerning the Company and its subsidiaries with the Stilwell Group, including, without limitation,\ninformation regarding the Company’s and its subsidiaries’ businesses, operations, and strategic options (if applicable), which may include\nconfidential or proprietary information (collectively the “Confidential Information”) and such Confidential Information may be shared among the\nStilwell Group’s affiliates, directors, officers, employees, representatives, and agents (collectively, the “Representatives”) who have a need to\nknow such information and are informed by the Stilwell Group of the confidential nature of such information. The term “Confidential\nInformation” does not include information that (a) is or becomes available to the Stilwell Group or its Representatives on a non-confidential basis\nfrom a source other than the Company; provided that such source is not known by the Stilwell Group or its Representatives to be bound by a\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or\nbecomes generally available to the public other than as a result of a disclosure by the Stilwell Group or its Representatives in violation of this\nAgreement, (c) was in the Stilwell Group’s or its Representatives’ possession at the time of disclosure by the Company, or (d) has been or is\nindependently developed by the Stilwell Group or its Representatives without the use of the Confidential Information. The Stilwell Group\nexpressly agrees to maintain all Confidential Information concerning the Company and its subsidiaries in confidence.\n2. The Stilwell Group expressly acknowledges that it and its Representatives are aware that the Confidential Information may contain\nmaterial, non-public information about the Company, and that federal and state securities laws may prohibit a person from purchasing or selling\nsecurities of a company, or from communicating such material, non-public information to any other person under circumstances in which it is\nreasonably foreseeable that such other person is likely to purchase or sell such securities, while the first-mentioned person is in possession of\nmaterial nonpublic information about such company. The Stilwell Group expressly acknowledges that it shall not, and shall use commercially\nreasonable efforts to ensure that its Representatives do not, trade or engage in any derivative or other transaction, on the basis of material,\nnon-public information in violation of such laws. To the extent any nonpublic information concerning the Company and its subsidiaries received\nby the Stilwell Group is material, this Agreement is intended to satisfy the confidentiality agreement exclusion of Regulation FD of the U.S .\nSecurities and Exchange Commission (the “SEC”) set forth in Rule 100(b)(2)(ii) of Regulation FD of the SEC.\nB-1\n3. Notwithstanding anything herein to the contrary, in the event that the Stilwell Group or its Representatives are required by applicable\nlaw, regulation or legal or judicial process (including without limitation, by deposition, interrogatory, request for documents, subpoena, civil\ninvestigative demand or similar process) to disclose any of the Confidential Information, the Stilwell Group will promptly notify(except where\nsuch notice would be legally prohibited) the Company so that the Company may seek a protective order or other appropriate remedy (and if the\nCompany seeks such an order, the Stilwell Group will provide such cooperation as the Company shall reasonably request), at its sole cost and\nexpense. Nothing herein shall be deemed to prevent the Stilwell Group or its Representatives, as the case may be, from honoring a subpoena,\nlegal process or other legal requirement that requires discovery, disclosure or production of the Confidential Information if (a) after notifying and\ncooperating with the Company as required above, the Stilwell Group produces or discloses only that portion of the Confidential Information\nwhich its outside legal counsel advises the Stilwell Group is legally required to be so produced or disclosed and the Stilwell Group informs the\nrecipient of such Confidential Information of the existence of this Agreement and the confidential nature of such Confidential Information; or\n(b) the Company consents in writing to having the Confidential Information produced or disclosed pursuant to the subpoena, legal process or\nother legal requirement.\n4. The Stilwell Group represents and warrants to the Company that this Agreement has been duly and validly authorized, executed and\ndelivered by the Stilwell Group, and is a valid and binding agreement enforceable against the Stilwell Group in accordance with its terms.\n5. The Company represents and warrants to the Stilwell Group that this Agreement has been duly and validly authorized, executed and\ndelivered by the Company, and is a valid and binding agreement enforceable against the Company in accordance with its terms.\n6. The Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic information of the\nCompany and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this Agreement and that,\nin addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable relief as a remedy\nfor such breach, and agrees that in conjunction therewith the Company shall not be required to post any bond.\n7. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all\nprior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not referred to\nherein.\n8. This Agreement shall be effective upon the execution of the Agreement, and will remain in effect until the date that is fifteen\n(15) business days prior to the deadline for the submission of stockholder nominations and proposals for the Company’s 2022 Annual Meeting of\nStockholders pursuant to the Company’s Certificate of Incorporation, provided, however, that the parties may agree in writing to extend the term\nof this Agreement.\n9. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to choice of\nlaw principles that may otherwise compel the application of the laws of any other jurisdiction. Each of the parties hereby irrevocably consents to\nthe exclusive jurisdiction of the state and federal courts sitting in the State of Delaware to resolve any dispute arising from this Agreement and\nwaives any defense of inconvenient or improper forum.\n10. The terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or portion\nthereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\n2\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties. All representations, warranties, covenants and agreements\nmade herein shall survive the execution and delivery of this Agreement.\n11. This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written\nagreement executed by all of the parties hereto.\n12. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one and\nthe same agreement.\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned as of the\nday and year indicated below.\nTHE STILWELL GROUP\nBy:\nJoseph Stilwell\nManaging Member\nDated: April , 2018\nHOPFED BANCORP, INC.\nBy:\nMichael Woolfolk\nEVP, COO, Corporate Secretary\nDated: April , 2018\n3	EXHIBIT B\nFORM OF\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this “Agreement”), is made and entered into as of the date on which it is fully executed, as\nindicated by signatures below, by and among HopFed Bancorp, Inc., a Delaware corporation (the “Company”) and the Stilwell Group (composed\nof Stilwell Activist Fund, L.P., Stilwell Activist Investments, L.P., and Stilwell Associates, L.P., each a Delaware limited partnership; Stilwell\nValue LLC, a Delaware limited liability company; and Joseph Stilwell, an individual; and their respective employees and representatives).\nWHEREAS, the Company and the Stilwell Group have agreed that it is in their mutual interests to enter into this Agreement as hereinafter\ndescribed.\nNOW THEREFORE, for good and valuable consideration, and intending to be legally bound hereby, the parties hereto mutually agree as\nfollows:\n1. In connection with that certain Standstill Agreement, dated April 10, 2018, by and among the Company and the Stilwell Group, the\nCompany intends to share information concerning the Company and its subsidiaries with the Stilwell Group, including, without limitation,\ninformation regarding the Company’s and its subsidiaries’ businesses, operations, and strategic options (if applicable), which may include\nconfidential or proprietary information (collectively the “Confidential Information”) and such Confidential Information may be shared among the\nStilwell Group’s affiliates, directors, officers, employees, representatives, and agents (collectively, the “Representatives”) who have a need to\nknow such information and are informed by the Stilwell Group of the confidential nature of such information. The term “Confidential\nInformation” does not include information that (a) is or becomes available to the Stilwell Group or its Representatives on a non-confidential basis\nfrom a source other than the Company; provided that such source is not known by the Stilwell Group or its Representatives to be bound by a\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or\nbecomes generally available to the public other than as a result of a disclosure by the Stilwell Group or its Representatives in violation of this\nAgreement, (c) was in the Stilwell Group’s or its Representatives’ possession at the time of disclosure by the Company, or (d) has been or is\nindependently developed by the Stilwell Group or its Representatives without the use of the Confidential Information. The Stilwell Group\nexpressly agrees to maintain all Confidential Information concerning the Company and its subsidiaries in confidence.\n2. The Stilwell Group expressly acknowledges that it and its Representatives are aware that the Confidential Information may contain\nmaterial, non-public information about the Company, and that federal and state securities laws may prohibit a person from purchasing or selling\nsecurities of a company, or from communicating such material, non-public information to any other person under circumstances in which it is\nreasonably foreseeable that such other person is likely to purchase or sell such securities, while the first-mentioned person is in possession of\nmaterial nonpublic information about such company. The Stilwell Group expressly acknowledges that it shall not, and shall use commercially\nreasonable efforts to ensure that its Representatives do not, trade or engage in any derivative or other transaction, on the basis of material,\nnon-public information in violation of such laws. To the extent any nonpublic information concerning the Company and its subsidiaries received\nby the Stilwell Group is material, this Agreement is intended to satisfy the confidentiality agreement exclusion of Regulation FD of the U.S.\nSecurities and Exchange Commission (the “SEC”) set forth in Rule 100(b)(2)(ii) of Regulation FD of the SEC.\nB-1\n3. Notwithstanding anything herein to the contrary, in the event that the Stilwell Group or its Representatives are required by applicable\nlaw, regulation or legal or judicial process (including without limitation, by deposition, interrogatory, request for documents, subpoena, civil\ninvestigative demand or similar process) to disclose any of the Confidential Information, the Stilwell Group will promptly notify(except where\nsuch notice would be legally prohibited) the Company so that the Company may seek a protective order or other appropriate remedy (and if the\nCompany seeks such an order, the Stilwell Group will provide such cooperation as the Company shall reasonably request), at its sole cost and\nexpense. Nothing herein shall be deemed to prevent the Stilwell Group or its Representatives, as the case may be, from honoring a subpoena,\nlegal process or other legal requirement that requires discovery, disclosure or production of the Confidential Information if (a) after notifying and\ncooperating with the Company as required above, the Stilwell Group produces or discloses only that portion of the Confidential Information\nwhich its outside legal counsel advises the Stilwell Group is legally required to be so produced or disclosed and the Stilwell Group informs the\nrecipient of such Confidential Information of the existence of this Agreement and the confidential nature of such Confidential Information; or\n(b) the Company consents in writing to having the Confidential Information produced or disclosed pursuant to the subpoena, legal process or\nother legal requirement.\n4. The Stilwell Group represents and warrants to the Company that this Agreement has been duly and validly authorized, executed and\ndelivered by the Stilwell Group, and is a valid and binding agreement enforceable against the Stilwell Group in accordance with its terms.\n5. The Company represents and warrants to the Stilwell Group that this Agreement has been duly and validly authorized, executed and\ndelivered by the Company, and is a valid and binding agreement enforceable against the Company in accordance with its terms.\n6. The Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic information of the\nCompany and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this Agreement and that,\nin addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable relief as a remedy\nfor such breach, and agrees that in conjunction therewith the Company shall not be required to post any bond.\n7. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all\nprior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not referred to\nherein.\n8. This Agreement shall be effective upon the execution of the Agreement, and will remain in effect until the date that is fifteen\n(15) business days prior to the deadline for the submission of stockholder nominations and proposals for the Company’s 2022 Annual Meeting of\nStockholders pursuant to the Company’s Certificate of Incorporation, provided, however, that the parties may agree in writing to extend the term\nof this Agreement.\n9. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to choice of\nlaw principles that may otherwise compel the application of the laws of any other jurisdiction. Each of the parties hereby irrevocably consents to\nthe exclusive jurisdiction of the state and federal courts sitting in the State of Delaware to resolve any dispute arising from this Agreement and\nwaives any defense of inconvenient or improper forum.\n10. The terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or portion\nthereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\n2\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties. All representations, warranties, covenants and agreements\nmade herein shall survive the execution and delivery of this Agreement.\n11. This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written\nagreement executed by all of the parties hereto.\n12.  This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one and\nthe same agreement.\nIN WITNESS WHEREQOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned as of the\nday and year indicated below.\nTHE STILWELL GROUP\nBy:\nJoseph Stilwell\nManaging Member\nDated: April , 2018\nHOPFED BANCORP, INC.\nBy:\nMichael Woolfolk\nEVP, COO, Corporate Secretary\nDated: April , 2018	EXHIBIT B\nFORM OF\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this "Agreement"), is made and entered into as of the date on which it is fully executed, as\nindicated by signatures below, by and among HopFed Bancorp, Inc., a Delaware corporation (the "Company") and the Stilwell Group (composed\nof Stilwell Activist Fund, L.P., Stilwell Activist Investments, L.P., and Stilwell Associates, L.P., each a Delaware limited partnership; Stilwell\nValue LLC, a Delaware limited liability company; and Joseph Stilwell, an individual; and their respective employees and representatives).\nWHEREAS, the Company and the Stilwell Group have agreed that it is in their mutual interests to enter into this Agreement as hereinafter\ndescribed.\nNOW THEREFORE, for good and valuable consideration, and intending to be legally bound hereby, the parties hereto mutually agree as\nfollows:\n1. In connection with that certain Standstill Agreement, dated April 10, 2018, by and among the Company and the Stilwell Group, the\nCompany intends to share information concerning the Company and its subsidiaries with the Stilwell Group, including, without limitation,\ninformation regarding the Company's and its subsidiaries' businesses, operations, and strategic options (if applicable), which may include\nconfidential or proprietary information (collectively the "Confidential Information") and such Confidential Information may be shared among the\nStilwell Group's affiliates, directors, officers, employees, representatives, and agents (collectively, the "Representatives") who have a need to\nknow such information and are informed by the Stilwell Group of the confidential nature of such information. The term "Confidential\nInformation" does not include information that (a) is or becomes available to the Stilwell Group or its Representatives on a non-confidential basis\nfrom a source other than the Company; provided that such source is not known by the Stilwell Group or its Representatives to be bound by\na\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or\nbecomes\ngenerally\navailable\nto\nthe\npublic\nother\nthan\nas\na\nresult\nof\na\ndisclosure\nby\nthe\nStilwell\nGroup\nor\nits\nRepresentatives\nin\nviolation\nof\nthis\nAgreement, (c) was in the Stilwell Group's or its Representatives' possession at the time of disclosure by the Company, or (d) has been or is\nindependently developed by the Stilwell Group or its Representatives without the use of the Confidential Information. The Stilwell Group\nexpressly agrees to maintain all Confidential Information concerning the Company and its subsidiaries in confidence.\n2. The Stilwell Group expressly acknowledges that it and its Representatives are aware that the Confidential Information may contain\nmaterial, non-public information about the Company, and that federal and state securities laws may prohibit a person from purchasing or selling\nsecurities of a company, or from communicating such material, non-public information to any other person under circumstances in which it is\nreasonably foreseeable that such other person is likely to purchase or sell such securities, while the first-mentioned person is in possession of\nmaterial nonpublic information about such company. The Stilwell Group expressly acknowledges that it shall not, and shall use commercially\nreasonable efforts to ensure that its Representatives do not, trade or engage in any derivative or other transaction, on the basis of material,\nnon-public information in violation of such laws. To the extent any nonpublic information concerning the Company and its subsidiaries received\nby the Stilwell Group is material, this Agreement is intended to satisfy the confidentiality agreement exclusion of Regulation FD of the U.S.\nSecurities and Exchange Commission (the "SEC") set forth in Rule 100(b)(2)(ii) of Regulation FD of the SEC.\nB-1\n3. Notwithstanding anything herein to the contrary, in the event that the Stilwell Group or its Representatives are required by applicable\nlaw, regulation or legal or judicial process (including without limitation, by deposition, interrogatory, request for documents, subpoena, civil\ninvestigative demand or similar process) to disclose any of the Confidential Information, the Stilwell Group will promptly notify(except where\nsuch notice would be legally prohibited) the Company so that the Company may seek a protective order or other appropriate remedy (and if the\nCompany seeks such an order, the Stilwell Group will provide such cooperation as the Company shall reasonably request), at its sole cost and\nexpense. Nothing herein shall be deemed to prevent the Stilwell Group or its Representatives, as the case may be, from honoring a subpoena,\nlegal process or other legal requirement that requires discovery, disclosure or production of the Confidential Information if (a) after notifying and\ncooperating with the Company as required above, the Stilwell Group produces or discloses only that portion of the Confidential Information\nwhich its outside legal counsel advises the Stilwell Group is legally required to be so produced or disclosed and the Stilwell Group informs\nthe\nrecipient of such Confidential Information of the existence of this Agreement and the confidential nature of such Confidential Information; or\n(b) the Company consents in writing to having the Confidential Information produced or disclosed pursuant to the subpoena, legal process or\nother legal requirement.\n4. The Stilwell Group represents and warrants to the Company that this Agreement has been duly and validly authorized, executed and\ndelivered by the Stilwell Group, and is a valid and binding agreement enforceable against the Stilwell Group in accordance with its terms.\n5. The Company represents and warrants to the Stilwell Group that this Agreement has been duly and validly authorized, executed and\ndelivered by the Company, and is a valid and binding agreement enforceable against the Company in accordance with its terms.\n6. The Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic information of the\nCompany and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this Agreement and that,\nin addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable relief as a remedy\nfor such breach, and agrees that in conjunction therewith the Company shall not be required to post any bond.\n7. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all\nprior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not referred to\nherein.\n8. This Agreement shall be effective upon the execution of the Agreement, and will remain in effect until the date that is fifteen\n(15) business days prior to the deadline for the submission of stockholder nominations and proposals for the Company's 2022 Annual Meeting of\nStockholders pursuant to the Company's Certificate of Incorporation, provided, however, that the parties may agree in writing to extend the term\nof this Agreement.\n9. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to choice of\nlaw principles that may otherwise compel the application of the laws of any other jurisdiction. Each of the parties hereby irrevocably consents to\nthe exclusive jurisdiction of the state and federal courts sitting in the State of Delaware to resolve any dispute arising from this Agreement and\nwaives any defense of inconvenient or improper forum.\n10. The terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or portion\nthereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\n2\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties. All representations, warranties, covenants and agreements\nmade herein shall survive the execution and delivery of this Agreement.\n11.\nThis Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written\nagreement executed by all of the parties hereto.\n12. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one and\nthe same agreement.\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned as of the\nday and year indicated below.\nTHE STILWELL GROUP\nBy:\nJoseph Stilwell\nManaging Member\nDated: April , 2018\nHOPFED BANCORP, INC.\nBy:\nMichael Woolfolk\nEVP, COO, Corporate Secretary\nDated: April , 2018\n3	EXHIBIT B\nFORM OF\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this “Agreement”), is made and entered into as of the date on which it is fully executed, as\nindicated by signatures below, by and among HopFed Bancorp, Inc., a Delaware corporation (the “Company”) and the Stilwell Group (composed\nof Stilwell Activist Fund, L.P., Stilwell Activist Investments, L.P., and Stilwell Associates, L.P., each a Delaware limited partnership; Stilwell\nValue LLC, a Delaware limited liability company; and Joseph Stilwell, an individual; and their respective employees and representatives).\nWHEREAS, the Company and the Stilwell Group have agreed that it is in their mutual interests to enter into this Agreement as hereinafter\ndescribed.\nNOW THEREFORE, for good and valuable consideration, and intending to be legally bound hereby, the parties hereto mutually agree as\nfollows:\n1. In connection with that certain Standstill Agreement, dated April 10, 2018, by and among the Company and the Stilwell Group, the\nCompany intends to share information concerning the Company and its subsidiaries with the Stilwell Group, including, without limitation,\ninformation regarding the Company’s and its subsidiaries’ businesses, operations, and strategic options (if applicable), which may include\nconfidential or proprietary information (collectively the “Confidential Information”) and such Confidential Information may be shared among the\nStilwell Group’s affiliates, directors, officers, employees, representatives, and agents (collectively, the “Representatives”) who have a need to\nknow such information and are informed by the Stilwell Group of the confidential nature of such information. The term “Confidential\nInformation” does not include information that (a) is or becomes available to the Stilwell Group or its Representatives on a non-confidential basis\nfrom a source other than the Company; provided that such source is not known by the Stilwell Group or its Representatives to be bound by a\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or\nbecomes generally available to the public other than as a result of a disclosure by the Stilwell Group or its Representatives in violation of this\nAgreement, (c) was in the Stilwell Group’s or its Representatives’ possession at the time of disclosure by the Company, or (d) has been or is\nindependently developed by the Stilwell Group or its Representatives without the use of the Confidential Information. The Stilwell Group\nexpressly agrees to maintain all Confidential Information concerning the Company and its subsidiaries in confidence.\n2. The Stilwell Group expressly acknowledges that it and its Representatives are aware that the Confidential Information may contain\nmaterial, non-public information about the Company, and that federal and state securities laws may prohibit a person from purchasing or selling\nsecurities of a company, or from communicating such material, non-public information to any other person under circumstances in which it is\nreasonably foreseeable that such other person is likely to purchase or sell such securities, while the first-mentioned person is in possession of\nmaterial nonpublic information about such company. The Stilwell Group expressly acknowledges that it shall not, and shall use commercially\nreasonable efforts to ensure that its Representatives do not, trade or engage in any derivative or other transaction, on the basis of material,\nnon-public information in violation of such laws. To the extent any nonpublic information concerning the Company and its subsidiaries received\nby the Stilwell Group is material, this Agreement is intended to satisfy the confidentiality agreement exclusion of Regulation FD of the U.S .\nSecurities and Exchange Commission (the “SEC”) set forth in Rule 100(b)(2)(ii) of Regulation FD of the SEC.\nB-1\n3. Notwithstanding anything herein to the contrary, in the event that the Stilwell Group or its Representatives are required by applicable\nlaw, regulation or legal or judicial process (including without limitation, by deposition, interrogatory, request for documents, subpoena, civil\ninvestigative demand or similar process) to disclose any of the Confidential Information, the Stilwell Group will promptly notify(except where\nsuch notice would be legally prohibited) the Company so that the Company may seek a protective order or other appropriate remedy (and if the\nCompany seeks such an order, the Stilwell Group will provide such cooperation as the Company shall reasonably request), at its sole cost and\nexpense. Nothing herein shall be deemed to prevent the Stilwell Group or its Representatives, as the case may be, from honoring a subpoena,\nlegal process or other legal requirement that requires discovery, disclosure or production of the Confidential Information if (a) after notifying and\ncooperating with the Company as required above, the Stilwell Group produces or discloses only that portion of the Confidential Information\nwhich its outside legal counsel advises the Stilwell Group is legally required to be so produced or disclosed and the Stilwell Group informs the\nrecipient of such Confidential Information of the existence of this Agreement and the confidential nature of such Confidential Information; or\n(b) the Company consents in writing to having the Confidential Information produced or disclosed pursuant to the subpoena, legal process or\nother legal requirement.\n4. The Stilwell Group represents and warrants to the Company that this Agreement has been duly and validly authorized, executed and\ndelivered by the Stilwell Group, and is a valid and binding agreement enforceable against the Stilwell Group in accordance with its terms.\n5. The Company represents and warrants to the Stilwell Group that this Agreement has been duly and validly authorized, executed and\ndelivered by the Company, and is a valid and binding agreement enforceable against the Company in accordance with its terms.\n6. The Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic information of the\nCompany and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this Agreement and that,\nin addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable relief as a remedy\nfor such breach, and agrees that in conjunction therewith the Company shall not be required to post any bond.\n7. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all\nprior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not referred to\nherein.\n8. This Agreement shall be effective upon the execution of the Agreement, and will remain in effect until the date that is fifteen\n(15) business days prior to the deadline for the submission of stockholder nominations and proposals for the Company’s 2022 Annual Meeting of\nStockholders pursuant to the Company’s Certificate of Incorporation, provided, however, that the parties may agree in writing to extend the term\nof this Agreement.\n9. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to choice of\nlaw principles that may otherwise compel the application of the laws of any other jurisdiction. Each of the parties hereby irrevocably consents to\nthe exclusive jurisdiction of the state and federal courts sitting in the State of Delaware to resolve any dispute arising from this Agreement and\nwaives any defense of inconvenient or improper forum.\n10. The terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or portion\nthereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\n2\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties. All representations, warranties, covenants and agreements\nmade herein shall survive the execution and delivery of this Agreement.\n11. This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written\nagreement executed by all of the parties hereto.\n12. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one and\nthe same agreement.\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned as of the\nday and year indicated below.\nTHE STILWELL GROUP\nBy:\nJoseph Stilwell\nManaging Member\nDated: April , 2018\nHOPFED BANCORP, INC.\nBy:\nMichael Woolfolk\nEVP, COO, Corporate Secretary\nDated: April , 2018\n3
636c32d05549e3a5b8a561027f3f9f57.pdf	effective_date jurisdiction party term	EX-10.1 2 a17-24905_1ex10d1.htm EX-10.1\nExhibit 10.1\nOctober 31, 2017\nPERSONAL AND CONFIDENTIAL\nJeffrey M. Snider\nBy email\nDear Jeff:\nThis consulting agreement (“Agreement”) is effective as of January 1, 2018 (“Effective Date”), by and between Sonus Networks, Inc.,\nits successors and assigns (collectively, “Sonus”), and Jeffrey M. Snider (“Consultant”). Sonus and Consultant hereby agree to the following:\n1. Title, Term, and Termination. Sonus will retain Consultant as “Senior Consultant,” and Consultant will accept such retention,\ncommencing as of the Effective Date of this Agreement and terminating on September 30, 2018. This Agreement may be terminated by\nConsultant for any reason or no reason upon thirty (30) days written notice to Sonus. Sonus may terminate this Agreement only for cause.\n2. Compensation. Consultant shall be paid $20,000 per month during the term of this Agreement, as compensation for all services\nrendered. Consultant shall have the responsibility for the payment of all federal, state and local taxes for any compensation payable to\nConsultant hereunder; provided, however, to the extent required by law, the Company may withhold from compensation payable to Consultant\nall applicable federal, state and local withholding taxes.\n3. Independent Contractor. The parties agree that Consultant is an independent contractor, and no other relationship, status, or legal\norganization shall be implied or created by this Agreement. Consultant shall have no power or authority to bind the Company or act on behalf of\nthe Company in any manner.\n4. Confidential Information. The terms of the Non-Disclosure Agreement (“NDA”) between the Company and the Consultant of even\ndate herewith in the form attached hereto is hereby incorporated by reference. The terms of the Confidentiality, Non-Competition and\nAssignment of Inventions Agreement, earlier signed by Consultant as a full-time employee, shall survive the signature of the NDA.\n5. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of\nMassachusetts, without regard to its choice of law principles, and the parties agree that all disputes will be submitted to courts in Massachusetts.\n*\n*\n*\nSonus Networks, Inc.\nJeffrey M. Snider\n/s/ Raymond Dolan\n/s/ Jeffrey M. Snider\nSigned:\nSigned: Jeffrey M. Snider\nDate: October 31, 2017\nDate: October 31, 2017\nNon-Disclosure Agreement\nThis NON-DISCLOSURE AGREEMENT (“Agreement”), effective as of the date of execution by both parties (the “Effective Date”), is\nbetween Sonus Networks, Inc. including its subsidiaries and affiliates, successors and assigns, with offices located at 4 Technology Park Drive,\nWestford, Massachusetts 01886 (the “Company”) and Jeffrey M. Snider (the “Recipient”). The Company would like the Recipient to provide\nservices (“Services”) as a contractor or consultant to the Company and, to further these ends, the Company may disclose Confidential\nInformation (as defined below) to the Recipient to assist the Recipient in performing such Services. This Agreement covers information that has\nbeen previously disclosed by the Company and information that will be disclosed by the Company on or after the Effective Date.\n1.\n“Confidential Information” shall mean all commercially valuable, proprietary and confidential information and trade secrets with\nrespect to the Company’s business and products, whether of a technical, business or other nature (including, without limitation, know-how and\ninformation relating to the technology, customers, business plans, promotional and marketing activities, finances and other business affairs of\nCompany), that has been or is disclosed to Recipient or is otherwise learned by Recipient in the course of its discussions or business dealings\nwith, or its physical or electronic access to the premises of, the Company, and that has been identified as being proprietary and/or confidential or\nthat by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as proprietary and confidential.\n2.\nThe Recipient agrees that all Confidential Information of the Company shall (a) remain the secret and confidential property of\nCompany, which the Recipient will hold and protect in secrecy and confidence using all reasonable precautions including, but not limited to,\nusing precautions no less stringent than those employed by the Recipient to protect its own Confidential Information but in no event less than a\nreasonable degree of care; (b) not be used for any purpose other than evaluation and/or provision of the Services; (c) not be disclosed to any\nperson other than those employees or consultants of the Recipient who have a need to know the Confidential Information to perform the Services\n(and the Recipient shall be responsible for any breach of this Agreement by any of them); and (d) not be recorded or copied except to the extent\nspecifically authorized by the Company in writing. In addition, without prior written consent of the Company, the Recipient will not disclose the\nfact that the Services are being contemplated by or provided to the Company.\n3.\nThe restrictions set forth above shall not apply to information that the Recipient can establish (a) is now or subsequently becomes in\nthe public domain; (b) is lawfully received by the Recipient from a third party not bound in a confidential relationship to the Company; (c) was\nalready in the Recipient’s possession at the time such information was disclosed by the Company to the Recipient; or (d) was independently\ndeveloped by the Recipient without use of the information disclosed under this Agreement. If a portion or aspect of the Confidential Information\nbecomes generally known, only that portion or aspect shall not be governed by this Agreement and all other aspects of the Confidential\nInformation shall remain subject to the provisions of this Agreement.\n4.\nThe Recipient shall destroy or return to the Company, at the Company’s request, all Confidential Information (including, without\nlimitation, any copies, extracts or other reproductions in whole or in part of such Confidential Information) within ten (10) days of any such\nrequest by the Company and the individual or officer of the Recipient supervising such destruction shall certify in writing to the Company that\nsuch destruction occurred. Any oral Confidential Information shall be kept confidential subject to this Agreement.\n5.\nThe Recipient agrees not to decompile, reverse engineer or disassemble any portion of the Company’s products.\n6.\nAll information is provided “as is” and without any warranty, express, implied or otherwise, regarding its accuracy or performance.\n7.\nIf a Recipient becomes compelled by law or court order to disclose Confidential Information of the Company, the Recipient will\nprovide the Company with prompt notice of such requirement so the Company may seek a protective order or other appropriate remedy. If such\nprotective order or other remedy is not obtained, the Recipient agrees to furnish only that portion of the Confidential Information that it is\nadvised by legal counsel is required by applicable law or court order, and such disclosure will not result in any liability hereunder.\n8.\nThe Recipient acknowledges that any violation of this Agreement may have a material adverse effect upon, and result in irreparable\ndamage to, the Company and that, in the event of any such violation, without limiting any other available remedies, the Company shall be\nentitled to seek an injunction and other equitable relief, without the need for proving actual damages or the posting of a bond. No failure or delay\nby either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise or any right, power or privilege.\n9.\nThe Recipient certifies that none of the Company’s Confidential Information, or any portion thereof, will be exported to any country in\nviolation of any applicable export control laws or regulations.\n10.\nFrom time to time during the term of this Agreement, the Company may disclose information related to future products, features or\nenhancements in order to support and obtain feedback for the Company’s vision and strategy for development efforts and plans (“Product\nRoadmap”). Development efforts and plans are subject to change at any time, without notice. The Company provides no assurances that the\nCompany will introduce future products, features or enhancements described in a presentation containing Product Roadmap information, and the\nCompany assumes no responsibility to introduce such products, features or enhancements.\n11.\nThis Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and may only be amended\nby a writing signed by both parties. Either party may terminate this Agreement upon sixty (60) days written notice to the other party.\nNotwithstanding the foregoing, the obligations of the parties contained in this Agreement shall survive indefinitely and continue beyond the\ntermination of this Agreement. If any provision of this Agreement is found invalid or unenforceable under any applicable law, such invalidity or\nunenforceability shall not affect the validity or enforceability of the remaining portions of this Agreement. This Agreement will be governed by\nand construed in accordance with the laws of the Commonwealth of Massachusetts without regard to its rules regarding conflicts of law. The\nparties irrevocably submit to the exclusive jurisdiction of the courts of the Commonwealth of Massachusetts. The language of this Agreement\nshall be construed as a whole, according to its fair meaning, not strictly for or against either party, with no regard whatsoever to the status of any\nperson who drafted all or any portion of this Agreement. This Agreement may be executed in counterparts, each of which shall be deemed an\noriginal but all of which taken together shall be deemed to constitute one and the same instrument. This Agreement may not be assigned by\neither party.\n12.\nNotwithstanding any provision to the contrary, Recipient agrees to comply with all applicable laws with regard to its receipt, processing\nand holding of Discloser information, including without limitation employee information, and compliance with privacy laws.\nCOMPANY: SONUS NETWORKS, INC.\nBy:\n/s/ Matthew Thaler\nName: Matthew Thaler\nTitle: General Counsel\nDate: October 31, 2017\nJEFFREY M. SNIDER\nBy:\n/s/ Jeffrey M. Snider\nName: Jeffrey M. Snider\nDate: October 31, 2017	EX-10.1 2 a17-24905_1ex10d1.htm EX-10.1\nExhibit 10.1\nOctober 31, 2017\nPERSONAL AND CONFIDENTIAL\nJeffrey M. Snider\nBy email\nDear Jeff:\nThis consulting agreement (“Agreement”) is effective as of January 1, 2018 (“Effective Date), by and between Sonus Networks, Inc.,\nits successors and assigns (collectively, “Sonus”), and Jeffrey M. Snider (“Consultant”). Sonus and Consultant hereby agree to the following:\n1. Title, Term, and Termination. Sonus will retain Consultant as “Senior Consultant,” and Consultant will accept such retention,\ncommencing as of the Effective Date of this Agreement and terminating on September 30, 2018. This Agreement may be terminated by\nConsultant for any reason or no reason upon thirty (30) days written notice to Sonus. Sonus may terminate this Agreement only for cause.\n2. Compensation. Consultant shall be paid $20,000 per month during the term of this Agreement, as compensation for all services\nrendered. Consultant shall have the responsibility for the payment of all federal, state and local taxes for any compensation payable to\nConsultant hereunder; provided, however, to the extent required by law, the Company may withhold from compensation payable to Consultant\nall applicable federal, state and local withholding taxes.\n3. Independent Contractor. The parties agree that Consultant is an independent contractor, and no other relationship, status, or legal\norganization shall be implied or created by this Agreement. Consultant shall have no power or authority to bind the Company or act on behalf of\nthe Company in any manner.\n4. Confidential Information. The terms of the Non-Disclosure Agreement (“NDA”) between the Company and the Consultant of even\ndate herewith in the form attached hereto is hereby incorporated by reference. The terms of the Confidentiality, Non-Competition and\nAssignment of Inventions Agreement, earlier signed by Consultant as a full-time employee, shall survive the signature of the NDA.\n5. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of\nMassachusetts, without regard to its choice of law principles, and the parties agree that all disputes will be submitted to courts in Massachusetts.\n* * *\nSonus Networks, Inc. Jeffrey M. Snider\n/s/ Raymond Dolan /s/ Jeffrey M. Snider\nSigned: Signed: Jeffrey M. Snider\nDate: October 31, 2017 Date: October 31, 2017\n \nNon-Disclosure Agreement\nThis NON-DISCLOSURE AGREEMENT (“Agreement”), effective as of the date of execution by both parties (the “Effective Date”), is\nbetween Sonus Networks, Inc. including its subsidiaries and affiliates, successors and assigns, with offices located at 4 Technology Park Drive,\nWestford, Massachusetts 01886 (the “Company”) and Jeffrey M. Snider (the “Recipient”). The Company would like the Recipient to provide\nservices (“Services”) as a contractor or consultant to the Company and, to further these ends, the Company may disclose Confidential\nInformation (as defined below) to the Recipient to assist the Recipient in performing such Services. This Agreement covers information that has\nbeen previously disclosed by the Company and information that will be disclosed by the Company on or after the Effective Date.\n1. “Confidential Information” shall mean all commercially valuable, proprietary and confidential information and trade secrets with\nrespect to the Company’s business and products, whether of a technical, business or other nature (including, without limitation, know-how and\ninformation relating to the technology, customers, business plans, promotional and marketing activities, finances and other business affairs of\nCompany), that has been or is disclosed to Recipient or is otherwise learned by Recipient in the course of its discussions or business dealings\nwith, or its physical or electronic access to the premises of, the Company, and that has been identified as being proprietary and/or confidential or\nthat by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as proprietary and confidential.\n2. The Recipient agrees that all Confidential Information of the Company shall (a) remain the secret and confidential property of\nCompany, which the Recipient will hold and protect in secrecy and confidence using all reasonable precautions including, but not limited to,\nusing precautions no less stringent than those employed by the Recipient to protect its own Confidential Information but in no event less than a\nreasonable degree of care; (b) not be used for any purpose other than evaluation and/or provision of the Services; (c) not be disclosed to any\nperson other than those employees or consultants of the Recipient who have a need to know the Confidential Information to perform the Services\n(and the Recipient shall be responsible for any breach of this Agreement by any of them); and (d) not be recorded or copied except to the extent\nspecifically authorized by the Company in writing. In addition, without prior written consent of the Company, the Recipient will not disclose the\nfact that the Services are being contemplated by or provided to the Company.\n3. The restrictions set forth above shall not apply to information that the Recipient can establish (a) is now or subsequently becomes in\nthe public domain; (b) is lawfully received by the Recipient from a third party not bound in a confidential relationship to the Company; (c) was\nalready in the Recipient’s possession at the time such information was disclosed by the Company to the Recipient; or (d) was independently\ndeveloped by the Recipient without use of the information disclosed under this Agreement. If a portion or aspect of the Confidential Information\nbecomes generally known, only that portion or aspect shall not be governed by this Agreement and all other aspects of the Confidential\nInformation shall remain subject to the provisions of this Agreement.\n4. The Recipient shall destroy or return to the Company, at the Company’s request, all Confidential Information (including, without\nlimitation, any copies, extracts or other reproductions in whole or in part of such Confidential Information) within ten (10) days of any such\nrequest by the Company and the individual or officer of the Recipient supervising such destruction shall certify in writing to the Company that\nsuch destruction occurred. Any oral Confidential Information shall be kept confidential subject to this Agreement.\n5. The Recipient agrees not to decompile, reverse engineer or disassemble any portion of the Company’s products.\n6. All information is provided “as is” and without any warranty, express, implied or otherwise, regarding its accuracy or performance.\n7. If a Recipient becomes compelled by law or court order to disclose Confidential Information of the Company, the Recipient will\nprovide the Company with prompt notice of such requirement so the Company may seek a protective order or other appropriate remedy. If such\nprotective order or other remedy is not obtained, the Recipient agrees to furnish only that portion of the Confidential Information that it is\nadvised by legal counsel is required by applicable law or court order, and such disclosure will not result in any liability hereunder.\n8. The Recipient acknowledges that any violation of this Agreement may have a material adverse effect upon, and result in irreparable\ndamage to, the Company and that, in the event of any such violation, without limiting any other available remedies, the Company shall be\nentitled to seek an injunction and other equitable relief, without the need for proving actual damages or the posting of a bond. No failure or delay\nby either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise or any right, power or privilege.\n9. The Recipient certifies that none of the Company’s Confidential Information, or any portion thereof, will be exported to any country in\nviolation of any applicable export control laws or regulations.\n10. From time to time during the term of this Agreement, the Company may disclose information related to future products, features or\nenhancements in order to support and obtain feedback for the Company’s vision and strategy for development efforts and plans (“Product\nRoadmap”). Development efforts and plans are subject to change at any time, without notice. The Company provides no assurances that the\nCompany will introduce future products, features or enhancements described in a presentation containing Product Roadmap information, and the\nCompany assumes no responsibility to introduce such products, features or enhancements.\n11. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and may only be amended\nby a writing signed by both parties. Either party may terminate this Agreement upon sixty (60) days written notice to the other party.\nNotwithstanding the foregoing, the obligations of the parties contained in this Agreement shall survive indefinitely and continue beyond the\ntermination of this Agreement. If any provision of this Agreement is found invalid or unenforceable under any applicable law, such invalidity or\nunenforceability shall not affect the validity or enforceability of the remaining portions of this Agreement. This Agreement will be governed by\nand construed in accordance with the laws of the Commonwealth of Massachusetts without regard to its rules regarding conflicts of law. The\nparties irrevocably submit to the exclusive jurisdiction of the courts of the Commonwealth of Massachusetts. The language of this Agreement\nshall be construed as a whole, according to its fair meaning, not strictly for or against either party, with no regard whatsoever to the status of any\nperson who drafted all or any portion of this Agreement. This Agreement may be executed in counterparts, each of which shall be deemed an\noriginal but all of which taken together shall be deemed to constitute one and the same instrument. This Agreement may not be assigned by\neither party.\n12. Notwithstanding any provision to the contrary, Recipient agrees to comply with all applicable laws with regard to its receipt, processing\nand holding of Discloser information, including without limitation employee information, and compliance with privacy laws.\nCOMPANY: SONUS NETWORKS, INC.\nBy: /s/ Matthew Thaler\nName: Matthew Thaler\nTitle:  General Counsel\nDate:  October 31, 2017\nJEFFREY M. SNIDER\nBy: /s/ Jeffrey M. Snider\nName: Jeffrey M. Snider\nDate:  October 31, 2017\n	EX-10.1 2 a17-24905_1ex10d1.htm EX-10.1\nExhibit 10.1\nOctober 31, 2017\nPERSONAL AND CONFIDENTIAL\nJeffrey M. Snider\nBy email\nDear Jeff:\nThis consulting agreement ("Agreement") is effective as of January 1, 2018 ("Effective Date"), by and between Sonus Networks, Inc.,\nits successors and assigns (collectively, "Sonus"), and Jeffrey M. Snider ("Consultant"). Sonus and Consultant hereby agree to the following:\n1. Title, Term, and Termination. Sonus will retain Consultant as "Senior Consultant," and Consultant will accept such retention,\ncommencing as of the Effective Date of this Agreement and terminating on September 30, 2018. This Agreement may be terminated by\nConsultant for any reason or no reason upon thirty (30) days written notice to Sonus. Sonus may terminate this Agreement only for cause.\n2. Compensation. Consultant shall be paid $20,000 per month during the term of this Agreement, as compensation for all services\nrendered. Consultant shall have the responsibility for the payment of all federal, state and local taxes for any compensation payable to\nConsultant hereunder; provided, however, to the extent required by law, the Company may withhold from compensation payable to Consultant\nall applicable federal, state and local withholding taxes.\n3. Independent Contractor. The parties agree that Consultant is an independent contractor, and no other relationship, status, or legal\norganization shall be implied or created by this Agreement. Consultant shall have no power or authority to bind the Company or act on behalf of\nthe Company in any manner.\n4. Confidential Information. The terms of the Non-Disclosure Agreement ("NDA") between the Company and the Consultant of even\ndate herewith in the form attached hereto is hereby incorporated by reference. The terms of the Confidentiality, Non-Competition and\nAssignment of Inventions Agreement, earlier signed by Consultant as a full-time employee, shall survive the signature of the NDA.\n5. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of\nMassachusetts, without regard to its choice of law principles, and the parties agree that all disputes will be submitted to courts in Massachusetts.\nSonus Networks, Inc.\nJeffrey M. Snider\n/s/ Raymond Dolan\n/s/ Jeffrey M. Snider\nSigned:\nSigned: Jeffrey M. Snider\nDate: October 31, 2017\nDate: October 31, 2017\nNon-Disclosure Agreement\nThis NON-DISCLOSURE AGREEMENT ("Agreement"), effective as of the date of execution by both parties (the "Effective Date"), is\nbetween Sonus Networks, Inc. including its subsidiaries and affiliates, successors and assigns, with offices located at 4 Technology Park Drive,\nWestford, Massachusetts 01886 (the "Company") and Jeffrey M. Snider (the "Recipient"). The Company would like the Recipient to provide\nservices ("Services") as a contractor or consultant to the Company and, to further these ends, the Company may disclose Confidential\nInformation (as defined below) to the Recipient to assist the Recipient in performing such Services. This Agreement covers information that has\nbeen previously disclosed by the Company and information that will be disclosed by the Company on or after the Effective Date.\n1.\n"Confidential Information" shall mean all commercially valuable, proprietary and confidential information and trade secrets with\nrespect to the Company's business and products, whether of a technical, business or other nature (including, without limitation, know-how and\ninformation relating to the technology, customers, business plans, promotional and marketing activities, finances and other business affairs of\nCompany), that has been or is disclosed to Recipient or is otherwise learned by Recipient in the course of its discussions or business dealings\nwith, or its physical or electronic access to the premises of, the Company, and that has been identified as being proprietary and/or confidential or\nthat by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as proprietary and confidential.\n2.\nThe Recipient agrees that all Confidential Information of the Company shall (a) remain the secret and confidential property of\nCompany, which the Recipient will hold and protect in secrecy and confidence using all reasonable precautions including, but not limited to,\nusing precautions no less stringent than those employed by the Recipient to protect its own Confidential Information but in no event less than a\nreasonable degree of care; (b) not be used for any purpose other than evaluation and/or provision of the Services; (c) not be disclosed to any\nperson other than those employees or consultants of the Recipient who have a need to know the Confidential Information to perform the Services\n(and the Recipient shall be responsible for any breach of this Agreement by any of them); and (d) not be recorded or copied except to the extent\nspecifically authorized by the Company in writing. In addition, without prior written consent of the Company, the Recipient will not disclose the\nfact that the Services are being contemplated by or provided to the Company.\n3.\nThe restrictions set forth above shall not apply to information that the Recipient can establish (a) is now or subsequently becomes\nin\nthe public domain; (b) is lawfully received by the Recipient from a third party not bound in a confidential relationship to the Company; (c) was\nalready in the Recipient's possession at the time such information was disclosed by the Company to the Recipient; or (d) was independently\ndeveloped by the Recipient without use of the information disclosed under this Agreement. If a portion or aspect of the Confidential Information\nbecomes generally known, only that portion or aspect shall not be governed by this Agreement and all other aspects of the Confidential\nInformation shall remain subject to the provisions of this Agreement.\n4.\nThe Recipient shall destroy or return to the Company, at the Company's request, all Confidential Information (including, without\nlimitation, any copies, extracts or other reproductions in whole or in part of such Confidential Information) within ten (10) days of any such\nrequest by the Company and the individual or officer of the Recipient supervising such destruction shall certify in writing to the Company that\nsuch destruction occurred. Any oral Confidential Information shall be kept confidential subject to this Agreement.\n5.\nThe Recipient agrees not to decompile, reverse engineer or disassemble any portion of the Company's products.\n6.\nAll information is provided "as is" and without any warranty, express, implied or otherwise, regarding its accuracy or performance.\n7.\nIf a Recipient becomes compelled by law or court order to disclose Confidential Information of the Company, the Recipient will\nprovide the Company with prompt notice of such requirement so the Company may seek a protective order or other appropriate remedy. If such\nprotective order or other remedy is not obtained, the Recipient agrees to furnish only that portion of the Confidential Information that it is\nadvised by legal counsel is required by applicable law or court order, and such disclosure will not result in any liability hereunder.\n8.\nThe Recipient acknowledges that any violation of this Agreement may have a material adverse effect upon, and result in irreparable\ndamage to, the Company and that, in the event of any such violation, without limiting any other available remedies, the Company shall be\nentitled to seek an injunction and other equitable relief, without the need for proving actual damages or the posting of a bond. No failure or delay\nby either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise or any right, power or privilege.\n9.\nThe Recipient certifies that none of the Company's Confidential Information, or any portion thereof, will be exported to any country in\nviolation of any applicable export control laws or regulations.\n10.\nFrom time to time during the term of this Agreement, the Company may disclose information related to future products, features or\nenhancements in order to support and obtain feedback for the Company's vision and strategy for development efforts and plans ("Product\nRoadmap"). Development efforts and plans are subject to change at any time, without notice. The Company provides no assurances that the\nCompany will introduce future products, features or enhancements described in a presentation containing Product Roadmap information, and the\nCompany assumes no responsibility to introduce such products, features or enhancements.\n11.\nThis Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and may only be amended\nby a writing signed by both parties. Either party may terminate this Agreement upon sixty (60) days written notice to the other party.\nNotwithstanding the foregoing, the obligations of the parties contained in this Agreement shall survive indefinitely and continue beyond the\ntermination of this Agreement. If any provision of this Agreement is found invalid or unenforceable under any applicable law, such invalidity\nor\nunenforceability shall not affect the validity or enforceability of the remaining portions of this Agreement. This Agreement will be governed\nby\nand construed in accordance with the laws of the Commonwealth of Massachusetts without regard to its rules regarding conflicts of law. The\nparties irrevocably submit to the exclusive jurisdiction of the courts of the Commonwealth of Massachusetts. The language of this Agreement\nshall\nbe\nconstrued\nas\na\nwhole,\naccording\nto\nits\nfair\nmeaning,\nnot\nstrictly\nfor\nor\nagainst\neither\nparty,\nwith\nno\nregard\nwhatsoever\nto\nthe\nstatus\nof\nany\nperson who drafted all or any portion of this Agreement. This Agreement may be executed in counterparts, each of which shall be deemed\nan\noriginal but all of which taken together shall be deemed to constitute one and the same instrument. This Agreement may not be assigned by\neither party.\n12.\nNotwithstanding any provision to the contrary, Recipient agrees to comply with all applicable laws with regard to its receipt, processing\nand holding of Discloser information, including without limitation employee information, and compliance with privacy laws.\nCOMPANY: SONUS NETWORKS, INC.\nBy:\n/s/ Matthew Thaler\nName: Matthew Thaler\nTitle:\nGeneral Counsel\nDate:\nOctober 31, 2017\nJEFFREY M. SNIDER\nBy:\n/s/ Jeffrey M. Snider\nName: Jeffrey M. Snider\nDate: October 31, 2017	EX-10.1 2 a17-24905_1ex10d1.htm EX-10.1\nExhibit 10.1\nOctober 31, 2017\nPERSONAL AND CONFIDENTIAL\nJeffrey M. Snider\nBy email\nDear Jeff:\nThis consulting agreement (“Agreement”) is effective as of January 1, 2018 (“Effective Date”), by and between Sonus Networks, Inc.,\nits successors and assigns (collectively, “Sonus”), and Jeffrey M. Snider (“Consultant”). Sonus and Consultant hereby agree to the following:\n1. Title, Term, and Termination. Sonus will retain Consultant as “Senior Consultant,” and Consultant will accept such retention,\ncommencing as of the Effective Date of this Agreement and terminating on September 30, 2018. This Agreement may be terminated by\nConsultant for any reason or no reason upon thirty (30) days written notice to Sonus. Sonus may terminate this Agreement only for cause.\n2. Compensation. Consultant shall be paid $20,000 per month during the term of this Agreement, as compensation for all services\nrendered. Consultant shall have the responsibility for the payment of all federal, state and local taxes for any compensation payable to\nConsultant hereunder; provided, however, to the extent required by law, the Company may withhold from compensation payable to Consultant\nall applicable federal, state and local withholding taxes.\n3. Independent Contractor. The parties agree that Consultant is an independent contractor, and no other relationship, status, or legal\norganization shall be implied or created by this Agreement. Consultant shall have no power or authority to bind the Company or act on behalf of\nthe Company in any manner.\n4. Confidential Information. The terms of the Non-Disclosure Agreement (“NDA”) between the Company and the Consultant of even\ndate herewith in the form attached hereto is hereby incorporated by reference. The terms of the Confidentiality, Non-Competition and\nAssignment of Inventions Agreement, earlier signed by Consultant as a full-time employee, shall survive the signature of the NDA.\n5. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of\nMassachusetts, without regard to its choice of law principles, and the parties agree that all disputes will be submitted to courts in Massachusetts.\n*\n*\n*\nSonus Networks, Inc.\nJeffrey M. Snider\n/s/ Raymond Dolan\n/s/ Jeffrey M. Snider\nSigned:\nSigned: Jeffrey M. Snider\nDate: October 31, 2017\nDate: October 31, 2017\nNon-Disclosure Agreement\nThis NON-DISCLOSURE AGREEMENT (“Agreement”), effective as of the date of execution by both parties (the “Effective Date”), is\nbetween Sonus Networks, Inc. including its subsidiaries and affiliates, successors and assigns, with offices located at 4 Technology Park Drive,\nWestford, Massachusetts 01886 (the “Company”) and Jeffrey M. Snider (the “Recipient”). The Company would like the Recipient to provide\nservices (“Services”) as a contractor or consultant to the Company and, to further these ends, the Company may disclose Confidential\nInformation (as defined below) to the Recipient to assist the Recipient in performing such Services. This Agreement covers information that has\nbeen previously disclosed by the Company and information that will be disclosed by the Company on or after the Effective Date.\n1.\n“Confidential Information” shall mean all commercially valuable, proprietary and confidential information and trade secrets with\nrespect to the Company’s business and products, whether of a technical, business or other nature (including, without limitation, know-how and\ninformation relating to the technology, customers, business plans, promotional and marketing activities, finances and other business affairs of\nCompany), that has been or is disclosed to Recipient or is otherwise learned by Recipient in the course of its discussions or business dealings\nwith, or its physical or electronic access to the premises of, the Company, and that has been identified as being proprietary and/or confidential or\nthat by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as proprietary and confidential.\n2.\nThe Recipient agrees that all Confidential Information of the Company shall (a) remain the secret and confidential property of\nCompany, which the Recipient will hold and protect in secrecy and confidence using all reasonable precautions including, but not limited to,\nusing precautions no less stringent than those employed by the Recipient to protect its own Confidential Information but in no event less than a\nreasonable degree of care; (b) not be used for any purpose other than evaluation and/or provision of the Services; (c) not be disclosed to any\nperson other than those employees or consultants of the Recipient who have a need to know the Confidential Information to perform the Services\n(and the Recipient shall be responsible for any breach of this Agreement by any of them); and (d) not be recorded or copied except to the extent\nspecifically authorized by the Company in writing. In addition, without prior written consent of the Company, the Recipient will not disclose the\nfact that the Services are being contemplated by or provided to the Company.\n3.\nThe restrictions set forth above shall not apply to information that the Recipient can establish (a) is now or subsequently becomes in\nthe public domain; (b) is lawfully received by the Recipient from a third party not bound in a confidential relationship to the Company; (c) was\nalready in the Recipient’s possession at the time such information was disclosed by the Company to the Recipient; or (d) was independently\ndeveloped by the Recipient without use of the information disclosed under this Agreement. If a portion or aspect of the Confidential Information\nbecomes generally known, only that portion or aspect shall not be governed by this Agreement and all other aspects of the Confidential\nInformation shall remain subject to the provisions of this Agreement.\n4.\nThe Recipient shall destroy or return to the Company, at the Company’s request, all Confidential Information (including, without\nlimitation, any copies, extracts or other reproductions in whole or in part of such Confidential Information) within ten (10) days of any such\nrequest by the Company and the individual or officer of the Recipient supervising such destruction shall certify in writing to the Company that\nsuch destruction occurred. Any oral Confidential Information shall be kept confidential subject to this Agreement.\n5.\nThe Recipient agrees not to decompile, reverse engineer or disassemble any portion of the Company’s products.\n6.\nAll information is provided “as is” and without any warranty, express, implied or otherwise, regarding its accuracy or performance.\n7.\nIf a Recipient becomes compelled by law or court order to disclose Confidential Information of the Company, the Recipient will\nprovide the Company with prompt notice of such requirement so the Company may seek a protective order or other appropriate remedy. If such\nprotective order or other remedy is not obtained, the Recipient agrees to furnish only that portion of the Confidential Information that it is\nadvised by legal counsel is required by applicable law or court order, and such disclosure will not result in any liability hereunder.\n8.\nThe Recipient acknowledges that any violation of this Agreement may have a material adverse effect upon, and result in irreparable\ndamage to, the Company and that, in the event of any such violation, without limiting any other available remedies, the Company shall be\nentitled to seek an injunction and other equitable relief, without the need for proving actual damages or the posting of a bond. No failure or delay\nby either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise or any right, power or privilege.\n9.\nThe Recipient certifies that none of the Company’s Confidential Information, or any portion thereof, will be exported to any country in\nviolation of any applicable export control laws or regulations.\n10.\nFrom time to time during the term of this Agreement, the Company may disclose information related to future products, features or\nenhancements in order to support and obtain feedback for the Company’s vision and strategy for development efforts and plans (“Product\nRoadmap”). Development efforts and plans are subject to change at any time, without notice. The Company provides no assurances that the\nCompany will introduce future products, features or enhancements described in a presentation containing Product Roadmap information, and the\nCompany assumes no responsibility to introduce such products, features or enhancements.\n11.\nThis Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and may only be amended\nby a writing signed by both parties. Either party may terminate this Agreement upon sixty (60) days written notice to the other party.\nNotwithstanding the foregoing, the obligations of the parties contained in this Agreement shall survive indefinitely and continue beyond the\ntermination of this Agreement. If any provision of this Agreement is found invalid or unenforceable under any applicable law, such invalidity or\nunenforceability shall not affect the validity or enforceability of the remaining portions of this Agreement. This Agreement will be governed by\nand construed in accordance with the laws of the Commonwealth of Massachusetts without regard to its rules regarding conflicts of law. The\nparties irrevocably submit to the exclusive jurisdiction of the courts of the Commonwealth of Massachusetts. The language of this Agreement\nshall be construed as a whole, according to its fair meaning, not strictly for or against either party, with no regard whatsoever to the status of any\nperson who drafted all or any portion of this Agreement. This Agreement may be executed in counterparts, each of which shall be deemed an\noriginal but all of which taken together shall be deemed to constitute one and the same instrument. This Agreement may not be assigned by\neither party.\n12.\nNotwithstanding any provision to the contrary, Recipient agrees to comply with all applicable laws with regard to its receipt, processing\nand holding of Discloser information, including without limitation employee information, and compliance with privacy laws.\nCOMPANY: SONUS NETWORKS, INC.\nBy:\n/s/ Matthew Thaler\nName: Matthew Thaler\nTitle: General Counsel\nDate: October 31, 2017\nJEFFREY M. SNIDER\nBy:\n/s/ Jeffrey M. Snider\nName: Jeffrey M. Snider\nDate: October 31, 2017
64303e5aa502b04df2755968eecdc2f5.pdf	effective_date jurisdiction party term	EXHIBIT B\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this “Agreement”), is made and entered into as of the date on which it is fully executed,\nas indicated by signatures below, by and among Naugatuck Valley Financial Corporation (the “Company”), the Stilwell Group (composed of\nStilwell Value Partners II, L.P., Stilwell Value Partners VII, L.P., Stilwell Partners, L.P., Stilwell Value LLC, Stilwell Activist Fund, L.P., Stilwell\nActivist Investments, L.P., and Joseph Stilwell, an individual, and their employees and representatives), and ______________, a director whose\nname was placed in nomination by the Stilwell Group (“Director”).\nWHEREAS, the Director is a member of the Board of Directors of the Company and its wholly owned subsidiary, Naugatuck Valley\nSavings and Loan (the “Bank”);\nWHEREAS, the Company, the Stilwell Group and the Director have agreed that it is in their mutual interests to enter into this\nAgreement as hereinafter described.\nNOW THEREFORE, for good and valuable consideration, and intending to be legally bound hereby, the parties hereto mutually agree\nas follows:\n1. In connection with the Director serving on the Boards of Directors of the Company and the Bank, the Director and other Company\nemployees, directors, and agents may divulge nonpublic information concerning the Company and its subsidiaries to the Stilwell Group and such\ninformation may be shared among the Stilwell Group's employees and agents who have a need to know such information. The Stilwell Group\nexpressly agrees to maintain all nonpublic information concerning the Company and its subsidiaries in confidence. The Stilwell Group expressly\nacknowledges that federal and state securities laws may prohibit a person from purchasing or selling securities of a company, or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such other person is likely to\npurchase or sell such securities, while the first-mentioned person is in possession of material nonpublic information about such company. The\nStilwell Group agrees to comply with the Company's insider trading policies and procedures, as in effect from time to time, to the same extent as\nif it were a director of the Company. To the extent the nonpublic information concerning the Company and its subsidiaries received by the\nStilwell Group is material, this Agreement is intended to satisfy the confidentiality agreement exclusion of Regulation FD of the U.S. Securities\nand Exchange Commission (the “SEC”) set forth in Rule 100(b)(2)(ii) of Regulation FD of the SEC.\n2. Each of the Stilwell Group and the Director represents and warrants to the Company that this Agreement has been duly and validly\nauthorized (in the case of the entity members of the Stilwell Group), executed and delivered by them, and is a valid and binding agreement\nenforceable against them in accordance with its terms.\n3. The Director hereby further confirms to the Company that no event has occurred with respect to the Director that would require\ndisclosure in a document filed by the Company with the SEC pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act\nof 1934, as amended, under Item 401(f) or Item 404(a) of SEC Regulation S-K.\n4. The Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic information of the\nCompany and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this Agreement and that,\nin addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable relief as a remedy\nfor such breach, and agrees that in conjunction therewith the Company shall not be required to post any bond.\n5. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all\nprior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not referred to\nherein.\n6. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Connecticut, without regard to\nchoice of law principles that may otherwise compel the application of the laws of any other jurisdiction. Each of the parties hereby irrevocably\nconsents to the exclusive jurisdiction of the state and federal courts sitting in the State of Connecticut to resolve any dispute arising from this\nAgreement and waives any defense of inconvenient or improper forum.\n7. The terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or portion\nthereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties.\n8. All representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this Agreement.\n9. This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written\nagreement executed by all of the parties hereto.\n10. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one\nand the same agreement.\n14\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned as of\nthe day and year first above written.\nTHE STILWELL GROUP\nNAUGATUCK VALLEY FINANCIAL CORPORATION\n_________________________\n_______________________________\nBy:\nDate:\nJoseph Stilwell\n__________\n__, 2014\nBy:\nDate:\nWilliam C. Calderara, President and\nChief Executive Officer\n___________\n__, 2014\nDIRECTOR\nDate: ___________ __, 2014\n15	EXHIBIT B\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this “Agreement”), is made and entered into as of the date on which it is fully executed,\nas indicated by signatures below, by and among Naugatuck Valley Financial Corporation (the “Company”), the Stilwell Group (composed of\nStilwell Value Partners II, L.P., Stilwell Value Partners VII, L.P., Stilwell Partners, L.P., Stilwell Value LLC, Stilwell Activist Fund, L.P., Stilwell\nActivist Investments, L.P., and Joseph Stilwell, an individual, and their employees and representatives), and , a director whose\nname was placed in nomination by the Stilwell Group (“Director”).\nWHEREAS, the Director is a member of the Board of Directors of the Company and its wholly owned subsidiary, Naugatuck Valley\nSavings and Loan (the “Bank™);\nWHEREAS, the Company, the Stilwell Group and the Director have agreed that it is in their mutual interests to enter into this\nAgreement as hereinafter described.\nNOW THEREFORE, for good and valuable consideration, and intending to be legally bound hereby, the parties hereto mutually agree\nas follows:\n1. In connection with the Director serving on the Boards of Directors of the Company and the Bank, the Director and other Company\nemployees, directors, and agents may divulge nonpublic information concerning the Company and its subsidiaries to the Stilwell Group and such\ninformation may be shared among the Stilwell Group's employees and agents who have a need to know such information. The Stilwell Group\nexpressly agrees to maintain all nonpublic information concerning the Company and its subsidiaries in confidence. The Stilwell Group expressly\nacknowledges that federal and state securities laws may prohibit a person from purchasing or selling securities of a company, or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such other person is likely to\npurchase or sell such securities, while the first-mentioned person is in possession of material nonpublic information about such company. The\nStilwell Group agrees to comply with the Company's insider trading policies and procedures, as in effect from time to time, to the same extent as\nif it were a director of the Company. To the extent the nonpublic information concerning the Company and its subsidiaries received by the\nStilwell Group is material, this Agreement is intended to satisfy the confidentiality agreement exclusion of Regulation FD of the U.S. Securities\nand Exchange Commission (the “SEC”) set forth in Rule 100(b)(2)(ii) of Regulation FD of the SEC.\n2. Each of the Stilwell Group and the Director represents and warrants to the Company that this Agreement has been duly and validly\nauthorized (in the case of the entity members of the Stilwell Group), executed and delivered by them, and is a valid and binding agreement\nenforceable against them in accordance with its terms.\n3. The Director hereby further confirms to the Company that no event has occurred with respect to the Director that would require\ndisclosure in a document filed by the Company with the SEC pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act\nof 1934, as amended, under Item 401(f) or Item 404(a) of SEC Regulation S-K.\n4. The Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic information of the\nCompany and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this Agreement and that,\nin addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable relief as a remedy\nfor such breach, and agrees that in conjunction therewith the Company shall not be required to post any bond.\n5. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all\nprior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not referred to\nherein.\n6. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Connecticut, without regard to\nchoice of law principles that may otherwise compel the application of the laws of any other jurisdiction. Each of the parties hereby irrevocably\nconsents to the exclusive jurisdiction of the state and federal courts sitting in the State of Connecticut to resolve any dispute arising from this\nAgreement and waives any defense of inconvenient or improper forum.\n7. The terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or portion\nthereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties.\n8. All representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this Agreement.\n9. This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written\nagreement executed by all of the parties hereto.\n10. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one\nand the same agreement.\n14\nIN WITNESS WHEREQOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned as of\nthe day and year first above written.\n \n \nTHE STILWELL GROUP NAUGATUCK VALLEY FINANCIAL CORPORATION\nBy: Joseph Stilwell By: William C. Calderara, President and\nDate: _,2014 Chief Executive Officer\nDate: _,2014\nDIRECTOR\nDate: _,2014\n15	EXHIBIT B\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this "Agreement"), is made and entered into as of the date on which it is fully executed,\nas indicated by signatures below, by and among Naugatuck Valley Financial Corporation (the "Company"), the Stilwell Group (composed of\nStilwell Value Partners II, L.P., Stilwell Value Partners VII, L.P., Stilwell Partners, L.P., Stilwell Value LLC, Stilwell Activist Fund, L.P., Stilwell\nActivist Investments, L.P., and Joseph Stilwell, an individual, and their employees and representatives), and\na director whose\nname was placed in nomination by the Stilwell Group ("Director").\nWHEREAS, the Director is a member of the Board of Directors of the Company and its wholly owned subsidiary, Naugatuck Valley\nSavings and Loan (the "Bank");\nWHEREAS, the Company, the Stilwell Group and the Director have agreed that it is in their mutual interests to enter into this\nAgreement as hereinafter described.\nNOW THEREFORE, for good and valuable consideration, and intending to be legally bound hereby, the parties hereto mutually agree\nas follows:\n1. In connection with the Director serving on the Boards of Directors of the Company and the Bank, the Director and other Company\nemployees,\ndirectors,\nand\nagents\nmay\ndivulge\nnonpublic\ninformation\nconcerning\nthe\nCompany\nand\nits\nsubsidiaries\nto\nthe\nStilwell\nGroup\nand\nsuch\ninformation may be shared among the Stilwell Group's employees and agents who have a need to know such information. The Stilwell Group\nexpressly agrees to maintain all nonpublic information concerning the Company and its subsidiaries in confidence. The Stilwell Group expressly\nacknowledges that federal and state securities laws may prohibit a person from purchasing or selling securities of a company, or\nfrom\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such other person is likely to\npurchase or sell such securities, while the first-mentioned person is in possession of material nonpublic information about such company. The\nStilwell\nGroup\nagrees\nto\ncomply\nwith\nthe\nCompany's\ninsider\ntrading\npolicies\nand\nprocedures,\nas\nin\neffect\nfrom\ntime\nto\ntime,\nto\nthe\nsame\nextent\nas\nif it were a director of the Company. To the extent the nonpublic information concerning the Company and its subsidiaries received by the\nStilwell Group is material, this Agreement is intended to satisfy the confidentiality agreement exclusion of Regulation FD of the U.S. Securities\nand Exchange Commission (the "SEC") set forth in Rule 100(b)(2)(ii) of Regulation FD of the SEC.\n2. Each of the Stilwell Group and the Director represents and warrants to the Company that this Agreement has been duly and validly\nauthorized (in the case of the entity members of the Stilwell Group), executed and delivered by them, and is a valid and binding agreement\nenforceable against them in accordance with its terms.\n3. The Director hereby further confirms to the Company that no event has occurred with respect to the Director that would require\ndisclosure in a document filed by the Company with the SEC pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act\nof 1934, as amended, under Item 401(f) or Item 404(a) of SEC Regulation S-K.\n4. The Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic information of the\nCompany and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this Agreement and that,\nin addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable relief as a remedy\nfor\nsuch breach, and agrees that in conjunction therewith the Company shall not be required to post any bond.\n5. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all\nprior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not referred to\nherein.\n6. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Connecticut, without regard to\nchoice\nof\nlaw\nprinciples\nthat\nmay\notherwise\ncompel\nthe\napplication\nof\nthe\nlaws\nof\nany\nother\njurisdiction.\nEach\nof\nthe\nparties\nhereby\nirrevocably\nconsents to the exclusive jurisdiction of the state and federal courts sitting in the State of Connecticut to resolve any dispute arising from this\nAgreement and waives any defense of inconvenient or improper forum.\n7. The terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or portion\nthereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties.\n8. All representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this Agreement.\n9.\nThis Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written\nagreement executed by all of the parties hereto.\n10. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one\nand the same agreement.\nah\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned as of\nthe day and year first above written.\nTHE STILWELL GROUP\nNAUGATUCK VALLEY FINANCIAL CORPORATION\nBy:\nJoseph Stilwell\nBy:\nWilliam C. Calderara, President and\nDate:\n, 2014\nChief Executive Officer\nDate:\nL> 2014\nDIRECTOR\nDate:\n) 2014\n15	EXHIBIT B\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this “Agreement”), is made and entered into as of the date on which it is fully executed,\nas indicated by signatures below, by and among Naugatuck Valley Financial Corporation (the “Company”), the Stilwell Group (composed of\nStilwell Value Partners II, L.P., Stilwell Value Partners VII, L.P., Stilwell Partners, L.P., Stilwell Value LLC, Stilwell Activist Fund, L.P., Stilwell\nActivist Investments, L.P., and Joseph Stilwell, an individual, and their employees and representatives), and ______________, a director whose\nname was placed in nomination by the Stilwell Group (“Director”).\nWHEREAS, the Director is a member of the Board of Directors of the Company and its wholly owned subsidiary, Naugatuck Valley\nSavings and Loan (the “Bank”);\nWHEREAS, the Company, the Stilwell Group and the Director have agreed that it is in their mutual interests to enter into this\nAgreement as hereinafter described.\nNOW THEREFORE, for good and valuable consideration, and intending to be legally bound hereby, the parties hereto mutually agree\nas follows:\n1. In connection with the Director serving on the Boards of Directors of the Company and the Bank, the Director and other Company\nemployees, directors, and agents may divulge nonpublic information concerning the Company and its subsidiaries to the Stilwell Group and such\ninformation may be shared among the Stilwell Group's employees and agents who have a need to know such information. The Stilwell Group\nexpressly agrees to maintain all nonpublic information concerning the Company and its subsidiaries in confidence. The Stilwell Group expressly\nacknowledges that federal and state securities laws may prohibit a person from purchasing or selling securities of a company, or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such other person is likely to\npurchase or sell such securities, while the first-mentioned person is in possession of material nonpublic information about such company. The\nStilwell Group agrees to comply with the Company's insider trading policies and procedures, as in effect from time to time, to the same extent as\nif it were a director of the Company. To the extent the nonpublic information concerning the Company and its subsidiaries received by the\nStilwell Group is material, this Agreement is intended to satisfy the confidentiality agreement exclusion of Regulation FD of the U.S. Securities\nand Exchange Commission (the “SEC”) set forth in Rule 100(b)(2)(ii) of Regulation FD of the SEC.\n2. Each of the Stilwell Group and the Director represents and warrants to the Company that this Agreement has been duly and validly\nauthorized (in the case of the entity members of the Stilwell Group), executed and delivered by them, and is a valid and binding agreement\nenforceable against them in accordance with its terms.\n3. The Director hereby further confirms to the Company that no event has occurred with respect to the Director that would require\ndisclosure in a document filed by the Company with the SEC pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act\nof 1934, as amended, under Item 401(f) or Item 404(a) of SEC Regulation S-K.\n4. The Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic information of the\nCompany and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this Agreement and that,\nin addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable relief as a remedy\nfor such breach, and agrees that in conjunction therewith the Company shall not be required to post any bond.\n5. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all\nprior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not referred to\nherein.\n6. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Connecticut, without regard to\nchoice of law principles that may otherwise compel the application of the laws of any other jurisdiction. Each of the parties hereby irrevocably\nconsents to the exclusive jurisdiction of the state and federal courts sitting in the State of Connecticut to resolve any dispute arising from this\nAgreement and waives any defense of inconvenient or improper forum.\n7. The terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or portion\nthereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties.\n8. All representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this Agreement.\n9. This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written\nagreement executed by all of the parties hereto.\n10. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one\nand the same agreement.\n14\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned as of\nthe day and year first above written.\nTHE STILWELL GROUP\nNAUGATUCK VALLEY FINANCIAL CORPORATION\n_________________________\n_______________________________\nBy:\nDate:\nJoseph Stilwell\n__________\n__, 2014\nBy:\nDate:\nWilliam C. Calderara, President and\nChief Executive Officer\n___________\n__, 2014\nDIRECTOR\nDate: ___________ __, 2014\n15
6551a0da78ee55db14d5a49e9e25120a.pdf	effective_date jurisdiction party term	EX-99.(E)(6) 2 dex99e6.htm CONFIDENTIALITY AGREEMENT\nEXHIBIT (e)(6)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY A GREEMENT (this “Agreement”) is being entered into as of May 11, 2006, between BIOSITE INCORPORATED\n(“Biosite”), on the one hand, and BECKMAN COULTER, INC. (together with its subsidiaries and affiliates, “Beckman Coulter”), on the other hand.\nIn order to facilitate the consideration and negotiation of a possible strategic transaction involving Biosite and Beckman Coulter (referred to\ncollectively as the “Parties” and individually as a “Party”) separate from the ongoing business relationship between the Parties, each Party has\nrequested access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a\nprovider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to\nin this Agreement as the “Recipient.”) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and\nregarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Definitions. For purposes of this Agreement:\n(a) a Party’s “Representatives” will be deemed to include each Person that is or becomes: (i) a subsidiary or other affiliate of such Party;\nor (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries\nor other affiliates.\n(b) the term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n2. Confidential Information. For purposes of this Agreement, each Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast\nor projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has been made available to the Recipient\nor any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly\nupon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms of any such transaction.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of\nthe Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information\nwas not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person\nwith respect to any of such information; or\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of\nconfidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient or any of the Recipient’s Representatives without reliance\non the information received from Provider or any of the Provider’s Representatives hereunder, as evidenced by written records.\n3. Limitations on Use and Disclosure of Confidential Information. Subject to section 5 below, neither the Recipient nor any of the\nRecipient’s Representatives will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information, except for the specific purpose of considering, evaluating and\nnegotiating a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider’s Confidential Information to any other Person.\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on\nthe part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nactions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential Information.\n4. No Representations by Provider. The Representatives of each Provider will have the exclusive authority to decide what Confidential\nInformation (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of\nthe Provider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the\nRecipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished.\nNeither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or\ncompleteness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the\nRecipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of the Provider’s Confidential Information or any\ninaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive\nwritten agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties\n(a “Definitive Agreement”) will have legal effect.\n5. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in section 3 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient’s disclosure thereof;\n(ii) subject to section 5(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative: (A) needs to know such Confidential Information for the purpose of helping the Recipient\nevaluate or negotiate a possible negotiated transaction between the Parties; and (B) has been informed of the obligations set forth in this Agreement\nand has agreed to abide and be bound by the provisions hereof; and\n(iii) subject to section 5(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by subpoena or other valid legal process.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be\ndisclosed only to specified Representatives of the Recipient, then, notwithstanding anything to the contrary contained in section 5(a)(ii) above, the\nRecipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient.\n(c) If the Recipient or any of the Recipient’s Representatives is required by applicable law or governmental regulation or by subpoena or\nother valid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the\nProvider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy.\nThe Recipient and its Representatives will use reasonable efforts to cooperate with the Provider and the Provider’s Representatives in any attempt by\nthe Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such\nprotective order or other remedy in connection with any requirement that the Recipient disclose\nConfidential Information of the Provider, and if the Recipient has been advised by its internal counsel or other reputable external legal counsel\nconfirming that the disclosure of such Confidential Information is legally required, then the Recipient may disclose such Confidential Information to\nthe extent legally required; provided, however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such\nConfidential Information is treated confidentially by each Person to whom it is disclosed.\n6. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver\nto the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the\nRecipient’s Representatives; provided, however, that, in lieu of delivering to the Provider any written materials of the type described in clause “(b)”\nof the first sentence of section 2 above, the Recipient may destroy such written materials and deliver to the Provider a certificate confirming their\ndestruction. Notwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant\nto this section 6, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement.\n7. Standstill Provision. During the 18-month period commencing on the date of this Agreement (the “Standstill Period”), neither Beckman\nCoulter nor any entity controlling, controlled by or under common control with Beckman Coulter will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Biosite or any securities\nof any subsidiary or other affiliate of Biosite, (ii) any acquisition of any assets of Biosite or any assets of any subsidiary or other affiliate of Biosite,\n(iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary\ntransaction involving Biosite or any subsidiary or other affiliate of Biosite, or involving any securities or assets of Biosite or any securities or assets\nof any subsidiary or other affiliate of Biosite, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and\nExchange Commission) or consents with respect to any securities of Biosite;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Biosite;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Biosite;\n(d) take any action that might require Biosite to make a public announcement regarding any of the types of matters set forth in clause\n“(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”, “(c)”\nor “(d)” of this sentence;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of\nthis sentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Biosite or any of Biosite’s Representatives amend, waive or consider the amendment or waiver of any\nprovision set forth in this section 7.\nIn the event that Biosite enters into a definitive agreement with any other Person or entity involving a merger or sale of the majority of the\noutstanding securities or assets of Biosite to a third party, following Biosite’s announcement of such definitive agreement Beckman Coulter shall be\nreleased from any and all of the restrictions and obligations contained in this paragraph; provided, however, that any such release shall not be\ndeemed a waiver of any prior breach under this paragraph.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.\n8. Limitation on Soliciting Employees. During the 12-month period commencing on the date of this Agreement, Beckman Coulter will not\npermit any of its Representatives or any subsidiary or affiliate thereof who is or becomes aware of the consideration or negotiation of a possible\ntransaction between the Parties to solicit for employment with such Party or any of its subsidiaries or affiliates any Specified Employee (as defined\nbelow) of Biosite; provided, however, that this section 8 will not prevent Beckman Coulter or any of its Representatives or any subsidiary or affiliate\nthereof from: (a) causing to be placed any general advertisement or similar public notice that is not targeted specifically at employees of Biosite or\nits subsidiaries or affiliates; or (b) engaging any recruiting firm or similar organization to identify or solicit persons for employment on behalf of\nBeckman Coulter, or soliciting the employment of any Specified Employee of Biosite or any of its subsidiaries or affiliates who is identified by any\nsuch recruiting firm or organization, as long as such recruiting firm or organization is not instructed to target any employees of Biosite or its\nsubsidiaries or affiliates. For purposes of this section 8, a person shall be deemed to be a “Specified Employee” of Biosite if: (i) such person is\nemployed by Biosite or by any subsidiary or affiliate of Biosite on the date of this Agreement or becomes employed by Biosite or by any subsidiary\nor affiliate of Biosite during the period in which such Party is continuing to negotiate a possible transaction with the other Party; and (ii) such\nperson’s employment shall not have been involuntarily terminated by Biosite or by a subsidiary or affiliate of Biosite.\n9. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems\nappropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process\nwithout giving notice to the other Party or any other Person; (b) to reject any\nproposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving such Party; and (c) to terminate\ndiscussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written\nagreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to\nnegotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims\nagainst the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the\nother Party.\n10. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this\nAgreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future\nexercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or\namended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular\nprovision or provisions being waived or amended.\n11. Remedies. Each Party shall indemnify and hold harmless the other Party and the other Party’s Representatives against and from, and shall\ncompensate and reimburse the other Party and the other Party’s Representatives for, any damage, loss, claim, liability or expense (including legal\nfees and the cost of enforcing the other Party’s rights under this Agreement) arising out of or resulting from any unauthorized use or disclosure of\nany of the other Party’s Confidential Information or any other breach of this Agreement by such Party or any of its Representatives. Each Party\nacknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s\nRepresentatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to\nequitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party\nor any of the other Party’s Representatives. The indemnification and equitable remedies referred to above will not be deemed to be the exclusive\nremedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event of\nlitigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its Representatives has breached this\nAgreement, such Party will be liable for, and will pay to the other Party and the other Party’s Representatives, the reasonable legal fees incurred by\nthe other Party and the other Party’s Representatives in connection with such litigation (including any appeal relating thereto).\n12. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of California (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of California for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth below the name of such Party at the end of this Agreement shall be effective service of\nprocess for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of\nvenue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of California; and\n(d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any\naction, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of California has\nbeen brought in an inconvenient forum.\n13. Miscellaneous.\n(a) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(b) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any\nother situation or in any other jurisdiction.\n(c) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider\nis not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right.\n(d) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of\ninterest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual\ndesire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality\nof any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the\nattorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection\nthereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the\nfullest extent possible, the applicability of all such privileges or doctrines.\n(e) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof. However, for the avoidance of doubt, the\nParties mutually acknowledge and agree that this Agreement shall not modify, amend, terminate or supersede any obligation of either Party under\nany prior agreement to preserve the confidentiality of non-public information of the other Party that is disclosed for\npurposes unrelated to the consideration or negotiation of a strategic transaction involving the parties, including without limitation any obligations\narising out of that certain Confidentiality Agreement effective October 9, 2003, the Mutual Confidential Disclosure Agreement dated as of January 7,\n2003, the Confidentiality Agreement effective October 15, 2002, and the Confidentiality Agreement effective June 14, 2001, the BNP Assay\nDevelopment, Manufacture and Supply Agreement effective June 24, 2003, as amended, and the Stroke Assay Development, Manufacture and\nSupply Agreement dated as of June 24, 2003 (collectively, the “Pre-Existing Agreements”). Any disclosures of non-public information for purposes\nunrelated to the consideration or negotiation of a strategic transaction between the Parties shall continue to be subject to the applicable Pre-Existing\nAgreement in accordance with its terms.\n[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]\nIN WITNESS WHEREOF, the parties have caused this CONFIDENTIALITY AGREEMENT to be executed as of the date first written above.\nBIOSITE INCORPORATED\nBECKMAN COULTER, INC.\nBy: /s/ Kim D. Blickenstaff\nBy: /s/ Arnold A. Pinkston\nName: Kim D. Blickenstaff\nName: Arnold A. Pinkston\nTitle: Chairman & CEO\nTitle: Senior Vice President & General Counsel\nAddress: 9975 Summers Ridge Road\nSan Diego, CA 92121\nAddress: 4300 N. Harbor Blvd.\nFullerton, CA 92835\nLOGO\nJune 2, 2006\nBeckman Coulter, Inc.\n4300 N. Harbor Blvd.\nFullerton, CA 92835\nLadies and Gentlemen:\nReference is made to that certain Confidentiality Agreement entered into as of May 11, 2006 (the “Agreement”), between Biosite Incorporated\n(“Biosite”), on the one hand, and Beckman Coulter, Inc. (together with its subsidiaries and affiliates, “Beckman Coulter”), on the other hand. The\nundersigned agree as follows:\n1. The following sentence shall be added as the second sentence of section 6 of the Agreement:\n“Notwithstanding the foregoing: (a) the Recipient may cause its outside legal counsel to retain one set of the Provider’s Confidential\nInformation for archival purposes, such set to be accessed or used only in order to measure compliance with the terms of this Agreement\nor to defend against any claim, action or proceeding relating to this Agreement; and (b) the financial, legal and accounting advisers to a\nParty shall have the right to retain one set of any Confidential Information for archival purposes to the extent required by any applicable\nlaw, rule or regulation.”\n2. Section 7 of the Agreement is hereby clarified by adding the following language at the end of Section 7:\n“For purposes of clarification, it is understood that this Section 7 shall not restrict: (a) any discussions or negotiations conducted in a\nconfidential manner between the Parties or their respective Representatives with respect to a possible strategic transaction; or (b)\nBeckman Coulter or any of its Representatives from making any confidential proposals to Biosite in connection with such confidential\ndiscussions or negotiations, in any case under clause “(a)” or “(b)” of this sentence until Beckman Coulter is notified by Biosite of the\ntermination of such confidential discussions and negotiations.”\n3. The reference to “with such Party” in the fourth line of Section 8 of the Agreement shall be replaced “with Beckman Coulter.”\n9975 SUMMERS RIDGE ROAD, SAN DIEGO, CA 92121 n 858-455-4808 n WWW.BIOSITE.COM\n4. Except as set forth above, the Agreement shall remain in full force and effect as written.\nSincerely,\nBIOSITE INCORPORATED\nBy:\n/s/ Kim D. Blickenstaff\nAgreed to By:\nBECKMAN COULTER, INC.\nBy:\n/s/ Paul Glyer\nBeckman Coulter, Inc.\n4300 N. Harbor Boulevard, Fullerton, California 92834\nMay 1, 2007\nBiosite Incorporated\n9975 Summers Ridge Road\nSan Diego, CA 92121\nLadies and Gentleman:\nReference is made to that certain Confidentiality Agreement entered into as of May 11, 2006, as amended on June 2, 2006, (the “Agreement”)\nbetween Biosite Incorporated (“Biosite”), on the one hand, and Beckman Coulter, Inc. (together with its subsidiaries and affiliates, “Beckman\nCoulter”), on the other hand. The undersigned agree that the definition of “Standstill Period” shall be changed by amending Section 7 of the\nAgreement to replace the phrase “During the 18-month period commencing on the date of this Agreement” with the following phrase: “During the\nperiod commencing May 11, 2006 and ending March 23, 2007”.\nThis letter agreement is being entered into concurrently with that certain Amendment to the Agreement and Plan of Merger dated as of May 1,\n2007 by and among Beckman Coulter, Biosite and Louisiana Acquisition Sub, Inc.\n[Signature page follows]\n[signature page to Amendment to Confidentiality Agreement]\nSincerely,\nBECKMAN COULTER, INC.\nBy:\n/s/ Scott Garrett\nScott Garrett\nPresident and Chief Executive Officer\nAgreed to and accepted:\nBIOSITE INCORPORATED\nBy:\n/s/ Kim D. Blickenstaff\nKim D. Blickenstaff\nChairman and Chief Executive Officer	EX-99.(E)(6) 2 dex99e6.htm CONFIDENTIALITY AGREEMENT\nEXHIBIT (e)(6)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (this “Agreement”) is being entered into as of May 11, 2006, between BIOSITE INCORPORATED\n(“Biosite”), on the one hand, and BECKMAN COULTER, INC. (together with its subsidiaries and affiliates, “Beckman Coulter”), on the other hand.\nIn order to facilitate the consideration and negotiation of a possible strategic transaction involving Biosite and Beckman Coulter (referred to\ncollectively as the “Parties” and individually as a “Party”) separate from the ongoing business relationship between the Parties, each Party has\nrequested access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a\nprovider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to\nin this Agreement as the “Recipient.”) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and\nregarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Definitions. For purposes of this Agreement:\n(a) a Party’s “Representatives” will be deemed to include each Person that is or becomes: (i) a subsidiary or other affiliate of such Party;\nor (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries\nor other affiliates.\n(b) the term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n2. Confidential Information. For purposes of this Agreement, each Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast\nor projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has been made available to the Recipient\nor any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly\nupon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms of any such transaction.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of\nthe Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information\nwas not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person\nwith respect to any of such information; or\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of\nconfidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient or any of the Recipient’s Representatives without reliance\non the information received from Provider or any of the Provider’s Representatives hereunder, as evidenced by written records.\n3. Limitations on Use and Disclosure of Confidential Information. Subject to section 5 below, neither the Recipient nor any of the\nRecipient’s Representatives will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information, except for the specific purpose of considering, evaluating and\nnegotiating a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider’s Confidential Information to any other Person.\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on\nthe part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nactions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential Information.\n4. No Representations by Provider. The Representatives of each Provider will have the exclusive authority to decide what Confidential\nInformation (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of\nthe Provider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the\nRecipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished.\nNeither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or\ncompleteness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the\nRecipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of the Provider’s Confidential Information or any\ninaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive\nwritten agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties\n(a “Definitive Agreement”) will have legal effect.\n5. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in section 3 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient’s disclosure thereof;\n(ii) subject to section 5(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative: (A) needs to know such Confidential Information for the purpose of helping the Recipient\nevaluate or negotiate a possible negotiated transaction between the Parties; and (B) has been informed of the obligations set forth in this Agreement\nand has agreed to abide and be bound by the provisions hereof; and\n(iii) subject to section 5(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by subpoena or other valid legal process.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be\ndisclosed only to specified Representatives of the Recipient, then, notwithstanding anything to the contrary contained in section 5(a)(ii) above, the\nRecipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient.\n(c) If the Recipient or any of the Recipient’s Representatives is required by applicable law or governmental regulation or by subpoena or\nother valid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the\nProvider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy.\nThe Recipient and its Representatives will use reasonable efforts to cooperate with the Provider and the Provider’s Representatives in any attempt by\nthe Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such\nprotective order or other remedy in connection with any requirement that the Recipient disclose\nConfidential Information of the Provider, and if the Recipient has been advised by its internal counsel or other reputable external legal counsel\nconfirming that the disclosure of such Confidential Information is legally required, then the Recipient may disclose such Confidential Information to\nthe extent legally required; provided, however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such\nConfidential Information is treated confidentially by each Person to whom it is disclosed.\n6. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver\nto the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the\nRecipient’s Representatives; provided, however, that, in lieu of delivering to the Provider any written materials of the type described in clause “(b)”\nof the first sentence of section 2 above, the Recipient may destroy such written materials and deliver to the Provider a certificate confirming their\ndestruction. Notwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant\nto this section 6, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement.\n7. Standstill Provision. During the 18-month period commencing on the date of this Agreement (the “Standstill Period”), neither Beckman\nCoulter nor any entity controlling, controlled by or under common control with Beckman Coulter will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Biosite or any securities\nof any subsidiary or other affiliate of Biosite, (ii) any acquisition of any assets of Biosite or any assets of any subsidiary or other affiliate of Biosite,\n(iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary\ntransaction involving Biosite or any subsidiary or other affiliate of Biosite, or involving any securities or assets of Biosite or any securities or assets\nof any subsidiary or other affiliate of Biosite, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and\nExchange Commission) or consents with respect to any securities of Biosite;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Biosite;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Biosite;\n(d) take any action that might require Biosite to make a public announcement regarding any of the types of matters set forth in clause\n“(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”, “(c)”\nor “(d)” of this sentence;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of\nthis sentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Biosite or any of Biosite’s Representatives amend, waive or consider the amendment or waiver of any\nprovision set forth in this section 7.\nIn the event that Biosite enters into a definitive agreement with any other Person or entity involving a merger or sale of the majority of the\noutstanding securities or assets of Biosite to a third party, following Biosite’s announcement of such definitive agreement Beckman Coulter shall be\nreleased from any and all of the restrictions and obligations contained in this paragraph; provided, however, that any such release shall not be\ndeemed a waiver of any prior breach under this paragraph.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.\n8. Limitation on Soliciting Employees. During the 12-month period commencing on the date of this Agreement, Beckman Coulter will not\npermit any of its Representatives or any subsidiary or affiliate thereof who is or becomes aware of the consideration or negotiation of a possible\ntransaction between the Parties to solicit for employment with such Party or any of its subsidiaries or affiliates any Specified Employee (as defined\nbelow) of Biosite; provided, however, that this section 8 will not prevent Beckman Coulter or any of its Representatives or any subsidiary or affiliate\nthereof from: (a) causing to be placed any general advertisement or similar public notice that is not targeted specifically at employees of Biosite or\nits subsidiaries or affiliates; or (b) engaging any recruiting firm or similar organization to identify or solicit persons for employment on behalf of\nBeckman Coulter, or soliciting the employment of any Specified Employee of Biosite or any of its subsidiaries or affiliates who is identified by any\nsuch recruiting firm or organization, as long as such recruiting firm or organization is not instructed to target any employees of Biosite or its\nsubsidiaries or affiliates. For purposes of this section 8, a person shall be deemed to be a “Specified Employee” of Biosite if: (i) such person is\nemployed by Biosite or by any subsidiary or affiliate of Biosite on the date of this Agreement or becomes employed by Biosite or by any subsidiary\nor affiliate of Biosite during the period in which such Party is continuing to negotiate a possible transaction with the other Party; and (ii) such\nperson’s employment shall not have been involuntarily terminated by Biosite or by a subsidiary or affiliate of Biosite.\n9. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems\nappropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process\nwithout giving notice to the other Party or any other Person; (b) to reject any\nproposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving such Party; and (c) to terminate\ndiscussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written\nagreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to\nnegotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims\nagainst the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the\nother Party.\n10. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this\nAgreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future\nexercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or\namended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular\nprovision or provisions being waived or amended.\n11. Remedies. Each Party shall indemnify and hold harmless the other Party and the other Party’s Representatives against and from, and shall\ncompensate and reimburse the other Party and the other Party’s Representatives for, any damage, loss, claim, liability or expense (including legal\nfees and the cost of enforcing the other Party’s rights under this Agreement) arising out of or resulting from any unauthorized use or disclosure of\nany of the other Party’s Confidential Information or any other breach of this Agreement by such Party or any of its Representatives. Each Party\nacknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s\nRepresentatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to\nequitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party\nor any of the other Party’s Representatives. The indemnification and equitable remedies referred to above will not be deemed to be the exclusive\nremedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event of\nlitigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its Representatives has breached this\nAgreement, such Party will be liable for, and will pay to the other Party and the other Party’s Representatives, the reasonable legal fees incurred by\nthe other Party and the other Party’s Representatives in connection with such litigation (including any appeal relating thereto).\n12. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of California (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of California for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth below the name of such Party at the end of this Agreement shall be effective service of\nprocess for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of\nvenue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of California; and\n(d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any\naction, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of California has\nbeen brought in an inconvenient forum.\n13. Miscellaneous.\n(a) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(b) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any\nother situation or in any other jurisdiction.\n(c) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider\nis not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right.\n(d) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of\ninterest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties” mutual\ndesire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality\nof any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the\nattorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection\nthereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the\nfullest extent possible, the applicability of all such privileges or doctrines.\n(e) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof. However, for the avoidance of doubt, the\nParties mutually acknowledge and agree that this Agreement shall not modify, amend, terminate or supersede any obligation of either Party under\nany prior agreement to preserve the confidentiality of non-public information of the other Party that is disclosed for\npurposes unrelated to the consideration or negotiation of a strategic transaction involving the parties, including without limitation any obligations\narising out of that certain Confidentiality Agreement effective October 9, 2003, the Mutual Confidential Disclosure Agreement dated as of January 7,\n2003, the Confidentiality Agreement effective October 15, 2002, and the Confidentiality Agreement effective June 14, 2001, the BNP Assay\nDevelopment, Manufacture and Supply Agreement effective June 24, 2003, as amended, and the Stroke Assay Development, Manufacture and\nSupply Agreement dated as of June 24, 2003 (collectively, the “Pre-Existing Agreements”). Any disclosures of non-public information for purposes\nunrelated to the consideration or negotiation of a strategic transaction between the Parties shall continue to be subject to the applicable Pre-Existing\nAgreement in accordance with its terms.\n[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]\nIN WITNESS WHEREOF, the parties have caused this CONFIDENTIALITY AGREEMENT to be executed as of the date first written above. BIOSITE INCORPORATED\nBy: /s/ Kim D. Blickenstaff\nName: Kim D. Blickenstaff\nTitle:  Chairman & CEO\nAddress: 9975 Summers Ridge Road\nSan Diego, CA 92121\nBECKMAN COULTER, INC.\nBy: /s/ Arnold A. Pinkston\nName: Arnold A. Pinkston\nTitle:  Senior Vice President & General Counsel\nAddress: 4300 N. Harbor Blvd.\nFullerton, CA 92835\n. LOGO\nJune 2, 2006\nBeckman Coulter, Inc.\n4300 N. Harbor Blvd.\nFullerton, CA 92835\nLadies and Gentlemen:\nReference is made to that certain Confidentiality Agreement entered into as of May 11, 2006 (the “Agreement”), between Biosite Incorporated\n(“Biosite”), on the one hand, and Beckman Coulter, Inc. (together with its subsidiaries and affiliates, “Beckman Coulter”), on the other hand. The\nundersigned agree as follows:\n1. The following sentence shall be added as the second sentence of section 6 of the Agreement:\n“Notwithstanding the foregoing: (a) the Recipient may cause its outside legal counsel to retain one set of the Provider’s Confidential\nInformation for archival purposes, such set to be accessed or used only in order to measure compliance with the terms of this Agreement\nor to defend against any claim, action or proceeding relating to this Agreement; and (b) the financial, legal and accounting advisers to a\nParty shall have the right to retain one set of any Confidential Information for archival purposes to the extent required by any applicable\nlaw, rule or regulation.”\n2. Section 7 of the Agreement is hereby clarified by adding the following language at the end of Section 7:\n“For purposes of clarification, it is understood that this Section 7 shall not restrict: (a) any discussions or negotiations conducted in a\nconfidential manner between the Parties or their respective Representatives with respect to a possible strategic transaction; or (b)\nBeckman Coulter or any of its Representatives from making any confidential proposals to Biosite in connection with such confidential\ndiscussions or negotiations, in any case under clause “(a)” or “(b)” of this sentence until Beckman Coulter is notified by Biosite of the\ntermination of such confidential discussions and negotiations.”\n3. The reference to “with such Party” in the fourth line of Section 8 of the Agreement shall be replaced “with Beckman Coulter.”\n9975 SUMMERS RIDGE ROAD, SAN DIEGO, CA 92121 n 858-455-4808 n WWW.BIOSITE.COM\n4.  Except as set forth above, the Agreement shall remain in full force and effect as written.\nSincerely,\nBIOSITE INCORPORATED\nBy: /s/  Kim D. Blickenstaff\nAgreed to By:\nBECKMAN COULTER, INC.\nBy: /s/  Paul Glyer\nBeckman Coulter, Inc.\n4300 N. Harbor Boulevard, Fullerton, California 92834\nMay 1, 2007\nBiosite Incorporated\n9975 Summers Ridge Road\nSan Diego, CA 92121\nLadies and Gentleman:\nReference is made to that certain Confidentiality Agreement entered into as of May 11, 2006, as amended on June 2, 2006, (the “Agreement”)\nbetween Biosite Incorporated (“Biosite”), on the one hand, and Beckman Coulter, Inc. (together with its subsidiaries and affiliates, “Beckman\nCoulter”), on the other hand. The undersigned agree that the definition of “Standstill Period” shall be changed by amending Section 7 of the\nAgreement to replace the phrase “During the 18-month period commencing on the date of this Agreement” with the following phrase: “During the\nperiod commencing May 11, 2006 and ending March 23, 2007”.\n \nThis letter agreement is being entered into concurrently with that certain Amendment to the Agreement and Plan of Merger dated as of May 1,\n2007 by and among Beckman Coulter, Biosite and Louisiana Acquisition Sub, Inc.\n[Signature page follows]\n[signature page to Amendment to Confidentiality Agreement]\nSincerely,\nBECKMAN COULTER, INC.\nBy: /s/ Scott Garrett\nScott Garrett\nPresident and Chief Executive Officer\nAgreed to and accepted:\nBIOSITE INCORPORATED\nBy: /s/ Kim D. Blickenstaff\nKim D. Blickenstaff\nChairman and Chief Executive Officer	EX-99.(E)(6) 2 dex99e6.htm CONFIDENTIALITY AGREEMENT\nEXHIBIT (e)(6)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (this "Agreement") is being entered into as of May 11, 2006, between BIOSITE INCORPORATED\n("Biosite"), on the one hand, and BECKMAN COULTER, INC. (together with its subsidiaries and affiliates, "Beckman Coulter"), on the other\nhand.\nIn order to facilitate the consideration and negotiation of a possible strategic transaction involving Biosite and Beckman Coulter (referred to\ncollectively as the "Parties" and individually as a "Party.") separate from the ongoing business relationship between the Parties, each Party has\nrequested access to certain non-public information regarding the other Party and the other Party's subsidiaries. (Each Party, in its capacity as a\nprovider\nof\ninformation, is referred to in this Agreement as the "Provider"; and each Party, in its capacity as a recipient of information, is referred\nto\nin this Agreement as the "Recipient.") This Agreement sets forth the Parties' obligations regarding the use and disclosure of such information and\nregarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Definitions. For purposes of this Agreement:\n(a) a Party's "Representatives" will be deemed to include each Person that is or becomes: (i) a subsidiary or other affiliate of such Party;\nor (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party's subsidiaries\nor other affiliates.\n(b) the term "Person," as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n2. Confidential Information. For purposes of this Agreement, each Provider's "Confidential Information" will be deemed to include only the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast\nor projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has been made available to the Recipient\nor any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly\nupon any information of the type referred to in clause "(a)" of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause "(a)" of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms of any such transaction.\nHowever, the Provider's "Confidentia Information" will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient's Representatives;\n(ii) any information that was in the Recipient's possession prior to the time it was first made available to the Recipient or any of\nthe Recipient's Representatives by or on behalf of the Provider or any of the Provider's Representatives, provided that the source of such information\nwas not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person\nwith respect to any of such information; or\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider's Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of\nconfidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient or any of the Recipient's Representatives without reliance\non the information received from Provider or any of the Provider's Representatives hereunder, as evidenced by written records.\n3. Limitations on Use and Disclosure of Confidential Information. Subject to section 5 below, neither the Recipient nor any of the\nRecipient's Representatives will, at any time, directly or indirectly:\n(a) make use of any of the Provider's Confidential Information, except for the specific purpose of considering, evaluating and\nnegotiating a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider's Confidential Information to any other Person.\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on\nthe part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nactions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider's Confidential Information.\n4. No Representations by Provider. The Representatives of each Provider will have the exclusive authority to decide what Confidential\nInformation (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of\nthe Provider's Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the\nRecipient or any of the Recipient's Representatives or to supplement or update any Confidential Information of the Provider previously furnished.\nNeither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or\ncompleteness of any of the Provider's Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the\nRecipient or to any of the Recipient's Representatives relating to or resulting from the use of any of the Provider's Confidential Information or any\ninaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive\nwritten agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties\n(a "Definitive Agreement") will have legal effect.\n5. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in section 3 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient's disclosure thereof;\n(ii) subject to section 5(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative: (A) needs to know such Confidential Information for the purpose of helping the Recipient\nevaluate or negotiate a possible negotiated transaction between the Parties; and (B) has been informed of the obligations set forth in this Agreement\nand has agreed to abide and be bound by the provisions hereof; and\n(iii) subject to section 5(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required\nby\napplicable law or governmental regulation or by subpoena or other valid legal process.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be\ndisclosed only to specified Representatives of the Recipient, then, notwithstanding anything to the contrary contained in section 5(a)(ii) above, the\nRecipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient.\n(c) If the Recipient or any of the Recipient's Representatives is required by applicable law or governmental regulation or by subpoena or\nother valid legal process to disclose any of the Provider's Confidential Information to any Person, then the Recipient will promptly provide the\nProvider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate\nremedy.\nThe Recipient and its Representatives will use reasonable efforts to cooperate with the Provider and the Provider's Representatives in any attempt by\nthe Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such\nprotective order or other remedy in connection with any requirement that the Recipient disclose\nConfidential Information of the Provider, and if the Recipient has been advised by its internal counsel or other reputable external legal counsel\nconfirming that the disclosure of such Confidential Information is legally required, then the Recipient may disclose such Confidential Information to\nthe extent legally required; provided, however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such\nConfidential Information is treated confidentially by each Person to whom it is disclosed.\n6. Return of Confidential Information. Upon the Provider's request, the Recipient and the Recipient's Representatives will promptly deliver\nto the Provider any of the Provider's Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the\nRecipient's Representatives; provided, however, that, in lieu of delivering to the Provider any written materials of the type described in clause\n"(b)"\nof the first sentence of section 2 above, the Recipient may destroy such written materials and deliver to the Provider a certificate confirming their\ndestruction. Notwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant\nto this section 6, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement.\n7. Standstill Provision. During the 18-month period commencing on the date of this Agreement (the "Standstill Period"), neither Beckman\nCoulter nor any entity controlling, controlled by or under common control with Beckman Coulter will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Biosite or any securities\nof any subsidiary or other affiliate of Biosite, (ii) any acquisition of any assets of Biosite or any assets of any subsidiary or other affiliate of Biosite,\n(iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary\ntransaction involving Biosite or any subsidiary or other affiliate of Biosite, or involving any securities or assets of Biosite or any securities or assets\nof any subsidiary or other affiliate of Biosite, or (iv) any "solicitation" of "proxies" (as those terms are used in the proxy rules of the Securities and\nExchange Commission) or consents with respect to any securities of Biosite;\n(b) form, join or participate in a "group" (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Biosite;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Biosite;\n(d) take any action that might require Biosite to make a public announcement regarding any of the types of matters set forth in clause\n"(a)" of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause "(a)", "(b)", "(c)"\nor "(d)" of this sentence;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause "(a)", "(b)", "(c)", "(d)" or "(e)" of\nthis sentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing;\nor\n(h) request or propose that Biosite or any of Biosite's Representatives amend, waive or consider the amendment or waiver of any\nprovision set forth in this section 7.\nIn the event that Biosite enters into a definitive agreement with any other Person or entity involving a merger or sale of the majority of the\noutstanding securities or assets of Biosite to a third party, following Biosite's announcement of such definitive agreement Beckman Coulter shall\nbe\nreleased from any and all of the restrictions and obligations contained in this paragraph; provided, however, that any such release shall not be\ndeemed a waiver of any prior breach under this paragraph.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.\n8. Limitation on Soliciting Employees. During the 12-month period commencing on the date of this Agreement, Beckman Coulter will not\npermit any of its Representatives or any subsidiary or affiliate thereof who is or becomes aware of the consideration or negotiation of a possible\ntransaction between the Parties to solicit for employment with such Party or any of its subsidiaries or affiliates any Specified Employee (as defined\nbelow) of Biosite; provided, however, that this section 8 will not prevent Beckman Coulter or any of its Representatives or any subsidiary or affiliate\nthereof from: (a) causing to be placed any general advertisement or similar public notice that is not targeted specifically at employees of Biosite or\nits subsidiaries or affiliates; or (b) engaging any recruiting firm or similar organization to identify or solicit persons for employment on behalf of\nBeckman Coulter, or soliciting the employment of any Specified Employee of Biosite or any of its subsidiaries or affiliates who is identified by any\nsuch recruiting firm or organization, as long as such recruiting firm or organization is not instructed to target any employees of Biosite or its\nsubsidiaries or affiliates. For purposes of this section 8, a person shall be deemed to be a "Specified Employee" of Biosite if: (i) such person is\nemployed by Biosite or by any subsidiary or affiliate of Biosite on the date of this Agreement or becomes employed by Biosite or by any subsidiary\nor affiliate of Biosite during the period in which such Party is continuing to negotiate a possible transaction with the other Party; and (ii) such\nperson's employment shall not have been involuntarily terminated by Biosite or by a subsidiary or affiliate of Biosite.\n9. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems\nappropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process\nwithout giving notice to the other Party or any other Person; (b) to reject any\nproposal made by the other Party or any of the other Party's Representatives with respect to a transaction involving such Party; and (c) to terminate\ndiscussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written\nagreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free\nto\nnegotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims\nagainst the other Party or any of the other Party's Representatives arising out of or relating to any transaction or proposed transaction involving the\nother Party.\n10. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this\nAgreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future\nexercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or\namended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular\nprovision or provisions being waived or amended.\n11. Remedies. Each Party shall indemnify and hold harmless the other Party and the other Party's Representatives against and from, and shall\ncompensate and reimburse the other Party and the other Party's Representatives for, any damage, loss, claim, liability or expense (including legal\nfees and the cost of enforcing the other Party's rights under this Agreement) arising out of or resulting from any unauthorized use or disclosure\nof\nany of the other Party's Confidential Information or any other breach of this Agreement by such Party or any of its Representatives. Each Party\nacknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party's\nRepresentatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to\nequitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party\nor any of the other Party's Representatives. The indemnification and equitable remedies referred to above will not be deemed to be the exclusive\nremedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event\nof\nlitigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its Representatives has breached this\nAgreement, such Party will be liable for, and will pay to the other Party and the other Party's Representatives, the reasonable legal fees incurred by\nthe other Party and the other Party's Representatives in connection with such litigation (including any appeal relating thereto).\n12. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of California (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of California for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth below the name of such Party at the end of this Agreement shall be effective service of\nprocess for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of\nvenue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of California; and\n(d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any\naction, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of California has\nbeen brought in an inconvenient forum.\n13. Miscellaneous.\n(a) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(b) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any\nother situation or in any other jurisdiction.\n(c) By making Confidential Information or other information available to the Recipient or the Recipient's Representatives, the Provider\nis not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right.\n(d) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of\ninterest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties' mutual\ndesire,\nintention\nand\nunderstanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality\nof any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the\nattorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection\nthereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the\nfullest extent possible, the applicability of all such privileges or doctrines.\n(e) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof. However, for the avoidance of doubt, the\nParties mutually acknowledge and agree that this Agreement shall not modify, amend, terminate or supersede any obligation of either Party under\nany prior agreement to preserve the confidentiality of non-public information of the other Party that is disclosed for\npurposes unrelated to the consideration or negotiation of a strategic transaction involving the parties, including without limitation any obligations\narising out of that certain Confidentiality Agreement effective October 9, 2003, the Mutual Confidential Disclosure Agreement dated as of January\n7,\n2003, the Confidentiality Agreement effective October 15, 2002, and the Confidentiality Agreement effective June 14, 2001, the BNP Assay\nDevelopment, Manufacture and Supply Agreement effective June 24, 2003, as amended, and the Stroke Assay Development, Manufacture and\nSupply Agreement dated as of June 24, 2003 (collectively, the "Pre-Existing Agreements"). Any disclosures of non-public information for purposes\nunrelated to the consideration or negotiation of a strategic transaction between the Parties shall continue to be subject to the applicable Pre-Existing\nAgreement in accordance with its terms.\n[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]\nIN WITNESS WHEREOF, the parties have caused this CONFIDENTIALITY AGREEMENT to be executed as of the date first written above.\nBIOSITE INCORPORATED\nBECKMAN COULTER, INC.\nBy:\n/s/ Kim D. Blickenstaff\nBy:\n/s/ Arnold A. Pinkston\nName: Kim D. Blickenstaff\nName: Arnold A. Pinkston\nTitle: Chairman & CEO\nTitle: Senior Vice President & General Counsel\nAddress: 9975 Summers Ridge Road\nAddress: 4300 N. Harbor Blvd.\nSan Diego, CA 92121\nFullerton, CA 92835\nLOGO\nJune 2, 2006\nBeckman Coulter, Inc.\n4300 N. Harbor Blvd.\nFullerton, CA 92835\nLadies and Gentlemen:\nReference is made to that certain Confidentiality Agreement entered into as of May 11, 2006 (the "Agreement"), between Biosite Incorporated\n("Biosite"), on the one hand, and Beckman Coulter, Inc. (together with its subsidiaries and affiliates, "Beckman Coulter"), on the other hand. The\nundersigned agree as follows:\n1.\nThe following sentence shall be added as the second sentence of section 6 of the Agreement:\n"Notwithstanding the foregoing: (a) the Recipient may cause its outside legal counsel to retain one set of the Provider's Confidential\nInformation for archival purposes, such set to be accessed or used only in order to measure compliance with the terms of this Agreement\nor to defend against any claim, action or proceeding relating to this Agreement; and (b) the financial, legal and accounting advisers to a\nParty shall have the right to retain one set of any Confidential Information for archival purposes to the extent required by any applicable\nlaw, rule or regulation."\n2.\nSection 7 of the Agreement is hereby clarified by adding the following language at the end of Section 7:\n"For purposes of clarification, it is understood that this Section 7 shall not restrict: (a) any discussions or negotiations conducted in a\nconfidential manner between the Parties or their respective Representatives with respect to a possible strategic transaction; or (b)\nBeckman Coulter or any of its Representatives from making any confidential proposals to Biosite in connection with such confidential\ndiscussions or negotiations, in any case under clause "(a)" or "(b)" of this sentence until Beckman Coulter is notified by Biosite of the\ntermination of such confidential discussions and negotiations."\n3.\nThe reference to "with such Party" in the fourth line of Section 8 of the Agreement shall be replaced "'with Beckman Coulter."\n9975 SUMMERS RIDGE ROAD, SAN DIEGO, CA 92121 n 858-455-4808 n WWW.BIOSITE.COM\n4.\nExcept as set forth above, the Agreement shall remain in full force and effect as written.\nSincerely,\nBIOSITE INCORPORATED\nBy:\n/s/ Kim D. Blickenstaff\nAgreed to By:\nBECKMAN COULTER, INC.\nBy:\n/s/ Paul Glyer\nBeckman Coulter, Inc.\n4300 N. Harbor Boulevard, Fullerton, California 92834\nMay 1, 2007\nBiosite Incorporated\n9975 Summers Ridge Road\nSan Diego, CA 92121\nLadies and Gentleman:\nReference is made to that certain Confidentiality Agreement entered into as of May 11, 2006, as amended on June 2, 2006, (the "Agreement")\nbetween Biosite Incorporated ("Biosite"), on the one hand, and Beckman Coulter, Inc. (together with its subsidiaries and affiliates, "Beckman\nCoulter"), on the other hand. The undersigned agree that the definition of "Standstill Period" shall be changed by amending Section 7 of the\nAgreement to replace the phrase "During the 18-month period commencing on the date of this Agreement" with the following phrase: "During the\nperiod commencing May 11, 2006 and ending March 23, 2007".\nThis letter agreement is being entered into concurrently with that certain Amendment to the Agreement and Plan of Merger dated as of May 1,\n2007 by and among Beckman Coulter, Biosite and Louisiana Acquisition Sub, Inc.\n[Signature page follows]\n[signature page to Amendment to Confidentiality Agreement]\nSincerely,\nBECKMAN COULTER, INC.\nBy:\n/s/ Scott Garrett\nScott Garrett\nPresident and Chief Executive Officer\nAgreed to and accepted:\nBIOSITE INCORPORATED\nBy:\n/s/ Kim D. Blickenstaff\nKim D. Blickenstaff\nChairman and Chief Executive Officer	EX-99.(E)(6) 2 dex99e6.htm CONFIDENTIALITY AGREEMENT\nEXHIBIT (e)(6)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY A GREEMENT (this “Agreement”) is being entered into as of May 11, 2006, between BIOSITE INCORPORATED\n(“Biosite”), on the one hand, and BECKMAN COULTER, INC. (together with its subsidiaries and affiliates, “Beckman Coulter”), on the other hand.\nIn order to facilitate the consideration and negotiation of a possible strategic transaction involving Biosite and Beckman Coulter (referred to\ncollectively as the “Parties” and individually as a “Party”) separate from the ongoing business relationship between the Parties, each Party has\nrequested access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a\nprovider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to\nin this Agreement as the “Recipient.”) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and\nregarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Definitions. For purposes of this Agreement:\n(a) a Party’s “Representatives” will be deemed to include each Person that is or becomes: (i) a subsidiary or other affiliate of such Party;\nor (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries\nor other affiliates.\n(b) the term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n2. Confidential Information. For purposes of this Agreement, each Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast\nor projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has been made available to the Recipient\nor any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly\nupon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms of any such transaction.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of\nthe Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information\nwas not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person\nwith respect to any of such information; or\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of\nconfidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient or any of the Recipient’s Representatives without reliance\non the information received from Provider or any of the Provider’s Representatives hereunder, as evidenced by written records.\n3. Limitations on Use and Disclosure of Confidential Information. Subject to section 5 below, neither the Recipient nor any of the\nRecipient’s Representatives will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information, except for the specific purpose of considering, evaluating and\nnegotiating a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider’s Confidential Information to any other Person.\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on\nthe part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nactions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential Information.\n4. No Representations by Provider. The Representatives of each Provider will have the exclusive authority to decide what Confidential\nInformation (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of\nthe Provider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the\nRecipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished.\nNeither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or\ncompleteness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the\nRecipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of the Provider’s Confidential Information or any\ninaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive\nwritten agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties\n(a “Definitive Agreement”) will have legal effect.\n5. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in section 3 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient’s disclosure thereof;\n(ii) subject to section 5(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative: (A) needs to know such Confidential Information for the purpose of helping the Recipient\nevaluate or negotiate a possible negotiated transaction between the Parties; and (B) has been informed of the obligations set forth in this Agreement\nand has agreed to abide and be bound by the provisions hereof; and\n(iii) subject to section 5(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by subpoena or other valid legal process.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be\ndisclosed only to specified Representatives of the Recipient, then, notwithstanding anything to the contrary contained in section 5(a)(ii) above, the\nRecipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient.\n(c) If the Recipient or any of the Recipient’s Representatives is required by applicable law or governmental regulation or by subpoena or\nother valid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the\nProvider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy.\nThe Recipient and its Representatives will use reasonable efforts to cooperate with the Provider and the Provider’s Representatives in any attempt by\nthe Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such\nprotective order or other remedy in connection with any requirement that the Recipient disclose\nConfidential Information of the Provider, and if the Recipient has been advised by its internal counsel or other reputable external legal counsel\nconfirming that the disclosure of such Confidential Information is legally required, then the Recipient may disclose such Confidential Information to\nthe extent legally required; provided, however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such\nConfidential Information is treated confidentially by each Person to whom it is disclosed.\n6. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver\nto the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the\nRecipient’s Representatives; provided, however, that, in lieu of delivering to the Provider any written materials of the type described in clause “(b)”\nof the first sentence of section 2 above, the Recipient may destroy such written materials and deliver to the Provider a certificate confirming their\ndestruction. Notwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant\nto this section 6, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement.\n7. Standstill Provision. During the 18-month period commencing on the date of this Agreement (the “Standstill Period”), neither Beckman\nCoulter nor any entity controlling, controlled by or under common control with Beckman Coulter will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Biosite or any securities\nof any subsidiary or other affiliate of Biosite, (ii) any acquisition of any assets of Biosite or any assets of any subsidiary or other affiliate of Biosite,\n(iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary\ntransaction involving Biosite or any subsidiary or other affiliate of Biosite, or involving any securities or assets of Biosite or any securities or assets\nof any subsidiary or other affiliate of Biosite, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and\nExchange Commission) or consents with respect to any securities of Biosite;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Biosite;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Biosite;\n(d) take any action that might require Biosite to make a public announcement regarding any of the types of matters set forth in clause\n“(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”, “(c)”\nor “(d)” of this sentence;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of\nthis sentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Biosite or any of Biosite’s Representatives amend, waive or consider the amendment or waiver of any\nprovision set forth in this section 7.\nIn the event that Biosite enters into a definitive agreement with any other Person or entity involving a merger or sale of the majority of the\noutstanding securities or assets of Biosite to a third party, following Biosite’s announcement of such definitive agreement Beckman Coulter shall be\nreleased from any and all of the restrictions and obligations contained in this paragraph; provided, however, that any such release shall not be\ndeemed a waiver of any prior breach under this paragraph.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.\n8. Limitation on Soliciting Employees. During the 12-month period commencing on the date of this Agreement, Beckman Coulter will not\npermit any of its Representatives or any subsidiary or affiliate thereof who is or becomes aware of the consideration or negotiation of a possible\ntransaction between the Parties to solicit for employment with such Party or any of its subsidiaries or affiliates any Specified Employee (as defined\nbelow) of Biosite; provided, however, that this section 8 will not prevent Beckman Coulter or any of its Representatives or any subsidiary or affiliate\nthereof from: (a) causing to be placed any general advertisement or similar public notice that is not targeted specifically at employees of Biosite or\nits subsidiaries or affiliates; or (b) engaging any recruiting firm or similar organization to identify or solicit persons for employment on behalf of\nBeckman Coulter, or soliciting the employment of any Specified Employee of Biosite or any of its subsidiaries or affiliates who is identified by any\nsuch recruiting firm or organization, as long as such recruiting firm or organization is not instructed to target any employees of Biosite or its\nsubsidiaries or affiliates. For purposes of this section 8, a person shall be deemed to be a “Specified Employee” of Biosite if: (i) such person is\nemployed by Biosite or by any subsidiary or affiliate of Biosite on the date of this Agreement or becomes employed by Biosite or by any subsidiary\nor affiliate of Biosite during the period in which such Party is continuing to negotiate a possible transaction with the other Party; and (ii) such\nperson’s employment shall not have been involuntarily terminated by Biosite or by a subsidiary or affiliate of Biosite.\n9. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems\nappropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process\nwithout giving notice to the other Party or any other Person; (b) to reject any\nproposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving such Party; and (c) to terminate\ndiscussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written\nagreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to\nnegotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims\nagainst the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the\nother Party.\n10. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this\nAgreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future\nexercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or\namended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular\nprovision or provisions being waived or amended.\n11. Remedies. Each Party shall indemnify and hold harmless the other Party and the other Party’s Representatives against and from, and shall\ncompensate and reimburse the other Party and the other Party’s Representatives for, any damage, loss, claim, liability or expense (including legal\nfees and the cost of enforcing the other Party’s rights under this Agreement) arising out of or resulting from any unauthorized use or disclosure of\nany of the other Party’s Confidential Information or any other breach of this Agreement by such Party or any of its Representatives. Each Party\nacknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s\nRepresentatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to\nequitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party\nor any of the other Party’s Representatives. The indemnification and equitable remedies referred to above will not be deemed to be the exclusive\nremedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event of\nlitigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its Representatives has breached this\nAgreement, such Party will be liable for, and will pay to the other Party and the other Party’s Representatives, the reasonable legal fees incurred by\nthe other Party and the other Party’s Representatives in connection with such litigation (including any appeal relating thereto).\n12. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of California (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of California for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth below the name of such Party at the end of this Agreement shall be effective service of\nprocess for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of\nvenue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of California; and\n(d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any\naction, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of California has\nbeen brought in an inconvenient forum.\n13. Miscellaneous.\n(a) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(b) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any\nother situation or in any other jurisdiction.\n(c) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider\nis not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right.\n(d) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of\ninterest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual\ndesire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality\nof any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the\nattorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection\nthereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the\nfullest extent possible, the applicability of all such privileges or doctrines.\n(e) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof. However, for the avoidance of doubt, the\nParties mutually acknowledge and agree that this Agreement shall not modify, amend, terminate or supersede any obligation of either Party under\nany prior agreement to preserve the confidentiality of non-public information of the other Party that is disclosed for\npurposes unrelated to the consideration or negotiation of a strategic transaction involving the parties, including without limitation any obligations\narising out of that certain Confidentiality Agreement effective October 9, 2003, the Mutual Confidential Disclosure Agreement dated as of January 7,\n2003, the Confidentiality Agreement effective October 15, 2002, and the Confidentiality Agreement effective June 14, 2001, the BNP Assay\nDevelopment, Manufacture and Supply Agreement effective June 24, 2003, as amended, and the Stroke Assay Development, Manufacture and\nSupply Agreement dated as of June 24, 2003 (collectively, the “Pre-Existing Agreements”). Any disclosures of non-public information for purposes\nunrelated to the consideration or negotiation of a strategic transaction between the Parties shall continue to be subject to the applicable Pre-Existing\nAgreement in accordance with its terms.\n[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]\nIN WITNESS WHEREOF, the parties have caused this CONFIDENTIALITY AGREEMENT to be executed as of the date first written above.\nBIOSITE INCORPORATED\nBECKMAN COULTER, INC.\nBy: /s/ Kim D. Blickenstaff\nBy: /s/ Arnold A. Pinkston\nName: Kim D. Blickenstaff\nName: Arnold A. Pinkston\nTitle: Chairman & CEO\nTitle: Senior Vice President & General Counsel\nAddress: 9975 Summers Ridge Road\nSan Diego, CA 92121\nAddress: 4300 N. Harbor Blvd.\nFullerton, CA 92835\nLOGO\nJune 2, 2006\nBeckman Coulter, Inc.\n4300 N. Harbor Blvd.\nFullerton, CA 92835\nLadies and Gentlemen:\nReference is made to that certain Confidentiality Agreement entered into as of May 11, 2006 (the “Agreement”), between Biosite Incorporated\n(“Biosite”), on the one hand, and Beckman Coulter, Inc. (together with its subsidiaries and affiliates, “Beckman Coulter”), on the other hand. The\nundersigned agree as follows:\n1. The following sentence shall be added as the second sentence of section 6 of the Agreement:\n“Notwithstanding the foregoing: (a) the Recipient may cause its outside legal counsel to retain one set of the Provider’s Confidential\nInformation for archival purposes, such set to be accessed or used only in order to measure compliance with the terms of this Agreement\nor to defend against any claim, action or proceeding relating to this Agreement; and (b) the financial, legal and accounting advisers to a\nParty shall have the right to retain one set of any Confidential Information for archival purposes to the extent required by any applicable\nlaw, rule or regulation.”\n2. Section 7 of the Agreement is hereby clarified by adding the following language at the end of Section 7:\n“For purposes of clarification, it is understood that this Section 7 shall not restrict: (a) any discussions or negotiations conducted in a\nconfidential manner between the Parties or their respective Representatives with respect to a possible strategic transaction; or (b)\nBeckman Coulter or any of its Representatives from making any confidential proposals to Biosite in connection with such confidential\ndiscussions or negotiations, in any case under clause “(a)” or “(b)” of this sentence until Beckman Coulter is notified by Biosite of the\ntermination of such confidential discussions and negotiations.”\n3. The reference to “with such Party” in the fourth line of Section 8 of the Agreement shall be replaced “with Beckman Coulter.”\n9975 SUMMERS RIDGE ROAD, SAN DIEGO, CA 92121 n 858-455-4808 n WWW.BIOSITE.COM\n4. Except as set forth above, the Agreement shall remain in full force and effect as written.\nSincerely,\nBIOSITE INCORPORATED\nBy:\n/s/ Kim D. Blickenstaff\nAgreed to By:\nBECKMAN COULTER, INC.\nBy:\n/s/ Paul Glyer\nBeckman Coulter, Inc.\n4300 N. Harbor Boulevard, Fullerton, California 92834\nMay 1, 2007\nBiosite Incorporated\n9975 Summers Ridge Road\nSan Diego, CA 92121\nLadies and Gentleman:\nReference is made to that certain Confidentiality Agreement entered into as of May 11, 2006, as amended on June 2, 2006, (the “Agreement”)\nbetween Biosite Incorporated (“Biosite”), on the one hand, and Beckman Coulter, Inc. (together with its subsidiaries and affiliates, “Beckman\nCoulter”), on the other hand. The undersigned agree that the definition of “Standstill Period” shall be changed by amending Section 7 of the\nAgreement to replace the phrase “During the 18-month period commencing on the date of this Agreement” with the following phrase: “During the\nperiod commencing May 11, 2006 and ending March 23, 2007”.\nThis letter agreement is being entered into concurrently with that certain Amendment to the Agreement and Plan of Merger dated as of May 1,\n2007 by and among Beckman Coulter, Biosite and Louisiana Acquisition Sub, Inc.\n[Signature page follows]\n[signature page to Amendment to Confidentiality Agreement]\nSincerely,\nBECKMAN COULTER, INC.\nBy:\n/s/ Scott Garrett\nScott Garrett\nPresident and Chief Executive Officer\nAgreed to and accepted:\nBIOSITE INCORPORATED\nBy:\n/s/ Kim D. Blickenstaff\nKim D. Blickenstaff\nChairman and Chief Executive Officer
65e9b4a23cf47e9380a9589978eb779e.pdf	effective_date jurisdiction party term	EX-10.1 2 ex10-1.htm EXHIBIT 10.1 CONFIDENTIAL SEVERANCE AGREEMENT AND GENERAL RELEASE\nCONFIDENTIAL SEVERANCE AGREEMENT AND GENERAL RELEASE\nThis Confidential Severance Agreement and General Release (“Agreement”), is made and entered into by and between the undersigned\nindividual Brad N. Graves (“Graves” or “you”) and Genesis Energy, Inc. (the “Company”), Grant E. Sims (“Sims”), and Joseph A. Blount, Jr.\n(“Blount”) (the signatories to this Agreement will be referred to collectively as the “Parties,” and the Parties other than you are the “Other\nParties”) as follows:\nWHEREAS, Sims, Blount and you were negotiating the definitive terms and conditions pursuant to which (i) the Company and its\naffiliates would, under certain circumstances, compensate a management team led by Sims (and to include you initially) for services rendered to\nthe Company, and (ii) how, and under what circumstances, Sims, Blount, you and any other members of that management team potentially might\nshare such compensation;\nWHEREAS, the Company employed you as Executive Vice President since on or about August 8, 2006;\nWHEREAS, the Company terminated your employment on or about November 26, 2007;\nWHEREAS, the Parties desire to amicably sever the employment and other business relationships that existed between them;\nWHEREAS, in consideration of the services rendered by you and the additional undertakings provided for herein, the Other Parties\nhave agreed to compensate you by having the Company provide the severance compensation described in this Agreement;\nWHEREAS, the Parties have agreed, without any Party admitting liability of any kind, to enter into this Agreement pursuant to which\neach and every claim and/or cause of action asserted or which could have been asserted by you against the Company, Sims, Blount and any of\ntheir affiliates will be forever and finally released; and\nWHEREAS, the Parties have read and understand the terms and provisions of this Agreement, and desire and intend to be bound by the\nterms and provisions of this Agreement applicable to such Party.\nNOW, THEREFORE, in consideration of the covenants and mutual promises and agreements herein contained, and other valuable\nconsideration, the sufficiency of which is hereby acknowledged, the Parties agree as follows:\n1.\nRelease and Waiver Agreement. The Parties acknowledge and understand that this Agreement is a mutual release and\nwaiver contract and that this document is legally binding. You and the Other Parties understand that by signing this Agreement, each Party has\nread and understood each provision and is agreeing to all of the provisions set forth in the Agreement applicable to such Party.\n2.\nClaims Covered by Agreement. You and the Other Parties acknowledge and understand that this Agreement applies only\nto claims which accrue or have accrued prior to the date this Agreement is executed by you and the Other Parties.\n3.\nTermination of Employment and Other Arrangements. Your employment with the Company, and any other arrangement\n(including claims of ownership of any equity interest in any entity) you may have had with any Other Party or their affiliates, is terminated\neffective November 26, 2007.\n4.\nSeverance Benefits. In exchange for the promises you make in this Agreement, the Company covenants and agrees to pay\nyou severance compensation in the lump sum amount of Two Million One Hundred Thousand and no/100 Dollars ($2,100,000) (the\n“Severance Compensation”). The Company’s payment of this Severance Compensation is made in connection with the severance of services\nand is subject to applicable federal, state, and local taxes and withholding. The Company and Graves agree to file all tax returns consistent\nwith the agreement that such payment is made in connection with the severance of services. This Severance Compensation is above and\nbeyond any compensation owed to you separate and apart from this Agreement, whether in connection with your employment with the\nCompany, your arrangement with Sims, Blount or any Other Party Releasee (defined below) or otherwise.\nYou will also receive continued paid medical and dental coverage for you and your dependents, at no cost to you, under the Consolidated\nOmnibus Budget Reconciliation Act of 1985 (“COBRA”) for 18 month(s) in the amount of $1,014.00 per month, provided that you make a valid\nCOBRA election. In the event you become eligible for coverage as a participant or beneficiary in an employee welfare benefit plan of another\ncompany at any time during the 18 month period following execution of this Agreement, the Company's obligation to pay monthly COBRA\npremiums for you shall cease. You agree to notify the Company immediately upon becoming eligible to participate (as participant or beneficiary)\nin another company's benefit plan. Employee welfare benefit plan as used herein includes but is not limited to benefit plans providing coverage\nfor medical, dental, and other healthcare related expenses.\nYou acknowledge that this Severance Compensation and continued medical and dental coverage are in addition to any monies or benefits to\nwhich you were already entitled. The Severance Compensation will be paid to you on the first business day following the expiration of the seven\nday (7) revocation period for this Agreement described in Paragraph 7c. below (but only if you do not revoke the Agreement during this period).\nThe continuation of your medical and dental coverage on the terms described above is also contingent on your not revoking this Agreement\nduring the seven (7) day revocation period.\n5.\nRelease And Waiver By Other Parties. In consideration for (i) the conveyance of all rights, title and interests, if any, in and\nto the ownership interests in the Company or any other affiliates of the Other Parties, and any claims for any such interests, by Graves and (ii) the\ncovenants herein, the Other Parties agree to the following:\na.\nThe Company hereby releases, acquits, defends, holds harmless, and agrees to indemnify Graves with respect to any\nclaims, losses, liabilities, obligations and causes of action, known or unknown, by the Company, Genesis Energy, L.P., their parents,\naffiliates and subsidiaries, including but not limited to Denbury Resources Inc. and its affiliates and subsidiaries, their respective\nofficers, directors, partners, managers, employees, stockholders, members, representatives and agents (collectively “the Company\nReleasees”), arising out of, connected with, or relating to: (i) Graves’ employment with the Company; (ii) Graves’ duties as an officer of\nthe Company; and (iii) any fiduciary duty owed by Graves to the Other Parties released herein. The Company represents and warrants\nthat no Company Releasee has assigned to any third party any claim involving Brad Graves or otherwise authorized any third party to\nassert any claim on its behalf against Graves.\nb.\nEach of Sims and Blount hereby release, acquit, defend, hold harmless, and agree to indemnify Graves with respect to\nany claims, losses, liabilities, obligations and causes of action, known or unknown, by such party and his respective affiliates other than\nthe Company Releasees, including his family, estate, heirs, beneficiaries, executors, and administrators (including their successors and\nassigns) and their respective officers, directors, partners, managers, employees, stockholders, members, representatives and agents\n(collectively, the “Sims Releasees”), arising out of, connected with, or relating to any duty owed by Graves to such Sims Releasees.\n6.\nRelease and Waiver By Graves. In consideration for the Severance Compensation described in this Agreement, you agree to\nthe following:\na.\nYou knowingly and voluntarily waive, release, acquit, defend, hold harmless, and agree to indemnify the Company\nReleasees and the Sims Releasees (collectively the “Other Party Releasees”), with respect to any and all claims, losses, liabilities,\nobligations and causes of action, known and unknown, by you and your affiliates, including your family, estate, heirs, beneficiaries,\nexecutors, and administrators (including their successors and assigns) and their respective officers, directors, partners, managers,\nemployees, stockholders, members, representatives and agents, including their successors and assigns (collectively, the “Graves\nReleasees”), arising out of, connected with, or relating to: (i) your employment or any arrangement you may have had with any Other\nParty Releasee; (ii) the Other Party Releasees’ refusal or failure to continue your employment or any arrangement you may have had\nwith any Other Party Releasee; or (iii) the termination of your employment or any arrangement you may have had with any Other Party\nReleasee, including, but not limited to, claims for compensation, commissions, bonuses, equity or member interests (including any\nclaim which might be made under the letter dated August 8, 2006, among the Company, Denbury Resources, Inc. and Sims),\ndistributions, distribution rights, stock options, other wages and benefits, breach of contract, wrongful termination, impairment of\neconomic opportunity, intentional infliction of emotional distress, claims based on personal injury, work-related accident, any breach of\nimplied or express covenant of good faith and fair dealing,\nviolation of public policy, or any other contract, tort or personal injury claim, or claim based on any municipal, state or federal statute,\nregulation or ordinance relating to employment, employment discrimination or retaliation, including Title VII of the Civil Rights Act of\n1964, as amended, 42 U.S.C . § 2000 et seq.; The Civil Rights Act of 1866, as amended, 42 U.S.C . § 1981; The Civil Rights Act of\n1991, as amended, 42 U.S .C . § 1981a; The Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C . § 621 et seq.;\nAmericans With Disabilities Act, as amended, 42 U.S.C . § 12101 et seq.; Fair Labor Standards Act, as amended, 29 U.S.C . § 201, et\nseq.; Equal Pay Act, as amended, 29 U.S.C. §201 et seq.; National Labor Relations Act, as amended, 29 U.S.C . § 151 et seq.; Worker\nAdjustment and Retraining Notification Act, as amended, 29 U.S.C . § 2101 et seq., Employee Retirement Income Security Act of 1974,\nas amended, 29 U.S.C. § 1000 et seq.; Family and Medical Leave Act, as amended, 29 U.S.C . § 2601, et seq.; Texas Labor Code §\n21.001, et seq.; or any other statute, rule, regulation, ordinance, or common civil or other law, or judicial or administrative interpretation\nwhether promulgated by federal, state, local or other jurisdiction or political subdivision.\nb.\nYou understand and agree that by signing this Agreement, you — on behalf of yourself and each Graves Releasee —\nagree to give up any right or entitlement you may have under federal, state or local law against the Other Party Releasees, concerning\nany events related to your employment or termination, or the Company’s failure to continue your employment or any other arrangement\nyou may have with any Other Party Releasee. This Agreement extinguishes any potential employment discrimination claims you may\nhave relating to your employment with the Company and the Company’s termination of your employment existing on the date you sign\nthis Agreement or any other arrangement you may have with any Other Party Releasee. Although this Agreement does not bar you from\nfiling a charge of discrimination with the Equal Employment Opportunity Commission or any state or local civil rights agency, by this\nAgreement you affirmatively, knowingly and voluntarily waive any claim or right to monetary or equitable relief from any such charge\nof discrimination.\nc.\nYou further represent and warrant that you have not assigned to any third party any claim involving the Other Party\nReleasees or authorized any third party to assert on your behalf any claim against the Other Party Releasees. If a third party asserts a\nclaim against the Other Party Releasees on your behalf or includes you as a class member in any class action involving any claim, you\nagree to not accept any benefits or damages relating or arising out of such claim.\n7. Consultation with Attorney, Review Period, and Revocation Period.\na.\nYou are advised, and acknowledge that you have been advised, to consult with an attorney prior to executing this\nAgreement concerning the meaning, import, and legal significance of this Agreement. You acknowledge that you have read this\nAgreement, as signified by your signature hereto, and are voluntarily executing the same for the purposes and consideration herein\nexpressed.\nb.\nYou acknowledge that you have been provided with a period of at least twenty-one (21) calendar days within which to\nconsider, review, and reflect upon the terms of this Agreement. Any discussions about or changes to the Agreement, whether material or\nimmaterial, do not restart the running of the 21-day period.\nc.\nYou have seven (7) calendar days in which you may revoke this Agreement after you sign it. If you choose to revoke\nthe Agreement, please notify the General Counsel of the Company in writing prior to the expiration of seven (7) calendar days after you\nhave signed the Agreement.\nd.\nThis Agreement shall not be effective until the expiration of seven (7) calendar days after you sign it without revoking\nit.\n8.\nGeneral Partner Liability Insurance. You will continue to be insured or otherwise indemnified to the extent you are currently\ninsured under the terms of the Company’s General Liability Insurance Policy including Directors and Officers Coverage with respect to any and\nall claims, losses, liabilities, obligations and causes of action arising out of, connected with, or relating to: (i) your employment; or (ii) the\ntermination of your employment. To the extent tail coverage is necessary to maintain coverage as currently existing and reasonably available (but\nnot at a cost in excess of 125% of current premiums), Company shall acquire same at no expense to Graves.\n9.\nConfidentiality. You shall treat the terms of this Agreement as strictly confidential. You shall not disclose the terms of this\nAgreement to anyone other than your spouse, attorney, accountant or tax advisor, without the Company’s prior written approval, except as may\nbe required by law, or court order. If you receive a request pursuant to applicable law to disclose the existence or terms of this Agreement, you\nshall promptly notify each other Party to enable it to seek a protective order or other appropriate remedy. You agree to notify your spouse,\nattorney, accountant and tax advisor of the confidential nature of this Agreement.\nThe Parties may use this Agreement as evidence in a subsequent proceeding in which a Party alleges a breach of this Agreement. Other\nthan the exceptions set forth herein, the Parties agree they shall not voluntarily introduce this Agreement as evidence in any proceeding or in any\nlawsuit unless required by law or court order. The Parties agree that this confidentiality obligation is contractual and its terms are material to this\nAgreement.\n10. Confidential Information and Trade Secrets. You agree that you shall not, without the prior written consent of the Company,\ndirectly or indirectly, disclose, reveal or communicate, or cause or allow to be disclosed, revealed or communicated to any unauthorized person\nany of any Company Releasee’s confidential matters, proprietary information or trade secrets, including, without limitation, studies, plans,\nfinancial data, information regarding projects or development prospects, acquisition candidates, strategies or any other proprietary business\ninformation or plans you had knowledge of prior to the date of this Agreement, including the projects set forth on Exhibit A. You further agree\nnot to utilize any such confidential or proprietary information or trade secrets of Company for your benefit or the\nbenefit of others, including, without limitation, others in direct or indirect competition with the Other Parties and their affiliates. The obligations\nset forth in this Paragraph 10 shall be in addition to any other confidentiality obligations that you may have to any of the Other Party Releasees.\nThe Parties expressly acknowledge that Graves was hired by the Company due to his existing general industry knowledge and expertise. This\ncovenant is not intended to restrict Graves’ ability to use or leverage that knowledge or experience, only to prevent Graves from using\nconfidential information of the Other Parties and their affiliates.\nYou further acknowledge that the injury the Other Party Releasees will suffer in the event of your breach of any covenant or agreement\nset forth in Paragraphs 9, 10, 11 and 13 cannot be compensated by monetary damages alone.\n11.\nCompany Property. You agree to return all Company property, equipment, documents and other tangible things, including\nkeys, pagers, corporate credit cards, and laptop or other computers, in accordance with the Company’s policies and rules, before the date on\nwhich this Agreement becomes effective. Company agrees to provide in writing an itemized list of any items it contends are Company property.\nYou agree to not destroy, alter, erase, or otherwise change any software, data, or other information belonging to the Company. You further agree\nthe Company may withhold from your Severance Compensation monies equal to the value of Company property, equipment and tangible things\nyou fail to return provided that no sums may be withheld if Company has not provided such itemized listing to Graves. In addition, you agree\nthat the Company may withhold from your Severance Compensation any monies you owe the Company, including but not limited to, charges to\nthe corporate credit card for which you did not submit a valid expense report, unused travel advances, salary draws, etc. Prior to withholding\nsums for such charges, Company must tender a written list of rejected expenses or charges, and provided Graves a reasonable opportunity to cure\nsuch defect.\n12.\nCooperation. For a reasonable period after your termination, you agree to make yourself available and to reasonably cooperate\nwith each other Party in any future claims or lawsuits involving the Other Party Releasees where you have knowledge of the underlying facts or\nto affect the completion of your outstanding employment duties or the transfer of such duties. Each such Requesting Party agrees to reimburse\nyou for time you spend at such Party’s request at a rate per hour equivalent to what you earned with the Company immediately before your notice\nof termination. Any obligations performed to affect the completion or transfer of your duties shall be performed as an independent contractor, not\nas an employee. You will not be reimbursed if you are a named party in any claim or lawsuit for activities associated with your defense except to\nthe extent insurance or indemnity is available to other executives. All time spent cooperating with Company on its defense shall be reimbursed.\nIn addition, you agree not to voluntarily aid, assist or cooperate with any claimant or plaintiff or their attorneys or agents in any claim or lawsuit\ncommenced against the Other Party Releasees.\nNothing in this Agreement should be construed to prevent you from initiating or participating in any state of federal agency\nadministrative proceeding or from testifying at an administrative hearing, deposition, or in court in response to a lawful subpoena .\n13.\nNon-Solicitation. For one (1) year following the date of this Agreement, you agree not to directly or indirectly, on your own\nbehalf or on behalf of another person or entity, hire or solicit for hire any employees of the Company or any of its affiliates or in any manner\nattempt to influence or induce any employee of the Company or any of its affiliates to leave their employment.\n14.\nNo Authority. As of your termination date, you shall have no authority to obligate the Company in any manner, and shall not\nenter into any contracts on the Company’s behalf. You shall not make any representation, warranty, or other statement, or take any action, that\nmay be construed by a third party to indicate that you have authority to obligate the Company or to enter into a contract on the Company’s\nbehalf.\n15.\nPublic Statements. The Parties mutually agree not to make any untrue, misleading, or defamatory statements concerning any\nof Other Parties.\n16.\nNon-Admission of Wrongdoing. This Agreement shall not in any way be construed as an admission of liability or as an\nadmission that any of the Other Party Releasees have acted wrongfully with respect to you. Each of the Other Party Releasees specifically denies\nand disclaims any such liability or wrongful acts.\n17.\nReference Letters. If a prospective employer contacts the Company to obtain your employment information or a\nrecommendation, the Company will provide only your employment dates and job title, unless you authorize the Company in writing to provide\nadditional information.\n18.\nKnowing and Voluntary Agreement. You acknowledge and agree that after you received a copy of this Agreement: (i) you\nhave had an opportunity to review this Agreement and to consult an attorney before signing it; and (ii) you enter into the Agreement knowingly,\nvoluntarily and after any consultations with your attorney or other advisor as you deemed appropriate.\n19.\nChoice of Law and Venue. You and the Company agree that this Agreement shall be performed in Harris County, Texas and\nthat the laws of the State of Texas shall govern the enforceability, interpretation and legal effect of this Agreement. The Parties agree to submit to\nthe jurisdiction of the federal and state courts sitting in Harris County, Texas, for all purposes relating to the validity, interpretation, or\nenforcement of this Agreement, including, without limitation, any application for injunctive relief.\n20.\nSeverability. The Company and you agree that, if any term of this Agreement shall be determined by a court to be void or\nunenforceable, the remaining provisions will remain effective and legally binding, and the void or unenforceable term shall be deemed not to be a\npart of this Agreement.\n21.\nAmendments. Any modification of this Agreement or additional obligation assumed by any Party in connection with this\nAgreement shall be binding only if evidenced in\nwriting signed by each Party or an authorized representative of each Party. Additionally, this Agreement cannot be changed or terminated orally,\nbut may be changed only through written addendum executed by all Parties.\n22.\nRemedies. Any material breach by a Party of the terms and conditions contained in this Agreement shall give the Other Parties\nthe right to discontinue the performance of any unperformed duties and obligations under this Agreement to the extent permitted by applicable\nlaw. If a Party breaches any term of the Agreement, any delay by another Party to enforce the Agreement shall not be deemed a waiver,\nacceptance, or acquiescence. No waiver shall bind a Party unless supported by consideration, executed in writing, and delivered to the first Party\nby an authorized representative.\n23.\nEffective Period. This Agreement is null and void if: (i) you fail to execute and return it within 21 calendar days of receipt; or\n(ii) you sign it within 21 calendar days, but revoke your execution within seven (7) calendar days after signing it.\n24.\nEntire Agreement. This Agreement constitutes our entire agreement and supersedes any prior agreements or understanding\nbetween you and the Other Party Releasees, except any confidentiality obligations referred to in Paragraph 10. The Parties acknowledge that they\neach enter into this Agreement without reliance on any written or oral promise or representation, other than those contained in this Agreement.\nIN WITNESS WHEREOF, this Confidential Severance Agreement and General Release has been executed by each of the listed parties\nas of the later date below.\nBrad N. Graves\nSignature: _______Brad Graves______________\nDate: _____December 20, 2007______________\nGenesis Energy, Inc.\nBy: ___Ross A. Benavides__________________\nRoss A. Benavides, Chief Financial Officer & General Counsel\nDate: ____December 20, 2007_______________\nGrant E. Sims\nSignature: ____Grant E. Sims_________________\nDate: ________December 20, 2007____________\nJoseph A. Blount, Jr.\nSignature: ________Joseph A. Blount, Jr.\nDate: ___________December 20, 2007_________	EX-10.1 2 ex10-1.htm EXHIBIT 10.1 CONFIDENTIAL SEVERANCE AGREEMENT AND GENERAL RELEASE\nCONFIDENTIAL SEVERANCE AGREEMENT AND GENERAIL REL.EASE\nThis Confidential Severance Agreement and General Release (“Agreement”), is made and entered into by and between the undersigned\nindividual Brad N. Graves (“Graves” or “you”) and Genesis Energy, Inc. (the “Company”), Grant E. Sims (“Sims”), and Joseph A. Blount, Jr.\n(“Blount”) (the signatories to this Agreement will be referred to collectively as the “Parties,” and the Parties other than you are the “Other\nParties”) as follows:\nWHEREAS, Sims, Blount and you were negotiating the definitive terms and conditions pursuant to which (i) the Company and its\naffiliates would, under certain circumstances, compensate a management team led by Sims (and to include you initially) for services rendered to\nthe Company, and (ii) how, and under what circumstances, Sims, Blount, you and any other members of that management team potentially might\nshare such compensation;\nWHEREAS, the Company employed you as Executive Vice President since on or about August 8, 2006;\nWHEREAS, the Company terminated your employment on or about November 26, 2007;\nWHEREAS, the Parties desire to amicably sever the employment and other business relationships that existed between them;\nWHEREAS, in consideration of the services rendered by you and the additional undertakings provided for herein, the Other Parties\nhave agreed to compensate you by having the Company provide the severance compensation described in this Agreement;\nWHEREAS, the Parties have agreed, without any Party admitting liability of any kind, to enter into this Agreement pursuant to which\neach and every claim and/or cause of action asserted or which could have been asserted by you against the Company, Sims, Blount and any of\ntheir affiliates will be forever and finally released; and\nWHEREAS, the Parties have read and understand the terms and provisions of this Agreement, and desire and intend to be bound by the\nterms and provisions of this Agreement applicable to such Party.\nNOW, THEREFORE, in consideration of the covenants and mutual promises and agreements herein contained, and other valuable\nconsideration, the sufficiency of which is hereby acknowledged, the Parties agree as follows:\n1. Release and Waiver Agreement. The Parties acknowledge and understand that this Agreement is a mutual release and\nwaiver contract and that this document is legally binding. You and the Other Parties understand that by signing this Agreement, each Party has\nread and understood each provision and is agreeing to all of the provisions set forth in the Agreement applicable to such Party.\n2. Claims Covered by Agreement. You and the Other Parties acknowledge and understand that this Agreement applies only\nto claims which accrue or have accrued prior to the date this Agreement is executed by you and the Other Parties.\n3. Termination of Employment and Other Arrangements. Your employment with the Company, and any other arrangement\n(including claims of ownership of any equity interest in any entity) you may have had with any Other Party or their affiliates, is terminated\neffective November 26, 2007.\n4. Severance Benefits. In exchange for the promises you make in this Agreement, the Company covenants and agrees to pay\nyou severance compensation in the lump sum amount of Two Million One Hundred Thousand and no/100 Dollars ($2,100,000) (the\n“Severance Compensation”). The Company’s payment of this Severance Compensation is made in connection with the severance of services\nand is subject to applicable federal, state, and local taxes and withholding. The Company and Graves agree to file all tax returns consistent\nwith the agreement that such payment is made in connection with the severance of services. This Severance Compensation is above and\nbeyond any compensation owed to you separate and apart from this Agreement, whether in connection with your employment with the\nCompany, your arrangement with Sims, Blount or any Other Party Releasee (defined below) or otherwise.\nYou will also receive continued paid medical and dental coverage for you and your dependents, at no cost to you, under the Consolidated\nOmnibus Budget Reconciliation Act of 1985 (“COBRA”) for 18 month(s) in the amount of $1,014.00 per month, provided that you make a valid\nCOBRA election. In the event you become eligible for coverage as a participant or beneficiary in an employee welfare benefit plan of another\ncompany at any time during the 18 month period following execution of this Agreement, the Company's obligation to pay monthly COBRA\npremiums for you shall cease. You agree to notify the Company immediately upon becoming eligible to participate (as participant or beneficiary)\nin another company's benefit plan. Employee welfare benefit plan as used herein includes but is not limited to benefit plans providing coverage\nfor medical, dental, and other healthcare related expenses.\nYou acknowledge that this Severance Compensation and continued medical and dental coverage are in addition to any monies or benefits to\nwhich you were already entitled. The Severance Compensation will be paid to you on the first business day following the expiration of the seven\nday (7) revocation period for this Agreement described in Paragraph 7c. below (but only if you do not revoke the Agreement during this period).\nThe continuation of your medical and dental coverage on the terms described above is also contingent on your not revoking this Agreement\nduring the seven (7) day revocation period.\n5. Release And Waiver By Other Parties. In consideration for (i) the conveyance of all rights, title and interests, if any, in and\nto the ownership interests in the Company or any other affiliates of the Other Parties, and any claims for any such interests, by Graves and (ii) the\ncovenants herein, the Other Parties agree to the following:\na. The Company hereby releases, acquits, defends, holds harmless, and agrees to indemnify Graves with respect to any\nclaims, losses, liabilities, obligations and causes of action, known or unknown, by the Company, Genesis Energy, L.P., their parents,\naffiliates and subsidiaries, including but not limited to Denbury Resources Inc. and its affiliates and subsidiaries, their respective\nofficers, directors, partners, managers, employees, stockholders, members, representatives and agents (collectively “the Company\nReleasees”), arising out of, connected with, or relating to: (i) Graves’ employment with the Company; (ii) Graves’ duties as an officer of\nthe Company; and (iii) any fiduciary duty owed by Graves to the Other Parties released herein. The Company represents and warrants\nthat no Company Releasee has assigned to any third party any claim involving Brad Graves or otherwise authorized any third party to\nassert any claim on its behalf against Graves.\nb. Each of Sims and Blount hereby release, acquit, defend, hold harmless, and agree to indemnify Graves with respect to\nany claims, losses, liabilities, obligations and causes of action, known or unknown, by such party and his respective affiliates other than\nthe Company Releasees, including his family, estate, heirs, beneficiaries, executors, and administrators (including their successors and\nassigns) and their respective officers, directors, partners, managers, employees, stockholders, members, representatives and agents\n(collectively, the “Sims Releasees”), arising out of, connected with, or relating to any duty owed by Graves to such Sims Releasees.\n6. Release and Waiver By Graves. In consideration for the Severance Compensation described in this Agreement, you agree to\nthe following:\na. You knowingly and voluntarily waive, release, acquit, defend, hold harmless, and agree to indemnify the Company\nReleasees and the Sims Releasees (collectively the “Other Party Releasees”), with respect to any and all claims, losses, liabilities,\nobligations and causes of action, known and unknown, by you and your affiliates, including your family, estate, heirs, beneficiaries,\nexecutors, and administrators (including their successors and assigns) and their respective officers, directors, partners, managers,\nemployees, stockholders, members, representatives and agents, including their successors and assigns (collectively, the “Graves\nReleasees”), arising out of, connected with, or relating to: (i) your employment or any arrangement you may have had with any Other\nParty Releasee; (ii) the Other Party Releasees’ refusal or failure to continue your employment or any arrangement you may have had\nwith any Other Party Releasee; or (iii) the termination of your employment or any arrangement you may have had with any Other Party\nReleasee, including, but not limited to, claims for compensation, commissions, bonuses, equity or member interests (including any\nclaim which might be made under the letter dated August 8, 2006, among the Company, Denbury Resources, Inc. and Sims),\ndistributions, distribution rights, stock options, other wages and benefits, breach of contract, wrongful termination, impairment of\neconomic opportunity, intentional infliction of emotional distress, claims based on personal injury, work-related accident, any breach of\nimplied or express covenant of good faith and fair dealing,\nviolation of public policy, or any other contract, tort or personal injury claim, or claim based on any municipal, state or federal statute,\nregulation or ordinance relating to employment, employment discrimination or retaliation, including Title VII of the Civil Rights Act of\n1964, as amended, 42 U.S.C. § 2000 et seq.; The Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981; The Civil Rights Act of\n1991, as amended, 42 U.S.C. § 1981a; The Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq.;\nAmericans With Disabilities Act, as amended, 42 U.S.C. § 12101 et seq.; Fair Labor Standards Act, as amended, 29 U.S.C. § 201, et\nseq.; Equal Pay Act, as amended, 29 U.S.C. §201 et seq.; National Labor Relations Act, as amended, 29 U.S.C. § 151 et seq.; Worker\nAdjustment and Retraining Notification Act, as amended, 29 U.S.C. § 2101 et seq., Employee Retirement Income Security Act of 1974,\nas amended, 29 U.S.C. § 1000 et seq.; Family and Medical Leave Act, as amended, 29 U.S.C. § 2601, et seq.; Texas Labor Code §\n21.001, et seq.; or any other statute, rule, regulation, ordinance, or common civil or other law, or judicial or administrative interpretation\nwhether promulgated by federal, state, local or other jurisdiction or political subdivision.\nb. You understand and agree that by signing this Agreement, you — on behalf of yourself and each Graves Releasee —\nagree to give up any right or entitlement you may have under federal, state or local law against the Other Party Releasees, concerning\nany events related to your employment or termination, or the Company’s failure to continue your employment or any other arrangement\nyou may have with any Other Party Releasee. This Agreement extinguishes any potential employment discrimination claims you may\nhave relating to your employment with the Company and the Company’s termination of your employment existing on the date you sign\nthis Agreement or any other arrangement you may have with any Other Party Releasee. Although this Agreement does not bar you from\nfiling a charge of discrimination with the Equal Employment Opportunity Commission or any state or local civil rights agency, by this\nAgreement you affirmatively, knowingly and voluntarily waive any claim or right to monetary or equitable relief from any such charge\nof discrimination.\nC. You further represent and warrant that you have not assigned to any third party any claim involving the Other Party\nReleasees or authorized any third party to assert on your behalf any claim against the Other Party Releasees. If a third party asserts a\nclaim against the Other Party Releasees on your behalf or includes you as a class member in any class action involving any claim, you\nagree to not accept any benefits or damages relating or arising out of such claim.\n. Consultation with Attorney, Review Period, and Revocation Period.\na. You are advised, and acknowledge that you have been advised, to consult with an attorney prior to executing this\nAgreement concerning the meaning, import, and legal significance of this Agreement. You acknowledge that you have read this\nAgreement, as signified by your signature hereto, and are voluntarily executing the same for the purposes and consideration herein\nexpressed.\nb. You acknowledge that you have been provided with a period of at least twenty-one (21) calendar days within which to\nconsider, review, and reflect upon the terms of this Agreement. Any discussions about or changes to the Agreement, whether material or\nimmaterial, do not restart the running of the 21-day period.\nC. You have seven (7) calendar days in which you may revoke this Agreement after you sign it. If you choose to revoke\nthe Agreement, please notify the General Counsel of the Company in writing prior to the expiration of seven (7) calendar days after you\nhave signed the Agreement.\nd. This Agreement shall not be effective until the expiration of seven (7) calendar days after you sign it without revoking\nit.\n8. General Partner Liability Insurance. You will continue to be insured or otherwise indemnified to the extent you are currently\ninsured under the terms of the Company’s General Liability Insurance Policy including Directors and Officers Coverage with respect to any and\nall claims, losses, liabilities, obligations and causes of action arising out of, connected with, or relating to: (i) your employment; or (ii) the\ntermination of your employment. To the extent tail coverage is necessary to maintain coverage as currently existing and reasonably available (but\nnot at a cost in excess of 125% of current premiums), Company shall acquire same at no expense to Graves.\n9. Confidentiality. You shall treat the terms of this Agreement as strictly confidential. You shall not disclose the terms of this\nAgreement to anyone other than your spouse, attorney, accountant or tax advisor, without the Company’s prior written approval, except as may\nbe required by law, or court order. If you receive a request pursuant to applicable law to disclose the existence or terms of this Agreement, you\nshall promptly notify each other Party to enable it to seek a protective order or other appropriate remedy. You agree to notify your spouse,\nattorney, accountant and tax advisor of the confidential nature of this Agreement.\nThe Parties may use this Agreement as evidence in a subsequent proceeding in which a Party alleges a breach of this Agreement. Other\nthan the exceptions set forth herein, the Parties agree they shall not voluntarily introduce this Agreement as evidence in any proceeding or in any\nlawsuit unless required by law or court order. The Parties agree that this confidentiality obligation is contractual and its terms are material to this\nAgreement.\n10. Confidential Information and Trade Secrets. You agree that you shall not, without the prior written consent of the Company,\ndirectly or indirectly, disclose, reveal or communicate, or cause or allow to be disclosed, revealed or communicated to any unauthorized person\nany of any Company Releasee’s confidential matters, proprietary information or trade secrets, including, without limitation, studies, plans,\nfinancial data, information regarding projects or development prospects, acquisition candidates, strategies or any other proprietary business\ninformation or plans you had knowledge of prior to the date of this Agreement, including the projects set forth on Exhibit A. You further agree\nnot to utilize any such confidential or proprietary information or trade secrets of Company for your benefit or the\nbenefit of others, including, without limitation, others in direct or indirect competition with the Other Parties and their affiliates. The obligations\nset forth in this Paragraph 10 shall be in addition to any other confidentiality obligations that you may have to any of the Other Party Releasees.\nThe Parties expressly acknowledge that Graves was hired by the Company due to his existing general industry knowledge and expertise. This\ncovenant is not intended to restrict Graves’ ability to use or leverage that knowledge or experience, only to prevent Graves from using\nconfidential information of the Other Parties and their affiliates.\nYou further acknowledge that the injury the Other Party Releasees will suffer in the event of your breach of any covenant or agreement\nset forth in Paragraphs 9, 10, 11 and 13 cannot be compensated by monetary damages alone.\n11. Company Property. You agree to return all Company property, equipment, documents and other tangible things, including\nkeys, pagers, corporate credit cards, and laptop or other computers, in accordance with the Company’s policies and rules, before the date on\nwhich this Agreement becomes effective. Company agrees to provide in writing an itemized list of any items it contends are Company property.\nYou agree to not destroy, alter, erase, or otherwise change any software, data, or other information belonging to the Company. You further agree\nthe Company may withhold from your Severance Compensation monies equal to the value of Company property, equipment and tangible things\nyou fail to return provided that no sums may be withheld if Company has not provided such itemized listing to Graves. In addition, you agree\nthat the Company may withhold from your Severance Compensation any monies you owe the Company, including but not limited to, charges to\nthe corporate credit card for which you did not submit a valid expense report, unused travel advances, salary draws, etc. Prior to withholding\nsums for such charges, Company must tender a written list of rejected expenses or charges, and provided Graves a reasonable opportunity to cure\nsuch defect.\n12. Cooperation. For a reasonable period after your termination, you agree to make yourself available and to reasonably cooperate\nwith each other Party in any future claims or lawsuits involving the Other Party Releasees where you have knowledge of the underlying facts or\nto affect the completion of your outstanding employment duties or the transfer of such duties. Each such Requesting Party agrees to reimburse\nyou for time you spend at such Party’s request at a rate per hour equivalent to what you earned with the Company immediately before your notice\nof termination. Any obligations performed to affect the completion or transfer of your duties shall be performed as an independent contractor, not\nas an employee. You will not be reimbursed if you are a named party in any claim or lawsuit for activities associated with your defense except to\nthe extent insurance or indemnity is available to other executives. All time spent cooperating with Company on its defense shall be reimbursed.\nIn addition, you agree not to voluntarily aid, assist or cooperate with any claimant or plaintiff or their attorneys or agents in any claim or lawsuit\ncommenced against the Other Party Releasees.\nNothing in this Agreement should be construed to prevent you from initiating or participating in any state of federal agency\nadministrative proceeding or from testifying at an administrative hearing, deposition, or in court in response to a lawful subpoena .\n13. Non-Solicitation. For one (1) year following the date of this Agreement, you agree not to directly or indirectly, on your own\nbehalf or on behalf of another person or entity, hire or solicit for hire any employees of the Company or any of its affiliates or in any manner\nattempt to influence or induce any employee of the Company or any of its affiliates to leave their employment.\n14. No Authority. As of your termination date, you shall have no authority to obligate the Company in any manner, and shall not\nenter into any contracts on the Company’s behalf. You shall not make any representation, warranty, or other statement, or take any action, that\nmay be construed by a third party to indicate that you have authority to obligate the Company or to enter into a contract on the Company’s\nbehalf.\n15. Public Statements. The Parties mutually agree not to make any untrue, misleading, or defamatory statements concerning any\nof Other Parties.\n16. Non-Admission of Wrongdoeing. This Agreement shall not in any way be construed as an admission of liability or as an\nadmission that any of the Other Party Releasees have acted wrongfully with respect to you. Each of the Other Party Releasees specifically denies\nand disclaims any such liability or wrongful acts.\n17. Reference Letters. If a prospective employer contacts the Company to obtain your employment information or a\nrecommendation, the Company will provide only your employment dates and job title, unless you authorize the Company in writing to provide\nadditional information.\n18. Knowing and Voluntary Agreement. You acknowledge and agree that after you received a copy of this Agreement: (i) you\nhave had an opportunity to review this Agreement and to consult an attorney before signing it; and (ii) you enter into the Agreement knowingly,\nvoluntarily and after any consultations with your attorney or other advisor as you deemed appropriate.\n19. Choice of I.aw and Venue. You and the Company agree that this Agreement shall be performed in Harris County, Texas and\nthat the laws of the State of Texas shall govern the enforceability, interpretation and legal effect of this Agreement. The Parties agree to submit to\nthe jurisdiction of the federal and state courts sitting in Harris County, Texas, for all purposes relating to the validity, interpretation, or\nenforcement of this Agreement, including, without limitation, any application for injunctive relief.\n20. Severability. The Company and you agree that, if any term of this Agreement shall be determined by a court to be void or\nunenforceable, the remaining provisions will remain effective and legally binding, and the void or unenforceable term shall be deemed not to be a\npart of this Agreement.\n21. Amendments. Any modification of this Agreement or additional obligation assumed by any Party in connection with this\nAgreement shall be binding only if evidenced in\nwriting signed by each Party or an authorized representative of each Party. Additionally, this Agreement cannot be changed or terminated orally,\nbut may be changed only through written addendum executed by all Parties.\n22, Remedies. Any material breach by a Party of the terms and conditions contained in this Agreement shall give the Other Parties\nthe right to discontinue the performance of any unperformed duties and obligations under this Agreement to the extent permitted by applicable\nlaw. If a Party breaches any term of the Agreement, any delay by another Party to enforce the Agreement shall not be deemed a waiver,\nacceptance, or acquiescence. No waiver shall bind a Party unless supported by consideration, executed in writing, and delivered to the first Party\nby an authorized representative.\n23. Effective Period. This Agreement is null and void if: (i) you fail to execute and return it within 21 calendar days of receipt; or\n(ii) you sign it within 21 calendar days, but revoke your execution within seven (7) calendar days after signing it.\n24. Entire Agreement. This Agreement constitutes our entire agreement and supersedes any prior agreements or understanding\nbetween you and the Other Party Releasees, except any confidentiality obligations referred to in Paragraph 10. The Parties acknowledge that they\neach enter into this Agreement without reliance on any written or oral promise or representation, other than those contained in this Agreement.\nIN WITNESS WHEREOF, this Confidential Severance Agreement and General Release has been executed by each of the listed parties\nas of the later date below.\nBrad N. Graves\nSignature: Brad Graves\nDate: December 20, 2007\nGenesis Energy, Inc.\nBy: Ross A. Benavides\nRoss A. Benavides, Chief Financial Officer & General Counsel\nDate: December 20, 2007\nGrant E. Sims\nSignature: Grant E. Sims\nDate: December 20, 2007\nJoseph A. Blount, Jr.\nSignature: Joseph A. Blount, Jr.\nDate: December 20, 2007	EX-10.1 2 ex10-1.htm EXHIBIT 10.1 CONFIDENTIAL SEVERANCE AGREEMENT AND GENERAL RELEASE\nCONFIDENTIAL SEVERANCE AGREEMENT AND GENERAL RELEASE\nThis Confidential Severance Agreement and General Release ("Agreement"), is made and entered into by and between the undersigned\nindividual Brad N. Graves ("Graves" or "you") and Genesis Energy, Inc. (the "Company"), Grant E. Sims ("Sims"), and Joseph A. Blount, Jr.\n("Blount") (the signatories to this Agreement will be referred to collectively as the "Parties," and the Parties other than you are the "Other\nParties") as follows:\nWHEREAS, Sims, Blount and you were negotiating the definitive terms and conditions pursuant to which (i) the Company and its\naffiliates would, under certain circumstances, compensate a management team led by Sims (and to include you initially) for services rendered to\nthe Company, and (ii) how, and under what circumstances, Sims, Blount, you and any other members of that management team potentially might\nshare such compensation;\nWHEREAS, the Company employed you as Executive Vice President since on or about August 8, 2006;\nWHEREAS, the Company terminated your employment on or about November 26, 2007;\nWHEREAS, the Parties desire to amicably sever the employment and other business relationships that existed between them;\nWHEREAS, in consideration of the services rendered by you and the additional undertakings provided for herein, the Other Parties\nhave agreed to compensate you by having the Company provide the severance compensation described in this Agreement;\nWHEREAS, the Parties have agreed, without any Party admitting liability of any kind, to enter into this Agreement pursuant to which\neach and every claim and/or cause of action asserted or which could have been asserted by you against the Company, Sims, Blount and any of\ntheir affiliates will be forever and finally released; and\nWHEREAS, the Parties have read and understand the terms and provisions of this Agreement, and desire and intend to be bound by the\nterms and provisions of this Agreement applicable to such Party.\nNOW, THEREFORE, in consideration of the covenants and mutual promises and agreements herein contained, and other valuable\nconsideration, the sufficiency of which is hereby acknowledged, the Parties agree as follows:\n1.\nRelease and Waiver Agreement. The Parties acknowledge and understand that this Agreement is a mutual release and\nwaiver contract and that this document is legally binding. You and the Other Parties understand that by signing this Agreement, each Party has\nread and understood each provision and is agreeing to all of the provisions set forth in the Agreement applicable to such Party.\n2.\nClaims Covered by Agreement. You and the Other Parties acknowledge and understand that this Agreement applies only\nto claims which accrue or have accrued prior to the date this Agreement is executed by you and the Other Parties.\n3.\nTermination of Employment and Other Arrangements. Your employment with the Company, and any other arrangement\n(including claims of ownership of any equity interest in any entity) you may have had with any Other Party or their affiliates, is terminated\neffective November 26, 2007.\n4.\nSeverance Benefits. In exchange for the promises you make in this Agreement, the Company covenants and agrees to pay\nyou severance compensation in the lump sum amount of Two Million One Hundred Thousand and no/100 Dollars ($2,100,000) (the\n"Severance Compensation"). The Company's payment of this Severance Compensation is made in connection with the severance of services\nand\nis\nsubject\nto\napplicable\nfederal,\nstate,\nand\nlocal\ntaxes\nand\nwithholding.\nThe\nCompany\nand\nGraves\nagree\nto\nfile\nall\ntax\nreturns\nconsistent\nwith the agreement that such payment is made in connection with the severance of services. This Severance Compensation is above and\nbeyond any compensation owed to you separate and apart from this Agreement, whether in connection with your employment with the\nCompany, your arrangement with Sims, Blount or any Other Party Releasee (defined below) or otherwise.\nYou will also receive continued paid medical and dental coverage for you and your dependents, at no cost to you, under the Consolidated\nOmnibus Budget Reconciliation Act of 1985 ("COBRA") for 18 month(s) in the amount of $1,014.00 per month, provided that you make a valid\nCOBRA election. In the event you become eligible for coverage as a participant or beneficiary in an employee welfare benefit plan of another\ncompany at any time during the 18 month period following execution of this Agreement, the Company's obligation to pay monthly COBRA\npremiums for you shall cease. You agree to notify the Company immediately upon becoming eligible to participate (as participant or beneficiary)\nin another company's benefit plan. Employee welfare benefit plan as used herein includes but is not limited to benefit plans providing coverage\nfor medical, dental, and other healthcare related expenses.\nYou\nacknowledge that this Severance Compensation and continued medical and dental coverage are in addition to any monies or benefits to\nwhich\nyou\nwere\nalready\nentitled.\nThe\nSeverance\nCompensation\nwill\nbe\npaid\nto\nyou\non\nthe\nfirst\nbusiness\nday\nfollowing\nthe\nexpiration\nof\nthe\nseven\nday (7) revocation period for this Agreement described in Paragraph 7c. below (but only if you do not revoke the Agreement during this period).\nThe continuation of your medical and dental coverage on the terms described above is also contingent on your not revoking this Agreement\nduring the seven (7) day revocation period.\n5.\nRelease And Waiver By Other Parties. In consideration for (i) the conveyance of all rights, title and interests, if any, in and\nto the ownership interests in the Company or any other affiliates of the Other Parties, and any claims for any such interests, by Graves and (ii) the\ncovenants herein, the Other Parties agree to the following:\na.\nThe Company hereby releases, acquits, defends, holds harmless, and agrees to indemnify Graves with respect to any\nclaims, losses, liabilities, obligations and causes of action, known or unknown, by the Company, Genesis Energy, L.P., their parents,\naffiliates and subsidiaries, including but not limited to Denbury Resources Inc. and its affiliates and subsidiaries, their respective\nofficers, directors, partners, managers, employees, stockholders, members, representatives and agents (collectively "the Company\nReleasees"), arising out of, connected with, or relating to: (i) Graves' employment with the Company; (ii) Graves' duties as an officer of\nthe Company; and (ili) any fiduciary duty owed by Graves to the Other Parties released herein. The Company represents and warrants\nthat no Company Releasee has assigned to any third party any claim involving Brad Graves or otherwise authorized any third party to\nassert any claim on its behalf against Graves.\nb.\nEach of Sims and Blount hereby release, acquit, defend, hold harmless, and agree to indemnify Graves with respect to\nany claims, losses, liabilities, obligations and causes of action, known or unknown, by such party and his respective affiliates other than\nthe Company Releasees, including his family, estate, heirs, beneficiaries, executors, and administrators (including their successors and\nassigns) and their respective officers, directors, partners, managers, employees, stockholders, members, representatives and\nagents\n(collectively, the "Sims Releasees"), arising out of, connected with, or relating to any duty owed by Graves to such Sims Releasees.\n6.\nRelease and Waiver By. Graves. In consideration for the Severance Compensation described in this Agreement, you agree\nto\nthe following:\na.\nYou knowingly and voluntarily waive, release, acquit, defend, hold harmless, and agree to indemnify the Company\nReleasees and the Sims Releasees (collectively the "Other Party Releasees"), with respect to any and all claims, losses, liabilities,\nobligations and causes of action, known and unknown, by you and your affiliates, including your family, estate, heirs, beneficiaries,\nexecutors, and administrators (including their successors and assigns) and their respective officers, directors, partners, managers,\nemployees, stockholders, members, representatives and agents, including their successors and assigns (collectively, the "Graves\nReleasees"), arising out of, connected with, or relating to: (i) your employment or any arrangement you may have had with any Other\nParty Releasee; (ii) the Other Party Releasees' refusal or failure to continue your employment or any arrangement you may have had\nwith any Other Party Releasee; or (iii) the termination of your employment or any arrangement you may have had with any Other Party\nReleasee, including, but not limited to, claims for compensation, commissions, bonuses, equity or member interests (including any\nclaim which might be made under the letter dated August 8, 2006, among the Company, Denbury Resources, Inc. and Sims),\ndistributions, distribution rights, stock options, other wages and benefits, breach of contract, wrongful termination, impairment of\neconomic opportunity, intentional infliction of emotional distress, claims based on personal injury, work-related accident, any breach of\nimplied or express covenant of good faith and fair dealing,\nviolation of public policy, or any other contract, tort or personal injury claim, or claim based on any municipal, state or federal statute,\nregulation or ordinance relating to employment, employment discrimination or retaliation, including Title VII of the Civil Rights Act of\n1964, as amended, 42 U.S.C. 8 2000 et seq.; The Civil Rights Act of 1866, as amended, 42 U.S.C. S 1981; The Civil Rights Act of\n1991, as amended, 42 U.S.C. 8 1981a; The Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. 8 621 et seq.;\nAmericans With Disabilities Act, as amended, 42 U.S.C. 8 12101 et seq.; Fair Labor Standards Act, as amended, 29 U.S.C. 8 201,\net\nseq.; Equal Pay Act, as amended, 29 U.S.C. 8201 et seq.; National Labor Relations Act, as amended, 29 U.S.C. 8 151 et seq.; Worker\nAdjustment and Retraining Notification Act, as amended, 29 U.S.C. S 2101 et seq., Employee Retirement Income Security Act of 1974,\nas amended, 29 U.S.C. 8 1000 et seq.; Family and Medical Leave Act, as amended, 29 U.S.C. 8 2601, et seq.; Texas Labor Code 8\n21.001, et seq.; or any other statute, rule, regulation, ordinance, or common civil or other law, or judicial or administrative interpretation\nwhether promulgated by federal, state, local or other jurisdiction or political subdivision.\nb.\nYou understand and agree that by signing this Agreement, you on behalf of yourself and each Graves Releasee\n-\nagree to give up any right or entitlement you may have under federal, state or local law against the Other Party Releasees, concerning\nany events related to your employment or termination, or the Company's failure to continue your employment or any other arrangement\nyou may have with any Other Party Releasee. This Agreement extinguishes any potential employment discrimination claims you may\nhave relating to your employment with the Company and the Company's termination of your employment existing on the date you sign\nthis Agreement or any other arrangement you may have with any Other Party Releasee. Although this Agreement does not bar you from\nfiling a charge of discrimination with the Equal Employment Opportunity Commission or any state or local civil rights agency, by this\nAgreement you affirmatively, knowingly and voluntarily waive any claim or right to monetary or equitable relief from any such charge\nof discrimination.\nC.\nYou further represent and warrant that you have not assigned to any third party any claim involving the Other Party\nReleasees or authorized any third party to assert on your behalf any claim against the Other Party Releasees. If a third party asserts a\nclaim against the Other Party Releasees on your behalf or includes you as a class member in any class action involving any claim, you\nagree to not accept any benefits or damages relating or arising out of such claim.\n7. Consultation with Attorney, Review Period, and Revocation Period.\na.\nYou are advised, and acknowledge that you have been advised, to consult with an attorney prior to executing this\nAgreement concerning the meaning, import, and legal significance of this Agreement. You acknowledge that you have read this\nAgreement, as signified by your signature hereto, and are voluntarily executing the same for the purposes and consideration herein\nexpressed.\nb.\nYou acknowledge that you have been provided with a period of at least twenty-one (21) calendar days within which to\nconsider, review, and reflect upon the terms of this Agreement. Any discussions about or changes to the Agreement, whether material or\nimmaterial, do not restart the running of the 21-day period.\nC.\nYou have seven (7) calendar days in which you may revoke this Agreement after you sign it. If you choose to revoke\nthe Agreement, please notify the General Counsel of the Company in writing prior to the expiration of seven (7) calendar days after you\nhave signed the Agreement.\nd.\nThis Agreement shall not be effective until the expiration of seven (7) calendar days after you sign it without revoking\nit.\n8.\nGeneral Partner Liability. Insurance. You will continue to be insured or otherwise indemnified to the extent you are currently\ninsured under the terms of the Company's General Liability Insurance Policy including Directors and Officers Coverage with respect to any and\nall claims, losses, liabilities, obligations and causes of action arising out of, connected with, or relating to: (i) your employment; or (ii) the\ntermination of your employment. To the extent tail coverage is necessary to maintain coverage as currently existing and reasonably available (but\nnot at a cost in excess of 125% of current premiums), Company shall acquire same at no expense to Graves.\n9.\nConfidentiality.. You shall treat the terms of this Agreement as strictly confidential. You shall not disclose the terms of this\nAgreement to anyone other than your spouse, attorney, accountant or tax advisor, without the Company's prior written approval, except as may\nbe required by law, or court order. If you receive a request pursuant to applicable law to disclose the existence or terms of this Agreement, you\nshall promptly notify each other Party to enable it to seek a protective order or other appropriate remedy. You agree to notify your spouse,\nattorney, accountant and tax advisor of the confidential nature of this Agreement.\nThe Parties may use this Agreement as evidence in a subsequent proceeding in which a Party alleges a breach of this Agreement. Other\nthan the exceptions set forth herein, the Parties agree they shall not voluntarily introduce this Agreement as evidence in any proceeding or in any\nlawsuit unless required by law or court order. The Parties agree that this confidentiality obligation is contractual and its terms are material to\nthis\nAgreement.\n10. Confidential Information and Trade Secrets. You agree that you shall not, without the prior written consent of the Company,\ndirectly or indirectly, disclose, reveal or communicate, or cause or allow to be disclosed, revealed or communicated to any unauthorized person\nany of any Company Releasee's confidential matters, proprietary information or trade secrets, including, without limitation, studies, plans,\nfinancial data, information regarding projects or development prospects, acquisition candidates, strategies or any other proprietary business\ninformation or plans you had knowledge of prior to the date of this Agreement, including the projects set forth on Exhibit A. You further agree\nnot to utilize any such confidential or proprietary information or trade secrets of Company for your benefit or the\nbenefit of others, including, without limitation, others in direct or indirect competition with the Other Parties and their affiliates. The obligations\nset forth in this Paragraph 10 shall be in addition to any other confidentiality obligations that you may have to any of the Other Party Releasees.\nThe Parties expressly acknowledge that Graves was hired by the Company due to his existing general industry knowledge and expertise. This\ncovenant is not intended to restrict Graves' ability to use or leverage that knowledge or experience, only to prevent Graves from using\nconfidential information of the Other Parties and their affiliates.\nYou further acknowledge that the injury the Other Party Releasees will suffer in the event of your breach of any covenant or agreement\nset forth in Paragraphs 9, 10, 11 and 13 cannot be compensated by monetary damages alone.\n11.\nCompany Property.. You agree to return all Company property, equipment, documents and other tangible things, including\nkeys, pagers, corporate credit cards, and laptop or other computers, in accordance with the Company's policies and rules, before the date on\nwhich this Agreement becomes effective. Company agrees to provide in writing an itemized list of any items it contends are Company property.\nYou\nagree to not destroy, alter, erase, or otherwise change any software, data, or other information belonging to the Company. You further agree\nthe Company may withhold from your Severance Compensation monies equal to the value of Company property, equipment and tangible things\nyou fail to return provided that no sums may be withheld if Company has not provided such itemized listing to Graves. In addition, you agree\nthat\nthe\nCompany\nmay\nwithhold\nfrom\nyour\nSeverance\nCompensation\nany\nmonies\nyou\nowe\nthe\nCompany,\nincluding\nbut\nnot\nlimited\nto,\ncharges\nto\nthe corporate credit card for which you did not submit a valid expense report, unused travel advances, salary draws, etc. Prior to withholding\nsums for such charges, Company must tender a written list of rejected expenses or charges, and provided Graves a reasonable opportunity to cure\nsuch defect.\n12.\nCooperation. For a reasonable period after your termination, you agree to make yourself available and to reasonably cooperate\nwith each other Party in any future claims or lawsuits involving the Other Party Releasees where you have knowledge of the underlying facts or\nto affect the completion of your outstanding employment duties or the transfer of such duties. Each such Requesting Party agrees to reimburse\nyou for time you spend at such Party's request at a rate per hour equivalent to what you earned with the Company immediately before your notice\nof termination. Any obligations performed to affect the completion or transfer of your duties shall be performed as an independent contractor, not\nas an employee. You will not be reimbursed if you are a named party in any claim or lawsuit for activities associated with your defense except\nto\nthe extent insurance or indemnity is available to other executives. All time spent cooperating with Company on its defense shall be reimbursed.\nIn addition, you agree not to voluntarily aid, assist or cooperate with any claimant or plaintiff or their attorneys or agents in any claim or lawsuit\ncommenced against the Other Party Releasees.\nNothing in this Agreement should be construed to prevent you from initiating or participating in any state of federal agency\nadministrative proceeding or from testifying at an administrative hearing, deposition, or in court in response to a lawful subpoena\n13.\nNon-Solicitation. For one (1) year following the date of this Agreement, you agree not to directly or indirectly, on your own\nbehalf or on behalf of another person or entity, hire or solicit for hire any employees of the Company or any of its affiliates or in any manner\nattempt to influence or induce any employee of the Company or any of its affiliates to leave their employment.\n14.\nNo Authority.. As of your termination date, you shall have no authority to obligate the Company in any manner, and shall not\nenter into any contracts on the Company's behalf. You shall not make any representation, warranty, or other statement, or take any action, that\nmay be construed by a third party to indicate that you have authority to obligate the Company or to enter into a contract on the Company's\nbehalf.\n15.\nPublic Statements. The Parties mutually agree not to make any untrue, misleading, or defamatory statements concerning any\nof Other Parties.\n16.\nNon-Admission of Wrongdoing. This Agreement shall not in any way be construed as an admission of liability or as an\nadmission that any of the Other Party Releasees have acted wrongfully with respect to you. Each of the Other Party Releasees specifically denies\nand disclaims any such liability or wrongful acts.\n17.\nReference Letters If a prospective employer contacts the Company to obtain your employment information or a\nrecommendation, the Company will provide only your employment dates and job title, unless you authorize the Company in writing to provide\nadditional information\n18.\nKnowing and Voluntary. Agreement. You acknowledge and agree that after you received a copy of this Agreement: (i) you\nhave had an opportunity to review this Agreement and to consult an attorney before signing it; and (ii) you enter into the Agreement knowingly,\nvoluntarily and after any consultations with your attorney or other advisor as you deemed appropriate.\n19.\nChoice of Law and Venue. You and the Company agree that this Agreement shall be performed in Harris County, Texas and\nthat the laws of the State of Texas shall govern the enforceability, interpretation and legal effect of this Agreement. The Parties agree to submit to\nthe jurisdiction of the federal and state courts sitting in Harris County, Texas, for all purposes relating to the validity, interpretation, or\nenforcement of this Agreement, including, without limitation, any application for injunctive relief.\n20.\nSeverability.. The Company and you agree that, if any term of this Agreement shall be determined by a court to be void or\nunenforceable, the remaining provisions will remain effective and legally binding, and the void or unenforceable term shall be deemed not to be a\npart of this Agreement.\n21.\nAmendments. Any modification of this Agreement or additional obligation assumed by any Party in connection with this\nAgreement shall be binding only if evidenced in\nwriting signed by each Party or an authorized representative of each Party. Additionally, this Agreement cannot be changed or terminated orally,\nbut may be changed only through written addendum executed by all Parties.\n22.\nRemedies. Any material breach by a Party of the terms and conditions contained in this Agreement shall give the Other Parties\nthe right to discontinue the performance of any unperformed duties and obligations under this Agreement to the extent permitted by applicable\nlaw. If a Party breaches any term of the Agreement, any delay by another Party to enforce the Agreement shall not be deemed a waiver,\nacceptance, or acquiescence. No waiver shall bind a Party unless supported by consideration, executed in writing, and delivered to the first Party\nby an authorized representative.\n23.\nEffective Period. This Agreement is null and void if: (i) you fail to execute and return it within 21 calendar days of receipt; or\n(ii) you sign it within 21 calendar days, but revoke your execution within seven (7) calendar days after signing it.\n24.\nEntire Agreement. This Agreement constitutes our entire agreement and supersedes any prior agreements or understanding\nbetween you and the Other Party Releasees, except any confidentiality obligations referred to in Paragraph 10. The Parties acknowledge that they\neach enter into this Agreement without reliance on any written or oral promise or representation, other than those contained in this Agreement.\nIN WITNESS WHEREOF, this Confidential Severance Agreement and General Release has been executed by each of the listed parties\nas of the later date below.\nBrad N. Graves\nSignature:\nBrad Graves\nDate:\nDecember 20, 2007\nGenesis Energy, Inc.\nBy:\nRoss A. Benavides\nRoss A. Benavides, Chief Financial Officer & General Counsel\nDate: December 20, 2007\nGrant E. Sims\nSignature:\nGrant E. Sims\nDate:\nDecember 20, 2007\nJoseph A. Blount, Jr.\nSignature:\nJoseph A. Blount, Jr.\nDate:\nDecember 20, 2007	EX-10.1 2 ex10-1.htm EXHIBIT 10.1 CONFIDENTIAL SEVERANCE AGREEMENT AND GENERAL RELEASE\nCONFIDENTIAL SEVERANCE AGREEMENT AND GENERAL RELEASE\nThis Confidential Severance Agreement and General Release (“Agreement”), is made and entered into by and between the undersigned\nindividual Brad N. Graves (“Graves” or “you”) and Genesis Energy, Inc. (the “Company”), Grant E. Sims (“Sims”), and Joseph A. Blount, Jr.\n(“Blount”) (the signatories to this Agreement will be referred to collectively as the “Parties,” and the Parties other than you are the “Other\nParties”) as follows:\nWHEREAS, Sims, Blount and you were negotiating the definitive terms and conditions pursuant to which (i) the Company and its\naffiliates would, under certain circumstances, compensate a management team led by Sims (and to include you initially) for services rendered to\nthe Company, and (ii) how, and under what circumstances, Sims, Blount, you and any other members of that management team potentially might\nshare such compensation;\nWHEREAS, the Company employed you as Executive Vice President since on or about August 8, 2006;\nWHEREAS, the Company terminated your employment on or about November 26, 2007;\nWHEREAS, the Parties desire to amicably sever the employment and other business relationships that existed between them;\nWHEREAS, in consideration of the services rendered by you and the additional undertakings provided for herein, the Other Parties\nhave agreed to compensate you by having the Company provide the severance compensation described in this Agreement;\nWHEREAS, the Parties have agreed, without any Party admitting liability of any kind, to enter into this Agreement pursuant to which\neach and every claim and/or cause of action asserted or which could have been asserted by you against the Company, Sims, Blount and any of\ntheir affiliates will be forever and finally released; and\nWHEREAS, the Parties have read and understand the terms and provisions of this Agreement, and desire and intend to be bound by the\nterms and provisions of this Agreement applicable to such Party.\nNOW, THEREFORE, in consideration of the covenants and mutual promises and agreements herein contained, and other valuable\nconsideration, the sufficiency of which is hereby acknowledged, the Parties agree as follows:\n1.\nRelease and Waiver Agreement. The Parties acknowledge and understand that this Agreement is a mutual release and\nwaiver contract and that this document is legally binding. You and the Other Parties understand that by signing this Agreement, each Party has\nread and understood each provision and is agreeing to all of the provisions set forth in the Agreement applicable to such Party.\n2.\nClaims Covered by Agreement. You and the Other Parties acknowledge and understand that this Agreement applies only\nto claims which accrue or have accrued prior to the date this Agreement is executed by you and the Other Parties.\n3.\nTermination of Employment and Other Arrangements. Your employment with the Company, and any other arrangement\n(including claims of ownership of any equity interest in any entity) you may have had with any Other Party or their affiliates, is terminated\neffective November 26, 2007.\n4.\nSeverance Benefits. In exchange for the promises you make in this Agreement, the Company covenants and agrees to pay\nyou severance compensation in the lump sum amount of Two Million One Hundred Thousand and no/100 Dollars ($2,100,000) (the\n“Severance Compensation”). The Company’s payment of this Severance Compensation is made in connection with the severance of services\nand is subject to applicable federal, state, and local taxes and withholding. The Company and Graves agree to file all tax returns consistent\nwith the agreement that such payment is made in connection with the severance of services. This Severance Compensation is above and\nbeyond any compensation owed to you separate and apart from this Agreement, whether in connection with your employment with the\nCompany, your arrangement with Sims, Blount or any Other Party Releasee (defined below) or otherwise.\nYou will also receive continued paid medical and dental coverage for you and your dependents, at no cost to you, under the Consolidated\nOmnibus Budget Reconciliation Act of 1985 (“COBRA”) for 18 month(s) in the amount of $1,014.00 per month, provided that you make a valid\nCOBRA election. In the event you become eligible for coverage as a participant or beneficiary in an employee welfare benefit plan of another\ncompany at any time during the 18 month period following execution of this Agreement, the Company's obligation to pay monthly COBRA\npremiums for you shall cease. You agree to notify the Company immediately upon becoming eligible to participate (as participant or beneficiary)\nin another company's benefit plan. Employee welfare benefit plan as used herein includes but is not limited to benefit plans providing coverage\nfor medical, dental, and other healthcare related expenses.\nYou acknowledge that this Severance Compensation and continued medical and dental coverage are in addition to any monies or benefits to\nwhich you were already entitled. The Severance Compensation will be paid to you on the first business day following the expiration of the seven\nday (7) revocation period for this Agreement described in Paragraph 7c. below (but only if you do not revoke the Agreement during this period).\nThe continuation of your medical and dental coverage on the terms described above is also contingent on your not revoking this Agreement\nduring the seven (7) day revocation period.\n5.\nRelease And Waiver By Other Parties. In consideration for (i) the conveyance of all rights, title and interests, if any, in and\nto the ownership interests in the Company or any other affiliates of the Other Parties, and any claims for any such interests, by Graves and (ii) the\ncovenants herein, the Other Parties agree to the following:\na.\nThe Company hereby releases, acquits, defends, holds harmless, and agrees to indemnify Graves with respect to any\nclaims, losses, liabilities, obligations and causes of action, known or unknown, by the Company, Genesis Energy, L.P., their parents,\naffiliates and subsidiaries, including but not limited to Denbury Resources Inc. and its affiliates and subsidiaries, their respective\nofficers, directors, partners, managers, employees, stockholders, members, representatives and agents (collectively “the Company\nReleasees”), arising out of, connected with, or relating to: (i) Graves’ employment with the Company; (ii) Graves’ duties as an officer of\nthe Company; and (iii) any fiduciary duty owed by Graves to the Other Parties released herein. The Company represents and warrants\nthat no Company Releasee has assigned to any third party any claim involving Brad Graves or otherwise authorized any third party to\nassert any claim on its behalf against Graves.\nb.\nEach of Sims and Blount hereby release, acquit, defend, hold harmless, and agree to indemnify Graves with respect to\nany claims, losses, liabilities, obligations and causes of action, known or unknown, by such party and his respective affiliates other than\nthe Company Releasees, including his family, estate, heirs, beneficiaries, executors, and administrators (including their successors and\nassigns) and their respective officers, directors, partners, managers, employees, stockholders, members, representatives and agents\n(collectively, the “Sims Releasees”), arising out of, connected with, or relating to any duty owed by Graves to such Sims Releasees.\n6.\nRelease and Waiver By Graves. In consideration for the Severance Compensation described in this Agreement, you agree to\nthe following:\na.\nYou knowingly and voluntarily waive, release, acquit, defend, hold harmless, and agree to indemnify the Company\nReleasees and the Sims Releasees (collectively the “Other Party Releasees”), with respect to any and all claims, losses, liabilities,\nobligations and causes of action, known and unknown, by you and your affiliates, including your family, estate, heirs, beneficiaries,\nexecutors, and administrators (including their successors and assigns) and their respective officers, directors, partners, managers,\nemployees, stockholders, members, representatives and agents, including their successors and assigns (collectively, the “Graves\nReleasees”), arising out of, connected with, or relating to: (i) your employment or any arrangement you may have had with any Other\nParty Releasee; (ii) the Other Party Releasees’ refusal or failure to continue your employment or any arrangement you may have had\nwith any Other Party Releasee; or (iii) the termination of your employment or any arrangement you may have had with any Other Party\nReleasee, including, but not limited to, claims for compensation, commissions, bonuses, equity or member interests (including any\nclaim which might be made under the letter dated August 8, 2006, among the Company, Denbury Resources, Inc. and Sims),\ndistributions, distribution rights, stock options, other wages and benefits, breach of contract, wrongful termination, impairment of\neconomic opportunity, intentional infliction of emotional distress, claims based on personal injury, work-related accident, any breach of\nimplied or express covenant of good faith and fair dealing,\nviolation of public policy, or any other contract, tort or personal injury claim, or claim based on any municipal, state or federal statute,\nregulation or ordinance relating to employment, employment discrimination or retaliation, including Title VII of the Civil Rights Act of\n1964, as amended, 42 U.S.C . § 2000 et seq.; The Civil Rights Act of 1866, as amended, 42 U.S.C . § 1981; The Civil Rights Act of\n1991, as amended, 42 U.S .C . § 1981a; The Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C . § 621 et seq.;\nAmericans With Disabilities Act, as amended, 42 U.S.C . § 12101 et seq.; Fair Labor Standards Act, as amended, 29 U.S.C . § 201, et\nseq.; Equal Pay Act, as amended, 29 U.S.C. §201 et seq.; National Labor Relations Act, as amended, 29 U.S.C . § 151 et seq.; Worker\nAdjustment and Retraining Notification Act, as amended, 29 U.S.C . § 2101 et seq., Employee Retirement Income Security Act of 1974,\nas amended, 29 U.S.C. § 1000 et seq.; Family and Medical Leave Act, as amended, 29 U.S.C . § 2601, et seq.; Texas Labor Code §\n21.001, et seq.; or any other statute, rule, regulation, ordinance, or common civil or other law, or judicial or administrative interpretation\nwhether promulgated by federal, state, local or other jurisdiction or political subdivision.\nb.\nYou understand and agree that by signing this Agreement, you — on behalf of yourself and each Graves Releasee —\nagree to give up any right or entitlement you may have under federal, state or local law against the Other Party Releasees, concerning\nany events related to your employment or termination, or the Company’s failure to continue your employment or any other arrangement\nyou may have with any Other Party Releasee. This Agreement extinguishes any potential employment discrimination claims you may\nhave relating to your employment with the Company and the Company’s termination of your employment existing on the date you sign\nthis Agreement or any other arrangement you may have with any Other Party Releasee. Although this Agreement does not bar you from\nfiling a charge of discrimination with the Equal Employment Opportunity Commission or any state or local civil rights agency, by this\nAgreement you affirmatively, knowingly and voluntarily waive any claim or right to monetary or equitable relief from any such charge\nof discrimination.\nc.\nYou further represent and warrant that you have not assigned to any third party any claim involving the Other Party\nReleasees or authorized any third party to assert on your behalf any claim against the Other Party Releasees. If a third party asserts a\nclaim against the Other Party Releasees on your behalf or includes you as a class member in any class action involving any claim, you\nagree to not accept any benefits or damages relating or arising out of such claim.\n7. Consultation with Attorney, Review Period, and Revocation Period.\na.\nYou are advised, and acknowledge that you have been advised, to consult with an attorney prior to executing this\nAgreement concerning the meaning, import, and legal significance of this Agreement. You acknowledge that you have read this\nAgreement, as signified by your signature hereto, and are voluntarily executing the same for the purposes and consideration herein\nexpressed.\nb.\nYou acknowledge that you have been provided with a period of at least twenty-one (21) calendar days within which to\nconsider, review, and reflect upon the terms of this Agreement. Any discussions about or changes to the Agreement, whether material or\nimmaterial, do not restart the running of the 21-day period.\nc.\nYou have seven (7) calendar days in which you may revoke this Agreement after you sign it. If you choose to revoke\nthe Agreement, please notify the General Counsel of the Company in writing prior to the expiration of seven (7) calendar days after you\nhave signed the Agreement.\nd.\nThis Agreement shall not be effective until the expiration of seven (7) calendar days after you sign it without revoking\nit.\n8.\nGeneral Partner Liability Insurance. You will continue to be insured or otherwise indemnified to the extent you are currently\ninsured under the terms of the Company’s General Liability Insurance Policy including Directors and Officers Coverage with respect to any and\nall claims, losses, liabilities, obligations and causes of action arising out of, connected with, or relating to: (i) your employment; or (ii) the\ntermination of your employment. To the extent tail coverage is necessary to maintain coverage as currently existing and reasonably available (but\nnot at a cost in excess of 125% of current premiums), Company shall acquire same at no expense to Graves.\n9.\nConfidentiality. You shall treat the terms of this Agreement as strictly confidential. You shall not disclose the terms of this\nAgreement to anyone other than your spouse, attorney, accountant or tax advisor, without the Company’s prior written approval, except as may\nbe required by law, or court order. If you receive a request pursuant to applicable law to disclose the existence or terms of this Agreement, you\nshall promptly notify each other Party to enable it to seek a protective order or other appropriate remedy. You agree to notify your spouse,\nattorney, accountant and tax advisor of the confidential nature of this Agreement.\nThe Parties may use this Agreement as evidence in a subsequent proceeding in which a Party alleges a breach of this Agreement. Other\nthan the exceptions set forth herein, the Parties agree they shall not voluntarily introduce this Agreement as evidence in any proceeding or in any\nlawsuit unless required by law or court order. The Parties agree that this confidentiality obligation is contractual and its terms are material to this\nAgreement.\n10. Confidential Information and Trade Secrets. You agree that you shall not, without the prior written consent of the Company,\ndirectly or indirectly, disclose, reveal or communicate, or cause or allow to be disclosed, revealed or communicated to any unauthorized person\nany of any Company Releasee’s confidential matters, proprietary information or trade secrets, including, without limitation, studies, plans,\nfinancial data, information regarding projects or development prospects, acquisition candidates, strategies or any other proprietary business\ninformation or plans you had knowledge of prior to the date of this Agreement, including the projects set forth on Exhibit A. You further agree\nnot to utilize any such confidential or proprietary information or trade secrets of Company for your benefit or the\nbenefit of others, including, without limitation, others in direct or indirect competition with the Other Parties and their affiliates. The obligations\nset forth in this Paragraph 10 shall be in addition to any other confidentiality obligations that you may have to any of the Other Party Releasees.\nThe Parties expressly acknowledge that Graves was hired by the Company due to his existing general industry knowledge and expertise. This\ncovenant is not intended to restrict Graves’ ability to use or leverage that knowledge or experience, only to prevent Graves from using\nconfidential information of the Other Parties and their affiliates.\nYou further acknowledge that the injury the Other Party Releasees will suffer in the event of your breach of any covenant or agreement\nset forth in Paragraphs 9, 10, 11 and 13 cannot be compensated by monetary damages alone.\n11.\nCompany Property. You agree to return all Company property, equipment, documents and other tangible things, including\nkeys, pagers, corporate credit cards, and laptop or other computers, in accordance with the Company’s policies and rules, before the date on\nwhich this Agreement becomes effective. Company agrees to provide in writing an itemized list of any items it contends are Company property.\nYou agree to not destroy, alter, erase, or otherwise change any software, data, or other information belonging to the Company. You further agree\nthe Company may withhold from your Severance Compensation monies equal to the value of Company property, equipment and tangible things\nyou fail to return provided that no sums may be withheld if Company has not provided such itemized listing to Graves. In addition, you agree\nthat the Company may withhold from your Severance Compensation any monies you owe the Company, including but not limited to, charges to\nthe corporate credit card for which you did not submit a valid expense report, unused travel advances, salary draws, etc. Prior to withholding\nsums for such charges, Company must tender a written list of rejected expenses or charges, and provided Graves a reasonable opportunity to cure\nsuch defect.\n12.\nCooperation. For a reasonable period after your termination, you agree to make yourself available and to reasonably cooperate\nwith each other Party in any future claims or lawsuits involving the Other Party Releasees where you have knowledge of the underlying facts or\nto affect the completion of your outstanding employment duties or the transfer of such duties. Each such Requesting Party agrees to reimburse\nyou for time you spend at such Party’s request at a rate per hour equivalent to what you earned with the Company immediately before your notice\nof termination. Any obligations performed to affect the completion or transfer of your duties shall be performed as an independent contractor, not\nas an employee. You will not be reimbursed if you are a named party in any claim or lawsuit for activities associated with your defense except to\nthe extent insurance or indemnity is available to other executives. All time spent cooperating with Company on its defense shall be reimbursed.\nIn addition, you agree not to voluntarily aid, assist or cooperate with any claimant or plaintiff or their attorneys or agents in any claim or lawsuit\ncommenced against the Other Party Releasees.\nNothing in this Agreement should be construed to prevent you from initiating or participating in any state of federal agency\nadministrative proceeding or from testifying at an administrative hearing, deposition, or in court in response to a lawful subpoena .\n13.\nNon-Solicitation. For one (1) year following the date of this Agreement, you agree not to directly or indirectly, on your own\nbehalf or on behalf of another person or entity, hire or solicit for hire any employees of the Company or any of its affiliates or in any manner\nattempt to influence or induce any employee of the Company or any of its affiliates to leave their employment.\n14.\nNo Authority. As of your termination date, you shall have no authority to obligate the Company in any manner, and shall not\nenter into any contracts on the Company’s behalf. You shall not make any representation, warranty, or other statement, or take any action, that\nmay be construed by a third party to indicate that you have authority to obligate the Company or to enter into a contract on the Company’s\nbehalf.\n15.\nPublic Statements. The Parties mutually agree not to make any untrue, misleading, or defamatory statements concerning any\nof Other Parties.\n16.\nNon-Admission of Wrongdoing. This Agreement shall not in any way be construed as an admission of liability or as an\nadmission that any of the Other Party Releasees have acted wrongfully with respect to you. Each of the Other Party Releasees specifically denies\nand disclaims any such liability or wrongful acts.\n17.\nReference Letters. If a prospective employer contacts the Company to obtain your employment information or a\nrecommendation, the Company will provide only your employment dates and job title, unless you authorize the Company in writing to provide\nadditional information.\n18.\nKnowing and Voluntary Agreement. You acknowledge and agree that after you received a copy of this Agreement: (i) you\nhave had an opportunity to review this Agreement and to consult an attorney before signing it; and (ii) you enter into the Agreement knowingly,\nvoluntarily and after any consultations with your attorney or other advisor as you deemed appropriate.\n19.\nChoice of Law and Venue. You and the Company agree that this Agreement shall be performed in Harris County, Texas and\nthat the laws of the State of Texas shall govern the enforceability, interpretation and legal effect of this Agreement. The Parties agree to submit to\nthe jurisdiction of the federal and state courts sitting in Harris County, Texas, for all purposes relating to the validity, interpretation, or\nenforcement of this Agreement, including, without limitation, any application for injunctive relief.\n20.\nSeverability. The Company and you agree that, if any term of this Agreement shall be determined by a court to be void or\nunenforceable, the remaining provisions will remain effective and legally binding, and the void or unenforceable term shall be deemed not to be a\npart of this Agreement.\n21.\nAmendments. Any modification of this Agreement or additional obligation assumed by any Party in connection with this\nAgreement shall be binding only if evidenced in\nwriting signed by each Party or an authorized representative of each Party. Additionally, this Agreement cannot be changed or terminated orally,\nbut may be changed only through written addendum executed by all Parties.\n22.\nRemedies. Any material breach by a Party of the terms and conditions contained in this Agreement shall give the Other Parties\nthe right to discontinue the performance of any unperformed duties and obligations under this Agreement to the extent permitted by applicable\nlaw. If a Party breaches any term of the Agreement, any delay by another Party to enforce the Agreement shall not be deemed a waiver,\nacceptance, or acquiescence. No waiver shall bind a Party unless supported by consideration, executed in writing, and delivered to the first Party\nby an authorized representative.\n23.\nEffective Period. This Agreement is null and void if: (i) you fail to execute and return it within 21 calendar days of receipt; or\n(ii) you sign it within 21 calendar days, but revoke your execution within seven (7) calendar days after signing it.\n24.\nEntire Agreement. This Agreement constitutes our entire agreement and supersedes any prior agreements or understanding\nbetween you and the Other Party Releasees, except any confidentiality obligations referred to in Paragraph 10. The Parties acknowledge that they\neach enter into this Agreement without reliance on any written or oral promise or representation, other than those contained in this Agreement.\nIN WITNESS WHEREOF, this Confidential Severance Agreement and General Release has been executed by each of the listed parties\nas of the later date below.\nBrad N. Graves\nSignature: _______Brad Graves______________\nDate: _____December 20, 2007______________\nGenesis Energy, Inc.\nBy: ___Ross A. Benavides__________________\nRoss A. Benavides, Chief Financial Officer & General Counsel\nDate: ____December 20, 2007_______________\nGrant E. Sims\nSignature: ____Grant E. Sims_________________\nDate: ________December 20, 2007____________\nJoseph A. Blount, Jr.\nSignature: ________Joseph A. Blount, Jr.\nDate: ___________December 20, 2007_________
66520c735c79ca61b3e399c3ce4ea290.pdf	effective_date jurisdiction party term	EX-99 .2 5 confidentiality.htm CONFIDENTIALITY AND NDA\nExhibit 99.2\nMay 6, 2009\nRe: CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nMerge Healthcare Incorporated (“Recipient”) has requested certain information from etrials Worldwide, Inc. (the “Company”) in\nconnection with a possible transaction involving the Company (a “Possible Transaction”). In particular, Recipient has requested financial and other\ninformation concerning the Company (the “Evaluation Material”). The “Evaluation Material,” whether furnished to Recipient before or after the\ndate of this Confidentiality Agreement, includes this Confidentiality Agreement and any negotiations between the Company and the Recipient\nregarding the Possible Transaction together with all analyses, compilations, studies or other documents or records prepared by the Company, the\nRecipient or their Representatives (as hereafter defined) which contain or otherwise reflect or are generated from such information, as well as all\ncopies and other reproductions thereof, whether oral, in writing or stored or maintained in or by electronic, magnetic or other means, media or\ndevices, but does not include information which (i) was or becomes generally available to the public other than as a result of a disclosure by the\nRecipient or its directors, officers, employees, shareholders, agents or advisors (all of the foregoing collectively referred to as “Representatives”), or\nthe respective Representatives of the Recipient’s agents or advisors, (ii) was or becomes available to Recipient on a non-confidential basis from a\nsource other than the Company or its Representatives, provided that such source is not bound by a confidentiality agreement with the Company or\notherwise prohibited from transmitting the information to Recipient or (iii) was within Recipient’s possession prior to its being furnished by or on\nbehalf of the Company, provided that the source of such information was not bound by a confidentiality agreement with the Company in respect\nthereof or otherwise prohibited from transmitting the information to the Recipient.\nIn consideration of Recipient being furnished with any Evaluation Material, Recipient agrees as follows:\n1.\nRecipient acknowledges the competitive value and confidential nature of the Evaluation Material and the damage that\ncould result to the Company if information contained therein is disclosed to any third party.\n2.\nThe Evaluation Material will be used solely for the purpose of evaluating a Possible Transaction. Recipient and its\nRepresentatives will keep the Evaluation Material confidential and will not disclose any of such Evaluation Material to any third party without the\nprior written consent of the Company; provided, however, that, subject to Paragraph 5 hereof, any of such Evaluation Material may be disclosed (a)\nto the extent required by applicable law or legal process, or (b) to Recipient’s Representatives who need to know the information contained in the\nEvaluation Material for the purpose of evaluating a Possible Transaction and who are informed of the confidential and non-public nature of the\nEvaluation Material and are directed and agree to treat such Evaluation Material confidentially. In any event, Recipient is responsible for any\nimproper use by its Representatives of the Evaluation Material.\n3.\nThe Company makes no representations or warranties as to the accuracy or completeness of any Evaluation Material,\nand has no liability to Recipient resulting from the use of the Evaluation Material supplied by the Company or any of its Representatives except as\nmay be provided in a definitive agreement in connection with a Possible Transaction.\n4.\nUpon the written request of the Company, all Evaluation Materials (and all copies, extracts or other reproductions in\nwhole or in part thereof) of the Company, whether in writing or stored or maintained in or by electronic, magnetic or other means, media or devices,\nmust be returned or, at the election of Recipient, destroyed by an authorized officer and not retained in any form or for any reason.\n5.\nNotwithstanding anything to the contrary set forth herein, in the event that Recipient or its Representatives are\nrequested or become legally compelled (by oral questions, interrogatories, request for information or documents, subpoena, civil investigative\ndemand or similar process) to disclose any of the Evaluation Material or take any other action prohibited hereby, the Recipient will promptly notify\nthe Company in writing so that the Company may seek a protective order or other appropriate remedy and/or so that it may waive compliance with\nthe provisions of this Confidentiality Agreement. In the event that such protective order or other remedy is not sought or obtained or that the\ncompliance with the provisions of this Confidentiality Agreement is waived, only that portion of the Evaluation Material requested may be\nfurnished or only such action which is legally required may be taken, and Recipient shall exercise its best efforts to obtain assurance that\nconfidential treatment will be accorded such Evaluation Material.\n6.\nBy accepting the Evaluation Material, Recipient acknowledges and agrees that certain information contained in this\nagreement and the Evaluation Material might constitute material, non-public information. As a result, Recipient agrees that it may not purchase,\nsell or otherwise trade in the Company’s securities or any derivatives thereof until such time as Recipient, based on the advice of counsel,\ndetermines that the Evaluation material does not constitute material, non-public information.\n7.\nThe Recipient may not propose to any person or entity other than the Company any transaction between the Recipient\nand the Company and/or its security holders involving the Company’s securities or security holders unless the Company requests in writing that\nRecipient makes such a proposal. Recipient may not acquire, or assist, advise or encourage any other persons in acquiring, directly or indirectly, (1)\ncontrol of the Company, including but not limited to acquiring control by nominating person(s) to serve on the Company’s board of directors, (2)\nmore than 2% of any outstanding class of securities of the Company or any voting or economic interest therein, or (3) substantially all of the\nCompany’s business or assets, in each case, for a period of two years from the date of this Confidentiality Agreement unless the Company consents\nin advance in writing to such acquisition. The Company is entitled to equitable relief, including injunction, in the event of any breach of the\nprovisions of this paragraph.\n8.\nThis agreement is governed by and must be construed in accordance with the laws of the State of Delaware applicable\nto contracts made and to be performed entirely within such State without giving effect to the principles of conflict of laws thereof. The courts of the\nState of Delaware and the United States District Courts located in Delaware have jurisdiction with respect to any dispute or controversy arising\nunder or in connection with this agreement. In view of the confidential nature of the Evaluation Material and the serious and irreparable damage\nthat will result if any of the Evaluation Material is disclosed to or used by any person or entity in violation of this agreement, the Company is\nentitled to equitable relief to enjoin any breach or threatened breach of this agreement. Recipient’s obligations hereunder are in addition to, and not\nexclusive of, any and all of Recipient’s other obligations and duties to the Company, whether express or implied, in fact or in law. Any failure by\nthe Company to enforce Recipient’s strict performance of any provision of this agreement does not constitute a waiver of the Company’s right to\nsubsequently enforce that or any other provision.\n9.\nThis agreement may be executed via facsimile transmission and may be executed in separate counterparts, each of\nwhich is an original and which together constitutes a single instrument.\nPlease acknowledge your agreement to the foregoing by countersigning this letter in the place provided below and returning it to the attention of the\nundersigned.\nVery truly yours,\nETRIALS WORLDWIDE, INC.\nBy: /s/ M. Denis Connaghan\nPresident and Chief Executive Officer\nAGREED TO AND ACCEPTED:\nMERGE HEALTHCARE INCORPORATED\nBy: /s/ Ann Mayberry-French\nName: Ann Mayberry-French\nTitle: V.P., General Counsel & Secretary\nDate:\nMay 6, 2009	EX-99.2 5 confidentiality.htm CONFIDENTIALITY AND NDA\nExhibit 99.2\nMay 6, 2009\nRe: CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nMerge Healthcare Incorporated (“Recipient”) has requested certain information from etrials Worldwide, Inc. (the “Company”) in\nconnection with a possible transaction involving the Company (a “Possible Transaction”). In particular, Recipient has requested financial and other\ninformation concerning the Company (the “Evaluation Material”). The “Evaluation Material,” whether furnished to Recipient before or after the\ndate of this Confidentiality Agreement, includes this Confidentiality Agreement and any negotiations between the Company and the Recipient\nregarding the Possible Transaction together with all analyses, compilations, studies or other documents or records prepared by the Company, the\nRecipient or their Representatives (as hereafter defined) which contain or otherwise reflect or are generated from such information, as well as all\ncopies and other reproductions thereof, whether oral, in writing or stored or maintained in or by electronic, magnetic or other means, media or\ndevices, but does not include information which (i) was or becomes generally available to the public other than as a result of a disclosure by the\nRecipient or its directors, officers, employees, shareholders, agents or advisors (all of the foregoing collectively referred to as “Representatives™), or\nthe respective Representatives of the Recipient’s agents or advisors, (ii) was or becomes available to Recipient on a non-confidential basis from a\nsource other than the Company or its Representatives, provided that such source is not bound by a confidentiality agreement with the Company or\notherwise prohibited from transmitting the information to Recipient or (iii) was within Recipient’s possession prior to its being furnished by or on\nbehalf of the Company, provided that the source of such information was not bound by a confidentiality agreement with the Company in respect\nthereof or otherwise prohibited from transmitting the information to the Recipient.\nIn consideration of Recipient being furnished with any Evaluation Material, Recipient agrees as follows:\n1. Recipient acknowledges the competitive value and confidential nature of the Evaluation Material and the damage that\ncould result to the Company if information contained therein is disclosed to any third party.\n2. The Evaluation Material will be used solely for the purpose of evaluating a Possible Transaction. Recipient and its\nRepresentatives will keep the Evaluation Material confidential and will not disclose any of such Evaluation Material to any third party without the\nprior written consent of the Company; provided, however, that, subject to Paragraph 5 hereof, any of such Evaluation Material may be disclosed (a)\nto the extent required by applicable law or legal process, or (b) to Recipient’s Representatives who need to know the information contained in the\nEvaluation Material for the purpose of evaluating a Possible Transaction and who are informed of the confidential and non-public nature of the\nEvaluation Material and are directed and agree to treat such Evaluation Material confidentially. In any event, Recipient is responsible for any\nimproper use by its Representatives of the Evaluation Material.\n3. The Company makes no representations or warranties as to the accuracy or completeness of any Evaluation Material,\nand has no liability to Recipient resulting from the use of the Evaluation Material supplied by the Company or any of its Representatives except as\nmay be provided in a definitive agreement in connection with a Possible Transaction.\n4. Upon the written request of the Company, all Evaluation Materials (and all copies, extracts or other reproductions in\nwhole or in part thereof) of the Company, whether in writing or stored or maintained in or by electronic, magnetic or other means, media or devices,\nmust be returned or, at the election of Recipient, destroyed by an authorized officer and not retained in any form or for any reason.\n5. Notwithstanding anything to the contrary set forth herein, in the event that Recipient or its Representatives are\nrequested or become legally compelled (by oral questions, interrogatories, request for information or documents, subpoena, civil investigative\ndemand or similar process) to disclose any of the Evaluation Material or take any other action prohibited hereby, the Recipient will promptly notify\nthe Company in writing so that the Company may seek a protective order or other appropriate remedy and/or so that it may waive compliance with\nthe provisions of this Confidentiality Agreement. In the event that such protective order or other remedy is not sought or obtained or that the\ncompliance with the provisions of this Confidentiality Agreement is waived, only that portion of the Evaluation Material requested may be\nfurnished or only such action which is legally required may be taken, and Recipient shall exercise its best efforts to obtain assurance that\nconfidential treatment will be accorded such Evaluation Material.\n6. By accepting the Evaluation Material, Recipient acknowledges and agrees that certain information contained in this\nagreement and the Evaluation Material might constitute material, non-public information. As a result, Recipient agrees that it may not purchase,\nsell or otherwise trade in the Company’s securities or any derivatives thereof until such time as Recipient, based on the advice of counsel,\ndetermines that the Evaluation material does not constitute material, non-public information.\n7. The Recipient may not propose to any person or entity other than the Company any transaction between the Recipient\nand the Company and/or its security holders involving the Company’s securities or security holders unless the Company requests in writing that\nRecipient makes such a proposal. Recipient may not acquire, or assist, advise or encourage any other persons in acquiring, directly or indirectly, (1)\ncontrol of the Company, including but not limited to acquiring control by nominating person(s) to serve on the Company’s board of directors, (2)\nmore than 2% of any outstanding class of securities of the Company or any voting or economic interest therein, or (3) substantially all of the\nCompany’s business or assets, in each case, for a period of two years from the date of this Confidentiality Agreement unless the Company consents\nin advance in writing to such acquisition. The Company is entitled to equitable relief, including injunction, in the event of any breach of the\nprovisions of this paragraph.\n8. This agreement is governed by and must be construed in accordance with the laws of the State of Delaware applicable\nto contracts made and to be performed entirely within such State without giving effect to the principles of conflict of laws thereof. The courts of the\nState of Delaware and the United States District Courts located in Delaware have jurisdiction with respect to any dispute or controversy arising\nunder or in connection with this agreement. In view of the confidential nature of the Evaluation Material and the serious and irreparable damage\nthat will result if any of the Evaluation Material is disclosed to or used by any person or entity in violation of this agreement, the Company is\nentitled to equitable relief to enjoin any breach or threatened breach of this agreement. Recipient’s obligations hereunder are in addition to, and not\nexclusive of, any and all of Recipient’s other obligations and duties to the Company, whether express or implied, in fact or in law. Any failure by\nthe Company to enforce Recipient’s strict performance of any provision of this agreement does not constitute a waiver of the Company’s right to\nsubsequently enforce that or any other provision.\n9. This agreement may be executed via facsimile transmission and may be executed in separate counterparts, each of\nwhich is an original and which together constitutes a single instrument.\nPlease acknowledge your agreement to the foregoing by countersigning this letter in the place provided below and returning it to the attention of the\nundersigned.\nVery truly yours,\nETRIALS WORLDWIDE, INC.\nBy:_/s/ M. Denis Connaghan\nPresident and Chief Executive Officer\nAGREED TO AND ACCEPTED:\nMERGE HEALTHCARE INCORPORATED\nBy:_/s/ Ann Mayberry-French\nName: Ann Mayberry-French\nTitle: V.P., General Counsel & Secretary\nDate: May 6, 2009	EX-99.2 5 confidentiality.htm CONFIDENTIALITY AND NDA\nExhibit 99.2\nMay 6, 2009\nRe: CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nMerge Healthcare Incorporated ("Recipient") has requested certain information from etrials Worldwide, Inc. (the "Company") in\nconnection with a possible transaction involving the Company (a "Possible Transaction"). In particular, Recipient has requested financial and other\ninformation concerning the Company (the "Evaluation Material"). The "Evaluation Material," whether furnished to Recipient before or after the\ndate\nof\nthis\nConfidentiality Agreement, includes this Confidentiality Agreement and any negotiations between the Company and the Recipient\nregarding the Possible Transaction together with all analyses, compilations, studies or other documents or records prepared by the Company, the\nRecipient or their Representatives (as hereafter defined) which contain or otherwise reflect or are generated from such information, as well as\nall\ncopies\nand\nother reproductions thereof, whether oral, in writing or stored or maintained in or by electronic, magnetic or other means, media\nor\ndevices, but does not include information which (i) was or becomes generally available to the public other than as a result of a disclosure by the\nRecipient or its directors, officers, employees, shareholders, agents or advisors (all of the foregoing collectively referred to as "Representatives"), or\nthe\nrespective\nRepresentatives of the Recipient's agents or advisors, (ii) was or becomes available to Recipient on a non-confidential basis from\na\nsource other than the Company or its Representatives, provided that such source is not bound by a confidentiality agreement with the Company or\notherwise prohibited from transmitting the information to Recipient or (iii) was within Recipient's possession prior to its being furnished by or on\nbehalf of the Company, provided that the source of such information was not bound by a confidentiality agreement with the Company in respect\nthereof or otherwise prohibited from transmitting the information to the Recipient.\nIn consideration of Recipient being furnished with any Evaluation Material, Recipient agrees as follows:\n1.\nRecipient acknowledges the competitive value and confidential nature of the Evaluation Material and the damage that\ncould result to the Company if information contained therein is disclosed to any third party.\n2.\nThe Evaluation Material will be used solely for the purpose of evaluating a Possible Transaction. Recipient and its\nRepresentatives will keep the Evaluation Material confidential and will not disclose any of such Evaluation Material to any third party without the\nprior written consent of the Company; provided, however, that, subject to Paragraph 5 hereof, any of such Evaluation Material may be disclosed (a)\nto the extent required by applicable law or legal process, or (b) to Recipient's Representatives who need to know the information contained in the\nEvaluation Material for the purpose of evaluating a Possible Transaction and who are informed of the confidential and non-public nature of the\nEvaluation Material and are directed and agree to treat such Evaluation Material confidentially. In any event, Recipient is responsible for any\nimproper use by its Representatives of the Evaluation Material.\n3.\nThe Company makes no representations or warranties as to the accuracy or completeness of any Evaluation Material,\nand has no liability to Recipient resulting from the use of the Evaluation Material supplied by the Company or any of its Representatives except as\nmay be provided in a definitive agreement in connection with a Possible Transaction.\n4.\nUpon the written request of the Company, all Evaluation Materials (and all copies, extracts or other reproductions in\nwhole or in part thereof) of the Company, whether in writing or stored or maintained in or by electronic, magnetic or other means, media or devices,\nmust be returned or, at the election of Recipient, destroyed by an authorized officer and not retained in any form or for any reason.\n5.\nNotwithstanding anything to the contrary set forth herein, in the event that Recipient or its Representatives are\nrequested or become legally compelled (by oral questions, interrogatories, request for information or documents, subpoena, civil investigative\ndemand\nor\nsimilar\nprocess)\nto\ndisclose\nany\nof\nthe\nEvaluation\nMaterial\nor\ntake\nany\nother\naction\nprohibited\nhereby,\nthe\nRecipient\nwill\npromptly\nnotify\nthe Company in writing so that the Company may seek a protective order or other appropriate remedy and/or so that it may waive compliance with\nthe provisions of this Confidentiality Agreement. In the event that such protective order or other remedy is not sought or obtained or that the\ncompliance with the provisions of this Confidentiality Agreement is waived, only that portion of the Evaluation Material requested may be\nfurnished or only such action which is legally required may be taken, and Recipient shall exercise its best efforts to obtain assurance that\nconfidential treatment will be accorded such Evaluation Material.\n6.\nBy accepting the Evaluation Material, Recipient acknowledges and agrees that certain information contained in this\nagreement and the Evaluation Material might constitute material, non-public information. As a result, Recipient agrees that it may not purchase,\nsell or otherwise trade in the Company's securities or any derivatives thereof until such time as Recipient, based on the advice of counsel,\ndetermines that the Evaluation material does not constitute material, non-public information.\n7.\nThe Recipient may not propose to any person or entity other than the Company any transaction between the Recipient\nand the Company and/or its security holders involving the Company's securities or security holders unless the Company requests in writing that\nRecipient makes such a proposal. Recipient may not acquire, or assist, advise or encourage any other persons in acquiring, directly or indirectly, (1)\ncontrol of the Company, including but not limited to acquiring control by nominating person(s) to serve on the Company's board of directors, (2)\nmore than 2% of any outstanding class of securities of the Company or any voting or economic interest therein, or (3) substantially all of the\nCompany's\nbusiness\nor\nassets,\nin\neach\ncase,\nfor\na\nperiod\nof\ntwo\nyears\nfrom\nthe\ndate\nof\nthis\nConfidentiality\nAgreement\nunless\nthe\nCompany\nconsents\nin advance in writing to such acquisition. The Company is entitled to equitable relief, including injunction, in the event of any breach of the\nprovisions of this paragraph.\n8.\nThis agreement is governed by and must be construed in accordance with the laws of the State of Delaware applicable\nto contracts made and to be performed entirely within such State without giving effect to the principles of conflict of laws thereof. The courts of the\nState of Delaware and the United States District Courts located in Delaware have jurisdiction with respect to any dispute or controversy arising\nunder or in connection with this agreement. In view of the confidential nature of the Evaluation Material and the serious and irreparable damage\nthat will result if any of the Evaluation Material is disclosed to or used by any person or entity in violation of this agreement, the Company is\nentitled to equitable relief to enjoin any breach or threatened breach of this agreement. Recipient's obligations hereunder are in addition to, and not\nexclusive of, any and all of Recipient's other obligations and duties to the Company, whether express or implied, in fact or in law. Any failure by\nthe Company to enforce Recipient's strict performance of any provision of this agreement does not constitute a waiver of the Company's right\nto\nsubsequently enforce that or any other provision.\n9.\nThis agreement may be executed via facsimile transmission and may be executed in separate counterparts, each of\nwhich is an original and which together constitutes a single instrument.\nPlease acknowledge your agreement to the foregoing by countersigning this letter in the place provided below and returning it to the attention of the\nundersigned.\nVery truly yours,\nETRIALS WORLDWIDE, INC.\nBy: /s/ M. Denis Connaghan\nPresident and Chief Executive Officer\nAGREED TO AND ACCEPTED:\nMERGE HEALTHCARE INCORPORATED\nBy: /s/ Ann Mayberry-French\nName: Ann Mayberry-French\nTitle: V.P., General Counsel & Secretary\nDate:\nMay 6, 2009	EX-99 .2 5 confidentiality.htm CONFIDENTIALITY AND NDA\nExhibit 99.2\nMay 6, 2009\nRe: CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nMerge Healthcare Incorporated (“Recipient”) has requested certain information from etrials Worldwide, Inc. (the “Company”) in\nconnection with a possible transaction involving the Company (a “Possible Transaction”). In particular, Recipient has requested financial and other\ninformation concerning the Company (the “Evaluation Material”). The “Evaluation Material,” whether furnished to Recipient before or after the\ndate of this Confidentiality Agreement, includes this Confidentiality Agreement and any negotiations between the Company and the Recipient\nregarding the Possible Transaction together with all analyses, compilations, studies or other documents or records prepared by the Company, the\nRecipient or their Representatives (as hereafter defined) which contain or otherwise reflect or are generated from such information, as well as all\ncopies and other reproductions thereof, whether oral, in writing or stored or maintained in or by electronic, magnetic or other means, media or\ndevices, but does not include information which (i) was or becomes generally available to the public other than as a result of a disclosure by the\nRecipient or its directors, officers, employees, shareholders, agents or advisors (all of the foregoing collectively referred to as “Representatives”), or\nthe respective Representatives of the Recipient’s agents or advisors, (ii) was or becomes available to Recipient on a non-confidential basis from a\nsource other than the Company or its Representatives, provided that such source is not bound by a confidentiality agreement with the Company or\notherwise prohibited from transmitting the information to Recipient or (iii) was within Recipient’s possession prior to its being furnished by or on\nbehalf of the Company, provided that the source of such information was not bound by a confidentiality agreement with the Company in respect\nthereof or otherwise prohibited from transmitting the information to the Recipient.\nIn consideration of Recipient being furnished with any Evaluation Material, Recipient agrees as follows:\n1.\nRecipient acknowledges the competitive value and confidential nature of the Evaluation Material and the damage that\ncould result to the Company if information contained therein is disclosed to any third party.\n2.\nThe Evaluation Material will be used solely for the purpose of evaluating a Possible Transaction. Recipient and its\nRepresentatives will keep the Evaluation Material confidential and will not disclose any of such Evaluation Material to any third party without the\nprior written consent of the Company; provided, however, that, subject to Paragraph 5 hereof, any of such Evaluation Material may be disclosed (a)\nto the extent required by applicable law or legal process, or (b) to Recipient’s Representatives who need to know the information contained in the\nEvaluation Material for the purpose of evaluating a Possible Transaction and who are informed of the confidential and non-public nature of the\nEvaluation Material and are directed and agree to treat such Evaluation Material confidentially. In any event, Recipient is responsible for any\nimproper use by its Representatives of the Evaluation Material.\n3.\nThe Company makes no representations or warranties as to the accuracy or completeness of any Evaluation Material,\nand has no liability to Recipient resulting from the use of the Evaluation Material supplied by the Company or any of its Representatives except as\nmay be provided in a definitive agreement in connection with a Possible Transaction.\n4.\nUpon the written request of the Company, all Evaluation Materials (and all copies, extracts or other reproductions in\nwhole or in part thereof) of the Company, whether in writing or stored or maintained in or by electronic, magnetic or other means, media or devices,\nmust be returned or, at the election of Recipient, destroyed by an authorized officer and not retained in any form or for any reason.\n5.\nNotwithstanding anything to the contrary set forth herein, in the event that Recipient or its Representatives are\nrequested or become legally compelled (by oral questions, interrogatories, request for information or documents, subpoena, civil investigative\ndemand or similar process) to disclose any of the Evaluation Material or take any other action prohibited hereby, the Recipient will promptly notify\nthe Company in writing so that the Company may seek a protective order or other appropriate remedy and/or so that it may waive compliance with\nthe provisions of this Confidentiality Agreement. In the event that such protective order or other remedy is not sought or obtained or that the\ncompliance with the provisions of this Confidentiality Agreement is waived, only that portion of the Evaluation Material requested may be\nfurnished or only such action which is legally required may be taken, and Recipient shall exercise its best efforts to obtain assurance that\nconfidential treatment will be accorded such Evaluation Material.\n6.\nBy accepting the Evaluation Material, Recipient acknowledges and agrees that certain information contained in this\nagreement and the Evaluation Material might constitute material, non-public information. As a result, Recipient agrees that it may not purchase,\nsell or otherwise trade in the Company’s securities or any derivatives thereof until such time as Recipient, based on the advice of counsel,\ndetermines that the Evaluation material does not constitute material, non-public information.\n7.\nThe Recipient may not propose to any person or entity other than the Company any transaction between the Recipient\nand the Company and/or its security holders involving the Company’s securities or security holders unless the Company requests in writing that\nRecipient makes such a proposal. Recipient may not acquire, or assist, advise or encourage any other persons in acquiring, directly or indirectly, (1)\ncontrol of the Company, including but not limited to acquiring control by nominating person(s) to serve on the Company’s board of directors, (2)\nmore than 2% of any outstanding class of securities of the Company or any voting or economic interest therein, or (3) substantially all of the\nCompany’s business or assets, in each case, for a period of two years from the date of this Confidentiality Agreement unless the Company consents\nin advance in writing to such acquisition. The Company is entitled to equitable relief, including injunction, in the event of any breach of the\nprovisions of this paragraph.\n8.\nThis agreement is governed by and must be construed in accordance with the laws of the State of Delaware applicable\nto contracts made and to be performed entirely within such State without giving effect to the principles of conflict of laws thereof. The courts of the\nState of Delaware and the United States District Courts located in Delaware have jurisdiction with respect to any dispute or controversy arising\nunder or in connection with this agreement. In view of the confidential nature of the Evaluation Material and the serious and irreparable damage\nthat will result if any of the Evaluation Material is disclosed to or used by any person or entity in violation of this agreement, the Company is\nentitled to equitable relief to enjoin any breach or threatened breach of this agreement. Recipient’s obligations hereunder are in addition to, and not\nexclusive of, any and all of Recipient’s other obligations and duties to the Company, whether express or implied, in fact or in law. Any failure by\nthe Company to enforce Recipient’s strict performance of any provision of this agreement does not constitute a waiver of the Company’s right to\nsubsequently enforce that or any other provision.\n9.\nThis agreement may be executed via facsimile transmission and may be executed in separate counterparts, each of\nwhich is an original and which together constitutes a single instrument.\nPlease acknowledge your agreement to the foregoing by countersigning this letter in the place provided below and returning it to the attention of the\nundersigned.\nVery truly yours,\nETRIALS WORLDWIDE, INC.\nBy: /s/ M. Denis Connaghan\nPresident and Chief Executive Officer\nAGREED TO AND ACCEPTED:\nMERGE HEALTHCARE INCORPORATED\nBy: /s/ Ann Mayberry-French\nName: Ann Mayberry-French\nTitle: V.P., General Counsel & Secretary\nDate:\nMay 6, 2009
67801b8a31a2ed7664b85235352eb346.pdf	effective_date jurisdiction party	Exhibit 10.52\nRESTRICTIVE COVENANT AND CONFIDENTIALITY AGREEMENT\nIn exchange for the mutual promises and consideration set forth below, this Restrictive Covenant and Confidentiality\nAgreement (“Agreement”) is entered into by and between the Federal Home Loan Mortgage Corporation (“Freddie Mac”\nor “Company”) and Peter Federico (“Executive”), effective as of March 1, 2006.\nI. Definitions\nThe following terms shall have the meanings indicated when used in this Agreement.\nA. Competitor: The following entities, and their respective parents, successors, subsidiaries, and affiliates are\ncompetitors: (i) Fannie Mae (ii) all Federal Home Loan Banks (including the Office of Finance); and (iii) such other\nentities to which Executive and the Company may agree in writing from time-to-time.\nB. Confidential Information: Information or materials in written, oral, magnetic, digital, computer, photographic, optical,\nelectronic, or other form, whether now existing or developed or created during the period of Executive’s employment\nwith Freddie Mac, that constitutes trade secrets and/or proprietary or confidential information. This information includes,\nbut is not limited to: (i) all information marked Proprietary or Confidential; (ii) information concerning the components,\ncapabilities, and attributes of Freddie Mac’s business plans, methods, and strategies; (iii) information relating to tactics,\nplans, or strategies concerning shareholders, investors, pricing, investment, marketing, sales, trading, funding, hedging,\nmodeling, sales and risk management; (iv) financial or tax information and analyses, including but not limited to,\ninformation concerning Freddie Mac’s capital structure and tax or financial planning; (v) confidential information about\nFreddie Mac’s customers, borrowers, employees, or others; (vi) pricing and quoting information, policies, procedures,\nand practices; (vii) confidential customer lists; (viii) proprietary algorithms; (ix) confidential contract terms;\n(x) confidential information concerning Freddie Mac’s policies, procedures, and practices or the way in which Freddie\nMac does business; (xi) proprietary or confidential data bases, including their structure and content; (xii) proprietary\nFreddie Mac business software, including its design, specifications and documentation; (xiii) information about Freddie\nMac products, programs, and services which has not yet been made public; (xiv) confidential information about Freddie\nMac’s dealings with third parties, including dealers, customers, vendors, and regulators; and/or (xv) confidential\ninformation belonging to third parties to which Executive received access in connection with Executive’s employment\nwith Freddie Mac. Confidential Information does not include general skills, experience, or knowledge acquired in\nconnection with Executive’s employment with Freddie Mac that otherwise are generally known to the public or within\nthe industry or trade in which Freddie Mac operates.\nRestrictive Covenant and Confidentiality Agreement for Peter Federico\nPage2of6\nII. Non-Competition\nExecutive recognizes that as a result of Executive’s employment with Freddie Mac, Executive has access to and\nknowledge of critically sensitive Confidential Information, the improper disclosure or use of which would result in grave\ncompetitive harm to Freddie Mac. Therefore, Executive agrees that during Executive’s employment with Freddie Mac,\nand for the twelve (12) months immediately following termination of Executive’s employment for any reason, Executive\nwill not consider offers of employment from, seek or accept employment with, or otherwise directly or indirectly provide\nprofessional services to any Competitor. Executive acknowledges and agrees that this covenant has unique, substantial\nand immeasurable value to Freddie Mac, that Executive has sufficient skills to provide a livelihood for Executive while\nthis covenant remains in force, and that this covenant will not interfere with Executive’s ability to work consistent with\nExecutive’s experience, training and education. This non-competition covenant applies regardless of whether Executive’s\nemployment is terminated by Executive, by Freddie Mac, or by a joint decision.\nIf Executive is a licensed lawyer, this non-competition covenant shall be interpreted in a manner consistent with any rule\napplicable to a legal licensed professional in the jurisdiction(s) of Executive’s licensure or registration that concerns the\nExecutive's employment as counsel with, or provisions of legal services to, a Competitor.\nIII. Non-Solicitation and Non-Recruitment\nDuring Executive’s employment with Freddie Mac and for a period of twelve (12) months after Executive’s termination\ndate, Executive will not solicit or recruit, attempt to solicit or recruit or assist another in soliciting or recruiting any\nFreddie Mac managerial employee (including manager-level, Director-level, or officer-level employee) with whom\nExecutive worked, or any employee whom Executive directly or indirectly supervised at Freddie Mac, to leave the\nemployee’s employment with Freddie Mac for purposes of employment or for the rendering of professional services.\nThis prohibition against solicitation does not apply if Freddie Mac has notified the employee being solicited that his/her\nemployment with the Company will be terminated pursuant to a corporate reorganization or reduction-in-force.\nIf Executive is a licensed lawyer, this non-solicitation covenant shall be interpreted in a manner consistent with any rule\napplicable to a licensed legal professional in the jurisdiction(s) of Executive’s licensure or registration.\nIV. Treatment of Confidential Information\nA. Non-Disclosure. Executive recognizes that Freddie Mac is engaged in an extremely competitive business and that, in\nthe course of performing Executive’s job duties, Executive will have access to and gain knowledge about Confidential\nInformation. Executive further recognizes the importance of carefully protecting this Confidential Information in order\nfor Freddie Mac to compete successfully. Therefore, Executive agrees\nRestrictive Covenant and Confidentiality Agreement for Peter Federico\nPage3of6\nthat Executive will neither divulge Confidential Information to any persons, including to other Freddie Mac employees\nwho do not have a Freddie Mac business-related need to know, nor make use of the Confidential Information for the\nExecutive’s own benefit or for the benefit of anyone else other than Freddie Mac. Executive further agrees to take all\nreasonable precautions to prevent the disclosure of Confidential Information to unauthorized persons or entities, and to\ncomply with all Company policies, procedures, and instructions regarding the treatment of such information.\nB. Return of Materials. Executive agrees that upon termination of Executive’s employment with Freddie Mac for any\nreason whatsoever, Executive will deliver to Executive’s immediate supervisor all tangible materials embodying\nConfidential Information, including, but not limited to, any documentation, records, listings, notes, files, data, sketches,\nmemoranda, models, accounts, reference materials, samples, machine-readable media, computer disks, tapes, and\nequipment which in any way relate to Confidential Information, whether developed by Executive or not. Executive\nfurther agrees not to retain any copies of any materials embodying Confidential Information.\nC. Post-Termination Obligations. Executive agrees that after the termination of Executive’s employment for any reason,\nExecutive will not use in any way whatsoever, nor disclose any Confidential Information learned or obtained in\nconnection with Executive’s employment with Freddie Mac without first obtaining the written permission of the Vice\nPresident of Human Capital Management. Executive further agrees that, in order to assure the continued confidentiality\nof the Confidential Information, Freddie Mac may correspond with Executive’s future employers to advise them\ngenerally of Executive’s exposure to and knowledge of Confidential Information, and Executive’s obligations and\nresponsibilities regarding the Confidential Information. Executive understands and agrees that any such contact may\ninclude a request for assurance and confirmation from such employer(s) that Executive will not disclose Confidential\nInformation to such employer(s), nor will such employer(s) permit any use whatsoever of the Confidential Information.\nTo enable Freddie Mac to monitor compliance with the obligations imposed by this Agreement, Executive further agrees\nto inform in writing Freddie Mac’s Executive Vice President of Human Resources of the identity of Executive’s\nsubsequent employer(s) and Executive’s prospective job title and responsibilities prior to beginning employment.\nExecutive agrees that this notice requirement shall remain in effect for twelve (12) months following the termination of\nExecutive’s Freddie Mac employment.\nRestrictive Covenant and Confidentiality Agreement for Peter Federico\nPage4of6\nD. Ability to Enforce Agreement and Assist Government Investigations. Nothing in this Agreement prohibits or\notherwise restricts you from: (1) making any disclosure of information required by law; (2) assisting any regulatory or\nlaw enforcement agency or legislative body to the extent you maintain a legal right to do so notwithstanding this\nAgreement; (3) filing, testifying, participating in or otherwise assisting in a proceeding relating to the alleged violation of\nany federal, state, or local law, regulation, or rule, to the extent you maintain a legal right to do so notwithstanding this\nAgreement; or (4) filing, testifying, participating in or otherwise assisting the Securities and Exchange Commission or\nany other proper authority in a proceeding relating to allegations of fraud.\nV. Consideration Given to Executive\nIn exchange for Executive agreeing to be bound by this Agreement, Freddie Mac agrees to provide Executive with the\nfollowing consideration, each of which itself is adequate for Executive's agreement to be bound by the provisions of this\nAgreement:\nA. Long-Term Incentive Grant. Executive will receive a 2006 long-term incentive grant pursuant to the terms that the\nCompensation and Human Resources Committee of the Freddie Mac Board of Directors approved on or about March 3,\n2006; and/or\nB. Employment. Executive will be employed by Freddie Mac as Senior Vice President; and\nAdditional Consideration. If Executive currently is subject to another Restrictive Covenant and Confidentiality\nAgreement that provides for any additional consideration in the event of termination, this Agreement shall not negate\nsuch additional form of consideration.\nVI. Reservation of Rights\nExecutive agrees that nothing in this Agreement constitutes a contract or commitment by Freddie Mac to continue\nExecutive’s employment in any job position for any period of time, nor does anything in this Agreement limit in any way\nFreddie Mac’s right to terminate Executive’s employment at any time for any reason.\nVII. Previous Agreements\nExcept as otherwise stated herein, this Agreement supercedes all previous agreements between Executive and Freddie\nMac which bear the title of “Confidentiality and Restrictive Covenant Agreement,” and/or “Restrictive Covenant and\nConfidentiality Agreement.”\nVIII. Enforcement\nA. Executive acknowledges that Executive may be subject to discipline, up to and including termination of employment,\nfor Executive’s breach or threat of breach of any\nRestrictive Covenant and Confidentiality Agreement for Peter Federico\nPage5of6\nprovision of this Agreement.\nB. Executive agrees that irreparable injury will result to Freddie Mac’s business interests in the event of breach or\nthreatened breach of this Agreement, the full extent of Freddie Mac’s damages will be impossible to ascertain, and\nmonetary damages will not be an adequate remedy for Freddie Mac. Therefore, Executive agrees that in the event of a\nbreach or threat of breach of any provision(s) of this Agreement, Freddie Mac, in addition to any other relief available,\nshall be entitled to temporary, preliminary, and permanent equitable relief to restrain any such breach or threat of breach\nby Executive and all persons acting for and/or in concert with Executive, without the necessity of posting bond or\nsecurity, which Executive expressly waives.\nC. Executive agrees that each of Executive’s obligations specified in this Agreement is a separate and independent\ncovenant, and that all of Executive’s obligations set forth herein shall survive any termination, for any reason, of\nExecutive’s Freddie Mac employment. To the extent that any provision of this Agreement is determined by a court of\ncompetent jurisdiction to be unenforceable because it is overbroad, that provision shall be limited and enforced to the\nextent permitted by applicable law. Should any provision of this Agreement be declared or determined by any court of\ncompetent jurisdiction to be unenforceable or invalid under applicable law, the validity of the remaining obligations will\nnot be affected thereby and only the unenforceable or invalid obligation will be deemed not to be a part of this\nAgreement.\nD. This Agreement is governed by, and will be construed in accordance with, the laws of the Commonwealth of\nVirginia, without regard to its or any other jurisdiction’s conflict-of-law provisions. Executive agrees that any action\nrelated to or arising out of this Agreement shall be brought exclusively in the United States District Court for the Eastern\nDistrict of Virginia, and Executive hereby irrevocably consents to personal jurisdiction and venue in such court and to\nservice of process by United States Mail or express courier service in any such action.\nE. If any dispute(s) arise(s) between Freddie Mac and Executive with respect to any matter which is the subject of this\nAgreement, the prevailing party in such dispute(s) shall be entitled to recover from the other party all of its costs and\nexpenses, including its reasonable attorneys’ fees.\nExecutive has been advised to discuss all aspects of this Agreement with Executive’s private attorney. Executive\nacknowledges that Executive has carefully read and understands the terms and provisions of this Agreement and\nthat they are reasonable. Executive signs this Agreement voluntarily and accepts all obligations contained in this\nAgreement in exchange for the consideration to be given to Executive as outlined above, which Executive\nacknowledges is adequate and satisfactory, and which Executive further acknowledges Freddie Mac is not\notherwise obligated to provide to Executive. Neither Freddie Mac nor its agents, representatives, Executives,\nofficers or employees have made any representations to Executive concerning the terms or effects of this\nAgreement, other than those contained in this Agreement.\nRestrictive Covenant and Confidentiality Agreement for Peter Federico\nPage6of6\nBy: /s/ Peter J. Federico\nDate: March 17, 2006\nPeter Federico\nBy: /s/ Paul George\nDate: March 24, 2006\nPaul George\nExecutive Vice President – Human Resources	Exhibit 10.52\nRESTRICTIVE COVENANT AND CONFIDENTIALITY AGREEMENT\nIn exchange for the mutual promises and consideration set forth below, this Restrictive Covenant and Confidentiality\nAgreement (”A greement”) is entered into by and between the Federal Home Loan Mortgage Corporation (”Freddie Mac”\nor ”Company”) and Peter Federico (”Executive”), effective as of March 1, 2006.\n1. Definitions\nThe following terms shall have the meanings indicated when used in this Agreement.\nA. C ompetitor: The following entities, and their respective parents, successors, subsidiaries, and affiliates are\ncompetitors: (i) Fannie Mae (ii) all Federal Home Loan Banks (including the Office of Finance) ,- and (iii) such other\nentities to which Executive and the Company may agree in writing from time-to-time.\nB. Confidential Information: Information or materials in written, oral, magnetic, digital, computer, photographic, optical,\nelectronic, or other form, whether now existing or developed or created during the period of Executive’s employment\nwith Freddie Mac, that constitutes trade secrets and/or proprietary or confidential information. This information includes,\nbut is not limited to: (i) all information marked Proprietary or Confidential,- (ii) information concerning the components,\ncapabilities, and attributes of Freddie Mac’s business plans, methods, and strategies; (iii) information relating to tactics,\nplans, or strategies concerning shareholders, investors, pricing, investment, marketing, sales, trading, funding, hedging,\nmodeling, sales and risk management,- (iv) financial or tax information and analyses, including but not limited to,\ninformation concerning Freddie Mac’s capital structure and tax or financial planning,- (v) confidential information about\nFreddie Mac’s customers, borrowers, employees, or others,- (vi) pricing and quoting information, policies, procedures,\nand practices,- (vii) confidential customer lists,- (viii) proprietary algorithms,- (ix) confidential contract terms,-\n(x) confidential information concerning Freddie Mac’s policies, procedures, and practices or the way in which Freddie\nMac does business,- (xi) proprietary or confidential data bases, including their structure and content,- (xii) proprietary\nFreddie Mac business software, including its design, specifications and documentation,- (xiii) information about Freddie\nMac products, programs, and services which has not yet been made public,- (xiv) confidential information about Freddie\nMac’s dealings with third parties, including dealers, customers, vendors, and regulators,- and/or (xv) confidential\ninformation belonging to third parties to which Executive received access in connection with Executive’s employment\nwith Freddie Mac. Confidential Information does not include general skills, experience, or knowledge acquired in\nconnection with Executive’ s employment with Freddie Mac that otherwise are generally known to the public or within\nthe industry or trade in which Freddie Mac operates.\nRestrictive Covenant and Confidentiality Agreement for Peter Federico\nPage 2 of 6\nII. Non-C ompetition\nExecutive recognizes that as a result of Executive’s employment with Freddie Mac, Executive has access to and\nknowledge of critically sensitive Confidential Information, the improper disclosure or use of which would result in grave\ncompetitive harm to Freddie Mac. Therefore, Executive agrees that during Executive’s employment with Freddie Mac,\nand for the twelve (12) months immediately following termination of Executive’s employment for any reason, Executive\nwill not consider offers of employment from, seek or accept employment with, or otherwise directly or indirectly provide\nprofessional services to any Competitor. Executive acknowledges and agrees that this covenant has unique, substantial\nand immeasurable value to Freddie Mac, that Executive has sufficient skills to provide a livelihood for Executive while\nthis covenant remains in force, and that this covenant will not interfere with Executive’s ability to work consistent with\nExecutive’s experience, training and education. This non-competition covenant applies regardless of whether Executive’s\nemployment is terminated by Executive, by Freddie Mac, or by a joint decision.\nIf Executive is a licensed lawyer, this non-competition covenant shall be interpreted in a manner consistent with any rule\napplicable to a legal licensed professional in the jurisdiction(s) of Executive’ s licensure or registration that concerns the\nExecutive's employment as counsel with, or provisions of legal services to, a Competitor.\nIII. Non-Solicitation and Non-Recruitment\nDuring Executive’ s employment with Freddie Mac and for a period of twelve (12) months after Executive’s termination\ndate, Executive will not solicit or recruit, attempt to solicit or recruit or assist another in soliciting or recruiting any\nFreddie Mac managerial employee (including manager-level, Director-level, or officer-level employee) with whom\nExecutive worked, or any employee whom Executive directly or indirectly supervised at Freddie Mac, to leave the\nemployee’s employment with Freddie Mac for purposes of employment or for the rendering of professional services.\nThis prohibition against solicitation does n_ot apply if Freddie Mac has notified the employee being solicited that his/her\nemployment with the Company will be terminated pursuant to a corporate reorganization or reduction-in-force.\nIf Executive is a licensed lawyer, this non-solicitation covenant shall be interpreted in a manner consistent with any rule\napplicable to a licensed legal professional in the jurisdiction(s) of Executive’ s licensure or registration.\nIV. Treatment of Confidential Information\nA. Non-Disclosure. Executive recognizes that Freddie Mac is engaged in an extremely competitive business and that, in\nthe course of performing Executive’s job duties, Executive will have access to and gain knowledge about Confidential\nInformation. Executive further recognizes the importance of carefully protecting this Confidential Information in order\nfor Freddie Mac to compete successfully. Therefore, Executive agrees\nRestrictive Covenant and Confidentiality Agreement for Peter Federico\nPage 3 of 6\nthat Executive will neither divulge Confidential Information to any persons, including to other Freddie Mac employees\nwho do not have a Freddie Mac business-related need to know, nor make use of the Confidential Information for the\nExecutive’s own benefit or for the benefit of anyone else other than Freddie Mac. Executive further agrees to take all\nreasonable precautions to prevent the disclosure of Confidential Information to unauthorized persons or entities, and to\ncomply with all Company policies, procedures, and instructions regarding the treatment of such information.\nB. Return of Materials. Executive agrees that upon termination of Executive’ s employment with Freddie Mac for any\nreason whatsoever, Executive will deliver to Executive’s immediate supervisor all tangible materials embodying\nConfidential Information, including, but not limited to, any documentation, records, listings, notes, files, data, sketches,\nmemoranda, models, accounts, reference materials, samples, machine- readable media, computer disks, tapes, and\nequipment which in any way relate to Confidential Information, whether developed by Executive or not. Executive\nfurther agrees not to retain any copies of any materials embodying Confidential Information.\nC. Post-Termination Obligations. Executive agrees that after the termination of Executive’s employment for any reason,\nExecutive will not use in any way whatsoever, nor disclose any Confidential Information learned or obtained in\nconnection with Executive’ s employment with Freddie Mac without first obtaining the written permission of the Vice\nPresident of Human Capital Management. Executive further agrees that, in order to assure the continued confidentiality\nof the Confidential Information, Freddie Mac may correspond with Executive’ s future employers to advise them\ngenerally of Executive’s exposure to and knowledge of Confidential Information, and Executive’ s obligations and\nresponsibilities regarding the Confidential Information. Executive understands and agrees that any such contact may\ninclude a request for assurance and confirmation from such employer(s) that Executive will not disclose Confidential\nInformation to such employer(s), nor will such employer(s) permit any use whatsoever of the Confidential Information.\nTo enable Freddie Mac to monitor compliance with the obligations imposed by this Agreement, Executive further agrees\nto inform in writing Freddie Mac’s Executive Vice President of Human Resources of the identity of Executive’s\nsubsequent employer(s) and Executive’s prospective job title and responsibilities prior to beginning employment.\nExecutive agrees that this notice requirement shall remain in effect for twelve (12) months following the termination of\nExecutive’s Freddie Mac employment.\nRestrictive Covenant and Confidentiality Agreement for Peter Federico\nPage 4 of 6\nD. Ability to Enforce Agreement and Assist G overnment Investigations. Nothing in this Agreement prohibits or\notherwise restricts you from: (1) making any disclosure of information required by law,- (2) assisting any regulatory or\nlaw enforcement agency or legislative body to the extent you maintain a legal right to do so notwithstanding this\nAgreement,- (3) filing, testifying, participating in or otherwise assisting in a proceeding relating to the alleged violation of\nany federal, state, or local law, regulation, or rule, to the extent you maintain a legal right to do so notwithstanding this\nAgreement,- or (4) filing, testifying, participating in or otherwise assisting the Securities and Exchange Commission or\nany other proper authority in a proceeding relating to allegations of fraud.\nV. Consideration Given to Executive\nIn exchange for Executive agreeing to be bound by this Agreement, Freddie Mac agrees to provide Executive with the\nfollowing consideration, each of which itself is adequate for Executive's agreement to be bound by the provisions of this\nA greement:\nA. Long-Term Incentive G rant. Executive will receive a 2006 long-terrn incentive grant pursuant to the terms that the\nCompensation and Human Resources Committee of the Freddie Mac Board of Directors approved on or about March 3,\n2006,- and/or\nB. Employment. Executive will be employed by Freddie Mac as Senior Vice President,- and\nAdditional Consideration. If Executive currently is subject to another Restrictive Covenant and Confidentiality\nAgreement that provides for any additional consideration in the event of termination, this Agreement shall not negate\nsuch additional form of consideration.\nVI. Reservation of Rights\nExecutive agrees that nothing in this Agreement constitutes a contract or commitment by Freddie Mac to continue\nExecutive’s employment in any job position for any period of time, nor does anything in this Agreement limit in any way\nFreddie Mac’s right to terminate Executive’s employment at any time for any reason.\nVII. Previous Agreements\nExcept as otherwise stated herein, this Agreement supercedes all previous agreements between Executive and Freddie\nMac which bear the title of ”Confidentiality and Restrictive Covenant Agreement,” and/or ”Restrictive Covenant and\nConfidentiality Agreement.”\nVIII. Enforcement\nA. Executive acknowledges that Executive may be subject to discipline, up to and including termination of employment,\nfor Executive’ s breach or threat of breach of any\nRestrictive Covenant and Confidentiality Agreement for Peter Federico\nPage 5 of 6\nprovision of this Agreement.\nB. Executive agrees that irreparable injury will result to Freddie Mac’s business interests in the event of breach or\nthreatened breach of this Agreement, the full extent of Freddie Mac’s damages will be impossible to ascertain, and\nmonetary damages will not be an adequate remedy for Freddie Mac. Therefore, Executive agrees that in the event of a\nbreach or threat of breach of any provision(s) of this Agreement, Freddie Mac, in addition to any other relief available,\nshall be entitled to temporary, preliminary, and permanent equitable relief to restrain any such breach or threat of breach\nby Executive and all persons acting for and/or in concert with Executive, without the necessity of posting bond or\nsecurity, which Executive expressly waives.\nC. Executive agrees that each of Executive’ s obligations specified in this Agreement is a separate and independent\ncovenant, and that all of Executive’s obligations set forth herein shall survive any termination, for any reason, of\nExecutive’s Freddie Mac employment. To the extent that any provision of this Agreement is determined by a court of\ncompetent jurisdiction to be unenforceable because it is overbroad, that provision shall be limited and enforced to the\nextent permitted by applicable law. Should any provision of this Agreement be declared or determined by any court of\ncompetent jurisdiction to be unenforceable or invalid under applicable law, the validity of the remaining obligations will\nnot be affected thereby and only the unenforceable or invalid obligation will be deemed not to be a part of this\nAgreement.\nD. This Agreement is governed by, and will be construed in accordance with, the laws of the Commonwealth of\nVirginia, without regard to its or any other jurisdiction’s conflict-of-law provisions. Executive agrees that any action\nrelated to or arising out of this Agreement shall be brought exclusively in the United States District Court for the Eastern\nDistrict of Virginia, and Executive hereby irrevocably consents to personal jurisdiction and venue in such court and to\nservice of process by United States Mail or express courier service in any such action.\nE. If any dispute(s) arise(s) between Freddie Mac and Executive with respect to any matter which is the subject of this\nAgreement, the prevailing party in such dispute(s) shall be entitled to recover from the other party all of its costs and\nexpenses, including its reasonable attorneys’ fees.\nExecutive has been advised to discuss all aspects of this Agreement with Executive’s private attorney. Executive\nacknowledges that Executive has carefully read and understands the terms and provisions of this Agreement and\nthat they are reasonable. Executive signs this Agreement voluntarily and accepts all obligations contained in this\nAgreement in exchange for the consideration to be given to Executive as outlined above, which Executive\nacknowledges is adequate and satisfactory, and which Executive further acknowledges Freddie Mac is not\notherwise obligated to provide to Executive. Neither Freddie Mac nor its agents, representatives, Executives,\nofficers or employees have made any representations to Executive concerning the terms or effects of this\nAgreement, other than those contained in this Agreement.\nRestrictive Covenant and Confidentiality Agreement for Peter Federico Page 6 of 6\nBy: /s/ Peter]. Federico\nPeter Federico\nBy: /s/ Paul George\nPaul G eorge\nExecutive Vice President — Human Resources\nDate: March 17, 2006\nDate: March 24, 2006	Exhibit 10.52\nRESTRICTIVE COVENANT AND CONFIDENTIALITY AGREEMENT\nIn exchange for the mutual promises and consideration set forth below, this Restrictive Covenant and Confidentiality\nA greement greement") is entered into by and between the Federal Home Loan Mortgage Corporation ("Freddie Mac"\nor "Company") and Peter Federico ("Executive"), effective as of March 1, 2006.\nI. Definitions\nThe following terms shall have the meanings indicated when used in this A greement.\nA. Competitor: The following entities, and their respective parents, successors, subsidiaries, and affiliates are\ncompetitors: (i) Fannie Mae (ii) all Federal Home Loan Banks (including the Office of Finance); and (iii) such other\nentities to which Executive and the Company may agree in writing from time-to-time.\nB. Confidential Information: Information or materials in written, oral, magnetic, digital, computer, photographic, optical,\nelectronic, or other form, whether now existing or developed or created during the period of Executive's employment\nwith Freddie Mac, that constitutes trade secrets and/or proprietary or confidential information. This information includes,\nbut is not limited to: (i) all information marked Proprietary or Confidential; (ii) information concerning the components,\ncapabilities, and attributes of Freddie Mac's business plans, methods, and strategies; (iii) information relating to tactics,\nplans, or strategies concerning shareholders, investors, pricing, investment, marketing, sales, trading, funding, hedging,\nmodeling, sales and risk management; (iv) financial or tax information and analyses, including but not limited to,\ninformation concerning Freddie Mac's capital structure and tax or financial planning; (v) confidential information about\nFreddie Mac's customers borrowers, employees, or others; (vi) pricing and quoting information, policies, procedures,\nand practices; (vii) confidential customer lists; (viii) proprietary algorithms; (ix) confidential contract terms;\n(x) confidential information concerning Freddie Mac's policies, procedures, and practices or the way in which Freddie\nMac does business; (xi) proprietary or confidential data bases including their structure and content; (xii) proprietary\nFreddie Mac business software, including its design, specifications and documentation; (xiii) information about Freddie\nMac products, programs, and services which has not yet been made public; (xiv) confidential information about Freddie\nMac's dealings with third parties, including dealers, customers, vendors, and regulators; and/or (xv) confidential\ninformation belonging to third parties to which Executive received access in connection with Executive's employment\nwith Freddie Mac. Confidential Information does not include general skills, experience, or knowledge acquired in\nconnection with Executive's employment with Freddie Mac that otherwise are generally known to the public or within\nthe industry or trade in which Freddie Mac operates.\nRestrictive Covenant and Confidentiality greement for Peter Federico\nPage 2 of 6\nII. Non-c ompetition\nExecutive recognizes that as a result of Executive's employment with Freddie Mac, Executive has access to and\nknowledge of critically sensitive Confidential Information, the improper disclosure or use of which would result in grave\ncompetitive harm to Freddie Mac. Therefore, Executive agrees that during Executive's employment with Freddie Mac,\nand for the twelve (12) months immediately following termination of Executive's employment for any reason, Executive\nwill not consider offers of employment from, seek or accept employment with, or otherwise directly or indirectly provide\nprofessional services to any Competitor. Executive acknowledges and agrees that this covenant has unique, substantial\nand immeasurable value to Freddie Mac, that Executive has sufficient skills to provide a livelihood for Executive while\nthis covenant remains in force, and that this covenant will not interfere with Executive's ability to work consistent with\nExecutive's experience, training and education. This on-competition covenant applies regardless of whether Executive's\nemployment is terminated by Executive, by Freddie Mac, or by a joint decision.\nIf Executive is a licensed lawyer, this non-competition covenant shall be interpreted in a manner consistent with any rule\napplicable to a legal licensed professiona in the jurisdiction(s) of Executive's licensure or registration that concerns the\nExecutive's employment as counsel with, or provisions of legal services to, a Competitor.\nIII. Non-Solicitation and Non-Recruitment\nDuring Executive's employment with Freddie Mac and for a period of twelve (12) months after Executive's termination\ndate, Executive will not solicit or recruit, attempt to solicit or recruit or assist another in soliciting or recruiting any\nFreddie Mac managerial employee (including manager-level, Director-level, or officer-level employee) with whom\nExecutive worked, or any employee whom Executive directly or indirectly supervised at Freddie Mac, to leave the\nemployee's employment with Freddie Mac for purposes of employment or for the rendering of professional services.\nThis prohibition against solicitation does not apply if Freddie Mac has notified the employee being solicited that his/her\nemployment with the Company will be terminated pursuant to a corporate reorganization or reduction-in-force\nIf Executive is a licensed lawyer, this non-solicitation covenant shall be interpreted in a manner consistent with any rule\napplicable to a licensed legal professional in the jurisdiction(s) of Executive's licensure or registration.\nIV. Treatment of Confidential Information\nA. Non-Disclosure. Executive recognizes that Freddie Mac is engaged in an extremely competitive business and that, in\nthe course of performing Executive's job duties, Executive will have access to and gain knowledge about Confidential\nInformation. Executive further recognizes the importance of carefully protecting this Confidential Information in order\nfor Freddie Mac to compete successfully. Therefore, Executive agrees\nRestrictive Covenant and Confidentiality greement for Peter Federico\nPage 3 of 6\nthat Executive will neither divulge Confidential Information to any persons, including to other Freddie Mac employees\nwho do not have a Freddie Mac business-related need to know, nor make use of the Confidential Information for the\nExecutive's own benefit or for the benefit of anyone else other than Freddie Mac. Executive further agrees to take all\nreasonable precautions to prevent the disclosure of Confidential Information to unauthorized persons or entities, and to\ncomply with all Company policies, procedures, and instructions regarding the treatment of such information.\nB. Return of Materials. Executive agrees that upon termination of Executive's employment with Freddie Mac for any\nreason whatsoever, Executive will deliver to Executive's immediate supervisor all tangible materials embodying\nConfidential Information, including, but not limited to, any documentation, records, listings, notes, files, data, sketches,\nmemoranda, models, accounts, reference materials, samples, machine-readable media, computer disks, tapes, and\nequipment which in any way relate to Confidential Information, whether developed by Executive or not. Executive\nfurther agrees not to retain any copies of any materials embodying Confidential Information.\nC. Post-Termination Obligations. Executive agrees that after the termination of Executive's employment for any reason,\nExecutive will not use in any way whatsoever, nor disclose any Confidential Information learned or obtained in\nconnection with Executive's employment with Freddie Mac without first obtaining the written permission of the Vice\nPresident of Human Capital Management. Executive further agrees that, in order to assure the continued confidentiality\nof the Confidential Information, Freddie Mac may correspond with Executive's future employers to advise them\ngenerally of Executive's exposure to and knowledge of Confidential Information, and Executive's obligations and\nresponsibilities regarding the Confidential Information. Executive understands and agrees that any such contact may\ninclude a request for assurance and confirmation from such employer(s) that Executive will not disclose Confidential\nInformation to such employer(s), nor will such employer(s) permit any use whatsoever of the Confidential Information.\nTo enable Freddie Mac to monitor compliance with the obligations imposed by this A greement, Executive further agrees\nto inform in writing Freddie Mac's Executive Vice President of Human Resources of the identity of Executive's\nsubsequent employer(s) and Executive's prospective job title and responsibilities prior to beginning employment.\nExecutive agrees that this notice requirement shall remain in effect for twelve (12) months following the termination\nof\nExecutive's Freddie Mac employment\nRestrictive Covenant and Confidentiality greement for Peter Federico\nPage 4 of 6\nD. Ability to Enforce Agreement and Assist Government Investigations. Nothing in this A greement prohibits or\notherwise restricts you from: (1) making any disclosure of information required by law; (2) assisting any regulatory or\nlaw enforcement agency or legislative body to the extent you maintain a legal right to do so notwithstanding this\nA greement; (3) filing, testifying, participating in or otherwise assisting in a proceeding relating to the alleged violation of\nany federal, state, or local law, regulation, or rule, to the extent you maintain a legal right to do so notwithstanding this\nA greement; or (4) filing, testifying, participating in or otherwise assisting the Securities and Exchange Commission or\nany other proper authority in a proceeding relating to allegations of fraud.\nV. Consideration iven to Executive\nIn exchange for Executive agreeing to be bound by this A greement, Freddie Mac agrees to provide Executive with the\nfollowing consideration, each of which itself is adequate for Executive's agreement to be bound by the provisions of this\ngreement:\nA. Long-Term Incentive Grant Executive will receive a 2006 long-term incentive grant pursuant to the terms that the\nCompensation and Human Resources Committee of the Freddie Mac Board of Directors approved on or about March 3,\n2006; and/or\nB. Employment. Executive will be employed by Freddie Mac as Senior Vice President; and\nAdditional Consideration. If Executive currently is subject to another Restrictive Covenant and Confidentiality\nA greement that provides for any additional consideration in the event of termination, this A greement shall not negate\nsuch additional form of consideration.\nVI. Reservation of Rights\nExecutive agrees that nothing in this A greement constitutes a contract or commitment by Freddie Mac to continue\nExecutive's employment in any job position for any period of time, nor does anything in this A greement limit in any way\nFreddie Mac's right to terminate Executive's employment at any time for any reason.\nVII. Previous Agreements\nExcept as otherwise stated herein this A greement supercedes all previous agreements between Executive and Freddie\nMac which bear the title of "Confidentiality and Restrictive Covenant A greement," and/or "Restrictive Covenant and\nConfidentiality A greement."\nVIII. Enforcement\nA. Executive acknowledges that Executive may be subject to discipline, up to and including termination of employment,\nfor Executive's breach or threat of breach of any\nRestrictive Covenant and Confidentiality greement for Peter Federico\nPage 5 of 6\nprovision of this A greement.\nB. Executive agrees that irreparable injury will result to Freddie Mac's business interests in the event of breach or\nthreatened breach of this A greement, the full extent of Freddie Mac's damages will be impossible to ascertain, and\nmonetary damages will not be an adequate remedy for Freddie Mac. Therefore, Executive agrees that in the event of a\nbreach or threat of breach of any provision(s) of this greement, Freddie Mac, in addition to any other relief available,\nshall be entitled to temporary, preliminary, and permanent equitable relief to restrain any such breach or threat of breach\nby Executive and all persons acting for and/or in concert with Executive without the necessity of posting bond or\nsecurity, which Executive expressly waives.\nC. Executive agrees that each of Executive's obligations specified in this A greement is a separate and independent\ncovenant, and that all of Executive's obligations set forth herein shall survive any termination, for any reason, of\nExecutive's Freddie Mac employment. To the extent that any provision of this greement is determined by a court of\ncompetent jurisdiction to be unenforceable because it is overbroad, that provision shall be limited and enforced to the\nextent permitted by applicable law. Should any provision of this A greement be declared or determined by any court of\ncompetent jurisdiction to be unenforceable or invalid under applicable law, the validity of the remaining obligations will\nnot be affected thereby and only the unenforceable or invalid obligation will be deemed not to be a part of this\nA greement.\nD. This A greement is governed by, and will be construed in accordance with, the laws of the Commonwealth of\nVirginia, without regard to its or any other jurisdiction's conflict-of-law provisions. Executive agrees that any action\nrelated to or arising out of this A greement shall be brought exclusively in the United States District Court for the Eastern\nDistrict of Virginia, and Executive hereby irrevocably consents to personal jurisdiction and venue in such court and to\nservice of process by United States Mail or express courier service in any such action.\nE. If any dispute(s) arise(s) between Freddie Mac and Executive with respect to any matter which is the subject of this\nA greement, the prevailing party in such dispute(s) shall be entitled to recover from the other party all of its costs and\nexpenses, including its reasonable attorneys' fees.\nExecutive has been advised to discuss all aspects of this A greement with Executive's private attorney. Executive\nacknowledges that Executive has carefully read and understands the terms and provisions of this Agreement and\nthat they are reasonable. Executive signs this Agreement voluntarily and accepts all obligations contained in this\nAgreement in exchange for the consideration to be given to Executive as outlined above, which Executive\nacknowledges is adequate and satisfactory, and which Executive further acknowledges Freddie Mac is not\notherwise obligated to provide to Executive. Neither Freddie Mac nor its agents, representatives, Executives,\nofficers or employees have made any representations to Executive concerning the terms or effects of this\nAgreement, other than those contained in this Agreement.\nRestrictive Covenant and Confidentiality Agreement for Peter Federico\nPage 6 of 6\nBy: /s/ Peter J. Federico\nDate: March 17, 2006\nPeter Federico\nBy: /s/ Paul George\nDate: March 24, 2006\nPaul George\nExecutive Vice President - Human Resources	Exhibit 10.52\nRESTRICTIVE COVENANT AND CONFIDENTIALITY AGREEMENT\nIn exchange for the mutual promises and consideration set forth below, this Restrictive Covenant and Confidentiality\nAgreement (“Agreement”) is entered into by and between the Federal Home Loan Mortgage Corporation (“Freddie Mac”\nor “Company”) and Peter Federico (“Executive”), effective as of March 1, 2006.\nI. Definitions\nThe following terms shall have the meanings indicated when used in this Agreement.\nA. Competitor: The following entities, and their respective parents, successors, subsidiaries, and affiliates are\ncompetitors: (i) Fannie Mae (ii) all Federal Home Loan Banks (including the Office of Finance); and (iii) such other\nentities to which Executive and the Company may agree in writing from time-to-time.\nB. Confidential Information: Information or materials in written, oral, magnetic, digital, computer, photographic, optical,\nelectronic, or other form, whether now existing or developed or created during the period of Executive’s employment\nwith Freddie Mac, that constitutes trade secrets and/or proprietary or confidential information. This information includes,\nbut is not limited to: (i) all information marked Proprietary or Confidential; (ii) information concerning the components,\ncapabilities, and attributes of Freddie Mac’s business plans, methods, and strategies; (iii) information relating to tactics,\nplans, or strategies concerning shareholders, investors, pricing, investment, marketing, sales, trading, funding, hedging,\nmodeling, sales and risk management; (iv) financial or tax information and analyses, including but not limited to,\ninformation concerning Freddie Mac’s capital structure and tax or financial planning; (v) confidential information about\nFreddie Mac’s customers, borrowers, employees, or others; (vi) pricing and quoting information, policies, procedures,\nand practices; (vii) confidential customer lists; (viii) proprietary algorithms; (ix) confidential contract terms;\n(x) confidential information concerning Freddie Mac’s policies, procedures, and practices or the way in which Freddie\nMac does business; (xi) proprietary or confidential data bases, including their structure and content; (xii) proprietary\nFreddie Mac business software, including its design, specifications and documentation; (xiii) information about Freddie\nMac products, programs, and services which has not yet been made public; (xiv) confidential information about Freddie\nMac’s dealings with third parties, including dealers, customers, vendors, and regulators; and/or (xv) confidential\ninformation belonging to third parties to which Executive received access in connection with Executive’s employment\nwith Freddie Mac. Confidential Information does not include general skills, experience, or knowledge acquired in\nconnection with Executive’s employment with Freddie Mac that otherwise are generally known to the public or within\nthe industry or trade in which Freddie Mac operates.\nRestrictive Covenant and Confidentiality Agreement for Peter Federico\nPage2of6\nII. Non-Competition\nExecutive recognizes that as a result of Executive’s employment with Freddie Mac, Executive has access to and\nknowledge of critically sensitive Confidential Information, the improper disclosure or use of which would result in grave\ncompetitive harm to Freddie Mac. Therefore, Executive agrees that during Executive’s employment with Freddie Mac,\nand for the twelve (12) months immediately following termination of Executive’s employment for any reason, Executive\nwill not consider offers of employment from, seek or accept employment with, or otherwise directly or indirectly provide\nprofessional services to any Competitor. Executive acknowledges and agrees that this covenant has unique, substantial\nand immeasurable value to Freddie Mac, that Executive has sufficient skills to provide a livelihood for Executive while\nthis covenant remains in force, and that this covenant will not interfere with Executive’s ability to work consistent with\nExecutive’s experience, training and education. This non-competition covenant applies regardless of whether Executive’s\nemployment is terminated by Executive, by Freddie Mac, or by a joint decision.\nIf Executive is a licensed lawyer, this non-competition covenant shall be interpreted in a manner consistent with any rule\napplicable to a legal licensed professional in the jurisdiction(s) of Executive’s licensure or registration that concerns the\nExecutive's employment as counsel with, or provisions of legal services to, a Competitor.\nIII. Non-Solicitation and Non-Recruitment\nDuring Executive’s employment with Freddie Mac and for a period of twelve (12) months after Executive’s termination\ndate, Executive will not solicit or recruit, attempt to solicit or recruit or assist another in soliciting or recruiting any\nFreddie Mac managerial employee (including manager-level, Director-level, or officer-level employee) with whom\nExecutive worked, or any employee whom Executive directly or indirectly supervised at Freddie Mac, to leave the\nemployee’s employment with Freddie Mac for purposes of employment or for the rendering of professional services.\nThis prohibition against solicitation does not apply if Freddie Mac has notified the employee being solicited that his/her\nemployment with the Company will be terminated pursuant to a corporate reorganization or reduction-in-force.\nIf Executive is a licensed lawyer, this non-solicitation covenant shall be interpreted in a manner consistent with any rule\napplicable to a licensed legal professional in the jurisdiction(s) of Executive’s licensure or registration.\nIV. Treatment of Confidential Information\nA. Non-Disclosure. Executive recognizes that Freddie Mac is engaged in an extremely competitive business and that, in\nthe course of performing Executive’s job duties, Executive will have access to and gain knowledge about Confidential\nInformation. Executive further recognizes the importance of carefully protecting this Confidential Information in order\nfor Freddie Mac to compete successfully. Therefore, Executive agrees\nRestrictive Covenant and Confidentiality Agreement for Peter Federico\nPage3of6\nthat Executive will neither divulge Confidential Information to any persons, including to other Freddie Mac employees\nwho do not have a Freddie Mac business-related need to know, nor make use of the Confidential Information for the\nExecutive’s own benefit or for the benefit of anyone else other than Freddie Mac. Executive further agrees to take all\nreasonable precautions to prevent the disclosure of Confidential Information to unauthorized persons or entities, and to\ncomply with all Company policies, procedures, and instructions regarding the treatment of such information.\nB. Return of Materials. Executive agrees that upon termination of Executive’s employment with Freddie Mac for any\nreason whatsoever, Executive will deliver to Executive’s immediate supervisor all tangible materials embodying\nConfidential Information, including, but not limited to, any documentation, records, listings, notes, files, data, sketches,\nmemoranda, models, accounts, reference materials, samples, machine-readable media, computer disks, tapes, and\nequipment which in any way relate to Confidential Information, whether developed by Executive or not. Executive\nfurther agrees not to retain any copies of any materials embodying Confidential Information.\nC. Post-Termination Obligations. Executive agrees that after the termination of Executive’s employment for any reason,\nExecutive will not use in any way whatsoever, nor disclose any Confidential Information learned or obtained in\nconnection with Executive’s employment with Freddie Mac without first obtaining the written permission of the Vice\nPresident of Human Capital Management. Executive further agrees that, in order to assure the continued confidentiality\nof the Confidential Information, Freddie Mac may correspond with Executive’s future employers to advise them\ngenerally of Executive’s exposure to and knowledge of Confidential Information, and Executive’s obligations and\nresponsibilities regarding the Confidential Information. Executive understands and agrees that any such contact may\ninclude a request for assurance and confirmation from such employer(s) that Executive will not disclose Confidential\nInformation to such employer(s), nor will such employer(s) permit any use whatsoever of the Confidential Information.\nTo enable Freddie Mac to monitor compliance with the obligations imposed by this Agreement, Executive further agrees\nto inform in writing Freddie Mac’s Executive Vice President of Human Resources of the identity of Executive’s\nsubsequent employer(s) and Executive’s prospective job title and responsibilities prior to beginning employment.\nExecutive agrees that this notice requirement shall remain in effect for twelve (12) months following the termination of\nExecutive’s Freddie Mac employment.\nRestrictive Covenant and Confidentiality Agreement for Peter Federico\nPage4of6\nD. Ability to Enforce Agreement and Assist Government Investigations. Nothing in this Agreement prohibits or\notherwise restricts you from: (1) making any disclosure of information required by law; (2) assisting any regulatory or\nlaw enforcement agency or legislative body to the extent you maintain a legal right to do so notwithstanding this\nAgreement; (3) filing, testifying, participating in or otherwise assisting in a proceeding relating to the alleged violation of\nany federal, state, or local law, regulation, or rule, to the extent you maintain a legal right to do so notwithstanding this\nAgreement; or (4) filing, testifying, participating in or otherwise assisting the Securities and Exchange Commission or\nany other proper authority in a proceeding relating to allegations of fraud.\nV. Consideration Given to Executive\nIn exchange for Executive agreeing to be bound by this Agreement, Freddie Mac agrees to provide Executive with the\nfollowing consideration, each of which itself is adequate for Executive's agreement to be bound by the provisions of this\nAgreement:\nA. Long-Term Incentive Grant. Executive will receive a 2006 long-term incentive grant pursuant to the terms that the\nCompensation and Human Resources Committee of the Freddie Mac Board of Directors approved on or about March 3,\n2006; and/or\nB. Employment. Executive will be employed by Freddie Mac as Senior Vice President; and\nAdditional Consideration. If Executive currently is subject to another Restrictive Covenant and Confidentiality\nAgreement that provides for any additional consideration in the event of termination, this Agreement shall not negate\nsuch additional form of consideration.\nVI. Reservation of Rights\nExecutive agrees that nothing in this Agreement constitutes a contract or commitment by Freddie Mac to continue\nExecutive’s employment in any job position for any period of time, nor does anything in this Agreement limit in any way\nFreddie Mac’s right to terminate Executive’s employment at any time for any reason.\nVII. Previous Agreements\nExcept as otherwise stated herein, this Agreement supercedes all previous agreements between Executive and Freddie\nMac which bear the title of “Confidentiality and Restrictive Covenant Agreement,” and/or “Restrictive Covenant and\nConfidentiality Agreement.”\nVIII. Enforcement\nA. Executive acknowledges that Executive may be subject to discipline, up to and including termination of employment,\nfor Executive’s breach or threat of breach of any\nRestrictive Covenant and Confidentiality Agreement for Peter Federico\nPage5of6\nprovision of this Agreement.\nB. Executive agrees that irreparable injury will result to Freddie Mac’s business interests in the event of breach or\nthreatened breach of this Agreement, the full extent of Freddie Mac’s damages will be impossible to ascertain, and\nmonetary damages will not be an adequate remedy for Freddie Mac. Therefore, Executive agrees that in the event of a\nbreach or threat of breach of any provision(s) of this Agreement, Freddie Mac, in addition to any other relief available,\nshall be entitled to temporary, preliminary, and permanent equitable relief to restrain any such breach or threat of breach\nby Executive and all persons acting for and/or in concert with Executive, without the necessity of posting bond or\nsecurity, which Executive expressly waives.\nC. Executive agrees that each of Executive’s obligations specified in this Agreement is a separate and independent\ncovenant, and that all of Executive’s obligations set forth herein shall survive any termination, for any reason, of\nExecutive’s Freddie Mac employment. To the extent that any provision of this Agreement is determined by a court of\ncompetent jurisdiction to be unenforceable because it is overbroad, that provision shall be limited and enforced to the\nextent permitted by applicable law. Should any provision of this Agreement be declared or determined by any court of\ncompetent jurisdiction to be unenforceable or invalid under applicable law, the validity of the remaining obligations will\nnot be affected thereby and only the unenforceable or invalid obligation will be deemed not to be a part of this\nAgreement.\nD. This Agreement is governed by, and will be construed in accordance with, the laws of the Commonwealth of\nVirginia, without regard to its or any other jurisdiction’s conflict-of-law provisions. Executive agrees that any action\nrelated to or arising out of this Agreement shall be brought exclusively in the United States District Court for the Eastern\nDistrict of Virginia, and Executive hereby irrevocably consents to personal jurisdiction and venue in such court and to\nservice of process by United States Mail or express courier service in any such action.\nE. If any dispute(s) arise(s) between Freddie Mac and Executive with respect to any matter which is the subject of this\nAgreement, the prevailing party in such dispute(s) shall be entitled to recover from the other party all of its costs and\nexpenses, including its reasonable attorneys’ fees.\nExecutive has been advised to discuss all aspects of this Agreement with Executive’s private attorney. Executive\nacknowledges that Executive has carefully read and understands the terms and provisions of this Agreement and\nthat they are reasonable. Executive signs this Agreement voluntarily and accepts all obligations contained in this\nAgreement in exchange for the consideration to be given to Executive as outlined above, which Executive\nacknowledges is adequate and satisfactory, and which Executive further acknowledges Freddie Mac is not\notherwise obligated to provide to Executive. Neither Freddie Mac nor its agents, representatives, Executives,\nofficers or employees have made any representations to Executive concerning the terms or effects of this\nAgreement, other than those contained in this Agreement.\nRestrictive Covenant and Confidentiality Agreement for Peter Federico\nPage6of6\nBy: /s/ Peter J. Federico\nDate: March 17, 2006\nPeter Federico\nBy: /s/ Paul George\nDate: March 24, 2006\nPaul George\nExecutive Vice President – Human Resources
6a1d8e0071366f59e198d8e5f15f9a9e.pdf	effective_date jurisdiction party term	EX-99.(D)(10) 16 a2220589zex-99_d10.htm EX-99.(D)(10)\nExhibit (d)(10)\nNONDISCLOSURE AGREEMENT\nTHIS NONDISCLOSURE AGREEMENT (this “Agreement”) is entered into and is effective as of November 18, 2013 (the “Effective Date”),\nby and between Fusion-io, Inc., a Delaware corporation (“Company”), and SanDisk Corporation, a Delaware corporation (“SanDisk,” and each\nalso referred to as “Party” or together as “Parties”).\nIn consideration for the Parties’ agreement to participate in the activities described below, the Parties agree as follows:\n1. Purpose. In connection with a potential or possible business opportunity or transaction between the Parties pursuant to which SanDisk\nwould acquire the Company (collectively, the “Transaction”), Company may find it beneficial to disclose to SanDisk certain information (the\n“Evaluation Material”). Evaluation Material shall include all information disclosed by Company about Company and its subsidiaries and shall\ninclude, but is not limited to, business plans, marketing plans, financial statements, contracts, customer lists, trade secrets, sales information,\nproduct designs and specifications, information about any third party and other materials and information related to Company or its subsidiaries.\n2. Confidential Information. The term “Confidential Information” shall mean Evaluation Material that is furnished by or on behalf of\nCompany to SanDisk or its Representatives, regardless of the manner in which it was furnished, on or after the Effective Date.\nThe confidentiality obligations in Paragraph 3 below shall not apply to the disclosed information that: (a) is already known to or in\npossession of SanDisk on a nonconfidential basis at the time disclosed by Company, provided that such information was not made available to\nSanDisk from a source other than the Company who was, to SanDisk’s knowledge (after commercially reasonable investigation), subject to an\nobligation to Company to keep such information confidential; (b) is or becomes generally available to the public through no breach of this\nAgreement or the Prior NDA; (c) becomes legally available to SanDisk on a nonconfidential basis from a source other than Company who is not,\nto the knowledge of SanDisk (after commercially reasonable investigation), subject to any obligation to Company to keep such information\nconfidential; or (d) is or has been independently developed by SanDisk without reference to or use of the Evaluation Material.\n3. Protection of Confidential Information. For itself and on behalf of its Representatives (as defined below), each of the Parties hereto\nagree to the following:\n(a)\nSanDisk will keep all Confidential Information confidential, and shall not disclose any Confidential Information to any Person\nother than SanDisk’s and its subsidiaries’ officers, directors, agents, employees, controlled affiliates and advisors (including, without limitation,\nfinancial, legal, tax and accounting advisors) (collectively, the “Representatives”) who, in each case, have a reasonable need to know, or have\naccess, in order to evaluate a Transaction and who, in each case, agree that, either as a condition to employment or in order to obtain the\nConfidential Information, to be bound by terms and conditions not less restrictive than those terms and conditions applicable to SanDisk under\nthis Agreement. SanDisk agrees that neither it nor any of its Representatives will, without the prior written consent of the Board of Directors of\nCompany (or any committee thereof), directly or indirectly, enter into any agreement, arrangement or understanding with any other person that\nhas or would have the effect of requiring such person to provide SanDisk or its affiliates with financing or other potential sources of capital on an\nexclusive basis in connection with a transaction involving the Company, or that would have the effect of preventing, impairing or otherwise\nlimiting the ability of any person to provide financing or other potential sources of capital to any other person in connection with a transaction\ninvolving Company.\nIn no event shall SanDisk or any of its Representatives use Confidential Information for any purpose other than in connection with\nits evaluation of a Transaction or the consummation of a Transaction.\nIn addition, without the prior written consent of the other Party, neither Party will, and such Party will cause its Representatives not\nto, disclose to any Person or entity, (a) that the Evaluation Material has been made available to SanDisk or its Representatives, (b) that\ndiscussions are taking place between the Parties concerning a Transaction, or (c) any terms or other facts with respect to any Transaction,\nincluding, without limitation, the status thereof or the identity (by name or identifiable description) of either Party; provided, however, that a\nParty is permitted to disclose such information (i) as required by law, subject to and in accordance with the conditions set forth in\nSection 3(b) below and (ii) to such Party’s Representatives who are actively and directly participating in such Party’s evaluation of the\nTransaction or who otherwise need to know such Confidential Information for the purpose of evaluating the Transaction.\nNeither Party shall communicate any information to the other Party in violation of the proprietary rights of any third party. In no\nevent shall SanDisk use less than the same degree of care to protect the Confidential Information as it would employ with respect to its own\ninformation which SanDisk considers confidential, or less than reasonable care.\nSanDisk shall cause its Representatives to comply with the terms of this Agreement as if such Representative were SanDisk\nhereunder, and SanDisk shall be responsible for any action taken or omissions made by its Representatives that would have been a violation or\nbreach of the terms of this Agreement had such action or omission been taken or made by SanDisk. In this Agreement, “Person” shall be\nbroadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual. Notwithstanding the\nforegoing, Company hereby acknowledges and agrees that where any of SanDisk’s third party advisor Representatives has agreed in a writing\naddressed to Company (and which expressly provides that Company is a third party beneficiary of such written agreement) to be bound by the\nconfidentiality and use provisions contained herein and any other term of this Agreement that is applicable to Representatives, with respect to\nany breach of this Agreement by such third party advisor Representative, the Company shall attempt to recover any monetary damages of\nCompany against such third party advisor Representative for its breach of this Agreement prior to seeking monetary damages against SanDisk\nfor such breach.\n(b) If SanDisk or any Representative of SanDisk is requested to disclose, or faces legal or regulatory action or is subject to legal or\nregulatory proceedings requiring disclosure of Confidential Information (including, without limitation, any rule, regulation or policy statement of\nany national securities exchange, market or automated quotation system on which any of SanDisk’s or Company’s securities are listed or quoted),\nthen, promptly following such request and prior to disclosing any such Confidential Information, SanDisk will provide Company with notice of\nany such request or requirement so that Company may seek a protective order or other appropriate remedy and/or waive compliance with the\nterms of this Agreement and SanDisk shall consult with Company with respect to Company and SanDisk taking steps to, and shall, to the extent\ncommercially reasonably and at the sole expense of Company, take such actions reasonably requested by Company in order to, resist or narrow\nthe scope of such request or legal process. To the extent such protective order or other remedy is not obtained, or Company waives compliance\nwith the terms hereof, if SanDisk or any of its Representatives are nonetheless legally compelled to disclose such information, SanDisk and any\nsuch Representative may disclose only that portion of the Confidential Information which is legally required to comply with the law or such bona\nfide regulatory or legal requirement.\nIf either Party or any of their respective Representative is requested to disclose, or faces legal or regulatory action or is subject to\nlegal or regulatory proceedings requiring disclosure of the information referred to in the third paragraph of Section 3(a) above (including, without\nlimitation, any rule, regulation\n2\nor policy statement of any national securities exchange, market or automated quotation system on which any of SanDisk’s or Company’s\nsecurities are listed or quoted), then, promptly following such request and prior to disclosing any such information, the Party receiving such\nrequest will provide the other Party with notice of any such request or requirement so that such other Party may seek a protective order or other\nappropriate remedy and/or waive compliance with the terms of this Agreement and the Party receiving such request shall consult with the other\nParty with respect to taking steps to, and shall, to the extent commercially reasonably and at the sole expense of such other Party, take such\nactions reasonably requested by the other Party in order to, resist or narrow the scope of such request or legal process. To the extent such\nprotective order or other remedy is not obtained, or either Party waives compliance with the terms hereof, if either Party or any of its\nRepresentatives are nonetheless legally compelled to disclose such information, such Party and its Representative may disclose only that portion\nof the information referred to in the third paragraph of Section 3(a) above which is legally required to comply with the law or such bona fide\nregulatory or legal requirement.\n(c)\nTo the extent that any Confidential Information may include material subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties\nunderstand and agree that they have common legal interests with respect to such matters and it is their desire, intention and mutual understanding\nthat the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its\ncontinued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information\nprovided by a Party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall\nremain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement\nobligates any Party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\n(d)\nNotwithstanding any other provision in this Agreement, including (without limitation) those provisions regarding the use of\nConfidential Information, SanDisk shall be entitled to use (but not disclose) for any purpose, without payment or other compensation to\nCompany, any Residual Knowledge (as subsequently defined), provided that the foregoing is not a license or immunity under any patent rights,\ncopyrights, maskwork rights or trademark rights. The term “Residual Knowledge” means technical knowledge in non-tangible form, which is\nretained in the unaided memory of SanDisk personnel as a result of authorized access to Confidential Information hereunder and who have made\nno effort to use Confidential Information to refresh their recollection in anticipation of or in conjunction with the use of any Residual\nKnowledge.\n4. Return of Confidential Information. All Confidential Information furnished under this Agreement shall remain the property of\nCompany and within ten (10) business days after Company’s written request, except and only to the extent that complying with such request, in\nthe opinion of SanDisk’s legal counsel (which may be internal counsel), would be prohibited by law or regulatory authority, SanDisk will and\nwill cause its Representatives to (a) destroy or return to Company the Confidential Information in the possession or control of SanDisk or its\nRepresentatives that is not electronically stored and SanDisk and its Representatives shall not retain any copy, compilation, summary or other\nderivative work thereof or therefrom, (b) destroy Confidential Information in the possession or control of SanDisk or its Representatives that is\nelectronically-stored and any copy, compilation, summary or other derivative work thereof or therefrom, and (c) certify to Company in writing\nthat SanDisk has fully complied with the provisions of clauses (a) and (b) of this paragraph; provided, however, that SanDisk may retain\nConfidential Information (“Retained Confidential Information”) in order to comply with applicable law, regulation, or SanDisk’s document\nretention policies; provided, however, that (i) Retained Confidential Information shall continue to be subject to the terms of this Agreement\n(including, without limitation, the confidentiality and non-use provisions) so long as such Retained Confidential Information is retained by\nSanDisk, notwithstanding the prior termination or\n3\nexpiration of this Agreement and (ii) SanDisk and its Representatives shall not access such Retained Confidential Information except as required\nin order to comply with applicable law or regulation.\n5. No License or Warranty. Except as expressly set forth in this Agreement or in a separate written agreement signed by the Parties, no\nlicense under any patents, copyrights, mask rights or other proprietary rights is granted or conveyed by Company’s transmittal of Confidential\nInformation or Evaluation Material under this Agreement. The Evaluation Material is provided “as is” and there are no representations or\nwarranties, express or implied, with respect to the information, including but not limited to a warranty against infringement, accuracy or\ncompleteness.\n6.\nStandstill. For a period commencing with the Effective Date and ending on the date that is twelve (12) months following the Effective\nDate, SanDisk shall not, and it shall not cause or permit its Representatives acting on its behalf or in concert with SanDisk to, without the prior\nwritten consent of the Company’s board of directors:\n(a)\nacquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or\nindirect rights to acquire any voting securities of Company or any subsidiary thereof, or any substantial portion of the assets of\nCompany or any subsidiary or division thereof;\n(b) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the\nrules of the Securities and Exchange Commission) any voting securities of Company, or seek to advise or influence any Person or\nentity with respect to the voting of any voting securities of Company;\n(c)\nmake any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary\ntransaction involving Company or any of its securities or assets;\n(d) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended, in connection with any of the foregoing;\n(e)\notherwise act or seek to control the management, board of directors or policies of Company;\n(f) take any action that could reasonably be expected to require Company to make a public announcement regarding the possibility of\nany of the events described in clauses (a) through (e) above; or\n(g) subject to the following proviso, request Company or any of its Representatives, directly or indirectly, to amend or waive any\nprovision of this Section 6;\nprovided that, SanDisk shall be permitted (i) to make private, non-public proposals to the chairman of the board or chief executive officer of\nCompany with respect to any type of acquisition or business combination transaction or (ii) to request Company or any of its Representatives,\ndirectly or indirectly, to amend or waive any provision of this Section 6, in each case, so long as SanDisk reasonably believes, based on the\nadvice of SanDisk’s counsel, that neither it nor Company will be required by applicable law, rule or regulation to publicly disclose such\nproposals; provided, further, that SanDisk shall not be responsible for any breach of this Section 6 by its third-party advisor Representatives\nunless any such Representative is acting on behalf of, or in concert with, SanDisk.\nThe provisions of this Section 6 shall be suspended during the pendency of a transaction giving rise to the occurrence of a Significant Event. A\n“Significant Event” shall be deemed to occur (a) if any Person or group (as defined in Section 13(d)(3) of the Exchange Act), other than SanDisk\nor one of its\n4\nRepresentatives or affiliates, shall enter into a definitive agreement with the Company to acquire more than 50% of the voting power of the\noutstanding voting securities of Company or assets of Company or its subsidiaries representing more than 50% of the consolidated earning power\nof Company and its subsidiaries or (b) a tender or exchange offer for more than 50% of the Company’s outstanding voting securities is\ncommenced by any person other than the Company (and remains pending), and within ten (10) business days thereafter the board of directors of\nthe Company has not publicly taken a position rejecting such tender or exchange offer and recommending that the stockholders of the Company\nnot tender any equity securities of the Company into such tender or exchange offer. Notwithstanding the foregoing, all other sections of this\nAgreement shall continue to apply to the Parties.\n7. Non-solicitation. SanDisk agrees that it will not (nor will it permit any of its Representatives on its behalf or acting in concert with\nSanDisk) at any time from the Effective Date until the date that is twelve (12) months following the Effective Date, directly or indirectly, solicit\nfor employment any Subject Employee. For purposes of this Agreement, “Subject Employee” shall mean any employee of the Company or its\nsubsidiaries who hold a title of “Executive Vice President” or above. The restrictions of this paragraph shall not apply to any general\nsolicitations for employment, such as newspaper or internet help wanted advertisement that is not directed to or focused on personnel employed\nby the other party or any of its subsidiaries.\n8. No Inducement or Commitment. Confidential Information provided to SanDisk does not and is not intended to represent an\ninducement or commitment by either Party to engage in any discussions regarding or enter into any business relationship, including, without\nlimitation, the Transaction, with the other Party or with any other entity. If the Parties hereto desire to pursue a Transaction, the Parties will\nexecute a separate written agreement to govern the Transaction.\n9. Equitable Relief. SanDisk acknowledges that a breach of this Agreement by SanDisk may result in immediate and irreparable harm to\nCompany or its subsidiaries, for which there will be no adequate remedy at law, and that Company shall be entitled to equitable relief if SanDisk\nbreaches or threatens to breach any provision of this Agreement and to compel SanDisk to cease and desist all unauthorized use and disclosure of\nConfidential Information or other violations of this Agreement.\n10. Notices. All notices under this Agreement shall be deemed to have been duly given upon (a) the receipt of the notice, when mailed\npostpaid and receipt requested, to the Party entitled to such notice at the address set forth below; (b) by personal delivery, deemed duly given at\nthe time of personal delivery; (c) by overnight courier, deemed duly given upon written verification of receipt; or (d) by facsimile transmission,\ndeemed duly given upon acknowledgment of receipt of electronic transmission.\n11. Term of Agreement. This Agreement shall commence on the Effective Date and shall terminate upon the date that is two (2) years\nfollowing the Effective Date, provided, that, notwithstanding any termination of this Agreement, (i) any breach of this Agreement shall survive\nfor the statute of limitations relating thereto, and (ii) the terms set forth in, and obligations of SanDisk set forth in, Section 4 (and the terms\nhereof referenced therein) with respect to Retained Confidential Information shall survive such termination in accordance with the provisions of\nSection 4.\n12. Assignment and Binding Effect. Without the prior written consent of the other Party hereto, neither Party may assign its rights or\nobligations under this Agreement to any Person. This Agreement shall benefit and be binding upon the Parties to this Agreement and their\nrespective successors and assigns.\n13. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the\nUnited States of America and the state of Delaware exclusive of its choice of law principles. The federal or state courts of Wilmington, Delaware\nshall have exclusive jurisdiction and venue over any dispute arising out of or relating to this Agreement, and each Party hereby\n5\nconsents to the jurisdiction and venue of such courts. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO\nTRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.\n14. No Agreement. The Parties hereto understand and acknowledge that no contract or agreement providing for any Transaction shall be\ndeemed to exist between them unless and until a final definitive agreement has been executed and delivered, and the Parties hereby waive, in\nadvance, any claims (including, without limitation, breach of contract) in connection with a Transaction unless and until the Parties have entered\ninto a final definitive agreement. The Parties also agree that unless and until a final definitive agreement regarding a Transaction has been\nexecuted and delivered, neither Party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of\nthis Agreement, except for the matters specifically agreed to herein.\n15. Securities Laws. Each Party is aware, and will advise its Representatives who are informed of the matters that are the subject of this\nAgreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any Person who has received\nmaterial, non-public information from the issuer of such securities and on the communication of such information to any other Person when it is\nreasonably foreseeable that such other Person is likely to purchase or sell such securities in reliance upon such information.\n16. Miscellaneous. This Agreement embodies the entire understanding between the Parties regarding the subject matter of this Agreement\nand supersedes any and all other negotiations, correspondence, understandings and agreements between the Parties or their respective\nRepresentatives regarding such subject matter, including, without limitation, that, solely with respect to Evaluation Material being shared in\nconnection with the Transaction after the Effective Date, this Agreement shall supersede that certain Confidential Information Exchange\nAgreement, dated as of September 22, 2010 (the “Prior NDA”), between SanDisk and the Company (provided, that (i) the Prior NDA shall be\nsuperseded solely for purposes of Evaluation Material shared by the Company to SanDisk in connection with the Transaction and (ii) each Party\nshall retain its rights against the other Party for any violation or breach of the Prior NDA) and any “clickthrough” agreement relating to the use\nand disclosure of Confidential Information agreed to by SanDisk or its Representatives in connection with their access to any datasite maintained\nin connection with a Transaction. This Agreement shall not be modified except by a writing duly executed on behalf of the Party against whom\nsuch modification is sought to be enforced. The failure of any Party to require performance by another Party of any provision of this Agreement\nshall in no way constitute a waiver thereof or affect the full right to require such performance at any time thereafter. Should any provisions of\nthis Agreement be found unenforceable, the remainder shall still be in effect. This Agreement has been negotiated by the Parties and the\nlanguage of this Agreement shall not be construed for or against either Party. References to either Party in this Agreement shall include such\nParty’s direct and indirect subsidiaries, it being understood that each Party shall cause its direct and indirect subsidiaries to comply with the terms\nof this Agreement as if it were a Party hereto. Either the original or copies, including, without limitation, facsimile transmissions, of this\nAgreement, may be executed in counterparts, each of which shall be an original as against any Party whose signature appears on such counterpart\nand all of which together shall constitute one and the same instrument.\n[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]\n6\nThe Parties have caused their respective duly authorized representatives to execute and deliver this Agreement as of the Effective Date.\nFUSION-IO, INC.\nSANDISK CORPORATION\nBy: /s/ Shane Robison\nBy: /s/ Sumit Sadana\nName: Shane Robison\nName: Sumit Sadana\nTitle: Chief Executive Officer\nTitle: Executive Vice President and Chief Strategy Officer\n[SIGNATURE PAGE TO NONDISCLOSURE AGREEMENT]\n7	EX-99.(D)(10) 16 a2220589zex-99_d10.htm EX-99.(D)(10)\nExhibit (d)(10)\nNONDISCLOSURE AGREEMENT\nTHIS NONDISCLOSURE AGREEMENT (this “Agreement”) is entered into and is effective as of November 18, 2013 (the “Effective Date”),\nby and between Fusion-io, Inc., a Delaware corporation (“Company”), and SanDisk Corporation, a Delaware corporation (“SanDisk,” and each\nalso referred to as “Party” or together as “Parties”).\nIn consideration for the Parties’ agreement to participate in the activities described below, the Parties agree as follows:\n1. Purpose. In connection with a potential or possible business opportunity or transaction between the Parties pursuant to which SanDisk\nwould acquire the Company (collectively, the “Transaction”), Company may find it beneficial to disclose to SanDisk certain information (the\n“Evaluation Material”). Evaluation Material shall include all information disclosed by Company about Company and its subsidiaries and shall\ninclude, but is not limited to, business plans, marketing plans, financial statements, contracts, customer lists, trade secrets, sales information,\nproduct designs and specifications, information about any third party and other materials and information related to Company or its subsidiaries.\n2. Confidential Information. The term “Confidential Information” shall mean Evaluation Material that is furnished by or on behalf of\nCompany to SanDisk or its Representatives, regardless of the manner in which it was furnished, on or after the Effective Date.\nThe confidentiality obligations in Paragraph 3 below shall not apply to the disclosed information that: (a) is already known to or in\npossession of SanDisk on a nonconfidential basis at the time disclosed by Company, provided that such information was not made available to\nSanDisk from a source other than the Company who was, to SanDisk’s knowledge (after commercially reasonable investigation), subject to an\nobligation to Company to keep such information confidential; (b) is or becomes generally available to the public through no breach of this\nAgreement or the Prior NDA; (c) becomes legally available to SanDisk on a nonconfidential basis from a source other than Company who is not,\nto the knowledge of SanDisk (after commercially reasonable investigation), subject to any obligation to Company to keep such information\nconfidential; or (d) is or has been independently developed by SanDisk without reference to or use of the Evaluation Material.\n3. Protection of Confidential Information. For itself and on behalf of its Representatives (as defined below), each of the Parties hereto\nagree to the following:\n(a) SanDisk will keep all Confidential Information confidential, and shall not disclose any Confidential Information to any Person\nother than SanDisk’s and its subsidiaries’ officers, directors, agents, employees, controlled affiliates and advisors (including, without limitation,\nfinancial, legal, tax and accounting advisors) (collectively, the “Representatives”) who, in each case, have a reasonable need to know, or have\naccess, in order to evaluate a Transaction and who, in each case, agree that, either as a condition to employment or in order to obtain the\nConfidential Information, to be bound by terms and conditions not less restrictive than those terms and conditions applicable to SanDisk under\nthis Agreement. SanDisk agrees that neither it nor any of its Representatives will, without the prior written consent of the Board of Directors of\nCompany (or any committee thereof), directly or indirectly, enter into any agreement, arrangement or understanding with any other person that\nhas or would have the effect of requiring such person to provide SanDisk or its affiliates with financing or other potential sources of capital on an\nexclusive basis in connection with a transaction involving the Company, or that would have the effect of preventing, impairing or otherwise\nlimiting the ability of any person to provide financing or other potential sources of capital to any other person in connection with a transaction\ninvolving Company.\n \nIn no event shall SanDisk or any of its Representatives use Confidential Information for any purpose other than in connection with\nits evaluation of a Transaction or the consummation of a Transaction.\nIn addition, without the prior written consent of the other Party, neither Party will, and such Party will cause its Representatives not\nto, disclose to any Person or entity, (a) that the Evaluation Material has been made available to SanDisk or its Representatives, (b) that\ndiscussions are taking place between the Parties concerning a Transaction, or (c) any terms or other facts with respect to any Transaction,\nincluding, without limitation, the status thereof or the identity (by name or identifiable description) of either Party; provided, however, that a\nParty is permitted to disclose such information (i) as required by law, subject to and in accordance with the conditions set forth in\nSection 3(b) below and (ii) to such Party’s Representatives who are actively and directly participating in such Party’s evaluation of the\nTransaction or who otherwise need to know such Confidential Information for the purpose of evaluating the Transaction.\nNeither Party shall communicate any information to the other Party in violation of the proprietary rights of any third party. In no\nevent shall SanDisk use less than the same degree of care to protect the Confidential Information as it would employ with respect to its own\ninformation which SanDisk considers confidential, or less than reasonable care.\nSanDisk shall cause its Representatives to comply with the terms of this Agreement as if such Representative were SanDisk\nhereunder, and SanDisk shall be responsible for any action taken or omissions made by its Representatives that would have been a violation or\nbreach of the terms of this Agreement had such action or omission been taken or made by SanDisk. In this Agreement, “Person” shall be\nbroadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual. Notwithstanding the\nforegoing, Company hereby acknowledges and agrees that where any of SanDisk’s third party advisor Representatives has agreed in a writing\naddressed to Company (and which expressly provides that Company is a third party beneficiary of such written agreement) to be bound by the\nconfidentiality and use provisions contained herein and any other term of this Agreement that is applicable to Representatives, with respect to\nany breach of this Agreement by such third party advisor Representative, the Company shall attempt to recover any monetary damages of\nCompany against such third party advisor Representative for its breach of this Agreement prior to seeking monetary damages against SanDisk\nfor such breach.\n(b)  If SanDisk or any Representative of SanDisk is requested to disclose, or faces legal or regulatory action or is subject to legal or\nregulatory proceedings requiring disclosure of Confidential Information (including, without limitation, any rule, regulation or policy statement of\nany national securities exchange, market or automated quotation system on which any of SanDisk’s or Company’s securities are listed or quoted),\nthen, promptly following such request and prior to disclosing any such Confidential Information, SanDisk will provide Company with notice of\nany such request or requirement so that Company may seek a protective order or other appropriate remedy and/or waive compliance with the\nterms of this Agreement and SanDisk shall consult with Company with respect to Company and SanDisk taking steps to, and shall, to the extent\ncommercially reasonably and at the sole expense of Company, take such actions reasonably requested by Company in order to, resist or narrow\nthe scope of such request or legal process. To the extent such protective order or other remedy is not obtained, or Company waives compliance\nwith the terms hereof, if SanDisk or any of its Representatives are nonetheless legally compelled to disclose such information, SanDisk and any\nsuch Representative may disclose only that portion of the Confidential Information which is legally required to comply with the law or such bona\nfide regulatory or legal requirement.\nIf either Party or any of their respective Representative is requested to disclose, or faces legal or regulatory action or is subject to\nlegal or regulatory proceedings requiring disclosure of the information referred to in the third paragraph of Section 3(a) above (including, without\nlimitation, any rule, regulation\n \nor policy statement of any national securities exchange, market or automated quotation system on which any of SanDisk’s or Company’s\nsecurities are listed or quoted), then, promptly following such request and prior to disclosing any such information, the Party receiving such\nrequest will provide the other Party with notice of any such request or requirement so that such other Party may seek a protective order or other\nappropriate remedy and/or waive compliance with the terms of this Agreement and the Party receiving such request shall consult with the other\nParty with respect to taking steps to, and shall, to the extent commercially reasonably and at the sole expense of such other Party, take such\nactions reasonably requested by the other Party in order to, resist or narrow the scope of such request or legal process. To the extent such\nprotective order or other remedy is not obtained, or either Party waives compliance with the terms hereof, if either Party or any of its\nRepresentatives are nonetheless legally compelled to disclose such information, such Party and its Representative may disclose only that portion\nof the information referred to in the third paragraph of Section 3(a) above which is legally required to comply with the law or such bona fide\nregulatory or legal requirement.\n(0 To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties\nunderstand and agree that they have common legal interests with respect to such matters and it is their desire, intention and mutual understanding\nthat the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its\ncontinued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information\nprovided by a Party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall\nremain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement\nobligates any Party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\n(d) Notwithstanding any other provision in this Agreement, including (without limitation) those provisions regarding the use of\nConfidential Information, SanDisk shall be entitled to use (but not disclose) for any purpose, without payment or other compensation to\nCompany, any Residual Knowledge (as subsequently defined), provided that the foregoing is not a license or immunity under any patent rights,\ncopyrights, maskwork rights or trademark rights. The term “Residual Knowledge” means technical knowledge in non-tangible form, which is\nretained in the unaided memory of SanDisk personnel as a result of authorized access to Confidential Information hereunder and who have made\nno effort to use Confidential Information to refresh their recollection in anticipation of or in conjunction with the use of any Residual\nKnowledge.\n4. Return of Confidential Information. All Confidential Information furnished under this Agreement shall remain the property of\nCompany and within ten (10) business days after Company’s written request, except and only to the extent that complying with such request, in\nthe opinion of SanDisk’s legal counsel (which may be internal counsel), would be prohibited by law or regulatory authority, SanDisk will and\nwill cause its Representatives to (a) destroy or return to Company the Confidential Information in the possession or control of SanDisk or its\nRepresentatives that is not electronically stored and SanDisk and its Representatives shall not retain any copy, compilation, summary or other\nderivative work thereof or therefrom, (b) destroy Confidential Information in the possession or control of SanDisk or its Representatives that is\nelectronically-stored and any copy, compilation, summary or other derivative work thereof or therefrom, and (c) certify to Company in writing\nthat SanDisk has fully complied with the provisions of clauses (a) and (b) of this paragraph; provided, however, that SanDisk may retain\nConfidential Information (“Retained Confidential Information™) in order to comply with applicable law, regulation, or SanDisk’s document\nretention policies; provided, however, that (i) Retained Confidential Information shall continue to be subject to the terms of this Agreement\n(including, without limitation, the confidentiality and non-use provisions) so long as such Retained Confidential Information is retained by\nSanDisk, notwithstanding the prior termination or\n \nexpiration of this Agreement and (ii) SanDisk and its Representatives shall not access such Retained Confidential Information except as required\nin order to comply with applicable law or regulation.\n5. No License or Warranty. Except as expressly set forth in this Agreement or in a separate written agreement signed by the Parties, no\nlicense under any patents, copyrights, mask rights or other proprietary rights is granted or conveyed by Company’s transmittal of Confidential\nInformation or Evaluation Material under this Agreement. The Evaluation Material is provided “as is” and there are no representations or\nwarranties, express or implied, with respect to the information, including but not limited to a warranty against infringement, accuracy or\ncompleteness.\n6. Standstill. For a period commencing with the Effective Date and ending on the date that is twelve (12) months following the Effective\nDate, SanDisk shall not, and it shall not cause or permit its Representatives acting on its behalf or in concert with SanDisk to, without the prior\nwritten consent of the Company’s board of directors:\n(a)  acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or\nindirect rights to acquire any voting securities of Company or any subsidiary thereof, or any substantial portion of the assets of\nCompany or any subsidiary or division thereof;\n(b)  make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the\nrules of the Securities and Exchange Commission) any voting securities of Company, or seek to advise or influence any Person or\nentity with respect to the voting of any voting securities of Company;\n(c)  make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary\ntransaction involving Company or any of its securities or assets;\n(d)  form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended, in connection with any of the foregoing;\n(e)  otherwise act or seek to control the management, board of directors or policies of Company;\n(f)  take any action that could reasonably be expected to require Company to make a public announcement regarding the possibility of\nany of the events described in clauses (a) through (e) above; or\n(g)  subject to the following proviso, request Company or any of its Representatives, directly or indirectly, to amend or waive any\nprovision of this Section 6;\nprovided that, SanDisk shall be permitted (i) to make private, non-public proposals to the chairman of the board or chief executive officer of\nCompany with respect to any type of acquisition or business combination transaction or (ii) to request Company or any of its Representatives,\ndirectly or indirectly, to amend or waive any provision of this Section 6, in each case, so long as SanDisk reasonably believes, based on the\nadvice of SanDisk’s counsel, that neither it nor Company will be required by applicable law, rule or regulation to publicly disclose such\nproposals; provided, further, that SanDisk shall not be responsible for any breach of this Section 6 by its third-party advisor Representatives\nunless any such Representative is acting on behalf of, or in concert with, SanDisk.\nThe provisions of this Section 6 shall be suspended during the pendency of a transaction giving rise to the occurrence of a Significant Event. A\n“Significant Event” shall be deemed to occur (a) if any Person or group (as defined in Section 13(d)(3) of the Exchange Act), other than SanDisk\nor one of its\n \nRepresentatives or affiliates, shall enter into a definitive agreement with the Company to acquire more than 50% of the voting power of the\noutstanding voting securities of Company or assets of Company or its subsidiaries representing more than 50% of the consolidated earning power\nof Company and its subsidiaries or (b) a tender or exchange offer for more than 50% of the Company’s outstanding voting securities is\ncommenced by any person other than the Company (and remains pending), and within ten (10) business days thereafter the board of directors of\nthe Company has not publicly taken a position rejecting such tender or exchange offer and recommending that the stockholders of the Company\nnot tender any equity securities of the Company into such tender or exchange offer. Notwithstanding the foregoing, all other sections of this\nAgreement shall continue to apply to the Parties.\n7. Non-solicitation. SanDisk agrees that it will not (nor will it permit any of its Representatives on its behalf or acting in concert with\nSanDisk) at any time from the Effective Date until the date that is twelve (12) months following the Effective Date, directly or indirectly, solicit\nfor employment any Subject Employee. For purposes of this Agreement, “Subject Employee” shall mean any employee of the Company or its\nsubsidiaries who hold a title of “Executive Vice President” or above. The restrictions of this paragraph shall not apply to any general\nsolicitations for employment, such as newspaper or internet help wanted advertisement that is not directed to or focused on personnel employed\nby the other party or any of its subsidiaries.\n8. No Inducement or Commitment. Confidential Information provided to SanDisk does not and is not intended to represent an\ninducement or commitment by either Party to engage in any discussions regarding or enter into any business relationship, including, without\nlimitation, the Transaction, with the other Party or with any other entity. If the Parties hereto desire to pursue a Transaction, the Parties will\nexecute a separate written agreement to govern the Transaction.\n9. Equitable Relief. SanDisk acknowledges that a breach of this Agreement by SanDisk may result in immediate and irreparable harm to\nCompany or its subsidiaries, for which there will be no adequate remedy at law, and that Company shall be entitled to equitable relief if SanDisk\nbreaches or threatens to breach any provision of this Agreement and to compel SanDisk to cease and desist all unauthorized use and disclosure of\nConfidential Information or other violations of this Agreement.\n10. Notices. All notices under this Agreement shall be deemed to have been duly given upon (a) the receipt of the notice, when mailed\npostpaid and receipt requested, to the Party entitled to such notice at the address set forth below; (b) by personal delivery, deemed duly given at\nthe time of personal delivery; (c) by overnight courier, deemed duly given upon written verification of receipt; or (d) by facsimile transmission,\ndeemed duly given upon acknowledgment of receipt of electronic transmission.\n11.  Term of Agreement. This Agreement shall commence on the Effective Date and shall terminate upon the date that is two (2) years\nfollowing the Effective Date, provided, that, notwithstanding any termination of this Agreement, (i) any breach of this Agreement shall survive\nfor the statute of limitations relating thereto, and (ii) the terms set forth in, and obligations of SanDisk set forth in, Section 4 (and the terms\nhereof referenced therein) with respect to Retained Confidential Information shall survive such termination in accordance with the provisions of\nSection 4.\n12.  Assignment and Binding Effect. Without the prior written consent of the other Party hereto, neither Party may assign its rights or\nobligations under this Agreement to any Person. This Agreement shall benefit and be binding upon the Parties to this Agreement and their\nrespective successors and assigns.\n \n13.  Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the\nUnited States of America and the state of Delaware exclusive of its choice of law principles. The federal or state courts of Wilmington, Delaware\nshall have exclusive jurisdiction and venue over any dispute arising out of or relating to this Agreement, and each Party hereby\n5\n \nconsents to the jurisdiction and venue of such courts. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO\nTRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.\n14. No Agreement. The Parties hereto understand and acknowledge that no contract or agreement providing for any Transaction shall be\ndeemed to exist between them unless and until a final definitive agreement has been executed and delivered, and the Parties hereby waive, in\nadvance, any claims (including, without limitation, breach of contract) in connection with a Transaction unless and until the Parties have entered\ninto a final definitive agreement. The Parties also agree that unless and until a final definitive agreement regarding a Transaction has been\nexecuted and delivered, neither Party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of\nthis Agreement, except for the matters specifically agreed to herein.\n15.  Securities Laws. Each Party is aware, and will advise its Representatives who are informed of the matters that are the subject of this\nAgreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any Person who has received\nmaterial, non-public information from the issuer of such securities and on the communication of such information to any other Person when it is\nreasonably foreseeable that such other Person is likely to purchase or sell such securities in reliance upon such information.\n16.  Miscellaneous. This Agreement embodies the entire understanding between the Parties regarding the subject matter of this Agreement\nand supersedes any and all other negotiations, correspondence, understandings and agreements between the Parties or their respective\nRepresentatives regarding such subject matter, including, without limitation, that, solely with respect to Evaluation Material being shared in\nconnection with the Transaction after the Effective Date, this Agreement shall supersede that certain Confidential Information Exchange\nAgreement, dated as of September 22, 2010 (the “Prior NDA”), between SanDisk and the Company (provided, that (i) the Prior NDA shall be\nsuperseded solely for purposes of Evaluation Material shared by the Company to SanDisk in connection with the Transaction and (ii) each Party\nshall retain its rights against the other Party for any violation or breach of the Prior NDA) and any “clickthrough” agreement relating to the use\nand disclosure of Confidential Information agreed to by SanDisk or its Representatives in connection with their access to any datasite maintained\nin connection with a Transaction. This Agreement shall not be modified except by a writing duly executed on behalf of the Party against whom\nsuch modification is sought to be enforced. The failure of any Party to require performance by another Party of any provision of this Agreement\nshall in no way constitute a waiver thereof or affect the full right to require such performance at any time thereafter. Should any provisions of\nthis Agreement be found unenforceable, the remainder shall still be in effect. This Agreement has been negotiated by the Parties and the\nlanguage of this Agreement shall not be construed for or against either Party. References to either Party in this Agreement shall include such\nParty’s direct and indirect subsidiaries, it being understood that each Party shall cause its direct and indirect subsidiaries to comply with the terms\nof this Agreement as if it were a Party hereto. Either the original or copies, including, without limitation, facsimile transmissions, of this\nAgreement, may be executed in counterparts, each of which shall be an original as against any Party whose signature appears on such counterpart\nand all of which together shall constitute one and the same instrument.\n[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]\n6\n \nThe Parties have caused their respective duly authorized representatives to execute and deliver this Agreement as of the Effective Date.\nFUSION-IO, INC. SANDISK CORPORATION\nBy: /s/ Shane Robison By: /s/ Sumit Sadana\nName: Shane Robison Name: Sumit Sadana\nTitle: Chief Executive Officer Title: Executive Vice President and Chief Strategy Officer\n[SIGNATURE PAGE TO NONDISCLOSURE AGREEMENT]\n7\n	EX-99.(D)(10) 16 a2220589zex-99_d10.htm EX-99.(D)(10)\nExhibit (d)(10)\nNONDISCLOSURE AGREEMENT\nTHIS NONDISCLOSURE AGREEMENT (this "Agreement") is entered into and is effective as of November 18, 2013 (the "Effective Date"),\nby and between Fusion-io, Inc., a Delaware corporation ("Company"), and SanDisk Corporation, a Delaware corporation ("SanDisk," and each\nalso referred to as "Party" or together as "Parties").\nIn consideration for the Parties' agreement to participate in the activities described below, the Parties agree as follows:\n1.\nPurpose. In connection with a potential or possible business opportunity or transaction between the Parties pursuant to which SanDisk\nwould acquire the Company (collectively, the "Transaction"), Company may find it beneficial to disclose to SanDisk certain information (the\n"Evaluation Material"). Evaluation Material shall include all information disclosed by Company about Company and its subsidiaries and shall\ninclude, but is not limited to, business plans, marketing plans, financial statements, contracts, customer lists, trade secrets, sales information,\nproduct designs and specifications, information about any third party and other materials and information related to Company or its subsidiaries.\n2.\nConfidential Information. The term "Confidential Information" shall mean Evaluation Material that is furnished by or on behalf of\nCompany to SanDisk or its Representatives, regardless of the manner in which it was furnished, on or after the Effective Date.\nThe confidentiality obligations in Paragraph 3 below shall not apply to the disclosed information that: (a) is already known to or in\npossession of SanDisk on a nonconfidential basis at the time disclosed by Company, provided that such information was not made available to\nSanDisk from a source other than the Company who was, to SanDisk's knowledge (after commercially reasonable investigation), subjec to an\nobligation to Company to keep such information confidential; (b) is or becomes generally available to the public through no breach of this\nAgreement or the Prior NDA; (c) becomes legally available to SanDisk on a nonconfidential basis from a source other than Company who is\nnot,\nto the knowledge of SanDisk (after commercially reasonable investigation), subject to any obligation to Company to keep such information\nconfidential; or (d) is or has been independently developed by SanDisk without reference to or use of the Evaluation Material.\n3.\nProtection of Confidential Information For itself and on behalf of its Representatives (as defined below), each of the Parties hereto\nagree to the following:\n(a)\nSanDisk will keep all Confidentia Information confidential, and shall not disclose any Confidential Information to any Person\nother than SanDisk's and its subsidiaries' officers, directors, agents, employees, controlled affiliates and advisors (including, without limitation,\nfinancial, legal, tax and accounting advisors) (collectively, the "Representatives") who, in each case, have a reasonable need to know, or have\naccess, in order to evaluate a Transaction and who, in each case, agree that, either as a condition to employment or in order to obtain the\nConfidential Information, to be bound by terms and conditions not less restrictive than those terms and conditions applicable to SanDisk under\nthis Agreement. SanDisk agrees that neither it nor any of its Representatives will, without the prior written consent of the Board of Directors\nof\nCompany (or any committee thereof), directly or indirectly, enter into any agreement, arrangement or understanding with any other person that\nhas or would have the effect of requiring such person to provide SanDisk or its affiliates with financing or other potential sources of capital on an\nexclusive basis in connection with a transaction involving the Company, or that would have the effect of preventing, impairing or otherwise\nlimiting the ability of any person to provide financing or other potential sources of capital to any other person in connection with a transaction\ninvolving Company.\nIn no event shall SanDisk or any of its Representatives use Confidential Information for any purpose other than in connection with\nits evaluation of a Transaction or the consummation of a Transaction.\nIn addition, without the prior written consent of the other Party, neither Party will, and such Party will cause its Representatives\nnot\nto, disclose to any Person or entity, (a) that the Evaluation Material has been made available to SanDisk or its Representatives, (b) that\ndiscussions are taking place between the Parties concerning a Transaction, or (c) any terms or other facts with respect to any Transaction,\nincluding, without limitation, the status thereof or the identity (by name or identifiable description) of either Party; provided, however, that a\nParty is permitted to disclose such information (i) as required by law, subject to and in accordance with the conditions set forth in\nSection 3(b) below and (ii) to such Party's Representatives who are actively and directly participating in such Party's evaluation of the\nTransaction or who otherwise need to know such Confidential Information for the purpose of evaluating the Transaction.\nNeither Party shall communicate any information to the other Party in violation of the proprietary rights of any third party. In\nno\nevent shall SanDisk use less than the same degree of care to protect the Confidential Information as it would employ with respect to its own\ninformation which SanDisk considers confidential, or less than reasonable care.\nSanDisk shall cause its Representatives to comply with the terms of this Agreement as if such Representative were SanDisk\nhereunder, and SanDisk shall be responsible for any action taken or omissions made by its Representatives that would have been a violation\nor\nbreach of the terms of this Agreement had such action or omission been taken or made by SanDisk. In this Agreement, "Person" shall be\nbroadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual. Notwithstanding the\nforegoing,\nCompany\nhereby\nacknowledges\nand\nagrees\nthat\nwhere\nany\nof\nSanDisk's\nthird\nparty\nadvisor\nRepresentatives\nhas\nagreed\nin\na\nwriting\naddressed to Company (and which expressly provides that Company is a third party beneficiary of such written agreement) to be bound by the\nconfidentiality and use provisions contained herein and any other term of this Agreement that is applicable to Representatives, with respect\nto\nany breach of this Agreement by such third party advisor Representative, the Company shall attempt to recover any monetary damages\nof\nCompany against such third party advisor Representative for its breach of this Agreement prior to seeking monetary damages against SanDisk\nfor such breach.\n(b)\nIf SanDisk or any Representative of SanDisk is requested to disclose, or faces legal or regulatory action or is subject to legal or\nregulatory proceedings requiring disclosure of Confidential Information (including, without limitation, any rule, regulation or policy statement of\nany national securities exchange, market or automated quotation system on which any of SanDisk's or Company's securities are listed or quoted),\nthen, promptly following such request and prior to disclosing any such Confidential Information, SanDisk will provide Company with notice of\nany such request or requirement so that Company may seek a protective order or other appropriate remedy and/or waive compliance with the\nterms of this Agreement and SanDisk shall consult with Company with respect to Company and SanDisk taking steps to, and shall, to the extent\ncommercially reasonably and at the sole expense of Company, take such actions reasonably requested by Company in order to, resist or narrow\nthe scope of such request or legal process. To the extent such protective order or other remedy is not obtained, or Company waives compliance\nwith\nthe\nterms hereof, if SanDisk or any of its Representatives are nonetheless legally compelled to disclose such information, SanDisk and any\nsuch Representative may disclose only that portion of the Confidential Information which is legally required to comply with the law or such bona\nfide regulatory or legal requirement.\nIf either Party or any of their respective Representative is requested to disclose, or faces legal or regulatory action or is subject to\nlegal or regulatory proceedings requiring disclosure of the information referred to in the third paragraph of Section 3(a) above (including, without\nlimitation, any rule, regulation\n2\nor policy statement of any national securities exchange, market or automated quotation system on which any of SanDisk's or Company's\nsecurities are listed or quoted), then, promptly following such request and prior to disclosing any such information, the Party receiving such\nrequest will provide the other Party with notice of any such request or requirement so that such other Party may seek a protective order or other\nappropriate remedy and/or waive compliance with the terms of this Agreement and the Party receiving such request shall consult with the other\nParty with respect to taking steps to, and shall, to the extent commercially reasonably and at the sole expense of such other Party, take such\nactions reasonably requested by the other Party in order to, resist or narrow the scope of such request or legal process. To the extent\nsuch\nprotective order or other remedy is not obtained, or either Party waives compliance with the terms hereof, if either Party or any of its\nRepresentatives are nonetheless legally compelled to disclose such information, such Party and its Representative may disclose only that portion\nof the information referred to in the third paragraph of Section 3(a) above which is legally required to comply with the law or such bona fide\nregulatory or legal requirement.\n(c)\nTo the extent that any Confidential Information may include material subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties\nunderstand and agree that they have common legal interests with respect to such matters and it is their desire, intention and mutual understanding\nthat\nthe\nsharing\nof\nsuch\nmaterial\nis\nnot\nintended\nto,\nand\nshall\nnot,\nwaive\nor\ndiminish\nin\nany\nway\nthe\nconfidentiality\nof\nsuch\nmaterial\nor\nits\ncontinued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information\nprovided by a Party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall\nremain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement\nobligates any Party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\n(d)\nNotwithstanding any other provision in this Agreement, including (without limitation) those provisions regarding the use of\nConfidential Information, SanDisk shall be entitled to use (but not disclose) for any purpose, without payment or other compensation to\nCompany, any Residual Knowledge (as subsequently defined), provided that the foregoing is not a license or immunity under any patent rights,\ncopyrights, maskwork rights or trademark rights. The term "Residual Knowledge" means technical knowledge in non-tangible form, which is\nretained in the unaided memory of SanDisk personnel as a result of authorized access to Confidential Information hereunder and who have made\nno effort to use Confidential Information to refresh their recollection in anticipation of or in conjunction with the use of any Residual\nKnowledge.\n4.\nReturn of Confidential Information. All Confidential Information furnished under this Agreement shall remain the property of\nCompany and within ten (10) business days after Company's written request, except and only to the extent that complying with such request, in\nthe opinion of SanDisk's legal counsel (which may be internal counsel), would be prohibited by law or regulatory authority, SanDisk will and\nwill\ncause its Representatives to (a) destroy or return to Company the Confidential Information in the possession or control of SanDisk or its\nRepresentatives that is not electronically stored and SanDisk and its Representatives shall not retain any copy, compilation, summary or other\nderivative work thereof or therefrom, (b) destroy Confidential Information in the possession or control of SanDisk or its Representatives that is\nelectronically-stored and any copy, compilation, summary or other derivative work thereof or therefrom, and (c) certify to Company in writing\nthat SanDisk has fully complied with the provisions of clauses (a) and (b) of this paragraph; provided however, that SanDisk may retain\nConfidential Information ("Retained Confidential Information") in order to comply with applicable law, regulation, or SanDisk's document\nretention policies; provided, however, that (i) Retained Confidential Information shall continue to be subject to the terms of this Agreement\n(including, without limitation, the confidentiality and non-use provisions) so long as such Retained Confidential Information is retained by\nSanDisk, notwithstanding the prior termination or\n3\nexpiration of this Agreement and (ii) SanDisk and its Representatives shall not access such Retained Confidential Information except as required\nin order to comply with applicable law or regulation.\n5.\nNo License or Warranty. Except as expressly set forth in this Agreement or in a separate written agreement signed by the Parties, no\nlicense under any patents, copyrights, mask rights or other proprietary rights is granted or conveyed by Company's transmittal of Confidential\nInformation or Evaluation Material under this Agreement. The Evaluation Material is provided "as is" and there are no representations or\nwarranties, express or implied, with respect to the information, including but not limited to a warranty against infringement accuracy or\ncompleteness.\n6.\nStandstill. For a period commencing with the Effective Date and ending on the date that is twelve (12) months following the Effective\nDate, SanDisk shall not, and it shall not cause or permit its Representatives acting on its behalf or in concert with SanDisk to, without the prior\nwritten consent of the Company's board of directors:\n(a)\nacquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or\nindirect rights to acquire any voting securities of Company or any subsidiary thereof, or any substantial portion of the assets of\nCompany or any subsidiary or division thereof;\n(b)\nmake, or in any way participate, directly or indirectly, in any "solicitation" of "proxies" to vote (as such terms are used in the\nrules of the Securities and Exchange Commission) any voting securities of Company, or seek to advise or influence any Person\nor\nentity with respect to the voting of any voting securities of Company;\n(c)\nmake any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary\ntransaction involving Company or any of its securities or assets;\n(d)\nform, join or in any way participate in a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended, in connection with any of the foregoing;\n(e)\notherwise act or seek to control the management, board of directors or policies of Company;\n(f)\ntake any action that could reasonably be expected to require Company to make a public announcement regarding the possibility of\nany of the events described in clauses (a) through (e) above; or\n(g)\nsubject to the following proviso, request Company or any of its Representatives, directly or indirectly, to amend or waive any\nprovision of this Section 6;\nprovided that, SanDisk shall be permitted (i) to make private, non-public proposals to the chairman of the board or chief executive officer of\nCompany with respect to any type of acquisition or business combination transaction or (ii) to request Company or any of its Representatives,\ndirectly or indirectly, to amend or waive any provision of this Section 6, in each case, so long as SanDisk reasonably believes, based on\nthe\nadvice of SanDisk's counsel, that neither it nor Company will be required by applicable law, rule or regulation to publicly disclose such\nproposals; provided, further, that SanDisk shall not be responsible for any breach of this Section 6 by its third-party advisor Representatives\nunless any such Representative is acting on behalf of, or in concert with, SanDisk.\nThe provisions of this Section 6 shall be suspended during the pendency of a transaction giving rise to the occurrence of a Significant Event.\nA\n"Significant Event" shall be deemed to occur (a) if any Person or group (as defined in Section 13(d)(3) of the Exchange Act), other than SanDisk\nor one of its\n4\nRepresentatives or affiliates, shall enter into a definitive agreement with the Company to acquire more than 50% of the voting power of the\noutstanding voting securities of Company or assets of Company or its subsidiaries representing more than 50% of the consolidated earning power\nof Company and its subsidiaries or (b) a tender or exchange offer for more than 50% of the Company's outstanding voting securities is\ncommenced by any person other than the Company (and remains pending), and within ten (10) business days thereafter the board of directors\nof\nthe\nCompany\nhas\nnot\npublicly\ntaken\na\nposition\nrejecting\nsuch\ntender\nor\nexchange\noffer\nand\nrecommending\nthat\nthe\nstockholders\nof\nthe\nCompany\nnot tender any equity securities of the Company into such tender or exchange offer. Notwithstanding the foregoing, all other sections of this\nAgreement shall continue to apply to the Parties.\n7.\nNon-solicitation. SanDisk agrees that it will not (nor will it permit any of its Representatives on its behalf or acting in concert with\nSanDisk) at any time from the Effective Date until the date that is twelve (12) months following the Effective Date, directly or indirectly, solicit\nfor employment any Subject Employee. For purposes of this Agreement, "Subject Employee" shall mean any employee of the Company or its\nsubsidiaries who hold a title of "Executive Vice President" or above. The restrictions of this paragraph shall not apply to any genera\nsolicitations for employment, such as newspaper or internet help wanted advertisement that is not directed to or focused on personnel employed\nby the other party or any of its subsidiaries.\n8.\nNo Inducement or Commitment. Confidential Information provided to SanDisk does not and is not intended to represent an\ninducement or commitment by either Party to engage in any discussions regarding or enter into any business relationship, including, without\nlimitation, the Transaction, with the other Party or with any other entity. If the Parties hereto desire to pursue a Transaction, the Parties will\nexecute a separate written agreement to govern the Transaction.\n9.\nEquitable Relief. SanDisk acknowledges that a breach of this Agreement by SanDisk may result in immediate and irreparable harm to\nCompany or its subsidiaries, for which there will be no adequate remedy at law, and that Company shall be entitled to equitable relief if SanDisk\nbreaches or threatens to breach any provision of this Agreement and to compel SanDisk to cease and desist all unauthorized use and disclosure\nof\nConfidential Information or other violations of this Agreement.\n10. Notices. All notices under this Agreement shall be deemed to have been duly given upon (a) the receipt of the notice, when mailed\npostpaid and receipt requested, to the Party entitled to such notice at the address set forth below; (b) by personal delivery, deemed duly given\nat\nthe\ntime\nof\npersonal\ndelivery;\n(c)\nby\novernight\ncourier,\ndeemed\nduly\ngiven\nupon\nwritten\nverification\nof\nreceipt;\nor\n(d)\nby\nfacsimile\ntransmission,\ndeemed duly given upon acknowledgment of receipt of electronic transmission.\n11. Term of Agreement. This Agreement shall commence on the Effective Date and shall terminate upon the date that is two (2) years\nfollowing the Effective Date, provided, that, notwithstanding any termination of this Agreement, (i) any breach of this Agreement shall survive\nfor the statute of limitations relating thereto, and (ii) the terms set forth in, and obligations of SanDisk set forth in, Section 4 (and the terms\nhereof referenced therein) with respect to Retained Confidential Information shall survive such termination in accordance with the provisions of\nSection 4.\n12.\nAssignment and Binding Effect. Without the prior written consent of the other Party hereto, neither Party may assign its rights or\nobligations under this Agreement to any Person. This Agreement shall benefit and be binding upon the Parties to this Agreement and their\nrespective successors and assigns.\n13. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the\nUnited States of America and the state of Delaware exclusive of its choice of law principles. The federal or state courts of Wilmington, Delaware\nshall have exclusive jurisdiction and venue over any dispute arising out of or relating to this Agreement, and each Party hereby\n5\nconsents to the jurisdiction and venue of such courts. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO\nTRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.\n14.\nNo Agreement. The Parties hereto understand and acknowledge that no contract or agreement providing for any Transaction shal be\ndeemed to exist between them unless and until a final definitive agreement has been executed and delivered, and the Parties hereby waive, in\nadvance, any claims (including, without limitation, breach of contract) in connection with a Transaction unless and until the Parties have\nentered\ninto a final definitive agreement. The Parties also agree that unless and until a final definitive agreement regarding a Transaction has been\nexecuted and delivered, neither Party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue\nof\nthis Agreement, except for the matters specifically agreed to herein.\n15. Securities Laws. Each Party is aware, and will advise its Representatives who are informed of the matters that are the subject of this\nAgreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any Person who has received\nmaterial, non-public information from the issuer of such securities and on the communication of such information to any other Person when it is\nreasonably foreseeable that such other Person is likely to purchase or sell such securities in reliance upon such information.\n16.\nMiscellaneous. This Agreement embodies the entire understanding between the Parties regarding the subject matter of this Agreement\nand supersedes any and all other negotiations, correspondence, understandings and agreements between the Parties or their respective\nRepresentatives regarding such subject matter, including, without limitation, that, solely with respect to Evaluation Material being shared in\nconnection with the Transaction after the Effective Date, this Agreement shall supersede that certain Confidential Information Exchange\nAgreement, dated as of September 22, 2010 (the "Prior NDA"), between SanDisk and the Company (provided, that (i) the Prior NDA shall be\nsuperseded solely for purposes of Evaluation Material shared by the Company to SanDisk in connection with the Transaction and (ii) each Party\nshall retain its rights against the other Party for any violation or breach of the Prior NDA) and any "clickthrough" agreement relating to the use\nand disclosure of Confidential Information agreed to by SanDisk or its Representatives in connection with their access to any datasite maintained\nin connection with a Transaction. This Agreement shall not be modified except by a writing duly executed on behalf of the Party against whom\nsuch modification is sought to be enforced. The failure of any Party to require performance by another Party of any provision of this Agreement\nshall in no way constitute a waiver thereof or affect the full right to require such performance at any time thereafter. Should any provisions of\nthis Agreement be found unenforceable, the remainder shall still be in effect. This Agreement has been negotiated by the Parties and the\nlanguage of this Agreement shall not be construed for or against either Party. References to either Party in this Agreement shall include such\nParty's direct and indirect subsidiaries, it being understood that each Party shall cause its direct and indirect subsidiaries to comply with the terms\nof this Agreement as if it were a Party hereto. Either the original or copies, including, without limitation, facsimile transmissions, of this\nAgreement, may be executed in counterparts, each of which shall be an original as against any Party whose signature appears on such counterpart\nand all of which together shall constitute one and the same instrument.\n[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]\n6\nThe Parties have caused their respective duly authorized representatives to execute and deliver this Agreement as of the Effective Date.\nFUSION-IO, INC.\nSANDISK CORPORATION\nBy: /s/ Shane Robison\nBy: /s/ Sumit Sadana\nName: Shane Robison\nName: Sumit Sadana\nTitle: Chief Executive Officer\nTitle: Executive Vice President and Chief Strategy Officer\n[SIGNATURE PAGE TO NONDISCLOSURE AGREEMENT]\n7	EX-99.(D)(10) 16 a2220589zex-99_d10.htm EX-99.(D)(10)\nExhibit (d)(10)\nNONDISCLOSURE AGREEMENT\nTHIS NONDISCLOSURE AGREEMENT (this “Agreement”) is entered into and is effective as of November 18, 2013 (the “Effective Date”),\nby and between Fusion-io, Inc., a Delaware corporation (“Company”), and SanDisk Corporation, a Delaware corporation (“SanDisk,” and each\nalso referred to as “Party” or together as “Parties”).\nIn consideration for the Parties’ agreement to participate in the activities described below, the Parties agree as follows:\n1. Purpose. In connection with a potential or possible business opportunity or transaction between the Parties pursuant to which SanDisk\nwould acquire the Company (collectively, the “Transaction”), Company may find it beneficial to disclose to SanDisk certain information (the\n“Evaluation Material”). Evaluation Material shall include all information disclosed by Company about Company and its subsidiaries and shall\ninclude, but is not limited to, business plans, marketing plans, financial statements, contracts, customer lists, trade secrets, sales information,\nproduct designs and specifications, information about any third party and other materials and information related to Company or its subsidiaries.\n2. Confidential Information. The term “Confidential Information” shall mean Evaluation Material that is furnished by or on behalf of\nCompany to SanDisk or its Representatives, regardless of the manner in which it was furnished, on or after the Effective Date.\nThe confidentiality obligations in Paragraph 3 below shall not apply to the disclosed information that: (a) is already known to or in\npossession of SanDisk on a nonconfidential basis at the time disclosed by Company, provided that such information was not made available to\nSanDisk from a source other than the Company who was, to SanDisk’s knowledge (after commercially reasonable investigation), subject to an\nobligation to Company to keep such information confidential; (b) is or becomes generally available to the public through no breach of this\nAgreement or the Prior NDA; (c) becomes legally available to SanDisk on a nonconfidential basis from a source other than Company who is not,\nto the knowledge of SanDisk (after commercially reasonable investigation), subject to any obligation to Company to keep such information\nconfidential; or (d) is or has been independently developed by SanDisk without reference to or use of the Evaluation Material.\n3. Protection of Confidential Information. For itself and on behalf of its Representatives (as defined below), each of the Parties hereto\nagree to the following:\n(a)\nSanDisk will keep all Confidential Information confidential, and shall not disclose any Confidential Information to any Person\nother than SanDisk’s and its subsidiaries’ officers, directors, agents, employees, controlled affiliates and advisors (including, without limitation,\nfinancial, legal, tax and accounting advisors) (collectively, the “Representatives”) who, in each case, have a reasonable need to know, or have\naccess, in order to evaluate a Transaction and who, in each case, agree that, either as a condition to employment or in order to obtain the\nConfidential Information, to be bound by terms and conditions not less restrictive than those terms and conditions applicable to SanDisk under\nthis Agreement. SanDisk agrees that neither it nor any of its Representatives will, without the prior written consent of the Board of Directors of\nCompany (or any committee thereof), directly or indirectly, enter into any agreement, arrangement or understanding with any other person that\nhas or would have the effect of requiring such person to provide SanDisk or its affiliates with financing or other potential sources of capital on an\nexclusive basis in connection with a transaction involving the Company, or that would have the effect of preventing, impairing or otherwise\nlimiting the ability of any person to provide financing or other potential sources of capital to any other person in connection with a transaction\ninvolving Company.\nIn no event shall SanDisk or any of its Representatives use Confidential Information for any purpose other than in connection with\nits evaluation of a Transaction or the consummation of a Transaction.\nIn addition, without the prior written consent of the other Party, neither Party will, and such Party will cause its Representatives not\nto, disclose to any Person or entity, (a) that the Evaluation Material has been made available to SanDisk or its Representatives, (b) that\ndiscussions are taking place between the Parties concerning a Transaction, or (c) any terms or other facts with respect to any Transaction,\nincluding, without limitation, the status thereof or the identity (by name or identifiable description) of either Party; provided, however, that a\nParty is permitted to disclose such information (i) as required by law, subject to and in accordance with the conditions set forth in\nSection 3(b) below and (ii) to such Party’s Representatives who are actively and directly participating in such Party’s evaluation of the\nTransaction or who otherwise need to know such Confidential Information for the purpose of evaluating the Transaction.\nNeither Party shall communicate any information to the other Party in violation of the proprietary rights of any third party. In no\nevent shall SanDisk use less than the same degree of care to protect the Confidential Information as it would employ with respect to its own\ninformation which SanDisk considers confidential, or less than reasonable care.\nSanDisk shall cause its Representatives to comply with the terms of this Agreement as if such Representative were SanDisk\nhereunder, and SanDisk shall be responsible for any action taken or omissions made by its Representatives that would have been a violation or\nbreach of the terms of this Agreement had such action or omission been taken or made by SanDisk. In this Agreement, “Person” shall be\nbroadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual. Notwithstanding the\nforegoing, Company hereby acknowledges and agrees that where any of SanDisk’s third party advisor Representatives has agreed in a writing\naddressed to Company (and which expressly provides that Company is a third party beneficiary of such written agreement) to be bound by the\nconfidentiality and use provisions contained herein and any other term of this Agreement that is applicable to Representatives, with respect to\nany breach of this Agreement by such third party advisor Representative, the Company shall attempt to recover any monetary damages of\nCompany against such third party advisor Representative for its breach of this Agreement prior to seeking monetary damages against SanDisk\nfor such breach.\n(b) If SanDisk or any Representative of SanDisk is requested to disclose, or faces legal or regulatory action or is subject to legal or\nregulatory proceedings requiring disclosure of Confidential Information (including, without limitation, any rule, regulation or policy statement of\nany national securities exchange, market or automated quotation system on which any of SanDisk’s or Company’s securities are listed or quoted),\nthen, promptly following such request and prior to disclosing any such Confidential Information, SanDisk will provide Company with notice of\nany such request or requirement so that Company may seek a protective order or other appropriate remedy and/or waive compliance with the\nterms of this Agreement and SanDisk shall consult with Company with respect to Company and SanDisk taking steps to, and shall, to the extent\ncommercially reasonably and at the sole expense of Company, take such actions reasonably requested by Company in order to, resist or narrow\nthe scope of such request or legal process. To the extent such protective order or other remedy is not obtained, or Company waives compliance\nwith the terms hereof, if SanDisk or any of its Representatives are nonetheless legally compelled to disclose such information, SanDisk and any\nsuch Representative may disclose only that portion of the Confidential Information which is legally required to comply with the law or such bona\nfide regulatory or legal requirement.\nIf either Party or any of their respective Representative is requested to disclose, or faces legal or regulatory action or is subject to\nlegal or regulatory proceedings requiring disclosure of the information referred to in the third paragraph of Section 3(a) above (including, without\nlimitation, any rule, regulation\n2\nor policy statement of any national securities exchange, market or automated quotation system on which any of SanDisk’s or Company’s\nsecurities are listed or quoted), then, promptly following such request and prior to disclosing any such information, the Party receiving such\nrequest will provide the other Party with notice of any such request or requirement so that such other Party may seek a protective order or other\nappropriate remedy and/or waive compliance with the terms of this Agreement and the Party receiving such request shall consult with the other\nParty with respect to taking steps to, and shall, to the extent commercially reasonably and at the sole expense of such other Party, take such\nactions reasonably requested by the other Party in order to, resist or narrow the scope of such request or legal process. To the extent such\nprotective order or other remedy is not obtained, or either Party waives compliance with the terms hereof, if either Party or any of its\nRepresentatives are nonetheless legally compelled to disclose such information, such Party and its Representative may disclose only that portion\nof the information referred to in the third paragraph of Section 3(a) above which is legally required to comply with the law or such bona fide\nregulatory or legal requirement.\n(c)\nTo the extent that any Confidential Information may include material subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties\nunderstand and agree that they have common legal interests with respect to such matters and it is their desire, intention and mutual understanding\nthat the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its\ncontinued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information\nprovided by a Party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall\nremain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement\nobligates any Party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\n(d)\nNotwithstanding any other provision in this Agreement, including (without limitation) those provisions regarding the use of\nConfidential Information, SanDisk shall be entitled to use (but not disclose) for any purpose, without payment or other compensation to\nCompany, any Residual Knowledge (as subsequently defined), provided that the foregoing is not a license or immunity under any patent rights,\ncopyrights, maskwork rights or trademark rights. The term “Residual Knowledge” means technical knowledge in non-tangible form, which is\nretained in the unaided memory of SanDisk personnel as a result of authorized access to Confidential Information hereunder and who have made\nno effort to use Confidential Information to refresh their recollection in anticipation of or in conjunction with the use of any Residual\nKnowledge.\n4. Return of Confidential Information. All Confidential Information furnished under this Agreement shall remain the property of\nCompany and within ten (10) business days after Company’s written request, except and only to the extent that complying with such request, in\nthe opinion of SanDisk’s legal counsel (which may be internal counsel), would be prohibited by law or regulatory authority, SanDisk will and\nwill cause its Representatives to (a) destroy or return to Company the Confidential Information in the possession or control of SanDisk or its\nRepresentatives that is not electronically stored and SanDisk and its Representatives shall not retain any copy, compilation, summary or other\nderivative work thereof or therefrom, (b) destroy Confidential Information in the possession or control of SanDisk or its Representatives that is\nelectronically-stored and any copy, compilation, summary or other derivative work thereof or therefrom, and (c) certify to Company in writing\nthat SanDisk has fully complied with the provisions of clauses (a) and (b) of this paragraph; provided, however, that SanDisk may retain\nConfidential Information (“Retained Confidential Information”) in order to comply with applicable law, regulation, or SanDisk’s document\nretention policies; provided, however, that (i) Retained Confidential Information shall continue to be subject to the terms of this Agreement\n(including, without limitation, the confidentiality and non-use provisions) so long as such Retained Confidential Information is retained by\nSanDisk, notwithstanding the prior termination or\n3\nexpiration of this Agreement and (ii) SanDisk and its Representatives shall not access such Retained Confidential Information except as required\nin order to comply with applicable law or regulation.\n5. No License or Warranty. Except as expressly set forth in this Agreement or in a separate written agreement signed by the Parties, no\nlicense under any patents, copyrights, mask rights or other proprietary rights is granted or conveyed by Company’s transmittal of Confidential\nInformation or Evaluation Material under this Agreement. The Evaluation Material is provided “as is” and there are no representations or\nwarranties, express or implied, with respect to the information, including but not limited to a warranty against infringement, accuracy or\ncompleteness.\n6.\nStandstill. For a period commencing with the Effective Date and ending on the date that is twelve (12) months following the Effective\nDate, SanDisk shall not, and it shall not cause or permit its Representatives acting on its behalf or in concert with SanDisk to, without the prior\nwritten consent of the Company’s board of directors:\n(a)\nacquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or\nindirect rights to acquire any voting securities of Company or any subsidiary thereof, or any substantial portion of the assets of\nCompany or any subsidiary or division thereof;\n(b) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the\nrules of the Securities and Exchange Commission) any voting securities of Company, or seek to advise or influence any Person or\nentity with respect to the voting of any voting securities of Company;\n(c)\nmake any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary\ntransaction involving Company or any of its securities or assets;\n(d) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended, in connection with any of the foregoing;\n(e)\notherwise act or seek to control the management, board of directors or policies of Company;\n(f) take any action that could reasonably be expected to require Company to make a public announcement regarding the possibility of\nany of the events described in clauses (a) through (e) above; or\n(g) subject to the following proviso, request Company or any of its Representatives, directly or indirectly, to amend or waive any\nprovision of this Section 6;\nprovided that, SanDisk shall be permitted (i) to make private, non-public proposals to the chairman of the board or chief executive officer of\nCompany with respect to any type of acquisition or business combination transaction or (ii) to request Company or any of its Representatives,\ndirectly or indirectly, to amend or waive any provision of this Section 6, in each case, so long as SanDisk reasonably believes, based on the\nadvice of SanDisk’s counsel, that neither it nor Company will be required by applicable law, rule or regulation to publicly disclose such\nproposals; provided, further, that SanDisk shall not be responsible for any breach of this Section 6 by its third-party advisor Representatives\nunless any such Representative is acting on behalf of, or in concert with, SanDisk.\nThe provisions of this Section 6 shall be suspended during the pendency of a transaction giving rise to the occurrence of a Significant Event. A\n“Significant Event” shall be deemed to occur (a) if any Person or group (as defined in Section 13(d)(3) of the Exchange Act), other than SanDisk\nor one of its\n4\nRepresentatives or affiliates, shall enter into a definitive agreement with the Company to acquire more than 50% of the voting power of the\noutstanding voting securities of Company or assets of Company or its subsidiaries representing more than 50% of the consolidated earning power\nof Company and its subsidiaries or (b) a tender or exchange offer for more than 50% of the Company’s outstanding voting securities is\ncommenced by any person other than the Company (and remains pending), and within ten (10) business days thereafter the board of directors of\nthe Company has not publicly taken a position rejecting such tender or exchange offer and recommending that the stockholders of the Company\nnot tender any equity securities of the Company into such tender or exchange offer. Notwithstanding the foregoing, all other sections of this\nAgreement shall continue to apply to the Parties.\n7. Non-solicitation. SanDisk agrees that it will not (nor will it permit any of its Representatives on its behalf or acting in concert with\nSanDisk) at any time from the Effective Date until the date that is twelve (12) months following the Effective Date, directly or indirectly, solicit\nfor employment any Subject Employee. For purposes of this Agreement, “Subject Employee” shall mean any employee of the Company or its\nsubsidiaries who hold a title of “Executive Vice President” or above. The restrictions of this paragraph shall not apply to any general\nsolicitations for employment, such as newspaper or internet help wanted advertisement that is not directed to or focused on personnel employed\nby the other party or any of its subsidiaries.\n8. No Inducement or Commitment. Confidential Information provided to SanDisk does not and is not intended to represent an\ninducement or commitment by either Party to engage in any discussions regarding or enter into any business relationship, including, without\nlimitation, the Transaction, with the other Party or with any other entity. If the Parties hereto desire to pursue a Transaction, the Parties will\nexecute a separate written agreement to govern the Transaction.\n9. Equitable Relief. SanDisk acknowledges that a breach of this Agreement by SanDisk may result in immediate and irreparable harm to\nCompany or its subsidiaries, for which there will be no adequate remedy at law, and that Company shall be entitled to equitable relief if SanDisk\nbreaches or threatens to breach any provision of this Agreement and to compel SanDisk to cease and desist all unauthorized use and disclosure of\nConfidential Information or other violations of this Agreement.\n10. Notices. All notices under this Agreement shall be deemed to have been duly given upon (a) the receipt of the notice, when mailed\npostpaid and receipt requested, to the Party entitled to such notice at the address set forth below; (b) by personal delivery, deemed duly given at\nthe time of personal delivery; (c) by overnight courier, deemed duly given upon written verification of receipt; or (d) by facsimile transmission,\ndeemed duly given upon acknowledgment of receipt of electronic transmission.\n11. Term of Agreement. This Agreement shall commence on the Effective Date and shall terminate upon the date that is two (2) years\nfollowing the Effective Date, provided, that, notwithstanding any termination of this Agreement, (i) any breach of this Agreement shall survive\nfor the statute of limitations relating thereto, and (ii) the terms set forth in, and obligations of SanDisk set forth in, Section 4 (and the terms\nhereof referenced therein) with respect to Retained Confidential Information shall survive such termination in accordance with the provisions of\nSection 4.\n12. Assignment and Binding Effect. Without the prior written consent of the other Party hereto, neither Party may assign its rights or\nobligations under this Agreement to any Person. This Agreement shall benefit and be binding upon the Parties to this Agreement and their\nrespective successors and assigns.\n13. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the\nUnited States of America and the state of Delaware exclusive of its choice of law principles. The federal or state courts of Wilmington, Delaware\nshall have exclusive jurisdiction and venue over any dispute arising out of or relating to this Agreement, and each Party hereby\n5\nconsents to the jurisdiction and venue of such courts. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO\nTRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.\n14. No Agreement. The Parties hereto understand and acknowledge that no contract or agreement providing for any Transaction shall be\ndeemed to exist between them unless and until a final definitive agreement has been executed and delivered, and the Parties hereby waive, in\nadvance, any claims (including, without limitation, breach of contract) in connection with a Transaction unless and until the Parties have entered\ninto a final definitive agreement. The Parties also agree that unless and until a final definitive agreement regarding a Transaction has been\nexecuted and delivered, neither Party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of\nthis Agreement, except for the matters specifically agreed to herein.\n15. Securities Laws. Each Party is aware, and will advise its Representatives who are informed of the matters that are the subject of this\nAgreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any Person who has received\nmaterial, non-public information from the issuer of such securities and on the communication of such information to any other Person when it is\nreasonably foreseeable that such other Person is likely to purchase or sell such securities in reliance upon such information.\n16. Miscellaneous. This Agreement embodies the entire understanding between the Parties regarding the subject matter of this Agreement\nand supersedes any and all other negotiations, correspondence, understandings and agreements between the Parties or their respective\nRepresentatives regarding such subject matter, including, without limitation, that, solely with respect to Evaluation Material being shared in\nconnection with the Transaction after the Effective Date, this Agreement shall supersede that certain Confidential Information Exchange\nAgreement, dated as of September 22, 2010 (the “Prior NDA”), between SanDisk and the Company (provided, that (i) the Prior NDA shall be\nsuperseded solely for purposes of Evaluation Material shared by the Company to SanDisk in connection with the Transaction and (ii) each Party\nshall retain its rights against the other Party for any violation or breach of the Prior NDA) and any “clickthrough” agreement relating to the use\nand disclosure of Confidential Information agreed to by SanDisk or its Representatives in connection with their access to any datasite maintained\nin connection with a Transaction. This Agreement shall not be modified except by a writing duly executed on behalf of the Party against whom\nsuch modification is sought to be enforced. The failure of any Party to require performance by another Party of any provision of this Agreement\nshall in no way constitute a waiver thereof or affect the full right to require such performance at any time thereafter. Should any provisions of\nthis Agreement be found unenforceable, the remainder shall still be in effect. This Agreement has been negotiated by the Parties and the\nlanguage of this Agreement shall not be construed for or against either Party. References to either Party in this Agreement shall include such\nParty’s direct and indirect subsidiaries, it being understood that each Party shall cause its direct and indirect subsidiaries to comply with the terms\nof this Agreement as if it were a Party hereto. Either the original or copies, including, without limitation, facsimile transmissions, of this\nAgreement, may be executed in counterparts, each of which shall be an original as against any Party whose signature appears on such counterpart\nand all of which together shall constitute one and the same instrument.\n[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]\n6\nThe Parties have caused their respective duly authorized representatives to execute and deliver this Agreement as of the Effective Date.\nFUSION-IO, INC.\nSANDISK CORPORATION\nBy: /s/ Shane Robison\nBy: /s/ Sumit Sadana\nName: Shane Robison\nName: Sumit Sadana\nTitle: Chief Executive Officer\nTitle: Executive Vice President and Chief Strategy Officer\n[SIGNATURE PAGE TO NONDISCLOSURE AGREEMENT]\n7
6bf5ad14a39723341b1baea170405bf9.pdf	effective_date jurisdiction party term	EX-99.(E)(4) 3 dex99e4.htm CONFIDENTIALITY LETTER AGREEMENT FROM THE COMPANY TO THE\nPARENT\nExhibit (e)(4)\nTODD SHIPYARDS CORPORATION\n1801 – 16 Ave. SW\nSeattle, WA 99134\nJune 8, 2010\nVigor Industrial, LLC\nAttention: Frank Foti\n5555 N. Channel Avenue\nPortland, Oregon 97217\nCONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction (the “Transaction”) with Todd Shipyards Corporation, a Delaware corporation\nand/or its subsidiary corporations (collectively, the “Company”) pursuant to which you or your Affiliate (as defined herein) may acquire some or all\nof the equity or assets of the Company, the Company is prepared to provide to you reasonable access to and records relating to properties owned,\nleased, or operated by the Company; and certain other information concerning the past, current or prospective business, operations, assets and\nliabilities of the Company, certain of which information is either non-public, confidential or proprietary in nature. For purposes of this letter\nagreement, the term “Affiliate” shall mean any corporation, company or other business entity directly or indirectly controlling you or under your\ncontrol. The term “control” means (i) direct or indirect beneficial ownership of greater than fifty percent (50%) of the voting securities or greater\nthan fifty percent (50%) interest in the income of such corporation, company, or other business entity or (ii) the actual present capacity to elect a\nmajority of the directors of such corporation, company, or other business entity.\nAs a condition to such information concerning the business, operations, assets and liabilities of the Company being furnished to you, your\nAffiliate and/or your Representatives (as defined below) you and your Affiliate agree to treat any information concerning the Company (whether\nprepared by the Company, its advisors, or otherwise, and irrespective of whether furnished orally or in writing or gathered by inspection, and\nregardless of whether specifically identified as “confidential” or “privileged” or both) which is or was furnished to you, your Affiliate or your\nRepresentatives before or after the date of this letter agreement by or on behalf of the Company (herein collectively referred to as the “Evaluation\nMaterial”) in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions hereinafter set forth.\nAs used in this letter agreement, the term “Representatives” means the directors, officers, partners, employees, representatives, financial, legal,\naccounting and other advisors, affiliates and associates (as those terms are defined in Rule 12b-2 under the Securities Exchange Act of 1934) and\nagents of you or the Company, as the case may be. The term “person” as used in this Agreement shall be broadly interpreted to include without\nlimitation the media and any corporation, partnership, group, individual or other entity.\n1\nth\nThe term “Evaluation Material” also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents\nprepared by you, your Affiliate and/or your Representatives which contain, reflect or are based upon, in whole or in part, the information furnished\nto you, your Affiliate or your Representatives pursuant hereto. The term “Evaluation Material” does not include information which (i) is or becomes\ngenerally available to the public other than as a result of a disclosure by you, your Affiliate or your Representatives; or (ii) becomes available to you\non a non-confidential basis from a source other than the Company or any of its Representatives, provided that such source is not known by you to be\nbound by a confidentiality agreement with or other contractual obligation of confidentiality to the Company or any other party with respect to such\ninformation; (iii) was already in your possession or the possession of your Affiliate or Representatives free of any restriction as to its use or\ndisclosure; or (iv) was independently developed by you or your Affiliate or Representatives without using or referring to the Evaluation Material.\nYou hereby agree that you, your Affiliate and your Representatives shall use the Evaluation Material solely for the purpose of evaluating the\nTransaction, that the Evaluation Material will be kept confidential, and that you, your Affiliate and your Representatives will not disclose any of the\nEvaluation Material in any manner whatsoever; provided, however, that: (i) you may make any disclosure of such information to which the\nCompany gives its prior written consent, and (ii) any of such information may be disclosed to your Affiliate or Representatives who need to know\nsuch information for the sole purpose of evaluating the Transaction, who agree to keep such information confidential, and who are provided with a\ncopy of this letter agreement and agree to be bound by the confidentiality terms hereof. In any event, you shall be responsible for any breach of this\nletter agreement by any of your Affiliates or Representatives and you agree to, at your sole expense, take all reasonable measures (including but not\nlimited to court proceedings) to restrain your Affiliate and/or Representatives from prohibited or unauthorized disclosure or use of the Evaluation\nMaterial.\nIn the event you wish to provide any Evaluation Material to potential sources of debt or equity, you must seek our prior written consent to do\nso. The Company will respond promptly and will not unreasonably withhold such approval. In the event the Company consents to such disclosure,\nthe recipients of Evaluation Material pursuant to such consent will be required to sign a confidentiality agreement in substantially the form of this\nAgreement prior to any such disclosure. Any such recipient of Evaluation Material will be deemed one of your Representatives for purposes of this\nAgreement.\nWithout the prior written consent of the other party, neither you nor the Company, nor the Representatives of either party shall disclose to any\nother person the fact that: (i) the Evaluation Material has been made available to you or that you have inspected any portion of the Evaluation\nMaterial; (ii) that this letter agreement had been entered into; and/or (iii) that discussion or negotiations are taking place with you concerning the\nTransaction, or any of the terms, conditions or other facts with respect thereto (except as otherwise required by applicable law, regulation, legal\nprocess or pursuant to applicable requirements of any listing agreement with or the rules of any securities exchange or similar regulatory body).\nWithout the written consent of the Company, you shall not contact (except in the normal and ordinary course of business unrelated to a possible\nTransaction) or discuss the possibility of a Transaction with any employee or director of the Company or its subsidiary corporations, other than\nStephen G. Welch, the President and CEO of the Company, Patrick Hodgson, Chairman of the Board, and Joseph D. Lehrer, a member of the Board\nof the Company.\n2\nIn the event that you, your Affiliate or any of your Representatives are requested or required (by law, regulation, process, the rules of a\nrecognized stock exchange, oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand or other similar process) to disclose any of the Evaluation Material, you, or such Affiliate or Representative, as the case may be, shall\nprovide the Company with prompt written notice of any such request or requirement so that the Company may seek a protective order or other\nappropriate remedy and/or waive your, or such Affiliate or Representative’s compliance with the provisions of this letter agreement. Notwithstanding\nany other provision of this letter agreement, if, in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you,\nyour Affiliate or any of your Representatives are nonetheless, in the written opinion of your outside counsel, legally compelled to disclose\nEvaluation Material or else stand liable for contempt or suffer other censure or penalty, you, your Affiliate or your Representatives may, without\nliability under this letter agreement, disclose only that portion of the Evaluation Material which such counsel advises you, your Affiliate or your\nRepresentative that is legally required to be disclosed, provided that you, your Affiliate and/or your Representative exercise commercially reasonable\nefforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by cooperating with the Company to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation Material by such tribunal.\nIf either you or the Company decides that it does not wish to proceed with the Transaction, such party will promptly inform the other party of\nthat decision. In that case, or at any time upon the request of the Company for any reason, you will as soon as reasonably practicable deliver to the\nCompany all Evaluation Material (and all copies thereof) furnished to you, your Affiliate and/or your Representatives by or on behalf of the\nCompany pursuant hereto or at your option destroy such Evaluation Material. In the event of such a decision or request, all other Evaluation Material\nprepared by you, your Affiliate and/or your Representatives shall be destroyed and no copy thereof shall be retained except as otherwise permitted\nby this paragraph. All Evaluation Material in electronic or digital form shall be deleted in a manner that generally will not allow further access by\nyou, your Affiliates or Representatives except as otherwise permitted by this paragraph. Such destruction of Evaluation Material shall be certified in\nwriting to the Company by your Chief Executive Officer. Notwithstanding the return or destruction of the Evaluation Material, you, your Affiliate\nand your Representatives will continue to be bound by your obligations of confidentiality and other obligations under this letter agreement.\nEvaluation Materials prepared by your attorney and kept only in your attorney’s file may be retained in accordance with your attorney’s firm\nretention requirements.\n3\nYou understand and acknowledge that the Company is providing the Evaluation Material in good faith but that neither the Company, nor any\nof its affiliates or representatives (including, without limitation any of the Company’s directors, officers, employees, or agents) make any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree that neither the Company\nnor any of its affiliates or representatives (including, without limitation any of Company’s directors, officers, employees, or agents) shall have any\nliability to you, your Affiliate or to any of your Representatives relating to or resulting from the use of the Evaluation Material or any errors therein\nor omissions therefrom. Only those representations or warranties which are made to you, your Affiliate or your Representatives in a final definitive\nagreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have\nany legal effect, and you agree that if you, your Affiliate or your Representatives determine to engage in the Transaction, such determination will be\nbased solely on the terms of such written agreement and on your own investigation, analysis and assessment of the business to be acquired.\nYou hereby acknowledge that you are aware (and that your Affiliate and/or Representatives who are apprised of this matter have been or will\nbe advised) that the United States securities laws restrict persons with material, non-public information about a company obtained directly or\nindirectly from that company from acquiring or disposing securities of such company or from otherwise engaging in any transaction involving the\ncapital stock of such company, including privately negotiated or open market purchases and sales of such stock, or from communicating such\ninformation to any other person under circumstances in which it is reasonable that such person is likely to purchase or sell such securities.\nAccordingly, you agree that you and your Affiliates will refrain from trading in the securities of the Company at any time you are in possession of\nmaterial, non-public information pertaining thereto. Without limiting the foregoing, neither you nor your Affiliates or Representatives may purchase\nany securities of the Company for a period of three (3) months following the receipt of any Evaluation Material, and for a period of one (1) year\nfollowing the date of this agreement, you and your Affiliates, or any group (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended) in which you or your Affiliate is a member, shall not make a tender offer for securities of the Company and shall not participate in the\nsolicitation of proxies to vote at any meeting of the shareholders of that Company.\nFor a period of two (2) years from the date hereof, neither you, your Affiliate will, without the prior written consent of the Company, (i) either\ndirectly or indirectly solicit or cause to be solicited the employment of or hire any person who is now and within [6] months of such time is an\nofficer of the Company or any of its subsidiary corporations or any person who serves in any management or supervisory position with the\nCompany; provided, however, that general solicitations of employment including through advertisements in trade publications and the use of search\nagencies not directed at such officers or management or supervisory employees and the hiring of any person so identified shall not be a breach of this\nprovision; or (ii) initiate or cause to be initiated any communications other than in the ordinary course of business and not for the purpose of learning\ninformation that will be used in considering the Transaction with any person known by you to be a customer, supplier, client, account or employee of\nthe Company concerning the Evaluation Material or the Transaction.\n4\nIt is further understood and agreed that money damages may not be a sufficient remedy for any breach of this letter agreement by you, your\nAffiliate or any of your Representatives and that the Company may be entitled to seek equitable relief, including injunction and specific\nperformance, as a remedy for any such breach, and you further agree to waive any requirement for the securing or posting of any bond by the\nCompany in connection with such remedy for a breach of this letter agreement by you, your Affiliate or any of your Representatives. Such remedies\nshall not be deemed to be the exclusive remedies for a breach by you, your Affiliate and/or your Representatives of this letter agreement, but shall be\nin addition to all other remedies available at law or equity to the Company. You hereby agree to indemnify, defend and hold the Company and its\nrepresentatives harmless against all losses, claims, damages, liabilities, costs and expenses (including reasonable attorney’s fees and the cost of\nenforcing this indemnity) arising out of or resulting from the Company’s enforcement of its rights under this letter agreement to the extent that you,\nyour Affiliates or your Representatives have violated the terms of this letter agreement.\nIt is understood and agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power\nor privilege hereunder.\nIn the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines that you, your Affiliate or any of your\nRepresentatives have breached this letter agreement, then you shall be liable and pay to the Company the reasonable legal fees incurred by the\nCompany in connection with such litigation, including any appeal therefrom. Similarly, if the court determines you, your Affiliate and your\nRepresentatives have not breached this letter agreement, then the Company shall be liable and pay your reasonable legal fees incurred in connection\nwith such litigation, including any appeal therefrom.\nThis letter agreement shall be governed by and construed in accordance with the laws of the State of Washington, without giving effect to\nprinciples of conflict of laws thereof. You hereby agree and consent to personal jurisdiction and service and venue in any federal or state court within\nthe State of Washington having subject matter jurisdiction, for the purpose of any action, suit, or proceeding arising out of or relating to this letter\nagreement. The invalidity or unenforceability of any provision of this letter agreement shall not affect the validity or enforceability of any other\nprovisions of this letter agreement, which shall remain in full force and effect. The provisions set forth in this letter agreement may be modified or\nwaived only by a separate writing signed by the Company and you, as applicable, expressly so modifying or waiving such agreements.\nThe parties agree that no contract or agreement relating to the Transaction shall be deemed to exist as of the date of this letter agreement, and\nneither you nor the Company shall have any legal obligation of any kind whatsoever with respect to the Transaction (including by virtue of this letter\nagreement), unless and until a definitive agreement has been executed and delivered by you and the Company.\n5\nThis letter agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which\ntogether shall be deemed one and the same agreement.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company with respect to the subject matter hereof.\n*\n*\n*\n*\n*\nVery truly yours,\nTODD SHIPYARDS CORPORATION\nBy: /s/ Stephen G. Welch\nName: Stephen G. Welch\nTitle: President\nTHE PROVISIONS OF THE FOREGOING\nLETTER ARE AGREED TO AND ACKNOWLEDGED\nBY THE UNDERSIGNED:\nVIGOR INDUSTRIAL, LLC\nBy: /s/ Frank Foti\nName: Frank Foti\nTitle: President\n6	EX-99.(E)(4) 3 dex99e4.htm CONFIDENTIALITY LETTER AGREEMENT FROM THE COMPANY TO THE\nPARENT\nExhibit (e)(4)\nTODD SHIPYARDS CORPORATION\n1801 — 16t Ave. SW\nSeattle, WA 99134\nJune 8, 2010\nVigor Industrial, LLC\nAttention: Frank Foti\n5555 N. Channel Avenue\nPortland, Oregon 97217\nCONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction (the “Transaction”) with Todd Shipyards Corporation, a Delaware corporation\nand/or its subsidiary corporations (collectively, the “Company”) pursuant to which you or your Affiliate (as defined herein) may acquire some or all\nof the equity or assets of the Company, the Company is prepared to provide to you reasonable access to and records relating to properties owned,\nleased, or operated by the Company; and certain other information concerning the past, current or prospective business, operations, assets and\nliabilities of the Company, certain of which information is either non-public, confidential or proprietary in nature. For purposes of this letter\nagreement, the term “Affiliate” shall mean any corporation, company or other business entity directly or indirectly controlling you or under your\ncontrol. The term “control” means (i) direct or indirect beneficial ownership of greater than fifty percent (50%) of the voting securities or greater\nthan fifty percent (50%) interest in the income of such corporation, company, or other business entity or (ii) the actual present capacity to elect a\nmajority of the directors of such corporation, company, or other business entity.\nAs a condition to such information concerning the business, operations, assets and liabilities of the Company being furnished to you, your\nAffiliate and/or your Representatives (as defined below) you and your Affiliate agree to treat any information concerning the Company (whether\nprepared by the Company, its advisors, or otherwise, and irrespective of whether furnished orally or in writing or gathered by inspection, and\nregardless of whether specifically identified as “confidential” or “privileged” or both) which is or was furnished to you, your Affiliate or your\nRepresentatives before or after the date of this letter agreement by or on behalf of the Company (herein collectively referred to as the “Evaluation\nMaterial”) in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions hereinafter set forth.\nAs used in this letter agreement, the term “Representatives” means the directors, officers, partners, employees, representatives, financial, legal,\naccounting and other advisors, affiliates and associates (as those terms are defined in Rule 12b-2 under the Securities Exchange Act of 1934) and\nagents of you or the Company, as the case may be. The term “person” as used in this Agreement shall be broadly interpreted to include without\nlimitation the media and any corporation, partnership, group, individual or other entity.\n \n1\nThe term “Evaluation Material” also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents\nprepared by you, your Affiliate and/or your Representatives which contain, reflect or are based upon, in whole or in part, the information furnished\nto you, your Affiliate or your Representatives pursuant hereto. The term “Evaluation Material” does not include information which (i) is or becomes\ngenerally available to the public other than as a result of a disclosure by you, your Affiliate or your Representatives; or (ii) becomes available to you\non a non-confidential basis from a source other than the Company or any of its Representatives, provided that such source is not known by you to be\nbound by a confidentiality agreement with or other contractual obligation of confidentiality to the Company or any other party with respect to such\ninformation; (iii) was already in your possession or the possession of your Affiliate or Representatives free of any restriction as to its use or\ndisclosure; or (iv) was independently developed by you or your Affiliate or Representatives without using or referring to the Evaluation Material.\nYou hereby agree that you, your Affiliate and your Representatives shall use the Evaluation Material solely for the purpose of evaluating the\nTransaction, that the Evaluation Material will be kept confidential, and that you, your Affiliate and your Representatives will not disclose any of the\nEvaluation Material in any manner whatsoever; provided, however, that: (i) you may make any disclosure of such information to which the\nCompany gives its prior written consent, and (ii) any of such information may be disclosed to your Affiliate or Representatives who need to know\nsuch information for the sole purpose of evaluating the Transaction, who agree to keep such information confidential, and who are provided with a\ncopy of this letter agreement and agree to be bound by the confidentiality terms hereof. In any event, you shall be responsible for any breach of this\nletter agreement by any of your Affiliates or Representatives and you agree to, at your sole expense, take all reasonable measures (including but not\nlimited to court proceedings) to restrain your Affiliate and/or Representatives from prohibited or unauthorized disclosure or use of the Evaluation\nMaterial.\n \n \nIn the event you wish to provide any Evaluation Material to potential sources of debt or equity, you must seek our prior written consent to do\nso. The Company will respond promptly and will not unreasonably withhold such approval. In the event the Company consents to such disclosure,\nthe recipients of Evaluation Material pursuant to such consent will be required to sign a confidentiality agreement in substantially the form of this\nAgreement prior to any such disclosure. Any such recipient of Evaluation Material will be deemed one of your Representatives for purposes of this\nAgreement.\nWithout the prior written consent of the other party, neither you nor the Company, nor the Representatives of either party shall disclose to any\nother person the fact that: (i) the Evaluation Material has been made available to you or that you have inspected any portion of the Evaluation\nMaterial; (ii) that this letter agreement had been entered into; and/or (iii) that discussion or negotiations are taking place with you concerning the\nTransaction, or any of the terms, conditions or other facts with respect thereto (except as otherwise required by applicable law, regulation, legal\nprocess or pursuant to applicable requirements of any listing agreement with or the rules of any securities exchange or similar regulatory body).\nWithout the written consent of the Company, you shall not contact (except in the normal and ordinary course of business unrelated to a possible\nTransaction) or discuss the possibility of a Transaction with any employee or director of the Company or its subsidiary corporations, other than\nStephen G. Welch, the President and CEO of the Company, Patrick Hodgson, Chairman of the Board, and Joseph D. Lehrer, a member of the Board\nof the Company.\nIn the event that you, your Affiliate or any of your Representatives are requested or required (by law, regulation, process, the rules of a\nrecognized stock exchange, oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand or other similar process) to disclose any of the Evaluation Material, you, or such Affiliate or Representative, as the case may be, shall\nprovide the Company with prompt written notice of any such request or requirement so that the Company may seek a protective order or other\nappropriate remedy and/or waive your, or such Affiliate or Representative’s compliance with the provisions of this letter agreement. Notwithstanding\nany other provision of this letter agreement, if, in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you,\nyour Affiliate or any of your Representatives are nonetheless, in the written opinion of your outside counsel, legally compelled to disclose\nEvaluation Material or else stand liable for contempt or suffer other censure or penalty, you, your Affiliate or your Representatives may, without\nliability under this letter agreement, disclose only that portion of the Evaluation Material which such counsel advises you, your Affiliate or your\nRepresentative that is legally required to be disclosed, provided that you, your Affiliate and/or your Representative exercise commercially reasonable\nefforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by cooperating with the Company to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation Material by such tribunal.\nIf either you or the Company decides that it does not wish to proceed with the Transaction, such party will promptly inform the other party of\nthat decision. In that case, or at any time upon the request of the Company for any reason, you will as soon as reasonably practicable deliver to the\nCompany all Evaluation Material (and all copies thereof) furnished to you, your Affiliate and/or your Representatives by or on behalf of the\nCompany pursuant hereto or at your option destroy such Evaluation Material. In the event of such a decision or request, all other Evaluation Material\nprepared by you, your Affiliate and/or your Representatives shall be destroyed and no copy thereof shall be retained except as otherwise permitted\nby this paragraph. All Evaluation Material in electronic or digital form shall be deleted in a manner that generally will not allow further access by\nyou, your Affiliates or Representatives except as otherwise permitted by this paragraph. Such destruction of Evaluation Material shall be certified in\nwriting to the Company by your Chief Executive Officer. Notwithstanding the return or destruction of the Evaluation Material, you, your Affiliate\nand your Representatives will continue to be bound by your obligations of confidentiality and other obligations under this letter agreement.\nEvaluation Materials prepared by your attorney and kept only in your attorney’s file may be retained in accordance with your attorney’s firm\nretention requirements.\nYou understand and acknowledge that the Company is providing the Evaluation Material in good faith but that neither the Company, nor any\nof its affiliates or representatives (including, without limitation any of the Company’s directors, officers, employees, or agents) make any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree that neither the Company\nnor any of its affiliates or representatives (including, without limitation any of Company’s directors, officers, employees, or agents) shall have any\nliability to you, your Affiliate or to any of your Representatives relating to or resulting from the use of the Evaluation Material or any errors therein\nor omissions therefrom. Only those representations or warranties which are made to you, your Affiliate or your Representatives in a final definitive\nagreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have\nany legal effect, and you agree that if you, your Affiliate or your Representatives determine to engage in the Transaction, such determination will be\nbased solely on the terms of such written agreement and on your own investigation, analysis and assessment of the business to be acquired.\nYou hereby acknowledge that you are aware (and that your Affiliate and/or Representatives who are apprised of this matter have been or will\nbe advised) that the United States securities laws restrict persons with material, non-public information about a company obtained directly or\nindirectly from that company from acquiring or disposing securities of such company or from otherwise engaging in any transaction involving the\ncapital stock of such company, including privately negotiated or open market purchases and sales of such stock, or from communicating such\ninformation to any other person under circumstances in which it is reasonable that such person is likely to purchase or sell such securities.\nAccordingly, you agree that you and your Affiliates will refrain from trading in the securities of the Company at any time you are in possession of\nmaterial, non-public information pertaining thereto. Without limiting the foregoing, neither you nor your Affiliates or Representatives may purchase\nany securities of the Company for a period of three (3) months following the receipt of any Evaluation Material, and for a period of one (1) year\nfollowing the date of this agreement, you and your Affiliates, or any group (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended) in which you or your Affiliate is a member, shall not make a tender offer for securities of the Company and shall not participate in the\nsolicitation of proxies to vote at any meeting of the shareholders of that Company.\nFor a period of two (2) years from the date hereof, neither you, your Affiliate will, without the prior written consent of the Company, (i) either\ndirectly or indirectly solicit or cause to be solicited the employment of or hire any person who is now and within [6] months of such time is an\nofficer of the Company or any of its subsidiary corporations or any person who serves in any management or supervisory position with the\nCompany; provided, however, that general solicitations of employment including through advertisements in trade publications and the use of search\nagencies not directed at such officers or management or supervisory employees and the hiring of any person so identified shall not be a breach of this\nprovision; or (ii) initiate or cause to be initiated any communications other than in the ordinary course of business and not for the purpose of learning\ninformation that will be used in considering the Transaction with any person known by you to be a customer, supplier, client, account or employee of\nthe Company concerning the Evaluation Material or the Transaction.\nIt is further understood and agreed that money damages may not be a sufficient remedy for any breach of this letter agreement by you, your\nAffiliate or any of your Representatives and that the Company may be entitled to seek equitable relief, including injunction and specific\nperformance, as a remedy for any such breach, and you further agree to waive any requirement for the securing or posting of any bond by the\nCompany in connection with such remedy for a breach of this letter agreement by you, your Affiliate or any of your Representatives. Such remedies\nshall not be deemed to be the exclusive remedies for a breach by you, your Affiliate and/or your Representatives of this letter agreement, but shall be\nin addition to all other remedies available at law or equity to the Company. You hereby agree to indemnify, defend and hold the Company and its\nrepresentatives harmless against all losses, claims, damages, liabilities, costs and expenses (including reasonable attorney’s fees and the cost of\nenforcing this indemnity) arising out of or resulting from the Company’s enforcement of its rights under this letter agreement to the extent that you,\nyour Affiliates or your Representatives have violated the terms of this letter agreement.\nIt is understood and agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power\nor privilege hereunder.\nIn the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines that you, your Affiliate or any of your\nRepresentatives have breached this letter agreement, then you shall be liable and pay to the Company the reasonable legal fees incurred by the\nCompany in connection with such litigation, including any appeal therefrom. Similarly, if the court determines you, your Affiliate and your\nRepresentatives have not breached this letter agreement, then the Company shall be liable and pay your reasonable legal fees incurred in connection\nwith such litigation, including any appeal therefrom.\nThis letter agreement shall be governed by and construed in accordance with the laws of the State of Washington, without giving effect to\nprinciples of conflict of laws thereof. You hereby agree and consent to personal jurisdiction and service and venue in any federal or state court within\nthe State of Washington having subject matter jurisdiction, for the purpose of any action, suit, or proceeding arising out of or relating to this letter\nagreement. The invalidity or unenforceability of any provision of this letter agreement shall not affect the validity or enforceability of any other\nprovisions of this letter agreement, which shall remain in full force and effect. The provisions set forth in this letter agreement may be modified or\nwaived only by a separate writing signed by the Company and you, as applicable, expressly so modifying or waiving such agreements.\nThe parties agree that no contract or agreement relating to the Transaction shall be deemed to exist as of the date of this letter agreement, and\nneither you nor the Company shall have any legal obligation of any kind whatsoever with respect to the Transaction (including by virtue of this letter\nagreement), unless and until a definitive agreement has been executed and delivered by you and the Company.\n5\nThis letter agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which\ntogether shall be deemed one and the same agreement.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company with respect to the subject matter hereof.\n* * * * *\nVery truly yours,\nTODD SHIPYARDS CORPORATION\nBy:  /s/ Stephen G. Welch\nName: Stephen G. Welch\nTitle: President\nTHE PROVISIONS OF THE FOREGOING\nLETTER ARE AGREED TO AND ACKNOWLEDGED\nBY THE UNDERSIGNED:\nVIGOR INDUSTRIAL, LLC\nBy: /s/ Frank Foti\nName: Frank Foti\nTitle:  President	EX-99.(E)(4) 3 dex99e4.htm CONFIDENTIALITY LETTER AGREEMENT FROM THE COMPANY TO THE\nPARENT\nExhibit (e)(4)\nTODD SHIPYARDS CORPORATION\n1801 16th Ave. SW\nSeattle, WA 99134\nJune 8, 2010\nVigor Industrial, LLC\nAttention: Frank Foti\n5555 N. Channel Avenue\nPortland, Oregon 97217\nCONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction (the "Transaction") with Todd Shipyards Corporation, a Delaware corporation\nand/or its subsidiary corporations (collectively, the "Company") pursuant to which you or your Affiliate (as defined herein) may acquire some or all\nof the equity or assets of the Company, the Company is prepared to provide to you reasonable access to and records relating to properties owned,\nleased, or operated by the Company; and certain other information concerning the past, current or prospective business, operations, assets and\nliabilities of the Company, certain of which information is either non-public, confidential or proprietary in nature. For purposes of this letter\nagreement, the term "Affiliate" shall mean any corporation, company or other business entity directly or indirectly controlling you or under your\ncontrol. The term "control" means (i) direct or indirect beneficial ownership of greater than fifty percent (50%) of the voting securities or greater\nthan fifty percent (50%) interest in the income of such corporation, company, or other business entity or (ii) the actual present capacity to elect a\nmajority of the directors of such corporation, company, or other business entity.\nAs a condition to such information concerning the business, operations, assets and liabilities of the Company being furnished to you, your\nAffiliate and/or your Representatives (as defined below) you and your Affiliate agree to treat any information concerning the Company (whether\nprepared by the Company, its advisors, or otherwise, and irrespective of whether furnished orally or in writing or gathered by inspection, and\nregardless of whether specifically identified as "confidential" or "privileged" or both) which is or was furnished to you, your Affiliate or your\nRepresentatives before or after the date of this letter agreement by or on behalf of the Company (herein collectively referred to as the "Evaluation\nMaterial") in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions hereinafter set forth.\nAs used in this letter agreement, the term "Representatives" means the directors, officers, partners, employees, representatives, financial, legal,\naccounting and other advisors, affiliates and associates (as those terms are defined in Rule 12b-2 under the Securities Exchange Act of 1934) and\nagents of you or the Company, as the case may be. The term "person" as used in this Agreement shall be broadly interpreted to include without\nlimitation the media and any corporation, partnership, group, individual or other entity.\n1\nThe term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents\nprepared by you, your Affiliate and/or your Representatives which contain, reflect or are based upon, in whole or in part, the information furnished\nto you, your Affiliate or your Representatives pursuant hereto. The term "Evaluation Material" does not include information which (i) is or becomes\ngenerally available to the public other than as a result of a disclosure by you, your Affiliate or your Representatives; or (ii) becomes available to you\non a non-confidential basis from a source other than the Company or any of its Representatives, provided that such source is not known by you to be\nbound by a confidentiality agreement with or other contractual obligation of confidentiality to the Company or any other party with respect to such\ninformation; (iii) was already in your possession or the possession of your Affiliate or Representatives free of any restriction as to its use or\ndisclosure; or (iv) was independently developed by you or your Affiliate or Representatives without using or referring to the Evaluation Material.\nYou hereby agree that you, your Affiliate and your Representatives shall use the Evaluation Material solely for the purpose of evaluating the\nTransaction, that the Evaluation Material will be kept confidential, and that you, your Affiliate and your Representatives will not disclose any of the\nEvaluation Material in any manner whatsoever; provided, however, that: (i) you may make any disclosure of such information to which the\nCompany gives its prior written consent, and (ii) any of such information may be disclosed to your Affiliate or Representatives who need to know\nsuch information for the sole purpose of evaluating the Transaction, who agree to keep such information confidential, and who are provided with\na\ncopy of this letter agreement and agree to be bound by the confidentiality terms hereof. In any event, you shall be responsible for any breach of\nthis\nletter agreement by any of your Affiliates or Representatives and you agree to, at your sole expense, take all reasonable measures (including but not\nlimited to court proceedings) to restrain your Affiliate and/or Representatives from prohibited or unauthorized disclosure or use of the Evaluation\nMaterial.\nIn\nthe event you wish to provide any Evaluation Material to potential sources of debt or equity, you must seek our prior written consent to do\nso.\nThe Company will respond promptly and will not unreasonably withhold such approval. In the event the Company consents to such disclosure,\nthe recipients of Evaluation Material pursuant to such consent will be required to sign a confidentiality agreement in substantially the form of this\nAgreement prior to any such disclosure. Any such recipient of Evaluation Material will be deemed one of your Representatives for purposes of this\nAgreement.\nWithout the prior written consent of the other party, neither you nor the Company, nor the Representatives of either party shall disclose to any\nother person the fact that: (i) the Evaluation Material has been made available to you or that you have inspected any portion of the Evaluation\nMaterial; (ii) that this letter agreement had been entered into; and/or (iii) that discussion or negotiations are taking place with you concerning the\nTransaction, or any of the terms, conditions or other facts with respect thereto (except as otherwise required by applicable law, regulation, legal\nprocess or pursuant to applicable requirements of any listing agreement with or the rules of any securities exchange or similar regulatory body).\nWithout the written consent of the Company, you shall not contact (except in the normal and ordinary course of business unrelated to a possible\nTransaction) or discuss the possibility of a Transaction with any employee or director of the Company or its subsidiary corporations, other than\nStephen G. Welch, the President and CEO of the Company, Patrick Hodgson, Chairman of the Board, and Joseph D. Lehrer, a member of the Board\nof the Company.\n2\nIn the event that you, your Affiliate or any of your Representatives are requested or required (by law, regulation, process, the rules of a\nrecognized stock exchange, oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand or other similar process) to disclose any of the Evaluation Material, you, or such Affiliate or Representative, as the case may be, shall\nprovide the Company with prompt written notice of any such request or requirement so that the Company may seek a protective order or other\nappropriate remedy and/or waive your, or such Affiliate or Representative's compliance with the provisions of this letter agreement. Notwithstanding\nany other provision of this letter agreement, if, in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you,\nyour Affiliate or any of your Representatives are nonetheless, in the written opinion of your outside counsel, legally compelled to disclose\nEvaluation Material or else stand liable for contempt or suffer other censure or penalty, you, your Affiliate or your Representatives may, without\nliability under this letter agreement, disclose only that portion of the Evaluation Material which such counsel advises you, your Affiliate or your\nRepresentative that is legally required to be disclosed, provided that you, your Affiliate and/or your Representative exercise commercially reasonable\nefforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by cooperating with the Company to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation Material by such tribunal.\nIf either you or the Company decides that it does not wish to proceed with the Transaction, such party will promptly inform the other party of\nthat decision. In that case, or at any time upon the request of the Company for any reason, you will as soon as reasonably practicable deliver to the\nCompany all Evaluation Material (and all copies thereof) furnished to you, your Affiliate and/or your Representatives by or on behalf of the\nCompany pursuant hereto or at your option destroy such Evaluation Material. In the event of such a decision or request, all other Evaluation Material\nprepared by you, your Affiliate and/or your Representatives shall be destroyed and no copy thereof shall be retained except as otherwise permitted\nby this paragraph. All Evaluation Material in electronic or digital form shall be deleted in a manner that generally will not allow further access by\nyou, your Affiliates or Representatives except as otherwise permitted by this paragraph. Such destruction of Evaluation Material shall be certified\nin\nwriting to the Company by your Chief Executive Officer. Notwithstanding the return or destruction of the Evaluation Material, you, your Affiliate\nand your Representatives will continue to be bound by your obligations of confidentiality and other obligations under this letter agreement.\nEvaluation\nMaterials prepared by your attorney and kept only in your attorney's file may be retained in accordance with your attorney's firm\nretention requirements.\n3\nYou understand and acknowledge that the Company is providing the Evaluation Material in good faith but that neither the Company, nor any\nof its affiliates or representatives (including, without limitation any of the Company's directors, officers, employees, or agents) make any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree that neither the Company\nnor any of its affiliates or representatives (including, without limitation any of Company's directors, officers, employees, or agents) shall have any\nliability to you, your Affiliate or to any of your Representatives relating to or resulting from the use of the Evaluation Material or any errors therein\nor omissions therefrom. Only those representations or warranties which are made to you, your Affiliate or your Representatives in a final definitive\nagreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have\nany legal effect, and you agree that if you, your Affiliate or your Representatives determine to engage in the Transaction, such determination will be\nbased solely on the terms of such written agreement and on your own investigation, analysis and assessment of the business to be acquired.\nYou hereby acknowledge that you are aware (and that your Affiliate and/or Representatives who are apprised of this matter have been or will\nbe advised) that the United States securities laws restrict persons with material, non-public information about a company obtained directly or\nindirectly from that company from acquiring or disposing securities of such company or from otherwise engaging in any transaction involving the\ncapital stock of such company, including privately negotiated or open market purchases and sales of such stock, or from communicating such\ninformation to any other person under circumstances in which it is reasonable that such person is likely to purchase or sell such securities.\nAccordingly, you agree that you and your Affiliates will refrain from trading in the securities of the Company at any time you are in possession of\nmaterial, non-public information pertaining thereto. Without limiting the foregoing, neither you nor your Affiliates or Representatives may purchase\nany securities of the Company for a period of three (3) months following the receipt of any Evaluation Material, and for a period of one (1) year\nfollowing the date of this agreement, you and your Affiliates, or any group (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended) in which you or your Affiliate is a member, shall not make a tender offer for securities of the Company and shall not participate in the\nsolicitation of proxies to vote at any meeting of the shareholders of that Company.\nFor a period of two (2) years from the date hereof, neither you, your Affiliate will, without the prior written consent of the Company, (i) either\ndirectly or indirectly solicit or cause to be solicited the employment of or hire any person who is now and within [6] months of such time is an\nofficer of the Company or any of its subsidiary corporations or any person who serves in any management or supervisory position with the\nCompany; provided, however, that general solicitations of employment including through advertisements in trade publications and the use of search\nagencies not directed at such officers or management or supervisory employees and the hiring of any person SO identified shall not be a breach of this\nprovision; or (ii) initiate or cause to be initiated any communications other than in the ordinary course of business and not for the purpose of learning\ninformation that will be used in considering the Transaction with any person known by you to be a customer, supplier, client, account or employee of\nthe Company concerning the Evaluation Material or the Transaction.\n4\nIt is further understood and agreed that money damages may not be a sufficient remedy for any breach of this letter agreement by you, your\nAffiliate or any of your Representatives and that the Company may be entitled to seek equitable relief, including injunction and specific\nperformance, as a remedy for any such breach, and you further agree to waive any requirement for the securing or posting of any bond by the\nCompany in connection with such remedy for a breach of this letter agreement by you, your Affiliate or any of your Representatives. Such remedies\nshall not be deemed to be the exclusive remedies for a breach by you, your Affiliate and/or your Representatives of this letter agreement, but shall be\nin addition to all other remedies available at law or equity to the Company. You hereby agree to indemnify, defend and hold the Company and its\nrepresentatives harmless against all losses, claims, damages, liabilities, costs and expenses (including reasonable attorney's fees and the cost of\nenforcing this indemnity) arising out of or resulting from the Company's enforcement of its rights under this letter agreement to the extent that you,\nyour Affiliates or your Representatives have violated the terms of this letter agreement.\nIt is understood and agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power\nor privilege hereunder.\nIn the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines that you, your Affiliate or any of your\nRepresentatives have breached this letter agreement, then you shall be liable and pay to the Company the reasonable legal fees incurred by the\nCompany in connection with such litigation, including any appeal therefrom. Similarly, if the court determines you, your Affiliate and your\nRepresentatives have not breached this letter agreement, then the Company shall be liable and pay your reasonable legal fees incurred in connection\nwith such litigation, including any appeal therefrom.\nThis letter agreement shall be governed by and construed in accordance with the laws of the State of Washington, without giving effect to\nprinciples of conflict of laws thereof. You hereby agree and consent to personal jurisdiction and service and venue in any federal or state court within\nthe State of Washington having subject matter jurisdiction, for the purpose of any action, suit, or proceeding arising out of or relating to this letter\nagreement. The invalidity or unenforceability of any provision of this letter agreement shall not affect the validity or enforceability of any other\nprovisions of this letter agreement, which shall remain in full force and effect. The provisions set forth in this letter agreement may be modified or\nwaived only by a separate writing signed by the Company and you, as applicable, expressly so modifying or waiving such agreements.\nThe parties agree that no contract or agreement relating to the Transaction shall be deemed to exist as of the date of this letter agreement, and\nneither you nor the Company shall have any legal obligation of any kind whatsoever with respect to the Transaction (including by virtue of this letter\nagreement), unless and until a definitive agreement has been executed and delivered by you and the Company.\n5\nThis letter agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which\ntogether shall be deemed one and the same agreement.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company with respect to the subject matter hereof.\n>\n*\n*\n*\n>\nVery truly yours,\nTODD SHIPYARDS CORPORATION\nBy:\n/s/ Stephen G. Welch\nName: Stephen G. Welch\nTitle: President\nTHE PROVISIONS OF THE FOREGOING\nLETTER ARE AGREED TO AND ACKNOWLEDGED\nBY THE UNDERSIGNED:\nVIGOR INDUSTRIAL, LLC\nBy:\n/s/ Frank Foti\nName: Frank Foti\nTitle: President\n6	EX-99.(E)(4) 3 dex99e4.htm CONFIDENTIALITY LETTER AGREEMENT FROM THE COMPANY TO THE\nPARENT\nExhibit (e)(4)\nTODD SHIPYARDS CORPORATION\n1801 – 16 Ave. SW\nSeattle, WA 99134\nJune 8, 2010\nVigor Industrial, LLC\nAttention: Frank Foti\n5555 N. Channel Avenue\nPortland, Oregon 97217\nCONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction (the “Transaction”) with Todd Shipyards Corporation, a Delaware corporation\nand/or its subsidiary corporations (collectively, the “Company”) pursuant to which you or your Affiliate (as defined herein) may acquire some or all\nof the equity or assets of the Company, the Company is prepared to provide to you reasonable access to and records relating to properties owned,\nleased, or operated by the Company; and certain other information concerning the past, current or prospective business, operations, assets and\nliabilities of the Company, certain of which information is either non-public, confidential or proprietary in nature. For purposes of this letter\nagreement, the term “Affiliate” shall mean any corporation, company or other business entity directly or indirectly controlling you or under your\ncontrol. The term “control” means (i) direct or indirect beneficial ownership of greater than fifty percent (50%) of the voting securities or greater\nthan fifty percent (50%) interest in the income of such corporation, company, or other business entity or (ii) the actual present capacity to elect a\nmajority of the directors of such corporation, company, or other business entity.\nAs a condition to such information concerning the business, operations, assets and liabilities of the Company being furnished to you, your\nAffiliate and/or your Representatives (as defined below) you and your Affiliate agree to treat any information concerning the Company (whether\nprepared by the Company, its advisors, or otherwise, and irrespective of whether furnished orally or in writing or gathered by inspection, and\nregardless of whether specifically identified as “confidential” or “privileged” or both) which is or was furnished to you, your Affiliate or your\nRepresentatives before or after the date of this letter agreement by or on behalf of the Company (herein collectively referred to as the “Evaluation\nMaterial”) in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions hereinafter set forth.\nAs used in this letter agreement, the term “Representatives” means the directors, officers, partners, employees, representatives, financial, legal,\naccounting and other advisors, affiliates and associates (as those terms are defined in Rule 12b-2 under the Securities Exchange Act of 1934) and\nagents of you or the Company, as the case may be. The term “person” as used in this Agreement shall be broadly interpreted to include without\nlimitation the media and any corporation, partnership, group, individual or other entity.\n1\nth\nThe term “Evaluation Material” also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents\nprepared by you, your Affiliate and/or your Representatives which contain, reflect or are based upon, in whole or in part, the information furnished\nto you, your Affiliate or your Representatives pursuant hereto. The term “Evaluation Material” does not include information which (i) is or becomes\ngenerally available to the public other than as a result of a disclosure by you, your Affiliate or your Representatives; or (ii) becomes available to you\non a non-confidential basis from a source other than the Company or any of its Representatives, provided that such source is not known by you to be\nbound by a confidentiality agreement with or other contractual obligation of confidentiality to the Company or any other party with respect to such\ninformation; (iii) was already in your possession or the possession of your Affiliate or Representatives free of any restriction as to its use or\ndisclosure; or (iv) was independently developed by you or your Affiliate or Representatives without using or referring to the Evaluation Material.\nYou hereby agree that you, your Affiliate and your Representatives shall use the Evaluation Material solely for the purpose of evaluating the\nTransaction, that the Evaluation Material will be kept confidential, and that you, your Affiliate and your Representatives will not disclose any of the\nEvaluation Material in any manner whatsoever; provided, however, that: (i) you may make any disclosure of such information to which the\nCompany gives its prior written consent, and (ii) any of such information may be disclosed to your Affiliate or Representatives who need to know\nsuch information for the sole purpose of evaluating the Transaction, who agree to keep such information confidential, and who are provided with a\ncopy of this letter agreement and agree to be bound by the confidentiality terms hereof. In any event, you shall be responsible for any breach of this\nletter agreement by any of your Affiliates or Representatives and you agree to, at your sole expense, take all reasonable measures (including but not\nlimited to court proceedings) to restrain your Affiliate and/or Representatives from prohibited or unauthorized disclosure or use of the Evaluation\nMaterial.\nIn the event you wish to provide any Evaluation Material to potential sources of debt or equity, you must seek our prior written consent to do\nso. The Company will respond promptly and will not unreasonably withhold such approval. In the event the Company consents to such disclosure,\nthe recipients of Evaluation Material pursuant to such consent will be required to sign a confidentiality agreement in substantially the form of this\nAgreement prior to any such disclosure. Any such recipient of Evaluation Material will be deemed one of your Representatives for purposes of this\nAgreement.\nWithout the prior written consent of the other party, neither you nor the Company, nor the Representatives of either party shall disclose to any\nother person the fact that: (i) the Evaluation Material has been made available to you or that you have inspected any portion of the Evaluation\nMaterial; (ii) that this letter agreement had been entered into; and/or (iii) that discussion or negotiations are taking place with you concerning the\nTransaction, or any of the terms, conditions or other facts with respect thereto (except as otherwise required by applicable law, regulation, legal\nprocess or pursuant to applicable requirements of any listing agreement with or the rules of any securities exchange or similar regulatory body).\nWithout the written consent of the Company, you shall not contact (except in the normal and ordinary course of business unrelated to a possible\nTransaction) or discuss the possibility of a Transaction with any employee or director of the Company or its subsidiary corporations, other than\nStephen G. Welch, the President and CEO of the Company, Patrick Hodgson, Chairman of the Board, and Joseph D. Lehrer, a member of the Board\nof the Company.\n2\nIn the event that you, your Affiliate or any of your Representatives are requested or required (by law, regulation, process, the rules of a\nrecognized stock exchange, oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand or other similar process) to disclose any of the Evaluation Material, you, or such Affiliate or Representative, as the case may be, shall\nprovide the Company with prompt written notice of any such request or requirement so that the Company may seek a protective order or other\nappropriate remedy and/or waive your, or such Affiliate or Representative’s compliance with the provisions of this letter agreement. Notwithstanding\nany other provision of this letter agreement, if, in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you,\nyour Affiliate or any of your Representatives are nonetheless, in the written opinion of your outside counsel, legally compelled to disclose\nEvaluation Material or else stand liable for contempt or suffer other censure or penalty, you, your Affiliate or your Representatives may, without\nliability under this letter agreement, disclose only that portion of the Evaluation Material which such counsel advises you, your Affiliate or your\nRepresentative that is legally required to be disclosed, provided that you, your Affiliate and/or your Representative exercise commercially reasonable\nefforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by cooperating with the Company to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation Material by such tribunal.\nIf either you or the Company decides that it does not wish to proceed with the Transaction, such party will promptly inform the other party of\nthat decision. In that case, or at any time upon the request of the Company for any reason, you will as soon as reasonably practicable deliver to the\nCompany all Evaluation Material (and all copies thereof) furnished to you, your Affiliate and/or your Representatives by or on behalf of the\nCompany pursuant hereto or at your option destroy such Evaluation Material. In the event of such a decision or request, all other Evaluation Material\nprepared by you, your Affiliate and/or your Representatives shall be destroyed and no copy thereof shall be retained except as otherwise permitted\nby this paragraph. All Evaluation Material in electronic or digital form shall be deleted in a manner that generally will not allow further access by\nyou, your Affiliates or Representatives except as otherwise permitted by this paragraph. Such destruction of Evaluation Material shall be certified in\nwriting to the Company by your Chief Executive Officer. Notwithstanding the return or destruction of the Evaluation Material, you, your Affiliate\nand your Representatives will continue to be bound by your obligations of confidentiality and other obligations under this letter agreement.\nEvaluation Materials prepared by your attorney and kept only in your attorney’s file may be retained in accordance with your attorney’s firm\nretention requirements.\n3\nYou understand and acknowledge that the Company is providing the Evaluation Material in good faith but that neither the Company, nor any\nof its affiliates or representatives (including, without limitation any of the Company’s directors, officers, employees, or agents) make any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree that neither the Company\nnor any of its affiliates or representatives (including, without limitation any of Company’s directors, officers, employees, or agents) shall have any\nliability to you, your Affiliate or to any of your Representatives relating to or resulting from the use of the Evaluation Material or any errors therein\nor omissions therefrom. Only those representations or warranties which are made to you, your Affiliate or your Representatives in a final definitive\nagreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have\nany legal effect, and you agree that if you, your Affiliate or your Representatives determine to engage in the Transaction, such determination will be\nbased solely on the terms of such written agreement and on your own investigation, analysis and assessment of the business to be acquired.\nYou hereby acknowledge that you are aware (and that your Affiliate and/or Representatives who are apprised of this matter have been or will\nbe advised) that the United States securities laws restrict persons with material, non-public information about a company obtained directly or\nindirectly from that company from acquiring or disposing securities of such company or from otherwise engaging in any transaction involving the\ncapital stock of such company, including privately negotiated or open market purchases and sales of such stock, or from communicating such\ninformation to any other person under circumstances in which it is reasonable that such person is likely to purchase or sell such securities.\nAccordingly, you agree that you and your Affiliates will refrain from trading in the securities of the Company at any time you are in possession of\nmaterial, non-public information pertaining thereto. Without limiting the foregoing, neither you nor your Affiliates or Representatives may purchase\nany securities of the Company for a period of three (3) months following the receipt of any Evaluation Material, and for a period of one (1) year\nfollowing the date of this agreement, you and your Affiliates, or any group (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended) in which you or your Affiliate is a member, shall not make a tender offer for securities of the Company and shall not participate in the\nsolicitation of proxies to vote at any meeting of the shareholders of that Company.\nFor a period of two (2) years from the date hereof, neither you, your Affiliate will, without the prior written consent of the Company, (i) either\ndirectly or indirectly solicit or cause to be solicited the employment of or hire any person who is now and within [6] months of such time is an\nofficer of the Company or any of its subsidiary corporations or any person who serves in any management or supervisory position with the\nCompany; provided, however, that general solicitations of employment including through advertisements in trade publications and the use of search\nagencies not directed at such officers or management or supervisory employees and the hiring of any person so identified shall not be a breach of this\nprovision; or (ii) initiate or cause to be initiated any communications other than in the ordinary course of business and not for the purpose of learning\ninformation that will be used in considering the Transaction with any person known by you to be a customer, supplier, client, account or employee of\nthe Company concerning the Evaluation Material or the Transaction.\n4\nIt is further understood and agreed that money damages may not be a sufficient remedy for any breach of this letter agreement by you, your\nAffiliate or any of your Representatives and that the Company may be entitled to seek equitable relief, including injunction and specific\nperformance, as a remedy for any such breach, and you further agree to waive any requirement for the securing or posting of any bond by the\nCompany in connection with such remedy for a breach of this letter agreement by you, your Affiliate or any of your Representatives. Such remedies\nshall not be deemed to be the exclusive remedies for a breach by you, your Affiliate and/or your Representatives of this letter agreement, but shall be\nin addition to all other remedies available at law or equity to the Company. You hereby agree to indemnify, defend and hold the Company and its\nrepresentatives harmless against all losses, claims, damages, liabilities, costs and expenses (including reasonable attorney’s fees and the cost of\nenforcing this indemnity) arising out of or resulting from the Company’s enforcement of its rights under this letter agreement to the extent that you,\nyour Affiliates or your Representatives have violated the terms of this letter agreement.\nIt is understood and agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power\nor privilege hereunder.\nIn the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines that you, your Affiliate or any of your\nRepresentatives have breached this letter agreement, then you shall be liable and pay to the Company the reasonable legal fees incurred by the\nCompany in connection with such litigation, including any appeal therefrom. Similarly, if the court determines you, your Affiliate and your\nRepresentatives have not breached this letter agreement, then the Company shall be liable and pay your reasonable legal fees incurred in connection\nwith such litigation, including any appeal therefrom.\nThis letter agreement shall be governed by and construed in accordance with the laws of the State of Washington, without giving effect to\nprinciples of conflict of laws thereof. You hereby agree and consent to personal jurisdiction and service and venue in any federal or state court within\nthe State of Washington having subject matter jurisdiction, for the purpose of any action, suit, or proceeding arising out of or relating to this letter\nagreement. The invalidity or unenforceability of any provision of this letter agreement shall not affect the validity or enforceability of any other\nprovisions of this letter agreement, which shall remain in full force and effect. The provisions set forth in this letter agreement may be modified or\nwaived only by a separate writing signed by the Company and you, as applicable, expressly so modifying or waiving such agreements.\nThe parties agree that no contract or agreement relating to the Transaction shall be deemed to exist as of the date of this letter agreement, and\nneither you nor the Company shall have any legal obligation of any kind whatsoever with respect to the Transaction (including by virtue of this letter\nagreement), unless and until a definitive agreement has been executed and delivered by you and the Company.\n5\nThis letter agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which\ntogether shall be deemed one and the same agreement.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company with respect to the subject matter hereof.\n*\n*\n*\n*\n*\nVery truly yours,\nTODD SHIPYARDS CORPORATION\nBy: /s/ Stephen G. Welch\nName: Stephen G. Welch\nTitle: President\nTHE PROVISIONS OF THE FOREGOING\nLETTER ARE AGREED TO AND ACKNOWLEDGED\nBY THE UNDERSIGNED:\nVIGOR INDUSTRIAL, LLC\nBy: /s/ Frank Foti\nName: Frank Foti\nTitle: President\n6
6c01508d5152e4af44844d7aa71d21e3.pdf	effective_date jurisdiction party	Exhibit 10.2\nNON-COMPETITION, NON-SOLICITATION, AND\nCONFIDENTIALITY AGREEMENT\nThis NON-COMPETITION, NON-SOLICITATION, AND CONFIDENTIALITY AGREEMENT (the “Agreement”) is\neffective as of the 18th day of October, 2011, by and between Electromed, Inc. (the “Corporation”) and Jeremy Brock (the\n“Employee”).\nRECITALS\nA. Effective October 18, 2011, the Employee will be promoted to the position of Chief Financial Officer of the Corporation;\nB. In this position, Employee will be employed by the Corporation in a capacity in which the Employee may create or\nhave access to proprietary confidential and/or trade secret information of the Corporation; and\nB. The Corporation has expended substantial time and resources to develop proprietary confidential and/or trade secret\ninformation and to develop valuable relationships and goodwill within its industry; and\nC. The Employee recognizes that the Corporation operates in a highly competitive environment and the importance to the\nCorporation of ensuring the Employee’s loyalty and protecting the Corporation’s actual and prospective customers,\nbusiness relations, employees, and confidential information; and\nD. The Employee has entered into this Agreement in consideration of the Corporation and Employee entering into the\nEmployment Agreement of even date which provides, among other things, for employment as Chief Financial Officer,\nincreased base salary and benefits, severance pay under those circumstances set forth in the Employment Agreement,\nand in consideration of being given access to Corporation’s proprietary confidential and/or trade secret information, the\nreceipt and sufficiency of which consideration is hereby acknowledged by the Employee.\nAGREEMENT\nIn consideration of the above recitals and the promises set forth in this Agreement, the parties agree as follows:\n1. Protection of Confidential Information.\n1.1 Definition of Confidential Information. As used in this Agreement, the term “Confidential\nInformation” shall mean any information which the Employee learns or develops during the Employee’s employment with\nthe Corporation that derives independent economic value from being not generally known or readily ascertainable by\nother persons who could obtain economic value from its disclosure or use, and includes, but is not limited to, trade\nsecrets, financial information, personnel information, and information relating to such matters as existing or contemplated\nproducts, services, profit margins, fee schedules, pricing, design, processes, formulae, business plans, sales techniques,\nmarketing techniques, training manuals\n-1-\nand materials, policies or practices related to the Corporation’s business, personnel or other matters, computer\ndatabases, computer programs, software and other technology, customer lists and requirements, vendor lists, or supply\ninformation. Confidential Information includes such information of the Corporation, its customers, vendors, and other third\nparties or entities with whom the Corporation does business. Any information disclosed to the Employee or to which the\nEmployee has access during the time of the Employee’s employment that the Employee reasonably considers to be\nConfidential Information, or which the Corporation treats as Confidential Information, will be presumed Confidential\nInformation.\n1.2 Restrictions on Use or Disclosure of Confidential Information. The Employee shall keep the\nConfidential Information in absolute confidence both during the Employee’s employment with the Corporation and after\nthe termination of the Employee’s employment, regardless of the reason for such termination. The Employee agrees that\nthe Employee will not, at any time, disclose to others, use for the benefit of any entity or person other than the\nCorporation, or otherwise take or copy any such Confidential Information, whether or not developed by the Employee,\nexcept as required in the Employee’s duties to the Corporation.\n1.3 Return of Confidential Information and the Corporation’s Property. When the Employee’s\nemployment terminates with the Corporation, regardless of the reason for such termination, the Employee will promptly\nturn over to the Corporation in good condition all Corporation property in the Employee’s possession or control, including\nbut not limited to all originals, copies of, or electronically stored documents or other materials containing Confidential\nInformation, regardless of who prepared them. In the case of electronically stored information retained by the Employee\noutside of the Corporation’s electronic systems, the Employee will promptly make a hard copy of such information in\npaper, audio recording, disc format, or other format as appropriate, turn that hard copy over to the Corporation, and then\ndestroy the Employee’s electronically stored information.\n2. Noncompetition/Non-Solicitation.\n2.1. Acknowledgement by the Employee. The Employee acknowledges that (a) the Employee’s\nservices to be performed for the Corporation are of a special and unique nature; (b) the Corporation operates in a highly\ncompetitive environment and would be substantially harmed if the Employee were to compete with the Corporation or\ndivulge its confidential information; (c) the Employee has received valuable and sufficient consideration for entering into\nthis Agreement, including but not limited to employment with the Corporation in the promoted position of Chief Financial\nOffer, and the receipt of Confidential Information; and (d) the provisions of this Section 2, including all of its subparts, are\nreasonable and necessary to protect the Corporation’s business.\n2.2. “Corporate Product” Defined. For purposes of this Agreement, “Corporate Product” means any\nproduct or service (including any component thereof and any research to develop information useful in connection with a\nproduct or service) that has been or is being designed, developed, manufactured, marketed, or sold by the Corporation or\nwith respect to which the Employee has acquired Confidential Information.\n-2-\nThe Employee understands and acknowledges that, at the present time, Corporate Products includes the\nSmartVest® Airway Clearance System and related products. The Employee understands and acknowledges that the\nforegoing description of Corporate Products may change, and the provisions of this Section 2 and all of its subparts shall\napply to the Corporate Products of the Corporation in effect upon the termination of the Employee’ s employment with the\nCorporation.\n2.3 “Competitive Product” Defined. For purposes hereof, “Competitive Product” means any product or\nservice (including any components thereof and any research to develop information useful in connection with the product\nor service) that is being designed, developed, manufactured, marketed, or sold by any person or entity other than the\nCorporation that is of the same general type, performs similar functions, or is used for the same purpose as a Corporate\nProduct or about which the Employee has acquired Confidential Information.\n2.4 Noncompete Obligations. The Employee agrees that, during the Employee’s employment with the\nCorporation and for a period of twelve (12) months following the Employee’s termination of employment with the\nCorporation, regardless of the reason for termination, the Employee will not, directly or indirectly, render services to any\nperson or entity that designs, develops, manufactures, markets, or sells a Competitive Product in any geographic area\nwhere the Corporation designs, develops, manufactures, markets, or sells a Corporate Product. It is expressly\nunderstood, however, that the Employee is free to work for a competitor of the Corporation provided that such\nemployment does not include any responsibilities for or in connection with a Competitive Product.\nThe Employee understands and acknowledges that, at the present time, the geographic market of the\nCorporation includes North America. The Employee understands and acknowledges that the foregoing description of the\nCorporation’s geographic market may change, and the provisions of this Section 2 and all of its subparts shall apply to\nthe geographic market of the Corporation in effect upon the termination of the Employee’s employment with the\nCorporation.\n2.5 No Solicitation of Customers. During the Employee’s employment with the Corporation and for a\nperiod of twelve (12) months after the Employee’s termination of employment with the Corporation, regardless of the\nreason for such termination, the Employee agrees that the Employee shall not, directly or indirectly, solicit business from,\nwork for, or otherwise interfere with or attempt to interfere with the Corporation’s relationship with any customer or\nprospective customer of the Corporation. For purposes of this Section, “customer” shall mean any purchaser of the\nCorporation’s products or services within the prior twelve (12) month period and “prospective costumer” shall mean any\nperson or entity who has consulted with the Corporation about its products or services within the prior six (six) month\nperiod.\n2.6 No Solicitation of Employees or Business Contacts. During the Employee’s employment with the\nCorporation and for a period of twelve (12) months after the Employee’s termination of employment with the Corporation,\nregardless of the reason for such termination, the Employee agrees that the Employee shall not, directly or indirectly,\ntake any action to encourage, solicit or recruit any then-current current employee, consultant, independent contractor,\nsubcontractor, supplier, vendor, or other business relation of the Corporation to terminate or curtail their relationship with\nthe Corporation.\n-3-\n2.7 Disclosure of Obligations. The Employee agrees that, during the Employee’s employment with the\nCorporation and for a period of twelve (12) months after the Employee’s termination of employment with the Corporation,\nregardless of the reason for such termination, the Employee shall, prior to accepting employment or any other business\nrelationship with any other person or entity, inform that person or entity of the Employee’s obligations under this Section\n2, including all of its subparts.\n3. Compliance and Remedies. The Employee recognizes that if the Employee violates this Agreement, including but not\nlimited to Paragraphs 1 and 2 of this Agreement, irreparable damage will result to the Corporation that could not\nadequately be remedied by monetary damages. As a result, the Employee hereby agrees that notwithstanding any other\ndispute resolution provisions of this Agreement, in the event of any breach by the Employee of this Agreement, including\nbut not limited to Paragraphs 1 and 2 of this Agreement, the Corporation shall be entitled, in addition to any other legal or\nequitable remedies available to it, to an injunction to restrain the Employee’s violation of any portion of this Agreement.\n4. Miscellaneous.\n4.1 Integration. This Agreement embodies the entire agreement and understanding among the parties\nrelative to subject matter hereof and supersedes all prior agreements, understandings, or past practices, whether written\nor oral, relating to such subject matter.\n4.2 Survival of Sections 1 and 2. Employee’s obligations set forth in Sections 1 and 2 of this\nAgreement, including all of these sections’ subparts, shall survive the termination of this Agreement and Employee’s\ntermination of employment with the Corporation, regardless of the reason for such terminations.\n4.3 Applicable Law; Venue. This Agreement and the rights of the parties shall be governed by and\nconstrued and enforced in accordance with the laws of the state of Minnesota, without regard to any state’s choice of law\nprinciples or rules. The venue for any action hereunder shall be in the state of Minnesota, whether or not such venue is or\nsubsequently becomes inconvenient, and the parties consent to the jurisdiction of the courts of the state of Minnesota,\ncounty of Hennepin, and the federal district courts of Minnesota.\n4.4 Counterparts. This Agreement may be executed in several counterparts and as so executed shall\nconstitute one agreement binding on the parties hereto.\n4.5 Modification by the Parties. This Agreement shall not be modified or amended except by a written\ninstrument signed by the parties. In addition, no waiver of any provision of this Agreement shall be binding unless set\nforth in a writing signed by the party effecting the waiver. Any waiver shall be limited to the circumstance or event\nspecifically referenced in the written waiver document and shall not be deemed a waiver of any other term of this\nAgreement or of the same circumstance or event upon any recurrence thereof.\n-4-\n4.6 Severability; Blue Pencil. The invalidity or partial invalidity of any portion of this Agreement shall not\ninvalidate the remainder thereof, and said remainder shall remain in full force and effect. Moreover, if one or more of the\nprovisions contained in this Agreement shall, for any reason, be held to be excessively broad as to scope, activity,\nsubject or otherwise, so as to be unenforceable at law, such provision or provisions shall be construed by the appropriate\njudicial body by limiting or reducing it or them, so as to be enforceable to the maximum extent compatible with then\napplicable law.\n4.7 Headings. The section headings contained in this Agreement are for reference purposes only and\nshall not in any way affect the meaning or interpretation of this Agreement.\n*****remainder of page intentionally left blank—signature page to follow*****\n-5-\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date herein first above written.\nELECTROMED, INC.\nDate: October 19, 2011\n/s/ Robert D. Hansen\nBy: Robert D. Hansen\nIts: Chairman/CEO\nEMPLOYEE:\nDate: October 19, 2011\n/s/ Jeremy Brock\nJeremy Brock\n-6-	Exhibit 10.2\nNON-COMPETITION, NON-SOLICITATION, AND\nCONFIDENTIALITY AGREEMENT\nThis NON-COMPETITION, NON-SOLICITATION, AND CONFIDENTIALITY AGREEMENT (the “Agreemen ”) is\neffective as of the 18th day ofOctober, 2011, by and between Electromed, Inc. (the “Corporation”) and J eremy Brock (the\n“Employee”).\nRECITALS\nA. Effective October 18, 2011, the Employee will be promoted to the position of Chief Financial Officer of the Corporation;\nB. In this position, Employee will be employed by the Corporation in a capacity in which the Employee may create or\nhave access to proprietary confidential and/ortrade secret information of the Corporation; and\nB. The Corporation has expended substantial time and resources to develop proprietary confidential and/or trade secret\ninformation and to develop valuable relationships and goodwill within its industry; and\nC. The Employee recognizes that the Corporation operates in a highly competitive environment and the importance to the\nCorporation of ensuring the Employee's loyalty and protecting the Corporation's actual and prospective customers,\nbusiness relations, employees, and confidential information; and\nD. The Employee has entered into this Agreement in consideration of the Corporation and Employee entering into the\nEmployment Agreement of even date which provides, among other things, for employment as Chief Financial Officer,\nincreased base salary and benefits, severance pay under those circumstances set forth in the EmploymentAgreement,\nand in consideration of being given access to Corporation's proprietary confidential and/or trade secret information, the\nreceipt and sufficiency of which consideration is hereby acknowledged by the Employee.\nAGREEMENT\nIn consideration of the above recitals and the promises set forth in this Agreement, the parties agree as follows:\n1. Protection of Confidential Information.\n1.1 Definition of Confidential Information. As used in this Agreement, the term “Confidential\nInformation” shall mean any information which the Employee learns or develops during the Employee's employment with\nthe Corporation that derives independent economic value from being not generally known or readily ascertainable by\nother persons who could obtain economic value from its disclosure or use, and includes, but is not limited to, trade\nsecrets, financial information, personnel information, and information relating to such matters as existing or contemplated\nproducts, services, profit margins, fee schedules, pricing, design, processes, formulae, business plans, sales techniques,\nmarketing techniques, training manuals\nand materials, policies or practices related to the Corporation's business, personnel or other matters, computer\ndatabases, computer programs, software and other technology, customer lists and requirements, vendor lists, or supply\ninformation. Confidential Information includes such information of the Corporation, its customers, vendors, and other third\nparties or entities with whom the Corporation does business. Any information disclosed to the Employee or to which the\nEmployee has access during the time of the Employee's employment that the Employee reasonably considers to be\nConfidential Information, or which the Corporation treats as Confidential Information, will be presumed Confidential\nInformation.\n1.2 Restrictions on Use or Disclosure of Confidential Information. The Employee shall keep the\nConfidential Information in absolute confidence both during the Employee's employment with the Corporation and after\nthe termination of the Employee's employment, regardless of the reason for such termination. The Employee agrees that\nthe Employee will not, at any time, disclose to others, use for the benefit of any entity or person other than the\nCorporation, or otherwise take or copy any such Confidential Information, whether or not developed by the Employee,\nexceptas required in the Employee's duties to the Corporation.\n1.3 Return of Confidential Information and the Corporation's Properly. When the Employee's\nemployment terminates with the Corporation, regardless of the reason for such termination, the Employee will promptly\nturn over to the Corporation in good condition all Corporation property in the Employee's possession or control, including\nbut not limited to all originals, copies of, or electronically stored documents or other materials containing Confidential\nInformation, regardless of who prepared them. In the case of electronically stored information retained by the Employee\noutside of the Corporation's electronic systems, the Employee will promptly make a hard copy of such information in\npaper, audio recording, disc format, or other format as appropriate, turn that hard copy over to the Corporation, and then\ndestroy the Employee's electronically stored information.\n2. Noncompetition/Non-Solicitation.\n2.1. Acknowledgement by the Employee. The Employee acknowledges that (a) the Employee's\nservices to be performed for the Corporation are of a special and unique nature; (b) the Corporation operates in a highly\ncompetitive environment and would be substantially harmed if the Employee were to compete with the Corporation or\ndivulge its confidential information; (c) the Employee has received valuable and sufficient consideration for entering into\nthis Agreement, including but not limited to employment with the Corporation in the promoted position of Chief Financial\nOffer, and the receipt of Confidential Information; and (d) the provisions of this Section 2, including all of its subparts, are\nreasonable and necessary to protectthe Corporation's business.\n2.2. “Corporate Product" Defined. For purposes of this Agreement, “Corporate Product” means any\nproduct or service (including any component thereof and any research to develop information useful in connection with a\nproductor service) that has been or is being designed, developed, manufactured, marketed, or sold by the Corporation or\nwith respect to which the Employee has acquired Confidential Information.\nThe Employee understands and acknowledges that, at the present time, Corporate Products includes the\nSmartVest® AinNay Clearance System and related products. The Employee understands and acknowledges that the\nforegoing description of Corporate Products may change, and the provisions ofthis Section 2 and all of its subparts shall\napply to the Corporate Products of the Corporation in effect upon the termination ofthe Employee' s employment with the\nCorporation.\n2.3 "Competitive Product" Defined. For purposes hereof, “Competitive Product” means any product or\nservice (including any components thereof and any research to develop information useful in connection with the product\nor service) that is being designed, developed, manufactured, marketed, or sold by any person or entity other than the\nCorporation that is ofthe same general type, performs similar functions, or is used for the same purpose as a Corporate\nProductor aboutwhich the Employee has acquired Confidential Information.\n2.4 Noncompete Obligations. The Employee agrees that, during the Employee's employment with the\nCorporation and for a period of twelve (12) months following the Employee's termination of employment with the\nCorporation, regardless of the reason for termination, the Employee will not, directly or indirectly, render services to any\nperson or entity that designs, develops, manufactures, markets, or sells a Competitive Product in any geographic area\nwhere the Corporation designs, develops, manufactures, markets, or sells a Corporate Product. It is expressly\nunderstood, however, that the Employee is free to work for a competitor of the Corporation provided that such\nemployment does not include any responsibilities for or in connection with a Competitive Product.\nThe Employee understands and acknowledges that, at the present time, the geographic market of the\nCorporation includes North America. The Employee understands and acknowledges thatthe foregoing description of the\nCorporation's geographic market may change, and the provisions of this Section 2 and all of its subparts shall apply to\nthe geographic market of the Corporation in effect upon the termination of the Employee's employment with the\nCorporation.\n2.5 No Solicitation of Customers. During the Employee's employment with the Corporation and for a\nperiod of twelve (12) months after the Employee's termination of employment with the Corporation, regardless of the\nreason for such termination, the Employee agrees that the Employee shall not, directly or indirectly, solicit business from,\nwork for, or otherwise interfere with or attempt to interfere with the Corporation's relationship with any customer or\nprospective customer of the Corporation. For purposes of this Section, “customer” shall mean any purchaser of the\nCorporation's products or services within the prior twelve (12) month period and “prospective costumer” shall mean any\nperson or entity who has consulted with the Corporation about its products or services within the prior six (six) month\npenod.\n2.6 No Solicitation of Employees or Business Contacts. During the Employee's employment with the\nCorporation and for a period of twelve (12) months after the Employee's termination of employment with the Corporation,\nregardless of the reason for such termination, the Employee agrees that the Employee shall not, directly or indirectly,\ntake any action to encourage, solicit or recruit any then-current current employee, consultant, independent contractor,\nsubcontractor, supplier, vendor, or other business relation of the Corporation to terminate or curtail their relationship with\nthe Corporation.\n2.7 Disclosure of Obligations. The Employee agrees that, during the Employee's employment with the\nCorporation and for a period of twelve (12) months after the Employee's termination of employment with the Corporation,\nregardless of the reason for such termination, the Employee shall, prior to accepting employment or any other business\nrelationship with any other person or entity, inform that person or entity of the Employee's obligations under this Section\n2, including all of its subparts.\n3. Compliance and Remedies. The Employee recognizes that if the Employee violates this Agreement, including but not\nlimited to Paragraphs 1 and 2 of this Agreement, irreparable damage will result to the Corporation that could not\nadequately be remedied by monetary damages. As a result, the Employee hereby agrees that notwithstanding any other\ndispute resolution provisions of this Agreement, in the event of any breach by the Employee of this Agreement, including\nbut not limited to Paragraphs 1 and 2 of this Agreement, the Corporation shall be entitled, in addition to any other legal or\nequitable remedies available to it, to an injunction to restrain the Employee's violation of any portion of this Agreement.\n4. Miscellaneous.\n4.1 Integration. This Agreement embodies the entire agreement and understanding among the parties\nrelative to subject matter hereof and supersedes all prior agreements, understandings, or past practices, whether written\nor oral, relating to such subject matter.\n4.2 Survival of Sections 1 and 2. Employee's obligations set forth in Sections 1 and 2 of this\nAgreement, including all of these sections' subparts, shall survive the termination of this Agreement and Employee's\ntermination of employment with the Corporation, regardless of the reason for such terminations.\n4.3 Applicable Law; Venue. This Agreement and the rights of the parties shall be governed by and\nconstrued and enforced in accordance with the laws of the state of Minnesota, without regard to any state's choice of law\nprinciples or rules. The venue for any action hereunder shall be in the state of Minnesota, whether or not such venue is or\nsubsequently becomes inconvenient, and the parties consent to the jurisdiction of the courts of the state of Minnesota,\ncounty of Hennepin, and the federal district courts of Minnesota.\n4.4 Counterparts. This Agreement may be executed in several counterparts and as so executed shall\nconstitute one agreement binding on the parties hereto.\n4.5 Modification by the Parties. This Agreement shall not be modified or amended except by a written\ninstrument signed by the parties. In addition, no waiver of any provision of this Agreement shall be binding unless set\nforth in a writing signed by the party effecting the waiver. Any waiver shall be limited to the circumstance or event\nspecifically referenced in the written waiver document and shall not be deemed a waiver of any other term of this\nAgreement or of the same circumstance or event upon any recurrence thereof.\n4.6 Severability'I Blue Pencil. The invalidity or partial invalidity of any portion of this Agreement shall not\ninvalidate the remainder thereof, and said remainder shall remain in full force and effect. Moreover, if one or more of the\nprovisions contained in this Agreement shall, for any reason, be held to be excessively broad as to scope, activity,\nsubject or otherwise, so as to be unenforceable at law, such provision or provisions shall be construed by the appropriate\njudicial body by limiting or reducing it or them, so as to be enforceable to the maximum extent compatible with then\napplicable law.\n4.7 Headings. The section headings contained in this Agreement are for reference purposes only and\nshall not in any way affect the meaning or interpretation of this Agreement.\nWremainder of page intentionally left blank—signature page to follow’l"""°'°l<\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date herein first above written.\nELECTROMED, INC.\nDate: October 19, 2011 /s/ Robert D. Hansen\nBy: Robert D. FIansen\nIts: Chairman/CEO\nEMPLOYEE:\nDate: October 19,2011 /s/J eremy Brock\nI eremy BFOCR	Exhibit 10.2\nNON-COMPETITION, NON-SOLICITATION, AND\nCONFIDENTIALITY AGREEMENT\nThis NON-COMPETITION, NON-SOLICITATION, AND CONFIDENTIALITY AGREEMENT (the "Agreement") is\neffective as of the 18th day of October, 2011, by and between Electromed, Inc. (the "Corporation") and J eremy Brock (the\n"Employee").\nRECITALS\nA. ffective October 18, 2011, the Employee will be promoted to the position of Chief Financial Officer of the Corporation;\nB. In this position, Employee will be employed by the Corporation in a capacity in which the Employee may create or\nhave access to proprietary confidential and/or trade secret information of the Corporation; and\nB. The Corporation has expended substantial time and resources to develop proprietary confidential and/or trade secret\ninformation and to develop valuable relationships and goodwill within its industry; and\nC. The Employee recognizes that the Corporation operates in a highly competitive environment and the importance to the\nCorporation of ensuring the Employee's loyalty and protecting the Corporation's actual and prospective customers,\nbusiness relations, employees, and confidential information; and\nD. The Employee has entered into this Agreement in consideration of the Corporation and Employee entering into the\nmployment Agreement of even date which provides, among other things, for employment as Chief Financial Officer,\nincreased base salary and benefits, severance pay under those circumstances set forth in the Employment Agreement,\nand in consideration of being given access to Corporation's proprietary confidential and/or trade secret information, the\nreceipt and sufficiency of which consideration is hereby acknowledged by the Employee.\nAGREEMENT\nIn consideration of the above recitals and the promises set forth in this Agreement, the parties agree as follows:\n1. Protection of Confidential Information.\n1.1 Definition of Confidential Information. As used in this Agreement, the term "Confidential\nInformation" shall mean any information which the Employee learns or develops during the Employee's employment with\nthe Corporation that derives independent economic value from being not generally known or readily ascertainable by\nother\npersons who could obtain economic value from its disclosure or use, and includes, but is not limited to, trade\nsecrets, financial information, personnel information, and information relating to such matters as existing or contemplated\nproducts, services, profit margins, fee schedules, pricing, design, processes, formulae, business plans, sales techniques,\nmarketing techniques, training manuals\n-1-\nand materials, policies or practices related to the Corporation's business, personnel or other matters, computer\ndatabases, computer programs, software and other technology, customer lists and requirements, vendor lists, or supply\ninformation. Confidential Information includes such information of the Corporation, its customers, vendors, and other third\nparties or entities with whom the Corporation does business. Any information disclosed to the Employee or to\nwhich\nthe\nEmployee has access during the time of the Employee's employment that the Employee reasonably considers to be\nConfidential Information, or which the Corporation treats as Confidential Information, will be presumed Confidential\nInformation.\n1.2 Restrictions on Use or Disclosure of Confidential Information. The Employee shall keep the\nConfidential Information in absolute confidence both during the Employee's employment with the Corporation and after\nthe termination of the Employee's employment, regardless of the reason for such termination. The Employee agrees that\nthe Employee will not, at any time, disclose to others, use for the benefit of any entity or person other than the\nCorporation, or otherwise take or copy any such Confidential Information, whether or not developed by the Employee,\nexcept as required in the Employee's duties to the Corporation.\n1.3 Return of Confidential Information and the Corporation's Property. When the Employee's\nemployment terminates with the Corporation, regardless of the reason for such termination, the Employee will promptly\nturn over to the Corporation in good condition all Corporation property in the Employee's possession or control, including\nbut not limited to all originals, copies of, or electronically stored documents or other materials containing Confidential\nInformation, regardless of who prepared them. In the case of electronically stored information retained by the Employee\noutside of the Corporation's electronic systems, the Employee will promptly make a hard copy of such information in\npaper, audio recording, disc format, or other format as appropriate, turn that hard copy over to the Corporation, and then\ndestroy the Employee's electronically stored information.\n2. Noncompetition/Non-Solicitation.\n2.1. Acknowledgement by the Employee. The Employee acknowledges that (a) the Employee's\nservices to be performed for the Corporation are of a special and unique nature; (b) the Corporation operates in a highly\ncompetitive environment and would be substantially harmed if the Employee were to compete with the Corporation or\ndivulge its confidential information; (c) the Employee has received valuable and sufficient consideration for entering into\nthis Agreement, including but not limited to employment with the Corporation in the promoted position of Chief Financial\nOffer, and the receipt of Confidentia Information; and (d) the provisions of this Section 2, including all of its subparts, are\nreasonable and necessary to protect the Corporation's business.\n2.2. "Corporate Product" Defined. For purposes of this Agreement, "Corporate Product" means any\nproduct or service (including any component thereof and any research to develop information useful in connection with a\nproduct or service) that has been or is being designed, developed, manufactured, marketed, or sold by the Corporation or\nwith respect to which the Employee has acquired Confidential Information.\n-2-\nThe Employee understands and acknowledges that, at the present time, Corporate Products includes the\nSmartVeste Airway Clearance System and related products. The Employee understands and acknowledges that the\nforegoing description of Corporate Products may change, and the provisions of this Section 2 and all of its subparts shall\napply to the Corporate Products of the Corporation in effect upon the termination of the Employee's employment with the\nCorporation.\n2.3 "Competitive Product" Defined. For purposes hereof, "Competitive Product" means any product or\nservice (including any components thereof and any research to develop information useful in connection with the product\nor service) that is being designed, developed, manufactured, marketed, or sold by any person or entity other than the\nCorporation that is of the same general type, performs similar functions, or is used for the same purpose as a Corporate\nProduct or about which the Employee has acquired Confidential Information.\n2.4 Noncompete Obligations. The Employee agrees that, during the Employee's employment with the\nCorporation and for a period of twelve (12) months following the Employee's termination of employment with the\nCorporation, regardless of the reason for termination, the Employee will not, directly or indirectly, render services to any\nperson or entity that designs, develops, manufactures, markets, or sells a Competitive Product in any geographic area\nwhere the Corporation designs, develops, manufactures, markets, or sells a Corporate Product. It is expressly\nunderstood, however, that the Employee is free to work for a competitor of the Corporation provided that such\nemployment does not include any responsibilities for or in connection with a Competitive Product.\nThe Employee understands and acknowledges that, at the present time, the geographic market of the\nCorporation includes North America. The Employee understands and acknowledges that the foregoing description of the\nCorporation's geographic market may change, and the provisions of this Section 2 and all of its subparts shall apply to\nthe geographic market of the Corporation in effect upon the termination of the Employee's employment with the\nCorporation.\n2.5 No Solicitation of Customers. During the Employee's employment with the Corporation and for\na\nperiod of twelve (12) months after the Employee's termination of employment with the Corporation, regardless of the\nreason for such termination, the Employee agrees that the Employee shall not, directly or indirectly, solicit business from,\nwork for, or otherwise interfere with or attempt to interfere with the Corporation's relationship with any customer or\nprospective customer of the Corporation. For purposes of this Section, "customer" shall mean any purchaser of the\nCorporation's products or services within the prior twelve (12) month period and "prospective costumer" shall mean any\nperson or entity who has consulted with the Corporation about its products or services within the prior six (six) month\nperiod.\n2.6 No Solicitation of Employees or Business Contacts. During the Employee's employment with the\nCorporation and for a period of twelve (12) months after the Employee's termination of employment with the Corporation,\nregardless of the reason for such termination, the Employee agrees that the Employee shall not, directly or indirectly,\ntake any action to encourage, solicit or recruit any then-current current employee, consultant, independent contractor,\nsubcontractor, supplier, vendor, or other business relation of the Corporation to terminate or curtail their relationship with\nthe Corporation.\n-3-\n2.7 Disclosure of Obligations. The Employee agrees that, during the Employee's employment with the\nCorporation and for a period of twelve (12) months after the Employee's termination of employment with the Corporation,\nregardless of the reason for such termination, the Employee shall, prior to accepting employment or any other business\nrelationship with any other person or entity, inform that person or entity of the Employee's obligations under this Section\n2, including all of its subparts.\n3. Compliance and Remedies. The Employee recognizes that if the Employee violates this Agreement, including but not\nlimited to Paragraphs 1 and 2 of this Agreement, irreparable damage will result to the Corporation that could not\nadequately be remedied by monetary damages. As a result, the Employee hereby agrees that notwithstanding any other\ndispute resolution provisions of this Agreement, in the event of any breach by the Employee of this Agreement, including\nbut not limited to Paragraphs 1 and 2 of this Agreement, the Corporation shall be entitled, in addition to any other legal or\nequitable remedies available to it, to an injunction to restrain the Employee's violation of any portion of this Agreement.\n4. Miscellaneous.\n4.1 Integration. This Agreement embodies the entire agreement and understanding among the parties\nrelative to subject matter hereof and supersedes all prior agreements, understandings, or past practices, whether written\nor oral, relating to such subject matter.\n4.2 Survival of Sections 1 and 2. Employee's obligations set forth in Sections 1 and 2 of this\nAgreement, including all of these sections' subparts, shall survive the termination of this Agreement and Employee's\ntermination of employment with the Corporation, regardless of the reason for such terminations.\n4.3 Applicable Law; Venue. This Agreement and the rights of the parties shall be governed by and\nconstrued and enforced in accordance with the laws of the state of Minnesota, without regard to any state's choice of law\nprinciples or rules. The venue for any action hereunder shall be in the state of Minnesota, whether or not such venue is or\nsubsequently becomes inconvenient, and the parties consent to the jurisdiction of the courts of the state of Minnesota,\ncounty of Hennepin, and the federal district courts of Minnesota.\n4.4 Counterparts. This Agreement may be executed in several counterparts and as So executed shall\nconstitute one agreement binding on the parties hereto.\n4.5 Modification by the Parties. This Agreement shall not be modified or amended except by a written\ninstrument signed by the parties. In addition, no waiver of any provision of this Agreement shall be binding unless set\nforth in a writing signed by the party effecting the waiver. Any waiver shall be limited to the circumstance or event\nspecifically referenced in the written waiver document and shall not be deemed a waiver of any other term of this\nAgreement or of the same circumstance or event upon any recurrence thereof.\n-4-\n4.6\nSeverability; Blue Pencil. The invalidity or partial invalidity of any portion of this Agreement shall not\ninvalidate the remainder thereof, and said remainder shall remain in full force and effect. Moreover, if one or more of the\nprovisions contained in this Agreement shall, for any reason, be held to be excessively broad as to scope, activity,\nsubject or otherwise, so as to be unenforceable at law, such provision or provisions shall be construed by the appropriate\njudicia body by limiting or reducing it or them, so as to be enforceable to the maximum extent compatible with then\napplicable law.\n4.7 Headings. The section headings contained in this Agreement are for reference purposes only and\nshall not in any way affect the meaning or interpretation of this Agreement.\n*remainder of page intentionally left blank-signature page to follow'\n-5-\nIN\nWITNESS WHEREOF, the parties have executed this Agreement as of the date herein first above written.\nELECTROMED, INC.\nDate: October 19, 2011\n/s/ Robert D. Hansen\nBy: RObert D. Hansen\nIts: Chairman/CEO\nEMPLOYEE:\nDate: October 19, 2011\n/s/ J eremy Brock\neremy Brock\n-6-	Exhibit 10.2\nNON-COMPETITION, NON-SOLICITATION, AND\nCONFIDENTIALITY AGREEMENT\nThis NON-COMPETITION, NON-SOLICITATION, AND CONFIDENTIALITY AGREEMENT (the “Agreement”) is\neffective as of the 18th day of October, 2011, by and between Electromed, Inc. (the “Corporation”) and Jeremy Brock (the\n“Employee”).\nRECITALS\nA. Effective October 18, 2011, the Employee will be promoted to the position of Chief Financial Officer of the Corporation;\nB. In this position, Employee will be employed by the Corporation in a capacity in which the Employee may create or\nhave access to proprietary confidential and/or trade secret information of the Corporation; and\nB. The Corporation has expended substantial time and resources to develop proprietary confidential and/or trade secret\ninformation and to develop valuable relationships and goodwill within its industry; and\nC. The Employee recognizes that the Corporation operates in a highly competitive environment and the importance to the\nCorporation of ensuring the Employee’s loyalty and protecting the Corporation’s actual and prospective customers,\nbusiness relations, employees, and confidential information; and\nD. The Employee has entered into this Agreement in consideration of the Corporation and Employee entering into the\nEmployment Agreement of even date which provides, among other things, for employment as Chief Financial Officer,\nincreased base salary and benefits, severance pay under those circumstances set forth in the Employment Agreement,\nand in consideration of being given access to Corporation’s proprietary confidential and/or trade secret information, the\nreceipt and sufficiency of which consideration is hereby acknowledged by the Employee.\nAGREEMENT\nIn consideration of the above recitals and the promises set forth in this Agreement, the parties agree as follows:\n1. Protection of Confidential Information.\n1.1 Definition of Confidential Information. As used in this Agreement, the term “Confidential\nInformation” shall mean any information which the Employee learns or develops during the Employee’s employment with\nthe Corporation that derives independent economic value from being not generally known or readily ascertainable by\nother persons who could obtain economic value from its disclosure or use, and includes, but is not limited to, trade\nsecrets, financial information, personnel information, and information relating to such matters as existing or contemplated\nproducts, services, profit margins, fee schedules, pricing, design, processes, formulae, business plans, sales techniques,\nmarketing techniques, training manuals\n-1-\nand materials, policies or practices related to the Corporation’s business, personnel or other matters, computer\ndatabases, computer programs, software and other technology, customer lists and requirements, vendor lists, or supply\ninformation. Confidential Information includes such information of the Corporation, its customers, vendors, and other third\nparties or entities with whom the Corporation does business. Any information disclosed to the Employee or to which the\nEmployee has access during the time of the Employee’s employment that the Employee reasonably considers to be\nConfidential Information, or which the Corporation treats as Confidential Information, will be presumed Confidential\nInformation.\n1.2 Restrictions on Use or Disclosure of Confidential Information. The Employee shall keep the\nConfidential Information in absolute confidence both during the Employee’s employment with the Corporation and after\nthe termination of the Employee’s employment, regardless of the reason for such termination. The Employee agrees that\nthe Employee will not, at any time, disclose to others, use for the benefit of any entity or person other than the\nCorporation, or otherwise take or copy any such Confidential Information, whether or not developed by the Employee,\nexcept as required in the Employee’s duties to the Corporation.\n1.3 Return of Confidential Information and the Corporation’s Property. When the Employee’s\nemployment terminates with the Corporation, regardless of the reason for such termination, the Employee will promptly\nturn over to the Corporation in good condition all Corporation property in the Employee’s possession or control, including\nbut not limited to all originals, copies of, or electronically stored documents or other materials containing Confidential\nInformation, regardless of who prepared them. In the case of electronically stored information retained by the Employee\noutside of the Corporation’s electronic systems, the Employee will promptly make a hard copy of such information in\npaper, audio recording, disc format, or other format as appropriate, turn that hard copy over to the Corporation, and then\ndestroy the Employee’s electronically stored information.\n2. Noncompetition/Non-Solicitation.\n2.1. Acknowledgement by the Employee. The Employee acknowledges that (a) the Employee’s\nservices to be performed for the Corporation are of a special and unique nature; (b) the Corporation operates in a highly\ncompetitive environment and would be substantially harmed if the Employee were to compete with the Corporation or\ndivulge its confidential information; (c) the Employee has received valuable and sufficient consideration for entering into\nthis Agreement, including but not limited to employment with the Corporation in the promoted position of Chief Financial\nOffer, and the receipt of Confidential Information; and (d) the provisions of this Section 2, including all of its subparts, are\nreasonable and necessary to protect the Corporation’s business.\n2.2. “Corporate Product” Defined. For purposes of this Agreement, “Corporate Product” means any\nproduct or service (including any component thereof and any research to develop information useful in connection with a\nproduct or service) that has been or is being designed, developed, manufactured, marketed, or sold by the Corporation or\nwith respect to which the Employee has acquired Confidential Information.\n-2-\nThe Employee understands and acknowledges that, at the present time, Corporate Products includes the\nSmartVest® Airway Clearance System and related products. The Employee understands and acknowledges that the\nforegoing description of Corporate Products may change, and the provisions of this Section 2 and all of its subparts shall\napply to the Corporate Products of the Corporation in effect upon the termination of the Employee’ s employment with the\nCorporation.\n2.3 “Competitive Product” Defined. For purposes hereof, “Competitive Product” means any product or\nservice (including any components thereof and any research to develop information useful in connection with the product\nor service) that is being designed, developed, manufactured, marketed, or sold by any person or entity other than the\nCorporation that is of the same general type, performs similar functions, or is used for the same purpose as a Corporate\nProduct or about which the Employee has acquired Confidential Information.\n2.4 Noncompete Obligations. The Employee agrees that, during the Employee’s employment with the\nCorporation and for a period of twelve (12) months following the Employee’s termination of employment with the\nCorporation, regardless of the reason for termination, the Employee will not, directly or indirectly, render services to any\nperson or entity that designs, develops, manufactures, markets, or sells a Competitive Product in any geographic area\nwhere the Corporation designs, develops, manufactures, markets, or sells a Corporate Product. It is expressly\nunderstood, however, that the Employee is free to work for a competitor of the Corporation provided that such\nemployment does not include any responsibilities for or in connection with a Competitive Product.\nThe Employee understands and acknowledges that, at the present time, the geographic market of the\nCorporation includes North America. The Employee understands and acknowledges that the foregoing description of the\nCorporation’s geographic market may change, and the provisions of this Section 2 and all of its subparts shall apply to\nthe geographic market of the Corporation in effect upon the termination of the Employee’s employment with the\nCorporation.\n2.5 No Solicitation of Customers. During the Employee’s employment with the Corporation and for a\nperiod of twelve (12) months after the Employee’s termination of employment with the Corporation, regardless of the\nreason for such termination, the Employee agrees that the Employee shall not, directly or indirectly, solicit business from,\nwork for, or otherwise interfere with or attempt to interfere with the Corporation’s relationship with any customer or\nprospective customer of the Corporation. For purposes of this Section, “customer” shall mean any purchaser of the\nCorporation’s products or services within the prior twelve (12) month period and “prospective costumer” shall mean any\nperson or entity who has consulted with the Corporation about its products or services within the prior six (six) month\nperiod.\n2.6 No Solicitation of Employees or Business Contacts. During the Employee’s employment with the\nCorporation and for a period of twelve (12) months after the Employee’s termination of employment with the Corporation,\nregardless of the reason for such termination, the Employee agrees that the Employee shall not, directly or indirectly,\ntake any action to encourage, solicit or recruit any then-current current employee, consultant, independent contractor,\nsubcontractor, supplier, vendor, or other business relation of the Corporation to terminate or curtail their relationship with\nthe Corporation.\n-3-\n2.7 Disclosure of Obligations. The Employee agrees that, during the Employee’s employment with the\nCorporation and for a period of twelve (12) months after the Employee’s termination of employment with the Corporation,\nregardless of the reason for such termination, the Employee shall, prior to accepting employment or any other business\nrelationship with any other person or entity, inform that person or entity of the Employee’s obligations under this Section\n2, including all of its subparts.\n3. Compliance and Remedies. The Employee recognizes that if the Employee violates this Agreement, including but not\nlimited to Paragraphs 1 and 2 of this Agreement, irreparable damage will result to the Corporation that could not\nadequately be remedied by monetary damages. As a result, the Employee hereby agrees that notwithstanding any other\ndispute resolution provisions of this Agreement, in the event of any breach by the Employee of this Agreement, including\nbut not limited to Paragraphs 1 and 2 of this Agreement, the Corporation shall be entitled, in addition to any other legal or\nequitable remedies available to it, to an injunction to restrain the Employee’s violation of any portion of this Agreement.\n4. Miscellaneous.\n4.1 Integration. This Agreement embodies the entire agreement and understanding among the parties\nrelative to subject matter hereof and supersedes all prior agreements, understandings, or past practices, whether written\nor oral, relating to such subject matter.\n4.2 Survival of Sections 1 and 2. Employee’s obligations set forth in Sections 1 and 2 of this\nAgreement, including all of these sections’ subparts, shall survive the termination of this Agreement and Employee’s\ntermination of employment with the Corporation, regardless of the reason for such terminations.\n4.3 Applicable Law; Venue. This Agreement and the rights of the parties shall be governed by and\nconstrued and enforced in accordance with the laws of the state of Minnesota, without regard to any state’s choice of law\nprinciples or rules. The venue for any action hereunder shall be in the state of Minnesota, whether or not such venue is or\nsubsequently becomes inconvenient, and the parties consent to the jurisdiction of the courts of the state of Minnesota,\ncounty of Hennepin, and the federal district courts of Minnesota.\n4.4 Counterparts. This Agreement may be executed in several counterparts and as so executed shall\nconstitute one agreement binding on the parties hereto.\n4.5 Modification by the Parties. This Agreement shall not be modified or amended except by a written\ninstrument signed by the parties. In addition, no waiver of any provision of this Agreement shall be binding unless set\nforth in a writing signed by the party effecting the waiver. Any waiver shall be limited to the circumstance or event\nspecifically referenced in the written waiver document and shall not be deemed a waiver of any other term of this\nAgreement or of the same circumstance or event upon any recurrence thereof.\n-4-\n4.6 Severability; Blue Pencil. The invalidity or partial invalidity of any portion of this Agreement shall not\ninvalidate the remainder thereof, and said remainder shall remain in full force and effect. Moreover, if one or more of the\nprovisions contained in this Agreement shall, for any reason, be held to be excessively broad as to scope, activity,\nsubject or otherwise, so as to be unenforceable at law, such provision or provisions shall be construed by the appropriate\njudicial body by limiting or reducing it or them, so as to be enforceable to the maximum extent compatible with then\napplicable law.\n4.7 Headings. The section headings contained in this Agreement are for reference purposes only and\nshall not in any way affect the meaning or interpretation of this Agreement.\n*****remainder of page intentionally left blank—signature page to follow*****\n-5-\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date herein first above written.\nELECTROMED, INC.\nDate: October 19, 2011\n/s/ Robert D. Hansen\nBy: Robert D. Hansen\nIts: Chairman/CEO\nEMPLOYEE:\nDate: October 19, 2011\n/s/ Jeremy Brock\nJeremy Brock\n-6-
6db32ac59ddbeb01dc8e5d05fb922817.pdf	effective_date jurisdiction party	EXHIBIT A\nNONCOMPETITION/CONFIDENTIALITY, SEPARATION AGREEMENT AND GENERAL RELEASE\nTHIS NONCOMPETITION/CONFIDENTIALITY, SEPARATION AGREEMENT AND GENERAL RELEASE (this\n“Agreement”), is entered into by and between QUEST SOLUTION, INC., a Delaware corporation (the “Corporation”), and\nKURT THOMET, an individual (“Employee”) (collectively the “Parties”).\nWHEREAS, the Corporation operates a transaction processing automation Corporation that focuses on\nenterprise mobility for the supply chain companies in the retail, distribution, logistics, healthcare and manufacturing\nindustries (the “Business”);\nWHEREAS, Employee is a shareholder and employee of the Corporation and has acquired certain confidential\ninformation with respect to the Business;\nWHEREAS, the Corporation and Employee desire to set forth their mutual agreement with respect to all matters\nrelating to the resignation of Employee’s employment with Corporation and the parties’ mutual release of claims; and\nWHEREAS, in order to protect the Business and the goodwill associated with the Business, the Parties agree\nthat Employee should refrain from engaging in certain businesses that compete or may compete with the Business and\nfrom certain other conduct, all on the terms and conditions contained herein;\nNOW THEREFORE, in consideration of the covenants, warranties and mutual agreements herein set forth, the\npayments set forth in Section 2 hereof, one dollar cash in hand paid, and for other good and valuable consideration, the\nreceipt and adequacy of which is hereby acknowledged, the parties do hereby agree as follows:\nSection 1. Resignation of Employment\nEmployee hereby resigns his employment with Corporation, effective as of the date of his execution of this\nAgreement (“Resignation Date”). Employee acknowledges that his employment separation is properly categorized as a\nvoluntary resignation. Employee represents and warrants that he will never seek re-employment or any contractual\nservice relationship with the Corporation or any of its divisions or affiliates in the future. Employee agrees that this\nprovision is fair, just, and appropriate under all the relevant facts and circumstances.\nSection 2. Consideration\nIn consideration for Employee’s obligations under this Agreement, Employee will be entitled to receive payment\nin the gross amount of Five Thousand Dollars ($5,000), less required withholdings and deductions, from the Corporation.\nEmployee has been offered twenty-one (21) days to consider the Agreement. If Employee accepts the Agreement,\npayment will be made on the Effective Date (as defined in Section 7). The Corporation will issue Employee a Form W-2\nfor the payment made under this Section 2.\n6\nIn the event Employee breaches this Agreement, the Corporation shall be entitled to recover any and all amounts\npreviously paid to the Employee under Section 2 of this Agreement, in addition to any other remedies to which the\nCorporation may be entitled at law or in equity.\nSection 3. Release of Claims by Employee\nEmployee hereby waives, releases, and discharges the Corporation, its past and present parents, subsidiaries,\ndivisions, and affiliated companies, their respective past and present stockholders, directors, officers, agents, and\ninsurers (collectively the “Released Parties”), from any and all claims, demands, damages, and causes of action from any\nand all claims, causes of action, liabilities, costs (including attorney’s fees), obligations, and judgments of any kind,\nwhether direct or contingent in Employee’s favor, whether known or unknown, past, present, or future, whether in law or\nin equity, or otherwise and whether in contract, warranty, tort, strict liability, or otherwise, which he now has, may have\nhad at any time in the past, or may have at any time in the future arising or resulting from his employment with\nCorporation or the separation therefrom, except as set forth herein (collectively the “Released Claims”). Employee also\nrepresents and warrants that he has not sold, assigned, or transferred any Released Claim. Employee expressly\nrepresents that he has full legal authority to enter into this Agreement for himself and his heirs.\nThe Released Claims include, but are not limited to, any rights or claims in law or equity, federal, state or local,\nstatutory or common law, for breach of employment contract, wrongful termination, or past wages under applicable state\nlaw; claims relating to discrimination, harassment, retaliation, accommodation, or whistleblowing (for example, claims\nunder Title VII of the Civil Rights Act of 1964 (“Title VII”), the Civil Rights Acts of 1866 and 1871 (42 U.S .C. § 1981), the\nAmericans with Disabilities Act Amendments Act of 2008 (“ADAAA”) and the Americans with Disabilities Act of 1990\n(“ADA”), the Age Discrimination in Employment Act (“ADEA”) and the Older Workers Benefit Protection Act (“OWBPA”);\nthe Family and Medical Leave Act of 1993, the Fair Labor Standards Act of 1938, the National Labor Relations Act, the\nWorker Adjustment Retraining Notification Act of 1988, the Employee Retirement Income Security Act of 1974 (excepting\nclaims for vested benefits, if any, to which Employee is legally entitled thereunder), or any other federal, state, county or\nlocal law, statute, ordinance, decision, order, policy or regulation prohibiting employment discrimination, harassment or\nretaliation, or otherwise creating rights or claims for employees, including, but not limited to, any and all claims alleging\nbreach of public policy, the implied obligation of good faith and fair dealing, or any implied, oral or written contract,\nhandbook, manual, policy statement or employment practice, or alleging misrepresentation, defamation, interference with\ncontractual relations, intentional or negligent infliction of emotional distress, invasion of privacy, false imprisonment,\nnegligence or wrongful discharge. Provided, however, that this release does not extend to: (1) rights or claims the release\nof which is expressly prohibited by law; (2) rights that may arise after the effective date of this Agreement; and (3)\nEmployee’s right to enforce or rescind this Agreement.\nEmployee agrees that Employee will not seek and waives any right to accept any benefit or consideration from\nany source whatsoever with respect to any claims that Employee has asserted or could have asserted against the\nReleased Parties, whether filed by Employee or on Employee’s behalf. Employee further agrees that if Employee, or any\nperson or entity representing Employee, or any federal, state or local agency, files or asserts such claims, this Agreement\nwill act as a total and complete bar to recovery of any judgment, award, damages or remedy of any kind, except where\nexpressly prohibited by law.\n7\nEmployee understands that he is releasing the Released Parties from claims that he may not know about as of\nthe date of the execution of this Agreement, and that it is his knowing and voluntary intent even though Employee\nrecognizes that someday he might learn that some or all of the facts he currently believes to be true are untrue and even\nthough he might then regret having signed this Agreement. Nevertheless, Employee understands that he is expressly\nassuming that risk and agrees that this Agreement shall remain effective in all respects in any such case. Employee\nexpressly and completely waives all rights he might have under any law that is intended to protect him from waiving\nunknown claims, and Employee understands the significance of doing so.\nEmployee represents that neither Employee nor, to his knowledge, any person or entity acting on Employee’s\nbehalf or with Employee’s authority has asserted with any federal, state or local judicial or administrative body any claim\nof any kind based on or arising out of any aspect of Employee’s employment with the Corporation or the ending of that\nemployment. Employee further represents that he is not participating, either directly or indirectly, in any investigations,\nproceedings, actions, or claims against the Corporation.\nEmployee hereby specifically covenants and agrees that he shall not initiate, or cause to be initiated, any action\nor cause of action against the Released Parties in the future asserting any claims released in this Agreement, except that\nthe foregoing shall not preclude Employee from filing a charge of discrimination as allowed by law.\nTo his actual knowledge, as of the Effective Date without any additional investigation, Employee has disclosed to\nthe Corporation any matters for which he was responsible as an employee of the Corporation that are reasonably likely to\ngive rise to, evidence, or support any claim of unlawful, unethical, or improper conduct, regulatory violation, unlawful\ndiscrimination, retaliation, or other cause of action against the Corporation. Employee will not be considered in breach of\nthe foregoing with respect to any matter within the actual knowledge without any additional investigation of Jason F.\nGriffith, Scot Ross, and Thomas Miller, or any of them, on or before the Effective Date.\nEmployee acknowledges and agrees that with the exception of his final wages, which will be paid in accordance\nwith the Corporation’s usual payroll practices and in accordance with state law, no other payments, commissions,\nbonuses, or benefits will be made by Corporation to Employee based on Employee’s employment by Corporation; and\nEmployee acknowledges that he has no entitlement to, or any right to make any claim for, any additional payments,\ncommissions, bonuses, or benefits by Corporation of any kind whatsoever, that are due based on Employee’s\nemployment by Corporation. Employee’s eligibility for coverage as an active employee under all employee benefit plans\nmaintained by Corporation terminate on the Resignation Date. Employee may purchase, if eligible, continuation of health\nbenefits coverage to the extent and for the period provided by law.\n8\nSection 4. Release of Claims by Corporation\nFor, and in consideration of the promises contained herein, the sufficiency, adequacy, and receipt of all of which\nconsideration is hereby expressly acknowledged, Corporation releases and discharges Employee from any and all\nobligations, claims, damages, demands, liabilities, equities, actions, causes of actions and legal theories of whatever\nkind, in law or in equity, in contract or tort or public policy, both known and unknown, suspected and unsuspected,\ndisclosed and undisclosed, actual and consequential, specific and general, however denominated, from the beginning of\ntime up to and including the time of the signing of this Agreement; whether for income from any source, declaratory or\ninjunctive relief, compensatory or punitive damages, wages, severance benefits, money, remuneration, emotional\ndistress, injunctive relief, costs, expenses, attorneys’ fees, or thing of any value whatsoever, by Corporation against\nEmployee, including but not limited to any claims arising out of or resulting from Employee’s employment with\nCorporation, and any other matter between Employee and Corporation. Provided, however, that Corporation is not\nreleasing any claim that relates to (1) its right to enforce this Agreement; (2) any rights or claims that arise after the\nexecution of this Agreement; or (3) any rights that it cannot lawfully release.\nSection 5. Noncompetition; Confidentiality; Non-Disparagement\nEmployee agrees that for a period of six (6) months, beginning with the execution of this Agreement (the\n“Covenant Period”), Employee will not, without the prior written consent of the Corporation in each instance: (1)\nparticipate or engage, directly or indirectly, in the ownership, management, operation, or control of, or work for as an\nemployee, independent contractor or consultant, or be connected as a partner, member, owner, investor, lender or\notherwise, with, or have any financial interest in, or aid or assist anyone else in the conduct of any of the businesses or\ncustomers described on Schedule I, attached hereto; or (2) directly or indirectly, employ, offer to employ, recruit, solicit,\nentice away, or in any other manner persuade or attempt to persuade any employee or independent contractor of the\nCorporation or any person who, at any time during the twelve (12) months preceding the date in question, was an\nemployee, independent contractor, patient or customer of the Corporation or the Business, to discontinue the relationship\nwith the Corporation.\nEmployee agrees that, for a period of two (2) years after execution of this Agreement, he will hold and keep\nconfidential all Confidential Information (as defined below) to which Employee, at any time shall have become informed,\nand that he will not, directly or indirectly, disclose any Confidential Information to any person, firm, corporation or entity,\nor use the same, or permit the same to be disclosed or used. “Confidential Information” as used herein means proprietary\ninformation directly relating to the Corporation or developed exclusively by the Corporation or developed for the use of\nthe Corporation or the Business and shall include, without limitation, the following types of information regarding the\nCorporation or the Business: corporate information, including business information, plans, strategies, tactics, or policies;\nmarketing information, including strategies, tactics, methods, customer and patient lists, prospects, and market research\ndata; financial data or forecasts; policies or procedures; know-how and ideas; operational information, including trade\nsecrets; technical information, including designs, drawings and specifications; and any proprietary compounding\ninformation. Confidential Information is limited to that information which is not generally known to the public (other than as\na result of unauthorized disclosure by Employee) or within the industry of which the businesses described in Schedule I\nare a part.\n9\nEmployee expressly represents and warrants that he shall not disclose the existence or terms of this Agreement\nto any third person without the prior express written consent of the Corporation. Notwithstanding the foregoing, Employee\nmay disclose the existence and/or terms of this Agreement: (1) to his attorneys or accountants, to the extent that such\ndisclosure is necessary in the preparation of his tax returns; (2) pursuant to a securities regulatory request or to comply\nwith a securities regulatory requirement or other legal obligation; (3) pursuant to a duly-issued court or arbitration order;\nand (4) if the existence and/or terms of this Agreement have previously become disclosed by Corporation in a public\nfiling. In the case of a disclosure required pursuant to a duly-issued court or arbitration order, Employee or his attorneys\nshall at the earliest opportunity notify Corporation of any request or order compelling disclosure of any of the terms of this\nAgreement so as to allow Corporation an opportunity to take appropriate action to protect their interests. In the case of a\ndisclosure required pursuant to a securities regulatory request, Employee or his attorneys shall at the earliest opportunity\nnotify Corporation of any request.\nSection 6. Reasonableness; Severability\nEmployee acknowledges and agrees that the restrictions placed on Employee and the rights and remedies\nconferred on the Corporation are reasonable in time, scope, and territory and are fully required to protect the legitimate\nbusiness interests of the Corporation without a disproportionate detriment to Employee. If any provision of this\nAgreement shall, for any reason, be adjudged by any court of competent jurisdiction to be invalid or unenforceable (i)\nsuch provision shall remain in force and effect to the maximum extent allowable, if any, (ii) such judgment shall not affect,\nimpair, or invalidate the remainder of this Agreement, but shall be confined in its operation to the provision of this\nAgreement directly involved in the controversy in which such judgment shall have been rendered, and (iii) the\nenforceability or validity of the remaining provisions of this Agreement shall not be affected thereby. If a court finds that\nany provision of this Agreement is invalid or unenforceable, but that modification of such provision will make it valid or\nenforceable, then such provision shall be deemed to be so modified.\nSection 7. Waiver of Age Discrimination Claims/Revocation Period/Effective Date\nEmployee specifically represents that he has read and understands this Agreement and Release, and has been\noffered a minimum of twenty-one (21) days to consider the Agreement before he has to execute it and understands fully\nthe final and binding effect of this Agreement. Employee further agrees that the only promises made to him to sign this\nAgreement are those stated in the Agreement and that he has signed this Agreement voluntarily with the full intent of\nreleasing the Corporation and Released Parties from any and all claims relating to or arising out of his employment with\nthe Corporation. Employee acknowledges that he was advised to consult an attorney, hired by him, to review the\nAgreement and provide advice about it, and he has done so to the extent he desires. In accordance with federal law, this\nAgreement may be revoked by Employee at any time within seven (7) days after the date the Agreement is signed by\nEmployee (the “Revocation Period”). If Employee wishes to revoke this Release, he must revoke it in writing delivered by\nhand delivery or by electronic mail prior to the end of the Revocation Period to Tom Miller, CEO,\ntmiller@questsolution.com; 870 Conger Street, Eugene, OR 97402, or the revocation will not be effective. If Employee\nrevokes his acceptance, none of the rights or obligations set forth in this Agreement will take effect. If Employee does not\nrevoke his acceptance, the Agreement shall become fully effective and enforceable immediately upon expiration of the\nRevocation Period (the “Effective Date”). Employee expressly understands that he is knowingly and voluntarily\nwaiving any claim for age discrimination that he may have under the Age Discrimination in Employment Act;\nFinally, Employee agrees and acknowledges that if he signs this Agreement before the expiration of said twenty-one (21)\nday period referred to hereinabove, that he has affirmatively waived such twenty-one (21) day minimum period, but will\nstill have the seven (7) calendar days within which to revoke this Agreement.\n10\nSection 8. Waiver\nNo consent or waiver, express or implied, by either party with respect to any breach or default by any other party\nin the performance of any other party’s obligations hereunder shall be deemed or construed to be a consent or waiver\nwith respect to any other breach or default in the performance of the same or any other obligation of such other party\nhereunder. A party’s failure to complain of any act or failure to act of any other party or to declare any other party in\ndefault, irrespective of how long such failure continues, shall not constitute a waiver by such party of any rights\nhereunder. The giving of consent by a party in any one instance shall not limit or waive the necessity of obtaining such\nparty’s consent in any future instance. Any consent required to be given hereunder shall be in writing unless otherwise\nprovided herein.\nSection 9. Taxes\nThe Corporation will be responsible for payroll deductions that it would normally be responsible for in connection\nwith a severance agreement to an employee. Employee agrees that he is ultimately and solely responsible for paying the\ncorrect amount of taxes he may owe on any amounts he receives in connection with this Agreement.\nSection 10. Miscellaneous\nThis Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of\nOregon (without regard to the conflicts of laws principles thereof). All sections and descriptive headings of sections and\nsubsections in this Agreement are inserted for convenience only, and shall not affect the construction or interpretation\nhereof. This Agreement may not be modified or amended or any term or provision hereof waived or discharged except in\nwriting signed by the party against whom such amendment, modification, waiver, or discharge is sought to be enforced.\nEach party shall bear its own attorney’s fees in connection with the preparation and review of this Agreement. All of the\nterms of this Agreement, whether so expressed or not, shall be binding upon the successors and assigns of the parties\nhereto and shall inure to the benefit of and be enforceable by the parties hereto and their respective successors and\nassigns. This Agreement and the payments required under Section 2 shall automatically cease upon the death of\nEmployee. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all\nof which together shall constitute one and the same instrument.\n11\nIN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year executed\nby Employee, below.\nQUEST SOLUTION, INC.\nPrinted Name: Thomas Miller\nSignature:\n/s/ Thomas Miller\nDate:\n08/27/2015\nKURT THOMET, AN INDIVIDUAL\nPrinted Name: Kurt Thomet\nSignature:\n/s/ Kurt Thomet\nDate:\n08/26/2015\n12	EXHIBIT A\nNONCOMPETITION/CONFIDENTIALITY, SEPARATION AGREEMENT AND GENERAL RELEASE\nTHIS NONCOMPETITION/CONFIDENTIALITY, SEPARATION AGREEMENT AND GENERAL RELEASE (this\n“Agreement”), is entered into by and between QUEST SOLUTION, INC., a Delaware corporation (the “Corporation”), and\nKURT THOMET, an individual (“Employee”) (collectively the “Parties”).\nWHEREAS, the Corporation operates a transaction processing automation Corporation that focuses on\nenterprise mobility for the supply chain companies in the retail, distribution, logistics, healthcare and manufacturing\nindustries (the “Business”);\nWHEREAS, Employee is a shareholder and employee of the Corporation and has acquired certain confidential\ninformation with respectto the Business;\nWHEREAS, the Corporation and Employee desire to set forth their mutual agreement with respect to all matters\nrelating to the resignation of Employee's employment with Corporation and the parties' mutual release of claims; and\nWHEREAS, in order to protect the Business and the goodwill associated with the Business, the Parties agree\nthat Employee should refrain from engaging in certain businesses that compete or may compete with the Business and\nfrom certain other conduct, all on the terms and conditions contained herein;\nNOW THEREFORE, in consideration of the covenants, warranties and mutual agreements herein set forth, the\npayments set forth in Section 2 hereof, one dollar cash in hand paid, and for other good and valuable consideration, the\nreceipt and adequacy of which is hereby acknowledged, the parties do hereby agree as follows:\nSection 1. Resignation of Employment\nEmployee hereby resigns his employment with Corporation, effective as of the date of his execution of this\nAgreement (“Resignation Date”). Employee acknowledges that his employment separation is properly categorized as a\nvoluntary resignation. Employee represents and warrants that he will never seek re-employment or any contractual\nservice relationship with the Corporation or any of its divisions or affiliates in the future. Employee agrees that this\nprovision is fair, just, and appropriate under all the relevant facts and circumstances.\nSection 2. Consideration\nIn consideration for Employee's obligations under this Agreement, Employee will be entitled to receive payment\nin the gross amount of Five Thousand Dollars ($5,000), less required withholdings and deductions, from the Corporation.\nEmployee has been offered twenty-one (21) days to consider the Agreement. If Employee accepts the Agreement,\npayment will be made on the Effective Date (as defined in Section 7). The Corporation will issue Employee a Form W-2\nforthe payment made under this Section 2.\nIn the event Employee breaches this Agreement, the Corporation shall be entitled to recover any and all amounts\npreviously paid to the Employee under Section 2 of this Agreement, in addition to any other remedies to which the\nCorporation may be entitled at law or in equity.\nSection 3. Release of Claims by Employee\nEmployee hereby waives, releases, and discharges the Corporation, its past and present parents, subsidiaries,\ndivisions, and affiliated companies, their respective past and present stockholders, directors, officers, agents, and\ninsurers (collectively the “Released Parties”), from any and all claims, demands, damages, and causes ofaction from any\nand all claims, causes of action, liabilities, costs (including attorney's fees), obligations, and judgments of any kind,\nwhether direct or contingent in Employee's favor, whether known or unknown, past, present, or future, whether in law or\nin equity, or otherwise and whether in contract, warranty, tort, strict liability, or otherwise, which he now has, may have\nhad at any time in the past, or may have at any time in the future arising or resulting from his employment with\nCorporation or the separation therefrom, except as set forth herein (collectively the “Released Claims”). Employee also\nrepresents and warrants that he has not sold, assigned, or transferred any Released Claim. Employee expressly\nrepresents that he has full legal authority to enter into this Agreement for himself and his heirs.\nThe Released Claims include, but are not limited to, any rights or claims in law or equity, federal, state or local,\nstatutory or common law, for breach of employment contract, wrongful termination, or past wages under applicable state\nlaw; claims relating to discrimination, harassment, retaliation, accommodation, or whistleblowing (for example, claims\nunder Title VII of the Civil Rights Act of 1964 ('Title VII”), the Civil Rights Acts of 1866 and 1871 (42 U.S.C.§ 1981), the\nAmericans with Disabilities Act Amendments Act of 2008 (“ADAAA”) and the Americans with Disabilities Act of 1990\n(“ADA”), the Age Discrimination in Employment Act (“ADEA”) and the Older Workers Benefit Protection Act (“OWBPA”);\nthe Family and Medical Leave Act of 1993, the Fair Labor Standards Act of 1938, the National Labor Relations Act, the\nWorker Adjustment Retraining Notification Act of 1988, the Employee Retirement Income Security Act of 1974 (excepting\nclaims for vested benefits, if any, to which Employee is legally entitled thereunder), or any other federal, state, county or\nlocal law, statute, ordinance, decision, order, policy or regulation prohibiting employment discrimination, harassment or\nretaliation, or otherwise creating rights or claims for employees, including, but not limited to, any and all claims alleging\nbreach of public policy, the implied obligation of good faith and fair dealing, or any implied, oral or written contract,\nhandbook, manual, policy statement or employment practice, or alleging misrepresentation, defamation, interference with\ncontractual relations, intentional or negligent infliction of emotional distress, invasion of privacy, false imprisonment,\nnegligence or wrongful discharge. Provided, however, that this release does not extend to: (1) rights or claims the release\nof which is expressly prohibited by law; (2) rights that may arise after the effective date of this Agreement; and (3)\nEmployee's right to enforce or rescind this Agreement.\nEmployee agrees that Employee will not seek and waives any right to accept any benefit or consideration from\nany source whatsoever with respect to any claims that Employee has asserted or could have asserted against the\nReleased Parties, whetherfiled by Employee or on Employee's behalf. Employee further agrees that if Employee, or any\nperson or entity representing Employee, or any federal, state or local agency, files or asserts such claims, this Agreement\nwill act as a total and complete bar to recovery of any judgment, award, damages or remedy of any kind, except where\nexpressly prohibited by law.\nEmployee understands that he is releasing the Released Parties from claims that he may not know about as of\nthe date of the execution of this Agreement, and that it is his knowing and voluntary intent even though Employee\nrecognizes that someday he might learn that some or all ofthe facts he currently believes to be true are untrue and even\nthough he might then regret having signed this Agreement. Nevertheless, Employee understands that he is expressly\nassuming that risk and agrees that this Agreement shall remain effective in all respects in any such case. Employee\nexpressly and completely waives all rights he might have under any law that is intended to protect him from waiving\nunknown claims, and Employee understands the significance ofdoing so.\nEmployee represents that neither Employee nor, to his knowledge, any person or entity acting on Employee's\nbehalf or with Employee's authority has asserted with any federal, state or local judicial or administrative body any claim\nof any kind based on or arising out of any aspect of Employee's employment with the Corporation or the ending of that\nemployment. Employee further represents that he is not participating, either directly or indirectly, in any investigations,\nproceedings, actions, or claims againstthe Corporation.\nEmployee hereby specifically covenants and agrees that he shall not initiate, or cause to be initiated, any action\nor cause of action againstthe Released Parties in the future asserting any claims released in this Agreement, except that\nthe foregoing shall not preclude Employee from filing a charge ofdiscrimination as allowed by law.\nTo his actual knowledge, as of the Effective Date without any additional investigation, Employee has disclosed to\nthe Corporation any matters for which he was responsible as an employee of the Corporation that are reasonably likely to\ngive rise to, evidence, or support any claim of unlawful, unethical, or improper conduct, regulatory violation, unlawful\ndiscrimination, retaliation, or other cause of action against the Corporation. Employee will not be considered in breach of\nthe foregoing with respect to any matter within the actual knowledge without any additional investigation ofJason F.\nGriffith, Scot Ross, and Thomas Miller, or any of them, on or before the Effective Date.\nEmployee acknowledges and agrees that with the exception of his final wages, which will be paid in accordance\nwith the Corporation's usual payroll practices and in accordance with state law, no other payments, commissions,\nbonuses, or benefits will be made by Corporation to Employee based on Employee's employment by Corporation; and\nEmployee acknowledges that he has no entitlement to, or any right to make any claim for, any additional payments,\ncommissions, bonuses, or benefits by Corporation of any kind whatsoever, that are due based on Employee's\nemployment by Corporation. Employee's eligibility for coverage as an active employee under all employee benefit plans\nmaintained by Corporation terminate on the Resignation Date. Employee may purchase, if eligible, continuation of health\nbenefits coverage to the extent and forthe period provided by law.\nSection 4. Release of Claims by Corporation\nFor, and in consideration of the promises contained herein, the sufficiency, adequacy, and receipt of all of which\nconsideration is hereby expressly acknowledged, Corporation releases and discharges Employee from any and all\nobligations, claims, damages, demands, liabilities, equities, actions, causes of actions and legal theories of whatever\nkind, in law or in equity, in contract or tort or public policy, both known and unknown, suspected and unsuspected,\ndisclosed and undisclosed, actual and consequential, specific and general, however denominated, from the beginning of\ntime up to and including the time of the signing of this Agreement; whether for income from any source, declaratory or\ninjunctive relief, compensatory or punitive damages, wages, severance benefits, money, remuneration, emotional\ndistress, injunctive relief, costs, expenses, attorneys' fees, or thing of any value whatsoever, by Corporation against\nEmployee, including but not limited to any claims arising out of or resulting from Employee's employment with\nCorporation, and any other matter between Employee and Corporation. Provided, however, that Corporation is not\nreleasing any claim that relates to (1) its right to enforce this Agreement; (2) any rights or claims that arise after the\nexecution of this Agreement; or (3) any rights that it cannot lawfully release.\nSection 5. Noncompetition; Confidentiality; Non-Disparagement\nEmployee agrees that for a period of six (6) months, beginning with the execution of this Agreement (the\n“Covenant Period”), Employee will not, without the prior written consent of the Corporation in each instance: (1)\nparticipate or engage, directly or indirectly, in the ownership, management, operation, or control of, or work for as an\nemployee, independent contractor or consultant, or be connected as a partner, member, owner, investor, lender or\notherwise, with, or have any financial interest in, or aid or assist anyone else in the conduct of any of the businesses or\ncustomers described on Schedule I, attached hereto; or (2) directly or indirectly, employ, offer to employ, recruit, solicit,\nentice away, or in any other manner persuade or attempt to persuade any employee or independent contractor of the\nCorporation or any person who, at any time during the twelve (12) months preceding the date in question, was an\nemployee, independent contractor, patient or customer of the Corporation orthe Business, to discontinue the relationship\nwith the Corporation.\nEmployee agrees that, for a period of two (2) years after execution of this Agreement, he will hold and keep\nconfidential all Confidential Information (as defined below) to which Employee, at any time shall have become informed,\nand that he will not, directly or indirectly, disclose any Confidential Information to any person, firm, corporation or entity,\nor use the same, or permit the same to be disclosed or used. “Confidential Information”as used herein means proprietary\ninformation directly relating to the Corporation or developed exclusively by the Corporation or developed for the use of\nthe Corporation or the Business and shall include, without limitation, the following types of information regarding the\nCorporation orthe Business: corporate information, including business information, plans, strategies, tactics, or policies;\nmarketing information, including strategies, tactics, methods, customer and patient lists, prospects, and market research\ndata; financial data or forecasts; policies or procedures; know-how and ideas; operational information, including trade\nsecrets; technical information, including designs, drawings and specifications; and any proprietary compounding\ninformation. Confidential Information is limited to that information which is not generally known to the public (other than as\na result of unauthorized disclosure by Employee) or within the industry of which the businesses described in Schedule I\nare a part.\nEmployee expressly represents and warrants that he shall not disclose the existence or terms of this Agreement\nto any third person without the prior express written consent of the Corporation. Notwithstanding the foregoing, Employee\nmay disclose the existence and/or terms of this Agreement: (1) to his attorneys or accountants, to the extent that such\ndisclosure is necessary in the preparation of his tax returns; (2) pursuant to a securities regulatory request or to comply\nwith a securities regulatory requirement or other legal obligation; (3) pursuant to a duly-issued court or arbitration order;\nand (4) if the existence and/or terms of this Agreement have previously become disclosed by Corporation in a public\nfiling. In the case of a disclosure required pursuant to a duly-issued court or arbitration order, Employee or his attorneys\nshall atthe earliest opportunity notify Corporation of any request or order compelling disclosure of any of the terms of this\nAgreement so as to allow Corporation an opportunity to take appropriate action to protecttheir interests. In the case of a\ndisclosure required pursuant to a securities regulatory request, Employee or his attorneys shall atthe earliest opportunity\nnotify Corporation of any request.\nSection 6. Reasonableness; Severability\nEmployee acknowledges and agrees that the restrictions placed on Employee and the rights and remedies\nconferred on the Corporation are reasonable in time, scope, and territory and are fully required to protect the legitimate\nbusiness interests of the Corporation without a disproportionate detriment to Employee. If any provision of this\nAgreement shall, for any reason, be adjudged by any court of competent jurisdiction to be invalid or unenforceable (i)\nsuch provision shall remain in force and effect to the maximum extent allowable, if any, (ii) such judgment shall not affect,\nimpair, or invalidate the remainder of this Agreement, but shall be confined in its operation to the provision of this\nAgreement directly involved in the controversy in which such judgment shall have been rendered, and (iii) the\nenforceability or validity of the remaining provisions of this Agreement shall not be affected thereby. If a court finds that\nany provision of this Agreement is invalid or unenforceable, but that modification of such provision will make it valid or\nenforceable, then such provision shall be deemed to be so modified.\nSection 7. Waiver onge Discrimination Claims/Revocation Period/Effective Date\nEmployee specifically represents that he has read and understands this Agreement and Release, and has been\noffered a minimum of twenty-one (21) days to consider the Agreement before he has to execute it and understands fully\nthe final and binding effect of this Agreement. Employee further agrees that the only promises made to him to sign this\nAgreement are those stated in the Agreement and that he has signed this Agreement voluntarily with the full intent of\nreleasing the Corporation and Released Parties from any and all claims relating to or arising out of his employment with\nthe Corporation. Employee acknowledges that he was advised to consult an attorney, hired by him, to review the\nAgreement and provide advice about it, and he has done so to the extent he desires. In accordance with federal law, this\nAgreement may be revoked by Employee at any time within seven (7) days after the date the Agreement is signed by\nEmployee (the “Revocation Period”). If Employee wishes to revoke this Release, he must revoke it in writing delivered by\nhand delivery or by electronic mail prior to the end of the Revocation Period to Tom Miller, CEO,\ntmiller@questsolution.com; 870 Conger Street, Eugene, OR 97402, or the revocation will not be effective. If Employee\nrevokes his acceptance, none of the rights or obligations set forth in this Agreement will take effect. If Employee does not\nrevoke his acceptance, the Agreement shall become fully effective and enforceable immediately upon expiration of the\nRevocation Period (the “Effective Date”). Employee expressly understands that he is knowingly and voluntarily\nwaiving any claim for age discrimination that he may have under the Age Discrimination in Employment Act;\nFinall , Em lo ee a rees and acknowled es that if he si ns this A reement before the ex iration of said twen -one 21\nday period referred to hereinabove, that he has affirmativer waived such twenty-one (21) day minimum period, but will\nstill have the seven (7) calendar days within which to revoke this Agreement.\n10\nSection 8. Waiver\nNo consent or waiver, express or implied, by either party with respect to any breach or default by any other party\nin the performance of any other party's obligations hereunder shall be deemed or construed to be a consent or waiver\nwith respect to any other breach or default in the performance of the same or any other obligation of such other party\nhereunder. A party's failure to complain of any act or failure to act of any other party or to declare any other party in\ndefault, irrespective of how long such failure continues, shall not constitute a waiver by such party of any rights\nhereunder. The giving of consent by a party in any one instance shall not limit or waive the necessity of obtaining such\nparty's consent in any future instance. Any consent required to be given hereunder shall be in writing unless otherwise\nprovided herein.\nSection 9. Taxes\nThe Corporation will be responsible for payroll deductions that it would normally be responsible for in connection\nwith a severance agreement to an employee. Employee agrees that he is ultimately and solely responsible for paying the\ncorrect amount of taxes he may owe on any amounts he receives in connection with this Agreement.\nSection 10. Miscellaneous\nThis Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of\nOregon (without regard to the conflicts of laws principles thereof). All sections and descriptive headings of sections and\nsubsections in this Agreement are inserted for convenience only, and shall not affect the construction or interpretation\nhereof. This Agreement may not be modified or amended or any term or provision hereof waived or discharged except in\nwriting signed by the party against whom such amendment, modification, waiver, or discharge is sought to be enforced.\nEach party shall bear its own attorney's fees in connection with the preparation and review of this Agreement. All of the\nterms of this Agreement, whether so expressed or not, shall be binding upon the successors and assigns of the parties\nhereto and shall inure to the benefit of and be enforceable by the parties hereto and their respective successors and\nassigns. This Agreement and the payments required under Section 2 shall automatically cease upon the death of\nEmployee. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all\nof which together shall constitute one and the same instrument.\nll\nIN WITNESS WHEREOF, the parties hereto have duly executed this Agreementas of the day and year executed\nby Employee, below.\nQUEST SOLUTION, INC.\nPrinted Name: Thomas Miller\nSignature: /s/Thomas Miller\nDate: 08/27/2015\nKURT THO MET, AN INDIVIDUAL\nPrinted Name: Kurt Thomet\nSignature: /s/ Kurt Thomet\nDate: 08/26/2015\n12	EXHIBIT A\nNONCOMPETITION/CONFIDENTIALITY,S SEPARATION AGREEMENT AND GENERAL RELEASE\nTHIS NONCOMPETITION/CONFIDENTIALITY, SEPARATION AGREEMENT AND GENERAL RELEASE (this\n"Agreement"), is entered into by and between QUEST SOLUTION, INC., a Delaware corporation (the "Corporation"), and\nKURT THOMET, an individual ("Employee") (collectively the "Parties").\nWHEREAS, the Corporation operates a transaction processing automation Corporation that focuses on\nenterprise mobility for the supply chain companies in the retail, distribution, logistics, healthcare and manufacturing\nindustries (the "Business");\nWHEREAS, Employee is a shareholder and employee of the Corporation and has acquired certain confidential\ninformation with respect to the Business;\nWHEREAS, the Corporation and Employee desire to set forth their mutual agreement with respect to all matters\nrelating to the resignation of Employee's employment with Corporation and the parties' mutual release of claims; and\nWHEREAS, in order to protect the Business and the goodwill associated with the Business, the Parties agree\nthat Employee should refrain from engaging in certain businesses that compete or may compete with the Business and\nfrom certain other conduct, all on the terms and conditions contained herein;\nNOW THEREFORE, in consideration of the covenants, warranties and mutual agreements herein set forth, the\npayments set forth in Section 2 hereof, one dollar cash in hand paid, and for other good and valuable consideration, the\nreceipt and adequacy of which is hereby acknowledged, the parties do hereby agree as follows:\nSection 1. Resignation of Employment\nEmployee hereby resigns his employment with Corporation, effective as of the date of his execution of this\nAgreement ("Resignation Date"). Employee acknowledges that his employment separation is properly categorized as a\nvoluntary resignation. Employee represents and warrants that he will never seek re-employment or any contractual\nservice relationship with the Corporation or any of its divisions or affiliates in the future. Employee agrees that this\nprovision is fair, just, and appropriate under all the relevant facts and circumstances.\nSection 2. Consideration\nIn consideration for :mployee's obligations under this Agreement, Employee will be entitled to receive payment\nin the gross amount of Five Thousand Dollars ($5,000), less required withholdings and deductions, from the Corporation.\nEmployee has been offered twenty-one (21) days to consider the Agreement. If Employee accepts the Agreement,\npayment will be made on the Effective Date (as defined in Section 7) The Corporation will issue Employee a Form W-2\nfor the payment made under this Section 2.\n6\nIn the event E mployee breaches this Agreement, the Corporation shall be entitled to recover any and all amounts\npreviously paid to the Employee under Section 2 of this Agreement, in addition to any other remedies to which the\nCorporation may be entitled at law or in equity.\nSection 3. Release of Claims by Employee\nEmployee hereby waives, releases, and discharges the Corporation, its past and present parents, subsidiaries,\ndivisions, and affiliated companies, their respective past and present stockholders, directors, officers, agents, and\ninsurers (collectively the "Released Parties"), from any and all claims, demands, damages, and causes of action from any\nand\nall\nclaims,\ncauses\nof\naction,\nliabilities,\ncosts\n(including\nattorney's\nfees),\nobligations,\nand\njudgments\nof\nany\nkind,\nwhether direct or contingent in Employee's favor, whether known or unknown, past, present, or future, whether in law or\nin equity, or otherwise and whether in contract, warranty, tort, strict liability, or otherwise, which he now has, may have\nhad at any time in the past, or may have at any time in the future arising or resulting from his employment with\nCorporation or the separation therefrom, except as set forth herein (collectively the "Released Claims"). Employee also\nrepresents and warrants that he has not sold, assigned, or transferred any Released Claim. Employee expressly\nrepresents that he has ful legal authority to enter into this Agreement for himself and his heirs.\nThe Released Claims include, but are not limited to, any rights or claims in law or equity, federal, state or local,\nstatutory or common law, for breach of employment contract, wrongful termination, or past wages under applicable state\nlaw; claims relating to discrimination, harassment, retaliation, accommodation, or whistleblowing (for example, claims\nunder Title VII of the Civil Rights Act of 1964 ('Title VII"), the Civil Rights Acts of 1866 and 1871 (42 U.S.C. 1981), the\nAmericans with Disabilities Act Amendments Act of 2008 ("ADAAA") and the Americans with Disabilities Act of 1990\n("ADA"), the Age Discrimination in E mployment Act ("ADEA") and the Older Workers Benefit rotection Act ("OWBPA");\nthe Family and Medica Leave Act of 1993, the Fair Labor Standards Act of 1938, the National Labor Relations Act, the\nWorker Adjustment Retraining Notification Act of 1988, the Employee Retirement Income Security Act of 1974 (excepting\nclaims\nfor\nvested\nbenefits,\nif\nany,\nto\nwhich\nE\nmployee\nis\nlegally\nentitled\nthereunder),\nor\nany\nother\nfederal,\nstate,\ncounty\nor\nlocal law, statute, ordinance, decision, order, policy or regulation prohibiting employment discrimination, harassment or\nretaliation, or otherwise creating rights or claims for employees, including, but not limited to, any and all claims alleging\nbreach of public policy, the implied obligation of good faith and fair dealing, or any implied, oral or written contract,\nhandbook, manual, policy statement or employment practice, or alleging misrepresentation, defamation, interference with\ncontractual relations, intentional or negligent infliction of emotional distress, invasion of privacy, false imprisonment,\nnegligence or wrongful discharge. Provided, however, that this release does not extend to: (1) rights or claims the release\nof which is expressly prohibited by law; (2) rights that may arise after the effective date of this Agreement; and (3)\nEmployee's right to enforce or rescind this Agreement.\nEmployee agrees that mployee will not seek and waives any right to accept any benefit or consideration from\nany source whatsoever with respect to any claims that Employee has asserted or could have asserted against the\nReleased Parties, whether filed by Employee or on Employee's behalf. mployee further agrees that if mployee, or any\nperson or entity representing mployee, or any federal, state or local agency, files or asserts such claims, this Agreement\nwil act as a total and complete bar to recovery of any judgment, award, damages or remedy of any kind, except where\nexpressly prohibited by law.\n7\nEmployee understands that he is releasing the Released arties from claims that he may not know about as of\nthe date of the execution of this Agreement, and that it is his knowing and voluntary intent even though Employee\nrecognizes that someday he might learn that some or all of the facts he currently believes to be true are untrue and even\nthough he might then regret having signed this Agreement. Nevertheless, Employee understands that he is expressly\nassuming that risk and agrees that this Agreement shall remain effective in all respects in any such case. Employee\nexpressly and completely waives all rights he might have under any law that is intended to protect him from waiving\nunknown claims, and mployee understands the significance of doing so.\nEmployee represents that neither Employee nor, to his knowledge, any person or entity acting on Employee's\nbehalf or with Employee's authority has asserted with any federal, state or local judicial or administrative body any claim\nof any kind based on or arising out of any aspect of Employee's employment with the Corporation or the ending of that\nemployment. E mployee further represents that he is not participating, either directly or indirectly, in any investigations,\nproceedings, actions, or claims against the Corporation.\nEmployee hereby specifically covenants and agrees that he shall not initiate, or cause to be initiated, any action\nor cause of action against the Released Parties in the future asserting any claims released in this Agreement, except that\nthe foregoing shall not preclude Employee from filing a charge of discrimination as allowed by law.\nTo his actual knowledge, as of the E ffective Date without any additiona investigation, E mployee has disclosed to\nthe Corporation any matters for which he was responsible as an employee of the Corporation that are reasonably likely to\ngive rise to, evidence, or support any claim of unlawful, unethical, or improper conduct, regulatory violation, unlawful\ndiscrimination, retaliation, or other cause of action against the Corporation Employee will not be considered in breach of\nthe foregoing with respect to any matter within the actual knowledge without any additional investigation of J ason F.\nGriffith, Scot Ross, and Thomas Miller, or any of them, on or before the E ffective Date.\nEmployee acknowledges and agrees that with the exception of his final wages, which will be paid in accordance\nwith the Corporation's usual payroll practices and in accordance with state law, no other payments, commissions,\nbonuses,\nor\nbenefits\nwil\nbe\nmade\nby\nCorporation\nto\nEmployee\nbased\non\nEmployee's\nemployment\nby\nCorporation\nand\nEmployee acknowledges that he has no entitlement to, or any right to make any claim for, any additional payments,\ncommissions, bonuses, or benefits by Corporation of any kind whatsoever, that are due based on Employee's\nemployment by Corporation. mployee's eligibility for coverage as an active employee under all employee benefit plans\nmaintained by Corporation terminate on the Resignation Date. Employee may purchase, if eligible, continuation of health\nbenefits coverage to the extent and for the period provided by law.\n8\nSection 4. Release of Claims by Corporation\nFor, and in consideration of the promises contained herein, the sufficiency, adequacy, and receipt of all of which\nconsideration is hereby expressly acknowledged, Corporation releases and discharges Employee from any and all\nobligations, claims, damages, demands, liabilities, equities, actions, causes of actions and legal theories of whatever\nkind, in law or in equity, in contract or tort or public policy, both known and unknown, suspected and unsuspected,\ndisclosed and undisclosed, actua and consequential, specific and general, however denominated, from the beginning of\ntime\nup\nto\nand\nincluding\nthe\ntime\nof\nthe\nsigning\nof\nthis\nAgreement;\nwhether\nfor\nincome\nfrom\nany\nsource,\ndeclaratory\nor\ninjunctive relief, compensatory or punitive damages, wages, severance benefits, money, remuneration, emotional\ndistress, injunctive relief, costs, expenses, attorneys' fees, or thing of any value whatsoever, by Corporation against\nEmployee, including but not limited to any claims arising out of or resulting from Employee's employment with\nCorporation, and any other matter between Employee and Corporation. Provided, however, that Corporation is not\nreleasing any claim that relates to (1) its right to enforce this Agreement (2) any rights or claims that arise after the\nexecution of this Agreement; or (3) any rights that it cannot lawfully release.\nSection 5. Noncompetition; Confidentiality; Non-Disparagement\nEmployee agrees that for a period of six (6) months, beginning with the execution of this Agreement (the\n"Covenant\nPeriod"),\nmployee\nwil\nnot,\nwithout\nthe\nprior\nwritten\nconsent\nof\nthe\nCorporation\nin\neach\ninstance:\n(1)\nparticipate or engage, directly or indirectly, in the ownership, management, operation, or control of, or work for as an\nemployee, independent contractor or consultant, or be connected as a partner, member, owner, investor, lender or\notherwise, with, or have any financial interest in, or aid or assist anyone else in the conduct of any of the businesses or\ncustomers described on Schedule I, attached hereto; or (2) directly or indirectly, employ, offer to employ, recruit, solicit,\nentice away, or in any other manner persuade or attempt to persuade any employee or independent contractor of the\nCorporation or any person who, at any time during the twelve (12) months preceding the date in question, was an\nemployee, independent contractor, patient or customer of the Corporation or the Business, to discontinue the relationship\nwith the Corporation.\nEmployee agrees that, for a period of two (2) years after execution of this Agreement, he will hold and keep\nconfidential all Confidential Information (as defined below) to which Employee, at any time shall have become informed,\nand that he will not, directly or indirectly, disclose any Confidential Information to any person, firm, corporation or entity,\nor use the same, or permit the same to be disclosed or used. "Confidential Information" as used herein means proprietary\ninformation directly relating to the Corporation or developed exclusively by the Corporation or developed for the use of\nthe Corporation or the Business and shall include, without limitation, the following types of information regarding the\nCorporation\nor\nthe\nBusiness:\ncorporate\ninformation,\nincluding\nbusiness\ninformation,\nplans,\nstrategies,\ntactics,\nor\npolicies;\nmarketing information, including strategies, tactics, methods, customer and patient lists, prospects, and market research\ndata; financial data or forecasts; policies or procedures; know-how and ideas; operational information, including trade\nsecrets; technical information, including designs, drawings and specifications; and any proprietary compounding\ninformation. Confidential Information is limited to that information which is not generally known to the public (other than as\na result of unauthorized disclosure by Employee) or within the industry of which the businesses described in Schedule\nI\nare a part.\n9\nEmployee expressly represents and warrants that he shall not disclose the existence or terms of this Agreement\nto any third person without the prior express written consent of the Corporation. Notwithstanding the foregoing, Employee\nmay disclose the existence and/or terms of this Agreement: (1) to his attorneys or accountants, to the extent that such\ndisclosure is necessary in the preparation of his tax returns; (2) pursuant to a securities regulatory request or to comply\nwith a securities regulatory requirement or other legal obligation; (3) pursuant to a duly-issued court or arbitration order;\nand (4) if the existence and/or terms of this Agreement have previously become disclosed by Corporation in a public\nfiling. In the case of a disclosure required pursuant to a duly-issued court or arbitration order, Employee or his attorneys\nshall at the earliest opportunity notify Corporation of any request or order compelling disclosure of any of the terms of this\nAgreement so as to allow Corporation an opportunity to take appropriate action to protect their interests. In the case of a\ndisclosure required pursuant to a securities regulatory request, Employee or his attorneys shall at the earliest opportunity\nnotify Corporation of any request.\nSection 6. Reasonableness; Severability\nEmployee acknowledges and agrees that the restrictions placed on Employee and the rights and remedies\nconferred on the Corporation are reasonable in time, scope, and territory and are fully required to protect the legitimate\nbusiness\ninterests\nof\nthe\nCorporation\nwithout\na\ndisproportionate\ndetriment\nto\nEmployee.\nIf\nany\nprovision\nof\nthis\nAgreement shall, for any reason, be adjudged by any court of competent jurisdiction to be invalid or unenforceable (i)\nsuch provision shall remain in force and effect to the maximum extent allowable, if any, (ii) such judgment shall not affect,\nimpair, or invalidate the remainder of this Agreement, but shall be confined in its operation to the provision of this\nAgreement directly involved in the controversy in which such judgment shall have been rendered, and (iii) the\nenforceability or validity of the remaining provisions of this Agreement shall not be affected thereby. If a court finds that\nany provision of this Agreement is invalid or unenforceable, but that modification of such provision will make it valid or\nenforceable, then such provision shall be deemed to be so modified.\nSection 7. Waiver of Age Discrimination Claims/Revocation Period/Effective Date\nEmployee specifically represents that he has read and understands this Agreement and Release, and has been\noffered a minimum of twenty-one (21) days to consider the Agreement before he has to execute it and understands fully\nthe final and binding effect of this Agreement. Employee further agrees that the only promises made to him to sign this\nAgreement are those stated in the Agreement and that he has signed this Agreement voluntarily with the full intent of\nreleasing the Corporation and Released Parties from any and all claims relating to or arising out of his employment with\nthe Corporation. Employee acknowledges that he was advised to consult an attorney, hired by him, to review the\nAgreement and provide advice about it, and he has done so to the extent he desires. In accordance with federal law, this\nAgreement\nmay\nbe\nrevoked\nby\nEmployee\nat\nany\ntime\nwithin\nseven\n(7)\ndays\nafter\nthe\ndate\nthe\nAgreement\nis\nsigned\nby\nEmployee (the "Revocation Period"). If E mployee wishes to revoke this Release, he must revoke it in writing delivered by\nhand delivery or by electronic mail prior to the end of the Revocation Period to Tom Miller, CEO,\ntmiller@ questsolution.com; 870 Conger Street, Eugene, OR 97402, or the revocation will not be effective. If Employee\nrevokes his acceptance, none of the rights or obligations set forth in this Agreement wil take effect. If Employee does not\nrevoke his acceptance, the Agreement shall become fully effective and enforceable immediately upon expiration of the\nRevocation Period (the "Effective Date"). Employee expressly understands that he is knowingly and voluntarily\nwaiving\nany\nclaim\nfor\nage\ndiscrimination\nthat\nhe\nmay\nhave\nunder\nthe\nAge\nDiscrimination\nin\nEmployment\nAct;\nFinally, Employee agrees and acknowledges that if he signs this Agreement before the expiration of said twenty-one (21)\nday period referred to hereinabove, that he has affirmatively waived such twenty-one (21) day minimum period, but wil\nstill have the seven (7) calendar days within which to revoke this Agreement\n10\nSection 8. Waiver\nNo consent or waiver, express or implied, by either party with respect to any breach or default by any other party\nin the performance of any other party's obligations hereunder shall be deemed or construed to be a consent or waiver\nwith respect to any other breach or default in the performance of the same or any other obligation of such other party\nhereunder. A party's failure to complain of any act or failure to act of any other party or to declare any other party in\ndefault, irrespective of how long such failure continues, shall not constitute a waiver by such party of any rights\nhereunder.\nThe\ngiving\nof\nconsent\nby\na\nparty\nin\nany\none\ninstance\nshal\nnot\nlimit\nor\nwaive\nthe\nnecessity\nof\nobtaining\nsuch\nparty's consent in any future instance. Any consent required to be given hereunder shall be in writing unless otherwise\nprovided herein.\nSection 9. Taxes\nThe Corporation will be responsible for payroll deductions that it would normally be responsible for in connection\nwith a severance agreement to an employee Employee agrees that he is ultimately and solely responsible for paying the\ncorrect amount of taxes he may owe on any amounts he receives in connection with this Agreement.\nSection 10. Miscellaneous\nThis Agreement shal be construed and enforced in accordance with, and governed by, the laws of the State of\nOregon (without regard to the conflicts of laws principles thereof) AIl sections and descriptive headings of sections and\nsubsections in this Agreement are inserted for convenience only, and shall not affect the construction or interpretation\nhereof. This Agreement may not be modified or amended or any term or provision hereof waived or discharged except in\nwriting signed by the party against whom such amendment, modification, waiver, or discharge is sought to be enforced.\nEach party shall bear its own attorney's fees in connection with the preparation and review of this Agreement. All of the\nterms of this Agreement, whether so expressed or not, shal be binding upon the successors and assigns of the parties\nhereto and shall inure to the benefit of and be enforceable by the parties hereto and their respective successors and\nassigns. This Agreement and the payments required under Section 2 shal automatically cease upon the death of\nmployee. This Agreement may be executed in several counterparts, each of which shal be deemed an original, but all\nof which together shall constitute one and the same instrument\n11\nIN WITNESS WHEREOF the parties hereto have duly executed this Agreement as of the day and year executed\nby Employee, below.\nQUEST SOLUTION, INC.\nPrinted Name:\nThomas Miller\nSignature:\n/s/ Thomas Miller\nDate:\n08/27/2015\nKURT THOMET, AN INDIVIDUAL\nPrinted Name:\nKurt Thomet\nSignature:\n/s/ Kurt Thomet\nDate\n08/26/2015\n12	EXHIBIT A\nNONCOMPETITION/CONFIDENTIALITY, SEPARATION AGREEMENT AND GENERAL RELEASE\nTHIS NONCOMPETITION/CONFIDENTIALITY, SEPARATION AGREEMENT AND GENERAL RELEASE (this\n“Agreement”), is entered into by and between QUEST SOLUTION, INC., a Delaware corporation (the “Corporation”), and\nKURT THOMET, an individual (“Employee”) (collectively the “Parties”).\nWHEREAS, the Corporation operates a transaction processing automation Corporation that focuses on\nenterprise mobility for the supply chain companies in the retail, distribution, logistics, healthcare and manufacturing\nindustries (the “Business”);\nWHEREAS, Employee is a shareholder and employee of the Corporation and has acquired certain confidential\ninformation with respect to the Business;\nWHEREAS, the Corporation and Employee desire to set forth their mutual agreement with respect to all matters\nrelating to the resignation of Employee’s employment with Corporation and the parties’ mutual release of claims; and\nWHEREAS, in order to protect the Business and the goodwill associated with the Business, the Parties agree\nthat Employee should refrain from engaging in certain businesses that compete or may compete with the Business and\nfrom certain other conduct, all on the terms and conditions contained herein;\nNOW THEREFORE, in consideration of the covenants, warranties and mutual agreements herein set forth, the\npayments set forth in Section 2 hereof, one dollar cash in hand paid, and for other good and valuable consideration, the\nreceipt and adequacy of which is hereby acknowledged, the parties do hereby agree as follows:\nSection 1. Resignation of Employment\nEmployee hereby resigns his employment with Corporation, effective as of the date of his execution of this\nAgreement (“Resignation Date”). Employee acknowledges that his employment separation is properly categorized as a\nvoluntary resignation. Employee represents and warrants that he will never seek re-employment or any contractual\nservice relationship with the Corporation or any of its divisions or affiliates in the future. Employee agrees that this\nprovision is fair, just, and appropriate under all the relevant facts and circumstances.\nSection 2. Consideration\nIn consideration for Employee’s obligations under this Agreement, Employee will be entitled to receive payment\nin the gross amount of Five Thousand Dollars ($5,000), less required withholdings and deductions, from the Corporation.\nEmployee has been offered twenty-one (21) days to consider the Agreement. If Employee accepts the Agreement,\npayment will be made on the Effective Date (as defined in Section 7). The Corporation will issue Employee a Form W-2\nfor the payment made under this Section 2.\n6\nIn the event Employee breaches this Agreement, the Corporation shall be entitled to recover any and all amounts\npreviously paid to the Employee under Section 2 of this Agreement, in addition to any other remedies to which the\nCorporation may be entitled at law or in equity.\nSection 3. Release of Claims by Employee\nEmployee hereby waives, releases, and discharges the Corporation, its past and present parents, subsidiaries,\ndivisions, and affiliated companies, their respective past and present stockholders, directors, officers, agents, and\ninsurers (collectively the “Released Parties”), from any and all claims, demands, damages, and causes of action from any\nand all claims, causes of action, liabilities, costs (including attorney’s fees), obligations, and judgments of any kind,\nwhether direct or contingent in Employee’s favor, whether known or unknown, past, present, or future, whether in law or\nin equity, or otherwise and whether in contract, warranty, tort, strict liability, or otherwise, which he now has, may have\nhad at any time in the past, or may have at any time in the future arising or resulting from his employment with\nCorporation or the separation therefrom, except as set forth herein (collectively the “Released Claims”). Employee also\nrepresents and warrants that he has not sold, assigned, or transferred any Released Claim. Employee expressly\nrepresents that he has full legal authority to enter into this Agreement for himself and his heirs.\nThe Released Claims include, but are not limited to, any rights or claims in law or equity, federal, state or local,\nstatutory or common law, for breach of employment contract, wrongful termination, or past wages under applicable state\nlaw; claims relating to discrimination, harassment, retaliation, accommodation, or whistleblowing (for example, claims\nunder Title VII of the Civil Rights Act of 1964 (“Title VII”), the Civil Rights Acts of 1866 and 1871 (42 U.S .C. § 1981), the\nAmericans with Disabilities Act Amendments Act of 2008 (“ADAAA”) and the Americans with Disabilities Act of 1990\n(“ADA”), the Age Discrimination in Employment Act (“ADEA”) and the Older Workers Benefit Protection Act (“OWBPA”);\nthe Family and Medical Leave Act of 1993, the Fair Labor Standards Act of 1938, the National Labor Relations Act, the\nWorker Adjustment Retraining Notification Act of 1988, the Employee Retirement Income Security Act of 1974 (excepting\nclaims for vested benefits, if any, to which Employee is legally entitled thereunder), or any other federal, state, county or\nlocal law, statute, ordinance, decision, order, policy or regulation prohibiting employment discrimination, harassment or\nretaliation, or otherwise creating rights or claims for employees, including, but not limited to, any and all claims alleging\nbreach of public policy, the implied obligation of good faith and fair dealing, or any implied, oral or written contract,\nhandbook, manual, policy statement or employment practice, or alleging misrepresentation, defamation, interference with\ncontractual relations, intentional or negligent infliction of emotional distress, invasion of privacy, false imprisonment,\nnegligence or wrongful discharge. Provided, however, that this release does not extend to: (1) rights or claims the release\nof which is expressly prohibited by law; (2) rights that may arise after the effective date of this Agreement; and (3)\nEmployee’s right to enforce or rescind this Agreement.\nEmployee agrees that Employee will not seek and waives any right to accept any benefit or consideration from\nany source whatsoever with respect to any claims that Employee has asserted or could have asserted against the\nReleased Parties, whether filed by Employee or on Employee’s behalf. Employee further agrees that if Employee, or any\nperson or entity representing Employee, or any federal, state or local agency, files or asserts such claims, this Agreement\nwill act as a total and complete bar to recovery of any judgment, award, damages or remedy of any kind, except where\nexpressly prohibited by law.\n7\nEmployee understands that he is releasing the Released Parties from claims that he may not know about as of\nthe date of the execution of this Agreement, and that it is his knowing and voluntary intent even though Employee\nrecognizes that someday he might learn that some or all of the facts he currently believes to be true are untrue and even\nthough he might then regret having signed this Agreement. Nevertheless, Employee understands that he is expressly\nassuming that risk and agrees that this Agreement shall remain effective in all respects in any such case. Employee\nexpressly and completely waives all rights he might have under any law that is intended to protect him from waiving\nunknown claims, and Employee understands the significance of doing so.\nEmployee represents that neither Employee nor, to his knowledge, any person or entity acting on Employee’s\nbehalf or with Employee’s authority has asserted with any federal, state or local judicial or administrative body any claim\nof any kind based on or arising out of any aspect of Employee’s employment with the Corporation or the ending of that\nemployment. Employee further represents that he is not participating, either directly or indirectly, in any investigations,\nproceedings, actions, or claims against the Corporation.\nEmployee hereby specifically covenants and agrees that he shall not initiate, or cause to be initiated, any action\nor cause of action against the Released Parties in the future asserting any claims released in this Agreement, except that\nthe foregoing shall not preclude Employee from filing a charge of discrimination as allowed by law.\nTo his actual knowledge, as of the Effective Date without any additional investigation, Employee has disclosed to\nthe Corporation any matters for which he was responsible as an employee of the Corporation that are reasonably likely to\ngive rise to, evidence, or support any claim of unlawful, unethical, or improper conduct, regulatory violation, unlawful\ndiscrimination, retaliation, or other cause of action against the Corporation. Employee will not be considered in breach of\nthe foregoing with respect to any matter within the actual knowledge without any additional investigation of Jason F.\nGriffith, Scot Ross, and Thomas Miller, or any of them, on or before the Effective Date.\nEmployee acknowledges and agrees that with the exception of his final wages, which will be paid in accordance\nwith the Corporation’s usual payroll practices and in accordance with state law, no other payments, commissions,\nbonuses, or benefits will be made by Corporation to Employee based on Employee’s employment by Corporation; and\nEmployee acknowledges that he has no entitlement to, or any right to make any claim for, any additional payments,\ncommissions, bonuses, or benefits by Corporation of any kind whatsoever, that are due based on Employee’s\nemployment by Corporation. Employee’s eligibility for coverage as an active employee under all employee benefit plans\nmaintained by Corporation terminate on the Resignation Date. Employee may purchase, if eligible, continuation of health\nbenefits coverage to the extent and for the period provided by law.\n8\nSection 4. Release of Claims by Corporation\nFor, and in consideration of the promises contained herein, the sufficiency, adequacy, and receipt of all of which\nconsideration is hereby expressly acknowledged, Corporation releases and discharges Employee from any and all\nobligations, claims, damages, demands, liabilities, equities, actions, causes of actions and legal theories of whatever\nkind, in law or in equity, in contract or tort or public policy, both known and unknown, suspected and unsuspected,\ndisclosed and undisclosed, actual and consequential, specific and general, however denominated, from the beginning of\ntime up to and including the time of the signing of this Agreement; whether for income from any source, declaratory or\ninjunctive relief, compensatory or punitive damages, wages, severance benefits, money, remuneration, emotional\ndistress, injunctive relief, costs, expenses, attorneys’ fees, or thing of any value whatsoever, by Corporation against\nEmployee, including but not limited to any claims arising out of or resulting from Employee’s employment with\nCorporation, and any other matter between Employee and Corporation. Provided, however, that Corporation is not\nreleasing any claim that relates to (1) its right to enforce this Agreement; (2) any rights or claims that arise after the\nexecution of this Agreement; or (3) any rights that it cannot lawfully release.\nSection 5. Noncompetition; Confidentiality; Non-Disparagement\nEmployee agrees that for a period of six (6) months, beginning with the execution of this Agreement (the\n“Covenant Period”), Employee will not, without the prior written consent of the Corporation in each instance: (1)\nparticipate or engage, directly or indirectly, in the ownership, management, operation, or control of, or work for as an\nemployee, independent contractor or consultant, or be connected as a partner, member, owner, investor, lender or\notherwise, with, or have any financial interest in, or aid or assist anyone else in the conduct of any of the businesses or\ncustomers described on Schedule I, attached hereto; or (2) directly or indirectly, employ, offer to employ, recruit, solicit,\nentice away, or in any other manner persuade or attempt to persuade any employee or independent contractor of the\nCorporation or any person who, at any time during the twelve (12) months preceding the date in question, was an\nemployee, independent contractor, patient or customer of the Corporation or the Business, to discontinue the relationship\nwith the Corporation.\nEmployee agrees that, for a period of two (2) years after execution of this Agreement, he will hold and keep\nconfidential all Confidential Information (as defined below) to which Employee, at any time shall have become informed,\nand that he will not, directly or indirectly, disclose any Confidential Information to any person, firm, corporation or entity,\nor use the same, or permit the same to be disclosed or used. “Confidential Information” as used herein means proprietary\ninformation directly relating to the Corporation or developed exclusively by the Corporation or developed for the use of\nthe Corporation or the Business and shall include, without limitation, the following types of information regarding the\nCorporation or the Business: corporate information, including business information, plans, strategies, tactics, or policies;\nmarketing information, including strategies, tactics, methods, customer and patient lists, prospects, and market research\ndata; financial data or forecasts; policies or procedures; know-how and ideas; operational information, including trade\nsecrets; technical information, including designs, drawings and specifications; and any proprietary compounding\ninformation. Confidential Information is limited to that information which is not generally known to the public (other than as\na result of unauthorized disclosure by Employee) or within the industry of which the businesses described in Schedule I\nare a part.\n9\nEmployee expressly represents and warrants that he shall not disclose the existence or terms of this Agreement\nto any third person without the prior express written consent of the Corporation. Notwithstanding the foregoing, Employee\nmay disclose the existence and/or terms of this Agreement: (1) to his attorneys or accountants, to the extent that such\ndisclosure is necessary in the preparation of his tax returns; (2) pursuant to a securities regulatory request or to comply\nwith a securities regulatory requirement or other legal obligation; (3) pursuant to a duly-issued court or arbitration order;\nand (4) if the existence and/or terms of this Agreement have previously become disclosed by Corporation in a public\nfiling. In the case of a disclosure required pursuant to a duly-issued court or arbitration order, Employee or his attorneys\nshall at the earliest opportunity notify Corporation of any request or order compelling disclosure of any of the terms of this\nAgreement so as to allow Corporation an opportunity to take appropriate action to protect their interests. In the case of a\ndisclosure required pursuant to a securities regulatory request, Employee or his attorneys shall at the earliest opportunity\nnotify Corporation of any request.\nSection 6. Reasonableness; Severability\nEmployee acknowledges and agrees that the restrictions placed on Employee and the rights and remedies\nconferred on the Corporation are reasonable in time, scope, and territory and are fully required to protect the legitimate\nbusiness interests of the Corporation without a disproportionate detriment to Employee. If any provision of this\nAgreement shall, for any reason, be adjudged by any court of competent jurisdiction to be invalid or unenforceable (i)\nsuch provision shall remain in force and effect to the maximum extent allowable, if any, (ii) such judgment shall not affect,\nimpair, or invalidate the remainder of this Agreement, but shall be confined in its operation to the provision of this\nAgreement directly involved in the controversy in which such judgment shall have been rendered, and (iii) the\nenforceability or validity of the remaining provisions of this Agreement shall not be affected thereby. If a court finds that\nany provision of this Agreement is invalid or unenforceable, but that modification of such provision will make it valid or\nenforceable, then such provision shall be deemed to be so modified.\nSection 7. Waiver of Age Discrimination Claims/Revocation Period/Effective Date\nEmployee specifically represents that he has read and understands this Agreement and Release, and has been\noffered a minimum of twenty-one (21) days to consider the Agreement before he has to execute it and understands fully\nthe final and binding effect of this Agreement. Employee further agrees that the only promises made to him to sign this\nAgreement are those stated in the Agreement and that he has signed this Agreement voluntarily with the full intent of\nreleasing the Corporation and Released Parties from any and all claims relating to or arising out of his employment with\nthe Corporation. Employee acknowledges that he was advised to consult an attorney, hired by him, to review the\nAgreement and provide advice about it, and he has done so to the extent he desires. In accordance with federal law, this\nAgreement may be revoked by Employee at any time within seven (7) days after the date the Agreement is signed by\nEmployee (the “Revocation Period”). If Employee wishes to revoke this Release, he must revoke it in writing delivered by\nhand delivery or by electronic mail prior to the end of the Revocation Period to Tom Miller, CEO,\ntmiller@questsolution.com; 870 Conger Street, Eugene, OR 97402, or the revocation will not be effective. If Employee\nrevokes his acceptance, none of the rights or obligations set forth in this Agreement will take effect. If Employee does not\nrevoke his acceptance, the Agreement shall become fully effective and enforceable immediately upon expiration of the\nRevocation Period (the “Effective Date”). Employee expressly understands that he is knowingly and voluntarily\nwaiving any claim for age discrimination that he may have under the Age Discrimination in Employment Act;\nFinally, Employee agrees and acknowledges that if he signs this Agreement before the expiration of said twenty-one (21)\nday period referred to hereinabove, that he has affirmatively waived such twenty-one (21) day minimum period, but will\nstill have the seven (7) calendar days within which to revoke this Agreement.\n10\nSection 8. Waiver\nNo consent or waiver, express or implied, by either party with respect to any breach or default by any other party\nin the performance of any other party’s obligations hereunder shall be deemed or construed to be a consent or waiver\nwith respect to any other breach or default in the performance of the same or any other obligation of such other party\nhereunder. A party’s failure to complain of any act or failure to act of any other party or to declare any other party in\ndefault, irrespective of how long such failure continues, shall not constitute a waiver by such party of any rights\nhereunder. The giving of consent by a party in any one instance shall not limit or waive the necessity of obtaining such\nparty’s consent in any future instance. Any consent required to be given hereunder shall be in writing unless otherwise\nprovided herein.\nSection 9. Taxes\nThe Corporation will be responsible for payroll deductions that it would normally be responsible for in connection\nwith a severance agreement to an employee. Employee agrees that he is ultimately and solely responsible for paying the\ncorrect amount of taxes he may owe on any amounts he receives in connection with this Agreement.\nSection 10. Miscellaneous\nThis Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of\nOregon (without regard to the conflicts of laws principles thereof). All sections and descriptive headings of sections and\nsubsections in this Agreement are inserted for convenience only, and shall not affect the construction or interpretation\nhereof. This Agreement may not be modified or amended or any term or provision hereof waived or discharged except in\nwriting signed by the party against whom such amendment, modification, waiver, or discharge is sought to be enforced.\nEach party shall bear its own attorney’s fees in connection with the preparation and review of this Agreement. All of the\nterms of this Agreement, whether so expressed or not, shall be binding upon the successors and assigns of the parties\nhereto and shall inure to the benefit of and be enforceable by the parties hereto and their respective successors and\nassigns. This Agreement and the payments required under Section 2 shall automatically cease upon the death of\nEmployee. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all\nof which together shall constitute one and the same instrument.\n11\nIN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year executed\nby Employee, below.\nQUEST SOLUTION, INC.\nPrinted Name: Thomas Miller\nSignature:\n/s/ Thomas Miller\nDate:\n08/27/2015\nKURT THOMET, AN INDIVIDUAL\nPrinted Name: Kurt Thomet\nSignature:\n/s/ Kurt Thomet\nDate:\n08/26/2015\n12
6dd1ed5dc49105cfbcd17b9a29bd6949.pdf	effective_date jurisdiction party term	EX-10.28 8 dex1028.htm CONFIDENTIALITY AND NON-COMPETE AGREEMENT\nExhibit 10.28\nCONFIDENTIALITY AND NON-COMPETE AGREEMENT\nThis Agreement, entered into this 1st day of February, 2004, is by and between Mannatech, Inc., a Texas corporation (the “Company”) and H.\nReg McDaniel (“HM”).\nWHEREAS, HM is a former employee of the Company;\nWHEREAS, HM and the Company entered into a Confidentiality and Non-Compete Agreement dated June 21, 2002 (the “Prior Agreement”)\nwhich expired on June 21, 2003; and\nWHEREAS, the Company wishes to provide certain compensation to HM in exchange for the obligations set forth in this Agreement;\nNOW, THEREFORE, in consideration of these recitals and the promises and agreements set forth in this Agreement, the Parties hereby agree\nas follows:\n1. Nondisclosure: For a period of five (5) years following the execution of this Agreement, HM shall keep and retain in confidence and\nshall not disclose, except as required by the Company or by law, to any person, firm or corporation, or use for HM’s own purposes, any\nConfidential Information that he may have learned or obtained from the Company, or which is new Confidential Information provided in\nconjunction with this Agreement.\na.\nConfidential Information: For the purposes of this section, such Confidential Information shall include, but is not limited to:\n(1) The Company’s operating procedures, processes, formulae, know-how, scientific, technical, or product information, whether\npatentable or not, which is of value to the Company and not generally known by the Company’s competitors;\n(2) All confidential information obtained from third parties and customers concerning their products, business, or the direct sale\nand/or network/multi-level marketing of dietary supplements;\n(3) Confidential business information of the Company, including, but not limited to, marketing and business plans, associates and\ndown line information, strategies, projections, business opportunities, client identities or lists, sales and cost information, internal\nfinancial statements or reports, profit, loss, or margin information, customer price information, compensation plans and strategies;\nand,\n(4) Confidential Information shall not include information which:\n(a) Was in the receiving party’s possession, free of any obligation of confidence, prior to receipt from the disclosing party, as\nproven by the receiving party;\n(b) Is already in the public domain at the time the disclosing party communicated it to the receiving party, or becomes available\nto the public through no breach of this Agreement;\n(c) Is received independently from a third-party free to disclose such information to the receiving party;\n(d) Is developed by the receiving party independently of and without reference to any of the Confidential Information, as\nproven by the receiving party;\n(e) Is disclosed by the receiving party to a third-party, with the express prior written consent of the disclosing party;\n1\n(f) Is disclosed by the receiving party in order to satisfy any legal requirement of any competent government body; provided,\nhowever, that immediately upon the receiving party’s receipt of any such request, the receiving party shall first advise the\ndisclosing party of same before making any disclosure to such body, so that the disclosing party may either interpose an\nobjection to such disclosure before such body, or take action to assure confidential handling of the Confidential Information\nby such body, or take action to protect the Confidential Information which the disclosing party deems appropriate under the\ncircumstances; or\n(g) Is disclosed in the course of a criminal or civil investigation of conduct which allegedly violates any code, statute,\nordinance, rule and/or regulation of the United States or of any state or political subdivision thereof.\nInevitable Use or Disclosure/Irreparable Harm: HM stipulates and agrees that, for a period of twelve (12) calendar months after the execution\nof this Agreement, if HM becomes a spokesperson for, employee, consultant, owner, partner, shareholder, officer, or director, of or shareholder\nof more than 5% of the outstanding stock of a publicly traded company for any business operation that is involved in the direct selling business\ngenerally and/or direct sales and/or network/multi-level marketing of dietary supplements and other similar products sold or distributed by the\nCompany or any of its subsidiaries or in any manufacturing or formulation of such products, (collectively the “Business”) such conduct would\nresult in the inevitable use and/or disclosure of Confidential Information acquired by or imparted to him. Based on this stipulation and\nagreement and for the consideration paid to him under the terms of this Agreement, HM is prohibited from becoming employed by, a\nconsultant for, an officer, director or shareholder of more than 5% of the outstanding stock of, any business operation which competes in the\nBusiness currently engaged in by Company or any of its subsidiaries or affiliates for a period of twelve (12) months after execution of this\nAgreement. The Company will have the right to seek any injunctive relief necessary to prevent such irreparable harm and disclosure.\n2. Non-Competition: In exchange for the mutual promises and obligations contained in this Agreement, and contemporaneous with its\nexecution, the Company promises to deliver to HM or permit HM to acquire, be exposed to, and/or have access to new material, data, or information\nof the Company and/or its customers or clients that is confidential, proprietary and/or a trade secret. This includes, but is not necessarily limited to,\nthe Confidential Information described on the attached Exhibit A, delivered or provided contemporaneously with the execution of this Agreement.\nBy signing this Agreement, HM acknowledges receipt of the Confidential Information described in Exhibit A.\na.\nIn consideration of the mutual promises contained in this Agreement, the sufficiency of which is acknowledged by the parties, HM\nagrees that for a period of twelve (12) calendar months after the execution of this Agreement, he will not, either as a spokesperson, sales\nrepresentative, or independent contractor for, employee, consultant, owner, partner, shareholder, officer, or director, of or shareholder of\nmore than 5% of the outstanding stock of a publicly traded company, for any business operation which competes in the business\ncurrently engaged in by Company or any of its subsidiaries or affiliates, directly or indirectly:\n(1) Sell, recommend, or promote dietary supplements of a competitor of the Company or become a spokesperson for, employee,\nconsultant, owner, partner, shareholder, officer, or director, of or shareholder of more than 5% of the outstanding stock of a\npublicly traded company for any business operation that is in the direct selling business generally, or in any business which\ncompetes in the business currently engaged in by Company or any of its subsidiaries or affiliates.\n(2) Solicit or attempt to solicit any employees, or Mannatech Associates with whom the Company has had any contract during the\nterm of this Agreement or for a period of 12 calendar months preceding the date of this Agreement or otherwise induce such\nCustomers to reduce, terminate, restrict or otherwise alter business relationships with the Company in any fashion;\n2\nNotwithstanding any provision of this Agreement, HM may speak at any trade, professional or industry association or scientific or educational\nmeeting (other than on behalf of a competitor), and may conduct scientific research or evaluations of drugs, dietary supplements or similar\nproducts without disclosing any Confidential Information, and may research and/or develop prescription and/or over the counter drugs.\n(c) In recognition of the broad geographic scope of the Company’s business operations throughout the entire United States, and the ease of\ncompeting with the Company, the restrictions on competition set forth herein are intended to cover those cities and states in the United\nStates of America and foreign countries in which the Company does business on the date of the execution of this Agreement.\n3. Payment for Restrictive Covenants: In consideration for HM’s compliance with the respective obligations under this Agreement, HM shall\nreceive a total fee in the amount of Twenty Five Thousand and no/100 Dollars ($25,000.00) once per month, during the term of this Agreement.\nPayments shall be on the last day of every month. The Company will not withhold or pay any amounts to any federal, state, or local authority with\nrespect to or on behalf of HM. HM thereafter shall be solely responsible for all of federal, state, and local taxes and reports.\n4. Independent Contractor: HM agrees that during the effective period of this Agreement, each will be an independent contractor for federal\nincome tax and all other purposes, and will, accordingly, file, remit and pay all required amounts attributable to compensation paid under the terms\nof this Agreement to any and all taxing authorities, as required. Moreover, as an independent contractor and consultant, there is no agency, employee,\npartnership, or joint venture relationship between the Parties and therefore, HM may not bind the Company in any manner nor enter into any\nagreement on the Company’s behalf. HM shall not represent himself to any person or entity as an employee, officer, agent, representative, official or\nowner (except as a Shareholder or Associate) of the Company.\n5. Authority: Each party hereto represents and warrants to the other that he has the authority to execute and deliver this Agreement and to\nperform hereunder.\n6. Entire Agreement: This Agreement represents the entire understanding of the Parties with regard to the matters addressed herein. Except as\notherwise contemplated hereby, this Agreement constitutes the entire agreement of the Parties, and supersedes all prior agreements and\nunderstandings (oral and written), between or among the Parties with respect to the subject matter hereof and that there are no other written or oral\nagreements between the parties, except the Independent Associates Agreement with respect to Mannatech distributor positions held by HM, jointly\nor individually.\n7. Applicable Law: This Agreement shall be construed in accordance with the laws of the State of Texas, without regard to the conflicts of\nlaws or principles of such state.\n8. Severability: If any provision or term of this Agreement is held to be illegal, invalid, or unenforceable, such provision or term shall be fully\nseverable; this Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised part of this\nAgreement; and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid, or\nunenforceable provision or by its severance from this Agreement. Furthermore, in lieu of each such illegal, invalid, or unenforceable provision or\nterm, there shall be added automatically as a part of this Agreement another provision or term as similar to the illegal, invalid, or unenforceable\nprovision as may be possible and that is legal, valid, and enforceable.\n9. Termination: Notwithstanding anything to the contrary in this Agreement, the Company may terminate this Agreement and all obligations of\nall Parties hereto, including, upon termination of this Agreement, the Company’s obligations to make any further monthly payments contemplated by\nthis Agreement in the event of HM breaches any of the terms of this Agreement, and the failure to cure such breach within 30 days following notice\nof such breach by the Company. HM may explain in writing his response to a written notice from the Company describing a claimed breach within\nten (10) business days after receipt of such notice from the Company. The decision to terminate this Agreement will be made by Mannatech’s Board\nof Directors in its sole and exclusive discretion.\n10. Non-Disparagement. HM further agrees to refrain from making disparaging comments about Mannatech, its executives, employees,\nIndependent Associates and/or its proprietary products in any manner during the term of this Agreement and after the Agreement terminates, for any\nreason. The Parties agree to act in a manner consistent with favorable advancement and promotion of the Company and its products. This covenant\nshall also survive the termination of this Agreement.\n3\n11. Disputes. In the event of a dispute between the Parties and before any legal action is commenced, the Parties agree that the complaining\nparty shall give specific and detailed notice to the other Party of the complaint, including the factual basis therefore. The Parties shall use their best\nefforts to resolve the complaint by face to face meeting conducted within 5 days of such notice of complaint. If the Parties cannot arrive at a\nmutually satisfactory solution to the complaint within 5 business days from the date of such notice of the complaint, the Parties shall attempt to\nresolve the complaint by non-binding mediation before a neutral mediator agreeable to the parties. The Parties shall use best efforts to schedule and\nconduct such mediation within 10 days after the date of the face to face meeting. The mediation shall take place at a neutral location in Dallas\nCounty, Texas.\n12. Attorneys Fees. In any suit to enforce any provisions of this Agreement, The prevailing party in such proceeding shall be entitled to record\nand have awarded its reasonable attorney’s fees, costs and expenses of litigation in addition to any other relief to which it may be entitled.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the 1st day of February, 2004.\n/s/ H. Reg. McDAniel M.D.\nH. REG MCDANIEL. M.D .\nMANNATECH, INC.:\nBy: /s/ Sam Caster\nSam Caster\nIts: Chairman and CEO\n4	EX-10.28 8 dex1028.htm CONFIDENTIALITY AND NON-COMPETE AGREEMENT\nExhibit 10.28\nCONFIDENTIALITY AND NON-COMPETE AGREEMENT\nThis Agreement, entered into this 1st day of February, 2004, is by and between Mannatech, Inc., a Texas corporation (the “Company”) and H.\nReg McDaniel (“HM”).\nWHEREAS, HM is a former employee of the Company;\nWHEREAS, HM and the Company entered into a Confidentiality and Non-Compete Agreement dated June 21, 2002 (the “Prior Agreement”)\nwhich expired on June 21, 2003; and\nWHEREAS, the Company wishes to provide certain compensation to HM in exchange for the obligations set forth in this Agreement;\nNOW, THEREFORE, in consideration of these recitals and the promises and agreements set forth in this Agreement, the Parties hereby agree\nas follows:\n1.  Nondisclosure: For a period of five (5) years following the execution of this Agreement, HM shall keep and retain in confidence and\nshall not disclose, except as required by the Company or by law, to any person, firm or corporation, or use for HM’s own purposes, any\nConfidential Information that he may have learned or obtained from the Company, or which is new Confidential Information provided in\nconjunction with this Agreement.\na.  Confidential Information: For the purposes of this section, such Confidential Information shall include, but is not limited to:\n(1)  The Company’s operating procedures, processes, formulae, know-how, scientific, technical, or product information, whether\npatentable or not, which is of value to the Company and not generally known by the Company’s competitors;\n(2)  All confidential information obtained from third parties and customers concerning their products, business, or the direct sale\nand/or network/multi-level marketing of dietary supplements;\n3) Confidential business information of the Company, including, but not limited to, marketing and business plans, associates and\ndown line information, strategies, projections, business opportunities, client identities or lists, sales and cost information, internal\nfinancial statements or reports, profit, loss, or margin information, customer price information, compensation plans and strategies;\nand,\n4) Confidential Information shall not include information which:\n() Was in the receiving party’s possession, free of any obligation of confidence, prior to receipt from the disclosing party, as\nproven by the receiving party;\n(b) Is already in the public domain at the time the disclosing party communicated it to the receiving party, or becomes available\nto the public through no breach of this Agreement;\n(c) Isreceived independently from a third-party free to disclose such information to the receiving party;\nd) Is developed by the receiving party independently of and without reference to any of the Confidential Information, as\nped Dby g party P y y\nproven by the receiving party;\n(e) Isdisclosed by the receiving party to a third-party, with the express prior written consent of the disclosing party;\n(f) Isdisclosed by the receiving party in order to satisfy any legal requirement of any competent government body; provided,\nhowever, that immediately upon the receiving party’s receipt of any such request, the receiving party shall first advise the\ndisclosing party of same before making any disclosure to such body, so that the disclosing party may either interpose an\nobjection to such disclosure before such body, or take action to assure confidential handling of the Confidential Information\nby such body, or take action to protect the Confidential Information which the disclosing party deems appropriate under the\ncircumstances; or\n(g) Isdisclosed in the course of a criminal or civil investigation of conduct which allegedly violates any code, statute,\nordinance, rule and/or regulation of the United States or of any state or political subdivision thereof.\nInevitable Use or Disclosure/Irreparable Harm: HM stipulates and agrees that, for a period of twelve (12) calendar months after the execution\nof this Agreement, if HM becomes a spokesperson for, employee, consultant, owner, partner, shareholder, officer, or director, of or shareholder\nof more than 5% of the outstanding stock of a publicly traded company for any business operation that is involved in the direct selling business\ngenerally and/or direct sales and/or network/multi-level marketing of dietary supplements and other similar products sold or distributed by the\nCompany or any of its subsidiaries or in any manufacturing or formulation of such products, (collectively the “Business”) such conduct would\nresult in the inevitable use and/or disclosure of Confidential Information acquired by or imparted to him. Based on this stipulation and\nagreement and for the consideration paid to him under the terms of this Agreement, HM is prohibited from becoming employed by, a\nconsultant for, an officer, director or shareholder of more than 5% of the outstanding stock of, any business operation which competes in the\nBusiness currently engaged in by Company or any of its subsidiaries or affiliates for a period of twelve (12) months after execution of this\nAgreement. The Company will have the right to seek any injunctive relief necessary to prevent such irreparable harm and disclosure.\n2. Non-Competition: In exchange for the mutual promises and obligations contained in this Agreement, and contemporaneous with its\nexecution, the Company promises to deliver to HM or permit HM to acquire, be exposed to, and/or have access to new material, data, or information\nof the Company and/or its customers or clients that is confidential, proprietary and/or a trade secret. This includes, but is not necessarily limited to,\nthe Confidential Information described on the attached Exhibit A, delivered or provided contemporaneously with the execution of this Agreement.\nBy signing this Agreement, HM acknowledges receipt of the Confidential Information described in Exhibit A.\n \na.  In consideration of the mutual promises contained in this Agreement, the sufficiency of which is acknowledged by the parties, HM\nagrees that for a period of twelve (12) calendar months after the execution of this Agreement, he will not, either as a spokesperson, sales\nrepresentative, or independent contractor for, employee, consultant, owner, partner, shareholder, officer, or director, of or shareholder of\nmore than 5% of the outstanding stock of a publicly traded company, for any business operation which competes in the business\ncurrently engaged in by Company or any of its subsidiaries or affiliates, directly or indirectly:\nD Sell, recommend, or promote dietary supplements of a competitor of the Company or become a spokesperson for, employee,\nconsultant, owner, partner, shareholder, officer, or director, of or shareholder of more than 5% of the outstanding stock of a\npublicly traded company for any business operation that is in the direct selling business generally, or in any business which\ncompetes in the business currently engaged in by Company or any of its subsidiaries or affiliates.\n) Solicit or attempt to solicit any employees, or Mannatech Associates with whom the Company has had any contract during the\nterm of this Agreement or for a period of 12 calendar months preceding the date of this Agreement or otherwise induce such\nCustomers to reduce, terminate, restrict or otherwise alter business relationships with the Company in any fashion;\n2\nNotwithstanding any provision of this Agreement, HM may speak at any trade, professional or industry association or scientific or educational\nmeeting (other than on behalf of a competitor), and may conduct scientific research or evaluations of drugs, dietary supplements or similar\nproducts without disclosing any Confidential Information, and may research and/or develop prescription and/or over the counter drugs.\n(c) Inrecognition of the broad geographic scope of the Company’s business operations throughout the entire United States, and the ease of\ncompeting with the Company, the restrictions on competition set forth herein are intended to cover those cities and states in the United\nStates of America and foreign countries in which the Company does business on the date of the execution of this Agreement.\n3. Payment for Restrictive Covenants: In consideration for HM’s compliance with the respective obligations under this Agreement, HM shall\nreceive a total fee in the amount of Twenty Five Thousand and no/100 Dollars ($25,000.00) once per month, during the term of this Agreement.\nPayments shall be on the last day of every month. The Company will not withhold or pay any amounts to any federal, state, or local authority with\nrespect to or on behalf of HM. HM thereafter shall be solely responsible for all of federal, state, and local taxes and reports.\n4. Independent Contractor: HM agrees that during the effective period of this Agreement, each will be an independent contractor for federal\nincome tax and all other purposes, and will, accordingly, file, remit and pay all required amounts attributable to compensation paid under the terms\nof this Agreement to any and all taxing authorities, as required. Moreover, as an independent contractor and consultant, there is no agency, employee,\npartnership, or joint venture relationship between the Parties and therefore, HM may not bind the Company in any manner nor enter into any\nagreement on the Company’s behalf. HM shall not represent himself to any person or entity as an employee, officer, agent, representative, official or\nowner (except as a Shareholder or Associate) of the Company.\n5. Authority: Each party hereto represents and warrants to the other that he has the authority to execute and deliver this Agreement and to\nperform hereunder.\n6. Entire Agreement: This Agreement represents the entire understanding of the Parties with regard to the matters addressed herein. Except as\notherwise contemplated hereby, this Agreement constitutes the entire agreement of the Parties, and supersedes all prior agreements and\nunderstandings (oral and written), between or among the Parties with respect to the subject matter hereof and that there are no other written or oral\nagreements between the parties, except the Independent Associates Agreement with respect to Mannatech distributor positions held by HM, jointly\nor individually.\n7. Applicable Law: This Agreement shall be construed in accordance with the laws of the State of Texas, without regard to the conflicts of\nlaws or principles of such state.\n8. Severability: If any provision or term of this Agreement is held to be illegal, invalid, or unenforceable, such provision or term shall be fully\nseverable; this Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised part of this\nAgreement; and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid, or\nunenforceable provision or by its severance from this Agreement. Furthermore, in lieu of each such illegal, invalid, or unenforceable provision or\nterm, there shall be added automatically as a part of this Agreement another provision or term as similar to the illegal, invalid, or unenforceable\nprovision as may be possible and that is legal, valid, and enforceable.\n9. Termination: Notwithstanding anything to the contrary in this Agreement, the Company may terminate this Agreement and all obligations of\nall Parties hereto, including, upon termination of this Agreement, the Company’s obligations to make any further monthly payments contemplated by\nthis Agreement in the event of HM breaches any of the terms of this Agreement, and the failure to cure such breach within 30 days following notice\nof such breach by the Company. HM may explain in writing his response to a written notice from the Company describing a claimed breach within\nten (10) business days after receipt of such notice from the Company. The decision to terminate this Agreement will be made by Mannatech’s Board\nof Directors in its sole and exclusive discretion.\n10. Non-Disparagement. HM further agrees to refrain from making disparaging comments about Mannatech, its executives, employees,\nIndependent Associates and/or its proprietary products in any manner during the term of this Agreement and after the Agreement terminates, for any\nreason. The Parties agree to act in a manner consistent with favorable advancement and promotion of the Company and its products. This covenant\nshall also survive the termination of this Agreement.\n11. Disputes. In the event of a dispute between the Parties and before any legal action is commenced, the Parties agree that the complaining\nparty shall give specific and detailed notice to the other Party of the complaint, including the factual basis therefore. The Parties shall use their best\nefforts to resolve the complaint by face to face meeting conducted within 5 days of such notice of complaint. If the Parties cannot arrive at a\nmutually satisfactory solution to the complaint within 5 business days from the date of such notice of the complaint, the Parties shall attempt to\nresolve the complaint by non-binding mediation before a neutral mediator agreeable to the parties. The Parties shall use best efforts to schedule and\nconduct such mediation within 10 days after the date of the face to face meeting. The mediation shall take place at a neutral location in Dallas\nCounty, Texas.\n12. Attorneys Fees. In any suit to enforce any provisions of this Agreement, The prevailing party in such proceeding shall be entitled to record\nand have awarded its reasonable attorney’s fees, costs and expenses of litigation in addition to any other relief to which it may be entitled.\n \nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the 1st day of February, 2004.\n/s/  H. Reg. McDAniel M.D.\nH. REG MCDANIEL. M.D.\nMANNATECH, INC.:\nBy: /s/ Sam Caster\nSam Caster\nIts: Chairman and CEO	EX-10.28 8 x1028.htm CONFIDENTIALITY AND NON-COMPETE AGREEMENT\nExhibit 10.28\nCONFIDENTIALITY AND NON-COMPETE AGREEMENT\nThis Agreement, entered into this 1st day of February, 2004, is by and between Mannatech, Inc., a Texas corporation (the "Company") and H.\nReg McDanie ("HM").\nWHEREAS, HM is a former employee of the Company;\nWHEREAS, HM and the Company entered into a Confidentiality and Non-Compete Agreement dated June 21, 2002 (the "Prior Agreement")\nwhich expired on June 21, 2003; and\nWHEREAS, the Company wishes to provide certain compensation to HM in exchange for the obligations set forth in this Agreement;\nNOW, THEREFORE, in consideration of these recitals and the promises and agreements set forth in this Agreement, the Parties hereby agree\nas follows:\n1.\nNondisclosure: For a period of five (5) years following the execution of this Agreement, HM shall keep and retain in confidence and\nshall not disclose, except as required by the Company or by law, to any person, firm or corporation, or use for HM's own purposes, any\nConfidential Information that he may have learned or obtained from the Company, or which is new Confidential Information provided in\nconjunction with this Agreement.\na.\nConfidential Information: For the purposes of this section, such Confidential Information shall include, but is not limited to:\n(1)\nThe Company's operating procedures, processes, formulae, know-how, scientific, technical, or product information, whether\npatentable or not, which is of value to the Company and not generally known by the Company's competitors;\n(2) All confidential information obtained from third parties and customers concerning their products, business, or the direct sale\nand/or network/multi-level marketing of dietary supplements;\n(3)\nConfidential business information of the Company, including, but not limited to, marketing and business plans, associates and\ndown line information, strategies, projections, business opportunities, client identities or lists, sales and cost information, internal\nfinancial statements or reports, profit, loss, or margin information, customer price information, compensation plans and strategies;\nand,\n(4)\nConfidential Information shall not include information which:\n(a) Was in the receiving party's possession, free of any obligation of confidence, prior to receipt from the disclosing party, as\nproven by the receiving party;\n(b) Is already in the public domain at the time the disclosing party communicated it to the receiving party, or becomes available\nto the public through no breach of this Agreement;\n(c)\nIs received independently from a third-party free to disclose such information to the receiving party;\n(d)\nIs developed by the receiving party independently of and without reference to any of the Confidential Information, as\nproven by the receiving party;\n(e) Is disclosed by the receiving party to a third-party, with the express prior written consent of the disclosing party;\n1\n(f)\nIs disclosed by the receiving party in order to satisfy any legal requirement of any competent government body; provided,\nhowever, that immediately upon the receiving party's receipt of any such request, the receiving party shall first advise the\ndisclosing party of same before making any disclosure to such body, so that the disclosing party may either interpose an\nobjection to such disclosure before such body, or take action to assure confidential handling of the Confidential Information\nby such body, or take action to protect the Confidential Information which the disclosing party deems appropriate under the\ncircumstances; or\n(g)\nIs disclosed in the course of a criminal or civil investigation of conduct which allegedly violates any code, statute,\nordinance, rule and/or regulation of the United States or of any state or political subdivision thereof.\nInevitable Use or Disclosure/Irreparable Harm: HM stipulates and agrees that, for a period of twelve (12) calendar months after the execution\nof this Agreement, if HM becomes a spokesperson for, employee, consultant, owner, partner, shareholder, officer, or director, of or shareholder\nof more than 5% of the outstanding stock of a publicly traded company for any business operation that is involved in the direct selling business\ngenerally and/or direct sales and/or network/multi-level marketing of dietary supplements and other similar products sold or distributed by the\nCompany or any of its subsidiaries or in any manufacturing or formulation of such products, (collectively the "Business") such conduct would\nresult in the inevitable use and/or disclosure of Confidential Information acquired by or imparted to him. Based on this stipulation and\nagreement and for the consideration paid to him under the terms of this Agreement, HM is prohibited from becoming employed by, a\nconsultant for, an officer, director or shareholder of more than 5% of the outstanding stock of, any business operation which competes in the\nBusiness currently engaged in by Company or any of its subsidiaries or affiliates for a period of twelve (12) months after execution of this\nAgreement. The Company will have the right to seek any injunctive relief necessary to prevent such irreparable harm and disclosure.\n2. Non-Competition: In exchange for the mutual promises and obligations contained in this Agreement, and contemporaneous with its\nexecution, the Company promises to deliver to HM or permit HM to acquire, be exposed to, and/or have access to new material, data, or information\nof the Company and/or its customers or clients that is confidential, proprietary and/or a trade secret. This includes, but is not necessarily limited to,\nthe Confidential Information described on the attached Exhibit A, delivered or provided contemporaneously with the execution of this Agreement.\nBy signing this Agreement, HM acknowledges receipt of the Confidential Information described in Exhibit A.\na.\nIn consideration of the mutual promises contained in this Agreement, the sufficiency of which is acknowledged by the parties, HM\nagrees that for a period of twelve (12) calendar months after the execution of this Agreement, he will not, either as a spokesperson, sales\nrepresentative, or independent contractor for, employee, consultant, owner, partner, shareholder, officer, or director, of or shareholder of\nmore than 5% of the outstanding stock of a publicly traded company, for any business operation which competes in the business\ncurrently engaged in by Company or any of its subsidiaries or affiliates, directly or indirectly:\n(1)\nSell, recommend, or promote dietary supplements of a competitor of the Company or become a spokesperson for, employee,\nconsultant, owner, partner, shareholder, officer, or director, of or shareholder of more than 5% of the outstanding stock of a\npublicly traded company for any business operation that is in the direct selling business generally, or in any business which\ncompetes in the business currently engaged in by Company or any of its subsidiaries or affiliates.\n(2)\nSolicit or attempt to solicit any employees, or Mannatech Associates with whom the Company has had any contract during the\nterm of this Agreement or for a period of 12 calendar months preceding the date of this Agreement or otherwise induce such\nCustomers to reduce, terminate, restrict or otherwise alter business relationships with the Company in any fashion;\n2\nNotwithstanding any provision of this Agreement, HM may speak at any trade, professional or industry association or scientific or educational\nmeeting (other than on behalf of a competitor), and may conduct scientific research or evaluations of drugs, dietary supplements or similar\nproducts without disclosing any Confidential Information, and may research and/or develop prescription and/or over the counter drugs.\n(c) In recognition of the broad geographic scope of the Company's business operations throughout the entire United States, and the ease\nof\ncompeting with the Company, the restrictions on competition set forth herein are intended to cover those cities and states in the United\nStates of America and foreign countries in which the Company does business on the date of the execution of this Agreement.\n3. Payment for Restrictive Covenants: In consideration for HM's compliance with the respective obligations under this Agreement, HM shall\nreceive a total fee in the amount of Twenty Five Thousand and no/100 Dollars ($25,000.00) once per month, during the term of this Agreement.\nPayments shall be on the last day of every month. The Company will not withhold or pay any amounts to any federal, state, or local authority with\nrespect to or on behalf of HM. HM thereafter shall be solely responsible for all of federal, state, and local taxes and reports.\n4. Independent Contractor: HM agrees that during the effective period of this Agreement, each will be an independent contractor for federal\nincome tax and all other purposes, and will, accordingly, file, remit and pay all required amounts attributable to compensation paid under the terms\nof this Agreement to any and all taxing authorities, as required. Moreover, as an independent contractor and consultant, there is no agency, employee,\npartnership, or joint venture relationship between the Parties and therefore, HM may not bind the Company in any manner nor enter into any\nagreement on the Company's behalf. HM shall not represent himself to any person or entity as an employee, officer, agent, representative, official\nor\nowner (except as a Shareholder or Associate) of the Company.\n5. Authority: Each party hereto represents and warrants to the other that he has the authority to execute and deliver this Agreement and to\nperform hereunder.\n6. Entire Agreement: This Agreement represents the entire understanding of the Parties with regard to the matters addressed herein. Except as\notherwise contemplated hereby, this Agreement constitutes the entire agreement of the Parties, and supersedes all prior agreements and\nunderstandings (oral and written), between or among the Parties with respect to the subject matter hereof and that there are no other written or oral\nagreements between the parties, except the Independent Associates Agreement with respect to Mannatech distributor positions held by HM, jointly\nor individually.\n7. Applicable Law: This Agreement shall be construed in accordance with the laws of the State of Texas, without regard to the conflicts of\nlaws or principles of such state.\n8. Severability.: If any provision or term of this Agreement is held to be illegal, invalid, or unenforceable, such provision or term shall be fully\nseverable;\nthis\nAgreement\nshall\nbe\nconstrued\nand\nenforced\nas\nif\nsuch\nillegal,\ninvalid,\nor\nunenforceable\nprovision\nhad\nnever\ncomprised\npart\nof\nthis\nAgreement; and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid, or\nunenforceable provision or by its severance from this Agreement. Furthermore, in lieu of each such illegal, invalid, or unenforceable provision or\nterm, there shall be added automatically as a part of this Agreement another provision or term as similar to the illegal, invalid, or unenforceable\nprovision as may be possible and that is legal, valid, and enforceable.\n9. Termination: Notwithstanding anything to the contrary in this Agreement, the Company may terminate this Agreement and all obligations of\nall Parties hereto, including, upon termination of this Agreement, the Company's obligations to make any further monthly payments contemplated by\nthis Agreement in the event of HM breaches any of the terms of this Agreement, and the failure to cure such breach within 30 days following notice\nof\nsuch\nbreach by the Company. HM may explain in writing his response to a written notice from the Company describing a claimed breach within\nten (10) business days after receipt of such notice from the Company. The decision to terminate this Agreement will be made by Mannatech's Board\nof Directors in its sole and exclusive discretion.\n10. Non-Disparagement. HM further agrees to refrain from making disparaging comments about Mannatech, its executives, employees,\nIndependent Associates and/or its proprietary products in any manner during the term of this Agreement and after the Agreement terminates, for any\nreason. The Parties agree to act in a manner consistent with favorable advancement and promotion of the Company and its products. This covenant\nshall also survive the termination of this Agreement.\n3\n11. Disputes. In the event of a dispute between the Parties and before any legal action is commenced, the Parties agree that the complaining\nparty shall give specific and detailed notice to the other Party of the complaint, including the factual basis therefore. The Parties shall use their best\nefforts to resolve the complaint by face to face meeting conducted within 5 days of such notice of complaint. If the Parties cannot arrive at a\nmutually satisfactory solution to the complaint within 5 business days from the date of such notice of the complaint, the Parties shall attempt to\nresolve the complaint by non-binding mediation before a neutral mediator agreeable to the parties. The Parties shall use best efforts to schedule and\nconduct such mediation within 10 days after the date of the face to face meeting. The mediation shall take place at a neutral location in Dallas\nCounty, Texas.\n12. Attorneys Fees. In any suit to enforce any provisions of this Agreement, The prevailing party in such proceeding shall be entitled to record\nand have awarded its reasonable attorney's fees, costs and expenses of litigation in addition to any other relief to which it may be entitled.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the 1st day of February, 2004.\n/s/ H. Reg. McDAniel M.D.\nH. REG MCDANIEL. M.D.\nMANNATECH, INC.:\nBy: /s/ Sam Caster\nSam Caster\nIts: Chairman and CEO\n4	EX-10.28 8 dex1028.htm CONFIDENTIALITY AND NON-COMPETE AGREEMENT\nExhibit 10.28\nCONFIDENTIALITY AND NON-COMPETE AGREEMENT\nThis Agreement, entered into this 1st day of February, 2004, is by and between Mannatech, Inc., a Texas corporation (the “Company”) and H.\nReg McDaniel (“HM”).\nWHEREAS, HM is a former employee of the Company;\nWHEREAS, HM and the Company entered into a Confidentiality and Non-Compete Agreement dated June 21, 2002 (the “Prior Agreement”)\nwhich expired on June 21, 2003; and\nWHEREAS, the Company wishes to provide certain compensation to HM in exchange for the obligations set forth in this Agreement;\nNOW, THEREFORE, in consideration of these recitals and the promises and agreements set forth in this Agreement, the Parties hereby agree\nas follows:\n1. Nondisclosure: For a period of five (5) years following the execution of this Agreement, HM shall keep and retain in confidence and\nshall not disclose, except as required by the Company or by law, to any person, firm or corporation, or use for HM’s own purposes, any\nConfidential Information that he may have learned or obtained from the Company, or which is new Confidential Information provided in\nconjunction with this Agreement.\na.\nConfidential Information: For the purposes of this section, such Confidential Information shall include, but is not limited to:\n(1) The Company’s operating procedures, processes, formulae, know-how, scientific, technical, or product information, whether\npatentable or not, which is of value to the Company and not generally known by the Company’s competitors;\n(2) All confidential information obtained from third parties and customers concerning their products, business, or the direct sale\nand/or network/multi-level marketing of dietary supplements;\n(3) Confidential business information of the Company, including, but not limited to, marketing and business plans, associates and\ndown line information, strategies, projections, business opportunities, client identities or lists, sales and cost information, internal\nfinancial statements or reports, profit, loss, or margin information, customer price information, compensation plans and strategies;\nand,\n(4) Confidential Information shall not include information which:\n(a) Was in the receiving party’s possession, free of any obligation of confidence, prior to receipt from the disclosing party, as\nproven by the receiving party;\n(b) Is already in the public domain at the time the disclosing party communicated it to the receiving party, or becomes available\nto the public through no breach of this Agreement;\n(c) Is received independently from a third-party free to disclose such information to the receiving party;\n(d) Is developed by the receiving party independently of and without reference to any of the Confidential Information, as\nproven by the receiving party;\n(e) Is disclosed by the receiving party to a third-party, with the express prior written consent of the disclosing party;\n1\n(f) Is disclosed by the receiving party in order to satisfy any legal requirement of any competent government body; provided,\nhowever, that immediately upon the receiving party’s receipt of any such request, the receiving party shall first advise the\ndisclosing party of same before making any disclosure to such body, so that the disclosing party may either interpose an\nobjection to such disclosure before such body, or take action to assure confidential handling of the Confidential Information\nby such body, or take action to protect the Confidential Information which the disclosing party deems appropriate under the\ncircumstances; or\n(g) Is disclosed in the course of a criminal or civil investigation of conduct which allegedly violates any code, statute,\nordinance, rule and/or regulation of the United States or of any state or political subdivision thereof.\nInevitable Use or Disclosure/Irreparable Harm: HM stipulates and agrees that, for a period of twelve (12) calendar months after the execution\nof this Agreement, if HM becomes a spokesperson for, employee, consultant, owner, partner, shareholder, officer, or director, of or shareholder\nof more than 5% of the outstanding stock of a publicly traded company for any business operation that is involved in the direct selling business\ngenerally and/or direct sales and/or network/multi-level marketing of dietary supplements and other similar products sold or distributed by the\nCompany or any of its subsidiaries or in any manufacturing or formulation of such products, (collectively the “Business”) such conduct would\nresult in the inevitable use and/or disclosure of Confidential Information acquired by or imparted to him. Based on this stipulation and\nagreement and for the consideration paid to him under the terms of this Agreement, HM is prohibited from becoming employed by, a\nconsultant for, an officer, director or shareholder of more than 5% of the outstanding stock of, any business operation which competes in the\nBusiness currently engaged in by Company or any of its subsidiaries or affiliates for a period of twelve (12) months after execution of this\nAgreement. The Company will have the right to seek any injunctive relief necessary to prevent such irreparable harm and disclosure.\n2. Non-Competition: In exchange for the mutual promises and obligations contained in this Agreement, and contemporaneous with its\nexecution, the Company promises to deliver to HM or permit HM to acquire, be exposed to, and/or have access to new material, data, or information\nof the Company and/or its customers or clients that is confidential, proprietary and/or a trade secret. This includes, but is not necessarily limited to,\nthe Confidential Information described on the attached Exhibit A, delivered or provided contemporaneously with the execution of this Agreement.\nBy signing this Agreement, HM acknowledges receipt of the Confidential Information described in Exhibit A.\na.\nIn consideration of the mutual promises contained in this Agreement, the sufficiency of which is acknowledged by the parties, HM\nagrees that for a period of twelve (12) calendar months after the execution of this Agreement, he will not, either as a spokesperson, sales\nrepresentative, or independent contractor for, employee, consultant, owner, partner, shareholder, officer, or director, of or shareholder of\nmore than 5% of the outstanding stock of a publicly traded company, for any business operation which competes in the business\ncurrently engaged in by Company or any of its subsidiaries or affiliates, directly or indirectly:\n(1) Sell, recommend, or promote dietary supplements of a competitor of the Company or become a spokesperson for, employee,\nconsultant, owner, partner, shareholder, officer, or director, of or shareholder of more than 5% of the outstanding stock of a\npublicly traded company for any business operation that is in the direct selling business generally, or in any business which\ncompetes in the business currently engaged in by Company or any of its subsidiaries or affiliates.\n(2) Solicit or attempt to solicit any employees, or Mannatech Associates with whom the Company has had any contract during the\nterm of this Agreement or for a period of 12 calendar months preceding the date of this Agreement or otherwise induce such\nCustomers to reduce, terminate, restrict or otherwise alter business relationships with the Company in any fashion;\n2\nNotwithstanding any provision of this Agreement, HM may speak at any trade, professional or industry association or scientific or educational\nmeeting (other than on behalf of a competitor), and may conduct scientific research or evaluations of drugs, dietary supplements or similar\nproducts without disclosing any Confidential Information, and may research and/or develop prescription and/or over the counter drugs.\n(c) In recognition of the broad geographic scope of the Company’s business operations throughout the entire United States, and the ease of\ncompeting with the Company, the restrictions on competition set forth herein are intended to cover those cities and states in the United\nStates of America and foreign countries in which the Company does business on the date of the execution of this Agreement.\n3. Payment for Restrictive Covenants: In consideration for HM’s compliance with the respective obligations under this Agreement, HM shall\nreceive a total fee in the amount of Twenty Five Thousand and no/100 Dollars ($25,000.00) once per month, during the term of this Agreement.\nPayments shall be on the last day of every month. The Company will not withhold or pay any amounts to any federal, state, or local authority with\nrespect to or on behalf of HM. HM thereafter shall be solely responsible for all of federal, state, and local taxes and reports.\n4. Independent Contractor: HM agrees that during the effective period of this Agreement, each will be an independent contractor for federal\nincome tax and all other purposes, and will, accordingly, file, remit and pay all required amounts attributable to compensation paid under the terms\nof this Agreement to any and all taxing authorities, as required. Moreover, as an independent contractor and consultant, there is no agency, employee,\npartnership, or joint venture relationship between the Parties and therefore, HM may not bind the Company in any manner nor enter into any\nagreement on the Company’s behalf. HM shall not represent himself to any person or entity as an employee, officer, agent, representative, official or\nowner (except as a Shareholder or Associate) of the Company.\n5. Authority: Each party hereto represents and warrants to the other that he has the authority to execute and deliver this Agreement and to\nperform hereunder.\n6. Entire Agreement: This Agreement represents the entire understanding of the Parties with regard to the matters addressed herein. Except as\notherwise contemplated hereby, this Agreement constitutes the entire agreement of the Parties, and supersedes all prior agreements and\nunderstandings (oral and written), between or among the Parties with respect to the subject matter hereof and that there are no other written or oral\nagreements between the parties, except the Independent Associates Agreement with respect to Mannatech distributor positions held by HM, jointly\nor individually.\n7. Applicable Law: This Agreement shall be construed in accordance with the laws of the State of Texas, without regard to the conflicts of\nlaws or principles of such state.\n8. Severability: If any provision or term of this Agreement is held to be illegal, invalid, or unenforceable, such provision or term shall be fully\nseverable; this Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised part of this\nAgreement; and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid, or\nunenforceable provision or by its severance from this Agreement. Furthermore, in lieu of each such illegal, invalid, or unenforceable provision or\nterm, there shall be added automatically as a part of this Agreement another provision or term as similar to the illegal, invalid, or unenforceable\nprovision as may be possible and that is legal, valid, and enforceable.\n9. Termination: Notwithstanding anything to the contrary in this Agreement, the Company may terminate this Agreement and all obligations of\nall Parties hereto, including, upon termination of this Agreement, the Company’s obligations to make any further monthly payments contemplated by\nthis Agreement in the event of HM breaches any of the terms of this Agreement, and the failure to cure such breach within 30 days following notice\nof such breach by the Company. HM may explain in writing his response to a written notice from the Company describing a claimed breach within\nten (10) business days after receipt of such notice from the Company. The decision to terminate this Agreement will be made by Mannatech’s Board\nof Directors in its sole and exclusive discretion.\n10. Non-Disparagement. HM further agrees to refrain from making disparaging comments about Mannatech, its executives, employees,\nIndependent Associates and/or its proprietary products in any manner during the term of this Agreement and after the Agreement terminates, for any\nreason. The Parties agree to act in a manner consistent with favorable advancement and promotion of the Company and its products. This covenant\nshall also survive the termination of this Agreement.\n3\n11. Disputes. In the event of a dispute between the Parties and before any legal action is commenced, the Parties agree that the complaining\nparty shall give specific and detailed notice to the other Party of the complaint, including the factual basis therefore. The Parties shall use their best\nefforts to resolve the complaint by face to face meeting conducted within 5 days of such notice of complaint. If the Parties cannot arrive at a\nmutually satisfactory solution to the complaint within 5 business days from the date of such notice of the complaint, the Parties shall attempt to\nresolve the complaint by non-binding mediation before a neutral mediator agreeable to the parties. The Parties shall use best efforts to schedule and\nconduct such mediation within 10 days after the date of the face to face meeting. The mediation shall take place at a neutral location in Dallas\nCounty, Texas.\n12. Attorneys Fees. In any suit to enforce any provisions of this Agreement, The prevailing party in such proceeding shall be entitled to record\nand have awarded its reasonable attorney’s fees, costs and expenses of litigation in addition to any other relief to which it may be entitled.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the 1st day of February, 2004.\n/s/ H. Reg. McDAniel M.D.\nH. REG MCDANIEL. M.D .\nMANNATECH, INC.:\nBy: /s/ Sam Caster\nSam Caster\nIts: Chairman and CEO\n4
6defa90b54cb93c0672489fd94d9e1b3.pdf	effective_date jurisdiction party	EX-10 .1 2 a16-1187_1ex10d1.htm EX-10.1\nAttachment B\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS AGREEMENT is entered into between THADDEUS DUPPER and EVOLVING SYSTEMS, INC. as of the Effective Date noted on\nthe signature page.\nRECITALS\nThe parties contemplate entering into a business relationship (“Purpose”) during which one party (“Disclosing Party”) may disclose to the other party (“Receiving Party”) certain confidential or proprietary information; and\nWith respect to the information exchanged between the parties, the parties agree as follows:\n1.\nDefinition of Confidential Information. “Confidential Information” means information, including, but not be limited\nto, performance, sales, financial, contractual and special marketing information, ideas, technical data, and concepts originated by the\nDisclosing Party and furnished to a Receiving Party, whether orally, in writing or any other medium, which information the\nDisclosing Party desires to protect against unrestricted disclosure or competitive use which (i) has not previously been published or\notherwise disclosed to the general public, (ii) has not previously been made available without restriction to the Receiving Party or\nothers, (iii) is marked as, indicated as, or could be reasonably construed to be confidential or proprietary.\n2.\nObligation to Maintain Confidentiality and Limitation on Use. The Receiving Party will:\na.\nhold the Confidential Information in confidence, exercising a degree of care not less than the care used by such party to\nprotect its own proprietary or confidential information that it does not wish to disclose, and in no event less than a reasonable degree\nof care;\nb.\nrestrict disclosure of the Confidential Information solely to those Representatives with a need to know and not disclose it to\nany other person;\nc.\nadvise those Representatives of their obligations with respect to the Confidential Information; and\nd.\nuse the Confidential Information only in connection with the Purpose and reproduce such Confidential Information only to\nthe extent necessary for such Purpose.\nThe term “Representatives” means the Affiliates of either party and the respective directors, officers, employees, attorneys, consultants and other agents and advisors of either party or of the Affiliates of either party. An “Affiliate”\nmeans any entity that directly or indirectly controls, is controlled by or is under common control with a party, whether such control arises through the ownership of voting stock, by contract, or otherwise. Each party will be responsible for\nany breach of this Agreement by its respective Representatives and will take all reasonably necessary measures to restrain its Representatives from unauthorized disclosure or use of Confidential Information.\n3.\nExclusions. The Receiving Party will have no obligation to preserve the confidential nature of any information which:\na.\nwas previously known to such party free of any obligation to keep it confidential; or\nb.\nis or becomes publicly available by means other than unauthorized disclosure; or\nc.\nis developed by or on behalf of such party independent of any Confidential Information furnished under this Agreement; or\nd.\nis received from a third party whose disclosure does not violate any confidentiality obligation.\n4.\nMandatory Disclosure Exemption. In the event the Receiving Party or its employees need (for securities law purposes) to\nmake disclosures of Confidential Information or become legally compelled (by oral questions, interrogatories, requests for\ninformation or documents, subpoenas, civil investigative demands or otherwise) to disclose any Confidential Information of the\nDisclosing Party, the Receiving Party will provide the Disclosing Party with prompt written notice so that (a) the Disclosing Party\ncan work with the Receiving Party to limit the disclosure to the greatest extent possible consistent with legal obligations (it being\nunderstood that disclosure of the name of the other party will never be made without that party’s prior written consent) or (b) the\nDisclosing Party may seek a protective order or other appropriate remedy, or if the Disclosing Party so directs, the Receiving Party\nwill exercise its reasonable best efforts to obtain a protective order or other appropriate remedy at the Disclosing Party’s reasonable\nexpense. Failing the entry of a protective order or other appropriate remedy or receipt of a waiver hereunder, the Receiving Party will\nfurnish only that portion of the Confidential Information which it is advised by its counsel is legally required to be furnished and will\nexercise its reasonable best efforts to obtain reliable assurance that confidential treatment will be accorded such Confidential\nInformation.\n4\n5.\nNo Rights Granted. All Confidential Information and all tangible forms of such information received under this\nAgreement by the Receiving Party will remain the property of Disclosing Party. Nothing contained in this Agreement will be\nconstrued as (i) requiring Disclosing Party to disclose, or Receiving Party to accept, any particular information, or (ii) granting to\nReceiving Party a license, either express or implied, under any patent, copyright, trade secret, or other intellectual property rights now\nor hereafter owned, obtained or licensable by Disclosing Party. Neither this Agreement, nor the disclosure of Confidential\nInformation under this Agreement will constitute or imply any promise or any commitment by either party with respect to any other\npresent or future transaction. Each party agrees that it will not modify or create other works with the other party’s Confidential\nInformation, or reverse engineer or decompile or disassemble any software programs contained therein.\n6.\nNo Warranty. All Confidential Information is provided “As Is”, without warranty of any kind. In particular, the parties do\nnot warrant, assure or guarantee that the information disclosed constitutes a non-infringement of other third party trademarks, patents,\ncopyrights, mask works or any other intellectual property right in the information disclosed. Receiving Party agrees that Disclosing\nParty will not have liability or responsibility for any errors or omissions in, or any business decisions made by Receiving Party in\nreliance on, any Confidential Information disclosed by Disclosing Party under this Agreement.\n7.\nRemedies. Each party agrees that the Disclosing Party would be irreparably injured by a breach of this Agreement by the\nReceiving Party or its Representatives and that the Disclosing Party will be entitled to equitable relief, including injunctive relief and\nspecific performance, in the event of any breach of the provisions of this Agreement. Such remedies will not be deemed to be the\nexclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity.\n8.\nCompliance with Export Regulations. Each Party agrees that it will not export or re-export outside the United States,\neither directly or indirectly, any Confidential Information without first obtaining the prior written approval of the Disclosing Party,\nwhich may entail obtaining clearance or licensing by a governmental authority.\n9.\nTerm. The term of this Agreement will commence on the Effective Date and will continue for the term of the Consulting\nServices Agreement entered into between the parties (the “Term”). A party’s obligations to protect Confidential Information which it\nhas received during the Term will survive for a period of three (3) years after the date of disclosure of such Confidential Information;\nprovided, however, that a party’s obligation to protect any Confidential Information which is a trade secret under applicable law will\ncontinue as long as such Confidential Information remains a trade secret under applicable law.\n10.\nGoverning Law. This Agreement will be governed by and construed under the laws of the State of Colorado. Each party\nirrevocably consents to the jurisdiction and venue of the state and federal courts located in Denver, Colorado.\n11.\nEntire Agreement. This Agreement constitutes the entire understanding between the parties with respect to Confidential\nInformation provided in connection with the Purpose and supersedes all prior agreements between the parties with respect to\nConfidential Information provided in connection with Purpose. No amendment or modification of this Agreement will be valid or\nbinding on the parties unless made in writing and executed on behalf of each party by its duly authorized representative. If any\nprovision of this Agreement is found to be unenforceable, the remainder will be enforced as fully as possible and the unenforceable\nprovision will be deemed to be modified to the limited extent required to permit its enforcement in a manner most closely\napproximating the intention of the parties as expressed in this Agreement.\n12.\nNotices. All notices and other communications provided for or permitted under this Agreement will be in writing, made by\nhand delivery; first class mail, postage prepaid, return receipt requested; or by reliable overnight courier addressed to a party at the\naddress indicated in this Agreement. Notices will be deemed delivered when received by the party being notified, or, if sent via first\nclass mail as above, will be deemed delivered four days after such remittance.\n13.\nAssignment. Neither this Agreement nor any of the rights and obligations created in this Agreement may be assigned, in\nwhole or in part, by either party, without the prior written consent of the other party. Any assignment contrary to the foregoing is\nvoid. This Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and\nassigns.\n5\n14.\nAdministrative Ease. The parties agree that this Agreement may be executed in counterparts, and that such counterpart\nsignatures will be considered effective if provided by PDF or facsimile transmission.\nEach party has caused this Agreement to be executed on its behalf as of the 1st day of January, 2016 (“Effective Date”).\nTHADDEUS DUPPER\n/s/ THADDEUS DUPPER\nEVOLVING SYSTEMS, INC .\nBy: /s/ THOMAS THEKKETHALA\nThomas Thekkethala\nTitle: CEO\n6	EX-10.l 2 a16-1187_1eX10d1.htm EX-10.l\nAttachment B\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS AGREEMENTiS entered into between THADDEUS DUPPER and EVOLVING SYSTEMS, INC. as of the Effective Date noted on\nthe signature page.\nRE C ITA L S\nThe parties contemplate entering into a business relationship ("Purpose") during which one party ("Disclosing Party”) may disclose to the other party ("Receiving Party”) certain confidential or proprietary information; and\nWith respect to the information exchanged between the parties, the parties agree as follows:\n1. Definition of C onfidential Information. ”C onfidential Information” means information, including, but not be limited\nto, performance, sales, financial, contractual and special marketing information, ideas, technical data, and concepts originated by the\nDisclosing Party and furnished to a Receiving Party, whether orally, in writing or any other medium, which information the\nDisclosing Party desires to protect against unrestricted disclosure or competitive use which (i) has not previously been published or\notherwise disclosed to the general public, (ii) has not previously been made available without restriction to the Receiving Party or\nothers, (iii) is marked as, indicated as, or could be reasonably construed to be confidential or proprietary.\n2. Obligation to Maintain Confidentiality and Limitation on Use. The Receiving Party will:\na. hold the Confidential Information in confidence, exercising a degree of care not less than the care used by such party to\nprotect its own proprietary or confidential information that it does not wish to disclose, and in no event less than a reasonable degree\nof care;\nb. restrict disclosure of the Confidential Information solely to those Representatives with a need to know and not disclose it to\nany other person;\nor advise those Representatives of their obligations with respect to the Confidential Information; and\nd. use the Confidential Information only in connection with the Purpose and reproduce such Confidential Information only to\nthe extent necessary for such Purpose.\nThe term "Represenmtives" means the Affiliates of either party and the respective directors, officers, employees, attorneys, consultants and other agents and advisors of either party or of the Affiliates of either party. An "Affiliate"\nmeans any entity that directly or indirectly controls, is contiolled by or is under common control with a party, whether such control arises through the ownership of voting stock, by contract, or otherwise. Each party will be responsible for\nany breach of this Agreement by its respective Representatives and will take all reasonably necessary measures to restiain its Representatives from unauthorized disclosure or use of Confidential Information.\n3. Exclusions. The Receiving Party will have no obligation to preserve the confidential nature of any information which:\na. was previously known to such party free of any obligation to keep it confidential; or\nb. is or becomes publicly available by means other than unauthorized disclosure; or\nc. is developed by or on behalf of such party independent of any Confidential Information furnished under this Agreement; or\nd. is received from a third party whose disclosure does not violate any confidentiality obligation.\n4. Mandatory Disclosure Exemption. In the event the Receiving Party or its employees need (for securities law purposes) to\nmake disclosures of Confidential Information or become legally compelled (by oral questions, interrogatories, requests for\ninformation or documents, subpoenas, civil investigative demands or otherwise) to disclose any Confidential Information of the\nDisclosing Party, the Receiving Party will provide the Disclosing Party with prompt written notice so that (a) the Disclosing Party\ncan work with the Receiving Party to limit the disclosure to the greatest extent possible consistent with legal obligations (it being\nunderstood that disclosure of the name of the other party will never be made without that party’ s prior written consent) or (b) the\nDisclosing Party may seek a protective order or other appropriate remedy, or if the Disclosing Party so directs, the Receiving Party\nwill exercise its reasonable best efforts to obtain a protective order or other appropriate remedy at the Disclosing Party’ s reasonable\nexpense. Failing the entry of a protective order or other appropriate remedy or receipt of a waiver hereunder, the Receiving Party will\nfurnish only that portion of the Confidential Information which it is advised by its counsel is legally required to be furnished and will\nexercise its reasonable best efforts to obtain reliable assurance that confidential treatment will be accorded such Confidential\nInformation.\n \n5. No Rights G ranted. All Confidential Information and all tangible forms of such information received under this\nAgreement by the Receiving Party will remain the property of Disclosing Party. Nothing contained in this Agreement will be\nconstrued as (i) requiring Disclosing Party to disclose, or Receiving Party to accept, any particular information, or (ii) granting to\nReceiving Party a license, either express or implied, under any patent, copyright, trade secret, or other intellectual property rights now\nor hereafter owned, obtained or licensable by Disclosing Party. Neither this Agreement, nor the disclosure of Confidential\nInformation under this Agreement will constitute or imply any promise or any commitment by either party with respect to any other\npresent or future transaction. Each party agrees that it will not modify or create other works with the other party’ s Confidential\nInformation, or reverse engineer or decompile or disassemble any software programs contained therein.\na. No Warranty. All Confidential Information is provided ”As Is", without warranty of any kind. In particular, the parties do\nnot warrant, assure or guarantee that the information disclosed constitutes a non-infringement of other third party trademarks, patents,\ncopyrights, mask works or any other intellectual property right in the information disclosed. Receiving Party agrees that Disclosing\nParty will not have liability or responsibility for any errors or omissions in, or any business decisions made by Receiving Party in\nreliance on, any Confidential Information disclosed by Disclosing Party under this Agreement.\n7. Remedies. Each party agrees that the Disclosing Party would be irreparably injured by a breach of this Agreement by the\nReceiving Party or its Representatives and that the Disclosing Party will be entitled to equitable relief, including injunctive relief and\nspecific performance, in the event of any breach of the provisions of this Agreement. Such remedies will not be deemed to be the\nexclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity.\n8. Compliance with Export Regulations. Each Party agrees that it will not export or reexport outside the United States,\neither directly or indirectly, any Confidential Information without first obtaining the prior written approval of the Disclosing Party,\nwhich may entail obtaining clearance or licensing by a governmental authority.\n9. Term. The term of this Agreement will commence on the Effective Date and will continue for the term of the Consulting\nServices Agreement entered into between the parties (the ”Term"). A party’ s obligations to protect Confidential Information which it\nhas received during the Term will survive for a period of three (3) years after the date of disclosure of such Confidential Information;\nprovided, however, that a party’ s obligation to protect any Confidential Information which is a trade secret under applicable law will\ncontinue as long as such Confidential Information remains a trade secret under applicable law.\n10. G overning Law. This Agreement will be governed by and construed under the laws of the State of Colorado. Each party\nirrevocably consents to the jurisdiction and venue of the state and federal courts located in Denver, Colorado.\n11. Entire Agreement. This A greement constitutes the entire understanding between the parties with respect to Confidential\nInformation provided in connection with the Purpose and supersedes all prior agreements between the parties with respect to\nConfidential Information provided in connection with Purpose. No amendment or modification of this Agreement will be valid or\nbinding on the parties unless made in writing and executed on behalf of each party by its duly authorized representative. If any\nprovision of this Agreement is found to be unenforceable, the remainder will be enforced as fully as possible and the unenforceable\nprovision will be deemed to be modified to the limited extent required to permit its enforcement in a manner most closely\napproximating the intention of the parties as expressed in this Agreement.\n12. Notices. All notices and other communications provided for or permitted under this Agreement will be in writing, made by\nhand delivery; first class mail, postage prepaid, return receipt requested; or by reliable overnight courier addressed to a party at the\naddress indicated in this Agreement. Notices will be deemed delivered when received by the party being notified, or, if sent via first\nclass mail as above, will be deemed delivered four days after such remittance.\n13. Assignment. Neither this Agreement nor any of the rights and obligations created in this Agreement may be assigned, in\nwhole or in part, by either party, without the prior written consent of the other party. Any assignment contrary to the foregoing is\nvoid. This Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and\nassigns.\n \n14. Administrative Ease. The parties agree that this Agreement may be executed in counterparts, and that such counterpart\nsignatures will be considered effective if provided by PDF or facsimile transmission.\nEach party has caused this Agreement to be executed on its behalf as of the lst day Of J anuaIy , 2 016 (”E ffective Date" ) .\nTHADDEUS DUPPER\n/S/THADDEUS DUPPER\nEVOLVING SYSTEMS, INC.\nBy: /S/ THOMAS THEKKETHALA\nomas ER Re 5 a\nTitle: CEO	EX-10.1 2a16-1187 lex10d1.htm EX-10.1\nAttachment B\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS\nAGREEMENT is entered into between THADDEUS DUPPER and EVOLVING SY STEMS, INC. as of the Effective Date noted\non\nthe signature page.\nRECITALS\nThe parties contemplate entering into a business relationship "Purpose" during which one party ("Disclosing Party") may disclose to the other party ("Receiving Party") certain confidential or proprietary information; and\nWith respect to the information exchanged between the parties, the parties agree as follows:\n1.\nDefinition of Confidential Information. Confidential Information" means information, including, but not be limited\nto, performance, sales, financial, contractual and special marketing information, ideas, technical data, and concepts originated by the\nDisclosing Party and furnished to a Receiving Party, whether orally, in writing or any other medium, which information the\nDisclosing Party desires to protect against unrestricted disclosure or competitive use which (i) has not previously been published or\notherwise disclosed to the general public, (ii) has not previously been made available without restriction to the Receiving Party or\nothers, (iii) is marked as, indicated as, or could be reasonably construed to be confidential or proprietary.\n2.\nObligation to Maintain Confidentiality and Limitation on Use. The Receiving Party will:\na.\nhold the Confidential Information in confidence, exercising a degree of care not less than the care used by such party to\nprotect its own proprietary or confidential information that it does not wish to disclose, and in no event less than a reasonable degree\nof care;\nb.\nrestrict disclosure of the Confidential Information solely to those Representatives with a need to know and not disclose it to\nany other person;\nc.\nadvise those Representatives of their obligations with respect to the Confidential Information; and\nd.\nuse the Confidential Information only in connection with the Purpose and reproduce such Confidential Information only to\nthe extent necessary for such Purpose.\nThe term "Representatives" means the Affiliates of either party and the respective directors, officers, employees, attorneys, consultants and other agents and advisors of either party or of the Affiliates of either party. An Affiliate"\nmeans any entity that directly or indirectly controls, is controlled by or is under common control with a party, whether such control arises through the ownership of voting stock by contract, or otherwise. Each party will be responsible\nfor\nany breach of this Agreement by its respective Representatives and will take all reasonably necessary measures to restrain its Representatives from unauthorized disclosure or use of Confidential Inforation.\n3.\nExclusions. The Receiving Party will have no obligation to preserve the confidential nature of any information which:\nwas previously known to such party free of any obligation to keep it confidential; or\nb.\nis or becomes publicly available by means other than unauthorized disclosure; or\nis developed by or on behalf of such party independent of any Confidentia Information furnished under this A greement; or\nd.\nis received from a third party whose disclosure does not violate any confidentiality obligation.\n4.\nMandatory Disclosure Exemption. In the event the Receiving Party or its employees need (for securities law purposes) to\nmake disclosures of Confidential Information or become legally compelled (by oral questions, interrogatories, requests for\ninformation or documents, subpoenas, civil investigative demands or otherwise) to disclose any Confidential Information of the\nDisclosing Party, the Receiving Party will provide the Disclosing Party with prompt written notice so that (a) the Disclosing Party\ncan work with the Receiving Party to limit the disclosure to the greatest extent possible consistent with legal obligations (it being\nunderstood that disclosure of the name of the other party will never be made without that party's prior written consent) or (b) the\nDisclosing Party may seek a protective order or other appropriate remedy, or if the Disclosing Party so directs, the Receiving Party\nwill exercise its reasonable best efforts to obtain a protective order or other appropriate remedy at the Disclosing Party's reasonable\nexpense. Failing the entry of a protective order or other appropriate remedy or receipt of a waiver hereunder, the Receiving Party will\nfurnish only that portion of the Confidential Information which it is advised by its counsel is legally required to be furnished and will\nexercise its reasonable best efforts to obtain reliable assurance that confidentia treatment will be accorded such Confidential\nInformation.\n4\n5.\nNo Rights G ranted. All Confidentia Information and all tangible forms of such information received under this\nA greement by the Receiving Party will remain the property of Disclosing Party. Nothing contained in this A greement will be\nconstrued as (i) requiring Disclosing Party to disclose, or Receiving Party to accept, any particular information, or (ii) granting to\nReceiving Party a license, either express or implied, under any patent, copyright, trade secret, or other intellectual property rights now\nor hereafter owned, obtained or licensable by isclosing Party Neither this A greement, nor the disclosure of Confidentia\nInformation under this A greement will constitute or imply any promise or any commitment by either party with respect to any other\npresent or future transaction. Each party agrees that it will not modify or create other works with the other party's Confidential\nInformation, or reverse engineer or decompile or disassemble any software programs contained therein.\n6.\nNo Warranty. All Confidential Information is provided "As Is", without warranty of any kind. In particular, the parties do\nnot warrant, assure or guarantee that the information disclosed constitutes a non-infringement of other third party trademarks, patents,\ncopyrights, mask works or any other intellectual property right in the information disclosed. Receiving Party agrees that Disclosing\nParty will not have liability or responsibility for any errors or omissions in, or any business decisions made by Receiving Party in\nreliance on, any Confidential Information disclosed by Disclosing Party under this A greement.\n7.\nRemedies. Each party agrees that the Disclosing Party would be irreparably injured by a breach of this A greement by the\nReceiving Party or its Representatives and that the Disclosing Party will be entitled to equitable relief including injunctive relief and\nspecific performance, in the event of any breach of the provisions of this greement. Such remedies will not be deemed to be the\nexclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity.\n8.\nCompliance with Export Regulations. Each Party agrees that it will not export or re-export outside the United States,\neither directly or indirectly, any Confidential Information without first obtaining the prior written approval of the Disclosing Party,\nwhich may entail obtaining clearance or licensing by a governmental authority.\n9.\nTerm. The term of this A greement will commence on the Effective Date and will continue for the term of the Consulting\nServices greement entered into between the parties (the "Term"). A party's obligations to protect Confidential Information which it\nhas received during the Term will survive for a period of three (3) years after the date of disclosure of such Confidential Information;\nprovided, however, that a party's obligation to protect any Confidential Information which is a trade secret under applicable law will\ncontinue as long as such Confidential Information remains a trade secret under applicable law.\n10.\nGoverning Law. This A greement will be governed by and construed under the laws of the State of Colorado. Each party\nirrevocably consents to the jurisdiction and venue of the state and federal courts located in Denver, Colorado.\n11.\nEntire Agreement. This A greement constitutes the entire understanding between the parties with respect to Confidential\nInformation provided in connection with the Purpose and supersedes all prior agreements between the parties with respect to\nConfidential Information provided in connection with Purpose. No amendment or modification of this greement will be valid or\nbinding on the parties unless made in writing and executed on behalf of each party by its duly authorized representative If any\nprovision of this A greement is found to be unenforceable, the remainder will be enforced as fully as possible and the unenforceable\nprovision will be deemed to be modified to the limited extent required to permit its enforcement in a manner most closely\napproximating the intention of the parties as expressed in this greement.\n12.\nNotices. All notices and other communications provided for or permitted under this A greement will be in writing, made by\nhand delivery; first class mail, postage prepaid, return receipt requested; or by reliable overnight courier addressed to a party at the\naddress indicated in this Agreement. Notices will be deemed delivered when received by the party being notified, or, if sent via first\nclass mail as above, will be deemed delivered four days after such remittance.\n13.\nAssignment. Neither this A greement nor any of the rights and obligations created in this Agreement may be assigned, in\nwhole or in part, by either party, without the prior written consent of the other party Any assignment contrary to the foregoing is\nvoid. This A greement will be binding upon and inure to the benefit of the parties and their respective permitted successors and\nassigns.\n5\n14.\nAdministrative Ease. The parties agree that this A greement may be executed in counterparts, and that such counterpart\nsignatures will be considered effective if provided by PDF or facsimile transmission.\nEach party has caused this Agreement to be executed on its behalf as of the\n1st day of January, 2016 ("Effective Date").\nTHADDEUS DUPPER\nS/THADDEUS DUPPER\nEVOLVING SY STEMS INC.\nBy:\n/s/ THOMAS THEKKETHALA\nIhomas Ihekkethala\nTitle: CEO\n6	EX-10 .1 2 a16-1187_1ex10d1.htm EX-10.1\nAttachment B\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS AGREEMENT is entered into between THADDEUS DUPPER and EVOLVING SYSTEMS, INC. as of the Effective Date noted on\nthe signature page.\nRECITALS\nThe parties contemplate entering into a business relationship (“Purpose”) during which one party (“Disclosing Party”) may disclose to the other party (“Receiving Party”) certain confidential or proprietary information; and\nWith respect to the information exchanged between the parties, the parties agree as follows:\n1.\nDefinition of Confidential Information. “Confidential Information” means information, including, but not be limited\nto, performance, sales, financial, contractual and special marketing information, ideas, technical data, and concepts originated by the\nDisclosing Party and furnished to a Receiving Party, whether orally, in writing or any other medium, which information the\nDisclosing Party desires to protect against unrestricted disclosure or competitive use which (i) has not previously been published or\notherwise disclosed to the general public, (ii) has not previously been made available without restriction to the Receiving Party or\nothers, (iii) is marked as, indicated as, or could be reasonably construed to be confidential or proprietary.\n2.\nObligation to Maintain Confidentiality and Limitation on Use. The Receiving Party will:\na.\nhold the Confidential Information in confidence, exercising a degree of care not less than the care used by such party to\nprotect its own proprietary or confidential information that it does not wish to disclose, and in no event less than a reasonable degree\nof care;\nb.\nrestrict disclosure of the Confidential Information solely to those Representatives with a need to know and not disclose it to\nany other person;\nc.\nadvise those Representatives of their obligations with respect to the Confidential Information; and\nd.\nuse the Confidential Information only in connection with the Purpose and reproduce such Confidential Information only to\nthe extent necessary for such Purpose.\nThe term “Representatives” means the Affiliates of either party and the respective directors, officers, employees, attorneys, consultants and other agents and advisors of either party or of the Affiliates of either party. An “Affiliate”\nmeans any entity that directly or indirectly controls, is controlled by or is under common control with a party, whether such control arises through the ownership of voting stock, by contract, or otherwise. Each party will be responsible for\nany breach of this Agreement by its respective Representatives and will take all reasonably necessary measures to restrain its Representatives from unauthorized disclosure or use of Confidential Information.\n3.\nExclusions. The Receiving Party will have no obligation to preserve the confidential nature of any information which:\na.\nwas previously known to such party free of any obligation to keep it confidential; or\nb.\nis or becomes publicly available by means other than unauthorized disclosure; or\nc.\nis developed by or on behalf of such party independent of any Confidential Information furnished under this Agreement; or\nd.\nis received from a third party whose disclosure does not violate any confidentiality obligation.\n4.\nMandatory Disclosure Exemption. In the event the Receiving Party or its employees need (for securities law purposes) to\nmake disclosures of Confidential Information or become legally compelled (by oral questions, interrogatories, requests for\ninformation or documents, subpoenas, civil investigative demands or otherwise) to disclose any Confidential Information of the\nDisclosing Party, the Receiving Party will provide the Disclosing Party with prompt written notice so that (a) the Disclosing Party\ncan work with the Receiving Party to limit the disclosure to the greatest extent possible consistent with legal obligations (it being\nunderstood that disclosure of the name of the other party will never be made without that party’s prior written consent) or (b) the\nDisclosing Party may seek a protective order or other appropriate remedy, or if the Disclosing Party so directs, the Receiving Party\nwill exercise its reasonable best efforts to obtain a protective order or other appropriate remedy at the Disclosing Party’s reasonable\nexpense. Failing the entry of a protective order or other appropriate remedy or receipt of a waiver hereunder, the Receiving Party will\nfurnish only that portion of the Confidential Information which it is advised by its counsel is legally required to be furnished and will\nexercise its reasonable best efforts to obtain reliable assurance that confidential treatment will be accorded such Confidential\nInformation.\n4\n5.\nNo Rights Granted. All Confidential Information and all tangible forms of such information received under this\nAgreement by the Receiving Party will remain the property of Disclosing Party. Nothing contained in this Agreement will be\nconstrued as (i) requiring Disclosing Party to disclose, or Receiving Party to accept, any particular information, or (ii) granting to\nReceiving Party a license, either express or implied, under any patent, copyright, trade secret, or other intellectual property rights now\nor hereafter owned, obtained or licensable by Disclosing Party. Neither this Agreement, nor the disclosure of Confidential\nInformation under this Agreement will constitute or imply any promise or any commitment by either party with respect to any other\npresent or future transaction. Each party agrees that it will not modify or create other works with the other party’s Confidential\nInformation, or reverse engineer or decompile or disassemble any software programs contained therein.\n6.\nNo Warranty. All Confidential Information is provided “As Is”, without warranty of any kind. In particular, the parties do\nnot warrant, assure or guarantee that the information disclosed constitutes a non-infringement of other third party trademarks, patents,\ncopyrights, mask works or any other intellectual property right in the information disclosed. Receiving Party agrees that Disclosing\nParty will not have liability or responsibility for any errors or omissions in, or any business decisions made by Receiving Party in\nreliance on, any Confidential Information disclosed by Disclosing Party under this Agreement.\n7.\nRemedies. Each party agrees that the Disclosing Party would be irreparably injured by a breach of this Agreement by the\nReceiving Party or its Representatives and that the Disclosing Party will be entitled to equitable relief, including injunctive relief and\nspecific performance, in the event of any breach of the provisions of this Agreement. Such remedies will not be deemed to be the\nexclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity.\n8.\nCompliance with Export Regulations. Each Party agrees that it will not export or re-export outside the United States,\neither directly or indirectly, any Confidential Information without first obtaining the prior written approval of the Disclosing Party,\nwhich may entail obtaining clearance or licensing by a governmental authority.\n9.\nTerm. The term of this Agreement will commence on the Effective Date and will continue for the term of the Consulting\nServices Agreement entered into between the parties (the “Term”). A party’s obligations to protect Confidential Information which it\nhas received during the Term will survive for a period of three (3) years after the date of disclosure of such Confidential Information;\nprovided, however, that a party’s obligation to protect any Confidential Information which is a trade secret under applicable law will\ncontinue as long as such Confidential Information remains a trade secret under applicable law.\n10.\nGoverning Law. This Agreement will be governed by and construed under the laws of the State of Colorado. Each party\nirrevocably consents to the jurisdiction and venue of the state and federal courts located in Denver, Colorado.\n11.\nEntire Agreement. This Agreement constitutes the entire understanding between the parties with respect to Confidential\nInformation provided in connection with the Purpose and supersedes all prior agreements between the parties with respect to\nConfidential Information provided in connection with Purpose. No amendment or modification of this Agreement will be valid or\nbinding on the parties unless made in writing and executed on behalf of each party by its duly authorized representative. If any\nprovision of this Agreement is found to be unenforceable, the remainder will be enforced as fully as possible and the unenforceable\nprovision will be deemed to be modified to the limited extent required to permit its enforcement in a manner most closely\napproximating the intention of the parties as expressed in this Agreement.\n12.\nNotices. All notices and other communications provided for or permitted under this Agreement will be in writing, made by\nhand delivery; first class mail, postage prepaid, return receipt requested; or by reliable overnight courier addressed to a party at the\naddress indicated in this Agreement. Notices will be deemed delivered when received by the party being notified, or, if sent via first\nclass mail as above, will be deemed delivered four days after such remittance.\n13.\nAssignment. Neither this Agreement nor any of the rights and obligations created in this Agreement may be assigned, in\nwhole or in part, by either party, without the prior written consent of the other party. Any assignment contrary to the foregoing is\nvoid. This Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and\nassigns.\n5\n14.\nAdministrative Ease. The parties agree that this Agreement may be executed in counterparts, and that such counterpart\nsignatures will be considered effective if provided by PDF or facsimile transmission.\nEach party has caused this Agreement to be executed on its behalf as of the 1st day of January, 2016 (“Effective Date”).\nTHADDEUS DUPPER\n/s/ THADDEUS DUPPER\nEVOLVING SYSTEMS, INC .\nBy: /s/ THOMAS THEKKETHALA\nThomas Thekkethala\nTitle: CEO\n6
7104ac1e62f026d1659baf8edb59cef2.pdf	effective_date jurisdiction party term	Exhibit 99.3/A\nCONFIDENTIALITY/STANDSTILL AGREEMENT\nTHIS AGREEMENT is dated as of the 26th day of September, 2007\nAMONG:\nSWANSI HOLDINGS CORP., a Panama corporation and having an office for business located at Nerine\nFiduciaire S.A., Rue des Terreaux-du-Temple 4, Case postale 5023, CH - 1211 Geneva 11, Switzerland\n(“Swansi”);\nAND:\nZULU ENERGY CORP., a Colorado corporation having an office for business located at 2610– 1066 West\nHastings Street, Vancouver, BC V6E 3X2 (“Zulu”)\nWHEREAS Swansi and Zulu are willing to enter into discussions regarding a possible acquisition by Zulu of\nshares of Nyati Resources Botswana (PTY) Limited, a Botswana corporation (“Nyati Botswana”) from Swansi\n(the “Acquisition”).\nNOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the\nexchange of Confidential Information (as defined herein) between Swansi and Zulu as may be reasonably\nrequested from time to time and other good and valuable consideration, the receipt and sufficiency of which is\nhereby acknowledged, the parties hereto hereby agree as follows:\nARTICLE 1\nCONFIDENTIALITY\nConfidential Information\n1.1\nFor purposes of this Agreement, the term confidential information (“Confidential Information”) shall\nmean all financial and other nonpublic information, together with notes, analyses, compilations, studies or\nother documents prepared or provided by the disclosing party in connection with the evaluation of the\nAcquisition. Confidential Information shall also include proprietary information concerning the respective\nbusinesses, operations and assets of the parties, including, without limitation, trade secrets, techniques, models,\ndata, documentation, code, research, development, processes, procedures, business strategy, marketing\ntimetables, pricing policies, financial information and other information of a similar nature, whether or not\nreduced to writing or other tangible form. Confidential Information shall not include (a) information known to\na receiving party (the “Receiving Party”) or Representatives prior to obtaining the same from the disclosing\nparty (the “Disclosing Party”); (b) information in the public domain at the time of disclosure by Disclosing\nParty; or (c) information approved for release by written authorization of an authorized officer of the\nDisclosing Party.\nRepresentatives\n1.2\nFor purposes of this Agreement, the term representatives (“Representatives”) shall mean each party,\ntheir directors, officers and employees, as well as their counsel, accountants, consultants and other\nrepresentatives in connection with the transactions contemplated hereby provided that such persons are bound\nby confidentiality agreements no less stringent than those in this Agreement.\nUse of Confidential Information\n1.3\nEach party will use the Confidential Information it receives solely for the purpose of evaluating the\nAcquisition and not for any other purpose and, except to the extent permitted by paragraph 1.5 hereof, will\nkeep such Confidential Information strictly confidential, provided, however, that Confidential Information may\nbe disclosed to such Representatives as needed to know such information for the purpose of evaluating and\nnegotiating the terms of the Acquisition and for no other purpose.\nNon-Disclosure\n1.4\nExcept to the extent permitted by paragraph 1.5 hereof, for a period of twelve (12) months following\nthe conclusion of any discussions or negotiations relating to the Acquisition, the parties hereto will direct their\nrespective Representatives to not disclose to any person or entity that the Confidential Information has been\nmade available, that discussions or negotiations are taking place or have recently taken place concerning the\nAcquisition, or any of the terms, conditions or other facts with respect to any other possible transaction\nbetween the parties hereto.\nProperty Rights Maintained\n1.5\nConfidential Information disclosed shall be and shall remain the property of the Disclosing Party. In the\nevent that the parties hereto do not proceed with the Acquisition by October 31, 2007, and, in any event, within\nfive (5) days after being so requested by either party, both parties shall return or destroy all documents\nfurnished by the other. Any oral Confidential Information shall remain subject to the confidentiality obligations\nset forth in this Agreement.\nARTICLE 2\nSTANDSTILL\nZulu and its principal shareholders agree that until October 31, 2007, or such shorter period if either\nparty notifies the other that it no longer wishes to proceed with the Acquisition (“Term of this Agreement”),\nthat they will not, directly or indirectly, solicit, initiate or encourage submission of proposals of offers from any\nthird party relating to any acquisition, purchase or option to purchase an equity interest in Zulu, or any merger,\nconsolidation or business combination with Zulu or the sale of substantially all of the assets of Zulu. In the\nevent Zulu receives any solicitation, proposal or offer with regard to the foregoing, Zulu shall provide written\nnotice to Swansi within two business days of its receipt by Zulu or its principals.\nARTICLE 3\nNON-CIRCUMVENTION\nSuppliers and Customers\n3.1\nThe parties hereto agree that they shall not solicit business from any supplier, customer, client or\ncontact of any other party hereto for the purpose of circumventing the relationship between such party and such\nsupplier, customer, client and/or competing with such party during the Term of this Agreement without prior\nwritten consent.\nMaterial Inducement\n3.2\nEach party hereto acknowledges and agrees that the other parties hereto have a material interest in\npreserving the relationships they have developed with their customers and employees against impairment by\ncompetitive activities of other persons and entities. Accordingly, each party agrees that the restrictions and\ncovenants contained in this Agreement are of the essence of this Agreement and constitute a material\ninducement by the each party to the other to disclose the Confidential Information.\nARTICLE 4\nINJUNCTION\nThe parties hereto agree that money damages would not be a sufficient remedy for any breach of this\nAgreement and that in addition to other remedies, each offended party shall be entitled to specific performance\nand injunctive or other equitable relief, and in such circumstances the offending party agrees to waive posting\nof a bond to secure any such equitable relief hereunder.\nARTICLE 5\nDEFINITIVE AGREEMENTS; DISCLOSURE\nThe parties hereto will use their best efforts to enter into a definitive acquisition agreement and any\nother documents that may be necessary in order to consummate the Acquisition by October 31, 2007. If a\ndefinitive agreement has not been entered into by such date, then this Agreement will have no further force or\neffect except for Articles 1, 3, 4, 5 and 6 hereof.\nARTICLE 6\nMISCELLANEOUS\nSuccessors and Assigns; Waiver; Governing Law\n6.1\nThis Agreement shall be binding upon the parties hereto and their respective successors and assigns and\nshall inure to the benefit of the parties hereto and their respective successors and assigns. If any provision of\nthis Agreement is not enforceable in whole or in part, the remaining provisions of this Agreement shall not be\naffected. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the\nexercise of any other right, power or privilege hereunder. This Agreement shall be governed by, construed and\nenforced under the laws of the State of Colorado.\nNotices\n6.2\nAny notice or communication required or permitted hereunder must be in writing and sent by (a)\npersonal delivery, (b) expedited delivery service with proof of delivery, or (c) registered or certified mail,\npostage prepaid, to the addresses stated above or to such other address or to the attention of such other person\nas the applicable party hereafter designates by written notice sent in accordance herewith. Any such notice or\ncommunication will be deemed to have been given either at the time of personal delivery or, in the case of\ndelivery service or mail, as of the date of first attempted delivery at the address and in the manner provided\nherein.\nCounterparts\n6.3\nThis Agreement may be executed in one or more counterparts, each of which shall be deemed an\noriginal, but all of which together shall constitute one and the same instrument. This Agreement may be\nexecuted and delivered by facsimile transmission.\nIN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed by\nthemselves or their duly authorized officers, as appropriate, as of the date first written above.\nSWANSI HOLDINGS CORP.\ns/s: Gareth Corbin\nGareth Corbin, Director\nZULU ENERGY CORP.\ns/s Paul Stroud\nPaul Stroud, President	Exhibit 99.3/A\nCONFIDENTIALITY/STANDSTILL AG REEMENT\nTHIS AGREEMENT is dated as of the 26th day of September, 2007\nAMONG:\nSWANSI HOLDING S CORP., a Panama corporation and having an office for business located at Nerine\nFiduciaire S.A., Rue des Terreaux-du—Temple 4, Case postale 5023, CH - 1211 Geneva 11, Switzerland\n(”Swansi”);\nAND:\nZULU ENERGY CORP., a Colorado corporation having an office for business located at 2610— 1066 West\nHastings Street, Vancouver, BC V 6E 3X 2 (”Zulu”)\nWHEREAS Swansi and Zulu are willing to enter into discussions regarding a possible acquisition by Zulu of\nshares of Nyati Resources Botswana (PTY) Limited, a Botswana corporation (”Nyati Botswana”) from Swansi\n(the ”A cquisition").\nNOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the\nexchange of Confidential Information (as defined herein) between Swansi and Zulu as may be reasonably\nrequested from time to time and other good and valuable consideration, the receipt and sufficiency of which is\nhereby acknowledged, the parties hereto hereby agree as follows:\nARTICLE 1\nCONFIDENTIALITY\nC onfidential Information\n1.1\nFor purposes of this Agreement, the term confidential information (”Confidential Information”) shall\nmean all financial and other nonpublic information, together with notes, analyses, compilations, studies or\nother documents prepared or provided by the disclosing party in connection with the evaluation of the\nAcquisition. Confidential Information shall also include proprietary information concerning the respective\nbusinesses, operations and assets of the parties, including, without limitation, trade secrets, techniques, models,\ndata, documentation, code, research, development, processes, procedures, business strategy, marketing\ntimetables, pricing policies, financial information and other information of a similar nature, whether or not\nreduced to writing or other tangible form. Confidential Information shall not include (a) infonnaiion known to\na receiving party (the ”Receiving Party") or Representatives prior to obtaining the same from the disclosing\nparty (the ”Disclosing Party"); (b) information in the public domain at the time of disclosure by Disclosing\nParty; or (c) information approved for release by written authorization of an authorized officer of the\nDisclosing Party.\nRepresentatives\n1.2\nFor purposes of this Agreement, the term representatives (”Representatives”) shall mean each party,\ntheir directors, officers and employees, as well as their counsel, accountants, consultants and other\nrepresentatives in connection with the transactions contemplated hereby provided that such persons are bound\nby confidentiality agreements no less stringent than those in this Agreement.\nUse of C onfidential Information\n1.3\nEach party will use the Confidential Information it receives solely for the purpose of evaluating the\nAcquisition and not for any other purpose and, except to the extent permitted by paragraph 1.5 hereof, will\nkeep such Confidential Information strictly confidential, provided, however, that Confidential Information may\nbe disclosed to such Representatives as needed to know such information for the purpose of evaluating and\nnegotiating the terms of the Acquisition and for no other purpose.\nNon-Disclosure\n1.4\nExcept to the extent permitted by paragraph 1.5 hereof, for a period of twelve (12) months following\nthe conclusion of any discussions or negotiations relating to the Acquisition, the parties hereto will direct their\nrespective Representatives to not disclose to any person or entity that the Confidential Information has been\nmade available, that discussions or negotiations are taking place or have recently taken place concerning the\nAcquisition, or any of the terms, conditions or other facts with respect to any other possible transaction\nbetween the parties hereto.\nProperty Rights Maintained\n1.5\nConfidential Information disclosed shall be and shall remain the property of the Disclosing Party. In the\nevent that the parties hereto do not proceed with the Acquisition by October 31, 2007, and, in any event, within\nfive (5) days after being so requested by either party, both parties shall return or destroy all documents\nfurnished by the other. Any oral Confidential Information shall remain subject to the confidentiality obligations\nset forth in this Agreement.\nARTICLE 2\nSTANDSTILL\nZulu and its principal shareholders agree that until October 31, 2007, or such shorter period if either\nparty notifies the other that it no longer wishes to proceed with the Acquisition (”Term of this Agreement”),\nthat they will not, directly or indirectly, solicit, initiate or encourage submission of proposals of offers from any\nthird party relating to any acquisition, purchase or option to purchase an equity interest in Zulu, or any merger,\nconsolidation or business combination with Zulu or the sale of substantially all of the assets of Zulu. In the\nevent Zulu receives any solicitation, proposal or offer with regard to the foregoing, Zulu shall provide written\nnotice to Swansi within two business days of its receipt by Zulu or its principals.\nARTICLE 3\nNON-CIRCUMVENTION\nSuppliers and Customers\n3.1\nThe parties hereto agree that they shall not solicit business from any supplier, customer, client or\ncontact of any other party hereto for the purpose of circumventing the relationship between such party and such\nsupplier, customer, client and/or competing with such party during the Term of this Agreement without prior\nwritten consent.\nMaterial Inducement\n3.2\nEach party hereto acknowledges and agrees that the other parties hereto have a material interest in\npreserving the relationships they have developed with their customers and employees against impairment by\ncompetitive activities of other persons and entities. Accordingly, each party agrees that the restrictions and\ncovenants contained in this Agreement are of the essence of this Agreement and constitute a material\ninducement by the each party to the other to disclose the Confidential Information.\nARTICLE 4\nINJUNCTION\nThe parties hereto agree that money damages would not be a sufficient remedy for any breach of this\nAgreement and that in addition to other remedies, each offended party shall be entitled to specific performance\nand injunctive or other equitable relief, and in such circumstances the offending party agrees to waive posting\nof a bond to secure any such equitable relief hereunder.\nARTICLE 5\nDEFINITIVE AGREEMENTS; DISCLOSURE\nThe parties hereto will use their best efforts to enter into a definitive acquisition agreement and any\nother documents that may be necessary in order to consummate the A cquisition by October 31, 2007. If a\ndefinitive agreement has not been entered into by such date, then this Agreement will have no further force or\neffect except forArticles 1, 3, 4, 5 and 6 hereof.\nARTICLE 6\nMISCELLANEOUS\nSuccessors and A ssigns; W aiver; G overning L aw\n6.1\nThis Agreement shall be binding upon the parties hereto and their respective successors and assigns and\nshall inure to the benefit of the parties hereto and their respective successors and assigns. If any provision of\nthis Agreement is not enforceable in whole or in part, the remaining provisions of this Agreement shall not be\naffected. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the\nexercise of any other right, power or privilege hereunder. This Agreement shall be governed by, construed and\nenforced under the laws of the State of Colorado.\nNotices\n6.2\nAny notice or communication required or permitted hereunder must be in writing and sent by (a)\npersonal delivery, (b) expedited delivery service with proof of delivery, or (c) registered or certified mail,\npostage prepaid, to the addresses stated above or to such other address or to the attention of such other person\nas the applicable party hereafter designates by written notice sent in accordance herewith. Any such notice or\ncommunication will be deemed to have been given either at the time of personal delivery or, in the case of\ndelivery service or mail, as of the date of first attempted delivery at the address and in the manner provided\nherein.\nC ounterparts\n6.3\nThis Agreement may be executed in one or more counterparts, each of which shall be deemed an\noriginal, but all of which together shall constitute one and the same instrument. This Agreement may be\nexecuted and delivered by facsimile transmission.\nIN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed by\nthemselves or their duly authorized officers, as appropriate, as of the date first written above.\nSWANSI HOL DING S C ORP.\ns/s: Gareth Corbin\nG areth Corbin, Director\nZULU ENERGY CORP.\ns/s Paul Stroud\nPaul Stroud, President	Exhibit 99.3/A\nCONFIDENTIALITY /STANDSTILL AGREEMENT\nTHIS AGREEMENT is dated as of the 26th day of September, 2007\nAMONG:\nSWANSI HOLDINGS CORP., a Panama corporation and having an office for business located at Nerine\nFiduciaire S.A., Rue des Terreaux-du-Temple 4, Case postale 5023, CH - 1211 Geneva 11, Switzerland\n("Swansi");\nAND:\nZULU ENERGY CORP., a Colorado corporation having an office for business located at 2610- 1066 West\nHastings Street, Vancouver, BC V6E 3X ("Zulu")\nWHEREAS Swansi and Zulu are willing to enter into discussions regarding a possible acquisition by Zulu of\nshares of Nyati Resources Botswana (PTY) Limited, a Botswana corporation ("Nyati Botswana") from Swansi\n(the Acquisition").\nNOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the\nexchange of Confidential Information (as defined herein) between Swansi and Zulu as may be reasonably\nrequested from time to time and other good and valuable consideration the receipt and sufficiency of which is\nhereby acknowledged, the parties hereto hereby agree as follows:\nARTICLE 1\nCONFIDENTIALITY\nConfidential Information\n1.1\nFor purposes of this A greement the term confidential information ("Confidential Information") shall\nmean all financial and other nonpublic information, together with notes, analyses, compilations, studies or\nother documents prepared or provided by the disclosing party in connection with the evaluation of the\nA\ncquisition. Confidential Information shall also include proprietary information concerning the respective\nbusinesses, operations and assets of the parties, including, without limitation trade secrets, techniques, models,\ndata, documentation, code, research, development, processes, procedures, business strategy, marketing\ntimetables, pricing policies, financial information and other information of a similar nature, whether or not\nreduced to writing or other tangible form. Confidential Information shall not include (a) information known to\na\nreceiving\nparty\n(the\n"Receiving\nParty")\nor\nRepresentatives\nprior\nto\nobtaining\nthe\nsame\nfrom\nthe\ndisclosing\nparty (the "Disclosing Party"); (b) information in the public domain at the time of disclosure by Disclosing\nParty; or (c) information approved for release by written authorization of an authorized officer of the\nDisclosing Party.\nRepresentatives\n1.2\nFor purposes of this A greement the term representatives ("Representatives") shall mean each party,\ntheir directors, officers and employees, as well as their counsel, accountants, consultants and other\nrepresentatives in connection with the transactions contemplated hereby provided that such persons are bound\nby confidentiality agreements no less stringent than those in this A greement\nUse of Confidential Information\n1.3\nEach party will use the Confidential Information it receives solely for the purpose of evaluating the\nA cquisition and not for any other purpose and, except to the extent permitted by paragraph 1.5 hereof, will\nkeep such Confidential Information strictly confidential, provided, however, that Confidential Information may\nbe disclosed to such Representatives as needed to know such information for the purpose of evaluating and\nnegotiating the terms of the A cquisition and for no other purpose.\nNon-Disclosure\n1.4\nExcept to the extent permitted by paragraph 1.5 hereof, for a period of twelve (12) months following\nthe conclusion of any discussions or negotiations relating to the A cquisition, the parties hereto will direct their\nrespective Representatives to not disclose to any person or entity that the Confidential Information has been\nmade available, that discussions or negotiations are taking place or have recently taken place concerning the\nA cquisition, or any of the terms, conditions or other facts with respect to any other possible transaction\nbetween the parties hereto.\nProperty Rights Maintained\n1.5\nConfidential Information disclosed shall be and shall remain the property of the Disclosing Party. In the\nevent that the parties hereto do not proceed with the A cquisition by October 31, 2007, and, in any event, within\nfive (5) days after being so requested by either party both parties shall return or destroy all documents\nfurnished by the other. ny oral Confidential Information shall remain subject to the confidentiality obligations\nset forth in this A greement.\nARTICLE 2\nSTANDSTILL\nZulu and its principal shareholders agree that until October 31, 2007, or such shorter period if either\nparty notifies the other that it no longer wishes to proceed with the A cquisition ("Term of this A greement"),\nthat they will not, directly or indirectly, solicit, initiate or encourage submission of proposals of offers from any\nthird party relating to any acquisition, purchase or option to purchase an equity interest in Zulu, or any merger,\nconsolidation or business combination with Zulu or the sale of substantially all of the assets of Zulu. In the\nevent Zulu receives any solicitation, proposal or offer with regard to the foregoing, Zulu shall provide written\nnotice to Swansi within two business days of its receipt by Zulu or its principals.\nARTICLE 3\nNON-CIRCUMVENTION\nSuppliers and Customers\n3.1\nThe parties hereto agree that they shall not solicit business from any supplier, customer, client or\ncontact of any other party hereto for the purpose of circumventing the relationship between such party and such\nsupplier, customer, client and/or competing with such party during the Term of this A greement without prior\nwritten consent.\nMaterial Inducement\n3.2\nEach party hereto acknowledges and agrees that the other parties hereto have a material interest in\npreserving the relationships they have developed with their customers and employees against impairment by\ncompetitive activities of other persons and entities. A ccordingly, each party agrees that the restrictions\nand\ncovenants contained in this A greement are of the essence of this A greement and constitute a material\ninducement by the each party to the other to disclose the Confidential Information.\nARTICLE 4\nINJUNCTION\nThe parties hereto agree that money damages would not be a sufficient remedy for any breach of this\nA greement and that in addition to other remedies, each offended party shall be entitled to specific performance\nand injunctive or other equitable relief, and in such circumstances the offending party agrees to waive posting\nof a bond to secure any such equitable relief hereunder.\nARTICLE 5\nDEFINITIVE AGREEMENTS; DISCLOSURE\nThe parties hereto will use their best efforts to enter into a definitive acquisition agreement and any\nother documents that may be necessary in order to consummate the A cquisition by October 31, 2007. If a\ndefinitive agreement has not been entered into by such date, then this A greement will have no further force or\neffect except for A rticles 1, 3, 4, 5 and 6 hereof.\nARTICLE 6\nMISCELLANEOUS\nSuccessors and Assigns; Waiver; G overning Law\n6.1\nThis A greement shall be binding upon the parties hereto and their respective successors and assigns and\nshall inure to the benefit of the parties hereto and their respective successors and assigns. If any provision of\nthis A greement is not enforceable in whole or in part, the remaining provisions of this A greement shall not be\naffected. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the\nexercise of any other right, power or privilege hereunder. This A greement shall be governed by, construed and\nenforced under the laws of the State of Colorado.\nNotices\n6.2\nAny notice or communication required or permitted hereunder must be in writing and sent by (a)\npersonal delivery, (b) expedited delivery service with proof of delivery, or (c) registered or certified mail,\npostage prepaid, to the addresses stated above or to such other address or to the attention of such other person\nas the applicable party hereafter designates by written notice sent in accordance herewith. Any such notice or\ncommunication will be deemed to have been given either at the time of personal delivery or, in the case of\ndelivery service or mail, as of the date of first attempted delivery at the address and in the manner provided\nherein.\nCounterparts\n6.3\nThis A greement may be executed in one or more counterparts, each of which shall be deemed an\noriginal, but all of which together shall constitute one and the same instrument. This A greement may be\nexecuted and delivered by facsimile transmission.\nIN WITNESS WHEREOF the parties hereto have each caused this A greement to be executed by\nthemselves or their duly authorized officers, as appropriate, as of the date first written above.\nSWANSI HOLDINGS CORP.\ns/s: Gareth Corbin\nGareth Corbin, Director\nZULU ENERGY CORP.\ns/s Paul Stroud\nPaul Stroud, President	Exhibit 99.3/A\nCONFIDENTIALITY/STANDSTILL AGREEMENT\nTHIS AGREEMENT is dated as of the 26th day of September, 2007\nAMONG:\nSWANSI HOLDINGS CORP., a Panama corporation and having an office for business located at Nerine\nFiduciaire S.A., Rue des Terreaux-du-Temple 4, Case postale 5023, CH - 1211 Geneva 11, Switzerland\n(“Swansi”);\nAND:\nZULU ENERGY CORP., a Colorado corporation having an office for business located at 2610– 1066 West\nHastings Street, Vancouver, BC V6E 3X2 (“Zulu”)\nWHEREAS Swansi and Zulu are willing to enter into discussions regarding a possible acquisition by Zulu of\nshares of Nyati Resources Botswana (PTY) Limited, a Botswana corporation (“Nyati Botswana”) from Swansi\n(the “Acquisition”).\nNOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the\nexchange of Confidential Information (as defined herein) between Swansi and Zulu as may be reasonably\nrequested from time to time and other good and valuable consideration, the receipt and sufficiency of which is\nhereby acknowledged, the parties hereto hereby agree as follows:\nARTICLE 1\nCONFIDENTIALITY\nConfidential Information\n1.1\nFor purposes of this Agreement, the term confidential information (“Confidential Information”) shall\nmean all financial and other nonpublic information, together with notes, analyses, compilations, studies or\nother documents prepared or provided by the disclosing party in connection with the evaluation of the\nAcquisition. Confidential Information shall also include proprietary information concerning the respective\nbusinesses, operations and assets of the parties, including, without limitation, trade secrets, techniques, models,\ndata, documentation, code, research, development, processes, procedures, business strategy, marketing\ntimetables, pricing policies, financial information and other information of a similar nature, whether or not\nreduced to writing or other tangible form. Confidential Information shall not include (a) information known to\na receiving party (the “Receiving Party”) or Representatives prior to obtaining the same from the disclosing\nparty (the “Disclosing Party”); (b) information in the public domain at the time of disclosure by Disclosing\nParty; or (c) information approved for release by written authorization of an authorized officer of the\nDisclosing Party.\nRepresentatives\n1.2\nFor purposes of this Agreement, the term representatives (“Representatives”) shall mean each party,\ntheir directors, officers and employees, as well as their counsel, accountants, consultants and other\nrepresentatives in connection with the transactions contemplated hereby provided that such persons are bound\nby confidentiality agreements no less stringent than those in this Agreement.\nUse of Confidential Information\n1.3\nEach party will use the Confidential Information it receives solely for the purpose of evaluating the\nAcquisition and not for any other purpose and, except to the extent permitted by paragraph 1.5 hereof, will\nkeep such Confidential Information strictly confidential, provided, however, that Confidential Information may\nbe disclosed to such Representatives as needed to know such information for the purpose of evaluating and\nnegotiating the terms of the Acquisition and for no other purpose.\nNon-Disclosure\n1.4\nExcept to the extent permitted by paragraph 1.5 hereof, for a period of twelve (12) months following\nthe conclusion of any discussions or negotiations relating to the Acquisition, the parties hereto will direct their\nrespective Representatives to not disclose to any person or entity that the Confidential Information has been\nmade available, that discussions or negotiations are taking place or have recently taken place concerning the\nAcquisition, or any of the terms, conditions or other facts with respect to any other possible transaction\nbetween the parties hereto.\nProperty Rights Maintained\n1.5\nConfidential Information disclosed shall be and shall remain the property of the Disclosing Party. In the\nevent that the parties hereto do not proceed with the Acquisition by October 31, 2007, and, in any event, within\nfive (5) days after being so requested by either party, both parties shall return or destroy all documents\nfurnished by the other. Any oral Confidential Information shall remain subject to the confidentiality obligations\nset forth in this Agreement.\nARTICLE 2\nSTANDSTILL\nZulu and its principal shareholders agree that until October 31, 2007, or such shorter period if either\nparty notifies the other that it no longer wishes to proceed with the Acquisition (“Term of this Agreement”),\nthat they will not, directly or indirectly, solicit, initiate or encourage submission of proposals of offers from any\nthird party relating to any acquisition, purchase or option to purchase an equity interest in Zulu, or any merger,\nconsolidation or business combination with Zulu or the sale of substantially all of the assets of Zulu. In the\nevent Zulu receives any solicitation, proposal or offer with regard to the foregoing, Zulu shall provide written\nnotice to Swansi within two business days of its receipt by Zulu or its principals.\nARTICLE 3\nNON-CIRCUMVENTION\nSuppliers and Customers\n3.1\nThe parties hereto agree that they shall not solicit business from any supplier, customer, client or\ncontact of any other party hereto for the purpose of circumventing the relationship between such party and such\nsupplier, customer, client and/or competing with such party during the Term of this Agreement without prior\nwritten consent.\nMaterial Inducement\n3.2\nEach party hereto acknowledges and agrees that the other parties hereto have a material interest in\npreserving the relationships they have developed with their customers and employees against impairment by\ncompetitive activities of other persons and entities. Accordingly, each party agrees that the restrictions and\ncovenants contained in this Agreement are of the essence of this Agreement and constitute a material\ninducement by the each party to the other to disclose the Confidential Information.\nARTICLE 4\nINJUNCTION\nThe parties hereto agree that money damages would not be a sufficient remedy for any breach of this\nAgreement and that in addition to other remedies, each offended party shall be entitled to specific performance\nand injunctive or other equitable relief, and in such circumstances the offending party agrees to waive posting\nof a bond to secure any such equitable relief hereunder.\nARTICLE 5\nDEFINITIVE AGREEMENTS; DISCLOSURE\nThe parties hereto will use their best efforts to enter into a definitive acquisition agreement and any\nother documents that may be necessary in order to consummate the Acquisition by October 31, 2007. If a\ndefinitive agreement has not been entered into by such date, then this Agreement will have no further force or\neffect except for Articles 1, 3, 4, 5 and 6 hereof.\nARTICLE 6\nMISCELLANEOUS\nSuccessors and Assigns; Waiver; Governing Law\n6.1\nThis Agreement shall be binding upon the parties hereto and their respective successors and assigns and\nshall inure to the benefit of the parties hereto and their respective successors and assigns. If any provision of\nthis Agreement is not enforceable in whole or in part, the remaining provisions of this Agreement shall not be\naffected. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the\nexercise of any other right, power or privilege hereunder. This Agreement shall be governed by, construed and\nenforced under the laws of the State of Colorado.\nNotices\n6.2\nAny notice or communication required or permitted hereunder must be in writing and sent by (a)\npersonal delivery, (b) expedited delivery service with proof of delivery, or (c) registered or certified mail,\npostage prepaid, to the addresses stated above or to such other address or to the attention of such other person\nas the applicable party hereafter designates by written notice sent in accordance herewith. Any such notice or\ncommunication will be deemed to have been given either at the time of personal delivery or, in the case of\ndelivery service or mail, as of the date of first attempted delivery at the address and in the manner provided\nherein.\nCounterparts\n6.3\nThis Agreement may be executed in one or more counterparts, each of which shall be deemed an\noriginal, but all of which together shall constitute one and the same instrument. This Agreement may be\nexecuted and delivered by facsimile transmission.\nIN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed by\nthemselves or their duly authorized officers, as appropriate, as of the date first written above.\nSWANSI HOLDINGS CORP.\ns/s: Gareth Corbin\nGareth Corbin, Director\nZULU ENERGY CORP.\ns/s Paul Stroud\nPaul Stroud, President
715d09e3a02ad00be0de56f780e047a0.pdf	effective_date jurisdiction party	EXHIBIT 10.2\nEMPLOYEE CONFIDENTIALITY AGREEMENT\nThis Agreement is entered into as of May 24, 2017 by and between Nexeon MedSystems Inc (“Company”), a\nNevada corporation with its principal address at 1708 Jaggie Fox Way, Lexington, KY 40511 and Daniel Powell\n(“Employee”). Company and Employee are referred to collectively as “Parties and individually as a “Party”.\nWHEREAS, the Company wishes to hire Employee.\nThe Employee agrees as follows:\n1. Confidentiality.\n(a)\nThe Employee acknowledges that, by reason of the Employee’s employment by Company, Employee will have\naccess to confidential information of the Company (“Confidential Information”). The Employee acknowledges that such\nConfidential Information is a valuable and unique asset of the Company and covenants that, both during the term of\nEmployee’s employment with the Company (“Term’) and after the Term, the Employee will not disclose any Confidential\nInformation to any person or entity (except as the Employee’s duties as an employee or director of the Company may\nrequire) without the prior written authorization of the Company. The obligation of confidentiality imposed by this Section 1\nshall not apply to Confidential Information that otherwise becomes known to the public through no act of the Employee in\nbreach of this Agreement or which is required to be disclosed by court order or applicable law. The provisions of this\nSection 1 shall remain in full force and effect for a period of three (3) years after expiration of the Term.\n(b)\nConfidential Information includes all records, designs, business plans, financial statements, customer lists,\nmanuals, memoranda, research and development plans, chemical materials, compounds, technology platforms, source\ncodes, technical data, opportunities, targets, products, electronic devices, projects, protocols, programming techniques,\nexperimental work, pricing, customers, clients, finances, Intellectual Property and other property delivered to or compiled\nby the Employee by or on behalf of the Company or its providers, clients or customers that pertain to the business of the\nCompany shall be and remain the property of the Company and be subject at all times to its discretion and control.\nLikewise, all correspondence, reports, records, charts, advertising materials and other similar data pertaining to the\nbusiness, activities, research and development, Intellectual Property or future plans of the Company that is collected by\nthe Employee shall be delivered promptly to the Company without request by it upon termination of the Employee’s\nemployment. For purposes of this Section 1(b), “Intellectual Property” shall mean patents, copyrights, trademarks, trade\ndress, trade secrets, other such rights, and any applications. The phrase, “Confidential Information” does not include\ninformation that (i) was lawfully in Employee’s possession prior to disclosure of such information by the Company; (ii)\nwas, or at any time becomes, available in the public domain other than through a violation of this Agreement; (iii) is\ndocumented by Employee as having been developed by Employee outside the scope of Employee rendering services\nhereunder and independently; or (iv) is furnished to Employee by a third party not under an obligation of confidentiality to\nthe Company.\n1\n(c)\nEmployee will be allowed to disclose such information of the Company to the extent that such disclosure is: (i)\nduly approved in writing by the Company; (ii) necessary for Employee to enforce Employee’s rights under this Agreement\nin connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative\nbody.\n2. Inventions. The Employee is hereby retained in a capacity such that the Employee’s responsibilities may include\nthe making of technical and/or managerial contributions of value to the Company. The Employee hereby assigns to the\nCompany all rights, title and interest in such contributions and inventions made or conceived by the Employee alone or\njointly with others during the Term. This assignment shall include (a) the right to file and prosecute patent applications on\nsuch inventions in any and all countries, (b) the patent applications filed and patents issuing thereon, and (c) the right to\nobtain copyright, trademark or trade name protection for any such work product. The Employee shall promptly and fully\ndisclose all such contributions and inventions to the Company and assist the Company in obtaining and protecting the\nrights therein (including patents thereon), in any and all countries; provided, however, that said contributions and\ninventions will be the property of the Company, whether or not patented or registered for copyright, trademark or trade\nname protection, as the case may be. Inventions conceived by the Employee, which are not related to the business of the\nCompany, will remain the property of the Employee, and notwithstanding the foregoing, the Company shall not have any\nright, title or interest in any work product or copyrightable work developed outside of work hours and without the use of\nCompany resources that does not relate to the Company’s business and does not result from any work performed by the\nEmployee for the Company.\n3. Additional Representations of Employee. Employee represents and warrants to the Company that Employee is\nnot Party to any written or oral agreement with any third Party that would restrict Employee’s ability to enter into this\nEmployee Confidentiality Agreement or to perform Employee’s obligations hereunder and that Employee will not, by\njoining the Company, breach any non-disclosure, proprietary rights, non-competition, non-solicitation or other covenant in\nfavor of any third party.\n4. Non-Solicitation of Employees. Employee agrees that for a period of one (1) year after the Term, Employee shall\nnot recruit, attempt to recruit or directly or indirectly participate in the recruitment of, any Company employee; provided,\nhowever, any general public recruitment responded to by Company employees will not breach this provision.\n5. Non-Solicitation of Customers or Prospects. Employee agrees that during the Term and for a period of one (1)\nyear thereafter, Employee will not, either directly or indirectly solicit, separately or in association with others, attempt to\nsolicit, canvass or interfere with any current customer, or supplier of the Company with whom Employee had a\nrelationship while working for the Company in a manner that directly competes with the Company.\n6. General.\n6.1 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Employee\nand the Employee’s heirs, executors, administrators, estate, beneficiaries, and legal representatives. Neither Party may\nassign this Agreement without the written consent of the other Party. The rights and obligations of the Company under\nthis Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of the Company.\n2\n6.2 Waiver. Either Party’s failure to enforce any provision of this Agreement shall not in any way be construed\nas a waiver of any such provision, or prevent that Party thereafter from enforcing each and every other provision of this\nAgreement.\n6.3 Attorneys’ Fees. Each side will bear its own attorneys’ fees in any dispute unless a statutory section at\nissue, if any, authorizes the award of attorneys’ fees to the prevailing Party.\n6.4\nGoverning Law; Venue and Jurisdiction. This Agreement will be governed by and construed in\naccordance with the laws of the United States and the State of Nevada. Venue for litigation of any dispute hereunder\nshall lie in the courts of Clark County, Nevada. The Parties submit to personal jurisdiction in the State of Nevada.\n6.5 Counterparts. The Parties agree that this Agreement may be executed in identical counterparts. The\nAgreement will be binding and enforceable on all Parties even though signed in counterparts.\n7.\nEntire Agreement. This Agreement constitutes the entire understanding between Employee and the Company\nrelating to Employee Confidentiality matters. This Agreement supersedes and replaces any prior verbal or written\nagreements between the Company and Employee. This Agreement may not be modified or amended except by a written\nagreement signed by both Employee and a person authorized by the Board of the Company. No oral waiver, amendment\nor modification will be effective under any circumstances whatsoever.\nTHE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY UNDERSTAND\nEACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES HAVE EXECUTED THIS\nAGREEMENT ON THE DATES SHOWN BELOW.\nNexeon MedSystems Inc.\nEmployee\nBy:/s/ Christopher Miller\nBy:/s/ Daniel Powell\nName: Christopher Miller\nName: Daniel Powell, Individually\nIts: Chief Financial Officer\n3	EXHIBIT 10.2\nEMPLOYEE CONFIDENTIALITY AGREEMENT\nThis Agreement is entered into as of May 24, 2017 by and between Nexeon MedSystems Inc (“Company”), a\nNevada corporation with its principal address at 1708 Jaggie Fox Way, Lexington, KY 40511 and Daniel Powell\n(“Employee”). Company and Employee are referred to collectively as “Parties and individually as a “P arty”.\nWHEREAS, the Company wishes to hire Employee.\nThe Employee agrees as follows:\n1. Confidentiality.\n(a) The Employee acknowledges that, by reason of the Employee's employment by Company, Employee will have\naccess to confidential information of the Company (“Confidential Information”). The Employee acknowledges that such\nConfidential Information is a valuable and unique asset of the Company and covenants that, both during the term of\nEmployee's employment with the Company (’Term') and after the Term, the Employee will not disclose any Confidential\nInformation to any person or entity (except as the Employee's duties as an employee or director of the Company may\nrequire) without the prior written authorization of the Company. The obligation of confidentiality imposed by this Section 1\nshall not apply to Confidential Information that otherwise becomes known to the public through no act of the Employee in\nbreach of this Agreement or which is required to be disclosed by court order or applicable law. The provisions of this\nSection 1 shall remain in full force and effect for a period of three (3) years after expiration of the Term.\n(b) Confidential Information includes all records, designs, business plans, financial statements, customer lists,\nmanuals, memoranda, research and development plans, chemical materials, compounds, technology platforms, source\ncodes, technical data, opportunities, targets, products, electronic devices, projects, protocols, programming techniques,\nexperimental work, pricing, customers, clients, finances, Intellectual Property and other property delivered to or compiled\nby the Employee by or on behalf of the Company or its providers, clients or customers that pertain to the business of the\nCompany shall be and remain the property of the Company and be subject at all times to its discretion and control.\nLikewise, all correspondence, reports, records, charts, advertising materials and other similar data pertaining to the\nbusiness, activities, research and development, Intellectual Property or future plans of the Company that is collected by\nthe Employee shall be delivered promptly to the Company without request by it upon termination of the Employee's\nemployment. For purposes of this Section 1(b), “Intellectual Proper_ty” shall mean patents, copyrights, trademarks, trade\ndress, trade secrets, other such rights, and any applications. The phrase, “Confidential Information” does not include\ninformation that (i) was lawfully in Employee's possession prior to disclosure of such information by the Company; (ii)\nwas, or at any time becomes, available in the public domain other than through a violation of this Agreement; (iii) is\ndocumented by Employee as having been developed by Employee outside the scope of Employee rendering services\nhereunder and independently; or (iv) is furnished to Employee by a third party not under an obligation of confidentiality to\nthe Company.\n(c) Employee will be allowed to disclose such information of the Company to the extent that such disclosure is: (i)\nduly approved in writing by the Company; (ii) necessary for Employee to enforce Employee's rights under this Agreement\nin connection with a legal proceeding; or (iii) required by law or by the order of a court or similarjudicial or administrative\nbody.\n2. Inventions. The Employee is hereby retained in a capacity such that the Employee's responsibilities may include\nthe making of technical and/or managerial contributions of value to the Company. The Employee hereby assigns to the\nCompany all rights, title and interest in such contributions and inventions made or conceived by the Employee alone or\njointly with others during the Term. This assignment shall include (a) the right to file and prosecute patent applications on\nsuch inventions in any and all countries, (b) the patent applications filed and patents issuing thereon, and (c) the right to\nobtain copyright, trademark or trade name protection for any such work product. The Employee shall promptly and fully\ndisclose all such contributions and inventions to the Company and assist the Company in obtaining and protecting the\nrights therein (including patents thereon), in any and all countries; provided, however, that said contributions and\ninventions will be the property of the Company, whether or not patented or registered for copyright, trademark or trade\nname protection, as the case may be. Inventions conceived by the Employee, which are not related to the business of the\nCompany, will remain the property of the Employee, and notwithstanding the foregoing, the Company shall not have any\nright, title or interest in any work product or copyrightable work developed outside of work hours and without the use of\nCompany resources that does not relate to the Company's business and does not result from any work performed by the\nE mployee for the Company.\n3. Additional Representations of Employee. Employee represents and warrants to the Company that Employee is\nnot Party to any written or oral agreement with any third Party that would restrict Employee's ability to enter into this\nEmployee Confidentiality Agreement or to perform Employee's obligations hereunder and that Employee will not, by\njoining the Company, breach any non-disclosure, proprietary rights, non-competition, non-solicitation or other covenant in\nfavor of any third party.\n4. Non-Solicitation of Employees. Employee agrees that for a period of one (1) year after the Term, Employee shall\nnot recruit, attempt to recruit or directly or indirectly participate in the recruitment of, any Company employee; provided,\nhowever, any general public recruitment responded to by Company employees will not breach this provision.\n5. Non-Solicitation of Customers or Prospects. Employee agrees that during the Term and for a period of one (1)\nyear thereafter, Employee will not, either directly or indirectly solicit, separately or in association with others, attempt to\nsolicit, canvass or interfere with any current customer, or supplier of the Company with whom Employee had a\nrelationship while working forthe Company in a mannerthat directly competes with the Company.\n6. General.\n6.1 Successors and Assigns. This Agreementshall be binding upon and inure to the benefit of the Employee\nand the Employee's heirs, executors, administrators, estate, beneficiaries, and legal representatives. Neither Party may\nassign this Agreement without the written consent of the other Party. The rights and obligations of the Company under\nthis Agreement shall inure to the benefit ofand shall be binding upon the successors and assigns of the Company.\n6.2 Waiver. Either Party's failure to enforce any provision of this Agreement shall not in any way be construed\nas a waiver of any such provision, or prevent that Party thereafter from enforcing each and every other provision of this\nAgreement.\n6.3 Attorneys' Fees. Each side will bear its own attorneys' fees in any dispute unless a statutory section at\nissue, if any, authorizes the award of attorneys' fees to the prevailing Party.\n6.4 Governing LaW'I Venue and |urisdiction. This Agreement will be governed by and construed in\naccordance with the laws of the United States and the State of Nevada. Venue for litigation of any dispute hereunder\nshall lie in the courts ofClark County, Nevada. The Parties submit to personaljurisdiction in the State of Nevada.\n6.5 Counterparts. The Parties agree that this Agreement may be executed in identical counterparts. The\nAgreement will be binding and enforceable on all Parties even though signed in counterparts.\n7. Entire Agreement. This Agreement constitutes the entire understanding between Employee and the Company\nrelating to Employee Confidentiality matters. This Agreement supersedes and replaces any prior verbal or written\nagreements between the Company and Employee. This Agreement may not be modified or amended except by a written\nagreement signed by both Employee and a person authorized by the Board ofthe Company. No oral waiver, amendment\nor modification will be effective under any circumstances whatsoever.\nTHE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY UNDERSTAND\nEACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES HAVE EXECUTED THIS\nAGREEMENT ON THE DATES SHOWN BELOW.\nNexeon MedSystems lnc. Employee\n3/351 Christopher Miller 313%! Daniel Powell\name: rrs op er rer ame: anre owe , n rvr ua y\nIts: C hief Financial Officer	EXHIBIT 10.2\nEMPLOYEE CONFIDENTIALITY AGREEMENT\nThis Agreement is entered into as of May 24, 2017 by and between Nexeon Meds ystems Inc ("Company"), a\nNevada corporation with its principal address at 1708 J aggie Fox Way, Lexington, KY 40511 and Daniel Powell\n("Employee"). Company and Employee are referred to collectively as "Parties and individually as a "Party".\nWHEREAS, the Company wishes to hire Employee.\nThe Employee agrees as follows:\n1. Confidentiality.\n(a)\nThe Employee acknowledges that, by reason of the Employee's employment by Company, Employee wil have\naccess to confidentia information of the Company ("Confidential Information"). The Employee acknowledges that such\nConfidential Information is a valuable and unique asset of the Company and covenants that, both during the term of\nEmployee's employment with the Company ("Term') and after the Term, the Employee wil not disclose any Confidential\nInformation to any person or entity (except as the Employee's duties as an employee or director of the Company may\nrequire) without the prior written authorization of the Company. The obligation of confidentiality imposed by this Section 1\nshall not apply to Confidentia Information that otherwise becomes known to the public through no act of the Employee in\nbreach of this Agreement or which is required to be disclosed by court order or applicable law. The provisions of this\nSection 1 shall remain in full force and effect for a period of three (3) years after expiration of the Term.\n(b)\nConfidential Information includes all records, designs, business plans, financial statements, customer lists,\nmanuals, memoranda, research and development plans, chemical materials, compounds, technology platforms, source\ncodes, technical data, opportunities, targets, products, electronic devices, projects, protocols, programming techniques,\nexperimental work, pricing, customers, clients, finances, Intellectual roperty and other property delivered to or compiled\nby the Employee by or on behalf of the Company or its providers, clients or customers that pertain to the business of the\nCompany shall be and remain the property of the Company and be subject at all times to its discretion and control.\nLikewise, all correspondence, reports, records, charts, advertising materials and other similar data pertaining to the\nbusiness, activities, research and development, Intellectual Property or future plans of the Company that is collected by\nthe Employee shall be delivered promptly to the Company without request by it upon termination of the Employee's\nemployment. For purposes of this Section 1(b), "Intellectual Property" shall mean patents, copyrights, trademarks, trade\ndress, trade secrets, other such rights, and any applications. The phrase, "Confidential Information" does not include\ninformation that (i) was lawfully in Employee's possession prior to disclosure of such information by the Company; (ii)\nwas, or at any time becomes, available in the public domain other than through a violation of this Agreement; (iii) is\ndocumented by Employee as having been developed by Employee outside the scope of Employee rendering services\nhereunder and independently; or (iv) is furnished to Employee by a third party not under an obligation of confidentiality to\nthe Company.\n(c)\nEmployee wil be allowed to disclose such information of the Company to the extent that such disclosure is: (i)\nduly approved in writing by the Company; (ii) necessary for Employee to enforce Employee's rights under this Agreement\nin connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative\nbody.\n2.\nInventions. The Employee is hereby retained in a capacity such that the Employee's responsibilities may include\nthe making of technical and/or managerial contributions of value to the Company. The Employee hereby assigns to the\nCompany all rights, title and interest in such contributions and inventions made or conceived by the Employee alone or\njointly with others during the Term. This assignment shall include (a) the right to file and prosecute patent applications on\nsuch inventions in any and all countries, (b) the patent applications filed and patents issuing thereon, and (c) the right to\nobtain copyright, trademark or trade name protection for any such work product. The Employee shall promptly and fully\ndisclose all such contributions and inventions to the Company and assist the Company in obtaining and protecting the\nrights therein (including patents thereon), in any and all countries; provided, however, that said contributions and\ninventions will be the property of the Company, whether or not patented or registered for copyright, trademark or trade\nname protection, as the case may be. Inventions conceived by the mployee, which are not related to the business of the\nCompany, will remain the property of the Employee, and notwithstanding the foregoing, the Company shall not have any\nright, title or interest in any work product or copyrightable work developed outside of work hours and without the use of\nCompany resources that does not relate to the Company's business and does not result from any work performed by the\nEmployee for the Company.\n3.\nAdditional Representations of Employee. mployee represents and warrants to the Company that Employee\nis\nnot Party to any written or oral agreement with any third Party that would restrict Employee's ability to enter into this\nEmployee Confidentiality Agreement or to perform Employee's obligations hereunder and that Employee will not, by\njoining the Company, breach any non-disclosure, proprietary rights, non-competition, non-solicitation or other covenant in\nfavor of any third party.\n4. Non-Solicitation of Employees. Employee agrees that for a period of one (1) year after the Term, Employee shall\nnot recruit, attempt to recruit or directly or indirectly participate in the recruitment of, any Company employee; provided,\nhowever, any general public recruitment responded to by Company employees wil not breach this provision.\n5.\nNon-Solicitation of Customers or Prospects. Employee agrees that during the Term and for a period of one (1)\nyear thereafter, Employee will not, either directly or indirectly solicit, separately or in association with others, attempt to\nsolicit, canvass or interfere with any current customer, or supplier of the Company with whom Employee had a\nrelationship while working for the Company in a manner that directly competes with the Company.\n6. General.\n6.1 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Employee\nand the Employee's heirs, executors, administrators, estate, beneficiaries, and legal representatives. Neither Party may\nassign this Agreement without the written consent of the other Party. The rights and obligations of the Company under\nthis Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of the Company.\n6.2 Waiver. Either Party's failure to enforce any provision of this Agreement shall not in any way be construed\nas a waiver of any such provision, or prevent that Party thereafter from enforcing each and every other provision of this\nAgreement.\n6.3\nAttorneys' Fees. Each side will bear its own attorneys' fees in any dispute unless a statutory section at\nissue, if any, authorizes the award of attorneys' fees to the prevailing Party.\n6.4\nGoverning Law; Venue and J urisdiction. This Agreement will be governed by and construed\nin\naccordance with the laws of the United States and the State of Nevada. Venue for litigation of any dispute hereunder\nshall lie in the courts of Clark County, Nevada. The Parties submit to persona jurisdiction in the State of Nevada.\n6.5 Counterparts. The Parties agree that this Agreement may be executed in identical counterparts. The\nAgreement will be binding and enforceable on all Parties even though signed in counterparts.\n7.\nEntire Agreement. This Agreement constitutes the entire understanding between Employee and the Company\nrelating to Employee Confidentiality matters. This Agreement supersedes and replaces any prior verbal or written\nagreements between the Company and Employee. This Agreement may not be modified or amended except by a written\nagreement signed by both Employee and a person authorized by the Board of the Company. No oral waiver, amendment\nor modification will be effective under any circumstances whatsoever.\nTHE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY UNDERSTAND\nEACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES HAVE EXECUTED THIS\nAGREEMENT ON THE DATES SHOWN BELOW.\nNexeon Meds ystems Inc.\nEmployee\nB/s/ Christopher Miller\nB/s/ Daniel Powell\nName: Christopher MilTer\nName: Daniet Powel, Individually\nIts: Chief Financia Officer\n3	EXHIBIT 10.2\nEMPLOYEE CONFIDENTIALITY AGREEMENT\nThis Agreement is entered into as of May 24, 2017 by and between Nexeon MedSystems Inc (“Company”), a\nNevada corporation with its principal address at 1708 Jaggie Fox Way, Lexington, KY 40511 and Daniel Powell\n(“Employee”). Company and Employee are referred to collectively as “Parties and individually as a “Party”.\nWHEREAS, the Company wishes to hire Employee.\nThe Employee agrees as follows:\n1. Confidentiality.\n(a)\nThe Employee acknowledges that, by reason of the Employee’s employment by Company, Employee will have\naccess to confidential information of the Company (“Confidential Information”). The Employee acknowledges that such\nConfidential Information is a valuable and unique asset of the Company and covenants that, both during the term of\nEmployee’s employment with the Company (“Term’) and after the Term, the Employee will not disclose any Confidential\nInformation to any person or entity (except as the Employee’s duties as an employee or director of the Company may\nrequire) without the prior written authorization of the Company. The obligation of confidentiality imposed by this Section 1\nshall not apply to Confidential Information that otherwise becomes known to the public through no act of the Employee in\nbreach of this Agreement or which is required to be disclosed by court order or applicable law. The provisions of this\nSection 1 shall remain in full force and effect for a period of three (3) years after expiration of the Term.\n(b)\nConfidential Information includes all records, designs, business plans, financial statements, customer lists,\nmanuals, memoranda, research and development plans, chemical materials, compounds, technology platforms, source\ncodes, technical data, opportunities, targets, products, electronic devices, projects, protocols, programming techniques,\nexperimental work, pricing, customers, clients, finances, Intellectual Property and other property delivered to or compiled\nby the Employee by or on behalf of the Company or its providers, clients or customers that pertain to the business of the\nCompany shall be and remain the property of the Company and be subject at all times to its discretion and control.\nLikewise, all correspondence, reports, records, charts, advertising materials and other similar data pertaining to the\nbusiness, activities, research and development, Intellectual Property or future plans of the Company that is collected by\nthe Employee shall be delivered promptly to the Company without request by it upon termination of the Employee’s\nemployment. For purposes of this Section 1(b), “Intellectual Property” shall mean patents, copyrights, trademarks, trade\ndress, trade secrets, other such rights, and any applications. The phrase, “Confidential Information” does not include\ninformation that (i) was lawfully in Employee’s possession prior to disclosure of such information by the Company; (ii)\nwas, or at any time becomes, available in the public domain other than through a violation of this Agreement; (iii) is\ndocumented by Employee as having been developed by Employee outside the scope of Employee rendering services\nhereunder and independently; or (iv) is furnished to Employee by a third party not under an obligation of confidentiality to\nthe Company.\n1\n(c)\nEmployee will be allowed to disclose such information of the Company to the extent that such disclosure is: (i)\nduly approved in writing by the Company; (ii) necessary for Employee to enforce Employee’s rights under this Agreement\nin connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative\nbody.\n2. Inventions. The Employee is hereby retained in a capacity such that the Employee’s responsibilities may include\nthe making of technical and/or managerial contributions of value to the Company. The Employee hereby assigns to the\nCompany all rights, title and interest in such contributions and inventions made or conceived by the Employee alone or\njointly with others during the Term. This assignment shall include (a) the right to file and prosecute patent applications on\nsuch inventions in any and all countries, (b) the patent applications filed and patents issuing thereon, and (c) the right to\nobtain copyright, trademark or trade name protection for any such work product. The Employee shall promptly and fully\ndisclose all such contributions and inventions to the Company and assist the Company in obtaining and protecting the\nrights therein (including patents thereon), in any and all countries; provided, however, that said contributions and\ninventions will be the property of the Company, whether or not patented or registered for copyright, trademark or trade\nname protection, as the case may be. Inventions conceived by the Employee, which are not related to the business of the\nCompany, will remain the property of the Employee, and notwithstanding the foregoing, the Company shall not have any\nright, title or interest in any work product or copyrightable work developed outside of work hours and without the use of\nCompany resources that does not relate to the Company’s business and does not result from any work performed by the\nEmployee for the Company.\n3. Additional Representations of Employee. Employee represents and warrants to the Company that Employee is\nnot Party to any written or oral agreement with any third Party that would restrict Employee’s ability to enter into this\nEmployee Confidentiality Agreement or to perform Employee’s obligations hereunder and that Employee will not, by\njoining the Company, breach any non-disclosure, proprietary rights, non-competition, non-solicitation or other covenant in\nfavor of any third party.\n4. Non-Solicitation of Employees. Employee agrees that for a period of one (1) year after the Term, Employee shall\nnot recruit, attempt to recruit or directly or indirectly participate in the recruitment of, any Company employee; provided,\nhowever, any general public recruitment responded to by Company employees will not breach this provision.\n5. Non-Solicitation of Customers or Prospects. Employee agrees that during the Term and for a period of one (1)\nyear thereafter, Employee will not, either directly or indirectly solicit, separately or in association with others, attempt to\nsolicit, canvass or interfere with any current customer, or supplier of the Company with whom Employee had a\nrelationship while working for the Company in a manner that directly competes with the Company.\n6. General.\n6.1 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Employee\nand the Employee’s heirs, executors, administrators, estate, beneficiaries, and legal representatives. Neither Party may\nassign this Agreement without the written consent of the other Party. The rights and obligations of the Company under\nthis Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of the Company.\n2\n6.2 Waiver. Either Party’s failure to enforce any provision of this Agreement shall not in any way be construed\nas a waiver of any such provision, or prevent that Party thereafter from enforcing each and every other provision of this\nAgreement.\n6.3 Attorneys’ Fees. Each side will bear its own attorneys’ fees in any dispute unless a statutory section at\nissue, if any, authorizes the award of attorneys’ fees to the prevailing Party.\n6.4\nGoverning Law; Venue and Jurisdiction. This Agreement will be governed by and construed in\naccordance with the laws of the United States and the State of Nevada. Venue for litigation of any dispute hereunder\nshall lie in the courts of Clark County, Nevada. The Parties submit to personal jurisdiction in the State of Nevada.\n6.5 Counterparts. The Parties agree that this Agreement may be executed in identical counterparts. The\nAgreement will be binding and enforceable on all Parties even though signed in counterparts.\n7.\nEntire Agreement. This Agreement constitutes the entire understanding between Employee and the Company\nrelating to Employee Confidentiality matters. This Agreement supersedes and replaces any prior verbal or written\nagreements between the Company and Employee. This Agreement may not be modified or amended except by a written\nagreement signed by both Employee and a person authorized by the Board of the Company. No oral waiver, amendment\nor modification will be effective under any circumstances whatsoever.\nTHE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY UNDERSTAND\nEACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES HAVE EXECUTED THIS\nAGREEMENT ON THE DATES SHOWN BELOW.\nNexeon MedSystems Inc.\nEmployee\nBy:/s/ Christopher Miller\nBy:/s/ Daniel Powell\nName: Christopher Miller\nName: Daniel Powell, Individually\nIts: Chief Financial Officer\n3
71cea3853cdc5702fb97a8b56691ebce.pdf	effective_date jurisdiction party term	EX-99 .(D)(2) 2 tv508217_ex-d2.htm EXHIBIT (D)(2)\nExhibit (d)(2)\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (the “Agreement”) is made and entered into effective December 18, 2017 by and between Pareteum\nCorporation, a Delaware corporation having its corporate address at: 100 Park Avenue, Suite 1600, New York City, New York 10017, USA\n(“TEUM”), and iPass Inc., a Delaware corporation having its address at: 3800 Bridge Parkway, Redwood Shores, California 94065, USA\n(“iPass”), either both of which may be hereinafter referred to as "the Party" or "the Parties."\nWHEREAS\nThe Parties desire to discuss certain business transactions and to exchange information for the purpose of exploring a potential business\nrelationship for the benefit of the Parties and/or to sign a business contract that shall include confidential technical or business information of\neach Party or entitle each Party to exchange information for the execution of this business contract. In order to facilitate these discussions and in\norder for the Parties to receive from each other, either orally or in writing, certain technical and business information under terms that will protect\nthe confidential and proprietary nature of such information, the Parties have entered into this Agreement.\nNOW THEREFORE, THE PARTIES AGREE AS FOLLOWS;\n1. The Definition of "Confidential Information": The term "Confidential Information" shall mean all information disclosed by one Party to\nthe other Party, whether orally, in written, electronic or other format, and whether disclosed by a Party’s agents, principals, employees or\nrepresentatives, and whether to the other Party's agent's principals, employees or representatives. “Confidential Information” shall include,\nwithout limitation, all ideas improvements, inventions, methodologies, works and other innovations of any kind, authored, conceived,\ndeveloped, made or reduced to practice by the disclosing Party, whether or not eligible for copyright, patent, trademark, trade secret or other\nlegal protection (including, without limitation, formulas, processes, databases, mechanical and electronic hardware, electronic components,\ncomputers and their parts, computer programs and their documentation, encoding techniques, marketing and new product plans, production,\nprocesses, advertising, packaging and marketing techniques, marketing plans, product plans, technical plans, business strategies, strategic\nalliances and partners, financial information, engineering data, methodologies and processes, forecasts, personnel information, customer and\nprospective customer lists, trade secrets, product design, capabilities, specifications, the identify of potential and actual customers, and\nsuppliers and all documentation, materials and media provided by one Party to the other).\n2. Protection of "Confidential Information": In consideration of each Party's disclosure of Confidential Information to the other Party, each\nParty agrees with respect to the Confidential Information received from the other Party, that it:\n(a) shall maintain such Confidential Information in the strictest confidence;\nPareteum Corporation | 100 Park Ave. | Suite 1600 | New York | NY 10017 | United States\nTel. +1 (212) 984.1096\nwww.Pareteum.com\nNYSE MKT: TEUM\n(b) shall not disclose, transfer or otherwise make available any of such Confidential Information to any third party, unless such Confidential\nInformation must be disclosed for the purposes contemplated herein, or under legal compulsion to disclose any such Confidential\nInformation, in which event each Party shall, prior to such disclosure, obtain written consent from the other Party and obtain from the\nthird person a written agreement acknowledging the binding effect of these restrictions regarding the Confidential Information; and\n(c) shall not directly, indirectly or in concert with any person, use the Confidential Information for any purpose other than evaluating the\nprospective business relationship with the other Party in accordance with the introduction.\nEach Party shall take reasonable measures to protect the Confidential Information of the other Party. Those measures shall not be less than\nthe measures taken to protect the receiving Party’s own confidential information. Confidential Information of the other Party may be\nprovided to a Party’s employees only on a need-to-know basis, and prior to such provision, the Party will notify each employee to whom\nsuch disclosure is made that such Confidential Information is received in confidence and shall be kept in confidence by such employee.\n3. Excluded Information: This Agreement shall not apply to any information:\n(a) that has been or which becomes publicly known, through no wrongful act of either Party;\n(b) which is required to be disclosed in order to comply with applicable law or regulation or with any requirement imposed by judicial or\nadministrative process or any governmental or court order.\n4. No Licenses or Warranties: Each Party’s Confidential Information and all rights thereto shall remain such Party’s sole property. Each Party\nrecognizes that the disclosure of Confidential Information by the disclosing Party shall not be construed as granting any rights, by license or\notherwise, concerning any Confidential Information, except as may be explicitly created by this Agreement. Each Party acknowledges that\nthe other Party’s Confidential Information includes valuable trade secrets. Neither Party has any obligation to disclose Confidential\nInformation to the other Party. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY,\nCOMPLETENESS, CONDITION, FITNESS and MERCHANTABILITY, OR PERFORMANCE OF ITS CONFIDENTIAL\nINFORMATION.\n5. Remedies: If either Party causes a disclosure of the other Party’s Confidential Information in breach of the terms of this Agreement, the\ndisclosing Party shall immediately report in writing the disclosure to the other Party and shall save, defend, indemnify and hold the non-\ndisclosing Party harmless from and against any and all liability and damages suffered by the non-disclosing Party arising therefrom. In\naddition to the foregoing and without limitation thereof, the disclosing Party shall cooperate in prosecuting any claims against third parties\nfor unauthorized use of any Confidential Information. Each Party acknowledges that unauthorized disclosure, use or disposition, whether\nactual or threatened, of any Confidential Information shall cause irreparable harm, loss of business and significant injury to the disclosing\nParty, the scope of which would be difficult to ascertain. Each Party agrees, therefore, that the disclosing Party has the right to obtain an\nimmediate injunction against any breach, threatened breach or attempted breach of this Agreement, in addition to any other remedies that\nmay be available at law, including without limitation, the recovery of expenses, costs and attorney’s fees arising out of such breach,\nthreatened breach or attempted breach.\n6. Return of "Confidential Information": All Confidential Information shall be returned to the disclosing Parties promptly upon written\nrequest or, at the election of the disclosing Party, the Party that received the Confidential Information shall certify said information has been\ndestroyed and is no longer useable in any format.\nPareteum Corporation | 100 Park Ave. | Suite 1600 | New York | NY 10017 | United States\nTel. +1 (212) 984.1096\nwww.Pareteum.com\nNYSE MKT: TEUM\n7. Securities: Parties hereby acknowledge, covenant and agree that they are aware that United States securities laws may prohibit any person\nwho has material, non-public information about a company (including a Party) from purchasing or selling, directly or indirectly, securities of\na company (including the Parties), or from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities.\n8. Prohibition of Disclosure: Neither Party hereto shall in any way or in any form distribute, disclose, publicize, issue press releases, or\nadvertise in any manner, including, but not limited to, making representation in court pleadings, except as required by law, the discussions\nthat gave rise to this Agreement, the discussions or negotiations covered by this Agreement, this Agreement or the Confidential Information\nprovided pursuant to this Agreement, without first obtaining the prior written consent of the other Party.\n9. Term, Assignment and Survival: This Agreement shall be valid unless terminated by mutual written Agreement. Each Party’s obligations\nwith respect to the Confidential Information, including but not limited to, sections 2,4,5,6 shall survive the termination of this Agreement\nand/or return of all Confidential Information from the latter date of either termination or return of such information. Neither this Agreement\nnor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by either Party.\n10. Governing Law; Jurisdiction: This Agreement shall be governed and construed in accordance with the laws of the State of New York,\nUnited States of America. In the event of any disputes arising under this Agreement, the undersigned Parties without regard to any principles\nof conflicts of laws and waiving any defenses of forum non conveniens hereby submit to the exclusive personal and subject matter\njurisdiction of the State and Federal Courts situated in the Borough of Manhattan, New York, New York.\n11. Waiver: No failure by either Party to exercise any rights arising from default by the other Party shall impair that right or constitute a waiver\nof it. No waiver by either Party of any covenant to be performed by the other shall constitute a waiver of any later breach of covenant.\n12. Counterparts: This Agreement may be executed in two signed copies, each of which when taken together shall be deemed but one original.\n13. Severability: The validity or unenforceability of any provision or provisions of this Agreement shall no affect the validity or enforceability\nof any other provision hereof, which shall remain in full force and effect.\n14. Entire Agreement; Amendment: This Agreement contains the entire understandings between and among the Parties and supersedes any\nprior understanding and agreements among them respecting the subject matter hereof. No amendment to this Agreement shall be valid unless\nset forth in writing and signed by both Parties.\n15. Notices: All notices required or permitted hereunder shall be in writing and shall be sent by nationally recognized overnight courier service,\nor by registered or certified mail, to the addresses stated in the heading of this Agreement. Unless otherwise specified, notices shall be\ndeemed given when the return receipt is received.\n16. Non-solicitation/Non-circumvention. iPass understands, acknowledges and agrees, AS A MATERIAL INDUCEMENT FOR TEUM TO\nMAKE AND ENTER INTO THIS AGREEMENT, that with respect to any customer or prospective customer opportunities that are\nidentified by TEUM (collectively, the “TEUM Leads”) to iPass, that iPass shall not negotiate directly or indirectly solicit or otherwise\nattempt to cause the TEUM Leads enter into any form of agreement with iPass without the consent of TEUM, which consent may be given\nor withheld in TEUM’s sole discretion. In addition to the foregoing, and without limitation thereof, iPass shall not circumvent or otherwise\nengage in any form of direct or indirect communications with any TEUM Leads without the prior written approval of TEUM, which\napproval may be given or withheld in TEUM’s sole discretion.\n[REMAINDER OF PAGE LEFT BLANK. SIGNATURES ON FOLLOWING PAGE.]\nPareteum Corporation | 100 Park Ave. | Suite 1600 | New York | NY 10017 | United States\nTel. +1 (212) 984.1096\nwww.Pareteum.com\nNYSE MKT: TEUM\n[SIGNATURE PAGE TO NON-DISCLOSURE AGREEMENT]\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the\ndate and year written above.\nPareteum Corporation\n/s/ Denis McCarthy\nName: Denis McCarthy\nTitle: SVP Corporate Developement\nDate: February 15, 2018\niPass:\n/s/ Darin Vickery\nName: Darin VIckery\nTitle: CFO\nDate: December 20, 2017\nEmail: ............................................\nPareteum Corporation | 100 Park Ave. | Suite 1600 | New York | NY 10017 | United States\nTel. +1 (212) 984.1096\nwww.Pareteum.com\nNYSE MKT: TEUM	EX-99.(D)(2) 2 tv508217_ex-d2.htm EXHIBIT (D)(2)\nExhibit (d)(2)\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (the “Agreement”) is made and entered into effective December 18, 2017 by and between Pareteum\nCorporation, a Delaware corporation having its corporate address at: 100 Park Avenue, Suite 1600, New York City, New York 10017, USA\n(“TEUM?”), and iPass Inc., a Delaware corporation having its address at: 3800 Bridge Parkway, Redwood Shores, California 94065, USA\n(“iPass”), either both of which may be hereinafter referred to as "the Party" or "the Parties."”\nWHEREAS\nThe Parties desire to discuss certain business transactions and to exchange information for the purpose of exploring a potential business\nrelationship for the benefit of the Parties and/or to sign a business contract that shall include confidential technical or business information of\neach Party or entitle each Party to exchange information for the execution of this business contract. In order to facilitate these discussions and in\norder for the Parties to receive from each other, either orally or in writing, certain technical and business information under terms that will protect\nthe confidential and proprietary nature of such information, the Parties have entered into this Agreement.\nNOW THEREFORE, THE PARTIES AGREE AS FOLLOWS;\n1. The Definition of "Confidential Information": The term "Confidential Information" shall mean all information disclosed by one Party to\nthe other Party, whether orally, in written, electronic or other format, and whether disclosed by a Party’s agents, principals, employees or\nrepresentatives, and whether to the other Party's agent's principals, employees or representatives. “Confidential Information” shall include,\nwithout limitation, all ideas improvements, inventions, methodologies, works and other innovations of any kind, authored, conceived,\ndeveloped, made or reduced to practice by the disclosing Party, whether or not eligible for copyright, patent, trademark, trade secret or other\nlegal protection (including, without limitation, formulas, processes, databases, mechanical and electronic hardware, electronic components,\ncomputers and their parts, computer programs and their documentation, encoding techniques, marketing and new product plans, production,\nprocesses, advertising, packaging and marketing techniques, marketing plans, product plans, technical plans, business strategies, strategic\nalliances and partners, financial information, engineering data, methodologies and processes, forecasts, personnel information, customer and\nprospective customer lists, trade secrets, product design, capabilities, specifications, the identify of potential and actual customers, and\nsuppliers and all documentation, materials and media provided by one Party to the other).\n2. Protection of "Confidential Information": In consideration of each Party's disclosure of Confidential Information to the other Party, each\nParty agrees with respect to the Confidential Information received from the other Party, that it:\n(a) shall maintain such Confidential Information in the strictest confidence;\nPareteum Corporation | 100 Park Ave. | Suite 1600 | New York | NY 10017 | United States\nTel. +1 (212) 984.1096\nwww.Pareteum.com\nNYSE MKT: TEUM\n(b) shall not disclose, transfer or otherwise make available any of such Confidential Information to any third party, unless such Confidential\nInformation must be disclosed for the purposes contemplated herein, or under legal compulsion to disclose any such Confidential\nInformation, in which event each Party shall, prior to such disclosure, obtain written consent from the other Party and obtain from the\nthird person a written agreement acknowledging the binding effect of these restrictions regarding the Confidential Information; and\n(c) shall not directly, indirectly or in concert with any person, use the Confidential Information for any purpose other than evaluating the\nprospective business relationship with the other Party in accordance with the introduction,\nEach Party shall take reasonable measures to protect the Confidential Information of the other Party. Those measures shall not be less than\nthe measures taken to protect the receiving Party’s own confidential information. Confidential Information of the other Party may be\nprovided to a Party’s employees only on a need-to-know basis, and prior to such provision, the Party will notify each employee to whom\nsuch disclosure is made that such Confidential Information is received in confidence and shall be kept in confidence by such employee.\nExcluded Information: This Agreement shall not apply to any information:\n(a) that has been or which becomes publicly known, through no wrongful act of either Party;\n(b) which is required to be disclosed in order to comply with applicable law or regulation or with any requirement imposed by judicial or\nadministrative process or any governmental or court order.\nNo Licenses or Warranties: Each Party’s Confidential Information and all rights thereto shall remain such Party’s sole property. Each Party\nrecognizes that the disclosure of Confidential Information by the disclosing Party shall not be construed as granting any rights, by license or\notherwise, concerning any Confidential Information, except as may be explicitly created by this Agreement. Each Party acknowledges that\nthe other Party’s Confidential Information includes valuable trade secrets. Neither Party has any obligation to disclose Confidential\nInformation to the other Party. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY,\nCOMPLETENESS, CONDITION, FITNESS and MERCHANTABILITY, OR PERFORMANCE OF ITS CONFIDENTIAL\nINFORMATION.\nRemedies: If either Party causes a disclosure of the other Party’s Confidential Information in breach of the terms of this Agreement, the\ndisclosing Party shall immediately report in writing the disclosure to the other Party and shall save, defend, indemnify and hold the non-\ndisclosing Party harmless from and against any and all liability and damages suffered by the non-disclosing Party arising therefrom. In\naddition to the foregoing and without limitation thereof, the disclosing Party shall cooperate in prosecuting any claims against third parties\nfor unauthorized use of any Confidential Information. Each Party acknowledges that unauthorized disclosure, use or disposition, whether\nactual or threatened, of any Confidential Information shall cause irreparable harm, loss of business and significant injury to the disclosing\nParty, the scope of which would be difficult to ascertain. Each Party agrees, therefore, that the disclosing Party has the right to obtain an\nimmediate injunction against any breach, threatened breach or attempted breach of this Agreement, in addition to any other remedies that\nmay be available at law, including without limitation, the recovery of expenses, costs and attorney’s fees arising out of such breach,\nthreatened breach or attempted breach.\nReturn of "Confidential Information": All Confidential Information shall be returned to the disclosing Parties promptly upon written\nrequest or, at the election of the disclosing Party, the Party that received the Confidential Information shall certify said information has been\ndestroyed and is no longer useable in any format.\nPareteum Corporation | 100 Park Ave. | Suite 1600 | New York | NY 10017 | United States\nTel. +1 (212) 984.1096\nwww.Pareteum.com\nNYSE MKT: TEUM\n10. 11. 12. 13. 14. 15. 16. Securities: Parties hereby acknowledge, covenant and agree that they are aware that United States securities laws may prohibit any person\nwho has material, non-public information about a company (including a Party) from purchasing or selling, directly or indirectly, securities of\na company (including the Parties), or from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities.\nProhibition of Disclosure: Neither Party hereto shall in any way or in any form distribute, disclose, publicize, issue press releases, or\nadvertise in any manner, including, but not limited to, making representation in court pleadings, except as required by law, the discussions\nthat gave rise to this Agreement, the discussions or negotiations covered by this Agreement, this Agreement or the Confidential Information\nprovided pursuant to this Agreement, without first obtaining the prior written consent of the other Party.\nTerm, Assignment and Survival: This Agreement shall be valid unless terminated by mutual written Agreement. Each Party’s obligations\nwith respect to the Confidential Information, including but not limited to, sections 2,4,5,6 shall survive the termination of this Agreement\nand/or return of all Confidential Information from the latter date of either termination or return of such information. Neither this Agreement\nnor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by either Party.\nGoverning Law; Jurisdiction: This Agreement shall be governed and construed in accordance with the laws of the State of New York,\nUnited States of America. In the event of any disputes arising under this Agreement, the undersigned Parties without regard to any principles\nof conflicts of laws and waiving any defenses of forum non conveniens hereby submit to the exclusive personal and subject matter\njurisdiction of the State and Federal Courts situated in the Borough of Manhattan, New York, New York.\nWaiver: No failure by either Party to exercise any rights arising from default by the other Party shall impair that right or constitute a waiver\nof it. No waiver by either Party of any covenant to be performed by the other shall constitute a waiver of any later breach of covenant.\nCounterparts: This Agreement may be executed in two signed copies, each of which when taken together shall be deemed but one original.\nSeverability: The validity or unenforceability of any provision or provisions of this Agreement shall no affect the validity or enforceability\nof any other provision hereof, which shall remain in full force and effect.\nEntire Agreement; Amendment: This Agreement contains the entire understandings between and among the Parties and supersedes any\nprior understanding and agreements among them respecting the subject matter hereof. No amendment to this Agreement shall be valid unless\nset forth in writing and signed by both Parties.\nNotices: All notices required or permitted hereunder shall be in writing and shall be sent by nationally recognized overnight courier service,\nor by registered or certified mail, to the addresses stated in the heading of this Agreement. Unless otherwise specified, notices shall be\ndeemed given when the return receipt is received.\nNon-solicitation/Non-circumvention. iPass understands, acknowledges and agrees, AS A MATERIAL INDUCEMENT FOR TEUM TO\nMAKE AND ENTER INTO THIS AGREEMENT, that with respect to any customer or prospective customer opportunities that are\nidentified by TEUM (collectively, the “TEUM Leads”) to iPass, that iPass shall not negotiate directly or indirectly solicit or otherwise\nattempt to cause the TEUM Leads enter into any form of agreement with iPass without the consent of TEUM, which consent may be given\nor withheld in TEUM’s sole discretion. In addition to the foregoing, and without limitation thereof, iPass shall not circumvent or otherwise\nengage in any form of direct or indirect communications with any TEUM Leads without the prior written approval of TEUM, which\napproval may be given or withheld in TEUM’s sole discretion.\n[REMAINDER OF PAGE LEFT BLANK. SIGNATURES ON FOLLOWING PAGE.]\nPareteum Corporation | 100 Park Ave. | Suite 1600 | New York | NY 10017 | United States\nTel. +1 (212) 984.1096\nwww.Pareteum.com\nNYSE MKT: TEUM\n[SIGNATURE PAGE TO NON-DISCLOSURE AGREEMENT]\nIN WITNESS WHEREQF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the\ndate and year written above.\nPareteum Corporation iPass:\n/s/ Denis McCarthy /s/ Darin Vickery\nName: Denis McCarthy Name: Darin VIckery\nTitle: SVP Corporate Developement Title: CFO\nDate: February 15, 2018 Date: December 20, 2017\nEmail: coooviiiiiiiieieieree\nPareteum Corporation | 100 Park Ave. | Suite 1600 | New York | NY 10017 | United States\nTel. +1 (212) 984.1096\nwww.Pareteum.com\nNYSE MKT: TEUM	EX-99.(D)(2) 2 tv508217_ex-d2.htm EXHIBIT (D)(2)\nExhibit (d)(2)\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (the "Agreement") is made and entered into effective December 18, 2017 by and between Pareteum\nCorporation, a Delaware corporation having its corporate address at: 100 Park Avenue, Suite 1600, New York City, New York 10017, USA\n("TEUM"), and iPass Inc., a Delaware corporation having its address at: 3800 Bridge Parkway, Redwood Shores, California 94065, USA\n("iPass"), either both of which may be hereinafter referred to as "the Party" or "the Parties."\nWHEREAS\nThe Parties desire to discuss certain business transactions and to exchange information for the purpose of exploring a potential business\nrelationship for the benefit of the Parties and/or to sign a business contract that shall include confidential technical or business information of\neach\nParty or entitle each Party to exchange information for the execution of this business contract. In order to facilitate these discussions and in\norder for the Parties to receive from each other, either orally or in writing, certain technical and business information under terms that will protect\nthe confidential and proprietary nature of such information, the Parties have entered into this Agreement.\nNOW THEREFORE, THE PARTIES AGREE AS FOLLOWS;\n1.\nThe\nDefinition\nof\n"Confidential\nInformation":\nThe\nterm\n"Confidential\nInformation"\nshall\nmean\nall\ninformation\ndisclosed\nby\none\nParty\nto\nthe other Party, whether orally, in written, electronic or other format, and whether disclosed by a Party's agents, principals, employees or\nrepresentatives, and whether to the other Party's agent's principals, employees or representatives. "Confidential Information" shall include,\nwithout limitation, all ideas improvements, inventions, methodologies, works and other innovations of any kind, authored, conceived,\ndeveloped, made or reduced to practice by the disclosing Party, whether or not eligible for copyright, patent, trademark, trade secret or other\nlegal protection (including, without limitation, formulas, processes, databases, mechanical and electronic hardware, electronic components,\ncomputers and their parts, computer programs and their documentation, encoding techniques, marketing and new product plans, production,\nprocesses, advertising, packaging and marketing techniques, marketing plans, product plans, technical plans, business strategies, strategic\nalliances and partners, financial information, engineering data, methodologies and processes, forecasts, personnel information, customer and\nprospective customer lists, trade secrets, product design, capabilities, specifications, the identify of potential and actual customers, and\nsuppliers and all documentation, materials and media provided by one Party to the other).\n2.\nProtection of "Confidential Information": In consideration of each Party's disclosure of Confidential Information to the other Party, each\nParty agrees with respect to the Confidential Information received from the other Party, that it:\n(a) shall maintain such Confidential Information in the strictest confidence;\nPareteum Corporation 100 Park Ave. Suite 1600 New York NY 10017 United States\nTel. +1 (212) 984.1096\nwww.Pareteum.com\nNYSE MKT: TEUM\n(b) shall not disclose, transfer or otherwise make available any of such Confidential Information to any third party, unless such Confidential\nInformation must be disclosed for the purposes contemplated herein, or under legal compulsion to disclose any such Confidential\nInformation,\nin\nwhich\nevent\neach\nParty\nshall,\nprior\nto\nsuch\ndisclosure,\nobtain\nwritten\nconsent\nfrom\nthe\nother\nParty\nand\nobtain\nfrom\nthe\nthird person a written agreement acknowledging the binding effect of these restrictions regarding the Confidentia Information; and\n(c)\nshall not directly, indirectly or in concert with any person, use the Confidential Information for any purpose other than evaluating the\nprospective business relationship with the other Party in accordance with the introduction,\nEach Party shall take reasonable measures to protect the Confidentia Information of the other Party. Those measures shall not be less than\nthe\nmeasures taken to protect the receiving Party's own confidential information. Confidential Information of the other Party may be\nprovided to a Party's employees only on a need-to-know basis, and prior to such provision, the Party will notify each employee to whom\nsuch disclosure is made that such Confidential Information is received in confidence and shall be kept in confidence by such employee.\n3.\nExcluded Information: This Agreement shall not apply to any information:\n(a) that has been or which becomes publicly known, through no wrongful act of either Party;\n(b) which is required to be disclosed in order to comply with applicable law or regulation or with any requirement imposed by judicial or\nadministrative process or any governmental or court order.\n4.\nNo Licenses or Warranties: Each Party's Confidential Information and all rights thereto shall remain such Party's sole property. Each Party\nrecognizes that the disclosure of Confidential Information by the disclosing Party shall not be construed as granting any rights, by license or\notherwise, concerning any Confidential Information, except as may be explicitly created by this Agreement. Each Party acknowledges\nthat\nthe other Party's Confidential Information includes valuable trade secrets. Neither Party has any obligation to disclose Confidential\nInformation to the other Party. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY,\nCOMPLETENESS, CONDITION, FITNESS and MERCHANTABILITY, OR PERFORMANCE OF ITS CONFIDENTIAL\nINFORMATION.\n5.\nRemedies: If either Party causes a disclosure of the other Party's Confidential Information in breach of the terms of this Agreement, the\ndisclosing Party shall immediately report in writing the disclosure to the other Party and shall save, defend, indemnify and hold the non-\ndisclosing Party harmless from and against any and all liability and damages suffered by the non-disclosing Party arising therefrom. In\naddition to the foregoing and without limitation thereof, the disclosing Party shall cooperate in prosecuting any claims against third parties\nfor unauthorized use of any Confidential Information Each Party acknowledges that unauthorized disclosure, use or disposition, whether\nactual or threatened, of any Confidential Information shall cause irreparable harm, loss of business and significant injury to the disclosing\nParty, the scope of which would be difficult to ascertain. Each Party agrees, therefore, that the disclosing Party has the right to obtain an\nimmediate injunction against any breach, threatened breach or attempted breach of this Agreement, in addition to any other remedies that\nmay be available at law, including without limitation, the recovery of expenses, costs and attorney's fees arising out of such breach,\nthreatened breach or attempted breach.\n6.\nReturn of "Confidential Information": All Confidential Information shall be returned to the disclosing Parties promptly upon written\nrequest or, at the election of the disclosing Party, the Party that received the Confidential Information shall certify said information has been\ndestroyed and is no longer useable in any format.\nPareteum Corporation 100 Park Ave. Suite 1600 New York NY 10017 United States\nTel. +1 (212) 984.1096\nwww.Pareteum.com\nNYSE MKT: TEUM\n7. Securities: Parties hereby acknowledge, covenant and agree that they are aware that United States securities laws may prohibit any person\nwho has material, non-public information about a company (including a Party) from purchasing or selling, directly or indirectly, securities of\na\ncompany (including the Parties), or from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities.\n8. Prohibition of Disclosure: Neither Party hereto shall in any way or in any form distribute, disclose, publicize, issue press releases, or\nadvertise in any manner, including, but not limited to, making representation in court pleadings, except as required by law, the discussions\nthat gave rise to this Agreement, the discussions or negotiations covered by this Agreement, this Agreement or the Confidential Information\nprovided pursuant to this Agreement, without first obtaining the prior written consent of the other Party.\n9.\nTerm, Assignment and Survival: This Agreement shall be valid unless terminated by mutual written Agreement. Each Party's obligations\nwith respect to the Confidential Information, including but not limited to, sections 2,4,5,6 shall survive the termination of this Agreement\nand/or return of all Confidential Information from the latter date of either termination or return of such information. Neither this Agreement\nnor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by either Party.\n10. Governing Law; Jurisdiction: This Agreement shall be governed and construed in accordance with the laws of the State of New York,\nUnited States of America. In the event of any disputes arising under this Agreement, the undersigned Parties without regard to any principles\nof\nconflicts of laws and waiving any defenses of forum non conveniens hereby submit to the exclusive personal and subject matter\njurisdiction of the State and Federal Courts situated in the Borough of Manhattan, New York, New York.\n11. Waiver: No failure by either Party to exercise any rights arising from default by the other Party shall impair that right or constitute a waiver\nof it. No waiver by either Party of any covenant to be performed by the other shall constitute a waiver of any later breach of covenant.\n12. Counterparts: This Agreement may be executed in two signed copies, each of which when taken together shall be deemed but one original.\n13. Severability: The validity or unenforceability of any provision or provisions of this Agreement shall no affect the validity or enforceability\nof any other provision hereof, which shall remain in full force and effect.\n14.\nEntire Agreement; Amendment: This Agreement contains the entire understandings between and among the Parties and supersedes any\nprior understanding and agreements among them respecting the subject matter hereof. No amendment to this Agreement shall be valid unless\nset forth in writing and signed by both Parties.\n15. Notices: All notices required or permitted hereunder shall be in writing and shall be sent by nationally recognized overnight courier service,\nor by registered or certified mail, to the addresses stated in the heading of this Agreement. Unless otherwise specified, notices shall be\ndeemed given when the return receipt is received.\n16. Non-solicitation/Non-circumvention. iPass understands, acknowledges and agrees, AS A MATERIAL INDUCEMENT FOR TEUM TO\nMAKE AND ENTER INTO THIS AGREEMENT, that with respect to any customer or prospective customer opportunities that are\nidentified by TEUM (collectively, the "TEUM Leads") to iPass, that iPass shall not negotiate directly or indirectly solicit or otherwise\nattempt to cause the TEUM Leads enter into any form of agreement with iPass without the consent of TEUM, which consent may be given\nor withheld in TEUM's sole discretion. In addition to the foregoing, and without limitation thereof, iPass shall not circumvent or otherwise\nengage in any form of direct or indirect communications with any TEUM Leads without the prior written approval of TEUM, which\napproval may be given or withheld in TEUM's sole discretion.\n[REMAINDER OF PAGE LEFT BLANK. SIGNATURES ON FOLLOWING PAGE.]\nPareteum Corporation 100 Park Ave. Suite 1600 New York NY 10017 United States\nTel. +1 (212) 984.1096\nwww.Pareteum.com\nNYSE MKT: TEUM\n[SIGNATURE PAGE TO NON-DISCLOSURE AGREEMENT]\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the\ndate and year written above.\nPareteum Corporation\niPass:\n/s/ Denis McCarthy\n/s/ Darin Vickery\nName: Denis McCarthy\nName: Darin VIckery\nTitle: SVP Corporate Developement\nTitle: CFO\nDate: February 15, 2018\nDate: December 20, 2017\nEmail:\nPareteum Corporation 100 Park Ave. I Suite 1600 I New York I NY 10017 United States\nTel. +1 (212) 984.1096\nww.Pareteum.com\nNYSE MKT: TEUM	EX-99 .(D)(2) 2 tv508217_ex-d2.htm EXHIBIT (D)(2)\nExhibit (d)(2)\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (the “Agreement”) is made and entered into effective December 18, 2017 by and between Pareteum\nCorporation, a Delaware corporation having its corporate address at: 100 Park Avenue, Suite 1600, New York City, New York 10017, USA\n(“TEUM”), and iPass Inc., a Delaware corporation having its address at: 3800 Bridge Parkway, Redwood Shores, California 94065, USA\n(“iPass”), either both of which may be hereinafter referred to as "the Party" or "the Parties."\nWHEREAS\nThe Parties desire to discuss certain business transactions and to exchange information for the purpose of exploring a potential business\nrelationship for the benefit of the Parties and/or to sign a business contract that shall include confidential technical or business information of\neach Party or entitle each Party to exchange information for the execution of this business contract. In order to facilitate these discussions and in\norder for the Parties to receive from each other, either orally or in writing, certain technical and business information under terms that will protect\nthe confidential and proprietary nature of such information, the Parties have entered into this Agreement.\nNOW THEREFORE, THE PARTIES AGREE AS FOLLOWS;\n1. The Definition of "Confidential Information": The term "Confidential Information" shall mean all information disclosed by one Party to\nthe other Party, whether orally, in written, electronic or other format, and whether disclosed by a Party’s agents, principals, employees or\nrepresentatives, and whether to the other Party's agent's principals, employees or representatives. “Confidential Information” shall include,\nwithout limitation, all ideas improvements, inventions, methodologies, works and other innovations of any kind, authored, conceived,\ndeveloped, made or reduced to practice by the disclosing Party, whether or not eligible for copyright, patent, trademark, trade secret or other\nlegal protection (including, without limitation, formulas, processes, databases, mechanical and electronic hardware, electronic components,\ncomputers and their parts, computer programs and their documentation, encoding techniques, marketing and new product plans, production,\nprocesses, advertising, packaging and marketing techniques, marketing plans, product plans, technical plans, business strategies, strategic\nalliances and partners, financial information, engineering data, methodologies and processes, forecasts, personnel information, customer and\nprospective customer lists, trade secrets, product design, capabilities, specifications, the identify of potential and actual customers, and\nsuppliers and all documentation, materials and media provided by one Party to the other).\n2. Protection of "Confidential Information": In consideration of each Party's disclosure of Confidential Information to the other Party, each\nParty agrees with respect to the Confidential Information received from the other Party, that it:\n(a) shall maintain such Confidential Information in the strictest confidence;\nPareteum Corporation | 100 Park Ave. | Suite 1600 | New York | NY 10017 | United States\nTel. +1 (212) 984.1096\nwww.Pareteum.com\nNYSE MKT: TEUM\n(b) shall not disclose, transfer or otherwise make available any of such Confidential Information to any third party, unless such Confidential\nInformation must be disclosed for the purposes contemplated herein, or under legal compulsion to disclose any such Confidential\nInformation, in which event each Party shall, prior to such disclosure, obtain written consent from the other Party and obtain from the\nthird person a written agreement acknowledging the binding effect of these restrictions regarding the Confidential Information; and\n(c) shall not directly, indirectly or in concert with any person, use the Confidential Information for any purpose other than evaluating the\nprospective business relationship with the other Party in accordance with the introduction.\nEach Party shall take reasonable measures to protect the Confidential Information of the other Party. Those measures shall not be less than\nthe measures taken to protect the receiving Party’s own confidential information. Confidential Information of the other Party may be\nprovided to a Party’s employees only on a need-to-know basis, and prior to such provision, the Party will notify each employee to whom\nsuch disclosure is made that such Confidential Information is received in confidence and shall be kept in confidence by such employee.\n3. Excluded Information: This Agreement shall not apply to any information:\n(a) that has been or which becomes publicly known, through no wrongful act of either Party;\n(b) which is required to be disclosed in order to comply with applicable law or regulation or with any requirement imposed by judicial or\nadministrative process or any governmental or court order.\n4. No Licenses or Warranties: Each Party’s Confidential Information and all rights thereto shall remain such Party’s sole property. Each Party\nrecognizes that the disclosure of Confidential Information by the disclosing Party shall not be construed as granting any rights, by license or\notherwise, concerning any Confidential Information, except as may be explicitly created by this Agreement. Each Party acknowledges that\nthe other Party’s Confidential Information includes valuable trade secrets. Neither Party has any obligation to disclose Confidential\nInformation to the other Party. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY,\nCOMPLETENESS, CONDITION, FITNESS and MERCHANTABILITY, OR PERFORMANCE OF ITS CONFIDENTIAL\nINFORMATION.\n5. Remedies: If either Party causes a disclosure of the other Party’s Confidential Information in breach of the terms of this Agreement, the\ndisclosing Party shall immediately report in writing the disclosure to the other Party and shall save, defend, indemnify and hold the non-\ndisclosing Party harmless from and against any and all liability and damages suffered by the non-disclosing Party arising therefrom. In\naddition to the foregoing and without limitation thereof, the disclosing Party shall cooperate in prosecuting any claims against third parties\nfor unauthorized use of any Confidential Information. Each Party acknowledges that unauthorized disclosure, use or disposition, whether\nactual or threatened, of any Confidential Information shall cause irreparable harm, loss of business and significant injury to the disclosing\nParty, the scope of which would be difficult to ascertain. Each Party agrees, therefore, that the disclosing Party has the right to obtain an\nimmediate injunction against any breach, threatened breach or attempted breach of this Agreement, in addition to any other remedies that\nmay be available at law, including without limitation, the recovery of expenses, costs and attorney’s fees arising out of such breach,\nthreatened breach or attempted breach.\n6. Return of "Confidential Information": All Confidential Information shall be returned to the disclosing Parties promptly upon written\nrequest or, at the election of the disclosing Party, the Party that received the Confidential Information shall certify said information has been\ndestroyed and is no longer useable in any format.\nPareteum Corporation | 100 Park Ave. | Suite 1600 | New York | NY 10017 | United States\nTel. +1 (212) 984.1096\nwww.Pareteum.com\nNYSE MKT: TEUM\n7. Securities: Parties hereby acknowledge, covenant and agree that they are aware that United States securities laws may prohibit any person\nwho has material, non-public information about a company (including a Party) from purchasing or selling, directly or indirectly, securities of\na company (including the Parties), or from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities.\n8. Prohibition of Disclosure: Neither Party hereto shall in any way or in any form distribute, disclose, publicize, issue press releases, or\nadvertise in any manner, including, but not limited to, making representation in court pleadings, except as required by law, the discussions\nthat gave rise to this Agreement, the discussions or negotiations covered by this Agreement, this Agreement or the Confidential Information\nprovided pursuant to this Agreement, without first obtaining the prior written consent of the other Party.\n9. Term, Assignment and Survival: This Agreement shall be valid unless terminated by mutual written Agreement. Each Party’s obligations\nwith respect to the Confidential Information, including but not limited to, sections 2,4,5,6 shall survive the termination of this Agreement\nand/or return of all Confidential Information from the latter date of either termination or return of such information. Neither this Agreement\nnor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by either Party.\n10. Governing Law; Jurisdiction: This Agreement shall be governed and construed in accordance with the laws of the State of New York,\nUnited States of America. In the event of any disputes arising under this Agreement, the undersigned Parties without regard to any principles\nof conflicts of laws and waiving any defenses of forum non conveniens hereby submit to the exclusive personal and subject matter\njurisdiction of the State and Federal Courts situated in the Borough of Manhattan, New York, New York.\n11. Waiver: No failure by either Party to exercise any rights arising from default by the other Party shall impair that right or constitute a waiver\nof it. No waiver by either Party of any covenant to be performed by the other shall constitute a waiver of any later breach of covenant.\n12. Counterparts: This Agreement may be executed in two signed copies, each of which when taken together shall be deemed but one original.\n13. Severability: The validity or unenforceability of any provision or provisions of this Agreement shall no affect the validity or enforceability\nof any other provision hereof, which shall remain in full force and effect.\n14. Entire Agreement; Amendment: This Agreement contains the entire understandings between and among the Parties and supersedes any\nprior understanding and agreements among them respecting the subject matter hereof. No amendment to this Agreement shall be valid unless\nset forth in writing and signed by both Parties.\n15. Notices: All notices required or permitted hereunder shall be in writing and shall be sent by nationally recognized overnight courier service,\nor by registered or certified mail, to the addresses stated in the heading of this Agreement. Unless otherwise specified, notices shall be\ndeemed given when the return receipt is received.\n16. Non-solicitation/Non-circumvention. iPass understands, acknowledges and agrees, AS A MATERIAL INDUCEMENT FOR TEUM TO\nMAKE AND ENTER INTO THIS AGREEMENT, that with respect to any customer or prospective customer opportunities that are\nidentified by TEUM (collectively, the “TEUM Leads”) to iPass, that iPass shall not negotiate directly or indirectly solicit or otherwise\nattempt to cause the TEUM Leads enter into any form of agreement with iPass without the consent of TEUM, which consent may be given\nor withheld in TEUM’s sole discretion. In addition to the foregoing, and without limitation thereof, iPass shall not circumvent or otherwise\nengage in any form of direct or indirect communications with any TEUM Leads without the prior written approval of TEUM, which\napproval may be given or withheld in TEUM’s sole discretion.\n[REMAINDER OF PAGE LEFT BLANK. SIGNATURES ON FOLLOWING PAGE.]\nPareteum Corporation | 100 Park Ave. | Suite 1600 | New York | NY 10017 | United States\nTel. +1 (212) 984.1096\nwww.Pareteum.com\nNYSE MKT: TEUM\n[SIGNATURE PAGE TO NON-DISCLOSURE AGREEMENT]\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the\ndate and year written above.\nPareteum Corporation\n/s/ Denis McCarthy\nName: Denis McCarthy\nTitle: SVP Corporate Developement\nDate: February 15, 2018\niPass:\n/s/ Darin Vickery\nName: Darin VIckery\nTitle: CFO\nDate: December 20, 2017\nEmail: ............................................\nPareteum Corporation | 100 Park Ave. | Suite 1600 | New York | NY 10017 | United States\nTel. +1 (212) 984.1096\nwww.Pareteum.com\nNYSE MKT: TEUM
72aad2a6891da0555ff6ad0b1166f0d2.pdf	effective_date jurisdiction party term	EX-99.(D)(6) 12 dex99d6.htm MUTUAL CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nSPRINT CORPORATION\nCharles R. Wunsch\nLaw, Corporate Transactions\nVice President\n6200 Sprint Parkway\nOverland Park, Kansas 66251\nVoice 913 794 1496\nFax 913 523 9802\ncharles.wunsch@mail.sprint.com\nJuly 5, 2005\nUS Unwired Inc.\n901 Lakeshore Drive\nLake Charles, Louisiana 70601\nAttention: General Counsel\nMutual Confidentiality Agreement\nLadies and Gentlemen:\nIn connection with a possible transaction (the “Proposed Transaction”) between Sprint Corporation (“Sprint”) and US Unwired Inc. (“USU”),\neach party (the “Disclosing Party”) may disclose and deliver to the other party (the “Receiving Party”) certain information about the Disclosing\nParty and its properties, employees, financial condition, assets, liabilities, businesses, operations and prospects. All such information furnished by\nthe Disclosing Party or its Representatives (as defined below), whether oral or written, and regardless of the manner in which it is furnished, is\nreferred to in this letter agreement as “Proprietary Information”. Proprietary Information includes any and all memoranda, notes, summaries,\nanalyses, extracts, compilations, studies or other documents or material whatsoever prepared by the Receiving Party or any of its Representatives\nbased on the Proprietary Information of the Disclosing Party. Proprietary Information does not include, however, information that (a) is or becomes\ngenerally available to or known by the public other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this\nletter agreement, (b) is or becomes available to the Receiving Party or its Representatives on a non-confidential basis prior to its disclosure by the\nDisclosing Party or its Representatives or (c) becomes available to the Receiving Party on a non-confidential basis from a person (other than the\nDisclosing Party or its Representatives) who is not known by Scotland to bound by a confidentiality agreement with the Disclosing Party. As used in\nthis letter agreement, (i) the term “Representative” means, as to any person, such person’s affiliates and controlling persons and its and their\ndirectors, officers, employees, agents and advisors (including financial advisors, legal counsel and accountants) and (ii) the term “person” will be\nbroadly interpreted to include any corporation, company, partnership, other entity or individual.\nUnless otherwise agreed to in writing by the other party, each party agrees (a) except as required by law or regulatory authority and subject to\nthe fourth full paragraph on page 2, to keep all Proprietary Information of the other party confidential and not to disclose or reveal any such\nProprietary Information to any person other than its Representatives who are participating in the\nevaluation of the Proposed Transaction and (b) not to use any such Proprietary Information for any purpose other than solely to evaluate the\nProposed Transaction.\nExcept as required by law or regulatory authority, each party agrees not to disclose to any person (other than those of its Representatives who\nare participating in the evaluation of the Proposed Transaction) any information about the Proposed Transaction, or the terms or conditions or any\nother facts relating thereto, including the fact that discussions are taking place with respect thereto, or the status thereof, or the fact that Proprietary\nInformation has been made available to the other party or any of its Representatives. If such disclosure is required by law or regulatory authority,\nsuch party will use reasonable best efforts to notify and consult with the other party in advance of such disclosure.\nEach party hereby acknowledges that such party is aware, and that such party will advise its Representatives who are informed as to the\nmatters that are the subject of this letter agreement, that the United States securities laws prohibit any person who has received from an issuer\nmaterial, non-public information concerning the matters that are the subject of this letter agreement from purchasing or selling securities of such\nissuer or from communication of such information to any other person under circumstances in which it is reasonably foreseeable that such person is\nlikely to purchase or sell such securities.\nEach party will cause its Representatives to observe the terms of this letter agreement and will be responsible for any breach of or non-\ncompliance with the terms of this letter agreement by any of its Representatives.\nIn the event that the Receiving Party or any of its Representatives is requested or becomes legally compelled (by oral questions,\ninterrogatories, requests for information or documents, subpoenas, civil investigative demand or similar process) to disclose any of the Proprietary\nInformation of the Disclosing Party, the Receiving Party will, as soon as reasonably practicable, provide the Disclosing Party with telephonic notice\n(followed by prompt written notice) so that the Disclosing Party may seek a protective order or other appropriate remedy, including appeals, or\nwaive compliance with the provisions of this letter agreement. In the event that such protective order or other remedy is not obtained, or that the\nDisclosing Party waives compliance with the provisions of this letter agreement, the Receiving Party will furnish only that portion of the Proprietary\nInformation of the Disclosing Party or any documents or memoranda based thereon that is legally required, and otherwise exercise reasonable best\nefforts to obtain reliable assurance that confidential treatment will be accorded to such materials.\nEach party acknowledges that neither the other party nor any of its Representatives makes any express or implied representation or warranty as\nto the accuracy or completeness of any Proprietary Information of the other party, and such party agrees that none of such persons will have any\nliability to such party or any of its Representatives relating to or arising from the use of any Proprietary Information by such party or its\nRepresentatives or for any errors therein or omissions therefrom except as contained in an agreement relating to the Proposed Transaction, when and\nif executed and delivered by the applicable parties thereto. Each party also agrees that it is entitled to rely solely on such representations and\nwarranties regarding Proprietary Information of the other party as may be made to it in any such agreement relating to the Proposed Transaction,\nsubject to the terms and conditions of such agreement.\nIf either party notifies the other party that it does not wish to proceed with the Proposed Transaction, each party shall promptly destroy all\nProprietary Information of the other party in\n-2-\nits possession, and cause the destruction of all Proprietary Information of the other party in the possession of any of its Representatives, and will not\nretain any copies or other reproductions in whole or in part of such material. Such destruction referred to in this paragraph by each party will be\nsupervised by an authorized officer of such party. Such authorized officer will promptly certify such destruction to the other party in writing.\nEach party agrees that, in consideration of the other party furnishing Proprietary Information to the such party, for a period of 12 months from\nthe date of this letter agreement, such party’s employees who are participating in the evaluation of the Proposed Transaction will not, and such party\nwill cause such employees not to, solicit any employee of the other party with whom such employees had contact or who become known to such\nemployees in connection with the evaluation of the Proposed Transaction; provided, however, that the foregoing prohibition shall not apply to any\nemployee of the other party who voluntarily and independently solicits an offer of employment from such party or responds to a general\nadvertisement or similar solicitation program by such party.\nEach party agrees that money damages would not be a sufficient remedy for any breach of this letter agreement and that each party will be\nentitled to equitable relief, including injunction and specific performance, in the event of any breach of any provision of this letter agreement, in\naddition to all other remedies available at law or in equity, including monetary damages.\nIf is further understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder will operate as\na waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or\nprivilege hereunder.\nNothing contained in this letter agreement will be deemed to constitute, by implication or otherwise, any agreement or understanding to\nproceed with the Proposed Transaction or any other business arrangement or transaction. Each party understands and agrees that no contract or\nagreement providing for any transaction involving the parties shall be deemed to exist between the parties unless and until an agreement has been\nexecuted and delivered by the applicable parties thereto.\nThis letter agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts executed\nin and to be performed in the state without regard to conflicts of law principles. Each party hereby irrevocably and unconditionally submits to the\njurisdiction of any Delaware state or federal court sitting in Delaware in any action or proceeding arising out of or relating to this letter agreement, or\nfor recognition or enforcement of any judgment. Each party agrees that it will not institute or seek to institute any action or proceeding arising out of\nor relating to this letter agreement (other than an action or proceeding seeking enforcement of a judgment) in any forum other than a Delaware state\nor federal court sitting in Delaware. Each party hereby consents that legal process in any action or proceeding may be served upon such party by\nserving it by mail at the address set forth above for such party or at such other address as such party may designate in writing from time to time.\nThis letter agreement contains the entire agreement between Sprint and USU concerning the subject matter hereof, and no modifications of this\nletter agreement or waiver of the terms and conditions hereof will be binding upon Sprint or USU, unless approved in writing by each party.\n-3-\nThis letter agreement will terminate 12 months after the date first above written.\nPlease confirm your acceptance and agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter\nenclosed herewith.\nVery truly yours,\nSPRINT CORPORATION\nBy /s/ Charles R. Wunsch\nName: Charles R. Wunsch\nTitle: VP\nAccepted and Agreed\nas of the date first above written:\nUS UNWIRED INC.\nBy /s/ Jerry E. Vaughn\nName: Jerry E. Vaughn\nTitle: CFO\n-4-	EX-99.(D)(6) 12 dex99d6.htm MUTUAL CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nSPRINT CORPORATION\nCharles R. Wunsch Law, Corporate Transactions\nVice President 6200 Sprint Parkway\nOverland Park, Kansas 66251\nVoice 913 794 1496\nFax 913 523 9802\ncharles.wunsch@mail.sprint.com\n \nJuly 5, 2005\nUS Unwired Inc.\n901 Lakeshore Drive\nLake Charles, Louisiana 70601\nAttention: General Counsel\nMutual Confidentiality Agreement\nLadies and Gentlemen:\nIn connection with a possible transaction (the “Proposed Transaction”) between Sprint Corporation (“Sprint”) and US Unwired Inc. (“USU”),\neach party (the “Disclosing Party”) may disclose and deliver to the other party (the “Receiving Party™) certain information about the Disclosing\nParty and its properties, employees, financial condition, assets, liabilities, businesses, operations and prospects. All such information furnished by\nthe Disclosing Party or its Representatives (as defined below), whether oral or written, and regardless of the manner in which it is furnished, is\nreferred to in this letter agreement as “Proprietary Information”. Proprietary Information includes any and all memoranda, notes, summaries,\nanalyses, extracts, compilations, studies or other documents or material whatsoever prepared by the Receiving Party or any of its Representatives\nbased on the Proprietary Information of the Disclosing Party. Proprietary Information does not include, however, information that (a) is or becomes\ngenerally available to or known by the public other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this\nletter agreement, (b) is or becomes available to the Receiving Party or its Representatives on a non-confidential basis prior to its disclosure by the\nDisclosing Party or its Representatives or (c) becomes available to the Receiving Party on a non-confidential basis from a person (other than the\nDisclosing Party or its Representatives) who is not known by Scotland to bound by a confidentiality agreement with the Disclosing Party. As used in\nthis letter agreement, (i) the term “Representative” means, as to any person, such person’s affiliates and controlling persons and its and their\ndirectors, officers, employees, agents and advisors (including financial advisors, legal counsel and accountants) and (ii) the term “person” will be\nbroadly interpreted to include any corporation, company, partnership, other entity or individual.\nUnless otherwise agreed to in writing by the other party, each party agrees (a) except as required by law or regulatory authority and subject to\nthe fourth full paragraph on page 2, to keep all Proprietary Information of the other party confidential and not to disclose or reveal any such\nProprietary Information to any person other than its Representatives who are participating in the\nevaluation of the Proposed Transaction and (b) not to use any such Proprietary Information for any purpose other than solely to evaluate the\nProposed Transaction.\nExcept as required by law or regulatory authority, each party agrees not to disclose to any person (other than those of its Representatives who\nare participating in the evaluation of the Proposed Transaction) any information about the Proposed Transaction, or the terms or conditions or any\nother facts relating thereto, including the fact that discussions are taking place with respect thereto, or the status thereof, or the fact that Proprietary\nInformation has been made available to the other party or any of its Representatives. If such disclosure is required by law or regulatory authority,\nsuch party will use reasonable best efforts to notify and consult with the other party in advance of such disclosure.\nEach party hereby acknowledges that such party is aware, and that such party will advise its Representatives who are informed as to the\nmatters that are the subject of this letter agreement, that the United States securities laws prohibit any person who has received from an issuer\nmaterial, non-public information concerning the matters that are the subject of this letter agreement from purchasing or selling securities of such\nissuer or from communication of such information to any other person under circumstances in which it is reasonably foreseeable that such person is\nlikely to purchase or sell such securities.\nEach party will cause its Representatives to observe the terms of this letter agreement and will be responsible for any breach of or non-\ncompliance with the terms of this letter agreement by any of its Representatives.\nIn the event that the Receiving Party or any of its Representatives is requested or becomes legally compelled (by oral questions,\ninterrogatories, requests for information or documents, subpoenas, civil investigative demand or similar process) to disclose any of the Proprietary\nInformation of the Disclosing Party, the Receiving Party will, as soon as reasonably practicable, provide the Disclosing Party with telephonic notice\n(followed by prompt written notice) so that the Disclosing Party may seek a protective order or other appropriate remedy, including appeals, or\nwaive compliance with the provisions of this letter agreement. In the event that such protective order or other remedy is not obtained, or that the\nDisclosing Party waives compliance with the provisions of this letter agreement, the Receiving Party will furnish only that portion of the Proprietary\nInformation of the Disclosing Party or any documents or memoranda based thereon that is legally required, and otherwise exercise reasonable best\nefforts to obtain reliable assurance that confidential treatment will be accorded to such materials.\nEach party acknowledges that neither the other party nor any of its Representatives makes any express or implied representation or warranty as\nto the accuracy or completeness of any Proprietary Information of the other party, and such party agrees that none of such persons will have any\nliability to such party or any of its Representatives relating to or arising from the use of any Proprietary Information by such party or its\nRepresentatives or for any errors therein or omissions therefrom except as contained in an agreement relating to the Proposed Transaction, when and\nif executed and delivered by the applicable parties thereto. Each party also agrees that it is entitled to rely solely on such representations and\nwarranties regarding Proprietary Information of the other party as may be made to it in any such agreement relating to the Proposed Transaction,\nsubject to the terms and conditions of such agreement.\nIf either party notifies the other party that it does not wish to proceed with the Proposed Transaction, each party shall promptly destroy all\nProprietary Information of the other party in\n-\nits possession, and cause the destruction of all Proprietary Information of the other party in the possession of any of its Representatives, and will not\nretain any copies or other reproductions in whole or in part of such material. Such destruction referred to in this paragraph by each party will be\nsupervised by an authorized officer of such party. Such authorized officer will promptly certify such destruction to the other party in writing.\nEach party agrees that, in consideration of the other party furnishing Proprietary Information to the such party, for a period of 12 months from\nthe date of this letter agreement, such party’s employees who are participating in the evaluation of the Proposed Transaction will not, and such party\nwill cause such employees not to, solicit any employee of the other party with whom such employees had contact or who become known to such\nemployees in connection with the evaluation of the Proposed Transaction; provided, however, that the foregoing prohibition shall not apply to any\nemployee of the other party who voluntarily and independently solicits an offer of employment from such party or responds to a general\nadvertisement or similar solicitation program by such party.\nEach party agrees that money damages would not be a sufficient remedy for any breach of this letter agreement and that each party will be\nentitled to equitable relief, including injunction and specific performance, in the event of any breach of any provision of this letter agreement, in\naddition to all other remedies available at law or in equity, including monetary damages.\nIf is further understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder will operate as\na waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or\nprivilege hereunder.\nNothing contained in this letter agreement will be deemed to constitute, by implication or otherwise, any agreement or understanding to\nproceed with the Proposed Transaction or any other business arrangement or transaction. Each party understands and agrees that no contract or\nagreement providing for any transaction involving the parties shall be deemed to exist between the parties unless and until an agreement has been\nexecuted and delivered by the applicable parties thereto.\nThis letter agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts executed\nin and to be performed in the state without regard to conflicts of law principles. Each party hereby irrevocably and unconditionally submits to the\njurisdiction of any Delaware state or federal court sitting in Delaware in any action or proceeding arising out of or relating to this letter agreement, or\nfor recognition or enforcement of any judgment. Each party agrees that it will not institute or seek to institute any action or proceeding arising out of\nor relating to this letter agreement (other than an action or proceeding seeking enforcement of a judgment) in any forum other than a Delaware state\nor federal court sitting in Delaware. Each party hereby consents that legal process in any action or proceeding may be served upon such party by\nserving it by mail at the address set forth above for such party or at such other address as such party may designate in writing from time to time.\nThis letter agreement contains the entire agreement between Sprint and USU concerning the subject matter hereof, and no modifications of this\nletter agreement or waiver of the terms and conditions hereof will be binding upon Sprint or USU, unless approved in writing by each party.\n_3-\nThis letter agreement will terminate 12 months after the date first above written.\nPlease confirm your acceptance and agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter\nenclosed herewith.\nVery truly yours,\nSPRINT CORPORATION\nBy /s/ Charles R. Wunsch\nName: Charles R. Wunsch\nTitle: VP\nAccepted and Agreed\nas of the date first above written:\nUS UNWIRED INC.\nBy /s/ Jerry E. Vaughn\nName: Jerry E. Vaughn\nTitle: CFO\n4-	EX-99.(D)(6) 12 dex99d6.htm MUTUAL CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nSPRINT CORPORATION\nCharles R. Wunsch\nLaw, Corporate Transactions\nVice President\n6200 Sprint Parkway\nOverland Park, Kansas 66251\nVoice 913 794 1496\nFax 913 523 9802\ncharles.wunsch@mail.sprint.com\nJuly 5, 2005\nUS Unwired Inc.\n901 Lakeshore Drive\nLake Charles, Louisiana 70601\nAttention: General Counsel\nMutual Confidentiality. Agreement\nLadies and Gentlemen:\nIn connection with a possible transaction (the "Proposed Transaction") between Sprint Corporation ("Sprint") and US Unwired Inc. ("USU"),\neach party (the "Disclosing Party") may disclose and deliver to the other party (the "Receiving Party") certain information about the Disclosing\nParty and its properties, employees, financial condition, assets, liabilities, businesses, operations and prospects. All such information furnished by\nthe Disclosing Party or its Representatives (as defined below), whether oral or written, and regardless of the manner in which it is furnished, is\nreferred to in this letter agreement as "Proprietary Information" Proprietary Information includes any and all memoranda, notes, summaries,\nanalyses, extracts, compilations, studies or other documents or material whatsoever prepared by the Receiving Party or any of its Representatives\nbased on the Proprietary Information of the Disclosing Party. Proprietary Information does not include, however, information that (a) is or becomes\ngenerally available to or known by the public other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this\nletter agreement, (b) is or becomes available to the Receiving Party or its Representatives on a non-confidential basis prior to its disclosure by the\nDisclosing Party or its Representatives or (c) becomes available to the Receiving Party on a non-confidential basis from a person (other than\nthe\nDisclosing Party or its Representatives) who is not known by Scotland to bound by a confidentiality agreement with the Disclosing Party. As used in\nthis letter agreement, (i) the term "Representative" means, as to any person, such person's affiliates and controlling persons and its and their\ndirectors, officers, employees, agents and advisors (including financial advisors, legal counsel and accountants) and (ii) the term "person" will be\nbroadly interpreted to include any corporation, company, partnership, other entity or individual.\nUnless otherwise agreed to in writing by the other party, each party agrees (a) except as required by law or regulatory authority and subject to\nthe fourth full paragraph on page 2, to keep all Proprietary Information of the other party confidential and not to disclose or reveal any such\nProprietary Information to any person other than its Representatives who are participating in the\nevaluation of the Proposed Transaction and (b) not to use any such Proprietary Information for any purpose other than solely to evaluate the\nProposed Transaction.\nExcept as required by law or regulatory authority, each party agrees not to disclose to any person (other than those of its Representatives who\nare participating in the evaluation of the Proposed Transaction) any information about the Proposed Transaction, or the terms or conditions or any\nother facts relating thereto, including the fact that discussions are taking place with respect thereto, or the status thereof, or the fact that Proprietary\nInformation has been made available to the other party or any of its Representatives. If such disclosure is required by law or regulatory authority,\nsuch party will use reasonable best efforts to notify and consult with the other party in advance of such disclosure.\nEach party hereby acknowledges that such party is aware, and that such party will advise its Representatives who are informed as to the\nmatters that are the subject of this letter agreement, that the United States securities laws prohibit any person who has received from an issuer\nmaterial, non-public information concerning the matters that are the subject of this letter agreement from purchasing or selling securities of such\nissuer or from communication of such information to any other person under circumstances in which it is reasonably foreseeable that such person is\nlikely to purchase or sell such securities.\nEach party will cause its Representatives to observe the terms of this letter agreement and will be responsible for any breach of or non-\ncompliance with the terms of this letter agreement by any of its Representatives.\nIn the event that the Receiving Party or any of its Representatives is requested or becomes legally compelled (by oral questions,\ninterrogatories, requests for information or documents, subpoenas, civil investigative demand or similar process) to disclose any of the Proprietary\nInformation of the Disclosing Party, the Receiving Party will, as soon as reasonably practicable, provide the Disclosing Party with telephonic notice\n(followed by prompt written notice) so that the Disclosing Party may seek a protective order or other appropriate remedy, including appeals, or\nwaive compliance with the provisions of this letter agreement. In the event that such protective order or other remedy is not obtained, or that the\nDisclosing\nParty\nwaives compliance with the provisions of this letter agreement, the Receiving Party will furnish only that portion of the Proprietary\nInformation of the Disclosing Party or any documents or memoranda based thereon that is legally required, and otherwise exercise reasonable best\nefforts to obtain reliable assurance that confidential treatment will be accorded to such materials.\nEach party acknowledges that neither the other party nor any of its Representatives makes any express or implied representation or warranty as\nto the accuracy or completeness of any Proprietary Information of the other party, and such party agrees that none of such persons will have any\nliability to such party or any of its Representatives relating to or arising from the use of any Proprietary Information by such party or its\nRepresentatives or for any errors therein or omissions therefrom except as contained in an agreement relating to the Proposed Transaction, when\nand\nif executed and delivered by the applicable parties thereto. Each party also agrees that it is entitled to rely solely on such representations and\nwarranties regarding Proprietary Information of the other party as may be made to it in any such agreement relating to the Proposed Transaction,\nsubject to the terms and conditions of such agreement.\nIf either party notifies the other party that it does not wish to proceed with the Proposed Transaction, each party shall promptly destroy all\nProprietary Information of the other party in\n-2-\nits possession, and cause the destruction of all Proprietary Information of the other party in the possession of any of its Representatives, and will not\nretain any copies or other reproductions in whole or in part of such material. Such destruction referred to in this paragraph by each party will\nbe\nsupervised by an authorized officer of such party. Such authorized officer will promptly certify such destruction to the other party in writing.\nEach party agrees that, in consideration of the other party furnishing Proprietary Information to the such party, for a period of 12 months from\nthe\ndate of this letter agreement, such party's employees who are participating in the evaluation of the Proposed Transaction will not, and such party\nwill cause such employees not to, solicit any employee of the other party with whom such employees had contact or who become known to such\nemployees in connection with the evaluation of the Proposed Transaction; provided, however, that the foregoing prohibition shall not apply to\nany\nemployee of the other party who voluntarily and independently solicits an offer of employment from such party or responds to a general\nadvertisement or similar solicitation program by such party.\nEach party agrees that money damages would not be a sufficient remedy for any breach of this letter agreement and that each party will be\nentitled to equitable relief, including injunction and specific performance, in the event of any breach of any provision of this letter agreement, in\naddition to all other remedies available at law or in equity, including monetary damages.\nIf is further understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder will operate as\na waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power\nor\nprivilege hereunder.\nNothing contained in this letter agreement will be deemed to constitute, by implication or otherwise, any agreement or understanding to\nproceed with the Proposed Transaction or any other business arrangement or transaction Each party understands and agrees that no contract or\nagreement providing for any transaction involving the parties shall be deemed to exist between the parties unless and until an agreement has been\nexecuted and delivered by the applicable parties thereto.\nThis letter agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts executed\nin and to be performed in the state without regard to conflicts of law principles. Each party hereby irrevocably and unconditionally submits to the\njurisdiction of any Delaware state or federal court sitting in Delaware in any action or proceeding arising out of or relating to this letter agreement,\nor\nfor recognition or enforcement of any judgment. Each party agrees that it will not institute or seek to institute any action or proceeding arising out\nof\nor relating to this letter agreement (other than an action or proceeding seeking enforcement of a judgment) in any forum other than a Delaware state\nor federal court sitting in Delaware. Each party hereby consents that legal process in any action or proceeding may be served upon such party by\nserving it by mail at the address set forth above for such party or at such other address as such party may designate in writing from time to time.\nThis letter agreement contains the entire agreement between Sprint and USU concerning the subject matter hereof, and no modifications of this\nletter agreement or waiver of the terms and conditions hereof will be binding upon Sprint or USU, unless approved in writing by each party.\n-3-\nThis letter agreement will terminate 12 months after the date first above written.\nPlease confirm your acceptance and agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter\nenclosed herewith.\nVery truly yours,\nSPRINT CORPORATION\nBy /s/ Charles R. Wunsch\nName: Charles R. Wunsch\nTitle: VP\nAccepted and Agreed\nas of the date first above written:\nUS UNWIRED INC.\nBy /s/ Jerry E. Vaughn\nName: Jerry E. Vaughn\nTitle: CFO\n-4-	EX-99.(D)(6) 12 dex99d6.htm MUTUAL CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nSPRINT CORPORATION\nCharles R. Wunsch\nLaw, Corporate Transactions\nVice President\n6200 Sprint Parkway\nOverland Park, Kansas 66251\nVoice 913 794 1496\nFax 913 523 9802\ncharles.wunsch@mail.sprint.com\nJuly 5, 2005\nUS Unwired Inc.\n901 Lakeshore Drive\nLake Charles, Louisiana 70601\nAttention: General Counsel\nMutual Confidentiality Agreement\nLadies and Gentlemen:\nIn connection with a possible transaction (the “Proposed Transaction”) between Sprint Corporation (“Sprint”) and US Unwired Inc. (“USU”),\neach party (the “Disclosing Party”) may disclose and deliver to the other party (the “Receiving Party”) certain information about the Disclosing\nParty and its properties, employees, financial condition, assets, liabilities, businesses, operations and prospects. All such information furnished by\nthe Disclosing Party or its Representatives (as defined below), whether oral or written, and regardless of the manner in which it is furnished, is\nreferred to in this letter agreement as “Proprietary Information”. Proprietary Information includes any and all memoranda, notes, summaries,\nanalyses, extracts, compilations, studies or other documents or material whatsoever prepared by the Receiving Party or any of its Representatives\nbased on the Proprietary Information of the Disclosing Party. Proprietary Information does not include, however, information that (a) is or becomes\ngenerally available to or known by the public other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this\nletter agreement, (b) is or becomes available to the Receiving Party or its Representatives on a non-confidential basis prior to its disclosure by the\nDisclosing Party or its Representatives or (c) becomes available to the Receiving Party on a non-confidential basis from a person (other than the\nDisclosing Party or its Representatives) who is not known by Scotland to bound by a confidentiality agreement with the Disclosing Party. As used in\nthis letter agreement, (i) the term “Representative” means, as to any person, such person’s affiliates and controlling persons and its and their\ndirectors, officers, employees, agents and advisors (including financial advisors, legal counsel and accountants) and (ii) the term “person” will be\nbroadly interpreted to include any corporation, company, partnership, other entity or individual.\nUnless otherwise agreed to in writing by the other party, each party agrees (a) except as required by law or regulatory authority and subject to\nthe fourth full paragraph on page 2, to keep all Proprietary Information of the other party confidential and not to disclose or reveal any such\nProprietary Information to any person other than its Representatives who are participating in the\nevaluation of the Proposed Transaction and (b) not to use any such Proprietary Information for any purpose other than solely to evaluate the\nProposed Transaction.\nExcept as required by law or regulatory authority, each party agrees not to disclose to any person (other than those of its Representatives who\nare participating in the evaluation of the Proposed Transaction) any information about the Proposed Transaction, or the terms or conditions or any\nother facts relating thereto, including the fact that discussions are taking place with respect thereto, or the status thereof, or the fact that Proprietary\nInformation has been made available to the other party or any of its Representatives. If such disclosure is required by law or regulatory authority,\nsuch party will use reasonable best efforts to notify and consult with the other party in advance of such disclosure.\nEach party hereby acknowledges that such party is aware, and that such party will advise its Representatives who are informed as to the\nmatters that are the subject of this letter agreement, that the United States securities laws prohibit any person who has received from an issuer\nmaterial, non-public information concerning the matters that are the subject of this letter agreement from purchasing or selling securities of such\nissuer or from communication of such information to any other person under circumstances in which it is reasonably foreseeable that such person is\nlikely to purchase or sell such securities.\nEach party will cause its Representatives to observe the terms of this letter agreement and will be responsible for any breach of or non-\ncompliance with the terms of this letter agreement by any of its Representatives.\nIn the event that the Receiving Party or any of its Representatives is requested or becomes legally compelled (by oral questions,\ninterrogatories, requests for information or documents, subpoenas, civil investigative demand or similar process) to disclose any of the Proprietary\nInformation of the Disclosing Party, the Receiving Party will, as soon as reasonably practicable, provide the Disclosing Party with telephonic notice\n(followed by prompt written notice) so that the Disclosing Party may seek a protective order or other appropriate remedy, including appeals, or\nwaive compliance with the provisions of this letter agreement. In the event that such protective order or other remedy is not obtained, or that the\nDisclosing Party waives compliance with the provisions of this letter agreement, the Receiving Party will furnish only that portion of the Proprietary\nInformation of the Disclosing Party or any documents or memoranda based thereon that is legally required, and otherwise exercise reasonable best\nefforts to obtain reliable assurance that confidential treatment will be accorded to such materials.\nEach party acknowledges that neither the other party nor any of its Representatives makes any express or implied representation or warranty as\nto the accuracy or completeness of any Proprietary Information of the other party, and such party agrees that none of such persons will have any\nliability to such party or any of its Representatives relating to or arising from the use of any Proprietary Information by such party or its\nRepresentatives or for any errors therein or omissions therefrom except as contained in an agreement relating to the Proposed Transaction, when and\nif executed and delivered by the applicable parties thereto. Each party also agrees that it is entitled to rely solely on such representations and\nwarranties regarding Proprietary Information of the other party as may be made to it in any such agreement relating to the Proposed Transaction,\nsubject to the terms and conditions of such agreement.\nIf either party notifies the other party that it does not wish to proceed with the Proposed Transaction, each party shall promptly destroy all\nProprietary Information of the other party in\n-2-\nits possession, and cause the destruction of all Proprietary Information of the other party in the possession of any of its Representatives, and will not\nretain any copies or other reproductions in whole or in part of such material. Such destruction referred to in this paragraph by each party will be\nsupervised by an authorized officer of such party. Such authorized officer will promptly certify such destruction to the other party in writing.\nEach party agrees that, in consideration of the other party furnishing Proprietary Information to the such party, for a period of 12 months from\nthe date of this letter agreement, such party’s employees who are participating in the evaluation of the Proposed Transaction will not, and such party\nwill cause such employees not to, solicit any employee of the other party with whom such employees had contact or who become known to such\nemployees in connection with the evaluation of the Proposed Transaction; provided, however, that the foregoing prohibition shall not apply to any\nemployee of the other party who voluntarily and independently solicits an offer of employment from such party or responds to a general\nadvertisement or similar solicitation program by such party.\nEach party agrees that money damages would not be a sufficient remedy for any breach of this letter agreement and that each party will be\nentitled to equitable relief, including injunction and specific performance, in the event of any breach of any provision of this letter agreement, in\naddition to all other remedies available at law or in equity, including monetary damages.\nIf is further understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder will operate as\na waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or\nprivilege hereunder.\nNothing contained in this letter agreement will be deemed to constitute, by implication or otherwise, any agreement or understanding to\nproceed with the Proposed Transaction or any other business arrangement or transaction. Each party understands and agrees that no contract or\nagreement providing for any transaction involving the parties shall be deemed to exist between the parties unless and until an agreement has been\nexecuted and delivered by the applicable parties thereto.\nThis letter agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts executed\nin and to be performed in the state without regard to conflicts of law principles. Each party hereby irrevocably and unconditionally submits to the\njurisdiction of any Delaware state or federal court sitting in Delaware in any action or proceeding arising out of or relating to this letter agreement, or\nfor recognition or enforcement of any judgment. Each party agrees that it will not institute or seek to institute any action or proceeding arising out of\nor relating to this letter agreement (other than an action or proceeding seeking enforcement of a judgment) in any forum other than a Delaware state\nor federal court sitting in Delaware. Each party hereby consents that legal process in any action or proceeding may be served upon such party by\nserving it by mail at the address set forth above for such party or at such other address as such party may designate in writing from time to time.\nThis letter agreement contains the entire agreement between Sprint and USU concerning the subject matter hereof, and no modifications of this\nletter agreement or waiver of the terms and conditions hereof will be binding upon Sprint or USU, unless approved in writing by each party.\n-3-\nThis letter agreement will terminate 12 months after the date first above written.\nPlease confirm your acceptance and agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter\nenclosed herewith.\nVery truly yours,\nSPRINT CORPORATION\nBy /s/ Charles R. Wunsch\nName: Charles R. Wunsch\nTitle: VP\nAccepted and Agreed\nas of the date first above written:\nUS UNWIRED INC.\nBy /s/ Jerry E. Vaughn\nName: Jerry E. Vaughn\nTitle: CFO\n-4-
7523fc8effce074d5332696808bb7fd4.pdf	jurisdiction party	EXHIBIT A\nWALGREENS BOOTS ALLIANCE, INC. NON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nThis Exhibit (the "Non-Compete Agreement") forms a part of the Restricted Stock Unit Award\nAgreement covering Restricted Stock Units awarded to an employee ("Employee" or "I") of Walgreens Boots\nAlliance, Inc. or an affiliate thereof, on behalf of itself, its affiliates, subsidiaries, and successors (collectively\nreferred to as the "Company").\nWHEREAS, the Company develops and/or uses valuable business, technical, proprietary, customer\nand patient information it protects by limiting its disclosure and by keeping it secret or confidential;\nWHEREAS, Employee acknowledges that during the course of employment, he or she has or will\nreceive, contribute, or develop such Confidential Information and Trade Secrets (as defined below); and\nWHEREAS, the Company desires to protect from its competitors such Confidential Information and\nTrade Secrets and also desires to protect its legitimate business interests and goodwill in maintaining its\nemployee and customer relationships.\nNOW THEREFORE, in consideration of the Restricted Stock Units issued to Employee pursuant to the\nAgreement to which this is attached as Exhibit A and for other good and valuable consideration, including but\nnot limited to employment or continued employment, the specialized knowledge, skill and training that the\nCompany provides Employee, the goodwill that Employee develops with customers on behalf of the\nCompany, Employee agrees to be bound by the terms of this Non-Compete Agreement as follows:\n1.Confidentiality.\n(a)At all times during and after the termination of my employment with the Company, I will not,\nwithout the Company’s prior written permission, directly or indirectly for any purpose other than\nperformance of my duties for the Company, utilize or disclose to anyone outside of the Company any\nTrade Secrets (defined in subparagraph 1(a)(i)) or other Confidential Information (defined in\nsubparagraph 1(a)(ii)) or any information received by the Company in confidence from or about third\nparties, as long as such matters remain Trade Secrets or otherwise confidential.\n(OGRSURT2020)\n(i)For purposes of this Non-Compete Agreement, “Trade Secrets” means a form of\nintellectual property that are protectable under applicable state and/or Federal law, including\nthe Uniform Trade Secrets Act (as amended and adapted by the states) and the Federal\nDefend Trade Secrets Act of 2016 (the “DTSA”). They include all tangible and intangible (e.g.,\nelectronic) forms and types of information that is held and kept confidential by the Company\nand is not generally known outside of the Company, including but not limited to information\nabout: the Company’s financial, business, scientific, technical, economic, or engineering\ninformation, including patterns, plans, compilations, program devices, formulas, designs,\nprototypes, methods, techniques, processes, procedures, programs or codes, and may in\nparticular include such things as pricing information, business records, software programs,\nalgorithms, inventions, patent applications, and designs and processes not known outside the\nCompany.\n(ii)For purposes of this Non-Compete Agreement, “Confidential Information” means\nTrade Secrets and, more broadly, any other tangible and intangible (e.g ., electronic) forms and\ntypes of information that are held and kept confidential by the Company and are not generally\nknown outside the Company, and which relates to the actual or anticipated business of the\nCompany or the Company’s actual or prospective vendors or clients. Confidential Information\nshall not be considered generally known to the public if is revealed improperly to the public by\nme or others without the Company’s express written consent and/or in violation of an obligation\nof confidentiality to the Company. Examples of Confidential Information include, but are not\nlimited to: customer, referral source, supplier and contractor identification and contacts; special\ncontract terms; pricing and margins; business, marketing and customer plans and strategies;\nfinancial data; company created (or licensed) techniques; technical know-how; research,\ndevelopment and production information; processes, prototypes, software, patent applications\nand plans, projections, proposals, discussion guides, and/or personal or performance\ninformation about employees.\n(b)I understand that this obligation of non-disclosure shall last so long as the information\nremains confidential. I, however, understand that, if I live and work primarily in Wisconsin, Virginia, or\nany other state requiring a temporal limit on non-disclosure clauses, Confidential Information shall be\nprotected for two (2) years following termination of my employment (for any reason). I also understand\nthat Trade Secrets are protected by statute and are not subject to any time limits. I also agree to\ncontact the Company before using, disclosing, or distributing any Confidential Information or Trade\nSecrets if I have any questions about whether such information is protected information.\n(c)The restrictions set forth in this paragraph are in addition to and not in lieu of any obligations\nI have by law with respect to the Company’s Confidential Information, including any obligations I may\nowe under the DTSA and any applicable state statutes. Nothing herein shall prohibit me from divulging\nevidence of criminal wrongdoing to law enforcement or prohibit me from disclosing Confidential\nInformation or Trade Secrets if compelled by order of court or an agency of competent jurisdiction or\nas required by law; however, I shall promptly inform the Company of any such situations and shall take\nreasonable steps to prevent disclosure of Confidential Information or Trade Secrets until the Company\nhas been informed of such required disclosure and has had a reasonable opportunity to seek a\nprotective order. Pursuant to the DTSA, I understand that an individual may not be held criminally or\ncivilly liable under any federal or state trade secret law for the disclosure of a Trade Secret that: (A) is\nmade (i) in confidence to a federal, state or local government official, either directly or indirectly, or to\nan attorney, and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or\n(B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is\nmade under seal. Additionally, I understand that an individual who files a lawsuit for retaliation by an\nemployer for reporting a suspected violation of law may disclose the Trade Secret to his or her\nattorney and use the Trade Secret information in the court proceeding, so long as any document\ncontaining the Trade Secret is filed under seal and the individual does not disclose the Trade Secret,\nexcept pursuant to court order. Nothing in this Non-Compete Agreement\n(OGRSURT2020)\nis intended to conflict with the DTSA or create liability for disclosures of Trade Secrets that are\nexpressly allowed by DTSA.\n2.Non-Competition. I agree that during my employment with the Company and for twelve (12)\nmonths after the termination of my employment (for any reason), I will not, directly or indirectly have\nResponsibilities with respect to any Competing Business Line. As set forth in paragraph 9(a) below, I\nunderstand that the restrictions in this paragraph apply no matter whether my employment is\nterminated by me or the Company and no matter whether that termination is voluntary or involuntary.\nThese restrictions shall not apply to passive investments of less than five percent (5%) ownership\ninterest in any entity. For purposes of this Non-Compete Agreement, “Responsibilities” means the\nsame or similar material responsibilities I performed for the Company during the two (2) years prior to\nmy last day of employment with the Company and within the same geographic scope, or portion\nthereof, where I performed those responsibilities for the Company. For purposes of this Non-Compete\nAgreement, “Competing Business Line” means any business that is in competition with any\nbusiness engaged in by the Company and for which I had Responsibilities during the two (2) years\nprior to my last day of employment with the Company. Competing Business Line shall also include\nbusinesses or business lines that may not be directly competitive with the Company in most respects\n(such as pharmacy benefit managers), but only to the extent I am engaged by any such business in a\nrole: (a) that involves my performing Responsibilities for Competing Products or Services; or (b) where\nI would be called upon to inevitably rely upon or disclose Confidential Information and such reliance or\ndisclosure would competitively harm the Company. For purposes of this Non-Compete Agreement,\n“Competing Products or Services” means products or services that are competitive with products or\nservices offered by, developed by, designed by or distributed by the Company during the two (2) years\nprior to my last day of employment with the Company.\n3. Non-Solicitation. I agree that during my employment with the Company and for two (2) years after\nthe termination of my employment from the Company (for any reason):\n(a) I will not directly or indirectly, solicit any Restricted Customer for purposes of providing\nCompeting Products or Services, or offer, provide or sell Competing Products or Services to any\nRestricted Customer. For purposes of this Non-Compete Agreement, “Restricted Customer” means\nany person, company or entity that was a customer, vendor, supplier or referral source of the\nCompany and with which I had direct contact for purposes of performing responsibilities for the\nCompany or for which I had supervisory responsibilities on behalf of the Company, in either case at\nany time during the two (2) years prior to my last day of employment with the Company. To the extent\npermitted by applicable law, “Restricted Customer” also means any prospective customer(s),\nvendor(s), supplier(s) or referral source(s) with which I had business contact on behalf of the Company\nin the twelve (12) months prior to my last day of employment with the Company; and\n(b) I will not, nor will I assist any third party to, directly or indirectly (i) raid, solicit, or attempt to\npersuade any then-current employee of the Company with whom I currently work or with whom I had\ndirect contact work during the two years prior to my last day of employment with the Company, and\nwho possesses or had access to Confidential Information of the Company, to leave the employ of the\nCompany; (ii) interfere with the performance by any such employee of his/her duties for the Company;\nand/or (iii) communicate with any such employee for the purposes described in items (i) and (ii) in this\nsubparagraph 3(b).\n4. Non-Inducement. I will not directly or indirectly assist or encourage any person or entity in carrying\nout or conducting any activity that would be prohibited by this Non-Compete Agreement if such activity were\ncarried out or conducted by me.\n5. Non-Disparagement. During my employment with the Company and thereafter, I agree not to\nmake negative comments or otherwise disparage the Company or any of its officers, directors, employees,\n(OGRSURT2020)\nshareholders, members, agents or products. The foregoing shall not be violated by truthful statements in\nresponse to legal process, required governmental testimony or filings, or administrative or arbitral proceedings\n(including, without limitation, depositions in connection with such proceedings); and the foregoing shall not\napply to any claims for harassment or discrimination to the extent so restricted by applicable state law.\n6.\nIntellectual Property. The term “Intellectual Property” shall mean all trade secrets, ideas,\ninventions, designs, developments, devices, software, computer programs, methods and processes (whether\nor not patented or patentable, reduced to practice or included in the Confidential Information) and all patents\nand patent applications related thereto, all copyrights, copyrightable works and mask works (whether or not\nincluded in the Confidential Information) and all registrations and applications for registration related thereto,\nall Confidential Information, and all other proprietary rights contributed to, or conceived or created by, or\nreduced to practice by Employee or anyone acting on his/her behalf (whether alone or jointly with others) at\nany time from the beginning of Employee’s employment with the Company to the termination of that\nemployment plus ninety (90) days, that (i) relate to the business or to the actual or anticipated research or\ndevelopment of the Company; (ii) result from any services that Employee or anyone acting on its behalf\nperform for the Company; or (iii) are created using the equipment, supplies or facilities of the Company or any\nConfidential Information.\na.Ownership. All Intellectual Property is, shall be and shall remain the exclusive property of the\nCompany. Employee hereby assigns to the Company all right, title and interest, if any, in and to the\nIntellectual Property; provided, however, that, when applicable, the Company shall own the copyrights\nin all copyrightable works included in the Intellectual Property pursuant to the “work-made-for-hire”\ndoctrine (rather than by assignment), as such term is defined in the 1976 Copyright Act. All Intellectual\nProperty shall be owned by the Company irrespective of any copyright notices or confidentiality\nlegends to the contrary that may be placed on such works by Employee or by others. Employee shall\nensure that all copyright notices and confidentiality legends on all work product authored by Employee\nor anyone acting on his/her behalf shall conform to the Company’s practices and shall specify the\nCompany as the owner of the work. The Company hereby provides notice to Employee that the\nobligation to assign does not apply to an invention for which no equipment, supplies, facility, or Trade\nSecrets of the Company was used and which was developed entirely on the Employee’s own time,\nunless (i) the invention relates (1) to the business of the Company, or (2) to the Company’s actual or\ndemonstrably anticipated research or development, or (ii) the invention results from any work\nperformed by Employee for the Company.\nb.Keep Records. Employee shall keep and maintain, or cause to be kept and maintained by\nanyone acting on his/her behalf, adequate and current written records of all Intellectual Property in the\nform of notes, sketches, drawings, computer files, reports or other documents relating thereto. Such\nrecords shall be and shall remain the exclusive property of the Company and shall be available to the\nCompany at all times during my employment with the Company.\nc.Assistance. Employee shall supply all assistance requested in securing for the Company’s\nbenefit any patent, copyright, trademark, service mark, license, right or other evidence of ownership of\nany such Intellectual Property, and will provide full information regarding any such item and execute all\nappropriate documentation prepared by Company in applying or otherwise registering, in the\nCompany’s name, all rights to any such item or the defense and protection of such Intellectual\nProperty.\nd.Prior Inventions. Employee has disclosed to the Company any continuing obligations to any\nthird party with respect to Intellectual Property. Employee claims no rights to any inventions created\nprior to his/her employment for which a patent application has not previously been filed, unless he/she\nhas described them in detail on a schedule attached to this Non-Compete Agreement.\n(OGRSURT2020)\ne.Trade Secret Provisions. The provisions in paragraph 1 of this Non-Compete Agreement with\nregard to Trade Secrets and the DTSA shall apply as well in the context of the parties’ Intellectual\nProperty rights and obligations.\n7. Return of Company Property. I agree that all documents and data accessible to me during my\nemployment with the Company, including Confidential Information and Trade Secrets, regardless of format\n(electronic or hard copy), including but not limited to any Company computer, monitor, printer equipment,\nexternal drives, wireless access equipment, telecom equipment and systems (“Company Equipment”), are\nand remain the sole and exclusive property of the Company and/or its clients, and must be returned to the\nCompany upon separation or upon demand by the Company. I further agree that I will provide passwords to\naccess such Company Equipment and I will not print, retain, copy, destroy, modify or erase Company U.S .\ndata on Company Equipment or otherwise wipe Company Equipment prior to returning the Company\nEquipment.\n8. Consideration and Acknowledgments. I acknowledge and agree that the covenants described in\nthis Non-Compete Agreement are essential terms, and the underlying Restricted Stock Units would not be\nprovided by the Company in the absence of these covenants. I further acknowledge that these covenants are\nsupported by adequate consideration as set forth in this Non-Compete Agreement and are not in conflict with\nany public interest. I further acknowledge and agree that I fully understand these covenants, have had full and\ncomplete opportunity to discuss and resolve any ambiguities or uncertainties regarding these covenants\nbefore signing this Non-Compete Agreement, and have voluntarily agreed to comply with these covenants for\ntheir stated terms. I further acknowledge and agree that these covenants are reasonable and enforceable in\nall respects.\n9. Enforceability; General Provisions.\n(a) I agree that the restrictions contained in this Non-Compete Agreement are reasonable\nand necessary to protect the Company’s legitimate business interests and that full compliance with the\nterms of this Non-Compete Agreement will not prevent me from earning a livelihood following the\ntermination of my employment, and that these covenants do not place undue restraint on me. I further\nunderstand that the restrictions in this Non-Compete Agreement apply no matter whether my\nemployment is terminated by me or the Company and no matter whether that termination is voluntary\nor involuntary.\n(b) Because the Company’s current base of operations is in Illinois and my connections\nthereto, (i) this Non-Compete Agreement shall be governed by and construed in accordance with the\nlaws of the State of Illinois, where this Non-Compete Agreement is entered into, without giving effect to\nany conflict of law provisions, and (ii) I consent to personal jurisdiction and the exclusive jurisdiction of\nthe state and federal courts of Illinois with respect to any claim, dispute or declaration arising out of this\nNon-Compete Agreement.\n(c) In the event of a breach or a threatened breach of this Non-Compete Agreement, I\nacknowledge that the Company will face irreparable injury which may be difficult to calculate in dollar\nterms and that the Company shall be entitled, in addition to all remedies otherwise available in law or\nin equity, to temporary restraining orders and preliminary and final injunctions enjoining such breach or\nthreatened breach in any court of competent jurisdiction without the necessity of posting a surety bond,\nas well as to obtain an equitable accounting of all profits or benefits arising out of any violation of this\nNon-Compete Agreement.\n(d)\nI agree that if a court determines that any of the provisions in this Non-Compete\nAgreement is unenforceable or unreasonable in duration, territory, or scope, then that court shall\nmodify those provisions so they are reasonable and enforceable, and enforce those provisions as\nmodified.\n(OGRSURT2020)\n(e) If any one or more provisions (including paragraphs, subparagraphs and terms) of this\nNon-Compete Agreement or its application is determined to be invalid, illegal, or unenforceable to any\nextent or for any reason by a court of competent jurisdiction, I agree that the remaining provisions\n(including paragraphs, subparagraphs and terms) of this Non-Compete Agreement will still be valid\nand the provision declared to be invalid or illegal or unenforceable will be considered to be severed\nand deleted from the rest of this Non-Compete Agreement. I further agree that if any court of\ncompetent jurisdiction finds any of the restrictions set forth in this Non-Compete Agreement to be\noverly broad and unenforceable, the restriction shall be interpreted to extend only over the maximum\ntime period, geographic area, or range of activities or clients that such court deems enforceable\n(f)\nNotwithstanding the foregoing provisions of this Non-Compete Agreement, the\nnon-competition provisions of paragraph 2 above shall not restrict Employee from performing legal\nservices as a licensed attorney for a Competing Business to the extent that the attorney licensure\nrequirements in the applicable jurisdiction do not permit Employee to agree to the otherwise applicable\nrestrictions of paragraph 2.\n(g) Waiver of any of the provisions of this Non-Compete Agreement by the Company in any\nparticular instance shall not be deemed to be a waiver of any provision in any other instance and/or of\nthe Company’s other rights at law or under this Non-Compete Agreement.\n(h) I agree that the Company may assign this Non-Compete Agreement to its successors and\nassigns and that any such successor or assign may stand in the Company’s stead for purposes of\nenforcing this Non-Compete Agreement.\n(i)\nI agree to reimburse the Company for all attorneys’ fees, costs, and expenses that it\nreasonably incurs in connection with enforcing its rights and remedies under this Non-Compete\nAgreement, but only to the extent the Company is ultimately the prevailing party in the applicable legal\nproceedings.\n(j) I understand and agree that, where allowed by applicable law, the time for my obligations\nset out in paragraphs 2 - 6 shall be extended for period of non-compliance up to an additional two (2)\nyears following my last day of employment with the Company (for any reason).\n(k) I fully understand my obligations in this Non-Compete Agreement, have had full and\ncomplete opportunity to discuss and resolve any ambiguities or uncertainties regarding these\ncovenants before signing this Non-Compete Agreement, and have voluntarily agreed to comply with\nthese covenants for their stated terms.\n(l) I agree that all non-competition, non-solicitation, non-disclosure and use, non-recruiting,\nand disclosure obligations in this Non-Compete Agreement shall survive any termination of this\nNon-Compete Agreement and extend to the proscribed periods following my last day of employment\nwith the Company (for any reason) and no dispute regarding any other provisions of this Non-Compete\nAgreement or regarding my employment or the termination of my employment shall prevent the\noperation and enforcement of these obligations.\n(m) I understand that nothing in this Non-Compete Agreement, including the non-disclosure\nand non-disparagement provisions, limit my ability to file a charge or complaint with the Equal\nEmployment Opportunity Commission, Department of Labor, National Labor Relations Board,\nOccupational Safety and Health Administration, Securities and Exchange Commission or any other\nfederal, state or local governmental agency or commission. I also understand that this Non-Compete\nAgreement does not limit my ability to communicate with any government agencies or otherwise\nparticipate in any investigation or proceeding that may be conducted by any government agency,\nincluding providing documents or other information, without notice to the Company. Finally, I\n(OGRSURT2020)\nunderstand that nothing in this Non-Compete Agreement is intended to restrict my legally-protected\nright to discuss wages, hours or other working condition with co-workers, or in any way limit my rights\nunder the National Labor Relations Act or any whistleblower act.\n10. Relationship of Parties. I acknowledge that my relationship with the Company is “terminable at\nwill” by either party and that the Company or I can terminate the relationship with or without cause and without\nfollowing any specific procedures. Nothing contained in this Non-Compete Agreement is intended to or shall\nbe relied upon to alter the “terminable at will” relationship between the parties. I agree that my obligations in\nthis Non-Compete Agreement shall survive the termination of my employment from the Company for any\nreason and shall be binding upon my successors, heirs, executors and representatives.\n11. Modifications and Other Agreements. I agree that the terms of this Non-Compete Agreement\nmay not be modified except by a written agreement signed by both me and the Company. This Non-Compete\nAgreement shall not supersede any other restrictive covenants to which I may be subject under an\nemployment contract, benefit program or otherwise, such that the Company may enforce the terms of any and\nall restrictive covenants to which I am subject. The obligations herein are in addition to and do not limit any\nobligations arising under applicable statutes and common law.\n12. State and Commonwealth Law Modifications. I agree that if I primarily reside and work in\nCalifornia, Massachusetts, Puerto Rico, South Carolina, Washington or Wisconsin, I am subject to the\nmodifications to this Non-Compete Agreement set forth in Exhibit A-1 applying to such state and to the extent\nsuch state law applies.\n13. Notification. I agree that in the event I am offered employment at any time in the future with any\nentity that may be considered a Competing Business Line, I shall immediately notify such Competing\nBusiness of the existence and terms of this Non-Compete Agreement. I also understand and agree that the\nCompany may notify anyone attempting to or later employing me of the existence and provisions of this\nNon-Compete Agreement.\n*** *** *** *** ***\nBy clicking the acceptance box for this grant agreement, I acknowledge receipt of the Restricted Stock\nUnit Award Agreement to which this Non-Compete Agreement is attached as Exhibit A, and I agree to the\nterms and conditions expressed in this Non-Compete Agreement, including the modifications set forth in\nExhibit A-1, as applicable.	EXHIBIT A\nWALGREENS BOOTS ALLIANCE, INC. NON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nThis Exhibit (the "Non-Compete Agreement") forms a part of the Restricted Stock Unit Award\nAgreement covering Restricted Stock Units awarded to an employee ("Employee" or ”I") ofWaIgreens Boots\nAlliance, Inc. or an affiliate thereof, on behalf of itself, its affiliates, subsidiaries, and successors (collectively\nreferred to as the "Compa ny").\nWHEREAS, the Company develops and/or uses valuable business, technical, proprietary, customer\nand patient information it protects by limiting its disclosure and by keeping itsecretor confidential;\nWHEREAS, Employee acknowledges that during the course of employment, he or she has or will\nreceive, contribute, or develop such Confidential Information and Trade Secrets (as defined below); and\nWHEREAS, the Company desires to protect from its competitors such Confidential Information and\nTrade Secrets and also desires to protect its legitimate business interests and goodwill in maintaining its\nemployee and customer relationships.\nNOW THEREFORE, in consideration ofthe Restricted Stock Units issued to Employee pursuant to the\nAgreement to which this is attached as ExhibitA and for other good and valuable consideration, including but\nnot limited to employment or continued employment, the specialized knowledge, skill and training that the\nCompany provides Employee, the goodwill that Employee develops with customers on behalf of the\nCompany, Employee agrees to be bound by the terms of this Non-Compete Agreementas follows:\n1.Confidentiality.\n(a)At all times during and after the termination of my employment with the Company, I will not,\nwithout the Company’s prior written permission, directly or indirectly for any purpose other than\nperformance of my duties for the Company, utilize or disclose to anyone outside of the Company any\nTrade Secrets (defined in subparagraph 1(a)(i)) or other Confidential Information (defined in\nsubparagraph 1(a)(ii)) or any information received by the Company in confidence from or about third\nparties, as long as such matters remain Trade Secrets or otherwise confidential.\n(OGRSURTZOZO)\n(i)For purposes of this Non-Compete Agreement, 'Trade Secrets” means a form of\nintellectual property that are protectable under applicable state and/or Federal law, including\nthe Uniform Trade Secrets Act (as amended and adapted by the states) and the Federal\nDefend Trade Secrets Act of 2016 (the "DTSA”). They include all tangible and intangible (e.g.,\nelectronic) forms and types of information that is held and kept confidential by the Company\nand is not generally known outside of the Company, including but not limited to information\nabout: the Company’s financial, business, scientific, technical, economic, or engineering\ninformation, including patterns, plans, compilations, program devices, formulas, designs,\nprototypes, methods, techniques, processes, procedures, programs or codes, and may in\nparticular include such things as pricing information, business records, software programs,\nalgorithms, inventions, patent applications, and designs and processes not known outside the\nCom an .\np (ii/)For purposes of this Non-Compete Agreement, "Confidential Information” means\nTrade Secrets and, more broadly, any other tangible and intangible (e.g., electronic) forms and\ntypes of information that are held and kept confidential by the Company and are not generally\nknown outside the Company, and which relates to the actual or anticipated business of the\nCompany or the Company’s actual or prospective vendors or clients. Confidential Information\nshall not be considered generally known to the public if is revealed improperly to the public by\nme or others withoutthe Company’s express written consent and/or in violation of an obligation\nof confidentiality to the Company. Examples of Confidential Information include, but are not\nlimited to: customer, referral source, supplier and contractor identification and contacts; special\ncontract terms; pricing and margins; business, marketing and customer plans and strategies;\nfinancial data; company created (or licensed) techniques; technical know-how; research,\ndevelopment and production information; processes, prototypes, sofhivare, patent applications\nand plans, projections, proposals, discussion guides, and/or personal or performance\ninformation about employees.\n(b)| understand that this obligation of non-disclosure shall last so long as the information\nremains confidential. I, however, understand that, ifl live and work primarily in Wisconsin, Virginia, or\nany other state requiring a temporal limit on non-disclosure clauses, Confidential Information shall be\nprotected for two (2) years following termination of my employment (for any reason). I also understand\nthat Trade Secrets are protected by statute and are not subject to any time limits. I also agree to\ncontact the Company before using, disclosing, or distributing any Confidential Information or Trade\nSecrets if| have any questions aboutwhether such information is protected information.\n(c)The restrictions set forth in this paragraph are in addition to and not in lieu of any obligations\nl have by law with respect to the Company’s Confidential Information, including any obligations I may\nowe under the DTSA and any applicable state statutes. Nothing herein shall prohibit me from divulging\nevidence of criminal wrongdoing to law enforcement or prohibit me from disclosing Confidential\nInformation or Trade Secrets if compelled by order of court or an agency of competentjurisdiction or\nas required by law; however, I shall promptly inform the Company ofany such situations and shall take\nreasonable steps to prevent disclosure of Confidential Information orTrade Secrets until the Company\nhas been informed of such required disclosure and has had a reasonable opportunity to seek a\nprotective order. Pursuant to the DTSA, I understand that an individual may not be held criminally or\ncivilly liable under any federal or state trade secret law for the disclosure of a Trade Secret that: (A) is\nmade (i) in confidence to a federal, state or local government official, either directly or indirectly, or to\nan attorney, and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or\n(B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is\nmade under seal. Additionally, I understand that an individual who files a lawsuit for retaliation by an\nemployer for reporting a suspected violation of law may disclose the Trade Secret to his or her\nattorney and use the Trade Secret information in the court proceeding, so long as any document\ncontaining the Trade Secret is filed under seal and the individual does not disclose the Trade Secret,\nexcept pursuant to courtorder. Nothing in this Non-Compete Agreement\n(OGRSURTZOZO)\nis intended to conflict with the DTSA or create liability for disclosures of Trade Secrets that are\nexpressly allowed by DTSA.\n2.Non-Competition. I agree that during my employment with the Company and for twelve (12)\nmonths after the termination of my employment (for any reason), I will not, directly or indirectly have\nResponsibilities with respect to any Competing Business Line. As set forth in paragraph 9(a) below, I\nunderstand that the restrictions in this paragraph apply no matter whether my employment is\nterminated by me or the Company and no matter whether that termination is voluntary or involuntary.\nThese restrictions shall not apply to passive investments of less than five percent (5%) ownership\ninterest in any entity. For purposes of this Non-Compete Agreement, "Responsibilities" means the\nsame or similar material responsibilities I performed for the Company during the two (2) years prior to\nmy last day of employment with the Company and within the same geographic scope, or portion\nthereof, where I performed those responsibilities for the Company. For purposes of this Non-Compete\nAgreement, "Competing Business Line" means any business that is in competition with any\nbusiness engaged in by the Company and for which I had Responsibilities during the two (2) years\nprior to my last day of employment with the Company. Competing Business Line shall also include\nbusinesses or business lines that may not be directly competitive with the Company in most respects\n(such as pharmacy benefit managers), but only to the extentl am engaged by any such business in a\nrole: (a) that involves my performing Responsibilities for Competing Products or Services; or (b) where\nI would be called upon to inevitably rely upon or disclose Confidential Information and such reliance or\ndisclosure would competitively harm the Company. For purposes of this Non-Compete Agreement,\n"Competing Products or Services” means products or services that are competitive with products or\nservices offered by, developed by, designed by or distributed by the Company during the two (2) years\npriorto my lastday ofemploymentwith the Company.\n3. Non-Solicitation. I agree that during my employment with the Company and for two (2) years after\nthe termination of my employment from the Company (for any reason):\n(a) I will not directly or indirectly, solicit any Restricted Customer for purposes of providing\nCompeting Products or Services, or offer, provide or sell Competing Products or Services to any\nRestricted Customer. For purposes of this Non-Compete Agreement, "Restricted Customer” means\nany person, company or entity that was a customer, vendor, supplier or referral source of the\nCompany and with which I had direct contact for purposes of performing responsibilities for the\nCompany or for which I had supervisory responsibilities on behalf of the Company, in either case at\nany time during the two (2) years prior to my last day of employment with the Company. To the extent\npermitted by applicable law, "Restricted Customer” also means any prospective customer(s),\nvendor(s), supplier(s) or referral source(s) with which I had business contacton behalf ofthe Company\nin the twelve (12) months priorto my last day ofemployment with the Company; and\n(b) I will not, norwill I assistany third party to, directly or indirectly (i) raid, solicit, orattempt to\npersuade any then-current employee of the Company with whom I currently work or with whom I had\ndirect contact work during the two years prior to my last day of employment with the Company, and\nwho possesses or had access to Confidential Information of the Company, to leave the employ of the\nCompany; (ii) interfere with the performance by any such employee of his/her duties for the Company;\nand/or (iii) communicate with any such employee for the purposes described in items (i) and (ii) in this\nsubparagraph 3(b).\n4. Non-lnducement. I will not directly or indirectly assist or encourage any person or entity in carrying\nout or conducting any activity that would be prohibited by this Non-Compete Agreement if such activity were\ncarried outor conducted by me.\n5. Non-Disparagement. During my employment with the Company and thereafter, I agree not to\nmake negative comments or otherwise disparage the Company or any of its officers, directors, employees,\n(OGRSURTZOZO)\nshareholders, members, agents or products. The foregoing shall not be violated by truthful statements in\nresponse to legal process, required governmental testimony orfilings, or administrative or arbitral proceedings\n(including, without limitation, depositions in connection with such proceedings); and the foregoing shall not\napply to any claims for harassment or discrimination to the extentso restricted by applicable state law.\n6. Intellectual Property. The term "Intellectual Property” shall mean all trade secrets, ideas,\ninventions, designs, developments, devices, software, computer programs, methods and processes (whether\nor not patented or patentable, reduced to practice or included in the Confidential Information) and all patents\nand patent applications related thereto, all copyrights, copyrightable works and mask works (whether or not\nincluded in the Confidential Information) and all registrations and applications for registration related thereto,\nall Confidential Information, and all other proprietary rights contributed to, or conceived or created by, or\nreduced to practice by Employee or anyone acting on his/her behalf (whether alone or jointly with others) at\nany time from the beginning of Employee’s employment with the Company to the termination of that\nemployment plus ninety (90) days, that (i) relate to the business or to the actual or anticipated research or\ndevelopment of the Company; (ii) result from any services that Employee or anyone acting on its behalf\nperform for the Company; or (iii) are created using the equipment, supplies or facilities ofthe Company or any\nConfidential Information.\na.Ownership. All Intellectual Property is, shall be and shall remain the exclusive property of the\nCompany. Employee hereby assigns to the Company all right, title and interest, if any, in and to the\nIntellectual Property; provided, however, that, when applicable, the Company shall own the copyrights\nin all copyrightable works included in the Intellectual Property pursuant to the "work-made-for-hire”\ndoctrine (ratherthan by assignment), as such term is defined in the 1976 CopyrightAct. All Intellectual\nProperty shall be owned by the Company irrespective of any copyright notices or confidentiality\nlegends to the contrary that may be placed on such works by Employee or by others. Employee shall\nensure that all copyright notices and confidentiality legends on all work product authored by Employee\nor anyone acting on his/her behalf shall conform to the Company’s practices and shall specify the\nCompany as the owner of the work. The Company hereby provides notice to Employee that the\nobligation to assign does not apply to an invention for which no equipment, supplies, facility, or Trade\nSecrets of the Company was used and which was developed entirely on the Employee’s own time,\nunless (i) the invention relates (1) to the business of the Company, or (2) to the Company’s actual or\ndemonstrably anticipated research or development, or (ii) the invention results from any work\nperformed by Employee forthe Company.\nb.Keep Records. Employee shall keep and maintain, or cause to be kept and maintained by\nanyone acting on his/her behalf, adequate and currentwritten records ofall Intellectual Property in the\nform of notes, sketches, drawings, computer files, reports or other documents relating thereto. Such\nrecords shall be and shall remain the exclusive property of the Company and shall be available to the\nCompany at all times during my employment with the Company.\nc.Assistance. Employee shall supply all assistance requested in securing for the Company’s\nbenefit any patent, copyright, trademark, service mark, license, right or other evidence of ownership of\nany such Intellectual Property, and will provide full information regarding any such item and execute all\nappropriate documentation prepared by Company in applying or otherwise registering, in the\nCompany’s name, all rights to any such item or the defense and protection of such Intellectual\nProperty.\nd.Prior Inventions. Employee has disclosed to the Company any continuing obligations to any\nthird party with respect to Intellectual Property. Employee claims no rights to any inventions created\nprior to his/her employment for which a patent application has not previously been filed, unless he/she\nhas described them in detail on a schedule attached to this Non-Compete Agreement.\n(OGRSURTZOZO)\ne.Trade Secret Provisions. The provisions in paragraph 1 of this Non-Compete Agreementwith\nregard to Trade Secrets and the DTSA shall apply as well in the context of the parties’ Intellectual\nProperty rights and obligations.\n7. Return of Company Property. I agree that all documents and data accessible to me during my\nemployment with the Company, including Confidential Information and Trade Secrets, regardless of format\n(electronic or hard copy), including but not limited to any Company computer, monitor, printer equipment,\nexternal drives, wireless access equipment, telecom equipment and systems ("Company Equipment”), are\nand remain the sole and exclusive property of the Company and/or its clients, and must be returned to the\nCompany upon separation or upon demand by the Company. I further agree that I will provide passwords to\naccess such Company Equipment and I will not print, retain, copy, destroy, modify or erase Company US.\ndata on Company Equipment or otherwise wipe Company Equipment prior to returning the Company\nEquipment.\n8. Consideration and Acknowledgments. I acknowledge and agree that the covenants described in\nthis Non-Compete Agreement are essential terms, and the underlying Restricted Stock Units would not be\nprovided by the Company in the absence of these covenants. I further acknowledge that these covenants are\nsupported by adequate consideration as set forth in this Non-Compete Agreement and are not in conflict with\nany public interest. I further acknowledge and agree that I fully understand these covenants, have had full and\ncomplete opportunity to discuss and resolve any ambiguities or uncertainties regarding these covenants\nbefore signing this Non-Compete Agreement, and have voluntarily agreed to comply with these covenants for\ntheir stated terms. I further acknowledge and agree that these covenants are reasonable and enforceable in\nall respects.\n9. Enforceability; General Provisions.\n(a) I agree that the restrictions contained in this Non-Compete Agreement are reasonable\nand necessary to protect the Company’s legitimate business interests and thatfull compliance with the\nterms of this Non-Compete Agreement will not prevent me from earning a livelihood following the\ntermination of my employment, and that these covenants do not place undue restraint on me. I further\nunderstand that the restrictions in this Non-Compete Agreement apply no matter whether my\nemployment is terminated by me or the Company and no matter whether that termination is voluntary\nor involuntary.\n(b) Because the Company’s current base of operations is in Illinois and my connections\nthereto, (i) this Non-Compete Agreement shall be governed by and construed in accordance with the\nlaws of the State of Illinois, where this Non-Compete Agreement is entered into, without giving effect to\nany conflict of law provisions, and (ii) I consent to personal jurisdiction and the exclusive jurisdiction of\nthe state and federal courts of Illinois with respectto any claim, dispute or declaration arising outofthis\nNon-Compete Agreement.\n(c) In the event of a breach or a threatened breach of this Non-Compete Agreement, I\nacknowledge that the Company will face irreparable injury which may be difficult to calculate in dollar\nterms and that the Company shall be entitled, in addition to all remedies otherwise available in law or\nin equity, to temporary restraining orders and preliminary and final injunctions enjoining such breach or\nthreatened breach in any court ofcompetentjurisdiction withoutthe necessity of posting a surety bond,\nas well as to obtain an equitable accounting of all profits or benefits arising out of any violation of this\nNon-Compete Agreement.\n(d) I agree that if a court determines that any of the provisions in this Non-Compete\nAgreement is unenforceable or unreasonable in duration, territory, or scope, then that court shall\nmodify those provisions so they are reasonable and enforceable, and enforce those provisions as\nmodified.\n(OGRSURTZOZO)\n(e) If any one or more provisions (including paragraphs, subparagraphs and terms) of this\nNon-Compete Agreement or its application is determined to be invalid, illegal, or unenforceable to any\nextent or for any reason by a court of competent jurisdiction, I agree that the remaining provisions\n(including paragraphs, subparagraphs and terms) of this Non-Compete Agreement will still be valid\nand the provision declared to be invalid or illegal or unenforceable will be considered to be severed\nand deleted from the rest of this Non-Compete Agreement. I further agree that if any court of\ncompetent jurisdiction finds any of the restrictions set forth in this Non-Compete Agreement to be\noverly broad and unenforceable, the restriction shall be interpreted to extend only over the maximum\ntime period, geographic area, or range ofactivities or clients that such court deems enforceable\n(f) Notwithstanding the foregoing provisions of this Non-Compete Agreement, the\nnon-competition provisions of paragraph 2 above shall not restrict Employee from performing legal\nservices as a licensed attorney for a Competing Business to the extent that the attorney licensure\nrequirements in the applicable jurisdiction do not permit Employee to agree to the otherwise applicable\nrestrictions of paragraph 2.\n(g) Waiver of any of the provisions of this Non-Compete Agreement by the Company in any\nparticular instance shall not be deemed to be a waiver of any provision in any other instance and/or of\nthe Company’s other rights at law or underthis Non-Compete Agreement.\n(h) I agree thatthe Company may assign this Non-Compete Agreement to its successors and\nassigns and that any such successor or assign may stand in the Company’s stead for purposes of\nenforcing this Non-Compete Agreement.\n(i) I agree to reimburse the Company for all attorneys’ fees, costs, and expenses that it\nreasonably incurs in connection with enforcing its rights and remedies under this Non-Compete\nAgreement, but only to the extent the Company is ultimately the prevailing party in the applicable legal\nproceedings.\n(j) I understand and agree that, where allowed by applicable law, the time for my obligations\nset out in paragraphs 2 - 6 shall be extended for period of non-compliance up to an additional two (2)\nyears following my last day ofemploymentwith the Company (for any reason).\n(k) I fully understand my obligations in this Non-Compete Agreement, have had full and\ncomplete opportunity to discuss and resolve any ambiguities or uncertainties regarding these\ncovenants before signing this Non-Compete Agreement, and have voluntarily agreed to comply with\nthese covenants for their stated terms.\n(|) I agree that all non-competition, non-solicitation, non-disclosure and use, non-recruiting,\nand disclosure obligations in this Non-Compete Agreement shall survive any termination of this\nNon-Compete Agreement and extend to the proscribed periods following my last day of employment\nwith the Company (for any reason) and no dispute regarding any other provisions ofthis Non-Compete\nAgreement or regarding my employment or the termination of my employment shall prevent the\noperation and enforcement ofthese obligations.\n(m) I understand that nothing in this Non-Compete Agreement, including the non-disclosure\nand non-disparagement provisions, limit my ability to file a charge or complaint with the Equal\nEmployment Opportunity Commission, Department of Labor, National Labor Relations Board,\nOccupational Safety and Health Administration, Securities and Exchange Commission or any other\nfederal, state or local governmental agency or commission. I also understand that this Non-Compete\nAgreement does not limit my ability to communicate with any government agencies or otherwise\nparticipate in any investigation or proceeding that may be conducted by any government agency,\nincluding providing documents or other information, without notice to the Company. Finally, I\n(OGRSURTZOZO)\nunderstand that nothing in this Non-Compete Agreement is intended to restrict my legally-protected\nright to discuss wages, hours or other working condition with co-workers, or in any way limit my rights\nunderthe National Labor Relations Act or any whist|eb|ower act.\n10. Relationship of Parties. I acknowledge that my relationship with the Company is “terminable at\nwill” by either party and thatthe Company orl can terminate the relationship with or without cause and without\nfollowing any specific procedures. Nothing contained in this Non-Compete Agreement is intended to or shall\nbe relied upon to alter the "terminable at will” relationship between the parties. I agree that my obligations in\nthis Non-Compete Agreement shall survive the termination of my employment from the Company for any\nreason and shall be binding upon my successors, heirs, executors and representatives.\n11. Modifications and Other Agreements. I agree that the terms of this Non-Compete Agreement\nmay not be modified except by a written agreement signed by both me and the Company. This Non-Compete\nAgreement shall not supersede any other restrictive covenants to which I may be subject under an\nemployment contract, benefit program or otherwise, such thatthe Company may enforce the terms ofany and\nall restrictive covenants to which I am subject. The obligations herein are in addition to and do not limit any\nobligations arising under applicable statutes and common law.\n12. State and Commonwealth Law Modifications. I agree that if I primarily reside and work in\nCalifornia, Massachusetts, Puerto Rico, South Carolina, Washington or Wisconsin, I am subject to the\nmodifications to this Non-Compete Agreement set forth in ExhibitA-l applying to such state and to the extent\nsuch state law applies.\n13. Notification. I agree that in the event I am offered employment at any time in the future with any\nentity that may be considered a Competing Business Line, I shall immediately notify such Competing\nBusiness of the existence and terms of this Non-Compete Agreement. I also understand and agree that the\nCompany may notify anyone attempting to or later employing me of the existence and provisions of this\nNon-Compete Agreement.\n*>l<>l< *>l<>l< *>l<>l< *>l<>l< *>l<>l<\nBy clicking the acceptance box forthis grant agreement, I acknowledge receipt of the Restricted Stock\nUnit Award Agreement to which this Non-Compete Agreement is attached as Exhibit A, and I agree to the\nterms and conditions expressed in this Non-Compete Agreement, including the modifications set forth in\nExhibitA-l, as applicable.	EXHIBIT A\nWALGREENS BOOTS ALLIANCE, INC. NON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nThis Exhibit (the "Non-Compete Agreement") forms a part of the Restricted Stock Unit Award\nAgreement covering Restricted Stock Units awarded to an employee ("E mployee" or "I") of Walgreens Boots\nAlliance, Inc. or an affiliate thereof, on behalf of itself, its affiliates, subsidiaries, and successors (collectively\nreferred to as the "Company").\nWHEREAS, the Company develops and/or uses valuable business, technical, proprietary, customer\nand patient information it protects by limiting its disclosure and by keeping it secret or confidential;\nWHEREAS, Employee acknowledges that during the course of employment, he or she has or will\nreceive, contribute, or develop such Confidential Information and Trade Secrets (as defined below); and\nWHEREAS, the Company desires to protect from its competitors such Confidential Information and\nTrade Secrets and also desires to protect its legitimate business interests and goodwil in maintaining its\nemployee and customer relationships.\nNOW THEREFORE, in consideration of the Restricted Stock Units issued to Employee pursuant to the\nAgreement to which this is attached as Exhibit A and for other good and valuable consideration, including but\nnot limited to employment or continued employment, the specialized knowledge, skill and training that the\nCompany provides Employee, the goodwill that Employee develops with customers on behalf of the\nCompany, mployee agrees to be bound by the terms of this Non-Compete Agreement as follows:\n.Confidentiality.\n(a)At all times during and after the termination of my employment with the Company, I will not,\nwithout the Company's prior written permission, directly or indirectly for any purpose other than\nperformance of my duties for the Company, utilize or disclose to anyone outside of the Company any\nTrade Secrets (defined in subparagraph 1(a)(i)) or other Confidential Information (defined in\nsubparagraph 1(a)(ii)) or any information received by the Company in confidence from or about third\nparties, as long as such matters remain Trade Secrets or otherwise confidential.\n(OGRSURT2020)\n(i)F or purposes of this Non-Compete Agreement, "Trade Secrets" means a form of\nintellectual property that are protectable under applicable state and/or Federa law, including\nthe Uniform Trade Secrets Act (as amended and adapted by the states) and the Federa\nDefend Trade Secrets Act of 2016 (the "DTSA"). They include all tangible and intangible (e.g.,\nelectronic) forms and types of information that is held and kept confidentia by the Company\nand is not generally known outside of the Company, including but not limited to information\nabout: the Company's financial, business, scientific, technical, economic, or engineering\ninformation, including patterns, plans, compilations, program devices, formulas, designs,\nprototypes, methods, techniques, processes, procedures, programs or codes, and may in\nparticular include such things as pricing information, business records, software programs,\nalgorithms, inventions, patent applications, and designs and processes not known outside the\nCompany.\n(ii)l or purposes of this Non-Compete Agreement, "Confidential Information" means\nTrade Secrets and, more broadly, any other tangible and intangible (e.g., electronic) forms and\ntypes of information that are held and kept confidential by the Company and are not generally\nknown outside the Company, and which relates to the actual or anticipated business of the\nCompany or the Company's actual or prospective vendors or clients. Confidential Information\nshall\nnot\nbe\nconsidered\ngenerally\nknown\nto\nthe\npublic\nif\nis\nrevealed\nimproperly\nto\nthe\npublic\nby\nme or others without the Company's express written consent and/or in violation of an obligation\nof confidentiality to the Company. E xamples of Confidentia Information include, but are not\nlimited to: customer, referra source, supplier and contractor identification and contacts; special\ncontract terms; pricing and margins; business, marketing and customer plans and strategies;\nfinancial data; company created (or licensed) techniques; technical know-how; research,\ndevelopment\nand\nproduction\ninformation;\nprocesses,\nprototypes,\nsoftware,\npatent\napplications\nand plans, projections, proposals, discussion guides, and/or personal or performance\ninformation about employees.\n(b)I understand that this obligation of non-disclosure shall last so long as the information\nremains confidential. I, however, understand that, if I live and work primarily in Wisconsin, Virginia, or\nany other state requiring a tempora limit on non-disclosure clauses, Confidential Information shall be\nprotected\nfor\ntwo\n(2)\nyears\nfollowing\ntermination\nof\nmy\nemployment\n(for\nany\nreason).\nI\nalso\nunderstand\nthat Trade Secrets are protected by statute and are not subject to any time limits. I also agree to\ncontact the Company before using, disclosing, or distributing any Confidential Information or Trade\nSecrets if I have any questions about whether such information is protected information.\n)The restrictions set forth in this paragraph are in addition to and not in lieu of any obligations\nI have by law with respect to the Company's Confidential Information, including any obligations I may\nowe under the DTSA and any applicable state statutes. Nothing herein shall prohibit me from divulging\nevidence of crimina wrongdoing to law enforcement or prohibit me from disclosing Confidentia\nInformation or Trade Secrets if compelled by order of court or an agency of competent jurisdiction or\nas\nrequired\nby\nlaw;\nhowever,\nI\nshall\npromptly\ninform\nthe\nCompany\nof\nany\nsuch\nsituations\nand\nshall\ntake\nreasonable steps to prevent disclosure of Confidential Information or Trade ecrets until the Company\nhas been informed of such required disclosure and has had a reasonable opportunity to seek a\nprotective order. Pursuant to the DTSA, I understand that an individual may not be held criminally or\ncivilly liable under any federa or state trade secret law for the disclosure of a Trade Secret that: (A) is\nmade (i) in confidence to a federal, state or local government official, either directly or indirectly, or to\nan\nattorney,\nand\n(ii)\nsolely\nfor\nthe\npurpose\nof\nreporting\nor\ninvestigating\na\nsuspected\nviolation\nof\nlaw;\nor\n(B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is\nmade under seal Additionally, I understand that an individua who files a lawsuit for retaliation by an\nemployer for reporting a suspected violation of law may disclose the Trade Secret to his or her\nattorney and use the Trade Secret information in the court proceeding, so long as any document\ncontaining the Trade Secret is filed under seal and the individual does not disclose the Trade Secret,\nexcept pursuant to court order. Nothing in this Non-Compete Agreement\n(OGRSURT2020)\nis intended to conflict with the DTSA or create liability for disclosures of Trade Secrets that are\nexpressly allowed by DTSA.\n2.Non-Competition. agree that during my employment with the Company and for twelve (12)\nmonths after the termination of my employment (for any reason), I will not, directly or indirectly have\nResponsibilities with respect to any Competing Business Line. As set forth in paragraph 9(a) below, I\nunderstand that the restrictions in this paragraph apply no matter whether my employment is\nterminated\nby\nme\nor\nthe\nCompany\nand\nno\nmatter\nwhether\nthat\ntermination\nis\nvoluntary\nor\ninvoluntary.\nThese restrictions shall not apply to passive investments of less than five percent (5%) ownership\ninterest in any entity. For purposes of this Non-Compete Agreement, "Responsibilities" means the\nsame or similar material responsibilities I performed for the Company during the two (2) years prior\nto\nmy last day of employment with the Company and within the same geographic scope, or portion\nthereof, where I performed those responsibilities for the Company. For purposes of this Non-Compete\nAgreement,\n"Competing\nBusiness\nLine"\nmeans\nany\nbusiness\nthat\nis\nin\ncompetition\nwith\nany\nbusiness engaged in by the Company and for which I had Responsibilities during the two (2) years\nprior to my last day of employment with the Company. Competing Business Line shall also include\nbusinesses or business lines that may not be directly competitive with the Company in most respects\n(such as pharmacy benefit managers), but only to the extent I am engaged by any such business in a\nrole: (a) that involves my performing Responsibilities for Competing Products or Services; or (b) where\nI would be called upon to inevitably rely upon or disclose Confidentia Information and such reliance\nor\ndisclosure would competitively harm the Company. For purposes of this Non-Compete Agreement,\n"Competing Products or Services" means products or services that are competitive with products or\nservices offered by, developed by, designed by or distributed by the Company during the two (2) years\nprior to my last day of employment with the Company.\n3. Non-Solicitation. I agree that during my employment with the Company and for two (2) years after\nthe termination of my employment from the Company (for any reason):\n(a)\nI will not directly or indirectly, solicit any Restricted Customer for purposes of providing\nCompeting Products or Services, or offer, provide or sell Competing Products or Services to any\nRestricted Customer. For purposes of this Non-Compete Agreement, "Restricted Customer" means\nany\nperson,\ncompany\nor\nentity\nthat\nwas\na\ncustomer,\nvendor,\nsupplier\nor\nreferral\nsource\nof\nthe\nCompany and with which I had direct contact for purposes of performing responsibilities for the\nCompany or for which I had supervisory responsibilities on behalf of the Company, in either case at\nany time during the two (2) years prior to my last day of employment with the Company. To the extent\npermitted by applicable law, "Restricted Customer" also means any prospective customer(s),\nvendor(s), supplier(s) or referral source(s) with which I had business contact on behalf of the Company\nin the twelve (12) months prior to my last day of employment with the Company; and\n(b) I will not, nor will I assist any third party to, directly or indirectly (i) raid, solicit, or attempt to\npersuade any then-current employee of the Company with whom I currently work or with whom I had\ndirect contact work during the two years prior to my last day of employment with the Company, and\nwho possesses or had access to Confidential Information of the Company, to leave the employ of the\nCompany; (ii) interfere with the performance by any such employee of his/her duties for the Company;\nand/or (iii) communicate with any such employee for the purposes described in items (i) and (ii) in this\nsubparagraph 3(b).\n4. Non-Inducement. I will not directly or indirectly assist or encourage any person or entity in carrying\nout or conducting any activity that would be prohibited by this Non-Compete Agreement if such activity were\ncarried out or conducted by me.\n5.\nNon-Disparagement During my employment with the Company and thereafter, I agree not to\nmake negative comments or otherwise disparage the Company or any of its officers, directors, employees,\n(OGRSURT2020\nshareholders, members, agents or products. The foregoing shall not be violated by truthful statements in\nresponse to legal process, required governmental testimony or filings, or administrative or arbitral proceedings\n(including, without limitation, depositions in connection with such proceedings); and the foregoing shall not\napply to any claims for harassment or discrimination to the extent so restricted by applicable state law.\n6. Intellectual Property. The term "Intellectual Property" shall mean all trade secrets, ideas,\ninventions, designs, developments, devices, software, computer programs, methods and processes (whether\nor not patented or patentable, reduced to practice or included in the Confidential Information) and all patents\nand\npatent\napplications\nrelated\nthereto,\nall\ncopyrights,\ncopyrightable\nworks\nand\nmask\nworks\n(whether\nor\nnot\nincluded in the Confidential Information) and all registrations and applications for registration related thereto,\nall Confidential Information, and all other proprietary rights contributed to, or conceived or created by, or\nreduced to practice by Employee or anyone acting on his/her behalf (whether alone or jointly with others) at\nany time from the beginning of Employee's employment with the Company to the termination of that\nemployment\nplus\nninety\n(90)\ndays,\nthat\n(i)\nrelate\nto\nthe\nbusiness\nor\nto\nthe\nactual\nor\nanticipated\nresearch\nor\ndevelopment of the Company; (ii) result from any services that mployee or anyone acting on its behalf\nperform for the Company; or (iii) are created using the equipment, supplies or facilities of the Company or any\nConfidential Information.\na.Ownership. All Intellectua Property is, shall be and shall remain the exclusive property of the\nCompany. Employee hereby assigns to the Company all right, title and interest, if any, in and to the\nIntellectua Property; provided, however, that, when applicable, the Company shall own the copyrights\nin all copyrightable works included in the Intellectual Property pursuant to the "work-made-for-hire"\ndoctrine (rather than by assignment), as such term is defined in the 1976 Copyright Act. All Intellectual\nProperty shall be owned by the Company irrespective of any copyright notices or confidentiality\nlegends to the contrary that may be placed on such works by Employee or by others. mployee shall\nensure that all copyright notices and confidentiality legends on all work product authored by Employee\nor anyone acting on his/her behalf shall conform to the Company's practices and shal specify the\nCompany as the owner of the work. The Company hereby provides notice to Employee that the\nobligation to assign does not apply to an invention for which no equipment, supplies, facility, or Trade\nSecrets of the Company was used and which was developed entirely on the Employee's own time,\nunless (i) the invention relates (1) to the business of the Company, or (2) to the Company's actua or\ndemonstrably anticipated research or development, or (ii) the invention results from any work\nperformed by Employee for the Company.\n.Keep Records. mployee shall keep and maintain, or cause to be kept and maintained by\nanyone acting on his/her behalf, adequate and current written records of all Intellectual Property in the\nform of notes, sketches, drawings, computer files, reports or other documents relating thereto. Such\nrecords shal be and shall remain the exclusive property of the Company and shal be available to the\nCompany at all times during my employment with the Company.\nC.Assistance. Employee shall supply all assistance requested in securing for the Company's\nbenefit any patent, copyright trademark, service mark, license, right or other evidence of ownership of\nany such Intellectual Property, and will provide full information regarding any such item and execute all\nappropriate documentation prepared by Company in applying or otherwise registering, in the\nCompany's name, all rights to any such item or the defense and protection of such Intellectua\nProperty.\nd.P rior Inventions. Employee has disclosed to the Company any continuing obligations to any\nthird party with respect to Intellectual Property. Employee claims no rights to any inventions created\nprior to his/her employment for which a patent application has not previously been filed, unless he/she\nhas described them in detail on a schedule attached to this Non-Compete Agreement.\n(OGRSURT2020)\ne.Trade Secret Provisions. The provisions in paragraph 1 of this Non-Compete Agreement with\nregard to Trade Secrets and the DTSA shall apply as well in the context of the parties' Intellectual\nProperty rights and obligations.\n7.\nReturn of Company Property. I agree that all documents and data accessible to me during my\nemployment with the Company, including Confidential Information and Trade Secrets, regardless of format\n(electronic or hard copy), including but not limited to any Company computer, monitor, printer equipment,\nexternal\ndrives,\nwireless\naccess\nequipment,\ntelecom\nequipment\nand\nsystems\n("Company\nEquipment"),\nare\nand remain the sole and exclusive property of the Company and/or its clients, and must be returned to the\nCompany upon separation or upon demand by the Company. I further agree that I will provide passwords to\naccess such Company Equipment and I will not print, retain, copy, destroy, modify or erase Company U.S.\ndata on Company Equipment or otherwise wipe Company Equipment prior to returning the Company\nEquipment.\n8. Consideration and Acknowledgments. acknowledge and agree that the covenants described in\nthis Non-Compete Agreement are essential terms, and the underlying Restricted Stock Units would not be\nprovided by the Company in the absence of these covenants. I further acknowledge that these covenants are\nsupported by adequate consideration as set forth in this lon-Compete Agreement and are not in conflict with\nany public interest. I further acknowledge and agree that I fully understand these covenants, have had ful and\ncomplete opportunity to discuss and resolve any ambiguities or uncertainties regarding these covenants\nbefore\nsigning this Non-Compete Agreement and have voluntarily agreed to comply with these covenants\nfor\ntheir stated terms I further acknowledge and agree that these covenants are reasonable and enforceable in\nall respects.\n9. Enforceability; General rovisions.\n(a)\nI agree that the restrictions contained in this Non-Compete Agreement are reasonable\nand necessary to protect the Company's legitimate business interests and that full compliance with the\nterms of this Non-Compete Agreement will not prevent me from earning a livelihood following the\ntermination of my employment, and that these covenants do not place undue restraint on me. I further\nunderstand that the restrictions in this Non-Compete Agreement apply no matter whether my\nemployment is terminated by me or the Company and no matter whether that termination is voluntary\nor involuntary.\n(b) Because the Company's current base of operations is in Illinois and my connections\nthereto, (i) this Non-Compete Agreement shall be governed by and construed in accordance with the\nlaws of the State of Illinois, where this Non-Compete Agreement is entered into, without giving effect to\nany conflict of law provisions, and (ii) I consent to personal jurisdiction and the exclusive jurisdiction of\nthe state and federal courts of Illinois with respect to any claim, dispute or declaration arising out of this\nNon-Compete Agreement.\n(c)\nIn the event of a breach or a threatened breach of this Non-Compete Agreement, I\nacknowledge that the Company will face irreparable injury which may be difficult to calculate in dollar\nterms and that the Company shall be entitled, in addition to all remedies otherwise available in law or\nin equity, to temporary restraining orders and preliminary and final injunctions enjoining such breach or\nthreatened breach in any court of competent jurisdiction without the necessity of posting a surety bond,\nas well as to obtain an equitable accounting of all profits or benefits arising out of any violation of this\nNon-Compete Agreement.\n(d)\nI agree that if a court determines that any of the provisions in this Non-Compete\nAgreement is unenforceable or unreasonable in duration, territory, or scope, then that court shall\nmodify those provisions SO they are reasonable and enforceable, and enforce those provisions as\nmodified.\n(OGRSURT2020\n(e) If any one or more provisions (including paragraphs, subparagraphs and terms) of this\nNon-Compete Agreement or its application is determined to be invalid, illegal, or unenforceable to any\nextent or for any reason by a court of competent jurisdiction, I agree that the remaining provisions\n(including paragraphs, subparagraphs and terms) of this Non-Compete Agreement will still be valid\nand the provision declared to be invalid or illegal or unenforceable will be considered to be severed\nand deleted from the rest of this lon-Compete Agreement. I further agree that if any court of\ncompetent jurisdiction finds any of the restrictions set forth in this Non-Compete Agreement to be\noverly broad and unenforceable, the restriction shall be interpreted to extend only over the maximum\ntime period, geographic area, or range of activities or clients that such court deems enforceable\n(f)\nNotwithstanding the foregoing provisions of this Non-Compete Agreement the\nnon-competition provisions of paragraph 2 above shall not restrict Employee from performing legal\nservices as a licensed attorney for a Competing Business to the extent that the attorney licensure\nrequirements in the applicable jurisdiction do not permit mployee to agree to the otherwise applicable\nrestrictions of paragraph 2.\n(g) Waiver of any of the provisions of this Non-Compete Agreement by the Company in any\nparticular instance shall not be deemed to be a waiver of any provision in any other instance and/or of\nthe Company's other rights at law or under this Non-Compete Agreement.\n(h)\nI agree that the Company may assign this Non-Compete Agreement to its successors and\nassigns and that any such successor or assign may stand in the Company's stead for purposes of\nenforcing this Non-Compete Agreement.\n(i)\nI agree to reimburse the Company for all attorneys' fees, costs, and expenses that it\nreasonably incurs in connection with enforcing its rights and remedies under this Non-Compete\nAgreement, but only to the extent the Company is ultimately the prevailing party in the applicable legal\nproceedings.\n(j) I understand and agree that, where allowed by applicable law, the time for my obligations\nset out in paragraphs 2 6 shal be extended for period of non-compliance up to an additional two (2)\nyears following my last day of employment with the Company (for any reason).\n(k)\nI fully understand my obligations in this Non-Compete Agreement, have had full and\ncomplete opportunity to discuss and resolve any ambiguities or uncertainties regarding these\ncovenants before signing this Non-Compete Agreement, and have voluntarily agreed to comply with\nthese covenants for their stated terms.\n(I)\nI agree that all non-competition, non-solicitation, non-disclosure and use, non-recruiting,\nand disclosure obligations in this Non-Compete Agreement shall survive any termination of this\nNon-Compete Agreement and extend to the proscribed periods following my last day of employment\nwith the Company (for any reason) and no dispute regarding any other provisions of this Non-Compete\nAgreement or regarding my employment or the termination of my employment shall prevent the\noperation and enforcement of these obligations.\n(m) I understand that nothing in this Non-Compete Agreement, including the non-disclosure\nand non-disparagement provisions, limit my ability to file a charge or complaint with the Equal\nEmployment\nOpportunity\nCommission,\nDepartment\nof\nLabor,\nNational\nLabor\nRelations\nBoard,\nOccupational Safety and Health Administration, Securities and Exchange Commission or any other\nfederal, state or local governmental agency or commission. I also understand that this Non-Compete\nAgreement does not limit my ability to communicate with any government agencies or otherwise\nparticipate in any investigation or proceeding that may be conducted by any government agency,\nincluding providing documents or other information, without notice to the Company. Finally, I\n(OGRSURT2020)\nunderstand that nothing in this Non-Compete Agreement is intended to restrict my legally-protected\nright to discuss wages, hours or other working condition with co-workers, or in any way limit my rights\nunder the Nationa Labor Relations Act or any whistleblower act.\n10. Relationship of Parties. I acknowledge that my relationship with the Company is "terminable at\nwill" by either party and that the Company or I can terminate the relationship with or without cause and without\nfollowing any specific procedures. Nothing contained in this Non-Compete Agreement is intended to or shall\nbe relied upon to alter the "terminable at will" relationship between the parties. I agree that my obligations in\nthis Non-Compete Agreement shall survive the termination of my employment from the Company for any\nreason and shall be binding upon my successors, heirs, executors and representatives.\n11.\nModifications and Other Agreements. I agree that the terms of this Non-Compete Agreement\nmay\nnot\nbe\nmodified\nexcept\nby\na\nwritten\nagreement\nsigned\nby\nboth\nme\nand\nthe\nCompany.\nThis\non-Compete\nAgreement shall not supersede any other restrictive covenants to which I may be subject under an\nemployment contract, benefit program or otherwise, such that the Company may enforce the terms of any and\nall\nrestrictive covenants to which am subject The obligations herein are in addition to and do not limit any\nobligations arising under applicable statutes and common law.\n12. State and Commonwealth Law Modifications. I agree that if I primarily reside and work in\nCalifornia, Massachusetts, Puerto Rico, South Carolina, Washington or Wisconsin, I am subject to the\nmodifications to this Non-Compete Agreement set forth in xhibit A-1 applying to such state and to the extent\nsuch state law applies.\n13. Notification. I agree that in the event I am offered employment at any time in the future with any\nentity that may be considered a Competing Business Line, I shall immediately notify such Competing\nBusiness\nof\nthe\nexistence\nand\nterms\nof\nthis\nNon-Compete\nAgreement.\nI\nalso\nunderstand\nand\nagree\nthat\nthe\nCompany may notify anyone attempting to or later employing me of the existence and provisions of this\nNon-Compete Agreement.\n*k *k *kk *kk *xk\nBy clicking the acceptance box for this grant agreement, I acknowledge receipt of the Restricted Stock\nUnit Award Agreement to which this Non-Compete Agreement is attached as Exhibit A, and I agree to the\nterms and conditions expressed in this Non-Compete Agreement, including the modifications set forth in\nExhibit A-1, as applicable.	EXHIBIT A\nWALGREENS BOOTS ALLIANCE, INC. NON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nThis Exhibit (the "Non-Compete Agreement") forms a part of the Restricted Stock Unit Award\nAgreement covering Restricted Stock Units awarded to an employee ("Employee" or "I") of Walgreens Boots\nAlliance, Inc. or an affiliate thereof, on behalf of itself, its affiliates, subsidiaries, and successors (collectively\nreferred to as the "Company").\nWHEREAS, the Company develops and/or uses valuable business, technical, proprietary, customer\nand patient information it protects by limiting its disclosure and by keeping it secret or confidential;\nWHEREAS, Employee acknowledges that during the course of employment, he or she has or will\nreceive, contribute, or develop such Confidential Information and Trade Secrets (as defined below); and\nWHEREAS, the Company desires to protect from its competitors such Confidential Information and\nTrade Secrets and also desires to protect its legitimate business interests and goodwill in maintaining its\nemployee and customer relationships.\nNOW THEREFORE, in consideration of the Restricted Stock Units issued to Employee pursuant to the\nAgreement to which this is attached as Exhibit A and for other good and valuable consideration, including but\nnot limited to employment or continued employment, the specialized knowledge, skill and training that the\nCompany provides Employee, the goodwill that Employee develops with customers on behalf of the\nCompany, Employee agrees to be bound by the terms of this Non-Compete Agreement as follows:\n1.Confidentiality.\n(a)At all times during and after the termination of my employment with the Company, I will not,\nwithout the Company’s prior written permission, directly or indirectly for any purpose other than\nperformance of my duties for the Company, utilize or disclose to anyone outside of the Company any\nTrade Secrets (defined in subparagraph 1(a)(i)) or other Confidential Information (defined in\nsubparagraph 1(a)(ii)) or any information received by the Company in confidence from or about third\nparties, as long as such matters remain Trade Secrets or otherwise confidential.\n(OGRSURT2020)\n(i)For purposes of this Non-Compete Agreement, “Trade Secrets” means a form of\nintellectual property that are protectable under applicable state and/or Federal law, including\nthe Uniform Trade Secrets Act (as amended and adapted by the states) and the Federal\nDefend Trade Secrets Act of 2016 (the “DTSA”). They include all tangible and intangible (e.g.,\nelectronic) forms and types of information that is held and kept confidential by the Company\nand is not generally known outside of the Company, including but not limited to information\nabout: the Company’s financial, business, scientific, technical, economic, or engineering\ninformation, including patterns, plans, compilations, program devices, formulas, designs,\nprototypes, methods, techniques, processes, procedures, programs or codes, and may in\nparticular include such things as pricing information, business records, software programs,\nalgorithms, inventions, patent applications, and designs and processes not known outside the\nCompany.\n(ii)For purposes of this Non-Compete Agreement, “Confidential Information” means\nTrade Secrets and, more broadly, any other tangible and intangible (e.g ., electronic) forms and\ntypes of information that are held and kept confidential by the Company and are not generally\nknown outside the Company, and which relates to the actual or anticipated business of the\nCompany or the Company’s actual or prospective vendors or clients. Confidential Information\nshall not be considered generally known to the public if is revealed improperly to the public by\nme or others without the Company’s express written consent and/or in violation of an obligation\nof confidentiality to the Company. Examples of Confidential Information include, but are not\nlimited to: customer, referral source, supplier and contractor identification and contacts; special\ncontract terms; pricing and margins; business, marketing and customer plans and strategies;\nfinancial data; company created (or licensed) techniques; technical know-how; research,\ndevelopment and production information; processes, prototypes, software, patent applications\nand plans, projections, proposals, discussion guides, and/or personal or performance\ninformation about employees.\n(b)I understand that this obligation of non-disclosure shall last so long as the information\nremains confidential. I, however, understand that, if I live and work primarily in Wisconsin, Virginia, or\nany other state requiring a temporal limit on non-disclosure clauses, Confidential Information shall be\nprotected for two (2) years following termination of my employment (for any reason). I also understand\nthat Trade Secrets are protected by statute and are not subject to any time limits. I also agree to\ncontact the Company before using, disclosing, or distributing any Confidential Information or Trade\nSecrets if I have any questions about whether such information is protected information.\n(c)The restrictions set forth in this paragraph are in addition to and not in lieu of any obligations\nI have by law with respect to the Company’s Confidential Information, including any obligations I may\nowe under the DTSA and any applicable state statutes. Nothing herein shall prohibit me from divulging\nevidence of criminal wrongdoing to law enforcement or prohibit me from disclosing Confidential\nInformation or Trade Secrets if compelled by order of court or an agency of competent jurisdiction or\nas required by law; however, I shall promptly inform the Company of any such situations and shall take\nreasonable steps to prevent disclosure of Confidential Information or Trade Secrets until the Company\nhas been informed of such required disclosure and has had a reasonable opportunity to seek a\nprotective order. Pursuant to the DTSA, I understand that an individual may not be held criminally or\ncivilly liable under any federal or state trade secret law for the disclosure of a Trade Secret that: (A) is\nmade (i) in confidence to a federal, state or local government official, either directly or indirectly, or to\nan attorney, and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or\n(B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is\nmade under seal. Additionally, I understand that an individual who files a lawsuit for retaliation by an\nemployer for reporting a suspected violation of law may disclose the Trade Secret to his or her\nattorney and use the Trade Secret information in the court proceeding, so long as any document\ncontaining the Trade Secret is filed under seal and the individual does not disclose the Trade Secret,\nexcept pursuant to court order. Nothing in this Non-Compete Agreement\n(OGRSURT2020)\nis intended to conflict with the DTSA or create liability for disclosures of Trade Secrets that are\nexpressly allowed by DTSA.\n2.Non-Competition. I agree that during my employment with the Company and for twelve (12)\nmonths after the termination of my employment (for any reason), I will not, directly or indirectly have\nResponsibilities with respect to any Competing Business Line. As set forth in paragraph 9(a) below, I\nunderstand that the restrictions in this paragraph apply no matter whether my employment is\nterminated by me or the Company and no matter whether that termination is voluntary or involuntary.\nThese restrictions shall not apply to passive investments of less than five percent (5%) ownership\ninterest in any entity. For purposes of this Non-Compete Agreement, “Responsibilities” means the\nsame or similar material responsibilities I performed for the Company during the two (2) years prior to\nmy last day of employment with the Company and within the same geographic scope, or portion\nthereof, where I performed those responsibilities for the Company. For purposes of this Non-Compete\nAgreement, “Competing Business Line” means any business that is in competition with any\nbusiness engaged in by the Company and for which I had Responsibilities during the two (2) years\nprior to my last day of employment with the Company. Competing Business Line shall also include\nbusinesses or business lines that may not be directly competitive with the Company in most respects\n(such as pharmacy benefit managers), but only to the extent I am engaged by any such business in a\nrole: (a) that involves my performing Responsibilities for Competing Products or Services; or (b) where\nI would be called upon to inevitably rely upon or disclose Confidential Information and such reliance or\ndisclosure would competitively harm the Company. For purposes of this Non-Compete Agreement,\n“Competing Products or Services” means products or services that are competitive with products or\nservices offered by, developed by, designed by or distributed by the Company during the two (2) years\nprior to my last day of employment with the Company.\n3. Non-Solicitation. I agree that during my employment with the Company and for two (2) years after\nthe termination of my employment from the Company (for any reason):\n(a) I will not directly or indirectly, solicit any Restricted Customer for purposes of providing\nCompeting Products or Services, or offer, provide or sell Competing Products or Services to any\nRestricted Customer. For purposes of this Non-Compete Agreement, “Restricted Customer” means\nany person, company or entity that was a customer, vendor, supplier or referral source of the\nCompany and with which I had direct contact for purposes of performing responsibilities for the\nCompany or for which I had supervisory responsibilities on behalf of the Company, in either case at\nany time during the two (2) years prior to my last day of employment with the Company. To the extent\npermitted by applicable law, “Restricted Customer” also means any prospective customer(s),\nvendor(s), supplier(s) or referral source(s) with which I had business contact on behalf of the Company\nin the twelve (12) months prior to my last day of employment with the Company; and\n(b) I will not, nor will I assist any third party to, directly or indirectly (i) raid, solicit, or attempt to\npersuade any then-current employee of the Company with whom I currently work or with whom I had\ndirect contact work during the two years prior to my last day of employment with the Company, and\nwho possesses or had access to Confidential Information of the Company, to leave the employ of the\nCompany; (ii) interfere with the performance by any such employee of his/her duties for the Company;\nand/or (iii) communicate with any such employee for the purposes described in items (i) and (ii) in this\nsubparagraph 3(b).\n4. Non-Inducement. I will not directly or indirectly assist or encourage any person or entity in carrying\nout or conducting any activity that would be prohibited by this Non-Compete Agreement if such activity were\ncarried out or conducted by me.\n5. Non-Disparagement. During my employment with the Company and thereafter, I agree not to\nmake negative comments or otherwise disparage the Company or any of its officers, directors, employees,\n(OGRSURT2020)\nshareholders, members, agents or products. The foregoing shall not be violated by truthful statements in\nresponse to legal process, required governmental testimony or filings, or administrative or arbitral proceedings\n(including, without limitation, depositions in connection with such proceedings); and the foregoing shall not\napply to any claims for harassment or discrimination to the extent so restricted by applicable state law.\n6.\nIntellectual Property. The term “Intellectual Property” shall mean all trade secrets, ideas,\ninventions, designs, developments, devices, software, computer programs, methods and processes (whether\nor not patented or patentable, reduced to practice or included in the Confidential Information) and all patents\nand patent applications related thereto, all copyrights, copyrightable works and mask works (whether or not\nincluded in the Confidential Information) and all registrations and applications for registration related thereto,\nall Confidential Information, and all other proprietary rights contributed to, or conceived or created by, or\nreduced to practice by Employee or anyone acting on his/her behalf (whether alone or jointly with others) at\nany time from the beginning of Employee’s employment with the Company to the termination of that\nemployment plus ninety (90) days, that (i) relate to the business or to the actual or anticipated research or\ndevelopment of the Company; (ii) result from any services that Employee or anyone acting on its behalf\nperform for the Company; or (iii) are created using the equipment, supplies or facilities of the Company or any\nConfidential Information.\na.Ownership. All Intellectual Property is, shall be and shall remain the exclusive property of the\nCompany. Employee hereby assigns to the Company all right, title and interest, if any, in and to the\nIntellectual Property; provided, however, that, when applicable, the Company shall own the copyrights\nin all copyrightable works included in the Intellectual Property pursuant to the “work-made-for-hire”\ndoctrine (rather than by assignment), as such term is defined in the 1976 Copyright Act. All Intellectual\nProperty shall be owned by the Company irrespective of any copyright notices or confidentiality\nlegends to the contrary that may be placed on such works by Employee or by others. Employee shall\nensure that all copyright notices and confidentiality legends on all work product authored by Employee\nor anyone acting on his/her behalf shall conform to the Company’s practices and shall specify the\nCompany as the owner of the work. The Company hereby provides notice to Employee that the\nobligation to assign does not apply to an invention for which no equipment, supplies, facility, or Trade\nSecrets of the Company was used and which was developed entirely on the Employee’s own time,\nunless (i) the invention relates (1) to the business of the Company, or (2) to the Company’s actual or\ndemonstrably anticipated research or development, or (ii) the invention results from any work\nperformed by Employee for the Company.\nb.Keep Records. Employee shall keep and maintain, or cause to be kept and maintained by\nanyone acting on his/her behalf, adequate and current written records of all Intellectual Property in the\nform of notes, sketches, drawings, computer files, reports or other documents relating thereto. Such\nrecords shall be and shall remain the exclusive property of the Company and shall be available to the\nCompany at all times during my employment with the Company.\nc.Assistance. Employee shall supply all assistance requested in securing for the Company’s\nbenefit any patent, copyright, trademark, service mark, license, right or other evidence of ownership of\nany such Intellectual Property, and will provide full information regarding any such item and execute all\nappropriate documentation prepared by Company in applying or otherwise registering, in the\nCompany’s name, all rights to any such item or the defense and protection of such Intellectual\nProperty.\nd.Prior Inventions. Employee has disclosed to the Company any continuing obligations to any\nthird party with respect to Intellectual Property. Employee claims no rights to any inventions created\nprior to his/her employment for which a patent application has not previously been filed, unless he/she\nhas described them in detail on a schedule attached to this Non-Compete Agreement.\n(OGRSURT2020)\ne.Trade Secret Provisions. The provisions in paragraph 1 of this Non-Compete Agreement with\nregard to Trade Secrets and the DTSA shall apply as well in the context of the parties’ Intellectual\nProperty rights and obligations.\n7. Return of Company Property. I agree that all documents and data accessible to me during my\nemployment with the Company, including Confidential Information and Trade Secrets, regardless of format\n(electronic or hard copy), including but not limited to any Company computer, monitor, printer equipment,\nexternal drives, wireless access equipment, telecom equipment and systems (“Company Equipment”), are\nand remain the sole and exclusive property of the Company and/or its clients, and must be returned to the\nCompany upon separation or upon demand by the Company. I further agree that I will provide passwords to\naccess such Company Equipment and I will not print, retain, copy, destroy, modify or erase Company U.S .\ndata on Company Equipment or otherwise wipe Company Equipment prior to returning the Company\nEquipment.\n8. Consideration and Acknowledgments. I acknowledge and agree that the covenants described in\nthis Non-Compete Agreement are essential terms, and the underlying Restricted Stock Units would not be\nprovided by the Company in the absence of these covenants. I further acknowledge that these covenants are\nsupported by adequate consideration as set forth in this Non-Compete Agreement and are not in conflict with\nany public interest. I further acknowledge and agree that I fully understand these covenants, have had full and\ncomplete opportunity to discuss and resolve any ambiguities or uncertainties regarding these covenants\nbefore signing this Non-Compete Agreement, and have voluntarily agreed to comply with these covenants for\ntheir stated terms. I further acknowledge and agree that these covenants are reasonable and enforceable in\nall respects.\n9. Enforceability; General Provisions.\n(a) I agree that the restrictions contained in this Non-Compete Agreement are reasonable\nand necessary to protect the Company’s legitimate business interests and that full compliance with the\nterms of this Non-Compete Agreement will not prevent me from earning a livelihood following the\ntermination of my employment, and that these covenants do not place undue restraint on me. I further\nunderstand that the restrictions in this Non-Compete Agreement apply no matter whether my\nemployment is terminated by me or the Company and no matter whether that termination is voluntary\nor involuntary.\n(b) Because the Company’s current base of operations is in Illinois and my connections\nthereto, (i) this Non-Compete Agreement shall be governed by and construed in accordance with the\nlaws of the State of Illinois, where this Non-Compete Agreement is entered into, without giving effect to\nany conflict of law provisions, and (ii) I consent to personal jurisdiction and the exclusive jurisdiction of\nthe state and federal courts of Illinois with respect to any claim, dispute or declaration arising out of this\nNon-Compete Agreement.\n(c) In the event of a breach or a threatened breach of this Non-Compete Agreement, I\nacknowledge that the Company will face irreparable injury which may be difficult to calculate in dollar\nterms and that the Company shall be entitled, in addition to all remedies otherwise available in law or\nin equity, to temporary restraining orders and preliminary and final injunctions enjoining such breach or\nthreatened breach in any court of competent jurisdiction without the necessity of posting a surety bond,\nas well as to obtain an equitable accounting of all profits or benefits arising out of any violation of this\nNon-Compete Agreement.\n(d)\nI agree that if a court determines that any of the provisions in this Non-Compete\nAgreement is unenforceable or unreasonable in duration, territory, or scope, then that court shall\nmodify those provisions so they are reasonable and enforceable, and enforce those provisions as\nmodified.\n(OGRSURT2020)\n(e) If any one or more provisions (including paragraphs, subparagraphs and terms) of this\nNon-Compete Agreement or its application is determined to be invalid, illegal, or unenforceable to any\nextent or for any reason by a court of competent jurisdiction, I agree that the remaining provisions\n(including paragraphs, subparagraphs and terms) of this Non-Compete Agreement will still be valid\nand the provision declared to be invalid or illegal or unenforceable will be considered to be severed\nand deleted from the rest of this Non-Compete Agreement. I further agree that if any court of\ncompetent jurisdiction finds any of the restrictions set forth in this Non-Compete Agreement to be\noverly broad and unenforceable, the restriction shall be interpreted to extend only over the maximum\ntime period, geographic area, or range of activities or clients that such court deems enforceable\n(f)\nNotwithstanding the foregoing provisions of this Non-Compete Agreement, the\nnon-competition provisions of paragraph 2 above shall not restrict Employee from performing legal\nservices as a licensed attorney for a Competing Business to the extent that the attorney licensure\nrequirements in the applicable jurisdiction do not permit Employee to agree to the otherwise applicable\nrestrictions of paragraph 2.\n(g) Waiver of any of the provisions of this Non-Compete Agreement by the Company in any\nparticular instance shall not be deemed to be a waiver of any provision in any other instance and/or of\nthe Company’s other rights at law or under this Non-Compete Agreement.\n(h) I agree that the Company may assign this Non-Compete Agreement to its successors and\nassigns and that any such successor or assign may stand in the Company’s stead for purposes of\nenforcing this Non-Compete Agreement.\n(i)\nI agree to reimburse the Company for all attorneys’ fees, costs, and expenses that it\nreasonably incurs in connection with enforcing its rights and remedies under this Non-Compete\nAgreement, but only to the extent the Company is ultimately the prevailing party in the applicable legal\nproceedings.\n(j) I understand and agree that, where allowed by applicable law, the time for my obligations\nset out in paragraphs 2 - 6 shall be extended for period of non-compliance up to an additional two (2)\nyears following my last day of employment with the Company (for any reason).\n(k) I fully understand my obligations in this Non-Compete Agreement, have had full and\ncomplete opportunity to discuss and resolve any ambiguities or uncertainties regarding these\ncovenants before signing this Non-Compete Agreement, and have voluntarily agreed to comply with\nthese covenants for their stated terms.\n(l) I agree that all non-competition, non-solicitation, non-disclosure and use, non-recruiting,\nand disclosure obligations in this Non-Compete Agreement shall survive any termination of this\nNon-Compete Agreement and extend to the proscribed periods following my last day of employment\nwith the Company (for any reason) and no dispute regarding any other provisions of this Non-Compete\nAgreement or regarding my employment or the termination of my employment shall prevent the\noperation and enforcement of these obligations.\n(m) I understand that nothing in this Non-Compete Agreement, including the non-disclosure\nand non-disparagement provisions, limit my ability to file a charge or complaint with the Equal\nEmployment Opportunity Commission, Department of Labor, National Labor Relations Board,\nOccupational Safety and Health Administration, Securities and Exchange Commission or any other\nfederal, state or local governmental agency or commission. I also understand that this Non-Compete\nAgreement does not limit my ability to communicate with any government agencies or otherwise\nparticipate in any investigation or proceeding that may be conducted by any government agency,\nincluding providing documents or other information, without notice to the Company. Finally, I\n(OGRSURT2020)\nunderstand that nothing in this Non-Compete Agreement is intended to restrict my legally-protected\nright to discuss wages, hours or other working condition with co-workers, or in any way limit my rights\nunder the National Labor Relations Act or any whistleblower act.\n10. Relationship of Parties. I acknowledge that my relationship with the Company is “terminable at\nwill” by either party and that the Company or I can terminate the relationship with or without cause and without\nfollowing any specific procedures. Nothing contained in this Non-Compete Agreement is intended to or shall\nbe relied upon to alter the “terminable at will” relationship between the parties. I agree that my obligations in\nthis Non-Compete Agreement shall survive the termination of my employment from the Company for any\nreason and shall be binding upon my successors, heirs, executors and representatives.\n11. Modifications and Other Agreements. I agree that the terms of this Non-Compete Agreement\nmay not be modified except by a written agreement signed by both me and the Company. This Non-Compete\nAgreement shall not supersede any other restrictive covenants to which I may be subject under an\nemployment contract, benefit program or otherwise, such that the Company may enforce the terms of any and\nall restrictive covenants to which I am subject. The obligations herein are in addition to and do not limit any\nobligations arising under applicable statutes and common law.\n12. State and Commonwealth Law Modifications. I agree that if I primarily reside and work in\nCalifornia, Massachusetts, Puerto Rico, South Carolina, Washington or Wisconsin, I am subject to the\nmodifications to this Non-Compete Agreement set forth in Exhibit A-1 applying to such state and to the extent\nsuch state law applies.\n13. Notification. I agree that in the event I am offered employment at any time in the future with any\nentity that may be considered a Competing Business Line, I shall immediately notify such Competing\nBusiness of the existence and terms of this Non-Compete Agreement. I also understand and agree that the\nCompany may notify anyone attempting to or later employing me of the existence and provisions of this\nNon-Compete Agreement.\n*** *** *** *** ***\nBy clicking the acceptance box for this grant agreement, I acknowledge receipt of the Restricted Stock\nUnit Award Agreement to which this Non-Compete Agreement is attached as Exhibit A, and I agree to the\nterms and conditions expressed in this Non-Compete Agreement, including the modifications set forth in\nExhibit A-1, as applicable.
772c74abe4020e8cddb8d8fbcc3c3ea4.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 8 d197291dex99d3.htm EX-99.(D)(3)\nExhibit (d)(3)\nConfidential Disclosure Agreement\nThis mutual Confidential Disclosure Agreement (the “Agreement”) is made effective as of December 22, 2014 (the “Effective Date”) and\nwill confirm recent discussions between Jazz Pharmaceuticals plc with a principal place of business at Fourth Floor Connaught House, One\nBurlington Road, Dublin 4, Ireland (together with its subsidiaries, “Jazz Pharmaceuticals”) and Celator Pharmaceuticals, Inc. with a principal\nplace of business at 200 PrincetonSouth Corporate Center, Suite 180, Ewing, New Jersey 08628 USA (“Celator”) concerning a possible business\nrelationship between Celator and Jazz Pharmaceuticals. In order to continue discussions, each party wishes to evaluate certain information and\ndata that the other party considers to be confidential and proprietary, and each party wishes to disclose certain information and data that it\nconsiders to be confidential and proprietary provided that such information and data is received in confidence and used by the other party solely\nto evaluate and negotiate such business relationship (the “Purpose”). Each party agrees to disclose to or allow the other to have access to, and to\nreceive from the other party, confidential and proprietary information, only upon the following terms and conditions:\n1. “Confidential Information” means all information that is disclosed by one party (the “Disclosing Party”) to the other party (the\n“Receiving Party”), either directly or indirectly, including without limitation data, schematics, designs, patent applications, drawings,\nspecifications, technology, samples, models and specimens relating to technologies, products and product concepts discovered or developed or\nbeing explored or developed by the Disclosing Party, or the use, manufacture or marketing thereof, or the Disclosing Party’s related clinical,\nregulatory, manufacturing or marketing affairs, whether in written, graphic, electronic or oral form, with the exception only of the following:\n(a) information that is now in the public domain or subsequently enters the public domain without fault on the part of the\nReceiving Party;\n(b) information that, prior to the date of disclosure hereunder, is known by the Receiving Party from its own sources without\nrestriction, as evidenced by the Receiving Party’s prior written records;\n(c) information received by the Receiving Party without restriction from any third party not under any obligation to keep such\ninformation confidential; and\n(d) information which the Receiving Party proves by clear and convincing evidence was independently developed without the use\nof any of the Disclosing Party’s Confidential Information.\nAny combination of features or disclosures will not be deemed to fall within the foregoing exclusions merely because certain individual features\nare published or available to the general public or in the rightful possession of Receiving Party unless the combination as a whole falls within any\nof the above exceptions.\n2. Each party agrees to maintain in confidence all Confidential Information of the other party and, subject to the express provisions of this\nAgreement, not to disclose such Confidential Information to any third party without the express written consent of such other\nparty, to be given or withheld in the absolute discretion of such other party. Each party shall take all necessary and reasonable precautions to\nprevent the disclosure of Confidential Information of the other party to any unauthorized third parties. In this regard, each party agrees that it will\ndisclose Confidential Information of the other party only to those of its agents, employees and consultants (the “Company Recipients”) who need\nto know such Confidential Information to accomplish the Purpose and who are bound by obligations of confidentiality at least as stringent as\nthose set forth herein. Each party agrees that upon disclosing Confidential Information of the other party to any Company Recipients, such\nCompany Recipients shall be advised of the confidential nature of the information and shall be instructed to take all necessary and reasonable\nprecautions to prevent the unauthorized disclosure thereof. Each party may disclose Confidential Information of the other party to affiliated\ncompanies controlled by, under the control of, or under common control with such party (the “Affiliates” and together with the Company\nRecipients, the “Representatives”), if such Affiliates are bound by obligations of confidentiality at least as stringent as those set forth herein.\nEach party agrees to enforce the terms and provisions of this Agreement as to any Representative who receives any Confidential Information of\nthe other party hereunder and to assume liability for breach of this Agreement by any or all such Representatives. Notwithstanding the foregoing,\nthe Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by applicable laws or regulations or as\nordered by a court or other regulatory body having competent jurisdiction provided that the Receiving Party uses commercially reasonable efforts\nto limit the disclosure and maintain confidentiality to the extent possible and provides reasonable prior written notice to the Disclosing Party.\n3. Each party agrees that it shall not use Confidential Information of the other party for any purpose other than the Purpose without the\nexpress written consent of such other party, to be given or withheld in the absolute discretion of such other party. Each party acknowledges that\nthe use of Confidential Information of the other party for any reason other than the Purpose or disclosure of Confidential Information of the other\nparty without the express written permission of such other party may cause irreparable harm to such other party and that any material breach or\nthreatened material breach of this Agreement by the Receiving Party will entitle the Disclosing Party to seek injunctive relief and reasonable\nattorneys’ fees, in addition to any other legal remedies available to it, in any court of competent jurisdiction.\n4. All Confidential Information disclosed by the Disclosing Party to the Receiving Party pursuant to this Agreement shall be and remain the\nproperty of the Disclosing Party and all written Confidential Information and copies thereof shall he promptly returned or lawfully destroyed\nupon the earlier of the termination of this Agreement or the Disclosing Party’s request, provided that the Receiving Party shall be entitled to\nretain one set of all such information in strict confidence for the sole purpose of monitoring its obligations hereunder.\n5. The term of this Agreement will be for three years from the Effective Date. Either party may terminate this Agreement with 30 days’\nwritten notice to the other party. Each party’s obligations of confidentiality and non-use under this Agreement shall survive any termination and\nshall continue for a period of seven years from the termination of this Agreement for any reason, including the natural end of its term.\n2\n6. Nothing contained herein shall be construed as granting or implying any property rights to the Receiving Party, by license or otherwise,\nto any Confidential Information of the Disclosing Party, or to any invention, or any patent, copyright, trademark or other intellectual property\nright that has issued or may issue based on such Confidential Information.\n7. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or\nof such provision on any other occasion.\n8. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes\nand merges all prior discussions between the parties with respect to such matters. Any amendment, modification or waiver of this Agreement or\nany of its terms must be agreed to in a writing signed by both parties.\n9. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, USA, excluding any choice\nof law rules which may direct the application of the laws of another jurisdiction.\n10. This Agreement will be binding upon, inure to the benefit of, and be enforceable by and against the successors and assigns of each\nparty; provided, however, that no assignment of this Agreement by a party in its capacity as a Receiving Party shall relieve such party of its\nobligations of confidentiality and non-use under this Agreement.\n11. This Agreement may be executed by the parties in separate counterparts, each of which will be deemed an original but both of which\ntogether will constitute one and the same Agreement. Any photocopy, facsimile or electronic reproduction of the executed Agreement shall\nconstitute an original.\n(Remainder of page left intentionally blank)\n3\nIf the foregoing is acceptable, please have this Agreement executed and dated by an authorized corporate officer and return one fully executed\ncopy to Jazz Pharmaceuticals.\nApproved and accepted as of the Effective Date\nAGREED TO:\nAGREED TO:\nJazz Pharmaceuticals plc\nCelator Pharmaceuticals, Inc.\nName: /s/ Patricia Carr\nName: /s/ Scott T. Jackson\nTitle: VP Finance\nTitle: Chief Executive Officer\n4	EX-99.(D)(3) 8 d197291dex99d3.htm EX-99.(D)(3)\nExhibit (d)(3)\nConfidential Disclosure Agreement\nThis mutual Confidential Disclosure Agreement (the “Agreement”) is made effective as of December 22, 2014 (the “Effective Date”) and\nwill confirm recent discussions between Jazz Pharmaceuticals plc with a principal place of business at Fourth Floor Connaught House, One\nBurlington Road, Dublin 4, Ireland (together with its subsidiaries, “Jazz Pharmaceuticals”) and Celator Pharmaceuticals, Inc. with a principal\nplace of business at 200 PrincetonSouth Corporate Center, Suite 180, Ewing, New Jersey 08628 USA (“Celator”) concerning a possible business\nrelationship between Celator and Jazz Pharmaceuticals. In order to continue discussions, each party wishes to evaluate certain information and\ndata that the other party considers to be confidential and proprietary, and each party wishes to disclose certain information and data that it\nconsiders to be confidential and proprietary provided that such information and data is received in confidence and used by the other party solely\nto evaluate and negotiate such business relationship (the “Purpose). Each party agrees to disclose to or allow the other to have access to, and to\nreceive from the other party, confidential and proprietary information, only upon the following terms and conditions:\n1. “Confidential Information” means all information that is disclosed by one party (the “Disclosing Party”) to the other party (the\n“Receiving Party”), either directly or indirectly, including without limitation data, schematics, designs, patent applications, drawings,\nspecifications, technology, samples, models and specimens relating to technologies, products and product concepts discovered or developed or\nbeing explored or developed by the Disclosing Party, or the use, manufacture or marketing thereof, or the Disclosing Party’s related clinical,\nregulatory, manufacturing or marketing affairs, whether in written, graphic, electronic or oral form, with the exception only of the following:\n(@)  information that is now in the public domain or subsequently enters the public domain without fault on the part of the\nReceiving Party;\n(b)  information that, prior to the date of disclosure hereunder, is known by the Receiving Party from its own sources without\nrestriction, as evidenced by the Receiving Party’s prior written records;\n(c)  information received by the Receiving Party without restriction from any third party not under any obligation to keep such\ninformation confidential; and\n(d)  information which the Receiving Party proves by clear and convincing evidence was independently developed without the use\nof any of the Disclosing Party’s Confidential Information.\nAny combination of features or disclosures will not be deemed to fall within the foregoing exclusions merely because certain individual features\nare published or available to the general public or in the rightful possession of Receiving Party unless the combination as a whole falls within any\nof the above exceptions.\n2. Each party agrees to maintain in confidence all Confidential Information of the other party and, subject to the express provisions of this\nAgreement, not to disclose such Confidential Information to any third party without the express written consent of such other\nparty, to be given or withheld in the absolute discretion of such other party. Each party shall take all necessary and reasonable precautions to\nprevent the disclosure of Confidential Information of the other party to any unauthorized third parties. In this regard, each party agrees that it will\ndisclose Confidential Information of the other party only to those of its agents, employees and consultants (the “Company Recipients”) who need\nto know such Confidential Information to accomplish the Purpose and who are bound by obligations of confidentiality at least as stringent as\nthose set forth herein. Each party agrees that upon disclosing Confidential Information of the other party to any Company Recipients, such\nCompany Recipients shall be advised of the confidential nature of the information and shall be instructed to take all necessary and reasonable\nprecautions to prevent the unauthorized disclosure thereof. Each party may disclose Confidential Information of the other party to affiliated\ncompanies controlled by, under the control of, or under common control with such party (the “Affiliates” and together with the Company\nRecipients, the “Representatives”), if such Affiliates are bound by obligations of confidentiality at least as stringent as those set forth herein.\nEach party agrees to enforce the terms and provisions of this Agreement as to any Representative who receives any Confidential Information of\nthe other party hereunder and to assume liability for breach of this Agreement by any or all such Representatives. Notwithstanding the foregoing,\nthe Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by applicable laws or regulations or as\nordered by a court or other regulatory body having competent jurisdiction provided that the Receiving Party uses commercially reasonable efforts\nto limit the disclosure and maintain confidentiality to the extent possible and provides reasonable prior written notice to the Disclosing Party.\n3. Each party agrees that it shall not use Confidential Information of the other party for any purpose other than the Purpose without the\nexpress written consent of such other party, to be given or withheld in the absolute discretion of such other party. Each party acknowledges that\nthe use of Confidential Information of the other party for any reason other than the Purpose or disclosure of Confidential Information of the other\nparty without the express written permission of such other party may cause irreparable harm to such other party and that any material breach or\nthreatened material breach of this Agreement by the Receiving Party will entitle the Disclosing Party to seek injunctive relief and reasonable\nattorneys’ fees, in addition to any other legal remedies available to it, in any court of competent jurisdiction.\n4. All Confidential Information disclosed by the Disclosing Party to the Receiving Party pursuant to this Agreement shall be and remain the\nproperty of the Disclosing Party and all written Confidential Information and copies thereof shall he promptly returned or lawfully destroyed\nupon the earlier of the termination of this Agreement or the Disclosing Party’s request, provided that the Receiving Party shall be entitled to\nretain one set of all such information in strict confidence for the sole purpose of monitoring its obligations hereunder.\n5. The term of this Agreement will be for three years from the Effective Date. Either party may terminate this Agreement with 30 days’\nwritten notice to the other party. Each party’s obligations of confidentiality and non-use under this Agreement shall survive any termination and\nshall continue for a period of seven years from the termination of this Agreement for any reason, including the natural end of its term.\n2\n6. Nothing contained herein shall be construed as granting or implying any property rights to the Receiving Party, by license or otherwise,\nto any Confidential Information of the Disclosing Party, or to any invention, or any patent, copyright, trademark or other intellectual property\nright that has issued or may issue based on such Confidential Information.\n7. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or\nof such provision on any other occasion.\n8. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes\nand merges all prior discussions between the parties with respect to such matters. Any amendment, modification or waiver of this Agreement or\nany of its terms must be agreed to in a writing signed by both parties.\n9. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, USA, excluding any choice\nof law rules which may direct the application of the laws of another jurisdiction.\n10. This Agreement will be binding upon, inure to the benefit of, and be enforceable by and against the successors and assigns of each\nparty; provided, however, that no assignment of this Agreement by a party in its capacity as a Receiving Party shall relieve such party of its\nobligations of confidentiality and non-use under this Agreement.\n11. This Agreement may be executed by the parties in separate counterparts, each of which will be deemed an original but both of which\ntogether will constitute one and the same Agreement. Any photocopy, facsimile or electronic reproduction of the executed Agreement shall\nconstitute an original.\n(Remainder of page left intentionally blank)\n3\nIf the foregoing is acceptable, please have this Agreement executed and dated by an authorized corporate officer and return one fully executed\ncopy to Jazz Pharmaceuticals.\nApproved and accepted as of the Effective Date\nAGREED TO: AGREED TO:\nJazz Pharmaceuticals plc Celator Pharmaceuticals, Inc.\nName: /s/ Patricia Carr Name: /s/ Scott T. Jackson\nTitle: VP Finance Title: Chief Executive Officer	EX-99.(D)(3) 8 d197291dex99d3.htm EX-99.(D)(3)\nExhibit (d)(3)\nConfidential Disclosure Agreement\nThis mutual Confidential Disclosure Agreement (the "Agreement") is made effective as of December 22, 2014 (the "Effective Date") and\nwill confirm recent discussions between Jazz Pharmaceuticals plc with a principal place of business at Fourth Floor Connaught House, One\nBurlington Road, Dublin 4, Ireland (together with its subsidiaries, "Jazz Pharmaceuticals") and Celator Pharmaceuticals, Inc. with a principal\nplace of business at 200 PrincetonSouth Corporate Center, Suite 180, Ewing, New Jersey 08628 USA ("Celator") concerning a possible business\nrelationship between Celator and Jazz Pharmaceuticals. In order to continue discussions, each party wishes to evaluate certain information and\ndata that the other party considers to be confidential and proprietary, and each party wishes to disclose certain information and data that\nit\nconsiders to be confidential and proprietary provided that such information and data is received in confidence and used by the other party solely\nto evaluate and negotiate such business relationship (the "Purpose"). Each party agrees to disclose to or allow the other to have access to, and to\nreceive from the other party, confidential and proprietary information, only upon the following terms and conditions:\n1.\n"Confidential Information" means all information that is disclosed by one party (the "Disclosing Party") to the other party (the\n"Receiving Party"), either directly or indirectly, including without limitation data, schematics, designs, patent applications, drawings,\nspecifications, technology, samples, models and specimens relating to technologies, products and product concepts discovered or developed\nor\nbeing explored or developed by the Disclosing Party, or the use, manufacture or marketing thereof, or the Disclosing Party's related clinical,\nregulatory, manufacturing or marketing affairs, whether in written, graphic, electronic or oral form, with the exception only of the following:\n(a) information that is now in the public domain or subsequently enters the public domain without fault on the part of the\nReceiving Party;\n(b)\ninformation that, prior to the date of disclosure hereunder, is known by the Receiving Party from its own sources without\nrestriction, as evidenced by the Receiving Party's prior written records;\n(c)\ninformation received by the Receiving Party without restriction from any third party not under any obligation to keep such\ninformation confidential; and\n(d)\ninformation which the Receiving Party proves by clear and convincing evidence was independently developed without the\nuse\nof any of the Disclosing Party's Confidential Information.\nAny combination of features or disclosures will not be deemed to fall within the foregoing exclusions merely because certain individual features\nare published or available to the general public or in the rightful possession of Receiving Party unless the combination as a whole falls within any\nof the above exceptions.\n2. Each party agrees to maintain in confidence all Confidential Information of the other party and, subject to the express provisions of this\nAgreement, not to disclose such Confidential Information to any third party without the express written consent of such other\nparty, to be given or withheld in the absolute discretion of such other party. Each party shall take all necessary and reasonable precautions to\nprevent the disclosure of Confidential Information of the other party to any unauthorized third parties. In this regard, each party agrees that it will\ndisclose Confidential Information of the other party only to those of its agents, employees and consultants (the "Company Recipients") who need\nto know such Confidential Information to accomplish the Purpose and who are bound by obligations of confidentiality at least as stringent as\nthose set forth herein. Each party agrees that upon disclosing Confidential Information of the other party to any Company Recipients, such\nCompany Recipients shall be advised of the confidential nature of the information and shall be instructed to take all necessary and reasonable\nprecautions to prevent the unauthorized disclosure thereof. Each party may disclose Confidential Information of the other party to affiliated\ncompanies controlled by, under the control of, or under common control with such party (the "Affiliates" and together with the Company\nRecipients, the "Representatives"), if such Affiliates are bound by obligations of confidentiality at least as stringent as those set forth herein.\nEach party agrees to enforce the terms and provisions of this Agreement as to any Representative who receives any Confidential Information of\nthe other party hereunder and to assume liability for breach of this Agreement by any or all such Representatives. Notwithstanding the foregoing,\nthe Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by applicable laws or regulations or as\nordered by a court or other regulatory body having competent jurisdiction provided that the Receiving Party uses commercially reasonable efforts\nto limit the disclosure and maintain confidentiality to the extent possible and provides reasonable prior written notice to the Disclosing Party.\n3. Each party agrees that it shall not use Confidential Information of the other party for any purpose other than the Purpose without the\nexpress written consent of such other party, to be given or withheld in the absolute discretion of such other party. Each party acknowledges that\nthe use of Confidential Information of the other party for any reason other than the Purpose or disclosure of Confidential Information of the other\nparty without the express written permission of such other party may cause irreparable harm to such other party and that any material breach or\nthreatened material breach of this Agreement by the Receiving Party will entitle the Disclosing Party to seek injunctive relief and reasonable\nattorneys' fees, in addition to any other legal remedies available to it, in any court of competent jurisdiction.\n4. All Confidential Information disclosed by the Disclosing Party to the Receiving Party pursuant to this Agreement shall be and remain the\nproperty of the Disclosing Party and all written Confidential Information and copies thereof shall he promptly returned or lawfully destroyed\nupon the earlier of the termination of this Agreement or the Disclosing Party's request, provided that the Receiving Party shall be entitled\nto\nretain one set of all such information in strict confidence for the sole purpose of monitoring its obligations hereunder.\n5. The term of this Agreement will be for three years from the Effective Date. Either party may terminate this Agreement with 30 days'\nwritten notice to the other party. Each party's obligations of confidentiality and non-use under this Agreement shall survive any termination and\nshall continue for a period of seven years from the termination of this Agreement for any reason, including the natural end of its term.\n2\n6. Nothing contained herein shall be construed as granting or implying any property rights to the Receiving Party, by license or otherwise,\nto any Confidential Information of the Disclosing Party, or to any invention, or any patent, copyright, trademark or other intellectual property\nright that has issued or may issue based on such Confidential Information.\n7. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or\nof such provision on any other occasion.\n8. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes\nand merges all prior discussions between the parties with respect to such matters. Any amendment, modification or waiver of this Agreement\nor\nany of its terms must be agreed to in a writing signed by both parties.\n9. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, USA, excluding any choice\nof law rules which may direct the application of the laws of another jurisdiction.\n10. This Agreement will be binding upon, inure to the benefit of, and be enforceable by and against the successors and assigns of each\nparty; provided, however, that no assignment of this Agreement by a party in its capacity as a Receiving Party shall relieve such party of its\nobligations of confidentiality and non-use under this Agreement.\n11. This Agreement may be executed by the parties in separate counterparts, each of which will be deemed an original but both of which\ntogether will constitute one and the same Agreement. Any photocopy, facsimile or electronic reproduction of the executed Agreement shall\nconstitute an original.\n(Remainder of page left intentionally blank)\n3\nIf the foregoing is acceptable, please have this Agreement executed and dated by an authorized corporate officer and return one fully executed\ncopy to Jazz Pharmaceuticals.\nApproved and accepted as of the Effective Date\nAGREED TO:\nAGREED TO:\nJazz Pharmaceuticals plc\nCelator Pharmaceuticals, Inc.\nName: /s/ Patricia Carr\nName: /s/ Scott T. Jackson\nTitle: VP Finance\nTitle: Chief Executive Officer\n4	EX-99.(D)(3) 8 d197291dex99d3.htm EX-99.(D)(3)\nExhibit (d)(3)\nConfidential Disclosure Agreement\nThis mutual Confidential Disclosure Agreement (the “Agreement”) is made effective as of December 22, 2014 (the “Effective Date”) and\nwill confirm recent discussions between Jazz Pharmaceuticals plc with a principal place of business at Fourth Floor Connaught House, One\nBurlington Road, Dublin 4, Ireland (together with its subsidiaries, “Jazz Pharmaceuticals”) and Celator Pharmaceuticals, Inc. with a principal\nplace of business at 200 PrincetonSouth Corporate Center, Suite 180, Ewing, New Jersey 08628 USA (“Celator”) concerning a possible business\nrelationship between Celator and Jazz Pharmaceuticals. In order to continue discussions, each party wishes to evaluate certain information and\ndata that the other party considers to be confidential and proprietary, and each party wishes to disclose certain information and data that it\nconsiders to be confidential and proprietary provided that such information and data is received in confidence and used by the other party solely\nto evaluate and negotiate such business relationship (the “Purpose”). Each party agrees to disclose to or allow the other to have access to, and to\nreceive from the other party, confidential and proprietary information, only upon the following terms and conditions:\n1. “Confidential Information” means all information that is disclosed by one party (the “Disclosing Party”) to the other party (the\n“Receiving Party”), either directly or indirectly, including without limitation data, schematics, designs, patent applications, drawings,\nspecifications, technology, samples, models and specimens relating to technologies, products and product concepts discovered or developed or\nbeing explored or developed by the Disclosing Party, or the use, manufacture or marketing thereof, or the Disclosing Party’s related clinical,\nregulatory, manufacturing or marketing affairs, whether in written, graphic, electronic or oral form, with the exception only of the following:\n(a) information that is now in the public domain or subsequently enters the public domain without fault on the part of the\nReceiving Party;\n(b) information that, prior to the date of disclosure hereunder, is known by the Receiving Party from its own sources without\nrestriction, as evidenced by the Receiving Party’s prior written records;\n(c) information received by the Receiving Party without restriction from any third party not under any obligation to keep such\ninformation confidential; and\n(d) information which the Receiving Party proves by clear and convincing evidence was independently developed without the use\nof any of the Disclosing Party’s Confidential Information.\nAny combination of features or disclosures will not be deemed to fall within the foregoing exclusions merely because certain individual features\nare published or available to the general public or in the rightful possession of Receiving Party unless the combination as a whole falls within any\nof the above exceptions.\n2. Each party agrees to maintain in confidence all Confidential Information of the other party and, subject to the express provisions of this\nAgreement, not to disclose such Confidential Information to any third party without the express written consent of such other\nparty, to be given or withheld in the absolute discretion of such other party. Each party shall take all necessary and reasonable precautions to\nprevent the disclosure of Confidential Information of the other party to any unauthorized third parties. In this regard, each party agrees that it will\ndisclose Confidential Information of the other party only to those of its agents, employees and consultants (the “Company Recipients”) who need\nto know such Confidential Information to accomplish the Purpose and who are bound by obligations of confidentiality at least as stringent as\nthose set forth herein. Each party agrees that upon disclosing Confidential Information of the other party to any Company Recipients, such\nCompany Recipients shall be advised of the confidential nature of the information and shall be instructed to take all necessary and reasonable\nprecautions to prevent the unauthorized disclosure thereof. Each party may disclose Confidential Information of the other party to affiliated\ncompanies controlled by, under the control of, or under common control with such party (the “Affiliates” and together with the Company\nRecipients, the “Representatives”), if such Affiliates are bound by obligations of confidentiality at least as stringent as those set forth herein.\nEach party agrees to enforce the terms and provisions of this Agreement as to any Representative who receives any Confidential Information of\nthe other party hereunder and to assume liability for breach of this Agreement by any or all such Representatives. Notwithstanding the foregoing,\nthe Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by applicable laws or regulations or as\nordered by a court or other regulatory body having competent jurisdiction provided that the Receiving Party uses commercially reasonable efforts\nto limit the disclosure and maintain confidentiality to the extent possible and provides reasonable prior written notice to the Disclosing Party.\n3. Each party agrees that it shall not use Confidential Information of the other party for any purpose other than the Purpose without the\nexpress written consent of such other party, to be given or withheld in the absolute discretion of such other party. Each party acknowledges that\nthe use of Confidential Information of the other party for any reason other than the Purpose or disclosure of Confidential Information of the other\nparty without the express written permission of such other party may cause irreparable harm to such other party and that any material breach or\nthreatened material breach of this Agreement by the Receiving Party will entitle the Disclosing Party to seek injunctive relief and reasonable\nattorneys’ fees, in addition to any other legal remedies available to it, in any court of competent jurisdiction.\n4. All Confidential Information disclosed by the Disclosing Party to the Receiving Party pursuant to this Agreement shall be and remain the\nproperty of the Disclosing Party and all written Confidential Information and copies thereof shall he promptly returned or lawfully destroyed\nupon the earlier of the termination of this Agreement or the Disclosing Party’s request, provided that the Receiving Party shall be entitled to\nretain one set of all such information in strict confidence for the sole purpose of monitoring its obligations hereunder.\n5. The term of this Agreement will be for three years from the Effective Date. Either party may terminate this Agreement with 30 days’\nwritten notice to the other party. Each party’s obligations of confidentiality and non-use under this Agreement shall survive any termination and\nshall continue for a period of seven years from the termination of this Agreement for any reason, including the natural end of its term.\n2\n6. Nothing contained herein shall be construed as granting or implying any property rights to the Receiving Party, by license or otherwise,\nto any Confidential Information of the Disclosing Party, or to any invention, or any patent, copyright, trademark or other intellectual property\nright that has issued or may issue based on such Confidential Information.\n7. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or\nof such provision on any other occasion.\n8. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes\nand merges all prior discussions between the parties with respect to such matters. Any amendment, modification or waiver of this Agreement or\nany of its terms must be agreed to in a writing signed by both parties.\n9. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, USA, excluding any choice\nof law rules which may direct the application of the laws of another jurisdiction.\n10. This Agreement will be binding upon, inure to the benefit of, and be enforceable by and against the successors and assigns of each\nparty; provided, however, that no assignment of this Agreement by a party in its capacity as a Receiving Party shall relieve such party of its\nobligations of confidentiality and non-use under this Agreement.\n11. This Agreement may be executed by the parties in separate counterparts, each of which will be deemed an original but both of which\ntogether will constitute one and the same Agreement. Any photocopy, facsimile or electronic reproduction of the executed Agreement shall\nconstitute an original.\n(Remainder of page left intentionally blank)\n3\nIf the foregoing is acceptable, please have this Agreement executed and dated by an authorized corporate officer and return one fully executed\ncopy to Jazz Pharmaceuticals.\nApproved and accepted as of the Effective Date\nAGREED TO:\nAGREED TO:\nJazz Pharmaceuticals plc\nCelator Pharmaceuticals, Inc.\nName: /s/ Patricia Carr\nName: /s/ Scott T. Jackson\nTitle: VP Finance\nTitle: Chief Executive Officer\n4
7734ce5d96e0261092e7ba33f9acb905.pdf	effective_date jurisdiction party term	EX-99.(E)(4) 3 d371520dex99e4.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(4)\nSTRICTLY CONFIDENTIAL\nJanuary 27, 2012\nSycamore Partners Management, L.L.C.\n9 West 57 Street, 31 Floor\nNew York, New York 10019\nAttention: Stefan Kaluzny\nManaging Director\nDear Mr. Kaluzny:\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is dated as of January 27, 2012 by and between\nSycamore Partners Management, L.L .C ., a Delaware limited liability company (the “Receiving Party”) and The Talbots,\nInc., a Delaware corporation (together with its subsidiaries, the “Company”).\n1.\nConfidential Information; Representatives. (a) The Receiving Party is considering a possible\nbusiness combination transaction (whether negotiated directly with the Company’s Board of Directors or otherwise) with\nrespect to the Company (the “Transaction”), and, in order to assist the Receiving Party in evaluating the possible\nTransaction, the Company is prepared to make available to the Receiving Party certain information concerning the\nbusiness, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a\ncondition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals,\npartners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates,\npotential sources of capital and financing, and financial advisors (collectively, “Representatives”) of the Receiving Party,\nthe Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this\nAgreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.\n(b)\nThe term “Confidential Information” shall include, without limitation, any and all information\nconcerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects\nthat is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before\nor after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans,\ncompilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda,\ndocuments or other materials (in whatever form maintained or conveyed, whether\nth\nst\ndocumentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information\nconcerning the Company or its business, operations, strategic initiatives, financing, employees, strategies or prospects\nprepared by or on behalf of the Receiving Party, any of the Receiving Party’s Representatives, the Company or any\nCompany Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives\ninvolving or relating to the Confidential Information.\n2.\nExcluded Information.\nThe Confidential Information shall not include information that the\nReceiving Party can demonstrate (a) is or becomes available to the public other than as a result of acts by the Receiving\nParty or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party’s possession prior to\ndisclosure by the Company, provided that such information, to the Receiving Party’s knowledge, was not subject to\nanother confidentiality agreement with the Company or another party, (c) has been independently developed by the\nReceiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving\nParty by a third party, to the Receiving Party’s knowledge, not bound by any duty or obligation of confidentiality on a\nnon-confidential basis.\n3.\nLimitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall,\nand shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible\nTransaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in\nconfidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that\n(i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by\napplicable law, regulation or legal or regulatory process; provided, that the Receiving Party shall have first complied\nwith the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the\nConfidential Information to the extent that the Company gives its prior written consent, and (iii) any information\ncontained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably\nrequire access to such information for the purpose of evaluating a possible Transaction and who agree to keep such\ninformation in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not\nmake any disclosure of any Confidential Information to any potential sources of equity financing without the Company’s\nprior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the\nReceiving Party or by any of its Representatives.\n(b)\nThe Receiving Party agrees that, for a period of eighteen months from the date of this Agreement,\nthe Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly,\n(i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or\n(ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee\nof the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the\npossible Transaction or about whom the Receiving Party receives Confidential\n2\nInformation; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such\nemployees of the Company shall not be considered a solicitation or unauthorized hiring.\n(c)\nIf the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information\nby it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such\nunauthorized disclosure or use.\n4.\nNon-Disclosure of Existence of Negotiations. Without the prior written consent of the Company\nor except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not\ndisclose to any person that any discussions or negotiations are taking place between the parties concerning a possible\nTransaction, including the content, timing and status of such discussions or negotiations (the “Discussion Information”).\n5.\nNo Representations by the Company. The Company will have the exclusive authority to decide\nwhat Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the\nCompany nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates\n(collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential\nInformation available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update\nany Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has\nmade or is making any representation or warranty, express or implied, as to the accuracy or completeness of any\nConfidential Information, and neither the Company nor any of the Company Representatives will have any liability to\nthe Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any\nConfidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and\nwarranties (if any) that are included in any final definitive written agreement that provides for the consummation of a\nnegotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving\nParty and the Company will have legal effect.\n6.\nStandstill Agreement. In consideration of the Confidential Information being furnished to the\nReceiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of\nthis Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the\nConfidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly\nrequested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not\n(and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their\nrespective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any\nproposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner,\nbeneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company\n(including any derivative securities with economic equivalents of ownership of\n3\nany of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the\nCompany, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are\nused in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence\nany person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in\na “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to\nany voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates,\n(d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board\nof directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any\naction that could require the Company to make any public disclosure, with respect to any of the matters set forth in this\nAgreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution\nand delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or\n(g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any\nother persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request\nthe Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this\nSection 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill\nPeriod shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive\nagreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or\nmore of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its\npreviously announced strategic review process without a definitive agreement to sell the Company, (C) the Company\nmakes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization,\ninsolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such\nproceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent\nthereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the\nStandstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the\napplicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders\nmeeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses\n(c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by\nclause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).\n7.\nReturn of Confidential Information.\nPromptly upon the written request of the Company, the\nReceiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports,\nmemoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or\nreflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of\nConfidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be\nbound by their\n4\nconfidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the\nforegoing, (a) the Receiving Party’s legal department and/or outside counsel may keep one copy of the Confidential\nInformation (in electronic or paper form) and, with respect to the Receiving Party’s Representatives who are accounting\nfirms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable\nlaw or regulation and (b) the Receiving Party and its Representatives may retain Confidential Information to the extent it\nis “backed-up” on its or their (as the case may be) electronic information management and communications systems or\nservers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such\ninformation so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this\nAgreement for a period of eighteen months from the date hereof.\n8.\n2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012\nannual stockholders meeting (with respect to the Company’s fiscal year ended January 28, 2012) will be held no earlier\nthan thirty-one days after the first anniversary of the Company’s 2011 annual stockholders meeting (with respect to the\nCompany’s fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release\nannouncing the date of its 2012 annual meeting on the date such press release is publicly issued.\n9.\nSubpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses\nthe Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion\nInformation under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another\ngovernmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company\nof the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability\nof taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion\nInformation is required, furnish only such portion of the Confidential Information or Discussion Information as the\nReceiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company,\ncooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the\nConfidential Information or Discussion Information or other reliable assurance that confidential treatment will be\naccorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be\ndisclosed.\n10.\nDefinitive Agreement. Unless and until a definitive written agreement between the Receiving\nParty and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor\nthe Company will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of\nthis or any other written or oral expression by either of them or their Representatives except, in the case of this\nAgreement, for the matters specifically agreed to herein.\n5\n11.\nRemedies. Each of the parties hereto acknowledges that in the event of any breach of the terms\nof this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties\nhereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction\n(which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.\n12.\nCommunications. Without the Company’s prior written consent, which may be withheld by the\nCompany in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other\nthan through the Company’s financial and legal advisors or such other persons, as designated by the Company in writing,\nany (a) communication concerning the Confidential Information, (b) requests for meetings with management of the\nCompany in connection with the possible Transaction or other transaction between the parties or (c) communication\nrelating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee\nof the Company.\n13.\nSecurities Laws.\nThe Receiving Party acknowledges that it is aware and that the Receiving\nParty and its Representatives have been advised that the United States securities laws prohibit any person having non-\npublic material information about a company from purchasing or selling securities of that company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such\nperson is likely to purchase or sell such securities.\n14.\nEntire Agreement; Amendments.\nThis Agreement represents the entire understanding and\nagreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived\nonly by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or\nwaiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective\nsuccessors and assigns.\n15.\nNo Waiver.\nNo failure or delay by either party in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further\nexercise thereof or the exercise of any right, power or privilege hereunder.\n16.\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws\nof the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and\nunconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York\nfor purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any\nprocess, summons, notice or document by U.S . registered mail to the address set forth at the end of this Agreement shall\nbe effective service of process for any action, suit or proceeding brought against such party; (c) irrevocably and\nunconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to\nthis Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally\n6\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit\nor proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State\nof New York has been brought in an inconvenient forum.\n17.\nExpenses.\nIn the event of litigation relating to this Agreement, if a court of competent\njurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-\nbreaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation,\nincluding any appeal therefrom.\n18.\nCaptions.\nThe Captions contained in this Agreement are for convenience only and shall not\naffect the construction or interpretation of any provisions of this Agreement.\n19.\nCounterparts. This Agreement may be executed in multiple counterparts, each of which shall\nbe deemed to be an original, but all of which shall constitute one and the same Agreement.\n20.\nSeverability. In the event any term of this Agreement is found by any court to be void or\notherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were\nabsent upon the date of its execution.\n21.\nNotices.\nAll notices and other communications required or permitted hereunder will be in\nwriting and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic\nfacsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the\naddress specified below:\nThe Talbots, Inc.\nAttention: Chief Operating Officer\nOne Talbots Drive\nHingham, MA 02043\nTelephone: 781-741-7600\nFacsimile: 781-741-4927\nwith copies to:\nThe Talbots, Inc.\nAttention: General Counsel\n211 South Ridge St.\nRye Brook, NY 10573\nTelephone: 914-934-8877\nFacsimile: 914-934-9136\nand\n7\nDewey & LeBoeuf LLP\nAttention: Morton A. Pierce, Esq.\nChang-Do Gong, Esq.\n1301 Avenue of the Americas\nNew York, NY 10019\nTelephone: 212-259-8000\nFacsimile: 212-259-6333\n22.\nNon-Private Equity Affiliates.\nNotwithstanding anything to the contrary provided elsewhere\nherein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and\nactivities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the\nprivate equity business and (b) the Confidential Information is not made available to Representatives of the Receiving\nParty and its affiliates who are not involved in the private equity business or who are engaged in investments that are not\nprivate equity investments and such ordinary course business services and activities are otherwise conducted without any\nreference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the\nReceiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including,\nwithout limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of\nthe United States).\n23.\nTermination. Except as otherwise specified herein, the obligations of the parties set forth in this\nAgreement shall terminate and be of no further force and effect eighteen months from the date hereof.\n[Remainder of Page Intentionally Left Blank]\n8\nIN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first\nwritten above.\nTHE TALBOTS, INC.\nBy /s/ Richard T. O’Connell, Jr.\nName: Richard T. O’Connell, Jr.\nTitle: Executive Vice President\nSYCAMORE PARTNERS MANAGEMENT,\nL.L.C .\nBy /s/ Stefan Kaluzny\nName: Stefan Kaluzny\nTitle: Managing Director	EX-99.(E)(4) 3 d371520dex99e4.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(4)\nSTRICTLY CONFIDENTIAL\nJanuary 27, 2012\nSycamore Partners Management, L.L.C.\n9 West 57t Street, 31st Floor\nNew York, New York 10019\nAttention: Stefan Kaluzny\nManaging Director\nDear Mr. Kaluzny:\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is dated as of January 27, 2012 by and between\nSycamore Partners Management, L.L..C., a Delaware limited liability company (the “Receiving Party”) and The Talbots,\nInc., a Delaware corporation (together with its subsidiaries, the “Company”).\n1. Confidential Information; Representatives. (a) The Receiving Party is considering a possible\nbusiness combination transaction (whether negotiated directly with the Company’s Board of Directors or otherwise) with\nrespect to the Company (the “Transaction”), and, in order to assist the Receiving Party in evaluating the possible\nTransaction, the Company is prepared to make available to the Receiving Party certain information concerning the\nbusiness, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a\ncondition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals,\npartners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates,\npotential sources of capital and financing, and financial advisors (collectively, “Representatives”) of the Receiving Party,\nthe Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this\nAgreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.\n(b) The term “Confidential Information” shall include, without limitation, any and all information\nconcerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects\nthat is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before\nor after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans,\ncompilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda,\ndocuments or other materials (in whatever form maintained or conveyed, whether\ndocumentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information\nconcerning the Company or its business, operations, strategic initiatives, financing, employees, strategies or prospects\nprepared by or on behalf of the Receiving Party, any of the Receiving Party’s Representatives, the Company or any\nCompany Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives\ninvolving or relating to the Confidential Information.\n2. Excluded Information. = The Confidential Information shall not include information that the\nReceiving Party can demonstrate (a) is or becomes available to the public other than as a result of acts by the Receiving\nParty or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party’s possession prior to\ndisclosure by the Company, provided that such information, to the Receiving Party’s knowledge, was not subject to\nanother confidentiality agreement with the Company or another party, (c) has been independently developed by the\nReceiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving\nParty by a third party, to the Receiving Party’s knowledge, not bound by any duty or obligation of confidentiality on a\nnon-confidential basis.\n3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall,\nand shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible\nTransaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in\nconfidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that\n(i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by\napplicable law, regulation or legal or regulatory process; provided, that the Receiving Party shall have first complied\nwith the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the\nConfidential Information to the extent that the Company gives its prior written consent, and (iii) any information\ncontained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably\nrequire access to such information for the purpose of evaluating a possible Transaction and who agree to keep such\ninformation in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not\nmake any disclosure of any Confidential Information to any potential sources of equity financing without the Company’s\nprior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the\nReceiving Party or by any of its Representatives.\n \n \n(b) The Receiving Party agrees that, for a period of eighteen months from the date of this Agreement,\nthe Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly,\n(i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or\n(ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee\nof the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the\npossible Transaction or about whom the Receiving Party receives Confidential\n2\nInformation; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such\nemployees of the Company shall not be considered a solicitation or unauthorized hiring.\n(0 If the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information\nby it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such\nunauthorized disclosure or use.\n4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the Company\nor except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not\ndisclose to any person that any discussions or negotiations are taking place between the parties concerning a possible\nTransaction, including the content, timing and status of such discussions or negotiations (the “Discussion Information”).\n5. No Representations by the Company. The Company will have the exclusive authority to decide\nwhat Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the\nCompany nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates\n(collectively, the “Company_Representatives”) will be under any obligation to make any particular Confidential\nInformation available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update\nany Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has\nmade or is making any representation or warranty, express or implied, as to the accuracy or completeness of any\nConfidential Information, and neither the Company nor any of the Company Representatives will have any liability to\nthe Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any\nConfidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and\nwarranties (if any) that are included in any final definitive written agreement that provides for the consummation of a\nnegotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving\nParty and the Company will have legal effect.\n6. Standstill Agreement. In consideration of the Confidential Information being furnished to the\nReceiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of\nthis Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the\nConfidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly\nrequested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not\n(and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their\nrespective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any\nproposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner,\nbeneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company\n(including any derivative securities with economic equivalents of ownership of\n3\nany of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the\nCompany, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are\nused in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence\nany person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in\na “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to\nany voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates,\n(d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board\nof directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any\naction that could require the Company to make any public disclosure, with respect to any of the matters set forth in this\nAgreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution\nand delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or\n(g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any\nother persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request\nthe Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this\nSection 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill\nPeriod shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive\nagreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or\nmore of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its\npreviously announced strategic review process without a definitive agreement to sell the Company, (C) the Company\nmakes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization,\ninsolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such\nproceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent\nthereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the\nStandstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the\napplicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders\nmeeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses\n(), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by\nclause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).\n7. Return of Confidential Information.  Promptly upon the written request of the Company, the\nReceiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports,\nmemoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or\nreflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of\nConfidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be\nbound by their\nconfidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the\nforegoing, (a) the Receiving Party’s legal department and/or outside counsel may keep one copy of the Confidential\nInformation (in electronic or paper form) and, with respect to the Receiving Party’s Representatives who are accounting\nfirms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable\nlaw or regulation and (b) the Receiving Party and its Representatives may retain Confidential Information to the extent it\nis “backed-up” on its or their (as the case may be) electronic information management and communications systems or\nservers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such\ninformation so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this\nAgreement for a period of eighteen months from the date hereof.\n8. 2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012\nannual stockholders meeting (with respect to the Company’s fiscal year ended January 28, 2012) will be held no earlier\nthan thirty-one days after the first anniversary of the Company’s 2011 annual stockholders meeting (with respect to the\nCompany’s fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release\nannouncing the date of its 2012 annual meeting on the date such press release is publicly issued.\n9. Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses\nthe Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion\nInformation under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another\ngovernmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company\nof the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability\nof taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion\nInformation is required, furnish only such portion of the Confidential Information or Discussion Information as the\nReceiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company,\ncooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the\nConfidential Information or Discussion Information or other reliable assurance that confidential treatment will be\naccorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be\ndisclosed.\n10. Definitive Agreement.  Unless and until a definitive written agreement between the Receiving\nParty and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor\nthe Company will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of\nthis or any other written or oral expression by either of them or their Representatives except, in the case of this\nAgreement, for the matters specifically agreed to herein.\n11. Remedies. Each of the parties hereto acknowledges that in the event of any breach of the terms\nof this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties\nhereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction\n(which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.\n12. Communications. Without the Company’s prior written consent, which may be withheld by the\nCompany in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other\nthan through the Company’s financial and legal advisors or such other persons, as designated by the Company in writing,\nany (a) communication concerning the Confidential Information, (b) requests for meetings with management of the\nCompany in connection with the possible Transaction or other transaction between the parties or (c) communication\nrelating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee\nof the Company.\n13. Securities Laws.  The Receiving Party acknowledges that it is aware and that the Receiving\nParty and its Representatives have been advised that the United States securities laws prohibit any person having non-\npublic material information about a company from purchasing or selling securities of that company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such\nperson is likely to purchase or sell such securities.\n14. Entire Agreement; Amendments.  This Agreement represents the entire understanding and\nagreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived\nonly by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or\nwaiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective\nsuccessors and assigns.\n15. No Waiver.  No failure or delay by either party in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further\nexercise thereof or the exercise of any right, power or privilege hereunder.\n16. Governing Law. This Agreement shall be governed and construed in accordance with the laws\nof the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and\nunconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York\nfor purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any\nprocess, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall\nbe effective service of process for any action, suit or proceeding brought against such party; (c) irrevocably and\nunconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to\nthis Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally\n6\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit\nor proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State\nof New York has been brought in an inconvenient forum.\n17. Expenses. In the event of litigation relating to this Agreement, if a court of competent\njurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-\nbreaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation,\nincluding any appeal therefrom.\n18. Captions.  The Captions contained in this Agreement are for convenience only and shall not\naffect the construction or interpretation of any provisions of this Agreement.\n19. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall\nbe deemed to be an original, but all of which shall constitute one and the same Agreement.\n20. Severability.  In the event any term of this Agreement is found by any court to be void or\notherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were\nabsent upon the date of its execution.\n21. Notices.  All notices and other communications required or permitted hereunder will be in\nwriting and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic\nfacsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the\naddress specified below:\nThe Talbots, Inc.\nAttention: Chief Operating Officer\nOne Talbots Drive\nHingham, MA 02043\nTelephone: 781-741-7600\nFacsimile: 781-741-4927\nwith copies to:\nThe Talbots, Inc.\nAttention: General Counsel\n211 South Ridge St.\nRye Brook, NY 10573\nTelephone: 914-934-8877\nFacsimile: 914-934-9136\nand\nDewey & LeBoeuf LLP\nAttention: Morton A. Pierce, Esq.\nChang-Do Gong, Esq.\n1301 Avenue of the Americas\nNew York, NY 10019\nTelephone: 212-259-8000\nFacsimile: 212-259-6333\n22. Non-Private Equity Affiliates. = Notwithstanding anything to the contrary provided elsewhere\nherein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and\nactivities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the\nprivate equity business and (b) the Confidential Information is not made available to Representatives of the Receiving\nParty and its affiliates who are not involved in the private equity business or who are engaged in investments that are not\nprivate equity investments and such ordinary course business services and activities are otherwise conducted without any\nreference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the\nReceiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including,\nwithout limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of\nthe United States).\n23. Termination. Except as otherwise specified herein, the obligations of the parties set forth in this\nAgreement shall terminate and be of no further force and effect eighteen months from the date hereof.\n[Remainder of Page Intentionally Left Blank]\nIN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first\nwritten above.\nTHE TALBOTS, INC.\nBy_/s/ Richard T. O’Connell, Jr.\nName: Richard T. O’Connell, Jr.\nTitle: Executive Vice President\nSYCAMORE PARTNERS MANAGEMENT,\nL.L.C.\nBy _/s/ Stefan Kaluzny\nName: Stefan Kaluzny\nTitle: Managing Director	EX-99.(E)(4) 3 d371520dex99e4.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(4)\nSTRICTLY CONFIDENTIAL\nJanuary 27, 2012\nSycamore Partners Management, L.L.C.\n9 West 57th Street, 31st Floor\nNew York, New York 10019\nAttention:\nStefan Kaluzny\nManaging Director\nDear Mr. Kaluzny:\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this "Agreement") is dated as of January 27, 2012 by and between\nSycamore Partners Management, L.L.C., a Delaware limited liability company (the "Receiving Party.") and The Talbots,\nInc., a Delaware corporation (together with its subsidiaries, the "Company.").\n1.\nConfidential Information; Representatives. (a) The Receiving Party is considering a possible\nbusiness combination transaction (whether negotiated directly with the Company's Board of Directors or otherwise) with\nrespect to the Company (the "Transaction"), and, in order to assist the Receiving Party in evaluating the possible\nTransaction, the Company is prepared to make available to the Receiving Party certain information concerning the\nbusiness, operations, strategy and prospects of the Company (all such information, the "Confidential Information"). As\na\ncondition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals,\npartners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates,\npotential sources of capita and financing, and financial advisors (collectively, "Representatives") of the Receiving Party,\nthe Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this\nAgreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.\n(b)\nThe term "Confidential Information" shall include, without limitation, any and all information\nconcerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects\nthat is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before\nor after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans,\ncompilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda,\ndocuments or other materials (in whatever form maintained or conveyed, whether\ndocumentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information\nconcerning the Company or its business, operations, strategic initiatives, financing, employees, strategies or prospects\nprepared by or on behalf of the Receiving Party, any of the Receiving Party's Representatives, the Company or any\nCompany Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives\ninvolving or relating to the Confidential Information.\n2.\nExcluded Information. The Confidential Information shall not include information that the\nReceiving\nParty\ncan\ndemonstrate\n(a)\nis\nor\nbecomes\navailable\nto\nthe\npublic\nother\nthan\nas\na\nresult\nof\nacts\nby\nthe\nReceiving\nParty or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party's possession prior\nto\ndisclosure by the Company, provided that such information, to the Receiving Party's knowledge, was not subject to\nanother confidentiality agreement with the Company or another party, (c) has been independently developed by the\nReceiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving\nParty by a third party, to the Receiving Party's knowledge, not bound by any duty or obligation of confidentiality on\na\nnon-confidential basis.\n3.\nLimitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall,\nand shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible\nTransaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in\nconfidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that\n(i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by\napplicable\nlaw,\nregulation\nor\nlegal\nor\nregulatory\nprocess;\nprovided,\nthat\nthe\nReceiving\nParty\nshall\nhave\nfirst\ncomplied\nwith the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the\nConfidential Information to the extent that the Company gives its prior written consent, and (iii) any information\ncontained in the Confidential Information may be disclosed to the Receiving Party's Representatives who reasonably\nrequire access to such information for the purpose of evaluating a possible Transaction and who agree to keep such\ninformation in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not\nmake any disclosure of any Confidential Information to any potential sources of equity financing without the Company's\nprior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the\nReceiving Party or by any of its Representatives.\n(b)\nThe Receiving Party agrees that, for a period of eighteen months from the date of this Agreement,\nthe Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly,\n(i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or\n(ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee\nof the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the\npossible Transaction or about whom the Receiving Party receives Confidential\n2\nInformation; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such\nemployees of the Company shall not be considered a solicitation or unauthorized hiring.\n(c)\nIf the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information\nby it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such\nunauthorized disclosure or use.\n4.\nNon-Disclosure of Existence of Negotiations. Without the prior written consent of the Company\nor except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not\ndisclose to any person that any discussions or negotiations are taking place between the parties concerning a possible\nTransaction, including the content, timing and status of such discussions or negotiations (the "Discussion Information").\n5.\nNo Representations by the Company. The Company will have the exclusive authority to\ndecide\nwhat Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the\nCompany nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates\n(collectively, the "Company Representatives") will be under any obligation to make any particular Confidential\nInformation available to the Receiving Party or any of the Receiving Party's Representatives or to supplement or update\nany Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has\nmade\nor\nis\nmaking\nany\nrepresentation\nor\nwarranty,\nexpress\nor\nimplied,\nas\nto\nthe\naccuracy\nor\ncompleteness\nof\nany\nConfidential Information, and neither the Company nor any of the Company Representatives will have any liability to\nthe Receiving Party or to any of the Receiving Party's Representatives relating to or resulting from the use of any\nConfidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and\nwarranties (if any) that are included in any final definitive written agreement that provides for the consummation of a\nnegotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving\nParty and the Company will have legal effect.\n6. Standstill Agreement. In consideration of the Confidential Information being furnished to the\nReceiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of\nthis Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the\nConfidential Information for the purpose of evaluating a possible Transaction, the "Standstill Period"), unless expressly\nrequested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not\n(and\nshall\ncause\nits\naffiliates\nnot\nto\nand\nshall\ncause\nits\nand\ntheir\nrespective\nRepresentatives\nacting\nat\nits\nand\ntheir\nrespective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any\nproposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner,\nbeneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company\n(including any derivative securities with economic equivalents of ownership of\n3\nany of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of\nthe\nCompany, (b) make, or in any way participate in, directly or indirectly, any "'solicitation" of "proxies" (as such terms are\nused in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence\nany person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate\nin\na\n"group"\n(within\nthe\nmeaning\nof\nSection\n13(d)(3)\nof\nthe\nSecurities\nExchange\nAct\nof\n1934,\nas\namended)\nwith\nrespect\nto\nany voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates,\n(d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board\nof directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any\naction that could require the Company to make any public disclosure, with respect to any of the matters set forth in this\nAgreement, other than the required amendment to the Receiving Party's Schedule 13D filing as a result of the execution\nand delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing\nor\n(g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any\nother persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request\nthe Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this\nSection 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill\nPeriod shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive\nagreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or\nmore\nof\nthe\nCompany's\noutstanding\nequity\nsecurities,\n(B)\nthe\nCompany\npublicly\nannounces\nthe\nconclusion\nof\nits\npreviously announced strategic review process without a definitive agreement to sell the Company, (C) the Company\nmakes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization,\ninsolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such\nproceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent\nthereto\nor\nacquiescence\ntherein,\nor\n(2)\nsuch\npetition\napplication\nor\nproceeding\nis\nnot\ndismissed\nwithin\n30\ndays\nand\n(ii)\nthe\nStandstill applicable Period time period solely for with stockholders respect to clause to nominate (b) of this directors Section for 6 election shall terminate at the Company's ten days prior 2012 to the annual expiration stockholders of the\nmeeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses\n(c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by\nclause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).\n7.\nReturn of Confidential Information. Promptly upon the written request of the Company, the\nReceiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports,\nmemoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or\nreflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of\nConfidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be\nbound by their\n4\nconfidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the\nforegoing, (a) the Receiving Party's legal department and/or outside counsel may keep one copy of the Confidential\nInformation (in electronic or paper form) and, with respect to the Receiving Party's Representatives who are accounting\nfirms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable\nlaw\nor\nregulation\nand\n(b)\nthe\nReceiving\nParty\nand\nits\nRepresentatives\nmay\nretain\nConfidential\nInformation\nto\nthe\nextent\nit\nis "backed-up" on its or their (as the case may be) electronic information management and communications systems or\nservers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such\ninformation so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this\nAgreement for a period of eighteen months from the date hereof.\n8.\n2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012\nannual stockholders meeting (with respect to the Company's fiscal year ended January 28, 2012) will be held no earlier\nthan thirty-one days after the first anniversary of the Company's 2011 annual stockholders meeting (with respect\nto\nthe\nCompany's fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release\nannouncing the date of its 2012 annual meeting on the date such press release is publicly issued.\n9.\nSubpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses\nthe Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion\nInformation under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another\ngovernmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company\nof\nthe\nexistence,\nterms\nand\ncircumstances\nsurrounding\nsuch\na\nrequest,\n(b)\nconsult\nwith\nthe\nCompany\non\nthe\nadvisability\nof taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion\nInformation is required, furnish only such portion of the Confidential Information or Discussion Information as the\nReceiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company,\ncooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the\nConfidential Information or Discussion Information or other reliable assurance that confidential treatment will be\naccorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be\ndisclosed.\n10.\nDefinitive Agreement. Unless and until a definitive written agreement between the Receiving\nParty and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor\nthe Company will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of\nthis or any other written or oral expression by either of them or their Representatives except, in the case of this\nAgreement, for the matters specifically agreed to herein.\n5\n11.\nRemedies. Each of the parties hereto acknowledges that in the event of any breach of the terms\nof this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties\nhereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction\n(which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.\n12. Communications. Without the Company's prior written consent, which may be withheld by the\nCompany in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other\nthan\nthrough\nthe\nCompany's\nfinancial\nand\nlegal\nadvisors\nor\nsuch\nother\npersons,\nas\ndesignated\nby\nthe\nCompany\nin\nwriting,\nany (a) communication concerning the Confidential Information, (b) requests for meetings with management of the\nCompany in connection with the possible Transaction or other transaction between the parties or (c) communication\nrelating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee\nof the Company.\n13.\nSecurities Laws. The Receiving Party acknowledges that it is aware and that the Receiving\nParty and its Representatives have been advised that the United States securities laws prohibit any person having non-\npublic\nmaterial\ninformation\nabout\na\ncompany\nfrom\npurchasing\nor\nselling\nsecurities\nof\nthat\ncompany\nor\nfrom\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such\nperson is likely to purchase or sell such securities.\n14.\nEntire Agreement; Amendments. This Agreement represents the entire understanding and\nagreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived\nonly by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying\nor\nwaiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective\nsuccessors and assigns.\n15.\nNo Waiver. No failure or delay by either party in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further\nexercise thereof or the exercise of any right, power or privilege hereunder.\n16.\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws\nof the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and\nunconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York\nfor purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any\nprocess, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall\nbe\neffective\nservice\nof\nprocess\nfor\nany\naction,\nsuit\nor\nproceeding\nbrought\nagainst\nsuch\nparty;\n(c)\nirrevocably\nand\nunconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to\nthis Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally\n6\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit\nor proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State\nof New York has been brought in an inconvenient forum.\n17.\nExpenses. In the event of litigation relating to this Agreement, if a court of competent\njurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-\nbreaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation,\nincluding any appeal therefrom.\n18.\nCaptions. The Captions contained in this Agreement are for convenience only and shall not\naffect the construction or interpretation of any provisions of this Agreement.\n19.\nCounterparts. This Agreement may be executed in multiple counterparts, each of which shall\nbe deemed to be an original, but all of which shall constitute one and the same Agreement.\n20.\nSeverability. In the event any term of this Agreement is found by any court to be void or\notherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were\nabsent upon the date of its execution.\n21.\nNotices. All notices and other communications required or permitted hereunder will be in\nwriting and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic\nfacsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the\naddress specified below:\nThe Talbots, Inc.\nAttention: Chief Operating Officer\nOne Talbots Drive\nHingham, MA 02043\nTelephone: 781-741-7600\nFacsimile: 781-741-4927\nwith copies to:\nThe Talbots, Inc.\nAttention: General Counsel\n211 South Ridge St.\nRye Brook, NY 10573\nTelephone: 914-934-8877\nFacsimile: 914-934-9136\nand\n7\nDewey & LeBoeuf LLP\nAttention: Morton A. Pierce, Esq.\nChang-Do Gong, Esq.\n1301 Avenue of the Americas\nNew York, NY 10019\nTelephone: 212-259-8000\nFacsimile: 212-259-6333\n22.\nNon-Private Equity Affiliates. Notwithstanding anything to the contrary provided elsewhere\nherein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and\nactivities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the\nprivate equity business and (b) the Confidential Information is not made available to Representatives of the Receiving\nParty and its affiliates who are not involved in the private equity business or who are engaged in investments\nthat\nare\nnot\nprivate equity investments and such ordinary course business services and activities are otherwise conducted without any\nreference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the\nReceiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including,\nwithout limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of\nthe United States).\n23.\nTermination. Except as otherwise specified herein, the obligations of the parties set forth in this\nAgreement shall terminate and be of no further force and effect eighteen months from the date hereof.\n[Remainder of Page Intentionally Left Blank]\n8\nIN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first\nwritten above.\nTHE TALBOTS, INC.\nBy/s/ /Richard T. O'Connell, Jr.\nName: Richard T. O'Connell, Jr.\nTitle: Executive Vice President\nSYCAMORE PARTNERS MANAGEMENT,\nL.L.C.\nBy/ /s/ Stefan Kaluzny\nName: Stefan Kaluzny\nTitle: Managing Director	EX-99.(E)(4) 3 d371520dex99e4.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(4)\nSTRICTLY CONFIDENTIAL\nJanuary 27, 2012\nSycamore Partners Management, L.L.C.\n9 West 57 Street, 31 Floor\nNew York, New York 10019\nAttention: Stefan Kaluzny\nManaging Director\nDear Mr. Kaluzny:\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is dated as of January 27, 2012 by and between\nSycamore Partners Management, L.L .C ., a Delaware limited liability company (the “Receiving Party”) and The Talbots,\nInc., a Delaware corporation (together with its subsidiaries, the “Company”).\n1.\nConfidential Information; Representatives. (a) The Receiving Party is considering a possible\nbusiness combination transaction (whether negotiated directly with the Company’s Board of Directors or otherwise) with\nrespect to the Company (the “Transaction”), and, in order to assist the Receiving Party in evaluating the possible\nTransaction, the Company is prepared to make available to the Receiving Party certain information concerning the\nbusiness, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a\ncondition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals,\npartners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates,\npotential sources of capital and financing, and financial advisors (collectively, “Representatives”) of the Receiving Party,\nthe Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this\nAgreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.\n(b)\nThe term “Confidential Information” shall include, without limitation, any and all information\nconcerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects\nthat is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before\nor after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans,\ncompilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda,\ndocuments or other materials (in whatever form maintained or conveyed, whether\nth\nst\ndocumentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information\nconcerning the Company or its business, operations, strategic initiatives, financing, employees, strategies or prospects\nprepared by or on behalf of the Receiving Party, any of the Receiving Party’s Representatives, the Company or any\nCompany Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives\ninvolving or relating to the Confidential Information.\n2.\nExcluded Information.\nThe Confidential Information shall not include information that the\nReceiving Party can demonstrate (a) is or becomes available to the public other than as a result of acts by the Receiving\nParty or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party’s possession prior to\ndisclosure by the Company, provided that such information, to the Receiving Party’s knowledge, was not subject to\nanother confidentiality agreement with the Company or another party, (c) has been independently developed by the\nReceiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving\nParty by a third party, to the Receiving Party’s knowledge, not bound by any duty or obligation of confidentiality on a\nnon-confidential basis.\n3.\nLimitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall,\nand shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible\nTransaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in\nconfidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that\n(i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by\napplicable law, regulation or legal or regulatory process; provided, that the Receiving Party shall have first complied\nwith the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the\nConfidential Information to the extent that the Company gives its prior written consent, and (iii) any information\ncontained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably\nrequire access to such information for the purpose of evaluating a possible Transaction and who agree to keep such\ninformation in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not\nmake any disclosure of any Confidential Information to any potential sources of equity financing without the Company’s\nprior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the\nReceiving Party or by any of its Representatives.\n(b)\nThe Receiving Party agrees that, for a period of eighteen months from the date of this Agreement,\nthe Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly,\n(i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or\n(ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee\nof the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the\npossible Transaction or about whom the Receiving Party receives Confidential\n2\nInformation; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such\nemployees of the Company shall not be considered a solicitation or unauthorized hiring.\n(c)\nIf the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information\nby it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such\nunauthorized disclosure or use.\n4.\nNon-Disclosure of Existence of Negotiations. Without the prior written consent of the Company\nor except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not\ndisclose to any person that any discussions or negotiations are taking place between the parties concerning a possible\nTransaction, including the content, timing and status of such discussions or negotiations (the “Discussion Information”).\n5.\nNo Representations by the Company. The Company will have the exclusive authority to decide\nwhat Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the\nCompany nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates\n(collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential\nInformation available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update\nany Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has\nmade or is making any representation or warranty, express or implied, as to the accuracy or completeness of any\nConfidential Information, and neither the Company nor any of the Company Representatives will have any liability to\nthe Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any\nConfidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and\nwarranties (if any) that are included in any final definitive written agreement that provides for the consummation of a\nnegotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving\nParty and the Company will have legal effect.\n6.\nStandstill Agreement. In consideration of the Confidential Information being furnished to the\nReceiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of\nthis Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the\nConfidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly\nrequested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not\n(and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their\nrespective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any\nproposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner,\nbeneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company\n(including any derivative securities with economic equivalents of ownership of\n3\nany of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the\nCompany, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are\nused in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence\nany person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in\na “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to\nany voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates,\n(d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board\nof directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any\naction that could require the Company to make any public disclosure, with respect to any of the matters set forth in this\nAgreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution\nand delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or\n(g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any\nother persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request\nthe Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this\nSection 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill\nPeriod shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive\nagreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or\nmore of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its\npreviously announced strategic review process without a definitive agreement to sell the Company, (C) the Company\nmakes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization,\ninsolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such\nproceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent\nthereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the\nStandstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the\napplicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders\nmeeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses\n(c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by\nclause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).\n7.\nReturn of Confidential Information.\nPromptly upon the written request of the Company, the\nReceiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports,\nmemoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or\nreflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of\nConfidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be\nbound by their\n4\nconfidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the\nforegoing, (a) the Receiving Party’s legal department and/or outside counsel may keep one copy of the Confidential\nInformation (in electronic or paper form) and, with respect to the Receiving Party’s Representatives who are accounting\nfirms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable\nlaw or regulation and (b) the Receiving Party and its Representatives may retain Confidential Information to the extent it\nis “backed-up” on its or their (as the case may be) electronic information management and communications systems or\nservers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such\ninformation so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this\nAgreement for a period of eighteen months from the date hereof.\n8.\n2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012\nannual stockholders meeting (with respect to the Company’s fiscal year ended January 28, 2012) will be held no earlier\nthan thirty-one days after the first anniversary of the Company’s 2011 annual stockholders meeting (with respect to the\nCompany’s fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release\nannouncing the date of its 2012 annual meeting on the date such press release is publicly issued.\n9.\nSubpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses\nthe Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion\nInformation under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another\ngovernmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company\nof the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability\nof taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion\nInformation is required, furnish only such portion of the Confidential Information or Discussion Information as the\nReceiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company,\ncooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the\nConfidential Information or Discussion Information or other reliable assurance that confidential treatment will be\naccorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be\ndisclosed.\n10.\nDefinitive Agreement. Unless and until a definitive written agreement between the Receiving\nParty and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor\nthe Company will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of\nthis or any other written or oral expression by either of them or their Representatives except, in the case of this\nAgreement, for the matters specifically agreed to herein.\n5\n11.\nRemedies. Each of the parties hereto acknowledges that in the event of any breach of the terms\nof this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties\nhereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction\n(which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.\n12.\nCommunications. Without the Company’s prior written consent, which may be withheld by the\nCompany in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other\nthan through the Company’s financial and legal advisors or such other persons, as designated by the Company in writing,\nany (a) communication concerning the Confidential Information, (b) requests for meetings with management of the\nCompany in connection with the possible Transaction or other transaction between the parties or (c) communication\nrelating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee\nof the Company.\n13.\nSecurities Laws.\nThe Receiving Party acknowledges that it is aware and that the Receiving\nParty and its Representatives have been advised that the United States securities laws prohibit any person having non-\npublic material information about a company from purchasing or selling securities of that company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such\nperson is likely to purchase or sell such securities.\n14.\nEntire Agreement; Amendments.\nThis Agreement represents the entire understanding and\nagreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived\nonly by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or\nwaiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective\nsuccessors and assigns.\n15.\nNo Waiver.\nNo failure or delay by either party in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further\nexercise thereof or the exercise of any right, power or privilege hereunder.\n16.\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws\nof the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and\nunconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York\nfor purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any\nprocess, summons, notice or document by U.S . registered mail to the address set forth at the end of this Agreement shall\nbe effective service of process for any action, suit or proceeding brought against such party; (c) irrevocably and\nunconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to\nthis Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally\n6\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit\nor proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State\nof New York has been brought in an inconvenient forum.\n17.\nExpenses.\nIn the event of litigation relating to this Agreement, if a court of competent\njurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-\nbreaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation,\nincluding any appeal therefrom.\n18.\nCaptions.\nThe Captions contained in this Agreement are for convenience only and shall not\naffect the construction or interpretation of any provisions of this Agreement.\n19.\nCounterparts. This Agreement may be executed in multiple counterparts, each of which shall\nbe deemed to be an original, but all of which shall constitute one and the same Agreement.\n20.\nSeverability. In the event any term of this Agreement is found by any court to be void or\notherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were\nabsent upon the date of its execution.\n21.\nNotices.\nAll notices and other communications required or permitted hereunder will be in\nwriting and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic\nfacsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the\naddress specified below:\nThe Talbots, Inc.\nAttention: Chief Operating Officer\nOne Talbots Drive\nHingham, MA 02043\nTelephone: 781-741-7600\nFacsimile: 781-741-4927\nwith copies to:\nThe Talbots, Inc.\nAttention: General Counsel\n211 South Ridge St.\nRye Brook, NY 10573\nTelephone: 914-934-8877\nFacsimile: 914-934-9136\nand\n7\nDewey & LeBoeuf LLP\nAttention: Morton A. Pierce, Esq.\nChang-Do Gong, Esq.\n1301 Avenue of the Americas\nNew York, NY 10019\nTelephone: 212-259-8000\nFacsimile: 212-259-6333\n22.\nNon-Private Equity Affiliates.\nNotwithstanding anything to the contrary provided elsewhere\nherein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and\nactivities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the\nprivate equity business and (b) the Confidential Information is not made available to Representatives of the Receiving\nParty and its affiliates who are not involved in the private equity business or who are engaged in investments that are not\nprivate equity investments and such ordinary course business services and activities are otherwise conducted without any\nreference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the\nReceiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including,\nwithout limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of\nthe United States).\n23.\nTermination. Except as otherwise specified herein, the obligations of the parties set forth in this\nAgreement shall terminate and be of no further force and effect eighteen months from the date hereof.\n[Remainder of Page Intentionally Left Blank]\n8\nIN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first\nwritten above.\nTHE TALBOTS, INC.\nBy /s/ Richard T. O’Connell, Jr.\nName: Richard T. O’Connell, Jr.\nTitle: Executive Vice President\nSYCAMORE PARTNERS MANAGEMENT,\nL.L.C .\nBy /s/ Stefan Kaluzny\nName: Stefan Kaluzny\nTitle: Managing Director
793475447d7392c0241fcc48bdbc4f81.pdf	effective_date jurisdiction party term	NON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into this 2nd day of February, 2006 by and between Sun Energy Solar, Inc.,\na Delaware company having an address at 6408 Parkland Drive, Suite 104, Sarasota, Florida 34243, United States of America (“Company”), and\nRobert Fugerer, an individual residing in the state of Florida, and having an address at 4819 Sky Blue Drive, Lutz, FL 33558(“Recipient”).\nRECITALS\nA. Company and Recipient have initiated or intend to initiate discussions concerning the possibility of entering into a mutually advantageous\nbusiness relationship whereby Recipient shall perform certain services on behalf of and for the benefit of Company (the “Limited Purpose”).\nB. To facilitate the disclosure of certain Confidential Information (as defined below) by Company to Recipient, the parties desire to enter into\nthis Agreement.\nAGREEMENT\nNow therefore, in consideration of the foregoing recitals, which are hereby incorporated into this Agreement by reference, and the mutual\ncovenants and agreements contained herein, and other good and valuable consideration, the adequacy and receipt of which is hereby acknowledged,\nthe parties agree as follows:\n1. Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following meanings:\n(a) “Confidential Information” mean any information, whether written, oral, magnetic, photographic, optical, or other form, tangible or\nintangible, which has been, or after the date hereof will be, furnished or disclosed by Company, or its employees, consultants, representatives\nor agents, or which Recipient may have access to in connection with the Limited Purpose, which has been designated as being confidential, or\nwhich under the circumstances of disclosure reasonably ought to be treated as confidential, including but not limited to any information\npertaining to or regarding the business, financial condition, pricing, sales, strategies, plans, customers, suppliers, properties and operations of\nCompany (including such information visually available to Recipient at Company’s premises or Company presentations), and including\nwithout limitation all technical information of any nature whatsoever and all business plans, inventions, trade secrets, know-how,\nmethodologies, concepts, techniques, discoveries, computer programs (including functionality and source code), processes, drawings, designs,\nresearch, plans or specifications relating thereto.\n(b) “Related Party” or “Related Parties” shall mean the directors, officers, employees, legal, tax and other professional advisors or\nconsultants of Recipient, to the extent such entities or persons receive Confidential Information.\n2. Non-Disclosure and Restricted Use of Confidential Information.\n(a) Recipient shall keep in strictest confidence and trust all Confidential Information and, except upon the express prior written consent\nof Company, Recipient shall (i) not disclose any Confidential Information to any other entity or person, and (ii) use the Confidential\nInformation solely as necessary to implement the Limited Purpose and not for Recipient’s own benefit or for the benefit of any other entity or\nperson. Recipient shall take all reasonable safeguards to prevent the disclosure or misuse of the Confidential Information, including without\nlimitation such measures as the Recipient takes to safeguard its own confidential information, and shall not photocopy, transcribe or otherwise\nreproduce or modify any of the Confidential Information except as necessary to implement the Limited Purpose or otherwise upon the express\nwritten consent of the Company.\n10\n(b) Recipient may disclose the Confidential Information to Related Parties on a “need to know” basis only. Recipient shall inform all\nRelated Parties who have access to the Confidential Information that such Confidential Information is confidential and proprietary to Company\nand shall require each such Related Party to agree to restrictions and obligations at least as strict as those set forth herein prior to disclosure of\nany Confidential Information. Recipient shall diligently enforce any and all confidentiality agreements with Related Parties and shall be\nresponsible and liable for any breach of the confidentiality obligations and restrictions on use set forth herein by any Related Party.\n(c) The obligations of Recipient stated in the preceding paragraphs of this Section 2 shall not apply to information that (i) is or becomes\ngenerally known or available to the public through no wrongful act of the Recipient; (ii) was in the Recipient's possession at the time of\ndisclosure or receipt, as evidenced and verified by prior tangible evidence, and was not acquired under an obligation of confidence;\n(iii) Recipient demonstrates was rightfully received by it from a third party after the time it was disclosed or obtained hereunder, provided that\nsuch third party was not under an obligation of confidence with the Company at the time of the third party’s disclosure to Recipient; (iv) is\nindependently developed by Recipient without use of or reference to the Confidential Information and without breach of this Agreement, as\nevidenced and verified by prior tangible evidence; or (v) is required to be disclosed in a judicial or administrative proceeding, or as otherwise\nrequired to be disclosed by law, in any such case after all reasonable legal remedies for maintaining such information in confidence have been\nexhausted, including, but not limited to, giving Company as much advance notice of the possibility of such disclosure as practical so Company\nmay attempt to stop such disclosure or obtain a protective order concerning such disclosure. Recipient shall provide Company with written\nnotice no less than five (5) days prior to the disclosure or use of any information of Company pursuant to this Section 2(c), subsections\n(i) through (v).\n(d) Recipient shall (i) notify Company immediately of any unauthorized possession, use or knowledge of the Confidential Information,\n(ii) promptly furnish Company full details of such possession, use or knowledge, and (iii) cooperate with Company against third parties as may\nbe deemed necessary by Company to protect its proprietary rights in the Confidential Information.\n3. Term of Agreement. This Agreement shall be effective as of the date of first disclosure of Confidential Information and may be terminated,\nwithout cause, with respect to future disclosures upon thirty (30) days prior written notice to the other party; provided however, that all rights and\nobligations accrued prior to such termination shall survive the termination of this Agreement. Notwithstanding anything herein to the contrary, the\nnondisclosure obligations and restrictions on use with respect to any Confidential Information shall continue and bind Recipient for a period of five\n(5) years after the date of the last disclosure of Confidential Information hereunder, except that the nondisclosure obligations and restrictions on use\nwith respect to any Confidential Information that constitutes a trade secret shall continue in effect for so long as the Confidential Information\nremains a trade secret under applicable law. Any termination or expiration of this Agreement shall be without prejudice to the rights of Company\nagainst Recipient in respect of any claim or breach of any of the provisions of this Agreement.\n4. Return of Confidential Information. Recipient shall return to Company, or at Company’s request, destroy, and shall cause its Related Parties\nto return or destroy, the Confidential Information and all copies, transcriptions or other reproductions of, and any notes relating to, the Confidential\nInformation, including without limitation, any memoranda, photocopies, computer files and libraries, computer-generated data or other similar\nrepositories or archives, upon (i) the accomplishment of the purpose for which the Confidential Information was provided, or (ii) receipt of a written\nnotice from Company requesting return or destruction of the Confidential Information, and upon request, shall provide to Company written\ncertification signed by an officer of Recipient that it has complied with the foregoing.\n5. Ownership.\n(a) All Confidential Information is and shall remain the property of Company. By disclosing Confidential Information to Recipient,\nCompany does not grant any express or implied right to Recipient to or under any patents, copyrights, trademarks, or trade secret information\nexcept as\n11\nrequired to implement the Limited Purpose. Company reserves without prejudice the ability to protect its rights under any such patents,\ncopyrights, trademarks, or trade secrets. Recipient shall not remove any proprietary, copyright, trade secret or other legend from any form of\nthe Confidential Information. Recipient shall, at the reasonable written request of Company and at Company’s expense, add to the Confidential\nInformation any proprietary, copyright, trade secret or other legend or modify the same, which Company deems necessary to protect its\nintellectual property rights. Without limiting the foregoing, Company shall retain all right, title, and interest in and to all forms of Confidential\nInformation delivered or disclosed hereunder, including, without limitation, any patents, copyrights, trademarks, service marks, trade dress,\nlogos, technical information, know-how, trade secrets, and any modifications or enhancements thereto (whether developed by Company,\nRecipient, any Related Party, or on either party’s behalf) or other intellectual property rights throughout the world, whether currently existing\nor hereafter developed or acquired, and all applications, disclosures and registrations with respect thereto (collectively, “IP Rights”). If\nRecipient or any third party engaged by Recipient is deemed to have any ownership interest or rights in any IP Rights in the Confidential\nInformation, then Recipient, for no additional consideration, shall assign and/or cause such third party to assign, and Recipient does hereby\nassign, all of such ownership interest and rights exclusively and irrevocably to Company. Recipient shall cooperate with Company and shall\ncause to be executed all such instruments and documents as Company reasonably may request in connection with such assignments and shall\ndo all other lawfully permitted acts reasonably required to further the intent of this Section 5; provided, however, this Agreement shall be\neffective regardless of whether any such additional documents are executed. Recipient shall not dispute or contest, directly or indirectly,\nCompany’s right, title and interest in or to, or the validity and enforceability of, any IP Rights in the Confidential Information (including the\nattempt to register or record the same in any jurisdiction). Notwithstanding anything herein to the contrary, this Section 5 shall survive any\ntermination or expiration of this Agreement.\n(b) Recipient may from time to time provide suggestions, comments or other feedback (“Feedback”) to Company with respect to the\nConfidential Information. Both parties agree that all Feedback is and shall be given entirely voluntarily. Recipient shall not give Feedback that\nis subject to license terms that seek to require any Company product, technology, service or documentation incorporating or derived from such\nFeedback, or any Company intellectual property, to be licensed or otherwise shared with any third party. Recipient hereby acknowledges and\nagrees that all Feedback shall be deemed Confidential Information of Company, subject to the obligations of confidentiality and restricted use\nprovided under this Agreement. Furthermore, Recipient hereby acknowledges and agrees that Company shall have the exclusive right to use,\ndisclose, reproduce, license or otherwise distribute, and exploit the Feedback as Company sees fit, entirely without obligation or restriction of\nany kind on account of intellectual property rights or otherwise.\n6. Accuracy and Completeness of Confidential Information. The disclosure of any Confidential Information to Recipient shall be solely in\nCompany’s discretion. This Agreement shall not require Company to disclose any information or to require the consummation of any transaction in\nconnection with which the Confidential Information is disclosed. Notwithstanding anything to the contrary, Company shall not be deemed to have\nmade any representation or warranty to Recipient concerning the accuracy or completeness of any Confidential Information, except to the extent that\nsuch representation or warranty may be expressly set forth in a definitive written agreement concerning any subsequent business relationship.\n7. Independent Contractors. Neither this Agreement, nor any terms and conditions contained herein, will be construed as creating a partnership,\njoint venture, or agency relationship or as granting a franchise. The parties are independent contractors each acting for its own account, and neither is\nauthorized to make any commitment or representation, express or implied, on the other’s behalf.\n8. Remedies. Recipient acknowledges and agrees that Company would be irreparably harmed if any of the Confidential Information were to be\ndisclosed to third parties, or if any use were to be made of the Confidential Information other than that specified in this Agreement, and further\nagrees that Company shall have the right to seek and obtain injunctive relief upon any violation or threatened violation of the terms of this\nAgreement\n12\nwithout the necessity of posting bond or other security, in addition to all other rights and remedies available to Company at law or in equity. Any\ntrade secrets of the Company will be entitled to all of the protections and benefits under the applicable Uniform Trade Secrets Act and any other\napplicable law. If any information that Company deems to be a trade secret is found by a court of competent jurisdiction not to be a trade secret for\npurposes of this Agreement, such information nevertheless will be considered Confidential Information for purposes of this Agreement. Recipient\nhereby waives any requirement that the Company submit proof of the economic value of any trade secret.\n9. Indemnity. Recipient shall indemnify Company for and against all damages, losses, claims, costs (including reasonable attorneys’ fees),\nexpenses and liabilities, suffered or incurred as a direct or indirect result of Recipient failing (whether intentionally or not) to fully comply with its\ncovenants and obligations under this Agreement, including by virtue of any act of any Related Party.\n10. Entire Agreement. This Agreement sets forth the complete and exclusive understanding of the parties regarding the subject matter of this\nAgreement and supersedes all prior agreements, understandings, and communications, oral or written, between the parties regarding the subject\nmatter of this Agreement. This Agreement is not, however, intended to limit any rights that Company may have under trade secret, copyright, patent,\ntrademark or other laws that may apply to the subject matter of this Agreement both during and after the term of this Agreement.\n11. Amendments. No amendment or waiver of any term of this Agreement shall be effective unless such amendment or waiver is in writing\nand is signed by each of the parties hereto.\n12. Assignment. Recipient shall not assign or transfer, in whole or in part and whether by contract or operation of law, this Agreement, or any\nrights or obligations hereunder, without the prior written consent of Company. Subject to the foregoing, this Agreement shall be binding upon, and\nshall inure to the benefit of, the parties and their respective representatives, successors and assigns.\n13. Attorneys’ Fees. If any party shall commence any action or proceeding against the other in order to enforce the provisions of this\nAgreement, or to recover damages as the result of the alleged breach of any of the provisions of this Agreement, the prevailing party therein shall be\nentitled to recover all reasonable costs incurred in connection therewith against the party commencing such action or the party who has breached this\nAgreement, as the case may be, including reasonable attorneys’ fees.\n14. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, other than such\nlaws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of Florida. Any suit to\nenforce any provision of this Agreement, or arising out of or based upon this Agreement, shall be brought exclusively in the United States District\nCourt for the District of Florida or the District Court in and for the city of Sarasota and the County of Sarasota, State of Florida. Each party hereby\nagrees that such courts shall have in personam jurisdiction and venue with respect to such party, and each party hereby submits to the in personam\njurisdiction and venue of such courts.\n15. Severability. If any provision of the Agreement shall be held by a court competent jurisdiction to be illegal, invalid or unenforceable, the\nparties hereby authorize the court to modify such provision to the minimum extent necessary to effectuate the parties’ intentions and the remaining\nprovisions shall remain in full force and effect.\n[SIGNATURE PAGE FOLLOWS]\n13\nThis Agreement has been executed as of the date first set forth above.\nSun Energy Solar, Inc.\nBy: /s/ Carl L. Smith\nTitle: CEO\nDate: July 10, 2006\nRecipient\nSignature: /s/ Robert Fugerer\nPrinted: Robert Fugerer\nDate:\nFebruary 18, 2006\n14	NON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into this 2nd day of February, 2006 by and between Sun Energy Solar, Inc.,\na Delaware company having an address at 6408 Parkland Drive, Suite 104, Sarasota, Florida 34243, United States of America (“Company”), and\nRobert Fugerer, an individual residing in the state of Florida, and having an address at 4819 Sky Blue Drive, Lutz, FL 33558(“Recipient”).\nRECITALS\nA. Company and Recipient have initiated or intend to initiate discussions concerning the possibility of entering into a mutually advantageous\nbusiness relationship whereby Recipient shall perform certain services on behalf of and for the benefit of Company (the “Limited Purpose”).\nB. To facilitate the disclosure of certain Confidential Information (as defined below) by Company to Recipient, the parties desire to enter into\nthis Agreement.\nAGREEMENT\nNow therefore, in consideration of the foregoing recitals, which are hereby incorporated into this Agreement by reference, and the mutual\ncovenants and agreements contained herein, and other good and valuable consideration, the adequacy and receipt of which is hereby acknowledged,\nthe parties agree as follows:\n1. Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following meanings:\n(a) “Confidential Information” mean any information, whether written, oral, magnetic, photographic, optical, or other form, tangible or\nintangible, which has been, or after the date hereof will be, furnished or disclosed by Company, or its employees, consultants, representatives\nor agents, or which Recipient may have access to in connection with the Limited Purpose, which has been designated as being confidential, or\nwhich under the circumstances of disclosure reasonably ought to be treated as confidential, including but not limited to any information\npertaining to or regarding the business, financial condition, pricing, sales, strategies, plans, customers, suppliers, properties and operations of\nCompany (including such information visually available to Recipient at Company’s premises or Company presentations), and including\nwithout limitation all technical information of any nature whatsoever and all business plans, inventions, trade secrets, know-how,\nmethodologies, concepts, techniques, discoveries, computer programs (including functionality and source code), processes, drawings, designs,\nresearch, plans or specifications relating thereto.\n(b) “Related Party” or “Related Parties” shall mean the directors, officers, employees, legal, tax and other professional advisors or\nconsultants of Recipient, to the extent such entities or persons receive Confidential Information.\n2. Non-Disclosure and Restricted Use of Confidential Information.\n(a) Recipient shall keep in strictest confidence and trust all Confidential Information and, except upon the express prior written consent\nof Company, Recipient shall (i) not disclose any Confidential Information to any other entity or person, and (ii) use the Confidential\nInformation solely as necessary to implement the Limited Purpose and not for Recipient’s own benefit or for the benefit of any other entity or\nperson. Recipient shall take all reasonable safeguards to prevent the disclosure or misuse of the Confidential Information, including without\nlimitation such measures as the Recipient takes to safeguard its own confidential information, and shall not photocopy, transcribe or otherwise\nreproduce or modify any of the Confidential Information except as necessary to implement the Limited Purpose or otherwise upon the express\nwritten consent of the Company.\n10\n(b) Recipient may disclose the Confidential Information to Related Parties on a “need to know” basis only. Recipient shall inform all\nRelated Parties who have access to the Confidential Information that such Confidential Information is confidential and proprietary to Company\nand shall require each such Related Party to agree to restrictions and obligations at least as strict as those set forth herein prior to disclosure of\nany Confidential Information. Recipient shall diligently enforce any and all confidentiality agreements with Related Parties and shall be\nresponsible and liable for any breach of the confidentiality obligations and restrictions on use set forth herein by any Related Party.\n(c) The obligations of Recipient stated in the preceding paragraphs of this Section 2 shall not apply to information that (i) is or becomes\ngenerally known or available to the public through no wrongful act of the Recipient; (ii) was in the Recipient's possession at the time of\ndisclosure or receipt, as evidenced and verified by prior tangible evidence, and was not acquired under an obligation of confidence;\n(iii) Recipient demonstrates was rightfully received by it from a third party after the time it was disclosed or obtained hereunder, provided that\nsuch third party was not under an obligation of confidence with the Company at the time of the third party’s disclosure to Recipient; (iv) is\nindependently developed by Recipient without use of or reference to the Confidential Information and without breach of this Agreement, as\nevidenced and verified by prior tangible evidence; or (v) is required to be disclosed in a judicial or administrative proceeding, or as otherwise\nrequired to be disclosed by law, in any such case after all reasonable legal remedies for maintaining such information in confidence have been\nexhausted, including, but not limited to, giving Company as much advance notice of the possibility of such disclosure as practical so Company\nmay attempt to stop such disclosure or obtain a protective order concerning such disclosure. Recipient shall provide Company with written\nnotice no less than five (5) days prior to the disclosure or use of any information of Company pursuant to this Section 2(c), subsections\n(i) through (v).\n(d) Recipient shall (i) notify Company immediately of any unauthorized possession, use or knowledge of the Confidential Information,\n(ii) promptly furnish Company full details of such possession, use or knowledge, and (iii) cooperate with Company against third parties as may\nbe deemed necessary by Company to protect its proprietary rights in the Confidential Information.\n3. Term of Agreement. This Agreement shall be effective as of the date of first disclosure of Confidential Information and may be terminated,\nwithout cause, with respect to future disclosures upon thirty (30) days prior written notice to the other party; provided however, that all rights and\nobligations accrued prior to such termination shall survive the termination of this Agreement. Notwithstanding anything herein to the contrary, the\nnondisclosure obligations and restrictions on use with respect to any Confidential Information shall continue and bind Recipient for a period of five\n(5) years after the date of the last disclosure of Confidential Information hereunder, except that the nondisclosure obligations and restrictions on use\nwith respect to any Confidential Information that constitutes a trade secret shall continue in effect for so long as the Confidential Information\nremains a trade secret under applicable law. Any termination or expiration of this Agreement shall be without prejudice to the rights of Company\nagainst Recipient in respect of any claim or breach of any of the provisions of this Agreement.\n4. Return of Confidential Information. Recipient shall return to Company, or at Company’s request, destroy, and shall cause its Related Parties\nto return or destroy, the Confidential Information and all copies, transcriptions or other reproductions of, and any notes relating to, the Confidential\nInformation, including without limitation, any memoranda, photocopies, computer files and libraries, computer-generated data or other similar\nrepositories or archives, upon (i) the accomplishment of the purpose for which the Confidential Information was provided, or (ii) receipt of a written\nnotice from Company requesting return or destruction of the Confidential Information, and upon request, shall provide to Company written\ncertification signed by an officer of Recipient that it has complied with the foregoing.\n5. Ownership.\n(a) All Confidential Information is and shall remain the property of Company. By disclosing Confidential Information to Recipient,\nCompany does not grant any express or implied right to Recipient to or under any patents, copyrights, trademarks, or trade secret information\nexcept as\n11\nrequired to implement the Limited Purpose. Company reserves without prejudice the ability to protect its rights under any such patents,\ncopyrights, trademarks, or trade secrets. Recipient shall not remove any proprietary, copyright, trade secret or other legend from any form of\nthe Confidential Information. Recipient shall, at the reasonable written request of Company and at Company’s expense, add to the Confidential\nInformation any proprietary, copyright, trade secret or other legend or modify the same, which Company deems necessary to protect its\nintellectual property rights. Without limiting the foregoing, Company shall retain all right, title, and interest in and to all forms of Confidential\nInformation delivered or disclosed hereunder, including, without limitation, any patents, copyrights, trademarks, service marks, trade dress,\nlogos, technical information, know-how, trade secrets, and any modifications or enhancements thereto (whether developed by Company,\nRecipient, any Related Party, or on either party’s behalf) or other intellectual property rights throughout the world, whether currently existing\nor hereafter developed or acquired, and all applications, disclosures and registrations with respect thereto (collectively, “IP Rights”). If\nRecipient or any third party engaged by Recipient is deemed to have any ownership interest or rights in any IP Rights in the Confidential\nInformation, then Recipient, for no additional consideration, shall assign and/or cause such third party to assign, and Recipient does hereby\nassign, all of such ownership interest and rights exclusively and irrevocably to Company. Recipient shall cooperate with Company and shall\ncause to be executed all such instruments and documents as Company reasonably may request in connection with such assignments and shall\ndo all other lawfully permitted acts reasonably required to further the intent of this Section 5; provided, however, this Agreement shall be\neffective regardless of whether any such additional documents are executed. Recipient shall not dispute or contest, directly or indirectly,\nCompany’s right, title and interest in or to, or the validity and enforceability of, any IP Rights in the Confidential Information (including the\nattempt to register or record the same in any jurisdiction). Notwithstanding anything herein to the contrary, this Section 5 shall survive any\ntermination or expiration of this Agreement.\n(b) Recipient may from time to time provide suggestions, comments or other feedback (“Feedback”) to Company with respect to the\nConfidential Information. Both parties agree that all Feedback is and shall be given entirely voluntarily. Recipient shall not give Feedback that\nis subject to license terms that seek to require any Company product, technology, service or documentation incorporating or derived from such\nFeedback, or any Company intellectual property, to be licensed or otherwise shared with any third party. Recipient hereby acknowledges and\nagrees that all Feedback shall be deemed Confidential Information of Company, subject to the obligations of confidentiality and restricted use\nprovided under this Agreement. Furthermore, Recipient hereby acknowledges and agrees that Company shall have the exclusive right to use,\ndisclose, reproduce, license or otherwise distribute, and exploit the Feedback as Company sees fit, entirely without obligation or restriction of\nany kind on account of intellectual property rights or otherwise.\n6. Accuracy and Completeness of Confidential Information. The disclosure of any Confidential Information to Recipient shall be solely in\nCompany’s discretion. This Agreement shall not require Company to disclose any information or to require the consummation of any transaction in connection with which the Confidential Information is disclosed. Notwithstanding anything to the contrary, Company shall not be deemed to have made any representation or warranty to Recipient concerning the accuracy or completeness of any Confidential Information, except to the extent that such representation or warranty may be expressly set forth in a definitive written agreement concerning any subsequent business relationship. 7. Independent Contractors. Neither this Agreement, nor any terms and conditions contained herein, will be construed as creating a partnership,\njoint venture, or agency relationship or as granting a franchise. The parties are independent contractors each acting for its own account, and neither is authorized to make any commitment or representation, express or implied, on the other’s behalf. 8. Remedies. Recipient acknowledges and agrees that Company would be irreparably harmed if any of the Confidential Information were to be\ndisclosed to third parties, or if any use were to be made of the Confidential Information other than that specified in this Agreement, and further agrees that Company shall have the right to seek and obtain injunctive relief upon any violation or threatened violation of the terms of this Agreement 12\nwithout the necessity of posting bond or other security, in addition to all other rights and remedies available to Company at law or in equity. Any\ntrade secrets of the Company will be entitled to all of the protections and benefits under the applicable Uniform Trade Secrets Act and any other\napplicable law. If any information that Company deems to be a trade secret is found by a court of competent jurisdiction not to be a trade secret for\npurposes of this Agreement, such information nevertheless will be considered Confidential Information for purposes of this Agreement. Recipient\nhereby waives any requirement that the Company submit proof of the economic value of any trade secret.\n9. Indemnity. Recipient shall indemnify Company for and against all damages, losses, claims, costs (including reasonable attorneys’ fees),\nexpenses and liabilities, suffered or incurred as a direct or indirect result of Recipient failing (whether intentionally or not) to fully comply with its\ncovenants and obligations under this Agreement, including by virtue of any act of any Related Party.\n10. Entire Agreement. This Agreement sets forth the complete and exclusive understanding of the parties regarding the subject matter of this\nAgreement and supersedes all prior agreements, understandings, and communications, oral or written, between the parties regarding the subject\nmatter of this Agreement. This Agreement is not, however, intended to limit any rights that Company may have under trade secret, copyright, patent,\ntrademark or other laws that may apply to the subject matter of this Agreement both during and after the term of this Agreement.\n11. Amendments. No amendment or waiver of any term of this Agreement shall be effective unless such amendment or waiver is in writing\nand is signed by each of the parties hereto.\n12. Assignment. Recipient shall not assign or transfer, in whole or in part and whether by contract or operation of law, this Agreement, or any\nrights or obligations hereunder, without the prior written consent of Company. Subject to the foregoing, this Agreement shall be binding upon, and\nshall inure to the benefit of, the parties and their respective representatives, successors and assigns.\n13. Attorneys’ Fees. If any party shall commence any action or proceeding against the other in order to enforce the provisions of this\nAgreement, or to recover damages as the result of the alleged breach of any of the provisions of this Agreement, the prevailing party therein shall be\nentitled to recover all reasonable costs incurred in connection therewith against the party commencing such action or the party who has breached this\nAgreement, as the case may be, including reasonable attorneys’ fees.\n14. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, other than such\nlaws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of Florida. Any suit to\nenforce any provision of this Agreement, or arising out of or based upon this Agreement, shall be brought exclusively in the United States District\nCourt for the District of Florida or the District Court in and for the city of Sarasota and the County of Sarasota, State of Florida. Each party hereby\nagrees that such courts shall have in personam jurisdiction and venue with respect to such party, and each party hereby submits to the in personam\njurisdiction and venue of such courts.\n15. Severability. If any provision of the Agreement shall be held by a court competent jurisdiction to be illegal, invalid or unenforceable, the\nparties hereby authorize the court to modify such provision to the minimum extent necessary to effectuate the parties’ intentions and the remaining\nprovisions shall remain in full force and effect.\n[SIGNATURE PAGE FOLLOWS]\n13\nThis Agreement has been executed as of the date first set forth above.\n14\nSun Energy Solar, Inc.\nBy: /s/Carl L. Smith\nTitle: CEO\nDate: July 10, 2006\nRecipient\nSignature: /s/ Robert Fugerer\nPrinted: Robert Fugerer\nDate: February 18, 2006	NON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT ("Agreement") is entered into this 2nd day of February, 2006 by and between Sun Energy Solar, Inc.,\na Delaware company having an address at 6408 Parkland Drive, Suite 104, Sarasota, Florida 34243, United States of America ("Company"),\nand\nRobert Fugerer, an individual residing in the state of Florida, and having an address at 4819 Sky Blue Drive, Lutz, FL 3558("Recipient").\nRECITALS\nA. Company and Recipient have initiated or intend to initiate discussions concerning the possibility of entering into a mutually advantageous\nbusiness relationship whereby Recipient shall perform certain services on behalf of and for the benefit of Company (the "Limited Purpose").\nB. To facilitate the disclosure of certain Confidential Information (as defined below) by Company to Recipient, the parties desire to enter into\nthis Agreement.\nAGREEMENT\nNow therefore, in consideration of the foregoing recitals, which are hereby incorporated into this Agreement by reference, and the mutual\ncovenants and agreements contained herein, and other good and valuable consideration, the adequacy and receipt of which is hereby acknowledged,\nthe parties agree as follows:\n1. Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following meanings:\n(a) "Confidential Information" mean any information, whether written, oral, magnetic, photographic, optical, or other form, tangible or\nintangible, which has been, or after the date hereof will be, furnished or disclosed by Company, or its employees, consultants, representatives\nor agents, or which Recipient may have access to in connection with the Limited Purpose, which has been designated as being confidential, or\nwhich under the circumstances of disclosure reasonably ought to be treated as confidential, including but not limited to any information\npertaining to or regarding the business, financial condition, pricing, sales, strategies, plans, customers, suppliers, properties and operations of\nCompany (including such information visually available to Recipient at Company's premises or Company presentations), and including\nwithout limitation all technical information of any nature whatsoever and all business plans, inventions, trade secrets, know-how,\nmethodologies, concepts, techniques, discoveries, computer programs (including functionality and source code), processes, drawings, designs,\nresearch, plans or specifications relating thereto.\n(b) "Related Party" or "Related Parties" shall mean the directors, officers, employees, legal, tax and other professional advisors or\nconsultants of Recipient, to the extent such entities or persons receive Confidential Information.\n2. Non-Disclosure and Restricted Use of Confidential Information.\n(a) Recipient shall keep in strictest confidence and trust all Confidential Information and, except upon the express prior written consent\nof Company, Recipient shall (i) not disclose any Confidential Information to any other entity or person, and (ii) use the Confidential\nInformation solely as necessary to implement the Limited Purpose and not for Recipient's own benefit or for the benefit of any other entity or\nperson. Recipient shall take all reasonable safeguards to prevent the disclosure or misuse of the Confidential Information, including without\nlimitation such measures as the Recipient takes to safeguard its own confidential information, and shall not photocopy, transcribe or otherwise\nreproduce or modify any of the Confidential Information except as necessary to implement the Limited Purpose or otherwise upon the express\nwritten consent of the Company.\n10\n(b) Recipient may disclose the Confidential Information to Related Parties on a "need to know" basis only. Recipient shall inform all\nRelated Parties who have access to the Confidential Information that such Confidential Information is confidential and proprietary to Company\nand shall require each such Related Party to agree to restrictions and obligations at least as strict as those set forth herein prior to disclosure of\nany Confidential Information. Recipient shall diligently enforce any and all confidentiality agreements with Related Parties and shall be\nresponsible and liable for any breach of the confidentiality obligations and restrictions on use set forth herein by any Related Party.\n(c) The obligations of Recipient stated in the preceding paragraphs of this Section 2 shall not apply to information that (i) is or becomes\ngenerally known or available to the public through no wrongful act of the Recipient; (ii) was in the Recipient's possession at the time of\ndisclosure or receipt, as evidenced and verified by prior tangible evidence, and was not acquired under an obligation of confidence;\n(iii) Recipient demonstrates was rightfully received by it from a third party after the time it was disclosed or obtained hereunder, provided that\nsuch third party was not under an obligation of confidence with the Company at the time of the third party's disclosure to Recipient; (iv) is\nindependently developed by Recipient without use of or reference to the Confidential Information and without breach of this Agreement, as\nevidenced and verified by prior tangible evidence; or (v) is required to be disclosed in a judicial or administrative proceeding, or as otherwise\nrequired to be disclosed by law, in any such case after all reasonable legal remedies for maintaining such information in confidence have been\nexhausted, including, but not limited to, giving Company as much advance notice of the possibility of such disclosure as practical so Company\nmay attempt to stop such disclosure or obtain a protective order concerning such disclosure. Recipient shall provide Company with written\nnotice no less than five (5) days prior to the disclosure or use of any information of Company pursuant to this Section 2(c), subsections\n(i) through (v).\n(d) Recipient shall (i) notify Company immediately of any unauthorized possession, use or knowledge of the Confidential Information,\n(ii) promptly furnish Company full details of such possession, use or knowledge, and (iii) cooperate with Company against third parties as may\nbe deemed necessary by Company to protect its proprietary rights in the Confidential Information.\n3. Term of Agreement. This Agreement shall be effective as of the date of first disclosure of Confidential Information and may be terminated,\nwithout cause, with respect to future disclosures upon thirty (30) days prior written notice to the other party; provided however, that all rights and\nobligations accrued prior to such termination shall survive the termination of this Agreement. Notwithstanding anything herein to the contrary, the\nnondisclosure obligations and restrictions on use with respect to any Confidential Information shall continue and bind Recipient for a period of five\n(5) years after the date of the last disclosure of Confidential Information hereunder, except that the nondisclosure obligations and restrictions on use\nwith respect to any Confidential Information that constitutes a trade secret shall continue in effect for so long as the Confidential Information\nremains a trade secret under applicable law. Any termination or expiration of this Agreement shall be without prejudice to the rights of Company\nagainst Recipient in respect of any claim or breach of any of the provisions of this Agreement.\n4. Return of Confidential Information Recipient shall return to Company, or at Company's request, destroy, and shall cause its Related Parties\nto return or destroy, the Confidential Information and all copies, transcriptions or other reproductions of, and any notes relating to, the Confidential\nInformation, including without limitation, any memoranda, photocopies, computer files and libraries, computer-generated data or other similar\nrepositories or archives, upon (i) the accomplishment of the purpose for which the Confidential Information was provided, or (ii) receipt of a written\nnotice from Company requesting return or destruction of the Confidential Information, and upon request, shall provide to Company written\ncertification signed by an officer of Recipient that it has complied with the foregoing.\n5. Ownership.\n(a) All Confidential Information is and shall remain the property of Company. By disclosing Confidential Information to Recipient,\nCompany does not grant any express or implied right to Recipient to or under any patents, copyrights, trademarks, or trade secret information\nexcept as\n11\nrequired to implement the Limited Purpose. Company reserves without prejudice the ability to protect its rights under any such patents,\ncopyrights, trademarks, or trade secrets. Recipient shall not remove any proprietary, copyright, trade secret or other legend from any form of\nthe Confidential Information. Recipient shall, at the reasonable written request of Company and at Company's expense, add to the Confidential\nInformation any proprietary, copyright, trade secret or other legend or modify the same, which Company deems necessary to protect its\nintellectual property rights. Without limiting the foregoing, Company shall retain all right, title, and interest in and to all forms of Confidential\nInformation delivered or disclosed hereunder, including, without limitation, any patents, copyrights, trademarks, service marks, trade dress,\nlogos, technical information, know-how, trade secrets, and any modifications or enhancements thereto (whether developed by Company,\nRecipient, any Related Party, or on either party's behalf) or other intellectual property rights throughout the world, whether currently existing\nor hereafter developed or acquired, and all applications, disclosures and registrations with respect thereto (collectively, "IP Rights"). If\nRecipient or any third party engaged by Recipient is deemed to have any ownership interest or rights in any IP Rights in the Confidential\nInformation, then Recipient, for no additional consideration, shall assign and/or cause such third party to assign, and Recipient does hereby\nassign, all of such ownership interest and rights exclusively and irrevocably to Company. Recipient shall cooperate with Company and shall\ncause to be executed all such instruments and documents as Company reasonably may request in connection with such assignments and shall\ndo all other lawfully permitted acts reasonably required to further the intent of this Section 5; provided, however, this Agreement shall be\neffective regardless of whether any such additiona documents are executed. Recipient shall not dispute or contest, directly or indirectly,\nCompany's right, title and interest in or to, or the validity and enforceability of, any IP Rights in the Confidential Information (including the\nattempt to register or record the same in any jurisdiction). Notwithstanding anything herein to the contrary, this Section 5 shall survive any\ntermination or expiration of this Agreement.\n(b) Recipient may from time to time provide suggestions, comments or other feedback ("Feedback") to Company with respect to the\nConfidential Information. Both parties agree that all Feedback is and shall be given entirely voluntarily. Recipient shall not give Feedback that\nis subject to license terms that seek to require any Company product, technology, service or documentation incorporating or derived from such\nFeedback, or any Company intellectual property, to be licensed or otherwise shared with any third party. Recipient hereby acknowledges and\nagrees that all Feedback shall be deemed Confidential Information of Company, subject to the obligations of confidentiality and restricted use\nprovided under this Agreement. Furthermore, Recipient hereby acknowledges and agrees that Company shall have the exclusive right to use,\ndisclose, reproduce, license or otherwise distribute, and exploit the Feedback as Company sees fit, entirely without obligation or restriction of\nany kind on account of intellectual property rights or otherwise.\n6. Accuracy and Completeness of Confidential Information. The disclosure of any Confidential Information to Recipient shall be solely in\nCompany's discretion. This Agreement shall not require Company to disclose any information or to require the consummation of any transaction\nin\nconnection with which the Confidential Information is disclosed. Notwithstanding anything to the contrary, Company shall not be deemed to have\nmade any representation or warranty to Recipient concerning the accuracy or completeness of any Confidential Information, except to the extent that\nsuch representation or warranty may be expressly set forth in a definitive written agreement concerning any subsequent business relationship.\n7. Independent Contractors. Neither this Agreement, nor any terms and conditions contained herein, will be construed as creating a partnership,\njoint venture, or agency relationship or as granting a franchise. The parties are independent contractors each acting for its own account, and neither\nis\nauthorized to make any commitment or representation, express or implied, on the other's behalf.\n8.\nRemedies.\nRecipient\nacknowledges\nand\nagrees\nthat\nCompany\nwould\nbe\nirreparably\nharmed\nif\nany\nof\nthe\nConfidential\nInformation\nwere\nto\nbe\ndisclosed to third parties, or if any use were to be made of the Confidential Information other than that specified in this Agreement, and further\nagrees that Company shall have the right to seek and obtain injunctive relief upon any violation or threatened violation of the terms of this\nAgreement\n12\nwithout the necessity of posting bond or other security, in addition to all other rights and remedies available to Company at law or in equity. Any\ntrade secrets of the Company will be entitled to all of the protections and benefits under the applicable Uniform Trade Secrets Act and any other\napplicable law. If any information that Company deems to be a trade secret is found by a court of competent jurisdiction not to be a trade secret for\npurposes of this Agreement, such information nevertheless will be considered Confidential Information for purposes of this Agreement. Recipient\nhereby waives any requirement that the Company submit proof of the economic value of any trade secret.\n9. Indemnity.. Recipient shall indemnify Company for and against all damages, losses, claims, costs (including reasonable attorneys' fees),\nexpenses and liabilities, suffered or incurred as a direct or indirect result of Recipient failing (whether intentionally or not) to fully comply with its\ncovenants and obligations under this Agreement, including by virtue of any act of any Related Party.\n10. Entire Agreement. This Agreement sets forth the complete and exclusive understanding of the parties regarding the subject matter of this\nAgreement and supersedes all prior agreements, understandings, and communications, oral or written, between the parties regarding the subject\nmatter of this Agreement. This Agreement is not, however, intended to limit any rights that Company may have under trade secret, copyright, patent,\ntrademark or other laws that may apply to the subject matter of this Agreement both during and after the term of this Agreement.\n11. Amendments. No amendment or waiver of any term of this Agreement shall be effective unless such amendment or waiver is in writing\nand is signed by each of the parties hereto.\n12. Assignment. Recipient shall not assign or transfer, in whole or in part and whether by contract or operation of law, this Agreement, or any\nrights or obligations hereunder, without the prior written consent of Company. Subject to the foregoing, this Agreement shall be binding upon, and\nshall inure to the benefit of, the parties and their respective representatives, successors and assigns.\n13.\nAttorneys' Fees. If any party shall commence any action or proceeding against the other in order to enforce the provisions of this\nAgreement, or to recover damages as the result of the alleged breach of any of the provisions of this Agreement, the prevailing party therein shall be\nentitled to recover all reasonable costs incurred in connection therewith against the party commencing such action or the party who has breached this\nAgreement, as the case may be, including reasonable attorneys' fees.\n14. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, other than such\nlaws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of Florida. Any suit to\nenforce any provision of this Agreement, or arising out of or based upon this Agreement, shall be brought exclusively in the United States District\nCourt for the District of Florida or the District Court in and for the city of Sarasota and the County of Sarasota, State of Florida. Each party hereby\nagrees that such courts shall have inpersonam jurisdiction and venue with respect to such party, and each party hereby submits to the in personam\njurisdiction and venue of such courts.\n15. Severability.. If any provision of the Agreement shall be held by a court competent jurisdiction to be illegal, invalid or unenforceable, the\nparties hereby authorize the court to modify such provision to the minimum extent necessary to effectuate the parties' intentions and the remaining\nprovisions shall remain in full force and effect.\n[SIGNATURE PAGE FOLLOWS]\n13\nThis Agreement has been executed as of the date first set forth above.\nSun Energy Solar, Inc.\nBy: /s/ Carl L. Smith\nTitle: CEO\nDate: July 10, 2006\nRecipient\nSignature: /s/ Robert Fugerer\nPrinted:\nRobert Fugerer\nDate:\nFebruary 18, 2006\n14	NON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into this 2nd day of February, 2006 by and between Sun Energy Solar, Inc.,\na Delaware company having an address at 6408 Parkland Drive, Suite 104, Sarasota, Florida 34243, United States of America (“Company”), and\nRobert Fugerer, an individual residing in the state of Florida, and having an address at 4819 Sky Blue Drive, Lutz, FL 33558(“Recipient”).\nRECITALS\nA. Company and Recipient have initiated or intend to initiate discussions concerning the possibility of entering into a mutually advantageous\nbusiness relationship whereby Recipient shall perform certain services on behalf of and for the benefit of Company (the “Limited Purpose”).\nB. To facilitate the disclosure of certain Confidential Information (as defined below) by Company to Recipient, the parties desire to enter into\nthis Agreement.\nAGREEMENT\nNow therefore, in consideration of the foregoing recitals, which are hereby incorporated into this Agreement by reference, and the mutual\ncovenants and agreements contained herein, and other good and valuable consideration, the adequacy and receipt of which is hereby acknowledged,\nthe parties agree as follows:\n1. Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following meanings:\n(a) “Confidential Information” mean any information, whether written, oral, magnetic, photographic, optical, or other form, tangible or\nintangible, which has been, or after the date hereof will be, furnished or disclosed by Company, or its employees, consultants, representatives\nor agents, or which Recipient may have access to in connection with the Limited Purpose, which has been designated as being confidential, or\nwhich under the circumstances of disclosure reasonably ought to be treated as confidential, including but not limited to any information\npertaining to or regarding the business, financial condition, pricing, sales, strategies, plans, customers, suppliers, properties and operations of\nCompany (including such information visually available to Recipient at Company’s premises or Company presentations), and including\nwithout limitation all technical information of any nature whatsoever and all business plans, inventions, trade secrets, know-how,\nmethodologies, concepts, techniques, discoveries, computer programs (including functionality and source code), processes, drawings, designs,\nresearch, plans or specifications relating thereto.\n(b) “Related Party” or “Related Parties” shall mean the directors, officers, employees, legal, tax and other professional advisors or\nconsultants of Recipient, to the extent such entities or persons receive Confidential Information.\n2. Non-Disclosure and Restricted Use of Confidential Information.\n(a) Recipient shall keep in strictest confidence and trust all Confidential Information and, except upon the express prior written consent\nof Company, Recipient shall (i) not disclose any Confidential Information to any other entity or person, and (ii) use the Confidential\nInformation solely as necessary to implement the Limited Purpose and not for Recipient’s own benefit or for the benefit of any other entity or\nperson. Recipient shall take all reasonable safeguards to prevent the disclosure or misuse of the Confidential Information, including without\nlimitation such measures as the Recipient takes to safeguard its own confidential information, and shall not photocopy, transcribe or otherwise\nreproduce or modify any of the Confidential Information except as necessary to implement the Limited Purpose or otherwise upon the express\nwritten consent of the Company.\n10\n(b) Recipient may disclose the Confidential Information to Related Parties on a “need to know” basis only. Recipient shall inform all\nRelated Parties who have access to the Confidential Information that such Confidential Information is confidential and proprietary to Company\nand shall require each such Related Party to agree to restrictions and obligations at least as strict as those set forth herein prior to disclosure of\nany Confidential Information. Recipient shall diligently enforce any and all confidentiality agreements with Related Parties and shall be\nresponsible and liable for any breach of the confidentiality obligations and restrictions on use set forth herein by any Related Party.\n(c) The obligations of Recipient stated in the preceding paragraphs of this Section 2 shall not apply to information that (i) is or becomes\ngenerally known or available to the public through no wrongful act of the Recipient; (ii) was in the Recipient's possession at the time of\ndisclosure or receipt, as evidenced and verified by prior tangible evidence, and was not acquired under an obligation of confidence;\n(iii) Recipient demonstrates was rightfully received by it from a third party after the time it was disclosed or obtained hereunder, provided that\nsuch third party was not under an obligation of confidence with the Company at the time of the third party’s disclosure to Recipient; (iv) is\nindependently developed by Recipient without use of or reference to the Confidential Information and without breach of this Agreement, as\nevidenced and verified by prior tangible evidence; or (v) is required to be disclosed in a judicial or administrative proceeding, or as otherwise\nrequired to be disclosed by law, in any such case after all reasonable legal remedies for maintaining such information in confidence have been\nexhausted, including, but not limited to, giving Company as much advance notice of the possibility of such disclosure as practical so Company\nmay attempt to stop such disclosure or obtain a protective order concerning such disclosure. Recipient shall provide Company with written\nnotice no less than five (5) days prior to the disclosure or use of any information of Company pursuant to this Section 2(c), subsections\n(i) through (v).\n(d) Recipient shall (i) notify Company immediately of any unauthorized possession, use or knowledge of the Confidential Information,\n(ii) promptly furnish Company full details of such possession, use or knowledge, and (iii) cooperate with Company against third parties as may\nbe deemed necessary by Company to protect its proprietary rights in the Confidential Information.\n3. Term of Agreement. This Agreement shall be effective as of the date of first disclosure of Confidential Information and may be terminated,\nwithout cause, with respect to future disclosures upon thirty (30) days prior written notice to the other party; provided however, that all rights and\nobligations accrued prior to such termination shall survive the termination of this Agreement. Notwithstanding anything herein to the contrary, the\nnondisclosure obligations and restrictions on use with respect to any Confidential Information shall continue and bind Recipient for a period of five\n(5) years after the date of the last disclosure of Confidential Information hereunder, except that the nondisclosure obligations and restrictions on use\nwith respect to any Confidential Information that constitutes a trade secret shall continue in effect for so long as the Confidential Information\nremains a trade secret under applicable law. Any termination or expiration of this Agreement shall be without prejudice to the rights of Company\nagainst Recipient in respect of any claim or breach of any of the provisions of this Agreement.\n4. Return of Confidential Information. Recipient shall return to Company, or at Company’s request, destroy, and shall cause its Related Parties\nto return or destroy, the Confidential Information and all copies, transcriptions or other reproductions of, and any notes relating to, the Confidential\nInformation, including without limitation, any memoranda, photocopies, computer files and libraries, computer-generated data or other similar\nrepositories or archives, upon (i) the accomplishment of the purpose for which the Confidential Information was provided, or (ii) receipt of a written\nnotice from Company requesting return or destruction of the Confidential Information, and upon request, shall provide to Company written\ncertification signed by an officer of Recipient that it has complied with the foregoing.\n5. Ownership.\n(a) All Confidential Information is and shall remain the property of Company. By disclosing Confidential Information to Recipient,\nCompany does not grant any express or implied right to Recipient to or under any patents, copyrights, trademarks, or trade secret information\nexcept as\n11\nrequired to implement the Limited Purpose. Company reserves without prejudice the ability to protect its rights under any such patents,\ncopyrights, trademarks, or trade secrets. Recipient shall not remove any proprietary, copyright, trade secret or other legend from any form of\nthe Confidential Information. Recipient shall, at the reasonable written request of Company and at Company’s expense, add to the Confidential\nInformation any proprietary, copyright, trade secret or other legend or modify the same, which Company deems necessary to protect its\nintellectual property rights. Without limiting the foregoing, Company shall retain all right, title, and interest in and to all forms of Confidential\nInformation delivered or disclosed hereunder, including, without limitation, any patents, copyrights, trademarks, service marks, trade dress,\nlogos, technical information, know-how, trade secrets, and any modifications or enhancements thereto (whether developed by Company,\nRecipient, any Related Party, or on either party’s behalf) or other intellectual property rights throughout the world, whether currently existing\nor hereafter developed or acquired, and all applications, disclosures and registrations with respect thereto (collectively, “IP Rights”). If\nRecipient or any third party engaged by Recipient is deemed to have any ownership interest or rights in any IP Rights in the Confidential\nInformation, then Recipient, for no additional consideration, shall assign and/or cause such third party to assign, and Recipient does hereby\nassign, all of such ownership interest and rights exclusively and irrevocably to Company. Recipient shall cooperate with Company and shall\ncause to be executed all such instruments and documents as Company reasonably may request in connection with such assignments and shall\ndo all other lawfully permitted acts reasonably required to further the intent of this Section 5; provided, however, this Agreement shall be\neffective regardless of whether any such additional documents are executed. Recipient shall not dispute or contest, directly or indirectly,\nCompany’s right, title and interest in or to, or the validity and enforceability of, any IP Rights in the Confidential Information (including the\nattempt to register or record the same in any jurisdiction). Notwithstanding anything herein to the contrary, this Section 5 shall survive any\ntermination or expiration of this Agreement.\n(b) Recipient may from time to time provide suggestions, comments or other feedback (“Feedback”) to Company with respect to the\nConfidential Information. Both parties agree that all Feedback is and shall be given entirely voluntarily. Recipient shall not give Feedback that\nis subject to license terms that seek to require any Company product, technology, service or documentation incorporating or derived from such\nFeedback, or any Company intellectual property, to be licensed or otherwise shared with any third party. Recipient hereby acknowledges and\nagrees that all Feedback shall be deemed Confidential Information of Company, subject to the obligations of confidentiality and restricted use\nprovided under this Agreement. Furthermore, Recipient hereby acknowledges and agrees that Company shall have the exclusive right to use,\ndisclose, reproduce, license or otherwise distribute, and exploit the Feedback as Company sees fit, entirely without obligation or restriction of\nany kind on account of intellectual property rights or otherwise.\n6. Accuracy and Completeness of Confidential Information. The disclosure of any Confidential Information to Recipient shall be solely in\nCompany’s discretion. This Agreement shall not require Company to disclose any information or to require the consummation of any transaction in\nconnection with which the Confidential Information is disclosed. Notwithstanding anything to the contrary, Company shall not be deemed to have\nmade any representation or warranty to Recipient concerning the accuracy or completeness of any Confidential Information, except to the extent that\nsuch representation or warranty may be expressly set forth in a definitive written agreement concerning any subsequent business relationship.\n7. Independent Contractors. Neither this Agreement, nor any terms and conditions contained herein, will be construed as creating a partnership,\njoint venture, or agency relationship or as granting a franchise. The parties are independent contractors each acting for its own account, and neither is\nauthorized to make any commitment or representation, express or implied, on the other’s behalf.\n8. Remedies. Recipient acknowledges and agrees that Company would be irreparably harmed if any of the Confidential Information were to be\ndisclosed to third parties, or if any use were to be made of the Confidential Information other than that specified in this Agreement, and further\nagrees that Company shall have the right to seek and obtain injunctive relief upon any violation or threatened violation of the terms of this\nAgreement\n12\nwithout the necessity of posting bond or other security, in addition to all other rights and remedies available to Company at law or in equity. Any\ntrade secrets of the Company will be entitled to all of the protections and benefits under the applicable Uniform Trade Secrets Act and any other\napplicable law. If any information that Company deems to be a trade secret is found by a court of competent jurisdiction not to be a trade secret for\npurposes of this Agreement, such information nevertheless will be considered Confidential Information for purposes of this Agreement. Recipient\nhereby waives any requirement that the Company submit proof of the economic value of any trade secret.\n9. Indemnity. Recipient shall indemnify Company for and against all damages, losses, claims, costs (including reasonable attorneys’ fees),\nexpenses and liabilities, suffered or incurred as a direct or indirect result of Recipient failing (whether intentionally or not) to fully comply with its\ncovenants and obligations under this Agreement, including by virtue of any act of any Related Party.\n10. Entire Agreement. This Agreement sets forth the complete and exclusive understanding of the parties regarding the subject matter of this\nAgreement and supersedes all prior agreements, understandings, and communications, oral or written, between the parties regarding the subject\nmatter of this Agreement. This Agreement is not, however, intended to limit any rights that Company may have under trade secret, copyright, patent,\ntrademark or other laws that may apply to the subject matter of this Agreement both during and after the term of this Agreement.\n11. Amendments. No amendment or waiver of any term of this Agreement shall be effective unless such amendment or waiver is in writing\nand is signed by each of the parties hereto.\n12. Assignment. Recipient shall not assign or transfer, in whole or in part and whether by contract or operation of law, this Agreement, or any\nrights or obligations hereunder, without the prior written consent of Company. Subject to the foregoing, this Agreement shall be binding upon, and\nshall inure to the benefit of, the parties and their respective representatives, successors and assigns.\n13. Attorneys’ Fees. If any party shall commence any action or proceeding against the other in order to enforce the provisions of this\nAgreement, or to recover damages as the result of the alleged breach of any of the provisions of this Agreement, the prevailing party therein shall be\nentitled to recover all reasonable costs incurred in connection therewith against the party commencing such action or the party who has breached this\nAgreement, as the case may be, including reasonable attorneys’ fees.\n14. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, other than such\nlaws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of Florida. Any suit to\nenforce any provision of this Agreement, or arising out of or based upon this Agreement, shall be brought exclusively in the United States District\nCourt for the District of Florida or the District Court in and for the city of Sarasota and the County of Sarasota, State of Florida. Each party hereby\nagrees that such courts shall have in personam jurisdiction and venue with respect to such party, and each party hereby submits to the in personam\njurisdiction and venue of such courts.\n15. Severability. If any provision of the Agreement shall be held by a court competent jurisdiction to be illegal, invalid or unenforceable, the\nparties hereby authorize the court to modify such provision to the minimum extent necessary to effectuate the parties’ intentions and the remaining\nprovisions shall remain in full force and effect.\n[SIGNATURE PAGE FOLLOWS]\n13\nThis Agreement has been executed as of the date first set forth above.\nSun Energy Solar, Inc.\nBy: /s/ Carl L. Smith\nTitle: CEO\nDate: July 10, 2006\nRecipient\nSignature: /s/ Robert Fugerer\nPrinted: Robert Fugerer\nDate:\nFebruary 18, 2006\n14
7a20fb6f63aad5ff33abf4db2eb38950.pdf	effective_date jurisdiction party term	EX-99.D.15 30 y95188exv99wdw15.txt FORM OF NON-DISCLOSURE AGREEMENT Exhibit (d)(15)\nCONFIDENTIAL January 7, 2004 Mr. Stephen L. Waechter CACI International, Inc. 1100 North Glebe Road Arlington,\nVA 22201 Mr. Waechter: To facilitate discussions relating to a potential business combination (the "Transaction")\nbetween CACI International, Inc. (together with its subsidiaries, "Company") and American Management Systems,\nIncorporated (together with its subsidiaries, "AMS"), Company expects to make available to AMS and its\nRepresentatives (as defined) nonpublic information concerning Company, including, but not limited to information\nconcerning the businesses, condition (financial and other), operations, and prospects of Company, and AMS expects to\nmake available to Company and its Representatives nonpublic information concerning AMS, including, but not limited\nto information concerning the businesses, condition (financial and other), operations, and prospects of AMS. As a\ncondition to such information being made available, each party agrees that all Evaluation Material (as defined) received\nby it or its Representatives from the other party or any of any of its Representatives shall be treated in accordance with\nthis Nondisclosure and Confidentiality Agreement (this "Agreement"). 1. Certain Definitions. As used in this\nAgreement: (a) "Receiving Party" means the party receiving Evaluation Material; (b) "Furnishing Party" means the party\nproviding Evaluation Material or causing Evaluation Material to be provided; (c) "Representatives" means the directors,\nofficers, employees, agents or advisors (including, without limitation, attorneys, accountants, investment bankers and\nconsultants) of the specified party; and (d) "Evaluation Material" means all information concerning the Furnishing Party\nor any of its subsidiaries or affiliates, whether in verbal, visual, written, electronic or other form, which is made available\nby the Furnishing Party or any of its Representatives to the Receiving Party or any of its Representatives ("Primary\nEvaluation Material"), together, in each case, with all notes, memoranda, summaries, analyses, studies, compilations and\nother writings relating thereto or based thereon prepared by the Receiving Party or any of its Representatives\n("Derivative Evaluation Material"). Notwithstanding the foregoing, the term "Evaluation Material" shall not include\ninformation which the Receiving Party can demonstrate (u) was rightfully in the possession of the Receiving Party prior\nto disclosure by the Furnishing Party; (v) was or is independently developed by the Receiving Party without use of the\nEvaluation Material; (w) is now, or hereafter becomes, available to the public other than as a result of disclosure by the\nReceiving Party prohibited by this Agreement; (x) becomes available to the Receiving Party or any of its Representatives\non a non-confidential basis from a source other than the Furnishing Party or any of its Representatives and such source is\nnot, to the knowledge of the Receiving Party following reasonable inquiry, under any obligation to the Furnishing Party\nor any of its Representatives to keep such information confidential; (y) is transmitted by or on behalf of the Furnishing\nParty after receiving written notification from the Receiving Party of the termination of discussions relating to the\nTransaction or written instructions from the Receiving Party not to furnish any further Evaluation Material; or (z) is\ndisclosed as provided in Paragraph 2(b). 2. Confidentiality and Use of Evaluation Material. (a) Confidentiality of\nEvaluation Material. All Evaluation Material (i) shall be used solely for the purpose of evaluating and considering the\nTransaction; (ii) shall be kept strictly confidential by the Receiving Party; and (iii) shall be provided by the Receiving\nParty solely to those of its Representatives to whom disclosure is reasonably deemed to be required to facilitate the\nReceiving Party's evaluation or consideration of the Transaction. The parties intend to restrict the dissemination of\nEvaluation Material to as small a working group as practicable. All Evaluation Material is and shall remain the property\nof the Furnishing Party. Before providing access to Evaluation Material to any Representative, the Receiving Party shall\ninform such Representative of the contents of this Agreement and the confidentiality of the Evaluation Material, and\nshall advise such Representative that, by accepting possession of or access to such information, such Representative is\nagreeing to be bound by this Agreement. Each party shall instruct its Representatives to observe the terms of this\nAgreement and shall be responsible for any breach of this Agreement by any of its Representatives. (b) Compulsory\nDisclosure of Evaluation Material. If the Receiving Party is requested in any judicial or administrative proceeding, or by\nany governmental or regulatory authority, to disclose any Evaluation Material (whether by deposition, interrogatory,\nrequest for documents, subpoena, civil investigative demand or otherwise), the Receiving Party shall give the Furnishing\nParty prompt notice of such request so that the Furnishing Party may seek an appropriate protective order, and, upon the\nFurnishing Party's request and at the Furnishing Party's expense, shall cooperate with the Furnishing Party in seeking\nsuch an order. If the Receiving Party is nonetheless compelled to disclose Evaluation Material, the Receiving Party shall\ndisclose only that portion of the Evaluation Material which the Receiving Party is legally required to disclose and, upon\nthe Furnishing Party's request and at the Furnishing Party's expense, shall use commercially reasonable efforts to obtain\nassurances that confidential treatment will be accorded to such Evaluation Material to the extent such assurances are\navailable. Subject to the foregoing conditions and limitations, the Receiving Party may disclose Evaluation Material\nwithout liability hereunder. (c) Disclosure to Tax Authorities. Notwithstanding anything herein to the contrary, except\nwhere such disclosure would be prohibited under U.S . securities laws, any party to this Agreement (and each employee,\nrepresentative or other agent thereof) may disclose to any and all persons, without limitation of any kind, the tax\ntreatment and tax structure of the proposed Transaction and all materials of any kind (including opinions or other tax\nanalyses) that are provided to the party relating to such tax treatment and tax structure. For this purpose, a "tax structure"\nmeans any facts relevant to the U.S . federal income tax treatment of the proposed Transaction and does not include\ninformation relating to the identity of the parties. (d) Other Public Disclosure. Except (i) for such public disclosure as\nmay be necessary, in the good faith judgment of the disclosing party following consultation with outside counsel, for the\ndisclosing party not to be in violation of any applicable law, regulation, order or listing agreement, or (ii) with the prior\nwritten consent of the other party, neither party shall: (A) make any disclosure (and each party shall direct its\nRepresentatives not to make any disclosure) to any person of (1) the fact that discussions, negotiations or investigations\nare taking or have taken place concerning a Transaction, (2) the existence or contents of this Agreement, or the fact that\neither party has requested or received Evaluation Material from the other party, or (3) any of the terms, conditions or\nother facts with respect to any proposed Transaction, including the status thereof, or (B) make any public statement\nconcerning the proposed Transaction. If either party proposes to make any disclosure in reliance on clause (i) above, the\ndisclosing party shall, if practicable, provide the other party with the text of the proposed disclosure as far in advance of\nits disclosure as is practicable and shall in good faith consult with and consider the suggestions of the other party\nconcerning the nature and scope of the information it proposes to disclose. - 2 - (e) Securities Law Restrictions. Each\nparty acknowledges that the Evaluation Material may contain material nonpublic information concerning the Furnishing\nParty. Each party further acknowledges its awareness of the restrictions imposed by federal and state securities laws on\npersons in possession of material nonpublic information, and agrees that while it is in possession of material nonpublic\ninformation with respect to the other party, it shall not purchase or sell any securities of the other party, or communicate\nsuch information to any third party, in violation of applicable law. Nothing herein shall constitute an admission by either\nparty that any Evaluation Material in fact contains material nonpublic information concerning the Furnishing Party. (f)\nContact with Employees and Representatives. Neither party shall communicate with any employee of the other party\nregarding the Transaction or disclose any Evaluation Material to any employee or Representative of the other party, other\nthan the employees and Representatives named on the working group lists exchanged by the parties from time to time. 3.\nAccuracy of Evaluation Material; No Representations or Warranties. Each party acknowledges and agrees (a) that no\nrepresentation or warranty, express or implied, is made by either party, or any of its respective Representatives, as to the\naccuracy or completeness of the Evaluation Material and (b) that the parties shall be entitled to rely only on those\nrepresentations and warranties (if any) that may be made in a definitive written Transaction agreement, signed and\ndelivered by both parties. Unless otherwise provided in the definitive written Transaction agreement, neither the\nFurnishing Party nor any of its Representatives shall have any liability to the Receiving Party or any of its\nRepresentatives on account of the use of any Evaluation Material by the Receiving Party or any of its Representatives or\nany inaccuracy therein or omission therefrom. 4. Return and Destruction of Evaluation Material. At any time after\ntermination of discussions by either party to this Agreement with respect to the Transaction, upon the request of the\nFurnishing Party, the Receiving Party shall promptly (and in no event later than five business days after such request) (a)\nreturn or cause to be returned to the Furnishing Party all copies of all Primary Evaluation Material in the possession or\ncontrol of the Receiving Party or its Representatives which is in a visual or written format and erase or destroy all copies\nof all such Primary Evaluation Material which is stored in electronic format (and certify to the Furnishing Party such\nerasure or destruction), and (b) destroy or cause to be destroyed (and certify such destruction to the Furnishing Party) all\nDerivative Evaluation Material in the possession or control of the Receiving Party or any of its Representatives. Nothing\nherein shall obligate the Receiving Party to provide any Derivative Evaluation Material to the Furnishing Party.\nNotwithstanding the return, destruction or erasure of Evaluation Material hereunder, the Receiving Party and its\nRepresentatives shall continue to be bound by their confidentiality and other obligations hereunder. 5. Non-solicitation of\nEmployees. Each party agrees not to directly or indirectly solicit for employment any management employees or other\ncurrent employees of the other party to whom a party may be directly or indirectly introduced or otherwise have contact\nwith as a result of its consideration of a Transaction for a period of one year after the date of this letter, without the prior\nwritten consent of the other party, provided that neither party will be restricted from making any general solicitation for\nemployees or public advertising of employment opportunities (including through the use of employment agencies) not\nspecifically directed at such persons, and provided further that neither party will be restricted in hiring any such person\nwho responds to any such general or public advertising. - 3 - 6. Standstill. (a) Each party agrees that the Evaluation\nMaterial is being furnished to the other party in consideration of their respective agreement that neither party nor its\nrespective Representatives will, for a period of one year from the date hereof, directly or indirectly, alone or with others,\n(a) negotiate with or provide any information to the other party with respect to, or make any statement or proposal to the\nBoard of Directors of, such other party, to any of its agents or to any stockholder of such other party with respect to, or\nmake any public announcement or proposal or offer whatsoever (including, but not limited to any "solicitation" or\n"proxies" as such terms are defined or used in Regulation 14A of the Securities Exchange Act of 1934) with respect to,\nor otherwise solicit, seek or offer to effect (i) any form of business combination or transaction involving the other party\nor any affiliate thereof, including, without limitation, a merger, tender or exchange offer or liquidation of the other\nparty's assets, (ii) any form of restructuring, recapitalization or similar transaction with respect to the other party or any\naffiliate thereof, (iii) any purchase of any securities or assets, or rights to acquire any securities or assets, of the other\nparty, (iv) any proposal to seek representation on the Board of Directors of the other party or otherwise seek to control or\ninfluence the management, Board of Directors or policies of the other party, (v) any request or proposal to waive,\nterminate or amend the provisions of this letter, or (vi) any proposal or other statement inconsistent with the terms of this\nletter, (b) instigate, encourage or assist any third party to do any of the foregoing, or (c) become a beneficial owner of\nany securities of the other party (except that each party may purchase for investment in market transactions up to 1% of\nthe other party's stock), unless and until such party has received the prior written invitation or approval of a majority of\nthe Board of Directors of the other party to do any of the foregoing. The foregoing shall not apply to either party's\nRepresentatives effecting or recommending transactions in the other party's securities in the ordinary course of their\nbusiness as, without limitation, an investment advisor, broker, dealer in securities, market maker, specialist or block\npositioner. (b) The provisions of the foregoing paragraph shall not apply, and the Company shall be free to engage in any\nof the activities otherwise prohibited by the foregoing paragraph, from the date of public announcement of or public\ndisclosure of commencement of: (i) a tender or exchange offer to acquire 20% or more of any class of then outstanding\nvoting securities of AMS by any person or group of persons (other than the Company or a group including the\nCompany); or (ii) any merger, sale or other business combination transaction (A) pursuant to which any class of\noutstanding voting securities of AMS would be converted into cash or securities of another person or group of persons\nacting as a group (other than the Company or a group including the Company) with the result that 20% or more of any\nclass of then outstanding voting securities of AMS would be owned by persons other than the then current holders of\nsuch class of voting securities of AMS or (B) which would result in all or a substantial portion of the AMS's assets being\nsold to any person or group (other than the Company or a group including the Company), to the earlier of the date of\ncompletion of the said tender offer or business transaction and the date of withdrawal or cancellation of same; provided,\nhowever, that this paragraph 6(b) shall not apply in the event such tender offer or business transaction is commenced\nwith the consent of AMS. - 4 - 7. Remedies. Each party agrees that money damages would not be a sufficient remedy for\nany breach of any provision of this Agreement by the other party or any of its Representatives, and that in addition to all\nother remedies which any party hereto may have, each party shall be entitled to specific performance and injunctive or\nother equitable relief as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies\nfor a breach of this Agreement but shall be in addition to all other remedies available at law or in equity. No failure or\ndelay by any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor\nshall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder. 8. Miscellaneous. (a) No License. Neither party grants a license, by implication or\notherwise, under any of its patents, trade secrets or other intellectual property rights to the Receiving Party. The terms of\nthis Agreement shall not be construed to limit either party's right to independently develop or acquire products without\nuse of the other party's Evaluation Material. Nothing in this Agreement will be construed as a representation or\nagreement that the Receiving Party will not develop, or have developed for it, products, concepts, systems or techniques\nthat are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the\nEvaluation Material, provided that the Receiving Party does not violate any of its obligations under this Agreement in\nconnection with such development. (b) Entire Agreement. This Agreement contains the sole and entire agreement\nbetween the parties with respect to the confidentiality of the Evaluation Material and the confidentiality of their\ndiscussions, negotiations and investigations concerning a Transaction. (c) Amendment and Waiver. This Agreement may\nbe amended, modified or waived only by a separate written instrument duly signed and delivered by or on behalf of both\nparties. (d) Severability. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect\nthe validity or enforceability of any other provision of this Agreement, unless the enforcement of such provision in such\ncircumstances would be inequitable. (e) No Obligation to Complete a Transaction. This Agreement is not intended to,\nand does not, constitute an agreement, or impose any obligation, to consummate a Transaction, to conduct or continue\nnegotiations with respect to a Transaction, or to enter into a definitive Transaction agreement. Neither party shall have\nany rights or obligations of any kind whatsoever with respect to a Transaction by virtue of this Agreement or by virtue of\nany other written or oral expression by the parties' respective Representatives unless and until a definitive Transaction\nagreement between the parties is executed and delivered by both parties. Both parties further acknowledge and agree that\neach party reserves the right, in its sole discretion, to provide or not to provide Evaluation Material to the Receiving\nParty under this Agreement, to reject any and all proposals made by the other party or any of its Representatives with\nregard to a Transaction, and to terminate discussions and negotiations at any time for any reason or no reason. If either\nparty determines not to proceed with negotiations with respect to a Transaction, it will promptly inform the other party of\nsuch determination. (f) Governing Law; Forum. This Agreement shall be governed by, and construed in accordance with,\nthe laws of the Commonwealth of Virginia. Each party hereto consents and submits to the exclusive jurisdiction of the\ncourts of the State of Virginia and the courts of the United States located in the Eastern District of Virginia for the\nadjudication of any action, suit, or proceeding arising out of or otherwise relating to this Agreement. [Remainder of Page\nIntentionally Blank] - 5 - (g) If the foregoing correctly sets forth our agreement with respect to the matters set forth\nherein, please so indicate by signing two copies of this Agreement and returning one signed copy to me, whereupon this\nAgreement shall constitute our binding agreement with respect to the matters set forth herein. Very truly yours,\nAMERICAN MANAGEMENT SYSTEMS, INCORPORATED By:__________________________________ David\nW.H. Sharman: Senior Vice President, Corporate Development ACCEPTED AND AGREED TO AS OF THE DATE\nFIRST WRITTEN ABOVE: CACI INTERNATIONAL, INC. By: ________________________________ Name:\n______________________________\nTitle: _______________________________ - 6 -	EX-99.D.15 30 y95188exv99wdw15.txt FORM OF NON-DISCLOSURE AGREEMENT Exhibit (d)(15)\nCONFIDENTTIAL January 7, 2004 Mr. Stephen L. Waechter CACI International, Inc. 1100 North Glebe Road Arlington,\nVA 22201 Mr. Waechter: To facilitate discussions relating to a potential business combination (the "Transaction")\nbetween CACI International, Inc. (together with its subsidiaries, "Company") and American Management Systems,\nIncorporated (together with its subsidiaries, "AMS"), Company expects to make available to AMS and its\nRepresentatives (as defined) nonpublic information concerning Company, including, but not limited to information\nconcerning the businesses, condition (financial and other), operations, and prospects of Company, and AMS expects to\nmake available to Company and its Representatives nonpublic information concerning AMS, including, but not limited\nto information concerning the businesses, condition (financial and other), operations, and prospects of AMS. As a\ncondition to such information being made available, each party agrees that all Evaluation Material (as defined) received\nby it or its Representatives from the other party or any of any of its Representatives shall be treated in accordance with\nthis Nondisclosure and Confidentiality Agreement (this "Agreement"). 1. Certain Definitions. As used in this\nAgreement: (a) "Receiving Party" means the party receiving Evaluation Material; (b) "Furnishing Party" means the party\nproviding Evaluation Material or causing Evaluation Material to be provided; (c) "Representatives" means the directors,\nofficers, employees, agents or advisors (including, without limitation, attorneys, accountants, investment bankers and\nconsultants) of the specified party; and (d) "Evaluation Material" means all information concerning the Furnishing Party\nor any of its subsidiaries or affiliates, whether in verbal, visual, written, electronic or other form, which is made available\nby the Furnishing Party or any of its Representatives to the Receiving Party or any of its Representatives ("Primary\nEvaluation Material"), together, in each case, with all notes, memoranda, summaries, analyses, studies, compilations and\nother writings relating thereto or based thereon prepared by the Receiving Party or any of its Representatives\n("Derivative Evaluation Material"). Notwithstanding the foregoing, the term "Evaluation Material" shall not include\ninformation which the Receiving Party can demonstrate (u) was rightfully in the possession of the Receiving Party prior\nto disclosure by the Furnishing Party; (v) was or is independently developed by the Receiving Party without use of the\nEvaluation Material; (w) is now, or hereafter becomes, available to the public other than as a result of disclosure by the\nReceiving Party prohibited by this Agreement; (x) becomes available to the Receiving Party or any of its Representatives\non a non-confidential basis from a source other than the Furnishing Party or any of its Representatives and such source is\nnot, to the knowledge of the Receiving Party following reasonable inquiry, under any obligation to the Furnishing Party\nor any of its Representatives to keep such information confidential; (y) is transmitted by or on behalf of the Furnishing\nParty after receiving written notification from the Receiving Party of the termination of discussions relating to the\nTransaction or written instructions from the Receiving Party not to furnish any further Evaluation Material; or (z) is\ndisclosed as provided in Paragraph 2(b). 2. Confidentiality and Use of Evaluation Material. (a) Confidentiality of\nEvaluation Material. All Evaluation Material (i) shall be used solely for the purpose of evaluating and considering the\nTransaction; (ii) shall be kept strictly confidential by the Receiving Party; and (iii) shall be provided by the Receiving\nParty solely to those of its Representatives to whom disclosure is reasonably deemed to be required to facilitate the\nReceiving Party's evaluation or consideration of the Transaction. The parties intend to restrict the dissemination of\nEvaluation Material to as small a working group as practicable. All Evaluation Material is and shall remain the property\nof the Furnishing Party. Before providing access to Evaluation Material to any Representative, the Receiving Party shall\ninform such Representative of the contents of this Agreement and the confidentiality of the Evaluation Material, and\nshall advise such Representative that, by accepting possession of or access to such information, such Representative is\nagreeing to be bound by this Agreement. Each party shall instruct its Representatives to observe the terms of this\nAgreement and shall be responsible for any breach of this Agreement by any of its Representatives. (b) Compulsory\nDisclosure of Evaluation Material. If the Receiving Party is requested in any judicial or administrative proceeding, or by\nany governmental or regulatory authority, to disclose any Evaluation Material (whether by deposition, interrogatory,\nrequest for documents, subpoena, civil investigative demand or otherwise), the Receiving Party shall give the Furnishing\nParty prompt notice of such request so that the Furnishing Party may seek an appropriate protective order, and, upon the\nFurnishing Party's request and at the Furnishing Party's expense, shall cooperate with the Furnishing Party in seeking\nsuch an order. If the Receiving Party is nonetheless compelled to disclose Evaluation Material, the Receiving Party shall\ndisclose only that portion of the Evaluation Material which the Receiving Party is legally required to disclose and, upon\nthe Furnishing Party's request and at the Furnishing Party's expense, shall use commercially reasonable efforts to obtain\nassurances that confidential treatment will be accorded to such Evaluation Material to the extent such assurances are\navailable. Subject to the foregoing conditions and limitations, the Receiving Party may disclose Evaluation Material\nwithout liability hereunder. (c) Disclosure to Tax Authorities. Notwithstanding anything herein to the contrary, except\nwhere such disclosure would be prohibited under U.S. securities laws, any party to this Agreement (and each employee,\nrepresentative or other agent thereof) may disclose to any and all persons, without limitation of any kind, the tax\ntreatment and tax structure of the proposed Transaction and all materials of any kind (including opinions or other tax\nanalyses) that are provided to the party relating to such tax treatment and tax structure. For this purpose, a "tax structure"\nmeans any facts relevant to the U.S. federal income tax treatment of the proposed Transaction and does not include\ninformation relating to the identity of the parties. (d) Other Public Disclosure. Except (i) for such public disclosure as\nmay be necessary, in the good faith judgment of the disclosing party following consultation with outside counsel, for the\ndisclosing party not to be in violation of any applicable law, regulation, order or listing agreement, or (ii) with the prior\nwritten consent of the other party, neither party shall: (A) make any disclosure (and each party shall direct its\nRepresentatives not to make any disclosure) to any person of (1) the fact that discussions, negotiations or investigations\nare taking or have taken place concerning a Transaction, (2) the existence or contents of this Agreement, or the fact that\neither party has requested or received Evaluation Material from the other party, or (3) any of the terms, conditions or\nother facts with respect to any proposed Transaction, including the status thereof, or (B) make any public statement\nconcerning the proposed Transaction. If either party proposes to make any disclosure in reliance on clause (i) above, the\ndisclosing party shall, if practicable, provide the other party with the text of the proposed disclosure as far in advance of\nits disclosure as is practicable and shall in good faith consult with and consider the suggestions of the other party\nconcerning the nature and scope of the information it proposes to disclose. - 2 - (e) Securities Law Restrictions. Each\nparty acknowledges that the Evaluation Material may contain material nonpublic information concerning the Furnishing\nParty. Each party further acknowledges its awareness of the restrictions imposed by federal and state securities laws on\npersons in possession of material nonpublic information, and agrees that while it is in possession of material nonpublic\ninformation with respect to the other party, it shall not purchase or sell any securities of the other party, or communicate\nsuch information to any third party, in violation of applicable law. Nothing herein shall constitute an admission by either\nparty that any Evaluation Material in fact contains material nonpublic information concerning the Furnishing Party. (f)\nContact with Employees and Representatives. Neither party shall communicate with any employee of the other party\nregarding the Transaction or disclose any Evaluation Material to any employee or Representative of the other party, other\nthan the employees and Representatives named on the working group lists exchanged by the parties from time to time. 3.\nAccuracy of Evaluation Material; No Representations or Warranties. Each party acknowledges and agrees (a) that no\nrepresentation or warranty, express or implied, is made by either party, or any of its respective Representatives, as to the\naccuracy or completeness of the Evaluation Material and (b) that the parties shall be entitled to rely only on those\nrepresentations and warranties (if any) that may be made in a definitive written Transaction agreement, signed and\ndelivered by both parties. Unless otherwise provided in the definitive written Transaction agreement, neither the\nFurnishing Party nor any of its Representatives shall have any liability to the Receiving Party or any of its\nRepresentatives on account of the use of any Evaluation Material by the Receiving Party or any of its Representatives or\nany inaccuracy therein or omission therefrom. 4. Return and Destruction of Evaluation Material. At any time after\ntermination of discussions by either party to this Agreement with respect to the Transaction, upon the request of the\nFurnishing Party, the Receiving Party shall promptly (and in no event later than five business days after such request) (a)\nreturn or cause to be returned to the Furnishing Party all copies of all Primary Evaluation Material in the possession or\ncontrol of the Receiving Party or its Representatives which is in a visual or written format and erase or destroy all copies\nof all such Primary Evaluation Material which is stored in electronic format (and certify to the Furnishing Party such\nerasure or destruction), and (b) destroy or cause to be destroyed (and certify such destruction to the Furnishing Party) all\nDerivative Evaluation Material in the possession or control of the Receiving Party or any of its Representatives. Nothing\nherein shall obligate the Receiving Party to provide any Derivative Evaluation Material to the Furnishing Party.\nNotwithstanding the return, destruction or erasure of Evaluation Material hereunder, the Receiving Party and its\nRepresentatives shall continue to be bound by their confidentiality and other obligations hereunder. 5. Non-solicitation of\nEmployees. Each party agrees not to directly or indirectly solicit for employment any management employees or other\ncurrent employees of the other party to whom a party may be directly or indirectly introduced or otherwise have contact\nwith as a result of its consideration of a Transaction for a period of one year after the date of this letter, without the prior\nwritten consent of the other party, provided that neither party will be restricted from making any general solicitation for\nemployees or public advertising of employment opportunities (including through the use of employment agencies) not\nspecifically directed at such persons, and provided further that neither party will be restricted in hiring any such person\nwho responds to any such general or public advertising. - 3 - 6. Standstill. (a) Each party agrees that the Evaluation\nMaterial is being furnished to the other party in consideration of their respective agreement that neither party nor its\nrespective Representatives will, for a period of one year from the date hereof, directly or indirectly, alone or with others,\n(a) negotiate with or provide any information to the other party with respect to, or make any statement or proposal to the\nBoard of Directors of, such other party, to any of its agents or to any stockholder of such other party with respect to, or\nmake any public announcement or proposal or offer whatsoever (including, but not limited to any "solicitation" or\n"proxies" as such terms are defined or used in Regulation 14A of the Securities Exchange Act of 1934) with respect to,\nor otherwise solicit, seek or offer to effect (i) any form of business combination or transaction involving the other party\nor any affiliate thereof, including, without limitation, a merger, tender or exchange offer or liquidation of the other\nparty's assets, (ii) any form of restructuring, recapitalization or similar transaction with respect to the other party or any\naffiliate thereof, (iii) any purchase of any securities or assets, or rights to acquire any securities or assets, of the other\nparty, (iv) any proposal to seek representation on the Board of Directors of the other party or otherwise seek to control or\ninfluence the management, Board of Directors or policies of the other party, (v) any request or proposal to waive,\nterminate or amend the provisions of this letter, or (vi) any proposal or other statement inconsistent with the terms of this\nletter, (b) instigate, encourage or assist any third party to do any of the foregoing, or (c) become a beneficial owner of\nany securities of the other party (except that each party may purchase for investment in market transactions up to 1% of\nthe other party's stock), unless and until such party has received the prior written invitation or approval of a majority of\nthe Board of Directors of the other party to do any of the foregoing. The foregoing shall not apply to either party's\nRepresentatives effecting or recommending transactions in the other party's securities in the ordinary course of their\nbusiness as, without limitation, an investment advisor, broker, dealer in securities, market maker, specialist or block\npositioner. (b) The provisions of the foregoing paragraph shall not apply, and the Company shall be free to engage in any\nof the activities otherwise prohibited by the foregoing paragraph, from the date of public announcement of or public\ndisclosure of commencement of: (i) a tender or exchange offer to acquire 20% or more of any class of then outstanding\nvoting securities of AMS by any person or group of persons (other than the Company or a group including the\nCompany); or (ii) any merger, sale or other business combination transaction (A) pursuant to which any class of\noutstanding voting securities of AMS would be converted into cash or securities of another person or group of persons\nacting as a group (other than the Company or a group including the Company) with the result that 20% or more of any\nclass of then outstanding voting securities of AMS would be owned by persons other than the then current holders of\nsuch class of voting securities of AMS or (B) which would result in all or a substantial portion of the AMS's assets being\nsold to any person or group (other than the Company or a group including the Company), to the earlier of the date of\ncompletion of the said tender offer or business transaction and the date of withdrawal or cancellation of same; provided,\nhowever, that this paragraph 6(b) shall not apply in the event such tender offer or business transaction is commenced\nwith the consent of AMS. - 4 - 7. Remedies. Each party agrees that money damages would not be a sufficient remedy for\nany breach of any provision of this Agreement by the other party or any of its Representatives, and that in addition to all\nother remedies which any party hereto may have, each party shall be entitled to specific performance and injunctive or\nother equitable relief as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies\nfor a breach of this Agreement but shall be in addition to all other remedies available at law or in equity. No failure or\ndelay by any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor\nshall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder. 8. Miscellaneous. (a) No License. Neither party grants a license, by implication or\notherwise, under any of its patents, trade secrets or other intellectual property rights to the Receiving Party. The terms of\nthis Agreement shall not be construed to limit either party's right to independently develop or acquire products without\nuse of the other party's Evaluation Material. Nothing in this Agreement will be construed as a representation or\nagreement that the Receiving Party will not develop, or have developed for it, products, concepts, systems or techniques\nthat are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the\nEvaluation Material, provided that the Receiving Party does not violate any of its obligations under this Agreement in\nconnection with such development. (b) Entire Agreement. This Agreement contains the sole and entire agreement\nbetween the parties with respect to the confidentiality of the Evaluation Material and the confidentiality of their\ndiscussions, negotiations and investigations concerning a Transaction. (c) Amendment and Waiver. This Agreement may\nbe amended, modified or waived only by a separate written instrument duly signed and delivered by or on behalf of both\nparties. (d) Severability. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect\nthe validity or enforceability of any other provision of this Agreement, unless the enforcement of such provision in such\ncircumstances would be inequitable. (e) No Obligation to Complete a Transaction. This Agreement is not intended to,\nand does not, constitute an agreement, or impose any obligation, to consummate a Transaction, to conduct or continue\nnegotiations with respect to a Transaction, or to enter into a definitive Transaction agreement. Neither party shall have\nany rights or obligations of any kind whatsoever with respect to a Transaction by virtue of this Agreement or by virtue of\nany other written or oral expression by the parties' respective Representatives unless and until a definitive Transaction\nagreement between the parties is executed and delivered by both parties. Both parties further acknowledge and agree that\neach party reserves the right, in its sole discretion, to provide or not to provide Evaluation Material to the Receiving\nParty under this Agreement, to reject any and all proposals made by the other party or any of its Representatives with\nregard to a Transaction, and to terminate discussions and negotiations at any time for any reason or no reason. If either\nparty determines not to proceed with negotiations with respect to a Transaction, it will promptly inform the other party of\nsuch determination. (f) Governing Law; Forum. This Agreement shall be governed by, and construed in accordance with,\nthe laws of the Commonwealth of Virginia. Each party hereto consents and submits to the exclusive jurisdiction of the\ncourts of the State of Virginia and the courts of the United States located in the Eastern District of Virginia for the\nadjudication of any action, suit, or proceeding arising out of or otherwise relating to this Agreement. [Remainder of Page\nIntentionally Blank] - 5 - (g) If the foregoing correctly sets forth our agreement with respect to the matters set forth\nherein, please so indicate by signing two copies of this Agreement and returning one signed copy to me, whereupon this\nAgreement shall constitute our binding agreement with respect to the matters set forth herein. Very truly yours,\n \nAMERICAN MANAGEMENT SYSTEMS, INCORPORATED By: David\nW.H. Sharman: Senior Vice President, Corporate Development ACCEPTED AND AGREED TO AS OF THE DATE\nFIRST WRITTEN ABOVE: CACI INTERNATIONAL, INC. By: Name:\n \nTitle: -6-\n \n	EX-99.D. 15 30 y95188exv99wdw1 15.txt FORM OF NON-DISCLOSURE AGREEMENT Exhibit (d)(15)\nCONFIDENTIAL January 7, 2004 Mr. Stephen L. Waechter CACI International, Inc. 1100 North Glebe Road Arlington,\nVA 22201 Mr. Waechter: To facilitate discussions relating to a potential business combination (the "Transaction")\nbetween CACI International, Inc. (together with its subsidiaries, "Company") and American Management Systems,\nIncorporated (together with its subsidiaries, "AMS"), Company expects to make available to AMS and its\nRepresentatives (as defined) nonpublic information concerning Company, including, but not limited to information\nconcerning the businesses, condition (financial and other), operations, and prospects of Company, and AMS expects\nto\nmake available to Company and its Representatives nonpublic information concerning AMS, including, but not limited\nto information concerning the businesses, condition (financial and other), operations, and prospects of AMS. As a\ncondition to such information being made available, each party agrees that all Evaluation Material (as defined) received\nby it or its Representatives from the other party or any of any of its Representatives shall be treated in accordance with\nthis Nondisclosure and Confidentiality Agreement (this "Agreement"). 1. Certain Definitions. As used in this\nAgreement:\n(a)\n"Receiving\nParty"\nmeans\nthe\nparty\nreceiving\nEvaluation\nMaterial;\n(b)\n"Furnishing\nParty"\nmeans\nthe\nparty\nproviding Evaluation Material or causing Evaluation Material to be provided; (c) "Representatives" means the directors,\nofficers, employees, agents or advisors (including, without limitation, attorneys, accountants, investment bankers and\nconsultants) of the specified party; and (d) "Evaluation Material" means all information concerning the Furnishing Party\nor any of its subsidiaries or affiliates, whether in verbal, visual, written, electronic or other form, which is made available\nby\nthe\nFurnishing Party or any of its Representatives to the Receiving Party or any of its Representatives ("Primary\nEvaluation Material"), together, in each case, with all notes, memoranda, summaries, analyses, studies, compilations and\nother writings relating thereto or based thereon prepared by the Receiving Party or any of its Representatives\n("Derivative Evaluation Material"). Notwithstanding the foregoing, the term "Evaluation Material" shall not include\ninformation which the Receiving Party can demonstrate (u) was rightfully in the possession of the Receiving Party prior\nto disclosure by the Furnishing Party; (v) was or is independently developed by the Receiving Party without use of the\nEvaluation Material; (w) is now, or hereafter becomes, available to the public other than as a result of disclosure by the\nReceiving Party prohibited by this Agreement; (x) becomes available to the Receiving Party or any of its Representatives\non a non-confidential basis from a source other than the Furnishing Party or any of its Representatives and such source\nis\nnot, to the knowledge of the Receiving Party following reasonable inquiry, under any obligation to the Furnishing Party\nor any of its Representatives to keep such information confidential (y) is transmitted by or on behalf of the Furnishing\nParty after receiving written notification from the Receiving Party of the termination of discussions relating to the\nTransaction or written instructions from the Receiving Party not to furnish any further Evaluation Material; or (z)\nis\ndisclosed as provided in Paragraph 2(b). 2. Confidentiality and Use of Evaluation Material. (a) Confidentiality\nof\nEvaluation Material. All Evaluation Material (i) shall be used solely for the purpose of evaluating and considering the\nTransaction; (ii) shall be kept strictly confidential by the Receiving Party; and (iii) shall be provided by the Receiving\nParty solely to those of its Representatives to whom disclosure is reasonably deemed to be required to facilitate the\nReceiving Party's evaluation or consideration of the Transaction The parties intend to restrict the dissemination of\nEvaluation\nMaterial to as small a working group as practicable. All Evaluation Material is and shall remain the property\nof the Furnishing Party. Before providing access to Evaluation Material to any Representative, the Receiving Party shall\ninform such Representative of the contents of this Agreement and the confidentiality of the Evaluation Material, and\nshall advise such Representative that, by accepting possession of or access to such information, such Representative is\nagreeing to be bound by this Agreement. Each party shall instruct its Representatives to observe the terms of this\nAgreement and shall be responsible for any breach of this Agreement by any of its Representatives. (b) Compulsory\nDisclosure of Evaluation Material. If the Receiving Party is requested in any judicial or administrative proceeding, or by\nany governmental or regulatory authority, to disclose any Evaluation Material (whether by deposition, interrogatory,\nrequest for documents, subpoena, civil investigative demand or otherwise), the Receiving Party shall give the Furnishing\nParty prompt notice of such request so that the Furnishing Party may seek an appropriate protective order, and, upon\nthe\nFurnishing Party's request and at the Furnishing Party's expense, shall cooperate with the Furnishing Party in seeking\nsuch an order. If the Receiving Party is nonetheless compelled to disclose Evaluation Material, the Receiving Party shall\ndisclose only that portion of the Evaluation Material which the Receiving Party is legally required to disclose and, upon\nthe\nFurnishing\nParty's\nrequest\nand\nat\nthe\nFurnishing\nParty's\nexpense,\nshall\nuse\ncommercially\nreasonable\nefforts\nto\nobtain\nassurances that confidential treatment will be accorded to such Evaluation Material to the extent such assurances are\navailable. Subject to the foregoing conditions and limitations, the Receiving Party may disclose Evaluation Material\nwithout liability hereunder. (c) Disclosure to Tax Authorities. Notwithstanding anything herein to the contrary, except\nwhere such disclosure would be prohibited under U.S. securities laws, any party to this Agreement (and each employee,\nrepresentative or other agent thereof) may disclose to any and all persons, without limitation of any kind, the tax\ntreatment and tax structure of the proposed Transaction and all materials of any kind (including opinions or other tax\nanalyses) that are provided to the party relating to such tax treatment and tax structure. For this purpose, a "tax structure"\nmeans any facts relevant to the U.S. federal income tax treatment of the proposed Transaction and does not include\ninformation relating to the identity of the parties. (d) Other Public Disclosure. Except (i) for such public disclosure as\nmay be necessary, in the good faith judgment of the disclosing party following consultation with outside counsel, for the\ndisclosing party not to be in violation of any applicable law, regulation, order or listing agreement, or (ii) with the prior\nwritten consent of the other party, neither party shall: (A) make any disclosure (and each party shall direct its\nRepresentatives not to make any disclosure) to any person of (1) the fact that discussions, negotiations or investigations\nare taking or have taken place concerning a Transaction, (2) the existence or contents of this Agreement, or the fact that\neither\nparty\nhas requested or received Evaluation Material from the other party, or (3) any of the terms, conditions\nor\nother facts with respect to any proposed Transaction, including the status thereof, or (B) make any public statement\nconcerning the proposed Transaction. If either party proposes to make any disclosure in reliance on clause (i) above, the\ndisclosing party shall, if practicable, provide the other party with the text of the proposed disclosure as far in advance of\nits disclosure as is practicable and shall in good faith consult with and consider the suggestions of the other party\nconcerning the nature and scope of the information it proposes to disclose. 2 - (e) Securities Law Restrictions. Each\nparty acknowledges that the Evaluation Material may contain material nonpublic information concerning the Furnishing\nParty. Each party further acknowledges its awareness of the restrictions imposed by federal and state securities laws on\npersons in possession of material nonpublic information, and agrees that while it is in possession of material nonpublic\ninformation with respect to the other party, it shall not purchase or sell any securities of the other party, or communicate\nsuch information to any third party, in violation of applicable law. Nothing herein shall constitute an admission by either\nparty that any Evaluation Material in fact contains material nonpublic information concerning the Furnishing Party. (f)\nContact with Employees and Representatives. Neither party shall communicate with any employee of the other party\nregarding\nthe\nTransaction\nor\ndisclose\nany\nEvaluation\nMaterial\nto\nany\nemployee\nor\nRepresentative\nof\nthe\nother\nparty,\nother\nthan the employees and Representatives named on the working group lists exchanged by the parties from time to time.\n3.\nAccuracy of Evaluation Material; No Representations or Warranties. Each party acknowledges and agrees (a) that no\nrepresentation or warranty, express or implied, is made by either party, or any of its respective Representatives, as to the\naccuracy or completeness of the Evaluation Material and (b) that the parties shall be entitled to rely only on those\nrepresentations\nand\nwarranties\n(if\nany)\nthat\nmay\nbe\nmade\nin\na\ndefinitive\nwritten\nTransaction\nagreement,\nsigned\nand\ndelivered by both parties. Unless otherwise provided in the definitive written Transaction agreement, neither the\nFurnishing Party nor any of its Representatives shall have any liability to the Receiving Party or any of its\nRepresentatives on account of the use of any Evaluation Material by the Receiving Party or any of its Representatives\nor\nany inaccuracy therein or omission therefrom. 4. Return and Destruction of Evaluation Material. At any time after\ntermination of discussions by either party to this Agreement with respect to the Transaction, upon the request of the\nFurnishing Party, the Receiving Party shall promptly (and in no event later than five business days after such request) (a)\nreturn or cause to be returned to the Furnishing Party all copies of all Primary Evaluation Material in the possession or\ncontrol of the Receiving Party or its Representatives which is in a visual or written format and erase or destroy all copies\nof all such Primary Evaluation Material which is stored in electronic format (and certify to the Furnishing Party such\nerasure or destruction), and (b) destroy or cause to be destroyed (and certify such destruction to the Furnishing Party) all\nDerivative Evaluation Material in the possession or control of the Receiving Party or any of its Representatives Nothing\nherein shall obligate the Receiving Party to provide any Derivative Evaluation Material to the Furnishing Party.\nNotwithstanding the return, destruction or erasure of Evaluation Material hereunder, the Receiving Party and its\nRepresentatives shall continue to be bound by their confidentiality and other obligations hereunder. 5. Non-solicitation of\nEmployees. Each party agrees not to directly or indirectly solicit for employment any management employees or other\ncurrent employees of the other party to whom a party may be directly or indirectly introduced or otherwise have contact\nwith as a result of its consideration of a Transaction for a period of one year after the date of this letter, without the prior\nwritten consent of the other party, provided that neither party will be restricted from making any general\nsolicitation\nfor\nemployees or public advertising of employment opportunities (including through the use of employment agencies)\nnot\nspecifically directed at such persons, and provided further that neither party will be restricted in hiring any such person\nwho responds to any such general or public advertising. - 3 6. Standstill. (a) Each party agrees that the Evaluation\nMaterial is being furnished to the other party in consideration of their respective agreement that neither party nor its\nrespective Representatives will, for a period of one year from the date hereof, directly or indirectly, alone or with others,\n(a) negotiate with or provide any information to the other party with respect to, or make any statement or proposal to the\nBoard of Directors of, such other party, to any of its agents or to any stockholder of such other party with respect to, or\nmake any public announcement or proposal or offer whatsoever (including, but not limited to any "solicitation" or\n"proxies" as such terms are defined or used in Regulation 14A of the Securities Exchange Act of 1934) with respect to,\nor otherwise solicit, seek or offer to effect (i) any form of business combination or transaction involving the other party\nor any affiliate thereof, including, without limitation, a merger, tender or exchange offer or liquidation of the other\nparty's assets, (ii) any form of restructuring, recapitalization or similar transaction with respect to the other party or any\naffiliate\nthereof, (iii) any purchase of any securities or assets, or rights to acquire any securities or assets, of the other\nparty, (iv) any proposal to seek representation on the Board of Directors of the other party or otherwise seek to control or\ninfluence the management, Board of Directors or policies of the other party, (v) any request or proposal to waive,\nterminate or amend the provisions of this letter, or (vi) any proposal or other statement inconsistent with the terms of this\nletter, (b) instigate, encourage or assist any third party to do any of the foregoing, or (c) become a beneficia owner of\nany securities of the other party (except that each party may purchase for investment in market transactions\nup\nto\n1%\nof\nthe other party's stock), unless and until such party has received the prior written invitation or approva of a majority of\nthe Board of Directors of the other party to do any of the foregoing. The foregoing shall not apply to either party's\nRepresentatives effecting or recommending transactions in the other party's securities in the ordinary course of their\nbusiness as, without limitation, an investment advisor, broker, dealer in securities, market maker, specialist or block\npositioner (b) The provisions of the foregoing paragraph shall not apply, and the Company shall be free to engage in any\nof the activities otherwise prohibited by the foregoing paragraph, from the date of public announcement of or public\ndisclosure of commencement of: (i) a tender or exchange offer to acquire 20% or more of any class of then outstanding\nvoting securities of AMS by any person or group of persons (other than the Company or a group including the\nCompany); or (ii) any merger, sale or other business combination transaction (A) pursuant to which any class of\noutstanding voting securities of AMS would be converted into cash or securities of another person or group of persons\nacting as a group (other than the Company or a group including the Company) with the result that 20% or more of any\nclass of then outstanding voting securities of AMS would be owned by persons other than the then current holders of\nsuch class of voting securities of AMS or (B) which would result in all or a substantial portion of the AMS's assets being\nsold to any person or group (other than the Company or a group including the Company), to the earlier of the date of\ncompletion of the said tender offer or business transaction and the date of withdrawal or cancellation of same; provided,\nhowever, that this paragraph 6(b) shall not apply in the event such tender offer or business transaction is commenced\nwith the consent of AMS. 4 7. Remedies. Each party agrees that money damages would not be a sufficient remedy for\nany breach of any provision of this Agreement by the other party or any of its Representatives, and that in addition to all\nother remedies which any party hereto may have, each party shall be entitled to specific performance and injunctive or\nother equitable relief as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies\nfor a breach of this Agreement but shall be in addition to all other remedies available at law or in equity.\nNo\nfailure\nor\ndelay by any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor\nshall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder. 8. Miscellaneous. (a) No License. Neither party grants a license, by implication or\notherwise, under any of its patents, trade secrets or other intellectual property rights to the Receiving Party. The terms\nof\nthis\nAgreement\nshall\nnot\nbe\nconstrued\nto\nlimit\neither\nparty's\nright\nto\nindependently\ndevelop\nor\nacquire\nproducts\nwithout\nuse of the other party's Evaluation Material. Nothing in this Agreement will be construed as a representation or\nagreement that the Receiving Party will not develop, or have developed for it, products, concepts, systems or techniques\nthat are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the\nEvaluation Material, provided that the Receiving Party does not violate any of its obligations under this Agreement in\nconnection with such development. (b) Entire Agreement. This Agreement contains the sole and entire agreement\nbetween the parties with respect to the confidentiality of the Evaluation Material and the confidentiality of their\ndiscussions, negotiations and investigations concerning a Transaction. (c) Amendment and Waiver. This Agreement may\nbe amended, modified or waived only by a separate written instrument duly signed and delivered by or on behalf of both\nparties. (d) Severability. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect\nthe validity or enforceability of any other provision of this Agreement, unless the enforcement of such provision in such\ncircumstances would be inequitable. (e) No Obligation to Complete a Transaction. This Agreement is not intended to,\nand does not, constitute an agreement, or impose any obligation, to consummate a Transaction, to conduct or continue\nnegotiations\nwith\nrespect\nto\na\nTransaction,\nor\nto\nenter\ninto\na\ndefinitive\nTransaction\nagreement.\nNeither\nparty\nshall\nhave\nany rights or obligations of any kind whatsoever with respect to a Transaction by virtue of this Agreement or by virtue of\nany other written or oral expression by the parties' respective Representatives unless and until a definitive Transaction\nagreement between the parties is executed and delivered by both parties. Both parties further acknowledge and agree that\neach party reserves the right, in its sole discretion, to provide or not to provide Evaluation Material to the Receiving\nParty\nunder\nthis\nAgreement,\nto\nreject\nany\nand\nall\nproposals\nmade\nby\nthe\nother\nparty\nor\nany\nof\nits\nRepresentatives\nwith\nregard to a Transaction, and to terminate discussions and negotiations at any time for any reason or no reason. If either\nparty determines not to proceed with negotiations with respect to a Transaction, it will promptly inform the other party of\nsuch determination. (f) Governing Law; Forum. This Agreement shall be governed by, and construed in accordance with,\nthe laws of the Commonwealth of Virginia. Each party hereto consents and submits to the exclusive jurisdiction of the\ncourts of the State of Virginia and the courts of the United States located in the Eastern District of Virginia for the\nadjudication of any action, suit, or proceeding arising out of or otherwise relating to this Agreement. [Remainder of Page\nIntentionally Blank] 5 (g) If the foregoing correctly sets forth our agreement with respect to the matters set forth\nherein, please so indicate by signing two copies of this Agreement and returning one signed copy to me, whereupon this\nAgreement shall constitute our binding agreement with respect to the matters set forth herein. Very truly yours,\nAMERICAN MANAGEMENT SYSTEMS, INCORPORATED By:\nDavid\nW.H. Sharman: Senior Vice President, Corporate Development ACCEPTED AND AGREED TO AS OF THE DATE\nFIRST WRITTEN ABOVE: CACI INTERNATIONAL, INC. By\nName:\nTitle:\n6	EX-99.D.15 30 y95188exv99wdw15.txt FORM OF NON-DISCLOSURE AGREEMENT Exhibit (d)(15)\nCONFIDENTIAL January 7, 2004 Mr. Stephen L. Waechter CACI International, Inc. 1100 North Glebe Road Arlington,\nVA 22201 Mr. Waechter: To facilitate discussions relating to a potential business combination (the "Transaction")\nbetween CACI International, Inc. (together with its subsidiaries, "Company") and American Management Systems,\nIncorporated (together with its subsidiaries, "AMS"), Company expects to make available to AMS and its\nRepresentatives (as defined) nonpublic information concerning Company, including, but not limited to information\nconcerning the businesses, condition (financial and other), operations, and prospects of Company, and AMS expects to\nmake available to Company and its Representatives nonpublic information concerning AMS, including, but not limited\nto information concerning the businesses, condition (financial and other), operations, and prospects of AMS. As a\ncondition to such information being made available, each party agrees that all Evaluation Material (as defined) received\nby it or its Representatives from the other party or any of any of its Representatives shall be treated in accordance with\nthis Nondisclosure and Confidentiality Agreement (this "Agreement"). 1. Certain Definitions. As used in this\nAgreement: (a) "Receiving Party" means the party receiving Evaluation Material; (b) "Furnishing Party" means the party\nproviding Evaluation Material or causing Evaluation Material to be provided; (c) "Representatives" means the directors,\nofficers, employees, agents or advisors (including, without limitation, attorneys, accountants, investment bankers and\nconsultants) of the specified party; and (d) "Evaluation Material" means all information concerning the Furnishing Party\nor any of its subsidiaries or affiliates, whether in verbal, visual, written, electronic or other form, which is made available\nby the Furnishing Party or any of its Representatives to the Receiving Party or any of its Representatives ("Primary\nEvaluation Material"), together, in each case, with all notes, memoranda, summaries, analyses, studies, compilations and\nother writings relating thereto or based thereon prepared by the Receiving Party or any of its Representatives\n("Derivative Evaluation Material"). Notwithstanding the foregoing, the term "Evaluation Material" shall not include\ninformation which the Receiving Party can demonstrate (u) was rightfully in the possession of the Receiving Party prior\nto disclosure by the Furnishing Party; (v) was or is independently developed by the Receiving Party without use of the\nEvaluation Material; (w) is now, or hereafter becomes, available to the public other than as a result of disclosure by the\nReceiving Party prohibited by this Agreement; (x) becomes available to the Receiving Party or any of its Representatives\non a non-confidential basis from a source other than the Furnishing Party or any of its Representatives and such source is\nnot, to the knowledge of the Receiving Party following reasonable inquiry, under any obligation to the Furnishing Party\nor any of its Representatives to keep such information confidential; (y) is transmitted by or on behalf of the Furnishing\nParty after receiving written notification from the Receiving Party of the termination of discussions relating to the\nTransaction or written instructions from the Receiving Party not to furnish any further Evaluation Material; or (z) is\ndisclosed as provided in Paragraph 2(b). 2. Confidentiality and Use of Evaluation Material. (a) Confidentiality of\nEvaluation Material. All Evaluation Material (i) shall be used solely for the purpose of evaluating and considering the\nTransaction; (ii) shall be kept strictly confidential by the Receiving Party; and (iii) shall be provided by the Receiving\nParty solely to those of its Representatives to whom disclosure is reasonably deemed to be required to facilitate the\nReceiving Party's evaluation or consideration of the Transaction. The parties intend to restrict the dissemination of\nEvaluation Material to as small a working group as practicable. All Evaluation Material is and shall remain the property\nof the Furnishing Party. Before providing access to Evaluation Material to any Representative, the Receiving Party shall\ninform such Representative of the contents of this Agreement and the confidentiality of the Evaluation Material, and\nshall advise such Representative that, by accepting possession of or access to such information, such Representative is\nagreeing to be bound by this Agreement. Each party shall instruct its Representatives to observe the terms of this\nAgreement and shall be responsible for any breach of this Agreement by any of its Representatives. (b) Compulsory\nDisclosure of Evaluation Material. If the Receiving Party is requested in any judicial or administrative proceeding, or by\nany governmental or regulatory authority, to disclose any Evaluation Material (whether by deposition, interrogatory,\nrequest for documents, subpoena, civil investigative demand or otherwise), the Receiving Party shall give the Furnishing\nParty prompt notice of such request so that the Furnishing Party may seek an appropriate protective order, and, upon the\nFurnishing Party's request and at the Furnishing Party's expense, shall cooperate with the Furnishing Party in seeking\nsuch an order. If the Receiving Party is nonetheless compelled to disclose Evaluation Material, the Receiving Party shall\ndisclose only that portion of the Evaluation Material which the Receiving Party is legally required to disclose and, upon\nthe Furnishing Party's request and at the Furnishing Party's expense, shall use commercially reasonable efforts to obtain\nassurances that confidential treatment will be accorded to such Evaluation Material to the extent such assurances are\navailable. Subject to the foregoing conditions and limitations, the Receiving Party may disclose Evaluation Material\nwithout liability hereunder. (c) Disclosure to Tax Authorities. Notwithstanding anything herein to the contrary, except\nwhere such disclosure would be prohibited under U.S . securities laws, any party to this Agreement (and each employee,\nrepresentative or other agent thereof) may disclose to any and all persons, without limitation of any kind, the tax\ntreatment and tax structure of the proposed Transaction and all materials of any kind (including opinions or other tax\nanalyses) that are provided to the party relating to such tax treatment and tax structure. For this purpose, a "tax structure"\nmeans any facts relevant to the U.S . federal income tax treatment of the proposed Transaction and does not include\ninformation relating to the identity of the parties. (d) Other Public Disclosure. Except (i) for such public disclosure as\nmay be necessary, in the good faith judgment of the disclosing party following consultation with outside counsel, for the\ndisclosing party not to be in violation of any applicable law, regulation, order or listing agreement, or (ii) with the prior\nwritten consent of the other party, neither party shall: (A) make any disclosure (and each party shall direct its\nRepresentatives not to make any disclosure) to any person of (1) the fact that discussions, negotiations or investigations\nare taking or have taken place concerning a Transaction, (2) the existence or contents of this Agreement, or the fact that\neither party has requested or received Evaluation Material from the other party, or (3) any of the terms, conditions or\nother facts with respect to any proposed Transaction, including the status thereof, or (B) make any public statement\nconcerning the proposed Transaction. If either party proposes to make any disclosure in reliance on clause (i) above, the\ndisclosing party shall, if practicable, provide the other party with the text of the proposed disclosure as far in advance of\nits disclosure as is practicable and shall in good faith consult with and consider the suggestions of the other party\nconcerning the nature and scope of the information it proposes to disclose. - 2 - (e) Securities Law Restrictions. Each\nparty acknowledges that the Evaluation Material may contain material nonpublic information concerning the Furnishing\nParty. Each party further acknowledges its awareness of the restrictions imposed by federal and state securities laws on\npersons in possession of material nonpublic information, and agrees that while it is in possession of material nonpublic\ninformation with respect to the other party, it shall not purchase or sell any securities of the other party, or communicate\nsuch information to any third party, in violation of applicable law. Nothing herein shall constitute an admission by either\nparty that any Evaluation Material in fact contains material nonpublic information concerning the Furnishing Party. (f)\nContact with Employees and Representatives. Neither party shall communicate with any employee of the other party\nregarding the Transaction or disclose any Evaluation Material to any employee or Representative of the other party, other\nthan the employees and Representatives named on the working group lists exchanged by the parties from time to time. 3.\nAccuracy of Evaluation Material; No Representations or Warranties. Each party acknowledges and agrees (a) that no\nrepresentation or warranty, express or implied, is made by either party, or any of its respective Representatives, as to the\naccuracy or completeness of the Evaluation Material and (b) that the parties shall be entitled to rely only on those\nrepresentations and warranties (if any) that may be made in a definitive written Transaction agreement, signed and\ndelivered by both parties. Unless otherwise provided in the definitive written Transaction agreement, neither the\nFurnishing Party nor any of its Representatives shall have any liability to the Receiving Party or any of its\nRepresentatives on account of the use of any Evaluation Material by the Receiving Party or any of its Representatives or\nany inaccuracy therein or omission therefrom. 4. Return and Destruction of Evaluation Material. At any time after\ntermination of discussions by either party to this Agreement with respect to the Transaction, upon the request of the\nFurnishing Party, the Receiving Party shall promptly (and in no event later than five business days after such request) (a)\nreturn or cause to be returned to the Furnishing Party all copies of all Primary Evaluation Material in the possession or\ncontrol of the Receiving Party or its Representatives which is in a visual or written format and erase or destroy all copies\nof all such Primary Evaluation Material which is stored in electronic format (and certify to the Furnishing Party such\nerasure or destruction), and (b) destroy or cause to be destroyed (and certify such destruction to the Furnishing Party) all\nDerivative Evaluation Material in the possession or control of the Receiving Party or any of its Representatives. Nothing\nherein shall obligate the Receiving Party to provide any Derivative Evaluation Material to the Furnishing Party.\nNotwithstanding the return, destruction or erasure of Evaluation Material hereunder, the Receiving Party and its\nRepresentatives shall continue to be bound by their confidentiality and other obligations hereunder. 5. Non-solicitation of\nEmployees. Each party agrees not to directly or indirectly solicit for employment any management employees or other\ncurrent employees of the other party to whom a party may be directly or indirectly introduced or otherwise have contact\nwith as a result of its consideration of a Transaction for a period of one year after the date of this letter, without the prior\nwritten consent of the other party, provided that neither party will be restricted from making any general solicitation for\nemployees or public advertising of employment opportunities (including through the use of employment agencies) not\nspecifically directed at such persons, and provided further that neither party will be restricted in hiring any such person\nwho responds to any such general or public advertising. - 3 - 6. Standstill. (a) Each party agrees that the Evaluation\nMaterial is being furnished to the other party in consideration of their respective agreement that neither party nor its\nrespective Representatives will, for a period of one year from the date hereof, directly or indirectly, alone or with others,\n(a) negotiate with or provide any information to the other party with respect to, or make any statement or proposal to the\nBoard of Directors of, such other party, to any of its agents or to any stockholder of such other party with respect to, or\nmake any public announcement or proposal or offer whatsoever (including, but not limited to any "solicitation" or\n"proxies" as such terms are defined or used in Regulation 14A of the Securities Exchange Act of 1934) with respect to,\nor otherwise solicit, seek or offer to effect (i) any form of business combination or transaction involving the other party\nor any affiliate thereof, including, without limitation, a merger, tender or exchange offer or liquidation of the other\nparty's assets, (ii) any form of restructuring, recapitalization or similar transaction with respect to the other party or any\naffiliate thereof, (iii) any purchase of any securities or assets, or rights to acquire any securities or assets, of the other\nparty, (iv) any proposal to seek representation on the Board of Directors of the other party or otherwise seek to control or\ninfluence the management, Board of Directors or policies of the other party, (v) any request or proposal to waive,\nterminate or amend the provisions of this letter, or (vi) any proposal or other statement inconsistent with the terms of this\nletter, (b) instigate, encourage or assist any third party to do any of the foregoing, or (c) become a beneficial owner of\nany securities of the other party (except that each party may purchase for investment in market transactions up to 1% of\nthe other party's stock), unless and until such party has received the prior written invitation or approval of a majority of\nthe Board of Directors of the other party to do any of the foregoing. The foregoing shall not apply to either party's\nRepresentatives effecting or recommending transactions in the other party's securities in the ordinary course of their\nbusiness as, without limitation, an investment advisor, broker, dealer in securities, market maker, specialist or block\npositioner. (b) The provisions of the foregoing paragraph shall not apply, and the Company shall be free to engage in any\nof the activities otherwise prohibited by the foregoing paragraph, from the date of public announcement of or public\ndisclosure of commencement of: (i) a tender or exchange offer to acquire 20% or more of any class of then outstanding\nvoting securities of AMS by any person or group of persons (other than the Company or a group including the\nCompany); or (ii) any merger, sale or other business combination transaction (A) pursuant to which any class of\noutstanding voting securities of AMS would be converted into cash or securities of another person or group of persons\nacting as a group (other than the Company or a group including the Company) with the result that 20% or more of any\nclass of then outstanding voting securities of AMS would be owned by persons other than the then current holders of\nsuch class of voting securities of AMS or (B) which would result in all or a substantial portion of the AMS's assets being\nsold to any person or group (other than the Company or a group including the Company), to the earlier of the date of\ncompletion of the said tender offer or business transaction and the date of withdrawal or cancellation of same; provided,\nhowever, that this paragraph 6(b) shall not apply in the event such tender offer or business transaction is commenced\nwith the consent of AMS. - 4 - 7. Remedies. Each party agrees that money damages would not be a sufficient remedy for\nany breach of any provision of this Agreement by the other party or any of its Representatives, and that in addition to all\nother remedies which any party hereto may have, each party shall be entitled to specific performance and injunctive or\nother equitable relief as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies\nfor a breach of this Agreement but shall be in addition to all other remedies available at law or in equity. No failure or\ndelay by any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor\nshall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder. 8. Miscellaneous. (a) No License. Neither party grants a license, by implication or\notherwise, under any of its patents, trade secrets or other intellectual property rights to the Receiving Party. The terms of\nthis Agreement shall not be construed to limit either party's right to independently develop or acquire products without\nuse of the other party's Evaluation Material. Nothing in this Agreement will be construed as a representation or\nagreement that the Receiving Party will not develop, or have developed for it, products, concepts, systems or techniques\nthat are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the\nEvaluation Material, provided that the Receiving Party does not violate any of its obligations under this Agreement in\nconnection with such development. (b) Entire Agreement. This Agreement contains the sole and entire agreement\nbetween the parties with respect to the confidentiality of the Evaluation Material and the confidentiality of their\ndiscussions, negotiations and investigations concerning a Transaction. (c) Amendment and Waiver. This Agreement may\nbe amended, modified or waived only by a separate written instrument duly signed and delivered by or on behalf of both\nparties. (d) Severability. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect\nthe validity or enforceability of any other provision of this Agreement, unless the enforcement of such provision in such\ncircumstances would be inequitable. (e) No Obligation to Complete a Transaction. This Agreement is not intended to,\nand does not, constitute an agreement, or impose any obligation, to consummate a Transaction, to conduct or continue\nnegotiations with respect to a Transaction, or to enter into a definitive Transaction agreement. Neither party shall have\nany rights or obligations of any kind whatsoever with respect to a Transaction by virtue of this Agreement or by virtue of\nany other written or oral expression by the parties' respective Representatives unless and until a definitive Transaction\nagreement between the parties is executed and delivered by both parties. Both parties further acknowledge and agree that\neach party reserves the right, in its sole discretion, to provide or not to provide Evaluation Material to the Receiving\nParty under this Agreement, to reject any and all proposals made by the other party or any of its Representatives with\nregard to a Transaction, and to terminate discussions and negotiations at any time for any reason or no reason. If either\nparty determines not to proceed with negotiations with respect to a Transaction, it will promptly inform the other party of\nsuch determination. (f) Governing Law; Forum. This Agreement shall be governed by, and construed in accordance with,\nthe laws of the Commonwealth of Virginia. Each party hereto consents and submits to the exclusive jurisdiction of the\ncourts of the State of Virginia and the courts of the United States located in the Eastern District of Virginia for the\nadjudication of any action, suit, or proceeding arising out of or otherwise relating to this Agreement. [Remainder of Page\nIntentionally Blank] - 5 - (g) If the foregoing correctly sets forth our agreement with respect to the matters set forth\nherein, please so indicate by signing two copies of this Agreement and returning one signed copy to me, whereupon this\nAgreement shall constitute our binding agreement with respect to the matters set forth herein. Very truly yours,\nAMERICAN MANAGEMENT SYSTEMS, INCORPORATED By:__________________________________ David\nW.H. Sharman: Senior Vice President, Corporate Development ACCEPTED AND AGREED TO AS OF THE DATE\nFIRST WRITTEN ABOVE: CACI INTERNATIONAL, INC. By: ________________________________ Name:\n______________________________\nTitle: _______________________________ - 6 -
7c8b01ccbf3536fad1cb037fbafc25ae.pdf	effective_date jurisdiction party term	EX-99.D.2 8 d485523dex99d2.htm EX-99 .D.2\nExhibit (d)(2)\nLOGO\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT, entered into as of this 20th day of January, 2017 by and between Ocera\nTherapeutics, Inc., a Delaware corporation, with its principal place of business at 525 University Avenue, Suite 610, Palo Alto, California 94301\n(“OCERA”), and Mallinckrodt LLC, a Delaware limited liability company, with its principal place of business at 675 McDonnell Blvd.,\nHazelwood, MO 63042 (“COMPANY”), is made with reference to the following facts:\nA. OCERA and COMPANY desire to discuss and explore a possible transaction pursuant to Ocera’s OCR-002 (the “Purpose”).\nB. In order to enable OCERA and COMPANY to discuss and explore the Purpose, each party hereto has agreed to disclose to the\nother party certain information which the parties deem to be of a confidential, proprietary and/or trade secret nature.\nC. Each party hereto is willing to disclose such confidential, proprietary and trade secret information to the other party solely in order\nto enable it to discuss and explore the Purpose and for no other purpose, and each party hereto agrees that it shall maintain the confidentiality of\nthe information of the other party in accordance with the terms and conditions of this Agreement.\nNOW, THEREFORE, in consideration of the foregoing, OCERA and COMPANY agree as follows:\n1. Preservation of Confidentiality. OCERA and COMPANY each agrees that it shall regard, maintain and preserve the secrecy and\nconfidentiality of any and all information and data, whether in oral or written form, including but not limited to, clinical study synopses, clinical\nstudy plans, costs, products, processes, methods, concepts, ideas, programs, formulae, apparati, chemicals, organisms, molecules, prototypes,\ntechniques, know-how, marketing plans, business plans, data, strategies, forecasts, customer or supplier lists or technical requirements of\ncustomers, or other trade secrets (collectively referred to herein as the “Proprietary Information”) of the other party which may be disclosed to or\nobtained by it pursuant to this Agreement. Each party hereto shall take reasonable and necessary measures to preserve the secrecy and\nconfidentiality and avoid the unauthorized use or disclosure of the other party’s Proprietary Information, including, without limitation, taking\nsuch measures of protection as it takes to protect its own confidential, proprietary or trade secret information. Each party hereto shall limit access\nto the other party’s Proprietary Information to those of its employees, agents, advisors, and consultants, who have a reasonable need for access to\nsuch information in connection with the discussion and exploration of the Purpose and who shall be subject to the non-disclosure covenants\ncontained herein.\nOcera Therapeutics, Inc.\nCorporate Headquarters: 525 University Ave, Suite 610, Palo Alto, CA 94301 650-475 -0158\nRTP Office: 5001 S. Miami Blvd, Suite 300, Durham NC 27703 919-474 -0020\nwww.ocerainc.com\nNASDAQ: OCRX\n2. Covenant Not to Use or Disclose. OCERA and COMPANY each agrees that it will not, at any time, without the prior written consent of\nthe other party, use or disclose the other party’s Proprietary Information for any reason or in any manner whatsoever except as may be necessary\nfor the discussion and exploration of the Purpose.\n3. Covenant Not to Reproduce. Except as may be necessary for the discussion and exploration of the Purpose, OCERA and COMPANY\neach agrees that it will make no copies, photocopies, facsimiles, or other reproductions of any documents, drawings, electronic data or the like\ncontaining the other party’s Proprietary Information. Upon conclusion or termination of the discussions between the parties regarding the\nPurpose, or forthwith upon the request of the other party, OCERA and COMPANY shall promptly destroy or return to the other party all such\ndocuments, drawings, electronic data or reproductions thereof which may have come into its possession. Notwithstanding the foregoing, OCERA\nand COMPANY may each retain one (1) copy of such information in their confidential files solely for record keeping purposes to ensure\ncompliance with this Agreement, with such copy remaining subject to the confidentiality obligations of this Agreement.\n4. Proprietary Rights. OCERA and COMPANY each acknowledges that all property rights in the other party’s Proprietary Information are\nowned by the other party, and that none of such rights are owned by the party to which such Proprietary Information is disclosed. Each of the\nparties hereto further acknowledges that the other party has not granted and does not grant in this Agreement any license to the other party under\nany patent, copyright, trade secret or other proprietary right to use or reproduce any Proprietary Information of such party other than for the\nconduct of the Purpose.\n5. Exceptions. The obligations undertaken by OCERA and COMPANY hereunder shall not apply to any portion of the Proprietary\nInformation disclosed hereunder which:\na. was known to the non-disclosing party prior to the disclosure of such Proprietary Information by the disclosing party;\nb. is independently developed by the receiving party without the use of, access to, or reference to the disclosing party’s Proprietary\nInformation;\nc. is, or shall become, other than by a breach of this Agreement by the non-disclosing party, generally available to the public;\nd. shall, by lawful means, be made available to the non-disclosing party by a third party having a right to disclose it, other than a third\nparty introduced to the non-disclosing party by the disclosing party in connection with the Purpose; or\ne. is required by law or made pursuant to an order from a court or government agency.\nOcera Therapeutics, Inc.\nCorporate Headquarters: 525 University Ave, Suite 610, Palo Alto, CA 94301 650-475 -0158\nRTP Office: 5001 S. Miami Blvd, Suite 300, Durham NC 27703 919-474 -0020\nwww.ocerainc.com\nNASDAQ: OCRX\nIn claiming the benefit of any of the exceptions set forth in this Paragraph 5, the non-disclosing party shall have the burden of establishing\nthat any such portion of the Proprietary Information is subject to such exception.\n6. Term. This Agreement shall remain in full force and effect for a period of five (5) years from the date hereof or until such time as all of\nthe Proprietary Information becomes subject to any of the exceptions set forth in Paragraph 5 hereof.\n7. Publicity. OCERA and COMPANY hereby agree not to disclose their participation in the discussion and exploration of the Purpose, the\nexistence, terms or conditions of this Agreement, or the fact that the discussions are being held between the parties.\n8. Equitable Relief. OCERA and COMPANY acknowledge that any such breach of this Agreement could cause the other party irreparable\nharm. Accordingly, each party agrees that in the event of any breach or threatened breach of this Agreement, in addition to other remedies at law\nor in equity it may have, the party alleging a breach or threatened breach shall be entitled, without the requirement of posting a bond or other\nsecurities, to seek equitable relief, including injunctive relief and specific performance.\n9. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other\nprovision hereof.\n10. Successors and Assigns. Neither party may assign this Agreement, or the rights and obligations hereunder, without the prior written\nconsent of the other party; provided, that a party may assign this Agreement without such consent to an affiliate of such party and/or in\nconnection with the transfer or sale of all or substantially all of the business of the assigning party to which this Agreement relates, whether by\nmerger, sale of stock, sale of assets or otherwise. No assignment shall relieve either party of the performance of any accrued obligation that such\nparty may then have under this Agreement. This Agreement shall inure to the benefit of and be binding upon each party signatory hereto, its\nsuccessors and permitted assigns, subsidiaries and affiliates.\n11. Governing Law. This Agreement shall be governed by, interpreted, construed and enforced in accordance with the laws of the State of\nNew York, without regard to its conflict of laws provisions within.\n12. Entire Agreement. This Agreement constitutes the entire agreement of the parties concerning the matters discussed herein and\nsupersedes and replaces all prior agreements, understandings, writings and discussions between the parties, with respect to the subject matter of\nthis Agreement. This Agreement may be amended only by a written instrument executed by authorized representatives of the parties. This\nAgreement shall not create any obligation for either party to enter into any agreement or relationship with the other. Either party may end\ndiscussions of a possible relationship at any time and for any or no reason and each party reserves the right to disclose its own confidential\ninformation to any third party at any time. This Agreement may be executed in one or more counterpart copies, each of which shall be deemed an\noriginal and all of which shall together be deemed to constitute one Agreement.\nOcera Therapeutics, Inc.\nCorporate Headquarters: 525 University Ave, Suite 610, Palo Alto, CA 94301 650-475 -0158\nRTP Office: 5001 S. Miami Blvd, Suite 300, Durham NC 27703 919-474 -0020\nwww.ocerainc.com\nNASDAQ: OCRX\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nOCERA THERAPEUTICS, INC.\nMALLINCKRODT LLC\n/s/ Linda Grais\n/s/ Joshua Schafer\nSignature\nSignature\nLinda Grais\nJoshua Schafer\nPrinted Name\nPrinted Name\nCEO\nVice President, BD&L\nTitle\nTitle\nOcera Therapeutics, Inc.\nCorporate Headquarters: 525 University Ave, Suite 610, Palo Alto, CA 94301 650-475 -0158\nRTP Office: 5001 S. Miami Blvd, Suite 300, Durham NC 27703 919-474 -0020\nwww.ocerainc.com\nNASDAQ: OCRX	EX-99.D.2 8 d485523dex99d2.htm EX-99.D.2\nExhibit (d)(2)\n».LOGO\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT, entered into as of this 20th day of January, 2017 by and between Ocera\nTherapeutics, Inc., a Delaware corporation, with its principal place of business at 525 University Avenue, Suite 610, Palo Alto, California 94301\n(“OCERA”), and Mallinckrodt LLC, a Delaware limited liability company, with its principal place of business at 675 McDonnell Blvd.,\nHazelwood, MO 63042 (“COMPANY™), is made with reference to the following facts:\nA. OCERA and COMPANY desire to discuss and explore a possible transaction pursuant to Ocera’s OCR-002 (the “Purpose™).\nB. In order to enable OCERA and COMPANY to discuss and explore the Purpose, each party hereto has agreed to disclose to the\nother party certain information which the parties deem to be of a confidential, proprietary and/or trade secret nature.\nC. Each party hereto is willing to disclose such confidential, proprietary and trade secret information to the other party solely in order\nto enable it to discuss and explore the Purpose and for no other purpose, and each party hereto agrees that it shall maintain the confidentiality of\nthe information of the other party in accordance with the terms and conditions of this Agreement.\nNOW, THEREFORE, in consideration of the foregoing, OCERA and COMPANY agree as follows:\n1. Preservation of Confidentiality. OCERA and COMPANY each agrees that it shall regard, maintain and preserve the secrecy and\nconfidentiality of any and all information and data, whether in oral or written form, including but not limited to, clinical study synopses, clinical\nstudy plans, costs, products, processes, methods, concepts, ideas, programs, formulae, apparati, chemicals, organisms, molecules, prototypes,\ntechniques, know-how, marketing plans, business plans, data, strategies, forecasts, customer or supplier lists or technical requirements of\ncustomers, or other trade secrets (collectively referred to herein as the “Proprietary Information”) of the other party which may be disclosed to or\nobtained by it pursuant to this Agreement. Each party hereto shall take reasonable and necessary measures to preserve the secrecy and\nconfidentiality and avoid the unauthorized use or disclosure of the other party’s Proprietary Information, including, without limitation, taking\nsuch measures of protection as it takes to protect its own confidential, proprietary or trade secret information. Each party hereto shall limit access\nto the other party’s Proprietary Information to those of its employees, agents, advisors, and consultants, who have a reasonable need for access to\nsuch information in connection with the discussion and exploration of the Purpose and who shall be subject to the non-disclosure covenants\ncontained herein.\nOcera Therapeutics, Inc. www.ocerainc.com\nCorporate Headquarters: 525 University Ave, Suite 610, Palo Alto, CA 94301 650-475-0158 NASDAQ: OCRX\nRTP Office: 5001 S. Miami Blvd, Suite 300, Durham NC 27703 919-474-0020\n2. Covenant Not to Use or Disclose. OCERA and COMPANY each agrees that it will not, at any time, without the prior written consent of\nthe other party, use or disclose the other party’s Proprietary Information for any reason or in any manner whatsoever except as may be necessary\nfor the discussion and exploration of the Purpose.\n3. Covenant Not to Reproduce. Except as may be necessary for the discussion and exploration of the Purpose, OCERA and COMPANY\neach agrees that it will make no copies, photocopies, facsimiles, or other reproductions of any documents, drawings, electronic data or the like\ncontaining the other party’s Proprietary Information. Upon conclusion or termination of the discussions between the parties regarding the\nPurpose, or forthwith upon the request of the other party, OCERA and COMPANY shall promptly destroy or return to the other party all such\ndocuments, drawings, electronic data or reproductions thereof which may have come into its possession. Notwithstanding the foregoing, OCERA\nand COMPANY may each retain one (1) copy of such information in their confidential files solely for record keeping purposes to ensure\ncompliance with this Agreement, with such copy remaining subject to the confidentiality obligations of this Agreement.\n \n4. Proprietary Rights. OCERA and COMPANY each acknowledges that all property rights in the other party’s Proprietary Information are\nowned by the other party, and that none of such rights are owned by the party to which such Proprietary Information is disclosed. Each of the\nparties hereto further acknowledges that the other party has not granted and does not grant in this Agreement any license to the other party under\nany patent, copyright, trade secret or other proprietary right to use or reproduce any Proprietary Information of such party other than for the\nconduct of the Purpose.\n5. Exceptions. The obligations undertaken by OCERA and COMPANY hereunder shall not apply to any portion of the Proprietary\nInformation disclosed hereunder which:\na. was known to the non-disclosing party prior to the disclosure of such Proprietary Information by the disclosing party;\nb. is independently developed by the receiving party without the use of, access to, or reference to the disclosing party’s Proprietary\nInformation;\nc. is, or shall become, other than by a breach of this Agreement by the non-disclosing party, generally available to the public;\nd. shall, by lawful means, be made available to the non-disclosing party by a third party having a right to disclose it, other than a third\nparty introduced to the non-disclosing party by the disclosing party in connection with the Purpose; or\ne. is required by law or made pursuant to an order from a court or government agency.\nOcera Therapeutics, Inc. www.ocerainc.com\nCorporate Headquarters: 525 University Ave, Suite 610, Palo Alto, CA 94301 650-475-0158 NASDAQ: OCRX\nRTP Office: 5001 S. Miami Blvd, Suite 300, Durham NC 27703 919-474-0020\nIn claiming the benefit of any of the exceptions set forth in this Paragraph 5, the non-disclosing party shall have the burden of establishing\nthat any such portion of the Proprietary Information is subject to such exception.\n6. Term. This Agreement shall remain in full force and effect for a period of five (5) years from the date hereof or until such time as all of\nthe Proprietary Information becomes subject to any of the exceptions set forth in Paragraph 5 hereof.\n7. Publicity. OCERA and COMPANY hereby agree not to disclose their participation in the discussion and exploration of the Purpose, the\nexistence, terms or conditions of this Agreement, or the fact that the discussions are being held between the parties.\n8. Equitable Relief. OCERA and COMPANY acknowledge that any such breach of this Agreement could cause the other party irreparable\nharm. Accordingly, each party agrees that in the event of any breach or threatened breach of this Agreement, in addition to other remedies at law\nor in equity it may have, the party alleging a breach or threatened breach shall be entitled, without the requirement of posting a bond or other\nsecurities, to seek equitable relief, including injunctive relief and specific performance.\n9. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other\nprovision hereof.\n10. Successors and Assigns. Neither party may assign this Agreement, or the rights and obligations hereunder, without the prior written\nconsent of the other party; provided, that a party may assign this Agreement without such consent to an affiliate of such party and/or in\nconnection with the transfer or sale of all or substantially all of the business of the assigning party to which this Agreement relates, whether by\nmerger, sale of stock, sale of assets or otherwise. No assignment shall relieve either party of the performance of any accrued obligation that such\nparty may then have under this Agreement. This Agreement shall inure to the benefit of and be binding upon each party signatory hereto, its\nsuccessors and permitted assigns, subsidiaries and affiliates.\n11. Governing Law. This Agreement shall be governed by, interpreted, construed and enforced in accordance with the laws of the State of\nNew York, without regard to its conflict of laws provisions within.\n12. Entire Agreement. This Agreement constitutes the entire agreement of the parties concerning the matters discussed herein and\nsupersedes and replaces all prior agreements, understandings, writings and discussions between the parties, with respect to the subject matter of\nthis Agreement. This Agreement may be amended only by a written instrument executed by authorized representatives of the parties. This\nAgreement shall not create any obligation for either party to enter into any agreement or relationship with the other. Either party may end\ndiscussions of a possible relationship at any time and for any or no reason and each party reserves the right to disclose its own confidential\ninformation to any third party at any time. This Agreement may be executed in one or more counterpart copies, each of which shall be deemed an\noriginal and all of which shall together be deemed to constitute one Agreement.\nOcera Therapeutics, Inc. www.ocerainc.com\nCorporate Headquarters: 525 University Ave, Suite 610, Palo Alto, CA 94301 650-475-0158 NASDAQ: OCRX\nRTP Office: 5001 S. Miami Blvd, Suite 300, Durham NC 27703 919-474-0020\nIN WITNESS WHEREQF, the parties hereto have executed this Agreement as of the day and year first above written.\nOCERA THERAPEUTICS, INC. MALLINCKRODT LLC\n/s/ Linda Grais /s/ Joshua Schafer\nSignature Signature\nLinda Grais Joshua Schafer\nPrinted Name Printed Name\nCEO Vice President, BD&L\nTitle Title\nOcera Therapeutics, Inc. www.ocerainc.com\nCorporate Headquarters: 525 University Ave, Suite 610, Palo Alto, CA 94301 650-475-0158 NASDAQ: OCRX\nRTP Office: 5001 S. Miami Blvd, Suite 300, Durham NC 27703 919-474-0020	EX-99.D.2 8 d485523dex99d2.htm EX-99.D.2\nExhibit (d)(2)\nLOGO\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT, entered into as of this 20th day of January, 2017 by and between Ocera\nTherapeutics, Inc., a Delaware corporation, with its principal place of business at 525 University Avenue, Suite 610, Palo Alto, California 94301\n("OCERA"), and Mallinckrodt LLC, a Delaware limited liability company, with its principal place of business at 675 McDonnell Blvd.,\nHazelwood, MO 63042 ("COMPANY"), is made with reference to the following facts:\nA. OCERA and COMPANY desire to discuss and explore a possible transaction pursuant to Ocera's OCR-002 (the "Purpose").\nB. In order to enable OCERA and COMPANY to discuss and explore the Purpose, each party hereto has agreed to disclose to the\nother party certain information which the parties deem to be of a confidential, proprietary and/or trade secret nature.\nC. Each party hereto is willing to disclose such confidential, proprietary and trade secret information to the other party solely in order\nto\nenable it to discuss and explore the Purpose and for no other purpose, and each party hereto agrees that it shall maintain the confidentiality of\nthe information of the other party in accordance with the terms and conditions of this Agreement.\nNOW, THEREFORE, in consideration of the foregoing, OCERA and COMPANY agree as follows:\n1. Preservation of Confidentiality. OCERA and COMPANY each agrees that it shall regard, maintain and preserve the secrecy and\nconfidentiality of any and all information and data, whether in oral or written form, including but not limited to, clinical study synopses, clinical\nstudy plans, costs, products, processes, methods, concepts, ideas, programs, formulae, apparati, chemicals, organisms, molecules, prototypes,\ntechniques, know-how, marketing plans, business plans, data, strategies, forecasts, customer or supplier lists or technical requirements of\ncustomers, or other trade secrets (collectively referred to herein as the "Proprietary Information") of the other party which may be disclosed to\nor\nobtained by it pursuant to this Agreement. Each party hereto shall take reasonable and necessary measures to preserve the secrecy and\nconfidentiality and avoid the unauthorized use or disclosure of the other party's Proprietary Information, including, without limitation, taking\nsuch measures of protection as it takes to protect its own confidential, proprietary or trade secret information. Each party hereto shall limit access\nto the other party's Proprietary Information to those of its employees, agents, advisors, and consultants, who have a reasonable need for access to\nsuch information in connection with the discussion and exploration of the Purpose and who shall be subject to the non-disclosure covenants\ncontained herein.\nOcera Therapeutics, Inc.\nwww.ocerainc.com\nCorporate Headquarters: 525 University Ave, Suite 610, Palo Alto, CA 94301 650-475-0158\nNASDAQ: OCRX\nRTP Office: 5001 S. Miami Blvd, Suite 300, Durham NC 27703 919-474-0020\n2. Covenant Not to Use or Disclose. OCERA and COMPANY each agrees that it will not, at any time, without the prior written consent of\nthe other party, use or disclose the other party's Proprietary Information for any reason or in any manner whatsoever except as may be necessary\nfor the discussion and exploration of the Purpose.\n3. Covenant Not to Reproduce. Except as may be necessary for the discussion and exploration of the Purpose, OCERA and COMPANY\neach agrees that it will make no copies, photocopies, facsimiles, or other reproductions of any documents, drawings, electronic data or the like\ncontaining the other party's Proprietary Information. Upon conclusion or termination of the discussions between the parties regarding the\nPurpose, or forthwith upon the request of the other party, OCERA and COMPANY shall promptly destroy or return to the other party all such\ndocuments, drawings, electronic data or reproductions thereof which may have come into its possession. Notwithstanding the foregoing, OCERA\nand COMPANY may each retain one (1) copy of such information in their confidential files solely for record keeping purposes to ensure\ncompliance with this Agreement, with such copy remaining subject to the confidentiality obligations of this Agreement.\n4. Proprietary. Rights. OCERA and COMPANY each acknowledges that all property rights in the other party's Proprietary Information are\nowned by the other party, and that none of such rights are owned by the party to which such Proprietary Information is disclosed. Each of the\nparties hereto further acknowledges that the other party has not granted and does not grant in this Agreement any license to the other party under\nany patent, copyright, trade secret or other proprietary right to use or reproduce any Proprietary Information of such party other than for the\nconduct of the Purpose.\n5. Exceptions. The obligations undertaken by OCERA and COMPANY hereunder shall not apply to any portion of the Proprietary\nInformation disclosed hereunder which:\na. was known to the non-disclosing party prior to the disclosure of such Proprietary Information by the disclosing party;\nb. is independently developed by the receiving party without the use of, access to, or reference to the disclosing party's Proprietary\nInformation;\nC. is, or shall become, other than by a breach of this Agreement by the non-disclosing party, generally available to the public;\nd. shall, by lawful means, be made available to the non-disclosing party by a third party having a right to disclose it, other than a third\nparty introduced to the non-disclosing party by the disclosing party in connection with the Purpose; or\ne. is required by law or made pursuant to an order from a court or government agency.\nOcera Therapeutics, Inc.\nwww.ocerainc.com\nCorporate Headquarters: 525 University Ave, Suite 610, Palo Alto, CA 94301 650-475-0158\nNASDAQ: OCRX\nRTP Office: 5001 S. Miami Blvd, Suite 300, Durham NC 27703 919-474-0020\nIn claiming the benefit of any of the exceptions set forth in this Paragraph 5, the non-disclosing party shall have the burden of establishing\nthat any such portion of the Proprietary Information is subject to such exception.\n6. Term. This Agreement shall remain in full force and effect for a period of five (5) years from the date hereof or until such time as all of\nthe Proprietary Information becomes subject to any of the exceptions set forth in Paragraph 5 hereof.\n7. Publicity.. OCERA and COMPANY hereby agree not to disclose their participation in the discussion and exploration of the Purpose, the\nexistence, terms or conditions of this Agreement, or the fact that the discussions are being held between the parties.\n8. Equitable Relief. OCERA and COMPANY acknowledge that any such breach of this Agreement could cause the other party irreparable\nharm. Accordingly, each party agrees that in the event of any breach or threatened breach of this Agreement, in addition to other remedies at law\nor\nin equity it may have, the party alleging a breach or threatened breach shall be entitled, without the requirement of posting a bond or other\nsecurities, to seek equitable relief, including injunctive relief and specific performance.\n9. Severability.. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other\nprovision hereof.\n10. Successors and Assigns. Neither party may assign this Agreement, or the rights and obligations hereunder, without the prior written\nconsent of the other party; provided, that a party may assign this Agreement without such consent to an affiliate of such party and/or in\nconnection with the transfer or sale of all or substantially all of the business of the assigning party to which this Agreement relates, whether\nby\nmerger, sale of stock, sale of assets or otherwise. No assignment shall relieve either party of the performance of any accrued obligation that such\nparty may then have under this Agreement. This Agreement shall inure to the benefit of and be binding upon each party signatory hereto,\nits\nsuccessors and permitted assigns, subsidiaries and affiliates.\n11. Governing Law. This Agreement shall be governed by, interpreted, construed and enforced in accordance with the laws of the State of\nNew York, without regard to its conflict of laws provisions within.\n12. Entire Agreement. This Agreement constitutes the entire agreement of the parties concerning the matters discussed herein and\nsupersedes and replaces all prior agreements, understandings, writings and discussions between the parties, with respect to the subject matter\nof\nthis Agreement. This Agreement may be amended only by a written instrument executed by authorized representatives of the parties. This\nAgreement shall not create any obligation for either party to enter into any agreement or relationship with the other. Either party may end\ndiscussions of a possible relationship at any time and for any or no reason and each party reserves the right to disclose its own confidential\ninformation to any third party at any time. This Agreement may be executed in one or more counterpart copies, each of which shall be deemed\nan\noriginal and all of which shall together be deemed to constitute one Agreement.\nOcera Therapeutics, Inc.\nwww.ocerainc.com\nCorporate Headquarters: 525 University Ave, Suite 610, Palo Alto, CA 94301 650-475-0158\nNASDAQ: OCRX\nRTP Office: 5001 S. Miami Blvd, Suite 300, Durham NC 27703 919-474-0020\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nOCERA THERAPEUTICS, INC.\nMALLINCKRODT LLC\n/s/ Linda Grais\n/s/ Joshua Schafer\nSignature\nSignature\nLinda Grais\nJoshua Schafer\nPrinted Name\nPrinted Name\nCEO\nVice President, BD&L\nTitle\nTitle\nOcera Therapeutics, Inc.\nwww.ocerainc.com\nCorporate Headquarters: 525 University Ave, Suite 610, Palo Alto, CA 94301 650-475-0158\nNASDAQ: OCRX\nRTP Office: 5001 S. Miami Blvd, Suite 300, Durham NC 27703 919-474-0020	EX-99.D.2 8 d485523dex99d2.htm EX-99 .D.2\nExhibit (d)(2)\nLOGO\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT, entered into as of this 20th day of January, 2017 by and between Ocera\nTherapeutics, Inc., a Delaware corporation, with its principal place of business at 525 University Avenue, Suite 610, Palo Alto, California 94301\n(“OCERA”), and Mallinckrodt LLC, a Delaware limited liability company, with its principal place of business at 675 McDonnell Blvd.,\nHazelwood, MO 63042 (“COMPANY”), is made with reference to the following facts:\nA. OCERA and COMPANY desire to discuss and explore a possible transaction pursuant to Ocera’s OCR-002 (the “Purpose”).\nB. In order to enable OCERA and COMPANY to discuss and explore the Purpose, each party hereto has agreed to disclose to the\nother party certain information which the parties deem to be of a confidential, proprietary and/or trade secret nature.\nC. Each party hereto is willing to disclose such confidential, proprietary and trade secret information to the other party solely in order\nto enable it to discuss and explore the Purpose and for no other purpose, and each party hereto agrees that it shall maintain the confidentiality of\nthe information of the other party in accordance with the terms and conditions of this Agreement.\nNOW, THEREFORE, in consideration of the foregoing, OCERA and COMPANY agree as follows:\n1. Preservation of Confidentiality. OCERA and COMPANY each agrees that it shall regard, maintain and preserve the secrecy and\nconfidentiality of any and all information and data, whether in oral or written form, including but not limited to, clinical study synopses, clinical\nstudy plans, costs, products, processes, methods, concepts, ideas, programs, formulae, apparati, chemicals, organisms, molecules, prototypes,\ntechniques, know-how, marketing plans, business plans, data, strategies, forecasts, customer or supplier lists or technical requirements of\ncustomers, or other trade secrets (collectively referred to herein as the “Proprietary Information”) of the other party which may be disclosed to or\nobtained by it pursuant to this Agreement. Each party hereto shall take reasonable and necessary measures to preserve the secrecy and\nconfidentiality and avoid the unauthorized use or disclosure of the other party’s Proprietary Information, including, without limitation, taking\nsuch measures of protection as it takes to protect its own confidential, proprietary or trade secret information. Each party hereto shall limit access\nto the other party’s Proprietary Information to those of its employees, agents, advisors, and consultants, who have a reasonable need for access to\nsuch information in connection with the discussion and exploration of the Purpose and who shall be subject to the non-disclosure covenants\ncontained herein.\nOcera Therapeutics, Inc.\nCorporate Headquarters: 525 University Ave, Suite 610, Palo Alto, CA 94301 650-475 -0158\nRTP Office: 5001 S. Miami Blvd, Suite 300, Durham NC 27703 919-474 -0020\nwww.ocerainc.com\nNASDAQ: OCRX\n2. Covenant Not to Use or Disclose. OCERA and COMPANY each agrees that it will not, at any time, without the prior written consent of\nthe other party, use or disclose the other party’s Proprietary Information for any reason or in any manner whatsoever except as may be necessary\nfor the discussion and exploration of the Purpose.\n3. Covenant Not to Reproduce. Except as may be necessary for the discussion and exploration of the Purpose, OCERA and COMPANY\neach agrees that it will make no copies, photocopies, facsimiles, or other reproductions of any documents, drawings, electronic data or the like\ncontaining the other party’s Proprietary Information. Upon conclusion or termination of the discussions between the parties regarding the\nPurpose, or forthwith upon the request of the other party, OCERA and COMPANY shall promptly destroy or return to the other party all such\ndocuments, drawings, electronic data or reproductions thereof which may have come into its possession. Notwithstanding the foregoing, OCERA\nand COMPANY may each retain one (1) copy of such information in their confidential files solely for record keeping purposes to ensure\ncompliance with this Agreement, with such copy remaining subject to the confidentiality obligations of this Agreement.\n4. Proprietary Rights. OCERA and COMPANY each acknowledges that all property rights in the other party’s Proprietary Information are\nowned by the other party, and that none of such rights are owned by the party to which such Proprietary Information is disclosed. Each of the\nparties hereto further acknowledges that the other party has not granted and does not grant in this Agreement any license to the other party under\nany patent, copyright, trade secret or other proprietary right to use or reproduce any Proprietary Information of such party other than for the\nconduct of the Purpose.\n5. Exceptions. The obligations undertaken by OCERA and COMPANY hereunder shall not apply to any portion of the Proprietary\nInformation disclosed hereunder which:\na. was known to the non-disclosing party prior to the disclosure of such Proprietary Information by the disclosing party;\nb. is independently developed by the receiving party without the use of, access to, or reference to the disclosing party’s Proprietary\nInformation;\nc. is, or shall become, other than by a breach of this Agreement by the non-disclosing party, generally available to the public;\nd. shall, by lawful means, be made available to the non-disclosing party by a third party having a right to disclose it, other than a third\nparty introduced to the non-disclosing party by the disclosing party in connection with the Purpose; or\ne. is required by law or made pursuant to an order from a court or government agency.\nOcera Therapeutics, Inc.\nCorporate Headquarters: 525 University Ave, Suite 610, Palo Alto, CA 94301 650-475 -0158\nRTP Office: 5001 S. Miami Blvd, Suite 300, Durham NC 27703 919-474 -0020\nwww.ocerainc.com\nNASDAQ: OCRX\nIn claiming the benefit of any of the exceptions set forth in this Paragraph 5, the non-disclosing party shall have the burden of establishing\nthat any such portion of the Proprietary Information is subject to such exception.\n6. Term. This Agreement shall remain in full force and effect for a period of five (5) years from the date hereof or until such time as all of\nthe Proprietary Information becomes subject to any of the exceptions set forth in Paragraph 5 hereof.\n7. Publicity. OCERA and COMPANY hereby agree not to disclose their participation in the discussion and exploration of the Purpose, the\nexistence, terms or conditions of this Agreement, or the fact that the discussions are being held between the parties.\n8. Equitable Relief. OCERA and COMPANY acknowledge that any such breach of this Agreement could cause the other party irreparable\nharm. Accordingly, each party agrees that in the event of any breach or threatened breach of this Agreement, in addition to other remedies at law\nor in equity it may have, the party alleging a breach or threatened breach shall be entitled, without the requirement of posting a bond or other\nsecurities, to seek equitable relief, including injunctive relief and specific performance.\n9. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other\nprovision hereof.\n10. Successors and Assigns. Neither party may assign this Agreement, or the rights and obligations hereunder, without the prior written\nconsent of the other party; provided, that a party may assign this Agreement without such consent to an affiliate of such party and/or in\nconnection with the transfer or sale of all or substantially all of the business of the assigning party to which this Agreement relates, whether by\nmerger, sale of stock, sale of assets or otherwise. No assignment shall relieve either party of the performance of any accrued obligation that such\nparty may then have under this Agreement. This Agreement shall inure to the benefit of and be binding upon each party signatory hereto, its\nsuccessors and permitted assigns, subsidiaries and affiliates.\n11. Governing Law. This Agreement shall be governed by, interpreted, construed and enforced in accordance with the laws of the State of\nNew York, without regard to its conflict of laws provisions within.\n12. Entire Agreement. This Agreement constitutes the entire agreement of the parties concerning the matters discussed herein and\nsupersedes and replaces all prior agreements, understandings, writings and discussions between the parties, with respect to the subject matter of\nthis Agreement. This Agreement may be amended only by a written instrument executed by authorized representatives of the parties. This\nAgreement shall not create any obligation for either party to enter into any agreement or relationship with the other. Either party may end\ndiscussions of a possible relationship at any time and for any or no reason and each party reserves the right to disclose its own confidential\ninformation to any third party at any time. This Agreement may be executed in one or more counterpart copies, each of which shall be deemed an\noriginal and all of which shall together be deemed to constitute one Agreement.\nOcera Therapeutics, Inc.\nCorporate Headquarters: 525 University Ave, Suite 610, Palo Alto, CA 94301 650-475 -0158\nRTP Office: 5001 S. Miami Blvd, Suite 300, Durham NC 27703 919-474 -0020\nwww.ocerainc.com\nNASDAQ: OCRX\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nOCERA THERAPEUTICS, INC.\nMALLINCKRODT LLC\n/s/ Linda Grais\n/s/ Joshua Schafer\nSignature\nSignature\nLinda Grais\nJoshua Schafer\nPrinted Name\nPrinted Name\nCEO\nVice President, BD&L\nTitle\nTitle\nOcera Therapeutics, Inc.\nCorporate Headquarters: 525 University Ave, Suite 610, Palo Alto, CA 94301 650-475 -0158\nRTP Office: 5001 S. Miami Blvd, Suite 300, Durham NC 27703 919-474 -0020\nwww.ocerainc.com\nNASDAQ: OCRX
7cca7145fbf23ab7924011e345902142.pdf	effective_date jurisdiction party term	Exhibit 10.19\nCONSULTING AND CONFIDENTIALITY AGREEMENT\nThis Consulting and Confidentiality Agreement (this “Agreement”) is entered into as of September 19, 2005 and has an effective date\nof September 19, 2005, and is by and between by and between MIKOHN GAMING CORPORATION, a Nevada corporation and\nits subsidiaries and affiliates doing business as PROGRESSIVE GAMING INTERNATIONAL CORPORATION (“PGIC”) with\nits principal place of business located at 920 Pilot Road, Las Vegas, Nevada 89119, and Michael F. Dreitzer, an individual\n(“Contractor”).\nWHEREAS, PGIC desires to engage a contractor for the performance of certain services; and\nWHEREAS, Contractor desires to perform such services for PGIC.\nNOW THEREFORE, for valuable consideration, the receipt of which is hereby acknowledged, the parties hereby agree as follows:\n1. Engagement of Services.\nA.\nPGIC hereby engages Contractor to perform the services described in this Agreement, and Contractor agrees to perform\nservices for PGIC as follows: Provide PGIC with consulting services for up to 40 hours per month during the Term (as\ndefined below) with regard to PGIC’s regulatory matters, and with any additional assignments and tasks as shall be assigned\nto Contractor by PGIC (the “Work,” which shall also include any services, material, output, work, or work product arising\nout of this Agreement or produced in connection with this Agreement).\nB.\nTime is of the essence. The Work shall be performed in a good, workman-like manner in accordance with the standards of\nContractor’s profession and such other accepted standards as may be applicable to Work of this kind. Contractor shall\ndevote the necessary time and attention to the Work as is reasonably required to diligently, timely, efficiently, and\nprofessionally complete the Work no later than the time necessary or required by deadlines.\nC.\nAll Work must meet with PGIC’s approval, which is to be determined in PGIC’s sole discretion, which discretion shall not\nto be unreasonably withheld.\nD.\nPGIC specifically selected Contractor to perform the Work based upon PGIC receiving Contractor’s personal service and\ntherefore Contractor may not subcontract or otherwise delegate its obligations under this Agreement without PGIC’s prior\nwritten consent and any attempted assignment contrary to this provision shall be void.\nE.\nContractor acknowledges that PGIC does business in a highly regulated gaming industry and that certain suitability\nrequirements for Contractor must be strictly met in order to perform its Services for PGIC. Accordingly, Contractor shall\nsubmit to all PGIC requested screening, including but not limited to any or all of the following; alcohol & substance abuse\nscreening, fingerprinting, personal history (including criminal background) and/or personal financial disclosures\n(collectively, “Prerequisite Screening”). The Prerequisite Screening is a condition precedent to this Agreement and/or\nperforming any Work under this Agreement. Contractor further agrees to execute any and all releases for PGIC to complete\nthe Prerequisite Screening. Should Contractor not successfully complete and/or pass the Prerequisite Screening or any later\nscreenings, this Agreement shall be immediately terminated without any liability to PGIC or Contractor\n1\n2. Compensation and Term.\nA.\nFees. PGIC will pay Contractor for complete and full performance for all Work specified in this Agreement and for all\nrelated tasks the amount of Six Thousand Five Hundred and 00/100 U.S. Dollars ($6,500.00) per month (“Compensation”).\nThe Compensation is inclusive of any federal, state, municipal and other governmental taxes, franchise, sales, use, or other\ntaxes (included but not limited to value added taxes) now or hereafter imposed on the Contractor by any tax authority.\nB.\nExpenses. Contractor will be reimbursed pursuant to PGIC’s standard policy as may be modified from time to time at\nPGIC’s sole discretion for any reasonable expenses incurred in connection with the performance of the Work. All expenses\nmust be pre-approved by PGIC, and Contractor shall keep full and accurate records and documentation to substantiate the\namounts claimed in any invoice, which records shall be made available to PGIC for inspection at all times.\nC.\nBenefits. During the Term of this Agreement PGIC shall provide Contractor with mobile phone, handheld email and email\nservice similar to that provided to employees of PGIC. Contractor shall be responsible for any COBRA payments he may\nincur for maintaining health insurance.\nD.\nContractor’s Financial Obligations. Contractor shall have full responsibility for the payment of all federal, state and local\ntaxes and contributions, including penalties and interest, imposed pursuant to unemployment insurance, social security,\nincome tax, gross income tax, workmen’s compensation or any other similar statute, and Contractor shall be solely\nresponsible for any liability to third parties resulting from the negligent or intentional acts or omissions of Contractor, its\nrepresentatives, agents, employees or subcontractors arising from or occurring in the course of the Work.\nE.\nPayment Procedure. Contractor shall be paid Compensation every two weeks in accordance with Company’s customary\npaydays.\nF.\nTerm. The term of this Agreement shall be one (1) year (the “Term”). Company may terminate this Agreement at any time\nfor any reason or no reason at all. In the event PGIC terminates this Agreement without cause, Contractor shall be entitled to\nreceive the Compensation for the remaining duration of the original Term. Contractor reserves the right to terminate this\nAgreement at any time upon thirty (30) days written notice to PGIC with no further liability or obligation to either party.\nNotwithstanding anything to the contrary in this Agreement, PGIC shall have the sole and exclusive right and option to\nterminate this Agreement by written notice to Contractor, and thereupon this Agreement shall terminate and become void\nand there shall be no liability on the part of either party (excepting only any provision of this Agreement which provides for\nits survival upon any termination of this Agreement), upon the occurrence of any of the following “for cause” events:\n1)\nContractor’s failure to timely apply for, obtain and/or maintain any and all licenses, permits, approvals and\nauthorizations from any Regulator necessary for Contractor to perform the obligations and duties of this Agreement\nand/or to comply with applicable laws;\n2) A final order in writing by any Regulator requiring the termination of this Agreement;\n3)\nThe reasonable belief of PGIC that the continuation of this Agreement will have a detrimental impact on the ability of\nPGIC or its parent, subsidiaries or affiliates to be qualified or to hold or maintain any license, permit, approval or\nauthorization issued or to be granted by any Regulator;\n4)\nThe commission of any act or anything that is or shall be an offense involving moral turpitude under federal, state or\nlocal laws, or which brings Contractor into public disrepute, contempt, scandal or ridicule, or which insults or offends\nthe community;\n2\n5) Breach of any of the confidentiality or non-disparagement provisions of this Agreement; or\n6) Disapproval of this Agreement by any Regulator having jurisdiction over such matters.\nG.\nRight to Withhold Payments. Regardless of whether PGIC withholds payments, Contractor shall have the obligation to\nconvey to PGIC all Work, including all source code, plans, records, drawings, reports and writings of any kind (if any) for\nthe Work. In addition to its right to withhold payments, PGIC may withhold any payment in whole or part to protect itself\nfrom or in the event of (i) defective Work, (ii) third-party claims arising from Contractor’s performance of the Work,\n(iii) failure of Contractor to make payments properly to any of its subcontractors, (iv) evidence of fraud, over-billing or\noverpayment discovered upon audit, or (v) unsatisfactory or untimely performance of the Work.\n3.\nIndependent Contractor Relationship. Contractor and PGIC understand, acknowledge and agree that Contractor’s relationship\nwith PGIC will be that of an independent contractor and nothing in this Agreement is intended to or should be construed to create a\npartnership, joint venture, or employment relationship. Contractor further represents that Contractor meets the requirements of an\nIndependent Contractor as set forth in Internal Revenue Service Revenue Ruling 87-41 . Further, Contractor shall not have any\nauthority to act, or attempt to act, or represent itself, directly or by implication, as an agent of PGIC or in any manner assume or\ncreate, or attempt to assume or create, any obligation on behalf of or in the name of PGIC, except as provided by PGIC, nor will\neither be deemed the agent, representative or employee of the other.\n4. Trade Secrets — Intellectual Property Rights.\nA.\nDisclosure of Inventions. Contractor agrees to disclose promptly in writing to PGIC, or any person designated by PGIC,\nevery invention, including but not limited to computer programs, processes, know-how and other copyrightable and/or\npatentable material, which is conceived, made or reduced to practice by Contractor within the scope of the Work under this\nAgreement. Contractor represents that Contractor’s performance of all of the terms of this Agreement does not and will not\nbreach any agreement to keep in confidence proprietary information, knowledge or data of any third party and Contractor\nwill not disclose to PGIC, or induce PGIC to use, any confidential or proprietary information belonging to third parties\nunless such use or disclosure is authorized in writing by such owners. Contractor shall retain title to any prior works\nbelonging to Contractor, and to that extent Contractor represents that no property, inventions or copyrighted works\nbelonging to Contractor have been incorporated into the Work. If Contractor has incorporated any property of Contractor’s\ninto the Work, such previously owned property is hereby transferred to PGIC.\nB. Non-Disclosure of Confidential Information.\n1)\nContractor agrees, during the Term and forever thereafter, to keep confidential all information provided by PGIC\n(excepting only such information as is already known to the public, without breach of this Agreement), and including\nany such information and material relating to any customer, vendor, licensor, licensee, or other party transacting\nbusiness with PGIC, and not to release, use or disclose the same except with the prior written permission of PGIC.\nContractor recognizes and acknowledges that the list of PGIC’s customers and clients, as it may exist from time to time,\nand PGIC’s financial information, are valuable, confidential, special, and unique assets and trade secrets of PGIC’s\nbusiness. Contractor will not, during or after the Term, disclose the list of PGIC’s customers and/or clients, or PGIC’s\nfinancial information, or any part thereof, or any other trade secret, to any person, firm, corporation, association or\nother entity for any reason or purpose whatsoever.\n2) Contractor further agrees to consider all specific software, company and personal data,\n3\nregulatory data and information, investigative data and information, artwork and art techniques, programming\ntechniques, project concepts, planned projects, story concepts, game concepts, toys, models, drawings, photographs,\nanimation, cinematography, video, marketing strategies, planned projects, unique hardware, hardware concepts,\nhardware designs, terms of agreements with third parties, methods or techniques for acquiring materials for various\nprojects, data search and retrieval systems, computer processing systems and techniques, systems design, project\ndesign, routine design, algorithms of any sort, programming of any sort, interface design, layout or writing, operating\ninstructions, or any other type of work or intellectual property in any language, on any platform, for any operating\nsystem, in any medium whatsoever, to be confidential information, trade secrets and the exclusive property of PGIC\nwhich will not be converted or disclosed to anyone for any purpose whatsoever. All records, files, memoranda, reports,\nprice lists, customer lists, drawings, plans, sketches, documents, equipment, and the like, relating to the business of\nPGIC, which Contractor shall use or prepare or come into contact with, shall remain the sole property and trade secret\nof PGIC. Any property described or mentioned in this section is jointly or separately referred to as the “Intellectual\nProperty” in this Agreement. Any material, document, data, plan, information, report, memorandum or writing of any\nkind whatsoever, in any media whatsoever, described or mentioned in this section is jointly or separately referred to as\nthe “Confidential Information” in this Agreement. Those items constituting Intellectual Property may also constitute\nConfidential Information, and vice versa.\n3)\nContractor agrees that any information that is in the nature of Confidential Information defined in this section that\neither party receives from any third party and/or which either party is bound, contractually, or by common custom or\nusage in trade to keep in confidence shall also be considered “Confidential Information” by both parties.\n4)\nContractor agrees to use the Intellectual Property and/or Confidential Information solely to perform the project\nhereunder pursuant to the terms of this Agreement. Contractor’s obligations with respect to the Intellectual Property and\nConfidential Information also extend to any third party’s proprietary or confidential information disclosed to Contractor\nin the course of providing services to PGIC.\n5)\nContractor will hold all Confidential Information in trust and confidence. Contractor agrees to take (and to fully\ncooperate with PGIC in undertaking) any reasonable steps necessary to protect the Confidential Information from any\ndisclosure whatsoever. Contractor agrees to require any employee, officer, director, agent or subcontractor who\nperforms work or services pursuant to this Agreement to become bound by the provisions of this Agreement.\nContractor shall provide adequate evidence that such persons are Contractor’s employees.\n6)\nContractor recognizes that the disclosure of Confidential Information or trade secrets by Contractor may give rise to\nirreparable injury to PGIC, which may not be adequately compensated by damages. Accordingly, in the event of a\nbreach or threatened breach by Contractor of any provision of this section, PGIC shall be entitled to an injunction\nrestraining Contractor from disclosing, in whole or in part, the Confidential Information defined in this section, or from\nrendering any services to any person, firm, corporation, association or other entity to whom such Confidential\nInformation, in whole or in part, has been disclosed or is threatened to be disclosed. Nothing herein shall be construed\nas prohibiting PGIC from pursuing any other remedies available to PGIC for such breach or threatened breach,\nincluding the recovery of damages from Contractor.\nThe undertakings set forth in this section shall survive the termination or cancellation of this Agreement.\nC.\nNo Conflict of Interest. Contractor agrees during the Term of this Agreement not to accept work or enter into a contract or accept\nan obligation inconsistent or incompatible with Contractor’s\n4\nobligations or the scope of services rendered for PGIC under this Agreement. Contractor is required to disclose any outside\nactivities or interests, including ownership or participation in the development of prior inventions, that conflict or may conflict with\nthe best interests of PGIC. Prompt disclosure is required under this paragraph if the activity or interest is related, directly or\nindirectly, to: a product or product line of PGIC, a manufacturing process of PGIC, or any activity that Contractor may be involved\nwith on behalf of PGIC. In the interests of full disclosure, the parties acknowledge and understand Contractor will be performing\ncontracting services for Global Gaming Group and TableMax among others, and it is hereby agreed that the provision of such\nservices presents no conflict of interest with PGIC. To the extent that a potential conflict should arise between any of these parties,\nContractor agrees to take all necessary steps to avoid the occurrence of same, including the termination of this or another agreement\nas warranted.\nD. Assignment of Inventions.\n1)\nInventions resulting from the Work (or that of Contractor’s directors, officers, agents, subcontractors or employees) under\nthis Agreement are the exclusive property of PGIC. “Inventions” includes any and all inventions, improvements,\ndiscoveries, and technical developments that Contractor, solely or jointly with others, conceives, makes, or reduces to\npractice within the scope of the Work. Contractor hereby assigns to PGIC Contractor’s entire right, title and interest in the\nInventions worldwide and any associated intellectual property rights, and agrees to execute any and all documentation\nrequested by PGIC to effect such assignment.\n2)\nContractor agrees to assist PGIC in any reasonable manner to obtain and enforce for PGIC’s benefit, patents, copyrights,\nand other property rights covering the Inventions in any and all countries, and Contractor agrees to execute, when requested,\npatent, copyright or similar applications and assignments to PGIC and any other lawful documents deemed necessary by\nPGIC to carry out the purpose of this Agreement. Contractor further agrees that the obligations and undertaking stated in\nthis paragraph will continue beyond the termination of Contractor’s service to PGIC. If called upon to render assistance\nunder this paragraph, other than the execution of documents, Contractor will be entitled to a fair and reasonable fee for\nproviding such assistance.\n3)\nIn the event that PGIC is unable for any reason whatsoever to secure Contractor’s signature to any lawful and necessary\ndocument required to apply for or execute any patent, copyright or other applications with respect to any Inventions\n(including improvements, renewals, assignments, extensions, continuations, divisions, amendments or continuations in part\nthereof), Contractor hereby irrevocably designates and appoints PGIC and its duly authorized officers and agents as\nContractor’s agents and attorneys-in-fact to act for and in Contractor’s behalf and instead of Contractor, to execute and file\nany such application and to do all other lawfully permitted acts to further the prosecution and issuance of patents, copyrights\nor other rights thereon with the same legal force and effect as if executed by Contractor. Contractor is entitled to keep and\nretain Contractor’s own tools, equipment and material provided and owned by Contractor.\nE.\nReturn of PGIC’S Property. Contractor acknowledges that PGIC’s sole and exclusive property includes, among other things, all\ndocuments, such as drawings, manuals, notebooks, reports, sketches, records, computer programs, employee lists, software,\nhardware, videotapes, audiotapes, customer lists and the like in Contractor’s custody, control or possession, whether delivered to\nContractor by PGIC or made by Contractor in the performance of services under this Agreement, relating to the business activities\nof PGIC or its customers or suppliers and containing any information or data whatsoever, whether or not Confidential Information.\nContractor agrees to deliver promptly to PGIC upon termination of this Agreement or at any other time upon PGIC’s request all of\nPGIC’s property and all copies of PGIC’s property in Contractor’s possession,\n5\ncustody or control.\n5.\nWorks Made For Hire. All Work performed by Contractor while performing services for PGIC (during business hours or not) in\nany language, on any platform, for any operating system, in any media or in any form whatsoever (including but not limited to any\nof the Intellectual Property), shall be deemed to have been done upon the commission of and at the instruction of PGIC, shall be a\n“Work Made for Hire” within the meaning of the Copyright Act, shall be the property of PGIC and may not be used by Contractor\nfor any purpose except the benefit of PGIC. Any and all such property shall be forthwith delivered to PGIC upon the PGIC ‘s\nrequest. Contractor agrees that each of Contractor’s own employees, officers, directors, subcontractors and agents are performing\n“Works Made for Hire” for PGIC, and Contractor agrees to cause each of its employees, subcontractors or agents engaged in any\nproject or work for PGIC to sign valid written agreements that such work is being performed as a “Work Made for Hire” for PGIC.\nFurthermore, Contractor agrees to sign and to cause each of its employees, agents and subcontractors engaged in any project or\nwork for PGIC to sign written agreements acknowledging that such work is owned by PGIC and agreeing to execute a “quitclaim\nassignment” for such work to PGIC.\n6.\nContractor’s Cooperation in Establishing Ownership. Contractor shall, from time to time as may be requested by PGIC, do all\nthings that may be necessary to establish or document PGIC ‘s ownership of any work or work product that is properly the Property\nof PGIC, including, but not limited to execution of appropriate copyright applications, copyright assignments, transfers, sales,\nreleases or any and all other documents or writings. Contractor hereby waives any power Contractor may have to control, cause to\nmodify or otherwise effect the Intellectual Property, and hereby transfers all such powers, including but not limited to any powers\nof Droit Morale, to PGIC. Contractor hereby irrevocably appoints PGIC as Contractor’s attorney in fact empowered solely to\nexecute any documents necessary to establish PGIC’s ownership rights, rights to maintain, rights to defend and rights to control any\nof the Intellectual Property and/or Confidential Property.\n7.\nAdditional Compensation. Other than Contractor’s stated compensation, neither Contractor nor its employees, subcontractors,\nofficers, directors or agents is entitled to receive any additional compensation from PGIC (including but not limited to royalties or\nfees) as a result of any work performed, concepts developed, ideas submitted, or other efforts made while a Contractor of PGIC\nexcept to the extent such further compensation is set forth in a formal written agreement. Other than as provided by any formal\nwritten agreement Contractor acknowledges that Contractor has no propriety or ownership interest in PGIC, or any related entities,\nand will not receive any such interest. Unless stated in a separate written agreement, Contractor is not entitled to any equity interest\nin PGIC. Neither Contractor nor any of Contractor’s officers, agents, directors or employees is entitled to any employment benefits\nfrom PGIC, including but not limited to insurance, pensions, paid holidays, vacations, sick leave, paid time off or profit sharing\nexcept as set forth in written agreement.\n8.\nNon-Disparagement. Neither party shall make any remarks or issue any communication, written or otherwise, that disparages or\nderogates, or encourages any adverse action against the other party or any of its affiliates, officers, directors, employees or agents,\nprovided that this paragraph shall not preclude Contractor from testifying truthfully under oath, pursuant to subpoena or otherwise,\nas to his first-hand knowledge, or from providing his first-hand knowledge to any governmental, regulatory or self-regulatory body\nor agency with jurisdiction over PGIC’s activities.\n9.\nNoninterference with Business. During the Term of this Agreement and for a period of two (2) years immediately following\ntermination of this Agreement, Contractor agrees not to solicit or induce any employee or independent contractor, or other\nperson(s) to terminate or breach, or cause to terminate or breach any employment relationship, contractual relationship or other\nrelationship with PGIC.\n6\n10.Contractor’s Representations, Warranties And Indemnification.\nA.\nContractor’s Warranties. In addition to other representations and warranties provided for herein, Contractor represents\nand warrants to PGIC that:\n1) Contractor is the sole and exclusive supplier of the Work performed by Contractor;\n2)\nWith respect to the Work, and any materials pertaining thereto that Contractor discloses, uses, assigns and/or delivers in\nthe performance of its obligations hereunder, Contractor has the right to make such disclosure, use, and/or delivery\nthereof without liability to any third party;\n3)\nThe performance of the terms of this Agreement and of Contractor’s obligation hereunder will not breach any separate\nagreement by which Contractor is bound;\n4)\nContractor has not previously granted any rights in and to the Work to any third party that are inconsistent with any of\nPGIC’s licenses and/or rights hereunder;\n5) Contractor has full power and authority to enter into this Agreement and to fulfill its obligations hereunder;\n6) Contractor is legally competent to sign this Agreement;\n7)\nContractor warrants and represents to PGIC that all acts, duties and obligations required of it under this Agreement\nshall be performed in good faith; and\n8)\nContractor agrees to fully cooperate with any legitimate investigation of Company and to produce any materials or\ndocuments requested by regulatory authorities.\n9)\nContractor hereby agrees to employ only persons who are previously approved by PGIC in writing and who are legally\nauthorized to work in the jurisdictions where Work is to be performed and to have appropriate employment\nauthorization forms, if required, for each person employed by it.\nB.\nContractor’s Indemnification. Contractor agrees to indemnify and hold harmless PGIC and its customers, affiliates and/or\nsub-licensees and end-users from and against any and all claims, losses, liabilities, damages, expenses and costs (including\nattorneys and defense costs) and judgments that may be asserted against PGIC that result from the acts or omissions of\nContractor, Contractor’s employees, if any, and Contractor’s agents, and/or which result from a breach of any of the\nwarranties expressly set forth in this Agreement, or incurred in the settlement or avoidance of any such matter. As a\ncondition to indemnification, PGIC will promptly inform Contractor in writing of the assertion of any such claim, demand\nor suit, and the parties will cooperate with and assist one another with respect to the defense and/or settlement of such\nmatter (in a manner consistent with the parties’ respective confidentiality obligations and desired preservation of\nattorney/client, work product and other privileges). Contractor hereby confirms that Contractor will not agree to the\nsettlement of any such claim, demand or suit prior to judgment thereon by any court of competent jurisdiction unless\nPGIC’s written consent is first obtained, which consent will not be unreasonably withheld or delayed.\n11.PGIC’S Warranties, Representation and Indemnification:\nA. PGIC’S Warranties: PGIC represents and warrants to Contractor that:\n1) PGIC possesses full power and authority to enter into this Agreement and to fulfill its obligations hereunder;\n2)\nThe performance of the terms of this Agreement and of PGIC’s obligations hereunder will not breach any separate\nagreement by which PGIC is bound;\n3)\nPGIC warrants and represents to Contractor that all acts, duties and obligations required of it under this Agreement\nshall be performed in good faith.\nB. PGIC’S Indemnity: PGIC agrees to indemnify and hold harmless Contractor from and against\n7\nany and all claims, losses, liabilities, damages, expenses and costs (including attorneys fees and defense costs) which result\nfrom a breach of any of the warranties expressly set forth in this Agreement, or incurred in the settlement or avoidance of\nany such matter, or which are incurred in the course of PGIC’s activities in connection with this Agreement unless such\nmatters are the fault of Contractor. As a condition to indemnification, Contractor will promptly inform PGIC in writing of\nthe assertion of any such claim, demand or suit, and the parties will cooperate with and assist one another with respect to the\ndefense and/or settlement of such matter (consistent with the parties’ respective confidentiality obligations and preservation\nof attorney/client, work product and other privileges). PGIC hereby confirms that it will not agree to the settlement of any\nsuch claim, demand or suit prior to judgment thereon by any court of competent jurisdiction unless Contractor’s consent is\nfirst obtained, which consent will not be unreasonably withheld or delayed.\n12.General Provisions:\nA.\nGoverning Law: This Agreement will be governed by and construed in accordance with the laws of the United States and\nthe State of Nevada applied to agreements entered into and to be performed entirely within Nevada between Nevada\nresidents. Contractor and PGIC further agree that for purposes of venue and jurisdiction, that any disputes, issues,\nenforcement and/or all other matters concerning the Agreement will be determined in Clark County, State of Nevada,\nUnited States of America. The parties expressly waive any other jurisdiction to which they might be entitled as a result of\ntheir present or future domicile or for any other reason.\nB.\nCompliance with Laws: In the performance of the Work, Contractor shall comply with all applicable laws, rules and\nregulations, including but not limited to all requirements and provisions of the laws and regulations of the United States, the\nStates and subdivisions thereof in which PGIC or any of PGIC’s subsidiaries or affiliates (regardless of when or how\nformed) carry on their business and all general rules, regulations and ethical standards of national, State and local agencies\nand regulatory and advisory groups having jurisdiction over any business of PGIC or any of PGIC’s subsidiaries or affiliates\n(regardless of when or how formed) as they exist now and as same may be amended from time to time.\nC.\nRegulatory Matters: PGIC, its parent corporation and certain related entities are licensed by or otherwise subject to the\nauthority of various casino and gaming regulatory agencies (“Regulator”). PGIC has adopted a regulatory compliance\npolicy, and Contractor agrees to provide PGIC with such documentation, information and assurances regarding itself, any\nprincipal employees, brokers, agents or others where applicable as may be necessary in order for PGIC to comply with\nPGIC’s regulatory compliance policy and with the request of any Regulator. The foregoing shall be a material obligation of\nContractor hereunder.\nD.\nInjuries: Contractor acknowledges Contractor’s obligation to obtain appropriate insurance coverage for the benefit of\nContractor (and Contractor’s employees, if any). Contractor waives any rights to recovery from PGIC for any injuries that\nContractor (and/or Contractor’s employees) may sustain while performing services under this Agreement and that are a\nresult of the negligence of Contractor or Contractor’s employees.\nE.\nEntire Agreement / Modification: This Agreement, including all Exhibits to this Agreement, constitute the entire\nagreement between the parties relating to this subject matter and supersedes all prior or simultaneous representations,\ndiscussions, negotiations, and agreements, whether written or oral. Any and all amendments, changes, revisions, and/or\nmodifications to this Agreement must be in writing signed by Contractor and PGIC.\n8\nF.\nWaiver: No term or provision hereof will be considered waived by either party, and no breach excused by either party,\nunless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by\neither party to, or waiver of, a breach by either party, whether express or implied, will constitute a consent to, waiver of, or\nexcuse of any other, different, or subsequent breach by either party.\nG.\nSuccessors and Assigns: Contractor may not assign its rights or obligations arising under this Agreement without PGIC’s\nprior written consent. PGIC may assign its rights and obligations under this Agreement. This Agreement will be for the\nbenefit of PGIC’s successors and assigns, and will be binding on Contractor’s heirs, legal representatives and permitted\nassignees.\nH.\nLegal Fees: If any dispute arises between the parties with respect to the matters covered by this Agreement which leads to a\nproceeding to resolve such dispute, the prevailing party in such proceeding shall be entitled to receive its reasonable\nattorneys’ fees, expert witness fees and out-of-pocket costs incurred in connection with such proceeding, in addition to any\nother relief to which it may be entitled, including but not limited to equitable relief such as restraining orders and\ninjunctions.\nI.\nNotices: All notices, requests and other communications required to be given under this Agreement must be in writing, and\nmust be mailed by registered or certified mail, postage prepaid and return receipt requested, or delivered by hand to the\nparty to whom such notice is required or permitted to be given. Any such notice will be considered to have been given when\nreceived, or if mailed, five (5) business days after it was mailed, as evidenced by the postmark. The mailing address for\nnotice to either party will be the address shown on the face page of this Agreement. Either party may change its mailing\naddress by notice as provided by this Section.\nJ.\nSeverability: Should any term, condition, or provision herein be determined to be unenforceable, such determination shall\nnot impair, limit, or otherwise affect the enforceability of the remaining terms of this Agreement.\nK.\nWaiver. Failure of either party to insist on strict performance shall not constitute a waiver of any of the provisions of this\nAgreement or a waiver of any default of the other party.\nL.\nSurvival: The following provisions shall survive termination of this Agreement: Section IV, Section 5, Section 6, and\nSection 9.\nMIKOHN GAMING\nCORPORATION, a\nNevada corporation, doing business\nas\nMichael F. Dreitzer, an individual\nPROGRESSIVE GAMING\nINTERNATIONAL\nCORPORATION\nBy: /s/ Michael A. Sicuro\nBy: /s/ Michael F. Dreitzer\nName:Michael A. Sicuro\nName:\nMichael F. Dreitzer\nTitle:Executive Vice President & CFO\nDate:\nDate:\n9	Exhibit 10.19\nCONSULTING AND CONFIDENTIALITY AGREEMENT\nThis Consulting and Confidentiality Agreement (this ”A greement”) is entered into as of September 19, 2005 and has an effective date\nof September 19, 2005, and is by and between by and between MIKOHN GAMING CORPORATION, a Nevada corporation and\nits subsidiaries and affiliates doing business as PROGRESSIVE GAMING INTERNATIONAL CORPORATION (”PGIC") with\nits principal place of business located at 920 Pilot Road, Las Vegas, Nevada 89119, and Michael F. Dreitzer, an individual\n(”Contractor”).\nWHE REA S, PGIC desires to engage a contractor for the performance of certain services; and\nWHE REA S, Contractor desires to perform such services for PGIC.\nNOW THEREFORE, for valuable consideration, the receipt of which is hereby acknowledged, the parties hereby agree as follows:\n1. Engagement of Services.\nPGIC hereby engages Contractor to perform the services described in this Agreement, and Contractor agrees to perform\nservices for PGIC as follows: Provide PGIC with consulting services for up to 40 hours per month during the Term (as\nA. defined below) with regard to PGIC' s regulatory matters, and with any additional assignments and tasks as shall be assigned\nto Contractor by PGIC (the ”W ork," which shall also include any services, material, output, work, or work product arising\nout of this Agreement or produced in connection with this Agreement).\nTime is of the essence. The Work shall be performed in a good, workman-like manner in accordance with the standards of\nContractor” s profession and such other accepted standards as may be applicable to Work of this kind. Contractor shall\nB.\ndevote the necessary time and attention to the Work as is reasonably required to diligently, timely, efficiently, and\nprofessionally complete the Work no later than the time necessary or required by deadlines.\nC All Work must meet with PGIC’s approval, which is to be determined in PGIC’s sole discretion, which discretion shall not\nto be unreasonably withheld.\nPGIC specifically selected Contractor to perform the Work based upon PGIC receiving Contractor” s personal service and\nD. therefore Contractor may not subcontract or otherwise delegate its obligations under this Agreement without PGIC’s prior\nwritten consent and any attempted assignment contrary to this provision shall be void.\nContractor acknowledges that PGIC does business in a highly regulated gaming industry and that certain suitability\nrequirements for Contractor must be strictly met in order to perform its Services for PGIC. A ccordingly, Contractor shall\nsubmit to all PGIC requested screening, including but not limited to any or all of the following; alcohol & substance abuse\nscreening, fingerprinting, personal history (including criminal background) and/or personal financial disclosures\n(collectively, ”Prerequisite Screening”). The Prerequisite Screening is a condition precedent to this Agreement and/or\nperforming any Work under this Agreement. Contractor further agrees to execute any and all releases for PGIC to complete\nthe Prerequisite Screening. Should Contractor not successfully complete and/or pass the Prerequisite Screening or any later\nscreenings, this Agreement shall be immediately terminated without any liability to PGIC or Contractor\n2. Compensation and Term.\nFees. PGIC will pay Contractor for complete and full performance for all Work specified in this Agreement and for all\nrelated tasks the amount of Six Thousand Five Hundred and 00/100 US. Dollars ($6,500.00) per month (”Compensation”).\nA. .\nThe Compensation is inclusive of any federal, state, municipal and other governmental taxes, franchise, sales, use, or other\ntaxes (included but not limited to value added taxes) now or hereafter imposed on the Contractor by any tax authority.\nExpenses. Contractor will be reimbursed pursuant to PG lC’s standard policy as may be modified from time to time at\nB PGlC’s sole discretion for any reasonable expenses incurred in connection with the performance of the Work. All expenses\nmust be pre approved by PGIC, and Contractor shall keep full and accurate records and documentation to substantiate the\namounts claimed in any invoice, which records shall be made available to PGIC for inspection at all times.\nBenefits. During the Term of this Agreement PGIC shall provide Contractor with mobile phone, handheld email and email\nC. service similar to that provided to employees of PG lC. Contractor shall be responsible for any COBRA payments he may\nincur for maintaining health insurance.\nC ontractor’s Financial 0 bligations. Contractor shall have full responsibility for the payment of all federal, state and local\ntaxes and contributions, including penalties and interest, imposed pursuant to unemployment insurance, social security,\nD. income tax, gross income tax, workmen' s compensation or any other similar statute, and Contractor shall be solely\nresponsible for any liability to third parties resulting from the negligent or intentional acts or omissions of Contractor, its\nrepresentatives, agents, employees or subcontractors arising from or occurring in the course of the Work.\nPayment Procedure. Contractor shall be paid Compensation every two weeks in accordance with Company' s customary\nE.\npaydays.\nTerm. The term of this Agreement shall be one (1) year (the ”Term"). Company may terminate this Agreement at any time\nfor any reason or no reason at all. In the event PGIC terminates this Agreement without cause, Contractor shall be entitled to\nreceive the Compensation for the remaining duration of the original Term. Contractor reserves the right to terminate this\nF Agreement at any time upon thirty (30) days written notice to PGIC with no further liability or obligation to either party.\nNotwithstanding anything to the contrary in this Agreement, PGIC shall have the sole and exclusive right and option to\nterminate this A greement by written notice to Contractor, and thereupon this A greement shall terminate and become void\nand there shall be no liability on the part of either party (excepting only any provision of this Agreement which provides for\nits survival upon any termination of this Agreement), upon the occurrence of any of the following ”for cause” events:\nContractor” s failure to timely apply for, obtain and/or maintain any and all licenses, permits, approvals and\n1) authorizations from any Regulator necessary for Contractor to perform the obligations and duties of this Agreement\nand/or to comply with applicable laws;\n2) A final order in writing by any Regulator requiring the termination of this Agreement;\nThe reasonable belief of PG lC that the continuation of this Agreement will have a detrimental impact on the ability of\n3) PGIC or its parent, subsidiaries or affiliates to be qualified or to hold or maintain any license, permit, approval or\nauthorization issued or to be granted by any Regulator;\nThe commission of any act or anything that is or shall be an offense involving moral turpitude under federal, state or\n4) local laws, or which brings Contractor into public disrepute, contempt, scandal or ridicule, or which insults or offends\nthe community;\n5) Breach of any of the confidentiality or non-disparagement provisions of this Agreement; or\n6) Disapproval of this Agreement by any Regulator having jurisdiction over such matters.\nRight to Withheld Payments. Regardless of whether PGIC withholds payments, Contractor shall have the obligation to\nconvey to PGIC all Work, including all source code, plans, records, drawings, reports and writings of any kind (if any) for\nthe Work. In addition to its right to withhold payments, PGIC may withhold any payment in whole or part to protect itself\nfrom or in the event of (i) defective Work, (ii) third-party claims arising from Contractors performance of the Work,\n(iii) failure of Contractor to make payments properly to any of its subcontractors, (iv) evidence of fraud, over-billing or\noverpayment discovered upon audit, or (v) unsatisfactory or untimely performance of the Work.\nIndependent C ontractor Relationship. Contractor and PG IC understand, acknowledge and agree that Contractor” s relationship\nwith PGIC will be that of an independent contractor and nothing in this A greement is intended to or should be construed to create a\npartnership, joint venture, or employment relationship. Contractor further represents that Contractor meets the requirements of an\n3. Independent Contractor as set forth in Internal Revenue Service Revenue Ruling 87-41. Further, Contractor shall not have any\nauthority to act, or attempt to act, or represent itself, directly or by implication, as an agent of PGIC or in any manner assume or\ncreate, or attempt to assume or create, any obligation on behalf of or in the name of PGIC, except as provided by PG IC, nor will\neither be deemed the agent, representative or employee of the other.\n4. Trade Secrets — Intellectual Property Rights.\nDisclosure of Inventions. Contractor agrees to disclose promptly in writing to PGIC, or any person designated by PGIC,\nevery invention, including but not limited to computer programs, processes, know-how and other copyrightable and/or\npatentable material, which is conceived, made or reduced to practice by Contractor within the scope of the Work under this\nAgreement. Contractor represents that Contractor” s performance of all of the terms of this Agreement does not and will not\nbreach any agreement to keep in confidence proprietary information, knowledge or data of any third party and Contractor\nwill not disclose to PG IC, or induce PGIC to use, any confidential or proprietary information belonging to third parties\nunless such use or disclosure is authorized in writing by such owners. Contractor shall retain title to any prior works\nbelonging to Contractor, and to that extent Contractor represents that no property, inventions or copyrighted works\nbelonging to Contractor have been incorporated into the Work. If Contractor has incorporated any property of Contractor” s\ninto the Work, such previously owned property is hereby transferred to PGIC.\nB. Non-Disclosure of C onfidential Information.\nContractor agrees, during the Term and forever thereafter, to keep confidential all information provided by PGIC\n(excepting only such information as is already known to the public, without breach of this Agreement), and including\nany such information and material relating to any customer, vendor, licensor, licensee, or other party transacting\nbusiness with PGIC, and not to release, use or disclose the same except with the prior written permission of PGIC.\n1) Contractor recognizes and acknowledges that the list of PGIC’s customers and clients, as it may exist from time to time,\nand PGIC’s financial information, are valuable, confidential, special, and unique assets and trade secrets of PGIC’s\nbusiness. Contractor will not, during or after the Term, disclose the list of PGIC’s customers and/or clients, or PGIC' s\nfinancial information, or any part thereof, or any other trade secret, to any person, firm, corporation, association or\nother entity for any reason or purpose whatsoever.\n2) Contractor further agrees to consider all specific software, company and personal data,\nregulatory data and information, investigative data and information, artwork and art techniques, programming\ntechniques, project concepts, planned projects, story concepts, game concepts, toys, models, drawings, photographs,\nanimation, cinematography, video, marketing strategies, planned projects, unique hardware, hardware concepts,\nhardware designs, terms of agreements with third parties, methods or techniques for acquiring materials for various\nprojects, data search and retrieval systems, computer processing systems and techniques, systems design, project\ndesign, routine design, algorithms of any sort, programming of any sort, interface design, layout or writing, operating\ninstructions, or any other type of work or intellectual property in any language, on any platform, for any operating\nsystem, in any medium whatsoever, to be confidential information, trade secrets and the exclusive property of PGIC\nwhich will not be converted or disclosed to anyone for any purpose whatsoever. All records, files, memoranda, reports,\nprice lists, customer lists, drawings, plans, sketches, documents, equipment, and the like, relating to the business of\nPGIC, which Contractor shall use or prepare or come into contact with, shall remain the sole property and trade secret\nof PGIC. Any property described or mentioned in this section is jointly or separately referred to as the ”Intellectual\nProperty" in this Agreement. Any material, document, data, plan, information, report, memorandum or writing of any\nkind whatsoever, in any media whatsoever, described or mentioned in this section is jointly or separately referred to as\nthe ”Confidential Information” in this Agreement. Those items constituting Intellectual Property may also constitute\nConfidential Information, and vice versa.\nContractor agrees that any information that is in the nature of Confidential Information defined in this section that\n3) either party receives from any third party and/or which either party is bound, contractually, or by common custom or\nusage in trade to keep in confidence shall also be considered ”Confidential Information” by both parties.\nContractor agrees to use the Intellectual Property and/or Confidential Information solely to perform the project\nhereunder pursuant to the terms of this Agreement. Contractor” s obligations with respect to the Intellectual Property and\nConfidential Information also extend to any third party’ s proprietary or confidential information disclosed to Contractor\nin the course of providing services to PGIC.\nContractor will hold all Confidential Information in trust and confidence. Contractor agrees to take (and to fully\ncooperate with PGIC in undertaking) any reasonable steps necessary to protect the Confidential Information from any\n5) disclosure whatsoever. Contractor agrees to require any employee, officer, director, agent or subcontractor who\nperforms work or services pursuant to this Agreement to become bound by the provisions of this Agreement.\nContractor shall provide adequate evidence that such persons are Contractor s employees.\nContractor recognizes that the disclosure of Confidential Information or trade secrets by Contractor may give rise to\nirreparable injury to PGIC, which may not be adequately compensated by damages. Accordingly, in the event of a\nbreach or threatened breach by Contractor of any provision of this section, PGIC shall be entitled to an injunction\nrestraining Contractor from disclosing, in whole or in part, the Confidential Information defined in this section, or from\nrendering any services to any person, firm, corporation, association or other entity to whom such Confidential\nInformation, in whole or in part, has been disclosed or is threatened to be disclosed. Nothing herein shall be construed\nas prohibiting PGIC from pursuing any other remedies available to PGIC for such breach or threatened breach,\nincluding the recovery of damages from Contractor.\nThe undertakings set forth in this section shall survive the termination or cancellation of this A greement.\nNo C onflict of Interest. Contractor agrees during the Term of this A greement not to accept work or enter into a contract or accept\n’ an obligation inconsistent or incompatible with Contractor” s\nobligations or the scope of services rendered for PGIC under this Agreement. Contractor is required to disclose any outside\nactivities or interests, including ownership or participation in the development of prior inventions, that conflict or may conflict with\nthe best interests of PGIC. Prompt disclosure is required under this paragraph if the activity or interest is related, directly or\nindirectly, to: a product or product line of PGIC, a manufacturing process of PGIC, or any activity that Contractor may be involved\nwith on behalf of PGIC. In the interests of full disclosure, the parties acknowledge and understand Contractor will be performing\ncontracting services for Global Gaming Group and TableMax among others, and it is hereby agreed that the provision of such\nservices presents no conflict of interest with PGIC. To the extent that a potential conflict should arise between any of these parties,\nContractor agrees to take all necessary steps to avoid the occurrence of same, including the termination of this or another agreement\nas warranted.\nD Assignment of Inventions.\nInventions resulting from the Work (or that of Contractor” s directors, officers, agents, subcontractors or employees) under\nthis A greement are the exclusive property of PGIC. ”Inventions" includes any and all inventions, improvements,\ndiscoveries, and technical developments that Contractor, solely or jointly with others, conceives, makes, or reduces to\npractice within the scope of the Work. Contractor hereby assigns to PGIC Contractor s entire right, title and interest in the\nInventions worldwide and any associated intellectual property rights, and agrees to execute any and all documentation\nrequested by PGIC to effect such assignment.\nContractor agrees to assist PGIC in any reasonable manner to obtain and enforce for PGIC’s benefit, patents, copyrights,\nand other property rights covering the Inventions in any and all countries, and Contractor agrees to execute, when requested,\npatent, copyright or similar applications and assignments to PG IC and any other lawful documents deemed necessary by\n2) PGIC to carry out the purpose of this Agreement. Contractor further agrees that the obligations and undertaking stated in\nthis paragraph will continue beyond the termination of Contractor” s service to PGIC. If called upon to render assistance\nunder this paragraph, other than the execution of documents, Contractor will be entitled to a fair and reasonable fee for\nproviding such assistance.\nIn the event that PGIC is unable for any reason whatsoever to secure Contractor” s signature to any lawful and necessary\ndocument required to apply for or execute any patent, copyright or other applications with respect to any Inventions\n(including improvements, renewals, assignments, extensions, continuations, divisions, amendments or continuations in part\nthereof), Contractor hereby irrevocably designates and appoints PGIC and its duly authorized officers and agents as\nContractor” s agents and attomeys-in-fact to act for and in Contractor” s behalf and instead of Contractor, to execute and file\nany such application and to do all other lawfully permitted acts to further the prosecution and issuance of patents, copyrights\nor other rights thereon with the same legal force and effect as if executed by Contractor. Contractor is entitled to keep and\nretain Contractor” s own tools, equipment and material provided and owned by Contractor.\nReturn of PG IC ’8 Property. Contractor acknowledges that PGIC' s sole and exclusive property includes, among other things, all\ndocuments, such as drawings, manuals, notebooks, reports, sketches, records, computer programs, employee lists, software,\nhardware, videotapes, audiotapes, customer lists and the like in Contractor” s custody, control or possession, whether delivered to\nE. Contractor by PG IC or made by Contractor in the performance of services under this Agreement, relating to the business activities\nof PGIC or its customers or suppliers and containing any information or data whatsoever, whether or not Confidential Information.\nContractor agrees to deliver promptly to PGIC upon termination of this A greement or at any other time upon PGIC' s request all of\nPGIC’s property and all copies of PG IC’s property in Contractors possession,\nU1\n9‘\n\‘l\n00\ncustody or control.\nWorks Made For Hire. All Work performed by Contractor while performing services for PGIC (during business hours or not) in\nany language, on any platform, for any operating system, in any media or in any form whatsoever (including but not limited to any\nof the Intellectual Property), shall be deemed to have been done upon the commission of and at the instruction of PGIC, shall be a\n”W ork Made for Hire" within the meaning of the Copyright Act, shall be the property of PGIC and may not be used by Contractor\nfor any purpose except the benefit of PG IC. Any and all such property shall be forthwith delivered to PGIC upon the PG IC ’s\n. request. Contractor agrees that each of Contractor” s own employees, officers, directors, subcontractors and agents are performing ”W orks Made for Hire" for PGIC, and Contractor agrees to cause each of its employees, subcontractors or agents engaged in any\nproject or work for PGIC to sign valid written agreements that such work is being performed as a ”W ork Made for Hire" for PG IC.\nFurthermore, Contractor agrees to sign and to cause each of its employees, agents and subcontractors engaged in any project or\nwork for PGIC to sign written agreements acknowledging that such work is owned by PGIC and agreeing to execute a ”quitclaim\nassignment" for such work to PGIC.\nContractor’s Cooperation in Establishing Ownership. Contractor shall, from time to time as may be requested by PGIC, do all\nthings that may be necessary to establish or document PGIC ’s ownership of any work or work product that is properly the Property\nof PGIC, including, but not limited to execution of appropriate copyright applications, copyright assignments, transfers, sales,\nreleases or any and all other documents or writings. Contractor hereby waives any power Contractor may have to control, cause to\nmodify or otherwise effect the Intellectual Property, and hereby transfers all such powers, including but not limited to any powers\nof Droit Morale, to PGIC. Contractor hereby irrevocably appoints PGIC as Contractor” s attorney in fact empowered solely to\nexecute any documents necessary to establish PG IC’s ownership rights, rights to maintain, rights to defend and rights to control any\nof the Intellectual Property and/or Confidential Property.\nAdditional C ompensation. Other than Contractor” s stated compensation, neither Contractor nor its employees, subcontractors,\nofficers, directors or agents is entitled to receive any additional compensation from PGIC (including but not limited to royalties or\nfees) as a result of any work performed, concepts developed, ideas submitted, or other efforts made while a Contractor of PGIC\nexcept to the extent such further compensation is set forth in a formal written agreement. Other than as provided by any formal\n. written agreement Contractor acknowledges that Contractor has no propriety or ownership interest in PGIC, or any related entities, and will not receive any such interest. Unless stated in a separate written agreement, Contractor is not entitled to any equity interest\nin PGIC. Neither Contractor nor any of Contractor” s officers, agents, directors or employees is entitled to any employment benefits\nfrom PGIC, including but not limited to insurance, pensions, paid holidays, vacations, sick leave, paid time off or profit sharing\nexcept as set forth in written agreement.\nNon-Disparagement. Neither party shall make any remarks or issue any communication, written or otherwise, that disparages or\nderogates, or encourages any adverse action against the other party or any of its affiliates, officers, directors, employees or agents,\n. provided that this paragraph shall not preclude Contractor from testifying truthfully under oath, pursuant to subpoena or otherwise, as to his first-hand knowledge, or from providing his first-hand knowledge to any governmental, regulatory or self-regulatory body\nor agency with jurisdiction over PGIC’s activities.\nNoninterference with Business. During the Term of this A greement and for a period of two (2) years immediately following\ntermination of this Agreement, Contractor agrees not to solicit or induce any employee or independent contractor, or other\nperson(s) to terminate or breach, or cause to terminate or breach any employment relationship, contractual relationship or other\nrelationship with PG IC.\n10C ontractor’s Representations, Warranties And Indemnification. A. C ontractor’s Warranties. In addition to other representations and warranties provided for herein, Contractor represents\nand warrants to PGIC that:\n1) Contractor is the sole and exclusive supplier of the Work performed by Contractor;\nWith respect to the Work, and any materials pertaining thereto that Contractor discloses, uses, assigns and/or delivers in\n2) the performance of its obligations hereunder, Contractor has the right to make such disclosure, use, and/or delivery\nthereof without liability to any third party;\nThe performance of the terms of this A greement and of Contractor” s obligation hereunder will not breach any separate\nagreement by which Contractor is bound;\nContractor has not previously granted any rights in and to the Work to any third party that are inconsistent with any of\nPGIC’s licenses and/or rights hereunder;\n5) Contractor has full power and authority to enter into this Agreement and to fulfill its obligations hereunder;\n6) Contractor is legally competent to sign this Agreement;\nContractor warrants and represents to PG lC that all acts, duties and obligations required of it under this Agreement\nshall be performed in good faith; and\nContractor agrees to fully cooperate with any legitimate investigation of Company and to produce any materials or\ndocuments requested by regulatory authorities.\nContractor hereby agrees to employ only persons who are previously approved by PGIC in writing and who are legally\n9) authorized to work in the jurisdictions where Work is to be performed and to have appropriate employment\nauthorization forms, if required, for each person employed by it.\nContractor’s Indemnification. Contractor agrees to indemnify and hold harmless PGIC and its customers, affiliates and/or\nsub-licensees and end-users from and against any and all claims, losses, liabilities, damages, expenses and costs (including\nattorneys and defense costs) and judgments that may be asserted against PGIC that result from the acts or omissions of\nContractor, Contractor” s employees, if any, and Contractor” s agents, and/or which result from a breach of any of the\nwarranties expressly set forth in this Agreement, or incurred in the settlement or avoidance of any such matter. As a\ncondition to indemnification, PGIC will promptly inform Contractor in writing of the assertion of any such claim, demand\nor suit, and the parties will cooperate with and assist one another with respect to the defense and/or settlement of such\nmatter (in a manner consistent with the parties' respective confidentiality obligations and desired preservation of\nattorney/client, work product and other privileges). Contractor hereby confirms that Contractor will not agree to the\nsettlement of any such claim, demand or suit prior to judgment thereon by any court of competent jurisdiction unless\nPGIC’s written consent is first obtained, which consent will not be unreasonably withheld or delayed.\n11PG IC ’ S W arranties, Representation and Indemnification: A. B. PG IC ’8 Warranties: PGIC represents and warrants to Contractor that:\n1) PGIC possesses full power and authority to enter into this Agreement and to fulfill its obligations hereunder;\nThe performance of the terms of this A greement and of PGIC’s obligations hereunder will not breach any separate\n2\n) agreement by which PGIC is bound;\nPGIC warrants and represents to Contractor that all acts, duties and obligations required of it under this Agreement\n3\n) shall be performed in good faith.\nPG IC ’8 Indemnity: PGIC agrees to indemnify and hold harmless Contractor from and against\nany and all claims, losses, liabilities, damages, expenses and costs (including attorneys fees and defense costs) which result\nfrom a breach of any of the warranties expressly set forth in this Agreement, or incurred in the settlement or avoidance of\nany such matter, or which are incurred in the course of PGIC’s activities in connection with this Agreement unless such\nmatters are the fault of Contractor. As a condition to indemnification, Contractor will promptly inform PGIC in writing of\nthe assertion of any such claim, demand or suit, and the parties will cooperate with and assist one another with respect to the\ndefense and/or settlement of such matter (consistent with the parties' respective confidentiality obligations and preservation\nof attomey/client, work product and other privileges). PGIC hereby confirms that it will not agree to the settlement of any\nsuch claim, demand or suit prior to judgment thereon by any court of competent jurisdiction unless Contractor’ s consent is\nfirst obtained, which consent will not be unreasonably withheld or delayed.\n12 G eneral Provisions:\nG overning Law: This Agreement will be governed by and construed in accordance with the laws of the United States and\nthe State of Nevada applied to agreements entered into and to be performed entirely within Nevada between Nevada\nresidents. Contractor and PGIC further agree that for purposes of venue and jurisdiction, that any disputes, issues,\nenforcement and/or all other matters concerning the A greement will be determined in Clark County, State of Nevada,\nUnited States of America. The parties expressly waive any other jurisdiction to which they might be entitled as a result of\ntheir present or future domicile or for any other reason.\nCompliance with Laws: In the performance of the Work, Contractor shall comply with all applicable laws, rules and\nregulations, including but not limited to all requirements and provisions of the laws and regulations of the United States, the\nStates and subdivisions thereof in which PGIC or any of PGIC’s subsidiaries or affiliates (regardless of when or how\nformed) carry on their business and all general rules, regulations and ethical standards of national, State and local agencies\nand regulatory and advisory groups having jurisdiction over any business of PG 1C or any of PGIC’s subsidiaries or affiliates\n(regardless of when or how formed) as they exist now and as same may be amended from time to time.\nRegulatory Matters: PGIC, its parent corporation and certain related entities are licensed by or otherwise subject to the\nauthority of various casino and gaming regulatory agencies (”Regulator”). PG IC has adopted a regulatory compliance\npolicy, and Contractor agrees to provide PGIC with such documentation, information and assurances regarding itself, any\nprincipal employees, brokers, agents or others where applicable as may be necessary in order for PGIC to comply with\nPGIC’s regulatory compliance policy and with the request of any Regulator. The foregoing shall be a material obligation of\nC ontractor hereunder.\nInjuries: Contractor acknowledges Contractor” s obligation to obtain appropriate insurance coverage for the benefit of\nContractor (and Contractor” s employees, if any). Contractor waives any rights to recovery from PGIC for any injuries that\nContractor (and/or Contractor’ s employees) may sustain while performing services under this A greement and that are a\nresult of the negligence of Contractor or Contractor” s employees.\nEntire Agreement / Modification: This A greement, including all Exhibits to this A greement, constitute the entire\nagreement between the parties relating to this subject matter and supersedes all prior or simultaneous representations,\ndiscussions, negotiations, and agreements, whether written or oral. Any and all amendments, changes, revisions, and/or\nmodifications to this Agreement must be in writing signed by Contractor and PGIC.\nWaiver: No term or provision hereof will be considered waived by either party, and no breach excused by either party,\nunless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by\neither party to, or waiver of, a breach by either party, whether express or implied, will constitute a consent to, waiver of, or\nexcuse of any other, different, or subsequent breach by either party.\nSuccessors and Assigns: Contractor may not assign its rights or obligations arising under this Agreement without PGIC’s prior written consent. PGIC may assign its rights and obligations under this Agreement. This Agreement will be for the benefit of PGIC’s successors and assigns, and will be binding on Contractor” s heirs, legal representatives and permitted assignees.\nLegal Fees: If any dispute arises between the parties with respect to the matters covered by this Agreement which leads to a proceeding to resolve such dispute, the prevailing party in such proceeding shall be entitled to receive its reasonable H. attorneys’ fees, expert witness fees and out-of-pocket costs incurred in connection with such proceeding, in addition to any other relief to which it may be entitled, including but not limited to equitable relief such as restraining orders and injunctions.\nNotices: All notices, requests and other communications required to be given under this A greement must be in writing, and must be mailed by registered or certified mail, postage prepaid and return receipt requested, or delivered by hand to the party to whom such notice is required or permitted to be given. Any such notice will be considered to have been given when received, or if mailed, five (5) business days after it was mailed, as evidenced by the postmark. The mailing address for notice to either party will be the address shown on the face page of this Agreement. Either party may change its mailing address by notice as provided by this Section. Severabililgy: Should any term, condition, or provision herein be determined to be unenforceable, such determination shall not impair, limit, or otherwise affect the enforceability of the remaining terms of this Agreement. Waiver. Failure of either party to insist on strict performance shall not constitute a waiver of any of the provisions of this Agreement or a waiver of any default of the other party. J.\nK.\nL. .\nSection 9.\nMIKOHN GAMING\nCORPORATION, a\nNevada corporation, doing business\nas\nPROG RE SSIVE GAMING\nINTERNATIONAL\nC ORPO RATIO N\nBy: /s/ Michael A. Sicuro\nNameMichael A. Sicuro\nTitle:Executive Vice President & CFO\nDate:\nSurvival: The following provisions shall survive termination of this Agreement: Section IV, Section 5, Section 6, and Michael F. Dreitzer, an individual\nBy: /s/ Michael F. Dreitzer\nNanMichael F. Dreitzer\nD ate:	Exhibit 10.19\nCONSULTING AND CONFIDENTIALITY AGREEMENT\nThis Consulting and Confidentiality greement (this greement") is entered into as of September 19, 2005 and has an effective date\nof September 19, 2005, and is by and between by and between MIKOHN GAMING CORPORATION, a Nevada corporation and\nits subsidiaries and affiliates doing business as PROGRESSIVE GAMING INTERNATIONAL CORPORATION ("PGIC") with\nits principal place of business located at 920 Pilot Road, Las Vegas, Nevada 89119, and Michael F. Dreitzer, an individual\n("Contractor").\nWHEREAS, PGIC desires to engage a contractor for the performance of certain services; and\nWHEREAS, Contractor desires to perform such services for PGIC.\nNOW THEREFORE, for valuable consideration, the receipt of which is hereby acknowledged, the parties hereby agree as follows:\n1. Engagement of Services.\nPGIC hereby engages Contractor to perform the services described in this A greement, and Contractor agrees to perform\nservices for PGIC as follows: Provide PGIC with consulting services for up to 40 hours per month during the Term (as\nA.\ndefined below) with regard to PGIC's regulatory matters, and with any additional assignments and tasks as shall be assigned\nto Contractor by PGIC (the "Work," which shall also include any services, material, output, work, or work product arising\nout of this A greement or produced in connection with this greement).\nTime is of the essence. The Work shall be performed in a good, workman-like manner in accordance with the standards\nof\nB.\nContractor's profession and such other accepted standards as may be applicable to Work of this kind. Contractor shall\ndevote the necessary time and attention to the Work as is reasonably required to diligently, timely, efficiently, and\nprofessionally complete the Work no later than the time necessary or required by deadlines.\nC.\nAll Work must meet with PGIC's approval, which is to be determined in PGIC's sole discretion, which discretion shall not\nto be unreasonably withheld.\nPGIC specifically selected Contractor to perform the Work based upon PGIC receiving Contractor's personal service and\nD.\ntherefore Contractor may not subcontract or otherwise delegate its obligations under this A greement without PGIC's prior\nwritten consent and any attempted assignment contrary to this provision shall be void.\nContractor acknowledges that PGIC does business in a highly regulated gaming industry and that certain suitability\nrequirements for Contractor must be strictly met in order to perform its Services for PGIC. A ccordingly, Contractor shall\nsubmit to all PGIC requested screening, including but not limited to any or all of the following; alcohol & substance abuse\nE.\nscreening, fingerprinting, personal history (including criminal background) and/or personal financial disclosures\n(collectively, "Prerequisite Screening"). The Prerequisite Screening is a condition precedent to this A greement and/or\nperforming any ork under this greement. Contractor further agrees to execute any and all releases for PGIC to complete\nthe Prerequisite Screening. Should Contractor not successfully complete and/or pass the Prerequisite Screening or any later\nscreenings, this A greement shall be immediately terminated without any liability to PGIC or Contractor\n1\n2. Compensation and Term.\nFees. PGIC will pay Contractor for complete and full performance for all Work specified in this A greement and for all\nrelated tasks the amount of Six Thousand Five Hundred and 00/100 U.S. Dollars ($6,500.00) per month ("Compensation").\nA.\nThe Compensation is inclusive of any federal, state, municipal and other governmental taxes, franchise, sales, use, or other\ntaxes (included but not limited to value added taxes) now or hereafter imposed on the Contractor by any tax authority.\nExpenses. Contractor will be reimbursed pursuant to PGIC's standard policy as may be modified from time to time at\nPGIC's sole discretion for any reasonable expenses incurred in connection with the performance of the Work. All expenses\nB.\nmust be pre-approved by PGIC, and Contractor shall keep full and accurate records and documentation to substantiate the\namounts claimed in any invoice, which records shall be made available to PGIC for inspection at all times.\nBenefits. During the Term of this greement PGIC shall provide Contractor with mobile phone, handheld email and email\nC. service similar to that provided to employees of PGIC Contractor shall be responsible for any COBRA payments he may\nincur for maintaining health insurance.\nContractor's Financial Obligations. Contractor shall have full responsibility for the payment of all federal, state and local\ntaxes and contributions, including penalties and interest, imposed pursuant to unemployment insurance, social security,\nD.\nincome tax, gross income tax, workmen's compensation or any other similar statute, and Contractor shall be solely\nresponsible for any liability to third parties resulting from the negligent or intentional acts or omissions of Contractor,\nits\nrepresentatives, agents, employees or subcontractors arising from or occurring in the course of the Work.\nE.\nPayment Procedure. Contractor shall be paid Compensation every two weeks in accordance with Company's customary\npaydays.\nTerm. The term of this A greement shall be one (1) year (the "Term"). Company may terminate this A greement at any time\nfor any reason or no reason at all. In the event PGIC terminates this greement without cause, Contractor shall be entitled to\nreceive the Compensation for the remaining duration of the original Term. Contractor reserves the right to terminate this\nF.\nAgreement at any time upon thirty (30) days written notice to PGIC with no further liability or obligation to either party.\nNotwithstanding anything to the contrary in this A greement, PGIC shall have the sole and exclusive right and option to\nterminate this A greement by written notice to Contractor, and thereupon this A greement shall terminate and become void\nand there shall be no liability on the part of either party (excepting only any provision of this A greement which provides for\nits survival upon any termination of this A greement), upon the occurrence of any of the following "for cause" events:\nContractor's failure to timely apply for, obtain and/or maintain any and all licenses, permits, approvals and\n1) authorizations from any Regulator necessary for Contractor to perform the obligations and duties of this Agreement\nand/or to comply with applicable laws;\n2)\nA final order in writing by any Regulator requiring the termination of this greement;\nThe reasonable belief of PGIC that the continuation of this A greement will have a detrimental impact on the ability of\n3)\nPGIC or its parent, subsidiaries or affiliates to be qualified or to hold or maintain any license, permit, approval or\nauthorization issued or to be granted by any Regulator;\nThe commission of any act or anything that is or shall be an offense involving moral turpitude under federal, state or\n4) local laws, or which brings Contractor into public disrepute, contempt, scandal or ridicule, or which insults or offends\nthe community;\n2\n5)\nBreach of any of the confidentiality or non-disparagement provisions of this Agreement; or\n6) Disapproval of this Agreement by any Regulator having jurisdiction over such matters.\nRight to Withhold Payments. Regardless of whether PGIC withholds payments, Contractor shall have the obligation to\nconvey to PGIC all Work, including all source code, plans, records, drawings, reports and writings of any kind (if any) for\nG.\nthe Work. In addition to its right to withhold payments, PGIC may withhold any payment in whole or part to protect itself\nfrom or in the event of (i) defective Nork, (ii) third-party claims arising from Contractor's performance of the Work,\n(iii) failure of Contractor to make payments properly to any of its subcontractors, (iv) evidence of fraud, over-billing or\noverpayment discovered upon audit, or (v) unsatisfactory or untimely performance of the Work.\nIndependent Contractor Relationship. Contractor and PGIC understand, acknowledge and agree that Contractor's relationship\nwith PGIC will be that of an independent contractor and nothing in this A greement is intended to or should be construed to create a\npartnership, joint venture, or employment relationship. Contractor further represents that Contractor meets the requirements of an\n3. Independent Contractor as set forth in Internal Revenue Service Revenue Ruling 87-41. Further, Contractor shall not have any\nauthority to act, or attempt to act, or represent itself, directly or by implication, as an agent of PGIC or in any manner assume or\ncreate, or attempt to assume or create, any obligation on behalf of or in the name of PGIC, except as provided by PGIC, nor will\neither be deemed the agent, representative or employee of the other.\n4. Trade Secrets Intellectual Property Rights.\nDisclosure of Inventions. Contractor agrees to disclose promptly in writing to PGIC, or any person designated by PGIC,\nevery invention, including but not limited to computer programs, processes, know-how and other copyrightable and/or\npatentable material, which is conceived, made or reduced to practice by Contractor within the scope of the Work under this\nA greement. Contractor represents that Contractor's performance of all of the terms of this Agreement does not and will not\nA.\nbreach any agreement to keep in confidence proprietary information, knowledge or data of any third party and Contractor\nwill not disclose to PGIC, or induce PGIC to use, any confidential or proprietary information belonging to third parties\nunless such use or disclosure is authorized in writing by such owners. Contractor shall retain title to any prior works\nbelonging to Contractor, and to that extent Contractor represents that no property, inventions or copyrighted works\nbelonging to Contractor have been incorporated into the Work. If Contractor has incorporated any property of Contractor's\ninto the Work, such previously owned property is hereby transferred to PGIC.\nB. Non-Disclosure of Confidential Information.\nContractor agrees, during the Term and forever thereafter, to keep confidential all information provided by PGIC\n(excepting only such information as is already known to the public, without breach of this greement), and including\nany such information and material relating to any customer, vendor, licensor, licensee, or other party transacting\nbusiness with PGIC, and not to release, use or disclose the same except with the prior written permission of PGIC.\n1) Contractor recognizes and acknowledges that the list of PGIC's customers and clients, as it may exist from time to time,\nand PGIC's financial information, are valuable, confidential, special, and unique assets and trade secrets of PGIC's\nbusiness. Contractor will not during or after the Term, disclose the list of PGIC's customers and/or clients, or PGIC's\nfinancial information, or any part thereof, or any other trade secret, to any person, firm, corporation, association or\nother entity for any reason or purpose whatsoever.\n2) Contractor further agrees to consider all specific software, company and personal data,\n3\nregulatory data and information, investigative data and information, artwork and art techniques, programming\ntechniques, project concepts, planned projects, story concepts, game concepts, toys, models, drawings, photographs,\nanimation, cinematography, video, marketing strategies, planned projects, unique hardware, hardware concepts,\nhardware designs, terms of agreements with third parties, methods or techniques for acquiring materials for various\nprojects, data search and retrieval systems, computer processing systems and techniques, systems design, project\ndesign, routine design, algorithms of any sort, programming of any sort, interface design, layout or writing, operating\ninstructions, or any other type of work or intellectual property in any language, on any platform, for any operating\nsystem, in any medium whatsoever, to be confidential information, trade secrets and the exclusive property of PGIC\nwhich will not be converted or disclosed to anyone for any purpose whatsoever. All records, files, memoranda, reports,\nprice lists, customer lists drawings, plans, sketches, documents, equipment, and the like, relating to the business of\nPGIC, which Contractor shall use or prepare or come into contact with, shall remain the sole property and trade secret\nof PGIC. ny property described or mentioned in this section is jointly or separately referred to as the "Intellectual\nProperty" in this A greement. Any material, document, data, plan, information, report memorandum or writing of any\nkind whatsoever, in any media whatsoever, described or mentioned in this section is jointly or separately referred to as\nthe "Confidential Information" in this A greement. Those items constituting Intellectual Property may also constitute\nConfidential Information, and vice versa.\nContractor agrees that any information that is in the nature of Confidential Information defined in this section that\n3)\neither party receives from any third party and/or which either party is bound, contractually, or by common custom or\nusage in trade to keep in confidence shall also be considered "Confidential Information" by both parties.\nContractor agrees to use the Intellectual Property and/or Confidential Information solely to perform the project\n4)\nhereunder pursuant to the terms of this greement. Contractor's obligations with respect to the Intellectual Property and\nConfidential Information also extend to any third party's proprietary or confidentia information disclosed to Contractor\nin the course of providing services to PGIC.\nContractor will hold all Confidential Information in trust and confidence. Contractor agrees to take (and to fully\ncooperate with PGIC in undertaking) any reasonable steps necessary to protect the Confidential Information from any\n5)\ndisclosure whatsoever. Contractor agrees to require any employee, officer, director, agent or subcontractor who\nperforms work or services pursuant to this A greement to become bound by the provisions of this A greement.\nContractor shall provide adequate evidence that such persons are Contractor's employees.\nContractor recognizes that the disclosure of Confidentia Information or trade secrets by Contractor may give rise to\nirreparable injury to PGIC, which may not be adequately compensated by damages. A ccordingly, in the event of a\nbreach or threatened breach by Contractor of any provision of this section, PGIC shall be entitled to an injunction\n6)\nrestraining Contractor from disclosing, in whole or in part, the Confidential Information defined in this section, or from\nrendering any services to any person, firm, corporation, association or other entity to whom such Confidential\nInformation, in whole or in part has been disclosed or is threatened to be disclosed. Nothing herein shall be construed\nas prohibiting PGIC from pursuing any other remedies available to PGIC for such breach or threatened breach,\nincluding the recovery of damages from Contractor.\nThe undertakings set forth in this section shall survive the termination or cancellation of this A greement.\nC.\nNo Conflict of Interest. Contractor agrees during the Term of this Agreement not to accept work or enter into a contract or accept\nan obligation inconsistent or incompatible with Contractor's\n4\nobligations or the scope of services rendered for PGIC under this greement. Contractor is required to disclose any outside\nactivities or interests, including ownership or participation in the development of prior inventions, that conflict or may conflict with\nthe best interests of PGIC. Prompt disclosure is required under this paragraph if the activity or interest is related, directly or\nindirectly, to: a product or product line of PGIC, a manufacturing process of PGIC, or any activity that Contractor may be involved\nwith on behalf of PGIC. In the interests of full disclosure, the parties acknowledge and understand Contractor will be performing\ncontracting services for Global Gaming Group and TableMax among others, and it is hereby agreed that the provision of such\nservices presents no conflict of interest with PGIC. To the extent that a potential conflict should arise between any of these parties,\nContractor agrees to take all necessary steps to avoid the occurrence of same, including the termination of this or another agreement\nas warranted.\nD. ssignment of Inventions.\nInventions resulting from the Work (or that of Contractor's directors, officers, agents, subcontractors or employees) under\nthis A greement are the exclusive property of PGIC. "Inventions" includes any and all inventions, improvements,\n1)\ndiscoveries, and technical developments that Contractor, solely or jointly with others, conceives, makes, or reduces to\npractice within the scope of the Work. Contractor hereby assigns to PGIC Contractor's entire right, title and interest in the\nInventions worldwide and any associated intellectual property rights and agrees to execute any and all documentation\nrequested by PGIC to effect such assignment.\nContractor agrees to assist PGIC in any reasonable manner to obtain and enforce for PGIC's benefit, patents, copyrights,\nand other property rights covering the Inventions in any and all countries, and Contractor agrees to execute, when requested,\npatent, copyright or similar applications and assignments to PGIC and any other lawful documents deemed necessary by\n2)\nPGIC to carry out the purpose of this greement. Contractor further agrees that the obligations and undertaking stated in\nthis paragraph will continue beyond the termination of Contractor's service to PGIC If called upon to render assistance\nunder this paragraph, other than the execution of documents, Contractor will be entitled to a fair and reasonable fee for\nproviding such assistance.\nIn the event that PGIC is unable for any reason whatsoever to secure Contractor's signature to any lawful and necessary\ndocument required to apply for or execute any patent, copyright or other applications with respect to any Inventions\n(including improvements, renewals, assignments, extensions, continuations, divisions, amendments or continuations in part\n3)\nthereof), Contractor hereby irrevocably designates and appoints PGIC and its duly authorized officers and agents as\nContractor's agents and attomeys-in-fact to act for and in Contractor's behalf and instead of Contractor, to execute and file\nany such application and to do all other lawfully permitted acts to further the prosecution and issuance of patents, copyrights\nor other rights thereon with the same legal force and effect as if executed by Contractor Contractor is entitled to keep and\nretain Contractor's own tools, equipment and material provided and owned by Contractor.\nReturn of PGIC'S Property. Contractor acknowledges that PGIC's sole and exclusive property includes, among other things, all\ndocuments, such as drawings, manuals, notebooks, reports, sketches, records, computer programs, employee lists, software,\nhardware, videotapes, audiotapes, customer lists and the like in Contractor's custody, control or possession, whether delivered to\nE. Contractor by PGIC or made by Contractor in the performance of services under this greement, relating to the business activities\nof PGIC or its customers or suppliers and containing any information or data whatsoever, whether or not Confidentia Information.\nContractor agrees to deliver promptly to PGIC upon termination of this A greement or at any other time upon PGIC's request all of\nPGIC's property and all copies of PGIC's property in Contractor's possession,\n5\ncustody or control.\nWorks Made For Hire. All Work performed by Contractor while performing services for PGIC (during business hours or not) in\nany language, on any platform, for any operating system, in any media or in any form whatsoever (including but not limited to any\nof\nthe\nIntellectual\nProperty),\nshall\nbe\ndeemed\nto\nhave\nbeen\ndone\nupon\nthe\ncommission\nof\nand\nat\nthe\ninstruction\nof\nPGIC,\nshall\nbe\na\n"Work Made for Hire" within the meaning of the Copyright shall be the property of PGIC and may not be used by Contractor\nfor any purpose except the benefit of PGIC. Any and all such property shall be forthwith delivered to PGIC upon the PGIC 's\n5. request. Contractor agrees that each of Contractor's own employees, officers, directors, subcontractors and agents are performing\n"Works Made for Hire" for PGIC, and Contractor agrees to cause each of its employees, subcontractors or agents engaged in any\nproject or work for PGIC to sign valid written agreements that such work is being performed as a "Work Made for Hire" for PGIC.\nFurthermore, Contractor agrees to sign and to cause each of its employees, agents and subcontractors engaged in any project or\nwork for PGIC to sign written agreements acknowledging that such work is owned by PGIC and agreeing to execute a "quitclaim\nassignment" for such work to PGIC.\nContractor's Cooperation in Establishing wnership. Contractor shall, from time to time as may be requested by PGIC, do all\nthings that may be necessary to establish or document PGIC 's ownership of any work or work product that is properly the Property\nof PGIC, including, but not limited to execution of appropriate copyright applications, copyright assignments, transfers, sales,\n6.\nreleases or any and all other documents or writings. Contractor hereby waives any power Contractor may have to control, cause to\nmodify or otherwise effect the Intellectual Property, and hereby transfers all such powers, including but not limited to any powers\nof Droit Morale, to PGIC. Contractor hereby irrevocably appoints PGIC as Contractor's attorney in fact empowered solely to\nexecute any documents necessary to establish PGIC's ownership rights, rights to maintain, rights to defend and rights to control any\nof the Intellectual Property and/or Confidential Property.\nAdditional Compensation. Other than Contractor's stated compensation, neither Contractor nor its employees, subcontractors,\nofficers, directors or agents is entitled to receive any additional compensation from PGIC (including but not limited to royalties or\nfees) as a result of any work performed, concepts developed, ideas submitted, or other efforts made while a Contractor of PGIC\nexcept to the extent such further compensation is set forth in a formal written agreement. Other than as provided by any formal\n7. written agreement Contractor acknowledges that Contractor has no propriety or ownership interest in PGIC, or any related entities,\nand will not receive any such interest. Unless stated in a separate written agreement, Contractor is not entitled to any equity interest\nin PGIC. Neither Contractor nor any of Contractor's officers, agents, directors or employees is entitled to any employment benefits\nfrom PGIC, including but not limited to insurance, pensions, paid holidays, vacations, sick leave, paid time off or profit sharing\nexcept as set forth in written agreement.\nNon-Disparagement Neither party shall make any remarks or issue any communication, written or otherwise, that disparages or\nderogates, or encourages any adverse action against the other party or any of its affiliates, officers, directors, employees or agents,\n8. provided that this paragraph shall not preclude Contractor from testifying truthfully under oath, pursuant to subpoena or otherwise,\nas to his first-hand knowledge, or from providing his first-hand knowledge to any governmental, regulatory or self-regulatory body\nor agency with jurisdiction over PGIC's activities.\nNoninterference with Business. During the Term of this A greement and for a period of two (2) years immediately following\n9.\ntermination of this A greement Contractor agrees not to solicit or induce any employee or independent contractor, or other\nperson(s) to terminate or breach, or cause to terminate or breach any employment relationship, contractual relationship or other\nrelationship with PGIC.\n6\n100 ontractor's Representations, Warranties And Indemnification.\nContractor's Warranties. In addition to other representations and warranties provided for herein, Contractor represents\nA.\nand warrants to PGIC that:\n1) Contractor is the sole and exclusive supplier of the Work performed by Contractor;\nWith respect to the Work, and any materials pertaining thereto that Contractor discloses, uses, assigns and/or delivers in\n2)\nthe performance of its obligations hereunder, Contractor has the right to make such disclosure, use, and/or delivery\nthereof without liability to any third party;\n3)\nThe performance of the terms of this A greement and of Contractor's obligation hereunder will not breach any separate\nagreement by which Contractor is bound;\n4)\nContractor has not previously granted any rights in and to the Work to any third party that are inconsistent with any of\nPGIC's licenses and/or rights hereunder;\n5) Contractor has full power and authority to enter into this A greement and to fulfill its obligations hereunder;\n6) Contractor is legally competent to sign this Agreement;\nContractor warrants and represents to PGIC that all acts, duties and obligations required of it under this greement\n7)\nshall be performed in good faith; and\n8)\nContractor agrees to fully cooperate with any legitimate investigation of Company and to produce any materials or\ndocuments requested by regulatory authorities.\nContractor hereby agrees to employ only persons who are previously approved by PGIC in writing and who are legally\n9)\nauthorized to work in the jurisdictions where Work is to be performed and to have appropriate employment\nauthorization forms, if required, for each person employed by it.\nContractor's Indemnification. Contractor agrees to indemnify and hold harmless PGIC and its customers, affiliates and/or\nsub-licensees and end-users from and against any and all claims, losses, liabilities, damages, expenses and costs (including\nattorneys and defense costs) and judgments that may be asserted against PGIC that result from the acts or omissions of\nContractor, Contractor's employees, if any, and Contractor's agents, and/or which result from a breach of any of the\nwarranties expressly set forth in this A greement, or incurred in the settlement or avoidance of any such matter. As a\nB. condition to indemnification, PGIC will promptly inform Contractor in writing of the assertion of any such claim, demand\nor suit, and the parties will cooperate with and assist one another with respect to the defense and/or settlement of such\nmatter (in a manner consistent with the parties' respective confidentiality obligations and desired preservation of\nattorney/client, work product and other privileges). Contractor hereby confirms that Contractor will not agree to the\nsettlement of any such claim, demand or suit prior to judgment thereon by any court of competent jurisdiction unless\nPGIC's written consent is first obtained, which consent will not be unreasonably withheld or delayed.\n1PGIC'S Warranties, Representation and Indemnification:\nA. PGIC'S Warranties: PGIC represents and warrants to Contractor that:\n1) PGIC possesses full power and authority to enter into this A greement and to fulfill its obligations hereunder;\n2)\nThe performance of the terms of this A greement and of PGIC's obligations hereunder will not breach any separate\nagreement by which PGIC is bound;\n3)\nPGIC warrants and represents to Contractor that all acts, duties and obligations required of it under this A greement\nshall be performed in good faith.\nB.\nPGIC'S Indemnity: PGIC agrees to indemnify and hold harmless Contractor from and against\nD\nany and all claims, losses, liabilities, damages, expenses and costs (including attorneys fees and defense costs) which result\nfrom a breach of any of the warranties expressly set forth in this A greement, or incurred in the settlement or avoidance of\nany such matter, or which are incurred in the course of PGIC's activities in connection with this greement unless such\nmatters are the fault of Contractor. As a condition to indemnification, Contractor will promptly inform PGIC in writing of\nthe assertion of any such claim, demand or suit, and the parties will cooperate with and assist one another with respect to the\ndefense and/or settlement of such matter (consistent with the parties' respective confidentiality obligations and preservation\nof attorney/client, work product and other privileges). PGIC hereby confirms that it will not agree to the settlement of any\nsuch claim, demand or suit prior to judgment thereon by any court of competent jurisdiction unless Contractor's consent is\nfirst obtained, which consent will not be unreasonably withheld or delayed.\n12G eneral Provisions:\nGoverning Law: This greement will be governed by and construed in accordance with the laws of the United States and\nthe State of Nevada applied to agreements entered into and to be performed entirely within Nevada between Nevada\nA.\nresidents. Contractor and PGIC further agree that for purposes of venue and jurisdiction, that any disputes, issues,\nenforcement and/or all other matters concerning the A greement will be determined in Clark County, State of Nevada,\nUnited States of America. The parties expressly waive any other jurisdiction to which they might be entitled as a result of\ntheir present or future domicile or for any other reason.\nCompliance with Laws: In the performance of the Work, Contractor shall comply with all applicable laws, rules and\nregulations, including but not limited to all requirements and provisions of the laws and regulations of the United States, the\nB.\nStates and subdivisions thereof in which PGIC or any of PGIC's subsidiaries or affiliates (regardless of when or how\nformed) carry on their business and all general rules regulations and ethical standards of national, State and local agencies\nand regulatory and advisory groups having jurisdiction over any business of PGIC or any of PGIC's subsidiaries or affiliates\n(regardless of when or how formed) as they exist now and as same may be amended from time to time.\nRequlatory Matters: PGIC, its parent corporation and certain related entities are licensed by or otherwise subject to the\nauthority of various casino and gaming regulatory agencies ("Regulator"). PGIC has adopted a regulatory compliance\nC.\npolicy, and Contractor agrees to provide PGIC with such documentation, information and assurances regarding itself, any\nprincipal employees, brokers, agents or others where applicable as may be necessary in order for PGIC to comply with\nPGIC'S regulatory compliance policy and with the request of any Regulator. The foregoing shall be a material obligation of\nContractor hereunder.\nInjuries: Contractor acknowledges Contractor's obligation to obtain appropriate insurance coverage for the benefit of\nD.\nContractor (and Contractor's employees, if any). Contractor waives any rights to recovery from PGIC for any injuries that\nContractor (and/or Contractor's employees) may sustain while performing services under this A greement and that are a\nresult of the negligence of Contractor or Contractor's employees.\nEntire Agreement Modification: This Agreement, including all Exhibits to this Agreement, constitute the entire\nE.\nagreement between the parties relating to this subject matter and supersedes all prior or simultaneous representations\ndiscussions, negotiations, and agreements, whether written or oral. ny and all amendments, changes, revisions, and/or\nmodifications to this greement must be in writing signed by Contractor and PGIC.\n8\nWaiver: No term or provision hereof will be considered waived by either party, and no breach excused by either party,\nF.\nunless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by\neither party to, or waiver of, a breach by either party, whether express or implied, will constitute a consent to, waiver of, or\nexcuse of any other, different, or subsequent breach by either party.\nSuccessors and Assigns: Contractor may not assign its rights or obligations arising under this Agreement without PGIC's\nprior written consent. PGIC may assign its rights and obligations under this A greement. This A greement will be for the\nG.\nbenefit of PGIC's successors and assigns, and will be binding on Contractor's heirs, legal representatives and permitted\nassignees.\nLegal Fees: If any dispute arises between the parties with respect to the matters covered by this A greement which leads to a\nproceeding to resolve such dispute, the prevailing party in such proceeding shall be entitled to receive its reasonable\nH.\nattorneys' fees, expert witness fees and out-of-pocket costs incurred in connection with such proceeding, in addition to any\nother relief to which it may be entitled, including but not limited to equitable relief such as restraining orders and\ninjunctions.\nNotices: All notices, requests and other communications required to be given under this A greement must be in writing, and\nmust be mailed by registered or certified mail, postage prepaid and return receipt requested, or delivered by hand to the\nI.\nparty\nto whom such notice is required or permitted to be given. Any such notice will be considered to have been given when\nreceived, or if mailed, five (5) business days after it was mailed, as evidenced by the postmark. The mailing address for\nnotice to either party will be the address shown on the face page of this A greement. Either party may change its mailing\naddress by notice as provided by this Section.\nSeverability: Should any term, condition, or provision herein be determined to be unenforceable, such determination shall\nJ.\nnot impair, limit, or otherwise affect the enforceability of the remaining terms of this greement.\nK.\nWaiver. Failure of either party to insist on strict performance shall not constitute a waiver of any of the provisions of this\ngreement or a waiver of any default of the other party.\nL.\nSurvival: The following provisions shall survive termination of this greement: Section IV, Section 5, Section 6, and\nSection 9.\nMIKOHN GAMING\nMichael F. Dreitzer, an individual\nCORPORATION, a\nNevada corporation, doing business\nas\nPROGRESSIVE GAMING\nINTERNATIONAL\nCORPORATION\nBy: /s/ Michael A. Sicuro\nMichael F. Dreitzer\nNameMichael A. Sicuro\nNamichael F. Dreitzer\ntle:Executive Vice President & CFO\nDate:\nDate:\n9	Exhibit 10.19\nCONSULTING AND CONFIDENTIALITY AGREEMENT\nThis Consulting and Confidentiality Agreement (this “Agreement”) is entered into as of September 19, 2005 and has an effective date\nof September 19, 2005, and is by and between by and between MIKOHN GAMING CORPORATION, a Nevada corporation and\nits subsidiaries and affiliates doing business as PROGRESSIVE GAMING INTERNATIONAL CORPORATION (“PGIC”) with\nits principal place of business located at 920 Pilot Road, Las Vegas, Nevada 89119, and Michael F. Dreitzer, an individual\n(“Contractor”).\nWHEREAS, PGIC desires to engage a contractor for the performance of certain services; and\nWHEREAS, Contractor desires to perform such services for PGIC.\nNOW THEREFORE, for valuable consideration, the receipt of which is hereby acknowledged, the parties hereby agree as follows:\n1. Engagement of Services.\nA.\nPGIC hereby engages Contractor to perform the services described in this Agreement, and Contractor agrees to perform\nservices for PGIC as follows: Provide PGIC with consulting services for up to 40 hours per month during the Term (as\ndefined below) with regard to PGIC’s regulatory matters, and with any additional assignments and tasks as shall be assigned\nto Contractor by PGIC (the “Work,” which shall also include any services, material, output, work, or work product arising\nout of this Agreement or produced in connection with this Agreement).\nB.\nTime is of the essence. The Work shall be performed in a good, workman-like manner in accordance with the standards of\nContractor’s profession and such other accepted standards as may be applicable to Work of this kind. Contractor shall\ndevote the necessary time and attention to the Work as is reasonably required to diligently, timely, efficiently, and\nprofessionally complete the Work no later than the time necessary or required by deadlines.\nC.\nAll Work must meet with PGIC’s approval, which is to be determined in PGIC’s sole discretion, which discretion shall not\nto be unreasonably withheld.\nD.\nPGIC specifically selected Contractor to perform the Work based upon PGIC receiving Contractor’s personal service and\ntherefore Contractor may not subcontract or otherwise delegate its obligations under this Agreement without PGIC’s prior\nwritten consent and any attempted assignment contrary to this provision shall be void.\nE.\nContractor acknowledges that PGIC does business in a highly regulated gaming industry and that certain suitability\nrequirements for Contractor must be strictly met in order to perform its Services for PGIC. Accordingly, Contractor shall\nsubmit to all PGIC requested screening, including but not limited to any or all of the following; alcohol & substance abuse\nscreening, fingerprinting, personal history (including criminal background) and/or personal financial disclosures\n(collectively, “Prerequisite Screening”). The Prerequisite Screening is a condition precedent to this Agreement and/or\nperforming any Work under this Agreement. Contractor further agrees to execute any and all releases for PGIC to complete\nthe Prerequisite Screening. Should Contractor not successfully complete and/or pass the Prerequisite Screening or any later\nscreenings, this Agreement shall be immediately terminated without any liability to PGIC or Contractor\n1\n2. Compensation and Term.\nA.\nFees. PGIC will pay Contractor for complete and full performance for all Work specified in this Agreement and for all\nrelated tasks the amount of Six Thousand Five Hundred and 00/100 U.S. Dollars ($6,500.00) per month (“Compensation”).\nThe Compensation is inclusive of any federal, state, municipal and other governmental taxes, franchise, sales, use, or other\ntaxes (included but not limited to value added taxes) now or hereafter imposed on the Contractor by any tax authority.\nB.\nExpenses. Contractor will be reimbursed pursuant to PGIC’s standard policy as may be modified from time to time at\nPGIC’s sole discretion for any reasonable expenses incurred in connection with the performance of the Work. All expenses\nmust be pre-approved by PGIC, and Contractor shall keep full and accurate records and documentation to substantiate the\namounts claimed in any invoice, which records shall be made available to PGIC for inspection at all times.\nC.\nBenefits. During the Term of this Agreement PGIC shall provide Contractor with mobile phone, handheld email and email\nservice similar to that provided to employees of PGIC. Contractor shall be responsible for any COBRA payments he may\nincur for maintaining health insurance.\nD.\nContractor’s Financial Obligations. Contractor shall have full responsibility for the payment of all federal, state and local\ntaxes and contributions, including penalties and interest, imposed pursuant to unemployment insurance, social security,\nincome tax, gross income tax, workmen’s compensation or any other similar statute, and Contractor shall be solely\nresponsible for any liability to third parties resulting from the negligent or intentional acts or omissions of Contractor, its\nrepresentatives, agents, employees or subcontractors arising from or occurring in the course of the Work.\nE.\nPayment Procedure. Contractor shall be paid Compensation every two weeks in accordance with Company’s customary\npaydays.\nF.\nTerm. The term of this Agreement shall be one (1) year (the “Term”). Company may terminate this Agreement at any time\nfor any reason or no reason at all. In the event PGIC terminates this Agreement without cause, Contractor shall be entitled to\nreceive the Compensation for the remaining duration of the original Term. Contractor reserves the right to terminate this\nAgreement at any time upon thirty (30) days written notice to PGIC with no further liability or obligation to either party.\nNotwithstanding anything to the contrary in this Agreement, PGIC shall have the sole and exclusive right and option to\nterminate this Agreement by written notice to Contractor, and thereupon this Agreement shall terminate and become void\nand there shall be no liability on the part of either party (excepting only any provision of this Agreement which provides for\nits survival upon any termination of this Agreement), upon the occurrence of any of the following “for cause” events:\n1)\nContractor’s failure to timely apply for, obtain and/or maintain any and all licenses, permits, approvals and\nauthorizations from any Regulator necessary for Contractor to perform the obligations and duties of this Agreement\nand/or to comply with applicable laws;\n2) A final order in writing by any Regulator requiring the termination of this Agreement;\n3)\nThe reasonable belief of PGIC that the continuation of this Agreement will have a detrimental impact on the ability of\nPGIC or its parent, subsidiaries or affiliates to be qualified or to hold or maintain any license, permit, approval or\nauthorization issued or to be granted by any Regulator;\n4)\nThe commission of any act or anything that is or shall be an offense involving moral turpitude under federal, state or\nlocal laws, or which brings Contractor into public disrepute, contempt, scandal or ridicule, or which insults or offends\nthe community;\n2\n5) Breach of any of the confidentiality or non-disparagement provisions of this Agreement; or\n6) Disapproval of this Agreement by any Regulator having jurisdiction over such matters.\nG.\nRight to Withhold Payments. Regardless of whether PGIC withholds payments, Contractor shall have the obligation to\nconvey to PGIC all Work, including all source code, plans, records, drawings, reports and writings of any kind (if any) for\nthe Work. In addition to its right to withhold payments, PGIC may withhold any payment in whole or part to protect itself\nfrom or in the event of (i) defective Work, (ii) third-party claims arising from Contractor’s performance of the Work,\n(iii) failure of Contractor to make payments properly to any of its subcontractors, (iv) evidence of fraud, over-billing or\noverpayment discovered upon audit, or (v) unsatisfactory or untimely performance of the Work.\n3.\nIndependent Contractor Relationship. Contractor and PGIC understand, acknowledge and agree that Contractor’s relationship\nwith PGIC will be that of an independent contractor and nothing in this Agreement is intended to or should be construed to create a\npartnership, joint venture, or employment relationship. Contractor further represents that Contractor meets the requirements of an\nIndependent Contractor as set forth in Internal Revenue Service Revenue Ruling 87-41 . Further, Contractor shall not have any\nauthority to act, or attempt to act, or represent itself, directly or by implication, as an agent of PGIC or in any manner assume or\ncreate, or attempt to assume or create, any obligation on behalf of or in the name of PGIC, except as provided by PGIC, nor will\neither be deemed the agent, representative or employee of the other.\n4. Trade Secrets — Intellectual Property Rights.\nA.\nDisclosure of Inventions. Contractor agrees to disclose promptly in writing to PGIC, or any person designated by PGIC,\nevery invention, including but not limited to computer programs, processes, know-how and other copyrightable and/or\npatentable material, which is conceived, made or reduced to practice by Contractor within the scope of the Work under this\nAgreement. Contractor represents that Contractor’s performance of all of the terms of this Agreement does not and will not\nbreach any agreement to keep in confidence proprietary information, knowledge or data of any third party and Contractor\nwill not disclose to PGIC, or induce PGIC to use, any confidential or proprietary information belonging to third parties\nunless such use or disclosure is authorized in writing by such owners. Contractor shall retain title to any prior works\nbelonging to Contractor, and to that extent Contractor represents that no property, inventions or copyrighted works\nbelonging to Contractor have been incorporated into the Work. If Contractor has incorporated any property of Contractor’s\ninto the Work, such previously owned property is hereby transferred to PGIC.\nB. Non-Disclosure of Confidential Information.\n1)\nContractor agrees, during the Term and forever thereafter, to keep confidential all information provided by PGIC\n(excepting only such information as is already known to the public, without breach of this Agreement), and including\nany such information and material relating to any customer, vendor, licensor, licensee, or other party transacting\nbusiness with PGIC, and not to release, use or disclose the same except with the prior written permission of PGIC.\nContractor recognizes and acknowledges that the list of PGIC’s customers and clients, as it may exist from time to time,\nand PGIC’s financial information, are valuable, confidential, special, and unique assets and trade secrets of PGIC’s\nbusiness. Contractor will not, during or after the Term, disclose the list of PGIC’s customers and/or clients, or PGIC’s\nfinancial information, or any part thereof, or any other trade secret, to any person, firm, corporation, association or\nother entity for any reason or purpose whatsoever.\n2) Contractor further agrees to consider all specific software, company and personal data,\n3\nregulatory data and information, investigative data and information, artwork and art techniques, programming\ntechniques, project concepts, planned projects, story concepts, game concepts, toys, models, drawings, photographs,\nanimation, cinematography, video, marketing strategies, planned projects, unique hardware, hardware concepts,\nhardware designs, terms of agreements with third parties, methods or techniques for acquiring materials for various\nprojects, data search and retrieval systems, computer processing systems and techniques, systems design, project\ndesign, routine design, algorithms of any sort, programming of any sort, interface design, layout or writing, operating\ninstructions, or any other type of work or intellectual property in any language, on any platform, for any operating\nsystem, in any medium whatsoever, to be confidential information, trade secrets and the exclusive property of PGIC\nwhich will not be converted or disclosed to anyone for any purpose whatsoever. All records, files, memoranda, reports,\nprice lists, customer lists, drawings, plans, sketches, documents, equipment, and the like, relating to the business of\nPGIC, which Contractor shall use or prepare or come into contact with, shall remain the sole property and trade secret\nof PGIC. Any property described or mentioned in this section is jointly or separately referred to as the “Intellectual\nProperty” in this Agreement. Any material, document, data, plan, information, report, memorandum or writing of any\nkind whatsoever, in any media whatsoever, described or mentioned in this section is jointly or separately referred to as\nthe “Confidential Information” in this Agreement. Those items constituting Intellectual Property may also constitute\nConfidential Information, and vice versa.\n3)\nContractor agrees that any information that is in the nature of Confidential Information defined in this section that\neither party receives from any third party and/or which either party is bound, contractually, or by common custom or\nusage in trade to keep in confidence shall also be considered “Confidential Information” by both parties.\n4)\nContractor agrees to use the Intellectual Property and/or Confidential Information solely to perform the project\nhereunder pursuant to the terms of this Agreement. Contractor’s obligations with respect to the Intellectual Property and\nConfidential Information also extend to any third party’s proprietary or confidential information disclosed to Contractor\nin the course of providing services to PGIC.\n5)\nContractor will hold all Confidential Information in trust and confidence. Contractor agrees to take (and to fully\ncooperate with PGIC in undertaking) any reasonable steps necessary to protect the Confidential Information from any\ndisclosure whatsoever. Contractor agrees to require any employee, officer, director, agent or subcontractor who\nperforms work or services pursuant to this Agreement to become bound by the provisions of this Agreement.\nContractor shall provide adequate evidence that such persons are Contractor’s employees.\n6)\nContractor recognizes that the disclosure of Confidential Information or trade secrets by Contractor may give rise to\nirreparable injury to PGIC, which may not be adequately compensated by damages. Accordingly, in the event of a\nbreach or threatened breach by Contractor of any provision of this section, PGIC shall be entitled to an injunction\nrestraining Contractor from disclosing, in whole or in part, the Confidential Information defined in this section, or from\nrendering any services to any person, firm, corporation, association or other entity to whom such Confidential\nInformation, in whole or in part, has been disclosed or is threatened to be disclosed. Nothing herein shall be construed\nas prohibiting PGIC from pursuing any other remedies available to PGIC for such breach or threatened breach,\nincluding the recovery of damages from Contractor.\nThe undertakings set forth in this section shall survive the termination or cancellation of this Agreement.\nC.\nNo Conflict of Interest. Contractor agrees during the Term of this Agreement not to accept work or enter into a contract or accept\nan obligation inconsistent or incompatible with Contractor’s\n4\nobligations or the scope of services rendered for PGIC under this Agreement. Contractor is required to disclose any outside\nactivities or interests, including ownership or participation in the development of prior inventions, that conflict or may conflict with\nthe best interests of PGIC. Prompt disclosure is required under this paragraph if the activity or interest is related, directly or\nindirectly, to: a product or product line of PGIC, a manufacturing process of PGIC, or any activity that Contractor may be involved\nwith on behalf of PGIC. In the interests of full disclosure, the parties acknowledge and understand Contractor will be performing\ncontracting services for Global Gaming Group and TableMax among others, and it is hereby agreed that the provision of such\nservices presents no conflict of interest with PGIC. To the extent that a potential conflict should arise between any of these parties,\nContractor agrees to take all necessary steps to avoid the occurrence of same, including the termination of this or another agreement\nas warranted.\nD. Assignment of Inventions.\n1)\nInventions resulting from the Work (or that of Contractor’s directors, officers, agents, subcontractors or employees) under\nthis Agreement are the exclusive property of PGIC. “Inventions” includes any and all inventions, improvements,\ndiscoveries, and technical developments that Contractor, solely or jointly with others, conceives, makes, or reduces to\npractice within the scope of the Work. Contractor hereby assigns to PGIC Contractor’s entire right, title and interest in the\nInventions worldwide and any associated intellectual property rights, and agrees to execute any and all documentation\nrequested by PGIC to effect such assignment.\n2)\nContractor agrees to assist PGIC in any reasonable manner to obtain and enforce for PGIC’s benefit, patents, copyrights,\nand other property rights covering the Inventions in any and all countries, and Contractor agrees to execute, when requested,\npatent, copyright or similar applications and assignments to PGIC and any other lawful documents deemed necessary by\nPGIC to carry out the purpose of this Agreement. Contractor further agrees that the obligations and undertaking stated in\nthis paragraph will continue beyond the termination of Contractor’s service to PGIC. If called upon to render assistance\nunder this paragraph, other than the execution of documents, Contractor will be entitled to a fair and reasonable fee for\nproviding such assistance.\n3)\nIn the event that PGIC is unable for any reason whatsoever to secure Contractor’s signature to any lawful and necessary\ndocument required to apply for or execute any patent, copyright or other applications with respect to any Inventions\n(including improvements, renewals, assignments, extensions, continuations, divisions, amendments or continuations in part\nthereof), Contractor hereby irrevocably designates and appoints PGIC and its duly authorized officers and agents as\nContractor’s agents and attorneys-in-fact to act for and in Contractor’s behalf and instead of Contractor, to execute and file\nany such application and to do all other lawfully permitted acts to further the prosecution and issuance of patents, copyrights\nor other rights thereon with the same legal force and effect as if executed by Contractor. Contractor is entitled to keep and\nretain Contractor’s own tools, equipment and material provided and owned by Contractor.\nE.\nReturn of PGIC’S Property. Contractor acknowledges that PGIC’s sole and exclusive property includes, among other things, all\ndocuments, such as drawings, manuals, notebooks, reports, sketches, records, computer programs, employee lists, software,\nhardware, videotapes, audiotapes, customer lists and the like in Contractor’s custody, control or possession, whether delivered to\nContractor by PGIC or made by Contractor in the performance of services under this Agreement, relating to the business activities\nof PGIC or its customers or suppliers and containing any information or data whatsoever, whether or not Confidential Information.\nContractor agrees to deliver promptly to PGIC upon termination of this Agreement or at any other time upon PGIC’s request all of\nPGIC’s property and all copies of PGIC’s property in Contractor’s possession,\n5\ncustody or control.\n5.\nWorks Made For Hire. All Work performed by Contractor while performing services for PGIC (during business hours or not) in\nany language, on any platform, for any operating system, in any media or in any form whatsoever (including but not limited to any\nof the Intellectual Property), shall be deemed to have been done upon the commission of and at the instruction of PGIC, shall be a\n“Work Made for Hire” within the meaning of the Copyright Act, shall be the property of PGIC and may not be used by Contractor\nfor any purpose except the benefit of PGIC. Any and all such property shall be forthwith delivered to PGIC upon the PGIC ‘s\nrequest. Contractor agrees that each of Contractor’s own employees, officers, directors, subcontractors and agents are performing\n“Works Made for Hire” for PGIC, and Contractor agrees to cause each of its employees, subcontractors or agents engaged in any\nproject or work for PGIC to sign valid written agreements that such work is being performed as a “Work Made for Hire” for PGIC.\nFurthermore, Contractor agrees to sign and to cause each of its employees, agents and subcontractors engaged in any project or\nwork for PGIC to sign written agreements acknowledging that such work is owned by PGIC and agreeing to execute a “quitclaim\nassignment” for such work to PGIC.\n6.\nContractor’s Cooperation in Establishing Ownership. Contractor shall, from time to time as may be requested by PGIC, do all\nthings that may be necessary to establish or document PGIC ‘s ownership of any work or work product that is properly the Property\nof PGIC, including, but not limited to execution of appropriate copyright applications, copyright assignments, transfers, sales,\nreleases or any and all other documents or writings. Contractor hereby waives any power Contractor may have to control, cause to\nmodify or otherwise effect the Intellectual Property, and hereby transfers all such powers, including but not limited to any powers\nof Droit Morale, to PGIC. Contractor hereby irrevocably appoints PGIC as Contractor’s attorney in fact empowered solely to\nexecute any documents necessary to establish PGIC’s ownership rights, rights to maintain, rights to defend and rights to control any\nof the Intellectual Property and/or Confidential Property.\n7.\nAdditional Compensation. Other than Contractor’s stated compensation, neither Contractor nor its employees, subcontractors,\nofficers, directors or agents is entitled to receive any additional compensation from PGIC (including but not limited to royalties or\nfees) as a result of any work performed, concepts developed, ideas submitted, or other efforts made while a Contractor of PGIC\nexcept to the extent such further compensation is set forth in a formal written agreement. Other than as provided by any formal\nwritten agreement Contractor acknowledges that Contractor has no propriety or ownership interest in PGIC, or any related entities,\nand will not receive any such interest. Unless stated in a separate written agreement, Contractor is not entitled to any equity interest\nin PGIC. Neither Contractor nor any of Contractor’s officers, agents, directors or employees is entitled to any employment benefits\nfrom PGIC, including but not limited to insurance, pensions, paid holidays, vacations, sick leave, paid time off or profit sharing\nexcept as set forth in written agreement.\n8.\nNon-Disparagement. Neither party shall make any remarks or issue any communication, written or otherwise, that disparages or\nderogates, or encourages any adverse action against the other party or any of its affiliates, officers, directors, employees or agents,\nprovided that this paragraph shall not preclude Contractor from testifying truthfully under oath, pursuant to subpoena or otherwise,\nas to his first-hand knowledge, or from providing his first-hand knowledge to any governmental, regulatory or self-regulatory body\nor agency with jurisdiction over PGIC’s activities.\n9.\nNoninterference with Business. During the Term of this Agreement and for a period of two (2) years immediately following\ntermination of this Agreement, Contractor agrees not to solicit or induce any employee or independent contractor, or other\nperson(s) to terminate or breach, or cause to terminate or breach any employment relationship, contractual relationship or other\nrelationship with PGIC.\n6\n10.Contractor’s Representations, Warranties And Indemnification.\nA.\nContractor’s Warranties. In addition to other representations and warranties provided for herein, Contractor represents\nand warrants to PGIC that:\n1) Contractor is the sole and exclusive supplier of the Work performed by Contractor;\n2)\nWith respect to the Work, and any materials pertaining thereto that Contractor discloses, uses, assigns and/or delivers in\nthe performance of its obligations hereunder, Contractor has the right to make such disclosure, use, and/or delivery\nthereof without liability to any third party;\n3)\nThe performance of the terms of this Agreement and of Contractor’s obligation hereunder will not breach any separate\nagreement by which Contractor is bound;\n4)\nContractor has not previously granted any rights in and to the Work to any third party that are inconsistent with any of\nPGIC’s licenses and/or rights hereunder;\n5) Contractor has full power and authority to enter into this Agreement and to fulfill its obligations hereunder;\n6) Contractor is legally competent to sign this Agreement;\n7)\nContractor warrants and represents to PGIC that all acts, duties and obligations required of it under this Agreement\nshall be performed in good faith; and\n8)\nContractor agrees to fully cooperate with any legitimate investigation of Company and to produce any materials or\ndocuments requested by regulatory authorities.\n9)\nContractor hereby agrees to employ only persons who are previously approved by PGIC in writing and who are legally\nauthorized to work in the jurisdictions where Work is to be performed and to have appropriate employment\nauthorization forms, if required, for each person employed by it.\nB.\nContractor’s Indemnification. Contractor agrees to indemnify and hold harmless PGIC and its customers, affiliates and/or\nsub-licensees and end-users from and against any and all claims, losses, liabilities, damages, expenses and costs (including\nattorneys and defense costs) and judgments that may be asserted against PGIC that result from the acts or omissions of\nContractor, Contractor’s employees, if any, and Contractor’s agents, and/or which result from a breach of any of the\nwarranties expressly set forth in this Agreement, or incurred in the settlement or avoidance of any such matter. As a\ncondition to indemnification, PGIC will promptly inform Contractor in writing of the assertion of any such claim, demand\nor suit, and the parties will cooperate with and assist one another with respect to the defense and/or settlement of such\nmatter (in a manner consistent with the parties’ respective confidentiality obligations and desired preservation of\nattorney/client, work product and other privileges). Contractor hereby confirms that Contractor will not agree to the\nsettlement of any such claim, demand or suit prior to judgment thereon by any court of competent jurisdiction unless\nPGIC’s written consent is first obtained, which consent will not be unreasonably withheld or delayed.\n11.PGIC’S Warranties, Representation and Indemnification:\nA. PGIC’S Warranties: PGIC represents and warrants to Contractor that:\n1) PGIC possesses full power and authority to enter into this Agreement and to fulfill its obligations hereunder;\n2)\nThe performance of the terms of this Agreement and of PGIC’s obligations hereunder will not breach any separate\nagreement by which PGIC is bound;\n3)\nPGIC warrants and represents to Contractor that all acts, duties and obligations required of it under this Agreement\nshall be performed in good faith.\nB. PGIC’S Indemnity: PGIC agrees to indemnify and hold harmless Contractor from and against\n7\nany and all claims, losses, liabilities, damages, expenses and costs (including attorneys fees and defense costs) which result\nfrom a breach of any of the warranties expressly set forth in this Agreement, or incurred in the settlement or avoidance of\nany such matter, or which are incurred in the course of PGIC’s activities in connection with this Agreement unless such\nmatters are the fault of Contractor. As a condition to indemnification, Contractor will promptly inform PGIC in writing of\nthe assertion of any such claim, demand or suit, and the parties will cooperate with and assist one another with respect to the\ndefense and/or settlement of such matter (consistent with the parties’ respective confidentiality obligations and preservation\nof attorney/client, work product and other privileges). PGIC hereby confirms that it will not agree to the settlement of any\nsuch claim, demand or suit prior to judgment thereon by any court of competent jurisdiction unless Contractor’s consent is\nfirst obtained, which consent will not be unreasonably withheld or delayed.\n12.General Provisions:\nA.\nGoverning Law: This Agreement will be governed by and construed in accordance with the laws of the United States and\nthe State of Nevada applied to agreements entered into and to be performed entirely within Nevada between Nevada\nresidents. Contractor and PGIC further agree that for purposes of venue and jurisdiction, that any disputes, issues,\nenforcement and/or all other matters concerning the Agreement will be determined in Clark County, State of Nevada,\nUnited States of America. The parties expressly waive any other jurisdiction to which they might be entitled as a result of\ntheir present or future domicile or for any other reason.\nB.\nCompliance with Laws: In the performance of the Work, Contractor shall comply with all applicable laws, rules and\nregulations, including but not limited to all requirements and provisions of the laws and regulations of the United States, the\nStates and subdivisions thereof in which PGIC or any of PGIC’s subsidiaries or affiliates (regardless of when or how\nformed) carry on their business and all general rules, regulations and ethical standards of national, State and local agencies\nand regulatory and advisory groups having jurisdiction over any business of PGIC or any of PGIC’s subsidiaries or affiliates\n(regardless of when or how formed) as they exist now and as same may be amended from time to time.\nC.\nRegulatory Matters: PGIC, its parent corporation and certain related entities are licensed by or otherwise subject to the\nauthority of various casino and gaming regulatory agencies (“Regulator”). PGIC has adopted a regulatory compliance\npolicy, and Contractor agrees to provide PGIC with such documentation, information and assurances regarding itself, any\nprincipal employees, brokers, agents or others where applicable as may be necessary in order for PGIC to comply with\nPGIC’s regulatory compliance policy and with the request of any Regulator. The foregoing shall be a material obligation of\nContractor hereunder.\nD.\nInjuries: Contractor acknowledges Contractor’s obligation to obtain appropriate insurance coverage for the benefit of\nContractor (and Contractor’s employees, if any). Contractor waives any rights to recovery from PGIC for any injuries that\nContractor (and/or Contractor’s employees) may sustain while performing services under this Agreement and that are a\nresult of the negligence of Contractor or Contractor’s employees.\nE.\nEntire Agreement / Modification: This Agreement, including all Exhibits to this Agreement, constitute the entire\nagreement between the parties relating to this subject matter and supersedes all prior or simultaneous representations,\ndiscussions, negotiations, and agreements, whether written or oral. Any and all amendments, changes, revisions, and/or\nmodifications to this Agreement must be in writing signed by Contractor and PGIC.\n8\nF.\nWaiver: No term or provision hereof will be considered waived by either party, and no breach excused by either party,\nunless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by\neither party to, or waiver of, a breach by either party, whether express or implied, will constitute a consent to, waiver of, or\nexcuse of any other, different, or subsequent breach by either party.\nG.\nSuccessors and Assigns: Contractor may not assign its rights or obligations arising under this Agreement without PGIC’s\nprior written consent. PGIC may assign its rights and obligations under this Agreement. This Agreement will be for the\nbenefit of PGIC’s successors and assigns, and will be binding on Contractor’s heirs, legal representatives and permitted\nassignees.\nH.\nLegal Fees: If any dispute arises between the parties with respect to the matters covered by this Agreement which leads to a\nproceeding to resolve such dispute, the prevailing party in such proceeding shall be entitled to receive its reasonable\nattorneys’ fees, expert witness fees and out-of-pocket costs incurred in connection with such proceeding, in addition to any\nother relief to which it may be entitled, including but not limited to equitable relief such as restraining orders and\ninjunctions.\nI.\nNotices: All notices, requests and other communications required to be given under this Agreement must be in writing, and\nmust be mailed by registered or certified mail, postage prepaid and return receipt requested, or delivered by hand to the\nparty to whom such notice is required or permitted to be given. Any such notice will be considered to have been given when\nreceived, or if mailed, five (5) business days after it was mailed, as evidenced by the postmark. The mailing address for\nnotice to either party will be the address shown on the face page of this Agreement. Either party may change its mailing\naddress by notice as provided by this Section.\nJ.\nSeverability: Should any term, condition, or provision herein be determined to be unenforceable, such determination shall\nnot impair, limit, or otherwise affect the enforceability of the remaining terms of this Agreement.\nK.\nWaiver. Failure of either party to insist on strict performance shall not constitute a waiver of any of the provisions of this\nAgreement or a waiver of any default of the other party.\nL.\nSurvival: The following provisions shall survive termination of this Agreement: Section IV, Section 5, Section 6, and\nSection 9.\nMIKOHN GAMING\nCORPORATION, a\nNevada corporation, doing business\nas\nMichael F. Dreitzer, an individual\nPROGRESSIVE GAMING\nINTERNATIONAL\nCORPORATION\nBy: /s/ Michael A. Sicuro\nBy: /s/ Michael F. Dreitzer\nName:Michael A. Sicuro\nName:\nMichael F. Dreitzer\nTitle:Executive Vice President & CFO\nDate:\nDate:\n9
7fe455b9ceccf959c72491a095b0263f.pdf	effective_date jurisdiction party term	EX-99.(E)(3) 2 d334994dex99e3.htm EX-(E)(3)\nExhibit (e)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made as of November 17, 2016, by and between Nimble\nStorage, Inc. a corporation organized under the laws of Delaware (the “Company”), and Hewlett Packard Enterprise Company, a Delaware\ncorporation (“HPE”).\nHPE is evaluating forms of a potential transaction with respect to the Company (a “Transaction”), in connection with which each may\ndisclose certain information, including Confidential 1nformation (as defined below), to the other. As a condition to such information being\nfurnished to each party, its affiliates, its subsidiaries and other individuals and entities controlled, directly or indirectly, by such party\n(“Affiliates”), and the respective directors, employees, consultants, accountants, attorneys and advisors of such party and its Affiliates with\nwhich such party has entered into confidentiality agreements with material terms that are substantially similar to those in this Agreement\n(collectively with such Affiliates, “Associates”), each party agrees such information shall be provided to Associates for the limited purpose of\nevaluating, negotiating or consummating the Transaction, to treat the other party’s Confidential Information in accordance with the provisions of\nthis Agreement and to take or abstain from taking certain other actions, as described in this Agreement. The foregoing definition of Associates\nwho may be furnished confidential information hereby specifically excludes third parties who provide stockholder representation services. A\nparty disclosing Confidential Information hereunder is referred to herein as “the disclosing party” and a party receiving the Confidential\nInformation of a disclosing party hereunder is referred to herein as “the receiving party.”\n1. Definition of Confidential Information; Use and Disclosure.\n“Confidential Information” means any information, technical data or know-how, including, but not limited to, that which relates to\nresearch, product or service plans, business practices, agreement terms, products, services, employees, suppliers, customers, technology or other\nstrategic partners, stockholders, markets, software, know-how, developments, inventions, processes, designs, drawings, engineering, hardware\nconfiguration information, marketing, finances, notes, analyses or studies and all tangible and intangible embodiments thereof of any kind\nwhatsoever, whether conveyed in writing or orally by the disclosing party or its Associates to the receiving party or its Associates in connection\nwith the evaluation of a Transaction. The term “Confidential Information” shall be deemed to include those portions of any notes, analyses,\ncompilations, studies, interpretations, memoranda or other documents (regardless of the form thereof) prepared by the receiving party or its\nAssociates which contain, reflect or are based upon, in whole or in part, any information furnished to the receiving party or its Associates\npursuant hereto. Notwithstanding the foregoing, Confidential Information does not include information, technical data or know-how which: (i) is\nin the possession of the receiving party or its Associates at the time of disclosure, as shown by files and records immediately prior to the time of\ndisclosure; (ii) prior to or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action\nof the receiving party or its Associates; (iii) is obtained by the receiving party or its Associates from a source other than the disclosing party or its\nAssociates, which source would not be reasonably expected by the\nreceiving party or its Associates to have any obligation of confidentiality to the disclosing party with respect to such information; (iv) is\napproved, in writing, for release by the disclosing party; or (v) the receiving party or its Associates can document was independently developed\nby the receiving party or its Associates without use of or reference to the disclosing party’s Confidential Information.\nEach of the parties hereto agree not to use the Confidential Information disclosed to it by the other party or its Associates except in\nconnection with preparing a proposal for and any discussions of a Transaction or as otherwise permitted hereunder. Neither party will disclose\nany Confidential Information of the other party to third parties except those of its Associates who are required to have the information in order to\nevaluate and discuss a Transaction. The receiving party shall inform its Associates of the confidential nature of the Confidential Information and\nshall instruct them to treat the information confidentially. The receiving party shall be responsible for any breach of this Agreement by its\nAssociates and agrees, at its sole expense, to take all commercially reasonable measures to restrain its Associates from disclosure or use of the\nConfidential Information in breach of this Agreement. Each party agrees that it will take commercially reasonable measures to protect the\nconfidentiality of, and to avoid having Confidential Information of the other party enter the public domain, become publicly available, or be held\nby persons not authorized hereunder to have such Confidential Information, which measures shall include at least the same degree of care that the\nreceiving party utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other party in writing of\nany misuse or misappropriation of such Confidential Information of the other party that may come to its attention.\n2. Nonpublicity. The existence and the terms of this Agreement, any Transaction, the fact that any Confidential Information has been\nprovided to the other party, and the existence, nature and status of any discussions between the parties shall be treated as Confidential\nInformation hereunder, shall be maintained in strict confidence by the parties hereto and by their respective Associates and, subject to Section 3\nof this Agreement, shall not be disclosed to any third party.\n3. Required Disclosure. In the event that a receiving party or its Associates is or becomes legally compelled under applicable law,\nregulation or securities exchange listing agreement, or by a competent governmental, administrative or regulatory authority or in a proceeding\nbefore a court, arbitrator or administrative agency, whether or not as a result of a Transaction to which the Company has consented, to disclose\nany portion of the Confidential Information of a disclosing party, that discussions or negotiations between the parties hereto are taking place or\nhave taken place, or any of the terms, conditions or other facts with respect to a Transaction, including the status thereof, the receiving party will,\nand will direct its Associates to, provide the disclosing party with prompt written notice (unless prohibited by law) of such legal compulsion, and\nshall delay disclosure, if and to the extent permitted or practicable, until the disclaiming party has had an opportunity to seek a protective order or\nother appropriate remedy or to waive compliance by the receiving party and/or its Associates with the relevant provisions of this Agreement. In\nthe event that a protective order or other remedy is not obtained in such a proceeding, or the disclosing party fails to waive compliance with the\nrelevant provisions of this Agreement, the receiving party agrees that it will, and will direct its Associates to, disclose only that Confidential\nInformation of the disclosing party which its counsel advises\nis legally required to be disclosed and will exercise commercially reasonable efforts, and will direct its Associates to exercise their commercially\nreasonable efforts, at the request and expense of the disclosing party, to cooperate with the disclosing party in its efforts to obtain reliable\nassurance that confidential treatment will be accorded the Confidential Information which is so disclosed.\n4. No License Granted. Nothing in this Agreement is intended to grant any rights to either party under any patent, copyright, trade secret\nor other intellectual property right, nor shall this Agreement grant either party any rights in or to the other party’s Confidential Information,\nexcept the limited right to review such Confidential Information solely for the purposes of determining whether to enter into, and the undertaking\nof or the advising with respect to, a Transaction.\n5. No Representation of Accuracy.· Each party acknowledges that neither the other party nor any of its Associates has made any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information made available by the other\nparty or its Associates. Each party agrees that, except as set forth in a definitive agreement executed by the parties, neither party nor any of its\nAssociates shall have any liability to the other party or to any of its Associates relating to or resulting from the use of such other party’s\nConfidential Information or any errors therein m omissions therefrom. Only those representations or warranties made in a definitive agreement,\nwhen, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n6. Definitive Agreements. Each party acknowledges and agrees that other than with respect to the matters specifically set forth herein, no\ncontract or agreement providing a Transaction shall be deemed to exist between the parties unless and until a definitive agreement has been\nexecuted and delivered. The parties further agree that each party reserves the right, in its sole discretion, to reject any and all proposals made by\nthe other party or any of its Associates with regard to a Transaction and to terminate discussions or negotiations at any time.\n7. Similar Products. Each disclosing party acknowledges that the receiving party or its Associates may currently or in the future be\ndeveloping information internally, or receiving information from other parties, that is similar to the disclosing party’s Confidential Information.\nNothing in this Agreement will prohibit the receiving party or its Associates from developing, manufacturing, marketing, selling, servicing or\nsupporting or having developed, manufactured, marketed, sold, serviced or supported for it products, concepts, systems or techniques that are\nsimilar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the disclosing party’s Confidential\nInformation, provided that the receiving party and its Associates do not use any of the disclosing party’s Confidential Information in connection\nwith such activities. Neither party nor its respective Associates shall have any obligation to limit or restrict the assignment of its respective\nemployees or consultants as a result of their having had access to Confidential Information of the other party or its Associates.\n8. Residuals. The receiving party’s employees may use any Residuals for any purpose, provided that this paragraph does not grant or\nimply any license or other right to use any patent, trademark, copyright, mask work right or other intellectual property right. “Residuals” means\ninformation that is retained, as general knowledge and experience, in the\nunaided memory of the receiving party’s employees who have had access to the disclosing party’s Confidential Information within the scope of\nthe receiving party’s obligations under this Agreement, but who no longer have access to such Confidential Information. However, Residuals\ndoes not include any detailed financial or personnel data. The ability to use Residuals shall be narrowly construed, is intended only to alleviate\nthe possibility of inadvertent breach of this Agreement as a result of routine, unaided memory retention, and does not allow the receiving party to\nuse or disclose information known to the receiving party to be Confidential Information that is subject to this Agreement. The memory of an\nemployee of the receiving party is unaided if such employee has not intentionally memorized the Confidential Information or retained notes or\nother aids to such memory,\n9. Commercial Relationship Use. Notwithstanding any obligations or restrictions to the contrary contained herein, if during due diligence\nreview, HPE learns of flaws or problems with Company’s products, software, services or intellectual property rights, the Associates of HPE\nevaluating the potential Transaction may share such information with the Associates of HPE who are responsible for purchasing such products,\nsoftware or services or licensing such intellectual property on behalf of HPE (“Purchasing Associates”). For avoidance of doubt, Purchasing\nAssociates of the receiving party that receive such information agree to be bound by the terms of this Agreement. In the event any Confidential\nInformation is disclosed pursuant to this Section 9, HPE shall notify the Company of any information shared with Associates of HPE within\nfifteen (15) business days after such disclosure.\n10. Termination of Discussions. Following written notice by one party to another of the termination of discussions between the parties,\nupon written request of the disclosing party, the receiving party shall take reasonable steps to instruct all persons involved in the Transaction to\ndestroy all Confidential Information furnished to the receiving party by or on behalf of the disclosing party pursuant to this Agreement.\nNotwithstanding the foregoing, the receiving party and its Associates may retain any Confidential Information to the extent required pursuant to\nthe regulatory compliance or record retention policies of such receiving party or Associate.\n11. Term. The foregoing commitments of either party in this Agreement regarding the confidentiality and non-use of Confidential\nInformation shall survive any termination of discussions between the parties and shall continue for a period of eighteen (18) months following\nthe date of this Agreement.\n12. Attorney-Client Privilege. To the extent that any Confidential Information of the disclosing party may include materials subject to the\nattorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or\ngovernmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their\ndesire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the\nconfidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. All Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine and other\napplicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine,\n13. Notice. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in\nwriting and shall he deemed properly given on the day of delivery (or, if such date is not a business day, on the first business day after delivery) if\ndelivered by hand or email (if submitting by email, substantive discussions to be included only in password protected attachments) (with\nconfirmation of delivery), or on the first business day after being sent by overnight courier or overnight express delivery service (in each case,\nwith confirmation of delivery) to the address set forth beneath the name of such party below (or to such other address as such party shall have\nspecified in a written notice given to the other parties hereto):\nif to HPE:\nHewlett Packard Enterprise Company\n3000 Hanover Street\nPalo Alto, CA 94304\nAttn: General Counsel\nif to the Company:\nNimble Storage, Inc.\n211 River Oaks Parkway\nSan Jose, CA 95134\nAttn: General Counsel\nGC@nimblestorage.com\n14. Governing Law and Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the\nState of Delaware applicable to agreements made and to be performed within that state. Each of the parties hereby agrees and irrevocably\nconsents to personal jurisdiction and venue in any federal or state court within Wilmington, Delaware, having subject matter jurisdiction, for the\npurposes of any action, suit or proceeding arising out of or relating to this agreement. To the fullest extent permitted by law, each of the parties\nhereby agrees to waive trial by jury in any action proceeding or counterclaim brought by or on behalf of either party with respect to any matter\nwhatsoever relating to this Agreement.\n15. Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto and supersedes all other prior\nagreements and understandings, both written and oral, among or between any of the parties with respect to the subject matter hereof and thereof.\nAll modifications of, waivers of and amendments to this letter agreement must be in writing and signed by both parties hereto.\n16. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one instrument. Any counterpart signed by an authorized representative of a party and delivered to the other party by\nemail, facsimile, PDF, or other similar electronic means shall be deemed an original counterpart and duly delivered.\n[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK]\nIN WITNESS WHEREOF, the parties have executed this Mutual Non-Disclosure Agreement as of the day and year first above written.\nNIMBLE STORAGE, INC.\nBy: /s/ Suresh Vasudevan\nName: Suresh Vasudevan\nTitle: CEO\nHEWLETT PACKARD ENTERPRISE\nCOMPANY\nBy: /s/ Vishal Bhagwati\nName: Vishal Bhagwati\nTitle: SVP – Corporate Development	EX-99.(E)(3) 2 d334994dex99e3.htm EX-(E)(3)\nExhibit (e)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made as of November 17, 2016, by and between Nimble\nStorage, Inc. a corporation organized under the laws of Delaware (the “Company”), and Hewlett Packard Enterprise Company, a Delaware\ncorporation (“HPE”).\nHPE is evaluating forms of a potential transaction with respect to the Company (a “Transaction™), in connection with which each may\ndisclose certain information, including Confidential 1nformation (as defined below), to the other. As a condition to such information being\nfurnished to each party, its affiliates, its subsidiaries and other individuals and entities controlled, directly or indirectly, by such party\n(“Affiliates™), and the respective directors, employees, consultants, accountants, attorneys and advisors of such party and its Affiliates with\nwhich such party has entered into confidentiality agreements with material terms that are substantially similar to those in this Agreement\n(collectively with such Affiliates, “Associates”), each party agrees such information shall be provided to Associates for the limited purpose of\nevaluating, negotiating or consummating the Transaction, to treat the other party’s Confidential Information in accordance with the provisions of\nthis Agreement and to take or abstain from taking certain other actions, as described in this Agreement. The foregoing definition of Associates\nwho may be furnished confidential information hereby specifically excludes third parties who provide stockholder representation services. A\nparty disclosing Confidential Information hereunder is referred to herein as “the disclosing party” and a party receiving the Confidential\nInformation of a disclosing party hereunder is referred to herein as “the receiving party.”\n1. Definition of Confidential Information; Use and Disclosure.\n“Confidential Information” means any information, technical data or know-how, including, but not limited to, that which relates to\nresearch, product or service plans, business practices, agreement terms, products, services, employees, suppliers, customers, technology or other\nstrategic partners, stockholders, markets, software, know-how, developments, inventions, processes, designs, drawings, engineering, hardware\nconfiguration information, marketing, finances, notes, analyses or studies and all tangible and intangible embodiments thereof of any kind\nwhatsoever, whether conveyed in writing or orally by the disclosing party or its Associates to the receiving party or its Associates in connection\nwith the evaluation of a Transaction. The term “Confidential Information” shall be deemed to include those portions of any notes, analyses,\ncompilations, studies, interpretations, memoranda or other documents (regardless of the form thereof) prepared by the receiving party or its\nAssociates which contain, reflect or are based upon, in whole or in part, any information furnished to the receiving party or its Associates\npursuant hereto. Notwithstanding the foregoing, Confidential Information does not include information, technical data or know-how which: (i) is\nin the possession of the receiving party or its Associates at the time of disclosure, as shown by files and records immediately prior to the time of\ndisclosure; (ii) prior to or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action\nof the receiving party or its Associates; (iii) is obtained by the receiving party or its Associates from a source other than the disclosing party or its\nAssociates, which source would not be reasonably expected by the\nreceiving party or its Associates to have any obligation of confidentiality to the disclosing party with respect to such information; (iv) is\napproved, in writing, for release by the disclosing party; or (v) the receiving party or its Associates can document was independently developed\nby the receiving party or its Associates without use of or reference to the disclosing party’s Confidential Information.\nEach of the parties hereto agree not to use the Confidential Information disclosed to it by the other party or its Associates except in\nconnection with preparing a proposal for and any discussions of a Transaction or as otherwise permitted hereunder. Neither party will disclose\nany Confidential Information of the other party to third parties except those of its Associates who are required to have the information in order to\nevaluate and discuss a Transaction. The receiving party shall inform its Associates of the confidential nature of the Confidential Information and\nshall instruct them to treat the information confidentially. The receiving party shall be responsible for any breach of this Agreement by its\nAssociates and agrees, at its sole expense, to take all commercially reasonable measures to restrain its Associates from disclosure or use of the\nConfidential Information in breach of this Agreement. Each party agrees that it will take commercially reasonable measures to protect the\nconfidentiality of, and to avoid having Confidential Information of the other party enter the public domain, become publicly available, or be held\nby persons not authorized hereunder to have such Confidential Information, which measures shall include at least the same degree of care that the\nreceiving party utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other party in writing of\nany misuse or misappropriation of such Confidential Information of the other party that may come to its attention.\n2. Nonpublicity. The existence and the terms of this Agreement, any Transaction, the fact that any Confidential Information has been\nprovided to the other party, and the existence, nature and status of any discussions between the parties shall be treated as Confidential\nInformation hereunder, shall be maintained in strict confidence by the parties hereto and by their respective Associates and, subject to Section 3\nof this Agreement, shall not be disclosed to any third party.\n3. Required Disclosure. In the event that a receiving party or its Associates is or becomes legally compelled under applicable law,\nregulation or securities exchange listing agreement, or by a competent governmental, administrative or regulatory authority or in a proceeding\nbefore a court, arbitrator or administrative agency, whether or not as a result of a Transaction to which the Company has consented, to disclose\nany portion of the Confidential Information of a disclosing party, that discussions or negotiations between the parties hereto are taking place or\nhave taken place, or any of the terms, conditions or other facts with respect to a Transaction, including the status thereof, the receiving party will,\nand will direct its Associates to, provide the disclosing party with prompt written notice (unless prohibited by law) of such legal compulsion, and\nshall delay disclosure, if and to the extent permitted or practicable, until the disclaiming party has had an opportunity to seek a protective order or\nother appropriate remedy or to waive compliance by the receiving party and/or its Associates with the relevant provisions of this Agreement. In\nthe event that a protective order or other remedy is not obtained in such a proceeding, or the disclosing party fails to waive compliance with the\nrelevant provisions of this Agreement, the receiving party agrees that it will, and will direct its Associates to, disclose only that Confidential\nInformation of the disclosing party which its counsel advises\nis legally required to be disclosed and will exercise commercially reasonable efforts, and will direct its Associates to exercise their commercially\nreasonable efforts, at the request and expense of the disclosing party, to cooperate with the disclosing party in its efforts to obtain reliable\nassurance that confidential treatment will be accorded the Confidential Information which is so disclosed.\n4. No License Granted. Nothing in this Agreement is intended to grant any rights to either party under any patent, copyright, trade secret\nor other intellectual property right, nor shall this Agreement grant either party any rights in or to the other party’s Confidential Information,\nexcept the limited right to review such Confidential Information solely for the purposes of determining whether to enter into, and the undertaking\nof or the advising with respect to, a Transaction.\n5. No Representation of Accuracy.- Each party acknowledges that neither the other party nor any of its Associates has made any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information made available by the other\nparty or its Associates. Each party agrees that, except as set forth in a definitive agreement executed by the parties, neither party nor any of its\nAssociates shall have any liability to the other party or to any of its Associates relating to or resulting from the use of such other party’s\nConfidential Information or any errors therein m omissions therefrom. Only those representations or warranties made in a definitive agreement,\nwhen, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n6. Definitive Agreements. Each party acknowledges and agrees that other than with respect to the matters specifically set forth herein, no\ncontract or agreement providing a Transaction shall be deemed to exist between the parties unless and until a definitive agreement has been\nexecuted and delivered. The parties further agree that each party reserves the right, in its sole discretion, to reject any and all proposals made by\nthe other party or any of its Associates with regard to a Transaction and to terminate discussions or negotiations at any time.\n7. Similar Products. Each disclosing party acknowledges that the receiving party or its Associates may currently or in the future be\ndeveloping information internally, or receiving information from other parties, that is similar to the disclosing party’s Confidential Information.\nNothing in this Agreement will prohibit the receiving party or its Associates from developing, manufacturing, marketing, selling, servicing or\nsupporting or having developed, manufactured, marketed, sold, serviced or supported for it products, concepts, systems or techniques that are\nsimilar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the disclosing party’s Confidential\nInformation, provided that the receiving party and its Associates do not use any of the disclosing party’s Confidential Information in connection\nwith such activities. Neither party nor its respective Associates shall have any obligation to limit or restrict the assignment of its respective\nemployees or consultants as a result of their having had access to Confidential Information of the other party or its Associates.\n8. Residuals. The receiving party’s employees may use any Residuals for any purpose, provided that this paragraph does not grant or\nimply any license or other right to use any patent, trademark, copyright, mask work right or other intellectual property right. “Residuals” means\ninformation that is retained, as general knowledge and experience, in the\nunaided memory of the receiving party’s employees who have had access to the disclosing party’s Confidential Information within the scope of\nthe receiving party’s obligations under this Agreement, but who no longer have access to such Confidential Information. However, Residuals\ndoes not include any detailed financial or personnel data. The ability to use Residuals shall be narrowly construed, is intended only to alleviate\nthe possibility of inadvertent breach of this Agreement as a result of routine, unaided memory retention, and does not allow the receiving party to\nuse or disclose information known to the receiving party to be Confidential Information that is subject to this Agreement. The memory of an\nemployee of the receiving party is unaided if such employee has not intentionally memorized the Confidential Information or retained notes or\nother aids to such memory,\n9. Commercial Relationship Use. Notwithstanding any obligations or restrictions to the contrary contained herein, if during due diligence\nreview, HPE learns of flaws or problems with Company’s products, software, services or intellectual property rights, the Associates of HPE\nevaluating the potential Transaction may share such information with the Associates of HPE who are responsible for purchasing such products,\nsoftware or services or licensing such intellectual property on behalf of HPE (“Purchasing Associates”). For avoidance of doubt, Purchasing\nAssociates of the receiving party that receive such information agree to be bound by the terms of this Agreement. In the event any Confidential\nInformation is disclosed pursuant to this Section 9, HPE shall notify the Company of any information shared with Associates of HPE within\nfifteen (15) business days after such disclosure.\n10. Termination of Discussions. Following written notice by one party to another of the termination of discussions between the parties,\nupon written request of the disclosing party, the receiving party shall take reasonable steps to instruct all persons involved in the Transaction to\ndestroy all Confidential Information furnished to the receiving party by or on behalf of the disclosing party pursuant to this Agreement.\nNotwithstanding the foregoing, the receiving party and its Associates may retain any Confidential Information to the extent required pursuant to\nthe regulatory compliance or record retention policies of such receiving party or Associate.\n11. Term. The foregoing commitments of either party in this Agreement regarding the confidentiality and non-use of Confidential\nInformation shall survive any termination of discussions between the parties and shall continue for a period of eighteen (18) months following\nthe date of this Agreement.\n12.  Attorney-Client Privilege. To the extent that any Confidential Information of the disclosing party may include materials subject to the\nattorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or\ngovernmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their\ndesire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the\nconfidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. All Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine and other\napplicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine,\n13. Notice. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in\nwriting and shall he deemed properly given on the day of delivery (or, if such date is not a business day, on the first business day after delivery) if\ndelivered by hand or email (if submitting by email, substantive discussions to be included only in password protected attachments) (with\nconfirmation of delivery), or on the first business day after being sent by overnight courier or overnight express delivery service (in each case,\nwith confirmation of delivery) to the address set forth beneath the name of such party below (or to such other address as such party shall have\nspecified in a written notice given to the other parties hereto):\nif to HPE:\nHewlett Packard Enterprise Company\n3000 Hanover Street\nPalo Alto, CA 94304\nAttn: General Counsel\nif to the Company:\nNimble Storage, Inc.\n211 River Oaks Parkway\nSan Jose, CA 95134\nAttn: General Counsel\nGC@nimblestorage.com\n14. Governing Law and Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the\nState of Delaware applicable to agreements made and to be performed within that state. Each of the parties hereby agrees and irrevocably\nconsents to personal jurisdiction and venue in any federal or state court within Wilmington, Delaware, having subject matter jurisdiction, for the\npurposes of any action, suit or proceeding arising out of or relating to this agreement. To the fullest extent permitted by law, each of the parties\nhereby agrees to waive trial by jury in any action proceeding or counterclaim brought by or on behalf of either party with respect to any matter\nwhatsoever relating to this Agreement.\n15. Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto and supersedes all other prior\nagreements and understandings, both written and oral, among or between any of the parties with respect to the subject matter hereof and thereof.\nAll modifications of, waivers of and amendments to this letter agreement must be in writing and signed by both parties hereto.\n \n16. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one instrument. Any counterpart signed by an authorized representative of a party and delivered to the other party by\nemail, facsimile, PDF, or other similar electronic means shall be deemed an original counterpart and duly delivered.\n \n[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK]\nIN WITNESS WHEREQF, the parties have executed this Mutual Non-Disclosure Agreement as of the day and year first above written.\nNIMBLE STORAGE, INC.\nBy:  /s/ Suresh Vasudevan\nName: Suresh Vasudevan\nTitle: CEO\nHEWLETT PACKARD ENTERPRISE\nCOMPANY\nBy:  /s/ Vishal Bhagwati\nName: Vishal Bhagwati\nTitle: SVP — Corporate Development	EX-99.(E)(3) 2 d334994dex99e3.htm EX-(E)(3)\nExhibit (e)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis MUTUAL NONDISCLOSURE AGREEMENT (this "Agreement") is made as of November 17, 2016, by and between Nimble\nStorage, Inc. a corporation organized under the laws of Delaware (the "Company"), and Hewlett Packard Enterprise Company, a Delaware\ncorporation ("HPE").\nHPE is evaluating forms of a potential transaction with respect to the Company (a "Transaction"), in connection with which each may\ndisclose certain information, including Confidential 1nformation (as defined below), to the other. As a condition to such information being\nfurnished to each party, its affiliates, its subsidiaries and other individuals and entities controlled, directly or indirectly, by such party\n("Affiliates"), and the respective directors, employees, consultants, accountants, attorneys and advisors of such party and its Affiliates with\nwhich such party has entered into confidentiality agreements with material terms that are substantially similar to those in this Agreement\n(collectively with such Affiliates, "Associates"), each party agrees such information shall be provided to Associates for the limited purpose\nof\nevaluating, negotiating or consummating the Transaction, to treat the other party's Confidential Information in accordance with the provisions of\nthis Agreement and to take or abstain from taking certain other actions, as described in this Agreement. The foregoing definition of Associates\nwho may be furnished confidential information hereby specifically excludes third parties who provide stockholder representation services.\nA\nparty disclosing Confidential Information hereunder is referred to herein as "the disclosing party" and a party receiving the Confidentia\nInformation of a disclosing party hereunder is referred to herein as "the receiving party."\n1.\nDefinition of Confidential Information; Use and Disclosure.\n"Confidential Information" means any information, technical data or know-how, including, but not limited to, that which relates to\nresearch, product or service plans, business practices, agreement terms, products, services, employees, suppliers, customers, technology or other\nstrategic partners, stockholders, markets, software, know-how, developments, inventions, processes, designs, drawings, engineering, hardware\nconfiguration information, marketing, finances, notes, analyses or studies and all tangible and intangible embodiments thereof of any kind\nwhatsoever, whether conveyed in writing or orally by the disclosing party or its Associates to the receiving party or its Associates in connection\nwith\nthe evaluation of a Transaction. The term "Confidential Information" shall be deemed to include those portions of any notes, analyses,\ncompilations, studies, interpretations, memoranda or other documents (regardless of the form thereof) prepared by the receiving party or its\nAssociates which contain, reflect or are based upon, in whole or in part, any information furnished to the receiving party or its Associates\npursuant hereto. Notwithstanding the foregoing, Confidential Information does not include information, technical data or know-how which: (i) is\nin the possession of the receiving party or its Associates at the time of disclosure, as shown by files and records immediately prior to the time of\ndisclosure; (ii) prior to or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action\nof the receiving party or its Associates; (iii) is obtained by the receiving party or its Associates from a source other than the disclosing party or its\nAssociates, which source would not be reasonably expected by the\nreceiving party or its Associates to have any obligation of confidentiality to the disclosing party with respect to such information; (iv)\nis\napproved, in writing, for release by the disclosing party; or (v) the receiving party or its Associates can document was independently developed\nby the receiving party or its Associates without use of or reference to the disclosing party's Confidential Information.\nEach of the parties hereto agree not to use the Confidential Information disclosed to it by the other party or its Associates except in\nconnection with preparing a proposal for and any discussions of a Transaction or as otherwise permitted hereunder. Neither party will disclose\nany Confidential Information of the other party to third parties except those of its Associates who are required to have the information in order\nto\nevaluate and discuss a Transaction. The receiving party shall inform its Associates of the confidential nature of the Confidential Information\nand\nshall instruct them to treat the information confidentially. The receiving party shall be responsible for any breach of this Agreement by\nits\nAssociates and agrees, at its sole expense, to take all commercially reasonable measures to restrain its Associates from disclosure or use of the\nConfidential Information in breach of this Agreement. Each party agrees that it will take commercially reasonable measures to protect the\nconfidentiality of, and to avoid having Confidential Information of the other party enter the public domain, become publicly available, or be held\nby persons not authorized hereunder to have such Confidentia Information, which measures shall include at least the same degree of care that\nthe\nreceiving party utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other party in writing of\nany misuse or misappropriation of such Confidential Information of the other party that may come to its attention.\n2. Nonpublicity.. The existence and the terms of this Agreement, any Transaction, the fact that any Confidential Information has been\nprovided to the other party, and the existence, nature and status of any discussions between the parties shall be treated as Confidential\nInformation hereunder, shall be maintained in strict confidence by the parties hereto and by their respective Associates and, subject to Section\n3\nof this Agreement, shall not be disclosed to any third party.\n3. Required Disclosure. In the event that a receiving party or its Associates is or becomes legally compelled under applicable law,\nregulation or securities exchange listing agreement, or by a competent governmental, administrative or regulatory authority or in a proceeding\nbefore a court, arbitrator or administrative agency, whether or not as a result of a Transaction to which the Company has consented, to disclose\nany portion of the Confidential Information of a disclosing party, that discussions or negotiations between the parties hereto are taking place\nor\nhave\ntaken\nplace,\nor\nany of the terms, conditions or other facts with respect to a Transaction, including the status thereof, the receiving party will,\nand will direct its Associates to, provide the disclosing party with prompt written notice (unless prohibited by law) of such legal compulsion, and\nshall delay disclosure, if and to the extent permitted or practicable, until the disclaiming party has had an opportunity to seek a protective order\nor\nother appropriate remedy or to waive compliance by the receiving party and/or its Associates with the relevant provisions of this Agreement.\nIn\nthe event that a protective order or other remedy is not obtained in such a proceeding, or the disclosing party fails to waive compliance with the\nrelevant provisions of this Agreement, the receiving party agrees that it will, and will direct its Associates to, disclose only that Confidential\nInformation of the disclosing party which its counsel advises\nis legally required to be disclosed and will exercise commercially reasonable efforts, and wil direct its Associates to exercise their commercially\nreasonable efforts, at the request and expense of the disclosing party, to cooperate with the disclosing party in its efforts to obtain reliable\nassurance that confidential treatment will be accorded the Confidential Information which is so disclosed.\n4. No License Granted. Nothing in this Agreement is intended to grant any rights to either party under any patent, copyright, trade secret\nor other intellectual property right, nor shall this Agreement grant either party any rights in or to the other party's Confidential Information,\nexcept the limited right to review such Confidential Information solely for the purposes of determining whether to enter into, and the undertaking\nof or the advising with respect to, a Transaction.\n5. No Representation of Accuracy. Each party acknowledges that neither the other party nor any of its Associates has made any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information made available by the other\nparty or its Associates. Each party agrees that, except as set forth in a definitive agreement executed by the parties, neither party nor any of\nits\nAssociates shall have any liability to the other party or to any of its Associates relating to or resulting from the use of such other party's\nConfidential Information or any errors therein m omissions therefrom. Only those representations or warranties made in a definitive agreement,\nwhen, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n6. Definitive Agreements. Each party acknowledges and agrees that other than with respect to the matters specifically set forth herein, no\ncontract or agreement providing a Transaction shall be deemed to exist between the parties unless and until a definitive agreement has been\nexecuted and delivered. The parties further agree that each party reserves the right, in its sole discretion, to reject any and all proposals made\nby\nthe other party or any of its Associates with regard to a Transaction and to terminate discussions or negotiations at any time.\n7. Similar Products. Each disclosing party acknowledges that the receiving party or its Associates may currently or in the future be\ndeveloping information internally, or receiving information from other parties, that is similar to the disclosing party's Confidential Information.\nNothing in this Agreement will prohibit the receiving party or its Associates from developing, manufacturing, marketing, selling, servicing or\nsupporting or having developed, manufactured, marketed, sold, serviced or supported for it products, concepts, systems or techniques that are\nsimilar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the disclosing party's Confidential\nInformation, provided that the receiving party and its Associates do not use any of the disclosing party's Confidential Information in connection\nwith such activities. Neither party nor its respective Associates shall have any obligation to limit or restrict the assignment of its respective\nemployees or consultants as a result of their having had access to Confidential Information of the other party or its Associates.\n8.\nResiduals. The receiving party's employees may use any Residuals for any purpose, provided that this paragraph does not grant or\nimply any license or other right to use any patent, trademark, copyright, mask work right or other intellectual property right. "Residuals" means\ninformation that is retained, as general knowledge and experience, in the\nunaided memory of the receiving party's employees who have had access to the disclosing party's Confidential Information within the scope of\nthe receiving party's obligations under this Agreement, but who no longer have access to such Confidential Information. However, Residuals\ndoes not include any detailed financial or personnel data. The ability to use Residuals shall be narrowly construed, is intended only to alleviate\nthe possibility of inadvertent breach of this Agreement as a result of routine, unaided memory retention, and does not allow the receiving party\nto\nuse or disclose information known to the receiving party to be Confidential Information that is subject to this Agreement. The memory of an\nemployee of the receiving party is unaided if such employee has not intentionally memorized the Confidential Information or retained notes\nor\nother aids to such memory,\n9. Commercial Relationship Use. Notwithstanding any obligations or restrictions to the contrary contained herein, if during due diligence\nreview, HPE learns of flaws or problems with Company's products, software, services or intellectual property rights, the Associates of HPE\nevaluating the potential Transaction may share such information with the Associates of HPE who are responsible for purchasing such products,\nsoftware or services or licensing such intellectual property on behalf of HPE ("Purchasing Associates"). For avoidance of doubt, Purchasing\nAssociates of the receiving party that receive such information agree to be bound by the terms of this Agreement. In the event any Confidential\nInformation is disclosed pursuant to this Section 9, HPE shall notify the Company of any information shared with Associates of HPE within\nfifteen (15) business days after such disclosure.\n10. Termination of Discussions. Following written notice by one party to another of the termination of discussions between the parties,\nupon written request of the disclosing party, the receiving party shall take reasonable steps to instruct all persons involved in the Transaction to\ndestroy all Confidential Information furnished to the receiving party by or on behalf of the disclosing party pursuant to this Agreement.\nNotwithstanding the foregoing, the receiving party and its Associates may retain any Confidential Information to the extent required pursuant to\nthe regulatory compliance or record retention policies of such receiving party or Associate.\n11. Term. The foregoing commitments of either party in this Agreement regarding the confidentiality and non-use of Confidential\nInformation shall survive any termination of discussions between the parties and shall continue for a period of eighteen (18) months following\nthe date of this Agreement.\n12. Attorney-Client Privilege. To the extent that any Confidential Information of the disclosing party may include materials subject to the\nattorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings\nor\ngovernmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their\ndesire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way\nthe\nconfidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. All Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine and other\napplicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine,\n13. Notice. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in\nwriting and shall he deemed properly given on the day of delivery (or, if such date is not a business day, on the first business day after delivery) if\ndelivered by hand or email (if submitting by email, substantive discussions to be included only in password protected attachments) (with\nconfirmation of delivery), or on the first business day after being sent by overnight courier or overnight express delivery service (in each case,\nwith confirmation of delivery) to the address set forth beneath the name of such party below (or to such other address as such party shall have\nspecified in a written notice given to the other parties hereto):\nif to HPE:\nHewlett Packard Enterprise Company\n3000 Hanover Street\nPalo Alto, CA 94304\nAttn: General Counsel\nif to the Company:\nNimble Storage, Inc.\n211 River Oaks Parkway\nSan Jose, CA 95134\nAttn: General Counsel\nGC@nimblestorage.com\n14. Governing Law and Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the\nState of Delaware applicable to agreements made and to be performed within that state. Each of the parties hereby agrees and irrevocably\nconsents to personal jurisdiction and venue in any federal or state court within Wilmington, Delaware, having subject matter jurisdiction, for the\npurposes of any action, suit or proceeding arising out of or relating to this agreement. To the fullest extent permitted by law, each of the parties\nhereby agrees to waive trial by jury in any action proceeding or counterclaim brought by or on behalf of either party with respect to any matter\nwhatsoever relating to this Agreement.\n15. Entire Agreement This Agreement constitutes the entire agreement among the parties hereto and supersedes all other prior\nagreements and understandings, both written and oral, among or between any of the parties with respect to the subject matter hereof and thereof.\nAll modifications of, waivers of and amendments to this letter agreement must be in writing and signed by both parties hereto.\n16. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one instrument. Any counterpart signed by an authorized representative of a party and delivered to the other party by\nemail, facsimile, PDF, or other similar electronic means shall be deemed an original counterpart and duly delivered.\n[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK]\nIN WITNESS WHEREOF, the parties have executed this Mutual Non-Disclosure Agreement as of the day and year first above written.\nNIMBLE STORAGE, INC.\nBy:\n/s/ Suresh Vasudevan\nName: Suresh Vasudevan\nTitle: CEO\nHEWLETT PACKARD ENTERPRISE\nCOMPANY\nBy:\n/s/ Vishal Bhagwati\nName: Vishal Bhagwati\nTitle: SVP - Corporate Development	EX-99.(E)(3) 2 d334994dex99e3.htm EX-(E)(3)\nExhibit (e)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made as of November 17, 2016, by and between Nimble\nStorage, Inc. a corporation organized under the laws of Delaware (the “Company”), and Hewlett Packard Enterprise Company, a Delaware\ncorporation (“HPE”).\nHPE is evaluating forms of a potential transaction with respect to the Company (a “Transaction”), in connection with which each may\ndisclose certain information, including Confidential 1nformation (as defined below), to the other. As a condition to such information being\nfurnished to each party, its affiliates, its subsidiaries and other individuals and entities controlled, directly or indirectly, by such party\n(“Affiliates”), and the respective directors, employees, consultants, accountants, attorneys and advisors of such party and its Affiliates with\nwhich such party has entered into confidentiality agreements with material terms that are substantially similar to those in this Agreement\n(collectively with such Affiliates, “Associates”), each party agrees such information shall be provided to Associates for the limited purpose of\nevaluating, negotiating or consummating the Transaction, to treat the other party’s Confidential Information in accordance with the provisions of\nthis Agreement and to take or abstain from taking certain other actions, as described in this Agreement. The foregoing definition of Associates\nwho may be furnished confidential information hereby specifically excludes third parties who provide stockholder representation services. A\nparty disclosing Confidential Information hereunder is referred to herein as “the disclosing party” and a party receiving the Confidential\nInformation of a disclosing party hereunder is referred to herein as “the receiving party.”\n1. Definition of Confidential Information; Use and Disclosure.\n“Confidential Information” means any information, technical data or know-how, including, but not limited to, that which relates to\nresearch, product or service plans, business practices, agreement terms, products, services, employees, suppliers, customers, technology or other\nstrategic partners, stockholders, markets, software, know-how, developments, inventions, processes, designs, drawings, engineering, hardware\nconfiguration information, marketing, finances, notes, analyses or studies and all tangible and intangible embodiments thereof of any kind\nwhatsoever, whether conveyed in writing or orally by the disclosing party or its Associates to the receiving party or its Associates in connection\nwith the evaluation of a Transaction. The term “Confidential Information” shall be deemed to include those portions of any notes, analyses,\ncompilations, studies, interpretations, memoranda or other documents (regardless of the form thereof) prepared by the receiving party or its\nAssociates which contain, reflect or are based upon, in whole or in part, any information furnished to the receiving party or its Associates\npursuant hereto. Notwithstanding the foregoing, Confidential Information does not include information, technical data or know-how which: (i) is\nin the possession of the receiving party or its Associates at the time of disclosure, as shown by files and records immediately prior to the time of\ndisclosure; (ii) prior to or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action\nof the receiving party or its Associates; (iii) is obtained by the receiving party or its Associates from a source other than the disclosing party or its\nAssociates, which source would not be reasonably expected by the\nreceiving party or its Associates to have any obligation of confidentiality to the disclosing party with respect to such information; (iv) is\napproved, in writing, for release by the disclosing party; or (v) the receiving party or its Associates can document was independently developed\nby the receiving party or its Associates without use of or reference to the disclosing party’s Confidential Information.\nEach of the parties hereto agree not to use the Confidential Information disclosed to it by the other party or its Associates except in\nconnection with preparing a proposal for and any discussions of a Transaction or as otherwise permitted hereunder. Neither party will disclose\nany Confidential Information of the other party to third parties except those of its Associates who are required to have the information in order to\nevaluate and discuss a Transaction. The receiving party shall inform its Associates of the confidential nature of the Confidential Information and\nshall instruct them to treat the information confidentially. The receiving party shall be responsible for any breach of this Agreement by its\nAssociates and agrees, at its sole expense, to take all commercially reasonable measures to restrain its Associates from disclosure or use of the\nConfidential Information in breach of this Agreement. Each party agrees that it will take commercially reasonable measures to protect the\nconfidentiality of, and to avoid having Confidential Information of the other party enter the public domain, become publicly available, or be held\nby persons not authorized hereunder to have such Confidential Information, which measures shall include at least the same degree of care that the\nreceiving party utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other party in writing of\nany misuse or misappropriation of such Confidential Information of the other party that may come to its attention.\n2. Nonpublicity. The existence and the terms of this Agreement, any Transaction, the fact that any Confidential Information has been\nprovided to the other party, and the existence, nature and status of any discussions between the parties shall be treated as Confidential\nInformation hereunder, shall be maintained in strict confidence by the parties hereto and by their respective Associates and, subject to Section 3\nof this Agreement, shall not be disclosed to any third party.\n3. Required Disclosure. In the event that a receiving party or its Associates is or becomes legally compelled under applicable law,\nregulation or securities exchange listing agreement, or by a competent governmental, administrative or regulatory authority or in a proceeding\nbefore a court, arbitrator or administrative agency, whether or not as a result of a Transaction to which the Company has consented, to disclose\nany portion of the Confidential Information of a disclosing party, that discussions or negotiations between the parties hereto are taking place or\nhave taken place, or any of the terms, conditions or other facts with respect to a Transaction, including the status thereof, the receiving party will,\nand will direct its Associates to, provide the disclosing party with prompt written notice (unless prohibited by law) of such legal compulsion, and\nshall delay disclosure, if and to the extent permitted or practicable, until the disclaiming party has had an opportunity to seek a protective order or\nother appropriate remedy or to waive compliance by the receiving party and/or its Associates with the relevant provisions of this Agreement. In\nthe event that a protective order or other remedy is not obtained in such a proceeding, or the disclosing party fails to waive compliance with the\nrelevant provisions of this Agreement, the receiving party agrees that it will, and will direct its Associates to, disclose only that Confidential\nInformation of the disclosing party which its counsel advises\nis legally required to be disclosed and will exercise commercially reasonable efforts, and will direct its Associates to exercise their commercially\nreasonable efforts, at the request and expense of the disclosing party, to cooperate with the disclosing party in its efforts to obtain reliable\nassurance that confidential treatment will be accorded the Confidential Information which is so disclosed.\n4. No License Granted. Nothing in this Agreement is intended to grant any rights to either party under any patent, copyright, trade secret\nor other intellectual property right, nor shall this Agreement grant either party any rights in or to the other party’s Confidential Information,\nexcept the limited right to review such Confidential Information solely for the purposes of determining whether to enter into, and the undertaking\nof or the advising with respect to, a Transaction.\n5. No Representation of Accuracy.· Each party acknowledges that neither the other party nor any of its Associates has made any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information made available by the other\nparty or its Associates. Each party agrees that, except as set forth in a definitive agreement executed by the parties, neither party nor any of its\nAssociates shall have any liability to the other party or to any of its Associates relating to or resulting from the use of such other party’s\nConfidential Information or any errors therein m omissions therefrom. Only those representations or warranties made in a definitive agreement,\nwhen, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n6. Definitive Agreements. Each party acknowledges and agrees that other than with respect to the matters specifically set forth herein, no\ncontract or agreement providing a Transaction shall be deemed to exist between the parties unless and until a definitive agreement has been\nexecuted and delivered. The parties further agree that each party reserves the right, in its sole discretion, to reject any and all proposals made by\nthe other party or any of its Associates with regard to a Transaction and to terminate discussions or negotiations at any time.\n7. Similar Products. Each disclosing party acknowledges that the receiving party or its Associates may currently or in the future be\ndeveloping information internally, or receiving information from other parties, that is similar to the disclosing party’s Confidential Information.\nNothing in this Agreement will prohibit the receiving party or its Associates from developing, manufacturing, marketing, selling, servicing or\nsupporting or having developed, manufactured, marketed, sold, serviced or supported for it products, concepts, systems or techniques that are\nsimilar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the disclosing party’s Confidential\nInformation, provided that the receiving party and its Associates do not use any of the disclosing party’s Confidential Information in connection\nwith such activities. Neither party nor its respective Associates shall have any obligation to limit or restrict the assignment of its respective\nemployees or consultants as a result of their having had access to Confidential Information of the other party or its Associates.\n8. Residuals. The receiving party’s employees may use any Residuals for any purpose, provided that this paragraph does not grant or\nimply any license or other right to use any patent, trademark, copyright, mask work right or other intellectual property right. “Residuals” means\ninformation that is retained, as general knowledge and experience, in the\nunaided memory of the receiving party’s employees who have had access to the disclosing party’s Confidential Information within the scope of\nthe receiving party’s obligations under this Agreement, but who no longer have access to such Confidential Information. However, Residuals\ndoes not include any detailed financial or personnel data. The ability to use Residuals shall be narrowly construed, is intended only to alleviate\nthe possibility of inadvertent breach of this Agreement as a result of routine, unaided memory retention, and does not allow the receiving party to\nuse or disclose information known to the receiving party to be Confidential Information that is subject to this Agreement. The memory of an\nemployee of the receiving party is unaided if such employee has not intentionally memorized the Confidential Information or retained notes or\nother aids to such memory,\n9. Commercial Relationship Use. Notwithstanding any obligations or restrictions to the contrary contained herein, if during due diligence\nreview, HPE learns of flaws or problems with Company’s products, software, services or intellectual property rights, the Associates of HPE\nevaluating the potential Transaction may share such information with the Associates of HPE who are responsible for purchasing such products,\nsoftware or services or licensing such intellectual property on behalf of HPE (“Purchasing Associates”). For avoidance of doubt, Purchasing\nAssociates of the receiving party that receive such information agree to be bound by the terms of this Agreement. In the event any Confidential\nInformation is disclosed pursuant to this Section 9, HPE shall notify the Company of any information shared with Associates of HPE within\nfifteen (15) business days after such disclosure.\n10. Termination of Discussions. Following written notice by one party to another of the termination of discussions between the parties,\nupon written request of the disclosing party, the receiving party shall take reasonable steps to instruct all persons involved in the Transaction to\ndestroy all Confidential Information furnished to the receiving party by or on behalf of the disclosing party pursuant to this Agreement.\nNotwithstanding the foregoing, the receiving party and its Associates may retain any Confidential Information to the extent required pursuant to\nthe regulatory compliance or record retention policies of such receiving party or Associate.\n11. Term. The foregoing commitments of either party in this Agreement regarding the confidentiality and non-use of Confidential\nInformation shall survive any termination of discussions between the parties and shall continue for a period of eighteen (18) months following\nthe date of this Agreement.\n12. Attorney-Client Privilege. To the extent that any Confidential Information of the disclosing party may include materials subject to the\nattorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or\ngovernmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their\ndesire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the\nconfidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. All Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine and other\napplicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine,\n13. Notice. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in\nwriting and shall he deemed properly given on the day of delivery (or, if such date is not a business day, on the first business day after delivery) if\ndelivered by hand or email (if submitting by email, substantive discussions to be included only in password protected attachments) (with\nconfirmation of delivery), or on the first business day after being sent by overnight courier or overnight express delivery service (in each case,\nwith confirmation of delivery) to the address set forth beneath the name of such party below (or to such other address as such party shall have\nspecified in a written notice given to the other parties hereto):\nif to HPE:\nHewlett Packard Enterprise Company\n3000 Hanover Street\nPalo Alto, CA 94304\nAttn: General Counsel\nif to the Company:\nNimble Storage, Inc.\n211 River Oaks Parkway\nSan Jose, CA 95134\nAttn: General Counsel\nGC@nimblestorage.com\n14. Governing Law and Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the\nState of Delaware applicable to agreements made and to be performed within that state. Each of the parties hereby agrees and irrevocably\nconsents to personal jurisdiction and venue in any federal or state court within Wilmington, Delaware, having subject matter jurisdiction, for the\npurposes of any action, suit or proceeding arising out of or relating to this agreement. To the fullest extent permitted by law, each of the parties\nhereby agrees to waive trial by jury in any action proceeding or counterclaim brought by or on behalf of either party with respect to any matter\nwhatsoever relating to this Agreement.\n15. Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto and supersedes all other prior\nagreements and understandings, both written and oral, among or between any of the parties with respect to the subject matter hereof and thereof.\nAll modifications of, waivers of and amendments to this letter agreement must be in writing and signed by both parties hereto.\n16. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one instrument. Any counterpart signed by an authorized representative of a party and delivered to the other party by\nemail, facsimile, PDF, or other similar electronic means shall be deemed an original counterpart and duly delivered.\n[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK]\nIN WITNESS WHEREOF, the parties have executed this Mutual Non-Disclosure Agreement as of the day and year first above written.\nNIMBLE STORAGE, INC.\nBy: /s/ Suresh Vasudevan\nName: Suresh Vasudevan\nTitle: CEO\nHEWLETT PACKARD ENTERPRISE\nCOMPANY\nBy: /s/ Vishal Bhagwati\nName: Vishal Bhagwati\nTitle: SVP – Corporate Development
82f5ce1881d8ab5988704c205b98b498.pdf	jurisdiction party	EXHIBIT B\nCONFIDENTIAL INFORMATION, ASSIGNMENT OF RIGHTS,\nNON-SOLICITATION AND NON-COMPETITION AGREEMENT\nIn consideration of my continued employment with Amber Road, Inc., or any of its subsidiaries, in connection with the\nperformance of my duties as an employee of the Amber Road, Inc. or any of its subsidiaries (“Company”) (hereinafter, my\n"Employment"), I hereby agree and acknowledge effective as of May __, 2016 that:\nConfidential Information\n1.\nAs a result of my Employment, I may come to possess Confidential Information, and the Company has informed me that it\nwill not retain me unless I agree to the terms of this Agreement and abide by them. As used in this Agreement, "Confidential\nInformation" includes, without limitation, information, whether or not in tangible form, which has not been publicly disclosed\nregarding Company, any of Company's customers, remarketing and/or support agreements made between Company and its\nbusiness partners which disclose product data, commission rates, territories, quotas, and terms of licenses; the identities and\nlocations of vendors and consultants furnishing materials and services to Company and the terms of such arrangements\n(including prices) negotiated by Company with such vendors and consultants; data relating to sales and license volumes, by\ncustomer, by location or by product; data relating to consulting agreements between Company and its customers which\ndisclose billing rates, budgets, deliverables, time schedules and staff assignments; customer and product licensee and\nprospective product licensee lists; financial information that has not been released to the public by Company; employee lists\nof Company; future business plans, licensing strategies, advertising campaigns and the like; data provided to you which is\nmarked as confidential or proprietary to Company, one of Company’s customers or business partners; proposed or actual\nacquisitions of stock or assets by Company; and/or any other information concerning or used in Company's business, its\nmanner of operations, its plan, processes or other data.\nThe definition of Confidential Information also shall include “Trade Secrets”, which are defined as the whole or any portion\nor phase of any scientific or technical information, design, process, procedure, formula, data-processing technique, computer\nprogram, or improvement that is valuable and secret (in the sense that it is not generally known to competitors of Company\nor competitors of its business partners). To the extent consistent with the foregoing, Trade Secrets include, without\nlimitation, the specialized information and technology embodied in computer program material, including source and object\ncode, system and user documentation, and program and system designs that provide Company or its business partners with\nan advantage over their competitors in the development, sales, implementation and support of their application software and\nproducts.\nI acknowledge that Company has developed its Confidential Information through its own efforts and at great expense. I\nfurther acknowledge that Company has a legitimate interest in protecting its Confidential Information.\n2.\nI will not at any time, except as required by my duties at Company, duplicate, remove, transfer, use, disclose or communicate,\nor knowingly allow any other person to duplicate, remove, transfer, use, disclose or communicate, any Confidential\nInformation. I will safeguard all Confidential Information at all times so that it is not exposed to, or taken by, unauthorized\npersons and will exercise my best efforts to assure its safekeeping. I understand that the maintenance of the confidentiality of\nConfidential Information is material and essential to Company and its disclosure would have a severe adverse effect on the\nconduct of Company's business, and Company's competitive position and goodwill.\n3.\nUpon termination of my Employment, whether voluntary or involuntary, or upon Company's request at any time during the\nterm of my Employment, I will deliver to Company all written and other materials which contain or relate to Confidential\nInformation, whether formal or informal, whether prepared by me or by\nothers and whether required by my employment or for my personal use, including, without limitation, all documents, notes,\ncomputer programs and data prepared for or stored in or obtained from any automated information system, all of which\nmaterials shall be and remain the property of Company. In addition, I shall also provide any information, such as passwords\nor codes, necessary to allow Company to fully utilize its property.\n4.\nI will not make any unauthorized disclosure of trade secrets or confidential information to any third person, including any\nsuch information which is subject to a confidentiality agreement between Company and such third person, to which I gain\naccess as a result of my Employment.\n5.\nMy obligations under this Agreement will remain in effect both during the term of my Employment and thereafter, whatever\nthe reason for termination of my Employment, and shall survive any termination of this Agreement.\nAssignment of Right\n6.\n(a) All intellectual property in whatever form including, without limitation, inventions, discoveries, ideas,\ncomputer programs, programs based upon or developed from computer programs, improvements, codes,\nmethods, algorithms, trade secrets, know-how, system documentation, technical data, drawings, flow\ncharts, prototypes, design specifications, and any other documentation, notes and materials related to the\nforegoing (whether or not patentable or copyrightable) that are conceived or made by me, either alone or\nwith others, during the course of or derived from my Employment by Company and in any way related to\nmy Employment or to any business in which Company is engaged at any time during the term of my\nEmployment or (if it should reasonably be known by me) is considering in engaging ("Discoveries"), shall\nbe deemed to be "works made for hire" if permitted by applicable law and shall belong to Company.\n(b) I will promptly disclose all Discoveries to Company.\n(c) To the extent that any Discovery does not constitute a work made for hire pursuant to applicable law, I hereby\ntransfer, grant, convey, assign and relinquish exclusively to Company all of my rights to, title to and interest in all\nDiscoveries, in perpetuity (or for the longest period of time otherwise permitted by law), including:\n(i) all of my rights, title, interest, and benefit (including the right to make, use, or sell under patent law; to copy,\nadapt, distribute, display, and perform under copyright law; and to use and disclose under trade secret law) in\nand to all United States and foreign patents and patent applications, patent license rights, patentable inventions,\ntrade secrets, trademarks, service marks, trade names (including, in the case of trademarks, service marks and\ntrade names, all goodwill pertaining thereto), copyrights, technology licenses, know-how, confidential\ninformation, shop rights, and all other intellectual property rights owned or claimed or acquired in the future by\nme as embodied in the Discoveries; and\n(ii) all of my rights, title, interest, and benefit and all powers and privileges, in, to, and under all technical data,\ndrawings, prototypes, engineering files, system documentation, flow charts, and design specifications\ndeveloped by, owned, or acquired previously or in the future by me in connection with the development of the\nprogramming, inventions, processes, and apparatus entailed by the Discoveries.\n(d) I will execute and deliver, from time to time after the date hereof, upon Company's request, such further conveyance\ninstruments, and take such further actions, as may be necessary or desirable to evidence more fully the transfer of\nownership of all the Discoveries to Company, or the original ownership of all the Discoveries on the part of Company,\nto the fullest extent possible. I therefore agree to:\n2\n(i) execute, acknowledge, and deliver any affidavits or documents of assignment and conveyance regarding the\nDiscoveries.\n(ii) provide testimony in connection with any proceeding affecting the right, title, interest, or benefit of Company in\nor to the Discoveries.\n(iii) perform any other acts deemed necessary to carry out the intent of this Agreement including, without limitation,\nassisting in the application, perfection, maintenance and enforcement of the Discoveries and all rights relating\nthereto.\n(e) In furtherance of this Agreement, I hereby acknowledge that, from this date forward, or a previous date if rights were\nearlier transferred, Company has succeeded to all of my rights, title, and standing to:\n(i) receive all rights and benefits pertaining to the Discoveries.\n(ii) institute and prosecute all suits and proceedings and take all actions that Company, in its sole discretion may\ndeem necessary or proper to collect, assert, or enforce any claim, right, or title of any kind in and to any and all\nof the Discoveries.\n(iii) defend and compromise any and all such actions, suits, or proceedings relating to such transferred and assigned\nrights, title, interest, and benefits, and do all other such acts and things in relation thereto as Company, in its\nsole discretion, deems advisable.\n(f) Upon termination of my Employment, I will immediately surrender to Company all materials and work product in my\npossession or within my control (including all copies thereof) relating in any way to the Discoveries.\n(g) To effectuate the terms of this paragraph 6, I hereby name and irrevocably constitute and appoint Company, with the\nfull power of substitution therein, as my true and lawful attorney-in-fact to exercise the rights assigned hereby.\n(h) I represent and warrant that no consents of any other parties are necessary or appropriate under any agreements\nconcerning any of the Discoveries in order for the transfer and assignment of any of the Discoveries under this\nAgreement to be legally effective.\n(i) I represent and warrant that, to the best of my knowledge, upon consummation of this Agreement, Company will have\ngood and marketable title to the Discoveries, free and clear of any and all liens, mortgages, encumbrances, pledges,\nsecurity interests, or charges of any nature whatsoever.\n7.\nI have listed on the Schedule attached to this Agreement all inventions, if any, conceived or made by me prior to my\nEmployment by Company and which are to be excluded from this Agreement, as well as any restrictions on any work for\nCompany or any obligations under this Agreement arising from any prior employment or other agreement. I am not required\nto list on the Schedule any inventions conceived or made by me prior to my Employment by Company that (i) are unrelated\nto the business, operations, services or products of Company or (ii) are solely related to my personal hobbies and not to the\nbusiness, operations, service or products of Company.\nNon-Solicitation\n8.\nI agree that all Company relationships, whether or not contractual, including but not limited to, relationships with employees,\ncontractors, consultants, partners (collectively “Relationships”) are the sole property of Company. I agree that, during and\nafter my Employment with Company, unless Company provides written consent, I will not directly or indirectly provide\ninformation, including but not limited to,\n3\nemployee lists, resumes, independent contractor agreements, employment information and contact information, to other\nentities or individuals. I agree not to interfere with these Relationships by hiring or soliciting for hire individuals or entities,\ndirectly or indirectly, to work with or for any person or entity external to Company without the written consent of Company,\nduring, and for a period of 24 months after the termination of, my Employment with Company.\n9.\nI agree that all Company relationships with customers, partners, resellers, vendors and suppliers and all information, whether\nor not in writing, are and shall be the exclusive property of Company (collectively "Customer Information"). Customer\nInformation shall not be used outside the duties of my Employment with Company without the written consent of Company,\neither during or after the termination of my Employment with Company.\nNon-Competition\n10.\n(a) I further agree that, during the term of my Employment with Company, and for a period of twenty-four months\nfollowing the termination (whether voluntary or involuntary) of such Employment, I will not engage in any\ncapacity (including without limitation, as an employee, officer, director, consultant or shareholder (other\nthan as an owner of 1% or less of the outstanding shares of any publicly-traded company), in any\nCompeting Business in any geographical area in which Company (or any of Company’s affiliates) transacts\nsuch business. For purposes of this Agreement a “Competing Business” means any business engaged in\nproviding services similar to Company’s or in the marketing, sale, development and distribution of products\nthat are similar to Company's.\n(b) The covenants contained in this Section 10 shall be enforced to the fullest extent permissible under the laws of each\njurisdiction in which enforcement is sought. Accordingly, I agree that if any of the provisions of this Section 10 shall\nbe adjudicated to be invalid or unenforceable for any reason whatsoever, said provision shall be construed (only with\nrespect to the operation thereof in the particular jurisdiction in which such adjudication is made) by limiting and\nreducing it so as to be enforceable to the fullest extent permissible, without invalidating the remaining provisions of\nthis Agreement or affecting the validity or enforceability of said provision in any other jurisdiction.\n11. Breach by me of any provision of this Agreement will cause Company irreparable injury and damage for which money\ndamages may not be adequate. In addition to all other remedies that are available to it, Company shall be entitled to\npreliminary and permanent injunctive and equitable relief to prevent or remedy a breach of this Agreement by me.\n12. This Agreement:\n(a) shall bind my heirs, executors, administrators, legal representatives and assigns, and supersedes any prior agreements\nconcerning Confidential Information executed by me with or in favor of Company, if any.\n(b) constitutes the entire understanding between Company and me concerning Confidential Information and no waiver or\namendment of any provision of this Agreement shall be valid or effective unless in writing and signed by the party\nagainst whom enforcement thereof is sought.\n(c) shall be enforceable by Company or any of its successors or assigns.\n(d) shall be enforced and construed in accordance with the laws of the State of New Jersey, without giving effect to the\nchoice of laws principles of New Jersey that would result in the application of the laws of any other jurisdiction.\n4\n13. Should any part of this Agreement for any reason be declared by any court of competent jurisdiction to be invalid, that\ndecision shall not affect the validity of the remaining portion, which shall continue in full force and effect as if this\nAgreement had been executed with the invalid portion eliminated, provided, however, that this Agreement shall be\ninterpreted to carry out to the greatest extent possible the intent of the parties and to provide to Company substantially the\nsame benefits as Company would have received under this Agreement if such invalid part of this Agreement had been\nenforceable.\n14. I represent that I am not a party to, or bound by, any confidentiality agreements, non-compete agreements, restrictive\ncovenants, non-solicitation agreements, invention and assignment agreements, or any other agreements or obligations to any\nformer employer or other entity that will prevent me from performing, or impede me in performance of service for Company.\nI also represent that I have disclosed to Company all contracts or agreements that could prevent me from carrying out my\nresponsibilities for Company. I further acknowledge that I have not and will not take or remove from my prior employment\nthe originals or copies of any documents maintained as confidential or proprietary information by my prior employer, and that\nI have not and will not disclose any confidential or proprietary information of my prior employer. Therefore, I am “free and\nclear” to be employed by Company. I acknowledge that Company is relying on my representation in making its offer of\nemployment, in employing me, or in continuing my employment with Company. I further agree not to enter into any\nagreement either written or oral in conflict with my Employment with Company.\n15. I further agree that this Agreement does not constitute a contract of employment, and that I have the right to resign and\nCompany has the right to terminate my employment at any time, for any reason, with or without cause, subject to the\nprovisions of any written employment agreement between Company and me. I hereby acknowledge that I have read this\nAgreement, understand it and agree to be bound by its restrictions.\nJAMES W.\nPREUNINGER\nMay __, 2016\n(Date\nSigned)\nACCEPTED AND DATED AS OF MAY __, 2016\nAMBER ROAD, INC.\nBy: ___________________________\nName:\nTitle:\n5	EXHIBIT B\nCONFIDENTIAL INFORMATION, ASSIGNMENT OF RIG HTS,\nNON-SOLICITATION AND NON-COMPETITION AG REEMENT\nIn consideration of my continued employment with Amber Road, Inc., or any of its subsidiaries, in connection with the\nperformance of my duties as an employee of the Amber Road, Inc. or any of its subsidiaries (”Company”) (hereinafter, my\n"Employment"), I hereby agree and acknowledge effective as of May __, 2016 that:\nC onfidential Information\n1. As a result of my Employment, I may come to possess Confidential Information, and the Company has informed me that it\nwill not retain me unless I agree to the terms of this Agreement and abide by them. As used in this Agreement, "Confidential\nInformation" includes, without limitation, information, whether or not in tangible form, which has not been publicly disclosed\nregarding Company, any of Company's customers, remarketing and/or support agreements made between Company and its\nbusiness partners which disclose product data, commission rates, territories, quotas, and terms of licenses; the identities and\nlocations of vendors and consultants furnishing materials and services to Company and the terms of such arrangements\n(including prices) negotiated by Company with such vendors and consultants; data relating to sales and license volumes, by\ncustomer, by location or by product; data relating to consulting agreements between Company and its customers which\ndisclose billing rates, budgets, deliverables, time schedules and staff assignments; customer and product licensee and\nprospective product licensee lists; financial information that has not been released to the public by Company; employee lists\nof Company; future business plans, licensing strategies, advertising campaigns and the like; data provided to you which is\nmarked as confidential or proprietary to Company, one of Company's customers or business partners; proposed or actual\nacquisitions of stock or assets by Company; and/or any other information concerning or used in Company's business, its\nmanner of operations, its plan, processes or other data.\nThe definition of Confidential Information also shall include ”Trade Secrets”, which are defined as the whole or any portion\nor phase of any scientific or technical information, design, process, procedure, formula, data-processing technique, computer\nprogram, or improvement that is valuable and secret (in the sense that it is not generally known to competitors of Company\nor competitors of its business partners). To the extent consistent with the foregoing, Trade Secrets include, without\nlimitation, the specialized information and technology embodied in computer program material, including source and object\ncode, system and user documentation, and program and system designs that provide Company or its business partners with\nan advantage over their competitors in the development, sales, implementation and support of their application software and\nproducts.\nI acknowledge that Company has developed its Confidential Information through its own efforts and at great expense. I\nfurther acknowledge that Company has a legitimate interest in protecting its Confidential Information.\n2. I will not at any time, except as required by my duties at Company, duplicate, remove, transfer, use, disclose or communicate,\nor knowingly allow any other person to duplicate, remove, transfer, use, disclose or communicate, any Confidential\nInformation. I will safeguard all Confidential Information at all times so that it is not exposed to, or taken by, unauthorized\npersons and will exercise my best efforts to assure its safekeeping. I understand that the maintenance of the confidentiality of\nConfidential Information is material and essential to Company and its disclosure would have a severe adverse effect on the\nconduct of Company's business, and Company's competitive position and goodwill.\n3. Upon termination of my Employment, whether voluntary or involuntary, or upon Company's request at any time during the\nterm of my Employment, I will deliver to Company all written and other materials which contain or relate to Confidential\nInformation, whether formal or informal, whether prepared by me or by\nothers and whether required by my employment or for my personal use, including, without limitation, all documents, notes,\ncomputer programs and data prepared for or stored in or obtained from any automated information system, all of which\nmaterials shall be and remain the property of Company. In addition, I shall also provide any information, such as passwords\nor codes, necessary to allow Company to fully utilize its property.\n4. I will not make any unauthorized disclosure of trade secrets or confidential information to any third person, including any\nsuch information which is subject to a confidentiality agreement between Company and such third person, to which I gain\naccess as a result of my Employment.\n5. My obligations under this Agreement will remain in effect both during the term of my Employment and thereafter, whatever\nthe reason for termination of my Employment, and shall survive any termination of this Agreement.\nAssignment of Right\n6. (a) All intellectual property in whatever form including, without limitation, inventions, discoveries, ideas,\ncomputer programs, programs based upon or developed from computer programs, improvements, codes,\nmethods, algorithms, trade secrets, know-how, system documentation, technical data, drawings, flow\ncharts, prototypes, design specifications, and any other documentation, notes and materials related to the\nforegoing (whether or not patentable or copyrightable) that are conceived or made by me, either alone or\nwith others, during the course of or derived from my Employment by Company and in any way related to\nmy Employment or to any business in which Company is engaged at any time during the term of my\nEmployment or (if it should reasonably be known by me) is considering in engaging ("Discoveries"), shall\nbe deemed to be "works made for hire" if permitted by applicable law and shall belong to Company.\n(b) I will promptly disclose all Discoveries to Company.\n(c) To the extent that any Discovery does not constitute a work made for hire pursuant to applicable law, I hereby\ntransfer, grant, convey, assign and relinquish exclusively to Company all of my rights to, title to and interest in all\nDiscoveries, in perpetuity (or for the longest period of time otherwise permitted by law), including:\n(i) all of my rights, title, interest, and benefit (including the right to make, use, or sell under patent law; to copy,\nadapt, distribute, display, and perform under copyright law; and to use and disclose under trade secret law) in\nand to all United States and foreign patents and patent applications, patent license rights, patentable inventions,\ntrade secrets, trademarks, service marks, trade names (including, in the case of trademarks, service marks and\ntrade names, all goodwill pertaining thereto), copyrights, technology licenses, know-how, confidential\ninformation, shop rights, and all other intellectual property rights owned or claimed or acquired in the future by\nme as embodied in the Discoveries; and\nA\n,_‘.\n,_‘.\nV\nall of my rights, title, interest, and benefit and all powers and privileges, in, to, and under all technical data,\ndrawings, prototypes, engineering files, system documentation, flow charts, and design specifications\ndeveloped by, owned, or acquired previously or in the future by me in connection with the development of the\nprogramming, inventions, processes, and apparatus entailed by the Discoveries.\nI will execute and deliver, from time to time after the date hereof, upon Company's request, such further conveyance\ninstruments, and take such further actions, as may be necessary or desirable to evidence more fully the transfer of\nownership of all the Discoveries to Company, or the original ownership of all the Discoveries on the part of Company,\nto the fullest extent possible. I therefore agree to:\n(e)\n(i) execute, acknowledge, and deliver any affidavits or documents of assignment and conveyance regarding the\nDiscoveries.\n(ii) provide testimony in connection with any proceeding affecting the right, title, interest, or benefit of Company in\nor to the Discoveries.\n(iii) perform any other acts deemed necessary to carry out the intent of this Agreement including, without limitation,\nassisting in the application, perfection, maintenance and enforcement of the Discoveries and all rights relating\nthereto.\nIn furtherance of this Agreement, I hereby acknowledge that, from this date forward, or a previous date if rights were\nearlier transferred, Company has succeeded to all of my rights, title, and standing to:\n(i) receive all rights and benefits pertaining to the Discoveries.\n(ii) institute and prosecute all suits and proceedings and take all actions that Company, in its sole discretion may\ndeem necessary or proper to collect, assert, or enforce any claim, right, or title of any kind in and to any and all\nof the Discoveries.\n(iii) defend and compromise any and all such actions, suits, or proceedings relating to such transferred and assigned\nrights, title, interest, and benefits, and do all other such acts and things in relation thereto as Company, in its\nsole discretion, deems advisable.\nUpon termination of my Employment, I will immediately surrender to Company all materials and work product in my\npossession or within my control (including all copies thereof) relating in any way to the Discoveries.\nTo effectuate the terms of this paragraph 6, I hereby name and irrevocably constitute and appoint Company, with the\nfull power of substitution therein, as my true and lawful attorney-in-fact to exercise the rights assigned hereby.\nI represent and warrant that no consents of any other parties are necessary or appropriate under any agreements\nconcerning any of the Discoveries in order for the transfer and assignment of any of the Discoveries under this\nAgreement to be legally effective.\nI represent and warrant that, to the best of my knowledge, upon consummation of this Agreement, Company will have\ngood and marketable title to the Discoveries, free and clear of any and all liens, mortgages, encumbrances, pledges,\nsecurity interests, or charges of any nature whatsoever.\n7. I have listed on the Schedule attached to this Agreement all inventions, if any, conceived or made by me prior to my\nEmployment by Company and which are to be excluded from this Agreement, as well as any restrictions on any work for\nCompany or any obligations under this Agreement arising from any prior employment or other agreement. I am not required\nto list on the Schedule any inventions conceived or made by me prior to my Employment by Company that (i) are unrelated\nto the business, operations, services or products of Company or (ii) are solely related to my personal hobbies and not to the\nbusiness, operations, service or products of Company.\nNon-Solicitation\n8. I agree that all Company relationships, whether or not contractual, including but not limited to, relationships with employees,\ncontractors, consultants, partners (collectively ”Relationships") are the sole property of Company. I agree that, during and\nafter my Employment with Company, unless Company provides written consent, 1 will not directly or indirectly provide\ninformation, including but not limited to,\nemployee lists, resumes, independent contractor agreements, employment information and contact information, to other entities or individuals. I agree not to interfere with these Relationships by hiring or soliciting for hire individuals or entities, directly or indirectly, to work with or for any person or entity external to Company without the written consent of Company, during, and for a period of 24 months after the termination of, my Employment with Company. I agree that all Company relationships with customers, partners, resellers, vendors and suppliers and all information, whether or not in writing, are and shall be the exclusive property of Company (collectively "Customer Information“). Customer Information shall not be used outside the duties of my Employment with Company without the written consent of Company, either during or after the termination of my Employment with Company. Non-C ompetition 10. 11. 12. (a) I further agree that, during the term of my Employment with Company, and for a period of twenty-four months\nfollowing the termination (whether voluntary or involuntary) of such Employment, I will not engage in any\ncapacity (including without limitation, as an employee, officer, director, consultant or shareholder (other\nthan as an owner of 1% or less of the outstanding shares of any publicly-traded company), in any\nCompeting Business in any geographical area in which Company (or any of Company's affiliates) transacts\nsuch business. For purposes of this Agreement a ”Competing Business" means any business engaged in\nproviding services similar to Company' s or in the marketing, sale, development and distribution of products\nthat are similar to Company's.\nThe covenants contained in this Section 10 shall be enforced to the fullest extent permissible under the laws of each\njurisdiction in which enforcement is sought. Accordingly, I agree that if any of the provisions of this Section 10 shall\nbe adjudicated to be invalid or unenforceable for any reason whatsoever, said provision shall be construed (only with\nrespect to the operation thereof in the particular jurisdiction in which such adjudication is made) by limiting and\nreducing it so as to be enforceable to the fullest extent permissible, without invalidating the remaining provisions of\nthis Agreement or affecting the validity or enforceability of said provision in any other jurisdiction.\nBreach by me of any provision of this Agreement will cause Company irreparable injury and damage for which money damages may not be adequate. In addition to all other remedies that are available to it, Company shall be entitled to preliminary and permanent injunctive and equitable relief to prevent or remedy a breach of this Agreement by me. This A greement: shall bind my heirs, executors, administrators, legal representatives and assigns, and supersedes any prior agreements\nconcerning Confidential Information executed by me with or in favor of Company, if any.\nconstitutes the entire understanding between Company and me concerning Confidential Information and no waiver or\namendment of any provision of this Agreement shall be valid or effective unless in writing and signed by the party\nagainst whom enforcement thereof is sought.\nshall be enforceable by Company or any of its successors or assigns.\n(d) shall be enforced and construed in accordance with the laws of the State of New Jersey, without giving effect to the\nchoice of laws principles of New Jersey that would result in the application of the laws of any other jurisdiction.\n13.\n14.\n15.\nShould any part of this Agreement for any reason be declared by any court of competent jurisdiction to be invalid, that\ndecision shall not affect the validity of the remaining portion, which shall continue in full force and effect as if this\nA greement had been executed with the invalid portion eliminated, provided, however, that this A greement shall be\ninterpreted to carry out to the greatest extent possible the intent of the parties and to provide to Company substantially the\nsame benefits as Company would have received under this Agreement if such invalid part of this Agreement had been\nenforceable.\nI represent that I am not a party to, or bound by, any confidentiality agreements, non-compete agreements, restrictive\ncovenants, non- solicitation agreements, invention and assignment agreements, or any other agreements or obligations to any\nformer employer or other entity that will prevent me from performing, or impede me in performance of service for Company.\nI also represent that l have disclosed to Company all contracts or agreements that could prevent me from carrying out my\nresponsibilities for Company. I further acknowledge that l have not and will not take or remove from my prior employment\nthe originals or copies of any documents maintained as confidential or proprietary information by my prior employer, and that\nl have not and will not disclose any confidential or proprietary information of my prior employer. Therefore, I am ”free and\nclear” to be employed by Company. I acknowledge that Company is relying on my representation in making its offer of\nemployment, in employing me, or in continuing my employment with Company. I further agree not to enter into any\nagreement either written or oral in conflict with my Employment with Company.\nI further agree that this A greement does not constitute a contract of employment, and that l have the right to resign and\nCompany has the right to terminate my employment at any time, for any reason, with or without cause, subject to the\nprovisions of any written employment agreement between Company and me. I hereby acknowledge that l have read this\nAgreement, understand it and agree to be bound by its restrictions.\nJAMES W.\nPREUNINGER\nMay , 2016\n(Date\nSigned)\nACCEPTED AND DATED AS OF MAY __, 2016 AMBER ROAD, INC. By:  \nName:\nTitle:	EXHIBIT B\nCONFIDENTIAL INFORMATION, ASSIGNMENT OF RIGHTS,\nNON-SOLICITATION AND NON-COMPETITION AGREEMENT\nIn consideration of my continued employment with mber Road, Inc., or any of its subsidiaries, in connection with the\nperformance of my duties as an employee of the A mber Road, Inc. or any of its subsidiaries ("Company") (hereinafter, my\n"Employment"), I hereby agree and acknowledge effective as of May 2016 that:\nConfidential Information\n1.\nAs a result of my Employment, I may come to possess Confidential Information, and the Company has informed me that it\nwill not retain me unless I agree to the terms of this A greement and abide by them. As used in this A greement, "Confidential\nInformation" includes, without limitation information, whether or not in tangible form, which has not been publicly disclosed\nregarding Company, any of Company's customers, remarketing and/or support agreements made between Company and its\nbusiness partners which disclose product data, commission rates, territories, quotas, and terms of licenses; the identities and\nlocations of vendors and consultants furnishing materials and services to Company and the terms of such arrangements\n(including prices) negotiated by Company with such vendors and consultants; data relating to sales and license volumes, by\ncustomer, by location or by product; data relating to consulting agreements between Company and its customers which\ndisclose billing rates, budgets, deliverables, time schedules and staff assignments; customer and product licensee and\nprospective product licensee lists; financial information that has not been released to the public by Company; employee lists\nof Company; future business plans, licensing strategies, advertising campaigns and the like; data provided to you which is\nmarked as confidential or proprietary to Company, one of Company's customers or business partners; proposed or actual\nacquisitions of stock or assets by Company; and/or any other information concerning or used in Company's business, its\nmanner of operations, its plan, processes or other data.\nThe definition of Confidential Information also shall include "Trade Secrets", which are defined as the whole or any portion\nor phase of any scientific or technical information, design, process, procedure, formula, data-processing technique, computer\nprogram, or improvement that is valuable and secret (in the sense that it is not generally known to competitors of Company\nor competitors of its business partners) To the extent consistent with the foregoing, Trade Secrets include, without\nlimitation, the specialized information and technology embodied in computer program material, including source and object\ncode, system and user documentation, and program and system designs that provide Company or its business partners with\nan advantage over their competitors in the development sales, implementation and support of their application software and\nproducts.\nI acknowledge that Company has developed its Confidential Information through its own efforts and at great expense. I\nfurther acknowledge that Company has a legitimate interest in protecting its Confidential Information.\n2.\nI will not at any time, except as required by my duties at Company, duplicate, remove, transfer, use, disclose or communicate,\nor knowingly allow any other person to duplicate, remove, transfer, use, disclose or communicate, any Confidential\nInformation. I will safeguard all Confidential Information at all times so that it is not exposed to, or taken by, unauthorized\npersons and will exercise my best efforts to assure its safekeeping I understand that the maintenance of the confidentiality of\nConfidential Information is material and essential to Company and its disclosure would have a severe adverse effect on the\nconduct of Company's business, and Company's competitive position and goodwill.\n3.\nUpon termination of my Employment whether voluntary or involuntary, or upon Company's request at any time during the\nterm of my Employment, I will deliver to Company all written and other materials which contain or relate to Confidential\nInformation, whether formal or informal, whether prepared by me or by\nothers and whether required by my employment or for my personal use, including, without limitation, all documents, notes,\ncomputer programs and data prepared for or stored in or obtained from any automated information system, all of which\nmaterials shall be and remain the property of Company. In addition, I shall also provide any information, such as passwords\nor codes, necessary to allow Company to fully utilize its property.\n4.\nI will not make any unauthorized disclosure of trade secrets or confidential information to any third person, including any\nsuch information which is subject to a confidentiality agreement between Company and such third person to which I gain\naccess as a result of my Employment.\n5.\nMy obligations under this A greement will remain in effect both during the term of my Employment and thereafter, whatever\nthe reason for termination of my Employment, and shall survive any termination of this greement.\nAssignment of Right\n6.\n(a) All intellectual property in whatever form including, without limitation, inventions, discoveries, ideas,\ncomputer programs, programs based upon or developed from computer programs, improvements, codes,\nmethods, algorithms, trade secrets, know-how, system documentation, technical data, drawings, flow\ncharts, prototypes, design specifications, and any other documentation, notes and materials related to the\nforegoing (whether or not patentable or copyrightable) that are conceived or made by me, either alone or\nwith others during the course of or derived from my Employment by Company and in any way related to\nmy Employment or to any business in which Company is engaged at any time during the term of my\nEmployment or (if it should reasonably be known by me) is considering in engaging ("Discoveries"), shall\nbe deemed to be "works made for hire" if permitted by applicable law and shall belong to Company.\n(b)\nI will promptly disclose all Discoveries to Company.\n(c)\nTo the extent that any Discovery does not constitute a work made for hire pursuant to applicable law, I hereby\ntransfer, grant convey assign and relinquish exclusively to Company all of my rights to, title to and interest in all\nDiscoveries, in perpetuity (or for the longest period of time otherwise permitted by law), including:\n(i) all of my rights, title, interest, and benefit (including the right to make, use, or sell under patent law; to copy,\nadapt, distribute, display, and perform under copyright law; and to use and disclose under trade secret law) in\nand to all United States and foreign patents and patent applications, patent license rights, patentable inventions,\ntrade secrets, trademarks, service marks, trade names (including, in the case of trademarks, service marks and\ntrade names, all goodwill pertaining thereto), copyrights, technology licenses, know-how, confidential\ninfomation, shop rights, and all other intellectual property rights owned or claimed or acquired in the future by\nme as embodied in the Discoveries; and\n(ii) all of my rights, title, interest, and benefit and all powers and privileges, in, to, and under all technical data,\ndrawings, prototypes, engineering files, system documentation, flow charts, and design specifications\ndeveloped by, owned, or acquired previously or in the future by me in connection with the development of the\nprogramming, inventions processes, and apparatus entailed by the Discoveries.\n(d)\nI will execute and deliver, from time to time after the date hereof, upon Company's request, such further conveyance\ninstruments, and take such further actions, as may be necessary or desirable to evidence more fully the transfer of\nownership of all the Discoveries to Company, or the original ownership of all the Discoveries on the part of Company,\nto the fullest extent possible. I therefore agree to:\n2\n(i) execute, acknowledge, and deliver any affidavits or documents of assignment and conveyance regarding the\nDiscoveries.\n(ii) provide testimony in connection with any proceeding affecting the right, title, interest, or benefit of Company in\nor to the Discoveries.\n(iii) perform any other acts deemed necessary to carry out the intent of this A greement including, without limitation,\nassisting in the application, perfection, maintenance and enforcement of the Discoveries and all rights relating\nthereto.\n(e)\nIn furtherance of this A greement, I hereby acknowledge that, from this date forward, or a previous date if rights were\nearlier transferred, Company has succeeded to all of my rights, title, and standing to:\n(i) receive all rights and benefits pertaining to the Discoveries.\n(ii) institute and prosecute all suits and proceedings and take all actions that Company, in its sole discretion may\ndeem necessary or proper to collect, assert, or enforce any claim, right, or title of any kind in and to any and all\nof the Discoveries.\n(iii) defend and compromise any and all such actions, suits, or proceedings relating to such transferred and assigned\nrights title, interest, and benefits, and do all other such acts and things in relation thereto as Company, in its\nsole discretion, deems advisable.\n(f)\nUpon termination of my Employment, I will immediately surrender to Company all materials and work product in my\npossession or within my control (including all copies thereof) relating in any way to the Discoveries.\n(g)\nTo effectuate the terms of this paragraph 6, I hereby name and irrevocably constitute and appoint Company, with the\nfull power of substitution therein, as my true and lawful attomey-in-fact to exercise the rights assigned hereby.\n(h)\nI represent and warrant that no consents of any other parties are necessary or appropriate under any agreements\nconcerning any of the Discoveries in order for the transfer and assignment of any of the Discoveries under this\nA greement to be legally effective.\n(i)\nI represent and warrant that, to the best of my knowledge, upon consummation of this A greement, Company will have\ngood and marketable title to the Discoveries, free and clear of any and all liens, mortgages, encumbrances, pledges,\nsecurity interests, or charges of any nature whatsoever.\n7.\nI have listed on the Schedule attached to this Agreement all inventions, if any, conceived or made by me prior to my\nEmployment by Company and which are to be excluded from this A greement, as well as any restrictions on any work for\nCompany or any obligations under this A greement arising from any prior employment or other agreement I am not required\nto list on the Schedule any inventions conceived or made by me prior to my Employment by Company that (i) are unrelated\nto the business, operations, services or products of Company or (ii) are solely related to my personal hobbies and not to the\nbusiness, operations, service or products of Company.\nNon-Solicitation\n8.\nI agree that all Company relationships, whether or not contractual, including but not limited to, relationships with employees,\ncontractors, consultants, partners (collectively "Relationships") are the sole property of Company. I agree that, during and\nafter my Employment with Company, unless Company provides written consent, I will not directly or indirectly provide\ninformation including but not limited to,\n3\nemployee lists, resumes, independent contractor agreements, employment information and contact information, to other\nentities or individuals. I agree not to interfere with these Relationships by hiring or soliciting for hire individuals or entities,\ndirectly or indirectly, to work with or for any person or entity external to Company without the written consent of Company,\nduring, and for a period of 24 months after the termination of, my Employment with Company.\n9.\nI\nagree that all Company relationships with customers, partners, resellers, vendors and suppliers and all information whether\nor not in writing, are and shall be the exclusive property of Company (collectively "Customer Information"). Customer\nInformation shall not be used outside the duties of my Employment with Company without the written consent of Company,\neither during or after the termination of my Employment with Company.\nNon-c Competition\n10.\n(a) I further agree that, during the term of my Employment with Company, and for a period of twenty-four months\nfollowing the termination (whether voluntary or involuntary) of such Employment, I will not engage in any\ncapacity (including without limitation, as an employee, officer director, consultant or shareholder (other\nthan as an owner of 1% or less of the outstanding shares of any publicly-traded company), in any\nCompeting Business in any geographica area in which Company (or any of Company's affiliates) transacts\nsuch business. For purposes of this A greement a "Competing Business" means any business engaged in\nproviding services similar to Company's or in the marketing, sale, development and distribution of products\nthat are similar to Company's.\n(b)\nThe covenants contained in this Section 10 shall be enforced to the fullest extent permissible under the laws of each\njurisdiction in which enforcement is sought. A ccordingly, I agree that if any of the provisions of this Section 10 shall\nbe adjudicated to be invalid or unenforceable for any reason whatsoever, said provision shall be construed (only with\nrespect to the operation thereof in the particular jurisdiction in which such adjudication is made) by limiting and\nreducing it so as to be enforceable to the fullest extent permissible, without invalidating the remaining provisions of\nthis A greement or affecting the validity or enforceability of said provision in any other jurisdiction.\n11.\nBreach by me of any provision of this A greement will cause Company irreparable injury and damage for which money\ndamages may not be adequate. In addition to all other remedies that are available to it, Company shall be entitled to\npreliminary and permanent injunctive and equitable relief to prevent or remedy a breach of this A greement by me.\n12.\nThis greement:\n(a)\nshall bind my heirs, executors, administrators, legal representatives and assigns, and supersedes any prior agreements\nconcerning Confidential Information executed by me with or in favor of Company, if any.\n(b)\nconstitutes the entire understanding between Company and me concerning Confidential Information and no waiver or\namendment of any provision of this A greement shall be valid or effective unless in writing and signed by the party\nagainst whom enforcement thereof is sought.\n(c)\nshall be enforceable by Company or any of its successors or assigns.\n(d)\nshall be enforced and construed in accordance with the laws of the State of New Jersey, without giving effect to the\nchoice of laws principles of New Jersey that would result in the application of the laws of any other jurisdiction.\n4\n13.\nShould any part of this A greement for any reason be declared by any court of competent jurisdiction to be invalid, that\ndecision shall not affect the validity of the remaining portion, which shall continue in full force and effect as if this\nA greement had been executed with the invalid portion eliminated, provided, however, that this A greement shall be\ninterpreted to carry out to the greatest extent possible the intent of the parties and to provide to Company substantially the\nsame benefits as Company would have received under this A greement if such invalid part of this A greement had been\nenforceable.\n14.\nI represent that I am not a party to, or bound by, any confidentiality agreements, non-compete agreements, restrictive\ncovenants, non-solicitation agreements, invention and assignment agreements, or any other agreements or obligations to any\nformer employer or other entity that will prevent me from performing, or impede me in performance of service for Company.\nI also represent that I have disclosed to Company all contracts or agreements that could prevent me from carrying out my\nresponsibilities for Company. I further acknowledge that I have not and will not take or remove from my prior employment\nthe originals or copies of any documents maintained as confidential or proprietary information by my prior employer, and that\nI have not and will not disclose any confidential or proprietary information of my prior employer. Therefore, I am "free and\nclear" to be employed by Company. I acknowledge that Company is relying on my representation in making its offer of\nemployment, in employing me, or in continuing my employment with Company. I further agree not to enter into any\nagreement either written or oral in conflict with my Employment with Company.\n15.\nI further agree that this A greement does not constitute a contract of employment, and that I have the right to resign and\nCompany has the right to terminate my employment at any time, for any reason, with or without cause, subject to the\nprovisions of any written employment agreement between Company and me. I hereby acknowledge that I have read this\nAgreement, understand it and agree to be bound by its restrictions.\nJAMES W.\nPREUNINGER\nMay 2016\n(Date\nSigned)\nACCEPTED AND DATED AS OF MAY 2016\nAMBER ROAD, INC.\nBy:\nName:\nTitle:\n5	EXHIBIT B\nCONFIDENTIAL INFORMATION, ASSIGNMENT OF RIGHTS,\nNON-SOLICITATION AND NON-COMPETITION AGREEMENT\nIn consideration of my continued employment with Amber Road, Inc., or any of its subsidiaries, in connection with the\nperformance of my duties as an employee of the Amber Road, Inc. or any of its subsidiaries (“Company”) (hereinafter, my\n"Employment"), I hereby agree and acknowledge effective as of May __, 2016 that:\nConfidential Information\n1.\nAs a result of my Employment, I may come to possess Confidential Information, and the Company has informed me that it\nwill not retain me unless I agree to the terms of this Agreement and abide by them. As used in this Agreement, "Confidential\nInformation" includes, without limitation, information, whether or not in tangible form, which has not been publicly disclosed\nregarding Company, any of Company's customers, remarketing and/or support agreements made between Company and its\nbusiness partners which disclose product data, commission rates, territories, quotas, and terms of licenses; the identities and\nlocations of vendors and consultants furnishing materials and services to Company and the terms of such arrangements\n(including prices) negotiated by Company with such vendors and consultants; data relating to sales and license volumes, by\ncustomer, by location or by product; data relating to consulting agreements between Company and its customers which\ndisclose billing rates, budgets, deliverables, time schedules and staff assignments; customer and product licensee and\nprospective product licensee lists; financial information that has not been released to the public by Company; employee lists\nof Company; future business plans, licensing strategies, advertising campaigns and the like; data provided to you which is\nmarked as confidential or proprietary to Company, one of Company’s customers or business partners; proposed or actual\nacquisitions of stock or assets by Company; and/or any other information concerning or used in Company's business, its\nmanner of operations, its plan, processes or other data.\nThe definition of Confidential Information also shall include “Trade Secrets”, which are defined as the whole or any portion\nor phase of any scientific or technical information, design, process, procedure, formula, data-processing technique, computer\nprogram, or improvement that is valuable and secret (in the sense that it is not generally known to competitors of Company\nor competitors of its business partners). To the extent consistent with the foregoing, Trade Secrets include, without\nlimitation, the specialized information and technology embodied in computer program material, including source and object\ncode, system and user documentation, and program and system designs that provide Company or its business partners with\nan advantage over their competitors in the development, sales, implementation and support of their application software and\nproducts.\nI acknowledge that Company has developed its Confidential Information through its own efforts and at great expense. I\nfurther acknowledge that Company has a legitimate interest in protecting its Confidential Information.\n2.\nI will not at any time, except as required by my duties at Company, duplicate, remove, transfer, use, disclose or communicate,\nor knowingly allow any other person to duplicate, remove, transfer, use, disclose or communicate, any Confidential\nInformation. I will safeguard all Confidential Information at all times so that it is not exposed to, or taken by, unauthorized\npersons and will exercise my best efforts to assure its safekeeping. I understand that the maintenance of the confidentiality of\nConfidential Information is material and essential to Company and its disclosure would have a severe adverse effect on the\nconduct of Company's business, and Company's competitive position and goodwill.\n3.\nUpon termination of my Employment, whether voluntary or involuntary, or upon Company's request at any time during the\nterm of my Employment, I will deliver to Company all written and other materials which contain or relate to Confidential\nInformation, whether formal or informal, whether prepared by me or by\nothers and whether required by my employment or for my personal use, including, without limitation, all documents, notes,\ncomputer programs and data prepared for or stored in or obtained from any automated information system, all of which\nmaterials shall be and remain the property of Company. In addition, I shall also provide any information, such as passwords\nor codes, necessary to allow Company to fully utilize its property.\n4.\nI will not make any unauthorized disclosure of trade secrets or confidential information to any third person, including any\nsuch information which is subject to a confidentiality agreement between Company and such third person, to which I gain\naccess as a result of my Employment.\n5.\nMy obligations under this Agreement will remain in effect both during the term of my Employment and thereafter, whatever\nthe reason for termination of my Employment, and shall survive any termination of this Agreement.\nAssignment of Right\n6.\n(a) All intellectual property in whatever form including, without limitation, inventions, discoveries, ideas,\ncomputer programs, programs based upon or developed from computer programs, improvements, codes,\nmethods, algorithms, trade secrets, know-how, system documentation, technical data, drawings, flow\ncharts, prototypes, design specifications, and any other documentation, notes and materials related to the\nforegoing (whether or not patentable or copyrightable) that are conceived or made by me, either alone or\nwith others, during the course of or derived from my Employment by Company and in any way related to\nmy Employment or to any business in which Company is engaged at any time during the term of my\nEmployment or (if it should reasonably be known by me) is considering in engaging ("Discoveries"), shall\nbe deemed to be "works made for hire" if permitted by applicable law and shall belong to Company.\n(b) I will promptly disclose all Discoveries to Company.\n(c) To the extent that any Discovery does not constitute a work made for hire pursuant to applicable law, I hereby\ntransfer, grant, convey, assign and relinquish exclusively to Company all of my rights to, title to and interest in all\nDiscoveries, in perpetuity (or for the longest period of time otherwise permitted by law), including:\n(i) all of my rights, title, interest, and benefit (including the right to make, use, or sell under patent law; to copy,\nadapt, distribute, display, and perform under copyright law; and to use and disclose under trade secret law) in\nand to all United States and foreign patents and patent applications, patent license rights, patentable inventions,\ntrade secrets, trademarks, service marks, trade names (including, in the case of trademarks, service marks and\ntrade names, all goodwill pertaining thereto), copyrights, technology licenses, know-how, confidential\ninformation, shop rights, and all other intellectual property rights owned or claimed or acquired in the future by\nme as embodied in the Discoveries; and\n(ii) all of my rights, title, interest, and benefit and all powers and privileges, in, to, and under all technical data,\ndrawings, prototypes, engineering files, system documentation, flow charts, and design specifications\ndeveloped by, owned, or acquired previously or in the future by me in connection with the development of the\nprogramming, inventions, processes, and apparatus entailed by the Discoveries.\n(d) I will execute and deliver, from time to time after the date hereof, upon Company's request, such further conveyance\ninstruments, and take such further actions, as may be necessary or desirable to evidence more fully the transfer of\nownership of all the Discoveries to Company, or the original ownership of all the Discoveries on the part of Company,\nto the fullest extent possible. I therefore agree to:\n2\n(i) execute, acknowledge, and deliver any affidavits or documents of assignment and conveyance regarding the\nDiscoveries.\n(ii) provide testimony in connection with any proceeding affecting the right, title, interest, or benefit of Company in\nor to the Discoveries.\n(iii) perform any other acts deemed necessary to carry out the intent of this Agreement including, without limitation,\nassisting in the application, perfection, maintenance and enforcement of the Discoveries and all rights relating\nthereto.\n(e) In furtherance of this Agreement, I hereby acknowledge that, from this date forward, or a previous date if rights were\nearlier transferred, Company has succeeded to all of my rights, title, and standing to:\n(i) receive all rights and benefits pertaining to the Discoveries.\n(ii) institute and prosecute all suits and proceedings and take all actions that Company, in its sole discretion may\ndeem necessary or proper to collect, assert, or enforce any claim, right, or title of any kind in and to any and all\nof the Discoveries.\n(iii) defend and compromise any and all such actions, suits, or proceedings relating to such transferred and assigned\nrights, title, interest, and benefits, and do all other such acts and things in relation thereto as Company, in its\nsole discretion, deems advisable.\n(f) Upon termination of my Employment, I will immediately surrender to Company all materials and work product in my\npossession or within my control (including all copies thereof) relating in any way to the Discoveries.\n(g) To effectuate the terms of this paragraph 6, I hereby name and irrevocably constitute and appoint Company, with the\nfull power of substitution therein, as my true and lawful attorney-in-fact to exercise the rights assigned hereby.\n(h) I represent and warrant that no consents of any other parties are necessary or appropriate under any agreements\nconcerning any of the Discoveries in order for the transfer and assignment of any of the Discoveries under this\nAgreement to be legally effective.\n(i) I represent and warrant that, to the best of my knowledge, upon consummation of this Agreement, Company will have\ngood and marketable title to the Discoveries, free and clear of any and all liens, mortgages, encumbrances, pledges,\nsecurity interests, or charges of any nature whatsoever.\n7.\nI have listed on the Schedule attached to this Agreement all inventions, if any, conceived or made by me prior to my\nEmployment by Company and which are to be excluded from this Agreement, as well as any restrictions on any work for\nCompany or any obligations under this Agreement arising from any prior employment or other agreement. I am not required\nto list on the Schedule any inventions conceived or made by me prior to my Employment by Company that (i) are unrelated\nto the business, operations, services or products of Company or (ii) are solely related to my personal hobbies and not to the\nbusiness, operations, service or products of Company.\nNon-Solicitation\n8.\nI agree that all Company relationships, whether or not contractual, including but not limited to, relationships with employees,\ncontractors, consultants, partners (collectively “Relationships”) are the sole property of Company. I agree that, during and\nafter my Employment with Company, unless Company provides written consent, I will not directly or indirectly provide\ninformation, including but not limited to,\n3\nemployee lists, resumes, independent contractor agreements, employment information and contact information, to other\nentities or individuals. I agree not to interfere with these Relationships by hiring or soliciting for hire individuals or entities,\ndirectly or indirectly, to work with or for any person or entity external to Company without the written consent of Company,\nduring, and for a period of 24 months after the termination of, my Employment with Company.\n9.\nI agree that all Company relationships with customers, partners, resellers, vendors and suppliers and all information, whether\nor not in writing, are and shall be the exclusive property of Company (collectively "Customer Information"). Customer\nInformation shall not be used outside the duties of my Employment with Company without the written consent of Company,\neither during or after the termination of my Employment with Company.\nNon-Competition\n10.\n(a) I further agree that, during the term of my Employment with Company, and for a period of twenty-four months\nfollowing the termination (whether voluntary or involuntary) of such Employment, I will not engage in any\ncapacity (including without limitation, as an employee, officer, director, consultant or shareholder (other\nthan as an owner of 1% or less of the outstanding shares of any publicly-traded company), in any\nCompeting Business in any geographical area in which Company (or any of Company’s affiliates) transacts\nsuch business. For purposes of this Agreement a “Competing Business” means any business engaged in\nproviding services similar to Company’s or in the marketing, sale, development and distribution of products\nthat are similar to Company's.\n(b) The covenants contained in this Section 10 shall be enforced to the fullest extent permissible under the laws of each\njurisdiction in which enforcement is sought. Accordingly, I agree that if any of the provisions of this Section 10 shall\nbe adjudicated to be invalid or unenforceable for any reason whatsoever, said provision shall be construed (only with\nrespect to the operation thereof in the particular jurisdiction in which such adjudication is made) by limiting and\nreducing it so as to be enforceable to the fullest extent permissible, without invalidating the remaining provisions of\nthis Agreement or affecting the validity or enforceability of said provision in any other jurisdiction.\n11. Breach by me of any provision of this Agreement will cause Company irreparable injury and damage for which money\ndamages may not be adequate. In addition to all other remedies that are available to it, Company shall be entitled to\npreliminary and permanent injunctive and equitable relief to prevent or remedy a breach of this Agreement by me.\n12. This Agreement:\n(a) shall bind my heirs, executors, administrators, legal representatives and assigns, and supersedes any prior agreements\nconcerning Confidential Information executed by me with or in favor of Company, if any.\n(b) constitutes the entire understanding between Company and me concerning Confidential Information and no waiver or\namendment of any provision of this Agreement shall be valid or effective unless in writing and signed by the party\nagainst whom enforcement thereof is sought.\n(c) shall be enforceable by Company or any of its successors or assigns.\n(d) shall be enforced and construed in accordance with the laws of the State of New Jersey, without giving effect to the\nchoice of laws principles of New Jersey that would result in the application of the laws of any other jurisdiction.\n4\n13. Should any part of this Agreement for any reason be declared by any court of competent jurisdiction to be invalid, that\ndecision shall not affect the validity of the remaining portion, which shall continue in full force and effect as if this\nAgreement had been executed with the invalid portion eliminated, provided, however, that this Agreement shall be\ninterpreted to carry out to the greatest extent possible the intent of the parties and to provide to Company substantially the\nsame benefits as Company would have received under this Agreement if such invalid part of this Agreement had been\nenforceable.\n14. I represent that I am not a party to, or bound by, any confidentiality agreements, non-compete agreements, restrictive\ncovenants, non-solicitation agreements, invention and assignment agreements, or any other agreements or obligations to any\nformer employer or other entity that will prevent me from performing, or impede me in performance of service for Company.\nI also represent that I have disclosed to Company all contracts or agreements that could prevent me from carrying out my\nresponsibilities for Company. I further acknowledge that I have not and will not take or remove from my prior employment\nthe originals or copies of any documents maintained as confidential or proprietary information by my prior employer, and that\nI have not and will not disclose any confidential or proprietary information of my prior employer. Therefore, I am “free and\nclear” to be employed by Company. I acknowledge that Company is relying on my representation in making its offer of\nemployment, in employing me, or in continuing my employment with Company. I further agree not to enter into any\nagreement either written or oral in conflict with my Employment with Company.\n15. I further agree that this Agreement does not constitute a contract of employment, and that I have the right to resign and\nCompany has the right to terminate my employment at any time, for any reason, with or without cause, subject to the\nprovisions of any written employment agreement between Company and me. I hereby acknowledge that I have read this\nAgreement, understand it and agree to be bound by its restrictions.\nJAMES W.\nPREUNINGER\nMay __, 2016\n(Date\nSigned)\nACCEPTED AND DATED AS OF MAY __, 2016\nAMBER ROAD, INC.\nBy: ___________________________\nName:\nTitle:\n5
83087d7615931fce886400dab46a067a.pdf	effective_date jurisdiction party	EX-10 6 ex10h.txt ICT, INC. AGREEMENT Cyberlux Corporation and International Consolidated Technologies MUTUAL NON DISCLOSURE AGREEMENT This\nMutual Non-Disclosure Agreement (the "Agreement") is made and entered into this 30th day of November, 2001 by and between Cyberlux Corporation\n("Cyberlux") with it principal place of business located at 50 Orange Road, PO Box 2010, Pinehurst, NC 28370 and International Consolidated Technologies\n("ICT"), with its principal place of business located at 400 West Delaware Casey, IL 62420. WHEREAS , Cyberlux and ICT intend to enter into discussions\nconcerning a business relationship whereby ICT will provide Cyberlux with certain services; NOW, THEREFORE , the parties hereto agree as follows: 1.\nPROPRIETARY INFORMATION. For purposes of this Agreement, "Proprietary Information" shall mean written, documentary or oral information of any kind\ndisclosed by Cyberlux or ICT to the other and designated as proprietary information, including, but not limited to, (a) information of a business, planning,\nmarketing or technical nature, (b) models, tools, hardware and software, and (c) any documents, reports, memoranda, notes, files or analyses prepared by or on\nbehalf of the receiving party that contain, summarize or are based upon any Proprietary Information, provided that "Proprietary Information" shall not include\ninformation which: (i) is publicly available prior to the date of this Agreement; (ii) becomes publicly available after the date of this Agreement trough no wrongful\nact of the receiving party; (iii) is furnished to others by the disclosing party without similar restrictions on their right to use or disclose; (iv) is known by the receiving\nparty without any proprietary restrictions at the time of receipt of such information from the disclosing party or becomes rightfully known to the receiving party\nwithout proprietary restrictions from a source other than the disclosing party; (v) is independently developed by the receiving party by persons who did not have\naccess, directly or indirectly, to the proprietary Information; or /1/ (vi) is obligated to be produced under order of a court of competent jurisdiction or a valid\nadministrative or congressional subpoena, provided that the receiving party promptly notifies the disclosing party of such event so that the disclosing party may\nseek an appropriate protective order or waive compliance by the receiving party with the terns of this Agreement. 2. CONFIDENTIALITY a. The receiving party\nshall protect all of the disclosing party's Proprietary Information as confidential information and, except with the prior written consent of the disclosing party or as\notherwise specifically provided herein, shall. not disclose, copy or distribute such Proprietary Information to any other individual, corporation or entity for a period\nof three (3) years from the date of disclosure. b. Except in connection with any joint project between Cyberlux and ICT, the receiving party shall not make any use\nof the disclosing party's Proprietary Information for is own benefit or for the benefit of any other individual, corporation or entity. c. The receiving party shall not\ndisclose all or any part of the disclosing party's Proprietary Information to any affiliates, agents, officers, directors, employees or representatives (collectively,\n"Representatives") of the receiving party except on a need-to-know basis. The receiving party agrees to inform any of its Representatives who receive the\ndisclosing parts Proprietary Information of the confidential and proprietary nature thereof and of such Representative's obligations with respect to the\nmaintenance of such Proprietary Information in conformance with the terms of this Agreement. d. Each party shall maintain the other party's Proprietary\nInformation with at least the same degree of care each party uses to maintain its own proprietary information. Each party represents that such degree of care\nprovides adequate protection for its own proprietary information. e. The receiving party shall immediately advise the disclosing party in writing of any\nmisappropriation or misuse by any person of the disclosing party's Proprietary Information of which the receiving party is aware. f. Any documents or materials\nthat are furnished by or on behalf of the disclosing party, and all other Proprietary Information in whatever form, including documents, reports, memoranda, notes,\nfiles or analyses prepared by or on behalf of the receiving party, including all copies of such materials, shall be promptly returned by the receiving party to the\ndisclosing party upon written request by the disclosing party for any reason. 2 3. NO LICENSES OR WARRANTIES . No license to the receiving party under any\ntrade secrets or patents or otherwise with respect to any of the Proprietary Information is granted or implied by conveying proprietary Information or other\ninformation to such party, and none of the information transmitted or exchanged shall constitute any representation, warranty, assurance , guaranty or inducement\nwith respect to the infringement of patents or other rights of others. 4. REMEDY FOR BREACH . Each receiving party acknowledges that the Proprietary\nInformation of the disclosing party is central to the disclosing party's business and was developed by or for the disclosing party at a significant cost. Each\nreceiving party further acknowledges that damages would not be an adequate remedy for any breach of this Agreement by the receiving party or its\nRepresentatives and that the disclosing party may obtain injunctive or other equitable relief to remedy or prevent any breach or threatened breach of this\nAgreement by the receiving party or any of its Representatives. Such remedy shall not be deemed to be the exclusive remedy for .any such breach of this\nAgreement, but shall be in addition to all other remedies available at law or in equity to the disclosing party. 5. MISCELLANEOUS . a. This Agreement contains the\nentire understanding between Cyberlux and ICT and supersedes all prior written and oral understandings relating to the subject hereof. This Agreement may not\nbe modified except by a writing signed by both parties. b. The construction, interpretation and performance of this Agreement, as well as the legal relations of the\nparties arising hereunder, will be governed by and construed in accordance with the laws of the State of North Carolina. e. It is understood and agreed that no\nfailure or delay by either Cyberlux or ICT in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial\nexercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. No waiver of any terms or\nconditions of this Agreement shall be deemed to be a waiver of any subsequent breach of any term or condition. All waivers must be in writing and signed by the\nparty sought to be bound d. If any part of this Agreement shall be held unenforceable, the remainder of this Agreement will nevertheless remain in full force and\neffect. 3 IN WITNESS WHEREOF, each of the parties of this Agreement has caused this Agreement to be signed in its name and on its behalf by its\nrepresentative thereunto duly authorized as of the day and year first above written. Cyberlux Corporation By: /s/ Donald F. Evans ---------------------- Donald F.\nEvans President International Consolidated Technologies By: /s/ Jim Goble 12/12/01 ---------------------------- Jim Goble Engineering and Tooling Manager	EX-10 6 ex10h.txt ICT, INC. AG RE E M E NT Cyberlux Corporation and International Consolidated Technologies MUTUAL NON DISC LOSU R E AG RE E M E NT This\nMutual Non-Disclosure Agreement (the "Agreement") is made and entered into this 30th day of November, 2001 by and between Cyberlux Corporation\n("Cyberlux") with itprincipal place ofbusiness located at 50 Orange Road, PO Box 2010, Pinehurst, NC 28370 and International Consolidated Technologies\n("ICT"), with is principal place of business located at400 West Delaware Casey, IL 62420. WHE REAS, Cyberlux and ICT intend to enter into discussions\nconcerning a business relationship whereby |CT will provide Cyberlux with certain sen/ices; NOW, THE RE FORE, the parties hereto agree as follows: 1.\nP ROP R|ETARY IN FORMATION. For purposes ofthis Agreement, "Proprietary Information" shall mean written, documentary or oral information of any kind\ndisclosed by Cyberlux or ICT to the other and designated as proprietary information, including, but not limited to, (a) information of a business, planning,\nmarketing ortechnical nature, (b) models, tools, hardware and software, and (c) any documens, repors, memoranda, notes, files or analyses prepared by or on\nbehalf of the receiving party thatcontain, summarize or are based upon any Proprietary Information, provided that "Proprietary Information" shall not include\ninformation which: (i) is publicly available prior to the date ofthis Agreement; (ii) becomes publicly available after the date ofthis Agreement trough no wrongful\nactofthe receiving party; (iii) is furnished to others by the disclosing party withoutsimilar restrictions on their rightto use or disclose; (iv) is known by the receiving\nparty without any proprietary restrictions atthe time of receiptofsuch information from the disclosing party or becomes rightfully known to the receiving party\nwithout proprietary restrictions from a source other than the disclosing party; (v) is independently developed by the receiving party by persons who did not have\naccess, directly or indirectjy, to the proprietary Information; or/1/ (vi) is obligated to be produced under order of a court of competentjurisdiction or a valid\nadministrative or congressional subpoena, provided thatthe receiving party promptjy notifies the disclosing party ofsuch eventso that the disclosing party may\nseek an appropriate protective order or waive compliance by the receiving party with the terns ofthis Agreement. 2. CONFIDE NTIALITY a. The receiving party\nshall protect all of the disclosing party's Proprietary Information as confidential information and, except with the prior written consentofthe disclosing party or as\nothenNise specifically provided herein, shall. notdisclose, copy or distribute such Proprietary Information to any other individual, corporation or entity for a period\nof three (3) years from the date ofdisclosure. b. Except in connection with anyjoint project between Cyberlux and ICT, the receiving party shall not make any use\nof the disclosing party's Proprietary Information for is own benefit or for the benefit of any other individual, corporation or entity. c. The receiving party shall not\ndisclose all or any part ofthe disclosing party's Proprietary Information to any affiliates, agens, officers, directors, employees or representatives (collectively,\n"Representatives") of the receiving party excepton a need-to-know basis. The receiving party agrees to inform any of is Representatives who receive the\ndisclosing pars Proprietary Information ofthe confidential and proprietary nature thereof and of such Representative's obligations with respectto the\nmaintenance ofsuch Proprietary Information in conformance with the terms of this Agreement. d. Each party shall maintain the other party's Proprietary\nInformation with at leastthe same degree ofcare each party uses to maintain is own proprietary information. Each party represens that such degree ofcare\nprovides adequate protection for is own proprietary information. e. The receiving party shall immediately advise the disclosing party in writing of any\nmisappropriation or misuse by any person of the disclosing party's Proprietary Information ofwhich the receiving party is aware. f. Any documens or materials\nthat are furnished by or on behalf of the disclosing party, and all other Proprietary Information in whatever form, including documens, repors, memoranda, notes,\nfiles or analyses prepared by or on behalf of the receiving party, including all copies of such materials, shall be promptly returned by the receiving party to the\ndisclosing party upon written request by the disclosing party for any reason. 2 3. NO LIC ENSES OR WARRANTIES. No license to the receiving party under any\ntrade secres or patens or othenNise with respectto any of the Proprietary Information is granted or implied by conveying proprietary Information or other\ninformation to such party, and none ofthe information transmitted or exchanged shall constitute any representation, warranty, assurance, guaranty or inducement\nwith respectto the infringement of patens or other righs of others. 4. RE ME DY FOR BREACH. Each receiving party acknowledges that the Proprietary\nInformation of the disclosing party is central to the disclosing party's business and was developed by or for the disclosing party at a significant cost. Each\nreceiving party further acknowledges thatdamages would not be an adequate remedy for any breach of this Agreement by the receiving party or is\nRepresentatives and that the disclosing party may obtain injunctive or other equitable relief to remedy or prevent any breach or threatened breach of this\nAgreement by the receiving party or any of is Representatives. Such remedy shall not be deemed to be the exclusive remedy for .any such breach ofthis\nAgreement, butshall be in addition to all other remedies available atlaw or in equity to the disclosing party. 5. MISCELLANEOUS. a. This Agreement contains the\nentire understanding between Cyberlux and ICT and supersedes all prior written and oral understandings relating to the subject hereof. This Agreement may not\nbe modified except by a writing signed by both parties. b. The construction, interpretation and performance of this Agreement, as well as the legal relations ofthe\nparties arising hereunder, will be governed by and construed in accordance with the laws ofthe State of North Carolina. e. It is understood and agreed that no\nfailure or delay by either Cyberlux or ICT in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial\nexercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. No waiver of any terms or\nconditions ofthis Agreement shall be deemed to be a waiver of any subsequent breach of any term or condition. All waivers must be in writing and signed by the\nparty sought to be bound d. If any part of this Agreementshall be held unenforceable, the remainder ofthis Agreement will nevertheless remain in full force and\neffect. 3 IN WITNESS WHEREOF, each ofthe parties of this Agreementhas caused this Agreement to be signed in is name and on is behalf by is\nrepresentative thereunto duly authorized as ofthe day and year first above written. Cyberlux Corporation By: /s/ Donald F. Evans ---------------------- Donald F.\nEvans President International Consolidated Technologies By: /s/J im Goble 12/12/01 ---------------------------- Jim Goble Engineering and Tooling Manager	EX-10 6 exl0h.txt INC. AGREEMENT Cyberlux Corporation and International Consolidated Technologies MUTUAL NON DISCLOSURE AGREEMENT This\nMutua Non-Disclosure Agreement (the "Agreement") is made and entered into this 30th day of November, 2001 by and between Cyberlux Corporation\n"Cyberlux") with it principal place of business located at 50 Orange Road, PO Box 2010, P inehurst, NC 28370 and International Consolidated Technologies\n("ICT"), with its principal place of business located at 400 West Delaware Casey IL 62420. WHEREAS, Cyberlux and ICT intend to enter into discussions\nconcerning a business relationship whereby ICT will provide Cyberlux with certain services; NOW, THEREFORE, the parties hereto agree as follows: 1.\nPROPRIETARY INFORMATION. or purposes of this Agreement, "Proprietary Information" shall mean written, documentary or oral information of any kind\ndisclosed by Cyberlux or ICT to the other and designated as proprietary information, including, but not limited to, (a) information of a business, planning,\nmarketing or technical nature, (b) models, tools, hardware and software, and (c) any documents, reports, memoranda, notes, files or analyses prepared by or on\nbehalf of the receiving party that contain, summarize or are based upon any roprietary Information, provided that roprietary Information" shall not include\ninformation which: (i) is publicly available prior to the date of this Agreement; (ii) becomes publicly available after the date of this Agreement trough no wrongful\nact of the receiving party; (iii) is furnished to others by the disclosing party without similar restrictions on their right to use or disclose; (iv) is known by the receiving\nparty without any proprietary restrictions at the time of receipt of such information from the disclosing party or becomes rightfully known to the receiving party\nwithout proprietary restrictions from a source other than the disclosing party; (v) is independently developed by the receiving party by persons who did not have\naccess, directly or indirectly, to the proprietary Information; or /1/ (vi) is obligated to be produced under order of a court of competent jurisdiction or a valid\nadministrative or congressional subpoena, provided that the receiving party promptly notifies the disclosing party of such event so that the disclosing party may\nseek an appropriate protective order or waive compliance by the receiving party with the terns of this Agreement. 2. CONFIDENTIALITY a. The receiving party\nshall protect all of the disclosing party's Proprietary Information as confidential information and, except with the prior written consent of the disclosing party or as\notherwise specifically provided herein, shall. not disclose, copy or distribute such P roprietary Information to any other individual, corporation or entity for a period\nof three (3) years from the date of disclosure. b. xcept in connection with any joint project between Cyberlux and ICT, the receiving party shall not make any use\nof the disclosing party's roprietary Information for is own benefit or for the benefit of any other individual, corporation or entity. c. The receiving party shall not\ndisclose all or any part of the disclosing party's Proprietary Information to any affiliates, agents, officers, directors, employees or representatives (collectively,\n"Representatives") of the receiving party except on a need-to-know basis. The receiving party agrees to inform any of its Representatives who receive the\ndisclosing parts Proprietary Information of the confidential and proprietary nature thereof and of such epresentative's obligations with respect to the\nmaintenance of such Proprietary Information in conformance with the terms of this Agreement. d. Each party shall maintain the other party's P roprietary\nInformation with at least the same degree of care each party uses to maintain its own proprietary information. Each party represents that such degree of care\nprovides adequate protection for its own proprietary information. e. The receiving party shall immediately advise the disclosing party in writing of any\nmisappropriation or misuse by any person of the disclosing party's roprietary Information of which the receiving party is aware. f. Any documents or materials\nthat are furnished by or on behalf of the disclosing party, and all other roprietary Information in whatever form, including documents, reports, memoranda, notes,\nfiles or analyses prepared by or on behalf of the receiving party, including all copies of such materials, shal be promptly returned by the receiving party to the\ndisclosing party upon written request by the disclosing party for any reason. 2 3. NO LICENSES OR WARRANTIES. No license to the receiving party under any\ntrade secrets or patents or otherwise with respect to any of the P roprietary Information is granted or implied by conveying proprietary Information or other\ninformation to such party, and none of the information transmitted or exchanged shall constitute any representation, warranty, assurance, guaranty or inducement\nwith respect to the infringement of patents or other rights of others. 4. REMEDY FOR BREACH. Each receiving party acknowledges that the roprietary\nInformation of the disclosing party is central to the disclosing party's business and was developed by or for the disclosing party at a significant cost. Each\nreceiving party further acknowledges that damages would not be an adequate remedy for any breach of this Agreement by the receiving party or its\nRepresentatives and that the disclosing party may obtain injunctive or other equitable relief to remedy or prevent any breach or threatened breach of this\nAgreement by the receiving party or any of its Representatives. Such remedy shall not be deemed to be the exclusive remedy for .any such breach of this\nAgreement, but shall be in addition to all other remedies available at law or in equity to the disclosing party. 5. MISCELLANEOUS. a. This Agreement contains the\nentire understanding between Cyberlux and ICT and supersedes all prior written and ora understandings relating to the subject hereof. This Agreement may not\nbe modified except by a writing signed by both parties. b. The construction, interpretation and performance of this Agreement, as well as the legal relations of the\nparties arising hereunder, will be governed by and construed in accordance with the laws of the State of North Carolina. e. it is understood and agreed that no\nfailure or delay by either Cyberlux or ICT in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial\nexercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. No waiver of any terms or\nconditions of this Agreement shall be deemed to be a waiver of any subsequent breach of any term or condition. All waivers must be in writing and signed by the\nparty sought to be bound d. If any part of this Agreement shal be held unenforceable, the remainder of this Agreement wil nevertheless remain in ful force and\neffect. 3 IN WITNESS WHEREOF, each of the parties of this Agreement has caused this Agreement to be signed in its name and on its behalf by its\nrepresentative thereunto duly authorized as of the day and year first above written. Cyberlux Corporation By: /s/ Donald F. Evans\nDonald F.\nEvans resident International Consolidated Technologies By: /s/ im Goble 12/12/01\nim Goble Engineering and Tooling Manager	EX-10 6 ex10h.txt ICT, INC. AGREEMENT Cyberlux Corporation and International Consolidated Technologies MUTUAL NON DISCLOSURE AGREEMENT This\nMutual Non-Disclosure Agreement (the "Agreement") is made and entered into this 30th day of November, 2001 by and between Cyberlux Corporation\n("Cyberlux") with it principal place of business located at 50 Orange Road, PO Box 2010, Pinehurst, NC 28370 and International Consolidated Technologies\n("ICT"), with its principal place of business located at 400 West Delaware Casey, IL 62420. WHEREAS , Cyberlux and ICT intend to enter into discussions\nconcerning a business relationship whereby ICT will provide Cyberlux with certain services; NOW, THEREFORE , the parties hereto agree as follows: 1.\nPROPRIETARY INFORMATION. For purposes of this Agreement, "Proprietary Information" shall mean written, documentary or oral information of any kind\ndisclosed by Cyberlux or ICT to the other and designated as proprietary information, including, but not limited to, (a) information of a business, planning,\nmarketing or technical nature, (b) models, tools, hardware and software, and (c) any documents, reports, memoranda, notes, files or analyses prepared by or on\nbehalf of the receiving party that contain, summarize or are based upon any Proprietary Information, provided that "Proprietary Information" shall not include\ninformation which: (i) is publicly available prior to the date of this Agreement; (ii) becomes publicly available after the date of this Agreement trough no wrongful\nact of the receiving party; (iii) is furnished to others by the disclosing party without similar restrictions on their right to use or disclose; (iv) is known by the receiving\nparty without any proprietary restrictions at the time of receipt of such information from the disclosing party or becomes rightfully known to the receiving party\nwithout proprietary restrictions from a source other than the disclosing party; (v) is independently developed by the receiving party by persons who did not have\naccess, directly or indirectly, to the proprietary Information; or /1/ (vi) is obligated to be produced under order of a court of competent jurisdiction or a valid\nadministrative or congressional subpoena, provided that the receiving party promptly notifies the disclosing party of such event so that the disclosing party may\nseek an appropriate protective order or waive compliance by the receiving party with the terns of this Agreement. 2. CONFIDENTIALITY a. The receiving party\nshall protect all of the disclosing party's Proprietary Information as confidential information and, except with the prior written consent of the disclosing party or as\notherwise specifically provided herein, shall. not disclose, copy or distribute such Proprietary Information to any other individual, corporation or entity for a period\nof three (3) years from the date of disclosure. b. Except in connection with any joint project between Cyberlux and ICT, the receiving party shall not make any use\nof the disclosing party's Proprietary Information for is own benefit or for the benefit of any other individual, corporation or entity. c. The receiving party shall not\ndisclose all or any part of the disclosing party's Proprietary Information to any affiliates, agents, officers, directors, employees or representatives (collectively,\n"Representatives") of the receiving party except on a need-to-know basis. The receiving party agrees to inform any of its Representatives who receive the\ndisclosing parts Proprietary Information of the confidential and proprietary nature thereof and of such Representative's obligations with respect to the\nmaintenance of such Proprietary Information in conformance with the terms of this Agreement. d. Each party shall maintain the other party's Proprietary\nInformation with at least the same degree of care each party uses to maintain its own proprietary information. Each party represents that such degree of care\nprovides adequate protection for its own proprietary information. e. The receiving party shall immediately advise the disclosing party in writing of any\nmisappropriation or misuse by any person of the disclosing party's Proprietary Information of which the receiving party is aware. f. Any documents or materials\nthat are furnished by or on behalf of the disclosing party, and all other Proprietary Information in whatever form, including documents, reports, memoranda, notes,\nfiles or analyses prepared by or on behalf of the receiving party, including all copies of such materials, shall be promptly returned by the receiving party to the\ndisclosing party upon written request by the disclosing party for any reason. 2 3. NO LICENSES OR WARRANTIES . No license to the receiving party under any\ntrade secrets or patents or otherwise with respect to any of the Proprietary Information is granted or implied by conveying proprietary Information or other\ninformation to such party, and none of the information transmitted or exchanged shall constitute any representation, warranty, assurance , guaranty or inducement\nwith respect to the infringement of patents or other rights of others. 4. REMEDY FOR BREACH . Each receiving party acknowledges that the Proprietary\nInformation of the disclosing party is central to the disclosing party's business and was developed by or for the disclosing party at a significant cost. Each\nreceiving party further acknowledges that damages would not be an adequate remedy for any breach of this Agreement by the receiving party or its\nRepresentatives and that the disclosing party may obtain injunctive or other equitable relief to remedy or prevent any breach or threatened breach of this\nAgreement by the receiving party or any of its Representatives. Such remedy shall not be deemed to be the exclusive remedy for .any such breach of this\nAgreement, but shall be in addition to all other remedies available at law or in equity to the disclosing party. 5. MISCELLANEOUS . a. This Agreement contains the\nentire understanding between Cyberlux and ICT and supersedes all prior written and oral understandings relating to the subject hereof. This Agreement may not\nbe modified except by a writing signed by both parties. b. The construction, interpretation and performance of this Agreement, as well as the legal relations of the\nparties arising hereunder, will be governed by and construed in accordance with the laws of the State of North Carolina. e. It is understood and agreed that no\nfailure or delay by either Cyberlux or ICT in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial\nexercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. No waiver of any terms or\nconditions of this Agreement shall be deemed to be a waiver of any subsequent breach of any term or condition. All waivers must be in writing and signed by the\nparty sought to be bound d. If any part of this Agreement shall be held unenforceable, the remainder of this Agreement will nevertheless remain in full force and\neffect. 3 IN WITNESS WHEREOF, each of the parties of this Agreement has caused this Agreement to be signed in its name and on its behalf by its\nrepresentative thereunto duly authorized as of the day and year first above written. Cyberlux Corporation By: /s/ Donald F. Evans ---------------------- Donald F.\nEvans President International Consolidated Technologies By: /s/ Jim Goble 12/12/01 ---------------------------- Jim Goble Engineering and Tooling Manager
84afa3f5024fd16b8b1a0d197f3c786a.pdf	effective_date jurisdiction party	EXHIBIT 10.1\nEXECUTION COPY\nEMPLOYEE NONCOMPETITION\nAND CONFIDENTIALITY AGREEMENT\nTHIS EMPLOYEE NON-COMPETITION AND CONFIDENTIALITY AGREEMENT (“Agreement”) is\neffective on August 5, 2019, by and between Apogee Enterprises, Inc. (“Apogee”) and Brent C. Jewell, who\nresides at 3165 Lake Shore Boulevard, Minnetonka, Minnesota 55491 (“Employee”).\nWHEREAS, Apogee has offered a promotion to Employee to become President of the Architectural Framing\nSystems segment (“Promotion”) effective August 5, 2019; and\nWHEREAS, if Employee accepts this Promotion, he will receive a $49,000 increase in base salary and an\naward of an additional 10,000 shares of restricted Apogee stock; and\nWHEREAS, prior to accepting this Promotion Employee was informed that as a condition of the Promotion,\nhe would be required to agree to restrictions on competition and the use of confidential information; and\nWHEREAS, Apogee and Employee acknowledge that Apogee’s business is highly competitive and will be\nsubstantially harmed in the competitive marketplace if the relationships they develop with vendors and\ncustomers is used to the detriment of Apogee, or Apogee Members, or to the benefit of others; and\nWHEREAS, Apogee’s business includes confidential information which is protected and kept secret by\nApogee and Apogee will be substantially harmed in the competitive marketplace if the confidential information\nis used to its detriment or to the benefit of others; and\nWHEREAS, Apogee desires reasonable protection of its confidential business and technical information and\nrelationships, which have been and will be acquired and is being developed by Apogee, at substantial expense;\nand\nWHEREAS, the Employee understands and agrees that he will fill a very important role at Apogee and is\nwilling to enter into restrictions on competition in exchange for the consideration provided hereunder.\nNOW THEREFORE, in consideration of the foregoing, of the mutual promises herein contained, and of other\ngood and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties\nhereto, intending legally to be bound, hereby agree as follows:\n1. Adoption of Recitals. The parties adopt and incorporate the above Recitals into this Agreement.\n2.\nTerm of Agreement. This Agreement shall commence on the effective date above written. It shall\nsurvive termination of the Employee’s employment with Apogee or an Apogee Member for any reason.\n1\nEXECUTION COPY\n3.\nConsideration.\nEmployee acknowledges that Employee has had an opportunity to review this\nAgreement, and Employee understands that the Promotion is conditioned upon Employee’s acceptance of the\nterms herein. Employee further agrees that Employee has received independent, adequate and sufficient\nconsideration to which Employee is not otherwise entitled, for Employee’s agreement to, and acceptance of,\nthe terms herein.\n4. Apogee Member. As used herein, the terms “Apogee Member” and “Apogee Members” shall include\nany corporation which is at any time a parent or direct or indirect subsidiary of Apogee, or any corporation or\nentity which is an affiliate of Apogee by virtue of Apogee owning more than five percent (5%) of the entity or\nthe entity owning more than five percent (5%) of Apogee. “Apogee Member” shall include, but not be limited\nto, the following entities that are owned in part by Apogee or which own part of Apogee, and which share\nConfidential Information among themselves: Apogee Enterprises, Inc., Alumicor Limited, Apogee Wausau\nGroup, Inc. (including Linetec and Wausau Window and Wall Systems), EFCO Corporation, Glassec Vidros\nde Seguranca Ltda., Harmon, Inc., Sotawall Limited, Tru Vue, Inc., Tubelite Inc., Velocity, and Apogee\nCompany, Viracon, Inc. and Viracon Georgia, Inc. All Apogee Members are intended third party beneficiaries\nof this Agreement.\n5.\nEmployee Covenants.\nIn recognition of the fact that, as a result of Employee’s employment by\nApogee or an Apogee Member, Employee has had or will have access to and gain knowledge of highly\nconfidential or proprietary information or trade secrets pertaining to Apogee and Apogee Members, as well as\nthe customers, suppliers, joint ventures, licensors, licensees, distributors or other persons and entities with\nwhom Apogee and any Apogee Member does business (“Confidential Information”), which Apogee and\nApogee Members have expended time, resources and money to obtain or develop and which have significant\nvalue to Apogee and Apogee Members, Employee agrees for the benefit of Apogee and Apogee Members, and\nas a material condition to Employee’s Promotion, as follows.\n(a) Non-Disclosure of Confidential Information. Employee acknowledges that Employee will receive\naccess or have received access to Confidential Information about Apogee and Apogee Members, that\nthis information was obtained or developed by Apogee and Apogee Members at great expense and is\nzealously guarded by Apogee and Apogee Members from unauthorized disclosure and that\nEmployee’s possession of this special knowledge is due solely to Employee’s employment with\nApogee or one or more Apogee Members. In recognition of the foregoing, Employee will not at any\ntime during employment or following termination of employment for any reason, disclose, use or\notherwise make available to any third party any Confidential Information relating to Apogee or any\nApogee Member’s business, products, services, customers, vendors or suppliers; trade secrets, data,\nspecifications, developments, inventions and research activity; marketing and sales strategies,\ninformation and techniques; long and short term plans; existing and prospective client, vendor,\nsupplier and employee lists, contacts and information; financial, personnel and information system\ninformation and applications; and any other information concerning the business of Apogee or any\nApogee Member which is not disclosed to the general public or known in the industry, except for\ndisclosure necessary in the course of Employee’s duties or with the express written consent\n2\nEXECUTION COPY\nof Apogee or an Apogee Member. All Confidential Information, including all copies, notes\nregarding, and replications of such Confidential Information will remain the sole property of Apogee\nor any Apogee Member, as applicable, and must be returned to Apogee or Apogee Members\nimmediately upon termination of Employee’s employment.\n(b) Return of Property. Upon termination of employment with Apogee or any Apogee Member, or at\nany other time at the request of Apogee or an Apogee Member, Employee shall deliver to a\ndesignated Apogee or an Apogee Member representative all records, documents, hardware, software\nand all other property of Apogee and Apogee Members and all copies of such property in\nEmployee’s possession. Employee acknowledges and agrees that all such materials are the sole\nproperty in Employee’s possession. Employee acknowledges and agrees that all such materials are\nthe sole property of Apogee and Apogee Members and that Employee will certify in writing to\nApogee or any Apogee Member at the time of delivery, whether upon termination or otherwise, that\nEmployee has complied with this obligation.\n(c) Non-Solicitation of Existing or Prospective Customers, Vendors and Suppliers.\nEmployee\nspecifically acknowledges that the Confidential Information described in Section 5 includes\nconfidential data pertaining to existing and prospective customers, vendors and suppliers of Apogee\nand Apogee Members; that such data is a valuable and unique asset of the business of Apogee and\nApogee Members; and that the success or failure of their businesses depends upon their ability to\nestablish and maintain close and continuing personal contacts and working relationships with such\nexisting and prospective customers, vendors, and suppliers and to develop proposals which are\nspecific to such existing and prospective customers, vendors, and suppliers. Therefore, during\nEmployee’s employment with Apogee or any Apogee Member and for the eighteen (18) months\nfollowing Employee’s employment termination date, Employee agrees that Employee will not,\nexcept on behalf of Apogee and Apogee Members, or with Apogee’s or an Apogee Member’s\nexpress written consent, solicit, approach, contact or attempt to solicit, approach or contact, either\ndirectly or indirectly, on Employee’s own behalf or on behalf of any other person or entity, any\nexisting or prospective customers, vendors, or suppliers of Apogee and Apogee Members with\nwhom Employee had contact or about whom Employee gained Confidential Information during\nEmployee’s employment with Apogee or any Apogee Members for the purpose of obtaining\nbusiness or engaging in any commercial relationship that would be competitive with the “Business\nof the Company” (as defined below in Section 5(e)(i)) or cause such customer, supplier, or vendor to\nmaterially change or terminate its business or commercial relationship with Apogee or any Apogee\nMember.\n(d) Non-Solicitation of Employees.\nEmployee specifically acknowledges that the Confidential\nInformation described in Section 5 also includes confidential data pertaining to employees and\nagents of Apogee or Apogee Members, and Employee further agrees that during Employee’s\nemployment with Apogee and\n3\nEXECUTION COPY\nApogee Members and for the eighteen (18) months following Employee’s employment termination\ndate, Employee will not, directly or indirectly, on Employee’s own behalf or on behalf of any other\nperson or entity, solicit, contact, approach, encourage, induce or attempt to solicit, contact, approach,\nencourage or induce any of the employees or agents of Apogee or any Apogee Member to terminate\ntheir employment or agency with Apogee or any Apogee Member.\n(e) Non-Competition.\nEmployee covenants and agrees that during Employee’s employment with\nApogee or any Apogee Member and for the eighteen (18) months following Employee’s\nemployment termination date, Employee will not, in any geographic market in which Employee\nworked on behalf of Apogee or any Apogee Member, or for which Employee had any sales,\nmarketing, operational, logistical or other management or oversight responsibility, engage in or\ncarry on, directly or indirectly, as an owner, employee, agent, associate, consultant, partner or in any\nother capacity, a business competitive with the Business of the Company.\ni. The “Business of the Company” shall mean any business in which Apogee or any Apogee\nMember was involved, or was investing in for the purpose of being involved, at any time within\nthe twenty-four (24) months preceding Employee’s employment termination date.\nii. To “engage in or carry on” shall mean to have ownership in any enterprise engaged in the\nBusiness of the Company (excluding ownership of up to 1% of the outstanding shares of a\npublicly traded company) or to consult, work in, direct or have responsibility for any area of the\nBusiness of the Company.\n(f) Remedies for Breach of These Covenants. Any breach of the covenants in this Section 5 likely will\ncause irreparable harm to Apogee and Apogee Members for which money damages could not\nreasonably or adequately compensate Apogee or Apogee Members. Accordingly, Apogee and any\nApogee Member shall be entitled to all forms of injunctive relief (whether temporary, emergency,\npreliminary, prospective or permanent) to enforce such covenants, in addition to damages and other\navailable remedies, and Employee consents to the issuance of such an injunction without the\nnecessity of Apogee or any Apogee Member posting a bond. In the event that injunctive relief or\ndamages are awarded to Apogee or any Apogee Member for any breach by Executive of this\nSection 5, Employee further agrees that Apogee or any Apogee Member shall be entitled to recover\nits costs and attorneys’ fees necessary to obtain such recovery. In addition, Employee agrees that\nupon Employee’s breach of any covenant in this Section 5, all unexercised options issued under any\nstock option plans of Apogee will immediately terminate and Apogee and/or an Apogee Member\nshall have the right to exercise any and all of the rights described above.\n4\nEXECUTION COPY\n6.\nAccounting of Profits. Employee covenants and agrees that if Employee shall violate any covenants\nor agreements in this Agreement, Apogee and/or the affected Apogee Member(s) shall be entitled to an\naccounting and repayment of all profits, compensation, commissions, remunerations or benefits which\nEmployee directly or indirectly has realized and/or may realize as a result of, growing out of, or in connection\nwith, any such violation; such remedy shall be in addition to, and not in limitation of, any injunctive relief or\nother rights or remedies to which Apogee or Apogee Members are or may be entitled at law or in equity or\nunder this Agreement.\n7. Reasonableness of Restrictions.\n(a) Employee has carefully read and considered the provisions of this Agreement and, having done\nso, agrees that the restrictions set forth therein (including, but not limited to, the time period of\nrestriction and the geographical areas of restriction) are fair and reasonable and are reasonably\nrequired for the protection of the interests of Apogee or Apogee Members, their officers,\ndirectors, shareholders and other employees.\n(b) The parties agree that Apogee and Apogee Members share confidential information with each\nother and may have relationships with entities that are suppliers, vendors or customers of\nApogee or an Apogee Member while being a competitor of the same, Apogee or another\nApogee Member.\n(c) In the event that, notwithstanding the foregoing, any part of the covenants set forth herein shall\nbe held to be invalid or unenforceable, the remaining parts thereof shall nevertheless continue to\nbe valid and enforceable as though the invalid or unenforceable parts had not been included\ntherein. In the event that any provision of Section 5 relating to time period and/or areas of\nrestriction shall be declared by a court of competent jurisdiction to exceed the maximum time\nperiod or areas such court deems reasonable and enforceable, the agreed upon time period\nand/or areas of restriction shall be deemed to become and thereafter be the maximum time\nperiod and/or areas which such court deems reasonable and enforceable.\n8.\nWaiver. In the event Apogee or any Apogee Member maintains an action, either at law, equity, or\nboth, to enforce this Agreement against Employee, Employee waives any right to maintain any of the following\ndefenses:\n(a) That this Agreement is not necessary for the protection of the goodwill of Apogee or any Apogee\nMember;\n(b)That this Agreement is overbroad in geographic scope or duration;\n(c) That this Agreement would impose an undue hardship upon the Employee;\n(d)That Apogee or any Apogee Member has an adequate remedy at law;\n5\nEXECUTION COPY\n(e) That this Agreement is not supported by adequate consideration; or\n(f) That Apogee or any Apogee Member failed to take adequate safeguards to protect the confidentiality\nof the information.\n9.\nBurden and Benefit/Assigns. The Employee may not transfer or assign this Agreement or any of the\nEmployee’s rights or obligations hereunder. Apogee or any Apogee Member may transfer or assign this\nAgreement or any of its rights or obligations hereunder with or without notice to the Employee, and this\nAgreement shall automatically inure to the benefit of Apogee or any Apogee Members and their respective\nheirs, personal and legal representatives, successors and assigns.\n10. Survival. Employee’s obligations under this Agreement shall survive termination of the Agreement\nand the employment relationship, regardless of the circumstances of termination of the employment\nrelationship.\n11.\nEmployment At Will.\nThis Agreement does not alter the at will nature of the employment\nrelationship between Employee and Apogee or any Apogee Member and Employee. Both parties understand\nthat either party may end the employment relationship at any time, for any reason, without notice. Employee\nhas no right to continued employment with Apogee or any Apogee Member.\n12. Entire Agreement. This Agreement contains the entire agreement and understanding by and between\nEmployee and Apogee and/or any Apogee Member with respect to the subject matter hereof, except that any\nchange in control agreement to which Employee is signatory shall continue in full force and effect. No\nrepresentations, promises, agreements or understandings, written or oral, not herein contained shall be of any\nforce or effect. Notwithstanding the above, if Employee is a party to a change in control agreement, it is\nunderstood and agreed that Employee is subject to the covenants described in such change in control\nagreement, despite the shorter duration of such covenants in this Agreement. The covenants described in any\napplicable change in control agreement shall continue for the entire period stated therein, regardless of the\nexpiration of the covenant periods described in this Agreement.\n13. Modification; Waiver. No change or modification hereof shall be valid or binding unless the same is\nin writing and signed by the party intended to be bound. No waiver of any provision of this Agreement shall be\nvalid unless the same is in writing and signed by the party against whom such waiver is sought to be enforced;\nmoreover, no valid waiver of any provision of this Agreement at any time shall be deemed a waiver of any\nother provision of this Agreement at such time or will be deemed a valid waiver of such provision at any other\ntime. Any delay or failure to enforce any provision of this Agreement by Apogee or any Apogee Member shall\nalso not constitute a waiver of the right to enforce any part of this Agreement.\n14. Voluntary Action. Employee enters into this Agreement knowingly and voluntarily and after having\nhad an opportunity to consult with legal counsel if desired.\n15. Construction. It is the intention of the parties hereto that Apogee or any Apogee Members be given\nthe broadest possible protection respecting its confidential information and\n6\nEXECUTION COPY\nrespecting competition by Employee following Employee’s separation from Apogee or any Apogee Member.\nTherefore, if any portion of this Agreement is deemed overbroad by a court of competent jurisdiction, it is the\nparties’ intention that it be redrawn to fit the broadest possible geographic and temporal limitations allowed by\nlaw. The parties intend and agree that this Agreement not be construed or interpreted in favor of either party\nbased upon who drafted its provisions.\n16. Governing Law. This Agreement will be construed and governed in accordance with the laws of the\nState of Minnesota, its conflicts of laws principles notwithstanding.\n17.\nJurisdiction. For the purpose of resolving conflicts related to or arising out of this Agreement, the\nparties hereby expressly consent to the jurisdiction of the courts of Minnesota and such other courts as\npermitted under the Federal Defend Trade Secrets Act. Employee consents to personal jurisdiction in the State\nof Minnesota.\n[The remainder of this page has been left blank intentionally. Signature page attached.]\n7\nEXECUTION COPY\nIN WITNESS WHEREOF, Apogee and Employee have duly executed this Agreement under seal as of the day\nand year first above written.\nDate:\n8/5/19\nAPOGEE ENTERPRISES, INC.\nBy:/s/ Curtis J. Dobler\nIts:Executive Vice President Human Resources\nEMPLOYEE\nDate:\n8/5/19\n/s/ Brent C. Jewell\nBrent C. Jewell\n8	EXHIBIT 10.1\nEXECUTION COPY\nEMPLOYEE NONCOMPETITION\nAND CONFIDENTIALITY AGREEMENT\nTHIS EMPLOYEE NON-COMPETITION AND CONFIDENTIALITY AGREEMENT (”Agreement”) is\neffective on August 5, 2019, by and between Apogee Enterprises, Inc. (”Apogee”) and Brent C. Jewell, who\nresides at 3165 Lake Shore Boulevard, Minnetonka, Minnesota 55491 (”Employee”).\nWHEREAS, Apogee has offered a promotion to Employee to become President of the Architectural Framing\nSystems segment (”Promotion”) effective August 5, 2019; and\nWHEREAS, if Employee accepts this Promotion, he will receive a $49,000 increase in base salary and an\naward of an additional 10,000 shares of restricted Apogee stock; and\nWHEREAS, prior to accepting this Promotion Employee was informed that as a condition of the Promotion,\nhe would be required to agree to restrictions on competition and the use of confidential information; and\nWHEREAS, Apogee and Employee acknowledge that Apogee’s business is highly competitive and will be\nsubstantially harmed in the competitive marketplace if the relationships they develop with vendors and\ncustomers is used to the detriment of Apogee, orApogee Members, or to the benefit of others; and\nWHEREAS, Apogee’s business includes confidential information which is protected and kept secret by\nApogee and Apogee will be substantially harmed in the competitive marketplace if the confidential information\nis used to its detriment or to the benefit of others; and\nWHEREAS, Apogee desires reasonable protection of its confidential business and technical information and\nrelationships, which have been and will be acquired and is being developed by Apogee, at substantial expense;\nand\nWHEREAS, the Employee understands and agrees that he will fill a very important role at Apogee and is\nwilling to enter into restrictions on competition in exchange for the consideration provided hereunder.\nNOW THEREFORE, in consideration of the foregoing, of the mutual promises herein contained, and of other\ngood and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties\nhereto, intending legally to be bound, hereby agree as follows:\n1. Adoption of Recitals. The parties adopt and incorporate the above Recitals into this Agreement.\n2. Term of Agreement. This Agreement shall commence on the effective date above written. It shall\nsurvive termination of the Employee’ s employment with Apogee or an Apogee Member for any reason.\n \nEXECUTION COPY\n3. Consideration. Employee acknowledges that Employee has had an opportunity to review\nAgreement, and Employee understands that the Promotion is conditioned upon Employee’s acceptance of the\nterms herein. Employee further agrees that Employee has received independent, adequate and sufficient\nconsideration to which Employee is not otherwise entitled, for Employee’s agreement to, and acceptance of,\nthe terms herein.\n4. Apogee Member. As used herein, the terms ”A pogee Member” and ”Apogee Members” shall include\nany corporation which is at any time a parent or direct or indirect subsidiary of Apogee, or any corporation or\nentity which is an affiliate of Apogee by virtue of Apogee owning more than five percent (5%) of the entity or\nthe entity owning more than five percent (5%) of Apogee. ”Apogee Member” shall include, but not be limited\nto, the following entities that are owned in part by Apogee or which own part of Apogee, and which share\nConfidential Information among themselves: Apogee Enterprises, Inc., Alumicor Limited, Apogee Wausau\nGroup, Inc. (including Linetec and Wausau Window and Wall Systems), EECO Corporation, Glassec Vidros\nde Seguranca Ltda., Harmon, Inc., Sotawall Limited, Tru Vue, Inc., Tubelite Inc., Velocity, and Apogee\nCompany, Viracon, Inc. and Viracon Georgia, Inc. All Apogee Members are intended third party beneficiaries\nof this Agreement.\n5. Employee Covenants. In recognition of the fact that, as a result of Employee’s employment by\nApogee or an Apogee Member, Employee has had or will have access to and gain knowledge of highly\nconfidential or proprietary information or trade secrets pertaining to Apogee and Apogee Members, as well as\nthe customers, suppliers, joint ventures, licensors, licensees, distributors or other persons and entities with\nwhom Apogee and any Apogee Member does business (”Confidential Information”), which Apogee and\nApogee Members have expended time, resources and money to obtain or develop and which have significant\nvalue to Apogee and Apogee Members, Employee agrees for the benefit of Apogee and Apogee Members, and\nas a material condition to Employee’s Promotion, as follows.\n(a) Non-Disclosure of Confidential Information. Employee acknowledges that Employee will receive\naccess or have received access to Confidential Information about Apogee and Apogee Members, that\nthis information was obtained or developed by Apogee and Apogee Members at great expense and is\nzealously guarded by Apogee and Apogee Members from unauthorized disclosure and that\nEmployee’s possession of this special knowledge is due solely to Employee’s employment with\nApogee or one or more Apogee Members. In recognition of the foregoing, Employee will not at any\ntime during employment or following termination of employment for any reason, disclose, use or\notherwise make available to any third party any Confidential Information relating to Apogee or any\nApogee Member“ s business, products, services, customers, vendors or suppliers; trade secrets, data,\nspecifications, developments, inventions and research activity; marketing and sales strategies,\ninformation and techniques; long and short term plans; existing and prospective client, vendor,\nsupplier and employee lists, contacts and information; financial, personnel and information system\ninformation and applications; and any other information concerning the business of Apogee or any\nApogee Member which is not disclosed to the general public or known in the industry, except for\ndisclosure necessary in the course of Employee’s duties or with the express written consent\nV\nA\nO\nV\nV\n \nEXECUTION COPY\nof Apogee or an Apogee Member. All Confidential Information, including all copies, notes\nregarding, and replications of such Confidential Information will remain the sole property of Apogee\nor any Apogee Member, as applicable, and must be returned to Apogee or Apogee Members\nimmediately upon termination of Employee’ s employment.\nReturn of Propegy. Upon termination of employment with Apogee or any Apogee Member, or at\nany other time at the request of Apogee or an Apogee Member, Employee shall deliver to a\ndesignated Apogee or an Apogee Member representative all records, documents, hardware, software\nand all other property of Apogee and Apogee Members and all copies of such property in\nEmployee’s possession. Employee acknowledges and agrees that all such materials are the sole\nproperty in Employee’s possession. Employee acknowledges and agrees that all such materials are\nthe sole property of Apogee and Apogee Members and that Employee will certify in writing to\nApogee or any Apogee Member at the time of delivery, whether upon termination or otherwise, that\nEmployee has complied with this obligation.\nNon-Solicitation of Existing or Prospective Customers, Vendors and Suppliers. Employee specifically acknowledges that the Confidential Information described in Section 5 includes\nconfidential data pertaining to existing and prospective customers, vendors and suppliers of Apogee\nand Apogee Members; that such data is a valuable and unique asset of the business of Apogee and\nApogee Members; and that the success or failure of their businesses depends upon their ability to\nestablish and maintain close and continuing personal contacts and working relationships with such\nexisting and prospective customers, vendors, and suppliers and to develop proposals which are\nspecific to such existing and prospective customers, vendors, and suppliers. Therefore, during\nEmployee’s employment with Apogee or any Apogee Member and for the eighteen (18) months\nfollowing Employee’s employment termination date, Employee agrees that Employee will not,\nexcept on behalf of Apogee and Apogee Members, or with Apogee’s or an Apogee Members\nexpress written consent, solicit, approach, contact or attempt to solicit, approach or contact, either\ndirectly or indirectly, on Employee’s own behalf or on behalf of any other person or entity, any\nexisting or prospective customers, vendors, or suppliers of Apogee and Apogee Members with\nwhom Employee had contact or about whom Employee gained Confidential Information during\nEmployee’s employment with Apogee or any Apogee Members for the purpose of obtaining\nbusiness or engaging in any commercial relationship that would be competitive with the ”Business\nof the Company” (as defined below in Section 5(e)(i)) or cause such customer, supplier, or vendor to\nmaterially change or terminate its business or commercial relationship with Apogee or any Apogee\nMember.\nNon-Solicitation of Employees. Employee specifically acknowledges that the Confidential Information described in Section 5 also includes confidential data pertaining to employees and\nagents of Apogee or Apogee Members, and Employee further agrees that during Employee’s\nemployment with Apogee and\nV\n \nEXECUTION COPY\nApogee Members and for the eighteen (18) months following Employee’s employment termination\ndate, Employee will not, directly or indirectly, on Employee’s own behalf or on behalf of any other\nperson or entity, solicit, contact, approach, encourage, induce or attempt to solicit, contact, approach,\nencourage or induce any of the employees or agents of Apogee or any Apogee Member to terminate\ntheir employment or agency with Apogee or any Apogee Member.\nNon-Competition. Employee covenants and agrees that during Employee’s employment with\nApogee or any Apogee Member and for the eighteen (18) months following Employee’s\nemployment termination date, Employee will not, in any geographic market in which Employee\nworked on behalf of Apogee or any Apogee Member, or for which Employee had any sales,\nmarketing, operational, logistical or other management or oversight responsibility, engage in or\ncarry on, directly or indirectly, as an owner, employee, agent, associate, consultant, partner or in any\nother capacity, a business competitive with the Business of the Company.\ni. The ”Business of the Company” shall mean any business in which Apogee or any Apogee\nMember was involved, or was investing in for the purpose of being involved, at any time within\nthe twenty-four (24) months preceding Employee’ 3 employment termination date.\nii. To ”engage in or cam on” shall mean to have ownership in any enterprise engaged in the\nBusiness of the Company (excluding ownership of up to 1% of the outstanding shares of a\npublicly traded company) or to consult, work in, direct or have responsibility for any area of the\nBusiness of the Company.\nRemedies for Breach of These Covenants. Any breach of the covenants in this Section 5 likely will\ncause irreparable harm to Apogee and Apogee Members for which money damages could not\nreasonably or adequately compensate Apogee or Apogee Members. Accordingly, Apogee and any\nApogee Member shall be entitled to all forms of injunctive relief (whether temporary, emergency,\npreliminary, prospective or permanent) to enforce such covenants, in addition to damages and other\navailable remedies, and Employee consents to the issuance of such an injunction without the\nnecessity of Apogee or any Apogee Member posting a bond. In the event that injunctive relief or\ndamages are awarded to Apogee or any Apogee Member for any breach by Executive of this\nSection 5, Employee further agrees that Apogee or any Apogee Member shall be entitled to recover\nits costs and attorneys’ fees necessary to obtain such recovery. In addition, Employee agrees that\nupon Employee’s breach of any covenant in this Section 5, all unexercised options issued under any\nstock option plans of Apogee will immediately terminate and Apogee and/or an Apogee Member\nshall have the right to exercise any and all of the rights described above.\n4\n \n6. Accounting of Profits. EXECUTION COPY\nor agreements in this Agreement, Apogee and/or the affected Apogee Member(s) shall be entitled to an accounting and repayment of all profits, compensation, commissions, remunerations or benefits which Employee directly or indirectly has realized and/or may realize as a result of, growing out of, or in connection with, any such violation; such remedy shall be in addition to, and not in limitation of, any injunctive relief or other rights or remedies to which Apogee or Apogee Members are or may be entitled at law or in equity or under this A greement. 7. Reasonableness of Restrictions. (a)\nEmployee has carefully read and considered the provisions of this Agreement and, having done\nso, agrees that the restrictions set forth therein (including, but not limited to, the time period of\nrestriction and the geographical areas of restriction) are fair and reasonable and are reasonably\nrequired for the protection of the interests of Apogee or Apogee Members, their officers,\ndirectors, shareholders and other employees.\nThe parties agree that Apogee and Apogee Members share confidential information with each\nother and may have relationships with entities that are suppliers, vendors or customers of\nApogee or an Apogee Member while being a competitor of the same, Apogee or another\nApogee Member.\nIn the event that, notwithstanding the foregoing, any part of the covenants set forth herein shall\nbe held to be invalid or unenforceable, the remaining parts thereof shall nevertheless continue to\nbe valid and enforceable as though the invalid or unenforceable parts had not been included\ntherein. In the event that any provision of Section 5 relating to time period and/or areas of\nrestriction shall be declared by a court of competent jurisdiction to exceed the maximum time\nperiod or areas such court deems reasonable and enforceable, the agreed upon time period\nand/or areas of restriction shall be deemed to become and thereafter be the maximum time\nperiod and/or areas which such court deems reasonable and enforceable.\n8. Waiver. In the event Apogee or any Apogee Member maintains an action, either at law, equity, both, to enforce this Agreement against Employee, Employee waives any right to maintain any of the following defenses:\n(a) That this Agreement is not necessary for the protection of the goodwill of Apogee or any Apogee Member; (b)That this Agreement is overbroad in geographic scope or duration; (c) That this Agreement would impose an undue hardship upon the Employee; Employee covenants and agrees that if Employee shall violate any covenants\f(d)That Apogee or any Apogee Member has an adequate remedy at law;\n5\n \nEXECUTION COPY\n(e) That this Agreement is not supported by adequate consideration; or\n(f) That Apogee or any Apogee Member failed to take adequate safeguards to protect the confidentiality\nof the information.\n9. Burden and Benefit/A ssigr_rs. The Employee may not transfer or assign this Agreement or any of the\nEmployee’s rights or obligations hereunder. Apogee or any Apogee Member may transfer or assign this\nAgreement or any of its rights or obligations hereunder with or without notice to the Employee, and this\nAgreement shall automatically inure to the benefit of Apogee or any Apogee Members and their respective\nheirs, personal and legal representatives, successors and assigns.\n10. Survival. Employee’s obligations under this Agreement shall survive termination of the Agreement\nand the employment relationship, regardless of the circumstances of termination of the employment\nrelationship.\n11. Employment At Will. This Agreement does not alter the at will nature of the employm\nrelationship between Employee and Apogee or any Apogee Member and Employee. Both parties understand\nthat either party may end the employment relationship at any time, for any reason, without notice. Employee\nhas no right to continued employment with Apogee or any Apogee Member.\n12. Entire Agreement. This Agreement contains the entire agreement and understanding by and between\nEmployee and Apogee and/or any Apogee Member with respect to the subject matter hereof, except that any\nchange in control agreement to which Employee is signatory shall continue in full force and effect. No\nrepresentations, promises, agreements or understandings, written or oral, not herein contained shall be of any\nforce or effect. Notwithstanding the above, if Employee is a party to a change in control agreement, it is\nunderstood and agreed that Employee is subject to the covenants described in such change in control\nagreement, despite the shorter duration of such covenants in this Agreement. The covenants described in any\napplicable change in control agreement shall continue for the entire period stated therein, regardless of the\nexpiration of the covenant periods described in this Agreement.\n13. Modification' Waiver. No change or modification hereof shall be valid or binding unless the same is\nin writing and signed by the party intended to be bound. No waiver of any provision of this Agreement shall be\nvalid unless the same is in writing and signed by the party against whom such waiver is sought to be enforced;\nmoreover, no valid waiver of any provision of this Agreement at any time shall be deemed a waiver of any\nother provision of this Agreement at such time or will be deemed a valid waiver of such provision at any other\ntime. Any delay or failure to enforce any provision of this Agreement by Apogee or any Apogee Member shall\nalso not constitute a waiver of the right to enforce any part of this Agreement.\n \n14. Voluntary Action. Employee enters into this Agreement knowingly and voluntarily and after having\nhad an opportunity to consult with legal counsel if desired.\n15. Construction. It is the intention of the parties hereto that Apogee or any Apogee Members be given\nthe broadest possible protection respecting its confidential information and\n \nEXECUTION COPY\nrespecting competition by Employee following Employee’s separation from Apogee or any Apogee Member.\nTherefore, if any portion of this Agreement is deemed overbroad by a court of competent jurisdiction, it is the\nparties’ intention that it be redrawn to fit the broadest possible geographic and temporal limitations allowed by\nlaw. The parties intend and agree that this Agreement not be construed or interpreted in favor of either party\nbased upon who drafted its provisions.\n16. Governing Law. This Agreement will be construed and governed in accordance with the laws of the\nState of Minnesota, its conflicts of laws principles notwithstanding.\n17. |urisdiction. For the purpose of resolving conflicts related to or arising out of this Agreement, the\nparties hereby expressly consent to the jurisdiction of the courts of Minnesota and such other courts as\npermitted under the Federal Defend Trade Secrets Act. Employee consents to personal jurisdiction in the State\nof Minnesota.\n[The remainder of this page has been left blank intentionally. Signature page attached]\n \nEXECUTION COPY\nIN WITNESS WHEREOF, Apogee and Employee have duly executed this Agreement under seal as of the day\nand year first above written.\nDate: 8/5/19 APOGEE ENTERPRISES, INC.\nByfs/ Curtis]. Dobler\nIts:Executive Vice President Human Resources\nEMPL OY EE\nDate: 8/5/ 19\n/s/ Brent C. Jewell\nren . ewe	EXHIBIT 10.1\nEXECUTION COPY\nEMPLOYEE NONCOMPETITION\nAND CONFIDENTIALITY AGREEMENT\nTHIS EMPLOYEE NON-COMPETITION AND CONFIDENTIALITY AGREEMENT Agreement") is\neffective on August 5, 2019, by and between Apogee Enterprises, Inc. ("Apogee") and Brent C. Jewell, who\nresides at 3165 Lake Shore Boulevard, Minnetonka, Minnesota 55491 ("Employee").\nWHEREAS, A pogee has offered a promotion to Employee to become President of the Architectural Framing\nSystems segment ("Promotion") effective ugust 5, 2019; and\nWHEREAS, if Employee accepts this Promotion, he will receive a $49,000 increase in base salary and an\naward of an additional 10,000 shares of restricted Apogee stock; and\nWHEREAS, prior to accepting this Promotion Employee was informed that as a condition of the Promotion,\nhe would be required to agree to restrictions on competition and the use of confidential information; and\nWHEREAS, pogee and Employee acknowledge that Apogee's business is highly competitive and will be\nsubstantially harmed in the competitive marketplace if the relationships they develop with vendors and\ncustomers is used to the detriment of Apogee, or A pogee Members, or to the benefit of others; and\nWHEREAS, Apogee's business includes confidential information which is protected and kept secret by\nA pogee and A pogee will be substantially harmed in the competitive marketplace if the confidential information\nis used to its detriment or to the benefit of others; and\nWHEREAS, A pogee desires reasonable protection of its confidential business and technical information and\nrelationships, which have been and will be acquired and is being developed by Apogee, at substantial expense;\nand\nWHEREAS, the Employee understands and agrees that he will fill a very important role at Apogee and is\nwilling to enter into restrictions on competition in exchange for the consideration provided hereunder.\nNOW THEREFORE, in consideration of the foregoing, of the mutual promises herein contained, and of other\ngood and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties\nhereto, intending legally to be bound, hereby agree as follows:\n1.\nAdoption of Recitals. The parties adopt and incorporate the above Recitals into this A greement.\n2.\nTerm of Agreement. This A greement shall commence on the effective date above written. It shall\nsurvive termination of the Employee's employment with Apogee or an A pogee Member for any reason.\n1\nEXECUTION COPY\n3.\nConsideration.\nEmployee acknowledges that Employee has had an opportunity to review\nA greement, and Employee understands that the Promotion is conditioned upon Employee's acceptance of the\nterms herein. Employee further agrees that Employee has received independent, adequate and sufficient\nconsideration to which Employee is not otherwise entitled, for Employee's agreement to, and acceptance of,\nthe terms herein.\n4.\nApogee Member. As used herein, the terms Apogee Member" and Apogee Members" shall include\nany corporation which is at any time a parent or direct or indirect subsidiary of Apogee, or any corporation or\nentity which is an affiliate of Apogee by virtue of Apogee owning more than five percent (5%) of the entity or\nthe entity owning more than five percent (5%) of Apogee. Apogee Member" shall include, but not be limited\nto, the following entities that are owned in part by pogee or which own part of A pogee, and which share\nConfidential Information among themselves: Apogee Enterprises, Inc., Alumicor Limited pogee ausau\nGroup, Inc. (including Linetec and Wausau Window and Wall Systems), EFCO Corporation, Glassec Vidros\nde Seguranca Ltda., Harmon, Inc., Sotawall Limited, Tru Vue, Inc., Tubelite Inc., Velocity, and Apogee\nCompany, Viracon, Inc. and Viracon Georgia, Inc. All pogee Members are intended third party beneficiaries\nof this Agreement.\n5.\nEmployee Covenants. In recognition of the fact that, as a result of Employee's employment by\nApogee or an Apogee Member, Employee has had or will have access to and gain knowledge of highly\nconfidential or proprietary information or trade secrets pertaining to pogee and Apogee Members, as well as\nthe customers, suppliers, joint ventures, licensors, licensees, distributors or other persons and entities with\nwhom Apogee and any Apogee Member does business ("Confidential Information"), which Apogee and\nApogee Members have expended time, resources and money to obtain or develop and which have significant\nvalue to Apogee and pogee Members, Employee agrees for the benefit of Apogee and pogee Members, and\nas a material condition to Employee's Promotion, as follows.\n(a) Non-Disclosure of Confidential Information. Employee acknowledges that Employee will receive\naccess or have received access to Confidential Information about A pogee and Apogee Members, that\nthis information was obtained or developed by Apogee and pogee Members at great expense and is\nzealously guarded by Apogee and Apogee Members from unauthorized disclosure and that\nEmployee's possession of this special knowledge is due solely to Employee's employment with\npogee or one or more Apogee Members. In recognition of the foregoing, Employee will not at any\ntime during employment or following termination of employment for any reason, disclose, use or\notherwise make available to any third party any Confidential Information relating to pogee or any\npogee Member's business, products, services, customers, vendors or suppliers; trade secrets, data,\nspecifications, developments, inventions and research activity; marketing and sales strategies,\ninformation and techniques; long and short term plans; existing and prospective client, vendor,\nsupplier and employee lists, contacts and information; financial, personnel and information system\ninformation and applications; and any other information concerning the business of Apogee or any\npogee Member which is not disclosed to the general public or known in the industry, except for\ndisclosure necessary in the course of Employee's duties or with the express written consent\n2\nEXECUTION COPY\nof Apogee or an Apogee Member. All Confidential Information, including all copies, notes\nregarding, and replications of such Confidential Information will remain the sole property of Apogee\nor any pogee Member, as applicable, and must be returned to Apogee or Apogee Members\nimmediately upon termination of Employee's employment.\n(b) Return of Property. Upon termination of employment with Apogee or any pogee Member, or at\nany other time at the request of Apogee or an Apogee Member, Employee shall deliver to a\ndesignated pogee or an Apogee Member representative all records, documents, hardware, software\nand all other property of Apogee and Apogee Members and all copies of such property in\nEmployee's possession. Employee acknowledges and agrees that all such materials are the sole\nproperty in Employee's possession. Employee acknowledges and agrees that all such materials are\nthe sole property of Apogee and Apogee Members and that Employee will certify in writing to\nA pogee or any Apogee Member at the time of delivery, whether upon termination or otherwise, that\nEmployee has complied with this obligation.\n(c) Non-Solicitation of Existing or Prospective Customers, Vendors and Suppliers.\nEmployee\nspecifically acknowledges that the Confidential Information described in Section 5 includes\nconfidential data pertaining to existing and prospective customers, vendors and suppliers of Apogee\nand Apogee Members; that such data is a valuable and unique asset of the business of Apogee and\npogee Members; and that the success or failure of their businesses depends upon their ability to\nestablish and maintain close and continuing personal contacts and working relationships with such\nexisting and prospective customers, vendors, and suppliers and to develop proposals which are\nspecific to such existing and prospective customers, vendors, and suppliers. Therefore, during\nEmployee's employment with Apogee or any Apogee Member and for the eighteen (18) months\nfollowing Employee's employment termination date, Employee agrees that Employee will not,\nexcept on behalf of Apogee and Apogee Members, or with Apogee's or an Apogee Member's\nexpress written consent, solicit, approach, contact or attempt to solicit, approach or contact, either\ndirectly or indirectly, on Employee's own behalf or on behalf of any other person or entity, any\nexisting or prospective customers, vendors, or suppliers of Apogee and Apogee Members with\nwhom Employee had contact or about whom Employee gained Confidential Information during\nEmployee's employment with Apogee or any Apogee Members for the purpose of obtaining\nbusiness or engaging in any commercial relationship that would be competitive with the "Business\nof the Company" (as defined below in Section 5(e)(i)) or cause such customer, supplier, or vendor to\nmaterially change or terminate its business or commercial relationship with pogee or any Apogee\nMember.\n(d) Non-Solicitation of Employees.\nEmployee specifically acknowledges that the Confidential\nInformation described in Section 5 also includes confidential data pertaining to employees and\nagents of Apogee or Apogee Members, and Employee further agrees that during Employee's\nemployment with Apogee and\n3\nEXECUTION COPY\nApogee Members and for the eighteen (18) months following Employee's employment termination\ndate, Employee will not, directly or indirectly, on Employee's own behalf or on behalf of any other\nperson or entity, solicit, contact, approach, encourage, induce or attempt to solicit, contact, approach,\nencourage or induce any of the employees or agents of A pogee or any Apogee Member to terminate\ntheir employment or agency with Apogee or any Apogee Member.\n(e) Non-Competition.\nEmployee covenants and agrees that during Employee's employment with\nApogee or any Apogee Member and for the eighteen (18) months following Employee's\nemployment termination date, Employee will not, in any geographic market in which Employee\nworked on behalf of Apogee or any Apogee Member, or for which Employee had any sales,\nmarketing, operational, logistical or other management or oversight responsibility, engage in or\ncarry on, directly or indirectly, as an owner, employee, agent associate, consultant, partner or in any\nother capacity, a business competitive with the Business of the Company.\ni.\nThe "Business of the Company" shall mean any business in which Apogee or any pogee\nMember was involved or was investing in for the purpose of being involved, at any time within\nthe twenty-four (24) months preceding Employee's employment termination date.\nii. To "engage in or carry on" shall mean to have ownership in any enterprise engaged in the\nBusiness of the Company (excluding ownership of up to 1% of the outstanding shares of a\npublicly traded company) or to consult, work in, direct or have responsibility for any area of the\nBusiness of the Company.\n(f) Remedies for Breach of These Covenants. Any breach of the covenants in this Section 5 likely will\ncause irreparable harm to Apogee and Apogee Members for which money damages could not\nreasonably or adequately compensate Apogee or Apogee Members. ccordingly, A pogee and any\nApogee Member shall be entitled to all forms of injunctive relief (whether temporary, emergency,\npreliminary, prospective or permanent) to enforce such covenants, in addition to damages and other\navailable remedies, and Employee consents to the issuance of such an injunction without the\nnecessity of Apogee or any Apogee Member posting a bond. In the event that injunctive relief or\ndamages are awarded to Apogee or any Apogee Member for any breach by Executive of this\nSection 5, Employee further agrees that Apogee or any pogee Member shall be entitled to recover\nits costs and attorneys' fees necessary to obtain such recovery. In addition, Employee agrees that\nupon Employee's breach of any covenant in this Section 5, all unexercised options issued under any\nstock option plans of Apogee will immediately terminate and Apogee and/or an Apogee Member\nshall have the right to exercise any and all of the rights described above.\n4\nEXECUTION COPY\n6.\nAccounting of Profits. Employee covenants and agrees that if Employee shall violate any covenants\nor agreements in this Agreement, Apogee and/or the affected Apogee Member(s) shall be entitled to an\naccounting and repayment of all profits, compensation, commissions, remunerations or benefits which\nEmployee directly or indirectly has realized and/or may realize as a result of, growing out of, or in connection\nwith, any such violation; such remedy shall be in addition to, and not in limitation of, any injunctive relief or\nother rights or remedies to which pogee or A pogee Members are or may be entitled at law or in equity or\nunder this A greement\n7.\nReasonableness of Restrictions.\n(a) Employee has carefully read and considered the provisions of this Agreement and, having done\nso, agrees that the restrictions set forth therein (including, but not limited to, the time period of\nrestriction and the geographical areas of restriction) are fair and reasonable and are reasonably\nrequired for the protection of the interests of Apogee or Apogee Members, their officers,\ndirectors, shareholders and other employees.\n(b) The parties agree that Apogee and pogee Members share confidential information with each\nother and may have relationships with entities that are suppliers, vendors or customers of\nApogee or an Apogee Member while being a competitor of the same, pogee or another\nA pogee Member.\n(c) In the event that, notwithstanding the foregoing, any part of the covenants set forth herein shall\nbe held to be invalid or unenforceable, the remaining parts thereof shall nevertheless continue to\nbe valid and enforceable as though the invalid or unenforceable parts had not been included\ntherein. In the event that any provision of Section 5 relating to time period and/or areas of\nrestriction shall be declared by a court of competent jurisdiction to exceed the maximum time\nperiod or areas such court deems reasonable and enforceable, the agreed upon time period\nand/or areas of restriction shall be deemed to become and thereafter be the maximum time\nperiod and/or areas which such court deems reasonable and enforceable.\n8.\nWaiver. In the event A pogee or any pogee Member maintains an action, either at law, equity, or\nboth, to enforce this A greement against Employee, Employee waives any right to maintain any of the following\ndefenses:\n(a) That this Agreement is not necessary for the protection of the goodwill of Apogee or any Apogee\nMember;\n(b) That this A greement is overbroad in geographic scope or duration;\n(c) That this A greement would impose an undue hardship upon the Employee;\n(d) That A pogee or any A pogee Member has an adequate remedy at law;\n5\nEXECUTION COPY\n(e) That this Agreement is not supported by adequate consideration; or\n(f) That A pogee or any A pogee Member failed to take adequate safeguards to protect the confidentiality\nof the information.\n9.\nBurden and Benefit/Assigns. The Employee may not transfer or assign this A Agreement or any of the\nEmployee's rights or obligations hereunder. Apogee or any Apogee Member may transfer or assign this\nA greement or any of its rights or obligations hereunder with or without notice to the Employee, and this\nA greement shall automatically inure to the benefit of Apogee or any Apogee Members and their respective\nheirs, personal and legal representatives, successors and assigns.\n10.\nSurvival. Employee's obligations under this A greement shall survive termination of the Agreement\nand the employment relationship, regardless of the circumstances of termination of the employment\nrelationship.\n11.\nEmployment At Will. This Agreement does not alter the at will nature of the employm\nrelationship between Employee and Apogee or any pogee Member and Employee. Both parties understand\nthat either party may end the employment relationship at any time, for any reason, without notice. Employee\nhas no right to continued employment with pogee or any pogee Member.\n12. Entire Agreement. This A greement contains the entire agreement and understanding by and between\nEmployee and Apogee and/or any Apogee Member with respect to the subject matter hereof, except that any\nchange in control agreement to which Employee is signatory shall continue in full force and effect. No\nrepresentations, promises, agreements or understandings, written or oral, not herein contained shall be of any\nforce or effect Notwithstanding the above, if Employee is a party to a change in control agreement, it is\nunderstood and agreed that Employee is subject to the covenants described in such change in control\nagreement, despite the shorter duration of such covenants in this Agreement. The covenants described in any\napplicable change in control agreement shall continue for the entire period stated therein, regardless of the\nexpiration of the covenant periods described in this greement.\n13.\nModification; Waiver. No change or modification hereof shall be valid or binding unless the same is\nin writing and signed by the party intended to be bound. No waiver of any provision of this A greement shall be\nvalid unless the same is in writing and signed by the party against whom such waiver is sought to be enforced;\nmoreover, no valid waiver of any provision of this Agreement at any time shall be deemed a waiver of any\nother provision of this Agreement at such time or will be deemed a valid waiver of such provision at any other\ntime. Any delay or failure to enforce any provision of this A greement by A pogee or any pogee Member shall\nalso not constitute a waiver of the right to enforce any part of this A greement.\n14.\nVoluntary Action. Employee enters into this Agreement knowingly and voluntarily and after having\nhad an opportunity to consult with legal counsel if desired.\n15.\nConstruction. It is the intention of the parties hereto that Apogee or any Apogee Members be given\nthe broadest possible protection respecting its confidential information and\n6\nEXECUTION COPY\nrespecting competition by Employee following Employee's separation from Apogee or any Apogee Member.\nTherefore, if any portion of this A greement is deemed overbroad by a court of competent jurisdiction, it is the\nparties' intention that it be redrawn to fit the broadest possible geographic and temporal limitations allowed by\nlaw. The parties intend and agree that this A greement not be construed or interpreted in favor of either party\nbased upon who drafted its provisions.\n16.\nGoverning Law. This Agreement will be construed and governed in accordance with the laws of the\nState of Minnesota, its conflicts of laws principles notwithstanding.\n17. Jurisdiction. For the purpose of resolving conflicts related to or arising out of this A greement, the\nparties hereby expressly consent to the jurisdiction of the courts of Minnesota and such other courts as\npermitted under the Federal Defend Trade Secrets Act. Employee consents to personal jurisdiction in the State\nof Minnesota.\n[The remainder of this page has been left blank intentionally. Signature page attached.]\n7\nEXECUTION COPY\nIN WITNESS WHEREOF, Apogee and Employee have duly executed this A greement under seal as of the day\nand year first above written.\nDate:\n8/5/19\nAPOGEE ENTERPRISES, INC.\nBy/s/ Curtis J. Dobler\nIts: Executive Vice President Human Resources\nEMPLOYEE\nDate:\n8/5/19\n/s/ Brent C. Jewell\nBrent C. ewell\n8	EXHIBIT 10.1\nEXECUTION COPY\nEMPLOYEE NONCOMPETITION\nAND CONFIDENTIALITY AGREEMENT\nTHIS EMPLOYEE NON-COMPETITION AND CONFIDENTIALITY AGREEMENT (“Agreement”) is\neffective on August 5, 2019, by and between Apogee Enterprises, Inc. (“Apogee”) and Brent C. Jewell, who\nresides at 3165 Lake Shore Boulevard, Minnetonka, Minnesota 55491 (“Employee”).\nWHEREAS, Apogee has offered a promotion to Employee to become President of the Architectural Framing\nSystems segment (“Promotion”) effective August 5, 2019; and\nWHEREAS, if Employee accepts this Promotion, he will receive a $49,000 increase in base salary and an\naward of an additional 10,000 shares of restricted Apogee stock; and\nWHEREAS, prior to accepting this Promotion Employee was informed that as a condition of the Promotion,\nhe would be required to agree to restrictions on competition and the use of confidential information; and\nWHEREAS, Apogee and Employee acknowledge that Apogee’s business is highly competitive and will be\nsubstantially harmed in the competitive marketplace if the relationships they develop with vendors and\ncustomers is used to the detriment of Apogee, or Apogee Members, or to the benefit of others; and\nWHEREAS, Apogee’s business includes confidential information which is protected and kept secret by\nApogee and Apogee will be substantially harmed in the competitive marketplace if the confidential information\nis used to its detriment or to the benefit of others; and\nWHEREAS, Apogee desires reasonable protection of its confidential business and technical information and\nrelationships, which have been and will be acquired and is being developed by Apogee, at substantial expense;\nand\nWHEREAS, the Employee understands and agrees that he will fill a very important role at Apogee and is\nwilling to enter into restrictions on competition in exchange for the consideration provided hereunder.\nNOW THEREFORE, in consideration of the foregoing, of the mutual promises herein contained, and of other\ngood and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties\nhereto, intending legally to be bound, hereby agree as follows:\n1. Adoption of Recitals. The parties adopt and incorporate the above Recitals into this Agreement.\n2.\nTerm of Agreement. This Agreement shall commence on the effective date above written. It shall\nsurvive termination of the Employee’s employment with Apogee or an Apogee Member for any reason.\n1\nEXECUTION COPY\n3.\nConsideration.\nEmployee acknowledges that Employee has had an opportunity to review this\nAgreement, and Employee understands that the Promotion is conditioned upon Employee’s acceptance of the\nterms herein. Employee further agrees that Employee has received independent, adequate and sufficient\nconsideration to which Employee is not otherwise entitled, for Employee’s agreement to, and acceptance of,\nthe terms herein.\n4. Apogee Member. As used herein, the terms “Apogee Member” and “Apogee Members” shall include\nany corporation which is at any time a parent or direct or indirect subsidiary of Apogee, or any corporation or\nentity which is an affiliate of Apogee by virtue of Apogee owning more than five percent (5%) of the entity or\nthe entity owning more than five percent (5%) of Apogee. “Apogee Member” shall include, but not be limited\nto, the following entities that are owned in part by Apogee or which own part of Apogee, and which share\nConfidential Information among themselves: Apogee Enterprises, Inc., Alumicor Limited, Apogee Wausau\nGroup, Inc. (including Linetec and Wausau Window and Wall Systems), EFCO Corporation, Glassec Vidros\nde Seguranca Ltda., Harmon, Inc., Sotawall Limited, Tru Vue, Inc., Tubelite Inc., Velocity, and Apogee\nCompany, Viracon, Inc. and Viracon Georgia, Inc. All Apogee Members are intended third party beneficiaries\nof this Agreement.\n5.\nEmployee Covenants.\nIn recognition of the fact that, as a result of Employee’s employment by\nApogee or an Apogee Member, Employee has had or will have access to and gain knowledge of highly\nconfidential or proprietary information or trade secrets pertaining to Apogee and Apogee Members, as well as\nthe customers, suppliers, joint ventures, licensors, licensees, distributors or other persons and entities with\nwhom Apogee and any Apogee Member does business (“Confidential Information”), which Apogee and\nApogee Members have expended time, resources and money to obtain or develop and which have significant\nvalue to Apogee and Apogee Members, Employee agrees for the benefit of Apogee and Apogee Members, and\nas a material condition to Employee’s Promotion, as follows.\n(a) Non-Disclosure of Confidential Information. Employee acknowledges that Employee will receive\naccess or have received access to Confidential Information about Apogee and Apogee Members, that\nthis information was obtained or developed by Apogee and Apogee Members at great expense and is\nzealously guarded by Apogee and Apogee Members from unauthorized disclosure and that\nEmployee’s possession of this special knowledge is due solely to Employee’s employment with\nApogee or one or more Apogee Members. In recognition of the foregoing, Employee will not at any\ntime during employment or following termination of employment for any reason, disclose, use or\notherwise make available to any third party any Confidential Information relating to Apogee or any\nApogee Member’s business, products, services, customers, vendors or suppliers; trade secrets, data,\nspecifications, developments, inventions and research activity; marketing and sales strategies,\ninformation and techniques; long and short term plans; existing and prospective client, vendor,\nsupplier and employee lists, contacts and information; financial, personnel and information system\ninformation and applications; and any other information concerning the business of Apogee or any\nApogee Member which is not disclosed to the general public or known in the industry, except for\ndisclosure necessary in the course of Employee’s duties or with the express written consent\n2\nEXECUTION COPY\nof Apogee or an Apogee Member. All Confidential Information, including all copies, notes\nregarding, and replications of such Confidential Information will remain the sole property of Apogee\nor any Apogee Member, as applicable, and must be returned to Apogee or Apogee Members\nimmediately upon termination of Employee’s employment.\n(b) Return of Property. Upon termination of employment with Apogee or any Apogee Member, or at\nany other time at the request of Apogee or an Apogee Member, Employee shall deliver to a\ndesignated Apogee or an Apogee Member representative all records, documents, hardware, software\nand all other property of Apogee and Apogee Members and all copies of such property in\nEmployee’s possession. Employee acknowledges and agrees that all such materials are the sole\nproperty in Employee’s possession. Employee acknowledges and agrees that all such materials are\nthe sole property of Apogee and Apogee Members and that Employee will certify in writing to\nApogee or any Apogee Member at the time of delivery, whether upon termination or otherwise, that\nEmployee has complied with this obligation.\n(c) Non-Solicitation of Existing or Prospective Customers, Vendors and Suppliers.\nEmployee\nspecifically acknowledges that the Confidential Information described in Section 5 includes\nconfidential data pertaining to existing and prospective customers, vendors and suppliers of Apogee\nand Apogee Members; that such data is a valuable and unique asset of the business of Apogee and\nApogee Members; and that the success or failure of their businesses depends upon their ability to\nestablish and maintain close and continuing personal contacts and working relationships with such\nexisting and prospective customers, vendors, and suppliers and to develop proposals which are\nspecific to such existing and prospective customers, vendors, and suppliers. Therefore, during\nEmployee’s employment with Apogee or any Apogee Member and for the eighteen (18) months\nfollowing Employee’s employment termination date, Employee agrees that Employee will not,\nexcept on behalf of Apogee and Apogee Members, or with Apogee’s or an Apogee Member’s\nexpress written consent, solicit, approach, contact or attempt to solicit, approach or contact, either\ndirectly or indirectly, on Employee’s own behalf or on behalf of any other person or entity, any\nexisting or prospective customers, vendors, or suppliers of Apogee and Apogee Members with\nwhom Employee had contact or about whom Employee gained Confidential Information during\nEmployee’s employment with Apogee or any Apogee Members for the purpose of obtaining\nbusiness or engaging in any commercial relationship that would be competitive with the “Business\nof the Company” (as defined below in Section 5(e)(i)) or cause such customer, supplier, or vendor to\nmaterially change or terminate its business or commercial relationship with Apogee or any Apogee\nMember.\n(d) Non-Solicitation of Employees.\nEmployee specifically acknowledges that the Confidential\nInformation described in Section 5 also includes confidential data pertaining to employees and\nagents of Apogee or Apogee Members, and Employee further agrees that during Employee’s\nemployment with Apogee and\n3\nEXECUTION COPY\nApogee Members and for the eighteen (18) months following Employee’s employment termination\ndate, Employee will not, directly or indirectly, on Employee’s own behalf or on behalf of any other\nperson or entity, solicit, contact, approach, encourage, induce or attempt to solicit, contact, approach,\nencourage or induce any of the employees or agents of Apogee or any Apogee Member to terminate\ntheir employment or agency with Apogee or any Apogee Member.\n(e) Non-Competition.\nEmployee covenants and agrees that during Employee’s employment with\nApogee or any Apogee Member and for the eighteen (18) months following Employee’s\nemployment termination date, Employee will not, in any geographic market in which Employee\nworked on behalf of Apogee or any Apogee Member, or for which Employee had any sales,\nmarketing, operational, logistical or other management or oversight responsibility, engage in or\ncarry on, directly or indirectly, as an owner, employee, agent, associate, consultant, partner or in any\nother capacity, a business competitive with the Business of the Company.\ni. The “Business of the Company” shall mean any business in which Apogee or any Apogee\nMember was involved, or was investing in for the purpose of being involved, at any time within\nthe twenty-four (24) months preceding Employee’s employment termination date.\nii. To “engage in or carry on” shall mean to have ownership in any enterprise engaged in the\nBusiness of the Company (excluding ownership of up to 1% of the outstanding shares of a\npublicly traded company) or to consult, work in, direct or have responsibility for any area of the\nBusiness of the Company.\n(f) Remedies for Breach of These Covenants. Any breach of the covenants in this Section 5 likely will\ncause irreparable harm to Apogee and Apogee Members for which money damages could not\nreasonably or adequately compensate Apogee or Apogee Members. Accordingly, Apogee and any\nApogee Member shall be entitled to all forms of injunctive relief (whether temporary, emergency,\npreliminary, prospective or permanent) to enforce such covenants, in addition to damages and other\navailable remedies, and Employee consents to the issuance of such an injunction without the\nnecessity of Apogee or any Apogee Member posting a bond. In the event that injunctive relief or\ndamages are awarded to Apogee or any Apogee Member for any breach by Executive of this\nSection 5, Employee further agrees that Apogee or any Apogee Member shall be entitled to recover\nits costs and attorneys’ fees necessary to obtain such recovery. In addition, Employee agrees that\nupon Employee’s breach of any covenant in this Section 5, all unexercised options issued under any\nstock option plans of Apogee will immediately terminate and Apogee and/or an Apogee Member\nshall have the right to exercise any and all of the rights described above.\n4\nEXECUTION COPY\n6.\nAccounting of Profits. Employee covenants and agrees that if Employee shall violate any covenants\nor agreements in this Agreement, Apogee and/or the affected Apogee Member(s) shall be entitled to an\naccounting and repayment of all profits, compensation, commissions, remunerations or benefits which\nEmployee directly or indirectly has realized and/or may realize as a result of, growing out of, or in connection\nwith, any such violation; such remedy shall be in addition to, and not in limitation of, any injunctive relief or\nother rights or remedies to which Apogee or Apogee Members are or may be entitled at law or in equity or\nunder this Agreement.\n7. Reasonableness of Restrictions.\n(a) Employee has carefully read and considered the provisions of this Agreement and, having done\nso, agrees that the restrictions set forth therein (including, but not limited to, the time period of\nrestriction and the geographical areas of restriction) are fair and reasonable and are reasonably\nrequired for the protection of the interests of Apogee or Apogee Members, their officers,\ndirectors, shareholders and other employees.\n(b) The parties agree that Apogee and Apogee Members share confidential information with each\nother and may have relationships with entities that are suppliers, vendors or customers of\nApogee or an Apogee Member while being a competitor of the same, Apogee or another\nApogee Member.\n(c) In the event that, notwithstanding the foregoing, any part of the covenants set forth herein shall\nbe held to be invalid or unenforceable, the remaining parts thereof shall nevertheless continue to\nbe valid and enforceable as though the invalid or unenforceable parts had not been included\ntherein. In the event that any provision of Section 5 relating to time period and/or areas of\nrestriction shall be declared by a court of competent jurisdiction to exceed the maximum time\nperiod or areas such court deems reasonable and enforceable, the agreed upon time period\nand/or areas of restriction shall be deemed to become and thereafter be the maximum time\nperiod and/or areas which such court deems reasonable and enforceable.\n8.\nWaiver. In the event Apogee or any Apogee Member maintains an action, either at law, equity, or\nboth, to enforce this Agreement against Employee, Employee waives any right to maintain any of the following\ndefenses:\n(a) That this Agreement is not necessary for the protection of the goodwill of Apogee or any Apogee\nMember;\n(b)That this Agreement is overbroad in geographic scope or duration;\n(c) That this Agreement would impose an undue hardship upon the Employee;\n(d)That Apogee or any Apogee Member has an adequate remedy at law;\n5\nEXECUTION COPY\n(e) That this Agreement is not supported by adequate consideration; or\n(f) That Apogee or any Apogee Member failed to take adequate safeguards to protect the confidentiality\nof the information.\n9.\nBurden and Benefit/Assigns. The Employee may not transfer or assign this Agreement or any of the\nEmployee’s rights or obligations hereunder. Apogee or any Apogee Member may transfer or assign this\nAgreement or any of its rights or obligations hereunder with or without notice to the Employee, and this\nAgreement shall automatically inure to the benefit of Apogee or any Apogee Members and their respective\nheirs, personal and legal representatives, successors and assigns.\n10. Survival. Employee’s obligations under this Agreement shall survive termination of the Agreement\nand the employment relationship, regardless of the circumstances of termination of the employment\nrelationship.\n11.\nEmployment At Will.\nThis Agreement does not alter the at will nature of the employment\nrelationship between Employee and Apogee or any Apogee Member and Employee. Both parties understand\nthat either party may end the employment relationship at any time, for any reason, without notice. Employee\nhas no right to continued employment with Apogee or any Apogee Member.\n12. Entire Agreement. This Agreement contains the entire agreement and understanding by and between\nEmployee and Apogee and/or any Apogee Member with respect to the subject matter hereof, except that any\nchange in control agreement to which Employee is signatory shall continue in full force and effect. No\nrepresentations, promises, agreements or understandings, written or oral, not herein contained shall be of any\nforce or effect. Notwithstanding the above, if Employee is a party to a change in control agreement, it is\nunderstood and agreed that Employee is subject to the covenants described in such change in control\nagreement, despite the shorter duration of such covenants in this Agreement. The covenants described in any\napplicable change in control agreement shall continue for the entire period stated therein, regardless of the\nexpiration of the covenant periods described in this Agreement.\n13. Modification; Waiver. No change or modification hereof shall be valid or binding unless the same is\nin writing and signed by the party intended to be bound. No waiver of any provision of this Agreement shall be\nvalid unless the same is in writing and signed by the party against whom such waiver is sought to be enforced;\nmoreover, no valid waiver of any provision of this Agreement at any time shall be deemed a waiver of any\nother provision of this Agreement at such time or will be deemed a valid waiver of such provision at any other\ntime. Any delay or failure to enforce any provision of this Agreement by Apogee or any Apogee Member shall\nalso not constitute a waiver of the right to enforce any part of this Agreement.\n14. Voluntary Action. Employee enters into this Agreement knowingly and voluntarily and after having\nhad an opportunity to consult with legal counsel if desired.\n15. Construction. It is the intention of the parties hereto that Apogee or any Apogee Members be given\nthe broadest possible protection respecting its confidential information and\n6\nEXECUTION COPY\nrespecting competition by Employee following Employee’s separation from Apogee or any Apogee Member.\nTherefore, if any portion of this Agreement is deemed overbroad by a court of competent jurisdiction, it is the\nparties’ intention that it be redrawn to fit the broadest possible geographic and temporal limitations allowed by\nlaw. The parties intend and agree that this Agreement not be construed or interpreted in favor of either party\nbased upon who drafted its provisions.\n16. Governing Law. This Agreement will be construed and governed in accordance with the laws of the\nState of Minnesota, its conflicts of laws principles notwithstanding.\n17.\nJurisdiction. For the purpose of resolving conflicts related to or arising out of this Agreement, the\nparties hereby expressly consent to the jurisdiction of the courts of Minnesota and such other courts as\npermitted under the Federal Defend Trade Secrets Act. Employee consents to personal jurisdiction in the State\nof Minnesota.\n[The remainder of this page has been left blank intentionally. Signature page attached.]\n7\nEXECUTION COPY\nIN WITNESS WHEREOF, Apogee and Employee have duly executed this Agreement under seal as of the day\nand year first above written.\nDate:\n8/5/19\nAPOGEE ENTERPRISES, INC.\nBy:/s/ Curtis J. Dobler\nIts:Executive Vice President Human Resources\nEMPLOYEE\nDate:\n8/5/19\n/s/ Brent C. Jewell\nBrent C. Jewell\n8
857ea882666c28b0036f403b84728dfd.pdf	effective_date jurisdiction party term	ADDENDUM A to Offer Letter for Ken W. Arndt\nNon-Disclosure Agreement\nBy my signature on the offer of conditional employment to which this Addendum A is\nattached, as well as my signature below, I acknowledge and agree to the following in\nconsideration for my new employment and related compensation by Frontier\nCommunications or one of its subsidiaries, affiliates or divisions (collectively, “Frontier”):\n1.\nNon-Disclosure. I understand that during my employment with Frontier\n(including, for purposes of this Agreement, any predecessor companies or business units\nthat have been acquired by Frontier), I will have access to Proprietary Information (as\ndefined in Paragraph 3 below) and Frontier Materials (as defined in Paragraph 2 below). I\nagree to hold all Proprietary Information and Frontier Materials in strict confidence and in\ncompliance with Frontier’s corporate policies. I will not take, use, copy, disclose, publish,\nprovide access to or summarize any Proprietary Information or Frontier Materials except to\nthe extent necessary to carry out my duties and responsibilities as an employee of Frontier.\nI also agree that I will not use any confidential information of any prior employer in\nconnection with performing my duties at Frontier.\n2.\nFrontier Materials. All files, records, proposals, specifications or other\ndocuments, and all computer software, software applications, files, databases and the like\nrelating to Frontier ’s business or which contain Proprietary Information, whether prepared\nby me or otherwise coming into my possession (“Frontier Materials”), shall remain the\nexclusive property and intellectual property of Frontier. Upon the termination of my\nemployment for any reason, or upon the request of Frontier if sooner, I will promptly\ndeliver to Frontier all originals and copies of Frontier Materials in my possession, custody\nor control (wherever located, including my home or laptop computer), and shall not retain\nany copies of the Frontier Materials in any form or medium whatsoever.\n3.\nProprietary Information Definition. For the purposes of this Agreement,\nthe term “Proprietary Information” shall include all trade secrets, know-how and other\ninformation in any form or medium that relates to the past, current or future business of\nFrontier or its subsidiaries, affiliates or divisions (or is given to Frontier in confidence by a\nthird party) and is not generally available to the public or generally known in the industries\nin which Frontier does business or may become engaged, including, without limitation,\nany formulas, devices, inventions, methods, techniques or processes, compilations of\ninformation, records and specifications and any other information of Frontier relating to its\nservices and products (offered or to be offered), research, development, marketing, pricing,\nclients and prospective clients, business methods, strategies, financial condition,\ntransactions, government and regulatory activities and approvals, plans, personnel\ninformation and capabilities, policies or prospects. “Proprietary Information” shall not\ninclude any portions of the foregoing that I can demonstrate by sufficient evidence are (i)\nmade legitimately available to me by a third party without breach of any obligation of\nconfidence to any person or (ii) required by law to be disclosed by me, provided that I\nmust give Frontier prompt written notice of any such requirement, disclose no more\ninformation than is so required, and cooperate fully with all efforts by Frontier to obtain a\nprotective order or similar confidentiality treatment for such information.\n3\n4.\nAgreement Applicable to Information Acquired Businesses. For the\navoidance of doubt, I acknowledge that if I was employed by a predecessor company or\nbusiness unit of Frontier (i.e ., a company or business unit that was subsequently acquired\nby Frontier), my representations, warranties, obligations and undertakings under this\nAgreement shall apply as if such predecessor company or business unit (including any\npredecessors thereof) had at all times been a part of Frontier.\n5.\nInterpretation and Enforcement. I agree that the provisions of this\nAgreement are reasonable. If a court determines, however, that any provision of this\nAgreement is unreasonable, then the parties hereto agree that the provisions of this\nAgreement should be interpreted and enforced to the maximum extent which such court\ndeems reasonable. If any provision of this Agreement is otherwise inoperative or\nunenforceable for any reason, such circumstance shall not have the effect of rendering the\nprovision in question inoperative or unenforceable in any other circumstance, or of\nrendering any other provision of this Agreement inoperative or unenforceable to any extent\nwhatsoever.\n6.\nSuccessors and Assigns. This Agreement shall be binding upon me and my\nheirs and legal representatives and my permitted assigns. I understand and agree that I\ncannot assign my obligations and undertakings under this Agreement to any other person\nor entity under any circumstances whatsoever, without the prior consent of Frontier, but\nthat Frontier may assign this Agreement to any subsidiary, affiliate or successor.\n7.\nAt-Will Employment; No Termination. I understand that this Agreement\ndoes not constitute a contract of employment for any specific term and that Frontier or I\nmay terminate my employment at any time, for any or no reason, unless (i) a specific term\nof employment has been agreed to in a separate, written agreement signed by an authorized\nofficer of Frontier or (ii) the terms and conditions of my employment are governed by a\nvalid collective bargaining agreement. I acknowledge and agree that I may not terminate\nthis Agreement for any reason, and that my obligations and undertakings under this\nAgreement will continue to apply regardless of whether I transfer at some time from one\nsubsidiary, division or affiliate of Frontier to another, and even after my employment with\nFrontier ends for any reason.\n8.\nApplicable Law. This Agreement shall be construed and enforced in\naccordance with, and shall be governed by, the laws of the state of Connecticut applicable\nto contracts executed in and to be fully performed in such state, or any other state law as\napplicable by the circumstances.\nBy my signature below, I acknowledge that I have read and understand this Non-\nDisclosure Agreement and that I voluntarily accept its terms. I understand and agree that\nan electronic or digital signature is equivalent to a handwritten signature.\n__________________________\n_____________________\nKenneth W. Arndt\nDate\n4	ADDENDUM A to Offer Letter for Ken W. Arndt\nNon-Disclosure Agreement\nBy my signature on the offer of conditional employment to which this Addendum A is\nattached, as well as my signature below, I acknowledge and agree to the following in\nconsideration for my new employment and related compensation by Frontier\nCommunications or one of its subsidiaries, affiliates or divisions (collectively, “Frontier”):\n1. Non-Disclosure. 1 understand that during my employment with Frontier\n(including, for purposes of this Agreement, any predecessor companies or business units\nthat have been acquired by Frontier), I will have access to Proprietary Information (as\ndefined in Paragraph 3 below) and Frontier Materials (as defined in Paragraph 2 below). I\nagree to hold all Proprietary Information and Frontier Materials in strict confidence and in\ncompliance with Frontier’s corporate policies. I will not take, use, copy, disclose, publish,\nprovide access to or summarize any Proprietary Information or Frontier Materials except to\nthe extent necessary to carry out my duties and responsibilities as an employee of Frontier.\nI also agree that I will not use any confidential information of any prior employer in\nconnection with performing my duties at Frontier.\n2. Frontier Materials. All files, records, proposals, specifications or other\ndocuments, and all computer software, software applications, files, databases and the like\nrelating to Frontier’s business or which contain Proprietary Information, whether prepared\nby me or otherwise coming into my possession (“Frontier Materials”), shall remain the\nexclusive property and intellectual property of Frontier. Upon the termination of my\nemployment for any reason, or upon the request of Frontier if sooner, I will promptly\ndeliver to Frontier all originals and copies of Frontier Materials in my possession, custody\nor control (wherever located, including my home or laptop computer), and shall not retain\nany copies of the Frontier Materials in any form or medium whatsoever.\n3. Proprietary Information Definition. For the purposes of this Agreement,\nthe term “Proprietary Information” shall include all trade secrets, know-how and other\ninformation in any form or medium that relates to the past, current or future business of\nFrontier or its subsidiaries, affiliates or divisions (or is given to Frontier in confidence by a\nthird party) and is not generally available to the public or generally known in the industries\nin which Frontier does business or may become engaged, including, without limitation,\nany formulas, devices, inventions, methods, techniques or processes, compilations of\ninformation, records and specifications and any other information of Frontier relating to its\nservices and products (offered or to be offered), research, development, marketing, pricing,\nclients and prospective clients, business methods, strategies, financial condition,\ntransactions, government and regulatory activities and approvals, plans, personnel\ninformation and capabilities, policies or prospects. “Proprietary Information” shall not\ninclude any portions of the foregoing that I can demonstrate by sufficient evidence are (i)\nmade legitimately available to me by a third party without breach of any obligation of\nconfidence to any person or (ii) required by law to be disclosed by me, provided that 1\nmust give Frontier prompt written notice of any such requirement, disclose no more\ninformation than is so required, and cooperate fully with all efforts by Frontier to obtain a\nprotective order or similar confidentiality treatment for such information.\n4. Agreement Applicable to Information Acquired Businesses. For the\navoidance of doubt, I acknowledge that if I was employed by a predecessor company or\nbusiness unit of Frontier (i.e., a company or business unit that was subsequently acquired\nby Frontier), my representations, warranties, obligations and undertakings under this\nAgreement shall apply as if such predecessor company or business unit (including any\npredecessors thereof) had at all times been a part of Frontier.\n5. Interpretation and Enforcement. 1 agree that the provisions of this\nAgreement are reasonable. If a court determines, however, that any provision of this\nAgreement is unreasonable, then the parties hereto agree that the provisions of this\nAgreement should be interpreted and enforced to the maximum extent which such court\ndeems reasonable. If any provision of this Agreement is otherwise inoperative or\nunenforceable for any reason, such circumstance shall not have the effect of rendering the\nprovision in question inoperative or unenforceable in any other circumstance, or of\nrendering any other provision of this Agreement inoperative or unenforceable to any extent\nwhatsoever.\n6. Successors and Assigns. This Agreement shall be binding upon me and my\nheirs and legal representatives and my permitted assigns. I understand and agree that I\ncannot assign my obligations and undertakings under this Agreement to any other person\nor entity under any circumstances whatsoever, without the prior consent of Frontier, but\nthat Frontier may assign this Agreement to any subsidiary, affiliate or successor.\n7. At-Will Employment; No Termination. 1 understand that this Agreement\ndoes not constitute a contract of employment for any specific term and that Frontier or I\nmay terminate my employment at any time, for any or no reason, unless (i) a specific term\nof employment has been agreed to in a separate, written agreement signed by an authorized\nofficer of Frontier or (ii) the terms and conditions of my employment are governed by a\nvalid collective bargaining agreement. I acknowledge and agree that I may not terminate\nthis Agreement for any reason, and that my obligations and undertakings under this\nAgreement will continue to apply regardless of whether I transfer at some time from one\nsubsidiary, division or affiliate of Frontier to another, and even after my employment with\nFrontier ends for any reason.\n8. Applicable Law. This Agreement shall be construed and enforced in\naccordance with, and shall be governed by, the laws of the state of Connecticut applicable\nto contracts executed in and to be fully performed in such state, or any other state law as\napplicable by the circumstances.\nBy my signature below, I acknowledge that I have read and understand this Non-\nDisclosure Agreement and that I voluntarily accept its terms. I understand and agree that\nan electronic or digital signature is equivalent to a handwritten signature.\n \nKenneth W. Arndt Date	ADDENDUM A to Offer Letter for Ken W. Arndt\nNon-Disclosure Agreement\nBy my signature on the offer of conditional employment to which this Addendum A is\nattached, as well as my signature below, I acknowledge and agree to the following in\nconsideration for my new employment and related compensation by Frontier\nCommunications or one of its subsidiaries, affiliates or divisions (collectively, "Frontier"):\n1.\nNon-Disclosure. I understand that during my employment with Frontier\n(including, for purposes of this Agreement, any predecessor companies or business units\nthat have been acquired by Frontier), I will have access to Proprietary Information (as\ndefined in Paragraph 3 below) and Frontier Materials (as defined in Paragraph 2 below). I\nagree to hold all Proprietary Information and Frontier Materials in strict confidence and in\ncompliance with Frontier's corporate policies. I will not take, use, copy, disclose, publish,\nprovide access to or summarize any Proprietary Information or Frontier Materials except to\nthe extent necessary to carry out my duties and responsibilities as an employee of Frontier.\nI also agree that I will not use any confidential information of any prior employer in\nconnection with performing my duties at Frontier.\n2.\nFrontier Materials. All files, records, proposals, specifications or other\ndocuments, and all computer software, software applications, files, databases and the like\nrelating to Frontier's business or which contain Proprietary Information, whether prepared\nby me or otherwise coming into my possession ("Frontier Materials"), shall remain the\nexclusive property and intellectual property of Frontier. Upon the termination of my\nemployment for any reason, or upon the request of Frontier if sooner, I will promptly\ndeliver to Frontier all originals and copies of Frontier Materials in my possession, custody\nor control (wherever located, including my home or laptop computer), and shall not retain\nany copies of the Frontier Materials in any form or medium whatsoever.\n3. Proprietary Information Definition. For the purposes of this Agreement,\nthe term "Proprietary Information" shall include all trade secrets, know-how and other\ninformation in any form or medium that relates to the past, current or future business of\nFrontier or its subsidiaries, affiliates or divisions (or is given to Frontier in confidence by a\nthird party) and is not generally available to the public or generally known in the industries\nin which Frontier does business or may become engaged, including, without limitation,\nany formulas, devices, inventions, methods, techniques or processes, compilations of\ninformation, records and specifications and any other information of Frontier relating to its\nservices and products (offered or to be offered), research, development, marketing, pricing,\nclients and prospective clients, business methods, strategies, financial condition,\ntransactions, government and regulatory activities and approvals, plans, personnel\ninformation and capabilities, policies or prospects. "Proprietary Information" shall not\ninclude any portions of the foregoing that I can demonstrate by sufficient evidence are (i)\nmade legitimately available to me by a third party without breach of any obligation of\nconfidence to any person or (ii) required by law to be disclosed by me, provided that I\nmust give Frontier prompt written notice of any such requirement, disclose no more\ninformation than is so required, and cooperate fully with all efforts by Frontier to obtain a\nprotective order or similar confidentiality treatment for such information.\n3\n4.\nAgreement Applicable to Information Acquired Businesses. For the\navoidance of doubt, I acknowledge that if I was employed by a predecessor company or\nbusiness unit of Frontier (i.e., a company or business unit that was subsequently acquired\nby Frontier), my representations, warranties, obligations and undertakings under this\nAgreement shall apply as if such predecessor company or business unit (including any\npredecessors thereof) had at all times been a part of Frontier.\n5.\nInterpretation and Enforcement. I agree that the provisions of this\nAgreement are reasonable. If a court determines, however, that any provision of this\nAgreement is unreasonable, then the parties hereto agree that the provisions of this\nAgreement should be interpreted and enforced to the maximum extent which such court\ndeems reasonable. If any provision of this Agreement is otherwise inoperative or\nunenforceable for any reason, such circumstance shall not have the effect of rendering the\nprovision in question inoperative or unenforceable in any other circumstance, or of\nrendering any other provision of this Agreement inoperative or unenforceable to any extent\nwhatsoever.\n6.\nSuccessors and Assigns. This Agreement shall be binding upon me and my\nheirs and legal representatives and my permitted assigns. I understand and agree that I\ncannot assign my obligations and undertakings under this Agreement to any other person\nor entity under any circumstances whatsoever, without the prior consent of Frontier, but\nthat Frontier may assign this Agreement to any subsidiary, affiliate or successor.\n7.\nAt-Will Employment; No Termination. I understand that this Agreement\ndoes not constitute a contract of employment for any specific term and that Frontier or I\nmay terminate my employment at any time, for any or no reason, unless (i) a specific term\nof employment has been agreed to in a separate, written agreement signed by an authorized\nofficer of Frontier or (ii) the terms and conditions of my employment are governed by a\nvalid collective bargaining agreement. I acknowledge and agree that I may not terminate\nthis Agreement for any reason, and that my obligations and undertakings under this\nAgreement will continue to apply regardless of whether I transfer at some time from one\nsubsidiary, division or affiliate of Frontier to another, and even after my employment with\nFrontier ends for any reason.\n8.\nApplicable Law. This Agreement shall be construed and enforced in\naccordance with, and shall be governed by, the laws of the state of Connecticut applicable\nto contracts executed in and to be fully performed in such state, or any other state law as\napplicable by the circumstances.\nBy my signature below, I acknowledge that I have read and understand this Non-\nDisclosure Agreement and that I voluntarily accept its terms. I understand and agree that\nan electronic or digital signature is equivalent to a handwritten signature.\nKenneth W. Arndt\nDate\n4	ADDENDUM A to Offer Letter for Ken W. Arndt\nNon-Disclosure Agreement\nBy my signature on the offer of conditional employment to which this Addendum A is\nattached, as well as my signature below, I acknowledge and agree to the following in\nconsideration for my new employment and related compensation by Frontier\nCommunications or one of its subsidiaries, affiliates or divisions (collectively, “Frontier”):\n1.\nNon-Disclosure. I understand that during my employment with Frontier\n(including, for purposes of this Agreement, any predecessor companies or business units\nthat have been acquired by Frontier), I will have access to Proprietary Information (as\ndefined in Paragraph 3 below) and Frontier Materials (as defined in Paragraph 2 below). I\nagree to hold all Proprietary Information and Frontier Materials in strict confidence and in\ncompliance with Frontier’s corporate policies. I will not take, use, copy, disclose, publish,\nprovide access to or summarize any Proprietary Information or Frontier Materials except to\nthe extent necessary to carry out my duties and responsibilities as an employee of Frontier.\nI also agree that I will not use any confidential information of any prior employer in\nconnection with performing my duties at Frontier.\n2.\nFrontier Materials. All files, records, proposals, specifications or other\ndocuments, and all computer software, software applications, files, databases and the like\nrelating to Frontier ’s business or which contain Proprietary Information, whether prepared\nby me or otherwise coming into my possession (“Frontier Materials”), shall remain the\nexclusive property and intellectual property of Frontier. Upon the termination of my\nemployment for any reason, or upon the request of Frontier if sooner, I will promptly\ndeliver to Frontier all originals and copies of Frontier Materials in my possession, custody\nor control (wherever located, including my home or laptop computer), and shall not retain\nany copies of the Frontier Materials in any form or medium whatsoever.\n3.\nProprietary Information Definition. For the purposes of this Agreement,\nthe term “Proprietary Information” shall include all trade secrets, know-how and other\ninformation in any form or medium that relates to the past, current or future business of\nFrontier or its subsidiaries, affiliates or divisions (or is given to Frontier in confidence by a\nthird party) and is not generally available to the public or generally known in the industries\nin which Frontier does business or may become engaged, including, without limitation,\nany formulas, devices, inventions, methods, techniques or processes, compilations of\ninformation, records and specifications and any other information of Frontier relating to its\nservices and products (offered or to be offered), research, development, marketing, pricing,\nclients and prospective clients, business methods, strategies, financial condition,\ntransactions, government and regulatory activities and approvals, plans, personnel\ninformation and capabilities, policies or prospects. “Proprietary Information” shall not\ninclude any portions of the foregoing that I can demonstrate by sufficient evidence are (i)\nmade legitimately available to me by a third party without breach of any obligation of\nconfidence to any person or (ii) required by law to be disclosed by me, provided that I\nmust give Frontier prompt written notice of any such requirement, disclose no more\ninformation than is so required, and cooperate fully with all efforts by Frontier to obtain a\nprotective order or similar confidentiality treatment for such information.\n3\n4.\nAgreement Applicable to Information Acquired Businesses. For the\navoidance of doubt, I acknowledge that if I was employed by a predecessor company or\nbusiness unit of Frontier (i.e ., a company or business unit that was subsequently acquired\nby Frontier), my representations, warranties, obligations and undertakings under this\nAgreement shall apply as if such predecessor company or business unit (including any\npredecessors thereof) had at all times been a part of Frontier.\n5.\nInterpretation and Enforcement. I agree that the provisions of this\nAgreement are reasonable. If a court determines, however, that any provision of this\nAgreement is unreasonable, then the parties hereto agree that the provisions of this\nAgreement should be interpreted and enforced to the maximum extent which such court\ndeems reasonable. If any provision of this Agreement is otherwise inoperative or\nunenforceable for any reason, such circumstance shall not have the effect of rendering the\nprovision in question inoperative or unenforceable in any other circumstance, or of\nrendering any other provision of this Agreement inoperative or unenforceable to any extent\nwhatsoever.\n6.\nSuccessors and Assigns. This Agreement shall be binding upon me and my\nheirs and legal representatives and my permitted assigns. I understand and agree that I\ncannot assign my obligations and undertakings under this Agreement to any other person\nor entity under any circumstances whatsoever, without the prior consent of Frontier, but\nthat Frontier may assign this Agreement to any subsidiary, affiliate or successor.\n7.\nAt-Will Employment; No Termination. I understand that this Agreement\ndoes not constitute a contract of employment for any specific term and that Frontier or I\nmay terminate my employment at any time, for any or no reason, unless (i) a specific term\nof employment has been agreed to in a separate, written agreement signed by an authorized\nofficer of Frontier or (ii) the terms and conditions of my employment are governed by a\nvalid collective bargaining agreement. I acknowledge and agree that I may not terminate\nthis Agreement for any reason, and that my obligations and undertakings under this\nAgreement will continue to apply regardless of whether I transfer at some time from one\nsubsidiary, division or affiliate of Frontier to another, and even after my employment with\nFrontier ends for any reason.\n8.\nApplicable Law. This Agreement shall be construed and enforced in\naccordance with, and shall be governed by, the laws of the state of Connecticut applicable\nto contracts executed in and to be fully performed in such state, or any other state law as\napplicable by the circumstances.\nBy my signature below, I acknowledge that I have read and understand this Non-\nDisclosure Agreement and that I voluntarily accept its terms. I understand and agree that\nan electronic or digital signature is equivalent to a handwritten signature.\n__________________________\n_____________________\nKenneth W. Arndt\nDate\n4
864dc16685f9fd8da9be283e6ba61a0b.pdf	jurisdiction	Exhibit C\nCONFIDENTIALITY/NON-COMPETITION/NON-SOLICITATION AGREEMENT\nDuring the course of your employment with Laboratory Corporation of America Holdings (“LabCorp”) or its subsidiaries, divisions,\nor affiliates, you will have access to, or will acquire, highly confidential information and trade secrets concerning LabCorp’s and the\nEmployer Company’s business, including, but not limited to, customer lists, pricing, methods of pricing, marketing practices,\nadvertising strategy, methods of operation and the needs and requirements of Employer Company’s and/or LabCorp’s customers. In\naddition, you will receive from LabCorp or Employer Company and/or be exposed to LabCorp’s or the Employer Company’s\nvaluable technical and marketing information that will materially aid you in the performance of your duties on behalf of the\nEmployer Company, and assist you and/or the Employer Company in furthering the Employer Company’s business interests,\nincluding establishing and retaining the Employer Company’s customers. The support furnished to you by the Employer Company\nwill enable you to increase the value of the Employer Company’s goodwill with the Employer Company’s customers, which is a\nvaluable asset of the Employer Company.\nAs indicated by the foregoing, the services you will be performing for the Employer Company will be of a special, unique and\nextraordinary nature. Accordingly, in consideration of LabCorp extending to you, as applicable, certain incentive compensation, as\nset forth in the Agreement(s) to which this Exhibit is made a part thereof and which governs the grant of said benefits, any and all of\nwhich benefits otherwise would not be provided to you absent your agreement to be bound by the terms of this\nConfidentiality/Non-Competition/Non-Solicitation Agreement (“Restrictive Covenant Agreement”), you agree that:\n1. Property Rights and Workproduct. All ideas, inventions, discoveries, computer programs, developments, standard\noperating procedures, designs, improvements, formulae, processes, techniques, programs, know-how, data, business plans,\nreports, presentations, or any other work product of possible technical or commercial importance relating to the Employer\nCompany’s business or anticipated business (hereafter collectively referred to as “Work Product”) created or developed by\nyou as part of your employment with the Employer Company shall be deemed to be work made for hire and that the\nEmployer Company shall be the sole owner of all rights, including copyright, in and to the Work Product. If such Work\nProduct, or any part thereof, does not qualify as work made for hire, you agree to assign, and hereby assign, to the Employer\nCompany for the full term of the copyright and all extensions thereof all of your right, title and interest in and to the Work\nProduct. The Employer Company may, at its own expense, prepare and process applications for copyrights, trademarks,\nservice marks, or letter patents, or may take other actions that it deems necessary or appropriate to protect itself with respect\nto the aforementioned items. You shall cooperate with the Employer Company in enforcing and protecting its rights by\nexecuting such applications or other documentation prepared for the protection\n1\nof such interests and assigning them to the Employer Company, as well as executing all papers pertaining to said inventions,\ndocuments, marks, improvements, discoveries, trade secrets, applications and protective actions.\n2. Confidentiality. You agree that during the term of your employment and for any time after your termination, you shall not,\nwithout the prior written consent of the Employer Company, divulge to any third party or use for your own benefit, or for\nany purpose other than the exclusive benefit of the Employer Company, any Confidential Information of the Employer\nCompany, LabCorp and its subsidiaries, divisions, or affiliates. In this Restrictive Covenant Agreement, Confidential\nInformation shall mean information that concerns the Employer Company’s, LabCorp’s and its subsidiaries’, divisions’, or\naffiliates’ prices, pricing methods, costs, profits, profit margins, suppliers, methods, procedures, processes or combinations\nor applications thereof developed in, by, or for the Employer Company’s business, research and development projects, data,\nbusiness strategies, marketing strategies, sales techniques, customer lists, customer information, financial information, or\nany other information concerning the Employer Company or its business that is not readily and easily available to the public\nor to those persons in the same business, trade, or industry of the Employer Company. The term “customer information” as\nused in this Restrictive Covenant Agreement shall mean information that concerns the course of dealing between the\nEmployer Company and its customers or potential customers solicited by the Employer Company, customer preferences,\nparticular contracts or locations of customers or potential customers, negotiations with customers, and any other information\nconcerning customers or potential customers obtained by the Employer Company that is not readily and easily available to\nthe public or to those in the business, trade, or industry of the Employer Company. Your obligation not to disclose\nConfidential Information does not prohibit you from (a) disclosing the information to a government agency if you are\nrequired to produce the information pursuant to a subpoena, court order, administrative order or other legal process,\n(b) discussing terms and conditions of employment or engaging in other activities protected by the National Labor Relations\nAct, (c) communicating with the Securities and Exchange Commission about securities law violations, or\n(d) communicating with any other government entity or agency if such communication is to report a violation of applicable\nlaw. However, you shall notify the Employer Company in writing within three (3) calendar days of the receipt of any\nsubpoena, court order, administrative order or other legal process requiring disclosure of Confidential Information and shall\nprovide the Employer Company with a copy of said subpoena, court order, administrative order or other legal process.\n2\n3. Non-Solicitation of LabCorp Employees. During the term of your employment and for a period of twelve (12) months\nfollowing the term of your employment, you shall not, directly or indirectly through a subordinate, co-worker, peer, or any\nother person or entity contact, solicit, encourage or induce any officer, director or employee of LabCorp or its subsidiaries\nand affiliates to work for or provide services to you and/or any other person or entity that either (i) directly provides\nproducts or services that compete with the products or services provided by the Employer Company in a geographic market\nserviced by the Employer Company or (ii) supplies, services, advises or consults with a person, trade or business that\nproducts or services that compete with the products or services provided by the Employer Company in a geographic market\nserviced by the Employer Company.\n4. Non-Solicitation of Customers. During your employment and for a period of twelve (12) months following the voluntary\nor involuntary termination of your employment, you will not either directly or indirectly through a subordinate, co-worker,\npeer or other person or entity, call upon, contact, or solicit or attempt to call upon, contact or solicit any customer or\ncustomer prospect of the Employer Company, with a view toward the sale or providing of any service or product\ncompetitive with the products and services offered by the Employer Company; provided, however, the restrictions set forth\nin Paragraph 4 shall apply only to customers or prospects of the Employer Company, or representatives of the same, with\nwhich you had contact during the last twenty-four (24) months of your employment with the Employer Company. The\nparties agree and affirm that their intention with respect to Paragraph 4 is that your activities be limited only for a twelve\n(12) month period after termination of your employment with the Employer Company for any reason. The provisions\ncalling for a “look back” of twenty-four (24) calendar months prior to the termination of employment are intended solely as\na means of identifying the customers and potential customers to which such restrictions apply and are not intended to nor\nshall they, under any circumstances, be construed to define the length or term of any such restriction.\n5. Noncompetition. During your employment and for a period of twelve (12) months following your voluntary or involuntary\ntermination of employment, you shall not become an owner in, shareholder with more than a 2% equity interest in, investor\nin, or an employee, contractor, consultant, advisor, representative, officer, director, or agent of, a trade or business that\noffers products and services that are the same or substantially similar to the products and services provided by the Employer\nCompany in any geographic market in which the Employer Company conducts business (“Competitor”); provided,\nhowever, that the duties and responsibilities of said employment or engagement as an owner in, shareholder with more than\n2% equity interest in, investor in, employee, contractor, consultant, advisor, representative, officer, director or agent are\n3\n(i) the same, similar, or substantially related to your current duties and responsibilities or duties or responsibilities\nperformed by you while employed by the Employer Company at any time during a six (6) month period prior to your date\nof termination of employment and (ii) related to or concerning the Competitor’s business activities in the Restricted\nTerritory. The parties agree and affirm that their intention with respect to Paragraph 5 is that your activities shall be limited\nonly for the twelve (12) month period after termination of employment for any reason. The provisions calling for a “look\nback” of six (6) calendar months prior to the date of termination of employment are intended solely as a means of\nidentifying the duties and responsibilities that will define the restricted activities covered by Paragraph 5 and are not\nintended to nor shall they, under any circumstances, be construed to define the length or term of any such restriction. For\npurposes of Paragraph 5, the term “Restricted Territory” means the geographic area that is part of your current duties and\nresponsibilities or the geographic area that was part of your duties and responsibilities within a period of six (6) month\nperiod prior to the date of your termination of employment. If a court of competent jurisdiction determines that the\nRestricted Territory as defined herein is too restrictive, then the parties agree that said court may reduce or limit the\nRestricted Territory to the largest acceptable area so as to enable the enforcement of Paragraph 5.\n6. Return of Confidential Information. At any time upon the request of the Employer Company or upon your termination of\nyour employment, you shall return to the Employer Company any and all Employer Company property including but not\nlimited to laptops, phones, smart phones and documents or materials in your possession, custody and control that contain\nConfidential Information. You also agree that upon termination of employment, you shall destroy any Confidential\nInformation stored on your personal computer or other data storage device. Along with the return of said documents and\nmaterials, you shall provide the Employer Company (upon the Employer Company’s request) with a sworn or written\nstatement indicating that you do not have possession, custody and control of any of the Employer Company’s Confidential\nInformation and have destroyed all of the Employer Company’s data electronically stored on your personal computer or\nother data storage device.\n7. Notice. Notice shall be effective only if it is made in writing and actually or constructively received by the individuals\nbelow. To be effective, any notice required under this Restrictive Covenant Agreement must be sent by nationally\nrecognized express delivery courier or by certified mail, return receipt requested, to the person(s) and address(es) listed\nbelow.\nSenior Vice President, Global General Counsel\nLaboratory Corporation of America Holdings\n531 South Spring Street\nBurlington, North Carolina 27215\n4\nand, if to you, notice shall be sent to your last known mailing address on record at the Employer Company. You have an obligation to\nensure that the Employer Company’s records contain your most recent address.\n8. Breach/Available Remedies.\na. Except as otherwise provided in this subparagraph, if any provision of this Restrictive Covenant Agreement shall be\ndetermined to be invalid or unenforceable by a court of competent jurisdiction, that part shall be ineffective to the\nextent of such invalidity or unenforceability only, without in any way affecting the remaining parts of said provision or\nthe remaining provisions of this Restrictive Covenant Agreement; provided, that if any provision contained in this\nRestrictive Covenant Agreement shall be adjudicated to be invalid or unenforceable because such provision is held to\nbe excessively broad as to duration, geographic scope, activity or subject, the parties agree that the said provision shall\nbe limited and reduced to the maximum extent compatible with the applicable laws of such jurisdiction, and such\namendment only to apply with respect to the operation of such provision in the applicable jurisdiction in which the\nadjudication is made.\nb. You agree that as part of this Restrictive Covenant Agreement, you will have access to the Employer Company’s\nConfidential Information, personnel, and existing and potential customers of the Employer Company. You further\nagree that the Employer Company maintains a competitive advantage over other persons or entities in the trade or\nbusiness of providing commercial medical laboratory testing services as a result of the Employer Company’s\nConfidential Information, personnel, and existing and potential customer contacts. You further agree that the\nEmployer Company will be placed at a competitive disadvantage in the event that you breach this Restrictive\nCovenant Agreement and that damages would not be an adequate or reasonable remedy in the event of such breach.\nAccordingly, you stipulate that in the event that you breach one or more of the provisions set forth in this Restrictive\nCovenant Agreement, the Employer Company will be entitled to an injunction restraining you from violating the terms\nof those paragraphs. Nothing herein shall be construed as prohibiting the Employer Company from pursuing any other\nremedy available for such breach or prospective breach.\n9. Miscellaneous.\na. Absent any other agreement to the contrary nothing herein shall be construed as giving you the right to continued\nservice or employment relationship with the Employer Company. This Agreement does not alter\n5\nor amend in any way the Employer Company’s right to terminate the employment relationship in accordance with any\noffer letter, employment contract or applicable law.\nb. You represent and warrant that you are not a party to any contract, agreement or understanding that prevents or\nprohibits you from entering into and fully performing under this Restrictive Covenant Agreement.\nc. In the event a court of law declares any provision of this Restrictive Covenant Agreement to be null and void, it is\nunderstood and agreed by you and the Employer Company that such clause shall be severed from this Restrictive\nCovenant Agreement and that the remaining provisions of this Restrictive Covenant Agreement shall continue to be\nbinding on you.\nd. It is understood and agreed by you and Laboratory Corporation of America Holdings (“LabCorp”) that this\nConfidentiality/Non-Competition/Non-Solicitation Agreement constitutes the agreement in its entirety and supersedes\nany previous Confidentiality/Non-Competition/Non-Solicitation Agreement previously executed by you as part of an\nEquity Award Agreement with LabCorp. This Confidentiality/Non-Competition/Non-Solicitation Agreement replaces\nany other non-compete, non-solicitation and confidentiality agreement which you may have previously executed in\nfavor of LabCorp or one of its subsidiary companies incorporated within the United States. This\nConfidentiality/Non-Competition/Non-Solicitation Agreement shall not replace, amend, restrict, otherwise modify or\nsupersede any employment contract or agreement between you and a foreign subsidiary of LabCorp and shall not\namend, alter or affect any non-compete, non-solicitation or confidentiality agreement executed by you and LabCorp or\nan Employer Company in connection with a merger or acquisition agreement of a business entity with whom you were\npreviously employed or affiliated, including, but not limited to, an ownership or investment interest in said entity.\ne. For purposes of this Restrictive Covenant Agreement, the Employer Company shall mean Laboratory Corporation of\nAmerica Holdings or its subsidiary and affiliated companies with whom you are employed at the commencement of\nyour employment, as well as any subsequent parent, subsidiary or affiliated company that becomes the employing\nentity in the event of a transfer, promotion, assignment, reassignment or corporate restructuring.\nf. As used herein, “affiliate” shall mean a current or future company or other business entity that, directly or indirectly, is\ncontrolled by, controls or is under common control with Laboratory Corporation of America Holdings. For the\npurposes of the preceding sentence, the meaning of the word “control” shall include, but not necessarily be limited to,\nownership of more than fifty percent (50%) of the voting shares or other interest of the Employer Company or other\nbusiness entity.\n6\ng. This Restrictive Covenant Agreement shall be binding upon you and shall inure to the benefit of the parties and their\nrespective personal representatives, heirs, affiliates, successors, and assigns. LabCorp may at its sole discretion assign\nits rights under this Restrictive Covenant Agreement.\nh. You affirm by signing this Restrictive Covenant Agreement that you have completely read this entire Restrictive\nCovenant Agreement and understand the terms and conditions included within this Restrictive Covenant Agreement.\nYou also agree that this Restrictive Covenant Agreement may not be modified or altered in any respect except in\nwriting, signed by you and LabCorp.\ni. This Restrictive Covenant Agreement shall be deemed to have been entered into in the State of North Carolina and\nshall be construed in accordance with and governed by the laws of North Carolina, to the exclusion of the laws of any\nother forum including but not limited to the laws of the State of California. You agree, acknowledge and recognize\nthat by virtue of your employment with the Employer Company, either a North Carolina corporation or a subsidiary of\na North Carolina corporation, with its principal place of business in North Carolina, and your own contacts and\nbusiness dealings with LabCorp and the Employer Company in North Carolina, North Carolina has a substantial\nrelationship to this Restrictive Covenant Agreement and a materially greater interest in applying its laws, over and to\nthe exclusion of the laws of any other forum, to the resolution of any dispute arising out of or relating to this\nRestrictive Covenant Agreement.\nj. Any action, special proceeding or other proceeding, including without limitation any request for temporary,\npreliminary, or permanent injunctive relief with respect to this Restrictive Covenant Agreement shall be brought\nexclusively in the federal or state courts of the State of North Carolina. You and the Employer Company irrevocably\nconsent to the jurisdiction of the Federal and State courts of North Carolina and you hereby consent and submit to\npersonal jurisdiction in the State of North Carolina. You and the Employer Company irrevocably waive any\nobjection, including an objection or defense based on lack of personal jurisdiction, improper venue or forum\nnon-conveniens which either may now or hereafter have to the bringing of any action or proceeding in connection\nwith this Restrictive Covenant Agreement. You acknowledge and recognize that in the event that you breach this\nRestrictive Covenant Agreement, the Employer Company may initiate a lawsuit against you in North Carolina, that\nyou waive your right to have that lawsuit be brought in a court located closer to where you may reside, and that you\n7\nwill be required to travel to and defend yourself in North Carolina. You likewise agree that to the extent you\ninstitute any action arising out of or relating to this Restrictive Covenant Agreement, it shall be brought in North\nCarolina and doing so does not present any undue burden or inconvenience to you.\nk. You shall at all times abide by such laws and regulations, including but not limited to such laws which relate to the\nimproper inducement for referrals of items or Services reimbursable by the Federal health care programs 42 U.S.C . §\n1320a-7b(b) (the “anti-kickback statute”). You acknowledge that you are (i) aware that the United States securities\nlaws prohibit any person who has material nonpublic information about the Employer Company from purchasing or\nselling securities of such Employer Company, or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities and\n(ii) familiar with the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder and agrees\nthat it will neither use, nor cause any third party to use, any Information in contravention of such Act or any such rules\nand regulations, including Rules 10b-5 and 14e-3 .\nl. Except as stated otherwise herein, this Restrictive Covenant Agreement contains the entire agreement between the\nparties hereto with respect to the subject matter hereof, and there are no representations, warranties, covenants,\nconditions, understandings or agreements other than those expressly set forth herein.\nIN WITNESS WHEREOF, the undersigned have duly executed and delivered this Agreement, or have caused this Agreement to be\nduly executed and delivered on their behalf.\nLABORATORY CORPORATION OF\nAMERICA HOLDINGS\nName:\nTitle:\nEXECUTIVE\nAdam H. Schechter\n8	Exhibit C\nCONFIDENTIALITY/NON-COMPETITION/NON-SOLICITATION AG REEMENT\nDuring the course of your employment with Laboratory Corporation of America Holdings (”LabC orp") or its subsidiaries, divisions,\nor affiliates, you will have access to, or will acquire, highly confidential information and trade secrets concerning LabC orp’ s and the\nEmployer Company' s business, including, but not limited to, customer lists, pricing, methods of pricing, marketing practices,\nadvertising strategy, methods of operation and the needs and requirements of Employer Company' s and/or LabC orp’ s customers. In\naddition, you will receive from LabC orp or Employer Company and/or be exposed to LabC orp's or the Employer Company' s\nvaluable technical and marketing information that will materially aid you in the performance of your duties on behalf of the\nEmployer Company, and assist you and/or the Employer Company in furthering the Employer Company' s business interests,\nincluding establishing and retaining the Employer Company' s customers. The support furnished to you by the Employer Company\nwill enable you to increase the value of the Employer Company' s goodwill with the Employer Company' s customers, which is a\nvaluable asset of the Employer Company.\nAs indicated by the foregoing, the services you will be performing for the Employer Company will be of a special, unique and\nextraordinary nature. Accordingly, in consideration of LabC orp extending to you, as applicable, certain incentive compensation, as\nset forth in the Agreement(s) to which this Exhibit is made a part thereof and which governs the grant of said benefits, any and all of\nwhich benefits otherwise would not be provided to you absent your agreement to be bound by the terms of this\nConfidentiality/Non-Competition/Non- Solicitation A greement (”Restrictive Covenant A greement"), you agree that:\n1. Property Rights and Workproduct. All ideas, inventions, discoveries, computer programs, developments, standard\noperating procedures, designs, improvements, formulae, processes, techniques, programs, know-how, data, business plans,\nreports, presentations, or any other work product of possible technical or commercial importance relating to the Employer\nCompany' s business or anticipated business (hereafter collectively referred to as ”W ork Product") created or developed by\nyou as part of your employment with the Employer Company shall be deemed to be work made for hire and that the\nEmployer Company shall be the sole owner of all rights, including copyright, in and to the Work Product. If such Work\nProduct, or any part thereof, does not qualify as work made for hire, you agree to assign, and hereby assign, to the Employer\nCompany for the full term of the copyright and all extensions thereof all of your right, title and interest in and to the Work\nProduct. The Employer Company may, at its own expense, prepare and process applications for copyrights, trademarks,\nservice marks, or letter patents, or may take other actions that it deems necessary or appropriate to protect itself with respect\nto the aforementioned items. Y ou shall cooperate with the Employer Company in enforcing and protecting its rights by\nexecuting such applications or other documentation prepared for the protection\n \nof such interests and assigning them to the Employer Company, as well as executing all papers pertaining to said inventions,\ndocuments, marks, improvements, discoveries, trade secrets, applications and protective actions.\nConfidentiality. Y ou agree that during the term of your employment and for any time after your termination, you shall not,\nwithout the prior written consent of the Employer Company, divulge to any third party or use for your own benefit, or for\nany purpose other than the exclusive benefit of the Employer Company, any Confidential Information of the Employer\nCompany, LabCorp and its subsidiaries, divisions, or affiliates. In this Restrictive Covenant Agreement, Confidential\nInformation shall mean information that concerns the Employer Company' s, LabCorp’ s and its subsidiaries', divisions', or\naffiliates’ prices, pricing methods, costs, profits, profit margins, suppliers, methods, procedures, processes or combinations\nor applications thereof developed in, by, or for the Employer Company' s business, research and development projects, data,\nbusiness strategies, marketing strategies, sales techniques, customer lists, customer information, financial information, or\nany other information concerning the Employer Company or its business that is not readily and easily available to the public\nor to those persons in the same business, trade, or industry of the Employer Company. The term ”customer information" as\nused in this Restrictive Covenant Agreement shall mean information that concerns the course of dealing between the\nEmployer Company and its customers or potential customers solicited by the Employer Company, customer preferences,\nparticular contracts or locations of customers or potential customers, negotiations with customers, and any other information\nconcerning customers or potential customers obtained by the Employer Company that is not readily and easily available to\nthe public or to those in the business, trade, or industry of the Employer Company. Y our obligation not to disclose\nConfidential Information does not prohibit you from (a) disclosing the information to a government agency if you are\nrequired to produce the information pursuant to a subpoena, court order, administrative order or other legal process,\n(b) discussing terms and conditions of employment or engaging in other activities protected by the National Labor Relations\nAct, (c) communicating with the Securities and Exchange Commission about securities law violations, or\n(d) communicating with any other government entity or agency if such communication is to report a violation of applicable\nlaw. However, you shall notify the Employer Company in writing within three (3) calendar days of the receipt of any\nsubpoena, court order, administrative order or other legal process requiring disclosure of Confidential Information and shall\nprovide the Employer Company with a copy of said subpoena, court order, administrative order or other legal process.\n \nNon-Solicitation of LabC orp Employees. During the term of your employment and for a period of twelve (12) months\nfollowing the term of your employment, you shall not, directly or indirectly through a subordinate, co-worker, peer, or any\nother person or entity contact, solicit, encourage or induce any officer, director or employee of LabC orp or its subsidiaries\nand affiliates to work for or provide services to you and/or any other person or entity that either (i) directly provides\nproducts or services that compete with the products or services provided by the Employer Company in a geographic market\nserviced by the Employer Company or (ii) supplies, services, advises or consults with a person, trade or business that\nproducts or services that compete with the products or services provided by the Employer Company in a geographic market\nserviced by the Employer Company.\nNon-Solicitation of Customers. During your employment and for a period of twelve (12) months following the voluntary\nor involuntary termination of your employment, you will not either directly or indirectly through a subordinate, co-worker,\npeer or other person or entity, call upon, contact, or solicit or attempt to call upon, contact or solicit any customer or\ncustomer prospect of the Employer Company, with a view toward the sale or providing of any service or product\ncompetitive with the products and services offered by the Employer Company; provided, however, the restrictions set forth\nin Paragraph 4 shall apply only to customers or prospects of the Employer Company, or representatives of the same, with\nwhich you had contact during the last twenty-four (24) months of your employment with the Employer Company. The\nparties agree and affirm that their intention with respect to Paragraph 4 is that your activities be limited only for a twelve\n(12) month period after termination of your employment with the Employer Company for any reason. The provisions\ncalling for a ”look back” of twenty-four (24) calendar months prior to the termination of employment are intended solely as\na means of identifying the customers and potential customers to which such restrictions apply and are not intended to nor\nshall they, under any circumstances, be construed to define the length or term of any such restriction.\nNoncompetition. During your employment and for a period of twelve (12) months following your voluntary or involuntary\ntermination of employment, you shall not become an owner in, shareholder with more than a 2% equity interest in, investor\nin, or an employee, contractor, consultant, advisor, representative, officer, director, or agent of, a trade or business that\noffers products and services that are the same or substantially similar to the products and services provided by the Employer\nCompany in any geographic market in which the Employer Company conducts business (”Competitor”); provided,\nhowever, that the duties and responsibilities of said employment or engagement as an owner in, shareholder with more than\n2% equity interest in, investor in, employee, contractor, consultant, advisor, representative, officer, director or agent are\n \n(i) the same, similar, or substantially related to your current duties and responsibilities or duties or responsibilities\nperformed by you while employed by the Employer Company at any time during a six (6) month period prior to your date\nof termination of employment and (ii) related to or concerning the Competitor“ s business activities in the Restricted\nTerritory. The parties agree and affirm that their intention with respect to Paragraph 5 is that your activities shall be limited\nonly for the twelve (12) month period after termination of employment for any reason. The provisions calling for a ”look\nback” of six (6) calendar months prior to the date of termination of employment are intended solely as a means of\nidentifying the duties and responsibilities that will define the restricted activities covered by Paragraph 5 and are not\nintended to nor shall they, under any circumstances, be construed to define the length or term of any such restriction. For\npurposes of Paragraph 5, the term ”Restricted Territory" means the geographic area that is part of your current duties and\nresponsibilities or the geographic area that was part of your duties and responsibilities within a period of six (6) month\nperiod prior to the date of your termination of employment. If a court of competent jurisdiction determines that the\nRestricted Territory as defined herein is too restrictive, then the parties agree that said court may reduce or limit the\nRestricted Territory to the largest acceptable area so as to enable the enforcement of Paragraph 5.\n6. Return of Confidential Information. At any time upon the request of the Employer Company or upon your termination of\nyour employment, you shall return to the Employer Company any and all Employer Company property including but not\nlimited to laptops, phones, smart phones and documents or materials in your possession, custody and control that contain\nConfidential Information. Y ou also agree that upon termination of employment, you shall destroy any Confidential\nInformation stored on your personal computer or other data storage device. Along with the return of said documents and\nmaterials, you shall provide the Employer Company (upon the Employer Company' s request) with a sworn or written\nstatement indicating that you do not have possession, custody and control of any of the Employer Company' s Confidential\nInformation and have destroyed all of the Employer Company' s data electronically stored on your personal computer or\nother data storage device.\n7. Notice. Notice shall be effective only if it is made in writing and actually or constructively received by the individuals\nbelow. To be effective, any notice required under this Restrictive Covenant Agreement must be sent by nationally\nrecognized express delivery courier or by certified mail, return receipt requested, to the person(s) and address(es) listed\nbelow.\nSenior Vice President, Global General Counsel\nLaboratory Corporation of America Holdings\n531 South Spring Street\nBurlington, North Carolina 27215\n \nand, if to you, notice shall be sent to your last known mailing address on record at the Employer Company. Y ou have an obligation to\nensure that the Employer Company' s records contain your most recent address.\n8. Breach/Available Remedies.\na. Except as otherwise provided in this subparagraph, if any provision of this Restrictive Covenant Agreement shall be\ndetermined to be invalid or unenforceable by a court of competent jurisdiction, that part shall be ineffective to the\nextent of such invalidity or unenforceability only, without in any way affecting the remaining parts of said provision or\nthe remaining provisions of this Restrictive Covenant Agreement; provided, that if any provision contained in this\nRestrictive Covenant Agreement shall be adjudicated to be invalid or unenforceable because such provision is held to\nbe excessively broad as to duration, geographic scope, activity or subject, the parties agree that the said provision shall\nbe limited and reduced to the maximum extent compatible with the applicable laws of such jurisdiction, and such\namendment only to apply with respect to the operation of such provision in the applicable jurisdiction in which the\nadjudication is made.\nb. Y ou agree that as part of this Restrictive Covenant Agreement, you will have access to the Employer Company' s\nConfidential Information, personnel, and existing and potential customers of the Employer Company. Y ou further\nagree that the Employer Company maintains a competitive advantage over other persons or entities in the trade or\nbusiness of providing commercial medical laboratory testing services as a result of the Employer Company's\nConfidential Information, personnel, and existing and potential customer contacts. Y ou further agree that the\nEmployer Company will be placed at a competitive disadvantage in the event that you breach this Restrictive\nCovenant Agreement and that damages would not be an adequate or reasonable remedy in the event of such breach.\nAccordingly, you stipulate that in the event that you breach one or more of the provisions set forth in this Restrictive\nCovenant Agreement, the Employer Company will be entitled to an injunction restraining you from violating the terms\nof those paragraphs. Nothing herein shall be construed as prohibiting the Employer Company from pursuing any other\nremedy available for such breach or prospective breach.\n9. Miscellaneous.\na. Absent any other agreement to the contrary nothing herein shall be construed as giving you the right to continued\nservice or employment relationship with the Employer Company. This Agreement does not alter\n \nor amend in any way the Employer Company' s right to terminate the employment relationship in accordance with any\noffer letter, employment contract or applicable law.\nY ou represent and warrant that you are not a party to any contract, agreement or understanding that prevents or\nprohibits you from entering into and fully performing under this Restrictive Covenant A greement.\nIn the event a court of law declares any provision of this Restrictive Covenant Agreement to be null and void, it is\nunderstood and agreed by you and the Employer Company that such clause shall be severed from this Restrictive\nCovenant Agreement and that the remaining provisions of this Restrictive Covenant Agreement shall continue to be\nbinding on you.\nIt is understood and agreed by you and Laboratory Corporation of America Holdings (”LabC orp”) that this\nConfidentiality/Non-Competition/Non-Solicitation A greement constitutes the agreement in its entirety and supersedes\nany previous Confidentiality/Non-Competition/Non-Solicitation Agreement previously executed by you as part of an\nEquity Award A greement with LabC orp. This Confidentiality/Non-Competition/Non- Solicitation A greement replaces\nany other non-compete, non- solicitation and confidentiality agreement which you may have previously executed in\nfavor of LabC orp or one of its subsidiary companies incorporated within the United States. This\nConfidentiality/Non-Competition/Non-Solicitation A greement shall not replace, amend, restrict, otherwise modify or\nsupersede any employment contract or agreement between you and a foreign subsidiary of LabCorp and shall not\namend, alter or affect any non-compete, non- solicitation or confidentiality agreement executed by you and LabC orp or\nan Employer Company in connection with a merger or acquisition agreement of a business entity with whom you were\npreviously employed or affiliated, including, but not limited to, an ownership or investment interest in said entity.\nFor purposes of this Restrictive Covenant A greement, the Employer Company shall mean Laboratory Corporation of\nAmerica Holdings or its subsidiary and affiliated companies with whom you are employed at the commencement of\nyour employment, as well as any subsequent parent, subsidiary or affiliated company that becomes the employing\nentity in the event of a transfer, promotion, assignment, reassignment or corporate restructuring.\nAs used herein, ”affiliate" shall mean a current or future company or other business entity that, directly or indirectly, is\ncontrolled by, controls or is under common control with Laboratory Corporation of America Holdings. For the\npurposes of the preceding sentence, the meaning of the word ”control” shall include, but not necessarily be limited to,\nownership of more than fifty percent (50%) of the voting shares or other interest of the Employer Company or other\nbusiness entity.\n \nThis Restrictive Covenant Agreement shall be binding upon you and shall inure to the benefit of the parties and their\nrespective personal representatives, heirs, affiliates, successors, and assigns. LabC orp may at its sole discretion assign\nits rights under this Restrictive Covenant Agreement.\nY ou affirm by signing this Restrictive Covenant Agreement that you have completely read this entire Restrictive\nCovenant Agreement and understand the terms and conditions included within this Restrictive Covenant Agreement.\nY ou also agree that this Restrictive Covenant Agreement may not be modified or altered in any respect except in\nwriting, signed by you and LabCorp.\nThis Restrictive Covenant Agreement shall be deemed to have been entered into in the State of North Carolina and\nshall be construed in accordance with and governed by the laws of North Carolina, to the exclusion of the laws of any\nother forum including but not limited to the laws of the State of California. Y ou agree, acknowledge and recognize\nthat by virtue of your employment with the Employer Company, either a North Carolina corporation or a subsidiary of\na North Carolina corporation, with its principal place of business in North Carolina, and your own contacts and\nbusiness dealings with LabC orp and the Employer Company in North Carolina, North Carolina has a substantial\nrelationship to this Restrictive Covenant A greement and a materially greater interest in applying its laws, over and to\nthe exclusion of the laws of any other forum, to the resolution of any dispute arising out of or relating to this\nRestrictive Covenant A greement.\nAny action, special proceeding or other proceeding, including without limitation any request for temporary,\npreliminary, or permanent injunctive relief with respect to this Restrictive Covenant Agreement shall be brought\nexclusively in the federal or state courts of the State of North Carolina. You and the Employer Company irrevocably\nconsent to the jurisdiction of the Federal and State courts of North Carolina and you hereby consent and submit to\npersonal jurisdiction in the State of North Carolina. You and the Employer Company irrevocably waive any\nobjection, including an objection or defense based on lack of personal jurisdiction, improper venue or forum\nnon-conveniens which either may now or hereafter have to the bringing of any action or proceeding in connection\nwith this Restrictive Covenant Agreement You acknowledge and recognize that in the event that you breach this\nRestrictive Covenant Agreement, the Employer Company may initiate a lawsuit against you in North Carolina, that\nyou waive your right to have that lawsuit be brought in a court located closer to where you may reside, and that you\n \nwill be required to travel to and defend yourself in North Carolina. You likewise agree that to the extent you\ninstitute any action arising out of or relating to this Restrictive Covenant Agreement, it shall be brought in North\nCarolina and doing so does not present any undue burden or inconvenience to you.\nk. Y ou shall at all times abide by such laws and regulations, including but not limited to such laws which relate to the\nimproper inducement for referrals of items or Services reimbursable by the Federal health care programs 42 U.S.C. §\n1320a-7b(b) (the ”anti-kickback statute"). Y ou acknowledge that you are (i) aware that the United States securities\nlaws prohibit any person who has material nonpublic information about the Employer Company from purchasing or\nselling securities of such Employer Company, or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities and\n(ii) familiar with the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder and agrees\nthat it will neither use, nor cause any third party to use, any Information in contravention of such Act or any such rules\nand regulations, including Rules 10b-5 and 14e-3.\n1. Except as stated otherwise herein, this Restrictive Covenant Agreement contains the entire agreement between the\nparties hereto with respect to the subject matter hereof, and there are no representations, warranties, covenants,\nconditions, understandings or agreements other than those expressly set forth herein.\nIN WITNESS WHEREOF, the undersigned have duly executed and delivered this A greement, or have caused this Agreement to be\nduly executed and delivered on their behalf.\nLABORATORY CORPORATION OF\nAMERICA HOLDINGS\nName:\nTitle:\nEXECUTIVE\nA dam H. Schechter	Exhibit C\nCONFIDENTHALITYNONCOMPETITIONNON SOLIOITATIONAGREEMENT\nDuring the course of your employment with Laboratory Corporation of America Holdings ("LabCorp") or its subsidiaries, divisions,\nor affiliates, you will have access to, or will acquire, highly confidential information and trade secrets concerning LabCorp's and the\nEmployer Company's business, including, but not limited to, customer lists, pricing, methods of pricing, marketing practices\nadvertising strategy, methods of operation and the needs and requirements of Employer Company's and/or LabCorp's customers.\nIn\naddition, you will receive from LabCorp or Employer Company and/or be exposed to LabCorp's or the Employer Company's\nvaluable technical and marketing information that will materially aid you in the performance of your duties on behalf of the\nEmployer Company, and assist you and/or the Employer Company in furthering the Employer Company's business interests,\nincluding establishing and retaining the Employer Company's customers. The support furnished to you by the Employer Company\nwill enable you to increase the value of the Employer Company's goodwill with the Employer Company's customers, which is a\nvaluable asset of the Employer Company.\nAs indicated by the foregoing, the services you will be performing for the Employer Company will be of a special, unique and\nextraordinary nature. A ccordingly, in consideration of LabCorp extending to you, as applicable, certain incentive compensation, as\nset forth in the A greement(s) to which this Exhibit is made a part thereof and which governs the grant of said benefits, any and all of\nwhich benefits otherwise would not be provided to you absent your agreement to be bound by the terms of this\nConfidentialityNon-Competition/Non-SolicitationA greement ("Restrictive Covenant A greement"), you agree that\n1.\nProperty Rights and Workproduct. All ideas, inventions, discoveries, computer programs, developments, standard\noperating procedures, designs, improvements, formulae, processes, techniques, programs, know-how, data, business plans,\nreports, presentations, or any other work product of possible technical or commercial importance relating to the Employer\nCompany's business or anticipated business (hereafter collectively referred to as "Work Product") created or developed by\nyou as part of your employment with the Employer Company shall be deemed to be work made for hire and that the\nEmployer Company shall be the sole owner of all rights, including copyright, in and to the Work Product. If such Work\nProduct, or any part thereof, does not qualify as work made for hire, you agree to assign, and hereby assign, to the Employer\nCompany for the full term of the copyright and all extensions thereof all of your right, title and interest in and to the Work\nProduct. The Employer Company may, at its own expense, prepare and process applications for copyrights, trademarks,\nservice marks, or letter patents, or may take other actions that it deems necessary or appropriate to protect itself with respect\nto the aforementioned items. Y ou shall cooperate with the Employer Company in enforcing and protecting its rights by\nexecuting such applications or other documentation prepared for the protection\n1\nof such interests and assigning them to the Employer Company, as well as executing all papers pertaining to said inventions,\ndocuments, marks, improvements, discoveries, trade secrets, applications and protective actions.\n2. Confidentiality. Y ou agree that during the term of your employment and for any time after your termination, you shall not,\nwithout the prior written consent of the Employer Company, divulge to any third party or use for your own benefit, or for\nany purpose other than the exclusive benefit of the Employer Company, any Confidential Information of the Employer\nCompany, LabCorp and its subsidiaries, divisions, or affiliates. In this Restrictive Covenant A greement, Confidential\nInformation shall mean information that concerns the Employer Company's, LabCorp's and its subsidiaries' divisions', or\naffiliates' prices, pricing methods, costs, profits, profit margins, suppliers, methods, procedures, processes or combinations\nor applications thereof developed in, by, or for the Employer Company's business, research and development projects, data,\nbusiness strategies, marketing strategies, sales techniques, customer lists, customer information, financial information, or\nany other information concerning the Employer Company or its business that is not readily and easily available to the public\nor to those persons in the same business, trade, or industry of the Employer Company. The term "customer information" as\nused in this Restrictive Covenant A greement shall mean information that concerns the course of dealing between the\nEmployer Company and its customers or potential customers solicited by the Employer Company, customer preferences,\nparticular contracts or locations of customers or potential customers, negotiations with customers, and any other information\nconcerning customers or potential customers obtained by the Employer Company that is not readily and easily available to\nthe public or to those in the business, trade, or industry of the Employer Company Y our obligation not to disclose\nConfidential Information does not prohibit you from (a) disclosing the information to a goverment agency if you are\nrequired to produce the information pursuant to a subpoena, court order, administrative order or other legal process,\n(b) discussing terms and conditions of employment or engaging in other activities protected by the National Labor Relations\nAct, (c) communicating with the Securities and Exchange Commission about securities law violations, or\n(d) communicating with any other government entity or agency if such communication is to report a violation of applicable\nlaw. However, you shall notify the Employer Company in writing within three (3) calendar days of the receipt of any\nsubpoena, court order, administrative order or other legal process requiring disclosure of Confidential Information and shall\nprovide the Employer Company with a copy of said subpoena, court order, administrative order or other legal process.\n2\n3. Non-Solicitation of L abc Employees. During the term of your employment and for a period of twelve (12) months\nfollowing the term of your employment you shall not, directly or indirectly through a subordinate, co-worker, peer, or any\nother person or entity contact, solicit, encourage or induce any officer, director or employee of LabCorp or its subsidiaries\nand affiliates to work for or provide services to you and/or any other person or entity that either (i) directly provides\nproducts or services that compete with the products or services provided by the Employer Company in a geographic market\nserviced by the Employer Company or (ii) supplies, services, advises or consults with a person, trade or business that\nproducts or services that compete with the products or services provided by the Employer Company in a geographic market\nserviced by the Employer Company.\n4.\nNon-Solicitation of Customers. During your employment and for a period of twelve (12) months following the voluntary\nor involuntary termination of your employment, you will not either directly or indirectly through a subordinate, co-worker,\npeer or other person or entity, call upon, contact, or solicit or attempt to call upon, contact or solicit any customer or\ncustomer prospect of the Employer Company, with a view toward the sale or providing of any service or product\ncompetitive with the products and services offered by the Employer Company; provided, however, the restrictions set forth\nin Paragraph 4 shall apply only to customers or prospects of the Employer Company, or representatives of the same, with\nwhich you had contact during the last twenty-four (24) months of your employment with the Employer Company. The\nparties agree and affirm that their intention with respect to Paragraph 4 is that your activities be limited only for a twelve\n(12) month period after termination of your employment with the Employer Company for any reason. The provisions\ncalling for a "look back" of twenty-four (24) calendar months prior to the termination of employment are intended solely as\na\nmeans of identifying the customers and potential customers to which such restrictions apply and are not intended to nor\nshall they, under any circumstances, be construed to define the length or term of any such restriction.\n5. Noncompetition. During your employment and for a period of twelve (12) months following your voluntary or involuntary\ntermination of employment, you shall not become an owner in, shareholder with more than a 2% equity interest in, investor\nin, or an employee, contractor, consultant, advisor, representative, officer, director, or agent of, a trade or business that\noffers products and services that are the same or substantially similar to the products and services provided by the Employer\nCompany in any geographic market in which the Employer Company conducts business ("Competitor"); provided,\nhowever, that the duties and responsibilities of said employment or engagement as an owner in, shareholder with more than\n2% equity interest in, investor in, employee, contractor, consultant, advisor, representative, officer, director or agent are\n3\n(i) the same, similar, or substantially related to your current duties and responsibilities or duties or responsibilities\nperformed by you while employed by the Employer Company at any time during a six (6) month period prior to your date\nof termination of employment and (ii) related to or concerning the Competitor's business activities in the Restricted\nTerritory. The parties agree and affirm that their intention with respect to Paragraph 5 is that your activities shall be limited\nonly for the twelve (12) month period after termination of employment for any reason. The provisions calling for a "look\nback" of six (6) calendar months prior to the date of termination of employment are intended solely as a means of\nidentifying the duties and responsibilities that will define the restricted activities covered by Paragraph 5 and are not\nintended to nor shall they, under any circumstances, be construed to define the length or term of any such restriction. For\npurposes of Paragraph 5, the term "Restricted Territory" means the geographic area that is part of your current duties and\nresponsibilities or the geographic area that was part of your duties and responsibilities within a period of six (6) month\nperiod prior to the date of your termination of employment. If a court of competent jurisdiction determines that the\nRestricted Territory as defined herein is too restrictive, then the parties agree that said court may reduce or limit the\nRestricted Territory to the largest acceptable area so as to enable the enforcement of Paragraph 5.\n6.\nReturn of Confidential Information. A t any time upon the request of the Employer Company or upon your termination of\nyour employment, you shall return to the Employer Company any and all Employer Company property including but not\nlimited to laptops, phones, smart phones and documents or materials in your possession, custody and control that contain\nConfidential Information. Y ou also agree that upon termination of employment, you shall destroy any Confidential\nInformation stored on your personal computer or other data storage device. Along with the return of said documents and\nmaterials, you shall provide the Employer Company (upon the Employer Company's request) with a sworn or written\nstatement indicating that you do not have possession, custody and control of any of the Employer Company's Confidential\nInformation and have destroyed all of the Employer Company's data electronically stored on your personal computer or\nother data storage device.\n7.\nNotice. Notice shall be effective only if it is made in writing and actually or constructively received by the individuals\nbelow. To be effective, any notice required under this Restrictive Covenant A greement must be sent by nationally\nrecognized express delivery courier or by certified mail, return receipt requested, to the person(s) and address(es) listed\nbelow.\nSenior Vice President, Global General Counsel\nLaboratory Corporation of America Holdings\n531 South Spring Street\nBurlington, North Carolina 27215\n4\nand, if to you, notice shall be sent to your last known mailing address on record at the Employer Company. Y ou have an obligation to\nensure that the Employer Company's records contain your most recent address.\n8.\nBreach/Available Remedies.\na.\nExcept as otherwise provided in this subparagraph, if any provision of this Restrictive Covenant A greement shall be\ndetermined to be invalid or unenforceable by a court of competent jurisdiction, that part shall be ineffective to the\nextent of such invalidity or unenforceability only, without in any way affecting the remaining parts of said provision or\nthe remaining provisions of this Restrictive Covenant A greement; provided, that if any provision contained in this\nRestrictive Covenant A greement shall be adjudicated to be invalid or unenforceable because such provision is held to\nbe excessively broad as to duration, geographic scope, activity or subject, the parties agree that the said provision shall\nbe limited and reduced to the maximum extent compatible with the applicable laws of such jurisdiction, and such\namendment only to apply with respect to the operation of such provision in the applicable jurisdiction in which the\nadjudication is made\nb.\nY ou agree that as part of this Restrictive Covenant A greement, you will have access to the Employer Company's\nConfidential Information, personnel, and existing and potential customers of the Employer Company. Y ou further\nagree that the Employer Company maintains a competitive advantage over other persons or entities in the trade or\nbusiness of providing commercial medical laboratory testing services as a result of the Employer Company's\nConfidential Information, personnel and existing and potential customer contacts. Y ou further agree that the\nEmployer Company will be placed at a competitive disadvantage in the event that you breach this Restrictive\nCovenant A greement and that damages would not be an adequate or reasonable remedy in the event of such breach.\nA ccordingly, you stipulate that in the event that you breach one or more of the provisions set forth in this Restrictive\nCovenant A greement, the Employer Company will be entitled to an injunction restraining you from violating the terms\nof those paragraphs. Nothing herein shall be construed as prohibiting the Employer Company from pursuing any other\nremedy available for such breach or prospective breach.\n9. Miscellaneous.\na.\nA bsent any other agreement to the contrary nothing herein shall be construed as giving you the right to continued\nservice or employment relationship with the Employer Company. This A greement does not alter\n5\nor amend in any way the Employer Company's right to terminate the employment relationship in accordance with any\noffer letter, employment contract or applicable law.\nb.\nY ou represent and warrant that you are not a party to any contract, agreement or understanding that prevents or\nprohibits you from entering into and fully performing under this Restrictive Covenant A greement.\nC.\nIn the event a court of law declares any provision of this Restrictive Covenant A greement to be null and void, it is\nunderstood and agreed by you and the Employer Company that such clause shall be severed from this Restrictive\nCovenant A greement and that the remaining provisions of this Restrictive Covenant A greement shall continue to be\nbinding on you.\nd.\nIt is understood and agreed by you and Laboratory Corporation of A merica Holdings ("LabCorp") that this\nConfidentialityiNon:compeitionnon- solicitationAgreement constitutes the agreement in its entirety and supersedes\nany previous Confidentiality/Non-Competition/Non-SolicitationA greement previously executed by you as part of an\nEquity A ward A greement with LabCorp. This Confidentiaity/Non-CompetitionNon-Solicitation A greement replaces\nany other non-compete, non-solicitation and confidentiality agreement which you may have previously executed in\nfavor of LabCorp or one of its subsidiary companies incorporated within the United States. This\nConfidentiality/Non-Competition/Non-SolicitationA greement shall not replace, amend, restrict, otherwise modify or\nsupersede any employment contract or agreement between you and a foreign subsidiary of LabCorp and shall not\namend, alter or affect any non-compete, non-solicitation or confidentiality agreement executed by you and LabCorp or\nan Employer Company in connection with a merger or acquisition agreement of a business entity with whom you were\npreviously employed or affiliated, including, but not limited to, an ownership or investment interest in said entity.\ne.\nFor purposes of this Restrictive Covenant A greement, the Employer Company shall mean Laboratory Corporation of\nA merica Holdings or its subsidiary and affiliated companies with whom you are employed at the commencement of\nyour employment, as well as any subsequent parent, subsidiary or affiliated company that becomes the employing\nentity in the event of a transfer, promotion, assignment, reassignment or corporate restructuring.\nf.\nAs used herein, "affiliate" shall mean a current or future company or other business entity that, directly or indirectly, is\ncontrolled by, controls or is under common control with Laboratory Corporation of America Holdings. For the\npurposes of the preceding sentence, the meaning of the word "control" shall include, but not necessarily be limited to,\nownership of more than fifty percent (50%) of the voting shares or other interest of the Employer Company or other\nbusiness entity.\n6\ng.\nThis Restrictive Covenant A greement shall be binding upon you and shall inure to the benefit of the parties and their\nrespective personal representatives, heirs, affiliates, successors, and assigns. LabCorp may at its sole discretion assign\nits rights under this Restrictive Covenant A greement.\nh.\nou affirm by signing this Restrictive Covenant A greement that you have completely read this entire Restrictive\nCovenant A greement and understand the terms and conditions included within this Restrictive Covenant A greement.\nou also agree that this Restrictive Covenant A greement may not be modified or altered in any respect except in\nwriting, signed by you and LabCorp.\ni.\nThis Restrictive Covenant A greement shall be deemed to have been entered into in the State of North Carolina and\nshall be construed in accordance with and governed by the laws of North Carolina, to the exclusion of the laws of any\nother forum including but not limited to the laws of the State of California. Y ou agree, acknowledge and recognize\nthat by virtue of your employment with the Employer Company, either a North Carolina corporation or a subsidiary of\na North Carolina corporation, with its principal place of business in North Carolina, and your own contacts and\nbusiness dealings with LabCorp and the Employer Company in North Carolina, North Carolina has a substantial\nrelationship to this Restrictive Covenant A greement and a materially greater interest in applying its laws, over and to\nthe exclusion of the laws of any other forum, to the resolution of any dispute arising out of or relating to this\nRestrictive Covenant A greement.\nj.\nAny action, special proceeding or other proceeding, including without limitation any request for temporary,\npreliminary, or permanent injunctive relief with respect to this Restrictive Covenant A greement shall be brought\nexclusively in the federal or state courts of the State of North Carolina. You and the Employer Company irrevocably\nconsent to the jurisdiction of the Federal and State courts of North Carolina and you hereby consent and submit to\npersonal jurisdiction in the State of North Carolina. You and the Employer Company irrevocably waive any\nobjection, including an objection or defense based on lack of personal jurisdiction, improper venue or forum\nnon-conveniens which either may now or hereafter have to the bringing of any action or proceeding in connection\nwith this Restrictive Covenant Agreement. You acknowledge and recognize that in the event that you breach this\nRestrictive Covenant Agreement the Employer Company may initiate a lawsuit against you in North Carolina, that\nyou waive your right to have that lawsuit be brought in a court located closer to where you may reside, and that you\n7\nwill be required to travel to and defend yourself in North Carolina. You likewise agree that to the extent you\ninstitute any action arising out of or relating to this Restrictive Covenant Agreement, it shall be brought in North\nCarolina and doing SO does not present any undue burden or inconvenience to you.\nk.\nY ou shall at all times abide by such laws and regulations, including but not limited to such laws which relate to the\nimproper inducement for referrals of items or Services reimbursable by the Federal health care programs 42 U.S.C. S\n1320a-7b(b) (the 'anti-kickback statute"). Y ou acknowledge that you are (i) aware that the United States securities\nlaws prohibit any person who has material nonpublic information about the Employer Company from purchasing or\nselling securities of such Employer Company, or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities and\n(ii) familiar with the Securities Exchange A ct of 1934 and the rules and regulations promulgated thereunder and agrees\nthat it will neither use, nor cause any third party to use, any Information in contravention of such A ct or any such rules\nand regulations, including Rules 10b-5 and 14e-3.\n1.\nExcept as stated otherwise herein, this Restrictive Covenant A greement contains the entire agreement between the\nparties hereto with respect to the subject matter hereof, and there are no representations, warranties, covenants,\nconditions, understandings or agreements other than those expressly set forth herein.\nIN WITNESS WHEREOF, the undersigned have duly executed and delivered this A greement, or have caused this A greement to be\nduly executed and delivered on their behalf.\nLABORATORY CORPORATION OF\nAMERICA HOLDINGS\nName:\nTitle:\nEXECUTIVE\nAdam H. Schechter\n8	Exhibit C\nCONFIDENTIALITY/NON-COMPETITION/NON-SOLICITATION AGREEMENT\nDuring the course of your employment with Laboratory Corporation of America Holdings (“LabCorp”) or its subsidiaries, divisions,\nor affiliates, you will have access to, or will acquire, highly confidential information and trade secrets concerning LabCorp’s and the\nEmployer Company’s business, including, but not limited to, customer lists, pricing, methods of pricing, marketing practices,\nadvertising strategy, methods of operation and the needs and requirements of Employer Company’s and/or LabCorp’s customers. In\naddition, you will receive from LabCorp or Employer Company and/or be exposed to LabCorp’s or the Employer Company’s\nvaluable technical and marketing information that will materially aid you in the performance of your duties on behalf of the\nEmployer Company, and assist you and/or the Employer Company in furthering the Employer Company’s business interests,\nincluding establishing and retaining the Employer Company’s customers. The support furnished to you by the Employer Company\nwill enable you to increase the value of the Employer Company’s goodwill with the Employer Company’s customers, which is a\nvaluable asset of the Employer Company.\nAs indicated by the foregoing, the services you will be performing for the Employer Company will be of a special, unique and\nextraordinary nature. Accordingly, in consideration of LabCorp extending to you, as applicable, certain incentive compensation, as\nset forth in the Agreement(s) to which this Exhibit is made a part thereof and which governs the grant of said benefits, any and all of\nwhich benefits otherwise would not be provided to you absent your agreement to be bound by the terms of this\nConfidentiality/Non-Competition/Non-Solicitation Agreement (“Restrictive Covenant Agreement”), you agree that:\n1. Property Rights and Workproduct. All ideas, inventions, discoveries, computer programs, developments, standard\noperating procedures, designs, improvements, formulae, processes, techniques, programs, know-how, data, business plans,\nreports, presentations, or any other work product of possible technical or commercial importance relating to the Employer\nCompany’s business or anticipated business (hereafter collectively referred to as “Work Product”) created or developed by\nyou as part of your employment with the Employer Company shall be deemed to be work made for hire and that the\nEmployer Company shall be the sole owner of all rights, including copyright, in and to the Work Product. If such Work\nProduct, or any part thereof, does not qualify as work made for hire, you agree to assign, and hereby assign, to the Employer\nCompany for the full term of the copyright and all extensions thereof all of your right, title and interest in and to the Work\nProduct. The Employer Company may, at its own expense, prepare and process applications for copyrights, trademarks,\nservice marks, or letter patents, or may take other actions that it deems necessary or appropriate to protect itself with respect\nto the aforementioned items. You shall cooperate with the Employer Company in enforcing and protecting its rights by\nexecuting such applications or other documentation prepared for the protection\n1\nof such interests and assigning them to the Employer Company, as well as executing all papers pertaining to said inventions,\ndocuments, marks, improvements, discoveries, trade secrets, applications and protective actions.\n2. Confidentiality. You agree that during the term of your employment and for any time after your termination, you shall not,\nwithout the prior written consent of the Employer Company, divulge to any third party or use for your own benefit, or for\nany purpose other than the exclusive benefit of the Employer Company, any Confidential Information of the Employer\nCompany, LabCorp and its subsidiaries, divisions, or affiliates. In this Restrictive Covenant Agreement, Confidential\nInformation shall mean information that concerns the Employer Company’s, LabCorp’s and its subsidiaries’, divisions’, or\naffiliates’ prices, pricing methods, costs, profits, profit margins, suppliers, methods, procedures, processes or combinations\nor applications thereof developed in, by, or for the Employer Company’s business, research and development projects, data,\nbusiness strategies, marketing strategies, sales techniques, customer lists, customer information, financial information, or\nany other information concerning the Employer Company or its business that is not readily and easily available to the public\nor to those persons in the same business, trade, or industry of the Employer Company. The term “customer information” as\nused in this Restrictive Covenant Agreement shall mean information that concerns the course of dealing between the\nEmployer Company and its customers or potential customers solicited by the Employer Company, customer preferences,\nparticular contracts or locations of customers or potential customers, negotiations with customers, and any other information\nconcerning customers or potential customers obtained by the Employer Company that is not readily and easily available to\nthe public or to those in the business, trade, or industry of the Employer Company. Your obligation not to disclose\nConfidential Information does not prohibit you from (a) disclosing the information to a government agency if you are\nrequired to produce the information pursuant to a subpoena, court order, administrative order or other legal process,\n(b) discussing terms and conditions of employment or engaging in other activities protected by the National Labor Relations\nAct, (c) communicating with the Securities and Exchange Commission about securities law violations, or\n(d) communicating with any other government entity or agency if such communication is to report a violation of applicable\nlaw. However, you shall notify the Employer Company in writing within three (3) calendar days of the receipt of any\nsubpoena, court order, administrative order or other legal process requiring disclosure of Confidential Information and shall\nprovide the Employer Company with a copy of said subpoena, court order, administrative order or other legal process.\n2\n3. Non-Solicitation of LabCorp Employees. During the term of your employment and for a period of twelve (12) months\nfollowing the term of your employment, you shall not, directly or indirectly through a subordinate, co-worker, peer, or any\nother person or entity contact, solicit, encourage or induce any officer, director or employee of LabCorp or its subsidiaries\nand affiliates to work for or provide services to you and/or any other person or entity that either (i) directly provides\nproducts or services that compete with the products or services provided by the Employer Company in a geographic market\nserviced by the Employer Company or (ii) supplies, services, advises or consults with a person, trade or business that\nproducts or services that compete with the products or services provided by the Employer Company in a geographic market\nserviced by the Employer Company.\n4. Non-Solicitation of Customers. During your employment and for a period of twelve (12) months following the voluntary\nor involuntary termination of your employment, you will not either directly or indirectly through a subordinate, co-worker,\npeer or other person or entity, call upon, contact, or solicit or attempt to call upon, contact or solicit any customer or\ncustomer prospect of the Employer Company, with a view toward the sale or providing of any service or product\ncompetitive with the products and services offered by the Employer Company; provided, however, the restrictions set forth\nin Paragraph 4 shall apply only to customers or prospects of the Employer Company, or representatives of the same, with\nwhich you had contact during the last twenty-four (24) months of your employment with the Employer Company. The\nparties agree and affirm that their intention with respect to Paragraph 4 is that your activities be limited only for a twelve\n(12) month period after termination of your employment with the Employer Company for any reason. The provisions\ncalling for a “look back” of twenty-four (24) calendar months prior to the termination of employment are intended solely as\na means of identifying the customers and potential customers to which such restrictions apply and are not intended to nor\nshall they, under any circumstances, be construed to define the length or term of any such restriction.\n5. Noncompetition. During your employment and for a period of twelve (12) months following your voluntary or involuntary\ntermination of employment, you shall not become an owner in, shareholder with more than a 2% equity interest in, investor\nin, or an employee, contractor, consultant, advisor, representative, officer, director, or agent of, a trade or business that\noffers products and services that are the same or substantially similar to the products and services provided by the Employer\nCompany in any geographic market in which the Employer Company conducts business (“Competitor”); provided,\nhowever, that the duties and responsibilities of said employment or engagement as an owner in, shareholder with more than\n2% equity interest in, investor in, employee, contractor, consultant, advisor, representative, officer, director or agent are\n3\n(i) the same, similar, or substantially related to your current duties and responsibilities or duties or responsibilities\nperformed by you while employed by the Employer Company at any time during a six (6) month period prior to your date\nof termination of employment and (ii) related to or concerning the Competitor’s business activities in the Restricted\nTerritory. The parties agree and affirm that their intention with respect to Paragraph 5 is that your activities shall be limited\nonly for the twelve (12) month period after termination of employment for any reason. The provisions calling for a “look\nback” of six (6) calendar months prior to the date of termination of employment are intended solely as a means of\nidentifying the duties and responsibilities that will define the restricted activities covered by Paragraph 5 and are not\nintended to nor shall they, under any circumstances, be construed to define the length or term of any such restriction. For\npurposes of Paragraph 5, the term “Restricted Territory” means the geographic area that is part of your current duties and\nresponsibilities or the geographic area that was part of your duties and responsibilities within a period of six (6) month\nperiod prior to the date of your termination of employment. If a court of competent jurisdiction determines that the\nRestricted Territory as defined herein is too restrictive, then the parties agree that said court may reduce or limit the\nRestricted Territory to the largest acceptable area so as to enable the enforcement of Paragraph 5.\n6. Return of Confidential Information. At any time upon the request of the Employer Company or upon your termination of\nyour employment, you shall return to the Employer Company any and all Employer Company property including but not\nlimited to laptops, phones, smart phones and documents or materials in your possession, custody and control that contain\nConfidential Information. You also agree that upon termination of employment, you shall destroy any Confidential\nInformation stored on your personal computer or other data storage device. Along with the return of said documents and\nmaterials, you shall provide the Employer Company (upon the Employer Company’s request) with a sworn or written\nstatement indicating that you do not have possession, custody and control of any of the Employer Company’s Confidential\nInformation and have destroyed all of the Employer Company’s data electronically stored on your personal computer or\nother data storage device.\n7. Notice. Notice shall be effective only if it is made in writing and actually or constructively received by the individuals\nbelow. To be effective, any notice required under this Restrictive Covenant Agreement must be sent by nationally\nrecognized express delivery courier or by certified mail, return receipt requested, to the person(s) and address(es) listed\nbelow.\nSenior Vice President, Global General Counsel\nLaboratory Corporation of America Holdings\n531 South Spring Street\nBurlington, North Carolina 27215\n4\nand, if to you, notice shall be sent to your last known mailing address on record at the Employer Company. You have an obligation to\nensure that the Employer Company’s records contain your most recent address.\n8. Breach/Available Remedies.\na. Except as otherwise provided in this subparagraph, if any provision of this Restrictive Covenant Agreement shall be\ndetermined to be invalid or unenforceable by a court of competent jurisdiction, that part shall be ineffective to the\nextent of such invalidity or unenforceability only, without in any way affecting the remaining parts of said provision or\nthe remaining provisions of this Restrictive Covenant Agreement; provided, that if any provision contained in this\nRestrictive Covenant Agreement shall be adjudicated to be invalid or unenforceable because such provision is held to\nbe excessively broad as to duration, geographic scope, activity or subject, the parties agree that the said provision shall\nbe limited and reduced to the maximum extent compatible with the applicable laws of such jurisdiction, and such\namendment only to apply with respect to the operation of such provision in the applicable jurisdiction in which the\nadjudication is made.\nb. You agree that as part of this Restrictive Covenant Agreement, you will have access to the Employer Company’s\nConfidential Information, personnel, and existing and potential customers of the Employer Company. You further\nagree that the Employer Company maintains a competitive advantage over other persons or entities in the trade or\nbusiness of providing commercial medical laboratory testing services as a result of the Employer Company’s\nConfidential Information, personnel, and existing and potential customer contacts. You further agree that the\nEmployer Company will be placed at a competitive disadvantage in the event that you breach this Restrictive\nCovenant Agreement and that damages would not be an adequate or reasonable remedy in the event of such breach.\nAccordingly, you stipulate that in the event that you breach one or more of the provisions set forth in this Restrictive\nCovenant Agreement, the Employer Company will be entitled to an injunction restraining you from violating the terms\nof those paragraphs. Nothing herein shall be construed as prohibiting the Employer Company from pursuing any other\nremedy available for such breach or prospective breach.\n9. Miscellaneous.\na. Absent any other agreement to the contrary nothing herein shall be construed as giving you the right to continued\nservice or employment relationship with the Employer Company. This Agreement does not alter\n5\nor amend in any way the Employer Company’s right to terminate the employment relationship in accordance with any\noffer letter, employment contract or applicable law.\nb. You represent and warrant that you are not a party to any contract, agreement or understanding that prevents or\nprohibits you from entering into and fully performing under this Restrictive Covenant Agreement.\nc. In the event a court of law declares any provision of this Restrictive Covenant Agreement to be null and void, it is\nunderstood and agreed by you and the Employer Company that such clause shall be severed from this Restrictive\nCovenant Agreement and that the remaining provisions of this Restrictive Covenant Agreement shall continue to be\nbinding on you.\nd. It is understood and agreed by you and Laboratory Corporation of America Holdings (“LabCorp”) that this\nConfidentiality/Non-Competition/Non-Solicitation Agreement constitutes the agreement in its entirety and supersedes\nany previous Confidentiality/Non-Competition/Non-Solicitation Agreement previously executed by you as part of an\nEquity Award Agreement with LabCorp. This Confidentiality/Non-Competition/Non-Solicitation Agreement replaces\nany other non-compete, non-solicitation and confidentiality agreement which you may have previously executed in\nfavor of LabCorp or one of its subsidiary companies incorporated within the United States. This\nConfidentiality/Non-Competition/Non-Solicitation Agreement shall not replace, amend, restrict, otherwise modify or\nsupersede any employment contract or agreement between you and a foreign subsidiary of LabCorp and shall not\namend, alter or affect any non-compete, non-solicitation or confidentiality agreement executed by you and LabCorp or\nan Employer Company in connection with a merger or acquisition agreement of a business entity with whom you were\npreviously employed or affiliated, including, but not limited to, an ownership or investment interest in said entity.\ne. For purposes of this Restrictive Covenant Agreement, the Employer Company shall mean Laboratory Corporation of\nAmerica Holdings or its subsidiary and affiliated companies with whom you are employed at the commencement of\nyour employment, as well as any subsequent parent, subsidiary or affiliated company that becomes the employing\nentity in the event of a transfer, promotion, assignment, reassignment or corporate restructuring.\nf. As used herein, “affiliate” shall mean a current or future company or other business entity that, directly or indirectly, is\ncontrolled by, controls or is under common control with Laboratory Corporation of America Holdings. For the\npurposes of the preceding sentence, the meaning of the word “control” shall include, but not necessarily be limited to,\nownership of more than fifty percent (50%) of the voting shares or other interest of the Employer Company or other\nbusiness entity.\n6\ng. This Restrictive Covenant Agreement shall be binding upon you and shall inure to the benefit of the parties and their\nrespective personal representatives, heirs, affiliates, successors, and assigns. LabCorp may at its sole discretion assign\nits rights under this Restrictive Covenant Agreement.\nh. You affirm by signing this Restrictive Covenant Agreement that you have completely read this entire Restrictive\nCovenant Agreement and understand the terms and conditions included within this Restrictive Covenant Agreement.\nYou also agree that this Restrictive Covenant Agreement may not be modified or altered in any respect except in\nwriting, signed by you and LabCorp.\ni. This Restrictive Covenant Agreement shall be deemed to have been entered into in the State of North Carolina and\nshall be construed in accordance with and governed by the laws of North Carolina, to the exclusion of the laws of any\nother forum including but not limited to the laws of the State of California. You agree, acknowledge and recognize\nthat by virtue of your employment with the Employer Company, either a North Carolina corporation or a subsidiary of\na North Carolina corporation, with its principal place of business in North Carolina, and your own contacts and\nbusiness dealings with LabCorp and the Employer Company in North Carolina, North Carolina has a substantial\nrelationship to this Restrictive Covenant Agreement and a materially greater interest in applying its laws, over and to\nthe exclusion of the laws of any other forum, to the resolution of any dispute arising out of or relating to this\nRestrictive Covenant Agreement.\nj. Any action, special proceeding or other proceeding, including without limitation any request for temporary,\npreliminary, or permanent injunctive relief with respect to this Restrictive Covenant Agreement shall be brought\nexclusively in the federal or state courts of the State of North Carolina. You and the Employer Company irrevocably\nconsent to the jurisdiction of the Federal and State courts of North Carolina and you hereby consent and submit to\npersonal jurisdiction in the State of North Carolina. You and the Employer Company irrevocably waive any\nobjection, including an objection or defense based on lack of personal jurisdiction, improper venue or forum\nnon-conveniens which either may now or hereafter have to the bringing of any action or proceeding in connection\nwith this Restrictive Covenant Agreement. You acknowledge and recognize that in the event that you breach this\nRestrictive Covenant Agreement, the Employer Company may initiate a lawsuit against you in North Carolina, that\nyou waive your right to have that lawsuit be brought in a court located closer to where you may reside, and that you\n7\nwill be required to travel to and defend yourself in North Carolina. You likewise agree that to the extent you\ninstitute any action arising out of or relating to this Restrictive Covenant Agreement, it shall be brought in North\nCarolina and doing so does not present any undue burden or inconvenience to you.\nk. You shall at all times abide by such laws and regulations, including but not limited to such laws which relate to the\nimproper inducement for referrals of items or Services reimbursable by the Federal health care programs 42 U.S.C . §\n1320a-7b(b) (the “anti-kickback statute”). You acknowledge that you are (i) aware that the United States securities\nlaws prohibit any person who has material nonpublic information about the Employer Company from purchasing or\nselling securities of such Employer Company, or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities and\n(ii) familiar with the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder and agrees\nthat it will neither use, nor cause any third party to use, any Information in contravention of such Act or any such rules\nand regulations, including Rules 10b-5 and 14e-3 .\nl. Except as stated otherwise herein, this Restrictive Covenant Agreement contains the entire agreement between the\nparties hereto with respect to the subject matter hereof, and there are no representations, warranties, covenants,\nconditions, understandings or agreements other than those expressly set forth herein.\nIN WITNESS WHEREOF, the undersigned have duly executed and delivered this Agreement, or have caused this Agreement to be\nduly executed and delivered on their behalf.\nLABORATORY CORPORATION OF\nAMERICA HOLDINGS\nName:\nTitle:\nEXECUTIVE\nAdam H. Schechter\n8
8868f63bc36baf89555e0e651ae0ecec.pdf	effective_date jurisdiction party term	EX-10.9 13 dex109.htm EMPLOYMENT AND CONFIDENTIALITY/NON-COMPETITION AGREEMENT -\nJOHNSON\nExhibit 10.9\nBATS EMPLOYMENT AND\nCONFIDENTIALITY/NON-COMPETITION AGREEMENT\nTHIS AGREEMENT is made, entered into and effective as of March 9th, 2009, by and between BATS Exchange, Inc., a Delaware\ncorporation (hereinafter “Company”) and Jeromee Johnson, an individual (hereinafter “Employee”).\nWHEREAS, Company is engaged in the business of operating a registered national securities exchange, and any other legal business\nactivities; and\nWHEREAS, Company desires to hire Employee or to continue to employ Employee, and Employee desires to be hired by the Company or to\ncontinue to be employed by the Company, upon the terms and conditions set forth herein; and\nWHEREAS, Company desires to protect the interests of Company and Company’s customers and Confidential Information that may have\nbeen or that may be disclosed to Employee.\nNOW, THEREFORE, in consideration of the foregoing, of the mutual promises contained herein, the Employee’s employment and/or\ncontinued employment with the Company, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,\nthe parties agree as follows:\n1. Employment. Company hereby employs Employee and Employee accepts such employment, upon the terms and conditions hereinafter set\nforth. Employee agrees to devote Employee’s full business time to the affairs of Company and not to engage, either as an employee, partner,\nconsultant or otherwise, in any other business activity, without giving prior written notification to the Company. Employee agrees that at all times\nduring the term hereof Employee will faithfully perform the duties assigned by Company to the best of Employee’s ability. Employee acknowledges\nthat from time to time the Company may promulgate workplace policies and rules. Employee agrees to fully comply with all such policies and rules\nand understands that failure to do so may result in disciplinary action up to and including immediate discharge.\n2. Term. The term of this Agreement will commence as of the effective date of this Agreement first written above and shall continue until the\ntermination of Employee’s employment, provided, however, that the provisions of this Agreement which are intended to continue and survive after\nthe termination of this Agreement shall so continue and survive. Employment under this Agreement is “at will” which means that the employment\nrelationship between Employee and Company may be terminated at any time by either party with or without cause, with or without advance\nnotice. Notwithstanding the foregoing, Company requests, but does not require, that Employee provide at least fourteen (14) calendar days advance\nnotice of intent to terminate employment.\n3. Compensation. As compensation for the services to be rendered by Employee pursuant to this Agreement, Company will pay Employee\nsuch compensation as the Company\nshall determine, from time to time, payable on a payment schedule as the Company shall determine, but not less frequently than monthly. Such\ncompensation shall terminate upon termination of Employee’s employment hereunder. Employee also will be entitled to such other Company\nemployee benefits as are generally accorded to Company’s employees in accordance with established Company policies as they are revised from\ntime to time.\n4. Definitions. For purposes of this Agreement, the following definitions will apply:\n(a) “Inventions” means:\n(i) All inventions, designs, diagrams, schematics, algorithms, creative works, codes, improvements, modifications and\nenhancements, whether or not protected or protectable by laws relating to patents or copyrights, which are made or conceived by\nEmployee during Employee’s employment by Company, regardless whether reduced to practice during the term of this employment.\n(b) “Work Product” means all Inventions, documentation, drawings, databases, records, software, creative works, know-how and\ninformation created, in whole or in part, by Employee during Employee’s employment by Company, whether or not protected or protectable by\nlaws relating to patents or copyrights, including, but not limited to, all designs, methodologies, procedures, manuals, program listings, source\ncodes, working papers and other documentation and information related thereto.\n(c) “Confidential Information” means all financial information, customer lists, lists or other documents related to business prospects,\ndocumentation, software, flow charts, programming code, software diagrams, product plans, know-how, data and information relating to the\npast, present or future business or products of Company or any plans therefore, or relating to the past, present or future business or products of\na third party or plans therefore that are disclosed to Company, which Company does not intentionally or routinely disclose to third parties\nwithout restrictions on use or further disclosure. Confidential Information may include, but is not necessarily limited to, information that meets\nthe legal definition of “trade secret.” Employee acknowledges that the Company has taken reasonable and prudent measures to protect its\nConfidential Information including requiring Employee to execute this Agreement.\n5. Ownership and Protection of Inventions and Work Product. Company will be the exclusive owner of all Inventions and Work Product.\n(a) Employee will promptly disclose to Company all Inventions and keep accurate records relating to the conception and reduction to\npractice of all Inventions. Such records will be the exclusive property of Company, and Employee will surrender possession of such records to\nCompany upon the request of the Company or upon termination of Employee’s employment with Company, including all memoranda, notes,\nrecords, drawings, manuals, computer software, source code, and other documents and materials, and all copies thereof, and electronically\nstored versions thereof. Employee will promptly disclose to Company any and all ideas and concepts which\nEmployee may from time to time have or originate that: (i) relate to the business of Company; (ii) result from or are suggested by any work\nwhich Employee has done or may do for or on behalf of Company; or (iii) are developed, tested, improved, investigated or authored in whole\nor in part during time for which Employee was paid by Company or using any resources of Company.\n(b) Employee hereby assigns to Company, without additional consideration to Employee, the entire right, title and interest in and to the\nInventions and Work Product, all registrations or applications for registrations of rights based thereon, and in and to all other proprietary rights\nbased thereon. Employee will execute all such assignments, oaths, declarations and other documents as may be requested by Company to\nreflect the foregoing. Upon the request of the Company, or upon termination of employment, Employee will surrender to Company all\nmemoranda, notes, records, drawings, manuals, computer software, source code, and other documents and materials, and all copies thereof,\nand electronically stored versions thereof, pertaining to the Work Product.\n(c) Employee will cooperate with and provide Company with all information, documentation and assistance that Company may request\nto perfect, enforce or defend the proprietary rights in or based on the Inventions, Work Product or Confidential Information. Company, in its\nsole discretion, will determine the extent of the proprietary rights, if any, to be protected in or based on the Inventions and Work Product. All\nsuch information, documentation and assistance will be provided at no additional expense to Company, except for out-of-pocket expenses that\nEmployee may incur at Company’s request.\n(d) All Inventions and Work Product made or created by Employee will be original works and will not infringe on the rights of any third\nparty.\n(e) Notwithstanding the foregoing, this Agreement will not apply to any Invention for which no equipment, supplies, facility or\nConfidential Information of Company was used and that was developed entirely on Employee’s own time, unless:\n(i) The Invention relates directly to the business or products of Company or to Company’s actual or demonstrably anticipated\nresearch or development; or\n(ii) The Invention results from any work performed by Employee for Company.\n6. Employee Obligations Concerning Confidential Information.\n(a) During the term of Employee’s employment with Company and in perpetuity thereafter, Employee will treat Confidential Information\non a strictly confidential basis and not disclose Confidential Information to others without the prior written permission of Company, or use\nConfidential Information for any purpose, other than for the performance of services for Company.\n(b) Employee acknowledges that Confidential Information as defined herein is the sole and exclusive property of Company. Employee\nwill surrender possession of all Confidential Information to Company upon any suspension or termination of Employee’s employment with\nCompany for any reason. If, after the suspension or termination of Employee’s employment, Employee becomes aware that documents and/or\nelectronically stored data containing Company’s Confidential Information are in his possession or control, Employee will immediately\nsurrender possession of the same to Company.\n7. Proprietary Information of Others. Company understands that Employee may possess proprietary information of third parties and that\nEmployee may have ongoing obligations to third parties with respect thereto. Company expressly requires that Employee will honor such ongoing\nobligations to such third parties and that Employee will not use for the benefit of Company, or disclose to Company, any such proprietary\ninformation.\n8. Company Property. Employee agrees to take all reasonable precautions and actions necessary to safeguard and maintain Company’s\nproperty and equipment in normal operating condition, and Employee agrees to accept financial responsibility for damage or wear to property or\nequipment beyond that associated with normal business use. Employee agrees to notify Company upon any loss or damage to Company’s property\nand equipment. Upon termination, Employee will immediately return and surrender to Company all property and equipment of Company.\n9. Employee’s Obligations in Connection with Company’s Status as a Self-Regulatory Organization. Employee acknowledges that the\nCompany is a self-regulatory organization as that term is defined in the Securities Exchange Act of 1934 and that as a result, the Company and\nEmployee are required to comply with certain statutory obligations applicable to self regulatory organizations. As such, Employee covenants and\nagrees that he:\n(a) Will take no action to interfere with the Company’s ability to carry out its self-regulatory function.\n(b) Will maintain confidential all books and records of the Company pertaining to the self-regulatory function of the Company (including\nbut not limited to disciplinary matters, trading data, trading practices and audit information) that shall come into possession of the Company\nand shall not use such information for any non-regulatory purpose.\n(c) Will comply with the federal securities laws and the rules and regulations thereunder and shall cooperate with the Securities and\nExchange Commission (“SEC”) and the Company pursuant to and to the extent of their respective regulatory authority, including in respect of\nthe SEC’s oversight responsibilities regarding the Company, and the self regulatory functions and responsibilities of the Company.\n(d) Consents to the jurisdiction of the United States federal courts, the SEC, and the Company, for purposes of any suit, action or\nproceeding pursuant to the\nUnited States federal securities laws, and the rules or regulations thereunder, arising out of, or relating to, the activities of the Company, and\nwaives and agrees not to assert by way of motion, as a defense or otherwise in such suit, action, or proceeding, any claims that he is not\npersonally subject to the jurisdiction of the United States federal courts, the SEC, or the Company, that the suit, action or proceeding is an\ninconvenient forum or that the venue of the suit, action or proceeding is improper, or that the subject matter of the suit, action or proceeding\nmay not be enforced in or by such courts or agency.\n10. Competitive Activities.\n(a) During the term of Employee’s employment with the Company and for two (2) years following termination of Employee’s\nemployment for any reason, Employee will not anywhere within the United States or Canada:\n(i) Perform any services anywhere within the United States or Canada, directly or indirectly, for any person or entity whose primary\nbusiness is the operation of a displayed market for the trading of financial instruments.\n(ii) Own, directly or indirectly, an interest in any entity whose primary business is the operation of a displayed market for the\ntrading of financial instruments, except through mutual funds or similar widely diversified investment pools.\n(b) During the period of two (2) years after termination of Employee’s employment with the Company for any reason, Employee will\nnot, directly or indirectly, whether as an employee, representative, officer, director, shareholder, principal or consultant for any entity, compete\nwith the Company by soliciting or accepting the order execution business of any Customer or Prospect of the Company in the United States or\nCanada.\n(i) “Prospect” is defined as any entity or individual to whom the Company has made a sales presentation, either by telephone, in\nwriting or in person and/or submitted a proposal in order to solicit its business during the twelve (12) months preceding termination of\nEmployee’s employment for any reason.\n(ii) “Customer” is defined as any entity or individual: 1) with whom the Company had a contractual relationship at any time during\nthe twelve (12) months preceding termination of employment; or, 2) from whom the Company received payment for services or products\nof any kind during the twelve (12) months preceding termination of employment for any reason.\nDuring the period of two (2) years after termination of Employee’s employment with the Company for any reason, Employee will not, directly or\nindirectly, hire, cause to be hired, or induce any other party to hire other employees of the Company or persons who were employees of the Company\nwhile Employee was an employee of the Company.\n11. Restrictions on Performance of Agreement. Employee warrants and represents that he has the ability to enter into this Agreement and\nperform all obligations hereunder, and that there are no restrictions or obligations to third parties which would in any way detract from or affect\nEmployee’s performance hereunder.\n12. Reasonableness of Restrictions. The parties hereto hereby acknowledge that the foregoing paragraphs are reasonable and necessary for\nthe protection of the Company. Employee acknowledges that the business of the Company is highly competitive and because the Company’s\nbusiness activities are national in scope, the time and geographic restrictions on competition contained in this section of this Agreement are\nnecessary to protect the Company’s business and confidential information. In addition, the Employee further acknowledges that the Company will be\nirreparably harmed if such covenants are not specifically enforced.\n13. Governing Law and Choice of Venue. This Agreement will be governed by and interpreted in accordance with the laws of the State of\nKansas. The parties hereto agree to submit to the jurisdiction of the courts of Kansas for the purposes of enforcement of this Agreement or any action\nthat may arise relating to the employment relationship or the enforcement of this Agreement by Employee and Company. The parties further agree\nthat any such action must be brought in a court of competent jurisdiction sitting in the State of Kansas.\n14. Severability. Each of the sections contained in this Agreement will be enforceable independently of every other section in this Agreement,\nand the invalidity or unenforceability of any section will not invalidate or render unenforceable any other section contained in this Agreement.\nEmployee acknowledges that the restrictive covenants contained in this Agreement are a condition of this Agreement and are reasonable and valid in\ngeographical and temporal scope and in all other respects. If any court determines that any of the covenants contained herein, or any part of any of\nthem, is invalid or unenforceable, the remainder of such covenants and parts thereof will not thereby be affected and will be given full effect, without\nregard to the invalid portion. If any court determines that any of such covenants, or any part thereof, is invalid or unenforceable because of the\ngeographic or temporal scope of such provision, such court will reduce such scope only to the extent necessary to make such covenants valid and\nenforceable.\n15. Survival of Certain Provisions. Any termination or expiration of this Agreement or suspension of termination of Employee’s employment\nby Company notwithstanding, the provisions of this Agreement that are intended to continue and survive will so continue and survive. This\nAgreement and all rights hereunder will inure to the benefit of Company, its successors and assigns.\n16. Accounting for Profits. Employee covenants and agrees that, if he violates any of his covenants or agreements hereunder, Company will\nbe entitled to an accounting and repayment of all profits, compensation, commissions, remunerations or benefits which Employee\ndirectly or indirectly has realized and/or may realize as a result of, growing out of or in connection with any such violation.\n17. Cumulative Remedies and Fees. All rights and remedies of Company will be cumulative and Company will have the right to obtain\nspecific performance against Employee for the enforcement of this Agreement. In addition to its other remedies, Employee agrees that should\nCompany elect to remedy any actual or threatened breach of this Agreement by filing suit, Company will be entitled to a judgment and award against\nEmployee in an amount equal to Company’s reasonable attorney’s fees and costs associated with enforcement of any term of this Agreement.\n18. Equitable Relief. Employee acknowledges that, due to the unique nature of the Confidential Information, Inventions, and Work Product,\nthere may be no adequate remedy at law for any breach of the obligations hereunder, and that any such breach may allow Employee or third parties\nto unfairly compete with Company. For that reason, it is mutually agreed that upon any such breach or any threat thereof in connection with\nEmployees obligations under Paragraph 5, 6, 7, 8, 9 or 10 of this Agreement, Company will be entitled to seek appropriate equitable relief, without\nbond, in addition to whatever remedies it might have at law in connection with any breach or enforcement of Employee’s obligations hereunder or\nthe unauthorized use or release of any Confidential Information, Inventions, and/or Work Product. Employee will notify Company in writing\nimmediately upon the occurrence of any such unauthorized release or other breach of which Employee becomes aware.\n19. Arbitration of Disputes. In the event any legal or equitable claims or disputes arise out of or relate to Employee’s employment with\nCompany, the terms and conditions of employment, or the termination of employment, except as provided for in paragraph 17, the employee and\nCompany agree that any such claim or dispute will be settled by binding arbitration. This agreement to arbitrate applies to the following allegations,\ndisputes, and claims for relief, but is not limited to those listed: wrongful discharge under statutory law and common law; employment\ndiscrimination based on federal, state or local statute, ordinance or governmental regulations, including but not limited to Title VII of the Civil\nRights Act of 1964 and amendments thereto, 42 U.S .C. § 1981, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the\nFair Labor Standards Act, the Equal Pay Act, the Pregnancy Discrimination Act, the Older Workers Benefit Protection Act, the Occupational Health\nand Safety Act and the Kansas Act Against Discrimination and Kansas Age Discrimination in Employment Act; retaliatory discharge or other action;\ncompensation disputes; tortious conduct; contractual violations (although no contractual relationship, other than at-will employment and this\nagreement to arbitrate, is hereby created); ERISA violations; and other statutory and common law claims and disputes, regardless of whether the\nstatute was enacted or whether the common law doctrine was recognized at the time this Agreement was signed. Nothing herein shall be construed to\nlimit the arbitrability of a controversy or dispute which would otherwise be arbitrable under the Federal Arbitration Act. The arbitration proceedings\nshall be conducted in Kansas City, Missouri in accordance with the Rules of the American Arbitration Association (AAA) in effect at the time a\ndemand for arbitration is made. Employee is entitled to representation by an attorney throughout the proceedings at his or her own expense. The\narbitrator(s) shall have full power and authority to issue remedies in accordance with federal and state statutory and common law. The decision and\naward shall be exclusive, final, and binding on both parties, their heirs, executors, administrators, successors and assigns. The costs and expenses of\nthe arbitration shall be borne by Employee and Company as set forth in the AAA\nRules and in accordance with applicable law. Both parties understand that by agreeing to submit any claims or disputes described above to\narbitration, they are waiving their right to have their disputes resolved in court. However, this substitution of arbitration for litigation involves\nno surrender, by either party, of any substantive statutory or common law benefit, protection or defense. This provision is not intended to add to,\ncreate or imply any contractual or other right of employment. The parties’ employment relationship is at-will, and no other inference shall be drawn\nfrom this provision.\n20. Prior Agreements and Amendments. Employee hereby acknowledges receipt of a signed counterpart of this Agreement and\nacknowledges that it is Employee’s entire agreement with Company concerning the subject matter, thereby canceling, terminating and superseding\nany previous oral or written understandings or agreements with Company or any officer or representative of Company. Nothing in this Agreement\nwill be deemed to limit the right of Company to terminate employment of Employee at will, with or without cause. No amendment or modification\nof this Agreement will be valid or binding upon Company unless made in writing and signed by an officer of Company or upon Employee unless\nmade in writing and signed by him.\n21. Waiver. Employee’s or Company’s failure to insist upon strict compliance with any provision hereof or any other provision of this\nAgreement or the failure to assert any right Employee or Company may have hereunder will not be deemed to be a waiver or subsequent breach of\nsuch provision or right or any other provision or right of this Agreement.\n22. Successors. This Agreement is personal to the Employee and without the prior written consent of the Company shall not be assignable by\nthe Employee. This Agreement shall inure to the benefit of and be enforceable by the Employee’s legal representatives. This Agreement shall inure\nto the benefit of and be binding upon the Company and its successors and assigns.\n23. Notices. Any notice required by this Agreement or given in connection with it, will be in writing and will be given to the appropriate party\nby personal delivery, or by certified mail, postage prepaid, or recognized overnight delivery service.\nIf to Company:\nBATS Exchange, Inc.\n8050 Marshall Drive, Ste. 120\nLenexa, KS 66214\nAttention: HR Manager\nIf to Employee:\nJeromee Johnson\n46 Tanbark Rd\nSudbury, MA 01776\n24. EMPLOYEE’S UNDERSTANDING. EMPLOYEE HAS READ AND REVIEWED THIS ENTIRE AGREEMENT AND HAS HAD\nTHE OPPORTUNITY TO REVIEW AND DISCUSS THIS AGREEMENT WITH COUNSEL OF HIS CHOOSING. EMPLOYEE\nUNDERSTANDS THE PROVISIONS HEREOF AND THE SIGNIFICANCE AND IMPORTANCE OF THE PROVISIONS THEREOF. I\nUNDERSTAND THAT THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY\nEITHER PARTY. I ALSO UNDERSTAND THAT AS A CONDITION OF EMPLOYMENT AND CONTINUED EMPLOYMENT, I\nAGREE TO SUBMIT ANY COMPLAINTS TO AN ARBITRATOR(S) AND AGREE TO ABIDE BY AND ACCEPT THE FINAL\nDECISION OF THE ARBITRATOR(S) AS THE ULTIMATE RESOLUTION OF MY COMPLAINT(S) FOR ANY AND ALL EVENTS\nTHAT ARISE OUT OF MY EMPLOYMENT OR TERMINATION OF EMPLOYMENT AS PROVIDED FOR IN THIS AGREEMENT.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed effective the date first written above.\nCOMPANY:\nEMPLOYEE:\nBATS Exchange, Inc.\n/s/ Joe Ratterman\n/s/ Jeromee Johnson\nSignature\nName: Jeromee Johnson\nCEO\nTitle	EX-10.9 13 dex109.htm EMPLOYMENT AND CONFIDENTIALITY/NON-COMPETITION AGREEMENT -\nJOHNSON\nExhibit 10.9\nBATS EMPLOYMENT AND\nCONFIDENTIALITY/NON-COMPETITION AGREEMENT\nTHIS AGREEMENT is made, entered into and effective as of March 9th, 2009, by and between BATS Exchange, Inc., a Delaware\ncorporation (hereinafter “Company”) and Jeromee Johnson, an individual (hereinafter “Employee”).\nWHEREAS, Company is engaged in the business of operating a registered national securities exchange, and any other legal business\nactivities; and\nWHEREAS, Company desires to hire Employee or to continue to employ Employee, and Employee desires to be hired by the Company or to\ncontinue to be employed by the Company, upon the terms and conditions set forth herein; and\nWHEREAS, Company desires to protect the interests of Company and Company’s customers and Confidential Information that may have\nbeen or that may be disclosed to Employee.\nNOW, THEREFORE, in consideration of the foregoing, of the mutual promises contained herein, the Employee’s employment and/or\ncontinued employment with the Company, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,\nthe parties agree as follows:\n1. Employment. Company hereby employs Employee and Employee accepts such employment, upon the terms and conditions hereinafter set\nforth. Employee agrees to devote Employee’s full business time to the affairs of Company and not to engage, either as an employee, partner,\nconsultant or otherwise, in any other business activity, without giving prior written notification to the Company. Employee agrees that at all times\nduring the term hereof Employee will faithfully perform the duties assigned by Company to the best of Employee’s ability. Employee acknowledges\nthat from time to time the Company may promulgate workplace policies and rules. Employee agrees to fully comply with all such policies and rules\nand understands that failure to do so may result in disciplinary action up to and including immediate discharge.\n2. Term. The term of this Agreement will commence as of the effective date of this Agreement first written above and shall continue until the\ntermination of Employee’s employment, provided, however, that the provisions of this Agreement which are intended to continue and survive after\nthe termination of this Agreement shall so continue and survive. Employment under this Agreement is “at will” which means that the employment\nrelationship between Employee and Company may be terminated at any time by either party with or without cause, with or without advance\nnotice. Notwithstanding the foregoing, Company requests, but does not require, that Employee provide at least fourteen (14) calendar days advance\nnotice of intent to terminate employment.\n3. Compensation. As compensation for the services to be rendered by Employee pursuant to this Agreement, Company will pay Employee\nsuch compensation as the Company\nshall determine, from time to time, payable on a payment schedule as the Company shall determine, but not less frequently than monthly. Such\ncompensation shall terminate upon termination of Employee’s employment hereunder. Employee also will be entitled to such other Company\nemployee benefits as are generally accorded to Company’s employees in accordance with established Company policies as they are revised from\ntime to time.\n4. Definitions. For purposes of this Agreement, the following definitions will apply:\n(a) “Inventions” means:\n(i) All inventions, designs, diagrams, schematics, algorithms, creative works, codes, improvements, modifications and\nenhancements, whether or not protected or protectable by laws relating to patents or copyrights, which are made or conceived by\nEmployee during Employee’s employment by Company, regardless whether reduced to practice during the term of this employment.\n(b) “Work Product” means all Inventions, documentation, drawings, databases, records, software, creative works, know-how and\ninformation created, in whole or in part, by Employee during Employee’s employment by Company, whether or not protected or protectable by\nlaws relating to patents or copyrights, including, but not limited to, all designs, methodologies, procedures, manuals, program listings, source\ncodes, working papers and other documentation and information related thereto.\n(c) “Confidential Information” means all financial information, customer lists, lists or other documents related to business prospects,\ndocumentation, software, flow charts, programming code, software diagrams, product plans, know-how, data and information relating to the\npast, present or future business or products of Company or any plans therefore, or relating to the past, present or future business or products of\na third party or plans therefore that are disclosed to Company, which Company does not intentionally or routinely disclose to third parties\nwithout restrictions on use or further disclosure. Confidential Information may include, but is not necessarily limited to, information that meets\nthe legal definition of “trade secret.” Employee acknowledges that the Company has taken reasonable and prudent measures to protect its\nConfidential Information including requiring Employee to execute this Agreement.\n5. Ownership and Protection of Inventions and Work Product. Company will be the exclusive owner of all Inventions and Work Product.\n(a) Employee will promptly disclose to Company all Inventions and keep accurate records relating to the conception and reduction to\npractice of all Inventions. Such records will be the exclusive property of Company, and Employee will surrender possession of such records to\nCompany upon the request of the Company or upon termination of Employee’s employment with Company, including all memoranda, notes,\nrecords, drawings, manuals, computer software, source code, and other documents and materials, and all copies thereof, and electronically\nstored versions thereof. Employee will promptly disclose to Company any and all ideas and concepts which\nEmployee may from time to time have or originate that: (i) relate to the business of Company; (ii) result from or are suggested by any work\nwhich Employee has done or may do for or on behalf of Company; or (iii) are developed, tested, improved, investigated or authored in whole\nor in part during time for which Employee was paid by Company or using any resources of Company.\n(b) Employee hereby assigns to Company, without additional consideration to Employee, the entire right, title and interest in and to the\nInventions and Work Product, all registrations or applications for registrations of rights based thereon, and in and to all other proprietary rights\nbased thereon. Employee will execute all such assignments, oaths, declarations and other documents as may be requested by Company to\nreflect the foregoing. Upon the request of the Company, or upon termination of employment, Employee will surrender to Company all\nmemoranda, notes, records, drawings, manuals, computer software, source code, and other documents and materials, and all copies thereof,\nand electronically stored versions thereof, pertaining to the Work Product.\n(c) Employee will cooperate with and provide Company with all information, documentation and assistance that Company may request\nto perfect, enforce or defend the proprietary rights in or based on the Inventions, Work Product or Confidential Information. Company, in its\nsole discretion, will determine the extent of the proprietary rights, if any, to be protected in or based on the Inventions and Work Product. All\nsuch information, documentation and assistance will be provided at no additional expense to Company, except for out-of-pocket expenses that\nEmployee may incur at Company’s request.\n(d) All Inventions and Work Product made or created by Employee will be original works and will not infringe on the rights of any third\nparty.\n(e) Notwithstanding the foregoing, this Agreement will not apply to any Invention for which no equipment, supplies, facility or\nConfidential Information of Company was used and that was developed entirely on Employee’s own time, unless:\n(i) The Invention relates directly to the business or products of Company or to Company’s actual or demonstrably anticipated\nresearch or development; or\n(ii) The Invention results from any work performed by Employee for Company.\n6. Employee Obligations Concerning Confidential Information.\n(a) During the term of Employee’s employment with Company and in perpetuity thereafter, Employee will treat Confidential Information\non a strictly confidential basis and not disclose Confidential Information to others without the prior written permission of Company, or use\nConfidential Information for any purpose, other than for the performance of services for Company.\n(b) Employee acknowledges that Confidential Information as defined herein is the sole and exclusive property of Company. Employee\nwill surrender possession of all Confidential Information to Company upon any suspension or termination of Employee’s employment with\nCompany for any reason. If, after the suspension or termination of Employee’s employment, Employee becomes aware that documents and/or\nelectronically stored data containing Company’s Confidential Information are in his possession or control, Employee will immediately\nsurrender possession of the same to Company.\n7. Proprietary Information of Others. Company understands that Employee may possess proprietary information of third parties and that\nEmployee may have ongoing obligations to third parties with respect thereto. Company expressly requires that Employee will honor such ongoing\nobligations to such third parties and that Employee will not use for the benefit of Company, or disclose to Company, any such proprietary\ninformation.\n8. Company Property. Employee agrees to take all reasonable precautions and actions necessary to safeguard and maintain Company’s\nproperty and equipment in normal operating condition, and Employee agrees to accept financial responsibility for damage or wear to property or\nequipment beyond that associated with normal business use. Employee agrees to notify Company upon any loss or damage to Company’s property\nand equipment. Upon termination, Employee will immediately return and surrender to Company all property and equipment of Company.\n9. Employee’s Obligations in Connection with Company’s Status as a Self-Regulatory Organization. Employee acknowledges that the\nCompany is a self-regulatory organization as that term is defined in the Securities Exchange Act of 1934 and that as a result, the Company and\nEmployee are required to comply with certain statutory obligations applicable to self regulatory organizations. As such, Employee covenants and\nagrees that he:\n(a) Will take no action to interfere with the Company’s ability to carry out its self-regulatory function.\n(b) Will maintain confidential all books and records of the Company pertaining to the self-regulatory function of the Company (including\nbut not limited to disciplinary matters, trading data, trading practices and audit information) that shall come into possession of the Company\nand shall not use such information for any non-regulatory purpose.\n(c) Will comply with the federal securities laws and the rules and regulations thereunder and shall cooperate with the Securities and\nExchange Commission (“SEC”) and the Company pursuant to and to the extent of their respective regulatory authority, including in respect of\nthe SEC’s oversight responsibilities regarding the Company, and the self regulatory functions and responsibilities of the Company.\n(d) Consents to the jurisdiction of the United States federal courts, the SEC, and the Company, for purposes of any suit, action or\nproceeding pursuant to the\nUnited States federal securities laws, and the rules or regulations thereunder, arising out of, or relating to, the activities of the Company, and\nwaives and agrees not to assert by way of motion, as a defense or otherwise in such suit, action, or proceeding, any claims that he is not\npersonally subject to the jurisdiction of the United States federal courts, the SEC, or the Company, that the suit, action or proceeding is an\ninconvenient forum or that the venue of the suit, action or proceeding is improper, or that the subject matter of the suit, action or proceeding\nmay not be enforced in or by such courts or agency.\n10. Competitive Activities.\n(a) During the term of Employee’s employment with the Company and for two (2) years following termination of Employee’s\nemployment for any reason, Employee will not anywhere within the United States or Canada:\n(i) Perform any services anywhere within the United States or Canada, directly or indirectly, for any person or entity whose primary\nbusiness is the operation of a displayed market for the trading of financial instruments.\n(ii) Own, directly or indirectly, an interest in any entity whose primary business is the operation of a displayed market for the\ntrading of financial instruments, except through mutual funds or similar widely diversified investment pools.\n(b) During the period of two (2) years after termination of Employee’s employment with the Company for any reason, Employee will\nnot, directly or indirectly, whether as an employee, representative, officer, director, shareholder, principal or consultant for any entity, compete\nwith the Company by soliciting or accepting the order execution business of any Customer or Prospect of the Company in the United States or\nCanada.\n(i) “Prospect” is defined as any entity or individual to whom the Company has made a sales presentation, either by telephone, in\nwriting or in person and/or submitted a proposal in order to solicit its business during the twelve (12) months preceding termination of\nEmployee’s employment for any reason.\n(ii) “Customer” is defined as any entity or individual: 1) with whom the Company had a contractual relationship at any time during\nthe twelve (12) months preceding termination of employment; or, 2) from whom the Company received payment for services or products\nof any kind during the twelve (12) months preceding termination of employment for any reason.\nDuring the period of two (2) years after termination of Employee’s employment with the Company for any reason, Employee will not, directly or\nindirectly, hire, cause to be hired, or induce any other party to hire other employees of the Company or persons who were employees of the Company\nwhile Employee was an employee of the Company.\n11. Restrictions on Performance of Agreement. Employee warrants and represents that he has the ability to enter into this Agreement and\nperform all obligations hereunder, and that there are no restrictions or obligations to third parties which would in any way detract from or affect\nEmployee’s performance hereunder.\n12. Reasonableness of Restrictions. The parties hereto hereby acknowledge that the foregoing paragraphs are reasonable and necessary for\nthe protection of the Company. Employee acknowledges that the business of the Company is highly competitive and because the Company’s\nbusiness activities are national in scope, the time and geographic restrictions on competition contained in this section of this Agreement are\nnecessary to protect the Company’s business and confidential information. In addition, the Employee further acknowledges that the Company will be\nirreparably harmed if such covenants are not specifically enforced.\n13. Governing Law and Choice of Venue. This Agreement will be governed by and interpreted in accordance with the laws of the State of\nKansas. The parties hereto agree to submit to the jurisdiction of the courts of Kansas for the purposes of enforcement of this Agreement or any action\nthat may arise relating to the employment relationship or the enforcement of this Agreement by Employee and Company. The parties further agree\nthat any such action must be brought in a court of competent jurisdiction sitting in the State of Kansas.\n14. Severability. Each of the sections contained in this Agreement will be enforceable independently of every other section in this Agreement,\nand the invalidity or unenforceability of any section will not invalidate or render unenforceable any other section contained in this Agreement.\nEmployee acknowledges that the restrictive covenants contained in this Agreement are a condition of this Agreement and are reasonable and valid in\ngeographical and temporal scope and in all other respects. If any court determines that any of the covenants contained herein, or any part of any of\nthem, is invalid or unenforceable, the remainder of such covenants and parts thereof will not thereby be affected and will be given full effect, without\nregard to the invalid portion. If any court determines that any of such covenants, or any part thereof, is invalid or unenforceable because of the\ngeographic or temporal scope of such provision, such court will reduce such scope only to the extent necessary to make such covenants valid and\nenforceable.\n15. Survival of Certain Provisions. Any termination or expiration of this Agreement or suspension of termination of Employee’s employment\nby Company notwithstanding, the provisions of this Agreement that are intended to continue and survive will so continue and survive. This\nAgreement and all rights hereunder will inure to the benefit of Company, its successors and assigns.\n16. Accounting for Profits. Employee covenants and agrees that, if he violates any of his covenants or agreements hereunder, Company will\nbe entitled to an accounting and repayment of all profits, compensation, commissions, remunerations or benefits which Employee\ndirectly or indirectly has realized and/or may realize as a result of, growing out of or in connection with any such violation.\n17. Cumulative Remedies and Fees. All rights and remedies of Company will be cumulative and Company will have the right to obtain\nspecific performance against Employee for the enforcement of this Agreement. In addition to its other remedies, Employee agrees that should\nCompany elect to remedy any actual or threatened breach of this Agreement by filing suit, Company will be entitled to a judgment and award against\nEmployee in an amount equal to Company’s reasonable attorney’s fees and costs associated with enforcement of any term of this Agreement.\n18. Equitable Relief. Employee acknowledges that, due to the unique nature of the Confidential Information, Inventions, and Work Product,\nthere may be no adequate remedy at law for any breach of the obligations hereunder, and that any such breach may allow Employee or third parties\nto unfairly compete with Company. For that reason, it is mutually agreed that upon any such breach or any threat thereof in connection with\nEmployees obligations under Paragraph 5, 6, 7, 8, 9 or 10 of this Agreement, Company will be entitled to seek appropriate equitable relief, without\nbond, in addition to whatever remedies it might have at law in connection with any breach or enforcement of Employee’s obligations hereunder or\nthe unauthorized use or release of any Confidential Information, Inventions, and/or Work Product. Employee will notify Company in writing\nimmediately upon the occurrence of any such unauthorized release or other breach of which Employee becomes aware.\n19. Arbitration of Disputes. In the event any legal or equitable claims or disputes arise out of or relate to Employee’s employment with\nCompany, the terms and conditions of employment, or the termination of employment, except as provided for in paragraph 17, the employee and\nCompany agree that any such claim or dispute will be settled by binding arbitration. This agreement to arbitrate applies to the following allegations,\ndisputes, and claims for relief, but is not limited to those listed: wrongful discharge under statutory law and common law; employment\ndiscrimination based on federal, state or local statute, ordinance or governmental regulations, including but not limited to Title VII of the Civil\nRights Act of 1964 and amendments thereto, 42 U.S.C. § 1981, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the\nFair Labor Standards Act, the Equal Pay Act, the Pregnancy Discrimination Act, the Older Workers Benefit Protection Act, the Occupational Health\nand Safety Act and the Kansas Act Against Discrimination and Kansas Age Discrimination in Employment Act; retaliatory discharge or other action;\ncompensation disputes; tortious conduct; contractual violations (although no contractual relationship, other than at-will employment and this\nagreement to arbitrate, is hereby created); ERISA violations; and other statutory and common law claims and disputes, regardless of whether the\nstatute was enacted or whether the common law doctrine was recognized at the time this Agreement was signed. Nothing herein shall be construed to\nlimit the arbitrability of a controversy or dispute which would otherwise be arbitrable under the Federal Arbitration Act. The arbitration proceedings\nshall be conducted in Kansas City, Missouri in accordance with the Rules of the American Arbitration Association (AAA) in effect at the time a\ndemand for arbitration is made. Employee is entitled to representation by an attorney throughout the proceedings at his or her own expense. The\narbitrator(s) shall have full power and authority to issue remedies in accordance with federal and state statutory and common law. The decision and\naward shall be exclusive, final, and binding on both parties, their heirs, executors, administrators, successors and assigns. The costs and expenses of\nthe arbitration shall be borne by Employee and Company as set forth in the AAA\nRules and in accordance with applicable law. Both parties understand that by agreeing to submit any claims or disputes described above to\narbitration, they are waiving their right to have their disputes resolved in court. However, this substitution of arbitration for litigation involves\nno surrender, by either party, of any substantive statutory or common law benefit, protection or defense. This provision is not intended to add to,\ncreate or imply any contractual or other right of employment. The parties’ employment relationship is at-will, and no other inference shall be drawn\nfrom this provision.\n20. Prior Agreements and Amendments. Employee hereby acknowledges receipt of a signed counterpart of this Agreement and\nacknowledges that it is Employee’s entire agreement with Company concerning the subject matter, thereby canceling, terminating and superseding\nany previous oral or written understandings or agreements with Company or any officer or representative of Company. Nothing in this Agreement\nwill be deemed to limit the right of Company to terminate employment of Employee at will, with or without cause. No amendment or modification\nof this Agreement will be valid or binding upon Company unless made in writing and signed by an officer of Company or upon Employee unless\nmade in writing and signed by him.\n21. Waiver. Employee’s or Company’s failure to insist upon strict compliance with any provision hereof or any other provision of this\nAgreement or the failure to assert any right Employee or Company may have hereunder will not be deemed to be a waiver or subsequent breach of\nsuch provision or right or any other provision or right of this Agreement.\n22. Successors. This Agreement is personal to the Employee and without the prior written consent of the Company shall not be assignable by\nthe Employee. This Agreement shall inure to the benefit of and be enforceable by the Employee’s legal representatives. This Agreement shall inure\nto the benefit of and be binding upon the Company and its successors and assigns.\n23. Notices. Any notice required by this Agreement or given in connection with it, will be in writing and will be given to the appropriate party\nby personal delivery, or by certified mail, postage prepaid, or recognized overnight delivery service.\nIf to Company:\nBATS Exchange, Inc.\n8050 Marshall Drive, Ste. 120\nLenexa, KS 66214\nAttention: HR Manager\nIf to Employee:\nJeromee Johnson\n46 Tanbark Rd\nSudbury, MA 01776\n24. EMPLOYEE’S UNDERSTANDING. EMPLOYEE HAS READ AND REVIEWED THIS ENTIRE AGREEMENT AND HAS HAD\nTHE OPPORTUNITY TO REVIEW AND DISCUSS THIS AGREEMENT WITH COUNSEL OF HIS CHOOSING. EMPLOYEE\nUNDERSTANDS THE PROVISIONS HEREOF AND THE SIGNIFICANCE AND IMPORTANCE OF THE PROVISIONS THEREOF. 1\nUNDERSTAND THAT THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY\nEITHER PARTY. I ALSO UNDERSTAND THAT AS A CONDITION OF EMPLOYMENT AND CONTINUED EMPLOYMENT, I\nAGREE TO SUBMIT ANY COMPLAINTS TO AN ARBITRATOR(S) AND AGREE TO ABIDE BY AND ACCEPT THE FINAL\nDECISION OF THE ARBITRATOR(S) AS THE ULTIMATE RESOLUTION OF MY COMPLAINT(S) FOR ANY AND ALL EVENTS\nTHAT ARISE OUT OF MY EMPLOYMENT OR TERMINATION OF EMPLOYMENT AS PROVIDED FOR IN THIS AGREEMENT.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed effective the date first written above.\nCOMPANY: EMPLOYEE:\nBATS Exchange, Inc.\n/s/ Joe Ratterman /s/ Jeromee Johnson\nSignature Name: Jeromee Johnson\nCEO\nTitle	EX-10.9 13 dex109.htm EMPLOYMENT AND CONFIDENTIALITY/NON-COMPETITION AGREEMENT\nJOHNSON\nExhibit 10.9\nBATS EMPLOYMENT AND\nCONFIDENTIALITYNON-COMPETITION/ AGREEMENT\nTHIS AGREEMENT is made, entered into and effective as of March 9th, 2009, by and between BATS Exchange, Inc., a Delaware\ncorporation (hereinafter "Company") and Jeromee Johnson, an individual (hereinafter "Employee").\nWHEREAS, Company is engaged in the business of operating a registered national securities exchange, and any other legal business\nactivities; and\nWHEREAS, Company desires to hire Employee or to continue to employ Employee, and Employee desires to be hired by the Company or to\ncontinue to be employed by the Company, upon the terms and conditions set forth herein; and\nWHEREAS, Company desires to protect the interests of Company and Company's customers and Confidential Information that may have\nbeen or that may be disclosed to Employee.\nNOW, THEREFORE, in consideration of the foregoing, of the mutual promises contained herein, the Employee's employment and/or\ncontinued employment with the Company, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,\nthe parties agree as follows:\n1. Employment. Company hereby employs Employee and Employee accepts such employment, upon the terms and conditions hereinafter set\nforth. Employee agrees to devote Employee's full business time to the affairs of Company and not to engage, either as an employee, partner,\nconsultant or otherwise, in any other business activity, without giving prior written notification to the Company. Employee agrees that at all times\nduring the term hereof Employee will faithfully perform the duties assigned by Company to the best of Employee's ability. Employee acknowledges\nthat from time to time the Company may promulgate workplace policies and rules. Employee agrees to fully comply with all such policies and rules\nand understands that failure to do so may result in disciplinary action up to and including immediate discharge.\n2. Term. The term of this Agreement will commence as of the effective date of this Agreement first written above and shall continue until the\ntermination of Employee's employment, provided, however, that the provisions of this Agreement which are intended to continue and survive after\nthe termination of this Agreement shall so continue and survive. Employment under this Agreement is "at will" which means that the employment\nrelationship between Employee and Company may be terminated at any time by either party with or without cause, with or without advance\nnotice. Notwithstanding the foregoing, Company requests, but does not require, that Employee provide at least fourteen (14) calendar days advance\nnotice of intent to terminate employment.\n3. Compensation. As compensation for the services to be rendered by Employee pursuant to this Agreement, Company will pay Employee\nsuch compensation as the Company\nshall determine, from time to time, payable on a payment schedule as the Company shall determine, but not less frequently than monthly. Such\ncompensation shall terminate upon termination of Employee's employment hereunder. Employee also will be entitled to such other Company\nemployee benefits as are generally accorded to Company's employees in accordance with established Company policies as they are revised from\ntime to time.\n4. Definitions. For purposes of this Agreement, the following definitions will apply:\n(a) "Inventions" means:\n(i) All inventions, designs, diagrams, schematics, algorithms, creative works, codes, improvements, modifications and\nenhancements, whether or not protected or protectable by laws relating to patents or copyrights, which are made or conceived by\nEmployee during Employee's employment by Company, regardless whether reduced to practice during the term of this employment.\n(b) "Work Product" means all Inventions, documentation, drawings, databases, records, software, creative works, know-how and\ninformation created, in whole or in part, by Employee during Employee's employment by Company, whether or not protected or protectable by\nlaws relating to patents or copyrights, including, but not limited to, all designs, methodologies, procedures, manuals, program listings, source\ncodes, working papers and other documentation and information related thereto.\n(c) "Confidential Information" means all financia information, customer lists, lists or other documents related to business prospects,\ndocumentation, software, flow charts, programming code, software diagrams, product plans, know-how, data and information relating to the\npast, present or future business or products of Company or any plans therefore, or relating to the past, present or future business or products of\na third party or plans therefore that are disclosed to Company, which Company does not intentionally or routinely disclose to third parties\nwithout\nrestrictions\non\nuse\nor\nfurther\ndisclosure.\nConfidential\nInformation\nmay\ninclude,\nbut\nis\nnot\nnecessarily\nlimited\nto,\ninformation\nthat\nmeets\nthe legal definition of "trade secret." Employee acknowledges that the Company has taken reasonable and prudent measures to protect its\nConfidential Information including requiring Employee to execute this Agreement.\n5. Ownership and Protection of Inventions and Work Product. Company will be the exclusive owner of all Inventions and Work Product.\n(a) Employee will promptly disclose to Company all Inventions and keep accurate records relating to the conception and reduction to\npractice of all Inventions. Such records will be the exclusive property of Company, and Employee will surrender possession of such records\nto\nCompany upon the request of the Company or upon termination of Employee's employment with Company, including all memoranda, notes,\nrecords, drawings, manuals, computer software, source code, and other documents and materials, and all copies thereof, and electronically\nstored versions thereof. Employee will promptly disclose to Company any and all ideas and concepts which\nEmployee may from time to time have or originate that: (i) relate to the business of Company; (ii) result from or are suggested by any work\nwhich Employee has done or may do for or on behalf of Company; or (iii) are developed, tested, improved, investigated or authored in whole\nor in part during time for which Employee was paid by Company or using any resources of Company.\n(b) Employee hereby assigns to Company, without additional consideration to Employee, the entire right, title and interest in and to the\nInventions and Work Product, all registrations or applications for registrations of rights based thereon, and in and to all other proprietary rights\nbased thereon. Employee will execute all such assignments, oaths, declarations and other documents as may be requested by Company to\nreflect the foregoing. Upon the request of the Company, or upon termination of employment, Employee will surrender to Company all\nmemoranda, notes, records, drawings, manuals, computer software, source code, and other documents and materials, and all copies thereof,\nand electronically stored versions thereof, pertaining to the Work Product.\n(c) Employee will cooperate with and provide Company with all information, documentation and assistance that Company may request\nto perfect, enforce or defend the proprietary rights in or based on the Inventions, Work Product or Confidential Information. Company, in its\nsole discretion, will determine the extent of the proprietary rights, if any, to be protected in or based on the Inventions and Work Product. All\nsuch information, documentation and assistance will be provided at no additional expense to Company, except for out-of-pocket expenses that\nEmployee may incur at Company's request.\n(d) All Inventions and Work Product made or created by Employee will be original works and will not infringe on the rights of any third\nparty.\n(e) Notwithstanding the foregoing, this Agreement will not apply to any Invention for which no equipment, supplies, facility or\nConfidential Information of Company was used and that was developed entirely on Employee's own time, unless:\n(i) The Invention relates directly to the business or products of Company or to Company's actual or demonstrably anticipated\nresearch or development; or\n(ii) The Invention results from any work performed by Employee for Company.\n6. Employee Obligations Concerning Confidential Information.\n(a) During the term of Employee's employment with Company and in perpetuity thereafter, Employee will treat Confidential Information\non a strictly. confidential basis and not disclose Confidential Information to others without the prior written permission of Company, or use\nConfidential Information for any purpose, other than for the performance of services for Company.\n(b) Employee acknowledges that Confidential Information as defined herein is the sole and exclusive property of Company. Employee\nwill surrender possession of all Confidential Information to Company upon any suspension or termination of Employee's employment with\nCompany for any reason. If, after the suspension or termination of Employee's employment, Employee becomes aware that documents and/or\nelectronically stored data containing Company's Confidential Information are in his possession or control, Employee will immediately.\nsurrender possession of the same to Company.\n7. Proprietary Information of Others. Company understands that Employee may possess proprietary information of third parties and that\nEmployee may have ongoing obligations to third parties with respect thereto. Company expressly requires that Employee will honor such ongoing\nobligations to such third parties and that Employee will not use for the benefit of Company, or disclose to Company, any such proprietary\ninformation.\n8.\nCompany Property. Employee agrees to take all reasonable precautions and actions necessary to safeguard and maintain Company's\nproperty and equipment in normal operating condition, and Employee agrees to accept financial responsibility for damage or wear to property or\nequipment beyond that associated with normal business use. Employee agrees to notify Company upon any loss or damage to Company's property\nand equipment. Upon termination, Employee will immediately return and surrender to Company all property and equipment of Company.\n9. Employee's Obligations in Connection with Company's Status as a Self-Regulatory Organization. Employee acknowledges that the\nCompany\nis\na\nself-regulatory organization as that term is defined in the Securities Exchange Act of 1934 and that as a result, the Company and\nEmployee are required to comply with certain statutory obligations applicable to self regulatory organizations. As such, Employee covenants and\nagrees that he:\n(a) Will take no action to interfere with the Company's ability to carry out its self-regulatory function.\n(b) Will maintain confidential all books and records of the Company pertaining to the self-regulatory function of the Company (including\nbut not limited to disciplinary matters, trading data, trading practices and audit information) that shall come into possession of the Company\nand shall not use such information for any non-regulatory purpose.\n(c) Will comply with the federal securities laws and the rules and regulations thereunder and shall cooperate with the Securities and\nExchange Commission ("SEC") and the Company pursuant to and to the extent of their respective regulatory authority, including in respect\nof\nthe SEC's oversight responsibilities regarding the Company, and the self regulatory functions and responsibilities of the Company.\n(d) Consents to the jurisdiction of the United States federal courts, the SEC, and the Company, for purposes of any suit, action or\nproceeding pursuant to the\nUnited States federal securities laws, and the rules or regulations thereunder, arising out of, or relating to, the activities of the Company, and\nwaives and agrees not to assert by way of motion, as a defense or otherwise in such suit, action, or proceeding, any claims that he is not\npersonally subject to the jurisdiction of the United States federal courts, the SEC, or the Company, that the suit, action or proceeding is an\ninconvenient forum or that the venue of the suit, action or proceeding is improper, or that the subject matter of the suit, action or proceeding\nmay not be enforced in or by such courts or agency.\n10. Competitive Activities.\n(a) During the term of Employee's employment with the Company and for two (2) years following termination of Employee's\nemployment for any reason, Employee will not anywhere within the United States or Canada:\n(i) Perform any services anywhere within the United States or Canada, directly or indirectly, for any person or entity whose primary\nbusiness is the operation of a displayed market for the trading of financial instruments.\n(ii) Own, directly or indirectly, an interest in any entity whose primary business is the operation of a displayed market for the\ntrading of financial instruments, except through mutual funds or similar widely diversified investment pools.\n(b) During the period of two (2) years after termination of Employee's employment with the Company for any reason, Employee will\nnot, directly or indirectly, whether as an employee, representative, officer, director, shareholder, principal or consultant for any entity, compete\nwith the Company by soliciting or accepting the order execution business of any Customer or Prospect of the Company in the United States or\nCanada.\n(i) "Prospect" is defined as any entity or individual to whom the Company has made a sales presentation, either by telephone, in\nwriting or in person and/or submitted a proposal in order to solicit its business during the twelve (12) months preceding termination of\nEmployee's employment for any reason.\n(ii) "Customer" is defined as any entity or individual: 1) with whom the Company had a contractual relationship at any time during\nthe twelve (12) months preceding termination of employment; or, 2) from whom the Company received payment for services or products\nof any kind during the twelve (12) months preceding termination of employment for any reason.\nDuring the period of two (2) years after termination of Employee's employment with the Company for any reason, Employee will not, directly or\nindirectly, hire, cause to be hired, or induce any other party to hire other employees of the Company or persons who were employees of the Company\nwhile Employee was an employee of the Company.\n11. Restrictions on Performance of Agreement. Employee warrants and represents that he has the ability to enter into this Agreement and\nperform all obligations hereunder, and that there are no restrictions or obligations to third parties which would in any way detract from or affect\nEmployee's performance hereunder.\n12. Reasonableness of Restrictions. The parties hereto hereby acknowledge that the foregoing paragraphs are reasonable and necessary for\nthe protection of the Company. Employee acknowledges that the business of the Company is highly competitive and because the Company's\nbusiness activities are national in scope, the time and geographic restrictions on competition contained in this section of this Agreement are\nnecessary to protect the Company's business and confidential information. In addition, the Employee further acknowledges that the Company will be\nirreparably harmed if such covenants are not specifically enforced.\n13. Governing Law and Choice of Venue. This Agreement will be governed by and interpreted in accordance with the laws of the State of\nKansas. The parties hereto agree to submit to the jurisdiction of the courts of Kansas for the purposes of enforcement of this Agreement or any action\nthat may arise relating to the employment relationship or the enforcement of this Agreement by Employee and Company. The parties further agree\nthat any such action must be brought in a court of competent jurisdiction sitting in the State of Kansas.\n14. Severability. Each of the sections contained in this Agreement will be enforceable independently of every other section in this Agreement,\nand the invalidity or unenforceability of any section will not invalidate or render unenforceable any other section contained in this Agreement.\nEmployee acknowledges that the restrictive covenants contained in this Agreement are a condition of this Agreement and are reasonable and valid in\ngeographical and temporal scope and in all other respects. If any court determines that any of the covenants contained herein, or any part of any of\nthem, is invalid or unenforceable, the remainder of such covenants and parts thereof will not thereby be affected and will be given full effect, without\nregard to the invalid portion. If any court determines that any of such covenants, or any part thereof, is invalid or unenforceable because of the\ngeographic or temporal scope of such provision, such court will reduce such scope only to the extent necessary to make such covenants valid and\nenforceable.\n15. Survival of Certain Provisions. Any termination or expiration of this Agreement or suspension of termination of Employee's employment\nby Company notwithstanding, the provisions of this Agreement that are intended to continue and survive will so continue and survive. This\nAgreement and all rights hereunder will inure to the benefit of Company, its successors and assigns.\n16. Accounting for Profits. Employee covenants and agrees that, if he violates any of his covenants or agreements hereunder, Company will\nbe entitled to an accounting and repayment of all profits, compensation, commissions, remunerations or benefits which Employee\ndirectly or indirectly has realized and/or may realize as a result of, growing out of or in connection with any such violation.\n17.\nCumulative Remedies and Fees. All rights and remedies of Company will be cumulative and Company will have the right to obtain\nspecific performance against Employee for the enforcement of this Agreement. In addition to its other remedies, Employee agrees that should\nCompany elect to remedy any actual or threatened breach of this Agreement by filing suit, Company will be entitled to a judgment and award against\nEmployee in an amount equal to Company's reasonable attorney's fees and costs associated with enforcement of any term of this Agreement.\n18. Equitable Relief. Employee acknowledges that, due to the unique nature of the Confidentia Information, Inventions, and Work Product,\nthere may be no adequate remedy at law for any breach of the obligations hereunder, and that any such breach may allow Employee or third parties\nto unfairly compete with Company. For that reason, it is mutually agreed that upon any such breach or any threat thereof in connection with\nEmployees obligations under Paragraph 5, 6, 7, 8, 9 or 10 of this Agreement, Company will be entitled to seek appropriate equitable relief, without\nbond, in addition to whatever remedies it might have at law in connection with any breach or enforcement of Employee's obligations hereunder\nor\nthe unauthorized use or release of any Confidential Information, Inventions, and/or Work Product. Employee will notify Company in writing\nimmediately upon the occurrence of any such unauthorized release or other breach of which Employee becomes aware.\n19. Arbitration of Disputes. In the event any legal or equitable claims or disputes arise out of or relate to Employee's employment with\nCompany, the terms and conditions of employment, or the termination of employment, except as provided for in paragraph 17, the employee and\nCompany agree that any such claim or dispute will be settled by binding arbitration. This agreement to arbitrate applies to the following allegations,\ndisputes, and claims for relief, but is not limited to those listed: wrongful discharge under statutory law and common law; employment\ndiscrimination based on federal, state or local statute, ordinance or governmental regulations, including but not limited to Title VII of the Civil\nRights\nAct\nof\n1964\nand\namendments\nthereto,\n42\nU.S.C.\nS\n1981,\nthe\nAge\nDiscrimination\nin\nEmployment\nAct,\nthe\nAmericans\nwith\nDisabilities\nAct,\nthe\nFair Labor Standards Act, the Equal Pay Act, the Pregnancy Discrimination Act, the Older Workers Benefit Protection Act, the Occupational Health\nand Safety Act and the Kansas Act Against Discrimination and Kansas Age Discrimination in Employment Act; retaliatory discharge or other action;\ncompensation disputes; tortious conduct; contractual violations (although no contractual relationship, other than at-will employment and this\nagreement to arbitrate, is hereby created); ERISA violations; and other statutory and common law claims and disputes, regardless of whether the\nstatute was enacted or whether the common law doctrine was recognized at the time this Agreement was signed. Nothing herein shall be construed to\nlimit the arbitrability of a controversy or dispute which would otherwise be arbitrable under the Federal Arbitration Act. The arbitration proceedings\nshall be conducted in Kansas City, Missouri in accordance with the Rules of the American Arbitration Association (AAA) in effect at the time a\ndemand for arbitration is made. Employee is entitled to representation by an attorney throughout the proceedings at his or her own expense. The\narbitrator(s) shall have full power and authority to issue remedies in accordance with federal and state statutory and common law. The decision and\naward shall be exclusive, final, and binding on both parties, their heirs, executors, administrators, successors and assigns. The costs and expenses of\nthe arbitration shall be borne by Employee and Company as set forth in the AAA\nRules and in accordance with applicable law. Both parties understand that by agreeing to submit any claims or disputes described above to\narbitration, they are waiving their right to have their disputes resolved in court. However, this substitution of arbitration for litigation involves\nno surrender, by either party, of any substantive statutory or common law benefit, protection or defense. This provision is not intended to add\nto,\ncreate or imply any contractual or other right of employment. The parties' employment relationship is at-will, and no other inference shall be drawn\nfrom this provision.\n20. Prior Agreements and Amendments. Employee hereby acknowledges receipt of a signed counterpart of this Agreement and\nacknowledges that it is Employee's entire agreement with Company concerning the subject matter, thereby canceling, terminating and superseding\nany previous oral or written understandings or agreements with Company or any officer or representative of Company. Nothing in this Agreement\nwill be deemed to limit the right of Company to terminate employment of Employee at will, with or without cause. No amendment or modification\nof this Agreement will be valid or binding upon Company unless made in writing and signed by an officer of Company or upon Employee unless\nmade in writing and signed by him.\n21. Waiver. Employee's or Company's failure to insist upon strict compliance with any provision hereof or any other provision of this\nAgreement or the failure to assert any right Employee or Company may have hereunder will not be deemed to be a waiver or subsequent breach of\nsuch provision or right or any other provision or right of this Agreement.\n22. Successors. This Agreement is personal to the Employee and without the prior written consent of the Company shall not be assignable by\nthe Employee. This Agreement shall inure to the benefit of and be enforceable by the Employee's legal representatives. This Agreement shall inure\nto the benefit of and be binding upon the Company and its successors and assigns.\n23. Notices. Any notice required by this Agreement or given in connection with it, will be in writing and will be given to the appropriate party\nby personal delivery, or by certified mail, postage prepaid, or recognized overnight delivery service.\nIf to Company:\nBATS Exchange, Inc.\n8050 Marshall Drive, Ste. 120\nLenexa, KS 66214\nAttention: HR Manager\nIf to Employee:\nJeromee Johnson\n46 Tanbark Rd\nSudbury, MA 01776\n24. EMPLOYEE'S UNDERSTANDING. EMPLOYEE HAS READ AND REVIEWED THIS ENTIRE AGREEMENT AND HAS HAD\nTHE OPPORTUNITY TO REVIEW AND DISCUSS THIS AGREEMENT WITH COUNSEL OF HIS CHOOSING. EMPLOYEE\nUNDERSTANDS THE PROVISIONS HEREOF AND THE SIGNIFICANCE AND IMPORTANCE OF THE PROVISIONS THEREOF. I\nUNDERSTAND THAT THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY\nEITHER PARTY. IALSO UNDERSTAND THAT AS A CONDITION OF EMPLOYMENT AND CONTINUED EMPLOYMENT, I\nAGREE TO SUBMIT ANY COMPLAINTS TO AN ARBITRATOR(S) AND AGREE TO ABIDE BY AND ACCEPT THE FINAL\nDECISION OF THE ARBITRATOR(S) AS THE ULTIMATE RESOLUTION OF MY COMPLAINT(S) FOR ANY AND ALL EVENTS\nTHAT ARISE OUT OF MY EMPLOYMENT OR TERMINATION OF EMPLOYMENT AS PROVIDED FOR IN THIS AGREEMENT.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed effective the date first written above.\nCOMPANY:\nEMPLOYEE:\nBATS Exchange, Inc.\n/s/ Joe Ratterman\n/s/ Jeromee Johnson\nSignature\nName: Jeromee Johnson\nCEO\nTitle	EX-10.9 13 dex109.htm EMPLOYMENT AND CONFIDENTIALITY/NON-COMPETITION AGREEMENT -\nJOHNSON\nExhibit 10.9\nBATS EMPLOYMENT AND\nCONFIDENTIALITY/NON-COMPETITION AGREEMENT\nTHIS AGREEMENT is made, entered into and effective as of March 9th, 2009, by and between BATS Exchange, Inc., a Delaware\ncorporation (hereinafter “Company”) and Jeromee Johnson, an individual (hereinafter “Employee”).\nWHEREAS, Company is engaged in the business of operating a registered national securities exchange, and any other legal business\nactivities; and\nWHEREAS, Company desires to hire Employee or to continue to employ Employee, and Employee desires to be hired by the Company or to\ncontinue to be employed by the Company, upon the terms and conditions set forth herein; and\nWHEREAS, Company desires to protect the interests of Company and Company’s customers and Confidential Information that may have\nbeen or that may be disclosed to Employee.\nNOW, THEREFORE, in consideration of the foregoing, of the mutual promises contained herein, the Employee’s employment and/or\ncontinued employment with the Company, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,\nthe parties agree as follows:\n1. Employment. Company hereby employs Employee and Employee accepts such employment, upon the terms and conditions hereinafter set\nforth. Employee agrees to devote Employee’s full business time to the affairs of Company and not to engage, either as an employee, partner,\nconsultant or otherwise, in any other business activity, without giving prior written notification to the Company. Employee agrees that at all times\nduring the term hereof Employee will faithfully perform the duties assigned by Company to the best of Employee’s ability. Employee acknowledges\nthat from time to time the Company may promulgate workplace policies and rules. Employee agrees to fully comply with all such policies and rules\nand understands that failure to do so may result in disciplinary action up to and including immediate discharge.\n2. Term. The term of this Agreement will commence as of the effective date of this Agreement first written above and shall continue until the\ntermination of Employee’s employment, provided, however, that the provisions of this Agreement which are intended to continue and survive after\nthe termination of this Agreement shall so continue and survive. Employment under this Agreement is “at will” which means that the employment\nrelationship between Employee and Company may be terminated at any time by either party with or without cause, with or without advance\nnotice. Notwithstanding the foregoing, Company requests, but does not require, that Employee provide at least fourteen (14) calendar days advance\nnotice of intent to terminate employment.\n3. Compensation. As compensation for the services to be rendered by Employee pursuant to this Agreement, Company will pay Employee\nsuch compensation as the Company\nshall determine, from time to time, payable on a payment schedule as the Company shall determine, but not less frequently than monthly. Such\ncompensation shall terminate upon termination of Employee’s employment hereunder. Employee also will be entitled to such other Company\nemployee benefits as are generally accorded to Company’s employees in accordance with established Company policies as they are revised from\ntime to time.\n4. Definitions. For purposes of this Agreement, the following definitions will apply:\n(a) “Inventions” means:\n(i) All inventions, designs, diagrams, schematics, algorithms, creative works, codes, improvements, modifications and\nenhancements, whether or not protected or protectable by laws relating to patents or copyrights, which are made or conceived by\nEmployee during Employee’s employment by Company, regardless whether reduced to practice during the term of this employment.\n(b) “Work Product” means all Inventions, documentation, drawings, databases, records, software, creative works, know-how and\ninformation created, in whole or in part, by Employee during Employee’s employment by Company, whether or not protected or protectable by\nlaws relating to patents or copyrights, including, but not limited to, all designs, methodologies, procedures, manuals, program listings, source\ncodes, working papers and other documentation and information related thereto.\n(c) “Confidential Information” means all financial information, customer lists, lists or other documents related to business prospects,\ndocumentation, software, flow charts, programming code, software diagrams, product plans, know-how, data and information relating to the\npast, present or future business or products of Company or any plans therefore, or relating to the past, present or future business or products of\na third party or plans therefore that are disclosed to Company, which Company does not intentionally or routinely disclose to third parties\nwithout restrictions on use or further disclosure. Confidential Information may include, but is not necessarily limited to, information that meets\nthe legal definition of “trade secret.” Employee acknowledges that the Company has taken reasonable and prudent measures to protect its\nConfidential Information including requiring Employee to execute this Agreement.\n5. Ownership and Protection of Inventions and Work Product. Company will be the exclusive owner of all Inventions and Work Product.\n(a) Employee will promptly disclose to Company all Inventions and keep accurate records relating to the conception and reduction to\npractice of all Inventions. Such records will be the exclusive property of Company, and Employee will surrender possession of such records to\nCompany upon the request of the Company or upon termination of Employee’s employment with Company, including all memoranda, notes,\nrecords, drawings, manuals, computer software, source code, and other documents and materials, and all copies thereof, and electronically\nstored versions thereof. Employee will promptly disclose to Company any and all ideas and concepts which\nEmployee may from time to time have or originate that: (i) relate to the business of Company; (ii) result from or are suggested by any work\nwhich Employee has done or may do for or on behalf of Company; or (iii) are developed, tested, improved, investigated or authored in whole\nor in part during time for which Employee was paid by Company or using any resources of Company.\n(b) Employee hereby assigns to Company, without additional consideration to Employee, the entire right, title and interest in and to the\nInventions and Work Product, all registrations or applications for registrations of rights based thereon, and in and to all other proprietary rights\nbased thereon. Employee will execute all such assignments, oaths, declarations and other documents as may be requested by Company to\nreflect the foregoing. Upon the request of the Company, or upon termination of employment, Employee will surrender to Company all\nmemoranda, notes, records, drawings, manuals, computer software, source code, and other documents and materials, and all copies thereof,\nand electronically stored versions thereof, pertaining to the Work Product.\n(c) Employee will cooperate with and provide Company with all information, documentation and assistance that Company may request\nto perfect, enforce or defend the proprietary rights in or based on the Inventions, Work Product or Confidential Information. Company, in its\nsole discretion, will determine the extent of the proprietary rights, if any, to be protected in or based on the Inventions and Work Product. All\nsuch information, documentation and assistance will be provided at no additional expense to Company, except for out-of-pocket expenses that\nEmployee may incur at Company’s request.\n(d) All Inventions and Work Product made or created by Employee will be original works and will not infringe on the rights of any third\nparty.\n(e) Notwithstanding the foregoing, this Agreement will not apply to any Invention for which no equipment, supplies, facility or\nConfidential Information of Company was used and that was developed entirely on Employee’s own time, unless:\n(i) The Invention relates directly to the business or products of Company or to Company’s actual or demonstrably anticipated\nresearch or development; or\n(ii) The Invention results from any work performed by Employee for Company.\n6. Employee Obligations Concerning Confidential Information.\n(a) During the term of Employee’s employment with Company and in perpetuity thereafter, Employee will treat Confidential Information\non a strictly confidential basis and not disclose Confidential Information to others without the prior written permission of Company, or use\nConfidential Information for any purpose, other than for the performance of services for Company.\n(b) Employee acknowledges that Confidential Information as defined herein is the sole and exclusive property of Company. Employee\nwill surrender possession of all Confidential Information to Company upon any suspension or termination of Employee’s employment with\nCompany for any reason. If, after the suspension or termination of Employee’s employment, Employee becomes aware that documents and/or\nelectronically stored data containing Company’s Confidential Information are in his possession or control, Employee will immediately\nsurrender possession of the same to Company.\n7. Proprietary Information of Others. Company understands that Employee may possess proprietary information of third parties and that\nEmployee may have ongoing obligations to third parties with respect thereto. Company expressly requires that Employee will honor such ongoing\nobligations to such third parties and that Employee will not use for the benefit of Company, or disclose to Company, any such proprietary\ninformation.\n8. Company Property. Employee agrees to take all reasonable precautions and actions necessary to safeguard and maintain Company’s\nproperty and equipment in normal operating condition, and Employee agrees to accept financial responsibility for damage or wear to property or\nequipment beyond that associated with normal business use. Employee agrees to notify Company upon any loss or damage to Company’s property\nand equipment. Upon termination, Employee will immediately return and surrender to Company all property and equipment of Company.\n9. Employee’s Obligations in Connection with Company’s Status as a Self-Regulatory Organization. Employee acknowledges that the\nCompany is a self-regulatory organization as that term is defined in the Securities Exchange Act of 1934 and that as a result, the Company and\nEmployee are required to comply with certain statutory obligations applicable to self regulatory organizations. As such, Employee covenants and\nagrees that he:\n(a) Will take no action to interfere with the Company’s ability to carry out its self-regulatory function.\n(b) Will maintain confidential all books and records of the Company pertaining to the self-regulatory function of the Company (including\nbut not limited to disciplinary matters, trading data, trading practices and audit information) that shall come into possession of the Company\nand shall not use such information for any non-regulatory purpose.\n(c) Will comply with the federal securities laws and the rules and regulations thereunder and shall cooperate with the Securities and\nExchange Commission (“SEC”) and the Company pursuant to and to the extent of their respective regulatory authority, including in respect of\nthe SEC’s oversight responsibilities regarding the Company, and the self regulatory functions and responsibilities of the Company.\n(d) Consents to the jurisdiction of the United States federal courts, the SEC, and the Company, for purposes of any suit, action or\nproceeding pursuant to the\nUnited States federal securities laws, and the rules or regulations thereunder, arising out of, or relating to, the activities of the Company, and\nwaives and agrees not to assert by way of motion, as a defense or otherwise in such suit, action, or proceeding, any claims that he is not\npersonally subject to the jurisdiction of the United States federal courts, the SEC, or the Company, that the suit, action or proceeding is an\ninconvenient forum or that the venue of the suit, action or proceeding is improper, or that the subject matter of the suit, action or proceeding\nmay not be enforced in or by such courts or agency.\n10. Competitive Activities.\n(a) During the term of Employee’s employment with the Company and for two (2) years following termination of Employee’s\nemployment for any reason, Employee will not anywhere within the United States or Canada:\n(i) Perform any services anywhere within the United States or Canada, directly or indirectly, for any person or entity whose primary\nbusiness is the operation of a displayed market for the trading of financial instruments.\n(ii) Own, directly or indirectly, an interest in any entity whose primary business is the operation of a displayed market for the\ntrading of financial instruments, except through mutual funds or similar widely diversified investment pools.\n(b) During the period of two (2) years after termination of Employee’s employment with the Company for any reason, Employee will\nnot, directly or indirectly, whether as an employee, representative, officer, director, shareholder, principal or consultant for any entity, compete\nwith the Company by soliciting or accepting the order execution business of any Customer or Prospect of the Company in the United States or\nCanada.\n(i) “Prospect” is defined as any entity or individual to whom the Company has made a sales presentation, either by telephone, in\nwriting or in person and/or submitted a proposal in order to solicit its business during the twelve (12) months preceding termination of\nEmployee’s employment for any reason.\n(ii) “Customer” is defined as any entity or individual: 1) with whom the Company had a contractual relationship at any time during\nthe twelve (12) months preceding termination of employment; or, 2) from whom the Company received payment for services or products\nof any kind during the twelve (12) months preceding termination of employment for any reason.\nDuring the period of two (2) years after termination of Employee’s employment with the Company for any reason, Employee will not, directly or\nindirectly, hire, cause to be hired, or induce any other party to hire other employees of the Company or persons who were employees of the Company\nwhile Employee was an employee of the Company.\n11. Restrictions on Performance of Agreement. Employee warrants and represents that he has the ability to enter into this Agreement and\nperform all obligations hereunder, and that there are no restrictions or obligations to third parties which would in any way detract from or affect\nEmployee’s performance hereunder.\n12. Reasonableness of Restrictions. The parties hereto hereby acknowledge that the foregoing paragraphs are reasonable and necessary for\nthe protection of the Company. Employee acknowledges that the business of the Company is highly competitive and because the Company’s\nbusiness activities are national in scope, the time and geographic restrictions on competition contained in this section of this Agreement are\nnecessary to protect the Company’s business and confidential information. In addition, the Employee further acknowledges that the Company will be\nirreparably harmed if such covenants are not specifically enforced.\n13. Governing Law and Choice of Venue. This Agreement will be governed by and interpreted in accordance with the laws of the State of\nKansas. The parties hereto agree to submit to the jurisdiction of the courts of Kansas for the purposes of enforcement of this Agreement or any action\nthat may arise relating to the employment relationship or the enforcement of this Agreement by Employee and Company. The parties further agree\nthat any such action must be brought in a court of competent jurisdiction sitting in the State of Kansas.\n14. Severability. Each of the sections contained in this Agreement will be enforceable independently of every other section in this Agreement,\nand the invalidity or unenforceability of any section will not invalidate or render unenforceable any other section contained in this Agreement.\nEmployee acknowledges that the restrictive covenants contained in this Agreement are a condition of this Agreement and are reasonable and valid in\ngeographical and temporal scope and in all other respects. If any court determines that any of the covenants contained herein, or any part of any of\nthem, is invalid or unenforceable, the remainder of such covenants and parts thereof will not thereby be affected and will be given full effect, without\nregard to the invalid portion. If any court determines that any of such covenants, or any part thereof, is invalid or unenforceable because of the\ngeographic or temporal scope of such provision, such court will reduce such scope only to the extent necessary to make such covenants valid and\nenforceable.\n15. Survival of Certain Provisions. Any termination or expiration of this Agreement or suspension of termination of Employee’s employment\nby Company notwithstanding, the provisions of this Agreement that are intended to continue and survive will so continue and survive. This\nAgreement and all rights hereunder will inure to the benefit of Company, its successors and assigns.\n16. Accounting for Profits. Employee covenants and agrees that, if he violates any of his covenants or agreements hereunder, Company will\nbe entitled to an accounting and repayment of all profits, compensation, commissions, remunerations or benefits which Employee\ndirectly or indirectly has realized and/or may realize as a result of, growing out of or in connection with any such violation.\n17. Cumulative Remedies and Fees. All rights and remedies of Company will be cumulative and Company will have the right to obtain\nspecific performance against Employee for the enforcement of this Agreement. In addition to its other remedies, Employee agrees that should\nCompany elect to remedy any actual or threatened breach of this Agreement by filing suit, Company will be entitled to a judgment and award against\nEmployee in an amount equal to Company’s reasonable attorney’s fees and costs associated with enforcement of any term of this Agreement.\n18. Equitable Relief. Employee acknowledges that, due to the unique nature of the Confidential Information, Inventions, and Work Product,\nthere may be no adequate remedy at law for any breach of the obligations hereunder, and that any such breach may allow Employee or third parties\nto unfairly compete with Company. For that reason, it is mutually agreed that upon any such breach or any threat thereof in connection with\nEmployees obligations under Paragraph 5, 6, 7, 8, 9 or 10 of this Agreement, Company will be entitled to seek appropriate equitable relief, without\nbond, in addition to whatever remedies it might have at law in connection with any breach or enforcement of Employee’s obligations hereunder or\nthe unauthorized use or release of any Confidential Information, Inventions, and/or Work Product. Employee will notify Company in writing\nimmediately upon the occurrence of any such unauthorized release or other breach of which Employee becomes aware.\n19. Arbitration of Disputes. In the event any legal or equitable claims or disputes arise out of or relate to Employee’s employment with\nCompany, the terms and conditions of employment, or the termination of employment, except as provided for in paragraph 17, the employee and\nCompany agree that any such claim or dispute will be settled by binding arbitration. This agreement to arbitrate applies to the following allegations,\ndisputes, and claims for relief, but is not limited to those listed: wrongful discharge under statutory law and common law; employment\ndiscrimination based on federal, state or local statute, ordinance or governmental regulations, including but not limited to Title VII of the Civil\nRights Act of 1964 and amendments thereto, 42 U.S .C. § 1981, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the\nFair Labor Standards Act, the Equal Pay Act, the Pregnancy Discrimination Act, the Older Workers Benefit Protection Act, the Occupational Health\nand Safety Act and the Kansas Act Against Discrimination and Kansas Age Discrimination in Employment Act; retaliatory discharge or other action;\ncompensation disputes; tortious conduct; contractual violations (although no contractual relationship, other than at-will employment and this\nagreement to arbitrate, is hereby created); ERISA violations; and other statutory and common law claims and disputes, regardless of whether the\nstatute was enacted or whether the common law doctrine was recognized at the time this Agreement was signed. Nothing herein shall be construed to\nlimit the arbitrability of a controversy or dispute which would otherwise be arbitrable under the Federal Arbitration Act. The arbitration proceedings\nshall be conducted in Kansas City, Missouri in accordance with the Rules of the American Arbitration Association (AAA) in effect at the time a\ndemand for arbitration is made. Employee is entitled to representation by an attorney throughout the proceedings at his or her own expense. The\narbitrator(s) shall have full power and authority to issue remedies in accordance with federal and state statutory and common law. The decision and\naward shall be exclusive, final, and binding on both parties, their heirs, executors, administrators, successors and assigns. The costs and expenses of\nthe arbitration shall be borne by Employee and Company as set forth in the AAA\nRules and in accordance with applicable law. Both parties understand that by agreeing to submit any claims or disputes described above to\narbitration, they are waiving their right to have their disputes resolved in court. However, this substitution of arbitration for litigation involves\nno surrender, by either party, of any substantive statutory or common law benefit, protection or defense. This provision is not intended to add to,\ncreate or imply any contractual or other right of employment. The parties’ employment relationship is at-will, and no other inference shall be drawn\nfrom this provision.\n20. Prior Agreements and Amendments. Employee hereby acknowledges receipt of a signed counterpart of this Agreement and\nacknowledges that it is Employee’s entire agreement with Company concerning the subject matter, thereby canceling, terminating and superseding\nany previous oral or written understandings or agreements with Company or any officer or representative of Company. Nothing in this Agreement\nwill be deemed to limit the right of Company to terminate employment of Employee at will, with or without cause. No amendment or modification\nof this Agreement will be valid or binding upon Company unless made in writing and signed by an officer of Company or upon Employee unless\nmade in writing and signed by him.\n21. Waiver. Employee’s or Company’s failure to insist upon strict compliance with any provision hereof or any other provision of this\nAgreement or the failure to assert any right Employee or Company may have hereunder will not be deemed to be a waiver or subsequent breach of\nsuch provision or right or any other provision or right of this Agreement.\n22. Successors. This Agreement is personal to the Employee and without the prior written consent of the Company shall not be assignable by\nthe Employee. This Agreement shall inure to the benefit of and be enforceable by the Employee’s legal representatives. This Agreement shall inure\nto the benefit of and be binding upon the Company and its successors and assigns.\n23. Notices. Any notice required by this Agreement or given in connection with it, will be in writing and will be given to the appropriate party\nby personal delivery, or by certified mail, postage prepaid, or recognized overnight delivery service.\nIf to Company:\nBATS Exchange, Inc.\n8050 Marshall Drive, Ste. 120\nLenexa, KS 66214\nAttention: HR Manager\nIf to Employee:\nJeromee Johnson\n46 Tanbark Rd\nSudbury, MA 01776\n24. EMPLOYEE’S UNDERSTANDING. EMPLOYEE HAS READ AND REVIEWED THIS ENTIRE AGREEMENT AND HAS HAD\nTHE OPPORTUNITY TO REVIEW AND DISCUSS THIS AGREEMENT WITH COUNSEL OF HIS CHOOSING. EMPLOYEE\nUNDERSTANDS THE PROVISIONS HEREOF AND THE SIGNIFICANCE AND IMPORTANCE OF THE PROVISIONS THEREOF. I\nUNDERSTAND THAT THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY\nEITHER PARTY. I ALSO UNDERSTAND THAT AS A CONDITION OF EMPLOYMENT AND CONTINUED EMPLOYMENT, I\nAGREE TO SUBMIT ANY COMPLAINTS TO AN ARBITRATOR(S) AND AGREE TO ABIDE BY AND ACCEPT THE FINAL\nDECISION OF THE ARBITRATOR(S) AS THE ULTIMATE RESOLUTION OF MY COMPLAINT(S) FOR ANY AND ALL EVENTS\nTHAT ARISE OUT OF MY EMPLOYMENT OR TERMINATION OF EMPLOYMENT AS PROVIDED FOR IN THIS AGREEMENT.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed effective the date first written above.\nCOMPANY:\nEMPLOYEE:\nBATS Exchange, Inc.\n/s/ Joe Ratterman\n/s/ Jeromee Johnson\nSignature\nName: Jeromee Johnson\nCEO\nTitle
88b6197728e20c8e0bc3732615d5f3d8.pdf	effective_date jurisdiction party term	NON-DISCLOSURE AGREEMENT\nDated as of July 25, 2016\nThis Non-Disclosure Agreement (this “Agreement”) is entered into as of the date first set forth above by and between Carolco Pictures, Inc., a\nFlorida corporation (the “Company”), and the person whose name is set forth on the signature page hereof adjacent to “Recipient” (the\n“Recipient”, and together with the Company, the “Parties” and each individually, a “Party”).\nWHEREAS, Recipient is an employee or officer of Company and will obtain certain Confidential Information (as defined below) of Company in\nconnection with such relationship, and the Parties desire to provide for certain matters related to such Confidential Information as set forth\nherein; and\nWHEREAS, the Parties agree that the terms and conditions of this Agreement shall apply to any and all discussions involving or related to the\nprovision of Confidential Information to Recipient.\nNOW THEREFORE, in consideration of the promises and covenants contained herein, and for other good and valuable consideration, the receipt\nand sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:\n1. The purpose of this Agreement is to allow Recipient to obtain from the Company certain technical and business information of the\nCompany under terms that will protect the confidential and proprietary nature of such information, for the purpose of furthering the\nParties’ relationship (the “Purpose”).\n2. As used in this Agreement, “Confidential Information” shall mean any and all information furnished or disclosed, in whatever form\nor medium, by the Company or its Representatives (as defined below) to Recipient or his Representatives, and shall include all\ninformation relating to the Company, including, but not limited to:\na. any data or information that is competitively sensitive material, including but not limited to products, planning\ninformation, marketing strategies and opportunities, price lists, plans, finance, operations, customer relationships or\npotential customer relationships, customer profiles, partner relationships or potential partner relationships, advertising and\npublic relation relationships or potential advertising and public relation relationships, sales estimates, business plan and\ninternal performances results relating to the past, present or future business activities of the Company or its owners, or the\nCompany’s customers, clients, manufacturers, vendors, employees or suppliers;\nb. all concepts, documentation reports, data, specifications, notes, drawings, diagrams, computer software, source code,\nobject code, flow charts, databases, inventions, information, know-how, show-how and trade secrets, whether or not\npatentable or copyrightable regarding the Company’s business;\nc. all customer, client, employee, vendor, or supplier lists; and\nd. such other information as the Company may identify to the Recipient as being confidential or privileged by means of a\nnotation or confidential legend on the applicable document.\n3. Recipient agrees to use Confidential Information only for the Purpose and shall use reasonable care not to disclose Confidential\nInformation to any third party, such care to be at least equal to the care exercised by Recipient as to its own confidential information,\nwhich standard of care shall not be less than the current industry standard in effect as of the date of such receipt. Recipient agrees that it\nshall make disclosure of any such Confidential Information only to employees (including temporary and leased employees subject to a\nconfidentiality obligation), officers, directors, attorneys and wholly owned subsidiaries (collectively, “Representatives”), to whom\ndisclosure is reasonably necessary for the Purpose. Notwithstanding anything to the contrary contained herein, the Parties acknowledge\nand agree that Recipient may, with notice to the Company, disclose any Confidential Information as and to the extent that Recipient’s\ncounsel deems required pursuant to any law or governmental regulation, or pursuant to the order of a court or administrative body of\ncompetent jurisdiction provided, however, that in such case Recipient shall inform the Company prior to such disclosure and shall only\ndisclose so much of the Confidential Information as may be required for compliance with such law or governmental regulation and\nprovided that Recipient shall cooperate with Company to legally contest, request confidential treatment, or otherwise avoid such\ndisclosure, as requested by the Company.\n4. Upon termination of this Agreement for any reason, or upon the termination of Recipient’s relationship with the Company or upon\nrequest by the Company made at any time, all Confidential Information, together with any copies of same as may be authorized herein,\nshall be returned to the Company, or destroyed and certified as such by Recipient.\n5. The obligations imposed in this Agreement shall not apply to any Confidential Information that: (i) was already in the possession of\nRecipient at the time of disclosure without restrictions on its use or is independently developed by Recipient after the effective date of\nthis Agreement, provided that the person or persons developing same have not used any Confidential Information in such development,\nor is rightfully obtained from a source other than from the Company; (ii) is in the public domain at the time of disclosure or\nsubsequently becomes available to the general public through no fault of Recipient; (iii) is obtained by Recipient from a third person\nwho is under no obligation of confidence to the Company; or (iv) is disclosed without restriction by the Company.\n6. Each Party acknowledges that this Agreement and any meetings and communications of the Parties and their affiliates relating to the\nsame subject matter hereof shall not constitute a representation, warranty, assurance, guarantee or inducement with respect to the\naccuracy or completeness of any Confidential Information or the non-infringement of the rights of third persons.\n7. Neither this Agreement nor any rights hereunder shall be assignable or otherwise transferable by either Party in whole or in part\nwithout the prior written consent of the other Party.\n8. Nothing herein shall be construed as granting to Recipient or its affiliates any right or license to use or practice any of the information\ndefined herein as Confidential Information and which is subject to this Agreement as well as any trade secrets, know-how, copyrights,\ninventions, patents or other intellectual property rights now or hereafter owned or controlled by the Company. Except as allowed by\napplicable law, Recipient shall not use any tradename, service mark or trademark of the Company or refer to the Company in any\npromotional or sales activity or materials without first obtaining the prior written consent of the Company.\n9. The Company makes no representations or warranties with respect to any information disclosed by it to Recipient except that the\nCompany hereby represents and warrants to Recipient that the Company has the legal right and power to disclose any information\ndisclosed by it hereunder.\n10. This Agreement shall be governed and construed under the laws of the State of Florida, without regard to its conflict of laws\nprinciples. Recipient hereby acknowledges and agrees that remedies at law will be inadequate to protect the Company from any actual\nor threatened breach of this Agreement and that any such breach would cause irreparable and continuing injury to the Company.\nTherefore, Recipient agrees that the Company shall be entitled to seek equitable relief without any requirement to post a bond,\nincluding, without limitation, injunction and specific performance, without proof of actual damages or exhausting other remedies, in\naddition to all other remedies available to the Parties at law or in equity.\n11. Any notice to be given under this Agreement by either Party to the other Party shall be in writing and sent to an officer at its address\nset forth on the signature pages hereof by certified or registered mail or by overnight air courier, or by email with return receipt\nrequested and received, and shall be deemed received three days after deposit in the mail or with such courier, properly addressed,\npostage prepaid, or upon receipt of a return receipt is sent by email. If either Party changes its address during the term of this\nAgreement, it shall notify the other Party at its address set forth above in the manner provided in the preceding sentence.\n12. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement. No\nprovision of this Agreement shall be deemed waived, amended or modified by either Party, unless such waiver, amendment or\nmodification is made in writing and signed by both Parties. Each Party agrees that no failure or delay by the other in exercising any\nright, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or\nfurther exercise thereof or the exercise of any right, power or privilege hereunder. This Agreement contains all the terms of the Parties’\nagreements with respect to the subject matter hereof and supersedes all previous agreements between the Parties relating to the subject\nmatter hereof.\n13. In the event any provision of this Agreement is deemed invalid or otherwise unenforceable for any reason, such invalid portion shall\nbe deleted and the Agreement shall continue in effect for all other purposes. A faxed or copied version of this document has the same\neffect and meaning as the original.\n14. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall\nconstitute one and the same instrument, binding upon all of the Parties. In pleading or proving any provision of this Agreement, it shall\nnot be necessary to produce more than one set of such counterparts. Delivery of an executed counterpart of a signature page to this\nAgreement by facsimile shall be effective as delivery of a manually executed counterpart of this Agreement.\n15. This Agreement may be terminated at any time by either Party giving thirty (30) days prior written notice to the other Party. Unless\nearlier terminated, this Agreement shall terminate and be of no further force or effect on the cessation of Recipient’s employment by, or\nservice as an officer to, the Company. The obligations of the Parties under paragraphs 2, 3, 4, 5, and 12 of this Agreement shall survive\nsuch termination for a period of three (3) years.\n[Signatures appear on following page]\nIN WITNESS WHEREOF, the Parties, intending to be legally bound hereby, have caused their duly authorized representatives to sign this\nAgreement as of the date indicated above.\nCarolco Pictures, Inc.\nBy:\nDavid Cohen\nCEO\nAddress for Notices:\nDavid Cohen\nChief Executive Officer\nCarolco Pictures, Inc.\n1200 N. Federal Highway, Suite 200\nBoca Raton, FL 33432\nEmail: dc@carolcopictures.com\nRecipient: ____________________________\nBy: __________________________________\nName: __________________________________\nAddress for Notices:\n______________________________\n______________________________\n______________________________\n______________________________\nEmail: ________________________	NON-DISCLOSURE AGREEMENT\nDated as of July 25, 2016\nThis Non-Disclosure Agreement (this “Agreement”) is entered into as of the date first set forth above by and between Carolco Pictures, Inc., a\nFlorida corporation (the “Company”), and the person whose name is set forth on the signature page hereof adjacent to “Recipient” (the\n“Recipient”, and together with the Company, the “Parties” and each individually, a “Party”).\nWHEREAS, Recipient is an employee or officer of Company and will obtain certain Confidential Information (as defined below) of Company in\nconnection with such relationship, and the Parties desire to provide for certain matters related to such Confidential Information as set forth\nherein; and\nWHEREAS, the Parties agree that the terms and conditions of this Agreement shall apply to any and all discussions involving or related to the\nprovision of Confidential Information to Recipient.\nNOW THEREFORE, in consideration of the promises and covenants contained herein, and for other good and valuable consideration, the receipt\nand sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:\n1. The purpose of this Agreement is to allow Recipient to obtain from the Company certain technical and business information of the\nCompany under terms that will protect the confidential and proprietary nature of such information, for the purpose of furthering the\nParties’ relationship (the “Purpose™).\n2. As used in this Agreement, “Confidential Information” shall mean any and all information furnished or disclosed, in whatever form\nor medium, by the Company or its Representatives (as defined below) to Recipient or his Representatives, and shall include all\ninformation relating to the Company, including, but not limited to:\na. any data or information that is competitively sensitive material, including but not limited to products, planning\ninformation, marketing strategies and opportunities, price lists, plans, finance, operations, customer relationships or\npotential customer relationships, customer profiles, partner relationships or potential partner relationships, advertising and\npublic relation relationships or potential advertising and public relation relationships, sales estimates, business plan and\ninternal performances results relating to the past, present or future business activities of the Company or its owners, or the\nCompany’s customers, clients, manufacturers, vendors, employees or suppliers;\nb. all concepts, documentation reports, data, specifications, notes, drawings, diagrams, computer software, source code,\nobject code, flow charts, databases, inventions, information, know-how, show-how and trade secrets, whether or not\npatentable or copyrightable regarding the Company’s business;\nc. all customer, client, employee, vendor, or supplier lists; and\nd. such other information as the Company may identify to the Recipient as being confidential or privileged by means of a\nnotation or confidential legend on the applicable document.\n3. Recipient agrees to use Confidential Information only for the Purpose and shall use reasonable care not to disclose Confidential\nInformation to any third party, such care to be at least equal to the care exercised by Recipient as to its own confidential information,\nwhich standard of care shall not be less than the current industry standard in effect as of the date of such receipt. Recipient agrees that it\nshall make disclosure of any such Confidential Information only to employees (including temporary and leased employees subject to a\nconfidentiality obligation), officers, directors, attorneys and wholly owned subsidiaries (collectively, “Representatives”), to whom\ndisclosure is reasonably necessary for the Purpose. Notwithstanding anything to the contrary contained herein, the Parties acknowledge\nand agree that Recipient may, with notice to the Company, disclose any Confidential Information as and to the extent that Recipient’s\ncounsel deems required pursuant to any law or governmental regulation, or pursuant to the order of a court or administrative body of\ncompetent jurisdiction provided, however, that in such case Recipient shall inform the Company prior to such disclosure and shall only\ndisclose so much of the Confidential Information as may be required for compliance with such law or governmental regulation and\nprovided that Recipient shall cooperate with Company to legally contest, request confidential treatment, or otherwise avoid such\ndisclosure, as requested by the Company.\n4. Upon termination of this Agreement for any reason, or upon the termination of Recipient’s relationship with the Company or upon\nrequest by the Company made at any time, all Confidential Information, together with any copies of same as may be authorized herein,\nshall be returned to the Company, or destroyed and certified as such by Recipient.\n5. The obligations imposed in this Agreement shall not apply to any Confidential Information that: (i) was already in the possession of\nRecipient at the time of disclosure without restrictions on its use or is independently developed by Recipient after the effective date of\nthis Agreement, provided that the person or persons developing same have not used any Confidential Information in such development,\nor is rightfully obtained from a source other than from the Company; (ii) is in the public domain at the time of disclosure or\nsubsequently becomes available to the general public through no fault of Recipient; (iii) is obtained by Recipient from a third person\nwho is under no obligation of confidence to the Company; or (iv) is disclosed without restriction by the Company.\n6. Each Party acknowledges that this Agreement and any meetings and communications of the Parties and their affiliates relating to the\nsame subject matter hereof shall not constitute a representation, warranty, assurance, guarantee or inducement with respect to the\naccuracy or completeness of any Confidential Information or the non-infringement of the rights of third persons.\n7. Neither this Agreement nor any rights hereunder shall be assignable or otherwise transferable by either Party in whole or in part\nwithout the prior written consent of the other Party.\n8. Nothing herein shall be construed as granting to Recipient or its affiliates any right or license to use or practice any of the information\ndefined herein as Confidential Information and which is subject to this Agreement as well as any trade secrets, know-how, copyrights,\ninventions, patents or other intellectual property rights now or hereafter owned or controlled by the Company. Except as allowed by\napplicable law, Recipient shall not use any tradename, service mark or trademark of the Company or refer to the Company in any\npromotional or sales activity or materials without first obtaining the prior written consent of the Company.\n9. The Company makes no representations or warranties with respect to any information disclosed by it to Recipient except that the\nCompany hereby represents and warrants to Recipient that the Company has the legal right and power to disclose any information\ndisclosed by it hereunder.\n10. This Agreement shall be governed and construed under the laws of the State of Florida, without regard to its conflict of laws\nprinciples. Recipient hereby acknowledges and agrees that remedies at law will be inadequate to protect the Company from any actual\nor threatened breach of this Agreement and that any such breach would cause irreparable and continuing injury to the Company.\nTherefore, Recipient agrees that the Company shall be entitled to seek equitable relief without any requirement to post a bond,\nincluding, without limitation, injunction and specific performance, without proof of actual damages or exhausting other remedies, in\naddition to all other remedies available to the Parties at law or in equity.\n11. Any notice to be given under this Agreement by either Party to the other Party shall be in writing and sent to an officer at its address\nset forth on the signature pages hereof by certified or registered mail or by overnight air courier, or by email with return receipt\nrequested and received, and shall be deemed received three days after deposit in the mail or with such courier, properly addressed,\npostage prepaid, or upon receipt of a return receipt is sent by email. If either Party changes its address during the term of this\nAgreement, it shall notify the other Party at its address set forth above in the manner provided in the preceding sentence.\n12. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement. No\nprovision of this Agreement shall be deemed waived, amended or modified by either Party, unless such waiver, amendment or\nmodification is made in writing and signed by both Parties. Each Party agrees that no failure or delay by the other in exercising any\nright, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or\nfurther exercise thereof or the exercise of any right, power or privilege hereunder. This Agreement contains all the terms of the Parties’\nagreements with respect to the subject matter hereof and supersedes all previous agreements between the Parties relating to the subject\nmatter hereof.\n13. In the event any provision of this Agreement is deemed invalid or otherwise unenforceable for any reason, such invalid portion shall\nbe deleted and the Agreement shall continue in effect for all other purposes. A faxed or copied version of this document has the same\neffect and meaning as the original.\n14. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall\nconstitute one and the same instrument, binding upon all of the Parties. In pleading or proving any provision of this Agreement, it shall\nnot be necessary to produce more than one set of such counterparts. Delivery of an executed counterpart of a signature page to this\nAgreement by facsimile shall be effective as delivery of a manually executed counterpart of this Agreement.\n15. This Agreement may be terminated at any time by either Party giving thirty (30) days prior written notice to the other Party. Unless\nearlier terminated, this Agreement shall terminate and be of no further force or effect on the cessation of Recipient’s employment by, or\nservice as an officer to, the Company. The obligations of the Parties under paragraphs 2, 3, 4, 5, and 12 of this Agreement shall survive\nsuch termination for a period of three (3) years.\n[Signatures appear on following page]\nIN WITNESS WHEREQF, the Parties, intending to be legally bound hereby, have caused their duly authorized representatives to sign this\nAgreement as of the date indicated above.\nCarolco Pictures, Inc.\nBy:\nDavid Cohen\nCEO\nAddress for Notices:\nDavid Cohen\nChief Executive Officer\nCarolco Pictures, Inc.\n1200 N. Federal Highway, Suite 200\nBoca Raton, FL 33432\nEmail: dc@carolcopictures.com\n \nRecipient:\n \nBy:\nName:\n \nAddress for Notices:\n \n \n \n \nEmail:\n	NON-DISCLOSURE AGREEMENT\nDated as of July 25, 2016\nThis Non-Disclosure Agreement (this "Agreement") is entered into as of the date first set forth above by and between Carolco Pictures, Inc., a\nFlorida corporation (the "Company"), and the person whose name is set forth on the signature page hereof adjacent to "Recipient" (the\n"Recipient", and together with the Company, the "Parties" and each individually, a "Party").\nWHEREAS, Recipient is an employee or officer of Company and will obtain certain Confidential Information (as defined below) of Company in\nconnection with such relationship, and the Parties desire to provide for certain matters related to such Confidential Information as set forth\nherein; and\nWHEREAS, the Parties agree that the terms and conditions of this Agreement shall apply to any and all discussions involving or related to the\nprovision of Confidential Information to Recipient.\nNOW THEREFORE, in consideration of the promises and covenants contained herein, and for other good and valuable consideration, the receipt\nand sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:\n1. The purpose of this Agreement is to allow Recipient to obtain from the Company certain technical and business information of the\nCompany under terms that will protect the confidential and proprietary nature of such information, for the purpose of furthering the\nParties' relationship (the "Purpose").\n2. As used in this Agreement, "Confidential Information" shall mean any and all information furnished or disclosed, in whatever form\nor medium, by the Company or its Representatives (as defined below) to Recipient or his Representatives, and shall include all\ninformation relating to the Company, including, but not limited to:\na.\nany data or information that is competitively sensitive material, including but not limited to products, planning\ninformation, marketing strategies and opportunities, price lists, plans, finance, operations, customer relationships or\npotential customer relationships, customer profiles, partner relationships or potential partner relationships, advertising and\npublic relation relationships or potential advertising and public relation relationships, sales estimates, business plan and\ninternal performances results relating to the past, present or future business activities of the Company or its owners, or the\nCompany's customers, clients, manufacturers, vendors, employees or suppliers;\nb. all concepts, documentation reports, data, specifications, notes, drawings, diagrams, computer software, source code,\nobject code, flow charts, databases, inventions, information, know-how, show-how and trade secrets, whether or not\npatentable or copyrightable regarding the Company's business;\nC. all customer, client, employee, vendor, or supplier lists; and\nd.\nsuch other information as the Company may identify to the Recipient as being confidential or privileged by means of a\nnotation or confidential legend on the applicable document.\n3. Recipient agrees to use Confidential Information only for the Purpose and shall use reasonable care not to disclose Confidential\nInformation to any third party, such care to be at least equal to the care exercised by Recipient as to its own confidential information,\nwhich standard of care shall not be less than the current industry standard in effect as of the date of such receipt. Recipient agrees that it\nshall make disclosure of any such Confidential Information only to employees (including temporary and leased employees subject to a\nconfidentiality obligation), officers, directors, attorneys and wholly owned subsidiaries (collectively, "Representatives"), to whom\ndisclosure is reasonably necessary for the Purpose. Notwithstanding anything to the contrary contained herein, the Parties acknowledge\nand agree that Recipient may, with notice to the Company, disclose any Confidential Information as and to the extent that Recipient's\ncounsel deems required pursuant to any law or governmental regulation, or pursuant to the order of a court or administrative body of\ncompetent jurisdiction provided, however, that in such case Recipient shall inform the Company prior to such disclosure and shall only\ndisclose so much of the Confidential Information as may be required for compliance with such law or governmental regulation and\nprovided that Recipient shall cooperate with Company to legally contest, request confidential treatment, or otherwise avoid such\ndisclosure, as requested by the Company.\n4.\nUpon termination of this Agreement for any reason, or upon the termination of Recipient's relationship with the Company or upon\nrequest by the Company made at any time, all Confidential Information, together with any copies of same as may be authorized herein,\nshall be returned to the Company, or destroyed and certified as such by Recipient.\n5. The obligations imposed in this Agreement shall not apply to any Confidential Information that: (i) was already in the possession of\nRecipient at the time of disclosure without restrictions on its use or is independently developed by Recipient after the effective date of\nthis Agreement, provided that the person or persons developing same have not used any Confidential Information in such development,\nor is rightfully obtained from a source other than from the Company; (ii) is in the public domain at the time of disclosure or\nsubsequently becomes available to the genera public through no fault of Recipient; (iii) is obtained by Recipient from a third person\nwho is under no obligation of confidence to the Company; or (iv) is disclosed without restriction by the Company.\n6. Each Party acknowledges that this Agreement and any meetings and communications of the Parties and their affiliates relating to the\nsame subject matter hereof shall not constitute a representation, warranty, assurance, guarantee or inducement with respect to the\naccuracy or completeness of any Confidential Information or the non-infringement of the rights of third persons.\n7. Neither this Agreement nor any rights hereunder shall be assignable or otherwise transferable by either Party in whole or in part\nwithout the prior written consent of the other Party.\n8.\nNothing herein shall be construed as granting to Recipient or its affiliates any right or license to use or practice any of the information\ndefined herein as Confidential Information and which is subject to this Agreement as well as any trade secrets, know-how, copyrights,\ninventions,\npatents\nor\nother\nintellectual\nproperty\nrights\nnow\nor\nhereafter\nowned\nor\ncontrolled\nby\nthe\nCompany.\nExcept\nas\nallowed\nby\napplicable law, Recipient shall not use any tradename, service mark or trademark of the Company or refer to the Company in any\npromotional or sales activity or materials without first obtaining the prior written consent of the Company.\n9. The Company makes no representations or warranties with respect to any information disclosed by it to Recipient except that the\nCompany hereby represents and warrants to Recipient that the Company has the legal right and power to disclose any information\ndisclosed by it hereunder.\n10. This Agreement shall be governed and construed under the laws of the State of Florida, without regard to its conflict of laws\nprinciples.\nRecipient\nhereby\nacknowledges\nand\nagrees\nthat\nremedies\nat\nlaw\nwill\nbe\ninadequate\nto\nprotect\nthe\nCompany\nfrom\nany\nactual\nor threatened breach of this Agreement and that any such breach would cause irreparable and continuing injury to the Company.\nTherefore, Recipient agrees that the Company shall be entitled to seek equitable relief without any requirement to post a bond,\nincluding, without limitation, injunction and specific performance, without proof of actual damages or exhausting other remedies, in\naddition to all other remedies available to the Parties at law or in equity.\n11. Any notice to be given under this Agreement by either Party to the other Party shall be in writing and sent to an officer at its address\nset\nforth on the signature pages hereof by certified or registered mail or by overnight air courier, or by email with return receipt\nrequested and received, and shall be deemed received three days after deposit in the mail or with such courier, properly addressed,\npostage prepaid, or upon receipt of a return receipt is sent by email. If either Party changes its address during the term of this\nAgreement, it shall notify the other Party at its address set forth above in the manner provided in the preceding sentence.\n12. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement. No\nprovision of this Agreement shall be deemed waived, amended or modified by either Party, unless such waiver, amendment or\nmodification is made in writing and signed by both Parties. Each Party agrees that no failure or delay by the other in exercising any\nright, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or\nfurther exercise thereof or the exercise of any right, power or privilege hereunder. This Agreement contains all the terms of the Parties'\nagreements with respect to the subject matter hereof and supersedes all previous agreements between the Parties relating to the subject\nmatter hereof.\n13.\nIn the event any provision of this Agreement is deemed invalid or otherwise unenforceable for any reason, such invalid portion shall\nbe deleted and the Agreement shall continue in effect for all other purposes. A faxed or copied version of this document has the same\neffect and meaning as the original.\n14.\nThis Agreement may be executed in several counterparts each of which shall be deemed an original, but all of which together shall\nconstitute one and the same instrument, binding upon all of the Parties. In pleading or proving any provision of this Agreement, it shall\nnot be necessary to produce more than one set of such counterparts. Delivery of an executed counterpart of a signature page to\nthis\nAgreement by facsimile shall be effective as delivery of a manually executed counterpart of this Agreement.\n15. This Agreement may be terminated at any time by either Party giving thirty (30) days prior written notice to the other Party. Unless\nearlier terminated, this Agreement shall terminate and be of no further force or effect on the cessation of Recipient's employment by, or\nservice as an officer to, the Company. The obligations of the Parties under paragraphs 2, 3, 4, 5, and 12 of this Agreement shall survive\nsuch termination for a period of three (3) years.\n[Signatures appear on following page]\nIN WITNESS WHEREOF, the Parties, intending to be legally bound hereby, have caused their duly authorized representatives to sign this\nAgreement as of the date indicated above.\nCarolco Pictures, Inc.\nBy:\nDavid Cohen\nCEO\nAddress for Notices:\nDavid Cohen\nChief Executive Officer\nCarolco Pictures, Inc.\n1200 N. Federal Highway, Suite 200\nBoca Raton, FL 33432\nEmail: dc@carolcopictures.com\nRecipient:\nBy:\nName:\nAddress for Notices:\nEmail:	NON-DISCLOSURE AGREEMENT\nDated as of July 25, 2016\nThis Non-Disclosure Agreement (this “Agreement”) is entered into as of the date first set forth above by and between Carolco Pictures, Inc., a\nFlorida corporation (the “Company”), and the person whose name is set forth on the signature page hereof adjacent to “Recipient” (the\n“Recipient”, and together with the Company, the “Parties” and each individually, a “Party”).\nWHEREAS, Recipient is an employee or officer of Company and will obtain certain Confidential Information (as defined below) of Company in\nconnection with such relationship, and the Parties desire to provide for certain matters related to such Confidential Information as set forth\nherein; and\nWHEREAS, the Parties agree that the terms and conditions of this Agreement shall apply to any and all discussions involving or related to the\nprovision of Confidential Information to Recipient.\nNOW THEREFORE, in consideration of the promises and covenants contained herein, and for other good and valuable consideration, the receipt\nand sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:\n1. The purpose of this Agreement is to allow Recipient to obtain from the Company certain technical and business information of the\nCompany under terms that will protect the confidential and proprietary nature of such information, for the purpose of furthering the\nParties’ relationship (the “Purpose”).\n2. As used in this Agreement, “Confidential Information” shall mean any and all information furnished or disclosed, in whatever form\nor medium, by the Company or its Representatives (as defined below) to Recipient or his Representatives, and shall include all\ninformation relating to the Company, including, but not limited to:\na. any data or information that is competitively sensitive material, including but not limited to products, planning\ninformation, marketing strategies and opportunities, price lists, plans, finance, operations, customer relationships or\npotential customer relationships, customer profiles, partner relationships or potential partner relationships, advertising and\npublic relation relationships or potential advertising and public relation relationships, sales estimates, business plan and\ninternal performances results relating to the past, present or future business activities of the Company or its owners, or the\nCompany’s customers, clients, manufacturers, vendors, employees or suppliers;\nb. all concepts, documentation reports, data, specifications, notes, drawings, diagrams, computer software, source code,\nobject code, flow charts, databases, inventions, information, know-how, show-how and trade secrets, whether or not\npatentable or copyrightable regarding the Company’s business;\nc. all customer, client, employee, vendor, or supplier lists; and\nd. such other information as the Company may identify to the Recipient as being confidential or privileged by means of a\nnotation or confidential legend on the applicable document.\n3. Recipient agrees to use Confidential Information only for the Purpose and shall use reasonable care not to disclose Confidential\nInformation to any third party, such care to be at least equal to the care exercised by Recipient as to its own confidential information,\nwhich standard of care shall not be less than the current industry standard in effect as of the date of such receipt. Recipient agrees that it\nshall make disclosure of any such Confidential Information only to employees (including temporary and leased employees subject to a\nconfidentiality obligation), officers, directors, attorneys and wholly owned subsidiaries (collectively, “Representatives”), to whom\ndisclosure is reasonably necessary for the Purpose. Notwithstanding anything to the contrary contained herein, the Parties acknowledge\nand agree that Recipient may, with notice to the Company, disclose any Confidential Information as and to the extent that Recipient’s\ncounsel deems required pursuant to any law or governmental regulation, or pursuant to the order of a court or administrative body of\ncompetent jurisdiction provided, however, that in such case Recipient shall inform the Company prior to such disclosure and shall only\ndisclose so much of the Confidential Information as may be required for compliance with such law or governmental regulation and\nprovided that Recipient shall cooperate with Company to legally contest, request confidential treatment, or otherwise avoid such\ndisclosure, as requested by the Company.\n4. Upon termination of this Agreement for any reason, or upon the termination of Recipient’s relationship with the Company or upon\nrequest by the Company made at any time, all Confidential Information, together with any copies of same as may be authorized herein,\nshall be returned to the Company, or destroyed and certified as such by Recipient.\n5. The obligations imposed in this Agreement shall not apply to any Confidential Information that: (i) was already in the possession of\nRecipient at the time of disclosure without restrictions on its use or is independently developed by Recipient after the effective date of\nthis Agreement, provided that the person or persons developing same have not used any Confidential Information in such development,\nor is rightfully obtained from a source other than from the Company; (ii) is in the public domain at the time of disclosure or\nsubsequently becomes available to the general public through no fault of Recipient; (iii) is obtained by Recipient from a third person\nwho is under no obligation of confidence to the Company; or (iv) is disclosed without restriction by the Company.\n6. Each Party acknowledges that this Agreement and any meetings and communications of the Parties and their affiliates relating to the\nsame subject matter hereof shall not constitute a representation, warranty, assurance, guarantee or inducement with respect to the\naccuracy or completeness of any Confidential Information or the non-infringement of the rights of third persons.\n7. Neither this Agreement nor any rights hereunder shall be assignable or otherwise transferable by either Party in whole or in part\nwithout the prior written consent of the other Party.\n8. Nothing herein shall be construed as granting to Recipient or its affiliates any right or license to use or practice any of the information\ndefined herein as Confidential Information and which is subject to this Agreement as well as any trade secrets, know-how, copyrights,\ninventions, patents or other intellectual property rights now or hereafter owned or controlled by the Company. Except as allowed by\napplicable law, Recipient shall not use any tradename, service mark or trademark of the Company or refer to the Company in any\npromotional or sales activity or materials without first obtaining the prior written consent of the Company.\n9. The Company makes no representations or warranties with respect to any information disclosed by it to Recipient except that the\nCompany hereby represents and warrants to Recipient that the Company has the legal right and power to disclose any information\ndisclosed by it hereunder.\n10. This Agreement shall be governed and construed under the laws of the State of Florida, without regard to its conflict of laws\nprinciples. Recipient hereby acknowledges and agrees that remedies at law will be inadequate to protect the Company from any actual\nor threatened breach of this Agreement and that any such breach would cause irreparable and continuing injury to the Company.\nTherefore, Recipient agrees that the Company shall be entitled to seek equitable relief without any requirement to post a bond,\nincluding, without limitation, injunction and specific performance, without proof of actual damages or exhausting other remedies, in\naddition to all other remedies available to the Parties at law or in equity.\n11. Any notice to be given under this Agreement by either Party to the other Party shall be in writing and sent to an officer at its address\nset forth on the signature pages hereof by certified or registered mail or by overnight air courier, or by email with return receipt\nrequested and received, and shall be deemed received three days after deposit in the mail or with such courier, properly addressed,\npostage prepaid, or upon receipt of a return receipt is sent by email. If either Party changes its address during the term of this\nAgreement, it shall notify the other Party at its address set forth above in the manner provided in the preceding sentence.\n12. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement. No\nprovision of this Agreement shall be deemed waived, amended or modified by either Party, unless such waiver, amendment or\nmodification is made in writing and signed by both Parties. Each Party agrees that no failure or delay by the other in exercising any\nright, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or\nfurther exercise thereof or the exercise of any right, power or privilege hereunder. This Agreement contains all the terms of the Parties’\nagreements with respect to the subject matter hereof and supersedes all previous agreements between the Parties relating to the subject\nmatter hereof.\n13. In the event any provision of this Agreement is deemed invalid or otherwise unenforceable for any reason, such invalid portion shall\nbe deleted and the Agreement shall continue in effect for all other purposes. A faxed or copied version of this document has the same\neffect and meaning as the original.\n14. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall\nconstitute one and the same instrument, binding upon all of the Parties. In pleading or proving any provision of this Agreement, it shall\nnot be necessary to produce more than one set of such counterparts. Delivery of an executed counterpart of a signature page to this\nAgreement by facsimile shall be effective as delivery of a manually executed counterpart of this Agreement.\n15. This Agreement may be terminated at any time by either Party giving thirty (30) days prior written notice to the other Party. Unless\nearlier terminated, this Agreement shall terminate and be of no further force or effect on the cessation of Recipient’s employment by, or\nservice as an officer to, the Company. The obligations of the Parties under paragraphs 2, 3, 4, 5, and 12 of this Agreement shall survive\nsuch termination for a period of three (3) years.\n[Signatures appear on following page]\nIN WITNESS WHEREOF, the Parties, intending to be legally bound hereby, have caused their duly authorized representatives to sign this\nAgreement as of the date indicated above.\nCarolco Pictures, Inc.\nBy:\nDavid Cohen\nCEO\nAddress for Notices:\nDavid Cohen\nChief Executive Officer\nCarolco Pictures, Inc.\n1200 N. Federal Highway, Suite 200\nBoca Raton, FL 33432\nEmail: dc@carolcopictures.com\nRecipient: ____________________________\nBy: __________________________________\nName: __________________________________\nAddress for Notices:\n______________________________\n______________________________\n______________________________\n______________________________\nEmail: ________________________
8a7413227aa04736709b291f6428bbf2.pdf	effective_date jurisdiction party term	Exhibit A\nNon-Disclosure Agreement\nAugust 26, 2015\nReference is made to the Standstill Agreement, dated August 26, 2015 (the “Standstill Agreement”), by and among Riverview Bancorp,\nInc. (the “Company”), the Ancora Parties and James M. Chadwick, as representative of the Ancora Parties (the “Director”). Capitalized terms used\nbut not defined herein shall have the meanings ascribed to them in the Standstill Agreement, and the rules of interpretation set forth in Section 8 of\nthe Standstill Agreement shall apply to this Non-Disclosure Agreement mutatis mutandis.\nThe Director may be provided certain information and data in connection with his serving as a director of the Company or Riverview\nCommunity Bank that the Company or Riverview Community Bank wishes to keep confidential, including information (whether furnished in\nwriting or electronic format or orally) regarding the Company’s and Riverview Community Bank’s governance, board of directors, management,\nplans, strategies, business, finances or operations and information that the Company or Riverview Community Bank has obtained from third parties\nand with respect to which the Company or Riverview Community Bank is obligated to maintain confidentiality (collectively, “Confidential\nInformation”). Except as provided in this Non-Disclosure Agreement, the Director will not disclose any Confidential Information in any manner\nwhatsoever or use any Confidential Information other than in connection with serving as a director of the Company or Riverview Community Bank\nwithout, in each instance, securing the prior written consent of the Company (acting through a resolution of a majority of the Company’s directors).\nExcept as set forth in this paragraph, this Non-Disclosure Agreement shall not prevent the Director from privately disclosing\nConfidential Information to (i) officers, directors, accountants and counsel for the Company or Riverview Community Bank, (ii) the Director ’s legal\ncounsel or legal counsel to the Ancora Parties (each a “Director Representative” and collectively, the “Director Representatives”) who needs to\nknow such information for the sole purpose of advising the Director on his actions as a director of the Company or Riverview Community Bank or\nadvising Ancora Advisors, LLC (“Ancora Advisors”) and the Ancora Parties (or the Ancora Affiliates) on its (or their) investment(s) in the\nCompany or (iii) Frederick DiSanto, Brian Hopkins and Patrick Sweeney, each an associate of Ancora Advisors (each an “Ancora Principal” and,\ncollectively, the “Ancora Principals”). Notwithstanding the foregoing, it is understood and agreed that the Director will not disclose any information\nthat the Director learns or obtains in his capacity as a director of the Company or Riverview Community Bank to any Director Representative or any\nAncora Principal to the extent such disclosure would be reasonably likely to constitute a waiver of the attorney-client privilege between the\nCompany or Riverview Community Bank and its counsel or the Company’s or Riverview Community Bank’s attorney work product privilege. The\nDirector also acknowledges and agrees that he will not disclose, and is prohibited by law and regulation from disclosing, to any Director\nRepresentative or any Ancora Principal any reports of examination or other confidential supervisory information of any bank regulatory authority,\nincluding the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of San Francisco, the Federal Deposit Insurance\nCorporation\nExhibit A-1\nand the Office of the Comptroller of the Currency. Any Director Representative shall only be provided Confidential Information to the extent that\nsuch Director Representative is informed of the confidential nature of the Confidential Information and agrees or is otherwise obligated to keep such\ninformation confidential and to restrict the use of such confidential information in accordance with the terms of this Non-Disclosure Agreement.\nThe Ancora Principals agree to keep confidential the Confidential Information and to restrict the use of such Confidential Information in accordance\nwith the terms of this Non-Disclosure Agreement, to be bound by this Non-Disclosure Agreement on the same terms as the Director by\ncountersigning this Non-Disclosure Agreement and not to use any Confidential Information in a manner that may be detrimental to the Company or\nits subsidiaries, including Riverview Community Bank. The Director, Ancora Advisors and the Ancora Parties shall be responsible for any breach of\nthis Agreement by the Director, any Director Representatives, Ancora Advisors, the Ancora Parties or Ancora Principals.\nThe term “Confidential Information” shall not include information that (a) is at the time of disclosure or thereafter becomes generally\navailable to the public other than as a result of a disclosure by the Director, Ancora Advisors, the Ancora Parties, a Director Representative or an\nAncora Principal in violation of the terms of this Non-Disclosure Agreement; (b) was, prior to disclosure by the Company or Riverview Community\nBank, already in the possession of the Director, a Director Representative or an Ancora Principal; provided that the source of such information was,\nto such person’s knowledge after reasonable inquiry, not bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation of confidentiality to, the Company or Riverview Community Bank; (c) becomes available to the Director, a Director Representative or an\nAncora Principal on a non-confidential basis from a source other than the Company, an affiliate of the Company (including Riverview Community\nBank) or an agent, representative, attorney, advisor, director, officer or employee of the Company or Riverview Community Bank (collectively, the\n“Company Representatives”) that is, to such person’s knowledge after reasonable inquiry, not bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Company or Riverview Community Bank, and is not, to such person’s knowledge\nafter reasonable inquiry, under an obligation to the Company or Riverview Community Bank not to transmit the information to such person; or\n(d) was independently developed by the Director, a Director Representative or an Ancora Principal without reference to or use of the Confidential\nInformation.\nThe Director is aware, and will advise any Director Representative or an Ancora Principal who is informed of the matters that are the\nsubject of this Non-Disclosure Agreement, that the Confidential Information may constitute material, non-public information and of the restrictions\nimposed by the United States securities laws on the purchase or sale of securities by any person who is aware of material, non-public information\nand on the communication of such information to any other person who may purchase or sell such securities on the basis of such information. The\nDirector, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal to whom the Director transmits Confidential\nInformation under this Non-Disclosure Agreement will comply with all applicable federal and state securities laws in connection with the purchase\nor sale, directly or indirectly, of securities of the Company or any other entity of which the Director is provided material non-public information in\nhis capacity as a director of the Company or Riverview Community Bank for as long as the Director, Ancora\nExhibit A-2\nAdvisors, the Ancora Parties any Director Representative or any Ancora Principal are in possession of material non-public information about the\nCompany or such other entity. The Director and the Company acknowledge that none of the provisions hereto shall in any way limit Ancora\nAdvisors’, the Ancora Parties’ or the Ancora Principals’ activities in the ordinary course of business if such activities will not violate applicable\nsecurities laws or the obligations set forth in this Non-Disclosure Agreement.\nEach of the Director, any Ancora Principal and any Director Representative to whom the Director transmits Confidential Information\nunder this Non-Disclosure Agreement acknowledges, or shall be deemed to acknowledge, that none of the Company, any affiliate of the Company\nor any Company Representative makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential\nInformation. None of the Company, any affiliate of the Company or any Company Representative shall have any liability to the Director, Ancora\nAdvisors, the Ancora Parties, any Director Representative or any Ancora Principal hereunder relating to or resulting from the use of the\nConfidential Information by the Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal or any errors in\nor omissions from the Confidential Information.\nIn the event that the Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal is requested in\nany proceeding or governmental inquiry to disclose any Confidential Information, the Director will give the Company prompt written notice, to the\nextent not legally prohibited, of such request so that the Company or Riverview Community Bank may seek an appropriate protective order or\nwaive compliance with the applicable provisions of this Non-Disclosure Agreement. If the Company or Riverview Community Bank seeks a\nprotective order, the Director, Ancora Advisors, the Ancora Parties, and the Ancora Principals agree to, and shall cause any Director Representative\nto, provide such cooperation as the Company or Riverview Community Bank shall reasonably request and in no event will they oppose action by the\nCompany or Riverview Community Bank to obtain a protective order or other relief to prevent the disclosure of Confidential Information or to\nobtain reliable assurance that confidential treatment will be afforded to the Confidential Information. If in the absence of a protective order, the\nDirector, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal, based upon the advice of counsel, is legally\nrequired to disclose Confidential Information, such person or entity may disclose without liability under this Non-Disclosure Agreement such\nportion of the Confidential Information that counsel advises that the Director, Ancora Advisors, the Ancora Parties, any Director Representative or\nany Ancora Principal is legally required to disclose, so long as the recipient of such Confidential Information is informed of this Non-Disclosure\nAgreement and the confidential nature of such Confidential Information. For the avoidance of doubt, there shall be no legal requirement applicable\nto the Director, Ancora Advisors, the Ancora Parties, or the Ancora Principals to disclose any Confidential Information solely by virtue of the fact\nthat, absent such disclosure, such parties would be prohibited from purchasing, selling, or engaging in derivative or other transactions with respect\nto securities of the Company.\nThe parties agree that irreparable damage would occur in the event any of the provisions of this Non-Disclosure Agreement were not\nperformed in accordance with the terms hereof and that such damage would not be adequately compensable in monetary damages. Accordingly, the\nparties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Non-\nExhibit A-3\nDisclosure Agreement and to enforce specifically the terms and provisions of this Non-Disclosure Agreement exclusively in the State of\nWashington with a court of competent jurisdiction located in Clark County, Washington (the “Washington Courts”), in addition to any other\nremedies at law or in equity, and each party agrees it will not take any action, directly or indirectly, in opposition to the party seeking relief on the\ngrounds that any other remedy or relief is available at law or in equity. Each of the parties hereto agrees to waive any bonding requirement under\nany applicable law, in the case any other party seeks to enforce the terms by way of equitable relief. In the event of litigation relating to this Non-\nDisclosure Agreement, if a court of competent jurisdiction determines that this Non-Disclosure Agreement has been breached by the Director,\nAncora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal, Ancora Advisors and the Ancora Parties will reimburse\nthe Company for its reasonable and documented out-of-pocket costs and expenses (including legal fees and expenses) incurred in connection with\nall such litigation (including any appeal relating thereto). Furthermore, each of the parties hereto irrevocably (a) consents to submit itself to the\npersonal jurisdiction of the Washington Courts in the event any dispute arises out of this Non-Disclosure Agreement, (b) agrees that it shall not\nattempt to deny or defeat such personal jurisdiction by motion or other request for leave from the Washington Courts, (c) agrees that it shall not\nbring any action relating to this Non-Disclosure Agreement in any court other than the Washington Courts, (d) waives the right to trial by jury, and\n(d) consents to service of process by the United States Postal Service or reputable overnight mail delivery service, in each case, signature requested,\nto the address set forth in Section 14 of the Standstill Agreement or as otherwise provided by applicable law. THIS NON-DISCLOSURE\nAGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING WITH RESPECT TO VALIDITY, INTERPRETATION, EFFECT\nAND ENFORCEMENT, BY THE LAWS OF THE STATE OF WASHINGTON WITHOUT GIVING EFFECT TO THE CHOICE OF LAW\nPRINCIPLES THEREOF THAT WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.\nThis Non-Disclosure Agreement may not be amended except in writing signed by all the parties hereto. No failure or delay by either\nparty in exercising any right hereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of\nany right hereunder.\nThe provisions of this Non-Disclosure Agreement relating to confidentiality shall terminate two (2) years after the Director (or any\nsubstitute director appointed to replace the Director in accordance with Sections 1 and 4 of the Standstill Agreement) ceases to be a director of the\nCompany or Riverview Community Bank, except that any Confidential Information constituting trade secrets of the Company or Riverview\nCommunity Bank (as defined in 18 U.S.C . § 1839(3)) shall be kept confidential in accordance with the obligations of this Non-Disclosure\nAgreement for such longer time as such information constitutes a trade secret of the Company or Riverview Community Bank. The invalidity or\nunenforceability of any provision of this Non-Disclosure Agreement shall not affect the validity or enforceability of any other provision hereof.\nAll Confidential Information shall remain the property of the Company or Riverview Community Bank and none of the Directors,\nAncora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal shall by virtue of any disclosure of or use of any\nExhibit A-4\nConfidential Information acquire any rights with respect thereto, all of which rights (including all intellectual property rights) shall remain\nexclusively with the Company or Riverview Community Bank. At any time after the date on which the Director (or any substitute director\nappointed to replace the Director in accordance with Sections 1 and 4 of the Standstill Agreement) is no longer a director of the Company, upon the\nrequest of the Company for any reason, the Director and the Ancora Principals will, and will cause Ancora Advisors, the Ancora Parties, and any\nDirector Representative to, promptly return to the Company or destroy all hard copies of the Confidential Information and use reasonable efforts to\npermanently erase or delete all electronic copies of the Confidential Information in the possession or control of the Director, Ancora Advisors, the\nAncora Parties, any Director Representative or any Ancora Principal. Notwithstanding anything to the contrary contained in this paragraph, the\nDirector, the Ancora Principals, Ancora Advisors, the Ancora Parties and any Director Representative shall be permitted to retain such Confidential\nInformation as is necessary to enable them to comply with any applicable document retention requirements under applicable law or regulation and\nto retain any computer records and computer files containing any Confidential Information if required pursuant to their respective current automatic\narchiving and backup procedures; provided, however, that such retention shall be solely for legal, regulatory or archival purposes, as the case may\nbe.\nUnless and until any substitute director appointed in accordance with Sections 1 and 4 of the Standstill Agreement executes a joinder to\nthis Non-Disclosure Agreement and agrees to be bound by the terms hereof applicable to the Director, the Ancora Principals shall not be permitted\nto discuss Confidential Information with, or obtain Confidential Information from, such substitute director.\n[Signature Page Follows]\nExhibit A-5\nAcceptance of the above terms shall be indicated by having this Non-Disclosure Agreement countersigned by the Director, the Ancora Principal,\nAncora Advisors and the Ancora Parties.\nSincerely,\nRIVERVIEW BANCORP, INC.\nBy: /s/Pat Sheaffer\nName: Pat Sheaffer\nTitle: Chairman and CEO\nAcknowledged and agreed as of the date first written above:\n/s/James M. Chadwick\nJames M. Chadwick, as Director\n/s/Frederick DiSanto\nFrederick DiSanto, as Ancora Principal\nANCORA ADVISORS, LLC\nMERLIN PARTNERS,\nAAMAF LP\nANCORA CATALYST FUND LP\nBy: /s/Frederick DiSanto\nBy:\n/s/Brian Hopkins\nName: Frederick DiSanto\nName:\nBrian Hopkins\nTitle:\nManaging Member\nTitle:\nManaging Member\nBy: /s/Patrick Sweeney\nName: Patrick Sweeney\nTitle:\nAssociate\n[Signature Page to Non-Disclosure Agreement]\nExhibit A-6	Exhibit A\nNon-Disclosure Agreement\nAugust 26, 2015\nReference is made to the Standstill Agreement, dated August 26, 2015 (the “Standstill Agreement”), by and among Riverview Bancorp,\nInc. (the “Company”), the Ancora Parties and James M. Chadwick, as representative of the Ancora Parties (the “Director”). Capitalized terms used\nbut not defined herein shall have the meanings ascribed to them in the Standstill Agreement, and the rules of interpretation set forth in Section 8 of\nthe Standstill Agreement shall apply to this Non-Disclosure Agreement mutatis mutandis.\nThe Director may be provided certain information and data in connection with his serving as a director of the Company or Riverview\nCommunity Bank that the Company or Riverview Community Bank wishes to keep confidential, including information (whether furnished in\nwriting or electronic format or orally) regarding the Company’s and Riverview Community Bank’s governance, board of directors, management,\nplans, strategies, business, finances or operations and information that the Company or Riverview Community Bank has obtained from third parties\nand with respect to which the Company or Riverview Community Bank is obligated to maintain confidentiality (collectively, “Confidential\nInformation”). Except as provided in this Non-Disclosure Agreement, the Director will not disclose any Confidential Information in any manner\nwhatsoever or use any Confidential Information other than in connection with serving as a director of the Company or Riverview Community Bank\nwithout, in each instance, securing the prior written consent of the Company (acting through a resolution of a majority of the Company’s directors).\nExcept as set forth in this paragraph, this Non-Disclosure Agreement shall not prevent the Director from privately disclosing\nConfidential Information to (i) officers, directors, accountants and counsel for the Company or Riverview Community Bank, (ii) the Director’s legal\ncounsel or legal counsel to the Ancora Parties (each a “Director Representative” and collectively, the “Director Representatives”) who needs to\nknow such information for the sole purpose of advising the Director on his actions as a director of the Company or Riverview Community Bank or\nadvising Ancora Advisors, LLC (“Ancora Advisors”) and the Ancora Parties (or the Ancora Affiliates) on its (or their) investment(s) in the\nCompany or (iii) Frederick DiSanto, Brian Hopkins and Patrick Sweeney, each an associate of Ancora Advisors (each an “Ancora Principal” and,\ncollectively, the “Ancora Principals”). Notwithstanding the foregoing, it is understood and agreed that the Director will not disclose any information\nthat the Director learns or obtains in his capacity as a director of the Company or Riverview Community Bank to any Director Representative or any\nAncora Principal to the extent such disclosure would be reasonably likely to constitute a waiver of the attorney-client privilege between the\nCompany or Riverview Community Bank and its counsel or the Company’s or Riverview Community Bank’s attorney work product privilege. The\nDirector also acknowledges and agrees that he will not disclose, and is prohibited by law and regulation from disclosing, to any Director\nRepresentative or any Ancora Principal any reports of examination or other confidential supervisory information of any bank regulatory authority,\nincluding the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of San Francisco, the Federal Deposit Insurance\nCorporation\nExhibit A-1\nand the Office of the Comptroller of the Currency. Any Director Representative shall only be provided Confidential Information to the extent that\nsuch Director Representative is informed of the confidential nature of the Confidential Information and agrees or is otherwise obligated to keep such\ninformation confidential and to restrict the use of such confidential information in accordance with the terms of this Non-Disclosure Agreement.\nThe Ancora Principals agree to keep confidential the Confidential Information and to restrict the use of such Confidential Information in accordance\nwith the terms of this Non-Disclosure Agreement, to be bound by this Non-Disclosure Agreement on the same terms as the Director by\ncountersigning this Non-Disclosure Agreement and not to use any Confidential Information in a manner that may be detrimental to the Company or\nits subsidiaries, including Riverview Community Bank. The Director, Ancora Advisors and the Ancora Parties shall be responsible for any breach of\nthis Agreement by the Director, any Director Representatives, Ancora Advisors, the Ancora Parties or Ancora Principals.\nThe term “Confidential Information” shall not include information that (a) is at the time of disclosure or thereafter becomes generally\navailable to the public other than as a result of a disclosure by the Director, Ancora Advisors, the Ancora Parties, a Director Representative or an\nAncora Principal in violation of the terms of this Non-Disclosure Agreement; (b) was, prior to disclosure by the Company or Riverview Community\nBank, already in the possession of the Director, a Director Representative or an Ancora Principal; provided that the source of such information was,\nto such person’s knowledge after reasonable inquiry, not bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation of confidentiality to, the Company or Riverview Community Bank; (c) becomes available to the Director, a Director Representative or an\nAncora Principal on a non-confidential basis from a source other than the Company, an affiliate of the Company (including Riverview Community\nBank) or an agent, representative, attorney, advisor, director, officer or employee of the Company or Riverview Community Bank (collectively, the\n“Company Representatives) that is, to such person’s knowledge after reasonable inquiry, not bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Company or Riverview Community Bank, and is not, to such person’s knowledge\nafter reasonable inquiry, under an obligation to the Company or Riverview Community Bank not to transmit the information to such person; or\n(d) was independently developed by the Director, a Director Representative or an Ancora Principal without reference to or use of the Confidential\nInformation.\nThe Director is aware, and will advise any Director Representative or an Ancora Principal who is informed of the matters that are the\nsubject of this Non-Disclosure Agreement, that the Confidential Information may constitute material, non-public information and of the restrictions\nimposed by the United States securities laws on the purchase or sale of securities by any person who is aware of material, non-public information\nand on the communication of such information to any other person who may purchase or sell such securities on the basis of such information. The\nDirector, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal to whom the Director transmits Confidential\nInformation under this Non-Disclosure Agreement will comply with all applicable federal and state securities laws in connection with the purchase\nor sale, directly or indirectly, of securities of the Company or any other entity of which the Director is provided material non-public information in\nhis capacity as a director of the Company or Riverview Community Bank for as long as the Director, Ancora\nExhibit A-2\nAdvisors, the Ancora Parties any Director Representative or any Ancora Principal are in possession of material non-public information about the\nCompany or such other entity. The Director and the Company acknowledge that none of the provisions hereto shall in any way limit Ancora\nAdvisors’, the Ancora Parties’ or the Ancora Principals’ activities in the ordinary course of business if such activities will not violate applicable\nsecurities laws or the obligations set forth in this Non-Disclosure Agreement.\nEach of the Director, any Ancora Principal and any Director Representative to whom the Director transmits Confidential Information\nunder this Non-Disclosure Agreement acknowledges, or shall be deemed to acknowledge, that none of the Company, any affiliate of the Company\nor any Company Representative makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential\nInformation. None of the Company, any affiliate of the Company or any Company Representative shall have any liability to the Director, Ancora\nAdvisors, the Ancora Parties, any Director Representative or any Ancora Principal hereunder relating to or resulting from the use of the\nConfidential Information by the Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal or any errors in\nor omissions from the Confidential Information.\nIn the event that the Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal is requested in\nany proceeding or governmental inquiry to disclose any Confidential Information, the Director will give the Company prompt written notice, to the\nextent not legally prohibited, of such request so that the Company or Riverview Community Bank may seek an appropriate protective order or\nwaive compliance with the applicable provisions of this Non-Disclosure Agreement. If the Company or Riverview Community Bank seeks a\nprotective order, the Director, Ancora Advisors, the Ancora Parties, and the Ancora Principals agree to, and shall cause any Director Representative\nto, provide such cooperation as the Company or Riverview Community Bank shall reasonably request and in no event will they oppose action by the\nCompany or Riverview Community Bank to obtain a protective order or other relief to prevent the disclosure of Confidential Information or to\nobtain reliable assurance that confidential treatment will be afforded to the Confidential Information. If in the absence of a protective order, the\nDirector, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal, based upon the advice of counsel, is legally\nrequired to disclose Confidential Information, such person or entity may disclose without liability under this Non-Disclosure Agreement such\nportion of the Confidential Information that counsel advises that the Director, Ancora Advisors, the Ancora Parties, any Director Representative or\nany Ancora Principal is legally required to disclose, so long as the recipient of such Confidential Information is informed of this Non-Disclosure\nAgreement and the confidential nature of such Confidential Information. For the avoidance of doubt, there shall be no legal requirement applicable\nto the Director, Ancora Advisors, the Ancora Parties, or the Ancora Principals to disclose any Confidential Information solely by virtue of the fact\nthat, absent such disclosure, such parties would be prohibited from purchasing, selling, or engaging in derivative or other transactions with respect\nto securities of the Company.\nThe parties agree that irreparable damage would occur in the event any of the provisions of this Non-Disclosure Agreement were not\nperformed in accordance with the terms hereof and that such damage would not be adequately compensable in monetary damages. Accordingly, the\nparties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Non-\nExhibit A-3\nDisclosure Agreement and to enforce specifically the terms and provisions of this Non-Disclosure Agreement exclusively in the State of\nWashington with a court of competent jurisdiction located in Clark County, Washington (the “Washington Courts”), in addition to any other\nremedies at law or in equity, and each party agrees it will not take any action, directly or indirectly, in opposition to the party seeking relief on the\ngrounds that any other remedy or relief is available at law or in equity. Each of the parties hereto agrees to waive any bonding requirement under\nany applicable law, in the case any other party seeks to enforce the terms by way of equitable relief. In the event of litigation relating to this Non-\nDisclosure Agreement, if a court of competent jurisdiction determines that this Non-Disclosure Agreement has been breached by the Director,\nAncora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal, Ancora Advisors and the Ancora Parties will reimburse\nthe Company for its reasonable and documented out-of-pocket costs and expenses (including legal fees and expenses) incurred in connection with\nall such litigation (including any appeal relating thereto). Furthermore, each of the parties hereto irrevocably (a) consents to submit itself to the\npersonal jurisdiction of the Washington Courts in the event any dispute arises out of this Non-Disclosure Agreement, (b) agrees that it shall not\nattempt to deny or defeat such personal jurisdiction by motion or other request for leave from the Washington Courts, (c) agrees that it shall not\nbring any action relating to this Non-Disclosure Agreement in any court other than the Washington Courts, (d) waives the right to trial by jury, and\n(d) consents to service of process by the United States Postal Service or reputable overnight mail delivery service, in each case, signature requested,\nto the address set forth in Section 14 of the Standstill Agreement or as otherwise provided by applicable law. THIS NON-DISCLOSURE\nAGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING WITH RESPECT TO VALIDITY, INTERPRETATION, EFFECT\nAND ENFORCEMENT, BY THE LAWS OF THE STATE OF WASHINGTON WITHOUT GIVING EFFECT TO THE CHOICE OF LAW\nPRINCIPLES THEREOF THAT WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.\nThis Non-Disclosure Agreement may not be amended except in writing signed by all the parties hereto. No failure or delay by either\nparty in exercising any right hereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of\nany right hereunder.\nThe provisions of this Non-Disclosure Agreement relating to confidentiality shall terminate two (2) years after the Director (or any\nsubstitute director appointed to replace the Director in accordance with Sections 1 and 4 of the Standstill Agreement) ceases to be a director of the\nCompany or Riverview Community Bank, except that any Confidential Information constituting trade secrets of the Company or Riverview\nCommunity Bank (as defined in 18 U.S.C. § 1839(3)) shall be kept confidential in accordance with the obligations of this Non-Disclosure\nAgreement for such longer time as such information constitutes a trade secret of the Company or Riverview Community Bank. The invalidity or\nunenforceability of any provision of this Non-Disclosure Agreement shall not affect the validity or enforceability of any other provision hereof.\nAll Confidential Information shall remain the property of the Company or Riverview Community Bank and none of the Directors,\nAncora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal shall by virtue of any disclosure of or use of any\nExhibit A-4\nConfidential Information acquire any rights with respect thereto, all of which rights (including all intellectual property rights) shall remain\nexclusively with the Company or Riverview Community Bank. At any time after the date on which the Director (or any substitute director\nappointed to replace the Director in accordance with Sections 1 and 4 of the Standstill Agreement) is no longer a director of the Company, upon the\nrequest of the Company for any reason, the Director and the Ancora Principals will, and will cause Ancora Advisors, the Ancora Parties, and any\nDirector Representative to, promptly return to the Company or destroy all hard copies of the Confidential Information and use reasonable efforts to\npermanently erase or delete all electronic copies of the Confidential Information in the possession or control of the Director, Ancora Advisors, the\nAncora Parties, any Director Representative or any Ancora Principal. Notwithstanding anything to the contrary contained in this paragraph, the\nDirector, the Ancora Principals, Ancora Advisors, the Ancora Parties and any Director Representative shall be permitted to retain such Confidential\nInformation as is necessary to enable them to comply with any applicable document retention requirements under applicable law or regulation and\nto retain any computer records and computer files containing any Confidential Information if required pursuant to their respective current automatic\narchiving and backup procedures; provided, however, that such retention shall be solely for legal, regulatory or archival purposes, as the case may\nbe.\nUnless and until any substitute director appointed in accordance with Sections 1 and 4 of the Standstill Agreement executes a joinder to\nthis Non-Disclosure Agreement and agrees to be bound by the terms hereof applicable to the Director, the Ancora Principals shall not be permitted\nto discuss Confidential Information with, or obtain Confidential Information from, such substitute director.\n[Signature Page Follows]\nExhibit A-5\nAcceptance of the above terms shall be indicated by having this Non-Disclosure Agreement countersigned by the Director, the Ancora Principal,\nAncora Advisors and the Ancora Parties.\nSincerely,\nRIVERVIEW BANCORP, INC.\nBy: /s/Pat Sheaffer\nName: Pat Sheaffer\nTitle: Chairman and CEO\nAcknowledged and agreed as of the date first written above:\n/s/James M. Chadwick\nJames M. Chadwick, as Director\n/s/Frederick DiSanto\nFrederick DiSanto, as Ancora Principal\nANCORA ADVISORS, LLC\nMERLIN PARTNERS,\nAAMAF LP\nANCORA CATALYST FUND LP\nBy: /s/Frederick DiSanto By: /s/Brian Hopkins\nName:  Frederick DiSanto Name: Brian Hopkins\nTitle: Managing Member Title: Managing Member\nBy: /s/Patrick Sweeney\nName: Patrick Sweeney\nTitle: Associate\n[Signature Page to Non-Disclosure Agreement]\nExhibit A-6	Exhibit A\nNon-Disclosure Agreement\nAugust 26, 2015\nReference is made to the Standstill Agreement, dated August 26, 2015 (the "Standstill Agreement"), by and among Riverview Bancorp,\nInc. (the "Company"), the Ancora Parties and James M. Chadwick, as representative of the Ancora Parties (the "Director"). Capitalized terms used\nbut\nnot defined herein shall have the meanings ascribed to them in the Standstill Agreement, and the rules of interpretation set forth in Section\n8\nof\nthe Standstill Agreement shall apply to this Non-Disclosure Agreement mutatis mutandis.\nThe Director may be provided certain information and data in connection with his serving as a director of the Company or Riverview\nCommunity Bank that the Company or Riverview Community Bank wishes to keep confidential, including information (whether furnished\nin\nwriting or electronic format or orally) regarding the Company's and Riverview Community Bank's governance, board of directors, management,\nplans,\nstrategies, business, finances or operations and information that the Company or Riverview Community Bank has obtained from third\nparties\nand with respect to which the Company or Riverview Community Bank is obligated to maintain confidentiality (collectively, "Confidential\nInformation"). Except as provided in this Non-Disclosure Agreement, the Director will not disclose any Confidential Information in any manner\nwhatsoever\nor\nuse\nany\nConfidential\nInformation\nother\nthan\nin\nconnection\nwith\nserving\nas\na\ndirector\nof\nthe\nCompany\nor\nRiverview\nCommunity\nBank\nwithout, in each instance, securing the prior written consent of the Company (acting through a resolution of a majority of the Company's directors).\nExcept as set forth in this paragraph, this Non-Disclosure Agreement shall not prevent the Director from privately disclosing\nConfidential Information to (i) officers, directors, accountants and counsel for the Company or Riverview Community Bank, (ii) the Director's legal\ncounsel or legal counsel to the Ancora Parties (each a "Director Representative" and collectively, the "Director Representatives") who needs to\nknow such information for the sole purpose of advising the Director on his actions as a director of the Company or Riverview Community Bank or\nadvising Ancora Advisors, LLC ("Ancora Advisors") and the Ancora Parties (or the Ancora Affiliates) on its (or their) investment(s) in the\nCompany or (iii) Frederick DiSanto, Brian Hopkins and Patrick Sweeney, each an associate of Ancora Advisors (each an "Ancora Principal" and,\ncollectively, the "Ancora Principals"). Notwithstanding the foregoing, it is understood and agreed that the Director will not disclose any information\nthat the Director learns or obtains in his capacity as a director of the Company or Riverview Community Bank to any Director Representative or any\nAncora Principal to the extent such disclosure would be reasonably likely to constitute a waiver of the attorney-client privilege between the\nCompany or Riverview Community Bank and its counsel or the Company's or Riverview Community Bank's attorney work product privilege. The\nDirector also acknowledges and agrees that he will not disclose, and is prohibited by law and regulation from disclosing, to any Director\nRepresentative or any Ancora Principal any reports of examination or other confidential supervisory information of any bank regulatory authority,\nincluding the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of San Francisco, the Federal Deposit Insurance\nCorporation\nExhibit A-1\nand the Office of the Comptroller of the Currency. Any Director Representative shall only be provided Confidential Information to the extent that\nsuch Director Representative is informed of the confidential nature of the Confidential Information and agrees or is otherwise obligated to keep such\ninformation confidential and to restrict the use of such confidential information in accordance with the terms of this Non-Disclosure Agreement.\nThe Ancora Principals agree to keep confidential the Confidential Information and to restrict the use of such Confidential Information in accordance\nwith the terms of this Non-Disclosure Agreement, to be bound by this Non-Disclosure Agreement on the same terms as the Director by\ncountersigning this Non-Disclosure Agreement and not to use any Confidential Information in a manner that may be detrimental to the Company\nor\nits subsidiaries, including Riverview Community Bank. The Director, Ancora Advisors and the Ancora Parties shall be responsible for any breach of\nthis Agreement by the Director, any Director Representatives, Ancora Advisors, the Ancora Parties or Ancora Principals.\nThe term "Confidential Information" shall not include information that (a) is at the time of disclosure or thereafter becomes generally\navailable to the public other than as a result of a disclosure by the Director, Ancora Advisors, the Ancora Parties, a Director Representative or an\nAncora Principal in violation of the terms of this Non-Disclosure Agreement; (b) was, prior to disclosure by the Company or Riverview Community\nBank, already in the possession of the Director, a Director Representative or an Ancora Principal; provided that the source of such information was,\nto such person's knowledge after reasonable inquiry, not bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation of confidentiality to, the Company or Riverview Community Bank; (c) becomes available to the Director, a Director Representative or an\nAncora Principal on a non-confidential basis from a source other than the Company, an affiliate of the Company (including Riverview Community\nBank) or an agent, representative, attorney, advisor, director, officer or employee of the Company or Riverview Community Bank (collectively,\nthe\n"Company\nRepresentatives")\nthat\nis,\nto\nsuch\nperson's\nknowledge\nafter\nreasonable\ninquiry,\nnot\nbound\nby\na\nconfidentiality\nagreement\nwith,\nor\nother\ncontractual, legal or fiduciary obligation of confidentiality to, the Company or Riverview Community Bank, and is not, to such person's knowledge\nafter reasonable inquiry, under an obligation to the Company or Riverview Community Bank not to transmit the information to such person; or\n(d) was independently developed by the Director, a Director Representative or an Ancora Principal without reference to or use of the Confidential\nInformation.\nThe Director is aware, and will advise any Director Representative or an Ancora Principal who is informed of the matters that are the\nsubject of this Non-Disclosure Agreement, that the Confidential Information may constitute material, non-public information and of the restrictions\nimposed by the United States securities laws on the purchase or sale of securities by any person who is aware of material, non-public information\nand on the communication of such information to any other person who may purchase or sell such securities on the basis of such information. The\nDirector, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal to whom the Director transmits Confidential\nInformation under this Non-Disclosure Agreement will comply with all applicable federal and state securities laws in connection with the purchase\nor\nsale, directly or indirectly, of securities of the Company or any other entity of which the Director is provided material non-public information in\nhis capacity as a director of the Company or Riverview Community Bank for as long as the Director, Ancora\nExhibit A-2\nAdvisors, the Ancora Parties any Director Representative or any Ancora Principal are in possession of material non-public information about the\nCompany or such other entity. The Director and the Company acknowledge that none of the provisions hereto shall in any way limit Ancora\nAdvisors', the Ancora Parties' or the Ancora Principals' activities in the ordinary course of business if such activities will not violate applicable\nsecurities laws or the obligations set forth in this Non-Disclosure Agreement.\nEach of the Director, any Ancora Principal and any Director Representative to whom the Director transmits Confidential Information\nunder this Non-Disclosure Agreement acknowledges, or shall be deemed to acknowledge, that none of the Company, any affiliate of the Company\nor any Company Representative makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential\nInformation.\nNone\nof\nthe\nCompany,\nany\naffiliate\nof\nthe\nCompany\nor\nany\nCompany\nRepresentative\nshall\nhave\nany\nliability\nto\nthe\nDirector,\nAncora\nAdvisors, the Ancora Parties, any Director Representative or any Ancora Principal hereunder relating to or resulting from the use of the\nConfidential Information by the Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal or any errors\nin\nor omissions from the Confidential Information.\nIn the event that the Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal is requested in\nany proceeding or governmental inquiry to disclose any Confidential Information, the Director will give the Company prompt written notice, to\nthe\nextent not legally prohibited, of such request so that the Company or Riverview Community Bank may seek an appropriate protective order or\nwaive compliance with the applicable provisions of this Non-Disclosure Agreement. If the Company or Riverview Community Bank seeks\na\nprotective\norder,\nthe\nDirector,\nAncora\nAdvisors,\nthe\nAncora\nParties,\nand\nthe\nAncora\nPrincipals\nagree\nto,\nand\nshall\ncause\nany\nDirector\nRepresentative\nto, provide such cooperation as the Company or Riverview Community Bank shall reasonably request and in no event will they oppose action by\nthe\nCompany or Riverview Community Bank to obtain a protective order or other relief to prevent the disclosure of Confidential Information\nor\nto\nobtain reliable assurance that confidential treatment will be afforded to the Confidential Information. If in the absence of a protective order, the\nDirector, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal, based upon the advice of counsel, is legally\nrequired to disclose Confidential Information, such person or entity may disclose without liability under this Non-Disclosure Agreement such\nportion of the Confidential Information that counsel advises that the Director, Ancora Advisors, the Ancora Parties, any Director Representative or\nany Ancora Principal is legally required to disclose, so long as the recipient of such Confidential Information is informed of this Non-Disclosure\nAgreement and the confidential nature of such Confidential Information. For the avoidance of doubt, there shall be no legal requirement applicable\nto the Director, Ancora Advisors, the Ancora Parties, or the Ancora Principals to disclose any Confidential Information solely by virtue of the fact\nthat, absent such disclosure, such parties would be prohibited from purchasing, selling, or engaging in derivative or other transactions with respec\nto securities of the Company.\nThe parties agree that irreparable damage would occur in the event any of the provisions of this Non-Disclosure Agreement were\nnot\nperformed in accordance with the terms hereof and that such damage would not be adequately compensable in monetary damages. Accordingly, the\nparties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Non-\nExhibit A-3\nDisclosure Agreement and to enforce specifically the terms and provisions of this Non-Disclosure Agreement exclusively in the State\nof\nWashington with a court of competent jurisdiction located in Clark County, Washington (the "Washington Courts"), in addition to any other\nremedies at law or in equity, and each party agrees it will not take any action, directly or indirectly, in opposition to the party seeking relief on the\ngrounds that any other remedy or relief is available at law or in equity. Each of the parties hereto agrees to waive any bonding requirement\nunder\nany applicable law, in the case any other party seeks to enforce the terms by way of equitable relief. In the event of litigation relating to this Non-\nDisclosure Agreement, if a court of competent jurisdiction determines that this Non-Disclosure Agreement has been breached by the Director,\nAncora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal, Ancora Advisors and the Ancora Parties will reimburse\nthe Company for its reasonable and documented out-of-pocket costs and expenses (including legal fees and expenses) incurred in connection with\nall\nsuch\nlitigation\n(including\nany\nappeal\nrelating\nthereto).\nFurthermore,\neach\nof\nthe\nparties\nhereto\nirrevocably\n(a)\nconsents\nto\nsubmit\nitself\nto\nthe\npersonal jurisdiction of the Washington Courts in the event any dispute arises out of this Non-Disclosure Agreement, (b) agrees that it shall not\nattempt to deny or defeat such personal jurisdiction by motion or other request for leave from the Washington Courts, (c) agrees that it shall not\nbring any action relating to this Non-Disclosure Agreement in any court other than the Washington Courts, (d) waives the right to trial by jury,\nand\n(d) consents to service of process by the United States Postal Service or reputable overnight mail delivery service, in each case, signature requested,\nto the address set forth in Section 14 of the Standstill Agreement or as otherwise provided by applicable law. THIS NON-DISCLOSURE\nAGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING WITH RESPECT TO VALIDITY, INTERPRETATION, EFFECT\nAND ENFORCEMENT, BY THE LAWS OF THE STATE OF WASHINGTON WITHOUT GIVING EFFECT TO THE CHOICE OF LAW\nPRINCIPLES THEREOF THAT WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.\nThis Non-Disclosure Agreement may not be amended except in writing signed by all the parties hereto. No failure or delay by either\nparty in exercising any right hereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of\nany right hereunder.\nThe provisions of this Non-Disclosure Agreement relating to confidentiality shall terminate two (2) years after the Director (or any\nsubstitute director appointed to replace the Director in accordance with Sections 1 and 4 of the Standstill Agreement) ceases to be a director of the\nCompany or Riverview Community Bank, except that any Confidentia Information constituting trade secrets of the Company or Riverview\nCommunity Bank (as defined in 18 U.S.C. 8 1839(3)) shall be kept confidential in accordance with the obligations of this Non-Disclosure\nAgreement for such longer time as such information constitutes a trade secret of the Company or Riverview Community Bank. The invalidity\nor\nunenforceability of any provision of this Non-Disclosure Agreement shall not affect the validity or enforceability of any other provision hereof.\nAll Confidential Information shall remain the property of the Company or Riverview Community Bank and none of the Directors,\nAncora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal shall by virtue of any disclosure of or use of any\nExhibit A-4\nConfidential Information acquire any rights with respect thereto, all of which rights (including all intellectual property rights) shall remain\nexclusively with the Company or Riverview Community Bank. At any time after the date on which the Director (or any substitute director\nappointed to replace the Director in accordance with Sections 1 and 4 of the Standstill Agreement) is no longer a director of the Company, upon the\nrequest of the Company for any reason, the Director and the Ancora Principals will, and will cause Ancora Advisors, the Ancora Parties, and any\nDirector Representative to, promptly return to the Company or destroy all hard copies of the Confidential Information and use reasonable efforts to\npermanently erase or delete all electronic copies of the Confidential Information in the possession or control of the Director, Ancora Advisors, the\nAncora Parties, any Director Representative or any Ancora Principal. Notwithstanding anything to the contrary contained in this paragraph, the\nDirector, the Ancora Principals, Ancora Advisors, the Ancora Parties and any Director Representative shall be permitted to retain such Confidential\nInformation as is necessary to enable them to comply with any applicable document retention requirements under applicable law\nor\nregulation\nand\nto retain any computer records and computer files containing any Confidential Information if required pursuant to their respective current automatic\narchiving and backup procedures; provided, however, that such retention shall be solely for legal, regulatory or archival purposes, as the case\nmay\nbe.\nUnless and until any substitute director appointed in accordance with Sections 1 and 4 of the Standstill Agreement executes a joinder to\nthis\nNon-Disclosure Agreement and agrees to be bound by the terms hereof applicable to the Director, the Ancora Principals shall not be permitted\nto discuss Confidential Information with, or obtain Confidential Information from, such substitute director.\n[Signature Page Follows]\nExhibit A-5\nAcceptance of the above terms shall be indicated by having this Non-Disclosure Agreement countersigned by the Director, the Ancora Principal,\nAncora Advisors and the Ancora Parties.\nSincerely,\nRIVERVIEW BANCORP, INC.\nBy: /s/Pat Sheaffer\nName: Pat Sheaffer\nTitle: Chairman and CEO\nAcknowledged and agreed as of the date first written above:\n/s/James M. Chadwick\nJames M. Chadwick, as Director\n/s/Frederick DiSanto\nFrederick DiSanto, as Ancora Principal\nANCORA ADVISORS, LLC\nMERLIN PARTNERS,\nAAMAF LP\nANCORA CATALYST FUND LP\nBy:\n/S/Frederick DiSanto\nBy:\n/s/Brian Hopkins\nName: Frederick DiSanto\nName:\nBrian Hopkins\nTitle:\nManaging Member\nTitle:\nManaging Member\nBy:\n/s/Patrick Sweeney\nName: Patrick Sweeney\nTitle: Associate\n[Signature Page to Non-Disclosure Agreement]\nExhibit A-6	Exhibit A\nNon-Disclosure Agreement\nAugust 26, 2015\nReference is made to the Standstill Agreement, dated August 26, 2015 (the “Standstill Agreement”), by and among Riverview Bancorp,\nInc. (the “Company”), the Ancora Parties and James M. Chadwick, as representative of the Ancora Parties (the “Director”). Capitalized terms used\nbut not defined herein shall have the meanings ascribed to them in the Standstill Agreement, and the rules of interpretation set forth in Section 8 of\nthe Standstill Agreement shall apply to this Non-Disclosure Agreement mutatis mutandis.\nThe Director may be provided certain information and data in connection with his serving as a director of the Company or Riverview\nCommunity Bank that the Company or Riverview Community Bank wishes to keep confidential, including information (whether furnished in\nwriting or electronic format or orally) regarding the Company’s and Riverview Community Bank’s governance, board of directors, management,\nplans, strategies, business, finances or operations and information that the Company or Riverview Community Bank has obtained from third parties\nand with respect to which the Company or Riverview Community Bank is obligated to maintain confidentiality (collectively, “Confidential\nInformation”). Except as provided in this Non-Disclosure Agreement, the Director will not disclose any Confidential Information in any manner\nwhatsoever or use any Confidential Information other than in connection with serving as a director of the Company or Riverview Community Bank\nwithout, in each instance, securing the prior written consent of the Company (acting through a resolution of a majority of the Company’s directors).\nExcept as set forth in this paragraph, this Non-Disclosure Agreement shall not prevent the Director from privately disclosing\nConfidential Information to (i) officers, directors, accountants and counsel for the Company or Riverview Community Bank, (ii) the Director ’s legal\ncounsel or legal counsel to the Ancora Parties (each a “Director Representative” and collectively, the “Director Representatives”) who needs to\nknow such information for the sole purpose of advising the Director on his actions as a director of the Company or Riverview Community Bank or\nadvising Ancora Advisors, LLC (“Ancora Advisors”) and the Ancora Parties (or the Ancora Affiliates) on its (or their) investment(s) in the\nCompany or (iii) Frederick DiSanto, Brian Hopkins and Patrick Sweeney, each an associate of Ancora Advisors (each an “Ancora Principal” and,\ncollectively, the “Ancora Principals”). Notwithstanding the foregoing, it is understood and agreed that the Director will not disclose any information\nthat the Director learns or obtains in his capacity as a director of the Company or Riverview Community Bank to any Director Representative or any\nAncora Principal to the extent such disclosure would be reasonably likely to constitute a waiver of the attorney-client privilege between the\nCompany or Riverview Community Bank and its counsel or the Company’s or Riverview Community Bank’s attorney work product privilege. The\nDirector also acknowledges and agrees that he will not disclose, and is prohibited by law and regulation from disclosing, to any Director\nRepresentative or any Ancora Principal any reports of examination or other confidential supervisory information of any bank regulatory authority,\nincluding the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of San Francisco, the Federal Deposit Insurance\nCorporation\nExhibit A-1\nand the Office of the Comptroller of the Currency. Any Director Representative shall only be provided Confidential Information to the extent that\nsuch Director Representative is informed of the confidential nature of the Confidential Information and agrees or is otherwise obligated to keep such\ninformation confidential and to restrict the use of such confidential information in accordance with the terms of this Non-Disclosure Agreement.\nThe Ancora Principals agree to keep confidential the Confidential Information and to restrict the use of such Confidential Information in accordance\nwith the terms of this Non-Disclosure Agreement, to be bound by this Non-Disclosure Agreement on the same terms as the Director by\ncountersigning this Non-Disclosure Agreement and not to use any Confidential Information in a manner that may be detrimental to the Company or\nits subsidiaries, including Riverview Community Bank. The Director, Ancora Advisors and the Ancora Parties shall be responsible for any breach of\nthis Agreement by the Director, any Director Representatives, Ancora Advisors, the Ancora Parties or Ancora Principals.\nThe term “Confidential Information” shall not include information that (a) is at the time of disclosure or thereafter becomes generally\navailable to the public other than as a result of a disclosure by the Director, Ancora Advisors, the Ancora Parties, a Director Representative or an\nAncora Principal in violation of the terms of this Non-Disclosure Agreement; (b) was, prior to disclosure by the Company or Riverview Community\nBank, already in the possession of the Director, a Director Representative or an Ancora Principal; provided that the source of such information was,\nto such person’s knowledge after reasonable inquiry, not bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation of confidentiality to, the Company or Riverview Community Bank; (c) becomes available to the Director, a Director Representative or an\nAncora Principal on a non-confidential basis from a source other than the Company, an affiliate of the Company (including Riverview Community\nBank) or an agent, representative, attorney, advisor, director, officer or employee of the Company or Riverview Community Bank (collectively, the\n“Company Representatives”) that is, to such person’s knowledge after reasonable inquiry, not bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Company or Riverview Community Bank, and is not, to such person’s knowledge\nafter reasonable inquiry, under an obligation to the Company or Riverview Community Bank not to transmit the information to such person; or\n(d) was independently developed by the Director, a Director Representative or an Ancora Principal without reference to or use of the Confidential\nInformation.\nThe Director is aware, and will advise any Director Representative or an Ancora Principal who is informed of the matters that are the\nsubject of this Non-Disclosure Agreement, that the Confidential Information may constitute material, non-public information and of the restrictions\nimposed by the United States securities laws on the purchase or sale of securities by any person who is aware of material, non-public information\nand on the communication of such information to any other person who may purchase or sell such securities on the basis of such information. The\nDirector, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal to whom the Director transmits Confidential\nInformation under this Non-Disclosure Agreement will comply with all applicable federal and state securities laws in connection with the purchase\nor sale, directly or indirectly, of securities of the Company or any other entity of which the Director is provided material non-public information in\nhis capacity as a director of the Company or Riverview Community Bank for as long as the Director, Ancora\nExhibit A-2\nAdvisors, the Ancora Parties any Director Representative or any Ancora Principal are in possession of material non-public information about the\nCompany or such other entity. The Director and the Company acknowledge that none of the provisions hereto shall in any way limit Ancora\nAdvisors’, the Ancora Parties’ or the Ancora Principals’ activities in the ordinary course of business if such activities will not violate applicable\nsecurities laws or the obligations set forth in this Non-Disclosure Agreement.\nEach of the Director, any Ancora Principal and any Director Representative to whom the Director transmits Confidential Information\nunder this Non-Disclosure Agreement acknowledges, or shall be deemed to acknowledge, that none of the Company, any affiliate of the Company\nor any Company Representative makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential\nInformation. None of the Company, any affiliate of the Company or any Company Representative shall have any liability to the Director, Ancora\nAdvisors, the Ancora Parties, any Director Representative or any Ancora Principal hereunder relating to or resulting from the use of the\nConfidential Information by the Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal or any errors in\nor omissions from the Confidential Information.\nIn the event that the Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal is requested in\nany proceeding or governmental inquiry to disclose any Confidential Information, the Director will give the Company prompt written notice, to the\nextent not legally prohibited, of such request so that the Company or Riverview Community Bank may seek an appropriate protective order or\nwaive compliance with the applicable provisions of this Non-Disclosure Agreement. If the Company or Riverview Community Bank seeks a\nprotective order, the Director, Ancora Advisors, the Ancora Parties, and the Ancora Principals agree to, and shall cause any Director Representative\nto, provide such cooperation as the Company or Riverview Community Bank shall reasonably request and in no event will they oppose action by the\nCompany or Riverview Community Bank to obtain a protective order or other relief to prevent the disclosure of Confidential Information or to\nobtain reliable assurance that confidential treatment will be afforded to the Confidential Information. If in the absence of a protective order, the\nDirector, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal, based upon the advice of counsel, is legally\nrequired to disclose Confidential Information, such person or entity may disclose without liability under this Non-Disclosure Agreement such\nportion of the Confidential Information that counsel advises that the Director, Ancora Advisors, the Ancora Parties, any Director Representative or\nany Ancora Principal is legally required to disclose, so long as the recipient of such Confidential Information is informed of this Non-Disclosure\nAgreement and the confidential nature of such Confidential Information. For the avoidance of doubt, there shall be no legal requirement applicable\nto the Director, Ancora Advisors, the Ancora Parties, or the Ancora Principals to disclose any Confidential Information solely by virtue of the fact\nthat, absent such disclosure, such parties would be prohibited from purchasing, selling, or engaging in derivative or other transactions with respect\nto securities of the Company.\nThe parties agree that irreparable damage would occur in the event any of the provisions of this Non-Disclosure Agreement were not\nperformed in accordance with the terms hereof and that such damage would not be adequately compensable in monetary damages. Accordingly, the\nparties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Non-\nExhibit A-3\nDisclosure Agreement and to enforce specifically the terms and provisions of this Non-Disclosure Agreement exclusively in the State of\nWashington with a court of competent jurisdiction located in Clark County, Washington (the “Washington Courts”), in addition to any other\nremedies at law or in equity, and each party agrees it will not take any action, directly or indirectly, in opposition to the party seeking relief on the\ngrounds that any other remedy or relief is available at law or in equity. Each of the parties hereto agrees to waive any bonding requirement under\nany applicable law, in the case any other party seeks to enforce the terms by way of equitable relief. In the event of litigation relating to this Non-\nDisclosure Agreement, if a court of competent jurisdiction determines that this Non-Disclosure Agreement has been breached by the Director,\nAncora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal, Ancora Advisors and the Ancora Parties will reimburse\nthe Company for its reasonable and documented out-of-pocket costs and expenses (including legal fees and expenses) incurred in connection with\nall such litigation (including any appeal relating thereto). Furthermore, each of the parties hereto irrevocably (a) consents to submit itself to the\npersonal jurisdiction of the Washington Courts in the event any dispute arises out of this Non-Disclosure Agreement, (b) agrees that it shall not\nattempt to deny or defeat such personal jurisdiction by motion or other request for leave from the Washington Courts, (c) agrees that it shall not\nbring any action relating to this Non-Disclosure Agreement in any court other than the Washington Courts, (d) waives the right to trial by jury, and\n(d) consents to service of process by the United States Postal Service or reputable overnight mail delivery service, in each case, signature requested,\nto the address set forth in Section 14 of the Standstill Agreement or as otherwise provided by applicable law. THIS NON-DISCLOSURE\nAGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING WITH RESPECT TO VALIDITY, INTERPRETATION, EFFECT\nAND ENFORCEMENT, BY THE LAWS OF THE STATE OF WASHINGTON WITHOUT GIVING EFFECT TO THE CHOICE OF LAW\nPRINCIPLES THEREOF THAT WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.\nThis Non-Disclosure Agreement may not be amended except in writing signed by all the parties hereto. No failure or delay by either\nparty in exercising any right hereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of\nany right hereunder.\nThe provisions of this Non-Disclosure Agreement relating to confidentiality shall terminate two (2) years after the Director (or any\nsubstitute director appointed to replace the Director in accordance with Sections 1 and 4 of the Standstill Agreement) ceases to be a director of the\nCompany or Riverview Community Bank, except that any Confidential Information constituting trade secrets of the Company or Riverview\nCommunity Bank (as defined in 18 U.S.C . § 1839(3)) shall be kept confidential in accordance with the obligations of this Non-Disclosure\nAgreement for such longer time as such information constitutes a trade secret of the Company or Riverview Community Bank. The invalidity or\nunenforceability of any provision of this Non-Disclosure Agreement shall not affect the validity or enforceability of any other provision hereof.\nAll Confidential Information shall remain the property of the Company or Riverview Community Bank and none of the Directors,\nAncora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal shall by virtue of any disclosure of or use of any\nExhibit A-4\nConfidential Information acquire any rights with respect thereto, all of which rights (including all intellectual property rights) shall remain\nexclusively with the Company or Riverview Community Bank. At any time after the date on which the Director (or any substitute director\nappointed to replace the Director in accordance with Sections 1 and 4 of the Standstill Agreement) is no longer a director of the Company, upon the\nrequest of the Company for any reason, the Director and the Ancora Principals will, and will cause Ancora Advisors, the Ancora Parties, and any\nDirector Representative to, promptly return to the Company or destroy all hard copies of the Confidential Information and use reasonable efforts to\npermanently erase or delete all electronic copies of the Confidential Information in the possession or control of the Director, Ancora Advisors, the\nAncora Parties, any Director Representative or any Ancora Principal. Notwithstanding anything to the contrary contained in this paragraph, the\nDirector, the Ancora Principals, Ancora Advisors, the Ancora Parties and any Director Representative shall be permitted to retain such Confidential\nInformation as is necessary to enable them to comply with any applicable document retention requirements under applicable law or regulation and\nto retain any computer records and computer files containing any Confidential Information if required pursuant to their respective current automatic\narchiving and backup procedures; provided, however, that such retention shall be solely for legal, regulatory or archival purposes, as the case may\nbe.\nUnless and until any substitute director appointed in accordance with Sections 1 and 4 of the Standstill Agreement executes a joinder to\nthis Non-Disclosure Agreement and agrees to be bound by the terms hereof applicable to the Director, the Ancora Principals shall not be permitted\nto discuss Confidential Information with, or obtain Confidential Information from, such substitute director.\n[Signature Page Follows]\nExhibit A-5\nAcceptance of the above terms shall be indicated by having this Non-Disclosure Agreement countersigned by the Director, the Ancora Principal,\nAncora Advisors and the Ancora Parties.\nSincerely,\nRIVERVIEW BANCORP, INC.\nBy: /s/Pat Sheaffer\nName: Pat Sheaffer\nTitle: Chairman and CEO\nAcknowledged and agreed as of the date first written above:\n/s/James M. Chadwick\nJames M. Chadwick, as Director\n/s/Frederick DiSanto\nFrederick DiSanto, as Ancora Principal\nANCORA ADVISORS, LLC\nMERLIN PARTNERS,\nAAMAF LP\nANCORA CATALYST FUND LP\nBy: /s/Frederick DiSanto\nBy:\n/s/Brian Hopkins\nName: Frederick DiSanto\nName:\nBrian Hopkins\nTitle:\nManaging Member\nTitle:\nManaging Member\nBy: /s/Patrick Sweeney\nName: Patrick Sweeney\nTitle:\nAssociate\n[Signature Page to Non-Disclosure Agreement]\nExhibit A-6
8a7c202263381bfbeb524450b7008425.pdf	effective_date jurisdiction party	EXHIBIT (d)(6)\n[McDonald Investments Logo]\nMarch 21, 2001\nCONFIDENTIAL\nMcDonald Investments Inc.\nMcDonald Investment Center\n800 Superior Avenue\nCleveland, Ohio 44114\nMcDonald Investments Inc.,\nA KeyCorp Company\n800 Superior Avenue\nCleveland, Ohio 44114-2603\nTel: 216 443-2300\nLadies and Gentlemen:\nYou have advised us that you are acting on behalf of SMC Corporation (the "Company") in its consideration of a possible sale of its business, and you have agreed to discuss with us our possible interest in\nacquiring the Company. As a condition to entering into such discussions, you and the Company have required that we agree to keep strictly confidential all information provided to us with respect to this matter.\nThis letter will confirm our agreement with you and the Company to retain in strict confidence all oral or written information furnished to us by or on behalf of the Company, its representatives or agents, whether\nfurnished before or after the date of this letter, and all notes, analyses, compilations, studies or other documents, whether prepared by us or others, which contain or otherwise reflect such information (collectively,\n"Confidential Information") . For purposes of this agreement, Confidential Information does not include information which (i) is or becomes generally available to the public other than as a result of disclosure by us,\n(ii) was available to us on a non-confidential basis prior to its disclosure by or on behalf of the Company, or (iii) becomes available to us on a non-confidential basis from a source other than the Company or its\nrepresentatives who is not bound by a confidentiality agreement with the Company, its representatives or its agents or otherwise prohibited from transmitting the information to us by a contractual, legal or fiduciary\nobligation.\nWe will use any Confidential Information only for the purpose of evaluating the proposed transaction and will not use it for any other purpose. Without the specific prior written consent of the Company or as\nexpressly otherwise permitted by the terms hereof, we also will not disclose any Confidential Information to any other person or entity other than our directors, officers, employees and advisors who require such\nmaterial for the purpose of evaluating the proposed transaction (provided that such persons shall be informed by us of the confidential nature of the Confidential Information and of the fact that its use is subject to the\nterms of this agreement). We agree to be jointly and severally liable for any breach of this agreement by any of those persons to whom we provide any Confidential Information and we agree to indemnify and hold\nharmless the Company from any damage, loss, cost or liability, including legal fees, arising out of or resulting from such breach.\nWithout the prior written consent of the Company, we and our representatives will not disclose to any person (i) the fact that the Confidential Information has been made available to us or that we have inspected\nany portion of the Confidential Information, (ii) the fact that any discussions or negotiations are taking place concerning a possible transaction, or (iii) any of the terms, conditions or other facts with respect to any\npossible transaction, including the status thereof, unless and only to the extent that such disclosure (after making reasonable efforts to avoid such disclosure and after advising and consulting with the Company about\nyour intention to make, and the proposed contents of, such\ndisclosure) is, in the opinion of our counsel, required to be made by us in order to satisfy our obligations under applicable United States securities laws.\nIn the event that we or our representatives are requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, Civil Investigative Demand or similar process) to disclose\nany of the Confidential Information, it is agreed that we or such representative, as the case may be, will provide the Company with prompt notice of such request(s) so that it may seek an appropriate protective order\nor other appropriate remedy and/or waive our compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or that the Company grants a waiver hereunder,\nwe may furnish that portion (and only that portion) of the Confidential Information which, in the written opinion of our counsel, we are legally compelled to disclose and will exercise our best efforts to obtain reliable\nassurance that confidential treatment will be accorded any Confidential Information so furnished.\nWithout the prior written consent of the Company, (i) neither we nor those of our Representatives who are aware of the Evaluation Material and/or the possibility of an Acquisition Transaction will initiate or cause to\nbe initiated any communications with any employee of the Company concerning the Confidential Information or any possible transaction and (ii) none of our directors, officers or employees who are aware of the\nConfidential Information and/or the possibility of a transaction will, for the two-year period from the date of this letter agreement, solicit or cause to be solicited the employment of or hire any employee of the Company\nwho has not been involuntarily terminated by the Company.\nWe agree that, for a period of two years from the date of this agreement, unless such action shall have been specifically invited in writing by the Board of Directors of the Company, neither we nor any of our\naffiliates or Advisors will, directly or indirectly, (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, participate in or cause or in any way assist any other person to effect or seek, offer or propose\n(whether publicly or otherwise) to effect or participate in (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the Company or any of its subsidiaries, (ii) any tender or exchange offer or\nmerger or other business combination involving the Company or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or\nany of its subsidiaries or (iv) any "solicitation" of "proxies" (as such terms are used in the proxy rules promulgated by the Securities and Exchange Commission) or consents to vote any voting securities of the\nCompany, (b) form, join or in any way participate in a "group" (as defined under the Securities Exchange Act of 1934, as amended) with respect to any of the types of matters set forth in (a) above, (c) otherwise act,\nalone or in concert with others, to seek to control or influence the management, the Board of Directors or policies of the Company, (d) take any action which might force the Company to make a public announcement\nregarding any of the types of matters set forth in (a) above, or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing. We also agree during any such period not to\nrequest the Company (or its directors, officers, employees, stockholders or agents), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence).\nWe acknowledge that we are aware, and will advise our representatives, that the federal securities laws prohibit any person who has received from an issuer material, non-public information from purchasing or\nselling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\nIf we determine not to proceed with a transaction or upon the written request of the Company, we will promptly deliver to the Company all documents or other materials furnished by the Company to us or our\nrepresentatives constituting Confidential Information, together with all copies thereof. In the event of such request, all other documents or other matter constituting Confidential Information in our\n2\npossession or in the possession of our representatives will be destroyed, with any such destruction confirmed by us in writing to the Company.\nWe acknowledge that a breach of our obligations hereunder will cause irreparable harm to the Company for which monetary damages are not adequate compensation. Therefore, without prejudice to the rights and\nremedies otherwise available to it, the Company shall be entitled to equitable relief by way of injunction if we or any of our representatives breach or threaten to breach any of the provisions of this agreement. For\nsuch purpose, we hereby consent to jurisdiction of the United States District Court for Oregon and waive any obligation the Company may have to post a bond or other security as a condition to obtaining such\ninjunctive or other equitable relief.\nAlthough we understand that the Company has endeavored to include in the Confidential Information information known to it which it believes to be relevant for the purpose of our investigation, we acknowledge that\nneither you, the Company nor its agents or its representatives makes any representation or warranty as to the accuracy or completeness of the Confidential Information. We agree that neither you, the Company nor\nits agents or its representatives shall have any liability to us or any of our representatives resulting from the use of the Confidential Information by us or such representatives. Only those representations and\nwarranties that may be made to us or our affiliates in a definitive written agreement for a proposed transaction, when, as and if executed and subject to such limitations and restrictions as maybe specified therein,\nshall have any legal effect, and we agree that if we determine to engage in a transaction such determination will be based solely on the terms of such written agreement and on our own investigation, analysis and\nassessment of the business to be acquired.\nWe acknowledge that the Company reserves the right to reject any and all offers to acquire the Company.\nThis letter constitutes the entire agreement of the parties with respect to the subject matter hereof. The agreements set forth herein may be modified or waived only by a separate writing signed by the Company\nand us expressly so modifying or waiving such agreements. Except as otherwise provided herein, the rights and obligations provided by this agreement shall expire on the third anniversary of the date first above\nwritten.\nWe further understand and agree that no failure or delay by the Company or McDonald in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\nThis agreement shall be governed by and construed in accordance with the laws of the State of Oregon, without giving effect to the conflict of laws or provisions thereof. We agree and consent to personal\njurisdiction and service and venue in any federal or state court within the State of Oregon\n3\nhaving subject matter jurisdiction, for the purposes of any action, suit or proceeding arising out of or related to this agreement.\nIf you are in agreement with the foregoing, please sign and return one copy of this letter, which thereupon will constitute our Agreement with respect to the subject matter hereof.\nVery truly yours,\n/s/ Raj Trikha\nBy /s/ Kay Toolson\non behalf of\nMonaco Coach Corp.\nConfirmed and agreed to as of\nthe date first above written:\nMcDONALD INVESTMENTS INC.\n(Individually and as agent for SMC Corporation)\nBy: /s/ Raj Trikha\nName: Raj Trikha\nTitle: Managing Director\n4	EXHIBIT (d)(6)\n[McDonald Investments Logo]\nMarch 21, 2001\nCONFIDENTIAL\nMcDonald Investments Inc. McDonald Investments Inc.,\nMcDonald Investment Center A KeyCorp Company\n800 SuperiorAvenue 800 SuperiorAvenue\nCleveland, Ohio 44114 Cleveland, Ohio 44114-2603\nTel: 216 443-2300\nLadies and G entlemen:\nYou have advised us thatyou are acting on behalf ofSMC Corporation (the "Company") in its consideration ofa possible sale of is business, and you have agreed to discuss with us our possible interestin\nacquiring the Company. As a condition to entering into such discussions, you and the Company have required that we agree to keep strictly confidential all information provided to us with respect to this matter.\nThis letter will confirm our agreement with you and the Company to retain in strict confidence all oral or written information furnished to us by or on behalf of the Company, its representatives or agents, whether\nfurnished before or after the date of this letter, and all notes, analyses, compilations, studies or other documents, whether prepared by us or others, which contain or otherwise reflect such information (collectively,\n"C onfidential Information"). For purposes of this agreement, Confidential Information does not include information which (i) is or becomes generally available to the public other than as a result of disclosure by us,\n(ii) was available to us on a non-confidential basis priorto is disclosure by or on behalf of the Company, or (iii) becomes available to us on a non-confidential basis from a source otherthan the Company or is\nrepresentatives who is not bound by a confidentiality agreement with the Company, its representatives or its agents or otherwise prohibited from transmitting the information to us by a contractual, legal or fiducian/\nobligation.\nWe will use any Confidential Information only for the purpose of evaluating the proposed transaction and will not use it for any other purpose. Without the specific prior written consent of the Company or as\nexpressly otherwise permitted by the terms hereof, we also will not disclose any Confidential Information to any other person or entity otherthan our directors, officers, employees and advisors who require such\nmaterial for the purpose of evaluating the proposed transaction (provided that such persons shall be informed by us of the confidential nature of the Confidential Information and of the fact that is use is subject to the\nterms ofthis agreement). We agree to be jointly and severally liable for any breach of this agreement by any of those persons to whom we provide any Confidential Information and we agree to indemnify and hold\nharmless the Company from any damage, loss, costor liability, including legal fees, arising out of or resulting from such breach.\nWithout the prior written consent of the Company, we and our representatives will not disclose to any person (i) the fact that the Confidential Information has been made available to us orthat we have inspected\nany portion of the Confidential Information, (ii) the fact that any discussions or negotiations are taking place concerning a possible tIansaction, or (iii) any of the terms, conditions or other facs with respect to any\npossible transaction, including the status thereof, unless and only to the extent that such disclosure (after making reasonable efforts to avoid such disclosure and after advising and consulting with the Company about\nyour intention to make, and the proposed contents of, such\ndisclosure) is, in the opinion ofourcounsel, required to be made by us in order to satisfy ourobligations underapplicable United States securities laws.\nIn the event that we or our representatives are requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, Civil Investigative Demand or similar process) to disclose\nany of the Confidential Information, it is agreed that we or such representative, as the case may be, will provide the Company with prompt notice of such request(s) so that it may seek an appropriate protective order\nor other appropriate remedy and/or waive our compliance with the provisions ofthis Agreement. In the event that such protective order or other remedy is not obtained, orthat the Company grants a waiver hereunder,\nwe may furnish that portion (and only that portion) of the Confidential Information which, in the written opinion ofour counsel, we are legally compelled to disclose and will exercise our best efforts to obtain reliable\nassurance that confidential treatment will be accorded any Confidential Information so furnished.\nWithout the prior written consent of the Company, (i) neither we northose of our Representatives who are aware of the Evaluation Material and/or the possibility of an Acquisition Transaction will initiate or cause to\nbe initiated any communications with any employee of the Company concerning the Confidential Information or any possible transaction and (ii) none of our directors, officers or employees who are aware of the\nConfidential Information and/or the possibility of a transaction will, forthe two-year period from the date ofthis letter agreement, solicit or cause to be solicited the employment of or hire any employee of the Company\nwho has not been involuntarily terminated by the Company.\nWe agree that, for a period of two years from the date of this agreement, unless such action shall have been specifically invited in writing by the Board of Directors of the Company, neither we nor any of our\naffiliates or Advisors will, directly or indirectly, (a) effect or seek, offer or propose (whether publicly or othenNise) to effect, participate in or cause or in any way assist any other person to effector seek, offer or propose\n(whether publicly or othenNise) to effector participate in (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the Company or any of is subsidiaries, (ii) any tender or exchange offer or\nmerger or other business combination involving the Company or any of is subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinany transaction with respect to the Company or\nany of its subsidiaries or (iv) any "solicitation" of "proxies" (as such terms are used in the proxy rules promulgated by the Securities and Exchange Commission) or consents to vote any voting securities of the\nCompany, (b) form, join or in any way participate in a "group" (as defined under the Securities Exchange Act of 1934, as amended) with respect to any of the types of matters set forth in (a) above, (c) otherwise act,\nalone or in concert with others, to seek to control or influence the management, the Board of Directors or policies of the Company, (d) take any action which might force the Company to make a public announcement\nregarding any of the types of matters set forth in (a) above, or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing. We also agree during any such period not to\nrequest the Company (or its directors, officers, employees, stockholders or agents), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence).\nWe acknowledge that we are aware, and will advise our representatives, that the federal securities laws prohibit any person who has received from an issuer material, non-public information from purchasing or\nselling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\nIf we determine not to proceed with a transaction or upon the written request of the Company, we will promptly deliver to the Company all documents or other materials furnished by the Company to us or our\nrepresentatives constituting Confidential Information, together with all copies thereof. In the event of such request, all other documents or other matter constituting Confidential Information in our\npossession or in the possession of our representatives will be destroyed, with any such destruction confirmed by us in writing to the Company.\nWe acknowledge that a breach of our obligations hereunder will cause irreparable harm to the Company for which monetary damages are not adequate compensation. Therefore, without prejudice to the rights and\nremedies otherwise available to it, the Company shall be entitled to equitable relief by way of injunction if we or any ofour representatives breach or threaten to breach any of the provisions of this agreement. For\nsuch purpose, we hereby consent to jurisdiction of the United States District Courtfor Oregon and waive any obligation the Company may have to posta bond or other security as a condition to obtaining such\ninjunctive or other equitable relief.\nAlthough we understand that the Company has endeavored to include in the Confidential Information information known to it which it believes to be relevantfor the purpose of our investigation, we acknowledge that\nneither you, the Company nor its agenE or its representatives makes any representation or warranty as to the accuracy or completeness of the Confidential Information. We agree that neither you, the Company nor\nits agents or is representatives shall have any liability to us or any ofour representatives resulting from the use of the Confidential Information by us or such representatives. Only those representations and\nwarranties that may be made to us or our affiliates in a definitive written agreement for a proposed transaction, when, as and if executed and subject to such limitations and restrictions as maybe specified therein,\nshall have any legal effect, and we agree that if we determine to engage in a transaction such determination will be based solely on the terms of such written agreement and on our own investigation, analysis and\nassessment of the business to be acquired.\nWe acknowledge that the Company reserves the right to reject any and all offers to acquire the Company.\nThis letter constitutes the entire agreement of the parties with respect to the subject matter hereof. The agreements set forth herein may be modified or waived only by a separate writing signed by the Company\nand us expressly so modifying or waiving such agreements. Except as othenNise provided herein, the rights and obligations provided by this agreement shall expire on the third anniversary of the date first above\nwritten.\nWe further understand and agree that no failure or delay by the Company or McDonald in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other orfurther exercise thereof orthe exercise of any right, power or privilege hereunder.\nThis agreement shall be governed by and construed in accordance with the laws of the State of Oregon, without giving effect to the conflict of laws or provisions thereof. We agree and consent to personal\njurisdiction and service and venue in any federal or state court within the State of Oregon\nhaving subject matterjurisdiction, for the purposes of any action, suit or proceeding arising out of or related to this agreement.\nIf you are in agreement with the foregoing, please sign and return one copy of this letter, which thereupon will constitute our Agreement with respect to the subject matter hereof.\nVeiy truly yours,\n/5/ Raj Trikha\nBy /5/ Kay Toolson\non behalf of\nMonaco Coach Corp.\nConfirmed and agreed to as of\nthe date first above written:\nMCDONALD INVESTMENTS INC.\n(Individually and as agentfor SMC Corporation)\nBy: /s/ Raj Trikha\nName: RajTrikha\nTitle: Managing Director	EXHIBIT (d)(6)\n[McDonald Investments Logo]\nMarch 21, 2001\nCONFIDENTIAL\nMcDonald Investments Inc.\nMcDonald Investments Inc.,\nMcDonald Investment Center\nA KeyCorp Company\n800 Superior Avenue\n800 Superior Avenue\nCleveland, Ohio 44114\nCleveland, Ohio 44114-2603\nTel: 216 443-2300\nLadies and Gentlemen:\nYou have advised us that you are acting on behalf of SMC Corporation (the "Company") in its consideration of a possible sale of its business, and you have agreed to discuss with us our possible interest in\nacquiring the Company As a condition to entering into such discussions, you and the Company have required that we agree to keep strictly confidential all information provided to us with respect to this matter.\nThis letter will confirm our agreement with you and the Company to retain in strict confidence all oral or written information furnished to us by or on behalf of the Company, its representatives or agents, whether\nfurnished before or after the date of this letter, and all notes, analyses, compilations, studies or other documents, whether prepared by us or others, which contain or otherwise reflect such information (collectively,\n"Confidential Information"). For purposes of this agreement, Confidential Information does not include information which (i) is or becomes generally available to the public other than as a result of disclosure by us,\n(ii) was available to us on a non-confidential basis prior to its disclosure by or on behalf of the Company, or (iii) becomes available to us on a non-confidential basis from a source other than the Company or its\nrepresentatives who is not bound by a confidentiality agreement with the Company, its representatives or its agents or otherwise prohibited from transmitting the information to us by a contractual, lega or fiduciary\nobligation.\nWe will use any Confidential Information only for the purpose of evaluating the proposed transaction and will not use it for any other purpose. Without the specific prior written consent of the Company or\nas\nexpressly otherwise permitted by the terms hereof, we also wil not disclose any Confidential Information to any other person or entity other than our directors, officers, employees and advisors who require such\nmaterial for the purpose of evaluating the proposed transaction (provided that such persons shall be informed by us of the confidential nature of the Confidential Information and of the fact that its use is subject\nto\nthe\nterms of this agreement). We agree to be jointly and severally liable for any breach of this agreement by any of those persons to whom we provide any Confidential Information and we agree to indemnify and hold\nharmless the Company from any damage, loss, cost or liability, including legal fees, arising out of or resulting from such breach.\nWithout the prior written consent of the Company, we and our representatives will not disclose to any person (i) the fact that the Confidential Information has been made available to us or that we have inspected\nany portion of the Confidential Information, (ii) the fact that any discussions or negotiations are taking place concerning a possible transaction, or (iii) any of the terms, conditions or other facts with respect to any\npossible transaction, including the status thereof, unless and only to the extent that such disclosure (after making reasonable efforts to avoid such disclosure and after advising and consulting with the Company about\nyour intention to make, and the proposed contents of, such\ndisclosure) is, in the opinion of our counsel, required to be made by us in order to satisfy our obligations under applicable United States securities laws.\nIn the event that we or our representatives are requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, Civil Investigative Demand or similar process) to disclose\nany of the Confidential Information, it is agreed that we or such representative, as the case may be, will provide the Company with prompt notice of such request(s) so that it may seek an appropriate protective order\nor other appropriate remedy and/or waive our compliance with the provisions of this Agreement In the event that such protective order or other remedy is not obtained, or that the Company grants a waiver hereunder,\nwe may furnish that portion (and only that portion) of the Confidential Information which, in the written opinion of our counsel, we are legally compelled to disclose and will exercise our best efforts to obtain reliable\nassurance that confidential treatment wil be accorded any Confidentia Information so furnished.\nWithout the prior written consent of the Company, (i) neither we nor those of our epresentatives who are aware of the Evaluation Material and/or the possibility of an Acquisition Transaction will initiate or cause to\nbe initiated any communications with any employee of the Company concerning the Confidential Information or any possible transaction and (ii) none of our directors, officers or employees who are aware of the\nConfidential Information and/or the possibility of a transaction will, for the two-year period from the date of this letter agreement, solicit or cause to be solicited the employment of or hire any employee of the Company\nwho has not been involuntarily terminated by the Company.\nWe agree that for a period of two years from the date of this agreement, unless such action shall have been specifically invited in writing by the Board of Directors of the Company, neither we nor any of our\naffiliates or Advisors will, directly or indirectly, (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, participate in or cause or in any way assist any other person to effect or seek, offer or propose\n(whether publicly or otherwise) to effect or participate in (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the Company or any of its subsidiaries, (ii) any tender or exchange offer or\nmerger or other business combination involving the Company or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or\nany of its subsidiaries or (iv) any "solicitation" of "proxies" (as such terms are used in the proxy rules promulgated by the Securities and Exchange Commission) or consents to vote any voting securities of the\nCompany, (b) form, join or in any way participate in a "group" (as defined under the Securities Exchange Act of 1934, as amended) with respect to any of the types of matters set forth in (a) above, (c) otherwise act,\nalone or in concert with others, to seek to control or influence the management, the Board of Directors or policies of the Company (d) take any action which might force the Company to make a public announcement\nregarding any of the types of matters set forth in (a) above, or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing. We also agree during any such period no to\nrequest the Company (or its directors, officers, employees, stockholders or agents), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence).\nWe acknowledge that we are aware, and will advise our representatives, that the federal securities laws prohibit any person who has received from an issuer material, non-public information from purchasing or\nselling securities of such issuer or from communicating such information to any other person under circumstances in which is reasonably foreseeable that such person is likely to purchase or sel such securities.\nIf we determine not to proceed with a transaction or upon the written request of the Company, we will promptly deliver to the Company all documents or other materials furnished by the Company to us or our\nrepresentatives constituting Confidential Information, together with all copies thereof. In the event of such request, all other documents or other matter constituting Confidential Information in our\n2\npossession or in the possession of our representatives wil be destroyed, with any such destruction confirmed by us in writing to the Company.\nWe acknowledge that a breach of our obligations hereunder will cause irreparable harm to the Company for which monetary damages are not adequate compensation. Therefore, without prejudice to the rights and\nremedies otherwise available to it, the Company shal be entitled to equitable relief by way of injunction if we or any of our representatives breach or threaten to breach any of the provisions of this agreement. For\nsuch purpose, we hereby consent to jurisdiction of the United States District Court for Oregon and waive any obligation the Company may have to post a bond or other security as a condition to obtaining such\ninjunctive or other equitable relief.\nAlthough we understand that the Company has endeavored to include in the Confidential Information information known to it which it believes to be relevant for the purpose of our investigation, we acknowledge\nthat\nneither you, the Company nor its agents or its representatives makes any representation or warranty as to the accuracy or completeness of the Confidential Information We agree that neither you, the Company nor\nits agents or its representatives shal have any liability to us or any of our representatives resulting from the use of the Confidential Information by us or such representatives. Only those representations and\nwarranties that may be made to us or our affiliates in a definitive written agreement for a proposed transaction, when, as and if executed and subject to such limitations and restrictions as maybe specified therein,\nshal have any legal effect, and we agree that if we determine to engage in a transaction such determination will be based solely on the terms of such written agreement and on our own investigation, analysis and\nassessment of the business to be acquired.\nWe acknowledge that the Company reserves the right to reject any and all offers to acquire the Company.\nThis letter constitutes the entire agreement of the parties with respect to the subject matter hereof. The agreements set forth herein may be modified or waived only by a separate writing signed by the Company\nand us expressly so modifying or waiving such agreements. Except as otherwise provided herein, the rights and obligations provided by this agreement shall expire on the third anniversary of the date first above\nwritten.\nWe further understand and agree that no failure or delay by the Company or McDonald in exercising any right, power or privilege hereunder shal operate as a waiver thereof, nor shal any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\nThis agreement shal be governed by and construed in accordance with the laws of the State of Oregon, without giving effect to the conflict of laws or provisions thereof. We agree and consent to personal\njurisdiction and service and venue in any federal or state court within the State of Oregon\n3\nhaving subject matter jurisdiction, for the purposes of any action, suit or proceeding arising out of or related to this agreement.\nIf you are in agreement with the foregoing, please sign and return one copy of this letter, which thereupon wil constitute our Agreement with respect to the subject matter hereof.\nVery truly yours,\n/s/ aj Trikha\nBy\nIs/ Kay Toolson\non behalf of\nMonaco Coach Corp.\nConfirmed and agreed to as of\nthe date first above written:\nMcDONALD INVESTMENTS INC.\n(Individually and as agent for SMC Corporation)\nBy: /s/ Ra Trikha\nName Raj Trikha\nTitle: Managing Director\n4	EXHIBIT (d)(6)\n[McDonald Investments Logo]\nMarch 21, 2001\nCONFIDENTIAL\nMcDonald Investments Inc.\nMcDonald Investment Center\n800 Superior Avenue\nCleveland, Ohio 44114\nMcDonald Investments Inc.,\nA KeyCorp Company\n800 Superior Avenue\nCleveland, Ohio 44114-2603\nTel: 216 443-2300\nLadies and Gentlemen:\nYou have advised us that you are acting on behalf of SMC Corporation (the "Company") in its consideration of a possible sale of its business, and you have agreed to discuss with us our possible interest in\nacquiring the Company. As a condition to entering into such discussions, you and the Company have required that we agree to keep strictly confidential all information provided to us with respect to this matter.\nThis letter will confirm our agreement with you and the Company to retain in strict confidence all oral or written information furnished to us by or on behalf of the Company, its representatives or agents, whether\nfurnished before or after the date of this letter, and all notes, analyses, compilations, studies or other documents, whether prepared by us or others, which contain or otherwise reflect such information (collectively,\n"Confidential Information") . For purposes of this agreement, Confidential Information does not include information which (i) is or becomes generally available to the public other than as a result of disclosure by us,\n(ii) was available to us on a non-confidential basis prior to its disclosure by or on behalf of the Company, or (iii) becomes available to us on a non-confidential basis from a source other than the Company or its\nrepresentatives who is not bound by a confidentiality agreement with the Company, its representatives or its agents or otherwise prohibited from transmitting the information to us by a contractual, legal or fiduciary\nobligation.\nWe will use any Confidential Information only for the purpose of evaluating the proposed transaction and will not use it for any other purpose. Without the specific prior written consent of the Company or as\nexpressly otherwise permitted by the terms hereof, we also will not disclose any Confidential Information to any other person or entity other than our directors, officers, employees and advisors who require such\nmaterial for the purpose of evaluating the proposed transaction (provided that such persons shall be informed by us of the confidential nature of the Confidential Information and of the fact that its use is subject to the\nterms of this agreement). We agree to be jointly and severally liable for any breach of this agreement by any of those persons to whom we provide any Confidential Information and we agree to indemnify and hold\nharmless the Company from any damage, loss, cost or liability, including legal fees, arising out of or resulting from such breach.\nWithout the prior written consent of the Company, we and our representatives will not disclose to any person (i) the fact that the Confidential Information has been made available to us or that we have inspected\nany portion of the Confidential Information, (ii) the fact that any discussions or negotiations are taking place concerning a possible transaction, or (iii) any of the terms, conditions or other facts with respect to any\npossible transaction, including the status thereof, unless and only to the extent that such disclosure (after making reasonable efforts to avoid such disclosure and after advising and consulting with the Company about\nyour intention to make, and the proposed contents of, such\ndisclosure) is, in the opinion of our counsel, required to be made by us in order to satisfy our obligations under applicable United States securities laws.\nIn the event that we or our representatives are requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, Civil Investigative Demand or similar process) to disclose\nany of the Confidential Information, it is agreed that we or such representative, as the case may be, will provide the Company with prompt notice of such request(s) so that it may seek an appropriate protective order\nor other appropriate remedy and/or waive our compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or that the Company grants a waiver hereunder,\nwe may furnish that portion (and only that portion) of the Confidential Information which, in the written opinion of our counsel, we are legally compelled to disclose and will exercise our best efforts to obtain reliable\nassurance that confidential treatment will be accorded any Confidential Information so furnished.\nWithout the prior written consent of the Company, (i) neither we nor those of our Representatives who are aware of the Evaluation Material and/or the possibility of an Acquisition Transaction will initiate or cause to\nbe initiated any communications with any employee of the Company concerning the Confidential Information or any possible transaction and (ii) none of our directors, officers or employees who are aware of the\nConfidential Information and/or the possibility of a transaction will, for the two-year period from the date of this letter agreement, solicit or cause to be solicited the employment of or hire any employee of the Company\nwho has not been involuntarily terminated by the Company.\nWe agree that, for a period of two years from the date of this agreement, unless such action shall have been specifically invited in writing by the Board of Directors of the Company, neither we nor any of our\naffiliates or Advisors will, directly or indirectly, (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, participate in or cause or in any way assist any other person to effect or seek, offer or propose\n(whether publicly or otherwise) to effect or participate in (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the Company or any of its subsidiaries, (ii) any tender or exchange offer or\nmerger or other business combination involving the Company or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or\nany of its subsidiaries or (iv) any "solicitation" of "proxies" (as such terms are used in the proxy rules promulgated by the Securities and Exchange Commission) or consents to vote any voting securities of the\nCompany, (b) form, join or in any way participate in a "group" (as defined under the Securities Exchange Act of 1934, as amended) with respect to any of the types of matters set forth in (a) above, (c) otherwise act,\nalone or in concert with others, to seek to control or influence the management, the Board of Directors or policies of the Company, (d) take any action which might force the Company to make a public announcement\nregarding any of the types of matters set forth in (a) above, or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing. We also agree during any such period not to\nrequest the Company (or its directors, officers, employees, stockholders or agents), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence).\nWe acknowledge that we are aware, and will advise our representatives, that the federal securities laws prohibit any person who has received from an issuer material, non-public information from purchasing or\nselling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\nIf we determine not to proceed with a transaction or upon the written request of the Company, we will promptly deliver to the Company all documents or other materials furnished by the Company to us or our\nrepresentatives constituting Confidential Information, together with all copies thereof. In the event of such request, all other documents or other matter constituting Confidential Information in our\n2\npossession or in the possession of our representatives will be destroyed, with any such destruction confirmed by us in writing to the Company.\nWe acknowledge that a breach of our obligations hereunder will cause irreparable harm to the Company for which monetary damages are not adequate compensation. Therefore, without prejudice to the rights and\nremedies otherwise available to it, the Company shall be entitled to equitable relief by way of injunction if we or any of our representatives breach or threaten to breach any of the provisions of this agreement. For\nsuch purpose, we hereby consent to jurisdiction of the United States District Court for Oregon and waive any obligation the Company may have to post a bond or other security as a condition to obtaining such\ninjunctive or other equitable relief.\nAlthough we understand that the Company has endeavored to include in the Confidential Information information known to it which it believes to be relevant for the purpose of our investigation, we acknowledge that\nneither you, the Company nor its agents or its representatives makes any representation or warranty as to the accuracy or completeness of the Confidential Information. We agree that neither you, the Company nor\nits agents or its representatives shall have any liability to us or any of our representatives resulting from the use of the Confidential Information by us or such representatives. Only those representations and\nwarranties that may be made to us or our affiliates in a definitive written agreement for a proposed transaction, when, as and if executed and subject to such limitations and restrictions as maybe specified therein,\nshall have any legal effect, and we agree that if we determine to engage in a transaction such determination will be based solely on the terms of such written agreement and on our own investigation, analysis and\nassessment of the business to be acquired.\nWe acknowledge that the Company reserves the right to reject any and all offers to acquire the Company.\nThis letter constitutes the entire agreement of the parties with respect to the subject matter hereof. The agreements set forth herein may be modified or waived only by a separate writing signed by the Company\nand us expressly so modifying or waiving such agreements. Except as otherwise provided herein, the rights and obligations provided by this agreement shall expire on the third anniversary of the date first above\nwritten.\nWe further understand and agree that no failure or delay by the Company or McDonald in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\nThis agreement shall be governed by and construed in accordance with the laws of the State of Oregon, without giving effect to the conflict of laws or provisions thereof. We agree and consent to personal\njurisdiction and service and venue in any federal or state court within the State of Oregon\n3\nhaving subject matter jurisdiction, for the purposes of any action, suit or proceeding arising out of or related to this agreement.\nIf you are in agreement with the foregoing, please sign and return one copy of this letter, which thereupon will constitute our Agreement with respect to the subject matter hereof.\nVery truly yours,\n/s/ Raj Trikha\nBy /s/ Kay Toolson\non behalf of\nMonaco Coach Corp.\nConfirmed and agreed to as of\nthe date first above written:\nMcDONALD INVESTMENTS INC.\n(Individually and as agent for SMC Corporation)\nBy: /s/ Raj Trikha\nName: Raj Trikha\nTitle: Managing Director\n4
8c8834694f713f0a65291e5bbd11d56f.pdf	effective_date jurisdiction party term	EXHIBIT B\nNON-DISCLOSURE AGREEMENT\nWHEREAS, this Non-Disclosure Agreement (“Agreement”) is entered into as of March 17, 2004 (“Effective Date”) between the NYMEX\nHoldings, Inc. (“NYMEX” or “Disclosing Party”) and Vincent Viola (“Advisor” or “Receiving Party”) (each of NYMEX and Advisor is hereinafter\nreferred to individually as a “Party” or collectively as the “Parties”) in connection with a business venture (“Arrangement”); and\nWHEREAS, NYMEX possess its own proprietary, financial, business, and marketing information relating to the Arrangement; and\nWHEREAS, in order to begin the discussions regarding the Arrangement NYMEX is willing to disclose to Advisor certain information and\nrelated materials that NYMEX considers to be confidential and secret and in which NYMEX has a proprietary interest, subject to the terms and\nconditions set forth below.\nNOW, THEREFORE, in consideration of the disclosure of any Confidential Information (as defined below) the covenants and premises\ncontained herein and other good and valuable consideration the sufficiency of which is hereby acknowledged, and intending to be legally bound\nhereby, the Parties hereto agree as follows:\n1. The following definitions shall apply for purposes of this Agreement:\n“Affiliate” means, when used with respect to any Person (as defined below), any other Person directly or indirectly controlling, controlled\nby or under common control with, such Person.\n“Agreement” means this Agreement, as amended from time to time.\n“Arrangement” means any business venture(s) discussed between the Parties.\n“Confidential Information” shall mean any and all of NYMEX’s confidential, secret or proprietary information, whether written or oral,\nincluding but not limited to, products or services, personnel, procedures of operation, business or marketing plans, business methods and\npractices, compilations of data or information concerning NYMEX’s business, financial data, business proposals, names of NYMEX’s suppliers\nand customers, possible business partners and their businesses and any other information not generally known to the public.\n“Disclosing Party” shall mean NYMEX.\n“Person” means a natural person, partnership (whether general or limited), limited liability company, trust, estate, association, corporation,\ncustodian, nominee or any other individual or entity in its own or any representative capacity.\n“Receiving Party” shall mean Advisor.\n“Representatives” means, with respect to either Party, such Party’s directors, officers, members, employees, agents or advisors (including,\nwithout limitation, attorneys, accountants and management consultants).\n2. All Confidential Information heretofore or hereinafter furnished to Receiving Party or to any of Receiving Party’s Representatives by\nDisclosing Party or by any of the Disclosing Party’s Representatives, shall be kept confidential by the Receiving Party. The Receiving Party warrants\nthat it will keep the Disclosing Party’s Confidential Information in no less confidential a manner than it keeps its own most confidential information\nbut in no event shall less than reasonable care be exercised to prevent unauthorized disclosure.\n3. Confidential Information disclosed hereunder shall at all times remain, as between the Parties, the property of the Disclosing Party. No license\nunder any trade secrets, copyrights, or other rights is granted by this Agreement or any disclosure of Confidential Information hereunder.\n9\n4. The Receiving Party shall receive, use and consider the Confidential Information solely and exclusively for the purpose of discussions\nregarding the Arrangement. Except to the extent the Receiving Party has prior written consent from the Disclosing Party, the Receiving Party shall\nnot duplicate in any manner or disclose to any third party the Confidential Information or any part thereof other than to its Representatives having a\nneed to know the Confidential Information in order to assist in the evaluation of the Arrangement or any other current or future business relationship\nbetween the Receiving Party and the Disclosing Party. In any instance in which the Receiving Party discloses the Confidential Information to its\nRepresentatives, the Receiving Party shall inform them of the confidential nature of the Confidential Information and of the terms of this\nConfidentiality Agreement. The Receiving Party shall be held responsible for any unauthorized use or disclosure of any Confidential Information,\nregardless of the nature thereof or the identity of the unauthorized user or disclosure thereof.\n5. The Receiving Party understands and agrees that disclosure of the Confidential Information may cause irreparable harm to the Disclosing\nParty, not compensable by money damages and therefore the Disclosing Party shall not have an adequate remedy at law in the event of an\nunauthorized use or disclosure of the Confidential Information in breach of the provisions of this Agreement. Accordingly, the Disclosing Party shall\nbe entitled to injunctive relief, in addition to any other rights and remedies which might be available to it under the law. The prevailing Party in any\nlitigation relating to or arising under this Agreement shall be entitled to reasonable attorneys’ fees, including fees on appeal.\n6. Upon the written request of the Disclosing Party, the Receiving Party will promptly return to the Disclosing Party or destroy all of the\nConfidential Information of the Disclosing Party (or such portion thereof as may be requested by the Disclosing Party) without retaining copies,\nsummaries or extracts thereof or based thereon.\n7. The Receiving Party further understands and acknowledges that the furnishing of the Confidential Information by the Disclosing Party does\nnot in and of itself constitute a representation of any kind by the Disclosing Party as to the accuracy or completeness of such information.\n8. The Receiving Party may disclose the Disclosing Party’s Confidential Information to a third person only if: (a) the Confidential Information\nis made public by the Disclosing Party; (b) the Confidential Information becomes generally known to the public, or was generally known to the\npublic, before the date on which this Agreement is executed; (c) the Disclosing Party waives its rights as provided in Article 14 below; (d) the\nReceiving Party obtains the Confidential Information independent of the Disclosing Party lawfully and without breach of this Agreement or\n(e) disclosure of the Confidential Information is required by a governmental authority, either by explicit order, statute or regulation; in which case the\nReceiving Party shall comply with its obligations under Section 9 below.\n9. If the Receiving Party is required by law, regulation, legal process or regulatory authority to disclose the Disclosing Party’s Confidential\nInformation, the Receiving Party (if legally permitted to do so) shall provide the Disclosing Party with prompt notice (in writing if practicable) of\nany such requirement so that the Disclosing Party may seek a protective order or other remedy and/or waive compliance with the provisions of this\nAgreement. In the event that such protective order or other remedy is not obtained, or that the Disclosing Party grants a waiver hereunder, the\nReceiving Party may furnish that portion (and only that portion) of the Confidential Information which, in the opinion of its counsel, it is required by\nlaw, regulation, legal process or regulatory authority to disclose, without any liability to the Disclosing Party and with respect to which it agrees to\nexercise its best efforts to obtain reliable assurance that confidential treatment will be accorded. In any event, the Receiving Party will not oppose\naction by the Disclosing Party to obtain a protective order unless the Receiving Party reasonably determines that such order is adverse to its interests\nor other reliable assurance that confidential treatment will be accorded the Confidential Information.\n10. The Parties acknowledge and agree that the Disclosing Party may provide other persons with its own Confidential Information and nothing\ncontained herein shall act so as to prevent such Party from doing so.\n11. Receiving Party hereby agrees to indemnify and hold harmless the Disclosing Party and its Representatives from any damage, loss, cost or\nliability (including reasonable attorneys fees and legal fees, and\n10\nthe cost of enforcing this indemnification provision) arising out of or resulting from any breach by it of this Agreement.\n12. Each of the Parties agree that except for the matters specifically agreed to in this Agreement and as otherwise agreed in writing by the\nParties, none of the Parties or their respective Representatives will be under any legal obligation of any kind whatsoever with respect to providing\nany services and/or any discussion with regard to providing such services.\n13. Each Party acknowledges and agrees that it may allow other Persons to provide it any of the services to be provided (or proposed to be\nprovided) by the other Party. In addition, each Party may make available to any other Persons its own Confidential Information and nothing\ncontained herein shall act so as to prevent a Party from so doing.\n14. This Agreement may be modified or waived only by an express amendment and waiver in writing signed by the Parties. It is understood and\nagreed that no failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any\nsingle or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n15. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of\nthis Agreement, which shall remain in full force and effect.\n16. This Agreement will be governed by both the substantive and procedural laws of the State of New York, U.S.A., excluding its conflict of\nlaw rules and the UN Convention for the International Sale of Goods (CISG). Any action to enforce any provision of this Agreement may be brought\nonly in the Supreme Court, State of New York, County of New York or in the United States District Court for the Southern District of New York.\n17. NYMEX and Advisor shall be bound by the terms of this Agreement until a written release is given by NYMEX following the return or\ndestruction of all of the Confidential Information.\n18. Neither Party may use the name of the other in connection with any advertising or publicity materials or activities without the prior written\nconsent of the other Party.\n19. This Agreement shall become effective as of the date Confidential Information is first made available to any of the Parties to this\nAgreement.\n20. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and\nthe same agreement.\n11\nIN WITNESS WHEREOF, the Parties hereto have duly executed and delivered this Agreement as of Effective Date.\n/s/ VINCENT VIOLA\nVincent Viola\nNYMEX HOLDINGS, INC.\nBy: /s/ MITCHELL STEINHAUSE\nName: Mitchell Steinhause\nTitle: Chairman\n12	EXHIBIT B\nNON-DISCLOSURE AGREEMENT\nWHEREAS, this Non-Disclosure Agreement (“Agreement”) is entered into as of March 17, 2004 (“Effective Date”) between the NYMEX\nHoldings, Inc. (“NYMEX?” or “Disclosing Party”) and Vincent Viola (“Advisor” or “Receiving Party”) (each of NYMEX and Advisor is hereinafter\nreferred to individually as a “Party” or collectively as the “Parties”) in connection with a business venture (“Arrangement”); and\nWHEREAS, NYMEX possess its own proprietary, financial, business, and marketing information relating to the Arrangement; and\nWHEREAS, in order to begin the discussions regarding the Arrangement NYMEX is willing to disclose to Advisor certain information and\nrelated materials that NYMEX considers to be confidential and secret and in which NYMEX has a proprietary interest, subject to the terms and\nconditions set forth below.\nNOW, THEREFORE, in consideration of the disclosure of any Confidential Information (as defined below) the covenants and premises\ncontained herein and other good and valuable consideration the sufficiency of which is hereby acknowledged, and intending to be legally bound\nhereby, the Parties hereto agree as follows:\n1. The following definitions shall apply for purposes of this Agreement:\n“Affiliate” means, when used with respect to any Person (as defined below), any other Person directly or indirectly controlling, controlled\nby or under common control with, such Person.\n“Agreement” means this Agreement, as amended from time to time.\n“Arrangement” means any business venture(s) discussed between the Parties.\n“Confidential Information” shall mean any and all of NYMEX’s confidential, secret or proprietary information, whether written or oral,\nincluding but not limited to, products or services, personnel, procedures of operation, business or marketing plans, business methods and\npractices, compilations of data or information concerning NYMEX’s business, financial data, business proposals, names of NYMEX'’s suppliers\nand customers, possible business partners and their businesses and any other information not generally known to the public.\n“Disclosing Party” shall mean NYMEX.\n“Person” means a natural person, partnership (whether general or limited), limited liability company, trust, estate, association, corporation,\ncustodian, nominee or any other individual or entity in its own or any representative capacity.\n“Receiving Party” shall mean Advisor.\n“Representatives” means, with respect to either Party, such Party’s directors, officers, members, employees, agents or advisors (including,\nwithout limitation, attorneys, accountants and management consultants).\n2. All Confidential Information heretofore or hereinafter furnished to Receiving Party or to any of Receiving Party’s Representatives by\nDisclosing Party or by any of the Disclosing Party’s Representatives, shall be kept confidential by the Receiving Party. The Receiving Party warrants\nthat it will keep the Disclosing Party’s Confidential Information in no less confidential a manner than it keeps its own most confidential information\nbut in no event shall less than reasonable care be exercised to prevent unauthorized disclosure.\n3. Confidential Information disclosed hereunder shall at all times remain, as between the Parties, the property of the Disclosing Party. No license\nunder any trade secrets, copyrights, or other rights is granted by this Agreement or any disclosure of Confidential Information hereunder.\n9\n4. The Receiving Party shall receive, use and consider the Confidential Information solely and exclusively for the purpose of discussions\nregarding the Arrangement. Except to the extent the Receiving Party has prior written consent from the Disclosing Party, the Receiving Party shall\nnot duplicate in any manner or disclose to any third party the Confidential Information or any part thereof other than to its Representatives having a\nneed to know the Confidential Information in order to assist in the evaluation of the Arrangement or any other current or future business relationship\nbetween the Receiving Party and the Disclosing Party. In any instance in which the Receiving Party discloses the Confidential Information to its\nRepresentatives, the Receiving Party shall inform them of the confidential nature of the Confidential Information and of the terms of this\nConfidentiality Agreement. The Receiving Party shall be held responsible for any unauthorized use or disclosure of any Confidential Information,\nregardless of the nature thereof or the identity of the unauthorized user or disclosure thereof.\n5. The Receiving Party understands and agrees that disclosure of the Confidential Information may cause irreparable harm to the Disclosing\nParty, not compensable by money damages and therefore the Disclosing Party shall not have an adequate remedy at law in the event of an\nunauthorized use or disclosure of the Confidential Information in breach of the provisions of this Agreement. Accordingly, the Disclosing Party shall\nbe entitled to injunctive relief, in addition to any other rights and remedies which might be available to it under the law. The prevailing Party in any\nlitigation relating to or arising under this Agreement shall be entitled to reasonable attorneys’ fees, including fees on appeal.\n6. Upon the written request of the Disclosing Party, the Receiving Party will promptly return to the Disclosing Party or destroy all of the\nConfidential Information of the Disclosing Party (or such portion thereof as may be requested by the Disclosing Party) without retaining copies,\nsummaries or extracts thereof or based thereon.\n7. The Receiving Party further understands and acknowledges that the furnishing of the Confidential Information by the Disclosing Party does\nnot in and of itself constitute a representation of any kind by the Disclosing Party as to the accuracy or completeness of such information.\n8. The Receiving Party may disclose the Disclosing Party’s Confidential Information to a third person only if: (a) the Confidential Information\nis made public by the Disclosing Party; (b) the Confidential Information becomes generally known to the public, or was generally known to the\npublic, before the date on which this Agreement is executed; (c) the Disclosing Party waives its rights as provided in Article 14 below; (d) the\nReceiving Party obtains the Confidential Information independent of the Disclosing Party lawfully and without breach of this Agreement or\n(e) disclosure of the Confidential Information is required by a governmental authority, either by explicit order, statute or regulation; in which case the\nReceiving Party shall comply with its obligations under Section 9 below.\n9. If the Receiving Party is required by law, regulation, legal process or regulatory authority to disclose the Disclosing Party’s Confidential\nInformation, the Receiving Party (if legally permitted to do so) shall provide the Disclosing Party with prompt notice (in writing if practicable) of\nany such requirement so that the Disclosing Party may seek a protective order or other remedy and/or waive compliance with the provisions of this\nAgreement. In the event that such protective order or other remedy is not obtained, or that the Disclosing Party grants a waiver hereunder, the\nReceiving Party may furnish that portion (and only that portion) of the Confidential Information which, in the opinion of its counsel, it is required by\nlaw, regulation, legal process or regulatory authority to disclose, without any liability to the Disclosing Party and with respect to which it agrees to\nexercise its best efforts to obtain reliable assurance that confidential treatment will be accorded. In any event, the Receiving Party will not oppose\naction by the Disclosing Party to obtain a protective order unless the Receiving Party reasonably determines that such order is adverse to its interests\nor other reliable assurance that confidential treatment will be accorded the Confidential Information.\n10. The Parties acknowledge and agree that the Disclosing Party may provide other persons with its own Confidential Information and nothing\ncontained herein shall act so as to prevent such Party from doing so.\n11. Receiving Party hereby agrees to indemnify and hold harmless the Disclosing Party and its Representatives from any damage, loss, cost or\nliability (including reasonable attorneys fees and legal fees, and\n10\nthe cost of enforcing this indemnification provision) arising out of or resulting from any breach by it of this Agreement.\n12. Each of the Parties agree that except for the matters specifically agreed to in this Agreement and as otherwise agreed in writing by the\nParties, none of the Parties or their respective Representatives will be under any legal obligation of any kind whatsoever with respect to providing\nany services and/or any discussion with regard to providing such services.\n13. Each Party acknowledges and agrees that it may allow other Persons to provide it any of the services to be provided (or proposed to be\nprovided) by the other Party. In addition, each Party may make available to any other Persons its own Confidential Information and nothing\ncontained herein shall act so as to prevent a Party from so doing.\n14. This Agreement may be modified or waived only by an express amendment and waiver in writing signed by the Parties. It is understood and\nagreed that no failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any\nsingle or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n15. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of\nthis Agreement, which shall remain in full force and effect.\n16. This Agreement will be governed by both the substantive and procedural laws of the State of New York, U.S.A., excluding its conflict of\nlaw rules and the UN Convention for the International Sale of Goods (CISG). Any action to enforce any provision of this Agreement may be brought\nonly in the Supreme Court, State of New York, County of New York or in the United States District Court for the Southern District of New York.\n17. NYMEX and Advisor shall be bound by the terms of this Agreement until a written release is given by NYMEX following the return or\ndestruction of all of the Confidential Information.\n18. Neither Party may use the name of the other in connection with any advertising or publicity materials or activities without the prior written\nconsent of the other Party.\n19. This Agreement shall become effective as of the date Confidential Information is first made available to any of the Parties to this\nAgreement.\n20. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and\nthe same agreement.\n11\nIN WITNESS WHEREOF, the Parties hereto have duly executed and delivered this Agreement as of Effective Date.\n/s/ VINCENT VIOLA\nVincent Viola\nNYMEX HOLDINGS, INC.\nBy: /s/ MITCHELL STEINHAUSE\nName: Mitchell Steinhause\nTitle: Chairman\n12	EXHIBIT B\nNON-DISCLOSURE AGREEMENT\nWHEREAS, this Non-Disclosure Agreement ("Agreement") is entered into as of March 17, 2004 ("Effective Date") between the NYMEX\nHoldings, Inc. ("NYMEX" or "Disclosing Party") and Vincent Viola ("Advisor" or "Receiving Party") (each of NYMEX and Advisor is hereinafter\nreferred to individually as a "Party" or collectively as the "Parties") in connection with a business venture ("Arrangement"); and\nWHEREAS, NYMEX possess its own proprietary, financial, business, and marketing information relating to the Arrangement; and\nWHEREAS, in order to begin the discussions regarding the Arrangement NYMEX is willing to disclose to Advisor certain information and\nrelated materials that NYMEX considers to be confidential and secret and in which NYMEX has a proprietary interest, subject to the terms and\nconditions set forth below.\nNOW, THEREFORE, in consideration of the disclosure of any Confidential Information (as defined below) the covenants and premises\ncontained herein and other good and valuable consideration the sufficiency of which is hereby acknowledged, and intending to be legally bound\nhereby, the Parties hereto agree as follows:\n1. The following definitions shall apply for purposes of this Agreement:\n"Affiliate" means, when used with respect to any Person (as defined below), any other Person directly or indirectly controlling, controlled\nby or under common control with, such Person.\n"Agreement' means this Agreement, as amended from time to time.\n"Arrangement" means any business venture(s) discussed between the Parties.\n"Confidential Information' shall mean any and all of NYMEX's confidential, secret or proprietary information, whether written or oral,\nincluding but not limited to, products or services, personnel, procedures of operation, business or marketing plans, business methods and\npractices, compilations of data or information concerning NYMEX's business, financial data, business proposals, names of NYMEX's suppliers\nand customers, possible business partners and their businesses and any other information not generally known to the public.\n"Disclosing Party" shall mean NYMEX.\n"Person" means a natural person, partnership (whether general or limited), limited liability company, trust, estate, association, corporation,\ncustodian, nominee or any other individual or entity in its own or any representative capacity.\n"Receiving Party" shall mean Advisor.\n"Representatives' means, with respect to either Party, such Party's directors, officers, members, employees, agents or advisors (including,\nwithout limitation, attorneys, accountants and management consultants).\n2. All Confidential Information heretofore or hereinafter furnished to Receiving Party or to any of Receiving Party's Representatives by\nDisclosing Party or by any of the Disclosing Party's Representatives, shall be kept confidential by the Receiving Party. The Receiving Party warrants\nthat it will keep the Disclosing Party's Confidential Information in no less confidential a manner than it keeps its own most confidential information\nbut in no event shall less than reasonable care be exercised to prevent unauthorized disclosure.\n3. Confidential Information disclosed hereunder shall at all times remain, as between the Parties, the property of the Disclosing Party. No license\nunder any trade secrets, copyrights, or other rights is granted by this Agreement or any disclosure of Confidential Information hereunder.\n9\n4. The Receiving Party shall receive, use and consider the Confidential Information solely and exclusively for the purpose of discussions\nregarding the Arrangement. Except to the extent the Receiving Party has prior written consent from the Disclosing Party, the Receiving Party shall\nnot duplicate in any manner or disclose to any third party the Confidential Information or any part thereof other than to its Representatives having a\nneed to know the Confidential Information in order to assist in the evaluation of the Arrangement or any other current or future business relationship\nbetween the Receiving Party and the Disclosing Party. In any instance in which the Receiving Party discloses the Confidential Information to\nits\nRepresentatives, the Receiving Party shall inform them of the confidential nature of the Confidential Information and of the terms of this\nConfidentiality Agreement. The Receiving Party shall be held responsible for any unauthorized use or disclosure of any Confidential Information,\nregardless of the nature thereof or the identity of the unauthorized user or disclosure thereof.\n5. The Receiving Party understands and agrees that disclosure of the Confidentia Information may cause irreparable harm to the Disclosing\nParty, not compensable by money damages and therefore the Disclosing Party shall not have an adequate remedy at law in the event of an\nunauthorized use or disclosure of the Confidential Information in breach of the provisions of this Agreement. Accordingly, the Disclosing Party shall\nbe entitled to injunctive relief, in addition to any other rights and remedies which might be available to it under the law. The prevailing Party in any\nlitigation relating to or arising under this Agreement shall be entitled to reasonable attorneys' fees, including fees on appeal.\n6. Upon the written request of the Disclosing Party, the Receiving Party will promptly return to the Disclosing Party or destroy all of the\nConfidential Information of the Disclosing Party (or such portion thereof as may be requested by the Disclosing Party) without retaining copies,\nsummaries or extracts thereof or based thereon.\n7. The Receiving Party further understands and acknowledges that the furnishing of the Confidential Information by the Disclosing Party does\nnot in and of itself constitute a representation of any kind by the Disclosing Party as to the accuracy or completeness of such information.\n8. The Receiving Party may disclose the Disclosing Party's Confidential Information to a third person only if: (a) the Confidential Information\nis made public by the Disclosing Party; (b) the Confidentia Information becomes generally known to the public, or was generally known to the\npublic, before the date on which this Agreement is executed; (c) the Disclosing Party waives its rights as provided in Article 14 below; (d) the\nReceiving Party obtains the Confidential Information independent of the Disclosing Party lawfully and without breach of this Agreement or\n(e) disclosure of the Confidential Information is required by a governmental authority, either by explicit order, statute or regulation; in which case\nthe\nReceiving Party shall comply with its obligations under Section 9 below.\n9. If the Receiving Party is required by law, regulation, legal process or regulatory authority to disclose the Disclosing Party's Confidential\nInformation, the Receiving Party (if legally permitted to do so) shall provide the Disclosing Party with prompt notice (in writing if practicable) of\nany such requirement so that the Disclosing Party may seek a protective order or other remedy and/or waive compliance with the provisions of this\nAgreement. In the event that such protective order or other remedy is not obtained, or that the Disclosing Party grants a waiver hereunder, the\nReceiving Party may furnish that portion (and only that portion) of the Confidentia Information which, in the opinion of its counsel, it is required\nby\nlaw, regulation, legal process or regulatory authority to disclose, without any liability to the Disclosing Party and with respect to which it agrees to\nexercise its best efforts to obtain reliable assurance that confidential treatment will be accorded. In any event, the Receiving Party will not oppose\naction by the Disclosing Party to obtain a protective order unless the Receiving Party reasonably determines that such order is adverse to its interests\nor other reliable assurance that confidential treatment will be accorded the Confidential Information.\n10. The Parties acknowledge and agree that the Disclosing Party may provide other persons with its own Confidentia Information and nothing\ncontained herein shall act so as to prevent such Party from doing so.\n11. Receiving Party hereby agrees to indemnify and hold harmless the Disclosing Party and its Representatives from any damage, loss, cost or\nliability (including reasonable attorneys fees and legal fees, and\n10\nthe cost of enforcing this indemnification provision) arising out of or resulting from any breach by it of this Agreement.\n12. Each of the Parties agree that except for the matters specifically agreed to in this Agreement and as otherwise agreed in writing by the\nParties, none of the Parties or their respective Representatives will be under any legal obligation of any kind whatsoever with respect to providing\nany services and/or any discussion with regard to providing such services.\n13. Each Party acknowledges and agrees that it may allow other Persons to provide it any of the services to be provided (or proposed to be\nprovided) by the other Party. In addition, each Party may make available to any other Persons its own Confidential Information and nothing\ncontained herein shall act so as to prevent a Party from so doing.\n14. This Agreement may be modified or waived only by an express amendment and waiver in writing signed by the Parties. It is understood and\nagreed that no failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any\nsingle or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n15. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of\nthis Agreement, which shall remain in full force and effect.\n16. This Agreement will be governed by both the substantive and procedural laws of the State of New York, U.S.A., excluding its conflict of\nlaw rules and the UN Convention for the International Sale of Goods (CISG). Any action to enforce any provision of this Agreement may be brought\nonly in the Supreme Court, State of New York, County of New York or in the United States District Court for the Southern District of New York.\n17. NYMEX and Advisor shall be bound by the terms of this Agreement until a written release is given by NYMEX following the return or\ndestruction of all of the Confidential Information.\n18. Neither Party may use the name of the other in connection with any advertising or publicity materials or activities without the prior written\nconsent of the other Party.\n19. This Agreement shall become effective as of the date Confidential Information is first made available to any of the Parties to this\nAgreement.\n20. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and\nthe same agreement.\n11\nIN WITNESS WHEREOF, the Parties hereto have duly executed and delivered this Agreement as of Effective Date.\n/s/ VINCENT VIOLA\nVincent Viola\nNYMEX HOLDINGS, INC.\nBy: /s/ MITCHELL STEINHAUSE\nName: Mitchell Steinhause\nTitle: Chairman\n12	EXHIBIT B\nNON-DISCLOSURE AGREEMENT\nWHEREAS, this Non-Disclosure Agreement (“Agreement”) is entered into as of March 17, 2004 (“Effective Date”) between the NYMEX\nHoldings, Inc. (“NYMEX” or “Disclosing Party”) and Vincent Viola (“Advisor” or “Receiving Party”) (each of NYMEX and Advisor is hereinafter\nreferred to individually as a “Party” or collectively as the “Parties”) in connection with a business venture (“Arrangement”); and\nWHEREAS, NYMEX possess its own proprietary, financial, business, and marketing information relating to the Arrangement; and\nWHEREAS, in order to begin the discussions regarding the Arrangement NYMEX is willing to disclose to Advisor certain information and\nrelated materials that NYMEX considers to be confidential and secret and in which NYMEX has a proprietary interest, subject to the terms and\nconditions set forth below.\nNOW, THEREFORE, in consideration of the disclosure of any Confidential Information (as defined below) the covenants and premises\ncontained herein and other good and valuable consideration the sufficiency of which is hereby acknowledged, and intending to be legally bound\nhereby, the Parties hereto agree as follows:\n1. The following definitions shall apply for purposes of this Agreement:\n“Affiliate” means, when used with respect to any Person (as defined below), any other Person directly or indirectly controlling, controlled\nby or under common control with, such Person.\n“Agreement” means this Agreement, as amended from time to time.\n“Arrangement” means any business venture(s) discussed between the Parties.\n“Confidential Information” shall mean any and all of NYMEX’s confidential, secret or proprietary information, whether written or oral,\nincluding but not limited to, products or services, personnel, procedures of operation, business or marketing plans, business methods and\npractices, compilations of data or information concerning NYMEX’s business, financial data, business proposals, names of NYMEX’s suppliers\nand customers, possible business partners and their businesses and any other information not generally known to the public.\n“Disclosing Party” shall mean NYMEX.\n“Person” means a natural person, partnership (whether general or limited), limited liability company, trust, estate, association, corporation,\ncustodian, nominee or any other individual or entity in its own or any representative capacity.\n“Receiving Party” shall mean Advisor.\n“Representatives” means, with respect to either Party, such Party’s directors, officers, members, employees, agents or advisors (including,\nwithout limitation, attorneys, accountants and management consultants).\n2. All Confidential Information heretofore or hereinafter furnished to Receiving Party or to any of Receiving Party’s Representatives by\nDisclosing Party or by any of the Disclosing Party’s Representatives, shall be kept confidential by the Receiving Party. The Receiving Party warrants\nthat it will keep the Disclosing Party’s Confidential Information in no less confidential a manner than it keeps its own most confidential information\nbut in no event shall less than reasonable care be exercised to prevent unauthorized disclosure.\n3. Confidential Information disclosed hereunder shall at all times remain, as between the Parties, the property of the Disclosing Party. No license\nunder any trade secrets, copyrights, or other rights is granted by this Agreement or any disclosure of Confidential Information hereunder.\n9\n4. The Receiving Party shall receive, use and consider the Confidential Information solely and exclusively for the purpose of discussions\nregarding the Arrangement. Except to the extent the Receiving Party has prior written consent from the Disclosing Party, the Receiving Party shall\nnot duplicate in any manner or disclose to any third party the Confidential Information or any part thereof other than to its Representatives having a\nneed to know the Confidential Information in order to assist in the evaluation of the Arrangement or any other current or future business relationship\nbetween the Receiving Party and the Disclosing Party. In any instance in which the Receiving Party discloses the Confidential Information to its\nRepresentatives, the Receiving Party shall inform them of the confidential nature of the Confidential Information and of the terms of this\nConfidentiality Agreement. The Receiving Party shall be held responsible for any unauthorized use or disclosure of any Confidential Information,\nregardless of the nature thereof or the identity of the unauthorized user or disclosure thereof.\n5. The Receiving Party understands and agrees that disclosure of the Confidential Information may cause irreparable harm to the Disclosing\nParty, not compensable by money damages and therefore the Disclosing Party shall not have an adequate remedy at law in the event of an\nunauthorized use or disclosure of the Confidential Information in breach of the provisions of this Agreement. Accordingly, the Disclosing Party shall\nbe entitled to injunctive relief, in addition to any other rights and remedies which might be available to it under the law. The prevailing Party in any\nlitigation relating to or arising under this Agreement shall be entitled to reasonable attorneys’ fees, including fees on appeal.\n6. Upon the written request of the Disclosing Party, the Receiving Party will promptly return to the Disclosing Party or destroy all of the\nConfidential Information of the Disclosing Party (or such portion thereof as may be requested by the Disclosing Party) without retaining copies,\nsummaries or extracts thereof or based thereon.\n7. The Receiving Party further understands and acknowledges that the furnishing of the Confidential Information by the Disclosing Party does\nnot in and of itself constitute a representation of any kind by the Disclosing Party as to the accuracy or completeness of such information.\n8. The Receiving Party may disclose the Disclosing Party’s Confidential Information to a third person only if: (a) the Confidential Information\nis made public by the Disclosing Party; (b) the Confidential Information becomes generally known to the public, or was generally known to the\npublic, before the date on which this Agreement is executed; (c) the Disclosing Party waives its rights as provided in Article 14 below; (d) the\nReceiving Party obtains the Confidential Information independent of the Disclosing Party lawfully and without breach of this Agreement or\n(e) disclosure of the Confidential Information is required by a governmental authority, either by explicit order, statute or regulation; in which case the\nReceiving Party shall comply with its obligations under Section 9 below.\n9. If the Receiving Party is required by law, regulation, legal process or regulatory authority to disclose the Disclosing Party’s Confidential\nInformation, the Receiving Party (if legally permitted to do so) shall provide the Disclosing Party with prompt notice (in writing if practicable) of\nany such requirement so that the Disclosing Party may seek a protective order or other remedy and/or waive compliance with the provisions of this\nAgreement. In the event that such protective order or other remedy is not obtained, or that the Disclosing Party grants a waiver hereunder, the\nReceiving Party may furnish that portion (and only that portion) of the Confidential Information which, in the opinion of its counsel, it is required by\nlaw, regulation, legal process or regulatory authority to disclose, without any liability to the Disclosing Party and with respect to which it agrees to\nexercise its best efforts to obtain reliable assurance that confidential treatment will be accorded. In any event, the Receiving Party will not oppose\naction by the Disclosing Party to obtain a protective order unless the Receiving Party reasonably determines that such order is adverse to its interests\nor other reliable assurance that confidential treatment will be accorded the Confidential Information.\n10. The Parties acknowledge and agree that the Disclosing Party may provide other persons with its own Confidential Information and nothing\ncontained herein shall act so as to prevent such Party from doing so.\n11. Receiving Party hereby agrees to indemnify and hold harmless the Disclosing Party and its Representatives from any damage, loss, cost or\nliability (including reasonable attorneys fees and legal fees, and\n10\nthe cost of enforcing this indemnification provision) arising out of or resulting from any breach by it of this Agreement.\n12. Each of the Parties agree that except for the matters specifically agreed to in this Agreement and as otherwise agreed in writing by the\nParties, none of the Parties or their respective Representatives will be under any legal obligation of any kind whatsoever with respect to providing\nany services and/or any discussion with regard to providing such services.\n13. Each Party acknowledges and agrees that it may allow other Persons to provide it any of the services to be provided (or proposed to be\nprovided) by the other Party. In addition, each Party may make available to any other Persons its own Confidential Information and nothing\ncontained herein shall act so as to prevent a Party from so doing.\n14. This Agreement may be modified or waived only by an express amendment and waiver in writing signed by the Parties. It is understood and\nagreed that no failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any\nsingle or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n15. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of\nthis Agreement, which shall remain in full force and effect.\n16. This Agreement will be governed by both the substantive and procedural laws of the State of New York, U.S.A., excluding its conflict of\nlaw rules and the UN Convention for the International Sale of Goods (CISG). Any action to enforce any provision of this Agreement may be brought\nonly in the Supreme Court, State of New York, County of New York or in the United States District Court for the Southern District of New York.\n17. NYMEX and Advisor shall be bound by the terms of this Agreement until a written release is given by NYMEX following the return or\ndestruction of all of the Confidential Information.\n18. Neither Party may use the name of the other in connection with any advertising or publicity materials or activities without the prior written\nconsent of the other Party.\n19. This Agreement shall become effective as of the date Confidential Information is first made available to any of the Parties to this\nAgreement.\n20. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and\nthe same agreement.\n11\nIN WITNESS WHEREOF, the Parties hereto have duly executed and delivered this Agreement as of Effective Date.\n/s/ VINCENT VIOLA\nVincent Viola\nNYMEX HOLDINGS, INC.\nBy: /s/ MITCHELL STEINHAUSE\nName: Mitchell Steinhause\nTitle: Chairman\n12
8cd7e22efa54a11421d1291c5e7fa8f7.pdf	jurisdiction party	EXHIBIT B\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis Confidentiality and Non-Disclosure Agreement (the “Agreement”) is made by and between Creative Insurance Managers, Inc. ( “Agent”) and Sub-Contracting Concepts, Inc. ( “Customer”) and shall remain in force for the Term of\nthis Agreement.\n1.\nIn connection with the consideration of a possible engagement between the Customer and Agent, the Customer or its Representatives (as such term is defined herein) and Agent will furnish to each other, Confidential Information\n(as such term is defined herein) related to the business and operations of the Customer and Agent, respectively. As used herein, the term “Representatives” shall mean, the Customer’s directors, officers, employees, agents,\nconsultants, advisors, or other representatives including legal counsel, accountants and financial advisors.\n2.\nThe Customer and Agent acknowledge the confidential and proprietary nature of the Confidential Information, agree to hold and keep the same as provided in this Agreement, and otherwise agree to each and every restriction and\nobligation in this Agreement.\n3.\nAs used in this Agreement, the term “Confidential Information” means and includes any and all:\na.\nTrade secrets concerning the business and affairs of either party, product specifications, data, know-how, formulae, compositions, processes, designs, sketches, photographs, graphs, drawings, samples, inventions\nand ideas, past current, and planned research and development, current and planned manufacturing or distribution methods and processes, current and anticipated customer requirements, price lists, market\nstudies, business plans, computer software and programs, structures and architectures (and related processes, formulae, composition, improvements, devices, know-how, inventions, discoveries, concepts, ideas,\ndesigns, methods and information), and any other information, however documented, that is a trade secret within the meaning of Georgia law;\nb.\nnon-public personal information concerning the Customer’s or Agent’s customers, which information shall include, without limitation, non-public personal financial information and non-public health\ninformation concerning such Customer customers; and\nc.\ninformation concerning the business and affairs of each party (which includes historical financial statements, financial projections and budgets, historical and projected sales, capital spending budgets and plans,\nthe names and backgrounds of key personnel, personnel training techniques and materials, however documented, that has been or may hereafter be provided or shown to the receiving party or its Representatives\nor is otherwise obtained from review of documents or property or discussion with the disclosing party or its Representatives by the receiving party or its Representatives (including current or prospective\nfinancing sources) irrespective of the form of the communication, and also includes all notes, analyses, compilations, studies, summaries, and other material prepared by the receiving party or its Representatives\ncontaining or based, in whole or in part, on any information included in the foregoing. In the case of trade secrets, both parties hereby waive any requirement that the party disclosing the trade secret submit proof\nof the economic value of any trade secret or post a bond or other security\n4.\nThe Confidential Information is being furnished without liability on the part of either party or any of their respective Representatives. This Agreement creates no obligation on the part of either party to furnish any information to\nthe other party. However, the actual dissemination of Confidential Information pursuant to the terms of this Agreement shall serve as consideration for the covenants made hereunder.\n9\n5.\nEach party agrees on its own behalf, and agrees to cause its Representatives:\na.\nto maintain the confidentiality of the Confidential Information:\nb.\nnot to use or allow the use of any portion of such Confidential Information for any purpose (other than evaluating a possible engagement between the parties, brokering the procurement of any Product for the\nCustomer or the customer’s client or performing any of the Services provided for by the Schedule(s).\nc.\nnot to disclose or allow disclosure to others of any portion of the Confidential Information provided to it, except to those of its Representatives who need to know such Confidential Information for the purpose of\nevaluating a possible engagement between the parties and who are made aware of, and who agree to be bound by, the terms of this Agreement (collectively, the “Permitted Representatives”) and then only for the\npurpose described in clause (b) above;\nd.\nnot to disclose or allow disclosure to persons other than the Permitted Representatives that Confidential Information (the term “person” to be broadly interpreted to include, without limitation, any individual,\ncorporation, estate, group, limited liability company, partnership, trust or other entity);\ne.\nnot to make or allow to be made copies of or otherwise reproduce the Confidential Information provided to it, except as reasonably required in connection with evaluating a possible engagement between the\nparties, brokering the procurement of any Product, or performing any of the Services provided for by the Schedule(s) or as permitted with the specific prior written consent of the disclosing party; and\nf.\nwithin ten (10) business days of a request by the disclosing party, to destroy all of the Confidential Information provided to the receiving party in written form, including all copies thereof and any works derived\nthere from or containing Confidential Information and to certify to such destruction, such certification, at the request of the disclosing party, specifically listing all such Confidential Information destroyed.\n6.\nAll of the foregoing obligations and restrictions do not apply to that part of the Confidential Information that the receiving party demonstrates (a) was or becomes generally available to the public other than as a result of a\ndisclosure by the receiving party or the receiving party’s Representatives or (b) was available, or becomes available, to the receiving party on a non-confidential basis prior to its disclosure to the receiving party by the disclosing\nparty or a disclosing party Representative, but only if (i) the source of such information is not bound by the Confidentiality Agreement with disclosing party or is not otherwise prohibited from transmitting the information to the\nreceiving party or the receiving party’s Representatives by a contractual, legal, fiduciary, or other obligation and (ii) the receiving party provides disclosing party with written notice of such prior possession either (A) prior to the\nexecution and delivery of this Agreement or (B) if the receiving party later becomes aware of (through disclosure to the receiving party or otherwise through the receiving party’s work on the engagement) any aspect of the\nConfidential Information of which the receiving party had prior possession, promptly upon the receiving party becoming aware of such aspect.\n10\n7.\nIn the event that the parties or their respective Representatives, is, in the opinion of legal counsel, required by legal process, law or regulation to disclose any portion of the Confidential Information provided to it, such party shall\nprovide the other party with prompt written notice of such requirement as far in advance of the proposed disclosure as possible so that the other party (at its expense) may either seek a protective order or other appropriate remedy\nwhich is necessary to protect its interests or waive compliance with the non-disclosure provisions of this Agreement to the extent necessary (provided that one or the other be done). Each of the parties and their respective\nRepresentatives shall cooperate in all reasonable respects with each other in seeking to prevent or limit disclosure and, in the event a protective order or other remedy is not obtained, the party being required to make disclosures\nwill limit the disclosure to the information actually required to be disclosed, provided that such party shall not be required to incur any out-of-pocket costs in complying with this paragraph.\n8.\nEach of the parties shall indemnify and hold the other party and its Representatives harmless from any damages, loss, cost, or liability (including reasonable legal fees and the cost of enforcing this indemnity) arising out of or\nresulting from any unauthorized use or disclosure by the receiving party or its Representatives of the Confidential Information or other violation of this Agreement. In addition, because an award of money damages (whether\npursuant to the foregoing sentence or otherwise) would be inadequate for any breach of this Agreement by the receiving party or its Representatives and any such breach would cause the disclosing party irreparable harm, the\nreceiving party also agrees that, in the event of any breach or threatened breach of this Agreement, the disclosing party will also be entitled, without the requirement of posting a bond or other security, to equitable, relief, including\ninjunctive relief and specific performance. Such remedies will not be the exclusive remedies for any breach of this Agreement but will be in addition to all other remedies available at law or in equity to the disclosing party.\n9.\nThe invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect. If any of the covenants or\nprovision of this Agreement are determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the parties contemplate that the court making such determination shall reduce such extent, duration, scope\nor other provision and enforce them in their reduced form for all purposes contemplated by this Agreement.\n10.\nThis Confidentiality Letter Agreement shall be governed by the laws of the State of Georgia without regard to conflicts of laws or principles.\nIN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date first written above.\nAGENT:\nCREATIVE INSURANCE MANAGERS, INC.\n/s/ Phillip A. Williams\nPhillip A. Williams, President\nCUSTOMER:\nSUB-CONTRACTING CONCEPTS, INC .\n/s/ Steven Rothman\nSteven Rothman, CEO, Coach Industries Group, Inc.\n11	EXHIBIT B\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis Confidentiality and Non-Disclosure Agreement (the "Agreement") is made by and between Creative Insurance Managers, Inc. (”A gent”) and Sub-Contracting Concepts, Inc. ("Customer”) and shall remain in force for the Term of\nthis A greement.\n1. In connection with the consideration of a possible engagement between the Customer and Agent, the Customer or its Represenmtives (as such term is defined herein) and Agent will furnish to each other, Confidential Information\n(as such term is defined herein) related to the business and operations of the Customer and Agent, respectively. As used herein, the term ”Represenmtives" shall mean, the Customer“ 5 directors, officers, employees, agents,\nconsultants, advisors, or other representatives including legal counsel, accountants and financial advisors.\n2. The Customer and Agent acknowledge the confidential and proprietary nature of the Confidential Information, agree to hold and keep the same as provided in this Agreement, and otherwise agree to each and every restriction and\nobligation in this Agreement.\n3. As used in this Agreement, the term "Confidential Information" means and includes any and all:\na. Trade secrets concerning the business and affairs of either party, product specifications, dam, know-how, formulae, compositions, processes, designs, sketches, photographs, graphs, drawings, samples, inventions\nand ideas, past current, and planned research and development, current and planned manufacturing or distribution methods and processes, current and anticipated customer requirements, price lists, market\nstudies, business plans, computer software and programs, structures and architectures (and related processes, formulae, composition, improvements, devices, know-how, inventions, discoveries, concepts, ideas,\ndesigns, methods and information), and any other information, however documented, that is a trade secret within the meaning of Georgia law;\nb. non-public personal information concerning the Customer“ 5 orAgent's customers, which information shall include, without limitation, non-public personal financial information and non-public health\ninformation concerning such Customer customers; and\nc. information concerning the business and affairs of each party (which includes historical financial statements, financial projections and budgets, historical and projected sales, capital spending budgets and plans,\nthe names and backgrounds of key personnel, personnel training techniques and materials, however documented, that has been or may hereafter be provided or shown to the receiving party or its Representatives\nor is otherwise obtained from review of documents or property or discussion with the disclosing party or its Representatives by the receiving party or its Representatives (including current or prospective\nfinancing sources) irrespective of the form of the communication, and also includes all notes, analyses, compilations, studies, summaries, and other material prepared by the receiving party or its Representatives\ncontaining or based, in whole or in part, on any information included in the foregoing. In the case of trade secrets, both parties hereby waive any requirement that the party disclosing the trade secret submit proof\nof the economic value of any trade secret or post a bond or other security\n4. The Confidential Information is being furnished without liability on the part of either party or any of their respective Representatives. This Agreement creates no obligation on the part of either party to furnish any information to\nthe other party. However, the actual dissemination of Confidential Information pursuant to the terms of this Agreement shall serve as consideration for the covenants made hereunder.\n5‘ Each party agrees on its own behalf, and agrees to cause its Represenmtives:\na. to maintain the confidentiality of the Confidential Information:\nb, not to use or allow the use of any portion of such Confidential Information for any purpose (other than evaluating a possible engagement between the parties, brokering the procurement of any Product for the\nCustomer or the customer“ s client or performing any of the Services provided for by the Schedule(s).\nc. not to disclose or allow disclosure to others of any portion of the Confidential Information provided to it, except to those of its Representatives who need to know such Confidential Information for the purpose of\nevaluating a possible engagement between the parties and who are made aware of, and who agree to be bound by, the terms of this Agreement (collectively, the "Permitted Represenmtives”) and then only for the\npurpose described in clause (b) above;\nd, not to disclose or allow disclosure to persons other than the Permitted Represenmtives that Confidential Information (the term “person" to be broadly interpreted to include, without limitation, any individual,\ncorporation, estate, group, limited liability company, partnership, trust or other entity);\ne. not to make or allow to be made copies of or otherwise reproduce the Confidential Information provided to it, except as reasonably required in connection with evaluating a possible engagement between the\nparties, brokering the procurement of any Product, or performing any of the Services provided for by the Schedule(s) or as permitted with the specific prior written consent of the disclosing party; and\nfl within ten (10) business days of a request by the disclosing party, to destroy all of the Confidential Information provided to the receiving party in written form, including all copies thereof and any works derived\nthere from or containing Confidential Information and to certify to such destruction, such certification, at the request of the disclosing party, specifically listing all such Confidential Information destioyedl\n6‘ All of the foregoing obligations and restiictions do not apply to that part of the Confidential Information that the receiving party demonstrates (a) was or becomes generally available to the public other than as a result of a\ndisclosure by the receiving party or the receiving party’s Represenmtives or (b) was available, or becomes available, to the receiving party on a non-confidential basis prior to its disclosure to the receiving party by the disclosing\nparty or a disclosing party Representative, but only if (i) the source of such information is not bound by the Confidentiality Agreement with disclosing party or is not otherwise prohibited from transmitting the information to the\nreceiving party or the receiving party’s Representatives by a contractual, legal, fiduciary, or other obligation and (ii) the receiving party provides disclosing party with written notice of such prior possession either (A) priorto the\nexecution and delivery of this Agreement or (B) if the receiving party later becomes aware of (through disclosure to the receiving party or otherwise through the receiving party’s work on the engagement) any aspect of the\nConfidential Information of which the receiving party had prior possession, promptly upon the receiving party becoming aware of such aspect\n10\n—\n7. In the event that the parties or their respective Representatives, is, in the opinion of legal counsel, required by legal process, law or regulation to disclose any portion of the Confidential Information provided to it, such party shall\nprovide the other party with prompt written notice of such requirement as far in advance of the proposed disclosure as possible so that the other party (at its expense) may either seek a protective order or other appropriate remedy\nwhich is necessary to protect its interests or waive compliance with the non-disclosure provisions of this Agreement to the extent necessary (provided that one or the other he done). Each of the parties and their respective\nRepresentatives shall cooperate in all reasonable respects with each other in seeking to prevent orlimit disclosure and, in the event a protective order or other remedy is not obmined, the party being required to make disclosures\nwill limit the disclosure to the information actually required to be disclosed, provided that such party shall not be required to incur any out-of-pocket costs in complying with this paragraph\n8. Each of the parties shall indemnify and hold the other party and its Represenmtives harmless from any damages, loss, cost, or liability (including reasonable legal fees and the cost of enforcing this indemnity) arising out of or\nresulting from any unauthorized use or disclosure by the receiving party or its Representatives of the Confidential Information or other violation of this Agreement. In addition, because an award of money damages (whether\npursuant to the foregoing sentence or otherwise) would be inadequate for any breach of this Agreement by the receiving party or its Representatives and any such breach would cause the disclosing party irreparable harm, the\nreceiving party also agrees that, in the event of any breach or threatened breach of this Agreement, the disclosing party will also be entitled, without the requirement of posting a bond or other security, to equitable, relief, including\ninjunctive relief and specific performance. Such remedies will not be the exclusive remedies for any breach of this Agreement but will be in addition to all other remedies available at law or in equity to the disclosing party.\n9. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect If any of the covenants or\nprovision of this Agreement are determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the parties contemplate that the court making such determination shall reduce such extent, duration, scope\nor other provision and enforce them in their reduced form for all purposes contemplated by this Agreement.\n10. This Confidentiality LetterAgreement shall be governed by the laws of the Smte of Georgia without regard to conflicts of laws or principles.\nIN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date first written above.\nAGENT:\nCREATIVE INSURANCE MANAGERS, INCI\n/s/ Phillip A. Williams\nW\nCUSTOMER:\nSUB-CONTRACTING CONCEPTS, INCI\n/s/ Steven Rothman\nW\n11	EXHIBIT B\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis Confidentiality and Non-Disclosure greement (the 'Agreement") is made by and between Creative Insurance Managers, Inc. ("Agent") and Sub-Contracting Concepts, Inc ("Customer") and shall remain in force for the Term of\nthis Agreement.\n1.\nIn connection with the consideration of a possible engagement between the Customer and Agent, the Customer or its Representatives (as such term is defined herein) and A gent will furnish to each other, Confidential Information\n(as such term is defined herein) related to the business and operations of the Customer and Agent, respectively. As used herein, the term "Representatives" shall mean, the Customer's directors, officers employees, agents,\nconsultants, advisors, or other representatives including legal counsel, accountants and financial advisors.\n2.\nThe Customer and gent acknowledge the confidential and proprietary nature of the Confidential Information, agree to hold and keep the same as provided in this Agreement, and otherwise agree to each and every restriction\nand\nobligation in this Agreement.\n3.\nAs used in this Agreement, the term "Confidential Information" means and includes any and all:\na.\nTrade secrets concering the business and affairs of either party, product specifications, data, know-how formulae, compositions, processes, designs, sketches, photographs, graphs, drawings, samples, inventions\nand ideas, past current and planned research and development, current and planned manufacturing or distribution methods and processes, current and anticipated customer requirements, price lists, market\nstudies, business plans, computer software and programs, structures and architectures (and related processes, formulae composition, improvements, devices, know-how inventions, discoveries, concepts, ideas,\ndesigns, methods and inforation), and any other information, however documented, that is a trade secret within the meaning of Georgia law;\nb.\nnon-public personal information concerning the Customer's or Agent's customers, which information shall include without limitation, non-public personal financial information and non-public health\ninformation concerning such Customer customers; and\nc.\ninformation concerning the business and affairs of each party (which includes historical financial statements, financia projections and budgets, historical and projected sales, capital spending budgets and plans,\nthe names and backgrounds of key personnel, personnel training techniques and materials, however documented, that has been or may hereafter be provided or shown to the receiving party or its Representatives\nor is otherwise obtained from review of documents or property or discussion with the disclosing party or its Representatives by the receiving party or its Representatives (including current or prospective\nfinancing sources) irrespective of the form of the communication, and also includes all notes, analyses, compilations, studies, summaries and other material prepared by the receiving party or its Representatives\ncontaining or based in whole or in part, on any information included in the foregoing In the case of trade secrets, both parties hereby waive any requirement that the party disclosing the trade secret submit proof\nof the economic value of any trade secret or post a bond or other security\n4.\nThe Confidential Information is being fumished without liability on the part of either party or any of their respective Representatives. This A greemen creates no obligation on the part of either party to furnish any information to\nthe other party However, the actual dissemination of Confidential Information pursuant to the terms of this A Agreement shall serve as consideration for the covenants made hereunder.\n9\n5.\nEach party agrees on its own behalf, and agrees to cause its Representatives:\na.\nto maintain the confidentiality of the Confidential Information:\nb.\nnot to use or allow the use of any portion of such Confidential Information for any purpose (other than evaluating a possible engagement between the parties, brokering the procurement of any Product for the\nCustomer or the customer's client or performing any of the Services provided for by the Schedule(s).\nC.\nnot to disclose or allow disclosure to others of any portion of the Confidential Information provided to it, except to those of its Representatives who need to know such Confidential Information for the purpose of\nevaluating a possible engagement between the parties and who are made aware of, and who agree to be bound by, the terms of this A greement (collectively, the "Permitted Representatives") and then only for the\npurpose described in clause (b) above;\nd.\nnot to disclose or allow disclosure to persons other than the Permitted Representatives that Confidential Information (the term "person" to be broadly interpreted to include without limitation, any individual\ncorporation, estate group, limited liability company, partnership, trust or other entity);\ne.\nnot to make or allow to be made copies of or otherwise reproduce the Confidential Information provided to it, except as reasonably required in connection with evaluating a possible engagement between the\nparties, brokering the procurement of any Product, or performing any of the Services provided for by the Schedule(s or as permitted with the specific prior written consent of the disclosing party; and\nf.\nwithin ten (10) business days of a request by the disclosing party, to destroy all of the Confidential Information provided to the receiving party in written form, including all copies thereof and any works derived\nthere from or containing Confidential Information and to certify to such destruction, such certification, at the request of the disclosing party, specifically listing all such Confidentia Information destroyed.\n6.\nAl of the foregoing obligations and restrictions do not apply to that part of the Confidential Information that the receiving party demonstrates (a) was or becomes generally available to the public other than as a result of a\ndisclosure by the receiving party or the receiving party's Representatives or (b) was available, or becomes available to the receiving party on a non-confidential basis prior to its disclosure to the receiving party by the disclosing\nparty or a disclosing party Representative, but only if (i) the source of such information is not bound by the Confidentiality Agreement with disclosing party or is not otherwise prohibited from transmitting the information to the\nreceiving party or the receiving party's Representatives by a contractual legal fiduciary, or other obligation and (ii) the receiving party provides disclosing party with written notice of such prior possession either (A) prior to the\nexecution and delivery of this A greement or (B) if the receiving party later becomes aware of (through disclosure to the receiving party or otherwise through the receiving party's work on the engagement) any aspect\nof\nthe\nConfidential Information of which the receiving party had prior possession, promptly upon the receiving party becoming aware of such aspect.\n10\n7.\nIn the event that the parties or their respective Representatives, is, in the opinion of legal counsel, required by legal process, law or regulation to disclose any portion of the Confidential Information provided to it, such party shall\nprovide the other party with prompt written notice of such requirement as far in advance of the proposed disclosure as possible so that the other party (at its expense) may either seek a protective order or other appropriate remedy\nwhich is necessary to protect its interests or waive compliance with the non-disclosure provisions of this Agreement to the extent necessary (provided that one or the other be done). Each of the parties and their respective\nRepresentatives shall cooperate in all reasonable respects with each other in seeking to prevent or limit disclosure and, in the event a protective order or other remedy is not obtained, the party being required to make disclosures\nwill limit the disclosure to the information actually required to be disclosed, provided that such party shall not be required to incur any out-of-pocket costs in complying with this paragraph\n8.\nEach of the parties shall indemnify and hold the other party and its Representatives harmless from any damages, loss, cost, or liability (including reasonable legal fees and the cost of enforcing this indemnity) arising out of or\nresulting from any unauthorized use or disclosure by the receiving party or its Representatives of the Confidential Information or other violation of this Agreement. In addition, because an award of money damages (whether\npursuant to the foregoing sentence or otherwise) would be inadequate for any breach of this Agreement by the receiving party or its Representatives and any such breach would cause the disclosing party irreparable harm, the\nreceiving party also agrees that in the event of any breach or threatened breach of this Agreement, the disclosing party will also be entitled, without the requirement of posting a bond or other security, to equitable, relief, including\ninjunctive relief and specific performance Such remedies will not be the exclusive remedies for any breach of this Agreement but will be in addition to all other remedies available at law or in equity to the disclosing party.\n9.\nThe invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement which shall remain in full force and effect. If any of the covenants\nor\nprovision of this A greement are determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the parties contemplate that the court making such determination shall reduce such extent, duration scope\nor other provision and enforce them in their reduced form for all purposes contemplated by this Agreement\n10.\nThis Confidentiality Letter Agreement shall be governed by the laws of the State of Georgia without regard to conflicts of laws or principles.\nIN WITNESS WHEREOF, the parties have executed and delivered this A greement as of the date first written above.\nAGENT:\nCREATIVE INSURANCE MANAGERS, INC.\n/s/ Phillip A. Williams\nPhimnp A W llams, President\nCUSTOMER:\nSUB-CONTRACTING CONCEPTS, INC.\n/s/ Steven Rothman\nSteven Rothman, CEU, coach Industnes Group, Inc.\n11	EXHIBIT B\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis Confidentiality and Non-Disclosure Agreement (the “Agreement”) is made by and between Creative Insurance Managers, Inc. ( “Agent”) and Sub-Contracting Concepts, Inc. ( “Customer”) and shall remain in force for the Term of\nthis Agreement.\n1.\nIn connection with the consideration of a possible engagement between the Customer and Agent, the Customer or its Representatives (as such term is defined herein) and Agent will furnish to each other, Confidential Information\n(as such term is defined herein) related to the business and operations of the Customer and Agent, respectively. As used herein, the term “Representatives” shall mean, the Customer’s directors, officers, employees, agents,\nconsultants, advisors, or other representatives including legal counsel, accountants and financial advisors.\n2.\nThe Customer and Agent acknowledge the confidential and proprietary nature of the Confidential Information, agree to hold and keep the same as provided in this Agreement, and otherwise agree to each and every restriction and\nobligation in this Agreement.\n3.\nAs used in this Agreement, the term “Confidential Information” means and includes any and all:\na.\nTrade secrets concerning the business and affairs of either party, product specifications, data, know-how, formulae, compositions, processes, designs, sketches, photographs, graphs, drawings, samples, inventions\nand ideas, past current, and planned research and development, current and planned manufacturing or distribution methods and processes, current and anticipated customer requirements, price lists, market\nstudies, business plans, computer software and programs, structures and architectures (and related processes, formulae, composition, improvements, devices, know-how, inventions, discoveries, concepts, ideas,\ndesigns, methods and information), and any other information, however documented, that is a trade secret within the meaning of Georgia law;\nb.\nnon-public personal information concerning the Customer’s or Agent’s customers, which information shall include, without limitation, non-public personal financial information and non-public health\ninformation concerning such Customer customers; and\nc.\ninformation concerning the business and affairs of each party (which includes historical financial statements, financial projections and budgets, historical and projected sales, capital spending budgets and plans,\nthe names and backgrounds of key personnel, personnel training techniques and materials, however documented, that has been or may hereafter be provided or shown to the receiving party or its Representatives\nor is otherwise obtained from review of documents or property or discussion with the disclosing party or its Representatives by the receiving party or its Representatives (including current or prospective\nfinancing sources) irrespective of the form of the communication, and also includes all notes, analyses, compilations, studies, summaries, and other material prepared by the receiving party or its Representatives\ncontaining or based, in whole or in part, on any information included in the foregoing. In the case of trade secrets, both parties hereby waive any requirement that the party disclosing the trade secret submit proof\nof the economic value of any trade secret or post a bond or other security\n4.\nThe Confidential Information is being furnished without liability on the part of either party or any of their respective Representatives. This Agreement creates no obligation on the part of either party to furnish any information to\nthe other party. However, the actual dissemination of Confidential Information pursuant to the terms of this Agreement shall serve as consideration for the covenants made hereunder.\n9\n5.\nEach party agrees on its own behalf, and agrees to cause its Representatives:\na.\nto maintain the confidentiality of the Confidential Information:\nb.\nnot to use or allow the use of any portion of such Confidential Information for any purpose (other than evaluating a possible engagement between the parties, brokering the procurement of any Product for the\nCustomer or the customer’s client or performing any of the Services provided for by the Schedule(s).\nc.\nnot to disclose or allow disclosure to others of any portion of the Confidential Information provided to it, except to those of its Representatives who need to know such Confidential Information for the purpose of\nevaluating a possible engagement between the parties and who are made aware of, and who agree to be bound by, the terms of this Agreement (collectively, the “Permitted Representatives”) and then only for the\npurpose described in clause (b) above;\nd.\nnot to disclose or allow disclosure to persons other than the Permitted Representatives that Confidential Information (the term “person” to be broadly interpreted to include, without limitation, any individual,\ncorporation, estate, group, limited liability company, partnership, trust or other entity);\ne.\nnot to make or allow to be made copies of or otherwise reproduce the Confidential Information provided to it, except as reasonably required in connection with evaluating a possible engagement between the\nparties, brokering the procurement of any Product, or performing any of the Services provided for by the Schedule(s) or as permitted with the specific prior written consent of the disclosing party; and\nf.\nwithin ten (10) business days of a request by the disclosing party, to destroy all of the Confidential Information provided to the receiving party in written form, including all copies thereof and any works derived\nthere from or containing Confidential Information and to certify to such destruction, such certification, at the request of the disclosing party, specifically listing all such Confidential Information destroyed.\n6.\nAll of the foregoing obligations and restrictions do not apply to that part of the Confidential Information that the receiving party demonstrates (a) was or becomes generally available to the public other than as a result of a\ndisclosure by the receiving party or the receiving party’s Representatives or (b) was available, or becomes available, to the receiving party on a non-confidential basis prior to its disclosure to the receiving party by the disclosing\nparty or a disclosing party Representative, but only if (i) the source of such information is not bound by the Confidentiality Agreement with disclosing party or is not otherwise prohibited from transmitting the information to the\nreceiving party or the receiving party’s Representatives by a contractual, legal, fiduciary, or other obligation and (ii) the receiving party provides disclosing party with written notice of such prior possession either (A) prior to the\nexecution and delivery of this Agreement or (B) if the receiving party later becomes aware of (through disclosure to the receiving party or otherwise through the receiving party’s work on the engagement) any aspect of the\nConfidential Information of which the receiving party had prior possession, promptly upon the receiving party becoming aware of such aspect.\n10\n7.\nIn the event that the parties or their respective Representatives, is, in the opinion of legal counsel, required by legal process, law or regulation to disclose any portion of the Confidential Information provided to it, such party shall\nprovide the other party with prompt written notice of such requirement as far in advance of the proposed disclosure as possible so that the other party (at its expense) may either seek a protective order or other appropriate remedy\nwhich is necessary to protect its interests or waive compliance with the non-disclosure provisions of this Agreement to the extent necessary (provided that one or the other be done). Each of the parties and their respective\nRepresentatives shall cooperate in all reasonable respects with each other in seeking to prevent or limit disclosure and, in the event a protective order or other remedy is not obtained, the party being required to make disclosures\nwill limit the disclosure to the information actually required to be disclosed, provided that such party shall not be required to incur any out-of-pocket costs in complying with this paragraph.\n8.\nEach of the parties shall indemnify and hold the other party and its Representatives harmless from any damages, loss, cost, or liability (including reasonable legal fees and the cost of enforcing this indemnity) arising out of or\nresulting from any unauthorized use or disclosure by the receiving party or its Representatives of the Confidential Information or other violation of this Agreement. In addition, because an award of money damages (whether\npursuant to the foregoing sentence or otherwise) would be inadequate for any breach of this Agreement by the receiving party or its Representatives and any such breach would cause the disclosing party irreparable harm, the\nreceiving party also agrees that, in the event of any breach or threatened breach of this Agreement, the disclosing party will also be entitled, without the requirement of posting a bond or other security, to equitable, relief, including\ninjunctive relief and specific performance. Such remedies will not be the exclusive remedies for any breach of this Agreement but will be in addition to all other remedies available at law or in equity to the disclosing party.\n9.\nThe invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect. If any of the covenants or\nprovision of this Agreement are determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the parties contemplate that the court making such determination shall reduce such extent, duration, scope\nor other provision and enforce them in their reduced form for all purposes contemplated by this Agreement.\n10.\nThis Confidentiality Letter Agreement shall be governed by the laws of the State of Georgia without regard to conflicts of laws or principles.\nIN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date first written above.\nAGENT:\nCREATIVE INSURANCE MANAGERS, INC.\n/s/ Phillip A. Williams\nPhillip A. Williams, President\nCUSTOMER:\nSUB-CONTRACTING CONCEPTS, INC .\n/s/ Steven Rothman\nSteven Rothman, CEO, Coach Industries Group, Inc.\n11
8d7ff254a917b94f20d1710ab93b23ab.pdf	effective_date jurisdiction party term	EX-99.(D)(9) 18 dex99d9.htm CONFIDENTIALITY AGREEMENT DATED SEPTEMBER 4, 2003 BETWEEN\nORBITZ LLC AND CENDANT\nExhibit(d)(9)\nSeptember 4, 2003\nCendant Corporation\n9 West 57th Street\nNew York, New York 10019\nLadies and Gentlemen:\nWe are writing with regard to your interest in discussing the possibility of negotiating a transaction between Orbitz LLC, a Delaware limited liability\ncompany (“Company”) and Cendant Corporation, a Delaware corporation (“Cendant”). In the course of discussions concerning a possible\ntransaction between Company and Cendant, Cendant and Company (as applicable, “Recipient”) may obtain from one another (as applicable,\n“Disclosing Party”) or their respective representatives information whether written, oral or electronic in form including data, reports, interpretations,\ndocuments and records containing or otherwise reflecting information, concerning the Disclosing Party’s business, and which thereafter may be\ncontained or reflected in analyses, compilations, studies or other documents, whether prepared by the Recipient or others (collectively, the\n“Confidential Information). The following information will not constitute Confidential Information for purposes of this letter: (a) information which\nwas, or has become, generally available to the public other than as a result of a disclosure in violation of the terms hereof or through Disclosing Party\nor its representatives, (b) information which was available to Recipient on a non-confidential basis prior to its disclosure to Recipient by Disclosing\nParty (provided that the Recipient had no reason to know that the source of the information was breaching a duty to Disclosing Party by disclosing\nsuch Confidential Information), (c) information developed by Recipient without the use of Confidential Information.\nRecipient agrees that the Confidential Information will be held and treated by Recipient confidentially and will not be disclosed to any other person\nor entity and that the Confidential Information will not be used for any purpose other than to evaluate the possible transaction described in this letter;\nprovided, however, that (i) Recipient may disclose the Confidential Information to those of its representatives who need to know such Confidential\nInformation for the purpose of evaluating the transaction described in this letter and (ii) Recipient may disclose such Confidential Information as to\nwhich Disclosing Party has consented in writing to disclose or as required by law, SEC or NYSE regulations.\nIn addition, Recipient agrees that it will not make any disclosure that it is having or has had discussions concerning a possible transaction involving\nDisclosing Party, that Recipient has received Confidential Information or that Recipient is considering a possible transaction involving Disclosing\nParty; provided, however, that Recipient may make such disclosure if it has received advice from its counsel that such disclosure must be made by\nRecipient in order that it not commit a violation of law and, prior to such disclosure, Recipient promptly advises and consults with the\nDisclosing Party and its legal counsel concerning the information it proposes to disclose.\nRecipient agrees that if it decides not to proceed with a transaction of the type contemplated herein, it will promptly inform Disclosing Party of that\ndecision. Recipient agrees that all written and/or electronic Confidential Information will be returned to Disclosing Party or destroyed promptly upon\nDisclosing Party’s general request. Notwithstanding the return or destruction of Confidential Information, Recipient and its representatives will\ncontinue to be bound by their obligations of confidentiality and other obligations hereunder.\nRecipient agrees that it will inform each of its representatives which has, or will have, access to any or all of the Confidential Information, of the\nexistence and content of this letter and will take all reasonable action necessary to cause such representatives to observe the confidentiality\nrequirements hereof. In any event, Recipient agrees to be responsible for any breach of this agreement by any of its representatives. This letter shall\nnot prohibit disclosure by Recipient of any Confidential Information if, in the reasonable opinion of Recipient’s legal counsel, such disclosure is\nrequired to avoid a violation of law, SEC or NYSE regulations by Recipient, in which event Recipient shall only do so to the limited extent\nnecessary to comply with such law and shall, to the extent practicable, give Disclosing Party advance notice thereof and an opportunity to comment\non any such disclosure. In the event that Recipient is required in any proceeding to disclose any of the Confidential Information, it will give the\nDisclosing Party prompt written notice of such request so that Disclosing Party may seek an appropriate protective order. If Recipient is compelled\nto disclose all or any part of the Confidential Information, it may disclose without liability hereunder such Confidential Information as it is legally\nrequired to disclose; provided, however, that Recipient will give Disclosing Party written notice of the Confidential Information to be disclosed as\nfar in advance of its disclosure as practicable and, upon Disclosing Party’s request and at Disclosing Party’s expense, use reasonable efforts to assist\nDisclosing Party in obtaining assurances that confidential treatment and/or a protective order will be accorded to such Confidential Information.\nThe obligations set forth in the previous paragraph shall survive the termination of this letter, termination of discussions between the parties and the\ncompletion of the parties’ evaluation of the possible transaction, and shall remain in effect until the possible transaction is consummated, the\nimplicated Confidential Information becomes generally available to the public other than through a violation of the terms of this letter, or two years\nfrom the date of this letter, whichever comes first.\nRecipient understands and agrees that none of Disclosing Party or any of its affiliates, agents, advisors or representatives (i) have made or make any\nrepresentation or warranty, expressed or implied, as to the accuracy or completeness of the Confidential Information or (ii) shall have any liability\nwhatsoever to Recipient or its representatives relating to or resulting from the use of the\n2\nConfidential Information or any errors therein or omissions therefrom.\nThe validity, interpretation and performance of this letter shall be governed by and construed in accordance with the laws of the State of Delaware,\nexcluding any choice of law rules that may direct the application of the laws of any other jurisdiction.\nNo failure or delay by Disclosing party in exercising any right hereunder shall operate as a waiver thereof, nor shall any single or partial waiver\nthereof preclude any other or further exercise thereof or the exercise of any other right hereunder. This letter contains the entire understanding of the\nparties hereto with respect to the subject matter contained herein and supersedes all prior agreements and understandings between the parties with\nrespect to such subject matter. This letter may be amended or waived only by written instrument duly executed by the parties hereto. This letter may\nbe executed in several counterparts, all of which together shall constitute one and the same instrument.\nAdditionally, Cendant agrees that, for a period of two years from the date of this letter, it and its controlled affiliates will not acquire, or assist, advise\nor encourage any other person in acquiring, directly or indirectly, control of the Company or any of the Company’s securities, businesses or assets\nunless the Company shall have consented in advance to such acquisition. Notwithstanding anything contained herein to the contrary, the foregoing\nprohibition shall not apply to the following activities of Cendant and its affiliates: (i) acquisition of up to an aggregate of 2% of any one or more\nclasses of securities of the Company made without the intent of controlling the Company; or (ii) acquisitions made in connection with a transaction\nin which Cendant or an affiliate acquires a previously unaffiliated business entity that owns securities of the Company; or (iii) acquisitions made as a\nresult of a stock split, stock dividend or other recapitalization; or (iv) from making any request of the Company on a confidential basis, without any\npublic disclosure thereof by Cendant and without any intent to compel the Company to make any public disclosure thereof. In the event that the\nCompany enters into or publicly consents to a transaction involving a “Change in Control”, or becomes the target of a publicly announced tender\noffer, subject only to customary conditions, by a third party having adequate financial resources which, if concluded, would involve a “Change in\nControl”, then the restrictions and limitations contained in this paragraph shall not apply, unless and until such proposed “Change in Control”\ntransaction is terminated without being consummated or completed. For purpose of the foregoing, a transaction shall be deemed to involve a\n“Change in Control” if the transaction would involve any of the following: (A) any person or entity (other than the Founding Airlines as a group or\ntheir subsidiaries or affiliates as a group or any of their employee benefit plan or plans or any trustee of or fiduciary with respect to such plan or\nplans when acting in such capacity), or any group acting in concert, shall beneficially own, directly or indirectly, in excess of fifty percent (50%) of\nthe total voting power represented by the then outstanding voting securities of the Company; or (B) upon a merger, combination, consolidation or\nreorganization of the\n3\nCompany, other than a merger, combination, consolidation or reorganization which would result in (1) the voting securities of the Company\noutstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the\nsurviving entity) at least 51% of the voting power represented by the voting securities of the Company or such surviving entity outstanding\nimmediately after such transaction and (2) at least such 51% of voting power continuing to be held in the aggregate by the holders of the voting\nsecurities of the Company immediately prior to such transaction (conditions (1) and (2) are retired to as the “Continuance Conditions”); or (C) all or\nsubstantially all of the assets of the Company are sold or otherwise disposed of, whether in one transaction or a series of transactions, unless the\nContinuance Conditions shall have been satisfied with respect to the purchaser of such assets and such purchaser assumes the Company’s obligations\nunder this Agreement; or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission)\nor consents to vote any of the Company’s voting securities which results in a majority of the directors of the Company being comprised of\nindividuals other than (1) the directors of the Company following the election of the three independent directors, that may occur after the Initial\nPublic Offering or (2) any new director whose election or nomination for election to the Board of Directors was approved or recommended by the\nCompany’s board of directors. As used herein, the term “voting securities” shall mean any securities which vote generally in the election of\ndirectors. The foregoing provision shall become effective when Cendant has received any non-public confidential information pursuant to this letter.\nCendant also agrees that the Company may be entitled to equitable relief; including injunction, in the event of any breach of the provisions of this\nparagraph\nIt is acknowledged and agreed that money damages would not be a sufficient remedy for any breach of this letter and, accordingly, in the event of a\nbreach or threat of a breach of this letter by Recipient hereto, Disclosing Party shall be entitled to specific performance of this letter and an\ninjunction restraining such breach. Nothing herein shall be construed as limiting Disclosing Party’s right to any other remedies available for such\nbreach or threat of breach, including without limitation, the recovery of damages. This covenant shall be deemed to be an agreement independent of\nany other obligation of the parties hereto, and the existence of any claim or cause of action of a party hereto, whether predicated upon this letter or\notherwise, shall not constitute a defense to the enforcement of this covenant by the other party hereto.\nThis letter is for the benefit of the parties hereto, and is enforceable by each of them in accordance with its terms, and no other person or entity shall\nobtain any right under this letter other than the parties hereto.\n4\nVery truly yours,\nOrbitz LLC\nBy: /s/ John J. Park\nName: John J. Park\nTitle: CFO\nAccepted and agreed:\nCendant Corporation\nBy: /s/ Eric J. Bock\nName: Eric J. Bock\nTitle: Executive Vice President, Law\nand Corporate Secretary\n5	EX-99.(D)(9) 18 dex99d9.htm CONFIDENTIALITY AGREEMENT DATED SEPTEMBER 4, 2003 BETWEEN\nORBITZ LLC AND CENDANT\nExhibit(d)(9)\nSeptember 4, 2003\nCendant Corporation\n9 West 57th Street\nNew York, New York 10019\nLadies and Gentlemen:\nWe are writing with regard to your interest in discussing the possibility of negotiating a transaction between Orbitz LLC, a Delaware limited liability\ncompany (“Company”) and Cendant Corporation, a Delaware corporation (“Cendant”). In the course of discussions concerning a possible\ntransaction between Company and Cendant, Cendant and Company (as applicable, “Recipient”) may obtain from one another (as applicable,\n“Disclosing Party”) or their respective representatives information whether written, oral or electronic in form including data, reports, interpretations,\ndocuments and records containing or otherwise reflecting information, concerning the Disclosing Party’s business, and which thereafter may be\ncontained or reflected in analyses, compilations, studies or other documents, whether prepared by the Recipient or others (collectively, the\n“Confidential Information). The following information will not constitute Confidential Information for purposes of this letter: (a) information which\nwas, or has become, generally available to the public other than as a result of a disclosure in violation of the terms hereof or through Disclosing Party\nor its representatives, (b) information which was available to Recipient on a non-confidential basis prior to its disclosure to Recipient by Disclosing\nParty (provided that the Recipient had no reason to know that the source of the information was breaching a duty to Disclosing Party by disclosing\nsuch Confidential Information), (c) information developed by Recipient without the use of Confidential Information.\nRecipient agrees that the Confidential Information will be held and treated by Recipient confidentially and will not be disclosed to any other person\nor entity and that the Confidential Information will not be used for any purpose other than to evaluate the possible transaction described in this letter;\nprovided, however, that (i) Recipient may disclose the Confidential Information to those of its representatives who need to know such Confidential\nInformation for the purpose of evaluating the transaction described in this letter and (ii) Recipient may disclose such Confidential Information as to\nwhich Disclosing Party has consented in writing to disclose or as required by law, SEC or NYSE regulations.\nIn addition, Recipient agrees that it will not make any disclosure that it is having or has had discussions concerning a possible transaction involving\nDisclosing Party, that Recipient has received Confidential Information or that Recipient is considering a possible transaction involving Disclosing\nParty; provided, however, that Recipient may make such disclosure if it has received advice from its counsel that such disclosure must be made by\nRecipient in order that it not commit a violation of law and, prior to such disclosure, Recipient promptly advises and consults with the\nDisclosing Party and its legal counsel concerning the information it proposes to disclose.\nRecipient agrees that if it decides not to proceed with a transaction of the type contemplated herein, it will promptly inform Disclosing Party of that\ndecision. Recipient agrees that all written and/or electronic Confidential Information will be returned to Disclosing Party or destroyed promptly upon\nDisclosing Party’s general request. Notwithstanding the return or destruction of Confidential Information, Recipient and its representatives will\ncontinue to be bound by their obligations of confidentiality and other obligations hereunder.\nRecipient agrees that it will inform each of its representatives which has, or will have, access to any or all of the Confidential Information, of the\nexistence and content of this letter and will take all reasonable action necessary to cause such representatives to observe the confidentiality\nrequirements hereof. In any event, Recipient agrees to be responsible for any breach of this agreement by any of its representatives. This letter shall\nnot prohibit disclosure by Recipient of any Confidential Information if, in the reasonable opinion of Recipient’s legal counsel, such disclosure is\nrequired to avoid a violation of law, SEC or NYSE regulations by Recipient, in which event Recipient shall only do so to the limited extent\nnecessary to comply with such law and shall, to the extent practicable, give Disclosing Party advance notice thereof and an opportunity to comment\non any such disclosure. In the event that Recipient is required in any proceeding to disclose any of the Confidential Information, it will give the\nDisclosing Party prompt written notice of such request so that Disclosing Party may seek an appropriate protective order. If Recipient is compelled\nto disclose all or any part of the Confidential Information, it may disclose without liability hereunder such Confidential Information as it is legally\nrequired to disclose; provided, however, that Recipient will give Disclosing Party written notice of the Confidential Information to be disclosed as\nfar in advance of its disclosure as practicable and, upon Disclosing Party’s request and at Disclosing Party’s expense, use reasonable efforts to assist\nDisclosing Party in obtaining assurances that confidential treatment and/or a protective order will be accorded to such Confidential Information.\nThe obligations set forth in the previous paragraph shall survive the termination of this letter, termination of discussions between the parties and the\ncompletion of the parties’ evaluation of the possible transaction, and shall remain in effect until the possible transaction is consummated, the\nimplicated Confidential Information becomes generally available to the public other than through a violation of the terms of this letter, or two years\nfrom the date of this letter, whichever comes first.\nRecipient understands and agrees that none of Disclosing Party or any of its affiliates, agents, advisors or representatives (i) have made or make any\nrepresentation or warranty, expressed or implied, as to the accuracy or completeness of the Confidential Information or (ii) shall have any liability\nwhatsoever to Recipient or its representatives relating to or resulting from the use of the\n2\nConfidential Information or any errors therein or omissions therefrom.\nThe validity, interpretation and performance of this letter shall be governed by and construed in accordance with the laws of the State of Delaware,\nexcluding any choice of law rules that may direct the application of the laws of any other jurisdiction.\nNo failure or delay by Disclosing party in exercising any right hereunder shall operate as a waiver thereof, nor shall any single or partial waiver\nthereof preclude any other or further exercise thereof or the exercise of any other right hereunder. This letter contains the entire understanding of the\nparties hereto with respect to the subject matter contained herein and supersedes all prior agreements and understandings between the parties with\nrespect to such subject matter. This letter may be amended or waived only by written instrument duly executed by the parties hereto. This letter may\nbe executed in several counterparts, all of which together shall constitute one and the same instrument.\nAdditionally, Cendant agrees that, for a period of two years from the date of this letter, it and its controlled affiliates will not acquire, or assist, advise\nor encourage any other person in acquiring, directly or indirectly, control of the Company or any of the Company’s securities, businesses or assets\nunless the Company shall have consented in advance to such acquisition. Notwithstanding anything contained herein to the contrary, the foregoing\nprohibition shall not apply to the following activities of Cendant and its affiliates: (i) acquisition of up to an aggregate of 2% of any one or more\nclasses of securities of the Company made without the intent of controlling the Company; or (ii) acquisitions made in connection with a transaction\nin which Cendant or an affiliate acquires a previously unaffiliated business entity that owns securities of the Company; or (iii) acquisitions made as a\nresult of a stock split, stock dividend or other recapitalization; or (iv) from making any request of the Company on a confidential basis, without any\npublic disclosure thereof by Cendant and without any intent to compel the Company to make any public disclosure thereof. In the event that the\nCompany enters into or publicly consents to a transaction involving a “Change in Control”, or becomes the target of a publicly announced tender\noffer, subject only to customary conditions, by a third party having adequate financial resources which, if concluded, would involve a “Change in\nControl”, then the restrictions and limitations contained in this paragraph shall not apply, unless and until such proposed “Change in Control”\ntransaction is terminated without being consummated or completed. For purpose of the foregoing, a transaction shall be deemed to involve a\n“Change in Control” if the transaction would involve any of the following: (A) any person or entity (other than the Founding Airlines as a group or\ntheir subsidiaries or affiliates as a group or any of their employee benefit plan or plans or any trustee of or fiduciary with respect to such plan or\nplans when acting in such capacity), or any group acting in concert, shall beneficially own, directly or indirectly, in excess of fifty percent (50%) of\nthe total voting power represented by the then outstanding voting securities of the Company; or (B) upon a merger, combination, consolidation or\nreorganization of the\nCompany, other than a merger, combination, consolidation or reorganization which would result in (1) the voting securities of the Company\noutstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the\nsurviving entity) at least 51% of the voting power represented by the voting securities of the Company or such surviving entity outstanding\nimmediately after such transaction and (2) at least such 51% of voting power continuing to be held in the aggregate by the holders of the voting\nsecurities of the Company immediately prior to such transaction (conditions (1) and (2) are retired to as the “Continuance Conditions”); or (C) all or\nsubstantially all of the assets of the Company are sold or otherwise disposed of, whether in one transaction or a series of transactions, unless the\nContinuance Conditions shall have been satisfied with respect to the purchaser of such assets and such purchaser assumes the Company’s obligations\nunder this Agreement; or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission)\nor consents to vote any of the Company’s voting securities which results in a majority of the directors of the Company being comprised of\nindividuals other than (1) the directors of the Company following the election of the three independent directors, that may occur after the Initial\nPublic Offering or (2) any new director whose election or nomination for election to the Board of Directors was approved or recommended by the\nCompany’s board of directors. As used herein, the term “voting securities” shall mean any securities which vote generally in the election of\ndirectors. The foregoing provision shall become effective when Cendant has received any non-public confidential information pursuant to this letter.\nCendant also agrees that the Company may be entitled to equitable relief; including injunction, in the event of any breach of the provisions of this\nparagraph\nIt is acknowledged and agreed that money damages would not be a sufficient remedy for any breach of this letter and, accordingly, in the event of a\nbreach or threat of a breach of this letter by Recipient hereto, Disclosing Party shall be entitled to specific performance of this letter and an\ninjunction restraining such breach. Nothing herein shall be construed as limiting Disclosing Party’s right to any other remedies available for such\nbreach or threat of breach, including without limitation, the recovery of damages. This covenant shall be deemed to be an agreement independent of\nany other obligation of the parties hereto, and the existence of any claim or cause of action of a party hereto, whether predicated upon this letter or\notherwise, shall not constitute a defense to the enforcement of this covenant by the other party hereto.\nThis letter is for the benefit of the parties hereto, and is enforceable by each of them in accordance with its terms, and no other person or entity shall\nobtain any right under this letter other than the parties hereto.\nVery truly yours,\nOrbitz LLC\nBy: /s/ John J. Park\nName: John J. Park\nTitle: CFO\nAccepted and agreed:\nCendant Corporation\nBy: /s/ Eric J. Bock\nName: Eric J. Bock\nTitle: Executive Vice President, Law\nand Corporate Secretary	EX-99.(D)(9) 18 dex99d9.htm CONFIDENTIALITY AGREEMENT DATED SEPTEMBER 4, 2003 BETWEEN\nORBITZ LLC AND CENDANT\nExhibit(d)(9\nSeptember 4, 2003\nCendant Corporation\n9 West 57th Street\nNew York, New York 10019\nLadies and Gentlemen:\nWe are writing with regard to your interest in discussing the possibility of negotiating a transaction between Orbitz LLC, a Delaware limited liability\ncompany ("Company") and Cendant Corporation, a Delaware corporation ("Cendant"). In the course of discussions concerning a possible\ntransaction between Company and Cendant, Cendant and Company (as applicable, "Recipient") may obtain from one another (as applicable,\n"Disclosing Party") or their respective representatives information whether written, oral or electronic in form including data, reports, interpretations,\ndocuments and records containing or otherwise reflecting information, concerning the Disclosing Party's business, and which thereafter may be\ncontained or reflected in analyses, compilations, studies or other documents, whether prepared by the Recipient or others (collectively, the\n"Confidential Information). The following information will not constitute Confidential Information for purposes of this letter: (a) information which\nwas, or has become, generally available to the public other than as a result of a disclosure in violation of the terms hereof or through Disclosing Party\nor its representatives, (b) information which was available to Recipient on a non-confidential basis prior to its disclosure to Recipient by Disclosing\nParty (provided that the Recipient had no reason to know that the source of the information was breaching a duty to Disclosing Party by disclosing\nsuch Confidential Information), (c) information developed by Recipient without the use of Confidential Information.\nRecipient agrees that the Confidential Information will be held and treated by Recipient confidentially and will not be disclosed to any other person\nor entity and that the Confidential Information will not be used for any purpose other than to evaluate the possible transaction described in this letter;\nprovided, however, that (i) Recipient may disclose the Confidential Information to those of its representatives who need to know such Confidential\nInformation for the purpose of evaluating the transaction described in this letter and (ii) Recipient may disclose such Confidential Information as to\nwhich Disclosing Party has consented in writing to disclose or as required by law, SEC or NYSE regulations.\nIn addition, Recipient agrees that it will not make any disclosure that it is having or has had discussions concerning a possible transaction involving\nDisclosing Party, that Recipient has received Confidential Information or that Recipient is considering a possible transaction involving Disclosing\nParty; provided, however, that Recipient may make such disclosure if it has received advice from its counsel that such disclosure must be made by\nRecipient in order that it not commit a violation of law and, prior to such disclosure, Recipient promptly advises and consults with the\nDisclosing Party and its legal counsel concerning the information it proposes to disclose.\nRecipient agrees that if it decides not to proceed with a transaction of the type contemplated herein, it will promptly inform Disclosing Party of that\ndecision. Recipient agrees that all written and/or electronic Confidential Information will be returned to Disclosing Party or destroyed promptly upon\nDisclosing Party's general request. Notwithstanding the return or destruction of Confidential Information, Recipient and its representatives will\ncontinue to be bound by their obligations of confidentiality and other obligations hereunder.\nRecipient agrees that it will inform each of its representatives which has, or will have, access to any or all of the Confidential Information, of the\nexistence and content of this letter and will take all reasonable action necessary to cause such representatives to observe the confidentiality\nrequirements hereof. In any event, Recipient agrees to be responsible for any breach of this agreement by any of its representatives. This letter shall\nnot prohibit disclosure by Recipient of any Confidential Information if, in the reasonable opinion of Recipient's legal counsel, such disclosure is\nrequired to avoid a violation of law, SEC or NYSE regulations by Recipient, in which event Recipient shall only do so to the limited extent\nnecessary to comply with such law and shall, to the extent practicable, give Disclosing Party advance notice thereof and an opportunity to comment\non any such disclosure. In the event that Recipient is required in any proceeding to disclose any of the Confidential Information, it will give the\nDisclosing Party prompt written notice of such request so that Disclosing Party may seek an appropriate protective order. If Recipient is compelled\nto disclose all or any part of the Confidential Information, it may disclose without liability hereunder such Confidential Information as it is legally\nrequired to disclose; provided, however, that Recipient will give Disclosing Party written notice of the Confidential Information to be disclosed\nas\nfar in advance of its disclosure as practicable and, upon Disclosing Party's request and at Disclosing Party's expense, use reasonable efforts to assist\nDisclosing Party in obtaining assurances that confidential treatment and/or a protective order will be accorded to such Confidential Information.\nThe obligations set forth in the previous paragraph shall survive the termination of this letter, termination of discussions between the parties and the\ncompletion of the parties' evaluation of the possible transaction, and shall remain in effect until the possible transaction is consummated, the\nimplicated Confidential Information becomes generally available to the public other than through a violation of the terms of this letter, or two years\nfrom the date of this letter, whichever comes first.\nRecipient understands and agrees that none of Disclosing Party or any of its affiliates, agents, advisors or representatives (i) have made or make any\nrepresentation or warranty, expressed or implied, as to the accuracy or completeness of the Confidential Information or (ii) shall have any liability\nwhatsoever to Recipient or its representatives relating to or resulting from the use of the\n2\nConfidential Information or any errors therein or omissions therefrom.\nThe validity, interpretation and performance of this letter shall be governed by and construed in accordance with the laws of the State of Delaware,\nexcluding any choice of law rules that may direct the application of the laws of any other jurisdiction.\nNo failure or delay by Disclosing party in exercising any right hereunder shall operate as a waiver thereof, nor shall any single or partial waiver\nthereof preclude any other or further exercise thereof or the exercise of any other right hereunder. This letter contains the entire understanding of\nthe\nparties hereto with respect to the subject matter contained herein and supersedes all prior agreements and understandings between the parties with\nrespect to such subject matter. This letter may be amended or waived only by written instrument duly executed by the parties hereto.\nThis\nletter\nmay\nbe executed in several counterparts, all of which together shall constitute one and the same instrument.\nAdditionally, Cendant agrees that, for a period of two years from the date of this letter, it and its controlled affiliates will not acquire, or assist, advise\nor\nencourage any other person in acquiring, directly or indirectly, control of the Company or any of the Company's securities, businesses or assets\nunless the Company shall have consented in advance to such acquisition. Notwithstanding anything contained herein to the contrary, the foregoing\nprohibition shall not apply to the following activities of Cendant and its affiliates: (i) acquisition of up to an aggregate of 2% of any one or more\nclasses of securities of the Company made without the intent of controlling the Company; or (ii) acquisitions made in connection with a transaction\nin which Cendant or an affiliate acquires a previously unaffiliated business entity that owns securities of the Company; or (iii) acquisitions made as a\nresult of a stock split, stock dividend or other recapitalization; or (iv) from making any request of the Company on a confidential basis, without\nany\npublic disclosure thereof by Cendant and without any intent to compel the Company to make any public disclosure thereof. In the event that the\nCompany enters into or publicly consents to a transaction involving a "Change in Control", or becomes the target of a publicly announced tender\noffer, subject only to customary conditions, by a third party having adequate financial resources which, if concluded, would involve a "Change in\nControl", then the restrictions and limitations contained in this paragraph shall not apply, unless and until such proposed "Change in Control"\ntransaction is terminated without being consummated or completed. For purpose of the foregoing, a transaction shall be deemed to involve a\n"Change in Control" if the transaction would involve any of the following: (A) any person or entity (other than the Founding Airlines\nas\na\ngroup\nor\ntheir subsidiaries or affiliates as a group or any of their employee benefit plan or plans or any trustee of or fiduciary with respect to such plan or\nplans when acting in such capacity), or any group acting in concert, shall beneficially own, directly or indirectly, in excess of fifty percent (50%) of\nthe total voting power represented by the then outstanding voting securities of the Company; or (B) upon a merger, combination, consolidation or\nreorganization of the\n3\nCompany, other than a merger, combination, consolidation or reorganization which would result in (1) the voting securities of the Company\noutstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of\nthe\nsurviving entity) at least 51% of the voting power represented by the voting securities of the Company or such surviving entity outstanding\nimmediately after such transaction and (2) at least such 51% of voting power continuing to be held in the aggregate by the holders of the voting\nsecurities of the Company immediately prior to such transaction (conditions (1) and (2) are retired to as the "Continuance Conditions"); or (C)\nall\nor\nsubstantially all of the assets of the Company are sold or otherwise disposed of, whether in one transaction or a series of transactions, unless the\nContinuance Conditions shall have been satisfied with respect to the purchaser of such assets and such purchaser assumes the Company's obligations\nunder this Agreement; or (D) any "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and Exchange Commission)\nor consents to vote any of the Company's voting securities which results in a majority of the directors of the Company being comprised of\nindividuals other than (1) the directors of the Company following the election of the three independent directors, that may occur after the Initial\nPublic Offering or (2) any new director whose election or nomination for election to the Board of Directors was approved or recommended by the\nCompany's board of directors. As used herein, the term "voting securities" shall mean any securities which vote generally in the election\nof\ndirectors. The foregoing provision shall become effective when Cendant has received any non-public confidential information pursuant to this letter.\nCendant also agrees that the Company may be entitled to equitable relief; including injunction, in the event of any breach of the provisions of this\nparagraph\nIt is acknowledged and agreed that money damages would not be a sufficient remedy for any breach of this letter and, accordingly, in the event of\na\nbreach or threat of a breach of this letter by Recipient hereto, Disclosing Party shall be entitled to specific performance of this letter and an\ninjunction restraining such breach. Nothing herein shall be construed as limiting Disclosing Party's right to any other remedies available for such\nbreach or threat of breach, including without limitation, the recovery of damages. This covenant shall be deemed to be an agreement independent of\nany other obligation of the parties hereto, and the existence of any claim or cause of action of a party hereto, whether predicated upon this letter or\notherwise, shall not constitute a defense to the enforcement of this covenant by the other party hereto.\nThis letter is for the benefit of the parties hereto, and is enforceable by each of them in accordance with its terms, and no other person or entity shall\nobtain any right under this letter other than the parties hereto.\n4\nVery truly yours,\nOrbitz LLC\nBy:\n/s/ John J. Park\nName: John J. Park\nTitle: CFO\nAccepted and agreed:\nCendant Corporation\nBy:\n/s/ Eric J. Bock\nName: Eric J. Bock\nTitle:\nExecutive Vice President, Law\nand Corporate Secretary\n5	EX-99.(D)(9) 18 dex99d9.htm CONFIDENTIALITY AGREEMENT DATED SEPTEMBER 4, 2003 BETWEEN\nORBITZ LLC AND CENDANT\nExhibit(d)(9)\nSeptember 4, 2003\nCendant Corporation\n9 West 57th Street\nNew York, New York 10019\nLadies and Gentlemen:\nWe are writing with regard to your interest in discussing the possibility of negotiating a transaction between Orbitz LLC, a Delaware limited liability\ncompany (“Company”) and Cendant Corporation, a Delaware corporation (“Cendant”). In the course of discussions concerning a possible\ntransaction between Company and Cendant, Cendant and Company (as applicable, “Recipient”) may obtain from one another (as applicable,\n“Disclosing Party”) or their respective representatives information whether written, oral or electronic in form including data, reports, interpretations,\ndocuments and records containing or otherwise reflecting information, concerning the Disclosing Party’s business, and which thereafter may be\ncontained or reflected in analyses, compilations, studies or other documents, whether prepared by the Recipient or others (collectively, the\n“Confidential Information). The following information will not constitute Confidential Information for purposes of this letter: (a) information which\nwas, or has become, generally available to the public other than as a result of a disclosure in violation of the terms hereof or through Disclosing Party\nor its representatives, (b) information which was available to Recipient on a non-confidential basis prior to its disclosure to Recipient by Disclosing\nParty (provided that the Recipient had no reason to know that the source of the information was breaching a duty to Disclosing Party by disclosing\nsuch Confidential Information), (c) information developed by Recipient without the use of Confidential Information.\nRecipient agrees that the Confidential Information will be held and treated by Recipient confidentially and will not be disclosed to any other person\nor entity and that the Confidential Information will not be used for any purpose other than to evaluate the possible transaction described in this letter;\nprovided, however, that (i) Recipient may disclose the Confidential Information to those of its representatives who need to know such Confidential\nInformation for the purpose of evaluating the transaction described in this letter and (ii) Recipient may disclose such Confidential Information as to\nwhich Disclosing Party has consented in writing to disclose or as required by law, SEC or NYSE regulations.\nIn addition, Recipient agrees that it will not make any disclosure that it is having or has had discussions concerning a possible transaction involving\nDisclosing Party, that Recipient has received Confidential Information or that Recipient is considering a possible transaction involving Disclosing\nParty; provided, however, that Recipient may make such disclosure if it has received advice from its counsel that such disclosure must be made by\nRecipient in order that it not commit a violation of law and, prior to such disclosure, Recipient promptly advises and consults with the\nDisclosing Party and its legal counsel concerning the information it proposes to disclose.\nRecipient agrees that if it decides not to proceed with a transaction of the type contemplated herein, it will promptly inform Disclosing Party of that\ndecision. Recipient agrees that all written and/or electronic Confidential Information will be returned to Disclosing Party or destroyed promptly upon\nDisclosing Party’s general request. Notwithstanding the return or destruction of Confidential Information, Recipient and its representatives will\ncontinue to be bound by their obligations of confidentiality and other obligations hereunder.\nRecipient agrees that it will inform each of its representatives which has, or will have, access to any or all of the Confidential Information, of the\nexistence and content of this letter and will take all reasonable action necessary to cause such representatives to observe the confidentiality\nrequirements hereof. In any event, Recipient agrees to be responsible for any breach of this agreement by any of its representatives. This letter shall\nnot prohibit disclosure by Recipient of any Confidential Information if, in the reasonable opinion of Recipient’s legal counsel, such disclosure is\nrequired to avoid a violation of law, SEC or NYSE regulations by Recipient, in which event Recipient shall only do so to the limited extent\nnecessary to comply with such law and shall, to the extent practicable, give Disclosing Party advance notice thereof and an opportunity to comment\non any such disclosure. In the event that Recipient is required in any proceeding to disclose any of the Confidential Information, it will give the\nDisclosing Party prompt written notice of such request so that Disclosing Party may seek an appropriate protective order. If Recipient is compelled\nto disclose all or any part of the Confidential Information, it may disclose without liability hereunder such Confidential Information as it is legally\nrequired to disclose; provided, however, that Recipient will give Disclosing Party written notice of the Confidential Information to be disclosed as\nfar in advance of its disclosure as practicable and, upon Disclosing Party’s request and at Disclosing Party’s expense, use reasonable efforts to assist\nDisclosing Party in obtaining assurances that confidential treatment and/or a protective order will be accorded to such Confidential Information.\nThe obligations set forth in the previous paragraph shall survive the termination of this letter, termination of discussions between the parties and the\ncompletion of the parties’ evaluation of the possible transaction, and shall remain in effect until the possible transaction is consummated, the\nimplicated Confidential Information becomes generally available to the public other than through a violation of the terms of this letter, or two years\nfrom the date of this letter, whichever comes first.\nRecipient understands and agrees that none of Disclosing Party or any of its affiliates, agents, advisors or representatives (i) have made or make any\nrepresentation or warranty, expressed or implied, as to the accuracy or completeness of the Confidential Information or (ii) shall have any liability\nwhatsoever to Recipient or its representatives relating to or resulting from the use of the\n2\nConfidential Information or any errors therein or omissions therefrom.\nThe validity, interpretation and performance of this letter shall be governed by and construed in accordance with the laws of the State of Delaware,\nexcluding any choice of law rules that may direct the application of the laws of any other jurisdiction.\nNo failure or delay by Disclosing party in exercising any right hereunder shall operate as a waiver thereof, nor shall any single or partial waiver\nthereof preclude any other or further exercise thereof or the exercise of any other right hereunder. This letter contains the entire understanding of the\nparties hereto with respect to the subject matter contained herein and supersedes all prior agreements and understandings between the parties with\nrespect to such subject matter. This letter may be amended or waived only by written instrument duly executed by the parties hereto. This letter may\nbe executed in several counterparts, all of which together shall constitute one and the same instrument.\nAdditionally, Cendant agrees that, for a period of two years from the date of this letter, it and its controlled affiliates will not acquire, or assist, advise\nor encourage any other person in acquiring, directly or indirectly, control of the Company or any of the Company’s securities, businesses or assets\nunless the Company shall have consented in advance to such acquisition. Notwithstanding anything contained herein to the contrary, the foregoing\nprohibition shall not apply to the following activities of Cendant and its affiliates: (i) acquisition of up to an aggregate of 2% of any one or more\nclasses of securities of the Company made without the intent of controlling the Company; or (ii) acquisitions made in connection with a transaction\nin which Cendant or an affiliate acquires a previously unaffiliated business entity that owns securities of the Company; or (iii) acquisitions made as a\nresult of a stock split, stock dividend or other recapitalization; or (iv) from making any request of the Company on a confidential basis, without any\npublic disclosure thereof by Cendant and without any intent to compel the Company to make any public disclosure thereof. In the event that the\nCompany enters into or publicly consents to a transaction involving a “Change in Control”, or becomes the target of a publicly announced tender\noffer, subject only to customary conditions, by a third party having adequate financial resources which, if concluded, would involve a “Change in\nControl”, then the restrictions and limitations contained in this paragraph shall not apply, unless and until such proposed “Change in Control”\ntransaction is terminated without being consummated or completed. For purpose of the foregoing, a transaction shall be deemed to involve a\n“Change in Control” if the transaction would involve any of the following: (A) any person or entity (other than the Founding Airlines as a group or\ntheir subsidiaries or affiliates as a group or any of their employee benefit plan or plans or any trustee of or fiduciary with respect to such plan or\nplans when acting in such capacity), or any group acting in concert, shall beneficially own, directly or indirectly, in excess of fifty percent (50%) of\nthe total voting power represented by the then outstanding voting securities of the Company; or (B) upon a merger, combination, consolidation or\nreorganization of the\n3\nCompany, other than a merger, combination, consolidation or reorganization which would result in (1) the voting securities of the Company\noutstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the\nsurviving entity) at least 51% of the voting power represented by the voting securities of the Company or such surviving entity outstanding\nimmediately after such transaction and (2) at least such 51% of voting power continuing to be held in the aggregate by the holders of the voting\nsecurities of the Company immediately prior to such transaction (conditions (1) and (2) are retired to as the “Continuance Conditions”); or (C) all or\nsubstantially all of the assets of the Company are sold or otherwise disposed of, whether in one transaction or a series of transactions, unless the\nContinuance Conditions shall have been satisfied with respect to the purchaser of such assets and such purchaser assumes the Company’s obligations\nunder this Agreement; or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission)\nor consents to vote any of the Company’s voting securities which results in a majority of the directors of the Company being comprised of\nindividuals other than (1) the directors of the Company following the election of the three independent directors, that may occur after the Initial\nPublic Offering or (2) any new director whose election or nomination for election to the Board of Directors was approved or recommended by the\nCompany’s board of directors. As used herein, the term “voting securities” shall mean any securities which vote generally in the election of\ndirectors. The foregoing provision shall become effective when Cendant has received any non-public confidential information pursuant to this letter.\nCendant also agrees that the Company may be entitled to equitable relief; including injunction, in the event of any breach of the provisions of this\nparagraph\nIt is acknowledged and agreed that money damages would not be a sufficient remedy for any breach of this letter and, accordingly, in the event of a\nbreach or threat of a breach of this letter by Recipient hereto, Disclosing Party shall be entitled to specific performance of this letter and an\ninjunction restraining such breach. Nothing herein shall be construed as limiting Disclosing Party’s right to any other remedies available for such\nbreach or threat of breach, including without limitation, the recovery of damages. This covenant shall be deemed to be an agreement independent of\nany other obligation of the parties hereto, and the existence of any claim or cause of action of a party hereto, whether predicated upon this letter or\notherwise, shall not constitute a defense to the enforcement of this covenant by the other party hereto.\nThis letter is for the benefit of the parties hereto, and is enforceable by each of them in accordance with its terms, and no other person or entity shall\nobtain any right under this letter other than the parties hereto.\n4\nVery truly yours,\nOrbitz LLC\nBy: /s/ John J. Park\nName: John J. Park\nTitle: CFO\nAccepted and agreed:\nCendant Corporation\nBy: /s/ Eric J. Bock\nName: Eric J. Bock\nTitle: Executive Vice President, Law\nand Corporate Secretary\n5
907fc26b19e2e664dc7afb701102b75f.pdf	effective_date jurisdiction party term	EX-99.(E)(2) 2 a2227016zex-99_e2.htm EX-99.(E)(2)\nExhibit (e)(2)\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nAGREEMENT (this “Agreement”) is between The Pep Boys – Manny, Moe & Jack (on its own behalf and on behalf of its subsidiaries\nand affiliates, “Pep Boys”) and Icahn Enterprises L.P. (on its own behalf and on behalf of its subsidiaries and controlled affiliates, “Interested\nParty”), dated December 8, 2015.\nWHEREAS, on December 7, 2015, Interested Party provided a proposal to acquire Pep Boys for $15.50 per share in cash (as set forth in Pep\nBoys filing with the Securities and Exchange Commission dated December 7, 2015), which Pep Boys Board of Directors determined on\nDecember 7, 2015, in accordance with its obligations under that certain Agreement and Plan of Merger, dated as of October 26, 2015 (the\n“Bridgestone Agreement”), by and among Pep Boys, Bridgestone Retail Operations, LLC, a Delaware limited liability company (“Parent”), TAJ\nAcquisition Co., a Pennsylvania corporation and wholly-owned subsidiary of Parent, would reasonably be expected to result in a Superior\nProposal (as defined in the Bridgestone Agreement).\nWHEREAS, in accordance with Section 8.3(b) of the Bridgestone Agreement, Pep Boys is permitted to furnish information to or enter into\ndiscussions with Interested Party, subject to compliance with Section 8.3(b) of the Bridgestone Agreement, including the requirements that\n(i) Pep Boys provide notice to Parent of Pep Boys’ intent to furnish information to or enter into discussions with Interested Party (which Pep\nBoys provided to Parent on December 8, 2015), (ii) Pep Boys and the Interested Party enter into an Acceptable Confidentiality Agreement (as\ndefined in the Bridgestone Agreement), and (iii) Pep Boys promptly thereafter (but in any event within 24 hours) provide to Parent a copy of\nsuch Acceptable Confidentiality Agreement.\nWHEREAS, in accordance with Section 8.3 of the Bridgestone Agreement, Pep Boys is required to take certain actions and provide certain\ninformation to Parent with respect to its discussions with Interested Party and any proposed transaction.\nWHEREAS, the parties agree that, in order to assist Interested Party in considering a potential transaction with Pep Boys and in light of Pep\nBoys obligations under the Bridgestone Agreement, the parties desire to enter into this Agreement.\nNOW, THEREFORE, for and in consideration of the promises and mutual obligations contained herein, the parties, intending to be legally\nbound, hereby agree as follows:\n1.\nEach party on its own behalf (in such capacity, a “Receiving Party”) understands that they will receive certain Confidential Information\n(as defined below) from the other party (in such capacity, a “Disclosing Party”). “Confidential Information” includes any of the\nDisclosing Party’s trade secrets, proprietary rights, customer lists, financial, sales, inventory, operations, human resources, real estate\nand marketing data and any other information of the Disclosing Party which is marked “confidential” or “proprietary”\nand/or which the Receiving Party knows or, under all of the circumstances, should reasonably have known should be treated as\nconfidential and any analysis, reports or other information prepared or compiled by the Receiving Party which is based upon or derived\nfrom the information provided by the Disclosing Party. Confidential Information also includes the fact that the parties are considering a\npotential transaction and are engaging in discussions with respect thereto and any of the terms, conditions, or other facts with respect to\nany potential transaction, including the status thereof (the Confidential Information described in this sentence collectively, the\n“Transaction Information”).\n2.\nThe Receiving Party agrees that (a) without the Disclosing Party’s prior written consent, or as otherwise expressly permitted herein, it\nwill not disclose Confidential Information to any third party and (b) it will not use or reproduce Confidential Information, except for the\npurpose of considering a potential transaction involving the Disclosing Party. Notwithstanding anything to the contrary set forth herein,\nPep Boys shall be permitted to disclose the Transaction Information to Parent and take actions as necessary in compliance with its\nobligations under the Bridgestone Agreement.\n3.\nThe Receiving Party agrees that it will limit access to Confidential Information to those of its officers, directors, employees and\nprofessional advisors who have a need to know such Confidential Information in relation to assisting the Receiving Party in considering\na potential transaction with the Disclosing Party and who have been advised of the Receiving Party’s obligation of confidentiality\nhereunder and have been directed by the Receiving Party to comply therewith.\n4.\nThe Receiving Party agrees that upon the written request of the Disclosing Party, it will return to the Disclosing Party (or destroy and\ncertify such destruction to the Disclosing Party) any and all written, electronic or tangible materials (including all copies) of\nConfidential Information in the Receiving Party’s possession. Notwithstanding the foregoing, the Receiving Party shall be permitted to\nretain (a) one copy of the Confidential Information in order to comply with any applicable law, court, regulation or regulatory authority\nor to comply with existing internal document retention policies and (b) electronic copies of the Confidential Information created\npursuant to standard archival or back-up procedures.\n5.\nNotwithstanding the foregoing provisions of this Agreement, information shall not be considered Confidential Information, nor subject\nto the obligations imposed by this Agreement if the Receiving Party demonstrates that the information:\na.\nwas lawfully in the Receiving Party’s possession prior to the date of the disclosure of such information to the Receiving Party;\nb.\nwas generally available to the public prior to the date of disclosure of such information to the Receiving Party;\nc.\nhas become generally available to the public, except as a result of a breach of this Agreement;\n2\nd.\nwas supplied to the Receiving Party without restriction by a third party who was under no obligation to the Disclosing Party to\nmaintain such information in confidence;\ne.\nwas required to be disclosed by law; provided, that, prior to the disclosure of such information, the Receiving Party had\nprovided written notice of such legal requirement to the Disclosing Party for the purpose of allowing the Disclosing Party to\nseek a protective order preventing the disclosure of such information; or\nd.\nwas or is independently developed by the Receiving Party without use of or reference to Confidential Information received\nfrom the Disclosing Party, as evidenced by existing documentation.\n6.\nThe Confidential Information shall be deemed the property of the Disclosing Party and the disclosure of Confidential Information\nhereunder by the Disclosing Party to the Receiving Party shall not be construed as granting to the Receiving Party any license or right of\nownership of any patents, trademarks, copyrights, intellectual property of the Disclosing Party or other Confidential Information. The\nDisclosing Party makes no representation or warranty as to the accuracy or completeness of the Confidential Information and,\naccordingly, shall not have any liability to the Receiving Party resulting from its use of the Confidential Information. Only those\nrepresentations or warranties made expressly in a definitive agreement, when, as, and if it is executed, and subject to such limitations\nand restrictions as may be specified in such agreement, will have any legal effect.\n7.\nAll Confidential Information shall he treated as confidential by the Receiving Party and subject to the restrictions and obligations\ncontained herein for a period following the date of this Agreement until July 31, 2017.\n8.\nNeither this Agreement nor the disclosure any Confidential Information shall (a) constitute or imply any promise or intention of the\nparties to consummate any transaction between them, nor (b) prohibit Pep Boys from discussing any potential business transactions with\nother third parties.\n9.\nIn the event either party determines that it is required by applicable law or regulation (including any stock exchange or trading market\nrequirements) to make any disclosure regarding a transaction involving the other party, such party will so advise the other party and\nshall consult and reasonably cooperate with the other party with respect to the timing, manner, and contents of such disclosure.\n10.\nFor a period from the date of this Agreement until January 31, 2017 (the “Restrictive Period”), the Interested Party agrees not to\n(a) propose to Pep Boys or any other person, any transaction between the Interested Party and Pep Boys and/or its security holders\ninvolving the acquisition of any of Pep Boys’ securities, businesses or assets, or (b) acquire, or assist, advise or encourage any other\nperson to acquire, directly or indirectly, control of Pep Boys or any of Pep Boys’ securities, businesses or assets, unless Pep Boys has\nconsented, in advance and in writing, to such action; provided that the foregoing shall\n3\nnot prohibit the Interested Party from making any offer or proposal that is consistent with, or is intended as supplement to or\nmodification of, any written proposal made by the Interested Party prior to the date of this Agreement and that is directed and disclosed\nsolely to the Chief Executive Officer, the General Counsel or the Board of Directors of Pep Boys. In accordance with the foregoing\nparagraph, Pep Boys hereby consents to the Interested Party having discussions and negotiations with any third-party and entering into\nagreements with any third-party, in each case related to the securities and/or assets of Pep Boys, so long as such third-party had\npreviously received Confidential Information from Pep Boys in connection with Pep Boys’ strategic alternatives review process\nannounced on June 30, 2015.\n11.\nWithout the prior written consent of the other party, until the earlier of (a) the consummation of a transaction between the parties and\n(b) January 31, 2017, each party agrees not to (x) solicit employees of the other party at or above the level of Vice President or those\nmanagement-level employees, in each case whom such party meets as part of the evaluation process or (y) hire or retain any such\nperson. Each party agrees that the restrictions set forth in the immediately preceding sentence shall not apply to (i) any general\nsolicitation for employment not specifically directed at employees of the other party (including by use of search firms), (ii) any\nemployee that has been terminated by the other party prior to commencement of employment discussions, or (iii) responding to (but not\npursuing or hiring) any employee of the other party who contacts such party at his or her own initiative without any prior direct\nsolicitation.\n12.\nThe Receiving Party acknowledges that the Confidential Information is of a special, unique and extraordinary character, and that a\nbreach of this Agreement by the Receiving Party will cause continuing and irreparable injury to the Disclosing Party for which\nmonetary damages would not be an adequate remedy. In the event of a breach of this Agreement by the Receiving Party, in addition to\nany other legal remedies available, the Disclosing Party shall have the right to seek injunctive or other equitable relief without any\nrequirement for the posting of any security or bond.\n13.\nNotwithstanding any provisions to the contrary contained herein: (i) Confidential Information shall not be shared with Federal-Mogul\nHoldings Corporation or its subsidiaries (“FDML”); (ii) FDML shall not be considered a subsidiary or affiliate of Icahn Enterprises L.P.\nfor purposes of this Agreement and shall not be restricted by any of the terms or provisions hereof; and (iii) if the confidentiality\nagreement between Pep Boys and Parent or its affiliates is terminated or amended to provide for any less restrictive terms, then this\nAgreement shall be similarly terminated or amended contemporaneously therewith.\n14.\nThis Agreement constitutes the entire understanding between the parties relative to the protection of information which may be\nexchanged pursuant to this Agreement in connection with the potential transaction contemplated hereunder and supersedes any and all\nprior agreements or understandings between the parties regarding such subject matter. The term of this Agreement (except where\notherwise stated as a shorter term) shall be from the date of this Agreement until July 31, 2017.\n4\n15.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of New York. The parties hereto agree that\nthe sole and exclusive jurisdiction and venue for any litigation arising from or relating to this Agreement or the subject matter hereof\nshall be an appropriate federal or state court located in New York, New York. EACH OF THE PARTIES HEREBY WAIVES ITS\nRIGHT TO A JURY TRIAL IN CONNECTION WITH ANY SUCH LITIGATION.\n15.\nThis Agreement may be executed in counterparts and by facsimile.\n[Signature Page Follows]\n5\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above written.\nICAHN ENTERPRISES L.P.\nTHE PEP BOYS MANNY, MOE & JACK\nIcahn Enterprises G.P. Inc., its general\nBy:\n/s/ Brian D. Zuckerman\npartner\nName: Brian D. Zuckerman\nTitle: SVP — General Counsel & Secretary\nBy:\n/s/ Keith Cozza\nName: Keith Cozza\nTitle:\nPresident and Chief Executive Officer\n[CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT]\n6	EX-99.(E)(2) 2 a2227016zex-99_e2.htm EX-99.(E)(2)\nExhibit (e)(2)\n>\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nAGREEMENT (this “Agreement”) is between The Pep Boys — Manny, Moe & Jack (on its own behalf and on behalf of its subsidiaries\nand affiliates, “Pep Boys™”) and Icahn Enterprises L.P. (on its own behalf and on behalf of its subsidiaries and controlled affiliates, “Interested\nParty”), dated December 8, 2015.\nWHEREAS, on December 7, 2015, Interested Party provided a proposal to acquire Pep Boys for $15.50 per share in cash (as set forth in Pep\nBoys filing with the Securities and Exchange Commission dated December 7, 2015), which Pep Boys Board of Directors determined on\nDecember 7, 2015, in accordance with its obligations under that certain Agreement and Plan of Merger, dated as of October 26, 2015 (the\n“Bridgestone Agreement”), by and among Pep Boys, Bridgestone Retail Operations, LL.C, a Delaware limited liability company (“Parent”), TAJ\nAcquisition Co., a Pennsylvania corporation and wholly-owned subsidiary of Parent, would reasonably be expected to result in a Superior\nProposal (as defined in the Bridgestone Agreement).\nWHEREAS, in accordance with Section 8.3(b) of the Bridgestone Agreement, Pep Boys is permitted to furnish information to or enter into\ndiscussions with Interested Party, subject to compliance with Section 8.3(b) of the Bridgestone Agreement, including the requirements that\n(i) Pep Boys provide notice to Parent of Pep Boys’ intent to furnish information to or enter into discussions with Interested Party (which Pep\nBoys provided to Parent on December 8, 2015), (ii) Pep Boys and the Interested Party enter into an Acceptable Confidentiality Agreement (as\ndefined in the Bridgestone Agreement), and (iii) Pep Boys promptly thereafter (but in any event within 24 hours) provide to Parent a copy of\nsuch Acceptable Confidentiality Agreement.\nWHEREAS, in accordance with Section 8.3 of the Bridgestone Agreement, Pep Boys is required to take certain actions and provide certain\ninformation to Parent with respect to its discussions with Interested Party and any proposed transaction.\nWHEREAS, the parties agree that, in order to assist Interested Party in considering a potential transaction with Pep Boys and in light of Pep\nBoys obligations under the Bridgestone Agreement, the parties desire to enter into this Agreement.\nNOW, THEREFORE, for and in consideration of the promises and mutual obligations contained herein, the parties, intending to be legally\nbound, hereby agree as follows:\n1. Each party on its own behalf (in such capacity, a “Receiving Party”) understands that they will receive certain Confidential Information\n(as defined below) from the other party (in such capacity, a “Disclosing Party”). “Confidential Information” includes any of the\nDisclosing Party’s trade secrets, proprietary rights, customer lists, financial, sales, inventory, operations, human resources, real estate\nand marketing data and any other information of the Disclosing Party which is marked “confidential” or “proprietary”\n \nand/or which the Receiving Party knows or, under all of the circumstances, should reasonably have known should be treated as\nconfidential and any analysis, reports or other information prepared or compiled by the Receiving Party which is based upon or derived\nfrom the information provided by the Disclosing Party. Confidential Information also includes the fact that the parties are considering a\npotential transaction and are engaging in discussions with respect thereto and any of the terms, conditions, or other facts with respect to\nany potential transaction, including the status thereof (the Confidential Information described in this sentence collectively, the\n“Transaction Information”).\n2. The Receiving Party agrees that (a) without the Disclosing Party’s prior written consent, or as otherwise expressly permitted herein, it\nwill not disclose Confidential Information to any third party and (b) it will not use or reproduce Confidential Information, except for the\npurpose of considering a potential transaction involving the Disclosing Party. Notwithstanding anything to the contrary set forth herein,\nPep Boys shall be permitted to disclose the Transaction Information to Parent and take actions as necessary in compliance with its\nobligations under the Bridgestone Agreement.\n3. The Receiving Party agrees that it will limit access to Confidential Information to those of its officers, directors, employees and\nprofessional advisors who have a need to know such Confidential Information in relation to assisting the Receiving Party in considering\na potential transaction with the Disclosing Party and who have been advised of the Receiving Party’s obligation of confidentiality\nhereunder and have been directed by the Receiving Party to comply therewith.\n4. The Receiving Party agrees that upon the written request of the Disclosing Party, it will return to the Disclosing Party (or destroy and\ncertify such destruction to the Disclosing Party) any and all written, electronic or tangible materials (including all copies) of\nConfidential Information in the Receiving Party’s possession. Notwithstanding the foregoing, the Receiving Party shall be permitted to\nretain (a) one copy of the Confidential Information in order to comply with any applicable law, court, regulation or regulatory authority\nor to comply with existing internal document retention policies and (b) electronic copies of the Confidential Information created\npursuant to standard archival or back-up procedures.\n \n10. Notwithstanding the foregoing provisions of this Agreement, information shall not be considered Confidential Information, nor subject\nto the obligations imposed by this Agreement if the Receiving Party demonstrates that the information:\na. was lawfully in the Receiving Party’s possession prior to the date of the disclosure of such information to the Receiving Party;\nb. was generally available to the public prior to the date of disclosure of such information to the Receiving Party;\nC. has become generally available to the public, except as a result of a breach of this Agreement;\n2\nd. was supplied to the Receiving Party without restriction by a third party who was under no obligation to the Disclosing Party to\nmaintain such information in confidence;\ne. was required to be disclosed by law; provided, that, prior to the disclosure of such information, the Receiving Party had\nprovided written notice of such legal requirement to the Disclosing Party for the purpose of allowing the Disclosing Party to\nseek a protective order preventing the disclosure of such information; or\nd. was or is independently developed by the Receiving Party without use of or reference to Confidential Information received\nfrom the Disclosing Party, as evidenced by existing documentation.\nThe Confidential Information shall be deemed the property of the Disclosing Party and the disclosure of Confidential Information\nhereunder by the Disclosing Party to the Receiving Party shall not be construed as granting to the Receiving Party any license or right of\nownership of any patents, trademarks, copyrights, intellectual property of the Disclosing Party or other Confidential Information. The\nDisclosing Party makes no representation or warranty as to the accuracy or completeness of the Confidential Information and,\naccordingly, shall not have any liability to the Receiving Party resulting from its use of the Confidential Information. Only those\nrepresentations or warranties made expressly in a definitive agreement, when, as, and if it is executed, and subject to such limitations\nand restrictions as may be specified in such agreement, will have any legal effect.\nAll Confidential Information shall he treated as confidential by the Receiving Party and subject to the restrictions and obligations\ncontained herein for a period following the date of this Agreement until July 31, 2017.\nNeither this Agreement nor the disclosure any Confidential Information shall (a) constitute or imply any promise or intention of the\nparties to consummate any transaction between them, nor (b) prohibit Pep Boys from discussing any potential business transactions with\nother third parties.\nIn the event either party determines that it is required by applicable law or regulation (including any stock exchange or trading market\nrequirements) to make any disclosure regarding a transaction involving the other party, such party will so advise the other party and\nshall consult and reasonably cooperate with the other party with respect to the timing, manner, and contents of such disclosure.\nFor a period from the date of this Agreement until January 31, 2017 (the “Restrictive Period”), the Interested Party agrees not to\n(a) propose to Pep Boys or any other person, any transaction between the Interested Party and Pep Boys and/or its security holders\ninvolving the acquisition of any of Pep Boys’ securities, businesses or assets, or (b) acquire, or assist, advise or encourage any other\nperson to acquire, directly or indirectly, control of Pep Boys or any of Pep Boys’ securities, businesses or assets, unless Pep Boys has\nconsented, in advance and in writing, to such action; provided that the foregoing shall\n3\n \n11. not prohibit the Interested Party from making any offer or proposal that is consistent with, or is intended as supplement to or\nmodification of, any written proposal made by the Interested Party prior to the date of this Agreement and that is directed and disclosed\nsolely to the Chief Executive Officer, the General Counsel or the Board of Directors of Pep Boys. In accordance with the foregoing\nparagraph, Pep Boys hereby consents to the Interested Party having discussions and negotiations with any third-party and entering into\nagreements with any third-party, in each case related to the securities and/or assets of Pep Boys, so long as such third-party had\npreviously received Confidential Information from Pep Boys in connection with Pep Boys’ strategic alternatives review process\nannounced on June 30, 2015.\nWithout the prior written consent of the other party, until the earlier of (a) the consummation of a transaction between the parties and\n(b) January 31, 2017, each party agrees not to (x) solicit employees of the other party at or above the level of Vice President or those\nmanagement-level employees, in each case whom such party meets as part of the evaluation process or (y) hire or retain any such\nperson. Each party agrees that the restrictions set forth in the immediately preceding sentence shall not apply to (i) any general\nsolicitation for employment not specifically directed at employees of the other party (including by use of search firms), (ii) any\nemployee that has been terminated by the other party prior to commencement of employment discussions, or (iii) responding to (but not\npursuing or hiring) any employee of the other party who contacts such party at his or her own initiative without any prior direct\nsolicitation.\n12.\n13.\n14.\nThe Receiving Party acknowledges that the Confidential Information is of a special, unique and extraordinary character, and that a\nbreach of this Agreement by the Receiving Party will cause continuing and irreparable injury to the Disclosing Party for which\nmonetary damages would not be an adequate remedy. In the event of a breach of this Agreement by the Receiving Party, in addition to\nany other legal remedies available, the Disclosing Party shall have the right to seek injunctive or other equitable relief without any\nrequirement for the posting of any security or bond.\nNotwithstanding any provisions to the contrary contained herein: (i) Confidential Information shall not be shared with Federal-Mogul\nHoldings Corporation or its subsidiaries (“FDML”); (ii) FDML shall not be considered a subsidiary or affiliate of Icahn Enterprises L.P.\nfor purposes of this Agreement and shall not be restricted by any of the terms or provisions hereof; and (iii) if the confidentiality\nagreement between Pep Boys and Parent or its affiliates is terminated or amended to provide for any less restrictive terms, then this\nAgreement shall be similarly terminated or amended contemporaneously therewith.\nThis Agreement constitutes the entire understanding between the parties relative to the protection of information which may be\nexchanged pursuant to this Agreement in connection with the potential transaction contemplated hereunder and supersedes any and all\nprior agreements or understandings between the parties regarding such subject matter. The term of this Agreement (except where\notherwise stated as a shorter term) shall be from the date of this Agreement until July 31, 2017.\n4\n \n15.\n15.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of New York. The parties hereto agree that\nthe sole and exclusive jurisdiction and venue for any litigation arising from or relating to this Agreement or the subject matter hereof\nshall be an appropriate federal or state court located in New York, New York. EACH OF THE PARTIES HEREBY WAIVES ITS\nRIGHT TO A JURY TRIAL IN CONNECTION WITH ANY SUCH LITIGATION.\nThis Agreement may be executed in counterparts and by facsimile.\n[Signature Page Follows]\n5\n \nIN WITNESS WHEREQF, the parties have executed this Agreement as of the date and year first above written. ICAHN ENTERPRISES L.P. THE PEP BOYS MANNY, MOE & JACK\nIcahn Enterprises G.P. Inc., its general By: /s/ Brian D. Zuckerman\npartner Name: Brian D. Zuckerman\nBy:\nName:\nTitle:\nTitle: ~ SVP — General Counsel & Secretary\n/s/ Keith Cozza\nKeith Cozza\nPresident and Chief Executive Officer\n[CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT)]\n6\n	EX-99.(E)(2) 2 a2227016zex-99_e2.htm EX-99.(E)(2)\nExhibit (e)(2)\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nAGREEMENT (this "Agreement") is between The Pep Boys Manny, Moe & Jack (on its own behalf and on behalf of its subsidiaries\nand affiliates, "Pep Boys") and Icahn Enterprises L.P. (on its own behalf and on behalf of its subsidiaries and controlled affiliates, "Interested\nParty"), dated December 8, 2015.\nWHEREAS, on December 7, 2015, Interested Party provided a proposal to acquire Pep Boys for $15.50 per share in cash (as set forth in Pep\nBoys filing with the Securities and Exchange Commission dated December 7, 2015), which Pep Boys Board of Directors determined on\nDecember 7, 2015, in accordance with its obligations under that certain Agreement and Plan of Merger, dated as of October 26, 2015 (the\n"Bridgestone Agreement"), by and among Pep Boys, Bridgestone Retail Operations, LLC, a Delaware limited liability company ("Parent"), TAJ\nAcquisition Co., a Pennsylvania corporation and wholly-owned subsidiary of Parent, would reasonably be expected to result in a Superior\nProposal (as defined in the Bridgestone Agreement).\nWHEREAS, in accordance with Section 8.3(b) of the Bridgestone Agreement, Pep Boys is permitted to furnish information to or enter into\ndiscussions\nwith\nInterested Party, subject to compliance with Section 8.3(b) of the Bridgestone Agreement, including the requirements that\n(i) Pep Boys provide notice to Parent of Pep Boys' intent to furnish information to or enter into discussions with Interested Party (which Pep\nBoys provided to Parent on December 8, 2015), (ii) Pep Boys and the Interested Party enter into an Acceptable Confidentiality Agreement (as\ndefined in the Bridgestone Agreement), and (iii) Pep Boys promptly thereafter (but in any event within 24 hours) provide to Parent a copy of\nsuch Acceptable Confidentiality Agreement.\nWHEREAS, in accordance with Section 8.3 of the Bridgestone Agreement, Pep Boys is required to take certain actions and provide certain\ninformation to Parent with respect to its discussions with Interested Party and any proposed transaction.\nWHEREAS, the parties agree that, in order to assist Interested Party in considering a potential transaction with Pep Boys and in light of Pep\nBoys obligations under the Bridgestone Agreement, the parties desire to enter into this Agreement.\nNOW, THEREFORE, for and in consideration of the promises and mutual obligations contained herein, the parties, intending to be legally\nbound, hereby agree as follows:\n1.\nEach party on its own behalf (in such capacity, a "Receiving Party") understands that they will receive certain Confidential Information\n(as defined below) from the other party (in such capacity, a "Disclosing Party"). "Confidential Information" includes any of the\nDisclosing Party's trade secrets, proprietary rights, customer lists, financial, sales, inventory, operations, human resources, real estate\nand marketing data and any other information of the Disclosing Party which is marked "confidential" or "proprietary"\nand/or which the Receiving Party knows or, under all of the circumstances, should reasonably have known should be treated as\nconfidential and any analysis, reports or other information prepared or compiled by the Receiving Party which is based upon or derived\nfrom the information provided by the Disclosing Party. Confidential Information also includes the fact that the parties are considering a\npotential transaction and are engaging in discussions with respect thereto and any of the terms, conditions, or other facts with respect to\nany potential transaction, including the status thereof (the Confidential Information described in this sentence collectively, the\n"Transaction Information").\n2.\nThe Receiving Party agrees that (a) without the Disclosing Party's prior written consent, or as otherwise expressly permitted herein, it\nwill not disclose Confidential Information to any third party and (b) it will not use or reproduce Confidential Information, except for the\npurpose of considering a potential transaction involving the Disclosing Party. Notwithstanding anything to the contrary set forth herein,\nPep Boys shall be permitted to disclose the Transaction Information to Parent and take actions as necessary in compliance with its\nobligations under the Bridgestone Agreement.\n3.\nThe Receiving Party agrees that it will limit access to Confidential Information to those of its officers, directors, employees and\nprofessional advisors who have a need to know such Confidential Information in relation to assisting the Receiving Party in considering\na potential transaction with the Disclosing Party and who have been advised of the Receiving Party's obligation of confidentiality\nhereunder and have been directed by the Receiving Party to comply therewith.\n4.\nThe Receiving Party agrees that upon the written request of the Disclosing Party, it will return to the Disclosing Party (or destroy and\ncertify such destruction to the Disclosing Party) any and all written, electronic or tangible materials (including all copies) of\nConfidential Information in the Receiving Party's possession. Notwithstanding the foregoing, the Receiving Party shall be permitted to\nretain (a) one copy of the Confidential Information in order to comply with any applicable law, court, regulation or regulatory authority\nor to comply with existing internal document retention policies and (b) electronic copies of the Confidential Information created\npursuant to standard archival or back-up procedures.\n5.\nNotwithstanding the foregoing provisions of this Agreement, information shall not be considered Confidential Information, nor subject\nto the obligations imposed by this Agreement if the Receiving Party demonstrates that the information:\na.\nwas lawfully in the Receiving Party's possession prior to the date of the disclosure of such information to the Receiving Party;\nb.\nwas generally available to the public prior to the date of disclosure of such information to the Receiving Party;\nC.\nhas become generally available to the public, except as a result of a breach of this Agreement;\n2\nd.\nwas supplied to the Receiving Party without restriction by a third party who was under no obligation to the Disclosing Party to\nmaintain such information in confidence;\ne.\nwas required to be disclosed by law; provided, that, prior to the disclosure of such information, the Receiving Party had\nprovided written notice of such legal requirement to the Disclosing Party for the purpose of allowing the Disclosing Party to\nseek a protective order preventing the disclosure of such information; or\nd.\nwas or is independently developed by the Receiving Party without use of or reference to Confidential Information received\nfrom the Disclosing Party, as evidenced by existing documentation.\n6.\nThe Confidential Information shall be deemed the property of the Disclosing Party and the disclosure of Confidential Information\nhereunder by the Disclosing Party to the Receiving Party shall not be construed as granting to the Receiving Party any license or right of\nownership of any patents, trademarks, copyrights, intellectual property of the Disclosing Party or other Confidential Information. The\nDisclosing Party makes no representation or warranty as to the accuracy or completeness of the Confidential Information and,\naccordingly, shall not have any liability to the Receiving Party resulting from its use of the Confidential Information. Only those\nrepresentations or warranties made expressly in a definitive agreement, when, as, and if it is executed, and subject to such limitations\nand restrictions as may be specified in such agreement, will have any legal effect.\n7.\nAll Confidential Information shall he treated as confidential by the Receiving Party and subject to the restrictions and obligations\ncontained herein for a period following the date of this Agreement until July 31, 2017.\n8.\nNeither this Agreement nor the disclosure any Confidential Information shall (a) constitute or imply any promise or intention of the\nparties to consummate any transaction between them, nor (b) prohibit Pep Boys from discussing any potential business transactions with\nother third parties.\n9.\nIn the event either party determines that it is required by applicable law or regulation (including any stock exchange or trading market\nrequirements) to make any disclosure regarding a transaction involving the other party, such party will SO advise the other party and\nshall consult and reasonably cooperate with the other party with respect to the timing, manner, and contents of such disclosure.\n10.\nFor a period from the date of this Agreement until January 31, 2017 (the "Restrictive Period"), the Interested Party agrees not to\n(a) propose to Pep Boys or any other person, any transaction between the Interested Party and Pep Boys and/or its security holders\ninvolving the acquisition of any of Pep Boys' securities, businesses or assets, or (b) acquire, or assist, advise or encourage any other\nperson to acquire, directly or indirectly, control of Pep Boys or any of Pep Boys' securities, businesses or assets, unless Pep Boys has\nconsented, in advance and in writing, to such action; provided that the foregoing shall\n3\nnot prohibit the Interested Party from making any offer or proposal that is consistent with, or is intended as supplement to or\nmodification of, any written proposal made by the Interested Party prior to the date of this Agreement and that is directed and disclosed\nsolely to the Chief Executive Officer, the General Counsel or the Board of Directors of Pep Boys. In accordance with the foregoing\nparagraph, Pep Boys hereby consents to the Interested Party having discussions and negotiations with any third-party and entering into\nagreements with any third-party, in each case related to the securities and/or assets of Pep Boys, SO long as such third-party had\npreviously received Confidential Information from Pep Boys in connection with Pep Boys' strategic alternatives review process\nannounced on June 30, 2015.\n11.\nWithout the prior written consent of the other party, until the earlier of (a) the consummation of a transaction between the parties and\n(b) January 31, 2017, each party agrees not to (x) solicit employees of the other party at or above the level of Vice President or those\nmanagement-level employees, in each case whom such party meets as part of the evaluation process or (y) hire or retain any such\nperson. Each party agrees that the restrictions set forth in the immediately preceding sentence shall not apply to (i) any general\nsolicitation for employment not specifically directed at employees of the other party (including by use of search firms), (ii) any\nemployee that has been terminated by the other party prior to commencement of employment discussions, or (iii) responding to (but not\npursuing or hiring) any employee of the other party who contacts such party at his or her own initiative without any prior direct\nsolicitation.\n12.\nThe Receiving Party acknowledges that the Confidential Information is of a special, unique and extraordinary character, and that\na\nbreach of this Agreement by the Receiving Party will cause continuing and irreparable injury to the Disclosing Party for which\nmonetary damages would not be an adequate remedy. In the event of a breach of this Agreement by the Receiving Party, in addition\nto\nany other legal remedies available, the Disclosing Party shall have the right to seek injunctive or other equitable relief without any\nrequirement for the posting of any security or bond.\n13.\nNotwithstanding any provisions to the contrary contained herein: (i) Confidential Information shall not be shared with Federal-Mogul\nHoldings Corporation or its subsidiaries ("FDML"); (ii) FDML shall not be considered a subsidiary or affiliate of Icahn Enterprises\nL.P.\nfor purposes of this Agreement and shall not be restricted by any of the terms or provisions hereof; and (iii) if the confidentiality\nagreement between Pep Boys and Parent or its affiliates is terminated or amended to provide for any less restrictive terms, then this\nAgreement shall be similarly terminated or amended contemporaneously therewith.\n14.\nThis Agreement constitutes the entire understanding between the parties relative to the protection of information which may be\nexchanged pursuant to this Agreement in connection with the potential transaction contemplated hereunder and supersedes any and all\nprior agreements or understandings between the parties regarding such subject matter. The term of this Agreement (except where\notherwise stated as a shorter term) shall be from the date of this Agreement until July 31, 2017.\n4\n15.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of New York. The parties hereto agree that\nthe sole and exclusive jurisdiction and venue for any litigation arising from or relating to this Agreement or the subject matter hereof\nshall be an appropriate federal or state court located in New York, New York. EACH OF THE PARTIES HEREBY WAIVES ITS\nRIGHT TO A JURY TRIAL IN CONNECTION WITH ANY SUCH LITIGATION.\n15.\nThis Agreement may be executed in counterparts and by facsimile.\n[Signature Page Follows]\n5\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above written.\nICAHN ENTERPRISES L.P.\nTHE PEP BOYS MANNY, MOE & JACK\nIcahn Enterprises G.P. Inc., its general\nBy:\n/s/ Brian D. Zuckerman\npartner\nName:\nBrian D. Zuckerman\nTitle:\nSVP - General Counsel & Secretary\nBy:\n/s/ Keith Cozza\nName:\nKeith Cozza\nTitle:\nPresident and Chief Executive Officer\n[CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT]\n6	EX-99.(E)(2) 2 a2227016zex-99_e2.htm EX-99.(E)(2)\nExhibit (e)(2)\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nAGREEMENT (this “Agreement”) is between The Pep Boys – Manny, Moe & Jack (on its own behalf and on behalf of its subsidiaries\nand affiliates, “Pep Boys”) and Icahn Enterprises L.P. (on its own behalf and on behalf of its subsidiaries and controlled affiliates, “Interested\nParty”), dated December 8, 2015.\nWHEREAS, on December 7, 2015, Interested Party provided a proposal to acquire Pep Boys for $15.50 per share in cash (as set forth in Pep\nBoys filing with the Securities and Exchange Commission dated December 7, 2015), which Pep Boys Board of Directors determined on\nDecember 7, 2015, in accordance with its obligations under that certain Agreement and Plan of Merger, dated as of October 26, 2015 (the\n“Bridgestone Agreement”), by and among Pep Boys, Bridgestone Retail Operations, LLC, a Delaware limited liability company (“Parent”), TAJ\nAcquisition Co., a Pennsylvania corporation and wholly-owned subsidiary of Parent, would reasonably be expected to result in a Superior\nProposal (as defined in the Bridgestone Agreement).\nWHEREAS, in accordance with Section 8.3(b) of the Bridgestone Agreement, Pep Boys is permitted to furnish information to or enter into\ndiscussions with Interested Party, subject to compliance with Section 8.3(b) of the Bridgestone Agreement, including the requirements that\n(i) Pep Boys provide notice to Parent of Pep Boys’ intent to furnish information to or enter into discussions with Interested Party (which Pep\nBoys provided to Parent on December 8, 2015), (ii) Pep Boys and the Interested Party enter into an Acceptable Confidentiality Agreement (as\ndefined in the Bridgestone Agreement), and (iii) Pep Boys promptly thereafter (but in any event within 24 hours) provide to Parent a copy of\nsuch Acceptable Confidentiality Agreement.\nWHEREAS, in accordance with Section 8.3 of the Bridgestone Agreement, Pep Boys is required to take certain actions and provide certain\ninformation to Parent with respect to its discussions with Interested Party and any proposed transaction.\nWHEREAS, the parties agree that, in order to assist Interested Party in considering a potential transaction with Pep Boys and in light of Pep\nBoys obligations under the Bridgestone Agreement, the parties desire to enter into this Agreement.\nNOW, THEREFORE, for and in consideration of the promises and mutual obligations contained herein, the parties, intending to be legally\nbound, hereby agree as follows:\n1.\nEach party on its own behalf (in such capacity, a “Receiving Party”) understands that they will receive certain Confidential Information\n(as defined below) from the other party (in such capacity, a “Disclosing Party”). “Confidential Information” includes any of the\nDisclosing Party’s trade secrets, proprietary rights, customer lists, financial, sales, inventory, operations, human resources, real estate\nand marketing data and any other information of the Disclosing Party which is marked “confidential” or “proprietary”\nand/or which the Receiving Party knows or, under all of the circumstances, should reasonably have known should be treated as\nconfidential and any analysis, reports or other information prepared or compiled by the Receiving Party which is based upon or derived\nfrom the information provided by the Disclosing Party. Confidential Information also includes the fact that the parties are considering a\npotential transaction and are engaging in discussions with respect thereto and any of the terms, conditions, or other facts with respect to\nany potential transaction, including the status thereof (the Confidential Information described in this sentence collectively, the\n“Transaction Information”).\n2.\nThe Receiving Party agrees that (a) without the Disclosing Party’s prior written consent, or as otherwise expressly permitted herein, it\nwill not disclose Confidential Information to any third party and (b) it will not use or reproduce Confidential Information, except for the\npurpose of considering a potential transaction involving the Disclosing Party. Notwithstanding anything to the contrary set forth herein,\nPep Boys shall be permitted to disclose the Transaction Information to Parent and take actions as necessary in compliance with its\nobligations under the Bridgestone Agreement.\n3.\nThe Receiving Party agrees that it will limit access to Confidential Information to those of its officers, directors, employees and\nprofessional advisors who have a need to know such Confidential Information in relation to assisting the Receiving Party in considering\na potential transaction with the Disclosing Party and who have been advised of the Receiving Party’s obligation of confidentiality\nhereunder and have been directed by the Receiving Party to comply therewith.\n4.\nThe Receiving Party agrees that upon the written request of the Disclosing Party, it will return to the Disclosing Party (or destroy and\ncertify such destruction to the Disclosing Party) any and all written, electronic or tangible materials (including all copies) of\nConfidential Information in the Receiving Party’s possession. Notwithstanding the foregoing, the Receiving Party shall be permitted to\nretain (a) one copy of the Confidential Information in order to comply with any applicable law, court, regulation or regulatory authority\nor to comply with existing internal document retention policies and (b) electronic copies of the Confidential Information created\npursuant to standard archival or back-up procedures.\n5.\nNotwithstanding the foregoing provisions of this Agreement, information shall not be considered Confidential Information, nor subject\nto the obligations imposed by this Agreement if the Receiving Party demonstrates that the information:\na.\nwas lawfully in the Receiving Party’s possession prior to the date of the disclosure of such information to the Receiving Party;\nb.\nwas generally available to the public prior to the date of disclosure of such information to the Receiving Party;\nc.\nhas become generally available to the public, except as a result of a breach of this Agreement;\n2\nd.\nwas supplied to the Receiving Party without restriction by a third party who was under no obligation to the Disclosing Party to\nmaintain such information in confidence;\ne.\nwas required to be disclosed by law; provided, that, prior to the disclosure of such information, the Receiving Party had\nprovided written notice of such legal requirement to the Disclosing Party for the purpose of allowing the Disclosing Party to\nseek a protective order preventing the disclosure of such information; or\nd.\nwas or is independently developed by the Receiving Party without use of or reference to Confidential Information received\nfrom the Disclosing Party, as evidenced by existing documentation.\n6.\nThe Confidential Information shall be deemed the property of the Disclosing Party and the disclosure of Confidential Information\nhereunder by the Disclosing Party to the Receiving Party shall not be construed as granting to the Receiving Party any license or right of\nownership of any patents, trademarks, copyrights, intellectual property of the Disclosing Party or other Confidential Information. The\nDisclosing Party makes no representation or warranty as to the accuracy or completeness of the Confidential Information and,\naccordingly, shall not have any liability to the Receiving Party resulting from its use of the Confidential Information. Only those\nrepresentations or warranties made expressly in a definitive agreement, when, as, and if it is executed, and subject to such limitations\nand restrictions as may be specified in such agreement, will have any legal effect.\n7.\nAll Confidential Information shall he treated as confidential by the Receiving Party and subject to the restrictions and obligations\ncontained herein for a period following the date of this Agreement until July 31, 2017.\n8.\nNeither this Agreement nor the disclosure any Confidential Information shall (a) constitute or imply any promise or intention of the\nparties to consummate any transaction between them, nor (b) prohibit Pep Boys from discussing any potential business transactions with\nother third parties.\n9.\nIn the event either party determines that it is required by applicable law or regulation (including any stock exchange or trading market\nrequirements) to make any disclosure regarding a transaction involving the other party, such party will so advise the other party and\nshall consult and reasonably cooperate with the other party with respect to the timing, manner, and contents of such disclosure.\n10.\nFor a period from the date of this Agreement until January 31, 2017 (the “Restrictive Period”), the Interested Party agrees not to\n(a) propose to Pep Boys or any other person, any transaction between the Interested Party and Pep Boys and/or its security holders\ninvolving the acquisition of any of Pep Boys’ securities, businesses or assets, or (b) acquire, or assist, advise or encourage any other\nperson to acquire, directly or indirectly, control of Pep Boys or any of Pep Boys’ securities, businesses or assets, unless Pep Boys has\nconsented, in advance and in writing, to such action; provided that the foregoing shall\n3\nnot prohibit the Interested Party from making any offer or proposal that is consistent with, or is intended as supplement to or\nmodification of, any written proposal made by the Interested Party prior to the date of this Agreement and that is directed and disclosed\nsolely to the Chief Executive Officer, the General Counsel or the Board of Directors of Pep Boys. In accordance with the foregoing\nparagraph, Pep Boys hereby consents to the Interested Party having discussions and negotiations with any third-party and entering into\nagreements with any third-party, in each case related to the securities and/or assets of Pep Boys, so long as such third-party had\npreviously received Confidential Information from Pep Boys in connection with Pep Boys’ strategic alternatives review process\nannounced on June 30, 2015.\n11.\nWithout the prior written consent of the other party, until the earlier of (a) the consummation of a transaction between the parties and\n(b) January 31, 2017, each party agrees not to (x) solicit employees of the other party at or above the level of Vice President or those\nmanagement-level employees, in each case whom such party meets as part of the evaluation process or (y) hire or retain any such\nperson. Each party agrees that the restrictions set forth in the immediately preceding sentence shall not apply to (i) any general\nsolicitation for employment not specifically directed at employees of the other party (including by use of search firms), (ii) any\nemployee that has been terminated by the other party prior to commencement of employment discussions, or (iii) responding to (but not\npursuing or hiring) any employee of the other party who contacts such party at his or her own initiative without any prior direct\nsolicitation.\n12.\nThe Receiving Party acknowledges that the Confidential Information is of a special, unique and extraordinary character, and that a\nbreach of this Agreement by the Receiving Party will cause continuing and irreparable injury to the Disclosing Party for which\nmonetary damages would not be an adequate remedy. In the event of a breach of this Agreement by the Receiving Party, in addition to\nany other legal remedies available, the Disclosing Party shall have the right to seek injunctive or other equitable relief without any\nrequirement for the posting of any security or bond.\n13.\nNotwithstanding any provisions to the contrary contained herein: (i) Confidential Information shall not be shared with Federal-Mogul\nHoldings Corporation or its subsidiaries (“FDML”); (ii) FDML shall not be considered a subsidiary or affiliate of Icahn Enterprises L.P.\nfor purposes of this Agreement and shall not be restricted by any of the terms or provisions hereof; and (iii) if the confidentiality\nagreement between Pep Boys and Parent or its affiliates is terminated or amended to provide for any less restrictive terms, then this\nAgreement shall be similarly terminated or amended contemporaneously therewith.\n14.\nThis Agreement constitutes the entire understanding between the parties relative to the protection of information which may be\nexchanged pursuant to this Agreement in connection with the potential transaction contemplated hereunder and supersedes any and all\nprior agreements or understandings between the parties regarding such subject matter. The term of this Agreement (except where\notherwise stated as a shorter term) shall be from the date of this Agreement until July 31, 2017.\n4\n15.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of New York. The parties hereto agree that\nthe sole and exclusive jurisdiction and venue for any litigation arising from or relating to this Agreement or the subject matter hereof\nshall be an appropriate federal or state court located in New York, New York. EACH OF THE PARTIES HEREBY WAIVES ITS\nRIGHT TO A JURY TRIAL IN CONNECTION WITH ANY SUCH LITIGATION.\n15.\nThis Agreement may be executed in counterparts and by facsimile.\n[Signature Page Follows]\n5\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above written.\nICAHN ENTERPRISES L.P.\nTHE PEP BOYS MANNY, MOE & JACK\nIcahn Enterprises G.P. Inc., its general\nBy:\n/s/ Brian D. Zuckerman\npartner\nName: Brian D. Zuckerman\nTitle: SVP — General Counsel & Secretary\nBy:\n/s/ Keith Cozza\nName: Keith Cozza\nTitle:\nPresident and Chief Executive Officer\n[CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT]\n6
90f2ce5e18de44f2910f05b365f2b13e.pdf	jurisdiction party term	EX-10 5 ex101licenseagr.txt ADDENDUM D Non-Disclosure Agreement MUTUAL NONDISCLOSURE AGREEMENT On this ____ day of ________________,\n_____,\n, a with offices at , and Genomics Integrated Wellness Systems, Inc., a Colorado corporation with offices at 21034 E Portland Pl. , Aurora, CO 80016,\nagree as follows: 1. In connection with discussions relating to a business opportunity of mutual interest and in the performance of any agreement between the\nparties (the "Opportunity"), the parties may find it beneficial to disclose to each other certain Confidential Information (as defined below). A party disclosing\nConfidential Information (as defined below) is a "Disclosing Party" and a party receiving Confidential Information (as defined below) is a "Receiving Party". As\nused in this Agreement, "Confidential Information" means all confidential or proprietary information in tangible or intangible form (including, without limitation,\nfinancial information, computer programs, code, software, technical drawings, algorithms, protocols, printing specifications, technical expertise, know-how,\nformulas, processes, ideas, inventions (whether patentable or not), schematics, reports, ticket test results, charts, graphs, electrical measurement readings, and\ntechnical, business and product development plans and strategies); information disclosed in circumstances of confidence; or information which would be\nunderstood by like parties exercising reasonable business judgment at the time of disclosure to be proprietary which is disclosed to or otherwise acquired by the\nReceiving Party, but does not include information that: (a) is already known to the Receiving Party prior to the date of disclosure; (b) is or becomes generally\nknown to the public domain through no violation of this Agreement by the Receiving Party; (c) is received from an unaffiliated third party without an obligation of\nnondisclosure or breach of an obligation of confidentiality to the Disclosing Party; or (d) is independently developed by the Receiving Party by personnel who\nhave not had access to the Confidential Information. 2 . With respect to Confidential Information of the Disclosing Party, the Receiving Party shall: (a) hold the\nConfidential Information in confidence and protect it in accordance with the same degree of care with which it protects its own Confidential Information of like\nimportance which it does not wish to disclose, but in no event less than reasonable care; (b) use the Confidential Information only in connection with the\ndiscussions or the performance of any agreement between the parties or as may be expressly approved by the Disclosing Party in writing; (c) except in the\nnormal anticipated use thereof, not copy or otherwise duplicate the Confidential Information, or knowingly allow anyone else to copy or otherwise duplicate any of\nthe Confidential Information then under its control without the Disclosing Party's prior written approval. The Receiving Party shall not remove any confidential,\nproprietary or similar notice from the Confidential Information; (d) restrict disclosure of the Confidential Information solely to those employees with a need to know,\nand not disclose it to any other parties; (e) require that all employees given access to the Confidential Information agree to maintain the confidentiality thereof,\nand otherwise comply with the provisions hereof; (f) perform no reverse engineering or any other unauthorized testing or analysis upon such Confidential\nInformation; and (g) upon request of the Disclosing Party, immediately return any and all Confidential Information to the Disclosing Party or provide certification of\nits destruction by an officer of the Receiving Party. 3 . A Receiving Party may disclose Confidential Information of a Disclosing Party if, and to the extent that, in\nthe opinion of counsel, such disclosure is required by law, in which case the Receiving Party shall promptly notify the Disclosing Party of the reasons for and\nnature of the proposed disclosure so that the Disclosing Party may take such action as it deems necessary. 4. Each party shall be entitled at any time and without\nnotice to the other to negotiate, disclose and otherwise deal in any manner and for any purpose with third parties regarding its own Confidential Information. 5 .\nNothing in this Agreement shall require or obligate, or be deemed to require or obligate, either party in any manner to engage in any business relationship at all\nwith the other party. Nothing in this Agreement grants, or shall be deemed to grant, to either party any authority or agency of kind or manner to act in any way in\nthe other party's name or behalf, and neither party shall hold itself out to be acting in such manner or to possess such authority. 6 . All Confidential Information will\nremain the exclusive property of the Disclosing Party. Nothing contained in this Agreement shall be construed as granting or conferring, whether by sale, license\nor otherwise, to a Receiving Party any right, title or interest in any Confidential Information disclosed, nor in any of the patents, trademarks or copyrights of the\nDisclosing Party. 7 . The provisions hereof shall inure to and be binding upon the successors and assigns of the parties hereto; provided, however that no\ndisclosure of Confidential Information may be made to any successor or assign of a Receiving Party without the written consent of the Disclosing Party. 8 . This\nAgreement shall be governed by the laws of the State of Colorado and any legal action arising from an alleged violation of this Agreement shall be conducted in\nthe United States District Court for the District of Colorado or the state court of Jefferson County, Colorado. 9. Except for the obligations of Paragraph 2 of this\nAgreement that shall survive for five (5) years from the date hereof and with respect to Confidential Information deemed a trade secret at law, for so long as such\ninformation remains a trade secret beyond said five (5) year period, all obligations under this Agreement shall terminate upon the expiration of two (2) years from\nthe date hereof. 10. This document represents the full and complete agreement of the parties with respect to the use and confidentiality of the Confidential\nInformation and supersedes all prior communications, agreements or proposals. If any provision of this Agreement is found to be illegal or unenforceable, the\nother provisions shall remain effective and enforceable to the greatest extent permitted by law. 11. Each party understands and agrees that its breach or\nthreatened breach of this Agreement will cause irreparable injury to the other party and that money damages will not provide an adequate remedy for such breach\nor threatened breach, and both parties hereby agree that, in the event of such a breach or threatened breach, the non breaching party will also be entitled, without\nthe requirement of posting a bond or other security, to equitable relief, including injunctive relief and specific performance. COMPANY NAME GENOMICS\nINTEGRATED WELLNESS SYSTEMS, INC. By: __________________________ By: ______________________ Name: _______________________ Name:\n_______________________\nTitle: ________________________ Title: __________________	EX-lO 5 exlOllicenseagr.txtADDE N DU M D Non-Disclosure Agreement MUTUAL NO N DISC LOSU RE AG R E E M E NT On this ____\n_____ , , a with offices at, and Genomics Integrated Wellness Systems, Inc., a Colorado corporation with offices at21034 E Portland Pl., Aurora, CO 80016,\nagree as follows: 1. In connection with discussions relating to a business opportunity of mutual interest and in the performance of any agreement between the\nparties (the "Opportunity"), the parties may find it beneficial to disclose to each other certain Confidential Information (as defined below). A party disclosing\nConfidential Information (as defined below) is a "Disclosing Party" and a party receiving Confidential Information (as defined below) is a "Receiving Party". As\nused in this Agreement, "Confidential Information" means all confidential or proprietary information in tangible or intangible form (including, without limitation,\nfinancial information, computer programs, code, software, technical drawings, algorithms, protocols, printing specifications, technical expertise, know-how,\nformulas, processes, ideas, inventions (whether patentable or not), schematics, repors, ticket test results, charts, graphs, electrical measurement readings, and\ntechnical, business and productdevelopment plans and strategies); information disclosed in circumstances of confidence; or information which would be\nunderstood by like parties exercising reasonable business judgment atthe time of disclosure to be proprietary which is disclosed to or othenNise acquired by the\nReceiving Party, butdoes not include information that: (a) is already known to the Receiving Party prior to the date ofdisclosure; (b) is or becomes generally\nknown to the public domain through no violation of this Agreement by the Receiving Party; (c) is received from an unaffiliated third party without an obligation of\nnondisclosure or breach of an obligation ofconfidentiality to the Disclosing Party; or (d) is independently developed by the Receiving Party by personnel who\nhave nothad access to the Confidential Information. 2. With respectto Confidential Information ofthe Disclosing Party, the Receiving Party shall: (a) hold the\nConfidential Information in confidence and protect it in accordance with the same degree ofcare with which it protects is own Confidential Information of like\nimportance which it does notwish to disclose, but in no event less than reasonable care; (b) use the Confidential Information only in connection with the\ndiscussions or the performance of any agreement between the parties or as may be expressly approved by the Disclosing Party in writing; (c) except in the\nnormal anticipated use thereof, not copy or othenNise duplicate the Confidential Information, or knowingly allow anyone else to copy or othenNise duplicate any of\nthe Confidential Information then under is control without the Disclosing Party's prior written approval. The Receiving Party shall not remove any confidential,\nproprietary or similar notice from the Confidential Information; (d) restrictdisclosure of the Confidential Information solely to those employees with a need to know,\nand not disclose it to any other parties; (e) require that all employees given access to the Confidential Information agree to maintain the confidentiality thereof,\nand otherwise comply with the provisions hereof; (fi perform no reverse engineering or any other unauthorized testing or analysis upon such Confidential\nInformation; and (g) upon requestofthe Disclosing Party, immediately return any and all Confidential Information to the Disclosing Party or provide certification of\nis destruction by an officer ofthe Receiving Party. 3. A Receiving Party may disclose Confidential Information of a Disclosing Party if, and to the extentthat, in\nthe opinion ofcounsel, such disclosure is required by law, in which case the Receiving Party shall promptly notify the Disclosing Party ofthe reasons for and\nnature of the proposed disclosure so that the Disclosing Party may take such action as it deems necessary. 4. Each party shall be entitled at any time and without\nnotice to the other to negotiate, disclose and otherwise deal in any manner and for any purpose with third parties regarding is own Confidential Information. 5.\nNothing in this Agreementshall require or obligate, or be deemed to require or obligate, either party in any manner to engage in any business relationship at all\nwith the other party. Nothing in this Agreementgrans, or shall be deemed to grant, to either party any authority or agency of kind or manner to act in any way in\nthe other party's name or behalf, and neither party shall hold iselfout to be acting in such manner or to possess such authority. 6. All Confidential Information will\nremain the exclusive property of the Disclosing Party. Nothing contained in this Agreementshall be construed as granting or conferring, whether by sale, license\nor othenNise, to a Receiving Party any right, title or interest in any Confidential Information disclosed, nor in any of the patents, trademarks or copyrights ofthe\nDisclosing Party. 7. The provisions hereofshall inure to and be binding upon the successors and assigns ofthe parties hereto; provided, however thatno\ndisclosure of Confidential Information may be made to any successor or assign of a Receiving Party withoutthe written consentofthe Disclosing Party. 8. This\nAgreementshall be governed by the laws of the State ofColorado and any legal action arising from an alleged violation of this Agreement shall be conducted in\nthe United States DistrictCourtfor the District of Colorado or the state courtofJ efferson County, Colorado. 9. Except for the obligations of Paragraph 2 ofthis\nAgreement thatshall sun/ive for five (5) years from the date hereof and with respectto Confidential Information deemed a trade secret at law, for so long as such\ninformation remains a trade secret beyond said five (5) year period, all obligations under this Agreementshall terminate upon the expiration oftwo (2) years from\nthe date hereof. 10. This document represents the full and complete agreement of the parties with respectto the use and confidentiality of the Confidential\nInformation and supersedes all prior communications, agreemens or proposals. If any provision of this Agreement is found to be illegal or unenforceable, the\nother provisions shall remain effective and enforceable to the greatestextent permitted by law. 11. Each party understands and agrees that is breach or\nthreatened breach of this Agreement will cause irreparable injury to the other party and that money damages will not provide an adequate remedy for such breach\nor threatened breach, and both parties hereby agree that, in the event ofsuch a breach or threatened breach, the non breaching party will also be entitled, without\nthe requirementof posting a bond or other security, to equitable relief, including injunctive relief and specific performance. COMPANY NAME GE NOMICS\nINTEGRATED WELLNESS SYSTEMS,|NC.By: __________________________ By: ______________________ Name: _______________________ Name:\nTitle: Title:\nday of ,	EX-10 5 exl0llicenseagr.txt ADDENDUM D Non-Disclosure Agreement MUTUAL NONDISCLOSURE AGREEMENT On this\nday of\na with offices at, and Genomics Integrated Wellness ystems, Inc., a Colorado corporation with offices at 21034 E Portland PI., Aurora, Co 80016,\nagree as follows: 1. In connection with discussions relating to a business opportunity of mutual interest and in the performance of any agreement between the\nparties (the "Opportunity"), the parties may find it beneficial to disclose to each other certain Confidential Information (as defined below). A party disclosing\nConfidential Information (as defined below is a "Disclosing Party" and a party receiving Confidential Information (as defined below) is a "Receiving Party".\nAs\nused in this Agreement, "Confidential Information" means all confidential or proprietary information in tangible or intangible form (including, without limitation,\nfinancial information, computer programs, code, software, technical drawings, algorithms, protocols, printing specifications, technical expertise, know-how,\nformulas, processes, ideas, inventions (whether patentable or not), schematics, reports, ticket test results, charts, graphs, electrical measurement readings, and\ntechnical, business and product development plans and strategies); information disclosed in circumstances of confidence; or information which would be\nunderstood by like parties exercising reasonable business judgment at the time of disclosure to be proprietary which is disclosed to or otherwise acquired by the\nReceiving Party, but does not include information that: (a) is already known to the eceiving P arty prior to the date of disclosure; (b) is or becomes generally\nknown to the public domain through no violation of this Agreement by the Receiving Party; (c) is received from an unaffiliated third party without an obligation of\nnondisclosure or breach of an obligation of confidentiality to the Disclosing Party; or (d) is independently developed by the Receiving arty by personnel who\nhave not had access to the Confidential Information. 2. With respect to Confidential Information of the Disclosing Party, the R eceiving Party shall: (a) hold the\nConfidential Information in confidence and protect it in accordance with the same degree of care with which it protects its own Confidential Information of\nlike\nimportance which it does not wish to disclose, but in no event less than reasonable care; (b) use the Confidential Information only in connection with the\ndiscussions or the performance of any agreement between the parties or as may be expressly approved by the Disclosing Party in writing; (c) except in the\nnormal anticipated use thereof, not copy or otherwise duplicate the Confidential Information, or knowingly allow anyone else to copy or otherwise duplicate any of\nthe Confidential Information then under its control without the Disclosing arty's prior written approval. The Receiving Party shall not remove any confidential,\nproprietary or similar notice from the Confidential Information; (d) restrict disclosure of the Confidential Information solely to those employees with a need to know,\nand not disclose it to any other parties; (e) require that all employees given access to the Confidential Information agree to maintain the confidentiality thereof,\nand otherwise comply with the provisions hereof; (f) perform no reverse engineering or any other unauthorized testing or analysis upon such Confidential\nInformation; and (g) upon request of the Disclosing Party, immediately return any and all Confidential Information to the Disclosing Party or provide certification of\nits destruction by an officer of the R eceiving arty. 3. A eceiving arty may disclose Confidential Information of a Disclosing Party if, and to the extent that, in\nthe opinion of counsel, such disclosure is required by law, in which case the Receiving Party shall promptly notify the Disclosing Party of the reasons for and\nnature of the proposed disclosure so that the Disclosing Party may take such action as it deems necessary. 4. E ach party shall be entitled at any time and without\nnotice to the other to negotiate, disclose and otherwise deal in any manner and for any purpose with third parties regarding its own Confidential Information. 5.\nNothing in this Agreement shall require or obligate, or be deemed to require or obligate, either party in any manner to engage in any business relationship at all\nwith the other party. Nothing in this Agreement grants, or shall be deemed to grant, to either party any authority or agency of kind or manner to act in any way in\nthe other party's name or behalf, and neither party shall hold itself out to be acting in such manner or to possess such authority. 6. All Confidential Information will\nremain the exclusive property of the Disclosing Party. Nothing contained in this Agreement shal be construed as granting or conferring, whether by sale, license\nor\notherwise, to a Receiving Party any right, title or interest in any Confidential Information disclosed, nor in any of the patents, trademarks or copyrights of the\nDisclosing Party. 7. The provisions hereof shall inure to and be binding upon the successors and assigns of the parties hereto; provided, however that no\ndisclosure of Confidential Information may be made to any successor or assign of a Receiving arty without the written consent of the Disclosing Party. 8. This\nAgreement shal be governed by the laws of the State of Colorado and any legal action arising from an alleged violation of this Agreement shal be conducted in\nthe United States District Court for the District of Colorado or the state court of efferson County, Colorado. 9. Except for the obligations of Paragraph 2 of this\nAgreement that shall survive for five (5) years from the date hereof and with respect to Confidential Information deemed a trade secret at law, for so long as such\ninformation remains a trade secret beyond said five (5) year period, all obligations under this Agreement shall terminate upon the expiration of two (2) years from\nthe date hereof. 10. This document represents the full and complete agreement of the parties with respect to the use and confidentiality of the Confidential\nInformation and supersedes all prior communications, agreements or proposals. If any provision of this Agreement is found to be illegal or unenforceable, the\nother provisions shal remain effective and enforceable to the greatest extent permitted by law. 11. Each party understands and agrees that its breach or\nthreatened breach of this Agreement wil cause irreparable injury to the other party and that money damages will not provide an adequate remedy for such breach\nor threatened breach, and both parties hereby agree that, in the event of such a breach or threatened breach, the non breaching party will also be entitled, without\nthe requirement of posting a bond or other security, to equitable relief, including injunctive relief and specific performance. COMPANY NAME GENOMICS\nINTEGRATED WELLNESS SYSTEMS, INC. By:\nBy:\nName:\nName:\nTitle:\nTitle:	EX-10 5 ex101licenseagr.txt ADDENDUM D Non-Disclosure Agreement MUTUAL NONDISCLOSURE AGREEMENT On this ____ day of ________________,\n_____,\n, a with offices at , and Genomics Integrated Wellness Systems, Inc., a Colorado corporation with offices at 21034 E Portland Pl. , Aurora, CO 80016,\nagree as follows: 1. In connection with discussions relating to a business opportunity of mutual interest and in the performance of any agreement between the\nparties (the "Opportunity"), the parties may find it beneficial to disclose to each other certain Confidential Information (as defined below). A party disclosing\nConfidential Information (as defined below) is a "Disclosing Party" and a party receiving Confidential Information (as defined below) is a "Receiving Party". As\nused in this Agreement, "Confidential Information" means all confidential or proprietary information in tangible or intangible form (including, without limitation,\nfinancial information, computer programs, code, software, technical drawings, algorithms, protocols, printing specifications, technical expertise, know-how,\nformulas, processes, ideas, inventions (whether patentable or not), schematics, reports, ticket test results, charts, graphs, electrical measurement readings, and\ntechnical, business and product development plans and strategies); information disclosed in circumstances of confidence; or information which would be\nunderstood by like parties exercising reasonable business judgment at the time of disclosure to be proprietary which is disclosed to or otherwise acquired by the\nReceiving Party, but does not include information that: (a) is already known to the Receiving Party prior to the date of disclosure; (b) is or becomes generally\nknown to the public domain through no violation of this Agreement by the Receiving Party; (c) is received from an unaffiliated third party without an obligation of\nnondisclosure or breach of an obligation of confidentiality to the Disclosing Party; or (d) is independently developed by the Receiving Party by personnel who\nhave not had access to the Confidential Information. 2 . With respect to Confidential Information of the Disclosing Party, the Receiving Party shall: (a) hold the\nConfidential Information in confidence and protect it in accordance with the same degree of care with which it protects its own Confidential Information of like\nimportance which it does not wish to disclose, but in no event less than reasonable care; (b) use the Confidential Information only in connection with the\ndiscussions or the performance of any agreement between the parties or as may be expressly approved by the Disclosing Party in writing; (c) except in the\nnormal anticipated use thereof, not copy or otherwise duplicate the Confidential Information, or knowingly allow anyone else to copy or otherwise duplicate any of\nthe Confidential Information then under its control without the Disclosing Party's prior written approval. The Receiving Party shall not remove any confidential,\nproprietary or similar notice from the Confidential Information; (d) restrict disclosure of the Confidential Information solely to those employees with a need to know,\nand not disclose it to any other parties; (e) require that all employees given access to the Confidential Information agree to maintain the confidentiality thereof,\nand otherwise comply with the provisions hereof; (f) perform no reverse engineering or any other unauthorized testing or analysis upon such Confidential\nInformation; and (g) upon request of the Disclosing Party, immediately return any and all Confidential Information to the Disclosing Party or provide certification of\nits destruction by an officer of the Receiving Party. 3 . A Receiving Party may disclose Confidential Information of a Disclosing Party if, and to the extent that, in\nthe opinion of counsel, such disclosure is required by law, in which case the Receiving Party shall promptly notify the Disclosing Party of the reasons for and\nnature of the proposed disclosure so that the Disclosing Party may take such action as it deems necessary. 4. Each party shall be entitled at any time and without\nnotice to the other to negotiate, disclose and otherwise deal in any manner and for any purpose with third parties regarding its own Confidential Information. 5 .\nNothing in this Agreement shall require or obligate, or be deemed to require or obligate, either party in any manner to engage in any business relationship at all\nwith the other party. Nothing in this Agreement grants, or shall be deemed to grant, to either party any authority or agency of kind or manner to act in any way in\nthe other party's name or behalf, and neither party shall hold itself out to be acting in such manner or to possess such authority. 6 . All Confidential Information will\nremain the exclusive property of the Disclosing Party. Nothing contained in this Agreement shall be construed as granting or conferring, whether by sale, license\nor otherwise, to a Receiving Party any right, title or interest in any Confidential Information disclosed, nor in any of the patents, trademarks or copyrights of the\nDisclosing Party. 7 . The provisions hereof shall inure to and be binding upon the successors and assigns of the parties hereto; provided, however that no\ndisclosure of Confidential Information may be made to any successor or assign of a Receiving Party without the written consent of the Disclosing Party. 8 . This\nAgreement shall be governed by the laws of the State of Colorado and any legal action arising from an alleged violation of this Agreement shall be conducted in\nthe United States District Court for the District of Colorado or the state court of Jefferson County, Colorado. 9. Except for the obligations of Paragraph 2 of this\nAgreement that shall survive for five (5) years from the date hereof and with respect to Confidential Information deemed a trade secret at law, for so long as such\ninformation remains a trade secret beyond said five (5) year period, all obligations under this Agreement shall terminate upon the expiration of two (2) years from\nthe date hereof. 10. This document represents the full and complete agreement of the parties with respect to the use and confidentiality of the Confidential\nInformation and supersedes all prior communications, agreements or proposals. If any provision of this Agreement is found to be illegal or unenforceable, the\nother provisions shall remain effective and enforceable to the greatest extent permitted by law. 11. Each party understands and agrees that its breach or\nthreatened breach of this Agreement will cause irreparable injury to the other party and that money damages will not provide an adequate remedy for such breach\nor threatened breach, and both parties hereby agree that, in the event of such a breach or threatened breach, the non breaching party will also be entitled, without\nthe requirement of posting a bond or other security, to equitable relief, including injunctive relief and specific performance. COMPANY NAME GENOMICS\nINTEGRATED WELLNESS SYSTEMS, INC. By: __________________________ By: ______________________ Name: _______________________ Name:\n_______________________\nTitle: ________________________ Title: __________________
9101f93224e7b92bb085724aea21cf6f.pdf	effective_date jurisdiction party term	EX-99.(E)(5) 5 d309035dex99e5.htm EXHIBIT (E)(5)\nExhibit (e)(5)\nMUTUAL NON-DISCLOSURE AGREEMENT\nEffective Date: July 26, 2016\nApplied Micro Circuits Corporation, a Delaware corporation with\nits principal place of business located at 4555 Great America\nParkway, Santa Clara, California 95054, USA, on behalf of itself and\nits Affiliates (collectively, “APM”), and MACOM Technology\nSolutions Inc., with its principal place of business located at 100\nChelmsford Street, Lowell, MA 01851, on behalf of itself and its\nAffiliates (collectively, “Company”), hereby enter into this Mutual\nNon-Disclosure Agreement (“Agreement”), as follows:\n1. Definitions:\n“Affiliate” of a Party means an entity that, directly or indirectly,\ncontrols, is controlled by, or is under common control with that Party,\nwhere “control” means ownership or control of more than fifty\npercent (50%) of the voting power of securities or interests in the\nentity controlled.\n“Confidential Information” means non-public, confidential\nand/or proprietary information disclosed by a Party to the other Party\n(or to the other Party’s approved contractors, agents and advisors),\nincluding but not limited to business, marketing, and technical plans;\nstrategies; employees; financial information, analyses, and forecasts;\nintellectual property and/or the subject matter thereof; information\nconcerning existing and future products and services; and the\nexistence of this Agreement and the proposed potential business\nrelationship or transaction between the Parties to which this\nAgreement relates.\n“Discloser” means a Party disclosing Confidential Information\npursuant to this Agreement.\n“Party” means either APM or Company.\n“Purpose” means the evaluation of a potential business\ntransaction between the Parties and the undertaking of such\ntransaction.\n“Recipient” means a Party receiving Confidential Information\npursuant to this Agreement, including its directors, employees,\ncontractors, agents, and advisors.\n2. Term: This Agreement shall commence upon the Effective Date\nand shall remain in effect for one (1) year thereafter, unless\nterminated earlier (“Term”). Recipient shall not disclose, and shall\nprotect against disclosure of, Confidential Information from the date\nof disclosure through three (3) years after the end of the Term\n(“Confidentiality Period”). Any Confidential Information disclosed\nprior to the Effective Date shall be accorded the same protection as\nConfidential Information disclosed during the Term. Either Party may\nterminate this Agreement at any time without cause upon written\nnotice to the other Party; however, all obligations of confidentiality\nand related covenants shall survive termination or expiration of this\nAgreement for the duration of the Confidentiality Period.\n3. Use of Confidential Information: Recipient shall have the right\nto make use of Confidential Information solely during the Term and\nsolely for the Purpose, to the extent that this Agreement is not\nsuperseded by a subsequent agreement that governs the exchange of\nConfidential Information. Notwithstanding the foregoing, Company\nwill not, without the prior written consent of APM, discuss with any\nthird party the potential opportunity to participate with Company in\n4. Care of Confidential Information: Recipient shall protect\nConfidential Information by using the same degree of care to prevent\nthe unauthorized use, dissemination, or publication of such\nConfidential Information as Recipient uses to protect its own\nconfidential information of a like nature, but no less than a\nreasonable degree of care. A Party will not give its directors,\nemployees, contractors, agents, and advisors access to Confidential\nInformation received from a Discloser, or approve any such persons\nfor receipt of Confidential Information directly from the Discloser,\nuntil such Party has ensured that the Recipient is aware of this\nAgreement and is under an obligation to honor it.\n5. Information That Is Covered: Recipient shall have an obligation\nto protect only that Confidential Information which either (a) is\nmarked, identified as, or otherwise acknowledged to be confidential\nat the time of disclosure to Recipient, or (b) should reasonably be\nexpected to be considered confidential or proprietary based upon the\nnature of the information and the circumstances of disclosure,\nincluding but not limited to information that may come to Recipient’s\nknowledge as a result of visiting any of the facilities of Discloser.\nConfidential Information shall be disclosed to or shared among other\nRecipients solely on a need to know basis. Copies of Confidential\nInformation shall only be made by Recipient as necessary for the\nPurpose, and any copies made by Recipient of any Confidential\nInformation shall be labeled or identified as confidential, proprietary,\nor the like, and shall be subject to all terms and provisions of this\nAgreement.\n6. Exclusions: Recipient shall have no duty to protect against\ndisclosure of information that: (a) was rightfully in Recipient’s\npossession before receipt from Discloser, as substantiated by written\nrecords or documentation of Recipient; (b) is or becomes a matter of\npublic knowledge through no fault of Recipient; (c) is rightfully\nreceived by Recipient from a third person without a duty of\nconfidentiality; (d) is independently developed by Recipient, as\nsubstantiated by written records or other documentation of Recipient;\n(e) is disclosed under requirement of law or court order, provided that\nRecipient (i) shall only disclose that portion of the Confidential\nInformation that is legally required; (ii) shall have made a reasonable\neffort to prevent, obtain relief from and/or obtain protective orders\nwith respect to such disclosure requirements, and (iii) shall have\npromptly notified Discloser of the existence of any such disclosure\nrequirement so as to afford Discloser adequate opportunity to do\nlikewise; or (f) is disclosed by Recipient with Discloser ’s prior\nwritten approval.\n7. Warranty: Each Discloser warrants that it has the right to make\nthe disclosures made pursuant to this Agreement. NO OTHER\nWARRANTIES ARE MADE BY EITHER PARTY UNDER\nTHIS AGREEMENT. ANY INFORMATION EXCHANGED\nUNDER THIS AGREEMENT IS PROVIDED “AS IS”.\n8. Rights: Confidential Information is and shall remain the property\nof Discloser along with all associated intellectual property rights\nowned by Discloser. Neither the disclosure of Confidential\nInformation, the expiration of the duty to protect from disclosure, or\nanything else contained in this Agreement (including, without\nlimitation, the right to use Confidential Information as set forth\nabove) shall be construed as granting or conferring any right or\nlicense under any patent, trade secret, copyright, or other intellectual\nproperty right of any Discloser. Neither Party shall reverse engineer,\ndisassemble, or decompile any prototypes, software or other tangible\nobjects which constitute or embody the other Party’s Confidential\nInformation.\n1\nconnection with implementing the Purpose or solicit from any third\nparty any equity or debt financing assistance relating to the Purpose.\nUpon the written request of Discloser, Recipient shall promptly\nreturn all Confidential Information received from Discloser, together\nwith all copies, or, if requested by Discloser, certify that all such\nConfidential Information, together with all copies, has been\ndestroyed.\nThe Parties agree to the terms and conditions of this Mutual Non-Disclosure Agreement effective as of the Effective Date first above written.\nApplied Micro Circuits Corporation\nMACOM Technology Solutions Inc.\nBy:\n/s/ Paul L. Alpern\nBy:\n/s/ Karen Hanlon\nPrinted Name: Paul L. Alpern\nPrinted Name: Karen Hanlon\nTitle:\nAssociate General Counsel\nTitle:\nContracts Manager\nDate:\nJuly 27, 2016\nDate:\n7-27-2016\n2\n9. Material Non-Public Information: By executing and delivering\nthis Agreement, each Party confirms to the other that it is aware and\nthat its representatives have been advised that the Federal and state\nsecurities laws of the United States prohibit any person who\npossesses material, non-public information about a company from\npurchasing or selling securities of such company.\n10. Additional Covenants: In consideration of and as a condition to\nthe exchange of Confidential Information hereunder, the Parties agree\nthat each Recipient and its Affiliates will not, without the prior\nwritten consent of Discloser, for a period of 12 months from the\nEffective Date, directly or indirectly solicit or cause to be solicited\nfor employment any current employee of Discloser or any of its\nAffiliates of whom Recipient first learned of pursuant to disclosures\nmade under, or activity conducted pursuant to, this Agreement;\nprovided, however, that the foregoing restriction will not apply or\nrestrict any covered employees from applying or responding to any\nsolicitation directed at the public in general, nor will it prohibit any\nRecipient from considering or hiring for employment persons who\nrespond to a solicitation directed at the public in general.\nMiscellaneous\n11. This Agreement, and the discussions and activities undertaken\npursuant to this Agreement, impose no obligation on either Party to\nenter into any transaction or to purchase, sell, license, transfer, or\notherwise dispose of any technology, services, products, stock, or\nassets. Either Party may terminate discussions and negotiations at any\ntime and for any reason. Until a written definitive agreement\nconcerning any transaction has been executed and delivered, neither\nParty will have any liability to the other Party with respect to any\nproposed transaction, other than a breach of the confidentiality\nobligations and other covenants contained herein, whether by virtue\nof this Agreement or by any other written or oral expression with\nrespect to the transaction or otherwise.\n12. APM and Company are independent contractors, and nothing\ncontained in this Agreement shall be construed to constitute APM\nand Company as partners, joint venturers, co-owners, or otherwise as\nparticipants in a joint or common undertaking.\n13. This Agreement shall not be assignable or transferable without\nthe prior written consent of the other Party, which shall not be\nunreasonably withheld or delayed. A waiver of a failure to comply\nhereunder shall be effected only in writing, signed by the waiving\nParty, and shall not constitute a waiver of any other failures to\ncomply hereunder. All additions or modifications to this Agreement\nmust be made in writing and must be signed by authorized\nrepresentatives of both Parties.\n14. The Parties expressly agree that due to the unique nature of each\nDiscloser’s Confidential Information, monetary damages may be\ninadequate to compensate Discloser for any breach by Recipient of\nits covenants and agreements set forth in this Agreement.\nAccordingly, each Party acknowledges and agrees that any such\nviolation or threatened violation may cause irreparable injury to\nDiscloser and that, in addition to any other remedies that may be\navailable, in law, in equity, or otherwise, Discloser shall be entitled to\nseek injunctive relief against the threatened breach of this Agreement\nor the continuation of any such breach by Recipient, without the\nnecessity of proving actual damages.\n15. Each Recipient will comply with all applicable U.S. government\nexport and import laws and regulations. Further, each Recipient\nagrees that unless authorized by applicable government license or\nregulation, including but not limited to any U.S. authorization,\nRecipient will not directly or indirectly export or re-export, at any\ntime, any Confidential Information or technical information,\ntechnology, software, or other commodity furnished or developed\nunder this Agreement, to any prohibited country (including release of\nsuch Confidential Information or technical information, technology,\nsoftware, or other commodity to nationals, wherever they may be\nlocated, of any prohibited country) as specified in applicable U.S.\nexport, embargo, and sanctions regulations. This Section will survive\ntermination or expiration of this Agreement.\n16. Notices are deemed effective (a) upon delivery, if delivered by\nhand or via email or fax, or, (b) the earlier of five (5) days after the\ndate of sending to or the date of receipt by the persons named below\nand signing on behalf of each Party, if sent via receipted courier or\ncertified (or its equivalent) mail return receipt requested. This\nAgreement may be executed in two or more counterparts, each of\nwhich shall be deemed an original and all of which together shall\nconstitute one instrument. Facsimile or emailed copies of this\nAgreement and the signatures thereon shall be treated as originals.\n17. This Agreement is made under and shall be governed by and\nconstrued in accordance with the laws of the State of California,\nUSA, without giving effect to its principles regarding conflicts of\nlaw, and any disputes arising out of this Agreement shall be settled\nunder California law.\n18. This Agreement is the product of both of the Parties hereto, and\nconstitutes the entire agreement between the Parties relating to the\nprotection of Confidential Information exchanged hereunder, and\nsupersedes all prior written and oral communications and\nnegotiations of the Parties with regard to the protection of such\nConfidential Information.	EX-99.(E)(5) 5 d309035dex99e5.htm EXHIBIT (E)(5)\nExhibit (e)(5)\nMUTUAL NON-DISCLOSURE AGREEMENT Effective Date: July 26, 2016\nApplied Micro Circuits Corporation, a Delaware corporation with\nits principal place of business located at 4555 Great America\nParkway, Santa Clara, California 95054, USA, on behalf of itself and\nits Affiliates (collectively, “APM”), and MACOM Technology\nSelutions Inc., with its principal place of business located at 100\nChelmsford Street, Lowell, MA 01851, on behalf of itself and its\nAffiliates (collectively, “Company”), hereby enter into this Mutual\nNon-Disclosure Agreement (“Agreement”), as follows:\n1. Definitions:\n“Affiliate” of a Party means an entity that, directly or indirectly,\ncontrols, is controlled by, or is under common control with that Party,\nwhere “control” means ownership or control of more than fifty\npercent (50%) of the voting power of securities or interests in the\nentity controlled.\n“Confidential Information” means non-public, confidential\nand/or proprietary information disclosed by a Party to the other Party\n(or to the other Party’s approved contractors, agents and advisors),\nincluding but not limited to business, marketing, and technical plans;\nstrategies; employees; financial information, analyses, and forecasts;\nintellectual property and/or the subject matter thereof; information\nconcerning existing and future products and services; and the\nexistence of this Agreement and the proposed potential business\nrelationship or transaction between the Parties to which this\nAgreement relates.\n“Discloser” means a Party disclosing Confidential Information\npursuant to this Agreement.\n“Party” means either APM or Company.\n“Purpose” means the evaluation of a potential business\ntransaction between the Parties and the undertaking of such\ntransaction.\n“Recipient” means a Party receiving Confidential Information\npursuant to this Agreement, including its directors, employees,\ncontractors, agents, and advisors.\n2. Term: This Agreement shall commence upon the Effective Date\nand shall remain in effect for one (1) year thereafter, unless\nterminated earlier (“Term”). Recipient shall not disclose, and shall\nprotect against disclosure of, Confidential Information from the date\nof disclosure through three (3) years after the end of the Term\n(“Confidentiality Period”). Any Confidential Information disclosed\nprior to the Effective Date shall be accorded the same protection as\nConfidential Information disclosed during the Term. Either Party may\nterminate this Agreement at any time without cause upon written\nnotice to the other Party; however, all obligations of confidentiality\nand related covenants shall survive termination or expiration of this\nAgreement for the duration of the Confidentiality Period.\n3. Use of Confidential Information: Recipient shall have the right\nto make use of Confidential Information solely during the Term and\nsolely for the Purpose, to the extent that this Agreement is not\nsuperseded by a subsequent agreement that governs the exchange of\nConfidential Information. Notwithstanding the foregoing, Company\nwill not, without the prior written consent of APM, discuss with any\nthird party the potential opportunity to participate with Company in\n4. Care of Confidential Information: Recipient shall protect\nConfidential Information by using the same degree of care to prevent\nthe unauthorized use, dissemination, or publication of such\nConfidential Information as Recipient uses to protect its own\nconfidential information of a like nature, but no less than a\nreasonable degree of care. A Party will not give its directors,\nemployees, contractors, agents, and advisors access to Confidential\nInformation received from a Discloser, or approve any such persons\nfor receipt of Confidential Information directly from the Discloser,\nuntil such Party has ensured that the Recipient is aware of this\nAgreement and is under an obligation to honor it.\n5. Information That Is Covered: Recipient shall have an obligation\nto protect only that Confidential Information which either (a) is\nmarked, identified as, or otherwise acknowledged to be confidential\nat the time of disclosure to Recipient, or (b) should reasonably be\nexpected to be considered confidential or proprietary based upon the\nnature of the information and the circumstances of disclosure,\nincluding but not limited to information that may come to Recipient’s\nknowledge as a result of visiting any of the facilities of Discloser.\nConfidential Information shall be disclosed to or shared among other\nRecipients solely on a need to know basis. Copies of Confidential\nInformation shall only be made by Recipient as necessary for the\nPurpose, and any copies made by Recipient of any Confidential\nInformation shall be labeled or identified as confidential, proprietary,\nor the like, and shall be subject to all terms and provisions of this\nAgreement.\n6. Exclusions: Recipient shall have no duty to protect against\ndisclosure of information that: (a) was rightfully in Recipient’s\npossession before receipt from Discloser, as substantiated by written\nrecords or documentation of Recipient; (b) is or becomes a matter of\npublic knowledge through no fault of Recipient; (c) is rightfully\nreceived by Recipient from a third person without a duty of\nconfidentiality; (d) is independently developed by Recipient, as\nsubstantiated by written records or other documentation of Recipient;\n(e) is disclosed under requirement of law or court order, provided that\nRecipient (i) shall only disclose that portion of the Confidential\nInformation that is legally required; (ii) shall have made a reasonable\neffort to prevent, obtain relief from and/or obtain protective orders\nwith respect to such disclosure requirements, and (iii) shall have\npromptly notified Discloser of the existence of any such disclosure\nrequirement so as to afford Discloser adequate opportunity to do\nlikewise; or (f) is disclosed by Recipient with Discloser’s prior\nwritten approval.\n7. Warranty: Each Discloser warrants that it has the right to make\nthe disclosures made pursuant to this Agreement. NO OTHER\nWARRANTIES ARE MADE BY EITHER PARTY UNDER\nTHIS AGREEMENT. ANY INFORMATION EXCHANGED\nUNDER THIS AGREEMENT IS PROVIDED “AS IS”.\n8. Rights: Confidential Information is and shall remain the property\nof Discloser along with all associated intellectual property rights\nowned by Discloser. Neither the disclosure of Confidential\nInformation, the expiration of the duty to protect from disclosure, or\nanything else contained in this Agreement (including, without\nlimitation, the right to use Confidential Information as set forth\nabove) shall be construed as granting or conferring any right or\nlicense under any patent, trade secret, copyright, or other intellectual\nproperty right of any Discloser. Neither Party shall reverse engineer,\ndisassemble, or decompile any prototypes, software or other tangible\nobjects which constitute or embody the other Party’s Confidential\nInformation.\nconnection with implementing the Purpose or solicit from any third\nparty any equity or debt financing assistance relating to the Purpose.\nUpon the written request of Discloser, Recipient shall promptly\nreturn all Confidential Information received from Discloser, together\nwith all copies, or, if requested by Discloser, certify that all such\nConfidential Information, together with all copies, has been\ndestroyed.\n9. Material Non-Public Information: By executing and delivering\nthis Agreement, each Party confirms to the other that it is aware and\nthat its representatives have been advised that the Federal and state\nsecurities laws of the United States prohibit any person who\npossesses material, non-public information about a company from\npurchasing or selling securities of such company.\n10. Additional Covenants: In consideration of and as a condition to\nthe exchange of Confidential Information hereunder, the Parties agree\nthat each Recipient and its Affiliates will not, without the prior\nwritten consent of Discloser, for a period of 12 months from the\nEffective Date, directly or indirectly solicit or cause to be solicited\nfor employment any current employee of Discloser or any of its\nAffiliates of whom Recipient first learned of pursuant to disclosures\nmade under, or activity conducted pursuant to, this Agreement;\nprovided, however, that the foregoing restriction will not apply or\nrestrict any covered employees from applying or responding to any\nsolicitation directed at the public in general, nor will it prohibit any\nRecipient from considering or hiring for employment persons who\nrespond to a solicitation directed at the public in general.\nMiscellaneous\n11. This Agreement, and the discussions and activities undertaken\npursuant to this Agreement, impose no obligation on either Party to\nenter into any transaction or to purchase, sell, license, transfer, or\notherwise dispose of any technology, services, products, stock, or\nassets. Either Party may terminate discussions and negotiations at any\ntime and for any reason. Until a written definitive agreement\nconcerning any transaction has been executed and delivered, neither\nParty will have any liability to the other Party with respect to any\nproposed transaction, other than a breach of the confidentiality\nobligations and other covenants contained herein, whether by virtue\nof this Agreement or by any other written or oral expression with\nrespect to the transaction or otherwise.\n12. APM and Company are independent contractors, and nothing\ncontained in this Agreement shall be construed to constitute APM\nand Company as partners, joint venturers, co-owners, or otherwise as\nparticipants in a joint or common undertaking.\n13. This Agreement shall not be assignable or transferable without\nthe prior written consent of the other Party, which shall not be\nunreasonably withheld or delayed. A waiver of a failure to comply\nhereunder shall be effected only in writing, signed by the waiving\nParty, and shall not constitute a waiver of any other failures to\ncomply hereunder. All additions or modifications to this Agreement\nmust be made in writing and must be signed by authorized\nrepresentatives of both Parties.\n14. The Parties expressly agree that due to the unique nature of each\nDiscloser’s Confidential Information, monetary damages may be\ninadequate to compensate Discloser for any breach by Recipient of\nits covenants and agreements set forth in this Agreement.\nAccordingly, each Party acknowledges and agrees that any such\nviolation or threatened violation may cause irreparable injury to\nDiscloser and that, in addition to any other remedies that may be\navailable, in law, in equity, or otherwise, Discloser shall be entitled to\nseek injunctive relief against the threatened breach of this Agreement\nor the continuation of any such breach by Recipient, without the\nnecessity of proving actual damages.\n15. Each Recipient will comply with all applicable U.S. government\nexport and import laws and regulations. Further, each Recipient\nagrees that unless authorized by applicable government license or\nregulation, including but not limited to any U.S. authorization,\nRecipient will not directly or indirectly export or re-export, at any\ntime, any Confidential Information or technical information,\ntechnology, software, or other commodity furnished or developed\nunder this Agreement, to any prohibited country (including release of\nsuch Confidential Information or technical information, technology,\nsoftware, or other commodity to nationals, wherever they may be\nlocated, of any prohibited country) as specified in applicable U.S.\nexport, embargo, and sanctions regulations. This Section will survive\ntermination or expiration of this Agreement.\n16. Notices are deemed effective (a) upon delivery, if delivered by\nhand or via email or fax, or, (b) the earlier of five (5) days after the\ndate of sending to or the date of receipt by the persons named below\nand signing on behalf of each Party, if sent via receipted courier or\ncertified (or its equivalent) mail return receipt requested. This\nAgreement may be executed in two or more counterparts, each of\nwhich shall be deemed an original and all of which together shall\nconstitute one instrument. Facsimile or emailed copies of this\nAgreement and the signatures thereon shall be treated as originals.\n17. This Agreement is made under and shall be governed by and\nconstrued in accordance with the laws of the State of California,\nUSA, without giving effect to its principles regarding conflicts of\nlaw, and any disputes arising out of this Agreement shall be settled\nunder California law.\n18. This Agreement is the product of both of the Parties hereto, and\nconstitutes the entire agreement between the Parties relating to the\nprotection of Confidential Information exchanged hereunder, and\nsupersedes all prior written and oral communications and\nnegotiations of the Parties with regard to the protection of such\nConfidential Information.\nThe Parties agree to the terms and conditions of this Mutual Non-Disclosure Agreement effective as of the Effective Date first above written. Applied Micro Circuits Corporation\nBy: /s/ Paul L. Alpern\nPrinted Name: Paul L. Alpern\nTitle: Associate General Counsel\nDate: July 27, 2016\nMACOM Technology Selutions Inc.\nBy: /s/ Karen Hanlon\nPrinted Name: Karen Hanlon\nTitle: Contracts Manager\nDate: 7-27-2016	EX-99.(E)(5) 5 d309035dex99e5.htn EXHIBIT (E)(5)\nExhibit (e)(5)\nMUTUAL NON-DISCLOSURE AGREEMENT\nEffective Date: July 26, 2016\n4. Care of Confidential Information: Recipient shall protect\nConfidential Information by using the same degree of care to prevent\nApplied Micro Circuits Corporation, a Delaware corporation with\nthe unauthorized use, dissemination, or publication of such\nits principal place of business located at 4555 Great America\nConfidential Information as Recipient uses to protect its own\nParkway, Santa Clara, California 95054, USA, on behalf of itself and\nconfidential information of a like nature, but no less than a\nits Affiliates (collectively, "APM"), and MACOM Technology\nreasonable degree of care. A Party will not give its directors,\nSolutions Inc., with its principal place of business located at 100\nemployees, contractors, agents, and advisors access to Confidentia\nChelmsford Street, Lowell, MA 01851, on behalf of itself and its\nInformation received from a Discloser, or approve any such persons\nAffiliates (collectively, "Company"), hereby enter into this Mutual\nfor receipt of Confidential Information directly from the Discloser,\nNon-Disclosure Agreement ("Agreement"), as follows:\nuntil such Party has ensured that the Recipient is aware of this\nAgreement and is under an obligation to honor it.\n1. Definitions:\n5. Information That Is Covered: Recipient shall have an obligation\n"Affiliate" of a Party means an entity that, directly or indirectly,\nto protect only that Confidential Information which either (a) is\ncontrols, is controlled by, or is under common control with that Party,\nmarked, identified as, or otherwise acknowledged to be confidentia\nwhere "control" means ownership or control of more than fifty\nat the time of disclosure to Recipient, or (b) should reasonably be\npercent (50%) of the voting power of securities or interests in the\nexpected to be considered confidential or proprietary based upon the\nentity controlled.\nnature of the information and the circumstances of disclosure,\nincluding but not limited to information that may come to Recipient's\n"Confidential Information" means non-public, confidential\nknowledge as a result of visiting any of the facilities of Discloser.\nand/or proprietary information disclosed by a Party to the other Party\nConfidential Information shall be disclosed to or shared among other\n(or to the other Party's approved contractors, agents and advisors),\nRecipients solely on a need to know basis. Copies of Confidential\nincluding but not limited to business, marketing, and technical plans;\nInformation shal only be made by Recipient as necessary for the\nstrategies; employees; financial information, analyses, and forecasts;\nPurpose, and any copies made by Recipient of any Confidential\nintellectual property and/or the subject matter thereof; information\nInformation shall be labeled or identified as confidential, proprietary,\nconcerning existing and future products and services; and the\nor the like, and shall be subject to all terms and provisions of this\nexistence of this Agreement and the proposed potential business\nAgreement\nrelationship or transaction between the Parties to which this\nAgreement relates.\n6. Exclusions: Recipient shall have no duty to protect against\ndisclosure of information that: (a) was rightfully in Recipient's\n"Discloser" means a Party disclosing Confidential Information\npossession before receipt from Discloser, as substantiated by written\npursuant to this Agreement.\nrecords or documentation of Recipient; (b) is or becomes a matter of\npublic knowledge through no fault of Recipient; (c) is rightfully\n"Party" means either APM or Company.\nreceived by Recipient from a third person without a duty of\nconfidentiality; (d) is independently developed by Recipient, as\n"Purpose" means the evaluation of a potential business\nsubstantiated by written records or other documentation of Recipient;\ntransaction between the Parties and the undertaking of such\n(e) is disclosed under requirement of law or court order, provided that\ntransaction.\nRecipient (i) shall only disclose that portion of the Confidential\nInformation that is legally required; (ii) shall have made a reasonable\n"Recipient" means a Party receiving Confidential Information\neffort to prevent, obtain relief from and/or obtain protective orders\npursuant to this Agreement, including its directors, employees,\nwith respect to such disclosure requirements, and (iii) shall have\ncontractors, agents, and advisors.\npromptly notified Discloser of the existence of any such disclosure\nrequirement so as to afford Discloser adequate opportunity to do\n2. Term: This Agreement shall commence upon the Effective Date\nlikewise; or (f) is disclosed by Recipient with Discloser's prior\nand shall remain in effect for one (1) year thereafter, unless\nwritten approval.\nterminated earlier ("Term"). Recipient shall not disclose, and shall\nprotect against disclosure of, Confidential Information from the date\n7. Warranty: Each Discloser warrants that it has the right to make\nof disclosure through three (3) years after the end of the Term\nthe disclosures made pursuant to this Agreement. NO OTHER\n("Confidentiality Period") Any Confidentia Information disclosed\nWARRANTIES ARE MADE BY EITHER PARTY UNDER\nprior to the Effective Date shall be accorded the same protection as\nTHIS AGREEMENT. ANY INFORMATION EXCHANGED\nConfidentia Information disclosed during the Term. Either Party may\nUNDER THIS AGREEMENT IS PROVIDED "AS IS".\nterminate this Agreement at any time without cause upon written\nnotice to the other Party; however, all obligations of confidentiality\n8. Rights: Confidential Information is and shall remain the property\nand related covenants shall survive termination or expiration of this\nof Discloser along with all associated intellectual property rights\nAgreement for the duration of the Confidentiality Period.\nowned by Discloser. Neither the disclosure of Confidential\nInformation, the expiration of the duty to protect from disclosure, or\n3. Use of Confidential Information: Recipient shall have the right\nanything else contained in this Agreement (including, without\nto make use of Confidential Information solely during the Term and\nlimitation, the right to use Confidential Information as set forth\nsolely for the Purpose, to the extent that this Agreement is not\nabove) shall be construed as granting or conferring any right or\nsuperseded by a subsequent agreement that governs the exchange of\nlicense under any patent, trade secret, copyright, or other intellectual\nConfidential Information. Notwithstanding the foregoing, Company\nproperty right of any Discloser. Neither Party shall reverse engineer,\nwill not, without the prior written consent of APM, discuss with any\ndisassemble, or decompile any prototypes, software or other tangible\nthird party the potential opportunity to participate with Company in\nobjects which constitute or embody the other Party's Confidential\nInformation.\nconnection with implementing the Purpose or solicit from any third\nparty any equity or debt financing assistance relating to the Purpose.\nUpon the written request of Discloser, Recipient shall promptly\nreturn all Confidential Information received from Discloser, together\nwith all copies, or, if requested by Discloser, certify that all such\nConfidential Information, together with all copies, has been\ndestroyed.\n1\n9. Material Non-Public Information: By executing and delivering\n14. The Parties expressly agree that due to the unique nature of each\nthis Agreement, each Party confirms to the other that it is aware and\nDiscloser's Confidential Information, monetary damages may be\nthat its representatives have been advised that the Federal and state\ninadequate to compensate Discloser for any breach by Recipient of\nsecurities laws of the United States prohibit any person who\nits covenants and agreements set forth in this Agreement.\npossesses material, non-public information about a company from\nAccordingly, each Party acknowledges and agrees that any such\npurchasing or selling securities of such company.\nviolation or threatened violation may cause irreparable injury to\nDiscloser and that, in addition to any other remedies that may be\n10. Additional Covenants: In consideration of and as a condition to\navailable, in law, in equity, or otherwise, Discloser shall be entitled to\nthe exchange of Confidential Information hereunder, the Parties agree\nseek injunctive relief against the threatened breach of this Agreement\nthat each Recipient and its Affiliates will not, without the prior\nor the continuation of any such breach by Recipient, without the\nwritten consent of Discloser, for a period of 12 months from the\nnecessity of proving actual damages.\nEffective Date, directly or indirectly solicit or cause to be solicited\nfor employment any current employee of Discloser or any of its\n15. Each Recipient will comply with all applicable U.S. government\nAffiliates of whom Recipient first learned of pursuant to disclosures\nexport and import laws and regulations. Further, each Recipient\nmade under, or activity conducted pursuant to, this Agreement;\nagrees that unless authorized by applicable government license or\nprovided, however, that the foregoing restriction will not apply or\nregulation, including but not limited to any U.S. authorization,\nrestrict any covered employees from applying or responding to any\nRecipient will not directly or indirectly export or re-export, at any\nsolicitation directed at the public in general, nor will it prohibit any\ntime, any Confidential Information or technical information,\nRecipient from considering or hiring for employment persons who\ntechnology, software, or other commodity furnished or developed\nrespond to a solicitation directed at the public in general.\nunder this Agreement, to any prohibited country (including release of\nsuch Confidential Information or technical information, technology,\nMiscellaneous\nsoftware, or other commodity to nationals, wherever they may be\nlocated, of any prohibited country) as specified in applicable U.S.\n11. This Agreement, and the discussions and activities undertaken\nexport, embargo, and sanctions regulations. This Section will survive\npursuant to this Agreement, impose no obligation on either Party to\ntermination or expiration of this Agreement.\nenter into any transaction or to purchase, sell, license, transfer, or\notherwise dispose of any technology, services, products, stock, or\n16. Notices are deemed effective (a) upon delivery, if delivered by\nassets. Either Party may terminate discussions and negotiations at any\nhand or via email or fax, or, (b) the earlier of five (5) days after the\ntime and for any reason. Until a written definitive agreement\ndate of sending to or the date of receipt by the persons named below\nconcerning any transaction has been executed and delivered, neither\nand signing on behalf of each Party, if sent via receipted courier or\nParty will have any liability to the other Party with respect to any\ncertified (or its equivalent) mail return receipt requested. This\nproposed transaction, other than a breach of the confidentiality\nAgreement may be executed in two or more counterparts, each of\nobligations and other covenants contained herein, whether by virtue\nwhich shall be deemed an original and all of which together shall\nof this Agreement or by any other written or oral expression with\nconstitute one instrument. Facsimile or emailed copies of this\nrespect to the transaction or otherwise.\nAgreement and the signatures thereon shall be treated as originals.\n12. APM and Company are independent contractors, and nothing\n17. This Agreement is made under and shall be governed by and\ncontained in this Agreement shall be construed to constitute APM\nconstrued in accordance with the laws of the State of California,\nand Company as partners, joint venturers, co-owners, or otherwise as\nUSA, without giving effect to its principles regarding conflicts of\nparticipants in a joint or common undertaking.\nlaw, and any disputes arising out of this Agreement shall be settled\nunder California law.\n13. This Agreement shall not be assignable or transferable without\nthe prior written consent of the other Party, which shall not be\n18. This Agreement is the product of both of the Parties hereto, and\nunreasonably withheld or delayed. A waiver of a failure to comply\nconstitutes the entire agreement between the Parties relating to the\nhereunder shall be effected only in writing, signed by the waiving\nprotection of Confidential Information exchanged hereunder, and\nParty, and shall not constitute a waiver of any other failures to\nsupersedes all prior written and oral communications and\ncomply hereunder. All additions or modifications to this Agreement\nnegotiations of the Parties with regard to the protection of such\nmust be made in writing and must be signed by authorized\nConfidential Information.\nrepresentatives of both Parties.\nThe Parties agree to the terms and conditions of this Mutual Non-Disclosure Agreement effective as of the Effective Date first above written.\nApplied Micro Circuits Corporation\nMACOM Technology Solutions Inc.\nBy:\n/s/ Paul L. Alpern\nBy:\n/s/ Karen Hanlon\nPrinted Name: Paul L. Alpern\nPrinted Name: Karen Hanlon\nTitle:\nAssociate General Counsel\nTitle:\nContracts Manager\nDate:\nJuly 27, 2016\nDate:\n7-27-2016\n2	EX-99.(E)(5) 5 d309035dex99e5.htm EXHIBIT (E)(5)\nExhibit (e)(5)\nMUTUAL NON-DISCLOSURE AGREEMENT\nEffective Date: July 26, 2016\nApplied Micro Circuits Corporation, a Delaware corporation with\nits principal place of business located at 4555 Great America\nParkway, Santa Clara, California 95054, USA, on behalf of itself and\nits Affiliates (collectively, “APM”), and MACOM Technology\nSolutions Inc., with its principal place of business located at 100\nChelmsford Street, Lowell, MA 01851, on behalf of itself and its\nAffiliates (collectively, “Company”), hereby enter into this Mutual\nNon-Disclosure Agreement (“Agreement”), as follows:\n1. Definitions:\n“Affiliate” of a Party means an entity that, directly or indirectly,\ncontrols, is controlled by, or is under common control with that Party,\nwhere “control” means ownership or control of more than fifty\npercent (50%) of the voting power of securities or interests in the\nentity controlled.\n“Confidential Information” means non-public, confidential\nand/or proprietary information disclosed by a Party to the other Party\n(or to the other Party’s approved contractors, agents and advisors),\nincluding but not limited to business, marketing, and technical plans;\nstrategies; employees; financial information, analyses, and forecasts;\nintellectual property and/or the subject matter thereof; information\nconcerning existing and future products and services; and the\nexistence of this Agreement and the proposed potential business\nrelationship or transaction between the Parties to which this\nAgreement relates.\n“Discloser” means a Party disclosing Confidential Information\npursuant to this Agreement.\n“Party” means either APM or Company.\n“Purpose” means the evaluation of a potential business\ntransaction between the Parties and the undertaking of such\ntransaction.\n“Recipient” means a Party receiving Confidential Information\npursuant to this Agreement, including its directors, employees,\ncontractors, agents, and advisors.\n2. Term: This Agreement shall commence upon the Effective Date\nand shall remain in effect for one (1) year thereafter, unless\nterminated earlier (“Term”). Recipient shall not disclose, and shall\nprotect against disclosure of, Confidential Information from the date\nof disclosure through three (3) years after the end of the Term\n(“Confidentiality Period”). Any Confidential Information disclosed\nprior to the Effective Date shall be accorded the same protection as\nConfidential Information disclosed during the Term. Either Party may\nterminate this Agreement at any time without cause upon written\nnotice to the other Party; however, all obligations of confidentiality\nand related covenants shall survive termination or expiration of this\nAgreement for the duration of the Confidentiality Period.\n3. Use of Confidential Information: Recipient shall have the right\nto make use of Confidential Information solely during the Term and\nsolely for the Purpose, to the extent that this Agreement is not\nsuperseded by a subsequent agreement that governs the exchange of\nConfidential Information. Notwithstanding the foregoing, Company\nwill not, without the prior written consent of APM, discuss with any\nthird party the potential opportunity to participate with Company in\n4. Care of Confidential Information: Recipient shall protect\nConfidential Information by using the same degree of care to prevent\nthe unauthorized use, dissemination, or publication of such\nConfidential Information as Recipient uses to protect its own\nconfidential information of a like nature, but no less than a\nreasonable degree of care. A Party will not give its directors,\nemployees, contractors, agents, and advisors access to Confidential\nInformation received from a Discloser, or approve any such persons\nfor receipt of Confidential Information directly from the Discloser,\nuntil such Party has ensured that the Recipient is aware of this\nAgreement and is under an obligation to honor it.\n5. Information That Is Covered: Recipient shall have an obligation\nto protect only that Confidential Information which either (a) is\nmarked, identified as, or otherwise acknowledged to be confidential\nat the time of disclosure to Recipient, or (b) should reasonably be\nexpected to be considered confidential or proprietary based upon the\nnature of the information and the circumstances of disclosure,\nincluding but not limited to information that may come to Recipient’s\nknowledge as a result of visiting any of the facilities of Discloser.\nConfidential Information shall be disclosed to or shared among other\nRecipients solely on a need to know basis. Copies of Confidential\nInformation shall only be made by Recipient as necessary for the\nPurpose, and any copies made by Recipient of any Confidential\nInformation shall be labeled or identified as confidential, proprietary,\nor the like, and shall be subject to all terms and provisions of this\nAgreement.\n6. Exclusions: Recipient shall have no duty to protect against\ndisclosure of information that: (a) was rightfully in Recipient’s\npossession before receipt from Discloser, as substantiated by written\nrecords or documentation of Recipient; (b) is or becomes a matter of\npublic knowledge through no fault of Recipient; (c) is rightfully\nreceived by Recipient from a third person without a duty of\nconfidentiality; (d) is independently developed by Recipient, as\nsubstantiated by written records or other documentation of Recipient;\n(e) is disclosed under requirement of law or court order, provided that\nRecipient (i) shall only disclose that portion of the Confidential\nInformation that is legally required; (ii) shall have made a reasonable\neffort to prevent, obtain relief from and/or obtain protective orders\nwith respect to such disclosure requirements, and (iii) shall have\npromptly notified Discloser of the existence of any such disclosure\nrequirement so as to afford Discloser adequate opportunity to do\nlikewise; or (f) is disclosed by Recipient with Discloser ’s prior\nwritten approval.\n7. Warranty: Each Discloser warrants that it has the right to make\nthe disclosures made pursuant to this Agreement. NO OTHER\nWARRANTIES ARE MADE BY EITHER PARTY UNDER\nTHIS AGREEMENT. ANY INFORMATION EXCHANGED\nUNDER THIS AGREEMENT IS PROVIDED “AS IS”.\n8. Rights: Confidential Information is and shall remain the property\nof Discloser along with all associated intellectual property rights\nowned by Discloser. Neither the disclosure of Confidential\nInformation, the expiration of the duty to protect from disclosure, or\nanything else contained in this Agreement (including, without\nlimitation, the right to use Confidential Information as set forth\nabove) shall be construed as granting or conferring any right or\nlicense under any patent, trade secret, copyright, or other intellectual\nproperty right of any Discloser. Neither Party shall reverse engineer,\ndisassemble, or decompile any prototypes, software or other tangible\nobjects which constitute or embody the other Party’s Confidential\nInformation.\n1\nconnection with implementing the Purpose or solicit from any third\nparty any equity or debt financing assistance relating to the Purpose.\nUpon the written request of Discloser, Recipient shall promptly\nreturn all Confidential Information received from Discloser, together\nwith all copies, or, if requested by Discloser, certify that all such\nConfidential Information, together with all copies, has been\ndestroyed.\nThe Parties agree to the terms and conditions of this Mutual Non-Disclosure Agreement effective as of the Effective Date first above written.\nApplied Micro Circuits Corporation\nMACOM Technology Solutions Inc.\nBy:\n/s/ Paul L. Alpern\nBy:\n/s/ Karen Hanlon\nPrinted Name: Paul L. Alpern\nPrinted Name: Karen Hanlon\nTitle:\nAssociate General Counsel\nTitle:\nContracts Manager\nDate:\nJuly 27, 2016\nDate:\n7-27-2016\n2\n9. Material Non-Public Information: By executing and delivering\nthis Agreement, each Party confirms to the other that it is aware and\nthat its representatives have been advised that the Federal and state\nsecurities laws of the United States prohibit any person who\npossesses material, non-public information about a company from\npurchasing or selling securities of such company.\n10. Additional Covenants: In consideration of and as a condition to\nthe exchange of Confidential Information hereunder, the Parties agree\nthat each Recipient and its Affiliates will not, without the prior\nwritten consent of Discloser, for a period of 12 months from the\nEffective Date, directly or indirectly solicit or cause to be solicited\nfor employment any current employee of Discloser or any of its\nAffiliates of whom Recipient first learned of pursuant to disclosures\nmade under, or activity conducted pursuant to, this Agreement;\nprovided, however, that the foregoing restriction will not apply or\nrestrict any covered employees from applying or responding to any\nsolicitation directed at the public in general, nor will it prohibit any\nRecipient from considering or hiring for employment persons who\nrespond to a solicitation directed at the public in general.\nMiscellaneous\n11. This Agreement, and the discussions and activities undertaken\npursuant to this Agreement, impose no obligation on either Party to\nenter into any transaction or to purchase, sell, license, transfer, or\notherwise dispose of any technology, services, products, stock, or\nassets. Either Party may terminate discussions and negotiations at any\ntime and for any reason. Until a written definitive agreement\nconcerning any transaction has been executed and delivered, neither\nParty will have any liability to the other Party with respect to any\nproposed transaction, other than a breach of the confidentiality\nobligations and other covenants contained herein, whether by virtue\nof this Agreement or by any other written or oral expression with\nrespect to the transaction or otherwise.\n12. APM and Company are independent contractors, and nothing\ncontained in this Agreement shall be construed to constitute APM\nand Company as partners, joint venturers, co-owners, or otherwise as\nparticipants in a joint or common undertaking.\n13. This Agreement shall not be assignable or transferable without\nthe prior written consent of the other Party, which shall not be\nunreasonably withheld or delayed. A waiver of a failure to comply\nhereunder shall be effected only in writing, signed by the waiving\nParty, and shall not constitute a waiver of any other failures to\ncomply hereunder. All additions or modifications to this Agreement\nmust be made in writing and must be signed by authorized\nrepresentatives of both Parties.\n14. The Parties expressly agree that due to the unique nature of each\nDiscloser’s Confidential Information, monetary damages may be\ninadequate to compensate Discloser for any breach by Recipient of\nits covenants and agreements set forth in this Agreement.\nAccordingly, each Party acknowledges and agrees that any such\nviolation or threatened violation may cause irreparable injury to\nDiscloser and that, in addition to any other remedies that may be\navailable, in law, in equity, or otherwise, Discloser shall be entitled to\nseek injunctive relief against the threatened breach of this Agreement\nor the continuation of any such breach by Recipient, without the\nnecessity of proving actual damages.\n15. Each Recipient will comply with all applicable U.S. government\nexport and import laws and regulations. Further, each Recipient\nagrees that unless authorized by applicable government license or\nregulation, including but not limited to any U.S. authorization,\nRecipient will not directly or indirectly export or re-export, at any\ntime, any Confidential Information or technical information,\ntechnology, software, or other commodity furnished or developed\nunder this Agreement, to any prohibited country (including release of\nsuch Confidential Information or technical information, technology,\nsoftware, or other commodity to nationals, wherever they may be\nlocated, of any prohibited country) as specified in applicable U.S.\nexport, embargo, and sanctions regulations. This Section will survive\ntermination or expiration of this Agreement.\n16. Notices are deemed effective (a) upon delivery, if delivered by\nhand or via email or fax, or, (b) the earlier of five (5) days after the\ndate of sending to or the date of receipt by the persons named below\nand signing on behalf of each Party, if sent via receipted courier or\ncertified (or its equivalent) mail return receipt requested. This\nAgreement may be executed in two or more counterparts, each of\nwhich shall be deemed an original and all of which together shall\nconstitute one instrument. Facsimile or emailed copies of this\nAgreement and the signatures thereon shall be treated as originals.\n17. This Agreement is made under and shall be governed by and\nconstrued in accordance with the laws of the State of California,\nUSA, without giving effect to its principles regarding conflicts of\nlaw, and any disputes arising out of this Agreement shall be settled\nunder California law.\n18. This Agreement is the product of both of the Parties hereto, and\nconstitutes the entire agreement between the Parties relating to the\nprotection of Confidential Information exchanged hereunder, and\nsupersedes all prior written and oral communications and\nnegotiations of the Parties with regard to the protection of such\nConfidential Information.
95370d54d5db8e7251c009be1a7b2f24.pdf	effective_date jurisdiction party term	Attachment B\nNon-Disclosure Agreement\nTHIS AGREEMENT is made as of the 28 of September, 2004 by and between Telco Solutions III, LLC, a corporation organized under the\nlaws of\n(“TELCO”), and Comverge, Inc., a corporation organized under the laws of Delaware (“COMVERGE”), collectively referred\nto as “Parties”.\nWHEREAS, COMVERGE and TELCO have entered into an agreement whereby Telco will supply certain products to Comverge (the “Supply\nAgreement”); and\nWHEREAS, the Parties and their affiliates will provide confidential and proprietary information and materials to each other which the Parties\nseek to keep confidential.\nNOW THEREFORE, the Parties agree as follows:\n1. Project Defined. The Parties may be receiving from each other information of a non-public nature for use by the Parties in the course of\ncarrying out their respective duties under the Supply Agreement relating to the manufacture, assemble, test and supply certain products for\nComverge (the “Project”).\n2. Confidential Information Defined. The Parties acknowledge that, in the course of the Project, each of the Parties will receive certain non-\npublic and confidential information, from or about each other, including but not limited to technical, financial and business information and models,\nnames of existing or potential suppliers, customers or partners, proposed business deals, reports, plans, market projections, products, services,\nsoftware programs, data or any other confidential and proprietary information relating to the Project. All such technical, financial or other business\ninformation supplied by either of the Parties or their representatives is hereinafter called the “Confidential Information” provided that it is identified\nand clearly marked as such. The term “Confidential Information” as used herein also includes the Project itself and any information, work papers,\nanalyses, compilations, projections, studies, documents, terms, conditions, correspondence, facts or other materials derived or produced by either of\nthe Parties or their representatives for each other which contain or otherwise reflect confidential or proprietary information provided by either of the\nParties in connection with the Project provided that all such information is identified and clearly marked “Confidential”. Any Confidential\nInformation supplied in connection with the Project by either of the Parties prior to the execution of this Agreement shall be considered in the same\nmanner and be subject to the same treatment as the Confidential Information made available hereunder after the execution of this Agreement.\n3. Exclusions from Definition. The term “Confidential Information” as used herein does not include any data or information which: (a) is\nalready known to the receiving party on a nonproprietary basis at the time it is disclosed to the receiving party; (b) is or becomes generally known to\nthe public through no wrongful act of the receiving party or its representatives; (c) has been rightfully received by the receiving party from a third\nparty without restriction on disclosure and without a breach of an obligation of confidentiality running directly to the providing party; or (d) has been\napproved for release by written authorization by the originating party.\n4. Non-disclosure Obligation. The receiving party shall keep the Confidential Information confidential and shall not disclose such Confidential\nInformation, in whole or in part, to any person other than its agents, representatives and employees who need to know such Confidential Information\nin connection with the receiving party’s performance of services in connection with the Project, except with the prior written consent of the\noriginating party or as otherwise permitted hereunder. The Confidential Information shall be used by the receiving party solely for the purpose of\nperforming services in connection with the Project, and shall not be\nComverge – Proprietary and Confidential\n19\n9/28/2004\notherwise used without the originating party’s prior written consent. The receiving party agrees that it may disclose the Confidential Information\nonly to those of their agents and representatives who have been identified to the originating party in writing and whom the originating party has\nagreed in writing need to know the Confidential Information for the purpose of assisting the Parties in connection with the Project. Prior to\ndisseminating any of the Confidential Information to any agent and/or representative permitted herein, the receiving party shall advise recipients of\nsuch information of its confidential nature, and shall require such agent and/or representative to agree, in writing, to maintain the confidentiality of\nthe Confidential Information and to be bound by all the terms, conditions and restrictions of this Agreement. The Parties may add agents and/or\nrepresentatives to the list previously identified herein by giving each other prior written notice and by complying with the remaining provisions of\nthis Paragraph 4. The Confidential Information shall be used by the receiving party solely in connection with the Project, and shall not be otherwise\nused by the receiving party for its own benefit or for any purpose detrimental to the interest of the originating party.\n5. Standard of Protection. For the purpose of complying with the obligations set forth herein, the receiving party shall use a high standard of\ncare, no less than efforts commensurate with those that it employs for the protection of its own confidential and sensitive information.\n6. Compliance with Legal Process. In the event that the receiving party is legally requested or required (by oral questions, interrogatories,\nrequests for information or documents, subpoena, civil investigative demand or similar process or, in the opinion of counsel for the receiving party,\nby applicable statutes, regulations or laws) to disclose any Confidential Information, the receiving party shall promptly notify the originating party of\nsuch request or requirement prior to disclosure so that the originating party may seek an appropriate protective order and/or waive compliance with\nthe terms of this Agreement.\n7. Ownership; Return of Information. Except as otherwise set forth in the Supply Agreement, all Confidential Information (including tangible\ncopies and computerized or electronic versions thereof and also all Confidential Information contained in all deliverables and work papers),\nincluding all intellectual property rights pertaining thereto, shall be the property of the originating party. No later than ten (10) days following the\nreceipt of a written request from the originating party, the receiving party shall deliver to the originating party all Confidential Information, together\nwith a certificate executed by the agent and/or representative or principal of the receiving party certifying that all such materials in the receiving\nparty possession or control have been delivered to the originating party or destroyed. The receiving party shall not directly or indirectly assert any\nright with respect to any of the Confidential Information that may impair or be adverse to the originating party’s ownership thereof.\n8. Remedies for Breach. The Parties understand and agree that money damages may not be a sufficient remedy for any breach of this\nAgreement and that the originating party shall be entitled, without posting bond or other security, to seek injunctive or other equitable relief to\nremedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this\nAgreement, but shall be in addition to all other rights and remedies available at law or in equity.\n9. Term, Termination. This Agreement shall be in effect as of the date first set forth above, and shall continue in full force and effect for and\nduring the term of the Agreement. However, the obligations of the receiving party to maintain the confidentiality of the Confidential Information it\nhas received under this Agreement and its restriction on the use of such Confidential Information shall continue for a period of five years after the\nexpiration or termination of the Supply Agreement Notwithstanding the previous sentence, Confidential Information relating to TELCO’s customer\ninformation shall be subject to a perpetual obligation of confidentiality.\n10. No Waiver. No failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or\nprivilege hereunder.\n11. Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a written document signed by both\nParties hereto.\nComverge – Proprietary and Confidential\n20\n9/28/2004\n12 Applicability to Affiliated Parties. Any information disclosed to the receiving party by any of the originating party’s affiliates or by any\ncompany, person or other entity participating with the originating party, in any consortium, partnership, joint venture or similar business combination\nin direct connection with the Project, which would otherwise constitute Confidential Information hereunder if disclosed by the originating party,\nshall be deemed to constitute Confidential Information under this Agreement, and the rights of the originating party under this Agreement may be\nenforced by any such affiliate or other entity in addition to the originating party with respect to any violation relating to such Confidential\nInformation disclosed by such affiliate or other entity, as if such entity were also a party to this Agreement. For purposes of this agreement, an\n“affiliate” means an entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with,\nsuch entity.\n13. Attorneys’ Fees. Should the originating party or any beneficiary of this Agreement find it necessary to employ legal counsel and bring an\naction at law or in equity to enforce any of the terms or conditions of this Agreement caused by the breach or default by the receiving party, and\nprevails in such action, the receiving party shall reimburse the impaired party or any such beneficiary for all reasonable attorneys’ fees and costs\nincurred pursuing such proceeding.\n14. Governing Law. This Agreement shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of\nTennessee.\nIN WITNESS WHEREOF, the parties have executed and delivered this Non-Disclosure Agreement effective as of the date first above written.\nComverge, Inc.\nTelco Solutions III, LLC\nBy: /s/ Wayne Wren\nBy: /s/ Timothy J. Knox\nName: Wayne Wren\nTitle: EVP\nName: Timothy J. Knox\nTitle: President & CEO\nDate: 9.28.04\nDate: September 29, 2004\nComverge – Proprietary and Confidential\n21\n9/28/2004	Attachment B\nNon-Disclosure Agreement\nTHIS AGREEMENT is made as of the 28 of September, 2004 by and between Telco Solutions III, LL.C, a corporation organized under the\nlaws of (“TELCO”), and Comverge, Inc., a corporation organized under the laws of Delaware (“COMVERGE”), collectively referred\nto as “Parties”.\nWHEREAS, COMVERGE and TELCO have entered into an agreement whereby Telco will supply certain products to Comverge (the “Supply\nAgreement”); and\nWHEREAS, the Parties and their affiliates will provide confidential and proprietary information and materials to each other which the Parties\nseek to keep confidential.\nNOW THEREFORE, the Parties agree as follows:\n1. Project Defined. The Parties may be receiving from each other information of a non-public nature for use by the Parties in the course of\ncarrying out their respective duties under the Supply Agreement relating to the manufacture, assemble, test and supply certain products for\nComverge (the “Project”).\n2. Confidential Information Defined. The Parties acknowledge that, in the course of the Project, each of the Parties will receive certain non-\npublic and confidential information, from or about each other, including but not limited to technical, financial and business information and models,\nnames of existing or potential suppliers, customers or partners, proposed business deals, reports, plans, market projections, products, services,\nsoftware programs, data or any other confidential and proprietary information relating to the Project. All such technical, financial or other business\ninformation supplied by either of the Parties or their representatives is hereinafter called the “Confidential Information” provided that it is identified\nand clearly marked as such. The term “Confidential Information” as used herein also includes the Project itself and any information, work papers,\nanalyses, compilations, projections, studies, documents, terms, conditions, correspondence, facts or other materials derived or produced by either of\nthe Parties or their representatives for each other which contain or otherwise reflect confidential or proprietary information provided by either of the\nParties in connection with the Project provided that all such information is identified and clearly marked “Confidential”. Any Confidential\nInformation supplied in connection with the Project by either of the Parties prior to the execution of this Agreement shall be considered in the same\nmanner and be subject to the same treatment as the Confidential Information made available hereunder after the execution of this Agreement.\n3. Exclusions from Definition. The term “Confidential Information” as used herein does not include any data or information which: (a) is\nalready known to the receiving party on a nonproprietary basis at the time it is disclosed to the receiving party; (b) is or becomes generally known to\nthe public through no wrongful act of the receiving party or its representatives; (c) has been rightfully received by the receiving party from a third\nparty without restriction on disclosure and without a breach of an obligation of confidentiality running directly to the providing party; or (d) has been\napproved for release by written authorization by the originating party.\n4. Non-disclosure Obligation. The receiving party shall keep the Confidential Information confidential and shall not disclose such Confidential\nInformation, in whole or in part, to any person other than its agents, representatives and employees who need to know such Confidential Information\nin connection with the receiving party’s performance of services in connection with the Project, except with the prior written consent of the\noriginating party or as otherwise permitted hereunder. The Confidential Information shall be used by the receiving party solely for the purpose of\nperforming services in connection with the Project, and shall not be\nComverge — Proprietary and Confidential 19 9/28/2004\notherwise used without the originating party’s prior written consent. The receiving party agrees that it may disclose the Confidential Information\nonly to those of their agents and representatives who have been identified to the originating party in writing and whom the originating party has\nagreed in writing need to know the Confidential Information for the purpose of assisting the Parties in connection with the Project. Prior to\ndisseminating any of the Confidential Information to any agent and/or representative permitted herein, the receiving party shall advise recipients of\nsuch information of its confidential nature, and shall require such agent and/or representative to agree, in writing, to maintain the confidentiality of\nthe Confidential Information and to be bound by all the terms, conditions and restrictions of this Agreement. The Parties may add agents and/or\nrepresentatives to the list previously identified herein by giving each other prior written notice and by complying with the remaining provisions of\nthis Paragraph 4. The Confidential Information shall be used by the receiving party solely in connection with the Project, and shall not be otherwise\nused by the receiving party for its own benefit or for any purpose detrimental to the interest of the originating party.\n5. Standard of Protection. For the purpose of complying with the obligations set forth herein, the receiving party shall use a high standard of\ncare, no less than efforts commensurate with those that it employs for the protection of its own confidential and sensitive information.\n6. Compliance with Legal Process. In the event that the receiving party is legally requested or required (by oral questions, interrogatories,\nrequests for information or documents, subpoena, civil investigative demand or similar process or, in the opinion of counsel for the receiving party,\nby applicable statutes, regulations or laws) to disclose any Confidential Information, the receiving party shall promptly notify the originating party of\nsuch request or requirement prior to disclosure so that the originating party may seek an appropriate protective order and/or waive compliance with\nthe terms of this Agreement.\n7. Ownership; Return of Information. Except as otherwise set forth in the Supply Agreement, all Confidential Information (including tangible\ncopies and computerized or electronic versions thereof and also all Confidential Information contained in all deliverables and work papers),\nincluding all intellectual property rights pertaining thereto, shall be the property of the originating party. No later than ten (10) days following the\nreceipt of a written request from the originating party, the receiving party shall deliver to the originating party all Confidential Information, together\nwith a certificate executed by the agent and/or representative or principal of the receiving party certifying that all such materials in the receiving\nparty possession or control have been delivered to the originating party or destroyed. The receiving party shall not directly or indirectly assert any\nright with respect to any of the Confidential Information that may impair or be adverse to the originating party’s ownership thereof.\n8. Remedies for Breach. The Parties understand and agree that money damages may not be a sufficient remedy for any breach of this\nAgreement and that the originating party shall be entitled, without posting bond or other security, to seek injunctive or other equitable relief to\nremedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this\nAgreement, but shall be in addition to all other rights and remedies available at law or in equity.\n9. Term, Termination. This Agreement shall be in effect as of the date first set forth above, and shall continue in full force and effect for and\nduring the term of the Agreement. However, the obligations of the receiving party to maintain the confidentiality of the Confidential Information it\nhas received under this Agreement and its restriction on the use of such Confidential Information shall continue for a period of five years after the\nexpiration or termination of the Supply Agreement Notwithstanding the previous sentence, Confidential Information relating to TELCO’s customer\ninformation shall be subject to a perpetual obligation of confidentiality.\n10. No Waiver. No failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or\nprivilege hereunder.\n11. Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a written document signed by both\nParties hereto.\nComverge — Proprietary and Confidential 20 9/28/2004\n12 Applicability to Affiliated Parties. Any information disclosed to the receiving party by any of the originating party’s affiliates or by any\ncompany, person or other entity participating with the originating party, in any consortium, partnership, joint venture or similar business combination\nin direct connection with the Project, which would otherwise constitute Confidential Information hereunder if disclosed by the originating party,\nshall be deemed to constitute Confidential Information under this Agreement, and the rights of the originating party under this Agreement may be\nenforced by any such affiliate or other entity in addition to the originating party with respect to any violation relating to such Confidential\nInformation disclosed by such affiliate or other entity, as if such entity were also a party to this Agreement. For purposes of this agreement, an\n“affiliate” means an entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with,\nsuch entity.\n13. Attorneys’ Fees. Should the originating party or any beneficiary of this Agreement find it necessary to employ legal counsel and bring an\naction at law or in equity to enforce any of the terms or conditions of this Agreement caused by the breach or default by the receiving party, and\nprevails in such action, the receiving party shall reimburse the impaired party or any such beneficiary for all reasonable attorneys’ fees and costs\nincurred pursuing such proceeding.\n14. Governing Law. This Agreement shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of\nTennessee.\nIN WITNESS WHEREOF, the parties have executed and delivered this Non-Disclosure Agreement effective as of the date first above written.\nComverge, Inc. Telco Solutions III, L1.C\nBy: /s/ Wayne Wren By: /s/ Timothy J. Knox\nName: Wayne Wren Name: Timothy J. Knox\nTitle: EVP Title: President & CEO\nDate: 9.28.04 Date: September 29, 2004\nComverge — Proprietary and Confidential 21 9/28/2004	Attachment B\nNon-Disclosure Agreement\nTHIS AGREEMENT is made as of the 28 of September, 2004 by and between Telco Solutions III, LLC, a corporation organized under the\nlaws of\n("TELCO"), and Comverge, Inc., a corporation organized under the laws of Delaware ("COMVERGE"), collectively referred\nto as "Parties".\nWHEREAS, COMVERGE and TELCO have entered into an agreement whereby Telco will supply certain products to Comverge (the "Supply\nAgreement"); and\nWHEREAS, the Parties and their affiliates will provide confidential and proprietary information and materials to each other which the Parties\nseek to keep confidential.\nNOW THEREFORE, the Parties agree as follows:\n1. Project Defined. The Parties may be receiving from each other information of a non-public nature for use by the Parties in the course of\ncarrying out their respective duties under the Supply Agreement relating to the manufacture, assemble, test and supply certain products for\nComverge (the "Project").\n2. Confidential Information Defined. The Parties acknowledge that, in the course of the Project, each of the Parties will receive certain non-\npublic and confidential information, from or about each other, including but not limited to technical, financial and business information and models,\nnames of existing or potential suppliers, customers or partners, proposed business deals, reports, plans, market projections, products, services,\nsoftware programs, data or any other confidential and proprietary information relating to the Project. All such technical, financial or other business\ninformation supplied by either of the Parties or their representatives is hereinafter called the "Confidential Information" provided that it is identified\nand clearly marked as such. The term "Confidential Information" as used herein also includes the Project itself and any information, work papers,\nanalyses, compilations, projections, studies, documents, terms, conditions, correspondence, facts or other materials derived or produced by either of\nthe Parties or their representatives for each other which contain or otherwise reflect confidential or proprietary information provided by either of the\nParties in connection with the Project provided that all such information is identified and clearly marked "Confidential". Any Confidential\nInformation supplied in connection with the Project by either of the Parties prior to the execution of this Agreement shall be considered in the same\nmanner and be subject to the same treatment as the Confidential Information made available hereunder after the execution of this Agreement.\n3. Exclusions from Definition. The term "Confidential Information" as used herein does not include any data or information which: (a) is\nalready known to the receiving party on a nonproprietary basis at the time it is disclosed to the receiving party; (b) is or becomes generally known to\nthe public through no wrongful act of the receiving party or its representatives; (c) has been rightfully received by the receiving party from a third\nparty without restriction on disclosure and without a breach of an obligation of confidentiality running directly to the providing party; or (d) has been\napproved for release by written authorization by the originating party.\n4. Non-disclosure Obligation. The receiving party shall keep the Confidential Information confidential and shall not disclose such Confidential\nInformation, in whole or in part, to any person other than its agents, representatives and employees who need to know such Confidential Information\nin\nconnection with the receiving party's performance of services in connection with the Project, except with the prior written consent of the\noriginating party or as otherwise permitted hereunder. The Confidential Information shall be used by the receiving party solely for the purpose of\nperforming services in connection with the Project, and shall not be\nComverge - Proprietary and Confidential\n19\n9/28/2004\notherwise used without the originating party's prior written consent. The receiving party agrees that it may disclose the Confidential Information\nonly to those of their agents and representatives who have been identified to the originating party in writing and whom the originating party has\nagreed in writing need to know the Confidentia Information for the purpose of assisting the Parties in connection with the Project. Prior to\ndisseminating any of the Confidential Information to any agent and/or representative permitted herein, the receiving party shall advise recipients of\nsuch information of its confidential nature, and shall require such agent and/or representative to agree, in writing, to maintain the confidentiality of\nthe Confidential Information and to be bound by all the terms, conditions and restrictions of this Agreement. The Parties may add agents and/or\nrepresentatives to the list previously identified herein by giving each other prior written notice and by complying with the remaining provisions of\nthis Paragraph 4. The Confidential Information shall be used by the receiving party solely in connection with the Project, and shall not be otherwise\nused by the receiving party for its own benefit or for any purpose detrimental to the interest of the originating party.\n5. Standard of Protection. For the purpose of complying with the obligations set forth herein, the receiving party shall use a high standard of\ncare, no less than efforts commensurate with those that it employs for the protection of its own confidential and sensitive information.\n6. Compliance with Legal Process. In the event that the receiving party is legally requested or required (by oral questions, interrogatories,\nrequests for information or documents, subpoena, civil investigative demand or similar process or, in the opinion of counsel for the receiving party,\nby applicable statutes, regulations or laws) to disclose any Confidential Information, the receiving party shall promptly notify the originating party of\nsuch request or requirement prior to disclosure so that the originating party may seek an appropriate protective order and/or waive compliance with\nthe terms of this Agreement.\n7. Ownership; Return of Information. Except as otherwise set forth in the Supply Agreement, all Confidential Information (including tangible\ncopies and computerized or electronic versions thereof and also all Confidential Information contained in all deliverables and work papers),\nincluding all intellectual property rights pertaining thereto, shall be the property of the originating party. No later than ten (10) days following the\nreceipt of a written request from the originating party, the receiving party shall deliver to the originating party all Confidential Information, together\nwith a certificate executed by the agent and/or representative or principal of the receiving party certifying that all such materials in the receiving\nparty possession or control have been delivered to the originating party or destroyed. The receiving party shall not directly or indirectly assert any\nright with respect to any of the Confidential Information that may impair or be adverse to the originating party's ownership thereof.\n8. Remedies for Breach. The Parties understand and agree that money damages may not be a sufficient remedy for any breach of this\nAgreement and that the originating party shall be entitled, without posting bond or other security, to seek injunctive or other equitable relief\nto\nremedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this\nAgreement, but shall be in addition to all other rights and remedies available at law or in equity.\n9. Term, Termination. This Agreement shall be in effect as of the date first set forth above, and shall continue in full force and effect for and\nduring the term of the Agreement. However, the obligations of the receiving party to maintain the confidentiality of the Confidential Information\nit\nhas received under this Agreement and its restriction on the use of such Confidential Information shall continue for a period of five years after the\nexpiration or termination of the Supply Agreement Notwithstanding the previous sentence, Confidential Information relating to TELCO'S customer\ninformation shall be subject to a perpetual obligation of confidentiality.\n10. No Waiver. No failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power\nor\nprivilege hereunder.\n11. Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a written document signed by both\nParties hereto.\nComverge Proprietary and Confidential\n20\n9/28/2004\n12 Applicability. to Affiliated Parties. Any information disclosed to the receiving party by any of the originating party's affiliates or by any\ncompany, person or other entity participating with the originating party, in any consortium, partnership, joint venture or similar business combination\nin direct connection with the Project, which would otherwise constitute Confidential Information hereunder if disclosed by the originating party,\nshall be deemed to constitute Confidential Information under this Agreement, and the rights of the originating party under this Agreement may be\nenforced by any such affiliate or other entity in addition to the originating party with respect to any violation relating to such Confidential\nInformation disclosed by such affiliate or other entity, as if such entity were also a party to this Agreement. For purposes of this agreement, an\n"affiliate" means an entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with,\nsuch entity.\n13.\nAttorneys' Fees. Should the originating party or any beneficiary of this Agreement find it necessary to employ legal counsel and bring an\naction at law or in equity to enforce any of the terms or conditions of this Agreement caused by the breach or default by the receiving party, and\nprevails in such action, the receiving party shall reimburse the impaired party or any such beneficiary for all reasonable attorneys' fees and costs\nincurred pursuing such proceeding.\n14.\nGoverning. Law. This Agreement shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of\nTennessee.\nIN WITNESS WHEREOF, the parties have executed and delivered this Non-Disclosure Agreement effective as of the date first above written.\nComverge, Inc.\nTelco Solutions III, LLC\nBy: /s/ Wayne Wren\nBy: /s/ Timothy J. Knox\nName: Wayne Wren\nName: Timothy J. Knox\nTitle: EVP\nTitle: President & CEO\nDate: 9.28.04\nDate: September 29, 2004\nComverge - Proprietary and Confidential\n21\n9/28/2004	Attachment B\nNon-Disclosure Agreement\nTHIS AGREEMENT is made as of the 28 of September, 2004 by and between Telco Solutions III, LLC, a corporation organized under the\nlaws of\n(“TELCO”), and Comverge, Inc., a corporation organized under the laws of Delaware (“COMVERGE”), collectively referred\nto as “Parties”.\nWHEREAS, COMVERGE and TELCO have entered into an agreement whereby Telco will supply certain products to Comverge (the “Supply\nAgreement”); and\nWHEREAS, the Parties and their affiliates will provide confidential and proprietary information and materials to each other which the Parties\nseek to keep confidential.\nNOW THEREFORE, the Parties agree as follows:\n1. Project Defined. The Parties may be receiving from each other information of a non-public nature for use by the Parties in the course of\ncarrying out their respective duties under the Supply Agreement relating to the manufacture, assemble, test and supply certain products for\nComverge (the “Project”).\n2. Confidential Information Defined. The Parties acknowledge that, in the course of the Project, each of the Parties will receive certain non-\npublic and confidential information, from or about each other, including but not limited to technical, financial and business information and models,\nnames of existing or potential suppliers, customers or partners, proposed business deals, reports, plans, market projections, products, services,\nsoftware programs, data or any other confidential and proprietary information relating to the Project. All such technical, financial or other business\ninformation supplied by either of the Parties or their representatives is hereinafter called the “Confidential Information” provided that it is identified\nand clearly marked as such. The term “Confidential Information” as used herein also includes the Project itself and any information, work papers,\nanalyses, compilations, projections, studies, documents, terms, conditions, correspondence, facts or other materials derived or produced by either of\nthe Parties or their representatives for each other which contain or otherwise reflect confidential or proprietary information provided by either of the\nParties in connection with the Project provided that all such information is identified and clearly marked “Confidential”. Any Confidential\nInformation supplied in connection with the Project by either of the Parties prior to the execution of this Agreement shall be considered in the same\nmanner and be subject to the same treatment as the Confidential Information made available hereunder after the execution of this Agreement.\n3. Exclusions from Definition. The term “Confidential Information” as used herein does not include any data or information which: (a) is\nalready known to the receiving party on a nonproprietary basis at the time it is disclosed to the receiving party; (b) is or becomes generally known to\nthe public through no wrongful act of the receiving party or its representatives; (c) has been rightfully received by the receiving party from a third\nparty without restriction on disclosure and without a breach of an obligation of confidentiality running directly to the providing party; or (d) has been\napproved for release by written authorization by the originating party.\n4. Non-disclosure Obligation. The receiving party shall keep the Confidential Information confidential and shall not disclose such Confidential\nInformation, in whole or in part, to any person other than its agents, representatives and employees who need to know such Confidential Information\nin connection with the receiving party’s performance of services in connection with the Project, except with the prior written consent of the\noriginating party or as otherwise permitted hereunder. The Confidential Information shall be used by the receiving party solely for the purpose of\nperforming services in connection with the Project, and shall not be\nComverge – Proprietary and Confidential\n19\n9/28/2004\notherwise used without the originating party’s prior written consent. The receiving party agrees that it may disclose the Confidential Information\nonly to those of their agents and representatives who have been identified to the originating party in writing and whom the originating party has\nagreed in writing need to know the Confidential Information for the purpose of assisting the Parties in connection with the Project. Prior to\ndisseminating any of the Confidential Information to any agent and/or representative permitted herein, the receiving party shall advise recipients of\nsuch information of its confidential nature, and shall require such agent and/or representative to agree, in writing, to maintain the confidentiality of\nthe Confidential Information and to be bound by all the terms, conditions and restrictions of this Agreement. The Parties may add agents and/or\nrepresentatives to the list previously identified herein by giving each other prior written notice and by complying with the remaining provisions of\nthis Paragraph 4. The Confidential Information shall be used by the receiving party solely in connection with the Project, and shall not be otherwise\nused by the receiving party for its own benefit or for any purpose detrimental to the interest of the originating party.\n5. Standard of Protection. For the purpose of complying with the obligations set forth herein, the receiving party shall use a high standard of\ncare, no less than efforts commensurate with those that it employs for the protection of its own confidential and sensitive information.\n6. Compliance with Legal Process. In the event that the receiving party is legally requested or required (by oral questions, interrogatories,\nrequests for information or documents, subpoena, civil investigative demand or similar process or, in the opinion of counsel for the receiving party,\nby applicable statutes, regulations or laws) to disclose any Confidential Information, the receiving party shall promptly notify the originating party of\nsuch request or requirement prior to disclosure so that the originating party may seek an appropriate protective order and/or waive compliance with\nthe terms of this Agreement.\n7. Ownership; Return of Information. Except as otherwise set forth in the Supply Agreement, all Confidential Information (including tangible\ncopies and computerized or electronic versions thereof and also all Confidential Information contained in all deliverables and work papers),\nincluding all intellectual property rights pertaining thereto, shall be the property of the originating party. No later than ten (10) days following the\nreceipt of a written request from the originating party, the receiving party shall deliver to the originating party all Confidential Information, together\nwith a certificate executed by the agent and/or representative or principal of the receiving party certifying that all such materials in the receiving\nparty possession or control have been delivered to the originating party or destroyed. The receiving party shall not directly or indirectly assert any\nright with respect to any of the Confidential Information that may impair or be adverse to the originating party’s ownership thereof.\n8. Remedies for Breach. The Parties understand and agree that money damages may not be a sufficient remedy for any breach of this\nAgreement and that the originating party shall be entitled, without posting bond or other security, to seek injunctive or other equitable relief to\nremedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this\nAgreement, but shall be in addition to all other rights and remedies available at law or in equity.\n9. Term, Termination. This Agreement shall be in effect as of the date first set forth above, and shall continue in full force and effect for and\nduring the term of the Agreement. However, the obligations of the receiving party to maintain the confidentiality of the Confidential Information it\nhas received under this Agreement and its restriction on the use of such Confidential Information shall continue for a period of five years after the\nexpiration or termination of the Supply Agreement Notwithstanding the previous sentence, Confidential Information relating to TELCO’s customer\ninformation shall be subject to a perpetual obligation of confidentiality.\n10. No Waiver. No failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or\nprivilege hereunder.\n11. Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a written document signed by both\nParties hereto.\nComverge – Proprietary and Confidential\n20\n9/28/2004\n12 Applicability to Affiliated Parties. Any information disclosed to the receiving party by any of the originating party’s affiliates or by any\ncompany, person or other entity participating with the originating party, in any consortium, partnership, joint venture or similar business combination\nin direct connection with the Project, which would otherwise constitute Confidential Information hereunder if disclosed by the originating party,\nshall be deemed to constitute Confidential Information under this Agreement, and the rights of the originating party under this Agreement may be\nenforced by any such affiliate or other entity in addition to the originating party with respect to any violation relating to such Confidential\nInformation disclosed by such affiliate or other entity, as if such entity were also a party to this Agreement. For purposes of this agreement, an\n“affiliate” means an entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with,\nsuch entity.\n13. Attorneys’ Fees. Should the originating party or any beneficiary of this Agreement find it necessary to employ legal counsel and bring an\naction at law or in equity to enforce any of the terms or conditions of this Agreement caused by the breach or default by the receiving party, and\nprevails in such action, the receiving party shall reimburse the impaired party or any such beneficiary for all reasonable attorneys’ fees and costs\nincurred pursuing such proceeding.\n14. Governing Law. This Agreement shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of\nTennessee.\nIN WITNESS WHEREOF, the parties have executed and delivered this Non-Disclosure Agreement effective as of the date first above written.\nComverge, Inc.\nTelco Solutions III, LLC\nBy: /s/ Wayne Wren\nBy: /s/ Timothy J. Knox\nName: Wayne Wren\nTitle: EVP\nName: Timothy J. Knox\nTitle: President & CEO\nDate: 9.28.04\nDate: September 29, 2004\nComverge – Proprietary and Confidential\n21\n9/28/2004
970f662e9a542254ed4204735f18db71.pdf	effective_date jurisdiction party	EXECUTION VERSION\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS NON-COMPETITION and CONFIDENTIALITY AGREEMENT (“Agreement”) is made and\nentered into this 1st day of September, 2012, by and between Myers Industries, Inc., an Ohio Corporation (the\n“Company”), and Gregg Branning (the “Employee”).\nRECITALS:\n1. The Company is a diversified international manufacturer of polymer products for the industrial,\nagricultural, automotive, commercial and consumer markets and distributor of tools, equipment and supplies\nfor tire service and under vehicle repair. The Company currently operates through four (4) business segments\nincluding Lawn & Garden, Material Handling, Distribution, and Engineered Products (collectively, the\n“Business Segments”).\n2. Employee is being employed by the Company as its Executive Vice President, Chief Financial\nOfficer and Secretary.\n3. The Company has acquired and established valuable and competitively sensitive information\nthrough its business, research, development and practices, which information is described more extensively\nherein, and is collectively referred to as the “Confidential Information.” To protect the business interests of the\nCompany and the competitive advantage derived from the Confidential Information, it is necessary that such\nConfidential Information be kept secret and confidential.\n4. The Employee, from and after the commencement of employment with the Company, will be\nengaged in activities such that the Employee will have extensive access to and become familiar with, and may\ndevelop or contribute to, some or all of the Company’s Confidential Information in all of its Business\nSegments. In addition, Employee may have extensive contact with the customers of the Company and may\ndevelop relationships with such customers on behalf of the Company. The Employee recognizes that the\nConfidential Information and the Company’s customer relationships are vital to the success of the Company\nand that extensive, irreparable harm would result were such Confidential Information to be disclosed outside\nthe Company or if Employee were to engage in activity which competes with the Company.\nNOW, THEREFORE, in view of the above and in consideration for the mutual covenants and promises\nset forth below, the parties agree as follows:\n1.Confidential Information: For purposes of this Agreement, Confidential\nInformation includes, but is not limited to, business plans and strategies,\nmarketing plans and strategies, customer lists, customer purchasing\ninformation, customer contact information, product design and development\ninformation, methods of operation, technical services, non-public financial\ninformation, business development plans and strategies, system analyses,\nquality control programs and information, computer programs, software and\nhardware configurations, information regarding the terms of the Company’s\nrelationships with suppliers, pricing information, processes and techniques,\ncreations, innovations, and any other information which the Company may\nreasonably treat or designate as confidential from time to time. The Company\nbelieves that all Confidential Information constitutes trade secret information\nunder applicable law. Employee shall, however, maintain the confidentiality of\nall Confidential Information whether or not ultimately determined to be a\ntrade secret.\n2. Confidentiality and Non-Competition:\nA. Covenants\n(a) Employee acknowledges that the Company would be irreparably injured\nand the good will of the Company would be irreparably damaged if Employee were to\nbreach the covenants set forth in this Paragraph 2. Employee further acknowledges\nthat the covenants set forth in this Paragraph 2 are reasonable in scope and duration\nand do not unreasonably restrict Employee’s association with other business entities,\neither as an employee or otherwise as set forth herein. For purposes of this Paragraph\n2, the Company will include all its Business Segments now or subsequently existing.\n(b) During Employee’s employment with the Company and any time thereafter,\nexcept as may be required by law, Employee shall not, directly or indirectly, disclose,\ndisseminate, reveal, divulge, discuss, copy or otherwise use or suffer to be used, any\nConfidential Information other than in the authorized scope of Employee’s\nemployment with the Company. Upon termination of employment, no matter what the\nreason for such termination, and at any other time upon the request of the Company,\nEmployee shall immediately return to the Company any and all Confidential\nInformation, and all other materials, property and information in tangible or\nelectronic form concerning the business and affairs of the Company and/or its\ncustomers.\n(c) Employee agrees that during Employee’s employment and for a period of\nthree (3) years following the termination of such employment, no matter what the\nreason for such termination, Employee will not directly or indirectly, whether on\nEmployee’s own behalf or on behalf of any other person or entity, do or suffer any of\nthe following\n(i) Own, manage, control, participate in the ownership, management or\ncontrol of, be employed or engaged by or otherwise affiliated or associated as a\nconsultant, independent contractor or otherwise with, any person or business entity\nthat competes with the Company in the United States or in any geographic area(s)\noutside the United States in which the Company does business (the “Restricted\nTerritory”). Without limiting the generality and scope of the foregoing, any\nbusiness entity or person providing products or services competitive with those of\nthe Company in the Restricted Territory from either inside or outside the\nRestricted Territory is deemed to be competing within the Restricted Territory. For\npurposes of this Agreement, the phrase “competes with” means providing services\nand products which are the same as, similar to, reasonably substitutable for, or\notherwise capable of displacing the services and products of the Company.\nNotwithstanding the foregoing, Employee’s passive investment ownership of not\nmore than one percent (1%) of the stock of any publicly traded corporation shall\nnot be deemed a violation of this provision.\n(ii) Solicit, provide, sell, attempt to provide or sell, or otherwise deliver or\nsupply any products or services which compete with the products or services of the\nCompany to any person or business entity which is or was a customer or\nprospective customer of the Company at any time during the last thirty-six (36)\nmonths of Employee’s employment, nor shall Employee in any way assist any other\nperson or entity in such activity. For purposes of this Agreement, (1) the phrase\n“products or services which compete with the products or services of the Company\nmeans products or services which are the same as, similar to, reasonably\nsubstitutable for, or otherwise capable of displacing the products or services of the\nCompany; and (2) the term “prospective customer” means any person or entity the\nCompany solicited, called on or otherwise specifically identified as a target for the\nsale of its products or services.\n(iii) Solicit, hire or otherwise engage the services of any person who then\ncurrently is, or who at any time during Employee’s employment with the Company\nwas, an employee, consultant or independent contractor of the Company, or\notherwise encourage or induce any such person to discontinue his or her\nrelationship with the Company. Employee will not engage in any business\nrelationship with any subcontractor, supplier or service provider of the Company\nwhich interferes with the Company’s relationship with such subcontractor, supplier\nor service provider, or in any way causes such subcontractor, supplier or service\nprovider to reduce, alter, modify or discontinue the business it (they) do(es) with\nthe Company or any of its affiliates.\n3.\nInventions: Employee hereby expressly agrees that all research\ndiscoveries, inventions and innovations (whether or not reduced to practice or\ndocumented), improvements, developments, methods, designs, analyses,\ndrawings, reports and all similar or related information (whether patentable\nor unpatentable, and whether or not reduced to writing), Confidential\nInformation and copyrightable works, and similar and related information (in\nwhatever form or medium), which (3) either (i) relate to the Company’s or its\naffiliates’ actual or anticipated business, research and development or existing\nor future products or services or (ii) result from or are suggested by any work\nperformed by the Employee for the Company or its affiliates and (3) are\nconceived, developed, made or contributed to in whole or in part by the\nEmployee during his employment (“Work Product”) shall be and remain the\nsole and exclusive property of the Company or such affiliate.\n(ii)\nWork Made for Hire. The Employee acknowledges that, unless\notherwise agreed in writing by the Company, all Work Product eligible for any\nform of copyright, trademark or patent protection made or contributed to in whole\nor in part by the Employee within the scope of Employee’s employment by the\ncompany during the period of Employee’s employment with the Company shall be\ndeemed a “work made for hire” and shall be owned by the Company or its\naffiliates, as applicable.\n(iii)\nAssignment of Proprietary Rights. The Employee hereby assigns,\ntransfers and conveys to the Company, and shall assign, transfer and convey to the\nCompany, all right, title and interest in and to all inventions, ideas, improvements,\ndesigns, processes, patent rights, copyrights, trademarks, service marks, trade\nnames, trade secrets, trade dress, data, discoveries and other proprietary assets and\nproprietary rights in and of the Work Product (the “Proprietary Rights”) for the\nCompany’s exclusive ownership and use, together with all rights to sue and recover\nfor past and future infringement or misappropriation thereof provided that if an\naffiliate of the Company is the owner thereof; such assignment, transfer and\nconveyance shall be made to such affiliate, which shall enjoy exclusive ownership\nand use, together with all rights to sue and recover for past and future infringement\nor misappropriation thereof.\n(iv) Further Instruments. At the request of the Company (or its affiliates, as\nthe case may be), at all times during Employee’s employment with the Company\nand thereafter, the Employee will promptly and fully assist the Company (or its\naffiliates, as the case may be) in effecting the purpose of the foregoing assignment,\nincluding but not limited to the further acts of executing any and all documents\nnecessary to secure for the Company (or its affiliates, as the case may be) such\nProprietary Rights and other rights to all Work Product and all confidential\ninformation related thereto, providing cooperation and giving testimony.\n(v) Inapplicability of Section 3(d) In Certain Circumstances. The Company\nexpressly acknowledges and agrees that, and the Employee is hereby advised that,\nthis Section 3(d) does not apply to any invention for which no equipment, supplies,\nfacilities, trade secret information or Confidential Information of the Company or\nits affiliates was used and which was developed entirely on the Employee’s own\ntime, unless (3) the invention relates to the business of the Company or its affiliates,\nor to the Company’s or its affiliates’ actual or demonstrably anticipated research\nor development or (3) the invention results from or is suggested by any work\nperformed or observed by the Employee for the Company or any of its affiliates.\n4. Remedies: Employee acknowledges that the restrictions contained in\nparagraphs 2 and 3 of this Agreement are reasonable in light of Employee’s\nposition with the Company and are necessary to protect the Company from\nunfair competitive harm. Employee further acknowledges that any breach of\nthis Agreement will result in immediate irreparable harm to the Company and\nthat the Company shall be entitled to immediate injunctive relief upon any\nsuch breach, in addition to all other legal and equitable remedies the\nCompany may have. This Agreement is to be construed as separate and\nindependent from any other obligations and any claim by Employee asserted\nagainst the Company and shall not constitute a defense to the enforcement of\nthis Agreement. In the event any court determines that the restrictions set\nforth herein are unreasonable or unenforceable for any reason, the court will\nenforce such restrictions to the fullest extent permitted by law.\n5. Position of Employment: Employee expressly acknowledges that the\nobligations contained in paragraphs 2 and 3 of this Agreement shall remain in\nfull force and effect during Employee’s employment in any position with the\nCompany, with respect to any Confidential Information of the Company.\n6. Validity: In the event any provision of this Agreement, or portion\nthereof, is held by a court of competent jurisdiction to be unreasonable,\narbitrary, or against public policy, then such provision, or portion thereof,\nshall be enforced against the Employee to the extent the court deems to be\nreasonable or in accordance with public policy. In the event any provision of\nthis Agreement shall for any reason be wholly invalid, or unenforceable in any\nrespect, such invalidity shall not affect the validity of any remaining portion\nwhich shall remain in full force and effect as if the invalid portion was never\npart of this Agreement.\n7.\nMiscellaneous: Employee acknowledges that the Employee has\ncarefully read this entire Agreement and fully agrees with and understands all\nof the provisions the hereof. This Agreement supersedes all prior agreements\nbetween the Company and the Employee regarding the subject matter of this\nAgreement and constitutes the entire agreement between the parties with\nrespect to such subject matter. The Employee further agrees that in executing\nthis Agreement, the Employee has not relied on any written or oral\nrepresentations, promises, conditions, or understandings of the Company,\nexpress or implied, except as set forth herein. This Agreement may not be\namended or modified other than in writing signed by the parties. This\nAgreement and any disputes arising thereunder shall be governed by the laws\nof the State of Ohio without regard to any State’s choice of law, rules or\nprinciples. Employee and the Company expressly agree that any legal action\narising out of or related to this Agreement will be brought exclusively in the\nstate or federal courts located in Summit County, Ohio, and each party\nexpressly consents to the jurisdiction of such courts and waives any and all\nobjections to the jurisdiction or venue thereof. This Agreement may be\nassigned to any successor-in-interest to the business of the Company without\nthe consent of Employee, but may not be assigned by Employee to any third\nparty. This Agreement is not a contract of employment for any definite period\nand Employee acknowledges that Employee’s employment with the Company\nis terminable at-will.\nIN WITNESS WHEREOF, the parties have hereunto executed this\nAgreement as of the date first set forth above.\nDate: _September 1, 2012__________\nMyers Industries, Inc.\nBy: _/s/ John C. Orr_______________________\nDate: _September 1, 2012___________\nEmployee\nSignature: _/s/ Greggory W. Branning________\nPrint Name: Gregg Branning\n7268294 v1	EXECUTION VERSION\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS NON-COMPETITION and CONFIDENTIALITY AGREEMENT (”Agreement”) is made and\nentered into this lst day of September, 2012, by and between Myers Industries, Inc., an Ohio Corporation (the\n”Company”), and Gregg Branning (the ”Employee”).\nRECITALS:\n1. The Company is a diversified international manufacturer of polymer products for the industrial,\nagricultural, automotive, commercial and consumer markets and distributor of tools, equipment and supplies\nfor tire service and under vehicle repair. The Company currently operates through four (4) business segments\nincluding Lawn & Garden, Material Handling, Distribution, and Engineered Products (collectively, the\n”Business Segments”).\n2. Employee is being employed by the Company as its Executive Vice President, Chief Financial\nOfficer and Secretary.\n3. The Company has acquired and established valuable and competitively sensitive information\nthrough its business, research, development and practices, which information is described more extensively\nherein, and is collectively referred to as the ”Confidential Information.” To protect the business interests of the\nCompany and the competitive advantage derived from the Confidential Information, it is necessary that such\nConfidential Information be kept secret and confidential.\n4. The Employee, from and after the commencement of employment with the Company, will be\nengaged in activities such that the Employee will have extensive access to and become familiar with, and may\ndevelop or contribute to, some or all of the Company’s Confidential Information in all of its Business\nSegments. In addition, Employee may have extensive contact with the customers of the Company and may\ndevelop relationships with such customers on behalf of the Company. The Employee recognizes that the\nConfidential Information and the Company’s customer relationships are vital to the success of the Company\nand that extensive, irreparable harm would result were such Confidential Information to be disclosed outside\nthe Company or if Employee were to engage in activity which competes with the Company.\nNOW, THEREFORE, in view of the above and in consideration for the mutual covenants and promises\nset forth below, the parties agree as follows:\n1.C onfidential Information: For purgoses of this Agreement, C onfidential\nInformation includes, But is not limite to, business plans and strategies,\ninarketirig plans and strategies, customer lists, customer purchasm\ninformation, customer contact information, product des1gn and developmen\ninformation, methods of olieration, technical serVices, . non-public finanCial\ninformation, bus1ness deve opment plans and strategies, system analyses\nquality control. programs and information, computer programs software an\nhardware configurations! informationiregardirig the terms of the Company’s\nrelationships Wlth. suppliers, priCing information, processes and techniques,\ncreations, innovations, and any other information which the Company may\nreasonably treat or designate as confidential from time to time. The Company\nbelieves that all Confidential Information constitutes trade secret. information\nunder a .pllcable law. Em loyee shall, however, maintain the confidentiality of\nIall (Con 1detnt1al Informa ion whether or not ultimately determined to be a\nra e secre .\n2. Confidentiality and Non-C ompetition:\nA. Covenants\n(a) Employee acknowledges that the Company would be irreparably injured\nand the good will of the Company would be irreparably damaged if Employee were to\nbreach the covenants set forth in this Paragraph 2. Employee further acknowledges\nthat the covenants set forth in this Paragraph 2 are reasonable in scope and duration\nand do not unreasonably restrict Employee's association with other business entities,\neither as an employee or otherwise as set forth herein. For purposes of this Paragraph\n2, the Company will include all its Business Segments now or subsequently existing.\n(b) During Employee's employment with the Company and any time thereafter,\nexcept as may be required by law, Employee shall not, directly or indirectly, disclose,\ndisseminate, reveal, divulge, discuss, copy or otherwise use or suffer to be used, any\nConfidential Information other than in the authorized scope of Employee's\nemployment with the Company. Upon termination of employment, no matter what the\nreason for such termination, and at any other time upon the request of the Company,\nEmployee shall immediately return to the Company any and all Confidential\nInformation, and all other materials, property and information in tangible or\nelectronic form concerning the business and affairs of the Company and/or its\ncustomers.\n(c) Employee agrees that during Employee's employment and for a period of\nthree (3) years following the termination of such employment, no matter what the\nreason for such termination, Employee will not directly or indirectly, whether on\nEmployee's own behalf or on behalf of any other person or entity, do or suffer any of\nthe following\n(i) Own, manage, control, participate in the ownership, management or\ncontrol of, be employed or engaged by or otherwise affiliated or associated as a\nconsultant, independent contractor or otherwise with, any person or business entity\nthat competes with the Company in the United States or in any geographic area(s)\noutside the United States in which the Company does business (the ”Restricted\nTerritory"). Without limiting the generality and scope of the foregoing, any\nbusiness entity or person providing products or services competitive with those of\nthe Company in the Restricted Territory from either inside or outside the\nRestricted Territory is deemed to be competing within the Restricted Territory. For\npurposes of this Agreement, the phrase ” competes with" means providing services\nand products which are the same as, similar to, reasonably substitutable for, or\notherwise capable of displacing the services and products of the Company.\nNotwithstanding the foregoing, Employee's passive investment ownership of not\nmore than one percent (1% ) of the stock of any publicly traded corporation shall\nnot be deemed a violation of this provision.\n(ii) Solicit, provide, sell, attempt to provide or sell, or otherwise deliver or\nsupply any products or services which compete with the products or services of the\nCompany to any person or business entity which is or was a customer or\nprospective customer of the Company at any time during the last thirty-six (36)\nmonths of Employee's employment, nor shall Employee in any way assist any other\nperson or entity in such activity. For purposes of this Agreement, (1) the phrase\n”products or services which compete with the products or services of the Company\nmeans products or services which are the same as, similar to, reasonably\nsubstitutable for, or otherwise capable of displacing the products or services of the\nCompany; and (2) the term ”prospective customer” means any person or entity the\nCompany solicited, called on or otherwise specifically identified as a target for the\nsale of its products or services.\n(iii) Solicit, hire or otherwise engage the services of any person who then\ncurrently is, or who at any time during Employee's employment with the Company\nwas, an employee, consultant or independent contractor of the Company, or\notherwise encourage or induce any such person to discontinue his or her\nrelationship with the Company. Employee will not engage in any business\nrelationship with any subcontractor, supplier or service provider of the Company\nwhich interferes with the Company's relationship with such subcontractor, supplier\nor service provider, or in any way causes such subcontractor, supplier or service\nprovider to reduce, alter, modify or discontinue the business it (they) do(es) with\nthe Company or any of its affiliates.\n3. Inventions: Employee hereby expressly agrees that all research\ndiscoveries, inventions and innovations (whether or not reduced to practice or\ndocumented), improvements, developments, methods, designs, analyses,\ndrawings, reports and all similar or related information (whether patentable\nor unpatentable, and whether or not reduced to writing), Confidential\nInformation and copyrightable works, and similar and related information (in\nwhatever form or medium), which (3) either (i) relate to the Company’s or its\naffiliates’ actual or anticipated business, research and development or existing\nor future products or services or (ii) result from or are suggested by any work\nperformed by the Employee for the Company or its affiliates and (3) are\nconceived, developed, made or contributed to in whole or in part by the\nEmployee during his employment (”Work Product”) shall be and remain the\nsole and exclusive property of the C ompany or such affiliate.\n(ii) Work Made for Hire. The Employee acknowledges that, unless\notherwise agreed in writing by the Company, all Work Product eligible for any\nform of copyright, trademark or patent protection made or contributed to in whole\nor in part by the Employee within the scope of Employee's employment by the\ncompany during the period of Employee's employment with the Company shall be\ndeemed a ”work made for hire” and shall be owned by the Company or its\naffiliates, as applicable.\n(iii) Assignment of Proprietary Rights. The Employee hereby assigns,\ntransfers and conveys to the Company, and shall assign, transfer and convey to the\nCompany, all right, title and interest in and to all inventions, ideas, improvements,\ndesigns, processes, patent rights, copyrights, trademarks, service marks, trade\nnames, trade secrets, trade dress, data, discoveries and other proprietary assets and\nproprietary rights in and of the Work Product (the ”Proprietary Rights") for the\nCompany' s exclusive ownership and use, together with all rights to sue and recover\nfor past and future infringement or misappropriation thereof provided that if an\naffiliate of the Company is the owner thereof; such assignment, transfer and\nconveyance shall be made to such affiliate, which shall enjoy exclusive ownership\nand use, together with all rights to sue and recover for past and future infringement\nor misappropriation thereof.\n(iv) Further Instruments. At the request of the Company (or its affiliates, as\nthe case may be), at all times during Employee's employment with the Company\nand thereafter, the Employee will promptly and fully assist the Company (or its\naffiliates, as the case may be) in effecting the purpose of the foregoing assignment,\nincluding but not limited to the further acts of executing any and all documents\nnecessary to secure for the Company (or its affiliates, as the case may be) such\nProprietary Rights and other rights to all Work Product and all confidential\ninformation related thereto, providing cooperation and giving testimony.\n(v) Inapplicability of Section 3(d) In Certain Circumstances. The Company\nexpressly acknowledges and agrees that, and the Employee is hereby advised that,\nthis Section 3(d) does not apply to any invention for which no equipment, supplies,\nfacilities, trade secret information or Confidential Information of the Company or\nits affiliates was used and which was developed entirely on the Employee's own\ntime, unless (3) the invention relates to the business of the Company or its affiliates,\nor to the Company's or its affiliates' actual or demonstrably anticipated research\nor development or (3) the invention results from or is suggested by any work\nperformed or observed by the Employee for the Company or any of its affiliates.\n4. Remedies: Employee acknowledges that the restrictions contained in\nparagraphs 2 and 3 of this Agreement are reasonable in light of Employee’s\nposition with the Company and are necessary to protect the Company from\nunfair competitive harm. Employee further acknowledges that any breach of\nthis Agreement will result in immediate irreparable harm to the C ompany and\nthat the Company shall be entitled to immediate injunctive relief upon any\nsuch breach, in addition to all other legal and equitable remedies the\nCompany may have. This Agreement is to be construed as separate and\nindependent from any other obligations and any claim by Employee asserted\nagainst the Company and shall not constitute a defense to the enforcement of\nthis Agreement. In the event any court determines that the restrictions set\nforth herein are unreasonable or unenforceable for any reason, the court will\nenforce such restrictions to the fullest extent permitted by law.\n5. Position of Employment: Employee expressly acknowledges that the\nobligations contained in paragraphs 2 and 3 of this Agreement shall remain in\nfull force and effect during Employee’s employment in any position with the\nC ompany, with respect to any C onfidential Information of the C ompany.\n6. Validity: In the event any provision of this Agreement, or portion\nthereof, is held by a court of competent jurisdiction to be unreasonable,\narbitrary, or against public policy, then such provision, or portion thereof,\nshall be enforced against the Employee to the extent the court deems to be\nreasonable or in accordance with public policy. In the event any provision of\nthis Agreement shall for any reason be wholly invalid, or unenforceable in any\nrespect, such invalidity shall not affect the validity of any remaining portion\nwhich shall remain in full force and effect as if the invalid portion was never\npart of this Agreement.\n7. Miscellaneous: Employee acknowledges that the Employee ha\ncarefully read this entire Agreement and fully agrees with and understands all\nof the provisions the hereof. This Agreement supersedes all prior agreements\nbetween the Company and the Employee regarding the subject matter of this\nAgreement and constitutes the entire agreement between the parties with\nrespect to such subject matter. The Employee further agrees that in executing\nthis Agreement, the Employee has not relied on any written or oral\nrepresentations, promises, conditions, or understandings of the Company,\nexpress or implied, except as set forth herein. This Agreement may not be\namended or modified other than in writing signed by the parties. This\nAgreement and any disputes arising thereunder shall be governed by the laws\nof the State of Ohio without regard to any State’s choice of law, rules or\nprinciples. Employee and the Company expressly agree that any legal action\narising out of or related to this Agreement will be brought exclusively in the\nstate or federal courts located in Summit County, Ohio, and each party\nexpressly consents to the jurisdiction of such courts and waives any and all\nobjections to the jurisdiction or venue thereof. This Agreement may be\nassigned to any successor-in-interest to the business of the Company without\nthe consent of Employee, but may not be assigned by Employee to any third\nparty. This Agreement is not a contract of employment for any definite period\nand Employee acknowledges that Employee’s employment with the Company\nis terminable at-will.\nIN WITNESS WHEREOF, the parties have hereunto executed this\nAgreement as of the date first set forth above.\nMyers Industries, Inc.\nBy: _/s/John C. Orr\n \nDate: _September 1, 2012\nEmployee\nSignature: _/s/ Greggory W. Branning\nPrint Name: Gregg Branning\nDate: _September 1, 2012\n7268294 V1	EXECUTION VERSION\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS NON-COMPETITION and CONFIDENTIALITY AGREEMENT Agreement") is made and\nentered into this 1st day of September, 2012, by and between Myers Industries, Inc., an Ohio Corporation (the\n"Company") and Gregg Branning (the "Employee").\nRECITALS:\n1.\nThe Company is a diversified international manufacturer of polymer products for the industrial\nagricultural, automotive, commercial and consumer markets and distributor of tools, equipment and supplies\nfor tire service and under vehicle repair. The Company currently operates through four (4) business segments\nincluding Lawn & Garden, Material Handling Distribution, and Engineered Products (collectively, the\n"Business Segments").\n2.\nEmployee is being employed by the Company as its Executive Vice President, Chief Financial\nOfficer and Secretary.\n3.\nThe Company has acquired and established valuable and competitively sensitive information\nthrough its business, research, development and practices, which information is described more extensively\nherein, and is collectively referred to as the "Confidential Information." To protect the business interests of the\nCompany and the competitive advantage derived from the Confidential Information, it is necessary that such\nConfidential Information be kept secret and confidential.\n4. The Employee, from and after the commencement of employment with the Company, will be\nengaged in activities such that the Employee will have extensive access to and become familiar with, and may\ndevelop\nor\ncontribute\nto,\nsome\nor\nall\nof\nthe\nCompany's\nConfidential\nInformation\nin\nall\nof\nits\nBusiness\nSegments. In addition, Employee may have extensive contact with the customers of the Company and may\ndevelop relationships with such customers on behalf of the Company. The Employee recognizes that the\nConfidential Information and the Company's customer relationships are vital to the success of the Company\nand that extensive, irreparable harm would result were such Confidential Information to be disclosed outside\nthe Company or if Employee were to engage in activity which competes with the Company.\nNOW, THEREFORE in view of the above and in consideration for the mutual covenants and promises\nset forth below, the parties agree as follows:\nConfidential Information: For purposes of this Agreement, Confidential\nInformation includes, but is not limited to, business plans and strategies,\nmarketing plans and strategies, customer lists, customer purchasing\ninformation, customer contact information, product design and development\ninformation methods of operation, technical services, non-public financial\ninformation, business development plans and strategies, system analyses,\nquality control programs and information computer programs, software and\nhardware\nconfigurations,\ninformation\nregarding\nthe\nterms\nof\nthe\nCompany's\nrelationships with suppliers, pricing information, processes and techniques,\ncreations, innovations, and any other information which the Company may\nreasonably treat or designate as confidential from time to time. The Company\nbelieves that all Confidential Information constitutes trade secret information\nunder applicable law. Employee shall, however, maintain the confidentiality of\nall Confidential Information whether or not ultimately determined to be a\ntrade secret.\n2. Confidentiality and Non-Competition:\nA. Covenants\n(a)\nEmployee acknowledges that the Company would be irreparably injured\nand the good will of the Company would be irreparably damaged if Employee were to\nbreach the covenants set forth in this Paragraph 2. Employee further acknowledges\nthat the covenants set forth in this Paragraph 2 are reasonable in scope and duration\nand do not unreasonably restrict Employee's association with other business entities,\neither as an employee or otherwise as set forth herein. or purposes of this Paragraph\n2, the Company will include all its Business Segments now or subsequently existing.\n(b) During Employee's employment with the Company and any time thereafter,\nexcept as may be required by law, Employee shall not, directly or indirectly, disclose,\ndisseminate, reveal, divulge, discuss, copy or otherwise use or suffer to be used, any\nConfidential Information other than in the authorized scope of Employee's\nemployment with the Company. Upon termination of employment, no matter what the\nreason for such termination, and at any other time upon the request of the Company,\nEmployee shall immediately return to the Company any and all Confidential\nInformation, and all other materials, property and information in tangible or\nelectronic form concerning the business and affairs of the Company and/or its\ncustomers.\n(c) Employee agrees that during Employee's employment and for a period of\nthree (3) years following the termination of such employment, no matter what the\nreason for such termination, Employee will not directly or indirectly, whether on\nEmployee's own behalf or on behalf of any other person or entity, do or suffer any of\nthe following\n(i)\nOwn, manage, control, participate in the ownership, management or\ncontrol of, be employed or engaged by or otherwise affiliated or associated as a\nconsultant, independent contractor or otherwise with, any person or business entity\nthat competes with the Company in the United States or in any geographic area(s)\noutside the United States in which the Company does business (the "Restricted\nTerritory") Without limiting the generality and scope of the foregoing, any\nbusiness entity or person providing products or services competitive with those of\nthe Company in the Restricted Territory from either inside or outside the\nRestricted Territory is deemed to be competing within the Restricted Territory. For\npurposes of this Agreement, the phrase "competes with" means providing services\nand products which are the same as, similar to, reasonably substitutable for, or\notherwise capable of displacing the services and products of the Company.\nNotwithstanding the foregoing, Employee's passive investment ownership of not\nmore than one percent (1%) of the stock of any publicly traded corporation shall\nnot be deemed a violation of this provision.\n(ii) Solicit, provide, sell, attempt to provide or sell, or otherwise deliver or\nsupply any products or services which compete with the products or services of the\nCompany to any person or business entity which is or was a customer or\nprospective customer of the Company at any time during the last thirty-six (36)\nmonths of Employee's employment, nor shall Employee in any way assist any other\nperson or entity in such activity. For purposes of this Agreement, (1) the phrase\n"products or services which compete with the products or services of the Company\nmeans products or services which are the same as, similar to, reasonably\nsubstitutable for, or otherwise capable of displacing the products or services of the\nCompany; and (2) the term "prospective customer" means any person or entity the\nCompany solicited, called on or otherwise specifically identified as a target for the\nsale of its products or services.\n(iii)\nSolicit, hire or otherwise engage the services of any person who then\ncurrently is, or who at any time during Employee' employment with the Company\nwas, an employee, consultant or independent contractor of the Company, or\notherwise encourage or induce any such person to discontinue his or her\nrelationship with the Company. Employee will not engage in any business\nrelationship with any subcontractor, supplier or service provider of the Company\nwhich interferes with the Company's relationship with such subcontractor, supplier\nor service provider, or in any way causes such subcontractor, supplier or service\nprovider to reduce, alter, modify or discontinue the business it (they) do(es) with\nthe Company or any of its affiliates.\n3.\nInventions: Employee hereby expressly agrees that all research\ndiscoveries, inventions and innovations (whether or not reduced to practice or\ndocumented), improvements, developments, methods, designs, analyses,\ndrawings, reports and all similar or related information (whether patentable\nor unpatentable, and whether or not reduced to writing), Confidential\nInformation and copyrightable works, and similar and related information (in\nwhatever form or medium), which (3) either (i) relate to the Company's or its\naffiliates' actual or anticipated business, research and development or existing\nor future products or services or (ii) result from or are suggested by any work\nperformed by the Employee for the Company or its affiliates and (3) are\nconceived, developed, made or contributed to in whole or in part by the\nEmployee during his employment ("Wo Work Product") shall be and remain the\nsole and exclusive property of the Company or such affiliate.\n(ii) Work Made for Hire. The Employee acknowledges that, unless\notherwise agreed in writing by the Company, all Work Product eligible for any\nform of copyright, trademark or patent protection made or contributed to in whole\nor in part by the Employee within the scope of Employee's employment by the\ncompany during the period of Employee's employment with the Company shall be\ndeemed a "work made for hire" and shall be owned by the Company or its\naffiliates, as applicable.\n(iii)\nAssignment of Proprietary Rights. The Employee hereby assigns,\ntransfers and conveys to the Company, and shall assign, transfer and convey to the\nCompany, all right, title and interest in and to all inventions, ideas, improvements,\ndesigns, processes, patent rights, copyrights, trademarks, service marks, trade\nnames, trade secrets, trade dress, data, discoveries and other proprietary assets and\nproprietary rights in and of the ork Product (the "Proprietary Rights") for\nthe\nCompany's exclusive ownership and use, together with all rights to sue and recover\nfor past and future infringement or misappropriation thereof provided that if an\naffiliate of the Company is the owner thereof; such assignment, transfer and\nconveyance shall be made to such affiliate, which shall enjoy exclusive ownership\nand use, together with all rights to sue and recover for past and future infringement\nor misappropriation thereof.\n(iv) Further Instruments. At the request of the Company (or its affiliates, as\nthe case may be), at all times during Employee's employment with the Company\nand thereafter, the Employee will promptly and fully assist the Company (or its\naffiliates, as the case may be) in effecting the purpose of the foregoing assignment,\nincluding but not limited to the further acts of executing any and all documents\nnecessary to secure for the Company (or its affiliates, as the case may be) such\nProprietary Rights and other rights to all Work Product and all confidential\ninformation related thereto, providing cooperation and giving testimony.\n(v) Inapplicability of Section 3(d) In Certain Circumstances. The Company\nexpressly acknowledges and agrees that, and the Employee is hereby advised that,\nthis Section 3(d) does not apply to any invention for which no equipment, supplies,\nfacilities, trade secret information or Confidentia Information of the Company or\nits affiliates was used and which was developed entirely on the Employee's own\ntime, unless (3) the invention relates to the business of the Company or its affiliates,\nor to the Company's or its affiliates' actual or demonstrably anticipated research\nor development or (3) the invention results from or is suggested by any work\nperformed or observed by the Employee for the Company or any of its affiliates.\n4.\nRemedies: Employee acknowledges that the restrictions contained in\nparagraphs 2 and 3 of this Agreement are reasonable in light of Employee's\nposition with the Company and are necessary to protect the Company from\nunfair competitive harm. Employee further acknowledges that any breach of\nthis A greement will result in immediate irreparable harm to the Company and\nthat the Company shall be entitled to immediate injunctive relief upon any\nsuch breach, in addition to all other legal and equitable remedies the\nCompany may have. This greement is to be construed as separate and\nindependent from any other obligations and any claim by Employee asserted\nagainst the Company and shall not constitute a defense to the enforcement of\nthis Agreement In the event any court determines that the restrictions set\nforth herein are unreasonable or unenforceable for any reason, the court will\nenforce such restrictions to the fullest extent permitted by law.\n5.\nPosition of Employment Employee expressly acknowledges that the\nobligations contained in paragraphs 2 and 3 of this Agreement shall remain in\nfull force and effect during Employee's employment in any position with the\nCompany, with respect to any Confidential Information of the Company.\n6.\nValidity: In the event any provision of this Agreement, or portion\nthereof, is held by a court of competent jurisdiction to be unreasonable,\narbitrary, or against public policy, then such provision, or portion thereof,\nshall be enforced against the Employee to the extent the court deems to be\nreasonable or in accordance with public policy. In the event any provision of\nthis Agreement shall for any reason be wholly invalid, or unenforceable in any\nrespect, such invalidity shall not affect the validity of any remaining portion\nwhich shall remain in full force and effect as if the invalid portion was never\npart of this Agreement.\n7.\nMiscellaneous: Employee acknowledges that the Employee ha\ncarefully read this entire Agreement and fully agrees with and understands all\nof the provisions the hereof. This A greement supersedes all prior agreements\nbetween the Company and the Employee regarding the subject matter of this\nAgreement and constitutes the entire agreement between the parties with\nrespect to such subject matter. The Employee further agrees that in executing\nthis Agreement, the Employee has not relied on any written or oral\nrepresentations, promises, conditions, or understandings of the Company,\nexpress or implied, except as set forth herein. This Agreement may not be\namended or modified other than in writing signed by the parties. This\nAgreement and any disputes arising thereunder shall be governed by the laws\nof the State of Ohio without regard to any State's choice of law, rules or\nprinciples. Employee and the Company expressly agree that any legal action\narising out of or related to this Agreement will be brought exclusively in the\nstate or federal courts located in Summit County, Ohio, and each party\nexpressly consents to the jurisdiction of such courts and waives any and all\nobjections to the jurisdiction or venue thereof. This Agreement may be\nassigned to any successor-in-interest to the business of the Company without\nthe consent of Employee, but may not be assigned by Employee to any third\nparty. This Agreement is not a contract of employment for any definite period\nand Employee acknowledges that Employee's employment with the Company\nis terminable at-will.\nIN WITNESS WHEREOF, the parties have hereunto executed this\nAgreement as of the date first set forth above.\nMyers Industries, Inc.\nBy: /s/ John C. Orr\nDate: September 1, 2012\nEmployee\nSignature /s/ Greggory W. Branning\nPrint Name: Gregg Branning\nDate: September 1, 2012\n7268294 vl	EXECUTION VERSION\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS NON-COMPETITION and CONFIDENTIALITY AGREEMENT (“Agreement”) is made and\nentered into this 1st day of September, 2012, by and between Myers Industries, Inc., an Ohio Corporation (the\n“Company”), and Gregg Branning (the “Employee”).\nRECITALS:\n1. The Company is a diversified international manufacturer of polymer products for the industrial,\nagricultural, automotive, commercial and consumer markets and distributor of tools, equipment and supplies\nfor tire service and under vehicle repair. The Company currently operates through four (4) business segments\nincluding Lawn & Garden, Material Handling, Distribution, and Engineered Products (collectively, the\n“Business Segments”).\n2. Employee is being employed by the Company as its Executive Vice President, Chief Financial\nOfficer and Secretary.\n3. The Company has acquired and established valuable and competitively sensitive information\nthrough its business, research, development and practices, which information is described more extensively\nherein, and is collectively referred to as the “Confidential Information.” To protect the business interests of the\nCompany and the competitive advantage derived from the Confidential Information, it is necessary that such\nConfidential Information be kept secret and confidential.\n4. The Employee, from and after the commencement of employment with the Company, will be\nengaged in activities such that the Employee will have extensive access to and become familiar with, and may\ndevelop or contribute to, some or all of the Company’s Confidential Information in all of its Business\nSegments. In addition, Employee may have extensive contact with the customers of the Company and may\ndevelop relationships with such customers on behalf of the Company. The Employee recognizes that the\nConfidential Information and the Company’s customer relationships are vital to the success of the Company\nand that extensive, irreparable harm would result were such Confidential Information to be disclosed outside\nthe Company or if Employee were to engage in activity which competes with the Company.\nNOW, THEREFORE, in view of the above and in consideration for the mutual covenants and promises\nset forth below, the parties agree as follows:\n1.Confidential Information: For purposes of this Agreement, Confidential\nInformation includes, but is not limited to, business plans and strategies,\nmarketing plans and strategies, customer lists, customer purchasing\ninformation, customer contact information, product design and development\ninformation, methods of operation, technical services, non-public financial\ninformation, business development plans and strategies, system analyses,\nquality control programs and information, computer programs, software and\nhardware configurations, information regarding the terms of the Company’s\nrelationships with suppliers, pricing information, processes and techniques,\ncreations, innovations, and any other information which the Company may\nreasonably treat or designate as confidential from time to time. The Company\nbelieves that all Confidential Information constitutes trade secret information\nunder applicable law. Employee shall, however, maintain the confidentiality of\nall Confidential Information whether or not ultimately determined to be a\ntrade secret.\n2. Confidentiality and Non-Competition:\nA. Covenants\n(a) Employee acknowledges that the Company would be irreparably injured\nand the good will of the Company would be irreparably damaged if Employee were to\nbreach the covenants set forth in this Paragraph 2. Employee further acknowledges\nthat the covenants set forth in this Paragraph 2 are reasonable in scope and duration\nand do not unreasonably restrict Employee’s association with other business entities,\neither as an employee or otherwise as set forth herein. For purposes of this Paragraph\n2, the Company will include all its Business Segments now or subsequently existing.\n(b) During Employee’s employment with the Company and any time thereafter,\nexcept as may be required by law, Employee shall not, directly or indirectly, disclose,\ndisseminate, reveal, divulge, discuss, copy or otherwise use or suffer to be used, any\nConfidential Information other than in the authorized scope of Employee’s\nemployment with the Company. Upon termination of employment, no matter what the\nreason for such termination, and at any other time upon the request of the Company,\nEmployee shall immediately return to the Company any and all Confidential\nInformation, and all other materials, property and information in tangible or\nelectronic form concerning the business and affairs of the Company and/or its\ncustomers.\n(c) Employee agrees that during Employee’s employment and for a period of\nthree (3) years following the termination of such employment, no matter what the\nreason for such termination, Employee will not directly or indirectly, whether on\nEmployee’s own behalf or on behalf of any other person or entity, do or suffer any of\nthe following\n(i) Own, manage, control, participate in the ownership, management or\ncontrol of, be employed or engaged by or otherwise affiliated or associated as a\nconsultant, independent contractor or otherwise with, any person or business entity\nthat competes with the Company in the United States or in any geographic area(s)\noutside the United States in which the Company does business (the “Restricted\nTerritory”). Without limiting the generality and scope of the foregoing, any\nbusiness entity or person providing products or services competitive with those of\nthe Company in the Restricted Territory from either inside or outside the\nRestricted Territory is deemed to be competing within the Restricted Territory. For\npurposes of this Agreement, the phrase “competes with” means providing services\nand products which are the same as, similar to, reasonably substitutable for, or\notherwise capable of displacing the services and products of the Company.\nNotwithstanding the foregoing, Employee’s passive investment ownership of not\nmore than one percent (1%) of the stock of any publicly traded corporation shall\nnot be deemed a violation of this provision.\n(ii) Solicit, provide, sell, attempt to provide or sell, or otherwise deliver or\nsupply any products or services which compete with the products or services of the\nCompany to any person or business entity which is or was a customer or\nprospective customer of the Company at any time during the last thirty-six (36)\nmonths of Employee’s employment, nor shall Employee in any way assist any other\nperson or entity in such activity. For purposes of this Agreement, (1) the phrase\n“products or services which compete with the products or services of the Company\nmeans products or services which are the same as, similar to, reasonably\nsubstitutable for, or otherwise capable of displacing the products or services of the\nCompany; and (2) the term “prospective customer” means any person or entity the\nCompany solicited, called on or otherwise specifically identified as a target for the\nsale of its products or services.\n(iii) Solicit, hire or otherwise engage the services of any person who then\ncurrently is, or who at any time during Employee’s employment with the Company\nwas, an employee, consultant or independent contractor of the Company, or\notherwise encourage or induce any such person to discontinue his or her\nrelationship with the Company. Employee will not engage in any business\nrelationship with any subcontractor, supplier or service provider of the Company\nwhich interferes with the Company’s relationship with such subcontractor, supplier\nor service provider, or in any way causes such subcontractor, supplier or service\nprovider to reduce, alter, modify or discontinue the business it (they) do(es) with\nthe Company or any of its affiliates.\n3.\nInventions: Employee hereby expressly agrees that all research\ndiscoveries, inventions and innovations (whether or not reduced to practice or\ndocumented), improvements, developments, methods, designs, analyses,\ndrawings, reports and all similar or related information (whether patentable\nor unpatentable, and whether or not reduced to writing), Confidential\nInformation and copyrightable works, and similar and related information (in\nwhatever form or medium), which (3) either (i) relate to the Company’s or its\naffiliates’ actual or anticipated business, research and development or existing\nor future products or services or (ii) result from or are suggested by any work\nperformed by the Employee for the Company or its affiliates and (3) are\nconceived, developed, made or contributed to in whole or in part by the\nEmployee during his employment (“Work Product”) shall be and remain the\nsole and exclusive property of the Company or such affiliate.\n(ii)\nWork Made for Hire. The Employee acknowledges that, unless\notherwise agreed in writing by the Company, all Work Product eligible for any\nform of copyright, trademark or patent protection made or contributed to in whole\nor in part by the Employee within the scope of Employee’s employment by the\ncompany during the period of Employee’s employment with the Company shall be\ndeemed a “work made for hire” and shall be owned by the Company or its\naffiliates, as applicable.\n(iii)\nAssignment of Proprietary Rights. The Employee hereby assigns,\ntransfers and conveys to the Company, and shall assign, transfer and convey to the\nCompany, all right, title and interest in and to all inventions, ideas, improvements,\ndesigns, processes, patent rights, copyrights, trademarks, service marks, trade\nnames, trade secrets, trade dress, data, discoveries and other proprietary assets and\nproprietary rights in and of the Work Product (the “Proprietary Rights”) for the\nCompany’s exclusive ownership and use, together with all rights to sue and recover\nfor past and future infringement or misappropriation thereof provided that if an\naffiliate of the Company is the owner thereof; such assignment, transfer and\nconveyance shall be made to such affiliate, which shall enjoy exclusive ownership\nand use, together with all rights to sue and recover for past and future infringement\nor misappropriation thereof.\n(iv) Further Instruments. At the request of the Company (or its affiliates, as\nthe case may be), at all times during Employee’s employment with the Company\nand thereafter, the Employee will promptly and fully assist the Company (or its\naffiliates, as the case may be) in effecting the purpose of the foregoing assignment,\nincluding but not limited to the further acts of executing any and all documents\nnecessary to secure for the Company (or its affiliates, as the case may be) such\nProprietary Rights and other rights to all Work Product and all confidential\ninformation related thereto, providing cooperation and giving testimony.\n(v) Inapplicability of Section 3(d) In Certain Circumstances. The Company\nexpressly acknowledges and agrees that, and the Employee is hereby advised that,\nthis Section 3(d) does not apply to any invention for which no equipment, supplies,\nfacilities, trade secret information or Confidential Information of the Company or\nits affiliates was used and which was developed entirely on the Employee’s own\ntime, unless (3) the invention relates to the business of the Company or its affiliates,\nor to the Company’s or its affiliates’ actual or demonstrably anticipated research\nor development or (3) the invention results from or is suggested by any work\nperformed or observed by the Employee for the Company or any of its affiliates.\n4. Remedies: Employee acknowledges that the restrictions contained in\nparagraphs 2 and 3 of this Agreement are reasonable in light of Employee’s\nposition with the Company and are necessary to protect the Company from\nunfair competitive harm. Employee further acknowledges that any breach of\nthis Agreement will result in immediate irreparable harm to the Company and\nthat the Company shall be entitled to immediate injunctive relief upon any\nsuch breach, in addition to all other legal and equitable remedies the\nCompany may have. This Agreement is to be construed as separate and\nindependent from any other obligations and any claim by Employee asserted\nagainst the Company and shall not constitute a defense to the enforcement of\nthis Agreement. In the event any court determines that the restrictions set\nforth herein are unreasonable or unenforceable for any reason, the court will\nenforce such restrictions to the fullest extent permitted by law.\n5. Position of Employment: Employee expressly acknowledges that the\nobligations contained in paragraphs 2 and 3 of this Agreement shall remain in\nfull force and effect during Employee’s employment in any position with the\nCompany, with respect to any Confidential Information of the Company.\n6. Validity: In the event any provision of this Agreement, or portion\nthereof, is held by a court of competent jurisdiction to be unreasonable,\narbitrary, or against public policy, then such provision, or portion thereof,\nshall be enforced against the Employee to the extent the court deems to be\nreasonable or in accordance with public policy. In the event any provision of\nthis Agreement shall for any reason be wholly invalid, or unenforceable in any\nrespect, such invalidity shall not affect the validity of any remaining portion\nwhich shall remain in full force and effect as if the invalid portion was never\npart of this Agreement.\n7.\nMiscellaneous: Employee acknowledges that the Employee has\ncarefully read this entire Agreement and fully agrees with and understands all\nof the provisions the hereof. This Agreement supersedes all prior agreements\nbetween the Company and the Employee regarding the subject matter of this\nAgreement and constitutes the entire agreement between the parties with\nrespect to such subject matter. The Employee further agrees that in executing\nthis Agreement, the Employee has not relied on any written or oral\nrepresentations, promises, conditions, or understandings of the Company,\nexpress or implied, except as set forth herein. This Agreement may not be\namended or modified other than in writing signed by the parties. This\nAgreement and any disputes arising thereunder shall be governed by the laws\nof the State of Ohio without regard to any State’s choice of law, rules or\nprinciples. Employee and the Company expressly agree that any legal action\narising out of or related to this Agreement will be brought exclusively in the\nstate or federal courts located in Summit County, Ohio, and each party\nexpressly consents to the jurisdiction of such courts and waives any and all\nobjections to the jurisdiction or venue thereof. This Agreement may be\nassigned to any successor-in-interest to the business of the Company without\nthe consent of Employee, but may not be assigned by Employee to any third\nparty. This Agreement is not a contract of employment for any definite period\nand Employee acknowledges that Employee’s employment with the Company\nis terminable at-will.\nIN WITNESS WHEREOF, the parties have hereunto executed this\nAgreement as of the date first set forth above.\nDate: _September 1, 2012__________\nMyers Industries, Inc.\nBy: _/s/ John C. Orr_______________________\nDate: _September 1, 2012___________\nEmployee\nSignature: _/s/ Greggory W. Branning________\nPrint Name: Gregg Branning\n7268294 v1
981d2e4a955098701903f8e2e712691e.pdf	effective_date jurisdiction party term	EXHIBIT 10.1\nApogee Enterprises, Inc.\n4400 West 78th Street, Suite 520\nMinneapolis, Minnesota 55435\nFebruary 8, 2019\nRe: Confidentiality Agreement\nLadies and Gentlemen:\nThis Confidentiality Agreement (this “Agreement”), dated as of February 8, 2019, is made by and among Apogee Enterprises, Inc., a\nMinnesota corporation (the “Company”), and Engaged Capital LLC, Engaged Capital Flagship Master Fund, LP, Engaged Capital\nCo-Invest VIII, LP, Engaged Capital Flagship Fund, LP, Engaged Capital Flagship Fund, Ltd., Engaged Capital Holdings, LLC and\nGlenn W. Welling (collectively, “Engaged Capital,” “you” or “your”).\n1. Upon the terms of, and subject to the conditions in, this Agreement, you and your Representatives (as defined below), may\nreceive certain information about the Company that is confidential and proprietary, the disclosure of which could harm the Company\nand its Affiliates (as defined below).\n2. As a condition to you or any of your Representatives being furnished such information, you agree to treat, and to instruct your\nRepresentatives to treat, any information, whether written or oral, concerning the Company or any of its Affiliates that is furnished to\nyou or your Representatives (such information herein collectively referred to as the “Confidential Information”) in accordance with\nthe provisions of this Agreement, and to take or abstain from taking, and to instruct your Representatives to take or abstain from\ntaking, certain other actions as set forth herein. The term “Confidential Information” includes, without limitation, all notes, analyses,\ndata or other documents furnished to you or your Representatives or prepared by you or your Representatives to the extent such\nmaterials reflect or are based upon, in whole or in part, the Confidential Information. The term “Confidential Information” does not\ninclude information that (a) was within your or any of your Representatives’ possession on a non-confidential basis (or any\nconfidentiality restrictions have lapsed) prior to it being furnished to you by the Company or its Representatives; (b) is or becomes\navailable to you or your Representatives from a source other than the Company or its Representatives, provided that such source is\nnot known by you or your Representatives to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation to, the Company or any of its Affiliates that prohibits such disclosure; (c) is or becomes generally available to the public\nother than as a result of a disclosure by you or your Representatives in violation of this Agreement; or (d) has been or is\nindependently developed by you or your Representatives without the use of the Confidential Information or in violation of the terms\nof this Agreement. For the avoidance of doubt, the term “Confidential Information” does not include the existence and the terms and\nconditions of this Agreement.\n3. You hereby agree that you shall keep the Confidential Information confidential and shall use the Confidential Information solely\nfor the purpose of monitoring and evaluating your investment in the Company; provided, however, that you may disclose the\nConfidential Information (a) to any of your Representatives who need to know such information for the purpose of monitoring and\nevaluating your investment in the Company, or (b) as the Company may otherwise consent in writing. Any such Representatives shall\n(i) be informed by you of the confidential nature of the Confidential Information, (ii) be subject to a contractual, legal or fiduciary\nobligation to keep the Confidential Information strictly confidential, and (iii) be advised of the terms of this Agreement. You agree to\nbe responsible for any breaches of any of the provisions of this Agreement by any of your Representatives as if they were party\nhereto (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy the\nCompany may have against your Representatives with respect to such breach).\n4. Notwithstanding anything to the contrary provided in this Agreement, in the event you or any of your Representatives receive a\nrequest or are required by deposition, interrogatory, request for documents, subpoena, court order, similar judicial process, civil\ninvestigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required\ndisclosure, an “External Demand”) or are otherwise required pursuant to applicable law, regulation or the rules of any national\nsecurities exchange (as determined based on advice of your external legal counsel) to disclose all or any part of the Confidential\nInformation, you agree, and you agree to instruct your Representatives, to the extent permitted by applicable law, to (a) promptly\nnotify the Company of the existence, terms and circumstances surrounding such External Demand or other requirement and (b) in the\ncase of any External Demand, cooperate with the Company, at the Company’s reasonable request and sole expense, in seeking a\nprotective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or\nother remedy is not obtained or not available or that the Company waives compliance with the provisions hereof, (i) you or your\nRepresentatives, as the case may be, may disclose only that portion of the Confidential Information which you or your\nRepresentatives are advised by your external legal counsel is legally required to be disclosed, and you or your Representatives shall\ninform the recipient of such Confidential Information of the existence of this Agreement and the confidential nature of such\nConfidential Information and exercise reasonable efforts to obtain assurance that confidential treatment will be accorded, and (ii) you\nand your Representatives shall not be liable for such disclosure, unless such disclosure was caused by or resulted from a previous\ndisclosure by you or your Representatives in violation of this Agreement. For the avoidance of doubt, it is understood and agreed that\nthere shall be no “applicable law,” “regulation” or “rule” requiring you or your Representatives to disclose any Confidential\nInformation solely by virtue of the fact that, absent such disclosure, you or your Representatives would be prohibited from\npurchasing, selling or engaging in derivative or other voluntary transactions with respect to the securities of the Company or you or\nyour Representatives would be unable to file any proxy materials or tender or exchange offer materials in compliance with Section 14\nof the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or the rules promulgated thereunder.\n5. Except as required by law, regulation, regulator or legal process, until the occurrence of a Cleansing Event (as defined below)\nneither Engaged Capital nor the Company shall directly or indirectly, including through their Representatives, make or issue, or cause\nto be made or issued,\n2\nany public disclosure or announcement that comments upon the other, including the filing or furnishing of any document with the\nU.S. Securities and Exchange Commission (the “SEC”) or discussions with the press. For the avoidance of doubt, the Company\nacknowledges and agrees that you may file an amendment to your Schedule 13D in respect of the Company regarding the fact that\nthis Agreement has been entered into and attaching a copy of this Agreement as an exhibit thereto (a “Schedule 13D Amendment”).\nPrior to filing a Schedule 13D Amendment, if any, you shall provide the Company and its Representatives with a reasonable\nopportunity to review and propose comments to the Schedule 13D Amendment and consider in good faith any comments of the\nCompany and its Representatives. The Company will be responsible for the compliance of its Representatives with this Agreement.\nFor the avoidance of doubt, Engaged Capital acknowledges and agrees that the Company may file a Form 8-K regarding the fact that\nthis Agreement has been entered into and attaching a copy of this Agreement as an exhibit thereto (a “Form 8-K”). Prior to filing a\nForm 8-K, if any, the Company shall provide Engaged Capital and its Representatives with a reasonable opportunity to review and\npropose comments to the Form 8-K and consider in good faith any comments of Engaged Capital and its Representatives.\n6. Promptly upon request by the Company, you and your Representatives shall either (at your option) (a) destroy the Confidential\nInformation and any copies thereof, or (b) return to the Company all Confidential Information and any copies thereof, and, in either\ncase, confirm in writing to the Company that all such material has been destroyed or returned, as applicable, in compliance with this\nAgreement; provided, however, that you and your Representatives shall be permitted to retain Confidential Information to the extent\nnecessary to comply with applicable law, professional standards or such person’s document retention policies of general application,\nor to the extent disclosed pursuant to an External Demand. Notwithstanding the destruction or return of Confidential Information, you\nand your Representatives shall continue to be bound by the obligations contained herein with respect to any Confidential Information\nretained by you or your Representatives for such period of time as you and such Representatives retain such Confidential Information\nuntil such Confidential Information is returned or destroyed or no longer constitutes Confidential Information pursuant to the terms\nhereof.\n7. Other than in connection with a Cleansing Event permitted by Paragraph 10, you agree that until 5:30 PM New York City time\non the Termination Date (as defined below), neither you nor your Representatives may, directly or indirectly, without the prior\napproval of the Company’s board of directors (the “Board”) (a) make any public announcement with respect to the Company’s\nmanagement, policies, strategies, equity securities (except for disclosures required under the Exchange Act, or disclosures in response\nto statements made by the Company identifying you and your Affiliates) or the Board, or take any action that would reasonably be\nexpected to require the Company to make such a public announcement; (b) nominate, give notice of an intent to nominate or\nrecommend for nomination a person for election at any meeting of the Company’s shareholders (a “Shareholder Meeting”) at which\nthe Company’s directors are to be elected; (c) knowingly initiate, encourage or participate in any solicitation of proxies in respect of\n(i) any election contest or removal contest with respect to the Company’s directors or (ii) any shareholder proposal for consideration\nat, or other business brought before, any Shareholder Meeting; (d) knowingly initiate, encourage or participate in any “withhold” or\nsimilar campaign with respect to any Shareholder Meeting; (e) form, join or in any way knowingly participate in any group or\nagreement of any kind with respect to any voting\n3\nsecurities of the Company in connection with any election or removal contest with respect to the Company’s directors or any\nshareholder proposal or other business brought before any Shareholder Meeting; (f) seek publicly, alone or in concert with others, to\namend any provision of the Company’s charter or bylaws; (g) demand an inspection of the Company’s books and records pursuant to\nSection 302A.461 of the Minnesota Business Corporation Act; (h) make or seek to make an offer or proposal (with or without\nconditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other\nbusiness combination involving the Company, or encourage, facilitate, initiate or support any third party in making or seeking to\nmake such an offer or proposal; (i) violate any other such restrictions you agree to in writing (including email) prior to or subsequent\nto the signing of this Agreement or (j) enter into any negotiations, agreements or understandings with any third party with respect to\nthe foregoing clauses (a) through (i) of this Paragraph 7, or knowingly advise, assist, encourage or seek to persuade any third party to\ntake any action with respect to any of the foregoing clauses (a) through (j) of this Paragraph 7. Nothing in this Paragraph 7 shall be\ndeemed to prohibit you or your Affiliates or Representatives from communicating privately with the Company’s directors, officers\nand Representatives so long as such private communications would not be reasonably determined to trigger public disclosure\nobligations for any party and would not circumvent any of your obligations under this Paragraph 7.\n8. The Company shall hold its 2019 annual meeting of shareholders (the “2019 Annual Meeting”) no earlier than 45 days after the\nTermination Date. The Company shall consider any notice from Engaged Capital pursuant to Section 1.09 of the Company’s\nAmended and Restated By-laws with respect to the 2019 Annual Meeting timely if such notice is received by the Company by 5:30\nPM New York City time on the 15th day following the Termination Date. In addition to any other access rights granted to you by the\nCompany in writing (including email) prior to or subsequent to the signing of this Agreement, prior to the Termination Date and\nsubject to applicable laws, the Company shall provide Glenn W. Welling reasonable opportunities to meet with the Chief Executive\nOfficer of the Company or the Chairman of the Board on a periodic basis, including reasonable access to certain advisors of the\nCompany; provided, however, that the Company shall not be required to provide any such opportunities that would unreasonably\ninterfere with the business or operations of the Company.\n9. This Agreement shall terminate at 5:30 PM New York City time on the date that is six months from the effective date of this\nAgreement, except that the Company may terminate this Agreement at any time by giving Engaged Capital written notice (including\nby email) (the effective date of termination, the “Termination Date”); provided, however, that you and your Representatives shall\nmaintain in accordance with the confidentiality obligations set forth herein any Confidential Information constituting trade secrets for\nsuch longer time as such information constitutes a trade secret of the Company or any of its Affiliates under applicable law; and\nprovided, further, (x) that any liability for breach of this Agreement prior to such termination and (y) the provisions of Paragraph 8\nthrough Paragraph 11 and Paragraph 13 through Paragraph 15 shall survive such termination.\n10. Engaged Capital acknowledges that it is aware (and Engaged Capital shall also advise each of its Representatives that is\nprovided with Confidential Information) of its obligations under applicable United States securities laws. No later than 8:30 AM New\nYork City time on the second business day following the Termination Date, the Company shall publicly disclose\n4\nany and all material nonpublic information delivered to Engaged Capital by means of a filing on Form 8-K or other periodic report\nrequired or permitted to be filed under applicable laws an appropriate summary description of any Confidential Information that the\nCompany determines, based on advice of the Company’s outside counsel, constitutes material nonpublic information as of such date.\nIn the event that the Company fails to comply with the foregoing obligation by 8:30 AM New York City time on the second business\nday following the Termination Date, then Engaged Capital shall thereafter be permitted to publicly disclose without liability a\nsummary that reflects any Confidential Information that it in good faith believes constitutes material nonpublic information regarding\nthe Company. The occurrence of any of the actions described in the preceding two sentences (each a “Cleansing Event”) shall\nconstitute definitive proof that Engaged Capital is free from any trading restriction imposed by or associated with this Agreement and\nnot in possession of material non-public information of the Company, and the Company and its Representatives shall not directly or\nindirectly, publicly (including in court) or privately (including via confidential communications with the SEC) take any contrary\nposition. In addition, nothing contained in this Agreement shall restrict the ability of Engaged Capital from purchasing, selling or\notherwise trading securities of the Company pursuant to any Rule 10b5-1 under the Exchange Act trading plan adopted prior to the\nexecution of this Agreement.\n11. The parties acknowledge and agree that money damages would not be a sufficient remedy for any breach (or threatened breach)\nof this Agreement and that the non-breaching party shall be entitled to equitable relief, including injunction and specific performance,\nas a remedy for any such breach (or threatened breach), without proof of damages, and the parties further agree to waive, and to\ninstruct their Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy.\nSuch remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies\navailable at law or in equity. If any action, suit or proceeding is initiated by a party to enforce the provisions hereof, the prevailing\nparty in such action, suit or proceeding shall be entitled to reimbursement of all costs and expenses, including attorneys’ fees,\nincurred by such prevailing party in connection therewith.\n12. You agree that (a) none of the Company or its Representatives shall have any liability to you or any of your Representatives\nresulting from the selection, use or content of the Confidential Information by you or your Representatives and (b) none of the\nCompany or its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of any\nConfidential Information. All Confidential Information shall remain the property of the Company and its Affiliates. Neither you nor\nany of your Representatives shall by virtue of any disclosure of and/or your or their use of any Confidential Information acquire any\nrights with respect thereto, all of which rights shall remain exclusively with the Company and its Affiliates. No failure or delay by\nany party or any of its Representatives in exercising any right, power or privilege under this Agreement shall operate as a waiver\nthereof, and no modification hereof shall be effective, unless in writing and signed by the parties hereto.\n13. All notices and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be\nin writing and shall be deemed to have been given (a) when delivered by hand, with written confirmation of receipt; (b) upon sending\nif sent by electronic mail to the electronic mail addresses below, with confirmation of receipt from the receiving party by electronic\nmail; (c) one day after being sent by a nationally recognized\n5\novernight carrier to the addresses set forth below or (d) when actually delivered if sent by any other method that results in delivery,\nwith written confirmation of receipt:\nIf to the Company:\nwith mandatory copies (which shall not\nconstitute notice) to:\nApogee Enterprises, Inc.\n4400 West 78th Street, Suite 520\nMinneapolis, MN 55435\nAttention: Patricia A. Beithon\nEmail: pbeithon@apog.com\nSidley Austin LLP\n787 Seventh Avenue, 23rd Floor\nNew York, NY 10019\nAttention: Kai H. Liekefett\nScott R. Williams\nEmail: kliekefett@sidley.com\nswilliams@sidley.com\nIf to Engaged Capital:\nwith mandatory copies (which shall not\nconstitute notice) to:\nEngaged Capital, LLC\n610 Newport Center Drive, Suite 250\nNewport Beach, CA 92660\nAttention: Glenn W. Welling\nEmail: glenn@engagedcapital.com\nOlshan Frome Wolosky LLP\n1325 Avenue of the Americas\nNew York, NY 10019\nAttention: Steve Wolosky\nRyan P. Nebel\nEmail: swolosky@olshanlaw.com\nrnebel@olshanlaw.com\n14. The illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its\nlegality, validity or enforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other\nprovision.\n15. This Agreement and all matters arising out of or relating to this Agreement or the validity thereof shall be governed by, and\nconstrued in accordance with, the laws of the State of Minnesota, without giving effect to its principles or rules regarding conflicts of\nlaws. The parties agree that the State and Federal courts in Hennepin County, Minnesota shall have exclusive jurisdiction for\npurposes of any action, suit or proceeding arising hereunder. Each party hereto hereby irrevocably submits with regard to any such\naction or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the\naforesaid courts and agrees that it will not bring any action relating to this Agreement in any court other than the aforesaid courts.\nEach party hereto hereby irrevocably waives, and agrees not to assert in any action or proceeding with respect to this Agreement, any\nclaim that it is not personally subject to the jurisdiction of the above-named courts for any reason, (b) any claim that it or its property\nis exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through\nservice of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and\n(c) to the fullest extent permitted by applicable legal requirements, any claim that (i) the suit, action or proceeding in such court is\nbrought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper or (iii) this Agreement, or the subject\nmatter hereof, may not be enforced in or by\n6\nsuch courts. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN\nANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.\n16. As used in this Agreement: (a) the terms “Affiliate” and “Associate” (and any plurals thereof) shall have the meanings ascribed\nto such terms under Rule 12b-2 promulgated by the SEC under the Exchange Act, and (b) the term “Representatives” shall mean a\nperson’s Affiliates and Associates and its and their respective directors, officers, employees, partners, members, managers,\nconsultants, accountants, attorneys, legal or other advisors, agents and other representatives. Notwithstanding anything in this\nAgreement to the contrary, without the prior written consent of the Company, you shall not directly or indirectly share any\nConfidential Information with any of your Representatives other than (i) your officers, directors (including any members of your\nadvisory board) and employees, (ii) Olshan Frome Wolosky LLP, and (iii) such other advisors that the Company and you agreed\nupon in writing (including email).\n17. This Agreement constitutes the only agreement between the parties hereto with respect to the subject matter hereof and\nsupersedes all prior agreements, understandings, negotiations and discussions, whether oral or written. This Agreement may be\namended only by an agreement in writing executed by the parties hereto.\n18. This Agreement may be executed in separate counterparts (including by fax, .jpeg, .gif, .bmp and .pdf), each of which when so\nexecuted shall be an original, but all such counterparts shall together constitute one and the same instrument.\n19. Each party to this Agreement acknowledges that it has been represented by counsel of its choice throughout all negotiations that\nhave preceded the execution of this Agreement, and that it has executed this Agreement with the advice of such counsel. Each party\nand its counsel cooperated and participated in the drafting and preparation of this Agreement, and any and all drafts relating thereto\nexchanged among the parties hereto shall be deemed the work product of all of the parties and may not be construed against any party\nby reason of its drafting or preparation. Accordingly, any rule of law or any legal decision that would require interpretation of any\nambiguities in this Agreement against any party that drafted or prepared it is of no application and is hereby expressly waived by each\nof the parties hereto, and any controversy over interpretations of this Agreement shall be decided without regards to events of drafting\nor preparation.\nVery truly yours,\nAPOGEE ENTERPRISES, INC.\nBy: /s/ Patricia A. Beithon\nName: Patricia A. Beithon\nTitle:\nGeneral Counsel and\nSecretary\n7\nACCEPTED AND AGREED TO BY:\nEngaged Capital Flagship Master Fund, LP\nBy: Engaged Capital, LLC\nGeneral Partner\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nTitle:\nFounder and Chief\nInvestment Officer\nEngaged Capital Co-Invest VIII, LP\nBy: Engaged Capital, LLC\nGeneral Partner\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nTitle:\nFounder and Chief\nInvestment Officer\nEngaged Capital Flagship Fund, LP\nBy: Engaged Capital, LLC\nGeneral Partner\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nTitle:\nFounder and Chief\nInvestment Officer\nEngaged Capital Flagship Fund, Ltd.\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nTitle:\nDirector\nEngaged Capital, LLC\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nTitle:\nFounder and Chief\nInvestment Officer\nEngaged Capital Holdings, LLC\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nTitle:\nSole Member\n/s/ Glenn W. Welling\nGlenn W. Welling	EXHIBIT 10.1\nApogee Enterprises, Inc.\n4400 West 78th Street, Suite 520\nMinneapolis, Minnesota 55435\nFebruary 8, 2019\nRe: Confidentiality Agreement\nLadies and Gentlemen:\nThis Confidentiality Agreement (this ”A ggement"), dated as of February 8, 2019, is made by and among Apogee Enterprises, Inc., a\nMinnesota corporation (the ” ompany”), and Engaged Capital LLC, Engaged Capital Flagship Master Fund, LP, Engaged Capital\nCo-Invest VIII, LP, Engaged Capital Flagship Fund, LP, Engaged Capital Flagship Fund, Ltd., Engaged Capital Holdings, LLC and\nGlenn W. Welling (collectively, ”Engaged Capital," ”m” or ”yo_ ’).\n1. Upon the terms of, and subject to the conditions in, this Agreement, you and your Representatives (as defined below), may\nreceive certain information about the Company that is confidential and proprietary, the disclosure of which could harm the Company\nand its Affiliates (as defined below).\n2. As a condition to you or any of your Representatives being furnished such information, you agree to treat, and to instruct your\nRepresentatives to treat, any information, whether written or oral, concerning the Company or any of its Affiliates that is furnished to\nyou or your Representatives (such information herein collectively referred to as the ”Confidential Information”) in accordance with\nthe provisions of this Agreement, and to take or abstain from taking, and to instruct your Representatives to take or abstain from\ntaking, certain other actions as set forth herein. The term ”Confidential Information” includes, without limitation, all notes, analyses,\ndata or other documents furnished to you or your Representatives or prepared by you or your Representatives to the extent such\nmaterials reflect or are based upon, in whole or in part, the Confidential Information. The term ”Confidential Information” does not\ninclude information that (a) was within your or any of your Representatives' possession on a non-confidential basis (or any\nconfidentiality restrictions have lapsed) prior to it being furnished to you by the Company or its Representatives; (b) is or becomes\navailable to you or your Representatives from a source other than the Company or its Representatives, provided that such source is\nnot known by you or your Representatives to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation to, the Company or any of its Affiliates that prohibits such disclosure; (c) is or becomes generally available to the public\nother than as a result of a disclosure by you or your Representatives in violation of this Agreement; or (d) has been or is\nindependently developed by you or your Representatives without the use of the Confidential Information or in violation of the terms\nof this Agreement. For the avoidance of doubt, the term ”Confidential Information” does not include the existence and the terms and\nconditions of this Agreement.\n \n3. Y ou hereby agree that you shall keep the Confidential Information confidential and shall use the Confidential Information solely\nfor the purpose of monitoring and evaluating your investment in the Company; provided, however, that you may disclose the\nConfidential Information (a) to any of your Representatives who need to know such information for the purpose of monitoring and\nevaluating your investment in the Company, or (b) as the Company may otherwise consent in writing. Any such Representatives shall\n(i) be informed by you of the confidential nature of the Confidential Information, (ii) be subject to a contractual, legal or fiduciary\nobligation to keep the Confidential Information strictly confidential, and (iii) be advised of the terms of this Agreement. Y ou agree to\nbe responsible for any breaches of any of the provisions of this A greement by any of your Representatives as if they were party\nhereto (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy the\nCompany may have against your Representatives with respect to such breach).\n4. Notwithstanding anything to the contrary provided in this Agreement, in the event you or any of your Representatives receive a\nrequest or are required by deposition, interrogatory, request for documents, subpoena, court order, similar judicial process, civil\ninvestigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required\ndisclosure, an ”Extemal Demand”) or are otherwise required pursuant to applicable law, regulation or the rules of any national\nsecurities exchange (as determined based on advice of your external legal counsel) to disclose all or any part of the Confidential\nInformation, you agree, and you agree to instruct your Representatives, to the extent permitted by applicable law, to (a) promptly\nnotify the Company of the existence, terms and circumstances surrounding such External Demand or other requirement and (b) in the\ncase of any External Demand, cooperate with the Company, at the Company' s reasonable request and sole expense, in seeking a\nprotective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or\nother remedy is not obtained or not available or that the Company waives compliance with the provisions hereof, (i) you or your\nRepresentatives, as the case may be, may disclose only that portion of the Confidential Information which you or your\nRepresentatives are advised by your external legal counsel is legally required to be disclosed, and you or your Representatives shall\ninform the recipient of such Confidential Information of the existence of this Agreement and the confidential nature of such\nConfidential Information and exercise reasonable efforts to obtain assurance that confidential treatment will be accorded, and (ii) you\nand your Representatives shall not be liable for such disclosure, unless such disclosure was caused by or resulted from a previous\ndisclosure by you or your Representatives in violation of this A greement. For the avoidance of doubt, it is understood and agreed that\nthere shall be no ”applicable law,” ”regulation” or ”rule” requiring you or your Representatives to disclose any Confidential\nInformation solely by virtue of the fact that, absent such disclosure, you or your Representatives would be prohibited from\npurchasing, selling or engaging in derivative or other voluntary transactions with respect to the securities of the Company or you or\nyour Representatives would be unable to file any proxy materials or tender or exchange offer materials in compliance with Section 14\nof the Securities Exchange Act of 1934, as amended (the ”Exchange Act”) or the rules promulgated thereunder.\n5. Except as required by law, regulation, regulator or legal process, until the occurrence of a Cleansing Event (as defined below)\nneither Engaged Capital nor the Company shall directly or indirectly, including through their Representatives, make or issue, or cause\nto be made or issued,\n \nany public disclosure or announcement that comments upon the other, including the filing or furnishing of any document with the\nUS. Securities and Exchange Commission (the ”fi”) or discussions with the press. For the avoidance of doubt, the Company\nacknowledges and agrees that you may file an amendment to your Schedule 13D in respect of the Company regarding the fact that\nthis Agreement has been entered into and attaching a copy of this Agreement as an exhibit thereto (a ”Schedule 13D Amendment”).\nPrior to filing a Schedule 13D Amendment, if any, you shall provide the Company and its Representatives with a reasonable\nopportunity to review and propose comments to the Schedule 13D Amendment and consider in good faith any comments of the\nCompany and its Representatives. The Company will be responsible for the compliance of its Representatives with this Agreement.\nFor the avoidance of doubt, Engaged Capital acknowledges and agrees that the Company may file a Form 8-K regarding the fact that\nthis Agreement has been entered into and attaching a copy of this Agreement as an exhibit thereto (a ”Form 8-K”). Prior to filing a\nForm 8-K, if any, the Company shall provide Engaged Capital and its Representatives with a reasonable opportunity to review and\npropose comments to the Form 8-K and consider in good faith any comments of Engaged Capital and its Representatives.\n6. Promptly upon request by the Company, you and your Representatives shall either (at your option) (a) destroy the Confidential\nInformation and any copies thereof, or (b) return to the Company all Confidential Information and any copies thereof, and, in either\ncase, confirm in writing to the Company that all such material has been destroyed or returned, as applicable, in compliance with this\nAgreement; provided, however, that you and your Representatives shall be permitted to retain Confidential Information to the extent\nnecessary to comply with applicable law, professional standards or such person' s document retention policies of general application,\nor to the extent disclosed pursuant to an External Demand. Notwithstanding the destruction or return of Confidential Information, you\nand your Representatives shall continue to be bound by the obligations contained herein with respect to any Confidential Information\nretained by you or your Representatives for such period of time as you and such Representatives retain such Confidential Information\nuntil such Confidential Information is returned or destroyed or no longer constitutes Confidential Information pursuant to the terms\nhereof.\n7. Other than in connection with a Cleansing Event permitted by Paragraph 10, you agree that until 5:30 PM New Y ork City time\non the Termination Date (as defined below), neither you nor your Representatives may, directly or indirectly, without the prior\napproval of the Company' s board of directors (the ”Board”) (a) make any public announcement with respect to the Company' s\nmanagement, policies, strategies, equity securities (except for disclosures required under the Exchange Act, or disclosures in response\nto statements made by the Company identifying you and your Affiliates) or the Board, or take any action that would reasonably be\nexpected to require the Company to make such a public announcement; (b) nominate, give notice of an intent to nominate or\nrecommend for nomination a person for election at any meeting of the Company' s shareholders (a ” hareholder Meeting”) at which\nthe Company's directors are to be elected; (c) knowingly initiate, encourage or participate in any solicitation of proxies in respect of\n(i) any election contest or removal contest with respect to the Company's directors or (ii) any shareholder proposal for consideration\nat, or other business brought before, any Shareholder Meeting; (d) knowingly initiate, encourage or participate in any ”withhold" or\nsimilar campaign with respect to any Shareholder Meeting; (e) form, join or in any way knowingly participate in any group or\nagreement of any kind with respect to any voting\n \n \nsecurities of the Company in connection with any election or removal contest with respect to the Company' s directors or any\nshareholder proposal or other business brought before any Shareholder Meeting; (f) seek publicly, alone or in concert with others, to\namend any provision of the Company' s charter or bylaws; (g) demand an inspection of the Company' s books and records pursuant to\nSection 302A .461 of the Minnesota Business Corporation Act; (h) make or seek to make an offer or proposal (with or without\nconditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other\nbusiness combination involving the Company, or encourage, facilitate, initiate or support any third party in making or seeking to\nmake such an offer or proposal; (1) violate any other such restrictions you agree to in writing (including email) prior to or subsequent\nto the signing of this Agreement or (j) enter into any negotiations, agreements or understandings with any third party with respect to\nthe foregoing clauses (a) through (i) of this Paragraph 7, or knowingly advise, assist, encourage or seek to persuade any third party to\ntake any action with respect to any of the foregoing clauses (a) through (j) of this Paragraph 7. Nothing in this Paragraph 7 shall be\ndeemed to prohibit you or your Affiliates or Representatives from communicating privately with the Company' s directors, officers\nand Representatives so long as such private communications would not be reasonably determined to trigger public disclosure\nobligations for any party and would not circumvent any of your obligations under this Paragraph 7.\n8. The Company shall hold its 2019 annual meeting of shareholders (the ” 019 Annual Meeting") no earlier than 45 days after the\nTermination Date. The Company shall consider any notice from Engaged Capital pursuant to Section 1.09 of the Company's\nAmended and Restated By-laws with respect to the 2019 Annual Meeting timely if such notice is received by the Company by 5:30\nPM New Y ork City time on the 15th day following the Termination Date. In addition to any other access rights granted to you by the\nCompany in writing (including email) prior to or subsequent to the signing of this A greement, prior to the Termination D ate and\nsubject to applicable laws, the Company shall provide Glenn W. Welling reasonable opportunities to meet with the Chief Executive\nOfficer of the Company or the Chairman of the Board on a periodic basis, including reasonable access to certain advisors of the\nCompany; provided, however, that the Company shall not be required to provide any such opportunities that would unreasonably\ninterfere with the business or operations of the Company.\n9. This Agreement shall terminate at 5:30 PM New Y ork City time on the date that is six months from the effective date of this\nAgreement, except that the Company may terminate this Agreement at any time by giving Engaged Capital written notice (including\nby email) (the effective date of termination, the ”Termination Date”); provided, however, that you and your Representatives shall\nmaintain in accordance with the confidentiality obligations set forth herein any Confidential Information constituting trade secrets for\nsuch longer time as such information constitutes a trade secret of the Company or any of its Affiliates under applicable law; and\nprovided, further, (x) that any liability for breach of this Agreement prior to such termination and (y) the provisions of Paragraph 8\nthrough Paragraph 11 and Paragraph 13 through Paragraph 15 shall survive such termination.\n10. Engaged Capital acknowledges that it is aware (and Engaged Capital shall also advise each of its Representatives that is\nprovided with Confidential Information) of its obligations under applicable United States securities laws. No later than 8:30 AM New\nY ork City time on the second business day following the Termination D ate, the Company shall publicly disclose\n \nany and all material nonpublic information delivered to Engaged Capital by means of a filing on Form 8-K or other periodic report\nrequired or permitted to be filed under applicable laws an appropriate summary description of any Confidential Information that the\nCompany determines, based on advice of the Company' s outside counsel, constitutes material nonpublic information as of such date.\nIn the event that the Company fails to comply with the foregoing obligation by 8:30 AM New Y ork City time on the second business\nday following the Termination Date, then Engaged Capital shall thereafter be permitted to publicly disclose without liability a\nsummary that reflects any Confidential Information that it in good faith believes constitutes material nonpublic information regarding\nthe Company. The occurrence of any of the actions described in the preceding two sentences (each a ”Cleansing Event”) shall\nconstitute definitive proof that Engaged Capital is free from any trading restriction imposed by or associated with this Agreement and\nnot in possession of material non-public information of the Company, and the Company and its Representatives shall not directly or\nindirectly, publicly (including in court) or privately (including via confidential communications with the SEC) take any contrary\nposition. In addition, nothing contained in this Agreement shall restrict the ability of Engaged Capital from purchasing, selling or\notherwise trading securities of the Company pursuant to any Rule 10b5-1 under the Exchange Act trading plan adopted prior to the\nexecution of this Agreement.\n11. The parties acknowledge and agree that money damages would not be a sufficient remedy for any breach (or threatened breach)\nof this Agreement and that the non-breaching party shall be entitled to equitable relief, including injunction and specific performance,\nas a remedy for any such breach (or threatened breach), without proof of damages, and the parties further agree to waive, and to\ninstruct their Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy.\nSuch remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies\navailable at law or in equity. If any action, suit or proceeding is initiated by a party to enforce the provisions hereof, the prevailing\nparty in such action, suit or proceeding shall be entitled to reimbursement of all costs and expenses, including attorneys’ fees,\nincurred by such prevailing party in connection therewith.\n12. Y ou agree that (a) none of the Company or its Representatives shall have any liability to you or any of your Representatives\nresulting from the selection, use or content of the Confidential Information by you or your Representatives and (b) none of the\nCompany or its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of any\nConfidential Information. All Confidential Information shall remain the property of the Company and its Affiliates. Neither you nor\nany of your Representatives shall by virtue of any disclosure of and/or your or their use of any Confidential Information acquire any\nrights with respect thereto, all of which rights shall remain exclusively with the Company and its Affiliates. No failure or delay by\nany party or any of its Representatives in exercising any right, power or privilege under this Agreement shall operate as a waiver\nthereof, and no modification hereof shall be effective, unless in writing and signed by the parties hereto.\n13. All notices and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be\nin writing and shall be deemed to have been given (a) when delivered by hand, with written confirmation of receipt; (b) upon sending\nif sent by electronic mail to the electronic mail addresses below, with confirmation of receipt from the receiving party by electronic\nmail; (c) one day after being sent by a nationally recognized\n \novernight carrier to the addresses set forth below or (d) when actually delivered if sent by any other method that results in delivery,\nwith written confirmation of receipt:\nIf to the Company: with mandatory copies (which shall not\nconstitute notice) to:\nApogee Enterprises, Inc. Sidley Austin LLP\n4400 West 78th Street, Suite 520 787 Seventh Avenue, 23rd Floor\nMinneapolis, MN 55435 New Y ork, NY 10019\nAttention: Patricia A. Beithon Attention: Kai H. Liekefett\nEmail: pbeithon@ apog.com Scott R. Williams\nEmail: kliekefett@ sidley.com\nswilliams@ sidley.com\nIf to Engaged Capital: with mandatory copies (which shall not\nconstitute notice) to:\nEngaged Capital, LLC Olshan Frome Wolosky LLP\n610 Newport Center Drive, Suite 250 1325 Avenue of the Americas\nNewport Beach, CA 92660 New Y ork, NY 10019\nAttention: Glenn W. W elling Attention: Steve W olosky\nEmail: glenn@ engagedcapital.com Ryan P. Nebel\nEmail: swolosky@ olshanlaw.com\nmebel@ olshanlaw.com\n14. The illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its\nlegality, validity or enforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other\nprovision.\n15. This Agreement and all matters arising out of or relating to this Agreement or the validity thereof shall be governed by, and\nconstrued in accordance with, the laws of the State of Minnesota, without giving effect to its principles or rules regarding conflicts of\nlaws. The parties agree that the State and Federal courts in Hennepin County, Minnesota shall have exclusive jurisdiction for\npurposes of any action, suit or proceeding arising hereunder. Each party hereto hereby irrevocably submits with regard to any such\naction or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the\naforesaid courts and agrees that it will not bring any action relating to this Agreement in any court other than the aforesaid courts.\nEach party hereto hereby irrevocably waives, and agrees not to assert in any action or proceeding with respect to this A greement, any\nclaim that it is not personally subject to the jurisdiction of the above-named courts for any reason, (b) any claim that it or its property\nis exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through\nservice of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and\n(c) to the fullest extent permitted by applicable legal requirements, any claim that (i) the suit, action or proceeding in such court is\nbrought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper or (iii) this Agreement, or the subject\nmatter hereof, may not be enforced in or by\n \nsuch courts. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN\nANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.\n16. As used in this A greement: (a) the terms ”A ffiliate" and ”A ssociate” (and any plurals thereof) shall have the meanings ascribed\nto such terms under Rule 12b-2 promulgated by the SEC under the Exchange Act, and (b) the term ”Representatives" shall mean a\nperson' s Affiliates and Associates and its and their respective directors, officers, employees, partners, members, managers,\nconsultants, accountants, attorneys, legal or other advisors, agents and other representatives. Notwithstanding anything in this\nAgreement to the contrary, without the prior written consent of the Company, you shall not directly or indirectly share any\nConfidential Information with any of your Representatives other than (i) your officers, directors (including any members of your\nadvisory board) and employees, (ii) Olshan Frome Wolosky LLP, and (iii) such other advisors that the Company and you agreed\nupon in writing (including email).\n17. This Agreement constitutes the only agreement between the parties hereto with respect to the subject matter hereof and\nsupersedes all prior agreements, understandings, negotiations and discussions, whether oral or written. This Agreement may be\namended only by an agreement in writing executed by the parties hereto.\n18. This Agreement may be executed in separate counterparts (including by fax, .jpeg, .gif, .bmp and .pdf), each of which when so\nexecuted shall be an original, but all such counterparts shall together constitute one and the same instrument.\n19. Each party to this Agreement acknowledges that it has been represented by counsel of its choice throughout all negotiations that\nhave preceded the execution of this Agreement, and that it has executed this Agreement with the advice of such counsel. Each party\nand its counsel cooperated and participated in the drafting and preparation of this Agreement, and any and all drafts relating thereto\nexchanged among the parties hereto shall be deemed the work product of all of the parties and may not be construed against any party\nby reason of its drafting or preparation. Accordingly, any rule of law or any legal decision that would require interpretation of any\nambiguities in this Agreement against any party that drafted or prepared it is of no application and is hereby expressly waived by each\nof the parties hereto, and any controversy over interpretations of this Agreement shall be decided without regards to events of drafting\nor preparation.\nVery truly yours,\nAPOGEE ENTERPRISES, INC.\nBy: /s/ Patricia A. B eithon\nName: Patricia A. B eithon\nG eneral C ounsel and\nTitle: Secretary\n \nACCEPTED AND AGREED TO BY:\nEngaged Capital Flagship Master Fund, LP\nBy: Engaged Capital, LLC\nG eneral Partner\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nFounder and Chief\nTitle: Investment Officer\nEngaged Capital Co-Invest VIII, LP\nBy: Engaged Capital, LLC\nG eneral Partner\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nFounder and Chief\nTitle: Investment Officer\nEngaged Capital Flagship Fund, LP\nBy: Engaged Capital, LLC\nG eneral Partner\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nFounder and Chief\nTitle: Investment Officer\nEngaged Capital Flagship Fund, Ltd.\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nTitle: Director\n \nEngaged Capital, LLC\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nFounder and Chief\nTitle: Investment Officer\nEngaged Capital Holdings, LLC\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nTitle: Sole Member\n/s/ Glenn W. Welling\nGlenn W. Welling	EXHIBIT 10.1\npogee Enterprises, Inc.\n4400 West 78th Street, Suite 520\nMinneapolis, Minnesota 55435\nFebruary 8, 2019\nRe: Confidentiality Agreement\nLadies and Gentlemen:\nThis Confidentiality Agreement (this greement"), dated as of February 8, 2019, is made by and among pogee Enterprises, Inc., a\nMinnesota corporation (the "Company"), and Engaged Capital LLC, Engaged Capital Flagship Master Fund, LP, Engaged Capital\nCo-Invest VIII, LP, Engaged Capital Flagship Fund, LP, Engaged Capital Flagship Fund, Ltd., Engaged Capital Holdings, LLC and\nGlenn W. Welling (collectively, "Engaged Capital," "you" or "your").\n1. Upon the terms of, and subject to the conditions in, this A greement, you and your Representatives (as defined below) may\nreceive certain information about the Company that is confidential and proprietary, the disclosure of which could harm the Company\nand its Affiliates (as defined below).\n2. As a condition to you or any of your Representatives being furnished such information, you agree to treat, and to instruct your\nRepresentatives to treat, any information, whether written or oral, concerning the Company or any of its Affiliates that is furnished to\nyou or your Representatives (such information herein collectively referred to as the "Confidential Information") in accordance with\nthe provisions of this greement, and to take or abstain from taking, and to instruct your Representatives to take or abstain from\ntaking, certain other actions as set forth herein. The term "Confidential Information" includes, without limitation, all notes, analyses,\ndata or other documents furnished to you or your Representatives or prepared by you or your Representatives to the extent such\nmaterials reflect or are based upon, in whole or in part, the Confidential Information. The term "Confidential Information" does not\ninclude information that (a) was within your or any of your Representatives' possession on a non-confidential basis (or any\nconfidentiality restrictions have lapsed) prior to it being furnished to you by the Company or its Representatives; (b) is or becomes\navailable to you or your Representatives from a source other than the Company or its Representatives, provided that such source is\nnot known by you or your Representatives to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation to, the Company or any of its ffiliates that prohibits such disclosure; (c) is or becomes generally available to the public\nother than as a result of a disclosure by you or your Representatives in violation of this Agreement; or (d) has been or is\nindependently developed by you or your Representatives without the use of the Confidential Information or in violation of the terms\nof this A greement. For the avoidance of doubt, the term "Confidential Information" does not include the existence and the terms and\nconditions of this greement.\n3.\nou hereby agree that you shall keep the Confidential Information confidential and shall use the Confidential Information solely\nfor the purpose of monitoring and evaluating your investment in the Company; provided, however, that you may disclose the\nConfidential Information (a) to any of your Representatives who need to know such information for the purpose of monitoring and\nevaluating your investment in the Company, or (b) as the Company may otherwise consent in writing. Any such Representatives shall\n(i) be informed by you of the confidential nature of the Confidential Information, (ii) be subject to a contractual, legal or fiduciary\nobligation to keep the Confidential Information strictly confidential, and (iii) be advised of the terms of this A greement. Y ou agree to\nbe responsible for any breaches of any of the provisions of this A greement by any of your Representatives as if they were party\nhereto (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy the\nCompany may have against your Representatives with respect to such breach).\n4.\nNotwithstanding anything to the contrary provided in this greement, in the event you or any of your Representatives receive\na\nrequest or are required by deposition, interrogatory, request for documents, subpoena court order, similar judicial process, civil\ninvestigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required\ndisclosure, an "External Demand") or are otherwise required pursuant to applicable law, regulation or the rules of any national\nsecurities exchange (as determined based on advice of your external legal counsel) to disclose all or any part of the Confidential\nInformation, you agree, and you agree to instruct your Representatives, to the extent permitted by applicable law, to (a) promptly\nnotify the Company of the existence, terms and circumstances surrounding such External Demand or other requirement and (b) in the\ncase of any External Demand, cooperate with the Company, at the Company's reasonable request and sole expense, in seeking a\nprotective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or\nother remedy is not obtained or not available or that the Company waives compliance with the provisions hereof, (i) you or your\nRepresentatives, as the case may be, may disclose only that portion of the Confidential Information which you or your\nRepresentatives are advised by your external legal counsel is legally required to be disclosed, and you or your Representatives shall\ninform the recipient of such Confidential Information of the existence of this A greement and the confidential nature of such\nConfidential Information and exercise reasonable efforts to obtain assurance that confidential treatment will be accorded, and (ii) you\nand your Representatives shall not be liable for such disclosure, unless such disclosure was caused by or resulted from a previous\ndisclosure by you or your Representatives in violation of this A greement. For the avoidance of doubt, it is understood and agreed that\nthere shall be no "applicable law," "regulation" or "rule" requiring you or your Representatives to disclose any Confidentia\nInformation solely by virtue of the fact that, absent such disclosure, you or your Representatives would be prohibited from\npurchasing, selling or engaging in derivative or other voluntary transactions with respect to the securities of the Company or you or\nyour Representatives would be unable to file any proxy materials or tender or exchange offer materials in compliance with Section 14\nof the Securities Exchange A ct of 1934, as amended (the "Exchange Act") or the rules promulgated thereunder.\n5. Except as required by law, regulation, regulator or legal process, until the occurrence of a Cleansing Event (as defined below)\nneither Engaged Capital nor the Company shall directly or indirectly, including through their Representatives, make or issue, or cause\nto be made or issued,\n2\nany public disclosure or announcement that comments upon the other, including the filing or furnishing of any document with the\nU.S. Securities and Exchange Commission (the "SEC") or discussions with the press. For the avoidance of doubt, the Company\nacknowledges and agrees that you may file an amendment to your Schedule 13D in respect of the Company regarding the fact that\nthis A greement has been entered into and attaching a copy of this greement as an exhibit thereto (a "Schedule 13D A mendment").\nPrior to filing a Schedule 13D mendment, if any, you shall provide the Company and its Representatives with a reasonable\nopportunity to review and propose comments to the Schedule 13D Amendment and consider in good faith any comments of the\nCompany and its Representatives. The Company will be responsible for the compliance of its Representatives with this Agreement.\nFor the avoidance of doubt, Engaged Capital acknowledges and agrees that the Company may file a Form 8-K regarding the fact that\nthis A greement has been entered into and attaching a copy of this A greement as an exhibit thereto (a "Form Prior to filing\na\nForm 8-K, if any, the Company shall provide Engaged Capital and its Representatives with a reasonable opportunity to review and\npropose comments to the Form 8-K and consider in good faith any comments of Engaged Capital and its Representatives.\n6. Promptly upon request by the Company, you and your Representatives shall either (at your option) (a) destroy the Confidential\nInformation and any copies thereof, or (b) return to the Company all Confidential Information and any copies thereof, and, in either\ncase, confirm in writing to the Company that all such material has been destroyed or returned, as applicable, in compliance with this\nA greement; provided, however, that you and your Representatives shall be permitted to retain Confidential Information to the extent\nnecessary to comply with applicable law, professional standards or such person's document retention policies of general application,\nor to the extent disclosed pursuant to an External Demand. Notwithstanding the destruction or return of Confidential Information, you\nand\nyour Representatives shall continue to be bound by the obligations contained herein with respect to any Confidential Information\nretained by you or your Representatives for such period of time as you and such Representatives retain such Confidential Information\nuntil such Confidential Information is retumed or destroyed or no longer constitutes Confidential Information pursuant to the terms\nhereof.\n7.\nOther than in connection with a Cleansing Event permitted by Paragraph 10, you agree that until 5:30 PM New Y ork City time\non the Termination Date (as defined below), neither you nor your Representatives may, directly or indirectly, without the prior\napproval of the Company's board of directors (the "Board") (a) make any public announcement with respect to the Company's\nmanagement, policies, strategies, equity securities (except for disclosures required under the Exchange ct, or disclosures in response\nto statements made by the Company identifying you and your ffiliates) or the Board, or take any action that would reasonably be\nexpected to require the Company to make such a public announcement; (b) nominate, give notice of an intent to nominate or\nrecommend for nomination a person for election at any meeting of the Company's shareholders (a "Shareholder Meeting") at which\nthe Company's directors are to be elected; (c) knowingly initiate, encourage or participate in any solicitation of proxies in respect of\n(i) any election contest or removal contest with respect to the Company's directors or (ii) any shareholder proposal for consideration\nat,\nor\nother\nbusiness\nbrought\nbefore,\nany\nShareholder\nMeeting;\n(d)\nknowingly\ninitiate,\nencourage\nor\nparticipate\nin\nany\n"withhold"\nor\nsimilar campaign with respect to any Shareholder Meeting; (e) form join or in any way knowingly participate in any group or\nagreement of any kind with respect to any voting\n3\nsecurities of the Company in connection with any election or removal contest with respect to the Company's directors or any\nshareholder proposal or other business brought before any Shareholder Meeting; (f) seek publicly, alone or in concert with others, to\namend any provision of the Company's charter or bylaws; (g) demand an inspection of the Company's books and records pursuant to\nSection 302A.461 of the Minnesota Business Corporation Act; (h) make or seek to make an offer or proposal (with or without\nconditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other\nbusiness combination involving the Company, or encourage, facilitate, initiate or support any third party in making or seeking to\nmake such an offer or proposal; (i) violate any other such restrictions you agree to in writing (including email) prior to or subsequent\nto the signing of this A greement or (j) enter into any negotiations, agreements or understandings with any third party with respect to\nthe foregoing clauses (a) through (i) of this Paragraph 7, or knowingly advise, assist, encourage or seek to persuade any third party to\ntake any action with respect to any of the foregoing clauses (a) through (j) of this Paragraph 7. Nothing in this Paragraph 7 shall be\ndeemed to prohibit you or your A ffiliates or Representatives from communicating privately with the Company's directors, officers\nand Representatives so long as such private communications would not be reasonably determined to trigger public disclosure\nobligations for any party and would not circumvent any of your obligations under this Paragraph 7.\n8. The Company shall hold its 2019 annual meeting of shareholders (the "2019 nnual Meeting") no earlier than 45 days after the\nTermination Date. The Company shall consider any notice from Engaged Capital pursuant to Section 1.09 of the Company's\nAmended and Restated By-laws with respect to the 2019 A nnual Meeting timely if such notice is received by the Company by 5:30\nPM New Y ork City time on the 15th day following the Termination Date. In addition to any other access rights granted to you by the\nCompany in writing (including email) prior to or subsequent to the signing of this A greement, prior to the Termination Date and\nsubject to applicable laws, the Company shall provide Glenn W. Welling reasonable opportunities to meet with the Chief Executive\nOfficer of the Company or the Chairman of the Board on a periodic basis, including reasonable access to certain advisors of the\nCompany; provided, however, that the Company shall not be required to provide any such opportunities that would unreasonably\ninterfere with the business or operations of the Company.\n9. This A greement shall terminate at 5:30 PM New Y ork City time on the date that is six months from the effective date of this\nA greement except that the Company may terminate this A greement at any time by giving Engaged Capital written notice (including\nby email) (the effective date of termination, the "Termination Date"); provided, however, that you and your Representatives shall\nmaintain in accordance with the confidentiality obligations set forth herein any Confidential Information constituting trade secrets for\nsuch longer time as such information constitutes a trade secret of the Company or any of its A ffiliates under applicable law; and\nprovided, further, (x) that any liability for breach of this A greement prior to such termination and (y) the provisions of Paragraph\n8\nthrough Paragraph 11 and Paragraph 13 through Paragraph 15 shall survive such termination.\n10. Engaged Capital acknowledges that it is aware (and Engaged Capital shall also advise each of its Representatives that is\nprovided with Confidential Information) of its obligations under applicable United States securities laws. No later than 8:30 AM New\nork City time on the second business day following the Termination ate, the Company shall publicly disclose\n4\nany and all material nonpublic information delivered to Engaged Capital by means of a filing on Form 8-K or other periodic report\nrequired or permitted to be filed under applicable laws an appropriate summary description of any Confidential Information that the\nCompany determines, based on advice of the Company's outside counsel, constitutes material nonpublic information as of such date.\nIn the event that the Company fails to comply with the foregoing obligation by 8:30 New Y ork City time on the second business\nday following the Termination Date, then Engaged Capital shall thereafter be permitted to publicly disclose without liability a\nsummary that reflects any Confidential Information that it in good faith believes constitutes material nonpublic information regarding\nthe Company. The occurrence of any of the actions described in the preceding two sentences (each a "Cleansing Event") shall\nconstitute definitive proof that Engaged Capital is free from any trading restriction imposed by or associated with this A greement and\nnot in possession of material non-public information of the Company, and the Company and its Representatives shall not directly or\nindirectly, publicly (including in court) or privately (including via confidential communications with the SEC) take any contrary\nposition. In addition, nothing contained in this Agreement shall restrict the ability of Engaged Capital from purchasing, selling or\notherwise trading securities of the Company pursuant to any Rule 10b5-1 under the Exchange A ct trading plan adopted prior to the\nexecution of this A greement.\n11. The parties acknowledge and agree that money damages would not be a sufficient remedy for any breach (or threatened breach)\nof this A greement and that the non-breaching party shall be entitled to equitable relief, including injunction and specific performance,\nas a remedy for any such breach (or threatened breach), without proof of damages, and the parties further agree to waive, and to\ninstruct their Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy.\nSuch remedies shall not be the exclusive remedies for a breach of this A greement, but will be in addition to all other remedies\navailable at law or in equity. If any action, suit or proceeding is initiated by a party to enforce the provisions hereof, the prevailing\nparty in such action, suit or proceeding shall be entitled to reimbursement of all costs and expenses, including attorneys' fees,\nincurred by such prevailing party in connection therewith.\n12. ou agree that (a) none of the Company or its Representatives shall have any liability to you or any of your Representatives\nresulting from the selection, use or content of the Confidential Information by you or your Representatives and (b) none of the\nCompany or its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of any\nConfidential Information All Confidential Information shall remain the property of the Company and its Affiliates. Neither you nor\nany of your Representatives shall by virtue of any disclosure of and/or your or their use of any Confidential Information acquire any\nrights with respect thereto, all of which rights shall remain exclusively with the Company and its A ffiliates. No failure or delay by\nany party or any of its Representatives in exercising any right, power or privilege under this A greement shall operate as a waiver\nthereof, and no modification hereof shall be effective, unless in writing and signed by the parties hereto.\n13. All notices and other communications to be given or delivered under or by reason of the provisions of this A greement shall be\nin writing and shall be deemed to have been given (a) when delivered by hand, with written confirmation of receipt; (b) upon sending\nif sent by electronic mail to the electronic mail addresses below, with confirmation of receipt from the receiving party by electronic\nmail; (c) one day after being sent by a nationally recognized\n5\novernight carrier to the addresses set forth below or (d) when actually delivered if sent by any other method that results in delivery,\nwith written confirmation of receipt:\nIf to the Company:\nwith mandatory copies (which shall not\nconstitute notice) to:\nApogee Enterprises, Inc.\nSidley Austin LLP\n4400 West 78th Street, Suite 520\n787 Seventh A venue, 23rd Floor\nMinneapolis, MN 55435\nNew Y ork, NY 10019\nA ttention: Patricia A. Beithon\nA ttention: Kai H. Liekefett\nEmail: pbeithon@apog.com\nScott R. Williams\nEmail: kliekefett@sidley.com\nswilliams@ sidley.com\nIf to Engaged Capital:\nwith mandatory copies (which shall not\nconstitute notice) to:\nEngaged Capital, LLC\nOlshan Frome Wolosky LLP\n610 Newport Center Drive, Suite 250\n1325 venue of the Americas\nNewport Beach, CA 92660\nNew Y ork, NY 10019\nA ttention: Glenn W Welling\nA ttention: Steve Wolosky\nEmail: glenn@engagedcapital.com\nRyan P. Nebel\nEmail: swolosky@olshanlaw.com\nmebel@olshanlaw.com\n14. The illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its\nlegality, validity or enforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other\nprovision.\n15. This A greement and all matters arising out of or relating to this A greement or the validity thereof shall be governed by, and\nconstrued in accordance with, the laws of the State of Minnesota, without giving effect to its principles or rules regarding conflicts of\nlaws. The parties agree that the State and Federal courts in Hennepin County, Minnesota shall have exclusive jurisdiction for\npurposes of any action, suit or proceeding arising hereunder. Each party hereto hereby irrevocably submits with regard to any such\naction or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the\naforesaid courts and agrees that it will not bring any action relating to this greement in any court other than the aforesaid courts.\nEach party hereto hereby irrevocably waives, and agrees not to assert in any action or proceeding with respect to this A greement, any\nclaim that it is not personally subject to the jurisdiction of the above-named courts for any reason, (b) any claim that it or its property\nis exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through\nservice of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and\n(c) to the fullest extent permitted by applicable legal requirements, any claim that (i) the suit action or proceeding in such court is\nbrought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper or (iii) this A greement, or the subject\nmatter hereof, may not be enforced in or by\n6\nsuch courts. EA CH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN\nANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.\n16.\nAs used in this A greement: (a) the terms Affiliate" and Associate" (and any plurals thereof) shall have the meanings ascribed\nto such terms under Rule 12b-2 promulgated by the SEC under the Exchange Act, and (b) the term "Representatives" shall mean a\nperson's ffiliates and A ssociates and its and their respective directors, officers, employees, partners, members, managers,\nconsultants, accountants, attorneys, legal or other advisors, agents and other representatives. Notwithstanding anything in this\nA greement to the contrary, without the prior written consent of the Company, you shall not directly or indirectly share any\nConfidential Information with any of your Representatives other than (i) your officers, directors (including any members of your\nadvisory board) and employees, (ii) Olshan Frome Wolosky LLP, and (iii) such other advisors that the Company and you agreed\nupon in writing (including email).\n17. This A greement constitutes the only agreement between the parties hereto with respect to the subject matter hereof and\nsupersedes all prior agreements, understandings, negotiations and discussions, whether oral or written. This A greement may be\namended only by an agreement in writing executed by the parties hereto.\n18. This A greement may be executed in separate counterparts (including by fax, jpeg, .gif, .bmp and .pdf), each of which when so\nexecuted shall be an original, but all such counterparts shall together constitute one and the same instrument.\n19. Each party to this A greement acknowledges that it has been represented by counsel of its choice throughout all negotiations that\nhave preceded the execution of this A greement, and that it has executed this A greement with the advice of such counsel. Each party\nand its counsel cooperated and participated in the drafting and preparation of this A greement, and any and all drafts relating thereto\nexchanged among the parties hereto shall be deemed the work product of all of the parties and may not be construed against any party\nby reason of its drafting or preparation. A ccordingly, any rule of law or any legal decision that would require interpretation of any\nambiguities in this A greement against any party that drafted or prepared it is of no application and is hereby expressly waived by each\nof the parties hereto, and any controversy over interpretations of this A greement shall be decided without regards to events of drafting\nor preparation.\nVery truly yours,\nAPOGEE ENTERPRISES, INC.\nBy: /s/ Patricia A. Beithon\nName: Patricia A. Beithon\nGeneral Counsel and\nTitle:\nSecretary\n7\nACCEPTED AND AGREED TO BY\nEngaged Capital Flagship Master Fund, LP\nBy: Engaged Capital, LLC\nGeneral Partner\nBy:\n/s/ Glenn W. Welling\nName:\nGlenn W. Welling\nFounder and Chief\nTitle:\nInvestment Officer\nEngaged Capital Co-Invest VIII, LP\nBy: Engaged Capital, LLC\nGeneral Partner\nBy:\n/s/ Glenn W. Welling\nName:\nGlenn W. Welling\nFounder and Chief\nTitle:\nInvestment Officer\nEngaged Capital Flagship Fund, LP\nBy: Engaged Capital, LLC\nGeneral Partner\nBy:\n/s/ Glenn W. Welling\nName:\nGlenn W. Welling\nFounder and Chief\nTitle: Investment Officer\nEngaged Capital Flagship Fund, Ltd.\nBy:\n/s/ Glenn W. Welling\nName:\nGlenn W. Welling\nTitle:\nDirector\nEngaged Capital, LLC\nBy:\n/s/ Glenn W. Welling\nName:\nGlenn W. Welling\nFounder and Chief\nTitle:\nInvestment Officer\nEngaged Capital Holdings, LLC\nBy:\n/s/ Glenn W. Welling\nName:\nGlenn W. Welling\nTitle:\nSole Member\n/s/ Glenn W. Welling\nGlenn W. Welling	EXHIBIT 10.1\nApogee Enterprises, Inc.\n4400 West 78th Street, Suite 520\nMinneapolis, Minnesota 55435\nFebruary 8, 2019\nRe: Confidentiality Agreement\nLadies and Gentlemen:\nThis Confidentiality Agreement (this “Agreement”), dated as of February 8, 2019, is made by and among Apogee Enterprises, Inc., a\nMinnesota corporation (the “Company”), and Engaged Capital LLC, Engaged Capital Flagship Master Fund, LP, Engaged Capital\nCo-Invest VIII, LP, Engaged Capital Flagship Fund, LP, Engaged Capital Flagship Fund, Ltd., Engaged Capital Holdings, LLC and\nGlenn W. Welling (collectively, “Engaged Capital,” “you” or “your”).\n1. Upon the terms of, and subject to the conditions in, this Agreement, you and your Representatives (as defined below), may\nreceive certain information about the Company that is confidential and proprietary, the disclosure of which could harm the Company\nand its Affiliates (as defined below).\n2. As a condition to you or any of your Representatives being furnished such information, you agree to treat, and to instruct your\nRepresentatives to treat, any information, whether written or oral, concerning the Company or any of its Affiliates that is furnished to\nyou or your Representatives (such information herein collectively referred to as the “Confidential Information”) in accordance with\nthe provisions of this Agreement, and to take or abstain from taking, and to instruct your Representatives to take or abstain from\ntaking, certain other actions as set forth herein. The term “Confidential Information” includes, without limitation, all notes, analyses,\ndata or other documents furnished to you or your Representatives or prepared by you or your Representatives to the extent such\nmaterials reflect or are based upon, in whole or in part, the Confidential Information. The term “Confidential Information” does not\ninclude information that (a) was within your or any of your Representatives’ possession on a non-confidential basis (or any\nconfidentiality restrictions have lapsed) prior to it being furnished to you by the Company or its Representatives; (b) is or becomes\navailable to you or your Representatives from a source other than the Company or its Representatives, provided that such source is\nnot known by you or your Representatives to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation to, the Company or any of its Affiliates that prohibits such disclosure; (c) is or becomes generally available to the public\nother than as a result of a disclosure by you or your Representatives in violation of this Agreement; or (d) has been or is\nindependently developed by you or your Representatives without the use of the Confidential Information or in violation of the terms\nof this Agreement. For the avoidance of doubt, the term “Confidential Information” does not include the existence and the terms and\nconditions of this Agreement.\n3. You hereby agree that you shall keep the Confidential Information confidential and shall use the Confidential Information solely\nfor the purpose of monitoring and evaluating your investment in the Company; provided, however, that you may disclose the\nConfidential Information (a) to any of your Representatives who need to know such information for the purpose of monitoring and\nevaluating your investment in the Company, or (b) as the Company may otherwise consent in writing. Any such Representatives shall\n(i) be informed by you of the confidential nature of the Confidential Information, (ii) be subject to a contractual, legal or fiduciary\nobligation to keep the Confidential Information strictly confidential, and (iii) be advised of the terms of this Agreement. You agree to\nbe responsible for any breaches of any of the provisions of this Agreement by any of your Representatives as if they were party\nhereto (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy the\nCompany may have against your Representatives with respect to such breach).\n4. Notwithstanding anything to the contrary provided in this Agreement, in the event you or any of your Representatives receive a\nrequest or are required by deposition, interrogatory, request for documents, subpoena, court order, similar judicial process, civil\ninvestigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required\ndisclosure, an “External Demand”) or are otherwise required pursuant to applicable law, regulation or the rules of any national\nsecurities exchange (as determined based on advice of your external legal counsel) to disclose all or any part of the Confidential\nInformation, you agree, and you agree to instruct your Representatives, to the extent permitted by applicable law, to (a) promptly\nnotify the Company of the existence, terms and circumstances surrounding such External Demand or other requirement and (b) in the\ncase of any External Demand, cooperate with the Company, at the Company’s reasonable request and sole expense, in seeking a\nprotective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or\nother remedy is not obtained or not available or that the Company waives compliance with the provisions hereof, (i) you or your\nRepresentatives, as the case may be, may disclose only that portion of the Confidential Information which you or your\nRepresentatives are advised by your external legal counsel is legally required to be disclosed, and you or your Representatives shall\ninform the recipient of such Confidential Information of the existence of this Agreement and the confidential nature of such\nConfidential Information and exercise reasonable efforts to obtain assurance that confidential treatment will be accorded, and (ii) you\nand your Representatives shall not be liable for such disclosure, unless such disclosure was caused by or resulted from a previous\ndisclosure by you or your Representatives in violation of this Agreement. For the avoidance of doubt, it is understood and agreed that\nthere shall be no “applicable law,” “regulation” or “rule” requiring you or your Representatives to disclose any Confidential\nInformation solely by virtue of the fact that, absent such disclosure, you or your Representatives would be prohibited from\npurchasing, selling or engaging in derivative or other voluntary transactions with respect to the securities of the Company or you or\nyour Representatives would be unable to file any proxy materials or tender or exchange offer materials in compliance with Section 14\nof the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or the rules promulgated thereunder.\n5. Except as required by law, regulation, regulator or legal process, until the occurrence of a Cleansing Event (as defined below)\nneither Engaged Capital nor the Company shall directly or indirectly, including through their Representatives, make or issue, or cause\nto be made or issued,\n2\nany public disclosure or announcement that comments upon the other, including the filing or furnishing of any document with the\nU.S. Securities and Exchange Commission (the “SEC”) or discussions with the press. For the avoidance of doubt, the Company\nacknowledges and agrees that you may file an amendment to your Schedule 13D in respect of the Company regarding the fact that\nthis Agreement has been entered into and attaching a copy of this Agreement as an exhibit thereto (a “Schedule 13D Amendment”).\nPrior to filing a Schedule 13D Amendment, if any, you shall provide the Company and its Representatives with a reasonable\nopportunity to review and propose comments to the Schedule 13D Amendment and consider in good faith any comments of the\nCompany and its Representatives. The Company will be responsible for the compliance of its Representatives with this Agreement.\nFor the avoidance of doubt, Engaged Capital acknowledges and agrees that the Company may file a Form 8-K regarding the fact that\nthis Agreement has been entered into and attaching a copy of this Agreement as an exhibit thereto (a “Form 8-K”). Prior to filing a\nForm 8-K, if any, the Company shall provide Engaged Capital and its Representatives with a reasonable opportunity to review and\npropose comments to the Form 8-K and consider in good faith any comments of Engaged Capital and its Representatives.\n6. Promptly upon request by the Company, you and your Representatives shall either (at your option) (a) destroy the Confidential\nInformation and any copies thereof, or (b) return to the Company all Confidential Information and any copies thereof, and, in either\ncase, confirm in writing to the Company that all such material has been destroyed or returned, as applicable, in compliance with this\nAgreement; provided, however, that you and your Representatives shall be permitted to retain Confidential Information to the extent\nnecessary to comply with applicable law, professional standards or such person’s document retention policies of general application,\nor to the extent disclosed pursuant to an External Demand. Notwithstanding the destruction or return of Confidential Information, you\nand your Representatives shall continue to be bound by the obligations contained herein with respect to any Confidential Information\nretained by you or your Representatives for such period of time as you and such Representatives retain such Confidential Information\nuntil such Confidential Information is returned or destroyed or no longer constitutes Confidential Information pursuant to the terms\nhereof.\n7. Other than in connection with a Cleansing Event permitted by Paragraph 10, you agree that until 5:30 PM New York City time\non the Termination Date (as defined below), neither you nor your Representatives may, directly or indirectly, without the prior\napproval of the Company’s board of directors (the “Board”) (a) make any public announcement with respect to the Company’s\nmanagement, policies, strategies, equity securities (except for disclosures required under the Exchange Act, or disclosures in response\nto statements made by the Company identifying you and your Affiliates) or the Board, or take any action that would reasonably be\nexpected to require the Company to make such a public announcement; (b) nominate, give notice of an intent to nominate or\nrecommend for nomination a person for election at any meeting of the Company’s shareholders (a “Shareholder Meeting”) at which\nthe Company’s directors are to be elected; (c) knowingly initiate, encourage or participate in any solicitation of proxies in respect of\n(i) any election contest or removal contest with respect to the Company’s directors or (ii) any shareholder proposal for consideration\nat, or other business brought before, any Shareholder Meeting; (d) knowingly initiate, encourage or participate in any “withhold” or\nsimilar campaign with respect to any Shareholder Meeting; (e) form, join or in any way knowingly participate in any group or\nagreement of any kind with respect to any voting\n3\nsecurities of the Company in connection with any election or removal contest with respect to the Company’s directors or any\nshareholder proposal or other business brought before any Shareholder Meeting; (f) seek publicly, alone or in concert with others, to\namend any provision of the Company’s charter or bylaws; (g) demand an inspection of the Company’s books and records pursuant to\nSection 302A.461 of the Minnesota Business Corporation Act; (h) make or seek to make an offer or proposal (with or without\nconditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other\nbusiness combination involving the Company, or encourage, facilitate, initiate or support any third party in making or seeking to\nmake such an offer or proposal; (i) violate any other such restrictions you agree to in writing (including email) prior to or subsequent\nto the signing of this Agreement or (j) enter into any negotiations, agreements or understandings with any third party with respect to\nthe foregoing clauses (a) through (i) of this Paragraph 7, or knowingly advise, assist, encourage or seek to persuade any third party to\ntake any action with respect to any of the foregoing clauses (a) through (j) of this Paragraph 7. Nothing in this Paragraph 7 shall be\ndeemed to prohibit you or your Affiliates or Representatives from communicating privately with the Company’s directors, officers\nand Representatives so long as such private communications would not be reasonably determined to trigger public disclosure\nobligations for any party and would not circumvent any of your obligations under this Paragraph 7.\n8. The Company shall hold its 2019 annual meeting of shareholders (the “2019 Annual Meeting”) no earlier than 45 days after the\nTermination Date. The Company shall consider any notice from Engaged Capital pursuant to Section 1.09 of the Company’s\nAmended and Restated By-laws with respect to the 2019 Annual Meeting timely if such notice is received by the Company by 5:30\nPM New York City time on the 15th day following the Termination Date. In addition to any other access rights granted to you by the\nCompany in writing (including email) prior to or subsequent to the signing of this Agreement, prior to the Termination Date and\nsubject to applicable laws, the Company shall provide Glenn W. Welling reasonable opportunities to meet with the Chief Executive\nOfficer of the Company or the Chairman of the Board on a periodic basis, including reasonable access to certain advisors of the\nCompany; provided, however, that the Company shall not be required to provide any such opportunities that would unreasonably\ninterfere with the business or operations of the Company.\n9. This Agreement shall terminate at 5:30 PM New York City time on the date that is six months from the effective date of this\nAgreement, except that the Company may terminate this Agreement at any time by giving Engaged Capital written notice (including\nby email) (the effective date of termination, the “Termination Date”); provided, however, that you and your Representatives shall\nmaintain in accordance with the confidentiality obligations set forth herein any Confidential Information constituting trade secrets for\nsuch longer time as such information constitutes a trade secret of the Company or any of its Affiliates under applicable law; and\nprovided, further, (x) that any liability for breach of this Agreement prior to such termination and (y) the provisions of Paragraph 8\nthrough Paragraph 11 and Paragraph 13 through Paragraph 15 shall survive such termination.\n10. Engaged Capital acknowledges that it is aware (and Engaged Capital shall also advise each of its Representatives that is\nprovided with Confidential Information) of its obligations under applicable United States securities laws. No later than 8:30 AM New\nYork City time on the second business day following the Termination Date, the Company shall publicly disclose\n4\nany and all material nonpublic information delivered to Engaged Capital by means of a filing on Form 8-K or other periodic report\nrequired or permitted to be filed under applicable laws an appropriate summary description of any Confidential Information that the\nCompany determines, based on advice of the Company’s outside counsel, constitutes material nonpublic information as of such date.\nIn the event that the Company fails to comply with the foregoing obligation by 8:30 AM New York City time on the second business\nday following the Termination Date, then Engaged Capital shall thereafter be permitted to publicly disclose without liability a\nsummary that reflects any Confidential Information that it in good faith believes constitutes material nonpublic information regarding\nthe Company. The occurrence of any of the actions described in the preceding two sentences (each a “Cleansing Event”) shall\nconstitute definitive proof that Engaged Capital is free from any trading restriction imposed by or associated with this Agreement and\nnot in possession of material non-public information of the Company, and the Company and its Representatives shall not directly or\nindirectly, publicly (including in court) or privately (including via confidential communications with the SEC) take any contrary\nposition. In addition, nothing contained in this Agreement shall restrict the ability of Engaged Capital from purchasing, selling or\notherwise trading securities of the Company pursuant to any Rule 10b5-1 under the Exchange Act trading plan adopted prior to the\nexecution of this Agreement.\n11. The parties acknowledge and agree that money damages would not be a sufficient remedy for any breach (or threatened breach)\nof this Agreement and that the non-breaching party shall be entitled to equitable relief, including injunction and specific performance,\nas a remedy for any such breach (or threatened breach), without proof of damages, and the parties further agree to waive, and to\ninstruct their Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy.\nSuch remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies\navailable at law or in equity. If any action, suit or proceeding is initiated by a party to enforce the provisions hereof, the prevailing\nparty in such action, suit or proceeding shall be entitled to reimbursement of all costs and expenses, including attorneys’ fees,\nincurred by such prevailing party in connection therewith.\n12. You agree that (a) none of the Company or its Representatives shall have any liability to you or any of your Representatives\nresulting from the selection, use or content of the Confidential Information by you or your Representatives and (b) none of the\nCompany or its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of any\nConfidential Information. All Confidential Information shall remain the property of the Company and its Affiliates. Neither you nor\nany of your Representatives shall by virtue of any disclosure of and/or your or their use of any Confidential Information acquire any\nrights with respect thereto, all of which rights shall remain exclusively with the Company and its Affiliates. No failure or delay by\nany party or any of its Representatives in exercising any right, power or privilege under this Agreement shall operate as a waiver\nthereof, and no modification hereof shall be effective, unless in writing and signed by the parties hereto.\n13. All notices and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be\nin writing and shall be deemed to have been given (a) when delivered by hand, with written confirmation of receipt; (b) upon sending\nif sent by electronic mail to the electronic mail addresses below, with confirmation of receipt from the receiving party by electronic\nmail; (c) one day after being sent by a nationally recognized\n5\novernight carrier to the addresses set forth below or (d) when actually delivered if sent by any other method that results in delivery,\nwith written confirmation of receipt:\nIf to the Company:\nwith mandatory copies (which shall not\nconstitute notice) to:\nApogee Enterprises, Inc.\n4400 West 78th Street, Suite 520\nMinneapolis, MN 55435\nAttention: Patricia A. Beithon\nEmail: pbeithon@apog.com\nSidley Austin LLP\n787 Seventh Avenue, 23rd Floor\nNew York, NY 10019\nAttention: Kai H. Liekefett\nScott R. Williams\nEmail: kliekefett@sidley.com\nswilliams@sidley.com\nIf to Engaged Capital:\nwith mandatory copies (which shall not\nconstitute notice) to:\nEngaged Capital, LLC\n610 Newport Center Drive, Suite 250\nNewport Beach, CA 92660\nAttention: Glenn W. Welling\nEmail: glenn@engagedcapital.com\nOlshan Frome Wolosky LLP\n1325 Avenue of the Americas\nNew York, NY 10019\nAttention: Steve Wolosky\nRyan P. Nebel\nEmail: swolosky@olshanlaw.com\nrnebel@olshanlaw.com\n14. The illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its\nlegality, validity or enforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other\nprovision.\n15. This Agreement and all matters arising out of or relating to this Agreement or the validity thereof shall be governed by, and\nconstrued in accordance with, the laws of the State of Minnesota, without giving effect to its principles or rules regarding conflicts of\nlaws. The parties agree that the State and Federal courts in Hennepin County, Minnesota shall have exclusive jurisdiction for\npurposes of any action, suit or proceeding arising hereunder. Each party hereto hereby irrevocably submits with regard to any such\naction or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the\naforesaid courts and agrees that it will not bring any action relating to this Agreement in any court other than the aforesaid courts.\nEach party hereto hereby irrevocably waives, and agrees not to assert in any action or proceeding with respect to this Agreement, any\nclaim that it is not personally subject to the jurisdiction of the above-named courts for any reason, (b) any claim that it or its property\nis exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through\nservice of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and\n(c) to the fullest extent permitted by applicable legal requirements, any claim that (i) the suit, action or proceeding in such court is\nbrought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper or (iii) this Agreement, or the subject\nmatter hereof, may not be enforced in or by\n6\nsuch courts. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN\nANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.\n16. As used in this Agreement: (a) the terms “Affiliate” and “Associate” (and any plurals thereof) shall have the meanings ascribed\nto such terms under Rule 12b-2 promulgated by the SEC under the Exchange Act, and (b) the term “Representatives” shall mean a\nperson’s Affiliates and Associates and its and their respective directors, officers, employees, partners, members, managers,\nconsultants, accountants, attorneys, legal or other advisors, agents and other representatives. Notwithstanding anything in this\nAgreement to the contrary, without the prior written consent of the Company, you shall not directly or indirectly share any\nConfidential Information with any of your Representatives other than (i) your officers, directors (including any members of your\nadvisory board) and employees, (ii) Olshan Frome Wolosky LLP, and (iii) such other advisors that the Company and you agreed\nupon in writing (including email).\n17. This Agreement constitutes the only agreement between the parties hereto with respect to the subject matter hereof and\nsupersedes all prior agreements, understandings, negotiations and discussions, whether oral or written. This Agreement may be\namended only by an agreement in writing executed by the parties hereto.\n18. This Agreement may be executed in separate counterparts (including by fax, .jpeg, .gif, .bmp and .pdf), each of which when so\nexecuted shall be an original, but all such counterparts shall together constitute one and the same instrument.\n19. Each party to this Agreement acknowledges that it has been represented by counsel of its choice throughout all negotiations that\nhave preceded the execution of this Agreement, and that it has executed this Agreement with the advice of such counsel. Each party\nand its counsel cooperated and participated in the drafting and preparation of this Agreement, and any and all drafts relating thereto\nexchanged among the parties hereto shall be deemed the work product of all of the parties and may not be construed against any party\nby reason of its drafting or preparation. Accordingly, any rule of law or any legal decision that would require interpretation of any\nambiguities in this Agreement against any party that drafted or prepared it is of no application and is hereby expressly waived by each\nof the parties hereto, and any controversy over interpretations of this Agreement shall be decided without regards to events of drafting\nor preparation.\nVery truly yours,\nAPOGEE ENTERPRISES, INC.\nBy: /s/ Patricia A. Beithon\nName: Patricia A. Beithon\nTitle:\nGeneral Counsel and\nSecretary\n7\nACCEPTED AND AGREED TO BY:\nEngaged Capital Flagship Master Fund, LP\nBy: Engaged Capital, LLC\nGeneral Partner\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nTitle:\nFounder and Chief\nInvestment Officer\nEngaged Capital Co-Invest VIII, LP\nBy: Engaged Capital, LLC\nGeneral Partner\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nTitle:\nFounder and Chief\nInvestment Officer\nEngaged Capital Flagship Fund, LP\nBy: Engaged Capital, LLC\nGeneral Partner\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nTitle:\nFounder and Chief\nInvestment Officer\nEngaged Capital Flagship Fund, Ltd.\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nTitle:\nDirector\nEngaged Capital, LLC\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nTitle:\nFounder and Chief\nInvestment Officer\nEngaged Capital Holdings, LLC\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nTitle:\nSole Member\n/s/ Glenn W. Welling\nGlenn W. Welling
9872a341364a7a1b279d025c8fe86ce7.pdf	effective_date jurisdiction party term	EX-99.D.5 15 g87249toexv99wdw5.htm EX-99.D.5\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement") is made as of December 2, 2003 by and between Compass Group\nUSA, Inc., a Delaware corporation (“Compass"), and Creative Host Services, Inc., a California corporation (“Creative Host").\n1. Purpose. Compass and Creative Host wish to explore a potential business combination (a “Transaction”) in connection with which each may\ndisclose its Confidential Information to the other. Each party is willing to furnish such information to the other only for the purpose of evaluating\nsuch business combination and only pursuant to the terms of this Agreement.\n2. Definitions. As used in this Agreement:\nA party’s “Associates” shall include such party’s subsidiaries and other affiliates and the respective directors, officers, employees, agents,\nrepresentatives, consultants, accountants, attorneys, and financial or other advisors of such party and its affiliates.\n“Confidential Information” means (i) any information that relates, directly or indirectly to the business or operations of the disclosing party or\nany predecessor entity, subsidiary or affiliate of the disclosing party (including but not limited to, information concerning technical data, know-how\nand other intellectual property rights, developments, inventions, processes, designs, drawings, engineering, product plans, products, services,\nemployees, suppliers, customers, markets, software, hardware configuration information, marketing, finances, projections, budgets, notes, analyses\nor studies and all tangible and intangible embodiments thereof of any kind whatsoever, whether conveyed in writing or orally) that is or has been\nconveyed or made available to the receiving party or any Associate of the receiving party by or on behalf of the disclosing party or any Associate of\nthe disclosing party, (ii) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is\nor has been prepared by or for the receiving party or any Associate of the receiving party and that contains, reflects or interprets or is based directly\nor indirectly upon any information of the type referred to in clause “(i)” of this sentence, (iii) the existence and terms of this Agreement, and the fact\nthat information of the type referred to in clause “(i)” of this sentence has been made available to the receiving party or any of its Associates, and\n(iv) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the receiving party and the\ndisclosing party, and the proposed terms of any such transaction. Notwithstanding the foregoing, Confidential Information shall include all\ninformation which due to its nature would cause a reasonable person to know that it is confidential and proprietary to the disclosing party.\nConfidential Information does not include information, technical data or know-how which: (i) is in the possession of the receiving party at the time\nof disclosure as shown by the receiving party’s files and records immediately prior to the time of disclosure; provided that the source of such\ninformation was not bound by a confidentiality agreement with respect to such information or was not otherwise in violation of any applicable legal\nrequirement with respect to the disclosure of such information; (ii) prior to or after the time of disclosure becomes part of the public knowledge or\nliterature, not as a result\n1.\nof any inaction or action of the receiving party or its Associates; (iii) is approved for release by the disclosing party in writing; or (iv) is\nindependently developed by the receiving party without knowledge of the disclosing party’s Confidential Information.\n“Person” shall mean any individual, corporation, limited liability company, partnership, or other business entity, tribunal or governmental\nauthority.\n3. Nondisclosure of Confidential Information.\n(a) Each of Compass and Creative Host agrees to maintain in trust and confidence the Confidential Information disclosed to it by the other\nparty or its Associates, and not to use such Confidential Information for its own use or for any purpose except solely to carry out discussions\nconcerning, and the undertaking of, any negotiated business combination between the parties approved by the board of directors of each of the\nparties (“Negotiated Transaction"). Neither party will disclose any Confidential Information of the other party to third parties except those\nAssociates of such party who are required to have the information in order to carry out the discussions conduct due diligence and other activities\nrelated to the contemplated Negotiated Transaction. Each party has informed or will inform those Associates of such party to whom Confidential\nInformation of the other party is disclosed or who have access to Confidential Information of the other party of the existence of this Agreement and\nsuch party’s obligations under this Agreement with respect to Confidential Information. A breach of the terms of this Agreement by any Associate of\na party shall be deemed a breach of this Agreement by such party. Each party agrees that it will take all reasonable measures to protect the secrecy of\nand avoid disclosure or use of Confidential Information of the other party in order to prevent it from falling into the public domain or the possession\nof Persons other than those Persons authorized hereunder to have any such information, which measures shall include the degree of care that either\nparty utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify promptly the other party in writing of any\nmisuse or misappropriation of such Confidential Information of the other party which may come to its attention.\n(b) Neither this Agreement nor any action taken prior to or in connection with this Agreement will give rise to any obligation on the part of\nCompass or Creative Host (i) to engage in any discussions or negotiations with the other party or with any of the other party’s Associates or (ii) to\npursue or enter into any transaction of any nature with the other party. Each party acknowledges that neither the other party nor any of its Associates\nmakes any express or implied representation or warranty as to the accuracy or completeness of the Confidential Information, or that it has provided\nthe other party with all of the information such party has requested. Except as may be provided in a definitive written agreement with respect to a\nNegotiated Transaction between the parties, if any, (A) Creative Host agrees that neither Compass nor its Associates shall have any liability to\nCreative Host or any of its Associates resulting from the use of the Confidential Information by Creative Host or its Associates or their reliance\nthereon, and (B) Compass agrees that neither Creative Host nor its Associates shall have any liability to Compass or any of its Associates resulting\nfrom the use of the Confidential Information by Compass or its Associates or their reliance thereon. Each party agrees that unless and until a\ndefinitive written agreement with respect to a Negotiated Transaction has been executed and delivered (if ever), neither party is under any legal\nobligation or liability of any kind whatsoever\n2.\nwith respect to any transaction between the parties whatsoever (including, but not limited by virtue of any written or oral expressions of interest by\ntheir respective Associates), other than the parties’ obligations to each other under this Agreement.\n4. Mandatory Disclosure.\n(a) In the event that Compass or its Associates become legally compelled under the United States securities laws or as may be required by the\nSecurities and Exchange Commission or in a proceeding before a court, arbitrator or administrative agency to disclose (A) any portion of the\nConfidential Information of Creative Host, (B) that such Confidential Information has been made available to Compass or its Associates, (C) that\ndiscussions or negotiations between Creative Host, Compass and their respective Associates are taking place, or (D) any of the terms, conditions or\nother facts with respect to any transaction between the parties hereto, including the status thereof, Compass will, and will direct its Associates to,\nprovide Creative Host with prompt written notice (to the extent permitted by law) of such legal compulsion and its intent to disclose any\nConfidential Information of Creative Host, and shall delay disclosure, if and to the extent practicable and permitted by law, until Creative Host has\nhad an opportunity to seek a protective order or other appropriate remedy or to waive compliance by Compass and/or its Associates with the relevant\nprovisions of this Agreement; provided, that no such delay or waiver shall be required as to any disclosure that Compass is advised by its counsel\nthat it is then required to make under applicable law. Compass also agrees, to the extent permitted by law, to provide Creative Host, reasonably far in\nadvance of making any such disclosure, with copies of any Confidential Information that it intends to disclose (and, if applicable, the text of the\ndisclosure language itself) and to cooperate with Creative Host, at the expense of Creative Host, in order to seek to obtain a protective order, if\navailable, and to take any other legally available steps to limit such disclosure. In the event that a protective order or other remedy is not obtained in\nsuch a proceeding, or Creative Host fails to waive compliance with the relevant provisions of this Agreement, Compass agrees that it will, and will\ncause its Associates to, disclose only that Confidential Information of Creative Host which its counsel advises (except that no advice of counsel shall\nbe required in the case of oral testimony where (X) it is impracticable to obtain such advice and (Y) counsel has advised the testifying witness of the\nobligations imposed by this Section 4 prior to his or her testimony) is legally required to be disclosed and will exercise its best efforts, and will cause\nits Associates to exercise their best efforts, at the request and expense of Creative Host, to cooperate with Creative Host to obtain reliable assurance\nthat confidential treatment will be accorded the Confidential Information which is so disclosed.\n(b) In the event that Creative Host or its Associates become legally compelled under the United States securities laws or as may be required\nby the Securities and Exchange Commission or in a proceeding before a court, arbitrator or administrative agency to disclose (A) any portion of the\nConfidential Information of Compass, (B) that such Confidential Information has been made available to Creative Host or its Associates, (C) that\ndiscussions or negotiations between Creative Host, Compass and their respective Associates are taking place, or (D) any of the terms, conditions or\nother facts with respect to any transaction between the parties hereto, including the status thereof, Creative Host will, and will direct its Associates\nto, provide Compass with prompt written notice (to the extent permitted by law) of such legal compulsion\n3.\nand its intent to disclose any Confidential Information of Compass, and shall delay disclosure, if and to the extent practicable and permitted by law,\nuntil Compass has had an opportunity to seek a protective order or other appropriate remedy or to waive compliance by Creative Host and/or its\nAssociates with the relevant provisions of this Agreement provided, that no such delay or waiver shall be required as to any disclosure that Creative\nHost is advised by its counsel that it is then required to make under applicable law. Creative Host also agrees, to the extent permitted by law, to\nprovide Compass, reasonably far in advance of making any such disclosure, with copies of any Confidential Information that it intends to disclose\n(and, if applicable, the text of the disclosure language itself) and to cooperate with Compass, at the expense of Compass, in order to seek to obtain a\nprotective order, if available, and to take any other legally available steps to limit such disclosure. In the event that a protective order or other remedy\nis not obtained in such a proceeding, or Compass fails to waive compliance with the relevant provisions of this Agreement, Creative Host agrees that\nit will, and will cause its Associates to, disclose only that Confidential Information of Compass which its counsel advises (except that no advice of\ncounsel shall be required in the case of oral testimony where (X) it is impracticable to obtain such advice and (Y) counsel has advised the testifying\nwitness of the obligations imposed by this Section 4 prior to his or her testimony) is legally required to be disclosed and will exercise its best efforts,\nand will cause its Associates to exercise their best efforts, at the request and expense of Compass, to cooperate with Compass to obtain reliable\nassurance that confidential treatment will be accorded the Confidential Information which is so disclosed.\n(c) Notwithstanding anything herein to the contrary, any party to this Agreement (and any Associate of any party to this Agreement) may\ndisclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all materials of any kind\n(including opinions or other tax analyses) that are provided to it relating to such tax treatment and tax structure; provided, however, that such\ndisclosure may not be made (i) until the earlier of (x) the date of the public announcement of discussions relating to the Transaction, if any, (y) the\ndate of the public announcement of the Transaction, if any and (z) the date of the execution of an agreement to enter into the Transaction, if any and\n(ii) to the extent required to be kept confidential to comply with any applicable federal or state securities laws, provided, however, that neither party\n(nor its Associates) may disclose any other information that is not relevant to understanding the tax treatment and tax structure of the Transaction.\n5. Return of Materials. Promptly upon request by the disclosing party, the receiving party will, and will cause its Associates to, deliver to the\ndisclosing party any written Confidential Information of the disclosing party and all copies or modifications thereof, except for that portion of the\nConfidential Information which consists of analyses, compilations, studies or other documents prepared by the receiving party or its Associates,\nwithout retaining any copy thereof. That portion of the Confidential Information or any modification thereof which consists of analyses,\ncompilations, studies or other documents prepared by the receiving party or its Associates and that is not returned to the other party shall be\ndestroyed and no copy thereof shall be retained and such receiving party shall certify in writing that such destruction has occurred. Notwithstanding\nthe foregoing, legal counsel to each of Compass and Creative Host may retain one copy of all Confidential Information possessed by such legal\ncounsel for their records.\n4.\n6. No License Granted; Privileged Information. Nothing in this Agreement is intended to grant any rights to either party under any patent,\ncopyright, trade secret or other intellectual property right nor shall this Agreement grant either party any rights in or to the other party’s Confidential\nInformation, except the limited right to review such Confidential Information solely for the purposes of determining whether to enter into the\nproposed business relationship between the parties. To the extent that any Confidential Information includes materials or other information that may\nbe subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidentiality\nInformation or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed\nthat the parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or\ndispute and that it is the parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended\nto, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such\nmaterials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all\nConfidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or\ndoctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the parties agree to take\nall measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n7. Nonpublicity. The existence and the terms of this Agreement, the transactions contemplated hereby, and the existence and nature of the\ndiscussions between the parties shall be maintained in confidence by the parties hereto and by their respective Associates and shall not be disclosed\nto any third party. Neither party hereto shall take, or cause to be taken, any action which might require the other party to make a public\nannouncement regarding the transactions contemplated under this Agreement. By executing and delivering this agreement each of Creative Host and\nCompass confirms to the other that it is aware and that its Associates have been advised that the federal and state securities laws prohibit any person\nwho possesses material, non-public information about a company from purchasing or selling securities of such company, so long as such information\nremains material and non-public.\n8. Mutual Nonsolicitation. Creative Host and Compass each covenants and agrees that for a period expiring one (1) year after the date of this\nAgreement, the parties will not directly or indirectly solicit, induce, recruit or encourage any then-current employees of the other party that they\ncame in contact with in connection with their consideration of the Transaction to terminate their employment, or attempt to solicit, induce or recruit\nsuch specified employees of the other party. The publication of advertisements in newspapers and/or other publications of general circulation\n(including trade publications) shall not in any event be deemed a violation of any provision of this Agreement so long as such advertisements do not\nspecifically target any above-referenced employee of Creative Host or Compass.\n9. Standstill Provisions. During the one-year period commencing on the date of this letter agreement (the “Standstill Period"), except\npursuant to a Negotiated Transaction, neither Compass nor any of Compass’s Associates will, in any manner, directly or indirectly:\n5.\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Creative Host or any securities\nof any subsidiary or other affiliate of Creative Host, (ii) any acquisition of any assets of Creative Host or any assets of any subsidiary or other\naffiliate of Creative Host, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation,\ndissolution or extraordinary transaction involving Creative Host or any subsidiary or other affiliate of Creative Host, or involving any securities\nor assets of Creative Host or any securities or assets of any subsidiary or other affiliate of Creative Host, or (iv) any “solicitation” of “proxies”\n(as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Creative\nHost;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Creative Host;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Creative Host;\n(d) take any action that might require Creative Host to make a public announcement regarding any of the types of matters set forth in clause\n“(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clauses “(a)”, “(b)”, “(c)” or\n“(d)” of this sentence;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clauses “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of this\nsentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) publicly request or propose that Creative Host or any of Creative Host’s Associates amend, waive or consider the amendment or waiver\nof any provision set forth in this Section 9.\nNotwithstanding this Section 9, if (a)(i) the Board of Directors of Creative Host approves a transaction with any person and (ii) such transaction\nwould result in such person beneficially owning more than 50% of the outstanding voting securities of Creative Host or all or substantially all of\nCreative Host’s assets, or (b) any person or “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended,\nshall have commenced or publicly announced its intention to commence a tender or exchange offer for more than 50% of the outstanding voting\nsecurities of Creative Host, or any securities convertible into more than 50% of the outstanding voting securities of Creative Host, or any options,\nwarrants or other rights to acquire more than 50% of the outstanding voting securities of Creative Host, then Compass or any of Compass’s\nAssociates shall not be prohibited thereafter from taking any of the actions described in this Section 9.\n6.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.\n10. Term. The covenants and commitments of either party in this Agreement shall survive any termination of discussions between the parties,\nand shall continue for a period of two (2) years following the date of this Agreement.\n11. Successors and Assigns; Waiver and Amendment. The provisions of this Agreement shall inure to the benefit of and be binding upon\nCreative Host, Compass and their respective affiliates, successors and assigns, including any successor to Creative Host or Compass of substantially\nall of Creative Host’s or Compass’ assets or business, by merger, consolidation, purchase of assets, purchase of stock or otherwise. No failure or\ndelay by either party or any of its Associates in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and\nno single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right,\npower or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is\nvalidly executed on behalf of each of the parties and that refers specifically to the particular provision or provisions being waived or amended.\n12. Dispute Resolution and Governing Law. Should any dispute between the parties arise under this Agreement, Compass and Creative Host,\nthrough appropriately senior persons, shall first meet and attempt to resolve the dispute in face-to-face negotiations. This meeting shall occur within\nthirty days of the time the dispute arises.\nIf no resolution is reached, Compass and Creative Host shall, within forty-five days of the first meeting, attempt to settle the dispute by formal\nmediation. If the parties cannot agree upon the appointment of a mediator and the place of the mediation within sixty days of the first meeting, the\nmediation shall be administered by the American Arbitration Association in Wilmington, Delaware with the parties splitting the cost of the mediator.\nIf no resolution is reached in mediation, the dispute shall be resolved by binding arbitration before a three-arbitrator panel, administered by the\nAmerican Arbitration Association.\nThis Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware, and shall be\nbinding upon the parties hereto in the United States and worldwide.\nNotwithstanding the foregoing dispute resolution and governing law provisions, Compass and Creative Host shall each retain the right to seek\njudicial injunctive and other equitable relief, as provided in Section 13, where appropriate.\n13. Remedies; Severability. Each party agrees that its obligations hereunder are necessary and reasonable in order to protect the other party\nand the other party’s business, and expressly agrees that monetary damages may be inadequate to compensate the other party for any breach by either\nparty of any covenants and agreements set forth herein. Accordingly, each party\n7.\nagrees and acknowledges that any such violation or threatened violation will cause irreparable injury to the other party and that, in addition to any\nother remedies that may be available, in law, in equity or otherwise, the other party shall be entitled to injunctive relief against the threatened breach\nof this Agreement or the continuation of any such breach, without the necessity of proving actual damages. Each party also agrees that it will not\nseek and agrees to waive any requirement for the securing or posting of a bond in connection with the aggrieved party’s obtaining of equitable relief\npursuant to this Section 13. The equitable remedies referred to above will not be deemed to be the exclusive remedy for a breach of this Agreement,\nbut rather will be in addition to all other remedies available at law or in equity to the parties. The invalidity or unenforceability of any provision of\nthis Agreement shall not affect the validity or enforceability of any other provision of this Agreement.\n14. Complete Agreement. This Agreement constitutes the entire agreement between Compass and Creative Host regarding the subject matter\nhereof and supersedes any prior agreement between the parties hereto, including the Confidential Disclosure Agreement dated August 21, 2003,\nregarding the subject matter hereof.\n15. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one and the same instrument.\n[SIGNATURE PAGE TO FOLLOW]\n8.\nIn witness whereof, the parties have executed this Agreement as of the day and year first above written.\nCompass Group USA, Inc.\nBy:\n/s/ C. Palmer Brown\nTitle: VP Corporate Development\nCreative Host Services, Inc.\nBy:\n/s/ Sayed Ali\nTitle: President\n[SIGNATURE PAGE TO MUTUAL NONDISCLOSURE AGREEMENT]	EX-99.D.5 15 g87249toexv99wdwb5.htm EX-99.D.5\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement") is made as of December 2, 2003 by and between Compass Group\nUSA, Inc., a Delaware corporation (“Compass"), and Creative Host Services, Inc., a California corporation (“Creative Host").\n1. Purpose. Compass and Creative Host wish to explore a potential business combination (a “Transaction”) in connection with which each may\ndisclose its Confidential Information to the other. Each party is willing to furnish such information to the other only for the purpose of evaluating\nsuch business combination and only pursuant to the terms of this Agreement.\n2. Definitions. As used in this Agreement:\nA party’s “Associates” shall include such party’s subsidiaries and other affiliates and the respective directors, officers, employees, agents,\nrepresentatives, consultants, accountants, attorneys, and financial or other advisors of such party and its affiliates.\n“Confidential Information” means (i) any information that relates, directly or indirectly to the business or operations of the disclosing party or\nany predecessor entity, subsidiary or affiliate of the disclosing party (including but not limited to, information concerning technical data, know-how\nand other intellectual property rights, developments, inventions, processes, designs, drawings, engineering, product plans, products, services,\nemployees, suppliers, customers, markets, software, hardware configuration information, marketing, finances, projections, budgets, notes, analyses\nor studies and all tangible and intangible embodiments thereof of any kind whatsoever, whether conveyed in writing or orally) that is or has been\nconveyed or made available to the receiving party or any Associate of the receiving party by or on behalf of the disclosing party or any Associate of\nthe disclosing party, (ii) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is\nor has been prepared by or for the receiving party or any Associate of the receiving party and that contains, reflects or interprets or is based directly\nor indirectly upon any information of the type referred to in clause “(i)” of this sentence, (iii) the existence and terms of this Agreement, and the fact\nthat information of the type referred to in clause “(i)” of this sentence has been made available to the receiving party or any of its Associates, and\n(iv) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the receiving party and the\ndisclosing party, and the proposed terms of any such transaction. Notwithstanding the foregoing, Confidential Information shall include all\ninformation which due to its nature would cause a reasonable person to know that it is confidential and proprietary to the disclosing party.\nConfidential Information does not include information, technical data or know-how which: (i) is in the possession of the receiving party at the time\nof disclosure as shown by the receiving party’s files and records immediately prior to the time of disclosure; provided that the source of such\ninformation was not bound by a confidentiality agreement with respect to such information or was not otherwise in violation of any applicable legal\nrequirement with respect to the disclosure of such information; (ii) prior to or after the time of disclosure becomes part of the public knowledge or\nliterature, not as a result\n \nof any inaction or action of the receiving party or its Associates; (iii) is approved for release by the disclosing party in writing; or (iv) is\nindependently developed by the receiving party without knowledge of the disclosing party’s Confidential Information.\n“Person” shall mean any individual, corporation, limited liability company, partnership, or other business entity, tribunal or governmental\nauthority.\n3. Nondisclosure of Confidential Information.\n(a) Each of Compass and Creative Host agrees to maintain in trust and confidence the Confidential Information disclosed to it by the other\nparty or its Associates, and not to use such Confidential Information for its own use or for any purpose except solely to carry out discussions\nconcerning, and the undertaking of, any negotiated business combination between the parties approved by the board of directors of each of the\nparties (“Negotiated Transaction"). Neither party will disclose any Confidential Information of the other party to third parties except those\nAssociates of such party who are required to have the information in order to carry out the discussions conduct due diligence and other activities\nrelated to the contemplated Negotiated Transaction. Each party has informed or will inform those Associates of such party to whom Confidential\nInformation of the other party is disclosed or who have access to Confidential Information of the other party of the existence of this Agreement and\nsuch party’s obligations under this Agreement with respect to Confidential Information. A breach of the terms of this Agreement by any Associate of\na party shall be deemed a breach of this Agreement by such party. Each party agrees that it will take all reasonable measures to protect the secrecy of\nand avoid disclosure or use of Confidential Information of the other party in order to prevent it from falling into the public domain or the possession\nof Persons other than those Persons authorized hereunder to have any such information, which measures shall include the degree of care that either\nparty utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify promptly the other party in writing of any\nmisuse or misappropriation of such Confidential Information of the other party which may come to its attention.\n(b) Neither this Agreement nor any action taken prior to or in connection with this Agreement will give rise to any obligation on the part of\nCompass or Creative Host (i) to engage in any discussions or negotiations with the other party or with any of the other party’s Associates or (ii) to\npursue or enter into any transaction of any nature with the other party. Each party acknowledges that neither the other party nor any of its Associates\nmakes any express or implied representation or warranty as to the accuracy or completeness of the Confidential Information, or that it has provided\nthe other party with all of the information such party has requested. Except as may be provided in a definitive written agreement with respect to a\nNegotiated Transaction between the parties, if any, (A) Creative Host agrees that neither Compass nor its Associates shall have any liability to\nCreative Host or any of its Associates resulting from the use of the Confidential Information by Creative Host or its Associates or their reliance\nthereon, and (B) Compass agrees that neither Creative Host nor its Associates shall have any liability to Compass or any of its Associates resulting\nfrom the use of the Confidential Information by Compass or its Associates or their reliance thereon. Each party agrees that unless and until a\ndefinitive written agreement with respect to a Negotiated Transaction has been executed and delivered (if ever), neither party is under any legal\nobligation or liability of any kind whatsoever\n \nwith respect to any transaction between the parties whatsoever (including, but not limited by virtue of any written or oral expressions of interest by\ntheir respective Associates), other than the parties’ obligations to each other under this Agreement.\n4. Mandatory Disclosure.\n(a) In the event that Compass or its Associates become legally compelled under the United States securities laws or as may be required by the\nSecurities and Exchange Commission or in a proceeding before a court, arbitrator or administrative agency to disclose (A) any portion of the\nConfidential Information of Creative Host, (B) that such Confidential Information has been made available to Compass or its Associates, (C) that\ndiscussions or negotiations between Creative Host, Compass and their respective Associates are taking place, or (D) any of the terms, conditions or\nother facts with respect to any transaction between the parties hereto, including the status thereof, Compass will, and will direct its Associates to,\nprovide Creative Host with prompt written notice (to the extent permitted by law) of such legal compulsion and its intent to disclose any\nConfidential Information of Creative Host, and shall delay disclosure, if and to the extent practicable and permitted by law, until Creative Host has\nhad an opportunity to seek a protective order or other appropriate remedy or to waive compliance by Compass and/or its Associates with the relevant\nprovisions of this Agreement; provided, that no such delay or waiver shall be required as to any disclosure that Compass is advised by its counsel\nthat it is then required to make under applicable law. Compass also agrees, to the extent permitted by law, to provide Creative Host, reasonably far in\nadvance of making any such disclosure, with copies of any Confidential Information that it intends to disclose (and, if applicable, the text of the\ndisclosure language itself) and to cooperate with Creative Host, at the expense of Creative Host, in order to seek to obtain a protective order, if\navailable, and to take any other legally available steps to limit such disclosure. In the event that a protective order or other remedy is not obtained in\nsuch a proceeding, or Creative Host fails to waive compliance with the relevant provisions of this Agreement, Compass agrees that it will, and will\ncause its Associates to, disclose only that Confidential Information of Creative Host which its counsel advises (except that no advice of counsel shall\nbe required in the case of oral testimony where (X) it is impracticable to obtain such advice and (Y) counsel has advised the testifying witness of the\nobligations imposed by this Section 4 prior to his or her testimony) is legally required to be disclosed and will exercise its best efforts, and will cause\nits Associates to exercise their best efforts, at the request and expense of Creative Host, to cooperate with Creative Host to obtain reliable assurance\nthat confidential treatment will be accorded the Confidential Information which is so disclosed.\n(b) In the event that Creative Host or its Associates become legally compelled under the United States securities laws or as may be required\nby the Securities and Exchange Commission or in a proceeding before a court, arbitrator or administrative agency to disclose (A) any portion of the\nConfidential Information of Compass, (B) that such Confidential Information has been made available to Creative Host or its Associates, (C) that\ndiscussions or negotiations between Creative Host, Compass and their respective Associates are taking place, or (D) any of the terms, conditions or\nother facts with respect to any transaction between the parties hereto, including the status thereof, Creative Host will, and will direct its Associates\nto, provide Compass with prompt written notice (to the extent permitted by law) of such legal compulsion\n3.\n \nand its intent to disclose any Confidential Information of Compass, and shall delay disclosure, if and to the extent practicable and permitted by law,\nuntil Compass has had an opportunity to seek a protective order or other appropriate remedy or to waive compliance by Creative Host and/or its\nAssociates with the relevant provisions of this Agreement provided, that no such delay or waiver shall be required as to any disclosure that Creative\nHost is advised by its counsel that it is then required to make under applicable law. Creative Host also agrees, to the extent permitted by law, to\nprovide Compass, reasonably far in advance of making any such disclosure, with copies of any Confidential Information that it intends to disclose\n(and, if applicable, the text of the disclosure language itself) and to cooperate with Compass, at the expense of Compass, in order to seek to obtain a\nprotective order, if available, and to take any other legally available steps to limit such disclosure. In the event that a protective order or other remedy\nis not obtained in such a proceeding, or Compass fails to waive compliance with the relevant provisions of this Agreement, Creative Host agrees that\nit will, and will cause its Associates to, disclose only that Confidential Information of Compass which its counsel advises (except that no advice of\ncounsel shall be required in the case of oral testimony where (X) it is impracticable to obtain such advice and (Y) counsel has advised the testifying\nwitness of the obligations imposed by this Section 4 prior to his or her testimony) is legally required to be disclosed and will exercise its best efforts,\nand will cause its Associates to exercise their best efforts, at the request and expense of Compass, to cooperate with Compass to obtain reliable\nassurance that confidential treatment will be accorded the Confidential Information which is so disclosed.\n(c) Notwithstanding anything herein to the contrary, any party to this Agreement (and any Associate of any party to this Agreement) may\ndisclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all materials of any kind\n(including opinions or other tax analyses) that are provided to it relating to such tax treatment and tax structure; provided, however, that such\ndisclosure may not be made (i) until the earlier of (x) the date of the public announcement of discussions relating to the Transaction, if any, (y) the\ndate of the public announcement of the Transaction, if any and (z) the date of the execution of an agreement to enter into the Transaction, if any and\n(ii) to the extent required to be kept confidential to comply with any applicable federal or state securities laws, provided, however, that neither party\n(nor its Associates) may disclose any other information that is not relevant to understanding the tax treatment and tax structure of the Transaction.\n5. Return of Materials. Promptly upon request by the disclosing party, the receiving party will, and will cause its Associates to, deliver to the\ndisclosing party any written Confidential Information of the disclosing party and all copies or modifications thereof, except for that portion of the\nConfidential Information which consists of analyses, compilations, studies or other documents prepared by the receiving party or its Associates,\nwithout retaining any copy thereof. That portion of the Confidential Information or any modification thereof which consists of analyses,\ncompilations, studies or other documents prepared by the receiving party or its Associates and that is not returned to the other party shall be\ndestroyed and no copy thereof shall be retained and such receiving party shall certify in writing that such destruction has occurred. Notwithstanding\nthe foregoing, legal counsel to each of Compass and Creative Host may retain one copy of all Confidential Information possessed by such legal\ncounsel for their records.\n \n6. No License Granted; Privileged Information. Nothing in this Agreement is intended to grant any rights to either party under any patent,\ncopyright, trade secret or other intellectual property right nor shall this Agreement grant either party any rights in or to the other party’s Confidential\nInformation, except the limited right to review such Confidential Information solely for the purposes of determining whether to enter into the\nproposed business relationship between the parties. To the extent that any Confidential Information includes materials or other information that may\nbe subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidentiality\nInformation or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed\nthat the parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or\ndispute and that it is the parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended\nto, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such\nmaterials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all\nConfidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or\ndoctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the parties agree to take\nall measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n7. Nonpublicity. The existence and the terms of this Agreement, the transactions contemplated hereby, and the existence and nature of the\ndiscussions between the parties shall be maintained in confidence by the parties hereto and by their respective Associates and shall not be disclosed\nto any third party. Neither party hereto shall take, or cause to be taken, any action which might require the other party to make a public\nannouncement regarding the transactions contemplated under this Agreement. By executing and delivering this agreement each of Creative Host and\nCompass confirms to the other that it is aware and that its Associates have been advised that the federal and state securities laws prohibit any person\nwho possesses material, non-public information about a company from purchasing or selling securities of such company, so long as such information\nremains material and non-public.\n8. Mutual Nonsolicitation. Creative Host and Compass each covenants and agrees that for a period expiring one (1) year after the date of this\nAgreement, the parties will not directly or indirectly solicit, induce, recruit or encourage any then-current employees of the other party that they\ncame in contact with in connection with their consideration of the Transaction to terminate their employment, or attempt to solicit, induce or recruit\nsuch specified employees of the other party. The publication of advertisements in newspapers and/or other publications of general circulation\n(including trade publications) shall not in any event be deemed a violation of any provision of this Agreement so long as such advertisements do not\nspecifically target any above-referenced employee of Creative Host or Compass.\n9. Standstill Provisions. During the one-year period commencing on the date of this letter agreement (the “Standstill Period"), except\npursuant to a Negotiated Transaction, neither Compass nor any of Compass’s Associates will, in any manner, directly or indirectly:\n5.\n \n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Creative Host or any securities\nof any subsidiary or other affiliate of Creative Host, (ii) any acquisition of any assets of Creative Host or any assets of any subsidiary or other\naffiliate of Creative Host, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation,\ndissolution or extraordinary transaction involving Creative Host or any subsidiary or other affiliate of Creative Host, or involving any securities\nor assets of Creative Host or any securities or assets of any subsidiary or other affiliate of Creative Host, or (iv) any “solicitation” of “proxies”\n(as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Creative\nHost;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Creative Host;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Creative Host;\n(d) take any action that might require Creative Host to make a public announcement regarding any of the types of matters set forth in clause\n“(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clauses “(a)”, “(b)”, “(c)” or\n“(d)” of this sentence;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clauses “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of this\nsentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) publicly request or propose that Creative Host or any of Creative Host’s Associates amend, waive or consider the amendment or waiver\nof any provision set forth in this Section 9.\nNotwithstanding this Section 9, if (a)(i) the Board of Directors of Creative Host approves a transaction with any person and (ii) such transaction\nwould result in such person beneficially owning more than 50% of the outstanding voting securities of Creative Host or all or substantially all of Creative Host’s assets, or (b) any person or “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, shall have commenced or publicly announced its intention to commence a tender or exchange offer for more than 50% of the outstanding voting securities of Creative Host, or any securities convertible into more than 50% of the outstanding voting securities of Creative Host, or any options, warrants or other rights to acquire more than 50% of the outstanding voting securities of Creative Host, then Compass or any of Compass’s Associates shall not be prohibited thereafter from taking any of the actions described in this Section 9. 6.\n \nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.\n10. Term. The covenants and commitments of either party in this Agreement shall survive any termination of discussions between the parties,\nand shall continue for a period of two (2) years following the date of this Agreement.\n11.  Successors and Assigns; Waiver and Amendment. The provisions of this Agreement shall inure to the benefit of and be binding upon\nCreative Host, Compass and their respective affiliates, successors and assigns, including any successor to Creative Host or Compass of substantially\nall of Creative Host’s or Compass’ assets or business, by merger, consolidation, purchase of assets, purchase of stock or otherwise. No failure or\ndelay by either party or any of its Associates in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and\nno single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right,\npower or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is\nvalidly executed on behalf of each of the parties and that refers specifically to the particular provision or provisions being waived or amended.\n12. Dispute Resolution and Governing Law. Should any dispute between the parties arise under this Agreement, Compass and Creative Host,\nthrough appropriately senior persons, shall first meet and attempt to resolve the dispute in face-to-face negotiations. This meeting shall occur within\nthirty days of the time the dispute arises.\nIf no resolution is reached, Compass and Creative Host shall, within forty-five days of the first meeting, attempt to settle the dispute by formal\nmediation. If the parties cannot agree upon the appointment of a mediator and the place of the mediation within sixty days of the first meeting, the\nmediation shall be administered by the American Arbitration Association in Wilmington, Delaware with the parties splitting the cost of the mediator.\nIf no resolution is reached in mediation, the dispute shall be resolved by binding arbitration before a three-arbitrator panel, administered by the\nAmerican Arbitration Association.\nThis Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware, and shall be\nbinding upon the parties hereto in the United States and worldwide.\nNotwithstanding the foregoing dispute resolution and governing law provisions, Compass and Creative Host shall each retain the right to seek\njudicial injunctive and other equitable relief, as provided in Section 13, where appropriate.\n13. Remedies; Severability. Each party agrees that its obligations hereunder are necessary and reasonable in order to protect the other party\nand the other party’s business, and expressly agrees that monetary damages may be inadequate to compensate the other party for any breach by either\nparty of any covenants and agreements set forth herein. Accordingly, each party\n7.\n \nagrees and acknowledges that any such violation or threatened violation will cause irreparable injury to the other party and that, in addition to any\nother remedies that may be available, in law, in equity or otherwise, the other party shall be entitled to injunctive relief against the threatened breach\nof this Agreement or the continuation of any such breach, without the necessity of proving actual damages. Each party also agrees that it will not\nseek and agrees to waive any requirement for the securing or posting of a bond in connection with the aggrieved party’s obtaining of equitable relief\npursuant to this Section 13. The equitable remedies referred to above will not be deemed to be the exclusive remedy for a breach of this Agreement,\nbut rather will be in addition to all other remedies available at law or in equity to the parties. The invalidity or unenforceability of any provision of\nthis Agreement shall not affect the validity or enforceability of any other provision of this Agreement.\n14. Complete Agreement. This Agreement constitutes the entire agreement between Compass and Creative Host regarding the subject matter\nhereof and supersedes any prior agreement between the parties hereto, including the Confidential Disclosure Agreement dated August 21, 2003,\nregarding the subject matter hereof.\n15. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one and the same instrument.\n[SIGNATURE PAGE TO FOLLOW]\n8.\nIn witness whereof, the parties have executed this Agreement as of the day and year first above written.\nCompass Group USA, Inc.\nBy: /s/ C. Palmer Brown\nTitle: VP Corporate Development\nCreative Host Services, Inc.\nBy: /s/ Sayed Ali\nTitle:  President\n[SIGNATURE PAGE TO MUTUAL NONDISCLOSURE AGREEMENT]	EX-99.D.5 15 g87249toexv99wdw5.htm E EX-99.D.5\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS MUTUAL NONDISCLOSURE AGREEMENT (this "Agreement") is made as of December 2, 2003 by and between Compass Group\nUSA, Inc., a Delaware corporation ("Compass"), and Creative Host Services, Inc., a California corporation ("Creative Host").\n1.\nPurpose. Compass and Creative Host wish to explore a potential business combination (a "Transaction") in connection with which each may\ndisclose its Confidential Information to the other. Each party is willing to furnish such information to the other only for the purpose of evaluating\nsuch business combination and only pursuant to the terms of this Agreement.\n2. Definitions. As used in this Agreement:\nA\nparty's "Associates" shall include such party's subsidiaries and other affiliates and the respective directors, officers, employees, agents,\nrepresentatives, consultants, accountants, attorneys, and financial or other advisors of such party and its affiliates.\n"Confidential Information" means (i) any information that relates, directly or indirectly to the business or operations of the disclosing party or\nany predecessor entity, subsidiary or affiliate of the disclosing party (including but not limited to, information concerning technical data, know-how\nand other intellectual property rights, developments, inventions, processes, designs, drawings, engineering, product plans, products, services,\nemployees, suppliers, customers, markets, software, hardware configuration information, marketing, finances, projections, budgets, notes, analyses\nor studies and all tangible and intangible embodiments thereof of any kind whatsoever, whether conveyed in writing or orally) that is or has been\nconveyed or made available to the receiving party or any Associate of the receiving party by or on behalf of the disclosing party or any Associate of\nthe disclosing party, (ii) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that\nis\nor has been prepared by or for the receiving party or any Associate of the receiving party and that contains, reflects or interprets or is based directly\nor\nindirectly upon any information of the type referred to in clause "(i)" of this sentence, (iii) the existence and terms of this Agreement, and the fact\nthat information of the type referred to in clause "(i)" of this sentence has been made available to the receiving party or any of its Associates, and\n(iv) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the receiving party and the\ndisclosing party, and the proposed terms of any such transaction. Notwithstanding the foregoing, Confidential Information shall include all\ninformation which due to its nature would cause a reasonable person to know that it is confidential and proprietary to the disclosing party.\nConfidential Information does not include information, technical data or know-how which: (i) is in the possession of the receiving party at the time\nof disclosure as shown by the receiving party's files and records immediately prior to the time of disclosure; provided that the source of such\ninformation was not bound by a confidentiality agreement with respect to such information or was not otherwise in violation of any applicable legal\nrequirement with respect to the disclosure of such information; (ii) prior to or after the time of disclosure becomes part of the public knowledge or\nliterature, not as a result\n1.\nof any inaction or action of the receiving party or its Associates; (iii) is approved for release by the disclosing party in writing; or (iv) is\nindependently developed by the receiving party without knowledge of the disclosing party's Confidential Information.\n"Person" shall mean any individual, corporation, limited liability company, partnership, or other business entity, tribunal or governmental\nauthority.\n3. Nondisclosure of Confidential Information.\n(a) Each of Compass and Creative Host agrees to maintain in trust and confidence the Confidentia Information disclosed to it by the other\nparty or its Associates, and not to use such Confidential Information for its own use or for any purpose except solely to carry out discussions\nconcerning, and the undertaking of, any negotiated business combination between the parties approved by the board of directors of each of\nthe\nparties ("Negotiated Transaction") Neither party will disclose any Confidential Information of the other party to third parties except those\nAssociates of such party who are required to have the information in order to carry out the discussions conduct due diligence and other activities\nrelated to the contemplated Negotiated Transaction. Each party has informed or will inform those Associates of such party to whom Confidential\nInformation of the other party is disclosed or who have access to Confidential Information of the other party of the existence of this Agreement and\nsuch party's obligations under this Agreement with respect to Confidential Information. A breach of the terms of this Agreement by any Associate of\na party shall be deemed a breach of this Agreement by such party. Each party agrees that it will take all reasonable measures to protect the secrecy\nof\nand avoid disclosure or use of Confidential Information of the other party in order to prevent it from falling into the public domain or the possession\nof Persons other than those Persons authorized hereunder to have any such information, which measures shall include the degree of care that either\nparty utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify promptly the other party in writing of any\nmisuse or misappropriation of such Confidential Information of the other party which may come to its attention.\n(b) Neither this Agreement nor any action taken prior to or in connection with this Agreement will give rise to any obligation on the part of\nCompass or Creative Host (i) to engage in any discussions or negotiations with the other party or with any of the other party's Associates or (ii) to\npursue or enter into any transaction of any nature with the other party. Each party acknowledges that neither the other party nor any of its Associates\nmakes any express or implied representation or warranty as to the accuracy or completeness of the Confidential Information, or that it has provided\nthe other party with all of the information such party has requested. Except as may be provided in a definitive written agreement with respect to a\nNegotiated Transaction between the parties, if any, (A) Creative Host agrees that neither Compass nor its Associates shall have any liability\nto\nCreative Host or any of its Associates resulting from the use of the Confidential Information by Creative Host or its Associates or their reliance\nthereon, and (B) Compass agrees that neither Creative Host nor its Associates shall have any liability to Compass or any of its Associates resulting\nfrom the use of the Confidential Information by Compass or its Associates or their reliance thereon. Each party agrees that unless and until a\ndefinitive written agreement with respect to a Negotiated Transaction has been executed and delivered (if ever), neither party is under any legal\nobligation or liability of any kind whatsoever\n2.\nwith respect to any transaction between the parties whatsoever (including, but not limited by virtue of any written or oral expressions of interest by\ntheir respective Associates), other than the parties' obligations to each other under this Agreement.\n4. Mandatory Disclosure.\n(a) In the event that Compass or its Associates become legally compelled under the United States securities laws or as may be required by the\nSecurities and Exchange Commission or in a proceeding before a court, arbitrator or administrative agency to disclose (A) any portion of the\nConfidential Information of Creative Host, (B) that such Confidential Information has been made available to Compass or its Associates, (C) that\ndiscussions or negotiations between Creative Host, Compass and their respective Associates are taking place, or (D) any of the terms, conditions or\nother facts with respect to any transaction between the parties hereto, including the status thereof, Compass will, and will direct its Associates to,\nprovide Creative Host with prompt written notice (to the extent permitted by law) of such legal compulsion and its intent to disclose any\nConfidential Information of Creative Host, and shall delay disclosure, if and to the extent practicable and permitted by law, until Creative Host\nhas\nhad an opportunity to seek a protective order or other appropriate remedy or to waive compliance by Compass and/or its Associates with the relevant\nprovisions of this Agreement; provided, that no such delay or waiver shall be required as to any disclosure that Compass is advised by its counsel\nthat it is then required to make under applicable law. Compass also agrees, to the extent permitted by law, to provide Creative Host, reasonably far in\nadvance of making any such disclosure, with copies of any Confidential Information that it intends to disclose (and, if applicable, the text of\nthe\ndisclosure language itself) and to cooperate with Creative Host, at the expense of Creative Host, in order to seek to obtain a protective order, if\navailable, and to take any other legally available steps to limit such disclosure. In the event that a protective order or other remedy is not obtained in\nsuch a proceeding, or Creative Host fails to waive compliance with the relevant provisions of this Agreement, Compass agrees that it will, and will\ncause its Associates to, disclose only that Confidential Information of Creative Host which its counsel advises (except that no advice of counsel shall\nbe required in the case of oral testimony where (X) it is impracticable to obtain such advice and (Y) counsel has advised the testifying witness of the\nobligations imposed by this Section 4 prior to his or her testimony) is legally required to be disclosed and will exercise its best efforts, and will cause\nits Associates to exercise their best efforts, at the request and expense of Creative Host, to cooperate with Creative Host to obtain reliable assurance\nthat confidential treatment will be accorded the Confidential Information which is so disclosed.\n(b) In the event that Creative Host or its Associates become legally compelled under the United States securities laws or as may be required\nby the Securities and Exchange Commission or in a proceeding before a court, arbitrator or administrative agency to disclose (A) any portion of the\nConfidential Information of Compass, (B) that such Confidential Information has been made available to Creative Host or its Associates, (C) that\ndiscussions or negotiations between Creative Host, Compass and their respective Associates are taking place, or (D) any of the terms, conditions or\nother facts with respect to any transaction between the parties hereto, including the status thereof, Creative Host will, and will direct its Associates\nto, provide Compass with prompt written notice (to the extent permitted by law) of such legal compulsion\n3.\nand its intent to disclose any Confidential Information of Compass, and shall delay disclosure, if and to the extent practicable and permitted by law,\nuntil Compass has had an opportunity to seek a protective order or other appropriate remedy or to waive compliance by Creative Host and/or its\nAssociates with the relevant provisions of this Agreement provided, that no such delay or waiver shall be required as to any disclosure that Creative\nHost is advised by its counsel that it is then required to make under applicable law. Creative Host also agrees, to the extent permitted by law, to\nprovide Compass, reasonably far in advance of making any such disclosure, with copies of any Confidential Information that it intends to disclose\n(and, if applicable, the text of the disclosure language itself) and to cooperate with Compass, at the expense of Compass, in order to seek to obtain a\nprotective order, if available, and to take any other legally available steps to limit such disclosure. In the event that a protective order or other remedy\nis not obtained in such a proceeding, or Compass fails to waive compliance with the relevant provisions of this Agreement, Creative Host agrees that\nit\nwill, and will cause its Associates to, disclose only that Confidential Information of Compass which its counsel advises (except that no advice of\ncounsel shall be required in the case of oral testimony where (X) it is impracticable to obtain such advice and (Y) counsel has advised the testifying\nwitness of the obligations imposed by this Section 4 prior to his or her testimony) is legally required to be disclosed and will exercise\nits\nbest\nefforts,\nand will cause its Associates to exercise their best efforts, at the request and expense of Compass, to cooperate with Compass to obtain reliable\nassurance that confidential treatment will be accorded the Confidential Information which is so disclosed.\n(c) Notwithstanding anything herein to the contrary, any party to this Agreement (and any Associate of any party to this Agreement) may\ndisclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all materials of any kind\n(including opinions or other tax analyses) that are provided to it relating to such tax treatment and tax structure; provided, however, that such\ndisclosure may not be made (i) until the earlier of (x) the date of the public announcement of discussions relating to the Transaction, if any, (y)\nthe\ndate of the public announcement of the Transaction, if any and (z) the date of the execution of an agreement to enter into the Transaction, if any and\n(ii)\nto the extent required to be kept confidential to comply with any applicable federal or state securities laws, provided, however, that neither party\n(nor its Associates) may disclose any other information that is not relevant to understanding the tax treatment and tax structure of the Transaction.\n5.\nReturn of Materials. Promptly upon request by the disclosing party, the receiving party will, and will cause its Associates\nto,\ndeliver\nto\nthe\ndisclosing party any written Confidential Information of the disclosing party and all copies or modifications thereof, except for that portion of the\nConfidential Information which consists of analyses, compilations, studies or other documents prepared by the receiving party or its Associates,\nwithout retaining any copy thereof. That portion of the Confidential Information or any modification thereof which consists of analyses,\ncompilations, studies or other documents prepared by the receiving party or its Associates and that is not returned to the other party shall be\ndestroyed and no copy thereof shall be retained and such receiving party shall certify in writing that such destruction has occurred. Notwithstanding\nthe foregoing, legal counsel to each of Compass and Creative Host may retain one copy of all Confidentia Information possessed by such legal\ncounsel for their records.\n4.\n6. No License Granted; Privileged Information. Nothing in this Agreement is intended to grant any rights to either party under any patent,\ncopyright, trade secret or other intellectual property right nor shall this Agreement grant either party any rights in or to the other party's Confidential\nInformation, except the limited right to review such Confidential Information solely for the purposes of determining whether to enter into the\nproposed business relationship between the parties. To the extent that any Confidential Information includes materials or other information that may\nbe subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidentiality\nInformation or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed\nthat the parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or\ndispute and that it is the parties' mutual desire, intention and understanding that the sharing of such materials and other information is not intended\nto,\nand shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such\nmaterials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly,\nall\nConfidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or\ndoctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the parties agree to take\nall measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n7. Nonpublicity. The existence and the terms of this Agreement, the transactions contemplated hereby, and the existence and nature of the\ndiscussions between the parties shall be maintained in confidence by the parties hereto and by their respective Associates and shall not be disclosed\nto any third party. Neither party hereto shall take, or cause to be taken, any action which might require the other party to make a public\nannouncement regarding the transactions contemplated under this Agreement. By executing and delivering this agreement each of Creative Host and\nCompass confirms to the other that it is aware and that its Associates have been advised that the federal and state securities laws prohibit any person\nwho possesses material, non-public information about a company from purchasing or selling securities of such company, so long as such information\nremains material and non-public.\n8.\nMutual\nNonsolicitation.\nCreative\nHost\nand\nCompass\neach\ncovenants\nand\nagrees\nthat\nfor\na\nperiod\nexpiring\none\n(1)\nyear\nafter\nthe\ndate\nof\nthis\nAgreement, the parties will not directly or indirectly solicit, induce, recruit or encourage any then-current employees of the other party that they\ncame in contact with in connection with their consideration of the Transaction to terminate their employment, or attempt to solicit, induce or recruit\nsuch specified employees of the other party. The publication of advertisements in newspapers and/or other publications of general circulation\n(including trade publications) shall not in any event be deemed a violation of any provision of this Agreement so long as such advertisements do not\nspecifically target any above-referenced employee of Creative Host or Compass.\n9.\nStandstill Provisions. During the one-year period commencing on the date of this letter agreement (the "Standstill Period"), except\npursuant to a Negotiated Transaction, neither Compass nor any of Compass's Associates will, in any manner, directly or indirectly:\n5.\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Creative Host or any securities\nof any subsidiary or other affiliate of Creative Host, (ii) any acquisition of any assets of Creative Host or any assets of any subsidiary or other\naffiliate of Creative Host, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation,\ndissolution or extraordinary transaction involving Creative Host or any subsidiary or other affiliate of Creative Host, or involving any securities\nor assets of Creative Host or any securities or assets of any subsidiary or other affiliate of Creative Host, or (iv) any "solicitation" of "proxies"\n(as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Creative\nHost;\n(b) form, join or participate in a "group" (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Creative Host;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Creative Host;\n(d) take any action that might require Creative Host to make a public announcement regarding any of the types of matters set forth in clause\n"(a)" of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clauses "(a)", "(b)", "(c)" or\n"(d)" of this sentence;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clauses "(a)", "(b)", "(c)", "(d)" or "(e)" of this\nsentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) publicly request or propose that Creative Host or any of Creative Host's Associates amend, waive or consider the amendment or waiver\nof any provision set forth in this Section 9.\nNotwithstanding this Section 9, if (a)(i) the Board of Directors of Creative Host approves a transaction with any person and (ii) such transaction\nwould result in such person beneficially owning more than 50% of the outstanding voting securities of Creative Host or all or substantially all of\nCreative Host's assets, or (b) any person or "group" within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended,\nshall have commenced or publicly announced its intention to commence a tender or exchange offer for more than 50% of the outstanding voting\nsecurities of Creative Host, or any securities convertible into more than 50% of the outstanding voting securities of Creative Host, or any options,\nwarrants or other rights to acquire more than 50% of the outstanding voting securities of Creative Host, then Compass or any of Compass's\nAssociates shall not be prohibited thereafter from taking any of the actions described in this Section 9.\n6.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.\n10. Term. The covenants and commitments of either party in this Agreement shall survive any termination of discussions between the parties,\nand shall continue for a period of two (2) years following the date of this Agreement.\n11. Successors and Assigns; Waiver and Amendment. The provisions of this Agreement shall inure to the benefit of and be binding upon\nCreative Host, Compass and their respective affiliates, successors and assigns, including any successor to Creative Host or Compass of substantially\nall of Creative Host's or Compass' assets or business, by merger, consolidation, purchase of assets, purchase of stock or otherwise. No failure or\ndelay by either party or any of its Associates in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and\nno single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right,\npower\nor\nprivilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is\nvalidly executed on behalf of each of the parties and that refers specifically to the particular provision or provisions being waived or amended.\n12.\nDispute Resolution and Governing Law. Should any dispute between the parties arise under this Agreement, Compass and Creative Host,\nthrough appropriately senior persons, shall first meet and attempt to resolve the dispute in face-to-face negotiations. This meeting shall occur within\nthirty days of the time the dispute arises.\nIf no resolution is reached, Compass and Creative Host shall, within forty-five days of the first meeting, attempt to settle the dispute by formal\nmediation. If the parties cannot agree upon the appointment of a mediator and the place of the mediation within sixty days of the first meeting, the\nmediation shall be administered by the American Arbitration Association in Wilmington, Delaware with the parties splitting the cost of the mediator.\nIf no resolution is reached in mediation, the dispute shall be resolved by binding arbitration before a three-arbitrator panel, administered by the\nAmerican Arbitration Association.\nThis Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware, and shall be\nbinding upon the parties hereto in the United States and worldwide.\nNotwithstanding the foregoing dispute resolution and governing law provisions, Compass and Creative Host shall each retain the right to seek\njudicial injunctive and other equitable relief, as provided in Section 13, where appropriate.\n13. Remedies; Severability. Each party agrees that its obligations hereunder are necessary and reasonable in order to protect the other party\nand the other party's business, and expressly agrees that monetary damages may be inadequate to compensate the other party for any breach by\neither\nparty of any covenants and agreements set forth herein. Accordingly, each party\n7.\nagrees and acknowledges that any such violation or threatened violation will cause irreparable injury to the other party and that, in addition to any\nother remedies that may be available, in law, in equity or otherwise, the other party shall be entitled to injunctive relief against the threatened breach\nof this Agreement or the continuation of any such breach, without the necessity of proving actual damages. Each party also agrees that it will not\nseek and agrees to waive any requirement for the securing or posting of a bond in connection with the aggrieved party's obtaining of equitable relief\npursuant to this Section 13. The equitable remedies referred to above will not be deemed to be the exclusive remedy for a breach of this Agreement,\nbut rather will be in addition to all other remedies available at law or in equity to the parties. The invalidity or unenforceability of any provision\nof\nthis Agreement shall not affect the validity or enforceability of any other provision of this Agreement.\n14.\nComplete Agreement. This Agreement constitutes the entire agreement between Compass and Creative Host regarding the subject\nmatter\nhereof and supersedes any prior agreement between the parties hereto, including the Confidential Disclosure Agreement dated August 21, 2003,\nregarding the subject matter hereof.\n15. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one and the same instrument.\n[SIGNATURE PAGE TO FOLLOW]\n8.\nIn witness whereof, the parties have executed this Agreement as of the day and year first above written.\nCompass Group USA, Inc.\nBy:\n/s/ /s/ C. C. Palmer Brown\nTitle: VP Corporate Development\nCreative Host Services, Inc.\nBy:\n/s/ Sayed Ali\nTitle: President\n[SIGNATURE PAGE TO MUTUAL NONDISCLOSURE AGREEMENT]	EX-99.D.5 15 g87249toexv99wdw5.htm EX-99.D.5\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement") is made as of December 2, 2003 by and between Compass Group\nUSA, Inc., a Delaware corporation (“Compass"), and Creative Host Services, Inc., a California corporation (“Creative Host").\n1. Purpose. Compass and Creative Host wish to explore a potential business combination (a “Transaction”) in connection with which each may\ndisclose its Confidential Information to the other. Each party is willing to furnish such information to the other only for the purpose of evaluating\nsuch business combination and only pursuant to the terms of this Agreement.\n2. Definitions. As used in this Agreement:\nA party’s “Associates” shall include such party’s subsidiaries and other affiliates and the respective directors, officers, employees, agents,\nrepresentatives, consultants, accountants, attorneys, and financial or other advisors of such party and its affiliates.\n“Confidential Information” means (i) any information that relates, directly or indirectly to the business or operations of the disclosing party or\nany predecessor entity, subsidiary or affiliate of the disclosing party (including but not limited to, information concerning technical data, know-how\nand other intellectual property rights, developments, inventions, processes, designs, drawings, engineering, product plans, products, services,\nemployees, suppliers, customers, markets, software, hardware configuration information, marketing, finances, projections, budgets, notes, analyses\nor studies and all tangible and intangible embodiments thereof of any kind whatsoever, whether conveyed in writing or orally) that is or has been\nconveyed or made available to the receiving party or any Associate of the receiving party by or on behalf of the disclosing party or any Associate of\nthe disclosing party, (ii) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is\nor has been prepared by or for the receiving party or any Associate of the receiving party and that contains, reflects or interprets or is based directly\nor indirectly upon any information of the type referred to in clause “(i)” of this sentence, (iii) the existence and terms of this Agreement, and the fact\nthat information of the type referred to in clause “(i)” of this sentence has been made available to the receiving party or any of its Associates, and\n(iv) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the receiving party and the\ndisclosing party, and the proposed terms of any such transaction. Notwithstanding the foregoing, Confidential Information shall include all\ninformation which due to its nature would cause a reasonable person to know that it is confidential and proprietary to the disclosing party.\nConfidential Information does not include information, technical data or know-how which: (i) is in the possession of the receiving party at the time\nof disclosure as shown by the receiving party’s files and records immediately prior to the time of disclosure; provided that the source of such\ninformation was not bound by a confidentiality agreement with respect to such information or was not otherwise in violation of any applicable legal\nrequirement with respect to the disclosure of such information; (ii) prior to or after the time of disclosure becomes part of the public knowledge or\nliterature, not as a result\n1.\nof any inaction or action of the receiving party or its Associates; (iii) is approved for release by the disclosing party in writing; or (iv) is\nindependently developed by the receiving party without knowledge of the disclosing party’s Confidential Information.\n“Person” shall mean any individual, corporation, limited liability company, partnership, or other business entity, tribunal or governmental\nauthority.\n3. Nondisclosure of Confidential Information.\n(a) Each of Compass and Creative Host agrees to maintain in trust and confidence the Confidential Information disclosed to it by the other\nparty or its Associates, and not to use such Confidential Information for its own use or for any purpose except solely to carry out discussions\nconcerning, and the undertaking of, any negotiated business combination between the parties approved by the board of directors of each of the\nparties (“Negotiated Transaction"). Neither party will disclose any Confidential Information of the other party to third parties except those\nAssociates of such party who are required to have the information in order to carry out the discussions conduct due diligence and other activities\nrelated to the contemplated Negotiated Transaction. Each party has informed or will inform those Associates of such party to whom Confidential\nInformation of the other party is disclosed or who have access to Confidential Information of the other party of the existence of this Agreement and\nsuch party’s obligations under this Agreement with respect to Confidential Information. A breach of the terms of this Agreement by any Associate of\na party shall be deemed a breach of this Agreement by such party. Each party agrees that it will take all reasonable measures to protect the secrecy of\nand avoid disclosure or use of Confidential Information of the other party in order to prevent it from falling into the public domain or the possession\nof Persons other than those Persons authorized hereunder to have any such information, which measures shall include the degree of care that either\nparty utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify promptly the other party in writing of any\nmisuse or misappropriation of such Confidential Information of the other party which may come to its attention.\n(b) Neither this Agreement nor any action taken prior to or in connection with this Agreement will give rise to any obligation on the part of\nCompass or Creative Host (i) to engage in any discussions or negotiations with the other party or with any of the other party’s Associates or (ii) to\npursue or enter into any transaction of any nature with the other party. Each party acknowledges that neither the other party nor any of its Associates\nmakes any express or implied representation or warranty as to the accuracy or completeness of the Confidential Information, or that it has provided\nthe other party with all of the information such party has requested. Except as may be provided in a definitive written agreement with respect to a\nNegotiated Transaction between the parties, if any, (A) Creative Host agrees that neither Compass nor its Associates shall have any liability to\nCreative Host or any of its Associates resulting from the use of the Confidential Information by Creative Host or its Associates or their reliance\nthereon, and (B) Compass agrees that neither Creative Host nor its Associates shall have any liability to Compass or any of its Associates resulting\nfrom the use of the Confidential Information by Compass or its Associates or their reliance thereon. Each party agrees that unless and until a\ndefinitive written agreement with respect to a Negotiated Transaction has been executed and delivered (if ever), neither party is under any legal\nobligation or liability of any kind whatsoever\n2.\nwith respect to any transaction between the parties whatsoever (including, but not limited by virtue of any written or oral expressions of interest by\ntheir respective Associates), other than the parties’ obligations to each other under this Agreement.\n4. Mandatory Disclosure.\n(a) In the event that Compass or its Associates become legally compelled under the United States securities laws or as may be required by the\nSecurities and Exchange Commission or in a proceeding before a court, arbitrator or administrative agency to disclose (A) any portion of the\nConfidential Information of Creative Host, (B) that such Confidential Information has been made available to Compass or its Associates, (C) that\ndiscussions or negotiations between Creative Host, Compass and their respective Associates are taking place, or (D) any of the terms, conditions or\nother facts with respect to any transaction between the parties hereto, including the status thereof, Compass will, and will direct its Associates to,\nprovide Creative Host with prompt written notice (to the extent permitted by law) of such legal compulsion and its intent to disclose any\nConfidential Information of Creative Host, and shall delay disclosure, if and to the extent practicable and permitted by law, until Creative Host has\nhad an opportunity to seek a protective order or other appropriate remedy or to waive compliance by Compass and/or its Associates with the relevant\nprovisions of this Agreement; provided, that no such delay or waiver shall be required as to any disclosure that Compass is advised by its counsel\nthat it is then required to make under applicable law. Compass also agrees, to the extent permitted by law, to provide Creative Host, reasonably far in\nadvance of making any such disclosure, with copies of any Confidential Information that it intends to disclose (and, if applicable, the text of the\ndisclosure language itself) and to cooperate with Creative Host, at the expense of Creative Host, in order to seek to obtain a protective order, if\navailable, and to take any other legally available steps to limit such disclosure. In the event that a protective order or other remedy is not obtained in\nsuch a proceeding, or Creative Host fails to waive compliance with the relevant provisions of this Agreement, Compass agrees that it will, and will\ncause its Associates to, disclose only that Confidential Information of Creative Host which its counsel advises (except that no advice of counsel shall\nbe required in the case of oral testimony where (X) it is impracticable to obtain such advice and (Y) counsel has advised the testifying witness of the\nobligations imposed by this Section 4 prior to his or her testimony) is legally required to be disclosed and will exercise its best efforts, and will cause\nits Associates to exercise their best efforts, at the request and expense of Creative Host, to cooperate with Creative Host to obtain reliable assurance\nthat confidential treatment will be accorded the Confidential Information which is so disclosed.\n(b) In the event that Creative Host or its Associates become legally compelled under the United States securities laws or as may be required\nby the Securities and Exchange Commission or in a proceeding before a court, arbitrator or administrative agency to disclose (A) any portion of the\nConfidential Information of Compass, (B) that such Confidential Information has been made available to Creative Host or its Associates, (C) that\ndiscussions or negotiations between Creative Host, Compass and their respective Associates are taking place, or (D) any of the terms, conditions or\nother facts with respect to any transaction between the parties hereto, including the status thereof, Creative Host will, and will direct its Associates\nto, provide Compass with prompt written notice (to the extent permitted by law) of such legal compulsion\n3.\nand its intent to disclose any Confidential Information of Compass, and shall delay disclosure, if and to the extent practicable and permitted by law,\nuntil Compass has had an opportunity to seek a protective order or other appropriate remedy or to waive compliance by Creative Host and/or its\nAssociates with the relevant provisions of this Agreement provided, that no such delay or waiver shall be required as to any disclosure that Creative\nHost is advised by its counsel that it is then required to make under applicable law. Creative Host also agrees, to the extent permitted by law, to\nprovide Compass, reasonably far in advance of making any such disclosure, with copies of any Confidential Information that it intends to disclose\n(and, if applicable, the text of the disclosure language itself) and to cooperate with Compass, at the expense of Compass, in order to seek to obtain a\nprotective order, if available, and to take any other legally available steps to limit such disclosure. In the event that a protective order or other remedy\nis not obtained in such a proceeding, or Compass fails to waive compliance with the relevant provisions of this Agreement, Creative Host agrees that\nit will, and will cause its Associates to, disclose only that Confidential Information of Compass which its counsel advises (except that no advice of\ncounsel shall be required in the case of oral testimony where (X) it is impracticable to obtain such advice and (Y) counsel has advised the testifying\nwitness of the obligations imposed by this Section 4 prior to his or her testimony) is legally required to be disclosed and will exercise its best efforts,\nand will cause its Associates to exercise their best efforts, at the request and expense of Compass, to cooperate with Compass to obtain reliable\nassurance that confidential treatment will be accorded the Confidential Information which is so disclosed.\n(c) Notwithstanding anything herein to the contrary, any party to this Agreement (and any Associate of any party to this Agreement) may\ndisclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all materials of any kind\n(including opinions or other tax analyses) that are provided to it relating to such tax treatment and tax structure; provided, however, that such\ndisclosure may not be made (i) until the earlier of (x) the date of the public announcement of discussions relating to the Transaction, if any, (y) the\ndate of the public announcement of the Transaction, if any and (z) the date of the execution of an agreement to enter into the Transaction, if any and\n(ii) to the extent required to be kept confidential to comply with any applicable federal or state securities laws, provided, however, that neither party\n(nor its Associates) may disclose any other information that is not relevant to understanding the tax treatment and tax structure of the Transaction.\n5. Return of Materials. Promptly upon request by the disclosing party, the receiving party will, and will cause its Associates to, deliver to the\ndisclosing party any written Confidential Information of the disclosing party and all copies or modifications thereof, except for that portion of the\nConfidential Information which consists of analyses, compilations, studies or other documents prepared by the receiving party or its Associates,\nwithout retaining any copy thereof. That portion of the Confidential Information or any modification thereof which consists of analyses,\ncompilations, studies or other documents prepared by the receiving party or its Associates and that is not returned to the other party shall be\ndestroyed and no copy thereof shall be retained and such receiving party shall certify in writing that such destruction has occurred. Notwithstanding\nthe foregoing, legal counsel to each of Compass and Creative Host may retain one copy of all Confidential Information possessed by such legal\ncounsel for their records.\n4.\n6. No License Granted; Privileged Information. Nothing in this Agreement is intended to grant any rights to either party under any patent,\ncopyright, trade secret or other intellectual property right nor shall this Agreement grant either party any rights in or to the other party’s Confidential\nInformation, except the limited right to review such Confidential Information solely for the purposes of determining whether to enter into the\nproposed business relationship between the parties. To the extent that any Confidential Information includes materials or other information that may\nbe subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidentiality\nInformation or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed\nthat the parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or\ndispute and that it is the parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended\nto, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such\nmaterials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all\nConfidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or\ndoctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the parties agree to take\nall measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n7. Nonpublicity. The existence and the terms of this Agreement, the transactions contemplated hereby, and the existence and nature of the\ndiscussions between the parties shall be maintained in confidence by the parties hereto and by their respective Associates and shall not be disclosed\nto any third party. Neither party hereto shall take, or cause to be taken, any action which might require the other party to make a public\nannouncement regarding the transactions contemplated under this Agreement. By executing and delivering this agreement each of Creative Host and\nCompass confirms to the other that it is aware and that its Associates have been advised that the federal and state securities laws prohibit any person\nwho possesses material, non-public information about a company from purchasing or selling securities of such company, so long as such information\nremains material and non-public.\n8. Mutual Nonsolicitation. Creative Host and Compass each covenants and agrees that for a period expiring one (1) year after the date of this\nAgreement, the parties will not directly or indirectly solicit, induce, recruit or encourage any then-current employees of the other party that they\ncame in contact with in connection with their consideration of the Transaction to terminate their employment, or attempt to solicit, induce or recruit\nsuch specified employees of the other party. The publication of advertisements in newspapers and/or other publications of general circulation\n(including trade publications) shall not in any event be deemed a violation of any provision of this Agreement so long as such advertisements do not\nspecifically target any above-referenced employee of Creative Host or Compass.\n9. Standstill Provisions. During the one-year period commencing on the date of this letter agreement (the “Standstill Period"), except\npursuant to a Negotiated Transaction, neither Compass nor any of Compass’s Associates will, in any manner, directly or indirectly:\n5.\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Creative Host or any securities\nof any subsidiary or other affiliate of Creative Host, (ii) any acquisition of any assets of Creative Host or any assets of any subsidiary or other\naffiliate of Creative Host, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation,\ndissolution or extraordinary transaction involving Creative Host or any subsidiary or other affiliate of Creative Host, or involving any securities\nor assets of Creative Host or any securities or assets of any subsidiary or other affiliate of Creative Host, or (iv) any “solicitation” of “proxies”\n(as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Creative\nHost;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Creative Host;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Creative Host;\n(d) take any action that might require Creative Host to make a public announcement regarding any of the types of matters set forth in clause\n“(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clauses “(a)”, “(b)”, “(c)” or\n“(d)” of this sentence;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clauses “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of this\nsentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) publicly request or propose that Creative Host or any of Creative Host’s Associates amend, waive or consider the amendment or waiver\nof any provision set forth in this Section 9.\nNotwithstanding this Section 9, if (a)(i) the Board of Directors of Creative Host approves a transaction with any person and (ii) such transaction\nwould result in such person beneficially owning more than 50% of the outstanding voting securities of Creative Host or all or substantially all of\nCreative Host’s assets, or (b) any person or “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended,\nshall have commenced or publicly announced its intention to commence a tender or exchange offer for more than 50% of the outstanding voting\nsecurities of Creative Host, or any securities convertible into more than 50% of the outstanding voting securities of Creative Host, or any options,\nwarrants or other rights to acquire more than 50% of the outstanding voting securities of Creative Host, then Compass or any of Compass’s\nAssociates shall not be prohibited thereafter from taking any of the actions described in this Section 9.\n6.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.\n10. Term. The covenants and commitments of either party in this Agreement shall survive any termination of discussions between the parties,\nand shall continue for a period of two (2) years following the date of this Agreement.\n11. Successors and Assigns; Waiver and Amendment. The provisions of this Agreement shall inure to the benefit of and be binding upon\nCreative Host, Compass and their respective affiliates, successors and assigns, including any successor to Creative Host or Compass of substantially\nall of Creative Host’s or Compass’ assets or business, by merger, consolidation, purchase of assets, purchase of stock or otherwise. No failure or\ndelay by either party or any of its Associates in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and\nno single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right,\npower or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is\nvalidly executed on behalf of each of the parties and that refers specifically to the particular provision or provisions being waived or amended.\n12. Dispute Resolution and Governing Law. Should any dispute between the parties arise under this Agreement, Compass and Creative Host,\nthrough appropriately senior persons, shall first meet and attempt to resolve the dispute in face-to-face negotiations. This meeting shall occur within\nthirty days of the time the dispute arises.\nIf no resolution is reached, Compass and Creative Host shall, within forty-five days of the first meeting, attempt to settle the dispute by formal\nmediation. If the parties cannot agree upon the appointment of a mediator and the place of the mediation within sixty days of the first meeting, the\nmediation shall be administered by the American Arbitration Association in Wilmington, Delaware with the parties splitting the cost of the mediator.\nIf no resolution is reached in mediation, the dispute shall be resolved by binding arbitration before a three-arbitrator panel, administered by the\nAmerican Arbitration Association.\nThis Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware, and shall be\nbinding upon the parties hereto in the United States and worldwide.\nNotwithstanding the foregoing dispute resolution and governing law provisions, Compass and Creative Host shall each retain the right to seek\njudicial injunctive and other equitable relief, as provided in Section 13, where appropriate.\n13. Remedies; Severability. Each party agrees that its obligations hereunder are necessary and reasonable in order to protect the other party\nand the other party’s business, and expressly agrees that monetary damages may be inadequate to compensate the other party for any breach by either\nparty of any covenants and agreements set forth herein. Accordingly, each party\n7.\nagrees and acknowledges that any such violation or threatened violation will cause irreparable injury to the other party and that, in addition to any\nother remedies that may be available, in law, in equity or otherwise, the other party shall be entitled to injunctive relief against the threatened breach\nof this Agreement or the continuation of any such breach, without the necessity of proving actual damages. Each party also agrees that it will not\nseek and agrees to waive any requirement for the securing or posting of a bond in connection with the aggrieved party’s obtaining of equitable relief\npursuant to this Section 13. The equitable remedies referred to above will not be deemed to be the exclusive remedy for a breach of this Agreement,\nbut rather will be in addition to all other remedies available at law or in equity to the parties. The invalidity or unenforceability of any provision of\nthis Agreement shall not affect the validity or enforceability of any other provision of this Agreement.\n14. Complete Agreement. This Agreement constitutes the entire agreement between Compass and Creative Host regarding the subject matter\nhereof and supersedes any prior agreement between the parties hereto, including the Confidential Disclosure Agreement dated August 21, 2003,\nregarding the subject matter hereof.\n15. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one and the same instrument.\n[SIGNATURE PAGE TO FOLLOW]\n8.\nIn witness whereof, the parties have executed this Agreement as of the day and year first above written.\nCompass Group USA, Inc.\nBy:\n/s/ C. Palmer Brown\nTitle: VP Corporate Development\nCreative Host Services, Inc.\nBy:\n/s/ Sayed Ali\nTitle: President\n[SIGNATURE PAGE TO MUTUAL NONDISCLOSURE AGREEMENT]
9943c30609c49ce8ba0161c673e46cc6.pdf	jurisdiction party	EX-10 .47 19 b316817_ex10-47.txt STOCK PURCHASE AGREEMENT EXHIBIT D NON-COMPETITION AND NON -DISCLOSURE AGREEMENT AGREEMENT\n(this "Agreement"), made and entered into as of the ___ day of _________, 200 2, by and between COMMERCIAL CONSOLIDATORS CORP. , a c orporation\norganized under the laws of Alberta, Canada ("Purchaser "); AMERICAN WAY IMPORTING, INC. , a California corporation (the "Company"); and those\nindividuals who have executed this Agreement on the signature page under the designation "Stockholders" (individually, a "Stockholder" and collectively, the\n"Stockholders"); W I T N E S S E T H : WHEREAS, Purchaser has agreed to acquire from the Stockholders 100% of the shares of capital stock of the Company\npursuant to the terms of a stock purchase agreement dated January __, 2 002 (the "Purchase Agreement") among Purchaser, the Company, and the\nStockholders; and WHEREAS, by reason of their prior ownership of the capital stock of the Company and employment in the Company, each of the Stockholders\nhas detailed knowledge and possesses confidential information concerning the Company and the business and operations thereof, and WHEREAS, on the date\nhereof, the Company, (i) an Affiliate of Steven Javidzad, one of the Stockholders, is entering into separate consulting agreement (the "Consulting Agreement")\npursuant to which such Stockholders Affiliate will provide consulting services to the Company, and (ii) certain of the other Stockholders will continue to be\nemployed by the Company, and in connection with which such Stockholders will continue to have access to confidential and proprietary information relating to the\nbusiness of the Company; and WHEREAS, in order to induce Purchaser to consummate the transactions contemplated by the Purchase Agreement, and to\ninduce Purchaser to cause the Company to enter into the Consulting Agreement and to continue to employ certain of the other Stockholders, each of the\nStockholders has agreed, and Purchaser has required the Stockholders, to enter into this Agreement; NOW, THEREFORE , in consideration of the premises and\nthe mutual covenants and agreements contained herein, the parties hereby agree as follows: 1. Restrictive Covenants. (a) Each of the Stockholders do hereby\nacknowledge and agree that: (i) the business contacts, customers, suppliers, technology, know-how, trade secrets, marketing techniques and other aspects of the\nCompany have been of substantial value to the Company, and will hereafter provide Purchaser with substantial competitive advantage, (ii) such elements and\naspects of the Business are not generally known to the public or available through any source other than the Stockholders, and reasonable efforts have been\nmade to maintain the confidentiality thereof to the date hereof, (iii) they have detailed knowledge of and possesses confidential information concerning the\nCompany, and (iv) by reason of their duties and responsibilities pursuant to the Consulting Agreement and their continued employment with the Company, they\nwill become privy to confidential and proprietary information of the Company. 1 (b) Each of the Stockholders do hereby agree, for the benefit of Purchaser, the\nCompany and their respective subsidiaries, successors and assigns, that neither he nor she shall, directly or indirectly, for himself or herself or through or on\nbehalf of any other person or entity: (i) at any time from and after the date hereof, divulge, transmit or otherwise disclose or cause to be divulged, transmitted or\notherwise disclosed, any business contacts, client or customer lists, technology, know-how, trade secrets, marketing techniques, contracts or other confidential or\nproprietary information of or relating to the Company or its subsidiaries of whatever nature (provided, however, that for purposes hereof, information shall not be\nconsidered to be confidential or proprietary if (A) it is a matter of common knowledge or public record, (B) it is generally known throughout the industry, or (C)\nsuch Stockholder can demonstrate that such information was already known to the recipient thereof other than by reason of any breach of any obligation under\nthis Agreement or any other confidentiality or nondisclosure agreement); and/or (ii) at any time from the date hereof through and including February 28, 2006,\ninvest, carry on, engage or become involved, either as an owner, principal, agent, advisor, stockholder (excluding passive ownership of not more than 1% of the\noutstanding shares of a publicly held corporation if such ownership does not involve managerial or operational involvement or activity), manager, partner, joint\nventurer, participant or consultant, in any business enterprise (other than Purchaser, the Company and their subsidiaries, successors or assigns) which derives\n10% or more of their consolidated revenues from the business of purchasing, marketing, distributing and selling cellular telephones, pagers and other\ntelecommunications devices (the "Business"). (iii) Notwithstanding the foregoing provisions of paragraph 1(b)(ii), it shall not be a violation of paragraph 1(b)(ii) for\nany of the Stockholders to own an equity interest in Wireless Lines Corporation or Platinum Wireless Corporation , both Affiliates of the Stockholders (collectively,\n"Wireless Lines"), if and for so long as Wireless Lines or any subsidiary or Affiliate of such corporations shall not: (A) sell any products, on a wholesale basis,\nwhich are carried and sold by the Company on the Closing Date, other than not more than 5,000 cellular phones per year which may be sold on a bulk basis by\nWireless Lines; or (B) otherwise engage in direct competition with the Business now or hereafter conducted by the Company. (c) Unless otherwise separately\ndefined in this Agreement, when used herein, all capitalized terms shall have the same meaning as is defined in the Purchase Agreement. 2. Remedies. The\nparties hereby acknowledge and agree that any breach by any of the Stockholders or any of their respective Affiliates, directly or indirectly, of any of the foregoing\nrestrictive covenants will cause Purchaser and the Company irreparable injury for which there is no adequate remedy at law. Accordingly, the Stockholders do\nhereby expressly agree that, in the event that any of the Stockholders or any of their respective Affiliates shall commit any such breach or any threatened breach\nhereunder, directly or indirectly, Purchaser and/or the Company shall be entitled, in addition to any and all other remedies available at law, to seek and obtain,\nwithout requirement of posting any bond or other security, injunctive and/or other equitable relief to require specific performance of or prevent, restrain and/or\nenjoin the breaching party or parties under the provisions of this Agreement. 2 3 . Expenses. In the event of any dispute under or arising out of this Agreement, the\nprevailing party in such dispute shall be entitled to recover from the non-prevailing party, in addition to any damages and/or other relief that may be awarded, its\nreasonable costs and expenses (including reasonable attorneys' fees) incurred in connection with prosecuting or defending the subject dispute. 4 . Benefits and\nObligations. This Agreement shall be binding upon and inure to the benefit of and shall be enforceable by Purchaser and/or the Company and their respective\naffiliates, successors and assigns, and the Stockholders and their respective affiliates, successors and assigns; provided, however , that neither Russell's nor\nSpeciale's obligations contained herein may not be delegated or assigned. 5. Governing Law. This Agreement shall be governed by and construed in accordance\nwith the laws of the State of California, United States of America. 6. Resolution of Certain Disputes. Except for any claim or proceeding seeking to assert or obtain\nequitable remedies hereunder (including, without limitation, injunctive relief and/or specific enforcement), which claim or proceeding may be asserted or brought in\nany court of competent jurisdiction sitting in California (as to which courts, the parties hereby consent to the jurisdiction thereof), any dispute involving the\ninterpretation or application of this Agreement shall be resolved in accordance with the procedures specified in the Purchase Agreement. 7. Severability. It is\nacknowledged, understood and agreed that the restrictions contained in this Agreement (a) are made for good, valuable and adequate consideration received and\nto be received by each of the Stockholders, (b) are reasonable and necessary, in terms of the time, geographic scope and nature of the restrictions, for the\nprotection of Purchaser and/or the Company and their respective Affiliates and their good will, and (c) will not pose any undue hardship on any Stockholder or\nmaterially impair his or her ability to support himself. It is intended that said provisions be fully severable, and in the event that any of the foregoing restrictions, or\nany portion of the foregoing restrictions, shall be deemed contrary to law, invalid or unenforceable in any respect by any court or other tribunal of competent\njurisdiction, then such restrictions shall be deemed to be amended, modified and reduced in scope and effect, only to that extent necessary to render same valid\nand enforceable, and all other restrictions shall be unaffected and shall remain in full force and effect. 8. Waiver, Amendment or Modification. Neither this\nAgreement nor any of the terms and conditions hereof may be waived, amended or modified except by means of a written instrument duly executed by the party\nto be charged therewith. No waiver of any provision, performance or default hereunder in any instance shall be construed as a continuing waiver of such\nprovision, performance or default, or a waiver of any other provision, performance or default, or of any future performance or default. 3 9. Notices. Any notice,\nrequest, demand or other communication required or permitted under this Agreement shall be in writing and shall be given in the manner provided in the\nPurchase Agreement. 10. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of\nwhich shall together constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set\nforth above. COMMERCIAL CONSOLIDATORS CORP . By:______________________________ AMERICAN WAY IMPORTING, INC.\nBy:______________________________ STOCKHOLDERS: _________________________ STEVEN JAVIDZAD _________________________ SHAWN\nJAVIDZAD _________________________ JEFF JAVIDZAD _________________________ BOBBY MELAMED 4\n_________________________\nBAZE\nMELAMED _________________________ _________________________ _________________________ 5	EX-10.47 19 b316817_ex10-47.txtSTOCK PURCHASE AGREEMENT EXHIBIT D NON-COMPETITION AND NON-DISCLOSURE AGREEMENT AGREEMENT\n(this "Agreement"), made and entered into as ofthe ___ day of _________ , 2002, by and between COMME RC IAL CONSOLIDATO RS CORP ., a corporation\norganized underthe laws ofAlberta, Canada ("Purchaser "); AMERICAN WAY IM PO RTING, INC., a California corporation (the "Company"); and those\nindividuals who have executed this Agreementon Ihe signature page under Ihe designation "Stockholders" (individually, a "Stockholder" and collectively, Ihe\n"Stockholders"); W IT N E S S E T H : WHEREAS, Purchaser has agreed to acquire from the Stockholders 100% of the shares ofcapital stock oflhe Company\npursuantto Ihe terms of a stock purchase agreementdatedJ anuary __, 2002 (the "P urchase Agreement") among Purchaser, the Company, and the\nStockholders; and WHEREAS, by reason of Iheir prior ownership ofthe capital stock of Ihe Company and employment in the Company, each ofthe Stockholders\nhas detailed knowledge and possesses confidential information concerning Ihe Company and the business and operations Ihereof, and WHE REAS, on the date\nhereof, Ihe Company, (i) an Affiliate of Steven J avidzad, one ofthe Stockholders, is entering into separate consulting agreement (the "Consulting Agreement")\npursuantto which such Stockholders Affiliate will provide consulting services to the Company, and (ii) certain of Ihe other Stockholders will continue to be\nemployed by Ihe Company, and in connection with which such Stockholders will continue to have access to confidential and proprietary information relating to Ihe\nbusiness of Ihe Company; and WHEREAS, in order to induce Purchaser to consummate the transactions contemplated by Ihe Purchase Agreement, and to\ninduce Purchaser to cause the Company to enter into Ihe Consulting Agreement and to continue to employ certain of the other Stockholders, each of Ihe\nStockholders has agreed, and Purchaser has required the Stockholders, to enter into this Agreement; NOW, THE RE FORE, in consideration of Ihe premises and\nIhe mutual covenants and agreements contained herein, the parties hereby agree as follows: 1. Restrictive CovenanIs. (a) Each ofthe Stockholders do hereby\nacknowledge and agree that: (i) the business contacts, customers, suppliers, technology, know-how, trade secreIs, marketing techniques and other aspects ofthe\nCompany have been of substantial value to Ihe Company, and will hereafter provide Purchaser with substantial competitive advantage, (ii) such elemenIs and\naspects ofthe Business are notgenerally known to Ihe public or available Ihrough any source other Ihan the Stockholders, and reasonable efforts have been\nmade to maintain the confidentiality thereofto the date hereof, (iii) they have detailed knowledge of and possesses confidential information concerning Ihe\nCompany, and (iv) by reason of their duties and responsibilities pursuant to the Consulting Agreement and their continued employment with the Company, they\nwill become privy to confidential and proprietary information of Ihe Company. 1 (b) Each of the Stockholders do hereby agree, for the benefit of Purchaser, the\nCompany and their respective subsidiaries, successors and assigns, that neither he nor she shall, direcij or indirectly, for himself or herself or through or on\nbehalf of any olher person or entity: (i) at any time from and after the date hereof, divulge, transmitor otherwise disclose or cause to be divulged, transmitted or\nothenNise disclosed, any business contacts, clientor customer lists, technology, know-how, trade secrets, marketing techniques, contracts or other confidential or\nproprietary information of or relating to the Company or its subsidiaries of whatever nature (provided, however, thatfor purposes hereof, information shall not be\nconsidered to be confidential or proprietary if (A) it is a matter ofcommon knowledge or public record, (B) it is generally known Ihroughout Ihe industry, or (C)\nsuch Stockholder can demonstrate Ihatsuch information was already known to the recipient thereofolher than by reason of any breach of any obligation under\nIhis Agreement or any olher confidentiality or nondisclosure agreement); and/or (ii) at any time from Ihe date hereof through and including February 28, 2006,\ninvest, carry on, engage or become involved, eilher as an owner, principal, agent, advisor, stockholder (excluding passive ownership of not more than 1% ofthe\nouIstanding shares of a publicly held corporation ifsuch ownership does not involve managerial or operational involvementor activity), manager, partner, joint\nventurer, participant or consultant, in any business enterprise (other than Purchaser, the Company and Iheir subsidiaries, successors or assigns) which derives\n10% or more oftheir consolidated revenues from the business of purchasing, marketing, distributing and selling cellular telephones, pagers and other\ntelecommunications devices (Ihe "Business"). (iii) Notwithstanding Ihe foregoing provisions ofparagraph 1(b)(ii), itshall notbe a violation of paragraph 1(b)(ii) for\nany of Ihe Stockholders to own an equity interest in Wireless Lines Corporation or Platinum Wireless Corporation, both Affiliates of Ihe Stockholders (collectively,\n"Wireless Lines"), if and for so long as Wireless Lines or any subsidiary or Affiliate ofsuch corporations shall not: (A) sell any products, on a wholesale basis,\nwhich are carried and sold by the Company on the Closing Date, olher than not more Ihan 5,000 cellular phones per year which may be sold on a bulk basis by\nWireless Lines; or (B) othenNise engage in direct competition wilh the Business now or hereafter conducted by Ihe Company. (c) Unless olhenNise separately\ndefined in this Agreement, when used herein, all capitalized terms shall have the same meaning as is defined in the Purchase Agreement. 2. Remedies. The\nparties hereby acknowledge and agree that any breach by any of Ihe Stockholders or any oftheir respective Affiliates, directly or indirectly, of any of Ihe foregoing\nrestrictive covenants will cause Purchaser and the Company irreparable injury for which there is no adequate remedy at law. Accordingly, the Stockholders do\nhereby expressly agree that, in Ihe eventthat any of Ihe Stockholders or any of their respective Affiliates shall commit any such breach or any threatened breach\nhereunder, directly or indirecij, Purchaser and/or Ihe Company shall be entitled, in addition to any and all other remedies available at law, to seek and obtain,\nwithout requirement of posting any bond or other security, injunctive and/or other equitable relief to require specific performance ofor prevent, restrain and/or\nenjoin the breaching party or parties under Ihe provisions of Ihis Agreement. 2 3. Expenses. In the event of any dispute under or arising out of Ihis Agreement, the\nprevailing party in such dispute shall be entitled to recover from the non-prevailing party, in addition to any damages and/or olher relief Ihat may be awarded, its\nreasonable cosIs and expenses (including reasonable attorneys' fees) incurred in connection with prosecuting or defending the subjectdispute. 4. Benefits and\nObligations. This Agreement shall be binding upon and inure to the benefit of and shall be enforceable by Purchaser and/or the Company and their respective\naffiliates, successors and assigns, and Ihe Stockholders and their respective affiliates, successors and assigns; provided, however , that neither Russell's nor\nSpeciale's obligations contained herein may not be delegated or assigned. 5. Governing Law. This Agreementshall be governed by and construed in accordance\nwith the laws ofthe State of California, United States ofAmerica. 6. Resolution of Certain Disputes. Except for any claim or proceeding seeking to assert or obtain\nequitable remedies hereunder (including, without limitation, injunctive relief and/or specific enforcement), which claim or proceeding may be asserted or brought in\nany court of competentjurisdiction sitting in California (as to which courIs, the parties hereby consent to the jurisdiction Ihereof), any dispute involving the\ninterpretation or application ofthis Agreementshall be resolved in accordance with Ihe procedures specified in Ihe Purchase Agreement. 7. Severability. It is\nacknowledged, understood and agreed Ihat Ihe restrictions contained in Ihis Agreement (a) are made for good, valuable and adequate consideration received and\nto be received by each of Ihe Stockholders, (b) are reasonable and necessary, in terms ofthe time, geographic scope and nature of Ihe restrictions, for the\nprotection of Purchaser and/or Ihe Company and their respective Affiliates and their good will, and (c) will not pose any undue hardship on any Stockholder or\nmaterially impair his or her ability to support himself. It is intended thatsaid provisions be fully severable, and in Ihe eventthat any of Ihe foregoing restrictions, or\nany portion of Ihe foregoing restrictions, shall be deemed contrary to law, invalid or unenforceable in any respect by any court or other tribunal of competent\njurisdiction, Ihen such restrictions shall be deemed to be amended, modified and reduced in scope and effect, only to thatextent necessary to render same valid\nand enforceable, and all other restrictions shall be unaffected and shall remain in full force and effect. 8. Waiver, Amendmentor Modification. Neither this\nAgreement nor any ofthe terms and conditions hereof may be waived, amended or modified except by means of a written instrumentduly executed by Ihe party\nto be charged Iherewith. No waiver of any provision, performance or default hereunder in any instance shall be construed as a continuing waiver of such\nprovision, performance or default, or a waiver of any olher provision, performance or default, or of any future performance or default. 3 9. Notices. Any notice,\nrequest, demand or olher communication required or permitted under this Agreementshall be in writing and shall be given in the manner provided in the\nPurchase Agreement. 10. Counterparts. This Agreement may be executed in any number ofcounterparIs, each ofwhich shall be deemed an original, but all of\nwhich shall together constitute one and Ihe same instrument. IN WITN ESS WHE REOF, the parties hereto have executed this Agreement as of the date firstset\nforth above. COMMERCIAL CONSOLIDATORS CORP. By: AMERICAN WAY IMPORTING, INC.\nBy: STOCKHOLDERS: STEVENJAVIDZAD SHAWN\nJEFFJAVIDZAD BOBBY MELAMED4 BAZE\nMELAMED	EX-10.47 19 STOCK PURCHASE AGREEMENT EXHIBIT D NON-COMPETITION AND NON-DISCLOSURE AGREEMENT AGREEMENT\n(this "Agreement"), made and entered into as of the\nday of\n2002, by and between COMMERCIAL CONSOLIDATORS CORP. a corporation\norganized\nunder the laws of Alberta, Canada Purchaser AMERICAN WAY IMPORTING, INC., a California corporation (the "Company"); and those\nindividuals who have executed this Agreement on the signature page under the designation "Stockholders" (individually, a "Stockholder" and collectively, the\n"Stockholders") W H WHEREAS, Purchaser has agreed to acquire from the Stockholders 100% of the shares of capital stock of the Company\npursuant to the terms of a stock purchase agreement dated J anuary 2002 (the "Purchase Agreement") among Purchaser, the Company, and the\nStockholders; and WHEREAS, by reason of their prior ownership of the capita stock of the Company and employment in the Company, each of the Stockholders\nhas detailed knowledge and possesses confidentia information concerning the Company and the business and operations thereof, and WHEREAS, on the date\nhereof, the Company, (i) an Affiliate of Steven J avidzad, one of the Stockholders, is entering into separate consulting agreement (the Consulting Agreement")\npursuant to which such Stockholders Affiliate will provide consulting services to the Company, and (ii) certain of the other Stockholders will continue to be\nemployed by the Company, and in connection with which such Stockholders will continue to have access to confidential and proprietary information relating to the\nbusiness of the Company; and WHEREAS, in order to induce Purchaser to consummate the transactions contemplated by the Purchase Agreement, and to\ninduce Purchaser to cause the Company to enter into the Consulting Agreement and to continue to employ certain of the other Stockholders, each of the\nStockholders has agreed, and Purchaser has required the Stockholders, to enter into this Agreement; NOW, THEREFORE, in consideration of the premises and\nthe mutual covenants and agreements contained herein, the parties hereby agree as follows: 1. estrictive Covenants (a) ach of the Stockholders do hereby\nacknowledge and agree that: (i) the business contacts, customers, suppliers, technology, know-how, trade secrets, marketing techniques and other aspects of the\nCompany have been of substantial value to the Company, and will hereafter provide Purchaser with substantial competitive advantage, (ii) such elements and\naspects of the Business are not generally known to the public or available through any source other than the Stockholders, and reasonable efforts have been\nmade to maintain the confidentiality thereof to the date hereof, (iii) they have detailed knowledge of and possesses confidential information concerning the\nCompany, and (iv) by reason of their duties and responsibilities pursuant to the Consulting Agreement and their continued employment with the Company,\nthey\nwill become privy to confidential and proprietary information of the Company. 1 (b) Each of the Stockholders do hereby agree, for the benefit of Purchaser, the\nCompany and their respective subsidiaries, successors and assigns, that neither he nor she shall, directly or indirectly, for himself or herself or through or on\nbehalf of any other person or entity: (i) at any time from and after the date hereof, divulge, transmit or otherwise disclose or cause to be divulged, transmitted or\notherwise disclosed, any business contacts, client or customer lists, technology, know-how, trade secrets, marketing techniques, contracts or other confidential\nor\nproprietary information of or relating to the Company or its subsidiaries of whatever nature (provided, however, that for purposes hereof, information shall not be\nconsidered to be confidential or proprietary if (A it is a matter of common knowledge or public record, (B) it is generally known throughout the industry, or (C)\nsuch Stockholder can demonstrate that such information was already known to the recipient thereof other than by reason of any breach of any obligation\nunder\nthis Agreement or any other confidentiality or nondisclosure agreement); and/or (ii) at any time from the date hereof through and including February 28, 2006,\ninvest, carry on, engage or become involved, either as an owner, principal, agent, advisor, stockholder (excluding passive ownership of not more than 1% of the\noutstanding shares of a publicly held corporation if such ownership does not involve managerial or operational involvement or activity), manager, partner, joint\nventurer, participant or consultant, in any business enterprise (other than urchaser, the Company and their subsidiaries, successors or assigns) which derives\n10% or more of their consolidated revenues from the business of purchasing, marketing, distributing and selling cellular telephones, pagers and other\ntelecommunications devices (the "Business"). (iii) Notwithstanding the foregoing provisions of paragraph 1(b)(ii), it shall not be a violation of paragraph 1(b)(ii) for\nany of the Stockholders to own an equity interest in Wireless Lines Corporation or Platinum Wireless Corporation both Affiliates of the Stockholders (collectively,\n"Wireless Lines"), if and for so long as Wireless Lines or any subsidiary or Affiliate of such corporations shall not: (A) sell any products, on a wholesale basis,\nwhich are carried and sold by the Company on the Closing Date, other than not more than 5,000 cellular phones per year which may be sold on a bulk basis by\nWireless Lines; or (B) otherwise engage in direct competition with the Business now or hereafter conducted by the Company. (c) Unless otherwise separately\ndefined in this Agreement, when used herein, all capitalized terms shal have the same meaning as is defined in the Purchase Agreement. 2. Remedies. The\nparties hereby acknowledge and agree that any breach by any of the Stockholders or any of their respective Affiliates, directly or indirectly, of any of the foregoing\nrestrictive covenants will cause Purchaser and the Company irreparable injury for which there is no adequate remedy at law. Accordingly, the Stockholders do\nhereby expressly agree that, in the event that any of the Stockholders or any of their respective Affiliates shall commit any such breach or any threatened breach\nhereunder, directly or indirectly, Purchaser and/or the Company shall be entitled, in addition to any and all other remedies available at law, to seek and obtain,\nwithout requirement of posting any bond or other security, injunctive and/or other equitable relief to require specific performance of or prevent, restrain and/or\nenjoin the breaching party or parties under the provisions of this Agreement. 2 3. xpenses. In the event of any dispute under or arising out of this Agreement, the\nprevailing party in such dispute shall be entitled to recover from the non-prevailing party, in addition to any damages and/or other relief that may be awarded, its\nreasonable costs and expenses (including reasonable attorneys' fees) incurred in connection with prosecuting or defending the subject dispute 4. Benefits and\nObligations. This Agreement shall be binding upon and inure to the benefit of and shall be enforceable by Purchaser and/or the Company and their respective\naffiliates, successors and assigns, and the Stockholders and their respective affiliates, successors and assigns; provided, however that neither Russell's nor\npeciale's obligations contained herein may not be delegated or assigned. 5. Governing Law. This Agreement shall be governed by and construed in accordance\nwith the laws of the State of California, United States of America. 6. Resolution of Certain Disputes. Except for any claim or proceeding seeking to assert or obtain\nequitable remedies hereunder (including, without limitation, injunctive relief and/or specific enforcement), which claim or proceeding may be asserted or brought\nin\nany court of competent jurisdiction sitting in California (as to which courts, the parties hereby consent to the jurisdiction thereof), any dispute involving the\ninterpretation or application of this Agreement shall be resolved in accordance with the procedures specified in the Purchase Agreement. 7. Severability. It is\nacknowledged, understood and agreed that the restrictions contained in this Agreement (a) are made for good, valuable and adequate consideration received and\nto be received by each of the Stockholders, (b) are reasonable and necessary, in terms of the time, geographic scope and nature of the restrictions, for\nthe\nprotection of Purchaser and/or the Company and their respective Affiliates and their good will, and (c) will not pose any undue hardship on any Stockholder or\nmaterially impair his or her ability to support himself. It is intended that said provisions be fully severable, and in the event that any of the foregoing restrictions,\nor\nany portion of the foregoing restrictions, shall be deemed contrary to law, invalid or unenforceable in any respect by any court or other tribunal of competent\njurisdiction, then such restrictions shall be deemed to be amended, modified and reduced in scope and effect, only to that extent necessary to render same valid\nand enforceable, and all other restrictions shall be unaffected and shall remain in full force and effect. 8. Waiver, Amendment or Modification. Neither this\nAgreement nor any of the terms and conditions hereof may be waived, amended or modified except by means of a written instrument duly executed by the party\nto be charged therewith. No waiver of any provision, performance or default hereunder in any instance shall be construed as a continuing waiver of such\nprovision, performance or default, or a waiver of any other provision, performance or default, or of any future performance or default. 3 9. Notices. Any notice,\nrequest, demand or other communication required or permitted under this Agreement shall be in writing and shal be given in the manner provided in the\nPurchase Agreement. 10. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of\nwhich shall together constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set\nforth above. COMMERCIAL CONSOLIDATORS CORP. By\nAMERICAN WAY IMPORTING, INC.\nBy\nSTOCKHOLDERS\nSTEVEN AVIDZAD\nSHAWN\nAVIDZAD\nEFF AVIDZAD\nBOBBY MELAMED 4\nBAZE\nLO	EX-10 .47 19 b316817_ex10-47.txt STOCK PURCHASE AGREEMENT EXHIBIT D NON-COMPETITION AND NON -DISCLOSURE AGREEMENT AGREEMENT\n(this "Agreement"), made and entered into as of the ___ day of _________, 200 2, by and between COMMERCIAL CONSOLIDATORS CORP. , a c orporation\norganized under the laws of Alberta, Canada ("Purchaser "); AMERICAN WAY IMPORTING, INC. , a California corporation (the "Company"); and those\nindividuals who have executed this Agreement on the signature page under the designation "Stockholders" (individually, a "Stockholder" and collectively, the\n"Stockholders"); W I T N E S S E T H : WHEREAS, Purchaser has agreed to acquire from the Stockholders 100% of the shares of capital stock of the Company\npursuant to the terms of a stock purchase agreement dated January __, 2 002 (the "Purchase Agreement") among Purchaser, the Company, and the\nStockholders; and WHEREAS, by reason of their prior ownership of the capital stock of the Company and employment in the Company, each of the Stockholders\nhas detailed knowledge and possesses confidential information concerning the Company and the business and operations thereof, and WHEREAS, on the date\nhereof, the Company, (i) an Affiliate of Steven Javidzad, one of the Stockholders, is entering into separate consulting agreement (the "Consulting Agreement")\npursuant to which such Stockholders Affiliate will provide consulting services to the Company, and (ii) certain of the other Stockholders will continue to be\nemployed by the Company, and in connection with which such Stockholders will continue to have access to confidential and proprietary information relating to the\nbusiness of the Company; and WHEREAS, in order to induce Purchaser to consummate the transactions contemplated by the Purchase Agreement, and to\ninduce Purchaser to cause the Company to enter into the Consulting Agreement and to continue to employ certain of the other Stockholders, each of the\nStockholders has agreed, and Purchaser has required the Stockholders, to enter into this Agreement; NOW, THEREFORE , in consideration of the premises and\nthe mutual covenants and agreements contained herein, the parties hereby agree as follows: 1. Restrictive Covenants. (a) Each of the Stockholders do hereby\nacknowledge and agree that: (i) the business contacts, customers, suppliers, technology, know-how, trade secrets, marketing techniques and other aspects of the\nCompany have been of substantial value to the Company, and will hereafter provide Purchaser with substantial competitive advantage, (ii) such elements and\naspects of the Business are not generally known to the public or available through any source other than the Stockholders, and reasonable efforts have been\nmade to maintain the confidentiality thereof to the date hereof, (iii) they have detailed knowledge of and possesses confidential information concerning the\nCompany, and (iv) by reason of their duties and responsibilities pursuant to the Consulting Agreement and their continued employment with the Company, they\nwill become privy to confidential and proprietary information of the Company. 1 (b) Each of the Stockholders do hereby agree, for the benefit of Purchaser, the\nCompany and their respective subsidiaries, successors and assigns, that neither he nor she shall, directly or indirectly, for himself or herself or through or on\nbehalf of any other person or entity: (i) at any time from and after the date hereof, divulge, transmit or otherwise disclose or cause to be divulged, transmitted or\notherwise disclosed, any business contacts, client or customer lists, technology, know-how, trade secrets, marketing techniques, contracts or other confidential or\nproprietary information of or relating to the Company or its subsidiaries of whatever nature (provided, however, that for purposes hereof, information shall not be\nconsidered to be confidential or proprietary if (A) it is a matter of common knowledge or public record, (B) it is generally known throughout the industry, or (C)\nsuch Stockholder can demonstrate that such information was already known to the recipient thereof other than by reason of any breach of any obligation under\nthis Agreement or any other confidentiality or nondisclosure agreement); and/or (ii) at any time from the date hereof through and including February 28, 2006,\ninvest, carry on, engage or become involved, either as an owner, principal, agent, advisor, stockholder (excluding passive ownership of not more than 1% of the\noutstanding shares of a publicly held corporation if such ownership does not involve managerial or operational involvement or activity), manager, partner, joint\nventurer, participant or consultant, in any business enterprise (other than Purchaser, the Company and their subsidiaries, successors or assigns) which derives\n10% or more of their consolidated revenues from the business of purchasing, marketing, distributing and selling cellular telephones, pagers and other\ntelecommunications devices (the "Business"). (iii) Notwithstanding the foregoing provisions of paragraph 1(b)(ii), it shall not be a violation of paragraph 1(b)(ii) for\nany of the Stockholders to own an equity interest in Wireless Lines Corporation or Platinum Wireless Corporation , both Affiliates of the Stockholders (collectively,\n"Wireless Lines"), if and for so long as Wireless Lines or any subsidiary or Affiliate of such corporations shall not: (A) sell any products, on a wholesale basis,\nwhich are carried and sold by the Company on the Closing Date, other than not more than 5,000 cellular phones per year which may be sold on a bulk basis by\nWireless Lines; or (B) otherwise engage in direct competition with the Business now or hereafter conducted by the Company. (c) Unless otherwise separately\ndefined in this Agreement, when used herein, all capitalized terms shall have the same meaning as is defined in the Purchase Agreement. 2. Remedies. The\nparties hereby acknowledge and agree that any breach by any of the Stockholders or any of their respective Affiliates, directly or indirectly, of any of the foregoing\nrestrictive covenants will cause Purchaser and the Company irreparable injury for which there is no adequate remedy at law. Accordingly, the Stockholders do\nhereby expressly agree that, in the event that any of the Stockholders or any of their respective Affiliates shall commit any such breach or any threatened breach\nhereunder, directly or indirectly, Purchaser and/or the Company shall be entitled, in addition to any and all other remedies available at law, to seek and obtain,\nwithout requirement of posting any bond or other security, injunctive and/or other equitable relief to require specific performance of or prevent, restrain and/or\nenjoin the breaching party or parties under the provisions of this Agreement. 2 3 . Expenses. In the event of any dispute under or arising out of this Agreement, the\nprevailing party in such dispute shall be entitled to recover from the non-prevailing party, in addition to any damages and/or other relief that may be awarded, its\nreasonable costs and expenses (including reasonable attorneys' fees) incurred in connection with prosecuting or defending the subject dispute. 4 . Benefits and\nObligations. This Agreement shall be binding upon and inure to the benefit of and shall be enforceable by Purchaser and/or the Company and their respective\naffiliates, successors and assigns, and the Stockholders and their respective affiliates, successors and assigns; provided, however , that neither Russell's nor\nSpeciale's obligations contained herein may not be delegated or assigned. 5. Governing Law. This Agreement shall be governed by and construed in accordance\nwith the laws of the State of California, United States of America. 6. Resolution of Certain Disputes. Except for any claim or proceeding seeking to assert or obtain\nequitable remedies hereunder (including, without limitation, injunctive relief and/or specific enforcement), which claim or proceeding may be asserted or brought in\nany court of competent jurisdiction sitting in California (as to which courts, the parties hereby consent to the jurisdiction thereof), any dispute involving the\ninterpretation or application of this Agreement shall be resolved in accordance with the procedures specified in the Purchase Agreement. 7. Severability. It is\nacknowledged, understood and agreed that the restrictions contained in this Agreement (a) are made for good, valuable and adequate consideration received and\nto be received by each of the Stockholders, (b) are reasonable and necessary, in terms of the time, geographic scope and nature of the restrictions, for the\nprotection of Purchaser and/or the Company and their respective Affiliates and their good will, and (c) will not pose any undue hardship on any Stockholder or\nmaterially impair his or her ability to support himself. It is intended that said provisions be fully severable, and in the event that any of the foregoing restrictions, or\nany portion of the foregoing restrictions, shall be deemed contrary to law, invalid or unenforceable in any respect by any court or other tribunal of competent\njurisdiction, then such restrictions shall be deemed to be amended, modified and reduced in scope and effect, only to that extent necessary to render same valid\nand enforceable, and all other restrictions shall be unaffected and shall remain in full force and effect. 8. Waiver, Amendment or Modification. Neither this\nAgreement nor any of the terms and conditions hereof may be waived, amended or modified except by means of a written instrument duly executed by the party\nto be charged therewith. No waiver of any provision, performance or default hereunder in any instance shall be construed as a continuing waiver of such\nprovision, performance or default, or a waiver of any other provision, performance or default, or of any future performance or default. 3 9. Notices. Any notice,\nrequest, demand or other communication required or permitted under this Agreement shall be in writing and shall be given in the manner provided in the\nPurchase Agreement. 10. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of\nwhich shall together constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set\nforth above. COMMERCIAL CONSOLIDATORS CORP . By:______________________________ AMERICAN WAY IMPORTING, INC.\nBy:______________________________ STOCKHOLDERS: _________________________ STEVEN JAVIDZAD _________________________ SHAWN\nJAVIDZAD _________________________ JEFF JAVIDZAD _________________________ BOBBY MELAMED 4\n_________________________\nBAZE\nMELAMED _________________________ _________________________ _________________________ 5
995ae558bdeb22005bc8807f3924c60e.pdf	effective_date jurisdiction party	Confidentiality and Non-Compete Agreement\nIn consideration of my employment by the Company, or future employment with an affiliate to whom I am transferred (together the “Company”), the compensation and other benefits to be received by me from the Company, I agree that:\n1. Definitions\nThe term “Confidential Information” as used in this Agreement includes all business information and records which relate to the Company or to parties working with the Company under a confidentiality agreement, and which are not\nknown to the public generally, including, but not limited to, technical notebook records, technical reports, patent applications, machine equipment, computer software, models, process and product designs including any drawings and\ndescriptions, unwritten knowledge and “know-how”, operating instructions, training manuals, production and development processes, production or other schedules, customer lists, customer buying records, product sales records, sales\nrequests, territory listings, market surveys, plans including marketing plans and long-range plans, salary information, contracts, supplier lists, product costs, policy statements, policy procedures, policy manuals, flowcharts, computer\nprintouts, program listings, reproductions and correspondence.\nThe term “Invention” as used in this Agreement includes any discovery, improvement, design or idea, patentable, copywriteable or otherwise, which relates to any activity or business in which the Company is engaged or any process,\nequipment, material, product or method (including computer software) in which the Company has any direct or indirect interest.\n2. Inventions\nI will disclose promptly to the Company any Invention conceived, developed or perfected by me, either alone or jointly with another or others, while I am an employee, whether or not such conception, development or perfection occurs\nduring the hours of my employment.\nI grant to the Company without further compensation, all my right, title and interest in and to any such Invention for the sole use and benefit of the Company, together with all U.S. and foreign patents, trademarks or copyrights that may at\nany time be granted, and all reissues, renewals and extensions of such patents, trademarks or copyrights. At the request and expense of the Company, I will at any time do what the Company reasonably believes to be necessary to assist the\nCompany to vest full right and title to each such Invention in the Company, enable the Company to obtain and maintain full right and title in any country, prosecute applications for and secure patents (including their reissue, renewal and\nextension), trademarks, copyrights and any other form of protection for each such Invention, and prosecute or defend any interference or opposition which may be declared involving any such application or patent and any litigation in\nwhich the Company may be involved concerning any such Invention. This will include preparing, executing and delivering any written document, drawings, flowcharts, or computer printouts. The provisions of this section will continue\nafter I stop working for the Company and shall be binding on my executors, administrators and assigns, unless waived in writing by the Company.\n11\n3. Confidential Information\nI have not disclosed and will not disclose to the Company, and I will not use, in the discharge of my duties as an employee of the Company, any trade secret or confidential information belonging to a former employer or other person and\nwhich has been classified by the former employer or other person as a trade secret or confidential information. The limitation set forth in this section shall not apply to matters which (a) are or become public knowledge, (b) were\npreviously known to the Company, (c) are subsequently received by the Company from a third party, or (d) are independently derived by the Company.\nI will not, directly or indirectly, during or at any time after the period of my employment by the Company, use for myself or others, or disclose to others, any Confidential Information, no matter how such information becomes known to\nme, unless I first obtain the Company’s written consent.\nWhen I leave the Company’s employ, or at any other time upon request by the Company, I will promptly deliver to the Company all documents and records, including but not limited to those listed under the definition of Confidential\nInformation, which are in my possession or under my control and which pertain to the Company, any of its activities or any of my activities while in the course of my employment and all copies thereof. I will not retain or deliver to any\nothers copies of these documents or records.\n4. Non-Competition\nI acknowledge and agree that the Company’s business competes upon a worldwide basis, and that the degree of competition in that business is high. I recognize that the Company may assign me to duties in a geographic area or specific\nmarket. I agree that, unless I first obtain the Company’s written consent, I will not during my employment with the Company and for a period of two (2) years following the termination of my employment (provided, however, that if I am\nemployed by the Company for less than two (2) years, the post-employment period to which this section applies shall be the greater of six (6) months or the length of my employment in any capacity), directly or indirectly or through others,\nindividually, or as a member, officer, director, employee, agent, or investor of any partnership or entity (except ownership of not more than one percent (1%) of the outstanding publicly traded stock of any company):\n(i) participate in the ownership, management, operation or control of, or work for (as an employee, consultant or independent contractor) or have any material financial interest in, any business competitive with the Company in (a) any\nmarket in which the company for which I have worked in the two (2) preceding years has sold or attempted to sell any of its product in the two (2) years preceding my termination or (b) if the Company has assigned me to duties in a\ngeographic area, within two hundred fifty (250) miles of any such geographic area in which I have worked in the two (2) years preceding my termination,\n12\n(ii) induce or encourage any employee of the Company to terminate his or her employment with the Company, or\n(iii) solicit, induce or encourage any person, business or entity which is a supplier of, a purchaser from, or a contracting party with, the Company to terminate any written or oral agreement, order or understanding with the Company or to\nconduct business in a way that results in an adverse impact to the Company.\nI further understand and agree that the remedy at law for any breach or threatened breach of my agreement not to compete contained in this section would be inadequate and that any breach or attempted breach would result in irreparable\ndamage to the Company, the monetary amount of which would be impossible to ascertain. Thus, I agree that in the event of any breach or threatened breach of my agreement not to compete, in addition to all other available legal or\nequitable remedies, the Company may obtain injunctive relief to remedy damage caused by such breach or threatened breach, and that the Company shall be entitled to recover from me its costs and expenses, including reasonable attorney\nfees, incurred in remedying such breach or threatened breach.\n5. General Terms\nI represent and agree that I have and will assume no obligations to others inconsistent with any of my obligations to the Company under this Agreement.\nIn consideration of my employment, I agree to conform to the policies of the Company. I understand that my employment is for an indefinite period and can be terminated at any time, with or without cause or prior notice by either the\nCompany or me, and will remain so unless a written agreement for a specific term is entered into and executed by me and the Company’s CEO or CFO. No other representations or agreements have been made regarding the term or\ntermination of my employment. I understand that no employee of the Company other than its CEO or CFO has the authority to enter into any agreement, commitment or guarantees binding on the Company regarding my employment and\nthen only by a signed, written document.\nThis Agreement, which is ancillary to any other agreement I may have with the Company, (a) is intended as the complete and exclusive statement of my agreement with the Company with respect to its subject matter, (b) shall be binding\nupon my heirs, executors and administrators, (c) shall be assignable by the Company to its successors; (d) shall not be modified unless in writing and signed by me and the Company, (e) shall be governed by and construed in accordance\nwith the law of the State of Connecticut, the Company ‘s home office state, and (f) if any part of this Agreement is found invalid by any court, the remainder shall be valid and enforceable in law and equity.\n/s/ David Freeman\n(Employee Signature)\n/s/ Rae Holmes\n(Witness to Signature)\nDavid Freeman\n(Employee printed name) 7/2/03\n(Date)\n13\nLydall, Inc.\nBy:\n/s/ Roger M. Widmann\nName:\nRoger M. Widmann\nTitle:\nChairman\n14	C onfidentiality and Non-Compete Agreement\nIn consideration of my employment by the Company, or future employment with an affiliate to whom I am transferred (together the "Company”), the compensation and other benefits to be received by me from the Company, I agree that:\n1. Definitions\nThe term "Confidential Information” as used in this Agreement includes all business information and records which relate to the Company or to parties working with the Company under a confidentiality agreement, and which are not\nknown to the public generally, including, but not limited to, technical notebook records, technical reports, patent applications, machine equipment, computer software, models, process and product designs including any drawings and\ndescriptions, unwritten knowledge and "know-how", operating instructions, training manuals, production and development processes, production or other schedules, customer lists, customer buying records, product sales records, sales\nrequests, territory listings, market surveys, plans including marketing plans and long-range plans, salary information, contracts, supplier lists, product costs, policy smtements, policy procedures, policy manuals, flowcharts, computer\nprintouts, program listings, reproductions and correspondence\nThe term "Invention" as used in this Agreement includes any discovery, improvement, design or idea, patentable, copywriteable or otherwise, which relates to any activity or business in which the Company is engaged or any process,\nequipment, material, product or method (including computer software) in which the Company has any direct or indirect interest.\n2. Inventions\nI will disclose promptly to the Company any Invention conceived, developed or perfected by me, either alone or jointly with another or others, while I am an employee, whether or not such conception, development or perfection occurs\nduring the hours of my employment.\nI grant to the Company without further compensation, all my right, title and interest in and to any such Invention for the sole use and benefit of the Company, together with all US. and foreign patents, trademarks or copyrights that may at\nany time be granted, and all reissues, renewals and extensions of such patents, trademarks or copyrights At the request and expense of the Company, I will at any time do what the Company reasonably believes to be necessary to assist the\nCompany to vest full right and title to each such Invention in the Company, enable the Company to obtain and maintain full right and title in any country, prosecute applications for and secure patents (including their reissue, renewal and\nextension), trademarks, copyrights and any other form of protection for each such Invention, and prosecute or defend any interference or opposition which may be declared involving any such application or patent and any litigation in\nwhich the Company may be involved concerning any such Invention. This will include preparing, executing and delivering any written document, drawings, flowcharts, or computer printouts. The provisions of this section will continue\nafterI stop working for the Company and shall be binding on my executors, administrators and assigns, unless waived in writing by the Company.\n11\n—\n3‘ Confidential Information\nI have not disclosed and will not disclose to the Company, and I will not use, in the discharge of my duties as an employee of the Company, any trade secret or confidential information belonging to a former employer or other person and\nwhich has been classified by the former employer or other person as a trade secret or confidential information The limitation set forth in this section shall not apply to matters which (a) are or become public knowledge, (b) were\npreviously known to the Company, (c) are subsequently received by the Company from a third party, or (d) are independently derived by the Company,\nI will not, directly or indirectly, during or at any time after the period of my employment by the Company, use for myself or others, or disclose to others, any Confidential Information, no matter how such information becomes known to\nme, unless I first obtain the Company’s written consent.\nWhen I leave the Company’s employ, or at any other time upon request by the Company, I will promptly deliver to the Company all documents and records, including but not limited to those listed under the definition of Confidential\nInformation, which are in my possession or under my control and which pertain to the Company, any of its activities or any of my activities while in the course of my employment and all copies thereof I will not retain or deliver to any\nothers copies of these documents or records\n4‘ Non-Competition\nI acknowledge and agree that the Company’s business competes upon a worldwide basis, and that the degree of competition in that business is high‘ I recognize that the Company may assign me to duties in a geographic area or specific\nmarket I agree that, unless I first obmin the Company’s written consent, I will not during my employment with the Company and for a period of two (2) years following the termination of my employment (provided, however, that if I am\nemployed by the Company for less than two (2) years, the post-employment period to which this section applies shall be the greater of six (6) months or the length of my employment in any capacity), directly or indirectly or through others,\nindividually, or as a member, officer, director, employee, agent, or investor of any partnership or entity (except ownership of not more than one percent (1%) of the outstanding publicly traded stock of any company):\n(i) participate in the ownership, management, operation or control of, or work for (as an employee, consultant or independent contractor) or have any material financial interest in, any business competitive with the Company in (a) any\nmarket in which the company for which I have worked in the two (2) preceding years has sold or attempted to sell any of its product in the two (2) years preceding my termination or (b) if the Company has assigned me to duties in a\ngeographic area, within two hundred fifty (250) miles of any such geographic area in which I have worked in the two (2) years preceding my termination,\n12\n(ii) induce or encourage any employee of the Company to terminate his or her employment with the Company, or\n(iii) solicit, induce or encourage any person, business or entity which is a supplier of, a purchaser from, or a contracting party with, the Company to terminate any written or oral agreement, order or understanding with the Company or to\nconduct business in a way that results in an adverse impact to the Company.\nI further understand and agree that the remedy at law for any breach or threatened breach of my agreement not to compete contained in this section would be inadequate and that any breach or attempted breach would result in irreparable\ndamage to the Company, the monetary amount of which would be impossible to ascertain Thus, I agree that in the event of any breach or threatened breach of my agreement not to compete, in addition to all other available legal or\nequitable remedies, the Company may obtain injunctive relief to remedy damage caused by such breach or threatened breach, and that the Company shall be entitled to recover from me its costs and expenses, including reasonable attorney\nfees, incurred in remedying such breach or threatened breach\n5‘ General Terms\n1 represent and agree that I have and will assume no obligations to others inconsistent with any of my obligations to the Company under this Agreement\nIn consideration of my employment, I agree to conform to the policies of the Company‘ I understand that my employment is for an indefinite period and can be terminated at any time, with or without cause or prior notice by either the\nCompany or me, and will remain so unless a written agreement for a specific term is entered into and executed by me and the Company's CEO or CFO, No other representations or agreements have been made regarding the term or\ntermination of my employment I undersmnd that no employee of the Company other than its CEO or CFO has the authority to enter into any agreement, commitment or guarantees binding on the Company regarding my employment and\nthen only by a signed, written document.\nThis Agreement, which is ancillary to any other agreementl may have with the Company, (a) is intended as the complete and exclusive statement of my agreement with the Company with respect to its subject matter, (b) shall be binding\nupon my heirs, executors and administrators, (c) shall be assignable by the Company to its successors; (d) shall not be modified unless in writing and signed by me and the Company, (e) shall be governed by and construed in accordance\nwith the law of the State of Connecticut, the Company '5 home office state, and (f) if any part of this Agreement is found invalid by any court, the remainder shall be valid and enforceable in law and equity‘\n/s/ David Freeman (Employee Signature) /s/ Rae Holmes (Witness to Signature)\nW (Employee printed name) 772703— (Date)\n13\n— Lydall, Inc. By:\nName:\nTitle:\n[5/ Roger M. Widmann\nvamam—\nChairman\n14	Confidentiality and Non-Compete Agreement\nIn consideration of my employment by the Company, or future employment with an affiliate to whom I am transferred (together the "Company"), the compensation and other benefits to be received by me from the Company, I agree that:\n1. Definitions\nThe term "Confidential Information" as used in this Agreement includes all business information and records which relate to the Company or to parties working with the Company under a confidentiality agreement, and which are not\nknown to the public generally, including, but not limited to, technical notebook records technical reports, patent applications, machine equipment, computer software, models, process and product designs including any drawings and\ndescriptions, unwritten knowledge and "know-how", operating instructions, training manuals, production and development processes, production or other schedules, customer lists, customer buying records product sales records, sales\nrequests, territory listings market surveys, plans including marketing plans and long-range plans, salary information, contracts, supplier lists, product costs, policy statements policy procedures, policy manuals, flowcharts computer\nprintouts, program listings, reproductions and correspondence.\nThe term "Invention" as used in this Agreement includes any discovery, improvement, design or idea, patentable, copywriteable or otherwise, which relates to any activity or business in which the Company is engaged or any process,\nequipment, material, product or method (including computer software) in which the Company has any direct or indirect interest.\n2. Inventions\nI will disclose promptly to the Company any Invention conceived, developed or perfected by me, either alone or jointly with another or others, while I am an employee whether or not such conception, development or perfection occurs\nduring the hours of my employment\nI grant to the Company without further compensation, all my right, title and interest in and to any such Invention for the sole use and benefit of the Company, together with all U.S. and foreign patents, trademarks or copyrights that may at\nany\ntime be granted, and all reissues, renewals and extensions of such patents, trademarks or copyrights At the request and expense of the Company, I will at any time do what the Company reasonably believes to be necessary to assist the\nCompany to vest full righ and title to each such Invention in the Company, enable the Company to obtain and maintain full right and title in any country, prosecute applications for and secure patents (including their reissue, renewal and\nextension), trademarks, copyrights and any other form of protection for each such Invention, and prosecute or defend any interference or opposition which be declared involving any such application or patent and any litigation in\nmay\nwhich the Company may be involved concerning any such Invention. This will include preparing, executing and delivering any written document, drawings, flowcharts, or computer printouts The provisions of this section will continue\nafter I stop working for the Company and shall be binding on my executors administrators and assigns, unless waived in writing by the Company\n11\n3. Confidential Information\nI have not disclosed and will not disclose to the Company, and I will not use, in the discharge of my duties as an employee of the Company, any trade secret or confidential information belonging to a former employer or other person and\nwhich has been classified by the former employer or other person as a trade secret or confidential information The limitation set forth in this section shall not apply to matters which (a) are or become public knowledge, (b) were\npreviously known to the Company, (c) are subsequently received by the Company from a third party, or (d) are independently derived by the Company.\nI\nwill not, directly or indirectly, during or at any time after the period of my employmen by the Company use for myself or others, or disclose to others, any Confidential Information, no matter how such information becomes known to\nme, unless I first obtain the Company's written consent.\nWhen I leave the Company's employ, or at any other time upon request by the Company, I will promptly deliver to the Company all documents and records, including but not limited to those listed under the definition of Confidential\nInformation, which are in my possession or under my contro and which pertain to the Company, any of its activities or any of my activities while in the course of my employment and all copies thereof. I will not retain or deliver to any\nothers copies of these documents or records.\n4. Non- -Competition\nI acknowledge and agree that the Company's business competes upon a worldwide basis, and that the degree of competition in that business is high. I recognize that the Company may assign me to duties in a geographic area or specific\nmarket. I agree that, unless I first obtain the Company's written consent, ] will not during my employmer with the Company and for a period of two (2) years following the termination of my employment (provided, however, that if am\nemployed by the Company for less than two (2) years, the post-employment period to which this section applies shall be the greater of six (6) months or the length of my employment in any capacity), directly or indirectly or through others,\nindividually or as a member, officer, director, employee, agent, or investor of any partnership or entity (except ownership of not more than one percent (1%) of the outstanding publicly traded stock of any company):\n(i) participate in the ownership management, operation or control of, or work for (as an employee, consultant or independent contractor) or have any material financial interest in, any business competitive with the Company in (a) any\nmarket in which the company for which I have worked in the two (2) preceding years has sold or attempted to sell any of its product in the two (2) years preceding my termination or (b) if the Company has assigned me to duties in a\ngeographic area, within two hundred fifty (250) miles of any such geographic area in which have worked in the two (2) years preceding my termination,\n12\n(ii) induce or encourage any employee of the Company to terminate his or her employment with the Company, or\n(iii) solicit induce or encourage any person, business or entity which is a supplier of, a purchaser from, or a contracting party with the Company to terminate any written or oral agreement, order or understanding with the Company or to\nconduct business in a way that results in an adverse impact to the Company\nIfurther understand and agree that the remedy at law for any breach or threatened breach of my agreement not to compete contained in this section would be inadequate and that any breach or attempted breach would result in irreparable\ndamage to the Company, the monetary amount of which would be impossible to ascertain. Thus I agree that in the event of any breach or threatened breach of my agreement not to compete, in addition to all other available legal or\nequitable remedies, the Company may obtain injunctive relief to remedy damage caused by such breach or threatened breach, and that the Company shall be entitled to recover from me its costs and expenses, including reasonable attorey\nfees, incurred in remedying such breach or threatened breach.\n5. General Terms\nI represent and agree that I have and will assume no obligations to others inconsistent with any of my obligations to the Company under this Agreement.\nIn consideration of my employment I agree to conform to the policies of the Company. I understand that my employment is for an indefinite period and can be terminated at any time, with or without cause or prior notice by either the\nCompany or me, and will remain so unless a written agreement for a specific term is entered into and executed by me and the Company's CEO or CFO. No other representations or agreements have been made regarding the term or\ntermination of my employment I understand that no employee of the Company other than its CEO or CFO has the authority to enter into any agreement, commitment or guarantees binding on the Company regarding my employ ymen\nand\nthen only by a signed written document.\nThis A greement, which is ancillary to any other agreement I may have with the Company, (a) is intended as the complete and exclusive statement of my agreement with the Company with respect to its subject matter, (b) shall be binding\nupon my heirs executors and administrators, (c) shall be assignable by the Company to its successors; (d) shall not be modified unless in writing and signed by me and the Company, (e) shall be governed by and construed in accordance\nwith the law of the State of Connecticut, the Company 's home office state, and (f) if any part of this Agreement is found invalid by any court, the remainder shall be valid and enforceable in law and equity.\n/s/ David Freeman\n(Employee Signature)\n/s/ Rae Holmes\nWitness to Signature)\nDavid Freeman\n(Employee printed name)\n772703\n(Date)\n13\nLydall, Inc.\nBy:\n/s/ Roger M. Widmann\nName:\nKoger M. W 1amann\nTitle:\nChairman\n14	Confidentiality and Non-Compete Agreement\nIn consideration of my employment by the Company, or future employment with an affiliate to whom I am transferred (together the “Company”), the compensation and other benefits to be received by me from the Company, I agree that:\n1. Definitions\nThe term “Confidential Information” as used in this Agreement includes all business information and records which relate to the Company or to parties working with the Company under a confidentiality agreement, and which are not\nknown to the public generally, including, but not limited to, technical notebook records, technical reports, patent applications, machine equipment, computer software, models, process and product designs including any drawings and\ndescriptions, unwritten knowledge and “know-how”, operating instructions, training manuals, production and development processes, production or other schedules, customer lists, customer buying records, product sales records, sales\nrequests, territory listings, market surveys, plans including marketing plans and long-range plans, salary information, contracts, supplier lists, product costs, policy statements, policy procedures, policy manuals, flowcharts, computer\nprintouts, program listings, reproductions and correspondence.\nThe term “Invention” as used in this Agreement includes any discovery, improvement, design or idea, patentable, copywriteable or otherwise, which relates to any activity or business in which the Company is engaged or any process,\nequipment, material, product or method (including computer software) in which the Company has any direct or indirect interest.\n2. Inventions\nI will disclose promptly to the Company any Invention conceived, developed or perfected by me, either alone or jointly with another or others, while I am an employee, whether or not such conception, development or perfection occurs\nduring the hours of my employment.\nI grant to the Company without further compensation, all my right, title and interest in and to any such Invention for the sole use and benefit of the Company, together with all U.S. and foreign patents, trademarks or copyrights that may at\nany time be granted, and all reissues, renewals and extensions of such patents, trademarks or copyrights. At the request and expense of the Company, I will at any time do what the Company reasonably believes to be necessary to assist the\nCompany to vest full right and title to each such Invention in the Company, enable the Company to obtain and maintain full right and title in any country, prosecute applications for and secure patents (including their reissue, renewal and\nextension), trademarks, copyrights and any other form of protection for each such Invention, and prosecute or defend any interference or opposition which may be declared involving any such application or patent and any litigation in\nwhich the Company may be involved concerning any such Invention. This will include preparing, executing and delivering any written document, drawings, flowcharts, or computer printouts. The provisions of this section will continue\nafter I stop working for the Company and shall be binding on my executors, administrators and assigns, unless waived in writing by the Company.\n11\n3. Confidential Information\nI have not disclosed and will not disclose to the Company, and I will not use, in the discharge of my duties as an employee of the Company, any trade secret or confidential information belonging to a former employer or other person and\nwhich has been classified by the former employer or other person as a trade secret or confidential information. The limitation set forth in this section shall not apply to matters which (a) are or become public knowledge, (b) were\npreviously known to the Company, (c) are subsequently received by the Company from a third party, or (d) are independently derived by the Company.\nI will not, directly or indirectly, during or at any time after the period of my employment by the Company, use for myself or others, or disclose to others, any Confidential Information, no matter how such information becomes known to\nme, unless I first obtain the Company’s written consent.\nWhen I leave the Company’s employ, or at any other time upon request by the Company, I will promptly deliver to the Company all documents and records, including but not limited to those listed under the definition of Confidential\nInformation, which are in my possession or under my control and which pertain to the Company, any of its activities or any of my activities while in the course of my employment and all copies thereof. I will not retain or deliver to any\nothers copies of these documents or records.\n4. Non-Competition\nI acknowledge and agree that the Company’s business competes upon a worldwide basis, and that the degree of competition in that business is high. I recognize that the Company may assign me to duties in a geographic area or specific\nmarket. I agree that, unless I first obtain the Company’s written consent, I will not during my employment with the Company and for a period of two (2) years following the termination of my employment (provided, however, that if I am\nemployed by the Company for less than two (2) years, the post-employment period to which this section applies shall be the greater of six (6) months or the length of my employment in any capacity), directly or indirectly or through others,\nindividually, or as a member, officer, director, employee, agent, or investor of any partnership or entity (except ownership of not more than one percent (1%) of the outstanding publicly traded stock of any company):\n(i) participate in the ownership, management, operation or control of, or work for (as an employee, consultant or independent contractor) or have any material financial interest in, any business competitive with the Company in (a) any\nmarket in which the company for which I have worked in the two (2) preceding years has sold or attempted to sell any of its product in the two (2) years preceding my termination or (b) if the Company has assigned me to duties in a\ngeographic area, within two hundred fifty (250) miles of any such geographic area in which I have worked in the two (2) years preceding my termination,\n12\n(ii) induce or encourage any employee of the Company to terminate his or her employment with the Company, or\n(iii) solicit, induce or encourage any person, business or entity which is a supplier of, a purchaser from, or a contracting party with, the Company to terminate any written or oral agreement, order or understanding with the Company or to\nconduct business in a way that results in an adverse impact to the Company.\nI further understand and agree that the remedy at law for any breach or threatened breach of my agreement not to compete contained in this section would be inadequate and that any breach or attempted breach would result in irreparable\ndamage to the Company, the monetary amount of which would be impossible to ascertain. Thus, I agree that in the event of any breach or threatened breach of my agreement not to compete, in addition to all other available legal or\nequitable remedies, the Company may obtain injunctive relief to remedy damage caused by such breach or threatened breach, and that the Company shall be entitled to recover from me its costs and expenses, including reasonable attorney\nfees, incurred in remedying such breach or threatened breach.\n5. General Terms\nI represent and agree that I have and will assume no obligations to others inconsistent with any of my obligations to the Company under this Agreement.\nIn consideration of my employment, I agree to conform to the policies of the Company. I understand that my employment is for an indefinite period and can be terminated at any time, with or without cause or prior notice by either the\nCompany or me, and will remain so unless a written agreement for a specific term is entered into and executed by me and the Company’s CEO or CFO. No other representations or agreements have been made regarding the term or\ntermination of my employment. I understand that no employee of the Company other than its CEO or CFO has the authority to enter into any agreement, commitment or guarantees binding on the Company regarding my employment and\nthen only by a signed, written document.\nThis Agreement, which is ancillary to any other agreement I may have with the Company, (a) is intended as the complete and exclusive statement of my agreement with the Company with respect to its subject matter, (b) shall be binding\nupon my heirs, executors and administrators, (c) shall be assignable by the Company to its successors; (d) shall not be modified unless in writing and signed by me and the Company, (e) shall be governed by and construed in accordance\nwith the law of the State of Connecticut, the Company ‘s home office state, and (f) if any part of this Agreement is found invalid by any court, the remainder shall be valid and enforceable in law and equity.\n/s/ David Freeman\n(Employee Signature)\n/s/ Rae Holmes\n(Witness to Signature)\nDavid Freeman\n(Employee printed name) 7/2/03\n(Date)\n13\nLydall, Inc.\nBy:\n/s/ Roger M. Widmann\nName:\nRoger M. Widmann\nTitle:\nChairman\n14
99991fda39f5d1bc0076f36d9f86d6d5.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 10 nc10001202x4_ex-d2.htm EXHIBIT (D)(2)\nExhibit (d)(2)\nExecution Version\nNON-DISCLOSURE AGREEMENT\nThis Non-disclosure Agreement (the “Agreement”) is made and entered into effective as of February 14, 2019, by and between\nThe KeyW Holding Corporation (collectively with its subsidiaries and controlled affiliates, the “Company”), and Jacobs\nEngineering Group Inc. (including, where the context requires, its subsidiaries and affiliates, “Recipient”). In consideration of the\nmutual covenants and conditions contained herein, to induce the Company to provide certain information to Recipient and for other\ngood and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties to this Agreement do\nhereby agree as follows:\n1.\nDefinition of Confidential Information. For all purposes of this Agreement, the term “Confidential Information” shall\ncollectively refer to all information or material disclosed or provided by the Company to Recipient, either orally or in writing, or\nobtained by Recipient from a third party or any other source, regardless of the manner in which it is furnished, concerning any\naspect of the business or affairs of the Company or its “affiliates” (as such term is defined in Rule 12b-2 under the Securities\nExchange Act of 1934, as amended (the “Exchange Act”)). Confidential Information also includes any notes, analyses,\ncompilations, data, forecasts, reports, summaries, studies or other material or documents prepared by Recipient which contain,\nreflect or are based, in whole or in part, on the Confidential Information.\nNotwithstanding the foregoing, Confidential Information shall not include information or material that (i) is publicly available\nor becomes publicly available through no action or fault of Recipient, (ii) was already in Recipient’s possession or known to\nRecipient prior to being disclosed or provided to Recipient by or on behalf of the Company, provided, that, the source of such\ninformation or material was not bound by a contractual, legal or fiduciary obligation of confidentiality to the Company or any other\nparty with respect thereto, (iii) was or is obtained by Recipient from a third party, provided, that, such third party was not bound by\na contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to such information or\nmaterial, or (iv) is independently developed by the Recipient without use of or reference to the Confidential Information.\n2. Restrictions on Disclosure and Use. Recipient does hereby covenant and agree with the Company as follows:\n2.1 Non-disclosure. Recipient shall keep strictly confidential and shall not disclose, or cause or permit to be disclosed, to\nany person or entity, (i) any information about a potential transaction between Recipient and the Company (the “Transaction”) or the\nfact that Recipient has received, or may receive, Confidential Information and is considering the Transaction and all discussions\nbetween the Company and Recipient related thereto, including the existence of this Agreement, except that (subject to Section 2.2\nbelow) Recipient may make such disclosure if it has received the reasonable written advice of its outside counsel that such\ndisclosure must be made in order that Recipient not commit a violation of law, and (ii) the Confidential Information, except to those\nofficers, employees or other authorized Representatives (as defined herein) and who shall agree to be bound by the terms of this\nAgreement, and except as otherwise consented to in writing by the Company. Recipient shall take all actions reasonably necessary\nto ensure that the Confidential Information remains strictly confidential and is not disclosed to or seen, used or obtained by any\nperson or entity except in accordance with the terms of this Agreement. Recipient agrees not to contact any shareholders, directors,\nofficers, employees, agents, customers, or suppliers of the Company or its affiliates with respect to the Transaction or for the\npurpose of obtaining information for use in evaluating the Transaction, without the Company’s prior written consent. Recipient\nfurther agrees that all inquiries, requests for information and other communications concerning the Transaction shall be made only\nthrough Guggenheim Securities, LLC (“Guggenheim”). Company agrees that, without Recipient’s prior written consent, it and its\nRepresentatives will not disclose to any other person the fact that Recipient is considering the Transaction, that this Agreement\nexists, that the Confidential Information has been made available to Recipient, that discussions or negotiations are taking place\nconcerning the Transaction or any of the terms, conditions or other facts with respect thereto including the status thereof, the\nvaluation, or indicative offers, or proposals.\n2.2\nRequest for Production of Confidential Information. In the event that Recipient is requested or required (by oral\nquestions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other\nsimilar process or by any law, rule or regulation of any governmental agency or regulatory authority) to disclose any of the\nConfidential Information, Recipient shall provide the Company with prompt written notice of any such request or requirement prior\nto such disclosure so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with the\nprovisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Company,\nRecipient is nonetheless,\nlegally compelled to disclose Confidential Information, Recipient may, without liability hereunder, disclose to such tribunal only\nthat portion of the Confidential Information which outside counsel advises, in writing, Recipient is legally required to be disclosed,\nprovided that Recipient shall use its best efforts to preserve the confidentiality of the Confidential Information, including, without\nlimitation, by cooperating with the Company to obtain an appropriate protective order or other reliable assurance that confidential\ntreatment will be afforded the Confidential Information by such tribunal.\n2.3\nOwnership. The Confidential Information is owned solely and exclusively by the Company and shall remain the\nexclusive property of the Company. No right, title or interest in or to any of the Confidential Information or any material developed\ntherefrom is transferred to Recipient hereby or by its delivery to Recipient hereunder.\n2.4 Use. Recipient agrees not to use any Confidential Information of the Company for any purpose except to evaluate and\nengage in discussions regarding the Transaction. Recipient agrees not to disclose any Confidential Information of the Company to\nanyone, except to those directors, officers, employees, or Representatives of the Recipient who are required to have the information\nin order to evaluate or engage in discussions concerning the Transaction. Recipient shall not reverse engineer, disassemble or\ndecompile any prototypes, software or other tangible objects which embody the Company’s Confidential Information and which are\nprovided to the Recipient hereunder.\nNotwithstanding the above, the Recipient may disclose Confidential Information to (1) directors, officers, and employees of its\nparent company or, (2) directors, officers, and employees of a wholly-owned subsidiary of its parent company or, (3) directors,\nofficers employees of the Recipient’s wholly owned subsidiaries, or, (4) agents or advisors of Recipient, including, without\nlimitation, attorneys, accountants, consultants, bankers and financial advisors (collectively, “Representatives”) who are party to an\nassociated non-disclosure agreement with Recipient, provided that such Representatives have a need to know for the purposes of\nthis Agreement and are under an obligation to hold such information in confidence. Prior to providing the Confidential Information\nto any Representative, the Recipient shall notify each Representative to whom such disclosure is made that such Confidential\nInformation is received in confidence and direct such Representative to maintain such confidentiality and not to use the Confidential\nInformation for any purpose other than its evaluation of the Transaction. Recipient agrees that it will be responsible for any breach\nby its Representatives of the confidentiality and non-use provisions of this Agreement, except to the extent that any such\nRepresentative shall have entered into its own definitive confidentiality agreement with the Company.\n3. No Solicitation. For a period of eighteen (18) months from the date of this Agreement, Recipient will not directly or indirectly\n(and will not cause or permit any person controlled by Recipient to), solicit for employment, offer to hire, employ, hire, otherwise\ncontract for the services of, or otherwise interfere with the employment relationship of any individual who is an employee of the\nCompany or its affiliates and who is named in the Confidential Information Memorandum furnished by Company (or other similar\ndocument) or whom Recipient learns of by name through due diligence efforts provided, however, that this prohibition shall not\napply to any person (i) who responds to a general employment advertisement, social media, or whose resume is posted on social\nmedia sites, or use of employment agencies, not specifically directed at the Company’s employees, (ii) who has been terminated by\nthe Company prior to commencement of employment discussions with Recipient or its Representatives, (iii) with whom Recipient is\ncurrently engaged in employment discussion (as evidenced by written documentation in the event of a dispute), or (iv) who was\nsolicited for employment, offered to hire, employed, hired, or otherwise contracted for the services of the Company with the\nCompany’s prior written consent.\n4. Return of Confidential Information. Recipient shall, upon accomplishing the limited purpose of evaluating the Transaction, or\nat any time upon the request of the Company, immediately destroy or return to the Company all Confidential Information (including\nnotes, writings and other material developed therefrom by Recipient) and all copies thereof and retain none for its files.\nNotwithstanding the foregoing, neither the Recipient nor its Representatives will be required to erase electronically stored\nConfidential Information that has been saved to a back-up file or other electronic medium in accordance with its or its\nRepresentatives’ ordinary back-up practices. Notwithstanding such return or destruction, Recipient shall continue to be bound by\nthis Agreement.\n5. Anti-Clubbing.\n5.1\nThe Recipient hereby represents and warrants that the Recipient is not acting as a broker for any other Person in\nconnection with the Transaction, and is considering the Transaction only for its own account and for the account of its affiliates.\nExcept with the prior written consent of the Company, the Recipient agrees that (i) it will\nnot act as a joint bidder or co-bidder with any other person with respect to the Transaction, and (ii) the Recipient will not enter into\nany discussions, negotiations, agreements, arrangements or understandings (whether written or oral) with any other person regarding\nthe Transaction, other than the Company and its representatives, and the Recipient’s Representatives (to the extent permitted\nhereunder).\n5.2\nNotwithstanding anything to the contrary contained herein, without the prior written consent of the Company, the\nRecipient agrees that it will not disclose any Confidential Information to any actual or potential sources of financing (debt, equity or\notherwise).\n6. Standstill. Unless approved in advance in writing by the board of directors of the Company, the Recipient agrees that it will\nnot, for a period of one (1) year after the date of this Agreement, directly or indirectly:\n6.1\nmake any statement or proposal to the board of directors of any of the Company, any of the Company’s Representatives\nor any of the Company’s stockholders regarding, or make any public announcement, proposal or offer (including any “solicitation”\nof “proxies” as such terms are defined or used in Regulation 14A of the Exchange Act) with respect to, or otherwise solicit, seek or\noffer to effect (including, for the avoidance of doubt, indirectly by means of communication with the press or media) (i) any\nbusiness combination, merger, tender offer, exchange offer or similar transaction involving the Company or any of its subsidiaries,\n(ii) any restructuring, recapitalization, liquidation or similar transaction involving the Company or any of its subsidiaries, (iii) any\nacquisition of any of the Company’s loans, debt securities, equity securities or assets, or rights or options to acquire interests in any\nof the Company’s loans, debt securities, equity securities or assets, (iv) any proposal to seek representation on the board of directors\nof the Company or otherwise seek to control or influence the management, board of directors or policies of any of the Company, (v)\nany request or proposal to waive, terminate or amend the provisions of this Agreement or (vi) any proposal, arrangement or other\nstatement that is inconsistent with the terms of this Agreement, including this Section 6;\n6.2 instigate, encourage or assist any third party (including forming a “group” within the meaning of Section 13(d)(3) of the\nExchange Act with any such third party) to do, or enter into any discussions or agreements with any third party with respect to, any\nof the actions set forth in clause 6.1 above;\n6.3\nacquire (or offer, propose or agree to acquire), or solicit an offer to acquire, of record or beneficially, directly or\nindirectly, acting alone or in concert, by purchase or otherwise, any loans, debt securities, equity securities or assets of the Company\nor any of its subsidiaries, or rights or options to acquire interests in any of the Company’s loans, debt securities, equity securities or\nassets, except that Recipient may beneficially own up to 4.9% of the Company’s outstanding loans, debt securities and equity\nsecurities and may own an amount in excess of such percentage solely to the extent resulting exclusively from actions taken by the\nCompany;\n6.4\nacquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange\nor otherwise, (i) any of the assets, tangible or intangible, of the Company or any of its affiliates or (ii) direct or indirect rights,\nwarrants or options to acquire any assets of the Company or any of its affiliates, except for such assets as are then being offered for\nsale by the Company or any of its affiliates;\n6.5\narrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities of the\nCompany or any securities convertible into or exchangeable or exercisable for any voting securities or assets of the Company,\nexcept for such assets as are then being offered for sale by the Company or any of its affiliates; or\n6.6\ntake any action which would reasonably be expected to require the Company or any of its affiliates to make a public\nannouncement regarding any of the actions set forth in clauses 6.1 -6 .3 above.\n6.7\nThe foregoing restrictions shall not apply to any of the Recipient’s Representatives effecting or recommending\ntransactions in securities (a) in the ordinary course of its business as an investment advisor, broker, dealer in securities, market\nmaker, specialist or block positioner and (b) not at the direction or request of the Recipient.\n6.8 Notwithstanding the foregoing provisions of this Section 6, the restrictions set forth in this Section 6 shall terminate and\nbe of no further force and effect if the Company enters into a definitive agreement with respect to, or publicly announces that it\nplans to enter into, a transaction involving all or a controlling portion of the Company’s equity securities or all or substantially all of\nthe Company’s assets (whether by merger, consolidation, business combination, tender or exchange offer, recapitalization,\nrestructuring, sale, equity issuance or otherwise).\n7.\nNo Representations or Warranties. The Confidential Information is being provided to Recipient “as is” and without any\nrepresentation or warranty of any kind, either express or implied, regarding the accuracy or completeness or other quality of the\nConfidential Information. In no event shall the Company or its affiliates or any of their respective directors, officers, employees,\nagents or Representatives (including, without limitation, Guggenheim) have any liability to Recipient relating to or arising out of\nany use of the Confidential Information.\n8. Indemnification. Recipient shall indemnify and hold harmless the Company and its affiliates and their respective directors,\nofficers, employees, agents and Representatives from and against any and all losses, damages, costs and expenses (including,\nwithout limitation, reasonable attorneys’ fees and expenses) caused by or arising out of any breach of this Agreement by Recipient\nor any breach for which Recipient is responsible hereunder. In any and all actions, suits, proceedings, claims, demands or judgments\narising out of or related to this agreement the prevailing party shall be entitled to recovery of attorney’s fees and other costs and\nexpenses.\n9. Equitable Remedies. Recipient hereby agrees that its failure to perform any obligation or duty which it has agreed to perform\nunder this Agreement will cause irreparable harm to the Company, which harm cannot be adequately compensated for by money\ndamages. It is further agreed by Recipient that an order of specific performance or for injunctive relief against Recipient in the event\nof a breach or default under the terms of this Agreement would be equitable and would not work a hardship on Recipient.\nAccordingly, in the event of a breach or default by Recipient hereunder, the Company, without any bond or other security being\nrequired and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to\ncompel specific performance by, or to obtain injunctive relief against, Recipient, with respect to any obligation or duty herein or\nbreach thereof.\n10. No Licenses Granted. The Company grants no licenses, by implication or otherwise, under any patent, copyright, trademark,\nintellectual property rights, trade secret or other rights by disclosing Confidential Information under this Agreement.\n11. Definitive Agreement. The Company and the Recipient understand and agree that no contract or agreement providing for any\ntransaction involving the Company or Recipient shall be deemed to exist between Recipient and the Company unless and until a\nfinal definitive agreement has been executed and delivered, and the Company and the Recipient hereby waive in advance, any\nclaims (including, without limitation, breach of contract) in connection with any such transaction unless and until Recipient and the\nCompany shall have entered into a final definitive agreement. The Company and the Recipient also agree that unless and until a\nfinal definitive agreement between Recipient and the Company has been executed and delivered, neither Recipient nor the Company\nwill be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement except for\nthe matters specifically agreed to herein. The Company reserves the right, in its sole discretion, to reject any and all proposals made\nby Recipient and to terminate discussions and negotiations with Recipient at any time. Recipient further understands that (i) the\nCompany shall be free to conduct any process for any transaction involving the Company, if and as the Company in its sole\ndiscretion shall determine (including, without limitation, negotiating with any other interested party and entering into a definitive\nagreement without prior notice to Recipient or any other person), (ii) any procedures relating to such process or transaction may be\nchanged at any time in the Company’s sole discretion without notice to Recipient or any other person, and (iii) Recipient shall not\nhave any claims whatsoever against the Company or any of its agents or representatives (including, without limitation,\nGuggenheim) arising out of or relating to any transaction involving the Company (other than any claims against the parties to a\ndefinitive agreement with Recipient in accordance with the terms thereof) nor, unless a definitive agreement is entered into with\nRecipient, against any third party with whom a transaction is entered into.\n12. Trading in Securities. Recipient acknowledges that it is aware, and agrees to advise its directors, officers, employees, agents\nand Representatives who are informed as to the matters which are the subject of this Agreement, that the United States securities\nlaws prohibit any person who has material, non-public information concerning the Transaction from purchasing or selling securities\nof a company that may be a party to such Transaction or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\n13. Export. Recipient and its employees shall abide by all export laws, rules and regulations of the United States Government, or\nany agency thereof, including, but not limited to, the Export Control Regulations of the US Department of Commerce, the\nInternational Traffic in Arms Regulations of the US Department of State, and the National Industrial Security Program Operating\nManual (DOD 5220.22 -M), in connection with the disclosure, use, export and/or re-export of all information disclosed under this\nAgreement.\n14. Miscellaneous. This Agreement shall be binding upon, and inure to the benefit of, and be enforceable by, the parties hereto\nand their respective successors and assigns, but this Agreement shall not be assignable by Recipient without the prior written\nconsent of the Company. This Agreement constitutes the complete agreement between the parties hereto with respect to the subject\nmatter hereof and shall continue in full force and effect until terminated by mutual agreement of the parties hereto. The section\nheadings used herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this\nAgreement. This Agreement shall be construed, performed and enforced in accordance with, and governed by, the internal laws of\nthe State of Maryland, without giving effect to the principles of conflicts of law thereof, and each party consents to personal\njurisdiction in such state and voluntarily submits to the jurisdiction of the state and federal courts in Baltimore, Maryland, in any\naction or proceeding relating to this Agreement. Whenever possible, each provision of this Agreement shall be interpreted in such a\nmanner as to be effective and valid under applicable law, but if any provision hereof is held to be invalid, illegal or unenforceable\nunder any applicable law or rule in any jurisdiction, such provision will be ineffective only to the extent of such invalidity, illegality,\nor unenforceability, without invalidating the remainder of this Agreement. This Agreement may not be modified or amended and no\nprovision hereof may be waived, in whole or in part, except by a written agreement signed by the parties hereto. No waiver of any\nbreach or default hereunder shall be considered valid unless in writing, and no such waiver shall be deemed a waiver of any\nsubsequent breach or default of the same or similar nature. This Agreement may be executed in any number of counterparts, each of\nwhich shall be deemed an original, but all of which taken together shall constitute one and the same instrument.\n15. Term. This Agreement shall remain in full force and effect for two (2) years from the date hereof.\nIN WITNESS WHEREOF, the parties hereto have duly executed this Agreement effective as of the date first set forth above.\nThe KeyW Holding Corporation\nJacobs Engineering Group Inc.\nBy:\n/s/ Philip Luci, Jr.\nBy:\n/s/ Jeff Goldfarb\nTitle:\nEVP & General Counsel\nTitle:\nSVP, Corporate Development	EX-99.(D)(2) 10 nc10001202x4._ex-d2.htm EXHIBIT (D)(2)\nExhibit (d)(2)\nExecution Version\nNON-DISCLOSURE AGREEMENT\nThis Non-disclosure Agreement (the “Agreement”) is made and entered into effective as of February 14, 2019, by and between\nThe KeyW Holding Corporation (collectively with its subsidiaries and controlled affiliates, the “Company”), and Jacobs\nEngineering Group Inc. (including, where the context requires, its subsidiaries and affiliates, “Recipient”). In consideration of the\nmutual covenants and conditions contained herein, to induce the Company to provide certain information to Recipient and for other\ngood and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties to this Agreement do\nhereby agree as follows:\n1. Definition of Confidential Information. For all purposes of this Agreement, the term “Confidential Information” shall\ncollectively refer to all information or material disclosed or provided by the Company to Recipient, either orally or in writing, or\nobtained by Recipient from a third party or any other source, regardless of the manner in which it is furnished, concerning any\naspect of the business or affairs of the Company or its “affiliates” (as such term is defined in Rule 12b-2 under the Securities\nExchange Act of 1934, as amended (the “Exchange Act”)). Confidential Information also includes any notes, analyses,\ncompilations, data, forecasts, reports, summaries, studies or other material or documents prepared by Recipient which contain,\nreflect or are based, in whole or in part, on the Confidential Information.\n \nNotwithstanding the foregoing, Confidential Information shall not include information or material that (i) is publicly available\nor becomes publicly available through no action or fault of Recipient, (ii) was already in Recipient’s possession or known to\nRecipient prior to being disclosed or provided to Recipient by or on behalf of the Company, provided, that, the source of such\ninformation or material was not bound by a contractual, legal or fiduciary obligation of confidentiality to the Company or any other\nparty with respect thereto, (iii) was or is obtained by Recipient from a third party, provided, that, such third party was not bound by\na contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to such information or\nmaterial, or (iv) is independently developed by the Recipient without use of or reference to the Confidential Information.\n2. Restrictions on Disclosure and Use. Recipient does hereby covenant and agree with the Company as follows:\n2.1 Non-disclosure. Recipient shall keep strictly confidential and shall not disclose, or cause or permit to be disclosed, to\nany person or entity, (i) any information about a potential transaction between Recipient and the Company (the “Transaction”) or the\nfact that Recipient has received, or may receive, Confidential Information and is considering the Transaction and all discussions\nbetween the Company and Recipient related thereto, including the existence of this Agreement, except that (subject to Section 2.2\nbelow) Recipient may make such disclosure if it has received the reasonable written advice of its outside counsel that such\ndisclosure must be made in order that Recipient not commit a violation of law, and (ii) the Confidential Information, except to those\nofficers, employees or other authorized Representatives (as defined herein) and who shall agree to be bound by the terms of this\nAgreement, and except as otherwise consented to in writing by the Company. Recipient shall take all actions reasonably necessary\nto ensure that the Confidential Information remains strictly confidential and is not disclosed to or seen, used or obtained by any\nperson or entity except in accordance with the terms of this Agreement. Recipient agrees not to contact any shareholders, directors,\nofficers, employees, agents, customers, or suppliers of the Company or its affiliates with respect to the Transaction or for the\npurpose of obtaining information for use in evaluating the Transaction, without the Company’s prior written consent. Recipient\nfurther agrees that all inquiries, requests for information and other communications concerning the Transaction shall be made only\nthrough Guggenheim Securities, LLC (“Guggenheim”). Company agrees that, without Recipient’s prior written consent, it and its\nRepresentatives will not disclose to any other person the fact that Recipient is considering the Transaction, that this Agreement\nexists, that the Confidential Information has been made available to Recipient, that discussions or negotiations are taking place\nconcerning the Transaction or any of the terms, conditions or other facts with respect thereto including the status thereof, the\nvaluation, or indicative offers, or proposals.\n2.2 Request for Production of Confidential Information. In the event that Recipient is requested or required (by oral\nquestions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other\nsimilar process or by any law, rule or regulation of any governmental agency or regulatory authority) to disclose any of the\nConfidential Information, Recipient shall provide the Company with prompt written notice of any such request or requirement prior\nto such disclosure so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with the\nprovisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Company,\nRecipient is nonetheless,\nlegally compelled to disclose Confidential Information, Recipient may, without liability hereunder, disclose to such tribunal only\nthat portion of the Confidential Information which outside counsel advises, in writing, Recipient is legally required to be disclosed,\nprovided that Recipient shall use its best efforts to preserve the confidentiality of the Confidential Information, including, without\nlimitation, by cooperating with the Company to obtain an appropriate protective order or other reliable assurance that confidential\ntreatment will be afforded the Confidential Information by such tribunal.\n2.3 Ownership. The Confidential Information is owned solely and exclusively by the Company and shall remain the\nexclusive property of the Company. No right, title or interest in or to any of the Confidential Information or any material developed\ntherefrom is transferred to Recipient hereby or by its delivery to Recipient hereunder.\n2.4 Use. Recipient agrees not to use any Confidential Information of the Company for any purpose except to evaluate and\nengage in discussions regarding the Transaction. Recipient agrees not to disclose any Confidential Information of the Company to\nanyone, except to those directors, officers, employees, or Representatives of the Recipient who are required to have the information\nin order to evaluate or engage in discussions concerning the Transaction. Recipient shall not reverse engineer, disassemble or\ndecompile any prototypes, software or other tangible objects which embody the Company’s Confidential Information and which are\nprovided to the Recipient hereunder.\nNotwithstanding the above, the Recipient may disclose Confidential Information to (1) directors, officers, and employees of its\nparent company or, (2) directors, officers, and employees of a wholly-owned subsidiary of its parent company or, (3) directors,\nofficers employees of the Recipient’s wholly owned subsidiaries, or, (4) agents or advisors of Recipient, including, without\nlimitation, attorneys, accountants, consultants, bankers and financial advisors (collectively, “Representatives”) who are party to an\nassociated non-disclosure agreement with Recipient, provided that such Representatives have a need to know for the purposes of\nthis Agreement and are under an obligation to hold such information in confidence. Prior to providing the Confidential Information\nto any Representative, the Recipient shall notify each Representative to whom such disclosure is made that such Confidential\nInformation is received in confidence and direct such Representative to maintain such confidentiality and not to use the Confidential\nInformation for any purpose other than its evaluation of the Transaction. Recipient agrees that it will be responsible for any breach\nby its Representatives of the confidentiality and non-use provisions of this Agreement, except to the extent that any such\nRepresentative shall have entered into its own definitive confidentiality agreement with the Company.\n3.  No Solicitation. For a period of eighteen (18) months from the date of this Agreement, Recipient will not directly or indirectly\n(and will not cause or permit any person controlled by Recipient to), solicit for employment, offer to hire, employ, hire, otherwise\ncontract for the services of, or otherwise interfere with the employment relationship of any individual who is an employee of the\nCompany or its affiliates and who is named in the Confidential Information Memorandum furnished by Company (or other similar\ndocument) or whom Recipient learns of by name through due diligence efforts provided, however, that this prohibition shall not\napply to any person (i) who responds to a general employment advertisement, social media, or whose resume is posted on social\nmedia sites, or use of employment agencies, not specifically directed at the Company’s employees, (ii) who has been terminated by\nthe Company prior to commencement of employment discussions with Recipient or its Representatives, (iii) with whom Recipient is\ncurrently engaged in employment discussion (as evidenced by written documentation in the event of a dispute), or (iv) who was\nsolicited for employment, offered to hire, employed, hired, or otherwise contracted for the services of the Company with the\nCompany’s prior written consent.\n4.  Return of Confidential Information. Recipient shall, upon accomplishing the limited purpose of evaluating the Transaction, or\nat any time upon the request of the Company, immediately destroy or return to the Company all Confidential Information (including\nnotes, writings and other material developed therefrom by Recipient) and all copies thereof and retain none for its files.\nNotwithstanding the foregoing, neither the Recipient nor its Representatives will be required to erase electronically stored\nConfidential Information that has been saved to a back-up file or other electronic medium in accordance with its or its\nRepresentatives’ ordinary back-up practices. Notwithstanding such return or destruction, Recipient shall continue to be bound by\nthis Agreement.\n5. Anti-Clubbing.\n5.1 The Recipient hereby represents and warrants that the Recipient is not acting as a broker for any other Person in\nconnection with the Transaction, and is considering the Transaction only for its own account and for the account of its affiliates.\nExcept with the prior written consent of the Company, the Recipient agrees that (i) it will\nnot act as a joint bidder or co-bidder with any other person with respect to the Transaction, and (ii) the Recipient will not enter into\nany discussions, negotiations, agreements, arrangements or understandings (whether written or oral) with any other person regarding\nthe Transaction, other than the Company and its representatives, and the Recipient’s Representatives (to the extent permitted\nhereunder).\n5.2 Notwithstanding anything to the contrary contained herein, without the prior written consent of the Company, the\nRecipient agrees that it will not disclose any Confidential Information to any actual or potential sources of financing (debt, equity or\notherwise).\n6. Standstill. Unless approved in advance in writing by the board of directors of the Company, the Recipient agrees that it will\nnot, for a period of one (1) year after the date of this Agreement, directly or indirectly:\n6.1  make any statement or proposal to the board of directors of any of the Company, any of the Company’s Representatives\nor any of the Company’s stockholders regarding, or make any public announcement, proposal or offer (including any “solicitation”\nof “proxies” as such terms are defined or used in Regulation 14A of the Exchange Act) with respect to, or otherwise solicit, seek or\noffer to effect (including, for the avoidance of doubt, indirectly by means of communication with the press or media) (i) any\nbusiness combination, merger, tender offer, exchange offer or similar transaction involving the Company or any of its subsidiaries,\n(ii) any restructuring, recapitalization, liquidation or similar transaction involving the Company or any of its subsidiaries, (iii) any\nacquisition of any of the Company’s loans, debt securities, equity securities or assets, or rights or options to acquire interests in any\nof the Company’s loans, debt securities, equity securities or assets, (iv) any proposal to seek representation on the board of directors\nof the Company or otherwise seek to control or influence the management, board of directors or policies of any of the Company, (v)\nany request or proposal to waive, terminate or amend the provisions of this Agreement or (vi) any proposal, arrangement or other\nstatement that is inconsistent with the terms of this Agreement, including this Section 6;\n6.2  instigate, encourage or assist any third party (including forming a “group” within the meaning of Section 13(d)(3) of the\nExchange Act with any such third party) to do, or enter into any discussions or agreements with any third party with respect to, any\nof the actions set forth in clause 6.1 above;\n6.3 acquire (or offer, propose or agree to acquire), or solicit an offer to acquire, of record or beneficially, directly or\nindirectly, acting alone or in concert, by purchase or otherwise, any loans, debt securities, equity securities or assets of the Company\nor any of its subsidiaries, or rights or options to acquire interests in any of the Company’s loans, debt securities, equity securities or\nassets, except that Recipient may beneficially own up to 4.9% of the Company’s outstanding loans, debt securities and equity\nsecurities and may own an amount in excess of such percentage solely to the extent resulting exclusively from actions taken by the\nCompany;\n6.4  acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange\nor otherwise, (i) any of the assets, tangible or intangible, of the Company or any of its affiliates or (ii) direct or indirect rights,\nwarrants or options to acquire any assets of the Company or any of its affiliates, except for such assets as are then being offered for\nsale by the Company or any of its affiliates;\n6.5 arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities of the\nCompany or any securities convertible into or exchangeable or exercisable for any voting securities or assets of the Company,\nexcept for such assets as are then being offered for sale by the Company or any of its affiliates; or\n6.6 take any action which would reasonably be expected to require the Company or any of its affiliates to make a public\nannouncement regarding any of the actions set forth in clauses 6.1-6.3 above.\n6.7 The foregoing restrictions shall not apply to any of the Recipient’s Representatives effecting or recommending\ntransactions in securities (a) in the ordinary course of its business as an investment advisor, broker, dealer in securities, market\nmaker, specialist or block positioner and (b) not at the direction or request of the Recipient.\n6.8  Notwithstanding the foregoing provisions of this Section 6, the restrictions set forth in this Section 6 shall terminate and\nbe of no further force and effect if the Company enters into a definitive agreement with respect to, or publicly announces that it\nplans to enter into, a transaction involving all or a controlling portion of the Company’s equity securities or all or substantially all of\nthe Company’s assets (whether by merger, consolidation, business combination, tender or exchange offer, recapitalization,\nrestructuring, sale, equity issuance or otherwise).\n7. No Representations or Warranties. The Confidential Information is being provided to Recipient “as is” and without any\nrepresentation or warranty of any kind, either express or implied, regarding the accuracy or completeness or other quality of the\nConfidential Information. In no event shall the Company or its affiliates or any of their respective directors, officers, employees,\nagents or Representatives (including, without limitation, Guggenheim) have any liability to Recipient relating to or arising out of\nany use of the Confidential Information.\n8. Indemnification. Recipient shall indemnify and hold harmless the Company and its affiliates and their respective directors,\nofficers, employees, agents and Representatives from and against any and all losses, damages, costs and expenses (including,\nwithout limitation, reasonable attorneys’ fees and expenses) caused by or arising out of any breach of this Agreement by Recipient\nor any breach for which Recipient is responsible hereunder. In any and all actions, suits, proceedings, claims, demands or judgments\narising out of or related to this agreement the prevailing party shall be entitled to recovery of attorney’s fees and other costs and\nexpenses.\n9.  Equitable Remedies. Recipient hereby agrees that its failure to perform any obligation or duty which it has agreed to perform\nunder this Agreement will cause irreparable harm to the Company, which harm cannot be adequately compensated for by money\ndamages. It is further agreed by Recipient that an order of specific performance or for injunctive relief against Recipient in the event\nof a breach or default under the terms of this Agreement would be equitable and would not work a hardship on Recipient.\nAccordingly, in the event of a breach or default by Recipient hereunder, the Company, without any bond or other security being\nrequired and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to\ncompel specific performance by, or to obtain injunctive relief against, Recipient, with respect to any obligation or duty herein or\nbreach thereof.\n10.  No Licenses Granted. The Company grants no licenses, by implication or otherwise, under any patent, copyright, trademark,\nintellectual property rights, trade secret or other rights by disclosing Confidential Information under this Agreement.\n11.  Definitive Agreement. The Company and the Recipient understand and agree that no contract or agreement providing for any\ntransaction involving the Company or Recipient shall be deemed to exist between Recipient and the Company unless and until a\nfinal definitive agreement has been executed and delivered, and the Company and the Recipient hereby waive in advance, any\nclaims (including, without limitation, breach of contract) in connection with any such transaction unless and until Recipient and the\nCompany shall have entered into a final definitive agreement. The Company and the Recipient also agree that unless and until a\nfinal definitive agreement between Recipient and the Company has been executed and delivered, neither Recipient nor the Company\nwill be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement except for\nthe matters specifically agreed to herein. The Company reserves the right, in its sole discretion, to reject any and all proposals made\nby Recipient and to terminate discussions and negotiations with Recipient at any time. Recipient further understands that (i) the\nCompany shall be free to conduct any process for any transaction involving the Company, if and as the Company in its sole\ndiscretion shall determine (including, without limitation, negotiating with any other interested party and entering into a definitive\nagreement without prior notice to Recipient or any other person), (ii) any procedures relating to such process or transaction may be\nchanged at any time in the Company’s sole discretion without notice to Recipient or any other person, and (iii) Recipient shall not\nhave any claims whatsoever against the Company or any of its agents or representatives (including, without limitation,\nGuggenheim) arising out of or relating to any transaction involving the Company (other than any claims against the parties to a\ndefinitive agreement with Recipient in accordance with the terms thereof) nor, unless a definitive agreement is entered into with\nRecipient, against any third party with whom a transaction is entered into.\n12.  Trading in Securities. Recipient acknowledges that it is aware, and agrees to advise its directors, officers, employees, agents\nand Representatives who are informed as to the matters which are the subject of this Agreement, that the United States securities\nlaws prohibit any person who has material, non-public information concerning the Transaction from purchasing or selling securities\nof a company that may be a party to such Transaction or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\n13.  Export. Recipient and its employees shall abide by all export laws, rules and regulations of the United States Government, or\nany agency thereof, including, but not limited to, the Export Control Regulations of the US Department of Commerce, the\nInternational Traffic in Arms Regulations of the US Department of State, and the National Industrial Security Program Operating\nManual (DOD 5220.22-M), in connection with the disclosure, use, export and/or re-export of all information disclosed under this\nAgreement.\n14. Miscellaneous. This Agreement shall be binding upon, and inure to the benefit of, and be enforceable by, the parties hereto\nand their respective successors and assigns, but this Agreement shall not be assignable by Recipient without the prior written\nconsent of the Company. This Agreement constitutes the complete agreement between the parties hereto with respect to the subject\nmatter hereof and shall continue in full force and effect until terminated by mutual agreement of the parties hereto. The section\nheadings used herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this\nAgreement. This Agreement shall be construed, performed and enforced in accordance with, and governed by, the internal laws of\nthe State of Maryland, without giving effect to the principles of conflicts of law thereof, and each party consents to personal\njurisdiction in such state and voluntarily submits to the jurisdiction of the state and federal courts in Baltimore, Maryland, in any\naction or proceeding relating to this Agreement. Whenever possible, each provision of this Agreement shall be interpreted in such a\nmanner as to be effective and valid under applicable law, but if any provision hereof is held to be invalid, illegal or unenforceable\nunder any applicable law or rule in any jurisdiction, such provision will be ineffective only to the extent of such invalidity, illegality,\nor unenforceability, without invalidating the remainder of this Agreement. This Agreement may not be modified or amended and no\nprovision hereof may be waived, in whole or in part, except by a written agreement signed by the parties hereto. No waiver of any\nbreach or default hereunder shall be considered valid unless in writing, and no such waiver shall be deemed a waiver of any\nsubsequent breach or default of the same or similar nature. This Agreement may be executed in any number of counterparts, each of\nwhich shall be deemed an original, but all of which taken together shall constitute one and the same instrument.\n15.  Term. This Agreement shall remain in full force and effect for two (2) years from the date hereof.\nIN WITNESS WHEREOF, the parties hereto have duly executed this Agreement effective as of the date first set forth above.\nThe KeyW Holding Corporation Jacobs Engineering Group Inc.\nBy: /s/ Philip Luci, Jr. By: /s/ Jeff Goldfarb\nTitle: EVP & General Counsel Title: SVP, Corporate Development	EX-99.(D)(2) 10 c10001202x4_ex-d2.htn EXHIBIT (D)(2)\nExhibit (d)(2)\nExecution Version\nNON-DISCLOSURE AGREEMENT\nThis Non-disclosure Agreement (the "Agreement") is made and entered into effective as of February 14, 2019, by and between\nThe\nKeyW Holding Corporation (collectively with its subsidiaries and controlled affiliates, the "Company."), and Jacobs\nEngineering Group Inc. (including, where the context requires, its subsidiaries and affiliates, "Recipient"). In consideration of the\nmutual covenants and conditions contained herein, to induce the Company to provide certain information to Recipient and for other\ngood and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties to this Agreement do\nhereby agree as follows:\n1.\nDefinition of Confidential Information. For all purposes of this Agreement, the term "Confidential Information" shall\ncollectively refer to all information or material disclosed or provided by the Company to Recipient, either orally or in writing, or\nobtained by Recipient from a third party or any other source, regardless of the manner in which it is furnished, concerning any\naspect of the business or affairs of the Company or its "affiliates" (as such term is defined in Rule 12b-2 under the Securities\nExchange Act of 1934, as amended (the "ExchangeAct' Confidential Information also includes any notes, analyses,\ncompilations, data, forecasts, reports, summaries, studies or other material or documents prepared by Recipient which contain,\nreflect or are based, in whole or in part, on the Confidentia Information.\nNotwithstanding the foregoing, Confidentia Information shall not include information or material that (i) is publicly available\nor becomes publicly available through no action or fault of Recipient, (ii) was already in Recipient's possession or known to\nRecipient prior to being disclosed or provided to Recipient by or on behalf of the Company, provided, that, the source of such\ninformation or material was not bound by a contractual, legal or fiduciary obligation of confidentiality to the Company or any other\nparty with respect thereto, (iii) was or is obtained by Recipient from a third party, provided, that, such third party was not bound by\na contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to such information or\nmaterial, or (iv) is independently developed by the Recipient without use of or reference to the Confidential Information.\n2.\nRestrictions on Disclosure and Use. Recipient does hereby covenant and agree with the Company as follows:\n2.1\nNon-disclosure. Recipient shall keep strictly confidential and shall not disclose, or cause or permit to be disclosed,\nto\nany person or entity, (i) any information about a potential transaction between Recipient and the Company (the "Transaction") or the\nfact that Recipient has received, or may receive, Confidential Information and is considering the Transaction and all discussions\nbetween the Company and Recipient related thereto, including the existence of this Agreement, except that (subject to Section 2.2\nbelow) Recipient may make such disclosure if it has received the reasonable written advice of its outside counsel that such\ndisclosure must be made in order that Recipient not commit a violation of law, and (ii) the Confidential Information, except to those\nofficers, employees or other authorized Representatives (as defined herein) and who shall agree to be bound by the terms of this\nAgreement, and except as otherwise consented to in writing by the Company. Recipient shall take all actions reasonably necessary\nto ensure that the Confidential Information remains strictly confidential and is not disclosed to or seen, used or obtained by any\nperson or entity except in accordance with the terms of this Agreement. Recipient agrees not to contact any shareholders, directors,\nofficers, employees, agents, customers, or suppliers of the Company or its affiliates with respect to the Transaction or for\nthe\npurpose of obtaining information for use in evaluating the Transaction, without the Company's prior written consent. Recipient\nfurther agrees that all inquiries, requests for information and other communications concerning the Transaction shall be made only\nthrough\nGuggenheim\nSecurities,\nLLC\n("Guggenheim").\nCompany\nagrees\nthat,\nwithout\nRecipient's\nprior\nwritten\nconsent,\nit\nand\nits\nRepresentatives will not disclose to any other person the fact that Recipient is considering the Transaction, that this Agreement\nexists, that the Confidential Information has been made available to Recipient, that discussions or negotiations are taking place\nconcerning the Transaction or any of the terms, conditions or other facts with respect thereto including the status thereof, the\nvaluation, or indicative offers, or proposals.\n2.2\nRequest for Production of Confidential Information. In the event that Recipient is requested or required (by oral\nquestions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other\nsimilar process or by any law, rule or regulation of any governmental agency or regulatory authority) to disclose any of the\nConfidentia Information, Recipient shall provide the Company with prompt written notice of any such request or requirement prior\nto such disclosure so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with the\nprovisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Company,\nRecipient is nonetheless,\nlegally compelled to disclose Confidential Information, Recipient may, without liability hereunder, disclose to such tribunal only\nthat\nportion of the Confidential Information which outside counsel advises, in writing, Recipient is legally required to be disclosed,\nprovided that Recipient shall use its best efforts to preserve the confidentiality of the Confidential Information, including, without\nlimitation, by cooperating with the Company to obtain an appropriate protective order or other reliable assurance that confidential\ntreatment will be afforded the Confidential Information by such tribunal.\n2.3\nOwnership. The Confidential Information is owned solely and exclusively by the Company and shall remain the\nexclusive property of the Company. No right, title or interest in or to any of the Confidential Information or any material developed\ntherefrom is transferred to Recipient hereby or by its delivery to Recipient hereunder.\n2.4\nUse. Recipient agrees not to use any Confidentia Information of the Company for any purpose except to evaluate and\nengage in discussions regarding the Transaction. Recipient agrees not to disclose any Confidential Information of the Company to\nanyone, except to those directors, officers, employees, or Representatives of the Recipient who are required to have the information\nin order to evaluate or engage in discussions concerning the Transaction. Recipient shall not reverse engineer, disassemble or\ndecompile any prototypes, software or other tangible objects which embody the Company's Confidential Information and which are\nprovided to the Recipient hereunder.\nNotwithstanding the above, the Recipient may disclose Confidential Information to (1) directors, officers, and employees of its\nparent company or, (2) directors, officers, and employees of a wholly-owned subsidiary of its parent company or, (3) directors,\nofficers employees of the Recipient's wholly owned subsidiaries, or, (4) agents or advisors of Recipient, including, without\nlimitation, attorneys, accountants, consultants, bankers and financial advisors (collectively, "Representatives") who are party to an\nassociated non-disclosure agreement with Recipient, provided that such Representatives have a need to know for the purposes of\nthis Agreement and are under an obligation to hold such information in confidence. Prior to providing the Confidential Information\nto any Representative, the Recipient shall notify each Representative to whom such disclosure is made that such Confidential\nInformation\nis\nreceived in confidence and direct such Representative to maintain such confidentiality and not to use the Confidential\nInformation for any purpose other than its evaluation of the Transaction. Recipient agrees that it will be responsible for any breach\nby its Representatives of the confidentiality and non-use provisions of this Agreement, except to the extent that any such\nRepresentative shall have entered into its own definitive confidentiality agreement with the Company.\n3.\nNo Solicitation. For a period of eighteen (18) months from the date of this Agreement, Recipient will not directly or indirectly\n(and will not cause or permit any person controlled by Recipient to), solicit for employment, offer to hire, employ, hire, otherwise\ncontract for the services of, or otherwise interfere with the employment relationship of any individual who is an employee of the\nCompany or its affiliates and who is named in the Confidential Information Memorandum furnished by Company (or other similar\ndocument) or whom Recipient learns of by name through due diligence efforts provided, however, that this prohibition shall not\napply to any person (i) who responds to a general employment advertisement, social media, or whose resume is posted on social\nmedia sites, or use of employment agencies, not specifically directed at the Company's employees, (ii) who has been terminated by\nthe Company prior to commencement of employment discussions with Recipient or its Representatives, (iii) with whom Recipient is\ncurrently engaged in employment discussion (as evidenced by written documentation in the event of a dispute), or (iv) who was\nsolicited for employment, offered to hire, employed, hired, or otherwise contracted for the services of the Company with the\nCompany's prior written consent.\n4.\nReturn of Confidential Information. Recipient shall, upon accomplishing the limited purpose of evaluating the Transaction, or\nat any time upon the request of the Company, immediately destroy or return to the Company all Confidential Information (including\nnotes, writings and other material developed therefrom by Recipient) and all copies thereof and retain none for its files.\nNotwithstanding the foregoing, neither the Recipient nor its Representatives will be required to erase electronically stored\nConfidential Information that has been saved to a back-up file or other electronic medium in accordance with its or its\nRepresentatives' ordinary back-up practices. Notwithstanding such return or destruction, Recipient shall continue to be bound by\nthis Agreement.\n5. Anti-Clubbing.\n5.1\nThe Recipient hereby represents and warrants that the Recipient is not acting as a broker for any other Person in\nconnection with the Transaction, and is considering the Transaction only for its own account and for the account of its affiliates.\nExcept with the prior written consent of the Company, the Recipient agrees that (i) it will\nnot act as a joint bidder or co-bidder with any other person with respect to the Transaction, and (ii) the Recipient will not enter into\nany discussions, negotiations, agreements, arrangements or understandings (whether written or oral) with any other person regarding\nthe Transaction, other than the Company and its representatives, and the Recipient's Representatives (to the extent permitted\nhereunder).\n5.2\nNotwithstanding anything to the contrary contained herein, without the prior written consent of the Company, the\nRecipient agrees that it will not disclose any Confidential Information to any actual or potential sources of financing (debt, equity or\notherwise).\n6.\nStandstill. Unless approved in advance in writing by the board of directors of the Company, the Recipient agrees that it will\nnot, for a period of one (1) year after the date of this Agreement, directly or indirectly:\n6.1\nmake any statement or proposal to the board of directors of any of the Company, any of the Company's Representatives\nor any of the Company's stockholders regarding, or make any public announcement, proposal or offer (including any "'solicitation"\nof "proxies" as such terms are defined or used in Regulation 14A of the Exchange Act) with respect to, or otherwise solicit, seek or\noffer to effect (including, for the avoidance of doubt, indirectly by means of communication with the press or media) (i) any\nbusiness combination, merger, tender offer, exchange offer or similar transaction involving the Company or any of its subsidiaries,\n(ii) any restructuring, recapitalization, liquidation or similar transaction involving the Company or any of its subsidiaries, (iii) any\nacquisition of any of the Company's loans, debt securities, equity securities or assets, or rights or options to acquire interests in any\nof the Company's loans, debt securities, equity securities or assets, (iv) any proposal to seek representation on the board of directors\nof the Company or otherwise seek to control or influence the management, board of directors or policies of any of the Company, (v)\nany request or proposal to waive, terminate or amend the provisions of this Agreement or (vi) any proposal, arrangement or other\nstatement that is inconsistent with the terms of this Agreement, including this Section 6;\n6.2 instigate, encourage or assist any third party (including forming a "group" within the meaning of Section 13(d)(3) of\nthe\nExchange Act with any such third party) to do, or enter into any discussions or agreements with any third party with respect to, any\nof the actions set forth in clause 6.1 above;\n6.3\nacquire (or offer, propose or agree to acquire), or solicit an offer to acquire, of record or beneficially, directly or\nindirectly, acting alone or in concert, by purchase or otherwise, any loans, debt securities, equity securities or assets of the Company\nor any of its subsidiaries, or rights or options to acquire interests in any of the Company's loans, debt securities, equity securities or\nassets,\nexcept\nthat\nRecipient\nmay\nbeneficially\nown\nup\nto\n4.9%\nof\nthe\nCompany's\noutstanding\nloans,\ndebt\nsecurities\nand\nequity\nsecurities and may own an amount in excess of such percentage solely to the extent resulting exclusively from actions taken by the\nCompany;\n6.4\nacquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange\nor otherwise, (i) any of the assets, tangible or intangible, of the Company or any of its affiliates or (ii) direct or indirect rights,\nwarrants or options to acquire any assets of the Company or any of its affiliates, except for such assets as are then being offered for\nsale by the Company or any of its affiliates;\n6.5\narrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities of the\nCompany or any securities convertible into or exchangeable or exercisable for any voting securities or assets of the Company,\nexcept for such assets as are then being offered for sale by the Company or any of its affiliates; or\n6.6 take any action which would reasonably be expected to require the Company or any of its affiliates to make a public\nannouncement regarding any of the actions set forth in clauses 6.1-6.3 above.\n6.7\nThe foregoing restrictions shall not apply to any of the Recipient's Representatives effecting or recommending\ntransactions in securities (a) in the ordinary course of its business as an investment advisor, broker, dealer in securities, market\nmaker, specialist or block positioner and (b) not at the direction or request of the Recipient.\n6.8\nNotwithstanding the foregoing provisions of this Section 6, the restrictions set forth in this Section 6 shall terminate\nand\nbe of no further force and effect if the Company enters into a definitive agreement with respect to, or publicly announces that it\nplans to enter into, a transaction involving all or a controlling portion of the Company's equity securities or all or substantially all of\nthe Company's assets (whether by merger, consolidation, business combination, tender or exchange offer, recapitalization,\nrestructuring, sale, equity issuance or otherwise).\n7.\nNo Representations or Warranties. The Confidential Information is being provided to Recipient "as is" and without any\nrepresentation or warranty of any kind, either express or implied, regarding the accuracy or completeness or other quality of the\nConfidentia\nInformation.\nIn\nno\nevent\nshall\nthe\nCompany\nor\nits\naffiliates\nor\nany\nof\ntheir\nrespective\ndirectors,\nofficers,\nemployees,\nagents or Representatives (including, without limitation, Guggenheim) have any liability to Recipient relating to or arising out of\nany use of the Confidential Information.\n8. Indemnification. Recipient shall indemnify and hold harmless the Company and its affiliates and their respective directors,\nofficers, employees, agents and Representatives from and against any and all losses, damages, costs and expenses (including,\nwithout\nlimitation,\nreasonable\nattorneys'\nfees\nand\nexpenses)\ncaused\nby\nor\narising\nout\nof\nany\nbreach\nof\nthis\nAgreement\nby\nRecipient\nor any breach for which Recipient is responsible hereunder. In any and all actions, suits, proceedings, claims, demands or judgments\narising out of or related to this agreement the prevailing party shall be entitled to recovery of attorney's fees and other costs and\nexpenses.\n9. Equitable Remedies. Recipient hereby agrees that its failure to perform any obligation or duty which it has agreed to perform\nunder this Agreement will cause irreparable harm to the Company, which harm cannot be adequately compensated for by money\ndamages. It is further agreed by Recipient that an order of specific performance or for injunctive relief against Recipient in the event\nof a breach or default under the terms of this Agreement would be equitable and would not work a hardship on Recipient.\nAccordingly, in the event of a breach or default by Recipient hereunder, the Company, without any bond or other security being\nrequired and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to\ncompe specific performance by, or to obtain injunctive relief against, Recipient, with respect to any obligation or duty herein or\nbreach thereof.\n10.\nNo Licenses Granted. The Company grants no licenses, by implication or otherwise, under any patent, copyright, trademark,\nintellectual property rights, trade secret or other rights by disclosing Confidential Information under this Agreement.\n11. Definitive Agreement. The Company and the Recipient understand and agree that no contract or agreement providing for any\ntransaction involving the Company or Recipient shall be deemed to exist between Recipient and the Company unless and until a\nfinal definitive agreement has been executed and delivered, and the Company and the Recipient hereby waive in advance, any\nclaims (including, without limitation, breach of contract) in connection with any such transaction unless and until Recipient and the\nCompany shall have entered into a final definitive agreement. The Company and the Recipient also agree that unless and until\na\nfinal definitive agreement between Recipient and the Company has been executed and delivered, neither Recipient nor the Company\nwill be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement except for\nthe matters specifically agreed to herein. The Company reserves the right, in its sole discretion, to reject any and all proposals made\nby\nRecipient\nand\nto\nterminate\ndiscussions\nand\nnegotiations\nwith\nRecipient\nat\nany\ntime.\nRecipient\nfurther\nunderstands\nthat\n(i)\nthe\nCompany shall be free to conduct any process for any transaction involving the Company, if and as the Company in its sole\ndiscretion shall determine (including, without limitation, negotiating with any other interested party and entering into a definitive\nagreement without prior notice to Recipient or any other person), (ii) any procedures relating to such process or transaction may be\nchanged at any time in the Company's sole discretion without notice to Recipient or any other person, and (iii) Recipient shall not\nhave any claims whatsoever against the Company or any of its agents or representatives (including, without limitation,\nGuggenheim) arising out of or relating to any transaction involving the Company (other than any claims against the parties to a\ndefinitive agreement with Recipient in accordance with the terms thereof) nor, unless a definitive agreement is entered into with\nRecipient, against any third party with whom a transaction is entered into.\n12.\nTrading in Securities. Recipient acknowledges that it is aware, and agrees to advise its directors, officers, employees, agents\nand Representatives who are informed as to the matters which are the subject of this Agreement, that the United States securities\nlaws prohibit any person who has material, non-public information concerning the Transaction from purchasing or selling securities\nof a company that may be a party to such Transaction or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\n13.\nExport. Recipient and its employees shal abide by all export laws, rules and regulations of the United States Government, or\nany agency thereof, including, but not limited to, the Export Control Regulations of the US Department of Commerce, the\nInternational Traffic in Arms Regulations of the US Department of State, and the National Industrial Security Program Operating\nManual (DOD 5220.22-M), in connection with the disclosure, use, export and/or re-export of all information disclosed under this\nAgreement.\n14.\nMiscellaneous. This Agreement shall be binding upon, and inure to the benefit of, and be enforceable by, the parties hereto\nand their respective successors and assigns, but this Agreement shall not be assignable by Recipient without the prior written\nconsent of the Company. This Agreement constitutes the complete agreement between the parties hereto with respect to the subject\nmatter hereof and shall continue in full force and effect until terminated by mutual agreement of the parties hereto. The section\nheadings used herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this\nAgreement. This Agreement shall be construed, performed and enforced in accordance with, and governed by, the internal laws\nof\nthe State of Maryland, without giving effect to the principles of conflicts of law thereof, and each party consents to personal\njurisdiction in such state and voluntarily submits to the jurisdiction of the state and federal courts in Baltimore, Maryland, in any\naction or proceeding relating to this Agreement. Whenever possible, each provision of this Agreement shall be interpreted in such a\nmanner as to be effective and valid under applicable law, but if any provision hereof is held to be invalid, illegal or unenforceable\nunder any applicable law or rule in any jurisdiction, such provision will be ineffective only to the extent of such invalidity, illegality,\nor\nunenforceability, without invalidating the remainder of this Agreement. This Agreement may not be modified or amended and no\nprovision hereof may be waived, in whole or in part, except by a written agreement signed by the parties hereto. No waiver of any\nbreach or default hereunder shall be considered valid unless in writing, and no such waiver shall be deemed a waiver of any\nsubsequent breach or default of the same or similar nature. This Agreement may be executed in any number of counterparts, each of\nwhich shall be deemed an original, but all of which taken together shall constitute one and the same instrument.\n15. Term. This Agreement shall remain in full force and effect for two (2) years from the date hereof.\nIN WITNESS WHEREOF, the parties hereto have duly executed this Agreement effective as of the date first set forth above.\nThe KeyW Holding Corporation\nJacobs Engineering Group Inc.\nBy:\n/s/ Philip Luci, Jr.\nBy:\n/s/ Jeff Goldfarb\nTitle:\nEVP & General Counsel\nTitle:\nSVP, Corporate Development	EX-99.(D)(2) 10 nc10001202x4_ex-d2.htm EXHIBIT (D)(2)\nExhibit (d)(2)\nExecution Version\nNON-DISCLOSURE AGREEMENT\nThis Non-disclosure Agreement (the “Agreement”) is made and entered into effective as of February 14, 2019, by and between\nThe KeyW Holding Corporation (collectively with its subsidiaries and controlled affiliates, the “Company”), and Jacobs\nEngineering Group Inc. (including, where the context requires, its subsidiaries and affiliates, “Recipient”). In consideration of the\nmutual covenants and conditions contained herein, to induce the Company to provide certain information to Recipient and for other\ngood and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties to this Agreement do\nhereby agree as follows:\n1.\nDefinition of Confidential Information. For all purposes of this Agreement, the term “Confidential Information” shall\ncollectively refer to all information or material disclosed or provided by the Company to Recipient, either orally or in writing, or\nobtained by Recipient from a third party or any other source, regardless of the manner in which it is furnished, concerning any\naspect of the business or affairs of the Company or its “affiliates” (as such term is defined in Rule 12b-2 under the Securities\nExchange Act of 1934, as amended (the “Exchange Act”)). Confidential Information also includes any notes, analyses,\ncompilations, data, forecasts, reports, summaries, studies or other material or documents prepared by Recipient which contain,\nreflect or are based, in whole or in part, on the Confidential Information.\nNotwithstanding the foregoing, Confidential Information shall not include information or material that (i) is publicly available\nor becomes publicly available through no action or fault of Recipient, (ii) was already in Recipient’s possession or known to\nRecipient prior to being disclosed or provided to Recipient by or on behalf of the Company, provided, that, the source of such\ninformation or material was not bound by a contractual, legal or fiduciary obligation of confidentiality to the Company or any other\nparty with respect thereto, (iii) was or is obtained by Recipient from a third party, provided, that, such third party was not bound by\na contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to such information or\nmaterial, or (iv) is independently developed by the Recipient without use of or reference to the Confidential Information.\n2. Restrictions on Disclosure and Use. Recipient does hereby covenant and agree with the Company as follows:\n2.1 Non-disclosure. Recipient shall keep strictly confidential and shall not disclose, or cause or permit to be disclosed, to\nany person or entity, (i) any information about a potential transaction between Recipient and the Company (the “Transaction”) or the\nfact that Recipient has received, or may receive, Confidential Information and is considering the Transaction and all discussions\nbetween the Company and Recipient related thereto, including the existence of this Agreement, except that (subject to Section 2.2\nbelow) Recipient may make such disclosure if it has received the reasonable written advice of its outside counsel that such\ndisclosure must be made in order that Recipient not commit a violation of law, and (ii) the Confidential Information, except to those\nofficers, employees or other authorized Representatives (as defined herein) and who shall agree to be bound by the terms of this\nAgreement, and except as otherwise consented to in writing by the Company. Recipient shall take all actions reasonably necessary\nto ensure that the Confidential Information remains strictly confidential and is not disclosed to or seen, used or obtained by any\nperson or entity except in accordance with the terms of this Agreement. Recipient agrees not to contact any shareholders, directors,\nofficers, employees, agents, customers, or suppliers of the Company or its affiliates with respect to the Transaction or for the\npurpose of obtaining information for use in evaluating the Transaction, without the Company’s prior written consent. Recipient\nfurther agrees that all inquiries, requests for information and other communications concerning the Transaction shall be made only\nthrough Guggenheim Securities, LLC (“Guggenheim”). Company agrees that, without Recipient’s prior written consent, it and its\nRepresentatives will not disclose to any other person the fact that Recipient is considering the Transaction, that this Agreement\nexists, that the Confidential Information has been made available to Recipient, that discussions or negotiations are taking place\nconcerning the Transaction or any of the terms, conditions or other facts with respect thereto including the status thereof, the\nvaluation, or indicative offers, or proposals.\n2.2\nRequest for Production of Confidential Information. In the event that Recipient is requested or required (by oral\nquestions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other\nsimilar process or by any law, rule or regulation of any governmental agency or regulatory authority) to disclose any of the\nConfidential Information, Recipient shall provide the Company with prompt written notice of any such request or requirement prior\nto such disclosure so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with the\nprovisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Company,\nRecipient is nonetheless,\nlegally compelled to disclose Confidential Information, Recipient may, without liability hereunder, disclose to such tribunal only\nthat portion of the Confidential Information which outside counsel advises, in writing, Recipient is legally required to be disclosed,\nprovided that Recipient shall use its best efforts to preserve the confidentiality of the Confidential Information, including, without\nlimitation, by cooperating with the Company to obtain an appropriate protective order or other reliable assurance that confidential\ntreatment will be afforded the Confidential Information by such tribunal.\n2.3\nOwnership. The Confidential Information is owned solely and exclusively by the Company and shall remain the\nexclusive property of the Company. No right, title or interest in or to any of the Confidential Information or any material developed\ntherefrom is transferred to Recipient hereby or by its delivery to Recipient hereunder.\n2.4 Use. Recipient agrees not to use any Confidential Information of the Company for any purpose except to evaluate and\nengage in discussions regarding the Transaction. Recipient agrees not to disclose any Confidential Information of the Company to\nanyone, except to those directors, officers, employees, or Representatives of the Recipient who are required to have the information\nin order to evaluate or engage in discussions concerning the Transaction. Recipient shall not reverse engineer, disassemble or\ndecompile any prototypes, software or other tangible objects which embody the Company’s Confidential Information and which are\nprovided to the Recipient hereunder.\nNotwithstanding the above, the Recipient may disclose Confidential Information to (1) directors, officers, and employees of its\nparent company or, (2) directors, officers, and employees of a wholly-owned subsidiary of its parent company or, (3) directors,\nofficers employees of the Recipient’s wholly owned subsidiaries, or, (4) agents or advisors of Recipient, including, without\nlimitation, attorneys, accountants, consultants, bankers and financial advisors (collectively, “Representatives”) who are party to an\nassociated non-disclosure agreement with Recipient, provided that such Representatives have a need to know for the purposes of\nthis Agreement and are under an obligation to hold such information in confidence. Prior to providing the Confidential Information\nto any Representative, the Recipient shall notify each Representative to whom such disclosure is made that such Confidential\nInformation is received in confidence and direct such Representative to maintain such confidentiality and not to use the Confidential\nInformation for any purpose other than its evaluation of the Transaction. Recipient agrees that it will be responsible for any breach\nby its Representatives of the confidentiality and non-use provisions of this Agreement, except to the extent that any such\nRepresentative shall have entered into its own definitive confidentiality agreement with the Company.\n3. No Solicitation. For a period of eighteen (18) months from the date of this Agreement, Recipient will not directly or indirectly\n(and will not cause or permit any person controlled by Recipient to), solicit for employment, offer to hire, employ, hire, otherwise\ncontract for the services of, or otherwise interfere with the employment relationship of any individual who is an employee of the\nCompany or its affiliates and who is named in the Confidential Information Memorandum furnished by Company (or other similar\ndocument) or whom Recipient learns of by name through due diligence efforts provided, however, that this prohibition shall not\napply to any person (i) who responds to a general employment advertisement, social media, or whose resume is posted on social\nmedia sites, or use of employment agencies, not specifically directed at the Company’s employees, (ii) who has been terminated by\nthe Company prior to commencement of employment discussions with Recipient or its Representatives, (iii) with whom Recipient is\ncurrently engaged in employment discussion (as evidenced by written documentation in the event of a dispute), or (iv) who was\nsolicited for employment, offered to hire, employed, hired, or otherwise contracted for the services of the Company with the\nCompany’s prior written consent.\n4. Return of Confidential Information. Recipient shall, upon accomplishing the limited purpose of evaluating the Transaction, or\nat any time upon the request of the Company, immediately destroy or return to the Company all Confidential Information (including\nnotes, writings and other material developed therefrom by Recipient) and all copies thereof and retain none for its files.\nNotwithstanding the foregoing, neither the Recipient nor its Representatives will be required to erase electronically stored\nConfidential Information that has been saved to a back-up file or other electronic medium in accordance with its or its\nRepresentatives’ ordinary back-up practices. Notwithstanding such return or destruction, Recipient shall continue to be bound by\nthis Agreement.\n5. Anti-Clubbing.\n5.1\nThe Recipient hereby represents and warrants that the Recipient is not acting as a broker for any other Person in\nconnection with the Transaction, and is considering the Transaction only for its own account and for the account of its affiliates.\nExcept with the prior written consent of the Company, the Recipient agrees that (i) it will\nnot act as a joint bidder or co-bidder with any other person with respect to the Transaction, and (ii) the Recipient will not enter into\nany discussions, negotiations, agreements, arrangements or understandings (whether written or oral) with any other person regarding\nthe Transaction, other than the Company and its representatives, and the Recipient’s Representatives (to the extent permitted\nhereunder).\n5.2\nNotwithstanding anything to the contrary contained herein, without the prior written consent of the Company, the\nRecipient agrees that it will not disclose any Confidential Information to any actual or potential sources of financing (debt, equity or\notherwise).\n6. Standstill. Unless approved in advance in writing by the board of directors of the Company, the Recipient agrees that it will\nnot, for a period of one (1) year after the date of this Agreement, directly or indirectly:\n6.1\nmake any statement or proposal to the board of directors of any of the Company, any of the Company’s Representatives\nor any of the Company’s stockholders regarding, or make any public announcement, proposal or offer (including any “solicitation”\nof “proxies” as such terms are defined or used in Regulation 14A of the Exchange Act) with respect to, or otherwise solicit, seek or\noffer to effect (including, for the avoidance of doubt, indirectly by means of communication with the press or media) (i) any\nbusiness combination, merger, tender offer, exchange offer or similar transaction involving the Company or any of its subsidiaries,\n(ii) any restructuring, recapitalization, liquidation or similar transaction involving the Company or any of its subsidiaries, (iii) any\nacquisition of any of the Company’s loans, debt securities, equity securities or assets, or rights or options to acquire interests in any\nof the Company’s loans, debt securities, equity securities or assets, (iv) any proposal to seek representation on the board of directors\nof the Company or otherwise seek to control or influence the management, board of directors or policies of any of the Company, (v)\nany request or proposal to waive, terminate or amend the provisions of this Agreement or (vi) any proposal, arrangement or other\nstatement that is inconsistent with the terms of this Agreement, including this Section 6;\n6.2 instigate, encourage or assist any third party (including forming a “group” within the meaning of Section 13(d)(3) of the\nExchange Act with any such third party) to do, or enter into any discussions or agreements with any third party with respect to, any\nof the actions set forth in clause 6.1 above;\n6.3\nacquire (or offer, propose or agree to acquire), or solicit an offer to acquire, of record or beneficially, directly or\nindirectly, acting alone or in concert, by purchase or otherwise, any loans, debt securities, equity securities or assets of the Company\nor any of its subsidiaries, or rights or options to acquire interests in any of the Company’s loans, debt securities, equity securities or\nassets, except that Recipient may beneficially own up to 4.9% of the Company’s outstanding loans, debt securities and equity\nsecurities and may own an amount in excess of such percentage solely to the extent resulting exclusively from actions taken by the\nCompany;\n6.4\nacquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange\nor otherwise, (i) any of the assets, tangible or intangible, of the Company or any of its affiliates or (ii) direct or indirect rights,\nwarrants or options to acquire any assets of the Company or any of its affiliates, except for such assets as are then being offered for\nsale by the Company or any of its affiliates;\n6.5\narrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities of the\nCompany or any securities convertible into or exchangeable or exercisable for any voting securities or assets of the Company,\nexcept for such assets as are then being offered for sale by the Company or any of its affiliates; or\n6.6\ntake any action which would reasonably be expected to require the Company or any of its affiliates to make a public\nannouncement regarding any of the actions set forth in clauses 6.1 -6 .3 above.\n6.7\nThe foregoing restrictions shall not apply to any of the Recipient’s Representatives effecting or recommending\ntransactions in securities (a) in the ordinary course of its business as an investment advisor, broker, dealer in securities, market\nmaker, specialist or block positioner and (b) not at the direction or request of the Recipient.\n6.8 Notwithstanding the foregoing provisions of this Section 6, the restrictions set forth in this Section 6 shall terminate and\nbe of no further force and effect if the Company enters into a definitive agreement with respect to, or publicly announces that it\nplans to enter into, a transaction involving all or a controlling portion of the Company’s equity securities or all or substantially all of\nthe Company’s assets (whether by merger, consolidation, business combination, tender or exchange offer, recapitalization,\nrestructuring, sale, equity issuance or otherwise).\n7.\nNo Representations or Warranties. The Confidential Information is being provided to Recipient “as is” and without any\nrepresentation or warranty of any kind, either express or implied, regarding the accuracy or completeness or other quality of the\nConfidential Information. In no event shall the Company or its affiliates or any of their respective directors, officers, employees,\nagents or Representatives (including, without limitation, Guggenheim) have any liability to Recipient relating to or arising out of\nany use of the Confidential Information.\n8. Indemnification. Recipient shall indemnify and hold harmless the Company and its affiliates and their respective directors,\nofficers, employees, agents and Representatives from and against any and all losses, damages, costs and expenses (including,\nwithout limitation, reasonable attorneys’ fees and expenses) caused by or arising out of any breach of this Agreement by Recipient\nor any breach for which Recipient is responsible hereunder. In any and all actions, suits, proceedings, claims, demands or judgments\narising out of or related to this agreement the prevailing party shall be entitled to recovery of attorney’s fees and other costs and\nexpenses.\n9. Equitable Remedies. Recipient hereby agrees that its failure to perform any obligation or duty which it has agreed to perform\nunder this Agreement will cause irreparable harm to the Company, which harm cannot be adequately compensated for by money\ndamages. It is further agreed by Recipient that an order of specific performance or for injunctive relief against Recipient in the event\nof a breach or default under the terms of this Agreement would be equitable and would not work a hardship on Recipient.\nAccordingly, in the event of a breach or default by Recipient hereunder, the Company, without any bond or other security being\nrequired and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to\ncompel specific performance by, or to obtain injunctive relief against, Recipient, with respect to any obligation or duty herein or\nbreach thereof.\n10. No Licenses Granted. The Company grants no licenses, by implication or otherwise, under any patent, copyright, trademark,\nintellectual property rights, trade secret or other rights by disclosing Confidential Information under this Agreement.\n11. Definitive Agreement. The Company and the Recipient understand and agree that no contract or agreement providing for any\ntransaction involving the Company or Recipient shall be deemed to exist between Recipient and the Company unless and until a\nfinal definitive agreement has been executed and delivered, and the Company and the Recipient hereby waive in advance, any\nclaims (including, without limitation, breach of contract) in connection with any such transaction unless and until Recipient and the\nCompany shall have entered into a final definitive agreement. The Company and the Recipient also agree that unless and until a\nfinal definitive agreement between Recipient and the Company has been executed and delivered, neither Recipient nor the Company\nwill be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement except for\nthe matters specifically agreed to herein. The Company reserves the right, in its sole discretion, to reject any and all proposals made\nby Recipient and to terminate discussions and negotiations with Recipient at any time. Recipient further understands that (i) the\nCompany shall be free to conduct any process for any transaction involving the Company, if and as the Company in its sole\ndiscretion shall determine (including, without limitation, negotiating with any other interested party and entering into a definitive\nagreement without prior notice to Recipient or any other person), (ii) any procedures relating to such process or transaction may be\nchanged at any time in the Company’s sole discretion without notice to Recipient or any other person, and (iii) Recipient shall not\nhave any claims whatsoever against the Company or any of its agents or representatives (including, without limitation,\nGuggenheim) arising out of or relating to any transaction involving the Company (other than any claims against the parties to a\ndefinitive agreement with Recipient in accordance with the terms thereof) nor, unless a definitive agreement is entered into with\nRecipient, against any third party with whom a transaction is entered into.\n12. Trading in Securities. Recipient acknowledges that it is aware, and agrees to advise its directors, officers, employees, agents\nand Representatives who are informed as to the matters which are the subject of this Agreement, that the United States securities\nlaws prohibit any person who has material, non-public information concerning the Transaction from purchasing or selling securities\nof a company that may be a party to such Transaction or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\n13. Export. Recipient and its employees shall abide by all export laws, rules and regulations of the United States Government, or\nany agency thereof, including, but not limited to, the Export Control Regulations of the US Department of Commerce, the\nInternational Traffic in Arms Regulations of the US Department of State, and the National Industrial Security Program Operating\nManual (DOD 5220.22 -M), in connection with the disclosure, use, export and/or re-export of all information disclosed under this\nAgreement.\n14. Miscellaneous. This Agreement shall be binding upon, and inure to the benefit of, and be enforceable by, the parties hereto\nand their respective successors and assigns, but this Agreement shall not be assignable by Recipient without the prior written\nconsent of the Company. This Agreement constitutes the complete agreement between the parties hereto with respect to the subject\nmatter hereof and shall continue in full force and effect until terminated by mutual agreement of the parties hereto. The section\nheadings used herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this\nAgreement. This Agreement shall be construed, performed and enforced in accordance with, and governed by, the internal laws of\nthe State of Maryland, without giving effect to the principles of conflicts of law thereof, and each party consents to personal\njurisdiction in such state and voluntarily submits to the jurisdiction of the state and federal courts in Baltimore, Maryland, in any\naction or proceeding relating to this Agreement. Whenever possible, each provision of this Agreement shall be interpreted in such a\nmanner as to be effective and valid under applicable law, but if any provision hereof is held to be invalid, illegal or unenforceable\nunder any applicable law or rule in any jurisdiction, such provision will be ineffective only to the extent of such invalidity, illegality,\nor unenforceability, without invalidating the remainder of this Agreement. This Agreement may not be modified or amended and no\nprovision hereof may be waived, in whole or in part, except by a written agreement signed by the parties hereto. No waiver of any\nbreach or default hereunder shall be considered valid unless in writing, and no such waiver shall be deemed a waiver of any\nsubsequent breach or default of the same or similar nature. This Agreement may be executed in any number of counterparts, each of\nwhich shall be deemed an original, but all of which taken together shall constitute one and the same instrument.\n15. Term. This Agreement shall remain in full force and effect for two (2) years from the date hereof.\nIN WITNESS WHEREOF, the parties hereto have duly executed this Agreement effective as of the date first set forth above.\nThe KeyW Holding Corporation\nJacobs Engineering Group Inc.\nBy:\n/s/ Philip Luci, Jr.\nBy:\n/s/ Jeff Goldfarb\nTitle:\nEVP & General Counsel\nTitle:\nSVP, Corporate Development
9a7975811ae1ee69f6fb40c4e14c69a1.pdf	effective_date jurisdiction party term	EX-99.(E)(3) 2 d334994dex99e3.htm EX-(E)(3)\nExhibit (e)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made as of November 17, 2016, by and between Nimble\nStorage, Inc. a corporation organized under the laws of Delaware (the “Company”), and Hewlett Packard Enterprise Company, a Delaware\ncorporation (“HPE”).\nHPE is evaluating forms of a potential transaction with respect to the Company (a “Transaction”), in connection with which each may\ndisclose certain information, including Confidential 1nformation (as defined below), to the other. As a condition to such information being\nfurnished to each party, its affiliates, its subsidiaries and other individuals and entities controlled, directly or indirectly, by such party\n(“Affiliates”), and the respective directors, employees, consultants, accountants, attorneys and advisors of such party and its Affiliates with\nwhich such party has entered into confidentiality agreements with material terms that are substantially similar to those in this Agreement\n(collectively with such Affiliates, “Associates”), each party agrees such information shall be provided to Associates for the limited purpose of\nevaluating, negotiating or consummating the Transaction, to treat the other party’s Confidential Information in accordance with the provisions of\nthis Agreement and to take or abstain from taking certain other actions, as described in this Agreement. The foregoing definition of Associates\nwho may be furnished confidential information hereby specifically excludes third parties who provide stockholder representation services. A\nparty disclosing Confidential Information hereunder is referred to herein as “the disclosing party” and a party receiving the Confidential\nInformation of a disclosing party hereunder is referred to herein as “the receiving party.”\n1. Definition of Confidential Information; Use and Disclosure.\n“Confidential Information” means any information, technical data or know-how, including, but not limited to, that which relates to\nresearch, product or service plans, business practices, agreement terms, products, services, employees, suppliers, customers, technology or other\nstrategic partners, stockholders, markets, software, know-how, developments, inventions, processes, designs, drawings, engineering, hardware\nconfiguration information, marketing, finances, notes, analyses or studies and all tangible and intangible embodiments thereof of any kind\nwhatsoever, whether conveyed in writing or orally by the disclosing party or its Associates to the receiving party or its Associates in connection\nwith the evaluation of a Transaction. The term “Confidential Information” shall be deemed to include those portions of any notes, analyses,\ncompilations, studies, interpretations, memoranda or other documents (regardless of the form thereof) prepared by the receiving party or its\nAssociates which contain, reflect or are based upon, in whole or in part, any information furnished to the receiving party or its Associates\npursuant hereto. Notwithstanding the foregoing, Confidential Information does not include information, technical data or know-how which: (i) is\nin the possession of the receiving party or its Associates at the time of disclosure, as shown by files and records immediately prior to the time of\ndisclosure; (ii) prior to or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action\nof the receiving party or its Associates; (iii) is obtained by the receiving party or its Associates from a source other than the disclosing party or its\nAssociates, which source would not be reasonably expected by the\nreceiving party or its Associates to have any obligation of confidentiality to the disclosing party with respect to such information; (iv) is\napproved, in writing, for release by the disclosing party; or (v) the receiving party or its Associates can document was independently developed\nby the receiving party or its Associates without use of or reference to the disclosing party’s Confidential Information.\nEach of the parties hereto agree not to use the Confidential Information disclosed to it by the other party or its Associates except in\nconnection with preparing a proposal for and any discussions of a Transaction or as otherwise permitted hereunder. Neither party will disclose\nany Confidential Information of the other party to third parties except those of its Associates who are required to have the information in order to\nevaluate and discuss a Transaction. The receiving party shall inform its Associates of the confidential nature of the Confidential Information and\nshall instruct them to treat the information confidentially. The receiving party shall be responsible for any breach of this Agreement by its\nAssociates and agrees, at its sole expense, to take all commercially reasonable measures to restrain its Associates from disclosure or use of the\nConfidential Information in breach of this Agreement. Each party agrees that it will take commercially reasonable measures to protect the\nconfidentiality of, and to avoid having Confidential Information of the other party enter the public domain, become publicly available, or be held\nby persons not authorized hereunder to have such Confidential Information, which measures shall include at least the same degree of care that the\nreceiving party utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other party in writing of\nany misuse or misappropriation of such Confidential Information of the other party that may come to its attention.\n2. Nonpublicity. The existence and the terms of this Agreement, any Transaction, the fact that any Confidential Information has been\nprovided to the other party, and the existence, nature and status of any discussions between the parties shall be treated as Confidential\nInformation hereunder, shall be maintained in strict confidence by the parties hereto and by their respective Associates and, subject to Section 3\nof this Agreement, shall not be disclosed to any third party.\n3. Required Disclosure. In the event that a receiving party or its Associates is or becomes legally compelled under applicable law,\nregulation or securities exchange listing agreement, or by a competent governmental, administrative or regulatory authority or in a proceeding\nbefore a court, arbitrator or administrative agency, whether or not as a result of a Transaction to which the Company has consented, to disclose\nany portion of the Confidential Information of a disclosing party, that discussions or negotiations between the parties hereto are taking place or\nhave taken place, or any of the terms, conditions or other facts with respect to a Transaction, including the status thereof, the receiving party will,\nand will direct its Associates to, provide the disclosing party with prompt written notice (unless prohibited by law) of such legal compulsion, and\nshall delay disclosure, if and to the extent permitted or practicable, until the disclaiming party has had an opportunity to seek a protective order or\nother appropriate remedy or to waive compliance by the receiving party and/or its Associates with the relevant provisions of this Agreement. In\nthe event that a protective order or other remedy is not obtained in such a proceeding, or the disclosing party fails to waive compliance with the\nrelevant provisions of this Agreement, the receiving party agrees that it will, and will direct its Associates to, disclose only that Confidential\nInformation of the disclosing party which its counsel advises\nis legally required to be disclosed and will exercise commercially reasonable efforts, and will direct its Associates to exercise their commercially\nreasonable efforts, at the request and expense of the disclosing party, to cooperate with the disclosing party in its efforts to obtain reliable\nassurance that confidential treatment will be accorded the Confidential Information which is so disclosed.\n4. No License Granted. Nothing in this Agreement is intended to grant any rights to either party under any patent, copyright, trade secret\nor other intellectual property right, nor shall this Agreement grant either party any rights in or to the other party’s Confidential Information,\nexcept the limited right to review such Confidential Information solely for the purposes of determining whether to enter into, and the undertaking\nof or the advising with respect to, a Transaction.\n5. No Representation of Accuracy.· Each party acknowledges that neither the other party nor any of its Associates has made any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information made available by the other\nparty or its Associates. Each party agrees that, except as set forth in a definitive agreement executed by the parties, neither party nor any of its\nAssociates shall have any liability to the other party or to any of its Associates relating to or resulting from the use of such other party’s\nConfidential Information or any errors therein m omissions therefrom. Only those representations or warranties made in a definitive agreement,\nwhen, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n6. Definitive Agreements. Each party acknowledges and agrees that other than with respect to the matters specifically set forth herein, no\ncontract or agreement providing a Transaction shall be deemed to exist between the parties unless and until a definitive agreement has been\nexecuted and delivered. The parties further agree that each party reserves the right, in its sole discretion, to reject any and all proposals made by\nthe other party or any of its Associates with regard to a Transaction and to terminate discussions or negotiations at any time.\n7. Similar Products. Each disclosing party acknowledges that the receiving party or its Associates may currently or in the future be\ndeveloping information internally, or receiving information from other parties, that is similar to the disclosing party’s Confidential Information.\nNothing in this Agreement will prohibit the receiving party or its Associates from developing, manufacturing, marketing, selling, servicing or\nsupporting or having developed, manufactured, marketed, sold, serviced or supported for it products, concepts, systems or techniques that are\nsimilar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the disclosing party’s Confidential\nInformation, provided that the receiving party and its Associates do not use any of the disclosing party’s Confidential Information in connection\nwith such activities. Neither party nor its respective Associates shall have any obligation to limit or restrict the assignment of its respective\nemployees or consultants as a result of their having had access to Confidential Information of the other party or its Associates.\n8. Residuals. The receiving party’s employees may use any Residuals for any purpose, provided that this paragraph does not grant or\nimply any license or other right to use any patent, trademark, copyright, mask work right or other intellectual property right. “Residuals” means\ninformation that is retained, as general knowledge and experience, in the\nunaided memory of the receiving party’s employees who have had access to the disclosing party’s Confidential Information within the scope of\nthe receiving party’s obligations under this Agreement, but who no longer have access to such Confidential Information. However, Residuals\ndoes not include any detailed financial or personnel data. The ability to use Residuals shall be narrowly construed, is intended only to alleviate\nthe possibility of inadvertent breach of this Agreement as a result of routine, unaided memory retention, and does not allow the receiving party to\nuse or disclose information known to the receiving party to be Confidential Information that is subject to this Agreement. The memory of an\nemployee of the receiving party is unaided if such employee has not intentionally memorized the Confidential Information or retained notes or\nother aids to such memory,\n9. Commercial Relationship Use. Notwithstanding any obligations or restrictions to the contrary contained herein, if during due diligence\nreview, HPE learns of flaws or problems with Company’s products, software, services or intellectual property rights, the Associates of HPE\nevaluating the potential Transaction may share such information with the Associates of HPE who are responsible for purchasing such products,\nsoftware or services or licensing such intellectual property on behalf of HPE (“Purchasing Associates”). For avoidance of doubt, Purchasing\nAssociates of the receiving party that receive such information agree to be bound by the terms of this Agreement. In the event any Confidential\nInformation is disclosed pursuant to this Section 9, HPE shall notify the Company of any information shared with Associates of HPE within\nfifteen (15) business days after such disclosure.\n10. Termination of Discussions. Following written notice by one party to another of the termination of discussions between the parties,\nupon written request of the disclosing party, the receiving party shall take reasonable steps to instruct all persons involved in the Transaction to\ndestroy all Confidential Information furnished to the receiving party by or on behalf of the disclosing party pursuant to this Agreement.\nNotwithstanding the foregoing, the receiving party and its Associates may retain any Confidential Information to the extent required pursuant to\nthe regulatory compliance or record retention policies of such receiving party or Associate.\n11. Term. The foregoing commitments of either party in this Agreement regarding the confidentiality and non-use of Confidential\nInformation shall survive any termination of discussions between the parties and shall continue for a period of eighteen (18) months following\nthe date of this Agreement.\n12. Attorney-Client Privilege. To the extent that any Confidential Information of the disclosing party may include materials subject to the\nattorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or\ngovernmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their\ndesire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the\nconfidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. All Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine and other\napplicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine,\n13. Notice. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in\nwriting and shall he deemed properly given on the day of delivery (or, if such date is not a business day, on the first business day after delivery) if\ndelivered by hand or email (if submitting by email, substantive discussions to be included only in password protected attachments) (with\nconfirmation of delivery), or on the first business day after being sent by overnight courier or overnight express delivery service (in each case,\nwith confirmation of delivery) to the address set forth beneath the name of such party below (or to such other address as such party shall have\nspecified in a written notice given to the other parties hereto):\nif to HPE:\nHewlett Packard Enterprise Company\n3000 Hanover Street\nPalo Alto, CA 94304\nAttn: General Counsel\nif to the Company:\nNimble Storage, Inc.\n211 River Oaks Parkway\nSan Jose, CA 95134\nAttn: General Counsel\nGC@nimblestorage.com\n14. Governing Law and Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the\nState of Delaware applicable to agreements made and to be performed within that state. Each of the parties hereby agrees and irrevocably\nconsents to personal jurisdiction and venue in any federal or state court within Wilmington, Delaware, having subject matter jurisdiction, for the\npurposes of any action, suit or proceeding arising out of or relating to this agreement. To the fullest extent permitted by law, each of the parties\nhereby agrees to waive trial by jury in any action proceeding or counterclaim brought by or on behalf of either party with respect to any matter\nwhatsoever relating to this Agreement.\n15. Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto and supersedes all other prior\nagreements and understandings, both written and oral, among or between any of the parties with respect to the subject matter hereof and thereof.\nAll modifications of, waivers of and amendments to this letter agreement must be in writing and signed by both parties hereto.\n16. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one instrument. Any counterpart signed by an authorized representative of a party and delivered to the other party by\nemail, facsimile, PDF, or other similar electronic means shall be deemed an original counterpart and duly delivered.\n[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK]\nIN WITNESS WHEREOF, the parties have executed this Mutual Non-Disclosure Agreement as of the day and year first above written.\nNIMBLE STORAGE, INC.\nBy: /s/ Suresh Vasudevan\nName: Suresh Vasudevan\nTitle: CEO\nHEWLETT PACKARD ENTERPRISE\nCOMPANY\nBy: /s/ Vishal Bhagwati\nName: Vishal Bhagwati\nTitle: SVP – Corporate Development	EX-99.(E)(3) 2 d334994dex99e3.htm EX-(E)(3)\nExhibit (e)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made as of November 17, 2016, by and between Nimble\nStorage, Inc. a corporation organized under the laws of Delaware (the “Company”), and Hewlett Packard Enterprise Company, a Delaware\ncorporation (“HPE”).\nHPE is evaluating forms of a potential transaction with respect to the Company (a “Transaction™), in connection with which each may\ndisclose certain information, including Confidential 1nformation (as defined below), to the other. As a condition to such information being\nfurnished to each party, its affiliates, its subsidiaries and other individuals and entities controlled, directly or indirectly, by such party\n(“Affiliates™), and the respective directors, employees, consultants, accountants, attorneys and advisors of such party and its Affiliates with\nwhich such party has entered into confidentiality agreements with material terms that are substantially similar to those in this Agreement\n(collectively with such Affiliates, “Associates”), each party agrees such information shall be provided to Associates for the limited purpose of\nevaluating, negotiating or consummating the Transaction, to treat the other party’s Confidential Information in accordance with the provisions of\nthis Agreement and to take or abstain from taking certain other actions, as described in this Agreement. The foregoing definition of Associates\nwho may be furnished confidential information hereby specifically excludes third parties who provide stockholder representation services. A\nparty disclosing Confidential Information hereunder is referred to herein as “the disclosing party” and a party receiving the Confidential\nInformation of a disclosing party hereunder is referred to herein as “the receiving party.”\n1. Definition of Confidential Information; Use and Disclosure.\n“Confidential Information” means any information, technical data or know-how, including, but not limited to, that which relates to\nresearch, product or service plans, business practices, agreement terms, products, services, employees, suppliers, customers, technology or other\nstrategic partners, stockholders, markets, software, know-how, developments, inventions, processes, designs, drawings, engineering, hardware\nconfiguration information, marketing, finances, notes, analyses or studies and all tangible and intangible embodiments thereof of any kind\nwhatsoever, whether conveyed in writing or orally by the disclosing party or its Associates to the receiving party or its Associates in connection\nwith the evaluation of a Transaction. The term “Confidential Information” shall be deemed to include those portions of any notes, analyses,\ncompilations, studies, interpretations, memoranda or other documents (regardless of the form thereof) prepared by the receiving party or its\nAssociates which contain, reflect or are based upon, in whole or in part, any information furnished to the receiving party or its Associates\npursuant hereto. Notwithstanding the foregoing, Confidential Information does not include information, technical data or know-how which: (i) is\nin the possession of the receiving party or its Associates at the time of disclosure, as shown by files and records immediately prior to the time of\ndisclosure; (ii) prior to or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action\nof the receiving party or its Associates; (iii) is obtained by the receiving party or its Associates from a source other than the disclosing party or its\nAssociates, which source would not be reasonably expected by the\nreceiving party or its Associates to have any obligation of confidentiality to the disclosing party with respect to such information; (iv) is\napproved, in writing, for release by the disclosing party; or (v) the receiving party or its Associates can document was independently developed\nby the receiving party or its Associates without use of or reference to the disclosing party’s Confidential Information.\nEach of the parties hereto agree not to use the Confidential Information disclosed to it by the other party or its Associates except in\nconnection with preparing a proposal for and any discussions of a Transaction or as otherwise permitted hereunder. Neither party will disclose\nany Confidential Information of the other party to third parties except those of its Associates who are required to have the information in order to\nevaluate and discuss a Transaction. The receiving party shall inform its Associates of the confidential nature of the Confidential Information and\nshall instruct them to treat the information confidentially. The receiving party shall be responsible for any breach of this Agreement by its\nAssociates and agrees, at its sole expense, to take all commercially reasonable measures to restrain its Associates from disclosure or use of the\nConfidential Information in breach of this Agreement. Each party agrees that it will take commercially reasonable measures to protect the\nconfidentiality of, and to avoid having Confidential Information of the other party enter the public domain, become publicly available, or be held\nby persons not authorized hereunder to have such Confidential Information, which measures shall include at least the same degree of care that the\nreceiving party utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other party in writing of\nany misuse or misappropriation of such Confidential Information of the other party that may come to its attention.\n2. Nonpublicity. The existence and the terms of this Agreement, any Transaction, the fact that any Confidential Information has been\nprovided to the other party, and the existence, nature and status of any discussions between the parties shall be treated as Confidential\nInformation hereunder, shall be maintained in strict confidence by the parties hereto and by their respective Associates and, subject to Section 3\nof this Agreement, shall not be disclosed to any third party.\n3. Required Disclosure. In the event that a receiving party or its Associates is or becomes legally compelled under applicable law,\nregulation or securities exchange listing agreement, or by a competent governmental, administrative or regulatory authority or in a proceeding\nbefore a court, arbitrator or administrative agency, whether or not as a result of a Transaction to which the Company has consented, to disclose\nany portion of the Confidential Information of a disclosing party, that discussions or negotiations between the parties hereto are taking place or\nhave taken place, or any of the terms, conditions or other facts with respect to a Transaction, including the status thereof, the receiving party will,\nand will direct its Associates to, provide the disclosing party with prompt written notice (unless prohibited by law) of such legal compulsion, and\nshall delay disclosure, if and to the extent permitted or practicable, until the disclaiming party has had an opportunity to seek a protective order or\nother appropriate remedy or to waive compliance by the receiving party and/or its Associates with the relevant provisions of this Agreement. In\nthe event that a protective order or other remedy is not obtained in such a proceeding, or the disclosing party fails to waive compliance with the\nrelevant provisions of this Agreement, the receiving party agrees that it will, and will direct its Associates to, disclose only that Confidential\nInformation of the disclosing party which its counsel advises\nis legally required to be disclosed and will exercise commercially reasonable efforts, and will direct its Associates to exercise their commercially\nreasonable efforts, at the request and expense of the disclosing party, to cooperate with the disclosing party in its efforts to obtain reliable\nassurance that confidential treatment will be accorded the Confidential Information which is so disclosed.\n4. No License Granted. Nothing in this Agreement is intended to grant any rights to either party under any patent, copyright, trade secret\nor other intellectual property right, nor shall this Agreement grant either party any rights in or to the other party’s Confidential Information,\nexcept the limited right to review such Confidential Information solely for the purposes of determining whether to enter into, and the undertaking\nof or the advising with respect to, a Transaction.\n5. No Representation of Accuracy.- Each party acknowledges that neither the other party nor any of its Associates has made any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information made available by the other\nparty or its Associates. Each party agrees that, except as set forth in a definitive agreement executed by the parties, neither party nor any of its\nAssociates shall have any liability to the other party or to any of its Associates relating to or resulting from the use of such other party’s\nConfidential Information or any errors therein m omissions therefrom. Only those representations or warranties made in a definitive agreement,\nwhen, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n6. Definitive Agreements. Each party acknowledges and agrees that other than with respect to the matters specifically set forth herein, no\ncontract or agreement providing a Transaction shall be deemed to exist between the parties unless and until a definitive agreement has been\nexecuted and delivered. The parties further agree that each party reserves the right, in its sole discretion, to reject any and all proposals made by\nthe other party or any of its Associates with regard to a Transaction and to terminate discussions or negotiations at any time.\n7. Similar Products. Each disclosing party acknowledges that the receiving party or its Associates may currently or in the future be\ndeveloping information internally, or receiving information from other parties, that is similar to the disclosing party’s Confidential Information.\nNothing in this Agreement will prohibit the receiving party or its Associates from developing, manufacturing, marketing, selling, servicing or\nsupporting or having developed, manufactured, marketed, sold, serviced or supported for it products, concepts, systems or techniques that are\nsimilar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the disclosing party’s Confidential\nInformation, provided that the receiving party and its Associates do not use any of the disclosing party’s Confidential Information in connection\nwith such activities. Neither party nor its respective Associates shall have any obligation to limit or restrict the assignment of its respective\nemployees or consultants as a result of their having had access to Confidential Information of the other party or its Associates.\n8. Residuals. The receiving party’s employees may use any Residuals for any purpose, provided that this paragraph does not grant or\nimply any license or other right to use any patent, trademark, copyright, mask work right or other intellectual property right. “Residuals” means\ninformation that is retained, as general knowledge and experience, in the\nunaided memory of the receiving party’s employees who have had access to the disclosing party’s Confidential Information within the scope of\nthe receiving party’s obligations under this Agreement, but who no longer have access to such Confidential Information. However, Residuals\ndoes not include any detailed financial or personnel data. The ability to use Residuals shall be narrowly construed, is intended only to alleviate\nthe possibility of inadvertent breach of this Agreement as a result of routine, unaided memory retention, and does not allow the receiving party to\nuse or disclose information known to the receiving party to be Confidential Information that is subject to this Agreement. The memory of an\nemployee of the receiving party is unaided if such employee has not intentionally memorized the Confidential Information or retained notes or\nother aids to such memory,\n9. Commercial Relationship Use. Notwithstanding any obligations or restrictions to the contrary contained herein, if during due diligence\nreview, HPE learns of flaws or problems with Company’s products, software, services or intellectual property rights, the Associates of HPE\nevaluating the potential Transaction may share such information with the Associates of HPE who are responsible for purchasing such products,\nsoftware or services or licensing such intellectual property on behalf of HPE (“Purchasing Associates”). For avoidance of doubt, Purchasing\nAssociates of the receiving party that receive such information agree to be bound by the terms of this Agreement. In the event any Confidential\nInformation is disclosed pursuant to this Section 9, HPE shall notify the Company of any information shared with Associates of HPE within\nfifteen (15) business days after such disclosure.\n10. Termination of Discussions. Following written notice by one party to another of the termination of discussions between the parties,\nupon written request of the disclosing party, the receiving party shall take reasonable steps to instruct all persons involved in the Transaction to\ndestroy all Confidential Information furnished to the receiving party by or on behalf of the disclosing party pursuant to this Agreement.\nNotwithstanding the foregoing, the receiving party and its Associates may retain any Confidential Information to the extent required pursuant to\nthe regulatory compliance or record retention policies of such receiving party or Associate.\n11. Term. The foregoing commitments of either party in this Agreement regarding the confidentiality and non-use of Confidential\nInformation shall survive any termination of discussions between the parties and shall continue for a period of eighteen (18) months following\nthe date of this Agreement.\n12.  Attorney-Client Privilege. To the extent that any Confidential Information of the disclosing party may include materials subject to the\nattorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or\ngovernmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their\ndesire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the\nconfidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. All Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine and other\napplicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine,\n13. Notice. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in\nwriting and shall he deemed properly given on the day of delivery (or, if such date is not a business day, on the first business day after delivery) if\ndelivered by hand or email (if submitting by email, substantive discussions to be included only in password protected attachments) (with\nconfirmation of delivery), or on the first business day after being sent by overnight courier or overnight express delivery service (in each case,\nwith confirmation of delivery) to the address set forth beneath the name of such party below (or to such other address as such party shall have\nspecified in a written notice given to the other parties hereto):\nif to HPE:\nHewlett Packard Enterprise Company\n3000 Hanover Street\nPalo Alto, CA 94304\nAttn: General Counsel\nif to the Company:\nNimble Storage, Inc.\n211 River Oaks Parkway\nSan Jose, CA 95134\nAttn: General Counsel\nGC@nimblestorage.com\n14. Governing Law and Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the\nState of Delaware applicable to agreements made and to be performed within that state. Each of the parties hereby agrees and irrevocably\nconsents to personal jurisdiction and venue in any federal or state court within Wilmington, Delaware, having subject matter jurisdiction, for the\npurposes of any action, suit or proceeding arising out of or relating to this agreement. To the fullest extent permitted by law, each of the parties\nhereby agrees to waive trial by jury in any action proceeding or counterclaim brought by or on behalf of either party with respect to any matter\nwhatsoever relating to this Agreement.\n15. Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto and supersedes all other prior\nagreements and understandings, both written and oral, among or between any of the parties with respect to the subject matter hereof and thereof.\nAll modifications of, waivers of and amendments to this letter agreement must be in writing and signed by both parties hereto.\n \n16. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one instrument. Any counterpart signed by an authorized representative of a party and delivered to the other party by\nemail, facsimile, PDF, or other similar electronic means shall be deemed an original counterpart and duly delivered.\n \n[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK]\nIN WITNESS WHEREQF, the parties have executed this Mutual Non-Disclosure Agreement as of the day and year first above written.\nNIMBLE STORAGE, INC.\nBy:  /s/ Suresh Vasudevan\nName: Suresh Vasudevan\nTitle: CEO\nHEWLETT PACKARD ENTERPRISE\nCOMPANY\nBy:  /s/ Vishal Bhagwati\nName: Vishal Bhagwati\nTitle: SVP — Corporate Development	EX-99.(E)(3) 2 d334994dex99e3.htm EX-(E)(3)\nExhibit (e)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis MUTUAL NONDISCLOSURE AGREEMENT (this "Agreement") is made as of November 17, 2016, by and between Nimble\nStorage, Inc. a corporation organized under the laws of Delaware (the "Company"), and Hewlett Packard Enterprise Company, a Delaware\ncorporation ("HPE").\nHPE is evaluating forms of a potential transaction with respect to the Company (a "Transaction"), in connection with which each may\ndisclose certain information, including Confidential 1nformation (as defined below), to the other. As a condition to such information being\nfurnished to each party, its affiliates, its subsidiaries and other individuals and entities controlled, directly or indirectly, by such party\n("Affiliates"), and the respective directors, employees, consultants, accountants, attorneys and advisors of such party and its Affiliates with\nwhich such party has entered into confidentiality agreements with material terms that are substantially similar to those in this Agreement\n(collectively with such Affiliates, "Associates"), each party agrees such information shall be provided to Associates for the limited purpose\nof\nevaluating, negotiating or consummating the Transaction, to treat the other party's Confidential Information in accordance with the provisions of\nthis Agreement and to take or abstain from taking certain other actions, as described in this Agreement. The foregoing definition of Associates\nwho may be furnished confidential information hereby specifically excludes third parties who provide stockholder representation services.\nA\nparty disclosing Confidential Information hereunder is referred to herein as "the disclosing party" and a party receiving the Confidentia\nInformation of a disclosing party hereunder is referred to herein as "the receiving party."\n1.\nDefinition of Confidential Information; Use and Disclosure.\n"Confidential Information" means any information, technical data or know-how, including, but not limited to, that which relates to\nresearch, product or service plans, business practices, agreement terms, products, services, employees, suppliers, customers, technology or other\nstrategic partners, stockholders, markets, software, know-how, developments, inventions, processes, designs, drawings, engineering, hardware\nconfiguration information, marketing, finances, notes, analyses or studies and all tangible and intangible embodiments thereof of any kind\nwhatsoever, whether conveyed in writing or orally by the disclosing party or its Associates to the receiving party or its Associates in connection\nwith\nthe evaluation of a Transaction. The term "Confidential Information" shall be deemed to include those portions of any notes, analyses,\ncompilations, studies, interpretations, memoranda or other documents (regardless of the form thereof) prepared by the receiving party or its\nAssociates which contain, reflect or are based upon, in whole or in part, any information furnished to the receiving party or its Associates\npursuant hereto. Notwithstanding the foregoing, Confidential Information does not include information, technical data or know-how which: (i) is\nin the possession of the receiving party or its Associates at the time of disclosure, as shown by files and records immediately prior to the time of\ndisclosure; (ii) prior to or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action\nof the receiving party or its Associates; (iii) is obtained by the receiving party or its Associates from a source other than the disclosing party or its\nAssociates, which source would not be reasonably expected by the\nreceiving party or its Associates to have any obligation of confidentiality to the disclosing party with respect to such information; (iv)\nis\napproved, in writing, for release by the disclosing party; or (v) the receiving party or its Associates can document was independently developed\nby the receiving party or its Associates without use of or reference to the disclosing party's Confidential Information.\nEach of the parties hereto agree not to use the Confidential Information disclosed to it by the other party or its Associates except in\nconnection with preparing a proposal for and any discussions of a Transaction or as otherwise permitted hereunder. Neither party will disclose\nany Confidential Information of the other party to third parties except those of its Associates who are required to have the information in order\nto\nevaluate and discuss a Transaction. The receiving party shall inform its Associates of the confidential nature of the Confidential Information\nand\nshall instruct them to treat the information confidentially. The receiving party shall be responsible for any breach of this Agreement by\nits\nAssociates and agrees, at its sole expense, to take all commercially reasonable measures to restrain its Associates from disclosure or use of the\nConfidential Information in breach of this Agreement. Each party agrees that it will take commercially reasonable measures to protect the\nconfidentiality of, and to avoid having Confidential Information of the other party enter the public domain, become publicly available, or be held\nby persons not authorized hereunder to have such Confidentia Information, which measures shall include at least the same degree of care that\nthe\nreceiving party utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other party in writing of\nany misuse or misappropriation of such Confidential Information of the other party that may come to its attention.\n2. Nonpublicity.. The existence and the terms of this Agreement, any Transaction, the fact that any Confidential Information has been\nprovided to the other party, and the existence, nature and status of any discussions between the parties shall be treated as Confidential\nInformation hereunder, shall be maintained in strict confidence by the parties hereto and by their respective Associates and, subject to Section\n3\nof this Agreement, shall not be disclosed to any third party.\n3. Required Disclosure. In the event that a receiving party or its Associates is or becomes legally compelled under applicable law,\nregulation or securities exchange listing agreement, or by a competent governmental, administrative or regulatory authority or in a proceeding\nbefore a court, arbitrator or administrative agency, whether or not as a result of a Transaction to which the Company has consented, to disclose\nany portion of the Confidential Information of a disclosing party, that discussions or negotiations between the parties hereto are taking place\nor\nhave\ntaken\nplace,\nor\nany of the terms, conditions or other facts with respect to a Transaction, including the status thereof, the receiving party will,\nand will direct its Associates to, provide the disclosing party with prompt written notice (unless prohibited by law) of such legal compulsion, and\nshall delay disclosure, if and to the extent permitted or practicable, until the disclaiming party has had an opportunity to seek a protective order\nor\nother appropriate remedy or to waive compliance by the receiving party and/or its Associates with the relevant provisions of this Agreement.\nIn\nthe event that a protective order or other remedy is not obtained in such a proceeding, or the disclosing party fails to waive compliance with the\nrelevant provisions of this Agreement, the receiving party agrees that it will, and will direct its Associates to, disclose only that Confidential\nInformation of the disclosing party which its counsel advises\nis legally required to be disclosed and will exercise commercially reasonable efforts, and wil direct its Associates to exercise their commercially\nreasonable efforts, at the request and expense of the disclosing party, to cooperate with the disclosing party in its efforts to obtain reliable\nassurance that confidential treatment will be accorded the Confidential Information which is so disclosed.\n4. No License Granted. Nothing in this Agreement is intended to grant any rights to either party under any patent, copyright, trade secret\nor other intellectual property right, nor shall this Agreement grant either party any rights in or to the other party's Confidential Information,\nexcept the limited right to review such Confidential Information solely for the purposes of determining whether to enter into, and the undertaking\nof or the advising with respect to, a Transaction.\n5. No Representation of Accuracy. Each party acknowledges that neither the other party nor any of its Associates has made any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information made available by the other\nparty or its Associates. Each party agrees that, except as set forth in a definitive agreement executed by the parties, neither party nor any of\nits\nAssociates shall have any liability to the other party or to any of its Associates relating to or resulting from the use of such other party's\nConfidential Information or any errors therein m omissions therefrom. Only those representations or warranties made in a definitive agreement,\nwhen, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n6. Definitive Agreements. Each party acknowledges and agrees that other than with respect to the matters specifically set forth herein, no\ncontract or agreement providing a Transaction shall be deemed to exist between the parties unless and until a definitive agreement has been\nexecuted and delivered. The parties further agree that each party reserves the right, in its sole discretion, to reject any and all proposals made\nby\nthe other party or any of its Associates with regard to a Transaction and to terminate discussions or negotiations at any time.\n7. Similar Products. Each disclosing party acknowledges that the receiving party or its Associates may currently or in the future be\ndeveloping information internally, or receiving information from other parties, that is similar to the disclosing party's Confidential Information.\nNothing in this Agreement will prohibit the receiving party or its Associates from developing, manufacturing, marketing, selling, servicing or\nsupporting or having developed, manufactured, marketed, sold, serviced or supported for it products, concepts, systems or techniques that are\nsimilar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the disclosing party's Confidential\nInformation, provided that the receiving party and its Associates do not use any of the disclosing party's Confidential Information in connection\nwith such activities. Neither party nor its respective Associates shall have any obligation to limit or restrict the assignment of its respective\nemployees or consultants as a result of their having had access to Confidential Information of the other party or its Associates.\n8.\nResiduals. The receiving party's employees may use any Residuals for any purpose, provided that this paragraph does not grant or\nimply any license or other right to use any patent, trademark, copyright, mask work right or other intellectual property right. "Residuals" means\ninformation that is retained, as general knowledge and experience, in the\nunaided memory of the receiving party's employees who have had access to the disclosing party's Confidential Information within the scope of\nthe receiving party's obligations under this Agreement, but who no longer have access to such Confidential Information. However, Residuals\ndoes not include any detailed financial or personnel data. The ability to use Residuals shall be narrowly construed, is intended only to alleviate\nthe possibility of inadvertent breach of this Agreement as a result of routine, unaided memory retention, and does not allow the receiving party\nto\nuse or disclose information known to the receiving party to be Confidential Information that is subject to this Agreement. The memory of an\nemployee of the receiving party is unaided if such employee has not intentionally memorized the Confidential Information or retained notes\nor\nother aids to such memory,\n9. Commercial Relationship Use. Notwithstanding any obligations or restrictions to the contrary contained herein, if during due diligence\nreview, HPE learns of flaws or problems with Company's products, software, services or intellectual property rights, the Associates of HPE\nevaluating the potential Transaction may share such information with the Associates of HPE who are responsible for purchasing such products,\nsoftware or services or licensing such intellectual property on behalf of HPE ("Purchasing Associates"). For avoidance of doubt, Purchasing\nAssociates of the receiving party that receive such information agree to be bound by the terms of this Agreement. In the event any Confidential\nInformation is disclosed pursuant to this Section 9, HPE shall notify the Company of any information shared with Associates of HPE within\nfifteen (15) business days after such disclosure.\n10. Termination of Discussions. Following written notice by one party to another of the termination of discussions between the parties,\nupon written request of the disclosing party, the receiving party shall take reasonable steps to instruct all persons involved in the Transaction to\ndestroy all Confidential Information furnished to the receiving party by or on behalf of the disclosing party pursuant to this Agreement.\nNotwithstanding the foregoing, the receiving party and its Associates may retain any Confidential Information to the extent required pursuant to\nthe regulatory compliance or record retention policies of such receiving party or Associate.\n11. Term. The foregoing commitments of either party in this Agreement regarding the confidentiality and non-use of Confidential\nInformation shall survive any termination of discussions between the parties and shall continue for a period of eighteen (18) months following\nthe date of this Agreement.\n12. Attorney-Client Privilege. To the extent that any Confidential Information of the disclosing party may include materials subject to the\nattorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings\nor\ngovernmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their\ndesire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way\nthe\nconfidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. All Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine and other\napplicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine,\n13. Notice. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in\nwriting and shall he deemed properly given on the day of delivery (or, if such date is not a business day, on the first business day after delivery) if\ndelivered by hand or email (if submitting by email, substantive discussions to be included only in password protected attachments) (with\nconfirmation of delivery), or on the first business day after being sent by overnight courier or overnight express delivery service (in each case,\nwith confirmation of delivery) to the address set forth beneath the name of such party below (or to such other address as such party shall have\nspecified in a written notice given to the other parties hereto):\nif to HPE:\nHewlett Packard Enterprise Company\n3000 Hanover Street\nPalo Alto, CA 94304\nAttn: General Counsel\nif to the Company:\nNimble Storage, Inc.\n211 River Oaks Parkway\nSan Jose, CA 95134\nAttn: General Counsel\nGC@nimblestorage.com\n14. Governing Law and Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the\nState of Delaware applicable to agreements made and to be performed within that state. Each of the parties hereby agrees and irrevocably\nconsents to personal jurisdiction and venue in any federal or state court within Wilmington, Delaware, having subject matter jurisdiction, for the\npurposes of any action, suit or proceeding arising out of or relating to this agreement. To the fullest extent permitted by law, each of the parties\nhereby agrees to waive trial by jury in any action proceeding or counterclaim brought by or on behalf of either party with respect to any matter\nwhatsoever relating to this Agreement.\n15. Entire Agreement This Agreement constitutes the entire agreement among the parties hereto and supersedes all other prior\nagreements and understandings, both written and oral, among or between any of the parties with respect to the subject matter hereof and thereof.\nAll modifications of, waivers of and amendments to this letter agreement must be in writing and signed by both parties hereto.\n16. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one instrument. Any counterpart signed by an authorized representative of a party and delivered to the other party by\nemail, facsimile, PDF, or other similar electronic means shall be deemed an original counterpart and duly delivered.\n[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK]\nIN WITNESS WHEREOF, the parties have executed this Mutual Non-Disclosure Agreement as of the day and year first above written.\nNIMBLE STORAGE, INC.\nBy:\n/s/ Suresh Vasudevan\nName: Suresh Vasudevan\nTitle: CEO\nHEWLETT PACKARD ENTERPRISE\nCOMPANY\nBy:\n/s/ Vishal Bhagwati\nName: Vishal Bhagwati\nTitle: SVP - Corporate Development	EX-99.(E)(3) 2 d334994dex99e3.htm EX-(E)(3)\nExhibit (e)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made as of November 17, 2016, by and between Nimble\nStorage, Inc. a corporation organized under the laws of Delaware (the “Company”), and Hewlett Packard Enterprise Company, a Delaware\ncorporation (“HPE”).\nHPE is evaluating forms of a potential transaction with respect to the Company (a “Transaction”), in connection with which each may\ndisclose certain information, including Confidential 1nformation (as defined below), to the other. As a condition to such information being\nfurnished to each party, its affiliates, its subsidiaries and other individuals and entities controlled, directly or indirectly, by such party\n(“Affiliates”), and the respective directors, employees, consultants, accountants, attorneys and advisors of such party and its Affiliates with\nwhich such party has entered into confidentiality agreements with material terms that are substantially similar to those in this Agreement\n(collectively with such Affiliates, “Associates”), each party agrees such information shall be provided to Associates for the limited purpose of\nevaluating, negotiating or consummating the Transaction, to treat the other party’s Confidential Information in accordance with the provisions of\nthis Agreement and to take or abstain from taking certain other actions, as described in this Agreement. The foregoing definition of Associates\nwho may be furnished confidential information hereby specifically excludes third parties who provide stockholder representation services. A\nparty disclosing Confidential Information hereunder is referred to herein as “the disclosing party” and a party receiving the Confidential\nInformation of a disclosing party hereunder is referred to herein as “the receiving party.”\n1. Definition of Confidential Information; Use and Disclosure.\n“Confidential Information” means any information, technical data or know-how, including, but not limited to, that which relates to\nresearch, product or service plans, business practices, agreement terms, products, services, employees, suppliers, customers, technology or other\nstrategic partners, stockholders, markets, software, know-how, developments, inventions, processes, designs, drawings, engineering, hardware\nconfiguration information, marketing, finances, notes, analyses or studies and all tangible and intangible embodiments thereof of any kind\nwhatsoever, whether conveyed in writing or orally by the disclosing party or its Associates to the receiving party or its Associates in connection\nwith the evaluation of a Transaction. The term “Confidential Information” shall be deemed to include those portions of any notes, analyses,\ncompilations, studies, interpretations, memoranda or other documents (regardless of the form thereof) prepared by the receiving party or its\nAssociates which contain, reflect or are based upon, in whole or in part, any information furnished to the receiving party or its Associates\npursuant hereto. Notwithstanding the foregoing, Confidential Information does not include information, technical data or know-how which: (i) is\nin the possession of the receiving party or its Associates at the time of disclosure, as shown by files and records immediately prior to the time of\ndisclosure; (ii) prior to or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action\nof the receiving party or its Associates; (iii) is obtained by the receiving party or its Associates from a source other than the disclosing party or its\nAssociates, which source would not be reasonably expected by the\nreceiving party or its Associates to have any obligation of confidentiality to the disclosing party with respect to such information; (iv) is\napproved, in writing, for release by the disclosing party; or (v) the receiving party or its Associates can document was independently developed\nby the receiving party or its Associates without use of or reference to the disclosing party’s Confidential Information.\nEach of the parties hereto agree not to use the Confidential Information disclosed to it by the other party or its Associates except in\nconnection with preparing a proposal for and any discussions of a Transaction or as otherwise permitted hereunder. Neither party will disclose\nany Confidential Information of the other party to third parties except those of its Associates who are required to have the information in order to\nevaluate and discuss a Transaction. The receiving party shall inform its Associates of the confidential nature of the Confidential Information and\nshall instruct them to treat the information confidentially. The receiving party shall be responsible for any breach of this Agreement by its\nAssociates and agrees, at its sole expense, to take all commercially reasonable measures to restrain its Associates from disclosure or use of the\nConfidential Information in breach of this Agreement. Each party agrees that it will take commercially reasonable measures to protect the\nconfidentiality of, and to avoid having Confidential Information of the other party enter the public domain, become publicly available, or be held\nby persons not authorized hereunder to have such Confidential Information, which measures shall include at least the same degree of care that the\nreceiving party utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other party in writing of\nany misuse or misappropriation of such Confidential Information of the other party that may come to its attention.\n2. Nonpublicity. The existence and the terms of this Agreement, any Transaction, the fact that any Confidential Information has been\nprovided to the other party, and the existence, nature and status of any discussions between the parties shall be treated as Confidential\nInformation hereunder, shall be maintained in strict confidence by the parties hereto and by their respective Associates and, subject to Section 3\nof this Agreement, shall not be disclosed to any third party.\n3. Required Disclosure. In the event that a receiving party or its Associates is or becomes legally compelled under applicable law,\nregulation or securities exchange listing agreement, or by a competent governmental, administrative or regulatory authority or in a proceeding\nbefore a court, arbitrator or administrative agency, whether or not as a result of a Transaction to which the Company has consented, to disclose\nany portion of the Confidential Information of a disclosing party, that discussions or negotiations between the parties hereto are taking place or\nhave taken place, or any of the terms, conditions or other facts with respect to a Transaction, including the status thereof, the receiving party will,\nand will direct its Associates to, provide the disclosing party with prompt written notice (unless prohibited by law) of such legal compulsion, and\nshall delay disclosure, if and to the extent permitted or practicable, until the disclaiming party has had an opportunity to seek a protective order or\nother appropriate remedy or to waive compliance by the receiving party and/or its Associates with the relevant provisions of this Agreement. In\nthe event that a protective order or other remedy is not obtained in such a proceeding, or the disclosing party fails to waive compliance with the\nrelevant provisions of this Agreement, the receiving party agrees that it will, and will direct its Associates to, disclose only that Confidential\nInformation of the disclosing party which its counsel advises\nis legally required to be disclosed and will exercise commercially reasonable efforts, and will direct its Associates to exercise their commercially\nreasonable efforts, at the request and expense of the disclosing party, to cooperate with the disclosing party in its efforts to obtain reliable\nassurance that confidential treatment will be accorded the Confidential Information which is so disclosed.\n4. No License Granted. Nothing in this Agreement is intended to grant any rights to either party under any patent, copyright, trade secret\nor other intellectual property right, nor shall this Agreement grant either party any rights in or to the other party’s Confidential Information,\nexcept the limited right to review such Confidential Information solely for the purposes of determining whether to enter into, and the undertaking\nof or the advising with respect to, a Transaction.\n5. No Representation of Accuracy.· Each party acknowledges that neither the other party nor any of its Associates has made any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information made available by the other\nparty or its Associates. Each party agrees that, except as set forth in a definitive agreement executed by the parties, neither party nor any of its\nAssociates shall have any liability to the other party or to any of its Associates relating to or resulting from the use of such other party’s\nConfidential Information or any errors therein m omissions therefrom. Only those representations or warranties made in a definitive agreement,\nwhen, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n6. Definitive Agreements. Each party acknowledges and agrees that other than with respect to the matters specifically set forth herein, no\ncontract or agreement providing a Transaction shall be deemed to exist between the parties unless and until a definitive agreement has been\nexecuted and delivered. The parties further agree that each party reserves the right, in its sole discretion, to reject any and all proposals made by\nthe other party or any of its Associates with regard to a Transaction and to terminate discussions or negotiations at any time.\n7. Similar Products. Each disclosing party acknowledges that the receiving party or its Associates may currently or in the future be\ndeveloping information internally, or receiving information from other parties, that is similar to the disclosing party’s Confidential Information.\nNothing in this Agreement will prohibit the receiving party or its Associates from developing, manufacturing, marketing, selling, servicing or\nsupporting or having developed, manufactured, marketed, sold, serviced or supported for it products, concepts, systems or techniques that are\nsimilar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the disclosing party’s Confidential\nInformation, provided that the receiving party and its Associates do not use any of the disclosing party’s Confidential Information in connection\nwith such activities. Neither party nor its respective Associates shall have any obligation to limit or restrict the assignment of its respective\nemployees or consultants as a result of their having had access to Confidential Information of the other party or its Associates.\n8. Residuals. The receiving party’s employees may use any Residuals for any purpose, provided that this paragraph does not grant or\nimply any license or other right to use any patent, trademark, copyright, mask work right or other intellectual property right. “Residuals” means\ninformation that is retained, as general knowledge and experience, in the\nunaided memory of the receiving party’s employees who have had access to the disclosing party’s Confidential Information within the scope of\nthe receiving party’s obligations under this Agreement, but who no longer have access to such Confidential Information. However, Residuals\ndoes not include any detailed financial or personnel data. The ability to use Residuals shall be narrowly construed, is intended only to alleviate\nthe possibility of inadvertent breach of this Agreement as a result of routine, unaided memory retention, and does not allow the receiving party to\nuse or disclose information known to the receiving party to be Confidential Information that is subject to this Agreement. The memory of an\nemployee of the receiving party is unaided if such employee has not intentionally memorized the Confidential Information or retained notes or\nother aids to such memory,\n9. Commercial Relationship Use. Notwithstanding any obligations or restrictions to the contrary contained herein, if during due diligence\nreview, HPE learns of flaws or problems with Company’s products, software, services or intellectual property rights, the Associates of HPE\nevaluating the potential Transaction may share such information with the Associates of HPE who are responsible for purchasing such products,\nsoftware or services or licensing such intellectual property on behalf of HPE (“Purchasing Associates”). For avoidance of doubt, Purchasing\nAssociates of the receiving party that receive such information agree to be bound by the terms of this Agreement. In the event any Confidential\nInformation is disclosed pursuant to this Section 9, HPE shall notify the Company of any information shared with Associates of HPE within\nfifteen (15) business days after such disclosure.\n10. Termination of Discussions. Following written notice by one party to another of the termination of discussions between the parties,\nupon written request of the disclosing party, the receiving party shall take reasonable steps to instruct all persons involved in the Transaction to\ndestroy all Confidential Information furnished to the receiving party by or on behalf of the disclosing party pursuant to this Agreement.\nNotwithstanding the foregoing, the receiving party and its Associates may retain any Confidential Information to the extent required pursuant to\nthe regulatory compliance or record retention policies of such receiving party or Associate.\n11. Term. The foregoing commitments of either party in this Agreement regarding the confidentiality and non-use of Confidential\nInformation shall survive any termination of discussions between the parties and shall continue for a period of eighteen (18) months following\nthe date of this Agreement.\n12. Attorney-Client Privilege. To the extent that any Confidential Information of the disclosing party may include materials subject to the\nattorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or\ngovernmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their\ndesire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the\nconfidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. All Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine and other\napplicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine,\n13. Notice. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in\nwriting and shall he deemed properly given on the day of delivery (or, if such date is not a business day, on the first business day after delivery) if\ndelivered by hand or email (if submitting by email, substantive discussions to be included only in password protected attachments) (with\nconfirmation of delivery), or on the first business day after being sent by overnight courier or overnight express delivery service (in each case,\nwith confirmation of delivery) to the address set forth beneath the name of such party below (or to such other address as such party shall have\nspecified in a written notice given to the other parties hereto):\nif to HPE:\nHewlett Packard Enterprise Company\n3000 Hanover Street\nPalo Alto, CA 94304\nAttn: General Counsel\nif to the Company:\nNimble Storage, Inc.\n211 River Oaks Parkway\nSan Jose, CA 95134\nAttn: General Counsel\nGC@nimblestorage.com\n14. Governing Law and Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the\nState of Delaware applicable to agreements made and to be performed within that state. Each of the parties hereby agrees and irrevocably\nconsents to personal jurisdiction and venue in any federal or state court within Wilmington, Delaware, having subject matter jurisdiction, for the\npurposes of any action, suit or proceeding arising out of or relating to this agreement. To the fullest extent permitted by law, each of the parties\nhereby agrees to waive trial by jury in any action proceeding or counterclaim brought by or on behalf of either party with respect to any matter\nwhatsoever relating to this Agreement.\n15. Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto and supersedes all other prior\nagreements and understandings, both written and oral, among or between any of the parties with respect to the subject matter hereof and thereof.\nAll modifications of, waivers of and amendments to this letter agreement must be in writing and signed by both parties hereto.\n16. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one instrument. Any counterpart signed by an authorized representative of a party and delivered to the other party by\nemail, facsimile, PDF, or other similar electronic means shall be deemed an original counterpart and duly delivered.\n[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK]\nIN WITNESS WHEREOF, the parties have executed this Mutual Non-Disclosure Agreement as of the day and year first above written.\nNIMBLE STORAGE, INC.\nBy: /s/ Suresh Vasudevan\nName: Suresh Vasudevan\nTitle: CEO\nHEWLETT PACKARD ENTERPRISE\nCOMPANY\nBy: /s/ Vishal Bhagwati\nName: Vishal Bhagwati\nTitle: SVP – Corporate Development
9ab3b4ff495e339138dfb9178140218f.pdf	effective_date jurisdiction party term	Exhibit 10.2\nNon–Competition, Non–Solicitation, and Confidentiality Agreement\nThis Non–Competition, Non–Solicitation, and Confidentiality Agreement, dated as of January 16, 2019 (this “Agreement”), is made\nby and among Glacier Bancorp, Inc. (“GBCI”), Glacier Bank, a wholly owned subsidiary of GBCI (“Glacier Bank”), FNB Bancorp\n(“FNB”), The First National Bank of Layton, a wholly owned subsidiary of FNB (“First National Bank”), and the undersigned, each\nof whom is a director of FNB and First National Bank (each, a “Director”).\nRecitals\nA. FNB and First National Bank have entered into a Plan and Agreement of Merger, dated January 16, 2019 (the “Merger\nAgreement”), with GBCI and Glacier Bank. Under the terms of the Merger Agreement, FNB will merge with and into GBCI,\nFirst National Bank will merge with and into Glacier Bank (collectively, the “Merger”), and the former branches of First\nNational Bank will operate as a division of Glacier Bank (the “Division”).\nB. The parties to this Agreement believe that the future success of GBCI, Glacier Bank, and the Division following the Merger\nrequires that no Director be affiliated in any substantial way with a Competing Business for a reasonable period of time after\nclosing of the Merger or, if applicable, termination of such Director’s service as a post-Merger member of the Division’s\nadvisory board (the “Advisory Board”).\nAgreement\nIn consideration of the parties’ performance under the Merger Agreement, each Director agrees as follows:\n1. Definitions. Capitalized terms not defined in this Agreement have the meaning assigned to those terms in the Merger\nAgreement. The following definitions also apply to this Agreement:\na. A “Competing Business” means any depository, financial institution, wealth management company, or trust company, or\nholding company thereof (including without limitation any start-up bank or bank in formation), operating anywhere within\nthe Covered Area.\nb. The “Covered Area” means the following counties in the State of Utah: Box Elder County, Davis County, Morgan County,\nSalt Lake County, Summit County, Utah County, and Weber County.\nc. The “Term” means, with respect to each Director, the period of time beginning on the Effective Date and ending on the\nlater to occur of (i) two (2) years after the Effective Date or, if applicable, (ii) one (1) year following the termination of any\nservice by such Director as a post-Merger member of the Advisory Board; provided, however, that in no event shall the\nTerm exceed four (4) years after the Effective Date.\n-1-\n2. Participation in Competing Business. Except as provided in Section 5 or 6, during the Term, each Director agrees not to\nbecome involved with a Competing Business in any capacity or serve, directly or indirectly, a Competing Business in any\nmanner, including without limitation (a) as a shareholder, member, partner, director, officer, manager, investor, organizer,\nfounder, employee, consultant, agent, or representative, or (b) during the organization and pre-opening phases in the formation of\na Competing Business; provided, however, that for the avoidance of doubt, the restrictions set forth herein shall not prevent a\nDirector from using services of any Competing Business that are generally available to the public.\n3. Non-Solicitation. During the Term, each Director agrees not to, directly or indirectly, either for himself or herself or for any\nother person, solicit or attempt to solicit: (a) any employees or independent contractors of GBCI or GBCI’s subsidiaries,\ndivisions, or affiliates to participate, as an employee or otherwise, in any manner in a Competing Business; (b) any customers,\nbusiness partners, or joint venturers of GBCI or GBCI’s subsidiaries, divisions, or affiliates to transfer their business to a\nCompeting Business or to reduce such customers’, business partners’ or joint venturers’ business or cease doing business with\nGBCI or GBCI’s subsidiaries, divisions, or affiliates; or (c) the termination of an employment or contractual relationship\nbetween GBCI or GBCI’s subsidiaries, divisions, or affiliates and any employee, independent contractor, customer, business\npartner, or joint venturer. Solicitation prohibited under this Section 3 includes solicitation by any means, including without\nlimitation meetings, letters, or other direct mailings, electronic communications of any kind, and internet communications;\nprovided, however, that nothing contained in this Section 3 is intended to prohibit general advertising or general solicitation not\ndirected at such employees, general contractors, customers, business partners, or joint venturers.\n4. Confidential Information.\na. Confidentiality. During and after the Term, each Director shall not at any time, directly or indirectly, divulge, reveal, or\ncommunicate any Confidential Information of FNB, First National Bank, GBCI or GBCI’s subsidiaries, divisions, or\naffiliates obtained by the Director while serving as a director of FNB and/or First National Bank (or, if applicable, as a\npost-Merger member of the Advisory Board) to any person or use any Confidential Information for his or her own benefit or\nfor the benefit of any other person. For purposes of this Agreement, “Confidential Information” includes all secrets and\nother confidential information, knowledge, know-how, sales, financial information, customers, lists of customers and\nprospective customers, broker lists, rate sheets, strategies, or products, as well as all documents, reports, and proposals\nrelating to the same, with respect to FNB, First National Bank, GBCI, or GBCI’s subsidiaries, divisions, or affiliates.\nNotwithstanding the foregoing, “Confidential Information” does not include (i) information that is or becomes generally\n-2-\navailable to the public other than as a result of an unauthorized disclosure by the Director, (ii) information that was in the\nDirector’s possession prior to serving as a director of FNB and/or First National Bank or information received by the\nDirector from another person without any limitations on disclosure, but only if the Director had no reason to believe the\nother person was prohibited from using or disclosing the information by contractual or fiduciary obligation, or\n(iii) information that was independently developed by the Director without using any Confidential Information of FNB,\nFirst National Bank, GBCI, or GBCI’s subsidiaries, divisions, or affiliates.\nb. Defend Trade Secrets Act. Pursuant to the Defend Trade Secrets Act of 2016, 18 U.S .C . § 1833(b), a Director will not be\nheld criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made\n(i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for\nthe purpose of reporting or investigating a suspected violation of law, or (ii) is made in a complaint or other document filed\nin a proceeding, if such filing is made under seal.\nc. Legally Required Disclosures. Notwithstanding any provision of this Agreement to the contrary, a Director may disclose or\nreveal any information, whether including in whole or in part any Confidential Information, that such Director is required to\ndisclose or reveal under any applicable law or is otherwise required to disclose or reveal by any governmental authority (by\noral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand, or other similar process); provided, however, that such Director makes a good faith request that the confidentiality\nof the Confidential Information be preserved and, to the extent not prohibited by applicable law, gives GBCI prompt notice\nof such requirement in advance of such disclosure and exercises reasonable efforts to preserve the confidentiality of such\nConfidential Information, including, without limitation, by reasonably cooperating with GBCI to obtain an appropriate\nprotective order or other reliable assurance that confidential treatment will be accorded to such Confidential Information by\nthe governmental authority or other recipient of the Confidential Information. If, in the absence of a protective order (or\nother reliable assurance) or the receipt of a written waiver from GBCI, the Director is nonetheless legally compelled to\ndisclose Confidential Information to a governmental authority, the Director may disclose to such governmental authority\nonly that portion of the Confidential Information which is legally required to be disclosed.\n5. Outside Covered Area; Requests for Consent. Nothing in this Agreement prevents a Director from becoming involved with,\nas a shareholder, member, partner, director, officer, manager, investor, organizer, founder, employee, consultant, agent,\nrepresentative, or otherwise, a financial institution that has no operations in the Covered Area. During the Term, prior to\nengaging in any manner in a Competing Business, a Director may request in writing that GBCI waive the restrictions set forth in\nthis Agreement with respect to a particular proposed activity. If GBCI determines, in its sole discretion, that such activity is\nacceptable, GBCI may provide such Director with written consent to engage in such activity, and such activity will thereafter not\nbe deemed a Competing Business.\n-3-\n6. Passive Interest. Notwithstanding anything to the contrary contained herein, nothing in this Agreement will prevent a Director\nfrom owning two percent (2%) or less of any class of security of a Competing Business.\n7. Miscellaneous.\na. Individual Obligations. The obligations of each of the signatories to this Agreement are independent of one another and are\nnot intended to be joint obligations of the undersigned. This Agreement is intended to be enforceable by GBCI and/or\nGlacier Bank against each Director individually.\nb. Severability. If any provision of this Agreement or the application of such provision to any person or circumstances will be\nheld invalid or unenforceable by a court of competent jurisdiction, such provision or application will be unenforceable only\nto the extent of such invalidity or unenforceability, and the remainder of the provision held invalid or unenforceable and the\napplication of such provision to persons or circumstances, other than the party as to which it is held invalid, and the\nremainder of this Agreement, will not be affected.\nc. Reformation. If any court determines that the obligations and restrictions set forth in this Agreement are unenforceable, then\nthe parties request such court to reform any unenforceable provisions to the maximum obligations or restrictions, term, and\nscope, as applicable, that such court finds enforceable.\nd. Expenses. Except as otherwise may be agreed in writing, all costs, fees, and expenses incurred in connection with this\nAgreement and the transactions contemplated hereby shall be paid by the party incurring such costs, fees, and expenses.\ne. Amendments; Waivers. Any provision of this Agreement may be amended or waived if, and only if, such amendment or\nwaiver is in writing and signed (i) in the case of an amendment, by GBCI and the Director to be bound by such amendment,\nand (ii) in the case of a waiver, by the party against whom the waiver is to be effective. No failure or delay by any party in\nexercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege.\nf. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Utah,\nexcept to the extent that federal law may govern certain matters.\n-4-\ng. Remedies. Any breach of this Agreement by a Director will entitle GBCI and/or Glacier Bank, together with their\nsuccessors and assigns, to injunctive relief and/or specific performance, as well as to any other legal or equitable remedies it\nmay be entitled to, it being agreed that money damages alone would be an inadequate remedy for such breach. The rights\nand remedies of the parties to this Agreement are cumulative and not alternative.\nh. Counterparts. This Agreement may be executed in one or more counterparts, including facsimile and/or scanned\ncounterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same\ndocument.\n[Signatures appear on the following pages]\n-5-\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nGLACIER BANCORP, INC.\nFNB BANCORP\nBy:Randall M. Chesler\nBy:K. John Jones\nIts:President and CEO\nIts:President and CEO\nGLACIER BANK\nTHE FIRST NATIONAL\nBANK OF LAYTON\nBy:Randall M. Chesler\nBy:K. John Jones\nIts:President and CEO\nIts:President and CEO\n[Director signatures appear on the following pages]\n[Signature Page to Non-Competition, Non-Solicitation, and Confidentiality Agreement]\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nDIRECTOR:\n[Director Signature Page to Non–Competition, Non–Solicitation, and Confidentiality Agreement]	Exhibit 10.2\nNon- C ompetition, Non- Solicitation, and C onfidentiality Agreement\nThis Non—Competition, Non— Solicitation, and Confidentiality Agreement, dated as of January 16, 2019 (this ”Agreement”), is made\nby and among Glacier Bancorp, Inc. (”G BCI”), Glacier Bank, a wholly owned subsidiary of GBCI (”G lacier Bank"), FNB Bancorp\n(”FNB"), The First National Bank of Layton, a wholly owned subsidiary of FNB (”First National Bank"), and the undersigned, each\nof whom is a director of FNB and First National Bank (each, a ”Director").\nRecitals\nA. FNB and First National Bank have entered into a Plan and A greement of Merger, datedJanuary 16, 2019 (the ”M erger\nAgreement”), with GBCI and Glacier Bank. Under the terms of the Merger Agreement, FNB will merge with and into GBCI,\nFirst National Bank will merge with and into Glacier Bank (collectively, the ”Merger”), and the former branches of First\nNational Bank will operate as a division of Glacier Bank (the ”Division").\nB. The parties to this Agreement believe that the future success of GBCI, Glacier Bank, and the Division following the Merger\nrequires that no Director be affiliated in any substantial way with a Competing Business for a reasonable period of time after\nclosing of the Merger or, if applicable, termination of such Director’ s service as a post-Merger member of the Division’ s\nadvisory board (the ”Advisory Board”).\nAgreement\nIn consideration of the parties' performance under the Merger Agreement, each Director agrees as follows:\n1. Definitions. Capitalized terms not defined in this Agreement have the meaning assigned to those terms in the Merger\nAgreement. The following definitions also apply to this Agreement:\na. A ”Competing Business” means any depository, financial institution, wealth management company, or trust company, or\nholding company thereof (including without limitation any start-up bank or bank in formation), operating anywhere within\nthe Covered Area.\nb. The ”Covered Area” means the following counties in the State of Utah: Box Elder County, Davis County, Morgan County,\nSalt Lake County, Summit County, Utah County, and Weber County.\nc. The ”Term” means, with respect to each Director, the period of time beginning on the Effective Date and ending on the\nlater to occur of (i) two (2) years after the Effective D ate or, if applicable, (ii) one (1) year following the termination of any\nservice by such Director as a post-Merger member of the Advisory Board; provided, however, that in no event shall the\nTerm exceed four (4) years after the Effective Date.\n \nParticipation in Competing Business. Except as provided in Section 5 or 6, during the Term, each Director agrees not to\nbecome involved with a Competing Business in any capacity or serve, directly or indirectly, a Competing Business in any\nmanner, including without limitation (a) as a shareholder, member, partner, director, officer, manager, investor, organizer,\nfounder, employee, consultant, agent, or representative, or (b) during the organization and pre opening phases in the formation of\na Competing Business; provided, however, that for the avoidance of doubt, the restrictions set forth herein shall not prevent a\nDirector from using services of any Competing Business that are generally available to the public.\n \nNon-Solicitation. During the Term, each Director agrees not to, directly or indirectly, either for himself or herself or for any\nother person, solicit or attempt to solicit: (a) any employees or independent contractors of GBCI or GBCI’ s subsidiaries,\ndivisions, or affiliates to participate, as an employee or otherwise, in any manner in a Competing Business; (b) any customers,\nbusiness partners, or joint venturers of G B Cl or G B Cl’ s subsidiaries, divisions, or affiliates to transfer their business to a\nCompeting Business or to reduce such customers', business partners’ or joint venturers’ business or cease doing business with\nG B Cl or G B Cl’ s subsidiaries, divisions, or affiliates; or (c) the termination of an employment or contractual relationship\nbetween G B Cl or G B Cl’ s subsidiaries, divisions, or affiliates and any employee, independent contractor, customer, business\npartner, or joint venturer. Solicitation prohibited under this Section 3 includes solicitation by any means, including without\nlimitation meetings, letters, or other direct mailings, electronic communications of any kind, and intemet communications;\nprovided, however, that nothing contained in this Section 3 is intended to prohibit general advertising or general solicitation not\ndirected at such employees, general contractors, customers, business partners, or joint venturers.\nC onfidential Information.\na. Confidentiality. During and after the Term, each Director shall not at any time, directly or indirectly, divulge, reveal, or\ncommunicate any Confidential Information of FNB, First National Bank, GBCI or GBCI’ s subsidiaries, divisions, or\naffiliates obtained by the Director while serving as a director of FNB and/or First National Bank (or, if applicable, as a\npost-Merger member of the Advisory Board) to any person or use any Confidential Information for his or her own benefit or\nfor the benefit of any other person. For purposes of this Agreement, ”C onfidential Information” includes all secrets and\nother confidential information, knowledge, know-how, sales, financial information, customers, lists of customers and\nprospective customers, broker lists, rate sheets, strategies, or products, as well as all documents, reports, and proposals\nrelating to the same, with respect to FNB, First National Bank, GBCI, or GBCI' s subsidiaries, divisions, or affiliates.\nNotwithstanding the foregoing, ”Confidential Information” does not include (i) information that is or becomes generally\n-2-\n \navailable to the public other than as a result of an unauthorized disclosure by the Director, (ii) information that was in the\nDirector’ s possession prior to serving as a director of FNB and/or First National Bank or information received by the\nDirector from another person without any limitations on disclosure, but only if the Director had no reason to believe the\nother person was prohibited from using or disclosing the information by contractual or fiduciary obligation, or\n(iii) information that was independently developed by the Director without using any Confidential Information of FNB,\nFirst National Bank, G B CI, or G B CI’ s subsidiaries, divisions, or affiliates.\nb. Defend Trade Secrets Act. Pursuant to the Defend Trade Secrets Act of 2016, 18 U.S.C. § 1833(b), a Director will not be\nheld criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made\n(i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for\nthe purpose of reporting or investigating a suspected violation of law, or (ii) is made in a complaint or other document filed\nin a proceeding, if such filing is made under seal.\nc. Legally Required Disclosures. Notwithstanding any provision of this Agreement to the contrary, a Director may disclose or\nreveal any information, whether including in whole or in part any Confidential Information, that such Director is required to\ndisclose or reveal under any applicable law or is otherwise required to disclose or reveal by any governmental authority (by\noral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand, or other similar process); provided, however, that such Director makes a good faith request that the confidentiality\nof the Confidential Information be preserved and, to the extent not prohibited by applicable law, gives GBCI prompt notice\nof such requirement in advance of such disclosure and exercises reasonable efforts to preserve the confidentiality of such\nConfidential Information, including, without limitation, by reasonably cooperating with GBCI to obtain an appropriate\nprotective order or other reliable assurance that confidential treatment will be accorded to such Confidential Information by\nthe governmental authority or other recipient of the Confidential Information. If, in the absence of a protective order (or\nother reliable assurance) or the receipt of a written waiver from G BCI, the Director is nonetheless legally compelled to\ndisclose Confidential Information to a governmental authority, the Director may disclose to such governmental authority\nonly that portion of the Confidential Information which is legally required to be disclosed.\nOutside Covered Area; Requests for Consent. Nothing in this Agreement prevents a Director from becoming involved with,\nas a shareholder, member, partner, director, officer, manager, investor, organizer, founder, employee, consultant, agent,\nrepresentative, or otherwise, a financial institution that has no operations in the Covered Area. During the Term, prior to\nengaging in any manner in a Competing Business, a Director may request in writing that GBCI waive the restrictions set forth in\nthis Agreement with respect to a particular proposed activity. If GBCI determines, in its sole discretion, that such activity is\nacceptable, GBCI may provide such Director with written consent to engage in such activity, and such activity will thereafter not\nbe deemed a Competing Business.\n \n6. Passive Interest. Notwithstanding anything to the contrary contained herein, nothing in this Agreement will prevent a Director\nfrom owning two percent (2%) or less of any class of security of a Competing Business.\nMiscellaneous.\na. Individual Obligations. The obligations of each of the signatories to this A greement are independent of one another and are\nnot intended to be joint obligations of the undersigned. This Agreement is intended to be enforceable by GBCI and/or\nGlacier Bank against each Director individually.\nb. Severabilily. If any provision of this Agreement or the application of such provision to any person or circumstances will be\nheld invalid or unenforceable by a court of competent jurisdiction, such provision or application will be unenforceable only\nto the extent of such invalidity or unenforceability, and the remainder of the provision held invalid or unenforceable and the\napplication of such provision to persons or circumstances, other than the party as to which it is held invalid, and the\nremainder of this A greement, will not be affected.\nc. Reformation. If any court determines that the obligations and restrictions set forth in this Agreement are unenforceable, then\nthe parties request such court to reform any unenforceable provisions to the maximum obligations or restrictions, term, and\nscope, as applicable, that such court finds enforceable.\nd. Expenses. Except as otherwise may be agreed in writing, all costs, fees, and expenses incurred in connection with this\nAgreement and the transactions contemplated hereby shall be paid by the party incurring such costs, fees, and expenses.\ne. Amendments; Waivers. Any provision of this A greement may be amended or waived if, and only if, such amendment or\nwaiver is in writing and signed (i) in the case of an amendment, by GBCI and the Director to be bound by such amendment,\nand (ii) in the case of a waiver, by the party against whom the waiver is to be effective. No failure or delay by any party in\nexercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege.\nf. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Utah,\nexcept to the extent that federal law may govern certain matters.\n \ng. Remedies. Any breach of this Agreement by a Director will entitle GBCI and/or Glacier Bank, together with their\nsuccessors and assigns, to injunctive relief and/or specific performance, as well as to any other legal or equitable remedies it\nmay be entitled to, it being agreed that money damages alone would be an inadequate remedy for such breach. The rights\nand remedies of the parties to this Agreement are cumulative and not alternative.\nh. Counterparts. This A greement may be executed in one or more counterparts, including facsimile and/or scanned\ncounterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same\ndocument.\n[Signatures appear on the following pages]\n \nIN WITNESS WHEREOE, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nGLACIER BANCORP, INC. FNB BANCORP\nB3Randall M. Chesler B3K. Jothones\nIt5President and CEO It5President and CEO\nGLACIER BANK THE FIRST NATIONAL\nBANK OF LAYTON\nB3Randall M. Chesler B3K. Jothones\nIt5President and CEO It5President and CEO\n[Director signatures appear on the following pages]\n[Signature Page to Non-Competition, Non-Solicitation, and Confidentiality Agreement]\n \nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nDIRECTOR:\n[Director Signature Page to Non—Competition, Non— Solicitation, and Confidentiality Agreement]	Exhibit 10.2\nNon-Competition, Non-Solicitation, and Confidentiality Agreement\nThis Non-Competition, Non-Solicitation, and Confidentiality A greement, dated as of January 16, 2019 (this "Agreement"), is made\nby\nand among Glacier Bancorp, Inc. ("GBCI"), Glacier Bank, a wholly owned subsidiary of GBCI ("Glacier Bank"), FNB Bancorp\n("FNB"), The First National Bank of Layton, a wholly owned subsidiary of FNB ("First National Bank"), and the undersigned, each\nof whom is a director of FNB and First National Bank (each, a "Director").\nRecitals\nA. FNB and First National Bank have entered into a Plan and A greement of Merger, dated January 16, 2019 (the "Merger\nAgreement"), with GBCI and Glacier Bank. Under the terms of the Merger A greement, FNB will merge with and into GBCI,\nFirst National Bank will merge with and into Glacier Bank (collectively, the "Merger"), and the former branches of First\nNational Bank will operate as a division of Glacier Bank (the "Division").\nB. The parties to this A greement believe that the future success of GBCI, Glacier Bank, and the Division following the Merger\nrequires that no Director be affiliated in any substantial way with a Competing Business for a reasonable period of time after\nclosing of the Merger or, if applicable, termination of such Director's service as a post- Merger member of the Division's\nadvisory board (the "Advisory Board").\nAgreement\nIn consideration of the parties' performance under the Merger A greement, each Director agrees as follows:\n1.\nDefinitions. Capitalized terms not defined in this A greement have the meaning assigned to those terms in the Merger\nA greement. The following definitions also apply to this greement:\na. A Competing Business" means any depository, financial institution, wealth management company, or trust company, or\nholding company thereof (including without limitation any start-up bank or bank in formation), operating anywhere within\nthe Covered Area.\nb.\nThe "Covered Area" means the following counties in the State of Utah: Box Elder County, Davis County, Morgan County,\nSalt Lake County, Summit County, Utah County, and Weber County.\nC.\nThe "Term" means, with respect to each Director, the period of time beginning on the Effective Date and ending on the\nlater to occur of (i) two (2) years after the Effective Date or, if applicable, (ii) one (1) year following the termination of any\nservice by such Director as a st-Merger member of the dvisory Board; provided, however, that in no event shall the\nTerm exceed four (4) years after the Effective Date.\n-1-\n2.\nParticipation in Competing Business. Except as provided in Section 5 or 6, during the Term, each Director agrees not to\nbecome involved with a Competing Business in any capacity or serve, directly or indirectly, a Competing Business in any\nmanner, including without limitation (a) as a shareholder, member, partner, director, officer, manager, investor, organizer,\nfounder, employee, consultant, agent, or representative, or (b) during the organization and pre-opening phases in the formation of\na Competing Business; provided, however that for the avoidance of doubt, the restrictions set forth herein shall not prevent\na\nDirector from using services of any Competing Business that are generally available to the public.\n3.\nNon-Solicitation. During the Term, each Director agrees not to, directly or indirectly, either for himself or herself or for any\nother person, solicit or attempt to solicit: (a) any employees or independent contractors of GBCI or GBCI's subsidiaries,\ndivisions, or affiliates to participate, as an employee or otherwise, in any manner in a Competing Business; (b) any customers,\nbusiness partners, or joint venturers of GBCI or GBCI's subsidiaries, divisions, or affiliates to transfer their business to a\nCompeting Business or to reduce such customers', business partners' or joint venturers' business or cease doing business with\nGBCI or GBCI's subsidiaries, divisions, or affiliates; or (c) the termination of an employment or contractual relationship\nbetween GBCI or GBCI's subsidiaries, divisions, or affiliates and any employee, independent contractor, customer, business\npartner or joint venturer. Solicitation prohibited under this Section 3 includes solicitation by any means, including without\nlimitation meetings, letters, or other direct mailings, electronic communications of any kind, and internet communications;\nprovided, however, that nothing contained in this Section 3 is intended to prohibit general advertising or general solicitation not\ndirected at such employees, general contractors, customers, business partners, or joint venturers.\n4.\nConfidential Information.\na.\nConfidentiality. During and after the Term, each Director shall not at any time, directly or indirectly, divulge, reveal, or\ncommunicate any Confidential Information of FNB, First National Bank, GBCI or GBCI's subsidiaries, divisions, or\naffiliates obtained by the Director while serving as a director of FNB and/or First National Bank (or, if applicable, as\na\nMerger member of the A dvisory Board) to any person or use any Confidential Information for his or her own benefit or\nfor the benefit of any other person. For purposes of this Agreement, "Confidential Information" includes all secrets and\nother confidential information, knowledge, know-how, sales, financial information, customers, lists of customers and\nprospective customers, broker lists, rate sheets, strategies, or products, as well as all documents, reports, and proposals\nrelating to the same, with respect to FNB, First National Bank, GBCI, or GBCI's subsidiaries, divisions, or affiliates.\nNotwithstanding the foregoing, 'Confidential Information" does not include (i) information that is or becomes generally\n-2-\navailable to the public other than as a result of an unauthorized disclosure by the Director, (ii) information that was in the\nDirector's possession prior to serving as a director of FNB and/or First National Bank or information received by the\nDirector from another person without any limitations on disclosure, but only if the Director had no reason to believe the\nother person was prohibited from using or disclosing the information by contractual or fiduciary obligation, or\n(iii) information that was independently developed by the Director without using any Confidential Information of FNB,\nFirst National Bank, GBCI, or GBCI's subsidiaries, divisions, or affiliates.\nb. Defend Trade Secrets Act. Pursuant to the Defend Trade Secrets A ct of 2016, 18 U.S.C. 1833(b), a Director will not be\nheld criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made\n(i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for\nthe purpose of reporting or investigating a suspected violation of law, or (ii) is made in a complaint or other document filed\nin a proceeding, if such filing is made under seal.\nC.\nLegally Required Disclosures. Notwithstanding any provision of this A greement to the contrary, a Director may disclose or\nreveal any information, whether including in whole or in part any Confidential Information, that such Director is required to\ndisclose or reveal under any applicable law or is otherwise required to disclose or reveal by any governmenta authority (by\noral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand, or other similar process); provided, however, that such Director makes a good faith request that the confidentiality\nof the Confidential Information be preserved and, to the extent not prohibited by applicable law, gives GBCI prompt notice\nof such requirement in advance of such disclosure and exercises reasonable efforts to preserve the confidentiality of such\nConfidential Information, including, without limitation, by reasonably cooperating with GBCI to obtain an appropriate\nprotective order or other reliable assurance that confidential treatment will be accorded to such Confidential Information by\nthe governmental authority or other recipient of the Confidential Information. If, in the absence of a protective order (or\nother reliable assurance) or the receipt of a written waiver from GBCI, the Director is nonetheless legally compelled to\ndisclose Confidential Information to a governmental authority, the Director may disclose to such governmental authority\nonly that portion of the Confidential Information which is legally required to be disclosed.\n5. Outside Covered Area; Requests for Consent. Nothing in this greement prevents a Director from becoming involved with,\nas a shareholder, member, partner, director, officer, manager, investor, organizer, founder, employee, consultant, agent,\nrepresentative, or otherwise, a financial institution that has no operations in the Covered Area. During the Term, prior to\nengaging in any manner in a Competing Business, a Director may request in writing that GBCI waive the restrictions set forth in\nthis greement with respect to a particular proposed activity. If GBCI determines, in its sole discretion, that such activity is\nacceptable, GBCI may provide such Director with written consent to engage in such activity, and such activity will thereafter not\nbe deemed a Competing Business.\n-3-\n6.\nPassive Interest. Notwithstanding anything to the contrary contained herein, nothing in this A greement will prevent a Director\nfrom owning two percent (2%) or less of any class of security of a Competing Business.\n7. Miscellaneous.\na.\nIndividual Obligations The obligations of each of the signatories to this A greement are independent of one another and are\nnot intended to be joint obligations of the undersigned. This A greement is intended to be enforceable by GBCI and/or\nGlacier Bank against each Director individually.\nb.\nSeverability. If any provision of this A greement or the application of such provision to any person or circumstances will be\nheld invalid or unenforceable by a court of competent jurisdiction, such provision or application will be unenforceable only\nto the extent of such invalidity or unenforceability, and the remainder of the provision held invalid or unenforceable and the\napplication of such provision to persons or circumstances other than the party as to which it is held invalid, and the\nremainder of this Agreement, will not be affected.\nC.\nReformation. If any court determines that the obligations and restrictions set forth in this A greement are unenforceable, then\nthe parties request such court to reform any unenforceable provisions to the maximum obligations or restrictions, term, and\nscope, as applicable, that such court finds enforceable.\nd.\nExpenses. Except as otherwise may be agreed in writing, all costs, fees, and expenses incurred in connection with this\nAgreement and the transactions contemplated hereby shall be paid by the party incurring such costs, fees, and expenses.\ne.\nA mendments; Waivers Any provision of this A greement may be amended or waived if, and only if, such amendment or\nwaiver is in writing and signed (i) in the case of an amendment, by GBCI and the Director to be bound by such amendment\nand (ii) in the case of a waiver, by the party against whom the waiver is to be effective. No failure or delay by any party in\nexercising any right, power, or privilege under this A greement shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege.\nf.\nGoverning Law. This A greement will be governed by and construed in accordance with the laws of the State of Utah,\nexcept to the extent that federal law may govern certain matters.\n-4-\ng.\nRemedies. Any breach of this Agreement by a Director will entitle GBCI and/or Glacier Bank, together with their\nsuccessors and assigns, to injunctive relief and/or specific performance, as well as to any other legal or equitable remedies it\nmay be entitled to, it being agreed that money damages alone would be an inadequate remedy for such breach. The rights\nand remedies of the parties to this Agreement are cumulative and not altemative.\nh.\nCounterparts. This A greement may be executed in one or more counterparts, including facsimile and/or scanned\ncounterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same\ndocument.\n[Signatures appear on the following pages]\n-5-\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nGLACIER BANCORP, INC.\nFNB BANCORP\nByRandall M. Chesler\nByK. John Jones\nItsresident and CEO\nItsPresident and CEO\nGLACIER BANK\nTHE FIRST NATIONAL\nBANK OF LAYTON\nByRandall M. Chesler\nByK. John Jones\nItsPresident and CEO\nItsPresident and CEO\nDirector signatures appear on the following pages]\n[Signature Page to Non-Competition, Non-Solicitation, and Confidentiality Agreement]\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nDIRECTOR:\n[Director Signature Page to Non-Competition, Non-Solicitation, and Confidentiality Agreement]	Exhibit 10.2\nNon–Competition, Non–Solicitation, and Confidentiality Agreement\nThis Non–Competition, Non–Solicitation, and Confidentiality Agreement, dated as of January 16, 2019 (this “Agreement”), is made\nby and among Glacier Bancorp, Inc. (“GBCI”), Glacier Bank, a wholly owned subsidiary of GBCI (“Glacier Bank”), FNB Bancorp\n(“FNB”), The First National Bank of Layton, a wholly owned subsidiary of FNB (“First National Bank”), and the undersigned, each\nof whom is a director of FNB and First National Bank (each, a “Director”).\nRecitals\nA. FNB and First National Bank have entered into a Plan and Agreement of Merger, dated January 16, 2019 (the “Merger\nAgreement”), with GBCI and Glacier Bank. Under the terms of the Merger Agreement, FNB will merge with and into GBCI,\nFirst National Bank will merge with and into Glacier Bank (collectively, the “Merger”), and the former branches of First\nNational Bank will operate as a division of Glacier Bank (the “Division”).\nB. The parties to this Agreement believe that the future success of GBCI, Glacier Bank, and the Division following the Merger\nrequires that no Director be affiliated in any substantial way with a Competing Business for a reasonable period of time after\nclosing of the Merger or, if applicable, termination of such Director’s service as a post-Merger member of the Division’s\nadvisory board (the “Advisory Board”).\nAgreement\nIn consideration of the parties’ performance under the Merger Agreement, each Director agrees as follows:\n1. Definitions. Capitalized terms not defined in this Agreement have the meaning assigned to those terms in the Merger\nAgreement. The following definitions also apply to this Agreement:\na. A “Competing Business” means any depository, financial institution, wealth management company, or trust company, or\nholding company thereof (including without limitation any start-up bank or bank in formation), operating anywhere within\nthe Covered Area.\nb. The “Covered Area” means the following counties in the State of Utah: Box Elder County, Davis County, Morgan County,\nSalt Lake County, Summit County, Utah County, and Weber County.\nc. The “Term” means, with respect to each Director, the period of time beginning on the Effective Date and ending on the\nlater to occur of (i) two (2) years after the Effective Date or, if applicable, (ii) one (1) year following the termination of any\nservice by such Director as a post-Merger member of the Advisory Board; provided, however, that in no event shall the\nTerm exceed four (4) years after the Effective Date.\n-1-\n2. Participation in Competing Business. Except as provided in Section 5 or 6, during the Term, each Director agrees not to\nbecome involved with a Competing Business in any capacity or serve, directly or indirectly, a Competing Business in any\nmanner, including without limitation (a) as a shareholder, member, partner, director, officer, manager, investor, organizer,\nfounder, employee, consultant, agent, or representative, or (b) during the organization and pre-opening phases in the formation of\na Competing Business; provided, however, that for the avoidance of doubt, the restrictions set forth herein shall not prevent a\nDirector from using services of any Competing Business that are generally available to the public.\n3. Non-Solicitation. During the Term, each Director agrees not to, directly or indirectly, either for himself or herself or for any\nother person, solicit or attempt to solicit: (a) any employees or independent contractors of GBCI or GBCI’s subsidiaries,\ndivisions, or affiliates to participate, as an employee or otherwise, in any manner in a Competing Business; (b) any customers,\nbusiness partners, or joint venturers of GBCI or GBCI’s subsidiaries, divisions, or affiliates to transfer their business to a\nCompeting Business or to reduce such customers’, business partners’ or joint venturers’ business or cease doing business with\nGBCI or GBCI’s subsidiaries, divisions, or affiliates; or (c) the termination of an employment or contractual relationship\nbetween GBCI or GBCI’s subsidiaries, divisions, or affiliates and any employee, independent contractor, customer, business\npartner, or joint venturer. Solicitation prohibited under this Section 3 includes solicitation by any means, including without\nlimitation meetings, letters, or other direct mailings, electronic communications of any kind, and internet communications;\nprovided, however, that nothing contained in this Section 3 is intended to prohibit general advertising or general solicitation not\ndirected at such employees, general contractors, customers, business partners, or joint venturers.\n4. Confidential Information.\na. Confidentiality. During and after the Term, each Director shall not at any time, directly or indirectly, divulge, reveal, or\ncommunicate any Confidential Information of FNB, First National Bank, GBCI or GBCI’s subsidiaries, divisions, or\naffiliates obtained by the Director while serving as a director of FNB and/or First National Bank (or, if applicable, as a\npost-Merger member of the Advisory Board) to any person or use any Confidential Information for his or her own benefit or\nfor the benefit of any other person. For purposes of this Agreement, “Confidential Information” includes all secrets and\nother confidential information, knowledge, know-how, sales, financial information, customers, lists of customers and\nprospective customers, broker lists, rate sheets, strategies, or products, as well as all documents, reports, and proposals\nrelating to the same, with respect to FNB, First National Bank, GBCI, or GBCI’s subsidiaries, divisions, or affiliates.\nNotwithstanding the foregoing, “Confidential Information” does not include (i) information that is or becomes generally\n-2-\navailable to the public other than as a result of an unauthorized disclosure by the Director, (ii) information that was in the\nDirector’s possession prior to serving as a director of FNB and/or First National Bank or information received by the\nDirector from another person without any limitations on disclosure, but only if the Director had no reason to believe the\nother person was prohibited from using or disclosing the information by contractual or fiduciary obligation, or\n(iii) information that was independently developed by the Director without using any Confidential Information of FNB,\nFirst National Bank, GBCI, or GBCI’s subsidiaries, divisions, or affiliates.\nb. Defend Trade Secrets Act. Pursuant to the Defend Trade Secrets Act of 2016, 18 U.S .C . § 1833(b), a Director will not be\nheld criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made\n(i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for\nthe purpose of reporting or investigating a suspected violation of law, or (ii) is made in a complaint or other document filed\nin a proceeding, if such filing is made under seal.\nc. Legally Required Disclosures. Notwithstanding any provision of this Agreement to the contrary, a Director may disclose or\nreveal any information, whether including in whole or in part any Confidential Information, that such Director is required to\ndisclose or reveal under any applicable law or is otherwise required to disclose or reveal by any governmental authority (by\noral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand, or other similar process); provided, however, that such Director makes a good faith request that the confidentiality\nof the Confidential Information be preserved and, to the extent not prohibited by applicable law, gives GBCI prompt notice\nof such requirement in advance of such disclosure and exercises reasonable efforts to preserve the confidentiality of such\nConfidential Information, including, without limitation, by reasonably cooperating with GBCI to obtain an appropriate\nprotective order or other reliable assurance that confidential treatment will be accorded to such Confidential Information by\nthe governmental authority or other recipient of the Confidential Information. If, in the absence of a protective order (or\nother reliable assurance) or the receipt of a written waiver from GBCI, the Director is nonetheless legally compelled to\ndisclose Confidential Information to a governmental authority, the Director may disclose to such governmental authority\nonly that portion of the Confidential Information which is legally required to be disclosed.\n5. Outside Covered Area; Requests for Consent. Nothing in this Agreement prevents a Director from becoming involved with,\nas a shareholder, member, partner, director, officer, manager, investor, organizer, founder, employee, consultant, agent,\nrepresentative, or otherwise, a financial institution that has no operations in the Covered Area. During the Term, prior to\nengaging in any manner in a Competing Business, a Director may request in writing that GBCI waive the restrictions set forth in\nthis Agreement with respect to a particular proposed activity. If GBCI determines, in its sole discretion, that such activity is\nacceptable, GBCI may provide such Director with written consent to engage in such activity, and such activity will thereafter not\nbe deemed a Competing Business.\n-3-\n6. Passive Interest. Notwithstanding anything to the contrary contained herein, nothing in this Agreement will prevent a Director\nfrom owning two percent (2%) or less of any class of security of a Competing Business.\n7. Miscellaneous.\na. Individual Obligations. The obligations of each of the signatories to this Agreement are independent of one another and are\nnot intended to be joint obligations of the undersigned. This Agreement is intended to be enforceable by GBCI and/or\nGlacier Bank against each Director individually.\nb. Severability. If any provision of this Agreement or the application of such provision to any person or circumstances will be\nheld invalid or unenforceable by a court of competent jurisdiction, such provision or application will be unenforceable only\nto the extent of such invalidity or unenforceability, and the remainder of the provision held invalid or unenforceable and the\napplication of such provision to persons or circumstances, other than the party as to which it is held invalid, and the\nremainder of this Agreement, will not be affected.\nc. Reformation. If any court determines that the obligations and restrictions set forth in this Agreement are unenforceable, then\nthe parties request such court to reform any unenforceable provisions to the maximum obligations or restrictions, term, and\nscope, as applicable, that such court finds enforceable.\nd. Expenses. Except as otherwise may be agreed in writing, all costs, fees, and expenses incurred in connection with this\nAgreement and the transactions contemplated hereby shall be paid by the party incurring such costs, fees, and expenses.\ne. Amendments; Waivers. Any provision of this Agreement may be amended or waived if, and only if, such amendment or\nwaiver is in writing and signed (i) in the case of an amendment, by GBCI and the Director to be bound by such amendment,\nand (ii) in the case of a waiver, by the party against whom the waiver is to be effective. No failure or delay by any party in\nexercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege.\nf. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Utah,\nexcept to the extent that federal law may govern certain matters.\n-4-\ng. Remedies. Any breach of this Agreement by a Director will entitle GBCI and/or Glacier Bank, together with their\nsuccessors and assigns, to injunctive relief and/or specific performance, as well as to any other legal or equitable remedies it\nmay be entitled to, it being agreed that money damages alone would be an inadequate remedy for such breach. The rights\nand remedies of the parties to this Agreement are cumulative and not alternative.\nh. Counterparts. This Agreement may be executed in one or more counterparts, including facsimile and/or scanned\ncounterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same\ndocument.\n[Signatures appear on the following pages]\n-5-\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nGLACIER BANCORP, INC.\nFNB BANCORP\nBy:Randall M. Chesler\nBy:K. John Jones\nIts:President and CEO\nIts:President and CEO\nGLACIER BANK\nTHE FIRST NATIONAL\nBANK OF LAYTON\nBy:Randall M. Chesler\nBy:K. John Jones\nIts:President and CEO\nIts:President and CEO\n[Director signatures appear on the following pages]\n[Signature Page to Non-Competition, Non-Solicitation, and Confidentiality Agreement]\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nDIRECTOR:\n[Director Signature Page to Non–Competition, Non–Solicitation, and Confidentiality Agreement]
9c945db7f1dc0702f98a1e2b4dad7adc.pdf	effective_date jurisdiction party term	EX-99.(D)(9) 16 dex99d9.htm MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (d)(9)\nPROJECT ATHENS\nCONFIDENTIAL\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this “Agreement”) by and between Raytheon Company, a Delaware corporation, including on behalf\nof its subsidiaries, and Applied Signal Technology, Inc., a California corporation, including on behalf of its subsidiaries (each a “Party” and\ncollectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto.\n1. General. In connection with the consideration of a possible transaction (a “Possible Transaction”) between the Parties, each Party (in its\ncapacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Party (in its capacity as a recipient of\ninformation hereunder, a “Recipient”) certain Evaluation Material (as defined in Section 2 below) in accordance with the provisions of this\nAgreement, and to take or abstain from taking certain other actions as hereinafter set forth.\n2. Definitions.\n(a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its\nRepresentatives (as defined below) in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial\ncondition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared\nby the Recipient or its Representatives which contain or are based upon, in whole or in part, the information furnished by the Provider\nhereunder. The term Evaluation Material does not include information which (i) is or becomes publicly available other than as a result of a\ndisclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being\nfurnished to the Recipient by or on behalf of the Provider, (iii) is or becomes available to the Recipient on a non-confidential basis from a\nsource other than the Provider or its Representatives, (iv) Recipient can reasonably show was independently developed by the Recipient or the\nRecipient’s Representatives without the use of or reference to any Evaluation Material provided by or on behalf of Provider or its\nRepresentatives or (v) is intentionally released by Provider to a third party without any restriction as to use or disclosure.\n(b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without\nlimitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable.\n(c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity.\n3. Use of Evaluation Material. Each Recipient shall use the Evaluation Material solely for the purpose of evaluating a Possible Transaction\nand, subject to Section 5, will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such\ninformation may be disclosed to the Recipient’s Representatives for the purpose of helping the Recipient evaluate a Possible Transaction.\n4. Non-Disclosure of Discussions. Subject to Section 5, each Party agrees that, without the prior written consent of the other Party, such Party\nwill not, and will instruct its Representative not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Parties,\n(ii) that discussions or negotiations are taking place between the Parties concerning a Possible Transaction or\n(iii) any of the terms, conditions or other facts with respect thereto (including the status thereof); provided, however, that nothing contained herein\nshall be deemed to inhibit, impair or restrict the ability of Recipient or its Representatives from having discussions or negotiations with other persons\nrelating to potential financing in connection with the Possible Transaction so long as each of such Persons agrees in writing to be bound by the terms\nof this Agreement. Each Party shall be responsible for any breach of this Agreement by any of its Representatives.\n5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests\nfor information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation\nMaterial or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall, unless it is advised in good faith by its\ncounsel that it is not legally permitted to do so, provide the Provider with prompt written notice of any such request or requirement. If, in the absence\nof a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or any of its Representatives is advised in good faith by\nits counsel that it is nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under\nSection 4, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such\nEvaluation Material or any such facts which the Recipient or its Representatives is advised in good faith by its counsel is legally required to be\ndisclosed.\n6. Termination of Discussions. If either Party decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the\nother Party of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, promptly after receipt of such\nnotice or request, destroy all Evaluation Material in any way relating to the Provider or its products, services, employees or other assets or liabilities,\nand no copy or extract thereof (including electronic copies) shall be retained. Notwithstanding the foregoing, (i) a Recipient shall not be required to\ndelete, erase or destroy any Evaluation Material contained in an archived computer backup system stored as a result of automated back-up\nprocedures, and (ii) a Recipient may retain one copy of the Evaluation Material in its Office of the General Counsel solely for record-keeping\npurposes. The Recipient shall provide to the Provider a certificate of compliance with this provision. Notwithstanding the destruction or retention of\nthe Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to\nsuch Evaluation Material.\n7. No Solicitation. Each Recipient agrees that, for eighteen months from the date of this Agreement, no person in its organization who receives\nor has access to the Evaluation Material or has knowledge about the Possible Transaction will, directly or indirectly, solicit, or cause the soliciting of,\nor assist or encourage others in the soliciting of, the employment or consulting services of any of the officers of a Provider or any of its subsidiaries\nor employees engaged in research and development for Provider or any of its subsidiaries or any other employee of the Provider or any if its\nsubsidiaries with whom the Recipient has had contact in connection with its evaluation of a Possible Transaction or of whom it has become aware as\na result of its receipt of any Evaluation Material, so long as they are employed by the Provider or any of its subsidiaries and for two months\nthereafter (each, a “Covered Employee”). A Recipient is not prohibited from: (i) soliciting by means of a general advertisement not directed at any\nparticular individual or the employees of the Provider or its subsidiaries generally, or (ii) engaging any recruiting firm or similar organization to\nidentify or solicit individuals for employment on behalf of such Recipient (and soliciting any person identified by any such recruiting firm or\norganization) so long as such Recipient does not identify the individuals to be solicited by such recruiting firm or organization. The provisions of this\nSection 7 shall terminate and be of no further effect with respect to the Covered Employees upon the acquisition of such Provider by a third party.\n2\n8. Standstill. Each Party agrees that, for a period of eighteen (18) months from the date of this Agreement (the “Standstill Period”), unless\nspecifically invited in writing by the other Party, neither it nor any of its majority-owned subsidiaries will in any manner, directly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way intentionally assist any\nother Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Party or any of its subsidiaries,\n(ii) any tender or exchange offer, merger or other business combination involving the other Party or any of its subsidiaries,\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party\nor any of its subsidiaries, or\n(iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents to vote any voting securities of the other Party;\n(b) form, join or in any way participate in a “group” (as defined under the Securities Exchange Act of 1934, as amended) with respect to\nthe securities of the other Party;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without conditions), any\nextraordinary transaction involving the other Party or its securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to change or influence the control of the management, Board of Directors or\npolicies of the other Party;\n(e) take any action which might force the other Party to make a public announcement regarding any of the types of matters set forth in\n(a) above; or\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Party also agrees during\nsuch period not to request the other Party (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any\nprovision of this paragraph (including this sentence).\nNotwithstanding anything in this Section 8 to the contrary, if, at any time during the Standstill Period, (A) an announcement is made by a\nProvider or any other person (other than the Recipient or its Representatives) that a third party (other than the Recipient or its Representatives) is or\nmay be interested in acquiring at least twenty percent (20%) of the outstanding capital stock of the Provider, voting control or a material part of the\nProvider’s assets (by way of a tender offer, exchange offer, proxy contest, acquisition or other similar transaction), or (B) a definitive agreement is\nexecuted by the Provider with a third party relating to such an acquisition of capital stock or assets, the restrictions set forth in this Section 8 shall\nimmediately terminate and cease to be of any further effect on the Recipient.\n3\nNotwithstanding any other provision of this Section 8, nothing in this Agreement shall prohibit or otherwise restrict a Recipient’s ability, either\ndirectly or through its Representative(s), to make any confidential proposal or offer, or to negotiate a confidential proposal or offer, with respect to a\nProvider to, or through, the Provider’s Board of Directors, the Chairman of the Board, the Chief Executive Officer, or any other officer of the\nProvider authorized by any of the foregoing to discuss offers or proposals (a “Permitted Proposal”), so long as the Permitted Proposal and\nnegotiations related to a Permitted Proposal are not made public by the Recipient or its Representatives in violation of this Agreement. Further, the\nParties agree that the (a) restrictions in this Agreement shall not prevent (i) any pension plan related to a Recipient or its subsidiaries from acquiring,\nor offering to acquire, securities of a Provider at any time or (ii) a Recipient’s financial advisors from engaging in ordinary course brokerage or other\ntransactions involving the securities of a Provider at any time to the extent such transactions are executed by or on behalf of customers other than\nsuch Recipient or its subsidiaries.\n9. Compliance with Securities Laws. Each Recipient agrees not to use any Evaluation Material of the Provider in violation of applicable\nsecurities laws.\n10. Not a Transaction Agreement. Each Party understands and agrees that no contract or agreement providing for a Possible Transaction exists\nbetween the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered by both Parties. Each\nParty also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Party\nwill be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the\nmatters specifically agreed to herein. Neither Party is under any obligation to accept any proposal regarding a Possible Transaction, and either Party\nmay terminate discussions and negotiations with the other Party at any time.\n11. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of\nthe other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either\nParty in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude\nany other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n12. Remedies. Each Party understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by\neither Party or any of its Representatives and that the Party against which such breach is committed shall be entitled to seek equitable relief,\nincluding injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the\nexclusive remedies for a breach by either Party of this Agreement, but shall be in addition to all other remedies available at law or equity to the Party\nagainst which such breach is committed.\n13. Governing Law. This Agreement is for the benefit of each Party and shall be governed by and construed in accordance with the laws of\nCalifornia applicable to agreements made and to be performed entirely within such state.\n14. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be\ninvalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force\nand effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its\nextent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority making that determination shall only\nmodify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all\npurposes of this Agreement.\n4\n15. Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent\nor interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise\nfavoring or disfavoring either Party by virtue of the authorship at any of the provisions of this Agreement.\n16. Term. This Agreement shall terminate two years after the date hereof.\n17. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter.\n18. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together shall be\ndeemed to constitute a single instrument.\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of\nthe date written below.\nRAYTHEON COMPANY\nAPPLIED SIGNAL TECHNOLOGY, INC.\nBy: /s/ Kathryn G. Simpson\nBy: /s/ William B. Van Vleet\nName: Kathryn G. Simpson\nName: William Van Vleet\nTitle: Vice President, Legal – Corporate\nTransactions and Governance\nTitle: Chief Executive Officer, President\nand Director\nDate: October 19, 2010\nDate: October 19, 2010\n5	EX-99.(D)(9) 16 dex99d9.htm MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (d)(9)\nPROJECT ATHENS\nCONFIDENTIAL\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this “Agreement”) by and between Raytheon Company, a Delaware corporation, including on behalf\nof its subsidiaries, and Applied Signal Technology, Inc., a California corporation, including on behalf of its subsidiaries (each a “Party” and\ncollectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto.\n1. General. In connection with the consideration of a possible transaction (a “Possible Transaction”) between the Parties, each Party (in its\ncapacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Party (in its capacity as a recipient of\ninformation hereunder, a “Recipient”) certain Evaluation Material (as defined in Section 2 below) in accordance with the provisions of this\nAgreement, and to take or abstain from taking certain other actions as hereinafter set forth.\n2. Definitions.\n(a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its\nRepresentatives (as defined below) in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial\ncondition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared\nby the Recipient or its Representatives which contain or are based upon, in whole or in part, the information furnished by the Provider\nhereunder. The term Evaluation Material does not include information which (i) is or becomes publicly available other than as a result of a\ndisclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being\nfurnished to the Recipient by or on behalf of the Provider, (iii) is or becomes available to the Recipient on a non-confidential basis from a\nsource other than the Provider or its Representatives, (iv) Recipient can reasonably show was independently developed by the Recipient or the\nRecipient’s Representatives without the use of or reference to any Evaluation Material provided by or on behalf of Provider or its\nRepresentatives or (v) is intentionally released by Provider to a third party without any restriction as to use or disclosure.\n(b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without\nlimitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable.\n(c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity.\n3. Use of Evaluation Material. Each Recipient shall use the Evaluation Material solely for the purpose of evaluating a Possible Transaction\nand, subject to Section 5, will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such\ninformation may be disclosed to the Recipient’s Representatives for the purpose of helping the Recipient evaluate a Possible Transaction.\n4. Non-Disclosure of Discussions. Subject to Section 5, each Party agrees that, without the prior written consent of the other Party, such Party\nwill not, and will instruct its Representative not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Parties,\n(ii) that discussions or negotiations are taking place between the Parties concerning a Possible Transaction or\n(iii) any of the terms, conditions or other facts with respect thereto (including the status thereof); provided, however, that nothing contained herein\nshall be deemed to inhibit, impair or restrict the ability of Recipient or its Representatives from having discussions or negotiations with other persons\nrelating to potential financing in connection with the Possible Transaction so long as each of such Persons agrees in writing to be bound by the terms\nof this Agreement. Each Party shall be responsible for any breach of this Agreement by any of its Representatives.\n5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests\nfor information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation\nMaterial or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall, unless it is advised in good faith by its\ncounsel that it is not legally permitted to do so, provide the Provider with prompt written notice of any such request or requirement. If, in the absence\nof a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or any of its Representatives is advised in good faith by\nits counsel that it is nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under\nSection 4, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such\nEvaluation Material or any such facts which the Recipient or its Representatives is advised in good faith by its counsel is legally required to be\ndisclosed.\n6. Termination of Discussions. If either Party decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the\nother Party of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, promptly after receipt of such\nnotice or request, destroy all Evaluation Material in any way relating to the Provider or its products, services, employees or other assets or liabilities,\nand no copy or extract thereof (including electronic copies) shall be retained. Notwithstanding the foregoing, (i) a Recipient shall not be required to\ndelete, erase or destroy any Evaluation Material contained in an archived computer backup system stored as a result of automated back-up\nprocedures, and (ii) a Recipient may retain one copy of the Evaluation Material in its Office of the General Counsel solely for record-keeping\npurposes. The Recipient shall provide to the Provider a certificate of compliance with this provision. Notwithstanding the destruction or retention of\nthe Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to\nsuch Evaluation Material.\n7. No Solicitation. Each Recipient agrees that, for eighteen months from the date of this Agreement, no person in its organization who receives\nor has access to the Evaluation Material or has knowledge about the Possible Transaction will, directly or indirectly, solicit, or cause the soliciting of,\nor assist or encourage others in the soliciting of, the employment or consulting services of any of the officers of a Provider or any of its subsidiaries\nor employees engaged in research and development for Provider or any of its subsidiaries or any other employee of the Provider or any if its\nsubsidiaries with whom the Recipient has had contact in connection with its evaluation of a Possible Transaction or of whom it has become aware as\na result of its receipt of any Evaluation Material, so long as they are employed by the Provider or any of its subsidiaries and for two months\nthereafter (each, a “Covered Employee”). A Recipient is not prohibited from: (i) soliciting by means of a general advertisement not directed at any\nparticular individual or the employees of the Provider or its subsidiaries generally, or (ii) engaging any recruiting firm or similar organization to\nidentify or solicit individuals for employment on behalf of such Recipient (and soliciting any person identified by any such recruiting firm or\norganization) so long as such Recipient does not identify the individuals to be solicited by such recruiting firm or organization. The provisions of this\nSection 7 shall terminate and be of no further effect with respect to the Covered Employees upon the acquisition of such Provider by a third party.\n2\n8. Standstill. Each Party agrees that, for a period of eighteen (18) months from the date of this Agreement (the “Standstill Period”), unless\nspecifically invited in writing by the other Party, neither it nor any of its majority-owned subsidiaries will in any manner, directly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way intentionally assist any\nother Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Party or any of its subsidiaries,\n(ii) any tender or exchange offer, merger or other business combination involving the other Party or any of its subsidiaries,\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party\nor any of its subsidiaries, or\n(iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents to vote any voting securities of the other Party;\n(b) form, join or in any way participate in a “group” (as defined under the Securities Exchange Act of 1934, as amended) with respect to\nthe securities of the other Party;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without conditions), any\nextraordinary transaction involving the other Party or its securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to change or influence the control of the management, Board of Directors or\npolicies of the other Party;\n(e) take any action which might force the other Party to make a public announcement regarding any of the types of matters set forth in\n(a) above; or\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Party also agrees during\nsuch period not to request the other Party (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any\nprovision of this paragraph (including this sentence).\nNotwithstanding anything in this Section 8 to the contrary, if, at any time during the Standstill Period, (A) an announcement is made by a\nProvider or any other person (other than the Recipient or its Representatives) that a third party (other than the Recipient or its Representatives) is or\nmay be interested in acquiring at least twenty percent (20%) of the outstanding capital stock of the Provider, voting control or a material part of the\nProvider’s assets (by way of a tender offer, exchange offer, proxy contest, acquisition or other similar transaction), or (B) a definitive agreement is\nexecuted by the Provider with a third party relating to such an acquisition of capital stock or assets, the restrictions set forth in this Section 8 shall\nimmediately terminate and cease to be of any further effect on the Recipient.\n3\nNotwithstanding any other provision of this Section 8, nothing in this Agreement shall prohibit or otherwise restrict a Recipient’s ability, either\ndirectly or through its Representative(s), to make any confidential proposal or offer, or to negotiate a confidential proposal or offer, with respect to a\nProvider to, or through, the Provider’s Board of Directors, the Chairman of the Board, the Chief Executive Officer, or any other officer of the\nProvider authorized by any of the foregoing to discuss offers or proposals (a “Permitted Proposal”), so long as the Permitted Proposal and\nnegotiations related to a Permitted Proposal are not made public by the Recipient or its Representatives in violation of this Agreement. Further, the\nParties agree that the (a) restrictions in this Agreement shall not prevent (i) any pension plan related to a Recipient or its subsidiaries from acquiring,\nor offering to acquire, securities of a Provider at any time or (ii) a Recipient’s financial advisors from engaging in ordinary course brokerage or other\ntransactions involving the securities of a Provider at any time to the extent such transactions are executed by or on behalf of customers other than\nsuch Recipient or its subsidiaries.\n9. Compliance with Securities Laws. Each Recipient agrees not to use any Evaluation Material of the Provider in violation of applicable\nsecurities laws.\n10. Not a Transaction Agreement. Each Party understands and agrees that no contract or agreement providing for a Possible Transaction exists\nbetween the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered by both Parties. Each\nParty also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Party\nwill be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the\nmatters specifically agreed to herein. Neither Party is under any obligation to accept any proposal regarding a Possible Transaction, and either Party\nmay terminate discussions and negotiations with the other Party at any time.\n11. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of\nthe other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either\nParty in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude\nany other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n12. Remedies. Each Party understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by\neither Party or any of its Representatives and that the Party against which such breach is committed shall be entitled to seek equitable relief,\nincluding injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the\nexclusive remedies for a breach by either Party of this Agreement, but shall be in addition to all other remedies available at law or equity to the Party\nagainst which such breach is committed.\n13. Governing Law. This Agreement is for the benefit of each Party and shall be governed by and construed in accordance with the laws of\nCalifornia applicable to agreements made and to be performed entirely within such state.\n14. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be\ninvalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force\nand effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its\nextent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority making that determination shall only\nmodify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all\npurposes of this Agreement.\n15. Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent\nor interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise\nfavoring or disfavoring either Party by virtue of the authorship at any of the provisions of this Agreement.\n16. Term. This Agreement shall terminate two years after the date hereof.\n17. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter.\n18. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together shall be\ndeemed to constitute a single instrument.\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of\nthe date written below.\nRAYTHEON COMPANY APPLIED SIGNAL TECHNOLOGY, INC.\nBy: /s/ Kathryn G. Simpson By: /s/ William B. Van Vleet\nName: Kathryn G. Simpson Name: William Van Vleet\nTitle: Vice President, Legal — Corporate Title: Chief Executive Officer, President\nTransactions and Governance and Director\nDate: October 19, 2010 Date: October 19, 2010	EX-99.(D)(9) 16 dex99d9.htm MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (d)(9)\nPROJECT ATHENS\nCONFIDENTIAL\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this "Agreement") by and between Raytheon Company, a Delaware corporation, including on behalf\nof its subsidiaries, and Applied Signal Technology, Inc., a California corporation, including on behalf of its subsidiaries (each a "Party" and\ncollectively, the "Parties"), is dated as of the latest date set forth on the signature page hereto.\n1. General. In connection with the consideration of a possible transaction (a "Possible Transaction") between the Parties, each Party (in its\ncapacity as a provider of information hereunder, a "Provider") is prepared to make available to the other Party (in its capacity as a recipient of\ninformation hereunder, a "Recipient") certain Evaluation Material (as defined in Section 2 below) in accordance with the provisions of this\nAgreement, and to take or abstain from taking certain other actions as hereinafter set forth.\n2. Definitions.\n(a) The term "Evaluation Material" means information concerning the Provider which has been or is furnished to the Recipient or\nits\nRepresentatives (as defined below) in connection with the Recipient's evaluation of a Possible Transaction, including its business, financial\ncondition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared\nby the Recipient or its Representatives which contain or are based upon, in whole or in part, the information furnished by the Provider\nhereunder. The term Evaluation Material does not include information which (i) is or becomes publicly available other than as a result of\na\ndisclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient's possession prior to its being\nfurnished to the Recipient by or on behalf of the Provider, (iii) is or becomes available to the Recipient on a non-confidential basis from a\nsource other than the Provider or its Representatives, (iv) Recipient can reasonably show was independently developed by the Recipient or the\nRecipient's Representatives without the use of or reference to any Evaluation Material provided by or on behalf of Provider or its\nRepresentatives or (v) is intentionally released by Provider to a third party without any restriction as to use or disclosure.\n(b) The term "Representatives" shall include the directors, officers, employees, agents, partners or advisors (including, without\nlimitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable.\n(c) The term "Person" includes the media and any corporation, partnership, group, individual or other entity.\n3. Use of Evaluation Material. Each Recipient shall use the Evaluation Material solely for the purpose of evaluating a Possible Transaction\nand, subject to Section 5, will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such\ninformation may be disclosed to the Recipient's Representatives for the purpose of helping the Recipient evaluate a Possible Transaction.\n4. Non-Disclosure of Discussions. Subject to Section 5, each Party agrees that, without the prior written consent of the other Party, such Party\nwill not, and will instruct its Representative not to, disclose to any other Person (i) that Evaluation Material has been exchanged between\nthe\nParties,\n(ii) that discussions or negotiations are taking place between the Parties concerning a Possible Transaction or\n(iii) any of the terms, conditions or other facts with respect thereto (including the status thereof); provided, however, that nothing contained herein\nshall be deemed to inhibit, impair or restrict the ability of Recipient or its Representatives from having discussions or negotiations with other persons\nrelating to potential financing in connection with the Possible Transaction so long as each of such Persons agrees in writing to be bound by the terms\nof this Agreement. Each Party shall be responsible for any breach of this Agreement by any of its Representatives.\n5.\nLegally\nRequired\nDisclosure.\nIf\na\nRecipient\nor\nits\nRepresentatives\nare\nrequested\nor\nrequired\n(by\noral\nquestions,\ninterrogatories,\nother\nrequests\nfor information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation\nMaterial or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall, unless it is advised in good faith by its\ncounsel that it is not legally permitted to do so, provide the Provider with prompt written notice of any such request or requirement. If, in the absence\nof a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or any of its Representatives is advised in good faith by\nits counsel that it is nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under\nSection 4, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such\nEvaluation Material or any such facts which the Recipient or its Representatives is advised in good faith by its counsel is legally required to be\ndisclosed.\n6.\nTermination of Discussions. If either Party decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the\nother Party of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, promptly after receipt of such\nnotice or request, destroy all Evaluation Material in any way relating to the Provider or its products, services, employees or other assets or liabilities,\nand no copy or extract thereof (including electronic copies) shall be retained. Notwithstanding the foregoing, (i) a Recipient shall not be required to\ndelete, erase or destroy any Evaluation Material contained in an archived computer backup system stored as a result of automated back-up\nprocedures, and (ii) a Recipient may retain one copy of the Evaluation Material in its Office of the General Counsel solely for record-keeping\npurposes. The Recipient shall provide to the Provider a certificate of compliance with this provision. Notwithstanding the destruction or retention\nof\nthe Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient's obligations hereunder with respect\nto\nsuch Evaluation Material.\n7. No Solicitation. Each Recipient agrees that, for eighteen months from the date of this Agreement, no person in its organization who receives\nor has access to the Evaluation Material or has knowledge about the Possible Transaction will, directly or indirectly, solicit, or cause the soliciting of,\nor assist or encourage others in the soliciting of, the employment or consulting services of any of the officers of a Provider or any of its subsidiaries\nor employees engaged in research and development for Provider or any of its subsidiaries or any other employee of the Provider or any if its\nsubsidiaries with whom the Recipient has had contact in connection with its evaluation of a Possible Transaction or of whom it has become aware\nas\na result of its receipt of any Evaluation Material, so long as they are employed by the Provider or any of its subsidiaries and for two months\nthereafter (each, a "Covered Employee"). A Recipient is not prohibited from: (i) soliciting by means of a general advertisement not directed at any\nparticular individual or the employees of the Provider or its subsidiaries generally, or (ii) engaging any recruiting firm or similar organization\nto\nidentify or solicit individuals for employment on behalf of such Recipient (and soliciting any person identified by any such recruiting firm or\norganization) so long as such Recipient does not identify the individuals to be solicited by such recruiting firm or organization. The provisions of this\nSection 7 shall terminate and be of no further effect with respect to the Covered Employees upon the acquisition of such Provider by a third party.\n2\n8. Standstill. Each Party agrees that, for a period of eighteen (18) months from the date of this Agreement (the "Standstill Period"), unless\nspecifically invited in writing by the other Party, neither it nor any of its majority-owned subsidiaries will in any manner, directly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way intentionally assist any\nother Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Party or any of its subsidiaries,\n(ii)\nany tender or exchange offer, merger or other business combination involving the other Party or any of its subsidiaries,\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party\nor any of its subsidiaries, or\n(iv)\nany "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents to vote any voting securities of the other Party;\n(b) form, join or in any way participate in a "group" (as defined under the Securities Exchange Act of 1934, as amended) with respect to\nthe securities of the other Party;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without conditions), any\nextraordinary transaction involving the other Party or its securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to change or influence the control of the management, Board of Directors or\npolicies of the other Party;\n(e) take any action which might force the other Party to make a public announcement regarding any of the types of matters set forth in\n(a) above; or\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Party also agrees during\nsuch period not to request the other Party (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any\nprovision of this paragraph (including this sentence).\nNotwithstanding anything in this Section 8 to the contrary, if, at any time during the Standstill Period, (A) an announcement is made by\na\nProvider or any other person (other than the Recipient or its Representatives) that a third party (other than the Recipient or its Representatives) is or\nmay be interested in acquiring at least twenty percent (20%) of the outstanding capital stock of the Provider, voting control or a material part of the\nProvider's assets (by way of a tender offer, exchange offer, proxy contest, acquisition or other similar transaction), or (B) a definitive agreement is\nexecuted by the Provider with a third party relating to such an acquisition of capital stock or assets, the restrictions set forth in this Section 8 shall\nimmediately terminate and cease to be of any further effect on the Recipient.\n3\nNotwithstanding any other provision of this Section 8, nothing in this Agreement shall prohibit or otherwise restrict a Recipient's ability, either\ndirectly or through its Representative(s), to make any confidential proposal or offer, or to negotiate a confidential proposal or offer, with respect to a\nProvider to, or through, the Provider's Board of Directors, the Chairman of the Board, the Chief Executive Officer, or any other officer of\nthe\nProvider authorized by any of the foregoing to discuss offers or proposals (a "Permitted Proposal"), so long as the Permitted Proposal and\nnegotiations related to a Permitted Proposal are not made public by the Recipient or its Representatives in violation of this Agreement. Further,\nthe\nParties agree that the (a) restrictions in this Agreement shall not prevent (i) any pension plan related to a Recipient or its subsidiaries from acquiring,\nor\noffering to acquire, securities of a Provider at any time or (ii) a Recipient's financial advisors from engaging in ordinary course brokerage or other\ntransactions involving the securities of a Provider at any time to the extent such transactions are executed by or on behalf of customers other than\nsuch Recipient or its subsidiaries.\n9. Compliance with Securities Laws. Each Recipient agrees not to use any Evaluation Material of the Provider in violation of applicable\nsecurities laws.\n10. Not a Transaction Agreement. Each Party understands and agrees that no contract or agreement providing for a Possible Transaction exists\nbetween the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered by both Parties. Each\nParty also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Party\nwill be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the\nmatters specifically agreed to herein. Neither Party is under any obligation to accept any proposal regarding a Possible Transaction, and either Party\nmay terminate discussions and negotiations with the other Party at any time.\n11.\nModifications\nand\nWaiver.\nNo\nprovision\nof\nthis\nAgreement\ncan\nbe\nwaived\nor\namended\nin\nfavor\nof\neither\nParty\nexcept\nby\nwritten\nconsent\nof\nthe other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either\nParty in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude\nany other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n12. Remedies. Each Party understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by\neither Party or any of its Representatives and that the Party against which such breach is committed shall be entitled to seek equitable relief,\nincluding injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the\nexclusive remedies for a breach by either Party of this Agreement, but shall be in addition to all other remedies available at law or equity to the Party\nagainst which such breach is committed.\n13. Governing Law. This Agreement is for the benefit of each Party and shall be governed by and construed in accordance with the laws of\nCalifornia applicable to agreements made and to be performed entirely within such state.\n14. Severability.. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be\ninvalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force\nand effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its\nextent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority making that determination shall only\nmodify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all\npurposes of this Agreement.\n4\n15. Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent\nor interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise\nfavoring or disfavoring either Party by virtue of the authorship at any of the provisions of this Agreement.\n16. Term. This Agreement shall terminate two years after the date hereof.\n17. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter.\n18. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together shall\nbe\ndeemed to constitute a single instrument.\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of\nthe date written below.\nRAYTHEON COMPANY\nAPPLIED SIGNAL TECHNOLOGY, INC.\nBy: /s/ Kathryn G. Simpson\nBy: /s/ William B. Van Vleet\nName: Kathryn G. Simpson\nName: William Van Vleet\nTitle: Vice President, Legal - Corporate\nTitle: Chief Executive Officer, President\nTransactions and Governance\nand Director\nDate: October 19, 2010\nDate: October 19, 2010\n5	EX-99.(D)(9) 16 dex99d9.htm MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (d)(9)\nPROJECT ATHENS\nCONFIDENTIAL\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this “Agreement”) by and between Raytheon Company, a Delaware corporation, including on behalf\nof its subsidiaries, and Applied Signal Technology, Inc., a California corporation, including on behalf of its subsidiaries (each a “Party” and\ncollectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto.\n1. General. In connection with the consideration of a possible transaction (a “Possible Transaction”) between the Parties, each Party (in its\ncapacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Party (in its capacity as a recipient of\ninformation hereunder, a “Recipient”) certain Evaluation Material (as defined in Section 2 below) in accordance with the provisions of this\nAgreement, and to take or abstain from taking certain other actions as hereinafter set forth.\n2. Definitions.\n(a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its\nRepresentatives (as defined below) in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial\ncondition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared\nby the Recipient or its Representatives which contain or are based upon, in whole or in part, the information furnished by the Provider\nhereunder. The term Evaluation Material does not include information which (i) is or becomes publicly available other than as a result of a\ndisclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being\nfurnished to the Recipient by or on behalf of the Provider, (iii) is or becomes available to the Recipient on a non-confidential basis from a\nsource other than the Provider or its Representatives, (iv) Recipient can reasonably show was independently developed by the Recipient or the\nRecipient’s Representatives without the use of or reference to any Evaluation Material provided by or on behalf of Provider or its\nRepresentatives or (v) is intentionally released by Provider to a third party without any restriction as to use or disclosure.\n(b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without\nlimitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable.\n(c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity.\n3. Use of Evaluation Material. Each Recipient shall use the Evaluation Material solely for the purpose of evaluating a Possible Transaction\nand, subject to Section 5, will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such\ninformation may be disclosed to the Recipient’s Representatives for the purpose of helping the Recipient evaluate a Possible Transaction.\n4. Non-Disclosure of Discussions. Subject to Section 5, each Party agrees that, without the prior written consent of the other Party, such Party\nwill not, and will instruct its Representative not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Parties,\n(ii) that discussions or negotiations are taking place between the Parties concerning a Possible Transaction or\n(iii) any of the terms, conditions or other facts with respect thereto (including the status thereof); provided, however, that nothing contained herein\nshall be deemed to inhibit, impair or restrict the ability of Recipient or its Representatives from having discussions or negotiations with other persons\nrelating to potential financing in connection with the Possible Transaction so long as each of such Persons agrees in writing to be bound by the terms\nof this Agreement. Each Party shall be responsible for any breach of this Agreement by any of its Representatives.\n5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests\nfor information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation\nMaterial or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall, unless it is advised in good faith by its\ncounsel that it is not legally permitted to do so, provide the Provider with prompt written notice of any such request or requirement. If, in the absence\nof a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or any of its Representatives is advised in good faith by\nits counsel that it is nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under\nSection 4, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such\nEvaluation Material or any such facts which the Recipient or its Representatives is advised in good faith by its counsel is legally required to be\ndisclosed.\n6. Termination of Discussions. If either Party decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the\nother Party of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, promptly after receipt of such\nnotice or request, destroy all Evaluation Material in any way relating to the Provider or its products, services, employees or other assets or liabilities,\nand no copy or extract thereof (including electronic copies) shall be retained. Notwithstanding the foregoing, (i) a Recipient shall not be required to\ndelete, erase or destroy any Evaluation Material contained in an archived computer backup system stored as a result of automated back-up\nprocedures, and (ii) a Recipient may retain one copy of the Evaluation Material in its Office of the General Counsel solely for record-keeping\npurposes. The Recipient shall provide to the Provider a certificate of compliance with this provision. Notwithstanding the destruction or retention of\nthe Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to\nsuch Evaluation Material.\n7. No Solicitation. Each Recipient agrees that, for eighteen months from the date of this Agreement, no person in its organization who receives\nor has access to the Evaluation Material or has knowledge about the Possible Transaction will, directly or indirectly, solicit, or cause the soliciting of,\nor assist or encourage others in the soliciting of, the employment or consulting services of any of the officers of a Provider or any of its subsidiaries\nor employees engaged in research and development for Provider or any of its subsidiaries or any other employee of the Provider or any if its\nsubsidiaries with whom the Recipient has had contact in connection with its evaluation of a Possible Transaction or of whom it has become aware as\na result of its receipt of any Evaluation Material, so long as they are employed by the Provider or any of its subsidiaries and for two months\nthereafter (each, a “Covered Employee”). A Recipient is not prohibited from: (i) soliciting by means of a general advertisement not directed at any\nparticular individual or the employees of the Provider or its subsidiaries generally, or (ii) engaging any recruiting firm or similar organization to\nidentify or solicit individuals for employment on behalf of such Recipient (and soliciting any person identified by any such recruiting firm or\norganization) so long as such Recipient does not identify the individuals to be solicited by such recruiting firm or organization. The provisions of this\nSection 7 shall terminate and be of no further effect with respect to the Covered Employees upon the acquisition of such Provider by a third party.\n2\n8. Standstill. Each Party agrees that, for a period of eighteen (18) months from the date of this Agreement (the “Standstill Period”), unless\nspecifically invited in writing by the other Party, neither it nor any of its majority-owned subsidiaries will in any manner, directly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way intentionally assist any\nother Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Party or any of its subsidiaries,\n(ii) any tender or exchange offer, merger or other business combination involving the other Party or any of its subsidiaries,\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party\nor any of its subsidiaries, or\n(iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents to vote any voting securities of the other Party;\n(b) form, join or in any way participate in a “group” (as defined under the Securities Exchange Act of 1934, as amended) with respect to\nthe securities of the other Party;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without conditions), any\nextraordinary transaction involving the other Party or its securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to change or influence the control of the management, Board of Directors or\npolicies of the other Party;\n(e) take any action which might force the other Party to make a public announcement regarding any of the types of matters set forth in\n(a) above; or\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Party also agrees during\nsuch period not to request the other Party (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any\nprovision of this paragraph (including this sentence).\nNotwithstanding anything in this Section 8 to the contrary, if, at any time during the Standstill Period, (A) an announcement is made by a\nProvider or any other person (other than the Recipient or its Representatives) that a third party (other than the Recipient or its Representatives) is or\nmay be interested in acquiring at least twenty percent (20%) of the outstanding capital stock of the Provider, voting control or a material part of the\nProvider’s assets (by way of a tender offer, exchange offer, proxy contest, acquisition or other similar transaction), or (B) a definitive agreement is\nexecuted by the Provider with a third party relating to such an acquisition of capital stock or assets, the restrictions set forth in this Section 8 shall\nimmediately terminate and cease to be of any further effect on the Recipient.\n3\nNotwithstanding any other provision of this Section 8, nothing in this Agreement shall prohibit or otherwise restrict a Recipient’s ability, either\ndirectly or through its Representative(s), to make any confidential proposal or offer, or to negotiate a confidential proposal or offer, with respect to a\nProvider to, or through, the Provider’s Board of Directors, the Chairman of the Board, the Chief Executive Officer, or any other officer of the\nProvider authorized by any of the foregoing to discuss offers or proposals (a “Permitted Proposal”), so long as the Permitted Proposal and\nnegotiations related to a Permitted Proposal are not made public by the Recipient or its Representatives in violation of this Agreement. Further, the\nParties agree that the (a) restrictions in this Agreement shall not prevent (i) any pension plan related to a Recipient or its subsidiaries from acquiring,\nor offering to acquire, securities of a Provider at any time or (ii) a Recipient’s financial advisors from engaging in ordinary course brokerage or other\ntransactions involving the securities of a Provider at any time to the extent such transactions are executed by or on behalf of customers other than\nsuch Recipient or its subsidiaries.\n9. Compliance with Securities Laws. Each Recipient agrees not to use any Evaluation Material of the Provider in violation of applicable\nsecurities laws.\n10. Not a Transaction Agreement. Each Party understands and agrees that no contract or agreement providing for a Possible Transaction exists\nbetween the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered by both Parties. Each\nParty also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Party\nwill be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the\nmatters specifically agreed to herein. Neither Party is under any obligation to accept any proposal regarding a Possible Transaction, and either Party\nmay terminate discussions and negotiations with the other Party at any time.\n11. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of\nthe other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either\nParty in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude\nany other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n12. Remedies. Each Party understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by\neither Party or any of its Representatives and that the Party against which such breach is committed shall be entitled to seek equitable relief,\nincluding injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the\nexclusive remedies for a breach by either Party of this Agreement, but shall be in addition to all other remedies available at law or equity to the Party\nagainst which such breach is committed.\n13. Governing Law. This Agreement is for the benefit of each Party and shall be governed by and construed in accordance with the laws of\nCalifornia applicable to agreements made and to be performed entirely within such state.\n14. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be\ninvalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force\nand effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its\nextent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority making that determination shall only\nmodify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all\npurposes of this Agreement.\n4\n15. Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent\nor interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise\nfavoring or disfavoring either Party by virtue of the authorship at any of the provisions of this Agreement.\n16. Term. This Agreement shall terminate two years after the date hereof.\n17. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter.\n18. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together shall be\ndeemed to constitute a single instrument.\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of\nthe date written below.\nRAYTHEON COMPANY\nAPPLIED SIGNAL TECHNOLOGY, INC.\nBy: /s/ Kathryn G. Simpson\nBy: /s/ William B. Van Vleet\nName: Kathryn G. Simpson\nName: William Van Vleet\nTitle: Vice President, Legal – Corporate\nTransactions and Governance\nTitle: Chief Executive Officer, President\nand Director\nDate: October 19, 2010\nDate: October 19, 2010\n5
9f9cc24e4dd83ea52e9108d59ec937aa.pdf	effective_date jurisdiction party term	EX-10 .4 2 exh10-4 .htm NON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE, AND WORKING AGREEMENT WITH\nMONNIT CORP.\nExhibit 10.4\nMonnit Corp. Logo.\nNON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE\nAND WORKING AGREEMENT\nThis Non-Circumvention, Non-Disclosure, Brokerage and Working Agreement (this “Agreement”) is made and entered\ninto by Monnit Corp., a Utah Corporation (“Monnit”) and iMetrik M2M Solutions Inc., a Nevada Corporation\n(“Receiving Party”) as of February 12, 2012.\nRECITALS\nWHEREAS, Monnit possesses certain information relating to third party business opportunities (“Business Sources”) not\nknown by Receiving Party;\nWHEREAS, the Receiving Party is interested in entering into business transactions with such Business Sources; and\nWHEREAS, Monnit and Receiving Party wish to enter into this agreement to define certain parameters of their future legal\nobligations.\nAGREEMENT\nNOW, THEREFORE, in consideration of mutual promises contained herein and other good and valuable considerations the\nreceipt and sufficiency of which is hereby acknowledged, the parties hereto mutually and voluntarily agree as follows:\n1.\nBusiness Source Identification. Monnit will identify certain Business Sources not known by Receiving Party\nwhich shall be set forth on Exhibit A, attached hereto and incorporated herein. Within 10 days of identifying a Business\nSource, Monnit shall amend Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to\nReceiving Party. The Receiving Party shall have 2 business days to object to the amendment to Exhibit A by providing\ndocumentation that evidences Receiving Party's prior relationship with the Business Source added to Exhibit A. If\nReceiving Party fails to object or provide evidence documenting Receiving Party's prior relationship with the Business\nSource, the revised Exhibit A shall be deemed automatically amended and incorporated into this Agreement.\n2.\nNon-Solicitation; Non-Circumvention. Neither the Receiving Party nor any of its agents shall, in any manner\naccess, contact, solicit or conduct any business with a Business Source that has been made available by and through\nMonnit. The Receiving Party shall not in any way whatsoever circumvent or attempt to circumvent Monnit and\nPage1of4\nMonnit Corp. Logo.\nshall not enter into direct or indirect offers, negotiations or transactions with a Business Source revealed by Monnit.\n2.\nNon-Disclosure. The parties shall maintain complete confidentiality regarding each other's business and/or their\naffiliates and shall only disclose information pertaining to the Business Sources as permitted by Monnit, unless agreed and\ngranted an expressed written permission of Monnit.\n3.\nBroker Relationship. The parties agree that Monnit is acting solely as a broker in bringing interested parties\ntogether to conduct business. As such, Monnit shall be entitled to compensation for such business. Compensation shall be\nnegotiated separately and through a subsequent agreement by the Receiving Party and Monnit. Both parties agree that any\nbusiness transaction(s) between the Receiving Party and those Business Sources provided by Monnit will not be conducted\nwithout the prior agreement of Monnit’s compensation for such business transaction(s).\n3.\nDamages. In the event of circumvention by any of the undersigned Parties, whether direct and/or indirect, the\ncircumvented Party shall be entitled to a legal monetary compensation equal to ten times the maximum service fees it\nwould have realized from such a transaction, plus any and all expenses, including any and all legal fees incurred in lieu of\nthe recovery of such compensation.\n4.\nTerm. This agreement is valid for five (5) years from the date of signature, for any and all transactions between the\nParties therein, with renewal to be agreed upon between the signatories.\n5.\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws of the State of Utah\napplicable to contracts executed and to be performed in the State of Utah with exception of its provisions regarding conflict\nof laws.\n7.\nBinding on Successors and Assigns. This Agreement shall be binding upon the Parties hereto and in the case of\nindividual parties, their respective heirs, administrators and executors and in the case of all corporate Parties, their\nsuccessors and assigns.\n8.\nAssignment. This Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one\nparty without the prior written consent of the other party. Any such attempt by one party without the prior written consent\nof the other party shall be void.\n9.\nEntire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior\nproposals, representations, negotiations and communications oral or written, with respect to the subject matter herein.\nPage2of4\nMonnit Corp. Logo.\n10. Counterparts. This agreement may be signed in one or more counterparts and the parties agree that facsimile\ncopies of this Agreement to be considered as one legal original and signatures thereon shall be legal and binding.\nAccepted and Agreed: On this 13 day of February, 2012.\nMONNIT CORP.\nRECEIVING PARTY\nBy:\nBy: MICHEL ST-PIERRE\nName:\nName: Michel St-Pierre\nIs:\nIts:\nPage3of4\nMonnit Corp. Logo.\nExhibit A\nWithin 10 days of identifying a Business Source, Monnit shall amend this Exhibit A to include such Business Source and\ndeliver a copy of the amended Exhibit A to Receiving Party.\nBusiness Source provided by Monnit:\n_________________________________________________________________________________\n_________________________________________________________________________________\n_________________________________________________________________________________\n_________________________________________________________________________________\nPage4of4	EX-10.4 2 exh10-4.htm NON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE, AND WORKING AGREEMENT WITH\nMONNIT CORP.\nExhibit 10.4\nl#.Monnit Corp. Logo.\nNON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE\nAND WORKING AGREEMENT\nThis Non-Circumvention, Non-Disclosure, Brokerage and Working Agreement (this “Agreement”) is made and entered\ninto by Monnit Corp., a Utah Corporation (“Monnit”) and iMetrik M2M Solutions Inc., a Nevada Corporation\n(“Receiving Party”) as of February 12, 2012.\nRECITALS\nWHEREAS, Monnit possesses certain information relating to third party business opportunities (“Business Sources”) not\nknown by Receiving Party;\nWHEREAS, the Receiving Party is interested in entering into business transactions with such Business Sources; and\nWHEREAS, Monnit and Receiving Party wish to enter into this agreement to define certain parameters of their future legal\nobligations.\nAGREEMENT\nNOW, THEREFORE, in consideration of mutual promises contained herein and other good and valuable considerations the\nreceipt and sufficiency of which is hereby acknowledged, the parties hereto mutually and voluntarily agree as follows:\n1. Business Source Identification. Monnit will identify certain Business Sources not known by Receiving Party\nwhich shall be set forth on Exhibit A, attached hereto and incorporated herein. Within 10 days of identifying a Business\nSource, Monnit shall amend Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to\nReceiving Party. The Receiving Party shall have 2 business days to object to the amendment to Exhibit A by providing\ndocumentation that evidences Receiving Party's prior relationship with the Business Source added to Exhibit A. If\nReceiving Party fails to object or provide evidence documenting Receiving Party's prior relationship with the Business\nSource, the revised Exhibit A shall be deemed automatically amended and incorporated into this Agreement.\n2. Non-Solicitation; Non-Circumvention. Neither the Receiving Party nor any of its agents shall, in any manner\naccess, contact, solicit or conduct any business with a Business Source that has been made available by and through\nMonnit. The Receiving Party shall not in any way whatsoever circuamvent or attempt to circumvent Monnit and\nPage 1 of 4\n \nl#.Monnit Corp. Logo.\nshall not enter into direct or indirect offers, negotiations or transactions with a Business Source revealed by Monnit.\n2. Non-Disclosure. The parties shall maintain complete confidentiality regarding each other's business and/or their\naffiliates and shall only disclose information pertaining to the Business Sources as permitted by Monnit, unless agreed and\ngranted an expressed written permission of Monnit.\n3. Broker Relationship. The parties agree that Monnit is acting solely as a broker in bringing interested parties\ntogether to conduct business. As such, Monnit shall be entitled to compensation for such business. Compensation shall be\nnegotiated separately and through a subsequent agreement by the Receiving Party and Monnit. Both parties agree that any\nbusiness transaction(s) between the Receiving Party and those Business Sources provided by Monnit will not be conducted\nwithout the prior agreement of Monnit’s compensation for such business transaction(s).\n3. Damages. In the event of circumvention by any of the undersigned Parties, whether direct and/or indirect, the\ncircumvented Party shall be entitled to a legal monetary compensation equal to ten times the maximum service fees it\nwould have realized from such a transaction, plus any and all expenses, including any and all legal fees incurred in lieu of\nthe recovery of such compensation.\n4. Term. This agreement is valid for five (5) years from the date of signature, for any and all transactions between the\nParties therein, with renewal to be agreed upon between the signatories.\n5. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Utah\napplicable to contracts executed and to be performed in the State of Utah with exception of its provisions regarding conflict\nof laws.\n7. Binding on Successors and Assigns. This Agreement shall be binding upon the Parties hereto and in the case of\nindividual parties, their respective heirs, administrators and executors and in the case of all corporate Parties, their\nsuccessors and assigns.\n8. Assignment. This Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one\nparty without the prior written consent of the other party. Any such attempt by one party without the prior written consent\nof the other party shall be void.\n9. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior\nproposals, representations, negotiations and communications oral or written, with respect to the subject matter herein.\nPage 2 of 4\n \nl#.Monnit Corp. Logo.\n10. Counterparts. This agreement may be signed in one or more counterparts and the parties agree that facsimile\ncopies of this Agreement to be considered as one legal original and signatures thereon shall be legal and binding.\nAccepted and Agreed: On this 13 day of February, 2012.\nMONNIT CORP. RECEIVING PARTY\nBy: By: MICHEL ST-PIERRE\nName: Name: Michel St-Pierre\nIs: Its:\nPage 3 of 4\n».Monnit Corp. Logo.\nExhibit A\nWithin 10 days of identifying a Business Source, Monnit shall amend this Exhibit A to include such Business Source and\ndeliver a copy of the amended Exhibit A to Receiving Party.\nBusiness Source provided by Monnit:\nPage 4 of 4	EX-10.4 2 exh10-4.htm NON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE, AND WORKING AGREEMENT WITH\nMONNIT CORP.\nExhibit 10.4\nMonnit Corp. Logo.\nNON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE\nAND WORKING AGREEMENT\nThis Non-Circumvention, Non-Disclosure, Brokerage and Working Agreement (this "Agreement") is made and entered\ninto by Monnit Corp., a Utah Corporation ("Monnit") and iMetrik M2M Solutions Inc., a Nevada Corporation\n("Receiving Party") as of February 12, 2012.\nRECITALS\nWHEREAS, Monnit possesses certain information relating to third party business opportunities ("Business Sources") not\nknown by Receiving Party;\nWHEREAS, the Receiving Party is interested in entering into business transactions with such Business Sources; and\nWHEREAS, Monnit and Receiving Party wish to enter into this agreement to define certain parameters of their future legal\nobligations.\nAGREEMENT\nNOW, THEREFORE, in consideration of mutual promises contained herein and other good and valuable considerations the\nreceipt and sufficiency of which is hereby acknowledged, the parties hereto mutually and voluntarily agree as follows:\n1.\nBusiness Source Identification. Monnit will identify certain Business Sources not known by Receiving Party\nwhich shall be set forth on Exhibit A, attached hereto and incorporated herein. Within 10 days of identifying a Business\nSource, Monnit shall amend Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to\nReceiving\nParty.\nThe\nReceiving\nParty\nshall\nhave\n2\nbusiness\ndays\nto\nobject\nto\nthe\namendment\nto\nExhibit\nA\nby\nproviding\ndocumentation that evidences Receiving Party's prior relationship with the Business Source added to Exhibit A. If\nReceiving Party fails to object or provide evidence documenting Receiving Party's prior relationship with the Business\nSource, the revised Exhibit A shall be deemed automatically amended and incorporated into this Agreement.\n2.\nNon-Solicitation; Non-Circumvention. Neither the Receiving Party nor any of its agents shall, in any manner\naccess, contact, solicit or conduct any business with a Business Source that has been made available by and through\nMonnit. The Receiving Party shall not in any way whatsoever circumvent or attempt to circumvent Monnit and\nPage 1 of 4\nMonnit Corp. Logo.\nshall not enter into direct or indirect offers, negotiations or transactions with a Business Source revealed by Monnit.\n2.\nNon-Disclosure. The parties shall maintain complete confidentiality regarding each other's business and/or their\naffiliates and shall only disclose information pertaining to the Business Sources as permitted by Monnit, unless agreed and\ngranted an expressed written permission of Monnit.\n3.\nBroker Relationship. The parties agree that Monnit is acting solely as a broker in bringing interested parties\ntogether to conduct business. As such, Monnit shall be entitled to compensation for such business. Compensation shall be\nnegotiated separately and through a subsequent agreement by the Receiving Party and Monnit. Both parties agree that any\nbusiness transaction(s) between the Receiving Party and those Business Sources provided by Monnit will not be conducted\nwithout the prior agreement of Monnit's compensation for such business transaction(s).\n3.\nDamages. In the event of circumvention by any of the undersigned Parties, whether direct and/or indirect, the\ncircumvented Party shall be entitled to a legal monetary compensation equal to ten times the maximum service fees it\nwould have realized from such a transaction, plus any and all expenses, including any and all legal fees incurred in lieu of\nthe recovery of such compensation.\n4.\nTerm. This agreement is valid for five (5) years from the date of signature, for any and all transactions between the\nParties therein, with renewal to be agreed upon between the signatories.\n5.\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws of the State of Utah\napplicable to contracts executed and to be performed in the State of Utah with exception of its provisions regarding conflict\nof laws.\n7.\nBinding on Successors and Assigns. This Agreement shall be binding upon the Parties hereto and in the case of\nindividual parties, their respective heirs, administrators and executors and in the case of all corporate Parties, their\nsuccessors and assigns.\n8.\nAssignment. This Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one\nparty without the prior written consent of the other party. Any such attempt by one party without the prior written consent\nof the other party shall be void.\n9.\nEntire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior\nproposals, representations, negotiations and communications oral or written, with respect to the subject matter herein.\nPage 2 of 4\nMonnit Corp. Logo.\n10.\nCounterparts. This agreement may be signed in one or more counterparts and the parties agree that facsimile\ncopies of this Agreement to be considered as one legal original and signatures thereon shall be legal and binding.\nAccepted and Agreed: On this 13 day of February, 2012.\nMONNIT CORP.\nRECEIVING PARTY\nBy:\nBy: MICHEL ST-PIERRE\nName:\nName: Michel St-Pierre\nIs:\nIts:\nPage 3 of 4\nMonnit Corp. Logo.\nExhibit A\nWithin 10 days of identifying a Business Source, Monnit shall amend this Exhibit A to include such Business Source and\ndeliver a copy of the amended Exhibit A to Receiving Party.\nBusiness Source provided by Monnit:\nPage 4 of 4	EX-10 .4 2 exh10-4 .htm NON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE, AND WORKING AGREEMENT WITH\nMONNIT CORP.\nExhibit 10.4\nMonnit Corp. Logo.\nNON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE\nAND WORKING AGREEMENT\nThis Non-Circumvention, Non-Disclosure, Brokerage and Working Agreement (this “Agreement”) is made and entered\ninto by Monnit Corp., a Utah Corporation (“Monnit”) and iMetrik M2M Solutions Inc., a Nevada Corporation\n(“Receiving Party”) as of February 12, 2012.\nRECITALS\nWHEREAS, Monnit possesses certain information relating to third party business opportunities (“Business Sources”) not\nknown by Receiving Party;\nWHEREAS, the Receiving Party is interested in entering into business transactions with such Business Sources; and\nWHEREAS, Monnit and Receiving Party wish to enter into this agreement to define certain parameters of their future legal\nobligations.\nAGREEMENT\nNOW, THEREFORE, in consideration of mutual promises contained herein and other good and valuable considerations the\nreceipt and sufficiency of which is hereby acknowledged, the parties hereto mutually and voluntarily agree as follows:\n1.\nBusiness Source Identification. Monnit will identify certain Business Sources not known by Receiving Party\nwhich shall be set forth on Exhibit A, attached hereto and incorporated herein. Within 10 days of identifying a Business\nSource, Monnit shall amend Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to\nReceiving Party. The Receiving Party shall have 2 business days to object to the amendment to Exhibit A by providing\ndocumentation that evidences Receiving Party's prior relationship with the Business Source added to Exhibit A. If\nReceiving Party fails to object or provide evidence documenting Receiving Party's prior relationship with the Business\nSource, the revised Exhibit A shall be deemed automatically amended and incorporated into this Agreement.\n2.\nNon-Solicitation; Non-Circumvention. Neither the Receiving Party nor any of its agents shall, in any manner\naccess, contact, solicit or conduct any business with a Business Source that has been made available by and through\nMonnit. The Receiving Party shall not in any way whatsoever circumvent or attempt to circumvent Monnit and\nPage1of4\nMonnit Corp. Logo.\nshall not enter into direct or indirect offers, negotiations or transactions with a Business Source revealed by Monnit.\n2.\nNon-Disclosure. The parties shall maintain complete confidentiality regarding each other's business and/or their\naffiliates and shall only disclose information pertaining to the Business Sources as permitted by Monnit, unless agreed and\ngranted an expressed written permission of Monnit.\n3.\nBroker Relationship. The parties agree that Monnit is acting solely as a broker in bringing interested parties\ntogether to conduct business. As such, Monnit shall be entitled to compensation for such business. Compensation shall be\nnegotiated separately and through a subsequent agreement by the Receiving Party and Monnit. Both parties agree that any\nbusiness transaction(s) between the Receiving Party and those Business Sources provided by Monnit will not be conducted\nwithout the prior agreement of Monnit’s compensation for such business transaction(s).\n3.\nDamages. In the event of circumvention by any of the undersigned Parties, whether direct and/or indirect, the\ncircumvented Party shall be entitled to a legal monetary compensation equal to ten times the maximum service fees it\nwould have realized from such a transaction, plus any and all expenses, including any and all legal fees incurred in lieu of\nthe recovery of such compensation.\n4.\nTerm. This agreement is valid for five (5) years from the date of signature, for any and all transactions between the\nParties therein, with renewal to be agreed upon between the signatories.\n5.\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws of the State of Utah\napplicable to contracts executed and to be performed in the State of Utah with exception of its provisions regarding conflict\nof laws.\n7.\nBinding on Successors and Assigns. This Agreement shall be binding upon the Parties hereto and in the case of\nindividual parties, their respective heirs, administrators and executors and in the case of all corporate Parties, their\nsuccessors and assigns.\n8.\nAssignment. This Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one\nparty without the prior written consent of the other party. Any such attempt by one party without the prior written consent\nof the other party shall be void.\n9.\nEntire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior\nproposals, representations, negotiations and communications oral or written, with respect to the subject matter herein.\nPage2of4\nMonnit Corp. Logo.\n10. Counterparts. This agreement may be signed in one or more counterparts and the parties agree that facsimile\ncopies of this Agreement to be considered as one legal original and signatures thereon shall be legal and binding.\nAccepted and Agreed: On this 13 day of February, 2012.\nMONNIT CORP.\nRECEIVING PARTY\nBy:\nBy: MICHEL ST-PIERRE\nName:\nName: Michel St-Pierre\nIs:\nIts:\nPage3of4\nMonnit Corp. Logo.\nExhibit A\nWithin 10 days of identifying a Business Source, Monnit shall amend this Exhibit A to include such Business Source and\ndeliver a copy of the amended Exhibit A to Receiving Party.\nBusiness Source provided by Monnit:\n_________________________________________________________________________________\n_________________________________________________________________________________\n_________________________________________________________________________________\n_________________________________________________________________________________\nPage4of4
a0ccd78c9587178ea47d960208ae4b5e.pdf	effective_date jurisdiction party	EX-10 .1 2 a17-22528 _1ex10d1.htm EX-10.1\nAttachment B\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS AGREEMENT is entered into between RICHARD A. DINKEL and EVOLVING SYSTEMS, INC. as of the Effective Date noted on\nthe signature page.\nRECITALS\nThe parties contemplate entering into a business relationship (“Purpose”) during which one party (“Disclosing Party”) may disclose to the other party (“Receiving Party”) certain confidential or proprietary information; and\nWith respect to the information exchanged between the parties, the parties agree as follows:\n1.\nDefinition of Confidential Information. “Confidential Information” means information, including, but not be limited\nto, performance, sales, financial, contractual and special marketing information, ideas, technical data, and concepts originated by the\nDisclosing Party and furnished to a Receiving Party, whether orally, in writing or any other medium, which information the\nDisclosing Party desires to protect against unrestricted disclosure or competitive use which (i) has not previously been published or\notherwise disclosed to the general public, (ii) has not previously been made available without restriction to the Receiving Party or\nothers, (iii) is marked as, indicated as, or could be reasonably construed to be confidential or proprietary.\n2.\nObligation to Maintain Confidentiality and Limitation on Use. The Receiving Party will:\na.\nhold the Confidential Information in confidence, exercising a degree of care not less than the care used by such party to\nprotect its own proprietary or confidential information that it does not wish to disclose, and in no event less than a reasonable degree\nof care;\nb.\nrestrict disclosure of the Confidential Information solely to those Representatives with a need to know and not disclose it to\nany other person;\nc.\nadvise those Representatives of their obligations with respect to the Confidential Information; and\nd.\nuse the Confidential Information only in connection with the Purpose and reproduce such Confidential Information only to\nthe extent necessary for such Purpose.\nThe term “Representatives” means the Affiliates of either party and the respective directors, officers, employees, attorneys, consultants and other agents and advisors of either party or of the Affiliates of either party. An “Affiliate”\nmeans any entity that directly or indirectly controls, is controlled by or is under common control with a party, whether such control arises through the ownership of voting stock, by contract, or otherwise. Each party will be responsible for\nany breach of this Agreement by its respective Representatives and will take all reasonably necessary measures to restrain its Representatives from unauthorized disclosure or use of Confidential Information.\n3.\nExclusions. The Receiving Party will have no obligation to preserve the confidential nature of any information which:\na.\nwas previously known to such party free of any obligation to keep it confidential; or\nb.\nis or becomes publicly available by means other than unauthorized disclosure; or\nc.\nis developed by or on behalf of such party independent of any Confidential Information furnished under this Agreement; or\nd.\nis received from a third party whose disclosure does not violate any confidentiality obligation.\n4.\nMandatory Disclosure Exemption. In the event the Receiving Party or its employees need (for securities law purposes)\nto make disclosures of Confidential Information or become legally compelled (by oral questions, interrogatories, requests for\ninformation or documents, subpoenas, civil investigative demands or otherwise) to disclose any Confidential Information of the\nDisclosing Party, the Receiving Party will provide the Disclosing Party with prompt written notice so that (a) the Disclosing Party\ncan work with the Receiving Party to limit the disclosure to the greatest extent possible consistent with legal obligations (it being\nunderstood that disclosure of the name of the other party will never be made without that party’s prior written consent) or (b) the\nDisclosing Party may seek a protective order or other appropriate remedy, or if the Disclosing Party so directs, the Receiving Party\nwill exercise its reasonable best efforts to obtain a protective order or other appropriate remedy at the Disclosing Party’s reasonable\nexpense. Failing the entry of a protective order or other appropriate remedy or receipt of a waiver hereunder, the Receiving Party will\nfurnish only that portion of the Confidential Information which it is\nadvised by its counsel is legally required to be furnished and will exercise its reasonable best efforts to obtain reliable assurance that confidential treatment will be accorded such Confidential Information.\n5.\nNo Rights Granted. All Confidential Information and all tangible forms of such information received under this\nAgreement by the Receiving Party will remain the property of Disclosing Party. Nothing contained in this Agreement will be\nconstrued as (i) requiring Disclosing Party to disclose, or Receiving Party to accept, any particular information, or (ii) granting to\nReceiving Party a license, either express or implied, under any patent, copyright, trade secret, or other intellectual property rights now\nor hereafter owned, obtained or licensable by Disclosing Party. Neither this Agreement, nor the disclosure of Confidential\nInformation under this Agreement will constitute or imply any promise or any commitment by either party with respect to any other\npresent or future transaction. Each party agrees that it will not modify or create other works with the other party’s Confidential\nInformation, or reverse engineer or decompile or disassemble any software programs contained therein.\n6.\nNo Warranty. All Confidential Information is provided “As Is”, without warranty of any kind. In particular, the parties do\nnot warrant, assure or guarantee that the information disclosed constitutes a non-infringement of other third-party trademarks, patents,\ncopyrights, mask works or any other intellectual property right in the information disclosed. Receiving Party agrees that Disclosing\nParty will not have liability or responsibility for any errors or omissions in, or any business decisions made by Receiving Party in\nreliance on, any Confidential Information disclosed by Disclosing Party under this Agreement.\n7.\nRemedies. Each party agrees that the Disclosing Party would be irreparably injured by a breach of this Agreement by the\nReceiving Party or its Representatives and that the Disclosing Party will be entitled to equitable relief, including injunctive relief and\nspecific performance, in the event of any breach of the provisions of this Agreement. Such remedies will not be deemed to be the\nexclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity.\n8.\nCompliance with Export Regulations. Each Party agrees that it will not export or re-export outside the United States,\neither directly or indirectly, any Confidential Information without first obtaining the prior written approval of the Disclosing Party,\nwhich may entail obtaining clearance or licensing by a governmental authority.\n9.\nTerm. The term of this Agreement will commence on the Effective Date and will continue for the term of the Consulting\nServices Agreement entered into between the parties (the “Term”). A party’s obligations to protect Confidential Information which it\nhas received during the Term will survive for a period of three (3) years after the date of disclosure of such Confidential Information;\nprovided, however, that a party’s obligation to protect any Confidential Information which is a trade secret under applicable law will\ncontinue as long as such Confidential Information remains a trade secret under applicable law.\n10.\nGoverning Law. This Agreement will be governed by and construed under the laws of the State of Colorado. Each party\nirrevocably consents to the jurisdiction and venue of the state and federal courts located in Douglas County, Colorado.\n11.\nEntire Agreement. This Agreement constitutes the entire understanding between the parties with respect to Confidential\nInformation provided in connection with the Purpose and supersedes all prior agreements between the parties with respect to\nConfidential Information provided in connection with Purpose. No amendment or modification of this Agreement will be valid or\nbinding on the parties unless made in writing and executed on behalf of each party by its duly authorized representative. If any\nprovision of this Agreement is found to be unenforceable, the remainder will be enforced as fully as possible and the unenforceable\nprovision will be deemed to be modified to the limited extent required to permit its enforcement in a manner most closely\napproximating the intention of the parties as expressed in this Agreement.\n12.\nNotices. All notices and other communications provided for or permitted under this Agreement will be in writing, made by\nhand delivery; first class mail, postage prepaid, return receipt requested; or by reliable overnight courier addressed to a party at the\naddress indicated in this Agreement. Notices will be deemed delivered when received by the party being notified, or, if sent via first\nclass mail as above, will be deemed delivered four days after such remittance.\n13.\nAssignment. Neither this Agreement nor any of the rights and obligations created in this Agreement may be assigned, in\nwhole or in part, by either party, without the prior written consent of the other party. Any assignment contrary to the foregoing is\nvoid. This Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and\nassigns.\n14.\nAdministrative Ease. The parties agree that this Agreement may be executed in counterparts, and that such counterpart\nsignatures will be considered effective if provided by PDF or facsimile transmission.\nEach party has caused this Agreement to be executed on its behalf as of the 1st day of October, 2017 (“Effective Date”).\nRICHARD A. DINKEL\n/s/ RICHARD A. DINKEL\nEVOLVING SYSTEMS, INC .\nBy:\n/s/ JULIE GOSAL HOARAU\nJulie Gosal Hoarau\nTitle: SVP Finance	EX-10.l 2 al7-22528_lexlOdl.htm EX-10.l\nAttachment B\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS AGREEMENTIS entered into between RIC HARD A. DINKEL and EVOLVING SYSTEMS, INC. as of the Effective Date noted on\nthe signature page.\nRE C ITA L S\nThe parties contemplate entering into a business relationship ("Purpose") during which one party ("Disclosing Party”) may disclose to the other party ("Receiving Party”) certain confidential or proprietary information; and\nWith respect to the information exchanged between the parties, the parties agree as follows:\n1. Definition of C onfidential Information. ”C onfidential Information” means information, including, but not be limited\nto, performance, sales, financial, contractual and special marketing information, ideas, technical data, and concepts originated by the\nDisclosing Party and furnished to a Receiving Party, whether orally, in writing or any other medium, which information the\nDisclosing Party desires to protect against unrestricted disclosure or competitive use which (i) has not previously been published or\notherwise disclosed to the general public, (ii) has not previously been made available without restriction to the Receiving Party or\nothers, (iii) is marked as, indicated as, or could be reasonably construed to be confidential or proprietary.\n2. Obligation to Maintain Confidentiality and Limitation on Use. The Receiving Party will:\na. hold the Confidential Information in confidence, exercising a degree of care not less than the care used by such party to\nprotect its own proprietary or confidential information that it does not wish to disclose, and in no event less than a reasonable degree\nof care;\nb. restrict disclosure of the Confidential Information solely to those Representatives with a need to know and not disclose it to\nany other person;\nc. advise those Representatives of their obligations with respect to the Confidential Information; and\nd. use the Confidential Information only in connection with the Purpose and reproduce such Confidential Information only to\nthe extent necessary for such Purpose.\nThe term "Represenmtives" means the Affiliates of either party and the respective directors, officers, employees, attorneys, consultants and other agents and advisors of either party or of the Affiliates of either party. An "Affiliate"\nmeans any entity that directly or indirectly controls, is contiolled by or is under common control with a party, whether such control arises through the ownership of voting stock, by contract, or otherwise. Each party will be responsible for\nany breach of this Agreement by its respective Representatives and will take all reasonably necessary measures to restiain its Representatives from unauthorized disclosure or use of Confidential Information.\n3. Exclusions. The Receiving Party will have no obligation to preserve the confidential nature of any information which:\na. was previously known to such party free of any obligation to keep it confidential; or\nb. is or becomes publicly available by means other than unauthorized disclosure; or\nc. is developed by or on behalf of such party independent of any Confidential Information furnished under this Agreement; or\nd. is received from a third party whose disclosure does not violate any confidentiality obligation.\n4. Mandatory Disclosure Exemption. In the event the Receiving Party or its employees need (for securities law purposes)\nto make disclosures of Confidential Information or become legally compelled (by oral questions, interrogatories, requests for\ninformation or documents, subpoenas, civil investigative demands or otherwise) to disclose any Confidential Information of the\nDisclosing Party, the Receiving Party will provide the Disclosing Party with prompt written notice so that (a) the Disclosing Party\ncan work with the Receiving Party to limit the disclosure to the greatest extent possible consistent with legal obligations (it being\nunderstood that disclosure of the name of the other party will never be made without that party’ s prior written consent) or (b) the\nDisclosing Party may seek a protective order or other appropriate remedy, or if the Disclosing Party so directs, the Receiving Party\nwill exercise its reasonable best efforts to obtain a protective order or other appropriate remedy at the Disclosing Party’ s reasonable\nexpense. Failing the entry of a protective order or other appropriate remedy or receipt of a waiver hereunder, the Receiving Party will\nfurnish only that portion of the Confidential Information which it is\n \nadvised by its counsel is legally required to be furnished and will exercise its reasonable best efforts to obtain reliable assurance that confidential treatment will be accorded such Confidential Information.\n5. No Rights G ranted. All Confidential Information and all tangible forms of such information received under this\nAgreement by the Receiving Party will remain the property of Disclosing Party. Nothing contained in this Agreement will be\nconstrued as (i) requiring Disclosing Party to disclose, or Receiving Party to accept, any particular information, or (ii) granting to\nReceiving Party a license, either express or implied, under any patent, copyright, trade secret, or other intellectual property rights now\nor hereafter owned, obtained or licensable by Disclosing Party. Neither this Agreement, nor the disclosure of Confidential\nInformation under this Agreement will constitute or imply any promise or any commitment by either party with respect to any other\npresent or future transaction. Each party agrees that it will not modify or create other works with the other party’ s Confidential\nInformation, or reverse engineer or decompile or disassemble any software programs contained therein.\na. No Warranty. All Confidential Information is provided ”As Is", without warranty of any kind. In particular, the parties do\nnot warrant, assure or guarantee that the information disclosed constitutes a non-infringement of other third-party trademarks, patents,\ncopyrights, mask works or any other intellectual property right in the information disclosed. Receiving Party agrees that Disclosing\nParty will not have liability or responsibility for any errors or omissions in, or any business decisions made by Receiving Party in\nreliance on, any Confidential Information disclosed by Disclosing Party under this Agreement.\n7. Remedies. Each party agrees that the Disclosing Party would be irreparably injured by a breach of this Agreement by the\nReceiving Party or its Representatives and that the Disclosing Party will be entitled to equitable relief, including injunctive relief and\nspecific performance, in the event of any breach of the provisions of this Agreement. Such remedies will not be deemed to be the\nexclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity.\n8. Compliance with Export Regulations. Each Party agrees that it will not export or reexport outside the United States,\neither directly or indirectly, any Confidential Information without first obtaining the prior written approval of the Disclosing Party,\nwhich may entail obtaining clearance or licensing by a governmental authority.\n9. Term. The term of this Agreement will commence on the Effective Date and will continue for the term of the Consulting\nServices Agreement entered into between the parties (the ”Term"). A party’ s obligations to protect Confidential Information which it\nhas received during the Term will survive for a period of three (3) years after the date of disclosure of such Confidential Information;\nprovided, however, that a party’ s obligation to protect any Confidential Information which is a trade secret under applicable law will\ncontinue as long as such Confidential Information remains a trade secret under applicable law.\n10. G overning Law. This Agreement will be governed by and construed under the laws of the State of Colorado. Each party\nirrevocably consents to the jurisdiction and venue of the state and federal courts located in Douglas County, Colorado.\n11. Entire Agreement. This A greement constitutes the entire understanding between the parties with respect to Confidential\nInformation provided in connection with the Purpose and supersedes all prior agreements between the parties with respect to\nConfidential Information provided in connection with Purpose. No amendment or modification of this Agreement will be valid or\nbinding on the parties unless made in writing and executed on behalf of each party by its duly authorized representative. If any\nprovision of this Agreement is found to be unenforceable, the remainder will be enforced as fully as possible and the unenforceable\nprovision will be deemed to be modified to the limited extent required to permit its enforcement in a manner most closely\napproximating the intention of the parties as expressed in this Agreement.\n12. Notices. All notices and other communications provided for or permitted under this Agreement will be in writing, made by\nhand delivery; first class mail, postage prepaid, return receipt requested; or by reliable overnight courier addressed to a party at the\naddress indicated in this Agreement. Notices will be deemed delivered when received by the party being notified, or, if sent via first\nclass mail as above, will be deemed delivered four days after such remittance.\n13. Assignment. Neither this Agreement nor any of the rights and obligations created in this Agreement may be assigned, in\nwhole or in part, by either party, without the prior written consent of the other party. Any assignment contrary to the foregoing is\nvoid. This Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and\nassigns.\n \n14. Administrative Ease. The parties agree that this Agreement may be executed in counterparts, and that such counterpart\nsignatures will be considered effective if provided by PDF or facsimile transmission.\nEach party has caused this Agreement to be executed on its behalf as of the lst day Of 0 CtOber, 2017 (”E ffective Date" ) .\nRICHARD A. DINKEL\n/s/ RICHARD A. DINKEL\nEVOLVING SY STEMS. INC.\nBy: /S/]ULIE GOSAL HOARAU\nI ulie (l osal Hoarau\nTitle: SVP Finance	EX-10.1 al7-22528lex10d1.htm EX-10.1\nAttachment B\nMUTUAL NONDISCLOSUR AGREEMENT\nTHIS AGREEMENT is entered into between RICHARD A. DINKEL and EVOLVING SYSTEMS, INC. as of the Effective Date noted on\nthe signature page.\nRECITALS\nThe parties contemplate entering into a business relationship ("Purpose") during which one party ("Disclosing Party") may disclose to the other party ("Receiving Party") certain confidential or proprietary information; and\nWith respect to the information exchanged between the parties, the parties agree as follows:\n1.\nDefinition of Confidential Information. "Confidential Information" means information including, but not be limited\nto, performance, sales, financial contractual and special marketing information, ideas, technical data, and concepts originated by the\nDisclosing Party and furnished to a Receiving Party, whether orally, in writing or any other medium, which information the\nDisclosing Party desires to protect against unrestricted disclosure or competitive use which (i) has not previously been published or\notherwise disclosed to the general public, (ii) has not previously been made available without restriction to the Receiving Party or\nothers, (iii) is marked as, indicated as, or could be reasonably construed to be confidential or proprietary.\n2.\nObligation to Maintain Confidentiality and Limitation on Use. The Receiving Party will:\na.\nhold the Confidential Information in confidence, exercising a degree of care not less than the care used by such party to\nprotect its own proprietary or confidential information that it does not wish to disclose, and in no event less than a reasonable degree\nof care;\nb.\nrestrict disclosure of the Confidential Information solely to those Representatives with a need to know and not disclose it to\nany other person;\nc.\nadvise those Representatives of their obligations with respect to the Confidential Information and\nd.\nuse the Confidential Information only in connection with the Purpose and reproduce such Confidential Information only to\nthe extent necessary for such Purpose.\nThe term "Representatives" means the Affiliates of either party and the respective directors, officers, employees, attorneys, consultants and other agents and advisors of either party or of the Affiliates of either party. An Affiliate"\nmeans any entity that directly or indirectly controls, is controlled by or is under common control with a party whether such control arises through the ownership of voting stock, by contract, or otherwise. Each party wil be responsible for\nany\nbreach of this Agreement by its respective Representatives and will take all reasonably necessary measures to restrain its Representatives from unauthorized disclosure or use of Confidential Information.\n3.\nExclusions. The Receiving Party will have no obligation to preserve the confidential nature of any information which:\na.\nwas previously known to such party free of any obligation to keep it confidential; or\nb.\nis or becomes publicly available by means other than unauthorized disclosure; or\nc.\nis developed by or on behalf of such party independent of any Confidential Information furnished under this A greement; or\nd.\nis received from a third party whose disclosure does not violate any confidentiality obligation.\n4.\nMandatory Disclosure Exemption. In the event the Receiving Party or its employees need (for securities law purposes)\nto make disclosures of Confidential Information or become legally compelled (by oral questions, interrogatories, requests for\ninformation or documents, subpoenas, civil investigative demands or otherwise) to disclose any Confidential Information of the\nDisclosing Party, the Receiving Party will provide the Disclosing Party with prompt written notice so that (a) the Disclosing Party\ncan work with the Receiving Party to limit the disclosure to the greatest extent possible consistent with legal obligations (it being\nunderstood that disclosure of the name of the other party will never be made without that party's prior written consent) or (b) the\nDisclosing Party may seek a protective order or other appropriate remedy, or if the Disclosing Party so directs, the Receiving Party\nwill exercise its reasonable best efforts to obtain a protective order or other appropriate remedy at the Disclosing Party's reasonable\nexpense. Failing the entry of a protective order or other appropriate remedy or receipt of a waiver hereunder, the Receiving Party will\nfurnish only that portion of the Confidential Information which it is\nadvised by its counsel is legally required to be furnished and will exercise its reasonable best efforts to obtain reliable assurance that confidential treatment will be accorded such Confidential Information.\n5.\nNo Rights G ranted. All Confidential Information and all tangible forms of such information received under this\nA greement by the Receiving Party will remain the property of Disclosing Party. Nothing contained in this A greement will be\nconstrued as (i) requiring Disclosing Party to disclose, or Receiving Party to accept, any particular information, or (ii) granting to\nReceiving Party a license, either express or implied, under any patent, copyright, trade secret, or other intellectual property rights now\nor hereafter owned obtained or licensable by isclosing Party Neither this A greement, nor the disclosure of Confidentia\nInformation under this A greement will constitute or imply any promise or any commitment by either party with respect to any other\npresent or future transaction. Each party agrees that it will not modify or create other works with the other party's Confidential\nInformation, or reverse engineer or decompile or disassemble any software programs contained therein.\n6.\nNo Warranty. All Confidential Information is provided "As Is", without warranty of any kind. In particular, the parties do\nnot warrant, assure or guarantee that the information disclosed constitutes a non-infringement of other third-party trademarks, patents,\ncopyrights, mask works or any other intellectual property right in the information disclosed. Receiving Party agrees that Disclosing\nParty will not have liability or responsibility for any errors or omissions in, or any business decisions made by Receiving Party in\nreliance on, any Confidential Information disclosed by Disclosing Party under this A greement.\n7.\nRemedies. Each party agrees that the Disclosing Party would be irreparably injured by a breach of this A greement by the\nReceiving Party or its Representatives and that the Disclosing Party will be entitled to equitable relief including injunctive relief and\nspecific performance, in the event of any breach of the provisions of this greement. Such remedies will not be deemed to be the\nexclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity.\n8.\nCompliance with Export Regulations. Each Party agrees that it will not export or re-export outside the United States,\neither directly or indirectly, any Confidential Information without first obtaining the prior written approval of the Disclosing Party,\nwhich may entail obtaining clearance or licensing by a governmental authority.\n9.\nTerm. The term of this A greement will commence on the Effective Date and will continue for the term of the Consulting\nServices greement entered into between the parties (the "Term"). A party's obligations to protect Confidential Information which it\nhas received during the Term will survive for a period of three (3) years after the date of disclosure of such Confidential Information;\nprovided, however, that a party's obligation to protect any Confidential Information which is a trade secret under applicable law will\ncontinue as long as such Confidential Information remains a trade secret under applicable law.\n10.\nGoverning Law. This A greement will be governed by and construed under the laws of the State of Colorado. Each party\nirrevocably consents to the jurisdiction and venue of the state and federal courts located in Douglas County, Colorado.\n11.\nEntire Agreement. This A greement constitutes the entire understanding between the parties with respect to Confidential\nInformation provided in connection with the Purpose and supersedes all prior agreements between the parties with respect to\nConfidential Information provided in connection with Purpose. No amendment or modification of this greement will be valid or\nbinding on the parties unless made in writing and executed on behalf of each party by its duly authorized representative If any\nprovision of this A greement is found to be unenforceable, the remainder will be enforced as fully as possible and the unenforceable\nprovision will be deemed to be modified to the limited extent required to permit its enforcement in a manner most closely\napproximating the intention of the parties as expressed in this A greement\n12.\nNotices. All notices and other communications provided for or permitted under this A greement will be in writing, made by\nhand delivery; first class mail, postage prepaid, return receipt requested; or by reliable overnight courier addressed to a party at the\naddress indicated in this Agreement. Notices will be deemed delivered when received by the party being notified, or, if sent via first\nclass mail as above, will be deemed delivered four days after such remittance.\n13.\nA ssignment. Neither this A greement nor any of the rights and obligations created in this A greement may be assigned, in\nwhole or in part, by either party, without the prior written consent of the other party. Any assignment contrary to the foregoing is\nvoid. This A greement will be binding upon and inure to the benefit of the parties and their respective permitted successors and\nassigns.\n14.\nAdministrative Ease. The parties agree that this A greement may be executed in counterparts, and that such counterpart\nsignatures will be considered effective if provided by PDF or facsimile transmission.\nEach party has caused this Agreement to be executed on its behalf as of the 1st day of October, 2017 ("Effective Date").\nRICHARD A. DINKEL\nIS/ RICHARD A. DINKEL\nEVOLVING SY STEMS, INC.\nBy:\n/s/ JULIE GOSAL HOARAU\nJule Goal Hoarau\nTitle: SVP Finance	EX-10 .1 2 a17-22528 _1ex10d1.htm EX-10.1\nAttachment B\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS AGREEMENT is entered into between RICHARD A. DINKEL and EVOLVING SYSTEMS, INC. as of the Effective Date noted on\nthe signature page.\nRECITALS\nThe parties contemplate entering into a business relationship (“Purpose”) during which one party (“Disclosing Party”) may disclose to the other party (“Receiving Party”) certain confidential or proprietary information; and\nWith respect to the information exchanged between the parties, the parties agree as follows:\n1.\nDefinition of Confidential Information. “Confidential Information” means information, including, but not be limited\nto, performance, sales, financial, contractual and special marketing information, ideas, technical data, and concepts originated by the\nDisclosing Party and furnished to a Receiving Party, whether orally, in writing or any other medium, which information the\nDisclosing Party desires to protect against unrestricted disclosure or competitive use which (i) has not previously been published or\notherwise disclosed to the general public, (ii) has not previously been made available without restriction to the Receiving Party or\nothers, (iii) is marked as, indicated as, or could be reasonably construed to be confidential or proprietary.\n2.\nObligation to Maintain Confidentiality and Limitation on Use. The Receiving Party will:\na.\nhold the Confidential Information in confidence, exercising a degree of care not less than the care used by such party to\nprotect its own proprietary or confidential information that it does not wish to disclose, and in no event less than a reasonable degree\nof care;\nb.\nrestrict disclosure of the Confidential Information solely to those Representatives with a need to know and not disclose it to\nany other person;\nc.\nadvise those Representatives of their obligations with respect to the Confidential Information; and\nd.\nuse the Confidential Information only in connection with the Purpose and reproduce such Confidential Information only to\nthe extent necessary for such Purpose.\nThe term “Representatives” means the Affiliates of either party and the respective directors, officers, employees, attorneys, consultants and other agents and advisors of either party or of the Affiliates of either party. An “Affiliate”\nmeans any entity that directly or indirectly controls, is controlled by or is under common control with a party, whether such control arises through the ownership of voting stock, by contract, or otherwise. Each party will be responsible for\nany breach of this Agreement by its respective Representatives and will take all reasonably necessary measures to restrain its Representatives from unauthorized disclosure or use of Confidential Information.\n3.\nExclusions. The Receiving Party will have no obligation to preserve the confidential nature of any information which:\na.\nwas previously known to such party free of any obligation to keep it confidential; or\nb.\nis or becomes publicly available by means other than unauthorized disclosure; or\nc.\nis developed by or on behalf of such party independent of any Confidential Information furnished under this Agreement; or\nd.\nis received from a third party whose disclosure does not violate any confidentiality obligation.\n4.\nMandatory Disclosure Exemption. In the event the Receiving Party or its employees need (for securities law purposes)\nto make disclosures of Confidential Information or become legally compelled (by oral questions, interrogatories, requests for\ninformation or documents, subpoenas, civil investigative demands or otherwise) to disclose any Confidential Information of the\nDisclosing Party, the Receiving Party will provide the Disclosing Party with prompt written notice so that (a) the Disclosing Party\ncan work with the Receiving Party to limit the disclosure to the greatest extent possible consistent with legal obligations (it being\nunderstood that disclosure of the name of the other party will never be made without that party’s prior written consent) or (b) the\nDisclosing Party may seek a protective order or other appropriate remedy, or if the Disclosing Party so directs, the Receiving Party\nwill exercise its reasonable best efforts to obtain a protective order or other appropriate remedy at the Disclosing Party’s reasonable\nexpense. Failing the entry of a protective order or other appropriate remedy or receipt of a waiver hereunder, the Receiving Party will\nfurnish only that portion of the Confidential Information which it is\nadvised by its counsel is legally required to be furnished and will exercise its reasonable best efforts to obtain reliable assurance that confidential treatment will be accorded such Confidential Information.\n5.\nNo Rights Granted. All Confidential Information and all tangible forms of such information received under this\nAgreement by the Receiving Party will remain the property of Disclosing Party. Nothing contained in this Agreement will be\nconstrued as (i) requiring Disclosing Party to disclose, or Receiving Party to accept, any particular information, or (ii) granting to\nReceiving Party a license, either express or implied, under any patent, copyright, trade secret, or other intellectual property rights now\nor hereafter owned, obtained or licensable by Disclosing Party. Neither this Agreement, nor the disclosure of Confidential\nInformation under this Agreement will constitute or imply any promise or any commitment by either party with respect to any other\npresent or future transaction. Each party agrees that it will not modify or create other works with the other party’s Confidential\nInformation, or reverse engineer or decompile or disassemble any software programs contained therein.\n6.\nNo Warranty. All Confidential Information is provided “As Is”, without warranty of any kind. In particular, the parties do\nnot warrant, assure or guarantee that the information disclosed constitutes a non-infringement of other third-party trademarks, patents,\ncopyrights, mask works or any other intellectual property right in the information disclosed. Receiving Party agrees that Disclosing\nParty will not have liability or responsibility for any errors or omissions in, or any business decisions made by Receiving Party in\nreliance on, any Confidential Information disclosed by Disclosing Party under this Agreement.\n7.\nRemedies. Each party agrees that the Disclosing Party would be irreparably injured by a breach of this Agreement by the\nReceiving Party or its Representatives and that the Disclosing Party will be entitled to equitable relief, including injunctive relief and\nspecific performance, in the event of any breach of the provisions of this Agreement. Such remedies will not be deemed to be the\nexclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity.\n8.\nCompliance with Export Regulations. Each Party agrees that it will not export or re-export outside the United States,\neither directly or indirectly, any Confidential Information without first obtaining the prior written approval of the Disclosing Party,\nwhich may entail obtaining clearance or licensing by a governmental authority.\n9.\nTerm. The term of this Agreement will commence on the Effective Date and will continue for the term of the Consulting\nServices Agreement entered into between the parties (the “Term”). A party’s obligations to protect Confidential Information which it\nhas received during the Term will survive for a period of three (3) years after the date of disclosure of such Confidential Information;\nprovided, however, that a party’s obligation to protect any Confidential Information which is a trade secret under applicable law will\ncontinue as long as such Confidential Information remains a trade secret under applicable law.\n10.\nGoverning Law. This Agreement will be governed by and construed under the laws of the State of Colorado. Each party\nirrevocably consents to the jurisdiction and venue of the state and federal courts located in Douglas County, Colorado.\n11.\nEntire Agreement. This Agreement constitutes the entire understanding between the parties with respect to Confidential\nInformation provided in connection with the Purpose and supersedes all prior agreements between the parties with respect to\nConfidential Information provided in connection with Purpose. No amendment or modification of this Agreement will be valid or\nbinding on the parties unless made in writing and executed on behalf of each party by its duly authorized representative. If any\nprovision of this Agreement is found to be unenforceable, the remainder will be enforced as fully as possible and the unenforceable\nprovision will be deemed to be modified to the limited extent required to permit its enforcement in a manner most closely\napproximating the intention of the parties as expressed in this Agreement.\n12.\nNotices. All notices and other communications provided for or permitted under this Agreement will be in writing, made by\nhand delivery; first class mail, postage prepaid, return receipt requested; or by reliable overnight courier addressed to a party at the\naddress indicated in this Agreement. Notices will be deemed delivered when received by the party being notified, or, if sent via first\nclass mail as above, will be deemed delivered four days after such remittance.\n13.\nAssignment. Neither this Agreement nor any of the rights and obligations created in this Agreement may be assigned, in\nwhole or in part, by either party, without the prior written consent of the other party. Any assignment contrary to the foregoing is\nvoid. This Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and\nassigns.\n14.\nAdministrative Ease. The parties agree that this Agreement may be executed in counterparts, and that such counterpart\nsignatures will be considered effective if provided by PDF or facsimile transmission.\nEach party has caused this Agreement to be executed on its behalf as of the 1st day of October, 2017 (“Effective Date”).\nRICHARD A. DINKEL\n/s/ RICHARD A. DINKEL\nEVOLVING SYSTEMS, INC .\nBy:\n/s/ JULIE GOSAL HOARAU\nJulie Gosal Hoarau\nTitle: SVP Finance
a280f2042bdbc08700bf943438114839.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 9 a2201585zex-99 _d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nMUTUAL CONFIDENTIALITY AGREEMENT\nTHIS MUTUAL CONFIDENTIALITY AGREEMENT (“Agreement”) is entered into on the\nday of December, 2009 but with\neffect as of the 8th day of December, 2009 (the “Effective Date”), by and between MARTEK BIOSCIENCES CORPORATION\n(“MARTEK”), a Delaware, U.S .A., corporation having its principal place of business at 6480 Dobbin Road, Columbia, Maryland 21045 and\nKONINKLIJKE DSM N.V. (“COMPANY”), a Dutch corporation having its principal place of business at Het Overloon 1, 6401 JH Heerlen,\nThe Netherlands.\nWITNESSETH:\nWHEREAS, MARTEK has developed proprietary technology relating to the development, manufacture and commercialization of\n(1) infant formula ingredients, pharmaceuticals, nutritional supplements, food ingredients and other high value products derived from algae,\nfungi and other sources and (2) products and processes involving metabolic engineering and molecular genetics of organisms and MARTEK is in\nownership and possession of certain Confidential Information (as defined below) related to the foregoing which MARTEK considers proprietary,\nand\nWHEREAS, such Confidential Information is an integral part of the business activities of MARTEK, and\nWHEREAS, COMPANY and its Affiliates have developed proprietary technology, knowledge and expertise relating to the\ndevelopment, manufacture and commercialization of ingredients for the food, feed and beverage industries and is in ownership and possession of\ncertain Confidential Information (as defined below) related thereto which COMPANY considers proprietary, and\nWHEREAS, such Confidential Information is an integral part of the business activities of COMPANY, and\nWHEREAS, MARTEK and COMPANY desire to discuss certain strategic business opportunities, and\nWHEREAS, each party hereto desires to review the Confidential Information of the other for the purpose of evaluating a potential\nbusiness collaboration between the parties, and\nWHEREAS, each party hereto desires to receive from the other party covenants relating to the non-disclosure and non-use of the\nConfidential Information.\nNOW, THEREFORE, in consideration of the disclosure of Confidential Information by a party hereto (the “Disclosing Party”) to the\nother party (the “Receiving Party”), and the premises\nand mutual covenants and agreements contained herein, MARTEK and COMPANY, intending to be legally bound, hereby agree as follows:\n1.\nConfidential Information. The term “Confidential Information” shall include all confidential and proprietary information\nrelating to the respective products and operations of MARTEK and COMPANY that is marked confidential and disclosed by MARTEK or\nCOMPANY to the other party orally, by observation, in writing or photographs or through product samples or any other tangible or intangible\nform or method; provided, however, that information disclosed orally shall be Confidential Information within the meaning of this Agreement\nonly if it is reduced to writing or other tangible form and marked confidential and submitted to the Receiving Party as soon as practicable\nthereafter but, in any event, no later than thirty (30) days after such oral disclosure. Without limiting the generality of the foregoing, Confidential\nInformation shall include information with respect to MARTEK’s and COMPANY’s respective present and prospective products, processes\n(manufacturing and otherwise), plans, technology, trade secrets, systems, agreements, customers, financial conditions and projections, and sales\nand marketing methods.\nBoth parties hereto acknowledge that such Confidential Information has been and will continue to be of central importance to\neach other’s business and that disclosure of it to others or its use by others or by the Receiving Party, other than the use or disclosure of such\ninformation by the Receiving Party for the purposes set forth hereunder, could cause substantial loss to the Disclosing Party. Each of MARTEK\nand COMPANY accordingly agrees that the Confidential Information shall be kept confidential and shall only be used in accordance with the\nterms of this Agreement by such party, its Affiliates (as defined below) and their respective Representatives (as defined below) and, except as\nrequired by law or as expressly otherwise permitted by the terms hereof, will not be disclosed to any third party by such party, its Affiliates or\ntheir respective Representatives. The Receiving Party shall be responsible for ensuring compliance with the terms of this Agreement by its\nAffiliates and their respective Representatives. Nothing contained in this Agreement shall prevent the Disclosing Party from enforcing its rights,\nif any, under this Agreement against the Receiving Party, its Affiliates or their respective Representatives, either jointly or severally. The\nReceiving Party shall be permitted to disclose Confidential Information only to its Affiliates, and to the directors, officers, employees, agents,\nadvisors (including attorneys, accountants and financial advisors) and prospective lenders (“Representatives”) of the Receiving Party and its\nAffiliates, who have a need to know such Confidential Information for the purposes set forth herein and only when such Representatives have\nbeen advised of the confidential nature of the information and of the terms of this Agreement. The Receiving Party shall treat any and all such\nConfidential Information in the same manner and with the same protection as it maintains for its own confidential information.\nth\nThis obligation of confidentiality will not apply to any information to the extent that such information: (i) is known to the\nReceiving Party prior to the original disclosure of such information by the Disclosing Party to the Receiving Party, as evidenced by the Receiving\nParty’s written records or otherwise; (ii) is now or later becomes generally available to the public, such as by publication or otherwise, through\nno fault of the Receiving Party; (iii) is obtained by the Receiving Party from a third party who is not known by the Receiving Party to be\nprohibited from making such a disclosure; or (iv) is independently developed by individual employees of the Receiving Party who had no access\nto the Confidential Information of the Disclosing Party, as evidenced by the Receiving Party’s written records or otherwise. Notwithstanding\nanything to the contrary herein, the parties agree that no Confidential Information will be exchanged between the parties if such exchange would\nconstitute a violation of applicable antitrust laws or regulations; provided that any such Confidential Information may be disclosed to the\nReceiving Party’s outside legal advisors on the condition that such advisors shall not disclose such Confidential Information to the Receiving\nParty except in a form or in a manner that would not constitute a violation of applicable antitrust laws or regulations. For purposes of this\nAgreement, “Affiliate” means with respect to either party hereto, any person directly or indirectly controlling, controlled by, or under common\ncontrol with, such party. A person shall be deemed to “control” another person if such person possesses, directly or indirectly, the power to direct\nor cause the direction of the management or policies of such other person, whether through ownership of voting securities, by contract or\notherwise. The term “person” as used in this Agreement shall be construed broadly to include without limitation any corporation, company,\nlimited liability company, partnership or individual.\nThe Receiving Party agrees that all such Confidential Information disclosed to it by the Disclosing Party shall remain the\nproperty of the Disclosing Party. Any and all Confidential Information obtained by the Receiving Party shall be returned to the Disclosing Party\nor destroyed (with any such destruction certified by the Receiving Party), at the Receiving Party’s option, upon the earlier of the Disclosing\nParty’s request or the expiration of this Agreement, except that one copy of the Confidential Information may be retained by legal counsel of the\nReceiving Party and used solely for the purpose of providing legal advice on the scope of its obligations under this Agreement and in connection\nwith any dispute arising out of or under this Agreement.\nNotwithstanding anything to the contrary herein, in the event that the Receiving Party or any Representative is requested or\nrequired, by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process, to\ndisclose Confidential Information, it is agreed that the Receiving Party or such Representative will, if legally permitted, provide the Disclosing\nParty with prompt notice of such event so that the Disclosing Party may seek a protective order or other appropriate remedy or waive compliance\nwith the applicable provisions of this Agreement by the Receiving Party or such Representative. In the event and to the extent that such\nprotective order or other remedy is not obtained and disclosure of Confidential Information is required under law, or the Disclosing Party grants a\nwaiver hereunder, the Receiving Party or such Representative, as the case may be, (i) may, without liability hereunder furnish that portion (and\nonly that portion) of the Confidential Information which, in the opinion of counsel to the Receiving Party or such Representative, as the case may\nbe, the Receiving Party or such Representative is legally\nrequired to disclose and (ii) will exercise its commercially reasonable efforts to have confidential treatment accorded any Confidential\nInformation so furnished.\n2.\nProprietary Rights; Etc. This Agreement shall in no way be construed as the granting of a license by one party hereto to the\nother directly or indirectly under any patent or patent application or other form of proprietary property owned by either party hereto.\nFurthermore, nothing in this Agreement shall be interpreted so as to obligate either party to continue to evaluate mutual strategic business\nopportunities or to negotiate or enter into a further agreement with the other party to engage in any transaction.\n3.\nTerm of Agreement. All disclosures of Confidential Information shall be completed within one year of the Effective Date,\nunless either party before such date gives notice that it no longer desires to consider such mutual strategic business opportunities, but the\nobligations of Receiving Party under Paragraph 1 shall survive for a period of five years from the Effective Date.\n4.\nDelivery of Confidential Information; Notices. In the case of COMPANY, all Confidential Information shall be provided to,\nand any notices, requests, demands or other communications provided for by this Agreement shall be sufficient if in writing and if sent by\nregistered or certified mail to the attention of, Mr. Gertjan de Koning at the address of COMPANY set forth above or at such other address as\nCOMPANY has filed in writing with MARTEK. In the case of MARTEK, all Confidential Information shall be provided to, and any notices,\nrequests, demands or other communications provided for by this Agreement shall be sufficient if in writing and if sent by registered or certified\nmail to the attention of, David M. Feitel, Esq. at the address of MARTEK set forth above or at such other address as MARTEK has filed in\nwriting with COMPANY.\n5.\nSecurities Laws Compliance. Each party acknowledges and agrees that it will comply with all applicable securities laws,\nincluding without limitation, the following:\n(a)\nInsider Information. The Federal securities laws of the U.S. strictly prohibit the purchase or sale of a publicly held\nsecurity by persons who are in the possession of “material non-public information” relating to that security. Generally, “material non-public\ninformation” is information (i) which is possessed by a person by virtue of a special relationship between such person and a company whose\nsecurities are publicly-held, such as a relationship that a recipient of confidential information may have with such a company, and (ii) which\nwould be considered important by a person in considering whether to buy or sell the securities of such a company. Each party acknowledges that\ntrading in the securities of the other party, or of any publicly traded Affiliate of the other party, when in possession of “material non-public\ninformation” regarding the other party or any such Affiliate is strictly prohibited.\n(b)\nTipping. The Federal securities laws of the U.S. also prohibit a person from communicating “material non-public\ninformation” to a third party in circumstances in which it is reasonably likely that such person will use such information in dealing with the\nsecurities of a publicly held company (i.e ., “tipping”). Any person who communicates a “tip” is in violation of these rules and is subject to\nmonetary penalties and/or imprisonment. Each party acknowledges that communicating “material non-public information” regarding the other\nparty or any of its publicly traded Affiliates in such circumstances is strictly prohibited.\n(c)\nStandstill Period. Each party also agrees that for a period ending the earlier of eighteen months from the Effective\nDate and the date of a Significant Event (as defined below), neither such party nor any of its Affiliates will, without the prior written consent of\nthe other party, directly or indirectly: (1) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, any voting securities of\nthe other party or any of its Affiliates or any direct or indirect rights, options or interests with respect to any voting securities (whether by\npurchase, business combination, merger, consolidation, share exchange, joint venture or similar transaction); (2) solicit proxies or consents or\nbecome a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended\n(the “Exchange Act”)) of proxies or consents with respect to securities of the other party or its Affiliates or initiate any stockholder proposal with\nrespect to the other party or its Affiliates; (3) seek to control or influence the management, board of directors or policies of the other party or any\nof its Affiliates, or take action for the purpose of convening a stockholders meeting of the other party or any of its Affiliates; (4) make any\nproposal or any public announcement relating to a tender or exchange offer for voting securities of the other party or any of its Affiliates or\nrelating to any business combination, acquisition, merger, consolidation, share exchange, sale of substantially all assets, liquidation or similar\ntransaction involving the other party, any of its voting securities or material assets or any voting securities or material assets of any of its\nAffiliates (other than the purchase and sale of assets in the ordinary course of business between the parties and their respective Affiliates), or take\nany action that would or would reasonably be expected to require the other party or any of its Affiliates to make a public announcement\nregarding any of the foregoing; (5) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Exchange Act for the\npurpose of acquiring, holding, voting or disposing of voting securities of the other party or any of its Affiliates or taking any other actions\nrestricted or prohibited under clauses (1) through (4) of this paragraph; (6) enter into any discussions, negotiations, arrangements or\nunderstandings with any third party, with respect to any of the actions restricted or prohibited under clauses (1) through (5) of this paragraph; or\n(7) knowingly advise, assist or encourage any other person in connection with any action restricted or prohibited under clauses (1) through (5) of\nthis paragraph.\nFor purposes of this Agreement, a “Significant Event” means (i) the public announcement by the other party or any of its\nAffiliates of the entry by it into a definitive agreement providing for a business combination, merger, consolidation, share exchange, sale of more\nthan 50% of its assets, liquidation or similar transaction involving such other party or any of its Affiliates or any of their securities pursuant to\nwhich at least 50% of the outstanding shares of common stock of such party or Affiliate would be converted into cash or securities of another\nperson or 50% or more of the then outstanding shares of common stock of such party or Affiliate would be owned by persons other than the then\ncurrent holders of shares of common stock of\nsuch party or Affiliate, or which would result in more than 50% of the assets of such party and its Affiliates taken as a whole being sold to any\nperson or (ii) the commencement by an unAffiliated third party of a tender or exchange offer to acquire beneficial ownership of 50% or more of\nthe outstanding voting securities of the other party or any of its Affiliates.\n(d)\nFor the avoidance of doubt, it is understood and agreed that the obligations contained in this Section 5 are in addition\nto and are in no way in lieu of any other obligations that the parties may have under applicable securities laws and regulations. Each party\nhereby agrees to indemnify and hold harmless the other party and its Affiliates from and against any damage, loss, cost or liability (including\nreasonable legal fees and the cost of enforcing this indemnity) arising out of or resulting from any violation by such first party of any applicable\nsecurities laws or regulations.\n6.\nEntire Agreement. This Agreement constitutes the entire understanding of COMPANY and MARTEK with respect to the\nsubject matter hereof and supersedes any and all prior understandings, written or oral.\n7.\nThird Party Beneficiaries. It is understood and agreed that any breach by a party to this Agreement could have an adverse\neffect on one or more the Affiliates of the other party (in addition to the party itself). As a result, the Affiliates of each party shall be deemed to\nbe third party beneficiaries hereunder and shall have the right, as third party beneficiaries, to enforce the provisions of this Agreement against the\nother party.\n8.\nGoverning Law. This Agreement shall be governed by the substantive laws of the State of New York located in the United\nStates (excluding choice of law rules thereof that would result in the application of the laws of another jurisdiction). Each party irrevocably\nconsents to the personal jurisdiction of, and venue in, the state and federal courts within the State of New York.\n9.\nSeverability. The invalidity or unenforceability of any provisions hereof shall in no way affect the validity or enforceability of\nany other such provision. If any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so\nbroad as is enforceable.\n10.\nInjunctive Relief. Each party acknowledges and agrees that due to the unique nature of the Disclosing Party’s Confidential\nInformation and the standstill provisions of this Agreement, there can be no adequate remedy at law for any breach of a party’s obligations\nhereunder, that any such breach may result in irreparable harm to the other party, and therefore, that upon any such breach or threat thereof, the\nother party shall be entitled to seek injunctive relief to prevent such irreparable harm in addition to whatever remedies it might have at law or in\nequity.\n11.\nWaiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY\nAND ALL RIGHTS TO TRIAL BY JURY IN\nANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FROM ANY COUNTERCLAIM THEREIN.\n12.\nCounterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but both of which\ntogether shall constitute one and the same instrument.\nIN WITNESS WHEREOF, each party hereto acknowledges that the representative named below has the authority to execute this\nAgreement on behalf of the respective party to form a legally binding contract and has caused this Agreement to be duly executed on its behalf.\nMARTEK BIOSCIENCES CORPORATION\nBy:\n/s/ David M. Feitel\nName: David M. Feitel\nTitle:\nExecutive VP and General Counsel\nKONINKLIJKE DSM N.V.\nBy:\n/s/ Hein Schreuder\nName: Hein Schreuder\nTitle:\nExecutive Vice President Corporate Strategy & Acquisitions\nBy:\n/s/ Stephan Tanda\nName: Stephan Tanda\nTitle:\nManaging Board Member\nAmendment No. 1\nto MUTUAL CONFIDENTIALITY AGREEMENT\nbetween\nMartek Biosciences Corporation\nand\nKoninklijke DSM N.V.\nThis Amendment No. 1 to the Mutual Confidentiality Agreement (“FIRST AMENDMENT”), is made and entered into as of December 7 2010,\nbetween Martek Biosciences Corporation, a Delaware Corporation having its principal place of business at 6480 Dobbin Road, Columbia,\nMaryland 21045 (herein referred to as “MARTEK”) and Koninklijke DSM N.V., having its principal place of business at Het Overloon 1, 6401\nJH Heerlen, The Netherlands (“COMPANY”).\nWHEREAS, MARTEK and COMPANY previously entered into a Mutual Confidentiality Agreement (“AGREEMENT”) dated\nDecember 8, 2009, and\nWHEREAS, MARTEK and COMPANY desire to amend section 3 of the AGREEMENT.\nNOW THEREFORE, in consideration of the premises and of the mutual covenants of the parties hereto, each party hereby agrees with\nthe other effective as of the date first above written, to amend the AGREEMENT as follows:\n1.\nSection 3 of the AGREEMENT, shall be replaced in its entirety with the following:\nTerm of Agreement. All disclosures of Confidential Information shall be completed within two (2) years of the Effective Date,\nunless either party before such date gives notice that it no longer desires to consider such mutual strategic business\nopportunities, but the obligations of Receiving Party under Paragraph 1 shall survive the expiration or terminate of this\nAgreement.\n2.\nThis FIRST AMENDMENT may be executed in counterparts, each of which shall be deemed an original and all of which\ntogether shall constitute one and the same FIRST AMENDMENT.\n3.\nAll other terms and conditions of the AGREEMENT not expressly modified herein shall remain in full force and effect.\nIN WITNESS WHEREOF, the parties have each caused this FIRST AMENDMENT to be signed and delivered by their duly\nauthorized representatives as of the date first written above.\nMARTEK BIOSCIENCES CORPORATION\nKONINKLIJKE DSM N.V.\nBy:\n/s/ David M. Feitel\nBy:\n/s/ Stephen Tanda\nName:\nDavid M. Feitel\nName:\nStephen Tanda\nTitle:\nEVP and General Counsel\nTitle:\nMember Managing Board\nBy:\n/s/ L.H. Staal\nName:\nL.H Staal\nTitle:\nPresident & CEO DNP	EX-99.(D)(2) 9 a2201585zex-99_d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nMUTUAL CONFIDENTIALITY AGREEMENT\nTHIS MUTUAL CONFIDENTIALITY AGREEMENT (“Agreement”) is entered into on the th day of December, 2009 but with\neffect as of the 8th day of December, 2009 (the “Effective Date”), by and between MARTEK BIOSCIENCES CORPORATION\n(“MARTEK?”), a Delaware, U.S.A., corporation having its principal place of business at 6480 Dobbin Road, Columbia, Maryland 21045 and\nKONINKLIJKE DSM N.V. (“COMPANY”), a Dutch corporation having its principal place of business at Het Overloon 1, 6401 JH Heerlen,\nThe Netherlands.\nWITNESSETH:\nWHEREAS, MARTEK has developed proprietary technology relating to the development, manufacture and commercialization of\n(1) infant formula ingredients, pharmaceuticals, nutritional supplements, food ingredients and other high value products derived from algae,\nfungi and other sources and (2) products and processes involving metabolic engineering and molecular genetics of organisms and MARTEK is in\nownership and possession of certain Confidential Information (as defined below) related to the foregoing which MARTEK considers proprietary,\nand\nWHEREAS, such Confidential Information is an integral part of the business activities of MARTEK, and\nWHEREAS, COMPANY and its Affiliates have developed proprietary technology, knowledge and expertise relating to the\ndevelopment, manufacture and commercialization of ingredients for the food, feed and beverage industries and is in ownership and possession of\ncertain Confidential Information (as defined below) related thereto which COMPANY considers proprietary, and\nWHEREAS, such Confidential Information is an integral part of the business activities of COMPANY, and\nWHEREAS, MARTEK and COMPANY desire to discuss certain strategic business opportunities, and\nWHEREAS, each party hereto desires to review the Confidential Information of the other for the purpose of evaluating a potential\nbusiness collaboration between the parties, and\nWHEREAS, each party hereto desires to receive from the other party covenants relating to the non-disclosure and non-use of the\nConfidential Information.\nNOW, THEREFORE, in consideration of the disclosure of Confidential Information by a party hereto (the “Disclosing Party”) to the\nother party (the “Receiving Party”), and the premises\n \nand mutual covenants and agreements contained herein, MARTEK and COMPANY, intending to be legally bound, hereby agree as follows:\n1. Confidential Information. The term “Confidential Information” shall include all confidential and proprietary information\nrelating to the respective products and operations of MARTEK and COMPANY that is marked confidential and disclosed by MARTEK or\nCOMPANY to the other party orally, by observation, in writing or photographs or through product samples or any other tangible or intangible\nform or method; provided, however, that information disclosed orally shall be Confidential Information within the meaning of this Agreement\nonly if it is reduced to writing or other tangible form and marked confidential and submitted to the Receiving Party as soon as practicable\nthereafter but, in any event, no later than thirty (30) days after such oral disclosure. Without limiting the generality of the foregoing, Confidential\nInformation shall include information with respect to MARTEK’s and COMPANY’s respective present and prospective products, processes\n(manufacturing and otherwise), plans, technology, trade secrets, systems, agreements, customers, financial conditions and projections, and sales\nand marketing methods.\nBoth parties hereto acknowledge that such Confidential Information has been and will continue to be of central importance to\neach other’s business and that disclosure of it to others or its use by others or by the Receiving Party, other than the use or disclosure of such\ninformation by the Receiving Party for the purposes set forth hereunder, could cause substantial loss to the Disclosing Party. Each of MARTEK\nand COMPANY accordingly agrees that the Confidential Information shall be kept confidential and shall only be used in accordance with the\nterms of this Agreement by such party, its Affiliates (as defined below) and their respective Representatives (as defined below) and, except as\nrequired by law or as expressly otherwise permitted by the terms hereof, will not be disclosed to any third party by such party, its Affiliates or\ntheir respective Representatives. The Receiving Party shall be responsible for ensuring compliance with the terms of this Agreement by its\nAffiliates and their respective Representatives. Nothing contained in this Agreement shall prevent the Disclosing Party from enforcing its rights,\nif any, under this Agreement against the Receiving Party, its Affiliates or their respective Representatives, either jointly or severally. The\nReceiving Party shall be permitted to disclose Confidential Information only to its Affiliates, and to the directors, officers, employees, agents,\nadvisors (including attorneys, accountants and financial advisors) and prospective lenders (“Representatives”) of the Receiving Party and its\nAffiliates, who have a need to know such Confidential Information for the purposes set forth herein and only when such Representatives have\nbeen advised of the confidential nature of the information and of the terms of this Agreement. The Receiving Party shall treat any and all such\nConfidential Information in the same manner and with the same protection as it maintains for its own confidential information.\nThis obligation of confidentiality will not apply to any information to the extent that such information: (i) is known to the\nReceiving Party prior to the original disclosure of such information by the Disclosing Party to the Receiving Party, as evidenced by the Receiving\n \nParty’s written records or otherwise; (ii) is now or later becomes generally available to the public, such as by publication or otherwise, through\nno fault of the Receiving Party; (iii) is obtained by the Receiving Party from a third party who is not known by the Receiving Party to be\nprohibited from making such a disclosure; or (iv) is independently developed by individual employees of the Receiving Party who had no access\nto the Confidential Information of the Disclosing Party, as evidenced by the Receiving Party’s written records or otherwise. Notwithstanding\nanything to the contrary herein, the parties agree that no Confidential Information will be exchanged between the parties if such exchange would\nconstitute a violation of applicable antitrust laws or regulations; provided that any such Confidential Information may be disclosed to the\nReceiving Party’s outside legal advisors on the condition that such advisors shall not disclose such Confidential Information to the Receiving\nParty except in a form or in a manner that would not constitute a violation of applicable antitrust laws or regulations. For purposes of this\nAgreement, “Affiliate” means with respect to either party hereto, any person directly or indirectly controlling, controlled by, or under common\ncontrol with, such party. A person shall be deemed to “control” another person if such person possesses, directly or indirectly, the power to direct\nor cause the direction of the management or policies of such other person, whether through ownership of voting securities, by contract or\notherwise. The term “person” as used in this Agreement shall be construed broadly to include without limitation any corporation, company,\nlimited liability company, partnership or individual.\nThe Receiving Party agrees that all such Confidential Information disclosed to it by the Disclosing Party shall remain the\nproperty of the Disclosing Party. Any and all Confidential Information obtained by the Receiving Party shall be returned to the Disclosing Party\nor destroyed (with any such destruction certified by the Receiving Party), at the Receiving Party’s option, upon the earlier of the Disclosing\nParty’s request or the expiration of this Agreement, except that one copy of the Confidential Information may be retained by legal counsel of the\nReceiving Party and used solely for the purpose of providing legal advice on the scope of its obligations under this Agreement and in connection\nwith any dispute arising out of or under this Agreement.\nNotwithstanding anything to the contrary herein, in the event that the Receiving Party or any Representative is requested or\nrequired, by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process, to\ndisclose Confidential Information, it is agreed that the Receiving Party or such Representative will, if legally permitted, provide the Disclosing\nParty with prompt notice of such event so that the Disclosing Party may seek a protective order or other appropriate remedy or waive compliance\nwith the applicable provisions of this Agreement by the Receiving Party or such Representative. In the event and to the extent that such\nprotective order or other remedy is not obtained and disclosure of Confidential Information is required under law, or the Disclosing Party grants a\nwaiver hereunder, the Receiving Party or such Representative, as the case may be, (i) may, without liability hereunder furnish that portion (and\nonly that portion) of the Confidential Information which, in the opinion of counsel to the Receiving Party or such Representative, as the case may\nbe, the Receiving Party or such Representative is legally\n \nrequired to disclose and (ii) will exercise its commercially reasonable efforts to have confidential treatment accorded any Confidential\nInformation so furnished.\n2. Proprietary Rights; Etc. This Agreement shall in no way be construed as the granting of a license by one party hereto to the\nother directly or indirectly under any patent or patent application or other form of proprietary property owned by either party hereto.\nFurthermore, nothing in this Agreement shall be interpreted so as to obligate either party to continue to evaluate mutual strategic business\nopportunities or to negotiate or enter into a further agreement with the other party to engage in any transaction.\n3. Term of Agreement. All disclosures of Confidential Information shall be completed within one year of the Effective Date,\nunless either party before such date gives notice that it no longer desires to consider such mutual strategic business opportunities, but the\nobligations of Receiving Party under Paragraph 1 shall survive for a period of five years from the Effective Date.\n \n4, Delivery of Confidential Information; Notices. In the case of COMPANY, all Confidential Information shall be provided to,\nand any notices, requests, demands or other communications provided for by this Agreement shall be sufficient if in writing and if sent by\nregistered or certified mail to the attention of, Mr. Gertjan de Koning at the address of COMPANY set forth above or at such other address as\nCOMPANY has filed in writing with MARTEK. In the case of MARTEK, all Confidential Information shall be provided to, and any notices,\nrequests, demands or other communications provided for by this Agreement shall be sufficient if in writing and if sent by registered or certified\nmail to the attention of, David M. Feitel, Esq. at the address of MARTEK set forth above or at such other address as MARTEK has filed in\nwriting with COMPANY.\n5. Securities Laws Compliance. Each party acknowledges and agrees that it will comply with all applicable securities laws,\nincluding without limitation, the following:\n \n(a) Insider Information. The Federal securities laws of the U.S. strictly prohibit the purchase or sale of a publicly held\nsecurity by persons who are in the possession of “material non-public information” relating to that security. Generally, “material non-public\ninformation” is information (i) which is possessed by a person by virtue of a special relationship between such person and a company whose\nsecurities are publicly-held, such as a relationship that a recipient of confidential information may have with such a company, and (ii) which\nwould be considered important by a person in considering whether to buy or sell the securities of such a company. Each party acknowledges that\ntrading in the securities of the other party, or of any publicly traded Affiliate of the other party, when in possession of “material non-public\ninformation” regarding the other party or any such Affiliate is strictly prohibited.\n(b) Tipping. The Federal securities laws of the U.S. also prohibit a person from communicating “material non-public\ninformation” to a third party in circumstances in which it is reasonably likely that such person will use such information in dealing with the\n \nsecurities of a publicly held company (i.e., “tipping”). Any person who communicates a “tip” is in violation of these rules and is subject to\nmonetary penalties and/or imprisonment. Each party acknowledges that communicating “material non-public information” regarding the other\nparty or any of its publicly traded Affiliates in such circumstances is strictly prohibited.\n(©) Standstill Period. Each party also agrees that for a period ending the earlier of eighteen months from the Effective\nDate and the date of a Significant Event (as defined below), neither such party nor any of its Affiliates will, without the prior written consent of\nthe other party, directly or indirectly: (1) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, any voting securities of\nthe other party or any of its Affiliates or any direct or indirect rights, options or interests with respect to any voting securities (whether by\npurchase, business combination, merger, consolidation, share exchange, joint venture or similar transaction); (2) solicit proxies or consents or\nbecome a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended\n(the “Exchange Act)) of proxies or consents with respect to securities of the other party or its Affiliates or initiate any stockholder proposal with\nrespect to the other party or its Affiliates; (3) seek to control or influence the management, board of directors or policies of the other party or any\nof its Affiliates, or take action for the purpose of convening a stockholders meeting of the other party or any of its Affiliates; (4) make any\nproposal or any public announcement relating to a tender or exchange offer for voting securities of the other party or any of its Affiliates or\nrelating to any business combination, acquisition, merger, consolidation, share exchange, sale of substantially all assets, liquidation or similar\ntransaction involving the other party, any of its voting securities or material assets or any voting securities or material assets of any of its\nAffiliates (other than the purchase and sale of assets in the ordinary course of business between the parties and their respective Affiliates), or take\nany action that would or would reasonably be expected to require the other party or any of its Affiliates to make a public announcement\nregarding any of the foregoing; (5) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Exchange Act for the\npurpose of acquiring, holding, voting or disposing of voting securities of the other party or any of its Affiliates or taking any other actions\nrestricted or prohibited under clauses (1) through (4) of this paragraph; (6) enter into any discussions, negotiations, arrangements or\nunderstandings with any third party, with respect to any of the actions restricted or prohibited under clauses (1) through (5) of this paragraph; or\n(7) knowingly advise, assist or encourage any other person in connection with any action restricted or prohibited under clauses (1) through (5) of\nthis paragraph.\nFor purposes of this Agreement, a “Significant Event” means (i) the public announcement by the other party or any of its\nAffiliates of the entry by it into a definitive agreement providing for a business combination, merger, consolidation, share exchange, sale of more\nthan 50% of its assets, liquidation or similar transaction involving such other party or any of its Affiliates or any of their securities pursuant to\nwhich at least 50% of the outstanding shares of common stock of such party or Affiliate would be converted into cash or securities of another\nperson or 50% or more of the then outstanding shares of common stock of such party or Affiliate would be owned by persons other than the then\ncurrent holders of shares of common stock of\n \nsuch party or Affiliate, or which would result in more than 50% of the assets of such party and its Affiliates taken as a whole being sold to any\nperson or (ii) the commencement by an unAffiliated third party of a tender or exchange offer to acquire beneficial ownership of 50% or more of\nthe outstanding voting securities of the other party or any of its Affiliates.\n(d) For the avoidance of doubt, it is understood and agreed that the obligations contained in this Section 5 are in addition\nto and are in no way in lieu of any other obligations that the parties may have under applicable securities laws and regulations. Each party\nhereby agrees to indemnify and hold harmless the other party and its Affiliates from and against any damage, loss, cost or liability (including\nreasonable legal fees and the cost of enforcing this indemnity) arising out of or resulting from any violation by such first party of any applicable\nsecurities laws or regulations.\n6. Entire Agreement. This Agreement constitutes the entire understanding of COMPANY and MARTEK with respect to the\nsubject matter hereof and supersedes any and all prior understandings, written or oral.\n \n7. Third Party Beneficiaries. It is understood and agreed that any breach by a party to this Agreement could have an adverse\neffect on one or more the Affiliates of the other party (in addition to the party itself). As a result, the Affiliates of each party shall be deemed to\nbe third party beneficiaries hereunder and shall have the right, as third party beneficiaries, to enforce the provisions of this Agreement against the\nother party.\n8. Governing Law. This Agreement shall be governed by the substantive laws of the State of New York located in the United\nStates (excluding choice of law rules thereof that would result in the application of the laws of another jurisdiction). Each party irrevocably\nconsents to the personal jurisdiction of, and venue in, the state and federal courts within the State of New York.\n9. Severability. The invalidity or unenforceability of any provisions hereof shall in no way affect the validity or enforceability of\nany other such provision. If any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so\nbroad as is enforceable.\n10. Injunctive Relief. Each party acknowledges and agrees that due to the unique nature of the Disclosing Party’s Confidential\nInformation and the standstill provisions of this Agreement, there can be no adequate remedy at law for any breach of a party’s obligations\nhereunder, that any such breach may result in irreparable harm to the other party, and therefore, that upon any such breach or threat thereof, the\nother party shall be entitled to seek injunctive relief to prevent such irreparable harm in addition to whatever remedies it might have at law or in\nequity.\n11. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY\nAND ALL RIGHTS TO TRIAL BY JURY IN\n \nANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FROM ANY COUNTERCLAIM THEREIN.\n12. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but both of which\ntogether shall constitute one and the same instrument.\nIN WITNESS WHEREOQF, each party hereto acknowledges that the representative named below has the authority to execute this\nAgreement on behalf of the respective party to form a legally binding contract and has caused this Agreement to be duly executed on its behalf.\nMARTEK BIOSCIENCES CORPORATION\nBy: /s/ David M. Feitel\nName: David M. Feitel\nTitle: Executive VP and General Counsel\nKONINKLIJKE DSM N.V.\nBy: /s/ Hein Schreuder\nName: Hein Schreuder\nTitle: Executive Vice President Corporate Strategy & Acquisitions\nBy: /s/ Stephan Tanda\nName:  Stephan Tanda\nTitle: Managing Board Member\n \nAmendment No. 1\nto MUTUAL CONFIDENTIALITY AGREEMENT\nbetween\nMartek Biosciences Corporation\nand\nKoninklijke DSM N.V.\nThis Amendment No. 1 to the Mutual Confidentiality Agreement (“FIRST AMENDMENT”), is made and entered into as of December 7 2010,\nbetween Martek Biosciences Corporation, a Delaware Corporation having its principal place of business at 6480 Dobbin Road, Columbia,\nMaryland 21045 (herein referred to as “MARTEK”) and Koninklijke DSM N.V., having its principal place of business at Het Overloon 1, 6401\nJH Heerlen, The Netherlands (“COMPANY™).\nWHEREAS, MARTEK and COMPANY previously entered into a Mutual Confidentiality Agreement (“AGREEMENT”) dated\nDecember 8, 2009, and\nWHEREAS, MARTEK and COMPANY desire to amend section 3 of the AGREEMENT.\nNOW THEREFORE, in consideration of the premises and of the mutual covenants of the parties hereto, each party hereby agrees with\nthe other effective as of the date first above written, to amend the AGREEMENT as follows:\n1. Section 3 of the AGREEMENT, shall be replaced in its entirety with the following:\n \nTerm of Agreement. All disclosures of Confidential Information shall be completed within two (2) years of the Effective Date,\nunless either party before such date gives notice that it no longer desires to consider such mutual strategic business\nopportunities, but the obligations of Receiving Party under Paragraph 1 shall survive the expiration or terminate of this\nAgreement.\n2. This FIRST AMENDMENT may be executed in counterparts, each of which shall be deemed an original and all of which\ntogether shall constitute one and the same FIRST AMENDMENT.\n3. All other terms and conditions of the AGREEMENT not expressly modified herein shall remain in full force and effect.\nIN WITNESS WHEREOF, the parties have each caused this FIRST AMENDMENT to be signed and delivered by their duly\nauthorized representatives as of the date first written above.\nMARTEK BIOSCIENCES CORPORATION KONINKLIJKE DSM N.V.\nBy: /s/ David M. Feitel By: /s/ Stephen Tanda\nName:  David M. Feitel Name: Stephen Tanda\nTitle: EVP and General Counsel Title: Member Managing Board\nBy: /s/ L.H. Staal\nName: L.H Staal\nTitle: President & CEO DNP\n	EX-99.(D)(2) 9 a2201585zex-99_d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nMUTUAL CONFIDENTIALITY AGREEMENT\nTHIS MUTUAL CONFIDENTIALITY AGREEMENT ("Agreement") is entered into on the\nth day of December, 2009 but with\neffect as of the 8th day of December, 2009 (the "Effective Date"), by and between MARTEK BIOSCIENCES CORPORATION\n("MARTEK"), a Delaware, U.S.A., corporation having its principal place of business at 6480 Dobbin Road, Columbia, Maryland 21045 and\nKONINKLIJKE DSM N.V. ("COMPANY"), a Dutch corporation having its principal place of business at Het Overloon 1, 6401 JH Heerlen,\nThe Netherlands.\nWITNESSETH:\nWHEREAS, MARTEK has developed proprietary technology relating to the development, manufacture and commercialization of\n(1) infant formula ingredients, pharmaceuticals, nutritional supplements, food ingredients and other high value products derived from algae,\nfungi and other sources and (2) products and processes involving metabolic engineering and molecular genetics of organisms and MARTEK is in\nownership and possession of certain Confidential Information (as defined below) related to the foregoing which MARTEK considers proprietary,\nand\nWHEREAS, such Confidential Information is an integral part of the business activities of MARTEK, and\nWHEREAS, COMPANY and its Affiliates have developed proprietary technology, knowledge and expertise relating to the\ndevelopment, manufacture and commercialization of ingredients for the food, feed and beverage industries and is in ownership and possession of\ncertain Confidential Information (as defined below) related thereto which COMPANY considers proprietary, and\nWHEREAS, such Confidential Information is an integral part of the business activities of COMPANY, and\nWHEREAS, MARTEK and COMPANY desire to discuss certain strategic business opportunities, and\nWHEREAS, each party hereto desires to review the Confidential Information of the other for the purpose of evaluating a potential\nbusiness collaboration between the parties, and\nWHEREAS, each party hereto desires to receive from the other party covenants relating to the non-disclosure and non-use of the\nConfidential Information.\nNOW, THEREFORE, in consideration of the disclosure of Confidential Information by a party hereto (the "Disclosing Party") to the\nother party (the "Receiving Party"), and the premises\nand mutual covenants and agreements contained herein, MARTEK and COMPANY, intending to be legally bound, hereby agree as follows:\n1.\nConfidential Information. The term "Confidential Information" shall include all confidential and proprietary information\nrelating to the respective products and operations of MARTEK and COMPANY that is marked confidential and disclosed by MARTEK or\nCOMPANY\nto\nthe\nother\nparty\norally,\nby\nobservation,\nin\nwriting\nor\nphotographs\nor\nthrough\nproduct\nsamples\nor\nany\nother\ntangible\nor\nintangible\nform or method; provided, however, that information disclosed orally shall be Confidential Information within the meaning of this Agreement\nonly if it is reduced to writing or other tangible form and marked confidential and submitted to the Receiving Party as soon as practicable\nthereafter but, in any event, no later than thirty (30) days after such oral disclosure. Without limiting the generality of the foregoing, Confidentia\nInformation shall include information with respect to MARTEK'S and COMPANY'S respective present and prospective products, processes\n(manufacturing and otherwise), plans, technology, trade secrets, systems, agreements, customers, financial conditions and projections, and sales\nand marketing methods.\nBoth parties hereto acknowledge that such Confidentia Information has been and will continue to be of central importance to\neach other's business and that disclosure of it to others or its use by others or by the Receiving Party, other than the use or disclosure of such\ninformation by the Receiving Party for the purposes set forth hereunder, could cause substantial loss to the Disclosing Party. Each of MARTEK\nand COMPANY accordingly agrees that the Confidential Information shall be kept confidential and shall only be used in accordance with the\nterms of this Agreement by such party, its Affiliates (as defined below) and their respective Representatives (as defined below) and, except as\nrequired by law or as expressly otherwise permitted by the terms hereof, will not be disclosed to any third party by such party, its Affiliates or\ntheir respective Representatives. The Receiving Party shall be responsible for ensuring compliance with the terms of this Agreement by its\nAffiliates and their respective Representatives. Nothing contained in this Agreement shall prevent the Disclosing Party from enforcing its rights,\nif any, under this Agreement against the Receiving Party, its Affiliates or their respective Representatives, either jointly or severally. The\nReceiving Party shall be permitted to disclose Confidentia Information only to its Affiliates, and to the directors, officers, employees, agents,\nadvisors (including attorneys, accountants and financial advisors) and prospective lenders ("Representatives") of the Receiving Party and its\nAffiliates, who have a need to know such Confidentia Information for the purposes set forth herein and only when such Representatives have\nbeen\nadvised\nof\nthe\nconfidential\nnature\nof\nthe\ninformation\nand\nof\nthe\nterms\nof\nthis\nAgreement.\nThe\nReceiving\nParty\nshall\ntreat\nany\nand\nall\nsuch\nConfidential Information in the same manner and with the same protection as it maintains for its own confidential information.\nThis obligation of confidentiality will not apply to any information to the extent that such information: (i) is known to the\nReceiving Party prior to the original disclosure of such information by the Disclosing Party to the Receiving Party, as evidenced by the Receiving\nParty's written records or otherwise; (ii) is now or later becomes generally available to the public, such as by publication or otherwise, through\nno fault of the Receiving Party; (iii) is obtained by the Receiving Party from a third party who is not known by the Receiving Party to\nbe\nprohibited\nfrom\nmaking\nsuch\na\ndisclosure;\nor\n(iv)\nis\nindependently\ndeveloped\nby\nindividual\nemployees\nof\nthe\nReceiving\nParty\nwho\nhad\nno\naccess\nto the Confidential Information of the Disclosing Party, as evidenced by the Receiving Party's written records or otherwise. Notwithstanding\nanything to the contrary herein, the parties agree that no Confidential Information will be exchanged between the parties if such exchange would\nconstitute a violation of applicable antitrust laws or regulations; provided that any such Confidentia Information may be disclosed to the\nReceiving Party's outside legal advisors on the condition that such advisors shall not disclose such Confidential Information to the Receiving\nParty except in a form or in a manner that would not constitute a violation of applicable antitrust laws or regulations. For purposes of this\nAgreement, "Affiliate" means with respect to either party hereto, any person directly or indirectly controlling, controlled by, or under common\ncontrol with, such party. A person shall be deemed to "control" another person if such person possesses, directly or indirectly, the power to direct\nor cause the direction of the management or policies of such other person, whether through ownership of voting securities, by contract or\notherwise. The term "person" as used in this Agreement shall be construed broadly to include without limitation any corporation, company,\nlimited liability company, partnership or individual.\nThe Receiving Party agrees that all such Confidentia Information disclosed to it by the Disclosing Party shall remain the\nproperty of the Disclosing Party. Any and all Confidential Information obtained by the Receiving Party shall be returned to the Disclosing Party\nor destroyed (with any such destruction certified by the Receiving Party), at the Receiving Party's option, upon the earlier of the Disclosing\nParty's request or the expiration of this Agreement, except that one copy of the Confidential Information may be retained by legal counsel of\nthe\nReceiving Party and used solely for the purpose of providing legal advice on the scope of its obligations under this Agreement and in connection\nwith any dispute arising out of or under this Agreement.\nNotwithstanding anything to the contrary herein, in the event that the Receiving Party or any Representative is requested or\nrequired, by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process, to\ndisclose Confidential Information, it is agreed that the Receiving Party or such Representative will, if legally permitted, provide the Disclosing\nParty with prompt notice of such event so that the Disclosing Party may seek a protective order or other appropriate remedy or waive compliance\nwith the applicable provisions of this Agreement by the Receiving Party or such Representative. In the event and to the extent that such\nprotective order or other remedy is not obtained and disclosure of Confidential Information is required under law, or the Disclosing Party grants a\nwaiver hereunder, the Receiving Party or such Representative, as the case may be, (i) may, without liability hereunder furnish that portion (and\nonly that portion) of the Confidential Information which, in the opinion of counsel to the Receiving Party or such Representative, as the case may\nbe, the Receiving Party or such Representative is legally\nrequired to disclose and (ii) will exercise its commercially reasonable efforts to have confidential treatment accorded any Confidential\nInformation so furnished.\n2.\nProprietary Rights; Etc. This Agreement shall in no way be construed as the granting of a license by one party hereto to\nthe\nother directly or indirectly under any patent or patent application or other form of proprietary property owned by either party hereto.\nFurthermore, nothing in this Agreement shall be interpreted so as to obligate either party to continue to evaluate mutual strategic business\nopportunities or to negotiate or enter into a further agreement with the other party to engage in any transaction.\n3.\nTerm of Agreement. All disclosures of Confidential Information shall be completed within one year of the Effective Date,\nunless either party before such date gives notice that it no longer desires to consider such mutual strategic business opportunities, but the\nobligations of Receiving Party under Paragraph 1 shall survive for a period of five years from the Effective Date.\n4.\nDelivery of Confidential Information; Notices. In the case of COMPANY, all Confidential Information shall be provided to,\nand any notices, requests, demands or other communications provided for by this Agreement shall be sufficient if in writing and if sent by\nregistered or certified mail to the attention of, Mr. Gertjan de Koning at the address of COMPANY set forth above or at such other address as\nCOMPANY has filed in writing with MARTEK. In the case of MARTEK, all Confidential Information shall be provided to, and any notices,\nrequests, demands or other communications provided for by this Agreement shall be sufficient if in writing and if sent by registered or certified\nmail to the attention of, David M. Feitel, Esq. at the address of MARTEK set forth above or at such other address as MARTEK has filed in\nwriting with COMPANY.\n5.\nSecurities Laws Compliance. Each party acknowledges and agrees that it will comply with all applicable securities laws,\nincluding without limitation, the following:\n(a)\nInsider Information. The Federal securities laws of the U.S. strictly prohibit the purchase or sale of a publicly held\nsecurity by persons who are in the possession of "'material non-public information" relating to that security. Generally, "material non-public\ninformation" is information (i) which is possessed by a person by virtue of a special relationship between such person and a company whose\nsecurities are publicly-held, such as a relationship that a recipient of confidential information may have with such a company, and (ii) which\nwould be considered important by a person in considering whether to buy or sell the securities of such a company. Each party acknowledges\nthat\ntrading in the securities of the other party, or of any publicly traded Affiliate of the other party, when in possession of "material non-public\ninformation" regarding the other party or any such Affiliate is strictly prohibited.\n(b)\nTipping. The Federal securities laws of the U.S. also prohibit a person from communicating "material non-public\ninformation" to a third party in circumstances in which it is reasonably likely that such person will use such information in dealing with the\nsecurities of a publicly held company (i.e., "tipping"). Any person who communicates a "tip" is in violation of these rules and is subject to\nmonetary penalties and/or imprisonment. Each party acknowledges that communicating "material non-public information" regarding the other\nparty or any of its publicly traded Affiliates in such circumstances is strictly prohibited.\n(c)\nStandstill Period. Each party also agrees that for a period ending the earlier of eighteen months from the Effective\nDate and the date of a Significant Event (as defined below), neither such party nor any of its Affiliates will, without the prior written consent of\nthe other party, directly or indirectly: (1) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, any voting securities of\nthe other party or any of its Affiliates or any direct or indirect rights, options or interests with respect to any voting securities (whether by\npurchase, business combination, merger, consolidation, share exchange, joint venture or similar transaction); (2) solicit proxies or consents or\nbecome a "participant" in a "solicitation" (as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended\n(the "Exchange Act")) of proxies or consents with respect to securities of the other party or its Affiliates or initiate any stockholder proposal with\nrespect to the other party or its Affiliates; (3) seek to control or influence the management, board of directors or policies of the other party or\nany\nof its Affiliates, or take action for the purpose of convening a stockholders meeting of the other party or any of its Affiliates; (4) make any\nproposal or any public announcement relating to a tender or exchange offer for voting securities of the other party or any of its Affiliates or\nrelating to any business combination, acquisition, merger, consolidation, share exchange, sale of substantially all assets, liquidation or similar\ntransaction involving the other party, any of its voting securities or material assets or any voting securities or material assets of any of its\nAffiliates (other than the purchase and sale of assets in the ordinary course of business between the parties and their respective Affiliates), or take\nany action that would or would reasonably be expected to require the other party or any of its Affiliates to make a public announcement\nregarding any of the foregoing; (5) form, join or in any way participate in a "group" as defined in Section 13(d)(3) of the Exchange Act for the\npurpose of acquiring, holding, voting or disposing of voting securities of the other party or any of its Affiliates or taking any other actions\nrestricted or prohibited under clauses (1) through (4) of this paragraph; (6) enter into any discussions, negotiations, arrangements or\nunderstandings with any third party, with respect to any of the actions restricted or prohibited under clauses (1) through (5) of this paragraph;\nor\n(7) knowingly advise, assist or encourage any other person in connection with any action restricted or prohibited under clauses (1) through (5) of\nthis paragraph.\nFor purposes of this Agreement, a "Significant Event" means (i) the public announcement by the other party or any of its\nAffiliates of the entry by it into a definitive agreement providing for a business combination, merger, consolidation, share exchange, sale of more\nthan 50% of its assets, liquidation or similar transaction involving such other party or any of its Affiliates or any of their securities pursuant\nto\nwhich\nat\nleast\n50%\nof\nthe\noutstanding\nshares\nof\ncommon\nstock\nof\nsuch\nparty\nor\nAffiliate\nwould\nbe\nconverted\ninto\ncash\nor\nsecurities\nof\nanother\nperson or 50% or more of the then outstanding shares of common stock of such party or Affiliate would be owned by persons other than the then\ncurrent holders of shares of common stock of\nsuch party or Affiliate, or which would result in more than 50% of the assets of such party and its Affiliates taken as a whole being sold to any\nperson\nor\n(ii)\nthe\ncommencement\nby\nan\nnAffiliated\nthird\nparty\nof\na\ntender\nor\nexchange\noffer\nto\nacquire\nbeneficial\nownership\nof\n50%\nor\nmore\nof\nthe outstanding voting securities of the other party or any of its Affiliates.\n(d)\nFor the avoidance of doubt, it is understood and agreed that the obligations contained in this Section 5 are in addition\nto and are in no way in lieu of any other obligations that the parties may have under applicable securities laws and regulations. Each party\nhereby agrees to indemnify and hold harmless the other party and its Affiliates from and against any damage, loss, cost or liability (including\nreasonable legal fees and the cost of enforcing this indemnity) arising out of or resulting from any violation by such first party of any applicable\nsecurities laws or regulations.\n6.\nEntire Agreement. This Agreement constitutes the entire understanding of COMPANY and MARTEK with respect to the\nsubject matter hereof and supersedes any and all prior understandings, written or oral.\n7.\nThird\nParty\nBeneficiaries.\nIt\nis\nunderstood\nand\nagreed\nthat\nany\nbreach\nby\na\nparty\nto\nthis\nAgreement\ncould\nhave\nan\nadverse\neffect on one or more the Affiliates of the other party (in addition to the party itself). As a result, the Affiliates of each party shall be deemed to\nbe third party beneficiaries hereunder and shall have the right, as third party beneficiaries, to enforce the provisions of this Agreement against the\nother party.\n8.\nGoverning Law. This Agreement shall be governed by the substantive laws of the State of New York located in the United\nStates (excluding choice of law rules thereof that would result in the application of the laws of another jurisdiction). Each party irrevocably\nconsents to the personal jurisdiction of, and venue in, the state and federal courts within the State of New York.\n9.\nSeverability.. The invalidity or unenforceability of any provisions hereof shall in no way affect the validity or enforceability of\nany other such provision. If any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so\nbroad as is enforceable.\n10. Injunctive Relief. Each party acknowledges and agrees that due to the unique nature of the Disclosing Party's Confidential\nInformation and the standstill provisions of this Agreement, there can be no adequate remedy at law for any breach of a party's obligations\nhereunder, that any such breach may result in irreparable harm to the other party, and therefore, that upon any such breach or threat thereof, the\nother party shall be entitled to seek injunctive relief to prevent such irreparable harm in addition to whatever remedies it might have at law or in\nequity.\n11.\nWaiver of Jury. Trial. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY\nAND ALL RIGHTS TO TRIAL BY JURY IN\nANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FROM ANY COUNTERCLAIM THEREIN.\n12.\nCounterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but both of which\ntogether shall constitute one and the same instrument.\nIN WITNESS WHEREOF, each party hereto acknowledges that the representative named below has the authority to execute this\nAgreement on behalf of the respective party to form a legally binding contract and has caused this Agreement to be duly executed on its behalf.\nMARTEK BIOSCIENCES CORPORATION\nBy:\n/s/ David M. Feitel\nName: David M. Feitel\nTitle:\nExecutive VP and General Counsel\nKONINKLIJKE DSM N.V.\nBy:\n/s/ Hein Schreuder\nName:\nHein Schreuder\nTitle:\nExecutive Vice President Corporate Strategy & Acquisitions\nBy:\n/s/ Stephan Tanda\nName: Stephan Tanda\nTitle:\nManaging Board Member\nAmendment No. 1\nto MUTUAL CONFIDENTIALITY AGREEMENT\nbetween\nMartek Biosciences Corporation\nand\nKoninklijke DSM N.V.\nThis Amendment No. 1 to the Mutual Confidentiality Agreement ("FIRST AMENDMENT"), is made and entered into as of December 7 2010,\nbetween Martek Biosciences Corporation, a Delaware Corporation having its principal place of business at 6480 Dobbin Road, Columbia,\nMaryland 21045 (herein referred to as "MARTEK") and Koninklijke DSM N.V., having its principal place of business at Het Overloon 1, 6401\nJH Heerlen, The Netherlands ("COMPANY").\nWHEREAS, MARTEK and COMPANY previously entered into a Mutual Confidentiality Agreement ("AGREEMENT") dated\nDecember 8, 2009, and\nWHEREAS, MARTEK and COMPANY desire to amend section 3 of the AGREEMENT.\nNOW THEREFORE, in consideration of the premises and of the mutual covenants of the parties hereto, each party hereby agrees with\nthe other effective as of the date first above written, to amend the AGREEMENT as follows:\n1.\nSection 3 of the AGREEMENT, shall be replaced in its entirety with the following:\nTerm of Agreement. All disclosures of Confidential Information shall be completed within two (2) years of the Effective Date,\nunless either party before such date gives notice that it no longer desires to consider such mutual strategic business\nopportunities, but the obligations of Receiving Party under Paragraph 1 shall survive the expiration or terminate of this\nAgreement.\n2.\nThis FIRST AMENDMENT may be executed in counterparts, each of which shall be deemed an original and all of which\ntogether shall constitute one and the same FIRST AMENDMENT.\n3.\nAll other terms and conditions of the AGREEMENT not expressly modified herein shall remain in full force and effect.\nIN WITNESS WHEREOF, the parties have each caused this FIRST AMENDMENT to be signed and delivered by their duly\nauthorized representatives as of the date first written above.\nMARTEK BIOSCIENCES CORPORATION\nKONINKLIJKE DSM N.V.\nBy:\n/s/ David M. Feitel\nBy:\n/s/ Stephen Tanda\nName:\nDavid M. Feitel\nName:\nStephen Tanda\nTitle:\nEVP and General Counsel\nTitle:\nMember Managing Board\nBy:\n/s/ L.H. Staal\nName:\nL.H Staal\nTitle:\nPresident & CEO DNP	EX-99.(D)(2) 9 a2201585zex-99 _d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nMUTUAL CONFIDENTIALITY AGREEMENT\nTHIS MUTUAL CONFIDENTIALITY AGREEMENT (“Agreement”) is entered into on the\nday of December, 2009 but with\neffect as of the 8th day of December, 2009 (the “Effective Date”), by and between MARTEK BIOSCIENCES CORPORATION\n(“MARTEK”), a Delaware, U.S .A., corporation having its principal place of business at 6480 Dobbin Road, Columbia, Maryland 21045 and\nKONINKLIJKE DSM N.V. (“COMPANY”), a Dutch corporation having its principal place of business at Het Overloon 1, 6401 JH Heerlen,\nThe Netherlands.\nWITNESSETH:\nWHEREAS, MARTEK has developed proprietary technology relating to the development, manufacture and commercialization of\n(1) infant formula ingredients, pharmaceuticals, nutritional supplements, food ingredients and other high value products derived from algae,\nfungi and other sources and (2) products and processes involving metabolic engineering and molecular genetics of organisms and MARTEK is in\nownership and possession of certain Confidential Information (as defined below) related to the foregoing which MARTEK considers proprietary,\nand\nWHEREAS, such Confidential Information is an integral part of the business activities of MARTEK, and\nWHEREAS, COMPANY and its Affiliates have developed proprietary technology, knowledge and expertise relating to the\ndevelopment, manufacture and commercialization of ingredients for the food, feed and beverage industries and is in ownership and possession of\ncertain Confidential Information (as defined below) related thereto which COMPANY considers proprietary, and\nWHEREAS, such Confidential Information is an integral part of the business activities of COMPANY, and\nWHEREAS, MARTEK and COMPANY desire to discuss certain strategic business opportunities, and\nWHEREAS, each party hereto desires to review the Confidential Information of the other for the purpose of evaluating a potential\nbusiness collaboration between the parties, and\nWHEREAS, each party hereto desires to receive from the other party covenants relating to the non-disclosure and non-use of the\nConfidential Information.\nNOW, THEREFORE, in consideration of the disclosure of Confidential Information by a party hereto (the “Disclosing Party”) to the\nother party (the “Receiving Party”), and the premises\nand mutual covenants and agreements contained herein, MARTEK and COMPANY, intending to be legally bound, hereby agree as follows:\n1.\nConfidential Information. The term “Confidential Information” shall include all confidential and proprietary information\nrelating to the respective products and operations of MARTEK and COMPANY that is marked confidential and disclosed by MARTEK or\nCOMPANY to the other party orally, by observation, in writing or photographs or through product samples or any other tangible or intangible\nform or method; provided, however, that information disclosed orally shall be Confidential Information within the meaning of this Agreement\nonly if it is reduced to writing or other tangible form and marked confidential and submitted to the Receiving Party as soon as practicable\nthereafter but, in any event, no later than thirty (30) days after such oral disclosure. Without limiting the generality of the foregoing, Confidential\nInformation shall include information with respect to MARTEK’s and COMPANY’s respective present and prospective products, processes\n(manufacturing and otherwise), plans, technology, trade secrets, systems, agreements, customers, financial conditions and projections, and sales\nand marketing methods.\nBoth parties hereto acknowledge that such Confidential Information has been and will continue to be of central importance to\neach other’s business and that disclosure of it to others or its use by others or by the Receiving Party, other than the use or disclosure of such\ninformation by the Receiving Party for the purposes set forth hereunder, could cause substantial loss to the Disclosing Party. Each of MARTEK\nand COMPANY accordingly agrees that the Confidential Information shall be kept confidential and shall only be used in accordance with the\nterms of this Agreement by such party, its Affiliates (as defined below) and their respective Representatives (as defined below) and, except as\nrequired by law or as expressly otherwise permitted by the terms hereof, will not be disclosed to any third party by such party, its Affiliates or\ntheir respective Representatives. The Receiving Party shall be responsible for ensuring compliance with the terms of this Agreement by its\nAffiliates and their respective Representatives. Nothing contained in this Agreement shall prevent the Disclosing Party from enforcing its rights,\nif any, under this Agreement against the Receiving Party, its Affiliates or their respective Representatives, either jointly or severally. The\nReceiving Party shall be permitted to disclose Confidential Information only to its Affiliates, and to the directors, officers, employees, agents,\nadvisors (including attorneys, accountants and financial advisors) and prospective lenders (“Representatives”) of the Receiving Party and its\nAffiliates, who have a need to know such Confidential Information for the purposes set forth herein and only when such Representatives have\nbeen advised of the confidential nature of the information and of the terms of this Agreement. The Receiving Party shall treat any and all such\nConfidential Information in the same manner and with the same protection as it maintains for its own confidential information.\nth\nThis obligation of confidentiality will not apply to any information to the extent that such information: (i) is known to the\nReceiving Party prior to the original disclosure of such information by the Disclosing Party to the Receiving Party, as evidenced by the Receiving\nParty’s written records or otherwise; (ii) is now or later becomes generally available to the public, such as by publication or otherwise, through\nno fault of the Receiving Party; (iii) is obtained by the Receiving Party from a third party who is not known by the Receiving Party to be\nprohibited from making such a disclosure; or (iv) is independently developed by individual employees of the Receiving Party who had no access\nto the Confidential Information of the Disclosing Party, as evidenced by the Receiving Party’s written records or otherwise. Notwithstanding\nanything to the contrary herein, the parties agree that no Confidential Information will be exchanged between the parties if such exchange would\nconstitute a violation of applicable antitrust laws or regulations; provided that any such Confidential Information may be disclosed to the\nReceiving Party’s outside legal advisors on the condition that such advisors shall not disclose such Confidential Information to the Receiving\nParty except in a form or in a manner that would not constitute a violation of applicable antitrust laws or regulations. For purposes of this\nAgreement, “Affiliate” means with respect to either party hereto, any person directly or indirectly controlling, controlled by, or under common\ncontrol with, such party. A person shall be deemed to “control” another person if such person possesses, directly or indirectly, the power to direct\nor cause the direction of the management or policies of such other person, whether through ownership of voting securities, by contract or\notherwise. The term “person” as used in this Agreement shall be construed broadly to include without limitation any corporation, company,\nlimited liability company, partnership or individual.\nThe Receiving Party agrees that all such Confidential Information disclosed to it by the Disclosing Party shall remain the\nproperty of the Disclosing Party. Any and all Confidential Information obtained by the Receiving Party shall be returned to the Disclosing Party\nor destroyed (with any such destruction certified by the Receiving Party), at the Receiving Party’s option, upon the earlier of the Disclosing\nParty’s request or the expiration of this Agreement, except that one copy of the Confidential Information may be retained by legal counsel of the\nReceiving Party and used solely for the purpose of providing legal advice on the scope of its obligations under this Agreement and in connection\nwith any dispute arising out of or under this Agreement.\nNotwithstanding anything to the contrary herein, in the event that the Receiving Party or any Representative is requested or\nrequired, by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process, to\ndisclose Confidential Information, it is agreed that the Receiving Party or such Representative will, if legally permitted, provide the Disclosing\nParty with prompt notice of such event so that the Disclosing Party may seek a protective order or other appropriate remedy or waive compliance\nwith the applicable provisions of this Agreement by the Receiving Party or such Representative. In the event and to the extent that such\nprotective order or other remedy is not obtained and disclosure of Confidential Information is required under law, or the Disclosing Party grants a\nwaiver hereunder, the Receiving Party or such Representative, as the case may be, (i) may, without liability hereunder furnish that portion (and\nonly that portion) of the Confidential Information which, in the opinion of counsel to the Receiving Party or such Representative, as the case may\nbe, the Receiving Party or such Representative is legally\nrequired to disclose and (ii) will exercise its commercially reasonable efforts to have confidential treatment accorded any Confidential\nInformation so furnished.\n2.\nProprietary Rights; Etc. This Agreement shall in no way be construed as the granting of a license by one party hereto to the\nother directly or indirectly under any patent or patent application or other form of proprietary property owned by either party hereto.\nFurthermore, nothing in this Agreement shall be interpreted so as to obligate either party to continue to evaluate mutual strategic business\nopportunities or to negotiate or enter into a further agreement with the other party to engage in any transaction.\n3.\nTerm of Agreement. All disclosures of Confidential Information shall be completed within one year of the Effective Date,\nunless either party before such date gives notice that it no longer desires to consider such mutual strategic business opportunities, but the\nobligations of Receiving Party under Paragraph 1 shall survive for a period of five years from the Effective Date.\n4.\nDelivery of Confidential Information; Notices. In the case of COMPANY, all Confidential Information shall be provided to,\nand any notices, requests, demands or other communications provided for by this Agreement shall be sufficient if in writing and if sent by\nregistered or certified mail to the attention of, Mr. Gertjan de Koning at the address of COMPANY set forth above or at such other address as\nCOMPANY has filed in writing with MARTEK. In the case of MARTEK, all Confidential Information shall be provided to, and any notices,\nrequests, demands or other communications provided for by this Agreement shall be sufficient if in writing and if sent by registered or certified\nmail to the attention of, David M. Feitel, Esq. at the address of MARTEK set forth above or at such other address as MARTEK has filed in\nwriting with COMPANY.\n5.\nSecurities Laws Compliance. Each party acknowledges and agrees that it will comply with all applicable securities laws,\nincluding without limitation, the following:\n(a)\nInsider Information. The Federal securities laws of the U.S. strictly prohibit the purchase or sale of a publicly held\nsecurity by persons who are in the possession of “material non-public information” relating to that security. Generally, “material non-public\ninformation” is information (i) which is possessed by a person by virtue of a special relationship between such person and a company whose\nsecurities are publicly-held, such as a relationship that a recipient of confidential information may have with such a company, and (ii) which\nwould be considered important by a person in considering whether to buy or sell the securities of such a company. Each party acknowledges that\ntrading in the securities of the other party, or of any publicly traded Affiliate of the other party, when in possession of “material non-public\ninformation” regarding the other party or any such Affiliate is strictly prohibited.\n(b)\nTipping. The Federal securities laws of the U.S. also prohibit a person from communicating “material non-public\ninformation” to a third party in circumstances in which it is reasonably likely that such person will use such information in dealing with the\nsecurities of a publicly held company (i.e ., “tipping”). Any person who communicates a “tip” is in violation of these rules and is subject to\nmonetary penalties and/or imprisonment. Each party acknowledges that communicating “material non-public information” regarding the other\nparty or any of its publicly traded Affiliates in such circumstances is strictly prohibited.\n(c)\nStandstill Period. Each party also agrees that for a period ending the earlier of eighteen months from the Effective\nDate and the date of a Significant Event (as defined below), neither such party nor any of its Affiliates will, without the prior written consent of\nthe other party, directly or indirectly: (1) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, any voting securities of\nthe other party or any of its Affiliates or any direct or indirect rights, options or interests with respect to any voting securities (whether by\npurchase, business combination, merger, consolidation, share exchange, joint venture or similar transaction); (2) solicit proxies or consents or\nbecome a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended\n(the “Exchange Act”)) of proxies or consents with respect to securities of the other party or its Affiliates or initiate any stockholder proposal with\nrespect to the other party or its Affiliates; (3) seek to control or influence the management, board of directors or policies of the other party or any\nof its Affiliates, or take action for the purpose of convening a stockholders meeting of the other party or any of its Affiliates; (4) make any\nproposal or any public announcement relating to a tender or exchange offer for voting securities of the other party or any of its Affiliates or\nrelating to any business combination, acquisition, merger, consolidation, share exchange, sale of substantially all assets, liquidation or similar\ntransaction involving the other party, any of its voting securities or material assets or any voting securities or material assets of any of its\nAffiliates (other than the purchase and sale of assets in the ordinary course of business between the parties and their respective Affiliates), or take\nany action that would or would reasonably be expected to require the other party or any of its Affiliates to make a public announcement\nregarding any of the foregoing; (5) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Exchange Act for the\npurpose of acquiring, holding, voting or disposing of voting securities of the other party or any of its Affiliates or taking any other actions\nrestricted or prohibited under clauses (1) through (4) of this paragraph; (6) enter into any discussions, negotiations, arrangements or\nunderstandings with any third party, with respect to any of the actions restricted or prohibited under clauses (1) through (5) of this paragraph; or\n(7) knowingly advise, assist or encourage any other person in connection with any action restricted or prohibited under clauses (1) through (5) of\nthis paragraph.\nFor purposes of this Agreement, a “Significant Event” means (i) the public announcement by the other party or any of its\nAffiliates of the entry by it into a definitive agreement providing for a business combination, merger, consolidation, share exchange, sale of more\nthan 50% of its assets, liquidation or similar transaction involving such other party or any of its Affiliates or any of their securities pursuant to\nwhich at least 50% of the outstanding shares of common stock of such party or Affiliate would be converted into cash or securities of another\nperson or 50% or more of the then outstanding shares of common stock of such party or Affiliate would be owned by persons other than the then\ncurrent holders of shares of common stock of\nsuch party or Affiliate, or which would result in more than 50% of the assets of such party and its Affiliates taken as a whole being sold to any\nperson or (ii) the commencement by an unAffiliated third party of a tender or exchange offer to acquire beneficial ownership of 50% or more of\nthe outstanding voting securities of the other party or any of its Affiliates.\n(d)\nFor the avoidance of doubt, it is understood and agreed that the obligations contained in this Section 5 are in addition\nto and are in no way in lieu of any other obligations that the parties may have under applicable securities laws and regulations. Each party\nhereby agrees to indemnify and hold harmless the other party and its Affiliates from and against any damage, loss, cost or liability (including\nreasonable legal fees and the cost of enforcing this indemnity) arising out of or resulting from any violation by such first party of any applicable\nsecurities laws or regulations.\n6.\nEntire Agreement. This Agreement constitutes the entire understanding of COMPANY and MARTEK with respect to the\nsubject matter hereof and supersedes any and all prior understandings, written or oral.\n7.\nThird Party Beneficiaries. It is understood and agreed that any breach by a party to this Agreement could have an adverse\neffect on one or more the Affiliates of the other party (in addition to the party itself). As a result, the Affiliates of each party shall be deemed to\nbe third party beneficiaries hereunder and shall have the right, as third party beneficiaries, to enforce the provisions of this Agreement against the\nother party.\n8.\nGoverning Law. This Agreement shall be governed by the substantive laws of the State of New York located in the United\nStates (excluding choice of law rules thereof that would result in the application of the laws of another jurisdiction). Each party irrevocably\nconsents to the personal jurisdiction of, and venue in, the state and federal courts within the State of New York.\n9.\nSeverability. The invalidity or unenforceability of any provisions hereof shall in no way affect the validity or enforceability of\nany other such provision. If any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so\nbroad as is enforceable.\n10.\nInjunctive Relief. Each party acknowledges and agrees that due to the unique nature of the Disclosing Party’s Confidential\nInformation and the standstill provisions of this Agreement, there can be no adequate remedy at law for any breach of a party’s obligations\nhereunder, that any such breach may result in irreparable harm to the other party, and therefore, that upon any such breach or threat thereof, the\nother party shall be entitled to seek injunctive relief to prevent such irreparable harm in addition to whatever remedies it might have at law or in\nequity.\n11.\nWaiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY\nAND ALL RIGHTS TO TRIAL BY JURY IN\nANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FROM ANY COUNTERCLAIM THEREIN.\n12.\nCounterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but both of which\ntogether shall constitute one and the same instrument.\nIN WITNESS WHEREOF, each party hereto acknowledges that the representative named below has the authority to execute this\nAgreement on behalf of the respective party to form a legally binding contract and has caused this Agreement to be duly executed on its behalf.\nMARTEK BIOSCIENCES CORPORATION\nBy:\n/s/ David M. Feitel\nName: David M. Feitel\nTitle:\nExecutive VP and General Counsel\nKONINKLIJKE DSM N.V.\nBy:\n/s/ Hein Schreuder\nName: Hein Schreuder\nTitle:\nExecutive Vice President Corporate Strategy & Acquisitions\nBy:\n/s/ Stephan Tanda\nName: Stephan Tanda\nTitle:\nManaging Board Member\nAmendment No. 1\nto MUTUAL CONFIDENTIALITY AGREEMENT\nbetween\nMartek Biosciences Corporation\nand\nKoninklijke DSM N.V.\nThis Amendment No. 1 to the Mutual Confidentiality Agreement (“FIRST AMENDMENT”), is made and entered into as of December 7 2010,\nbetween Martek Biosciences Corporation, a Delaware Corporation having its principal place of business at 6480 Dobbin Road, Columbia,\nMaryland 21045 (herein referred to as “MARTEK”) and Koninklijke DSM N.V., having its principal place of business at Het Overloon 1, 6401\nJH Heerlen, The Netherlands (“COMPANY”).\nWHEREAS, MARTEK and COMPANY previously entered into a Mutual Confidentiality Agreement (“AGREEMENT”) dated\nDecember 8, 2009, and\nWHEREAS, MARTEK and COMPANY desire to amend section 3 of the AGREEMENT.\nNOW THEREFORE, in consideration of the premises and of the mutual covenants of the parties hereto, each party hereby agrees with\nthe other effective as of the date first above written, to amend the AGREEMENT as follows:\n1.\nSection 3 of the AGREEMENT, shall be replaced in its entirety with the following:\nTerm of Agreement. All disclosures of Confidential Information shall be completed within two (2) years of the Effective Date,\nunless either party before such date gives notice that it no longer desires to consider such mutual strategic business\nopportunities, but the obligations of Receiving Party under Paragraph 1 shall survive the expiration or terminate of this\nAgreement.\n2.\nThis FIRST AMENDMENT may be executed in counterparts, each of which shall be deemed an original and all of which\ntogether shall constitute one and the same FIRST AMENDMENT.\n3.\nAll other terms and conditions of the AGREEMENT not expressly modified herein shall remain in full force and effect.\nIN WITNESS WHEREOF, the parties have each caused this FIRST AMENDMENT to be signed and delivered by their duly\nauthorized representatives as of the date first written above.\nMARTEK BIOSCIENCES CORPORATION\nKONINKLIJKE DSM N.V.\nBy:\n/s/ David M. Feitel\nBy:\n/s/ Stephen Tanda\nName:\nDavid M. Feitel\nName:\nStephen Tanda\nTitle:\nEVP and General Counsel\nTitle:\nMember Managing Board\nBy:\n/s/ L.H. Staal\nName:\nL.H Staal\nTitle:\nPresident & CEO DNP
a379d8a70e3f5c317078e4cb92bec8f0.pdf	effective_date jurisdiction party term	NON-DISCLOSURE AGREEMENT\nRELATING TO [***]\nThis Non Disclosure Agreement (hereinafter called the "NDA") is made on this 15th day of December 2017.\nBETWEEN\nAIRBUS S.A.S., a French société par actions simplifiée, with its registered office at 2, rond-point Emile Dewoitine, 31700 Blagnac,\nFrance, registered with the Commercial and Companies Register of Toulouse under number 383 474 814 (hereinafter referred to as\n"Airbus")\nAND\nDelta Air Lines, Inc., incorporated under the laws of Delaware, with offices at 1050 Delta Boulevard, Atlanta GE 30320\n(hereinafter referred to as the "Company")\n(Each of them hereinafter referred to as "Party" or together as "Parties")\nWHEREAS:\nThe Company and the Buyer have entered into an Airbus A321 NEO Aircraft Purchase Agreement of even date herewith (the\n“Agreement”) which covers, among other matters, the sale by the Seller and the purchase by the Buyer of certain Aircraft, under the\nterms and conditions set forth in said Agreement.\nA.\nAs part of its commitment in the Agreement, Airbus has agreed to [***]\nC\nIn order to protect any such information, the Parties have decided to enter into this NDA. For avoidance of doubt, the\nAirbus Companies shall not be deemed to be third parties and any such information may freely circulate among them.\nNOW IT IS HEREBY AGREED AS FOLLOWS:\n1.\nDEFINITIONS\nIn this NDA and unless otherwise defined herein, the following terms shall have the meanings set out below:\n“Airbus Companies”\nmeans Airbus S.A.S or its affiliates\n"Confidential Information"\nmeans any proprietary, confidential and sensitive commercial or technical information disclosed by\nthe Disclosing Party (as defined below) to the Receiving Party (as defined below) in relation to or\nin anyway connected with the [***]\nFor avoidance of doubt, all and any version of Airbus specifications shall be considered as Confidential\nInformation.\n"Disclosing Party" means Airbus;\n"Employees"\nmeans the employees, officers, directors, and agents of the Receiving Party;\n"Receiving Party" means the Company.\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [***]\n[***] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.\n2.\nOBLIGATIONS OF THE RECEIVING PARTY\nIn consideration of its receipt of the Confidential Information from the Disclosing Party, the Receiving Party shall:\n(a)\nTreat all Confidential Information received from the Disclosing Party as proprietary and confidential and unless\nexpressly authorized in writing to do so by the Disclosing Party, shall not disclose any Confidential Information to\nthird parties (except as provided herein) and shall only use such Confidential Information for purposes relating to\nthe support of its own operations and network planning activities. .\n(b) Only disseminate Confidential Information to Employees to the extent that such Employees have a demonstrable\nneed to know the same in order to carry out their tasks in relation to the Project;\n(c)\nEnsure that all Employees who have access to Confidential Information are made aware of the confidential nature\nof the Confidential Information and of the obligations contained in this NDA;\n(d) Promptly notify the Disclosing Party if it becomes aware of a breach of any provision of this NDA by any of its\nEmployees and take all the necessary measures to ensure that the disclosures in breach of this NDA cease\nimmediately;\n(e)\nExcept as authorized in writing by the Disclosing Party, only use, copy or reduce Confidential Information into\ntangible, visible or recorded form as is strictly necessary for the performance of the Project;\n(f)\nProtect the Confidential Information with at least the same degree of care as it uses to protect its own Confidential\nInformation but in no instance shall such standard be less than reasonable care;\n(g) Not remove, alter or deface any designations relating to the confidential or proprietary nature of the Confidential\nInformation;\n3. LIMITS TO OBLIGATIONS ON THE RECEIVING PARTY\n3.1\nThe obligations contained in Article 2 above shall not apply to Confidential Information:\n(a)\nWhich is in the public domain at the time of disclosure or becomes part of the public domain after disclosure\notherwise than through a breach of this NDA; or\n(b)\nFor which the Receiving Party can provide evidence that it was in its lawful possession prior to disclosure to it by\nthe Disclosing Party or which is lawfully and bona fide obtained thereafter by the Receiving Party from a third\nparty who, to the knowledge or reasonable belief of the Receiving Party, did not receive such information directly\nor indirectly from the Disclosing Party when under a duty of confidentiality; or\n(c)\nFor which the Receiving Party can provide proof that it was independently developed by the Receiving Party\nwithout prior knowledge of any Confidential Information obtained from the Disclosing Party.\n3.2\nThe obligations contained in Article 2 shall not apply to a specific disclosure of Confidential Information if such disclosure\nmeets one of the following conditions:\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [***]\n[***] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.\n(a)\nIt has to be disclosed by reason of a governmental or judicial order or applicable law. In such a case, the Party\nhaving received such an order or being subject to such applicable law shall promptly inform the Disclosing Party of\nits obligation to disclose Confidential Information if possible prior to such disclosure and consult the Disclosing\nParty on the advisability of taking steps to limit the disclosure. If the Disclosing Party wishes to counter such order\nor applicable law, the Receiving Party shall provide reasonable assistance to it in doing so, at the Disclosing Party’s\nexpense, provided that neither such time to consult, nor such reasonable assistance, shall compromise the obligation\nof the Party having received such an order to respond to such governmental or judicial order; or\n(b) It is further disclosed by the Receiving Party in confidence to any third party with the prior written consent of the\nDisclosing Party.\n4. PROPRIETARY RIGHTS\nExcept as expressly stated in writing by the Disclosing Party, neither the disclosure pursuant to this NDA of Confidential\nInformation nor anything contained in this NDA shall be construed as expressly or implicitly granting any rights to the\nReceiving Party in respect of any patent, copyright, license or other intellectual property right in force and belonging to or\ndisclosed by, the Disclosing Party.\n5. PROVISIONS IN CASE OF BREACH\n(a)\nTermination\nIf the Receiving Party has committed a breach of any provision of this NDA, the Disclosing Party shall have the\nright to terminate forthwith this NDA by written notice thereof and without prejudice to any other right, claim or\nremedy it may have at law or in contract. The Receiving Party shall, upon request from and at the discretion of the\nDisclosing Party, immediately return or destroy all copies of Confidential Information disclosed under or in relation\nto this NDA. All Confidential information disclosed between the parties before such termination shall remain\nconfidential.\n(b)\nTraditional Remedies\nIn that situation, both parties keep their usual rights to seek remedies for their damages incurred by such violation\nby the Receiving Party or its representative(s).\n(c)\nParties will be entitled to use other legal remedies available including, but not limited to injunction.\n6. NO WAIVER\nThe Receiving Party agrees that no failure nor any delay in exercising on the part of the Disclosing Party any right or\nremedy under this NDA shall operate as a waiver thereof (in whole or in part), nor shall any single or partial exercise of any\nright or remedy prevent any further, future or other exercise thereof or any other right or remedy. The rights and remedies\nexisting by virtue of this NDA shall be cumulative and not exclusive of any rights or remedies provided by law.\n7. DURATION OF THIS NDA\n(a)\nThis NDA shall commence on the date first above written and shall continue for [***] or until both Parties agree in\nwriting that such NDA is no longer needed and decide to cease it. Notwithstanding the termination of the NDA, all\nConfidential information that will have been disclosed prior to the date of termination shall remain confidential\nexcept if such information ceases to be confidential for the reasons mentioned in Article 3 above.\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [***]\n[***] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.\n(b) Upon termination each Party shall, upon request of the other Party, return, at the requester’s costs, or destroy any\nConfidential Information received by the other Party.\n8. MISCELLANEOUS\n(a)\nNeither Party shall publicly release any information relating to this NDA and the result of the discussions without\nthe prior written consent of the other Party.\n(b)\nThe invalidity, illegality or unenforceability of any provision of this NDA under any jurisdiction shall not affect the\nvalidity, legality or enforceability of any other provision hereof.\n(c)\nEach Party shall promptly advise the other in the event that it becomes aware of the possession, use or knowledge\nof any Confidential Information by any third party not authorized to possess, use or have such knowledge.\n9. GOVERNING LAW AND ARBITRATION\n9.1\nTHIS NDA SHALL BE GOVERNED BY AND CONSTRUED AND THE PERFORMANCE THEREOF SHALL BE\nDETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING\nEFFECT TO ITS CONFLICTS OF LAWS PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF THE\nLAW OF ANY OTHER JURISDICTION.\n9.2\nEach of the Company and Airbus (i) hereby irrevocably submits itself to the exclusive jurisdiction of the courts sitting in\nthe Borough of Manhattan, New York County, New York, for the purposes of any suit, action or other proceeding arising\nout of this Agreement, the subject matter hereof or any of the transactions contemplated hereby brought by any party or\nparties hereto, and (ii) hereby waives, and agrees not to assert, by way of motion, as a defence or otherwise, in any such\nsuit, action or proceeding, to the extent permitted by applicable law, any defence based on sovereign or other immunity or\nthat the suit, action or proceeding which is referred to in clause (i) above is brought in an inconvenient forum, that the\nvenue of such suit, action or proceeding is improper, or that this Agreement or the subject matter hereof or any of the\ntransactions contemplated hereby may not be enforced in or by these courts.\n10. ASSIGNMENT; COUNTERPARTS\nNeither Party shall assign or transfer any of its rights or obligations under this NDA without the prior written consent of the\nother Party, such consent not to be unreasonably withheld or delayed.\nNotwithstanding the above, Airbus may assign this NDA, upon notice in writing to the other Party, to a company controlled\nby Airbus.\nThis Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and\ndelivered will be an original, but all such counterparts will together constitute but one and the same instrument.\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [***]\n[***] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.\nIN WITNESS WHEREOF the Parties have executed this NDA on the date first above written, in two (2) original copies.\nAIRBUS SAS\nacting in its own name and in the name and on behalf of the Airbus Companies\nName: /s/ Christophe Mourey\nTitle: Senior Vice President Contracts\nDELTA AIR LINES, INC.\nName: /s/ Gregory A. May\nTitle: Senior Vice President - Supply Chain Management and Fleet\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [***]\n[***] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.	NON-DISCLOSURE AGREEMENT\nRELATING TO [***]\nThis Non Disclosure Agreement (hereinafter called the "NDA") is made on this 15" day of December 2017.\nBETWEEN\nAIRBUS S.A.S., a French société par actions simplifiée, with its registered office at 2, rond-point Emile Dewoitine, 31700 Blagnac,\nFrance, registered with the Commercial and Companies Register of Toulouse under number 383 474 814 (hereinafter referred to as\n"Airbus")\nAND\nDelta Air Lines, Inc., incorporated under the laws of Delaware, with offices at 1050 Delta Boulevard, Atlanta GE 30320\n(hereinafter referred to as the "Company")\n(Each of them hereinafter referred to as "Party" or together as "Parties")\nWHEREAS:\nThe Company and the Buyer have entered into an Airbus A321 NEO Aircraft Purchase Agreement of even date herewith (the\n“Agreement”) which covers, among other matters, the sale by the Seller and the purchase by the Buyer of certain Aircraft, under the\nterms and conditions set forth in said Agreement.\nA. As part of its commitment in the Agreement, Airbus has agreed to [***]\nC In order to protect any such information, the Parties have decided to enter into this NDA. For avoidance of doubt, the\nAirbus Companies shall not be deemed to be third parties and any such information may freely circulate among them.\nNOW IT IS HEREBY AGREED AS FOLLOWS:\n1. DEFINITIONS\nIn this NDA and unless otherwise defined herein, the following terms shall have the meanings set out below:\n“Airbus Companies”  means Airbus S.A.S or its affiliates\n"Confidential Information" means any proprietary, confidential and sensitive commercial or technical information disclosed by\nthe Disclosing Party (as defined below) to the Receiving Party (as defined below) in relation to or\nin anyway connected with the [***]\nFor avoidance of doubt, all and any version of Airbus specifications shall be considered as Confidential\nInformation.\n"Disclosing Party" means Airbus;\n"Employees" means the employees, officers, directors, and agents of the Receiving Party;\n"Receiving Party" means the Company.\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [***]\n[***] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.\n2. OBLIGATIONS OF THE RECEIVING PARTY In consideration of its receipt of the Confidential Information from the Disclosing Party, the Receiving Party shall: (a)\n(b)\n(©\n(d)\n(e)\n()\n(8\nTreat all Confidential Information received from the Disclosing Party as proprietary and confidential and unless\nexpressly authorized in writing to do so by the Disclosing Party, shall not disclose any Confidential Information to\nthird parties (except as provided herein) and shall only use such Confidential Information for purposes relating to\nthe support of its own operations and network planning activities. .\nOnly disseminate Confidential Information to Employees to the extent that such Employees have a demonstrable\nneed to know the same in order to carry out their tasks in relation to the Project;\nEnsure that all Employees who have access to Confidential Information are made aware of the confidential nature\nof the Confidential Information and of the obligations contained in this NDA;\nPromptly notify the Disclosing Party if it becomes aware of a breach of any provision of this NDA by any of its\nEmployees and take all the necessary measures to ensure that the disclosures in breach of this NDA cease\nimmediately;\nExcept as authorized in writing by the Disclosing Party, only use, copy or reduce Confidential Information into\ntangible, visible or recorded form as is strictly necessary for the performance of the Project;\nProtect the Confidential Information with at least the same degree of care as it uses to protect its own Confidential\nInformation but in no instance shall such standard be less than reasonable care;\nNot remove, alter or deface any designations relating to the confidential or proprietary nature of the Confidential\nInformation;\n3. LIMITS TO OBLIGATIONS ON THE RECEIVING PARTY 3.1 The obligations contained in Article 2 above shall not apply to Confidential Information: (a)\n(b)\n(©\nWhich is in the public domain at the time of disclosure or becomes part of the public domain after disclosure\notherwise than through a breach of this NDA; or\nFor which the Receiving Party can provide evidence that it was in its lawful possession prior to disclosure to it by\nthe Disclosing Party or which is lawfully and bona fide obtained thereafter by the Receiving Party from a third\nparty who, to the knowledge or reasonable belief of the Receiving Party, did not receive such information directly\nor indirectly from the Disclosing Party when under a duty of confidentiality; or\nFor which the Receiving Party can provide proof that it was independently developed by the Receiving Party\nwithout prior knowledge of any Confidential Information obtained from the Disclosing Party.\n3.2 The obligations contained in Article 2 shall not apply to a specific disclosure of Confidential Information if such disclosure meets one of the following conditions: NDA BETWEEN DAL AND AIRBUS FOR A321NEO [***]\n[***] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.\f(b)\nIt has to be disclosed by reason of a governmental or judicial order or applicable law. In such a case, the Party\nhaving received such an order or being subject to such applicable law shall promptly inform the Disclosing Party of\nits obligation to disclose Confidential Information if possible prior to such disclosure and consult the Disclosing\nParty on the advisability of taking steps to limit the disclosure. If the Disclosing Party wishes to counter such order\nor applicable law, the Receiving Party shall provide reasonable assistance to it in doing so, at the Disclosing Party’s\nexpense, provided that neither such time to consult, nor such reasonable assistance, shall compromise the obligation\nof the Party having received such an order to respond to such governmental or judicial order; or\nIt is further disclosed by the Receiving Party in confidence to any third party with the prior written consent of the\nDisclosing Party.\n4. PROPRIETARY RIGHTS Except as expressly stated in writing by the Disclosing Party, neither the disclosure pursuant to this NDA of Confidential Information nor anything contained in this NDA shall be construed as expressly or implicitly granting any rights to the Receiving Party in respect of any patent, copyright, license or other intellectual property right in force and belonging to or disclosed by, the Disclosing Party. 5. PROVISIONS IN CASE OF BREACH (a)\n(b)\n(©\nTermination\nIf the Receiving Party has committed a breach of any provision of this NDA, the Disclosing Party shall have the\nright to terminate forthwith this NDA by written notice thereof and without prejudice to any other right, claim or\nremedy it may have at law or in contract. The Receiving Party shall, upon request from and at the discretion of the\nDisclosing Party, immediately return or destroy all copies of Confidential Information disclosed under or in relation\nto this NDA. All Confidential information disclosed between the parties before such termination shall remain\nconfidential.\nTraditional Remedies\nIn that situation, both parties keep their usual rights to seek remedies for their damages incurred by such violation\nby the Receiving Party or its representative(s).\nParties will be entitled to use other legal remedies available including, but not limited to injunction.\n6. NO WAIVER The Receiving Party agrees that no failure nor any delay in exercising on the part of the Disclosing Party any right or remedy under this NDA shall operate as a waiver thereof (in whole or in part), nor shall any single or partial exercise of any right or remedy prevent any further, future or other exercise thereof or any other right or remedy. The rights and remedies existing by virtue of this NDA shall be cumulative and not exclusive of any rights or remedies provided by law. 7. DURATION OF THIS NDA (a)\nThis NDA shall commence on the date first above written and shall continue for [***] or until both Parties agree in\nwriting that such NDA is no longer needed and decide to cease it. Notwithstanding the termination of the NDA, all\nConfidential information that will have been disclosed prior to the date of termination shall remain confidential\nexcept if such information ceases to be confidential for the reasons mentioned in Article 3 above.\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [***]\n[***] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.\f(b) Upon termination each Party shall, upon request of the other Party, return, at the requester’s costs, or destroy any\nConfidential Information received by the other Party.\n8. MISCELLANEOUS (a) Neither Party shall publicly release any information relating to this NDA and the result of the discussions without\nthe prior written consent of the other Party.\n(b) The invalidity, illegality or unenforceability of any provision of this NDA under any jurisdiction shall not affect the\nvalidity, legality or enforceability of any other provision hereof.\n(© Each Party shall promptly advise the other in the event that it becomes aware of the possession, use or knowledge\nof any Confidential Information by any third party not authorized to possess, use or have such knowledge.\n9. GOVERNING LAW AND ARBITRATION 9.1\n9.2\nTHIS NDA SHALL BE GOVERNED BY AND CONSTRUED AND THE PERFORMANCE THEREOF SHALL BE\nDETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING\nEFFECT TO ITS CONFLICTS OF LAWS PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF THE\nLAW OF ANY OTHER JURISDICTION.\nEach of the Company and Airbus (i) hereby irrevocably submits itself to the exclusive jurisdiction of the courts sitting in\nthe Borough of Manhattan, New York County, New York, for the purposes of any suit, action or other proceeding arising\nout of this Agreement, the subject matter hereof or any of the transactions contemplated hereby brought by any party or\nparties hereto, and (ii) hereby waives, and agrees not to assert, by way of motion, as a defence or otherwise, in any such\nsuit, action or proceeding, to the extent permitted by applicable law, any defence based on sovereign or other immunity or\nthat the suit, action or proceeding which is referred to in clause (i) above is brought in an inconvenient forum, that the\nvenue of such suit, action or proceeding is improper, or that this Agreement or the subject matter hereof or any of the\ntransactions contemplated hereby may not be enforced in or by these courts.\n10. ASSIGNMENT; COUNTERPARTS Neither Party shall assign or transfer any of its rights or obligations under this NDA without the prior written consent of the\nother Party, such consent not to be unreasonably withheld or delayed.\nNotwithstanding the above, Airbus may assign this NDA, upon notice in writing to the other Party, to a company controlled\nby Airbus.\nThis Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and\ndelivered will be an original, but all such counterparts will together constitute but one and the same instrument.\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [***]\n[***] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.\fIN WITNESS WHEREOF the Parties have executed this NDA on the date first above written, in two (2) original copies.\nAIRBUS SAS\nacting in its own name and in the name and on behalf of the Airbus Companies\nName: /s/ Christophe Mourey\nTitle: Senior Vice President Contracts\nDEITA AIR LINES, INC.\nName: /s/ Gregory A. May\nTitle: Senior Vice President - Supply Chain Management and Fleet\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [***]\n[***] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.	NON-DISCLOSURE AGREEMENT\nRELATING TO [*****]\nThis Non Disclosure Agreement (hereinafter called the "NDA") is made on this 15th day of December 2017.\nBETWEEN\nAIRBUS S.A.S., a French societe par actions simplifiee, with its registered office at 2, rond-point Emile Dewoitine, 31700 Blagnac,\nFrance, registered with the Commercial and Companies Register of Toulouse under number 383 474 814 (hereinafter referred to as\n"Airbus")\nAND\nDelta Air Lines, Inc., incorporated under the laws of Delaware, with offices at 1050 Delta Boulevard, Atlanta GE 30320\n(hereinafter referred to as the "Company")\n(Each of them hereinafter referred to as "Party" or together as "Parties")\nWHEREAS:\nThe Company and the Buyer have entered into an Airbus A321 NEO Aircraft Purchase Agreement of even date herewith (the\n"Agreement") which covers, among other matters, the sale by the Seller and the purchase by the Buyer of certain Aircraft, under the\nterms and conditions set forth in said Agreement.\nA.\nAs part of its commitment in the Agreement, Airbus has agreed to [****]\nC\nIn order to protect any such information, the Parties have decided to enter into this NDA. For avoidance of doubt, the\nAirbus Companies shall not be deemed to be third parties and any such information may freely circulate among them.\nNOW IT IS HEREBY AGREED AS FOLLOWS:\n1.\nDEFINITIONS\nIn this NDA and unless otherwise defined herein, the following terms shall have the meanings set out below:\n"Airbus Companies" means Airbus S.A.S or its affiliates\n"Confidential Information" means any proprietary, confidential and sensitive commercial or technical information disclosed by\nthe Disclosing Party (as defined below) to the Receiving Party (as defined below) in relation to or\nin anyway connected with the [****]\nFor avoidance of doubt, all and any version of Airbus specifications shall be considered as Confidential\nInformation.\n"Disclosing Party" means Airbus;\n"Employees"\nmeans the employees, officers, directors, and agents of the Receiving Party;\n"Receiving Party"\nmeans the Company.\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [****]\n[*****] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.\n2.\nOBLIGATIONS OF THE RECEIVING PARTY\nIn consideration of its receipt of the Confidential Information from the Disclosing Party, the Receiving Party shall:\n(a)\nTreat all Confidential Information received from the Disclosing Party as proprietary and confidential and unless\nexpressly authorized in writing to do SO by the Disclosing Party, shall not disclose any Confidential Information to\nthird parties (except as provided herein) and shall only use such Confidential Information for purposes relating to\nthe support of its own operations and network planning activities.\n(b)\nOnly disseminate Confidential Information to Employees to the extent that such Employees have a demonstrable\nneed to know the same in order to carry out their tasks in relation to the Project;\n(c)\nEnsure that all Employees who have access to Confidential Information are made aware of the confidential nature\nof the Confidential Information and of the obligations contained in this NDA;\n(d)\nPromptly notify the Disclosing Party if it becomes aware of a breach of any provision of this NDA by any of its\nEmployees and take all the necessary measures to ensure that the disclosures in breach of this NDA cease\nimmediately;\n(e)\nExcept as authorized in writing by the Disclosing Party, only use, copy or reduce Confidential Information into\ntangible, visible or recorded form as is strictly necessary for the performance of the Project;\n(f)\nProtect the Confidential Information with at least the same degree of care as it uses to protect its own Confidential\nInformation but in no instance shall such standard be less than reasonable care;\n(g)\nNot remove, alter or deface any designations relating to the confidential or proprietary nature of the Confidential\nInformation;\n3.\nLIMITS TO OBLIGATIONS ON THE RECEIVING PARTY\n3.1\nThe obligations contained in Article 2 above shall not apply to Confidential Information:\n(a)\nWhich is in the public domain at the time of disclosure or becomes part of the public domain after disclosure\notherwise than through a breach of this NDA; or\n(b)\nFor which the Receiving Party can provide evidence that it was in its lawful possession prior to disclosure to it by\nthe Disclosing Party or which is lawfully and bona fide obtained thereafter by the Receiving Party from a third\nparty who, to the knowledge or reasonable belief of the Receiving Party, did not receive such information directly\nor indirectly from the Disclosing Party when under a duty of confidentiality; or\n(c)\nFor which the Receiving Party can provide proof that it was independently developed by the Receiving Party\nwithout prior knowledge of any Confidential Information obtained from the Disclosing Party.\n3.2\nThe obligations contained in Article 2 shall not apply to a specific disclosure of Confidential Information if such disclosure\nmeets one of the following conditions\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [*****]\n[****] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.\n(a)\nIt has to be disclosed by reason of a governmental or judicial order or applicable law. In such a case, the Party\nhaving received such an order or being subject to such applicable law shall promptly inform the Disclosing Party of\nits obligation to disclose Confidential Information if possible prior to such disclosure and consult the Disclosing\nParty\non\nthe advisability of taking steps to limit the disclosure. If the Disclosing Party wishes to counter such order\nor applicable law, the Receiving Party shall provide reasonable assistance to it in doing so, at the Disclosing Party's\nexpense, provided that neither such time to consult, nor such reasonable assistance, shall compromise the obligation\nof the Party having received such an order to respond to such governmental or judicial order; or\n(b)\nIt is further disclosed by the Receiving Party in confidence to any third party with the prior written consent of the\nDisclosing Party.\n4.\nPROPRIETARY RIGHTS\nExcept as expressly stated in writing by the Disclosing Party, neither the disclosure pursuant to this NDA of Confidential\nInformation\nnor anything contained in this NDA shall be construed as expressly or implicitly granting any rights to the\nReceiving Party in respect of any patent, copyright, license or other intellectual property right in force and belonging to or\ndisclosed by, the Disclosing Party.\n5. PROVISIONS IN CASE OF BREACH\n(a)\nTermination\nIf the Receiving Party has committed a breach of any provision of this NDA, the Disclosing Party shall have the\nright to terminate forthwith this NDA by written notice thereof and without prejudice to any other right, claim or\nremedy it may have at law or in contract. The Receiving Party shall, upon request from and at the discretion of the\nDisclosing Party, immediately return or destroy all copies of Confidential Information disclosed under or in relation\nto this NDA. All Confidentia information disclosed between the parties before such termination shall remain\nconfidential.\n(b)\nTraditional Remedies\nIn that situation, both parties keep their usual rights to seek remedies for their damages incurred by such violation\nby the Receiving Party or its representative(s).\n(c)\nParties will be entitled to use other legal remedies available including, but not limited to injunction.\n6. NO WAIVER\nThe Receiving Party agrees that no failure nor any delay in exercising on the part of the Disclosing Party any right or\nremedy under this NDA shall operate as a waiver thereof (in whole or in part), nor shall any single or partial exercise of any\nright or remedy prevent any further, future or other exercise thereof or any other right or remedy. The rights and remedies\nexisting by virtue of this NDA shall be cumulative and not exclusive of any rights or remedies provided by law.\n7.\nDURATION OF THIS NDA\n(a)\nThis NDA shall commence on the date first above written and shall continue for [***] or until both Parties agree in\nwriting that such NDA is no longer needed and decide to cease it. Notwithstanding the termination of the NDA, all\nConfidential information that will have been disclosed prior to the date of termination shall remain confidential\nexcept if such information ceases to be confidential for the reasons mentioned in Article 3 above.\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [***]\nConfidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.\n(b)\nUpon termination each Party shall, upon request of the other Party, return, at the requester's costs, or destroy any\nConfidential Information received by the other Party.\n8. MISCELLANEOUS\n(a)\nNeither Party shall publicly release any information relating to this NDA and the result of the discussions without\nthe prior written consent of the other Party.\n(b)\nThe invalidity, illegality or unenforceability of any provision of this NDA under any jurisdiction shall not affect the\nvalidity, legality or enforceability of any other provision hereof.\n(c)\nEach Party shall promptly advise the other in the event that it becomes aware of the possession, use or knowledge\nof any Confidential Information by any third party not authorized to possess, use or have such knowledge.\n9. GOVERNING LAW AND ARBITRATION\n9.1\nTHIS NDA SHALL BE GOVERNED BY AND CONSTRUED AND THE PERFORMANCE THEREOF SHALL BE\nDETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING\nEFFECT TO ITS CONFLICTS OF LAWS PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF THE\nLAW OF ANY OTHER JURISDICTION.\n9.2\nEach of the Company and Airbus (i) hereby irrevocably submits itself to the exclusive jurisdiction of the courts sitting in\nthe Borough of Manhattan, New York County, New York, for the purposes of any suit, action or other proceeding arising\nout of this Agreement, the subject matter hereof or any of the transactions contemplated hereby brought by any party or\nparties hereto, and (ii) hereby waives, and agrees not to assert, by way of motion, as a defence or otherwise, in any such\nsuit, action or proceeding, to the extent permitted by applicable law, any defence based on sovereign or other immunity or\nthat the suit, action or proceeding which is referred to in clause (i) above is brought in an inconvenient forum, that the\nvenue of such suit, action or proceeding is improper, or that this Agreement or the subject matter hereof or any of the\ntransactions contemplated hereby may not be enforced in or by these courts.\n10. ASSIGNMENT; COUNTERPARTS\nNeither Party shall assign or transfer any of its rights or obligations under this NDA without the prior written consent of the\nother Party, such consent not to be unreasonably withheld or delayed.\nNotwithstanding the above, Airbus may assign this NDA, upon notice in writing to the other Party, to a company controlled\nby Airbus.\nThis Agreement may be executed by the parties hereto in separate counterparts, each of which when SO executed and\ndelivered will be an original, but all such counterparts will together constitute but one and the same instrument.\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [****]\n[****] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.\nIN WITNESS WHEREOF the Parties have executed this NDA on the date first above written, in two (2) original copies.\nAIRBUS SAS\nacting in its own name and in the name and on behalf of the Airbus Companies\nName: /s/ Christophe Mourey.\nTitle: Senior Vice President Contracts\nDELTA AIR LINES, INC.\nName: /s/ Gregory_ A. May.\nTitle: Senior Vice President - Supply Chain Management and Fleet\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [** ****]\n[****] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.	NON-DISCLOSURE AGREEMENT\nRELATING TO [***]\nThis Non Disclosure Agreement (hereinafter called the "NDA") is made on this 15th day of December 2017.\nBETWEEN\nAIRBUS S.A.S., a French société par actions simplifiée, with its registered office at 2, rond-point Emile Dewoitine, 31700 Blagnac,\nFrance, registered with the Commercial and Companies Register of Toulouse under number 383 474 814 (hereinafter referred to as\n"Airbus")\nAND\nDelta Air Lines, Inc., incorporated under the laws of Delaware, with offices at 1050 Delta Boulevard, Atlanta GE 30320\n(hereinafter referred to as the "Company")\n(Each of them hereinafter referred to as "Party" or together as "Parties")\nWHEREAS:\nThe Company and the Buyer have entered into an Airbus A321 NEO Aircraft Purchase Agreement of even date herewith (the\n“Agreement”) which covers, among other matters, the sale by the Seller and the purchase by the Buyer of certain Aircraft, under the\nterms and conditions set forth in said Agreement.\nA.\nAs part of its commitment in the Agreement, Airbus has agreed to [***]\nC\nIn order to protect any such information, the Parties have decided to enter into this NDA. For avoidance of doubt, the\nAirbus Companies shall not be deemed to be third parties and any such information may freely circulate among them.\nNOW IT IS HEREBY AGREED AS FOLLOWS:\n1.\nDEFINITIONS\nIn this NDA and unless otherwise defined herein, the following terms shall have the meanings set out below:\n“Airbus Companies”\nmeans Airbus S.A.S or its affiliates\n"Confidential Information"\nmeans any proprietary, confidential and sensitive commercial or technical information disclosed by\nthe Disclosing Party (as defined below) to the Receiving Party (as defined below) in relation to or\nin anyway connected with the [***]\nFor avoidance of doubt, all and any version of Airbus specifications shall be considered as Confidential\nInformation.\n"Disclosing Party" means Airbus;\n"Employees"\nmeans the employees, officers, directors, and agents of the Receiving Party;\n"Receiving Party" means the Company.\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [***]\n[***] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.\n2.\nOBLIGATIONS OF THE RECEIVING PARTY\nIn consideration of its receipt of the Confidential Information from the Disclosing Party, the Receiving Party shall:\n(a)\nTreat all Confidential Information received from the Disclosing Party as proprietary and confidential and unless\nexpressly authorized in writing to do so by the Disclosing Party, shall not disclose any Confidential Information to\nthird parties (except as provided herein) and shall only use such Confidential Information for purposes relating to\nthe support of its own operations and network planning activities. .\n(b) Only disseminate Confidential Information to Employees to the extent that such Employees have a demonstrable\nneed to know the same in order to carry out their tasks in relation to the Project;\n(c)\nEnsure that all Employees who have access to Confidential Information are made aware of the confidential nature\nof the Confidential Information and of the obligations contained in this NDA;\n(d) Promptly notify the Disclosing Party if it becomes aware of a breach of any provision of this NDA by any of its\nEmployees and take all the necessary measures to ensure that the disclosures in breach of this NDA cease\nimmediately;\n(e)\nExcept as authorized in writing by the Disclosing Party, only use, copy or reduce Confidential Information into\ntangible, visible or recorded form as is strictly necessary for the performance of the Project;\n(f)\nProtect the Confidential Information with at least the same degree of care as it uses to protect its own Confidential\nInformation but in no instance shall such standard be less than reasonable care;\n(g) Not remove, alter or deface any designations relating to the confidential or proprietary nature of the Confidential\nInformation;\n3. LIMITS TO OBLIGATIONS ON THE RECEIVING PARTY\n3.1\nThe obligations contained in Article 2 above shall not apply to Confidential Information:\n(a)\nWhich is in the public domain at the time of disclosure or becomes part of the public domain after disclosure\notherwise than through a breach of this NDA; or\n(b)\nFor which the Receiving Party can provide evidence that it was in its lawful possession prior to disclosure to it by\nthe Disclosing Party or which is lawfully and bona fide obtained thereafter by the Receiving Party from a third\nparty who, to the knowledge or reasonable belief of the Receiving Party, did not receive such information directly\nor indirectly from the Disclosing Party when under a duty of confidentiality; or\n(c)\nFor which the Receiving Party can provide proof that it was independently developed by the Receiving Party\nwithout prior knowledge of any Confidential Information obtained from the Disclosing Party.\n3.2\nThe obligations contained in Article 2 shall not apply to a specific disclosure of Confidential Information if such disclosure\nmeets one of the following conditions:\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [***]\n[***] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.\n(a)\nIt has to be disclosed by reason of a governmental or judicial order or applicable law. In such a case, the Party\nhaving received such an order or being subject to such applicable law shall promptly inform the Disclosing Party of\nits obligation to disclose Confidential Information if possible prior to such disclosure and consult the Disclosing\nParty on the advisability of taking steps to limit the disclosure. If the Disclosing Party wishes to counter such order\nor applicable law, the Receiving Party shall provide reasonable assistance to it in doing so, at the Disclosing Party’s\nexpense, provided that neither such time to consult, nor such reasonable assistance, shall compromise the obligation\nof the Party having received such an order to respond to such governmental or judicial order; or\n(b) It is further disclosed by the Receiving Party in confidence to any third party with the prior written consent of the\nDisclosing Party.\n4. PROPRIETARY RIGHTS\nExcept as expressly stated in writing by the Disclosing Party, neither the disclosure pursuant to this NDA of Confidential\nInformation nor anything contained in this NDA shall be construed as expressly or implicitly granting any rights to the\nReceiving Party in respect of any patent, copyright, license or other intellectual property right in force and belonging to or\ndisclosed by, the Disclosing Party.\n5. PROVISIONS IN CASE OF BREACH\n(a)\nTermination\nIf the Receiving Party has committed a breach of any provision of this NDA, the Disclosing Party shall have the\nright to terminate forthwith this NDA by written notice thereof and without prejudice to any other right, claim or\nremedy it may have at law or in contract. The Receiving Party shall, upon request from and at the discretion of the\nDisclosing Party, immediately return or destroy all copies of Confidential Information disclosed under or in relation\nto this NDA. All Confidential information disclosed between the parties before such termination shall remain\nconfidential.\n(b)\nTraditional Remedies\nIn that situation, both parties keep their usual rights to seek remedies for their damages incurred by such violation\nby the Receiving Party or its representative(s).\n(c)\nParties will be entitled to use other legal remedies available including, but not limited to injunction.\n6. NO WAIVER\nThe Receiving Party agrees that no failure nor any delay in exercising on the part of the Disclosing Party any right or\nremedy under this NDA shall operate as a waiver thereof (in whole or in part), nor shall any single or partial exercise of any\nright or remedy prevent any further, future or other exercise thereof or any other right or remedy. The rights and remedies\nexisting by virtue of this NDA shall be cumulative and not exclusive of any rights or remedies provided by law.\n7. DURATION OF THIS NDA\n(a)\nThis NDA shall commence on the date first above written and shall continue for [***] or until both Parties agree in\nwriting that such NDA is no longer needed and decide to cease it. Notwithstanding the termination of the NDA, all\nConfidential information that will have been disclosed prior to the date of termination shall remain confidential\nexcept if such information ceases to be confidential for the reasons mentioned in Article 3 above.\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [***]\n[***] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.\n(b) Upon termination each Party shall, upon request of the other Party, return, at the requester’s costs, or destroy any\nConfidential Information received by the other Party.\n8. MISCELLANEOUS\n(a)\nNeither Party shall publicly release any information relating to this NDA and the result of the discussions without\nthe prior written consent of the other Party.\n(b)\nThe invalidity, illegality or unenforceability of any provision of this NDA under any jurisdiction shall not affect the\nvalidity, legality or enforceability of any other provision hereof.\n(c)\nEach Party shall promptly advise the other in the event that it becomes aware of the possession, use or knowledge\nof any Confidential Information by any third party not authorized to possess, use or have such knowledge.\n9. GOVERNING LAW AND ARBITRATION\n9.1\nTHIS NDA SHALL BE GOVERNED BY AND CONSTRUED AND THE PERFORMANCE THEREOF SHALL BE\nDETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING\nEFFECT TO ITS CONFLICTS OF LAWS PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF THE\nLAW OF ANY OTHER JURISDICTION.\n9.2\nEach of the Company and Airbus (i) hereby irrevocably submits itself to the exclusive jurisdiction of the courts sitting in\nthe Borough of Manhattan, New York County, New York, for the purposes of any suit, action or other proceeding arising\nout of this Agreement, the subject matter hereof or any of the transactions contemplated hereby brought by any party or\nparties hereto, and (ii) hereby waives, and agrees not to assert, by way of motion, as a defence or otherwise, in any such\nsuit, action or proceeding, to the extent permitted by applicable law, any defence based on sovereign or other immunity or\nthat the suit, action or proceeding which is referred to in clause (i) above is brought in an inconvenient forum, that the\nvenue of such suit, action or proceeding is improper, or that this Agreement or the subject matter hereof or any of the\ntransactions contemplated hereby may not be enforced in or by these courts.\n10. ASSIGNMENT; COUNTERPARTS\nNeither Party shall assign or transfer any of its rights or obligations under this NDA without the prior written consent of the\nother Party, such consent not to be unreasonably withheld or delayed.\nNotwithstanding the above, Airbus may assign this NDA, upon notice in writing to the other Party, to a company controlled\nby Airbus.\nThis Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and\ndelivered will be an original, but all such counterparts will together constitute but one and the same instrument.\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [***]\n[***] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.\nIN WITNESS WHEREOF the Parties have executed this NDA on the date first above written, in two (2) original copies.\nAIRBUS SAS\nacting in its own name and in the name and on behalf of the Airbus Companies\nName: /s/ Christophe Mourey\nTitle: Senior Vice President Contracts\nDELTA AIR LINES, INC.\nName: /s/ Gregory A. May\nTitle: Senior Vice President - Supply Chain Management and Fleet\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [***]\n[***] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.
a4460113a76297d8670fa741a1cb2c46.pdf	effective_date jurisdiction party term	EX-99.(D)(4) 14 dex99d4.htm MUTUAL CONFIDENTAILITY AGREEMENT\nEXHIBIT 99(d)(4)\n[OPENWAVE LOGO]\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement (the “Agreement”) is entered into and is effective as of February 28, 2002 (the “Effective Date”) by\nand between Openwave Systems Inc., on behalf of itself and its subsidiaries, located at 1400 Seaport Boulevard, Redwood City, CA 94063\n(“Openwave”), and SignalSoft Corporation, located at 1495 Canyon Boulevard, Boulder, CO (“Company”).\nWHEREAS, each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose certain Confidential\nInformation as further described in Section 1 below for the purpose of a potential business transaction (the “Purpose”).\nWHEREAS, in consideration of the disclosure of such information to Openwave and/or Company, Openwave and/or Company is willing to\nkeep such information confidential in accordance with the terms and conditions set forth in this Agreement.\nNOW, THEREFORE, Openwave and Company hereby agree as follows:\n1. Definition of Confidential Information.\n“Confidential Information” shall mean (i) all information disclosed in tangible form by the\nDisclosing Party and marked “confidential” or “proprietary” or which by its nature should be readily recognized as confidential or proprietary\ninformation of the disclosing party, and (ii) all information disclosed orally by the Disclosing Party and designated in writing as confidential or\nproprietary within two (2) weeks of the disclosure. Confidential Information may include, without limitation, computer programs, code, algorithms,\nnames and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and\nother technical, business, financial and product development plans, forecasts, strategies and information.\n2. Confidentiality Obligation. The Receiving Party agrees (i) to protect the Confidential Information by using the same degree of care,\nbut not less than a reasonable degree of care, to prevent the unauthorized dissemination or publication of the Confidential Information as the\nReceiving Party uses to protect its own confidential or proprietary information of a like nature and (ii) not to use the Confidential Information for\nany purpose other than to evaluate a potential business transaction between the parties. The Receiving Party shall limit access to the Disclosing\nParty’s Confidential Information to the Receiving Party’s employees and professional advisors who (i) have a need to know and have been notified\nthat such information is Confidential Information for the Purpose; and (ii) are under binding obligations of confidentiality no less restrictive than\nthose of this Agreement. The Receiving Party shall be responsible for any breaches by its employees and professional advisors of the Receiving\nParty’s obligations under this Agreement.\n3. Term. The Receiving Party’s obligation to protect Confidential Information hereunder shall expire three (3) years from the date of each\nsuch disclosure of Confidential Information, except when such Confidential Information disclosed by the Disclosing Party is source code, in which\ncase the Receiving Party’s obligations to protect such Confidential Information shall be perpetual.\n4. Exclusions. Confidential Information shall not include Confidential Information that: (i) is or becomes a matter of public knowledge\nthrough no fault of the Receiving Party; or (ii) was rightfully in the Receiving Party’s possession prior to receipt from the Disclosing Party as shown\nby the Receiving Party’s files and records immediately prior to the time of disclosure; or (iii) was rightfully disclosed to the Receiving Party by a\nthird party that lawfully and rightfully possesses such information and has no obligations of confidentiality; or (iv) is independently developed by the\nReceiving Party without use of or reference to the Disclosing Party’s Confidential Information. The Receiving Party may disclose Confidential\nInformation pursuant to any statutory or regulatory authority or court order, provided the Disclosing Party is given prompt prior written notice of\nsuch requirement and the scope of such disclosure is limited to the extent possible.\n5. Ownership/Return of Materials. All Confidential Information, unless otherwise specified in writing, remains the property of the\nDisclosing Party. Upon written request by the Disclosing Party at any time, the Receiving Party shall: (i) promptly turn over to the Disclosing Party\nall Confidential Information of the Disclosing Party, all documents or media containing the Confidential Information, and any and all\n1\ncopies or extracts thereof, that the Receiving Party possesses or controls; or (ii) promptly destroy the Confidential Information, and any and all\ncopies or extracts thereof that the Receiving Party possesses or controls, and provide the Disclosing Party with written certification of such\ndestruction signed by an authorized representative of the Receiving Party.\n6. Equitable Relief. The Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party’s Confidential\nInformation, there may be no adequate remedy at law for any breach of its obligations. The Receiving Party further acknowledges that any such\nbreach may allow the Receiving Party or third parties to unfairly compete with the Disclosing Party resulting in irreparable harm to the Disclosing\nParty and, therefore, that upon any such breach or any threat thereof, the Disclosing Party shall be entitled to seek appropriate equitable relief,\nincluding but not limited to injunction in addition to whatever remedies it may have at law. The Receiving Party will notify the Disclosing Party in\nwriting immediately upon the occurrence of any such unauthorized release or other breach.\n7. Warranty. THE CONFIDENTIAL INFORMATION DISCLOSED UNDER THIS AGREEMENT IS DELIVERED “AS IS,” AND\nALL REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OR CONDITIONS FOR\nFITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE AND NON-INFRINGEMENT ARE HEREBY DISCLAIMED .\n8. Export. Each party agrees that the export of encryption related information and encryption-enabled software from the United States may\nbe regulated by US law, and agree to comply with such laws and regulations.\n9. Notices. All notices required or permitted to be given under this Agreement shall be given in writing and shall be effective from the date\nsent by registered or certified mail, by hand, facsimile or overnight courier to the addresses of the parties set forth above, or such other address as\neither party shall have furnished to the other pursuant to this Section 9.\n10. Independent Development. The Disclosing Party understands that the Receiving Party may currently or in the future be developing\ninformation internally, or receiving information from other parties that may be similar to the Disclosing Party’s information. Accordingly, nothing in\nthis Agreement will be construed as a representation or inference that the Receiving Party will not develop products, or have products developed for\nit, that, without violation of this Agreement, compete with the products or systems contemplated by the Disclosing Party’s Confidential Information.\nFurther, Confidential Information as defined in Section 1 above shall not include the residuals resulting from access to such Confidential\nInformation. As used herein, residuals means information in intangible form which is unintentionally retained in the unaided memories of Receiving\nParty’s employees who have had access to the Disclosing Party’s Confidential Information. The foregoing shall not be deemed to grant to either\nparty a license under the Disclosing Party’s copyrights or patents.\n11 No Solicitation. Each of the parties agrees that for a period of 9 (nine) months from the date hereof, it shall not, and shall cause its\nemployees not to, solicit for employment or for independent consulting services any employee of such other party. The parties agree that a breach of\nthis Section 11 shall require as the sole and exclusive remedy, the payment of liquidated damages equal to 50% of the base salary of any employees\nhired in violation of this section. Each party also agrees that its rights under this Section 11 shall automatically terminate upon a change of control of\nsuch party (more than 50% change in the beneficial ownership of such party), cessation of the conduct of regular business by such party, or an event\nof liquidation of such party.\n12. Restriction Regarding Securities. Each of the parties agrees that it shall not purchase or sell any direct or derivative interest in the\ncommon stock of the other party for six months from the date hereof, or, if later, the date allowed by applicable securities laws.\n13. General. This Agreement supersedes all prior discussions and writings with respect to the subject matter hereof, and constitutes the\nentire agreement between the parties with respect to the subject matter hereof. No waiver or modification of this Agreement will be binding upon\neither party unless made in writing and signed by a duly authorized representative of each party and no failure or\n2\ndelay in enforcing any right will be deemed a waiver. Neither party may assign this Agreement, or its limited rights or obligations hereunder, to any\nthird party without the prior written consent of the other party. The parties understand that nothing herein requires either party to proceed with any\nproposed transaction or relationship in connection with which Confidential Information may be disclosed. In the event that any of the provisions of\nthis Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions hereof shall remain in\nfull force and effect. This Agreement shall be governed by the laws of the State of California, without regard to conflicts of law provisions. The\nheadings to the Sections of this Agreement are included merely for reference and shall not affect the meaning of the language included therein. This\nAgreement is written in the English language only, which language shall be controlling in all respects. This Agreement may be delivered by\nfacsimile and signed in counterparts, each of which shall be deemed an original and both of which together shall be considered as one fully executed\nagreement.\n3\nUnderstood and agreed:\nOPENWAVE SYSTEMS INC.\nSIGNALSOFT CORPORATION\nBy: /s/ DOUGLAS P. SOLOMON\nBy: /s/ ANDREW M. MURRAY\nSignature\nSignature\nName: Douglas P. Solomon\nName: Andrew M. Murray\nPrint or Type\nPrint or Type\nTitle: Associate General Counsel\nTitle: SVP, CFO\n4	EX-99.(D)(4) 14 dex99d4.htm MUTUAL CONFIDENTAILITY AGREEMENT\nEXHIBIT 99(d)(4)\n[OPENWAVE LOGO]\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement (the “Agreement”) is entered into and is effective as of February 28, 2002 (the “Effective Date”) by\nand between Openwave Systems Inc., on behalf of itself and its subsidiaries, located at 1400 Seaport Boulevard, Redwood City, CA 94063\n(“Openwave”), and SignalSoft Corporation, located at 1495 Canyon Boulevard, Boulder, CO (“Company™).\nWHEREAS, each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose certain Confidential\nInformation as further described in Section 1 below for the purpose of a potential business transaction (the “Purpose”).\nWHEREAS, in consideration of the disclosure of such information to Openwave and/or Company, Openwave and/or Company is willing to\nkeep such information confidential in accordance with the terms and conditions set forth in this Agreement.\nNOW, THEREFORE, Openwave and Company hereby agree as follows:\n1. Definition of Confidential Information. “Confidential Information” shall mean (i) all information disclosed in tangible form by the\nDisclosing Party and marked “confidential” or “proprietary” or which by its nature should be readily recognized as confidential or proprietary\ninformation of the disclosing party, and (ii) all information disclosed orally by the Disclosing Party and designated in writing as confidential or\nproprietary within two (2) weeks of the disclosure. Confidential Information may include, without limitation, computer programs, code, algorithms,\nnames and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and\nother technical, business, financial and product development plans, forecasts, strategies and information.\n2. Confidentiality Obligation. The Receiving Party agrees (i) to protect the Confidential Information by using the same degree of care,\nbut not less than a reasonable degree of care, to prevent the unauthorized dissemination or publication of the Confidential Information as the\nReceiving Party uses to protect its own confidential or proprietary information of a like nature and (ii) not to use the Confidential Information for\nany purpose other than to evaluate a potential business transaction between the parties. The Receiving Party shall limit access to the Disclosing\nParty’s Confidential Information to the Receiving Party’s employees and professional advisors who (i) have a need to know and have been notified\nthat such information is Confidential Information for the Purpose; and (ii) are under binding obligations of confidentiality no less restrictive than\nthose of this Agreement. The Receiving Party shall be responsible for any breaches by its employees and professional advisors of the Receiving\nParty’s obligations under this Agreement.\n3. Term. The Receiving Party’s obligation to protect Confidential Information hereunder shall expire three (3) years from the date of each\nsuch disclosure of Confidential Information, except when such Confidential Information disclosed by the Disclosing Party is source code, in which\ncase the Receiving Party’s obligations to protect such Confidential Information shall be perpetual.\n4. Exclusions. Confidential Information shall not include Confidential Information that: (i) is or becomes a matter of public knowledge\nthrough no fault of the Receiving Party; or (ii) was rightfully in the Receiving Party’s possession prior to receipt from the Disclosing Party as shown\nby the Receiving Party’s files and records immediately prior to the time of disclosure; or (iii) was rightfully disclosed to the Receiving Party by a\nthird party that lawfully and rightfully possesses such information and has no obligations of confidentiality; or (iv) is independently developed by the\nReceiving Party without use of or reference to the Disclosing Party’s Confidential Information. The Receiving Party may disclose Confidential\nInformation pursuant to any statutory or regulatory authority or court order, provided the Disclosing Party is given prompt prior written notice of\nsuch requirement and the scope of such disclosure is limited to the extent possible.\n5. Ownership/Return of Materials. All Confidential Information, unless otherwise specified in writing, remains the property of the\nDisclosing Party. Upon written request by the Disclosing Party at any time, the Receiving Party shall: (i) promptly turn over to the Disclosing Party\nall Confidential Information of the Disclosing Party, all documents or media containing the Confidential Information, and any and all\n1\ncopies or extracts thereof, that the Receiving Party possesses or controls; or (ii) promptly destroy the Confidential Information, and any and all\ncopies or extracts thereof that the Receiving Party possesses or controls, and provide the Disclosing Party with written certification of such\ndestruction signed by an authorized representative of the Receiving Party.\n6. Equitable Relief. The Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party’s Confidential\nInformation, there may be no adequate remedy at law for any breach of its obligations. The Receiving Party further acknowledges that any such\nbreach may allow the Receiving Party or third parties to unfairly compete with the Disclosing Party resulting in irreparable harm to the Disclosing\nParty and, therefore, that upon any such breach or any threat thereof, the Disclosing Party shall be entitled to seek appropriate equitable relief,\nincluding but not limited to injunction in addition to whatever remedies it may have at law. The Receiving Party will notify the Disclosing Party in\nwriting immediately upon the occurrence of any such unauthorized release or other breach.\n7. Warranty. THE CONFIDENTIAL INFORMATION DISCLOSED UNDER THIS AGREEMENT IS DELIVERED “AS IS,” AND\nALL REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OR CONDITIONS FOR\nFITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE AND NON-INFRINGEMENT ARE HEREBY DISCLAIMED.\n8. Export. Each party agrees that the export of encryption related information and encryption-enabled software from the United States may\nbe regulated by US law, and agree to comply with such laws and regulations.\n9. Notices. All notices required or permitted to be given under this Agreement shall be given in writing and shall be effective from the date\nsent by registered or certified mail, by hand, facsimile or overnight courier to the addresses of the parties set forth above, or such other address as\neither party shall have furnished to the other pursuant to this Section 9.\n10. Independent Development. The Disclosing Party understands that the Receiving Party may currently or in the future be developing\ninformation internally, or receiving information from other parties that may be similar to the Disclosing Party’s information. Accordingly, nothing in\nthis Agreement will be construed as a representation or inference that the Receiving Party will not develop products, or have products developed for\nit, that, without violation of this Agreement, compete with the products or systems contemplated by the Disclosing Party’s Confidential Information.\nFurther, Confidential Information as defined in Section 1 above shall not include the residuals resulting from access to such Confidential\nInformation. As used herein, residuals means information in intangible form which is unintentionally retained in the unaided memories of Receiving\nParty’s employees who have had access to the Disclosing Party’s Confidential Information. The foregoing shall not be deemed to grant to either\nparty a license under the Disclosing Party’s copyrights or patents.\n11 No Solicitation. Each of the parties agrees that for a period of 9 (nine) months from the date hereof, it shall not, and shall cause its\nemployees not to, solicit for employment or for independent consulting services any employee of such other party. The parties agree that a breach of\nthis Section 11 shall require as the sole and exclusive remedy, the payment of liquidated damages equal to 50% of the base salary of any employees\nhired in violation of this section. Each party also agrees that its rights under this Section 11 shall automatically terminate upon a change of control of\nsuch party (more than 50% change in the beneficial ownership of such party), cessation of the conduct of regular business by such party, or an event\nof liquidation of such party.\n12. Restriction Regarding Securities. Each of the parties agrees that it shall not purchase or sell any direct or derivative interest in the\ncommon stock of the other party for six months from the date hereof, or, if later, the date allowed by applicable securities laws.\n13. General. This Agreement supersedes all prior discussions and writings with respect to the subject matter hereof, and constitutes the\nentire agreement between the parties with respect to the subject matter hereof. No waiver or modification of this Agreement will be binding upon\neither party unless made in writing and signed by a duly authorized representative of each party and no failure or\n2\ndelay in enforcing any right will be deemed a waiver. Neither party may assign this Agreement, or its limited rights or obligations hereunder, to any\nthird party without the prior written consent of the other party. The parties understand that nothing herein requires either party to proceed with any\nproposed transaction or relationship in connection with which Confidential Information may be disclosed. In the event that any of the provisions of\nthis Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions hereof shall remain in\nfull force and effect. This Agreement shall be governed by the laws of the State of California, without regard to conflicts of law provisions. The\nheadings to the Sections of this Agreement are included merely for reference and shall not affect the meaning of the language included therein. This\nAgreement is written in the English language only, which language shall be controlling in all respects. This Agreement may be delivered by\nfacsimile and signed in counterparts, each of which shall be deemed an original and both of which together shall be considered as one fully executed\nagreement.\nUnderstood and agreed:\nOPENWAVE SYSTEMS INC.\nBy:__/s/ DOUGLAS P. SOLOMON Signature\nName:__Douglas P. Solomon Print or Type\nTitle:__Associate General Counsel SIGNALSOFT CORPORATION\nBy:__ /s/ ANDREW M. MURRAY\nSignature\nName:__Andrew M. Murray\nPrint or Type\nTitle:__SVP, CFO	EX-99.(D)(4) 14 dex99d4.htm MUTUAL CONFIDENTAILITY AGREEMENT\nEXHIBIT 99(d)(4)\n[OPENWAVE LOGO]\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement (the "Agreement") is entered into and is effective as of February 28, 2002 (the "Effective Date") by\nand between Openwave Systems Inc., on behalf of itself and its subsidiaries, located at 1400 Seaport Boulevard, Redwood City, CA 94063\n("Openwave"), and Signalsoft Corporation, located at 1495 Canyon Boulevard, Boulder, CO ("Company").\nWHEREAS, each party (the "Receiving Party") understands that the other party (the "Disclosing Party") may disclose certain Confidential\nInformation as further described in Section 1 below for the purpose of a potential business transaction (the "Purpose").\nWHEREAS, in consideration of the disclosure of such information to Openwave and/or Company, Openwave and/or Company is willing\nto\nkeep such information confidential in accordance with the terms and conditions set forth in this Agreement.\nNOW, THEREFORE, Openwave and Company hereby agree as follows:\n1. Definition of Confidential Information. "Confidentia Information" shall mean (i) all information disclosed in tangible form by the\nDisclosing Party and marked "confidential" or "proprietary" or which by its nature should be readily recognized as confidential or proprietary\ninformation of the disclosing party, and (ii) all information disclosed orally by the Disclosing Party and designated in writing as confidential or\nproprietary within two (2) weeks of the disclosure. Confidential Information may include, without limitation, computer programs, code, algorithms,\nnames and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and\nother technical, business, financial and product development plans, forecasts, strategies and information.\n2. Confidentiality Obligation. The Receiving Party agrees (i) to protect the Confidential Information by using the same degree of care,\nbut not less than a reasonable degree of care, to prevent the unauthorized dissemination or publication of the Confidential Information as the\nReceiving Party uses to protect its own confidential or proprietary information of a like nature and (ii) not to use the Confidential Information for\nany purpose other than to evaluate a potential business transaction between the parties. The Receiving Party shall limit access to the Disclosing\nParty's Confidential Information to the Receiving Party's employees and professional advisors who (i) have a need to know and have been notified\nthat such information is Confidential Information for the Purpose; and (ii) are under binding obligations of confidentiality no less restrictive than\nthose of this Agreement. The Receiving Party shall be responsible for any breaches by its employees and professional advisors of the Receiving\nParty's obligations under this Agreement.\n3. Term. The Receiving Party's obligation to protect Confidential Information hereunder shall expire three (3) years from the date of each\nsuch disclosure of Confidential Information, except when such Confidential Information disclosed by the Disclosing Party is source code, in which\ncase the Receiving Party's obligations to protect such Confidential Information shall be perpetual.\n4.\nExclusions. Confidential Information shall not include Confidential Information that: (i) is or becomes a matter of public knowledge\nthrough no fault of the Receiving Party; or (ii) was rightfully in the Receiving Party's possession prior to receipt from the Disclosing Party as shown\nby the Receiving Party's files and records immediately prior to the time of disclosure; or (iii) was rightfully disclosed to the Receiving Party by a\nthird\nparty\nthat\nlawfully\nand\nrightfully\npossesses\nsuch\ninformation\nand\nhas\nno\nobligations\nof\nconfidentiality;\nor\n(iv)\nis\nindependently\ndeveloped\nby\nthe\nReceiving Party without use of or reference to the Disclosing Party's Confidential Information. The Receiving Party may disclose Confidential\nInformation pursuant to any statutory or regulatory authority or court order, provided the Disclosing Party is given prompt prior written notice of\nsuch requirement and the scope of such disclosure is limited to the extent possible.\n5. Ownership/Return of Materials. All Confidential Information, unless otherwise specified in writing, remains the property of the\nDisclosing Party. Upon written request by the Disclosing Party at any time, the Receiving Party shall: (i) promptly turn over to the Disclosing Party\nall Confidential Information of the Disclosing Party, all documents or media containing the Confidential Information, and any and all\n1\ncopies or extracts thereof, that the Receiving Party possesses or controls; or (ii) promptly destroy the Confidential Information, and any and all\ncopies or extracts thereof that the Receiving Party possesses or controls, and provide the Disclosing Party with written certification of such\ndestruction signed by an authorized representative of the Receiving Party.\n6. Equitable Relief. The Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party's Confidentia\nInformation,\nthere\nmay\nbe\nno\nadequate\nremedy\nat\nlaw\nfor\nany\nbreach\nof\nits\nobligations.\nThe\nReceiving\nParty\nfurther\nacknowledges\nthat\nany\nsuch\nbreach may allow the Receiving Party or third parties to unfairly compete with the Disclosing Party resulting in irreparable harm to the Disclosing\nParty and, therefore, that upon any such breach or any threat thereof, the Disclosing Party shall be entitled to seek appropriate equitable relief,\nincluding but not limited to injunction in addition to whatever remedies it may have at law. The Receiving Party will notify the Disclosing Party in\nwriting immediately upon the occurrence of any such unauthorized release or other breach.\n7.\nWarranty. THE CONFIDENTIAL INFORMATION DISCLOSED UNDER THIS AGREEMENT IS DELIVERED "AS IS," AND\nALL REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OR CONDITIONS FOR\nFITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE AND NON-INFRINGEMENT ARE HEREBY DISCLAIMED.\n8. Export. Each party agrees that the export of encryption related information and encryption-enabled software from the United States may\nbe regulated by US law, and agree to comply with such laws and regulations.\n9. Notices. All notices required or permitted to be given under this Agreement shall be given in writing and shall be effective from the date\nsent by registered or certified mail, by hand, facsimile or overnight courier to the addresses of the parties set forth above, or such other address as\neither party shall have furnished to the other pursuant to this Section 9.\n10. Independent Development. The Disclosing Party understands that the Receiving Party may currently or in the future be developing\ninformation internally, or receiving information from other parties that may be similar to the Disclosing Party's information. Accordingly, nothing in\nthis Agreement will be construed as a representation or inference that the Receiving Party will not develop products, or have products developed for\nit, that, without violation of this Agreement, compete with the products or systems contemplated by the Disclosing Party's Confidential Information.\nFurther, Confidential Information as defined in Section 1 above shall not include the residuals resulting from access to such Confidential\nInformation. As used herein, residuals means information in intangible form which is unintentionally retained in the unaided memories of Receiving\nParty's employees who have had access to the Disclosing Party's Confidential Information. The foregoing shall not be deemed to grant to either\nparty a license under the Disclosing Party's copyrights or patents.\n11 No Solicitation. Each of the parties agrees that for a period of 9 (nine) months from the date hereof, it shall not, and shall cause its\nemployees not to, solicit for employment or for independent consulting services any employee of such other party. The parties agree that a breach of\nthis Section 11 shall require as the sole and exclusive remedy, the payment of liquidated damages equal to 50% of the base salary of any employees\nhired in violation of this section. Each party also agrees that its rights under this Section 11 shall automatically terminate upon a change of control of\nsuch party (more than 50% change in the beneficial ownership of such party), cessation of the conduct of regular business by such party, or an event\nof liquidation of such party.\n12. Restriction Regarding Securities. Each of the parties agrees that it shall not purchase or sell any direct or derivative interest in the\ncommon stock of the other party for six months from the date hereof, or, if later, the date allowed by applicable securities laws.\n13. General. This Agreement supersedes all prior discussions and writings with respect to the subject matter hereof, and constitutes the\nentire agreement between the parties with respect to the subject matter hereof. No waiver or modification of this Agreement will be binding upon\neither party unless made in writing and signed by a duly authorized representative of each party and no failure or\n2\ndelay in enforcing any right will be deemed a waiver. Neither party may assign this Agreement, or its limited rights or obligations hereunder, to any\nthird party without the prior written consent of the other party. The parties understand that nothing herein requires either party to proceed with any\nproposed transaction or relationship in connection with which Confidential Information may be disclosed. In the event that any of the provisions of\nthis Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions hereof shall remain in\nfull force and effect. This Agreement shall be governed by the laws of the State of California, without regard to conflicts of law provisions. The\nheadings to the Sections of this Agreement are included merely for reference and shall not affect the meaning of the language included therein. This\nAgreement is written in the English language only, which language shall be controlling in all respects. This Agreement may be delivered by\nfacsimile and signed in counterparts, each of which shall be deemed an original and both of which together shall be considered as one fully executed\nagreement.\n3\nUnderstood and agreed:\nOPENWAVE SYSTEMS INC.\nSIGNALSOFT CORPORATION\nBy: /s/ DOUGLAS P. SOLOMON\nBy: /s/ ANDREW M. MURRAY\nSignature\nSignature\nName: Douglas P. Solomon\nName: Name: Andr Andrew M. Murray.\nPrint or Type\nPrint or Type\nTitle: Associate General Counsel\nTitle: SVP, CFO\n4	EX-99.(D)(4) 14 dex99d4.htm MUTUAL CONFIDENTAILITY AGREEMENT\nEXHIBIT 99(d)(4)\n[OPENWAVE LOGO]\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement (the “Agreement”) is entered into and is effective as of February 28, 2002 (the “Effective Date”) by\nand between Openwave Systems Inc., on behalf of itself and its subsidiaries, located at 1400 Seaport Boulevard, Redwood City, CA 94063\n(“Openwave”), and SignalSoft Corporation, located at 1495 Canyon Boulevard, Boulder, CO (“Company”).\nWHEREAS, each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose certain Confidential\nInformation as further described in Section 1 below for the purpose of a potential business transaction (the “Purpose”).\nWHEREAS, in consideration of the disclosure of such information to Openwave and/or Company, Openwave and/or Company is willing to\nkeep such information confidential in accordance with the terms and conditions set forth in this Agreement.\nNOW, THEREFORE, Openwave and Company hereby agree as follows:\n1. Definition of Confidential Information.\n“Confidential Information” shall mean (i) all information disclosed in tangible form by the\nDisclosing Party and marked “confidential” or “proprietary” or which by its nature should be readily recognized as confidential or proprietary\ninformation of the disclosing party, and (ii) all information disclosed orally by the Disclosing Party and designated in writing as confidential or\nproprietary within two (2) weeks of the disclosure. Confidential Information may include, without limitation, computer programs, code, algorithms,\nnames and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and\nother technical, business, financial and product development plans, forecasts, strategies and information.\n2. Confidentiality Obligation. The Receiving Party agrees (i) to protect the Confidential Information by using the same degree of care,\nbut not less than a reasonable degree of care, to prevent the unauthorized dissemination or publication of the Confidential Information as the\nReceiving Party uses to protect its own confidential or proprietary information of a like nature and (ii) not to use the Confidential Information for\nany purpose other than to evaluate a potential business transaction between the parties. The Receiving Party shall limit access to the Disclosing\nParty’s Confidential Information to the Receiving Party’s employees and professional advisors who (i) have a need to know and have been notified\nthat such information is Confidential Information for the Purpose; and (ii) are under binding obligations of confidentiality no less restrictive than\nthose of this Agreement. The Receiving Party shall be responsible for any breaches by its employees and professional advisors of the Receiving\nParty’s obligations under this Agreement.\n3. Term. The Receiving Party’s obligation to protect Confidential Information hereunder shall expire three (3) years from the date of each\nsuch disclosure of Confidential Information, except when such Confidential Information disclosed by the Disclosing Party is source code, in which\ncase the Receiving Party’s obligations to protect such Confidential Information shall be perpetual.\n4. Exclusions. Confidential Information shall not include Confidential Information that: (i) is or becomes a matter of public knowledge\nthrough no fault of the Receiving Party; or (ii) was rightfully in the Receiving Party’s possession prior to receipt from the Disclosing Party as shown\nby the Receiving Party’s files and records immediately prior to the time of disclosure; or (iii) was rightfully disclosed to the Receiving Party by a\nthird party that lawfully and rightfully possesses such information and has no obligations of confidentiality; or (iv) is independently developed by the\nReceiving Party without use of or reference to the Disclosing Party’s Confidential Information. The Receiving Party may disclose Confidential\nInformation pursuant to any statutory or regulatory authority or court order, provided the Disclosing Party is given prompt prior written notice of\nsuch requirement and the scope of such disclosure is limited to the extent possible.\n5. Ownership/Return of Materials. All Confidential Information, unless otherwise specified in writing, remains the property of the\nDisclosing Party. Upon written request by the Disclosing Party at any time, the Receiving Party shall: (i) promptly turn over to the Disclosing Party\nall Confidential Information of the Disclosing Party, all documents or media containing the Confidential Information, and any and all\n1\ncopies or extracts thereof, that the Receiving Party possesses or controls; or (ii) promptly destroy the Confidential Information, and any and all\ncopies or extracts thereof that the Receiving Party possesses or controls, and provide the Disclosing Party with written certification of such\ndestruction signed by an authorized representative of the Receiving Party.\n6. Equitable Relief. The Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party’s Confidential\nInformation, there may be no adequate remedy at law for any breach of its obligations. The Receiving Party further acknowledges that any such\nbreach may allow the Receiving Party or third parties to unfairly compete with the Disclosing Party resulting in irreparable harm to the Disclosing\nParty and, therefore, that upon any such breach or any threat thereof, the Disclosing Party shall be entitled to seek appropriate equitable relief,\nincluding but not limited to injunction in addition to whatever remedies it may have at law. The Receiving Party will notify the Disclosing Party in\nwriting immediately upon the occurrence of any such unauthorized release or other breach.\n7. Warranty. THE CONFIDENTIAL INFORMATION DISCLOSED UNDER THIS AGREEMENT IS DELIVERED “AS IS,” AND\nALL REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OR CONDITIONS FOR\nFITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE AND NON-INFRINGEMENT ARE HEREBY DISCLAIMED .\n8. Export. Each party agrees that the export of encryption related information and encryption-enabled software from the United States may\nbe regulated by US law, and agree to comply with such laws and regulations.\n9. Notices. All notices required or permitted to be given under this Agreement shall be given in writing and shall be effective from the date\nsent by registered or certified mail, by hand, facsimile or overnight courier to the addresses of the parties set forth above, or such other address as\neither party shall have furnished to the other pursuant to this Section 9.\n10. Independent Development. The Disclosing Party understands that the Receiving Party may currently or in the future be developing\ninformation internally, or receiving information from other parties that may be similar to the Disclosing Party’s information. Accordingly, nothing in\nthis Agreement will be construed as a representation or inference that the Receiving Party will not develop products, or have products developed for\nit, that, without violation of this Agreement, compete with the products or systems contemplated by the Disclosing Party’s Confidential Information.\nFurther, Confidential Information as defined in Section 1 above shall not include the residuals resulting from access to such Confidential\nInformation. As used herein, residuals means information in intangible form which is unintentionally retained in the unaided memories of Receiving\nParty’s employees who have had access to the Disclosing Party’s Confidential Information. The foregoing shall not be deemed to grant to either\nparty a license under the Disclosing Party’s copyrights or patents.\n11 No Solicitation. Each of the parties agrees that for a period of 9 (nine) months from the date hereof, it shall not, and shall cause its\nemployees not to, solicit for employment or for independent consulting services any employee of such other party. The parties agree that a breach of\nthis Section 11 shall require as the sole and exclusive remedy, the payment of liquidated damages equal to 50% of the base salary of any employees\nhired in violation of this section. Each party also agrees that its rights under this Section 11 shall automatically terminate upon a change of control of\nsuch party (more than 50% change in the beneficial ownership of such party), cessation of the conduct of regular business by such party, or an event\nof liquidation of such party.\n12. Restriction Regarding Securities. Each of the parties agrees that it shall not purchase or sell any direct or derivative interest in the\ncommon stock of the other party for six months from the date hereof, or, if later, the date allowed by applicable securities laws.\n13. General. This Agreement supersedes all prior discussions and writings with respect to the subject matter hereof, and constitutes the\nentire agreement between the parties with respect to the subject matter hereof. No waiver or modification of this Agreement will be binding upon\neither party unless made in writing and signed by a duly authorized representative of each party and no failure or\n2\ndelay in enforcing any right will be deemed a waiver. Neither party may assign this Agreement, or its limited rights or obligations hereunder, to any\nthird party without the prior written consent of the other party. The parties understand that nothing herein requires either party to proceed with any\nproposed transaction or relationship in connection with which Confidential Information may be disclosed. In the event that any of the provisions of\nthis Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions hereof shall remain in\nfull force and effect. This Agreement shall be governed by the laws of the State of California, without regard to conflicts of law provisions. The\nheadings to the Sections of this Agreement are included merely for reference and shall not affect the meaning of the language included therein. This\nAgreement is written in the English language only, which language shall be controlling in all respects. This Agreement may be delivered by\nfacsimile and signed in counterparts, each of which shall be deemed an original and both of which together shall be considered as one fully executed\nagreement.\n3\nUnderstood and agreed:\nOPENWAVE SYSTEMS INC.\nSIGNALSOFT CORPORATION\nBy: /s/ DOUGLAS P. SOLOMON\nBy: /s/ ANDREW M. MURRAY\nSignature\nSignature\nName: Douglas P. Solomon\nName: Andrew M. Murray\nPrint or Type\nPrint or Type\nTitle: Associate General Counsel\nTitle: SVP, CFO\n4
a5328b08888c6b137f624e0478c233e5.pdf	effective_date jurisdiction party term	Exhibit D\nMutual Nondisclosure Agreement\nThis MUTUAL Non-Disclosure Agreement (the “Mutual NDA”), dated as of July 29, 2013 (the “Effective Date”), by and among Cytori\nTherapeutics, Inc., a Delaware corporation with its principal place of business located at 3020 Callan Road, San Diego, CA 92121, U.S.A.\n(“Cytori”), and BIMINI TECHNOLOGIES LLC, a corporation with its principal office at 3020 Callan Road, San Diego, CA 92121 (“Bimini”).\nCytori and Bimini may each individually be referred to herein as a “Party” and collectively as the “Parties,” as the context may require.\nRECITALS\nWHEREAS, Cytori has acquired, developed and possesses, through the expenditure of considerable time, effort and money, certain proprietary\nproducts and intellectual property rights (including medical devices, techniques and therapies, know-how, patents, patent applications and\ntechnical trade secrets) in connection with regenerative cell technology, cell/tissue banking technology, and adipose tissue processing and\npreparation technology used to carry out regenerative cell therapies and autologous fat transplantation (“Cytori Technology”); and\nWHEREAS, Cytori and Bimini have entered into the SALE AND EXCLUSIVE LICENSE / SUPPLY AGREEMENT by and between Cytori\nand Bimini, dated as of July 29, 2013 (the “SLSA”);\nWHEREAS, on and subject to the terms and conditions set forth herein, and in accordance with the SLSA, the Parties desire to exchange\nconfidential information and materials with each other (from time to time in connection with the manufacturing and supply of the Puregraft\nProducts and Celution Products (as defined in the SLSA).\nWHEREAS, Cytori and Bimini are willing to disclose and receive such confidential information and materials under the terms and conditions set\nforth in this Mutual NDA.\nNOW, THEREFORE, in consideration of the foregoing, the mutual promises herein contained, and for other good and valuable consideration, the\nreceipt and adequacy of which are acknowledged, the Parties agree as follows:\n1) Definitions.\n1.1\n“Confidential Information” shall mean (a) any information disclosed by or on behalf of one party (“Disclosing Party”) to another party\n(“Receiving Party”), marked as confidential if in written (including electronic) form, or if in oral form, if followed by a writing confirming\nthat the information is “Confidential” within thirty (30) business days after oral disclosure, (b) any information, whether or not such\nmaterials are marked or confirmed as confidential, that is treated as confidential by the Disclosing Party, and is reasonably understood to be\nthe Disclosing Party’s confidential information, and (c) information designated as “Technology & Source Codes in Escrow” (as defined in\nthe SLSA), including but not limited to information related to the Celution Products manufacturing technology and software codes as well\nas the PureGraft Product manufacturing technology. For the avoidance of doubt, “Confidential Information” shall\nalso include, without limitation, financial or business information of the Parties, tangible materials containing Confidential Information,\nsuch as, among other things, technical information, written or printed documents, processes and raw material reduced to formulae, and\ncomputer print-outs, disks, memory devices or tapes, whether machine or user readable; objects of a proprietary nature, including, without\nlimitation, specifications, biochemical and biological materials, reagents, samples, models, and prototypes, regardless of whether such\nConfidential Information is related to the Puregraft and/or Cytori Product(s) (as defined in the SLSA), or any matter relating to this Mutual\nNDA; and any proprietary information of a third party which has been entrusted to the Disclosing Party.\n1.2\n“Affiliate” shall mean, as to any Party, any Person that, directly or indirectly, controls, or is controlled by, or is under common control with,\nsuch Party, where “control” (including, with its correlative meanings, “controlled by” and “under common control with”) means (a) the\nbeneficial ownership of fifty percent (50%) or more of the outstanding voting securities of a Party, or (b) the possession, directly or\nindirectly, of the power to direct or cause the direction of management or policies of a Party, whether through the ownership of securities or\npartnership or other ownership interests, by contract or otherwise.\n2) Obligations.\n2.1 The Receiving Party shall hold in confidence and not use or disclose (except solely as permitted in Paragraph 4, below, and subject to the\nterms and conditions of Paragraph 4) Confidential Information of the Disclosing Party for any purposes other than those set forth in the\nSLSA (the “Purpose”). The Receiving Party shall treat the Confidential Information of the Disclosing Party as it would its own proprietary\ninformation, and shall take all reasonable precautions to prevent the disclosure of the Disclosing Party’s Confidential Information to any\nthird party, other than an Affiliate (as defined in the SLSA) of the Receiving Party which agrees to also be bound by this Mutual NDA,\nwithout the prior written consent of the Disclosing Party.\n2.2 The rights and obligations set forth herein shall commence on the Effective Date and shall continue in full force and effect for the duration\nof the term of the SLSA, unless earlier terminated as provided per the termination provisions in the SLSA. In such case of earlier\ntermination, such rights and obligations set forth herein shall expire seven (7) years from the date of termination. However, such rights and\nobligations shall run in perpetuity for information designated as “Trade Secret” by the Disclosing Party at the time of disclosure.\n3) Exceptions.\n3.1 Each Party shall be prospectively relieved of any and all obligations under Paragraph 2 of this Mutual NDA regarding information of\nthe Disclosing Party which:\n(a) is or becomes a part of the public domain through no fault of the Receiving Party or any party to whom the Receiving Party\nhas disclosed the information pursuant to Paragraph 4, below; or\n(b) the Receiving Party can demonstrate was in its rightful possession, without a restriction on use or disclosure, prior to receipt of\nthe information from the Disclosing Party or an entity acting on its behalf; or\n(c)\nthe Receiving Party can demonstrate was rightfully received from a third party without a restriction on use or disclosure; or\n(d) the Receiving Party can demonstrate by written evidence was independently developed by the Receiving Party without access\nto or use of (directly or indirectly) Confidential Information of the Disclosing Party; or\n(e) is required to be, and is, disclosed in response to a valid order from a judicial or administrative authority; provided, however,\nthat the Receiving Party shall promptly notify the Disclosing Party upon its receipt of such order, shall use commercially\nreasonable efforts to limit disclosure, and shall make commercially reasonable efforts to obtain confidential treatment or a\nprotective order for the disclosure so ordered, and prior to such disclosure to permit the Disclosing Party to oppose same by\nappropriate legal action.\n3.2 Confidential Information that is disclosed in accordance with this Mutual NDA shall not be deemed to be in the public domain\nmerely because any part of the Confidential Information is embodied in general disclosures, or because individual features,\ncomponents or combinations of the Confidential Information or portions thereof are now or become known to the public.\n4) Permitted Disclosure to Representatives. The Receiving Party shall disclose the Disclosing Party’s Confidential Information (a) only to its\nemployees, agents, consultants or independent contractors (the “Representatives”) on a “need to know” basis and solely in furtherance of\nthe Purpose; and (b) only if each such Representative shall have first entered into a written agreement with the Receiving Party whereby\nsuch Representative agrees to be bound by similar or more stringent obligations of nonuse and nondisclosure pertaining to the Confidential\nInformation as those imposed on the Receiving Party under this Mutual NDA. The Receiving Party shall ensure that such Representatives\ncomply with such obligations.\n5) Return or Destruction of Confidential Information. Upon the written request of the Disclosing Party, the Receiving Party shall return or\ndestroy all copies of the Confidential Information of the Disclosing Party; provided however, that the Receiving Party may retain one copy\nof such Confidential Information in its legal files for archival/compliance purposes only.\n6) No Other Rights. Nothing herein shall be construed (a) to grant to the Receiving Party any express or implied option, license or other right,\ntitle or interest in or ownership to the Confidential Information of the Disclosing Party; (b) to grant to the Receiving Party any option,\nlicense or right under any other intellectual property rights of the Disclosing Party; or (c) to obligate a Party to enter into any additional\nagreement granting any of the foregoing, by implication or otherwise.\n7) Remedy. The Receiving Party acknowledges and agrees that, due to the unique nature of the Confidential Information of the Disclosing\nParty, any unauthorized disclosure or use of the Disclosing Party’s Confidential Information may cause great or irreparable harm to the\nDisclosing Party, for which damages would not afford an adequate remedy. The Receiving Party further agrees that the Disclosing Party\nshall therefore have the right to seek and to obtain immediate temporary, preliminary and/or permanent injunctive relief, without any\nrequirement to post a bond or other security, in addition to any other rights and remedies it may have at law or in equity.\n8) Waiver. A Party’s failure to require any other Party to comply with any provision of this Mutual NDA shall not be deemed a waiver of such\nprovision or any other provision of this Mutual NDA.\n9) Amendment; Severability. Any modification to or waiver of this Mutual NDA must be made in writing and signed by all Parties, or else it\nshall not be effective. If any court of competent jurisdiction determines that any provision of this Mutual NDA is partially or wholly\nunenforceable under applicable law, such provision shall be construed or reformed so as to render it enforceable to the maximum extent\npermitted by applicable law, and the remaining provisions of this Mutual NDA shall remain in full force and effect.\n10) Entire Understanding. This Mutual NDA shall constitute the entire understanding by and among the Parties with respect to the subject\nmatter hereof, and any prior less restrictive oral and written understandings and agreements regarding Confidential Information are hereby\nsuperseded with respect to any disclosures of Confidential Information after the Effective Date. To the extent any previous non-disclosure\nor non-use agreement among the Parties, or between any two Parties, is more stringent than, or is equally stringent as, this Mutual NDA in\nany regard, then in that regard it shall remain effective in addition to the corresponding provisions of this Mutual NDA.\n11) Governing Law. This Mutual NDA shall be construed and interpreted in accordance with the laws of the State of New York, without regard\nto its choice of law principles.\n[The remainder of this page left intentionally blank]\nIN WITNESS WHEREOF, the Parties by their duly authorized representatives have caused this Mutual Non-Disclosure Agreement to be\nexecuted as of the Effective Date.\nCYTORI THERAPEUTICS, INC\nBIMINI TECHNOLOGIES LLC\nBy: /s/ Christopher J. Calhoun\nBy: /s/ Bradford A. Conlan\nName: Christopher J. Calhoun\nName: Bradford A. Conlan\nTitle: Chief Executive Officer\nTitle: Chief Executive Officer\nDate: July 29, 2013\nDate: July 29, 2013	Exhibit D\nMutual Nondisclosure Agreement\nThis MUTUAL Non-Disclosure Agreement (the “Mutual NDA”), dated as of July 29, 2013 (the “Effective Date”), by and among Cytori\nTherapeutics, Inc., a Delaware corporation with its principal place of business located at 3020 Callan Road, San Diego, CA 92121, U.S.A.\n(“Cytori”), and BIMINI TECHNOLOGIES LLC, a corporation with its principal office at 3020 Callan Road, San Diego, CA 92121 (“Bimini”).\nCytori and Bimini may each individually be referred to herein as a “Party” and collectively as the “Parties,” as the context may require.\nRECITALS\nWHEREAS, Cytori has acquired, developed and possesses, through the expenditure of considerable time, effort and money, certain proprietary\nproducts and intellectual property rights (including medical devices, techniques and therapies, know-how, patents, patent applications and\ntechnical trade secrets) in connection with regenerative cell technology, cell/tissue banking technology, and adipose tissue processing and\npreparation technology used to carry out regenerative cell therapies and autologous fat transplantation (“Cytori Technology”); and\nWHEREAS, Cytori and Bimini have entered into the SALE AND EXCLUSIVE LICENSE / SUPPLY AGREEMENT by and between Cytori\nand Bimini, dated as of July 29, 2013 (the “SLSA”);\nWHEREAS, on and subject to the terms and conditions set forth herein, and in accordance with the SLSA, the Parties desire to exchange\nconfidential information and materials with each other (from time to time in connection with the manufacturing and supply of the Puregraft\nProducts and Celution Products (as defined in the SLSA).\nWHEREAS, Cytori and Bimini are willing to disclose and receive such confidential information and materials under the terms and conditions set\nforth in this Mutual NDA.\nNOW, THEREFORE, in consideration of the foregoing, the mutual promises herein contained, and for other good and valuable consideration, the\nreceipt and adequacy of which are acknowledged, the Parties agree as follows:\n1)  Definitions.\n1.1 “Confidential Information” shall mean (a) any information disclosed by or on behalf of one party (“Disclosing Party”) to another party\n(“Receiving Party”), marked as confidential if in written (including electronic) form, or if in oral form, if followed by a writing confirming\nthat the information is “Confidential” within thirty (30) business days after oral disclosure, (b) any information, whether or not such\nmaterials are marked or confirmed as confidential, that is treated as confidential by the Disclosing Party, and is reasonably understood to be\nthe Disclosing Party’s confidential information, and (c) information designated as “Technology & Source Codes in Escrow” (as defined in\nthe SLSA), including but not limited to information related to the Celution Products manufacturing technology and software codes as well\nas the PureGraft Product manufacturing technology. For the avoidance of doubt, “Confidential Information” shall\n1.2\n2)\n2.1\n2.2\n3)\nalso include, without limitation, financial or business information of the Parties, tangible materials containing Confidential Information,\nsuch as, among other things, technical information, written or printed documents, processes and raw material reduced to formulae, and\ncomputer print-outs, disks, memory devices or tapes, whether machine or user readable; objects of a proprietary nature, including, without\nlimitation, specifications, biochemical and biological materials, reagents, samples, models, and prototypes, regardless of whether such\nConfidential Information is related to the Puregraft and/or Cytori Product(s) (as defined in the SLSA), or any matter relating to this Mutual\nNDA; and any proprietary information of a third party which has been entrusted to the Disclosing Party.\n“Affiliate” shall mean, as to any Party, any Person that, directly or indirectly, controls, or is controlled by, or is under common control with,\nsuch Party, where “control” (including, with its correlative meanings, “controlled by” and “under common control with”) means (a) the\nbeneficial ownership of fifty percent (50%) or more of the outstanding voting securities of a Party, or (b) the possession, directly or\nindirectly, of the power to direct or cause the direction of management or policies of a Party, whether through the ownership of securities or\npartnership or other ownership interests, by contract or otherwise.\nObligations.\nThe Receiving Party shall hold in confidence and not use or disclose (except solely as permitted in Paragraph 4, below, and subject to the\nterms and conditions of Paragraph 4) Confidential Information of the Disclosing Party for any purposes other than those set forth in the\nSLSA (the “Purpose”). The Receiving Party shall treat the Confidential Information of the Disclosing Party as it would its own proprietary\ninformation, and shall take all reasonable precautions to prevent the disclosure of the Disclosing Party’s Confidential Information to any\nthird party, other than an Affiliate (as defined in the SLSA) of the Receiving Party which agrees to also be bound by this Mutual NDA,\nwithout the prior written consent of the Disclosing Party.\nThe rights and obligations set forth herein shall commence on the Effective Date and shall continue in full force and effect for the duration\nof the term of the SLSA, unless earlier terminated as provided per the termination provisions in the SLSA. In such case of earlier\ntermination, such rights and obligations set forth herein shall expire seven (7) years from the date of termination. However, such rights and\nobligations shall run in perpetuity for information designated as “Trade Secret” by the Disclosing Party at the time of disclosure.\nExceptions.\n3.1 Each Party shall be prospectively relieved of any and all obligations under Paragraph 2 of this Mutual NDA regarding information of\nthe Disclosing Party which:\n(a)  isorbecomes a part of the public domain through no fault of the Receiving Party or any party to whom the Receiving Party\nhas disclosed the information pursuant to Paragraph 4, below; or\n(b)  the Receiving Party can demonstrate was in its rightful possession, without a restriction on use or disclosure, prior to receipt of\nthe information from the Disclosing Party or an entity acting on its behalf; or\n4)\n5)\n6)\n7)\n(c)  the Receiving Party can demonstrate was rightfully received from a third party without a restriction on use or disclosure; or\n(d)  the Receiving Party can demonstrate by written evidence was independently developed by the Receiving Party without access\nto or use of (directly or indirectly) Confidential Information of the Disclosing Party; or\n(e)  isrequired to be, and is, disclosed in response to a valid order from a judicial or administrative authority; provided, however,\nthat the Receiving Party shall promptly notify the Disclosing Party upon its receipt of such order, shall use commercially\nreasonable efforts to limit disclosure, and shall make commercially reasonable efforts to obtain confidential treatment or a\nprotective order for the disclosure so ordered, and prior to such disclosure to permit the Disclosing Party to oppose same by\nappropriate legal action.\n3.2 Confidential Information that is disclosed in accordance with this Mutual NDA shall not be deemed to be in the public domain\nmerely because any part of the Confidential Information is embodied in general disclosures, or because individual features,\ncomponents or combinations of the Confidential Information or portions thereof are now or become known to the public.\nPermitted Disclosure to Representatives. The Receiving Party shall disclose the Disclosing Party’s Confidential Information (a) only to its\nemployees, agents, consultants or independent contractors (the “Representatives”) on a “need to know” basis and solely in furtherance of\nthe Purpose; and (b) only if each such Representative shall have first entered into a written agreement with the Receiving Party whereby\nsuch Representative agrees to be bound by similar or more stringent obligations of nonuse and nondisclosure pertaining to the Confidential\nInformation as those imposed on the Receiving Party under this Mutual NDA. The Receiving Party shall ensure that such Representatives\ncomply with such obligations.\nReturn or Destruction of Confidential Information. Upon the written request of the Disclosing Party, the Receiving Party shall return or\ndestroy all copies of the Confidential Information of the Disclosing Party; provided however, that the Receiving Party may retain one copy\nof such Confidential Information in its legal files for archival/compliance purposes only.\nNo Other Rights. Nothing herein shall be construed (a) to grant to the Receiving Party any express or implied option, license or other right,\ntitle or interest in or ownership to the Confidential Information of the Disclosing Party; (b) to grant to the Receiving Party any option,\nlicense or right under any other intellectual property rights of the Disclosing Party; or (c) to obligate a Party to enter into any additional\nagreement granting any of the foregoing, by implication or otherwise.\nRemedy. The Receiving Party acknowledges and agrees that, due to the unique nature of the Confidential Information of the Disclosing\nParty, any unauthorized disclosure or use of the Disclosing Party’s Confidential Information may cause great or irreparable harm to the\nDisclosing Party, for which damages would not afford an adequate remedy. The Receiving Party further agrees that the Disclosing Party\nshall therefore have the right to seek and to obtain immediate temporary, preliminary and/or permanent injunctive relief, without any\nrequirement to post a bond or other security, in addition to any other rights and remedies it may have at law or in equity.\n8)\n9)\n10)\n11)\nWaiver. A Party’s failure to require any other Party to comply with any provision of this Mutual NDA shall not be deemed a waiver of such\nprovision or any other provision of this Mutual NDA.\nAmendment; Severability. Any modification to or waiver of this Mutual NDA must be made in writing and signed by all Parties, or else it\nshall not be effective. If any court of competent jurisdiction determines that any provision of this Mutual NDA is partially or wholly\nunenforceable under applicable law, such provision shall be construed or reformed so as to render it enforceable to the maximum extent\npermitted by applicable law, and the remaining provisions of this Mutual NDA shall remain in full force and effect.\nEntire Understanding. This Mutual NDA shall constitute the entire understanding by and among the Parties with respect to the subject\nmatter hereof, and any prior less restrictive oral and written understandings and agreements regarding Confidential Information are hereby\nsuperseded with respect to any disclosures of Confidential Information after the Effective Date. To the extent any previous non-disclosure\nor non-use agreement among the Parties, or between any two Parties, is more stringent than, or is equally stringent as, this Mutual NDA in\nany regard, then in that regard it shall remain effective in addition to the corresponding provisions of this Mutual NDA.\nGoverning Law. This Mutual NDA shall be construed and interpreted in accordance with the laws of the State of New York, without regard\nto its choice of law principles.\n[The remainder of this page left intentionally blank]\fIN WITNESS WHEREQF, the Parties by their duly authorized representatives have caused this Mutual Non-Disclosure Agreement to be\nexecuted as of the Effective Date.\nCYTORI THERAPEUTICS, INC BIMINI TECHNOLOGIES LLC\nBy: /s/ Christopher J. Calhoun By: /s/ Bradford A. Conlan\nName: Christopher J. Calhoun Name: Bradford A. Conlan\nTitle: Chief Executive Officer Title: Chief Executive Officer\nDate: July 29, 2013 Date: July 29, 2013	Exhibit D\nMutual Nondisclosure Agreement\nThis MUTUAL Non-Disclosure Agreement (the "Mutual NDA"), dated as of July 29, 2013 (the "Effective Date"), by and among Cytori\nTherapeutics, Inc., a Delaware corporation with its principal place of business located at 3020 Callan Road, San Diego, CA 92121, U.S.A.\n("Cytori"), and BIMINI TECHNOLOGIES LLC, a corporation with its principal office at 3020 Callan Road, San Diego, CA 92121 ("Bimini").\nCytori and Bimini may each individually be referred to herein as a "Party" and collectively as the "Parties," as the context may require.\nRECITALS\nWHEREAS, Cytori has acquired, developed and possesses, through the expenditure of considerable time, effort and money, certain proprietary\nproducts and intellectual property rights (including medical devices, techniques and therapies, know-how, patents, patent applications and\ntechnical trade secrets) in connection with regenerative cell technology, cell/tissue banking technology, and adipose tissue processing and\npreparation technology used to carry out regenerative cell therapies and autologous fat transplantation ("Cytori Technology"); and\nWHEREAS, Cytori and Bimini have entered into the SALE AND EXCLUSIVE LICENSE / SUPPLY AGREEMENT by and between Cytori\nand Bimini, dated as of July 29, 2013 (the "SLSA");\nWHEREAS, on and subject to the terms and conditions set forth herein, and in accordance with the SLSA, the Parties desire to exchange\nconfidential information and materials with each other (from time to time in connection with the manufacturing and supply of the Puregraft\nProducts and Celution Products (as defined in the SLSA).\nWHEREAS, Cytori and Bimini are willing to disclose and receive such confidential information and materials under the terms and conditions set\nforth in this Mutual NDA.\nNOW, THEREFORE, in consideration of the foregoing, the mutual promises herein contained, and for other good and valuable consideration, the\nreceipt and adequacy of which are acknowledged, the Parties agree as follows:\n1) Definitions.\n1.1 "Confidential Information" shall mean (a) any information disclosed by or on behalf of one party ("Disclosing Party") to another party\n("Receiving Party"), marked as confidential if in written (including electronic) form, or if in oral form, if followed by a writing confirming\nthat the information is "Confidential" within thirty (30) business days after oral disclosure, (b) any information, whether or not such\nmaterials are marked or confirmed as confidential, that is treated as confidential by the Disclosing Party, and is reasonably understood to be\nthe\nDisclosing Party's confidential information, and (c) information designated as "Technology & Source Codes in Escrow" (as defined in\nthe SLSA), including but not limited to information related to the Celution Products manufacturing technology and software codes as well\nas the PureGraft Product manufacturing technology. For the avoidance of doubt, "Confidential Information" shall\nalso include, without limitation, financial or business information of the Parties, tangible materials containing Confidential Information,\nsuch as, among other things, technical information, written or printed documents, processes and raw material reduced to formulae, and\ncomputer print-outs, disks, memory devices or tapes, whether machine or user readable; objects of a proprietary nature, including, without\nlimitation, specifications, biochemical and biological materials, reagents, samples, models, and prototypes, regardless of whether such\nConfidential Information is related to the Puregraft and/or Cytori Product(s) (as defined in the SLSA), or any matter relating to this Mutual\nNDA; and any proprietary information of a third party which has been entrusted to the Disclosing Party.\n1.2\n"Affiliate" shall mean, as to any Party, any Person that, directly or indirectly, controls, or is controlled by, or is under common control with,\nsuch Party, where "control" (including, with its correlative meanings, "controlled by" and "under common control with") means (a) the\nbeneficial ownership of fifty percent (50%) or more of the outstanding voting securities of a Party, or (b) the possession, directly or\nindirectly, of the power to direct or cause the direction of management or policies of a Party, whether through the ownership of securities\nor\npartnership or other ownership interests, by contract or otherwise.\n2) Obligations.\n2.1 The Receiving Party shall hold in confidence and not use or disclose (except solely as permitted in Paragraph 4, below, and subject to the\nterms and conditions of Paragraph 4) Confidential Information of the Disclosing Party for any purposes other than those set forth in the\nSLSA (the "Purpose"). The Receiving Party shall treat the Confidential Information of the Disclosing Party as it would its own proprietary\ninformation, and shall take all reasonable precautions to prevent the disclosure of the Disclosing Party's Confidential Information to any\nthird party, other than an Affiliate (as defined in the SLSA) of the Receiving Party which agrees to also be bound by this Mutual NDA,\nwithout the prior written consent of the Disclosing Party.\n2.2\nThe rights and obligations set forth herein shall commence on the Effective Date and shall continue in full force and effect for the duration\nof the term of the SLSA, unless earlier terminated as provided per the termination provisions in the SLSA. In such case of earlier\ntermination, such rights and obligations set forth herein shall expire seven (7) years from the date of termination. However, such rights and\nobligations shall run in perpetuity for information designated as "Trade Secret" by the Disclosing Party at the time of disclosure.\n3) Exceptions.\n3.1 Each Party shall be prospectively relieved of any and all obligations under Paragraph 2 of this Mutual NDA regarding information of\nthe Disclosing Party which:\n(a)\nis or becomes a part of the public domain through no fault of the Receiving Party or any party to whom the Receiving Party\nhas disclosed the information pursuant to Paragraph 4, below; or\n(b)\nthe Receiving Party can demonstrate was in its rightful possession, without a restriction on use or disclosure, prior to receipt of\nthe information from the Disclosing Party or an entity acting on its behalf; or\n(c)\nthe Receiving Party can demonstrate was rightfully received from a third party without a restriction on use or disclosure;\nor\n(d)\nthe Receiving Party can demonstrate by written evidence was independently developed by the Receiving Party without access\nto or use of (directly or indirectly) Confidential Information of the Disclosing Party; or\n(e)\nis required to be, and is, disclosed in response to a valid order from a judicial or administrative authority; provided, however,\nthat the Receiving Party shall promptly notify the Disclosing Party upon its receipt of such order, shall use commercially\nreasonable efforts to limit disclosure, and shall make commercially reasonable efforts to obtain confidential treatment or a\nprotective order for the disclosure so ordered, and prior to such disclosure to permit the Disclosing Party to oppose same\nby\nappropriate legal action.\n3.2\nConfidential Information that is disclosed in accordance with this Mutual NDA shall not be deemed to be in the public domain\nmerely because any part of the Confidential Information is embodied in general disclosures, or because individual features,\ncomponents or combinations of the Confidential Information or portions thereof are now or become known to the public.\n4)\nPermitted Disclosure to Representatives. The Receiving Party shall disclose the Disclosing Party's Confidential Information (a) only to its\nemployees, agents, consultants or independent contractors (the "Representatives") on a "need to know" basis and solely in furtherance of\nthe Purpose; and (b) only if each such Representative shall have first entered into a written agreement with the Receiving Party whereby\nsuch Representative agrees to be bound by similar or more stringent obligations of nonuse and nondisclosure pertaining to the Confidential\nInformation as those imposed on the Receiving Party under this Mutual NDA. The Receiving Party shall ensure that such Representatives\ncomply with such obligations.\n5)\nReturn or Destruction of Confidential Information. Upon the written request of the Disclosing Party, the Receiving Party shall return or\ndestroy all copies of the Confidential Information of the Disclosing Party; provided however, that the Receiving Party may retain one copy\nof such Confidential Information in its legal files for archival/compliance purposes only.\n6)\nNo Other Rights. Nothing herein shall be construed (a) to grant to the Receiving Party any express or implied option, license or other right,\ntitle or interest in or ownership to the Confidential Information of the Disclosing Party; (b) to grant to the Receiving Party any option,\nlicense or right under any other intellectual property rights of the Disclosing Party; or (c) to obligate a Party to enter into any additional\nagreement granting any of the foregoing, by implication or otherwise.\n7)\nRemedy.\nThe\nReceiving\nParty\nacknowledges\nand\nagrees\nthat,\ndue\nto\nthe\nunique\nnature\nof\nthe\nConfidential\nInformation\nof\nthe\nDisclosing\nParty, any unauthorized disclosure or use of the Disclosing Party's Confidentia Information may cause great or irreparable harm to the\nDisclosing Party, for which damages would not afford an adequate remedy. The Receiving Party further agrees that the Disclosing Party\nshall therefore have the right to seek and to obtain immediate temporary, preliminary and/or permanent injunctive relief, without any\nrequirement to post a bond or other security, in addition to any other rights and remedies it may have at law or in equity.\n8)\nWaiver. A Party's failure to require any other Party to comply with any provision of this Mutual NDA shall not be deemed a waiver of such\nprovision or any other provision of this Mutual NDA.\n9)\nAmendment; Severability. Any modification to or waiver of this Mutual NDA must be made in writing and signed by all Parties, or else it\nshall not be effective. If any court of competent jurisdiction determines that any provision of this Mutual NDA is partially or wholly\nunenforceable under applicable law, such provision shall be construed or reformed so as to render it enforceable to the maximum extent\npermitted by applicable law, and the remaining provisions of this Mutual NDA shall remain in full force and effect.\n10) Entire Understanding. This Mutual NDA shall constitute the entire understanding by and among the Parties with respect to the subject\nmatter hereof, and any prior less restrictive oral and written understandings and agreements regarding Confidential Information are hereby\nsuperseded with respect to any disclosures of Confidential Information after the Effective Date. To the extent any previous non-disclosure\nor non-use agreement among the Parties, or between any two Parties, is more stringent than, or is equally stringent as, this Mutual NDA in\nany regard, then in that regard it shall remain effective in addition to the corresponding provisions of this Mutual NDA.\n11) Governing Law. This Mutual NDA shall be construed and interpreted in accordance with the laws of the State of New York, without regard\nto its choice of law principles.\n[The remainder of this page left intentionally blank]\nIN WITNESS WHEREOF, the Parties by their duly authorized representatives have caused this Mutual Non-Disclosure Agreement to be\nexecuted as of the Effective Date.\nCYTORI THERAPEUTICS, INC\nBIMINI TECHNOLOGIES LLC\nBy: /s/ Christopher J. Calhoun\nBy: /s/ Bradford A. Conlan\nName: Christopher J. Calhoun\nName: Bradford A. Conlan\nTitle: Chief Executive Officer\nTitle: Chief Executive Officer\nDate: July 29, 2013\nDate: July 29, 2013	Exhibit D\nMutual Nondisclosure Agreement\nThis MUTUAL Non-Disclosure Agreement (the “Mutual NDA”), dated as of July 29, 2013 (the “Effective Date”), by and among Cytori\nTherapeutics, Inc., a Delaware corporation with its principal place of business located at 3020 Callan Road, San Diego, CA 92121, U.S.A.\n(“Cytori”), and BIMINI TECHNOLOGIES LLC, a corporation with its principal office at 3020 Callan Road, San Diego, CA 92121 (“Bimini”).\nCytori and Bimini may each individually be referred to herein as a “Party” and collectively as the “Parties,” as the context may require.\nRECITALS\nWHEREAS, Cytori has acquired, developed and possesses, through the expenditure of considerable time, effort and money, certain proprietary\nproducts and intellectual property rights (including medical devices, techniques and therapies, know-how, patents, patent applications and\ntechnical trade secrets) in connection with regenerative cell technology, cell/tissue banking technology, and adipose tissue processing and\npreparation technology used to carry out regenerative cell therapies and autologous fat transplantation (“Cytori Technology”); and\nWHEREAS, Cytori and Bimini have entered into the SALE AND EXCLUSIVE LICENSE / SUPPLY AGREEMENT by and between Cytori\nand Bimini, dated as of July 29, 2013 (the “SLSA”);\nWHEREAS, on and subject to the terms and conditions set forth herein, and in accordance with the SLSA, the Parties desire to exchange\nconfidential information and materials with each other (from time to time in connection with the manufacturing and supply of the Puregraft\nProducts and Celution Products (as defined in the SLSA).\nWHEREAS, Cytori and Bimini are willing to disclose and receive such confidential information and materials under the terms and conditions set\nforth in this Mutual NDA.\nNOW, THEREFORE, in consideration of the foregoing, the mutual promises herein contained, and for other good and valuable consideration, the\nreceipt and adequacy of which are acknowledged, the Parties agree as follows:\n1) Definitions.\n1.1\n“Confidential Information” shall mean (a) any information disclosed by or on behalf of one party (“Disclosing Party”) to another party\n(“Receiving Party”), marked as confidential if in written (including electronic) form, or if in oral form, if followed by a writing confirming\nthat the information is “Confidential” within thirty (30) business days after oral disclosure, (b) any information, whether or not such\nmaterials are marked or confirmed as confidential, that is treated as confidential by the Disclosing Party, and is reasonably understood to be\nthe Disclosing Party’s confidential information, and (c) information designated as “Technology & Source Codes in Escrow” (as defined in\nthe SLSA), including but not limited to information related to the Celution Products manufacturing technology and software codes as well\nas the PureGraft Product manufacturing technology. For the avoidance of doubt, “Confidential Information” shall\nalso include, without limitation, financial or business information of the Parties, tangible materials containing Confidential Information,\nsuch as, among other things, technical information, written or printed documents, processes and raw material reduced to formulae, and\ncomputer print-outs, disks, memory devices or tapes, whether machine or user readable; objects of a proprietary nature, including, without\nlimitation, specifications, biochemical and biological materials, reagents, samples, models, and prototypes, regardless of whether such\nConfidential Information is related to the Puregraft and/or Cytori Product(s) (as defined in the SLSA), or any matter relating to this Mutual\nNDA; and any proprietary information of a third party which has been entrusted to the Disclosing Party.\n1.2\n“Affiliate” shall mean, as to any Party, any Person that, directly or indirectly, controls, or is controlled by, or is under common control with,\nsuch Party, where “control” (including, with its correlative meanings, “controlled by” and “under common control with”) means (a) the\nbeneficial ownership of fifty percent (50%) or more of the outstanding voting securities of a Party, or (b) the possession, directly or\nindirectly, of the power to direct or cause the direction of management or policies of a Party, whether through the ownership of securities or\npartnership or other ownership interests, by contract or otherwise.\n2) Obligations.\n2.1 The Receiving Party shall hold in confidence and not use or disclose (except solely as permitted in Paragraph 4, below, and subject to the\nterms and conditions of Paragraph 4) Confidential Information of the Disclosing Party for any purposes other than those set forth in the\nSLSA (the “Purpose”). The Receiving Party shall treat the Confidential Information of the Disclosing Party as it would its own proprietary\ninformation, and shall take all reasonable precautions to prevent the disclosure of the Disclosing Party’s Confidential Information to any\nthird party, other than an Affiliate (as defined in the SLSA) of the Receiving Party which agrees to also be bound by this Mutual NDA,\nwithout the prior written consent of the Disclosing Party.\n2.2 The rights and obligations set forth herein shall commence on the Effective Date and shall continue in full force and effect for the duration\nof the term of the SLSA, unless earlier terminated as provided per the termination provisions in the SLSA. In such case of earlier\ntermination, such rights and obligations set forth herein shall expire seven (7) years from the date of termination. However, such rights and\nobligations shall run in perpetuity for information designated as “Trade Secret” by the Disclosing Party at the time of disclosure.\n3) Exceptions.\n3.1 Each Party shall be prospectively relieved of any and all obligations under Paragraph 2 of this Mutual NDA regarding information of\nthe Disclosing Party which:\n(a) is or becomes a part of the public domain through no fault of the Receiving Party or any party to whom the Receiving Party\nhas disclosed the information pursuant to Paragraph 4, below; or\n(b) the Receiving Party can demonstrate was in its rightful possession, without a restriction on use or disclosure, prior to receipt of\nthe information from the Disclosing Party or an entity acting on its behalf; or\n(c)\nthe Receiving Party can demonstrate was rightfully received from a third party without a restriction on use or disclosure; or\n(d) the Receiving Party can demonstrate by written evidence was independently developed by the Receiving Party without access\nto or use of (directly or indirectly) Confidential Information of the Disclosing Party; or\n(e) is required to be, and is, disclosed in response to a valid order from a judicial or administrative authority; provided, however,\nthat the Receiving Party shall promptly notify the Disclosing Party upon its receipt of such order, shall use commercially\nreasonable efforts to limit disclosure, and shall make commercially reasonable efforts to obtain confidential treatment or a\nprotective order for the disclosure so ordered, and prior to such disclosure to permit the Disclosing Party to oppose same by\nappropriate legal action.\n3.2 Confidential Information that is disclosed in accordance with this Mutual NDA shall not be deemed to be in the public domain\nmerely because any part of the Confidential Information is embodied in general disclosures, or because individual features,\ncomponents or combinations of the Confidential Information or portions thereof are now or become known to the public.\n4) Permitted Disclosure to Representatives. The Receiving Party shall disclose the Disclosing Party’s Confidential Information (a) only to its\nemployees, agents, consultants or independent contractors (the “Representatives”) on a “need to know” basis and solely in furtherance of\nthe Purpose; and (b) only if each such Representative shall have first entered into a written agreement with the Receiving Party whereby\nsuch Representative agrees to be bound by similar or more stringent obligations of nonuse and nondisclosure pertaining to the Confidential\nInformation as those imposed on the Receiving Party under this Mutual NDA. The Receiving Party shall ensure that such Representatives\ncomply with such obligations.\n5) Return or Destruction of Confidential Information. Upon the written request of the Disclosing Party, the Receiving Party shall return or\ndestroy all copies of the Confidential Information of the Disclosing Party; provided however, that the Receiving Party may retain one copy\nof such Confidential Information in its legal files for archival/compliance purposes only.\n6) No Other Rights. Nothing herein shall be construed (a) to grant to the Receiving Party any express or implied option, license or other right,\ntitle or interest in or ownership to the Confidential Information of the Disclosing Party; (b) to grant to the Receiving Party any option,\nlicense or right under any other intellectual property rights of the Disclosing Party; or (c) to obligate a Party to enter into any additional\nagreement granting any of the foregoing, by implication or otherwise.\n7) Remedy. The Receiving Party acknowledges and agrees that, due to the unique nature of the Confidential Information of the Disclosing\nParty, any unauthorized disclosure or use of the Disclosing Party’s Confidential Information may cause great or irreparable harm to the\nDisclosing Party, for which damages would not afford an adequate remedy. The Receiving Party further agrees that the Disclosing Party\nshall therefore have the right to seek and to obtain immediate temporary, preliminary and/or permanent injunctive relief, without any\nrequirement to post a bond or other security, in addition to any other rights and remedies it may have at law or in equity.\n8) Waiver. A Party’s failure to require any other Party to comply with any provision of this Mutual NDA shall not be deemed a waiver of such\nprovision or any other provision of this Mutual NDA.\n9) Amendment; Severability. Any modification to or waiver of this Mutual NDA must be made in writing and signed by all Parties, or else it\nshall not be effective. If any court of competent jurisdiction determines that any provision of this Mutual NDA is partially or wholly\nunenforceable under applicable law, such provision shall be construed or reformed so as to render it enforceable to the maximum extent\npermitted by applicable law, and the remaining provisions of this Mutual NDA shall remain in full force and effect.\n10) Entire Understanding. This Mutual NDA shall constitute the entire understanding by and among the Parties with respect to the subject\nmatter hereof, and any prior less restrictive oral and written understandings and agreements regarding Confidential Information are hereby\nsuperseded with respect to any disclosures of Confidential Information after the Effective Date. To the extent any previous non-disclosure\nor non-use agreement among the Parties, or between any two Parties, is more stringent than, or is equally stringent as, this Mutual NDA in\nany regard, then in that regard it shall remain effective in addition to the corresponding provisions of this Mutual NDA.\n11) Governing Law. This Mutual NDA shall be construed and interpreted in accordance with the laws of the State of New York, without regard\nto its choice of law principles.\n[The remainder of this page left intentionally blank]\nIN WITNESS WHEREOF, the Parties by their duly authorized representatives have caused this Mutual Non-Disclosure Agreement to be\nexecuted as of the Effective Date.\nCYTORI THERAPEUTICS, INC\nBIMINI TECHNOLOGIES LLC\nBy: /s/ Christopher J. Calhoun\nBy: /s/ Bradford A. Conlan\nName: Christopher J. Calhoun\nName: Bradford A. Conlan\nTitle: Chief Executive Officer\nTitle: Chief Executive Officer\nDate: July 29, 2013\nDate: July 29, 2013
a5d9e80a972e73f6f9eb78bab20202b3.pdf	effective_date jurisdiction party term	Exhibit 10.2\nAMENDED AND RESTATED EMPLOYMENT, NON-COMPETE\nAND CONFIDENTIALITY AGREEMENT\n(amended and restated effective as of April 1, 2018)\nTHIS AMENDED AND RESTATED EMPLOYMENT, NON-COMPETE AND CONFIDENTIALITY\nAGREEMENT ("Agreement"), is entered into between Richard A. Montoni (the "Employee") and MAXIMUS,\nInc., a Virginia corporation with its principal place of business in Reston, Virginia (the "Corporation") with\nreference to the following:\nWHEREAS, the parties entered into that certain Executive Employment, Non-Compete and\nConfidentiality Agreement effective April 21, 2006, which was subsequently amended on November 20, 2007,\nDecember 22, 2009, October 7, 2013, and March 4, 2014 (as amended, the “Current Agreement”); and\nWHEREAS, the parties believe Employee possesses the experience and capabilities to provide\nvaluable service on behalf of the Corporation; and\nWHEREAS, the Corporation desires to employ Employee as Senior Advisor to the Chief Executive\nOfficer; and\nWHEREAS, Employee desires to be employed by the Corporation at the salary, benefits and other\nterms and conditions specified herein; and\nWHEREAS, the parties desire to amend and restate the Current Agreement in its entirety, effective as\nof April 1, 2018 (the “Effective Date”), pursuant to the terms and conditions of this Agreement.\nNOW, THEREFORE, in consideration of these premises and for other good and valuable\nconsideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:\n1.\nEmployment.\n1.1.Duties. The Corporation hereby employs Employee, and Employee hereby accepts such\nemployment, to serve as the Senior Advisor to the Chief Executive Officer. Employee hereby represents and\nwarrants that he is in good health and capable of performing the services required hereunder. Employee shall\nperform such services and duties as are delegated to Employee by the Corporation’s Board of Directors\n(“Board”) or the Chief Executive Officer as the designee of the Board. During the term of this Agreement,\nEmployee shall be an employee of the Corporation and shall devote such time and attention to the discharge\nof his duties as may be necessary and appropriate to accomplish and complete such duties, it being the\nunderstanding of the parties that Employee’s services shall not require Employee’s full time and attention and\nwill average to be approximately 50% of full-time.\nEmployee shall be nominated by the Board for election as a director holding the position of Vice\nChairman and shall serve as a member of the Board subject to his being so elected by the Corporation's\nstockholders; provided that, during the term of this Agreement, Employee shall serve on the Board without\nadditional compensation.\n1.2.Compensation.\n(a)Salary. As of the Effective Date, the Corporation shall pay Employee an annual salary of\n$1,000,000 ("Salary").\n(b)Bonus. During the term of this Agreement, Employee will be eligible for discretionary bonus\nawards as determined in the sole discretion of the Board. Employee, the Chairman of the Board and\nthe Chief Executive Officer will meet not less than quarterly and establish performance objectives for\nEmployee and incentive bonus targets as appropriate. During the term of this Agreement, Employee\nwill not be eligible for awards under the Corporation’s Management Bonus Plan and the 2017 Equity\nIncentive Plan (or successor plans) and will not participate in the Corporation’s Income Continuity\nProgram. Any other compensation shall be in the sole discretion of the Compensation Committee of\nthe Corporations’ Board of Directors.\n(c)Equity Awards. The Corporation agrees to proportionately adjust Employee’s vested and\nunvested equity awards in the event the Corporation declares an extraordinary dividend during the\nterm hereof. For these purposes, an “extraordinary dividend” would be any distribution per share\nhaving a value in excess of ten percent (10%) of the average trading price of the Corporation’s\ncommon stock during the three-month period preceding such distribution. Notwithstanding the\nexpiration or mutual termination of this Agreement, any Restricted Stock Units or other equity awards\npreviously made to Employee on or after October 1, 2013, shall vest according to their stated vesting\nschedules (or pursuant to the acceleration feature in connection with a Change in Control). For\navoidance of doubt, vesting and settlement of such Restricted Stock Units or other equity awards shall\noccur on the dates set forth in the stated vesting schedules (or pursuant to the acceleration feature in\nconnection with a Change in Control) and without regard to whether Employee is employed by the\nCorporation on any such dates.\n(d)Vacation, Insurance, Expenses, Etc. Employee shall receive such health, disability and life\ninsurance and other benefits and expense reimbursements, including but not limited to travel and\nentertainment, in a manner consistent with the Corporation's past practices and as are provided to the\nCorporation’s senior executives. The Corporation will reimburse Employee for the reasonable\nattorney’s fees incurred in connection with the review and negotiation of this Agreement.\n(e)Insurance and Indemnification. The Corporation shall maintain Employee as an insured\nparty on all directors' and officers' insurance maintained by the Corporation for the benefit of its\ndirectors and officers on at least the same basis as all other covered individuals and provide Employee\nwith at least the same corporate indemnification as its officers.\n1.3.Place of Performance. Employee may perform the advisory services under this Agreement from\nsuch locations as are determined by Employee, except that Employee shall upon reasonable advance notice\nby the Board or the Chief Executive Officer attend such meetings at the Corporation’s headquarters in Reston,\nVirginia or at such other locations as may be deemed necessary and in the best interests of the Corporation.\nIn furtherance of his performance of services under this Agreement, Employee may establish or make\narrangements for office space and administrative support in such locations as Employee shall determine. The\nCorporation shall either pay directly or reimburse Employee for the reasonable costs of such office space and\nadministrative support.\n1.4.Term; Termination. The term of the employment agreement set forth in this Section 1 shall be for a\nperiod commencing at the Effective Date and continuing until September 30, 2019 (the "Scheduled Term")\nprovided that this Agreement shall terminate:\n(a)by mutual written consent of the parties;\n(b)upon Employee's death or inability, by reason of physical or mental impairment, to perform\nsubstantially all of Employee's duties as contemplated herein for a continuous period of 120 days or\nmore; or\n(c)by the Corporation for Cause (as defined below).\nUpon any termination of employment under this Section 1.4, neither party shall have any obligation to\nthe other pursuant to this Section 1, but such termination shall have no effect on the obligations of the parties\nunder other provisions of this Agreement.\nUntil the Effective Date, the Current Agreement between the parties shall remain in full force and\neffect.\n1.5.Severance. The parties agree that in the event the Corporation terminates Employee's employment\nwithout Cause or Employee terminates the employment for Good Reason (as defined below) prior to the\nexpiration of the Scheduled Term, Employee shall be entitled to the following:\n(a) benefits, at the Corporation's expense, as provided under Section 1.2 for the greater of\nthe remainder of the Scheduled Term or twelve (12) months. To the extent that these payments are\nnot exempt from Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) under\nthe COBRA, reimbursement, in-kind benefit, or other applicable exceptions thereunder, such payments\nshall be made at the time and in the amount required under the documents governing each such\nbenefit;\n(b) continued vesting of stock options and Restricted Stock Units as set forth in Section\n1.2(c); and\n(c) a lump sum, payable within 30 days following termination of employment, equal to the\nSalary for the remainder of the Scheduled Term, which lump sum shall be considered a separate\npayment for purposes of Section 409A of the Code.\n1.6.Definitions. For purposes of the Agreement, “Cause” and “Good Reason” shall have the meanings\nprovided in the Corporation’s Income Continuity Program as it exists on the execution date of this Agreement.\n2.Non-Competition.\n2.1.Prohibited Activities.\n(a)Employee agrees that, during his employment with the Corporation and for a period of one\n(1) year after the termination of such employment, Employee will not engage in any Unethical Behavior\nwhich may adversely affect the Corporation. For the purpose of this Section 2.1, "Unethical Behavior"\nis defined as:\n(i)any attempt, successful or unsuccessful, by Employee to divert any existing or\npending contracts or subcontracts from the Corporation to any other firm, whether or not\naffiliated with Employee;\n(ii)any attempt, successful or unsuccessful, by Employee, to influence clients of the\nCorporation or organizations with which the Corporation has an existing or pending contract or\nproposal to refrain from doing business with the Corporation or to terminate existing business\nwith the Corporation;\n(iii)any attempt, successful or unsuccessful, by Employee to offer his services, or to\ninfluence any other employee of the Corporation to offer their services, to any firm to compete\nagainst the Corporation; or\n(iv)any attempt, successful or unsuccessful, by Employee to employ or offer\nemployment to, or cause any other person to employ or offer employment to any individual who\nwas an employee of the Corporation at any time during Employee’s last six months of\nemployment with the Corporation.\n(b)Employee shall notify any new employer, partner, association or any other firm or\ncorporation in competition with the Corporation with whom Employee shall become associated in any\ncapacity whatsoever of the provisions of this Section 2 and Employee agrees that the Corporation may\ngive such notice to such firm, corporation or other person.\n2.2.Business Opportunities; Conflicts of Interest; Other Employment and Activities of Employee.\n(a)Employee agrees promptly to advise the Corporation of, and provide the Corporation with an\nopportunity to pursue, all business opportunities of which Employee becomes aware that reasonably\nrelate to the present business conducted by the Corporation.\n(b)Employee, in his capacity as an employee of the Corporation, shall not cause the\nCorporation to engage in any business with any member of Employee's immediate family or with any\nperson or business entity in which Employee or any member of Employee's immediate family has any\nownership interest or financial interest, unless and until Employee has first fully disclosed such interest\nto and received written consent from the Board of Directors. As used herein, the term "immediate\nfamily" means Employee's spouse, natural or adopted children, parents or siblings and the term\n"financial interest" means any relationship with such person or business entity that may monetarily\nbenefit Employee or member of Employee's immediate family, including any lending relationship or the\nguarantying of any obligations of such person or business entity by Employee or member of his\nimmediate family.\n(c)The parties hereto agree that Employee may, consistent with this Section 2.2, continue his\ninvolvement with the Northern Virginia Technology Counsel and such other trade associations, civic\norganizations and educational institutions in which he is involved as of the Effective Date and may\nengage in such other activities and business opportunities which do not interfere with Employee’s\nability to perform the duties described in Section 1.1 .\n3.Confidentiality. Employee agrees that the Corporation's books, records, files and all other non-public\ninformation relating to the Corporation, its business, clients and employees are proprietary in nature and\ncontain trade secrets and shall be held in strict confidence by Employee, and shall not, either during the term\nof this Agreement or after the termination hereof, be used by Employee or disclosed, directly or indirectly, to\nany third party, except to the extent such use or disclosure is in furtherance of the Corporation's business or\nrequired by any law, rule, regulation or other legal process. The trade secrets or other proprietary or\nconfidential information referred to in the prior sentence includes, without limitation, all proposals to clients or\npotential clients, contracts, client or potential client lists, fee policies, financial information, administration or\nmarketing practices or procedures and all other information regarding the business of the Corporation and its\nclients not generally known to the public.\n4.Miscellaneous.\n4.1.Notices. All notices, requests, demands or other communications provided for in this Agreement\nshall be in writing and shall be delivered by hand, e-mail, sent prepaid by overnight delivery service or sent by\nthe United States mail, certified, postage prepaid, return receipt request, to the following:\nIf to the Corporation:\nMAXIMUS, Inc.\n1891 Metro Center Drive\nReston, Virginia 20190\nAttention: General Counsel\nIf to Employee:\nRichard A. Montoni\nAny notice, request, demand or other communication delivered or sent in the foregoing manner shall be\ndeemed given or made (as the case may be) upon the earliest of (i) the date it is actually received, (ii) the\nbusiness-day after the day on which it is delivered by hand or sent by e-mail, (iii) the business day after the\nday on which it is properly delivered to Federal Express (or a comparable overnight delivery service), or (iv)\nthe third business day after the date on which it is deposited in the United States mail. Either party may\nchange its address by notifying the other party of the new address in any manner permitted by this paragraph.\n4.2.Remedies. The parties agree and acknowledge that any violation by Employee of the terms hereof\nmay result in irreparable injury and damage to the Corporation or its clients, which may not adequately be\ncompensable in monetary damages, that the Corporation will have no adequate remedy at law therefor, and\nthat the Corporation may obtain such preliminary, temporary or permanent mandatory or restraining\ninjunctions, orders or decrees as may be necessary to protect it against, or on account of, any breach of the\nprovisions contained in this Agreement.\n4.3.No Obligation of Continued Employment. Employee understands that this Agreement does not\ncreate an obligation on the part of the Corporation to continue Employee's employment with the Corporation\nafter the expiration or termination of this Agreement.\n4.4.Benefit; Assignment. This Agreement shall bind and inure to the benefit of the parties and their\nrespective personal representatives, heirs, successors and assigns, provided this Agreement may not be\nassigned by either party without the consent of the other, except that the Corporation may assign this\nAgreement in connection with the merger, consolidation or sale of all or substantially all of its business or\nassets.\n4.5.Entire Agreement. This Agreement supersedes all prior agreements, written or oral, with respect to\nthe subject matter of this Agreement, other than the Current Agreement, which shall remain in full force and\neffect until the Effective Date.\n4.6.Severability. In the event that any one or more of the provisions contained herein shall be held to\nbe invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect\nany other provisions of this Agreement, and all other provisions shall remain in full force and effect. If any of\nthe provisions of this Agreement is held to be excessively broad, it shall be reformed and construed by limiting\nand reducing it so as to be enforceable to the maximum extent permitted by law.\n4.7.Waivers. No delay or omission by the Corporation in exercising any right under this Agreement will\noperate as a waiver of that or any other right. A waiver or consent given by the Corporation on any occasion is\neffective only in that instance and will not be construed as a bar to or waiver of any right on any other\noccasion.\n4.8.Captions. The captions of the various sections and paragraphs of this Agreement have been\ninserted only for the purpose of convenience; such captions are not a part of this Agreement and shall not be\ndeemed in any manner to modify, explain, enlarge or restrict any of the provisions of this Agreement.\n4.9.Governing Law and Jurisdiction. This Agreement shall in all events and for all purposes be\ngoverned by, and construed in accordance with, the laws of the Commonwealth of Virginia. Any action or\nproceeding against the parties relating in any way to this Agreement must be brought and enforced in the\ncourts of Fairfax County, Virginia or the Northern District of Virginia, and the parties irrevocably submit to the\njurisdiction of such courts in respect of any such action or proceeding.\n4.10.Amendments. No changes to this Agreement shall be binding unless in writing and signed by both\nthe parties.\n4.11 .Counterparts. This Agreement may be executed in several counterparts, each of which shall be\ndeemed an original, and all such counterparts shall constitute one instrument.\n4.12.Survival. The provisions of this Agreement shall survive the expiration or earlier termination of this\nAgreement, to the extent necessary to give effect to such provisions. Such provisions include, but are not\nlimited to Section 1.2(c), 1.2(e), 2.1 and 3.\n4.13.Distributions to Specified Employees. Notwithstanding any provision to the contrary, to the extent\nEmployee is considered a specified employee under Section 409A of the Code and would be entitled to a\npayment by reason of his “separation from service” (as defined under Section 409A of the Code) that is not\notherwise excluded under Section 409A of the Code under the exceptions for short-term deferrals, separation\npay arrangements, reimbursements, in-kind distributions, or an otherwise applicable exemption, the payment\nwill not be made to Employee until the earlier of the six month anniversary of Employee's date of termination\nor Employee's death.\n4.14 .Section 409A of the Code. It is the intention of the parties that this Agreement comply with and be\nadministered in accordance with Section 409A of the Code and the interpretive guidance thereunder, including\nthe exceptions for short-term deferrals, separation pay arrangements, reimbursements, and in-kind\ndistributions. The Agreement shall be construed and interpreted in accordance with such intent. To the extent\nsuch potential payments or benefits could become subject to such Section, the parties shall cooperate to\namend this Agreement with the goal of giving Employee the economic benefits described herein in a manner\nthat does not result in such tax being imposed. In the event that the Corporation does not so cooperate, the\nCorporation shall indemnify Employee for any interest and additional tax arising from the application of\nSection 409A of the Code, grossed-up for any other income tax incurred by Employee related to the\nindemnification (i.e ., indemnification of such additional income tax), assuming the highest marginal income tax\nrates apply to any taxable indemnification. Any indemnification payment shall be made within ninety (90) days\nof the date Employee makes payment of the interest and/or additional tax.\nEMPLOYEE HAS READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND EMPLOYEE\nUNDERSTANDS, AND AGREES TO, EACH OF SUCH PROVISIONS. EMPLOYEE UNDERSTANDS THAT\nTHIS AGREEMENT MAY AFFECT EMPLOYEE'S RIGHT TO ACCEPT EMPLOYMENT WITH OTHER\nCOMPANIES SUBSEQUENT TO EMPLOYEE'S EMPLOYMENT WITH THE CORPORATION.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement effective as of the date\nindicated below.\nEMPLOYEE\nMAXIMUS, Inc.\n/s/ Richard A. Montoni\nBy /s/ David R. Francis\nRichard A. Montoni\nDate January 9, 2018\nTitle General Counsel	Exhibit 10.2\nAMENDED AND RESTATED EMPLOYMENT, NON-COMPETE\nAND CONFIDENTIALITY AGREEMENT\n(amended and restated effective as oprril 1I 2018)\nTHIS AMENDED AND RESTATED EMPLOYMENT, NON-COMPETE AND CONFIDENTIALITY\nAGREEMENT ("Agreement"), is entered into between Richard A. Montoni (the "Employee") and MAXIMUS,\nInc., a Virginia corporation with its principal place of business in Reston, Virginia (the "Corporation") with\nreference to the following:\nWHEREAS, the parties entered into that certain Executive Employment, Non-Compete and\nConfidentiality Agreement effective April 21, 2006, which was subsequently amended on November 20, 2007,\nDecember 22, 2009, October 7, 2013, and March 4, 2014 (as amended, the "CurrentAgreement”); and\nWHEREAS, the parties believe Employee possesses the experience and capabilities to provide\nvaluable service on behalfofthe Corporation; and\nWHEREAS, the Corporation desires to employ Employee as SeniorAdvisorto the Chief Executive\nOfficer; and\nWHEREAS, Employee desires to be employed by the Corporation atthe salary, benefits and other\nterms and conditions specified herein; and\nWHEREAS, the parties desire to amend and restate the CurrentAgreement in its entirety, effective as\noprril 1, 2018 (the "Effective Date”), pursuantto the terms and conditions ofthis Agreement.\nNOW, THEREFORE, in consideration ofthese premises and for other good and valuable\nconsideration, the receipt and adequacy ofwhich are hereby acknowledged, the parties agree as follows:\n1. E mployment.\n1.1.Duties. The Corporation hereby employs Employee, and Employee hereby accepts such\nemployment, to serve as the SeniorAdvisorto the Chief Executive Officer. Employee hereby represents and\nwarrants that he is in good health and capable of performing the services required hereunder. Employee shall\nperform such services and duties as are delegated to Employee by the Corporation’s Board of Directors\n("Board”) or the Chief Executive Officer as the designee of the Board. During the term of this Agreement,\nEmployee shall be an employee ofthe Corporation and shall devote such time and attention to the discharge\nof his duties as may be necessary and appropriate to accomplish and complete such duties, it being the\nunderstanding of the parties that Employee’s services shall not require Employee’s full time and attention and\nwill average to be approximately 50% of full-time.\n \nEmployee shall be nominated by the Board for election as a director holding the position ofVice\nChairman and shall serve as a member ofthe Board subject to his being so elected by the Corporation's\nstockholders; provided that, during the term of this Agreement, Employee shall serve on the Board without\nadditional compensation.\n1.2.Compensation.\n(a)Salary. As ofthe Effective Date, the Corporation shall pay Employee an annual salary of\n$1,000,000 ("Salary").\n(b)Bonus. During the term of this Agreement, Employee will be eligible for discretionary bonus\nawards as determined in the sole discretion of the Board. Employee, the Chairman ofthe Board and\nthe Chief Executive Officer will meet not less than quarterly and establish performance objectives for\nEmployee and incentive bonus targets as appropriate. During the term of this Agreement, Employee\nwill not be eligible for awards underthe Corporation’s Management Bonus Plan and the 2017 Equity\nIncentive Plan (or successor plans) and will not participate in the Corporation’s lncome Continuity\nProgram. Any other compensation shall be in the sole discretion ofthe Compensation Committee of\nthe Corporations’ Board of Directors.\n(c)Eguity Awards. The Corporation agrees to proportionately adjust E mployee’s vested and\nunvested equity awards in the event the Corporation declares an extraordinary dividend during the\nterm hereof. Forthese purposes, an "extraordinary dividend” would be any distribution per share\nhaving a value in excess often percent (10%) of the average trading price ofthe Corporation’s\ncommon stock during the three-month period preceding such distribution. Notwithstanding the\nexpiration or mutual termination ofthis Agreement, any Restricted Stock Units or other equity awards\npreviously made to E mployee on or after October 1, 2013, shall vest according to their stated vesting\nschedules (or pursuant to the acceleration feature in connection with a Change in Control). For\navoidance ofdoubt, vesting and settlement ofsuch Restricted Stock Units or other equity awards shall\noccur on the dates set forth in the stated vesting schedules (or pursuantto the acceleration feature in\nconnection with a Change in Control) and without regard to whether E mployee is employed by the\nCorporation on any such dates.\n(d)Vacation, Insurance, Expenses, Etc. Employee shall receive such health, disability and life\ninsurance and other benefits and expense reimbursements, including but not limited to travel and\nentertainment, in a manner consistentwith the Corporation's past practices and as are provided to the\nCorporation’s senior executives. The Corporation will reimburse Employee forthe reasonable\nattorney’s fees incurred in connection with the review and negotiation of this Agreement.\n(e)lnsurance and Indemnification. The Corporation shall maintain Employee as an insured\nparty on all directors' and officers' insurance maintained by the Corporation forthe benefit of its\ndirectors and officers on at leastthe same basis as all other covered individuals and provide Employee\nwith at least the same corporate indemnification as its officers.\n1.3.Place of Performance. Employee may perform the advisory services underthis Agreementfrom\nsuch locations as are determined by Employee, except that Employee shall upon reasonable advance notice by the Board orthe Chief Executive Officer attend such meetings atthe Corporation’s headquarters in Reston, Virginia or at such other locations as may be deemed necessary and in the best interests of the Corporation. In furtherance of his performance ofservices underthis Agreement, Employee may establish or make arrangements for office space and administrative support in such locations as Employee shall determine. The Corporation shall either pay directly or reimburse Employee for the reasonable costs ofsuch office space and administrative support. 1.4.Term; Termination. The term ofthe employment agreement set forth in this Section 1 shall be for a\nperiod commencing atthe Effective Date and continuing until September 30, 2019 (the "Scheduled Term") provided thatthis Agreement shall terminate: (a)by mutual written consent ofthe parties;\n(b)upon Employee's death or inability, by reason of physical or mental impairment, to perform\nsubstantially all of Employee's duties as contemplated herein for a continuous period of 120 days or\nmore; or\n(c)by the Corporation for Cause (as defined below).\nUpon any termination ofemployment underthis Section 1.4, neither party shall have any obligation to\nthe other pursuant to this Section 1, but such termination shall have no effecton the obligations ofthe parties\nunder other provisions of this Agreement.\nUntil the Effective Date, the CurrentAgreement between the parties shall remain in full force and\neffect.\n1.5.Severance. The parties agree that in the event the Corporation terminates Employee's employment\nwithout Cause or Employee terminates the employmentfor Good Reason (as defined below) priorto the\nexpiration ofthe Scheduled Term, E mployee shall be entitled to the following:\n(a) benefits, atthe Corporation's expense, as provided under Section 1.2 forthe greater of\nthe remainder ofthe Scheduled Term ortwelve (12) months. To the extentthatthese payments are\nnot exempt from Section 409A ofthe Internal Revenue Code of 1986, as amended (the "Code”) under\nthe COBRA, reimbursement, in-kind benefit, orotherapplicable exceptions thereunder, such payments\nshall be made atthe time and in the amount required underthe documents governing each such\nbenefit\n(b) continued vesting of stock options and Restricted Stock Units as set forth in Section\n1.2(c); and\n(c) a lump sum, payable within 30 days following termination ofemployment, equal to the\nSalary forthe remainder ofthe Scheduled Term, which lump sum shall be considered a separate\npaymentfor purposes of Section 409A ofthe Code.\n1.6.Definitions. For purposes ofthe Agreement, "Cause”and "Good Reason”sha|l have the meanings\nprovided in the Corporation’s Income Continuity Program as it exists on the execution date ofthis Agreement.\n2.Non-Competition.\n2.1.P rohibited Activities.\n(a)Employee agrees that, during his employment with the Corporation and for a period ofone\n(1) year afterthe termination ofsuch employment, Employee will not engage in any Unethical Behavior\nwhich may adversely affect the Corporation. Forthe purpose ofthis Section 2.1, "U nethical Behavior"\nis defined as:\n(i)a ny attempt, successful or unsuccessful, by E mployee to divert any existing or\npending contracts or subcontracts from the Corporation to any other firm, whether or not\naffiliated with Employee;\n(ii)any attempt, successful or unsuccessful, by E mployee, to influence clients ofthe\nCorporation or organizations with which the Corporation has an existing or pending contractor\nproposal to refrain from doing business with the Corporation orto terminate existing business\nwith the Corporation;\n(iii)any attempt, successful or unsuccessful, by Employee to offer his services, or to\ninfluence any other employee ofthe Corporation to offer their services, to any firm to compete\nagainstthe Corporation; or\n(iv)any attempt, successful or unsuccessful, by E mployee to employ or offer\nemploymentto, or cause any other person to employ or offer employment to any individual who\nwas an employee ofthe Corporation at any time during Employee’s lastsix months of\nemployment with the Corporation.\n(b)Employee shall notify any new employer, partner, association or any other firm or\ncorporation in competition with the Corporation with whom E mployee shall become associated in any\ncapacity whatsoever of the provisions ofthis Section 2 and Employee agrees thatthe Corporation may\ngive such notice to such firm, corporation or other person.\n2.2.Business Opportunities; Conflicts of Interest; Other E mployment and Activities of E mployee.\n(a)Employee agrees promptly to advise the Corporation of, and provide the Corporation with an\nopportunity to pursue, all business opportunities ofwhich Employee becomes aware that reasonably\nrelate to the present business conducted by the Corporation.\n(b)Employee, in his capacity as an employee of the Corporation, shall not cause the\nCorporation to engage in any business with any member of Employee's immediate family or with any\nperson or business entity in which Employee or any member of Employee's immediate family has any\nownership interestorfinancial interest, unless and until Employee has firstfully disclosed such interest\nto and received written consent from the Board of Directors. As used herein, the term "immediate\nfamily" means Employee's spouse, natural or adopted children, parents or siblings and the term\n"financial interest" means any relationship with such person or business entity that may monetarily\nbenefit Employee or member of Employee's immediate family, including any lending relationship orthe\nguarantying ofany obligations ofsuch person or business entity by Employee or member of his\nimmediate family.\n(c)The parties hereto agree that Employee may, consistent with this Section 2.2, continue his\ninvolvement with the Northern Virginia Technology Counsel and such other trade associations, civic\norganizations and educational institutions in which he is involved as of the Effective Date and may\nengage in such other activities and business opportunities which do not interfere with Employee’s\nability to perform the duties described in Section 1.1.\n3.Confidentiality. Employee agrees thatthe Corporation's books, records, files and all other non-public\ninformation relating to the Corporation, its business, clients and employees are proprietary in nature and\ncontain trade secrets and shall be held in strictconfidence by Employee, and shall not, either during the term\nof this Agreement or after the termination hereof, be used by Employee or disclosed, directly or indirectly, to\nany third party, except to the extentsuch use or disclosure is in furtherance of the Corporation's business or\nrequired by any law, rule, regulation or other legal process. The trade secrets or other proprietary or\nconfidential information referred to in the prior sentence includes, without limitation, all proposals to clients or\npotential clients, contracts, clientor potential client lists, fee policies, financial information, administration or\nmarketing practices or procedures and all other information regarding the business ofthe Corporation and its\nclients not generally known to the public.\n4.Misce||aneous.\n4.1.Notices. All notices, requests, demands or other communications provided for in this Agreement\nshall be in writing and shall be delivered by hand, e-mail, sent prepaid by overnight delivery service or sent by\nthe United States mail, certified, postage prepaid, return receipt request, to the following:\nlfto the Corporation:\n \nMAXIMUS, Inc.\n1891 Metro Center Drive\nReston, Virginia 20190\nAttention: General Counsel\nlfto E mployee:\nRichard A. Montoni\nAny notice, request, demand or other communication delivered or sent in the foregoing manner shall be\ndeemed given or made (as the case may be) upon the earliest of (i) the date it is actually received, (ii) the\nbusiness-day afterthe day on which it is delivered by hand or sent by e-mail, (iii) the business day afterthe\nday on which it is properly delivered to Federal Express (or a comparable overnightdelivery service), or (iv)\nthe third business day afterthe date on which it is deposited in the United States mail. Either party may\nchange its address by notifying the other party ofthe new address in any manner permitted by this paragraph.\n4.2.Remedies. The parties agree and acknowledge that any violation by Employee of the terms hereof\nmay result in irreparable injury and damage to the Corporation or its clients, which may not adequately be\ncompensable in monetary damages, thatthe Corporation will have no adequate remedy at law therefor, and\nthat the Corporation may obtain such preliminary, temporary or permanent mandatory or restraining\ninjunctions, orders or decrees as may be necessary to protect it against, or on account of, any breach of the\nprovisions contained in this Agreement.\n4.3.No Obligation ofContinued Employment. Employee understands thatthis Agreementdoes not\ncreate an obligation on the part ofthe Corporation to continue Employee's employment with the Corporation\nafter the expiration or termination ofthis Agreement.\n4.4.Benefit; Assignment. This Agreement shall bind and inure to the benefit ofthe parties and their\nrespective personal representatives, heirs, successors and assigns, provided this Agreement may not be\nassigned by either party withoutthe consent of the other, except thatthe Corporation may assign this\nAgreement in connection with the merger, consolidation or sale ofall or substantially all of its business or\nassets.\n4.5.Entire Agreement. This Agreement supersedes all prior agreements, written or oral, with respectto\nthe subject matter of this Agreement, otherthan the CurrentAgreement, which shall remain in full force and\neffect until the Effective Date.\n4.6.Severability. In the event thatany one or more ofthe provisions contained herein shall be held to\nbe invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect\nany other provisions of this Agreement, and all other provisions shall remain in full force and effect. lfany of\nthe provisions ofthis Agreement is held to be excessively broad, itshall be reformed and construed by limiting\nand reducing itso as to be enforceable to the maximum extent permitted by law.\n4.7.Waivers. No delay or omission by the Corporation in exercising any right underthis Agreementwill\noperate as a waiver ofthat or any other right. A waiver or consent given by the Corporation on any occasion is\neffective only in that instance and will not be construed as a bar to or waiver of any right on any other\noccasion.\n \n4.8.Captions. The captions of the various sections and paragraphs ofthis Agreement have been\ninserted only forthe purpose ofconvenience; such captions are not a part ofthis Agreementand shall not be\ndeemed in any mannerto modify, explain, enlarge or restrict any ofthe provisions of this Agreement.\n4.9.Governing Law and | urisdiction. This Agreementshall in all events and forall purposes be\ngoverned by, and construed in accordance with, the laws of the Commonwealth ofVirginia. Any action or\nproceeding againstthe parties relating in any way to this Agreement must be brought and enforced in the\ncourts of Fairfax County, Virginia orthe Northern District ofVirginia, and the parties irrevocably submit to the\njurisdiction ofsuch courts in respect ofany such action or proceeding.\n4.10.Amendments. No changes to this Agreementshall be binding unless in writing and signed by both\nthe parties.\n4.11.Counterparts. This Agreement may be executed in several counterparts, each ofwhich shall be\ndeemed an original, and all such counterparts shall constitute one instrument.\n4.12.Survival. The provisions of this Agreement shall survive the expiration or earliertermination of this\nAgreement, to the extent necessary to give effect to such provisions. Such provisions include, butare not\nlimited to Section 1.2(c), 1.2(e), 2.1 and 3.\n \n4.13.Distributions to Specified Employees. Notwithstanding any provision to the contrary, to the extent\nEmployee is considered a specified employee under Section 409A of the Code and would be entitled to a\npayment by reason of his "separation from service” (as defined under Section 409A of the Code) that is not\notherwise excluded under Section 409A ofthe Code under the exceptions for short-term deferrals, separation\npay arrangements, reimbursements, in-kind distributions, or an otherwise applicable exemption, the payment\nwill not be made to Employee until the earlier ofthe six month anniversary of E mployee's date oftermination\nor Employee's death.\n4.14.Section 409A ofthe Code. It is the intention of the parties that this Agreement comply with and be\nadministered in accordance with Section 409A of the Code and the interpretive guidance thereunder, including\nthe exceptions for short-term deferrals, separation pay arrangements, reimbursements, and in-kind\ndistributions. The Agreementshall be construed and interpreted in accordance with such intent. To the extent\nsuch potential payments or benefits could become subjectto such Section, the parties shall cooperate to\namend this Agreement with the goal ofgiving Employee the economic benefits described herein in a manner\nthat does not result in such tax being imposed. In the event thatthe Corporation does not so cooperate, the\nCorporation shall indemnify Employee for any interest and additional tax arising from the application of\nSection 409A ofthe Code, grossed-up for any other income tax incurred by E mployee related to the\nindemnification (i.e., indemnification ofsuch additional income tax), assuming the highest marginal income tax\nrates apply to any taxable indemnification. Any indemnification payment shall be made within ninety (90) days\nof the date Employee makes payment of the interestand/or additional tax.\nEMPLOYEE HAS READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND EMPLOYEE\nUNDERSTANDS, AND AGREES TO, EACH OF SUCH PROVISIONS. EMPLOYEE UNDERSTANDS THAT\nTHIS AGREEMENT MAY AFFECT EMPLOYEE'S RIGHT TO ACCEPT EMPLOYMENT WITH OTHER\nCOMPANIES SUBSEQUENT TO EMPLOYEE'S EMPLOYMENT WITH THE CORPORATION.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement effective as ofthe date\nindicated below.\nEMPLOYEE MAXIMUS, Inc.\n/s/ Richard A. Montoni By /s/ David R. Francis\nRichard A. Montoni\nDate January 9, 2018 Title General Counsel	xhibit 10.2\nAMENDED AND RESTATED EMPLOYMENT, NON-COMPETE\nAND CONFIDENTIALITY AGREEMENT\n(amended and restated effective as of April 1, 2018)\nTHIS AMENDED AND RESTATED EMPLOYMENT, NON-COMPETE AND CONFIDENTIALITY\nAGREEMENT ("Agreement"), is entered into between Richard A. Montoni (the "Employee") and MAXIMUS,\nInc., a Virginia corporation with its principal place of business in Reston, Virginia (the "Corporation") with\nreference to the following:\nWHEREAS, the parties entered into that certain Executive mployment, Non-Compete and\nConfidentiality Agreement effective April 21, 2006, which was subsequently amended on November 20, 2007,\nDecember 22, 2009, October 7, 2013, and March 4, 2014 (as amended, the "Current Agreement"); and\nWHEREAS, the parties believe Employee possesses the experience and capabilities to provide\nvaluable service on behalf of the Corporation; and\nWHEREAS, the Corporation desires to employ Employee as Senior Advisor to the Chief xecutive\nOfficer; and\nWHEREAS, Employee desires to be employed by the Corporation at the salary, benefits and other\nterms and conditions specified herein; and\nWHEREAS, the parties desire to amend and restate the Current Agreement in its entirety, effective as\nof April 1, 2018 (the "Effective Date"), pursuant to the terms and conditions of this Agreement.\nNOW, THEREFORE, in consideration of these premises and for other good and valuable\nconsideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:\n1.\nEmployment.\n1.1. .Duties. The Corporation hereby employs Employee, and E mployee hereby accepts such\nemployment, to serve as the Senior Advisor to the Chief xecutive Officer. mployee hereby represents and\nwarrants that he is in good health and capable of performing the services required hereunder. :mployee shall\nperform such services and duties as are delegated to E mployee by the Corporation's Board of Directors\n("Board") or the Chief Executive Officer as the designee of the Board. During the term of this Agreement,\nEmployee shal be an employee of the Corporation and shall devote such time and attention to the discharge\nof his duties as may be necessary and appropriate to accomplish and complete such duties, it being the\nunderstanding of the parties that Employee's services shall not require mployee's full time and attention and\nwill average to be approximately 50% of full-time.\nEmployee shall be nominated by the Board for election as a director holding the position of Vice\nChairman and shall serve as a member of the Board subject to his being so elected by the Corporation's\nstockholders; provided that during the term of this Agreement, Employee shall serve on the Board without\nadditiona compensation.\n1.2. 2.Compensation\n(a)Salary. As of the Effective Date, the Corporation shall pay Employee an annual salary of\n$1,000,000 ("Salary").\n(b)Bonus. During the term of this Agreement, E mployee will be eligible for discretionary bonus\nawards\nas\ndetermined\nin\nthe\nsole\ndiscretion\nof\nthe\nBoard.\nmployee,\nthe\nChairman\nof\nthe\nBoard\nand\nthe Chief Executive Officer will meet not less than quarterly and establish performance objectives for\nEmployee and incentive bonus targets as appropriate. During the term of this Agreement, E mployee\nwill not be eligible for awards under the Corporation's Management Bonus Plan and the 2017 Equity\nIncentive Plan (or successor plans) and will not participate in the Corporation's Income Continuity\nProgram. Any other compensation shall be in the sole discretion of the Compensation Committee of\nthe Corporations' Board of Directors.\n(c)E quity Awards. The Corporation agrees to proportionately adjust E mployee's vested and\nunvested equity awards in the event the Corporation declares an extraordinary dividend during the\nterm hereof. or these purposes, an "extraordinary dividend" would be any distribution per share\nhaving a value in excess of ten percent (10%) of the average trading price of the Corporation's\ncommon stock during the three-month period preceding such distribution. Notwithstanding the\nexpiration or mutual termination of this Agreement, any Restricted Stock Units or other equity awards\npreviously made to mployee on or after October 1, 2013, shall vest according to their stated vesting\nschedules (or pursuant to the acceleration feature in connection with a Change in Control). For\navoidance of doubt, vesting and settlement of such Restricted tock Units or other equity awards shal\noccur on the dates set forth in the stated vesting schedules (or pursuant to the acceleration feature in\nconnection with a Change in Control) and without regard to whether E mployee is employed by the\nCorporation on any such dates.\nd)Vacation, Insurance, E xpenses, Etc. Employee shall receive such health, disability and life\ninsurance and other benefits and expense reimbursements, including but not limited to trave and\nentertainment, in a manner consistent with the Corporation's past practices and as are provided to the\nCorporation's senior executives. The Corporation will reimburse mployee for the reasonable\nattorney's fees incurred in connection with the review and negotiation of this Agreement.\n(e)Insurance and Indemnification. The Corporation shall maintain mployee as an insured\nparty on all directors' and officers' insurance maintained by the Corporation for the benefit of its\ndirectors and officers on at least the same basis as all other covered individuals and provide Employee\nwith at least the same corporate indemnification as its officers.\n1.3.F lace of Performance. E mployee may perform the advisory services under this Agreement from\nsuch locations as are determined by E mployee, except that E mployee shall upon reasonable advance notice\nby the Board or the Chief E xecutive Officer attend such meetings at the Corporation's headquarters in eston,\nVirginia or at such other locations as may be deemed necessary and in the best interests of the Corporation.\nIn furtherance of his performance of services under this Agreement, mployee may establish or make\narrangements for office space and administrative support in such locations as Employee shall determine. The\nCorporation shall either pay directly or reimburse Employee for the reasonable costs of such office space and\nadministrative support.\n.Term; Termination. The term of the employment agreement set forth in this Section 1 shall be for\na\nperiod commencing at the ffective Date and continuing until September 30, 2019 (the "Scheduled Term")\nprovided that this Agreement shall terminate:\n(a)by mutual written consent of the parties;\n(b)upon Employee's death or inability, by reason of physical or mental impairment, to perform\nsubstantially all of Employee's duties as contemplated herein for a continuous period of 120 days or\nmore; or\n(c)by the Corporation for Cause (as defined below).\nUpon any termination of employment under this Section 1.4, neither party shall have any obligation\nto\nthe other pursuant to this Section 1, but such termination shall have no effect on the obligations of the parties\nunder other provisions of this Agreement.\nUntil the Effective Date, the Current Agreement between the parties shal remain in ful force and\neffect.\n1.5.S everance. The parties agree that in the event the Corporation terminates E mployee's employment\nwithout Cause or Employee terminates the employment for Good Reason (as defined below) prior to the\nexpiration of the Scheduled Term, Employee shall be entitled to the following:\n(a) benefits, at the Corporation's expense, as provided under ection 1.2 for the greater of\nthe remainder of the Scheduled Term or twelve (12) months. To the extent that these payments are\nnot exempt from Section 409A of the Internal Revenue Code of 1986, as amended (the "Code") under\nthe COBRA, reimbursement, in-kind benefit, or other applicable exceptions thereunder, such payments\nshall be made at the time and in the amount required under the documents governing each such\nbenefit;\n(b)\ncontinued vesting of stock options and Restricted Stock Units as set forth in Section\n1.2(c); and\n(c) a lump sum, payable within 30 days following termination of employment, equal to the\nSalary for the remainder of the Scheduled Term, which lump sum shall be considered a separate\npayment for purposes of Section 409A of the Code.\n.Definitions. or purposes of the Agreement, "Cause" and "Good Reason" shall have the meanings\nprovided in the Corporation's Income Continuity P rogram as it exists on the execution date of this Agreement.\n2.Non-Competition.\n2.1. rohibited Activities.\n(a)E mployee agrees that, during his employment with the Corporation and for a period of one\n(1) year after the termination of such employment, E mployee will not engage in any Unethical Behavior\nwhich may adversely affect the Corporation. For the purpose of this Section 2.1, "Unethical Behavior"\nis defined as:\n(i)any attempt, successful or unsuccessful, by mployee to divert any existing or\npending contracts or subcontracts from the Corporation to any other firm, whether or not\naffiliated with E mployee;\n(ii) any attempt, successful or unsuccessful, by Employee, to influence clients of the\nCorporation or organizations with which the Corporation has an existing or pending contract or\nproposal to refrain from doing business with the Corporation or to terminate existing business\nwith the Corporation;\n(iii)any attempt, successful or unsuccessful, by Employee to offer his services, or to\ninfluence any other employee of the Corporation to offer their services, to any firm to compete\nagainst the Corporation; or\n(iv)any attempt, successful or unsuccessful, by E mployee to employ or offer\nemploymentt to, or cause any other person to employ or offer employment to any individual who\nwas an employee of the Corporation at any time during Employee's last six months of\nemployment with the Corporation.\n(b)E mployee shall notify any new employer, partner, association or any other firm or\ncorporation in competition with the Corporation with whom mployee shall become associated in any\ncapacity whatsoever of the provisions of this ection 2 and E mployee agrees that the Corporation may\ngive such notice to such firm, corporation or other person.\n2.Business Opportunities; Conflicts of Interest; Other E mployment and Activities of E mployee.\n(a)E mployee agrees promptly to advise the Corporation of, and provide the Corporation with an\nopportunity to pursue, all business opportunities of which Employee becomes aware that reasonably\nrelate to the present business conducted by the Corporation.\n(b)E mployee, in his capacity as an employee of the Corporation, shall not cause the\nCorporation to engage in any business with any member of Employee's immediate family or with any\nperson or business entity in which E mployee or any member of mployee's immediate family has any\nownership interest or financia interest, unless and until Employee has first fully disclosed such interest\nto and received written consent from the Board of Directors. As used herein, the term "immediate\nfamily" means Employee's spouse, natural or adopted children, parents or siblings and the term\n"financial interest" means any relationship with such person or business entity that may monetarily\nbenefit E mployee or member of Employee's immediate family, including any lending relationship or the\nguarantying of any obligations of such person or business entity by mployee or member of his\nimmediate family.\nThe parties hereto agree that E mployee may, consistent with this Section 2.2, continue his\ninvolvement with the Northern Virginia Technology Counse and such other trade associations, civic\norganizations and educational institutions in which he is involved as of the Effective Date and may\nengage in such other activities and business opportunities which do not interfere with E mployee's\nability to perform the duties described in Section 1.1.\nB.Confidentiality. E mployee agrees that the Corporation's books, records, files and all other non-public\ninformation relating to the Corporation, its business, clients and employees are proprietary in nature and\ncontain trade secrets and shall be held in strict confidence by Employee, and shall not, either during the term\nof\nthis\nAgreement\nor\nafter\nthe\ntermination\nhereof,\nbe\nused\nby\nEmployee\nor\ndisclosed,\ndirectly\nor\nindirectly,\nto\nany third party, except to the extent such use or disclosure is in furtherance of the Corporation's business or\nrequired by any law, rule, regulation or other legal process. The trade secrets or other proprietary or\nconfidential information referred to in the prior sentence includes, without limitation, all proposals to clients or\npotential clients, contracts, client or potential client lists, fee policies, financial information, administration or\nmarketing practices or procedures and all other information regarding the business of the Corporation and its\nclients not generally known to the public.\n4.Miscellaneous.\n1.Notices. All notices, requests, demands or other communications provided for in this Agreement\nshall be in writing and shall be delivered by hand, e-mail, sent prepaid by overnight delivery service or sent by\nthe United States mail, certified, postage prepaid, return receipt request, to the following:\nIf to the Corporation:\nMAXIMUS, Inc.\n1891 Metro Center Drive\nReston, Virginia 20190\nAttention: General Counsel\nif to Employee:\nRichard A. Montoni\nAny notice, request, demand or other communication delivered or sent in the foregoing manner shal be\ndeemed given or made (as the case may be) upon the earliest of (i) the date it is actually received, (ii) the\nbusiness-day after the day on which it is delivered by hand or sent by e-mail, (iii) the business day after the\nday on which it is properly delivered to Federal E xpress (or a comparable overnight delivery service), or (iv)\nthe third business day after the date on which it is deposited in the United States mail. E ither party may\nchange its address by notifying the other party of the new address in any manner permitted by this paragraph.\nRemedies. The parties agree and acknowledge that any violation by mployee of the terms hereof\nmay result in irreparable injury and damage to the Corporation or its clients, which may not adequately be\ncompensable in monetary damages, that the Corporation wil have no adequate remedy at law therefor, and\nthat the Corporation may obtain such preliminary, temporary or permanent mandatory or restraining\ninjunctions, orders or decrees as may be necessary to protect it against, or on account of, any breach of the\nprovisions contained in this Agreement.\n4.3.No Obligation of Continued E mployment E mployee understands that this Agreement does not\ncreate an obligation on the part of the Corporation to continue Employee's employment with the Corporation\nafter the expiration or termination of this Agreement.\n4.4. Benefit; Assignment. This Agreement shall bind and inure to the benefit of the parties and their\nrespective personal representatives, heirs, successors and assigns, provided this Agreement may not be\nassigned by either party without the consent of the other, except that the Corporation may assign this\nAgreement in connection with the merger, consolidation or sale of all or substantially all of its business or\nassets.\n4.5. ntire Agreement This Agreement supersedes all prior agreements, written or oral, with respect to\nthe subject matter of this Agreement, other than the Current Agreement, which shall remain in ful force and\neffect until the Effective Date.\n4.6.5 Severability. In the event that any one or more of the provisions contained herein shall be held to\nbe invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect\nany other provisions of this Agreement, and all other provisions shall remain in full force and effect. If any of\nthe provisions of this Agreement is held to be excessively broad, it shall be reformed and construed by limiting\nand reducing it SO as to be enforceable to the maximum extent permitted by law.\n.Waivers. No delay or omission by the Corporation in exercising any right under this Agreement will\noperate as a waiver of that or any other right. A waiver or consent given by the Corporation on any occasion is\neffective only in that instance and will not be construed as a bar to or waiver of any right on any other\noccasion.\n8.Captions. The captions of the various sections and paragraphs of this Agreement have been\ninserted only for the purpose of convenience; such captions are not a part of this Agreement and shall not be\ndeemed in any manner to modify, explain, enlarge or restrict any of the provisions of this Agreement.\nGoverning Law and urisdiction. This Agreement shall in all events and for all purposes be\ngoverned by, and construed in accordance with, the laws of the Commonwealth of Virginia. Any action\nor\nproceeding against the parties relating in any way to this Agreement must be brought and enforced in the\ncourts of Fairfax County, Virginia or the Northern District of Virginia, and the parties irrevocably submit to the\njurisdiction of such courts in respect of any such action or proceeding.\n.10.Amendments. No changes to this Agreement shall be binding unless in writing and signed by both\nthe parties.\n1.Counterparts. This Agreement may be executed in several counterparts, each of which shall be\ndeemed an original, and all such counterparts shall constitute one instrument.\n.12.Survival The provisions of this Agreement shall survive the expiration or earlier termination of this\nAgreement, to the extent necessary to give effect to such provisions. Such provisions include, but are not\nlimited to Section 1.2(c), 1.2(e), 2.1 and 3.\n13.Distributions to Specified Employees. Notwithstanding any provision to the contrary, to the extent\nEmployee is considered a specified employee under Section 409A of the Code and would be entitled to a\npayment\nby\nreason\nof\nhis\n"separation\nfrom\nservice"\n(as\ndefined\nunder\nSection\n409A\nof\nthe\nCode)\nthat\nis\nnot\notherwise excluded under Section 409A of the Code under the exceptions for short-term deferrals, separation\npay arrangements, reimbursements in-kind distributions, or an otherwise applicable exemption, the payment\nwill not be made to Employee until the earlier of the six month anniversary of E mployee's date of termination\nor E mployee's death.\n.14.Section 409A of the Code. it is the intention of the parties that this Agreement comply with and be\nadministered in accordance with Section 409A of the Code and the interpretive guidance thereunder, including\nthe exceptions for short-term deferrals, separation pay arrangements, reimbursements, and in-kind\ndistributions. The Agreement shall be construed and interpreted in accordance with such intent. To the extent\nsuch potential payments or benefits could become subject to such Section, the parties shall cooperate to\namend this Agreement with the goal of giving E mployee the economic benefits described herein in a manner\nthat does not result in such tax being imposed. In the event that the Corporation does not so cooperate, the\nCorporation shal indemnify Employee for any interest and additiona tax arising from the application of\nSection 409A of the Code, grossed-up for any other income tax incurred by E mployee related to the\nindemnification (i.e., indemnification of such additional income tax), assuming the highest marginal income tax\nrates apply to any taxable indemnification. Any indemnification payment shall be made within ninety (90) days\nof the date mployee makes payment of the interest and/or additional tax.\nEMPLOYEE HAS READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND EMPLOYEE\nUNDERSTANDS, AND AGREES TO, EACH OF SUCH PROVISIONS. EMPLOYEE UNDERSTANDS THAT\nTHIS AGREEMENT MAY AFFECT EMPLOYEE'S RIGHT TO ACCEPT EMPLOYMENT WITH OTHER\nCOMPANIES SUBSEQUENT TO EMPLOYEE'S EMPLOYMENT WITH THE CORPORATION.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement effective as of the date\nindicated below.\nEMPLOYEE\nMAXIMUS, Inc.\n/s/ Richard A. Montoni\nBy /s/ David R. Francis\nRichard A. Montoni\nDate J anuary 9, 2018\nTitle General Counsel	Exhibit 10.2\nAMENDED AND RESTATED EMPLOYMENT, NON-COMPETE\nAND CONFIDENTIALITY AGREEMENT\n(amended and restated effective as of April 1, 2018)\nTHIS AMENDED AND RESTATED EMPLOYMENT, NON-COMPETE AND CONFIDENTIALITY\nAGREEMENT ("Agreement"), is entered into between Richard A. Montoni (the "Employee") and MAXIMUS,\nInc., a Virginia corporation with its principal place of business in Reston, Virginia (the "Corporation") with\nreference to the following:\nWHEREAS, the parties entered into that certain Executive Employment, Non-Compete and\nConfidentiality Agreement effective April 21, 2006, which was subsequently amended on November 20, 2007,\nDecember 22, 2009, October 7, 2013, and March 4, 2014 (as amended, the “Current Agreement”); and\nWHEREAS, the parties believe Employee possesses the experience and capabilities to provide\nvaluable service on behalf of the Corporation; and\nWHEREAS, the Corporation desires to employ Employee as Senior Advisor to the Chief Executive\nOfficer; and\nWHEREAS, Employee desires to be employed by the Corporation at the salary, benefits and other\nterms and conditions specified herein; and\nWHEREAS, the parties desire to amend and restate the Current Agreement in its entirety, effective as\nof April 1, 2018 (the “Effective Date”), pursuant to the terms and conditions of this Agreement.\nNOW, THEREFORE, in consideration of these premises and for other good and valuable\nconsideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:\n1.\nEmployment.\n1.1.Duties. The Corporation hereby employs Employee, and Employee hereby accepts such\nemployment, to serve as the Senior Advisor to the Chief Executive Officer. Employee hereby represents and\nwarrants that he is in good health and capable of performing the services required hereunder. Employee shall\nperform such services and duties as are delegated to Employee by the Corporation’s Board of Directors\n(“Board”) or the Chief Executive Officer as the designee of the Board. During the term of this Agreement,\nEmployee shall be an employee of the Corporation and shall devote such time and attention to the discharge\nof his duties as may be necessary and appropriate to accomplish and complete such duties, it being the\nunderstanding of the parties that Employee’s services shall not require Employee’s full time and attention and\nwill average to be approximately 50% of full-time.\nEmployee shall be nominated by the Board for election as a director holding the position of Vice\nChairman and shall serve as a member of the Board subject to his being so elected by the Corporation's\nstockholders; provided that, during the term of this Agreement, Employee shall serve on the Board without\nadditional compensation.\n1.2.Compensation.\n(a)Salary. As of the Effective Date, the Corporation shall pay Employee an annual salary of\n$1,000,000 ("Salary").\n(b)Bonus. During the term of this Agreement, Employee will be eligible for discretionary bonus\nawards as determined in the sole discretion of the Board. Employee, the Chairman of the Board and\nthe Chief Executive Officer will meet not less than quarterly and establish performance objectives for\nEmployee and incentive bonus targets as appropriate. During the term of this Agreement, Employee\nwill not be eligible for awards under the Corporation’s Management Bonus Plan and the 2017 Equity\nIncentive Plan (or successor plans) and will not participate in the Corporation’s Income Continuity\nProgram. Any other compensation shall be in the sole discretion of the Compensation Committee of\nthe Corporations’ Board of Directors.\n(c)Equity Awards. The Corporation agrees to proportionately adjust Employee’s vested and\nunvested equity awards in the event the Corporation declares an extraordinary dividend during the\nterm hereof. For these purposes, an “extraordinary dividend” would be any distribution per share\nhaving a value in excess of ten percent (10%) of the average trading price of the Corporation’s\ncommon stock during the three-month period preceding such distribution. Notwithstanding the\nexpiration or mutual termination of this Agreement, any Restricted Stock Units or other equity awards\npreviously made to Employee on or after October 1, 2013, shall vest according to their stated vesting\nschedules (or pursuant to the acceleration feature in connection with a Change in Control). For\navoidance of doubt, vesting and settlement of such Restricted Stock Units or other equity awards shall\noccur on the dates set forth in the stated vesting schedules (or pursuant to the acceleration feature in\nconnection with a Change in Control) and without regard to whether Employee is employed by the\nCorporation on any such dates.\n(d)Vacation, Insurance, Expenses, Etc. Employee shall receive such health, disability and life\ninsurance and other benefits and expense reimbursements, including but not limited to travel and\nentertainment, in a manner consistent with the Corporation's past practices and as are provided to the\nCorporation’s senior executives. The Corporation will reimburse Employee for the reasonable\nattorney’s fees incurred in connection with the review and negotiation of this Agreement.\n(e)Insurance and Indemnification. The Corporation shall maintain Employee as an insured\nparty on all directors' and officers' insurance maintained by the Corporation for the benefit of its\ndirectors and officers on at least the same basis as all other covered individuals and provide Employee\nwith at least the same corporate indemnification as its officers.\n1.3.Place of Performance. Employee may perform the advisory services under this Agreement from\nsuch locations as are determined by Employee, except that Employee shall upon reasonable advance notice\nby the Board or the Chief Executive Officer attend such meetings at the Corporation’s headquarters in Reston,\nVirginia or at such other locations as may be deemed necessary and in the best interests of the Corporation.\nIn furtherance of his performance of services under this Agreement, Employee may establish or make\narrangements for office space and administrative support in such locations as Employee shall determine. The\nCorporation shall either pay directly or reimburse Employee for the reasonable costs of such office space and\nadministrative support.\n1.4.Term; Termination. The term of the employment agreement set forth in this Section 1 shall be for a\nperiod commencing at the Effective Date and continuing until September 30, 2019 (the "Scheduled Term")\nprovided that this Agreement shall terminate:\n(a)by mutual written consent of the parties;\n(b)upon Employee's death or inability, by reason of physical or mental impairment, to perform\nsubstantially all of Employee's duties as contemplated herein for a continuous period of 120 days or\nmore; or\n(c)by the Corporation for Cause (as defined below).\nUpon any termination of employment under this Section 1.4, neither party shall have any obligation to\nthe other pursuant to this Section 1, but such termination shall have no effect on the obligations of the parties\nunder other provisions of this Agreement.\nUntil the Effective Date, the Current Agreement between the parties shall remain in full force and\neffect.\n1.5.Severance. The parties agree that in the event the Corporation terminates Employee's employment\nwithout Cause or Employee terminates the employment for Good Reason (as defined below) prior to the\nexpiration of the Scheduled Term, Employee shall be entitled to the following:\n(a) benefits, at the Corporation's expense, as provided under Section 1.2 for the greater of\nthe remainder of the Scheduled Term or twelve (12) months. To the extent that these payments are\nnot exempt from Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) under\nthe COBRA, reimbursement, in-kind benefit, or other applicable exceptions thereunder, such payments\nshall be made at the time and in the amount required under the documents governing each such\nbenefit;\n(b) continued vesting of stock options and Restricted Stock Units as set forth in Section\n1.2(c); and\n(c) a lump sum, payable within 30 days following termination of employment, equal to the\nSalary for the remainder of the Scheduled Term, which lump sum shall be considered a separate\npayment for purposes of Section 409A of the Code.\n1.6.Definitions. For purposes of the Agreement, “Cause” and “Good Reason” shall have the meanings\nprovided in the Corporation’s Income Continuity Program as it exists on the execution date of this Agreement.\n2.Non-Competition.\n2.1.Prohibited Activities.\n(a)Employee agrees that, during his employment with the Corporation and for a period of one\n(1) year after the termination of such employment, Employee will not engage in any Unethical Behavior\nwhich may adversely affect the Corporation. For the purpose of this Section 2.1, "Unethical Behavior"\nis defined as:\n(i)any attempt, successful or unsuccessful, by Employee to divert any existing or\npending contracts or subcontracts from the Corporation to any other firm, whether or not\naffiliated with Employee;\n(ii)any attempt, successful or unsuccessful, by Employee, to influence clients of the\nCorporation or organizations with which the Corporation has an existing or pending contract or\nproposal to refrain from doing business with the Corporation or to terminate existing business\nwith the Corporation;\n(iii)any attempt, successful or unsuccessful, by Employee to offer his services, or to\ninfluence any other employee of the Corporation to offer their services, to any firm to compete\nagainst the Corporation; or\n(iv)any attempt, successful or unsuccessful, by Employee to employ or offer\nemployment to, or cause any other person to employ or offer employment to any individual who\nwas an employee of the Corporation at any time during Employee’s last six months of\nemployment with the Corporation.\n(b)Employee shall notify any new employer, partner, association or any other firm or\ncorporation in competition with the Corporation with whom Employee shall become associated in any\ncapacity whatsoever of the provisions of this Section 2 and Employee agrees that the Corporation may\ngive such notice to such firm, corporation or other person.\n2.2.Business Opportunities; Conflicts of Interest; Other Employment and Activities of Employee.\n(a)Employee agrees promptly to advise the Corporation of, and provide the Corporation with an\nopportunity to pursue, all business opportunities of which Employee becomes aware that reasonably\nrelate to the present business conducted by the Corporation.\n(b)Employee, in his capacity as an employee of the Corporation, shall not cause the\nCorporation to engage in any business with any member of Employee's immediate family or with any\nperson or business entity in which Employee or any member of Employee's immediate family has any\nownership interest or financial interest, unless and until Employee has first fully disclosed such interest\nto and received written consent from the Board of Directors. As used herein, the term "immediate\nfamily" means Employee's spouse, natural or adopted children, parents or siblings and the term\n"financial interest" means any relationship with such person or business entity that may monetarily\nbenefit Employee or member of Employee's immediate family, including any lending relationship or the\nguarantying of any obligations of such person or business entity by Employee or member of his\nimmediate family.\n(c)The parties hereto agree that Employee may, consistent with this Section 2.2, continue his\ninvolvement with the Northern Virginia Technology Counsel and such other trade associations, civic\norganizations and educational institutions in which he is involved as of the Effective Date and may\nengage in such other activities and business opportunities which do not interfere with Employee’s\nability to perform the duties described in Section 1.1 .\n3.Confidentiality. Employee agrees that the Corporation's books, records, files and all other non-public\ninformation relating to the Corporation, its business, clients and employees are proprietary in nature and\ncontain trade secrets and shall be held in strict confidence by Employee, and shall not, either during the term\nof this Agreement or after the termination hereof, be used by Employee or disclosed, directly or indirectly, to\nany third party, except to the extent such use or disclosure is in furtherance of the Corporation's business or\nrequired by any law, rule, regulation or other legal process. The trade secrets or other proprietary or\nconfidential information referred to in the prior sentence includes, without limitation, all proposals to clients or\npotential clients, contracts, client or potential client lists, fee policies, financial information, administration or\nmarketing practices or procedures and all other information regarding the business of the Corporation and its\nclients not generally known to the public.\n4.Miscellaneous.\n4.1.Notices. All notices, requests, demands or other communications provided for in this Agreement\nshall be in writing and shall be delivered by hand, e-mail, sent prepaid by overnight delivery service or sent by\nthe United States mail, certified, postage prepaid, return receipt request, to the following:\nIf to the Corporation:\nMAXIMUS, Inc.\n1891 Metro Center Drive\nReston, Virginia 20190\nAttention: General Counsel\nIf to Employee:\nRichard A. Montoni\nAny notice, request, demand or other communication delivered or sent in the foregoing manner shall be\ndeemed given or made (as the case may be) upon the earliest of (i) the date it is actually received, (ii) the\nbusiness-day after the day on which it is delivered by hand or sent by e-mail, (iii) the business day after the\nday on which it is properly delivered to Federal Express (or a comparable overnight delivery service), or (iv)\nthe third business day after the date on which it is deposited in the United States mail. Either party may\nchange its address by notifying the other party of the new address in any manner permitted by this paragraph.\n4.2.Remedies. The parties agree and acknowledge that any violation by Employee of the terms hereof\nmay result in irreparable injury and damage to the Corporation or its clients, which may not adequately be\ncompensable in monetary damages, that the Corporation will have no adequate remedy at law therefor, and\nthat the Corporation may obtain such preliminary, temporary or permanent mandatory or restraining\ninjunctions, orders or decrees as may be necessary to protect it against, or on account of, any breach of the\nprovisions contained in this Agreement.\n4.3.No Obligation of Continued Employment. Employee understands that this Agreement does not\ncreate an obligation on the part of the Corporation to continue Employee's employment with the Corporation\nafter the expiration or termination of this Agreement.\n4.4.Benefit; Assignment. This Agreement shall bind and inure to the benefit of the parties and their\nrespective personal representatives, heirs, successors and assigns, provided this Agreement may not be\nassigned by either party without the consent of the other, except that the Corporation may assign this\nAgreement in connection with the merger, consolidation or sale of all or substantially all of its business or\nassets.\n4.5.Entire Agreement. This Agreement supersedes all prior agreements, written or oral, with respect to\nthe subject matter of this Agreement, other than the Current Agreement, which shall remain in full force and\neffect until the Effective Date.\n4.6.Severability. In the event that any one or more of the provisions contained herein shall be held to\nbe invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect\nany other provisions of this Agreement, and all other provisions shall remain in full force and effect. If any of\nthe provisions of this Agreement is held to be excessively broad, it shall be reformed and construed by limiting\nand reducing it so as to be enforceable to the maximum extent permitted by law.\n4.7.Waivers. No delay or omission by the Corporation in exercising any right under this Agreement will\noperate as a waiver of that or any other right. A waiver or consent given by the Corporation on any occasion is\neffective only in that instance and will not be construed as a bar to or waiver of any right on any other\noccasion.\n4.8.Captions. The captions of the various sections and paragraphs of this Agreement have been\ninserted only for the purpose of convenience; such captions are not a part of this Agreement and shall not be\ndeemed in any manner to modify, explain, enlarge or restrict any of the provisions of this Agreement.\n4.9.Governing Law and Jurisdiction. This Agreement shall in all events and for all purposes be\ngoverned by, and construed in accordance with, the laws of the Commonwealth of Virginia. Any action or\nproceeding against the parties relating in any way to this Agreement must be brought and enforced in the\ncourts of Fairfax County, Virginia or the Northern District of Virginia, and the parties irrevocably submit to the\njurisdiction of such courts in respect of any such action or proceeding.\n4.10.Amendments. No changes to this Agreement shall be binding unless in writing and signed by both\nthe parties.\n4.11 .Counterparts. This Agreement may be executed in several counterparts, each of which shall be\ndeemed an original, and all such counterparts shall constitute one instrument.\n4.12.Survival. The provisions of this Agreement shall survive the expiration or earlier termination of this\nAgreement, to the extent necessary to give effect to such provisions. Such provisions include, but are not\nlimited to Section 1.2(c), 1.2(e), 2.1 and 3.\n4.13.Distributions to Specified Employees. Notwithstanding any provision to the contrary, to the extent\nEmployee is considered a specified employee under Section 409A of the Code and would be entitled to a\npayment by reason of his “separation from service” (as defined under Section 409A of the Code) that is not\notherwise excluded under Section 409A of the Code under the exceptions for short-term deferrals, separation\npay arrangements, reimbursements, in-kind distributions, or an otherwise applicable exemption, the payment\nwill not be made to Employee until the earlier of the six month anniversary of Employee's date of termination\nor Employee's death.\n4.14 .Section 409A of the Code. It is the intention of the parties that this Agreement comply with and be\nadministered in accordance with Section 409A of the Code and the interpretive guidance thereunder, including\nthe exceptions for short-term deferrals, separation pay arrangements, reimbursements, and in-kind\ndistributions. The Agreement shall be construed and interpreted in accordance with such intent. To the extent\nsuch potential payments or benefits could become subject to such Section, the parties shall cooperate to\namend this Agreement with the goal of giving Employee the economic benefits described herein in a manner\nthat does not result in such tax being imposed. In the event that the Corporation does not so cooperate, the\nCorporation shall indemnify Employee for any interest and additional tax arising from the application of\nSection 409A of the Code, grossed-up for any other income tax incurred by Employee related to the\nindemnification (i.e ., indemnification of such additional income tax), assuming the highest marginal income tax\nrates apply to any taxable indemnification. Any indemnification payment shall be made within ninety (90) days\nof the date Employee makes payment of the interest and/or additional tax.\nEMPLOYEE HAS READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND EMPLOYEE\nUNDERSTANDS, AND AGREES TO, EACH OF SUCH PROVISIONS. EMPLOYEE UNDERSTANDS THAT\nTHIS AGREEMENT MAY AFFECT EMPLOYEE'S RIGHT TO ACCEPT EMPLOYMENT WITH OTHER\nCOMPANIES SUBSEQUENT TO EMPLOYEE'S EMPLOYMENT WITH THE CORPORATION.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement effective as of the date\nindicated below.\nEMPLOYEE\nMAXIMUS, Inc.\n/s/ Richard A. Montoni\nBy /s/ David R. Francis\nRichard A. Montoni\nDate January 9, 2018\nTitle General Counsel
a690a18d80e339c882febf1b56eda53d.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 14 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nAdams, Harkness & Hill, Inc\n60 State Street\nBoston, MA 62109\n(617) 371-3700\nConfidential\nMay 8, 2002\nAllan Routh\nPresident and CEO\nSunrich Foods\n3824 Southwest 93rd Street\nHope, MN 56046\nLadies and Gentlemen:\nAdams, Harkness & Hill, Inc. (“AH&H”), on behalf of and as exclusive, retained advisor to Opta Food Ingredients, Inc., a Delaware\ncorporation (the “Company”), and the Company are prepared to furnish you with certain publicly available and material non-public information\ndescribing the Company in connection with your consideration of a possible negotiated transaction with the Company. As a condition to our\ndisclosure of the identity of the Company and furnishing such publicly available and material non-public information you agree, on behalf of your\ndirectors, officers, employees, affiliates, advisors and agents (your “Representatives”) to the terms of this Agreement:\n1. Definition of Confidential Information. In the context of this Agreement, Confidential Information shall mean (i) the identity of the\nCompany; (ii) any information, written or oral, whether prepared by AH&H, the Company, its advisors, agents or otherwise that is to be, or has been,\nfurnished by or on behalf of the Company in accordance with the provisions of this letter; and (iii) your consideration of a possible negotiated\ntransaction with the Company.\n2. Use of Confidential Information. You hereby agree that the Confidential Information will be used solely for the purpose of evaluating a\npossible negotiated transaction between you and the Company and not in any way directly or indirectly detrimental to the Company. Unless\notherwise required by law, you and your Representatives will not disclose the Confidential Information, without the prior written consent of the\nCompany, to any person (including any corporation, company, partnership, or individual) and will limit the dissemination of the Confidential\nInformation to your Representatives who need to know the information for the sole purpose of evaluating a possible negotiated transaction with the\nCompany. You shall be fully liable for any breach of this Agreement by any of your Representatives. You further agree to treat the Confidential\nInformation in the same manner as you treat confidential information of a similar nature. You also agree that you will inform each of your\nRepresentatives who will receive Confidential Information of your obligations under this letter. This paragraph shall be broadly interpreted to\nprohibit, without limitation, any discussions with potential co-bidders or other transaction partners without the prior written consent of the Company.\n3. No Contacts with the Company. You agree that, at the conclusion of your review of the Confidential Information, or within three\nbusiness days of the Company’s request, you and your Representatives shall redeliver to AH&H all copies of the Confidential Information in any\nform whatsoever (including without limitation any reports, memoranda or other material prepared by you or your Representatives). Unless consented\nto in advance in writing by the Chief Executive Officer of the Company, for a period of one year after the date hereof, you shall not, and you shall\nnot permit any Representative of yours to, directly or indirectly, solicit any Company personnel with whom you or any Representative of yours has\ncontact in connection with discussions or negotiations regarding a possible negotiated transaction to leave the employ of the Company or to accept\nemployment by you or any affiliate of yours or have any discussions with any such person regarding such cessation of employment or re-\nemployment.\n1\n4. Agreement to Standstill. You agree that, for a period of eighteen months from the date of this agreement (the “Standstill Period”), unless\nspecifically invited in writing by us or the Company, neither you nor any of your Representatives, acting on your behalf, will in any manner, directly\nor indirectly, (a) other than through a confidential offer directed to the Company, effect or seek offer or propose to effect, or cause or participate in or\nin any way assist any other person to effect or seek, offer or propose to effect or participate in, (i) any acquisition of any securities (or beneficial\nownership thereof) or assets of the Company; (ii) any tender or exchange offer, merger or other business combination involving the Company; (iii)\nany recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company; or (iv) any “solicitation”\nof “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the\nother party; (b) from, join or in any way participate in a “group” (as defined under the Securities Exchange Act of 1934, as amended) with respect to\nthe Company; (c) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the\nCompany; (d) take any action that might force the Company to make a public announcement regarding any of the types of matters set forth in (a)\nabove; or (e) enter into any discussion or arrangements with any third party with respect to any of the foregoing. Notwithstanding the foregoing, if\nduring the Standstill Period, any third party shall publicly announce and thereafter commence a tender or exchange offer which, if consummated,\nwould give such third party ownership of 50% or more of the outstanding shares of the Company (a “Third Party Offer”), you shall be entitled to\ncommence a tender offer (a “Competing Offer”) for at least the same number of shares (provided that the Competing Offer provides for a second-\nstep merger yielding a blended purchase price per share which is at least equal to the purchase price per share offered by the third party in the Third\nParty Offer and in any subsequent second-step merger or acquisition transaction if one is proposed by such third party) and to purchase shares\npursuant to such Competing Offer.\n5. Subpoena or Other Order. In the event that you or your Representatives receive a request to disclose all or any part of the Confidential\nInformation under the terms of a valid and effective subpoena or other order issued by a court having jurisdiction or by a governmental body, or, in\naccordance with the written legal opinion of your counsel, by any federal or state law or regulation, you agree that you will promptly notify AH&H\nand the Company of the existence, terms and circumstances surrounding such a request, so that the Company may seek an appropriate protective\norder or other remedy and/or waive your compliance with the provisions of this Agreement. If disclosure of such information is required in the\nwritten opinion of your counsel, you agree that you will exercise reasonable efforts to obtain an order or other reliable assurance that confidential\ntreatment will be accorded to such of the disclosed information which we or the Company so designates.\n6. No Representation as to Accuracy. You understand that neither AH&H, the Company nor any of their respective agents or employees\nhas made or makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information. Neither\nAH&H nor the Company shall have any liability to anyone resulting from the use of any Confidential Information (or any errors therein or omissions\ntherefrom), except as provided in any definitive acquisition or other agreement between the Company and you.\n7. No Binding Agreement for Transaction Herein. You agree that unless and until a definitive agreement between the Company and you\nwith respect to any transaction involving the Company has been executed and delivered, neither the Company nor you will be under any legal\nobligation of any kind whatsoever with respect to such a transaction by virtue of this letter or any other written or oral expression with respect to\nsuch a transaction by any of the directors, officers, employees, representatives, advisors, or agents of the Company except, in the case of this\nAgreement, for the matters specifically agreed to herein.\n8. Remedies. You agree that money damages would not be a sufficient remedy for any breach of the agreements contained in this letter by\nyou or your Representatives, and that the Company shall be entitled to specific performance and injunctive relief as remedies for any such breach or\nthreatened breach. Such remedies shall not be considered to be the exclusive remedies for any such breach or threatened breach, but shall be in\naddition to all other remedies available at law or equity to the Company.\n2\n9. Entire Agreement. This Agreement constitutes the entire understanding of the parties hereto with respect to the subject matter hereof and\nsupersedes all prior agreements and understandings with respect thereto.\n10. Jurisdiction. This Confidentiality Agreement is being executed by AH&H in the Commonwealth of Massachusetts and it is understood\nthat AH&H will perform its services hereunder in that jurisdiction. Accordingly, this Confidentiality Agreement and all questions relating to its\nvalidity, interpretation, performance, and enforcement shall be governed by and construed, interpreted, and enforced in accordance with the internal\nlaws, and not the law of conflicts of law, of the Commonwealth of Massachusetts. To the extent that a court of competent jurisdiction determines that\nany provision or provisions contained herein are not enforceable, such provision or provisions shall be limited to the maximum extent enforceable\nunder applicable law.\n11. Termination. The provisions relating to confidentiality contained in this letter shall terminate upon the earlier of (a) five years from the\ndate hereof, (b) the execution of a separate agreement addressing the confidential use of non-public information specifically superceding this\nAgreement, or (c) if you enter into a negotiated transaction with the Company, as of the date such transaction is consummated.\nIf you agree with and accept the foregoing, please sign and return one copy of this Agreement, which will constitute our agreement with respect to\nthe subject matter of this letter.\nVery truly yours,\nADAMS, HARKNESS & HILL, INC.\nBy: /S/ DAVID THIBODEAU\nDavid Thibodeau\nPrincipal\nACCEPTED AND AGREED:\nSUNRICH FOODS\nBy: /S/ ALLAN ROUTH\nName: Allan Routh\nTitle President/CEO\nDate: May 8, 2002\n3	EX-99.(D)(3) 14 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nAdams, Harkness & Hill, Inc\n60 State Street\nBoston, MA 62109\n(617) 371-3700\nConfidential\nMay 8, 2002\nAllan Routh\nPresident and CEO\nSunrich Foods\n3824 Southwest 93" Street\nHope, MN 56046\nLadies and Gentlemen:\nAdams, Harkness & Hill, Inc. (“AH&H?”), on behalf of and as exclusive, retained advisor to Opta Food Ingredients, Inc., a Delaware\ncorporation (the “Company”), and the Company are prepared to furnish you with certain publicly available and material non-public information\ndescribing the Company in connection with your consideration of a possible negotiated transaction with the Company. As a condition to our\ndisclosure of the identity of the Company and furnishing such publicly available and material non-public information you agree, on behalf of your\ndirectors, officers, employees, affiliates, advisors and agents (your “Representatives™) to the terms of this Agreement:\n1. Definition of Confidential Information. In the context of this Agreement, Confidential Information shall mean (i) the identity of the\nCompany; (ii) any information, written or oral, whether prepared by AH&H, the Company, its advisors, agents or otherwise that is to be, or has been,\nfurnished by or on behalf of the Company in accordance with the provisions of this letter; and (iii) your consideration of a possible negotiated\ntransaction with the Company.\n2. Use of Confidential Information. You hereby agree that the Confidential Information will be used solely for the purpose of evaluating a\npossible negotiated transaction between you and the Company and not in any way directly or indirectly detrimental to the Company. Unless\notherwise required by law, you and your Representatives will not disclose the Confidential Information, without the prior written consent of the\nCompany, to any person (including any corporation, company, partnership, or individual) and will limit the dissemination of the Confidential\nInformation to your Representatives who need to know the information for the sole purpose of evaluating a possible negotiated transaction with the\nCompany. You shall be fully liable for any breach of this Agreement by any of your Representatives. You further agree to treat the Confidential\nInformation in the same manner as you treat confidential information of a similar nature. You also agree that you will inform each of your\nRepresentatives who will receive Confidential Information of your obligations under this letter. This paragraph shall be broadly interpreted to\nprohibit, without limitation, any discussions with potential co-bidders or other transaction partners without the prior written consent of the Company.\n3. No Contacts with the Company. You agree that, at the conclusion of your review of the Confidential Information, or within three\nbusiness days of the Company’s request, you and your Representatives shall redeliver to AH&H all copies of the Confidential Information in any\nform whatsoever (including without limitation any reports, memoranda or other material prepared by you or your Representatives). Unless consented\nto in advance in writing by the Chief Executive Officer of the Company, for a period of one year after the date hereof, you shall not, and you shall\nnot permit any Representative of yours to, directly or indirectly, solicit any Company personnel with whom you or any Representative of yours has\ncontact in connection with discussions or negotiations regarding a possible negotiated transaction to leave the employ of the Company or to accept\nemployment by you or any affiliate of yours or have any discussions with any such person regarding such cessation of employment or re-\nemployment.\n4. Agreement to Standstill. You agree that, for a period of eighteen months from the date of this agreement (the “Standstill Period”), unless\nspecifically invited in writing by us or the Company, neither you nor any of your Representatives, acting on your behalf, will in any manner, directly\nor indirectly, (a) other than through a confidential offer directed to the Company, effect or seek offer or propose to effect, or cause or participate in or\nin any way assist any other person to effect or seek, offer or propose to effect or participate in, (i) any acquisition of any securities (or beneficial\nownership thereof) or assets of the Company; (ii) any tender or exchange offer, merger or other business combination involving the Company; (iii)\nany recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company; or (iv) any “solicitation”\nof “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the\nother party; (b) from, join or in any way participate in a “group” (as defined under the Securities Exchange Act of 1934, as amended) with respect to\nthe Company; (c) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the\nCompany; (d) take any action that might force the Company to make a public announcement regarding any of the types of matters set forth in (a)\nabove; or (e) enter into any discussion or arrangements with any third party with respect to any of the foregoing. Notwithstanding the foregoing, if\nduring the Standstill Period, any third party shall publicly announce and thereafter commence a tender or exchange offer which, if consummated,\nwould give such third party ownership of 50% or more of the outstanding shares of the Company (a “Third Party Offer”), you shall be entitled to\ncommence a tender offer (a “Competing Offer”) for at least the same number of shares (provided that the Competing Offer provides for a second-\nstep merger yielding a blended purchase price per share which is at least equal to the purchase price per share offered by the third party in the Third\nParty Offer and in any subsequent second-step merger or acquisition transaction if one is proposed by such third party) and to purchase shares\npursuant to such Competing Offer.\n5. Subpoena or Other Order. In the event that you or your Representatives receive a request to disclose all or any part of the Confidential\nInformation under the terms of a valid and effective subpoena or other order issued by a court having jurisdiction or by a governmental body, or, in\naccordance with the written legal opinion of your counsel, by any federal or state law or regulation, you agree that you will promptly notify AH&H\nand the Company of the existence, terms and circumstances surrounding such a request, so that the Company may seek an appropriate protective\norder or other remedy and/or waive your compliance with the provisions of this Agreement. If disclosure of such information is required in the\nwritten opinion of your counsel, you agree that you will exercise reasonable efforts to obtain an order or other reliable assurance that confidential\ntreatment will be accorded to such of the disclosed information which we or the Company so designates.\n6. No Representation as to Accuracy. You understand that neither AH&H, the Company nor any of their respective agents or employees\nhas made or makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information. Neither\nAH&H nor the Company shall have any liability to anyone resulting from the use of any Confidential Information (or any errors therein or omissions\ntherefrom), except as provided in any definitive acquisition or other agreement between the Company and you.\n7. No Binding Agreement for Transaction Herein. You agree that unless and until a definitive agreement between the Company and you\nwith respect to any transaction involving the Company has been executed and delivered, neither the Company nor you will be under any legal\nobligation of any kind whatsoever with respect to such a transaction by virtue of this letter or any other written or oral expression with respect to\nsuch a transaction by any of the directors, officers, employees, representatives, advisors, or agents of the Company except, in the case of this\nAgreement, for the matters specifically agreed to herein.\n8. Remedies. You agree that money damages would not be a sufficient remedy for any breach of the agreements contained in this letter by\nyou or your Representatives, and that the Company shall be entitled to specific performance and injunctive relief as remedies for any such breach or\nthreatened breach. Such remedies shall not be considered to be the exclusive remedies for any such breach or threatened breach, but shall be in\naddition to all other remedies available at law or equity to the Company.\n9. Entire Agreement. This Agreement constitutes the entire understanding of the parties hereto with respect to the subject matter hereof and\nsupersedes all prior agreements and understandings with respect thereto.\n10. Jurisdiction. This Confidentiality Agreement is being executed by AH&H in the Commonwealth of Massachusetts and it is understood\nthat AH&H will perform its services hereunder in that jurisdiction. Accordingly, this Confidentiality Agreement and all questions relating to its\nvalidity, interpretation, performance, and enforcement shall be governed by and construed, interpreted, and enforced in accordance with the internal\nlaws, and not the law of conflicts of law, of the Commonwealth of Massachusetts. To the extent that a court of competent jurisdiction determines that\nany provision or provisions contained herein are not enforceable, such provision or provisions shall be limited to the maximum extent enforceable\nunder applicable law.\n11. Termination. The provisions relating to confidentiality contained in this letter shall terminate upon the earlier of (a) five years from the\ndate hereof, (b) the execution of a separate agreement addressing the confidential use of non-public information specifically superceding this\nAgreement, or (c) if you enter into a negotiated transaction with the Company, as of the date such transaction is consummated.\nIf you agree with and accept the foregoing, please sign and return one copy of this Agreement, which will constitute our agreement with respect to\nthe subject matter of this letter.\nVery truly yours,\nADAMS, HARKNESS & HILL, INC.\nBy: /s/ DAVID THIBODEAU\nDavid Thibodeau\nPrincipal\nACCEPTED AND AGREED:\nSUNRICH FOODS\nBy: /s/ ALLAN ROUTH\nName: Allan Routh\nTitle President/CEO\nDate: May 8, 2002	EX-99.(D)(3) 14 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nAdams, Harkness & Hill, Inc\n60 State Street\nBoston, MA 62109\n(617) 371-3700\nConfidential\nMay 8, 2002\nAllan Routh\nPresident and CEO\nSunrich Foods\n3824 Southwest 93rd Street\nHope, MN 56046\nLadies and Gentlemen:\nAdams, Harkness & Hill, Inc. ("AH&H"), on behalf of and as exclusive, retained advisor to Opta Food Ingredients, Inc., a Delaware\ncorporation (the "Company"), and the Company are prepared to furnish you with certain publicly available and material non-public information\ndescribing the Company in connection with your consideration of a possible negotiated transaction with the Company. As a condition to our\ndisclosure of the identity of the Company and furnishing such publicly available and material non-public information you agree, on behalf of your\ndirectors, officers, employees, affiliates, advisors and agents (your "Representatives") to the terms of this Agreement:\n1. Definition of Confidential Information. In the context of this Agreement, Confidentia Information shal mean (i) the identity of the\nCompany; (ii) any information, written or oral, whether prepared by AH&H, the Company, its advisors, agents or otherwise that is to be, or has been,\nfurnished by or on behalf of the Company in accordance with the provisions of this letter; and (iii) your consideration of a possible negotiated\ntransaction with the Company.\n2. Use of Confidential Information. You hereby agree that the Confidential Information will be used solely for the purpose of evaluating a\npossible negotiated transaction between you and the Company and not in any way directly or indirectly detrimental to the Company. Unless\notherwise required by law, you and your Representatives will not disclose the Confidential Information, without the prior written consent of the\nCompany, to any person (including any corporation, company, partnership, or individual) and will limit the dissemination of the Confidential\nInformation to your Representatives who need to know the information for the sole purpose of evaluating a possible negotiated transaction with the\nCompany. You shall be fully liable for any breach of this Agreement by any of your Representatives. You further agree to treat the Confidential\nInformation in the same manner as you treat confidential information of a similar nature. You also agree that you will inform each of your\nRepresentatives who will receive Confidentia Information of your obligations under this letter. This paragraph shall be broadly interpreted to\nprohibit, without limitation, any discussions with potential co-bidders or other transaction partners without the prior written consent of the Company.\n3. No Contacts with the Company. You agree that, at the conclusion of your review of the Confidential Information, or within three\nbusiness days of the Company's request, you and your Representatives shall redeliver to AH&H all copies of the Confidential Information in\nany\nform whatsoever (including without limitation any reports, memoranda or other material prepared by you or your Representatives). Unless consented\nto in advance in writing by the Chief Executive Officer of the Company, for a period of one year after the date hereof, you shall not, and you shall\nnot permit any Representative of yours to, directly or indirectly, solicit any Company personnel with whom you or any Representative of yours\nhas\ncontact in connection with discussions or negotiations regarding a possible negotiated transaction to leave the employ of the Company or to accept\nemployment by you or any affiliate of yours or have any discussions with any such person regarding such cessation of employment or re-\nemployment.\n1\n4. Agreement to Standstill. You agree that, for a period of eighteen months from the date of this agreement (the "Standstill Period"), unless\nspecifically invited in writing by us or the Company, neither you nor any of your Representatives, acting on your behalf, will in any manner, directly\nor indirectly, (a) other than through a confidential offer directed to the Company, effect or seek offer or propose to effect, or cause or participate in or\nin any way assist any other person to effect or seek, offer or propose to effect or participate in, (i) any acquisition of any securities (or beneficial\nownership\nthereof) or assets of the Company; (ii) any tender or exchange offer, merger or other business combination involving the Company; (iii)\nany recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company; or (iv) any "solicitation"\nof "proxies" (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of\nthe\nother\nparty;\n(b)\nfrom,\njoin\nor\nin\nany\nway\nparticipate\nin\na\n"group"\n(as\ndefined\nunder\nthe\nSecurities\nExchange\nAct\nof\n1934,\nas\namended)\nwith\nrespect\nto\nthe Company; (c) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the\nCompany; (d) take any action that might force the Company to make a public announcement regarding any of the types of matters set forth in (a)\nabove; or (e) enter into any discussion or arrangements with any third party with respect to any of the foregoing. Notwithstanding the foregoing,\nif\nduring the Standstill Period, any third party shall publicly announce and thereafter commence a tender or exchange offer which, if consummated,\nwould give such third party ownership of 50% or more of the outstanding shares of the Company (a "Third Party Offer"), you shall be entitled to\ncommence a tender offer (a "Competing Offer") for at least the same number of shares (provided that the Competing Offer provides for a second-\nstep merger yielding a blended purchase price per share which is at least equal to the purchase price per share offered by the third party in the Third\nParty Offer and in any subsequent second-step merger or acquisition transaction if one is proposed by such third party) and to purchase shares\npursuant to such Competing Offer.\n5. Subpoena or Other Order. In the event that you or your Representatives receive a request to disclose all or any part of the Confidential\nInformation under the terms of a valid and effective subpoena or other order issued by a court having jurisdiction or by a governmental body, or, in\naccordance with the written legal opinion of your counsel, by any federal or state law or regulation, you agree that you will promptly notify AH&H\nand the Company of the existence, terms and circumstances surrounding such a request, so that the Company may seek an appropriate protective\norder or other remedy and/or waive your compliance with the provisions of this Agreement. If disclosure of such information is required in the\nwritten opinion of your counsel, you agree that you will exercise reasonable efforts to obtain an order or other reliable assurance that confidential\ntreatment will be accorded to such of the disclosed information which we or the Company so designates.\n6. No Representation as to Accuracy. You understand that neither AH&H, the Company nor any of their respective agents or employees\nhas made or makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information. Neither\nAH&H nor the Company shall have any liability to anyone resulting from the use of any Confidential Information (or any errors therein or omissions\ntherefrom), except as provided in any definitive acquisition or other agreement between the Company and you.\n7.\nNo Binding Agreement for Transaction Herein. You agree that unless and until a definitive agreement between the Company and you\nwith respect to any transaction involving the Company has been executed and delivered, neither the Company nor you will be under any legal\nobligation of any kind whatsoever with respect to such a transaction by virtue of this letter or any other written or oral expression with respect\nto\nsuch a transaction by any of the directors, officers, employees, representatives, advisors, or agents of the Company except, in the case of this\nAgreement, for the matters specifically agreed to herein.\n8.\nRemedies. You agree that money damages would not be a sufficient remedy for any breach of the agreements contained in this letter by\nyou or your Representatives, and that the Company shall be entitled to specific performance and injunctive relief as remedies for any such breach or\nthreatened breach. Such remedies shall not be considered to be the exclusive remedies for any such breach or threatened breach, but shall be in\naddition to all other remedies available at law or equity to the Company.\n2\n9. Entire Agreement. This Agreement constitutes the entire understanding of the parties hereto with respect to the subject matter hereof and\nsupersedes all prior agreements and understandings with respect thereto.\n10. Jurisdiction. This Confidentiality Agreement is being executed by AH&H in the Commonwealth of Massachusetts and it is understood\nthat AH&H will perform its services hereunder in that jurisdiction. Accordingly, this Confidentiality Agreement and all questions relating to its\nvalidity, interpretation, performance, and enforcement shall be governed by and construed, interpreted, and enforced in accordance with the internal\nlaws, and not the law of conflicts of law, of the Commonwealth of Massachusetts. To the extent that a court of competent jurisdiction determines that\nany provision or provisions contained herein are not enforceable, such provision or provisions shall be limited to the maximum extent enforceable\nunder applicable law.\n11. Termination. The provisions relating to confidentiality contained in this letter shall terminate upon the earlier of (a) five years from the\ndate hereof, (b) the execution of a separate agreement addressing the confidential use of non-public information specifically superceding this\nAgreement, or (c) if you enter into a negotiated transaction with the Company, as of the date such transaction is consummated.\nIf you agree with and accept the foregoing, please sign and return one copy of this Agreement, which will constitute our agreement with respect\nto\nthe subject matter of this letter.\nVery truly yours,\nADAMS, HARKNESS & HILL, INC.\nBy: /S/ DAVID THIBODEAU\nDavid Thibodeau\nPrincipal\nACCEPTED AND AGREED:\nSUNRICH FOODS\nBy: /S/ ALLAN ROUTH\nName: Allan Routh\nTitle President/CEO\nDate: May 8, 2002\n3	EX-99.(D)(3) 14 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nAdams, Harkness & Hill, Inc\n60 State Street\nBoston, MA 62109\n(617) 371-3700\nConfidential\nMay 8, 2002\nAllan Routh\nPresident and CEO\nSunrich Foods\n3824 Southwest 93rd Street\nHope, MN 56046\nLadies and Gentlemen:\nAdams, Harkness & Hill, Inc. (“AH&H”), on behalf of and as exclusive, retained advisor to Opta Food Ingredients, Inc., a Delaware\ncorporation (the “Company”), and the Company are prepared to furnish you with certain publicly available and material non-public information\ndescribing the Company in connection with your consideration of a possible negotiated transaction with the Company. As a condition to our\ndisclosure of the identity of the Company and furnishing such publicly available and material non-public information you agree, on behalf of your\ndirectors, officers, employees, affiliates, advisors and agents (your “Representatives”) to the terms of this Agreement:\n1. Definition of Confidential Information. In the context of this Agreement, Confidential Information shall mean (i) the identity of the\nCompany; (ii) any information, written or oral, whether prepared by AH&H, the Company, its advisors, agents or otherwise that is to be, or has been,\nfurnished by or on behalf of the Company in accordance with the provisions of this letter; and (iii) your consideration of a possible negotiated\ntransaction with the Company.\n2. Use of Confidential Information. You hereby agree that the Confidential Information will be used solely for the purpose of evaluating a\npossible negotiated transaction between you and the Company and not in any way directly or indirectly detrimental to the Company. Unless\notherwise required by law, you and your Representatives will not disclose the Confidential Information, without the prior written consent of the\nCompany, to any person (including any corporation, company, partnership, or individual) and will limit the dissemination of the Confidential\nInformation to your Representatives who need to know the information for the sole purpose of evaluating a possible negotiated transaction with the\nCompany. You shall be fully liable for any breach of this Agreement by any of your Representatives. You further agree to treat the Confidential\nInformation in the same manner as you treat confidential information of a similar nature. You also agree that you will inform each of your\nRepresentatives who will receive Confidential Information of your obligations under this letter. This paragraph shall be broadly interpreted to\nprohibit, without limitation, any discussions with potential co-bidders or other transaction partners without the prior written consent of the Company.\n3. No Contacts with the Company. You agree that, at the conclusion of your review of the Confidential Information, or within three\nbusiness days of the Company’s request, you and your Representatives shall redeliver to AH&H all copies of the Confidential Information in any\nform whatsoever (including without limitation any reports, memoranda or other material prepared by you or your Representatives). Unless consented\nto in advance in writing by the Chief Executive Officer of the Company, for a period of one year after the date hereof, you shall not, and you shall\nnot permit any Representative of yours to, directly or indirectly, solicit any Company personnel with whom you or any Representative of yours has\ncontact in connection with discussions or negotiations regarding a possible negotiated transaction to leave the employ of the Company or to accept\nemployment by you or any affiliate of yours or have any discussions with any such person regarding such cessation of employment or re-\nemployment.\n1\n4. Agreement to Standstill. You agree that, for a period of eighteen months from the date of this agreement (the “Standstill Period”), unless\nspecifically invited in writing by us or the Company, neither you nor any of your Representatives, acting on your behalf, will in any manner, directly\nor indirectly, (a) other than through a confidential offer directed to the Company, effect or seek offer or propose to effect, or cause or participate in or\nin any way assist any other person to effect or seek, offer or propose to effect or participate in, (i) any acquisition of any securities (or beneficial\nownership thereof) or assets of the Company; (ii) any tender or exchange offer, merger or other business combination involving the Company; (iii)\nany recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company; or (iv) any “solicitation”\nof “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the\nother party; (b) from, join or in any way participate in a “group” (as defined under the Securities Exchange Act of 1934, as amended) with respect to\nthe Company; (c) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the\nCompany; (d) take any action that might force the Company to make a public announcement regarding any of the types of matters set forth in (a)\nabove; or (e) enter into any discussion or arrangements with any third party with respect to any of the foregoing. Notwithstanding the foregoing, if\nduring the Standstill Period, any third party shall publicly announce and thereafter commence a tender or exchange offer which, if consummated,\nwould give such third party ownership of 50% or more of the outstanding shares of the Company (a “Third Party Offer”), you shall be entitled to\ncommence a tender offer (a “Competing Offer”) for at least the same number of shares (provided that the Competing Offer provides for a second-\nstep merger yielding a blended purchase price per share which is at least equal to the purchase price per share offered by the third party in the Third\nParty Offer and in any subsequent second-step merger or acquisition transaction if one is proposed by such third party) and to purchase shares\npursuant to such Competing Offer.\n5. Subpoena or Other Order. In the event that you or your Representatives receive a request to disclose all or any part of the Confidential\nInformation under the terms of a valid and effective subpoena or other order issued by a court having jurisdiction or by a governmental body, or, in\naccordance with the written legal opinion of your counsel, by any federal or state law or regulation, you agree that you will promptly notify AH&H\nand the Company of the existence, terms and circumstances surrounding such a request, so that the Company may seek an appropriate protective\norder or other remedy and/or waive your compliance with the provisions of this Agreement. If disclosure of such information is required in the\nwritten opinion of your counsel, you agree that you will exercise reasonable efforts to obtain an order or other reliable assurance that confidential\ntreatment will be accorded to such of the disclosed information which we or the Company so designates.\n6. No Representation as to Accuracy. You understand that neither AH&H, the Company nor any of their respective agents or employees\nhas made or makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information. Neither\nAH&H nor the Company shall have any liability to anyone resulting from the use of any Confidential Information (or any errors therein or omissions\ntherefrom), except as provided in any definitive acquisition or other agreement between the Company and you.\n7. No Binding Agreement for Transaction Herein. You agree that unless and until a definitive agreement between the Company and you\nwith respect to any transaction involving the Company has been executed and delivered, neither the Company nor you will be under any legal\nobligation of any kind whatsoever with respect to such a transaction by virtue of this letter or any other written or oral expression with respect to\nsuch a transaction by any of the directors, officers, employees, representatives, advisors, or agents of the Company except, in the case of this\nAgreement, for the matters specifically agreed to herein.\n8. Remedies. You agree that money damages would not be a sufficient remedy for any breach of the agreements contained in this letter by\nyou or your Representatives, and that the Company shall be entitled to specific performance and injunctive relief as remedies for any such breach or\nthreatened breach. Such remedies shall not be considered to be the exclusive remedies for any such breach or threatened breach, but shall be in\naddition to all other remedies available at law or equity to the Company.\n2\n9. Entire Agreement. This Agreement constitutes the entire understanding of the parties hereto with respect to the subject matter hereof and\nsupersedes all prior agreements and understandings with respect thereto.\n10. Jurisdiction. This Confidentiality Agreement is being executed by AH&H in the Commonwealth of Massachusetts and it is understood\nthat AH&H will perform its services hereunder in that jurisdiction. Accordingly, this Confidentiality Agreement and all questions relating to its\nvalidity, interpretation, performance, and enforcement shall be governed by and construed, interpreted, and enforced in accordance with the internal\nlaws, and not the law of conflicts of law, of the Commonwealth of Massachusetts. To the extent that a court of competent jurisdiction determines that\nany provision or provisions contained herein are not enforceable, such provision or provisions shall be limited to the maximum extent enforceable\nunder applicable law.\n11. Termination. The provisions relating to confidentiality contained in this letter shall terminate upon the earlier of (a) five years from the\ndate hereof, (b) the execution of a separate agreement addressing the confidential use of non-public information specifically superceding this\nAgreement, or (c) if you enter into a negotiated transaction with the Company, as of the date such transaction is consummated.\nIf you agree with and accept the foregoing, please sign and return one copy of this Agreement, which will constitute our agreement with respect to\nthe subject matter of this letter.\nVery truly yours,\nADAMS, HARKNESS & HILL, INC.\nBy: /S/ DAVID THIBODEAU\nDavid Thibodeau\nPrincipal\nACCEPTED AND AGREED:\nSUNRICH FOODS\nBy: /S/ ALLAN ROUTH\nName: Allan Routh\nTitle President/CEO\nDate: May 8, 2002\n3
a7b5a4ad7e03751de380f2fba0a89b1f.pdf	effective_date jurisdiction party term	EX-10.1 2 dex101.htm NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT\nExhibit 10.1\nNON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (this “Agreement”), which is effective as of\nJanuary 31, 2007 (the “Effective Date”), is by and among L. Don Stricklin, an individual who resides in La Grange, Texas (the “Undersigned”),\nTexas United Bancshares, Inc., a Texas corporation (the “Company”), and Prosperity Bancshares, Inc., a Texas corporation (“Prosperity\nBancshares”). Prosperity Bancshares and Prosperity Bank, a Texas banking association are collectively referred to herein as “Prosperity.”\nWHEREAS, this Agreement is being entered into in connection with the Agreement and Plan of Reorganization, dated as of July 18, 2006, as\namended, by and between Prosperity Bancshares and the Company (the “Merger Agreement”), pursuant to which the Company will merge with and\ninto Prosperity Bancshares, with Prosperity Bancshares as the surviving entity (the “Merger”); and\nWHEREAS, Prosperity Bancshares has required as a condition to consummation of the Merger that the Undersigned execute and deliver a\nnon-competition and non-solicitation agreement for the benefit of Prosperity and the Undersigned’s agreement to and compliance with the provisions\nof this Agreement are a material factor, material inducement and material condition to Prosperity’s participation in the transactions contemplated by\nthe Merger Agreement; and\nWHEREAS, Prosperity has agreed to pay the Undersigned $65,000 per year for two years in consideration for the Undersigned executing and\ndelivering this Agreement; and\nWHEREAS, the Undersigned will receive pecuniary and other benefits as a result of the Merger; and\nWHEREAS, the Undersigned, as a director, executive officer and/or shareholder of the Company, as the case may be, has had access to certain\nConfidential Information (as hereinafter defined), including, without limitation, information concerning the Company’s business and the\nrelationships between the Company, its subsidiaries and their customers, and the Undersigned will continue to have access to Confidential\nInformation and may have access to new Confidential Information of the Company; and\nWHEREAS, the Undersigned recognizes that Prosperity Bancshares would not have entered into the Merger Agreement without the\nUndersigned agreeing to the terms and conditions of this Agreement; and\nWHEREAS, any capitalized term not defined herein shall have the meaning set forth in the Merger Agreement;\n1\nNOW, THEREFORE, in consideration of the good and valuable consideration contained herein and in the Merger Agreement, the receipt and\nsufficiency of which are hereby acknowledged, the Undersigned hereby agrees as follows:\n1. The Undersigned agrees that he will not, at any time after the Effective Date and through and including the Closing Date make any\nunauthorized disclosure, directly or indirectly, of any Confidential Information of the Company or third parties, or make any use thereof, directly or\nindirectly. The Undersigned further agrees that he will not, at any time after the Effective Date make any unauthorized disclosure, directly or\nindirectly, of any Confidential Information of Prosperity or third parties, or make any use thereof, directly or indirectly and that he shall deliver\npromptly to Prosperity at any time after the Effective Time of the Merger, at its reasonable request, without retaining any copies, all documents and\nother material in the Undersigned’s possession at that time relating, directly or indirectly, to any Confidential Information or other information of the\nCompany, or Confidential Information or other information regarding third parties, learned in such person’s position as a director, officer or\nshareholder of the Company.\nFor purposes of this Agreement, “Confidential Information” means and includes Prosperity’s and/or the Company’s confidential and/or\nproprietary information and/or trade secrets, including those of their respective subsidiaries, including Prosperity Bank, Gateway National Bank,\nGNB Financial, n.a., Northwest Bank and State Bank, that have been and/or will be developed or used and that cannot be obtained readily by third\nparties from outside sources. Confidential Information includes, but is not limited to, the following: information regarding past, current and\nprospective customers and investors and business affiliates, employees, contractors, and the industry not generally known to the public; strategies,\nmethods, books, records, and documents; technical information concerning products, equipment, services, and processes; procurement procedures,\npricing, and pricing techniques, including contact names, services provided, pricing, type and amount of services used; financial data; pricing\nstrategies and price curves; positions; plans or strategies for expansion or acquisitions; budgets; research; financial and sales data; trading\nmethodologies and terms; communications information; evaluations, opinions and interpretations of information and data; marketing and\nmerchandising techniques; electronic databases; models; specifications; computer programs; contracts; bids or proposals; technologies and methods;\ntraining methods and processes; organizational structure; personnel information; payments or rates paid to consultants or other service providers; and\nother such confidential or proprietary information. The term “Confidential Information” does not include any information that (i) at the time of\ndisclosure or thereafter is generally available to and known to the public, other than by a breach of this Agreement by the disclosing party, (ii) was\navailable to the disclosing party on a non-confidential basis from a source other than the non-disclosing party or (iii) was independently acquired or\ndeveloped without violating any obligations of this Agreement. The Undersigned acknowledges that the Company’s and Prosperity’s business is\nhighly competitive, that this Confidential Information constitutes a valuable, special and unique asset to be acquired by Prosperity in the Merger and\nthat protection of such Confidential Information against unauthorized disclosure and use is of critical importance to the Company and Prosperity.\n2\n2. The Undersigned agrees that, for the period (the “Non-Competition Period”) beginning on the Effective Date and through the second\nanniversary of the Closing Date, the Undersigned will not, in any capacity, directly or indirectly:\na)\ncompete or engage, anywhere in the geographic area comprised of the fifty (50) mile radius surrounding any banking center of\nthe Company or Prosperity or any other banking center operated or owned directly or indirectly by Prosperity (the “Market\nArea”), in a business similar to that of the Company or Prosperity, or compete or engage in that type of business which the\nCompany or Prosperity has plans to engage in, or any business which the Company or Prosperity has engaged in during the\npreceding twelve (12) month period if within the twenty-four (24) months before the Closing Date, the Undersigned had access or\npotential access to Confidential Information regarding the proposed plans or the business in which the Company or Prosperity\nengaged or planned to engage; or\nb) take any action to invest in, own, manage, operate, control, participate in, be employed or engaged by or be connected in any\nmanner with any partnership, corporation or other business or entity engaging in a business similar to that of Prosperity or the\nCompany anywhere within the Market Area. Notwithstanding the foregoing, the Undersigned is permitted hereunder to own,\ndirectly or indirectly, up to one percent (1%) of the issued and outstanding securities of any publicly traded financial institution\nconducting business in the Market Area; or\nc)\ncall on, service or solicit competing business from customers or prospective customers of the Company or Prosperity or their\nrespective Subsidiaries.\n3. The Undersigned agrees that, other than as set forth in this Section 3, for the period (the “Non-Solicitation Period”) beginning on the\nEffective Date and through the fifth anniversary of the Closing Date, the Undersigned will not, in any capacity, directly or indirectly, call on, solicit,\nor hire any current or past employee of the Company or any of its subsidiaries and/or of Prosperity or any of its subsidiaries, and will not assist any\nother person or entity in such activities. Additionally, the Undersigned agrees that for the Non-Solicitation Period he will not, in any capacity,\ndirectly or indirectly, induce any employee of the Company or any of its subsidiaries and/or of Prosperity or any of its subsidiaries to terminate\nemployment from the Company or any of its subsidiaries or from Prosperity or any of its subsidiaries, and will not assist any other person or entity in\nsuch activities. The Undersigned further agrees and acknowledges that he may be permitted to call on, solicit, or hire any such employee who is no\nlonger employed by the Company or any of its subsidiaries or by Prosperity or any of its subsidiaries; provided the Undersigned receives prior\nwritten authorization from Prosperity before engaging in any such action. Provided, however, that after the second anniversary of the Closing Date,\nif Prosperity shall not be the surviving corporation in a merger then the Non-Solicitation Period shall end.\n4. The Undersigned acknowledges that the restrictions imposed by this Agreement are legitimate, reasonable and necessary to protect\nProsperity’s proposed acquisition of the\n3\nCompany and the goodwill thereof. The Undersigned acknowledges that the scope and duration of the restrictions contained herein are reasonable in\nlight of the time that the Undersigned has been engaged in the business of the Company and the Undersigned’s relationship with the customers of the\nCompany. The Undersigned further acknowledges that the restrictions contained herein are not burdensome to the Undersigned in light of the\nconsideration to be paid therefor and the other opportunities that remain open to the Undersigned. Moreover, the Undersigned acknowledges that he\nhas and will have other means available to him for the pursuit of his livelihood after the Effective Date.\n5. The Undersigned acknowledges and agrees that the breach of any of the covenants made by the Undersigned in this Agreement would cause\nirreparable injury to Prosperity, which could not sufficiently be remedied by monetary damages; and, therefore, that Prosperity shall be entitled to\nobtain such equitable relief as declaratory judgments; temporary, preliminary and permanent injunctions, without posting of any bond, and order of\nspecific performance to enforce those covenants or to prohibit any act or omission that constitutes a breach thereof. If Prosperity must bring suit to\nenforce this Agreement, the prevailing party shall be entitled to recover its attorneys’ fees and costs related thereto.\n6. In the event that Prosperity shall file a lawsuit in any court of competent jurisdiction alleging a breach of the non-disclosure, non-\ncompetition or non-solicitation provisions of this Agreement by the Undersigned, then any time period set forth in this Agreement including the time\nperiod set forth in Sections 2 and 3 above, shall be deemed tolled as of the time such lawsuit is filed and shall remain tolled until such dispute finally\nis resolved either by written settlement agreement resolving all claims raised in such lawsuit or by entry of a final judgment in such lawsuit and the\nfinal resolution of any post-judgment appellate proceedings.\n7. In consideration for the above obligations of the Undersigned, in addition to those matters set forth in the Recitals to this Agreement, the\nCompany agrees to provide the Undersigned with immediate access to new Confidential Information relating to the Company’s business, which will\nbecome Prosperity’s business after the Closing Date. The Undersigned also will have immediate access to, or knowledge of, new Confidential\nInformation of third parties, such as actual and potential customers, suppliers, partners, joint venturers, investors, financing sources, etc., of the\nCompany and of Prosperity after the Closing Date. In addition, in exchange for the Undersigned’s promises in Sections 2 and 3 of this Agreement,\nProsperity will pay the Undersigned a payment of $65,000 per year for two years, less applicable withholding taxes, payable in equal installments on\na semi-monthly basis beginning with the first installment to be made on the Closing Date and each subsequent installment to be made on the first and\nfifteenth day of each month following the Closing Date (or as soon as administratively practicable thereafter). Notwithstanding any provision of this\nAgreement to the contrary, no payment or benefit will be provided under this Section 7 until the earliest of (i) the date which is 6 months after the\ndate of the Undersigned’s termination of employment, or (ii) the date of Undersigned’s death. Payments to which the Undersigned would otherwise\nbe entitled during the 6-month period described above will be accumulated and paid in a lump sum on the first day of the seventh month after the\ndate of the Undersigned’s termination of employment. In addition, if any provision of this Agreement (or of any award of compensation) would\ncause the Undersigned to incur any additional tax or interest under Section 409A of the Code or any regulations or\n4\nTreasury guidance promulgated thereunder, the Undersigned shall reform such provision; provided that Prosperity shall (A) maintain, to the\nmaximum extent practicable, the original intent of the applicable provision without violating the provisions of Section 409A of the Code and\n(B) notify and consult with the Undersigned regarding such amendments or modifications prior to the effective date of any such change.\n8. This Agreement exclusively shall be governed by and construed in accordance with the laws of the State of Texas. Exclusive venue of any\ndispute relating to this Agreement shall be, and is convenient in federal district court or in the district courts of Harris County, Texas. The\nUndersigned agrees that he will not contest venue in Harris County, Texas or the application of Texas laws to any dispute relating to this Agreement\nor the Undersigned’s employment with the Company and/or Prosperity.\n9. This Agreement shall not be amended, modified, or altered in any manner except in writing signed by both parties.\n10. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining\nprovisions shall remain in full force and effect, as if this Agreement has been executed without any such invalid provisions having been included.\nSuch invalid provision shall be reformed in a manner that is both (i) legal and enforceable, and (ii) most closely represents the parties’ original\nintent.\n11. EACH OF THE PARTIES HERETO HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR\nCAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR ANY DEALINGS BETWEEN THEM RELATING TO THE\nSUBJECT MATTER OF THIS AGREEMENT OR THE RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS\nWAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND\nTHAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING CONTRACT CLAIMS, TORT CLAIMS,\nBREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO\nACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP THAT\nEACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE\nTO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND\nREPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND\nVOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS\nIRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A\nMUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION AND EXECUTED BY EACH OF THE PARTIES\nHERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, SUPPLEMENTS OR MODIFICATIONS\nHERETO. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE\nCOURT.\n5\n12. This Agreement sets forth the entire agreement of the parties relating to the subject matter hereof, and supersede any and all other\nagreements or understandings, written or oral, between Prosperity and the Undersigned. The Undersigned has no oral representations,\nunderstandings or agreements with Prosperity or any of its officers, directors or representatives covering the same subject matter as this Agreement.\nThis Agreement is the final, complete and exclusive statement and expression of the agreement among the parties hereto and of all the terms of this\nAgreement, and it cannot be varied, contradicted or supplemented by evidence of any prior or contemporaneous oral or written agreements.\n13. This Agreement shall be binding upon and shall inure to the benefit of Prosperity and its successors and assigns, including, without\nlimitation, any successor by merger, consolidation or stock purchase of Prosperity and any entity or person that acquires all or substantially all of the\nassets of Prosperity.\n[Signature Page Follows]\n6\nIN WITNESS WHEREOF, the Undersigned has caused this Agreement to be duly executed as of the date first written above.\nUNDERSIGNED\n/s/ L. Don Stricklin\nL. Don Stricklin\nTEXAS UNITED BANCSHARES, INC.\nBy: /s/ Jeff A. Wilkinson\nName: Jeff A. Wilkinson\nTitle: Chief Financial Officer and Executive Vice\nPresident\nPROSPERITY BANCSHARES, INC.\nBy: /s/ David Zalman\nName: David Zalman\nTitle: Chairman of the Board and Chief Executive Officer\n7	EX-10.1 2 dex101.htm NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT\nExhibit 10.1\nNON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (this “Agreement”), which is effective as of\nJanuary 31, 2007 (the “Effective Date”), is by and among L. Don Stricklin, an individual who resides in La Grange, Texas (the “Undersigned”),\nTexas United Bancshares, Inc., a Texas corporation (the “Company”), and Prosperity Bancshares, Inc., a Texas corporation (“Prosperity\nBancshares”). Prosperity Bancshares and Prosperity Bank, a Texas banking association are collectively referred to herein as “Prosperity.”\nWHEREAS, this Agreement is being entered into in connection with the Agreement and Plan of Reorganization, dated as of July 18, 2006, as\namended, by and between Prosperity Bancshares and the Company (the “Merger Agreement”), pursuant to which the Company will merge with and\ninto Prosperity Bancshares, with Prosperity Bancshares as the surviving entity (the “Merger”); and\nWHEREAS, Prosperity Bancshares has required as a condition to consummation of the Merger that the Undersigned execute and deliver a\nnon-competition and non-solicitation agreement for the benefit of Prosperity and the Undersigned’s agreement to and compliance with the provisions\nof this Agreement are a material factor, material inducement and material condition to Prosperity’s participation in the transactions contemplated by\nthe Merger Agreement; and\nWHEREAS, Prosperity has agreed to pay the Undersigned $65,000 per year for two years in consideration for the Undersigned executing and\ndelivering this Agreement; and\nWHEREAS, the Undersigned will receive pecuniary and other benefits as a result of the Merger; and\nWHEREAS, the Undersigned, as a director, executive officer and/or shareholder of the Company, as the case may be, has had access to certain\nConfidential Information (as hereinafter defined), including, without limitation, information concerning the Company’s business and the\nrelationships between the Company, its subsidiaries and their customers, and the Undersigned will continue to have access to Confidential\nInformation and may have access to new Confidential Information of the Company; and\nWHEREAS, the Undersigned recognizes that Prosperity Bancshares would not have entered into the Merger Agreement without the\nUndersigned agreeing to the terms and conditions of this Agreement; and\nWHEREAS, any capitalized term not defined herein shall have the meaning set forth in the Merger Agreement;\n1\nNOW, THEREFORE, in consideration of the good and valuable consideration contained herein and in the Merger Agreement, the receipt and\nsufficiency of which are hereby acknowledged, the Undersigned hereby agrees as follows:\n1. The Undersigned agrees that he will not, at any time after the Effective Date and through and including the Closing Date make any\nunauthorized disclosure, directly or indirectly, of any Confidential Information of the Company or third parties, or make any use thereof, directly or\nindirectly. The Undersigned further agrees that he will not, at any time after the Effective Date make any unauthorized disclosure, directly or\nindirectly, of any Confidential Information of Prosperity or third parties, or make any use thereof, directly or indirectly and that he shall deliver\npromptly to Prosperity at any time after the Effective Time of the Merger, at its reasonable request, without retaining any copies, all documents and\nother material in the Undersigned’s possession at that time relating, directly or indirectly, to any Confidential Information or other information of the\nCompany, or Confidential Information or other information regarding third parties, learned in such person’s position as a director, officer or\nshareholder of the Company.\nFor purposes of this Agreement, “Confidential Information” means and includes Prosperity’s and/or the Company’s confidential and/or\nproprietary information and/or trade secrets, including those of their respective subsidiaries, including Prosperity Bank, Gateway National Bank,\nGNB Financial, n.a., Northwest Bank and State Bank, that have been and/or will be developed or used and that cannot be obtained readily by third\nparties from outside sources. Confidential Information includes, but is not limited to, the following: information regarding past, current and\nprospective customers and investors and business affiliates, employees, contractors, and the industry not generally known to the public; strategies,\nmethods, books, records, and documents; technical information concerning products, equipment, services, and processes; procurement procedures,\npricing, and pricing techniques, including contact names, services provided, pricing, type and amount of services used; financial data; pricing\nstrategies and price curves; positions; plans or strategies for expansion or acquisitions; budgets; research; financial and sales data; trading\nmethodologies and terms; communications information; evaluations, opinions and interpretations of information and data; marketing and\nmerchandising techniques; electronic databases; models; specifications; computer programs; contracts; bids or proposals; technologies and methods;\ntraining methods and processes; organizational structure; personnel information; payments or rates paid to consultants or other service providers; and\nother such confidential or proprietary information. The term “Confidential Information” does not include any information that (i) at the time of\ndisclosure or thereafter is generally available to and known to the public, other than by a breach of this Agreement by the disclosing party, (ii) was\navailable to the disclosing party on a non-confidential basis from a source other than the non-disclosing party or (iii) was independently acquired or\ndeveloped without violating any obligations of this Agreement. The Undersigned acknowledges that the Company’s and Prosperity’s business is\nhighly competitive, that this Confidential Information constitutes a valuable, special and unique asset to be acquired by Prosperity in the Merger and\nthat protection of such Confidential Information against unauthorized disclosure and use is of critical importance to the Company and Prosperity.\n2\n2. The Undersigned agrees that, for the period (the “Non-Competition Period”) beginning on the Effective Date and through the second anniversary of the Closing Date, the Undersigned will not, in any capacity, directly or indirectly: a)\nb)\n0)\ncompete or engage, anywhere in the geographic area comprised of the fifty (50) mile radius surrounding any banking center of\nthe Company or Prosperity or any other banking center operated or owned directly or indirectly by Prosperity (the “Market\nArea”), in a business similar to that of the Company or Prosperity, or compete or engage in that type of business which the\nCompany or Prosperity has plans to engage in, or any business which the Company or Prosperity has engaged in during the\npreceding twelve (12) month period if within the twenty-four (24) months before the Closing Date, the Undersigned had access or\npotential access to Confidential Information regarding the proposed plans or the business in which the Company or Prosperity\nengaged or planned to engage; or\ntake any action to invest in, own, manage, operate, control, participate in, be employed or engaged by or be connected in any\nmanner with any partnership, corporation or other business or entity engaging in a business similar to that of Prosperity or the\nCompany anywhere within the Market Area. Notwithstanding the foregoing, the Undersigned is permitted hereunder to own,\ndirectly or indirectly, up to one percent (1%) of the issued and outstanding securities of any publicly traded financial institution\nconducting business in the Market Area; or\ncall on, service or solicit competing business from customers or prospective customers of the Company or Prosperity or their\nrespective Subsidiaries.\n3. The Undersigned agrees that, other than as set forth in this Section 3, for the period (the “Non-Solicitation Period”) beginning on the Effective Date and through the fifth anniversary of the Closing Date, the Undersigned will not, in any capacity, directly or indirectly, call on, solicit, or hire any current or past employee of the Company or any of its subsidiaries and/or of Prosperity or any of its subsidiaries, and will not assist any other person or entity in such activities. Additionally, the Undersigned agrees that for the Non-Solicitation Period he will not, in any capacity, directly or indirectly, induce any employee of the Company or any of its subsidiaries and/or of Prosperity or any of its subsidiaries to terminate employment from the Company or any of its subsidiaries or from Prosperity or any of its subsidiaries, and will not assist any other person or entity in such activities. The Undersigned further agrees and acknowledges that he may be permitted to call on, solicit, or hire any such employee who is no longer employed by the Company or any of its subsidiaries or by Prosperity or any of its subsidiaries; provided the Undersigned receives prior written authorization from Prosperity before engaging in any such action. Provided, however, that after the second anniversary of the Closing Date, if Prosperity shall not be the surviving corporation in a merger then the Non-Solicitation Period shall end. 4. The Undersigned acknowledges that the restrictions imposed by this Agreement are legitimate, reasonable and necessary to protect Prosperity’s proposed acquisition of the\fCompany and the goodwill thereof. The Undersigned acknowledges that the scope and duration of the restrictions contained herein are reasonable in\nlight of the time that the Undersigned has been engaged in the business of the Company and the Undersigned’s relationship with the customers of the\nCompany. The Undersigned further acknowledges that the restrictions contained herein are not burdensome to the Undersigned in light of the\nconsideration to be paid therefor and the other opportunities that remain open to the Undersigned. Moreover, the Undersigned acknowledges that he\nhas and will have other means available to him for the pursuit of his livelihood after the Effective Date.\n5. The Undersigned acknowledges and agrees that the breach of any of the covenants made by the Undersigned in this Agreement would cause\nirreparable injury to Prosperity, which could not sufficiently be remedied by monetary damages; and, therefore, that Prosperity shall be entitled to\nobtain such equitable relief as declaratory judgments; temporary, preliminary and permanent injunctions, without posting of any bond, and order of\nspecific performance to enforce those covenants or to prohibit any act or omission that constitutes a breach thereof. If Prosperity must bring suit to\nenforce this Agreement, the prevailing party shall be entitled to recover its attorneys’ fees and costs related thereto.\n6. In the event that Prosperity shall file a lawsuit in any court of competent jurisdiction alleging a breach of the non-disclosure, non-\ncompetition or non-solicitation provisions of this Agreement by the Undersigned, then any time period set forth in this Agreement including the time\nperiod set forth in Sections 2 and 3 above, shall be deemed tolled as of the time such lawsuit is filed and shall remain tolled until such dispute finally\nis resolved either by written settlement agreement resolving all claims raised in such lawsuit or by entry of a final judgment in such lawsuit and the\nfinal resolution of any post-judgment appellate proceedings.\n7. In consideration for the above obligations of the Undersigned, in addition to those matters set forth in the Recitals to this Agreement, the\nCompany agrees to provide the Undersigned with immediate access to new Confidential Information relating to the Company’s business, which will\nbecome Prosperity’s business after the Closing Date. The Undersigned also will have immediate access to, or knowledge of, new Confidential\nInformation of third parties, such as actual and potential customers, suppliers, partners, joint venturers, investors, financing sources, etc., of the\nCompany and of Prosperity after the Closing Date. In addition, in exchange for the Undersigned’s promises in Sections 2 and 3 of this Agreement,\nProsperity will pay the Undersigned a payment of $65,000 per year for two years, less applicable withholding taxes, payable in equal installments on\na semi-monthly basis beginning with the first installment to be made on the Closing Date and each subsequent installment to be made on the first and\nfifteenth day of each month following the Closing Date (or as soon as administratively practicable thereafter). Notwithstanding any provision of this\nAgreement to the contrary, no payment or benefit will be provided under this Section 7 until the earliest of (i) the date which is 6 months after the\ndate of the Undersigned’s termination of employment, or (ii) the date of Undersigned’s death. Payments to which the Undersigned would otherwise\nbe entitled during the 6-month period described above will be accumulated and paid in a lump sum on the first day of the seventh month after the\ndate of the Undersigned’s termination of employment. In addition, if any provision of this Agreement (or of any award of compensation) would\ncause the Undersigned to incur any additional tax or interest under Section 409A of the Code or any regulations or\n4\nTreasury guidance promulgated thereunder, the Undersigned shall reform such provision; provided that Prosperity shall (A) maintain, to the\nmaximum extent practicable, the original intent of the applicable provision without violating the provisions of Section 409A of the Code and\n(B) notify and consult with the Undersigned regarding such amendments or modifications prior to the effective date of any such change.\n8. This Agreement exclusively shall be governed by and construed in accordance with the laws of the State of Texas. Exclusive venue of any\ndispute relating to this Agreement shall be, and is convenient in federal district court or in the district courts of Harris County, Texas. The\nUndersigned agrees that he will not contest venue in Harris County, Texas or the application of Texas laws to any dispute relating to this Agreement\nor the Undersigned’s employment with the Company and/or Prosperity.\n9. This Agreement shall not be amended, modified, or altered in any manner except in writing signed by both parties.\n10. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining\nprovisions shall remain in full force and effect, as if this Agreement has been executed without any such invalid provisions having been included.\nSuch invalid provision shall be reformed in a manner that is both (i) legal and enforceable, and (ii) most closely represents the parties’ original\nintent.\n11. EACH OF THE PARTIES HERETO HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR\nCAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR ANY DEALINGS BETWEEN THEM RELATING TO THE\nSUBJECT MATTER OF THIS AGREEMENT OR THE RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS\nWAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND\nTHAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING CONTRACT CLAIMS, TORT CLAIMS,\nBREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO\nACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP THAT\nEACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE\nTO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND\nREPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND\nVOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS\nIRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A\nMUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION AND EXECUTED BY EACH OF THE PARTIES\nHERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, SUPPLEMENTS OR MODIFICATIONS\nHERETO. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE\nCOURT.\n12. This Agreement sets forth the entire agreement of the parties relating to the subject matter hereof, and supersede any and all other\nagreements or understandings, written or oral, between Prosperity and the Undersigned. The Undersigned has no oral representations,\nunderstandings or agreements with Prosperity or any of its officers, directors or representatives covering the same subject matter as this Agreement.\nThis Agreement is the final, complete and exclusive statement and expression of the agreement among the parties hereto and of all the terms of this\nAgreement, and it cannot be varied, contradicted or supplemented by evidence of any prior or contemporaneous oral or written agreements.\n13. This Agreement shall be binding upon and shall inure to the benefit of Prosperity and its successors and assigns, including, without\nlimitation, any successor by merger, consolidation or stock purchase of Prosperity and any entity or person that acquires all or substantially all of the\nassets of Prosperity.\n[Signature Page Follows]\n6\nIN WITNESS WHEREOF, the Undersigned has caused this Agreement to be duly executed as of the date first written above.\nUNDERSIGNED\n/s/ L. Don Stricklin\nL. Don Stricklin\nTEXAS UNITED BANCSHARES, INC.\nBy: /s/ Jeff A. Wilkinson\nName: Jeff A. Wilkinson\nTitle: Chief Financial Officer and Executive Vice\nPresident\nPROSPERITY BANCSHARES, INC.\nBy: /s/ David Zalman\nName: David Zalman\nTitle: Chairman of the Board and Chief Executive Officer	EX-10.1 2 dex101.htm NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT\nExhibit 10.1\nNON-COMPETITION, NNON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (this "Agreement"), which is effective as of\nJanuary 31, 2007 (the "Effective Date"), is by and among L. Don Stricklin, an individual who resides in La Grange, Texas (the "Undersigned"),\nTexas United Bancshares, Inc., a Texas corporation (the "Company"), and Prosperity Bancshares, Inc., a Texas corporation ("Prosperity\nBancshares"). Prosperity Bancshares and Prosperity Bank, a Texas banking association are collectively referred to herein as "Prosperity."\nWHEREAS, this Agreement is being entered into in connection with the Agreement and Plan of Reorganization, dated as of July 18, 2006, as\namended, by and between Prosperity Bancshares and the Company (the "Merger Agreement"), pursuant to which the Company will merge with and\ninto Prosperity Bancshares, with Prosperity Bancshares as the surviving entity (the "Merger"); and\nWHEREAS, Prosperity Bancshares has required as a condition to consummation of the Merger that the Undersigned execute and deliver a\nnon-competition and non-solicitation agreement for the benefit of Prosperity and the Undersigned's agreement to and compliance with the provisions\nof this Agreement are a material factor, material inducement and material condition to Prosperity's participation in the transactions contemplated by\nthe Merger Agreement; and\nWHEREAS, Prosperity has agreed to pay the Undersigned $65,000 per year for two years in consideration for the Undersigned executing and\ndelivering this Agreement; and\nWHEREAS, the Undersigned will receive pecuniary and other benefits as a result of the Merger; and\nWHEREAS, the Undersigned, as a director, executive officer and/or shareholder of the Company, as the case may be, has had access to certain\nConfidential Information (as hereinafter defined), including, without limitation, information concerning the Company's business and the\nrelationships between the Company, its subsidiaries and their customers, and the Undersigned will continue to have access to Confidential\nInformation and may have access to new Confidential Information of the Company; and\nWHEREAS, the Undersigned recognizes that Prosperity Bancshares would not have entered into the Merger Agreement without the\nUndersigned agreeing to the terms and conditions of this Agreement; and\nWHEREAS, any capitalized term not defined herein shall have the meaning set forth in the Merger Agreement;\n1\nNOW, THEREFORE, in consideration of the good and valuable consideration contained herein and in the Merger Agreement, the receipt and\nsufficiency of which are hereby acknowledged, the Undersigned hereby agrees as follows:\n1. The Undersigned agrees that he will not, at any time after the Effective Date and through and including the Closing Date make any\nunauthorized disclosure, directly or indirectly, of any Confidential Information of the Company or third parties, or make any use thereof, directly\nor\nindirectly. The Undersigned further agrees that he will not, at any time after the Effective Date make any unauthorized disclosure, directly or\nindirectly, of any Confidential Information of Prosperity or third parties, or make any use thereof, directly or indirectly and that he shall deliver\npromptly to Prosperity at any time after the Effective Time of the Merger, at its reasonable request, without retaining any copies, all documents and\nother material in the Undersigned's possession at that time relating, directly or indirectly, to any Confidential Information or other information of the\nCompany, or Confidential Information or other information regarding third parties, learned in such person's position as a director, officer or\nshareholder of the Company.\nFor purposes of this Agreement, "Confidential Information" means and includes Prosperity's and/or the Company's confidential and/or\nproprietary information and/or trade secrets, including those of their respective subsidiaries, including Prosperity Bank, Gateway National Bank,\nGNB Financial, n.a., Northwest Bank and State Bank, that have been and/or will be developed or used and that cannot be obtained readily by third\nparties from outside sources. Confidential Information includes, but is not limited to, the following: information regarding past, current and\nprospective customers and investors and business affiliates, employees, contractors, and the industry not generally known to the public; strategies,\nmethods, books, records, and documents; technical information concerning products, equipment, services, and processes; procurement procedures,\npricing, and pricing techniques, including contact names, services provided, pricing, type and amount of services used; financial data; pricing\nstrategies and price curves; positions; plans or strategies for expansion or acquisitions; budgets; research; financial and sales data; trading\nmethodologies and terms; communications information; evaluations, opinions and interpretations of information and data; marketing and\nmerchandising techniques; electronic databases; models; specifications; computer programs; contracts; bids or proposals; technologies and methods;\ntraining methods and processes; organizational structure; personnel information; payments or rates paid to consultants or other service providers; and\nother\nsuch confidential or proprietary information. The term "Confidential Information" does not include any information that (i) at the time of\ndisclosure or thereafter is generally available to and known to the public, other than by a breach of this Agreement by the disclosing party, (ii) was\navailable to the disclosing party on a non-confidential basis from a source other than the non-disclosing party or (iii) was independently acquired\nor\ndeveloped without violating any obligations of this Agreement. The Undersigned acknowledges that the Company's and Prosperity's business is\nhighly competitive, that this Confidential Information constitutes a valuable, special and unique asset to be acquired by Prosperity in the Merger and\nthat protection of such Confidential Information against unauthorized disclosure and use is of critical importance to the Company and Prosperity.\n2\n2. The Undersigned agrees that, for the period (the "Non-Competition Period") beginning on the Effective Date and through the second\nanniversary of the Closing Date, the Undersigned will not, in any capacity, directly or indirectly:\na)\ncompete or engage, anywhere in the geographic area comprised of the fifty (50) mile radius surrounding any banking center of\nthe Company or Prosperity or any other banking center operated or owned directly or indirectly by Prosperity (the "Market\nArea"), in a business similar to that of the Company or Prosperity, or compete or engage in that type of business which the\nCompany or Prosperity has plans to engage in, or any business which the Company or Prosperity has engaged in during the\npreceding twelve (12) month period if within the twenty-four (24) months before the Closing Date, the Undersigned had access\nor\npotential access to Confidential Information regarding the proposed plans or the business in which the Company or Prosperity\nengaged or planned to engage; or\nb)\ntake any action to invest in, own, manage, operate, control, participate in, be employed or engaged by or be connected in any\nmanner with any partnership, corporation or other business or entity engaging in a business similar to that of Prosperity or the\nCompany anywhere within the Market Area. Notwithstanding the foregoing, the Undersigned is permitted hereunder to own,\ndirectly or indirectly, up to one percent (1%) of the issued and outstanding securities of any publicly traded financial institution\nconducting business in the Market Area; or\nc)\ncall on, service or solicit competing business from customers or prospective customers of the Company or Prosperity or their\nrespective Subsidiaries.\n3. The Undersigned agrees that, other than as set forth in this Section 3, for the period (the "Non-Solicitation Period") beginning on the\nEffective Date and through the fifth anniversary of the Closing Date, the Undersigned will not, in any capacity, directly or indirectly, call on, solicit,\nor hire any current or past employee of the Company or any of its subsidiaries and/or of Prosperity or any of its subsidiaries, and will not assist any\nother person or entity in such activities. Additionally, the Undersigned agrees that for the Non-Solicitation Period he will not, in any capacity,\ndirectly or indirectly, induce any employee of the Company or any of its subsidiaries and/or of Prosperity or any of its subsidiaries to terminate\nemployment from the Company or any of its subsidiaries or from Prosperity or any of its subsidiaries, and will not assist any other person or entity in\nsuch activities. The Undersigned further agrees and acknowledges that he may be permitted to call on, solicit, or hire any such employee who is\nno\nlonger\nemployed by the Company or any of its subsidiaries or by Prosperity or any of its subsidiaries; provided the Undersigned receives prior\nwritten authorization from Prosperity before engaging in any such action. Provided, however, that after the second anniversary of the Closing Date,\nif Prosperity shall not be the surviving corporation in a merger then the Non-Solicitation Period shall end.\n4. The Undersigned acknowledges that the restrictions imposed by this Agreement are legitimate, reasonable and necessary to protect\nProsperity's proposed acquisition of the\n3\nCompany and the goodwill thereof. The Undersigned acknowledges that the scope and duration of the restrictions contained herein are reasonable in\nlight of the time that the Undersigned has been engaged in the business of the Company and the Undersigned's relationship with the customers of the\nCompany. The Undersigned further acknowledges that the restrictions contained herein are not burdensome to the Undersigned in light of the\nconsideration to be paid therefor and the other opportunities that remain open to the Undersigned. Moreover, the Undersigned acknowledges that he\nhas and will have other means available to him for the pursuit of his livelihood after the Effective Date.\n5. The Undersigned acknowledges and agrees that the breach of any of the covenants made by the Undersigned in this Agreement would cause\nirreparable injury to Prosperity, which could not sufficiently be remedied by monetary damages; and, therefore, that Prosperity shall be entitled\nto\nobtain such equitable relief as declaratory judgments; temporary, preliminary and permanent injunctions, without posting of any bond, and order of\nspecific performance to enforce those covenants or to prohibit any act or omission that constitutes a breach thereof. If Prosperity must bring suit to\nenforce this Agreement, the prevailing party shall be entitled to recover its attorneys' fees and costs related thereto.\n6. In the event that Prosperity shall file a lawsuit in any court of competent jurisdiction alleging a breach of the non-disclosure, non-\ncompetition or non-solicitation provisions of this Agreement by the Undersigned, then any time period set forth in this Agreement including the\ntime\nperiod set forth in Sections 2 and 3 above, shall be deemed tolled as of the time such lawsuit is filed and shall remain tolled until such dispute finally\nis resolved either by written settlement agreement resolving all claims raised in such lawsuit or by entry of a final judgment in such lawsuit and the\nfinal resolution of any post-judgment appellate proceedings.\n7. In consideration for the above obligations of the Undersigned, in addition to those matters set forth in the Recitals to this Agreement, the\nCompany agrees to provide the Undersigned with immediate access to new Confidential Information relating to the Company's business, which\nwill\nbecome Prosperity's business after the Closing Date. The Undersigned also will have immediate access to, or knowledge of, new Confidential\nInformation of third parties, such as actual and potential customers, suppliers, partners, joint venturers, investors, financing sources, etc., of the\nCompany and of Prosperity after the Closing Date. In addition, in exchange for the Undersigned's promises in Sections 2 and 3 of this Agreement,\nProsperity will pay the Undersigned a payment of $65,000 per year for two years, less applicable withholding taxes, payable in equal installments on\na semi-monthly basis beginning with the first installment to be made on the Closing Date and each subsequent installment to be made on the first and\nfifteenth day of each month following the Closing Date (or as soon as administratively practicable thereafter). Notwithstanding any provision of this\nAgreement to the contrary, no payment or benefit will be provided under this Section 7 until the earliest of (i) the date which is 6 months after the\ndate of the Undersigned's termination of employment, or (ii) the date of Undersigned's death. Payments to which the Undersigned would otherwise\nbe entitled during the 6-month period described above will be accumulated and paid in a lump sum on the first day of the seventh month after the\ndate of the Undersigned's termination of employment. In addition, if any provision of this Agreement (or of any award of compensation) would\ncause the Undersigned to incur any additional tax or interest under Section 409A of the Code or any regulations or\n4\nTreasury guidance promulgated thereunder, the Undersigned shall reform such provision; provided that Prosperity shall (A) maintain, to the\nmaximum extent practicable, the original intent of the applicable provision without violating the provisions of Section 409A of the Code and\n(B) notify and consult with the Undersigned regarding such amendments or modifications prior to the effective date of any such change.\n8. This Agreement exclusively shall be governed by and construed in accordance with the laws of the State of Texas. Exclusive venue of any\ndispute relating to this Agreement shall be, and is convenient in federal district court or in the district courts of Harris County, Texas. The\nUndersigned agrees that he will not contest venue in Harris County, Texas or the application of Texas laws to any dispute relating to this Agreement\nor the Undersigned's employment with the Company and/or Prosperity.\n9. This Agreement shall not be amended, modified, or altered in any manner except in writing signed by both parties.\n10. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining\nprovisions shall remain in full force and effect, as if this Agreement has been executed without any such invalid provisions having been included.\nSuch invalid provision shall be reformed in a manner that is both (i) legal and enforceable, and (ii) most closely represents the parties' original\nintent.\n11. EACH OF THE PARTIES HERETO HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM\nOR\nCAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR ANY DEALINGS BETWEEN THEM RELATING TO THE\nSUBJECT MATTER OF THIS AGREEMENT OR THE RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS\nWAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND\nTHAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING CONTRACT CLAIMS, TORT CLAIMS,\nBREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO\nACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP THAT\nEACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE\nTO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND\nREPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND\nVOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS\nIRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A\nMUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION AND EXECUTED BY EACH OF THE PARTIES\nHERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, SUPPLEMENTS OR MODIFICATIONS\nHERETO. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE\nCOURT.\n5\n12. This Agreement sets forth the entire agreement of the parties relating to the subject matter hereof, and supersede any and all other\nagreements or understandings, written or oral, between Prosperity and the Undersigned. The Undersigned has no oral representations,\nunderstandings or agreements with Prosperity or any of its officers, directors or representatives covering the same subject matter as this Agreement.\nThis Agreement is the final, complete and exclusive statement and expression of the agreement among the parties hereto and of all the terms of this\nAgreement, and it cannot be varied, contradicted or supplemented by evidence of any prior or contemporaneous oral or written agreements.\n13. This Agreement shall be binding upon and shall inure to the benefit of Prosperity and its successors and assigns, including, without\nlimitation, any successor by merger, consolidation or stock purchase of Prosperity and any entity or person that acquires all or substantially all of the\nassets of Prosperity.\n[Signature Page Follows]\n6\nIN\nWITNESS WHEREOF, the Undersigned has caused this Agreement to be duly executed as of the date first written above.\nUNDERSIGNED\n/s/ L. Don Stricklin\nL. Don Stricklin\nTEXAS UNITED BANCSHARES, INC.\nBy: /s/ Jeff A. Wilkinson\nName: Jeff A. Wilkinson\nTitle: Chief Financial Officer and Executive Vice\nPresident\nPROSPERITY BANCSHARES, INC.\nBy: /s/ David Zalman\nName: David Zalman\nTitle: Chairman of the Board and Chief Executive Officer\n7	EX-10.1 2 dex101.htm NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT\nExhibit 10.1\nNON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (this “Agreement”), which is effective as of\nJanuary 31, 2007 (the “Effective Date”), is by and among L. Don Stricklin, an individual who resides in La Grange, Texas (the “Undersigned”),\nTexas United Bancshares, Inc., a Texas corporation (the “Company”), and Prosperity Bancshares, Inc., a Texas corporation (“Prosperity\nBancshares”). Prosperity Bancshares and Prosperity Bank, a Texas banking association are collectively referred to herein as “Prosperity.”\nWHEREAS, this Agreement is being entered into in connection with the Agreement and Plan of Reorganization, dated as of July 18, 2006, as\namended, by and between Prosperity Bancshares and the Company (the “Merger Agreement”), pursuant to which the Company will merge with and\ninto Prosperity Bancshares, with Prosperity Bancshares as the surviving entity (the “Merger”); and\nWHEREAS, Prosperity Bancshares has required as a condition to consummation of the Merger that the Undersigned execute and deliver a\nnon-competition and non-solicitation agreement for the benefit of Prosperity and the Undersigned’s agreement to and compliance with the provisions\nof this Agreement are a material factor, material inducement and material condition to Prosperity’s participation in the transactions contemplated by\nthe Merger Agreement; and\nWHEREAS, Prosperity has agreed to pay the Undersigned $65,000 per year for two years in consideration for the Undersigned executing and\ndelivering this Agreement; and\nWHEREAS, the Undersigned will receive pecuniary and other benefits as a result of the Merger; and\nWHEREAS, the Undersigned, as a director, executive officer and/or shareholder of the Company, as the case may be, has had access to certain\nConfidential Information (as hereinafter defined), including, without limitation, information concerning the Company’s business and the\nrelationships between the Company, its subsidiaries and their customers, and the Undersigned will continue to have access to Confidential\nInformation and may have access to new Confidential Information of the Company; and\nWHEREAS, the Undersigned recognizes that Prosperity Bancshares would not have entered into the Merger Agreement without the\nUndersigned agreeing to the terms and conditions of this Agreement; and\nWHEREAS, any capitalized term not defined herein shall have the meaning set forth in the Merger Agreement;\n1\nNOW, THEREFORE, in consideration of the good and valuable consideration contained herein and in the Merger Agreement, the receipt and\nsufficiency of which are hereby acknowledged, the Undersigned hereby agrees as follows:\n1. The Undersigned agrees that he will not, at any time after the Effective Date and through and including the Closing Date make any\nunauthorized disclosure, directly or indirectly, of any Confidential Information of the Company or third parties, or make any use thereof, directly or\nindirectly. The Undersigned further agrees that he will not, at any time after the Effective Date make any unauthorized disclosure, directly or\nindirectly, of any Confidential Information of Prosperity or third parties, or make any use thereof, directly or indirectly and that he shall deliver\npromptly to Prosperity at any time after the Effective Time of the Merger, at its reasonable request, without retaining any copies, all documents and\nother material in the Undersigned’s possession at that time relating, directly or indirectly, to any Confidential Information or other information of the\nCompany, or Confidential Information or other information regarding third parties, learned in such person’s position as a director, officer or\nshareholder of the Company.\nFor purposes of this Agreement, “Confidential Information” means and includes Prosperity’s and/or the Company’s confidential and/or\nproprietary information and/or trade secrets, including those of their respective subsidiaries, including Prosperity Bank, Gateway National Bank,\nGNB Financial, n.a., Northwest Bank and State Bank, that have been and/or will be developed or used and that cannot be obtained readily by third\nparties from outside sources. Confidential Information includes, but is not limited to, the following: information regarding past, current and\nprospective customers and investors and business affiliates, employees, contractors, and the industry not generally known to the public; strategies,\nmethods, books, records, and documents; technical information concerning products, equipment, services, and processes; procurement procedures,\npricing, and pricing techniques, including contact names, services provided, pricing, type and amount of services used; financial data; pricing\nstrategies and price curves; positions; plans or strategies for expansion or acquisitions; budgets; research; financial and sales data; trading\nmethodologies and terms; communications information; evaluations, opinions and interpretations of information and data; marketing and\nmerchandising techniques; electronic databases; models; specifications; computer programs; contracts; bids or proposals; technologies and methods;\ntraining methods and processes; organizational structure; personnel information; payments or rates paid to consultants or other service providers; and\nother such confidential or proprietary information. The term “Confidential Information” does not include any information that (i) at the time of\ndisclosure or thereafter is generally available to and known to the public, other than by a breach of this Agreement by the disclosing party, (ii) was\navailable to the disclosing party on a non-confidential basis from a source other than the non-disclosing party or (iii) was independently acquired or\ndeveloped without violating any obligations of this Agreement. The Undersigned acknowledges that the Company’s and Prosperity’s business is\nhighly competitive, that this Confidential Information constitutes a valuable, special and unique asset to be acquired by Prosperity in the Merger and\nthat protection of such Confidential Information against unauthorized disclosure and use is of critical importance to the Company and Prosperity.\n2\n2. The Undersigned agrees that, for the period (the “Non-Competition Period”) beginning on the Effective Date and through the second\nanniversary of the Closing Date, the Undersigned will not, in any capacity, directly or indirectly:\na)\ncompete or engage, anywhere in the geographic area comprised of the fifty (50) mile radius surrounding any banking center of\nthe Company or Prosperity or any other banking center operated or owned directly or indirectly by Prosperity (the “Market\nArea”), in a business similar to that of the Company or Prosperity, or compete or engage in that type of business which the\nCompany or Prosperity has plans to engage in, or any business which the Company or Prosperity has engaged in during the\npreceding twelve (12) month period if within the twenty-four (24) months before the Closing Date, the Undersigned had access or\npotential access to Confidential Information regarding the proposed plans or the business in which the Company or Prosperity\nengaged or planned to engage; or\nb) take any action to invest in, own, manage, operate, control, participate in, be employed or engaged by or be connected in any\nmanner with any partnership, corporation or other business or entity engaging in a business similar to that of Prosperity or the\nCompany anywhere within the Market Area. Notwithstanding the foregoing, the Undersigned is permitted hereunder to own,\ndirectly or indirectly, up to one percent (1%) of the issued and outstanding securities of any publicly traded financial institution\nconducting business in the Market Area; or\nc)\ncall on, service or solicit competing business from customers or prospective customers of the Company or Prosperity or their\nrespective Subsidiaries.\n3. The Undersigned agrees that, other than as set forth in this Section 3, for the period (the “Non-Solicitation Period”) beginning on the\nEffective Date and through the fifth anniversary of the Closing Date, the Undersigned will not, in any capacity, directly or indirectly, call on, solicit,\nor hire any current or past employee of the Company or any of its subsidiaries and/or of Prosperity or any of its subsidiaries, and will not assist any\nother person or entity in such activities. Additionally, the Undersigned agrees that for the Non-Solicitation Period he will not, in any capacity,\ndirectly or indirectly, induce any employee of the Company or any of its subsidiaries and/or of Prosperity or any of its subsidiaries to terminate\nemployment from the Company or any of its subsidiaries or from Prosperity or any of its subsidiaries, and will not assist any other person or entity in\nsuch activities. The Undersigned further agrees and acknowledges that he may be permitted to call on, solicit, or hire any such employee who is no\nlonger employed by the Company or any of its subsidiaries or by Prosperity or any of its subsidiaries; provided the Undersigned receives prior\nwritten authorization from Prosperity before engaging in any such action. Provided, however, that after the second anniversary of the Closing Date,\nif Prosperity shall not be the surviving corporation in a merger then the Non-Solicitation Period shall end.\n4. The Undersigned acknowledges that the restrictions imposed by this Agreement are legitimate, reasonable and necessary to protect\nProsperity’s proposed acquisition of the\n3\nCompany and the goodwill thereof. The Undersigned acknowledges that the scope and duration of the restrictions contained herein are reasonable in\nlight of the time that the Undersigned has been engaged in the business of the Company and the Undersigned’s relationship with the customers of the\nCompany. The Undersigned further acknowledges that the restrictions contained herein are not burdensome to the Undersigned in light of the\nconsideration to be paid therefor and the other opportunities that remain open to the Undersigned. Moreover, the Undersigned acknowledges that he\nhas and will have other means available to him for the pursuit of his livelihood after the Effective Date.\n5. The Undersigned acknowledges and agrees that the breach of any of the covenants made by the Undersigned in this Agreement would cause\nirreparable injury to Prosperity, which could not sufficiently be remedied by monetary damages; and, therefore, that Prosperity shall be entitled to\nobtain such equitable relief as declaratory judgments; temporary, preliminary and permanent injunctions, without posting of any bond, and order of\nspecific performance to enforce those covenants or to prohibit any act or omission that constitutes a breach thereof. If Prosperity must bring suit to\nenforce this Agreement, the prevailing party shall be entitled to recover its attorneys’ fees and costs related thereto.\n6. In the event that Prosperity shall file a lawsuit in any court of competent jurisdiction alleging a breach of the non-disclosure, non-\ncompetition or non-solicitation provisions of this Agreement by the Undersigned, then any time period set forth in this Agreement including the time\nperiod set forth in Sections 2 and 3 above, shall be deemed tolled as of the time such lawsuit is filed and shall remain tolled until such dispute finally\nis resolved either by written settlement agreement resolving all claims raised in such lawsuit or by entry of a final judgment in such lawsuit and the\nfinal resolution of any post-judgment appellate proceedings.\n7. In consideration for the above obligations of the Undersigned, in addition to those matters set forth in the Recitals to this Agreement, the\nCompany agrees to provide the Undersigned with immediate access to new Confidential Information relating to the Company’s business, which will\nbecome Prosperity’s business after the Closing Date. The Undersigned also will have immediate access to, or knowledge of, new Confidential\nInformation of third parties, such as actual and potential customers, suppliers, partners, joint venturers, investors, financing sources, etc., of the\nCompany and of Prosperity after the Closing Date. In addition, in exchange for the Undersigned’s promises in Sections 2 and 3 of this Agreement,\nProsperity will pay the Undersigned a payment of $65,000 per year for two years, less applicable withholding taxes, payable in equal installments on\na semi-monthly basis beginning with the first installment to be made on the Closing Date and each subsequent installment to be made on the first and\nfifteenth day of each month following the Closing Date (or as soon as administratively practicable thereafter). Notwithstanding any provision of this\nAgreement to the contrary, no payment or benefit will be provided under this Section 7 until the earliest of (i) the date which is 6 months after the\ndate of the Undersigned’s termination of employment, or (ii) the date of Undersigned’s death. Payments to which the Undersigned would otherwise\nbe entitled during the 6-month period described above will be accumulated and paid in a lump sum on the first day of the seventh month after the\ndate of the Undersigned’s termination of employment. In addition, if any provision of this Agreement (or of any award of compensation) would\ncause the Undersigned to incur any additional tax or interest under Section 409A of the Code or any regulations or\n4\nTreasury guidance promulgated thereunder, the Undersigned shall reform such provision; provided that Prosperity shall (A) maintain, to the\nmaximum extent practicable, the original intent of the applicable provision without violating the provisions of Section 409A of the Code and\n(B) notify and consult with the Undersigned regarding such amendments or modifications prior to the effective date of any such change.\n8. This Agreement exclusively shall be governed by and construed in accordance with the laws of the State of Texas. Exclusive venue of any\ndispute relating to this Agreement shall be, and is convenient in federal district court or in the district courts of Harris County, Texas. The\nUndersigned agrees that he will not contest venue in Harris County, Texas or the application of Texas laws to any dispute relating to this Agreement\nor the Undersigned’s employment with the Company and/or Prosperity.\n9. This Agreement shall not be amended, modified, or altered in any manner except in writing signed by both parties.\n10. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining\nprovisions shall remain in full force and effect, as if this Agreement has been executed without any such invalid provisions having been included.\nSuch invalid provision shall be reformed in a manner that is both (i) legal and enforceable, and (ii) most closely represents the parties’ original\nintent.\n11. EACH OF THE PARTIES HERETO HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR\nCAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR ANY DEALINGS BETWEEN THEM RELATING TO THE\nSUBJECT MATTER OF THIS AGREEMENT OR THE RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS\nWAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND\nTHAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING CONTRACT CLAIMS, TORT CLAIMS,\nBREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO\nACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP THAT\nEACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE\nTO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND\nREPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND\nVOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS\nIRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A\nMUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION AND EXECUTED BY EACH OF THE PARTIES\nHERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, SUPPLEMENTS OR MODIFICATIONS\nHERETO. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE\nCOURT.\n5\n12. This Agreement sets forth the entire agreement of the parties relating to the subject matter hereof, and supersede any and all other\nagreements or understandings, written or oral, between Prosperity and the Undersigned. The Undersigned has no oral representations,\nunderstandings or agreements with Prosperity or any of its officers, directors or representatives covering the same subject matter as this Agreement.\nThis Agreement is the final, complete and exclusive statement and expression of the agreement among the parties hereto and of all the terms of this\nAgreement, and it cannot be varied, contradicted or supplemented by evidence of any prior or contemporaneous oral or written agreements.\n13. This Agreement shall be binding upon and shall inure to the benefit of Prosperity and its successors and assigns, including, without\nlimitation, any successor by merger, consolidation or stock purchase of Prosperity and any entity or person that acquires all or substantially all of the\nassets of Prosperity.\n[Signature Page Follows]\n6\nIN WITNESS WHEREOF, the Undersigned has caused this Agreement to be duly executed as of the date first written above.\nUNDERSIGNED\n/s/ L. Don Stricklin\nL. Don Stricklin\nTEXAS UNITED BANCSHARES, INC.\nBy: /s/ Jeff A. Wilkinson\nName: Jeff A. Wilkinson\nTitle: Chief Financial Officer and Executive Vice\nPresident\nPROSPERITY BANCSHARES, INC.\nBy: /s/ David Zalman\nName: David Zalman\nTitle: Chairman of the Board and Chief Executive Officer\n7
a87c00460edbc6ccd0451589ae609b9b.pdf	effective_date jurisdiction party term	EX-99.(D)(1) 12 f81012tex99-d1.txt EXHIBIT 99.(D)(1) Exhibit (d)(1) MUTUAL NON-DISCLOSURE\nAGREEMENT This Non-Disclosure Agreement (this "Agreement") is made as of October 5, 2001 by and between\nInnoveda, Inc., having a principal place of business at 293 Boston Post Road West, Marlboro, Massachusetts 01752\n("Innoveda") and Mentor Graphics Corporation having a principal place of business at 8005 S.W. Boeckman Road,\nWilsonville, Oregon 97070 (the "Company"). In the course of dealings between Innoveda and Company, either party\nmay learn or receive from the other party "Confidential Information" (as that term is later defined in this Agreement) for\nthe purpose of considering various business relationships between Company and Innoveda. Company and Innoveda\ndesire to establish and set forth each party's obligations with respect to the other party's Confidential Information. In\nconsideration of the foregoing, Company and Innoveda agree as follows: 1. The term "Confidential Information" shall\nmean any and all data, know-how, trade secrets, software, technology, intellectual property, financial information,\nproduct plans, marketing plans, documentation and other information which is related to the products, technology,\nintellectual property or business of either party and which either party learns or receives from the other party, except that\nwhich the receiving party can establish: (1) was, on the date of this Agreement, generally known to the public; or (2)\nbecame generally known to the public after the date of this Agreement other than as a result of the act or omission of the\nreceiving party or such party's directors, officers, partners or employees; or (3) was rightfully known to the receiving\nparty prior to learning or receiving same from the other party; or (4) is or was disclosed by the disclosing party to third\nparties generally without restrictions on use and disclosure; or (5) the receiving party lawfully received from a third party\nwithout that third party's breach of agreement or obligation of trust; or (6) was independently developed by the receiving\nparty without the use of the other party's Confidential Information; or (7) is not disclosed to the receiving party in\ntangible form and conspicuously labeled as "confidential," "proprietary" or some similar designation, or, if disclosed\norally, is not stated to be confidential at the time of disclosure and summarized in writing within fifteen days after\ndisclosure and conspicuously labeled as confidential or some similar designation. 2. Each party considers all of its\nConfidential Information to be confidential and proprietary. All of the disclosing party's Confidential Information shall at\nall times, and throughout the world, remain the property of the disclosing party, exclusively, and all applicable rights in\npatents, copyrights and trade secrets, and all other intellectual property rights, shall remain in the disclosing party,\nexclusively. 3. The receiving party shall not directly or indirectly use any of the disclosing party's Confidential\nInformation for any purpose, except for the purpose set forth above. 4. The receiving party shall not disclose, or permit\naccess to, any portion of the other party's Confidential Information to any person except if: (1) such person is an\nemployee or consultant of the receiving party and has a need to know the Confidential Information for the purpose set\nforth above; and (2) such person is legally bound by a written contract to comply with the provisions of this Agreement.\nThe receiving party shall use the same degree of care that the receiving party uses with respect to its own information of\na similar nature, but in any event reasonable care, to prevent disclosure of the other party's Confidential Information.\nProvided, however, Confidential Information of the disclosing party may be disclosed by the receiving party as required\nby applicable law or court order but only if prior to any such disclosure, such party shall, to the extent permitted by\napplicable law, first give the other party a reasonable opportunity to review the proposed disclosure and to comment\nthereon and to provide for the protection of the Confidential Information. 5. This Agreement shall be effective as of the\ndate first written above and shall continue until either party terminates this Agreement upon ten days prior written notice\nto the other party. Each party's obligations with respect to each item of Confidential Information which it learns or\nreceives from the other party prior to the date of termination of this Agreement shall terminate five years after the date of\ntermination of this Agreement. Promptly after termination of this Agreement, each party shall return to the other party all\nof the other party's Confidential Information in tangible form, which is in its possession at the time of termination. 6.\nThis Agreement is the complete and exclusive statement of the agreement between the parties and supersedes all prior\nwritten and oral communications and agreements relating to the subject matter hereof; however, if a specific item or\nitems of Confidential Information are governed by another valid and binding written agreement between the parties\nhereto, such other written agreement shall govern in the event of conflict with this Agreement. No modification,\ntermination, extension, renewal or waiver of any provision of this Agreement shall be effective unless in writing and\nsigned by an authorized representative of each party. AGREED TO AND ACCEPTED BY: INNOVEDA, INC.\nMENTOR GRAPHICS CORPORATION By /s/ Peter T. Johnson By /s/ Yvonne Lawson -------------------------------------\n-- -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - Title Chief Legal Officer Title Associate General Counsel ----------------------------------- -------\n-- -- - -- - -- - -- - -- - -- - -- Date 10/5/01 Date 10/5/01 ------------------------------------ ------------------------------- 2	EX-99.(D)(1) 12 £81012tex99-d1.txt EXHIBIT 99.(D)(1) Exhibit (d)(1) MUTUAL NON-DISCLOSURE\nAGREEMENT This Non-Disclosure Agreement (this "Agreement") is made as of October 5, 2001 by and between\nInnoveda, Inc., having a principal place of business at 293 Boston Post Road West, Marlboro, Massachusetts 01752\n("Innoveda") and Mentor Graphics Corporation having a principal place of business at 8005 S.W. Boeckman Road,\nWilsonville, Oregon 97070 (the "Company"). In the course of dealings between Innoveda and Company, either party\nmay learn or receive from the other party "Confidential Information" (as that term is later defined in this Agreement) for\nthe purpose of considering various business relationships between Company and Innoveda. Company and Innoveda\ndesire to establish and set forth each party's obligations with respect to the other party's Confidential Information. In\nconsideration of the foregoing, Company and Innoveda agree as follows: 1. The term "Confidential Information" shall\nmean any and all data, know-how, trade secrets, software, technology, intellectual property, financial information,\nproduct plans, marketing plans, documentation and other information which is related to the products, technology,\nintellectual property or business of either party and which either party learns or receives from the other party, except that\nwhich the receiving party can establish: (1) was, on the date of this Agreement, generally known to the public; or (2)\nbecame generally known to the public after the date of this Agreement other than as a result of the act or omission of the\nreceiving party or such party's directors, officers, partners or employees; or (3) was rightfully known to the receiving\nparty prior to learning or receiving same from the other party; or (4) is or was disclosed by the disclosing party to third\nparties generally without restrictions on use and disclosure; or (5) the receiving party lawfully received from a third party\nwithout that third party's breach of agreement or obligation of trust; or (6) was independently developed by the receiving\nparty without the use of the other party's Confidential Information; or (7) is not disclosed to the receiving party in\ntangible form and conspicuously labeled as "confidential," "proprietary" or some similar designation, or, if disclosed\norally, is not stated to be confidential at the time of disclosure and summarized in writing within fifteen days after\ndisclosure and conspicuously labeled as confidential or some similar designation. 2. Each party considers all of its\nConfidential Information to be confidential and proprietary. All of the disclosing party's Confidential Information shall at\nall times, and throughout the world, remain the property of the disclosing party, exclusively, and all applicable rights in\npatents, copyrights and trade secrets, and all other intellectual property rights, shall remain in the disclosing party,\nexclusively. 3. The receiving party shall not directly or indirectly use any of the disclosing party's Confidential\nInformation for any purpose, except for the purpose set forth above. 4. The receiving party shall not disclose, or permit\naccess to, any portion of the other party's Confidential Information to any person except if: (1) such person is an\nemployee or consultant of the receiving party and has a need to know the Confidential Information for the purpose set\nforth above; and (2) such person is legally bound by a written contract to comply with the provisions of this Agreement.\nThe receiving party shall use the same degree of care that the receiving party uses with respect to its own information of\na similar nature, but in any event reasonable care, to prevent disclosure of the other party's Confidential Information.\nProvided, however, Confidential Information of the disclosing party may be disclosed by the receiving party as required\nby applicable law or court order but only if prior to any such disclosure, such party shall, to the extent permitted by\napplicable law, first give the other party a reasonable opportunity to review the proposed disclosure and to comment\nthereon and to provide for the protection of the Confidential Information. 5. This Agreement shall be effective as of the\ndate first written above and shall continue until either party terminates this Agreement upon ten days prior written notice\nto the other party. Each party's obligations with respect to each item of Confidential Information which it learns or\nreceives from the other party prior to the date of termination of this Agreement shall terminate five years after the date of\ntermination of this Agreement. Promptly after termination of this Agreement, each party shall return to the other party all\nof the other party's Confidential Information in tangible form, which is in its possession at the time of termination. 6.\nThis Agreement is the complete and exclusive statement of the agreement between the parties and supersedes all prior\nwritten and oral communications and agreements relating to the subject matter hereof; however, if a specific item or\nitems of Confidential Information are governed by another valid and binding written agreement between the parties\nhereto, such other written agreement shall govern in the event of conflict with this Agreement. No modification,\ntermination, extension, renewal or waiver of any provision of this Agreement shall be effective unless in writing and\nsigned by an authorized representative of each party. AGREED TO AND ACCEPTED BY: INNOVEDA, INC.\nMENTOR GRAPHICS CORPORATION By /s/ Peter T. Johnson By /s/ Yvonne Lawson -------=-===-=mmmmmmmmmmmmmmeomean\n-------------------------------- Title Chief Legal Officer Title Associate General Counsel --------=====-mmmmmmmmmmmmmmmeee eeee\n---------------------- Date 10/5/01 Date 10/5/01 =-mmnmmmmmmmm e e e e e )	EX-99.(D)(1) 12 f81012tex99-d1.tx EXHIBIT 99.(D)(1) Exhibit (d)(1) MUTUAL NON-DISCLOSURE\nAGREEMENT This Non-Disclosure Agreement (this "Agreement") is made as of October 5, 2001 by and between\nInnoveda, Inc., having a principal place of business at 293 Boston Post Road West, Marlboro, Massachusetts 01752\n("Innoveda") and Mentor Graphics Corporation having a principal place of business at 8005 S.W. Boeckman Road,\nWilsonville, Oregon 97070 (the "Company"). In the course of dealings between Innoveda and Company, either party\nmay learn or receive from the other party "Confidential Information" (as that term is later defined in this Agreement) for\nthe purpose of considering various business relationships between Company and Innoveda. Company and Innoveda\ndesire to establish and set forth each party's obligations with respect to the other party's Confidential Information. In\nconsideration of the foregoing, Company and Innoveda agree as follows: 1. The term "Confidential Information" shall\nmean any and all data, know-how, trade secrets, software, technology, intellectual property, financial information\nproduct plans, marketing plans, documentation and other information which is related to the products, technology,\nintellectual property or business of either party and which either party learns or receives from the other party, except that\nwhich\nthe\nreceiving\nparty\ncan\nestablish:\n(1)\nwas,\non\nthe\ndate\nof\nthis\nAgreement,\ngenerally\nknown\nto\nthe\npublic;\nor\n(2)\nbecame generally known to the public after the date of this Agreement other than as a result of the act or omission of the\nreceiving party or such party's directors, officers, partners or employees; or (3) was rightfully known to the receiving\nparty prior to learning or receiving same from the other party; or (4) is or was disclosed by the disclosing party to third\nparties generally without restrictions on use and disclosure; or (5) the receiving party lawfully received from a third party\nwithout that third party's breach of agreement or obligation of trust; or (6) was independently developed by the receiving\nparty without the use of the other party's Confidential Information; or (7) is not disclosed to the receiving party\nin\ntangible form and conspicuously labeled as "confidential," "proprietary" or some similar designation, or, if disclosed\norally, is not stated to be confidential at the time of disclosure and summarized in writing within fifteen days after\ndisclosure and conspicuously labeled as confidential or some similar designation. 2. Each party considers all of its\nConfidential Information to be confidential and proprietary. All of the disclosing party's Confidential Information shall at\nall times, and throughout the world, remain the property of the disclosing party, exclusively, and all applicable rights in\npatents, copyrights and trade secrets, and all other intellectual property rights, shall remain in the disclosing party,\nexclusively. 3. The receiving party shall not directly or indirectly use any of the disclosing party's Confidential\nInformation for any purpose, except for the purpose set forth above. 4. The receiving party shall not disclose, or permit\naccess to, any portion of the other party's Confidential Information to any person except if: (1) such person is an\nemployee or consultant of the receiving party and has a need to know the Confidential Information for the purpose set\nforth above; and (2) such person is legally bound by a written contract to comply with the provisions of this Agreement.\nThe\nreceiving\nparty\nshall\nuse\nthe\nsame\ndegree\nof\ncare\nthat\nthe\nreceiving\nparty\nuses\nwith\nrespect\nto\nits\nown\ninformation\nof\na similar nature, but in any event reasonable care, to prevent disclosure of the other party's Confidential Information.\nProvided, however, Confidential Information of the disclosing party may be disclosed by the receiving party as required\nby applicable law or court order but only if prior to any such disclosure, such party shall, to the extent permitted by\napplicable law, first give the other party a reasonable opportunity to review the proposed disclosure and to comment\nthereon and to provide for the protection of the Confidential Information. 5. This Agreement shall be effective as of the\ndate first written above and shall continue until either party terminates this Agreement upon ten days prior written notice\nto the other party. Each party's obligations with respect to each item of Confidential Information which it learns or\nreceives from the other party prior to the date of termination of this Agreement shall terminate five years after the date of\ntermination of this Agreement. Promptly after termination of this Agreement, each party shall return to the other party all\nof the other party's Confidential Information in tangible form, which is in its possession at the time of termination. 6.\nThis Agreement is the complete and exclusive statement of the agreement between the parties and supersedes all prior\nwritten and oral communications and agreements relating to the subject matter hereof; however, if a specific item or\nitems of Confidential Information are governed by another valid and binding written agreement between the parties\nhereto, such other written agreement shall govern in the event of conflict with this Agreement. No modification,\ntermination, extension, renewal or waiver of any provision of this Agreement shall be effective unless in writing and\nsigned by an authorized representative of each party. AGREED TO AND ACCEPTED BY: INNOVEDA, INC.\nMENTOR GRAPHICS CORPORATION By /s/ Peter T. Johnson By /s/ Yvonne Lawson\nTitle Chief Legal Officer Title Associate General Counsel\nDate 10/5/01 Date 10/5/01\n2	EX-99.(D)(1) 12 f81012tex99-d1.txt EXHIBIT 99.(D)(1) Exhibit (d)(1) MUTUAL NON-DISCLOSURE\nAGREEMENT This Non-Disclosure Agreement (this "Agreement") is made as of October 5, 2001 by and between\nInnoveda, Inc., having a principal place of business at 293 Boston Post Road West, Marlboro, Massachusetts 01752\n("Innoveda") and Mentor Graphics Corporation having a principal place of business at 8005 S.W. Boeckman Road,\nWilsonville, Oregon 97070 (the "Company"). In the course of dealings between Innoveda and Company, either party\nmay learn or receive from the other party "Confidential Information" (as that term is later defined in this Agreement) for\nthe purpose of considering various business relationships between Company and Innoveda. Company and Innoveda\ndesire to establish and set forth each party's obligations with respect to the other party's Confidential Information. In\nconsideration of the foregoing, Company and Innoveda agree as follows: 1. The term "Confidential Information" shall\nmean any and all data, know-how, trade secrets, software, technology, intellectual property, financial information,\nproduct plans, marketing plans, documentation and other information which is related to the products, technology,\nintellectual property or business of either party and which either party learns or receives from the other party, except that\nwhich the receiving party can establish: (1) was, on the date of this Agreement, generally known to the public; or (2)\nbecame generally known to the public after the date of this Agreement other than as a result of the act or omission of the\nreceiving party or such party's directors, officers, partners or employees; or (3) was rightfully known to the receiving\nparty prior to learning or receiving same from the other party; or (4) is or was disclosed by the disclosing party to third\nparties generally without restrictions on use and disclosure; or (5) the receiving party lawfully received from a third party\nwithout that third party's breach of agreement or obligation of trust; or (6) was independently developed by the receiving\nparty without the use of the other party's Confidential Information; or (7) is not disclosed to the receiving party in\ntangible form and conspicuously labeled as "confidential," "proprietary" or some similar designation, or, if disclosed\norally, is not stated to be confidential at the time of disclosure and summarized in writing within fifteen days after\ndisclosure and conspicuously labeled as confidential or some similar designation. 2. Each party considers all of its\nConfidential Information to be confidential and proprietary. All of the disclosing party's Confidential Information shall at\nall times, and throughout the world, remain the property of the disclosing party, exclusively, and all applicable rights in\npatents, copyrights and trade secrets, and all other intellectual property rights, shall remain in the disclosing party,\nexclusively. 3. The receiving party shall not directly or indirectly use any of the disclosing party's Confidential\nInformation for any purpose, except for the purpose set forth above. 4. The receiving party shall not disclose, or permit\naccess to, any portion of the other party's Confidential Information to any person except if: (1) such person is an\nemployee or consultant of the receiving party and has a need to know the Confidential Information for the purpose set\nforth above; and (2) such person is legally bound by a written contract to comply with the provisions of this Agreement.\nThe receiving party shall use the same degree of care that the receiving party uses with respect to its own information of\na similar nature, but in any event reasonable care, to prevent disclosure of the other party's Confidential Information.\nProvided, however, Confidential Information of the disclosing party may be disclosed by the receiving party as required\nby applicable law or court order but only if prior to any such disclosure, such party shall, to the extent permitted by\napplicable law, first give the other party a reasonable opportunity to review the proposed disclosure and to comment\nthereon and to provide for the protection of the Confidential Information. 5. This Agreement shall be effective as of the\ndate first written above and shall continue until either party terminates this Agreement upon ten days prior written notice\nto the other party. Each party's obligations with respect to each item of Confidential Information which it learns or\nreceives from the other party prior to the date of termination of this Agreement shall terminate five years after the date of\ntermination of this Agreement. Promptly after termination of this Agreement, each party shall return to the other party all\nof the other party's Confidential Information in tangible form, which is in its possession at the time of termination. 6.\nThis Agreement is the complete and exclusive statement of the agreement between the parties and supersedes all prior\nwritten and oral communications and agreements relating to the subject matter hereof; however, if a specific item or\nitems of Confidential Information are governed by another valid and binding written agreement between the parties\nhereto, such other written agreement shall govern in the event of conflict with this Agreement. No modification,\ntermination, extension, renewal or waiver of any provision of this Agreement shall be effective unless in writing and\nsigned by an authorized representative of each party. AGREED TO AND ACCEPTED BY: INNOVEDA, INC.\nMENTOR GRAPHICS CORPORATION By /s/ Peter T. Johnson By /s/ Yvonne Lawson -------------------------------------\n-- -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - Title Chief Legal Officer Title Associate General Counsel ----------------------------------- -------\n-- -- - -- - -- - -- - -- - -- - -- Date 10/5/01 Date 10/5/01 ------------------------------------ ------------------------------- 2
a936f23f68928e47d1a2372391080b3a.pdf	effective_date jurisdiction party term	NON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this “Agreement”) is made effective as of April 23, 2007 by and between ADA-ES, Inc. (“ADA”)\nand Industrial Furnace Company (the “Company”). In connection with discussions between ADA and the Company (individually, a “Party” and\ncollectively, the “Parties”) regarding a proposed transaction between them (the “Proposed Transaction”), each of the Parties may receive from time\nto time hereafter Confidential Information from the other. The Parties agree as follows:\n1. Confidential Information.\n(a) For purposes hereof “Confidential Information” shall mean any and all materials and information which any Party makes available to the\nother Party or which has or may come into possession of any Party in connection with the Proposed Transaction and which is labeled or marked\nconfidential, including, without limitation, the following: information relating to the business, financial condition, operations, assets and liabilities of\na Party or its affiliates; business plans; software programs and enhancements, upgrades and modifications thereof; user and other manuals;\ndocuments; specifications; financial reports, statements and projections; client lists, marketing material, data, data listing, and information; project\nplans and case studies; references; and all copies, summaries, outlines or other representations of any of the foregoing.\n(b) The Confidential Information will be used by the Parties solely for the purpose of evaluating the Proposed Transaction.\n(c) Each Party hereby acknowledges that the Confidential Information obtained by it is valuable and proprietary trade secret information of the\nother Party, the disclosure of which would be harmful to such other Party. Each Party agrees to hold such Confidential Information in the strictest\nconfidence and not to disclose same or release it to any other person except to its Representatives (as defined below) who need to know the\ninformation for purposes of evaluating the Proposed Transaction and as otherwise permitted hereunder. It is further agreed that each Party shall take\nreasonable measures to ensure that its agents, representatives, officers, directors, employees, consultants, agencies or potential financial or equity\npartners (collectively, “Representatives”) do not disclose such Confidential Information, except as permitted hereunder.\n(d) No Party will reverse engineer, disassemble, decompile or copy the Confidential Information except as permitted hereunder. No Party shall,\ndirectly or indirectly ( including in the conduct of its business), use, or permit to be used, the Confidential Information obtained from any other Party\nto that Party’s detriment, whether or not the former Party benefits from such detrimental use.\n(e) The term person as used in this Agreement shall be broadly interpreted to include, without limitation, the media, any governmental agency,\ndepartment or other body or instrumentality and any corporation, partnership, limited liability company, association, group, individual or other entity.\n-1-\nPage A11-5\n2. Excluded Information. The term “Confidential Information” does not include any Confidential Information disclosed by a party which (a) at the\ntime of disclosure to the receiving Party or thereafter is generally available to and known by the public (other than as a result of a disclosure in\nviolation of this Agreement), (b) was available to such Party on a non-confidential basis from a source other than a Party, provided that such a source\nis not and was not bound by a confidentiality agreement with such Party, or (c) has been independently acquired or developed by such Party without\nviolating any of the obligations under this Agreement. Confidential Information shall not be deemed to fall within the exception of subparts (a) to (c)\nabove merely because it is included in a document which also includes information that does fall within such exceptions.\n3. Other Disclosures. In addition to the foregoing, each Party will not disclose to any person (other than to such party’s Representatives), without the\nprior written consent of the other party, that (a) any investigations, discussions or negotiations are taking place concerning the Proposed Transaction,\n(b) the Confidential Information has been exchanged, (c) a party has expressed an interest or submitted an indication of interest in connection with\nthe Proposed Transaction, or (d) any of the terms, conditions or other facts with respect to such indication of interest of the Proposed Transaction,\nincluding the status thereof, other than the fact that a Party is no longer pursuing the Proposed Transaction in the event such Party decides not to\npursue the Proposed Transaction. Nothing contained herein shall in any way prohibit any of ADA’s direct or indirect subsidiaries or their respective\nRepresentatives, from providing any information, data and/or advice to, or entering into any transactions with, third parties which may involve the\nassets which are the subject of the Proposed Transaction; provided, that, such subsidiaries and its Representatives do not use or disclose any\nConfidential Information of the Company or its affiliates that is prohibited from disclosure hereby.\n4. Legally Compelled Disclosures. In the event that a Party becomes legally compelled (by deposition, interrogatory, request for documents, order,\nsubpoena, civil investigative demand or similar process issued by a court of competent jurisdiction or by a government body) to disclose any of the\nConfidential Information, prompt prior written notice of any such requirement shall be provided to the other Party so that such Party may seek a\nprotective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. In the event that such protective order or\nother remedy is not obtained, and irrespective of whether or not compliance with the provisions hereof is waived, only that portion of the\nConfidential Information which the Party subject to such legal compulsion is advised in writing by its counsel is legally required to be disclosed\nshall be disclosed and reasonable efforts shall be made to obtain assurance that confidential treatment will be accorded such Confidential\nInformation.\n5. Return of Information. If so requested by a party, (i) all Confidential Information shall be returned to the originating Party or destroyed by the\nreceiving Party, at the receiving Party’s option, and (ii) each Party shall destroy all additional copies of the other Party’s Confidential Information in\nits possession and all copies of any analyses, compilations, studies or other documents prepared, used or created containing or reflecting any\nConfidential Information.\n6. Representations. The originating Party hereby represents and warrants that it has the right and authority to disclose the Confidential Information\ndisclosed or to be disclosed by it, pursuant to, and for the purposes of, this Agreement and shall indemnify and hold the receiving\n-2-\nPage A11-6\nParty harmless for any liability incurred by it to third parties resulting from the breach of such representation and warranty. Each Party hereby\nacknowledges that although each Party shall endeavor to include in the Confidential Information provided by such Party all information known to\nsuch Party which such Party believes to be relevant for the purpose of the other Party’s investigation, unless\notherwise stated in writing, neither Party has made or shall make any representation or warranty, express or implied, as to the accuracy or\ncompleteness of the Confidential Information.\n7. Equitable Relief: Jurisdiction. Each Party agrees that a Party shall be entitled to seek equitable relief, including without limitation, injunctive relief\nand specific performance, in the event of any breach of the provisions of this Agreement by the other Party, in addition to all other remedies\navailable at law or in equity. Each Party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the\nState of Colorado or of the United States of America located in the State of Colorado for any actions, suits or proceedings arising out of or relating to\nthis Agreement and each Party hereby irrevocably and unconditionally\nwaives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement, in such courts, and hereby further\nirrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any\nsuch court has been brought in an inconvenient forum. The Parties irrevocably waive any right to a trial by jury for any claims or counterclaims\narising hereunder.\n8. Miscellaneous. The Parties understand and agree that no contract or agreement providing for the entering into of the Proposed Transaction shall be\ndeemed to exist between the Parties as a result of the execution and delivery of this Agreement or in connection with the exchange of the\nConfidential Information unless and until a further written agreement has been executed and delivered. This Agreement may be modified or waived\nonly by a separate writing signed by each of the Parties. The Agreement contains the entire agreement between the Parties regarding its subject\nmatter and supersedes all prior agreements, understanding, arrangements and\ndiscussions between the Parties regarding such subject matter. It is further understood and agreed that no failure or delay by any Party in exercising\nany right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further\nexercise thereof or the exercise of any right, power or privilege hereunder. Each Party agrees that all of the provisions of this Agreement will apply\nto all affiliates of the Parties, as such term may be broadly interpreted, to the same extent as if they were signatories to this Agreement. This\nAgreement is for benefit of the Parties and their successors in interest. This Agreement may be executed in two or more counterparts, with each\ncounterpart constituting a single original. This Agreement shall terminate upon the sooner to occur of the execution by the Parties of a definitive\nagreement in connection with a Proposed Transaction and two (2) years from the date hereof.\n-3-\nPage A11-7\nIN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of the date first above written.\nADA-ES, Inc.\nBy: /s/ Richard Schlager\nName: Richard Schlager\nTitle: Vice President\nIndustrial Furnace Company, Inc.\nBy: /s/ William A. Mansfield\nName: William A. Mansfield\nTitle: V.P. - Engineering\n-4-\nPage A11-8	NON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this “Agreement”) is made effective as of April 23, 2007 by and between ADA-ES, Inc. (“ADA”)\nand Industrial Furnace Company (the “Company”). In connection with discussions between ADA and the Company (individually, a “Party” and\ncollectively, the “Parties”) regarding a proposed transaction between them (the “Proposed Transaction”), each of the Parties may receive from time\nto time hereafter Confidential Information from the other. The Parties agree as follows:\n1. Confidential Information.\n(a) For purposes hereof “Confidential Information” shall mean any and all materials and information which any Party makes available to the\nother Party or which has or may come into possession of any Party in connection with the Proposed Transaction and which is labeled or marked\nconfidential, including, without limitation, the following: information relating to the business, financial condition, operations, assets and liabilities of\na Party or its affiliates; business plans; software programs and enhancements, upgrades and modifications thereof; user and other manuals;\ndocuments; specifications; financial reports, statements and projections; client lists, marketing material, data, data listing, and information; project\nplans and case studies; references; and all copies, summaries, outlines or other representations of any of the foregoing.\n(b) The Confidential Information will be used by the Parties solely for the purpose of evaluating the Proposed Transaction.\n(c) Each Party hereby acknowledges that the Confidential Information obtained by it is valuable and proprietary trade secret information of the\nother Party, the disclosure of which would be harmful to such other Party. Each Party agrees to hold such Confidential Information in the strictest\nconfidence and not to disclose same or release it to any other person except to its Representatives (as defined below) who need to know the\ninformation for purposes of evaluating the Proposed Transaction and as otherwise permitted hereunder. It is further agreed that each Party shall take\nreasonable measures to ensure that its agents, representatives, officers, directors, employees, consultants, agencies or potential financial or equity\npartners (collectively, “Representatives”) do not disclose such Confidential Information, except as permitted hereunder.\n(d) No Party will reverse engineer, disassemble, decompile or copy the Confidential Information except as permitted hereunder. No Party shall,\ndirectly or indirectly (including in the conduct of its business), use, or permit to be used, the Confidential Information obtained from any other Party\nto that Party’s detriment, whether or not the former Party benefits from such detrimental use.\n(e) The term person as used in this Agreement shall be broadly interpreted to include, without limitation, the media, any governmental agency,\ndepartment or other body or instrumentality and any corporation, partnership, limited liability company, association, group, individual or other entity.\n-1-\nPage A11-5\n2. Excluded Information. The term “Confidential Information” does not include any Confidential Information disclosed by a party which (a) at the\ntime of disclosure to the receiving Party or thereafter is generally available to and known by the public (other than as a result of a disclosure in\nviolation of this Agreement), (b) was available to such Party on a non-confidential basis from a source other than a Party, provided that such a source\nis not and was not bound by a confidentiality agreement with such Party, or (c) has been independently acquired or developed by such Party without\nviolating any of the obligations under this Agreement. Confidential Information shall not be deemed to fall within the exception of subparts (a) to (c)\nabove merely because it is included in a document which also includes information that does fall within such exceptions.\n3. Other Disclosures. In addition to the foregoing, each Party will not disclose to any person (other than to such party’s Representatives), without the\nprior written consent of the other party, that (a) any investigations, discussions or negotiations are taking place concerning the Proposed Transaction,\n(b) the Confidential Information has been exchanged, (c) a party has expressed an interest or submitted an indication of interest in connection with\nthe Proposed Transaction, or (d) any of the terms, conditions or other facts with respect to such indication of interest of the Proposed Transaction,\nincluding the status thereof, other than the fact that a Party is no longer pursuing the Proposed Transaction in the event such Party decides not to\npursue the Proposed Transaction. Nothing contained herein shall in any way prohibit any of ADA’s direct or indirect subsidiaries or their respective\nRepresentatives, from providing any information, data and/or advice to, or entering into any transactions with, third parties which may involve the\nassets which are the subject of the Proposed Transaction; provided, that, such subsidiaries and its Representatives do not use or disclose any\nConfidential Information of the Company or its affiliates that is prohibited from disclosure hereby.\n4. Legally Compelled Disclosures. In the event that a Party becomes legally compelled (by deposition, interrogatory, request for documents, order,\nsubpoena, civil investigative demand or similar process issued by a court of competent jurisdiction or by a government body) to disclose any of the\nConfidential Information, prompt prior written notice of any such requirement shall be provided to the other Party so that such Party may seek a\nprotective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. In the event that such protective order or\nother remedy is not obtained, and irrespective of whether or not compliance with the provisions hereof is waived, only that portion of the\nConfidential Information which the Party subject to such legal compulsion is advised in writing by its counsel is legally required to be disclosed\nshall be disclosed and reasonable efforts shall be made to obtain assurance that confidential treatment will be accorded such Confidential\nInformation.\n5. Return of Information. If so requested by a party, (i) all Confidential Information shall be returned to the originating Party or destroyed by the\nreceiving Party, at the receiving Party’s option, and (ii) each Party shall destroy all additional copies of the other Party’s Confidential Information in\nits possession and all copies of any analyses, compilations, studies or other documents prepared, used or created containing or reflecting any\nConfidential Information.\n6. Representations. The originating Party hereby represents and warrants that it has the right and authority to disclose the Confidential Information\ndisclosed or to be disclosed by it, pursuant to, and for the purposes of, this Agreement and shall indemnify and hold the receiving\n_2-\nPage A11-6\nParty harmless for any liability incurred by it to third parties resulting from the breach of such representation and warranty. Each Party hereby\nacknowledges that although each Party shall endeavor to include in the Confidential Information provided by such Party all information known to\nsuch Party which such Party believes to be relevant for the purpose of the other Party’s investigation, unless\notherwise stated in writing, neither Party has made or shall make any representation or warranty, express or implied, as to the accuracy or\ncompleteness of the Confidential Information.\n7. Equitable Relief: Jurisdiction. Each Party agrees that a Party shall be entitled to seek equitable relief, including without limitation, injunctive relief\nand specific performance, in the event of any breach of the provisions of this Agreement by the other Party, in addition to all other remedies\navailable at law or in equity. Each Party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the\nState of Colorado or of the United States of America located in the State of Colorado for any actions, suits or proceedings arising out of or relating to\nthis Agreement and each Party hereby irrevocably and unconditionally\nwaives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement, in such courts, and hereby further\nirrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any\nsuch court has been brought in an inconvenient forum. The Parties irrevocably waive any right to a trial by jury for any claims or counterclaims\narising hereunder.\n8. Miscellaneous. The Parties understand and agree that no contract or agreement providing for the entering into of the Proposed Transaction shall be\ndeemed to exist between the Parties as a result of the execution and delivery of this Agreement or in connection with the exchange of the\nConfidential Information unless and until a further written agreement has been executed and delivered. This Agreement may be modified or waived\nonly by a separate writing signed by each of the Parties. The Agreement contains the entire agreement between the Parties regarding its subject\nmatter and supersedes all prior agreements, understanding, arrangements and\ndiscussions between the Parties regarding such subject matter. It is further understood and agreed that no failure or delay by any Party in exercising\nany right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further\nexercise thereof or the exercise of any right, power or privilege hereunder. Each Party agrees that all of the provisions of this Agreement will apply\nto all affiliates of the Parties, as such term may be broadly interpreted, to the same extent as if they were signatories to this Agreement. This\nAgreement is for benefit of the Parties and their successors in interest. This Agreement may be executed in two or more counterparts, with each\ncounterpart constituting a single original. This Agreement shall terminate upon the sooner to occur of the execution by the Parties of a definitive\nagreement in connection with a Proposed Transaction and two (2) years from the date hereof.\n_3-\nPage A11-7\nIN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of the date first above written. Page A11-8\nADA-ES, Inc.\nBy:  /s/Richard Schlager\nName: Richard Schlager\nTitle:  Vice President\nIndustrial Furnace Company, Inc.\nBy:  /s/William A. Mansfield\nName: William A. Mansfield\nTitle: V.P. - Engineering	NON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this "Agreement") is made effective as of April 23, 2007 by and between ADA-ES, Inc. ("ADA")\nand Industrial Furnace Company (the "Company"). In connection with discussions between ADA and the Company (individually, a "Party" and\ncollectively, the "Parties") regarding a proposed transaction between them (the "Proposed Transaction"), each of the Parties may receive from time\nto time hereafter Confidential Information from the other. The Parties agree as follows:\n1. Confidential Information.\n(a) For purposes hereof "Confidential Information" shall mean any and all materials and information which any Party makes available to the\nother Party or which has or may come into possession of any Party in connection with the Proposed Transaction and which is labeled or marked\nconfidential, including, without limitation, the following: information relating to the business, financial condition, operations, assets and liabilities of\na Party or its affiliates; business plans; software programs and enhancements, upgrades and modifications thereof; user and other manuals;\ndocuments; specifications; financial reports, statements and projections; client lists, marketing material, data, data listing, and information; project\nplans and case studies; references; and all copies, summaries, outlines or other representations of any of the foregoing.\n(b) The Confidential Information will be used by the Parties solely for the purpose of evaluating the Proposed Transaction.\n(c) Each Party hereby acknowledges that the Confidential Information obtained by it is valuable and proprietary trade secret information of the\nother Party, the disclosure of which would be harmful to such other Party. Each Party agrees to hold such Confidential Information in the strictest\nconfidence and not to disclose same or release it to any other person except to its Representatives (as defined below) who need to know the\ninformation for purposes of evaluating the Proposed Transaction and as otherwise permitted hereunder. It is further agreed that each Party shall take\nreasonable measures to ensure that its agents, representatives, officers, directors, employees, consultants, agencies or potential financial or equity\npartners (collectively, "Representatives" do not disclose such Confidentia Information, except as permitted hereunder.\n(d) No Party will reverse engineer, disassemble, decompile or copy the Confidential Information except as permitted hereunder. No Party\nshall,\ndirectly or indirectly C including in the conduct of its business), use, or permit to be used, the Confidential Information obtained from any other Party\nto that Party's detriment, whether or not the former Party benefits from such detrimental use.\n(e) The term person as used in this Agreement shall be broadly interpreted to include, without limitation, the media, any governmental agency,\ndepartment or other body or instrumentality and any corporation, partnership, limited liability company, association, group, individual or other entity.\n1\nPage A11-5\n2. Excluded Information. The term "Confidential Information" does not include any Confidential Information disclosed by a party which (a) at the\ntime of disclosure to the receiving Party or thereafter is generally available to and known by the public (other than as a result of a disclosure\nin\nviolation of this Agreement), (b) was available to such Party on a non-confidential basis from a source other than a Party, provided that such a source\nis not and was not bound by a confidentiality agreement with such Party, or (c) has been independently acquired or developed by such Party without\nviolating any of the obligations under this Agreement. Confidential Information shall not be deemed to fall within the exception of subparts (a) to (c)\nabove merely because it is included in a document which also includes information that does fall within such exceptions.\n3. Other Disclosures. In addition to the foregoing, each Party will not disclose to any person (other than to such party's Representatives), without the\nprior written consent of the other party, that (a) any investigations, discussions or negotiations are taking place concerning the Proposed Transaction,\n(b) the Confidential Information has been exchanged, (c) a party has expressed an interest or submitted an indication of interest in connection with\nthe Proposed Transaction, or (d) any of the terms, conditions or other facts with respect to such indication of interest of the Proposed Transaction,\nincluding the status thereof, other than the fact that a Party is no longer pursuing the Proposed Transaction in the event such Party decides not to\npursue the Proposed Transaction. Nothing contained herein shall in any way prohibit any of ADA's direct or indirect subsidiaries or their respective\nRepresentatives, from providing any information, data and/or advice to, or entering into any transactions with, third parties which may involve the\nassets which are the subject of the Proposed Transaction; provided, that, such subsidiaries and its Representatives do not use or disclose any\nConfidential Information of the Company or its affiliates that is prohibited from disclosure hereby.\n4. Legally. Compelled Disclosures. In the event that a Party becomes legally compelled (by deposition, interrogatory, request for documents, order,\nsubpoena, civil investigative demand or similar process issued by a court of competent jurisdiction or by a government body) to disclose any of the\nConfidential Information, prompt prior written notice of any such requirement shall be provided to the other Party so that such Party may seek a\nprotective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. In the event that such protective order\nor\nother remedy is not obtained, and irrespective of whether or not compliance with the provisions hereof is waived, only that portion of the\nConfidential Information which the Party subject to such legal compulsion is advised in writing by its counsel is legally required to be disclosed\nshall be disclosed and reasonable efforts shall be made to obtain assurance that confidential treatment will be accorded such Confidential\nInformation.\n5. Return of Information. If so requested by a party, (i) all Confidential Information shall be returned to the originating Party or destroyed by the\nreceiving Party, at the receiving Party's option, and (ii) each Party shall destroy all additional copies of the other Party's Confidential Information in\nits possession and all copies of any analyses, compilations, studies or other documents prepared, used or created containing or reflecting any\nConfidential Information.\n6. Representations. The originating Party hereby represents and warrants that it has the right and authority to disclose the Confidential Information\ndisclosed or to be disclosed by it, pursuant to, and for the purposes of, this Agreement and shall indemnify and hold the receiving\n2\nPage A11-6\nParty harmless for any liability incurred by it to third parties resulting from the breach of such representation and warranty. Each Party hereby\nacknowledges that although each Party shall endeavor to include in the Confidential Information provided by such Party all information known\nto\nsuch Party which such Party believes to be relevant for the purpose of the other Party's investigation, unless\notherwise stated in writing, neither Party has made or shall make any representation or warranty, express or implied, as to the accuracy or\ncompleteness of the Confidential Information.\n7. Equitable Relief: Jurisdiction. Each Party agrees that a Party shall be entitled to seek equitable relief, including without limitation, injunctive relief\nand specific performance, in the event of any breach of the provisions of this Agreement by the other Party, in addition to all other remedies\navailable at law or in equity. Each Party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the\nState of Colorado or of the United States of America located in the State of Colorado for any actions, suits or proceedings arising out of or relating to\nthis Agreement and each Party hereby irrevocably and unconditionally\nwaives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement, in such courts, and hereby further\nirrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any\nsuch court has been brought in an inconvenient forum. The Parties irrevocably waive any right to a trial by jury for any claims or counterclaims\narising hereunder.\n8.\nMiscellaneous. The Parties understand and agree that no contract or agreement providing for the entering into of the Proposed Transaction shall be\ndeemed to exist between the Parties as a result of the execution and delivery of this Agreement or in connection with the exchange of the\nConfidential Information unless and until a further written agreement has been executed and delivered. This Agreement may be modified or waived\nonly by a separate writing signed by each of the Parties. The Agreement contains the entire agreement between the Parties regarding its subject\nmatter and supersedes all prior agreements, understanding, arrangements and\ndiscussions between the Parties regarding such subject matter. It is further understood and agreed that no failure or delay by any Party in exercising\nany right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further\nexercise thereof or the exercise of any right, power or privilege hereunder. Each Party agrees that all of the provisions of this Agreement will apply\nto\nall affiliates of the Parties, as such term may be broadly interpreted, to the same extent as if they were signatories to this Agreement. This\nAgreement is for benefit of the Parties and their successors in interest. This Agreement may be executed in two or more counterparts, with each\ncounterpart constituting a single original. This Agreement shall terminate upon the sooner to occur of the execution by the Parties of a definitive\nagreement in connection with a Proposed Transaction and two (2) years from the date hereof.\n3\nPage A11-7\nIN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of the date first above written.\nADA-ES, Inc.\nBy:\n/s/ Richard Schlager\nName: Richard Schlager\nTitle: Vice President\nIndustrial Furnace Company, Inc.\nBy: /s/ William A. Mansfield\nName: William A. Mansfield\nTitle: V.P. - Engineering\n4 -\nPage A11-8	NON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this “Agreement”) is made effective as of April 23, 2007 by and between ADA-ES, Inc. (“ADA”)\nand Industrial Furnace Company (the “Company”). In connection with discussions between ADA and the Company (individually, a “Party” and\ncollectively, the “Parties”) regarding a proposed transaction between them (the “Proposed Transaction”), each of the Parties may receive from time\nto time hereafter Confidential Information from the other. The Parties agree as follows:\n1. Confidential Information.\n(a) For purposes hereof “Confidential Information” shall mean any and all materials and information which any Party makes available to the\nother Party or which has or may come into possession of any Party in connection with the Proposed Transaction and which is labeled or marked\nconfidential, including, without limitation, the following: information relating to the business, financial condition, operations, assets and liabilities of\na Party or its affiliates; business plans; software programs and enhancements, upgrades and modifications thereof; user and other manuals;\ndocuments; specifications; financial reports, statements and projections; client lists, marketing material, data, data listing, and information; project\nplans and case studies; references; and all copies, summaries, outlines or other representations of any of the foregoing.\n(b) The Confidential Information will be used by the Parties solely for the purpose of evaluating the Proposed Transaction.\n(c) Each Party hereby acknowledges that the Confidential Information obtained by it is valuable and proprietary trade secret information of the\nother Party, the disclosure of which would be harmful to such other Party. Each Party agrees to hold such Confidential Information in the strictest\nconfidence and not to disclose same or release it to any other person except to its Representatives (as defined below) who need to know the\ninformation for purposes of evaluating the Proposed Transaction and as otherwise permitted hereunder. It is further agreed that each Party shall take\nreasonable measures to ensure that its agents, representatives, officers, directors, employees, consultants, agencies or potential financial or equity\npartners (collectively, “Representatives”) do not disclose such Confidential Information, except as permitted hereunder.\n(d) No Party will reverse engineer, disassemble, decompile or copy the Confidential Information except as permitted hereunder. No Party shall,\ndirectly or indirectly ( including in the conduct of its business), use, or permit to be used, the Confidential Information obtained from any other Party\nto that Party’s detriment, whether or not the former Party benefits from such detrimental use.\n(e) The term person as used in this Agreement shall be broadly interpreted to include, without limitation, the media, any governmental agency,\ndepartment or other body or instrumentality and any corporation, partnership, limited liability company, association, group, individual or other entity.\n-1-\nPage A11-5\n2. Excluded Information. The term “Confidential Information” does not include any Confidential Information disclosed by a party which (a) at the\ntime of disclosure to the receiving Party or thereafter is generally available to and known by the public (other than as a result of a disclosure in\nviolation of this Agreement), (b) was available to such Party on a non-confidential basis from a source other than a Party, provided that such a source\nis not and was not bound by a confidentiality agreement with such Party, or (c) has been independently acquired or developed by such Party without\nviolating any of the obligations under this Agreement. Confidential Information shall not be deemed to fall within the exception of subparts (a) to (c)\nabove merely because it is included in a document which also includes information that does fall within such exceptions.\n3. Other Disclosures. In addition to the foregoing, each Party will not disclose to any person (other than to such party’s Representatives), without the\nprior written consent of the other party, that (a) any investigations, discussions or negotiations are taking place concerning the Proposed Transaction,\n(b) the Confidential Information has been exchanged, (c) a party has expressed an interest or submitted an indication of interest in connection with\nthe Proposed Transaction, or (d) any of the terms, conditions or other facts with respect to such indication of interest of the Proposed Transaction,\nincluding the status thereof, other than the fact that a Party is no longer pursuing the Proposed Transaction in the event such Party decides not to\npursue the Proposed Transaction. Nothing contained herein shall in any way prohibit any of ADA’s direct or indirect subsidiaries or their respective\nRepresentatives, from providing any information, data and/or advice to, or entering into any transactions with, third parties which may involve the\nassets which are the subject of the Proposed Transaction; provided, that, such subsidiaries and its Representatives do not use or disclose any\nConfidential Information of the Company or its affiliates that is prohibited from disclosure hereby.\n4. Legally Compelled Disclosures. In the event that a Party becomes legally compelled (by deposition, interrogatory, request for documents, order,\nsubpoena, civil investigative demand or similar process issued by a court of competent jurisdiction or by a government body) to disclose any of the\nConfidential Information, prompt prior written notice of any such requirement shall be provided to the other Party so that such Party may seek a\nprotective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. In the event that such protective order or\nother remedy is not obtained, and irrespective of whether or not compliance with the provisions hereof is waived, only that portion of the\nConfidential Information which the Party subject to such legal compulsion is advised in writing by its counsel is legally required to be disclosed\nshall be disclosed and reasonable efforts shall be made to obtain assurance that confidential treatment will be accorded such Confidential\nInformation.\n5. Return of Information. If so requested by a party, (i) all Confidential Information shall be returned to the originating Party or destroyed by the\nreceiving Party, at the receiving Party’s option, and (ii) each Party shall destroy all additional copies of the other Party’s Confidential Information in\nits possession and all copies of any analyses, compilations, studies or other documents prepared, used or created containing or reflecting any\nConfidential Information.\n6. Representations. The originating Party hereby represents and warrants that it has the right and authority to disclose the Confidential Information\ndisclosed or to be disclosed by it, pursuant to, and for the purposes of, this Agreement and shall indemnify and hold the receiving\n-2-\nPage A11-6\nParty harmless for any liability incurred by it to third parties resulting from the breach of such representation and warranty. Each Party hereby\nacknowledges that although each Party shall endeavor to include in the Confidential Information provided by such Party all information known to\nsuch Party which such Party believes to be relevant for the purpose of the other Party’s investigation, unless\notherwise stated in writing, neither Party has made or shall make any representation or warranty, express or implied, as to the accuracy or\ncompleteness of the Confidential Information.\n7. Equitable Relief: Jurisdiction. Each Party agrees that a Party shall be entitled to seek equitable relief, including without limitation, injunctive relief\nand specific performance, in the event of any breach of the provisions of this Agreement by the other Party, in addition to all other remedies\navailable at law or in equity. Each Party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the\nState of Colorado or of the United States of America located in the State of Colorado for any actions, suits or proceedings arising out of or relating to\nthis Agreement and each Party hereby irrevocably and unconditionally\nwaives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement, in such courts, and hereby further\nirrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any\nsuch court has been brought in an inconvenient forum. The Parties irrevocably waive any right to a trial by jury for any claims or counterclaims\narising hereunder.\n8. Miscellaneous. The Parties understand and agree that no contract or agreement providing for the entering into of the Proposed Transaction shall be\ndeemed to exist between the Parties as a result of the execution and delivery of this Agreement or in connection with the exchange of the\nConfidential Information unless and until a further written agreement has been executed and delivered. This Agreement may be modified or waived\nonly by a separate writing signed by each of the Parties. The Agreement contains the entire agreement between the Parties regarding its subject\nmatter and supersedes all prior agreements, understanding, arrangements and\ndiscussions between the Parties regarding such subject matter. It is further understood and agreed that no failure or delay by any Party in exercising\nany right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further\nexercise thereof or the exercise of any right, power or privilege hereunder. Each Party agrees that all of the provisions of this Agreement will apply\nto all affiliates of the Parties, as such term may be broadly interpreted, to the same extent as if they were signatories to this Agreement. This\nAgreement is for benefit of the Parties and their successors in interest. This Agreement may be executed in two or more counterparts, with each\ncounterpart constituting a single original. This Agreement shall terminate upon the sooner to occur of the execution by the Parties of a definitive\nagreement in connection with a Proposed Transaction and two (2) years from the date hereof.\n-3-\nPage A11-7\nIN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of the date first above written.\nADA-ES, Inc.\nBy: /s/ Richard Schlager\nName: Richard Schlager\nTitle: Vice President\nIndustrial Furnace Company, Inc.\nBy: /s/ William A. Mansfield\nName: William A. Mansfield\nTitle: V.P. - Engineering\n-4-\nPage A11-8
aa1aff1f6643fbe404819e99cff4ca3c.pdf	effective_date jurisdiction party term	EX-10 .3 2 exhibit_10 -3.htm NON-COMPETITION/NON-SOLICITATION/NON-DISCLOSURE AGREEMENT\nNON-COMPETITION, NON-SOLICITATION, AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION, AND NON-DISCLOSURE AGREEMENT (“Agreement”) is entered\ninto between Giant Beverage, Inc. (“Giant”), Anthony Iemmiti, and Frank Iemmiti on April 26, 2018 (the “Effective Date”).\nWHEREAS, Life on Earth, Inc. (the “Company”) has entered into and closed on a Purchase Agreement with Anthony\nIemmiti and Frank Iemmiti as the Sellers in connection with the sale of Giant to the Company for various consideration\n(the “Purchase Agreement”).\nWHEREAS, Anthony Iemmiti and Frank Iemmiti, were the two and sole owners of Giant prior to the Company’s\npurchase of Giant and have access to: (a) Giant’s trade secrets and other valuable confidential business information;\nand (ii) substantial relationships with Giant’s existing and prospective customers and clients.\nWHEREAS, Giant, Anthony Iemmiti and Frank Iemmiti desire to enter into this Agreement to memorialize the terms and\nconditions of this Agreement.\nNOW, THEREFORE, in consideration of the terms to the Purchase Agreement and addendums thereto, Iemmiti hereby\nagrees to the following.\nSECTION 1\nTERM OF AGREEMENT\nThis Agreement shall remain in effect for a period of 2 years after the Effective Date.\nSECTION 2\nAGREEMENT NOT TO COMPETE\nAnthony Iemmiti and Frank Iemmiti agree that during the term of this Agreement they shall not become employed,\ndirectly or indirectly, or form any business, whether as an independent contractor, consultant, or otherwise, with any\nsimilar business to Giant located in New York City, which includes the five New York City boroughs of Manhattan,\nBrooklyn, Queens, State Island and the Bronx, and Rockland, Westchester, Nassau and Suffolk counties.\nSECTION 3\nAGREEMENT NOT TO SOLICIT\nAnthony Iemmiti and Frank Iemmiti further agree that during the term of this Agreement, they shall not, directly or\nindirectly, solicit the business of any customer of Giant, regardless of whether they were responsible for generating such\ncustomer’s business for Giant. In addition, Anthony Iemmiti and Frank Iemmiti agree that during the term of this\nAgreement and this provision, they shall not directly or indirectly solicit the employment of any Giant employee.\nSECTION 4\nAGREEMENT NOT TO DISCLOSE\nDuring and after the term of this Agreement, Anthony Iemmiti and Frank Iemmiti shall use their best efforts and utmost\ndiligence to guard and protect all of the Giant’s trade secrets and any other confidential business information and shall\nnot, either during or after the term of this Agreement, for any reason, use in any capacity, or divulge or disclose in any\nmanner, to any person or entity, the identity of Giant’s customers, methods of operation, marketing or promotional\nmethods, processes, techniques, systems, formulas, programs, trade secrets, or other confidential information relating\nto Giant’s business. Upon termination of Iemmiti’s position as General Manager, for any reason, Frank Iemmiti shall\nimmediately return and deliver to Giant, all records and papers and all materials which bear trade secrets or other\nconfidential business information.\nSECTION 5\nREPRESENTATIONS AND ACKNOWLEDGMENTS OF ANTHONY IEMMITI AND FRANK IEMMITI\nAnthony Iemmiti and Frank Iemmiti hereby agree that the duration of the anti-competitive covenants set forth in Section\n2 of this Agreement are reasonable, and that their geographic scope is not unduly restrictive. Furthermore, Iemmiti\nacknowledges that Giant has a legitimate business interest in enforcing Section 2, 3 and 4 of this Agreement, because\nof Iemmiti’s access to valuable and confidential information about Giant, as well as confidential information about\nGiant’s existing and prospective customers.\nSECTION 6\nENFORCEMENT\nAnthony Iemmiti and Frank Iemmiti acknowledge and agree that money damages cannot fully compensate Giant in the\nevent of Iemmiti’s violation of the provisions of this Agreement, Thus, in the event of a breach of any of the provisions of\nthis Agreement, Anthony Iemmiti and Frank Iemmiti agree that Giant, upon application to a court of competent\njurisdiction, shall be entitled to an injunction restraining Iemmiti from any further breach of the terms or provisions of this\nAgreement and in such case Iemmiti’s sole remedy, in the event of the wrongful entry of such injunction, shall be the\ndissolution of such injunction. Iemmiti hereby waives any and all claims for damages by reason of the wrongful issuance\nof any such injunction.\nSECTION 7\nMODIFICATION AND WAIVER\nThis Agreement may not be modified or amended except as agreed to in writing by the parties hereto. No term or\ncondition of this Agreement shall be deemed to have been waived, nor shall there be any estoppel against the\nenforcement of any provision of this Agreement, except by written instrument of the party charged with such waiver or\nestoppel. No such written waiver shall be deemed a continuing waiver unless specifically stated therein, and each such\nwaiver shall operate only as to the specific term or condition waived and shall not constitute a waiver of such term or\ncondition for the future, or as to any act other than that specifically waived.\nSECTION 8\nATTORNEYS’ FEES\nIn the event of any proceeding occurring out of or involving this Agreement, the prevailing party shall be entitled to the\nrecovery of reasonable attorneys’ fees, expenses, and costs, including fees and costs to enforce an award.\nSECTION 9\nSEVERABILITY\nThe invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or\nenforceability of any other provision of this Agreement, which shall remain in foil force and effect.\nSECTION 10\nHEADINGS FOR REFERENCE ONLY\nThe headings of the Sections herein are included solely for convenience of reference and shall not control the meaning\nor the interpretation of any of the provisions of this Agreement.\nSECTION 11\nAPPLICABLE LAW\nThis Agreement shall be governed in all respects and be interpreted by and under the laws of the State of New York,\nand venue for any action hereunder shall lie in New York City, New York.\nSECTION 12\nNO CONTRACT OF EMPLOYMENT\nThis Agreement shall not, under any circumstances, be deemed to constitute an employment contract between Giant\nand Frank Iemmiti. Nothing contained in this Agreement shall be deemed to give Frank Iemmiti the right to be retained\nin the service of Giant, or to interfere with the right of Giant to discharge Frank Iemmiti at any time.\nIN WITNESS WHEREOF, Giant and Iemmiti have duly executed this Agreement this 26th day of April 2018.\n/s/ Anthony Iemmiti\nAnthony Iemmiti\n/s/ Frank Iemmiti\nFrank Iemmiti\nTHE GIANT BEVERAGE CO, INC.\n/s/ Fernando Oswaldo Leonzo\nFernando Oswaldo Leonzo\nChief Executive Officer	EX-10.3 2 exhibit_10-3.htm NON-COMPETITION/NON-SOLICITATION/NON-DISCLOSURE AGREEMENT\nNON-COMPETITION, NON-SOLICITATION, AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION, AND NON-DISCLOSURE AGREEMENT (“Agreement”) is entered\ninto between Giant Beverage, Inc. (“Giant”), Anthony lemmiti, and Frank lemmiti on April 26, 2018 (the “Effective Date”).\nWHEREAS, Life on Earth, Inc. (the “Company”) has entered into and closed on a Purchase Agreement with Anthony\nlemmiti and Frank lemmiti as the Sellers in connection with the sale of Giant to the Company for various consideration\n(the “Purchase Agreement”).\nWHEREAS, Anthony lemmiti and Frank lemmiti, were the two and sole owners of Giant prior to the Company’s\npurchase of Giant and have access to: (a) Giant's trade secrets and other valuable confidential business information;\nand (ii) substantial relationships with Giant’s existing and prospective customers and clients.\nWHEREAS, Giant, Anthony lemmiti and Frank lemmiti desire to enter into this Agreement to memorialize the terms and\nconditions of this Agreement.\nNOW, THEREFORE, in consideration of the terms to the Purchase Agreement and addendums thereto, lemmiti hereby\nagrees to the following.\nSECTION 1\nTERM OF AGREEMENT\nThis Agreement shall remain in effect for a period of 2 years after the Effective Date.\nSECTION 2\nAGREEMENT NOT TO COMPETE\nAnthony lemmiti and Frank lemmiti agree that during the term of this Agreement they shall not become employed,\ndirectly or indirectly, or form any business, whether as an independent contractor, consultant, or otherwise, with any\nsimilar business to Giant located in New York City, which includes the five New York City boroughs of Manhattan,\nBrooklyn, Queens, State Island and the Bronx, and Rockland, Westchester, Nassau and Suffolk counties.\nSECTION 3\nAGREEMENT NOT TO SOLICIT\nAnthony lemmiti and Frank lemmiti further agree that during the term of this Agreement, they shall not, directly or\nindirectly, solicit the business of any customer of Giant, regardless of whether they were responsible for generating such\ncustomer’s business for Giant. In addition, Anthony lemmiti and Frank lemmiti agree that during the term of this\nAgreement and this provision, they shall not directly or indirectly solicit the employment of any Giant employee.\nSECTION 4\nAGREEMENT NOT TO DISCLOSE\nDuring and after the term of this Agreement, Anthony lemmiti and Frank lemmiti shall use their best efforts and utmost\ndiligence to guard and protect all of the Giant’s trade secrets and any other confidential business information and shall\nnot, either during or after the term of this Agreement, for any reason, use in any capacity, or divulge or disclose in any\nmanner, to any person or entity, the identity of Giant’s customers, methods of operation, marketing or promotional\nmethods, processes, techniques, systems, formulas, programs, trade secrets, or other confidential information relating\nto Giant’s business. Upon termination of lemmiti’s position as General Manager, for any reason, Frank lemmiti shall\nimmediately return and deliver to Giant, all records and papers and all materials which bear trade secrets or other\nconfidential business information.\nSECTION 5\nREPRESENTATIONS AND ACKNOWLEDGMENTS OF ANTHONY IEMMITI AND FRANK IEMMITI\nAnthony lemmiti and Frank lemmiti hereby agree that the duration of the anti-competitive covenants set forth in Section\n2 of this Agreement are reasonable, and that their geographic scope is not unduly restrictive. Furthermore, lemmiti\nacknowledges that Giant has a legitimate business interest in enforcing Section 2, 3 and 4 of this Agreement, because\nof lemmiti's access to valuable and confidential information about Giant, as well as confidential information about\nGiant's existing and prospective customers.\nSECTION 6\nENFORCEMENT\nAnthony lemmiti and Frank lemmiti acknowledge and agree that money damages cannot fully compensate Giant in the\nevent of lemmiti’s violation of the provisions of this Agreement, Thus, in the event of a breach of any of the provisions of\nthis Agreement, Anthony lemmiti and Frank lemmiti agree that Giant, upon application to a court of competent\njurisdiction, shall be entitled to an injunction restraining lemmiti from any further breach of the terms or provisions of this\nAgreement and in such case lemmiti’s sole remedy, in the event of the wrongful entry of such injunction, shall be the\ndissolution of such injunction. lemmiti hereby waives any and all claims for damages by reason of the wrongful issuance\nof any such injunction.\nSECTION 7\nMODIFICATION AND WAIVER\nThis Agreement may not be modified or amended except as agreed to in writing by the parties hereto. No term or\ncondition of this Agreement shall be deemed to have been waived, nor shall there be any estoppel against the\nenforcement of any provision of this Agreement, except by written instrument of the party charged with such waiver or\nestoppel. No such written waiver shall be deemed a continuing waiver unless specifically stated therein, and each such\nwaiver shall operate only as to the specific term or condition waived and shall not constitute a waiver of such term or\ncondition for the future, or as to any act other than that specifically waived.\nSECTION 8\nATTORNEYS’ FEES\nIn the event of any proceeding occurring out of or involving this Agreement, the prevailing party shall be entitled to the\nrecovery of reasonable attorneys’ fees, expenses, and costs, including fees and costs to enforce an award.\nSECTION 9\nSEVERABILITY\nThe invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or\nenforceability of any other provision of this Agreement, which shall remain in foil force and effect.\nSECTION 10\nHEADINGS FOR REFERENCE ONLY\nThe headings of the Sections herein are included solely for convenience of reference and shall not control the meaning\nor the interpretation of any of the provisions of this Agreement.\nSECTION 11\nAPPLICABLE LAW\nThis Agreement shall be governed in all respects and be interpreted by and under the laws of the State of New York,\nand venue for any action hereunder shall lie in New York City, New York.\nSECTION 12\nNO CONTRACT OF EMPLOYMENT\nThis Agreement shall not, under any circumstances, be deemed to constitute an employment contract between Giant\nand Frank lemmiti. Nothing contained in this Agreement shall be deemed to give Frank lemmiti the right to be retained\nin the service of Giant, or to interfere with the right of Giant to discharge Frank lemmiti at any time.\nIN WITNESS WHEREOF, Giant and lemmiti have duly executed this Agreement this 26th day of April 2018.\n/s/ Anthony Temmiti\nAnthony Iemmiti\n/s/ Frank Iemmiti\nFrank Iemmiti\nTHE GIANT BEVERAGE CO, INC.\n/s/ Fernando Oswaldo Leonzo\nFernando Oswaldo Leonzo\nChief Executive Officer	EX-10.3 2 exhibit_10-3.htm NON COMPETITIONNON-SOLICITATIONNON-DISCLOSUREAGR AGREEMENT\nNON-COMPETITION, NON-SOLICITATION, AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION, AND NON-DISCLOSURE AGREEMENT ("Agreement") is entered\ninto between Giant Beverage, Inc. ("Giant"), Anthony lemmiti, and Frank lemmiti on April 26, 2018 (the "Effective Date").\nWHEREAS, Life on Earth, Inc. (the "Company") has entered into and closed on a Purchase Agreement with Anthony\nlemmiti\nand\nFrank\nlemmiti\nas\nthe\nSellers\nin\nconnection\nwith\nthe\nsale\nof\nGiant\nto\nthe\nCompany\nfor\nvarious\nconsideration\n(the "Purchase Agreement").\nWHEREAS, Anthony lemmiti and Frank lemmiti, were the two and sole owners of Giant prior to the Company's\npurchase of Giant and have access to: (a) Giant's trade secrets and other valuable confidential business information;\nand (ii) substantial relationships with Giant's existing and prospective customers and clients.\nWHEREAS, Giant, Anthony lemmiti and Frank lemmiti desire to enter into this Agreement to memorialize the terms and\nconditions of this Agreement.\nNOW, THEREFORE, in consideration of the terms to the Purchase Agreement and addendums thereto, lemmiti hereby\nagrees to the following.\nSECTION 1\nTERM OF AGREEMENT\nThis Agreement shall remain in effect for a period of 2 years after the Effective Date.\nSECTION 2\nAGREEMENT NOT TO COMPETE\nAnthony lemmiti and Frank lemmiti agree that during the term of this Agreement they shall not become employed,\ndirectly or indirectly, or form any business, whether as an independent contractor, consultant, or otherwise, with\nany\nsimilar business to Giant located in New York City, which includes the five New York City boroughs of Manhattan,\nBrooklyn, Queens, State Island and the Bronx, and Rockland, Westchester, Nassau and Suffolk counties.\nSECTION 3\nAGREEMENT NOT TO SOLICIT\nAnthony lemmiti and Frank lemmiti further agree that during the term of this Agreement, they shall not, directly or\nindirectly, solicit the business of any customer of Giant, regardless of whether they were responsible for generating such\ncustomer's business for Giant. In addition, Anthony lemmiti and Frank lemmiti agree that during the term of this\nAgreement and this provision, they shall not directly or indirectly solicit the employment of any Giant employee.\nSECTION 4\nAGREEMENT NOT TO DISCLOSE\nDuring and after the term of this Agreement, Anthony lemmiti and Frank lemmiti shall use their best efforts and utmost\ndiligence to guard and protect all of the Giant's trade secrets and any other confidential business information and shall\nnot, either during or after the term of this Agreement, for any reason, use in any capacity, or divulge or disclose in any\nmanner, to any person or entity, the identity of Giant's customers, methods of operation, marketing or promotional\nmethods, processes, techniques, systems, formulas, programs, trade secrets, or other confidential information relating\nto Giant's business. Upon termination of lemmiti's position as General Manager, for any reason, Frank lemmiti shal\nimmediately return and deliver to Giant, all records and papers and all materials which bear trade secrets or other\nconfidential business information.\nSECTION 5\nREPRESENTATIONS AND ACKNOWLEDGMENTS OF ANTHONY IEMMITI AND FRANK IEMMITI\nAnthony\nlemmiti\nand\nFrank\nlemmiti\nhereby\nagree\nthat\nthe\nduration\nof\nthe\nanti-competitive\ncovenants\nset\nforth\nin\nSection\n2 of this Agreement are reasonable, and that their geographic scope is not unduly restrictive. Furthermore, lemmiti\nacknowledges that Giant has a legitimate business interest in enforcing Section 2, 3 and 4 of this Agreement, because\nof lemmiti's access to valuable and confidential information about Giant, as well as confidential information about\nGiant's existing and prospective customers.\nSECTION 6\nENFORCEMENT\nAnthony lemmiti and Frank lemmiti acknowledge and agree that money damages cannot fully compensate Giant in the\nevent of lemmiti's violation of the provisions of this Agreement, Thus, in the event of a breach of any of the provisions of\nthis Agreement, Anthony lemmiti and Frank lemmiti agree that Giant, upon application to a court of competent\njurisdiction, shall be entitled to an injunction restraining lemmiti from any further breach of the terms or provisions of this\nAgreement and in such case lemmiti's sole remedy, in the event of the wrongful entry of such injunction, shall be the\ndissolution of such injunction. lemmiti hereby waives any and all claims for damages by reason of the wrongful issuance\nof any such injunction.\nSECTION 7\nMODIFICATION AND WAIVER\nThis Agreement may not be modified or amended except as agreed to in writing by the parties hereto. No term or\ncondition of this Agreement shal be deemed to have been waived, nor shall there be any estoppel against the\nenforcement\nof\nany\nprovision\nof\nthis\nAgreement,\nexcept\nby\nwritten\ninstrument\nof\nthe\nparty\ncharged\nwith\nsuch\nwaiver\nor\nestoppel. No such written waiver shall be deemed a continuing waiver unless specifically stated therein, and each such\nwaiver shall operate only as to the specific term or condition waived and shall not constitute a waiver of such term or\ncondition for the future, or as to any act other than that specifically waived.\nSECTION 8\nATTORNEYS' FEES\nIn the event of any proceeding occurring out of or involving this Agreement, the prevailing party shall be entitled to the\nrecovery of reasonable attorneys' fees, expenses, and costs, including fees and costs to enforce an award.\nSECTION 9\nSEVERABILITY\nThe invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or\nenforceability of any other provision of this Agreement, which shall remain in foil force and effect.\nSECTION 10\nHEADINGS FOR REFERENCE ONLY\nThe headings of the Sections herein are included solely for convenience of reference and shall not control the meaning\nor the interpretation of any of the provisions of this Agreement.\nSECTION 11\nAPPLICABLE LAW\nThis Agreement shall be governed in all respects and be interpreted by and under the laws of the State of New York,\nand venue for any action hereunder shall lie in New York City, New York.\nSECTION 12\nNO CONTRACT OF EMPLOYMENT\nThis Agreement shall not, under any circumstances, be deemed to constitute an employment contract between Giant\nand Frank lemmiti. Nothing contained in this Agreement shall be deemed to give Frank lemmiti the right to be retained\nin the service of Giant, or to interfere with the right of Giant to discharge Frank lemmiti at any time.\nIN WITNESS WHEREOF, Giant and lemmiti have duly executed this Agreement this 26th day of April 2018.\n/s/ Anthony Iemmiti\nAnthony Iemmiti\n/s/ Frank Iemmiti\nFrank Iemmiti\nTHE GIANT BEVERAGE CO, INC.\n/s/ Fernando Oswaldo Leonzo\nFernando Oswaldo Leonzo\nChief Executive Officer	EX-10 .3 2 exhibit_10 -3.htm NON-COMPETITION/NON-SOLICITATION/NON-DISCLOSURE AGREEMENT\nNON-COMPETITION, NON-SOLICITATION, AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION, AND NON-DISCLOSURE AGREEMENT (“Agreement”) is entered\ninto between Giant Beverage, Inc. (“Giant”), Anthony Iemmiti, and Frank Iemmiti on April 26, 2018 (the “Effective Date”).\nWHEREAS, Life on Earth, Inc. (the “Company”) has entered into and closed on a Purchase Agreement with Anthony\nIemmiti and Frank Iemmiti as the Sellers in connection with the sale of Giant to the Company for various consideration\n(the “Purchase Agreement”).\nWHEREAS, Anthony Iemmiti and Frank Iemmiti, were the two and sole owners of Giant prior to the Company’s\npurchase of Giant and have access to: (a) Giant’s trade secrets and other valuable confidential business information;\nand (ii) substantial relationships with Giant’s existing and prospective customers and clients.\nWHEREAS, Giant, Anthony Iemmiti and Frank Iemmiti desire to enter into this Agreement to memorialize the terms and\nconditions of this Agreement.\nNOW, THEREFORE, in consideration of the terms to the Purchase Agreement and addendums thereto, Iemmiti hereby\nagrees to the following.\nSECTION 1\nTERM OF AGREEMENT\nThis Agreement shall remain in effect for a period of 2 years after the Effective Date.\nSECTION 2\nAGREEMENT NOT TO COMPETE\nAnthony Iemmiti and Frank Iemmiti agree that during the term of this Agreement they shall not become employed,\ndirectly or indirectly, or form any business, whether as an independent contractor, consultant, or otherwise, with any\nsimilar business to Giant located in New York City, which includes the five New York City boroughs of Manhattan,\nBrooklyn, Queens, State Island and the Bronx, and Rockland, Westchester, Nassau and Suffolk counties.\nSECTION 3\nAGREEMENT NOT TO SOLICIT\nAnthony Iemmiti and Frank Iemmiti further agree that during the term of this Agreement, they shall not, directly or\nindirectly, solicit the business of any customer of Giant, regardless of whether they were responsible for generating such\ncustomer’s business for Giant. In addition, Anthony Iemmiti and Frank Iemmiti agree that during the term of this\nAgreement and this provision, they shall not directly or indirectly solicit the employment of any Giant employee.\nSECTION 4\nAGREEMENT NOT TO DISCLOSE\nDuring and after the term of this Agreement, Anthony Iemmiti and Frank Iemmiti shall use their best efforts and utmost\ndiligence to guard and protect all of the Giant’s trade secrets and any other confidential business information and shall\nnot, either during or after the term of this Agreement, for any reason, use in any capacity, or divulge or disclose in any\nmanner, to any person or entity, the identity of Giant’s customers, methods of operation, marketing or promotional\nmethods, processes, techniques, systems, formulas, programs, trade secrets, or other confidential information relating\nto Giant’s business. Upon termination of Iemmiti’s position as General Manager, for any reason, Frank Iemmiti shall\nimmediately return and deliver to Giant, all records and papers and all materials which bear trade secrets or other\nconfidential business information.\nSECTION 5\nREPRESENTATIONS AND ACKNOWLEDGMENTS OF ANTHONY IEMMITI AND FRANK IEMMITI\nAnthony Iemmiti and Frank Iemmiti hereby agree that the duration of the anti-competitive covenants set forth in Section\n2 of this Agreement are reasonable, and that their geographic scope is not unduly restrictive. Furthermore, Iemmiti\nacknowledges that Giant has a legitimate business interest in enforcing Section 2, 3 and 4 of this Agreement, because\nof Iemmiti’s access to valuable and confidential information about Giant, as well as confidential information about\nGiant’s existing and prospective customers.\nSECTION 6\nENFORCEMENT\nAnthony Iemmiti and Frank Iemmiti acknowledge and agree that money damages cannot fully compensate Giant in the\nevent of Iemmiti’s violation of the provisions of this Agreement, Thus, in the event of a breach of any of the provisions of\nthis Agreement, Anthony Iemmiti and Frank Iemmiti agree that Giant, upon application to a court of competent\njurisdiction, shall be entitled to an injunction restraining Iemmiti from any further breach of the terms or provisions of this\nAgreement and in such case Iemmiti’s sole remedy, in the event of the wrongful entry of such injunction, shall be the\ndissolution of such injunction. Iemmiti hereby waives any and all claims for damages by reason of the wrongful issuance\nof any such injunction.\nSECTION 7\nMODIFICATION AND WAIVER\nThis Agreement may not be modified or amended except as agreed to in writing by the parties hereto. No term or\ncondition of this Agreement shall be deemed to have been waived, nor shall there be any estoppel against the\nenforcement of any provision of this Agreement, except by written instrument of the party charged with such waiver or\nestoppel. No such written waiver shall be deemed a continuing waiver unless specifically stated therein, and each such\nwaiver shall operate only as to the specific term or condition waived and shall not constitute a waiver of such term or\ncondition for the future, or as to any act other than that specifically waived.\nSECTION 8\nATTORNEYS’ FEES\nIn the event of any proceeding occurring out of or involving this Agreement, the prevailing party shall be entitled to the\nrecovery of reasonable attorneys’ fees, expenses, and costs, including fees and costs to enforce an award.\nSECTION 9\nSEVERABILITY\nThe invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or\nenforceability of any other provision of this Agreement, which shall remain in foil force and effect.\nSECTION 10\nHEADINGS FOR REFERENCE ONLY\nThe headings of the Sections herein are included solely for convenience of reference and shall not control the meaning\nor the interpretation of any of the provisions of this Agreement.\nSECTION 11\nAPPLICABLE LAW\nThis Agreement shall be governed in all respects and be interpreted by and under the laws of the State of New York,\nand venue for any action hereunder shall lie in New York City, New York.\nSECTION 12\nNO CONTRACT OF EMPLOYMENT\nThis Agreement shall not, under any circumstances, be deemed to constitute an employment contract between Giant\nand Frank Iemmiti. Nothing contained in this Agreement shall be deemed to give Frank Iemmiti the right to be retained\nin the service of Giant, or to interfere with the right of Giant to discharge Frank Iemmiti at any time.\nIN WITNESS WHEREOF, Giant and Iemmiti have duly executed this Agreement this 26th day of April 2018.\n/s/ Anthony Iemmiti\nAnthony Iemmiti\n/s/ Frank Iemmiti\nFrank Iemmiti\nTHE GIANT BEVERAGE CO, INC.\n/s/ Fernando Oswaldo Leonzo\nFernando Oswaldo Leonzo\nChief Executive Officer
abdb673749695a4cebaadb12ab1940e3.pdf	jurisdiction party	Exhibit B\nNon-Competition, Non-Solicitation and Confidential Information Agreement\nThis Non-Competition, Non-Solicitation and Confidential Information Agreement\n("Non-Competition and Confidentiality Agreement") is between Flagstar Bancorp, Inc., a Michigan\ncorporation (the “Company”), Flagstar Bank, FSB, a federally chartered savings bank and wholly-owned\nsubsidiary of the Company (the “Bank” and, together with the Company, “Flagstar”) and James Ciroli (the\n“Executive”), and is effective as of the time the Executive executes this Agreement.\nIn consideration of Executive’s employment with Flagstar, and the compensation and benefits to be\nprovided to Executive by Flagstar, Executive hereby acknowledges and agrees as follows:\n1. Confidential Information. "Confidential Information" is to be broadly interpreted and means (i)\nall non- public techniques/strategies and information that Flagstar has or Executive (in the course and scope of\nemployment with Flagstar) develops, compiles, acquires, or receives that has or may have commercial value or\nusefulness to Flagstar, to its clients or to their competitors in their respective businesses; (ii) all non-public\ninformation that, if disclosed without authorization, could be detrimental to the interest of Flagstar or its\nclients/customers, whether or not such information is identified as Confidential Information or otherwise\n“confidential” by Flagstar or its Clients; (iii) any consumer, customer, or employee information, including all\npersonally identifiable information of any consumer, customer, or employee in any format to which Executive\nmay have access during employment with Flagstar and (iv) all information belonging to third parties, such as\nvendors, that Flagstar is bound by contract or otherwise to keep confidential. Confidential Information includes\nnot only information disclosed by Flagstar (including its employees, agents, and independent contractors) or its\nclients to Executive, but also information developed or learned by Executive in the course and scope of\nemployment with Flagstar.\nBy example only and without limitation, “Confidential Information” includes all information on trade\nsecrets, inventions, innovations, processes, discoveries, improvements, research or development test results,\nspecifications, data, data compilations and analyses, know-how, formats, employee information, subscriber\ninformation, marketing plans, business plans, strategies, forecasts, unpublished financial information, budgets,\nprojections, and client, prospective client and supplier identities and contact information, characteristics and\nagreements, whether in print, in electronic files, or residing on non-public Internet sites. Flagstar is the sole\nowner of the Confidential Information or is authorized by a third party to use the Confidential Information for\nlimited purposes. Executive hereby irrevocably assigns to Flagstar all right, title, and interest Executive may\nhave or may acquire to all Confidential Information.\n2. Use of Confidential Information. At all times during Executive’s employment with Flagstar, and\nafter such employment ends (for any reason, voluntarily or involuntarily), Executive shall hold in trust, keep\nconfidential and shall not make any direct or indirect use or disclosure of any Confidential Information, to or\nfor Executive’s benefit or the benefit of any third\n16\nparty. In the event that Executive is not sure whether certain information is Confidential Information,\nExecutive shall err on the side of caution and treat such information as Confidential Information. It is\nExecutive’s responsibility to understand what is considered to be Confidential Information and to follow any\nspecific guidelines and procedures set forth by Flagstar to protect such Confidential Information. Executive\nshall not remove any Confidential Information from Flagstar’s premises or computer/electronic systems unless\nstrictly required by Executive’s job, in which case, Executive shall undertake diligent steps to insure that it\nremains confidential and that it is protected from loss, damage, theft and disclosure, and Executive shall\nimmediately return the Confidential Information (and any copies thereof) to Flagstar’s premises\ncomputer/electronic systems.\nConfidential Information shall not be deemed to include information that (i) becomes generally\navailable to the public through no fault of the Executive, (ii) is previously known by the Executive prior to his\nreceipt of such information from Flagstar, (iii) becomes available to the Executive on a non-confidential basis\nfrom a source which, to the Executive’s knowledge, is not prohibited from disclosing such information by\nlegal, contractual or fiduciary obligation to Flagstar, or (iv) is required to be disclosed in order to comply with\nany applicable law or court order.\n3. Protected Rights. Executive understands that this Agreement does not limit Executive’s ability to\ncommunicate with any Government Agencies or otherwise participate in any investigation or proceeding that\nmay be conducted by any Government Agency, including providing documents or other information, without\nnotice to Flagstar. Executive may disclose Confidential Information that qualifies as trade secrets in\nconfidence, either directly or indirectly, to a Federal, State, or local government official, or to an attorney,\nsolely for the purpose of reporting or investigating a suspected violation of law, or in a complaint or other\ndocument filed in a lawsuit or other proceeding, if such filing is made under seal.\n4. Non-Competition. At all times during Executive’s employment with Flagstar and for a period of\none (1) year after such employment ends (for any reason, voluntarily or involuntarily), Executive agrees that\nthe Executive shall not, on behalf of the Executive or for others, directly or indirectly (whether as employee,\nconsultant, investor, partner, sole proprietor or otherwise), be employed by, have an ownership interest in, or\nperform any services for a financial institution engaged in (or planning to become engaged in) the same lines of\nbusiness as Flagstar or its subsidiaries (“Business of Flagstar”) in any state of the United States where the\nFlagstar or its subsidiaries are doing business. The Parties agree that this provision shall not prohibit the\nownership by the Executive, solely as an investment, of securities of a person engaged in the Business of\nFlagstar if (i) the Executive is not an “affiliate” (as such term is defined in Rule 12b-2 of the regulations\npromulgated under the Exchange Act) of the issuer of such securities, (ii) such securities are publicly traded on\na national securities exchange and (iii) the Executive does not, directly or indirectly, beneficially own more\nthan two percent (2%) of the class of which such securities are a part.\n5. Non-Solicitation of Employees. At all times during Executive’s employment with Flagstar, and\nfor a period of one (1) year after such employment ends (for any reason, voluntarily or involuntarily),\nExecutive will not, directly or indirectly, on behalf of Executive or any other person or entity, hire, engage or\nsolicit to hire for employment or consulting (or other provision of\n17\nservices) any person who is actively employed (or in the six (6) months preceding the Executive’s termination\nof employment with Flagstar or its subsidiaries was actively employed) by Flagstar or its subsidiaries. This\nincludes, but is not limited to, inducing or attempting to induce, or influence or attempting to influence, any\nperson employed by Flagstar to terminate his or her employment with Flagstar or its subsidiaries. This\nparagraph does not prohibit an employee from independently locating and applying for any public job posting\nand actually being hired for such position as long as the Executive has not been directly or indirectly involved\nin the process in any way.\n6. Non-Solicitation of Customers. At all times during Executive’s employment with Flagstar, and\nfor a period of one (1) year after such employment ends (for any reason, voluntarily or involuntarily),\nExecutive will not, directly or indirectly, on behalf of the Executive or any entity/person engaged in (or\nplanning to become engaged in) the Business of Flagstar, solicit or accept the business of any entity in any\nstate of the United States where the Flagstar or its subsidiaries are doing business who is, or was in the past (1)\none year, a customer of Flagstar or its subsidiaries.\n7. Miscellaneous. In the event any term of this Non-Competition and Confidentiality Agreement\n(Exhibit B), is deemed unreasonable by a court (or arbitrator), Flagstar and Executive agree and request that the\ncourt (or arbitrator) reform the unreasonable terms or term to ensure the restrictive covenants are enforceable to\nthe maximum extent legally permissible under Michigan law. This Non-Competition and Confidentiality\nAgreement, in conjunction with the Agreement and Release Agreement (Exhibit A), constitute the full,\ncomplete and exclusive agreement between the Parties pertaining to the subject matters covered, and supersede\nall prior and contemporaneous understandings or agreements pertaining to the subject matters covered hereby.\nThis Non-Competition and Confidentiality Agreement is governed by the laws of the State of Michigan\nwithout regard it its conflict of law provisions and may not be amended or modified except with a writing that\nspecifically amends this Agreement and is signed by Executive and the Chief Executive Officer of Flagstar.\nFLAGSTAR BANK, FSB\nBy: _____________________________\nName: ___________________________\nTitle: ____________________________\nDate: ____________________________\nFLAGSTAR BANCORP, INC.\nBy: _____________________________\nName: ___________________________\nTitle: ____________________________\nDate: ____________________________\nEXECUTIVE\nSignature__________________________\nName (Printed):_____________________\nDate: ___________________________\n18	Exhibit B\nNon-C ompetition, Non-Solicitation and C onfidential Information Agreement\nThis Non-C ompetition, Non-Solicitation and Confidential Information Agreement\n("Non-Competition and Confidentiality Agreement") is between Flagstar Bancorp, Inc., a Michigan\ncorporation (the ”Company”), Flagstar Bank, FSB, a federally chartered savings bank and wholly-owned\nsubsidiary of the Company (the ”Bank" and, together with the Company, ”Flagstar”) and James Ciroli (the\n”Executive”), and is effective as of the time the Executive executes this Agreement.\nIn consideration of Executive’s employment with Flagstar, and the compensation and benefits to be\nprovided to Executive by Flagstar, Executive hereby acknowledges and agrees as follows:\n1. Confidential Information. "Confidential Information" is to be broadly interpreted and means (i)\nall non- public techniques/strategies and information that Flagstar has or Executive (in the course and scope of\nemployment with Flagstar) develops, compiles, acquires, or receives that has or may have commercial value or\nusefulness to Flagstar, to its clients or to their competitors in their respective businesses; (ii) all non-public\ninformation that, if disclosed without authorization, could be detrimental to the interest of Flagstar or its\nclients/customers, whether or not such information is identified as Confidential Information or otherwise\n”confidential” by Flagstar or its Clients; (iii) any consumer, customer, or employee information, including all\npersonally identifiable information of any consumer, customer, or employee in any format to which Executive\nmay have access during employment with Flagstar and (iv) all information belonging to third parties, such as\nvendors, that Flagstar is bound by contract or otherwise to keep confidential. Confidential Information includes\nnot only information disclosed by Flagstar (including its employees, agents, and independent contractors) or its\nclients to Executive, but also information developed or learned by Executive in the course and scope of\nemployment with Flagstar.\nBy example only and without limitation, ”Confidential Information” includes all information on trade\nsecrets, inventions, innovations, processes, discoveries, improvements, research or development test results,\nspecifications, data, data compilations and analyses, know-how, forrrrats, employee information, subscriber\ninformation, marketing plans, business plans, strategies, forecasts, unpublished financial information, budgets,\nprojections, and client, prospective client and supplier identities and contact information, characteristics and\nagreements, whether in print, in electronic files, or residing on non-public Internet sites. Flagstar is the sole\nowner of the Confidential Information or is authorized by a third party to use the Confidential Information for\nlimited purposes. Executive hereby irrevocably assigns to Flagstar all right, title, and interest Executive may\nhave or may acquire to all Confidential Information.\n2. Use of Confidential Information. At all times during Executive’s employment with Flagstar, and\nafter such employment ends (for any reason, voluntarily or involuntarily), Executive shall hold in trust, keep\nconfidential and shall not make any direct or indirect use or disclosure of any Confidential Information, to or\nfor Executive’s benefit or the benefit of any third\n16\nparty. In the event that Executive is not sure whether certain information is Confidential Information,\nExecutive shall err on the side of caution and treat such information as Confidential Information. It is\nExecutive’s responsibility to understand what is considered to be Confidential Information and to follow any\nspecific guidelines and procedures set forth by Flagstar to protect such Confidential Information. Executive\nshall not remove any Confidential Information from Flagstar s premises or computer/electronic systems unless\nstrictly required by Executive’s job, in which case, Executive shall undertake diligent steps to insure that it\nremains confidential and that it is protected from loss, damage, theft and disclosure, and Executive shall\nimmediately return the Confidential Information (and any copies thereof) to Flagstars premises\ncomputer/electronic systems.\nConfidential Information shall not be deemed to include information that (1) becomes generally\navailable to the public through no fault of the Executive, (ii) is previously known by the Executive prior to his\nreceipt of such information from Flagstar, (iii) becomes available to the Executive on a non-confidential basis\nfrom a source which, to the Executive's knowledge, is not prohibited from disclosing such information by\nlegal, contractual or fiduciary obligation to Flagstar, or (iv) is required to be disclosed in order to comply with\nany applicable law or court order.\n3. Protected Rights. Executive understands that this Agreement does not limit Executive's ability to\ncommunicate with any Government Agencies or otherwise participate in any investigation or proceeding that\nmay be conducted by any Government Agency, including providing documents or other information, without\nnotice to Flagstar. Executive may disclose Confidential Information that qualifies as trade secrets in\nconfidence, either directly or indirectly, to a Federal, State, or local government official, or to an attorney,\nsolely for the purpose of reporting or investigating a suspected violation of law, or in a complaint or other\ndocument filed in a lawsuit or other proceeding, if such filing is made under seal.\n4. Non-C ompetition. At all times during Executive’s employment with Flagstar and for a period of\none (1) year after such employment ends (for any reason, voluntarily or involuntarily), Executive agrees that\nthe Executive shall not, on behalf of the Executive or for others, directly or indirectly (whether as employee,\nconsultant, investor, partner, sole proprietor or otherwise), be employed by, have an ownership interest in, or\nperform any services for a financial institution engaged in (or planning to become engaged in) the same lines of\nbusiness as Flagstar or its subsidiaries (”Business of Flagstar”) in any state of the United States where the\nFlagstar or its subsidiaries are doing business. The Parties agree that this provision shall not prohibit the\nownership by the Executive, solely as an investment, of securities of a person engaged in the Business of\nFlagstar if (i) the Executive is not an ”affiliate" (as such term is defined in Rule 12b—2 of the regulations\npromulgated under the Exchange Act) of the issuer of such securities, (ii) such securities are publicly traded on\na national securities exchange and (iii) the Executive does not, directly or indirectly, beneficially own more\nthan two percent (2%) of the class of which such securities are a part.\n5. Non-Solicitation of Employees. At all times during Executive’s employment with Flagstar, and\nfor a period of one (1) year after such employment ends (for any reason, voluntarily or involuntarily),\nExecutive will not, directly or indirectly, on behalf of Executive or any other person or entity, hire, engage or\nsolicit to hire for employment or consulting (or other provision of\n17\nservices) any person who is actively employed (or in the six (6) months preceding the Executive’s termination\nof employment with Flagstar or its subsidiaries was actively employed) by Flagstar or its subsidiaries. This\nincludes, but is not limited to, inducing or attempting to induce, or influence or attempting to influence, any\nperson employed by Flagstar to terminate his or her employment with Flagstar or its subsidiaries. This\nparagraph does not prohibit an employee from independently locating and applying for any public job posting\nand actually being hired for such position as long as the Executive has not been directly or indirectly involved\nin the process in any way.\n6. Non-Solicitation of Customers. At all times during Executive’s employment with Flagstar, and\nfor a period of one (1) year after such employment ends (for any reason, voluntarily or involuntarily),\nExecutive will not, directly or indirectly, on behalf of the Executive or any entity/person engaged in (or\nplanning to become engaged in) the Business of Flagstar, solicit or accept the business of any entity in any\nstate of the United States where the Flagstar or its subsidiaries are doing business who is, or was in the past (1)\none year, a customer of Flagstar or its subsidiaries.\n7. Miscellaneous. In the event any term of this Non-Competition and Confidentiality Agreement\n(Exhibit B), is deemed unreasonable by a court (or arbitrator), Flagstar and Executive agree and request that the\ncourt (or arbitrator) reform the unreasonable terms or term to ensure the restrictive covenants are enforceable to\nthe maximum extent legally permissible under Michigan law. This Non-Competition and Confidentiality\nAgreement, in conjunction with the Agreement and Release Agreement (Exhibit A), constitute the full,\ncomplete and exclusive agreement between the Parties pertaining to the subject matters covered, and supersede\nall prior and contemporaneous understandings or agreements pertaining to the subject matters covered hereby.\nThis Non-Competition and Confidentiality Agreement is governed by the laws of the State of Michigan\nwithout regard it its conflict of law provisions and may not be amended or modified except with a writing that\nspecifically amends this Agreement and is signed by Executive and the Chief Executive Officer of Flagstar.\n \n \n \n \nFLAG STAR BANK, FSB FLAG STAR BANCORP, INC.\nBY: By:\nName: Name:\nTitle: Title:\n \n \nDate: Date:\n \n \nEXECUTIVE\nSignature\n \nDate:\nName (Printed):\n \n18\n	Exhibit B\non-Competition, Non-Solicitation and Confidential Information Agreement\nThis Non-Competition, Non-Solicitation and Confidential Information Agreement\n("Non-Competition and Confidentiality A greement") is between Flagstar Bancorp, Inc., a Michigan\ncorporation (the "Company"), Flagstar Bank, FSB, a federally chartered savings bank and wholly-owned\nsubsidiary of the Company (the "Bank" and, together with the Company, "Flagstar") and James Ciroli (the\n"Executive") and is effective as of the time the Executive executes this A greement.\nIn consideration of Executive's employment with Flagstar, and the compensation and benefits to be\nprovided to Executive by Flagstar, Executive hereby acknowledges and agrees as follows:\n1.\nConfidential Information. "Confidential Information" is to be broadly interpreted and means\n(i)\nall non- public techniques/strategies and information that Flagstar has or Executive (in the course and scope of\nemployment with Flagstar) develops, compiles, acquires, or receives that has or may have commercial value or\nusefulness to Flagstar, to its clients or to their competitors in their respective businesses; (ii) all non-public\ninformation that, if disclosed without authorization, could be detrimental to the interest of Flagstar or its\nclients/customers, whether or not such information is identified as Confidential Information or otherwise\n"confidential"\nby\nFlagstar\nor\nits\nClients;\n(iii)\nany\nconsumer,\ncustomer,\nor\nemployee\ninformation,\nincluding\nall\npersonally identifiable information of any consumer, customer, or employee in any format to which Executive\nmay have access during employment with Flagstar and (iv) all information belonging to third parties, such as\nvendors, that Flagstar is bound by contract or otherwise to keep confidential. Confidential Information includes\nnot only information disclosed by Flagstar (including its employees, agents, and independent contractors) or its\nclients to Executive, but also information developed or learned by Executive in the course and scope of\nemployment with Flagstar.\nBy example only and without limitation "Confidential Information" includes all information on trade\nsecrets, inventions, innovations, processes, discoveries, improvements, research or development test results,\nspecifications, data, data compilations and analyses, know-how, formats, employee information, subscriber\ninformation, marketing plans, business plans, strategies, forecasts, unpublished financial information, budgets,\nprojections, and client, prospective client and supplier identities and contact information, characteristics and\nagreements, whether in print, in electronic files, or residing on non-public Internet sites. Flagstar is the sole\nowner of the Confidential Information or is authorized by a third party to use the Confidential Information for\nlimited purposes. Executive hereby irrevocably assigns to Flagstar all right, title, and interest Executive may\nhave or may acquire to all Confidential Information.\n2. Use of Confidential Information. A all times during Executive's employment with Flagstar, and\nafter such employment ends (for any reason, voluntarily or involuntarily), Executive shall hold in trust, keep\nconfidential and shall not make any direct or indirect use or disclosure of any Confidential Information, to or\nfor Executive's benefit or the benefit of any third\n16\nparty. In the event that Executive is not sure whether certain information is Confidential Information,\nExecutive shall err on the side of caution and treat such information as Confidential Information. It is\nExecutive's responsibility to understand what is considered to be Confidential Information and to follow any\nspecific guidelines and procedures set forth by Flagstar to protect such Confidential Information. Executive\nshall not remove any Confidential Information from Flagstar's premises or computer/electronic systems unless\nstrictly\nrequired\nby\nExecutive's\njob,\nin\nwhich\ncase,\nExecutive\nshall\nundertake\ndiligent\nsteps\nto\ninsure\nthat\nit\nremains confidential and that it is protected from loss, damage, theft and disclosure, and Executive shall\nimmediately return the Confidential Information (and any copies thereof) to Flagstar's premises\ncomputer/electronic systems.\nConfidential Information shall not be deemed to include information that (i) becomes generally\navailable\nto\nthe\npublic\nthrough\nno\nfault\nof\nthe\nExecutive,\n(ii)\nis\npreviously\nknown\nby\nthe\nExecutive\nprior\nto\nhis\nreceipt of such information from Flagstar, (iii) becomes available to the Executive on a non-confidential basis\nfrom a source which, to the Executive's knowledge, is not prohibited from disclosing such information by\nlegal, contractual or fiduciary obligation to Flagstar, or (iv) is required to be disclosed in order to comply with\nany applicable law or court order.\n3. Protected Rights. Executive understands that this A greement does not limit Executive's ability to\ncommunicate with any Government gencies or otherwise participate in any investigation or proceeding that\nmay be conducted by any Government gency, including providing documents or other information, without\nnotice to Flagstar. Executive may disclose Confidential Information that qualifies as trade secrets in\nconfidence, either directly or indirectly, to a Federal, State, or local government official, or to an attorney,\nsolely for the purpose of reporting or investigating a suspected violation of law, or in a complaint or other\ndocument filed in a lawsuit or other proceeding, if such filing is made under seal.\n4.\non-Competition. At all times during Executive's employment with Flagstar and for a period of\none (1) year after such employment ends (for any reason, voluntarily or involuntarily), Executive agrees that\nthe Executive shall not, on behalf of the Executive or for others, directly or indirectly (whether as employee,\nconsultant, investor, partner, sole proprietor or otherwise), be employed by, have an ownership interest in, or\nperform any services for a financial institution engaged in (or planning to become engaged in) the same lines of\nbusiness as Flagstar or its subsidiaries ("Business of Flagstar") in any state of the United States where the\nFlagstar or its subsidiaries are doing business. The Parties agree that this provision shall not prohibit the\nownership by the Executive, solely as an investment, of securities of a person engaged in the Business of\nFlagstar if (i) the Executive is not an "affiliate" (as such term is defined in Rule 12b-2 of the regulations\npromulgated under the Exchange ct) of the issuer of such securities, (ii) such securities are publicly traded on\na national securities exchange and (iii) the Executive does not directly or indirectly, beneficially own more\nthan two percent (2%) of the class of which such securities are a part.\n5.\nNon-Solicitation of Employees. A all times during Executive's employment with Flagstar, and\nfor a period of one (1) year after such employment ends (for any reason, voluntarily or involuntarily),\nExecutive will not, directly or indirectly, on behalf of Executive or any other person or entity, hire, engage or\nsolicit to hire for employment or consulting (or other provision of\n17\nservices) any person who is actively employed (or in the six (6) months preceding the Executive's termination\nof employment with Flagstar or its subsidiaries was actively employed) by Flagstar or its subsidiaries. This\nincludes, but is not limited to, inducing or attempting to induce, or influence or attempting to influence, any\nperson employed by Flagstar to terminate his or her employment with Flagstar or its subsidiaries. This\nparagraph does not prohibit an employee from independently locating and applying for any public job posting\nand actually being hired for such position as long as the Executive has not been directly or indirectly involved\nin the process in any way.\n6. Non-Solicitation of Customers. A all times during Executive's employment with Flagstar, and\nfor a period of one (1) year after such employment ends (for any reason, voluntarily or involuntarily),\nExecutive will not, directly or indirectly, on behalf of the Executive or any entity/person engaged in (or\nplanning to become engaged in) the Business of Flagstar, solicit or accept the business of any\nentity\nin\nany\nstate of the United States where the Flagstar or its subsidiaries are doing business who is, or was in the past (1)\none year, a customer of Flagstar or its subsidiaries.\n7. Miscellaneous. In the event any term of this Non-Competition and Confidentiality A greement\n(Exhibit B), is deemed unreasonable by a court (or arbitrator), Flagstar and Executive agree and request that the\ncourt\n(or\narbitrator)\nreform\nthe\nunreasonable\nterms\nor\nterm\nto\nensure\nthe\nrestrictive\ncovenants\nare\nenforceable\nto\nthe maximum extent legally permissible under Michigan law. This Non-Competition and Confidentiality\nA greement in conjunction with the A greement and Release A greement (Exhibit A), constitute the full,\ncomplete and exclusive agreement between the Parties pertaining to the subject matters covered, and supersede\nall prior and contemporaneous understandings or agreements pertaining to the subject matters covered hereby.\nThis Non-Competition and Confidentiality A greement is governed by the laws of the State of Michigan\nwithout regard it its conflict of law provisions and may not be amended or modified except with a writing that\nspecifically amends this A greement and is signed by Executive and the Chief Executive Officer of Flagstar.\nFLAGSTAR BANK, FSB\nFLAGSTAR BANCORP, INC.\nBy:\nBy:\nName:\nName:\nTitle:\nTitle:\nDate:\nDate:\nEXECUTIVE\nSignature\nDate:\nName (Printed)\n18	Exhibit B\nNon-Competition, Non-Solicitation and Confidential Information Agreement\nThis Non-Competition, Non-Solicitation and Confidential Information Agreement\n("Non-Competition and Confidentiality Agreement") is between Flagstar Bancorp, Inc., a Michigan\ncorporation (the “Company”), Flagstar Bank, FSB, a federally chartered savings bank and wholly-owned\nsubsidiary of the Company (the “Bank” and, together with the Company, “Flagstar”) and James Ciroli (the\n“Executive”), and is effective as of the time the Executive executes this Agreement.\nIn consideration of Executive’s employment with Flagstar, and the compensation and benefits to be\nprovided to Executive by Flagstar, Executive hereby acknowledges and agrees as follows:\n1. Confidential Information. "Confidential Information" is to be broadly interpreted and means (i)\nall non- public techniques/strategies and information that Flagstar has or Executive (in the course and scope of\nemployment with Flagstar) develops, compiles, acquires, or receives that has or may have commercial value or\nusefulness to Flagstar, to its clients or to their competitors in their respective businesses; (ii) all non-public\ninformation that, if disclosed without authorization, could be detrimental to the interest of Flagstar or its\nclients/customers, whether or not such information is identified as Confidential Information or otherwise\n“confidential” by Flagstar or its Clients; (iii) any consumer, customer, or employee information, including all\npersonally identifiable information of any consumer, customer, or employee in any format to which Executive\nmay have access during employment with Flagstar and (iv) all information belonging to third parties, such as\nvendors, that Flagstar is bound by contract or otherwise to keep confidential. Confidential Information includes\nnot only information disclosed by Flagstar (including its employees, agents, and independent contractors) or its\nclients to Executive, but also information developed or learned by Executive in the course and scope of\nemployment with Flagstar.\nBy example only and without limitation, “Confidential Information” includes all information on trade\nsecrets, inventions, innovations, processes, discoveries, improvements, research or development test results,\nspecifications, data, data compilations and analyses, know-how, formats, employee information, subscriber\ninformation, marketing plans, business plans, strategies, forecasts, unpublished financial information, budgets,\nprojections, and client, prospective client and supplier identities and contact information, characteristics and\nagreements, whether in print, in electronic files, or residing on non-public Internet sites. Flagstar is the sole\nowner of the Confidential Information or is authorized by a third party to use the Confidential Information for\nlimited purposes. Executive hereby irrevocably assigns to Flagstar all right, title, and interest Executive may\nhave or may acquire to all Confidential Information.\n2. Use of Confidential Information. At all times during Executive’s employment with Flagstar, and\nafter such employment ends (for any reason, voluntarily or involuntarily), Executive shall hold in trust, keep\nconfidential and shall not make any direct or indirect use or disclosure of any Confidential Information, to or\nfor Executive’s benefit or the benefit of any third\n16\nparty. In the event that Executive is not sure whether certain information is Confidential Information,\nExecutive shall err on the side of caution and treat such information as Confidential Information. It is\nExecutive’s responsibility to understand what is considered to be Confidential Information and to follow any\nspecific guidelines and procedures set forth by Flagstar to protect such Confidential Information. Executive\nshall not remove any Confidential Information from Flagstar’s premises or computer/electronic systems unless\nstrictly required by Executive’s job, in which case, Executive shall undertake diligent steps to insure that it\nremains confidential and that it is protected from loss, damage, theft and disclosure, and Executive shall\nimmediately return the Confidential Information (and any copies thereof) to Flagstar’s premises\ncomputer/electronic systems.\nConfidential Information shall not be deemed to include information that (i) becomes generally\navailable to the public through no fault of the Executive, (ii) is previously known by the Executive prior to his\nreceipt of such information from Flagstar, (iii) becomes available to the Executive on a non-confidential basis\nfrom a source which, to the Executive’s knowledge, is not prohibited from disclosing such information by\nlegal, contractual or fiduciary obligation to Flagstar, or (iv) is required to be disclosed in order to comply with\nany applicable law or court order.\n3. Protected Rights. Executive understands that this Agreement does not limit Executive’s ability to\ncommunicate with any Government Agencies or otherwise participate in any investigation or proceeding that\nmay be conducted by any Government Agency, including providing documents or other information, without\nnotice to Flagstar. Executive may disclose Confidential Information that qualifies as trade secrets in\nconfidence, either directly or indirectly, to a Federal, State, or local government official, or to an attorney,\nsolely for the purpose of reporting or investigating a suspected violation of law, or in a complaint or other\ndocument filed in a lawsuit or other proceeding, if such filing is made under seal.\n4. Non-Competition. At all times during Executive’s employment with Flagstar and for a period of\none (1) year after such employment ends (for any reason, voluntarily or involuntarily), Executive agrees that\nthe Executive shall not, on behalf of the Executive or for others, directly or indirectly (whether as employee,\nconsultant, investor, partner, sole proprietor or otherwise), be employed by, have an ownership interest in, or\nperform any services for a financial institution engaged in (or planning to become engaged in) the same lines of\nbusiness as Flagstar or its subsidiaries (“Business of Flagstar”) in any state of the United States where the\nFlagstar or its subsidiaries are doing business. The Parties agree that this provision shall not prohibit the\nownership by the Executive, solely as an investment, of securities of a person engaged in the Business of\nFlagstar if (i) the Executive is not an “affiliate” (as such term is defined in Rule 12b-2 of the regulations\npromulgated under the Exchange Act) of the issuer of such securities, (ii) such securities are publicly traded on\na national securities exchange and (iii) the Executive does not, directly or indirectly, beneficially own more\nthan two percent (2%) of the class of which such securities are a part.\n5. Non-Solicitation of Employees. At all times during Executive’s employment with Flagstar, and\nfor a period of one (1) year after such employment ends (for any reason, voluntarily or involuntarily),\nExecutive will not, directly or indirectly, on behalf of Executive or any other person or entity, hire, engage or\nsolicit to hire for employment or consulting (or other provision of\n17\nservices) any person who is actively employed (or in the six (6) months preceding the Executive’s termination\nof employment with Flagstar or its subsidiaries was actively employed) by Flagstar or its subsidiaries. This\nincludes, but is not limited to, inducing or attempting to induce, or influence or attempting to influence, any\nperson employed by Flagstar to terminate his or her employment with Flagstar or its subsidiaries. This\nparagraph does not prohibit an employee from independently locating and applying for any public job posting\nand actually being hired for such position as long as the Executive has not been directly or indirectly involved\nin the process in any way.\n6. Non-Solicitation of Customers. At all times during Executive’s employment with Flagstar, and\nfor a period of one (1) year after such employment ends (for any reason, voluntarily or involuntarily),\nExecutive will not, directly or indirectly, on behalf of the Executive or any entity/person engaged in (or\nplanning to become engaged in) the Business of Flagstar, solicit or accept the business of any entity in any\nstate of the United States where the Flagstar or its subsidiaries are doing business who is, or was in the past (1)\none year, a customer of Flagstar or its subsidiaries.\n7. Miscellaneous. In the event any term of this Non-Competition and Confidentiality Agreement\n(Exhibit B), is deemed unreasonable by a court (or arbitrator), Flagstar and Executive agree and request that the\ncourt (or arbitrator) reform the unreasonable terms or term to ensure the restrictive covenants are enforceable to\nthe maximum extent legally permissible under Michigan law. This Non-Competition and Confidentiality\nAgreement, in conjunction with the Agreement and Release Agreement (Exhibit A), constitute the full,\ncomplete and exclusive agreement between the Parties pertaining to the subject matters covered, and supersede\nall prior and contemporaneous understandings or agreements pertaining to the subject matters covered hereby.\nThis Non-Competition and Confidentiality Agreement is governed by the laws of the State of Michigan\nwithout regard it its conflict of law provisions and may not be amended or modified except with a writing that\nspecifically amends this Agreement and is signed by Executive and the Chief Executive Officer of Flagstar.\nFLAGSTAR BANK, FSB\nBy: _____________________________\nName: ___________________________\nTitle: ____________________________\nDate: ____________________________\nFLAGSTAR BANCORP, INC.\nBy: _____________________________\nName: ___________________________\nTitle: ____________________________\nDate: ____________________________\nEXECUTIVE\nSignature__________________________\nName (Printed):_____________________\nDate: ___________________________\n18
ac78301152c67fe15d50045143498982.pdf	effective_date jurisdiction party term	Michael Baker Corporation\nAirside Business Park\n100 Airside Drive\nMoon Township, PA 15108\nJanuary 31, 2013\nGladiator Holdco LLC\nc/o DC Capital Partners, LLC\n11 Canal Center Plaza, Suite 350\nAlexandria, VA 22314\nAttention:\nThomas J. Campbell\nChairman\nLadies & Gentlemen:\nGladiator Holdco LLC (together with its controlled affiliates, “Receiving Party”) has requested that Michael Baker\nCorporation, a Pennsylvania corporation (the “Company”), furnish Receiving Party information relating to the Company\n(such information, as more specifically defined in Paragraph 2 below, “Confidential Information”). In connection therewith,\nReceiving Party agrees to treat the Confidential Information in accordance with the provisions of this agreement and\ncomply with the other provisions hereof.\n1. Use of Confidential Information. Receiving Party will use the Confidential Information only in connection with\na possible transaction involving the Company (any such transaction, a “Transaction” and such purpose, the “Permitted\nPurpose”). For the avoidance of doubt, a “Transaction” will include any transaction between the Receiving Party and the\nCompany or its stockholders, whether or not done on a consensual basis, provided, however, that this sentence does not\nlimit or otherwise affect Paragraph 5 hereof. Receiving Party will treat the Confidential Information in all material respects\nin the same way that it treats its own non-public proprietary information, but in any case using no less than a reasonable\ndegree of care. Receiving Party will not disclose any Confidential Information publicly or to any third party, except that:\n(a)\nReceiving Party may disclose Confidential Information to its directors, officers, attorneys or\nfinancial advisors (collectively, “Representatives”) whom Receiving Party reasonably determines need to know\nthe information for the Permitted Purpose (it being understood that Receiving Party will inform its\nRepresentatives of the confidential nature of the Confidential Information and will cause its Representatives to\ntreat the Confidential Information in the same manner as Receiving Party is required to treat it under this\nagreement);\n(b) Confidential Information may be furnished to any bank or other debt financing source that\nagrees, in writing, for the benefit of the Company, (i) to maintain the confidentiality of the Confidential Information\nsubstantially to the same extent as provided in Paragraphs 1, 2, 3 and 4 hereof and (ii) that it has no agreement,\narrangement or understanding that would preclude it from providing financing to any party to a possible\nTransaction other than Receiving Party and its Affiliates; and\n(c) Confidential Information may be disclosed in accordance with Paragraph 3 hereof.\n2. Confidential Information. For purposes of this agreement, the term “Confidential Information” includes (a) all\ninformation concerning the Company (whether prepared by the Company or its agents or other representatives and\nirrespective of the form of communication and when such communication was made) that is or has been furnished to\nReceiving Party by or on behalf of the Company, (b) the possible terms of any Transaction, and (c) all notes, analyses,\nreports, compilations, studies, interpretations, summaries or other documents that are prepared by Receiving Party or\nany of its Representatives that contain, reflect or are based on, in whole or in part, any of the foregoing (“Derived\nConfidential Information”), provided, however, that the term “Confidential Information” does not include information that:\n(i) is or becomes generally available to the public other than as a result of the disclosure thereof by\nReceiving Party or any of its agents or other representatives or a breach of this agreement by Receiving Party or\nany of its agents or other representatives;\n(ii) was within Receiving Party’s possession before being furnished to Receiving Party by or on\nbehalf of the Company, provided that the source of the information was not bound by a confidentiality agreement\nwith, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with\nrespect to that information;\n(iii) is or becomes available to Receiving Party on a non-confidential basis from a source other than\nthe Company, provided that the source of the information was not bound by a confidentiality agreement with, or\nother contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to\nthat information; or\n(iv) is independently developed by Receiving Party without use of information disclosed by the\nCompany or otherwise violating Receiving Party’s obligations under this agreement.\n3. Requested or Required Disclosure. (a) If Receiving Party or any of its agents or other representatives is\nrequested or required by oral questions, interrogatories, requests for information or documents in a legal proceeding,\nsubpoena, civil investigative demand or other similar legal process to disclose any of the Confidential Information,\nReceiving Party will provide the Company prompt notice of the request or requirement so that the Company may seek a\nprotective order or other appropriate remedy or waive compliance with the provisions of this agreement. If, in the absence\nof a protective order or other similar remedy, Receiving Party or any of its agents or other representatives is required to\ndisclose Confidential Information in any response to any such request or requirement, Receiving Party or any of its\nagents or other representatives may, without liability under this agreement, disclose to such requesting person only that\nportion of the Confidential Information that is required to be disclosed so long as Receiving Party and each of its agents\nor other representatives use reasonable efforts to preserve the confidentiality of all other Confidential Information,\nincluding without limitation by cooperating with the Company to obtain an appropriate protective order or other reliable\nassurance that confidential treatment will be accorded the other Confidential Information by the requesting person.\n2\n(b) Nothing in this Agreement prohibits Receiving Party or its Representatives from disclosing Confidential\nInformation required by applicable federal or state securities laws to be disclosed in connection with any solicitation of\nproxies or any business combination, acquisition, merger, consolidation or other transaction relating to the Company or\nany of its affiliates, or in connection with preparing beneficial ownership reports required by Sections 13(d) or 13(g) of\nthe Securities Exchange Act of 1934, in each case so long as such transaction does not breach Paragraphs 4 or 5\nhereof.\n4. Securities Laws. Receiving Party hereby (a) acknowledges that it is aware (and that its agents or other\nrepresentatives who are apprised of the matters contemplated hereby have been or will be advised) that federal and\nstate laws prohibit persons with material non-public information about a company obtained directly or indirectly from that\ncompany from purchasing or selling securities of such company, or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such person may purchase or sell such securities,\nand (b) agrees to not to purchase or offer to purchase any securities of the Company while in the possession of any such\ninformation.\n5. Covenants of Receiving Party. (a) As of the date of this agreement, except as previously disclosed to the\nCompany (including by virtue of a public filing), Receiving Party represents and warrants that it does not own beneficially\nor of record any securities entitled to be voted generally in the election of the other Company’s directors or any direct or\nindirect options or other rights to acquire or dispose of any such securities or any economic or voting interests associated\nwith, or the value of which is derived from, any such securities (“Voting Securities”).\n(b) Without limiting the generality or effect of any other provision hereof, Receiving Party agrees that for a period\nending March 31, 2014 (the “Assessment Period”), except within the terms of a specific written request from the\nCompany, neither Receiving Party nor any of its affiliates nor any of their respective representatives or agents acting as a\nprincipal of Receiving Party or such affiliates will propose or publicly announce or otherwise disclose an intent to propose,\nor enter into or agree to enter into, singly or with any other person:\n(i) any form of business combination, acquisition, merger, consolidation or other transaction relating to the\nCompany or any of its affiliates;\n(ii) any form of restructuring, recapitalization or similar transaction with respect to the Company or any of its\naffiliates;\n3\nnor except as aforesaid during the Standstill Period will Receiving Party or any of its agents or other representatives,\nacting as a principal of Receiving Party:\n(iii) acquire, or offer, propose or agree to acquire, by purchase or otherwise, record or beneficial ownership of\nany Voting Securities of the Company;\n(iv) make, or in any way participate in, any solicitation of proxies with respect to any Voting Securities\n(including by the execution of action by written consent of the Company), become a participant in any election\ncontest with respect to the Company, seek to influence any person with respect to any Voting Securities or\ndemand a copy of the Company’s list of stockholders or other books and records;\n(v) participate in or encourage the formation of any partnership, syndicate or other group that owns or seeks\nor offers to acquire beneficial ownership of any Voting Securities or that seeks to affect control of the Company\nor has the purpose of circumventing any provision of this agreement;\n(vi) otherwise act, alone or in concert with others (including by providing financing for another person), to seek\nor to offer to control or influence, in any manner, the Company’s management, Board of Directors or policies;\n(vii) request any waiver or amendment to any provision of this agreement; or\n(viii) make any proposal or other communication designed to, or which could reasonably be expected to,\ncompel the Company to make a public announcement thereof in respect of any matter referred to in this\nagreement.\n(c) In the event that, prior to March 31, 2014, the Company enters into a confidentiality agreement with any third\nparty in connection with possible discussions of a merger, consolidation, sale of stock or assets, tender offer or other\nbusiness combination transaction involving the possible acquisition by such third party of control of, or a sale of all or\nsubstantially all of the assets of, the Company, which agreement provides for a standstill period that ends before March\n31, 2014 or is on terms that are substantially more favorable to the third party than the terms of Paragraph 5(b) hereof, (i)\nthe terms of Paragraph 5(b) hereof will be deemed, without further action, to have been automatically amended so as to\ninclude such shorter standstill period or more favorable terms and (ii) the Company will notify the Receiving Party thereof\nand, if requested, the parties will agree to amendments hereto to reflect such changes. For the avoidance of doubt, a\ndefinitive agreement providing for a transaction of a type referred to in Paragraph 5(b) will not trigger the protections\nprovided in this Paragraph 5(c).\n(d) Receiving Party agrees to vote or cause to be voted its shares of common stock of the Company beneficially\nowned by it or any of its affiliates in respect of the election of directors at the Company’s 2013 annual meeting of\nshareholders (i) in the same proportion as all other shares of common stock are voted by other shareholders or (ii) at\nReceiving Party’s election, as recommended by the Company’s Board of Directors.\n4\n(e) Notwithstanding anything to the contrary set forth in the foregoing provisions of this Paragraph 5, neither\nReceiving Party nor any of its applicable affiliates will be precluded from voting the shares of common stock of the\nCompany beneficially owned by it in opposition to any transaction involving the sale or acquisition of all or a controlling\nportion of the Company’s equity securities or all or substantially all of the Company’s assets (whether by merger,\nconsolidation, business combination, tender or exchange offer, recapitalization, restructuring, sale, equity issuance or\notherwise).\n6. Termination of Discussions. The Company will not be under any contractual or legal obligation of any kind\nwhatsoever to furnish Confidential Information to Receiving Party and reserves the right, in its sole discretion, to\nterminate providing Confidential Information at any time. In that case, on the request of the Company for any or no\nreason, Receiving Party will, and will cause its Representatives to, promptly deliver to the Company or destroy all\nConfidential Information, including all Derived Confidential Information (and all copies thereof and extracts therefrom),\nprovided that (i) neither the Receiving Party nor any of its Representatives will be required to destroy any electronic copy\nof any Confidential Information that is created pursuant to such person’s standard electronic backup and archival\nprocedures if (x) personnel whose functions are not primarily information technology in nature do not have access to\nsuch retained copies and (y) personnel whose functions are primarily information technology in nature have access to\nsuch copies only as reasonably necessary for the performance of their information technology duties (e.g., for purposes\nof system recovery), and (ii) the Receiving Party and its Representatives may each retain (A) one copy of any\nConfidential Information to the extent required to defend or maintain any litigation relating to this Agreement or the\nConfidential Information, or established document retention policies and (B) such copies of the Confidential Information to\nthe extent required to comply with requirements of applicable law. Compliance with the preceding sentence will be\ncertified in writing by an authorized officer of Receiving Party within five calendar days of the delivery of the notice.\nNotwithstanding the return or destruction of the Confidential Information, each party will continue to be bound by its\nobligations of confidentiality and other obligations under this agreement.\n7. Coordination of Contacts. Prior to March 31, 2014, Receiving Party will not, and will cause its agents and\nother representatives not to, except within the terms of a specific written request from the Company or any of the\nCompany’s authorized representatives, initiate contact with any director, officer, employee or person known to Receiving\nParty to be a securityholder, partner, joint venturer or contracting party of the Company in connection with any matter\nreferred to in this agreement. The parties agree that all (a) communications regarding the matters herein contemplated,\n(b) requests for information, and (c) discussions or questions regarding procedures with respect to the matters herein\ncontemplated, will be first submitted or directed to the individual specified on the signature page to this agreement.\n8. No Warranty of Accuracy. Receiving Party acknowledges that neither the Company nor any of its agents or\nrepresentatives makes any representation or warranty as to the accuracy or completeness of any the Confidential\nInformation furnished to Receiving Party. Neither the Company nor any of its agents or other representatives will have\nany liability to Receiving Party or its agents or other representatives resulting from the use of the Confidential Information.\n5\n9. Miscellaneous. No failure or delay by any party in exercising any right, power or privilege under this\nagreement will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further\nexercise of any right, power or privilege under this agreement. No provision of this agreement may be waived, amended\nor assigned except, as to any waiver or amendment, with the written consent of each party in its sole discretion, which\nconsent specifically refers to the provision waived or amended. If any provision of this agreement is deemed to be invalid,\nillegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this agreement will not in\nany way be affected or impaired thereby. This agreement represents the entire understanding of the parties with respect\nto the matters referred to in this letter agreement and supersedes all prior or contemporaneous understandings, written or\noral, between the parties with respect to such matters.\n10. Governing Law. This agreement is governed by, and will be construed in accordance with, the internal laws\nof the State of Pennsylvania, without giving effect to the principles of conflict of laws thereof. Each party submits to the\nexclusive jurisdiction of the federal or state courts in Pittsburgh, Pennsylvania (the “Selected Court”) in respect of any\naction or proceeding arising out of this agreement, agrees that venue for any action on this agreement will be properly\nlaid in the Selected Court and waives any objection to the bringing of any action or proceeding in the venue.\n11. Injunctive Relief. Each party acknowledges and agrees that money damages would not be a sufficient\nremedy for any breach of this agreement by another party or any of its affiliates, agents or other representatives and that\nthe non-breaching party will be entitled to equitable relief, including injunction and specific performance, as a remedy for\nany breach (and the party will not raise the defense of an adequate remedy at law) without the party of a bond or other\nform of assurance or surety. Such remedies will be in addition to all other remedies available at law or equity.\n12. Counterparts. This agreement may be executed in two or more counterparts, each of which will be deemed\nan original, but all of which together will constitute one and the same instrument.\n13. Termination. This agreement will terminate without further action two years after the date first above written.\nThe termination will not, however, affect the liability of any party for any prior breach of any provision hereof.\n14. Certain Definitions. In addition to the terms defined elsewhere herein, for purposes of this agreement, (a) the\nterm “affiliate” has the meaning set forth in Rule 12b-2 promulgated by the Securities and Exchange Commission under\nthe Securities Exchange Act of 1934 and (b) the term “person” means any individual or legal entity.\n[SIGNATURE PAGE FOLLOWS]\n6\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the\nundersigned, whereupon this agreement will become a binding agreement among the parties.\nVery truly yours,\nMichael Baker Corporation\nBy: /s/ H. James McKnight\nName: H. James McKnight\nTitle: Executive VP & CLO\nContact person for Paragraph 7:\nName: H. James McKnight\nTitle: Executive VP & CLO\nEmail: jmcknight@mbakercorp.com\nAccepted and agreed as of the date first written above:\nGladiator Holdco LLC\nBy: /s/ Thomas J. Campbell\nName: Thomas J. Campbell\nTitle: Chairman\nContact person for Paragraph 7:\nName:Thomas J. Campbell\nTitle:Chairman\nEmail:\ntcampbell@dccapitalpartners.com\n7	Michael Baker Corporation\nAirside Business Park\n100 Airside Drive\nMoon Township, PA 15108\nJanuary 31, 2013\nGladiator Holdco LLC\nc/o DC Capital Partners, LLC\n11 Canal Center Plaza, Suite 350\nAlexandria, VA 22314\nA ttention: Thomas]. Campbell\nChairman\nLadies & Gentlemen:\nGladiator Holdco LLC (together with its controlled affiliates, “Receiving Par_ty”) has requested that Michael Baker\nCorporation, a Pennsylvania corporation (the “Company”), furnish Receiving Party information relating to the Company\n(such information, as more specifically defined in Paragraph 2 below, “Confidential Information”). In connection therewith,\nReceiving Party agrees to treat the Confidential Information in accordance with the provisions of this agreement and\ncomply with the other provisions hereof.\n1. Use of Confidential Information. Receiving Party will use the Confidential Information only in connection with\na possible transaction involving the Company (any such transaction, a 'Transaction”and such purpose, the “Permitted\nPurpose”). Forthe avoidance ofdoubt, a ’Transaction”wi|| include any transaction between the Receiving Party and the\nCompany or its stockholders, whether or notdone on a consensual basis, provided, however, thatthis sentence does not\nlimit or otherwise affect Paragraph 5 hereof. Receiving Party will treat the Confidential Information in all material respects\nin the same way that it treats its own non-public proprietary information, but in any case using no less than a reasonable\ndegree of care. Receiving Party will not disclose any Confidential Information publicly orto any third party, except that:\n(a) Receiving Party may disclose Confidential Information to its directors, officers, attorneys or\nfinancial advisors (collectively, “Representatives”) whom Receiving Party reasonably determines need to know\nthe information forthe Permitted Purpose (it being understood that Receiving Party will inform its\nRepresentatives of the confidential nature of the Confidential Information and will cause its Representatives to\ntreatthe Confidential Information in the same manner as Receiving Party is required to treat it underthis\nagreement);\n(b) Confidential Information may be furnished to any bank or other debt financing source that\nagrees, in writing, forthe benefit of the Company, (i) to maintain the confidentiality of the Confidential Information\nsubstantially to the same extent as provided in Paragraphs 1, 2, 3 and 4 hereofand (ii) that it has no agreement,\narrangement or understanding that would preclude it from providing financing to any party to a possible\nTransaction other than Receiving Party and its Affiliates; and\n(c) Confidential Information may be disclosed in accordance with Paragraph 3 hereof.\n2. Confidential Information. For purposes of this agreement, the term “Confidential Information” includes (a) all\ninformation concerning the Company (whether prepared by the Company or its agents or other representatives and\nirrespective ofthe form of communication and when such communication was made) that is or has been furnished to\nReceiving Party by or on behalf of the Company, (b) the possible terms ofany Transaction, and (c) all notes, analyses,\nreports, compilations, studies, interpretations, summaries or other documents that are prepared by Receiving Party or\nany of its Representatives that contain, reflect or are based on, in whole or in part, any of the foregoing (“Derived\nConfidential Information”), provided, however, that the term “Confidential Information” does not include information that:\n(i) is or becomes generally available to the public other than as a result of the disclosure thereof by\nReceiving Party or any of its agents or other representatives or a breach of this agreement by Receiving Party or\nany of its agents or other representatives;\n(ii) was within Receiving Party's possession before being furnished to Receiving Party by or on\nbehalf of the Company, provided that the source of the information was not bound by a confidentiality agreement\nwith, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with\nrespect to that information;\n(iii) is or becomes available to Receiving Party on a non-confidential basis from a source otherthan\nthe Company, provided that the source of the information was not bound by a confidentiality agreement with, or\nother contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to\nthat information; or\n(iv) is independently developed by Receiving Party without use of information disclosed by the\nCompany or otherwise violating Receiving Party's obligations under this agreement.\n3. Reguested or Reguired Disclosure. (a) If Receiving Party or any of its agents or other representatives is\nrequested or required by oral questions, interrogatories, requests for information or documents in a legal proceeding,\nsubpoena, civil investigative demand or other similar legal process to disclose any of the Confidential Information,\nReceiving Party will provide the Company prompt notice of the request or requirement so that the Company may seek a\nprotective order or other appropriate remedy or waive compliance with the provisions of this agreement. If, in the absence\nof a protective order or other similar remedy, Receiving Party or any of its agents or other representatives is required to\ndisclose Confidential Information in any response to any such request or requirement, Receiving Party or any of its\nagents or other representatives may, without liability underthis agreement, disclose to such requesting person only that\nportion of the Confidential Information that is required to be disclosed so long as Receiving Party and each of its agents\nor other representatives use reasonable efforts to preserve the confidentiality of all other Confidential Information,\nincluding without limitation by cooperating with the Company to obtain an appropriate protective order or other reliable\nassurance that confidential treatment will be accorded the other Confidential Information by the requesting person.\n(b) Nothing in this Agreement prohibits Receiving Party or its Representatives from disclosing Confidential\nInformation required by applicable federal or state securities laws to be disclosed in connection with any solicitation of\nproxies or any business combination, acquisition, merger, consolidation or other transaction relating to the Company or\nany of its affiliates, or in connection with preparing beneficial ownership reports required by Sections 13(d) or 13(g) of\nthe Securities Exchange Actof 1934, in each case so long as such transaction does not breach Paragraphs 4 or 5\nhereof.\n4. Securities Laws. Receiving Party hereby (a) acknowledges that it is aware (and that its agents or other\nrepresentatives who are apprised ofthe matters contemplated hereby have been or will be advised) that federal and\nstate laws prohibit persons with material non-public information about a company obtained directly or indirectly from that\ncompany from purchasing or selling securities ofsuch company, orfrom communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such person may purchase or sell such securities,\nand (b) agrees to not to purchase or offerto purchase any securities of the Company while in the possession of any such\ninformation.\n5. Covenants of Receiving Par_ty. (a) As of the date of this agreement, exceptas previously disclosed to the\nCompany (including by virtue ofa public filing), Receiving Party represents and warrants that itdoes not own beneficially\nor of record any securities entitled to be voted generally in the election of the other Company's directors or any direct or\nindirect options or other rights to acquire or dispose of any such securities or any economic or voting interests associated\nwith, or the value of which is derived from, any such securities ("Voting Securities”).\n(b) Without limiting the generality or effect of any other provision hereof, Receiving Party agrees that for a period\nending March 31, 2014 (the “Assessment Period”), except within the terms of a specific written request from the\nCompany, neither Receiving Party nor any of its affiliates nor any of their respective representatives or agents acting as a\nprincipal of Receiving Party or such affiliates will propose or publicly announce or otherwise disclose an intent to propose,\nor enter into or agree to enter into, singly or with any other person:\n(i) any form of business combination, acquisition, merger, consolidation or othertransaction relating to the\nCompany or any of its affiliates;\n(ii) any form of restructuring, recapitalization or similartransaction with respect to the Company or any of its\naffiliates;\nnor except as aforesaid during the Standstill Period will Receiving Party or any of its agents or other representatives,\nacting as a principal of Receiving Party:\n(iii) acquire, or offer, propose or agree to acquire, by purchase or otherwise, record or beneficial ownership of\nany Voting Securities of the Company;\n(iv) make, or in any way participate in, any solicitation of proxies with respect to any Voting Securities\n(including by the execution of action by written consent of the Company), become a participant in any election\ncontest with respect to the Company, seek to influence any person with respect to any Voting Securities or\ndemand a copy of the Company's list of stockholders or other books and records;\n(v) participate in or encourage the formation of any partnership, syndicate or other group that owns or seeks\nor offers to acquire beneficial ownership of any Voting Securities or that seeks to affect control of the Company\nor has the purpose of circumventing any provision of this agreement;\n(vi) otherwise act, alone or in concert with others (including by providing financing for another person), to seek\norto offer to control or influence, in any manner, the Company's management, Board of Directors or policies;\n(vii) request any waiver or amendment to any provision of this agreement; or\n(viii) make any proposal or other communication designed to, or which could reasonably be expected to,\ncompel the Company to make a public announcement thereof in respect of any matter referred to in this\nagreement.\n(c) In the event that, priorto March 31, 2014, the Company enters into a confidentiality agreement with any third\nparty in connection with possible discussions of a merger, consolidation, sale of stock or assets, tender offer or other\nbusiness combination transaction involving the possible acquisition by such third party of control of, or a sale of all or\nsubstantially all of the assets of, the Company, which agreement provides for a standstill period that ends before March\n31,2014 or is on terms that are substantially more favorable to the third party than the terms of Paragraph 5(b) hereof, (i)\nthe terms of Paragraph 5(b) hereof will be deemed, withoutfurther action, to have been automatically amended so as to\ninclude such shorter standstill period or more favorable terms and (ii) the Company will notify the Receiving Party thereof\nand, if requested, the parties will agree to amendments hereto to reflectsuch changes. Forthe avoidance ofdoubt, a\ndefinitive agreement providing for a transaction of a type referred to in Paragraph 5(b) will not triggerthe protections\nprovided in this Paragraph 5(c).\n(d) Receiving Party agrees to vote or cause to be voted its shares of common stock of the Company beneficially\nowned by it or any of its affiliates in respect of the election of directors atthe Company's 2013 annual meeting of\nshareholders (i) in the same proportion as all other shares of common stock are voted by other shareholders or (ii) at\nReceiving Party's election, as recommended by the Company's Board of Directors.\n(e) Notwithstanding anything to the contrary set forth in the foregoing provisions of this Paragraph 5, neither\nReceiving Party nor any of its applicable affiliates will be precluded from voting the shares of common stock of the\nCompany beneficially owned by it in opposition to any transaction involving the sale or acquisition of all or a controlling\nportion of the Company's equity securities or all or substantially all ofthe Company's assets (whether by merger,\nconsolidation, business combination, tender or exchange offer, recapitalization, restructuring, sale, equity issuance or\notherwise).\n6. Termination of Discussions. The Company will not be under any contractual or legal obligation of any kind\nwhatsoeverto furnish Confidential Information to Receiving Party and reserves the right, in its sole discretion, to\nterminate providing Confidential Information at any time. In that case, on the request of the Company for any or no\nreason, Receiving Party will, and will cause its Representatives to, promptly deliverto the Company or destroy all\nConfidential Information, including all Derived Confidential Information (and all copies thereof and extracts therefrom),\nprovided that (i) neither the Receiving Party nor any of its Representatives will be required to destroy any electronic copy\nof any Confidential Information that is created pursuant to such person's standard electronic backup and archival\nprocedures if (x) personnel whose functions are not primarily information technology in nature do not have access to\nsuch retained copies and (y) personnel whose functions are primarily information technology in nature have access to\nsuch copies only as reasonably necessary forthe performance of their information technology duties (e.g., for purposes\nofsystem recovery), and (ii) the Receiving Party and its Representatives may each retain (A) one copy ofany\nConfidential Information to the extent required to defend or maintain any litigation relating to this Agreement or the\nConfidential Information, or established document retention policies and (B) such copies of the Confidential Information to\nthe extent required to comply with requirements of applicable law. Compliance with the preceding sentence will be\ncertified in writing by an authorized officer of Receiving Party within five calendar days of the delivery of the notice.\nNotwithstanding the return or destruction of the Confidential Information, each party will continue to be bound by its\nobligations of confidentiality and other obligations underthis agreement.\n7. Coordination ofContacts. Priorto March 31, 2014, Receiving Party will not, and will cause its agents and\nother representatives not to, except within the terms of a specific written request from the Company or any of the\nCompany's authorized representatives, initiate contact with any director, officer, employee or person known to Receiving\nParty to be a securityholder, partner, joint venturer or contracting party of the Company in connection with any matter\nreferred to in this agreement. The parties agree that all (a) communications regarding the matters herein contemplated,\n(b) requests for information, and (c) discussions or questions regarding procedures with respectto the matters herein\ncontemplated, will be first submitted or directed to the individual specified on the signature page to this agreement.\n8. No Warranty of Accuracy. Receiving Party acknowledges that neitherthe Company nor any of its agents or\nrepresentatives makes any representation or warranty as to the accuracy or completeness of any the Confidential\nInformation furnished to Receiving Party. Neither the Company nor any of its agents or other representatives will have\nany liability to Receiving Party or its agents or other representatives resulting from the use of the Confidential Information.\n9. Miscellaneous. No failure or delay by any party in exercising any right, power or privilege underthis\nagreement will operate as a waiverthereof, nor will any single or partial exercise thereof preclude any other orfurther\nexercise of any right, power or privilege underthis agreement. No provision of this agreement may be waived, amended\nor assigned except, as to any waiver or amendment, with the written consent of each party in its sole discretion, which\nconsent specifically refers to the provision waived or amended. If any provision of this agreement is deemed to be invalid,\nillegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this agreement will not in\nany way be affected or impaired thereby. This agreement represents the entire understanding ofthe parties with respect\nto the matters referred to in this letter agreementand supersedes all prior or contemporaneous understandings, written or\noral, between the parties with respectto such matters.\n10. Governing Law. This agreement is governed by, and will be construed in accordance with, the internal laws\nof the State of Pennsylvania, without giving effect to the principles of conflict of laws thereof. Each party submits to the\nexclusive jurisdiction of the federal or state courts in Pittsburgh, Pennsylvania (the “Selected Court”) in respectofany\naction or proceeding arising out of this agreement, agrees thatvenue for any action on this agreement will be properly\nlaid in the Selected Court and waives any objection to the bringing of any action or proceeding in the venue.\n11. Injunctive Relief. Each party acknowledges and agrees that money damages would not be a sufficient\nremedy for any breach of this agreement by another party or any of its affiliates, agents or other representatives and that\nthe non-breaching party will be entitled to equitable relief, including injunction and specific performance, as a remedy for\nany breach (and the party will not raise the defense of an adequate remedy at law) withoutthe party of a bond or other\nform ofassurance or surety. Such remedies will be in addition to all other remedies available at law or equity.\n12. Counterparts. This agreement may be executed in two or more counterparts, each of which will be deemed\nan original, but all of which together will constitute one and the same instrument.\n13. Termination. This agreement will terminate without further action two years after the date first above written.\nThe termination will not, however, affect the liability of any party for any prior breach of any provision hereof.\n14. Certain Definitions. In addition to the terms defined elsewhere herein, for purposes of this agreement, (a) the\nterm “affiliate” has the meaning setforth in Rule 12b-2 promulgated by the Securities and Exchange Commission under\nthe Securities Exchange Act of 1934 and (b) the term “person” means any individual or legal entity.\n[SIGNATURE PAGE FOLLOWS]\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the\nundersigned, whereupon this agreementwill become a binding agreementamong the parties.\nVery truly yours,\nMichael Baker Corporation\nBy: /s/ H. James McKnight\name: . ames c nig\nTitle: ExecufiveVPZSECEU\nContact person for Paragraph 7:\nName: H. James McKnight\nTitle: Execufive V F’ 82 (ZEU —\nEmail: W\nAccepted and agreed as of the date first written above:\nGladiator Holdco LLC\nBy: /s/ ThomasJ. Campbell\name: omas . amp e\nTitle: Chairman\nContact person for Paragraph 7:\nNmnThomas J. Campbell\nTitletw\nE l:\nmalltcampbell@ dccapitalpartnerscom	Michael Baker Corporation\nAirside Business Park\n100 Airside Drive\nMoon Township, PA 15108\nJ anuary 31, 2013\nGladiator Holdco LLC\nc/o DC Capital Partners, LLC\n11 Canal Center Plaza, Suite 350\nAlexandria, VA 22314\nAttention:\nThomas J. Campbell\nChairman\nLadies & Gentlemen:\nGladiator Holdco LLC (together with its controlled affiliates, "Receiving Party") has requested that Michael Baker\nCorporation, a Pennsylvania corporation (the "Company"), furnish Receiving arty information relating to the Company\n(such information, as more specifically defined in Paragraph 2 below, "Confidential Information"). In connection therewith,\nReceiving arty agrees to treat the Confidentia Information in accordance with the provisions of this agreement and\ncomply with the other provisions hereof.\n1. Use of Confidentia Information. Receiving Party will use the Confidentia Information only in connection with\na possible transaction involving the Company (any such transaction, a "Transaction" and such purpose, the "Permitted\nPurpose"). For the avoidance of doubt, a "Transaction" will include any transaction between the Receiving Party and the\nCompany or its stockholders, whether or not done on a consensual basis, provided, however, that this sentence does not\nlimit or otherwise affect aragraph 5 hereof. Receiving arty will treat the Confidentia Information in all material respects\nin the same way that it treats its own non-public proprietary information, but in any case using no less than a reasonable\ndegree of care. Receiving Party will not disclose any Confidential Information publicly or to any third party, except that:\n(a)\nReceiving Party may disclose Confidential Information to its directors, officers, attorneys or\nfinancial advisors (collectively, "Representatives") whom Receiving arty reasonably determines need to know\nthe information for the Permitted Purpose (it being understood that Receiving Party will inform its\nRepresentatives of the confidential nature of the Confidential Information and will cause its Representatives to\ntreat the Confidential Information in the same manner as Receiving Party is required to treat it under this\nagreement);\n(b)\nConfidential Information may be furnished to any bank or other debt financing source that\nagrees, in writing, for the benefit of the Company, (i) to maintain the confidentiality of the Confidentia Information\nsubstantially to the same extent as provided in Paragraphs 1, 2, 3 and 4 hereof and (ii) that it has no agreement,\narrangement or understanding that would preclude it from providing financing to any party to a possible\nTransaction other than Receiving arty and its Affiliates; and\n(c)\nConfidential Information may be disclosed in accordance with Paragraph 3 hereof.\n2. Confidentia Information. For purposes of this agreement, the term "Confidential Information" includes (a) all\ninformation concerning the Company (whether prepared by the Company or its agents or other representatives and\nirrespective of the form of communication and when such communication was made) that is or has been furnished to\nReceiving arty by or on behalf of the Company, (b) the possible terms of any Transaction, and (c) all notes, analyses,\nreports, compilations, studies, interpretations, summaries or other documents that are prepared by Receiving Party or\nany of its Representatives that contain, reflect or are based on, in whole or in part, any of the foregoing ("Derived\nConfidential Information") provided, however, that the term "Confidential Information" does not include information that:\n(i)\nis or becomes generally available to the public other than as a result of the disclosure thereof by\nReceiving Party or any of its agents or other representatives or a breach of this agreement by Receiving arty or\nany of its agents or other representatives;\n(ii)\nwas within Receiving Party's possession before being furnished to Receiving arty by or on\nbehalf of the Company, provided that the source of the information was not bound by a confidentiality agreement\nwith, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with\nrespect to that information;\n(iii) is or becomes available to Receiving Party on a non-confidential basis from a source other than\nthe Company, provided that the source of the information was not bound by a confidentiality agreement with, or\nother contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to\nthat information; or\n(iv) is independently developed by Receiving Party without use of information disclosed by the\nCompany or otherwise violating Receiving Party's obligations under this agreement\n3.\nRequested or Required Disclosure. (a) If Receiving Party or any of its agents or other representatives is\nrequested or required by oral questions, interrogatories, requests for information or documents in a legal proceeding,\nsubpoena, civil investigative demand or other similar legal process to disclose any of the Confidential Information,\nReceiving arty will provide the Company prompt notice of the request or requirement so that the Company may seek a\nprotective order or other appropriate remedy or waive compliance with the provisions of this agreement. If, in the absence\nof a protective order or other similar remedy, Receiving Party or any of its agents or other representatives is required to\ndisclose Confidential Information in any response to any such request or requirement, eceiving Party or any of its\nagents or other representatives may, without liability under this agreement, disclose to such requesting person only that\nportion of the Confidentia Information that is required to be disclosed so long as Receiving Party and each of its agents\nor other representatives use reasonable efforts to preserve the confidentiality of all other Confidential Information,\nincluding without limitation by cooperating with the Company to obtain an appropriate protective order or other reliable\nassurance that confidential treatment will be accorded the other Confidential Information by the requesting person.\n2\n(b) Nothing in this Agreement prohibits Receiving arty or its Representatives from disclosing Confidential\nInformation required by applicable federal or state securities laws to be disclosed in connection with any solicitation of\nproxies or any business combination, acquisition, merger, consolidation or other transaction relating to the Company or\nany of its affiliates, or in connection with preparing beneficial ownership reports required by Sections 13(d) or 13(g) of\nthe Securities E xchange Act of 1934, in each case so long as such transaction does not breach Paragraphs 4 or 5\nhereof.\n4. Securities Laws. Receiving Party hereby (a) acknowledges that it is aware (and that its agents or other\nrepresentatives who are apprised of the matters contemplated hereby have been or will be advised) that federal and\nstate laws prohibit persons with material non-public information about a company obtained directly or indirectly from that\ncompany from purchasing or selling securities of such company, or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such person may purchase or sell such securities,\nand (b) agrees to not to purchase or offer to purchase any securities of the Company while in the possession of any such\ninformation.\n5. Covenants of Receiving Party. (a) As of the date of this agreement, except as previously disclosed to the\nCompany (including by virtue of a public filing), Receiving Party represents and warrants that it does not own beneficially\nor of record any securities entitled to be voted generally in the election of the other Company's directors or any direct or\nindirect options or other rights to acquire or dispose of any such securities or any economic or voting interests associated\nwith, or the value of which is derived from, any such securities ("Voting Securities").\n(b) Without limiting the generality or effect of any other provision hereof, Receiving arty agrees that for a period\nending March 31, 2014 (the "Assessment Period"), except within the terms of a specific written request from the\nCompany, neither Receiving Party nor any of its affiliates nor any of their respective representatives or agents acting as a\nprincipal of Receiving Party or such affiliates will propose or publicly announce or otherwise disclose an intent to propose,\nor enter into or agree to enter into, singly or with any other person:\n(i) any form of business combination, acquisition, merger, consolidation or other transaction relating to the\nCompany or any of its affiliates;\n(ii) any form of restructuring, recapitalization or similar transaction with respect to the Company or any of its\naffiliates;\n3\nnor except as aforesaid during the Standstill eriod will Receiving Party or any of its agents or other representatives,\nacting as a principa of Receiving Party:\n(iii acquire, or offer, propose or agree to acquire, by purchase or otherwise, record or beneficial ownership of\nany Voting Securities of the Company;\n(iv) make, or in any way participate in, any solicitation of proxies with respect to any Voting Securities\n(including by the execution of action by written consent of the Company), become a participant in any election\ncontest with respect to the Company, seek to influence any person with respect to any Voting Securities or\ndemand a copy of the Company's list of stockholders or other books and records;\n(v) participate in or encourage the formation of any partnership, syndicate or other group that owns or seeks\nor offers to acquire beneficial ownership of any Voting Securities or that seeks to affect control of the Company\nor has the purpose of circumventing any provision of this agreement;\n(vi) otherwise act, alone or in concert with others (including by providing financing for another person), to seek\nor to offer to control or influence, in any manner, the Company's management, Board of Directors or policies;\n(vii) request any waiver or amendment to any provision of this agreement; or\n(viii) make any proposa or other communication designed to, or which could reasonably be expected to,\ncompel the Company to make a public announcement thereof in respect of any matter referred to in this\nagreement\n(c) In the event that, prior to March 31, 2014, the Company enters into a confidentiality agreement with any third\nparty in connection with possible discussions of a merger, consolidation, sale of stock or assets, tender offer or other\nbusiness combination transaction involving the possible acquisition by such third party of control of, or a sale of all or\nsubstantially all of the assets of, the Company, which agreement provides for a standstill period that ends before March\n31, 2014 or is on terms that are substantially more favorable to the third party than the terms of Paragraph 5(b) hereof, (i)\nthe terms of Paragraph 5(b) hereof will be deemed, without further action, to have been automatically amended so as to\ninclude such shorter standstill period or more favorable terms and (ii) the Company wil notify the R eceiving Party thereof\nand, if requested, the parties will agree to amendments hereto to reflect such changes. F or the avoidance of doubt, a\ndefinitive agreement providing for a transaction of a type referred to in Paragraph 5(b) wil not trigger the protections\nprovided in this Paragraph 5(c).\n(d) Receiving arty agrees to vote or cause to be voted its shares of common stock of the Company beneficially\nowned by it or any of its affiliates in respect of the election of directors at the Company's 2013 annual meeting of\nshareholders (i) in the same proportion as all other shares of common stock are voted by other shareholders or (ii) at\nReceiving arty's election, as recommended by the Company's Board of Directors.\n4\n(e) Notwithstanding anything to the contrary set forth in the foregoing provisions of this Paragraph 5, neither\nReceiving arty nor any of its applicable affiliates will be precluded from voting the shares of common stock of the\nCompany beneficially owned by it in opposition to any transaction involving the sale or acquisition of all or a controlling\nportion of the Company's equity securities or all or substantially all of the Company's assets (whether by merger,\nconsolidation, business combination, tender or exchange offer, recapitalization, restructuring, sale, equity issuance or\notherwise).\n6.\nTermination of Discussions The Company will not be under any contractua or legal obligation of any kind\nwhatsoever to furnish Confidential Information to Receiving Party and reserves the right, in its sole discretion, to\nterminate providing Confidential Information at any time. In that case, on the request of the Company for any or no\nreason, Receiving arty will, and will cause its Representatives to, promptly deliver to the Company or destroy all\nConfidential Information, including all Derived Confidential Information (and all copies thereof and extracts therefrom),\nprovided that (i) neither the Receiving Party nor any of its Representatives will be required to destroy any electronic copy\nof any Confidential Information that is created pursuant to such person's standard electronic backup and archiva\nprocedures if (x) personne whose functions are not primarily information technology in nature do not have access to\nsuch retained copies and (y) personnel whose functions are primarily information technology in nature have access to\nsuch copies only as reasonably necessary for the performance of their information technology duties (e.g., for purposes\nof system recovery), and (ii) the Receiving arty and its Representatives may each retain (A) one copy of any\nConfidential Information to the extent required to defend or maintain any litigation relating to this Agreement or the\nConfidentia Information, or established document retention policies and (B) such copies of the Confidentia Information to\nthe extent required to comply with requirements of applicable law. Compliance with the preceding sentence will be\ncertified in writing by an authorized officer of Receiving Party within five calendar days of the delivery of the notice.\nNotwithstanding the return or destruction of the Confidential Information, each party will continue to be bound by its\nobligations of confidentiality and other obligations under this agreement.\n7. Coordination of Contacts. Prior to March 31, 2014, Receiving Party will not, and wil cause its agents and\nother representatives not to, except within the terms of a specific written request from the Company or any of the\nCompany's authorized representatives, initiate contact with any director, officer, employee or person known to Receiving\nParty to be a securityholder, partner, joint venturer or contracting party of the Company in connection with any matter\nreferred to in this agreement The parties agree that all (a) communications regarding the matters herein contemplated,\n(b) requests for information, and (c) discussions or questions regarding procedures with respect to the matters herein\ncontemplated, will be first submitted or directed to the individual specified on the signature page to this agreement.\n8. No Warranty of Accuracy. Receiving Party acknowledges that neither the Company nor any of its agents or\nrepresentatives makes any representation or warranty as to the accuracy or completeness of any the Confidential\nInformation furnished to Receiving Party. Neither the Company nor any of its agents or other representatives will have\nany liability to eceiving arty or its agents or other representatives resulting from the use of the Confidentia Information.\n5\n9. Miscellaneous. No failure or delay by any party in exercising any right, power or privilege under this\nagreement will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further\nexercise of any right, power or privilege under this agreement. No provision of this agreement may be waived, amended\nor assigned except, as to any waiver or amendment, with the written consent of each party in its sole discretion, which\nconsent specifically refers to the provision waived or amended. If any provision of this agreement is deemed to be invalid,\nillegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this agreement will not in\nany way be affected or impaired thereby. This agreement represents the entire understanding of the parties with respect\nto the matters referred to in this letter agreement and supersedes all prior or contemporaneous understandings, written or\noral, between the parties with respect to such matters.\n10. Governing Law. This agreement is governed by, and wil be construed in accordance with, the internal laws\nof\nthe State of Pennsylvania, without giving effect to the principles of conflict of laws thereof. Each party submits to the\nexclusive jurisdiction of the federal or state courts in Pittsburgh, Pennsylvania (the "Selected Court") in respect of any\naction or proceeding arising out of this agreement, agrees that venue for any action on this agreement will be properly\nlaid in the Selected Court and waives any objection to the bringing of any action or proceeding in the venue.\n11. Injunctive Relief. Each party acknowledges and agrees that money damages would not be a sufficient\nremedy for any breach of this agreement by another party or any of its affiliates, agents or other representatives and that\nthe non-breaching party will be entitled to equitable relief, including injunction and specific performance, as a remedy for\nany breach (and the party wil not raise the defense of an adequate remedy at law) without the party of a bond or other\nform of assurance or surety. Such remedies will be in addition to all other remedies available at law or equity.\n12. Counterparts. This agreement may be executed in two or more counterparts, each of which will be deemed\nan original, but all of which together will constitute one and the same instrument.\n13. Termination. This agreement will terminate without further action two years after the date first above written.\nThe termination will not, however, affect the liability of any party for any prior breach of any provision hereof.\n14. Certain Definitions In addition to the terms defined elsewhere herein, for purposes of this agreement, (a) the\nterm "affiliate" has the meaning set forth in Rule 12b-2 promulgated by the Securities and Exchange Commission under\nthe Securities E xchange Act of 1934 and (b) the term "person" means any individual or legal entity.\n[SIGNATURE PAGE FOLLOWS]\n6\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the\nundersigned, whereupon this agreement will become a binding agreement among the parties\nVery truly yours,\nMichael Baker Corporation\nBy: /s/ H. James McK (night\nName: H. James MCK night\nTitle:\nExecutive VP CLO\nContact person for Paragraph 7:\nName: H. James McK night\nTitle:\nExecuuve VP CLU\nEmail: jmcknight@mbakercorp.com\nAccepted and agreed as of the date first written above:\nGladiator Holdco LLC\nBy: /s/ Thomas J. Campbell\nName: Thomas J. Campbell\nTitle: Chairman\nContact person for Paragraph 7:\nName:homas J. Campbell\nTitleChairman\nEmail:\ncampbell@dccapitalpartners.com\n7	Michael Baker Corporation\nAirside Business Park\n100 Airside Drive\nMoon Township, PA 15108\nJanuary 31, 2013\nGladiator Holdco LLC\nc/o DC Capital Partners, LLC\n11 Canal Center Plaza, Suite 350\nAlexandria, VA 22314\nAttention:\nThomas J. Campbell\nChairman\nLadies & Gentlemen:\nGladiator Holdco LLC (together with its controlled affiliates, “Receiving Party”) has requested that Michael Baker\nCorporation, a Pennsylvania corporation (the “Company”), furnish Receiving Party information relating to the Company\n(such information, as more specifically defined in Paragraph 2 below, “Confidential Information”). In connection therewith,\nReceiving Party agrees to treat the Confidential Information in accordance with the provisions of this agreement and\ncomply with the other provisions hereof.\n1. Use of Confidential Information. Receiving Party will use the Confidential Information only in connection with\na possible transaction involving the Company (any such transaction, a “Transaction” and such purpose, the “Permitted\nPurpose”). For the avoidance of doubt, a “Transaction” will include any transaction between the Receiving Party and the\nCompany or its stockholders, whether or not done on a consensual basis, provided, however, that this sentence does not\nlimit or otherwise affect Paragraph 5 hereof. Receiving Party will treat the Confidential Information in all material respects\nin the same way that it treats its own non-public proprietary information, but in any case using no less than a reasonable\ndegree of care. Receiving Party will not disclose any Confidential Information publicly or to any third party, except that:\n(a)\nReceiving Party may disclose Confidential Information to its directors, officers, attorneys or\nfinancial advisors (collectively, “Representatives”) whom Receiving Party reasonably determines need to know\nthe information for the Permitted Purpose (it being understood that Receiving Party will inform its\nRepresentatives of the confidential nature of the Confidential Information and will cause its Representatives to\ntreat the Confidential Information in the same manner as Receiving Party is required to treat it under this\nagreement);\n(b) Confidential Information may be furnished to any bank or other debt financing source that\nagrees, in writing, for the benefit of the Company, (i) to maintain the confidentiality of the Confidential Information\nsubstantially to the same extent as provided in Paragraphs 1, 2, 3 and 4 hereof and (ii) that it has no agreement,\narrangement or understanding that would preclude it from providing financing to any party to a possible\nTransaction other than Receiving Party and its Affiliates; and\n(c) Confidential Information may be disclosed in accordance with Paragraph 3 hereof.\n2. Confidential Information. For purposes of this agreement, the term “Confidential Information” includes (a) all\ninformation concerning the Company (whether prepared by the Company or its agents or other representatives and\nirrespective of the form of communication and when such communication was made) that is or has been furnished to\nReceiving Party by or on behalf of the Company, (b) the possible terms of any Transaction, and (c) all notes, analyses,\nreports, compilations, studies, interpretations, summaries or other documents that are prepared by Receiving Party or\nany of its Representatives that contain, reflect or are based on, in whole or in part, any of the foregoing (“Derived\nConfidential Information”), provided, however, that the term “Confidential Information” does not include information that:\n(i) is or becomes generally available to the public other than as a result of the disclosure thereof by\nReceiving Party or any of its agents or other representatives or a breach of this agreement by Receiving Party or\nany of its agents or other representatives;\n(ii) was within Receiving Party’s possession before being furnished to Receiving Party by or on\nbehalf of the Company, provided that the source of the information was not bound by a confidentiality agreement\nwith, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with\nrespect to that information;\n(iii) is or becomes available to Receiving Party on a non-confidential basis from a source other than\nthe Company, provided that the source of the information was not bound by a confidentiality agreement with, or\nother contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to\nthat information; or\n(iv) is independently developed by Receiving Party without use of information disclosed by the\nCompany or otherwise violating Receiving Party’s obligations under this agreement.\n3. Requested or Required Disclosure. (a) If Receiving Party or any of its agents or other representatives is\nrequested or required by oral questions, interrogatories, requests for information or documents in a legal proceeding,\nsubpoena, civil investigative demand or other similar legal process to disclose any of the Confidential Information,\nReceiving Party will provide the Company prompt notice of the request or requirement so that the Company may seek a\nprotective order or other appropriate remedy or waive compliance with the provisions of this agreement. If, in the absence\nof a protective order or other similar remedy, Receiving Party or any of its agents or other representatives is required to\ndisclose Confidential Information in any response to any such request or requirement, Receiving Party or any of its\nagents or other representatives may, without liability under this agreement, disclose to such requesting person only that\nportion of the Confidential Information that is required to be disclosed so long as Receiving Party and each of its agents\nor other representatives use reasonable efforts to preserve the confidentiality of all other Confidential Information,\nincluding without limitation by cooperating with the Company to obtain an appropriate protective order or other reliable\nassurance that confidential treatment will be accorded the other Confidential Information by the requesting person.\n2\n(b) Nothing in this Agreement prohibits Receiving Party or its Representatives from disclosing Confidential\nInformation required by applicable federal or state securities laws to be disclosed in connection with any solicitation of\nproxies or any business combination, acquisition, merger, consolidation or other transaction relating to the Company or\nany of its affiliates, or in connection with preparing beneficial ownership reports required by Sections 13(d) or 13(g) of\nthe Securities Exchange Act of 1934, in each case so long as such transaction does not breach Paragraphs 4 or 5\nhereof.\n4. Securities Laws. Receiving Party hereby (a) acknowledges that it is aware (and that its agents or other\nrepresentatives who are apprised of the matters contemplated hereby have been or will be advised) that federal and\nstate laws prohibit persons with material non-public information about a company obtained directly or indirectly from that\ncompany from purchasing or selling securities of such company, or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such person may purchase or sell such securities,\nand (b) agrees to not to purchase or offer to purchase any securities of the Company while in the possession of any such\ninformation.\n5. Covenants of Receiving Party. (a) As of the date of this agreement, except as previously disclosed to the\nCompany (including by virtue of a public filing), Receiving Party represents and warrants that it does not own beneficially\nor of record any securities entitled to be voted generally in the election of the other Company’s directors or any direct or\nindirect options or other rights to acquire or dispose of any such securities or any economic or voting interests associated\nwith, or the value of which is derived from, any such securities (“Voting Securities”).\n(b) Without limiting the generality or effect of any other provision hereof, Receiving Party agrees that for a period\nending March 31, 2014 (the “Assessment Period”), except within the terms of a specific written request from the\nCompany, neither Receiving Party nor any of its affiliates nor any of their respective representatives or agents acting as a\nprincipal of Receiving Party or such affiliates will propose or publicly announce or otherwise disclose an intent to propose,\nor enter into or agree to enter into, singly or with any other person:\n(i) any form of business combination, acquisition, merger, consolidation or other transaction relating to the\nCompany or any of its affiliates;\n(ii) any form of restructuring, recapitalization or similar transaction with respect to the Company or any of its\naffiliates;\n3\nnor except as aforesaid during the Standstill Period will Receiving Party or any of its agents or other representatives,\nacting as a principal of Receiving Party:\n(iii) acquire, or offer, propose or agree to acquire, by purchase or otherwise, record or beneficial ownership of\nany Voting Securities of the Company;\n(iv) make, or in any way participate in, any solicitation of proxies with respect to any Voting Securities\n(including by the execution of action by written consent of the Company), become a participant in any election\ncontest with respect to the Company, seek to influence any person with respect to any Voting Securities or\ndemand a copy of the Company’s list of stockholders or other books and records;\n(v) participate in or encourage the formation of any partnership, syndicate or other group that owns or seeks\nor offers to acquire beneficial ownership of any Voting Securities or that seeks to affect control of the Company\nor has the purpose of circumventing any provision of this agreement;\n(vi) otherwise act, alone or in concert with others (including by providing financing for another person), to seek\nor to offer to control or influence, in any manner, the Company’s management, Board of Directors or policies;\n(vii) request any waiver or amendment to any provision of this agreement; or\n(viii) make any proposal or other communication designed to, or which could reasonably be expected to,\ncompel the Company to make a public announcement thereof in respect of any matter referred to in this\nagreement.\n(c) In the event that, prior to March 31, 2014, the Company enters into a confidentiality agreement with any third\nparty in connection with possible discussions of a merger, consolidation, sale of stock or assets, tender offer or other\nbusiness combination transaction involving the possible acquisition by such third party of control of, or a sale of all or\nsubstantially all of the assets of, the Company, which agreement provides for a standstill period that ends before March\n31, 2014 or is on terms that are substantially more favorable to the third party than the terms of Paragraph 5(b) hereof, (i)\nthe terms of Paragraph 5(b) hereof will be deemed, without further action, to have been automatically amended so as to\ninclude such shorter standstill period or more favorable terms and (ii) the Company will notify the Receiving Party thereof\nand, if requested, the parties will agree to amendments hereto to reflect such changes. For the avoidance of doubt, a\ndefinitive agreement providing for a transaction of a type referred to in Paragraph 5(b) will not trigger the protections\nprovided in this Paragraph 5(c).\n(d) Receiving Party agrees to vote or cause to be voted its shares of common stock of the Company beneficially\nowned by it or any of its affiliates in respect of the election of directors at the Company’s 2013 annual meeting of\nshareholders (i) in the same proportion as all other shares of common stock are voted by other shareholders or (ii) at\nReceiving Party’s election, as recommended by the Company’s Board of Directors.\n4\n(e) Notwithstanding anything to the contrary set forth in the foregoing provisions of this Paragraph 5, neither\nReceiving Party nor any of its applicable affiliates will be precluded from voting the shares of common stock of the\nCompany beneficially owned by it in opposition to any transaction involving the sale or acquisition of all or a controlling\nportion of the Company’s equity securities or all or substantially all of the Company’s assets (whether by merger,\nconsolidation, business combination, tender or exchange offer, recapitalization, restructuring, sale, equity issuance or\notherwise).\n6. Termination of Discussions. The Company will not be under any contractual or legal obligation of any kind\nwhatsoever to furnish Confidential Information to Receiving Party and reserves the right, in its sole discretion, to\nterminate providing Confidential Information at any time. In that case, on the request of the Company for any or no\nreason, Receiving Party will, and will cause its Representatives to, promptly deliver to the Company or destroy all\nConfidential Information, including all Derived Confidential Information (and all copies thereof and extracts therefrom),\nprovided that (i) neither the Receiving Party nor any of its Representatives will be required to destroy any electronic copy\nof any Confidential Information that is created pursuant to such person’s standard electronic backup and archival\nprocedures if (x) personnel whose functions are not primarily information technology in nature do not have access to\nsuch retained copies and (y) personnel whose functions are primarily information technology in nature have access to\nsuch copies only as reasonably necessary for the performance of their information technology duties (e.g., for purposes\nof system recovery), and (ii) the Receiving Party and its Representatives may each retain (A) one copy of any\nConfidential Information to the extent required to defend or maintain any litigation relating to this Agreement or the\nConfidential Information, or established document retention policies and (B) such copies of the Confidential Information to\nthe extent required to comply with requirements of applicable law. Compliance with the preceding sentence will be\ncertified in writing by an authorized officer of Receiving Party within five calendar days of the delivery of the notice.\nNotwithstanding the return or destruction of the Confidential Information, each party will continue to be bound by its\nobligations of confidentiality and other obligations under this agreement.\n7. Coordination of Contacts. Prior to March 31, 2014, Receiving Party will not, and will cause its agents and\nother representatives not to, except within the terms of a specific written request from the Company or any of the\nCompany’s authorized representatives, initiate contact with any director, officer, employee or person known to Receiving\nParty to be a securityholder, partner, joint venturer or contracting party of the Company in connection with any matter\nreferred to in this agreement. The parties agree that all (a) communications regarding the matters herein contemplated,\n(b) requests for information, and (c) discussions or questions regarding procedures with respect to the matters herein\ncontemplated, will be first submitted or directed to the individual specified on the signature page to this agreement.\n8. No Warranty of Accuracy. Receiving Party acknowledges that neither the Company nor any of its agents or\nrepresentatives makes any representation or warranty as to the accuracy or completeness of any the Confidential\nInformation furnished to Receiving Party. Neither the Company nor any of its agents or other representatives will have\nany liability to Receiving Party or its agents or other representatives resulting from the use of the Confidential Information.\n5\n9. Miscellaneous. No failure or delay by any party in exercising any right, power or privilege under this\nagreement will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further\nexercise of any right, power or privilege under this agreement. No provision of this agreement may be waived, amended\nor assigned except, as to any waiver or amendment, with the written consent of each party in its sole discretion, which\nconsent specifically refers to the provision waived or amended. If any provision of this agreement is deemed to be invalid,\nillegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this agreement will not in\nany way be affected or impaired thereby. This agreement represents the entire understanding of the parties with respect\nto the matters referred to in this letter agreement and supersedes all prior or contemporaneous understandings, written or\noral, between the parties with respect to such matters.\n10. Governing Law. This agreement is governed by, and will be construed in accordance with, the internal laws\nof the State of Pennsylvania, without giving effect to the principles of conflict of laws thereof. Each party submits to the\nexclusive jurisdiction of the federal or state courts in Pittsburgh, Pennsylvania (the “Selected Court”) in respect of any\naction or proceeding arising out of this agreement, agrees that venue for any action on this agreement will be properly\nlaid in the Selected Court and waives any objection to the bringing of any action or proceeding in the venue.\n11. Injunctive Relief. Each party acknowledges and agrees that money damages would not be a sufficient\nremedy for any breach of this agreement by another party or any of its affiliates, agents or other representatives and that\nthe non-breaching party will be entitled to equitable relief, including injunction and specific performance, as a remedy for\nany breach (and the party will not raise the defense of an adequate remedy at law) without the party of a bond or other\nform of assurance or surety. Such remedies will be in addition to all other remedies available at law or equity.\n12. Counterparts. This agreement may be executed in two or more counterparts, each of which will be deemed\nan original, but all of which together will constitute one and the same instrument.\n13. Termination. This agreement will terminate without further action two years after the date first above written.\nThe termination will not, however, affect the liability of any party for any prior breach of any provision hereof.\n14. Certain Definitions. In addition to the terms defined elsewhere herein, for purposes of this agreement, (a) the\nterm “affiliate” has the meaning set forth in Rule 12b-2 promulgated by the Securities and Exchange Commission under\nthe Securities Exchange Act of 1934 and (b) the term “person” means any individual or legal entity.\n[SIGNATURE PAGE FOLLOWS]\n6\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the\nundersigned, whereupon this agreement will become a binding agreement among the parties.\nVery truly yours,\nMichael Baker Corporation\nBy: /s/ H. James McKnight\nName: H. James McKnight\nTitle: Executive VP & CLO\nContact person for Paragraph 7:\nName: H. James McKnight\nTitle: Executive VP & CLO\nEmail: jmcknight@mbakercorp.com\nAccepted and agreed as of the date first written above:\nGladiator Holdco LLC\nBy: /s/ Thomas J. Campbell\nName: Thomas J. Campbell\nTitle: Chairman\nContact person for Paragraph 7:\nName:Thomas J. Campbell\nTitle:Chairman\nEmail:\ntcampbell@dccapitalpartners.com\n7
acd14a52da94474c076247260e2174b4.pdf	effective_date jurisdiction party term	Schedule C\nNON DISCLOSURE AGREEMENT\nThis Non Disclosure Agreement (the “NDA”) entered into on the 22nd day of September (the “Effective Date”), 2006 by and between Can-Fite\nBioPharma, Ltd., having its principal place of business at 10 Bareket St. Petach Tikva, Israel (the “Disclosing Party”), and Fuji Techno Interface\nLtd, a company organized under the laws of the State of Japan, having its principal place of business at Kioicho Hills l.F 3-32 Kioicho Chiyoda –\nku Tokyo 102-0094, Japan (the “Reciveing Party”).\nWITNESSETH\nWHEREAS, the DISCLOSING PARTY has disclosed and wishes to disclose to the RECEIVING PARTY certain information relating to\nthe DISCLOSING PARTY’s technology (the “Technology”) and business issue relating thereto (the “Confidential Information”), all of which\ninformation the DISCLOSING PARTY deems to be confidential; and\nWHEREAS, the RECEIVING PARTY has been willing and is willing to receive such information from the DISCLOSING PARTY for\nthe purpose of assisting and advising the Company in the negotiations and ongoing relationships with SKK, regarding, among others, the subject\nmatter of the License Agreement (the “Project”) and any other business matter relating to the Technology; and\nWHEREAS, the RECEIVING PARTY acknowledges the sensitivity of the Confidential Information.\nNOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and promises herein contained, the parties\nhereto agree as follows:\n1.\nThis Agreement shall terminate upon the later to occur of completion of the Project or seven years from the Effective Date first stated\nabove, whichever occurs first. Notwithstanding the aforesaid, the RECEIVING PARTY’s undertaking to maintain the Confidential\nInformation (as defined below) in strictly confidence shall continue for a period of five (5) years after the termination of this\nAgreement.\n2.\nConfidential Information shall , any and all inventions, ideas, discoveries, data, · instructions, designs, information, components,\nmethods, tools, developments, innovations, techniques, materials, technology, protocols, procedures, results, formulae, trade secrets,\nknow-how and other non-public and proprietary materials, products, processes or information, including research, product plans,\nmanufacturing processes, manufacturing or operating costs, services, software, hardware, customer lists, price lists, business plans,\nmarketing plans or financial information, that is or was disclosed or supplied by the Disclosing Party to the Receiving Party in\nconnection with the Project. Disclosures by a Party’s Affiliate shall be deemed disclosures by that Party, and disclosures to a Party’s\nAffiliate shall be deemed disclosures to that Party\n3.\nThe RECEIVING PARTY shall (a) use the Confidential Information solely to the extent necessary for the purpose of the Project; (b)\nrestrict disclosure of the confidential Information to those of its employees who are directly responsible for the fulfillment of such\npurpose; and (c) disclose the Confidential Information only to the extent it is strictly necessary for each such employees to perform such\nduties for the RECEIVING PARTY Before making any disclosure of the Confidential Information to such employee, the RECEIVING\nPARTY shall ensure that such employee is bound by a Confidentiality and Nondisclosure Agreement which prohibits such employee\nfrom disclosing the Confidential Information. Notwithstanding the forgoing, the RECEIVING PARTY shall be jointly liable to the\nDISCLOSING PARTY with each of its employees and ex-employees, at all times, regardless of termination of any labor, employment\nor other relationship, for any breach of confidentiality or nondisclosure obligation by any such person in connection with the\nConfidential Information.\n7\n4.\nInformation shall not be deemed confidential, and the RECEIVING PARTY shall have no obligation with respect to any such\ninformation, which the RECEIVING PARTY can evidence, to the DISCLOSING PARTY by appropriate documentation:\n(i)\nIs already known to the RECEIVING PARTY; or\n(ii)\nIs or becomes publicly known through no wrongful act of the RECEIVING PARTY; or\n(iii)\nIs independently developed by the RECEIVING PARTY or is rightfully received by the RECEIVING PARTY from a\nthird party without restriction and without breach of this Agreement; or\n(iv)\nIs approved for release by written, authorization of the DISCLOSING PARTY.\n5.\nThe Confidential Information is and shall always remain the exclusive property of the DISCLOSING PARTY, and the RECEIVING\nPARTY hereby acknowledges the right, title and interest of the DISCLOSING PARTY in and to the Confidential Information. The\nRECEIVING PARTY will not at any time infringe, contest, dispute or question such right, title or interest nor aid others in doing so\ndirectly or indirectly. The Provision of this Section will not apply to Confidential Information previously known to The RECEIVING\nPARTY as provided in Section 4 above.\n6.\nThe RECEIVING PARTY shall use the same standard of care it uses to protect its own, Confidential Information to avoid disclosure to\nany third party of any the DISCLOSING PARTY Confidential Information for the duration of this Agreement and for a period of five\n(5) years from the Effective Date of the termination of this Agreement. The RECEIVING PARTY shall not disclose to other of its\ncustomers, clients, contractors, suppliers or other affiliates its relationship with the DISCLOSING PARTY nor the Project which is the\nsubstance of this Agreement.\n7.\nAll the DISCLOSING PARTY’s Confidential Information and all tangible forms of such information including, but not limited to,\nbusiness information, data, documents, drawings, specifications, prototypes, and software received hereunder by the RECEIVING\nPARTY from the DISCLOSING PARTY shall remain the property of the DISCLOSING PARTY. Upon written request by the\nDISCLOSING PARTY, the RECEIVING PARTY shall return to the DISCLOSING PARTY all tangible forms of the DISCLOSING\nPARTY Confidential Information, including any and all copies thereof, except for one copy which may be retained by an attorney for\nthe RECEIVING PARTY for archival purposes.\n8\n8.\nNothing contained in this Agreement shall be construed as (i) requiring the DISCLOSING PARTY to disclose, or the RECEIVING\nPARTY to accept, any particular information, or (ii) granting to the RECEIVING PARTY a license, either express or implied, under any\npatent, copyright, trade secret, or other intellectual property rights now or hereafter owned, obtained, or licensable by the DISCLOSING\nPARTY.\n9.\nThis Agreement and any dispute arising from the performance or breach hereof shall be governed by and construed and enforced in\naccordance with the laws of State of New York, without reference to conflicts of laws principles, and only the courts sitting in that State\nshall have exclusive jurisdiction of the parties for the purposes of adjudicating any disputes under this Agreement. The RECEIVING\nPARTY acknowledges that the Confidential Information is the valuable proprietary information and/or confidential trade secrets of the\nDISCLOSING PARTY and that the DISCLOSING PARTY will sustain irreparable financial and business loss by any breach of the\nterms of this Agreement, in the event of a breach of this Agreement by the RECEIVING PARTY, the DISCLOSING PARTY shall be\nentitled, without prejudice to all attendant remedies, to all injunction or other court-order relief that may be available against a\nthreatened or continuing breach. The parties further agree that service of process may be accomplished by certified mail, as follows:\nIf to the DISCLOSlNG PARTY:\n10 Bareket St.\nPetach Tikva\nIsrael\nTel: (972)-3-924-1114\nFax: (972)-3 -924-9378\n.\nIf to the RECEIVING PARTY\nKioicho Hills 1F 3-32\nKioicho Chiyoda –ku\nTokyo 102-0094\nJapan\nTel:\n+81-3 -5210-2231\nFax:\n+81-3 -5210-5050\n10.\nNeither party under this NDA shall publicly announce or disclose the existence of this NDA, or its contents, any discussions relating\nthereto, or the discussions of the business relationship being considered, without the prior consent of the other party or except as may be\nrequired by law, in which case the party required to make disclosure shall give the other party the maximum feasible prior notice of such\ndisclosure.\n11.\nThis Agreement expresses the entire agreement and understanding between the parties respecting the subject matter hereof and shall not\nbe modified except by a writing signed by authorized representatives of the parties on or after the date hereof.\n12.\nThe persons executing this Agreement for and on behalf of the parties hereto represent that they are fully authorized to do so for and on\nbehalf of their respective principals.\n9\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the effective date first written above.\nTHE DISCLOSING PARTY\nTHE RECEIVING PARTY\n/s/ Pnina Fishman\n/s/ Osamu Fujimaki\nCan-Fite BioPharma, Ltd\nFuji Techno Interface Ltd\nBy:\nPnina Fishman\nBy: Osamu Fujimaki\nTitle: CEO\nTitle: President\nDate: September 22, 2006\nDate: September 28, 2006\n10	Schedule C\nNON DISCLOSURE AGREEMENT\nThis Non Disclosure Agreement (the “NDA”) entered into on the 22nd day of September (the “Effective Date”), 2006 by and between Can-Fite\nBioPharma, Ltd., having its principal place of business at 10 Bareket St. Petach Tikva, Israel (the “Disclosing Party”), and Fuji Techno Interface\nLtd, a company organized under the laws of the State of Japan, having its principal place of business at Kioicho Hills 1.F 3-32 Kioicho Chiyoda —\nku Tokyo 102-0094, Japan (the “Reciveing Party”).\nWITNESSETH\nWHEREAS, the DISCLOSING PARTY has disclosed and wishes to disclose to the RECEIVING PARTY certain information relating to\nthe DISCLOSING PARTY’s technology (the “Technology”) and business issue relating thereto (the “Confidential Information”), all of which\ninformation the DISCLOSING PARTY deems to be confidential; and\nWHEREAS, the RECEIVING PARTY has been willing and is willing to receive such information from the DISCLOSING PARTY for\nthe purpose of assisting and advising the Company in the negotiations and ongoing relationships with SKK, regarding, among others, the subject\nmatter of the License Agreement (the “Project”) and any other business matter relating to the Technology; and\nWHEREAS, the RECEIVING PARTY acknowledges the sensitivity of the Confidential Information.\nNOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and promises herein contained, the parties\nhereto agree as follows:\n1. This Agreement shall terminate upon the later to occur of completion of the Project or seven years from the Effective Date first stated\nabove, whichever occurs first. Notwithstanding the aforesaid, the RECEIVING PARTY’s undertaking to maintain the Confidential\nInformation (as defined below) in strictly confidence shall continue for a period of five (5) years after the termination of this\nAgreement.\n2. Confidential Information shall , any and all inventions, ideas, discoveries, data, - instructions, designs, information, components,\nmethods, tools, developments, innovations, techniques, materials, technology, protocols, procedures, results, formulae, trade secrets,\nknow-how and other non-public and proprietary materials, products, processes or information, including research, product plans,\nmanufacturing processes, manufacturing or operating costs, services, software, hardware, customer lists, price lists, business plans,\nmarketing plans or financial information, that is or was disclosed or supplied by the Disclosing Party to the Receiving Party in\nconnection with the Project. Disclosures by a Party’s Affiliate shall be deemed disclosures by that Party, and disclosures to a Party’s\nAffiliate shall be deemed disclosures to that Party\n3. The RECEIVING PARTY shall (a) use the Confidential Information solely to the extent necessary for the purpose of the Project; (b)\nrestrict disclosure of the confidential Information to those of its employees who are directly responsible for the fulfillment of such\npurpose; and (c) disclose the Confidential Information only to the extent it is strictly necessary for each such employees to perform such\nduties for the RECEIVING PARTY Before making any disclosure of the Confidential Information to such employee, the RECEIVING\nPARTY shall ensure that such employee is bound by a Confidentiality and Nondisclosure Agreement which prohibits such employee\nfrom disclosing the Confidential Information. Notwithstanding the forgoing, the RECEIVING PARTY shall be jointly liable to the\nDISCLOSING PARTY with each of its employees and ex-employees, at all times, regardless of termination of any labor, employment\nor other relationship, for any breach of confidentiality or nondisclosure obligation by any such person in connection with the\nConfidential Information.\nInformation shall not be deemed confidential, and the RECEIVING PARTY shall have no obligation with respect to any such\ninformation, which the RECEIVING PARTY can evidence, to the DISCLOSING PARTY by appropriate documentation:\n@) Is already known to the RECEIVING PARTY; or\n(ii) Is or becomes publicly known through no wrongful act of the RECEIVING PARTY; or\n(iii) Is independently developed by the RECEIVING PARTY or is rightfully received by the RECEIVING PARTY from a\nthird party without restriction and without breach of this Agreement; or\n@iv) Is approved for release by written, authorization of the DISCLOSING PARTY.\nThe Confidential Information is and shall always remain the exclusive property of the DISCLOSING PARTY, and the RECEIVING\nPARTY hereby acknowledges the right, title and interest of the DISCLOSING PARTY in and to the Confidential Information. The\nRECEIVING PARTY will not at any time infringe, contest, dispute or question such right, title or interest nor aid others in doing so\ndirectly or indirectly. The Provision of this Section will not apply to Confidential Information previously known to The RECEIVING\nPARTY as provided in Section 4 above.\nThe RECEIVING PARTY shall use the same standard of care it uses to protect its own, Confidential Information to avoid disclosure to\nany third party of any the DISCLOSING PARTY Confidential Information for the duration of this Agreement and for a period of five\n(5) years from the Effective Date of the termination of this Agreement. The RECEIVING PARTY shall not disclose to other of its\ncustomers, clients, contractors, suppliers or other affiliates its relationship with the DISCLOSING PARTY nor the Project which is the\nsubstance of this Agreement.\nAll the DISCLOSING PARTY’s Confidential Information and all tangible forms of such information including, but not limited to,\nbusiness information, data, documents, drawings, specifications, prototypes, and software received hereunder by the RECEIVING\nPARTY from the DISCLOSING PARTY shall remain the property of the DISCLOSING PARTY. Upon written request by the\nDISCLOSING PARTY, the RECEIVING PARTY shall return to the DISCLOSING PARTY all tangible forms of the DISCLOSING\nPARTY Confidential Information, including any and all copies thereof, except for one copy which may be retained by an attorney for\nthe RECEIVING PARTY for archival purposes.\n10. 11. 12. Nothing contained in this Agreement shall be construed as (i) requiring the DISCLOSING PARTY to disclose, or the RECEIVING\nPARTY to accept, any particular information, or (ii) granting to the RECEIVING PARTY a license, either express or implied, under any\npatent, copyright, trade secret, or other intellectual property rights now or hereafter owned, obtained, or licensable by the DISCLOSING\nPARTY.\nThis Agreement and any dispute arising from the performance or breach hereof shall be governed by and construed and enforced in\naccordance with the laws of State of New York, without reference to conflicts of laws principles, and only the courts sitting in that State\nshall have exclusive jurisdiction of the parties for the purposes of adjudicating any disputes under this Agreement. The RECEIVING\nPARTY acknowledges that the Confidential Information is the valuable proprietary information and/or confidential trade secrets of the\nDISCLOSING PARTY and that the DISCLOSING PARTY will sustain irreparable financial and business loss by any breach of the\nterms of this Agreement, in the event of a breach of this Agreement by the RECEIVING PARTY, the DISCLOSING PARTY shall be\nentitled, without prejudice to all attendant remedies, to all injunction or other court-order relief that may be available against a\nthreatened or continuing breach. The parties further agree that service of process may be accomplished by certified mail, as follows:\nIf to the DISCLOSING PARTY:\n10 Bareket St.\nPetach Tikva\nIsrael\nTel:  (972)-3-924-1114\nFax: (972)-3-924-9378\nIf to the RECEIVING PARTY\nKioicho Hills 1F 3-32\nKioicho Chiyoda —ku\nTokyo 102-0094\nJapan\nTel: +81-3-5210-2231\nFax: +81-3-5210-5050\nNeither party under this NDA shall publicly announce or disclose the existence of this NDA, or its contents, any discussions relating\nthereto, or the discussions of the business relationship being considered, without the prior consent of the other party or except as may be\nrequired by law, in which case the party required to make disclosure shall give the other party the maximum feasible prior notice of such\ndisclosure.\nThis Agreement expresses the entire agreement and understanding between the parties respecting the subject matter hereof and shall not\nbe modified except by a writing signed by authorized representatives of the parties on or after the date hereof.\nThe persons executing this Agreement for and on behalf of the parties hereto represent that they are fully authorized to do so for and on\nbehalf of their respective principals.\nIN WITNESS WHEREQF, the parties hereto have executed this Agreement as of the effective date first written above.\nTHE DISCLOSING PARTY THE RECEIVING PARTY\n/s/ Pnina Fishman /s/ Osamu Fujimaki\nCan-Fite BioPharma, Ltd Fuji Techno Interface Ltd\nBy: Pnina Fishman By: Osamu Fujimaki\nTitle: CEO Title:  President\nDate:  September 22, 2006 Date:  September 28, 2006\n10	Schedule C\nNON DISCLOSURE AGREEMENT\nThis Non Disclosure Agreement (the "NDA") entered into on the 22nd day of September (the "Effective Date"), 2006 by and between Can-Fite\nBioPharma, Ltd., having its principal place of business at 10 Bareket St. Petach Tikva, Israel (the "Disclosing Party"), and Fuji Techno Interface\nLtd, a company organized under the laws of the State of Japan, having its principal place of business at Kioicho Hills 1.F 3-32 Kioicho Chiyoda\nku Tokyo 102-0094, Japan (the "Reciveing Party").\nWITNESSETH\nWHEREAS, the DISCLOSING PARTY has disclosed and wishes to disclose to the RECEIVING PARTY certain information relating to\nthe DISCLOSING PARTY's technology (the "Technology") and business issue relating thereto (the "Confidential Information"), all of which\ninformation the DISCLOSING PARTY deems to be confidential; and\nWHEREAS, the RECEIVING PARTY has been willing and is willing to receive such information from the DISCLOSING PARTY for\nthe purpose of assisting and advising the Company in the negotiations and ongoing relationships with SKK, regarding, among others, the subject\nmatter of the License Agreement (the "Project") and any other business matter relating to the Technology; and\nWHEREAS, the RECEIVING PARTY acknowledges the sensitivity of the Confidential Information.\nNOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and promises herein contained, the parties\nhereto agree as follows:\n1.\nThis Agreement shall terminate upon the later to occur of completion of the Project or seven years from the Effective Date first stated\nabove, whichever occurs first. Notwithstanding the aforesaid, the RECEIVING PARTY's undertaking to maintain the Confidential\nInformation (as defined below) in strictly confidence shall continue for a period of five (5) years after the termination of this\nAgreement.\n2.\nConfidential Information shall any and all inventions, ideas, discoveries, data, instructions, designs, information, components,\nmethods, tools, developments, innovations, techniques, materials, technology, protocols, procedures, results, formulae, trade secrets,\nknow-how and other non-public and proprietary materials, products, processes or information, including research, product plans,\nmanufacturing processes, manufacturing or operating costs, services, software, hardware, customer lists, price lists, business plans,\nmarketing plans or financial information, that is or was disclosed or supplied by the Disclosing Party to the Receiving Party in\nconnection with the Project. Disclosures by a Party's Affiliate shall be deemed disclosures by that Party, and disclosures to a Party's\nAffiliate shall be deemed disclosures to that Party\n3.\nThe RECEIVING PARTY shall (a) use the Confidentia Information solely to the extent necessary for the purpose of the Project; (b)\nrestrict disclosure of the confidential Information to those of its employees who are directly responsible for the fulfillment of such\npurpose; and (c) disclose the Confidential Information only to the extent it is strictly necessary for each such employees to perform such\nduties for the RECEIVING PARTY Before making any disclosure of the Confidential Information to such employee, the RECEIVING\nPARTY shall ensure that such employee is bound by a Confidentiality and Nondisclosure Agreement which prohibits such employee\nfrom disclosing the Confidential Information. Notwithstanding the forgoing, the RECEIVING PARTY shall be jointly liable to the\nDISCLOSING PARTY with each of its employees and ex-employees, at all times, regardless of termination of any labor, employment\nor other relationship, for any breach of confidentiality or nondisclosure obligation by any such person in connection with the\nConfidential Information.\n7\n4.\nInformation shall not be deemed confidential, and the RECEIVING PARTY shall have no obligation with respect to any such\ninformation, which the RECEIVING PARTY can evidence, to the DISCLOSING PARTY by appropriate documentation:\n(i)\nIs already known to the RECEIVING PARTY; or\n(ii)\nIs or becomes publicly known through no wrongful act of the RECEIVING PARTY; or\n(iii)\nIs independently developed by the RECEIVING PARTY or is rightfully received by the RECEIVING PARTY from a\nthird party without restriction and without breach of this Agreement; or\n(iv)\nIs approved for release by written, authorization of the DISCLOSING PARTY.\n5.\nThe Confidential Information is and shall always remain the exclusive property of the DISCLOSING PARTY, and the RECEIVING\nPARTY hereby acknowledges the right, title and interest of the DISCLOSING PARTY in and to the Confidential Information. The\nRECEIVING PARTY will not at any time infringe, contest, dispute or question such right, title or interest nor aid others in doing so\ndirectly or indirectly. The Provision of this Section will not apply to Confidential Information previously known to The RECEIVING\nPARTY as provided in Section 4 above.\n6.\nThe RECEIVING PARTY shall use the same standard of care it uses to protect its own, Confidentia Information to avoid disclosure to\nany\nthird party of any the DISCLOSING PARTY Confidential Information for the duration of this Agreement and for a period of five\n(5) years from the Effective Date of the termination of this Agreement. The RECEIVING PARTY shall not disclose to other of its\ncustomers, clients, contractors, suppliers or other affiliates its relationship with the DISCLOSING PARTY nor the Project which is the\nsubstance of this Agreement.\n7.\nAll the DISCLOSING PARTY's Confidential Information and all tangible forms of such information including, but not limited to,\nbusiness information, data, documents, drawings, specifications, prototypes, and software received hereunder by the RECEIVING\nPARTY from the DISCLOSING PARTY shall remain the property of the DISCLOSING PARTY. Upon written request by the\nDISCLOSING PARTY, the RECEIVING PARTY shall return to the DISCLOSING PARTY all tangible forms of the DISCLOSING\nPARTY Confidential Information, including any and all copies thereof, except for one copy which may be retained by an attorney for\nthe RECEIVING PARTY for archival purposes.\n8\n8.\nNothing contained in this Agreement shall be construed as (i) requiring the DISCLOSING PARTY to disclose, or the RECEIVING\nPARTY to accept, any particular information, or (ii) granting to the RECEIVING PARTY a license, either express or implied, under any\npatent, copyright, trade secret, or other intellectual property rights now or hereafter owned, obtained, or licensable by the DISCLOSING\nPARTY.\n9.\nThis Agreement and any dispute arising from the performance or breach hereof shall be governed by and construed and enforced in\naccordance with the laws of State of New York, without reference to conflicts of laws principles, and only the courts sitting in that State\nshall\nhave exclusive jurisdiction of the parties for the purposes of adjudicating any disputes under this Agreement. The RECEIVING\nPARTY acknowledges that the Confidential Information is the valuable proprietary information and/or confidential trade secrets of the\nDISCLOSING PARTY and that the DISCLOSING PARTY will sustain irreparable financial and business loss by any breach of the\nterms of this Agreement, in the event of a breach of this Agreement by the RECEIVING PARTY, the DISCLOSING PARTY shall be\nentitled, without prejudice to all attendant remedies, to all injunction or other court-order relief that may be available against a\nthreatened or continuing breach. The parties further agree that service of process may be accomplished by certified mail, as follows:\nIf to the DISCLOSING PARTY:\n10 Bareket St.\nPetach Tikva\nIsrael\nTel: (972)-3-924-1114\nFax: (972)-3-924-9378\nIf to the RECEIVING PARTY\nKioicho Hills 1F 3-32\nKioicho Chiyoda -ku\nTokyo 102-0094\nJapan\nTel: +81-3-5210-2231\nFax: +81-3-5210-5050\n10.\nNeither party under this NDA shall publicly announce or disclose the existence of this NDA, or its contents, any discussions relating\nthereto, or the discussions of the business relationship being considered, without the prior consent of the other party or except as may be\nrequired by law, in which case the party required to make disclosure shall give the other party the maximum feasible prior notice of such\ndisclosure.\n11.\nThis Agreement expresses the entire agreement and understanding between the parties respecting the subject matter hereof and shall not\nbe modified except by a writing signed by authorized representatives of the parties on or after the date hereof.\n12.\nThe persons executing this Agreement for and on behalf of the parties hereto represent that they are fully authorized to do so for and on\nbehalf of their respective principals.\n9\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the effective date first written above.\nTHE DISCLOSING PARTY\nTHE RECEIVING PARTY\n/s/ Pnina Fishman\n/s/ Osamu Fujimaki\nCan-Fite BioPharma, Ltd\nFuji Techno Interface Ltd\nBy:\nPnina Fishman\nBy:\nOsamu Fujimaki\nTitle:\nCEO\nTitle: President\nDate:\nSeptember 22, 2006\nDate:\nSeptember 28, 2006\n10	Schedule C\nNON DISCLOSURE AGREEMENT\nThis Non Disclosure Agreement (the “NDA”) entered into on the 22nd day of September (the “Effective Date”), 2006 by and between Can-Fite\nBioPharma, Ltd., having its principal place of business at 10 Bareket St. Petach Tikva, Israel (the “Disclosing Party”), and Fuji Techno Interface\nLtd, a company organized under the laws of the State of Japan, having its principal place of business at Kioicho Hills l.F 3-32 Kioicho Chiyoda –\nku Tokyo 102-0094, Japan (the “Reciveing Party”).\nWITNESSETH\nWHEREAS, the DISCLOSING PARTY has disclosed and wishes to disclose to the RECEIVING PARTY certain information relating to\nthe DISCLOSING PARTY’s technology (the “Technology”) and business issue relating thereto (the “Confidential Information”), all of which\ninformation the DISCLOSING PARTY deems to be confidential; and\nWHEREAS, the RECEIVING PARTY has been willing and is willing to receive such information from the DISCLOSING PARTY for\nthe purpose of assisting and advising the Company in the negotiations and ongoing relationships with SKK, regarding, among others, the subject\nmatter of the License Agreement (the “Project”) and any other business matter relating to the Technology; and\nWHEREAS, the RECEIVING PARTY acknowledges the sensitivity of the Confidential Information.\nNOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and promises herein contained, the parties\nhereto agree as follows:\n1.\nThis Agreement shall terminate upon the later to occur of completion of the Project or seven years from the Effective Date first stated\nabove, whichever occurs first. Notwithstanding the aforesaid, the RECEIVING PARTY’s undertaking to maintain the Confidential\nInformation (as defined below) in strictly confidence shall continue for a period of five (5) years after the termination of this\nAgreement.\n2.\nConfidential Information shall , any and all inventions, ideas, discoveries, data, · instructions, designs, information, components,\nmethods, tools, developments, innovations, techniques, materials, technology, protocols, procedures, results, formulae, trade secrets,\nknow-how and other non-public and proprietary materials, products, processes or information, including research, product plans,\nmanufacturing processes, manufacturing or operating costs, services, software, hardware, customer lists, price lists, business plans,\nmarketing plans or financial information, that is or was disclosed or supplied by the Disclosing Party to the Receiving Party in\nconnection with the Project. Disclosures by a Party’s Affiliate shall be deemed disclosures by that Party, and disclosures to a Party’s\nAffiliate shall be deemed disclosures to that Party\n3.\nThe RECEIVING PARTY shall (a) use the Confidential Information solely to the extent necessary for the purpose of the Project; (b)\nrestrict disclosure of the confidential Information to those of its employees who are directly responsible for the fulfillment of such\npurpose; and (c) disclose the Confidential Information only to the extent it is strictly necessary for each such employees to perform such\nduties for the RECEIVING PARTY Before making any disclosure of the Confidential Information to such employee, the RECEIVING\nPARTY shall ensure that such employee is bound by a Confidentiality and Nondisclosure Agreement which prohibits such employee\nfrom disclosing the Confidential Information. Notwithstanding the forgoing, the RECEIVING PARTY shall be jointly liable to the\nDISCLOSING PARTY with each of its employees and ex-employees, at all times, regardless of termination of any labor, employment\nor other relationship, for any breach of confidentiality or nondisclosure obligation by any such person in connection with the\nConfidential Information.\n7\n4.\nInformation shall not be deemed confidential, and the RECEIVING PARTY shall have no obligation with respect to any such\ninformation, which the RECEIVING PARTY can evidence, to the DISCLOSING PARTY by appropriate documentation:\n(i)\nIs already known to the RECEIVING PARTY; or\n(ii)\nIs or becomes publicly known through no wrongful act of the RECEIVING PARTY; or\n(iii)\nIs independently developed by the RECEIVING PARTY or is rightfully received by the RECEIVING PARTY from a\nthird party without restriction and without breach of this Agreement; or\n(iv)\nIs approved for release by written, authorization of the DISCLOSING PARTY.\n5.\nThe Confidential Information is and shall always remain the exclusive property of the DISCLOSING PARTY, and the RECEIVING\nPARTY hereby acknowledges the right, title and interest of the DISCLOSING PARTY in and to the Confidential Information. The\nRECEIVING PARTY will not at any time infringe, contest, dispute or question such right, title or interest nor aid others in doing so\ndirectly or indirectly. The Provision of this Section will not apply to Confidential Information previously known to The RECEIVING\nPARTY as provided in Section 4 above.\n6.\nThe RECEIVING PARTY shall use the same standard of care it uses to protect its own, Confidential Information to avoid disclosure to\nany third party of any the DISCLOSING PARTY Confidential Information for the duration of this Agreement and for a period of five\n(5) years from the Effective Date of the termination of this Agreement. The RECEIVING PARTY shall not disclose to other of its\ncustomers, clients, contractors, suppliers or other affiliates its relationship with the DISCLOSING PARTY nor the Project which is the\nsubstance of this Agreement.\n7.\nAll the DISCLOSING PARTY’s Confidential Information and all tangible forms of such information including, but not limited to,\nbusiness information, data, documents, drawings, specifications, prototypes, and software received hereunder by the RECEIVING\nPARTY from the DISCLOSING PARTY shall remain the property of the DISCLOSING PARTY. Upon written request by the\nDISCLOSING PARTY, the RECEIVING PARTY shall return to the DISCLOSING PARTY all tangible forms of the DISCLOSING\nPARTY Confidential Information, including any and all copies thereof, except for one copy which may be retained by an attorney for\nthe RECEIVING PARTY for archival purposes.\n8\n8.\nNothing contained in this Agreement shall be construed as (i) requiring the DISCLOSING PARTY to disclose, or the RECEIVING\nPARTY to accept, any particular information, or (ii) granting to the RECEIVING PARTY a license, either express or implied, under any\npatent, copyright, trade secret, or other intellectual property rights now or hereafter owned, obtained, or licensable by the DISCLOSING\nPARTY.\n9.\nThis Agreement and any dispute arising from the performance or breach hereof shall be governed by and construed and enforced in\naccordance with the laws of State of New York, without reference to conflicts of laws principles, and only the courts sitting in that State\nshall have exclusive jurisdiction of the parties for the purposes of adjudicating any disputes under this Agreement. The RECEIVING\nPARTY acknowledges that the Confidential Information is the valuable proprietary information and/or confidential trade secrets of the\nDISCLOSING PARTY and that the DISCLOSING PARTY will sustain irreparable financial and business loss by any breach of the\nterms of this Agreement, in the event of a breach of this Agreement by the RECEIVING PARTY, the DISCLOSING PARTY shall be\nentitled, without prejudice to all attendant remedies, to all injunction or other court-order relief that may be available against a\nthreatened or continuing breach. The parties further agree that service of process may be accomplished by certified mail, as follows:\nIf to the DISCLOSlNG PARTY:\n10 Bareket St.\nPetach Tikva\nIsrael\nTel: (972)-3-924-1114\nFax: (972)-3 -924-9378\n.\nIf to the RECEIVING PARTY\nKioicho Hills 1F 3-32\nKioicho Chiyoda –ku\nTokyo 102-0094\nJapan\nTel:\n+81-3 -5210-2231\nFax:\n+81-3 -5210-5050\n10.\nNeither party under this NDA shall publicly announce or disclose the existence of this NDA, or its contents, any discussions relating\nthereto, or the discussions of the business relationship being considered, without the prior consent of the other party or except as may be\nrequired by law, in which case the party required to make disclosure shall give the other party the maximum feasible prior notice of such\ndisclosure.\n11.\nThis Agreement expresses the entire agreement and understanding between the parties respecting the subject matter hereof and shall not\nbe modified except by a writing signed by authorized representatives of the parties on or after the date hereof.\n12.\nThe persons executing this Agreement for and on behalf of the parties hereto represent that they are fully authorized to do so for and on\nbehalf of their respective principals.\n9\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the effective date first written above.\nTHE DISCLOSING PARTY\nTHE RECEIVING PARTY\n/s/ Pnina Fishman\n/s/ Osamu Fujimaki\nCan-Fite BioPharma, Ltd\nFuji Techno Interface Ltd\nBy:\nPnina Fishman\nBy: Osamu Fujimaki\nTitle: CEO\nTitle: President\nDate: September 22, 2006\nDate: September 28, 2006\n10
ad1d6128258524d7b4e21d7cb333cd34.pdf	effective_date jurisdiction party term	EX-10 .9 6 hpyexhibit109michaellawler.htm CONFIDENTIALITY, NON-COMPETE AGREEMENT MICHAEL LAWLER\nEMPLOYEE CONFIDENTIAL INFORMATION\nAND\nNONCOMPETITION AGREEMENT\nThis Employee Confidential Information and Noncompetition Agreement is made and entered into on\nthis 13th day of July, 2012, by and between Michael A. Lawler, hereinafter “Employee,” and Heartland\nPayment Systems, Inc., a Delaware corporation (collectively with any and all current and future subsidiary\nand/or affiliate companies, the “Company”).\nWHEREAS, Employee has established an employment relationship with the Company and has\nreceived, and may continue to receive, certain benefits including stock grants and options; and\nWHEREAS, by reason of employment by the Company, Employee has received, and will continue to\nreceive, the value and advantage of confidential information and special training and skills, and the expert\nknowledge and experience of the contacts with other Company employees; and\nWHEREAS, the future granting of stock grants and options represents an advantage to Employee and\nwas conditioned upon Employee entering into this Agreement; and\nNOW THEREFORE, in exchange for good and valuable consideration, the sufficiency and receipt of\nwhich is hereby acknowledged, it is agreed as follows:\nSection 1. Scope of Agreement.\n(a)\nThis contract is not a contract of employment for any particular term. Employee's employment\nby the Company is at will, unless otherwise agreed by the Company and Employee in writing.\n(b)\nSeverance policies and procedures are as set forth in the Employee Policy Manual of the\nCompany; provided, that in the event of a conflict between this Agreement and the Employee Policy Manual,\nthis Agreement shall govern.\nSection 2. Severance and Bonuses.\n(a)\nIn consideration of the covenants by Employee contained below, in the event of a termination\nof Employee's employment by action of the Company other than for Cause or Disability, the Employee will\nreceive severance pay, in an amount equal to the base salary that would have been paid for a period of twelve\n(12) months payable in accordance with the Company's regular payroll practices, plus medical benefits for such\n1\nperiod; provided, that the Employee shall not be eligible to receive such severance pay unless such termination\nof employment occurs after the ninetieth (90th) day of the Employee's employment by the Company. Medical\nbenefit continuation during such severance period shall be counted against the benefit continuation period\nrequired under COBRA.\n(b)\nIn the event of a termination of Employee's employment by action of the Company other than\nfor Cause or in the event of termination of Employee's employment by death of Employee, the Employee shall\nalso be entitled to receive a pro rata portion (based on the number of days of Employee's employment during\nthe fiscal quarter in which the Employee's employment is terminated) of any bonus payment that would have\nbeen payable to him for that fiscal quarter if the Employee had been in the employ of the Company for the full\nfiscal quarter. If the Employee's compensation arrangement did not contemplate a bonus payable on a quarterly\nbasis, but instead contemplated a bonus paid on some longer fiscal period (such as a half-year or full year), then\nthe pro rata bonus shall be computed based on the number of days of Employee's employment during such\nlonger fiscal period in which the Employee's employment is terminated and the amount of the bonus payment\nthat would have been payable to him for such longer fiscal period. No bonus will be payable to the Employee\nwith respect to any bonus period commencing after the bonus period in which the Employee's employment\nterminated.\n(c)\nCause. “Cause” means:\n(i)\nThe Employee has breached the provisions of Section 4, Section 5, Section 6, or Section\n7 of this Agreement in any material respect;\n(ii)\nThe Employee has been convicted of, or plead guilty or no contest to, (A) fraud,\nmisappropriation or embezzlement in connection with the Company's business, or (B) a felony, and has\nfailed to submit a resignation in accordance with Section 2(e) below; or\n(iii)\nThe Employee has breached his or her duties hereunder or failed to perform his or her\nduties as an officer or employee of the Company, if such breach or failure has not been cured within\nthirty (30) days after receipt of written notice from the Company of such breach or failure.\nNotwithstanding the foregoing, the Employee shall not be deemed to have been terminated for Cause\npursuant to clause (i) above unless and until there shall have been delivered to the Employee (A) a notice of\ntermination and (B) a copy of a resolution duly adopted by the Board of Directors of the Company finding that,\nafter reasonable notice to the Employee and an opportunity to be heard, in the good faith opinion of the Board\nof Directors of the Company, the Employee has engaged in conduct constituting Cause for termination\nhereunder.\n2\n(d)\nDisability. “Disability” means any mental or physical condition that renders the Employee\nunable to perform the essential functions of his position, with or without reasonable accommodation, for a\nperiod in excess of six (6) months.\n(e)\nIf the Employee is ever convicted of, or pleads guilty or no contest to, any felony offense, then\nthe Employee shall immediately tender a resignation from each and every position the Employee then holds\nwith the Company (whether as officer, director, employee, consultant or otherwise).\nSection 3. Employees' Acknowledgments.\n(a)\nThe Employee understands and acknowledges that because of the confidential and sensitive\nnature of the information to which the Employee will have access during the course of his employment with the\nCompany, any unauthorized use, disclosure or misappropriation of such information will cause irreparable\ndamage to the Company.\n(b)\nThe Employee acknowledges that the Company has expended considerable resources to\ndevelop the confidential information and the relationships that the Company enjoys with its customers,\nsuppliers, employees, officers and other agents, and these assets of the Company are critical to the business of\nthe Company. The Employee agrees that the restrictions set forth below are necessary to prevent even the\ninadvertent disclosure of this confidential information or the interference with these relationships and to protect\nthe legitimate business interests of the Company and are reasonable in scope and content.\nSection 4. Protection of Information.\n(a)\nThe Employee hereby covenants with Company that, throughout the term of his employment\nby the Company, Employee will serve Company's best interests loyally and diligently. Throughout the course of\nemployment by Company and thereafter, Employee will not disclose to any person, firm, corporation or entity\n(except when expressly authorized in writing by Company) any information relating to Company's business,\nincluding, without limitation, merchant application processing and credit underwriting software, merchant\ninformation systems, sales compensation and sales force automation software and systems, electronic payment\ntransaction processing software, fraud and risk analysis systems, human resources and time and attendance\ninformation systems and software, payroll services information systems and payroll application processing\nsoftware, sales policy documents, marketing communications materials, information relating to trade secrets,\nbusiness methods, products, processes, procedures, development or experimental projects, suppliers, customer\nlists or the needs of customers or prospective customers, clients, etc., and will not use such information for his\nown purpose or for the purpose of any person, firm, corporation or entity except the Company.\n3\n(b)\nUpon termination of his employment with the Company, the Employee shall deliver promptly\nto the Company all records, manuals, books, blank forms, documents, letters, memoranda, notes, notebooks,\nreports, data, tables, calculations or copies thereof that relate in any way to the business, products, practices or\ntechniques of the Company, and all other property trade secrets and confidential information of the Company,\nincluding, but not limited to, all documents that in whole or in part contain any trade secrets or confidential\ninformation of the Company, which in any of these cases are in his possession or under his control.\nSection 5. Covenant Not to Compete.\n(a)\nDuring the Restricted Period (as defined below), Employee will not (i) directly or indirectly\nengage in any business or activity which markets, sells or is developing products or services which compete\nwith the products or services marketed, sold or being developed by the Company at the time of such\ntermination (such business or activity being hereinafter sometimes called a “Competing Business”), in any\ncountry, state, territory, region or other geographic area, whether in the United States or otherwise, in which, at\nthe time the Employee becomes no longer employed by the Company, the Company transacts business or sells\nor markets its products or services, whether such engagement by the Employee shall be as an officer, principal,\nagent, director, owner, employee, partner, affiliate, consultant or other participant in any Competing Business,\nor (ii) assist others in engaging in any Competing Business in any manner described in the foregoing clause (i).\n(b)\nThe Employee understands that the foregoing restrictions may limit his ability to earn a\nlivelihood in a business competitive to the business of the Company, but he nevertheless believes that he has\nreceived and will receive sufficient consideration and other benefits in connection with the Company's issuance\nof certain stock and stock options to the Employee as well as other benefits to clearly justify such restrictions\nwhich, in any event (given his education, skills and ability), the Employee does not believe would prevent him\nfrom earning a living.\n(c)\n“Restricted Period” shall mean the period commencing on the date hereof and ending on the\nlast day of the twelfth (12th) full calendar month following the Employee's termination for any reason\nwhatsoever including but not limited to involuntary termination (with or without Cause) and/or voluntary\ntermination; provided that the Restricted Period shall be extended by any amount of time that the Employee has\nfailed to comply with his promises contained in this Section 5 of this Agreement.\nSection 6. Non Solicitation.\n(a)\nDuring the period commencing on the date hereof and ending on the last day of the twelfth\n(12th) full calendar month following the Employee's termination for any reason whatsoever including but not\nlimited to involuntary termination (with or\n4\nwithout Cause) and/or voluntary termination, Employee hereby covenants that he will not, directly or indirectly,\nsolicit, entice or induce any Customer or Supplier (as defined below) of the Company to (i) become a Customer\nor Supplier of any other person or entity engaged in any business activity that competes with any business\nconducted by the Company at any time during the period of Employee's employment with the Company, or any\nbusiness planned by the Company at any time during the period of Employee's employment with the Company\nor (ii) cease doing business with the Company, and Employee agrees that he will not assist any person or entity\nin taking any action described in the foregoing clauses (i) and (ii). For purposes of this Section 6, (A) a\n“Customer” of the Company means any person, corporation, partnership, trust, division, business unit,\ndepartment or agency which, at the time of termination or within one year prior thereto, shall be or shall have\nbeen a customer, distributor or agent of the Company or shall be or shall have been contacted by the Company\nfor the purpose of soliciting it to become a customer, distributor or agent of the Company; and (B) a “Supplier”\nof the Company means any person, corporation, partnership, trust, division, business unit, department or agency\nwhich, at the time of termination or within one year prior thereto, shall be or shall have been a supplier, vendor,\nmanufacturer or developer for any product or service or significant component used in any product or service of\nthe Company.\n(b)\nDuring the period commencing on the date hereof and ending on the last day of the twenty-\nfourth (24th) full calendar month following the Employee's termination for any reason whatsoever, including\nbut not limited to involuntary termination (with or without Cause) and/or voluntary termination, the Employee\nwill not, directly or indirectly, induce other employees of the Company to terminate their employment with the\nCompany or engage in any Competing Business.\nSection 7. Company Right to Inventions.\nThe Employee shall promptly disclose, grant and assign ownership to the Company for its sole use and\nbenefit any and all inventions, improvements, technical information and suggestions relating in any way to the\nbusiness of the Company (whether patentable or not), which he may develop, acquire, conceive or reduce to\npractice while employed by the Company (whether or not during usual working hours), together with all patent\napplications, letters patent, copyrights and reissues thereof that may at any time be granted for or upon any such\ninvention, improvement or technical information. In connection therewith:\n(a)\nThe Employee shall without charge, but at the expense of the Company, promptly at all times\nhereafter execute and deliver such applications, assignments, descriptions and other instruments as may be\nnecessary or proper in the opinion of the Company to vest title to any such inventions, improvements, technical\ninformation, patent applications, patents, copyrights or reissues thereof in the corporation and to enable it to\nobtain and maintain the entire right and title thereto throughout the world; and\n5\n(b)\nThe Employee shall render to the Company at its expense (including a reasonable payment for\nthe time involved in case he is not then in its employ) all such assistance as it may require in the prosecution of\napplications for said patents, copyrights or reissues thereof, in the prosecution or defense of interferences which\nmay be declared involving any said applications, patents or copyrights and in any litigation in which the\nCompany may be involved relating to any such patents, inventions, improvements or technical information.\nSection 8. Remedies; Survival.\n(a)\nThe Employee acknowledges and understands that the provisions of this Agreement are of a\nspecial and unique nature, the loss of which cannot be accurately compensated for in damages by an action at\nlaw, and that the breach or threatened breach of the provisions of this Agreement would cause the Company\nirreparable harm. In the event of a breach or threatened breach by the Employee of the provisions in Section 4,\nSection 5, Section 6, or Section 7 hereof, the Company shall be entitled to but not limited to injunctive relief\nrestraining him from such breach without posting any bond. Nothing herein contained shall be construed as\nprohibiting the Company from pursuing any other additional or alternative remedies available for any breach or\nthreatened breach of this Agreement, including but not limited to monetary damages.\n(b)\nNotwithstanding anything contained in the Agreement to the contrary, the provisions of\nSection 4, Section 5, Section 6, Section 7 and this Section 8, shall survive the expiration or other termination of\nthis Agreement or employment of the Employee by the Company until by their terms, such provisions are no\nlonger operative.\nSection 9. Other Agreements: Prohibition Against Use of Trade Secrets of Others.\n(a)\nEmployee represents and warrants to the Company that except for agreements set forth in\nExhibit A attached hereto, if any, he is not a party to any agreement or other arrangement with any other\ncorporation, partnership or entity relating to noncompetition with such entity or to non-disclosure of\nconfidential and proprietary information of such entity or to other matters similar to the matters set forth in this\nAgreement.\n(b)\nEmployee represents, warrants and agrees that he can and will perform his duties for the\nCompany without the unauthorized use of any confidential and/or proprietary information of others.\n6\nSection 10. General Provisions.\n(a)\nThis Agreement and any or all terms hereof may not be changed, waived, discharged, or\nterminated orally, but only by way of an instrument in writing executed by the Company and the Employee.\n(b)\nThis Agreement shall be governed by and construed in accordance with the laws of the State of\nNew Jersey without regard to legal principles pertaining to conflict of laws.\n(c)\nIt is the desire and intent of the parties hereto that the provisions of this Agreement shall be\nenforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in\nwhich enforcement is sought. Accordingly, to the extent that a restriction contained in this Agreement is more\nrestrictive than permitted by the laws of any jurisdiction where this Agreement may be subject to review and\ninterpretation, the terms of such restriction, for the purpose only of the operation of such restriction in such\njurisdiction, shall be the maximum restriction allowed by the laws of such jurisdiction and such restriction shall\nbe deemed to have been revised accordingly herein.\n(d)\nAny suit, action or proceeding arising out of or relating to this Agreement shall be brought\nonly in the Superior Court in the County of Mercer, New Jersey or the United States District Court for the\nDistrict of New Jersey, and Employee hereby agrees and consents to the personal and exclusive jurisdiction of\nsaid courts over him or her as to all suits, actions and proceedings arising out of or relating to this Agreement,\nand Employee further waives any claim that such suit, action or proceeding is brought in an improper or\ninconvenient forum.\n(e)\nIf any portion of this Agreement shall be found to be invalid or contrary to public policy, the\nsame may be modified or stricken by a Court of competent jurisdiction, to the extent necessary to allow the\nCourt to enforce such provision in a manner which is as consistent with the original intent of the provision as\npossible. The striking or modification by the Court of any provision shall not have the effect of invalidating the\nAgreement as a whole.\n(f)\nThis Agreement constitutes the entire and exclusive agreement between Employee and\nCompany pertaining to the subject matter thereof, and supersedes and replaces any and all earlier confidential\ninformation, invention and noncompetition agreements between Company and Employee and representations\nand understandings of the parties with respect thereto, without extinguishing whatsoever rights heretofore\nacquired by Company under any previous agreements.\n7\n(g)\nThe Company may assign any of its rights under this Agreement to any successor entity to the\nCompany, including, but not limited to, any entity formed by the Company to carry on the business of the\nCompany.\n[SIGNATURES APPEAR ON NEXT PAGE]\n8\nIN WITNESS WHEREOF, the Agreement has been executed as aforesaid.\nCOMPANY\nHEARTLAND PAYMENT SYSTEMS, INC.\nBy: /s/ Robert O. Carr\nName: Robert O. Carr\nTitle: Chief Executive Officer\nEMPLOYEE:\nBy: /s/ Michael A. Lawler\nName: Michael A. Lawler\n9\nEXHIBIT A\nOTHER AGREEMENTS\n[NONE]\n10	EX-10.9 6 hpyexhibit109michaellawler.htm CONFIDENTIALITY, NON-COMPETE AGREEMENT MICHAEL LAWLER\nEMPLOYEE CONFIDENTIAL INFORMATION\nAND\nNONCOMPETITION AGREEMENT\nThis Employee Confidential Information and Noncompetition Agreement is made and entered into on\nthis 13th day of July, 2012, by and between Michael A. Lawler, hereinafter “Employee,” and Heartland\nPayment Systems, Inc., a Delaware corporation (collectively with any and all current and future subsidiary\nand/or affiliate companies, the “Company”).\nWHEREAS, Employee has established an employment relationship with the Company and has\nreceived, and may continue to receive, certain benefits including stock grants and options; and\nWHEREAS, by reason of employment by the Company, Employee has received, and will continue to\nreceive, the value and advantage of confidential information and special training and skills, and the expert\nknowledge and experience of the contacts with other Company employees; and\nWHEREAS, the future granting of stock grants and options represents an advantage to Employee and\nwas conditioned upon Employee entering into this Agreement; and\nNOW THEREFORE, in exchange for good and valuable consideration, the sufficiency and receipt of\nwhich is hereby acknowledged, it is agreed as follows:\nSection 1.  Scope of Agreement.\n(a) This contract is not a contract of employment for any particular term. Employee's employment\nby the Company is at will, unless otherwise agreed by the Company and Employee in writing.\n(b) Severance policies and procedures are as set forth in the Employee Policy Manual of the\nCompany; provided, that in the event of a conflict between this Agreement and the Employee Policy Manual,\nthis Agreement shall govern.\nSection 2. Severance and Bonuses.\n(a) In consideration of the covenants by Employee contained below, in the event of a termination\nof Employee's employment by action of the Corngany other than for Cause or Dlsablhty, the Employee will\nreceive severance I?ay, in an amount equal to the base salary that would have been paid for a period of twelve\n(12) months payable in accordance with the Company's regular payroll practices, plus medical benefits for such\nperiod; provided, that the Employee shall not be eligible to receive such severance pay unless such termination\nof employment occurs after the ninetieth (90th) day of the Employee's employment by the Company. Medical\nbenefit continuation during such severance period shall be counted against the benefit continuation period\nrequired under COBRA.\n(b) In the event of a termination of Employee's employment by action of the Company other than\nfor Cause or in the event of termination of Employee's employment by death of Employee, the Employee shall\nalso be entitled to receive a pro rata portion (based on the number of days of Employee's employment during\nthe fiscal quarter in which the Employee's employment is terminated) of any bonus payment that would have\nbeen payable to him for that fiscal quarter if the Employee had been in the employ of the Company for the full\nfiscal quarter. If the Employee's compensation arrangement did not contemplate a bonus payable on a quarterly\nbasis, but instead contemplated a bonus paid on some longer fiscal period (such as a half-year or full year), then\nthe pro rata bonus shall be computed based on the number of days of Employee's employment during such\nlonger fiscal period in which the Employee's employment is terminated and the amount of the bonus payment\nthat would have been payable to him for such longer fiscal period. No bonus will be payable to the Employee\nwith respgct to any bonus period commencing after the bonus period in which the Employee's employment\nterminated.\n(© Cause. “Cause” means:\n(i) The Employee has breached the provisions of Section 4, Section 5, Section 6, or Section\n7 of this Agreement in any material respect;\n(ii) The Emplo?fee has been convicted of, or plead guilty or no contest to, (A) fraud,\nmisappropriation or embezzlement in connection with the Company's business, or (B) a felony, and has\nfailed to submit a resignation in accordance with Section 2(e) below; or\n(iii) The Employee has breached his or her duties hereunder or failed to perform his or her\nduties as an officer or employee of the Company, if such breach or failure has not been cured within\nthirty (30) days after receipt of written notice from the Company of such breach or failure.\nNotwithstanding the foregoing, the Employee shall not be deemed to have been terminated for Cause\npursuant to clause (i) above unless and until there shall have been delivered to the Employee (A) a notice of\ntermination and (B) a copy of a resolution duly adopted by the Board of Directors of the Company finding that,\nafter reasonable notice to the Employee and an opportunity to be heard, in the good faith opinion of the Board\nof Directors of the Company, the Employee has engaged in conduct constituting Cause for termination\nhereunder.\n(d) Disability. “Disability” means any mental or physical condition that renders the Employee\nunable to perform the essential functions of his position, with or without reasonable accommodation, for a\nperiod in excess of six (6) months.\n(e) If the Employee is ever convicted of, or pleads guilty or no contest to, any felony offense, then\nthe Employee shall immediately tender a resignation from each and every flosition the Employee then holds\nwith the Company (whether as officer, director, employee, consultant or otherwise).\nSection 3. Employees' Acknowledgments.\n(a) The Employee understands and acknowledges that because of the confidential and sensitive\nnature of the information to which the Employee will have access during the course of his employment with the\nCompany, any unauthorized use, disclosure or misappropriation of such information will cause irreparable\ndamage to the Company.\n(b) The Employee acknowledges that the Company has expended considerable resources to\ndevelop the confidential information and the relationships that the Company enjoys with its customers,\nsuppliers, employees, officers and other agents, and these assets of the Company are critical to the business of\nthe Company. The Employee agrees that the restrictions set forth below are necessary to prevent even the\ninadvertent disclosure of this confidential information or the interference with these relationships and to protect\nthe legitimate business interests of the Company and are reasonable in scope and content.\nSection 4. Protection of Information.\n(a) The Employee hereby covenants with Company that, throughout the term of his employment\nby the Company, Employee will serve Company's best interests loyally and diligently. Throughout the course of\nemployment by Company and thereafter, Employee will not disclose to any person, firm, corporation or entity\n(except when expressly authorized in writing by Company) any information relating to Company's business,\nincluding, without limitation, merchant application processing and credit underwriting software, merchant\ninformation systems, sales compensation and sales force automation software and systems, electronic payment\ntransaction processing software, fraud and risk analysis systems, human resources and time and attendance\ninformation systems and software, payroll services information systems and payroll application processing\nsoftware, sales policy documents, marketing communications materials, information relating to trade secrets,\nbusiness methods, products, processes, procedures, development or experimental projects, suppliers, customer\nlists or the needs O‘P customers or Prospective customers, clients, etc., and will not use such information for his\nown purpose or for the purpose of any person, firm, corporation or entity except the Company.\n(b) ]pon termination of his employment with the Company, the Employee shall deliver promptly\nto the Company all records, manuals, books, blank forms, documents, letters, memoranda, notes, notebooks,\nreports, data, tables, calculations or copies thereof that relate in any way to the business, products practices or\ntechniques of the Cornpany, and all other property trade secrets and confidential information of the Company,\nincluding, but not limited to, all documents that in whole or in part contain any trade secrets or confidential\ninformation of the Company, which in any of these cases are in his possession or under his control.\nSection 5. Covenant Not to Compete.\n(a) During the Restricted Period (as defined below), Employee will not (i) directly or indirectly\nengage in any business or activity which markets, sells or is developing products or services which compete\nwith the products or services marketed, sold or beinfg developed by the Company at the time of such\ntermination (such business or activity being hereinafter sometimes called a “Competing Business”), in any\ncountry, state, territory, region or other geographic area, whether in the United States or otherwise, in which, at\nthe time the Employee becomes no longer employed by the Company, the Company transacts business or sells\nor markets its products or services, whether such engagement by the Employee shafi be as an officer, principal,\nagent, director, owner, employee, partner, affiliate, consultant or other participant in any Competing Business,\nor (ii) assist others in engaging in any Competing Business in any manner described in the foregoing clause (i).\n(b) The Employee understands that the foregoing restrictions may limit his ability to earn a\nlivelihood in a business competitive to the business of the Company, but he nevertheless believes that he has\nreceived and will receive sufficient consideration and other benefits in connection with the Company's issuance\nof certain stock and stock o]Etlons to the Employee as well as other benefits to clearly justify such restrictions\nwhich, in any event (given his education, skills and ability), the Employee does not geheve would prevent him\nfrom earning a living.\n© “Restricted Period” shall mean the ]]Iaerlod commencing on the date hereof and ending on the\nlast day of the twelfth (12th) full calendar month following the Employee's termination for any reason\nwhatsoever including but not limited to involuntary termination (with or without Cause) and/or voluntary\ntermination; provided that the Restricted Period shall be extended by any amount of time that the Employee has\nfailed to comply with his promises contained in this Section 5 of this Agreement.\nSection 6. Non Solicitation.\n(a) During the period commencing on the date hereof and ending on the last day of the twelfth\n(12th) full calendar month following the Employee's termination for any reason whatsoever including but not\nlimited to involuntary termination (with or\nwithout Cause) and/or voluntary termination, Employee hereby covenants that he will not, directly or indirectly,\nsolicit, entice or induce any Customer or Supplier (as defined below) of the Company to (i) become a Customer\nor Supplier of any other person or entity engaged in any business activity that competes with any business\nconducted by the Company at any time during the period of Employee's employment with the Company, or any\nbusiness planned by the Company at any time during the period of Employee's employment with the Company\nor (ii) cease doing gusiness with the Company, and Employee agrees that he will not assist any person or entity\nin taking any action described in the foregoing clauses (i) and (ii). For purposes of this Section 6, (A) a\n“Customer” of the Company means any person, corporation, partnership, trust, division, business unit,\ndepartment or agency which, at the time of termination or within one year prior thereto, shall be or shall have\nbeen a customer, distributor or agent of the Company or shall be or shall have been contacted by the Company\nfor the purpose of soliciting it to become a customer, distributor or agent of the Company; and (B) a “Supplier”\nof the Company means any person, corporation, partnership, trust, division, business unit, department or agency\nwhich, at the time of termination or within one year prior thereto, shall be or shall have been a supplier, vendor,\nmanufacturer or developer for any product or service or significant component used in any product or service of\nthe Company.\n(b) During the period commencing on the date hereof and ending on the last day of the twenty-\nfourth (24th) full calendar month following the Employee's termination for any reason whatsoever, including\nbut not limited to involuntary termination (with or without Cause) and/or voluntary termination, the Employee\nwill not, directly or indirectly, induce other employees of the Company to terminate their employment with the\nCompany or engage in any Competing Business.\nSection 7. Company Right to Inventions.\nThe Employee shall promptly disclose, grant and assign ownership to the Company for its sole use and\nbenefit any and all inventions, improvements, technical information and suggestions relating in any way to the\nbusiness of the Company (whether patentable or not), which he may develop, acquire, conceive or reduce to\npractice while employed by the Company (whether or not during usual working hours), together with all patent\napplications, letters patent, copyrights and reissues thereof that may at any time be granted for or upon any such\ninvention, improvement or technical information. In connection therewith:\n(@) The Employee shall without charge, but at the expense of the Company, promptly at all times\nhereafter execute and deliver such applications, assignments, descriptions and other instruments as may be\nnecessary or proper in the opinion of the Company to vest title to any such inventions, improvements, technical\ninformation, patent ali:plications, atents, copyrights or reissues thereof in the corporation and to enable it to\nobtain and maintain the entire right and title thereto throughout the world; and\n(b) The Employee shall render to the Company at its expense (including a reasonable payment for\nthe time involved in case he is not then in its employ) all such assistance as it may require in the prosecution of\napplications for said patents, copyrights or reissues thereof, in the prosecution or defense of interferences which\nmay be declared involving any said applications, patents or copyrights and in any litigation in which the\nCompany may be involved re?fating to any such patents, inventions, improvements or technical information.\nSection 8. Remedies; Survival.\n(@) The Employee acknowledges and understands that the provisions of this Agreement are of a\nspecial and unique nature, the loss of which cannot be accurately compensated for in damages by an action at\nlaw, and that the breach or threatened breach of the provisions of this Agreement would cause the Company\nirreparable harm. In the event of a breach or threatened breach by the Employee of the provisions in Section 4,\nSection 5, Section 6, or Section 7 hereof, the Company shall be entitled to but not limited to injunctive relief\nrestraining him from such breach without posting any bond. Nothing herein contained shall be construed as\nprohibiting the Cornfpany from pursuing any other additional or alternative remedies available for any breach or\nthreatened breach of this Agreement, including but not limited to monetary damages.\n(b) Notwithstanding anything contained in the Agreement to the contrary, the provisions of\nSection 4, Section 5, Section 6, Section 7 and this Section 8, shall survive the expiration or other termination of\nthis Agreement or employment of the Employee by the Company until by their terms, such provisions are no\nlonger operative.\nSection 9. Other Agreements: Prohibition Against Use of Trade Secrets of Others.\na Employee represents and warrants to the Company that except for agreements set forth in\nExhibit A attached hereto, if any, he is not a party to any agreement or other arrangement with any other\ncorporation, partnership or entity relating to noncompetition with such entity or to non-disclosure of\nconfidential and proprietary information of such entity or to other matters similar to the matters set forth in this\nAgreement.\n(b) Employee represents, warrants and agrees that he can and will perform his duties for the\nCompany without the unauthorized use of any confidential and/or proprietary information of others.\nSection 10. General Provisions.\n(@) This Agreement and any or all terms hereof may not be changed, waived, discharged, or\nterminated orally, but only by way of an instrument in writing executed by the Company and the Employee.\n(b) This Agreement shall be governed by and construed in accordance with the laws of the State of\nNew Jersey without regard to legal principles pertaining to conflict of laws.\n© It is the desire and intent of the parties hereto that the provisions of this Agreement shall be\nenforced to the fullest extent permissible under the laws and public pollfcies applied in each jurisdiction in\nwhich enforcement is sou%ht. Accordingly, to the extent that a restriction contained in this Agreement is more\nrestrictive than Eermitted y the laws of any jurisdiction where this Agreement may be subject to review and\ninterpretation, the terms of such restriction, for the purpose only of the operation of such restriction in such\njurisdiction, shall be the maximum restriction allowed by the laws of such jurisdiction and such restriction shall\ne deemed to have been revised accordingly herein.\n(d) Any suit, action or proceeding arising out of or relating to this Agreement shall be brought\nonly in the Superior Court in the County of Mercer, New Jersey or the United States District Court for the\nDistrict of New Jersey, and Employee hereby agrees and consents to the personal and exclusive jurisdiction of\nsaid courts over him or her as to afifsuits, actions and proceedings arising out of or relating to this Agreement,\nand Employee further waives any claim that such suit, action or proceeding is brought in an improper or\ninconvenient forum.\n(e) If any portion of this Agreement shall be found to be invalid or contrary to public policy, the\nsame may be modified or stricken by a Court of competent jurisdiction, to the extent necessary to allow the\nCourt to enforce such provision in a manner which is as consistent with the original intent of the provision as\npossible. The striking or modification by the Court of any provision shall not have the effect of invalidating the\nAgreement as a whole.\n® This Agreement constitutes the entire and exclusive agreement between Employee and\nCompany pertaining to the subject matter thereof, and supersedes and replaces any and all earlier confidential\ninformation, invention and noncompetition agreements between Company and Employee and representations\nand understandings of the parties with respect thereto, without extinguishing whatsoever rights heretofore\nacquired by Company under any previous agreements.\n() The Company may assign any of its rights under this Agreement to any successor entity to the\nCompany, including, but not limited to, any entity formed by the Company to carry on the business of the\nCompany.\n[SIGNATURES APPEAR ON NEXT PAGE]\nIN WITNESS WHEREOQF, the Agreement has been executed as aforesaid.\nCOMPANY\nHEARTLAND PAYMENT SYSTEMS, INC.\nBy: /s/ Robert O. Carr\nName: Robert O. Carr\nTitle: Chief Executive Officer\nEMPLOYEE:\nBy: /s/ Michael A. Lawler\nName: Michael A. Lawler\n9\nEXHIBIT A\nOTHER AGREEMENTS\n[NONE]\n10	EX-10.9 6 pyexhibit109michaellawler.htm CONFIDENTIALITY, NON-COMPETE AGREEMENT MICHAEL LAWLER\nEMPLOYEE CONFIDENTIAL INFORMATION\nAND\nNONCOMPETITION AGREEMENT\nThis Employee Confidential Information and Noncompetition Agreement is made and entered into on\nthis 13th day of July, 2012, by and between Michael A. Lawler, hereinafter "Employee," and Heartland\nPayment Systems, Inc., a Delaware corporation (collectively with any and all current and future subsidiary\nand/or affiliate companies, the "Company").\nWHEREAS, Employee has established an employment relationship with the Company and has\nreceived, and may continue to receive, certain benefits including stock grants and options; and\nWHEREAS, by reason of employment by the Company, Employee has received, and will continue to\nreceive, the value and advantage of confidential information and special training and skills, and the expert\nknowledge and experience of the contacts with other Company employees; and\nWHEREAS, the future granting of stock grants and options represents an advantage to Employee and\nwas conditioned upon Employee entering into this Agreement; and\nNOW THEREFORE, in exchange for good and valuable consideration, the sufficiency and receipt of\nwhich is hereby acknowledged, it is agreed as follows:\nSection 1.\nScope of Agreement.\n(a)\nThis contract is not a contract of employment for any particular term. Employee's employment\nby the Company is at will, unless otherwise agreed by the Company and Employee in writing.\n(b)\nSeverance policies and procedures are as set forth in the Employee Policy Manual of the\nCompany; provided, that in the event of a conflict between this Agreement and the Employee Policy Manual,\nthis Agreement shall govern.\nSection 2.\nSeverance and Bonuses.\n(a)\nIn consideration of the covenants by Employee contained below, in the event of a termination\nof Employee's employment by action of the Company other than for Cause or Disability, the Employee will\nreceive severance pay, in an amount equal to the base salary that would have been paid for a period of twelve\n(12) months payable in accordance with the Company's regular payroll practices, plus medical benefits for such\n1\nperiod; provided, that the Employee shall not be eligible to receive such severance pay unless such termination\nof employment occurs after the ninetieth (90th) day of the Employee's employment by the Company. Medical\nbenefit continuation during such severance period shall be counted against the benefit continuation period\nrequired under COBRA.\n(b)\nIn the event of a termination of Employee's employment by action of the Company other than\nfor Cause or in the event of termination of Employee's employment by death of Employee, the Employee shall\nalso be entitled to receive a pro rata portion (based on the number of days of Employee's employment during\nthe fiscal quarter in which the Employee's employment is terminated) of any bonus payment that would have\nbeen payable to him for that fiscal quarter if the Employee had been in the employ of the Company for the full\nfiscal basis, quarter. but instead If the contemplated Employee's a compensation bonus paid on arrangement some longer did fiscal not period contemplate (such as a bonus a half-year payable or full on a year), quarterly then\nthe pro rata bonus shall be computed based on the number of days of Employee's employment during such\nlonger fiscal period in which the Employee's employment is terminated and the amount of the bonus payment\nthat would have been payable to him for such longer fiscal period. No bonus will be payable to the Employee\nwith respect to any bonus period commencing after the bonus period in which the Employee's employment\nterminated.\n(c)\nCause. "Cause" means:\n(i)\nThe Employee has breached the provisions of Section 4, Section 5, Section 6, or Section\n7 of this Agreement in any material respect;\n(ii)\nThe Employee has been convicted of, or plead guilty or no contest to, (A) fraud,\nmisappropriation or embezzlement in connection with the Company's business, or (B) a felony, and has\nfailed to submit a resignation in accordance with Section 2(e) below; or\n(iii)\nThe Employee has breached his or her duties hereunder or failed to perform his or her\nduties as an officer or employee of the Company, if such breach or failure has not been cured within\nthirty (30) days after receipt of written notice from the Company of such breach or failure.\nNotwithstanding the foregoing, the Employee shall not be deemed to have been terminated for Cause\npursuant to clause (i) above unless and until there shall have been delivered to the Employee (A) a notice of\ntermination and (B) a copy of a resolution duly adopted by the Board of Directors of the Company finding that,\nafter reasonable notice to the Employee and an opportunity to be heard, in the good faith opinion of the Board\nof Directors of the Company, the Employee has engaged in conduct constituting Cause for termination\nhereunder.\n2\n(d)\nDisability. "Disability" means any mental or physical condition that renders the Employee\nunable to perform the essential functions of his position, with or without reasonable accommodation, for a\nperiod in excess of six (6) months.\n(e)\nIf the Employee is ever convicted of, or pleads guilty or no contest to, any felony offense, then\nthe Employee shall immediately tender a resignation from each and every position the Employee then holds\nwith the Company (whether as officer, director, employee, consultant or otherwise).\nSection 3.\nEmployees' Acknowledgments.\n(a)\nThe Employee understands and acknowledges that because of the confidential and sensitive\nnature of the information to which the Employee will have access during the course of his employment with the\nCompany, any unauthorized use, disclosure or misappropriation of such information will cause irreparable\ndamage to the Company.\n(b)\nThe Employee acknowledges that the Company has expended considerable resources to\ndevelop the confidential information and the relationships that the Company enjoys with its customers,\nsuppliers, employees, officers and other agents, and these assets of the Company are critical to the business of\nthe Company. The Employee agrees that the restrictions set forth below are necessary to prevent even the\ninadvertent disclosure of this confidential information or the interference with these relationships and to protect\nthe legitimate business interests of the Company and are reasonable in scope and content.\nSection 4.\nProtection of Information.\n(a)\nThe Employee hereby covenants with Company that, throughout the term of his employment\nby the Company, Employee will serve Company's best interests loyally and diligently. Throughout the course of\nemployment\nby Company and thereafter, Employee will not disclose to any person, firm, corporation or entity\n(except when expressly authorized in writing by Company) any information relating to Company's business,\nincluding, without limitation, merchant application processing and credit underwriting software, merchant\ninformation\nsystems,\nsales\ncompensation\nand\nsales\nforce\nautomation\nsoftware\nand\nsystems,\nelectronic\npayment\ntransaction processing software, fraud and risk analysis systems, human resources and time and attendance\ninformation systems and software, payroll services information systems and payroll application processing\nsoftware, sales policy documents, marketing communications materials, information relating to trade secrets,\nbusiness methods, products, processes, procedures, development or experimental projects, suppliers, customer\nlists or the needs of customers or prospective customers, clients, etc., and will not use such information for his\nown purpose or for the purpose of any person, firm, corporation or entity except the Company.\n3\n(b)\nUpon termination of his employment with the Company, the Employee shall deliver promptly\nto the Company alf records, manuals, books, blank forms, documents, letters, memoranda, notes, notebooks,\nreports, data, tables, calculations or copies thereof that relate in any way to the business, products, practices or\ntechniques of the Company, and all other property trade secrets and confidential information of the Company,\nincluding, but not limited to, all documents that in whole or in part contain any trade secrets or confidential\ninformation of the Company, which in any of these cases are in his possession or under his control.\nSection 5.\nCovenant Not to Compete.\n(a)\nDuring the Restricted Period (as defined below), Employee will not (i) directly or indirectly\nengage in any business or activity which markets, sells or is developing products or services which compete\nwith the products or services marketed, sold or being developed by the Company at the time of such\ntermination (such business or activity being hereinafter sometimes called a "Competing Business"), in any\ncountry, state, territory, region or other geographic area, whether in the United States or otherwise, in which, at\nthe time the Employee becomes no longer employed by the Company, the Company transacts business or sells\nor markets its products or services, whether such engagement by the Employee shall be as an officer, principal,\nagent, or (ii) assist director, others owner, in engaging employee, in partner, any Competing affiliate, Business consultant in or any other manner participant described in any in the Competing foregoing Business, clause (i).\n(b) The Employee understands that the foregoing restrictions may limit his ability to earn a\nlivelihood in a business competitive to the business of the Company, but he nevertheless believes that he has\nreceived and will receive sufficient consideration and other benefits in connection with the Company's issuance\nof certain stock and stock options to the Employee as well as other benefits to clearly justify such restrictions\nwhich, in any event (given his education, skills and ability), the Employee does not believe would prevent him\nfrom earning a living.\n(c)\n"Restricted Period" shall mean the period commencing on the date hereof and ending on\nthe\nlast day of the twelfth (12th) full calendar month following the Employee's termination for any reason\nwhatsoever including but not limited to involuntary termination (with or without Cause) and/or voluntary\ntermination; provided that the Restricted Period shall be extended by any amount of time that the Employee has\nfailed to comply with his promises contained in this Section 5 of this Agreement.\nSection 6.\nNon Solicitation.\n(a)\nDuring the period commencing on the date hereof and ending on the last day of the twelfth\n(12th) full calendar month following the Employee's termination for any reason whatsoever including but not\nlimited to involuntary termination (with or\n4\nwithout Cause) and/or voluntary termination, Employee hereby covenants that he will not, directly or indirectly,\nsolicit, entice or induce any Customer or Supplier (as defined below) of the Company to (i) become a Customer\nor Supplier of any other person or entity engaged in any business activity that competes with any business\nconducted by the Company at any time during the period of Employee's employment with the Company, or any\nbusiness planned by the Company at any time during the period of Employee's employment with the Company\nor (ii) cease doing business with the Company, and Employee agrees that he will not assist any person or entity\nin\ntaking\nany\naction\ndescribed\nin\nthe\nforegoing\nclauses\n(i)\nand\n(ii).\nFor\npurposes\nof\nthis\nSection\n6,\n(A)\na\n"Customer" of the Company means any person, corporation, partnership, trust, division, business unit,\ndepartment or agency which, at the time of termination or within one year prior thereto, shall be or shall have\nbeen a customer, distributor or agent of the Company or shall be or shall have been contacted by the Company\nfor of the the Company purpose of means soliciting any person, it to become corporation, a customer, partnership, distributor trust, or division, agent of the business Company; unit, department and (B) a "Supplier" or agency\nwhich, at the time of termination or within one year prior thereto, shall be or shall have been a supplier, vendor,\nmanufacturer or developer for any product or service or significant component used in any product or service of\nthe Company.\n(b)\nDuring the period commencing on the date hereof and ending on the last day of the twenty-\nfourth (24th) full calendar month following the Employee's termination for any reason whatsoever, including\nbut not limited to involuntary termination (with or without Cause) and/or voluntary termination, the Employee\nwill not, directly or indirectly, induce other employees of the Company to terminate their employment with the\nCompany or engage in any Competing Business.\nSection 7. Company Right to Inventions.\nThe Employee shall promptly disclose, grant and assign ownership to the Company for its sole use and\nbenefit any and all inventions, improvements, technical information and suggestions relating in any way to the\nbusiness of the Company (whether patentable or not), which he may develop, acquire, conceive or reduce to\npractice while employed by the Company (whether or not during usual working hours), together with all patent\napplications, letters patent, copyrights and reissues thereof that may at any time be granted for or upon any such\ninvention, improvement or technical information. In connection therewith:\n(a)\nThe Employee shall without charge, but at the expense of the Company, promptly at all times\nhereafter execute and deliver such applications, assignments, descriptions and other instruments as may be\nnecessary or proper in the opinion of the Company to vest title to any such inventions, improvements, technical\ninformation, patent applications, patents, copyrights or reissues thereof in the corporation and to enable it to\nobtain and maintain the entire right and title thereto throughout the world; and\n5\n(b)\nThe Employee shall render to the Company at its expense (including a reasonable payment for\nthe time involved in case he is not then in its employ) all such assistance as it may require in the prosecution of\napplications for said patents, copyrights or reissues thereof, in the prosecution or defense of interferences which\nmay be declared involving any said applications, patents or copyrights and in any litigation in which the\nCompany may be involved relating to any such patents, inventions, improvements or technical information.\nSection 8.\nRemedies; Survival.\n(a)\nThe Employee acknowledges and understands that the provisions of this Agreement are of a\nspecial\nand\nunique\nnature,\nthe\nloss\nof\nwhich\ncannot\nbe\naccurately\ncompensated\nfor\nin\ndamages\nby\nan\naction\nat\nlaw, and that the breach or threatened breach of the provisions of this Agreement would cause the Company\nirreparable harm. In the event of a breach or threatened breach by the Employee of the provisions in Section 4,\nSection 5, Section 6, or Section 7 hereof, the Company shall be entitled to but not limited to injunctive relief\nrestraining him from such breach without posting any bond. Nothing herein contained shall be construed as\nprohibiting the Company from pursuing any other additional or alternative remedies available for any breach or\nthreatened breach of this Agreement, including but not limited to monetary damages.\n(b)\nNotwithstanding anything contained in the Agreement to the contrary, the provisions of\nSection 4, Section 5, Section 6, Section 7 and this Section 8, shall survive the expiration or other termination of\nthis Agreement or employment of the Employee by the Company until by their terms, such provisions are no\nlonger operative.\nSection 9.\nOther Agreements: Prohibition Against Use of Trade Secrets of Others.\n(a)\nEmployee represents and warrants to the Company that except for agreements set forth in\nExhibit A attached hereto, if any, he is not a party to any agreement or other arrangement with any other\ncorporation, partnership or entity relating to noncompetition with such entity or to non-disclosure of\nconfidential and proprietary information of such entity or to other matters similar to the matters set forth in this\nAgreement.\n(b)\nEmployee represents, warrants and agrees that he can and will perform his duties for the\nCompany without the unauthorized use of any confidential and/or proprietary information of others.\n6\nSection 10. General Provisions.\n(a)\nThis Agreement and any or all terms hereof may not be changed, waived, discharged, or\nterminated orally, but only by way of an instrument in writing executed by the Company and the Employee.\n(b)\nThis Agreement shall be governed by and construed in accordance with the laws of the State of\nNew Jersey without regard to legal principles pertaining to conflict of laws.\n(c)\nIt is the desire and intent of the parties hereto that the provisions of this Agreement shall be\nenforced\nto\nthe\nfullest\nextent\npermissible\nunder\nthe\nlaws\nand\npublic\npolicies\napplied\nin\neach\njurisdiction\nin\nwhich enforcement is sought. Accordingly, to the extent that a restriction contained in this Agreement is more\nrestrictive than permitted by the laws of any jurisdiction where this Agreement may be subject to review and\ninterpretation, the terms of such restriction, for the purpose only of the operation of such restriction in such\njurisdiction, shall be the maximum restriction allowed by the laws of such jurisdiction and such restriction shall\nbe deemed to have been revised accordingly herein.\n(d)\nAny suit, action or proceeding arising out of or relating to this Agreement shall be brought\nonly in the Superior Court in the County of Mercer, New Jersey or the United States District Court for the\nDistrict of New Jersey, and Employee hereby agrees and consents to the personal and exclusive jurisdiction of\nsaid courts over him or her as to all suits, actions and proceedings arising out of or relating to this Agreement,\nand Employee further waives any claim that such suit, action or proceeding is brought in an improper or\ninconvenient forum.\n(e)\nIf any portion of this Agreement shall be found to be invalid or contrary to public policy, the\nsame may be modified or stricken by a Court of competent jurisdiction, to the extent necessary to allow the\nCourt to enforce such provision in a manner which is as consistent with the original intent of the provision as\npossible. The striking or modification by the Court of any provision shall not have the effect of invalidating the\nAgreement as a whole.\n(f)\nThis Agreement constitutes the entire and exclusive agreement between Employee and\nCompany pertaining to the subject matter thereof, and supersedes and replaces any and all earlier confidential\ninformation, invention and noncompetition agreements between Company and Employee and representations\nand understandings of the parties with respect thereto, without extinguishing whatsoever rights heretofore\nacquired by Company under any previous agreements.\n7\n(g)\nThe Company may assign any of its rights under this Agreement to any successor entity to the\nCompany, including, but not limited to, any entity formed by the Company to carry on the business of the\nCompany.\n[SIGNATURES APPEAR ON NEXT PAGE]\n8\nIN WITNESS WHEREOF, the Agreement has been executed as aforesaid.\nCOMPANY\nHEARTLAND PAYMENT SYSTEMS, INC.\nBy:\n/s/ Robert O. Carr\nName: Robert O. Carr\nTitle: Chief Executive Officer\nEMPLOYEE:\nBy: /s/ Michael A. Lawler\nName: Michael A. Lawler\n9\nEXHIBIT A\nOTHER AGREEMENTS\n[NONE]\n10	EX-10 .9 6 hpyexhibit109michaellawler.htm CONFIDENTIALITY, NON-COMPETE AGREEMENT MICHAEL LAWLER\nEMPLOYEE CONFIDENTIAL INFORMATION\nAND\nNONCOMPETITION AGREEMENT\nThis Employee Confidential Information and Noncompetition Agreement is made and entered into on\nthis 13th day of July, 2012, by and between Michael A. Lawler, hereinafter “Employee,” and Heartland\nPayment Systems, Inc., a Delaware corporation (collectively with any and all current and future subsidiary\nand/or affiliate companies, the “Company”).\nWHEREAS, Employee has established an employment relationship with the Company and has\nreceived, and may continue to receive, certain benefits including stock grants and options; and\nWHEREAS, by reason of employment by the Company, Employee has received, and will continue to\nreceive, the value and advantage of confidential information and special training and skills, and the expert\nknowledge and experience of the contacts with other Company employees; and\nWHEREAS, the future granting of stock grants and options represents an advantage to Employee and\nwas conditioned upon Employee entering into this Agreement; and\nNOW THEREFORE, in exchange for good and valuable consideration, the sufficiency and receipt of\nwhich is hereby acknowledged, it is agreed as follows:\nSection 1. Scope of Agreement.\n(a)\nThis contract is not a contract of employment for any particular term. Employee's employment\nby the Company is at will, unless otherwise agreed by the Company and Employee in writing.\n(b)\nSeverance policies and procedures are as set forth in the Employee Policy Manual of the\nCompany; provided, that in the event of a conflict between this Agreement and the Employee Policy Manual,\nthis Agreement shall govern.\nSection 2. Severance and Bonuses.\n(a)\nIn consideration of the covenants by Employee contained below, in the event of a termination\nof Employee's employment by action of the Company other than for Cause or Disability, the Employee will\nreceive severance pay, in an amount equal to the base salary that would have been paid for a period of twelve\n(12) months payable in accordance with the Company's regular payroll practices, plus medical benefits for such\n1\nperiod; provided, that the Employee shall not be eligible to receive such severance pay unless such termination\nof employment occurs after the ninetieth (90th) day of the Employee's employment by the Company. Medical\nbenefit continuation during such severance period shall be counted against the benefit continuation period\nrequired under COBRA.\n(b)\nIn the event of a termination of Employee's employment by action of the Company other than\nfor Cause or in the event of termination of Employee's employment by death of Employee, the Employee shall\nalso be entitled to receive a pro rata portion (based on the number of days of Employee's employment during\nthe fiscal quarter in which the Employee's employment is terminated) of any bonus payment that would have\nbeen payable to him for that fiscal quarter if the Employee had been in the employ of the Company for the full\nfiscal quarter. If the Employee's compensation arrangement did not contemplate a bonus payable on a quarterly\nbasis, but instead contemplated a bonus paid on some longer fiscal period (such as a half-year or full year), then\nthe pro rata bonus shall be computed based on the number of days of Employee's employment during such\nlonger fiscal period in which the Employee's employment is terminated and the amount of the bonus payment\nthat would have been payable to him for such longer fiscal period. No bonus will be payable to the Employee\nwith respect to any bonus period commencing after the bonus period in which the Employee's employment\nterminated.\n(c)\nCause. “Cause” means:\n(i)\nThe Employee has breached the provisions of Section 4, Section 5, Section 6, or Section\n7 of this Agreement in any material respect;\n(ii)\nThe Employee has been convicted of, or plead guilty or no contest to, (A) fraud,\nmisappropriation or embezzlement in connection with the Company's business, or (B) a felony, and has\nfailed to submit a resignation in accordance with Section 2(e) below; or\n(iii)\nThe Employee has breached his or her duties hereunder or failed to perform his or her\nduties as an officer or employee of the Company, if such breach or failure has not been cured within\nthirty (30) days after receipt of written notice from the Company of such breach or failure.\nNotwithstanding the foregoing, the Employee shall not be deemed to have been terminated for Cause\npursuant to clause (i) above unless and until there shall have been delivered to the Employee (A) a notice of\ntermination and (B) a copy of a resolution duly adopted by the Board of Directors of the Company finding that,\nafter reasonable notice to the Employee and an opportunity to be heard, in the good faith opinion of the Board\nof Directors of the Company, the Employee has engaged in conduct constituting Cause for termination\nhereunder.\n2\n(d)\nDisability. “Disability” means any mental or physical condition that renders the Employee\nunable to perform the essential functions of his position, with or without reasonable accommodation, for a\nperiod in excess of six (6) months.\n(e)\nIf the Employee is ever convicted of, or pleads guilty or no contest to, any felony offense, then\nthe Employee shall immediately tender a resignation from each and every position the Employee then holds\nwith the Company (whether as officer, director, employee, consultant or otherwise).\nSection 3. Employees' Acknowledgments.\n(a)\nThe Employee understands and acknowledges that because of the confidential and sensitive\nnature of the information to which the Employee will have access during the course of his employment with the\nCompany, any unauthorized use, disclosure or misappropriation of such information will cause irreparable\ndamage to the Company.\n(b)\nThe Employee acknowledges that the Company has expended considerable resources to\ndevelop the confidential information and the relationships that the Company enjoys with its customers,\nsuppliers, employees, officers and other agents, and these assets of the Company are critical to the business of\nthe Company. The Employee agrees that the restrictions set forth below are necessary to prevent even the\ninadvertent disclosure of this confidential information or the interference with these relationships and to protect\nthe legitimate business interests of the Company and are reasonable in scope and content.\nSection 4. Protection of Information.\n(a)\nThe Employee hereby covenants with Company that, throughout the term of his employment\nby the Company, Employee will serve Company's best interests loyally and diligently. Throughout the course of\nemployment by Company and thereafter, Employee will not disclose to any person, firm, corporation or entity\n(except when expressly authorized in writing by Company) any information relating to Company's business,\nincluding, without limitation, merchant application processing and credit underwriting software, merchant\ninformation systems, sales compensation and sales force automation software and systems, electronic payment\ntransaction processing software, fraud and risk analysis systems, human resources and time and attendance\ninformation systems and software, payroll services information systems and payroll application processing\nsoftware, sales policy documents, marketing communications materials, information relating to trade secrets,\nbusiness methods, products, processes, procedures, development or experimental projects, suppliers, customer\nlists or the needs of customers or prospective customers, clients, etc., and will not use such information for his\nown purpose or for the purpose of any person, firm, corporation or entity except the Company.\n3\n(b)\nUpon termination of his employment with the Company, the Employee shall deliver promptly\nto the Company all records, manuals, books, blank forms, documents, letters, memoranda, notes, notebooks,\nreports, data, tables, calculations or copies thereof that relate in any way to the business, products, practices or\ntechniques of the Company, and all other property trade secrets and confidential information of the Company,\nincluding, but not limited to, all documents that in whole or in part contain any trade secrets or confidential\ninformation of the Company, which in any of these cases are in his possession or under his control.\nSection 5. Covenant Not to Compete.\n(a)\nDuring the Restricted Period (as defined below), Employee will not (i) directly or indirectly\nengage in any business or activity which markets, sells or is developing products or services which compete\nwith the products or services marketed, sold or being developed by the Company at the time of such\ntermination (such business or activity being hereinafter sometimes called a “Competing Business”), in any\ncountry, state, territory, region or other geographic area, whether in the United States or otherwise, in which, at\nthe time the Employee becomes no longer employed by the Company, the Company transacts business or sells\nor markets its products or services, whether such engagement by the Employee shall be as an officer, principal,\nagent, director, owner, employee, partner, affiliate, consultant or other participant in any Competing Business,\nor (ii) assist others in engaging in any Competing Business in any manner described in the foregoing clause (i).\n(b)\nThe Employee understands that the foregoing restrictions may limit his ability to earn a\nlivelihood in a business competitive to the business of the Company, but he nevertheless believes that he has\nreceived and will receive sufficient consideration and other benefits in connection with the Company's issuance\nof certain stock and stock options to the Employee as well as other benefits to clearly justify such restrictions\nwhich, in any event (given his education, skills and ability), the Employee does not believe would prevent him\nfrom earning a living.\n(c)\n“Restricted Period” shall mean the period commencing on the date hereof and ending on the\nlast day of the twelfth (12th) full calendar month following the Employee's termination for any reason\nwhatsoever including but not limited to involuntary termination (with or without Cause) and/or voluntary\ntermination; provided that the Restricted Period shall be extended by any amount of time that the Employee has\nfailed to comply with his promises contained in this Section 5 of this Agreement.\nSection 6. Non Solicitation.\n(a)\nDuring the period commencing on the date hereof and ending on the last day of the twelfth\n(12th) full calendar month following the Employee's termination for any reason whatsoever including but not\nlimited to involuntary termination (with or\n4\nwithout Cause) and/or voluntary termination, Employee hereby covenants that he will not, directly or indirectly,\nsolicit, entice or induce any Customer or Supplier (as defined below) of the Company to (i) become a Customer\nor Supplier of any other person or entity engaged in any business activity that competes with any business\nconducted by the Company at any time during the period of Employee's employment with the Company, or any\nbusiness planned by the Company at any time during the period of Employee's employment with the Company\nor (ii) cease doing business with the Company, and Employee agrees that he will not assist any person or entity\nin taking any action described in the foregoing clauses (i) and (ii). For purposes of this Section 6, (A) a\n“Customer” of the Company means any person, corporation, partnership, trust, division, business unit,\ndepartment or agency which, at the time of termination or within one year prior thereto, shall be or shall have\nbeen a customer, distributor or agent of the Company or shall be or shall have been contacted by the Company\nfor the purpose of soliciting it to become a customer, distributor or agent of the Company; and (B) a “Supplier”\nof the Company means any person, corporation, partnership, trust, division, business unit, department or agency\nwhich, at the time of termination or within one year prior thereto, shall be or shall have been a supplier, vendor,\nmanufacturer or developer for any product or service or significant component used in any product or service of\nthe Company.\n(b)\nDuring the period commencing on the date hereof and ending on the last day of the twenty-\nfourth (24th) full calendar month following the Employee's termination for any reason whatsoever, including\nbut not limited to involuntary termination (with or without Cause) and/or voluntary termination, the Employee\nwill not, directly or indirectly, induce other employees of the Company to terminate their employment with the\nCompany or engage in any Competing Business.\nSection 7. Company Right to Inventions.\nThe Employee shall promptly disclose, grant and assign ownership to the Company for its sole use and\nbenefit any and all inventions, improvements, technical information and suggestions relating in any way to the\nbusiness of the Company (whether patentable or not), which he may develop, acquire, conceive or reduce to\npractice while employed by the Company (whether or not during usual working hours), together with all patent\napplications, letters patent, copyrights and reissues thereof that may at any time be granted for or upon any such\ninvention, improvement or technical information. In connection therewith:\n(a)\nThe Employee shall without charge, but at the expense of the Company, promptly at all times\nhereafter execute and deliver such applications, assignments, descriptions and other instruments as may be\nnecessary or proper in the opinion of the Company to vest title to any such inventions, improvements, technical\ninformation, patent applications, patents, copyrights or reissues thereof in the corporation and to enable it to\nobtain and maintain the entire right and title thereto throughout the world; and\n5\n(b)\nThe Employee shall render to the Company at its expense (including a reasonable payment for\nthe time involved in case he is not then in its employ) all such assistance as it may require in the prosecution of\napplications for said patents, copyrights or reissues thereof, in the prosecution or defense of interferences which\nmay be declared involving any said applications, patents or copyrights and in any litigation in which the\nCompany may be involved relating to any such patents, inventions, improvements or technical information.\nSection 8. Remedies; Survival.\n(a)\nThe Employee acknowledges and understands that the provisions of this Agreement are of a\nspecial and unique nature, the loss of which cannot be accurately compensated for in damages by an action at\nlaw, and that the breach or threatened breach of the provisions of this Agreement would cause the Company\nirreparable harm. In the event of a breach or threatened breach by the Employee of the provisions in Section 4,\nSection 5, Section 6, or Section 7 hereof, the Company shall be entitled to but not limited to injunctive relief\nrestraining him from such breach without posting any bond. Nothing herein contained shall be construed as\nprohibiting the Company from pursuing any other additional or alternative remedies available for any breach or\nthreatened breach of this Agreement, including but not limited to monetary damages.\n(b)\nNotwithstanding anything contained in the Agreement to the contrary, the provisions of\nSection 4, Section 5, Section 6, Section 7 and this Section 8, shall survive the expiration or other termination of\nthis Agreement or employment of the Employee by the Company until by their terms, such provisions are no\nlonger operative.\nSection 9. Other Agreements: Prohibition Against Use of Trade Secrets of Others.\n(a)\nEmployee represents and warrants to the Company that except for agreements set forth in\nExhibit A attached hereto, if any, he is not a party to any agreement or other arrangement with any other\ncorporation, partnership or entity relating to noncompetition with such entity or to non-disclosure of\nconfidential and proprietary information of such entity or to other matters similar to the matters set forth in this\nAgreement.\n(b)\nEmployee represents, warrants and agrees that he can and will perform his duties for the\nCompany without the unauthorized use of any confidential and/or proprietary information of others.\n6\nSection 10. General Provisions.\n(a)\nThis Agreement and any or all terms hereof may not be changed, waived, discharged, or\nterminated orally, but only by way of an instrument in writing executed by the Company and the Employee.\n(b)\nThis Agreement shall be governed by and construed in accordance with the laws of the State of\nNew Jersey without regard to legal principles pertaining to conflict of laws.\n(c)\nIt is the desire and intent of the parties hereto that the provisions of this Agreement shall be\nenforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in\nwhich enforcement is sought. Accordingly, to the extent that a restriction contained in this Agreement is more\nrestrictive than permitted by the laws of any jurisdiction where this Agreement may be subject to review and\ninterpretation, the terms of such restriction, for the purpose only of the operation of such restriction in such\njurisdiction, shall be the maximum restriction allowed by the laws of such jurisdiction and such restriction shall\nbe deemed to have been revised accordingly herein.\n(d)\nAny suit, action or proceeding arising out of or relating to this Agreement shall be brought\nonly in the Superior Court in the County of Mercer, New Jersey or the United States District Court for the\nDistrict of New Jersey, and Employee hereby agrees and consents to the personal and exclusive jurisdiction of\nsaid courts over him or her as to all suits, actions and proceedings arising out of or relating to this Agreement,\nand Employee further waives any claim that such suit, action or proceeding is brought in an improper or\ninconvenient forum.\n(e)\nIf any portion of this Agreement shall be found to be invalid or contrary to public policy, the\nsame may be modified or stricken by a Court of competent jurisdiction, to the extent necessary to allow the\nCourt to enforce such provision in a manner which is as consistent with the original intent of the provision as\npossible. The striking or modification by the Court of any provision shall not have the effect of invalidating the\nAgreement as a whole.\n(f)\nThis Agreement constitutes the entire and exclusive agreement between Employee and\nCompany pertaining to the subject matter thereof, and supersedes and replaces any and all earlier confidential\ninformation, invention and noncompetition agreements between Company and Employee and representations\nand understandings of the parties with respect thereto, without extinguishing whatsoever rights heretofore\nacquired by Company under any previous agreements.\n7\n(g)\nThe Company may assign any of its rights under this Agreement to any successor entity to the\nCompany, including, but not limited to, any entity formed by the Company to carry on the business of the\nCompany.\n[SIGNATURES APPEAR ON NEXT PAGE]\n8\nIN WITNESS WHEREOF, the Agreement has been executed as aforesaid.\nCOMPANY\nHEARTLAND PAYMENT SYSTEMS, INC.\nBy: /s/ Robert O. Carr\nName: Robert O. Carr\nTitle: Chief Executive Officer\nEMPLOYEE:\nBy: /s/ Michael A. Lawler\nName: Michael A. Lawler\n9\nEXHIBIT A\nOTHER AGREEMENTS\n[NONE]\n10
ad2edbcc96c787344ad157abcc07325d.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 9 dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nMay 27, 2011\nCONFIDENTIAL\nTPG Capital, L.P.\n301 Commerce Street\nSuite 3300\nFort Worth, TX 76102\nAttention: Ronald Cami, Vice President\nLadies and Gentlemen:\nTPG Capital, L.P., a Texas limited partnership (“TPG”), and Immucor, Inc., a Georgia corporation (“Immucor”), each have expressed\ninterest in discussing steps that could lead to a negotiated transaction. TPG and Immucor are hereafter sometimes referred to individually as a\n“Party” and collectively as the “Parties”.\nThis letter agreement sets forth the Parties’ agreement and understanding with respect to the disclosure by a Party (the “Disclosing\nParty”) of certain of its confidential information regarding itself and its businesses to the other Party (the “Receiving Party”). As a condition to the\nDisclosing Party furnishing the Receiving Party with such information, the Receiving Party agrees to treat any information, whether written or oral,\nconcerning the Disclosing Party (whether prepared by the Disclosing Party, its advisors or otherwise) that is furnished to the Receiving Party,\nwhether before or after the date hereof, by or on behalf of the Disclosing Party regardless of whether such information is identified as “confidential”\n(herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement and to take or abstain from\ntaking certain other actions herein set forth. The Receiving Party recognizes and acknowledges the competitive value of the Evaluation Material and\nthe damage that could result to the Disclosing Party if any of the Evaluation Material was used or disclosed except as authorized by this letter\nagreement.\nFor purposes of this letter agreement, the term “Evaluation Material” includes, without limitation, all notes, files, analyses, compilations,\nspreadsheets, data, reports, studies, interpretations or other documents relating to (a) technology for use with blood and blood component products,\n(b) blood grouping, typing and genotyping and related instrumentation, (c) nucleic acid testing of infectious diseases for blood screening and related\ninstrumentation, (d) existing products, products in development, and intellectual property (whether owned or licensed), (e) market sizes, market\nshare, growth potential, market development plans and strategy, (f) financial statements, financial projections and related financial analysis,\n(g) litigation, investigations and other judicial or administrative proceedings, (h) vendors, suppliers, customers, distributors and other commercial\nrelationships, and (i) any other aspects of the Disclosing Party’s business, furnished to the Receiving Party or its directors, officers, employees,\nagents, advisors (including, without limitation, attorneys, accountants, consultants and financial advisors) and lenders and other sources of debt or\nequity financing (collectively, the “Representatives”) or prepared by the Receiving Party or its Representatives to the extent such materials reflect or\nare based upon, in whole or in part, the Evaluation Material or the Receiving\nTPG Capital, L.P.\nMay 27, 2011\nPage 2\nParty’s review, or interest in, the Disclosing Party. Notwithstanding the foregoing, Ron Labrum shall be deemed to be a Representative of TPG.\nNotwithstanding the preceding sentence, the term “Evaluation Material” does not include information that (i) is or becomes available to the\nReceiving Party on a nonconfidential basis from a source other than the Disclosing Party or its Representatives (provided that such source is not,\nafter reasonable inquiry, known to the Receiving Party to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation to, the Disclosing Party or its Representatives that prohibits such disclosure), (ii) is or becomes generally available to the public other than\nas a result of a disclosure by the Receiving Party or its Representatives in violation of this letter agreement, or (iii) has been or is independently\ndeveloped by the Receiving Party or its Representatives without the use of the Evaluation Material or in violation of the terms of this letter\nagreement.\n1. The Receiving Party hereby agrees that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating\nand negotiating a possible negotiated transaction between the Parties and/or one or more affiliates and/or subsidiaries of the Parties (a “Possible\nTransaction”); provided, however, that, subject to the last sentence of this paragraph 1, the Evaluation Material may be disclosed (a) to\nRepresentatives who need to know such information for the sole purpose of evaluating and negotiating a Possible Transaction and (b) as the\nDisclosing Party may otherwise consent in writing. All such Representatives shall be informed by the Receiving Party of the confidential nature of\nthe Evaluation Material and of the terms of this letter agreement, and the Receiving Party shall cause all such Representatives to agree to keep the\nEvaluation Material strictly confidential and to abide by the terms hereof to the same extent as if they were parties to this letter agreement; provided,\nhowever, that the restrictions set forth in paragraphs 6 and 7 shall not apply to the Receiving Party’s agents and advisors (including, without\nlimitation, attorneys, accountants, consultants and financial advisors). The Receiving Party agrees to be responsible for any breaches of, or failures to\ncomply with, any of the provisions of this letter agreement by it or any of its Representatives, provided that the Receiving Party shall not be\nresponsible for any of its Representatives that have entered into, or that subsequently enter into, any separate confidentiality agreement with the\nDisclosing Party containing provisions mutually acceptable to the parties thereto. The Receiving Party further agrees that the Disclosing Party\nreserves the right to adopt additional specific procedures to protect the confidentiality of certain sensitive Evaluation Material, provided that the\nReceiving Party shall not be obligated to comply with such procedures until such time as the Disclosing Party has provided the Receiving Party with\nwritten notice of such procedures. Notwithstanding anything in this letter agreement to the contrary (including the definition of “Representatives”),\nthe Receiving Party hereby agrees that it will not, and will cause its Representatives not to, (i) contact or check conflicts with any potential lenders or\nother sources of debt or equity financing with respect to the Possible Transaction or (ii) directly or indirectly, share the Evaluation Material with or\nenter into any agreement, arrangement or understanding, or any discussions which could reasonably be expected to lead to such an agreement,\narrangement or understanding, with any potential lenders or other sources of debt or equity financing, in each case without the prior written consent\nof Immucor and only upon such person executing a confidentiality agreement in favor of Immucor with terms and conditions satisfactory to\nImmucor.\nTPG Capital, L.P.\nMay 27, 2011\nPage 3\n2. Without the prior written consent of the other Party, except as required by applicable law, regulation, legal process or stock exchange\nregulations (in which case the Party seeking to make such disclosure will use its reasonable best efforts to notify the other Party in advance of such\nproposed disclosure), neither Party will, and each Party will cause its Representatives not to, disclose to any person (a) the fact that investigations,\ndiscussions or negotiations are taking place or have taken place concerning a Possible Transaction, (b) any of the terms, conditions or other facts\nwith respect to any such Possible Transaction, including the status thereof or the fact that the other Party is considering or has considered such a\nPossible Transaction, or (c) that this letter agreement exists, or that Evaluation Material has been requested or made available to it or its\nRepresentatives. The term “person” as used in this letter agreement shall be interpreted broadly to include any corporation, company, governmental\nagency or body, entity, partnership, group or individual.\n3. Each Party hereby acknowledges that it and its Representatives are aware that the United States securities laws generally prohibit any\nperson who has material, non-public information concerning a company from purchasing or selling securities of such company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase\nor sell such securities.\n4. Notwithstanding the foregoing, in the event the Receiving Party or any of its Representatives receives a request or is required by\napplicable law, regulation or legal process (including by deposition, interrogatory, request for documents, subpoena, civil investigative demand or\nsimilar process) to disclose all or any part of the Evaluation Material, the Receiving Party or its Representatives, as the case may be, agree to\n(a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such request or requirement (to the extent such\nnotification is legally permitted), (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such\nrequest or requirement, and (c) assist the Disclosing Party, at the Disclosing Party’s expense, in seeking a protective order or other appropriate\nremedy (if the Disclosing Party chooses to seek such an order or remedy, in its sole discretion). In the event that such protective order or other\nremedy is not sought or obtained, the Receiving Party or its Representatives, as the case may be, may disclose only that portion of the Evaluation\nMaterial which the Receiving Party or its Representatives, as the case may be, are advised by outside counsel in writing is legally required to be\ndisclosed, and the Receiving Party or its Representatives shall exercise reasonable best efforts to obtain assurance that confidential treatment will be\naccorded such Evaluation Material.\n5. Unless otherwise agreed to by the Parties in writing, (a) all communications regarding the Possible Transaction will be submitted or\ndirected exclusively to the individuals set forth in Exhibit A to this letter agreement and (b) each Party agrees not to directly or indirectly contact or\ncommunicate with any other executive or employee of the other Party concerning a Possible Transaction or to seek any information in connection\ntherewith from any such person.\n6. Each Party agrees that, for a period of eighteen months after the date hereof, neither it nor any of its affiliates (including its related or\nmanaged portfolio companies\nTPG Capital, L.P.\nMay 27, 2011\nPage 4\nand managers) who in each case have received Evaluation Material of the other Party or who such Party or such Party’s Representatives have made\naware of a Possible Transaction will, directly or indirectly, solicit for employment or employ, or cause to leave the employ of the other Party, any\nindividual serving as (a) an officer of the other Party, or (b) any employee of the other Party with whom a Party has had substantive contact, or who\nis specifically identified to a Party, during a Party’s investigation of such other Party and its business, in each case without obtaining the prior written\nconsent of the other Party; provided, however, that the foregoing provision shall not preclude a Party or such of its affiliates from making good faith\ngeneralized solicitations for employees (not targeted at employees of the other Party or any of its controlled affiliates) through advertisements or\nsearch firms and hiring any persons solely resulting through such solicitations provided that neither such Party nor any of its Representatives\nencourages or advises such firm to approach any such employee.\n7. TPG agrees that, for a period that is the shorter of (a) eighteen (18) months after the date hereof or (b) twelve (12) months after the\ndate on which discussions between the Parties regarding a Possible Transaction cease, neither it nor any of its directors, officers, employees or\naffiliates (including its related or managed portfolio companies and managers which have received Evaluation Material of Immucor or which have\nbeen made aware of a Possible Transaction by TPG or TPG’s Representatives) will, unless specifically invited in writing by the board of directors of\nImmucor, acting by resolution approved by a majority of all members of the board, directly or indirectly, in any manner (TPG’s obligations pursuant\nto this paragraph being, the “Standstill”): (a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly,\nalone or in concert with others, by purchase or otherwise, any direct or indirect beneficial interest in any voting or other securities or direct or\nindirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting or other securities of Immucor or any of\nits subsidiaries (collectively, the “Company”), (b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any\n“solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to\nSection 14 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), whether subject to or exempt from the proxy rules, or seek to\nadvise or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company, (c) form, join\nor any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting or other securities of the\nCompany, (d) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise,\n(i) any of the assets, tangible and intangible, of the Company or (ii) direct or indirect rights, warrants or options to acquire any assets of the\nCompany, (e) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting or other securities or securities\nconvertible or exchangeable into or exercisable for any voting or other securities or assets of the Company, (f) otherwise act, alone or in concert with\nothers, to seek to propose to the Company or any of its shareholders any merger, business combination, share exchange, consolidation, sale,\nrestructuring, reorganization, recapitalization or other transaction involving the Company or otherwise seek, alone or in concert with others, to\ncontrol, change or influence the management, board of directors or policies of the Company or nominate any person as a director who is not\nTPG Capital, L.P.\nMay 27, 2011\nPage 5\nnominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company, (g) make any request or\nproposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any\nprovision of the Standstill, or (h) announce an intention to do, or enter into any arrangement or understanding with others to do, any of the actions\nrestricted or prohibited under clauses (a) through (g) of this Standstill, or take any action that would reasonably be expected to result in the Company\nhaving to make a public announcement regarding any of the matters referred to in clauses (a) through (g) of the Standstill. For the avoidance of\ndoubt, TPG’s related or managed portfolio companies and managers which have not received Evaluation Material of Immucor and which have not\nbeen made aware of a Possible Transaction by TPG or TPG’s Representatives shall be deemed not to be affiliates of TPG for purposes of the\nimmediately preceding sentence.\n8. This letter agreement does not constitute or create any obligation on the part of either Party or its Representatives to provide any\nparticular Evaluation Material to the other Party. Although the Disclosing Party has endeavored to include in the Evaluation Material information\nknown to it which it believes to be relevant for the purpose of the Receiving Party’s investigation, the Receiving Party understands and\nacknowledges that none of the Disclosing Party or its affiliates or Representatives have made or make any representation or warranty, express or\nimplied, as to the accuracy or completeness of the Evaluation Material. The Receiving Party agrees that none of the Disclosing Party or its affiliates\nor Representatives shall have any liability to the Receiving Party or any of its Representatives resulting from the selection, use or content of the\nEvaluation Material by the Receiving Party or its Representatives.\n9. Upon the Disclosing Party’s written request, the Receiving Party shall, and shall cause its Representatives to, promptly, and in any\nevent within ten business days after such request, deliver to the Disclosing Party or, at the Receiving Party’s option, destroy all written Evaluation\nMaterial and any other written materials constituting Evaluation Material without retaining, in whole or in part, any copies, extracts or other\nreproductions (whatever the form or storage medium) of such materials, and shall certify the return or the destruction (as the case may be) of such\nmaterials in writing to the Disclosing Party; provided, however, that the decision of whether to deliver to the Disclosing Party or destroy any written\nEvaluation Material furnished by or on behalf of the Disclosing Party relating to any litigation or Department of Justice, FDA or other government\ninvestigation, action or inquiry (“Restricted Evaluation Material”) shall be at the option of the Disclosing Party. To the extent any Evaluation\nMaterial (or Restricted Evaluation Material) has been incorporated into materials developed by the Receiving Party or its Representatives, the\nReceiving Party shall, and shall ensure that its Representatives, destroy such materials promptly, and in any event within ten business days after the\nDisclosing Party’s written request to destroy such materials. Notwithstanding the foregoing, (i) the Receiving Party and its Representatives that are\nattorneys, financial advisors, accounting firms, lenders or other consultants may retain, solely for compliance purposes, copies of the Evaluation\nMaterial if such party determines after consulting with counsel that such retention is necessary to comply with law or regulation and (ii) the\nReceiving Party and its Representatives shall not be required to use more than commercially reasonable efforts to expunge any Evaluation Material\nstored\nTPG Capital, L.P.\nMay 27, 2011\nPage 6\nelectronically on back up servers that are routinely overwritten. Notwithstanding the return or destruction of the Evaluation Material, the Receiving\nParty and its Representatives will continue to be bound by their obligations under this letter agreement during the term hereof.\n10. Each Party acknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of\nthis letter agreement by the other Party or such other Party’s affiliates or Representatives and that, in the event of any breach or threatened breach\nhereof, (a) the non-breaching Party shall be entitled to injunctive and other equitable relief, without proof of actual damages, (b) the breaching Party\nshall not plead in defense thereto that there would be an adequate remedy at law, and (c) the breaching Party agrees to waive, and to use its\nreasonable best efforts to cause its Representatives to waive, any applicable right or requirement that a bond be posted by the non-breaching Party.\nSuch remedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law\nor in equity.\n11. Each Party agrees that unless and until a definitive agreement between the Parties with respect to a Possible Transaction has been\nexecuted and delivered, neither Party nor any Representative of either Party will be under any legal obligation of any kind whatsoever by virtue of\nthis or any written or oral expression with respect to any Possible Transaction except, in the case of this letter agreement, for the matters specifically\nagreed to herein, and each Party hereby waives, in advance, any claims (including, without limitation, breach of contract) in connection with any\nPossible Transaction. For purposes of this letter agreement, the term “definitive agreement” does not include an executed letter of intent or any other\npreliminary written agreement (including drafts or other documents that are exchanged relating to a Possible Transaction), nor does it include any\noral acceptance of an offer or bid by either Party. The agreement set forth in this paragraph may be modified or waived only pursuant to a separate\nwriting (a) expressly so modifying or waiving such agreement and (b) executed by the Parties.\n12. If any term or provision of this letter agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the\nremainder of the terms and provisions of this letter agreement shall remain in full force and effect and shall in no way be affected, impaired or\ninvalidated.\n13. No waiver of any provision of this letter agreement, or of a breach hereof, shall be effective unless it is expressly stated in a writing\nsigned by the Party waiving the provision or the breach hereof. No waiver of a breach of this letter agreement (whether express or implied) shall\nconstitute a waiver of a subsequent breach hereof. Each Party understands and agrees that no failure or delay by the other Party in exercising any\nright, power or privilege under this letter agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any\nother or future exercise of any right, power or privilege hereunder.\n14. This letter agreement shall be governed by and construed in accordance with the laws of the State of New York.\nTPG Capital, L.P.\nMay 27, 2011\nPage7\n15. This letter agreement shall be binding upon the Parties and upon their respective successors and permitted assigns. Neither Party is\npermitted to assign any of its rights or delegate any of its duties under this letter agreement without the prior written consent of the other Party, and\nany attempt to do so without such consent shall be void.\n16. This letter agreement shall expire and cease to have any force or effect on the earlier of (a) the date that is the second anniversary of\nthe date of this letter agreement and (b) the date on which the Possible Transaction is consummated.\n17. Effective as of the date first set forth above, this letter agreement supersedes and replaces the prior Confidentiality Agreement\nbetween the Parties dated May 5, 2011.\n18. This letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall\nconstitute the same agreement. One or more counterparts of this letter agreement may be delivered by telecopier or PDF electronic transmission,\nwith the intention that they shall have the same effect as an original counterpart hereof.\n19. Immucor agrees that neither Immucor nor any of its Representatives will share with any other person (including, without limitation,\nany other potential participants in a transaction similar to the Possible Transaction) any analysis or other work product prepared by TPG or any of its\nRepresentatives in connection with the Possible Transaction.\nVery truly yours,\nImmucor, Inc.\nBy: /s/ Philip H. Moise\nPhilip H. Moise\nEVP & General Counsel\nTPG Capital, L.P.\nMay 27, 2011\nPage 8\nConfirmed and Agreed to:\nTPG Capital, L.P.\nBy: TPG Capital Advisors, LLC\nBy: /s/ Ronald Cami\nName: Ronald Cami\nTitle: Vice President\nDate: May 27, 2011	EX-99.(D)(2) 9 dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nMay 27, 2011\nCONFIDENTIAL\nTPG Capital, L.P.\n301 Commerce Street\nSuite 3300\nFort Worth, TX 76102\nAttention: Ronald Cami, Vice President\nLadies and Gentlemen:\nTPG Capital, L.P., a Texas limited partnership (“IPG”), and Immucor, Inc., a Georgia corporation (“Immucor”), each have expressed\ninterest in discussing steps that could lead to a negotiated transaction. TPG and Immucor are hereafter sometimes referred to individually as a\n“Party” and collectively as the “Parties”.\nThis letter agreement sets forth the Parties’ agreement and understanding with respect to the disclosure by a Party (the “Disclosing\nParty”) of certain of its confidential information regarding itself and its businesses to the other Party (the “Receiving Party”). As a condition to the\nDisclosing Party furnishing the Receiving Party with such information, the Receiving Party agrees to treat any information, whether written or oral,\nconcerning the Disclosing Party (whether prepared by the Disclosing Party, its advisors or otherwise) that is furnished to the Receiving Party,\nwhether before or after the date hereof, by or on behalf of the Disclosing Party regardless of whether such information is identified as “confidential”\n(herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement and to take or abstain from\ntaking certain other actions herein set forth. The Receiving Party recognizes and acknowledges the competitive value of the Evaluation Material and\nthe damage that could result to the Disclosing Party if any of the Evaluation Material was used or disclosed except as authorized by this letter\nagreement.\nFor purposes of this letter agreement, the term “Evaluation Material” includes, without limitation, all notes, files, analyses, compilations,\nspreadsheets, data, reports, studies, interpretations or other documents relating to (a) technology for use with blood and blood component products,\n(b) blood grouping, typing and genotyping and related instrumentation, (c) nucleic acid testing of infectious diseases for blood screening and related\ninstrumentation, (d) existing products, products in development, and intellectual property (whether owned or licensed), (e) market sizes, market\nshare, growth potential, market development plans and strategy, (f) financial statements, financial projections and related financial analysis,\n(g) litigation, investigations and other judicial or administrative proceedings, (h) vendors, suppliers, customers, distributors and other commercial\nrelationships, and (i) any other aspects of the Disclosing Party’s business, furnished to the Receiving Party or its directors, officers, employees,\nagents, advisors (including, without limitation, attorneys, accountants, consultants and financial advisors) and lenders and other sources of debt or\nequity financing (collectively, the “Representatives”) or prepared by the Receiving Party or its Representatives to the extent such materials reflect or\nare based upon, in whole or in part, the Evaluation Material or the Receiving\nTPG Capital, L.P.\nMay 27, 2011\nPage 2\nParty’s review, or interest in, the Disclosing Party. Notwithstanding the foregoing, Ron Labrum shall be deemed to be a Representative of TPG.\nNotwithstanding the preceding sentence, the term “Evaluation Material” does not include information that (i) is or becomes available to the\nReceiving Party on a nonconfidential basis from a source other than the Disclosing Party or its Representatives (provided that such source is not,\nafter reasonable inquiry, known to the Receiving Party to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation to, the Disclosing Party or its Representatives that prohibits such disclosure), (ii) is or becomes generally available to the public other than\nas a result of a disclosure by the Receiving Party or its Representatives in violation of this letter agreement, or (iii) has been or is independently\ndeveloped by the Receiving Party or its Representatives without the use of the Evaluation Material or in violation of the terms of this letter\nagreement.\n1. The Receiving Party hereby agrees that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating\nand negotiating a possible negotiated transaction between the Parties and/or one or more affiliates and/or subsidiaries of the Parties (a “Possible\nTransaction”); provided, however, that, subject to the last sentence of this paragraph 1, the Evaluation Material may be disclosed (a) to\nRepresentatives who need to know such information for the sole purpose of evaluating and negotiating a Possible Transaction and (b) as the\nDisclosing Party may otherwise consent in writing. All such Representatives shall be informed by the Receiving Party of the confidential nature of\nthe Evaluation Material and of the terms of this letter agreement, and the Receiving Party shall cause all such Representatives to agree to keep the\nEvaluation Material strictly confidential and to abide by the terms hereof to the same extent as if they were parties to this letter agreement; provided,\nhowever, that the restrictions set forth in paragraphs 6 and 7 shall not apply to the Receiving Party’s agents and advisors (including, without\nlimitation, attorneys, accountants, consultants and financial advisors). The Receiving Party agrees to be responsible for any breaches of, or failures to\ncomply with, any of the provisions of this letter agreement by it or any of its Representatives, provided that the Receiving Party shall not be\nresponsible for any of its Representatives that have entered into, or that subsequently enter into, any separate confidentiality agreement with the\nDisclosing Party containing provisions mutually acceptable to the parties thereto. The Receiving Party further agrees that the Disclosing Party\nreserves the right to adopt additional specific procedures to protect the confidentiality of certain sensitive Evaluation Material, provided that the\nReceiving Party shall not be obligated to comply with such procedures until such time as the Disclosing Party has provided the Receiving Party with\nwritten notice of such procedures. Notwithstanding anything in this letter agreement to the contrary (including the definition of “Representatives”),\nthe Receiving Party hereby agrees that it will not, and will cause its Representatives not to, (i) contact or check conflicts with any potential lenders or\nother sources of debt or equity financing with respect to the Possible Transaction or (ii) directly or indirectly, share the Evaluation Material with or\nenter into any agreement, arrangement or understanding, or any discussions which could reasonably be expected to lead to such an agreement,\narrangement or understanding, with any potential lenders or other sources of debt or equity financing, in each case without the prior written consent\nof Immucor and only upon such person executing a confidentiality agreement in favor of Immucor with terms and conditions satisfactory to\nImmucor.\nTPG Capital, L.P.\nMay 27, 2011\nPage 3\n2. Without the prior written consent of the other Party, except as required by applicable law, regulation, legal process or stock exchange\nregulations (in which case the Party seeking to make such disclosure will use its reasonable best efforts to notify the other Party in advance of such\nproposed disclosure), neither Party will, and each Party will cause its Representatives not to, disclose to any person (a) the fact that investigations,\ndiscussions or negotiations are taking place or have taken place concerning a Possible Transaction, (b) any of the terms, conditions or other facts\nwith respect to any such Possible Transaction, including the status thereof or the fact that the other Party is considering or has considered such a\nPossible Transaction, or (c) that this letter agreement exists, or that Evaluation Material has been requested or made available to it or its\nRepresentatives. The term “person” as used in this letter agreement shall be interpreted broadly to include any corporation, company, governmental\nagency or body, entity, partnership, group or individual.\n3. Each Party hereby acknowledges that it and its Representatives are aware that the United States securities laws generally prohibit any\nperson who has material, non-public information concerning a company from purchasing or selling securities of such company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase\nor sell such securities.\n4. Notwithstanding the foregoing, in the event the Receiving Party or any of its Representatives receives a request or is required by\napplicable law, regulation or legal process (including by deposition, interrogatory, request for documents, subpoena, civil investigative demand or\nsimilar process) to disclose all or any part of the Evaluation Material, the Receiving Party or its Representatives, as the case may be, agree to\n(a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such request or requirement (to the extent such\nnotification is legally permitted), (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such\nrequest or requirement, and (c) assist the Disclosing Party, at the Disclosing Party’s expense, in seeking a protective order or other appropriate\nremedy (if the Disclosing Party chooses to seek such an order or remedy, in its sole discretion). In the event that such protective order or other\nremedy is not sought or obtained, the Receiving Party or its Representatives, as the case may be, may disclose only that portion of the Evaluation\nMaterial which the Receiving Party or its Representatives, as the case may be, are advised by outside counsel in writing is legally required to be\ndisclosed, and the Receiving Party or its Representatives shall exercise reasonable best efforts to obtain assurance that confidential treatment will be\naccorded such Evaluation Material.\n5. Unless otherwise agreed to by the Parties in writing, (a) all communications regarding the Possible Transaction will be submitted or\ndirected exclusively to the individuals set forth in Exhibit A to this letter agreement and (b) each Party agrees not to directly or indirectly contact or\ncommunicate with any other executive or employee of the other Party concerning a Possible Transaction or to seek any information in connection\ntherewith from any such person.\n6. Each Party agrees that, for a period of eighteen months after the date hereof, neither it nor any of its affiliates (including its related or\nmanaged portfolio companies\nTPG Capital, L.P.\nMay 27, 2011\nPage 4\nand managers) who in each case have received Evaluation Material of the other Party or who such Party or such Party’s Representatives have made\naware of a Possible Transaction will, directly or indirectly, solicit for employment or employ, or cause to leave the employ of the other Party, any\nindividual serving as (a) an officer of the other Party, or (b) any employee of the other Party with whom a Party has had substantive contact, or who\nis specifically identified to a Party, during a Party’s investigation of such other Party and its business, in each case without obtaining the prior written\nconsent of the other Party; provided, however, that the foregoing provision shall not preclude a Party or such of its affiliates from making good faith\ngeneralized solicitations for employees (not targeted at employees of the other Party or any of its controlled affiliates) through advertisements or\nsearch firms and hiring any persons solely resulting through such solicitations provided that neither such Party nor any of its Representatives\nencourages or advises such firm to approach any such employee.\n7. TPG agrees that, for a period that is the shorter of (a) eighteen (18) months after the date hereof or (b) twelve (12) months after the\ndate on which discussions between the Parties regarding a Possible Transaction cease, neither it nor any of its directors, officers, employees or\naffiliates (including its related or managed portfolio companies and managers which have received Evaluation Material of Immucor or which have\nbeen made aware of a Possible Transaction by TPG or TPG’s Representatives) will, unless specifically invited in writing by the board of directors of\nImmucor, acting by resolution approved by a majority of all members of the board, directly or indirectly, in any manner (TPG’s obligations pursuant\nto this paragraph being, the “Standstill”): (a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly,\nalone or in concert with others, by purchase or otherwise, any direct or indirect beneficial interest in any voting or other securities or direct or\nindirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting or other securities of Immucor or any of\nits subsidiaries (collectively, the “Company”), (b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any\n“solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to\nSection 14 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), whether subject to or exempt from the proxy rules, or seek to\nadvise or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company, (c) form, join\nor any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting or other securities of the\nCompany, (d) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise,\n(i) any of the assets, tangible and intangible, of the Company or (ii) direct or indirect rights, warrants or options to acquire any assets of the\nCompany, (e) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting or other securities or securities\nconvertible or exchangeable into or exercisable for any voting or other securities or assets of the Company, (f) otherwise act, alone or in concert with\nothers, to seek to propose to the Company or any of its shareholders any merger, business combination, share exchange, consolidation, sale,\nrestructuring, reorganization, recapitalization or other transaction involving the Company or otherwise seek, alone or in concert with others, to\ncontrol, change or influence the management, board of directors or policies of the Company or nominate any person as a director who is not\nTPG Capital, L.P.\nMay 27, 2011\nPage 5\nnominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company, (g) make any request or\nproposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any\nprovision of the Standstill, or (h) announce an intention to do, or enter into any arrangement or understanding with others to do, any of the actions\nrestricted or prohibited under clauses (a) through (g) of this Standstill, or take any action that would reasonably be expected to result in the Company\nhaving to make a public announcement regarding any of the matters referred to in clauses (a) through (g) of the Standstill. For the avoidance of\ndoubt, TPG’s related or managed portfolio companies and managers which have not received Evaluation Material of Immucor and which have not\nbeen made aware of a Possible Transaction by TPG or TPG’s Representatives shall be deemed not to be affiliates of TPG for purposes of the\nimmediately preceding sentence.\n8. This letter agreement does not constitute or create any obligation on the part of either Party or its Representatives to provide any\nparticular Evaluation Material to the other Party. Although the Disclosing Party has endeavored to include in the Evaluation Material information\nknown to it which it believes to be relevant for the purpose of the Receiving Party’s investigation, the Receiving Party understands and\nacknowledges that none of the Disclosing Party or its affiliates or Representatives have made or make any representation or warranty, express or\nimplied, as to the accuracy or completeness of the Evaluation Material. The Receiving Party agrees that none of the Disclosing Party or its affiliates\nor Representatives shall have any liability to the Receiving Party or any of its Representatives resulting from the selection, use or content of the\nEvaluation Material by the Receiving Party or its Representatives.\n9. Upon the Disclosing Party’s written request, the Receiving Party shall, and shall cause its Representatives to, promptly, and in any\nevent within ten business days after such request, deliver to the Disclosing Party or, at the Receiving Party’s option, destroy all written Evaluation\nMaterial and any other written materials constituting Evaluation Material without retaining, in whole or in part, any copies, extracts or other\nreproductions (whatever the form or storage medium) of such materials, and shall certify the return or the destruction (as the case may be) of such\nmaterials in writing to the Disclosing Party; provided, however, that the decision of whether to deliver to the Disclosing Party or destroy any written\nEvaluation Material furnished by or on behalf of the Disclosing Party relating to any litigation or Department of Justice, FDA or other government\ninvestigation, action or inquiry (“Restricted Evaluation Material”) shall be at the option of the Disclosing Party. To the extent any Evaluation\nMaterial (or Restricted Evaluation Material) has been incorporated into materials developed by the Receiving Party or its Representatives, the\nReceiving Party shall, and shall ensure that its Representatives, destroy such materials promptly, and in any event within ten business days after the\nDisclosing Party’s written request to destroy such materials. Notwithstanding the foregoing, (i) the Receiving Party and its Representatives that are\nattorneys, financial advisors, accounting firms, lenders or other consultants may retain, solely for compliance purposes, copies of the Evaluation\nMaterial if such party determines after consulting with counsel that such retention is necessary to comply with law or regulation and (ii) the\nReceiving Party and its Representatives shall not be required to use more than commercially reasonable efforts to expunge any Evaluation Material\nstored\nTPG Capital, L.P.\nMay 27, 2011\nPage 6\nelectronically on back up servers that are routinely overwritten. Notwithstanding the return or destruction of the Evaluation Material, the Receiving\nParty and its Representatives will continue to be bound by their obligations under this letter agreement during the term hereof.\n10. Each Party acknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of\nthis letter agreement by the other Party or such other Party’s affiliates or Representatives and that, in the event of any breach or threatened breach\nhereof, (a) the non-breaching Party shall be entitled to injunctive and other equitable relief, without proof of actual damages, (b) the breaching Party\nshall not plead in defense thereto that there would be an adequate remedy at law, and (c) the breaching Party agrees to waive, and to use its\nreasonable best efforts to cause its Representatives to waive, any applicable right or requirement that a bond be posted by the non-breaching Party.\nSuch remedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law\nor in equity.\n11. Each Party agrees that unless and until a definitive agreement between the Parties with respect to a Possible Transaction has been\nexecuted and delivered, neither Party nor any Representative of either Party will be under any legal obligation of any kind whatsoever by virtue of\nthis or any written or oral expression with respect to any Possible Transaction except, in the case of this letter agreement, for the matters specifically\nagreed to herein, and each Party hereby waives, in advance, any claims (including, without limitation, breach of contract) in connection with any\nPossible Transaction. For purposes of this letter agreement, the term “definitive agreement” does not include an executed letter of intent or any other\npreliminary written agreement (including drafts or other documents that are exchanged relating to a Possible Transaction), nor does it include any\noral acceptance of an offer or bid by either Party. The agreement set forth in this paragraph may be modified or waived only pursuant to a separate\nwriting (a) expressly so modifying or waiving such agreement and (b) executed by the Parties.\n12. If any term or provision of this letter agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the\nremainder of the terms and provisions of this letter agreement shall remain in full force and effect and shall in no way be affected, impaired or\ninvalidated.\n13. No waiver of any provision of this letter agreement, or of a breach hereof, shall be effective unless it is expressly stated in a writing\nsigned by the Party waiving the provision or the breach hereof. No waiver of a breach of this letter agreement (whether express or implied) shall\nconstitute a waiver of a subsequent breach hereof. Each Party understands and agrees that no failure or delay by the other Party in exercising any\nright, power or privilege under this letter agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any\nother or future exercise of any right, power or privilege hereunder.\n14. This letter agreement shall be governed by and construed in accordance with the laws of the State of New York.\nTPG Capital, L.P.\nMay 27, 2011\nPage7\n15. This letter agreement shall be binding upon the Parties and upon their respective successors and permitted assigns. Neither Party is\npermitted to assign any of its rights or delegate any of its duties under this letter agreement without the prior written consent of the other Party, and\nany attempt to do so without such consent shall be void.\n16. This letter agreement shall expire and cease to have any force or effect on the earlier of (a) the date that is the second anniversary of\nthe date of this letter agreement and (b) the date on which the Possible Transaction is consummated.\n17. Effective as of the date first set forth above, this letter agreement supersedes and replaces the prior Confidentiality Agreement\nbetween the Parties dated May 5, 2011.\n18. This letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall\nconstitute the same agreement. One or more counterparts of this letter agreement may be delivered by telecopier or PDF electronic transmission,\nwith the intention that they shall have the same effect as an original counterpart hereof.\n19. Immucor agrees that neither Immucor nor any of its Representatives will share with any other person (including, without limitation,\nany other potential participants in a transaction similar to the Possible Transaction) any analysis or other work product prepared by TPG or any of its\nRepresentatives in connection with the Possible Transaction.\nVery truly yours,\nImmucor, Inc.\nBy: /s/ Philip H. Moise\nPhilip H. Moise\nEVP & General Counsel\nTPG Capital, L.P.\nMay 27, 2011\nPage 8\nConfirmed and Agreed to:\nTPG Capital, L.P.\nBy: TPG Capital Advisors, LLC\nBy: /s/Ronald Cami\nName: Ronald Cami\nTitle: Vice President\nDate: May 27, 2011	EX-99.(D)(2) 9 dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nMay 27, 2011\nCONFIDENTIAL\nTPG Capital, L.P.\n301 Commerce Street\nSuite 3300\nFort Worth, TX 76102\nAttention: Ronald Cami, Vice President\nLadies and Gentlemen:\nTPG Capital, L.P., a Texas limited partnership ("TPG"), and Immucor, Inc., a Georgia corporation ("Immucor"), each have expressed\ninterest in discussing steps that could lead to a negotiated transaction. TPG and Immucor are hereafter sometimes referred to individually as a\n"Party." and collectively as the "Parties".\nThis letter agreement sets forth the Parties' agreement and understanding with respect to the disclosure by a Party (the "Disclosing\nParty.") of certain of its confidential information regarding itself and its businesses to the other Party (the "ReceivingI Party."). As a condition to the\nDisclosing Party furnishing the Receiving Party with such information, the Receiving Party agrees to treat any information, whether written or oral,\nconcerning the Disclosing Party (whether prepared by the Disclosing Party, its advisors or otherwise) that is furnished to the Receiving Party,\nwhether before or after the date hereof, by or on behalf of the Disclosing Party regardless of whether such information is identified as "confidential"\n(herein collectively referred to as the "Evaluation Material") in accordance with the provisions of this letter agreement and to take or abstain from\ntaking certain other actions herein set forth. The Receiving Party recognizes and acknowledges the competitive value of the Evaluation Material and\nthe damage that could result to the Disclosing Party if any of the Evaluation Material was used or disclosed except as authorized by this letter\nagreement.\nFor purposes of this letter agreement, the term "Evaluation Material" includes, without limitation, all notes, files, analyses, compilations,\nspreadsheets, data, reports, studies, interpretations or other documents relating to (a) technology for use with blood and blood component products,\n(b) blood grouping, typing and genotyping and related instrumentation, (c) nucleic acid testing of infectious diseases for blood screening and related\ninstrumentation, (d) existing products, products in development, and intellectual property (whether owned or licensed), (e) market sizes, market\nshare, growth potential, market development plans and strategy, (f) financial statements, financial projections and related financial analysis,\n(g) litigation, investigations and other judicial or administrative proceedings, (h) vendors, suppliers, customers, distributors and other commercial\nrelationships, and (i) any other aspects of the Disclosing Party's business, furnished to the Receiving Party or its directors, officers, employees,\nagents, advisors (including, without limitation, attorneys, accountants, consultants and financial advisors) and lenders and other sources of debt\nor\nequity financing (collectively, the "Representatives") or prepared by the Receiving Party or its Representatives to the extent such materials reflect or\nare based upon, in whole or in part, the Evaluation Material or the Receiving\nTPG Capital, L.P.\nMay 27, 2011\nPage 2\nParty's review, or interest in, the Disclosing Party. Notwithstanding the foregoing, Ron Labrum shall be deemed to be a Representative of TPG.\nNotwithstanding the preceding sentence, the term "Evaluation Material" does not include information that (i) is or becomes available to the\nReceiving Party on a nonconfidential basis from a source other than the Disclosing Party or its Representatives (provided that such source is\nnot,\nafter reasonable inquiry, known to the Receiving Party to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation to, the Disclosing Party or its Representatives that prohibits such disclosure), (ii) is or becomes generally available to the public other than\nas a result of a disclosure by the Receiving Party or its Representatives in violation of this letter agreement, or (iii) has been or is independently\ndeveloped by the Receiving Party or its Representatives without the use of the Evaluation Material or in violation of the terms of this letter\nagreement.\n1. The Receiving Party hereby agrees that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating\nand negotiating a possible negotiated transaction between the Parties and/or one or more affiliates and/or subsidiaries of the Parties (a "Possible\nTransaction"); provided, however, that, subject to the last sentence of this paragraph 1, the Evaluation Material may be disclosed (a) to\nRepresentatives who need to know such information for the sole purpose of evaluating and negotiating a Possible Transaction and (b) as the\nDisclosing Party may otherwise consent in writing. All such Representatives shall be informed by the Receiving Party of the confidential nature\nof\nthe Evaluation Material and of the terms of this letter agreement, and the Receiving Party shall cause all such Representatives to agree to keep the\nEvaluation Material strictly confidential and to abide by the terms hereof to the same extent as if they were parties to this letter agreement; provided,\nhowever, that the restrictions set forth in paragraphs 6 and 7 shall not apply to the Receiving Party's agents and advisors (including, without\nlimitation, attorneys, accountants, consultants and financial advisors). The Receiving Party agrees to be responsible for any breaches of, or failures to\ncomply with, any of the provisions of this letter agreement by it or any of its Representatives, provided that the Receiving Party shall not be\nresponsible for any of its Representatives that have entered into, or that subsequently enter into, any separate confidentiality agreement with\nthe\nDisclosing Party containing provisions mutually acceptable to the parties thereto. The Receiving Party further agrees that the Disclosing Party\nreserves the right to adopt additional specific procedures to protect the confidentiality of certain sensitive Evaluation Material, provided that the\nReceiving Party shall not be obligated to comply with such procedures until such time as the Disclosing Party has provided the Receiving Party with\nwritten notice of such procedures. Notwithstanding anything in this letter agreement to the contrary (including the definition of "Representatives"),\nthe Receiving Party hereby agrees that it will not, and will cause its Representatives not to, (i) contact or check conflicts with any potential lenders\nor\nother sources of debt or equity financing with respect to the Possible Transaction or (ii) directly or indirectly, share the Evaluation Material with or\nenter into any agreement, arrangement or understanding, or any discussions which could reasonably be expected to lead to such an agreement,\narrangement or understanding, with any potential lenders or other sources of debt or equity financing, in each case without the prior written consent\nof Immucor and only upon such person executing a confidentiality agreement in favor of Immucor with terms and conditions satisfactory to\nImmucor.\nTPG Capital, L.P.\nMay 27, 2011\nPage 3\n2. Without the prior written consent of the other Party, except as required by applicable law, regulation, legal process or stock exchange\nregulations (in which case the Party seeking to make such disclosure will use its reasonable best efforts to notify the other Party in advance of such\nproposed disclosure), neither Party will, and each Party will cause its Representatives not to, disclose to any person (a) the fact that investigations,\ndiscussions or negotiations are taking place or have taken place concerning a Possible Transaction, (b) any of the terms, conditions or other facts\nwith respect to any such Possible Transaction, including the status thereof or the fact that the other Party is considering or has considered such\na\nPossible Transaction, or (c) that this letter agreement exists, or that Evaluation Material has been requested or made available to it or its\nRepresentatives. The term "person" as used in this letter agreement shall be interpreted broadly to include any corporation, company, governmental\nagency or body, entity, partnership, group or individual.\n3. Each Party hereby acknowledges that it and its Representatives are aware that the United States securities laws generally prohibit\nany\nperson who has material, non-public information concerning a company from purchasing or selling securities of such company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase\nor sell such securities.\n4. Notwithstanding the foregoing, in the event the Receiving Party or any of its Representatives receives a request or is required by\napplicable law, regulation or legal process (including by deposition, interrogatory, request for documents, subpoena, civil investigative demand\nor\nsimilar process) to disclose all or any part of the Evaluation Material, the Receiving Party or its Representatives, as the case may be, agree to\n(a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such request or requirement (to the extent such\nnotification is legally permitted), (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such\nrequest or requirement, and (c) assist the Disclosing Party, at the Disclosing Party's expense, in seeking a protective order or other appropriate\nremedy (if the Disclosing Party chooses to seek such an order or remedy, in its sole discretion). In the event that such protective order or other\nremedy is not sought or obtained, the Receiving Party or its Representatives, as the case may be, may disclose only that portion of the Evaluation\nMaterial which the Receiving Party or its Representatives, as the case may be, are advised by outside counsel in writing is legally required to be\ndisclosed, and the Receiving Party or its Representatives shall exercise reasonable best efforts to obtain assurance that confidential treatment will be\naccorded such Evaluation Material.\n5. Unless otherwise agreed to by the Parties in writing, (a) all communications regarding the Possible Transaction will be submitted or\ndirected exclusively to the individuals set forth in Exhibit A to this letter agreement and (b) each Party agrees not to directly or indirectly contact or\ncommunicate with any other executive or employee of the other Party concerning a Possible Transaction or to seek any information in connection\ntherewith from any such person.\n6. Each Party agrees that, for a period of eighteen months after the date hereof, neither it nor any of its affiliates (including its related or\nmanaged portfolio companies\nTPG Capital, L.P.\nMay 27, 2011\nPage 4\nand managers) who in each case have received Evaluation Material of the other Party or who such Party or such Party's Representatives have made\naware of a Possible Transaction will, directly or indirectly, solicit for employment or employ, or cause to leave the employ of the other Party, any\nindividual serving as (a) an officer of the other Party, or (b) any employee of the other Party with whom a Party has had substantive contact, or who\nis specifically identified to a Party, during a Party's investigation of such other Party and its business, in each case without obtaining the prior written\nconsent of the other Party; provided, however, that the foregoing provision shall not preclude a Party or such of its affiliates from making good faith\ngeneralized solicitations for employees (not targeted at employees of the other Party or any of its controlled affiliates) through advertisements or\nsearch firms and hiring any persons solely resulting through such solicitations provided that neither such Party nor any of its Representatives\nencourages or advises such firm to approach any such employee.\n7. TPG agrees that, for a period that is the shorter of (a) eighteen (18) months after the date hereof or (b) twelve (12) months after\nthe\ndate on which discussions between the Parties regarding a Possible Transaction cease, neither it nor any of its directors, officers, employees or\naffiliates (including its related or managed portfolio companies and managers which have received Evaluation Material of Immucor or which have\nbeen made aware of a Possible Transaction by TPG or TPG's Representatives) will, unless specifically invited in writing by the board of directors\nof\nImmucor, acting by resolution approved by a majority of all members of the board, directly or indirectly, in any manner (TPG's obligations pursuant\nto this paragraph being, the "Standstill"): (a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly,\nalone or in concert with others, by purchase or otherwise, any direct or indirect beneficial interest in any voting or other securities or direct or\nindirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting or other securities of Immucor or any of\nits\nsubsidiaries (collectively, the "Company."), (b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any\n"solicitation" of "proxies" to vote (as such terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to\nSection 14 of the Securities Exchange Act of 1934, as amended (the "Exchange Ac whether subject to or exempt from the proxy rules, or seek\nto\nadvise or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company, (c) form, join\nor any way participate in a "group" within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting or other securities of the\nCompany, (d) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise,\n(i) any of the assets, tangible and intangible, of the Company or (ii) direct or indirect rights, warrants or options to acquire any assets of the\nCompany, (e) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting or other securities or securities\nconvertible or exchangeable into or exercisable for any voting or other securities or assets of the Company, (f) otherwise act, alone or in concert with\nothers, to seek to propose to the Company or any of its shareholders any merger, business combination, share exchange, consolidation, sale,\nrestructuring, reorganization, recapitalization or other transaction involving the Company or otherwise seek, alone or in concert with others,\nto\ncontrol, change or influence the management, board of directors or policies of the Company or nominate any person as a director who is not\nTPG Capital, L.P.\nMay 27, 2011\nPage 5\nnominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company, (g) make any request or\nproposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement\nwith\nrespect\nto\nany\nprovision of the Standstill, or (h) announce an intention to do, or enter into any arrangement or understanding with others to do, any of the actions\nrestricted or prohibited under clauses (a) through (g) of this Standstill, or take any action that would reasonably be expected to result in the Company\nhaving to make a public announcement regarding any of the matters referred to in clauses (a) through (g) of the Standstill. For the avoidance\nof\ndoubt, TPG's related or managed portfolio companies and managers which have not received Evaluation Material of Immucor and which have not\nbeen made aware of a Possible Transaction by TPG or TPG's Representatives shall be deemed not to be affiliates of TPG for purposes of the\nimmediately preceding sentence.\n8. This letter agreement does not constitute or create any obligation on the part of either Party or its Representatives to provide any\nparticular Evaluation Material to the other Party. Although the Disclosing Party has endeavored to include in the Evaluation Material information\nknown to it which it believes to be relevant for the purpose of the Receiving Party's investigation, the Receiving Party understands and\nacknowledges that none of the Disclosing Party or its affiliates or Representatives have made or make any representation or warranty, express or\nimplied, as to the accuracy or completeness of the Evaluation Material. The Receiving Party agrees that none of the Disclosing Party or its affiliates\nor Representatives shall have any liability to the Receiving Party or any of its Representatives resulting from the selection, use or content of the\nEvaluation Material by the Receiving Party or its Representatives.\n9. Upon the Disclosing Party's written request, the Receiving Party shall, and shall cause its Representatives to, promptly, and in any\nevent within ten business days after such request, deliver to the Disclosing Party or, at the Receiving Party's option, destroy all written Evaluation\nMaterial and any other written materials constituting Evaluation Material without retaining, in whole or in part, any copies, extracts or other\nreproductions (whatever the form or storage medium) of such materials, and shall certify the return or the destruction (as the case may be) of such\nmaterials in writing to the Disclosing Party; provided, however, that the decision of whether to deliver to the Disclosing Party or destroy any written\nEvaluation Material furnished by or on behalf of the Disclosing Party relating to any litigation or Department of Justice, FDA or other government\ninvestigation, action or inquiry ("Restricted Evaluation Material") shall be at the option of the Disclosing Party. To the extent any Evaluation\nMaterial (or Restricted Evaluation Material) has been incorporated into materials developed by the Receiving Party or its Representatives, the\nReceiving Party shall, and shall ensure that its Representatives, destroy such materials promptly, and in any event within ten business days after the\nDisclosing Party's written request to destroy such materials. Notwithstanding the foregoing, (i) the Receiving Party and its Representatives that are\nattorneys, financial advisors, accounting firms, lenders or other consultants may retain, solely for compliance purposes, copies of the Evaluation\nMaterial if such party determines after consulting with counsel that such retention is necessary to comply with law or regulation and (ii) the\nReceiving Party and its Representatives shall not be required to use more than commercially reasonable efforts to expunge any Evaluation Material\nstored\nTPG Capital, L.P.\nMay 27, 2011\nPage 6\nelectronically on back up servers that are routinely overwritten. Notwithstanding the return or destruction of the Evaluation Material, the Receiving\nParty and its Representatives will continue to be bound by their obligations under this letter agreement during the term hereof.\n10. Each Party acknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of\nthis letter agreement by the other Party or such other Party's affiliates or Representatives and that, in the event of any breach or threatened breach\nhereof, (a) the non-breaching Party shall be entitled to injunctive and other equitable relief, without proof of actual damages, (b) the breaching Party\nshall not plead in defense thereto that there would be an adequate remedy at law, and (c) the breaching Party agrees to waive, and to use\nits\nreasonable\nbest\nefforts\nto\ncause\nits\nRepresentatives\nto\nwaive,\nany\napplicable\nright\nor\nrequirement\nthat\na\nbond\nbe\nposted\nby\nthe\nnon-breaching\nParty.\nSuch remedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law\nor in equity.\n11. Each Party agrees that unless and until a definitive agreement between the Parties with respect to a Possible Transaction has been\nexecuted and delivered, neither Party nor any Representative of either Party will be under any legal obligation of any kind whatsoever by virtue of\nthis or any written or oral expression with respect to any Possible Transaction except, in the case of this letter agreement, for the matters specifically\nagreed to herein, and each Party hereby waives, in advance, any claims (including, without limitation, breach of contract) in connection with any\nPossible Transaction. For purposes of this letter agreement, the term "definitive agreement" does not include an executed letter of intent or any other\npreliminary written agreement (including drafts or other documents that are exchanged relating to a Possible Transaction), nor does it include any\noral acceptance of an offer or bid by either Party. The agreement set forth in this paragraph may be modified or waived only pursuant to a separate\nwriting (a) expressly so modifying or waiving such agreement and (b) executed by the Parties.\n12. If any term or provision of this letter agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the\nremainder of the terms and provisions of this letter agreement shall remain in full force and effect and shall in no way be affected, impaired or\ninvalidated.\n13. No waiver of any provision of this letter agreement, or of a breach hereof, shall be effective unless it is expressly stated in a writing\nsigned by the Party waiving the provision or the breach hereof. No waiver of a breach of this letter agreement (whether express or implied) shall\nconstitute a waiver of a subsequent breach hereof. Each Party understands and agrees that no failure or delay by the other Party in exercising any\nright, power or privilege under this letter agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any\nother or future exercise of any right, power or privilege hereunder.\n14. This letter agreement shall be governed by and construed in accordance with the laws of the State of New York.\nTPG Capital, L.P.\nMay 27, 2011\nPage7\n15. This letter agreement shall be binding upon the Parties and upon their respective successors and permitted assigns. Neither Party is\npermitted to assign any of its rights or delegate any of its duties under this letter agreement without the prior written consent of the other Party, and\nany attempt to do SO without such consent shall be void.\n16. This letter agreement shall expire and cease to have any force or effect on the earlier of (a) the date that is the second anniversary of\nthe date of this letter agreement and (b) the date on which the Possible Transaction is consummated.\n17. Effective as of the date first set forth above, this letter agreement supersedes and replaces the prior Confidentiality Agreement\nbetween the Parties dated May 5, 2011.\n18. This letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall\nconstitute the same agreement. One or more counterparts of this letter agreement may be delivered by telecopier or PDF electronic transmission,\nwith the intention that they shall have the same effect as an original counterpart hereof.\n19. Immucor agrees that neither Immucor nor any of its Representatives will share with any other person (including, without limitation,\nany\nother potential participants in a transaction similar to the Possible Transaction) any analysis or other work product prepared by TPG or any of its\nRepresentatives in connection with the Possible Transaction.\nVery truly yours,\nImmucor, Inc.\nBy: /s/ Philip H. Moise\nPhilip H. Moise\nEVP & General Counsel\nTPG Capital, L.P.\nMay 27, 2011\nPage 8\nConfirmed and Agreed to:\nTPG Capital, L.P.\nBy: TPG Capital Advisors, LLC\nBy:\n/s/ Ronald Cami\nName: Ronald Cami\nTitle: Vice President\nDate: May 27, 2011	EX-99.(D)(2) 9 dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nMay 27, 2011\nCONFIDENTIAL\nTPG Capital, L.P.\n301 Commerce Street\nSuite 3300\nFort Worth, TX 76102\nAttention: Ronald Cami, Vice President\nLadies and Gentlemen:\nTPG Capital, L.P., a Texas limited partnership (“TPG”), and Immucor, Inc., a Georgia corporation (“Immucor”), each have expressed\ninterest in discussing steps that could lead to a negotiated transaction. TPG and Immucor are hereafter sometimes referred to individually as a\n“Party” and collectively as the “Parties”.\nThis letter agreement sets forth the Parties’ agreement and understanding with respect to the disclosure by a Party (the “Disclosing\nParty”) of certain of its confidential information regarding itself and its businesses to the other Party (the “Receiving Party”). As a condition to the\nDisclosing Party furnishing the Receiving Party with such information, the Receiving Party agrees to treat any information, whether written or oral,\nconcerning the Disclosing Party (whether prepared by the Disclosing Party, its advisors or otherwise) that is furnished to the Receiving Party,\nwhether before or after the date hereof, by or on behalf of the Disclosing Party regardless of whether such information is identified as “confidential”\n(herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement and to take or abstain from\ntaking certain other actions herein set forth. The Receiving Party recognizes and acknowledges the competitive value of the Evaluation Material and\nthe damage that could result to the Disclosing Party if any of the Evaluation Material was used or disclosed except as authorized by this letter\nagreement.\nFor purposes of this letter agreement, the term “Evaluation Material” includes, without limitation, all notes, files, analyses, compilations,\nspreadsheets, data, reports, studies, interpretations or other documents relating to (a) technology for use with blood and blood component products,\n(b) blood grouping, typing and genotyping and related instrumentation, (c) nucleic acid testing of infectious diseases for blood screening and related\ninstrumentation, (d) existing products, products in development, and intellectual property (whether owned or licensed), (e) market sizes, market\nshare, growth potential, market development plans and strategy, (f) financial statements, financial projections and related financial analysis,\n(g) litigation, investigations and other judicial or administrative proceedings, (h) vendors, suppliers, customers, distributors and other commercial\nrelationships, and (i) any other aspects of the Disclosing Party’s business, furnished to the Receiving Party or its directors, officers, employees,\nagents, advisors (including, without limitation, attorneys, accountants, consultants and financial advisors) and lenders and other sources of debt or\nequity financing (collectively, the “Representatives”) or prepared by the Receiving Party or its Representatives to the extent such materials reflect or\nare based upon, in whole or in part, the Evaluation Material or the Receiving\nTPG Capital, L.P.\nMay 27, 2011\nPage 2\nParty’s review, or interest in, the Disclosing Party. Notwithstanding the foregoing, Ron Labrum shall be deemed to be a Representative of TPG.\nNotwithstanding the preceding sentence, the term “Evaluation Material” does not include information that (i) is or becomes available to the\nReceiving Party on a nonconfidential basis from a source other than the Disclosing Party or its Representatives (provided that such source is not,\nafter reasonable inquiry, known to the Receiving Party to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation to, the Disclosing Party or its Representatives that prohibits such disclosure), (ii) is or becomes generally available to the public other than\nas a result of a disclosure by the Receiving Party or its Representatives in violation of this letter agreement, or (iii) has been or is independently\ndeveloped by the Receiving Party or its Representatives without the use of the Evaluation Material or in violation of the terms of this letter\nagreement.\n1. The Receiving Party hereby agrees that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating\nand negotiating a possible negotiated transaction between the Parties and/or one or more affiliates and/or subsidiaries of the Parties (a “Possible\nTransaction”); provided, however, that, subject to the last sentence of this paragraph 1, the Evaluation Material may be disclosed (a) to\nRepresentatives who need to know such information for the sole purpose of evaluating and negotiating a Possible Transaction and (b) as the\nDisclosing Party may otherwise consent in writing. All such Representatives shall be informed by the Receiving Party of the confidential nature of\nthe Evaluation Material and of the terms of this letter agreement, and the Receiving Party shall cause all such Representatives to agree to keep the\nEvaluation Material strictly confidential and to abide by the terms hereof to the same extent as if they were parties to this letter agreement; provided,\nhowever, that the restrictions set forth in paragraphs 6 and 7 shall not apply to the Receiving Party’s agents and advisors (including, without\nlimitation, attorneys, accountants, consultants and financial advisors). The Receiving Party agrees to be responsible for any breaches of, or failures to\ncomply with, any of the provisions of this letter agreement by it or any of its Representatives, provided that the Receiving Party shall not be\nresponsible for any of its Representatives that have entered into, or that subsequently enter into, any separate confidentiality agreement with the\nDisclosing Party containing provisions mutually acceptable to the parties thereto. The Receiving Party further agrees that the Disclosing Party\nreserves the right to adopt additional specific procedures to protect the confidentiality of certain sensitive Evaluation Material, provided that the\nReceiving Party shall not be obligated to comply with such procedures until such time as the Disclosing Party has provided the Receiving Party with\nwritten notice of such procedures. Notwithstanding anything in this letter agreement to the contrary (including the definition of “Representatives”),\nthe Receiving Party hereby agrees that it will not, and will cause its Representatives not to, (i) contact or check conflicts with any potential lenders or\nother sources of debt or equity financing with respect to the Possible Transaction or (ii) directly or indirectly, share the Evaluation Material with or\nenter into any agreement, arrangement or understanding, or any discussions which could reasonably be expected to lead to such an agreement,\narrangement or understanding, with any potential lenders or other sources of debt or equity financing, in each case without the prior written consent\nof Immucor and only upon such person executing a confidentiality agreement in favor of Immucor with terms and conditions satisfactory to\nImmucor.\nTPG Capital, L.P.\nMay 27, 2011\nPage 3\n2. Without the prior written consent of the other Party, except as required by applicable law, regulation, legal process or stock exchange\nregulations (in which case the Party seeking to make such disclosure will use its reasonable best efforts to notify the other Party in advance of such\nproposed disclosure), neither Party will, and each Party will cause its Representatives not to, disclose to any person (a) the fact that investigations,\ndiscussions or negotiations are taking place or have taken place concerning a Possible Transaction, (b) any of the terms, conditions or other facts\nwith respect to any such Possible Transaction, including the status thereof or the fact that the other Party is considering or has considered such a\nPossible Transaction, or (c) that this letter agreement exists, or that Evaluation Material has been requested or made available to it or its\nRepresentatives. The term “person” as used in this letter agreement shall be interpreted broadly to include any corporation, company, governmental\nagency or body, entity, partnership, group or individual.\n3. Each Party hereby acknowledges that it and its Representatives are aware that the United States securities laws generally prohibit any\nperson who has material, non-public information concerning a company from purchasing or selling securities of such company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase\nor sell such securities.\n4. Notwithstanding the foregoing, in the event the Receiving Party or any of its Representatives receives a request or is required by\napplicable law, regulation or legal process (including by deposition, interrogatory, request for documents, subpoena, civil investigative demand or\nsimilar process) to disclose all or any part of the Evaluation Material, the Receiving Party or its Representatives, as the case may be, agree to\n(a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such request or requirement (to the extent such\nnotification is legally permitted), (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such\nrequest or requirement, and (c) assist the Disclosing Party, at the Disclosing Party’s expense, in seeking a protective order or other appropriate\nremedy (if the Disclosing Party chooses to seek such an order or remedy, in its sole discretion). In the event that such protective order or other\nremedy is not sought or obtained, the Receiving Party or its Representatives, as the case may be, may disclose only that portion of the Evaluation\nMaterial which the Receiving Party or its Representatives, as the case may be, are advised by outside counsel in writing is legally required to be\ndisclosed, and the Receiving Party or its Representatives shall exercise reasonable best efforts to obtain assurance that confidential treatment will be\naccorded such Evaluation Material.\n5. Unless otherwise agreed to by the Parties in writing, (a) all communications regarding the Possible Transaction will be submitted or\ndirected exclusively to the individuals set forth in Exhibit A to this letter agreement and (b) each Party agrees not to directly or indirectly contact or\ncommunicate with any other executive or employee of the other Party concerning a Possible Transaction or to seek any information in connection\ntherewith from any such person.\n6. Each Party agrees that, for a period of eighteen months after the date hereof, neither it nor any of its affiliates (including its related or\nmanaged portfolio companies\nTPG Capital, L.P.\nMay 27, 2011\nPage 4\nand managers) who in each case have received Evaluation Material of the other Party or who such Party or such Party’s Representatives have made\naware of a Possible Transaction will, directly or indirectly, solicit for employment or employ, or cause to leave the employ of the other Party, any\nindividual serving as (a) an officer of the other Party, or (b) any employee of the other Party with whom a Party has had substantive contact, or who\nis specifically identified to a Party, during a Party’s investigation of such other Party and its business, in each case without obtaining the prior written\nconsent of the other Party; provided, however, that the foregoing provision shall not preclude a Party or such of its affiliates from making good faith\ngeneralized solicitations for employees (not targeted at employees of the other Party or any of its controlled affiliates) through advertisements or\nsearch firms and hiring any persons solely resulting through such solicitations provided that neither such Party nor any of its Representatives\nencourages or advises such firm to approach any such employee.\n7. TPG agrees that, for a period that is the shorter of (a) eighteen (18) months after the date hereof or (b) twelve (12) months after the\ndate on which discussions between the Parties regarding a Possible Transaction cease, neither it nor any of its directors, officers, employees or\naffiliates (including its related or managed portfolio companies and managers which have received Evaluation Material of Immucor or which have\nbeen made aware of a Possible Transaction by TPG or TPG’s Representatives) will, unless specifically invited in writing by the board of directors of\nImmucor, acting by resolution approved by a majority of all members of the board, directly or indirectly, in any manner (TPG’s obligations pursuant\nto this paragraph being, the “Standstill”): (a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly,\nalone or in concert with others, by purchase or otherwise, any direct or indirect beneficial interest in any voting or other securities or direct or\nindirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting or other securities of Immucor or any of\nits subsidiaries (collectively, the “Company”), (b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any\n“solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to\nSection 14 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), whether subject to or exempt from the proxy rules, or seek to\nadvise or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company, (c) form, join\nor any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting or other securities of the\nCompany, (d) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise,\n(i) any of the assets, tangible and intangible, of the Company or (ii) direct or indirect rights, warrants or options to acquire any assets of the\nCompany, (e) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting or other securities or securities\nconvertible or exchangeable into or exercisable for any voting or other securities or assets of the Company, (f) otherwise act, alone or in concert with\nothers, to seek to propose to the Company or any of its shareholders any merger, business combination, share exchange, consolidation, sale,\nrestructuring, reorganization, recapitalization or other transaction involving the Company or otherwise seek, alone or in concert with others, to\ncontrol, change or influence the management, board of directors or policies of the Company or nominate any person as a director who is not\nTPG Capital, L.P.\nMay 27, 2011\nPage 5\nnominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company, (g) make any request or\nproposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any\nprovision of the Standstill, or (h) announce an intention to do, or enter into any arrangement or understanding with others to do, any of the actions\nrestricted or prohibited under clauses (a) through (g) of this Standstill, or take any action that would reasonably be expected to result in the Company\nhaving to make a public announcement regarding any of the matters referred to in clauses (a) through (g) of the Standstill. For the avoidance of\ndoubt, TPG’s related or managed portfolio companies and managers which have not received Evaluation Material of Immucor and which have not\nbeen made aware of a Possible Transaction by TPG or TPG’s Representatives shall be deemed not to be affiliates of TPG for purposes of the\nimmediately preceding sentence.\n8. This letter agreement does not constitute or create any obligation on the part of either Party or its Representatives to provide any\nparticular Evaluation Material to the other Party. Although the Disclosing Party has endeavored to include in the Evaluation Material information\nknown to it which it believes to be relevant for the purpose of the Receiving Party’s investigation, the Receiving Party understands and\nacknowledges that none of the Disclosing Party or its affiliates or Representatives have made or make any representation or warranty, express or\nimplied, as to the accuracy or completeness of the Evaluation Material. The Receiving Party agrees that none of the Disclosing Party or its affiliates\nor Representatives shall have any liability to the Receiving Party or any of its Representatives resulting from the selection, use or content of the\nEvaluation Material by the Receiving Party or its Representatives.\n9. Upon the Disclosing Party’s written request, the Receiving Party shall, and shall cause its Representatives to, promptly, and in any\nevent within ten business days after such request, deliver to the Disclosing Party or, at the Receiving Party’s option, destroy all written Evaluation\nMaterial and any other written materials constituting Evaluation Material without retaining, in whole or in part, any copies, extracts or other\nreproductions (whatever the form or storage medium) of such materials, and shall certify the return or the destruction (as the case may be) of such\nmaterials in writing to the Disclosing Party; provided, however, that the decision of whether to deliver to the Disclosing Party or destroy any written\nEvaluation Material furnished by or on behalf of the Disclosing Party relating to any litigation or Department of Justice, FDA or other government\ninvestigation, action or inquiry (“Restricted Evaluation Material”) shall be at the option of the Disclosing Party. To the extent any Evaluation\nMaterial (or Restricted Evaluation Material) has been incorporated into materials developed by the Receiving Party or its Representatives, the\nReceiving Party shall, and shall ensure that its Representatives, destroy such materials promptly, and in any event within ten business days after the\nDisclosing Party’s written request to destroy such materials. Notwithstanding the foregoing, (i) the Receiving Party and its Representatives that are\nattorneys, financial advisors, accounting firms, lenders or other consultants may retain, solely for compliance purposes, copies of the Evaluation\nMaterial if such party determines after consulting with counsel that such retention is necessary to comply with law or regulation and (ii) the\nReceiving Party and its Representatives shall not be required to use more than commercially reasonable efforts to expunge any Evaluation Material\nstored\nTPG Capital, L.P.\nMay 27, 2011\nPage 6\nelectronically on back up servers that are routinely overwritten. Notwithstanding the return or destruction of the Evaluation Material, the Receiving\nParty and its Representatives will continue to be bound by their obligations under this letter agreement during the term hereof.\n10. Each Party acknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of\nthis letter agreement by the other Party or such other Party’s affiliates or Representatives and that, in the event of any breach or threatened breach\nhereof, (a) the non-breaching Party shall be entitled to injunctive and other equitable relief, without proof of actual damages, (b) the breaching Party\nshall not plead in defense thereto that there would be an adequate remedy at law, and (c) the breaching Party agrees to waive, and to use its\nreasonable best efforts to cause its Representatives to waive, any applicable right or requirement that a bond be posted by the non-breaching Party.\nSuch remedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law\nor in equity.\n11. Each Party agrees that unless and until a definitive agreement between the Parties with respect to a Possible Transaction has been\nexecuted and delivered, neither Party nor any Representative of either Party will be under any legal obligation of any kind whatsoever by virtue of\nthis or any written or oral expression with respect to any Possible Transaction except, in the case of this letter agreement, for the matters specifically\nagreed to herein, and each Party hereby waives, in advance, any claims (including, without limitation, breach of contract) in connection with any\nPossible Transaction. For purposes of this letter agreement, the term “definitive agreement” does not include an executed letter of intent or any other\npreliminary written agreement (including drafts or other documents that are exchanged relating to a Possible Transaction), nor does it include any\noral acceptance of an offer or bid by either Party. The agreement set forth in this paragraph may be modified or waived only pursuant to a separate\nwriting (a) expressly so modifying or waiving such agreement and (b) executed by the Parties.\n12. If any term or provision of this letter agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the\nremainder of the terms and provisions of this letter agreement shall remain in full force and effect and shall in no way be affected, impaired or\ninvalidated.\n13. No waiver of any provision of this letter agreement, or of a breach hereof, shall be effective unless it is expressly stated in a writing\nsigned by the Party waiving the provision or the breach hereof. No waiver of a breach of this letter agreement (whether express or implied) shall\nconstitute a waiver of a subsequent breach hereof. Each Party understands and agrees that no failure or delay by the other Party in exercising any\nright, power or privilege under this letter agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any\nother or future exercise of any right, power or privilege hereunder.\n14. This letter agreement shall be governed by and construed in accordance with the laws of the State of New York.\nTPG Capital, L.P.\nMay 27, 2011\nPage7\n15. This letter agreement shall be binding upon the Parties and upon their respective successors and permitted assigns. Neither Party is\npermitted to assign any of its rights or delegate any of its duties under this letter agreement without the prior written consent of the other Party, and\nany attempt to do so without such consent shall be void.\n16. This letter agreement shall expire and cease to have any force or effect on the earlier of (a) the date that is the second anniversary of\nthe date of this letter agreement and (b) the date on which the Possible Transaction is consummated.\n17. Effective as of the date first set forth above, this letter agreement supersedes and replaces the prior Confidentiality Agreement\nbetween the Parties dated May 5, 2011.\n18. This letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall\nconstitute the same agreement. One or more counterparts of this letter agreement may be delivered by telecopier or PDF electronic transmission,\nwith the intention that they shall have the same effect as an original counterpart hereof.\n19. Immucor agrees that neither Immucor nor any of its Representatives will share with any other person (including, without limitation,\nany other potential participants in a transaction similar to the Possible Transaction) any analysis or other work product prepared by TPG or any of its\nRepresentatives in connection with the Possible Transaction.\nVery truly yours,\nImmucor, Inc.\nBy: /s/ Philip H. Moise\nPhilip H. Moise\nEVP & General Counsel\nTPG Capital, L.P.\nMay 27, 2011\nPage 8\nConfirmed and Agreed to:\nTPG Capital, L.P.\nBy: TPG Capital Advisors, LLC\nBy: /s/ Ronald Cami\nName: Ronald Cami\nTitle: Vice President\nDate: May 27, 2011
ad3e097afaa361cfc8e6882ab6c12d24.pdf	jurisdiction party	EXHIBIT B\nTO\nBROKERAGE AGREEMENT\nForm of Confidentiality Agreement between Company and Broker\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is made as of the\nday of\n, 2001, by and between, ChoiceTel Communications, Inc., a Minnesota corporation (the "Company") , and Wimbish Riteway Realtors, a Florida\ncorporation (the "Recipient") .\nIn connection with the engagement of Recipient as brokerage agent pursuant to that certain Brokerage Agreement of even date herewith (the "Brokerage Agreement") between the Recipient and the Company,\nthe Company is prepared to make available to the Recipient certain information with respect to the Company which is non-public, confidential or proprietary in nature. As a condition to furnishing such information to\nthe Recipient, the Company requires and the Recipient agrees that any information concerning the Company (whether prepared by the Company, its advisors or otherwise) which is furnished to the Recipient by or on\nbehalf of the Company (whether before or after the date of this Agreement, whether furnished orally or in writing or gathered by inspection, and regardless of whether or not specifically marked or identified as\n"c onfidential") (the "Confidential Material") shall be safeguarded and treated as confidential in accordance with the provisions of this Agreement. The term "Confidential Material" does not include information which\n(a) is or becomes generally available to the public other than by disclosure by the Recipient, (b) was or becomes available to the Recipient on a non-confidential basis from a third party who, to the best of the\nRecipient's knowledge, was not under an obligation of confidentiality to the Company, or (c) was or is independently developed by the Recipient without reference to the Confidential Material.\n1. Use of Confidential Material. The Recipient agrees that it shall use the Confidential Material solely for the purpose of performing Recipient's obligations under the Brokerage Agreement and not for any other\npurpose. The Recipient further agrees that it shall not take, or fail to take, any action that would allow, assist or permit any other person or entity to use the Brokerage Material in a manner that, if so used by the\nRecipient, would be in violation of any of the terms of this Agreement.\n2. Non-Disclosure of Confidential Material. The Recipient agrees that the Confidential Material shall be kept confidential by it and its Representatives, and that the Recipient shall not disclose any of the\nConfidential Material in any manner whatsoever except (a) to those directors, officers, employees, consultants, auditors or counsel of the Recipient (the "Representatives") who need to know such information for\npurposes directly relating to the Brokerage Agreement, or (b) with the prior written consent of the Company. The Recipient agrees to expressly advise such Representatives that the information is to be kept\nconfidential, and such Representatives shall agree to keep such information confidential and abide by the terms of this Agreement.\n3. Legal Proceedings. In the event that Recipient is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or other process or\nrequirement of law) to disclose (i) all or any part of the Confidential Material or (ii) any information relating to its opinion, judgment or recommendations concerning the Company, its affiliates or subsidiaries as\ndeveloped from Confidential Material, Recipient will provide the Company with prompt notice of any such request or requirement so that the Company may seek an appropriate protective order, other appropriate\nremedy or waive Recipient's compliance with the provisions of this Agreement. If, failing the entry of a protective order or other appropriate remedy or the receipt of a waiver hereunder, disclosure of all or any part of\nthe Confidential Material is required, Recipient may disclose that portion of the Confidential Material which, upon advise of counsel, Recipient is compelled to disclose. In any event, Recipient will not oppose action by\nthe Company to obtain an appropriate\nprotective order or other reliable assurance that confidential treatment will be accorded to the Confidential Material.\n4. Return of Confidential Material. Upon termination of the Brokerage Agreement, the Recipient and its Representatives shall promptly deliver to the Company all written Confidential Material (and copies\nthereof) and all information derived therefrom. At any time upon the written request of the Company for any reason, the Recipient shall promptly deliver to the Company (or certify the destruction of) all Confidential\nMaterial (and all copies thereof) furnished to the Recipient or its Representatives by or on behalf of the Company pursuant to this Agreement.\n5. Disclaimer. Neither the Company nor its representatives makes any representation or warranty as to the accuracy or completeness of the Confidential Material. Neither the Company nor its representatives\nshall have any liability to the Recipient resulting from the use of the Confidential Material.\n6. Remedies. The parties agree that money damages would not be a sufficient remedy for any breach of this Agreement and that the Company shall be entitled to equitable relief, including injunction and specific\nperformance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach by the Recipient of this Agreement but shall be in addition to all other remedies available\nat law or equity.\n7. General Provisions.\na. No failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise\nthereof or the exercise of any right, power or privilege.\nb. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota.\nc. This Agreement shall be binding and inure to the benefit of the parties hereto and their respective successors and assigns.\nd. This Agreement shall constitute the entire agreement between the parties hereto with regard to the subject matter hereof. No modification, amendment or waiver shall be binding without the written consent\nof the parties. Each party hereto represents and warrants that it has the full power and authority to enter into this Agreement and to perform its obligations hereunder.\nIN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first above written.\nRECIPIENT:\nWIMBISH RITEWAY REALTORS\nBy\nIts\nCOMPANY:\nCHOICETEL COMMUNICATIONS, INC .\nBy\nIts	EXHIBIT B\nTo\nBROKERAGE AGREEMENT\nForm of Confidentiality Agreement between Company and Broker\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is made as of the day of , 2001, by and between, ChoiceTel Communications, Inc., a Minnesota corporation (the "C ompany"), and Wimbish Riteway Realtors, a Florida\ncorporation (the "Recipient").\nIn connection with the engagement of Recipient as brokerage agent pursuant to that certain Brokerage Agreement of even date herewith (the "Brokerage Agreement") between the Recipient and the Company,\nthe Company is prepared to make available to the Recipient certain information with respect to the Company which is non-public, confidential or proprietary in nature. As a condition to furnishing such information to\nthe Recipient, the Company requires and the Recipient agrees that any information concerning the Company (whether prepared by the Company, its advisors or otherwise) which is furnished to the Recipient by or on\nbehalf of the Company (whether before or after the date of this Agreement, whether furnished orally or in writing or gathered by inspection, and regardless of whether or not specifically marked or identified as\n"confidential") (the "Confidential Material") shall be safeguarded and treated as confidential in accordance with the provisions of this Agreement. The term "Confidential Material" does not include information which\n(a) is or becomes generally available to the public other than by disclosure by the Recipient, (b) was or becomes available to the Recipienton a non-confidential basis from a third party who, to the best of the\nRecipient‘s knowledge, was not under an obligation of confidentiality to the Company, or (c) was or is independently developed by the Recipient without reference to the Confidential Material.\n1. Use of Confidential Material. The Recipient agrees that it shall use the Confidential Material solely forthe purpose of performing Recipient's obligations under the Brokerage Agreement and not for any other\npurpose. The Recipientfurther agrees that itshalI not take, orfail to take, any action that would allow, assist or permit any other person or entity to use the Brokerage Material in a manner that, if so used by the\nRecipient, would be in violation of any of the terms of this Agreement.\n2. Non-Disclosure ofConfidential Material. The Recipient agrees that the Confidential Material shall be kept confidential by it and its Representatives, and that the Recipient shall notdisclose any of the\nConfidential Material in any manner whatsoever except (a) to those directors, officers, employees, consultants, auditors or counsel of the Recipient (the "Representatives") who need to know such information for\npurposes directly relating to the Brokerage Agreement, or (b) with the prior written consent of the Company. The Recipient agrees to expressly advise such Representatives that the information is to be kept\nconfidential, and such Representatives shall agree to keep such information confidential and abide by the terms of this Agreement.\n3. Legal Proceedings. In the event that Recipient is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or other process or\nrequirement of law) to disclose (i) all or any part of the Confidential Material or (ii) any information relating to its opinion, judgment or recommendations concerning the Company, its affiliates or subsidiaries as\ndeveloped from Confidential Material, Recipient will provide the Company with prompt notice of any such request or requirement so that the Company may seek an appropriate protective order, other appropriate\nremedy or waive Recipient's compliance with the provisions of this Agreement. If, failing the entry of a protective order or other appropriate remedy or the receipt of a waiver hereunder, disclosure of all or any part of\nthe Confidential Material is required, Recipient may disclose that portion of the Confidential Material which, upon advise of counsel, Recipient is compelled to disclose. In any event, Recipient will not oppose action by\nthe Company to obtain an appropriate\nprotective order or other reliable assurance that confidential treatment will be accorded to the Confidential Material.\n4. Return of Confidential Material. Upon termination of the Brokerage Agreement, the Recipientand its Representatives shall promptly deliver to the Company all written Confidential Material (and copies\nthereof) and all information derived therefrom. At any time upon the written request of the Company for any reason, the Recipient shall promptly deliver to the Company (or certify the destruction of) all Confidential\nMaterial (and all copies thereof) furnished to the Recipientor its Representatives by or on behalf of the Company pursuant to this Agreement.\n5. Disclaimer. Neither the Company nor its representatives makes any representation or warranty as to the accuracy or completeness of the Confidential Material. Neither the Company nor its representatives\nshall have any liability to the Recipient resulting from the use of the Confidential Material.\n6. Remedies. The parties agree that money damages would not be a sufficient remedy for any breach of this Agreement and that the Company shall be entitled to equitable relief, including injunction and specific\nperformance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach by the Recipient of this Agreement but shall be in addition to all other remedies available\natlaw orequity.\n7. General Provisions.\na. No failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other orfurther exercise\nthereof or the exercise of any right, power or privilege.\nb. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota.\nc. This Agreement shall be binding and inure to the benefit of the parties hereto and their respective successors and assigns.\nd. This Agreement shall constitute the entire agreement between the parties hereto with regard to the subject matter hereof. No modification, amendment or waiver shall be binding without the written consent\nof the parties. Each party hereto represents and warrants that it has the full power and authority to enter into this Agreement and to perform its obligations hereunder.\nIN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date firstabove written.\nRECIPIENT: WIMBISH RITEWAY REALTORS\nBY\nCOMPANY: CHOICETELCOMMUNICATIONS,INC.\nBY	EXHIBIT B\nTO\nBROKERAGE AGREEMENT\nForm of Confidentiality Agreement between Company and Broker\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is made as of the\nday of\n2001, by and between, ChoiceTe Communications, Inc. a Minnesota corporation (the "Company"), and Wimbish Riteway Realtors, a Florida\ncorporation (the "Recipient").\nIn connection with the engagement of Recipient as brokerage agent pursuant to that certain Brokerage Agreement of even date herewith (the "Brokerage Agreement") between the Recipient and the\nCompany,\nthe Company is prepared to make available to the Recipient certain information with respect to the Company which is non-public, confidential or proprietary in nature. As a condition to furnishing such information to\nthe ecipient, the Company requires and the Recipient agrees that any information concerning the Company (whether prepared by the Company, its advisors or otherwise) which is furnished to the Recipient by or on\nbehalf of the Company (whether before or after the date of this Agreement, whether furnished orally or in writing or gathered by inspection, and regardless of whether or not specifically marked or identified as\n"confidential") (the "Confidential Material") shal be safeguarded and treated as confidential in accordance with the provisions of this Agreement. The term "Confidential Material" does not include information which\n(a)\nis or becomes generally available to the public other than by disclosure by the Recipient, (b) was or becomes available to the Recipient on a non-confidential basis from a third party who, to the best of the\nRecipient's knowledge, was not under an obligation of confidentiality to the Company, or (c) was or is independently developed by the Recipient without reference to the Confidentia Material.\n1.\nUse of Confidential Material. The Recipient agrees that it shal use the Confidential Material solely for the purpose of performing Recipient's obligations under the Brokerage Agreement and not for any other\npurpose. The Recipient further agrees that it shall not take, or fai to take, any action that would allow, assist or permit any other person or entity to use the Brokerage Material in a manner that, if so used by the\nRecipient, would be in violation of any of the terms of this Agreement.\n2.\nNon-Disclosure\nof\nConfidential Material. The ecipient agrees that the Confidential Material shal be kept confidential by it and its Representatives, and that the Recipient shall not disclose any of the\nConfidential Material in any manner whatsoever except (a) to those directors, officers, employees, consultants, auditors or counsel of the Recipient (the "Representatives") who need to know such information for\npurposes directly relating to the Brokerage Agreement, or (b) with the prior written consent of the Company. The Recipient agrees to expressly advise such Representatives that the information is to be kept\nconfidential, and such R Representatives shal agree to keep such information confidential and abide by the terms of this Agreement\n3. Legal Proceedings. In the event that R ecipient is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or other process\nor\nrequirement of law) to disclose (i) all or any part of the Confidential Material or (ii) any information relating to its opinion, judgment or recommendations concerning the Company, its affiliates or subsidiaries as\ndeveloped from Confidential Material, Recipient will provide the Company with prompt notice of any such request or requirement so that the Company may seek an appropriate protective order, other appropriate\nremedy or waive Recipient's compliance with the provisions of this Agreement. if, failing the entry of a protective order or other appropriate remedy or the receipt of a waiver hereunder, disclosure of all or any part of\nthe Confidential Materia is required Recipient may disclose that portion of the Confidential Material which, upon advise of counsel, Recipient is compelled to disclose. In any event, Recipient will not\noppose\naction\nby\nthe Company to obtain an appropriate\nprotective order or other reliable assurance that confidential treatment wil be accorded to the Confidential Material.\n4.\nReturn of Confidential Material. Upon termination of the Brokerage Agreement, the Recipient and its Representatives shall promptly deliver to the Company all written Confidential Material (and copies\nthereof) and all information derived therefrom. At any time upon the written request of the Company for any reason, the Recipient shall promptly deliver to the Company (or certify the destruction of) all Confidential\nMaterial (and all copies thereof) furnished to the Recipient or its Representatives by or on behalf of the Company pursuant to this Agreement\n5.\nDisclaimer. Neither the Company nor its representatives makes any representation or warranty as to the accuracy or completeness of the Confidential Material. Neither the Company nor its representatives\nshal have any liability to the Recipient resulting from the use of the Confidentia Material.\n6. Remedies. The parties agree that money damages would not be a sufficient remedy for any breach of this Agreement and that the Company shal be entitled to equitable relief, including injunction and specific\nperformance, as a remedy for any such breach Such remedies shall not be deemed to be the exclusive remedies for a breach by the Recipient of this Agreement but shall be in addition to all other remedies available\nat law or equity.\n7. General Provisions.\na. No failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or\nfurther\nexercise\nthereof or the exercise of any right, power or privilege.\nb. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota.\nC. This Agreement shall be binding and inure to the benefit of the parties hereto and their respective successors and assigns.\nd. This Agreement shall constitute the entire agreement between the parties hereto with regard to the subject matter hereof. No modification, amendment or waiver shall be binding without the written consent\nof the parties. Each party hereto represents and warrants that it has the full power and authority to enter into this Agreement and to perform its obligations hereunder.\nIN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first above written.\nRECIPIENT:\nWIMBISH RITEWAY REALTORS\nBy\nIts\nCHOICETEL COMMUNICATIONS, INC.\nCOMPANY:\nBy\nIts	EXHIBIT B\nTO\nBROKERAGE AGREEMENT\nForm of Confidentiality Agreement between Company and Broker\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is made as of the\nday of\n, 2001, by and between, ChoiceTel Communications, Inc., a Minnesota corporation (the "Company") , and Wimbish Riteway Realtors, a Florida\ncorporation (the "Recipient") .\nIn connection with the engagement of Recipient as brokerage agent pursuant to that certain Brokerage Agreement of even date herewith (the "Brokerage Agreement") between the Recipient and the Company,\nthe Company is prepared to make available to the Recipient certain information with respect to the Company which is non-public, confidential or proprietary in nature. As a condition to furnishing such information to\nthe Recipient, the Company requires and the Recipient agrees that any information concerning the Company (whether prepared by the Company, its advisors or otherwise) which is furnished to the Recipient by or on\nbehalf of the Company (whether before or after the date of this Agreement, whether furnished orally or in writing or gathered by inspection, and regardless of whether or not specifically marked or identified as\n"c onfidential") (the "Confidential Material") shall be safeguarded and treated as confidential in accordance with the provisions of this Agreement. The term "Confidential Material" does not include information which\n(a) is or becomes generally available to the public other than by disclosure by the Recipient, (b) was or becomes available to the Recipient on a non-confidential basis from a third party who, to the best of the\nRecipient's knowledge, was not under an obligation of confidentiality to the Company, or (c) was or is independently developed by the Recipient without reference to the Confidential Material.\n1. Use of Confidential Material. The Recipient agrees that it shall use the Confidential Material solely for the purpose of performing Recipient's obligations under the Brokerage Agreement and not for any other\npurpose. The Recipient further agrees that it shall not take, or fail to take, any action that would allow, assist or permit any other person or entity to use the Brokerage Material in a manner that, if so used by the\nRecipient, would be in violation of any of the terms of this Agreement.\n2. Non-Disclosure of Confidential Material. The Recipient agrees that the Confidential Material shall be kept confidential by it and its Representatives, and that the Recipient shall not disclose any of the\nConfidential Material in any manner whatsoever except (a) to those directors, officers, employees, consultants, auditors or counsel of the Recipient (the "Representatives") who need to know such information for\npurposes directly relating to the Brokerage Agreement, or (b) with the prior written consent of the Company. The Recipient agrees to expressly advise such Representatives that the information is to be kept\nconfidential, and such Representatives shall agree to keep such information confidential and abide by the terms of this Agreement.\n3. Legal Proceedings. In the event that Recipient is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or other process or\nrequirement of law) to disclose (i) all or any part of the Confidential Material or (ii) any information relating to its opinion, judgment or recommendations concerning the Company, its affiliates or subsidiaries as\ndeveloped from Confidential Material, Recipient will provide the Company with prompt notice of any such request or requirement so that the Company may seek an appropriate protective order, other appropriate\nremedy or waive Recipient's compliance with the provisions of this Agreement. If, failing the entry of a protective order or other appropriate remedy or the receipt of a waiver hereunder, disclosure of all or any part of\nthe Confidential Material is required, Recipient may disclose that portion of the Confidential Material which, upon advise of counsel, Recipient is compelled to disclose. In any event, Recipient will not oppose action by\nthe Company to obtain an appropriate\nprotective order or other reliable assurance that confidential treatment will be accorded to the Confidential Material.\n4. Return of Confidential Material. Upon termination of the Brokerage Agreement, the Recipient and its Representatives shall promptly deliver to the Company all written Confidential Material (and copies\nthereof) and all information derived therefrom. At any time upon the written request of the Company for any reason, the Recipient shall promptly deliver to the Company (or certify the destruction of) all Confidential\nMaterial (and all copies thereof) furnished to the Recipient or its Representatives by or on behalf of the Company pursuant to this Agreement.\n5. Disclaimer. Neither the Company nor its representatives makes any representation or warranty as to the accuracy or completeness of the Confidential Material. Neither the Company nor its representatives\nshall have any liability to the Recipient resulting from the use of the Confidential Material.\n6. Remedies. The parties agree that money damages would not be a sufficient remedy for any breach of this Agreement and that the Company shall be entitled to equitable relief, including injunction and specific\nperformance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach by the Recipient of this Agreement but shall be in addition to all other remedies available\nat law or equity.\n7. General Provisions.\na. No failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise\nthereof or the exercise of any right, power or privilege.\nb. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota.\nc. This Agreement shall be binding and inure to the benefit of the parties hereto and their respective successors and assigns.\nd. This Agreement shall constitute the entire agreement between the parties hereto with regard to the subject matter hereof. No modification, amendment or waiver shall be binding without the written consent\nof the parties. Each party hereto represents and warrants that it has the full power and authority to enter into this Agreement and to perform its obligations hereunder.\nIN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first above written.\nRECIPIENT:\nWIMBISH RITEWAY REALTORS\nBy\nIts\nCOMPANY:\nCHOICETEL COMMUNICATIONS, INC .\nBy\nIts
ad608ce99e4d07c363f5e6d414af7416.pdf	effective_date jurisdiction party	Exhibit 10.2\nRESTRICTIVE COVENANT and\nconfidentiality AGREEMENT\nNovember 1, 2018\nAs a condition of my employment with LSI Industries Inc. (“LSI”), and in consideration of my employment with LSI and the\ninducement award of stock options by LSI to me, I, James A. Clark, agree to the following provisions of this Restrictive Covenant\nand Confidentiality Agreement concerning my employment with LSI (“the Agreement”):\n1. AT -WILL EMPLOYMENT\nI understand and acknowledge that my employment with LSI is for no specified term and constitutes “At Will” employment.\nI also understand that any representation to the contrary is unauthorized and not valid unless in writing and signed by the chief\nhuman resources officer of LSI. Accordingly, I acknowledge that my employment relationship may be terminated at any time,\nwith or without good cause or for any or no cause, or for any reason or no reason at my option or at the option of LSI, with or\nwithout notice. I further acknowledge that LSI may modify job titles, salaries, and benefits from time to time as it deems\nappropriate or necessary.\n2. CONFIDENTIALITY\nA.\n“Confidential Information” means any data, information or material (whether in written, oral, graphic, electronic or\nother form) with respect to LSI’s past, current or anticipated business that is not generally known by the public or in the industry,\nincluding confidential or proprietary business information and trade secrets, whether or not such information is marked or\notherwise designated as confidential or restricted. Confidential Information does not include any information that: (a) is or\nbecomes part of the public domain or is or becomes publicly available without breach of this agreement by me; (b) I lawfully\nacquire from a source not under any non-use or confidentiality obligation regarding such information; (c) is disclosed to any third\nparty by or with the permission of LSI without confidentiality restrictions; or, (d) is independently developed by a person who has\nnot received, directly or indirectly, any Confidential Information from any source. Confidential Information does include, but is\nnot limited to:\n(i) Products and processes and their development and performance;\n(ii) Any scientific, engineering, or technical information used during the course of my employment at LSI;\n(iii) Computer software and firmware;\n(iv) Business and financial information, including names of and contact information for customers, prospective\ncustomers and suppliers;\n(v) Information relating to manufacturing, purchasing, sourcing, inventories, data processing, personnel, marketing,\nsales, pricing, costs and quotations; and\n(vi) Information regarding third parties or provided by third parties and known to LSI which LSI is obligated by\nstatute, regulation, license or other agreement not to disclose or to only use for limited purposes.\nB.\nNonuse and Nondisclosure. I agree that during and after my employment with LSI, I will hold in the strictest\nconfidence, and take all reasonable precautions to prevent any unauthorized use or disclosure of Confidential Information, and I\nwill not (i) use the Confidential Information for any purpose whatsoever other than for the benefit of LSI in the course of my\nemployment, or (ii) disclose Confidential Information to any third party without the prior written authorization of my supervisor\nand in compliance with LSI policy regarding the transmittal of Confidential Information. Upon termination of my assignment, my\nemployment, or as requested by my supervisor, I will promptly return all materials containing Confidential Information and\ncopies thereof to LSI. If compelled to produce Confidential Information by applicable law, I shall provide prior written notice of\nat least seven business days to my supervisor. I agree that I obtain no license, copyright, title or any other ownership rights to any\nConfidential Information, and that as between LSI and me, LSI retains all Confidential Information as its sole property. I\nunderstand that my unauthorized use or disclosure of Confidential Information during my employment may lead to disciplinary\naction, up to and including immediate termination and legal action by LSI. I understand that my obligations under this section\nsurvive the termination of my employment.\nC. Notice of Immunity from Liability for Confidential Disclosure of a Trade Secret to the Government or in a Court Filing.\nNotwithstanding anything herein to the contrary, pursuant to the Federal Defend Trade Secrets Act of 2016, an individual may not\nbe held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made\n(i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for\nthe purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a\nlawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for\nreporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret\ninformation in the court proceeding if the individual files any document containing the trade secret under seal and does not\ndisclose the trade secret except pursuant to court order. Nothing herein is intended, or should be construed, to affect the\nimmunities created by the Defend Trade Secrets Act of 2016.\nD. Former Employer. I agree that I will not, during my employment with LSI, improperly use or disclose any proprietary\ninformation of any former or concurrent employer or other person or entity, and that I will not bring onto the premises of LSI any\nunpublished document or proprietary information belonging to any such employer, person or entity unless consented to in writing\nby such employer, person or entity. I also represent and warrant that I am not subject to any agreements with any third person or\nentity that would limit or affect my ability to work for and on behalf of LSI; provided, however, that if I am subject to such an\nagreement, then I will strictly abide by such agreement.\n3. NON-COMPETITION AND NON-SOLICITATION\nIn consideration for LSI’s agreement to employ and compensate me, and/or continue to employ and compensate me, and\nLSI’s granting of access to me to Confidential Information, and for other good and valuable consideration, the sufficiency of\nwhich I acknowledge, I agree as follows:\n2\nA. By virtue of my employment with LSI, I acquired Confidential Information, as defined by this Agreement, and but for\nmy association with LSI, I would not have had access to the Confidential Information. The Confidential Information allows for\nLSI to have a competitive advantage. I acknowledge that if I disclose or use the Confidential Information, I will cause irreparable\nharm to LSI.\nB. For purposes of this Agreement, the “Non-Compete and Non-Solicit Period” means a period of 12 months following the\ntermination of my employment with LSI.\nC. For purposes of this Agreement, “Competitor” means any person or entity with which LSI competes in the lighting and\nlighting controls industries (including but not limited to Acuity Brands, Eaton / Cooper Lighting, Hubbell Lighting, Philips\nLighting, Cree, General Electric, H.E . Williams, Legrand, Leviton and Lutron) or graphics or digital signage industries (including\nbut not limited to Federal Heath, YESCO, Blair, Everbrite, ICON, Vomeal, Miller Zell, Persona, Sign Resource, Stratacache,\nAVI, Whitlock, Diversified, Tech Innovations, CCS, HB Comm, Sicom and Four Winds) and each of their affiliates, subsidiaries\nand related businesses operating in such industries.\nD. For purposes of this Agreement, “Customer” means any person or entity with which LSI has an ongoing business\nrelationship or a prospective business relationship for the 12 months prior to the date of this Agreement, including vendors,\nrepresentatives or suppliers.\nE. For purposes of this Agreement, “Competitive Activity” means directly or indirectly, individually or in combination\nwith others, engaging in any one or more of the following acts:\n(i) accepting employment with a Competitor;\n(ii) calling on, contacting, communicating with, or soliciting any Customer for the purpose of inducing them to\ndivert their business to another entity or business;\n(iii) interfering with any contract or other agreement that LSI may now or hereafter have, including, that would or\ncould in any way be injurious or detrimental to LSI’s image, business relationships or its business; or\n(iv) encouraging or soliciting any of LSI’s employees or agents to terminate or modify their relationships with LSI\nor hiring or engaging such persons for any purpose whatsoever. I acknowledge that this covenant is necessary to enable\nLSI to maintain a stable workforce.\nF. I agree to refrain from directly or indirectly engaging in any Competitive Activity, including assisting another to engage\nin any Competitive Activity, at all times during my employment with LSI and during the Non-Compete and Non-Solicit Period.\n3\nG. Recognizing that irreparable injury will result to LSI, its business and property if I were to breach any of the foregoing\ncovenants or my obligations as set forth in this Agreement, I agree that in the event of any such breach or threatened breach, LSI\nis entitled, in addition to any other remedies and damages available, to an injunction to restrain the violation or continued\nviolation of this Agreement by me. In the event any provision, restriction or part of this section of the Agreement shall be\ninvalidated, the remainder thereof shall nevertheless continue to be valid and fully enforceable.\nH. I understand and agree that this agreement is in addition to and does not limit my obligations under any LSI policy, or\nany statute, regulation or common law, regarding the matters covered above. I understand that a breach or violation of this\nagreement could subject me to disciplinary action, including termination or legal action, or both. I further understand that nothing\nin this agreement prevents me from giving truthful testimony or otherwise complying with applicable legal requirements.\nI. In the event any provision, restriction or part of this section of the Agreement shall be invalidated, the remainder thereof\nshall nevertheless continue to be valid and fully enforceable, and in the event any claims of any invalidity or unenforceability\nshall be predicated upon the temporal and/or geographic area covered thereby, it is expressly agreed that such provision shall\nthereby be deemed modified to the maximum geographic area and the maximum temporal duration.\n4. INTELLECTUAL PROPERTY\nI acknowledge and agree that all plans, designs, processes, research and development, original works of authorship, product\nknow-how and show-how, methodologies, techniques, inventions, discoveries, improvements, modifications, derivative works,\ncomputer programs, computer hardware and software, including source code and object code, algorithms and any other\nintellectual property, whether or not subject to patent or copyright protection, relating to the LSI’s business are the sole and\nexclusive property of LSI (“LSI Intellectual Property”). I shall promptly disclose all LSI Intellectual Property that I make,\ncreate, author, originate, conceive, develop or reduce to practice, either alone or jointly with others, at any time during my\nemployment with LSI, which are within or in any way related to the existing or contemplated scope of LSI’s business (all of\nwhich LSI Intellectual Property shall be deemed made during the employment relationship if made or conceived within twelve\n(12) months following termination of my employment). I shall assign, without additional consideration, and hereby irrevocably\nassign to LSI any and all rights, title and interest that I may have or acquire in LSI Intellectual Property and all patents,\ncopyrights, trademarks and other rights associated therewith.\nI shall cooperate with and assist LSI, as is reasonably required, to protect its interests in LSI Intellectual Property, including\nbut not limited to executing and filing any document requested by the LSI if it deems necessary to apply for any patent, copyright,\ntrademark or other proprietary right in any and all countries, or to convey any rights, title or interest therein to any of its\nnominees, successors or assigns. Notwithstanding anything herein to the contrary, nothing is intended to assign any of my rights\ntitles or interests in or to any patents, copyrights or trademarks, or applications therefor that was developed entirely outside of the\nemployment relationship with LSI, unless the patents, copyrights or trademarks, or applications therefor, or any other intellectual\nproperty: (i) relates to the business of LSI or to LSI’s actual or demonstrably anticipated research and development; or (ii) results\nfrom any work performed by me for LSI.\n4\n5. RETURN OF LSI MATERIALS\nUpon separation from employment with LSI, on LSI’s earlier request during my employment, or at any time subsequent to\nmy employment upon demand from LSI, I will immediately deliver to LSI, and will not keep in my possession, recreate, or\ndeliver to anyone else, any and all LSI property, including, but not limited to, Confidential Information, all devices and\nequipment belonging to LSI (including computers, handheld electronic devices, telephone equipment, and other electronic\ndevices), all tangible embodiments of the Inventions, all electronically stored information and passwords to access such property,\nLSI credit cards, records, data, notes, notebooks, reports, files, proposals, lists, correspondence, specifications, drawings,\nblueprints, sketches, materials, photographs, charts, any other documents and property, and reproductions of any of the foregoing\nitems. I also consent to an exit interview to confirm my compliance with the terms of this Agreement.\n6. NOTIFICATION OF NEW EMPLOYER\nIn the event that I leave the employ of LSI, I hereby grant consent to notification by LSI to my new employer about my rights\nand obligations under this Agreement. I also agree to disclose the existence and terms of this Agreement to any subsequent\npotential employer or principal who competes in any way with LSI for business, customers and/or employees no later than\nfourteen (14) days prior to the commencement of employment with that employer.\n7. MISCELLANEOUS\nA. Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by the laws of the State of Ohio\nwithout regard to Ohio conflicts of law rules that may result in the application of the laws of any jurisdiction other than Ohio. To\nthe extent that any lawsuit is permitted under this Agreement, I hereby expressly consent to the personal and exclusive\njurisdiction and venue of the state and federal courts located in Hamilton County, Ohio for any lawsuit filed against me by LSI.\nB.\nAssignability. This Agreement will be binding upon my heirs, executors, assigns, administrators, and other legal\nrepresentatives, and will be for the benefit of LSI, its successors, and its assigns. There are no intended third-party beneficiaries to\nthis Agreement, except as may be expressly otherwise stated. Notwithstanding anything to the contrary herein, LSI may assign\nthis Agreement and its rights and obligations under this Agreement to any successor to all or substantially all of LSI’s relevant\nassets, whether by merger, consolidation, reorganization, reincorporation, conversion, sale of assets, sale of membership interests,\nstock or other equity interests, or otherwise.\nC. Entire Agreement. This Agreement sets forth the entire agreement and understanding between LSI and me with respect\nto the subject matter herein and supersedes all prior written and oral agreements, discussions, or representations between us,\nincluding, but not limited to, any representations made during my interview(s). I represent and warrant that I am not relying on\nany statement or representation not contained in this Agreement. Any subsequent change or changes in my duties, salary, or\ncompensation will not affect the validity or scope of this Agreement.\n5\nD. Headings. Headings are used in this Agreement for reference only and shall not be considered when interpreting this\nAgreement.\nE. Severability. If a court or other body of competent jurisdiction finds, or the Parties mutually believe, any provision of\nthis Agreement, or portion thereof, to be invalid or unenforceable, such provision will be enforced to the maximum extent\npermissible so as to affect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect.\nF. Modification, Waiver. No modification of or amendment to this Agreement, nor any waiver of any rights under this\nAgreement, will be effective unless in a writing signed by a manager or officer of LSI and me. Waiver by LSI of a particular\nbreach of any provision of this Agreement will not operate as a waiver of any other provision or subsequent breach.\nG. Survivorship. The rights and obligations of the parties to this Agreement will survive termination of my employment\nwith LSI.\n/s/ James A. Clark\nSignature\nJames A. Clark\nNovember 1, 2018\nLSI INDUSTRIES INC.\n/s/ Howard E. Japlon\nSignature\nHoward E. Japlon\nEVP, Human Resources & General Counsel\nNovember 1, 2018\n6	Exhibit 10.2\nRE STRICTIVE COVENANT and\nconfidentiality A G RE E M E NT\nNovember 1, 2018\nAs a condition of my employment with LSI Industries Inc. (”L SI”), and in consideration of my employment with LSI and the\ninducement award of stock options by LSI to me, I, James A. Clark, agree to the following provisions of this Restrictive Covenant\nand Confidentiality Agreement concerning my employment with LSI (”the Agreement”):\n1. AT-WILL EMPLOYMENT\nI understand and acknowledge that my employment with LSI is for no specified term and constitutes ”At Will” employment.\nI also understand that any representation to the contrary is unauthorized and not valid unless in writing and signed by the chief\nhuman resources officer of LSI. Accordingly, I acknowledge that my employment relationship may be terminated at any time,\nwith or without good cause or for any or no cause, or for any reason or no reason at my option or at the option of LSI, with or\nwithout notice. I further acknowledge that LSI may modify job titles, salaries, and benefits from time to time as it deems\nappropriate or necessary.\n2. C O NFIDENTIALITY\nA. ”Confidential Information” means any data, information or material (whether in written, oral, graphic, electronic or\nother form) with respect to LSI' s past, current or anticipated business that is not generally known by the public or in the industry,\nincluding confidential or proprietary business information and trade secrets, whether or not such information is marked or\notherwise designated as confidential or restricted. Confidential Information does not include any information that: (a) is or\nbecomes part of the public domain or is or becomes publicly available without breach of this agreement by me; (b) I lawfully\nacquire from a source not under any non-use or confidentiality obligation regarding such information; (c) is disclosed to any third\nparty by or with the permission of LSI without confidentiality restrictions; or, (d) is independently developed by a person who has\nnot received, directly or indirectly, any Confidential Information from any source. Confidential Information does include, but is\nnot limited to:\n(i) Products and processes and their development and performance;\n(ii) Any scientific, engineering, or technical information used during the course of my employment at LSI;\n(iii) Computer software and firmware;\n(iv) Business and financial information, including names of and contact information for customers, prospective\ncustomers and suppliers;\n(v) Information relating to manufacturing, purchasing, sourcing, inventories, data processing, personnel, marketing,\nsales, pricing, costs and quotations; and\n(vi) Information regarding third parties or provided by third parties and known to LSI which LSI is obligated by\nstatute, regulation, license or other agreement not to disclose or to only use for limited purposes.\nB. Nonuse and Nondisclosure. I agree that during and after my employment with LSI, I will hold in the strictest\nconfidence, and take all reasonable precautions to prevent any unauthorized use or disclosure of Confidential lnfonnation, and I\nwill not (i) use the Confidential lnfonnation for any purpose whatsoever other than for the benefit of LSI in the course of my\nemployment, or (ii) disclose Confidential Information to any third party without the prior written authorization of my supervisor\nand in compliance with LSI policy regarding the transmittal of Confidential lnfonnation. Upon termination of my assignment, my\nemployment, or as requested by my supervisor, I will promptly return all materials containing Confidential Information and\ncopies thereof to LSI. If compelled to produce Confidential lnfonnation by applicable law, I shall provide prior written notice of\nat least seven business days to my supervisor. I agree that I obtain no license, copyright, title or any other ownership rights to any\nConfidential lnfonnation, and that as between LSI and me, LSI retains all Confidential lnfonnation as its sole property. I\nunderstand that my unauthorized use or disclosure of Confidential lnfonnation during my employment may lead to disciplinary\naction, up to and including immediate termination and legal action by LSI. I understand that my obligations under this section\nsurvive the termination of my employment.\nC. Notice of Immunity from Liability for Confidential Disclosure of a Trade Secret to the Government or in a Court Filing.\nNotwithstanding anything herein to the contrary, pursuant to the Federal Defend Trade Secrets A ct of 2016, an individual may not\nbe held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made\n(i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for\nthe purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a\nlawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for\nreporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret\ninformation in the court proceeding if the individual files any document containing the trade secret under seal and does not\ndisclose the trade secret except pursuant to court order. Nothing herein is intended, or should be construed, to affect the\nimmunities created by the Defend Trade Secrets A ct of 2016.\nD. Former Employer. I agree that I will not, during my employment with LSI, improperly use or disclose any proprietary\ninformation of any former or concurrent employer or other person or entity, and that I will not bring onto the premises of LSI any\nunpublished document or proprietary information belonging to any such employer, person or entity unless consented to in writing\nby such employer, person or entity. I also represent and warrant that I am not subject to any agreements with any third person or\nentity that would limit or affect my ability to work for and on behalf of LSI; provided, however, that if I am subject to such an\nagreement, then I will strictly abide by such agreement.\n3. NON-COMPETITION AND NON-SOLICITATION\nIn consideration for LSI’s agreement to employ and compensate me, and/or continue to employ and compensate me, and\nLSI’s granting of access to me to Confidential Information, and for other good and valuable consideration, the sufficiency of\nwhich I acknowledge, I agree as follows:\nA. By virtue of my employment with LSI, I acquired Confidential lnfonnation, as defined by this Agreement, and but for\nmy association with LSI, I would not have had access to the Confidential lnfonnation. The Confidential lnfonnation allows for\nLSI to have a competitive advantage. I acknowledge that if I disclose or use the Confidential lnfonnation, I will cause irreparable\nharm to LSI.\nB. For purposes of this Agreement, the ”Non-Compete and Non-Solicit Period” means a period of 12 months following the\ntermination of my employment with LSI.\nC. For purposes of this Agreement, ”Competitor” means any person or entity with which LSI competes in the lighting and\nlighting controls industries (including but not limited to Acuity Brands, Eaton / Cooper Lighting, Hubbell Lighting, Philips\nLighting, Cree, General Electric, H.E. Williams, Legrand, Leviton and Lutron) or graphics or digital signage industries (including\nbut not limited to Federal Heath, YESCO, Blair, Everbrite, ICON, Vomeal, Miller Zell, Persona, Sign Resource, Stratacache,\nAVI, Whitlock, Diversified, Tech Innovations, CCS, HB Comm, Sicom and Four Winds) and each of their affiliates, subsidiaries\nand related businesses operating in such industries.\nD. For purposes of this Agreement, ”Customer” means any person or entity with which LSI has an ongoing business\nrelationship or a prospective business relationship for the 12 months prior to the date of this Agreement, including vendors,\nrepresentatives or suppliers.\nE. For purposes of this Agreement, ”Competitive Activity" means directly or indirectly, individually or in combination\nwith others, engaging in any one or more of the following acts:\n(i) accepting employment with a Competitor;\n(ii) calling on, contacting, communicating with, or soliciting any Customer for the purpose of inducing them to\ndivert their business to another entity or business;\n(iii) interfering with any contract or other agreement that LSI may now or hereafter have, including, that would or\ncould in any way be injurious or detrimental to LSI' s image, business relationships or its business; or\n(iv) encouraging or soliciting any of LSI’s employees or agents to terminate or modify their relationships with LSI\nor hiring or engaging such persons for any purpose whatsoever. I acknowledge that this covenant is necessary to enable\nLSI to maintain a stable workforce.\nE. I agree to refrain from directly or indirectly engaging in any Competitive Activity, including assisting another to engage\nin any Competitive Activity, at all times during my employment with LSI and during the Non-Compete and Non-Solicit Period.\nG. Recognizing that irreparable injury will result to LSI, its business and property if I were to breach any of the foregoing\ncovenants or my obligations as set forth in this Agreement, I agree that in the event of any such breach or threatened breach, LSI\nis entitled, in addition to any other remedies and damages available, to an injunction to restrain the violation or continued\nviolation of this Agreement by me. In the event any provision, restriction or part of this section of the Agreement shall be\ninvalidated, the remainder thereof shall nevertheless continue to be valid and fully enforceable.\nH. I understand and agree that this agreement is in addition to and does not limit my obligations under any LSI policy, or\nany statute, regulation or common law, regarding the matters covered above. I understand that a breach or violation of this\nagreement could subject me to disciplinary action, including termination or legal action, or both. I further understand that nothing\nin this agreement prevents me from giving truthful testimony or otherwise complying with applicable legal requirements.\nI. In the event any provision, restriction or part of this section of the Agreement shall be invalidated, the remainder thereof\nshall nevertheless continue to be valid and fully enforceable, and in the event any claims of any invalidity or unenforceability\nshall be predicated upon the temporal and/or geographic area covered thereby, it is expressly agreed that such provision shall\nthereby be deemed modified to the maximum geographic area and the maximum temporal duration.\n4. INTEL L ECTUAL PRO PE RTY\nI acknowledge and agree that all plans, designs, processes, research and development, original works of authorship, product\nknow-how and show-how, methodologies, techniques, inventions, discoveries, improvements, modifications, derivative works,\ncomputer programs, computer hardware and software, including source code and object code, algorithms and any other\nintellectual property, whether or not subject to patent or copyright protection, relating to the LSI’s business are the sole and\nexclusive property of LSI (”LSI Intellectual Property”). I shall promptly disclose all LSI Intellectual Property that I make,\ncreate, author, originate, conceive, develop or reduce to practice, either alone or jointly with others, at any time during my\nemployment with LSI, which are within or in any way related to the existing or contemplated scope of LSI’s business (all of\nwhich LSI Intellectual Property shall be deemed made during the employment relationship if made or conceived within twelve\n(12) months following termination of my employment). I shall assign, without additional consideration, and hereby irrevocably\nassign to LSI any and all rights, title and interest that I may have or acquire in LSI Intellectual Property and all patents,\ncopyrights, trademarks and other rights associated therewith.\nI shall cooperate with and assist LSI, as is reasonably required, to protect its interests in LSI Intellectual Property, including\nbut not limited to executing and filing any document requested by the LSI if it deems necessary to apply for any patent, copyright,\ntrademark or other proprietary right in any and all countries, or to convey any rights, title or interest therein to any of its\nnominees, successors or assigns. Notwithstanding anything herein to the contrary, nothing is intended to assign any of my rights\ntitles or interests in or to any patents, copyrights or trademarks, or applications therefor that was developed entirely outside of the\nemployment relationship with LSI, unless the patents, copyrights or trademarks, or applications therefor, or any other intellectual\nproperty: (1) relates to the business of LSI or to LSI’s actual or demonstrably anticipated research and development; or (ii) results\nfrom any work performed by me for LSI.\n5. RETURN OF LSI MATERIALS\nUpon separation from employment with LSI, on LSI’s earlier request during my employment, or at any time subsequent to\nmy employment upon demand from LSI, I will immediately deliver to LSI, and will not keep in my possession, recreate, or\ndeliver to anyone else, any and all LSI property, including, but not limited to, Confidential Information, all devices and\nequipment belonging to LSI (including computers, handheld electronic devices, telephone equipment, and other electronic\ndevices), all tangible embodiments of the Inventions, all electronically stored information and passwords to access such property,\nLSI credit cards, records, data, notes, notebooks, reports, files, proposals, lists, correspondence, specifications, drawings,\nblueprints, sketches, materials, photographs, charts, any other documents and property, and reproductions of any of the foregoing\nitems. I also consent to an exit interview to confirm my compliance with the terms of this Agreement.\n6. NOTIFICATION OF NEW EMPLOYER\nIn the event that I leave the employ of LSI, I hereby grant consent to notification by LSI to my new employer about my rights\nand obligations under this Agreement. I also agree to disclose the existence and terms of this Agreement to any subsequent\npotential employer or principal who competes in any way with LSI for business, customers and/or employees no later than\nfourteen (14) days prior to the commencement of employment with that employer.\n7. MISCELLANEOUS\nA. Governing Law; Consent to Personal urisdiction. This Agreement will be governed by the laws of the State of Ohio\nwithout regard to Ohio conflicts of law rules that may result in the application of the laws of any jurisdiction other than Ohio. To\nthe extent that any lawsuit is permitted under this Agreement, I hereby expressly consent to the personal and exclusive\njurisdiction and venue of the state and federal courts located in Hamilton County, Ohio for any lawsuit filed against me by LSI.\nB. Assignability. This Agreement will be binding upon my heirs, executors, assigns, administrators, and other legal\nrepresentatives, and will be for the benefit of LSI, its successors, and its assigns. There are no intended third-party beneficiaries to\nthis Agreement, except as may be expressly otherwise stated. Notwithstanding anything to the contrary herein, LSI may assign\nthis Agreement and its rights and obligations under this Agreement to any successor to all or substantially all of LSI’s relevant\nassets, whether by merger, consolidation, reorganization, reincorporation, conversion, sale of assets, sale of membership interests,\nstock or other equity interests, or otherwise.\nC. Entire Agreement. This Agreement sets forth the entire agreement and understanding between LSI and me with respect\nto the subject matter herein and supersedes all prior written and oral agreements, discussions, or representations between us,\nincluding, but not limited to, any representations made during my interview(s). I represent and warrant that I am not relying on\nany statement or representation not contained in this Agreement. Any subsequent change or changes in my duties, salary, or\ncompensation will not affect the validity or scope of this A greement.\nD. Headings. Headings are used in this Agreement for reference only and shall not be considered when interpreting this\nAgreement.\nE. Severabiligl. If a court or other body of competent jurisdiction finds, or the Parties mutually believe, any provision of\nthis Agreement, or portion thereof, to be invalid or unenforceable, such provision will be enforced to the maximum extent\npermissible so as to affect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect.\nF. Modification, Waiver. No modification of or amendment to this Agreement, nor any waiver of any rights under this\nAgreement, will be effective unless in a writing signed by a manager or officer of LSI and me. Waiver by LSI of a particular\nbreach of any provision of this Agreement will not operate as a waiver of any other provision or subsequent breach.\nG. Survivorship. The rights and obligations of the parties to this Agreement will survive termination of my employment\nwith LSI.\n/s/ James A. Clark\nTignafire\nJames A. Clark\nNovember 1, 2018\nLSI INDUSTRIES INC.\n/s/ Howard E. Japlon\nSlgnafire\nHoward E. aplon\nEV P, Human Resources & General Counsel\nNovember 1, 2018	Exhibit 10.2\nRESTRICTIVE COVENANT and\nconfidentiality AGREEMENT\nNovember 1, 2018\nAs a condition of my employment with LSI Industries Inc. ("LSI"), and in consideration of my employment with LSI and the\ninducement award of stock options by LSI to me, I, James A. Clark, agree to the following provisions of this Restrictive Covenant\nand Confidentiality Agreement concerning my employment with LSI ("the Agreement"):\n1. AT-WILL EMPLOYMENT\nI understand and acknowledge that my employment with LSI is for no specified term and constitutes "At Will" employment.\nI also understand that any representation to the contrary is unauthorized and not valid unless in writing and signed by the chief\nhuman resources officer of LSI. Accordingly, I acknowledge that my employment relationship may be terminated at any time,\nwith or without good cause or for any or no cause, or for any reason or no reason at my option or at the option of LSI, with or\nwithout notice. I further acknowledge that LSI may modify job titles, salaries, and benefits from time to time as it deems\nappropriate or necessary.\n2. CONFIDENTIALITY\nA.\n"Confidential Inforation" means any data, information or material (whether in written, oral, graphic, electronic or\nother form) with respect to LSI's past, current or anticipated business that is not generally known by the public or in the industry,\nincluding confidential or proprietary business information and trade secrets, whether or not such information is marked or\notherwise designated as confidential or restricted. Confidential Information does not include any information that: (a) is or\nbecomes part of the public domain or is or becomes publicly available without breach of this agreement by me; (b) I lawfully\nacquire from a source not under any non-use or confidentiality obligation regarding such information; (c) is disclosed to any third\nparty by or with the permission of LSI without confidentiality restrictions; or, (d) is independently developed by a person who has\nnot received, directly or indirectly, any Confidential Information from any source. Confidentia Information does include, but is\nnot limited to:\n(i)\nProducts and processes and their development and performance;\n(ii)\nAny scientific, engineering, or technical information used during the course of my employment at LSI;\n(iii)\nComputer software and firmware;\n(iv)\nBusiness and financial information, including names of and contact information for customers, prospective\ncustomers and suppliers;\n(v) Information relating to manufacturing, purchasing, sourcing, inventories, data processing, personnel, marketing,\nsales, pricing, costs and quotations; and\n(vi)\nInformation regarding third parties or provided by third parties and known to LSI which LSI is obligated by\nstatute, regulation, license or other agreement not to disclose or to only use for limited purposes.\nB.\nNonuse and Nondisclosure. I agree that during and after my employment with LSI, I will hold in the strictest\nconfidence, and take all reasonable precautions to prevent any unauthorized use or disclosure of Confidential Information, and I\nwill not (i) use the Confidential Information for any purpose whatsoever other than for the benefit of LSI in the course of my\nemployment, or (ii) disclose Confidential Information to any third party without the prior written authorization of my supervisor\nand in compliance with LSI policy regarding the transmittal of Confidential Information. Upon termination of my assignment, my\nemployment or as requested by my supervisor, I will promptly return all materials containing Confidential Information and\ncopies thereof to LSI. If compelled to produce Confidential Information by applicable law, I shall provide prior written notice of\nat least seven business days to my supervisor. I agree that I obtain no license, copyright, title or any other ownership rights to any\nConfidential Information, and that as between LSI and me, LSI retains all Confidential Information as its sole property. I\nunderstand that my unauthorized use or disclosure of Confidential Information during my employment may lead to disciplinary\naction, up to and including immediate termination and legal action by LSI. I understand that my obligations under this section\nsurvive the termination of my employment\nC. Notice of Immunity from Liability for Confidential Disclosure of a Trade Secret to the Goverment or in a Court Filing.\nNotwithstanding anything herein to the contrary, pursuant to the Federal Defend Trade Secrets A ct of 2016, an individual may not\nbe held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made\n(i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for\nthe purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a\nlawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for\nreporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret\ninformation in the court proceeding if the individual files any document containing the trade secret under seal and does not\ndisclose the trade secret except pursuant to court order. Nothing herein is intended, or should be construed, to affect the\nimmunities created by the Defend Trade Secrets A ct of 2016.\nD. Former Employer. I agree that I will not, during my employment with LSI, improperly use or disclose any proprietary\ninformation of any former or concurrent employer or other person or entity, and that I will not bring onto the premises of LSI any\nunpublished document or proprietary information belonging to any such employer, person or entity unless consented to in writing\nby such employer, person or entity. I also represent and warrant that I am not subject to any agreements with any third person or\nentity that would limit or affect my ability to work for and on behalf of LSI; provided, however, that if I am subject to such an\nagreement, then I will strictly abide by such agreement.\n3.\nNON-COMPETITION AND NON-SOLICITATION\nIn consideration for LSI's agreement to employ and compensate me, and/or continue to employ and compensate me, and\nLSI's granting of access to me to Confidential Information, and for other good and valuable consideration, the sufficiency of\nwhich I acknowledge, I agree as follows:\n2\nA. By virtue of my employment with LSI, I acquired Confidential Information, as defined by this Agreement, and but for\nmy association with LSI, I would not have had access to the Confidential Information. The Confidential Inforation allows for\nLSI to have a competitive advantage. I acknowledge that if I disclose or use the Confidential Information, I will cause irreparable\nharm to LSI.\nB. For purposes of this greement, the "Non-Compete and Non-Solicit Period" means a period of 12 months following the\ntermination of my employment with LSI.\nC.\nFor purposes of this Agreement, "Competitor" means any person or entity with which LSI competes in the lighting and\nlighting controls industries (including but not limited to Acuity Brands, Eaton / Cooper Lighting, Hubbell Lighting, Philips\nLighting, Cree, General Electric, H.E. Williams, Legrand, Leviton and Lutron) or graphics or digital signage industries (including\nbut not limited to Federal Heath, ESCO, Blair, Everbrite, ICON, Vomeal, Miller Zell, Persona, Sign Resource, Stratacache,\nAVI, Whitlock, Diversified, Tech Innovations, CCS, HB Comm, Sicom and Four Winds) and each of their affiliates, subsidiaries\nand related businesses operating in such industries.\nD. For purposes of this Agreement "Customer" means any person or entity with which LSI has an ongoing business\nrelationship or a prospective business relationship for the 12 months prior to the date of this Agreement, including vendors,\nrepresentatives or suppliers.\nE.\nFor purposes of this A greement, "Competitive Activity" means directly or indirectly, individually or in combination\nwith others, engaging in any one or more of the following acts:\n(i)\naccepting employment with a Competitor;\n(ii)\ncalling on, contacting, communicating with, or soliciting any Customer for the purpose of inducing them to\ndivert their business to another entity or business;\n(iii)\ninterfering with any contract or other agreement that LSI may now or hereafter have, including, that would or\ncould in any way be injurious or detrimental to LSI's image, business relationships or its business; or\n(iv) encouraging or soliciting any of LSI's employees or agents to terminate or modify their relationships with LSI\nor hiring or engaging such persons for any purpose whatsoever. I acknowledge that this covenant is necessary to enable\nLSI to maintain a stable workforce.\nF.\nI agree to refrain from directly or indirectly engaging in any Competitive Activity, including assisting another to engage\nin any Competitive ctivity, at all times during my employment with LSI and during the Non-Compete and Non-Solicit Period\n3\nG. Recognizing that irreparable injury will result to LSI, its business and property if I were to breach any of the foregoing\ncovenants or my obligations as set forth in this Agreement, I agree that in the event of any such breach or threatened breach, LSI\nis entitled, in addition to any other remedies and damages available, to an injunction to restrain the violation or continued\nviolation of this Agreement by me. In the event any provision, restriction or part of this section of the Agreement shall be\ninvalidated, the remainder thereof shall nevertheless continue to be valid and fully enforceable.\nH.\nI understand and agree that this agreement is in addition to and does not limit my obligations under any LSI policy, or\nany statute, regulation or common law, regarding the matters covered above. I understand that a breach or violation of this\nagreement could subject me to disciplinary action, including termination or legal action, or both. I further understand that nothing\nin this agreement prevents me from giving truthful testimony or otherwise complying with applicable legal requirements.\nI.\nIn the event any provision, restriction or part of this section of the greement shall be invalidated, the remainder thereof\nshall nevertheless continue to be valid and fully enforceable, and in the event any claims of any invalidity or unenforceability\nshall be predicated upon the temporal and/or geographic area covered thereby, it is expressly agreed that such provision shall\nthereby be deemed modified to the maximum geographic area and the maximum temporal duration.\n4. INTELLECTUAL PROPERTY\nI acknowledge and agree that all plans, designs, processes, research and development, original works of authorship, product\nknow-how and show-how, methodologies, techniques, inventions, discoveries, improvements, modifications, derivative works,\ncomputer programs, computer hardware and software, including source code and object code, algorithms and any other\nintellectual property, whether or not subject to patent or copyright protection, relating to the LSI's business are the sole and\nexclusive property of LSI ("LSI Intellectual Property"). I shall promptly disclose all LSI Intellectual Property that I make,\ncreate, author, originate, conceive, develop or reduce to practice, either alone or jointly with others, at any time during my\nemployment with LSI, which are within or in any way related to the existing or contemplated scope of LSI'S business (all\nof\nwhich LSI Intellectual Property shall be deemed made during the employment relationship if made or conceived within twelve\n(12) months following termination of my employment). I shall assign, without additional consideration, and hereby irrevocably\nassign to LSI any and all rights, title and interest that I may have or acquire in LSI Intellectual Property and all patents,\ncopyrights, trademarks and other rights associated therewith.\nI shall cooperate with and assist LSI, as is reasonably required, to protect its interests in LSI Intellectual Property, including\nbut not limited to executing and filing any document requested by the LSI if it deems necessary to apply for any patent, copyright,\ntrademark or other proprietary right in any and all countries, or to convey any rights, title or interest therein to any of its\nnominees, successors or assigns. Notwithstanding anything herein to the contrary, nothing is intended to assign any of my rights\ntitles or interests in or to any patents, copyrights or trademarks, or applications therefor that was developed entirely outside of the\nemployment relationship with LSI, unless the patents, copyrights or trademarks, or applications therefor, or any other intellectual\nproperty: (i) relates to the business of LSI or to LSI's actual or demonstrably anticipated research and development; or (ii) results\nfrom any work performed by me for LSI.\n4\n5.\nRETURN OF LSI MATERIALS\nUpon separation from employment with LSI, on LSI'S earlier request during my employment, or at any time subsequent to\nmy\nemployment\nupon\ndemand\nfrom\nLSI,\nI\nwill\nimmediately\ndeliver\nto\nLSI,\nand\nwill\nnot\nkeep\nin\nmy\npossession,\nrecreate,\nor\ndeliver to anyone else, any and all LSI property, including, but not limited to, Confidential Information, all devices and\nequipment belonging to LSI (including computers, handheld electronic devices, telephone equipment, and other electronic\ndevices), all tangible embodiments of the Inventions, all electronically stored information and passwords to access such property,\nLSI credit cards, records, data, notes, notebooks, reports, files, proposals, lists, correspondence, specifications, drawings,\nblueprints, sketches, materials, photographs, charts, any other documents and property, and reproductions of any of the foregoing\nitems. I also consent to an exit interview to confirm my compliance with the terms of this Agreement.\n6.\nNOTIFICATION OF NEW EMPLOYER\nIn the event that I leave the employ of LSI, I hereby grant consent to notification by LSI to my new employer about my rights\nand obligations under this A greement. I also agree to disclose the existence and terms of this greement to any subsequent\npotential employer or principal who competes in any way with LSI for business, customers and/or employees no later than\nfourteen (14) days prior to the commencement of employment with that employer.\n7. MISCELLANEOUS\nA.\nGoverning Law; Consent to Personal Jurisdiction. This Agreement will be govemed by the laws of the State of Ohio\nwithout regard to Ohio conflicts of law rules that may result in the application of the laws of any jurisdiction other than Ohio. To\nthe extent that any lawsuit is permitted under this Agreement, I hereby expressly consent to the personal and exclusive\njurisdiction and venue of the state and federal courts located in Hamilton County, Ohio for any lawsuit filed against me by LSI.\nB.\nAssignability. This Agreement will be binding upon my heirs, executors, assigns, administrators, and other legal\nrepresentatives, and will be for the benefit of LSI, its successors, and its assigns. There are no intended third-party beneficiaries to\nthis Agreement, except as may be expressly otherwise stated. Notwithstanding anything to the contrary herein, LSI may assign\nthis Agreement and its rights and obligations under this A greement to any successor to all or substantially all of LSI's relevant\nassets, whether by merger, consolidation, reorganization, reincorporation, conversion sale of assets, sale of membership interests,\nstock or other equity interests, or otherwise.\nC.\nEntire A greement. This Agreement sets forth the entire agreement and understanding between LSI and me with respect\nto the subject matter herein and supersedes all prior written and oral agreements, discussions, or representations between us,\nincluding, but not limited to, any representations made during my interview(s). I represent and warrant that I am not relying on\nany statement or representation not contained in this Agreement. Any subsequent change or changes in my duties, salary, or\ncompensation will not affect the validity or scope of this Agreement.\n5\nD.\nHeadings. Headings are used in this Agreement for reference only and shall not be considered when interpreting this\nAgreement.\nE. Severability If a court or other body of competent jurisdiction finds, or the Parties mutually believe, any provision of\nthis A greement, or portion thereof, to be invalid or unenforceable, such provision will be enforced to the maximum extent\npermissible so as to affect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect.\nF.\nModification, Waiver. No modification of or amendment to this Agreement, nor any waiver of any rights under this\ngreement, will be effective unless in a writing signed by a manager or officer of LSI and me. Waiver by LSI of a particular\nbreach of any provision of this A greement will not operate as a waiver of any other provision or subsequent breach.\nG. Survivorship. The rights and obligations of the parties to this Agreement will survive termination of my employment\nwith LSI.\n/s/ James A. Clark\nS1gnature\nJames A. Clark\nNovember 1, 2018\nLSI INDUSTRIES INC.\n/s/ Howard E. Japlon\nS1gnature\nHoward E. Japlon\nEVP, Human Resources & General Counsel\nNovember 1, 2018\n6	Exhibit 10.2\nRESTRICTIVE COVENANT and\nconfidentiality AGREEMENT\nNovember 1, 2018\nAs a condition of my employment with LSI Industries Inc. (“LSI”), and in consideration of my employment with LSI and the\ninducement award of stock options by LSI to me, I, James A. Clark, agree to the following provisions of this Restrictive Covenant\nand Confidentiality Agreement concerning my employment with LSI (“the Agreement”):\n1. AT -WILL EMPLOYMENT\nI understand and acknowledge that my employment with LSI is for no specified term and constitutes “At Will” employment.\nI also understand that any representation to the contrary is unauthorized and not valid unless in writing and signed by the chief\nhuman resources officer of LSI. Accordingly, I acknowledge that my employment relationship may be terminated at any time,\nwith or without good cause or for any or no cause, or for any reason or no reason at my option or at the option of LSI, with or\nwithout notice. I further acknowledge that LSI may modify job titles, salaries, and benefits from time to time as it deems\nappropriate or necessary.\n2. CONFIDENTIALITY\nA.\n“Confidential Information” means any data, information or material (whether in written, oral, graphic, electronic or\nother form) with respect to LSI’s past, current or anticipated business that is not generally known by the public or in the industry,\nincluding confidential or proprietary business information and trade secrets, whether or not such information is marked or\notherwise designated as confidential or restricted. Confidential Information does not include any information that: (a) is or\nbecomes part of the public domain or is or becomes publicly available without breach of this agreement by me; (b) I lawfully\nacquire from a source not under any non-use or confidentiality obligation regarding such information; (c) is disclosed to any third\nparty by or with the permission of LSI without confidentiality restrictions; or, (d) is independently developed by a person who has\nnot received, directly or indirectly, any Confidential Information from any source. Confidential Information does include, but is\nnot limited to:\n(i) Products and processes and their development and performance;\n(ii) Any scientific, engineering, or technical information used during the course of my employment at LSI;\n(iii) Computer software and firmware;\n(iv) Business and financial information, including names of and contact information for customers, prospective\ncustomers and suppliers;\n(v) Information relating to manufacturing, purchasing, sourcing, inventories, data processing, personnel, marketing,\nsales, pricing, costs and quotations; and\n(vi) Information regarding third parties or provided by third parties and known to LSI which LSI is obligated by\nstatute, regulation, license or other agreement not to disclose or to only use for limited purposes.\nB.\nNonuse and Nondisclosure. I agree that during and after my employment with LSI, I will hold in the strictest\nconfidence, and take all reasonable precautions to prevent any unauthorized use or disclosure of Confidential Information, and I\nwill not (i) use the Confidential Information for any purpose whatsoever other than for the benefit of LSI in the course of my\nemployment, or (ii) disclose Confidential Information to any third party without the prior written authorization of my supervisor\nand in compliance with LSI policy regarding the transmittal of Confidential Information. Upon termination of my assignment, my\nemployment, or as requested by my supervisor, I will promptly return all materials containing Confidential Information and\ncopies thereof to LSI. If compelled to produce Confidential Information by applicable law, I shall provide prior written notice of\nat least seven business days to my supervisor. I agree that I obtain no license, copyright, title or any other ownership rights to any\nConfidential Information, and that as between LSI and me, LSI retains all Confidential Information as its sole property. I\nunderstand that my unauthorized use or disclosure of Confidential Information during my employment may lead to disciplinary\naction, up to and including immediate termination and legal action by LSI. I understand that my obligations under this section\nsurvive the termination of my employment.\nC. Notice of Immunity from Liability for Confidential Disclosure of a Trade Secret to the Government or in a Court Filing.\nNotwithstanding anything herein to the contrary, pursuant to the Federal Defend Trade Secrets Act of 2016, an individual may not\nbe held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made\n(i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for\nthe purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a\nlawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for\nreporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret\ninformation in the court proceeding if the individual files any document containing the trade secret under seal and does not\ndisclose the trade secret except pursuant to court order. Nothing herein is intended, or should be construed, to affect the\nimmunities created by the Defend Trade Secrets Act of 2016.\nD. Former Employer. I agree that I will not, during my employment with LSI, improperly use or disclose any proprietary\ninformation of any former or concurrent employer or other person or entity, and that I will not bring onto the premises of LSI any\nunpublished document or proprietary information belonging to any such employer, person or entity unless consented to in writing\nby such employer, person or entity. I also represent and warrant that I am not subject to any agreements with any third person or\nentity that would limit or affect my ability to work for and on behalf of LSI; provided, however, that if I am subject to such an\nagreement, then I will strictly abide by such agreement.\n3. NON-COMPETITION AND NON-SOLICITATION\nIn consideration for LSI’s agreement to employ and compensate me, and/or continue to employ and compensate me, and\nLSI’s granting of access to me to Confidential Information, and for other good and valuable consideration, the sufficiency of\nwhich I acknowledge, I agree as follows:\n2\nA. By virtue of my employment with LSI, I acquired Confidential Information, as defined by this Agreement, and but for\nmy association with LSI, I would not have had access to the Confidential Information. The Confidential Information allows for\nLSI to have a competitive advantage. I acknowledge that if I disclose or use the Confidential Information, I will cause irreparable\nharm to LSI.\nB. For purposes of this Agreement, the “Non-Compete and Non-Solicit Period” means a period of 12 months following the\ntermination of my employment with LSI.\nC. For purposes of this Agreement, “Competitor” means any person or entity with which LSI competes in the lighting and\nlighting controls industries (including but not limited to Acuity Brands, Eaton / Cooper Lighting, Hubbell Lighting, Philips\nLighting, Cree, General Electric, H.E . Williams, Legrand, Leviton and Lutron) or graphics or digital signage industries (including\nbut not limited to Federal Heath, YESCO, Blair, Everbrite, ICON, Vomeal, Miller Zell, Persona, Sign Resource, Stratacache,\nAVI, Whitlock, Diversified, Tech Innovations, CCS, HB Comm, Sicom and Four Winds) and each of their affiliates, subsidiaries\nand related businesses operating in such industries.\nD. For purposes of this Agreement, “Customer” means any person or entity with which LSI has an ongoing business\nrelationship or a prospective business relationship for the 12 months prior to the date of this Agreement, including vendors,\nrepresentatives or suppliers.\nE. For purposes of this Agreement, “Competitive Activity” means directly or indirectly, individually or in combination\nwith others, engaging in any one or more of the following acts:\n(i) accepting employment with a Competitor;\n(ii) calling on, contacting, communicating with, or soliciting any Customer for the purpose of inducing them to\ndivert their business to another entity or business;\n(iii) interfering with any contract or other agreement that LSI may now or hereafter have, including, that would or\ncould in any way be injurious or detrimental to LSI’s image, business relationships or its business; or\n(iv) encouraging or soliciting any of LSI’s employees or agents to terminate or modify their relationships with LSI\nor hiring or engaging such persons for any purpose whatsoever. I acknowledge that this covenant is necessary to enable\nLSI to maintain a stable workforce.\nF. I agree to refrain from directly or indirectly engaging in any Competitive Activity, including assisting another to engage\nin any Competitive Activity, at all times during my employment with LSI and during the Non-Compete and Non-Solicit Period.\n3\nG. Recognizing that irreparable injury will result to LSI, its business and property if I were to breach any of the foregoing\ncovenants or my obligations as set forth in this Agreement, I agree that in the event of any such breach or threatened breach, LSI\nis entitled, in addition to any other remedies and damages available, to an injunction to restrain the violation or continued\nviolation of this Agreement by me. In the event any provision, restriction or part of this section of the Agreement shall be\ninvalidated, the remainder thereof shall nevertheless continue to be valid and fully enforceable.\nH. I understand and agree that this agreement is in addition to and does not limit my obligations under any LSI policy, or\nany statute, regulation or common law, regarding the matters covered above. I understand that a breach or violation of this\nagreement could subject me to disciplinary action, including termination or legal action, or both. I further understand that nothing\nin this agreement prevents me from giving truthful testimony or otherwise complying with applicable legal requirements.\nI. In the event any provision, restriction or part of this section of the Agreement shall be invalidated, the remainder thereof\nshall nevertheless continue to be valid and fully enforceable, and in the event any claims of any invalidity or unenforceability\nshall be predicated upon the temporal and/or geographic area covered thereby, it is expressly agreed that such provision shall\nthereby be deemed modified to the maximum geographic area and the maximum temporal duration.\n4. INTELLECTUAL PROPERTY\nI acknowledge and agree that all plans, designs, processes, research and development, original works of authorship, product\nknow-how and show-how, methodologies, techniques, inventions, discoveries, improvements, modifications, derivative works,\ncomputer programs, computer hardware and software, including source code and object code, algorithms and any other\nintellectual property, whether or not subject to patent or copyright protection, relating to the LSI’s business are the sole and\nexclusive property of LSI (“LSI Intellectual Property”). I shall promptly disclose all LSI Intellectual Property that I make,\ncreate, author, originate, conceive, develop or reduce to practice, either alone or jointly with others, at any time during my\nemployment with LSI, which are within or in any way related to the existing or contemplated scope of LSI’s business (all of\nwhich LSI Intellectual Property shall be deemed made during the employment relationship if made or conceived within twelve\n(12) months following termination of my employment). I shall assign, without additional consideration, and hereby irrevocably\nassign to LSI any and all rights, title and interest that I may have or acquire in LSI Intellectual Property and all patents,\ncopyrights, trademarks and other rights associated therewith.\nI shall cooperate with and assist LSI, as is reasonably required, to protect its interests in LSI Intellectual Property, including\nbut not limited to executing and filing any document requested by the LSI if it deems necessary to apply for any patent, copyright,\ntrademark or other proprietary right in any and all countries, or to convey any rights, title or interest therein to any of its\nnominees, successors or assigns. Notwithstanding anything herein to the contrary, nothing is intended to assign any of my rights\ntitles or interests in or to any patents, copyrights or trademarks, or applications therefor that was developed entirely outside of the\nemployment relationship with LSI, unless the patents, copyrights or trademarks, or applications therefor, or any other intellectual\nproperty: (i) relates to the business of LSI or to LSI’s actual or demonstrably anticipated research and development; or (ii) results\nfrom any work performed by me for LSI.\n4\n5. RETURN OF LSI MATERIALS\nUpon separation from employment with LSI, on LSI’s earlier request during my employment, or at any time subsequent to\nmy employment upon demand from LSI, I will immediately deliver to LSI, and will not keep in my possession, recreate, or\ndeliver to anyone else, any and all LSI property, including, but not limited to, Confidential Information, all devices and\nequipment belonging to LSI (including computers, handheld electronic devices, telephone equipment, and other electronic\ndevices), all tangible embodiments of the Inventions, all electronically stored information and passwords to access such property,\nLSI credit cards, records, data, notes, notebooks, reports, files, proposals, lists, correspondence, specifications, drawings,\nblueprints, sketches, materials, photographs, charts, any other documents and property, and reproductions of any of the foregoing\nitems. I also consent to an exit interview to confirm my compliance with the terms of this Agreement.\n6. NOTIFICATION OF NEW EMPLOYER\nIn the event that I leave the employ of LSI, I hereby grant consent to notification by LSI to my new employer about my rights\nand obligations under this Agreement. I also agree to disclose the existence and terms of this Agreement to any subsequent\npotential employer or principal who competes in any way with LSI for business, customers and/or employees no later than\nfourteen (14) days prior to the commencement of employment with that employer.\n7. MISCELLANEOUS\nA. Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by the laws of the State of Ohio\nwithout regard to Ohio conflicts of law rules that may result in the application of the laws of any jurisdiction other than Ohio. To\nthe extent that any lawsuit is permitted under this Agreement, I hereby expressly consent to the personal and exclusive\njurisdiction and venue of the state and federal courts located in Hamilton County, Ohio for any lawsuit filed against me by LSI.\nB.\nAssignability. This Agreement will be binding upon my heirs, executors, assigns, administrators, and other legal\nrepresentatives, and will be for the benefit of LSI, its successors, and its assigns. There are no intended third-party beneficiaries to\nthis Agreement, except as may be expressly otherwise stated. Notwithstanding anything to the contrary herein, LSI may assign\nthis Agreement and its rights and obligations under this Agreement to any successor to all or substantially all of LSI’s relevant\nassets, whether by merger, consolidation, reorganization, reincorporation, conversion, sale of assets, sale of membership interests,\nstock or other equity interests, or otherwise.\nC. Entire Agreement. This Agreement sets forth the entire agreement and understanding between LSI and me with respect\nto the subject matter herein and supersedes all prior written and oral agreements, discussions, or representations between us,\nincluding, but not limited to, any representations made during my interview(s). I represent and warrant that I am not relying on\nany statement or representation not contained in this Agreement. Any subsequent change or changes in my duties, salary, or\ncompensation will not affect the validity or scope of this Agreement.\n5\nD. Headings. Headings are used in this Agreement for reference only and shall not be considered when interpreting this\nAgreement.\nE. Severability. If a court or other body of competent jurisdiction finds, or the Parties mutually believe, any provision of\nthis Agreement, or portion thereof, to be invalid or unenforceable, such provision will be enforced to the maximum extent\npermissible so as to affect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect.\nF. Modification, Waiver. No modification of or amendment to this Agreement, nor any waiver of any rights under this\nAgreement, will be effective unless in a writing signed by a manager or officer of LSI and me. Waiver by LSI of a particular\nbreach of any provision of this Agreement will not operate as a waiver of any other provision or subsequent breach.\nG. Survivorship. The rights and obligations of the parties to this Agreement will survive termination of my employment\nwith LSI.\n/s/ James A. Clark\nSignature\nJames A. Clark\nNovember 1, 2018\nLSI INDUSTRIES INC.\n/s/ Howard E. Japlon\nSignature\nHoward E. Japlon\nEVP, Human Resources & General Counsel\nNovember 1, 2018\n6
aea0ce61011e0ec2fbae5fb0b59d03a0.pdf	effective_date jurisdiction party term	14 ADDENDUM 7 NON-DISCLOSURE AGREEMENT This non-disclosure agreement (the "AGREEMENT") is\nentered into this 1ST DAY OF JUNE, 1996 by ACUMED, INC., (the\n"DISCLOSING PARTY") and O.J .I . SURGICAL, INC., its PRINCIPALS, MANAGEMENT and STAFF (the\n"RECEIVING PARTY") for the purpose of preventing the unauthorized disclosure of Confidential Information (as\ndefined below) of the Disclosing Party which may be disclosed to the Receiving Party for the purpose of pursuing the\nestablishment of a business relationship or negotiating any contract or agreement between the Disclosing Party and the\nReceiving Party. For purposes of the agreement, Confidential Information shall mean any and all information relating to\nAcumed Products and Pricing. In consideration of the Disclosing Party's disclosure of Confidential Information to the\nReceiving party, the Receiving Party hereby agrees as follows: 1. The Receiving party shall hold and maintain the\nConfidential Information in strictest confidence and in trust for the sole and exclusive benefit of the Disclosing party . 2.\nThe Receiving party shall not, without the prior written approval of the Disclosing Party, use for its own benefit, publish\nor otherwise disclose to others, or permit the use by others for their benefit or to the detriment of the Disclosing party,\nany of the Confidential Information. 3. The Receiving party shall carefully restrict access to the Confidential Information\nto those of its officers, directors and employees who clearly need such access in order to participate on the behalf of the\nReceiving Party in the analysis and negotiation of a business relationship or any contract or agreement, or the advisability\nthereof, with the Disclosing Party .The Receiving Party further warrants and represents that it will advise each of the\npersons to whom it provides access to any of the Confidential Information pursuant to the foregoing sentence that such\npersons are strictly prohibited from making use, publishing or otherwise disclosing to others or permitting others to use\nfor their benefit or to the detriment of the Disclosing Party, any of the Confidential Information. 4. The Receiving Party\nshall take actions necessary to protect the confidentiality of the Confidential Information except for its disclosure\npursuant to paragraph 3 above, and hereby indemnifies the Disclosing Party against any and all losses, damages, claims\nor expenses incurred or suffered by the Disclosing Party as a result of the Receiving Party's breach of this Agreement. 5.\nThis agreement shal1 continue in full force and effect indefinitely, except that the Receiving Party's obligations hereunder\nshal1 not extend to any of the Confidential Information which the Receiving Party can demonstrate was in the public\ndomain on the date of this Agreement. 6. The Receiving Party understands and acknowledges that any disclosure or\nmisappropriation of any of the Confidential Information in violation of this Agreement may cause the disclosing Party\nirreparable harm, the amount of which may be difficult to ascertain and, therefore, agrees that the Disclosing Party shall\nhave the right to apply to a court of competent jurisdiction for an order restraining any such further disclosure or\nmisappropriation and for such other relief as the Disclosing Party shall deem appropriate, such right of the Disclosing\nParty to be in addition to the remedies otherwise available to the Disclosing Party at law or in equity. 7. The Receiving\nparty shall return to the Disclosing party any and all records, notes and other written, printed or tangible materials\npertaining to the Confidential Information immediately upon written request of the Disclosing Party. 15 8. This\nAgreement and the Receiving Party's obligations hereunder shall be binding upon the representatives, assigns and\nsuccessors of the Receiving Party and shall inure to the benefit of the assigns and successors of the Disclosing Party. 9.\nThe Agreement shall be governed by and construed in accordance with internal laws of the State of Oregon. 10. If any\naction at law or inequity is brought to enforce or interpret the provisions of this Agreement, the prevailing party in such\naction shall be entitled to reasonable attorney's fees. 11. The Agreement constitutes the sole understanding of the parties\nwith respect to the subject matter hereof and may not be amended or modified except in writing signed by each of the\nparties hereto. IN WITNESS WHEREOF, THE PARTIES HERETO HAVE ENTERED INTO THIS AGREEMENT ON THE DATE SET\nFORTH ABOVE. Disclosing Party: Receiving Party: ACUMED, INC. O.J.I . SURGICAL, INC. By: Randall Huebner By: Harry\nKraus ------------------- --------------- /s/ RANDALL HUEBNER /S/ HARRY KRAUS ------------------- --------------- Signature\nSignature It: President Its: President ------------- -------------- Date: 4/28/97 Date: 4/21/97 ------------- -------------	14 ADDENDUM 7 NON-DISCLOSURE AGREEMENT This non-disclosure agreement (the "AGREEMENT") is\nentered into this 1ST DAY OF JUNE, 1996 by ACUMED, INC., (the\n"DISCLOSING PARTY") and O.J.I. SURGICAL, INC., its PRINCIPALS, MANAGEMENT and STAFF (the\n"RECEIVING PARTY") for the purpose of preventing the unauthorized disclosure of Confidential Information (as\ndefined below) of the Disclosing Party which may be disclosed to the Receiving Party for the purpose of pursuing the\nestablishment of a business relationship or negotiating any contract or agreement between the Disclosing Party and the\nReceiving Party. For purposes of the agreement, Confidential Information shall mean any and all information relating to\nAcumed Products and Pricing. In consideration of the Disclosing Party's disclosure of Confidential Information to the\nReceiving party, the Receiving Party hereby agrees as follows: 1. The Receiving party shall hold and maintain the\nConfidential Information in strictest confidence and in trust for the sole and exclusive benefit of the Disclosing party . 2.\nThe Receiving party shall not, without the prior written approval of the Disclosing Party, use for its own benefit, publish\nor otherwise disclose to others, or permit the use by others for their benefit or to the detriment of the Disclosing party,\nany of the Confidential Information. 3. The Receiving party shall carefully restrict access to the Confidential Information\nto those of its officers, directors and employees who clearly need such access in order to participate on the behalf of the\nReceiving Party in the analysis and negotiation of a business relationship or any contract or agreement, or the advisability\nthereof, with the Disclosing Party .The Receiving Party further warrants and represents that it will advise each of the\npersons to whom it provides access to any of the Confidential Information pursuant to the foregoing sentence that such\npersons are strictly prohibited from making use, publishing or otherwise disclosing to others or permitting others to use\nfor their benefit or to the detriment of the Disclosing Party, any of the Confidential Information. 4. The Receiving Party\nshall take actions necessary to protect the confidentiality of the Confidential Information except for its disclosure\npursuant to paragraph 3 above, and hereby indemnifies the Disclosing Party against any and all losses, damages, claims\nor expenses incurred or suffered by the Disclosing Party as a result of the Receiving Party's breach of this Agreement. 5.\nThis agreement shall continue in full force and effect indefinitely, except that the Receiving Party's obligations hereunder\nshall not extend to any of the Confidential Information which the Receiving Party can demonstrate was in the public\ndomain on the date of this Agreement. 6. The Receiving Party understands and acknowledges that any disclosure or\nmisappropriation of any of the Confidential Information in violation of this Agreement may cause the disclosing Party\nirreparable harm, the amount of which may be difficult to ascertain and, therefore, agrees that the Disclosing Party shall\nhave the right to apply to a court of competent jurisdiction for an order restraining any such further disclosure or\nmisappropriation and for such other relief as the Disclosing Party shall deem appropriate, such right of the Disclosing\nParty to be in addition to the remedies otherwise available to the Disclosing Party at law or in equity. 7. The Receiving\nparty shall return to the Disclosing party any and all records, notes and other written, printed or tangible materials\npertaining to the Confidential Information immediately upon written request of the Disclosing Party. 15 8. This\nAgreement and the Receiving Party's obligations hereunder shall be binding upon the representatives, assigns and\nsuccessors of the Receiving Party and shall inure to the benefit of the assigns and successors of the Disclosing Party. 9.\nThe Agreement shall be governed by and construed in accordance with internal laws of the State of Oregon. 10. If any\naction at law or inequity is brought to enforce or interpret the provisions of this Agreement, the prevailing party in such\naction shall be entitled to reasonable attorney's fees. 11. The Agreement constitutes the sole understanding of the parties\nwith respect to the subject matter hereof and may not be amended or modified except in writing signed by each of the\nparties hereto. IN WITNESS WHEREOF, THE PARTIES HERETO HAVE ENTERED INTO THIS AGREEMENT ON THE DATE SET\nFORTH ABOVE. Disclosing Party: Receiving Party: ACUMED, INC. O.J.I. SURGICAL, INC. By: Randall Huebner By: Harry\nKraus ------=-=-=s-m-emme comemeeeeeeeeee /s/ RANDALL HUEBNER /S/ HARRY KRAUS -----=======mmmmmmm —mommmeeeeeee Signature\nSignature It: President Its: President ------------- -------—-—--—- Date: 4/28/97 Date: 4/21/97 --------=-=-- ====--=----—-	14 ADDENDUM 7 NON-DISCLOSURE AGREEMENT This non-disclosure agreement (the "AGREEMENT")\nis\nentered into this 1ST DAY OF JUNE, 1996 by ACUMED, INC., (the\n"DISCLOSING PARTY") and O.J.I. SURGICAL, INC., its PRINCIPALS, MANAGEMENT and STAFF (the\n"RECEIVING PARTY") for the purpose of preventing the unauthorized disclosure of Confidential Information (as\ndefined below) of the Disclosing Party which may be disclosed to the Receiving Party for the purpose of pursuing\nthe\nestablishment of a business relationship or negotiating any contract or agreement between the Disclosing Party and the\nReceiving Party. For purposes of the agreement, Confidential Information shall mean any and all information relating to\nAcumed Products and Pricing. In consideration of the Disclosing Party's disclosure of Confidential Information to the\nReceiving party, the Receiving Party hereby agrees as follows: 1. The Receiving party shall hold and maintain the\nConfidential Information in strictest confidence and in trust for the sole and exclusive benefit of the Disclosing party\n2.\nThe Receiving party shall not, without the prior written approval of the Disclosing Party, use for its own benefit, publish\nor otherwise disclose to others, or permit the use by others for their benefit or to the detriment of the Disclosing party,\nany of the Confidential Information. 3. The Receiving party shall carefully restrict access to the Confidential Information\nto those of its officers, directors and employees who clearly need such access in order to participate on the behalf of the\nReceiving Party in the analysis and negotiation of a business relationship or any contract or agreement, or the advisability\nthereof,\nwith\nthe\nDisclosing\nParty\n.The\nReceiving\nParty\nfurther\nwarrants\nand\nrepresents\nthat\nit\nwill\nadvise\neach\nof\nthe\npersons to whom it provides access to any of the Confidential Information pursuant to the foregoing sentence that such\npersons are strictly prohibited from making use, publishing or otherwise disclosing to others or permitting others to use\nfor their benefit or to the detriment of the Disclosing Party, any of the Confidential Information. 4. The Receiving Party\nshall take actions necessary to protect the confidentiality of the Confidential Information except for its disclosure\npursuant to paragraph 3 above, and hereby indemnifies the Disclosing Party against any and all losses, damages, claims\nor expenses incurred or suffered by the Disclosing Party as a result of the Receiving Party's breach of this Agreement. 5.\nThis agreement shall continue in full force and effect indefinitely, except that the Receiving Party's obligations hereunder\nshal1 not extend to any of the Confidential Information which the Receiving Party can demonstrate was in the public\ndomain on the date of this Agreement. 6. The Receiving Party understands and acknowledges that any disclosure or\nmisappropriation of any of the Confidential Information in violation of this Agreement may cause the disclosing Party\nirreparable harm, the amount of which may be difficult to ascertain and, therefore, agrees that the Disclosing Party shall\nhave the right to apply to a court of competent jurisdiction for an order restraining any such further disclosure or\nmisappropriation and for such other relief as the Disclosing Party shall deem appropriate, such right of the Disclosing\nParty to be in addition to the remedies otherwise available to the Disclosing Party at law or in equity. 7. The Receiving\nparty shall return to the Disclosing party any and all records, notes and other written, printed or tangible materials\npertaining to the Confidential Information immediately upon written request of the Disclosing Party. 15 8. This\nAgreement and the Receiving Party's obligations hereunder shall be binding upon the representatives, assigns and\nsuccessors\nof\nthe\nReceiving\nParty\nand\nshall\ninure\nto\nthe\nbenefit\nof\nthe\nassigns\nand\nsuccessors\nof\nthe\nDisclosing\nParty\n9.\nThe Agreement shall be governed by and construed in accordance with internal laws of the State of Oregon. 10. If any\naction at law or inequity is brought to enforce or interpret the provisions of this Agreement, the prevailing party in such\naction shall be entitled to reasonable attorney's fees. 11. The Agreement constitutes the sole understanding of the parties\nwith respect to the subject matter hereof and may not be amended or modified except in writing signed by each of the\nparties hereto. IN WITNESS WHEREOF, THE PARTIES HERETO HAVE ENTERED INTO THIS AGREEMENT ON THE DATE SET\nFORTH ABOVE. Disclosing Party: Receiving Party: ACUMED, INC. O.J.I. SURGICAL, INC. By: Randall Huebner By: Harry\nKraus\n/s/ RANDALL HUEBNER /S/ HARRY KRAUS\nSignature\nSignature It: President Its: President\nDate: 4/28/97 Date: 4/21/97	14 ADDENDUM 7 NON-DISCLOSURE AGREEMENT This non-disclosure agreement (the "AGREEMENT") is\nentered into this 1ST DAY OF JUNE, 1996 by ACUMED, INC., (the\n"DISCLOSING PARTY") and O.J .I . SURGICAL, INC., its PRINCIPALS, MANAGEMENT and STAFF (the\n"RECEIVING PARTY") for the purpose of preventing the unauthorized disclosure of Confidential Information (as\ndefined below) of the Disclosing Party which may be disclosed to the Receiving Party for the purpose of pursuing the\nestablishment of a business relationship or negotiating any contract or agreement between the Disclosing Party and the\nReceiving Party. For purposes of the agreement, Confidential Information shall mean any and all information relating to\nAcumed Products and Pricing. In consideration of the Disclosing Party's disclosure of Confidential Information to the\nReceiving party, the Receiving Party hereby agrees as follows: 1. The Receiving party shall hold and maintain the\nConfidential Information in strictest confidence and in trust for the sole and exclusive benefit of the Disclosing party . 2.\nThe Receiving party shall not, without the prior written approval of the Disclosing Party, use for its own benefit, publish\nor otherwise disclose to others, or permit the use by others for their benefit or to the detriment of the Disclosing party,\nany of the Confidential Information. 3. The Receiving party shall carefully restrict access to the Confidential Information\nto those of its officers, directors and employees who clearly need such access in order to participate on the behalf of the\nReceiving Party in the analysis and negotiation of a business relationship or any contract or agreement, or the advisability\nthereof, with the Disclosing Party .The Receiving Party further warrants and represents that it will advise each of the\npersons to whom it provides access to any of the Confidential Information pursuant to the foregoing sentence that such\npersons are strictly prohibited from making use, publishing or otherwise disclosing to others or permitting others to use\nfor their benefit or to the detriment of the Disclosing Party, any of the Confidential Information. 4. The Receiving Party\nshall take actions necessary to protect the confidentiality of the Confidential Information except for its disclosure\npursuant to paragraph 3 above, and hereby indemnifies the Disclosing Party against any and all losses, damages, claims\nor expenses incurred or suffered by the Disclosing Party as a result of the Receiving Party's breach of this Agreement. 5.\nThis agreement shal1 continue in full force and effect indefinitely, except that the Receiving Party's obligations hereunder\nshal1 not extend to any of the Confidential Information which the Receiving Party can demonstrate was in the public\ndomain on the date of this Agreement. 6. The Receiving Party understands and acknowledges that any disclosure or\nmisappropriation of any of the Confidential Information in violation of this Agreement may cause the disclosing Party\nirreparable harm, the amount of which may be difficult to ascertain and, therefore, agrees that the Disclosing Party shall\nhave the right to apply to a court of competent jurisdiction for an order restraining any such further disclosure or\nmisappropriation and for such other relief as the Disclosing Party shall deem appropriate, such right of the Disclosing\nParty to be in addition to the remedies otherwise available to the Disclosing Party at law or in equity. 7. The Receiving\nparty shall return to the Disclosing party any and all records, notes and other written, printed or tangible materials\npertaining to the Confidential Information immediately upon written request of the Disclosing Party. 15 8. This\nAgreement and the Receiving Party's obligations hereunder shall be binding upon the representatives, assigns and\nsuccessors of the Receiving Party and shall inure to the benefit of the assigns and successors of the Disclosing Party. 9.\nThe Agreement shall be governed by and construed in accordance with internal laws of the State of Oregon. 10. If any\naction at law or inequity is brought to enforce or interpret the provisions of this Agreement, the prevailing party in such\naction shall be entitled to reasonable attorney's fees. 11. The Agreement constitutes the sole understanding of the parties\nwith respect to the subject matter hereof and may not be amended or modified except in writing signed by each of the\nparties hereto. IN WITNESS WHEREOF, THE PARTIES HERETO HAVE ENTERED INTO THIS AGREEMENT ON THE DATE SET\nFORTH ABOVE. Disclosing Party: Receiving Party: ACUMED, INC. O.J.I . SURGICAL, INC. By: Randall Huebner By: Harry\nKraus ------------------- --------------- /s/ RANDALL HUEBNER /S/ HARRY KRAUS ------------------- --------------- Signature\nSignature It: President Its: President ------------- -------------- Date: 4/28/97 Date: 4/21/97 ------------- -------------
af782a84af12408eee79b42ca3d9a416.pdf	effective_date jurisdiction party	CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nTHIS CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT (this “Agreement”) is made effective as of July 15, 2014,\n(and subject to the occurrence of the Merger, as defined below) by and between Realogy Group LLC (together with its parents,\naffiliates, subsidiaries, divisions, successors and assigns (hereinafter collectively referred to as the “Company”), with offices at 175\nPark Avenue, Madison, New Jersey and Charles C. Baker, a prospective employee of the Company (hereinafter “Employee”).\nWHEREAS, the Company is a global provider of real estate and relocation services company serving real estate companies,\ncorporations and financial institutions in support of residential and commercial real estate transactions. The Company employs people\nprimarily to engage in the marketing, sale and support of franchise license agreements.\nWHEREAS, by offer letter of July 15, 2014 herewith the Company has offered employment to Employee, subject to the\nconsummation of the acquisition of ZipRealty Inc. by a subsidiary of Realogy Group LLC (the “Merger”) pursuant to the Agreement\nand Plan of Merger dated as of July 15, 2014 by and among ZipRealty, Inc., Realogy Group LLC and Honeycomb Acquisition, Inc.;\nand\nWHEREAS, in connection with work performed by Employee on behalf of the Company, it may be necessary for the Company\nand/or its clients and customers (collectively, the “Company”) to disclose to Employee certain documentation and information which\nthe Company considers proprietary and confidential, including but not limited to: franchise sales training, market research, customer\nor prospect correspondence whether on paper or in electronic or other form, broker business plans, Company business and strategic\nplans, financial data, regional sales plans, personal broker information, franchise acquisition strategies or candidates, contract or\nlicense expiration dates, renewal targets or candidates, operating procedures, potential franchise candidates, terms of any financing\nmade available generally to franchise candidates or to specific candidates, and any other business terms of any potential franchise,\nfranchise offerings, reports, manuals, contracts, current and prospective client and supplier lists, and all other documentation,\nbusiness knowledge, data, material, property and developments related to the Company, regardless of whether possessed or\ndeveloped by you in the course of your employment or obtained from a customer, prospect, supplier, or employee whether or not\ndesignated as confidential or proprietary by the Company (hereinafter “Confidential Information”); and\nWHEREAS, both parties understand the desire that such documentation and information be maintained in confidence, that it shall be\nused only for the Company’s business purposes and shall not be used in any way in competition with the Company’s business\npurposes, and that any disclosure or competing use thereof would cause irreparable harm to the Company; and\nNOW, THEREFORE, in consideration of the foregoing, including, but not limited to, the Company’s employment of Employee, and\nfor other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and\nEmployee hereby covenant and agree as follows:\n1. In addition to the Confidential Information identified above, the Company may from time to time furnish to Employee financial,\ntechnical, legal, marketing, or other proprietary or confidential reports, analyses, records, pricing information, data, computer\nprograms, systems or output, information, or other material relating to the Company and/or work done for its clients and customers,\nin oral, written or other format, developed by the Company and/or others, which the Company deems and Employee should consider\nproprietary and confidential to, and of independent economic value to, the Company, actual or potential, regardless whether\notherwise protectable under any law, and regardless of protections, lack of markings or dissemination (collectively, the “Company\nConfidential Information”).\n2. Employee agrees that, during the term of Employee’s employment with the Company and thereafter, all Company Confidential\nInformation shall be treated as proprietary and confidential to the Company. Furthermore, Employee agrees that, except in\nfurtherance of the Company’s business, Employee will not disclose or permit disclosure of such Company Confidential Information\nto any third party unless\nand until Employee has obtained the prior written consent of the Company (which may be conditioned upon such third party’s\nexecution of an agreement similar to this one as well as other factors). Without limitation to Employee’s obligations, Employee\nagrees to safeguard all Company Confidential Information in accordance with the Realogy Information Management Policy, as well\nas the applicable information management and protection provisions of the Code of Ethics and Key Polices. As a condition to such\nCompany Confidential Information being furnished to Employee, during the term of Employee’s employment with the Company and\nthereafter, Employee agrees to treat any Company Confidential Information concerning the Company (whether prepared by the\nCompany, its advisors or otherwise, irrespective of the form of communication) which is furnished to Employee in accordance with\nthe provisions of this Agreement and to take or abstain from taking certain other actions hereinafter set forth. Employee further\nagrees that no such Company Confidential Information will be knowingly or negligently misappropriated or used by Employee for\nhis/her own benefit or for the benefit of others except upon the written agreement of the Company and Employee as to the use of such\nCompany Confidential Information. In no event will Employee knowingly or willfully permit Company Confidential Information to\nbe used by any person in competition with or to the detriment of the Company. In addition to the foregoing, in the event that the\nCompany Confidential Information contains any personally identifiable information of the Company’s (and/or its affiliated entities’)\nemployees, clients or customers, Employee agrees to comply at all times with, and maintain and safeguard such information in\naccordance with, (i) the Company’s (and/or its affiliated entities’) then-current privacy policies and procedures, and (ii) any and all\napplicable privacy laws, regulations, statutes, and guidelines.\n3. Employee agrees to assist the Company in obtaining, securing, maintaining, preserving any protections and patents, copyrights,\ntrademarks or design right in and to Company Confidential Information or other information or data that Employee has accessed\nduring employment with the Company, even where such information or data was created, conceived, or designed by Employee solely\nor jointly with other employees of the Company. It is further understood and agreed that all written documentation and all work done\nor prepared by Employee during his employment (the “Works”) with the Company shall be deemed as “work made for hire” for the\nCompany under the United States Copyright Laws (17 U.S.C . Section 101, and any amendments thereto) and ownership of all such\nWorks shall be held at all time by the Company. If for any reason the Works are held not to be “work made for hire,” Employee\nhereby assigns all its right, title and interest in and to the Works to the Company.\n4. All Company Confidential Information transmitted or disclosed hereunder will be and remain the property of the Company and the\nCompany may notify Employee in writing that all such Company Confidential Information and any copies thereof shall be returned\nto the Company. Promptly upon request from the Company, Employee shall redeliver to the Company all tangible Company\nConfidential Information, and any other tangible material containing, prepared on the basis of, or reflecting any information in the\nCompany Confidential Information, (whether prepared by the parties, their advisors or otherwise), including all reports, analyses,\ncompilations, studies and other materials containing or based on the Company Confidential Information, or reflecting the review of,\nor interest in, the Company’s business, and will not retain any copies, extracts or other reproductions in whole or in part of such\nCompany Confidential Information.\n5. In acknowledging the unique and proprietary nature of the Company Confidential Information, the parties further understand and\nagree that money damages may not be a sufficient remedy for any breach of this Agreement by Employee and that the Company may\nsuffer great and irreparable injury as a consequence of such breach; therefore, the Company shall be entitled to seek equitable relief,\nincluding injunction and specific performance as a remedy for such breach. The Company may seek a court order or injunction\nwithout further notice to protect the confidentiality of its information and to halt any unauthorized disclosure thereof. Such remedies\nshall not be deemed to be exclusive remedies for a breach by Employee but shall be in addition to all other remedies provided\nhereunder or available at law or equity to the Company.\n6. If Employee is served with a subpoena or other process requiring the production or disclosure of Company Confidential\nInformation, then the Employee, before complying with such subpoena or other process, shall immediately notify the Company of\nsame and permit the Company a reasonable period of time to intervene and contest disclosure or production. Employee will cooperate\nin seeking, performing and enforcing a protective order for the Company Confidential Information.\n7. The Employee may not assign or otherwise transfer any of his rights or obligations under this Agreement to any third party without\nthe prior written consent of the Company. No permitted assignment shall relieve the Employee of his obligations hereunder with\nrespect to Company Confidential Information disclosed prior to the assignment. Any assignment in violation of this Section shall be\nnull and void.\n8. THIS AGREEMENT DOES NOT MODIFY OR ALTER, IN ANY WAY THE AT-WILL NATURE OF EMPLOYEE’S\nEMPLOYMENT. EMPLOYEE’S EMPLOYMENT IS AT-WILL, WHICH MEANS THAT EITHER EMPLOYEE OR\nCOMPANY CAN TERMINATE THE EMPLOYMENT RELATIONSHIP AT ANY TIME, FOR ANY LAWFUL REASON,\nWITH OR WITHOUT NOTICE. THE AT-WILL NATURE OF SUCH EMPLOYMENT CAN ONLY BE MODIFIED BY A\nWRITING SIGNED BY THE COMPANY’S PRESIDENT OR GENERAL COUNSEL.\n9. With the exception of the letter from the Company offering employment to the Employee which is being presented to Employee on\ngiven date, this Agreement constitutes the entire agreement and understanding of the parties on the subject matter hereof and\nsupersedes all prior communications, agreements, and understandings, whether written or oral, relating thereto. This Agreement may\nbe modified only by further written agreement signed by each of the parties hereto. This Agreement will be governed in all respects\nby the laws of the State of New Jersey.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date indicated above.\nREALOGY GROUP LLC\nEMPLOYEE\nBy:\n/s/ David J. Weaving\nBy:/s/ Charles C. Baker\nName:\nDavid J. Weaving\nName:\nCharles C. Baker\nTitle:\nEVP/CAO\nTitle:15 July 2014	CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nTHIS CONFIDENTIALITY AND NONDISCLO SURE AGREEMENT (this ”A greement”) is made effective as ofJuly 15, 2014,\n(and subject to the occurrence of the Merger, as defined below) by and between Realogy Group LLC (together with its parents,\naffiliates, subsidiaries, divisions, successors and assigns (hereinafter collectively referred to as the ”Company”), with offices at 175\nPark Avenue, Madison, New Jersey and Charles C. Baker, a prospective employee of the Company (hereinafter ”Employee”).\nWHEREAS, the Company is a global provider of real estate and relocation services company serving real estate companies,\ncorporations and financial institutions in support of residential and commercial real estate transactions. The Company employs people\nprimarily to engage in the marketing, sale and support of franchise license agreements.\nWHEREAS, by offer letter of July 15, 2014 herewith the Company has offered employment to Employee, subject to the\nconsummation of the acquisition of ZipRealty Inc. by a subsidiary of Realogy Group LLC (the ”Merger”) pursuant to the Agreement\nand Plan of Merger dated as of July 15, 2014 by and among ZipRealty, Inc., Realogy Group LLC and Honeycomb Acquisition, Inc.;\nand\nWHEREA S, in connection with work performed by Employee on behalf of the Company, it may be necessary for the Company\nand/or its clients and customers (collectively, the ”Company") to disclose to Employee certain documentation and information which\nthe Company considers proprietary and confidential, including but not limited to: franchise sales training, market research, customer\nor prospect correspondence whether on paper or in electronic or other form, broker business plans, Company business and strategic\nplans, financial data, regional sales plans, personal broker information, franchise acquisition strategies or candidates, contract or\nlicense expiration dates, renewal targets or candidates, operating procedures, potential franchise candidates, terms of any financing\nmade available generally to franchise candidates or to specific candidates, and any other business terms of any potential franchise,\nfranchise offerings, reports, manuals, contracts, current and prospective client and supplier lists, and all other documentation,\nbusiness knowledge, data, material, property and developments related to the Company, regardless of whether possessed or\ndeveloped by you in the course of your employment or obtained from a customer, prospect, supplier, or employee whether or not\ndesignated as confidential or proprietary by the Company (hereinafter ”Confidential Information”); and\nWHEREA S, both parties understand the desire that such documentation and information be maintained in confidence, that it shall be\nused only for the Company' s business purposes and shall not be used in any way in competition with the Company' s business\npurposes, and that any disclosure or competing use thereof would cause irreparable harm to the Company; and\nNOW, THEREFORE, in consideration of the foregoing, including, but not limited to, the Company' s employment of Employee, and\nfor other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and\nEmployee hereby covenant and agree as follows:\n1. In addition to the Confidential Information identified above, the Company may from time to time furnish to Employee financial,\ntechnical, legal, marketing, or other proprietary or confidential reports, analyses, records, pricing information, data, computer\nprograms, systems or output, information, or other material relating to the Company and/or work done for its clients and customers,\nin oral, written or other format, developed by the Company and/or others, which the Company deems and Employee should consider\nproprietary and confidential to, and of independent economic value to, the Company, actual or potential, regardless whether\notherwise protectable under any law, and regardless of protections, lack of markings or dissemination (collectively, the ”Company\nConfidential Information”).\n2. Employee agrees that, during the term of Employee' s employment with the Company and thereafter, all Company Confidential\nInformation shall be treated as proprietary and confidential to the Company. Furthermore, Employee agrees that, except in\nfurtherance of the Company' s business, Employee will not disclose or permit disclosure of such Company Confidential Information\nto any third party unless\n \nand until Employee has obtained the prior written consent of the Company (which may be conditioned upon such third party’ s\nexecution of an agreement similar to this one as well as other factors). Without limitation to Employee' s obligations, Employee\nagrees to safeguard all Company Confidential Information in accordance with the Realogy Information Management Policy, as well\nas the applicable information management and protection provisions of the Code of Ethics and Key Polices. As a condition to such\nCompany Confidential Information being furnished to Employee, during the term of Employee' s employment with the Company and\nthereafter, Employee agrees to treat any Company Confidential Information concerning the Company (whether prepared by the\nCompany, its advisors or otherwise, irrespective of the form of communication) which is furnished to Employee in accordance with\nthe provisions of this Agreement and to take or abstain from taking certain other actions hereinafter set forth. Employee further\nagrees that no such Company Confidential Information will be knowingly or negligently misappropriated or used by Employee for\nhis/her own benefit or for the benefit of others except upon the written agreement of the Company and Employee as to the use of such\nCompany Confidential Information. In no event will Employee knowingly or willfully permit Company Confidential Information to\nbe used by any person in competition with or to the detriment of the Company. In addition to the foregoing, in the event that the\nCompany Confidential Information contains any personally identifiable information of the Company's (and/or its affiliated entities’)\nemployees, clients or customers, Employee agrees to comply at all times with, and maintain and safeguard such information in\naccordance with, (i) the Company's (and/or its affiliated entities') then- current privacy policies and procedures, and (ii) any and all\napplicable privacy laws, regulations, statutes, and guidelines.\n3. Employee agrees to assist the Company in obtaining, securing, maintaining, preserving any protections and patents, copyrights,\ntrademarks or design right in and to Company Confidential Information or other information or data that Employee has accessed\nduring employment with the Company, even where such information or data was created, conceived, or designed by Employee solely\nor jointly with other employees of the Company. It is further understood and agreed that all written documentation and all work done\nor prepared by Employee during his employment (the ”W orks") with the Company shall be deemed as ”work made for hire" for the\nCompany under the United States Copyright Laws (17 U.S.C. Section 101, and any amendments thereto) and ownership of all such\nWorks shall be held at all time by the Company. If for any reason the Works are held not to be ”work made for hire, ” Employee\nhereby assigns all its right, title and interest in and to the Works to the Company.\n4. All Company Confidential Information transmitted or disclosed hereunder will be and remain the property of the Company and the\nCompany may notify Employee in writing that all such Company Confidential Information and any copies thereof shall be returned\nto the Company. Promptly upon request from the Company, Employee shall redeliver to the Company all tangible Company\nConfidential Information, and any other tangible material containing, prepared on the basis of, or reflecting any information in the\nCompany Confidential Information, (whether prepared by the parties, their advisors or otherwise), including all reports, analyses,\ncompilations, studies and other materials containing or based on the Company Confidential Information, or reflecting the review of,\nor interest in, the Company's business, and will not retain any copies, extracts or other reproductions in whole or in part of such\nCompany Confidential Information.\n5. In acknowledging the unique and proprietary nature of the Company Confidential Information, the parties further understand and\nagree that money damages may not be a sufficient remedy for any breach of this Agreement by Employee and that the Company may\nsuffer great and irreparable injury as a consequence of such breach; therefore, the Company shall be entitled to seek equitable relief,\nincluding injunction and specific performance as a remedy for such breach. The Company may seek a court order or injunction\nwithout further notice to protect the confidentiality of its information and to halt any unauthorized disclosure thereof. Such remedies\nshall not be deemed to be exclusive remedies for a breach by Employee but shall be in addition to all other remedies provided\nhereunder or available at law or equity to the Company.\n \n6. If Employee is served with a subpoena or other process requiring the production or disclosure of Company Confidential\nInformation, then the Employee, before complying with such subpoena or other process, shall immediately notify the Company of\nsame and permit the Company a reasonable period of time to intervene and contest disclosure or production. Employee will cooperate\nin seeking, performing and enforcing a protective order for the Company Confidential Information.\n7. The Employee may not assign or otherwise transfer any of his rights or obligations under this Agreement to any third party without\nthe prior written consent of the Company. No permitted assignment shall relieve the Employee of his obligations hereunder with\nrespect to Company Confidential Information disclosed prior to the assignment. Any assignment in violation of this Section shall be\nnull and void.\n8. THIS AGREEMENT DOES NOT MODIFY OR ALTER, IN ANY WAY THE AT-WILL NATURE OF EMPLOYEE’S\nEMPLOYMENT. EMPLOYEE’S EMPLOYMENT IS AT-WILL, WHICH MEANS THAT EITHER EMPLOYEE OR\nCOMPANY CAN TERMINATE THE EMPLOYMENT RELATIONSHIP AT ANY TIME, FOR ANY LAWFUL REASON,\nWITH OR WITHOUT NOTICE. THE AT-WILL NATURE OF SUCH EMPLOYMENT CAN ONLY BE MODIFIED BY A\nWRITING SIGNED BY THE COMPANY’S PRESIDENT OR GENERAL COUNSEL.\n9. With the exception of the letter from the Company offering employment to the Employee which is being presented to Employee on\ngiven date, this Agreement constitutes the entire agreement and understanding of the parties on the subject matter hereof and\nsupersedes all prior communications, agreements, and understandings, whether written or oral, relating thereto. This A greement may\nbe modified only by further written agreement signed by each of the parties hereto. This Agreement will be governed in all respects\nby the laws of the State of NewJersey.\nIN WITNESS WHEREOE, the parties hereto have executed this Agreement effective as of the date indicated above.\nREALOGY GROUP LLC EMPLOYEE\nBy: /s/ DavidJ. Weaving By:/s/ Charles C. Baker\nName: av1 . eav1ng NarEéIar es C. Baker\nTitle: EVP/CAO Titlé5July 2014	CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nTHIS CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT (this "Agreement") is made effective as of July 15, 2014,\n(and subject to the occurrence of the Merger, as defined below) by and between Realogy Group LLC (together with its parents,\naffiliates, subsidiaries, divisions, successors and assigns (hereinafter collectively referred to as the "Company"), with offices at 175\nPark venue, Madison, New Jersey and Charles C. Baker, a prospective employee of the Company (hereinafter "Employee").\nWHEREAS, the Company is a global provider of real estate and relocation services company serving real estate companies,\ncorporations and financial institutions in support of residential and commercial real estate transactions The Company employs people\nprimarily to engage in the marketing, sale and support of franchise license agreements.\nWHEREAS, by offer letter of July 15, 2014 herewith the Company has offered employment to Employee, subject to the\nconsummation of the acquisition of ZipRealty Inc. by a subsidiary of Realogy Group LLC (the "Merger") pursuant to the greement\nand Plan of Merger dated as of July 15, 2014 by and among ZipRealty, Inc., Realogy Group LLC and Honeycomb A cquisition, Inc.;\nand\nWHEREAS, in connection with work performed by Employee on behalf of the Company, it may be necessary for the Company\nand/or its clients and customers (collectively, the "Company") to disclose to Employee certain documentation and information which\nthe Company considers proprietary and confidential, including but not limited to: franchise sales training, market research, customer\nor prospect correspondence whether on paper or in electronic or other form, broker business plans, Company business and strategic\nplans, financial data, regional sales plans, personal broker information, franchise acquisition strategies or candidates, contract or\nlicense expiration dates, renewal targets or candidates, operating procedures, potential franchise candidates, terms of any financing\nmade available generally to franchise candidates or to specific candidates, and any other business terms of any potential franchise,\nfranchise offerings, reports, manuals, contracts, current and prospective client and supplier lists, and all other documentation,\nbusiness knowledge, data, material, property and developments related to the Company, regardless of whether possessed or\ndeveloped by you in the course of your employment or obtained from a customer, prospect, supplier, or employee whether or not\ndesignated as confidential or proprietary by the Company (hereinafter "Confidential Information"); and\nWHEREAS, both parties understand the desire that such documentation and information be maintained in confidence, that it shall be\nused only for the Company's business purposes and shall not be used in any way in competition with the Company's business\npurposes, and that any disclosure or competing use thereof would cause irreparable harm to the Company; and\nNOW, THEREFORE, in consideration of the foregoing, including, but not limited to, the Company's employment of Employee, and\nfor other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and\nEmployee hereby covenant and agree as follows:\n1. In addition to the Confidential Information identified above, the Company may from time to time furnish to Employee financial,\ntechnical, legal, marketing, or other proprietary or confidential reports, analyses, records, pricing inforation, data, computer\nprograms, systems or output, information, or other material relating to the Company and/or work done for its clients and customers,\nin oral, written or other format, developed by the Company and/or others, which the Company deems and Employee should consider\nproprietary and confidential to, and of independent economic value to, the Company, actual or potential, regardless whether\notherwise protectable under any law, and regardless of protections, lack of markings or dissemination (collectively, the "Company\nConfidential Information").\n2. Employee agrees that, during the term of Employee's employment with the Company and thereafter, all Company Confidential\nInformation shall be treated as proprietary and confidential to the Company. Furthermore, Employee agrees that except in\nfurtherance of the Company's business, Employee will not disclose or permit disclosure of such Company Confidential Information\nto any third party unless\nand until Employee has obtained the prior written consent of the Company (which may be conditioned upon such third party's\nexecution of an agreement similar to this one as well as other factors). Without limitation to Employee's obligations, Employee\nagrees to safeguard all Company Confidential Information in accordance with the Realogy Information Management Policy, as well\nas the applicable information management and protection provisions of the Code of Ethics and Key Polices. As a condition to such\nCompany Confidential Information being furnished to Employee, during the term of Employee's employment with the Company and\nthereafter, Employee agrees to treat any Company Confidential Information concerning the Company (whether prepared by the\nCompany, its advisors or otherwise, irrespective of the form of communication) which is furnished to Employee in accordance with\nthe provisions of this A greement and to take or abstain from taking certain other actions hereinafter set forth. Employee further\nagrees that no such Company Confidential Information will be knowingly or negligently misappropriated or used by Employee for\nhis/her own benefit or for the benefit of others except upon the written agreement of the Company and Employee as to the use of such\nCompany Confidential Information In no event will Employee knowingly or willfully permit Company Confidential Information to\nbe used by any person in competition with or to the detriment of the Company. In addition to the foregoing, in the event that the\nCompany Confidential Information contains any personally identifiable information of the Company's (and/or its affiliated entities')\nemployees, clients or customers, Employee agrees to comply at all times with, and maintain and safeguard such information in\naccordance with, (i) the Company's (and/or its affiliated entities') then-current privacy policies and procedures, and (ii) any and all\napplicable privacy laws, regulations, statutes, and guidelines.\n3. Employee agrees to assist the Company in obtaining, securing, maintaining, preserving any protections and patents, copyrights,\ntrademarks or design right in and to Company Confidential Information or other information or data that Employee has accessed\nduring employment with the Company, even where such information or data was created, conceived, or designed by Employee solely\nor jointly with other employees of the Company It is further understood and agreed that all written documentation and all work done\nor prepared by Employee during his employment (the "Works") with the Company shall be deemed as "work made for hire" for the\nCompany under the United States Copyright Laws (17 U.S.C. Section 101, and any amendments thereto) and ownership of all such\nWorks shall be held at all time by the Company. If for any reason the Works are held not to be "work made for hire," Employee\nhereby assigns all its right, title and interest in and to the Works to the Company.\n4. All Company Confidential Information transmitted or disclosed hereunder will be and remain the property of the Company and the\nCompany may notify Employee in writing that all such Company Confidential Information and any copies thereof shall be returned\nto the Company. Promptly upon request from the Company, Employee shall redeliver to the Company all tangible Company\nConfidential Information, and any other tangible material containing, prepared on the basis of, or reflecting any information in the\nCompany Confidential Information, (whether prepared by the parties, their advisors or otherwise), including all reports, analyses,\ncompilations, studies and other materials containing or based on the Company Confidential Information, or reflecting the review\nof,\nor interest in, the Company's business, and will not retain any copies, extracts or other reproductions in whole or in part of such\nCompany Confidential Information.\n5. In acknowledging the unique and proprietary nature of the Company Confidentia Information, the parties further understand\nand\nagree that money damages may not be a sufficient remedy for any breach of this A greement by Employee and that the Company may\nsuffer great and irreparable injury as a consequence of such breach; therefore, the Company shall be entitled to seek equitable relief,\nincluding injunction and specific performance as a remedy for such breach. The Company may seek a court order or injunction\nwithout further notice to protect the confidentiality of its information and to halt any unauthorized disclosure thereof. Such remedies\nshall not be deemed to be exclusive remedies for a breach by Employee but shall be in addition to all other remedies provided\nhereunder or available at law or equity to the Company.\n6. If Employee is served with a subpoena or other process requiring the production or disclosure of Company Confidential\nInformation, then the Employee, before complying with such subpoena or other process, shall immediately notify the Company of\nsame and permit the Company a reasonable period of time to intervene and contest disclosure or production Employee will cooperate\nin seeking, performing and enforcing a protective order for the Company Confidential Information.\n7. The Employee may not assign or otherwise transfer any of his rights or obligations under this A greement to any third party without\nthe prior written consent of the Company. No permitted assignment shall relieve the Employee of his obligations hereunder with\nrespect to Company Confidential Information disclosed prior to the assignment. Any assignment in violation of this Section shall be\nnull and void.\n8. THIS AGREEMENT DOES NOT MODIFY OR ALTER, IN ANY WAY THE AT-WILL NATURE OF EMPLOYEE'S\nEMPLOYMENT. EMPLOYEE'S EMPLOYM MENT IS AT-WILL, WHICH MEANS THAT EITHER EMPLOYEE OR\nCOMPANY CAN TERMINATE THE EMPLOYMENT RELATIONSHIP AT ANY TIME, FOR ANY LAWFUL REASON,\nWITH OR WITHOUT NOTICE. THE AT-WILL NATURE OF SUCH EMPLOYMENT CAN ONLY BE MODIFIED BY A\nWRITING SIGNED BY THE COMPANY'S PRESIDENT OR GENERAL COUNSEL.\n9. With the exception of the letter from the Company offering employment to the Employee which is being presented to Employee on\ngiven date, this A greement constitutes the entire agreement and understanding of the parties on the subject matter hereof and\nsupersedes all prior communications, agreements, and understandings, whether written or oral, relating thereto. This A greement may\nbe modified only by further written agreement signed by each of the parties hereto. This A greement will be governed in all respects\nby the laws of the State of New Jersey.\nIN WITNESS WHEREOF, the parties hereto have executed this A greement effective as of the date indicated above.\nREALOGY GROUP LLC\nEMPLOYEE\nBy:\n/s/ David J. Weaving\nBy:/s/ Charles C. Baker\nName:\nDavidj. Weaving\nNarbearles C. Baker\nTitle:\nEVP/CAO\nTitle5 July 2014	CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nTHIS CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT (this “Agreement”) is made effective as of July 15, 2014,\n(and subject to the occurrence of the Merger, as defined below) by and between Realogy Group LLC (together with its parents,\naffiliates, subsidiaries, divisions, successors and assigns (hereinafter collectively referred to as the “Company”), with offices at 175\nPark Avenue, Madison, New Jersey and Charles C. Baker, a prospective employee of the Company (hereinafter “Employee”).\nWHEREAS, the Company is a global provider of real estate and relocation services company serving real estate companies,\ncorporations and financial institutions in support of residential and commercial real estate transactions. The Company employs people\nprimarily to engage in the marketing, sale and support of franchise license agreements.\nWHEREAS, by offer letter of July 15, 2014 herewith the Company has offered employment to Employee, subject to the\nconsummation of the acquisition of ZipRealty Inc. by a subsidiary of Realogy Group LLC (the “Merger”) pursuant to the Agreement\nand Plan of Merger dated as of July 15, 2014 by and among ZipRealty, Inc., Realogy Group LLC and Honeycomb Acquisition, Inc.;\nand\nWHEREAS, in connection with work performed by Employee on behalf of the Company, it may be necessary for the Company\nand/or its clients and customers (collectively, the “Company”) to disclose to Employee certain documentation and information which\nthe Company considers proprietary and confidential, including but not limited to: franchise sales training, market research, customer\nor prospect correspondence whether on paper or in electronic or other form, broker business plans, Company business and strategic\nplans, financial data, regional sales plans, personal broker information, franchise acquisition strategies or candidates, contract or\nlicense expiration dates, renewal targets or candidates, operating procedures, potential franchise candidates, terms of any financing\nmade available generally to franchise candidates or to specific candidates, and any other business terms of any potential franchise,\nfranchise offerings, reports, manuals, contracts, current and prospective client and supplier lists, and all other documentation,\nbusiness knowledge, data, material, property and developments related to the Company, regardless of whether possessed or\ndeveloped by you in the course of your employment or obtained from a customer, prospect, supplier, or employee whether or not\ndesignated as confidential or proprietary by the Company (hereinafter “Confidential Information”); and\nWHEREAS, both parties understand the desire that such documentation and information be maintained in confidence, that it shall be\nused only for the Company’s business purposes and shall not be used in any way in competition with the Company’s business\npurposes, and that any disclosure or competing use thereof would cause irreparable harm to the Company; and\nNOW, THEREFORE, in consideration of the foregoing, including, but not limited to, the Company’s employment of Employee, and\nfor other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and\nEmployee hereby covenant and agree as follows:\n1. In addition to the Confidential Information identified above, the Company may from time to time furnish to Employee financial,\ntechnical, legal, marketing, or other proprietary or confidential reports, analyses, records, pricing information, data, computer\nprograms, systems or output, information, or other material relating to the Company and/or work done for its clients and customers,\nin oral, written or other format, developed by the Company and/or others, which the Company deems and Employee should consider\nproprietary and confidential to, and of independent economic value to, the Company, actual or potential, regardless whether\notherwise protectable under any law, and regardless of protections, lack of markings or dissemination (collectively, the “Company\nConfidential Information”).\n2. Employee agrees that, during the term of Employee’s employment with the Company and thereafter, all Company Confidential\nInformation shall be treated as proprietary and confidential to the Company. Furthermore, Employee agrees that, except in\nfurtherance of the Company’s business, Employee will not disclose or permit disclosure of such Company Confidential Information\nto any third party unless\nand until Employee has obtained the prior written consent of the Company (which may be conditioned upon such third party’s\nexecution of an agreement similar to this one as well as other factors). Without limitation to Employee’s obligations, Employee\nagrees to safeguard all Company Confidential Information in accordance with the Realogy Information Management Policy, as well\nas the applicable information management and protection provisions of the Code of Ethics and Key Polices. As a condition to such\nCompany Confidential Information being furnished to Employee, during the term of Employee’s employment with the Company and\nthereafter, Employee agrees to treat any Company Confidential Information concerning the Company (whether prepared by the\nCompany, its advisors or otherwise, irrespective of the form of communication) which is furnished to Employee in accordance with\nthe provisions of this Agreement and to take or abstain from taking certain other actions hereinafter set forth. Employee further\nagrees that no such Company Confidential Information will be knowingly or negligently misappropriated or used by Employee for\nhis/her own benefit or for the benefit of others except upon the written agreement of the Company and Employee as to the use of such\nCompany Confidential Information. In no event will Employee knowingly or willfully permit Company Confidential Information to\nbe used by any person in competition with or to the detriment of the Company. In addition to the foregoing, in the event that the\nCompany Confidential Information contains any personally identifiable information of the Company’s (and/or its affiliated entities’)\nemployees, clients or customers, Employee agrees to comply at all times with, and maintain and safeguard such information in\naccordance with, (i) the Company’s (and/or its affiliated entities’) then-current privacy policies and procedures, and (ii) any and all\napplicable privacy laws, regulations, statutes, and guidelines.\n3. Employee agrees to assist the Company in obtaining, securing, maintaining, preserving any protections and patents, copyrights,\ntrademarks or design right in and to Company Confidential Information or other information or data that Employee has accessed\nduring employment with the Company, even where such information or data was created, conceived, or designed by Employee solely\nor jointly with other employees of the Company. It is further understood and agreed that all written documentation and all work done\nor prepared by Employee during his employment (the “Works”) with the Company shall be deemed as “work made for hire” for the\nCompany under the United States Copyright Laws (17 U.S.C . Section 101, and any amendments thereto) and ownership of all such\nWorks shall be held at all time by the Company. If for any reason the Works are held not to be “work made for hire,” Employee\nhereby assigns all its right, title and interest in and to the Works to the Company.\n4. All Company Confidential Information transmitted or disclosed hereunder will be and remain the property of the Company and the\nCompany may notify Employee in writing that all such Company Confidential Information and any copies thereof shall be returned\nto the Company. Promptly upon request from the Company, Employee shall redeliver to the Company all tangible Company\nConfidential Information, and any other tangible material containing, prepared on the basis of, or reflecting any information in the\nCompany Confidential Information, (whether prepared by the parties, their advisors or otherwise), including all reports, analyses,\ncompilations, studies and other materials containing or based on the Company Confidential Information, or reflecting the review of,\nor interest in, the Company’s business, and will not retain any copies, extracts or other reproductions in whole or in part of such\nCompany Confidential Information.\n5. In acknowledging the unique and proprietary nature of the Company Confidential Information, the parties further understand and\nagree that money damages may not be a sufficient remedy for any breach of this Agreement by Employee and that the Company may\nsuffer great and irreparable injury as a consequence of such breach; therefore, the Company shall be entitled to seek equitable relief,\nincluding injunction and specific performance as a remedy for such breach. The Company may seek a court order or injunction\nwithout further notice to protect the confidentiality of its information and to halt any unauthorized disclosure thereof. Such remedies\nshall not be deemed to be exclusive remedies for a breach by Employee but shall be in addition to all other remedies provided\nhereunder or available at law or equity to the Company.\n6. If Employee is served with a subpoena or other process requiring the production or disclosure of Company Confidential\nInformation, then the Employee, before complying with such subpoena or other process, shall immediately notify the Company of\nsame and permit the Company a reasonable period of time to intervene and contest disclosure or production. Employee will cooperate\nin seeking, performing and enforcing a protective order for the Company Confidential Information.\n7. The Employee may not assign or otherwise transfer any of his rights or obligations under this Agreement to any third party without\nthe prior written consent of the Company. No permitted assignment shall relieve the Employee of his obligations hereunder with\nrespect to Company Confidential Information disclosed prior to the assignment. Any assignment in violation of this Section shall be\nnull and void.\n8. THIS AGREEMENT DOES NOT MODIFY OR ALTER, IN ANY WAY THE AT-WILL NATURE OF EMPLOYEE’S\nEMPLOYMENT. EMPLOYEE’S EMPLOYMENT IS AT-WILL, WHICH MEANS THAT EITHER EMPLOYEE OR\nCOMPANY CAN TERMINATE THE EMPLOYMENT RELATIONSHIP AT ANY TIME, FOR ANY LAWFUL REASON,\nWITH OR WITHOUT NOTICE. THE AT-WILL NATURE OF SUCH EMPLOYMENT CAN ONLY BE MODIFIED BY A\nWRITING SIGNED BY THE COMPANY’S PRESIDENT OR GENERAL COUNSEL.\n9. With the exception of the letter from the Company offering employment to the Employee which is being presented to Employee on\ngiven date, this Agreement constitutes the entire agreement and understanding of the parties on the subject matter hereof and\nsupersedes all prior communications, agreements, and understandings, whether written or oral, relating thereto. This Agreement may\nbe modified only by further written agreement signed by each of the parties hereto. This Agreement will be governed in all respects\nby the laws of the State of New Jersey.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date indicated above.\nREALOGY GROUP LLC\nEMPLOYEE\nBy:\n/s/ David J. Weaving\nBy:/s/ Charles C. Baker\nName:\nDavid J. Weaving\nName:\nCharles C. Baker\nTitle:\nEVP/CAO\nTitle:15 July 2014
af7e0fefad62fc589c126cd4cd44dbf3.pdf	effective_date jurisdiction party term	EX-99.(D)(5) 19 dex99d5.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(5)\nHTE, Inc.\n149 South Ridgewood Avenue, Suite 550\nDaytona Beach, FL 32114\nSeptember 5, 2002\nSunGard Data Systems Inc.\n1285 Drummers Lane\nWayne, PA 19087-1586\nCONFIDENTIALITY/NONDISCLOSURE AGREEMENT\nLadies and Gentlemen:\nIn connection with our discussions concerning a possible negotiated business arrangement (the “Proposed Transaction”) between HTE, Inc.\n(“HTE”) and SunGard Data Systems Inc. (“SunGard”), or an affiliate thereof, certain non-public confidential and proprietary information may be\nfurnished to SunGard or its directors, officers, employees, affiliates, representatives (including, without limitation, SunGard’s financial advisors,\nattorneys and accountants), agents and controlling persons (collectively, “SunGard’s Representatives”) by HTE or its directors, officers, employees\naffiliates, representatives (including, without limitation, HTE’s financial advisors, attorneys and accountants) or agents (collectively “HTE’s\nRepresentatives”), upon SunGard’s execution and delivery to us of this Agreement. Such information (“Confidential Information”) includes any oral\nor written non-public information furnished by HTE or HTE’s Representatives (or that may otherwise be obtained by SunGard from one or more\nconversations with HTE or HTE’s Representatives or by an inspection of HTE’s facilities), whether before, on or after the date hereof, regardless of\nthe manner in which it is furnished, to SunGard or SunGard’s Representatives, together with all analyses, compilation, forecasts, studies or other\ndocuments prepared by SunGard or SunGard’s Representatives, to the extent they contain or reflect any such information of a business or technical\nnature, including, without limitation, inventions, trade secrets, ideas, processes, formulas, source codes, works of authorship, know-how,\nimprovements, discoveries, developments, designs and techniques, and software, as well as information regarding plans for research, development,\nnew products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, and suppliers and\ncustomers, as well as the nature and proposed terms and conditions of the Proposed Transaction itself.\nIn order to induce HTE to enter into negotiations regarding the Proposed Transaction, and in consideration of same, SunGard agrees that any\nConfidential Information received shall be held in strict confidence by SunGard and SunGard’s Representatives; shall be used by SunGard and\nSunGard’s Representatives only in connection with evaluating the Proposed Transaction; shall not be disclosed, directly or indirectly, by SunGard or\nSunGard’s Representatives to anyone except SunGard’s Representatives who use such information for the purpose of evaluating the Proposed\nTransaction; and shall not be disclosed, directly or indirectly, to third parties without the prior written consent of HTE. Among other things, SunGard\nshall not, directly or indirectly, disclose or otherwise use any Confidential Information in deciding to (or advising others to) buy, sell or\n1\notherwise deal in securities of HTE. Without limiting the generality of the foregoing, SunGard shall exercise no less care to safeguard the\nConfidential Information than SunGard exercises in safeguarding SunGard’s own non-public, confidential and proprietary information. In addition,\nSunGard shall not, without the prior written consent of HTE, disclose to any third party the fact that Confidential Information has been made\navailable or that discussions or negotiations are taking place concerning the Proposed Transaction. SunGard shall cause SunGard’s Representatives\nto observe the terms of this Agreement, and SunGard shall be responsible for any breach of this Agreement by any of SunGard’s Representatives.\nSunGard shall promptly notify HTE of any breach of this Agreement by SunGard or SunGard’s Representatives, and shall cooperate fully in\npursuing any lawful remedies therefor.\nThe foregoing restrictions on SunGard’s disclosure and use of Confidential Information shall not apply to the extent that such information: (a)\nis or becomes generally available to the public other than as a result of a disclosure by SunGard or SunGard’s Representatives; (b) becomes available\nto SunGard on a nonconfidential basis from a person other than HTE or HTE’s Representatives who is not bound by a confidentiality agreement with\nHTE or any of HTE’s Representatives, or is not otherwise under an obligation to HTE or any of HTE’s Representatives not to transmit the\ninformation to SunGard; or (c) has been or is independently developed by SunGard; provided, however, that SunGard shall have the burden of proof\nrespecting (b) and (c) of the aforementioned events on which SunGard relies as relieving SunGard of any restrictions hereunder, and provided\nfurther, that in the case of (a), (b) and/or (c) above, the removal of restrictions shall be effective only as of the date of occurrence of the applicable\nevent.\nIn the event that SunGard or any of SunGard’s Representatives are or is requested pursuant to, or required by, applicable law or regulation or\nby legal process to disclose any Confidential Information, SunGard agrees that it will provide HTE with prompt written notice of such request or\nrequirement in order to enable HTE to seek an appropriate protective order or other remedy, to consult with SunGard with respect to HTE’s taking\nsteps to resist or narrow the scope of such request or legal process, or to waive compliance, in whole or in part, with the terms of this Agreement. If\nno such protective order or other remedy is obtained or HTE waives compliance with the terms of this Agreement, SunGard or SunGard’s\nRepresentatives will furnish only that portion of the Confidential Information which SunGard is reasonably advised by its counsel is legally required\nto be furnished and SunGard will use its reasonable efforts to ensure that all Confidential Information and other information that is so disclosed will\nbe accorded confidential treatment. Notwithstanding the foregoing to the contrary, SunGard’s Legal Department may retain, for archival purposes\nonly, one confidential copy of any Confidential Information presented to SunGard’s Board of Directors regarding the Proposed Transaction.\nSunGard will inform HTE which of the Confidential Information SunGard has retained for this purpose.\nSunGard also agrees that for a period of two years from the date of this Agreement SunGard will not, without the prior written consent of\nHTE: (a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, greater than five percent (5%) of any\nsecurities (whether equity, debt, convertible or any other type of securities), or direct or indirect rights to acquire greater than five percent (5%) of\nany securities, of HTE; (b) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in\nthe rules of the Securities and Exchange Commission), or seek to advise or influence any person or entity with\n2\nrespect to the voting of any voting securities of HTE or any subsidiary thereof; (c) make any public announcement with respect to, or submit a\nproposal for, or offer of (with or without conditions) any extraordinary transaction involving HTE or any subsidiary thereof or any of its or their\nsecurities or assets; or (d) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended, in connection with any of the foregoing.\nThe furnishing of Confidential Information shall not constitute or be construed as a grant of any express or implied license or other right, or a\ncovenant not to sue or forbearance from any other right of action (except as to permitted activities hereunder), by HTE to SunGard or SunGard’s\nRepresentatives under any of HTE’s patents or other intellectual property rights.\nIf SunGard decides not to proceed with the Proposed Transaction, SunGard will promptly advise HTE of that decision. In that case, or in the\nevent that HTE, in its sole discretion, so requests, SunGard and SunGard’s Representatives shall promptly destroy (providing written confirmation of\nsuch destruction) or return all written graphic or other tangible forms of the Confidential Information and all copies, reproductions, summaries,\nanalyses or extracts thereof. Any oral Confidential Information will continue to be subject to the terms of this Agreement. The foregoing shall not\napply to any archival copies of Board of Director materials which SunGard’s Legal Department is entitled to retain as provided above.\nSunGard acknowledges and agrees that neither HTE nor any of HTE’s Representatives makes any express or implied representation or\nwarranty as to the accuracy or completeness of any Confidential Information, and SunGard agrees that no such person or entity shall have any\nliability to SunGard as a result of the use of Confidential Information by SunGard or any of SunGard’s Representatives, it being understood that only\nthose specific representations and warranties which may be made in a definitive agreement with respect to the Proposed Transaction when, as and if\nsuch an agreement is executed shall have any legal effect. It is similarly understood that this Agreement does not contain all matters upon which\nagreement must be reached in order for the Proposed Transaction to be consummated and, therefore, HTE is not in any way bound hereunder with\nrespect to the Proposed Transaction.\nSunGard agrees that, without HTE’s prior written consent, SunGard will not, for a period of eighteen (18) months from the date hereof, solicit\nfor employment any person who is now employed by HTE or any of its subsidiaries and who is identified by SunGard as a result of SunGard’s\nevaluation of the Proposed Transaction. The term “solicit” shall not to include general solicitations or advertisements of employment not specifically\ndirected to such employees of HTE or any of its subsidiaries.\nSunGard understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement and that HTE may be\nentitled to equitable relief (including, but not limited to, an injunction or specific performance) to enforce the terms of this Agreement in the event of\nany breach by SunGard or SunGard’s Representatives of the provisions of this Agreement. In the event of litigation relating to this Agreement, if a\ncourt of competent jurisdiction determines in a final order that this Agreement has been breached by SunGard or SunGard’s Representatives, then\nSunGard will reimburse HTE for its costs and expenses (including, without limitation, legal fees and expenses) incurred in connection with such\nlitigation. SunGard hereby: (a) submits to the\n3\njurisdiction of any state or federal court sitting in Orlando, Florida with respect to all actions and proceedings arising out of or relating to this\nAgreement (although HTE reserves the right to bring such action or proceeding in any other jurisdiction to which SunGard is subject); (b) agrees that\nall claims with respect to any such action or proceeding may be heard and determined in such court; (c) waives the defense of an inconvenient\nforum; (d) consents to service of process upon SunGard by mailing (by certified mail, return receipt requested, to the attention of the General\nCounsel) or delivering (to the attention of the General Counsel) such service to SunGard at its principal business address as of the date hereof (or\nsuch other principal business address of which SunGard may notify HTE in the future); and (e) agrees that a final judgment in any such action or\nproceeding may be enforced in other jurisdictions by suit on the judgment.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of Florida without regard to conflicts of law\nprinciples. This Agreement contains the entire agreement relating to the subject matter hereof and supersedes the April 29, 1999 confidentiality\nagreement between the parties and all other prior or contemporaneous oral or written agreements. No failure or delay by HTE in exercising any right,\npower or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise\nthereof or the exercise of any right, power or privilege hereunder. No amendment or modification of this Agreement or waiver of the terms or\nconditions hereof shall be binding upon SunGard or HTE except by mutual written agreement of each of HTE and SunGard. Any assignment of this\nletter agreement by SunGard without HTE’s prior written consent shall be null and void. This Agreement shall be binding upon SunGard and its\nheirs, legal representatives, successors, and permitted assigns, and shall inure to the benefit of HTE and its successors and assigns.\nPlease confirm SunGard’s agreement with the foregoing by signing and returning the duplicate copy of this letter enclosed herewith to me at\nthe address indicated in the letterhead hereof.\nVery truly yours,\nH.T.E ., Inc.\nBy:\n/s/ L.A. GORNTO, JR.\nL. A. Gornto, Jr., Exec. Vice President\nACCEPTED AND AGREED AS OF THE DATE FIRST\nABOVE WRITTEN:\nSunGard Data Systems Inc.\nBy:\n/s/ RICHARD C. TARBOX\nRichard C. Tarbox\nSenior Vice President-Corporate Development\n4	EX-99.(D)(5) 19 dex99d5.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(5)\nHTE, Inc.\n149 South Ridgewood Avenue, Suite 550\nDaytona Beach, FL 32114\nSeptember 5, 2002\nSunGard Data Systems Inc.\n1285 Drummers Lane\nWayne, PA 19087-1586\nCONFIDENTIALITY/NONDISCLOSURE AGREEMENT\nLadies and Gentlemen:\nIn connection with our discussions concerning a possible negotiated business arrangement (the “Proposed Transaction”) between HTE, Inc.\n(“HTE”) and SunGard Data Systems Inc. (“SunGard”), or an affiliate thereof, certain non-public confidential and proprietary information may be\nfurnished to SunGard or its directors, officers, employees, affiliates, representatives (including, without limitation, SunGard’s financial advisors,\nattorneys and accountants), agents and controlling persons (collectively, “SunGard’s Representatives”) by HTE or its directors, officers, employees\naffiliates, representatives (including, without limitation, HTE’s financial advisors, attorneys and accountants) or agents (collectively “HTE’s\nRepresentatives”), upon SunGard’s execution and delivery to us of this Agreement. Such information (“Confidential Information”) includes any oral\nor written non-public information furnished by HTE or HTE’s Representatives (or that may otherwise be obtained by SunGard from one or more\nconversations with HTE or HTE’s Representatives or by an inspection of HTE’s facilities), whether before, on or after the date hereof, regardless of\nthe manner in which it is furnished, to SunGard or SunGard’s Representatives, together with all analyses, compilation, forecasts, studies or other\ndocuments prepared by SunGard or SunGard’s Representatives, to the extent they contain or reflect any such information of a business or technical\nnature, including, without limitation, inventions, trade secrets, ideas, processes, formulas, source codes, works of authorship, know-how,\nimprovements, discoveries, developments, designs and techniques, and software, as well as information regarding plans for research, development,\nnew products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, and suppliers and\ncustomers, as well as the nature and proposed terms and conditions of the Proposed Transaction itself.\nIn order to induce HTE to enter into negotiations regarding the Proposed Transaction, and in consideration of same, SunGard agrees that any\nConfidential Information received shall be held in strict confidence by SunGard and SunGard’s Representatives; shall be used by SunGard and\nSunGard’s Representatives only in connection with evaluating the Proposed Transaction; shall not be disclosed, directly or indirectly, by SunGard or\nSunGard’s Representatives to anyone except SunGard’s Representatives who use such information for the purpose of evaluating the Proposed\nTransaction; and shall not be disclosed, directly or indirectly, to third parties without the prior written consent of HTE. Among other things, SunGard\nshall not, directly or indirectly, disclose or otherwise use any Confidential Information in deciding to (or advising others to) buy, sell or\n1\notherwise deal in securities of HTE. Without limiting the generality of the foregoing, SunGard shall exercise no less care to safeguard the\nConfidential Information than SunGard exercises in safeguarding SunGard’s own non-public, confidential and proprietary information. In addition,\nSunGard shall not, without the prior written consent of HTE, disclose to any third party the fact that Confidential Information has been made\navailable or that discussions or negotiations are taking place concerning the Proposed Transaction. SunGard shall cause SunGard’s Representatives\nto observe the terms of this Agreement, and SunGard shall be responsible for any breach of this Agreement by any of SunGard’s Representatives.\nSunGard shall promptly notify HTE of any breach of this Agreement by SunGard or SunGard’s Representatives, and shall cooperate fully in\npursuing any lawful remedies therefor.\nThe foregoing restrictions on SunGard’s disclosure and use of Confidential Information shall not apply to the extent that such information: (a)\nis or becomes generally available to the public other than as a result of a disclosure by SunGard or SunGard’s Representatives; (b) becomes available\nto SunGard on a nonconfidential basis from a person other than HTE or HTE’s Representatives who is not bound by a confidentiality agreement with\nHTE or any of HTE’s Representatives, or is not otherwise under an obligation to HTE or any of HTE’s Representatives not to transmit the\ninformation to SunGard; or (c) has been or is independently developed by SunGard; provided, however, that SunGard shall have the burden of proof\nrespecting (b) and (c) of the aforementioned events on which SunGard relies as relieving SunGard of any restrictions hereunder, and provided\nfurther, that in the case of (a), (b) and/or (c) above, the removal of restrictions shall be effective only as of the date of occurrence of the applicable\nevent.\nIn the event that SunGard or any of SunGard’s Representatives are or is requested pursuant to, or required by, applicable law or regulation or\nby legal process to disclose any Confidential Information, SunGard agrees that it will provide HTE with prompt written notice of such request or\nrequirement in order to enable HTE to seek an appropriate protective order or other remedy, to consult with SunGard with respect to HTE’s taking\nsteps to resist or narrow the scope of such request or legal process, or to waive compliance, in whole or in part, with the terms of this Agreement. If\nno such protective order or other remedy is obtained or HTE waives compliance with the terms of this Agreement, SunGard or SunGard’s\nRepresentatives will furnish only that portion of the Confidential Information which SunGard is reasonably advised by its counsel is legally required\nto be furnished and SunGard will use its reasonable efforts to ensure that all Confidential Information and other information that is so disclosed will\nbe accorded confidential treatment. Notwithstanding the foregoing to the contrary, SunGard’s Legal Department may retain, for archival purposes\nonly, one confidential copy of any Confidential Information presented to SunGard’s Board of Directors regarding the Proposed Transaction.\nSunGard will inform HTE which of the Confidential Information SunGard has retained for this purpose.\nSunGard also agrees that for a period of two years from the date of this Agreement SunGard will not, without the prior written consent of\nHTE: (a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, greater than five percent (5%) of any\nsecurities (whether equity, debt, convertible or any other type of securities), or direct or indirect rights to acquire greater than five percent (5%) of\nany securities, of HTE,; (b) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in\nthe rules of the Securities and Exchange Commission), or seek to advise or influence any person or entity with\n2\nrespect to the voting of any voting securities of HTE or any subsidiary thereof; (c) make any public announcement with respect to, or submit a\nproposal for, or offer of (with or without conditions) any extraordinary transaction involving HTE or any subsidiary thereof or any of its or their\nsecurities or assets; or (d) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended, in connection with any of the foregoing.\nThe furnishing of Confidential Information shall not constitute or be construed as a grant of any express or implied license or other right, or a\ncovenant not to sue or forbearance from any other right of action (except as to permitted activities hereunder), by HTE to SunGard or SunGard’s\nRepresentatives under any of HTE’s patents or other intellectual property rights.\nIf SunGard decides not to proceed with the Proposed Transaction, SunGard will promptly advise HTE of that decision. In that case, or in the\nevent that HTE, in its sole discretion, so requests, SunGard and SunGard’s Representatives shall promptly destroy (providing written confirmation of\nsuch destruction) or return all written graphic or other tangible forms of the Confidential Information and all copies, reproductions, summaries,\nanalyses or extracts thereof. Any oral Confidential Information will continue to be subject to the terms of this Agreement. The foregoing shall not\napply to any archival copies of Board of Director materials which SunGard’s Legal Department is entitled to retain as provided above.\nSunGard acknowledges and agrees that neither HTE nor any of HTE’s Representatives makes any express or implied representation or\nwarranty as to the accuracy or completeness of any Confidential Information, and SunGard agrees that no such person or entity shall have any\nliability to SunGard as a result of the use of Confidential Information by SunGard or any of SunGard’s Representatives, it being understood that only\nthose specific representations and warranties which may be made in a definitive agreement with respect to the Proposed Transaction when, as and if\nsuch an agreement is executed shall have any legal effect. It is similarly understood that this Agreement does not contain all matters upon which\nagreement must be reached in order for the Proposed Transaction to be consummated and, therefore, HTE is not in any way bound hereunder with\nrespect to the Proposed Transaction.\nSunGard agrees that, without HTE’s prior written consent, SunGard will not, for a period of eighteen (18) months from the date hereof, solicit\nfor employment any person who is now employed by HTE or any of its subsidiaries and who is identified by SunGard as a result of SunGard’s\nevaluation of the Proposed Transaction. The term “solicit” shall not to include general solicitations or advertisements of employment not specifically\ndirected to such employees of HTE or any of its subsidiaries.\nSunGard understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement and that HTE may be\nentitled to equitable relief (including, but not limited to, an injunction or specific performance) to enforce the terms of this Agreement in the event of\nany breach by SunGard or SunGard’s Representatives of the provisions of this Agreement. In the event of litigation relating to this Agreement, if a\ncourt of competent jurisdiction determines in a final order that this Agreement has been breached by SunGard or SunGard’s Representatives, then\nSunGard will reimburse HTE for its costs and expenses (including, without limitation, legal fees and expenses) incurred in connection with such\nlitigation. SunGard hereby: (a) submits to the\njurisdiction of any state or federal court sitting in Orlando, Florida with respect to all actions and proceedings arising out of or relating to this\nAgreement (although HTE reserves the right to bring such action or proceeding in any other jurisdiction to which SunGard is subject); (b) agrees that\nall claims with respect to any such action or proceeding may be heard and determined in such court; (c) waives the defense of an inconvenient\nforum; (d) consents to service of process upon SunGard by mailing (by certified mail, return receipt requested, to the attention of the General\nCounsel) or delivering (to the attention of the General Counsel) such service to SunGard at its principal business address as of the date hereof (or\nsuch other principal business address of which SunGard may notify HTE in the future); and (e) agrees that a final judgment in any such action or\nproceeding may be enforced in other jurisdictions by suit on the judgment.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of Florida without regard to conflicts of law\nprinciples. This Agreement contains the entire agreement relating to the subject matter hereof and supersedes the April 29, 1999 confidentiality\nagreement between the parties and all other prior or contemporaneous oral or written agreements. No failure or delay by HTE in exercising any right,\npower or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise\nthereof or the exercise of any right, power or privilege hereunder. No amendment or modification of this Agreement or waiver of the terms or\nconditions hereof shall be binding upon SunGard or HTE except by mutual written agreement of each of HTE and SunGard. Any assignment of this\nletter agreement by SunGard without HTE’s prior written consent shall be null and void. This Agreement shall be binding upon SunGard and its\nheirs, legal representatives, successors, and permitted assigns, and shall inure to the benefit of HTE and its successors and assigns.\nPlease confirm SunGard’s agreement with the foregoing by signing and returning the duplicate copy of this letter enclosed herewith to me at\nthe address indicated in the letterhead hereof.\nVery truly yours,\nH.T.E., Inc.\nBy: /s/ L.A. GORNTO, JR.\nL. A. Gornto, Jr., Exec. Vice President\nACCEPTED AND AGREED AS OF THE DATE FIRST\nABOVE WRITTEN:\nSunGard Data Systems Inc.\nBy: /s/  RICHARD C. TARBOX\nRichard C. Tarbox\nSenior Vice President-Corporate Development	EX-99.(D)(5) 19 dex99d5.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(5)\nHTE, Inc.\n149 South Ridgewood Avenue, Suite 550\nDaytona Beach, FL 32114\nSeptember 5, 2002\nSunGard Data Systems Inc.\n1285 Drummers Lane\nWayne, PA 19087-1586\nCONFIDENTIALITY/NONDISCLOSURE AGREEMENT\nLadies and Gentlemen:\nIn connection with our discussions concerning a possible negotiated business arrangement (the "Proposed Transaction") between HTE, Inc.\n("HTE") and SunGard Data Systems Inc. ("SunGard"), or an affiliate thereof, certain non-public confidential and proprietary information may be\nfurnished to SunGard or its directors, officers, employees, affiliates, representatives (including, without limitation, SunGard's financial advisors,\nattorneys and accountants), agents and controlling persons (collectively, "SunGard's Representatives") by HTE or its directors, officers, employees\naffiliates, representatives (including, without limitation, HTE's financial advisors, attorneys and accountants) or agents (collectively "HTE's\nRepresentatives"), upon SunGard's execution and delivery to us of this Agreement. Such information ("Confidential Information") includes any oral\nor written non-public information furnished by HTE or HTE's Representatives (or that may otherwise be obtained by SunGard from one or more\nconversations with HTE or HTE's Representatives or by an inspection of HTE's facilities), whether before, on or after the date hereof, regardless of\nthe manner in which it is furnished, to SunGard or SunGard's Representatives, together with all analyses, compilation, forecasts, studies or other\ndocuments prepared by SunGard or SunGard's Representatives, to the extent they contain or reflect any such information of a business or technical\nnature, including, without limitation, inventions, trade secrets, ideas, processes, formulas, source codes, works of authorship, know-how,\nimprovements, discoveries, developments, designs and techniques, and software, as well as information regarding plans for research, development,\nnew products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, and suppliers and\ncustomers, as well as the nature and proposed terms and conditions of the Proposed Transaction itself.\nIn order to induce HTE to enter into negotiations regarding the Proposed Transaction, and in consideration of same, SunGard agrees that any\nConfidential Information received shall be held in strict confidence by SunGard and SunGard's Representatives; shall be used by SunGard and\nSunGard's Representatives only in connection with evaluating the Proposed Transaction; shall not be disclosed, directly or indirectly, by SunGard or\nSunGard's Representatives to anyone except SunGard's Representatives who use such information for the purpose of evaluating the Proposed\nTransaction; and shall not be disclosed, directly or indirectly, to third parties without the prior written consent of HTE. Among other things, SunGard\nshall not, directly or indirectly, disclose or otherwise use any Confidential Information in deciding to (or advising others to) buy, sell or\n1\notherwise deal in securities of HTE. Without limiting the generality of the foregoing, SunGard shall exercise no less care to safeguard the\nConfidential Information than SunGard exercises in safeguarding SunGard's own non-public, confidential and proprietary information. In addition,\nSunGard shall not, without the prior written consent of HTE, disclose to any third party the fact that Confidential Information has been made\navailable or that discussions or negotiations are taking place concerning the Proposed Transaction. SunGard shall cause SunGard's Representatives\nto observe the terms of this Agreement, and SunGard shall be responsible for any breach of this Agreement by any of SunGard's Representatives.\nSunGard shall promptly notify HTE of any breach of this Agreement by SunGard or SunGard's Representatives, and shall cooperate fully\nin\npursuing any lawful remedies therefor.\nThe foregoing restrictions on SunGard's disclosure and use of Confidential Information shall not apply to the extent that such information: (a)\nis or becomes generally available to the public other than as a result of a disclosure by SunGard or SunGard's Representatives; (b) becomes available\nto SunGard on a nonconfidential basis from a person other than HTE or HTE's Representatives who is not bound by a confidentiality agreement with\nHTE or any of HTE's Representatives, or is not otherwise under an obligation to HTE or any of HTE's Representatives not to transmit the\ninformation to SunGard; or (c) has been or is independently developed by SunGard; provided, however, that SunGard shall have the burden of proof\nrespecting (b) and (c) of the aforementioned events on which SunGard relies as relieving SunGard of any restrictions hereunder, and provided\nfurther, that in the case of (a), (b) and/or (c) above, the removal of restrictions shall be effective only as of the date of occurrence of the applicable\nevent.\nIn the event that SunGard or any of SunGard's Representatives are or is requested pursuant to, or required by, applicable law or regulation or\nby legal process to disclose any Confidential Information, SunGard agrees that it will provide HTE with prompt written notice of such request or\nrequirement in order to enable HTE to seek an appropriate protective order or other remedy, to consult with SunGard with respect to HTE's taking\nsteps to resist or narrow the scope of such request or legal process, or to waive compliance, in whole or in part, with the terms of this Agreement. If\nno\nsuch protective order or other remedy is obtained or HTE waives compliance with the terms of this Agreement, SunGard or SunGard's\nRepresentatives will furnish only that portion of the Confidential Information which SunGard is reasonably advised by its counsel is legally required\nto be furnished and SunGard will use its reasonable efforts to ensure that all Confidentia Information and other information that is so disclosed will\nbe accorded confidential treatment. Notwithstanding the foregoing to the contrary, SunGard's Legal Department may retain, for archival purposes\nonly, one confidential copy of any Confidential Information presented to SunGard's Board of Directors regarding the Proposed Transaction.\nSunGard will inform HTE which of the Confidential Information SunGard has retained for this purpose.\nSunGard also agrees that for a period of two years from the date of this Agreement SunGard will not, without the prior written consent of\nHTE: (a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, greater than five percent (5%) of any\nsecurities (whether equity, debt, convertible or any other type of securities), or direct or indirect rights to acquire greater than five percent (5%) of\nany securities, of HTE; (b) make, or in any way participate, directly or indirectly, in any "'solicitation" of "proxies" to vote (as such terms are used\nin\nthe rules of the Securities and Exchange Commission), or seek to advise or influence any person or entity with\n2\nrespect to the voting of any voting securities of HTE or any subsidiary thereof; (c) make any public announcement with respect to, or submit\na\nproposal for, or offer of (with or without conditions) any extraordinary transaction involving HTE or any subsidiary thereof or any of its or their\nsecurities or assets; or (d) form, join or in any way participate in a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended, in connection with any of the foregoing.\nThe furnishing of Confidential Information shall not constitute or be construed as a grant of any express or implied license or other right, or a\ncovenant not to sue or forbearance from any other right of action (except as to permitted activities hereunder), by HTE to SunGard or SunGard's\nRepresentatives under any of HTE's patents or other intellectual property rights.\nIf SunGard decides not to proceed with the Proposed Transaction, SunGard will promptly advise HTE of that decision. In that case, or in the\nevent that HTE, in its sole discretion, so requests, SunGard and SunGard's Representatives shall promptly destroy (providing written confirmation of\nsuch\ndestruction) or return all written graphic or other tangible forms of the Confidential Information and all copies, reproductions, summaries,\nanalyses or extracts thereof. Any oral Confidential Information will continue to be subject to the terms of this Agreement. The foregoing shall not\napply to any archival copies of Board of Director materials which SunGard's Legal Department is entitled to retain as provided above.\nSunGard acknowledges and agrees that neither HTE nor any of HTE's Representatives makes any express or implied representation or\nwarranty as to the accuracy or completeness of any Confidential Information, and SunGard agrees that no such person or entity shall have any\nliability to SunGard as a result of the use of Confidential Information by SunGard or any of SunGard's Representatives, it being understood that only\nthose specific representations and warranties which may be made in a definitive agreement with respect to the Proposed Transaction when, as and if\nsuch an agreement is executed shall have any legal effect. It is similarly understood that this Agreement does not contain all matters upon which\nagreement must be reached in order for the Proposed Transaction to be consummated and, therefore, HTE is not in any way bound hereunder with\nrespect to the Proposed Transaction.\nSunGard agrees that, without HTE's prior written consent, SunGard will not, for a period of eighteen (18) months from the date hereof, solicit\nfor employment any person who is now employed by HTE or any of its subsidiaries and who is identified by SunGard as a result of SunGard's\nevaluation of the Proposed Transaction. The term "solicit" shall not to include general solicitations or advertisements of employment not specifically\ndirected to such employees of HTE or any of its subsidiaries.\nSunGard understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement and that HTE may be\nentitled to equitable relief (including, but not limited to, an injunction or specific performance) to enforce the terms of this Agreement in the event of\nany breach by SunGard or SunGard's Representatives of the provisions of this Agreement. In the event of litigation relating to this Agreement, if\na\ncourt of competent jurisdiction determines in a final order that this Agreement has been breached by SunGard or SunGard's Representatives, then\nSunGard will reimburse HTE for its costs and expenses (including, without limitation, legal fees and expenses) incurred in connection with such\nlitigation. SunGard hereby: (a) submits to the\n3\njurisdiction of any state or federal court sitting in Orlando, Florida with respect to all actions and proceedings arising out of or relating to this\nAgreement (although HTE reserves the right to bring such action or proceeding in any other jurisdiction to which SunGard is subject); (b) agrees that\nall claims with respect to any such action or proceeding may be heard and determined in such court; (c) waives the defense of an inconvenient\nforum; (d) consents to service of process upon SunGard by mailing (by certified mail, return receipt requested, to the attention of the General\nCounsel) or delivering (to the attention of the General Counsel) such service to SunGard at its principal business address as of the date hereof (or\nsuch other principal business address of which SunGard may notify HTE in the future); and (e) agrees that a final judgment in any such action\nor\nproceeding may be enforced in other jurisdictions by suit on the judgment.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of Florida without regard to conflicts of law\nprinciples. This Agreement contains the entire agreement relating to the subject matter hereof and supersedes the April 29, 1999 confidentiality\nagreement between the parties and all other prior or contemporaneous oral or written agreements. No failure or delay by HTE in exercising any right,\npower or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise\nthereof or the exercise of any right, power or privilege hereunder. No amendment or modification of this Agreement or waiver of the terms or\nconditions hereof shall be binding upon SunGard or HTE except by mutual written agreement of each of HTE and SunGard. Any assignment of this\nletter agreement by SunGard without HTE's prior written consent shall be null and void. This Agreement shall be binding upon SunGard and its\nheirs, legal representatives, successors, and permitted assigns, and shall inure to the benefit of HTE and its successors and assigns.\nPlease confirm SunGard's agreement with the foregoing by signing and returning the duplicate copy of this letter enclosed herewith to me at\nthe address indicated in the letterhead hereof.\nVery truly yours,\nH.T.E., Inc.\nBy:\n/s/ L.A. GORNTO, JR.\nL. A. Gornto, Jr., Exec. Vice President\nACCEPTED AND AGREED AS OF THE DATE FIRST\nABOVE WRITTEN:\nSunGard Data Systems Inc.\nBy:\n/s/ RICHARD C. TARBOX\nRichard C. Tarbox\nSenior Vice President-Corporate Development\n4	EX-99.(D)(5) 19 dex99d5.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(5)\nHTE, Inc.\n149 South Ridgewood Avenue, Suite 550\nDaytona Beach, FL 32114\nSeptember 5, 2002\nSunGard Data Systems Inc.\n1285 Drummers Lane\nWayne, PA 19087-1586\nCONFIDENTIALITY/NONDISCLOSURE AGREEMENT\nLadies and Gentlemen:\nIn connection with our discussions concerning a possible negotiated business arrangement (the “Proposed Transaction”) between HTE, Inc.\n(“HTE”) and SunGard Data Systems Inc. (“SunGard”), or an affiliate thereof, certain non-public confidential and proprietary information may be\nfurnished to SunGard or its directors, officers, employees, affiliates, representatives (including, without limitation, SunGard’s financial advisors,\nattorneys and accountants), agents and controlling persons (collectively, “SunGard’s Representatives”) by HTE or its directors, officers, employees\naffiliates, representatives (including, without limitation, HTE’s financial advisors, attorneys and accountants) or agents (collectively “HTE’s\nRepresentatives”), upon SunGard’s execution and delivery to us of this Agreement. Such information (“Confidential Information”) includes any oral\nor written non-public information furnished by HTE or HTE’s Representatives (or that may otherwise be obtained by SunGard from one or more\nconversations with HTE or HTE’s Representatives or by an inspection of HTE’s facilities), whether before, on or after the date hereof, regardless of\nthe manner in which it is furnished, to SunGard or SunGard’s Representatives, together with all analyses, compilation, forecasts, studies or other\ndocuments prepared by SunGard or SunGard’s Representatives, to the extent they contain or reflect any such information of a business or technical\nnature, including, without limitation, inventions, trade secrets, ideas, processes, formulas, source codes, works of authorship, know-how,\nimprovements, discoveries, developments, designs and techniques, and software, as well as information regarding plans for research, development,\nnew products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, and suppliers and\ncustomers, as well as the nature and proposed terms and conditions of the Proposed Transaction itself.\nIn order to induce HTE to enter into negotiations regarding the Proposed Transaction, and in consideration of same, SunGard agrees that any\nConfidential Information received shall be held in strict confidence by SunGard and SunGard’s Representatives; shall be used by SunGard and\nSunGard’s Representatives only in connection with evaluating the Proposed Transaction; shall not be disclosed, directly or indirectly, by SunGard or\nSunGard’s Representatives to anyone except SunGard’s Representatives who use such information for the purpose of evaluating the Proposed\nTransaction; and shall not be disclosed, directly or indirectly, to third parties without the prior written consent of HTE. Among other things, SunGard\nshall not, directly or indirectly, disclose or otherwise use any Confidential Information in deciding to (or advising others to) buy, sell or\n1\notherwise deal in securities of HTE. Without limiting the generality of the foregoing, SunGard shall exercise no less care to safeguard the\nConfidential Information than SunGard exercises in safeguarding SunGard’s own non-public, confidential and proprietary information. In addition,\nSunGard shall not, without the prior written consent of HTE, disclose to any third party the fact that Confidential Information has been made\navailable or that discussions or negotiations are taking place concerning the Proposed Transaction. SunGard shall cause SunGard’s Representatives\nto observe the terms of this Agreement, and SunGard shall be responsible for any breach of this Agreement by any of SunGard’s Representatives.\nSunGard shall promptly notify HTE of any breach of this Agreement by SunGard or SunGard’s Representatives, and shall cooperate fully in\npursuing any lawful remedies therefor.\nThe foregoing restrictions on SunGard’s disclosure and use of Confidential Information shall not apply to the extent that such information: (a)\nis or becomes generally available to the public other than as a result of a disclosure by SunGard or SunGard’s Representatives; (b) becomes available\nto SunGard on a nonconfidential basis from a person other than HTE or HTE’s Representatives who is not bound by a confidentiality agreement with\nHTE or any of HTE’s Representatives, or is not otherwise under an obligation to HTE or any of HTE’s Representatives not to transmit the\ninformation to SunGard; or (c) has been or is independently developed by SunGard; provided, however, that SunGard shall have the burden of proof\nrespecting (b) and (c) of the aforementioned events on which SunGard relies as relieving SunGard of any restrictions hereunder, and provided\nfurther, that in the case of (a), (b) and/or (c) above, the removal of restrictions shall be effective only as of the date of occurrence of the applicable\nevent.\nIn the event that SunGard or any of SunGard’s Representatives are or is requested pursuant to, or required by, applicable law or regulation or\nby legal process to disclose any Confidential Information, SunGard agrees that it will provide HTE with prompt written notice of such request or\nrequirement in order to enable HTE to seek an appropriate protective order or other remedy, to consult with SunGard with respect to HTE’s taking\nsteps to resist or narrow the scope of such request or legal process, or to waive compliance, in whole or in part, with the terms of this Agreement. If\nno such protective order or other remedy is obtained or HTE waives compliance with the terms of this Agreement, SunGard or SunGard’s\nRepresentatives will furnish only that portion of the Confidential Information which SunGard is reasonably advised by its counsel is legally required\nto be furnished and SunGard will use its reasonable efforts to ensure that all Confidential Information and other information that is so disclosed will\nbe accorded confidential treatment. Notwithstanding the foregoing to the contrary, SunGard’s Legal Department may retain, for archival purposes\nonly, one confidential copy of any Confidential Information presented to SunGard’s Board of Directors regarding the Proposed Transaction.\nSunGard will inform HTE which of the Confidential Information SunGard has retained for this purpose.\nSunGard also agrees that for a period of two years from the date of this Agreement SunGard will not, without the prior written consent of\nHTE: (a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, greater than five percent (5%) of any\nsecurities (whether equity, debt, convertible or any other type of securities), or direct or indirect rights to acquire greater than five percent (5%) of\nany securities, of HTE; (b) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in\nthe rules of the Securities and Exchange Commission), or seek to advise or influence any person or entity with\n2\nrespect to the voting of any voting securities of HTE or any subsidiary thereof; (c) make any public announcement with respect to, or submit a\nproposal for, or offer of (with or without conditions) any extraordinary transaction involving HTE or any subsidiary thereof or any of its or their\nsecurities or assets; or (d) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended, in connection with any of the foregoing.\nThe furnishing of Confidential Information shall not constitute or be construed as a grant of any express or implied license or other right, or a\ncovenant not to sue or forbearance from any other right of action (except as to permitted activities hereunder), by HTE to SunGard or SunGard’s\nRepresentatives under any of HTE’s patents or other intellectual property rights.\nIf SunGard decides not to proceed with the Proposed Transaction, SunGard will promptly advise HTE of that decision. In that case, or in the\nevent that HTE, in its sole discretion, so requests, SunGard and SunGard’s Representatives shall promptly destroy (providing written confirmation of\nsuch destruction) or return all written graphic or other tangible forms of the Confidential Information and all copies, reproductions, summaries,\nanalyses or extracts thereof. Any oral Confidential Information will continue to be subject to the terms of this Agreement. The foregoing shall not\napply to any archival copies of Board of Director materials which SunGard’s Legal Department is entitled to retain as provided above.\nSunGard acknowledges and agrees that neither HTE nor any of HTE’s Representatives makes any express or implied representation or\nwarranty as to the accuracy or completeness of any Confidential Information, and SunGard agrees that no such person or entity shall have any\nliability to SunGard as a result of the use of Confidential Information by SunGard or any of SunGard’s Representatives, it being understood that only\nthose specific representations and warranties which may be made in a definitive agreement with respect to the Proposed Transaction when, as and if\nsuch an agreement is executed shall have any legal effect. It is similarly understood that this Agreement does not contain all matters upon which\nagreement must be reached in order for the Proposed Transaction to be consummated and, therefore, HTE is not in any way bound hereunder with\nrespect to the Proposed Transaction.\nSunGard agrees that, without HTE’s prior written consent, SunGard will not, for a period of eighteen (18) months from the date hereof, solicit\nfor employment any person who is now employed by HTE or any of its subsidiaries and who is identified by SunGard as a result of SunGard’s\nevaluation of the Proposed Transaction. The term “solicit” shall not to include general solicitations or advertisements of employment not specifically\ndirected to such employees of HTE or any of its subsidiaries.\nSunGard understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement and that HTE may be\nentitled to equitable relief (including, but not limited to, an injunction or specific performance) to enforce the terms of this Agreement in the event of\nany breach by SunGard or SunGard’s Representatives of the provisions of this Agreement. In the event of litigation relating to this Agreement, if a\ncourt of competent jurisdiction determines in a final order that this Agreement has been breached by SunGard or SunGard’s Representatives, then\nSunGard will reimburse HTE for its costs and expenses (including, without limitation, legal fees and expenses) incurred in connection with such\nlitigation. SunGard hereby: (a) submits to the\n3\njurisdiction of any state or federal court sitting in Orlando, Florida with respect to all actions and proceedings arising out of or relating to this\nAgreement (although HTE reserves the right to bring such action or proceeding in any other jurisdiction to which SunGard is subject); (b) agrees that\nall claims with respect to any such action or proceeding may be heard and determined in such court; (c) waives the defense of an inconvenient\nforum; (d) consents to service of process upon SunGard by mailing (by certified mail, return receipt requested, to the attention of the General\nCounsel) or delivering (to the attention of the General Counsel) such service to SunGard at its principal business address as of the date hereof (or\nsuch other principal business address of which SunGard may notify HTE in the future); and (e) agrees that a final judgment in any such action or\nproceeding may be enforced in other jurisdictions by suit on the judgment.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of Florida without regard to conflicts of law\nprinciples. This Agreement contains the entire agreement relating to the subject matter hereof and supersedes the April 29, 1999 confidentiality\nagreement between the parties and all other prior or contemporaneous oral or written agreements. No failure or delay by HTE in exercising any right,\npower or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise\nthereof or the exercise of any right, power or privilege hereunder. No amendment or modification of this Agreement or waiver of the terms or\nconditions hereof shall be binding upon SunGard or HTE except by mutual written agreement of each of HTE and SunGard. Any assignment of this\nletter agreement by SunGard without HTE’s prior written consent shall be null and void. This Agreement shall be binding upon SunGard and its\nheirs, legal representatives, successors, and permitted assigns, and shall inure to the benefit of HTE and its successors and assigns.\nPlease confirm SunGard’s agreement with the foregoing by signing and returning the duplicate copy of this letter enclosed herewith to me at\nthe address indicated in the letterhead hereof.\nVery truly yours,\nH.T.E ., Inc.\nBy:\n/s/ L.A. GORNTO, JR.\nL. A. Gornto, Jr., Exec. Vice President\nACCEPTED AND AGREED AS OF THE DATE FIRST\nABOVE WRITTEN:\nSunGard Data Systems Inc.\nBy:\n/s/ RICHARD C. TARBOX\nRichard C. Tarbox\nSenior Vice President-Corporate Development\n4
b10c9cd20a455613ff67c3f91d68224a.pdf	effective_date jurisdiction party	EX-10 .12 4 v83383orexv10w12.txt EXHIBIT 10.12 COVENANT NOT TO COMPETE AND NON -DISCLOSURE AGREEMENT PARTIES: Mindy Grossman\n(EMPLOYEE) and NIKE, Inc. , and its divisions, subsidiaries and affiliates. (NIKE): RECITALS: A. This Covenant Not to Compete and Non-Disclosure Agreement\nis executed upon initial employment or upon the EMPLOYEE's advancement with NIKE and is a condition of such employment or advancement. B . Over the\ncourse of EMPLOYEE's employment with NIKE, EMPLOYEE will be or has been exposed to and/or is in a position to develop confidential information peculiar to\nNIKE's business and not generally known to the public as defined below ("Protected Information"). It is anticipated that EMPLOYEE will continue to be exposed to\nProtected Information of greater sensitivity as EMPLOYEE advances in the company. C. The nature of NIKE's business is highly competitive and disclosure of\nany Protected Information would result in severe damage to NIKE and be difficult to measure. D . NIKE makes use of its Protective Information throughout the\nworld. Protective Information of NIKE can be used to NIKE's detriment anywhere in the world. AGREEMENT: In consideration of the foregoing, and the terms and\nconditions set forth below, the parties agree as follows: 1. COVENANT NOT TO COMPETE . (a) COMPETITION RESTRICTION. During EMPLOYEE's\nemployment by NIKE, under the terms of any employment contract or otherwise, and for one year thereafter, (the "Restriction Period"), EMPLOYEE will not\ndirectly or indirectly, own, manage, control, or participate in the ownership, management or control of, or be employed by, consult for, or be connected in any\nmanner with, any business engaged anywhere in the world in the athletic footwear, athletic apparel or sports equipment and accessories business, or any other\nbusiness which directly competes with NIKE or any of its parent, subsidiaries or affiliated corporations ("Competitor"). BY WAY OF ILLUSTRATION ONLY ,\nexamples of NIKE competitors include, but are not limited to: Adidas, FILA , Reebok, Puma, Champion, Oakley, DKNY , Converse, Asics, Saucony, New Balance,\nB.U .M, FUBU , The Gap, Tommy Hilfiger, Umbro, Northface, Venator (Footlockers), Sports Authority, Columbia Sportswear, Wilson, Mizuno, Callaway Golf and\nTitleist. This provision is subject to NIKE's option to waive all or any portion of the Restriction Period as more specifically provided below. (b) EXTENSION OF\nTIME. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period shall automatically toll from the date of the first breach, and all\nsubsequent breaches, until the resolution of the breach through private settlement, judicial or other action, including all appeals. The Restriction Period shall\ncontinue upon the effective date of any such settlement judicial or other resolution. NIKE shall not be obligated to pay EMPLOYEE the additional compensation\ndescribed in paragraph 1(d) below during any period of time in which this Agreement is tolled due to EMPLOYEE's breach. In the event EMPLOYEE receives\nsuch additional compensation pursuant to paragraph 1(d) below after any such breach, EMPLOYEE must immediately reimburse NIKE in the amount of all such\ncompensation upon the receipt of a written request by NIKE. (c) WAIVER OF NON-COMPETE . NIKE has the option, in its sole discretion, to elect to waive all or a\nportion of the Restriction Period or to limit the definition of Competitor, by giving EMPLOYEE seven (7) days prior notice of such election. In the event all or a\nportion of the Restriction Period is waived, NIKE shall not be obligated to pay EMPLOYEE for any period of time as to which the covenant not to compete has\nbeen waived. (d) ADDITIONAL CONSIDERATION. As additional consideration for the covenant not to compete described above, if after termination of\nEMPLOYEE's employment for any reason, NIKE elects to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a monthly payment equal to one\nhundred percent (100%) of EMPLOYEE's last monthly base salary while the Restriction Period is in effect. The first payment to EMPLOYEE of additional\nconsideration shall follow on the next applicable pay period after the election to enforce the non-competition agreement, payable in accordance with NIKE's\npayroll practices. 2. SUBSEQUENT EMPLOYER. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name of EMPLOYEE's new\nemployer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any subsequent employer during the Restriction Period, wherever located and\nregardless of whether such employer is a competitor of NIKE. 3. NON -DISCLOSURE AGREEMENT. (a) PROTECTABLE INFORMATION DEFINED. "Protected\nInformation" shall mean all proprietary information, in whatever form and format, of NIKE and all information provided to NIKE by third parties which NIKE is\nobligated to keep confidential. EMPLOYEE agrees that any and all information to which EMPLOYEE has access concerning NIKE projects and internal NIKE\ninformation is Protected Information, whether in verbal form, machine-readable form, written or other tangible form, and whether designated as confidential or\nunmarked. Without limiting the foregoing, Protected Information includes information relating to NIKE's research and development activities, its intellectual\nproperty and the filing or pendency of patent applications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor\nlists, contract factory lists, pricing information, manufacturing plans, business and marketing plans, sales information, methods of operation, manufacturing\nprocesses and methods, products, and personnel information. (b) Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any\ninformation that is or becomes part of the public domain through no act or failure to act on the part of EMPLOYEE. Specifically, employees shall be permitted to\nretain as part of their personal portfolio copies of the employees' original artwork and designs, provided the artwork or designs have become part of the public\ndomain. In any dispute between the parties with respect to this exclusion, the burden of proof will be on EMPLOYEE and such proof will be by clear and\nconvincing evidence. (c) Employee's Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter, EMPLOYEE will hold in\nconfidence and protect all Protected Information and will not, at any time, directly or indirectly, use any Protected Information for any purpose outside the scope of\nEMPLOYEE's employment with NIKE or disclose any Protected Information to any third person or organization without the prior written consent of NIKE.\nSpecifically, but not by way of limitation, EMPLOYEE will not ever copy, transmit, reproduce, summarize, quote, publish or make any commercial or other use\nwhatsoever of any Protected Information without the prior written consent of NIKE. EMPLOYEE will also take reasonable security precautions and such other\nactions as may be necessary to insure that there is no use or disclosure, intentional or inadvertent, of Protected Information in violation of this Agreement. 4 .\nRETURN OF PROTECTED INFORMATION. At the request of NIKE at anytime, and in any event, upon termination of employment, EMPLOYEE shall\nimmediately return to NIKE all confidential documents, including tapes, notebooks, drawings, computer disks and other similar repositories of or containing\nProtected Information, and all copies thereof, then in EMPLOYEE's possession or under EMPLOYEE's control. 5 . UNAUTHORIZED USE. During the period of\nemployment with NIKE and thereafter, EMPLOYEE will notify NIKE immediately if EMPLOYEE becomes aware of the unauthorized possession, use or\nknowledge of any Protected Information by any person employed or not employed by NIKE at the time of such possession, use or knowledge. EMPLOYEE will\ncooperate with NIKE in the investigation of any such incident and will cooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect\nthe Protected Information. NIKE shall provide reasonable reimbursement to EMPLOYEE for each hour so engaged and that amount shall not be diminished by\noperation of any payment under Paragraph 1(d) of this Agreement. 6. NON -RECRUITMENT. During the term of this Agreement and for a period of one (1) year\nthereafter, EMPLOYEE will not directly or indirectly , solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other company or\nbusiness organization, any NIKE employee, whether or not such employee is a full-time employee or temporary employee and whether or not such employment is\npursuant to a written agreement or is at will. 7. ACCOUNTING OF PROFITS . EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement,\nNIKE shall be entitled to an accounting and repayment of all profits, compensation, commissions, remuneration or benefits which EMPLOYEE directly or indirectly\nhas realized and/or may realize as a result of or in connection with any such violation (including the return of any additional consideration paid by NIKE pursuant\nto Paragraph 1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or remedies to which NIKE may be\nentitled at law or in equity. 8. GENERAL PROVISIONS . (a) SURVIVAL. This Agreement shall continue in effect after the termination of EMPLOYEE's\nemployment, regardless of the reason for termination. (b) WAIVER. No waiver, amendment, modification or cancellation of any term or condition of this\nAgreement will be effective unless executed in writing by both parties. No written waiver will excuse the performance of any act other than the act or acts\nspecifically referred to therein.. (c) SEVERABILITY. Each provision herein will be treated as a separate and independent clause and unenforceability of any one\nclause will in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be found to be unreasonable or invalid by a\ncourt of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of that jurisdiction. (d) APPLICABLE\nLAW/JURISDICTION. This Agreement, and EMPLOYEE's employment hereunder, shall be construed according to the laws of the State of Oregon. EMPLOYEE\nfurther hereby submits to the jurisdiction of, and agrees that exclusive jurisdiction over and venue for any action or proceeding arising out of or relating to this\nAgreement shall lie in the state and federal courts located in Oregon. EMPLOYEE NIKE , Inc. /s/ Mindy Grossman By /s/ Lindsay D. Stewart --------------------\n-- --- -- --- -- --- -- --- -- -- - Name: Lindsay D. Stewart DATE 9-7-00 Title: Vice President ----------------	EX-10.12 4 v83383orexv10w12.txt EXHIBIT 10.12 COVE NANT NOT TO COM P ETE AN D NON-DISC LOSU RE AGREE M E NT PARTIES: Mindy Grossman\n(EMPLOYEE) and NIKE, Inc., and its divisions, subsidiaries and affiliates. (NIKE): RECITALS: A. This Covenant Not to Compete and Non-Disclosure Agreement\nis executed upon initial employmentor upon the E M P LOYE E's advancement with N IKE and is a condition ofsuch employment or advancement. B. Over the\ncourse of E M P LOYE E's employmentwilh N IKE, EM PLOYE E will be or has been exposed to and/or is in a position to develop confidential information peculiar to\nNIKE '5 business and notgenerally known to the public as defined below ("Protected Information"). It is anticipated that E M P LOYE E will continue to be exposed to\nProtected Information ofgreater sensitivity as E M P LOYE E advances in Ihe company. C. The nature of N IKE '5 business is highly competitive and disclosure of\nany Protected Information would result in severe damage to NIKE and be difficult to measure. D. NIKE makes use ofits Protective Information Ihroughoutlhe\nworld. Protective Information of N IKE can be used to N IKE's detriment anywhere in Ihe world. AGRE EM E NT: In consideration of the foregoing, and the terms and\nconditions set forth below, Ihe parties agree as follows: 1. COVENANT NOT TO COMPETE. (a) COMPETITION RESTRICTION. During EMPLOYEE's\nemployment by N IKE, under the terms of any employment contract or oIhenNise, and for one year Ihereafter, (the "Restriction Period"), E M PLOYE E will not\ndirectly or indirectly, own, manage, control, or participate in the ownership, managementor control of, or be employed by, consult for, or be connected in any\nmanner with, any business engaged anywhere in the world in the athletic footwear, thletic apparel or sports equipment and accessories business, or any other\nbusiness which directly competes wilh N IKE or any of its parent, subsidiaries or affiliated corporations ("Competitor"). BY WAY OF ILLUSTRATION ONLY,\nexamples of NIKE competitors include, butare notlimited to: Adidas, FILA, Reebok, Puma, Champion, Oakley, DKNY, Converse, Asics, Saucony, New Balance,\nB.U.M, FUBU, The Gap, Tommy Hilfiger, Umbro, Northface, Venator (Footlockers), SporIs Athority, Columbia Sportswear, Wilson, Mizuno, Callaway Golfand\nTineist. This provision is subject to NIKE's option to waive all or any portion of the Restriction Period as more specifically provided below. (b) EXTE NSION OF\nTIM E. In Ihe event E M P LOYE E breaches Ihis covenant not to compete, Ihe Restriction Period shall automatically toll from Ihe date ofthe first breach, and all\nsubsequent breaches, until the resolution ofthe breach through private settlement, judicial or other action, including all appeals. The Restriction Period shall\ncontinue upon Ihe effective date of any such sethementjudicial or other resolution. N IKE shall not be obligated to pay EM PLOYE E the additional compensation\ndescribed in paragraph 1(d) below during any period of time in which Ihis Agreement is tolled due to E M P LOYE E's breach. In Ihe event E M P LOYE E receives\nsuch additional compensation pursuant to paragraph 1(d) below after any such breach, E M PLOYE E must immediately reimburse NIKE in the amountof all such\ncompensation upon the receipt of a written requestby NIKE. (c) WAIVER OF NON-COMPETE. NIKE has the option, in its sole discretion, to electto waive all or a\nportion of Ihe Restriction Period or to limit Ihe definition ofCompetitor, by giving E M P LOYEE seven (7) days prior notice of such election. In the event all or a\nportion of Ihe Restriction Period is waived, N IKE shall not be obligated to pay E M P LOYE E for any period of time as to which the covenant notto compete has\nbeen waived. (d) ADDITIONAL CONSIDE RATION. As additional consideration for Ihe covenant not to compete described above, if after termination of\nE M PLOYE E's employment for any reason, N IKE elects to enforce Ihe non-competition agreement, N IKE shall pay E M P LOYE E a monIhly paymentequal to one\nhundred percent (100%) of E M P LOYE E's last monthly base salary while the Restriction Period is in effect. The first payment to E M P LOYE E of additional\nconsideration shall follow on the next applicable pay period after the election to enforce the non-competition agreement, payable in accordance with NIKE 's\npayroll practices. 2. SU BS EOU E NT E M P LOY E R. E M P LOY E E agrees to notify NIKE at the time of separation of employment of Ihe name of E M P LOY E E's new\nemployer, if known. EM PLOYE E futher agrees to disclose to NIKE the name of any subsequentemployer during the Restriction Period, wherever located and\nregardless ofwhether such employer is a competitor of N IKE. 3. NON-DISC LOSURE AGRE E M ENT. (a) P ROTECTABLE IN FORMATION DEFINE D. "Protected\nInformation" shall mean all proprietary information, in whateverform and format, of NIKE and all information provided to NIKE by third parties which NIKE is\nobligated to keep confidential. E M P LOYE E agrees Ihat any and all information to which E M P LOYE E has access concerning N IKE projecIs and internal NIKE\ninformation is Protected Information, wheIher in verbal form, machine-readable form, written or other tangible form, and wheIher designated as confidential or\nunmarked. WiIhout limiting Ihe foregoing, Protected Information includes information relating to NIKE's research and developmentactivities, its intellectual\nproperty and the filing or pendency of patent applications, confidential techniques, methods, styles, designs, design concepIs and ideas, customer and vendor\nlists, contract factory lisIs, pricing information, manufacturing plans, business and marketing plans, sales information, meIhods ofoperation, manufacturing\nprocesses and methods, products, and personnel information. (b) Excluded Information. Notwilhstanding paragraph 3(a), Protected Information excludes any\ninformation that is or becomes part of the public domain through no actor failure to act on the part of EM P LOYE E. Specifically, employees shall be permitted to\nretain as part of Iheir personal portfolio copies ofthe employees' original artwork and designs, provided the artwork or designs have become part of Ihe public\ndomain. In any dispute between Ihe parties wilh respect to this exclusion, the burden of proofwill be on E M P LOYE E and such proofwill be by clear and\nconvincing evidence. (c) Employee's Obligations. During the period of employment by N IKE and for a period oftwo (2) years thereafter, EM P LOYE E will hold in\nconfidence and protect all Protected Information and will not, at any time, direcij or indirectly, use any Protected Information for any purpose ouIside the scope of\nE M PLOYE E's employment with N IKE or disclose any Protected Information to any third person or organization wilhout the prior written consentof NIKE.\nSpecifically, but not by way of limitation, E M P LOYE E will not ever copy, transmit, reproduce, summarize, quote, publish or make any commercial or olher use\nwhatsoever of any Protected Information withoutthe prior written consentof N IKE. E M P LOYEE will also take reasonable security precautions and such olher\nactions as may be necessary to insure that Ihere is no use or disclosure, intentional or inadvertent, of Protected Information in violation of Ihis Agreement. 4.\nRETURN OF PROTECTED INFORMATION. Atthe request of NIKE at anytime, and in any event, upon termination ofemployment, EMPLOYEE shall\nimmediately return to N IKE all confidential documents, including tapes, notebooks, drawings, computer disks and olher similar repositories ofor containing\nP rotected Information, and all copies Ihereof, then in E M P LOY E E's possession or under E M P LOY E E's control. 5. U NAUTHO RIZE D U S E. During the period of\nemployment with NIKE and thereafter, E M P LOYE E will notify NIKE immediately if E M P LOYE E becomes aware of the unauthorized possession, use or\nknowledge of any Protected Information by any person employed or not employed by NIKE atthe time of such possession, use or knowledge. E M P LOYEE will\ncooperate with NIKE in the investigation of any such incident and will cooperate wilh N IKE in any litigation with Ihird parties deemed necessary by N IKE to protect\nIhe Protected Information. NIKE shall provide reasonable reimbursementto EMPLOYEE for each hour so engaged and thatamountshall not be diminished by\noperation of any payment under Paragraph 1(d) of this Agreement. 6. NON-RECRUITM E NT. During the term ofthis Agreement and for a period ofone (1) year\nIhereafter, E M P LOY E E will not directly or indirectly , solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other company or\nbusiness organization, any N IKE employee, whether or notsuch employee is a full-time employee or temporary employee and wheIher or notsuch employment is\npursuantto a written agreement or is atwill. 7. ACCOUNTING OF P ROFITS. E M P LOYEE agrees that, if E M P LOYE E should violate any term of this Agreement,\nNIKE shall be entitled to an accounting and repaymentof all profiIs, compensation, commissions, remuneration or benefiIs which E M P LOYEE direcij or indirectly\nhas realized and/or may realize as a resultofor in connection with any such violation (including the return of any additional consideration paid by NIKE pursuant\nto Paragraph 1(d) above). Such remedy shall be in addition to and notin limitation ofany injunctive reliefor other rights or remedies to which NIKE may be\nentitled at law or in equity. 8. G E N E RAL P ROVIS IO NS. (a) SU RVIVAL. This Agreement shall continue in effect after Ihe termination of E M P LOY E E's\nemployment, regardless of Ihe reason for termination. (b) WAIVE R. No waiver, amendment, modification or cancellation of any term or condition of Ihis\nAgreementwill be effective unless executed in writing by boIh parties. No written waiver will excuse Ihe performance of any actolher than Ihe actor acIs\nspecifically referred to therein.. (c) SEVERABILITY. Each provision herein will be treated as a separate and independentclause and unenforceability of any one\nclause will in no way impactthe enforceability of any other clause. Should any of the provisions in Ihis Agreement be found to be unreasonable or invalid by a\ncourt of competentjurisdiction, such provision will be enforceable to the maximum extentenforceable by Ihe law ofthatjurisdiction. (d) AP P LICABLE\nLAW/J URISDICTION. This Agreement, and E M P LOYE E's employment hereunder, shall be construed according to the laws ofthe State of Oregon. E M P LOYEE\nfurther hereby submits to the jurisdiction of, and agrees that exclusive jurisdiction over and venue for any action or proceeding arising outofor relating to this\nAgreementshall lie in the state and federal courts located in Oregon. EMPLOYEE NIKE, Inc. /s/ Mindy Grossman By/s/ Lindsay D. Stewart --------------------\n------------------------- Name: Lindsay D. Stewart DATE 9-7-00 Title: Vice President----------------	EX-10.12 4 v83383orexv10w12.b EXHIBIT 10.12 COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT PARTIES: Mindy Grossman\n(EMPLOYEE) and NIKE, Inc., and its divisions, subsidiaries and affiliates. (NIKE): RECITALS: A. This Covenant Not to Compete and Non-Disclosure Agreement\nis executed upon initial employment or upon the EMPLOYEE'S advancement with NIKE and is a condition of such employment or advancement. B. ver the\ncourse of EMPLOYEE's employment with NIKE, EMPLOYEE will be or has been exposed to and/or is in a position to develop confidential information peculiar\nto\nNIKE's business and not generally known to the public as defined below "Protected Information"). It is anticipated that EMPLOYEE will continue to be exposed to\nProtected Information of greater sensitivity as EMPLOYEE advances in the company. C. The nature of NIKE's business is highly competitive and disclosure\nof\nany Protected Information would result in severe damage to NIKE and be difficult to measure. D. NIKE makes use of its Protective Information throughout the\nworld. rotective Information of NIKE can be used to NIKE's detriment anywhere in the world. AGREEMENT: In consideration of the foregoing, and the terms and\nconditions set forth below, the parties agree as follows: 1. COVENANT NOT TO COMPETE. (a) COMPETITION RESTRICTION. During EMPLOYEE's\nemployment by NIKE, under the terms of any employment contract or otherwise, and for one year thereafter, (the "Restriction Period"), EMPLOYEE will not\ndirectly or indirectly, own, manage, control, or participate in the ownership, management or control of, or be employed by, consult for, or be connected in any\nmanner with, any business engaged anywhere in the world in the athletic footwear, athletic apparel or sports equipment and accessories business, or any other\nbusiness which directly competes with NIKE or any of its parent, subsidiaries or affiliated corporations ("Competitor"). BY WAY OF ILLUSTRATION ONLY,\nexamples of NIKE competitors include, but are not limited to: Adidas FILA, Reebok, Puma, Champion, Oakley, DKNY, Converse, Asics, Saucony, New Balance,\nB.U.M, FUBU, The Gap, Tommy Hilfiger, Umbro, Northface, Venator (Footlockers), Sports Authority, Columbia s portswear, Wilson, Mizuno, Callaway Golf and\nTitleist. This provision is subject to NIKE's option to waive all or any portion of the estriction Period as more specifically provided below. (b) EXTENSION OF\nTIME. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period shall automatically toll from the date of the first breach, and\nall\nsubsequent breaches, unti the resolution of the breach through private settlement, judicia or other action, including all appeals. The Restriction Period shall\ncontinue upon the effective date of any such settlement judicial or other resolution. NIKE shall not be obligated to pay EMPLOYEE the additional compensation\ndescribed in paragraph 1(d) below during any period of time in which this Agreement is tolled due to EMPLOYEE's breach. In the event EMPLOYEE receives\nsuch additional compensation pursuant to paragraph 1(d) below after any such breach, EMPLOYEE must immediately reimburse NIKE in the amount of all such\ncompensation upon the receipt of a written request by NIKE (c) WAIVER OF NON-COMPETE. NIKE has the option, in its sole discretion, to elect to waive all or\na\nportion of the Restriction eriod or to limit the definition of Competitor, by giving EMPLOYEE seven (7) days prior notice of such election. In the event all or\na\nportion of the Restriction Period is waived, NIKE shall not be obligated to pay EMPLOYEE for any period of time as to which the covenant not to compete has\nbeen waived. (d) ADDITIONAL CONSIDERATION. As additional consideration for the covenant not to compete described above, if after termination of\nEMPLOYEE's employment for any reason, NIKE elects to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a monthly payment equal to one\nhundred percent (100%) of EMPLOYEE'S last monthly base salary while the Restriction Period is in effect. The first payment to EMPLOYEE of additional\nconsideration shall follow on the next applicable pay period after the election to enforce the non-competition agreement, payable in accordance with NIKE'S\npayroll practices. 2. SUBSEQUENT EMPLOYER. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name of EMPLOYEE's new\nemployer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any subsequent employer during the Restriction eriod, wherever located and\nregardless of whether such employer is a competitor of NIKE. 3. NON-DISCLOSURE AGREEMENT. (a) PROTECTABLE INFORMATION DEFINED. Protected\nInformation" shall mean all proprietary information, in whatever form and format, of NIKE and all information provided to NIKE by third parties which NIKE is\nobligated to keep confidential EMPLOYEE agrees that any and all information to which EMPLOYEE has access concerning NIKE projects and interna NIKE\ninformation is Protected Information, whether in verbal form, machine-readable form, written or other tangible form, and whether designated as confidential\nor\nunmarked. Without limiting the foregoing, rotected Information includes information relating to NIKE's research and development activities, its intellectual\nproperty and the filing or pendency of patent applications, confidential techniques, methods, styles, designs, design concepts and ideas customer and vendor\nlists, contract factory lists, pricing information, manufacturing plans, business and marketing plans, sales information, methods of operation, manufacturing\nprocesses and methods, products, and personnel information. (b) Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any\ninformation that is or becomes part of the public domain through no act or failure to act on the part of EMPLOYEE. pecifically, employees shall be permitted to\nretain as part of their personal portfolio copies of the employees' original artwork and designs, provided the artwork or designs have become part of the public\ndomain. In any dispute between the parties with respect to this exclusion, the burden of proof will be on EMPLOYEE and such proof will be by clear and\nconvincing evidence. (c) Employee's Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter, EMPLOYEE will hold in\nconfidence and protect all Protected Information and wil not, at any time, directly or indirectly, use any rotected Information for any purpose outside the scope of\nEMPLOYEE's employment with NIKE or disclose any Protected Information to any third person or organization without the prior written consent of NIKE.\npecifically, but not by way of limitation, EMPLOYEE will not ever copy, transmit, reproduce, summarize, quote, publish or make any commercial or other\nuse\nwhatsoever of any Protected Information without the prior written consent of NIKE. EMPLOYEE wil also take reasonable security precautions and such other\nactions as may be necessary to insure that there is no use or disclosure, intentional or inadvertent, of Protected Information in violation of this Agreement 4.\nRETURN OF PROTECTED INFORMATION. At the request of NIKE at anytime, and in any event upon termination of employment, EMPLOYEE shall\nimmediately return to NIKE all confidential documents, including tapes, notebooks, drawings, computer disks and other similar repositories of or containing\nProtected Information, and all copies thereof, then in EMPLOYEE'S possession or under EMPLOYEE's control. 5. UNAUTHORIZED USE. During the period of\nemployment with NIKE and thereafter, EMPLOYEE will notify NIKE immediately if EMPLOYEE becomes aware of the unauthorized possession, use or\nknowledge of any Protected Information by any person employed or not employed by NIKE at the time of such possession, use or knowledge. EMPLOYEE wil\ncooperate with NIKE in the investigation of any such incident and wil cooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect\nthe\nProtected Information. NIKE shall provide reasonable reimbursement to EMPLOYEE for each hour so engaged and that amount shall not be diminished by\noperation of any payment under Paragraph 1(d) of this Agreement. 6. NON-RECRUITMENT. During the term of this Agreement and for a period of one (1) year\nthereafter, EMPLOYEE will not directly or indirectly solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other company or\nbusiness organization, any NIKE employee, whether or not such employee is a full-time employee or temporary employee and whether or not such employment\nis\npursuant to a written agreement or is at will. 7. ACCOUNTING OF PROFITS. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement,\nNIKE shal be entitled to an accounting and repayment of all profits, compensation, commissions, remuneration or benefits which EMPLOYEE directly or indirectly\nhas realized and/or may realize as a result of or in connection with any such violation (including the return of any additional consideration paid by NIKE pursuant\nto Paragraph 1(d) above). uch remedy shall be in addition to and not in limitation of any injunctive relief or other rights or remedies to which NIKE may be\nentitled at law or in equity. 8. GENERAL PROVISIONS. (a) SURVIVAL. This Agreement shall continue in effect after the termination of EMPLOYEE'S\nemployment, regardless of the reason for termination. (b) WAIVER. No waiver, amendment, modification or cancellation of any term or condition of this\nAgreement will be effective unless executed in writing by both parties. No written waiver will excuse the performance of any act other than the act or acts\nspecifically referred to therein. (c) SEVERABILITY. Each provision herein will be treated as a separate and independent clause and unenforceability of\nany\none\nclause will in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be found to be unreasonable or invalid by a\ncourt of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of that jurisdiction. (d) PPLICABLE\nLAW/J URISDICTION. This Agreement, and EMPLOYEE's employment hereunder, shall be construed according to the laws of the State of Oregon. EMPLOYEE\nfurther hereby submits to the jurisdiction of, and agrees that exclusive jurisdiction over and venue for any action or proceeding arising out of or relating to this\nAgreement shall lie in the state and federal courts located in Oregon EMPLOYEE NIKE, Inc. /s/ Mindy Grossman By /s/ Lindsay\nD.\nStewart\nName: Lindsay D. Stewart DATE 9-7-00 Title: Vice President	EX-10 .12 4 v83383orexv10w12.txt EXHIBIT 10.12 COVENANT NOT TO COMPETE AND NON -DISCLOSURE AGREEMENT PARTIES: Mindy Grossman\n(EMPLOYEE) and NIKE, Inc. , and its divisions, subsidiaries and affiliates. (NIKE): RECITALS: A. This Covenant Not to Compete and Non-Disclosure Agreement\nis executed upon initial employment or upon the EMPLOYEE's advancement with NIKE and is a condition of such employment or advancement. B . Over the\ncourse of EMPLOYEE's employment with NIKE, EMPLOYEE will be or has been exposed to and/or is in a position to develop confidential information peculiar to\nNIKE's business and not generally known to the public as defined below ("Protected Information"). It is anticipated that EMPLOYEE will continue to be exposed to\nProtected Information of greater sensitivity as EMPLOYEE advances in the company. C. The nature of NIKE's business is highly competitive and disclosure of\nany Protected Information would result in severe damage to NIKE and be difficult to measure. D . NIKE makes use of its Protective Information throughout the\nworld. Protective Information of NIKE can be used to NIKE's detriment anywhere in the world. AGREEMENT: In consideration of the foregoing, and the terms and\nconditions set forth below, the parties agree as follows: 1. COVENANT NOT TO COMPETE . (a) COMPETITION RESTRICTION. During EMPLOYEE's\nemployment by NIKE, under the terms of any employment contract or otherwise, and for one year thereafter, (the "Restriction Period"), EMPLOYEE will not\ndirectly or indirectly, own, manage, control, or participate in the ownership, management or control of, or be employed by, consult for, or be connected in any\nmanner with, any business engaged anywhere in the world in the athletic footwear, athletic apparel or sports equipment and accessories business, or any other\nbusiness which directly competes with NIKE or any of its parent, subsidiaries or affiliated corporations ("Competitor"). BY WAY OF ILLUSTRATION ONLY ,\nexamples of NIKE competitors include, but are not limited to: Adidas, FILA , Reebok, Puma, Champion, Oakley, DKNY , Converse, Asics, Saucony, New Balance,\nB.U .M, FUBU , The Gap, Tommy Hilfiger, Umbro, Northface, Venator (Footlockers), Sports Authority, Columbia Sportswear, Wilson, Mizuno, Callaway Golf and\nTitleist. This provision is subject to NIKE's option to waive all or any portion of the Restriction Period as more specifically provided below. (b) EXTENSION OF\nTIME. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period shall automatically toll from the date of the first breach, and all\nsubsequent breaches, until the resolution of the breach through private settlement, judicial or other action, including all appeals. The Restriction Period shall\ncontinue upon the effective date of any such settlement judicial or other resolution. NIKE shall not be obligated to pay EMPLOYEE the additional compensation\ndescribed in paragraph 1(d) below during any period of time in which this Agreement is tolled due to EMPLOYEE's breach. In the event EMPLOYEE receives\nsuch additional compensation pursuant to paragraph 1(d) below after any such breach, EMPLOYEE must immediately reimburse NIKE in the amount of all such\ncompensation upon the receipt of a written request by NIKE. (c) WAIVER OF NON-COMPETE . NIKE has the option, in its sole discretion, to elect to waive all or a\nportion of the Restriction Period or to limit the definition of Competitor, by giving EMPLOYEE seven (7) days prior notice of such election. In the event all or a\nportion of the Restriction Period is waived, NIKE shall not be obligated to pay EMPLOYEE for any period of time as to which the covenant not to compete has\nbeen waived. (d) ADDITIONAL CONSIDERATION. As additional consideration for the covenant not to compete described above, if after termination of\nEMPLOYEE's employment for any reason, NIKE elects to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a monthly payment equal to one\nhundred percent (100%) of EMPLOYEE's last monthly base salary while the Restriction Period is in effect. The first payment to EMPLOYEE of additional\nconsideration shall follow on the next applicable pay period after the election to enforce the non-competition agreement, payable in accordance with NIKE's\npayroll practices. 2. SUBSEQUENT EMPLOYER. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name of EMPLOYEE's new\nemployer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any subsequent employer during the Restriction Period, wherever located and\nregardless of whether such employer is a competitor of NIKE. 3. NON -DISCLOSURE AGREEMENT. (a) PROTECTABLE INFORMATION DEFINED. "Protected\nInformation" shall mean all proprietary information, in whatever form and format, of NIKE and all information provided to NIKE by third parties which NIKE is\nobligated to keep confidential. EMPLOYEE agrees that any and all information to which EMPLOYEE has access concerning NIKE projects and internal NIKE\ninformation is Protected Information, whether in verbal form, machine-readable form, written or other tangible form, and whether designated as confidential or\nunmarked. Without limiting the foregoing, Protected Information includes information relating to NIKE's research and development activities, its intellectual\nproperty and the filing or pendency of patent applications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor\nlists, contract factory lists, pricing information, manufacturing plans, business and marketing plans, sales information, methods of operation, manufacturing\nprocesses and methods, products, and personnel information. (b) Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any\ninformation that is or becomes part of the public domain through no act or failure to act on the part of EMPLOYEE. Specifically, employees shall be permitted to\nretain as part of their personal portfolio copies of the employees' original artwork and designs, provided the artwork or designs have become part of the public\ndomain. In any dispute between the parties with respect to this exclusion, the burden of proof will be on EMPLOYEE and such proof will be by clear and\nconvincing evidence. (c) Employee's Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter, EMPLOYEE will hold in\nconfidence and protect all Protected Information and will not, at any time, directly or indirectly, use any Protected Information for any purpose outside the scope of\nEMPLOYEE's employment with NIKE or disclose any Protected Information to any third person or organization without the prior written consent of NIKE.\nSpecifically, but not by way of limitation, EMPLOYEE will not ever copy, transmit, reproduce, summarize, quote, publish or make any commercial or other use\nwhatsoever of any Protected Information without the prior written consent of NIKE. EMPLOYEE will also take reasonable security precautions and such other\nactions as may be necessary to insure that there is no use or disclosure, intentional or inadvertent, of Protected Information in violation of this Agreement. 4 .\nRETURN OF PROTECTED INFORMATION. At the request of NIKE at anytime, and in any event, upon termination of employment, EMPLOYEE shall\nimmediately return to NIKE all confidential documents, including tapes, notebooks, drawings, computer disks and other similar repositories of or containing\nProtected Information, and all copies thereof, then in EMPLOYEE's possession or under EMPLOYEE's control. 5 . UNAUTHORIZED USE. During the period of\nemployment with NIKE and thereafter, EMPLOYEE will notify NIKE immediately if EMPLOYEE becomes aware of the unauthorized possession, use or\nknowledge of any Protected Information by any person employed or not employed by NIKE at the time of such possession, use or knowledge. EMPLOYEE will\ncooperate with NIKE in the investigation of any such incident and will cooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect\nthe Protected Information. NIKE shall provide reasonable reimbursement to EMPLOYEE for each hour so engaged and that amount shall not be diminished by\noperation of any payment under Paragraph 1(d) of this Agreement. 6. NON -RECRUITMENT. During the term of this Agreement and for a period of one (1) year\nthereafter, EMPLOYEE will not directly or indirectly , solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other company or\nbusiness organization, any NIKE employee, whether or not such employee is a full-time employee or temporary employee and whether or not such employment is\npursuant to a written agreement or is at will. 7. ACCOUNTING OF PROFITS . EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement,\nNIKE shall be entitled to an accounting and repayment of all profits, compensation, commissions, remuneration or benefits which EMPLOYEE directly or indirectly\nhas realized and/or may realize as a result of or in connection with any such violation (including the return of any additional consideration paid by NIKE pursuant\nto Paragraph 1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or remedies to which NIKE may be\nentitled at law or in equity. 8. GENERAL PROVISIONS . (a) SURVIVAL. This Agreement shall continue in effect after the termination of EMPLOYEE's\nemployment, regardless of the reason for termination. (b) WAIVER. No waiver, amendment, modification or cancellation of any term or condition of this\nAgreement will be effective unless executed in writing by both parties. No written waiver will excuse the performance of any act other than the act or acts\nspecifically referred to therein.. (c) SEVERABILITY. Each provision herein will be treated as a separate and independent clause and unenforceability of any one\nclause will in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be found to be unreasonable or invalid by a\ncourt of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of that jurisdiction. (d) APPLICABLE\nLAW/JURISDICTION. This Agreement, and EMPLOYEE's employment hereunder, shall be construed according to the laws of the State of Oregon. EMPLOYEE\nfurther hereby submits to the jurisdiction of, and agrees that exclusive jurisdiction over and venue for any action or proceeding arising out of or relating to this\nAgreement shall lie in the state and federal courts located in Oregon. EMPLOYEE NIKE , Inc. /s/ Mindy Grossman By /s/ Lindsay D. Stewart --------------------\n-- --- -- --- -- --- -- --- -- -- - Name: Lindsay D. Stewart DATE 9-7-00 Title: Vice President ----------------
b110d1e6157e7704f7da51ffbcb77307.pdf	effective_date jurisdiction party term	SCHEDULE 4\nTO MANUFACTURING SERVICES AGREEMENT\nBETWEEN JABIL AND COMPANY\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), effective as of the date set forth last below, is made by and between the\nundersigned counter party (the “Counter Party”) and iROBOT CORPORATION (“iROBOT”). In consideration of the mutual agreements and other\nprovisions of this Agreement, the parties hereto agree as follows:\n1 Scope of Proprietary Information.\n1.1 “Proprietary Information” means, subject to the exceptions set forth in Section 1.2 hereof, any information or data, regardless of whether it is in\ntangible form, that is disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) and that (a) the Disclosing Party has\nmarked as confidential or proprietary, or (b) the Disclosing Party identifies as confidential or proprietary at the time of disclosure with written\nconfirmation within thirty (30) days of disclosure to the Receiving Party, provided, however, that:\n1.1.1 Reports and/or information related to or regarding the Disclosing Party’s business plans, business methodologies, strategies, specifications,\ndevelopment plans, customers, and/or billing records will be deemed Proprietary Information of the Disclosing Party even if not so marked or\nidentified.\n1.1.2 Prototypes, mockups, models, designs, project deliverables, and/or depictions thereof, observed within or upon the Disclosing Party’s business\npremises will be deemed Proprietary Information of the Disclosing Party even if not so marked or identified.\n1.2 “Proprietary Information” shall not include any information which: (a) the Receiving Party can show by written record was in its possession prior\nto disclosure by the Disclosing Party hereunder, provided that the Receiving Party must promptly notify the Disclosing Party of any prior knowledge\nin the manner provided in Section 5 below; (b) appears in a patent or publication, or which otherwise is or becomes generally known in the trade other\nthan through the Receiving Party’s failure to observe any or all terms and conditions hereof; provided that the foregoing shall not be interpreted to\ncreate any express or implied license, or the right to obtain a license, to any patents which may be issued to the Disclosing Party; or (c) subsequent to\ndisclosure to the Receiving Party by the Disclosing Party, is obtained by the Receiving Party from a third person who is lawfully in possession of such\ninformation, and who is not in violation of any contractual, legal or fiduciary obligations to the Disclosing Party in making such disclosure to the\nReceiving Party and does not require the Receiving Party to refrain from disclosing such information to others.\n2 Use and Disclosure of Proprietary Information.\n2.1 The Receiving Party may only use the Proprietary Information for the purpose of evaluating or operating pursuant to a business relationship or\npotential business relationship between the Receiving Party and the Disclosing Party (the “Permitted Purpose”). The Receiving Party must keep secret\nand shall not disclose, publish, divulge, furnish or make accessible to anyone any of the Proprietary Information of the Disclosing Party, other than\nfurnishing such Proprietary Information to the Receiving Party’s employees, agents, representatives, consultants and contractors who are required to\nhave access to such Proprietary Information in connection with the Permitted Purpose during the time that the Receiving Party is permitted to retain\nsuch Proprietary Information hereunder; provided that such persons are bound by written agreements respecting the Proprietary Information in the\nmanner set forth in this Agreement.\n2.2 The Receiving Party shall not embody any of the Proprietary Information of the Disclosing Party in any of the Receiving Party’s products,\nprocesses or services, or duplicate, copy or exploit any of such Proprietary Information in the Receiving Party’s business, or otherwise use any of the\nProprietary Information for any purpose other than for the Permitted Purpose.\nPortions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company’s\napplication requesting confidential treatment under Rule 24b-2 of the Exchange Act — [*] denotes omissions.\n2.3 The Receiving Party shall use the equivalent of measures that the Receiving Party uses to protect the Receiving Party’s own proprietary\ninformation, but in no event less than reasonable care and adequate measures, to protect the security of the Proprietary Information of the Disclosing\nParty and to ensure that any Proprietary Information of the Disclosing Party is not disclosed or otherwise made available to other persons or used in\nviolation of this Agreement.\n2.4 In the event that the Receiving Party is required by law to make any disclosure of any of the Proprietary Information of the Disclosing Party, by\nsubpoena, judicial or administrative order or otherwise, the Receiving Party shall first give written notice of such requirement to the Disclosing Party,\nand shall permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in the Proprietary Information, and provide full\ncooperation and assistance to the Disclosing Party in seeking to obtain such protection.\n3 Certain Rights and Limitations.\n3.1 The Receiving Party will provide upon the Disclosing Party’s request a certification that access and use is being controlled in accordance with this\nAgreement.\n3.2 The provision of Proprietary Information hereunder shall not transfer any right, title or interest in such information to Receiving Party. Disclosing\nParty does not grant any express or implied right to Receiving Party to or under Disclosing Party’s patents, copyrights, trademarks, trade secret\ninformation or other proprietary rights.\n3.3 All tangible embodiments of the Proprietary Information of the Disclosing Party (e.g., drawings, memoranda and notes) and all copies thereof,\nwhether in hard-copy or machine-readable form and whether supplied by the Disclosing Party or made by or for the Receiving Party (collectively, the\n“Tangible Embodiments”), shall at all times be and remain the property of the Disclosing Party.\n3.4 The Receiving Party shall not reverse-engineer, decompile, or disassemble any software or firmware disclosed or provided to it under this\nAgreement and shall not remove, overprint or deface any notice of confidentiality, copyright, trademark, logo, legend or other notices of ownership or\nconfidentiality from any originals or copies of Proprietary Information it obtains from the Disclosing Party.\n4 Remedies. Receiving Party acknowledges that a breach by it of any of the terms of this Agreement would cause irreparable harm to the Disclosing\nParty for which Disclosing Party could not be adequately compensated by money damages. Accordingly, Receiving Party agrees that, in addition to\nall other remedies available to Disclosing Party in an action at law, in the event of any breach or threatened breach by the Receiving Party of the terms\nof this Agreement, the Disclosing Party shall, without the necessity of proving actual damages or posting any bond or other security, be entitled to\ntemporary and permanent injunctive relief, including, but not limited to, specific performance of the terms of this Agreement.\n5 Notice of Independent Knowledge or Breach. The Receiving Party agrees to notify the Disclosing Party promptly in writing if (a) upon disclosure\nof Proprietary Information by the Disclosing Party, the Receiving Party has prior knowledge of the same; or (b) subsequent to disclosure of any\nProprietary Information by the Disclosing Party, information is disclosed to the Receiving Party in a manner described in Section 1.2 or (c) the\nReceiving Party becomes aware of any breach of this Agreement with respect to the Proprietary Information of the Disclosing Party in the Receiving\nParty’s possession.\n6 Termination.\n6.1 Notice and Effect of Termination. This Agreement shall remain in effect until it is terminated by either party with thirty (30) days prior written\nnotice. The terms and conditions of this Agreement shall survive any such termination with respect to Proprietary Information that is disclosed prior\nto the effective date of such termination for a period of [*] from the date of termination.\n6.2 Return of Proprietary Information. Upon the earlier of (a) the termination of this Agreement, (b) Disclosing Party’s written request or (c) such\ntime as the Receiving Party no longer requires the Proprietary Information for the Permitted Purpose, Receiving Party agrees to promptly return to\nDisclosing Party or destroy all Proprietary Information and any Tangible Embodiments that are in the possession of Receiving Party and to certify the\nreturn or destruction of all such Proprietary Information and embodiments.\nPortions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company’s\napplication requesting confidential treatment under Rule 24b-2 of the Exchange Act — [*] denotes omissions.\n7 Warranty. Disclosing Party warrants that it has the right to make the disclosures under this Agreement. NO OTHER WARRANTY IS MADE BY\nEITHER PARTY UNDER THIS AGREEMENT. ANY INFORMATION EXCHANGED UNDER THIS AGREEMENT IS PROVIDED “AS IS.”\n8 United States Government Regulations. The parties shall adhere to any applicable U.S. and foreign export control laws and regulations and shall\nnot export or reexport any technical data or products received or the direct product of such technical data except in compliance with the applicable\nexport control laws and regulations of the U.S . and any applicable foreign country.\n9 Miscellaneous. This Agreement does not create any joint venture, pooling arrangement, agency or partnership relationship between the parties\nhereto, nor does it create any obligation or commitment on the part of either party to submit a proposal from or perform any contract or services with\nthe other party. Nothing herein shall be construed as providing for the sharing of profits or losses arising out of the parties efforts. This Agreement\nshall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts governing such agreements, without regard\nto conflicts-of-law principles. The sole and exclusive jurisdiction and venue for any litigation arising out of this Agreement shall be an appropriate\nfederal or state court located in the Commonwealth of Massachusetts, and the parties agree not to raise, and waive, any objections or defenses based\nupon venue or forum non conveniens. This Agreement contains the complete and exclusive agreement of the parties with respect to the subject matter\nhereof and supersedes all prior agreements and understandings whether written or oral, express or implied. If any provision of this Agreement is held\ninvalid, illegal or unenforceable by a court of competent jurisdiction, such shall not affect any other provision of this Agreement, which shall remain\nin full force and effect. No amendment or alteration of the terms of this Agreement shall be effective unless made in writing and executed by both\nparties hereto. A failure or delay in exercising any right in respect to this Agreement will not be presumed to operate as a waiver, and a single or\npartial exercise of any right will not be presumed to preclude any subsequent or further exercise of that right or the exercise of any other right. Any\nmodification or waiver of any provision of this Agreement shall not be effective unless made in writing. Any such waiver shall be effective only in the\nspecific instance and for the purpose given.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed below by their duly authorized signatories.\nJABIL, INC.\nIROBOT CORPORATION\nBy: /s/ Arthur W. Hook\n(Counter Party)\nBy: /s/ Oscar Zamorano\nName: Arthur W. Hook\nName: Oscar Zamorano\nTitle: Director of Sales\nTitle VP Operations & Supply Chain\nDate: June 23rd, 2009\nDate June 23rd, 2009\nAddress for notices to Counter Party:\nAddress for notices to iROBOT CORPORATION:\nJabil, Inc.\niRobot Corporation\nAttn: Legal Dept.\nAttn: Legal Department\n10560 Rev. Martin Luther King Jr. Street North\n8 Crosby Drive\nSt. Petersburg, FL 33716\nBedford. MA 01730\nPortions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company’s\napplication requesting confidential treatment under Rule 24b-2 of the Exchange Act — [*] denotes omissions.	SCHEDULE 4\nTO MANUFACTURING SERVICES AGREEMENT\nBETWEEN JABIL AND COMPANY\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), effective as of the date set forth last below, is made by and between the\nundersigned counter party (the “Counter Party”) and iROBOT CORPORATION (“iROBOT?”). In consideration of the mutual agreements and other\nprovisions of this Agreement, the parties hereto agree as follows:\n1 Scope of Proprietary Information.\n1.1 “Proprietary Information” means, subject to the exceptions set forth in Section 1.2 hereof, any information or data, regardless of whether it is in\ntangible form, that is disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) and that (a) the Disclosing Party has\nmarked as confidential or proprietary, or (b) the Disclosing Party identifies as confidential or proprietary at the time of disclosure with written\nconfirmation within thirty (30) days of disclosure to the Receiving Party, provided, however, that:\n1.1.1 Reports and/or information related to or regarding the Disclosing Party’s business plans, business methodologies, strategies, specifications,\ndevelopment plans, customers, and/or billing records will be deemed Proprietary Information of the Disclosing Party even if not so marked or\nidentified.\n1.1.2 Prototypes, mockups, models, designs, project deliverables, and/or depictions thereof, observed within or upon the Disclosing Party’s business\npremises will be deemed Proprietary Information of the Disclosing Party even if not so marked or identified.\n1.2 “Proprietary Information” shall not include any information which: (a) the Receiving Party can show by written record was in its possession prior\nto disclosure by the Disclosing Party hereunder, provided that the Receiving Party must promptly notify the Disclosing Party of any prior knowledge\nin the manner provided in Section 5 below; (b) appears in a patent or publication, or which otherwise is or becomes generally known in the trade other\nthan through the Receiving Party’s failure to observe any or all terms and conditions hereof; provided that the foregoing shall not be interpreted to\ncreate any express or implied license, or the right to obtain a license, to any patents which may be issued to the Disclosing Party; or (c) subsequent to\ndisclosure to the Receiving Party by the Disclosing Party, is obtained by the Receiving Party from a third person who is lawfully in possession of such\ninformation, and who is not in violation of any contractual, legal or fiduciary obligations to the Disclosing Party in making such disclosure to the\nReceiving Party and does not require the Receiving Party to refrain from disclosing such information to others.\n2 Use and Disclosure of Proprietary Information.\n2.1 The Receiving Party may only use the Proprietary Information for the purpose of evaluating or operating pursuant to a business relationship or\npotential business relationship between the Receiving Party and the Disclosing Party (the “Permitted Purpose”). The Receiving Party must keep secret\nand shall not disclose, publish, divulge, furnish or make accessible to anyone any of the Proprietary Information of the Disclosing Party, other than\nfurnishing such Proprietary Information to the Receiving Party’s employees, agents, representatives, consultants and contractors who are required to\nhave access to such Proprietary Information in connection with the Permitted Purpose during the time that the Receiving Party is permitted to retain\nsuch Proprietary Information hereunder; provided that such persons are bound by written agreements respecting the Proprietary Information in the\nmanner set forth in this Agreement.\n2.2 The Receiving Party shall not embody any of the Proprietary Information of the Disclosing Party in any of the Receiving Party’s products,\nprocesses or services, or duplicate, copy or exploit any of such Proprietary Information in the Receiving Party’s business, or otherwise use any of the\nProprietary Information for any purpose other than for the Permitted Purpose.\nPortions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company’s\napplication requesting confidential treatment under Rule 24b-2 of the Exchange Act — [*] denotes omissions.\n2.3 The Receiving Party shall use the equivalent of measures that the Receiving Party uses to protect the Receiving Party’s own proprietary\ninformation, but in no event less than reasonable care and adequate measures, to protect the security of the Proprietary Information of the Disclosing\nParty and to ensure that any Proprietary Information of the Disclosing Party is not disclosed or otherwise made available to other persons or used in\nviolation of this Agreement.\n2.4 In the event that the Receiving Party is required by law to make any disclosure of any of the Proprietary Information of the Disclosing Party, by\nsubpoena, judicial or administrative order or otherwise, the Receiving Party shall first give written notice of such requirement to the Disclosing Party,\nand shall permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in the Proprietary Information, and provide full\ncooperation and assistance to the Disclosing Party in seeking to obtain such protection.\n3 Certain Rights and Limitations.\n3.1 The Receiving Party will provide upon the Disclosing Party’s request a certification that access and use is being controlled in accordance with this\nAgreement.\n3.2 The provision of Proprietary Information hereunder shall not transfer any right, title or interest in such information to Receiving Party. Disclosing\nParty does not grant any express or implied right to Receiving Party to or under Disclosing Party’s patents, copyrights, trademarks, trade secret\ninformation or other proprietary rights.\n3.3 All tangible embodiments of the Proprietary Information of the Disclosing Party (e.g., drawings, memoranda and notes) and all copies thereof,\nwhether in hard-copy or machine-readable form and whether supplied by the Disclosing Party or made by or for the Receiving Party (collectively, the\n“Tangible Embodiments™), shall at all times be and remain the property of the Disclosing Party.\n3.4 The Receiving Party shall not reverse-engineer, decompile, or disassemble any software or firmware disclosed or provided to it under this\nAgreement and shall not remove, overprint or deface any notice of confidentiality, copyright, trademark, logo, legend or other notices of ownership or\nconfidentiality from any originals or copies of Proprietary Information it obtains from the Disclosing Party.\n4 Remedies. Receiving Party acknowledges that a breach by it of any of the terms of this Agreement would cause irreparable harm to the Disclosing\nParty for which Disclosing Party could not be adequately compensated by money damages. Accordingly, Receiving Party agrees that, in addition to\nall other remedies available to Disclosing Party in an action at law, in the event of any breach or threatened breach by the Receiving Party of the terms\nof this Agreement, the Disclosing Party shall, without the necessity of proving actual damages or posting any bond or other security, be entitled to\ntemporary and permanent injunctive relief, including, but not limited to, specific performance of the terms of this Agreement.\n5 Notice of Independent Knowledge or Breach. The Receiving Party agrees to notify the Disclosing Party promptly in writing if (a) upon disclosure\nof Proprietary Information by the Disclosing Party, the Receiving Party has prior knowledge of the same; or (b) subsequent to disclosure of any\nProprietary Information by the Disclosing Party, information is disclosed to the Receiving Party in a manner described in Section 1.2 or (c) the\nReceiving Party becomes aware of any breach of this Agreement with respect to the Proprietary Information of the Disclosing Party in the Receiving\nParty’s possession.\n6 Termination.\n6.1 Notice and Effect of Termination. This Agreement shall remain in effect until it is terminated by either party with thirty (30) days prior written\nnotice. The terms and conditions of this Agreement shall survive any such termination with respect to Proprietary Information that is disclosed prior\nto the effective date of such termination for a period of [*] from the date of termination.\n6.2 Return of Proprietary Information. Upon the earlier of (a) the termination of this Agreement, (b) Disclosing Party’s written request or (c) such\ntime as the Receiving Party no longer requires the Proprietary Information for the Permitted Purpose, Receiving Party agrees to promptly return to\nDisclosing Party or destroy all Proprietary Information and any Tangible Embodiments that are in the possession of Receiving Party and to certify the\nreturn or destruction of all such Proprietary Information and embodiments.\nPortions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company’s\napplication requesting confidential treatment under Rule 24b-2 of the Exchange Act — [*] denotes omissions.\n7 Warranty. Disclosing Party warrants that it has the right to make the disclosures under this Agreement. NO OTHER WARRANTY IS MADE BY\nEITHER PARTY UNDER THIS AGREEMENT. ANY INFORMATION EXCHANGED UNDER THIS AGREEMENT IS PROVIDED “AS IS.”\n8 United States Government Regulations. The parties shall adhere to any applicable U.S. and foreign export control laws and regulations and shall\nnot export or reexport any technical data or products received or the direct product of such technical data except in compliance with the applicable\nexport control laws and regulations of the U.S. and any applicable foreign country.\n9 Miscellaneous. This Agreement does not create any joint venture, pooling arrangement, agency or partnership relationship between the parties\nhereto, nor does it create any obligation or commitment on the part of either party to submit a proposal from or perform any contract or services with\nthe other party. Nothing herein shall be construed as providing for the sharing of profits or losses arising out of the parties efforts. This Agreement\nshall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts governing such agreements, without regard\nto conflicts-of-law principles. The sole and exclusive jurisdiction and venue for any litigation arising out of this Agreement shall be an appropriate\nfederal or state court located in the Commonwealth of Massachusetts, and the parties agree not to raise, and waive, any objections or defenses based\nupon venue or forum non conveniens. This Agreement contains the complete and exclusive agreement of the parties with respect to the subject matter\nhereof and supersedes all prior agreements and understandings whether written or oral, express or implied. If any provision of this Agreement is held\ninvalid, illegal or unenforceable by a court of competent jurisdiction, such shall not affect any other provision of this Agreement, which shall remain\nin full force and effect. No amendment or alteration of the terms of this Agreement shall be effective unless made in writing and executed by both\nparties hereto. A failure or delay in exercising any right in respect to this Agreement will not be presumed to operate as a waiver, and a single or\npartial exercise of any right will not be presumed to preclude any subsequent or further exercise of that right or the exercise of any other right. Any\nmodification or waiver of any provision of this Agreement shall not be effective unless made in writing. Any such waiver shall be effective only in the\nspecific instance and for the purpose given.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed below by their duly authorized signatories.\nJABIL, INC. IROBOT CORPORATION\nBy: /s/ Arthur W. Hook (Counter Party) By: /s/ Oscar Zamorano\nName: Arthur W. Hook Name: Oscar Zamorano\nTitle: Director of Sales Title VP Operations & Supply Chain\nDate: June 23rd, 2009 Date June 23rd, 2009\nAddress for notices to Counter Party: Address for notices to iROBOT CORPORATION:\nJabil, Inc. iRobot Corporation\nAttn: Legal Dept. Attn: Legal Department\n10560 Rev. Martin Luther King Jr. Street North 8 Crosby Drive\nSt. Petersburg, FL 33716 Bedford. MA 01730\nPortions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company’s\napplication requesting confidential treatment under Rule 24b-2 of the Exchange Act — [*] denotes omissions.	SCHEDULE 4\nTO MANUFACTURING SERVICES AGREEMENT\nBETWEEN JABIL AND COMPANY\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis MUTUAL NON-DISCLOSURE AGREEMENT (this "Agreement"), effective as of the date set forth last below, is made by and between the\nundersigned counter party (the "Counter Party") and IROBOT CORPORATION ("iROBOT"). In consideration of the mutual agreements and other\nprovisions of this Agreement, the parties hereto agree as follows:\n1 Scope of Proprietary Information.\n1.1 "Proprietary Information" means, subject to the exceptions set forth in Section 1.2 hereof, any information or data, regardless of whether it is\nin\ntangible form, that is disclosed by a party (the "Disclosing Party") to the other party (the "Receiving Party") and that (a) the Disclosing Party has\nmarked as confidential or proprietary, or (b) the Disclosing Party identifies as confidential or proprietary at the time of disclosure with written\nconfirmation within thirty (30) days of disclosure to the Receiving Party, provided, however, that:\n1.1.1 Reports and/or information related to or regarding the Disclosing Party's business plans, business methodologies, strategies, specifications,\ndevelopment plans, customers, and/or billing records will be deemed Proprietary Information of the Disclosing Party even if not so marked or\nidentified.\n1.1.2 Prototypes, mockups, models, designs, project deliverables, and/or depictions thereof, observed within or upon the Disclosing Party's business\npremises will be deemed Proprietary Information of the Disclosing Party even if not so marked or identified.\n1.2 "Proprietary Information" shall not include any information which: (a) the Receiving Party can show by written record was in its possession prior\nto disclosure by the Disclosing Party hereunder, provided that the Receiving Party must promptly notify the Disclosing Party of any prior knowledge\nin the manner provided in Section 5 below; (b) appears in a patent or publication, or which otherwise is or becomes generally known in the trade other\nthan through the Receiving Party's failure to observe any or all terms and conditions hereof; provided that the foregoing shall not be interpreted to\ncreate any express or implied license, or the right to obtain a license, to any patents which may be issued to the Disclosing Party; or (c) subsequent\nto\ndisclosure to the Receiving Party by the Disclosing Party, is obtained by the Receiving Party from a third person who is lawfully in possession of such\ninformation, and who is not in violation of any contractual, legal or fiduciary obligations to the Disclosing Party in making such disclosure to the\nReceiving Party and does not require the Receiving Party to refrain from disclosing such information to others.\n2 Use and Disclosure of Proprietary Information\n2.1 The Receiving Party may only use the Proprietary Information for the purpose of evaluating or operating pursuant to a business relationship or\npotential business relationship between the Receiving Party and the Disclosing Party (the "Permitted Purpose"). The Receiving Party must keep secret\nand shall not disclose, publish, divulge, furnish or make accessible to anyone any of the Proprietary Information of the Disclosing Party, other than\nfurnishing such Proprietary Information to the Receiving Party's employees, agents, representatives, consultants and contractors who are required to\nhave access to such Proprietary Information in connection with the Permitted Purpose during the time that the Receiving Party is permitted to retain\nsuch Proprietary Information hereunder; provided that such persons are bound by written agreements respecting the Proprietary Information in the\nmanner set forth in this Agreement.\n2.2 The Receiving Party shall not embody any of the Proprietary Information of the Disclosing Party in any of the Receiving Party's products,\nprocesses or services, or duplicate, copy or exploit any of such Proprietary Information in the Receiving Party's business, or otherwise use any of the\nProprietary Information for any purpose other than for the Permitted Purpose.\nPortions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company's\napplication requesting confidential treatment under Rule 24b-2 of the Exchange Act [*] denotes omissions.\n2.3 The Receiving Party shall use the equivalent of measures that the Receiving Party uses to protect the Receiving Party's own proprietary\ninformation, but in no event less than reasonable care and adequate measures, to protect the security of the Proprietary Information of the Disclosing\nParty and to ensure that any Proprietary Information of the Disclosing Party is not disclosed or otherwise made available to other persons or used in\nviolation of this Agreement.\n2.4 In the event that the Receiving Party is required by law to make any disclosure of any of the Proprietary Information of the Disclosing Party,\nby\nsubpoena, judicial or administrative order or otherwise, the Receiving Party shall first give written notice of such requirement to the Disclosing Party,\nand shall permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in the Proprietary Information, and provide full\ncooperation and assistance to the Disclosing Party in seeking to obtain such protection.\n3 Certain Rights and Limitations.\n3.1 The Receiving Party will provide upon the Disclosing Party's request a certification that access and use is being controlled in accordance with this\nAgreement.\n3.2 The provision of Proprietary Information hereunder shall not transfer any right, title or interest in such information to Receiving Party. Disclosing\nParty does not grant any express or implied right to Receiving Party to or under Disclosing Party's patents, copyrights, trademarks, trade secret\ninformation or other proprietary rights.\n3.3 All tangible embodiments of the Proprietary Information of the Disclosing Party (e.g., drawings, memoranda and notes) and all copies thereof,\nwhether in hard-copy or machine-readable form and whether supplied by the Disclosing Party or made by or for the Receiving Party (collectively, the\n"Tangible Embodiments"), shall at all times be and remain the property of the Disclosing Party.\n3.4 The Receiving Party shall not reverse-engineer, decompile, or disassemble any software or firmware disclosed or provided to it under\nthis\nAgreement and shall not remove, overprint or deface any notice of confidentiality, copyright, trademark, logo, legend or other notices of ownership or\nconfidentiality from any originals or copies of Proprietary Information it obtains from the Disclosing Party.\n4 Remedies. Receiving Party acknowledges that a breach by it of any of the terms of this Agreement would cause irreparable harm to the Disclosing\nParty for which Disclosing Party could not be adequately compensated by money damages. Accordingly, Receiving Party agrees that, in addition to\nall other remedies available to Disclosing Party in an action at law, in the event of any breach or threatened breach by the Receiving Party of the terms\nof this Agreement, the Disclosing Party shall, without the necessity of proving actual damages or posting any bond or other security, be entitled to\ntemporary and permanent injunctive relief, including, but not limited to, specific performance of the terms of this Agreement.\n5 Notice of Independent Knowledge or Breach. The Receiving Party agrees to notify the Disclosing Party promptly in writing if (a) upon disclosure\nof Proprietary Information by the Disclosing Party, the Receiving Party has prior knowledge of the same; or (b) subsequent to disclosure of any\nProprietary Information by the Disclosing Party, information is disclosed to the Receiving Party in a manner described in Section 1.2 or (c) the\nReceiving Party becomes aware of any breach of this Agreement with respect to the Proprietary Information of the Disclosing Party in the Receiving\nParty's possession.\n6 Termination.\n6.1 Notice and Effect of Termination. This Agreement shall remain in effect until it is terminated by either party with thirty (30) days prior written\nnotice. The terms and conditions of this Agreement shall survive any such termination with respect to Proprietary Information that is disclosed prior\nto the effective date of such termination for a period of [*] from the date of termination.\n6.2 Return of Proprietary Information. Upon the earlier of (a) the termination of this Agreement, (b) Disclosing Party's written request or (c) such\ntime as the Receiving Party no longer requires the Proprietary Information for the Permitted Purpose, Receiving Party agrees to promptly return to\nDisclosing Party or destroy all Proprietary Information and any Tangible Embodiments that are in the possession of Receiving Party and to certify the\nreturn or destruction of all such Proprietary Information and embodiments.\nPortions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company's\napplication requesting confidential treatment under Rule 24b-2 of the Exchange Act [*] denotes omissions.\n7 Warranty. Disclosing Party warrants that it has the right to make the disclosures under this Agreement. NO OTHER WARRANTY IS MADE BY\nEITHER PARTY UNDER THIS AGREEMENT. ANY INFORMATION EXCHANGED UNDER THIS AGREEMENT IS PROVIDED "AS IS."\n8 United States Government Regulations. The parties shall adhere to any applicable U.S. and foreign export control laws and regulations and shall\nnot export or reexport any technical data or products received or the direct product of such technical data except in compliance with the applicable\nexport control laws and regulations of the U.S. and any applicable foreign country.\n9 Miscellaneous. This Agreement does not create any joint venture, pooling arrangement, agency or partnership relationship between the parties\nhereto, nor does it create any obligation or commitment on the part of either party to submit a proposal from or perform any contract or services with\nthe other party. Nothing herein shall be construed as providing for the sharing of profits or losses arising out of the parties efforts. This Agreement\nshall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts governing such agreements, without regard\nto conflicts-of-law principles. The sole and exclusive jurisdiction and venue for any litigation arising out of this Agreement shall be an appropriate\nfederal or state court located in the Commonwealth of Massachusetts, and the parties agree not to raise, and waive, any objections or defenses based\nupon venue or forum non conveniens. This Agreement contains the complete and exclusive agreement of the parties with respect to the subject matter\nhereof and supersedes all prior agreements and understandings whether written or oral, express or implied. If any provision of this Agreement is held\ninvalid, illegal or unenforceable by a court of competent jurisdiction, such shall not affect any other provision of this Agreement, which shall remain\nin full force and effect. No amendment or alteration of the terms of this Agreement shall be effective unless made in writing and executed by both\nparties hereto. A failure or delay in exercising any right in respect to this Agreement will not be presumed to operate as a waiver, and a single or\npartial exercise of any right will not be presumed to preclude any subsequent or further exercise of that right or the exercise of any other right. Any\nmodification or waiver of any provision of this Agreement shall not be effective unless made in writing. Any such waiver shall be effective only in the\nspecific instance and for the purpose given.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed below by their duly authorized signatories.\nJABIL, INC.\nIROBOT CORPORATION\nBy: /s/ Arthur W. Hook\n(Counter Party)\nBy: /s/ Oscar Zamorano\nName: Arthur W. Hook\nName: Oscar Zamorano\nTitle: Director of Sales\nTitle VP Operations & Supply Chain\nDate: June 23rd, 2009\nDate June 23rd, 2009\nAddress for notices to Counter Party.:\nAddress for notices to iROBOT CORPORATION:\nJabil, Inc.\niRobot Corporation\nAttn: Legal Dept.\nAttn: Legal Department\n10560 Rev. Martin Luther King Jr. Street North\n8 Crosby Drive\nSt. Petersburg, FL 33716\nBedford. MA 01730\nPortions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company's\napplication requesting confidential treatment under Rule 24b-2 of the Exchange Act [*] denotes omissions.	SCHEDULE 4\nTO MANUFACTURING SERVICES AGREEMENT\nBETWEEN JABIL AND COMPANY\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), effective as of the date set forth last below, is made by and between the\nundersigned counter party (the “Counter Party”) and iROBOT CORPORATION (“iROBOT”). In consideration of the mutual agreements and other\nprovisions of this Agreement, the parties hereto agree as follows:\n1 Scope of Proprietary Information.\n1.1 “Proprietary Information” means, subject to the exceptions set forth in Section 1.2 hereof, any information or data, regardless of whether it is in\ntangible form, that is disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) and that (a) the Disclosing Party has\nmarked as confidential or proprietary, or (b) the Disclosing Party identifies as confidential or proprietary at the time of disclosure with written\nconfirmation within thirty (30) days of disclosure to the Receiving Party, provided, however, that:\n1.1.1 Reports and/or information related to or regarding the Disclosing Party’s business plans, business methodologies, strategies, specifications,\ndevelopment plans, customers, and/or billing records will be deemed Proprietary Information of the Disclosing Party even if not so marked or\nidentified.\n1.1.2 Prototypes, mockups, models, designs, project deliverables, and/or depictions thereof, observed within or upon the Disclosing Party’s business\npremises will be deemed Proprietary Information of the Disclosing Party even if not so marked or identified.\n1.2 “Proprietary Information” shall not include any information which: (a) the Receiving Party can show by written record was in its possession prior\nto disclosure by the Disclosing Party hereunder, provided that the Receiving Party must promptly notify the Disclosing Party of any prior knowledge\nin the manner provided in Section 5 below; (b) appears in a patent or publication, or which otherwise is or becomes generally known in the trade other\nthan through the Receiving Party’s failure to observe any or all terms and conditions hereof; provided that the foregoing shall not be interpreted to\ncreate any express or implied license, or the right to obtain a license, to any patents which may be issued to the Disclosing Party; or (c) subsequent to\ndisclosure to the Receiving Party by the Disclosing Party, is obtained by the Receiving Party from a third person who is lawfully in possession of such\ninformation, and who is not in violation of any contractual, legal or fiduciary obligations to the Disclosing Party in making such disclosure to the\nReceiving Party and does not require the Receiving Party to refrain from disclosing such information to others.\n2 Use and Disclosure of Proprietary Information.\n2.1 The Receiving Party may only use the Proprietary Information for the purpose of evaluating or operating pursuant to a business relationship or\npotential business relationship between the Receiving Party and the Disclosing Party (the “Permitted Purpose”). The Receiving Party must keep secret\nand shall not disclose, publish, divulge, furnish or make accessible to anyone any of the Proprietary Information of the Disclosing Party, other than\nfurnishing such Proprietary Information to the Receiving Party’s employees, agents, representatives, consultants and contractors who are required to\nhave access to such Proprietary Information in connection with the Permitted Purpose during the time that the Receiving Party is permitted to retain\nsuch Proprietary Information hereunder; provided that such persons are bound by written agreements respecting the Proprietary Information in the\nmanner set forth in this Agreement.\n2.2 The Receiving Party shall not embody any of the Proprietary Information of the Disclosing Party in any of the Receiving Party’s products,\nprocesses or services, or duplicate, copy or exploit any of such Proprietary Information in the Receiving Party’s business, or otherwise use any of the\nProprietary Information for any purpose other than for the Permitted Purpose.\nPortions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company’s\napplication requesting confidential treatment under Rule 24b-2 of the Exchange Act — [*] denotes omissions.\n2.3 The Receiving Party shall use the equivalent of measures that the Receiving Party uses to protect the Receiving Party’s own proprietary\ninformation, but in no event less than reasonable care and adequate measures, to protect the security of the Proprietary Information of the Disclosing\nParty and to ensure that any Proprietary Information of the Disclosing Party is not disclosed or otherwise made available to other persons or used in\nviolation of this Agreement.\n2.4 In the event that the Receiving Party is required by law to make any disclosure of any of the Proprietary Information of the Disclosing Party, by\nsubpoena, judicial or administrative order or otherwise, the Receiving Party shall first give written notice of such requirement to the Disclosing Party,\nand shall permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in the Proprietary Information, and provide full\ncooperation and assistance to the Disclosing Party in seeking to obtain such protection.\n3 Certain Rights and Limitations.\n3.1 The Receiving Party will provide upon the Disclosing Party’s request a certification that access and use is being controlled in accordance with this\nAgreement.\n3.2 The provision of Proprietary Information hereunder shall not transfer any right, title or interest in such information to Receiving Party. Disclosing\nParty does not grant any express or implied right to Receiving Party to or under Disclosing Party’s patents, copyrights, trademarks, trade secret\ninformation or other proprietary rights.\n3.3 All tangible embodiments of the Proprietary Information of the Disclosing Party (e.g., drawings, memoranda and notes) and all copies thereof,\nwhether in hard-copy or machine-readable form and whether supplied by the Disclosing Party or made by or for the Receiving Party (collectively, the\n“Tangible Embodiments”), shall at all times be and remain the property of the Disclosing Party.\n3.4 The Receiving Party shall not reverse-engineer, decompile, or disassemble any software or firmware disclosed or provided to it under this\nAgreement and shall not remove, overprint or deface any notice of confidentiality, copyright, trademark, logo, legend or other notices of ownership or\nconfidentiality from any originals or copies of Proprietary Information it obtains from the Disclosing Party.\n4 Remedies. Receiving Party acknowledges that a breach by it of any of the terms of this Agreement would cause irreparable harm to the Disclosing\nParty for which Disclosing Party could not be adequately compensated by money damages. Accordingly, Receiving Party agrees that, in addition to\nall other remedies available to Disclosing Party in an action at law, in the event of any breach or threatened breach by the Receiving Party of the terms\nof this Agreement, the Disclosing Party shall, without the necessity of proving actual damages or posting any bond or other security, be entitled to\ntemporary and permanent injunctive relief, including, but not limited to, specific performance of the terms of this Agreement.\n5 Notice of Independent Knowledge or Breach. The Receiving Party agrees to notify the Disclosing Party promptly in writing if (a) upon disclosure\nof Proprietary Information by the Disclosing Party, the Receiving Party has prior knowledge of the same; or (b) subsequent to disclosure of any\nProprietary Information by the Disclosing Party, information is disclosed to the Receiving Party in a manner described in Section 1.2 or (c) the\nReceiving Party becomes aware of any breach of this Agreement with respect to the Proprietary Information of the Disclosing Party in the Receiving\nParty’s possession.\n6 Termination.\n6.1 Notice and Effect of Termination. This Agreement shall remain in effect until it is terminated by either party with thirty (30) days prior written\nnotice. The terms and conditions of this Agreement shall survive any such termination with respect to Proprietary Information that is disclosed prior\nto the effective date of such termination for a period of [*] from the date of termination.\n6.2 Return of Proprietary Information. Upon the earlier of (a) the termination of this Agreement, (b) Disclosing Party’s written request or (c) such\ntime as the Receiving Party no longer requires the Proprietary Information for the Permitted Purpose, Receiving Party agrees to promptly return to\nDisclosing Party or destroy all Proprietary Information and any Tangible Embodiments that are in the possession of Receiving Party and to certify the\nreturn or destruction of all such Proprietary Information and embodiments.\nPortions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company’s\napplication requesting confidential treatment under Rule 24b-2 of the Exchange Act — [*] denotes omissions.\n7 Warranty. Disclosing Party warrants that it has the right to make the disclosures under this Agreement. NO OTHER WARRANTY IS MADE BY\nEITHER PARTY UNDER THIS AGREEMENT. ANY INFORMATION EXCHANGED UNDER THIS AGREEMENT IS PROVIDED “AS IS.”\n8 United States Government Regulations. The parties shall adhere to any applicable U.S. and foreign export control laws and regulations and shall\nnot export or reexport any technical data or products received or the direct product of such technical data except in compliance with the applicable\nexport control laws and regulations of the U.S . and any applicable foreign country.\n9 Miscellaneous. This Agreement does not create any joint venture, pooling arrangement, agency or partnership relationship between the parties\nhereto, nor does it create any obligation or commitment on the part of either party to submit a proposal from or perform any contract or services with\nthe other party. Nothing herein shall be construed as providing for the sharing of profits or losses arising out of the parties efforts. This Agreement\nshall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts governing such agreements, without regard\nto conflicts-of-law principles. The sole and exclusive jurisdiction and venue for any litigation arising out of this Agreement shall be an appropriate\nfederal or state court located in the Commonwealth of Massachusetts, and the parties agree not to raise, and waive, any objections or defenses based\nupon venue or forum non conveniens. This Agreement contains the complete and exclusive agreement of the parties with respect to the subject matter\nhereof and supersedes all prior agreements and understandings whether written or oral, express or implied. If any provision of this Agreement is held\ninvalid, illegal or unenforceable by a court of competent jurisdiction, such shall not affect any other provision of this Agreement, which shall remain\nin full force and effect. No amendment or alteration of the terms of this Agreement shall be effective unless made in writing and executed by both\nparties hereto. A failure or delay in exercising any right in respect to this Agreement will not be presumed to operate as a waiver, and a single or\npartial exercise of any right will not be presumed to preclude any subsequent or further exercise of that right or the exercise of any other right. Any\nmodification or waiver of any provision of this Agreement shall not be effective unless made in writing. Any such waiver shall be effective only in the\nspecific instance and for the purpose given.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed below by their duly authorized signatories.\nJABIL, INC.\nIROBOT CORPORATION\nBy: /s/ Arthur W. Hook\n(Counter Party)\nBy: /s/ Oscar Zamorano\nName: Arthur W. Hook\nName: Oscar Zamorano\nTitle: Director of Sales\nTitle VP Operations & Supply Chain\nDate: June 23rd, 2009\nDate June 23rd, 2009\nAddress for notices to Counter Party:\nAddress for notices to iROBOT CORPORATION:\nJabil, Inc.\niRobot Corporation\nAttn: Legal Dept.\nAttn: Legal Department\n10560 Rev. Martin Luther King Jr. Street North\n8 Crosby Drive\nSt. Petersburg, FL 33716\nBedford. MA 01730\nPortions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company’s\napplication requesting confidential treatment under Rule 24b-2 of the Exchange Act — [*] denotes omissions.
b29bfc4e7b6740f87dd1cd83c3b2d1e8.pdf	effective_date jurisdiction party	EXHIBIT 10.19\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nThis Non-Competition and Confidentiality Agreement (“Agreement”), is made as of the first day of December, 1998 and effective\nApril 1, 1998 between DR. JOHN J. HARRINGTON, an individual (“Employee”), and ATHERSYS, INC., a Delaware corporation\n(“Athersys”).\nRECITALS:\nA. Athersys is engaged in the competitive business of developing, marketing and selling certain core biotechnologies for the\ndiagnosis and treatment of genetic and infectious disease.\nB. Athersys employs Employee as of the date hereof (provided that nothing stated herein shall be deemed to be a promise by\nAthersys of future employment).\nC. As a part of such employment, Employee has access to certain “Confidential Information” (as herein defined).\nD. In consideration of the new employment arrangements set forth in the Amended and Restated Employment Agreement between\nEmployee and Athersys dated as of the date hereof (the “Employment Agreement”), Employee has agreed to execute this Agreement.\nE. For the purposes of this Agreement, the term “Athersys” shall be deemed to include Athersys, its predecessor and any affiliates\nor subsidiaries, together with their respective successors or assigns.\nAGREEMENTS:\nNOW THEREFORE, for and in consideration of the premises, mutual covenants and undertakings set forth herein, and other good\nand valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, the parties to this\nAgreement hereby agree as follows:\n1. Non-Competition and Confidentiality.\n(a) Employee agrees that, so long as he remains employed by Athersys in any capacity and for a period of eighteen (18) months\nafter the effective date of the termination of said employment by Athersys or Employee, Employee shall not do or suffer any of the\nfollowing:\n(i) Own, control or manage, or participate in the ownership, control or management of, render consulting services to, or be\nemployed by any corporation, partnership or other entity that is engaged in the business of researching, developing, marketing or\nselling any technology relating to the field of gene therapy, including,\nwithout limitation, synthetic microchromosomal technologies, gene activation technologies, centromere technologies or any other\ntype of technology, which is substantially similar to that researched, developed, marketed or sold or contemplated to be researched,\ndeveloped, marketed or sold by Athersys prior to the Termination Effective Date in any geographic areas in the United States or any\ncountries outside the United States where Athersys has researched, developed, marketed or sold such technologies prior to the\nTermination Effective Date. For the purposes of this subsection (i), the term “ownership” shall be defined as holding five percent\n(5%) or more ownership interest or voting control interest in the entity in issue;\n(ii) Knowingly attempt to employ or employ, attempt to assist in employing or assist in employing, or otherwise interfere with the\nemployment of, any employee or officer of Athersys; or\n(iii) Solicit, divert or attempt to divert any customer, sponsor, investor, research collaborator or other business relations of\nAthersys from associating, collaborating or otherwise doing business with Athersys.\nNotwithstanding the foregoing, the provisions of this Section 1(a) shall terminate on the date that Employee ceases to receive the\ntermination compensation from Athersys pursuant to Section 8(c) of the Employment Agreement.\n(b) Employee agrees that from and after the date of this Agreement, Employee shall not disclose, divulge, discuss, copy or\notherwise use or suffer to be used any item of confidential information of Athersys, including, without limitation, technologies,\nproduct development procedures, new products, customer lists, client lists, sales methods, pricing or cost data, software or software\ndocumentation, methods, product research or engineering data, documents, instruments, drawings, or designs (“Confidential\nInformation”). The term “Confidential Information” shall include, by way of example not limitation, any information which, in the\ngood faith opinion of the Board of Directors, constitutes “trade secrets” of Athersys, as such term is defined in Ohio Revised Code\nSection 1333.51 .\n2. Injunctive Relief. Employee acknowledges and agrees that: (i) each term of Section 1 of this Agreement is fully required to\nprotect Athersys’ interest and that no term in Section 1 confers a benefit on Athersys that is disproportionate to the detriment imposed\non Employee and each provision of such Section 1 is reasonable in time and territory and does not stifle Employee’s inherent skill\nand experience and will not operate as a bar to Employee’s sole means of support; (ii) the remedy at law for any breach by Employee\nof any term of Section 1 would be inadequate; and (iii) the damages flowing from such breach are not readily susceptible to\nmeasurement in monetary terms. Accordingly, upon adequate proof of Employee’s violation of any legally enforceable provision of\nSection 1 of this Agreement, Athersys shall be entitled to immediate injunctive relief and may obtain a temporary order restraining\nany threatened or future breach. Nothing in this Agreement shall\n2\nbe deemed to limit Athersys’ remedies at law or in equity for any breach by Employee of any term of this Agreement.\n3. Ownership of Technology. Any technology, procedure, design feature, invention, improvement, development or discovery\n(whether or not patentable or copyrightable) that Employee may conceive of, make, invent, suggest, or otherwise obtain knowledge\nof during the course of Employee’s employment or other relationship with Athersys (whether individually or jointly with any other\nperson or persons), relating in any way to the field of gene therapy or any other business of Athersys or to the proposed contemplated\nbusiness of which Athersys will be a part of, shall be the sole, exclusive and absolute property of Athersys, as shall all physical\nembodiments and manifestations thereof and all research data regarding, including, without limitation, all proprietary rights,\ntechniques, specifications, any methods and apparatuses for data manipulation and utilization. Employee will immediately disclose\nany such technology, procedure, design feature, invention, improvement, development or discovery to Athersys and will, at any time,\nupon Athersys’ request and without additional compensation, execute any documents and give all lawful testimony which may be\nrequired respecting the patenting or copyrighting of any such technology, procedure, design feature, invention, improvement,\ndevelopment or discovery, as well as any papers which may be considered necessary or helpful by Athersys in the processing of\napplications for patents thereon, to vest title thereto in Athersys, or which may relate to any litigation or controversy in connection\ntherewith, all expenses incident thereto to be borne by Athersys. Employee, whether or not still employed by Athersys, will cooperate\nwith Athersys, at Athersys’ expense, in any litigation or other matter relating to Athersys’ right in any of the foregoing.\n4. Severability. In the event that Sections 1, 2 and 3 shall be found by a court of competent jurisdiction to be invalid or\nunenforceable as against public policy, such court shall exercise its discretion in reforming such provisions to the end that Employee\nshall be subject to nondisclosure, noncompetitive and noninterference covenants that are reasonable under the circumstances and\nenforceable by Athersys. In the event that any other provision or term of this Agreement is found to be void or unenforceable to any\nextent for any reason, it is the agreed-upon intent of the parties hereto that all remaining provisions or terms of this Agreement shall\nremain in full force and effect to the maximum extent permitted and that this Agreement shall be enforceable as if such void or\nunenforceable provision or term had never been a part hereof. To the extent that any obligations of Employee in this Agreement shall\nbe illegal and/or unenforceable with respect to any jurisdiction, said covenants shall not be affected thereby with respect to each other\njurisdiction, such covenants with respect to each such jurisdiction being construed as severable and independent. In the event Seller\nshall violate any legally enforceable provision of this Agreement as to which there is a specific time period during which Athersys is\nprohibited from taking certain actions or from engaging in certain activities, as set forth in this Agreement, then, in such event, such\nviolation shall toll the running of such time period from the date such violation commences until, and including, the date such\nviolation shall cease.\n3\n5. Notice. Notices, demands and all other communications provided for in this Agreement will be in writing and will be deemed to\nhave been duly given when delivered, if delivered personally, or (unless otherwise specified) mailed by United States certified or\nregistered mail, return receipt requested, postage prepaid, and when received if delivered otherwise, addressed as follows:\nIf to Employee:\nDr. John J. Harrington\n6487 Meadowbrook Dr.\nMentor, Ohio 44060\nIf to Athersys:\nAthersys, Inc.\n11000 Cedar Avenue, Suite 210\nCleveland, Ohio 44106\nAttention: Dr. Gil Van Bokkelen, President\nor to such other address as any party may have furnished to the other in writing, except that notices of change of address will be\neffective only upon receipt.\n6. General Provisions. No provision of this Agreement may be modified, waived or discharged unless such waiver, modification\nor discharge is agreed to in writing signed by the parties hereto. No waiver by either party to this Agreement at any time of any\nbreach by the other party of, or compliance with, any condition or provision of this Agreement to be performed by such other party\nwill be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. The validity,\ninterpretation, construction and performance of this Agreement will be governed by the laws of the State of Ohio without regard to its\nconflicts of law principles.\n7. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original but\nall of which together will constitute one and the same instrument.\n8. Captions. The headings of paragraphs are included solely for convenience of reference only and are not part of this Agreement\nand will not be used in construing it.\n9. Consent to Jurisdiction and Forum. Employee expressly and irrevocably agrees that Athersys may bring any action, whether at\nlaw or in equity, arising out of or based upon this Agreement in the State of Ohio or in any federal court therein. Employee\nirrevocably consents to personal jurisdiction in such court and to accept service of process in accordance with the provisions of the\nlaws of the State of Ohio.\n4\n10. Entire Agreement. This Agreement sets forth the entire agreement of the parties in respect of the subject matter contained in\nthis Agreement and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or\nwarranties, whether oral or written, by any officer, employee or representative of any party; and any prior agreement of the parties in\nrespect of the subject mater contained in this Agreement is terminated and canceled.\nIN WITNESS WHEREOF, the parties have executed this Non-Competition and Confidentiality Agreement as of the date first\nabove written.\nATHERSYS, INC.\nBy:\n/s/ Gil Van Bokkelen\nGil Van Bokkelen, President & CEO\n“EMPLOYEE”\n/s/ Dr. John J. Harrington\nDr. John J. Harrington\n5	EXHIBIT 10.19\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nThis Non-Competition and Confidentiality Agreement (”A greement”), is made as of the first day of December, 1998 and effective\nApril 1, 1998 between DR. JOHN J. HARRINGTON, an individual (”Employee”), and ATHERSY S, INC., a Delaware corporation\n(”A thersys”).\nRECITALS:\nA. Athersys is engaged in the competitive business of developing, marketing and selling certain core biotechnologies for the\ndiagnosis and treatment of genetic and infectious disease.\nB. Athersys employs Employee as of the date hereof (provided that nothing stated herein shall be deemed to be a promise by\nAthersys of future employment).\nC. A s a part of such employment, Employee has access to certain ”Confidential Information” (as herein defined).\nD. In consideration of the new employment arrangements set forth in the Amended and Restated Employment Agreement between\nEmployee and Athersys dated as of the date hereof (the ”Employment Agreement"), Employee has agreed to execute this Agreement.\nE. For the purposes of this Agreement, the term ”A thersys" shall be deemed to include Athersys, its predecessor and any affiliates\nor subsidiaries, together with their respective successors or assigns.\nAGREEMENTS:\nNOW THEREFORE, for and in consideration of the premises, mutual covenants and undertakings set forth herein, and other good\nand valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, the parties to this\nA greement hereby agree as follows:\n1. Non-Competition and Confidentialifl.\n(a) Employee agrees that, so long as he remains employed by Athersys in any capacity and for a period of eighteen (18) months\nafter the effective date of the termination of said employment by Athersys or Employee, Employee shall not do or suffer any of the\nfollowing:\n(i) Own, control or manage, or participate in the ownership, control or management of, render consulting services to, or be\nemployed by any corporation, partnership or other entity that is engaged in the business of researching, developing, marketing or\nselling any technology relating to the field of gene therapy, including,\nwithout limitation, synthetic microchromosomal technologies, gene activation technologies, centromere technologies or any other\ntype of technology, which is substantially similar to that researched, developed, marketed or sold or contemplated to be researched,\ndeveloped, marketed or sold by Athersys prior to the Termination Effective Date in any geographic areas in the United States or any\ncountries outside the United States where Athersys has researched, developed, marketed or sold such technologies prior to the\nTermination Effective Date. For the purposes of this subsection (i), the term ”ownership” shall be defined as holding five percent\n(5%) or more ownership interest or voting control interest in the entity in issue;\n(ii) Knowingly attempt to employ or employ, attempt to assist in employing or assist in employing, or otherwise interfere with the\nemployment of, any employee or officer of Athersys; or\n(iii) Solicit, divert or attempt to divert any customer, sponsor, investor, research collaborator or other business relations of\nAthersys from associating, collaborating or otherwise doing business with Athersys.\nNotwithstanding the foregoing, the provisions of this Section 1(a) shall terminate on the date that Employee ceases to receive the\ntermination compensation from Athersys pursuant to Section 8(c) of the Employment Agreement.\n(b) Employee agrees that from and after the date of this Agreement, Employee shall not disclose, divulge, discuss, copy or\notherwise use or suffer to be used any item of confidential information of Athersys, including, without limitation, technologies,\nproduct development procedures, new products, customer lists, client lists, sales methods, pricing or cost data, software or software\ndocumentation, methods, product research or engineering data, documents, instruments, drawings, or designs (”Confidential\nInformation”). The term ”Confidential Information” shall include, by way of example not limitation, any information which, in the\ngood faith opinion of the Board of Directors, constitutes ”trade secrets” of Athersys, as such term is defined in Ohio Revised Code\nSection 1333.51.\n2. lnjunctive Relief. Employee acknowledges and agrees that: (i) each term of Section 1 of this Agreement is fully required to\nprotect Athersys' interest and that no term in Section 1 confers a benefit on Athersys that is disproportionate to the detriment imposed\non Employee and each provision of such Section 1 is reasonable in time and territory and does not stifle Employee' s inherent skill\nand experience and will not operate as a bar to Employee' s sole means of support; (ii) the remedy at law for any breach by Employee\nof any term of Section 1 would be inadequate; and (iii) the damages flowing from such breach are not readily susceptible to\nmeasurement in monetary terms. Accordingly, upon adequate proof of Employee’s violation of any legally enforceable provision of\nSection 1 of this Agreement, Athersys shall be entitled to immediate injunctive relief and may obtain a temporary order restraining\nany threatened or future breach. Nothing in this Agreement shall\nbe deemed to limit Athersys' remedies at law or in equity for any breach by Employee of any term of this Agreement.\n3. Ownership of Technology. Any technology, procedure, design feature, invention, improvement, development or discovery\n(whether or not patentable or copyrightable) that Employee may conceive of, make, invent, suggest, or otherwise obtain knowledge\nof during the course of Employee' s employment or other relationship with Athersys (whether individually or jointly with any other\nperson or persons), relating in any way to the field of gene therapy or any other business of Athersys or to the proposed contemplated\nbusiness of which Athersys will be a part of, shall be the sole, exclusive and absolute property of Athersys, as shall all physical\nembodiments and manifestations thereof and all research data regarding, including, without limitation, all proprietary rights,\ntechniques, specifications, any methods and apparatuses for data manipulation and utilization. Employee will immediately disclose\nany such technology, procedure, design feature, invention, improvement, development or discovery to Athersys and will, at any time,\nupon Athersys' request and without additional compensation, execute any documents and give all lawful testimony which may be\nrequired respecting the patenting or copyrighting of any such technology, procedure, design feature, invention, improvement,\ndevelopment or discovery, as well as any papers which may be considered necessary or helpful by Athersys in the processing of\napplications for patents thereon, to vest title thereto in Athersys, or which may relate to any litigation or controversy in connection\ntherewith, all expenses incident thereto to be borne by Athersys. Employee, whether or not still employed by Athersys, will cooperate\nwith Athersys, at Athersys' expense, in any litigation or other matter relating to Athersys' right in any of the foregoing.\n4. Severabilifl. In the event that Sections 1, 2 and 3 shall be found by a court of competent jurisdiction to be invalid or\nunenforceable as against public policy, such court shall exercise its discretion in reforming such provisions to the end that Employee\nshall be subject to nondisclosure, noncompetitive and noninterference covenants that are reasonable under the circumstances and\nenforceable by Athersys. In the event that any other provision or term of this Agreement is found to be void or unenforceable to any\nextent for any reason, it is the agreed-upon intent of the parties hereto that all remaining provisions or terms of this Agreement shall\nremain in full force and effect to the maximum extent permitted and that this Agreement shall be enforceable as if such void or\nunenforceable provision or term had never been a part hereof. To the extent that any obligations of Employee in this Agreement shall\nbe illegal and/or unenforceable with respect to any jurisdiction, said covenants shall not be affected thereby with respect to each other\njurisdiction, such covenants with respect to each such jurisdiction being construed as severable and independent. In the event Seller\nshall violate any legally enforceable provision of this A greement as to which there is a specific time period during which Athersys is\nprohibited from taking certain actions or from engaging in certain activities, as set forth in this Agreement, then, in such event, such\nviolation shall toll the running of such time period from the date such violation commences until, and including, the date such\nviolation shall cease.\n5. Notice. Notices, demands and all other communications provided for in this Agreement will be in writing and will be deemed to\nhave been duly given when delivered, if delivered personally, or (unless otherwise specified) mailed by United States certified or\nregistered mail, return receipt requested, postage prepaid, and when received if delivered otherwise, addressed as follows:\nIf to Employee:\nDr. John J. Harrington\n6487 Meadowbrook Dr.\nMentor, Ohio 44060\nIf to Athersys:\nAthersys, Inc.\n11000 Cedar Avenue, Suite 210\nCleveland, Ohio 44106\nAttention: Dr. Gil V an B okkelen, President\nor to such other address as any party may have furnished to the other in writing, except that notices of change of address will be\neffective only upon receipt.\n6. General Provisions. No provision of this Agreement may be modified, waived or discharged unless such waiver, modification\nor discharge is agreed to in writing signed by the parties hereto. No waiver by either party to this Agreement at any time of any\nbreach by the other party of, or compliance with, any condition or provision of this Agreement to be performed by such other party\nwill be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. The validity,\ninterpretation, construction and performance of this Agreement will be governed by the laws of the State of Ohio without regard to its\nconflicts of law principles.\n7. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original but\nall of which together will constitute one and the same instrument.\n8. Captions. The headings of paragraphs are included solely for convenience of reference only and are not part of this Agreement\nand will not be used in construing it.\n9. Consent to urisdiction and Forum. Employee expressly and irrevocably agrees that Athersys may bring any action, whether at\nlaw or in equity, arising out of or based upon this Agreement in the State of Ohio or in any federal court therein. Employee\nirrevocably consents to personal jurisdiction in such court and to accept service of process in accordance with the provisions of the\nlaws of the State of Ohio.\n10. Entire Agreement. This Agreement sets forth the entire agreement of the parties in respect of the subject matter contained in\nthis Agreement and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or\nwarranties, whether oral or written, by any officer, employee or representative of any party; and any prior agreement of the parties in\nrespect of the subject mater contained in this Agreement is terminated and canceled.\nIN WITNESS WHEREOF, the parties have executed this Non-Competition and Confidentiality Agreement as of the date first\nabove written.\nATHERSY S, INC.\nBy: /s/ Gil Van Bokkelen\n(31 Van BoERe en, Pres1dent82 (2E0\n”EMPLOY EE"\n/s/ Dr. John]. Harrington\nr. o . arring on	EXHIBIT 10.19\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nThis Non-Competition and Confidentiality A greement "Agreement"), is made as of the first day of December, 1998 and effective\npril 1, 1998 between DR. JOHN J. IARRINGTON, an individual ("Employee"), and ATHERSY S, INC., a Delaware corporation\n("Athersys").\nRECITALS:\nA. A thersys is engaged in the competitive business of developing, marketing and selling certain core biotechnologies for the\ndiagnosis and treatment of genetic and infectious disease.\nB. A thersys employs Employee as of the date hereof (provided that nothing stated herein shall be deemed to be a promise by\nA thersys of future employment).\nC. A a part of such employment, Employee has access to certain "Confidential Information" (as herein defined).\nD. In consideration of the new employment arrangements set forth in the Amended and Restated Employment A greement between\nEmployee and A thersys dated as of the date hereof (the "Employment A greement"), Employee has agreed to execute this A greement.\nE. For the purposes of this Agreement, the term "Athersys" shall be deemed to include A thersys, its predecessor and any affiliates\nor subsidiaries, together with their respective successors or assigns.\nAGREEMENTS:\nNOW THEREFORE, for and in consideration of the premises, mutual covenants and undertakings set forth herein, and other good\nand valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, the parties to this\nA greement hereby agree as follows:\n1. Non-Competition and Confidentiality.\n(a) Employee agrees that, so long as he remains employed by A thersys in any capacity and for a period of eighteen (18) months\nafter the effective date of the termination of said employment by A thersys or Employee, Employee shall not do or suffer any of the\nfollowing:\n(i) Own, control or manage, or participate in the ownership, control or management of, render consulting services to, or be\nemployed by any corporation partnership or other entity that is engaged in the business of researching, developing, marketing or\nselling any technology relating to the field of gene therapy, including,\nwithout limitation, synthetic microchromosomal technologies, gene activation technologies, centromere technologies or any other\ntype of technology, which is substantially similar to that researched, developed, marketed or sold or contemplated to be researched,\ndeveloped, marketed or sold by A thersys prior to the Termination Effective Date in any geographic areas in the United States or any\ncountries outside the United States where A thersys has researched developed, marketed or sold such technologies prior to the\nTermination Effective Date. For the purposes of this subsection (i), the term "ownership" shall be defined as holding five percent\n(5%) or more ownership interest or voting control interest in the entity in issue;\n(ii) Knowingly attempt to employ or employ, attempt to assist in employing or assist in employing, or otherwise interfere with the\nemployment of, any employee or officer of A thersys; or\n(iii) Solicit, divert or attempt to divert any customer, sponsor, investor, research collaborator or other business relations of\nA thersys from associating, collaborating or otherwise doing business with A thersys.\nNotwithstanding the foregoing, the provisions of this Section 1(a) shall terminate on the date that Employee ceases to receive the\ntermination compensation from A thersys pursuant to Section 8(c) of the Employment A greement\n(b) Employee agrees that from and after the date of this greement, Employee shall not disclose, divulge, discuss, copy or\notherwise use or suffer to be used any item of confidential information of A thersys, including, without limitation, technologies,\nproduct development procedures, new products, customer lists, client lists, sales methods, pricing or cost data, software or software\ndocumentation, methods, product research or engineering data, documents, instruments, drawings or designs ("Confidential\nInformation"). The term "Confidential Information" shall include, by way of example not limitation, any information which, in the\ngood faith opinion of the Board of Directors, constitutes "trade secrets" of A thersys, as such term is defined in Ohio Revised Code\nSection 1333.51.\n2. Injunctive Relief. Employee acknowledges and agrees that: (i) each term of Section 1 of this greement is fully required to\nprotect A thersys' interest and that no term in Section 1 confers a benefit on A thersys that is disproportionate to the detriment imposed\non Employee and each provision of such Section 1 is reasonable in time and territory and does not stifle Employee's inherent skill\nand experience and will not operate as a bar to Employee's sole means of support; (ii) the remedy at law for any breach by Employee\nof any term of Section 1 would be inadequate; and (iii) the damages flowing from such breach are not readily susceptible to\nmeasurement in monetary terms. A ccordingly, upon adequate proof of Employee's violation of any legally enforceable provision\nof\nSection 1 of this A greement, A thersys shall be entitled to immediate injunctive relief and may obtain a temporary order restraining\nany threatened or future breach. Nothing in this Agreement shall\n2\nbe deemed to limit A thersys' remedies at law or in equity for any breach by Employee of any term of this A greement.\n3. Ownership of Technology Any technology, procedure, design feature, invention, improvement, development or discovery\n(whether or not patentable or copyrightable) that Employee may conceive of, make, invent, suggest, or otherwise obtain knowledge\nof during the course of Employee's employment or other relationship with A thersys (whether individually or jointly with any other\nperson or persons), relating in any way to the field of gene therapy or any other business of A thersys or to the proposed contemplated\nbusiness of which A thersys will be a part of, shall be the sole, exclusive and absolute property of thersys, as shall all physical\nembodiments and manifestations thereof and all research data regarding, including, without limitation, all proprietary rights,\ntechniques, specifications, any methods and apparatuses for data manipulation and utilization. Employee will immediately disclose\nany such technology, procedure, design feature, invention, improvement, development or discovery to A thersys and will, at any time,\nupon A thersys' request and without additional compensation, execute any documents and give all lawful testimony which may be\nrequired respecting the patenting or copyrighting of any such technology, procedure, design feature, invention, improvement,\ndevelopment or discovery, as well as any papers which may be considered necessary or helpful by A thersys in the processing of\napplications for patents thereon, to vest title thereto in A thersys, or which may relate to any litigation or controversy in connection\ntherewith, all expenses incident thereto to be borne by A thersys. Employee, whether or not still employed by thersys, will cooperate\nwith A thersys, at thersys' expense, in any litigation or other matter relating to Athersys' right in any of the foregoing.\n4. Severability. In the event that Sections 1, 2 and 3 shall be found by a court of competent jurisdiction to be invalid or\nunenforceable as against public policy, such court shall exercise its discretion in reforming such provisions to the end that Employee\nshall be subject to nondisclosure, noncompetitive and noninterference covenants that are reasonable under the circumstances and\nenforceable by A thersys. In the event that any other provision or term of this A greement is found to be void or unenforceable to\nany\nextent for any reason, it is the agreed-upon intent of the parties hereto that all remaining provisions or terms of this greement shall\nremain in full force and effect to the maximum extent permitted and that this A greement shall be enforceable as if such void or\nunenforceable provision or term had never been a part hereof. To the extent that any obligations of Employee in this A greement shall\nbe illegal and/or unenforceable with respect to any jurisdiction said covenants shall not be affected thereby with respect to each other\njurisdiction, such covenants with respect to each such jurisdiction being construed as severable and independent. In the event Seller\nshall violate any legally enforceable provision of this A greement as to which there is a specific time period during which A thersys is\nprohibited from taking certain actions or from engaging in certain activities, as set forth in this greement, then, in such event, such\nviolation shall toll the running of such time period from the date such violation commences until, and including, the date such\nviolation shall cease.\n3\n5. Notice. Notices, demands and all other communications provided for in this A greement will be in writing and will be deemed to\nhave been duly given when delivered, if delivered personally, or (unless otherwise specified) mailed by United States certified or\nregistered mail, return receipt requested, postage prepaid, and when received if delivered otherwise, addressed as follows:\nIf to Employee:\nDr. John J. Harrington\n6487 Meadowbrook Dr.\nMentor, Ohio 44060\nIf to A thersys:\nA thersys, Inc.\n11000 Cedar Avenue, Suite 210\nCleveland, Ohio 44106\nA ttention: Dr. Gil Van Bokkelen, President\nor\nto such other address as any party may have furnished to the other in writing, except that notices of change of address will be\neffective only upon receipt.\n6. General Provisions. No provision of this Agreement may be modified, waived or discharged unless such waiver, modification\nor discharge is agreed to in writing signed by the parties hereto. No waiver by either party to this A greement at any time of any\nbreach by the other party of, or compliance with, any condition or provision of this A greement to be performed by such other party\nwill be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. The validity,\ninterpretation, construction and performance of this A greement will be governed by the laws of the State of Ohio without regard to its\nconflicts of law principles.\n7. Counterparts. This A greement may be executed in one or more counterparts, each of which will be deemed to be an original but\nall of which together will constitute one and the same instrument.\n8. Captions. The headings of paragraphs are included solely for convenience of reference only and are not part of this Agreement\nand will not be used in construing it.\n9. Consent to Jurisdiction and Forum. Employee expressly and irrevocably agrees that A thersys may bring any action, whether at\nlaw or in equity, arising out of or based upon this A greement in the State of Ohio or in any federal court therein. Employee\nirrevocably consents to personal jurisdiction in such court and to accept service of process in accordance with the provisions of the\nlaws of the State of Ohio.\n4\n10. Entire A greement. This A greement sets forth the entire agreement of the parties in respect of the subject matter contained in\nthis A greement and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or\nwarranties, whether oral or written by any officer, employee or representative of any party; and any prior agreement of the parties in\nrespect of the subject mater contained in this A greement is terminated and canceled.\nIN WITNESS WHEREOF, the parties have executed this Non-Competition and Confidentiality Agreement as of the date first\nabove written.\nATHERSY S, INC.\nBy:\n/s/ Gil Van Bokkelen\nGil Van Bokkelen, President CEO\n"EMPLOY EE"\n/s/ Dr. John J. Harrington\nDr. John Harrngton\n5	EXHIBIT 10.19\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nThis Non-Competition and Confidentiality Agreement (“Agreement”), is made as of the first day of December, 1998 and effective\nApril 1, 1998 between DR. JOHN J. HARRINGTON, an individual (“Employee”), and ATHERSYS, INC., a Delaware corporation\n(“Athersys”).\nRECITALS:\nA. Athersys is engaged in the competitive business of developing, marketing and selling certain core biotechnologies for the\ndiagnosis and treatment of genetic and infectious disease.\nB. Athersys employs Employee as of the date hereof (provided that nothing stated herein shall be deemed to be a promise by\nAthersys of future employment).\nC. As a part of such employment, Employee has access to certain “Confidential Information” (as herein defined).\nD. In consideration of the new employment arrangements set forth in the Amended and Restated Employment Agreement between\nEmployee and Athersys dated as of the date hereof (the “Employment Agreement”), Employee has agreed to execute this Agreement.\nE. For the purposes of this Agreement, the term “Athersys” shall be deemed to include Athersys, its predecessor and any affiliates\nor subsidiaries, together with their respective successors or assigns.\nAGREEMENTS:\nNOW THEREFORE, for and in consideration of the premises, mutual covenants and undertakings set forth herein, and other good\nand valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, the parties to this\nAgreement hereby agree as follows:\n1. Non-Competition and Confidentiality.\n(a) Employee agrees that, so long as he remains employed by Athersys in any capacity and for a period of eighteen (18) months\nafter the effective date of the termination of said employment by Athersys or Employee, Employee shall not do or suffer any of the\nfollowing:\n(i) Own, control or manage, or participate in the ownership, control or management of, render consulting services to, or be\nemployed by any corporation, partnership or other entity that is engaged in the business of researching, developing, marketing or\nselling any technology relating to the field of gene therapy, including,\nwithout limitation, synthetic microchromosomal technologies, gene activation technologies, centromere technologies or any other\ntype of technology, which is substantially similar to that researched, developed, marketed or sold or contemplated to be researched,\ndeveloped, marketed or sold by Athersys prior to the Termination Effective Date in any geographic areas in the United States or any\ncountries outside the United States where Athersys has researched, developed, marketed or sold such technologies prior to the\nTermination Effective Date. For the purposes of this subsection (i), the term “ownership” shall be defined as holding five percent\n(5%) or more ownership interest or voting control interest in the entity in issue;\n(ii) Knowingly attempt to employ or employ, attempt to assist in employing or assist in employing, or otherwise interfere with the\nemployment of, any employee or officer of Athersys; or\n(iii) Solicit, divert or attempt to divert any customer, sponsor, investor, research collaborator or other business relations of\nAthersys from associating, collaborating or otherwise doing business with Athersys.\nNotwithstanding the foregoing, the provisions of this Section 1(a) shall terminate on the date that Employee ceases to receive the\ntermination compensation from Athersys pursuant to Section 8(c) of the Employment Agreement.\n(b) Employee agrees that from and after the date of this Agreement, Employee shall not disclose, divulge, discuss, copy or\notherwise use or suffer to be used any item of confidential information of Athersys, including, without limitation, technologies,\nproduct development procedures, new products, customer lists, client lists, sales methods, pricing or cost data, software or software\ndocumentation, methods, product research or engineering data, documents, instruments, drawings, or designs (“Confidential\nInformation”). The term “Confidential Information” shall include, by way of example not limitation, any information which, in the\ngood faith opinion of the Board of Directors, constitutes “trade secrets” of Athersys, as such term is defined in Ohio Revised Code\nSection 1333.51 .\n2. Injunctive Relief. Employee acknowledges and agrees that: (i) each term of Section 1 of this Agreement is fully required to\nprotect Athersys’ interest and that no term in Section 1 confers a benefit on Athersys that is disproportionate to the detriment imposed\non Employee and each provision of such Section 1 is reasonable in time and territory and does not stifle Employee’s inherent skill\nand experience and will not operate as a bar to Employee’s sole means of support; (ii) the remedy at law for any breach by Employee\nof any term of Section 1 would be inadequate; and (iii) the damages flowing from such breach are not readily susceptible to\nmeasurement in monetary terms. Accordingly, upon adequate proof of Employee’s violation of any legally enforceable provision of\nSection 1 of this Agreement, Athersys shall be entitled to immediate injunctive relief and may obtain a temporary order restraining\nany threatened or future breach. Nothing in this Agreement shall\n2\nbe deemed to limit Athersys’ remedies at law or in equity for any breach by Employee of any term of this Agreement.\n3. Ownership of Technology. Any technology, procedure, design feature, invention, improvement, development or discovery\n(whether or not patentable or copyrightable) that Employee may conceive of, make, invent, suggest, or otherwise obtain knowledge\nof during the course of Employee’s employment or other relationship with Athersys (whether individually or jointly with any other\nperson or persons), relating in any way to the field of gene therapy or any other business of Athersys or to the proposed contemplated\nbusiness of which Athersys will be a part of, shall be the sole, exclusive and absolute property of Athersys, as shall all physical\nembodiments and manifestations thereof and all research data regarding, including, without limitation, all proprietary rights,\ntechniques, specifications, any methods and apparatuses for data manipulation and utilization. Employee will immediately disclose\nany such technology, procedure, design feature, invention, improvement, development or discovery to Athersys and will, at any time,\nupon Athersys’ request and without additional compensation, execute any documents and give all lawful testimony which may be\nrequired respecting the patenting or copyrighting of any such technology, procedure, design feature, invention, improvement,\ndevelopment or discovery, as well as any papers which may be considered necessary or helpful by Athersys in the processing of\napplications for patents thereon, to vest title thereto in Athersys, or which may relate to any litigation or controversy in connection\ntherewith, all expenses incident thereto to be borne by Athersys. Employee, whether or not still employed by Athersys, will cooperate\nwith Athersys, at Athersys’ expense, in any litigation or other matter relating to Athersys’ right in any of the foregoing.\n4. Severability. In the event that Sections 1, 2 and 3 shall be found by a court of competent jurisdiction to be invalid or\nunenforceable as against public policy, such court shall exercise its discretion in reforming such provisions to the end that Employee\nshall be subject to nondisclosure, noncompetitive and noninterference covenants that are reasonable under the circumstances and\nenforceable by Athersys. In the event that any other provision or term of this Agreement is found to be void or unenforceable to any\nextent for any reason, it is the agreed-upon intent of the parties hereto that all remaining provisions or terms of this Agreement shall\nremain in full force and effect to the maximum extent permitted and that this Agreement shall be enforceable as if such void or\nunenforceable provision or term had never been a part hereof. To the extent that any obligations of Employee in this Agreement shall\nbe illegal and/or unenforceable with respect to any jurisdiction, said covenants shall not be affected thereby with respect to each other\njurisdiction, such covenants with respect to each such jurisdiction being construed as severable and independent. In the event Seller\nshall violate any legally enforceable provision of this Agreement as to which there is a specific time period during which Athersys is\nprohibited from taking certain actions or from engaging in certain activities, as set forth in this Agreement, then, in such event, such\nviolation shall toll the running of such time period from the date such violation commences until, and including, the date such\nviolation shall cease.\n3\n5. Notice. Notices, demands and all other communications provided for in this Agreement will be in writing and will be deemed to\nhave been duly given when delivered, if delivered personally, or (unless otherwise specified) mailed by United States certified or\nregistered mail, return receipt requested, postage prepaid, and when received if delivered otherwise, addressed as follows:\nIf to Employee:\nDr. John J. Harrington\n6487 Meadowbrook Dr.\nMentor, Ohio 44060\nIf to Athersys:\nAthersys, Inc.\n11000 Cedar Avenue, Suite 210\nCleveland, Ohio 44106\nAttention: Dr. Gil Van Bokkelen, President\nor to such other address as any party may have furnished to the other in writing, except that notices of change of address will be\neffective only upon receipt.\n6. General Provisions. No provision of this Agreement may be modified, waived or discharged unless such waiver, modification\nor discharge is agreed to in writing signed by the parties hereto. No waiver by either party to this Agreement at any time of any\nbreach by the other party of, or compliance with, any condition or provision of this Agreement to be performed by such other party\nwill be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. The validity,\ninterpretation, construction and performance of this Agreement will be governed by the laws of the State of Ohio without regard to its\nconflicts of law principles.\n7. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original but\nall of which together will constitute one and the same instrument.\n8. Captions. The headings of paragraphs are included solely for convenience of reference only and are not part of this Agreement\nand will not be used in construing it.\n9. Consent to Jurisdiction and Forum. Employee expressly and irrevocably agrees that Athersys may bring any action, whether at\nlaw or in equity, arising out of or based upon this Agreement in the State of Ohio or in any federal court therein. Employee\nirrevocably consents to personal jurisdiction in such court and to accept service of process in accordance with the provisions of the\nlaws of the State of Ohio.\n4\n10. Entire Agreement. This Agreement sets forth the entire agreement of the parties in respect of the subject matter contained in\nthis Agreement and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or\nwarranties, whether oral or written, by any officer, employee or representative of any party; and any prior agreement of the parties in\nrespect of the subject mater contained in this Agreement is terminated and canceled.\nIN WITNESS WHEREOF, the parties have executed this Non-Competition and Confidentiality Agreement as of the date first\nabove written.\nATHERSYS, INC.\nBy:\n/s/ Gil Van Bokkelen\nGil Van Bokkelen, President & CEO\n“EMPLOYEE”\n/s/ Dr. John J. Harrington\nDr. John J. Harrington\n5
b2a6e7e95e101794df750e892a8afa42.pdf	effective_date jurisdiction party term	EX-99.E3 3 dex99e3.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(3)\nLOGO\n345 California Street, Suite 2400 San Francisco, CA 94104\nTel: (800) 981-1203\nFax: (415) 277-1552\nTel: (415) 277-1500\nPiper Jaffray & Co. Since 1895. Member SIPC and NYSE.\nCONFIDENTIAL\nFebruary 19, 2008\nMr. Anthony Morro\nBay Harbour Management, L.C.\n885 Third Avenue, 34th Floor\nNew York, NY 10022\nDear Mr. Morro:\nWe have advised you that Piper Jaffray & Co. (“Piper Jaffray”) has been retained on behalf of BUCA, Inc. (the “Company”) to explore a possible\nacquisition transaction (“Transaction”) between the Company and Bay Harbour Management, L.C. (“you” or “your”). You have indicated an interest\nin a Transaction with the Company and agree to enter into this letter agreement to facilitate the delivery of certain information to you to assist you in\nthe evaluation of a Transaction.\n1. Evaluation Material\n(a) As a condition to furnishing you with such information you agree to treat confidentially such information and any other information, whether\nwritten or oral, relating to the Company that Piper Jaffray or any of the Company’s officers, employees, affiliates, representatives or agents furnish,\nwhether directly or indirectly, whether before or after the date hereof, to you or to which you are otherwise afforded access (collectively, the\n“Evaluation Material”). The term “Evaluation Material” shall also include any and all information which contains or otherwise reflects or is derived,\ndirectly or indirectly, therefrom, as well as any and all notes, analyses, compilations, studies or other documents prepared by any of (i) you, (ii) your\ndirectors, agents, representatives and employees and advisors retained and engaged by you in connection with the Transaction (collectively, your\n“Agents”), or (iii) your prospective debt financing sources who have been identified in writing to Piper Jaffray (collectively, your “Lenders”) which\ncontain or otherwise reflect or are derived, directly or indirectly, from such information. Notwithstanding the foregoing, the term Evaluation Material\ndoes not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by you or your Agents or\nLenders or (ii) becomes available to you on a non-confidential basis from a source other than the Company or any of its Agents, provided that such\nsource is not known by you to be bound by any contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with\nrespect to such information and you and your Representatives have no reasonable basis for concluding that such source may be so bound.\n(b) You agree that the Evaluation Material shall be held and treated by you and your Agents and Lenders with the utmost and strictest\nconfidence, and shall not, without the prior written consent of the Company, be disclosed by you or your Agents or Lenders in any manner\nwhatsoever, in whole or in part, or used by you or your Agents or Lenders other than for the purpose of evaluating a Transaction. The Evaluation\nMaterial shall not, without the prior written consent of the Company, be disclosed to any person or entity other than your Agents or Lenders who\nneed to know such information for the purpose of evaluating a Transaction (and in those instances only to the extent justifiable by that need);\nprovided, however, that such Agents or Lenders must be informed by you of the confidential nature of the Evaluation Material and must agree to be\nbound by this letter agreement prior to any such disclosure. You agree to be responsible for any disclosure of Evaluation Material or any breach of\nthis letter agreement by your Agents or Lenders as if they were a party hereto. In addition, you will not, and you will direct your Agents and Lenders\nnot to, disclose that discussions or negotiations are taking place concerning a possible Transaction between you and the Company, or any of the\nterms, conditions or other information with respect to any such possible Transaction including the status thereof. With respect to any Evaluation\nMaterial disclosed to you that is the subject of a confidentiality agreement between the Company or Piper Jaffray and any third party, you agree to\ncomply with the terms of such confidentiality agreements, for the benefit of each of the Company and Piper Jaffray, as if you were a recipient of\nconfidential information thereunder and a signatory thereto, but only to the extent that such confidentiality agreements are more restrictive than the\nterms hereof.\n(c) Until the earliest of the execution of a definitive agreement, an acquisition of the Company by you or a third party, or eighteen months (18) from\nthe date of this agreement, you will not initiate or maintain contact with any officer, director, employee, agent, member, creditor, supplier, or of the\nCompany regarding the Evaluation Material or the business, operations, prospects, or finances of the Company except Piper Jaffray.\n2. Disclosure Required by Law. If you or your Agents or Lenders are required by law or requested or required by regulatory agencies to\ndisclose Evaluation Material, you shall provide the Company with prompt written notice thereof, so that the Company may seek a protective order or\nother appropriate remedy, as well as notice of the terms and circumstances surrounding such request or requirement. You and your Agents and\nLenders will use reasonable efforts to obtain and will not oppose action by the Company to obtain such protective order or other appropriate remedy.\nIf such protective order or other remedy is not obtained, then you will furnish only that portion of the Evaluation Material which you are advised by\nyour legal counsel is legally required and will exercise all reasonable efforts to obtain assurance that confidential treatment, if available, will be\naccorded such Evaluation Material. Without limiting the foregoing, you expressly confirm and agree that (i) no public disclosure with respect to any\ndiscussions or negotiations concerning a possible Transaction is now required by you by reason of securities laws or similar requirements related to\ngeneral disclosure and in the event you determine that such disclosure is required in the future, no such disclosures shall be made unless and until\nyou consult with the Company regarding the necessity and form of any such disclosure and (ii) except as required by applicable law, no government\nor regulatory filings shall be made with respect to a possible Transaction except pursuant to mutual agreement of the parties with respect to the\nmaking and the form and content of any such filings.\n3. Securities Laws. You acknowledge that you are aware, and that you will advise your Agents and Lenders who receive the Evaluation\nMaterial, that the United States securities laws prohibit any person who has material, non-public information concerning the matters which are\nthe subject of this letter agreement from purchasing or selling securities of the Company or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such person including, without limitation, any of your Agents or Lenders, is\nlikely to purchase or sell such securities.\n4. Standstill Agreement. In consideration of the Company furnishing its Evaluation Material, you agree that, beginning on the date of this\nletter and ending on that date which is the earlier of (i) the eighteen month anniversary of the date hereof and (ii) the date on which the Company’s\nboard of directors publicly announces its approval of an acquisition, merger, asset sale or business combination between the Company and a third\nparty involving 50% or more of the Company’s voting securities or a material portion of the Company’s assets, you will not (and will not assist or\nencourage others to) in any manner, directly or indirectly, unless specifically requested in writing in advance by a majority of the Company’s board\nof directors, (i) acquire, or agree, offer or propose to acquire, directly or indirectly, from the Company or any other person, any material portion of\nthe Company’s business or assets (whether in a single transaction or in a series of related transactions), or any of Company’s voting securities or any\nright, warranty or option to acquire any of the foregoing, or propose to enter into, directly or indirectly, any merger or business combination\ninvolving the Company or any of the Company’s subsidiaries or to purchase, directly or indirectly, any material portion of the Company’s assets\n(whether in a single transaction or in a series of related transactions), except, in each event, pursuant to any proposal expressly solicited by the Chief\nExecutive Officer of the Company, and in such event such proposal will not be pursued, directly or indirectly, by you or any of your Affiliates (as\ndefined in Rule 12b-2 of the Exchange Act), if you are hereafter advised by the Company or Piper Jaffray that the Company is no longer interested in\npursuing such proposal; (ii) make any proposal or request to the Company or any of the Company’s officers or directors relating, directly or\nindirectly, to any modification or waiver of any provision of this paragraph; (iii) make or participate in, directly or indirectly, any “solicitation” of\n“proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) to vote or seek to advise or influence any person\nwith respect to the voting of any of the Company’s voting securities; (iv) form, join or in any way participate in a “group” (within the meaning of\nSection 13(d)(3) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any of the Company’s voting\nsecurities; (v) act alone or in concert with others to seek to control or influence the Company’s management or the Company’s board of directors;\n(vi) advise, assist or enter into any discussions, negotiations, arrangements or understandings with any other person with respect to any of the\nforegoing; or (vii) make any public statement or disclosure of any kind with respect to any matter addressed by this paragraph (unless required by\nlaw, and then only in accordance with Section 2 of this agreement) or take any other action which might reasonably be expected to result in any such\npublic disclosure.\n5. Termination of Discussions. You acknowledge and agree that the Company reserves the right, in its sole and absolute discretion, to reject\nany or all proposals and to terminate discussions and negotiations with you at any time and for any reason.\n6. Redelivery of Evaluation Material. If at any time the Company or you advise the other party that it does not wish to continue discussions\nwith respect to a proposed transaction between you and Company, or at any time upon the request of the Company or Piper Jaffray, you shall\npromptly redeliver to the Company all written material containing or reflecting any information contained in the Evaluation Material (including all\ncopies, extracts or other reproductions including those derived from electronic files and electronic correspondence) and agree to destroy all\ndocuments, memoranda, notes and other writings whatsoever (including all copies, extracts or other reproductions as well as all electronic files and\nelectronic correspondence), prepared by you or your Agents or Lenders based on the information contained in the Evaluation Material. Upon\nrequest, you agree to certify the same to the Company or Piper Jaffray in writing. Notwithstanding the return and/or destruction of the\nEvaluation Material, you and your Agents and Lenders will continue to be bound by the obligations of confidentiality and other obligations\nhereunder. However, notwithstanding this paragraph, you will be able to retain copies of the evaluation material for the purposes of satisfying\ninternal and regulatory compliance requirements.\n7. No Warranties of Accuracy or Completeness. You understand and acknowledge that none of the Company, Piper Jaffray nor any of their\naffiliates, agents or representatives makes any representation or warranty, either express or implied, as to the accuracy or completeness of the\nEvaluation Material or any other information provided by or on behalf of the Company. You agree that none of Piper Jaffray, the Company, nor any\nof their affiliates, agents or representatives shall have any liability to you or any of your Agents or Lenders resulting from the use of the Evaluation\nMaterial or such other information or any errors or omissions therefrom. Only those representations and warranties which are made in a final\ndefinitive agreement regarding a transaction, when, as and if executed and subject to such limitations and restrictions as may be specified therein,\nwill have any legal effect.\n8. Non-Exclusivity. You acknowledge and agree that until such time you and the Company have negotiated and executed a definitive\nagreement with respect to the Transaction, the Company is not under a legal obligation of any kind whatsoever with respect to a potential\nTransaction by virtue of this letter agreement or otherwise. Without limiting the foregoing, the Company may without prior notice or liability to you:\n(a) disclose Evaluation Material to and negotiate with any other prospective buyer and enter into a preliminary or definitive agreement with respect\nto the Transaction with any such buyer, (b) change the procedures relating to its consideration of the Transaction and (c) reject any proposals made\nby you or your Agents and Lenders with respect to the Transaction or terminate discussions and negotiations with respect to the Transaction with you\nor with any other person at any time and for any reason.\n9. No Solicitation of Employees. You agree that for a period of eighteen months (18) from the date hereof you will not directly or indirectly\nrecruit, solicit or hire any regional or district managers, corporate office employee, member of senior management of the Company (including store\nmanagers), or other employee of the Company identified to you or with whom you have had contact during your evaluation of the Transaction to\nbecome an employee of yours or any of your affiliates or otherwise interfere with any such employee’s employment relationship with the Company,\nunless the employee has been involuntarily terminated by the Company; provided however, that this prohibition shall not apply to any employee who\nfirst initiates contact with you related to employment in response to a general advertisement or solicitation program through communications made\navailable to the public generally.\n10. Equitable Remedies. It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter\nagreement and that the Company shall be entitled to equitable relief, including specific performance and injunction, as a remedy for any such breach\nwithout posting a bond or other security. Such remedies shall not be deemed to be the exclusive remedies for your breach of this letter agreement,\nbut shall be in addition to all other remedies available at law or equity to the Company.\n11. Governing Law; Jurisdiction; Miscellaneous. This letter agreement shall be governed by and construed in accordance with the internal\nlaws of the State of Minnesota, without giving effect to the principles of conflict of laws thereof. Your obligations of confidentiality contained in this\nletter agreement shall terminate on the second anniversary of the date of this agreement. This letter agreement may be amended, modified or waived\nonly in writing signed by the parties. No failure or delay in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor\nwill any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder. In case any provision of this letter agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the\nremaining provisions hereof shall not in any way be affected or impaired thereby. You agree that any dispute under this letter agreement shall be\ndetermined in the first instance by district courts (Federal or state) located within the State of Minnesota, and you hereby submit and consent to such\ncourts’ exercise of jurisdiction. The prevailing party in any suit to enforce this letter agreement shall be entitled to recover its reasonable costs and\nattorneys’ fees. A fax copy of this signed letter agreement shall be enforceable to the same extent as an original.\nUnder no circumstances should the Company or any of its officers, directors, employees, agents, shareholders, creditors or suppliers be\ncontacted directly. All contacts with the Company relating to the potential Transaction, the Evaluation Material or the business, operations,\nprospects, or finances of the Company shall be arranged through Piper Jaffray.\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this letter agreement, whereupon it will constitute\nour agreement with respect to the subject matter hereof.\nSincerely,\nPIPER JAFFRAY & CO.\nas Agent for and on behalf of the Company\nBy /s/ John T. Twichell\nMr. John T. Twichell\nManaging Director, Investment Banking\nBAY HARBOUR MANAGEMENT, L.C .\nBy /s/ Anthony C. Morrow\nIts VP and General Counsel	EX-99.E3 3 dex99e3.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(3)\n. LOGO\n345 California Street, Suite 2400 San Francisco, CA 94104\nTel: (800) 981-1203\nFax: (415) 277-1552\nTel: (415) 277-1500\nPiper Jaffray & Co. Since 1895. Member SIPC and NY SE.\nCONFIDENTIAL\nFebruary 19, 2008\nMr. Anthony Morro\nBay Harbour Management, L.C.\n885 Third Avenue, 34th Floor\nNew York, NY 10022\nDear Mr. Morro:\nWe have advised you that Piper Jaffray & Co. (“Piper Jaffray”) has been retained on behalf of BUCA, Inc. (the “Company”) to explore a possible\nacquisition transaction (“Transaction”) between the Company and Bay Harbour Management, L.C. (“you” or “your”). You have indicated an interest\nin a Transaction with the Company and agree to enter into this letter agreement to facilitate the delivery of certain information to you to assist you in\nthe evaluation of a Transaction.\n1. Evaluation Material\n(a) As a condition to furnishing you with such information you agree to treat confidentially such information and any other information, whether\nwritten or oral, relating to the Company that Piper Jaffray or any of the Company’s officers, employees, affiliates, representatives or agents furnish,\nwhether directly or indirectly, whether before or after the date hereof, to you or to which you are otherwise afforded access (collectively, the\n“Evaluation Material”). The term “Evaluation Material” shall also include any and all information which contains or otherwise reflects or is derived,\ndirectly or indirectly, therefrom, as well as any and all notes, analyses, compilations, studies or other documents prepared by any of (i) you, (ii) your\ndirectors, agents, representatives and employees and advisors retained and engaged by you in connection with the Transaction (collectively, your\n“Agents™), or (iii) your prospective debt financing sources who have been identified in writing to Piper Jaffray (collectively, your “Lenders”) which\ncontain or otherwise reflect or are derived, directly or indirectly, from such information. Notwithstanding the foregoing, the term Evaluation Material\ndoes not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by you or your Agents or\nLenders or (ii) becomes available to you on a non-confidential basis from a source other than the Company or any of its Agents, provided that such\nsource is not known by you to be bound by any contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with\nrespect to such information and you and your Representatives have no reasonable basis for concluding that such source may be so bound.\n(b) You agree that the Evaluation Material shall be held and treated by you and your Agents and Lenders with the utmost and strictest\nconfidence, and shall not, without the prior written consent of the Company, be disclosed by you or your Agents or Lenders in any manner\nwhatsoever, in whole or in part, or used by you or your Agents or Lenders other than for the purpose of evaluating a Transaction. The Evaluation\nMaterial shall not, without the prior written consent of the Company, be disclosed to any person or entity other than your Agents or Lenders who\nneed to know such information for the purpose of evaluating a Transaction (and in those instances only to the extent justifiable by that need);\nprovided, however, that such Agents or Lenders must be informed by you of the confidential nature of the Evaluation Material and must agree to be\nbound by this letter agreement prior to any such disclosure. You agree to be responsible for any disclosure of Evaluation Material or any breach of\nthis letter agreement by your Agents or Lenders as if they were a party hereto. In addition, you will not, and you will direct your Agents and Lenders\nnot to, disclose that discussions or negotiations are taking place concerning a possible Transaction between you and the Company, or any of the\nterms, conditions or other information with respect to any such possible Transaction including the status thereof. With respect to any Evaluation\nMaterial disclosed to you that is the subject of a confidentiality agreement between the Company or Piper Jaffray and any third party, you agree to\ncomply with the terms of such confidentiality agreements, for the benefit of each of the Company and Piper Jaffray, as if you were a recipient of\nconfidential information thereunder and a signatory thereto, but only to the extent that such confidentiality agreements are more restrictive than the\nterms hereof.\n(c) Until the earliest of the execution of a definitive agreement, an acquisition of the Company by you or a third party, or eighteen months (18) from\nthe date of this agreement, you will not initiate or maintain contact with any officer, director, employee, agent, member, creditor, supplier, or of the\nCompany regarding the Evaluation Material or the business, operations, prospects, or finances of the Company except Piper Jaffray.\n2. Disclosure Required by Law. If you or your Agents or Lenders are required by law or requested or required by regulatory agencies to\ndisclose Evaluation Material, you shall provide the Company with prompt written notice thereof, so that the Company may seek a protective order or\nother appropriate remedy, as well as notice of the terms and circumstances surrounding such request or requirement. You and your Agents and\nLenders will use reasonable efforts to obtain and will not oppose action by the Company to obtain such protective order or other appropriate remedy.\nIf such protective order or other remedy is not obtained, then you will furnish only that portion of the Evaluation Material which you are advised by\nyour legal counsel is legally required and will exercise all reasonable efforts to obtain assurance that confidential treatment, if available, will be\naccorded such Evaluation Material. Without limiting the foregoing, you expressly confirm and agree that (i) no public disclosure with respect to any\ndiscussions or negotiations concerning a possible Transaction is now required by you by reason of securities laws or similar requirements related to\ngeneral disclosure and in the event you determine that such disclosure is required in the future, no such disclosures shall be made unless and until\nyou consult with the Company regarding the necessity and form of any such disclosure and (ii) except as required by applicable law, no government\nor regulatory filings shall be made with respect to a possible Transaction except pursuant to mutual agreement of the parties with respect to the\nmaking and the form and content of any such filings.\n3. Securities Laws. You acknowledge that you are aware, and that you will advise your Agents and Lenders who receive the Evaluation\nMaterial, that the United States securities laws prohibit any person who has material, non-public information concerning the matters which are\nthe subject of this letter agreement from purchasing or selling securities of the Company or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such person including, without limitation, any of your Agents or Lenders, is\nlikely to purchase or sell such securities.\n4. Standstill Agreement. In consideration of the Company furnishing its Evaluation Material, you agree that, beginning on the date of this\nletter and ending on that date which is the earlier of (i) the eighteen month anniversary of the date hereof and (ii) the date on which the Company’s\nboard of directors publicly announces its approval of an acquisition, merger, asset sale or business combination between the Company and a third\nparty involving 50% or more of the Company’s voting securities or a material portion of the Company’s assets, you will not (and will not assist or\nencourage others to) in any manner, directly or indirectly, unless specifically requested in writing in advance by a majority of the Company’s board\nof directors, (i) acquire, or agree, offer or propose to acquire, directly or indirectly, from the Company or any other person, any material portion of\nthe Company’s business or assets (whether in a single transaction or in a series of related transactions), or any of Company’s voting securities or any\nright, warranty or option to acquire any of the foregoing, or propose to enter into, directly or indirectly, any merger or business combination\ninvolving the Company or any of the Company’s subsidiaries or to purchase, directly or indirectly, any material portion of the Company’s assets\n(whether in a single transaction or in a series of related transactions), except, in each event, pursuant to any proposal expressly solicited by the Chief\nExecutive Officer of the Company, and in such event such proposal will not be pursued, directly or indirectly, by you or any of your Affiliates (as\ndefined in Rule 12b-2 of the Exchange Act), if you are hereafter advised by the Company or Piper Jaffray that the Company is no longer interested in\npursuing such proposal; (ii) make any proposal or request to the Company or any of the Company’s officers or directors relating, directly or\nindirectly, to any modification or waiver of any provision of this paragraph; (iii) make or participate in, directly or indirectly, any “solicitation” of\n“proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) to vote or seek to advise or influence any person\nwith respect to the voting of any of the Company’s voting securities; (iv) form, join or in any way participate in a “group” (within the meaning of\nSection 13(d)(3) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any of the Company’s voting\nsecurities; (v) act alone or in concert with others to seek to control or influence the Company’s management or the Company’s board of directors;\n(vi) advise, assist or enter into any discussions, negotiations, arrangements or understandings with any other person with respect to any of the\nforegoing; or (vii) make any public statement or disclosure of any kind with respect to any matter addressed by this paragraph (unless required by\nlaw, and then only in accordance with Section 2 of this agreement) or take any other action which might reasonably be expected to result in any such\npublic disclosure.\n5. Termination of Discussions. You acknowledge and agree that the Company reserves the right, in its sole and absolute discretion, to reject\nany or all proposals and to terminate discussions and negotiations with you at any time and for any reason.\n6. Redelivery of Evaluation Material. If at any time the Company or you advise the other party that it does not wish to continue discussions\nwith respect to a proposed transaction between you and Company, or at any time upon the request of the Company or Piper Jaffray, you shall\npromptly redeliver to the Company all written material containing or reflecting any information contained in the Evaluation Material (including all\ncopies, extracts or other reproductions including those derived from electronic files and electronic correspondence) and agree to destroy all\ndocuments, memoranda, notes and other writings whatsoever (including all copies, extracts or other reproductions as well as all electronic files and\nelectronic correspondence), prepared by you or your Agents or Lenders based on the information contained in the Evaluation Material. Upon\nrequest, you agree to certify the same to the Company or Piper Jaffray in writing. Notwithstanding the return and/or destruction of the\nEvaluation Material, you and your Agents and Lenders will continue to be bound by the obligations of confidentiality and other obligations\nhereunder. However, notwithstanding this paragraph, you will be able to retain copies of the evaluation material for the purposes of satisfying\ninternal and regulatory compliance requirements.\n7. No Warranties of Accuracy or Completeness. You understand and acknowledge that none of the Company, Piper Jaffray nor any of their\naffiliates, agents or representatives makes any representation or warranty, either express or implied, as to the accuracy or completeness of the\nEvaluation Material or any other information provided by or on behalf of the Company. You agree that none of Piper Jaffray, the Company, nor any\nof their affiliates, agents or representatives shall have any liability to you or any of your Agents or Lenders resulting from the use of the Evaluation\nMaterial or such other information or any errors or omissions therefrom. Only those representations and warranties which are made in a final\ndefinitive agreement regarding a transaction, when, as and if executed and subject to such limitations and restrictions as may be specified therein,\nwill have any legal effect.\n8. Non-Exclusivity. You acknowledge and agree that until such time you and the Company have negotiated and executed a definitive\nagreement with respect to the Transaction, the Company is not under a legal obligation of any kind whatsoever with respect to a potential\nTransaction by virtue of this letter agreement or otherwise. Without limiting the foregoing, the Company may without prior notice or liability to you:\n(a) disclose Evaluation Material to and negotiate with any other prospective buyer and enter into a preliminary or definitive agreement with respect\nto the Transaction with any such buyer, (b) change the procedures relating to its consideration of the Transaction and (c) reject any proposals made\nby you or your Agents and Lenders with respect to the Transaction or terminate discussions and negotiations with respect to the Transaction with you\nor with any other person at any time and for any reason.\n9. No Solicitation of Employees. You agree that for a period of eighteen months (18) from the date hereof you will not directly or indirectly\nrecruit, solicit or hire any regional or district managers, corporate office employee, member of senior management of the Company (including store\nmanagers), or other employee of the Company identified to you or with whom you have had contact during your evaluation of the Transaction to\nbecome an employee of yours or any of your affiliates or otherwise interfere with any such employee’s employment relationship with the Company,\nunless the employee has been involuntarily terminated by the Company; provided however, that this prohibition shall not apply to any employee who\nfirst initiates contact with you related to employment in response to a general advertisement or solicitation program through communications made\navailable to the public generally.\n10. Equitable Remedies. It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter\nagreement and that the Company shall be entitled to equitable relief, including specific performance and injunction, as a remedy for any such breach\nwithout posting a bond or other security. Such remedies shall not be deemed to be the exclusive remedies for your breach of this letter agreement,\nbut shall be in addition to all other remedies available at law or equity to the Company.\n11. Governing Law; Jurisdiction; Miscellaneous. This letter agreement shall be governed by and construed in accordance with the internal\nlaws of the State of Minnesota, without giving effect to the principles of conflict of laws thereof. Your obligations of confidentiality contained in this\nletter agreement shall terminate on the second anniversary of the date of this agreement. This letter agreement may be amended, modified or waived\nonly in writing signed by the parties. No failure or delay in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor\nwill any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder. In case any provision of this letter agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the\nremaining provisions hereof shall not in any way be affected or impaired thereby. You agree that any dispute under this letter agreement shall be\ndetermined in the first instance by district courts (Federal or state) located within the State of Minnesota, and you hereby submit and consent to such\ncourts’ exercise of jurisdiction. The prevailing party in any suit to enforce this letter agreement shall be entitled to recover its reasonable costs and\nattorneys’ fees. A fax copy of this signed letter agreement shall be enforceable to the same extent as an original.\nUnder no circumstances should the Company or any of its officers, directors, employees, agents, shareholders, creditors or suppliers be\ncontacted directly. All contacts with the Company relating to the potential Transaction, the Evaluation Material or the business, operations,\nprospects, or finances of the Company shall be arranged through Piper Jaffray.\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this letter agreement, whereupon it will constitute\nour agreement with respect to the subject matter hereof.\nSincerely,\nPIPER JAFFRAY & CO.\nas Agent for and on behalf of the Company\nBy /s/ John T. Twichell\nMr. John T. Twichell\nManaging Director, Investment Banking\nBAY HARBOUR MANAGEMENT, L.C.\nBy /s/ Anthony C. Morrow\nIts VP and General Counsel	EX-99.E3 3 dex99e3.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(3)\nLOGO\n345 California Street, Suite 2400 San Francisco, CA 94104\nTel: (800) 981-1203\nFax: (415) 277-1552\nTel: (415) 277-1500\nPiper Jaffray & Co. Since 1895. Member SIPC and NYSE.\nCONFIDENTIAL\nFebruary 19, 2008\nMr. Anthony Morro\nBay Harbour Management, L.C.\n885 Third Avenue, 34th Floor\nNew York, NY 10022\nDear Mr. Morro:\nWe have advised you that Piper Jaffray & Co. ("Piper Jaffray") has been retained on behalf of BUCA, Inc. (the "Company") to explore a possible\nacquisition transaction ("Transaction") between the Company and Bay Harbour Management, L.C. ("you" or "your"). You have indicated an interest\nin a Transaction with the Company and agree to enter into this letter agreement to facilitate the delivery of certain information to you to assist you in\nthe evaluation of a Transaction.\n1. Evaluation Material\n(a) As a condition to furnishing you with such information you agree to treat confidentially such information and any other information, whether\nwritten or oral, relating to the Company that Piper Jaffray or any of the Company's officers, employees, affiliates, representatives or agents furnish,\nwhether directly or indirectly, whether before or after the date hereof, to you or to which you are otherwise afforded access (collectively, the\n"Evaluation Material"). The term "Evaluation Material" shall also include any and all information which contains or otherwise reflects or is derived,\ndirectly\nor\nindirectly, therefrom, as well as any and all notes, analyses, compilations, studies or other documents prepared by any of (i) you, (ii) your\ndirectors, agents, representatives and employees and advisors retained and engaged by you in connection with the Transaction (collectively, your\n"Agents"), or (iii) your prospective debt financing sources who have been identified in writing to Piper Jaffray (collectively, your "Lenders") which\ncontain or otherwise reflect or are derived, directly or indirectly, from such information. Notwithstanding the foregoing, the term Evaluation Material\ndoes not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by you or your Agents or\nLenders or (ii) becomes available to you on a non-confidential basis from a source other than the Company or any of its Agents, provided that such\nsource is not known by you to be bound by any contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with\nrespect to such information and you and your Representatives have no reasonable basis for concluding that such source may be so bound.\n(b) You agree that the Evaluation Material shall be held and treated by you and your Agents and Lenders with the utmost and strictest\nconfidence, and shall not, without the prior written consent of the Company, be disclosed by you or your Agents or Lenders in any manner\nwhatsoever, in whole or in part, or used by you or your Agents or Lenders other than for the purpose of evaluating a Transaction. The Evaluation\nMaterial shall not, without the prior written consent of the Company, be disclosed to any person or entity other than your Agents or Lenders\nwho\nneed to know such information for the purpose of evaluating a Transaction (and in those instances only to the extent justifiable by that need);\nprovided, however, that such Agents or Lenders must be informed by you of the confidential nature of the Evaluation Material and must agree to\nbe\nbound by this letter agreement prior to any such disclosure. You agree to be responsible for any disclosure of Evaluation Material or any breach of\nthis letter agreement by your Agents or Lenders as if they were a party hereto. In addition, you will not, and you will direct your Agents and Lenders\nnot to, disclose that discussions or negotiations are taking place concerning a possible Transaction between you and the Company, or any of the\nterms, conditions or other information with respect to any such possible Transaction including the status thereof. With respect to any Evaluation\nMaterial disclosed to you that is the subject of a confidentiality agreement between the Company or Piper Jaffray and any third party, you agree to\ncomply with the terms of such confidentiality agreements, for the benefit of each of the Company and Piper Jaffray, as if you were a recipient of\nconfidential information thereunder and a signatory thereto, but only to the extent that such confidentiality agreements are more restrictive than the\nterms hereof.\n(c) Until the earliest of the execution of a definitive agreement, an acquisition of the Company by you or a third party, or eighteen months (18) from\nthe date of this agreement, you will not initiate or maintain contact with any officer, director, employee, agent, member, creditor, supplier, or of\nthe\nCompany regarding the Evaluation Material or the business, operations, prospects, or finances of the Company except Piper Jaffray.\n2. Disclosure Required by Law. If you or your Agents or Lenders are required by law or requested or required by regulatory agencies to\ndisclose Evaluation Material, you shall provide the Company with prompt written notice thereof, so that the Company may seek a protective order or\nother appropriate remedy, as well as notice of the terms and circumstances surrounding such request or requirement. You and your Agents and\nLenders will use reasonable efforts to obtain and will not oppose action by the Company to obtain such protective order or other appropriate remedy.\nIf such protective order or other remedy is not obtained, then you will furnish only that portion of the Evaluation Material which you are advised\nby\nyour legal counsel is legally required and will exercise all reasonable efforts to obtain assurance that confidential treatment, if available, will be\naccorded such Evaluation Material. Without limiting the foregoing, you expressly confirm and agree that (i) no public disclosure with respect to any\ndiscussions or negotiations concerning a possible Transaction is now required by you by reason of securities laws or similar requirements related\nto\ngeneral disclosure and in the event you determine that such disclosure is required in the future, no such disclosures shall be made unless and until\nyou consult with the Company regarding the necessity and form of any such disclosure and (ii) except as required by applicable law, no government\nor regulatory filings shall be made with respect to a possible Transaction except pursuant to mutual agreement of the parties with respect to the\nmaking and the form and content of any such filings.\n3. Securities Laws. You acknowledge that you are aware, and that you will advise your Agents and Lenders who receive the Evaluation\nMaterial, that the United States securities laws prohibit any person who has material, non-public information concerning the matters which are\nthe subject of this letter agreement from purchasing or selling securities of the Company or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such person including, without limitation, any of your Agents or Lenders, is\nlikely to purchase or sell such securities.\n4. Standstill Agreement. In consideration of the Company furnishing its Evaluation Material, you agree that, beginning on the date of this\nletter and ending on that date which is the earlier of (i) the eighteen month anniversary of the date hereof and (ii) the date\non\nwhich\nthe\nCompany's\nboard of directors publicly announces its approval of an acquisition, merger, asset sale or business combination between the Company and a third\nparty involving 50% or more of the Company's voting securities or a material portion of the Company's assets, you will not (and will not assist\nor\nencourage others to) in any manner, directly or indirectly, unless specifically requested in writing in advance by a majority of the Company's board\nof directors, (i) acquire, or agree, offer or propose to acquire, directly or indirectly, from the Company or any other person, any material portion of\nthe Company's business or assets (whether in a single transaction or in a series of related transactions), or any of Company's voting securities or any\nright, warranty or option to acquire any of the foregoing, or propose to enter into, directly or indirectly, any merger or business combination\ninvolving the Company or any of the Company's subsidiaries or to purchase, directly or indirectly, any material portion of the Company's assets\n(whether in a single transaction or in a series of related transactions), except, in each event, pursuant to any proposal expressly solicited by the Chief\nExecutive Officer of the Company, and in such event such proposal will not be pursued, directly or indirectly, by you or any of your Affiliates\n(as\ndefined in Rule 12b-2 of the Exchange Act), if you are hereafter advised by the Company or Piper Jaffray that the Company is no longer interested in\npursuing such proposal; (ii) make any proposal or request to the Company or any of the Company's officers or directors relating, directly or\nindirectly, to any modification or waiver of any provision of this paragraph; (iii) make or participate in, directly or indirectly, any "solicitation"\nof\n"proxies" (as those terms are used in the proxy rules of the Securities and Exchange Commission) to vote or seek to advise or influence any person\nwith respect to the voting of any of the Company's voting securities; (iv) form, join or in any way participate in a "group" (within the meaning of\nSection 13(d)(3) under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) with respect to any of the Company's voting\nsecurities; (v) act alone or in concert with others to seek to control or influence the Company's management or the Company's board of directors;\n(vi) advise, assist or enter into any discussions, negotiations, arrangements or understandings with any other person with respect to any of the\nforegoing; or (vii) make any public statement or disclosure of any kind with respect to any matter addressed by this paragraph (unless required by\nlaw, and then only in accordance with Section 2 of this agreement) or take any other action which might reasonably be expected to result in any\nsuch\npublic disclosure.\n5. Termination of Discussions. You acknowledge and agree that the Company reserves the right, in its sole and absolute discretion, to reject\nany or all proposals and to terminate discussions and negotiations with you at any time and for any reason.\n6. Redelivery of Evaluation Material. If at any time the Company or you advise the other party that it does not wish to continue discussions\nwith respect to a proposed transaction between you and Company, or at any time upon the request of the Company or Piper Jaffray, you shall\npromptly redeliver to the Company all written material containing or reflecting any information contained in the Evaluation Material (including all\ncopies, extracts or other reproductions including those derived from electronic files and electronic correspondence) and agree to destroy all\ndocuments, memoranda, notes and other writings whatsoever (including all copies, extracts or other reproductions as well as all electronic files\nand\nelectronic correspondence), prepared by you or your Agents or Lenders based on the information contained in the Evaluation Material. Upon\nrequest, you agree to certify the same to the Company or Piper Jaffray in writing. Notwithstanding the return and/or destruction of the\nEvaluation Material, you and your Agents and Lenders will continue to be bound by the obligations of confidentiality and other obligations\nhereunder. However, notwithstanding this paragraph, you will be able to retain copies of the evaluation material for the purposes of satisfying\ninternal and regulatory compliance requirements.\n7. No Warranties of Accuracy or Completeness. You understand and acknowledge that none of the Company, Piper Jaffray nor any of their\naffiliates, agents or representatives makes any representation or warranty, either express or implied, as to the accuracy or completeness of the\nEvaluation Material or any other information provided by or on behalf of the Company. You agree that none of Piper Jaffray, the Company, nor any\nof their affiliates, agents or representatives shall have any liability to you or any of your Agents or Lenders resulting from the use of the Evaluation\nMaterial or such other information or any errors or omissions therefrom. Only those representations and warranties which are made in a final\ndefinitive agreement regarding a transaction, when, as and if executed and subject to such limitations and restrictions as may be specified therein,\nwill have any legal effect.\n8. Non-Exclusivity. You acknowledge and agree that until such time you and the Company have negotiated and executed a definitive\nagreement with respect to the Transaction, the Company is not under a legal obligation of any kind whatsoever with respect to a potential\nTransaction by virtue of this letter agreement or otherwise. Without limiting the foregoing, the Company may without prior notice or liability to you:\n(a) disclose Evaluation Material to and negotiate with any other prospective buyer and enter into a preliminary or definitive agreement with respect\nto the Transaction with any such buyer, (b) change the procedures relating to its consideration of the Transaction and (c) reject any proposals made\nby you or your Agents and Lenders with respect to the Transaction or terminate discussions and negotiations with respect to the Transaction with you\nor with any other person at any time and for any reason.\n9.\nNo Solicitation of Employees. You agree that for a period of eighteen months (18) from the date hereof you will not directly or indirectly\nrecruit, solicit or hire any regional or district managers, corporate office employee, member of senior management of the Company (including store\nmanagers), or other employee of the Company identified to you or with whom you have had contact during your evaluation of the Transaction to\nbecome an employee of yours or any of your affiliates or otherwise interfere with any such employee's employment relationship with the Company,\nunless the employee has been involuntarily terminated by the Company; provided however, that this prohibition shall not apply to any employee who\nfirst initiates contact with you related to employment in response to a general advertisement or solicitation program through communications made\navailable to the public generally.\n10. Equitable Remedies. It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter\nagreement and that the Company shall be entitled to equitable relief, including specific performance and injunction, as a remedy for any such breach\nwithout posting a bond or other security. Such remedies shall not be deemed to be the exclusive remedies for your breach of this letter agreement,\nbut shall be in addition to all other remedies available at law or equity to the Company.\n11. Governing Law; Jurisdiction; Miscellaneous. This letter agreement shall be governed by and construed in accordance with the internal\nlaws of the State of Minnesota, without giving effect to the principles of conflict of laws thereof. Your obligations of confidentiality contained in this\nletter agreement shall terminate on the second anniversary of the date of this agreement. This letter agreement may be amended, modified or waived\nonly in writing signed by the parties. No failure or delay in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor\nwill any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder. In case any provision of this letter agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the\nremaining provisions hereof shall not in any way be affected or impaired thereby. You agree that any dispute under this letter agreement shall be\ndetermined in the first instance by district courts (Federal or state) located within the State of Minnesota, and you hereby submit and consent to such\ncourts' exercise of jurisdiction The prevailing party in any suit to enforce this letter agreement shall be entitled to recover its reasonable costs and\nattorneys' fees. A fax copy of this signed letter agreement shall be enforceable to the same extent as an original.\nUnder no circumstances should the Company or any of its officers, directors, employees, agents, shareholders, creditors or suppliers be\ncontacted directly. All contacts with the Company relating to the potential Transaction, the Evaluation Material or the business, operations,\nprospects, or finances of the Company shall be arranged through Piper Jaffray.\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this letter agreement, whereupon it will constitute\nour agreement with respect to the subject matter hereof.\nSincerely,\nPIPER JAFFRAY & CO.\nas Agent for and on behalf of the Company\nBy /s/ John T. Twichell\nMr. John T. Twichell\nManaging Director, Investment Banking\nBAY HARBOUR MANAGEMENT, L.C.\nBy /s/ Anthony C. Morrow\nIts\nVP and General Counsel	EX-99.E3 3 dex99e3.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(3)\nLOGO\n345 California Street, Suite 2400 San Francisco, CA 94104\nTel: (800) 981-1203\nFax: (415) 277-1552\nTel: (415) 277-1500\nPiper Jaffray & Co. Since 1895. Member SIPC and NYSE.\nCONFIDENTIAL\nFebruary 19, 2008\nMr. Anthony Morro\nBay Harbour Management, L.C.\n885 Third Avenue, 34th Floor\nNew York, NY 10022\nDear Mr. Morro:\nWe have advised you that Piper Jaffray & Co. (“Piper Jaffray”) has been retained on behalf of BUCA, Inc. (the “Company”) to explore a possible\nacquisition transaction (“Transaction”) between the Company and Bay Harbour Management, L.C. (“you” or “your”). You have indicated an interest\nin a Transaction with the Company and agree to enter into this letter agreement to facilitate the delivery of certain information to you to assist you in\nthe evaluation of a Transaction.\n1. Evaluation Material\n(a) As a condition to furnishing you with such information you agree to treat confidentially such information and any other information, whether\nwritten or oral, relating to the Company that Piper Jaffray or any of the Company’s officers, employees, affiliates, representatives or agents furnish,\nwhether directly or indirectly, whether before or after the date hereof, to you or to which you are otherwise afforded access (collectively, the\n“Evaluation Material”). The term “Evaluation Material” shall also include any and all information which contains or otherwise reflects or is derived,\ndirectly or indirectly, therefrom, as well as any and all notes, analyses, compilations, studies or other documents prepared by any of (i) you, (ii) your\ndirectors, agents, representatives and employees and advisors retained and engaged by you in connection with the Transaction (collectively, your\n“Agents”), or (iii) your prospective debt financing sources who have been identified in writing to Piper Jaffray (collectively, your “Lenders”) which\ncontain or otherwise reflect or are derived, directly or indirectly, from such information. Notwithstanding the foregoing, the term Evaluation Material\ndoes not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by you or your Agents or\nLenders or (ii) becomes available to you on a non-confidential basis from a source other than the Company or any of its Agents, provided that such\nsource is not known by you to be bound by any contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with\nrespect to such information and you and your Representatives have no reasonable basis for concluding that such source may be so bound.\n(b) You agree that the Evaluation Material shall be held and treated by you and your Agents and Lenders with the utmost and strictest\nconfidence, and shall not, without the prior written consent of the Company, be disclosed by you or your Agents or Lenders in any manner\nwhatsoever, in whole or in part, or used by you or your Agents or Lenders other than for the purpose of evaluating a Transaction. The Evaluation\nMaterial shall not, without the prior written consent of the Company, be disclosed to any person or entity other than your Agents or Lenders who\nneed to know such information for the purpose of evaluating a Transaction (and in those instances only to the extent justifiable by that need);\nprovided, however, that such Agents or Lenders must be informed by you of the confidential nature of the Evaluation Material and must agree to be\nbound by this letter agreement prior to any such disclosure. You agree to be responsible for any disclosure of Evaluation Material or any breach of\nthis letter agreement by your Agents or Lenders as if they were a party hereto. In addition, you will not, and you will direct your Agents and Lenders\nnot to, disclose that discussions or negotiations are taking place concerning a possible Transaction between you and the Company, or any of the\nterms, conditions or other information with respect to any such possible Transaction including the status thereof. With respect to any Evaluation\nMaterial disclosed to you that is the subject of a confidentiality agreement between the Company or Piper Jaffray and any third party, you agree to\ncomply with the terms of such confidentiality agreements, for the benefit of each of the Company and Piper Jaffray, as if you were a recipient of\nconfidential information thereunder and a signatory thereto, but only to the extent that such confidentiality agreements are more restrictive than the\nterms hereof.\n(c) Until the earliest of the execution of a definitive agreement, an acquisition of the Company by you or a third party, or eighteen months (18) from\nthe date of this agreement, you will not initiate or maintain contact with any officer, director, employee, agent, member, creditor, supplier, or of the\nCompany regarding the Evaluation Material or the business, operations, prospects, or finances of the Company except Piper Jaffray.\n2. Disclosure Required by Law. If you or your Agents or Lenders are required by law or requested or required by regulatory agencies to\ndisclose Evaluation Material, you shall provide the Company with prompt written notice thereof, so that the Company may seek a protective order or\nother appropriate remedy, as well as notice of the terms and circumstances surrounding such request or requirement. You and your Agents and\nLenders will use reasonable efforts to obtain and will not oppose action by the Company to obtain such protective order or other appropriate remedy.\nIf such protective order or other remedy is not obtained, then you will furnish only that portion of the Evaluation Material which you are advised by\nyour legal counsel is legally required and will exercise all reasonable efforts to obtain assurance that confidential treatment, if available, will be\naccorded such Evaluation Material. Without limiting the foregoing, you expressly confirm and agree that (i) no public disclosure with respect to any\ndiscussions or negotiations concerning a possible Transaction is now required by you by reason of securities laws or similar requirements related to\ngeneral disclosure and in the event you determine that such disclosure is required in the future, no such disclosures shall be made unless and until\nyou consult with the Company regarding the necessity and form of any such disclosure and (ii) except as required by applicable law, no government\nor regulatory filings shall be made with respect to a possible Transaction except pursuant to mutual agreement of the parties with respect to the\nmaking and the form and content of any such filings.\n3. Securities Laws. You acknowledge that you are aware, and that you will advise your Agents and Lenders who receive the Evaluation\nMaterial, that the United States securities laws prohibit any person who has material, non-public information concerning the matters which are\nthe subject of this letter agreement from purchasing or selling securities of the Company or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such person including, without limitation, any of your Agents or Lenders, is\nlikely to purchase or sell such securities.\n4. Standstill Agreement. In consideration of the Company furnishing its Evaluation Material, you agree that, beginning on the date of this\nletter and ending on that date which is the earlier of (i) the eighteen month anniversary of the date hereof and (ii) the date on which the Company’s\nboard of directors publicly announces its approval of an acquisition, merger, asset sale or business combination between the Company and a third\nparty involving 50% or more of the Company’s voting securities or a material portion of the Company’s assets, you will not (and will not assist or\nencourage others to) in any manner, directly or indirectly, unless specifically requested in writing in advance by a majority of the Company’s board\nof directors, (i) acquire, or agree, offer or propose to acquire, directly or indirectly, from the Company or any other person, any material portion of\nthe Company’s business or assets (whether in a single transaction or in a series of related transactions), or any of Company’s voting securities or any\nright, warranty or option to acquire any of the foregoing, or propose to enter into, directly or indirectly, any merger or business combination\ninvolving the Company or any of the Company’s subsidiaries or to purchase, directly or indirectly, any material portion of the Company’s assets\n(whether in a single transaction or in a series of related transactions), except, in each event, pursuant to any proposal expressly solicited by the Chief\nExecutive Officer of the Company, and in such event such proposal will not be pursued, directly or indirectly, by you or any of your Affiliates (as\ndefined in Rule 12b-2 of the Exchange Act), if you are hereafter advised by the Company or Piper Jaffray that the Company is no longer interested in\npursuing such proposal; (ii) make any proposal or request to the Company or any of the Company’s officers or directors relating, directly or\nindirectly, to any modification or waiver of any provision of this paragraph; (iii) make or participate in, directly or indirectly, any “solicitation” of\n“proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) to vote or seek to advise or influence any person\nwith respect to the voting of any of the Company’s voting securities; (iv) form, join or in any way participate in a “group” (within the meaning of\nSection 13(d)(3) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any of the Company’s voting\nsecurities; (v) act alone or in concert with others to seek to control or influence the Company’s management or the Company’s board of directors;\n(vi) advise, assist or enter into any discussions, negotiations, arrangements or understandings with any other person with respect to any of the\nforegoing; or (vii) make any public statement or disclosure of any kind with respect to any matter addressed by this paragraph (unless required by\nlaw, and then only in accordance with Section 2 of this agreement) or take any other action which might reasonably be expected to result in any such\npublic disclosure.\n5. Termination of Discussions. You acknowledge and agree that the Company reserves the right, in its sole and absolute discretion, to reject\nany or all proposals and to terminate discussions and negotiations with you at any time and for any reason.\n6. Redelivery of Evaluation Material. If at any time the Company or you advise the other party that it does not wish to continue discussions\nwith respect to a proposed transaction between you and Company, or at any time upon the request of the Company or Piper Jaffray, you shall\npromptly redeliver to the Company all written material containing or reflecting any information contained in the Evaluation Material (including all\ncopies, extracts or other reproductions including those derived from electronic files and electronic correspondence) and agree to destroy all\ndocuments, memoranda, notes and other writings whatsoever (including all copies, extracts or other reproductions as well as all electronic files and\nelectronic correspondence), prepared by you or your Agents or Lenders based on the information contained in the Evaluation Material. Upon\nrequest, you agree to certify the same to the Company or Piper Jaffray in writing. Notwithstanding the return and/or destruction of the\nEvaluation Material, you and your Agents and Lenders will continue to be bound by the obligations of confidentiality and other obligations\nhereunder. However, notwithstanding this paragraph, you will be able to retain copies of the evaluation material for the purposes of satisfying\ninternal and regulatory compliance requirements.\n7. No Warranties of Accuracy or Completeness. You understand and acknowledge that none of the Company, Piper Jaffray nor any of their\naffiliates, agents or representatives makes any representation or warranty, either express or implied, as to the accuracy or completeness of the\nEvaluation Material or any other information provided by or on behalf of the Company. You agree that none of Piper Jaffray, the Company, nor any\nof their affiliates, agents or representatives shall have any liability to you or any of your Agents or Lenders resulting from the use of the Evaluation\nMaterial or such other information or any errors or omissions therefrom. Only those representations and warranties which are made in a final\ndefinitive agreement regarding a transaction, when, as and if executed and subject to such limitations and restrictions as may be specified therein,\nwill have any legal effect.\n8. Non-Exclusivity. You acknowledge and agree that until such time you and the Company have negotiated and executed a definitive\nagreement with respect to the Transaction, the Company is not under a legal obligation of any kind whatsoever with respect to a potential\nTransaction by virtue of this letter agreement or otherwise. Without limiting the foregoing, the Company may without prior notice or liability to you:\n(a) disclose Evaluation Material to and negotiate with any other prospective buyer and enter into a preliminary or definitive agreement with respect\nto the Transaction with any such buyer, (b) change the procedures relating to its consideration of the Transaction and (c) reject any proposals made\nby you or your Agents and Lenders with respect to the Transaction or terminate discussions and negotiations with respect to the Transaction with you\nor with any other person at any time and for any reason.\n9. No Solicitation of Employees. You agree that for a period of eighteen months (18) from the date hereof you will not directly or indirectly\nrecruit, solicit or hire any regional or district managers, corporate office employee, member of senior management of the Company (including store\nmanagers), or other employee of the Company identified to you or with whom you have had contact during your evaluation of the Transaction to\nbecome an employee of yours or any of your affiliates or otherwise interfere with any such employee’s employment relationship with the Company,\nunless the employee has been involuntarily terminated by the Company; provided however, that this prohibition shall not apply to any employee who\nfirst initiates contact with you related to employment in response to a general advertisement or solicitation program through communications made\navailable to the public generally.\n10. Equitable Remedies. It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter\nagreement and that the Company shall be entitled to equitable relief, including specific performance and injunction, as a remedy for any such breach\nwithout posting a bond or other security. Such remedies shall not be deemed to be the exclusive remedies for your breach of this letter agreement,\nbut shall be in addition to all other remedies available at law or equity to the Company.\n11. Governing Law; Jurisdiction; Miscellaneous. This letter agreement shall be governed by and construed in accordance with the internal\nlaws of the State of Minnesota, without giving effect to the principles of conflict of laws thereof. Your obligations of confidentiality contained in this\nletter agreement shall terminate on the second anniversary of the date of this agreement. This letter agreement may be amended, modified or waived\nonly in writing signed by the parties. No failure or delay in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor\nwill any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder. In case any provision of this letter agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the\nremaining provisions hereof shall not in any way be affected or impaired thereby. You agree that any dispute under this letter agreement shall be\ndetermined in the first instance by district courts (Federal or state) located within the State of Minnesota, and you hereby submit and consent to such\ncourts’ exercise of jurisdiction. The prevailing party in any suit to enforce this letter agreement shall be entitled to recover its reasonable costs and\nattorneys’ fees. A fax copy of this signed letter agreement shall be enforceable to the same extent as an original.\nUnder no circumstances should the Company or any of its officers, directors, employees, agents, shareholders, creditors or suppliers be\ncontacted directly. All contacts with the Company relating to the potential Transaction, the Evaluation Material or the business, operations,\nprospects, or finances of the Company shall be arranged through Piper Jaffray.\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this letter agreement, whereupon it will constitute\nour agreement with respect to the subject matter hereof.\nSincerely,\nPIPER JAFFRAY & CO.\nas Agent for and on behalf of the Company\nBy /s/ John T. Twichell\nMr. John T. Twichell\nManaging Director, Investment Banking\nBAY HARBOUR MANAGEMENT, L.C .\nBy /s/ Anthony C. Morrow\nIts VP and General Counsel
b4e221e3ca291a3c049038a4ae36eaaa.pdf	effective_date jurisdiction party term	EXHIBIT B\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this "Agreement"), is made and entered into as of the date on which it is fully executed,\nas indicated by signatures below, by and among Sunshine Financial, Inc. (the "Company"), The Stilwell Group (composed of Stilwell Value\nPartners VII, L.P., Stilwell Activist Fund, L.P., Stilwell Activist Investments, L.P., Stilwell Partners, L.P., and Stilwell Value LLC, and their\nemployees and representatives), and Corissa J. Briglia (the "Director").\nWHEREAS, the Director is a member of the Board of Directors of the Company and its wholly owned subsidiary, Sunshine Savings\nBank (the "Bank");\nWHEREAS, the Company, The Stilwell Group and the Director have agreed that it is in their mutual interests to enter into this\nAgreement as hereinafter described.\nNOW THEREFORE, for good and valuable consideration, and intending to be legally bound hereby, the parties hereto mutually agree\nas follows:\n1. In connection with the Director serving on the Boards of Directors of the Company and the Bank, the Director and other\nCompany employees, directors, and agents may divulge nonpublic information concerning the Company and its subsidiaries to The Stilwell\nGroup and such information may be shared among The Stilwell Group's employees, representatives, and agents who have a need to know such\ninformation. The Stilwell Group expressly agrees to maintain all nonpublic information concerning the Company and its subsidiaries in\nconfidence. The Stilwell Group expressly acknowledges that federal and state securities laws may prohibit a person from purchasing or selling\nsecurities of a company, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable\nthat such other person is likely to purchase or sell such securities, while the first-mentioned person is in possession of material nonpublic\ninformation about such company. The Stilwell Group agrees to comply with the Company's insider trading policies and procedures, as in effect\nfrom time to time, to the same extent as if it were a director of the Company. To the extent any nonpublic information concerning the Company\nand its subsidiaries received by The Stilwell Group is material, this Agreement is intended to satisfy the confidentiality agreement exclusion of\nRegulation FD of the U.S . Securities and Exchange Commission (the "SEC") set forth in Rule 100(b)(2)(ii) of Regulation FD of the SEC.\n2. Each of The Stilwell Group and the Director represents and warrants to the Company that this Agreement has been duly and\nvalidly authorized (in the case of the entity members of The Stilwell Group), executed and delivered by them, and is a valid and binding\nagreement enforceable against them in accordance with its terms.\n3. The Director hereby further confirms to the Company that no event has occurred with respect to the Director that would require\ndisclosure in a document filed by the Company with the SEC pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act\nof 1934, as amended, under Item 401(f) or Item 404(a) of SEC Regulation S-K.\n4. The Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic information of\nthe Company and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this Agreement and\nthat, in addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable relief as a\nremedy for such breach, and agrees that in conjunction therewith the Company shall not be required to post any bond.\n5. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and\nsupersedes all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not\nreferred to herein.\n6. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Maryland, without regard to\nchoice of law principles that may otherwise compel the application of the laws of any\nother jurisdiction. Each of the parties hereby irrevocably consents to the exclusive jurisdiction of the state and federal courts sitting in the State of\nMaryland to resolve any dispute arising from this Agreement and waives any defense of inconvenient or improper forum.\n7. The terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or portion\nthereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties.\n8. All representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this Agreement.\n9. This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written\nagreement executed by all of the parties hereto.\n10. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one\nand the same agreement.\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned as of as of the\nday and year indicated below.\nTHE STILWELL GROUP\nBy:\n_______________________\nMegan Parisi\nCo-Managing Member, Stilwell Value LLC\nDated: February ___, 2016\nDIRECTOR\n_____________________\nCorissa J. Briglia\nDate: February ___, 2016\nSUNSHINE FINANCIAL, INC.\nBy:\n________________________________\nLouis O. Davis\nPresident & CEO\nDate: February ____, 2016	EXHIBIT B\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this "Agreement"), is made and entered into as of the date on which it is fully executed,\nas indicated by signatures below, by and among Sunshine Financial, Inc. (the "Company"), The Stilwell Group (composed of Stilwell Value\nPartners VII, L.P., Stilwell Activist Fund, L.P., Stilwell Activist Investments, L.P., Stilwell Partners, L.P., and Stilwell Value LLC, and their\nemployees and representatives), and Corissa J. Briglia (the "Director").\nWHEREAS, the Director is a member of the Board of Directors of the Company and its wholly owned subsidiary, Sunshine Savings\nBank (the "Bank");\nWHEREAS, the Company, The Stilwell Group and the Director have agreed that it is in their mutual interests to enter into this\nAgreement as hereinafter described.\nNOW THEREFORE, for good and valuable consideration, and intending to be legally bound hereby, the parties hereto mutually agree\nas follows:\n1. In connection with the Director serving on the Boards of Directors of the Company and the Bank, the Director and other\nCompany employees, directors, and agents may divulge nonpublic information concerning the Company and its subsidiaries to The Stilwell\nGroup and such information may be shared among The Stilwell Group's employees, representatives, and agents who have a need to know such\ninformation. The Stilwell Group expressly agrees to maintain all nonpublic information concerning the Company and its subsidiaries in\nconfidence. The Stilwell Group expressly acknowledges that federal and state securities laws may prohibit a person from purchasing or selling\nsecurities of a company, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable\nthat such other person is likely to purchase or sell such securities, while the first-mentioned person is in possession of material nonpublic\ninformation about such company. The Stilwell Group agrees to comply with the Company's insider trading policies and procedures, as in effect\nfrom time to time, to the same extent as if it were a director of the Company. To the extent any nonpublic information concerning the Company\nand its subsidiaries received by The Stilwell Group is material, this Agreement is intended to satisfy the confidentiality agreement exclusion of\nRegulation FD of the U.S. Securities and Exchange Commission (the "SEC") set forth in Rule 100(b)(2)(ii) of Regulation FD of the SEC.\n2. Each of The Stilwell Group and the Director represents and warrants to the Company that this Agreement has been duly and\nvalidly authorized (in the case of the entity members of The Stilwell Group), executed and delivered by them, and is a valid and binding\nagreement enforceable against them in accordance with its terms.\n3. The Director hereby further confirms to the Company that no event has occurred with respect to the Director that would require\ndisclosure in a document filed by the Company with the SEC pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act\nof 1934, as amended, under Item 401(f) or Item 404(a) of SEC Regulation S-K.\n4. The Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic information of\nthe Company and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this Agreement and\nthat, in addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable relief as a\nremedy for such breach, and agrees that in conjunction therewith the Company shall not be required to post any bond.\n5. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and\nsupersedes all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not\nreferred to herein.\n6. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Maryland, without regard to\nchoice of law principles that may otherwise compel the application of the laws of any\nother jurisdiction. Each of the parties hereby irrevocably consents to the exclusive jurisdiction of the state and federal courts sitting in the State of\nMaryland to resolve any dispute arising from this Agreement and waives any defense of inconvenient or improper forum.\n7. The terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or portion\nthereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties.\n8. All representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this Agreement.\n9. This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written\nagreement executed by all of the parties hereto.\n10. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one\nand the same agreement.\nIN WITNESS WHEREQOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned as of as of the\nday and year indicated below.\nTHE STILWELL GROUP\nBy:\nMegan Parisi\nCo-Managing Member, Stilwell Value LLC\nDated: February ___, 2016\nDIRECTOR\nCorissa J. Briglia\nDate: February ___, 2016\nSUNSHINE FINANCIAL, INC.\nBy:\n \nLouis O. Davis\nPresident & CEO\nDate: February , 2016	EXHIBIT B\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this "Agreement"), is made and entered into as of the date on which it is fully executed,\nas indicated by signatures below, by and among Sunshine Financial, Inc. (the "Company"), The Stilwell Group (composed of Stilwell Value\nPartners VII, L.P., Stilwell Activist Fund, L.P., Stilwell Activist Investments, L.P., Stilwell Partners, L.P., and Stilwell Value LLC, and their\nemployees and representatives), and Corissa J. Briglia (the "Director").\nWHEREAS, the Director is a member of the Board of Directors of the Company and its wholly owned subsidiary, Sunshine Savings\nBank (the "Bank");\nWHEREAS, the Company, The Stilwell Group and the Director have agreed that it is in their mutual interests to enter into this\nAgreement as hereinafter described.\nNOW THEREFORE, for good and valuable consideration, and intending to be legally bound hereby, the parties hereto mutually agree\nas follows:\n1. In connection with the Director serving on the Boards of Directors of the Company and the Bank, the Director and other\nCompany employees, directors, and agents may divulge nonpublic information concerning the Company and its subsidiaries to The Stilwell\nGroup and such information may be shared among The Stilwell Group's employees, representatives, and agents who have a need to know such\ninformation. The Stilwell Group expressly agrees to maintain all nonpublic information concerning the Company and its subsidiaries in\nconfidence. The Stilwell Group expressly acknowledges that federal and state securities laws may prohibit a person from purchasing or selling\nsecurities of a company, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable\nthat such other person is likely to purchase or sell such securities, while the first-mentioned person is in possession of material nonpublic\ninformation about such company. The Stilwell Group agrees to comply with the Company's insider trading policies and procedures, as in effect\nfrom time to time, to the same extent as if it were a director of the Company. To the extent any nonpublic information concerning the Company\nand its subsidiaries received by The Stilwell Group is material, this Agreement is intended to satisfy the confidentiality agreement exclusion of\nRegulation FD of the U.S. Securities and Exchange Commission (the "SEC") set forth in Rule 100(b)(2)(ii) of Regulation FD of the SEC.\n2. Each of The Stilwell Group and the Director represents and warrants to the Company that this Agreement has been duly and\nvalidly authorized (in the case of the entity members of The Stilwell Group), executed and delivered by them, and is a valid and binding\nagreement enforceable against them in accordance with its terms.\n3. The Director hereby further confirms to the Company that no event has occurred with respect to the Director that would require\ndisclosure in a document filed by the Company with the SEC pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act\nof 1934, as amended, under Item 401(f) or Item 404(a) of SEC Regulation S-K.\n4. The Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic information of\nthe Company and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this Agreement and\nthat, in addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable relief as a\nremedy for such breach, and agrees that in conjunction therewith the Company shall not be required to post any bond.\n5. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and\nsupersedes all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not\nreferred to herein.\n6. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Maryland, without regard to\nchoice of law principles that may otherwise compel the application of the laws of any\nother jurisdiction. Each of the parties hereby irrevocably consents to the exclusive jurisdiction of the state and federal courts sitting in the State of\nMaryland to resolve any dispute arising from this Agreement and waives any defense of inconvenient or improper forum.\n7.\nThe terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or portion\nthereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties.\n8. All representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this Agreement.\n9.\nThis Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written\nagreement executed by all of the parties hereto.\n10. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one\nand the same agreement.\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned as of as of the\nday and year indicated below.\nTHE STILWELL GROUP\nBy:\nMegan Parisi\nCo-Managing Member, Stilwell Value LLC\nDated: February 2016\nDIRECTOR\nCorissa J. Briglia\nDate: February > 2016\nSUNSHINE FINANCIAL, INC.\nBy:\nLouis O. Davis\nPresident & CEO\nDate: February\n> 2016	EXHIBIT B\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this "Agreement"), is made and entered into as of the date on which it is fully executed,\nas indicated by signatures below, by and among Sunshine Financial, Inc. (the "Company"), The Stilwell Group (composed of Stilwell Value\nPartners VII, L.P., Stilwell Activist Fund, L.P., Stilwell Activist Investments, L.P., Stilwell Partners, L.P., and Stilwell Value LLC, and their\nemployees and representatives), and Corissa J. Briglia (the "Director").\nWHEREAS, the Director is a member of the Board of Directors of the Company and its wholly owned subsidiary, Sunshine Savings\nBank (the "Bank");\nWHEREAS, the Company, The Stilwell Group and the Director have agreed that it is in their mutual interests to enter into this\nAgreement as hereinafter described.\nNOW THEREFORE, for good and valuable consideration, and intending to be legally bound hereby, the parties hereto mutually agree\nas follows:\n1. In connection with the Director serving on the Boards of Directors of the Company and the Bank, the Director and other\nCompany employees, directors, and agents may divulge nonpublic information concerning the Company and its subsidiaries to The Stilwell\nGroup and such information may be shared among The Stilwell Group's employees, representatives, and agents who have a need to know such\ninformation. The Stilwell Group expressly agrees to maintain all nonpublic information concerning the Company and its subsidiaries in\nconfidence. The Stilwell Group expressly acknowledges that federal and state securities laws may prohibit a person from purchasing or selling\nsecurities of a company, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable\nthat such other person is likely to purchase or sell such securities, while the first-mentioned person is in possession of material nonpublic\ninformation about such company. The Stilwell Group agrees to comply with the Company's insider trading policies and procedures, as in effect\nfrom time to time, to the same extent as if it were a director of the Company. To the extent any nonpublic information concerning the Company\nand its subsidiaries received by The Stilwell Group is material, this Agreement is intended to satisfy the confidentiality agreement exclusion of\nRegulation FD of the U.S . Securities and Exchange Commission (the "SEC") set forth in Rule 100(b)(2)(ii) of Regulation FD of the SEC.\n2. Each of The Stilwell Group and the Director represents and warrants to the Company that this Agreement has been duly and\nvalidly authorized (in the case of the entity members of The Stilwell Group), executed and delivered by them, and is a valid and binding\nagreement enforceable against them in accordance with its terms.\n3. The Director hereby further confirms to the Company that no event has occurred with respect to the Director that would require\ndisclosure in a document filed by the Company with the SEC pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act\nof 1934, as amended, under Item 401(f) or Item 404(a) of SEC Regulation S-K.\n4. The Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic information of\nthe Company and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this Agreement and\nthat, in addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable relief as a\nremedy for such breach, and agrees that in conjunction therewith the Company shall not be required to post any bond.\n5. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and\nsupersedes all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not\nreferred to herein.\n6. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Maryland, without regard to\nchoice of law principles that may otherwise compel the application of the laws of any\nother jurisdiction. Each of the parties hereby irrevocably consents to the exclusive jurisdiction of the state and federal courts sitting in the State of\nMaryland to resolve any dispute arising from this Agreement and waives any defense of inconvenient or improper forum.\n7. The terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or portion\nthereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties.\n8. All representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this Agreement.\n9. This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written\nagreement executed by all of the parties hereto.\n10. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one\nand the same agreement.\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned as of as of the\nday and year indicated below.\nTHE STILWELL GROUP\nBy:\n_______________________\nMegan Parisi\nCo-Managing Member, Stilwell Value LLC\nDated: February ___, 2016\nDIRECTOR\n_____________________\nCorissa J. Briglia\nDate: February ___, 2016\nSUNSHINE FINANCIAL, INC.\nBy:\n________________________________\nLouis O. Davis\nPresident & CEO\nDate: February ____, 2016
b5690711912ee1ff847cb4947c1aeb20.pdf	effective_date jurisdiction party	EXHIBIT 10.33\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\n(Gregory Ray)\nThis NON-COMPETITION AND NON-DISCLOSURE AGREEMENT is entered into this 15th day of November, 1999, by\nand between Gregory Ray, who resides at 39W750 Crosscreek Lane, St. Charles, Illinois 60175 (“Executive”) and Heritage-Crystal\nClean, LLC, an Indiana limited liability company (“Crystal Clean”);\nWITNESSETH:\nWHEREAS, Executive is a Unit holder and Member of Crystal Clean and serves as its Vice President of Business Management\nand as a result of his positions with Crystal Clean, Executive has access to and knowledge of all of Crystal Clean’s business\ninformation and confidential data; and\nWHEREAS, Executive’s right to subscribe for and receive ownership of Units in Crystal Clean is expressly conditioned upon\nExecutive’s entering into an Executive Employment Agreement (“Employment Agreement”) and this Non-Competition and\nNon-Disclosure Agreement;\nNOW THEREFORE, pursuant to the above and in consideration of the terms and conditions contained herein and for other good\nand valuable considerations, the receipt and legal sufficiency of which are hereby acknowledged, the parties agree as follows:\n(1) Consideration. Executive acknowledges that the consideration received by Executive under the Subscription Agreement and\nthe Employment Agreement and otherwise resulting from the agreement of The Heritage Group, an Indiana general partnership, and\ncertain of its affiliates, partners and their beneficiaries (collectively, “Heritage”) to organize Crystal Clean, is good and sufficient\nconsideration for Executive’s covenants, agreements and forebearances contained in this Agreement and that Executive would not\nhave been allowed to subscribe for Units but for Executive’s entering into this Agreement.\n(2) Non-Disclosure. Executive will not, at any time following this date except as required by the duties of his employment with\nCrystal Clean and/or its subsidiaries or affiliates, disclose to any person, firm or corporation, any confidential information concerning\nCrystal Clean or its assets or business, except as may be required by governmental law or regulation or in legal proceedings to which\nExecutive is subpoenaed to give testimony, in which event Executive shall notify Crystal Clean immediately upon learning that\nExecutive may be required or compelled to divulge any confidential information. For purposes of this Agreement, “confidential\ninformation” consists of that proprietary information subject to protection under the Uniform Trade Secrets Act and includes, without\nlimitation, Crystal Clean’s customer list and price information for all customers and other intangible property to be transferred to\nCrystal Clean by Heritage. “Confidential information” does not include information in the public domain through no fault of the\nExecutive or reasonably discoverable without access to internal documents or information.\n1\n(3) Non Competition. During the term of Executive’s employment with Crystal Clean, and for a period of two (2) years from the\ndate of Executive’s Termination of Employment under the Employment Agreement (“Restricted Period”), Executive will not, other\nthan for the exclusive benefit of Crystal Clean, engage in the Business (as defined below) in the geographical area in which Crystal\nClean conducts Business during the term of Executive’s employment with Crystal Clean (“Territory”),whether as an employee,\nowner, member, manager, consultant, agent, partner, service provider or in any other capacity. For purposes of this Agreement, the\nterm “Business” means the business of providing environmental and fluid management services to small and medium sized customers\nand providing parts washing and drum disposal services (“Business”). Notwithstanding the foregoing, the parties agree that Executive\nmay at any time engage in the following activities, except to the extent such activities conflict with or breach Executive’s duties and\ncovenants as otherwise described in this Agreement and in the Employment Agreement (such as including but not limited to the\nprovisions regarding confidential information, non-disclosure, non-solicitation and non-piracy and the provisions regarding regular\nand full-time employment with the Company): (a) owning, directly or indirectly, any of the equity or debt securities of Evergreen\nHoldings, Inc., a corporation which engages in a business similar to a portion of the Business conducted by the Company, or its\naffiliates (collectively, “Evergreen”); (b) only with respect to Evergreen’s used oil collection and re-refining business, acting as an\nadviser or member of the Board of Directors of Evergreen; and (c) assisting with the sale (including a public offering) or liquidation\nof Evergreen (all such activities collectively referred to as “Evergreen Activities”). The parties further acknowledge that Executive\nhas disclosed to the Company, as a potential conflict of interest, Executive’s interest as both the son-in-law of the owner of Evergreen\nand a claimant of Evergreen shares in an amount not exceeding .3%.\n(4) Non-Solicitation; Non-Piracy. During the Restricted Period, Executive will not personally call on any person or business\norganization which was a customer of Crystal Clean during the Executive’s term of employment for Business within the Territory.\nFurther, during the Restricted Period, Executive will not, without the consent of Crystal Clean, for the Executive’s own account or for\nany third party, solicit or endeavor to entice away, offer employment to or employ any person who was employed by Crystal Clean\nduring the twelve (12) month period immediately before the termination of Executive’s employment with Crystal Clean.\n(5) Other Services. Executive may, without causing Executive to be in breach of this Agreement, enter into other business\nendeavors during the Restricted Period or may engage in the Business outside of the Territory; provided that Executive’s other\npermitted services will not be deemed to allow Executive to use or disclose “Confidential Information” in contravention of this\nAgreement or other agreements between Executive and Crystal Clean. Executive also may, without causing Executive to be in breach\nof this Agreement, engage in the Evergreen Activities to the extent and on the terms provided in Section 3.\n(6) Default and Remedies. Executive acknowledges and agrees that, if Executive directly or indirectly breaches, violates, or fails\nto perform fully its obligations under this Agreement (“Default”), each Default shall cause immediate and irreparable harm to Crystal\nClean, in a manner which cannot be adequately compensated in damages. Crystal Clean and Executive agree that in the\n2\nevent of any such Default, Crystal Clean, in addition to all other available remedies at law or in equity, may, insofar as Executive\nmay be concerned, be entitled to temporary, preliminary and permanent injunctive relief to restrain such Default(s) by Executive or\nothers acting in concert with Executive, and to all of its costs, expenses, and reasonable attorneys’ .fees incurred in any enforcement\nproceedings in which Crystal Clean prevails in whole or in part. Nothing contained herein shall restrict or limit in any manner Crystal\nClean’s right to obtain any form of relief, legal or equitable, in an action brought to enforce Crystal Clean’s rights.\n(7) Severability. All provisions of this Agreement are intended to be severable. Each provision of this Agreement constitutes a\nseparate and distinct covenant. In the event any term, provision, or restriction in this Agreement is held to be illegal, invalid or\nunenforceable in any respect, such finding shall in no way affect the legality, validity, or enforceability of all other provisions of this\nAgreement. Crystal Clean and Executive agree that any such unenforceable term, provision or restriction shall be deemed modified to\nthe extent necessary to permit its enforcement to the maximum extent permitted by applicable law.\n(8) No Waiver of Rights. Neither any failure or any delay on the part of any party in exercising its rights shall operate as a\nwaiver, nor shall a single or partial exercise preclude any further exercise of any right, power, or privilege by any party.\n(9) Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws\nof the State of Indiana. The state and federal courts located in Marion County, Indiana, or Cook County, Illinois shall be the courts of\nexclusive jurisdiction and venue over any enforcement of this Agreement.\n(10) Benefit. This Agreement shall inure to the benefit of and be binding upon the heirs, executors, administrators, successors and\nassigns of the parties hereto. Executive hereby agrees that the provisions of this Agreement may be assigned in whole or in part by\nCrystal Clean, and Executive hereby consents to such assignment and agrees to be bound to the assignee under all of the terms and\nconditions of this Agreement.\n(11) Notices. All notices and communications hereunder shall be in writing and shall be deemed to be duly given if delivered in\naccordance with Section 17 of the Employment Agreement.\n(12) Modification. No waiver, alteration or modification of any provision of this Agreement will be valid unless made in writing\nand signed by all parties hereto. The waiver of any breach or default shall not be deemed to waive any subsequent breach or default.\n(13) Entire Agreement. This Agreement constitutes the entire agreement of the parties relative to the subject matter and\nsupersedes any prior understanding, agreements or representations by or among the parties, written or oral with regard to the subject\nmatter of this Agreement.\n3\nIN WITNESS WHEREOF, the parties have executed this Non-Competition and Non-Disclosure Agreement on the day and year\nfirst above written.\nEXECUTIVE\n/s/ Gregory Ray\nGregory Ray\nHERITAGE-CRYSTAL CLEAN, LLC\nBy: /s/ Fred M. Fehsenfeld, Jr.\nFred M. Fehsenfeld, Jr., Chairman\n4	EXHIBIT 10.33\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\n(Gregory Ray)\nThis N0 N-COMPETITION AND NON-DISCLOSURE AG REEMENT is entered into this 15th day of November, 1999, by\nand between G regory Ray, who resides at 39W 750 Crosscreek Lane, St. Charles, Illinois 60175 (”Executive”) and Heritage-C rystal\nClean, LLC, an Indiana limited liability company (”Crystal Clean”);\nWITNESSETH:\nWHE REA S, Executive is a Unit holder and Member of Crystal Clean and serves as its Vice President of Business Management\nand as a result of his positions with Crystal Clean, Executive has access to and knowledge of all of Crystal Clean’ s business\ninformation and confidential data; and\nWHE REA S, Executive’s right to subscribe for and receive ownership of Units in Crystal Clean is expressly conditioned upon\nExecutive’s entering into an Executive Employment Agreement (”Employment Agreement”) and this Non-Competition and\nNon-D isclosure A greement;\nNOW THEREFORE, pursuant to the above and in consideration of the terms and conditions contained herein and for other good\nand valuable considerations, the receipt and legal sufficiency of which are hereby acknowledged, the parties agree as follows:\n(1) Consideration. Executive acknowledges that the consideration received by Executive under the Subscription Agreement and\nthe Employment Agreement and otherwise resulting from the agreement of The Heritage Group, an Indiana general partnership, and\ncertain of its affiliates, partners and their beneficiaries (collectively, ”Heritage”) to organize Crystal Clean, is good and sufficient\nconsideration for Executive’s covenants, agreements and forebearances contained in this Agreement and that Executive would not\nhave been allowed to subscribe for Units but for Executive’s entering into this Agreement.\n(2) Non-Disclosure. Executive will not, at any time following this date except as required by the duties of his employment with\nCrystal Clean and/or its subsidiaries or affiliates, disclose to any person, firm or corporation, any confidential information concerning\nCrystal Clean or its assets or business, except as may be required by governmental law or regulation or in legal proceedings to which\nExecutive is subpoenaed to give testimony, in which event Executive shall notify Crystal Clean immediately upon learning that\nExecutive may be required or compelled to divulge any confidential information. For purposes of this Agreement, ”confidential\ninformation” consists of that proprietary information subject to protection under the Uniform Trade Secrets Act and includes, without\nlimitation, Crystal Clean’ s customer list and price information for all customers and other intangible property to be transferred to\nCrystal Clean by Heritage. ”Confidential information” does not include information in the public domain through no fault of the\nExecutive or reasonably discoverable without access to internal documents or information.\n1\n(3) Non Competition. During the term of Executive’s employment with Crystal Clean, and for a period of two (2) years from the\ndate of Executive’s Termination of Employment under the Employment A greement (”Restricted Period”), Executive will not, other\nthan for the exclusive benefit of Crystal Clean, engage in the Business (as defined below) in the geographical area in which Crystal\nClean conducts Business during the term of Executive’s employment with Crystal Clean (”Territory”),whether as an employee,\nowner, member, manager, consultant, agent, partner, service provider or in any other capacity. For purposes of this A greement, the\nterm ”Business” means the business of providing environmental and fluid management services to small and medium sized customers\nand providing parts washing and drum disposal services (”Business”). Notwithstanding the foregoing, the parties agree that Executive\nmay at any time engage in the following activities, except to the extent such activities conflict with or breach Executive’s duties and\ncovenants as otherwise described in this Agreement and in the Employment Agreement (such as including but not limited to the\nprovisions regarding confidential information, non- disclosure, non-solicitation and non-piracy and the provisions regarding regular\nand full-time employment with the Company): (a) owning, directly or indirectly, any of the equity or debt securities of Evergreen\nHoldings, Inc., a corporation which engages in a business similar to a portion of the Business conducted by the Company, or its\naffiliates (collectively, ”Evergreen”); (b) only with respect to Evergreen’ s used oil collection and rerefining business, acting as an\nadviser or member of the Board of Directors of Evergreen; and (c) assisting with the sale (including a public offering) or liquidation\nof Evergreen (all such activities collectively referred to as ”Evergreen Activities"). The parties further acknowledge that Executive\nhas disclosed to the Company, as a potential conflict of interest, Executive’s interest as both the son-in-law of the owner of Evergreen\nand a claimant of Evergreen shares in an amount not exceeding .3%.\n(4) Non-Solicitation; Non-Piragy. During the Restricted Period, Executive will not personally call on any person or business\norganization which was a customer of Crystal Clean during the Executive’s term of employment for Business within the Territory.\nFurther, during the Restricted Period, Executive will not, without the consent of Crystal Clean, for the Executive’s own account or for\nany third party, solicit or endeavor to entice away, offer employment to or employ any person who was employed by Crystal Clean\nduring the twelve (12) month period immediately before the termination of Executive’s employment with Crystal Clean.\n(5) Other Services. Executive may, without causing Executive to be in breach of this Agreement, enter into other business\nendeavors during the Restricted Period or may engage in the Business outside of the Territory; provided that Executive’s other\npermitted services will not be deemed to allow Executive to use or disclose ”Confidential lnforrnation” in contravention of this\nAgreement or other agreements between Executive and Crystal Clean. Executive also may, without causing Executive to be in breach\nof this Agreement, engage in the Evergreen Activities to the extent and on the terms provided in Section 3.\n(6) Default and Remedies. Executive acknowledges and agrees that, if Executive directly or indirectly breaches, violates, or fails\nto perform fully its obligations under this Agreement (”Default”), each Default shall cause immediate and irreparable harm to Crystal\nClean, in a manner which cannot be adequately compensated in damages. Crystal Clean and Executive agree that in the\n2\nevent of any such Default, Crystal Clean, in addition to all other available remedies at law or in equity, may, insofar as Executive\nmay be concerned, be entitled to temporary, preliminary and permanent injunctive relief to restrain such Default(s) by Executive or\nothers acting in concert with Executive, and to all of its costs, expenses, and reasonable attorneys’ .fees incurred in any enforcement\nproceedings in which Crystal Clean prevails in whole or in part. Nothing contained herein shall restrict or limit in any manner Crystal\nClean’s right to obtain any form of relief, legal or equitable, in an action brought to enforce Crystal Clean’s rights.\n(7) Severability. All provisions of this Agreement are intended to be severable. Each provision of this Agreement constitutes a\nseparate and distinct covenant. In the event any term, provision, or restriction in this Agreement is held to be illegal, invalid or\nunenforceable in any respect, such finding shall in no way affect the legality, validity, or enforceability of all other provisions of this\nAgreement. Crystal Clean and Executive agree that any such unenforceable term, provision or restriction shall be deemed modified to\nthe extent necessary to permit its enforcement to the maximum extent permitted by applicable law.\n(8) No Waiver of Rights. Neither any failure or any delay on the part of any party in exercising its rights shall operate as a\nwaiver, nor shall a single or partial exercise preclude any further exercise of any right, power, or privilege by any party.\n(9) G overning Law; | urisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws\nof the State of Indiana. The state and federal courts located in Marion County, Indiana, or Cook County, Illinois shall be the courts of\nexclusive jurisdiction and venue over any enforcement of this Agreement.\n(10) Benefit. This Agreement shall inure to the benefit of and be binding upon the heirs, executors, administrators, successors and\nassigns of the parties hereto. Executive hereby agrees that the provisions of this Agreement may be assigned in whole or in part by\nCrystal Clean, and Executive hereby consents to such assignment and agrees to be bound to the assignee under all of the terms and\nconditions of this Agreement.\n \n(11) Notices. All notices and communications hereunder shall be in writing and shall be deemed to be duly given if delivered in\naccordance with Section 17 of the Employment A greement.\n(12) Modification. No waiver, alteration or modification of any provision of this Agreement will be valid unless made in writing\nand signed by all parties hereto. The waiver of any breach or default shall not be deemed to waive any subsequent breach or default.\n(13) Entire Agreement. This Agreement constitutes the entire agreement of the parties relative to the subject matter and\nsupersedes any prior understanding, agreements or representations by or among the parties, written or oral with regard to the subject\nmatter of this A greement.\nIN WITNESS WHEREOF, the parties have executed this Non-Competition and Non-Disclosure Agreement on the day and year\nfirst above written.\nEXECUTIVE\n/s/ Gregory Ray\nGregory Ray\nHERITAGE-CRY STAL CLEAN, LLC\nBy: /s/ Fred M. Fehsenfeld, Jr.\nFred M. Fehsenfeld, Jr., Chairman\n4	EXHIBIT 10.33\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\n(Gregory Ray)\nThis NON-COMPETITION AND NON-DISCLOSURE AGREEMENT is entered into this 15th day of November, 1999, by\nand between Gregory Ray, who resides at 39W 750 Crosscreek Lane, St. Charles, Illinois 60175 ("Executive") and Heritage-Crys\nClean, LLC, an Indiana limited liability company ("Crystal Clean");\nWITNESSETH:\nWHEREAS, Executive is a Unit holder and Member of Crystal Clean and serves as its Vice President of Business Management\nand as a result of his positions with Crystal Clean, Executive has access to and knowledge of all of Crystal Clean's business\ninformation and confidential data; and\nWHEREAS, Executive's right to subscribe for and receive ownership of Units in Crystal Clean is expressly conditioned upon\nExecutive's entering into an Executive Employment A greement ("Employment A greement") and this Non-Competition and\nNon-Disclosure Agreement;\nNOW THEREFORE, pursuant to the above and in consideration of the terms and conditions contained herein and for other good\nand valuable considerations, the receipt and legal sufficiency of which are hereby acknowledged, the parties agree as follows:\n(1) Consideration. Executive acknowledges that the consideration received by Executive under the Subscription A greement and\nthe Employment A greement and otherwise resulting from the agreement of The Heritage Group, an Indiana general partnership, and\ncertain of its affiliates, partners and their beneficiaries (collectively, "Heritage") to organize Crystal Clean, is good and sufficient\nconsideration for Executive's covenants, agreements and forebearances contained in this Agreement and that Executive would not\nhave been allowed to subscribe for Units but for Executive's entering into this A greement.\n(2) Non-Disclosure. Executive will not, at any time following this date except as required by the duties of his employment with\nCrystal Clean and/or its subsidiaries or affiliates, disclose to any person, firm or corporation, any confidentia information concerning\nCrystal Clean or its assets or business, except as may be required by governmenta law or regulation or in legal proceedings to which\nExecutive is subpoenaed to give testimony, in which event Executive shall notify Crystal Clean immediately upon learning that\nExecutive may be required or compelled to divulge any confidential information For purposes of this Agreement, "confidential\ninformation" consists of that proprietary information subject to protection under the Uniform Trade Secrets Act and includes, without\nlimitation, Crystal Clean's customer list and price information for all customers and other intangible property to be transferred to\nCrystal Clean by Heritage. "Confidential information" does not include information in the public domain through no fault of the\nExecutive or reasonably discoverable without access to internal documents or information.\n1\n(3) Non Competition. During the term of Executive's employment with Crystal Clean, and for a period of two (2) years from the\ndate of Executive's Termination of Employment under the Employment A greement ("Restricted Period"), Executive will not, other\nthan for the exclusive benefit of Crystal Clean, engage in the Business (as defined below) in the geographical area in which Crystal\nClean conducts Business during the term of Executive's employment with Crystal Clean ("Territory"), whether as an employee,\nowner, member, manager, consultant, agent, partner, service provider or in any other capacity. For purposes of this greement, the\nterm "Business" means the business of providing environmental and fluid management services to small and medium sized customers\nand providing parts washing and drum disposal services ("Business"). Notwithstanding the foregoing, the parties agree that Executive\nmay at any time engage in the following activities, except to the extent such activities conflict with or breach Executive's duties and\ncovenants as otherwise described in this A greement and in the Employment A greement (such as including but not limited to the\nprovisions regarding confidentia information, non-disclosure, non-solicitation and non-piracy and the provisions regarding regular\nand full-time employment with the Company): (a) owning, directly or indirectly, any of the equity or debt securities of Evergreen\nHoldings, Inc., a corporation which engages in a business similar to a portion of the Business conducted by the Company, or its\naffiliates (collectively, "Evergreen"); (b) only with respect to Evergreen's used oil collection and re-refining business, acting as an\nadviser or member of the Board of Directors of Evergreen; and (c) assisting with the sale (including a public offering) or liquidation\nof Evergreen (all such activities collectively referred to as "Evergreen Activities"). The parties further acknowledge that Executive\nhas disclosed to the Company, as a potential conflict of interest, Executive's interest as both the son-in-law of the owner of Evergreen\nand a claimant of Evergreen shares in an amount not exceeding .3%.\n(4)\nNon-Solicitation; Non-Piracy. During the Restricted Period, Executive will not personally call on any person or business\norganization which was a customer of Crystal Clean during the Executive's term of employment for Business within the Territory.\nFurther, during the Restricted Period, Executive will not without the consent of Crystal Clean, for the Executive's own account or for\nany third party, solicit or endeavor to entice away, offer employment to or employ any person who was employed by Crystal Clean\nduring the twelve (12) month period immediately before the termination of Executive's employment with Crystal Clean.\n(5) Other Services. Executive may, without causing Executive to be in breach of this Agreement, enter into other business\nendeavors during the Restricted Period or may engage in the Business outside of the Territory; provided that Executive's other\npermitted services will not be deemed to allow Executive to use or disclose "Confidential Information" in contravention of this\nA greement or other agreements between Executive and Crystal Clean. Executive also may, without causing Executive to be in breach\nof this A greement, engage in the Evergreen A ctivities to the extent and on the terms provided in Section 3.\n(6) Default and Remedies. Executive acknowledges and agrees that, if Executive directly or indirectly breaches, violates, or fails\nto perform fully its obligations under this A greement ("Default"), each Default shall cause immediate and irreparable harm to Crystal\nClean, in a manner which cannot be adequately compensated in damages. Crysta Clean and Executive agree that in the\n2\nevent of any such Default, Crystal Clean in addition to all other available remedies at law or in equity, may, insofar as Executive\nmay be concerned, be entitled to temporary, preliminary and permanent injunctive relief to restrain such Default(s) by Executive or\nothers acting in concert with Executive, and to all of its costs, expenses, and reasonable attoreys' .fees incurred in any enforcement\nproceedings in which Crystal Clean prevails in whole or in part Nothing contained herein shall restrict or limit in any manner Crystal\nClean's right to obtain any form of relief, legal or equitable, in an action brought to enforce Crystal Clean's rights.\n(7) Severability. All provisions of this A greement are intended to be severable. Each provision of this A greement constitutes a\nseparate and distinct covenant. In the event any term, provision, or restriction in this A greement is held to be illegal, invalid or\nunenforceable in any respect, such finding shall in no way affect the legality, validity, or enforceability of all other provisions of this\nA greement. Crystal Clean and Executive agree that any such unenforceable term, provision or restriction shall be deemed modified to\nthe extent necessary to permit its enforcement to the maximum extent permitted by applicable law.\n(8) No Waiver of Rights. Neither any failure or any delay on the part of any party in exercising its rights shall operate as\na\nwaiver, nor shall a single or partial exercise preclude any further exercise of any right power, or privilege by any party.\n(9) Governing Law; urisdiction and Venue. This A greement shall be governed by and construed in accordance with the laws\nof the State of Indiana. The state and federal courts located in Marion County, Indiana, or Cook County, Illinois shall be the courts of\nexclusive jurisdiction and venue over any enforcement of this greement.\n(10) Benefit. This A greement shall inure to the benefit of and be binding upon the heirs, executors, administrators, successors and\nassigns of the parties hereto. Executive hereby agrees that the provisions of this greement may be assigned in whole or in part by\nCrystal Clean, and Executive hereby consents to such assignment and agrees to be bound to the assignee under all of the terms and\nconditions of this A greement.\n(11) Notices. All notices and communications hereunder shall be in writing and shall be deemed to be duly given if delivered in\naccordance with Section 17 of the Employment A greement\n(12) Modification. No waiver, alteration or modification of any provision of this A greement will be valid unless made in writing\nand signed by all parties hereto. The waiver of any breach or default shall not be deemed to waive any subsequent breach or default.\n(13) Entire Agreement. This greement constitutes the entire agreement of the parties relative to the subject matter and\nsupersedes any prior understanding, agreements or representations by or among the parties, written or oral with regard to the subject\nmatter of this A greement.\n3\nIN WITNESS WHEREOF, the parties have executed this Non-Competition and Non-Disclosure Agreement on the day and year\nfirst above written.\nEXECUTIVE\n/s/ Gregory Ray\nGregory Ray\nHERITAGE-CRYSTAL CLEAN, LLC\nBy:/s/ Fred M. Fehsenfeld, Jr.\nFred M. Fehsenfeld, Jr., Chairman\n4	EXHIBIT 10.33\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\n(Gregory Ray)\nThis NON-COMPETITION AND NON-DISCLOSURE AGREEMENT is entered into this 15th day of November, 1999, by\nand between Gregory Ray, who resides at 39W750 Crosscreek Lane, St. Charles, Illinois 60175 (“Executive”) and Heritage-Crystal\nClean, LLC, an Indiana limited liability company (“Crystal Clean”);\nWITNESSETH:\nWHEREAS, Executive is a Unit holder and Member of Crystal Clean and serves as its Vice President of Business Management\nand as a result of his positions with Crystal Clean, Executive has access to and knowledge of all of Crystal Clean’s business\ninformation and confidential data; and\nWHEREAS, Executive’s right to subscribe for and receive ownership of Units in Crystal Clean is expressly conditioned upon\nExecutive’s entering into an Executive Employment Agreement (“Employment Agreement”) and this Non-Competition and\nNon-Disclosure Agreement;\nNOW THEREFORE, pursuant to the above and in consideration of the terms and conditions contained herein and for other good\nand valuable considerations, the receipt and legal sufficiency of which are hereby acknowledged, the parties agree as follows:\n(1) Consideration. Executive acknowledges that the consideration received by Executive under the Subscription Agreement and\nthe Employment Agreement and otherwise resulting from the agreement of The Heritage Group, an Indiana general partnership, and\ncertain of its affiliates, partners and their beneficiaries (collectively, “Heritage”) to organize Crystal Clean, is good and sufficient\nconsideration for Executive’s covenants, agreements and forebearances contained in this Agreement and that Executive would not\nhave been allowed to subscribe for Units but for Executive’s entering into this Agreement.\n(2) Non-Disclosure. Executive will not, at any time following this date except as required by the duties of his employment with\nCrystal Clean and/or its subsidiaries or affiliates, disclose to any person, firm or corporation, any confidential information concerning\nCrystal Clean or its assets or business, except as may be required by governmental law or regulation or in legal proceedings to which\nExecutive is subpoenaed to give testimony, in which event Executive shall notify Crystal Clean immediately upon learning that\nExecutive may be required or compelled to divulge any confidential information. For purposes of this Agreement, “confidential\ninformation” consists of that proprietary information subject to protection under the Uniform Trade Secrets Act and includes, without\nlimitation, Crystal Clean’s customer list and price information for all customers and other intangible property to be transferred to\nCrystal Clean by Heritage. “Confidential information” does not include information in the public domain through no fault of the\nExecutive or reasonably discoverable without access to internal documents or information.\n1\n(3) Non Competition. During the term of Executive’s employment with Crystal Clean, and for a period of two (2) years from the\ndate of Executive’s Termination of Employment under the Employment Agreement (“Restricted Period”), Executive will not, other\nthan for the exclusive benefit of Crystal Clean, engage in the Business (as defined below) in the geographical area in which Crystal\nClean conducts Business during the term of Executive’s employment with Crystal Clean (“Territory”),whether as an employee,\nowner, member, manager, consultant, agent, partner, service provider or in any other capacity. For purposes of this Agreement, the\nterm “Business” means the business of providing environmental and fluid management services to small and medium sized customers\nand providing parts washing and drum disposal services (“Business”). Notwithstanding the foregoing, the parties agree that Executive\nmay at any time engage in the following activities, except to the extent such activities conflict with or breach Executive’s duties and\ncovenants as otherwise described in this Agreement and in the Employment Agreement (such as including but not limited to the\nprovisions regarding confidential information, non-disclosure, non-solicitation and non-piracy and the provisions regarding regular\nand full-time employment with the Company): (a) owning, directly or indirectly, any of the equity or debt securities of Evergreen\nHoldings, Inc., a corporation which engages in a business similar to a portion of the Business conducted by the Company, or its\naffiliates (collectively, “Evergreen”); (b) only with respect to Evergreen’s used oil collection and re-refining business, acting as an\nadviser or member of the Board of Directors of Evergreen; and (c) assisting with the sale (including a public offering) or liquidation\nof Evergreen (all such activities collectively referred to as “Evergreen Activities”). The parties further acknowledge that Executive\nhas disclosed to the Company, as a potential conflict of interest, Executive’s interest as both the son-in-law of the owner of Evergreen\nand a claimant of Evergreen shares in an amount not exceeding .3%.\n(4) Non-Solicitation; Non-Piracy. During the Restricted Period, Executive will not personally call on any person or business\norganization which was a customer of Crystal Clean during the Executive’s term of employment for Business within the Territory.\nFurther, during the Restricted Period, Executive will not, without the consent of Crystal Clean, for the Executive’s own account or for\nany third party, solicit or endeavor to entice away, offer employment to or employ any person who was employed by Crystal Clean\nduring the twelve (12) month period immediately before the termination of Executive’s employment with Crystal Clean.\n(5) Other Services. Executive may, without causing Executive to be in breach of this Agreement, enter into other business\nendeavors during the Restricted Period or may engage in the Business outside of the Territory; provided that Executive’s other\npermitted services will not be deemed to allow Executive to use or disclose “Confidential Information” in contravention of this\nAgreement or other agreements between Executive and Crystal Clean. Executive also may, without causing Executive to be in breach\nof this Agreement, engage in the Evergreen Activities to the extent and on the terms provided in Section 3.\n(6) Default and Remedies. Executive acknowledges and agrees that, if Executive directly or indirectly breaches, violates, or fails\nto perform fully its obligations under this Agreement (“Default”), each Default shall cause immediate and irreparable harm to Crystal\nClean, in a manner which cannot be adequately compensated in damages. Crystal Clean and Executive agree that in the\n2\nevent of any such Default, Crystal Clean, in addition to all other available remedies at law or in equity, may, insofar as Executive\nmay be concerned, be entitled to temporary, preliminary and permanent injunctive relief to restrain such Default(s) by Executive or\nothers acting in concert with Executive, and to all of its costs, expenses, and reasonable attorneys’ .fees incurred in any enforcement\nproceedings in which Crystal Clean prevails in whole or in part. Nothing contained herein shall restrict or limit in any manner Crystal\nClean’s right to obtain any form of relief, legal or equitable, in an action brought to enforce Crystal Clean’s rights.\n(7) Severability. All provisions of this Agreement are intended to be severable. Each provision of this Agreement constitutes a\nseparate and distinct covenant. In the event any term, provision, or restriction in this Agreement is held to be illegal, invalid or\nunenforceable in any respect, such finding shall in no way affect the legality, validity, or enforceability of all other provisions of this\nAgreement. Crystal Clean and Executive agree that any such unenforceable term, provision or restriction shall be deemed modified to\nthe extent necessary to permit its enforcement to the maximum extent permitted by applicable law.\n(8) No Waiver of Rights. Neither any failure or any delay on the part of any party in exercising its rights shall operate as a\nwaiver, nor shall a single or partial exercise preclude any further exercise of any right, power, or privilege by any party.\n(9) Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws\nof the State of Indiana. The state and federal courts located in Marion County, Indiana, or Cook County, Illinois shall be the courts of\nexclusive jurisdiction and venue over any enforcement of this Agreement.\n(10) Benefit. This Agreement shall inure to the benefit of and be binding upon the heirs, executors, administrators, successors and\nassigns of the parties hereto. Executive hereby agrees that the provisions of this Agreement may be assigned in whole or in part by\nCrystal Clean, and Executive hereby consents to such assignment and agrees to be bound to the assignee under all of the terms and\nconditions of this Agreement.\n(11) Notices. All notices and communications hereunder shall be in writing and shall be deemed to be duly given if delivered in\naccordance with Section 17 of the Employment Agreement.\n(12) Modification. No waiver, alteration or modification of any provision of this Agreement will be valid unless made in writing\nand signed by all parties hereto. The waiver of any breach or default shall not be deemed to waive any subsequent breach or default.\n(13) Entire Agreement. This Agreement constitutes the entire agreement of the parties relative to the subject matter and\nsupersedes any prior understanding, agreements or representations by or among the parties, written or oral with regard to the subject\nmatter of this Agreement.\n3\nIN WITNESS WHEREOF, the parties have executed this Non-Competition and Non-Disclosure Agreement on the day and year\nfirst above written.\nEXECUTIVE\n/s/ Gregory Ray\nGregory Ray\nHERITAGE-CRYSTAL CLEAN, LLC\nBy: /s/ Fred M. Fehsenfeld, Jr.\nFred M. Fehsenfeld, Jr., Chairman\n4
b6323928675ffdb3a92be0a3fc863f59.pdf	effective_date jurisdiction party term	1.\n2.\nExhibit A\nCONFIDENTIALITY/ NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”) is made and entered into as of the\ndate of the latter of the two signatures appearing below between Social Reality, Inc. (“Employer”) and Erin DeRuggiero\n(“Executive”).\nPurpose. Employer wishes to employ the Executive pursuant, during which employment the Employer\nmay disclose to Executive certain confidential technical, financial, and business information including, but not limited\nto, information relating to advertising techniques, historical prices, Internet-based advertising, marketing practices,\nclients, prospective clients, proprietary software, trade secrets, and other intellectual property which Employer desires\nExecutive to treat as confidential during and after the termination of Executive’s employment.\nDefinition.\n"Confidential Information" means any information, documents, and/or tangible things\ndisclosed to Executive by Employer, either directly or indirectly in writing, orally or by inspection of tangible objects,\nincluding without limitation the Employer's business and operating plans, software, and competitors. Without limiting\nthe generality of the foregoing, Confidential Information shall include trade secrets as “trade secrets” are defined under\nthe version of the Uniform Trade Secrets Act adopted and in effect in the State of California, as amended from time to\ntime during the term of this Agreement, the provisions of which defining “trade secrets” are incorporated herein by\nreference. Confidential Information shall also include but not be limited to all other discoveries, developments, designs,\nimprovements, inventions, formulas, software programs, business plans, processes, username and password information,\ntechniques, know-how, negative know-how, data, research, techniques, technical data, client and customer and supplier\nlists, financial projections, current and prospective financing arrangements, marketing methods, plans, and related data,\ncustomer lists, buying habits and practices, pricing structures, and payment and credit histories, costs of sales and terms\nof trade, the identity and business practices of vendors, suppliers, financiers, bankers, agents, or brokers, the identity,\nskill sets, and job duties of vendors, employees, independent contractors, or Executives, terms of employment for\nemployees, agents, and representatives, including employee stock option plans and participation, written records and\ndata used in developing and operating its business, other confidential information of, about, or concerning Employer ’s\nbusiness and affairs, the financing and operations of its business, and its relationships with its employees, agents,\ncustomers, vendors, or representatives, and any modifications or enhancements of any of the foregoing, and all Employer\nprogram, pricing, marketing, sales, business contract, or other financial or business information. Confidential\nInformation shall not, however, include any information which Executive can establish: (i) was publicly known and\nmade generally available in the public domain prior to the time of disclosure to Executive by Employer; (ii) becomes\npublicly known and made generally available after disclosure to Executive by Employer through no action or inaction of\nExecutive; or (iii) is in the possession of Executive, without confidentiality restrictions, at the time of disclosure by the\nEmployer as shown by Executive's files and records immediately prior to the time of disclosure. It shall be presumed that\nany information in the possession of Executive that has been disclosed\n3.\n4.\n5.\nOwnership.\n6.\n7.\nto Executive by Employer, or any agent or representative of Employer, is not within any of the exceptions to the\ndefinition of Confidential Information set forth in the previous sentence, and the burden is on Executive to prove\notherwise by written records and documentation.\nNon-use and Non-disclosure. Executive agrees not to use or disclose any Confidential Information for\nany purpose except as part of Executive’s performance of his job duties during his employment by the Employer.\nExecutive shall not reverse-engineer, disassemble or decompile any prototypes, software or other tangible objects,\nwhich embody Employer's Confidential Information and which are provided to Executive hereunder. The Executive\nagrees that all Confidential Information shall not be used by the Executive in any way adverse to the interests of the\nEmployer or any of its subsidiaries during the Term of this Agreement, and shall not be used by the Executive in any\nway whatsoever following the Term of this Agreement. The Executive will not, during the Term or thereafter, use,\nreference, paraphrase, deliver, reproduce, or in any way allow such information, documents, and/or things to be used,\ndelivered, reproduced, or referenced, by any third party without specific prior written request to and the written\nauthorization from a duly authorized representative of the Employer. During and after termination of the Executive’s\nemployment with the Employer, the Executive will not use, publish, release, reproduce, or otherwise make available to\nany third party any information, document, or thing containing or describing any trade secret or other Confidential\nInformation of the Employer without prior specific written authorization of the Employer.\nMaintenance of Confidentiality. Executive agrees that he shall take all reasonable measures to protect\nthe secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the\nforegoing, Executive shall take at least those measures that Executive takes to protect his own most highly confidential\ninformation. Executive shall not make any copies of Confidential Information, except as previously approved in writing\nby the Employer. Executive shall reproduce the Employer's proprietary rights and confidentiality notices on any such\napproved copies, in the same manner in which such notices were set forth in or on the original. Executive shall\nimmediately notify the Employer in the event of any unauthorized use or disclosure of the Confidential Information.\nAll documentary Confidential Information, and all copies and summaries or synopses\nthereof, however made or obtained, and whether in tangible or electronic medium, are and shall remain the exclusive\nproperty of the Employer.\nReturn of Materials. All documents and other tangible objects containing or representing Confidential\nInformation and all copies thereof which are in the possession of Executive shall be and remain the property of\nEmployer and shall be promptly returned to Employer upon Employer's request.\nNo License. Nothing in this Agreement is intended to grant any rights to Executive under any patent,\nmask work right, or copyright of Employer, nor shall this Agreement grant Executive any rights in or to Confidential\nInformation except as expressly set forth herein.\n12\n8.\n9.\nDate:\nBy:\nName:\nTitle:\nDate:\nTerm. This Agreement shall survive until such time as all Confidential Information disclosed hereunder\nbecomes publicly known and made generally available through no action or inaction of Executive.\nRemedies. Executive agrees that any violation or threatened violation of this Agreement will cause\nirreparable injury to the Employer, entitling Employer to seek injunctive relief in addition to all legal remedies.\nAGREED AND ACCEPTED:\nERIN DERUGGIERO (“Executive”):\n/s/ Erin DeRuggiero\nOctober 19, 2015\nSOCIAL REALITY, INC. (“Employer”):\n/s/ Chris Miglino\nChris Miglino\nChief Executive Officer\nOctober 19, 2015\n13	Exhibit A\nCONFIDENTIALITY/ NON-DISCIL.OSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”) is made and entered into as of the\ndate of the latter of the two signatures appearing below between Social Reality, Inc. (“Employer”) and Erin DeRuggiero\n(“Executive”).\n1. Purpose. Employer wishes to employ the Executive pursuant, during which employment the Employer\nmay disclose to Executive certain confidential technical, financial, and business information including, but not limited\nto, information relating to advertising techniques, historical prices, Internet-based advertising, marketing practices,\nclients, prospective clients, proprietary software, trade secrets, and other intellectual property which Employer desires\nExecutive to treat as confidential during and after the termination of Executive’s employment.\n2. Definition. "Confidential Information" means any information, documents, and/or tangible things\ndisclosed to Executive by Employer, either directly or indirectly in writing, orally or by inspection of tangible objects,\nincluding without limitation the Employer's business and operating plans, software, and competitors. Without limiting\nthe generality of the foregoing, Confidential Information shall include trade secrets as “trade secrets” are defined under\nthe version of the Uniform Trade Secrets Act adopted and in effect in the State of California, as amended from time to\ntime during the term of this Agreement, the provisions of which defining “trade secrets” are incorporated herein by\nreference. Confidential Information shall also include but not be limited to all other discoveries, developments, designs,\nimprovements, inventions, formulas, software programs, business plans, processes, username and password information,\ntechniques, know-how, negative know-how, data, research, techniques, technical data, client and customer and supplier\nlists, financial projections, current and prospective financing arrangements, marketing methods, plans, and related data,\ncustomer lists, buying habits and practices, pricing structures, and payment and credit histories, costs of sales and terms\nof trade, the identity and business practices of vendors, suppliers, financiers, bankers, agents, or brokers, the identity,\nskill sets, and job duties of vendors, employees, independent contractors, or Executives, terms of employment for\nemployees, agents, and representatives, including employee stock option plans and participation, written records and\ndata used in developing and operating its business, other confidential information of, about, or concerning Employer’s\nbusiness and affairs, the financing and operations of its business, and its relationships with its employees, agents,\ncustomers, vendors, or representatives, and any modifications or enhancements of any of the foregoing, and all Employer\nprogram, pricing, marketing, sales, business contract, or other financial or business information. Confidential\nInformation shall not, however, include any information which Executive can establish: (i) was publicly known and\nmade generally available in the public domain prior to the time of disclosure to Executive by Employer; (ii) becomes\npublicly known and made generally available after disclosure to Executive by Employer through no action or inaction of\nExecutive; or (iii) is in the possession of Executive, without confidentiality restrictions, at the time of disclosure by the\nEmployer as shown by Executive's files and records immediately prior to the time of disclosure. It shall be presumed that\nany information in the possession of Executive that has been disclosed\n-\nto Executive by Employer, or any agent or representative of Employer, is not within any of the exceptions to the\ndefinition of Confidential Information set forth in the previous sentence, and the burden is on Executive to prove\notherwise by written records and documentation.\n3. Non-use and Non-disclosure. Executive agrees not to use or disclose any Confidential Information for\nany purpose except as part of Executive’s performance of his job duties during his employment by the Employer.\nExecutive shall not reverse-engineer, disassemble or decompile any prototypes, software or other tangible objects,\nwhich embody Employer's Confidential Information and which are provided to Executive hereunder. The Executive\nagrees that all Confidential Information shall not be used by the Executive in any way adverse to the interests of the\nEmployer or any of its subsidiaries during the Term of this Agreement, and shall not be used by the Executive in any\nway whatsoever following the Term of this Agreement. The Executive will not, during the Term or thereafter, use,\nreference, paraphrase, deliver, reproduce, or in any way allow such information, documents, and/or things to be used,\ndelivered, reproduced, or referenced, by any third party without specific prior written request to and the written\nauthorization from a duly authorized representative of the Employer. During and after termination of the Executive’s\nemployment with the Employer, the Executive will not use, publish, release, reproduce, or otherwise make available to\nany third party any information, document, or thing containing or describing any trade secret or other Confidential\nInformation of the Employer without prior specific written authorization of the Employer.\n4. Maintenance of Confidentiality. Executive agrees that he shall take all reasonable measures to protect\nthe secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the\nforegoing, Executive shall take at least those measures that Executive takes to protect his own most highly confidential\ninformation. Executive shall not make any copies of Confidential Information, except as previously approved in writing\nby the Employer. Executive shall reproduce the Employer's proprietary rights and confidentiality notices on any such\napproved copies, in the same manner in which such notices were set forth in or on the original. Executive shall\nimmediately notify the Employer in the event of any unauthorized use or disclosure of the Confidential Information.\n5. Ownership. All documentary Confidential Information, and all copies and summaries or synopses\nthereof, however made or obtained, and whether in tangible or electronic medium, are and shall remain the exclusive\nproperty of the Employer.\n6. Return of Materials. All documents and other tangible objects containing or representing Confidential\nInformation and all copies thereof which are in the possession of Executive shall be and remain the property of\nEmployer and shall be promptly returned to Employer upon Employer's request.\n7. No License. Nothing in this Agreement is intended to grant any rights to Executive under any patent,\nmask work right, or copyright of Employer, nor shall this Agreement grant Executive any rights in or to Confidential\nInformation except as expressly set forth herein.\n12\n8. Term. This Agreement shall survive until such time as all Confidential Information disclosed hereunder\nbecomes publicly known and made generally available through no action or inaction of Executive.\n9. Remedies. Executive agrees that any violation or threatened violation of this Agreement will cause\nirreparable injury to the Employer, entitling Employer to seek injunctive relief in addition to all legal remedies.\nAGREED AND ACCEPTED:\nERIN DERUGGIERO (“Executive”):\n/s/ Erin DeRuggiero\nDate: October 19, 2015\nSOCIAL REALITY, INC. (“Employer”):\nBy: /s/ Chris Miglino\nName: Chris Miglino\nTitle: Chief Executive Officer\nDate: October 19, 2015\n13	Exhibit A\nCONFIDENTIALITY/NON-DISCLOSUREA AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this "Agreement") is made and entered into as of the\ndate of the latter of the two signatures appearing below between Social Reality, Inc. ("Employer") and Erin DeRuggiero\n("Executive").\n1.\nPurpose. Employer wishes to employ the Executive pursuant, during which employment the Employer\nmay disclose to Executive certain confidential technical, financial, and business information including, but not limited\nto, information relating to advertising techniques, historical prices, Internet-based advertising, marketing practices,\nclients, prospective clients, proprietary software, trade secrets, and other intellectual property which Employer desires\nExecutive to treat as confidential during and after the termination of Executive's employment.\n2.\nDefinition. "Confidential Information" means any information, documents, and/or tangible things\ndisclosed\nto\nExecutive\nby\nEmployer,\neither\ndirectly\nor\nindirectly\nin\nwriting,\norally\nor\nby\ninspection\nof\ntangible\nobjects,\nincluding without limitation the Employer's business and operating plans, software, and competitors. Without limiting\nthe generality of the foregoing, Confidential Information shall include trade secrets as "trade secrets" are defined under\nthe version of the Uniform Trade Secrets Act adopted and in effect in the State of California, as amended from time\nto\ntime during the term of this Agreement, the provisions of which defining "trade secrets" are incorporated herein by\nreference.\nConfidential\nInformation\nshall\nalso\ninclude\nbut\nnot\nbe\nlimited\nto\nall\nother\ndiscoveries,\ndevelopments,\ndesigns,\nimprovements, inventions, formulas, software programs, business plans, processes, username and password information,\ntechniques, know-how, negative know-how, data, research, techniques, technical data, client and customer and supplier\nlists, financial projections, current and prospective financing arrangements, marketing methods, plans, and related data,\ncustomer lists, buying habits and practices, pricing structures, and payment and credit histories, costs of sales and terms\nof trade, the identity and business practices of vendors, suppliers, financiers, bankers, agents, or brokers, the identity,\nskill sets, and job duties of vendors, employees, independent contractors, or Executives, terms of employment for\nemployees, agents, and representatives, including employee stock option plans and participation, written records and\ndata used in developing and operating its business, other confidential information of, about, or concerning Employer's\nbusiness and affairs, the financing and operations of its business, and its relationships with its employees, agents,\ncustomers, vendors, or representatives, and any modifications or enhancements of any of the foregoing, and all Employer\nprogram, pricing, marketing, sales, business contract, or other financial or business information. Confidential\nInformation shall not, however, include any information which Executive can establish: (i) was publicly known and\nmade\ngenerally\navailable\nin\nthe\npublic\ndomain\nprior\nto\nthe\ntime\nof\ndisclosure\nto\nExecutive\nby\nEmployer;\n(ii)\nbecomes\npublicly known and made generally available after disclosure to Executive by Employer through no action or inaction of\nExecutive; or (iii) is in the possession of Executive, without confidentiality restrictions, at the time of disclosure by the\nEmployer as shown by Executive's files and records immediately prior to the time of disclosure. It shall be presumed that\nany information in the possession of Executive that has been disclosed\nto Executive by Employer, or any agent or representative of Employer, is not within any of the exceptions to the\ndefinition of Confidential Information set forth in the previous sentence, and the burden is on Executive to prove\notherwise by written records and documentation.\n3.\nNon-use and Non-disclosure. Executive agrees not to use or disclose any Confidential Information for\nany purpose except as part of Executive's performance of his job duties during his employment by the Employer.\nExecutive shall not reverse-engineer, disassemble or decompile any prototypes, software or other tangible objects,\nwhich embody Employer's Confidential Information and which are provided to Executive hereunder. The Executive\nagrees that all Confidential Information shall not be used by the Executive in any way adverse to the interests of the\nEmployer or any of its subsidiaries during the Term of this Agreement, and shall not be used by the Executive in any\nway whatsoever following the Term of this Agreement. The Executive will not, during the Term or thereafter, use,\nreference, paraphrase, deliver, reproduce, or in any way allow such information, documents, and/or things to be used,\ndelivered, reproduced, or referenced, by any third party without specific prior written request to and the written\nauthorization from a duly authorized representative of the Employer. During and after termination of the Executive's\nemployment with the Employer, the Executive will not use, publish, release, reproduce, or otherwise make available to\nany third party any information, document, or thing containing or describing any trade secret or other Confidential\nInformation of the Employer without prior specific written authorization of the Employer.\n4.\nMaintenance of Confidentiality. Executive agrees that he shall take all reasonable measures to protect\nthe secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the\nforegoing,\nExecutive\nshall\ntake\nat\nleast\nthose\nmeasures\nthat\nExecutive\ntakes\nto\nprotect\nhis\nown\nmost\nhighly\nconfidential\ninformation. Executive shall not make any copies of Confidential Information, except as previously approved in writing\nby the Employer. Executive shall reproduce the Employer's proprietary rights and confidentiality notices on any such\napproved copies, in the same manner in which such notices were set forth in or on the original. Executive shall\nimmediately notify the Employer in the event of any unauthorized use or disclosure of the Confidential Information.\n5.\nOwnership. All documentary Confidential Information, and all copies and summaries or synopses\nthereof, however made or obtained, and whether in tangible or electronic medium, are and shall remain the exclusive\nproperty of the Employer.\n6.\nReturn of Materials. All documents and other tangible objects containing or representing Confidential\nInformation and all copies thereof which are in the possession of Executive shall be and remain the property of\nEmployer and shall be promptly returned to Employer upon Employer's request.\n7.\nNo License. Nothing in this Agreement is intended to grant any rights to Executive under any patent,\nmask work right, or copyright of Employer, nor shall this Agreement grant Executive any rights in or to Confidential\nInformation except as expressly set forth herein.\n12\n8.\nTerm. This Agreement shall survive until such time as all Confidential Information disclosed hereunder\nbecomes publicly known and made generally available through no action or inaction of Executive.\n9.\nRemedies. Executive agrees that any violation or threatened violation of this Agreement will cause\nirreparable injury to the Employer, entitling Employer to seek injunctive relief in addition to all legal remedies.\nAGREED AND ACCEPTED:\nERIN DERUGGIERO ("Executive"):\n/s/ Erin DeRuggiero\nDate:\nOctober 19, 2015\nSOCIAL REALITY, INC. ("Employer"):\nBy:\n/s/ Chris Miglino\nName:\nChris Miglino\nTitle:\nChief Executive Officer\nDate:\nOctober 19, 2015\n13	1.\n2.\nExhibit A\nCONFIDENTIALITY/ NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”) is made and entered into as of the\ndate of the latter of the two signatures appearing below between Social Reality, Inc. (“Employer”) and Erin DeRuggiero\n(“Executive”).\nPurpose. Employer wishes to employ the Executive pursuant, during which employment the Employer\nmay disclose to Executive certain confidential technical, financial, and business information including, but not limited\nto, information relating to advertising techniques, historical prices, Internet-based advertising, marketing practices,\nclients, prospective clients, proprietary software, trade secrets, and other intellectual property which Employer desires\nExecutive to treat as confidential during and after the termination of Executive’s employment.\nDefinition.\n"Confidential Information" means any information, documents, and/or tangible things\ndisclosed to Executive by Employer, either directly or indirectly in writing, orally or by inspection of tangible objects,\nincluding without limitation the Employer's business and operating plans, software, and competitors. Without limiting\nthe generality of the foregoing, Confidential Information shall include trade secrets as “trade secrets” are defined under\nthe version of the Uniform Trade Secrets Act adopted and in effect in the State of California, as amended from time to\ntime during the term of this Agreement, the provisions of which defining “trade secrets” are incorporated herein by\nreference. Confidential Information shall also include but not be limited to all other discoveries, developments, designs,\nimprovements, inventions, formulas, software programs, business plans, processes, username and password information,\ntechniques, know-how, negative know-how, data, research, techniques, technical data, client and customer and supplier\nlists, financial projections, current and prospective financing arrangements, marketing methods, plans, and related data,\ncustomer lists, buying habits and practices, pricing structures, and payment and credit histories, costs of sales and terms\nof trade, the identity and business practices of vendors, suppliers, financiers, bankers, agents, or brokers, the identity,\nskill sets, and job duties of vendors, employees, independent contractors, or Executives, terms of employment for\nemployees, agents, and representatives, including employee stock option plans and participation, written records and\ndata used in developing and operating its business, other confidential information of, about, or concerning Employer ’s\nbusiness and affairs, the financing and operations of its business, and its relationships with its employees, agents,\ncustomers, vendors, or representatives, and any modifications or enhancements of any of the foregoing, and all Employer\nprogram, pricing, marketing, sales, business contract, or other financial or business information. Confidential\nInformation shall not, however, include any information which Executive can establish: (i) was publicly known and\nmade generally available in the public domain prior to the time of disclosure to Executive by Employer; (ii) becomes\npublicly known and made generally available after disclosure to Executive by Employer through no action or inaction of\nExecutive; or (iii) is in the possession of Executive, without confidentiality restrictions, at the time of disclosure by the\nEmployer as shown by Executive's files and records immediately prior to the time of disclosure. It shall be presumed that\nany information in the possession of Executive that has been disclosed\n3.\n4.\n5.\nOwnership.\n6.\n7.\nto Executive by Employer, or any agent or representative of Employer, is not within any of the exceptions to the\ndefinition of Confidential Information set forth in the previous sentence, and the burden is on Executive to prove\notherwise by written records and documentation.\nNon-use and Non-disclosure. Executive agrees not to use or disclose any Confidential Information for\nany purpose except as part of Executive’s performance of his job duties during his employment by the Employer.\nExecutive shall not reverse-engineer, disassemble or decompile any prototypes, software or other tangible objects,\nwhich embody Employer's Confidential Information and which are provided to Executive hereunder. The Executive\nagrees that all Confidential Information shall not be used by the Executive in any way adverse to the interests of the\nEmployer or any of its subsidiaries during the Term of this Agreement, and shall not be used by the Executive in any\nway whatsoever following the Term of this Agreement. The Executive will not, during the Term or thereafter, use,\nreference, paraphrase, deliver, reproduce, or in any way allow such information, documents, and/or things to be used,\ndelivered, reproduced, or referenced, by any third party without specific prior written request to and the written\nauthorization from a duly authorized representative of the Employer. During and after termination of the Executive’s\nemployment with the Employer, the Executive will not use, publish, release, reproduce, or otherwise make available to\nany third party any information, document, or thing containing or describing any trade secret or other Confidential\nInformation of the Employer without prior specific written authorization of the Employer.\nMaintenance of Confidentiality. Executive agrees that he shall take all reasonable measures to protect\nthe secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the\nforegoing, Executive shall take at least those measures that Executive takes to protect his own most highly confidential\ninformation. Executive shall not make any copies of Confidential Information, except as previously approved in writing\nby the Employer. Executive shall reproduce the Employer's proprietary rights and confidentiality notices on any such\napproved copies, in the same manner in which such notices were set forth in or on the original. Executive shall\nimmediately notify the Employer in the event of any unauthorized use or disclosure of the Confidential Information.\nAll documentary Confidential Information, and all copies and summaries or synopses\nthereof, however made or obtained, and whether in tangible or electronic medium, are and shall remain the exclusive\nproperty of the Employer.\nReturn of Materials. All documents and other tangible objects containing or representing Confidential\nInformation and all copies thereof which are in the possession of Executive shall be and remain the property of\nEmployer and shall be promptly returned to Employer upon Employer's request.\nNo License. Nothing in this Agreement is intended to grant any rights to Executive under any patent,\nmask work right, or copyright of Employer, nor shall this Agreement grant Executive any rights in or to Confidential\nInformation except as expressly set forth herein.\n12\n8.\n9.\nDate:\nBy:\nName:\nTitle:\nDate:\nTerm. This Agreement shall survive until such time as all Confidential Information disclosed hereunder\nbecomes publicly known and made generally available through no action or inaction of Executive.\nRemedies. Executive agrees that any violation or threatened violation of this Agreement will cause\nirreparable injury to the Employer, entitling Employer to seek injunctive relief in addition to all legal remedies.\nAGREED AND ACCEPTED:\nERIN DERUGGIERO (“Executive”):\n/s/ Erin DeRuggiero\nOctober 19, 2015\nSOCIAL REALITY, INC. (“Employer”):\n/s/ Chris Miglino\nChris Miglino\nChief Executive Officer\nOctober 19, 2015\n13
b721dcae6974087868aeb77364c6d4b2.pdf	effective_date jurisdiction party	Exhibit 10.2\nCorporate Headquarters\n8250 Jones Branch Drive\nMcLean, VA 22102\nTel: (703) 918-5000\nwww.FreddieMac.com\nRESTRICTIVE COVENANT AND CONFIDENTIALITY AGREEMENT\nIn exchange for the mutual promises and consideration set forth below, this Restrictive Covenant and Confidentiality Agreement\n(“Agreement”) is entered into by and between the Federal Home Loan Mortgage Corporation (“Freddie Mac” or “Company”) and\nDonald H. Layton (“Executive” or “you”), effective as of May 21, 2012. To the extent that any required approval of this Agreement\nor the employment agreement of which this Agreement forms a part is not obtained, this Agreement shall be null and void in all\nrespects and you shall have no further obligations under this Agreement, the employment agreement or any other plan, policy or\nprogram of Freddie Mac.\nI.\nDefinitions\nThe following terms shall have the meanings indicated when used in this Agreement.\nA.\nProhibited Competition: Considering offers of employment from, seeking or accepting employment with, directly or\nindirectly providing professional services to, becoming a director of, or being an investor (representing more than a five (5) percent\nequity interest) in, (i) Fannie Mae (ii) all Federal Home Loan Banks (including the Office of Finance); and (iii) such other entities to\nwhich the Executive and the Company may agree in writing from time-to-time.\nB.\nConfidential Information: Information or materials in written, oral, magnetic, digital, computer, photographic, optical,\nelectronic, or other form, whether now existing or developed or created during the period of Executive’s employment with Freddie\nMac, that constitutes trade secrets and/or proprietary or confidential information. This information includes, but is not limited to:\n(i) all information marked Proprietary or Confidential; (ii) information concerning the components, capabilities, and attributes of\nFreddie Mac’s business plans, methods, and strategies; (iii) information relating to tactics, plans, or strategies concerning\nshareholders, investors, pricing, investment, marketing, sales, trading, funding, hedging, modeling, sales and risk management;\n(iv) financial or tax information and analyses, including but not limited to, information concerning Freddie Mac’s capital structure\nand tax or financial planning; (v) confidential information about Freddie Mac’s customers, borrowers, employees, or others;\n(vi) pricing and quoting information, policies, procedures, and practices; (vii) confidential customer lists; (viii) proprietary\nalgorithms; (ix) confidential contract terms; (x) confidential information concerning Freddie Mac’s policies, procedures, and\npractices or the way in which Freddie Mac does business; (xi) proprietary or confidential data bases, including their structure and\ncontent; (xii) proprietary Freddie Mac business software, including its design, specifications and documentation; (xiii) information\nabout Freddie Mac products, programs, and services which has not yet been made public; (xiv) confidential information about\nFreddie Mac’s dealings with third parties, including dealers, customers, vendors, and regulators; and/or (xv) confidential information\nbelonging to third parties to which Executive received access in connection with Executive’s employment with Freddie Mac.\nConfidential Information does not include general skills, experience, or knowledge acquired in connection with Executive’s\nemployment with Freddie Mac that otherwise are generally known to the public or within the industry or trade in which Freddie Mac\noperates.\nII.\nNon-Competition\nExecutive recognizes that as a result of Executive’s employment with Freddie Mac, Executive has access to and knowledge of\ncritically sensitive Confidential Information, the improper disclosure or use of which would result in grave competitive harm to\nFreddie Mac. Therefore, Executive agrees that during\n2\nExecutive’s employment with Freddie Mac and for twenty-four (24) months immediately following termination of Executive’s\nemployment for any reason, Executive shall not engage in Prohibited Competition. Executive acknowledges and agrees that this\ncovenant has unique, substantial and immeasurable value to Freddie Mac, that Executive has sufficient skills to provide a livelihood\nfor Executive while this covenant remains in force, and that this covenant will not interfere with Executive’s ability to work\nconsistent with Executive’s experience, training and education. This non-competition covenant applies regardless of whether\nExecutive’s employment is terminated by Executive, by Freddie Mac, or by a joint decision.\nIII.\nNon-Solicitation and Non-Recruitment\nDuring Executive’s employment with Freddie Mac and for a period of twelve (12) months after Executive’s termination of\nemployment for any reason, Executive shall not directly or indirectly, on his own behalf of or on behalf of any other person,\ncorporation, partnership, firm, financial institution or other business entity, recruit or solicit or attempt to recruit or solicit or assist\nanother to recruit or solicit any person (who at such time is employed as a Freddie Mac officer (or equivalent)) to cease their\nemployment relationship with Freddie Mac for the purpose of their being employed by or providing professional services to any other\nentity or person; provided that this section shall not be construed as a prohibition on the ability of Executive to provide a reference to\nany person or entity with which Executive has no affiliation provided the Freddie Mac employee has notified Freddie Mac of his or\nher intent to terminate their employment with Freddie Mac.\nIV.\nTreatment of Confidential Information\nA.\nNon-Disclosure. Executive recognizes that Freddie Mac is engaged in an extremely competitive business and that, in the\ncourse of performing Executive’s job duties, Executive will have access to and gain knowledge about Confidential Information.\nExecutive further recognizes the importance of carefully protecting this Confidential Information in order for Freddie Mac to\ncompete successfully. Therefore, Executive agrees that Executive will neither divulge Confidential Information to any persons,\nincluding to other Freddie Mac employees who do not have a Freddie Mac business-related need to know, nor make use of the\nConfidential Information for the Executive’s own benefit or for the benefit of anyone else other than Freddie Mac. Executive further\nagrees to take all reasonable precautions to prevent the disclosure of Confidential Information to unauthorized persons or entities, and\nto comply with all Company policies, procedures, and instructions regarding the treatment of such information.\nB.\nReturn of Materials. Executive agrees that upon termination of Executive’s employment with Freddie Mac for any reason\nwhatsoever, Executive will deliver to Freddie Mac’s General Counsel all tangible materials embodying Confidential Information,\nincluding, but not limited to, any documentation, records, listings, notes, files, data, sketches, memoranda, models, accounts,\nreference materials, samples, machine-readable media, computer disks, tapes, and equipment which in any way relate to Confidential\nInformation, whether developed by Executive or not. Executive further agrees not to retain any copies of any materials embodying\nConfidential Information.\nC.\nPost-Termination Obligations. Executive agrees that after the termination of Executive’s employment for any reason,\nExecutive will not use in any way whatsoever, nor disclose any Confidential Information learned or obtained in connection with\nExecutive’s employment with Freddie Mac without first obtaining the written permission of the Senior Vice President of Human\nResources of Freddie Mac. Executive further agrees that, in order to assure the continued confidentiality of the Confidential\nInformation, Freddie Mac may correspond with Executive’s future employers to advise them generally of Executive’s exposure to\nand knowledge of Confidential Information, and Executive’s obligations and responsibilities regarding the Confidential Information.\nExecutive understands and agrees that any such contact may include a request for assurance and confirmation from such employer(s)\nthat Executive will not disclose Confidential Information to such employer(s), nor will such employer(s) permit any use\n3\nwhatsoever of the Confidential Information. To enable Freddie Mac to monitor compliance with the obligations imposed by this\nAgreement, Executive further agrees to inform in writing Freddie Mac’s Senior Vice President of Human Resources of the identity of\nExecutive’s subsequent employer(s) and Executive’s prospective job title and responsibilities prior to beginning employment.\nExecutive agrees that this notice requirement shall remain in effect for twelve (12) months following the termination of Executive’s\nFreddie Mac employment.\nD.\nAbility to Enforce Agreement and Assist Government Investigations. Nothing in this Agreement prohibits or otherwise\nrestricts you from: (1) making any disclosure of information required by law; (2) assisting any regulatory or law enforcement agency\nor legislative body to the extent you maintain a legal right to do so notwithstanding this Agreement; (3) filing, testifying, participating\nin or otherwise assisting in a proceeding relating to the alleged violation of any federal, state, or local law, regulation, or rule, to the\nextent you maintain a legal right to do so notwithstanding this Agreement; (4) filing, testifying, participating in or otherwise assisting\nthe Securities and Exchange Commission or any other proper authority in a proceeding relating to allegations of fraud, (5) enforcing\nany rights or defending any claims hereunder or under the employment agreement or any plan or program of Freddie Mac, or\n(6) making any disclosure with the prior written consent of the Board.\nV.\nConsideration Given to Executive\nIn exchange for agreeing to be bound by the terms, conditions, and restrictions stated in this Agreement, Freddie Mac will provide the\nExecutive with the following consideration, which itself is adequate consideration for Executive’s agreement to be bound by the\nprovisions of this Agreement:\n•\nCompensation. Freddie Mac has agreed to hire and to compensate Executive as its Chief Executive Officer pursuant to the\nterms and conditions set forth in the May 7, 2012 memorandum between Executive and Freddie Mac.\nVI.\nCompliance with the Code of Conduct and Corporate Policies, Including Personal Securities\nInvestments Policy\nAs a Freddie Mac employee, Executive will be subject to Freddie Mac’s Code of Conduct (“Code”) and to Corporate Policy 3-206,\nPersonal Securities Investments Policy (“Policy”) that, among other things, limit the investment activities of Freddie Mac employees.\nExecutive agrees to fully comply with the Code and the Policy.\nVII.\nAbsence of Any Conflict of Interest\nOther than as disclosed in the Executive’s D&O Questionnaire that was previously provided to you, (i) Executive represents that\nExecutive does not have any confidential information, trade secrets or other proprietary information that Executive obtained as the\nresult of Executive’s employment with another employer that Executive will be using in Executive’s position at Freddie Mac; and\n(ii) Executive also represents that Executive is not subject to any employment, confidentiality or stock grant agreements, or any other\nrestrictions or limitations imposed by a prior employer, which would affect Executive’s ability to perform the duties and\nresponsibilities of Chief Executive Officer of Freddie Mac and that Executive has provided Freddie Mac with copies of any such\nagreements or limitations so that Freddie Mac can make an independent judgment that Executive’s employment with Freddie Mac is\nnot inconsistent with any of its terms.\nVIII.\nEffect of Termination of Employment\nIn the event that your employment terminates for any reason, you agree that you shall be deemed to have resigned, effective as of the\ndate of such termination of employment with Freddie Mac, as a member of\n4\nFreddie Mac’s Board of Directors and from all positions, titles, duties, authorities and responsibilities arising out of or relating to\nyour employment or such Board membership, including any directorships or fiduciary positions to which you were serving at the\nrequest of, or appointment by, Freddie Mac. You also agree that you will execute any such documents and take any such further steps\nas Freddie Mac’s Board of Directors reasonably may ask of you to effectuate such resignations.\nIX.\nReservation of Rights\nThis Agreement in not intended, nor shall it be interpreted, to constitute a contract of employment for a specified duration. Your\nemployment is “at-will” and each of you and Freddie Mac retain the discretion to terminate the employment relationship at any time\nfor any lawful reason with or without notice.\nX.\nEnforcement\nA.\nExecutive acknowledges that Executive may be subject to discipline, up to and including termination of employment, for\nExecutive’s breach or threat of breach of any provision of this Agreement.\nB.\nExecutive agrees that irreparable injury will result to Freddie Mac’s business interests in the event of breach or threatened\nbreach of this Agreement, the full extent of Freddie Mac’s damages will be impossible to ascertain, and monetary damages will not\nbe an adequate remedy for Freddie Mac. Therefore, Executive agrees that in the event of a breach or threat of breach of any\nprovision(s) of this Agreement, Freddie Mac, in addition to any other relief available, shall be entitled to temporary, preliminary, and\npermanent equitable relief to restrain any such breach or threat of breach by Executive and all persons acting for and/or in concert\nwith Executive, without the necessity of posting bond or security, which Executive expressly waives.\nC.\nExecutive agrees that each of Executive’s obligations specified in this Agreement is a separate and independent covenant,\nand that all of Executive’s obligations set forth herein shall survive any termination, for any reason, of Executive’s Freddie Mac\nemployment. To the extent that any provision of this Agreement is determined by a court of competent jurisdiction to be\nunenforceable because it is overbroad, that provision shall be limited and enforced to the extent permitted by applicable law. Should\nany provision of this Agreement be declared or determined by any court of competent jurisdiction to be unenforceable or invalid\nunder applicable law, the validity of the remaining obligations will not be affected thereby and only the unenforceable or invalid\nobligation will be deemed not to be a part of this Agreement.\nD.\nThis Agreement is governed by, and will be construed in accordance with, the laws of the Commonwealth of Virginia,\nwithout regard to its or any other jurisdiction’s conflict-of-law provisions. Executive agrees that any action related to or arising out of\nthis Agreement shall be brought exclusively in the United States District Court for the Eastern District of Virginia, and Executive\nhereby irrevocably consents to personal jurisdiction and venue in such court and to service of process by United States Mail or\nexpress courier service in any such action.\nE.\nIf any dispute(s) arise(s) between Freddie Mac and Executive with respect to any matter which is the subject of this\nAgreement, the prevailing party in such dispute(s) shall be entitled to recover from the other party all of its costs and expenses,\nincluding its reasonable attorneys’ fees.\nExecutive has been advised to discuss all aspects of this Agreement with Executive’s private attorney. Executive\nacknowledges that Executive has carefully read and understands the terms and provisions of this Agreement and that they\nare reasonable. Executive signs this Agreement voluntarily and accepts all obligations contained in this Agreement in\nexchange for the consideration to be given to Executive as outlined above, which Executive acknowledges is adequate\n5\nand satisfactory, and which Executive further acknowledges Freddie Mac is not otherwise obligated to provide to Executive.\nNeither Freddie Mac nor its agents, representatives, directors, officers or employees have made any representations to\nExecutive concerning the terms or effects of this Agreement, other than those contained in this Agreement.\nBy:\n/s/ Donald H. Layton\nDate: May 7, 2012\nDonald H. Layton	Exhibit 10.2\nCorporate Headquarters Tel: (703) 918-5000\n8250Jones Branch Drive www.FreddieMac.com\nMcLean,VA 22102\nRESTRICTIVE COVENANT AND CONFIDENTIALITY AGREEMENT\nIn exchange for the mutual promises and consideration set forth below, this Restrictive Covenant and Confidentiality Agreement\n(”A greement”) is entered into by and between the Federal Home Loan Mortgage Corporation (”Freddie Mac” or ”Company”) and\nDonald H. Layton (”Executive” or ”you”), effective as of May 21, 2012. To the extent that any required approval of this Agreement\nor the employment agreement of which this Agreement forms a part is not obtained, this Agreement shall be null and void in all\nrespects and you shall have no further obligations under this Agreement, the employment agreement or any other plan, policy or\nprogram of Freddie Mac.\n1. Definitions\nThe following terms shall have the meanings indicated when used in this Agreement.\nA. Prohibited C ompetition: Considering offers of employment from, seeking or accepting employment with, directly or\nindirectly providing professional services to, becoming a director of, or being an investor (representing more than a five (5) percent\nequity interest) in, (i) Fannie Mae (ii) all Federal Home Loan Banks (including the Office of Finance); and (iii) such other entities to\nwhich the Executive and the Company may agree in writing from time-to-time.\nB. C onfidential Information: Information or materials in written, oral, magnetic, digital, computer, photographic, optical,\nelectronic, or other form, whether now existing or developed or created during the period of Executive’s employment with Freddie\nMac, that constitutes trade secrets and/or proprietary or confidential information. This information includes, but is not limited to:\n(i) all information marked Proprietary or Confidential; (ii) information concerning the components, capabilities, and attributes of\nFreddie Mac’s business plans, methods, and strategies; (iii) information relating to tactics, plans, or strategies concerning\nshareholders, investors, pricing, investment, marketing, sales, trading, funding, hedging, modeling, sales and risk management;\n(iv) financial or tax information and analyses, including but not limited to, information concerning Freddie Mac’s capital structure\nand tax or financial planning; (v) confidential information about Freddie Mac’s customers, borrowers, employees, or others;\n(vi) pricing and quoting information, policies, procedures, and practices; (vii) confidential customer lists; (viii) proprietary\nalgorithms; (ix) confidential contract terms; (x) confidential information concerning Freddie Mac’s policies, procedures, and\npractices or the way in which Freddie Mac does business; (xi) proprietary or confidential data bases, including their structure and\ncontent; (xii) proprietary Freddie Mac business software, including its design, specifications and documentation; (xiii) information\nabout Freddie Mac products, programs, and services which has not yet been made public; (xiv) confidential information about\nFreddie Mac’s dealings with third parties, including dealers, customers, vendors, and regulators; and/or (xv) confidential information\nbelonging to third parties to which Executive received access in connection with Executive’s employment with Freddie Mac.\nConfidential Information does not include general skills, experience, or knowledge acquired in connection with Executive’s\nemployment with Freddie Mac that otherwise are generally known to the public or within the industry or trade in which Freddie Mac\noperates.\n11. Non-C ompetition\nExecutive recognizes that as a result of Executive’s employment with Freddie Mac, Executive has access to and knowledge of\ncritically sensitive Confidential Information, the improper disclosure or use of which would result in grave competitive harm to\nFreddie Mac. Therefore, Executive agrees that during\nExecutive’s employment with Freddie Mac and for twenty-four (24) months immediately following termination of Executive’s\nemployment for any reason, Executive shall not engage in Prohibited Competition. Executive acknowledges and agrees that this\ncovenant has unique, substantial and immeasurable value to Freddie Mac, that Executive has sufficient skills to provide a livelihood\nfor Executive while this covenant remains in force, and that this covenant will not interfere with Executive’s ability to work\nconsistent with Executive’s experience, training and education. This non-competition covenant applies regardless of whether\nExecutive’s employment is terminated by Executive, by Freddie Mac, or by a joint decision.\nIII. Non-Solicitation and Non-Recruitment\nDuring Executive’s employment with Freddie Mac and for a period of twelve (12) months after Executive’s termination of\nemployment for any reason, Executive shall not directly or indirectly, on his own behalf of or on behalf of any other person,\ncorporation, partnership, firm, financial institution or other business entity, recruit or solicit or attempt to recruit or solicit or assist\nanother to recruit or solicit any person (who at such time is employed as a Freddie Mac officer (or equivalent)) to cease their\nemployment relationship with Freddie Mac for the purpose of their being employed by or providing professional services to any other\nentity or person; provided that this section shall not be construed as a prohibition on the ability of Executive to provide a reference to\nany person or entity with which Executive has no affiliation provided the Freddie Mac employee has notified Freddie Mac of his or\nher intent to terminate their employment with Freddie Mac.\nIV. Treatment of C onfidential Information\nA. Non-D isclosure. Executive recognizes that Freddie Mac is engaged in an extremely competitive business and that, in the\ncourse of performing Executive’s job duties, Executive will have access to and gain knowledge about Confidential lnfonnation.\nExecutive further recognizes the importance of carefully protecting this Confidential Information in order for Freddie Mac to\ncompete successfully. Therefore, Executive agrees that Executive will neither divulge Confidential lnfonnation to any persons,\nincluding to other Freddie Mac employees who do not have a Freddie Mac business-related need to know, nor make use of the\nConfidential Information for the Executive’s own benefit or for the benefit of anyone else other than Freddie Mac. Executive further\nagrees to take all reasonable precautions to prevent the disclosure of Confidential lnfonnation to unauthorized persons or entities, and\nto comply with all Company policies, procedures, and instructions regarding the treatment of such information.\nB. Return of Materials. Executive agrees that upon termination of Executive’s employment with Freddie Mac for any reason\nwhatsoever, Executive will deliver to Freddie Mac’s General Counsel all tangible materials embodying Confidential Information,\nincluding, but not limited to, any documentation, records, listings, notes, files, data, sketches, memoranda, models, accounts,\nreference materials, samples, machine-readable media, computer disks, tapes, and equipment which in any way relate to Confidential\nInformation, whether developed by Executive or not. Executive further agrees not to retain any copies of any materials embodying\nConfidential Information.\nC. Post-Termination Obligations. Executive agrees that after the termination of Executive’s employment for any reason,\nExecutive will not use in any way whatsoever, nor disclose any Confidential Information learned or obtained in connection with\nExecutive’s employment with Freddie Mac without first obtaining the written permission of the Senior Vice President of Human\nResources of Freddie Mac. Executive further agrees that, in order to assure the continued confidentiality of the Confidential\nInformation, Freddie Mac may correspond with Executive’s future employers to advise them generally of Executive’s exposure to\nand knowledge of Confidential Information, and Executive’s obligations and responsibilities regarding the Confidential lnfonnation.\nExecutive understands and agrees that any such contact may include a request for assurance and confirmation from such employer(s)\nthat Executive will not disclose Confidential lnfonnation to such employer(s), nor will such employer(s) permit any use\nwhatsoever of the Confidential Information. To enable Freddie Mac to monitor compliance with the obligations imposed by this\nAgreement, Executive further agrees to inform in writing Freddie Mac’s Senior Vice President of Human Resources of the identity of\nExecutive’s subsequent employer(s) and Executive’s prospective job title and responsibilities prior to beginning employment.\nExecutive agrees that this notice requirement shall remain in effect for twelve (12) months following the termination of Executive’s\nFreddie Mac employment.\nD. Ability to Enforce Agreement and Assist G overnment Investigations. Nothing in this Agreement prohibits or otherwise\nrestricts you from: (1) making any disclosure of information required by law; (2) assisting any regulatory or law enforcement agency\nor legislative body to the extent you maintain a legal right to do so notwithstanding this Agreement; (3) filing, testifying, participating\nin or otherwise assisting in a proceeding relating to the alleged violation of any federal, state, or local law, regulation, or rule, to the\nextent you maintain a legal right to do so notwithstanding this A greement; (4) filing, testifying, participating in or otherwise assisting\nthe Securities and Exchange Commission or any other proper authority in a proceeding relating to allegations of fraud, (5) enforcing\nany rights or defending any claims hereunder or under the employment agreement or any plan or program of Freddie Mac, or\n(6) making any disclosure with the prior written consent of the Board.\nV. C onsideration Given to Executive\nIn exchange for agreeing to be bound by the terms, conditions, and restrictions stated in this Agreement, Freddie Mac will provide the\nExecutive with the following consideration, which itself is adequate consideration for Executive’s agreement to be bound by the\nprovisions of this A greement:\nC ompensation. Freddie Mac has agreed to hire and to compensate Executive as its Chief Executive Officer pursuant to the\nterms and conditions set forth in the May 7, 2012 memorandum between Executive and Freddie Mac.\nVI. C ompliance with the C ode of C onduct and C orporate Policies, Including Personal Securities\nInvestments Policy\nAs a Freddie Mac employee, Executive will be subject to Freddie Mac’s Code of Conduct (”Code”) and to Corporate Policy 3-206,\nPersonal Securities Investments Policy (”Policy”) that, among other things, limit the investment activities of Freddie Mac employees.\nExecutive agrees to fully comply with the Code and the Policy.\nVII. Absence of Any C onflict of Interest\nOther than as disclosed in the Executive’s D&O Questionnaire that was previously provided to you, (i) Executive represents that\nExecutive does not have any confidential information, trade secrets or other proprietary information that Executive obtained as the\nresult of Executive’s employment with another employer that Executive will be using in Executive’s position at Freddie Mac; and\n(ii) Executive also represents that Executive is not subject to any employment, confidentiality or stock grant agreements, or any other\nrestrictions or limitations imposed by a prior employer, which would affect Executive’s ability to perform the duties and\nresponsibilities of Chief Executive Officer of Freddie Mac and that Executive has provided Freddie Mac with copies of any such\nagreements or limitations so that Freddie Mac can make an independent judgment that Executive’ 5 employment with Freddie Mac is\nnot inconsistent with any of its terms.\nVIII. Effect of Termination of Employment\nIn the event that your employment terminates for any reason, you agree that you shall be deemed to have resigned, effective as of the\ndate of such termination of employment with Freddie Mac, as a member of\nFreddie Mac’s Board of Directors and from all positions, titles, duties, authorities and responsibilities arising out of or relating to\nyour employment or such Board membership, including any directorships or fiduciary positions to which you were serving at the\nrequest of, or appointment by, Freddie Mac. Y ou also agree that you will execute any such documents and take any such further steps\nas Freddie Mac’s Board of Directors reasonably may ask of you to effectuate such resignations.\nIX. Reservation of Rights\nThis Agreement in not intended, nor shall it be interpreted, to constitute a contract of employment for a specified duration. Y our\nemployment is ”at-will” and each of you and Freddie Mac retain the discretion to terminate the employment relationship at any time\nfor any lawful reason with or without notice.\nX. Enforcement\nA. Executive acknowledges that Executive may be subject to discipline, up to and including termination of employment, for\nExecutive’s breach or threat of breach of any provision of this Agreement.\nB. Executive agrees that irreparable injury will result to Freddie Mac’s business interests in the event of breach or threatened\nbreach of this Agreement, the full extent of Freddie Mac’s damages will be impossible to ascertain, and monetary damages will not\nbe an adequate remedy for Freddie Mac. Therefore, Executive agrees that in the event of a breach or threat of breach of any\nprovision(s) of this Agreement, Freddie Mac, in addition to any other relief available, shall be entitled to temporary, preliminary, and\npermanent equitable relief to restrain any such breach or threat of breach by Executive and all persons acting for and/or in concert\nwith Executive, without the necessity of posting bond or security, which Executive expressly waives.\nC. Executive agrees that each of Executive’s obligations specified in this Agreement is a separate and independent covenant,\nand that all of Executive’s obligations set forth herein shall survive any termination, for any reason, of Executive’s Freddie Mac\nemployment. To the extent that any provision of this Agreement is determined by a court of competent jurisdiction to be\nunenforceable because it is overbroad, that provision shall be limited and enforced to the extent permitted by applicable law. Should\nany provision of this Agreement be declared or determined by any court of competent jurisdiction to be unenforceable or invalid\nunder applicable law, the validity of the remaining obligations will not be affected thereby and only the unenforceable or invalid\nobligation will be deemed not to be a part of this Agreement.\nD. This Agreement is governed by, and will be construed in accordance with, the laws of the Commonwealth of Virginia,\nwithout regard to its or any other jurisdiction’ 5 conflict-of-law provisions. Executive agrees that any action related to or arising out of\nthis Agreement shall be brought exclusively in the United States District Court for the Eastern District of Virginia, and Executive\nhereby irrevocably consents to personal jurisdiction and venue in such court and to service of process by United States Mail or\nexpress courier service in any such action.\nE. If any dispute(s) arise(s) between Freddie Mac and Executive with respect to any matter which is the subject of this\nAgreement, the prevailing party in such dispute(s) shall be entitled to recover from the other party all of its costs and expenses,\nincluding its reasonable attorneys’ fees.\nExecutive has been advised to discuss all aspects of this Agreement with Executive’s private attorney. Executive\nacknowledges that Executive has carefully read and understands the terms and provisions of this Agreement and that they\nare reasonable. Executive signs this Agreement voluntarily and accepts all obligations contained in this Agreement in\nexchange for the consideration to be given to Executive as outlined above, which Executive acknowledges is adequate\nand satisfactory, and which Executive further acknowledges Freddie Mac is not otherwise obligated to provide to Executive.\nNeither Freddie Mac nor its agents, representatives, directors, officers or employees have made any representations to\nExecutive concerning the terms or effects of this Agreement, other than those contained in this Agreement.\nBy: /s/ Donald H. Layton Date: May 7, 2012\nDona d H. Layton	Exhibit 10.2\nCorporate Headquarters\nTel: (703) 918-5000\n8250 J ones Branch Drive\nwww.FreddieMac.com\nMcLean, VA 22102\nRESTRICTIVE COVENANT AND CONFIDENTIALITY AGREEMENT\nIn exchange for the mutual promises and consideration set forth below, this Restrictive Covenant and Confidentiality Agreement\n"Agreement") is entered into by and between the Federal Home Loan Mortgage Corporation ("Freddie Mac" or "Company") and\nDonald H. Layton ("Executive" or "you"), effective as of May 21, 2012. To the extent that any required approval of this A greement\nor the employment agreement of which this A greement forms a part is not obtained, this A greement shall be null and void in all\nrespects and you shall have no further obligations under this greement, the employment agreement or any other plan, policy or\nprogram of Freddie Mac.\nI.\nDefinitions\nThe following terms shall have the meanings indicated when used in this A greement.\nA.\nProhibited Competition: Considering offers of employment from, seeking or accepting employment with, directly or\nindirectly providing professional services to, becoming a director of, or being an investor (representing more than a five (5) percent\nequity interest) in, (i) Fannie Mae (ii) all Federal Home Loan Banks (including the Office of Finance); and (iii) such other entities to\nwhich the Executive and the Company may agree in writing from time-to-time.\nB.\nConfidentia Information: Information or materials in written, oral, magnetic, digital, computer, photographic, optical,\nelectronic, or other form, whether now existing or developed or created during the period of Executive's employment with Freddie\nMac, that constitutes trade secrets and/or proprietary or confidential information. This information includes, but is not limited to:\n(i) all information marked Proprietary or Confidential; (ii) information concerning the components, capabilities, and attributes of\nFreddie Mac's business plans, methods, and strategies; (iii) information relating to tactics, plans, or strategies concerning\nshareholders, investors, pricing, investment, marketing, sales, trading, funding, hedging, modeling, sales and risk management;\n(iv) financial or tax information and analyses, including but not limited to, information concerning Freddie Mac's capital structure\nand tax or financial planning; (v) confidential information about Freddie Mac's customers, borrowers, employees, or others;\n(vi) pricing and quoting information, policies, procedures, and practices; (vii) confidential customer lists; (viii) proprietary\nalgorithms; (ix) confidential contract terms; (x) confidential information concerning Freddie Mac's policies, procedures, and\npractices or the way in which Freddie Mac does business; (xi) proprietary or confidential data bases, including their structure and\ncontent; (xii) proprietary Freddie Mac business software, including its design, specifications and documentation; (xiii) information\nabout Freddie Mac products, programs, and services which has not yet been made public; (xiv) confidential information about\nFreddie Mac's dealings with third parties, including dealers, customers, vendors, and regulators; and/or (xv) confidential information\nbelonging to third parties to which Executive received access in connection with Executive's employment with Freddie Mac.\nConfidential Information does not include general skills, experience, or knowledge acquired in connection with Executive's\nemployment with Freddie Mac that otherwise are generally known to the public or within the industry or trade in which Freddie Mac\noperates.\nII.\nompetition\nExecutive recognizes that as a result of Executive's employment with Freddie Mac, Executive has access to and knowledge of\ncritically sensitive Confidential Information, the improper disclosure or use of which would result in grave competitive harm to\nFreddie Mac. Therefore, Executive agrees that during\n2\nExecutive's employment with Freddie Mac and for twenty-four (24) months immediately following termination of Executive's\nemployment for any reason, Executive shall not engage in Prohibited Competition Executive acknowledges and agrees that this\ncovenant has unique, substantial and immeasurable value to Freddie Mac, that Executive has sufficient skills to provide a livelihood\nfor Executive while this covenant remains in force, and that this covenant will not interfere with Executive's ability to work\nconsistent with Executive's experience, training and education. This non-competition covenant applies regardless of whether\nExecutive's employment is terminated by Executive, by Freddie Mac, or by a joint decision.\nIII.\nNon-Solicitation and Non-Recruitment\nDuring Executive's employment with Freddie Mac and for a period of twelve (12) months after Executive's termination of\nemployment for any reason, Executive shall not directly or indirectly, on his own behalf of or on behalf of any other person,\ncorporation, partnership, firm, financial institution or other business entity, recruit or solicit or attempt to recruit or solicit or assist\nanother to recruit or solicit any person (who at such time is employed as a Freddie Mac officer (or equivalent)) to cease their\nemployment relationship with Freddie Mac for the purpose of their being employed by or providing professional services to any other\nentity or person; provided that this section shall not be construed as a prohibition on the ability of Executive to provide a reference to\nany person or entity with which Executive has no affiliation provided the Freddie Mac employee has notified Freddie Mac of his or\nher intent to terminate their employment with Freddie Mac.\nIV.\nTreatment of Confidential Information\nA.\nNon-Disclosure. Executive recognizes that Freddie Mac is engaged in an extremely competitive business and that, in the\ncourse of performing Executive's job duties, Executive will have access to and gain knowledge about Confidential Information.\nExecutive further recognizes the importance of carefully protecting this Confidential Information in order for Freddie Mac\nto\ncompete successfully. Therefore, Executive agrees that Executive will neither divulge Confidential Information to any persons,\nincluding to other Freddie Mac employees who do not have a Freddie Mac business-related need to know, nor make use of the\nConfidential Information for the Executive's own benefit or for the benefit of anyone else other than Freddie Mac. Executive further\nagrees to take all reasonable precautions to prevent the disclosure of Confidential Information to unauthorized persons or entities, and\nto comply with all Company policies, procedures, and instructions regarding the treatment of such information.\nB.\nReturn of Materials. Executive agrees that upon termination of Executive's employment with Freddie Mac for any reason\nwhatsoever, Executive will deliver to Freddie Mac's General Counsel all tangible materials embodying Confidential Information,\nincluding, but not limited to, any documentation, records, listings, notes, files, data sketches, memoranda, models, accounts,\nreference materials, samples, machine-readable media, computer disks, tapes, and equipment which in any way relate to Confidential\nInformation, whether developed by Executive or not. Executive further agrees not to retain any copies of any materials embodying\nConfidential Information.\nC.\nPost-Termination Obligations Executive agrees that after the termination of Executive's employment for any reason,\nExecutive will not use in any way whatsoever, nor disclose any Confidential Information learned or obtained in connection with\nExecutive's employment with Freddie Mac without first obtaining the written permission of the Senior Vice President of Human\nResources of Freddie Mac. Executive further agrees that, in order to assure the continued confidentiality of the Confidential\nInformation, Freddie Mac may correspond with Executive's future employers to advise them generally of Executive's exposure to\nand\nknowledge\nof\nConfidential\nInformation,\nand\nExecutive's\nobligations\nand\nresponsibilities\nregarding\nthe\nConfidential\nInformation.\nExecutive understands and agrees that any such contact may include a request for assurance and confirmation from such employer(s)\nthat Executive will not disclose Confidential Information to such employer(s), nor will such employer(s) permit any use\n3\nwhatsoever of the Confidential Information. To enable Freddie Mac to monitor compliance with the obligations imposed by this\ngreement, Executive further agrees to inform in writing Freddie Mac's Senior Vice President of Human Resources of the identity of\nExecutive's subsequent employer(s) and Executive's prospective job title and responsibilities prior to beginning employment.\nExecutive agrees that this notice requirement shall remain in effect for twelve (12) months following the termination of Executive's\nFreddie Mac employment.\nD.\nAbility to Enforce Agreement and Assist Government Investigations Nothing in this greement prohibits or otherwise\nrestricts you from: (1) making any disclosure of information required by law; (2) assisting any regulatory or law enforcement agency\nor\nlegislative\nbody\nto\nthe\nextent\nyou\nmaintain\na\nlegal\nright\nto\ndo\nso\nnotwithstanding\nthis\nA\ngreement;\n(3)\nfiling,\ntestifying,\nparticipating\nin or otherwise assisting in a proceeding relating to the alleged violation of any federal, state, or local law, regulation, or rule, to the\nextent you maintain a legal right to do so notwithstanding this A greement; (4) filing, testifying, participating in or otherwise assisting\nthe Securities and Exchange Commission or any other proper authority in a proceeding relating to allegations of fraud, (5) enforcing\nany rights or defending any claims hereunder or under the employment agreement or any plan or program of Freddie Mac, or\n(6) making any disclosure with the prior written consent of the Board.\nV.\nConsideration iven to Executive\nIn exchange for agreeing to be bound by the terms, conditions, and restrictions stated in this A greement, Freddie Mac will provide the\nExecutive with the following consideration, which itself is adequate consideration for Executive's agreement to be bound by the\nprovisions of this A greement:\nCompensation. Freddie Mac has agreed to hire and to compensate Executive as its Chief Executive Officer pursuant to the\nterms and conditions set forth in the May 7, 2012 memorandum between Executive and Freddie Mac.\nVI.\nompliance with the Code of Conduct and Corporate Policies, Including Personal Securities\nInvestments Policy\nAs\na\nFreddie Mac employee, Executive will be subject to Freddie Mac's Code of Conduct ("Code") and to Corporate Policy 3-206,\nPersonal Securities Investments Policy ("Policy") that, among other things, limit the investment activities of Freddie Mac employees.\nExecutive agrees to fully comply with the Code and the Policy.\nVII.\nAbsence of Any Conflict of Interest\nOther than as disclosed in the Executive's D&O Questionnaire that was previously provided to you, (i) Executive represents that\nExecutive does not have any confidential information, trade secrets or other proprietary information that Executive obtained as the\nresult of Executive's employment with another employer that Executive will be using in Executive's position at Freddie Mac; and\n(ii) Executive also represents that Executive is not subject to any employment, confidentiality or stock grant agreements, or any other\nrestrictions or limitations imposed by a prior employer, which would affect Executive's ability to perform the duties and\nresponsibilities of Chief Executive Officer of Freddie Mac and that Executive has provided Freddie Mac with copies of any such\nagreements or limitations so that Freddie Mac can make an independent judgment that Executive's employment with Freddie Mac is\nnot inconsistent with any of its terms.\nVIII.\nEffect of Termination of Employment\nIn the event that your employment terminates for any reason, you agree that you shall be deemed to have resigned, effective as of the\ndate of such termination of employment with Freddie Mac, as a member of\n4\nFreddie Mac's Board of Directors and from all positions, titles, duties, authorities and responsibilities arising out of or relating to\nyour employment or such Board membership, including any directorships or fiduciary positions to which you were serving at the\nrequest of, or appointment by, Freddie Mac. Y ou also agree that you will execute any such documents and take any such further steps\nas Freddie Mac's Board of Directors reasonably may ask of you to effectuate such resignations\nIX.\nReservation of Rights\nThis A greement in not intended, nor shall it be interpreted, to constitute a contract of employment for a specified duration. Y our\nemployment is "at-will" and each of you and Freddie Mac retain the discretion to terminate the employment relationship at any time\nfor any lawful reason with or without notice.\nX.\nEnforcement\nA.\nExecutive acknowledges that Executive may be subject to discipline, up to and including termination of employment, for\nExecutive's breach or threat of breach of any provision of this A greement.\nB.\nExecutive agrees that irreparable injury will result to Freddie Mac's business interests in the event of breach or threatened\nbreach of this greement, the full extent of Freddie Mac's damages will be impossible to ascertain, and monetary damages will not\nbe an adequate remedy for Freddie Mac. Therefore, Executive agrees that in the event of a breach or threat of breach of any\nprovision(s) of this greement, Freddie Mac, in addition to any other relief available, shall be entitled to temporary, preliminary, and\npermanent equitable relief to restrain any such breach or threat of breach by Executive and all persons acting for and/or in concert\nwith Executive, without the necessity of posting bond or security, which Executive expressly waives.\nC.\nExecutive agrees that each of Executive's obligations specified in this greement is a separate and independent covenant,\nand that all of Executive's obligations set forth herein shall survive any termination, for any reason, of Executive's Freddie Mac\nemployment. To the extent that any provision of this A greement is determined by a court of competent jurisdiction to be\nunenforceable because it is overbroad, that provision shall be limited and enforced to the extent permitted by applicable law. Should\nany provision of this A greement be declared or determined by any court of competent jurisdiction to be unenforceable or invalid\nunder applicable law, the validity of the remaining obligations will not be affected thereby and only the unenforceable or invalid\nobligation will be deemed not to be a part of this A greement.\nD.\nThis A greement is governed by, and will be construed in accordance with, the laws of the Commonwealth of Virginia,\nwithout regard to its or any other jurisdiction's conflict-of-law provisions. Executive agrees that any action related to or arising out of\nthis A greement shall be brought exclusively in the United States District Court for the Eastern District of Virginia, and Executive\nhereby irrevocably consents to personal jurisdiction and venue in such court and to service of process by United States Mail or\nexpress courier service in any such action.\nE.\nIf any dispute(s) arise(s) between Freddie Mac and Executive with respect to any matter which is the subject of this\nA greement, the prevailing party in such dispute(s) shall be entitled to recover from the other party all of its costs and expenses,\nincluding its reasonable attorneys' fees.\nExecutive has been advised to discuss all aspects of this Agreement with Executive's private attorney. Executive\nacknowledges that Executive has carefully read and understands the terms and provisions of this Agreement and that they\nare reasonable. Executive signs this Agreement voluntarily and accepts all obligations contained in this Agreement in\nexchange for the consideration to be given to Executive as outlined above, which Executive acknowledges is adequate\n5\nand satisfactory, and which Executive further acknowledges Freddie Mac is not otherwise obligated to provide to Executive.\nNeither Freddie Mac nor its agents, representatives, directors, officers or employees have made any representations to\nExecutive concerning the terms or effects of this Agreement, other than those contained in this Agreement.\nBy:\n/s/ Donald H. Layton\nDate:\nMay 7, 2012\nDonald H. Layton	Exhibit 10.2\nCorporate Headquarters\n8250 Jones Branch Drive\nMcLean, VA 22102\nTel: (703) 918-5000\nwww.FreddieMac.com\nRESTRICTIVE COVENANT AND CONFIDENTIALITY AGREEMENT\nIn exchange for the mutual promises and consideration set forth below, this Restrictive Covenant and Confidentiality Agreement\n(“Agreement”) is entered into by and between the Federal Home Loan Mortgage Corporation (“Freddie Mac” or “Company”) and\nDonald H. Layton (“Executive” or “you”), effective as of May 21, 2012. To the extent that any required approval of this Agreement\nor the employment agreement of which this Agreement forms a part is not obtained, this Agreement shall be null and void in all\nrespects and you shall have no further obligations under this Agreement, the employment agreement or any other plan, policy or\nprogram of Freddie Mac.\nI.\nDefinitions\nThe following terms shall have the meanings indicated when used in this Agreement.\nA.\nProhibited Competition: Considering offers of employment from, seeking or accepting employment with, directly or\nindirectly providing professional services to, becoming a director of, or being an investor (representing more than a five (5) percent\nequity interest) in, (i) Fannie Mae (ii) all Federal Home Loan Banks (including the Office of Finance); and (iii) such other entities to\nwhich the Executive and the Company may agree in writing from time-to-time.\nB.\nConfidential Information: Information or materials in written, oral, magnetic, digital, computer, photographic, optical,\nelectronic, or other form, whether now existing or developed or created during the period of Executive’s employment with Freddie\nMac, that constitutes trade secrets and/or proprietary or confidential information. This information includes, but is not limited to:\n(i) all information marked Proprietary or Confidential; (ii) information concerning the components, capabilities, and attributes of\nFreddie Mac’s business plans, methods, and strategies; (iii) information relating to tactics, plans, or strategies concerning\nshareholders, investors, pricing, investment, marketing, sales, trading, funding, hedging, modeling, sales and risk management;\n(iv) financial or tax information and analyses, including but not limited to, information concerning Freddie Mac’s capital structure\nand tax or financial planning; (v) confidential information about Freddie Mac’s customers, borrowers, employees, or others;\n(vi) pricing and quoting information, policies, procedures, and practices; (vii) confidential customer lists; (viii) proprietary\nalgorithms; (ix) confidential contract terms; (x) confidential information concerning Freddie Mac’s policies, procedures, and\npractices or the way in which Freddie Mac does business; (xi) proprietary or confidential data bases, including their structure and\ncontent; (xii) proprietary Freddie Mac business software, including its design, specifications and documentation; (xiii) information\nabout Freddie Mac products, programs, and services which has not yet been made public; (xiv) confidential information about\nFreddie Mac’s dealings with third parties, including dealers, customers, vendors, and regulators; and/or (xv) confidential information\nbelonging to third parties to which Executive received access in connection with Executive’s employment with Freddie Mac.\nConfidential Information does not include general skills, experience, or knowledge acquired in connection with Executive’s\nemployment with Freddie Mac that otherwise are generally known to the public or within the industry or trade in which Freddie Mac\noperates.\nII.\nNon-Competition\nExecutive recognizes that as a result of Executive’s employment with Freddie Mac, Executive has access to and knowledge of\ncritically sensitive Confidential Information, the improper disclosure or use of which would result in grave competitive harm to\nFreddie Mac. Therefore, Executive agrees that during\n2\nExecutive’s employment with Freddie Mac and for twenty-four (24) months immediately following termination of Executive’s\nemployment for any reason, Executive shall not engage in Prohibited Competition. Executive acknowledges and agrees that this\ncovenant has unique, substantial and immeasurable value to Freddie Mac, that Executive has sufficient skills to provide a livelihood\nfor Executive while this covenant remains in force, and that this covenant will not interfere with Executive’s ability to work\nconsistent with Executive’s experience, training and education. This non-competition covenant applies regardless of whether\nExecutive’s employment is terminated by Executive, by Freddie Mac, or by a joint decision.\nIII.\nNon-Solicitation and Non-Recruitment\nDuring Executive’s employment with Freddie Mac and for a period of twelve (12) months after Executive’s termination of\nemployment for any reason, Executive shall not directly or indirectly, on his own behalf of or on behalf of any other person,\ncorporation, partnership, firm, financial institution or other business entity, recruit or solicit or attempt to recruit or solicit or assist\nanother to recruit or solicit any person (who at such time is employed as a Freddie Mac officer (or equivalent)) to cease their\nemployment relationship with Freddie Mac for the purpose of their being employed by or providing professional services to any other\nentity or person; provided that this section shall not be construed as a prohibition on the ability of Executive to provide a reference to\nany person or entity with which Executive has no affiliation provided the Freddie Mac employee has notified Freddie Mac of his or\nher intent to terminate their employment with Freddie Mac.\nIV.\nTreatment of Confidential Information\nA.\nNon-Disclosure. Executive recognizes that Freddie Mac is engaged in an extremely competitive business and that, in the\ncourse of performing Executive’s job duties, Executive will have access to and gain knowledge about Confidential Information.\nExecutive further recognizes the importance of carefully protecting this Confidential Information in order for Freddie Mac to\ncompete successfully. Therefore, Executive agrees that Executive will neither divulge Confidential Information to any persons,\nincluding to other Freddie Mac employees who do not have a Freddie Mac business-related need to know, nor make use of the\nConfidential Information for the Executive’s own benefit or for the benefit of anyone else other than Freddie Mac. Executive further\nagrees to take all reasonable precautions to prevent the disclosure of Confidential Information to unauthorized persons or entities, and\nto comply with all Company policies, procedures, and instructions regarding the treatment of such information.\nB.\nReturn of Materials. Executive agrees that upon termination of Executive’s employment with Freddie Mac for any reason\nwhatsoever, Executive will deliver to Freddie Mac’s General Counsel all tangible materials embodying Confidential Information,\nincluding, but not limited to, any documentation, records, listings, notes, files, data, sketches, memoranda, models, accounts,\nreference materials, samples, machine-readable media, computer disks, tapes, and equipment which in any way relate to Confidential\nInformation, whether developed by Executive or not. Executive further agrees not to retain any copies of any materials embodying\nConfidential Information.\nC.\nPost-Termination Obligations. Executive agrees that after the termination of Executive’s employment for any reason,\nExecutive will not use in any way whatsoever, nor disclose any Confidential Information learned or obtained in connection with\nExecutive’s employment with Freddie Mac without first obtaining the written permission of the Senior Vice President of Human\nResources of Freddie Mac. Executive further agrees that, in order to assure the continued confidentiality of the Confidential\nInformation, Freddie Mac may correspond with Executive’s future employers to advise them generally of Executive’s exposure to\nand knowledge of Confidential Information, and Executive’s obligations and responsibilities regarding the Confidential Information.\nExecutive understands and agrees that any such contact may include a request for assurance and confirmation from such employer(s)\nthat Executive will not disclose Confidential Information to such employer(s), nor will such employer(s) permit any use\n3\nwhatsoever of the Confidential Information. To enable Freddie Mac to monitor compliance with the obligations imposed by this\nAgreement, Executive further agrees to inform in writing Freddie Mac’s Senior Vice President of Human Resources of the identity of\nExecutive’s subsequent employer(s) and Executive’s prospective job title and responsibilities prior to beginning employment.\nExecutive agrees that this notice requirement shall remain in effect for twelve (12) months following the termination of Executive’s\nFreddie Mac employment.\nD.\nAbility to Enforce Agreement and Assist Government Investigations. Nothing in this Agreement prohibits or otherwise\nrestricts you from: (1) making any disclosure of information required by law; (2) assisting any regulatory or law enforcement agency\nor legislative body to the extent you maintain a legal right to do so notwithstanding this Agreement; (3) filing, testifying, participating\nin or otherwise assisting in a proceeding relating to the alleged violation of any federal, state, or local law, regulation, or rule, to the\nextent you maintain a legal right to do so notwithstanding this Agreement; (4) filing, testifying, participating in or otherwise assisting\nthe Securities and Exchange Commission or any other proper authority in a proceeding relating to allegations of fraud, (5) enforcing\nany rights or defending any claims hereunder or under the employment agreement or any plan or program of Freddie Mac, or\n(6) making any disclosure with the prior written consent of the Board.\nV.\nConsideration Given to Executive\nIn exchange for agreeing to be bound by the terms, conditions, and restrictions stated in this Agreement, Freddie Mac will provide the\nExecutive with the following consideration, which itself is adequate consideration for Executive’s agreement to be bound by the\nprovisions of this Agreement:\n•\nCompensation. Freddie Mac has agreed to hire and to compensate Executive as its Chief Executive Officer pursuant to the\nterms and conditions set forth in the May 7, 2012 memorandum between Executive and Freddie Mac.\nVI.\nCompliance with the Code of Conduct and Corporate Policies, Including Personal Securities\nInvestments Policy\nAs a Freddie Mac employee, Executive will be subject to Freddie Mac’s Code of Conduct (“Code”) and to Corporate Policy 3-206,\nPersonal Securities Investments Policy (“Policy”) that, among other things, limit the investment activities of Freddie Mac employees.\nExecutive agrees to fully comply with the Code and the Policy.\nVII.\nAbsence of Any Conflict of Interest\nOther than as disclosed in the Executive’s D&O Questionnaire that was previously provided to you, (i) Executive represents that\nExecutive does not have any confidential information, trade secrets or other proprietary information that Executive obtained as the\nresult of Executive’s employment with another employer that Executive will be using in Executive’s position at Freddie Mac; and\n(ii) Executive also represents that Executive is not subject to any employment, confidentiality or stock grant agreements, or any other\nrestrictions or limitations imposed by a prior employer, which would affect Executive’s ability to perform the duties and\nresponsibilities of Chief Executive Officer of Freddie Mac and that Executive has provided Freddie Mac with copies of any such\nagreements or limitations so that Freddie Mac can make an independent judgment that Executive’s employment with Freddie Mac is\nnot inconsistent with any of its terms.\nVIII.\nEffect of Termination of Employment\nIn the event that your employment terminates for any reason, you agree that you shall be deemed to have resigned, effective as of the\ndate of such termination of employment with Freddie Mac, as a member of\n4\nFreddie Mac’s Board of Directors and from all positions, titles, duties, authorities and responsibilities arising out of or relating to\nyour employment or such Board membership, including any directorships or fiduciary positions to which you were serving at the\nrequest of, or appointment by, Freddie Mac. You also agree that you will execute any such documents and take any such further steps\nas Freddie Mac’s Board of Directors reasonably may ask of you to effectuate such resignations.\nIX.\nReservation of Rights\nThis Agreement in not intended, nor shall it be interpreted, to constitute a contract of employment for a specified duration. Your\nemployment is “at-will” and each of you and Freddie Mac retain the discretion to terminate the employment relationship at any time\nfor any lawful reason with or without notice.\nX.\nEnforcement\nA.\nExecutive acknowledges that Executive may be subject to discipline, up to and including termination of employment, for\nExecutive’s breach or threat of breach of any provision of this Agreement.\nB.\nExecutive agrees that irreparable injury will result to Freddie Mac’s business interests in the event of breach or threatened\nbreach of this Agreement, the full extent of Freddie Mac’s damages will be impossible to ascertain, and monetary damages will not\nbe an adequate remedy for Freddie Mac. Therefore, Executive agrees that in the event of a breach or threat of breach of any\nprovision(s) of this Agreement, Freddie Mac, in addition to any other relief available, shall be entitled to temporary, preliminary, and\npermanent equitable relief to restrain any such breach or threat of breach by Executive and all persons acting for and/or in concert\nwith Executive, without the necessity of posting bond or security, which Executive expressly waives.\nC.\nExecutive agrees that each of Executive’s obligations specified in this Agreement is a separate and independent covenant,\nand that all of Executive’s obligations set forth herein shall survive any termination, for any reason, of Executive’s Freddie Mac\nemployment. To the extent that any provision of this Agreement is determined by a court of competent jurisdiction to be\nunenforceable because it is overbroad, that provision shall be limited and enforced to the extent permitted by applicable law. Should\nany provision of this Agreement be declared or determined by any court of competent jurisdiction to be unenforceable or invalid\nunder applicable law, the validity of the remaining obligations will not be affected thereby and only the unenforceable or invalid\nobligation will be deemed not to be a part of this Agreement.\nD.\nThis Agreement is governed by, and will be construed in accordance with, the laws of the Commonwealth of Virginia,\nwithout regard to its or any other jurisdiction’s conflict-of-law provisions. Executive agrees that any action related to or arising out of\nthis Agreement shall be brought exclusively in the United States District Court for the Eastern District of Virginia, and Executive\nhereby irrevocably consents to personal jurisdiction and venue in such court and to service of process by United States Mail or\nexpress courier service in any such action.\nE.\nIf any dispute(s) arise(s) between Freddie Mac and Executive with respect to any matter which is the subject of this\nAgreement, the prevailing party in such dispute(s) shall be entitled to recover from the other party all of its costs and expenses,\nincluding its reasonable attorneys’ fees.\nExecutive has been advised to discuss all aspects of this Agreement with Executive’s private attorney. Executive\nacknowledges that Executive has carefully read and understands the terms and provisions of this Agreement and that they\nare reasonable. Executive signs this Agreement voluntarily and accepts all obligations contained in this Agreement in\nexchange for the consideration to be given to Executive as outlined above, which Executive acknowledges is adequate\n5\nand satisfactory, and which Executive further acknowledges Freddie Mac is not otherwise obligated to provide to Executive.\nNeither Freddie Mac nor its agents, representatives, directors, officers or employees have made any representations to\nExecutive concerning the terms or effects of this Agreement, other than those contained in this Agreement.\nBy:\n/s/ Donald H. Layton\nDate: May 7, 2012\nDonald H. Layton
b82a10c42fc284dba9870ac7c75cd386.pdf	effective_date jurisdiction party term	EX-10.29 4 cxw-ex1029_421.htm EX-10.29\nExhibit 10.29\n[CoreCivic Letterhead]\nDecember 31, 2017\nHarley G. Lappin\nCoreCivic, Inc.\n10 Burton Hills Boulevard\nNashville, TN 37215\nRe:\nNon-Competition, Non-Solicitation and Confidentiality and Non-Disclosure during your “at-will”\nemployment with CoreCivic of Tennessee, LLC ("Employer")\nMr. Lappin:\nAs we've discussed, you previously notified CoreCivic, Inc. ("CoreCivic" and, collectively with Employer, the\n"Company") of your intention to retire from your position as Executive Vice President and Chief Corrections Officer effective\nJanuary 1, 2018. Your Employment Agreement with the Company expires effective December 31, 2017. However,\nnotwithstanding the expiration of your Employment Agreement, the Company desires that you continue your employment with\nEmployer as an "at will" employee on terms and conditions established from time to time by the Employer.\nThis letter is to clarify and confirm that, in consideration of Employer continuing your employment on an "at will” basis\nwith an annual salary of $175,000.00, which shall be payable in accordance with Employer’s normal payroll practices, you agree to\nbe bound by and to comply with the provisions regarding non-competition, non-solicitation and confidentiality and non-disclosure\nset forth on Exhibit A accompanying this letter.\nPlease confirm your acknowledgement of and agreement with the foregoing by reviewing and signing this letter in the\nspace provided below.\nVery truly yours,\nCORECIVIC, INC.\nBy: /s/ Damon T. Hininger\nDamon T. Hininger\nPresident and Chief Executive Officer\nConfirmed and Agreed as\nof the date written above:\n/s/ Harley G. Lappin\nHarley G. Lappin\nExhibit A\nNon-Competition, Non-Solicitation and Confidentiality and Non-Disclosure\n1.\nBusiness Considerations. All confidential or proprietary information, including but not limited to, any programs, plans or\ndesigns whether in hard copy or electronic format developed by, at the direction of, or with the assistance and/or collaboration of\nHarley G. Lappin ("Employee") during his employment with CoreCivic of Tennessee, LLC (together with its parent, subsidiaries\nand affiliates, the "Company"), contract terms, financial information, operating data, staffing patterns, wage levels, quality\nassurance audit materials and techniques, customer lists, supplier lists, pricing policies, marketing plans, business plans or models,\nmarketing or lobbying information and all other information (the “Confidential & Proprietary Information”), and all other tangible\nor intangible items or ideas making up the Confidential & Proprietary Information owned or developed by or related to the\nCompany, and the goodwill associated with them, which (i) is or was obtained or created by Employee in whole or in part as a result\nof his employment with the Company, and (ii) is not generally available to the public, shall remain the sole and exclusive property\nof the Company.\n2.\nNon-Competition, Non-Solicitation. Employee hereby covenants and agrees that during the term of Employee’s\nemployment with the Company and for a period of one (1) year thereafter, Employee shall not, directly or indirectly: (i) own any\ninterest in, operate, join, control or participate as a partner, director, principal, officer or agent of, enter into the employment of, act\nas a consultant to, or perform any services for any entity (each a “Competing Entity”) which has material operations which compete\nwith any business in which the Company or any of its subsidiaries is then engaged or, to the then existing knowledge of Employee,\nproposes to engage; (ii) solicit any customer or client of the Company or any of its subsidiaries, affiliates, (other than on behalf of\nthe Company) with respect to any business in which the Company or any of its subsidiaries or affiliates is then engaged or, to the\nthen existing knowledge of Employee, proposes to engage; or (iii) induce or encourage any employee of the Company or any of its\nsubsidiaries to leave the employ of the Company or any of its subsidiaries; provided, that Employee may, solely as an investment,\nhold not more than five percent (5%) of the combined voting securities of any publicly-traded corporation or other business entity.\nThe foregoing covenants and agreements of Employee are referred to herein as the “Restrictive Covenant.” Employee\nacknowledges that Employee has carefully read and considered the provisions of the Restrictive Covenant and, having done so,\nagrees that the restrictions set forth herein , including without limitation the time period of restriction set forth above, are fair and\nreasonable and are reasonably required for the protection of the legitimate business and economic interests of the Company.\nEmployee further acknowledges that the Company would not have continued Employee's employment with the Company on an "at\nwill" basis absent Employee’s agreement to the foregoing. In the event that, notwithstanding the foregoing, any of the provisions of\nthis Exhibit A or any parts hereof shall be held to be invalid or unenforceable, the remaining provisions or parts hereof shall\nnevertheless continue to be valid and enforceable as though the invalid or unenforceable portions or parts had not been included\nherein. In the event that any provision of this Exhibit A relating to the time period and/or the area of restriction, if any, and/or\nrelated aspects shall be declared by a court of competent jurisdiction to exceed the maximum restrictiveness such court deems\nreasonable and enforceable, the time period and/or area of restriction and/or related aspects deemed reasonable and enforceable by\nsuch court shall become and thereafter be the maximum restrictions in such regard, and the provisions of the Restrictive Covenant\nshall remain enforceable to the fullest extent deemed reasonable by such court.\n3.\nConfidentiality and Non-Disclosure. In consideration of the continuation of Employee's employment with the Company\non an "at will" basis, Employee agrees that during the term of employment with the Company and thereafter to hold in confidence\nthe Company's Confidential and Proprietary Information, whether communicated orally or in documentary or other tangible form.\nEmployee recognizes that the Company has invested considerable amounts of time and money in attaining and developing all of the\ninformation described above, and any unauthorized disclosure or release of such Confidential and Proprietary Information in any\nform would irreparably harm the Company. Notwithstanding the foregoing, nothing in this Exhibit A limits rights of Employee to\nfile a charge or complaint with or from participating in an investigation or proceeding conducted by the Equal Employment\nOpportunity Commission, National Labor Relations Board, Occupational Safety and Health Administration, the Securities and\nExchange Commission, or any other any federal, state or local agency charged with the enforcement of any laws, including\nproviding documents or any other information.\n4.\nEquitable Relief. Employee agrees that it would be impossible to adequately compensate the Company and its\nsubsidiaries for the damage suffered by the Company or its subsidiaries as a result of Employee’s breach of any of the covenants\nand obligations set forth in this Exhibit A. Accordingly, Employee agrees that if Employee breaches any such covenants and\nobligations, the Company or its subsidiaries may, in addition to any other right or remedy available, obtain an injunction from a\ncourt of competent jurisdiction restraining such breach or threatened breach and to specific performance of any such provision of\nthis Exhibit A. Employee further agrees that no bond or other security shall be required in obtaining such equitable relief and\nEmployee hereby consents to the issuance of such injunction and to the ordering of specific performance.	EX-10.29 4 cxw-ex1029_421.htm EX-10.29\nExhibit 10.29\n[CoreCivic Letterhead]\nDecember 31, 2017\nHarley G. Lappin\nCoreCivic, Inc.\n10 Burton Hills Boulevard\nNashville, TN 37215\nRe: Non-Competition, Non-Solicitation and Confidentiality and Non-Disclosure during your “at-will”\nemployment with CoreCivic of Tennessee, LL.C ("Employer")\nMr. Lappin:\nAs we've discussed, you previously notified CoreCivic, Inc. ("CoreCivic" and, collectively with Employer, the\n"Company") of your intention to retire from your position as Executive Vice President and Chief Corrections Officer effective\nJanuary 1, 2018. Your Employment Agreement with the Company expires effective December 31, 2017. However,\nnotwithstanding the expiration of your Employment Agreement, the Company desires that you continue your employment with\nEmployer as an "at will" employee on terms and conditions established from time to time by the Employer.\nThis letter is to clarify and confirm that, in consideration of Employer continuing your employment on an "at will” basis\nwith an annual salary of $175,000.00, which shall be payable in accordance with Employer’s normal payroll practices, you agree to\nbe bound by and to comply with the provisions regarding non-competition, non-solicitation and confidentiality and non-disclosure\nset forth on Exhibit A accompanying this letter.\nPlease confirm your acknowledgement of and agreement with the foregoing by reviewing and signing this letter in the\nspace provided below.\nVery truly yours,\nCORECIVIC, INC.\nBy: /s/ Damon T. Hininger\nDamon T. Hininger\nPresident and Chief Executive Officer\nConfirmed and Agreed as\nof the date written above:\n/s/ Harley G. Lappin\nHarley G. Lappin\nExhibit A\nNon-Competition, Non-Solicitation and Confidentiality and Non-Disclosure\n \n1. Business Considerations. All confidential or proprietary information, including but not limited to, any programs, plans or\ndesigns whether in hard copy or electronic format developed by, at the direction of, or with the assistance and/or collaboration of\nHarley G. Lappin ("Employee") during his employment with CoreCivic of Tennessee, LLC (together with its parent, subsidiaries\nand affiliates, the "Company"), contract terms, financial information, operating data, staffing patterns, wage levels, quality\nassurance audit materials and techniques, customer lists, supplier lists, pricing policies, marketing plans, business plans or models,\nmarketing or lobbying information and all other information (the “Confidential & Proprietary Information”), and all other tangible\nor intangible items or ideas making up the Confidential & Proprietary Information owned or developed by or related to the\nCompany, and the goodwill associated with them, which (i) is or was obtained or created by Employee in whole or in part as a result\nof his employment with the Company, and (ii) is not generally available to the public, shall remain the sole and exclusive property\nof the Company.\n2. Non-Competition, Non-Solicitation. Employee hereby covenants and agrees that during the term of Employee’s\nemployment with the Company and for a period of one (1) year thereafter, Employee shall not, directly or indirectly: (i) own any\ninterest in, operate, join, control or participate as a partner, director, principal, officer or agent of, enter into the employment of, act\nas a consultant to, or perform any services for any entity (each a “Competing Entity””) which has material operations which compete\nwith any business in which the Company or any of its subsidiaries is then engaged or, to the then existing knowledge of Employee,\nproposes to engage; (ii) solicit any customer or client of the Company or any of its subsidiaries, affiliates, (other than on behalf of\nthe Company) with respect to any business in which the Company or any of its subsidiaries or affiliates is then engaged or, to the\nthen existing knowledge of Employee, proposes to engage; or (iii) induce or encourage any employee of the Company or any of its\nsubsidiaries to leave the employ of the Company or any of its subsidiaries; provided, that Employee may, solely as an investment,\nhold not more than five percent (5%) of the combined voting securities of any publicly-traded corporation or other business entity.\nThe foregoing covenants and agreements of Employee are referred to herein as the “Restrictive Covenant.” Employee\nacknowledges that Employee has carefully read and considered the provisions of the Restrictive Covenant and, having done so,\nagrees that the restrictions set forth herein , including without limitation the time period of restriction set forth above, are fair and\nreasonable and are reasonably required for the protection of the legitimate business and economic interests of the Company.\nEmployee further acknowledges that the Company would not have continued Employee's employment with the Company on an "at\nwill" basis absent Employee’s agreement to the foregoing. In the event that, notwithstanding the foregoing, any of the provisions of\nthis Exhibit A or any parts hereof shall be held to be invalid or unenforceable, the remaining provisions or parts hereof shall\nnevertheless continue to be valid and enforceable as though the invalid or unenforceable portions or parts had not been included\nherein. In the event that any provision of this Exhibit A relating to the time period and/or the area of restriction, if any, and/or\nrelated aspects shall be declared by a court of competent jurisdiction to exceed the maximum restrictiveness such court deems\nreasonable and enforceable, the time period and/or area of restriction and/or related aspects deemed reasonable and enforceable by\nsuch court shall become and thereafter be the maximum restrictions in such regard, and the provisions of the Restrictive Covenant\nshall remain enforceable to the fullest extent deemed reasonable by such court.\n3. Confidentiality and Non-Disclosure. In consideration of the continuation of Employee's employment with the Company\non an "at will" basis, Employee agrees that during the term of employment with the Company and thereafter to hold in confidence\nthe Company's Confidential and Proprietary Information, whether communicated orally or in documentary or other tangible form.\nEmployee recognizes that the Company has invested considerable amounts of time and money in attaining and developing all of the\ninformation described above, and any unauthorized disclosure or release of such Confidential and Proprietary Information in any\nform would irreparably harm the Company. Notwithstanding the foregoing, nothing in this Exhibit A limits rights of Employee to\nfile a charge or complaint with or from participating in an investigation or proceeding conducted by the Equal Employment\nOpportunity Commission, National Labor Relations Board, Occupational Safety and Health Administration, the Securities and\nExchange Commission, or any other any federal, state or local agency charged with the enforcement of any laws, including\nproviding documents or any other information.\n4. Equitable Relief. Employee agrees that it would be impossible to adequately compensate the Company and its\nsubsidiaries for the damage suffered by the Company or its subsidiaries as a result of Employee’s breach of any of the covenants\nand obligations set forth in this Exhibit A. Accordingly, Employee agrees that if Employee breaches any such covenants and\nobligations, the Company or its subsidiaries may, in addition to any other right or remedy available, obtain an injunction from a\ncourt of competent jurisdiction restraining such breach or threatened breach and to specific performance of any such provision of\nthis Exhibit A. Employee further agrees that no bond or other security shall be required in obtaining such equitable relief and\nEmployee hereby consents to the issuance of such injunction and to the ordering of specific performance.	EX-10.29 4 cxW-ex1029_421.htm EX-10.29\nExhibit 10.29\n[CoreCivic Letterhead]\nDecember 31, 2017\nHarley G. Lappin\nCoreCivic, Inc.\n10 Burton Hills Boulevard\nNashville, TN 37215\nRe:\nNon-Competition, Non-Solicitation and Confidentiality and Non-Disclosure during your "at-will"\nemployment with CoreCivic of Tennessee, LLC ("Employer")\nMr. Lappin:\nAs we've discussed, you previously notified CoreCivic, Inc. ("CoreCivic" and, collectively with Employer, the\n"Company") of your intention to retire from your position as Executive Vice President and Chief Corrections Officer effective\nJanuary 1, 2018. Your Employment Agreement with the Company expires effective December 31, 2017. However,\nnotwithstanding the expiration of your Employment Agreement, the Company desires that you continue your employment with\nEmployer as an "at will" employee on terms and conditions established from time to time by the Employer.\nThis letter is to clarify and confirm that, in consideration of Employer continuing your employment on an "at will" basis\nwith an annual salary of $175,000.00, which shall be payable in accordance with Employer's normal payroll practices, you agree to\nbe bound by and to comply with the provisions regarding non-competition, non-solicitation and confidentiality and non-disclosure\nset forth on Exhibit A accompanying this letter.\nPlease confirm your acknowledgement of and agreement with the foregoing by reviewing and signing this letter in the\nspace provided below.\nVery truly yours,\nCORECIVIC, INC.\nBy: /s/ Damon T. Hininger\nDamon T. Hininger\nPresident and Chief Executive Officer\nConfirmed and Agreed as\nof the date written above:\n/s/ Harley G. Lappin\nHarley G. Lappin\nExhibit A\nNon-Competition, Non-Solicitation and Confidentiality. and Non-Disclosure\n1.\nBusiness Considerations. All confidentia or proprietary information, including but not limited to, any programs, plans or\ndesigns whether in hard copy or electronic format developed by, at the direction of, or with the assistance and/or collaboration of\nHarley G. Lappin ("Employee") during his employment with CoreCivic of Tennessee, LLC (together with its parent, subsidiaries\nand affiliates, the "Company"), contract terms, financial information, operating data, staffing patterns, wage levels, quality\nassurance audit materials and techniques, customer lists, supplier lists, pricing policies, marketing plans, business plans or models,\nmarketing or lobbying information and all other information (the "Confidential & Proprietary Information"), and all other tangible\nor intangible items or ideas making up the Confidential & Proprietary Information owned or developed by or related to the\nCompany, and the goodwill associated with them, which (i) is or was obtained or created by Employee in whole or in part as a result\nof his employment with the Company, and (ii) is not generally available to the public, shall remain the sole and exclusive property\nof the Company.\n2.\nNon-Competition, Non-Solicitation. Employee hereby covenants and agrees that during the term of Employee's\nemployment with the Company and for a period of one (1) year thereafter, Employee shall not, directly or indirectly: (i) own any\ninterest in, operate, join, control or participate as a partner, director, principal, officer or agent of, enter into the employment of,\nact\nas a consultant to, or perform any services for any entity (each a "Competing. Entity.") which has material operations which compete\nwith\nany\nbusiness\nin\nwhich\nthe\nCompany\nor\nany\nof\nits\nsubsidiaries\nis\nthen\nengaged\nor,\nto\nthe\nthen\nexisting\nknowledge\nof\nEmployee,\nproposes to engage; (ii) solicit any customer or client of the Company or any of its subsidiaries, affiliates, (other than on behalf of\nthe Company) with respect to any business in which the Company or any of its subsidiaries or affiliates is then engaged or, to the\nthen\nexisting\nknowledge\nof\nEmployee,\nproposes\nto\nengage;\nor\n(iii)\ninduce\nor\nencourage\nany\nemployee\nof\nthe\nCompany\nor\nany\nof\nits\nsubsidiaries to leave the employ of the Company or any of its subsidiaries; provided, that Employee may, solely as an investment,\nhold not more than five percent (5%) of the combined voting securities of any publicly-traded corporation or other business entity.\nThe foregoing covenants and agreements of Employee are referred to herein as the "Restrictive Covenant." Employee\nacknowledges that Employee has carefully read and considered the provisions of the Restrictive Covenant and, having done so,\nagrees that the restrictions set forth herein including without limitation the time period of restriction set forth above, are fair and\nreasonable and are reasonably required for the protection of the legitimate business and economic interests of the Company.\nEmployee further acknowledges that the Company would not have continued Employee's employment with the Company on an "at\nwill" basis absent Employee's agreement to the foregoing. In the event that, notwithstanding the foregoing, any of the provisions of\nthis Exhibit A or any parts hereof shall be held to be invalid or unenforceable, the remaining provisions or parts hereof shall\nnevertheless continue to be valid and enforceable as though the invalid or unenforceable portions or parts had not been included\nherein. In the event that any provision of this Exhibit A relating to the time period and/or the area of restriction, if any, and/or\nrelated aspects shall be declared by a court of competent jurisdiction to exceed the maximum restrictiveness such court deems\nreasonable and enforceable, the time period and/or area of restriction and/or related aspects deemed reasonable and enforceable\nby\nsuch court shall become and thereafter be the maximum restrictions in such regard, and the provisions of the Restrictive Covenant\nshall remain enforceable to the fullest extent deemed reasonable by such court.\n3.\nConfidentiality and Non-Disclosure. In consideration of the continuation of Employee's employment with the Company\non\nan "at will" basis, Employee agrees that during the term of employment with the Company and thereafter to hold in confidence\nthe Company's Confidential and Proprietary Information, whether communicated orally or in documentary or other tangible form.\nEmployee recognizes that the Company has invested considerable amounts of time and money in attaining and developing all of the\ninformation described above, and any unauthorized disclosure or release of such Confidential and Proprietary Information in any\nform would irreparably harm the Company. Notwithstanding the foregoing, nothing in this Exhibit A limits rights of Employee\nto\nfile a charge or complaint with or from participating in an investigation or proceeding conducted by the Equal Employment\nOpportunity Commission, National Labor Relations Board, Occupational Safety and Health Administration, the Securities and\nExchange Commission, or any other any federal, state or local agency charged with the enforcement of any laws, including\nproviding documents or any other information.\n4.\nEquitable Relief. Employee agrees that it would be impossible to adequately compensate the Company and\nits\nsubsidiaries for the damage suffered by the Company or its subsidiaries as a result of Employee's breach of any of the covenants\nand obligations set forth in this Exhibit A. Accordingly, Employee agrees that if Employee breaches any such covenants and\nobligations, the Company or its subsidiaries may, in addition to any other right or remedy available, obtain an injunction from a\ncourt of competent jurisdiction restraining such breach or threatened breach and to specific performance of any such provision of\nthis Exhibit A. Employee further agrees that no bond or other security shall be required in obtaining such equitable relief and\nEmployee hereby consents to the issuance of such injunction and to the ordering of specific performance.	EX-10.29 4 cxw-ex1029_421.htm EX-10.29\nExhibit 10.29\n[CoreCivic Letterhead]\nDecember 31, 2017\nHarley G. Lappin\nCoreCivic, Inc.\n10 Burton Hills Boulevard\nNashville, TN 37215\nRe:\nNon-Competition, Non-Solicitation and Confidentiality and Non-Disclosure during your “at-will”\nemployment with CoreCivic of Tennessee, LLC ("Employer")\nMr. Lappin:\nAs we've discussed, you previously notified CoreCivic, Inc. ("CoreCivic" and, collectively with Employer, the\n"Company") of your intention to retire from your position as Executive Vice President and Chief Corrections Officer effective\nJanuary 1, 2018. Your Employment Agreement with the Company expires effective December 31, 2017. However,\nnotwithstanding the expiration of your Employment Agreement, the Company desires that you continue your employment with\nEmployer as an "at will" employee on terms and conditions established from time to time by the Employer.\nThis letter is to clarify and confirm that, in consideration of Employer continuing your employment on an "at will” basis\nwith an annual salary of $175,000.00, which shall be payable in accordance with Employer’s normal payroll practices, you agree to\nbe bound by and to comply with the provisions regarding non-competition, non-solicitation and confidentiality and non-disclosure\nset forth on Exhibit A accompanying this letter.\nPlease confirm your acknowledgement of and agreement with the foregoing by reviewing and signing this letter in the\nspace provided below.\nVery truly yours,\nCORECIVIC, INC.\nBy: /s/ Damon T. Hininger\nDamon T. Hininger\nPresident and Chief Executive Officer\nConfirmed and Agreed as\nof the date written above:\n/s/ Harley G. Lappin\nHarley G. Lappin\nExhibit A\nNon-Competition, Non-Solicitation and Confidentiality and Non-Disclosure\n1.\nBusiness Considerations. All confidential or proprietary information, including but not limited to, any programs, plans or\ndesigns whether in hard copy or electronic format developed by, at the direction of, or with the assistance and/or collaboration of\nHarley G. Lappin ("Employee") during his employment with CoreCivic of Tennessee, LLC (together with its parent, subsidiaries\nand affiliates, the "Company"), contract terms, financial information, operating data, staffing patterns, wage levels, quality\nassurance audit materials and techniques, customer lists, supplier lists, pricing policies, marketing plans, business plans or models,\nmarketing or lobbying information and all other information (the “Confidential & Proprietary Information”), and all other tangible\nor intangible items or ideas making up the Confidential & Proprietary Information owned or developed by or related to the\nCompany, and the goodwill associated with them, which (i) is or was obtained or created by Employee in whole or in part as a result\nof his employment with the Company, and (ii) is not generally available to the public, shall remain the sole and exclusive property\nof the Company.\n2.\nNon-Competition, Non-Solicitation. Employee hereby covenants and agrees that during the term of Employee’s\nemployment with the Company and for a period of one (1) year thereafter, Employee shall not, directly or indirectly: (i) own any\ninterest in, operate, join, control or participate as a partner, director, principal, officer or agent of, enter into the employment of, act\nas a consultant to, or perform any services for any entity (each a “Competing Entity”) which has material operations which compete\nwith any business in which the Company or any of its subsidiaries is then engaged or, to the then existing knowledge of Employee,\nproposes to engage; (ii) solicit any customer or client of the Company or any of its subsidiaries, affiliates, (other than on behalf of\nthe Company) with respect to any business in which the Company or any of its subsidiaries or affiliates is then engaged or, to the\nthen existing knowledge of Employee, proposes to engage; or (iii) induce or encourage any employee of the Company or any of its\nsubsidiaries to leave the employ of the Company or any of its subsidiaries; provided, that Employee may, solely as an investment,\nhold not more than five percent (5%) of the combined voting securities of any publicly-traded corporation or other business entity.\nThe foregoing covenants and agreements of Employee are referred to herein as the “Restrictive Covenant.” Employee\nacknowledges that Employee has carefully read and considered the provisions of the Restrictive Covenant and, having done so,\nagrees that the restrictions set forth herein , including without limitation the time period of restriction set forth above, are fair and\nreasonable and are reasonably required for the protection of the legitimate business and economic interests of the Company.\nEmployee further acknowledges that the Company would not have continued Employee's employment with the Company on an "at\nwill" basis absent Employee’s agreement to the foregoing. In the event that, notwithstanding the foregoing, any of the provisions of\nthis Exhibit A or any parts hereof shall be held to be invalid or unenforceable, the remaining provisions or parts hereof shall\nnevertheless continue to be valid and enforceable as though the invalid or unenforceable portions or parts had not been included\nherein. In the event that any provision of this Exhibit A relating to the time period and/or the area of restriction, if any, and/or\nrelated aspects shall be declared by a court of competent jurisdiction to exceed the maximum restrictiveness such court deems\nreasonable and enforceable, the time period and/or area of restriction and/or related aspects deemed reasonable and enforceable by\nsuch court shall become and thereafter be the maximum restrictions in such regard, and the provisions of the Restrictive Covenant\nshall remain enforceable to the fullest extent deemed reasonable by such court.\n3.\nConfidentiality and Non-Disclosure. In consideration of the continuation of Employee's employment with the Company\non an "at will" basis, Employee agrees that during the term of employment with the Company and thereafter to hold in confidence\nthe Company's Confidential and Proprietary Information, whether communicated orally or in documentary or other tangible form.\nEmployee recognizes that the Company has invested considerable amounts of time and money in attaining and developing all of the\ninformation described above, and any unauthorized disclosure or release of such Confidential and Proprietary Information in any\nform would irreparably harm the Company. Notwithstanding the foregoing, nothing in this Exhibit A limits rights of Employee to\nfile a charge or complaint with or from participating in an investigation or proceeding conducted by the Equal Employment\nOpportunity Commission, National Labor Relations Board, Occupational Safety and Health Administration, the Securities and\nExchange Commission, or any other any federal, state or local agency charged with the enforcement of any laws, including\nproviding documents or any other information.\n4.\nEquitable Relief. Employee agrees that it would be impossible to adequately compensate the Company and its\nsubsidiaries for the damage suffered by the Company or its subsidiaries as a result of Employee’s breach of any of the covenants\nand obligations set forth in this Exhibit A. Accordingly, Employee agrees that if Employee breaches any such covenants and\nobligations, the Company or its subsidiaries may, in addition to any other right or remedy available, obtain an injunction from a\ncourt of competent jurisdiction restraining such breach or threatened breach and to specific performance of any such provision of\nthis Exhibit A. Employee further agrees that no bond or other security shall be required in obtaining such equitable relief and\nEmployee hereby consents to the issuance of such injunction and to the ordering of specific performance.
b912f78ad89e18faf671787773efc271.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of February 16, 2009 (the “Effective Date”), between\nCHORDIANT SOFTWARE, INC. (“Chordiant”) and PEGASYSTEMS INC. (“Pegasystems”).\nIn order to facilitate the consideration and negotiation of a possible transaction involving Chordiant and Pegasystems (referred to collectively\nas the “Parties” and individually as a “Party”), each Party has requested access to certain non-public information regarding the other Party and the\nother Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each Party,\nin its capacity as a recipient of information, is referred to in this Agreement as the “Recipient.”) This Agreement sets forth the Parties’ obligations\nregarding the use and disclosure of such information and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Subject to section 4 below, neither the Recipient nor any of the\nRecipient’s Representatives (as defined in section 13 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information (as defined in section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a possible transaction between the Parties; or\n(b) disclose any of the Provider’s Confidential Information to any other Person (as defined in section 13 below).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives (it being understood that any action or\nomission on the part of any Representative of the Recipient shall be deemed to constitute a breach or violation of this Agreement if such action or\nomission would constitute a breach or violation of this Agreement if taken or omitted by the Recipient). The Recipient will (at its own expense) take\nall commercially reasonable actions necessary to ensure that its Representatives not make any unauthorized use or disclosure of any of the Provider’s\nConfidential Information.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential\nInformation must be directed to any of the individuals identified opposite the name of the Provider on Exhibit A (the “Provider Contact Person”).\nNeither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the\nProvider with respect to the possible transaction that is the subject matter of this Agreement or any related matters without the prior written\nauthorization of one of the Provider Contact Persons. Nothing in this Section 2 shall prohibit any communications by the Recipient to the Provider’s\nboard of directors.\n3. No Representations by Provider. The Provider Contact Person will have the exclusive authority to decide what Confidential Information\n(if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of the Provider’s\nRepresentatives will be under any obligation to make any particular Confidential Information of the Provider available to the Recipient or any of the\nRecipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished. Neither the Provider nor\nany of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of the\nProvider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the Recipient or to any of the\nRecipient’s Representatives relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors\ntherein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that\nprovides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties (a “Definitive\nAgreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to\nthe Recipient’s disclosure thereof;\n(ii) subject to section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the\nRecipient, but only to the extent such Representative (A) reasonably needs to know such Confidential Information for the purpose of\nhelping the Recipient consider, evaluate or negotiate a possible transaction between the Parties, and (B) has been provided with a copy of\nthis Agreement, has been instructed to abide by the provisions hereof and is under an obligation to maintain the confidentiality of such\nConfidential Information; and\n(iii) subject to section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed\nonly to specified Representatives of the Recipient, then, notwithstanding anything to the contrary contained in section 4(a)(ii) above, the\nRecipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the\nRecipient.\n(c) Notwithstanding the limitations set forth in section 1 above, if the Recipient or any of the Recipient’s Representatives is required by\nlaw or governmental or other regulation or by subpoena or other valid legal process to disclose any of the Provider’s Confidential Information\nto any Person, then the Recipient will immediately provide the Provider with written notice of the applicable law, regulation or process so that\nthe Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate fully with the\nProvider and the Provider’s Representatives in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider\nelects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the\nRecipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidential Information to the extent\nlegally required; provided, however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such Confidential\nInformation is treated confidentially by each Person to whom it is disclosed.\n5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver\nto the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the\nRecipient’s Representatives; provided, however, that, in lieu of delivering to the Provider any such Confidential Information, the Recipient may\ndestroy such Confidential Information and deliver to the Provider a certificate confirming its destruction; provided, further, that outside counsel to\nthe Recipient may retain one copy of such Confidential Information to show compliance with this Agreement or to comply with applicable law, rule\nor regulation. Notwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant\nto this section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement.\n6. Limitation on Soliciting Employees. During the one-year period commencing on the Effective Date, neither Party nor any of such Party’s\nRepresentatives will directly or indirectly solicit for employment or knowingly induce or encourage (in each case, other than by means of a general\nsolicitation pursuant to a newspaper or other media advertisement or other customary means by such party in the ordinary course of its business) any\nCovered Person (as defined herein) to terminate his or her relationship with the other Party or any subsidiary or other affiliate of the other Party in\norder to become an employee, consultant or independent contractor of or to any other Person. For purposes of this letter agreement, “Covered\nPerson” shall mean any Person who is an employee of the other Party or any subsidiary or other affiliate of the other Party as of the\n2\nEffective Date or who becomes an employee of the other Party or of any subsidiary or other affiliate of the other Party before the termination of\ndiscussions regarding a possible transaction involving the Parties, in each case, who is either (x) involved in the discussions regarding the possible\ntransaction that is the subject matter of this Agreement or (y) a key employee of the Provider which will be defined as being a vice president level\nemployee or above.\n7. Standstill Provision. During the one-year period commencing on the Effective Date (the “Standstill Period”), neither Pegasystems nor any\nof Pegasystems’ Representatives will, in any manner, directly or indirectly:\n(a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) any acquisition of beneficial ownership of any\nsecurities of Chordiant or any securities of any subsidiary or other affiliate of Chordiant, (ii) any acquisition of any assets of Chordiant or any\nassets of any subsidiary or other affiliate of Chordiant, (iii) any tender offer, exchange offer, merger, business combination, recapitalization,\nrestructuring, liquidation, dissolution or extraordinary transaction involving Chordiant or any subsidiary or other affiliate of Chordiant, or\ninvolving any securities or assets of Chordiant or any securities or assets of any subsidiary or other affiliate of Chordiant, or (iv) any\n“solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to\nany securities of Chordiant; provided that, the foregoing restrictions shall not prohibit the Company in any way from making non-public offers\nor non-public proposals addressed to the board of directors of Chordiant;\n(b) form or join a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the\nbeneficial ownership of any securities of Chordiant;\n(c) act, alone or in concert with others, to seek to control the management, board of directors or policies of Chordiant;\n(d) take any action that would reasonably be likely to require Chordiant to make a public announcement regarding any of the types of\nmatters set forth in clause “(a)” of this sentence; or\n(e) enter into any arrangement or agreement with any other Person relating to any of the foregoing.\nNotwithstanding the foregoing, if (A) at any time during the Standstill Period a binding definitive acquisition agreement is executed by Chordiant\nand a third party (other than Pegasystems or any affiliate of Pegasystems) to effect (i) a merger, recapitalization or other business combination or\ntransaction that, if consummated, would result in the holders of the outstanding shares of common stock of Pegasystems immediately prior to such\nmerger or other business combination or transaction owning less than 50% of the outstanding voting power of such third party or the resulting entity\nimmediately following such merger or other business combination or transaction, or (ii) a sale of all or substantially all of the assets of Chordiant and\nits subsidiaries taken as a whole (each such transaction, a “Change of Control Transaction”), or (B) at any time during the Standstill Period (1) an\noffer for a Change of Control Transaction that specifies a per share price is publicly announced by a third party, (2) Pegasystems requests an\nopportunity to meet with the board of directors of Chordiant, and (3) Chordiant does not grant such request within seven days following the date\nthereof or thereafter continue such discussions in good faith, then the restrictions set forth in this section 7 shall immediately terminate and cease to\nbe of any further force or effect (it being understood that any good faith rejection by Chordiant of any offer or proposal made by Pegasystems as part\nof such discussions shall not cause the restrictions set forth in this section 7 to terminate). The expiration of the Standstill Period or the termination\nof the restrictions set forth in this section 7 will not terminate or otherwise affect any of the other provisions of this Agreement. Chordiant hereby\nrepresents and warrants to Pegasystems that, during the 12-month period prior to the date of this Agreement, Chordiant has not entered into any\nconfidentiality agreement in connection with a Change of Control Transaction that does not a include a standstill provision.\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with\n3\nthe other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems appropriate with respect to any transaction or\nproposed transaction involving such Party and to modify any procedures relating to any such process without giving notice to the other Party or any\nother Person; (b) to reject any proposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving\nsuch Party; and (c) to terminate discussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly\nprovided in any binding written agreement between the Parties that is executed on or after the Effective Date: (i) the other Party and its\nRepresentatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will\nnot have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or\nproposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended\nexcept by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision\nor provisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such\nParty or by any of such Party’s Representatives and that the other Party is likely to suffer irreparable harm as a result of any such breach.\nAccordingly, each Party will be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or\nthreatened breach of this Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above will not\nbe deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in\nequity to the Parties. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its\nRepresentatives has breached this Agreement, such Party will be liable for, and will pay to the other Party and the other Party’s Representatives, the\nreasonable legal fees incurred by the other Party and the other Party’s Representatives in connection with such litigation (including any appeal\nrelating thereto).\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or\nproceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or\nproceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and\nunconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or\nproceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought\nin an inconvenient forum.\n12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only\nthe following:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast\nor projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the\nProvider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has been made available\n4\nto the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider, regardless of the\nmanner in which it was made available;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient to the extent that it contains, reflects, interprets or is based\ndirectly or indirectly upon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms, conditions or other facts with respect to any such transaction, including the status thereof.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives in breach or in violation of this Agreement;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the\nRecipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such\ninformation was not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the\nProvider or to any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) is independently developed by the Recipient without use of or reference to any of the Provider’s Confidential Information.\n13. Miscellaneous; Termination.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a\nsubsidiary or other controlled affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or\nrepresentative of such Party or of any of such Party’s subsidiaries or other controlled affiliates.\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in\nany other situation or in any other jurisdiction.\n(e) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is\nnot, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right.\n5\n(f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending,\nthreatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a\ncommonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that\nit is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall\nnot, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such\nmaterials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly,\nall Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege\nor doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties\nagree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n(g) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(h) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission\nor by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.\n(i) This Agreement shall terminate on the second anniversary of the Effective Date; provided, however, that (i) the restrictions and\ncovenants set forth in this Agreement relating to Confidential Information consisting of or relating to trade secrets, intellectual property,\nintellectual property rights and/or technical information shall terminate on the fifth anniversary of the Effective Date; and (ii) the termination\nof this Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision contained in this\nAgreement.\n[Remainder of page intentionally left blank]\n6\nThe parties have caused this Agreement to be executed as of the Effective Date.\nCHORDIANT SOFTWARE, INC.\nPEGASYSTEMS INC.\nBy: /s/ Steven R. Springsteel\nBy: /s/ Alan Trefler\nName: Steven R. Springsteel\nName: Alan Trefler\nTitle: Chairman, President and CEO\nTitle: Chief Executive Officer\nSignature Page to Confidentiality Agreement\nAMENDMENT TO CONFIDENTIALITY AGREEMENT\nThis Amendment to Confidentiality Agreement (this “Amendment”) is entered into as of March 16, 2009, between Chordiant Software, Inc., a\nDelaware corporation (“Chordiant”), and Pegasystems Inc., a Delaware corporation (“Pegasystems”).\nRecitals\nA. Chordiant and Pegasystems are parties to a Confidentiality Agreement dated as of February 16, 2009 (the “Confidentiality Agreement”).\nCapitalized terms not otherwise defined in this Amendment will have the meanings given to such terms in the Confidentiality Agreement.\nB. The parties desire to amend the Confidentiality Agreement as set forth herein.\nAgreement\nThe parties to this Amendment, intending to be legally bound, agree as follows:\n1. The Confidentiality Agreement is hereby amended by adding a new Section 14 and a new Section 15, which will read in their entirety as follows:\n“14. Disclosure Procedures for Highly Confidential Financial Information.\n(a) Notwithstanding anything in this Agreement to the contrary, the parties agree that the only individuals representing Pegasystems who\nwill be granted access to Highly Confidential Financial Information (as defined below) are those representatives of Ernst & Young listed on\nExhibit A hereto (the “Financial Clean Team”). For purposes of this Agreement, “Highly Confidential Financial Information” means\nChordiant’s PBC reports, the audit work papers relating to the Company prepared by BDO Seidman, LLP, Chordiant’s independent auditors,\nand any other Confidential Information identified by Chordiant in writing (prior to disclosure to Pegasystems or its representatives) to be of\nthis level of sensitivity, except to the extent of data previously provided through the data room.\n(b) Pegasystems hereby agrees to cause the individuals on the Financial Clean Team not to disclose, prior to the consummation of the\nproposed acquisition of Chordiant by Pegasystems, any of the Highly Confidential Financial Information to any employees, officers, directors,\nor representatives of Pegasystems, or to any other individuals who are not on the Financial Clean Team, except that they may disclose this\ninformation in written summaries, so long as these written summaries do not provide pricing terms, customer-specific information, or provide\nthe means of determining the identity of specific customers, to members of the Pegasystems due diligence team determined by the Financial\nClean Team to have a good faith “need to know” basis for the information at the level of detail these summaries provide. Subsequent to signing\na definitive agreement but prior to consummating the transaction, Pegasystems may request that individuals not listed on Exhibit A or Exhibit\nB have access to specified Highly Confidential Financial Information for integration planning purposes, with access subject to the prior written\napproval of Chordiant.\n15. Disclosure Procedures for Other Highly Confidential Information.\n(a) Notwithstanding anything in this Agreement to the contrary, the parties agree that the only individuals representing Pegasystems who\nwill be granted access to Other Highly Confidential Information (as defined below) are those individuals listed on Exhibit B hereto (the “Non-\nFinancial Clean Team”). For purposes of this Agreement, “Other Highly Confidential Information” means any Chordiant customer, OEM or\npartner agreement, and any other Confidential Information identified by Chordiant in writing (prior to disclosure to Pegasystems or its\nrepresentatives) to be of this level of sensitivity, except to the extent previously provided through the data room.\n(b) Pegasystems hereby agrees to cause the individuals on the Non-Financial Clean Team not to disclose, prior to the consummation of\nthe proposed acquisition of Chordiant by Pegasystems, any of the Other Highly Confidential Information to any employees, officers, directors,\nor representatives of Pegasystems, or to any other individuals who are not on the Non-Financial Clean Team, except that they may disclose this\ninformation in written summaries, so long as these written summaries do not provide pricing terms, customer-specific information, or provide\nthe means of determining the identity of specific customers, to members of the Pegasystems due diligence team determined by the Financial\nClean Team to have a good faith “need to know” basis for the information at the level of detail these summaries provide, and Chordiant has\nprovided written approval of the disclosure of these summaries to them after first having received the names and titles of individuals to whom\nPegasystems wants to share this information (and a brief description of which summaries it seeks to share with which individuals) and these\nrecipients are not permitted to share the summaries or any of their contents with any other individuals without Chordiant’s prior written\nauthorization. Subsequent to signing a definitive agreement but prior to consummating the transaction, Pegasystems may request that\nindividuals not listed on Exhibit A or Exhibit B have access to specified Other Highly Confidential Information for integration planning\npurposes, with access subject to the prior written approval of Chordiant.”\n2. Except as it has been specifically amended pursuant to Section 1 of this Amendment, the Confidentiality Agreement will continue in full force and\neffect.\n3. This Amendment may be executed in counterparts, each of which will constitute an original and all of which, when taken together, will constitute\none agreement.\nThe parties to this Amendment have caused this Amendment to be executed and delivered as of the date first set forth above.\nCHORDIANT SOFTWARE, INC.\nBy: /s/ David Zuckerman\nName: David Zuckerman\nTitle: VP, General Counsel and Secretary\nPEGASYSTEMS INC.\nBy: /s/ Shawn Hoyt\nName: Shawn Hoyt\nTitle: General Counsel and Secretary\n2\nAMENDMENT TO CONFIDENTIALITY AGREEMENT\nThis AMENDMENT TO CONFIDENTIALITY AGREEMENT (“Amendment”) is being entered into as of March 2, 2010 between\nCHORDIANT SOFTWARE, INC. (“Chordiant”) and PEGASYSTEMS INC. (“Pegasystems”).\nWHEREAS, Chordiant and Pegasystems previously entered into a Confidentiality Agreement dated as of February 16, 2009 (the\n“Confidentiality Agreement”), which Confidentiality Agreement remains in effect; and\nWHEREAS, Chordiant and Pegasystems desire to delete Sections 6, 7 and 13(i) of the Confidentiality Agreement and replace them with new\nprovisions which extend the term of those sections;\nNOW THEREFORE, BE IT RESOLVED, that the Parties, intending to be legally bound, acknowledge and agree as follows:\n14. Limitation on Soliciting Employees. Section 6 of the Confidentiality Agreement is hereby deleted in its entirety and replaced with the\nfollowing:\n6. Limitation on Soliciting Employees. During the 18-month period commencing on the Effective Date, neither Party nor any of such Party’s\nRepresentatives will directly or indirectly solicit for employment or knowingly induce or encourage (in each case, other than by means of a\ngeneral solicitation pursuant to a newspaper or other media advertisement or other customary means by such party in the ordinary course of its\nbusiness) any Covered Person (as defined herein) to terminate his or her relationship with the other Party or any subsidiary or other affiliate of\nthe other Party in order to become an employee, consultant or independent contractor of or to any other Person. For purposes of this letter\nagreement, “Covered Person” shall mean any Person who is an employee of the other Party or any subsidiary or other affiliate of the other\nParty as of the Effective Date or who becomes an employee of the other Party or of any subsidiary or other affiliate of the other Party before\nthe termination of discussions regarding a possible transaction involving the Parties, in each case, who is either (x) involved in the discussions\nregarding the possible transaction that is the subject matter of this Agreement or (y) a key employee of the Provider which will be defined as\nbeing a vice president level employee or above.\n2. Standstill Provision. Section 7 of the Confidentiality Agreement is hereby deleted in its entirety and replaced with the following:\n7. Standstill Provision. During the 18-month period commencing on the Effective Date (the “Standstill Period”), neither Pegasystems nor\nany of Pegasystems’ Representatives will, in any manner, directly or indirectly:\n(a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) any acquisition of beneficial ownership of any\nsecurities of Chordiant or any securities of any subsidiary or other affiliate of Chordiant, (ii) any acquisition of any assets of Chordiant or any\nassets of any subsidiary or other affiliate of Chordiant, (iii) any tender offer, exchange offer, merger, business combination, recapitalization,\nrestructuring, liquidation, dissolution or extraordinary transaction involving Chordiant or any subsidiary or other affiliate of Chordiant, or\ninvolving any securities or assets of Chordiant or any securities or assets of any subsidiary or other affiliate of Chordiant, or (iv) any\n“solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to\nany securities of Chordiant; provided that, the foregoing restrictions shall not prohibit Pegasystems in any way from making non-public offers\nor non-public proposals addressed to the board of directors of Chordiant;\n(b) form or join a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the\nbeneficial ownership of any securities of Chordiant;\n(c) act, alone or in concert with others, to seek to control the management, board of directors or policies of Chordiant;\n(d) take any action that would reasonably be likely to require Chordiant to make a public announcement regarding any of the types of\nmatters set forth in clause “(a)” of this sentence; or\n(e) enter into any arrangement or agreement with any other Person relating to any of the foregoing.\nNotwithstanding the foregoing, if (A) at any time during the Standstill Period a binding definitive acquisition agreement is executed by\nChordiant and a third party (other than Pegasystems or any affiliate of Pegasystems) to effect (i) a merger, recapitalization or other business\ncombination or transaction that, if consummated, would result in the holders of the outstanding shares of common stock of Chordiant\nimmediately prior to such merger or other business combination or transaction owning less than 50% of the outstanding voting power of such\nthird party or the resulting entity immediately following such merger or other business combination or transaction, or (ii) a sale of all or\nsubstantially all of the assets of Chordiant and its subsidiaries taken as a whole (each such transaction, a “Change of Control Transaction”),\nor (B) at any time during the Standstill Period (1) Pegasystems requests in writing an opportunity to meet with the board of directors of\nChordiant, and (2) Chordiant does not grant such request within seven days following the date thereof or thereafter continue such discussions\nin good faith, then the restrictions set forth in this section 7 shall immediately terminate and cease to be of any further force or effect (it being\nunderstood that any good faith rejection by Chordiant of any offer or proposal made by Pegasystems as part of such discussions shall not cause\nthe restrictions set forth in this section 7 to terminate). The expiration of the Standstill Period or the termination of the restrictions set forth in\nthis section 7 will not terminate or otherwise affect any of the other provisions of this Agreement. Chordiant hereby represents and warrants to\nPegasystems that, during the 12-month period prior to the date of this Agreement, Chordiant has not entered into any confidentiality agreement\nin connection with a Change of Control Transaction that does not a include a standstill provision.\n3. Term. Section 13(i) of the Confidentiality Agreement is hereby deleted in its entirety and replaced with the following:\n(i) This Agreement shall terminate on the third anniversary of the Effective Date; provided, however, that (i) the restrictions and\ncovenants set forth in this Agreement relating to Confidential Information consisting of or relating to trade secrets, intellectual property,\nintellectual property rights and/or technical information shall terminate on the sixth anniversary of the Effective Date; and (ii) the termination\nof this Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision contained in this\nAgreement.\n4. Miscellaneous.\n(a) Defined terms used but not defined herein shall have the meaning ascribed to them in the Confidentiality Agreement.\n(b) Except as otherwise provided herein, the Confidentiality Agreement shall remain in full force and effect.\n(c) This Amendment may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Amendment (in counterparts or otherwise) by electronic\ntransmission or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Amendment.\n[Remainder of page intentionally left blank]\n2\nThe parties have caused this Amendment to be executed as of the date first written above.\nCHORDIANT SOFTWARE, INC.\nPEGASYSTEMS INC.\nBy: /s/ Robert A. Roepke, Jr.\nBy: /s/ Shawn Hoyt\nName: Robert A. Roepke, Jr.\nName: Shawn Hoyt\nTitle: VP, Finance\nTitle: General Counsel\nSignature Page to Amendment to Confidentiality Agreement\nAMENDMENT TO CONFIDENTIALITY AGREEMENT\nThis Amendment to Confidentiality Agreement (this “Amendment”) is entered into as of March 3, 2010, between Chordiant Software, Inc., a\nDelaware corporation (“Chordiant”), and Pegasystems Inc., a Delaware corporation (“Pegasystems”).\nRecitals\nA. Chordiant and Pegasystems are parties to a Confidentiality Agreement dated as of February 16, 2009 (as previously amended on March 16,\n2009 and March 2, 2010, the “Confidentiality Agreement”). Capitalized terms not otherwise defined in this Amendment will have the meanings\ngiven to such terms in the Confidentiality Agreement.\nB. The parties desire to amend the Confidentiality Agreement as set forth herein.\nAgreement\nThe parties to this Amendment, intending to be legally bound, agree as follows:\n1. The Confidentiality Agreement is hereby amended by substituting the following new Section 14 in lieu of the prior Section 14 added by\namendment on March 16, 2009, and by deleting the prior Section 15 added by amendment on March 16, 2009. Accordingly, Section 14 will read in\nits entirety as follows:\n“14. Disclosure Procedures for Highly Confidential Information.\n(a) Notwithstanding anything in this Agreement to the contrary, the parties agree that the only individuals representing Pegasystems who\nwill be granted access to Highly Confidential Information (as defined below) are those Pegasystems employees and representatives of\nPegasystems’ financial and legal advisors listed on Exhibit A hereto (the “Clean Team”). For purposes of this Agreement, “Highly\nConfidential Information” means (1) Chordiant’s PBC reports, the audit work papers relating to the Company prepared by BDO Seidman, LLP,\nChordiant’s independent auditors, (2) any Chordiant customer, OEM or partner agreement, and (3) and any other Confidential Information\nidentified by Chordiant in writing (prior to disclosure to Pegasystems or its representatives) to be of this level of sensitivity. Notwithstanding\nanything herein to the contrary, any information previously provided to Pegasystems through the data room as Highly Confidential Financial\nInformation or Other Highly Confidential Information shall be Highly Confidential Information hereunder.\n(b) Pegasystems hereby agrees to cause the individuals on the Clean Team not to disclose, prior to the consummation of the proposed\nacquisition of Chordiant by Pegasystems, any of the Highly Confidential Information to any employees, officers, directors, or representatives\nof Pegasystems, or to any other individuals who are not on the Clean Team, except that they may disclose this information in written\nsummaries, so long as these written summaries do not provide pricing terms, customer-specific information, or provide the means of\ndetermining the identity of specific customers, to members of the Pegasystems due diligence team determined by the Clean Team to have a\ngood faith “need to know” basis for the information at the level of detail these summaries provide. Subsequent to signing a definitive\nagreement but prior to consummating the transaction, Pegasystems may request that individuals not listed on Exhibit A have access to\nspecified Highly Confidential Information for integration planning purposes, with access subject to the prior written approval of Chordiant.\n2. Except as it has been specifically amended pursuant to Section 1 of this Amendment, the Confidentiality Agreement will continue in full force and\neffect.\n3. This Amendment may be executed in counterparts, each of which will constitute an original and all of which, when taken together, will constitute\none agreement.\nThe parties to this Amendment have caused this Amendment to be executed and delivered as of the date first set forth above.\nCHORDIANT SOFTWARE, INC.\nBy: /s/ David Zuckerman\nName: David Zuckerman\nTitle: VP, General Counsel and Secretary\nPEGASYSTEMS INC.\nBy: /s/ Shawn Hoyt\nName: Shawn Hoyt\nTitle: General Counsel and Secretary\n2	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of February 16, 2009 (the “Effective Date”), between\nCHORDIANT SOFTWARE, INC. (“Chordiant”) and PEGASYSTEMS INC. (“Pegasystems”).\nIn order to facilitate the consideration and negotiation of a possible transaction involving Chordiant and Pegasystems (referred to collectively\nas the “Parties” and individually as a “Party”), each Party has requested access to certain non-public information regarding the other Party and the\nother Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each Party,\nin its capacity as a recipient of information, is referred to in this Agreement as the “Recipient.”) This Agreement sets forth the Parties’ obligations\nregarding the use and disclosure of such information and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Subject to section 4 below, neither the Recipient nor any of the\nRecipient’s Representatives (as defined in section 13 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information (as defined in section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a possible transaction between the Parties; or\n(b) disclose any of the Provider’s Confidential Information to any other Person (as defined in section 13 below).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives (it being understood that any action or\nomission on the part of any Representative of the Recipient shall be deemed to constitute a breach or violation of this Agreement if such action or\nomission would constitute a breach or violation of this Agreement if taken or omitted by the Recipient). The Recipient will (at its own expense) take\nall commercially reasonable actions necessary to ensure that its Representatives not make any unauthorized use or disclosure of any of the Provider’s\nConfidential Information.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential\nInformation must be directed to any of the individuals identified opposite the name of the Provider on Exhibit A (the “Provider Contact Person”).\nNeither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the\nProvider with respect to the possible transaction that is the subject matter of this Agreement or any related matters without the prior written\nauthorization of one of the Provider Contact Persons. Nothing in this Section 2 shall prohibit any communications by the Recipient to the Provider’s\nboard of directors.\n3. No Representations by Provider. The Provider Contact Person will have the exclusive authority to decide what Confidential Information\n(if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of the Provider’s\nRepresentatives will be under any obligation to make any particular Confidential Information of the Provider available to the Recipient or any of the\nRecipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished. Neither the Provider nor\nany of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of the\nProvider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the Recipient or to any of the\nRecipient’s Representatives relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors\ntherein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that\nprovides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties (a “Definitive\nAgreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to\nthe Recipient’s disclosure thereof;\n(ii) subject to section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the\nRecipient, but only to the extent such Representative (A) reasonably needs to know such Confidential Information for the purpose of\nhelping the Recipient consider, evaluate or negotiate a possible transaction between the Parties, and (B) has been provided with a copy of\nthis Agreement, has been instructed to abide by the provisions hereof and is under an obligation to maintain the confidentiality of such\nConfidential Information; and\n(iii) subject to section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed\nonly to specified Representatives of the Recipient, then, notwithstanding anything to the contrary contained in section 4(a)(ii) above, the\nRecipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the\nRecipient.\n(c) Notwithstanding the limitations set forth in section 1 above, if the Recipient or any of the Recipient’s Representatives is required by\nlaw or governmental or other regulation or by subpoena or other valid legal process to disclose any of the Provider’s Confidential Information\nto any Person, then the Recipient will immediately provide the Provider with written notice of the applicable law, regulation or process so that\nthe Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate fully with the\nProvider and the Provider’s Representatives in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider\nelects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the\nRecipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidential Information to the extent\nlegally required; provided, however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such Confidential\nInformation is treated confidentially by each Person to whom it is disclosed.\n5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver\nto the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the\nRecipient’s Representatives; provided, however, that, in lieu of delivering to the Provider any such Confidential Information, the Recipient may\ndestroy such Confidential Information and deliver to the Provider a certificate confirming its destruction; provided, further, that outside counsel to\nthe Recipient may retain one copy of such Confidential Information to show compliance with this Agreement or to comply with applicable law, rule\nor regulation. Notwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant\nto this section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement.\n6. Limitation on Soliciting Employees. During the one-year period commencing on the Effective Date, neither Party nor any of such Party’s\nRepresentatives will directly or indirectly solicit for employment or knowingly induce or encourage (in each case, other than by means of a general\nsolicitation pursuant to a newspaper or other media advertisement or other customary means by such party in the ordinary course of its business) any\nCovered Person (as defined herein) to terminate his or her relationship with the other Party or any subsidiary or other affiliate of the other Party in\norder to become an employee, consultant or independent contractor of or to any other Person. For purposes of this letter agreement, “Covered\nPerson” shall mean any Person who is an employee of the other Party or any subsidiary or other affiliate of the other Party as of the\n2\nEffective Date or who becomes an employee of the other Party or of any subsidiary or other affiliate of the other Party before the termination of\ndiscussions regarding a possible transaction involving the Parties, in each case, who is either (x) involved in the discussions regarding the possible\ntransaction that is the subject matter of this Agreement or (y) a key employee of the Provider which will be defined as being a vice president level\nemployee or above.\n7. Standstill Provision. During the one-year period commencing on the Effective Date (the “Standstill Period”), neither Pegasystems nor any\nof Pegasystems’ Representatives will, in any manner, directly or indirectly:\n(a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) any acquisition of beneficial ownership of any\nsecurities of Chordiant or any securities of any subsidiary or other affiliate of Chordiant, (ii) any acquisition of any assets of Chordiant or any\nassets of any subsidiary or other affiliate of Chordiant, (iii) any tender offer, exchange offer, merger, business combination, recapitalization,\nrestructuring, liquidation, dissolution or extraordinary transaction involving Chordiant or any subsidiary or other affiliate of Chordiant, or\ninvolving any securities or assets of Chordiant or any securities or assets of any subsidiary or other affiliate of Chordiant, or (iv) any\n“solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to\nany securities of Chordiant; provided that, the foregoing restrictions shall not prohibit the Company in any way from making non-public offers\nor non-public proposals addressed to the board of directors of Chordiant;\n(b) form or join a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the\nbeneficial ownership of any securities of Chordiant;\n(c) act, alone or in concert with others, to seek to control the management, board of directors or policies of Chordiant;\n(d) take any action that would reasonably be likely to require Chordiant to make a public announcement regarding any of the types of\nmatters set forth in clause “(a)” of this sentence; or\n(e) enter into any arrangement or agreement with any other Person relating to any of the foregoing.\nNotwithstanding the foregoing, if (A) at any time during the Standstill Period a binding definitive acquisition agreement is executed by Chordiant\nand a third party (other than Pegasystems or any affiliate of Pegasystems) to effect (i) a merger, recapitalization or other business combination or\ntransaction that, if consummated, would result in the holders of the outstanding shares of common stock of Pegasystems immediately prior to such\nmerger or other business combination or transaction owning less than 50% of the outstanding voting power of such third party or the resulting entity\nimmediately following such merger or other business combination or transaction, or (ii) a sale of all or substantially all of the assets of Chordiant and\nits subsidiaries taken as a whole (each such transaction, a “Change of Control Transaction”), or (B) at any time during the Standstill Period (1) an\noffer for a Change of Control Transaction that specifies a per share price is publicly announced by a third party, (2) Pegasystems requests an\nopportunity to meet with the board of directors of Chordiant, and (3) Chordiant does not grant such request within seven days following the date\nthereof or thereafter continue such discussions in good faith, then the restrictions set forth in this section 7 shall immediately terminate and cease to\nbe of any further force or effect (it being understood that any good faith rejection by Chordiant of any offer or proposal made by Pegasystems as part\nof such discussions shall not cause the restrictions set forth in this section 7 to terminate). The expiration of the Standstill Period or the termination\nof the restrictions set forth in this section 7 will not terminate or otherwise affect any of the other provisions of this Agreement. Chordiant hereby\nrepresents and warrants to Pegasystems that, during the 12-month period prior to the date of this Agreement, Chordiant has not entered into any\nconfidentiality agreement in connection with a Change of Control Transaction that does not a include a standstill provision.\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with\nthe other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems appropriate with respect to any transaction or\nproposed transaction involving such Party and to modify any procedures relating to any such process without giving notice to the other Party or any\nother Person; (b) to reject any proposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving\nsuch Party; and (c) to terminate discussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly\nprovided in any binding written agreement between the Parties that is executed on or after the Effective Date: (i) the other Party and its\nRepresentatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will\nnot have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or\nproposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended\nexcept by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision\nor provisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such\nParty or by any of such Party’s Representatives and that the other Party is likely to suffer irreparable harm as a result of any such breach.\nAccordingly, each Party will be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or\nthreatened breach of this Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above will not\nbe deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in\nequity to the Parties. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its\nRepresentatives has breached this Agreement, such Party will be liable for, and will pay to the other Party and the other Party’s Representatives, the\nreasonable legal fees incurred by the other Party and the other Party’s Representatives in connection with such litigation (including any appeal\nrelating thereto).\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or\nproceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or\nproceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and\nunconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or\nproceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought\nin an inconvenient forum.\n12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only\nthe following:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast\nor projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the\nProvider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has been made available\n4\nto the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider, regardless of the\nmanner in which it was made available;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient to the extent that it contains, reflects, interprets or is based\ndirectly or indirectly upon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms, conditions or other facts with respect to any such transaction, including the status thereof.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives in breach or in violation of this Agreement;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the\nRecipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such\ninformation was not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the\nProvider or to any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) is independently developed by the Recipient without use of or reference to any of the Provider’s Confidential Information.\n13. Miscellaneous; Termination.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a\nsubsidiary or other controlled affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or\nrepresentative of such Party or of any of such Party’s subsidiaries or other controlled affiliates.\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in\nany other situation or in any other jurisdiction.\n(e) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is\nnot, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right.\n5\n(f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending,\nthreatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a\ncommonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that\nit is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall\nnot, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such\nmaterials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly,\nall Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege\nor doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties\nagree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n(g) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(h) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission\nor by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.\n(i) This Agreement shall terminate on the second anniversary of the Effective Date; provided, however, that (i) the restrictions and\ncovenants set forth in this Agreement relating to Confidential Information consisting of or relating to trade secrets, intellectual property,\nintellectual property rights and/or technical information shall terminate on the fifth anniversary of the Effective Date; and (ii) the termination\nof this Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision contained in this\nAgreement.\n[Remainder of page intentionally left blank]\n6\nThe parties have caused this Agreement to be executed as of the Effective Date.\nCHORDIANT SOFTWARE, INC. PEGASYSTEMS INC.\nBy: /s/ Steven R. Springsteel By: /s/ Alan Trefler\nName: Steven R. Springsteel Name: Alan Trefler\nTitle: Chairman, President and CEO Title: Chief Executive Officer\nSignature Page to Confidentiality Agreement\nAMENDMENT TO CONFIDENTIALITY AGREEMENT\nThis Amendment to Confidentiality Agreement (this “Amendment”) is entered into as of March 16, 2009, between Chordiant Software, Inc., a\nDelaware corporation (“Chordiant”), and Pegasystems Inc., a Delaware corporation (“Pegasystems”).\nRecitals\nA. Chordiant and Pegasystems are parties to a Confidentiality Agreement dated as of February 16, 2009 (the “Confidentiality Agreement”).\nCapitalized terms not otherwise defined in this Amendment will have the meanings given to such terms in the Confidentiality Agreement.\nB. The parties desire to amend the Confidentiality Agreement as set forth herein.\nAgreement\nThe parties to this Amendment, intending to be legally bound, agree as follows:\n1. The Confidentiality Agreement is hereby amended by adding a new Section 14 and a new Section 15, which will read in their entirety as follows:\n“14. Disclosure Procedures for Highly Confidential Financial Information.\n(a) Notwithstanding anything in this Agreement to the contrary, the parties agree that the only individuals representing Pegasystems who\nwill be granted access to Highly Confidential Financial Information (as defined below) are those representatives of Ernst & Young listed on\nExhibit A hereto (the “Financial Clean Team”). For purposes of this Agreement, “Highly Confidential Financial Information” means\nChordiant’s PBC reports, the audit work papers relating to the Company prepared by BDO Seidman, LLP, Chordiant’s independent auditors,\nand any other Confidential Information identified by Chordiant in writing (prior to disclosure to Pegasystems or its representatives) to be of\nthis level of sensitivity, except to the extent of data previously provided through the data room.\n(b) Pegasystems hereby agrees to cause the individuals on the Financial Clean Team not to disclose, prior to the consummation of the\nproposed acquisition of Chordiant by Pegasystems, any of the Highly Confidential Financial Information to any employees, officers, directors,\nor representatives of Pegasystems, or to any other individuals who are not on the Financial Clean Team, except that they may disclose this\ninformation in written summaries, so long as these written summaries do not provide pricing terms, customer-specific information, or provide\nthe means of determining the identity of specific customers, to members of the Pegasystems due diligence team determined by the Financial\nClean Team to have a good faith “need to know” basis for the information at the level of detail these summaries provide. Subsequent to signing\na definitive agreement but prior to consummating the transaction, Pegasystems may request that individuals not listed on Exhibit A or Exhibit\nB have access to specified Highly Confidential Financial Information for integration planning purposes, with access subject to the prior written\napproval of Chordiant.\n15. Disclosure Procedures for Other Highly Confidential Information.\n(a) Notwithstanding anything in this Agreement to the contrary, the parties agree that the only individuals representing Pegasystems who\nwill be granted access to Other Highly Confidential Information (as defined below) are those individuals listed on Exhibit B hereto (the “Non-\nFinancial Clean Team”). For purposes of this Agreement, “Other Highly Confidential Information” means any Chordiant customer, OEM or\npartner agreement, and any other Confidential Information identified by Chordiant in writing (prior to disclosure to Pegasystems or its\nrepresentatives) to be of this level of sensitivity, except to the extent previously provided through the data room.\n(b) Pegasystems hereby agrees to cause the individuals on the Non-Financial Clean Team not to disclose, prior to the consummation of\nthe proposed acquisition of Chordiant by Pegasystems, any of the Other Highly Confidential Information to any employees, officers, directors,\nor representatives of Pegasystems, or to any other individuals who are not on the Non-Financial Clean Team, except that they may disclose this\ninformation in written summaries, so long as these written summaries do not provide pricing terms, customer-specific information, or provide\nthe means of determining the identity of specific customers, to members of the Pegasystems due diligence team determined by the Financial\nClean Team to have a good faith “need to know” basis for the information at the level of detail these summaries provide, and Chordiant has\nprovided written approval of the disclosure of these summaries to them after first having received the names and titles of individuals to whom\nPegasystems wants to share this information (and a brief description of which summaries it seeks to share with which individuals) and these\nrecipients are not permitted to share the summaries or any of their contents with any other individuals without Chordiant’s prior written\nauthorization. Subsequent to signing a definitive agreement but prior to consummating the transaction, Pegasystems may request that\nindividuals not listed on Exhibit A or Exhibit B have access to specified Other Highly Confidential Information for integration planning\npurposes, with access subject to the prior written approval of Chordiant.”\n2. Except as it has been specifically amended pursuant to Section 1 of this Amendment, the Confidentiality Agreement will continue in full force and\neffect.\n3. This Amendment may be executed in counterparts, each of which will constitute an original and all of which, when taken together, will constitute\none agreement.\nThe parties to this Amendment have caused this Amendment to be executed and delivered as of the date first set forth above.\nCHORDIANT SOFTWARE, INC.\nBy: /s/ David Zuckerman\nName: David Zuckerman\nTitle: VP, General Counsel and Secretary\nPEGASYSTEMS INC.\nBy: /s/ Shawn Hoyt\nName: Shawn Hoyt\nTitle: General Counsel and Secretary\nAMENDMENT TO CONFIDENTIALITY AGREEMENT\nThis AMENDMENT TO CONFIDENTIALITY AGREEMENT (“Amendment”) is being entered into as of March 2, 2010 between\nCHORDIANT SOFTWARE, INC. (“Chordiant”) and PEGASYSTEMS INC. (“Pegasystems”).\nWHEREAS, Chordiant and Pegasystems previously entered into a Confidentiality Agreement dated as of February 16, 2009 (the\n“Confidentiality Agreement”), which Confidentiality Agreement remains in effect; and\nWHEREAS, Chordiant and Pegasystems desire to delete Sections 6, 7 and 13(i) of the Confidentiality Agreement and replace them with new\nprovisions which extend the term of those sections;\nNow THEREFORE, BE IT RESOLVED, that the Parties, intending to be legally bound, acknowledge and agree as follows:\n14. Limitation on Soliciting Employees. Section 6 of the Confidentiality Agreement is hereby deleted in its entirety and replaced with the\nfollowing:\n6. Limitation on Soliciting Employees. During the 18-month period commencing on the Effective Date, neither Party nor any of such Party’s\nRepresentatives will directly or indirectly solicit for employment or knowingly induce or encourage (in each case, other than by means of a\ngeneral solicitation pursuant to a newspaper or other media advertisement or other customary means by such party in the ordinary course of its\nbusiness) any Covered Person (as defined herein) to terminate his or her relationship with the other Party or any subsidiary or other affiliate of\nthe other Party in order to become an employee, consultant or independent contractor of or to any other Person. For purposes of this letter\nagreement, “Covered Person” shall mean any Person who is an employee of the other Party or any subsidiary or other affiliate of the other\nParty as of the Effective Date or who becomes an employee of the other Party or of any subsidiary or other affiliate of the other Party before\nthe termination of discussions regarding a possible transaction involving the Parties, in each case, who is either (x) involved in the discussions\nregarding the possible transaction that is the subject matter of this Agreement or (y) a key employee of the Provider which will be defined as\nbeing a vice president level employee or above.\n2. Standstill Provision. Section 7 of the Confidentiality Agreement is hereby deleted in its entirety and replaced with the following:\n7. Standstill Provision. During the 18-month period commencing on the Effective Date (the “Standstill Period”), neither Pegasystems nor\nany of Pegasystems’ Representatives will, in any manner, directly or indirectly:\n(a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) any acquisition of beneficial ownership of any\nsecurities of Chordiant or any securities of any subsidiary or other affiliate of Chordiant, (ii) any acquisition of any assets of Chordiant or any\nassets of any subsidiary or other affiliate of Chordiant, (iii) any tender offer, exchange offer, merger, business combination, recapitalization,\nrestructuring, liquidation, dissolution or extraordinary transaction involving Chordiant or any subsidiary or other affiliate of Chordiant, or\ninvolving any securities or assets of Chordiant or any securities or assets of any subsidiary or other affiliate of Chordiant, or (iv) any\n“solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to\nany securities of Chordiant; provided that, the foregoing restrictions shall not prohibit Pegasystems in any way from making non-public offers\nor non-public proposals addressed to the board of directors of Chordiant;\n(b) form or join a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the\nbeneficial ownership of any securities of Chordiant;\n(c) act, alone or in concert with others, to seek to control the management, board of directors or policies of Chordiant;\n(d) take any action that would reasonably be likely to require Chordiant to make a public announcement regarding any of the types of\nmatters set forth in clause “(a)” of this sentence; or\n(e) enter into any arrangement or agreement with any other Person relating to any of the foregoing.\nNotwithstanding the foregoing, if (A) at any time during the Standstill Period a binding definitive acquisition agreement is executed by\nChordiant and a third party (other than Pegasystems or any affiliate of Pegasystems) to effect (i) a merger, recapitalization or other business\ncombination or transaction that, if consummated, would result in the holders of the outstanding shares of common stock of Chordiant\nimmediately prior to such merger or other business combination or transaction owning less than 50% of the outstanding voting power of such\nthird party or the resulting entity immediately following such merger or other business combination or transaction, or (ii) a sale of all or\nsubstantially all of the assets of Chordiant and its subsidiaries taken as a whole (each such transaction, a “Change of Control Transaction”),\nor (B) at any time during the Standstill Period (1) Pegasystems requests in writing an opportunity to meet with the board of directors of\nChordiant, and (2) Chordiant does not grant such request within seven days following the date thereof or thereafter continue such discussions\nin good faith, then the restrictions set forth in this section 7 shall immediately terminate and cease to be of any further force or effect (it being\nunderstood that any good faith rejection by Chordiant of any offer or proposal made by Pegasystems as part of such discussions shall not cause\nthe restrictions set forth in this section 7 to terminate). The expiration of the Standstill Period or the termination of the restrictions set forth in\nthis section 7 will not terminate or otherwise affect any of the other provisions of this Agreement. Chordiant hereby represents and warrants to\nPegasystems that, during the 12-month period prior to the date of this Agreement, Chordiant has not entered into any confidentiality agreement\nin connection with a Change of Control Transaction that does not a include a standstill provision.\n3. Term. Section 13(i) of the Confidentiality Agreement is hereby deleted in its entirety and replaced with the following:\n(i) This Agreement shall terminate on the third anniversary of the Effective Date; provided, however, that (i) the restrictions and\ncovenants set forth in this Agreement relating to Confidential Information consisting of or relating to trade secrets, intellectual property,\nintellectual property rights and/or technical information shall terminate on the sixth anniversary of the Effective Date; and (ii) the termination\nof this Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision contained in this\nAgreement.\n4. Miscellaneous.\n(a) Defined terms used but not defined herein shall have the meaning ascribed to them in the Confidentiality Agreement.\n(b) Except as otherwise provided herein, the Confidentiality Agreement shall remain in full force and effect.\n(c) This Amendment may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Amendment (in counterparts or otherwise) by electronic\ntransmission or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Amendment.\n[Remainder of page intentionally left blank]\n2\nThe parties have caused this Amendment to be executed as of the date first written above.\nCHORDIANT SOFTWARE, INC. PEGASYSTEMS INC.\nBy: /s/ Robert A. Roepke, Jr. By: /s/ Shawn Hoyt\nName: Robert A. Roepke, Jr. Name: Shawn Hoyt\nTitle: VP, Finance Title;  General Counsel\nSignature Page to Amendment to Confidentiality Agreement\fAMENDMENT TO CONFIDENTIALITY AGREEMENT\nThis Amendment to Confidentiality Agreement (this “Amendment”) is entered into as of March 3, 2010, between Chordiant Software, Inc., a\nDelaware corporation (“Chordiant”), and Pegasystems Inc., a Delaware corporation (“Pegasystems”).\nRecitals\nA. Chordiant and Pegasystems are parties to a Confidentiality Agreement dated as of February 16, 2009 (as previously amended on March 16,\n2009 and March 2, 2010, the “Confidentiality Agreement”). Capitalized terms not otherwise defined in this Amendment will have the meanings\ngiven to such terms in the Confidentiality Agreement.\nB. The parties desire to amend the Confidentiality Agreement as set forth herein.\nAgreement\nThe parties to this Amendment, intending to be legally bound, agree as follows:\n1. The Confidentiality Agreement is hereby amended by substituting the following new Section 14 in lieu of the prior Section 14 added by\namendment on March 16, 2009, and by deleting the prior Section 15 added by amendment on March 16, 2009. Accordingly, Section 14 will read in\nits entirety as follows:\n“14. Disclosure Procedures for Highly Confidential Information.\n(a) Notwithstanding anything in this Agreement to the contrary, the parties agree that the only individuals representing Pegasystems who\nwill be granted access to Highly Confidential Information (as defined below) are those Pegasystems employees and representatives of\nPegasystems’ financial and legal advisors listed on Exhibit A hereto (the “Clean Team”). For purposes of this Agreement, “Highly\nConfidential Information” means (1) Chordiant’s PBC reports, the audit work papers relating to the Company prepared by BDO Seidman, LLP,\nChordiant’s independent auditors, (2) any Chordiant customer, OEM or partner agreement, and (3) and any other Confidential Information\nidentified by Chordiant in writing (prior to disclosure to Pegasystems or its representatives) to be of this level of sensitivity. Notwithstanding\nanything herein to the contrary, any information previously provided to Pegasystems through the data room as Highly Confidential Financial\nInformation or Other Highly Confidential Information shall be Highly Confidential Information hereunder.\n(b) Pegasystems hereby agrees to cause the individuals on the Clean Team not to disclose, prior to the consummation of the proposed\nacquisition of Chordiant by Pegasystems, any of the Highly Confidential Information to any employees, officers, directors, or representatives\nof Pegasystems, or to any other individuals who are not on the Clean Team, except that they may disclose this information in written\nsummaries, so long as these written summaries do not provide pricing terms, customer-specific information, or provide the means of\ndetermining the identity of specific customers, to members of the Pegasystems due diligence team determined by the Clean Team to have a\ngood faith “need to know” basis for the information at the level of detail these summaries provide. Subsequent to signing a definitive\nagreement but prior to consummating the transaction, Pegasystems may request that individuals not listed on Exhibit A have access to\nspecified Highly Confidential Information for integration planning purposes, with access subject to the prior written approval of Chordiant.\n2. Except as it has been specifically amended pursuant to Section 1 of this Amendment, the Confidentiality Agreement will continue in full force and\neffect.\n3. This Amendment may be executed in counterparts, each of which will constitute an original and all of which, when taken together, will constitute\none agreement.\nThe parties to this Amendment have caused this Amendment to be executed and delivered as of the date first set forth above.\nCHORDIANT SOFTWARE, INC.\nBy: /s/ David Zuckerman\nName: David Zuckerman\nTitle: VP, General Counsel and Secretary\nPEGASYSTEMS INC.\nBy:_/s/ Shawn Hoyt\nName: Shawn Hoyt\nTitle: General Counsel and Secretary,	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT ("Agreement") is being entered into as of February 16, 2009 (the "Effective Date"), between\nCHORDIANT SOFTWARE, INC. ("Chordiant") and PEGASYSTEMS INC. ("Pegasystems").\nIn\norder to facilitate the consideration and negotiation of a possible transaction involving Chordiant and Pegasystems (referred to collectively\nas\nthe "Parties" and individually as a "Party"), each Party has requested access to certain non-public information regarding the other Party and the\nother Party's subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the "Provider"; and each Party,\nin\nits capacity as a recipient of information, is referred to in this Agreement as the "Recipient.") This Agreement sets forth the Parties' obligations\nregarding the use and disclosure of such information and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Subject to section 4 below, neither the Recipient nor any of the\nRecipient's Representatives (as defined in section 13 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider's Confidential Information (as defined in section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a possible transaction between the Parties; or\n(b) disclose any of the Provider's Confidential Information to any other Person (as defined in section 13 below).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives (it being understood that any action or\nomission on the part of any Representative of the Recipient shall be deemed to constitute a breach or violation of this Agreement if such action or\nomission would constitute a breach or violation of this Agreement if taken or omitted by the Recipient). The Recipient will (at its own expense) take\nall commercially reasonable actions necessary to ensure that its Representatives not make any unauthorized use or disclosure of any of the Provider's\nConfidential Information.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider's Confidential\nInformation must be directed to any of the individuals identified opposite the name of the Provider on Exhibit A (the "Provider Contact Person").\nNeither the Recipient nor any of the Recipient's Representatives will contact or otherwise communicate with any other Representative of the\nProvider with respect to the possible transaction that is the subject matter of this Agreement or any related matters without the prior written\nauthorization of one of the Provider Contact Persons. Nothing in this Section 2 shall prohibit any communications by the Recipient to the Provider's\nboard of directors.\n3. No Representations by Provider. The Provider Contact Person will have the exclusive authority to decide what Confidential Information\n(if\nany) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of the Provider's\nRepresentatives will be under any obligation to make any particular Confidential Information of the Provider available to the Recipient or any of the\nRecipient's Representatives or to supplement or update any Confidential Information of the Provider previously furnished. Neither the Provider nor\nany of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of the\nProvider's Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the Recipient or to any of the\nRecipient's Representatives relating to or resulting from the use of any of the Provider's Confidential Information or any inaccuracies or errors\ntherein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement\nthat\nprovides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties (a "Definitive\nAgreement") will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to\nthe Recipient's disclosure thereof;\n(ii) subject to section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the\nRecipient, but only to the extent such Representative (A) reasonably needs to know such Confidential Information for the purpose of\nhelping the Recipient consider, evaluate or negotiate a possible transaction between the Parties, and (B) has been provided with a copy of\nthis Agreement, has been instructed to abide by the provisions hereof and is under an obligation to maintain the confidentiality of such\nConfidential Information; and\n(iii) subject to section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed\nonly to specified Representatives of the Recipient, then, notwithstanding anything to the contrary contained in section 4(a)(ii) above, the\nRecipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the\nRecipient.\n(c) Notwithstanding the limitations set forth in section 1 above, if the Recipient or any of the Recipient's Representatives is required by\nlaw or governmental or other regulation or by subpoena or other valid legal process to disclose any of the Provider's Confidential Information\nto\nany\nPerson,\nthen\nthe\nRecipient\nwill\nimmediately\nprovide\nthe\nProvider\nwith\nwritten\nnotice\nof\nthe\napplicable\nlaw,\nregulation\nor\nprocess\nso\nthat\nthe Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate fully with the\nProvider and the Provider's Representatives in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider\nelects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the\nRecipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidentia Information to the extent\nlegally required; provided, however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such Confidential\nInformation is treated confidentially by each Person to whom it is disclosed.\n5. Return of Confidential Information. Upon the Provider's request, the Recipient and the Recipient's Representatives will promptly deliver\nto the Provider any of the Provider's Confidentia Information (and all copies thereof) obtained or possessed by the Recipient or any of the\nRecipient's Representatives; provided, however, that, in lieu of delivering to the Provider any such Confidential Information, the Recipient may\ndestroy such Confidential Information and deliver to the Provider a certificate confirming its destruction; provided, further, that outside counsel to\nthe Recipient may retain one copy of such Confidential Information to show compliance with this Agreement or to comply with applicable law, rule\nor regulation. Notwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant\nto this section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement.\n6. Limitation on Soliciting Employees. During the one-year period commencing on the Effective Date, neither Party nor any of such Party's\nRepresentatives will directly or indirectly solicit for employment or knowingly induce or encourage (in each case, other than by means of a general\nsolicitation pursuant to a newspaper or other media advertisement or other customary means by such party in the ordinary course of its business) any\nCovered Person (as defined herein) to terminate his or her relationship with the other Party or any subsidiary or other affiliate of the other Party\nin\norder to become an employee, consultant or independent contractor of or to any other Person. For purposes of this letter agreement, "Covered\nPerson" shall mean any Person who is an employee of the other Party or any subsidiary or other affiliate of the other Party as of the\n2\nEffective Date or who becomes an employee of the other Party or of any subsidiary or other affiliate of the other Party before the termination\nof\ndiscussions regarding a possible transaction involving the Parties, in each case, who is either (x) involved in the discussions regarding the possible\ntransaction that is the subject matter of this Agreement or (y) a key employee of the Provider which will be defined as being a vice president level\nemployee or above.\n7. Standstill Provision. During the one-year period commencing on the Effective Date (the "Standstill Period"), neither Pegasystems nor any\nof Pegasystems' Representatives will, in any manner, directly or indirectly:\n(a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) any acquisition of beneficial ownership of any\nsecurities of Chordiant or any securities of any subsidiary or other affiliate of Chordiant, (ii) any acquisition of any assets of Chordiant or any\nassets of any subsidiary or other affiliate of Chordiant, (iii) any tender offer, exchange offer, merger, business combination, recapitalization,\nrestructuring, liquidation, dissolution or extraordinary transaction involving Chordiant or any subsidiary or other affiliate of Chordiant, or\ninvolving any securities or assets of Chordiant or any securities or assets of any subsidiary or other affiliate of Chordiant, or (iv) any\n"solicitation" of "proxies" (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to\nany securities of Chordiant; provided that, the foregoing restrictions shall not prohibit the Company in any way from making non-public\noffers\nor non-public proposals addressed to the board of directors of Chordiant;\n(b) form or join a "group" (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the\nbeneficial ownership of any securities of Chordiant;\n(c) act, alone or in concert with others, to seek to control the management, board of directors or policies of Chordiant;\n(d) take any action that would reasonably be likely to require Chordiant to make a public announcement regarding any of the types of\nmatters set forth in clause "(a)" of this sentence; or\n(e) enter into any arrangement or agreement with any other Person relating to any of the foregoing.\nNotwithstanding the foregoing, if (A) at any time during the Standstill Period a binding definitive acquisition agreement is executed by Chordiant\nand a third party (other than Pegasystems or any affiliate of Pegasystems) to effect (i) a merger, recapitalization or other business combination or\ntransaction that, if consummated, would result in the holders of the outstanding shares of common stock of Pegasystems immediately prior to such\nmerger or other business combination or transaction owning less than 50% of the outstanding voting power of such third party or the resulting entity\nimmediately following such merger or other business combination or transaction, or (ii) a sale of all or substantially all of the assets of Chordiant and\nits subsidiaries taken as a whole (each such transaction, a "Change of Control Transaction"), or (B) at any time during the Standstill Period (1) an\noffer for a Change of Control Transaction that specifies a per share price is publicly announced by a third party, (2) Pegasystems requests an\nopportunity to meet with the board of directors of Chordiant, and (3) Chordiant does not grant such request within seven days following the date\nthereof or thereafter continue such discussions in good faith, then the restrictions set forth in this section 7 shall immediately terminate and cease to\nbe of any further force or effect (it being understood that any good faith rejection by Chordiant of any offer or proposal made by Pegasystems as part\nof\nsuch\ndiscussions shall not cause the restrictions set forth in this section 7 to terminate). The expiration of the Standstill Period or the termination\nof the restrictions set forth in this section 7 will not terminate or otherwise affect any of the other provisions of this Agreement. Chordiant hereby\nrepresents and warrants to Pegasystems that, during the 12-month period prior to the date of this Agreement, Chordiant has not entered into any\nconfidentiality agreement in connection with a Change of Control Transaction that does not a include a standstill provision.\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter\ninto\nany such agreement or transaction with\n3\nthe other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems appropriate with respect to any transaction or\nproposed transaction involving such Party and to modify any procedures relating to any such process without giving notice to the other Party or any\nother Person; (b) to reject any proposal made by the other Party or any of the other Party's Representatives with respect to a transaction involving\nsuch Party; and (c) to terminate discussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly\nprovided in any binding written agreement between the Parties that is executed on or after the Effective Date: (i) the other Party and its\nRepresentatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will\nnot have any rights or claims against the other Party or any of the other Party's Representatives arising out of or relating to any transaction or\nproposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended\nexcept by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision\nor provisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such\nParty or by any of such Party's Representatives and that the other Party is likely to suffer irreparable harm as a result of any such breach.\nAccordingly, each Party will be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or\nthreatened breach of this Agreement by the other Party or any of the other Party's Representatives. The equitable remedies referred to above will not\nbe deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or\nin\nequity to the Parties. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its\nRepresentatives has breached this Agreement, such Party will be liable for, and will pay to the other Party and the other Party's Representatives, the\nreasonable legal fees incurred by the other Party and the other Party's Representatives in connection with such litigation (including any appeal\nrelating thereto).\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or\nproceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or\nproceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and\nunconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or\nproceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought\nin an inconvenient forum.\n12. Confidential Information. For purposes of this Agreement, the Provider's "Confidential Information" will be deemed to include only\nthe following:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast\nor projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the\nProvider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has been made available\n4\nto the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider, regardless of\nthe\nmanner in which it was made available;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient to the extent that it contains, reflects, interprets or is based\ndirectly or indirectly upon any information of the type referred to in clause "(a)" of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause "(a)" of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms, conditions or other facts with respect to any such transaction, including the status thereof.\nHowever, the Provider's "Confidential Information" will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient's Representatives in breach or in violation of this Agreement;\n(ii) any information that was in the Recipient's possession prior to the time it was first made available to the Recipient or any of the\nRecipient's Representatives by or on behalf of the Provider or any of the Provider's Representatives, provided that the source of such\ninformation was not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the\nProvider or to any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider's Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) is independently developed by the Recipient without use of or reference to any of the Provider's Confidential Information.\n13. Miscellaneous; Termination.\n(a) For purposes of this Agreement, a Party's "Representatives" will be deemed to include each Person that is or becomes (i) a\nsubsidiary or other controlled affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or\nrepresentative of such Party or of any of such Party's subsidiaries or other controlled affiliates.\n(b) The term "Person," as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in\nany other situation or in any other jurisdiction.\n(e) By making Confidential Information or other information available to the Recipient or the Recipient's Representatives, the Provider is\nnot, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right.\n5\n(f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending,\nthreatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a\ncommonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that\nit is the Parties' mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall\nnot, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such\nmaterials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly,\nall Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege\nor doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties\nagree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n(g) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(h) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission\nor by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.\n(i) This Agreement shall terminate on the second anniversary of the Effective Date; provided, however, that (i) the restrictions and\ncovenants set forth in this Agreement relating to Confidential Information consisting of or relating to trade secrets, intellectual property,\nintellectual property rights and/or technical information shall terminate on the fifth anniversary of the Effective Date; and (ii) the termination\nof this Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision contained in this\nAgreement.\n[Remainder of page intentionally left blank]\n6\nThe parties have caused this Agreement to be executed as of the Effective Date.\nCHORDIANT SOFTWARE, INC.\nPEGASYSTEMS INC.\nBy: /s/ Steven R. Springsteel\nBy: /s/ Alan Trefler\nName: Steven R. Springsteel\nName: Alan Trefler\nTitle: Chairman, President and CEO\nTitle: Chief Executive Officer\nSignature Page to Confidentiality Agreement\nAMENDMENT TO CONFIDENTIALITY AGREEMENT\nThis Amendment to Confidentiality Agreement (this "Amendment") is entered into as of March 16, 2009, between Chordiant Software, Inc., a\nDelaware corporation ("Chordiant"), and Pegasystems Inc., a Delaware corporation ("Pegasystems").\nRecitals\nA. Chordiant and Pegasystems are parties to a Confidentiality Agreement dated as of February 16, 2009 (the "Confidentiality Agreement").\nCapitalized terms not otherwise defined in this Amendment will have the meanings given to such terms in the Confidentiality Agreement.\nB. The parties desire to amend the Confidentiality Agreement as set forth herein.\nAgreement\nThe parties to this Amendment, intending to be legally bound, agree as follows:\n1. The Confidentiality Agreement is hereby amended by adding a new Section 14 and a new Section 15, which will read in their entirety as follows:\n"14. Disclosure Procedures for Highly Confidential Financial Information.\n(a) Notwithstanding anything in this Agreement to the contrary, the parties agree that the only individuals representing Pegasystems who\nwill be granted access to Highly Confidential Financial Information (as defined below) are those representatives of Ernst & Young listed on\nExhibit A hereto (the "Financial Clean Team"). For purposes of this Agreement, "Highly Confidential Financial Information" means\nChordiant's PBC reports, the audit work papers relating to the Company prepared by BDO Seidman, LLP, Chordiant's independent auditors,\nand any other Confidential Information identified by Chordiant in writing (prior to disclosure to Pegasystems or its representatives) to be of\nthis level of sensitivity, except to the extent of data previously provided through the data room.\n(b) Pegasystems hereby agrees to cause the individuals on the Financial Clean Team not to disclose, prior to the consummation of the\nproposed acquisition of Chordiant by Pegasystems, any of the Highly Confidential Financial Information to any employees, officers, directors,\nor\nrepresentatives\nof\nPegasystems,\nor\nto\nany\nother\nindividuals\nwho\nare\nnot\non\nthe\nFinancial\nClean\nTeam,\nexcept\nthat\nthey\nmay\ndisclose\nthis\ninformation in written summaries, so long as these written summaries do not provide pricing terms, customer-specific information, or provide\nthe means of determining the identity of specific customers, to members of the Pegasystems due diligence team determined by the Financial\nClean Team to have a good faith "need to know" basis for the information at the level of detail these summaries provide. Subsequent to signing\na definitive agreement but prior to consummating the transaction, Pegasystems may request that individuals not listed on Exhibit A or Exhibit\nB have access to specified Highly Confidential Financial Information for integration planning purposes, with access subject to the prior written\napproval of Chordiant.\n15. Disclosure Procedures for Other Highly Confidentia Information.\n(a) Notwithstanding anything in this Agreement to the contrary, the parties agree that the only individuals representing Pegasystems who\nwill be granted access to Other Highly Confidential Information (as defined below) are those individuals listed on Exhibit B hereto (the "Non-\nFinancial\nClean\nTeam").\nFor\npurposes\nof\nthis\nAgreement,\n"Other\nHighly\nConfidential\nInformation"\nmeans\nany\nChordiant\ncustomer,\nOEM\nor\npartner agreement, and any other Confidential Information identified by Chordiant in writing (prior to disclosure to Pegasystems or its\nrepresentatives) to be of this level of sensitivity, except to the extent previously provided through the data room.\n(b) Pegasystems hereby agrees to cause the individuals on the Non-Financial Clean Team not to disclose, prior to the consummation of\nthe proposed acquisition of Chordiant by Pegasystems, any of the Other Highly Confidential Information to any employees, officers, directors,\nor representatives of Pegasystems, or to any other individuals who are not on the Non-Financial Clean Team, except that they may disclose this\ninformation in written summaries, so long as these written summaries do not provide pricing terms, customer-specific information, or provide\nthe means of determining the identity of specific customers, to members of the Pegasystems due diligence team determined by the Financial\nClean Team to have a good faith "need to know" basis for the information at the level of detail these summaries provide, and Chordiant has\nprovided written approval of the disclosure of these summaries to them after first having received the names and titles of individuals to whom\nPegasystems wants to share this information (and a brief description of which summaries it seeks to share with which individuals) and these\nrecipients are not permitted to share the summaries or any of their contents with any other individuals without Chordiant's prior written\nauthorization. Subsequent to signing a definitive agreement but prior to consummating the transaction, Pegasystems may request that\nindividuals not listed on Exhibit A or Exhibit B have access to specified Other Highly Confidential Information for integration planning\npurposes, with access subject to the prior written approval of Chordiant."\n2. Except as it has been specifically amended pursuant to Section 1 of this Amendment, the Confidentiality Agreement will continue in full force and\neffect.\n3. This Amendment may be executed in counterparts, each of which will constitute an original and all of which, when taken together, will constitute\none agreement.\nThe parties to this Amendment have caused this Amendment to be executed and delivered as of the date first set forth above.\nCHORDIANT SOFTWARE, INC.\nBy: /s/ David Zuckerman\nName: David Zuckerman\nTitle: VP, General Counsel and Secretary\nPEGASYSTEMS INC.\nBy: /s/ Shawn Hoyt\nName: Shawn Hoyt\nTitle: General Counsel and Secretary\n2\nAMENDMENT TO CONFIDENTIALITY AGREEMENT\nThis AMENDMENT TO CONFIDENTIALITY AGREEMENT ("Amendment") is being entered into as of March 2, 2010 between\nCHORDIANT SOFTWARE, INC. ("Chordiant") and PEGASYSTEMS INC. ("Pegasystems").\nWHEREAS, Chordiant and Pegasystems previously entered into a Confidentiality Agreement dated as of February 16, 2009 (the\n"Confidentiality Agreement"), which Confidentiality Agreement remains in effect; and\nWHEREAS, Chordiant and Pegasystems desire to delete Sections 6, 7 and 13(i) of the Confidentiality Agreement and replace them with new\nprovisions which extend the term of those sections;\nNow THEREFORE, BE IT RESOLVED, that the Parties, intending to be legally bound, acknowledge and agree as follows:\n14. Limitation on Soliciting Employees. Section 6 of the Confidentiality Agreement is hereby deleted in its entirety and replaced with the\nfollowing:\n6. Limitation on Soliciting Employees. During the 18-month period commencing on the Effective Date, neither Party nor any of such Party's\nRepresentatives will directly or indirectly solicit for employment or knowingly induce or encourage (in each case, other than by means of a\ngeneral solicitation pursuant to a newspaper or other media advertisement or other customary means by such party in the ordinary course of\nits\nbusiness) any Covered Person (as defined herein) to terminate his or her relationship with the other Party or any subsidiary or other affiliate of\nthe other Party in order to become an employee, consultant or independent contractor of or to any other Person. For purposes of this letter\nagreement, "Covered Person" shall mean any Person who is an employee of the other Party or any subsidiary or other affiliate of the other\nParty as of the Effective Date or who becomes an employee of the other Party or of any subsidiary or other affiliate of the other Party before\nthe termination of discussions regarding a possible transaction involving the Parties, in each case, who is either (x) involved in the discussions\nregarding the possible transaction that is the subject matter of this Agreement or (y) a key employee of the Provider which will be defined as\nbeing a vice president level employee or above.\n2. Standstill Provision. Section 7 of the Confidentiality Agreement is hereby deleted in its entirety and replaced with the following:\n7. Standstill Provision. During the 18-month period commencing on the Effective Date (the "Standstill Period"), neither Pegasystems nor\nany of Pegasystems' Representatives will, in any manner, directly or indirectly:\n(a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) any acquisition of beneficial ownership of any\nsecurities of Chordiant or any securities of any subsidiary or other affiliate of Chordiant, (ii) any acquisition of any assets of Chordiant or any\nassets of any subsidiary or other affiliate of Chordiant, (iii) any tender offer, exchange offer, merger, business combination, recapitalization,\nrestructuring, liquidation, dissolution or extraordinary transaction involving Chordiant or any subsidiary or other affiliate of Chordiant, or\ninvolving any securities or assets of Chordiant or any securities or assets of any subsidiary or other affiliate of Chordiant, or (iv) any\n"solicitation" of "proxies" (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with\nrespect\nto\nany securities of Chordiant; provided that, the foregoing restrictions shall not prohibit Pegasystems in any way from making non-public offers\nor non-public proposals addressed to the board of directors of Chordiant;\n(b) form or join a "group" (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the\nbeneficial ownership of any securities of Chordiant;\n(c) act, alone or in concert with others, to seek to control the management, board of directors or policies of Chordiant;\n(d) take any action that would reasonably be likely to require Chordiant to make a public announcement regarding any of the types of\nmatters set forth in clause "(a)" of this sentence; or\n(e) enter into any arrangement or agreement with any other Person relating to any of the foregoing.\nNotwithstanding the foregoing, if (A) at any time during the Standstill Period a binding definitive acquisition agreement is executed by\nChordiant and a third party (other than Pegasystems or any affiliate of Pegasystems) to effect (i) a merger, recapitalization or other business\ncombination or transaction that, if consummated, would result in the holders of the outstanding shares of common stock of Chordiant\nimmediately prior to such merger or other business combination or transaction owning less than 50% of the outstanding voting power of such\nthird party or the resulting entity immediately following such merger or other business combination or transaction, or (ii) a sale of all or\nsubstantially all of the assets of Chordiant and its subsidiaries taken as a whole (each such transaction, a "Change of Control Transaction"),\nor\n(B)\nat\nany\ntime\nduring\nthe\nStandstill\nPeriod\n(1)\nPegasystems\nrequests\nin\nwriting\nan\nopportunity\nto\nmeet\nwith\nthe\nboard\nof\ndirectors\nof\nChordiant, and (2) Chordiant does not grant such request within seven days following the date thereof or thereafter continue such discussions\nin good faith, then the restrictions set forth in this section 7 shall immediately terminate and cease to be of any further force or effect (it being\nunderstood that any good faith rejection by Chordiant of any offer or proposal made by Pegasystems as part of such discussions shall not cause\nthe restrictions set forth in this section 7 to terminate). The expiration of the Standstill Period or the termination of the restrictions set forth in\nthis section 7 will not terminate or otherwise affect any of the other provisions of this Agreement. Chordiant hereby represents and warrants to\nPegasystems that, during the 12-month period prior to the date of this Agreement, Chordiant has not entered into any confidentiality agreement\nin connection with a Change of Control Transaction that does not a include a standstill provision.\n3. Term. Section 13(i) of the Confidentiality Agreement is hereby deleted in its entirety and replaced with the following:\n(i) This Agreement shall terminate on the third anniversary of the Effective Date; provided, however, that (i) the restrictions and\ncovenants set forth in this Agreement relating to Confidential Information consisting of or relating to trade secrets, intellectual property,\nintellectual property rights and/or technical information shall terminate on the sixth anniversary of the Effective Date; and (ii) the termination\nof\nthis Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision contained in this\nAgreement.\n4. Miscellaneous.\n(a) Defined terms used but not defined herein shall have the meaning ascribed to them in the Confidentiality Agreement.\n(b) Except as otherwise provided herein, the Confidentiality Agreement shall remain in full force and effect.\n(c) This Amendment may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Amendment (in counterparts or otherwise) by electronic\ntransmission or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Amendment.\n[Remainder of page intentionally left blank]\n2\nThe parties have caused this Amendment to be executed as of the date first written above.\nCHORDIANT SOFTWARE, INC.\nPEGASYSTEMS INC.\nBy:\n/s/ Robert A. Roepke, Jr.\nBy:\n/s/ Shawn Hoyt\nName: Robert A. Roepke, Jr.\nName: Shawn Hoyt\nTitle: VP, Finance\nTitle: General Counsel\nSignature Page to Amendment to Confidentiality Agreement\nAMENDMENT TO CONFIDENTIALITY AGREEMENT\nThis Amendment to Confidentiality Agreement (this "Amendment") is entered into as of March 3, 2010, between Chordiant Software, Inc., a\nDelaware corporation ("Chordiant"), and Pegasystems Inc., a Delaware corporation ("Pegasystems").\nRecitals\nA. Chordiant and Pegasystems are parties to a Confidentiality Agreement dated as of February 16, 2009 (as previously amended on March 16,\n2009 and March 2, 2010, the "Confidentiality Agreement"). Capitalized terms not otherwise defined in this Amendment will have the meanings\ngiven to such terms in the Confidentiality Agreement.\nB. The parties desire to amend the Confidentiality Agreement as set forth herein.\nAgreement\nThe parties to this Amendment, intending to be legally bound, agree as follows:\n1.\nThe\nConfidentiality Agreement is hereby amended by substituting the following new Section 14 in lieu of the prior Section 14 added by\namendment on March 16, 2009, and by deleting the prior Section 15 added by amendment on March 16, 2009. Accordingly, Section 14 will read\nin\nits entirety as follows:\n"14. Disclosure Procedures for Highly Confidential Information.\n(a) Notwithstanding anything in this Agreement to the contrary, the parties agree that the only individuals representing Pegasystems who\nwill be granted access to Highly Confidential Information (as defined below) are those Pegasystems employees and representatives of\nPegasystems' financial and legal advisors listed on Exhibit A hereto (the "Clean Team"). For purposes of this Agreement, "Highly\nConfidential Information" means (1) Chordiant's PBC reports, the audit work papers relating to the Company prepared by BDO Seidman, LLP,\nChordiant's independent auditors, (2) any Chordiant customer, OEM or partner agreement, and (3) and any other Confidential Information\nidentified by Chordiant in writing (prior to disclosure to Pegasystems or its representatives) to be of this level of sensitivity. Notwithstanding\nanything herein to the contrary, any information previously provided to Pegasystems through the data room as Highly Confidential Financial\nInformation or Other Highly Confidential Information shall be Highly Confidential Information hereunder.\n(b) Pegasystems hereby agrees to cause the individuals on the Clean Team not to disclose, prior to the consummation of the proposed\nacquisition of Chordiant by Pegasystems, any of the Highly Confidential Information to any employees, officers, directors, or representatives\nof Pegasystems, or to any other individuals who are not on the Clean Team, except that they may disclose this information in written\nsummaries, so long as these written summaries do not provide pricing terms, customer-specific information, or provide the\nmeans\nof\ndetermining the identity of specific customers, to members of the Pegasystems due diligence team determined by the Clean Team to have a\ngood faith "need to know" basis for the information at the level of detail these summaries provide. Subsequent to signing a definitive\nagreement\nbut\nprior\nto\nconsummating\nthe\ntransaction,\nPegasystems\nmay\nrequest\nthat\nindividuals\nnot\nlisted\non\nExhibit\nA\nhave\naccess\nto\nspecified Highly Confidential Information for integration planning purposes, with access subject to the prior written approval of Chordiant.\n2. Except as it has been specifically amended pursuant to Section 1 of this Amendment, the Confidentiality Agreement will continue in full force and\neffect.\n3.\nThis Amendment may be executed in counterparts, each of which will constitute an original and all of which, when taken together, will constitute\none agreement.\nThe parties to this Amendment have caused this Amendment to be executed and delivered as of the date first set forth above.\nCHORDIANT SOFTWARE, INC.\nBy: /s/ David Zuckerman\nName: David Zuckerman\nTitle: VP, General Counsel and Secretary\nPEGASYSTEMS INC.\nBy: /s/ Shawn Hoyt\nName: Shawn Hoyt\nTitle: General Counsel and Secretary.\n2	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of February 16, 2009 (the “Effective Date”), between\nCHORDIANT SOFTWARE, INC. (“Chordiant”) and PEGASYSTEMS INC. (“Pegasystems”).\nIn order to facilitate the consideration and negotiation of a possible transaction involving Chordiant and Pegasystems (referred to collectively\nas the “Parties” and individually as a “Party”), each Party has requested access to certain non-public information regarding the other Party and the\nother Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each Party,\nin its capacity as a recipient of information, is referred to in this Agreement as the “Recipient.”) This Agreement sets forth the Parties’ obligations\nregarding the use and disclosure of such information and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Subject to section 4 below, neither the Recipient nor any of the\nRecipient’s Representatives (as defined in section 13 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information (as defined in section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a possible transaction between the Parties; or\n(b) disclose any of the Provider’s Confidential Information to any other Person (as defined in section 13 below).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives (it being understood that any action or\nomission on the part of any Representative of the Recipient shall be deemed to constitute a breach or violation of this Agreement if such action or\nomission would constitute a breach or violation of this Agreement if taken or omitted by the Recipient). The Recipient will (at its own expense) take\nall commercially reasonable actions necessary to ensure that its Representatives not make any unauthorized use or disclosure of any of the Provider’s\nConfidential Information.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential\nInformation must be directed to any of the individuals identified opposite the name of the Provider on Exhibit A (the “Provider Contact Person”).\nNeither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the\nProvider with respect to the possible transaction that is the subject matter of this Agreement or any related matters without the prior written\nauthorization of one of the Provider Contact Persons. Nothing in this Section 2 shall prohibit any communications by the Recipient to the Provider’s\nboard of directors.\n3. No Representations by Provider. The Provider Contact Person will have the exclusive authority to decide what Confidential Information\n(if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of the Provider’s\nRepresentatives will be under any obligation to make any particular Confidential Information of the Provider available to the Recipient or any of the\nRecipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished. Neither the Provider nor\nany of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of the\nProvider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the Recipient or to any of the\nRecipient’s Representatives relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors\ntherein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that\nprovides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties (a “Definitive\nAgreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to\nthe Recipient’s disclosure thereof;\n(ii) subject to section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the\nRecipient, but only to the extent such Representative (A) reasonably needs to know such Confidential Information for the purpose of\nhelping the Recipient consider, evaluate or negotiate a possible transaction between the Parties, and (B) has been provided with a copy of\nthis Agreement, has been instructed to abide by the provisions hereof and is under an obligation to maintain the confidentiality of such\nConfidential Information; and\n(iii) subject to section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed\nonly to specified Representatives of the Recipient, then, notwithstanding anything to the contrary contained in section 4(a)(ii) above, the\nRecipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the\nRecipient.\n(c) Notwithstanding the limitations set forth in section 1 above, if the Recipient or any of the Recipient’s Representatives is required by\nlaw or governmental or other regulation or by subpoena or other valid legal process to disclose any of the Provider’s Confidential Information\nto any Person, then the Recipient will immediately provide the Provider with written notice of the applicable law, regulation or process so that\nthe Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate fully with the\nProvider and the Provider’s Representatives in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider\nelects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the\nRecipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidential Information to the extent\nlegally required; provided, however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such Confidential\nInformation is treated confidentially by each Person to whom it is disclosed.\n5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver\nto the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the\nRecipient’s Representatives; provided, however, that, in lieu of delivering to the Provider any such Confidential Information, the Recipient may\ndestroy such Confidential Information and deliver to the Provider a certificate confirming its destruction; provided, further, that outside counsel to\nthe Recipient may retain one copy of such Confidential Information to show compliance with this Agreement or to comply with applicable law, rule\nor regulation. Notwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant\nto this section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement.\n6. Limitation on Soliciting Employees. During the one-year period commencing on the Effective Date, neither Party nor any of such Party’s\nRepresentatives will directly or indirectly solicit for employment or knowingly induce or encourage (in each case, other than by means of a general\nsolicitation pursuant to a newspaper or other media advertisement or other customary means by such party in the ordinary course of its business) any\nCovered Person (as defined herein) to terminate his or her relationship with the other Party or any subsidiary or other affiliate of the other Party in\norder to become an employee, consultant or independent contractor of or to any other Person. For purposes of this letter agreement, “Covered\nPerson” shall mean any Person who is an employee of the other Party or any subsidiary or other affiliate of the other Party as of the\n2\nEffective Date or who becomes an employee of the other Party or of any subsidiary or other affiliate of the other Party before the termination of\ndiscussions regarding a possible transaction involving the Parties, in each case, who is either (x) involved in the discussions regarding the possible\ntransaction that is the subject matter of this Agreement or (y) a key employee of the Provider which will be defined as being a vice president level\nemployee or above.\n7. Standstill Provision. During the one-year period commencing on the Effective Date (the “Standstill Period”), neither Pegasystems nor any\nof Pegasystems’ Representatives will, in any manner, directly or indirectly:\n(a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) any acquisition of beneficial ownership of any\nsecurities of Chordiant or any securities of any subsidiary or other affiliate of Chordiant, (ii) any acquisition of any assets of Chordiant or any\nassets of any subsidiary or other affiliate of Chordiant, (iii) any tender offer, exchange offer, merger, business combination, recapitalization,\nrestructuring, liquidation, dissolution or extraordinary transaction involving Chordiant or any subsidiary or other affiliate of Chordiant, or\ninvolving any securities or assets of Chordiant or any securities or assets of any subsidiary or other affiliate of Chordiant, or (iv) any\n“solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to\nany securities of Chordiant; provided that, the foregoing restrictions shall not prohibit the Company in any way from making non-public offers\nor non-public proposals addressed to the board of directors of Chordiant;\n(b) form or join a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the\nbeneficial ownership of any securities of Chordiant;\n(c) act, alone or in concert with others, to seek to control the management, board of directors or policies of Chordiant;\n(d) take any action that would reasonably be likely to require Chordiant to make a public announcement regarding any of the types of\nmatters set forth in clause “(a)” of this sentence; or\n(e) enter into any arrangement or agreement with any other Person relating to any of the foregoing.\nNotwithstanding the foregoing, if (A) at any time during the Standstill Period a binding definitive acquisition agreement is executed by Chordiant\nand a third party (other than Pegasystems or any affiliate of Pegasystems) to effect (i) a merger, recapitalization or other business combination or\ntransaction that, if consummated, would result in the holders of the outstanding shares of common stock of Pegasystems immediately prior to such\nmerger or other business combination or transaction owning less than 50% of the outstanding voting power of such third party or the resulting entity\nimmediately following such merger or other business combination or transaction, or (ii) a sale of all or substantially all of the assets of Chordiant and\nits subsidiaries taken as a whole (each such transaction, a “Change of Control Transaction”), or (B) at any time during the Standstill Period (1) an\noffer for a Change of Control Transaction that specifies a per share price is publicly announced by a third party, (2) Pegasystems requests an\nopportunity to meet with the board of directors of Chordiant, and (3) Chordiant does not grant such request within seven days following the date\nthereof or thereafter continue such discussions in good faith, then the restrictions set forth in this section 7 shall immediately terminate and cease to\nbe of any further force or effect (it being understood that any good faith rejection by Chordiant of any offer or proposal made by Pegasystems as part\nof such discussions shall not cause the restrictions set forth in this section 7 to terminate). The expiration of the Standstill Period or the termination\nof the restrictions set forth in this section 7 will not terminate or otherwise affect any of the other provisions of this Agreement. Chordiant hereby\nrepresents and warrants to Pegasystems that, during the 12-month period prior to the date of this Agreement, Chordiant has not entered into any\nconfidentiality agreement in connection with a Change of Control Transaction that does not a include a standstill provision.\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with\n3\nthe other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems appropriate with respect to any transaction or\nproposed transaction involving such Party and to modify any procedures relating to any such process without giving notice to the other Party or any\nother Person; (b) to reject any proposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving\nsuch Party; and (c) to terminate discussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly\nprovided in any binding written agreement between the Parties that is executed on or after the Effective Date: (i) the other Party and its\nRepresentatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will\nnot have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or\nproposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended\nexcept by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision\nor provisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such\nParty or by any of such Party’s Representatives and that the other Party is likely to suffer irreparable harm as a result of any such breach.\nAccordingly, each Party will be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or\nthreatened breach of this Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above will not\nbe deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in\nequity to the Parties. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its\nRepresentatives has breached this Agreement, such Party will be liable for, and will pay to the other Party and the other Party’s Representatives, the\nreasonable legal fees incurred by the other Party and the other Party’s Representatives in connection with such litigation (including any appeal\nrelating thereto).\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or\nproceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or\nproceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and\nunconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or\nproceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought\nin an inconvenient forum.\n12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only\nthe following:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast\nor projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the\nProvider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has been made available\n4\nto the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider, regardless of the\nmanner in which it was made available;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient to the extent that it contains, reflects, interprets or is based\ndirectly or indirectly upon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms, conditions or other facts with respect to any such transaction, including the status thereof.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives in breach or in violation of this Agreement;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the\nRecipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such\ninformation was not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the\nProvider or to any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) is independently developed by the Recipient without use of or reference to any of the Provider’s Confidential Information.\n13. Miscellaneous; Termination.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a\nsubsidiary or other controlled affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or\nrepresentative of such Party or of any of such Party’s subsidiaries or other controlled affiliates.\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in\nany other situation or in any other jurisdiction.\n(e) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is\nnot, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right.\n5\n(f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending,\nthreatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a\ncommonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that\nit is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall\nnot, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such\nmaterials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly,\nall Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege\nor doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties\nagree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n(g) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(h) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission\nor by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.\n(i) This Agreement shall terminate on the second anniversary of the Effective Date; provided, however, that (i) the restrictions and\ncovenants set forth in this Agreement relating to Confidential Information consisting of or relating to trade secrets, intellectual property,\nintellectual property rights and/or technical information shall terminate on the fifth anniversary of the Effective Date; and (ii) the termination\nof this Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision contained in this\nAgreement.\n[Remainder of page intentionally left blank]\n6\nThe parties have caused this Agreement to be executed as of the Effective Date.\nCHORDIANT SOFTWARE, INC.\nPEGASYSTEMS INC.\nBy: /s/ Steven R. Springsteel\nBy: /s/ Alan Trefler\nName: Steven R. Springsteel\nName: Alan Trefler\nTitle: Chairman, President and CEO\nTitle: Chief Executive Officer\nSignature Page to Confidentiality Agreement\nAMENDMENT TO CONFIDENTIALITY AGREEMENT\nThis Amendment to Confidentiality Agreement (this “Amendment”) is entered into as of March 16, 2009, between Chordiant Software, Inc., a\nDelaware corporation (“Chordiant”), and Pegasystems Inc., a Delaware corporation (“Pegasystems”).\nRecitals\nA. Chordiant and Pegasystems are parties to a Confidentiality Agreement dated as of February 16, 2009 (the “Confidentiality Agreement”).\nCapitalized terms not otherwise defined in this Amendment will have the meanings given to such terms in the Confidentiality Agreement.\nB. The parties desire to amend the Confidentiality Agreement as set forth herein.\nAgreement\nThe parties to this Amendment, intending to be legally bound, agree as follows:\n1. The Confidentiality Agreement is hereby amended by adding a new Section 14 and a new Section 15, which will read in their entirety as follows:\n“14. Disclosure Procedures for Highly Confidential Financial Information.\n(a) Notwithstanding anything in this Agreement to the contrary, the parties agree that the only individuals representing Pegasystems who\nwill be granted access to Highly Confidential Financial Information (as defined below) are those representatives of Ernst & Young listed on\nExhibit A hereto (the “Financial Clean Team”). For purposes of this Agreement, “Highly Confidential Financial Information” means\nChordiant’s PBC reports, the audit work papers relating to the Company prepared by BDO Seidman, LLP, Chordiant’s independent auditors,\nand any other Confidential Information identified by Chordiant in writing (prior to disclosure to Pegasystems or its representatives) to be of\nthis level of sensitivity, except to the extent of data previously provided through the data room.\n(b) Pegasystems hereby agrees to cause the individuals on the Financial Clean Team not to disclose, prior to the consummation of the\nproposed acquisition of Chordiant by Pegasystems, any of the Highly Confidential Financial Information to any employees, officers, directors,\nor representatives of Pegasystems, or to any other individuals who are not on the Financial Clean Team, except that they may disclose this\ninformation in written summaries, so long as these written summaries do not provide pricing terms, customer-specific information, or provide\nthe means of determining the identity of specific customers, to members of the Pegasystems due diligence team determined by the Financial\nClean Team to have a good faith “need to know” basis for the information at the level of detail these summaries provide. Subsequent to signing\na definitive agreement but prior to consummating the transaction, Pegasystems may request that individuals not listed on Exhibit A or Exhibit\nB have access to specified Highly Confidential Financial Information for integration planning purposes, with access subject to the prior written\napproval of Chordiant.\n15. Disclosure Procedures for Other Highly Confidential Information.\n(a) Notwithstanding anything in this Agreement to the contrary, the parties agree that the only individuals representing Pegasystems who\nwill be granted access to Other Highly Confidential Information (as defined below) are those individuals listed on Exhibit B hereto (the “Non-\nFinancial Clean Team”). For purposes of this Agreement, “Other Highly Confidential Information” means any Chordiant customer, OEM or\npartner agreement, and any other Confidential Information identified by Chordiant in writing (prior to disclosure to Pegasystems or its\nrepresentatives) to be of this level of sensitivity, except to the extent previously provided through the data room.\n(b) Pegasystems hereby agrees to cause the individuals on the Non-Financial Clean Team not to disclose, prior to the consummation of\nthe proposed acquisition of Chordiant by Pegasystems, any of the Other Highly Confidential Information to any employees, officers, directors,\nor representatives of Pegasystems, or to any other individuals who are not on the Non-Financial Clean Team, except that they may disclose this\ninformation in written summaries, so long as these written summaries do not provide pricing terms, customer-specific information, or provide\nthe means of determining the identity of specific customers, to members of the Pegasystems due diligence team determined by the Financial\nClean Team to have a good faith “need to know” basis for the information at the level of detail these summaries provide, and Chordiant has\nprovided written approval of the disclosure of these summaries to them after first having received the names and titles of individuals to whom\nPegasystems wants to share this information (and a brief description of which summaries it seeks to share with which individuals) and these\nrecipients are not permitted to share the summaries or any of their contents with any other individuals without Chordiant’s prior written\nauthorization. Subsequent to signing a definitive agreement but prior to consummating the transaction, Pegasystems may request that\nindividuals not listed on Exhibit A or Exhibit B have access to specified Other Highly Confidential Information for integration planning\npurposes, with access subject to the prior written approval of Chordiant.”\n2. Except as it has been specifically amended pursuant to Section 1 of this Amendment, the Confidentiality Agreement will continue in full force and\neffect.\n3. This Amendment may be executed in counterparts, each of which will constitute an original and all of which, when taken together, will constitute\none agreement.\nThe parties to this Amendment have caused this Amendment to be executed and delivered as of the date first set forth above.\nCHORDIANT SOFTWARE, INC.\nBy: /s/ David Zuckerman\nName: David Zuckerman\nTitle: VP, General Counsel and Secretary\nPEGASYSTEMS INC.\nBy: /s/ Shawn Hoyt\nName: Shawn Hoyt\nTitle: General Counsel and Secretary\n2\nAMENDMENT TO CONFIDENTIALITY AGREEMENT\nThis AMENDMENT TO CONFIDENTIALITY AGREEMENT (“Amendment”) is being entered into as of March 2, 2010 between\nCHORDIANT SOFTWARE, INC. (“Chordiant”) and PEGASYSTEMS INC. (“Pegasystems”).\nWHEREAS, Chordiant and Pegasystems previously entered into a Confidentiality Agreement dated as of February 16, 2009 (the\n“Confidentiality Agreement”), which Confidentiality Agreement remains in effect; and\nWHEREAS, Chordiant and Pegasystems desire to delete Sections 6, 7 and 13(i) of the Confidentiality Agreement and replace them with new\nprovisions which extend the term of those sections;\nNOW THEREFORE, BE IT RESOLVED, that the Parties, intending to be legally bound, acknowledge and agree as follows:\n14. Limitation on Soliciting Employees. Section 6 of the Confidentiality Agreement is hereby deleted in its entirety and replaced with the\nfollowing:\n6. Limitation on Soliciting Employees. During the 18-month period commencing on the Effective Date, neither Party nor any of such Party’s\nRepresentatives will directly or indirectly solicit for employment or knowingly induce or encourage (in each case, other than by means of a\ngeneral solicitation pursuant to a newspaper or other media advertisement or other customary means by such party in the ordinary course of its\nbusiness) any Covered Person (as defined herein) to terminate his or her relationship with the other Party or any subsidiary or other affiliate of\nthe other Party in order to become an employee, consultant or independent contractor of or to any other Person. For purposes of this letter\nagreement, “Covered Person” shall mean any Person who is an employee of the other Party or any subsidiary or other affiliate of the other\nParty as of the Effective Date or who becomes an employee of the other Party or of any subsidiary or other affiliate of the other Party before\nthe termination of discussions regarding a possible transaction involving the Parties, in each case, who is either (x) involved in the discussions\nregarding the possible transaction that is the subject matter of this Agreement or (y) a key employee of the Provider which will be defined as\nbeing a vice president level employee or above.\n2. Standstill Provision. Section 7 of the Confidentiality Agreement is hereby deleted in its entirety and replaced with the following:\n7. Standstill Provision. During the 18-month period commencing on the Effective Date (the “Standstill Period”), neither Pegasystems nor\nany of Pegasystems’ Representatives will, in any manner, directly or indirectly:\n(a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) any acquisition of beneficial ownership of any\nsecurities of Chordiant or any securities of any subsidiary or other affiliate of Chordiant, (ii) any acquisition of any assets of Chordiant or any\nassets of any subsidiary or other affiliate of Chordiant, (iii) any tender offer, exchange offer, merger, business combination, recapitalization,\nrestructuring, liquidation, dissolution or extraordinary transaction involving Chordiant or any subsidiary or other affiliate of Chordiant, or\ninvolving any securities or assets of Chordiant or any securities or assets of any subsidiary or other affiliate of Chordiant, or (iv) any\n“solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to\nany securities of Chordiant; provided that, the foregoing restrictions shall not prohibit Pegasystems in any way from making non-public offers\nor non-public proposals addressed to the board of directors of Chordiant;\n(b) form or join a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the\nbeneficial ownership of any securities of Chordiant;\n(c) act, alone or in concert with others, to seek to control the management, board of directors or policies of Chordiant;\n(d) take any action that would reasonably be likely to require Chordiant to make a public announcement regarding any of the types of\nmatters set forth in clause “(a)” of this sentence; or\n(e) enter into any arrangement or agreement with any other Person relating to any of the foregoing.\nNotwithstanding the foregoing, if (A) at any time during the Standstill Period a binding definitive acquisition agreement is executed by\nChordiant and a third party (other than Pegasystems or any affiliate of Pegasystems) to effect (i) a merger, recapitalization or other business\ncombination or transaction that, if consummated, would result in the holders of the outstanding shares of common stock of Chordiant\nimmediately prior to such merger or other business combination or transaction owning less than 50% of the outstanding voting power of such\nthird party or the resulting entity immediately following such merger or other business combination or transaction, or (ii) a sale of all or\nsubstantially all of the assets of Chordiant and its subsidiaries taken as a whole (each such transaction, a “Change of Control Transaction”),\nor (B) at any time during the Standstill Period (1) Pegasystems requests in writing an opportunity to meet with the board of directors of\nChordiant, and (2) Chordiant does not grant such request within seven days following the date thereof or thereafter continue such discussions\nin good faith, then the restrictions set forth in this section 7 shall immediately terminate and cease to be of any further force or effect (it being\nunderstood that any good faith rejection by Chordiant of any offer or proposal made by Pegasystems as part of such discussions shall not cause\nthe restrictions set forth in this section 7 to terminate). The expiration of the Standstill Period or the termination of the restrictions set forth in\nthis section 7 will not terminate or otherwise affect any of the other provisions of this Agreement. Chordiant hereby represents and warrants to\nPegasystems that, during the 12-month period prior to the date of this Agreement, Chordiant has not entered into any confidentiality agreement\nin connection with a Change of Control Transaction that does not a include a standstill provision.\n3. Term. Section 13(i) of the Confidentiality Agreement is hereby deleted in its entirety and replaced with the following:\n(i) This Agreement shall terminate on the third anniversary of the Effective Date; provided, however, that (i) the restrictions and\ncovenants set forth in this Agreement relating to Confidential Information consisting of or relating to trade secrets, intellectual property,\nintellectual property rights and/or technical information shall terminate on the sixth anniversary of the Effective Date; and (ii) the termination\nof this Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision contained in this\nAgreement.\n4. Miscellaneous.\n(a) Defined terms used but not defined herein shall have the meaning ascribed to them in the Confidentiality Agreement.\n(b) Except as otherwise provided herein, the Confidentiality Agreement shall remain in full force and effect.\n(c) This Amendment may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Amendment (in counterparts or otherwise) by electronic\ntransmission or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Amendment.\n[Remainder of page intentionally left blank]\n2\nThe parties have caused this Amendment to be executed as of the date first written above.\nCHORDIANT SOFTWARE, INC.\nPEGASYSTEMS INC.\nBy: /s/ Robert A. Roepke, Jr.\nBy: /s/ Shawn Hoyt\nName: Robert A. Roepke, Jr.\nName: Shawn Hoyt\nTitle: VP, Finance\nTitle: General Counsel\nSignature Page to Amendment to Confidentiality Agreement\nAMENDMENT TO CONFIDENTIALITY AGREEMENT\nThis Amendment to Confidentiality Agreement (this “Amendment”) is entered into as of March 3, 2010, between Chordiant Software, Inc., a\nDelaware corporation (“Chordiant”), and Pegasystems Inc., a Delaware corporation (“Pegasystems”).\nRecitals\nA. Chordiant and Pegasystems are parties to a Confidentiality Agreement dated as of February 16, 2009 (as previously amended on March 16,\n2009 and March 2, 2010, the “Confidentiality Agreement”). Capitalized terms not otherwise defined in this Amendment will have the meanings\ngiven to such terms in the Confidentiality Agreement.\nB. The parties desire to amend the Confidentiality Agreement as set forth herein.\nAgreement\nThe parties to this Amendment, intending to be legally bound, agree as follows:\n1. The Confidentiality Agreement is hereby amended by substituting the following new Section 14 in lieu of the prior Section 14 added by\namendment on March 16, 2009, and by deleting the prior Section 15 added by amendment on March 16, 2009. Accordingly, Section 14 will read in\nits entirety as follows:\n“14. Disclosure Procedures for Highly Confidential Information.\n(a) Notwithstanding anything in this Agreement to the contrary, the parties agree that the only individuals representing Pegasystems who\nwill be granted access to Highly Confidential Information (as defined below) are those Pegasystems employees and representatives of\nPegasystems’ financial and legal advisors listed on Exhibit A hereto (the “Clean Team”). For purposes of this Agreement, “Highly\nConfidential Information” means (1) Chordiant’s PBC reports, the audit work papers relating to the Company prepared by BDO Seidman, LLP,\nChordiant’s independent auditors, (2) any Chordiant customer, OEM or partner agreement, and (3) and any other Confidential Information\nidentified by Chordiant in writing (prior to disclosure to Pegasystems or its representatives) to be of this level of sensitivity. Notwithstanding\nanything herein to the contrary, any information previously provided to Pegasystems through the data room as Highly Confidential Financial\nInformation or Other Highly Confidential Information shall be Highly Confidential Information hereunder.\n(b) Pegasystems hereby agrees to cause the individuals on the Clean Team not to disclose, prior to the consummation of the proposed\nacquisition of Chordiant by Pegasystems, any of the Highly Confidential Information to any employees, officers, directors, or representatives\nof Pegasystems, or to any other individuals who are not on the Clean Team, except that they may disclose this information in written\nsummaries, so long as these written summaries do not provide pricing terms, customer-specific information, or provide the means of\ndetermining the identity of specific customers, to members of the Pegasystems due diligence team determined by the Clean Team to have a\ngood faith “need to know” basis for the information at the level of detail these summaries provide. Subsequent to signing a definitive\nagreement but prior to consummating the transaction, Pegasystems may request that individuals not listed on Exhibit A have access to\nspecified Highly Confidential Information for integration planning purposes, with access subject to the prior written approval of Chordiant.\n2. Except as it has been specifically amended pursuant to Section 1 of this Amendment, the Confidentiality Agreement will continue in full force and\neffect.\n3. This Amendment may be executed in counterparts, each of which will constitute an original and all of which, when taken together, will constitute\none agreement.\nThe parties to this Amendment have caused this Amendment to be executed and delivered as of the date first set forth above.\nCHORDIANT SOFTWARE, INC.\nBy: /s/ David Zuckerman\nName: David Zuckerman\nTitle: VP, General Counsel and Secretary\nPEGASYSTEMS INC.\nBy: /s/ Shawn Hoyt\nName: Shawn Hoyt\nTitle: General Counsel and Secretary\n2
b970c7aa92ceff20f116a49c87cbfda0.pdf	effective_date jurisdiction party term	CONFIDENTIAL AND PROPRIETARY\nWelocalize, Inc\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (the "Agreement"), is made this 19th day of December, 2007 by and between Welocalize, Inc. , a Delaware\nCorporation ("Welocalize"), and Targetek Co. , Ltd. ("Supplier").\nWHEREAS, the Supplier will provide certain specialized services to include software development, translation, localization and globalization consulting (the\n"Services") for customers of Welocalize (each, a "Customer Company") or for Welocalize and,\nWHEREAS, the Supplier will need to have access to certain proprietary technology and materials (including methodologies, translation memory databases,\nsoftware programs and source code, identification names and passwords, documentation and/or marketing materials or other business information) in order to\nevaluate its strategy for delivering the Services and for actually delivering the Services; and,\nWHEREAS, the Supplier and Welocalize consider such documents, identification names and passwords, records, translation memory databases and information\npertaining to products confidential and do not want them disclosed to third parties;\nNOW, THEREFORE IN CONSIDERATION of the mutual covenants and conditions herein contained, the parties agree as follows:\n1. OBLIGATION NOT TO USE OR DISCLOSE\nBoth parties agree to keep confidential all information concerning the other party's business or its ideas, products, customers or services that could be considered\nto be "Confidential Information," as such term is defined herein.\nThe receiving party will not, during or subsequent to the term of this Agreement, use the Confidential Information for any purpose whatsoever other than the\nperformance of the Services for the benefit of Welocalize, or disclose Confidential Information to any third party other than its employees or subcontractors who\nhave a need to have access to and knowledge of the Confidential Information solely in connection with the performance of Services hereunder.\nPrior to disclosure, the receiving party shall have entered into non-disclosure agreements with such employees and subcontractors having obligations of\nconfidentiality as strict as those contained in this Section, to ensure against unauthorized use or disclosure of Confidential Information.\n2. DEFINITION OF CONFIDENTIAL INFORMATION\n"Confidential Information" shall be deemed to include any technology, proprietary information, technical data, trade secrets and/or know-how, including, without\nlimitation, research, product plans, products, services, customers, customer lists, pricing, revenue, markets, software, developments, inventions, processes,\nformulas, technology, designs, drawings, engineering, hardware configuration information, methodologies, translation memory databases, software programs and\nsource code including those licensed by Welocalize and made available to Supplier for the purpose of facilitating Supplier's performance of services for\nWelocalize's or its customers' benefit, identification names and passwords, documentation, proprietary information belonging to third-party Welocalize customers\nor licensors, and/or marketing, finances or other business information, disclosed by the disclosing party either directly or indirectly in writing, orally, electronically,\nor by drawings or inspection of parts or equipment, including but not limited to any work product delivered hereunder, and other such information which, by its\nnature, is normally understood to be confidential.\n1\nCONFIDENTIAL AND PROPRIETARY\nWelocalize, Inc\n3. EXCLUSIONS\nThe obligations described in Section 1 shall not extend to the following:\n•\nConfidential Information which at the time of\ndisclosure is in the public domain\n•\nConfidential Information which after generation or\ndisclosure is published or otherwise becomes part of\nthe public domain through no fault of the receiving\nparty (but only after and to the extent that it is\npublished or otherwise becomes part of the public\ndomain)\n•\nConfidential Information which either party can show\nwas in its possession at the time of generation or\ndisclosure and was not acquired, directly or indirectly,\nfrom the other party or from a third party under an\nobligation of confidence\n•\nConfidential Information which was received after the\ntime of generation or disclosure hereunder, from a\nthird party who did not require that party to hold it in\nconfidence and who did not acquire it, directly or\nindirectly, from the other party under an obligation of\nconfidence; and\n•\nConfidential Information which the receiving party can\nshow was developed independently without benefit of,\nor being based on, information generated hereunder\nor made available by the other party\n4. STANDARD OF CARE\nEach party shall exercise at least such care in protection of the confidential information of the other as they exercise in the protection of Confidential Information\nof their own, but in no event shall such party exercise less than reasonable care in doing so.\nIt is the Supplier's responsibility to notify Welocalize if and when an employee with access to their identification names and passwords leaves the company.\nWelocalize will reset the password upon notification.\n5. ACTS OF EMPLOYEES, FT AL.\nEach party shall be responsible for the acts or failures to act of its respective employees, including in Supplier's case, any ex-employee possessed of\nidentification names and passwords as contemplated by Section 4 above,\n6. RETURN OF CONFIDENTIAL INFORMATION\nUpon the expiration or termination of this Agreement or upon the earlier demand of the other party, each party agrees to return to the other all of the documents,\nsoftware source code, translation memory databases (TMs), discs, files, printed materials and other Confidential Information provided hereunder, and all copies\nthereof.\n7. RIGHT TO DISCLOSE; NO LICENSE\nEach party warrants to the other that it has the unqualified right to disclose to each other the Confidential Information disclosed hereunder. All such Confidential\nInformation will remain the property of the disclosing party and the receiving party will not acquire any rights to that confidential information. No license or other\nrights in and to Confidential Information is granted hereunder and neither of the parties hereto is under any obligation to enter into any business/technical\narrangement or agreement with the other party by virtue of this Agreement or any disclosure hereunder, or in fact to make any disclosure hereunder. In particular,\nthis Agreement does not grant any right or license, express or implied, to use Confidential Information except as permitted by this Agreement, nor any right to\nlicense, express or implied, under any patent, nor any right to purchase, distribute or sell any product.\n8. CLIENT CONTACT\nExcept where expressly authorized by Welocalize, the Supplier shall not contact any client for whom it is performing work through Welocalize.\n2\nCONFIDENTIAL AND PROPRIETARY\nWelocalize, Inc\n9. NOTIFICATION OF PARTNER OWNERSHIP CHANGE . In the event of a change in ownership of the Supplier pursuant to which the group of equity owners\npossessing a majority of the equity interests of the company immediately prior to the change, fails to possess a majority after the change, the Supplier shall\nimmediately notify Welocalize in writing about the change. This applies regardless of context and regardless of the corporate form of Supplier — e .g . , it applies to\npartnerships, acquisitions, mergers and/or the bringing in of new investors, etc.\n10. ASSIGNMENT . Neither party shall assign this Agreement (directly, indirectly, or by operation of law as the result of a merger, sale of equity interest or\notherwise) without the other party's consent, and any attempt to do so shall be void. Notwithstanding the foregoing, however, a party shall have the right to assign\nthis Agreement to an affiliate, provided the affiliate agrees in writing to be bound by the terms of this Agreement, and provided that such assignment shall not\nrelease the assigning party from its obligations hereunder.\n11. NON-HIRING. During any period in which this Agreement is effective, and for twelve (12) months thereafter, neither party will solicit any employee of the other\nparty for the purposes of offering employment. Each party shall promptly notify the other of any communications with any personnel regarding employment.\n12. NON-SOLICITATION . During the term of this Agreement and for twelve (12) months thereafter, the Supplier agrees that it will not directly or indirectly\napproach any Customer Company for whom it is providing Services with the intention of providing such Services, or similar services, directly to the Customer\nCompany. All communication on projects and on the Services will be through Welocalize project manager unless otherwise authorized by Welocalize in writing.\nThe Supplier will promptly notify Welocalize if the Supplier is approached directly or indirectly by the Customer Company to perform the work for which it has been\nengaged by Welocalize to perform for Customer Company, or by a competitor of Welocalize to perform the work for which it has been engaged by Welocalize to\nperform for Customer Company. This restriction does not apply with respect to any service engagement between the Supplier (either directly or through other\nMLVs) to a Customer Company in effect prior to the date of this Agreement.\n13. PARTNER COMPLIANCE WITH LAWS . The Supplier shall not take any action, or fail to warn Welocalize not to take any action when Supplier is possessed\nof advance knowledge of Welocalize's intended action, where such action or failure to warn may cause Welocalize to be in violation of any law in any jurisdiction\nin any service area, or the U.S . , Including but not limited to the U.S . Foreign Corrupt Practices Act of 1977 as amended, the U.S. Export Control Laws and the\nU.S . Anti-Boycott laws.\n14. INDEMNIFICATION; EQUITABLE RELIEF. The Supplier shall reimburse and indemnify Welocalize for any losses or damages incurred by it as a result of any\nbreach by the Supplier of this Agreement. The Supplier acknowledges that monetary damages may not be an adequate remedy for a breach of this agreement by\nthe Supplier and, consequently, that an injunction and/or other appropriate equitable relief may be obtained to remedy a breach or threatened breach hereof.\n15. TERM. This Agreement commences on the Effective Date for an initial period of one year and shall automatically renew on each anniversary of the Effective\nDate for successive one-year periods, unless neither party has disclosed any Confidential Information to the other party within the prior six (6) months.\nNotwithstanding the foregoing, the obligations of confidentiality set forth in this Agreement shall survive expiration of the Agreement for a period equal to the\nlonger of (a) three (3) years following the last disclosure of Confidential Information made hereunder or, (b) if the Confidential Information constitutes a trade\nsecret under applicable law, for such time as it remains a trade secret. Nothing in this Agreement shall be construed so as to require either party to disclose any\nparticular Confidential Information to the other.\n16. CHOICE OF LAW . This Agreement shall be governed in accordance with the laws of the State of Maryland, United States of America, excluding principles of\nconflict of laws. Each party agrees and consents to venue and jurisdiction in connection with any action arising hereunder, or in connection herewith, solely within\nthe state courts sitting in Frederick County or Montgomery County, Maryland or, if a federal action, the federal District Court for the District of Maryland, in each\ncase at the option of Welocalize.\n3\nCONFIDENTIAL AND PROPRIETARY\nWelocalize, Inc\n17. MISCELLANEOUS . This Agreement constitutes the entire agreement between the parties hereto and supersedes and cancels any prior agreements or\ncommunications, whether oral or written, between the Parties hereto relating to the subject matter hereof. This Agreement may not be changed, waived,\ndischarged or terminated orally, but only by an agreement in writing signed by the party against which the enforcement of such change, waiver, discharge or\ntermination is sought. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which shall be\ndeemed to be one and the same instrument.\nIN WITNESS HEREOF, the parties hereto by their duly authorized representatives have executed this Agreement as of the date first written above.\nDate: __09/10/07__\nDate: __12/19/07__\nAccepted by:\nAccepted by:\nWelocalize Inc.\nTargetek Co., Ltd.\n(Company Name)\n(Company Name)\n/s/ Olga Blasco\n/s/ Wen-Hui Lee\n(Signature)\n(Signature)\nOlga Blasco\nLee, Wen-Hui\n(Name)\n(Name Printed)\nDirector, Global Language Services\nApproved Contract Officer\n(Title)\n(Title)\n52-2212421\n(Federal ID#)\n(Federal ID# or Tax ID)\n241 East 4th Street. Suite 207\n11F, No. 216, Sec. 2,\nFrederick. Maryland 21701\nNanjina E. Rd. , Taipei 10489. Taiwan\n(Address)\n(Address)\n4	CONFIDENTIAL AND PROPRIETARY\nWelocalize, Inc\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NO N-DISC LOSURE AGREEMENT (the "Agreement"), is made this 19th day of December, 2007 by and between Welocalize, Inc., a Delaware\nCorporation ("Welocalize"), and Targetek Co., Ltd. ("Supplier").\nWHE REAS, the Supplier will provide certain specialized sen/ices to include software development, translation, localization and globalization consulting (the\n"Sen/ices") for customers of Welocalize (each, a "C ustomer Company") or for Welocalize and,\nWHE REAS, the Supplier will need to have access to certain proprietary technology and materials (including methodologies, translation memory databases,\nsoftware programs and source code, identification names and passwords, documentation and/or marketing materials or other business information) in order to\nevaluate is strategy for delivering the Services and for actually delivering the Sen/ices; and,\nWHE REAS, the Supplier and Welocalize consider such documens, identification names and passwords, records, translation memory databases and information\npertaining to producs confidential and do notwant them disclosed to third parties;\nNOW, THEREFORE IN CONSIDERATION ofthe mutual covenants and conditions herein contained, the parties agree as follows:\n1. OBLIGATION NOT TO USE OR DISCLOSE\nBoth parties agree to keep confidential all information concerning the other party's business or is ideas, producs, customers or services thatcould be considered\nto be "Confidential Information," as such term is defined herein.\nThe receiving party will not, during or subsequent to the term ofthis Agreement, use the Confidential Information for any purpose whasoever other than the\nperformance of the Sen/ices for the benefit of Welocalize, or disclose Confidential Information to any third party other than is employees or subcontractors who\nhave a need to have access to and knowledge ofthe Confidential Information solely in connection with the performance of Sen/ices hereunder.\nPrior to disclosure, the receiving party shall have entered into non-disclosure agreemens with such employees and subcontractors having obligations of\nconfidentiality as strict as those contained in this Section, to ensure against unauthorized use or disclosure ofConfidential Information.\n2. DEFINITION OF CONFIDENTIAL INFORMATION\n"Confidential Information" shall be deemed to include any technology, proprietary information, technical data, trade secres and/or know-how, including, without\nlimitation, research, product plans, producs, sen/ices, customers, customer liss, pricing, revenue, markes, software, developmens, inventions, processes,\nformulas, technology, designs, drawings, engineering, hardware configuration information, methodologies, translation memory databases, software programs and\nsource code including those licensed by Welocalize and made available to Supplier for the purpose offacilitating Supplier's performance ofservices for\nWelocalize's or is customers' benefit, identification names and passwords, documentation, proprietary information belonging to third-party Welocalize customers\nor licensors, and/or marketing, finances or other business information, disclosed by the disclosing party either directly or indirectly in writing, orally, electronically,\nor by drawings or inspection of pars or equipment, including but not limited to any work product delivered hereunder, and other such information which, by is\nnature, is normally understood to be confidential.\n \nCONFIDENTIAL AND PROPRIETARY\nWelocalize, Inc\n3. EXCLUSIONS\nThe obligations described in Section 1 shall not extend to the following:\nConfidential Information which at the time of\ndisclosure is in the public domain\nConfidential Information which after generation or\ndisclosure is published or othenNise becomes part of\nthe public domain through no fault of the receiving\nparty (butonly after and to the extentthat it is\npublished or otherwise becomes part of the public\ndomain)\nConfidential Information which either party can show\nwas in its possession at the time of generation or\n. disclosure and was not acquired, directly or indirectly,\nfrom the other party or from a third party under an\nobligation of confidence\nConfidential Information which was received after the\ntime of generation or disclosure hereunder, from a\nthird party who did not require that party to hold it in\nconfidence and who did not acquire it, directly or\nindirectly, from the other party under an obligation of\nconfidence; and\nConfidential Information which the receiving party can\nshow was developed independently without benefit of,\nor being based on, information generated hereunder\nor made available by the other party\n4. STANDARD OF CARE\nEach party shall exercise at leastsuch care in protection ofthe confidential information ofthe other as they exercise in the protection ofConfidential Information\nof their own, but in no eventshall such party exercise less than reasonable care in doing so.\nIt is the Supplier's responsibility to notify Welocalize if and when an employee with access to their identification names and passwords leaves the company.\nWelocalize will reset the password upon notification.\n5.ACTS OF EMPLOYEES, FT AL.\nEach party shall be responsible for the acts or failures to act of its respective employees, including in Supplier's case, any ex-employee possessed of\nidentification names and passwords as contemplated by Section 4 above,\n6. RETURN OF CONFIDENTIAL INFORMATION\nUpon the expiration or termination of this Agreement or upon the earlier demand of the other party, each party agrees to return to the other all of the documents,\nsoftware source code, translation memory databases (TMs), discs, files, printed materials and other Confidential Information provided hereunder, and all copies\nthereof.\n7. RIGHT TO DISCLOSE; NO LICENSE\nEach party warrants to the other that it has the unqualified right to disclose to each other the Confidential Information disclosed hereunder. All such Confidential\nInformation will remain the property ofthe disclosing party and the receiving party will not acquire any rights to thatconfidential information. No license or other\nrights in and to Confidential Information is granted hereunder and neither ofthe parties hereto is under any obligation to enter into any business/technical\narrangement or agreementwith the other party by virtue ofthis Agreementor any disclosure hereunder, or in factto make any disclosure hereunder. In particular,\nthis Agreement does notgrant any right or license, express or implied, to use Confidential Information except as permitted by this Agreement, nor any rightto\nlicense, express or implied, under any patent, nor any right to purchase, distribute or sell any product.\n8. CLIENT CONTACT\nExceptwhere expressly authorized by Welocalize, the Supplier shall not contact any client for whom it is performing work through Welocalize.\n \nCONFIDENTIAL AND PROPRIETARY\nWelocalize, Inc\n9. NOTIFICATION OF PARTN E R OWNE RSHIP C HANGE. In the eventof a change in ownership ofthe Supplier pursuant to which the group of equity owners\npossessing a majority of the equity interests of the company immediately prior to the change, fails to possess a majority after the change, the Supplier shall\nimmediately notify Welocalize in writing aboutthe change. This applies regardless of context and regardless of the corporate form of Supplier — e.g., it applies to\npartnerships, acquisitions, mergers and/or the bringing in of new investors, etc.\n10. ASSIGN ME NT. Neither party shall assign this Agreement (directly, indirectly, or by operation of law as the result of a merger, sale ofequity interestor\nothenNise) without the other party's consent, and any attempt to do so shall be void. Notwithstanding the foregoing, however, a party shall have the rightto assign\nthis Agreement to an affiliate, provided the affiliate agrees in writing to be bound by the terms of this Agreement, and provided that such assignment shall not\nrelease the assigning party from its obligations hereunder.\n11. NO N-HIRING. During any period in which this Agreement is effective, and for twelve (12) months thereafter, neither party will solicit any employee ofthe other\nparty for the purposes ofoffering employment. Each party shall promptly notify the other of any communications with any personnel regarding employment.\n12. NO N-SOLIC ITATION. During the term ofthis Agreement and for twelve (12) months thereafter, the Supplier agrees that itwill not directly or indirectly\napproach any Customer Company for whom it is providing Sen/ices with the intention of providing such Services, or similar sen/ices, directly to the Customer\nCompany. All communication on projects and on the Services will be through Welocalize project manager unless othenNise authorized by Welocalize in writing.\nThe Supplier will promptly notify Welocalize if the Supplier is approached directly or indirectly by the Customer Company to perform the work for which it has been\nengaged by Welocalize to perform for Customer Company, or by a competitor of Welocalize to perform the work for which it has been engaged by Welocalize to\nperform for Customer Company. This restriction does not apply with respect to any service engagement between the Supplier (either directly or through other\nMLVs) to a Customer Company in effect prior to the date of this Agreement.\n13. PARTN E R COMP LIANC E WITH LAWS. The Supplier shall not take any action, or fail to warn Welocalize not to take any action when Supplier is possessed\nof advance knowledge ofWelocalize's intended action, where such action or failure to warn may cause Welocalize to be in violation of any law in anyjurisdiction\nin any sen/ice area, orthe U.S., Including butnotlimited to the US. Foreign Corrupt Practices Actof 1977 as amended, the US. Export Control Laws and the\nUS. Anti-Boycottlaws.\nl4. INDEMNIFICATION; EOUITAB LE RELIEF. The Supplier shall reimburse and indemnify Welocalize for any losses or damages incurred by itas a result of any\nbreach by the Supplier of this Agreement. The Supplier acknowledges that monetary damages may not be an adequate remedy for a breach of this agreement by\nthe Supplier and, consequently, that an injunction and/or other appropriate equitable relief may be obtained to remedy a breach or threatened breach hereof.\n15. TE RM. This Agreementcommences on the Effective Date for an initial period of one year and shall automatically renew on each anniversary of the Effective\nDate for successive one-year periods, unless neither party has disclosed any Confidential Information to the other party within the prior six (6) months.\nNotwithstanding the foregoing, the obligations ofconfidentiality set forth in this Agreementshall sun/ive expiration of the Agreementfor a period equal to the\nlonger of (a) three (3) years following the lastdisclosure of Confidential Information made hereunder or, (b) if the Confidential Information constitutes a trade\nsecret under applicable law, for such time as it remains a trade secret. Nothing in this Agreement shall be construed so as to require either party to disclose any\nparticular Confidential Information to the other.\n16. CHOIC E OF LAW. This Agreement shall be governed in accordance with the laws of the State of Maryland, United States ofAmerica, excluding principles of\nconflict of laws. Each party agrees and consents to venue and jurisdiction in connection with any action arising hereunder, or in connection herewith, solely within\nthe state courts sitting in Frederick County or Montgomery County, Maryland or, if a federal action, the federal DistrictCourtfor the Districtof Maryland, in each\ncase atthe option ofWelocalize.\n \nCONFIDENTIAL AND PROPRIETARY\nWelocalize, Inc\n17. MISC E LLAN EOUS. This Agreementconstitutes the entire agreement between the parties hereto and supersedes and cancels any prior agreements or\ncommunications, whether oral or written, between the Parties hereto relating to the subject matter hereof. This Agreement may not be changed, waived,\ndischarged or terminated orally, butonly by an agreement in writing signed by the party against which the enforcement ofsuch change, waiver, discharge or\ntermination is sought. This Agreement may be executed in any number of counterparts, each ofwhich shall be deemed an original, and all of which shall be\ndeemed to be one and the same instrument.\nIN WITN ESS HE REOF, the parties hereto by their duly authorized representatives have executed this Agreement as of the date firstwritten above.\nDate: __09/10/07__ Date: __12/19/07__\nAccepted by: Accepted by:\nWelocalize Inc. Targetek Co., Ltd.\n(Company Name) (Company Name)\n/s/Olga Blasco /s/Wen-Hui Lee\n(Signature) (Signature)\nOlga Blasco Lee, Wen-Hui\n(Name) (Name Printed)\nDirector, Global Language Services Approved ContractOf'ficer\n(Title) (Title)\n52-2212421\n(Federal ID#) (Federal ID#or Tax ID)\n241 East 4th Street. Suite 207 11F, No. 216, Sec. 2,\nFrederick. Maryland 21701 Nanjina E. Rd., Taipei 10489. Taiwan\n(Address) (Address)\n	CONFIDENTIAL AND PROPRIETARY\nWelocalize, Inc\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (the "Agreement"), is made this 19th day of December, 2007 by and between Welocalize, Inc., a Delaware\nCorporation ("Welocalize"), and Targetek Co., Ltd. ("Supplier").\nWHEREAS, the Supplier will provide certain specialized services to include software development, translation, localization and globalization consulting (the\n"Services") for customers of Welocalize (each, a "Customer Company") or for Welocalize and,\nWHEREAS, the Supplier will need to have access to certain proprietary technology and materials (including methodologies, translation memory databases,\nsoftware programs and source code, identification names and passwords, documentation and/or marketing materials or other business information) in order to\nevaluate its strategy for delivering the Services and for actually delivering the Services; and,\nWHEREAS, the Supplier and Welocalize consider such documents, identification names and passwords, records, translation memory databases and information\npertaining to products confidential and do not want them disclosed to third parties;\nNOW, THEREFORE IN CONSIDERATION of the mutual covenants and conditions herein contained, the parties agree as follows:\n1. OBLIGATION NOT TO USE OR DISCLOSE\nBoth parties agree to keep confidential all information concerning the other party's business or its ideas, products, customers or services that could be considered\nto be "Confidential Information," as such term is defined herein.\nThe receiving party will not, during or subsequent to the term of this Agreement, use the Confidential Information for any purpose whatsoever other than the\nperformance of the S ervices for the benefit of Welocalize, or disclose Confidential Information to any third party other than its employees or subcontractors who\nhave a need to have access to and knowledge of the Confidential Information solely in connection with the performance of Services hereunder.\nP rior to disclosure, the receiving party shall have entered into non-disclosure agreements with such employees and subcontractors having obligations of\nconfidentiality as strict as those contained in this Section to ensure against unauthorized use or disclosure of Confidential Information.\n2. DEFINITION OF CONFIDENTIAL INFORMATION\n"Confidential Information" shall be deemed to include any technology, proprietary information, technical data, trade secrets and/or know-how, including, without\nlimitation, research, product plans, products, services, customers, customer lists, pricing, revenue, markets, software, developments, inventions, processes,\nformulas, technology, designs, drawings, engineering, hardware configuration information, methodologies, translation memory databases, software programs and\nsource code including those licensed by Welocalize and made available to s upplier for the purpose of facilitating Supplier's performance of services for\nWelocalize's or its customers' benefit, identification names and passwords documentation, proprietary information belonging to third-party Welocalize customers\nor licensors, and/or marketing, finances or other business information, disclosed by the disclosing party either directly or indirectly in writing, orally, electronically,\nor by drawings or inspection of parts or equipment, including but not limited to any work product delivered hereunder, and other such information which, by its\nnature, is normally understood to be confidential.\n1\nCONFIDENTIAL AND PROPRIETARY\nWelocalize, Inc\n3. EXCLUSIONS\nThe obligations described in Section 1 shall not extend to the following:\nConfidential Information which at the time of\ndisclosure is in the public domain\nConfidential Information which after generation or\ndisclosure is published or otherwise becomes part of\nthe public domain through no fault of the receiving\nparty (but only after and to the extent that it is\npublished or otherwise becomes part of the public\ndomain)\nConfidential Information which either party can show\nwas in its possession at the time of generation or\ndisclosure and was not acquired, directly or indirectly,\nfrom the other party or from a third party under an\nobligation of confidence\nConfidential Information which was received after the\ntime of generation or disclosure hereunder, from a\nthird party who did not require that party to hold it in\nconfidence and who did not acquire it, directly or\nindirectly, from the other party under an obligation of\nconfidence; and\nConfidential Information which the receiving party can\nshow was developed independently without benefit of,\nor being based on, information generated hereunder\nor made available by the other party\n4. STANDARD OF CARE\nEach party shall exercise at least such care in protection of the confidential information of the other as they exercise in the protection of Confidential Information\nof their own, but in no event shall such party exercise less than reasonable care in doing so.\nIt is the Supplier's responsibility to notify Welocalize if and when an employee with access to their identification names and passwords leaves the company.\nWelocalize will reset the password upon notification.\n5. ACTS OF EMPLOYEES, FT AL.\nEach party shall be responsible for the acts or failures to act of its respective employees, including in Supplier's case, any ex-employee possessed of\nidentification names and passwords as contemplated by Section 4 above,\n6. RETURN OF CONFIDENTIAL INFORMATION\nUpon the expiration or termination of this Agreement or upon the earlier demand of the other party, each party agrees to return to the other all of the documents,\nsoftware source code, translation memory databases (TMs), discs, files, printed materials and other Confidential Information provided hereunder, and all copies\nthereof.\n7. RIGHT TO DISCLOSE; NO LICENSE\nEach party warrants to the other that it has the unqualified right to disclose to each other the Confidential Information disclosed hereunder. All such Confidentia\nInformation will remain the property of the disclosing party and the receiving party will not acquire any rights to that confidential information. No license or other\nrights in and to Confidential Information is granted hereunder and neither of the parties hereto is under any obligation to enter into any business/technical\narrangement or agreement with the other party by virtue of this Agreement or any disclosure hereunder, or in fact to make any disclosure hereunder. In particular,\nthis Agreement does not grant any right or license, express or implied, to use Confidential Information except as permitted by this Agreement, nor any right to\nlicense, express or implied, under any patent, nor any right to purchase, distribute or sell any product.\n8. CLIENT CONTACT\nExcept where expressly authorized by Welocalize, the Supplier shall not contact any client for whom it is performing work through Welocalize.\n2\nCONFIDENTIAL AND PROPRIETARY\nWelocalize, Inc\n9. NOTIFICATION OF PARTNER OWNERSHIP CHANGE. In the event of a change in ownership of the Supplier pursuant to which the group of equity owners\npossessing a majority of the equity interests of the company immediately prior to the change, fails to possess a majority after the change, the S upplier shall\nimmediately notify Welocalize in writing about the change. This applies regardless of context and regardless of the corporate form of s upplier e.g., it applies to\npartnerships, acquisitions, mergers and/or the bringing in of new investors, etc.\n10 ASSIGNMENT. Neither party shall assign this Agreement (directly, indirectly, or by operation of law as the result of a merger, sale of equity interest or\notherwise) without the other party's consent, and any attempt to do so shal be void. Notwithstanding the foregoing, however, a party shall have the right\nto\nassign\nthis Agreement to an affiliate, provided the affiliate agrees in writing to be bound by the terms of this Agreement, and provided that such assignment shall not\nrelease the assigning party from its obligations hereunder.\n11. NON-HIRING. During any period in which this Agreement is effective, and for twelve (12) months thereafter, neither party will solicit any employee of the other\nparty for the purposes of offering employment. Each party shall promptly notify the other of any communications with any personnel regarding employment.\n12. NON-SOLICITATION. During the term of this Agreement and for twelve (12) months thereafter, the s upplier agrees that it will not directly or indirectly\napproach any Customer Company for whom it is providing Services with the intention of providing such Services, or similar services, directly to the Customer\nCompany. All communication on projects and on the Services will be through Welocalize project manager unless otherwise authorized by Welocalize in writing\nThe Supplier will promptly notify Welocalize if the S upplier is approached directly or indirectly by the Customer Company to perform the work for which it has been\nengaged by Welocalize to perform for Customer Company, or by a competitor of Welocalize to perform the work for which it has been engaged by Welocalize to\nperform for Customer Company. This restriction does not apply with respect to any service engagement between the S upplier (either directly or through other\nMLVs) to a Customer Company in effect prior to the date of this Agreement.\n13.\nPARTNER COMPLIANCE WITH LAWS. The Supplier shall not take any action, or fail to warn Welocalize not to take any action when Supplier is possessed\nof advance knowledge of Welocalize's intended action, where such action or failure to warn may cause Welocalize to be in violation of any law in any jurisdiction\nin any service area, or the U.S., Including but not limited to the U.S. oreign Corrupt ractices Act of 1977 as amended, the U.S. xport Control Laws and the\nU.S. Anti-Boycott\n14.\nINDEMNIFICATION; EQUITABLE RELIEF. The Supplier shall reimburse and indemnify Welocalize for any losses or damages incurred by it as a result of any\nbreach by the Supplier of this Agreement. The Supplier acknowledges that monetary damages may not be an adequate remedy for a breach of this agreement by\nthe S upplier and, consequently, that an injunction and/or other appropriate equitable relief may be obtained to remedy a breach or threatened breach hereof.\n15. TERM. This Agreement commences on the ffective Date for an initial period of one year and shall automatically renew on each anniversary of the E Effective\nDate for successive one-year periods, unless neither party has disclosed any Confidential Information to the other party within the prior six (6) months.\nNotwithstanding the foregoing, the obligations of confidentiality set forth in this Agreement shall survive expiration of the Agreement for a period equal to the\nlonger of (a) three (3) years following the last disclosure of Confidential Information made hereunder or, (b) if the Confidential Information constitutes a trade\nsecret under applicable law, for such time as it remains a trade secret. Nothing in this Agreement shall be construed so as to require either party to disclose any\nparticular Confidential Information to the other.\n16. CHOICE OF LAW. This Agreement shall be governed in accordance with the laws of the State of Maryland, United States of America, excluding principles of\nconflict of laws. Each party agrees and consents to venue and jurisdiction in connection with any action arising hereunder, or in connection herewith, solely within\nthe state courts sitting in F rederick County or Montgomery County, Maryland or, if a federal action, the federal District Court for the District of Maryland, in each\ncase at the option of Welocalize.\n3\nCONFIDENTIAL AND PROPRIETARY\nWelocalize, Inc\n17. MISCELLANEOUS. This Agreement constitutes the entire agreement between the parties hereto and supersedes and cancels any prior agreements or\ncommunications, whether oral or written, between the arties hereto relating to the subject matter hereof. This Agreement may not be changed, waived,\ndischarged or terminated orally, but only by an agreement in writing signed by the party against which the enforcement of such change, waiver, discharge or\ntermination is sought. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which shall be\ndeemed to be one and the same instrument.\nIN WITNESS HEREOF, the parties hereto by their duly authorized representatives have executed this Agreement as of the date first written above.\nDate: 09/10/07\nDate: 12/19/07\nAccepted by:\nAccepted by:\nWelocalize Inc.\nTargetek Co., Ltd.\n(Company Name)\n(Company Name)\n/s/ Olga Blasco\n/s/ Wen-Hui Lee\n(Signature)\n(Signature)\nOlga Blasco\nLee, Wen-Hui\n(Name)\n(Name Printed)\nDirector, Globa Language Services\nApproved Contract Officer\n(Title)\n(Title)\n52-2212421\n(Federal ID#)\n(Federa ID # or Tax ID)\n241 East 4th Street. Suite 207\n11F, No. 216, Sec. 2,\nFrederick. Maryland 21701\nNanjina E. Rd., Taipei 10489. Taiwan\n(Address)\n(Address)\n4	CONFIDENTIAL AND PROPRIETARY\nWelocalize, Inc\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (the "Agreement"), is made this 19th day of December, 2007 by and between Welocalize, Inc. , a Delaware\nCorporation ("Welocalize"), and Targetek Co. , Ltd. ("Supplier").\nWHEREAS, the Supplier will provide certain specialized services to include software development, translation, localization and globalization consulting (the\n"Services") for customers of Welocalize (each, a "Customer Company") or for Welocalize and,\nWHEREAS, the Supplier will need to have access to certain proprietary technology and materials (including methodologies, translation memory databases,\nsoftware programs and source code, identification names and passwords, documentation and/or marketing materials or other business information) in order to\nevaluate its strategy for delivering the Services and for actually delivering the Services; and,\nWHEREAS, the Supplier and Welocalize consider such documents, identification names and passwords, records, translation memory databases and information\npertaining to products confidential and do not want them disclosed to third parties;\nNOW, THEREFORE IN CONSIDERATION of the mutual covenants and conditions herein contained, the parties agree as follows:\n1. OBLIGATION NOT TO USE OR DISCLOSE\nBoth parties agree to keep confidential all information concerning the other party's business or its ideas, products, customers or services that could be considered\nto be "Confidential Information," as such term is defined herein.\nThe receiving party will not, during or subsequent to the term of this Agreement, use the Confidential Information for any purpose whatsoever other than the\nperformance of the Services for the benefit of Welocalize, or disclose Confidential Information to any third party other than its employees or subcontractors who\nhave a need to have access to and knowledge of the Confidential Information solely in connection with the performance of Services hereunder.\nPrior to disclosure, the receiving party shall have entered into non-disclosure agreements with such employees and subcontractors having obligations of\nconfidentiality as strict as those contained in this Section, to ensure against unauthorized use or disclosure of Confidential Information.\n2. DEFINITION OF CONFIDENTIAL INFORMATION\n"Confidential Information" shall be deemed to include any technology, proprietary information, technical data, trade secrets and/or know-how, including, without\nlimitation, research, product plans, products, services, customers, customer lists, pricing, revenue, markets, software, developments, inventions, processes,\nformulas, technology, designs, drawings, engineering, hardware configuration information, methodologies, translation memory databases, software programs and\nsource code including those licensed by Welocalize and made available to Supplier for the purpose of facilitating Supplier's performance of services for\nWelocalize's or its customers' benefit, identification names and passwords, documentation, proprietary information belonging to third-party Welocalize customers\nor licensors, and/or marketing, finances or other business information, disclosed by the disclosing party either directly or indirectly in writing, orally, electronically,\nor by drawings or inspection of parts or equipment, including but not limited to any work product delivered hereunder, and other such information which, by its\nnature, is normally understood to be confidential.\n1\nCONFIDENTIAL AND PROPRIETARY\nWelocalize, Inc\n3. EXCLUSIONS\nThe obligations described in Section 1 shall not extend to the following:\n•\nConfidential Information which at the time of\ndisclosure is in the public domain\n•\nConfidential Information which after generation or\ndisclosure is published or otherwise becomes part of\nthe public domain through no fault of the receiving\nparty (but only after and to the extent that it is\npublished or otherwise becomes part of the public\ndomain)\n•\nConfidential Information which either party can show\nwas in its possession at the time of generation or\ndisclosure and was not acquired, directly or indirectly,\nfrom the other party or from a third party under an\nobligation of confidence\n•\nConfidential Information which was received after the\ntime of generation or disclosure hereunder, from a\nthird party who did not require that party to hold it in\nconfidence and who did not acquire it, directly or\nindirectly, from the other party under an obligation of\nconfidence; and\n•\nConfidential Information which the receiving party can\nshow was developed independently without benefit of,\nor being based on, information generated hereunder\nor made available by the other party\n4. STANDARD OF CARE\nEach party shall exercise at least such care in protection of the confidential information of the other as they exercise in the protection of Confidential Information\nof their own, but in no event shall such party exercise less than reasonable care in doing so.\nIt is the Supplier's responsibility to notify Welocalize if and when an employee with access to their identification names and passwords leaves the company.\nWelocalize will reset the password upon notification.\n5. ACTS OF EMPLOYEES, FT AL.\nEach party shall be responsible for the acts or failures to act of its respective employees, including in Supplier's case, any ex-employee possessed of\nidentification names and passwords as contemplated by Section 4 above,\n6. RETURN OF CONFIDENTIAL INFORMATION\nUpon the expiration or termination of this Agreement or upon the earlier demand of the other party, each party agrees to return to the other all of the documents,\nsoftware source code, translation memory databases (TMs), discs, files, printed materials and other Confidential Information provided hereunder, and all copies\nthereof.\n7. RIGHT TO DISCLOSE; NO LICENSE\nEach party warrants to the other that it has the unqualified right to disclose to each other the Confidential Information disclosed hereunder. All such Confidential\nInformation will remain the property of the disclosing party and the receiving party will not acquire any rights to that confidential information. No license or other\nrights in and to Confidential Information is granted hereunder and neither of the parties hereto is under any obligation to enter into any business/technical\narrangement or agreement with the other party by virtue of this Agreement or any disclosure hereunder, or in fact to make any disclosure hereunder. In particular,\nthis Agreement does not grant any right or license, express or implied, to use Confidential Information except as permitted by this Agreement, nor any right to\nlicense, express or implied, under any patent, nor any right to purchase, distribute or sell any product.\n8. CLIENT CONTACT\nExcept where expressly authorized by Welocalize, the Supplier shall not contact any client for whom it is performing work through Welocalize.\n2\nCONFIDENTIAL AND PROPRIETARY\nWelocalize, Inc\n9. NOTIFICATION OF PARTNER OWNERSHIP CHANGE . In the event of a change in ownership of the Supplier pursuant to which the group of equity owners\npossessing a majority of the equity interests of the company immediately prior to the change, fails to possess a majority after the change, the Supplier shall\nimmediately notify Welocalize in writing about the change. This applies regardless of context and regardless of the corporate form of Supplier — e .g . , it applies to\npartnerships, acquisitions, mergers and/or the bringing in of new investors, etc.\n10. ASSIGNMENT . Neither party shall assign this Agreement (directly, indirectly, or by operation of law as the result of a merger, sale of equity interest or\notherwise) without the other party's consent, and any attempt to do so shall be void. Notwithstanding the foregoing, however, a party shall have the right to assign\nthis Agreement to an affiliate, provided the affiliate agrees in writing to be bound by the terms of this Agreement, and provided that such assignment shall not\nrelease the assigning party from its obligations hereunder.\n11. NON-HIRING. During any period in which this Agreement is effective, and for twelve (12) months thereafter, neither party will solicit any employee of the other\nparty for the purposes of offering employment. Each party shall promptly notify the other of any communications with any personnel regarding employment.\n12. NON-SOLICITATION . During the term of this Agreement and for twelve (12) months thereafter, the Supplier agrees that it will not directly or indirectly\napproach any Customer Company for whom it is providing Services with the intention of providing such Services, or similar services, directly to the Customer\nCompany. All communication on projects and on the Services will be through Welocalize project manager unless otherwise authorized by Welocalize in writing.\nThe Supplier will promptly notify Welocalize if the Supplier is approached directly or indirectly by the Customer Company to perform the work for which it has been\nengaged by Welocalize to perform for Customer Company, or by a competitor of Welocalize to perform the work for which it has been engaged by Welocalize to\nperform for Customer Company. This restriction does not apply with respect to any service engagement between the Supplier (either directly or through other\nMLVs) to a Customer Company in effect prior to the date of this Agreement.\n13. PARTNER COMPLIANCE WITH LAWS . The Supplier shall not take any action, or fail to warn Welocalize not to take any action when Supplier is possessed\nof advance knowledge of Welocalize's intended action, where such action or failure to warn may cause Welocalize to be in violation of any law in any jurisdiction\nin any service area, or the U.S . , Including but not limited to the U.S . Foreign Corrupt Practices Act of 1977 as amended, the U.S. Export Control Laws and the\nU.S . Anti-Boycott laws.\n14. INDEMNIFICATION; EQUITABLE RELIEF. The Supplier shall reimburse and indemnify Welocalize for any losses or damages incurred by it as a result of any\nbreach by the Supplier of this Agreement. The Supplier acknowledges that monetary damages may not be an adequate remedy for a breach of this agreement by\nthe Supplier and, consequently, that an injunction and/or other appropriate equitable relief may be obtained to remedy a breach or threatened breach hereof.\n15. TERM. This Agreement commences on the Effective Date for an initial period of one year and shall automatically renew on each anniversary of the Effective\nDate for successive one-year periods, unless neither party has disclosed any Confidential Information to the other party within the prior six (6) months.\nNotwithstanding the foregoing, the obligations of confidentiality set forth in this Agreement shall survive expiration of the Agreement for a period equal to the\nlonger of (a) three (3) years following the last disclosure of Confidential Information made hereunder or, (b) if the Confidential Information constitutes a trade\nsecret under applicable law, for such time as it remains a trade secret. Nothing in this Agreement shall be construed so as to require either party to disclose any\nparticular Confidential Information to the other.\n16. CHOICE OF LAW . This Agreement shall be governed in accordance with the laws of the State of Maryland, United States of America, excluding principles of\nconflict of laws. Each party agrees and consents to venue and jurisdiction in connection with any action arising hereunder, or in connection herewith, solely within\nthe state courts sitting in Frederick County or Montgomery County, Maryland or, if a federal action, the federal District Court for the District of Maryland, in each\ncase at the option of Welocalize.\n3\nCONFIDENTIAL AND PROPRIETARY\nWelocalize, Inc\n17. MISCELLANEOUS . This Agreement constitutes the entire agreement between the parties hereto and supersedes and cancels any prior agreements or\ncommunications, whether oral or written, between the Parties hereto relating to the subject matter hereof. This Agreement may not be changed, waived,\ndischarged or terminated orally, but only by an agreement in writing signed by the party against which the enforcement of such change, waiver, discharge or\ntermination is sought. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which shall be\ndeemed to be one and the same instrument.\nIN WITNESS HEREOF, the parties hereto by their duly authorized representatives have executed this Agreement as of the date first written above.\nDate: __09/10/07__\nDate: __12/19/07__\nAccepted by:\nAccepted by:\nWelocalize Inc.\nTargetek Co., Ltd.\n(Company Name)\n(Company Name)\n/s/ Olga Blasco\n/s/ Wen-Hui Lee\n(Signature)\n(Signature)\nOlga Blasco\nLee, Wen-Hui\n(Name)\n(Name Printed)\nDirector, Global Language Services\nApproved Contract Officer\n(Title)\n(Title)\n52-2212421\n(Federal ID#)\n(Federal ID# or Tax ID)\n241 East 4th Street. Suite 207\n11F, No. 216, Sec. 2,\nFrederick. Maryland 21701\nNanjina E. Rd. , Taipei 10489. Taiwan\n(Address)\n(Address)\n4
b9bfe58b6aa5e99ced3783edcc3ce9fc.pdf	effective_date jurisdiction party	EX-10 .1 2 a13-7365_1ex10d1.htm EX-10.1\nEXHIBIT 10.1\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”), is entered into on this 11th day of March, 2013, between Ikonics Corporation, a Minnesota corporation (the “Company”), and Joseph R. Nerges, an individual resident of\nthe State of Pennsylvania (the “Shareholder”).\nRECITALS\nWHEREAS, the common stock of the Company, par value $0.10 per share (the “Common Stock”), is the only authorized and issued voting security of the Company;\nWHEREAS, the Common Stock is traded in the Nasdaq Capital Market under the ticker symbol IKNX;\nWHEREAS, the Shareholder is the Company’s largest shareholder and is an “affiliate” as such term is defined under the Exchange Act;\nWHEREAS, the Shareholder has requested that the Company disclose material, nonpublic information regarding the Company and its Common Stock to the Shareholder; and\nWHEREAS, the Company is willing to disclose to the Shareholder certain material, nonpublic information regarding the Company or its Common Stock subject to and in accordance with the terms and conditions set forth\nin this Agreement.\nAGREEMENT\nNOW, THEREFORE, in view of the foregoing, the Parties agree as follows:\n1.\nCertain Definitions. As used herein:\n(a)\n“ Confidential Information” means any information regarding the Company or its Common Stock, whether in written, electronic or oral form, including data, reports, interpretations, forecasts,\nrecords, statements, documents and information of any kind concerning the Company or any of its subsidiaries which the Company or any of its Representatives provides to the Shareholder; provided, however, that “Confidential\nInformation” shall not include information that (i) has become available to the public other than as a result of a disclosure by the Shareholder or any of its Representatives, (ii) was available to the Shareholder or any of its Representatives\non a non-confidential basis prior to its disclosure to the Shareholder by the Company or any of its Representatives, (iii) has become available to the Shareholder or any of its Representatives on a non-confidential basis from a source other\nthan the Company or any of its Representatives, provided that such source is not bound by law or a confidentiality agreement in respect of such information with the Company or such Representative or otherwise prohibited from\ntransmitting such information to the Shareholder or such Representative by a contractual, legal or fiduciary obligation, or (iv) has been independently developed or acquired by the Shareholder or any of its Representatives without\nviolating any of its obligations under this Agreement.\n(b)\nThe term “person” shall mean an individual, corporation, partnership, limited liability company, association, trust, governmental entity, any other organization or entity or any group including any\nof the foregoing, and the terms “group” and “affiliate” shall have the meanings provided under the Exchange Act.\n(c)\n“ Exchange Act” means the Securities Exchange Act of 1934.\n(d)\n“Parties” means the Company and the Shareholder and “Party” means either of them.\n(e)\n“ Representative” means, in relation to any Party, such Party’s affiliates and such Party’s and its affiliates’ respective directors, officers, employees, agents or representatives, including, without\nlimitation, financial advisors, attorneys or accountants of such person.\n2.\nDisclosure of Confidential Information to the Shareholder.\n(a)\nIn light of the Shareholder’s status as the Company’s largest shareholder and as an affiliate of the Company, the Company may, in its sole discretion, disclose certain Confidential Information to the Shareholder\nwhich is initially expected to include the Company’s 2013 strategic plan and budget, a current status report on certain ongoing projects as of the date of this Agreement, and monthly financial information in the form provided to the\nCompany’s non-employee directors together with a brief narrative on such financial information from the Company’s Chief Executive Officer; provided however, that: (i) the Shareholder shall protect and maintain the confidentiality of\nany Confidential Information and shall not in any manner, directly or indirectly, disclose, in whole or in part, any Confidential Information to any person (including to the Shareholder’s Representatives), (ii) the Shareholder shall not in\nany manner, directly or indirectly, use any Confidential Information for any purpose other than analyzing the Shareholder’s investment in the Company, (iii) the Shareholder shall not, directly or indirectly, contact or have communications\nwith any person at the Company regarding any Confidential Information other than the Company’s Chief Executive Officer (currently Bill Ulland) or the Company’s Chief Financial Officer (currently Jon Gerlach), (iv) the Shareholder\nshall be subject to, and shall abide by, both the Company’s General Policy on Securities Trading by Company Employees, Agents and Advisors and the Company’s Supplemental Policy on Securities Trading by Officers, Directors and\nOther Access Personnel (including by refraining from trading in the Company’s Common Stock during all restricted trading periods described in such Supplemental Policy), copies of which have been provided to the Shareholder, and\n(v) the Shareholder shall take all steps necessary to comply with International Traffic in Arms Regulations with respect to the Confidential Information.\n(b)\nThe Shareholder acknowledges and agrees that (i) if the Company or any of its Representatives discloses to the Shareholder any Confidential Information about the Company or its Common Stock, that such\ndisclosure is being made pursuant to this Agreement and in accordance with the confidentiality agreement exclusion in Rule 100(b)(2)(ii) of Regulation FD promulgated under the Exchange Act, (ii) the Shareholder is otherwise aware of\nthe requirements of Regulation FD, and (iii) the Shareholder is aware that the United States securities laws\n2\nprohibit any person who has material, nonpublic information about a company from purchasing or selling securities of such company or from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities.\n3.\nExceptions to the Shareholder’s Confidentiality Obligations.\n(a)\nIn the event that the Shareholder is required by law, regulation or other legal process or is requested (by oral questions, interrogatories, requests for information or documents, subpoena, court\norder, civil investigative demand or other process) to disclose any Confidential Information, which disclosure is not otherwise permitted hereunder, the Shareholder shall provide the Company with prompt written notice of any such\nrequest or requirement (if legally permitted) so that the Company may seek an appropriate protective order or waive compliance with the provisions of this Agreement. If, failing the entry of a protective order or the receipt of a waiver\nhereunder, the Shareholder is, after consultation with legal counsel for the Shareholder, required or compelled to disclose Confidential Information pursuant to such request, the Shareholder may disclose that portion of the Confidential\nInformation which such counsel has advised that the Shareholder is required or compelled to disclose as aforesaid. In any event, the Shareholder will not oppose action by, and will cooperate with, the Company, at the Company’s\nexpense, in its efforts to obtain an appropriate protective order or other assurance that confidential treatment will be accorded the Confidential Information. All references to the Shareholder in this paragraph shall be deemed to include the\nShareholder’s Representatives.\n(b)\nIf at any time, in the opinion of legal counsel for the Shareholder, the Shareholder is required by law, regulation or other legal process or stock exchange or stock market rules to disclose\nConfidential Information in a context that is not covered by the immediately preceding Section 3(a), the Shareholder may disclose that portion of the Confidential Information that such counsel has advised that the Shareholder is required\nto disclose, provided that the Shareholder gives the Company prompt written notice of such disclosure (if legally permitted).\n4.\nNo Representations or Warranties. The Shareholder acknowledges and agrees that, except as expressly set forth in any definitive, written documentation, neither the Company nor any of its Representatives\nmakes any representation or warranty as to the accuracy or completeness of any Confidential Information and that neither the Company nor its Representatives shall have any liability to the Shareholder or any of its Representatives\nresulting from the use of the Confidential Information by the Shareholder.\n5.\nEquitable Remedies. The Shareholder agrees that money damages would not be a sufficient remedy for any breach of this Agreement by it or any of its Representatives and that the Company shall be entitled to\nspecific performance and injunctive or other equitable relief as remedies for any such breach. Such remedies shall not be deemed to be the exclusive remedies but shall be in addition to all other remedies available at law or in equity to the\nCompany.\n3\n6.\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws of the State of Minnesota without giving effect to its conflicts of laws principles or rules.\n7.\nTerm; Survivability; Disclosure of Agreement. Notwithstanding anything to the contrary in this Agreement, the Company is not obligated to furnish the Shareholder with any Confidential Information and the\nCompany may terminate the Shareholder’s access to any Confidential Information at any time in its sole discretion. This Agreement may be terminated by either Party for any or no reason upon written notice to the other Party and shall\nterminate immediately upon the breach of this Agreement by either Party; provided, however, that the Shareholder’s confidentiality obligations under this Agreement shall remain effective and survive the termination of this Agreement\nwith respect to any Confidential Information furnished by the Company during the term of this Agreement. This Agreement may be disclosed by either Party in a filing with the Securities and Exchange Commission if required by\napplicable law or regulation.\n8.\nMiscellaneous. This Agreement sets forth the entire agreement of the Parties with respect to the subject matter hereof. This Agreement may not be assigned, in whole or in part, by either Party without the prior\nwritten consent of the other Party. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their successors and permitted assigns. This Agreement is solely for the benefit of the Parties and may not be\nenforced by any third party. If any of the provisions of this Agreement is not enforceable in whole or in part, the remaining provisions of this Agreement shall not be affected thereby. No failure or delay in exercising any other right,\npower or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. This Agreement\nmay only be amended by the mutual written agreement of the Parties.\n[signature page follows]\n4\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first set forth above.\nCOMPANY:\nIKONICS CORPORATION\n/s/ William C. Ulland\nBy:\nBill Ulland\nTitle:\nCEO\nSHAREHOLDER:\n/s/ Joseph R. Nerges\nJoseph R. Nerges\n[Signature page to Confidentiality Agreement]	EX-10.l 2 al3-7365_leXlOdl.htm EX-10.l\nEXHIBIT 10.1\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this "Agreement"), is entered into on this 11th day of March, 2013, between Ikonics Corporation, a Minnesom corporation (the "Company"), andJoseph R. Nerges, an individual resident of\nthe State of Pennsylvania (the "Shareholder").\nRECITALS\nWHEREAS, the common stock of the Company, par value $0.10 per share (the "Common Stock"), is the only authorized and issued voting security of the Company;\nWHEREAS, the Common Stock is traded in the Nasdaq Capital Market under the ticker symbol IKNX ,-\nWHEREAS, the Shareholder is the Company’s largest shareholder and is an ”affiliate" as such term is defined under the Exchange Act;\nWHEREAS, the Shareholder has requested that the Company disclose material, nonpublic information regarding the Company and its Common Stock to the Shareholder: and\nWHEREAS, the Company is willing to disclose to the Shareholder certain material, nonpublic information regarding the Company or its Common Stock subject to and in accordance with the terms and conditions set forth\nin this A greement.\nAG RE EM ENT\nNOW, THEREFORE, in view of the foregoing, the Parties agree as follows:\n1. Certain Definitions. As used herein:\n(a) ”Confidential Information" means any information regarding the Company orits Common Stock, whether in written, electronic or oral form, including data, reports, interpretations, forecasts,\nrecords, statements, documents and information of any kind concerning the Company or any of its subsidiaries which the Company or any of its Representatives provides to the Shareholder, Mded, 1m that "Confidential\nInformation" shall not include information that (i) has become available to the public other than as a result of a disclosure by the Shareholder or any of its Representatives, (ii) was available to the Shareholder or any of its Representatives\non a non-confidential basis prior to its disclosure to the Shareholder by the Company or any of its Representatives, (iii) has become available to the Shareholder or any of its Representatives on a non-confidential basis from a source other\nthan the Company or any of its Representatives, provided that such source is not bound by law or a confidentiality agreement in respect of such information with the Company or such Representative or otherwise prohibited from\ntransmitting such information to the Shareholder or such Representative by a contractual, legal or fiduciary obligation, or (iv) has been independently developed or acquired by the Shareholder or any of its Representatives without\nviolating any of its obligations under this Agreement\n(b) The term "person" shall mean an individual, corporation, partnership, limited liability company, association, trust, governmental entity, any other organization or entity or any group including any\nof the foregoing, and the terms "group" and "affiliate” shall have the meanings provided under the Exchange Act.\n(c) ”Exchange Act” means the Securities Exchange Act of 1934.\n(d) "Parties” means the Company and the Shareholder and "Party" means either of them.\n(e) ”Represenmtive” means, in relation to any Party, such Party’s affiliates and such Party' s and its affiliates' respective directors, officers, employees, agents or represenmtives, including, without\nlimitation, financial advisors, attorneys or accounmnts of such person.\n2. Disclosure of Confidential Information to the Shareholder.\n \n(a) In light of the Shareholders status as the Company’s largest shareholder and as an affiliate of the Company, the Company may, in its sole discretion, disclose certain Confidential Information to the Shareholder\nwhich is initially expected to include the Company's 2013 strategic plan and budget, a current smtus report on certain ongoing projects as of the date of this Agreement, and monthly financial information in the form provided to the\nCompany's non-employee directors together with a brief narrative on such financial information from the Company's Chief Executive Officer: Mded how—ever, that: (i) the Shareholder shall protect and maintain the confidentiality of\nany Confidential Information and shall not in any manner, directly or indirectly, disclose, in whole or in part, any Confidential Information to any person (including to the Shareholder s Representatives), (ii) the Shareholder shall not in\nany manner, directly or indirectly, use any Confidential Information for any purpose other than analyzing the Shareholder’ s investment in the Company, (iii) the Shareholder shall not, directly or indirectly, contact or have communications\nwith any person at the Company regarding any Confidential Information other than the Company's Chief Executive Officer (currently Bill Ulland) or the Company' s Chief Financial Officer (currently Jon Geriach), (iv) the Shareholder\nshall be subject to, and shall abide by, both the Company's General Policy on Securities Trading by Company Employees, Agents and Advisors and the Company's Supplemental Policy on Securities Trading by Officers, Directors and\nOtherAccess Personnel (including by refraining from trading in the Company’s Common Stock during all restricted trading periods described in such Supplemental Policy), copies of which have been provided to the Shareholder, and\n(v) the Shareholder shall take all steps necessary to comply with International Traffic in Arms Regulations with respect to the Confidential Information.\n(b) The Shareholder acknowledges and agrees that (i) if the Company or any of its Representatives discloses to the Shareholder any Confidential Information about the Company or its Common Stock, that such\ndisclosure is being made pursuant to this Agreement and in accordance with the confidentiality agreement exclusion in Rule 100(b)(2)(ii) of Regulation FD promulgated under the Exchange Act, (ii) the Shareholder is otherwise aware of\nthe requirements of Regulation FD, and (iii) the Shareholder is aware that the United States securities laws\nprohibit any person who has material, nonpublic information about a company from purchasing or selling securities of such company or from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities\n3. Exceptions to the Shareholder’ s Confidentiality Obligations.\n \n(a) In the event that the Shareholder is required by law, regulation or other legal process or is requested (by oral questions, interrogatories, requests for information or documents, subpoena, court\norder, civil investigative demand or other process) to disclose any Confidential Information, which disclosure is not otherwise permitted hereunder, the Shareholder shall provide the Company with prompt written notice of any such\nrequest or requirement (if legally permitted) so that the Company may seek an appropriate protective order or waive compliance with the provisions of this Agreement. If, failing the entry of a protective order or the receipt of a waiver\nhereunder, the Shareholder is, after consultation with legal counsel for the Shareholder, required or compelled to disclose Confidential Information pursuant to such request, the Shareholder may disclose that portion of the Confidential\nInformation which such counsel has advised that the Shareholder is required or compelled to disclose as aforesaid. In any event, the Shareholder will not oppose action by, and will cooperate with, the Company, at the Company's\nexpense, in its effom to obtain an appropriate protective order or other assurance that confidential treatment will be accorded the Confidential Information. All references to the Shareholder in this paragraph shall be deemed to include the\nShareholder’ s Representatives.\n(b) If at any time, in the opinion of legal counsel for the Shareholder, the Shareholder is required by law, regulation or other legal process or stock exchange or stock market rules to disclose\nConfidential Information in a context that is not covered by the immediately preceding Section 3(a), the Shareholder may disclose that portion of the Confidential Information that such counsel has advised that the Shareholder is required\nto disclose, provided that the Shareholder gives the Company prompt written notice of such disclosure (if legally permitted).\n4. No Representations orWarranties. The Shareholder acknowledges and agrees that, except as expressly set forth in any definitive, written documentation, neither the Company nor any of its Representatives\nmakes any representation or warranty as to the accuracy or completeness of any Confidential Information and that neither the Company nor its Representatives shall have any liability to the Shareholder or any of its Representatives\nresulting from the use of the Confidential Information by the Shareholder.\n5. Egg imble Remedies. The Shareholder agrees that money damages would not be a sufficient remedy for any breach of this Agreement by it or any of its Representatives and that the Company shall be entitled to\nspecific performance and injunctive or other equimble relief as remedies for any such breach. Such remedies shall not be deemed to be the exclusive remedies but shall be in addition to all other remedies available at law orin equity to the\nCompany.\n6. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Minnesota without giving effect to its conflicts of laws principles or rules.\n7. Term- Survivabilim- Disclosure of Agreement. Notwithstanding anything to the contrary in this Agreement, the Company is not obligated to furnish the Shareholder with any Confidential Information and the\nCompany may terminate the Shareholder’ s access to any Confidential Information at any time in its sole discretion. This Agreement may be terminated by either Party for any or no reason upon written notice to the other Party and shall\nterminate immediately upon the breach of this Agreement by either Party,- Muled, how—ever, that the Shareholder’ s confidentiality obligations under this Agreement shall remain effective and survive the termination of this Agreement\nwith respect to any Confidential Information furnished by the Company during the term of this Agreement. This Agreement may be disclosed by either Party in a filing with the Securities and Exchange Commission if required by\napplicable law or regulation.\n8. Miscellaneous. This Agreement sets forth the entire agreement of the Parties with respect to the subject matter hereof. This Agreement may not be assigned, in whole or in part, by either Party without the prior\nwritten consent of the other Party. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their successors and permitted assigns. This Agreement is solely for the benefit of the Parties and may not be\nenforced by any third party. If any of the provisions of this Agreement is not enforceable in whole or in part, the remaining provisions of this Agreement shall not be affected thereby. No failure or delay in exercising any other right,\npower or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. This Agreement\nmay only be amended by the mutual written agreement of the Parties.\n[signature page follows]\nIN WITNESS WHEREOE, the undersigned have executed this Agreement as of the date first set forth above.\nCOMPANY:\nIKONICS CORPORATION\n/5/ William C. Ulland\nSHAREHOLDER:\n/S/ Joseph R. NeIges\nWWW—\n[Signature page to Confidentiality Agreement]	EX-10.1 2 a13-7365 lex10d1.htm EX-10.1\nEXHIBIT 10.1\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this "Agreement") is entered into on this 11th day of March, 2013, between Ikonics Corporation, a Minnesota corporation (the "Company"), and Joseph R. Nerges, an individual resident\nof\nthe State of Pennsylvania (the "Shareholder")\nRECITALS\nWHEREAS, the common stock of the Company, par value $0.10 per share (the "Common Stock"), is the only authorized and issued voting security of the Company;\nWHEREAS, the Common Stock is traded in the Nasdaq Capital Market under the ticker symbol IKNX;\nWHEREAS, the Shareholder is the Company's s largest shareholder and is an "affiliate" as such term is defined under the Exchange Act;\nWHEREAS the Shareholder has requested that the Company disclose material nonpublic information regarding the Company and its Common Stock to the Shareholder; and\nWHEREAS, the Company is willing to disclose to the Shareholder certain material, nonpublic information regarding the Company or its Common Stock subject to and in accordance with the terms and conditions set forth\nin this Agreement\nAGREEMENT\nNOW, THEREFORE, in view of the foregoing, the Parties agree as follows:\n1.\nCertain Definitions As used herein:\n(a)\n"Confidential Information" means any information regarding the Company or its Common Stock, whether in written, electronic roral form, including data, reports, interpretations, forecasts,\nrecords, statements, documents and information of any kind conceming the Company or any of its subsidiaries which the Company or any of its Representatives provides to the Shareholder; provided however that "Confidential\nInformation" shall not include inforation that (i) has become available to the public other than as a result of a disclosure by the Shareholder or any of its Representatives, (ii) was available to the Shareholder or any of its Representatives\non a non-confidential basis prior to its disclosure to the Shareholder by the Company or any of its Representatives, (iii) has become available to the Shareholder or any of its Representatives on a non-confidential basis from a source other\nthan the Company or any of its Representatives, provided that such source is not bound by law or confidentiality agreement in respect of such information with the Company or such Representative or otherwise prohibited from\ntransmitting such information to the Shareholder or such Representative by a contractual legal or fiduciary obligation or (iv) has been independently developed or acquired by the Shareholder or any of its Representatives without\nviolating any of its obligations under this Agreement.\n(b)\nThe term "person" shall mean an individual, corporation, partnership, limited liability company, association, trust, govermental entity any other organization or entity or any group including any\nof the foregoing, and the terms "group" and "affiliate" shall have the meanings provided under the Exchange Act.\n(c)\n"Exchange Act" means the Securities Exchange Act of 1934.\n(d)\n"Parties" means the Company and the Shareholder and "Party" means either of them.\n(e)\n"Representative" means, in relation to any Party, such Party's affiliates and such Party's and its affiliates' respective directors, officers, employees, agents or representatives, including, without\nlimitation, financial advisors, attorneys or accountants of such person.\n2.\nDisclosure of Confidential Information to the Shareholder\n(a)\nIn light of the Shareholder's status as the Company's largest shareholder and as an affiliate of the Company, the Company may, in its sole discretion, disclose certain Confidential Information to the Shareholder\nwhich is initially expected to include the Company's 2013 strategic plan and budget, a current status report on certain ongoing projects as of the date of this Agreement, and monthly financial information in the form provided to the\nCompany's non-employee directors together with a brief narrative on such financial information from the Company's Chief Executive Officer; provided however that: (i) the Shareholder shall protect and maintain the confidentiality of\nany Confidential Information and shall not in any manner, directly or indirectly, disclose, in whole or in part, any Confidential Information to any person (including to the Shareholder' Representatives), (ii) the Shareholder shall not\nin\nany manner, directly or indirectly, use any Confidential Information for any purpose other than analyzing the Shareholder's investment in the Company, (iii) the Shareholder shall not, directly or indirectly, contact or have communications\nwith any person at the Company regarding any Confidential Information other than the Company's Chief Executive Officer (currently Bill Ulland) or the Company's Chief Financial Officer (currently Jon Gerlach), (iv) the Shareholder\nshall be subject to, and shall abide by, both the Company's General Policy on Securities Trading by Company Employees Agents and Advisors and the Company's Supplemental Policy on Securities Trading by Officers, Directors\nand\nOther Access Personnel (including by refraining from trading in the Company's Common Stock during all restricted trading periods described in such Supplemental Policy), copies of which have been provided to the Shareholder, and\n(v) the Shareholder shall take all steps necessary to comply with Intemational Traffic in Arms Regulations with respect to the Confidential Information.\n(b)\nThe Shareholder acknowledges and agrees that (i) if the Company or any of its Representatives discloses to the Shareholder any Confidential Information about the Company or its Common Stock, that such\ndisclosure is being made pursuant to this Agreement and in accordance with the confidentiality agreement exclusion in Rule 100(b)(2)(ii) of Regulation FD promulgated under the Exchange Act (ii) the Shareholder is otherwise aware of\nthe requirements of Regulation FD, and (iii) the Shareholder is aware that the United States securities laws\n2\nprohibit any person who has material nonpublic information about a company from purchasing or selling securities of such company or from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities.\n3.\nExceptions to the Shareholder's Confidentiality Obligations\n(a)\nIn the event that the Shareholder is required by law, regulation or other legal process or is requested (by oral questions, interrogatories, requests for information or documents, subpoena court\norder, civil investigative demand or other process) to disclose any Confidential Information which disclosure is not otherwise permitted hereunder, the Shareholder shall provide the Company with prompt written notice of any such\nrequest or requirement (if legally permitted) so that the Company may seek an appropriate protective order or waive compliance with the provisions of this Agreement. If, failing the entry of a protective order or the receipt of a waiver\nhereunder, the Shareholder is, after consultation with legal counsel for the Shareholder, required or compelled to disclose Confidential Information pursuant to such request, the Shareholder may disclose that portion of the Confidential\nInformation which such counsel has advised that the Shareholder is required or compelled to disclose as aforesaid. In any event the Shareholder will not oppose action by, and will cooperate with the Company, at the Company's\nexpense, in its efforts to obtain an appropriate protective order or other assurance that confidential treatment will be accorded the Confidential Information. All references to the Shareholder in this paragraph shall be deemed to include the\nShareholder's Representatives.\n(b)\nIf at any time, in the opinion of legal counsel for the Shareholder, the Shareholder is required by law regulation or other legal process or stock exchange or stock market rules to disclose\nConfidential Information in a context that is not covered by the immediately preceding Section 3(a) the Shareholder may disclose that portion of the Confidential Information that such counsel has advised that the Shareholder is required\nto\ndisclose, provided that the Shareholder gives the Company prompt written notice of such disclosure (if legally permitted).\n4.\nNo Representations or Warranties. The Shareholder acknowledges and agrees that, except as expressly set forth in any definitive, written documentation, neither the Company nor any of its Representatives\nmakes any representation or warranty as to the accuracy or completeness of any Confidential Information and that neither the Company nor its Representatives shall have any liability to the Shareholder or any of its Representatives\nresulting from the use of the Confidential Information by the Shareholder.\n5.\nEquitable Remedies The Shareholder agrees that money damages would not be a sufficient remedy for any breach of this Agreement by it or any of its Representatives and that the Company shall be entitled to\nspecific performance and injunctive or other equitable relief as remedies for any such breach. Such remedies shall not be deemed to be the exclusive remedies but shall be in addition to all other remedies available at law or in equity to the\nCompany.\n3\n6.\nGoverning Law This A greement shall be govemed and construed in accordance with the laws of the State of Minnesota without giving effect to its conflicts of laws principles or rules\n7.\nTerm; Survivability; Disclosure of Agreement. Notwithstanding anything to the contrary in this A greement, the Company is not obligated to furnish the Shareholder with any Confidential Information and the\nCompany may terminate the Shareholder's access to any Confidential Information at any time in its sole discretion. This Agreement may be terminated by either Party for any or no reason upon written notice to the other Party and shall\nterminate immediately upon the breach of this Agreement by either Party provided, however, that the Shareholder's confidentiality obligations under this Agreement shall remain effective and survive the termination of this Agreement\nwith\nrespect to any Confidential Information furnished by the Company during the term of this Agreement This Agreement may be disclosed by either Party in a filing with the Securities and Exchange Commission if required by\napplicable law or regulation.\n8.\nMiscellaneous. This Agreement sets forth the entire agreement of the Parties with respect to the subject matter hereof. This Agreement may not be assigned in whole or in part, by either Party without the prior\nwritten consent of the other Party. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their successors and permitted assigns. This Agreement is solely for the benefit of the Parties and may not be\nenforced by any third party. If any of the provisions of this Agreement is not enforceable in whole or in part, the remaining provisions of this greement shall not be affected thereby. No failure or delay in exercising any other right\npower or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. This Agreement\nmay only be amended by the mutual written agreement of the Parties\n[signature page follows\n4\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first set forth above.\nCOMPANY:\nIKONICS CORPORATION\n/s/ William C. Ulland\nBy:\nBIII UIand\nTitle:\nCEU\nSHAREHOLDER:\n/s/ Joseph R. Nerges\nJosepn R. Nerges\n[Signature page to Confidentiality Agreement]	EX-10 .1 2 a13-7365_1ex10d1.htm EX-10.1\nEXHIBIT 10.1\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”), is entered into on this 11th day of March, 2013, between Ikonics Corporation, a Minnesota corporation (the “Company”), and Joseph R. Nerges, an individual resident of\nthe State of Pennsylvania (the “Shareholder”).\nRECITALS\nWHEREAS, the common stock of the Company, par value $0.10 per share (the “Common Stock”), is the only authorized and issued voting security of the Company;\nWHEREAS, the Common Stock is traded in the Nasdaq Capital Market under the ticker symbol IKNX;\nWHEREAS, the Shareholder is the Company’s largest shareholder and is an “affiliate” as such term is defined under the Exchange Act;\nWHEREAS, the Shareholder has requested that the Company disclose material, nonpublic information regarding the Company and its Common Stock to the Shareholder; and\nWHEREAS, the Company is willing to disclose to the Shareholder certain material, nonpublic information regarding the Company or its Common Stock subject to and in accordance with the terms and conditions set forth\nin this Agreement.\nAGREEMENT\nNOW, THEREFORE, in view of the foregoing, the Parties agree as follows:\n1.\nCertain Definitions. As used herein:\n(a)\n“ Confidential Information” means any information regarding the Company or its Common Stock, whether in written, electronic or oral form, including data, reports, interpretations, forecasts,\nrecords, statements, documents and information of any kind concerning the Company or any of its subsidiaries which the Company or any of its Representatives provides to the Shareholder; provided, however, that “Confidential\nInformation” shall not include information that (i) has become available to the public other than as a result of a disclosure by the Shareholder or any of its Representatives, (ii) was available to the Shareholder or any of its Representatives\non a non-confidential basis prior to its disclosure to the Shareholder by the Company or any of its Representatives, (iii) has become available to the Shareholder or any of its Representatives on a non-confidential basis from a source other\nthan the Company or any of its Representatives, provided that such source is not bound by law or a confidentiality agreement in respect of such information with the Company or such Representative or otherwise prohibited from\ntransmitting such information to the Shareholder or such Representative by a contractual, legal or fiduciary obligation, or (iv) has been independently developed or acquired by the Shareholder or any of its Representatives without\nviolating any of its obligations under this Agreement.\n(b)\nThe term “person” shall mean an individual, corporation, partnership, limited liability company, association, trust, governmental entity, any other organization or entity or any group including any\nof the foregoing, and the terms “group” and “affiliate” shall have the meanings provided under the Exchange Act.\n(c)\n“ Exchange Act” means the Securities Exchange Act of 1934.\n(d)\n“Parties” means the Company and the Shareholder and “Party” means either of them.\n(e)\n“ Representative” means, in relation to any Party, such Party’s affiliates and such Party’s and its affiliates’ respective directors, officers, employees, agents or representatives, including, without\nlimitation, financial advisors, attorneys or accountants of such person.\n2.\nDisclosure of Confidential Information to the Shareholder.\n(a)\nIn light of the Shareholder’s status as the Company’s largest shareholder and as an affiliate of the Company, the Company may, in its sole discretion, disclose certain Confidential Information to the Shareholder\nwhich is initially expected to include the Company’s 2013 strategic plan and budget, a current status report on certain ongoing projects as of the date of this Agreement, and monthly financial information in the form provided to the\nCompany’s non-employee directors together with a brief narrative on such financial information from the Company’s Chief Executive Officer; provided however, that: (i) the Shareholder shall protect and maintain the confidentiality of\nany Confidential Information and shall not in any manner, directly or indirectly, disclose, in whole or in part, any Confidential Information to any person (including to the Shareholder’s Representatives), (ii) the Shareholder shall not in\nany manner, directly or indirectly, use any Confidential Information for any purpose other than analyzing the Shareholder’s investment in the Company, (iii) the Shareholder shall not, directly or indirectly, contact or have communications\nwith any person at the Company regarding any Confidential Information other than the Company’s Chief Executive Officer (currently Bill Ulland) or the Company’s Chief Financial Officer (currently Jon Gerlach), (iv) the Shareholder\nshall be subject to, and shall abide by, both the Company’s General Policy on Securities Trading by Company Employees, Agents and Advisors and the Company’s Supplemental Policy on Securities Trading by Officers, Directors and\nOther Access Personnel (including by refraining from trading in the Company’s Common Stock during all restricted trading periods described in such Supplemental Policy), copies of which have been provided to the Shareholder, and\n(v) the Shareholder shall take all steps necessary to comply with International Traffic in Arms Regulations with respect to the Confidential Information.\n(b)\nThe Shareholder acknowledges and agrees that (i) if the Company or any of its Representatives discloses to the Shareholder any Confidential Information about the Company or its Common Stock, that such\ndisclosure is being made pursuant to this Agreement and in accordance with the confidentiality agreement exclusion in Rule 100(b)(2)(ii) of Regulation FD promulgated under the Exchange Act, (ii) the Shareholder is otherwise aware of\nthe requirements of Regulation FD, and (iii) the Shareholder is aware that the United States securities laws\n2\nprohibit any person who has material, nonpublic information about a company from purchasing or selling securities of such company or from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities.\n3.\nExceptions to the Shareholder’s Confidentiality Obligations.\n(a)\nIn the event that the Shareholder is required by law, regulation or other legal process or is requested (by oral questions, interrogatories, requests for information or documents, subpoena, court\norder, civil investigative demand or other process) to disclose any Confidential Information, which disclosure is not otherwise permitted hereunder, the Shareholder shall provide the Company with prompt written notice of any such\nrequest or requirement (if legally permitted) so that the Company may seek an appropriate protective order or waive compliance with the provisions of this Agreement. If, failing the entry of a protective order or the receipt of a waiver\nhereunder, the Shareholder is, after consultation with legal counsel for the Shareholder, required or compelled to disclose Confidential Information pursuant to such request, the Shareholder may disclose that portion of the Confidential\nInformation which such counsel has advised that the Shareholder is required or compelled to disclose as aforesaid. In any event, the Shareholder will not oppose action by, and will cooperate with, the Company, at the Company’s\nexpense, in its efforts to obtain an appropriate protective order or other assurance that confidential treatment will be accorded the Confidential Information. All references to the Shareholder in this paragraph shall be deemed to include the\nShareholder’s Representatives.\n(b)\nIf at any time, in the opinion of legal counsel for the Shareholder, the Shareholder is required by law, regulation or other legal process or stock exchange or stock market rules to disclose\nConfidential Information in a context that is not covered by the immediately preceding Section 3(a), the Shareholder may disclose that portion of the Confidential Information that such counsel has advised that the Shareholder is required\nto disclose, provided that the Shareholder gives the Company prompt written notice of such disclosure (if legally permitted).\n4.\nNo Representations or Warranties. The Shareholder acknowledges and agrees that, except as expressly set forth in any definitive, written documentation, neither the Company nor any of its Representatives\nmakes any representation or warranty as to the accuracy or completeness of any Confidential Information and that neither the Company nor its Representatives shall have any liability to the Shareholder or any of its Representatives\nresulting from the use of the Confidential Information by the Shareholder.\n5.\nEquitable Remedies. The Shareholder agrees that money damages would not be a sufficient remedy for any breach of this Agreement by it or any of its Representatives and that the Company shall be entitled to\nspecific performance and injunctive or other equitable relief as remedies for any such breach. Such remedies shall not be deemed to be the exclusive remedies but shall be in addition to all other remedies available at law or in equity to the\nCompany.\n3\n6.\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws of the State of Minnesota without giving effect to its conflicts of laws principles or rules.\n7.\nTerm; Survivability; Disclosure of Agreement. Notwithstanding anything to the contrary in this Agreement, the Company is not obligated to furnish the Shareholder with any Confidential Information and the\nCompany may terminate the Shareholder’s access to any Confidential Information at any time in its sole discretion. This Agreement may be terminated by either Party for any or no reason upon written notice to the other Party and shall\nterminate immediately upon the breach of this Agreement by either Party; provided, however, that the Shareholder’s confidentiality obligations under this Agreement shall remain effective and survive the termination of this Agreement\nwith respect to any Confidential Information furnished by the Company during the term of this Agreement. This Agreement may be disclosed by either Party in a filing with the Securities and Exchange Commission if required by\napplicable law or regulation.\n8.\nMiscellaneous. This Agreement sets forth the entire agreement of the Parties with respect to the subject matter hereof. This Agreement may not be assigned, in whole or in part, by either Party without the prior\nwritten consent of the other Party. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their successors and permitted assigns. This Agreement is solely for the benefit of the Parties and may not be\nenforced by any third party. If any of the provisions of this Agreement is not enforceable in whole or in part, the remaining provisions of this Agreement shall not be affected thereby. No failure or delay in exercising any other right,\npower or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. This Agreement\nmay only be amended by the mutual written agreement of the Parties.\n[signature page follows]\n4\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first set forth above.\nCOMPANY:\nIKONICS CORPORATION\n/s/ William C. Ulland\nBy:\nBill Ulland\nTitle:\nCEO\nSHAREHOLDER:\n/s/ Joseph R. Nerges\nJoseph R. Nerges\n[Signature page to Confidentiality Agreement]
b9c6fcdb370e1b2763166d0bdb4b57da.pdf	effective_date jurisdiction party	Exhibit 10(u)\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS NON-COMPETITION and CONFIDENTIALITY AGREEMENT (“Agreement”) is made and entered\ninto this 7th day of December, 2015, by and between Myers Industries, Inc., an Ohio Corporation (the\n“Company”), and R. David Banyard (the “Executive”).\nRECITALS:\nA.The Company is a diversified international manufacturer of polymer products for the industrial, agricultural,\nautomotive, commercial and consumer markets and distributor of tools, equipment and supplies for tire service\nand under vehicle repair.\nB.Executive is being employed by the Company as President and Chief Executive Officer.\nC.The Company has acquired and established valuable and competitively sensitive information through its\nbusiness, research, development and practices, which information is described more extensively herein, and is\ncollectively referred to as the “Confidential Information.” To protect the business interests of the Company and\nthe competitive advantage derived from the Confidential Information, it is necessary that such Confidential\nInformation be kept secret and confidential.\nD.The Executive, from and after the commencement of employment with the Company, will be engaged in\nactivities such that the Executive will have extensive access to and become familiar with, and may develop or\ncontribute to, some or all of the Company’s Confidential Information. In addition, Executive will have\nextensive contact with the customers of the Company and will develop relationships with such customers on\nbehalf of the Company. The Executive recognizes that the Confidential Information and the Company’s\ncustomer relationships are vital to the success of the Company and that extensive, irreparable harm would\nresult were such Confidential Information to be disclosed outside the Company or if Executive were to engage\nin activity which competes with the Company.\nNOW, THEREFORE, in view of the above and in consideration for the mutual covenants and promises set\nforth below, the parties agree as follows:\n1.Confidential Information: For purposes of this Agreement, Confidential Information includes, but is not\nlimited to, business plans and strategies, marketing plans and strategies, customer lists, customer purchasing\ninformation, customer contact information, product design and development information, methods of\noperation, technical services, non-public financial information, business development plans and strategies,\nsystem analyses, quality control programs and information, computer programs, software and hardware\nconfigurations, information regarding the terms of the Company’s relationships with suppliers, pricing\ninformation, processes and techniques, creations, innovations, and any other information which the Company\nmay reasonably treat or designate as confidential from time to time. Confidential Information, however, shall\nnot include any information or materials that is or becomes publicly available other than through Executive’s\nwrongful disclosure of such information or materials. The Company believes that all Confidential Information\nconstitutes trade secret information under applicable law. Executive shall,\nhowever, maintain the confidentiality of all Confidential Information whether or not ultimately determined to\nbe a trade secret.\n2.Confidentiality and Non-Competition:\nA. Covenants\n(a)Executive acknowledges that the Company would be irreparably injured and the good will of the Company\nwould be irreparably damaged if Executive were to breach the covenants set forth in this Paragraph\n2. Executive further acknowledges that the covenants set forth in this Paragraph 2 are reasonable in scope and\nduration and do not unreasonably restrict Executive’s association with other business entities, either as an\nexecutive or otherwise as set forth herein.\n(b)During Executive’s employment with the Company and any time thereafter, except as may be required by\nlaw, Executive shall not, directly or indirectly, disclose, disseminate, reveal, divulge, discuss, copy or\notherwise use or suffer to be used, any Confidential Information other than in the authorized scope of\nExecutive’s employment with the Company. Upon termination of employment, no matter what the reason for\nsuch termination, and at any other time upon the request of the Company, Executive shall immediately return\nto the Company any and all Confidential Information, and all other materials, property and information in\ntangible or electronic form concerning the business and affairs of the Company and/or its customers.\n(c)Executive agrees that during Executive’s employment and for a period of two (2) years following the\ntermination of such employment, no matter what the reason for such termination, Executive will not directly or\nindirectly, whether on Executive’s own behalf or on behalf of any other person or entity, do or suffer any of the\nfollowing\n(i)Own, manage, control, participate in the ownership, management or control of, be employed or engaged by\nor otherwise affiliated or associated as a consultant, independent contractor or otherwise with, any person or\nbusiness entity that competes with the Company in the United States or in any geographic area(s) outside the\nUnited States in which the Company does business (the “Restricted Territory”). Without limiting the\ngenerality and scope of the foregoing, any business entity or person providing products or services competitive\nwith those of the Company in the Restricted Territory from either inside or outside the Restricted Territory is\ndeemed to be competing within the Restricted Territory. For purposes of this Agreement, the phrase\n“competes with” means providing services and products which are the same as, similar to, reasonably\nsubstitutable for, or otherwise capable of displacing the services and products of the\nCompany. Notwithstanding the foregoing, Executive’s passive investment ownership of not more than one\npercent (1%) of the stock of any publicly or privately held corporation shall not be deemed a violation of this\nprovision.\n(ii)Solicit, provide, sell, attempt to provide or sell, or otherwise deliver or supply any products or services\nwhich compete with the products or services of the Company to any person or business entity which is or was\na customer or prospective customer of the Company at any time during the last thirty-six (36) months of\n2\nExecutive’s employment, nor shall Executive in any way assist any other person or entity in such activity. For\npurposes of this Agreement, (1) the phrase “products or services which compete with the products or services\nof the Company means products or services which are the same as, similar to, reasonably substitutable for, or\notherwise capable of displacing the products or services of the Company; and (2) the term “prospective\ncustomer” means any person or entity the Company solicited, called on or otherwise specifically identified as a\ntarget for the sale of its products or services.\n(iii)Solicit the services of any person who then currently is, or who at any time during the last twelve (12)\nmonths of Executive’s employment with the Company was, an employee of the Company, or otherwise\nencourage or induce any such person to discontinue his or her relationship with the Company. Executive will\nnot engage in any business relationship with any consultant, independent contractor, subcontractor, supplier or\nservice provider of the Company which interferes with the Company’s relationship with such consultant,\nindependent contractor, subcontractor, supplier or service provider, or in any way causes such consultant,\nindependent contractor, subcontractor, supplier or service provider to reduce, alter, modify or discontinue the\nbusiness it (they) do(es) with the Company or any of its affiliates.\n3.Inventions: Executive hereby expressly agrees that all research discoveries, inventions and innovations\n(whether or not reduced to practice or documented), improvements, developments, methods, designs, analyses,\ndrawings, reports and all similar or related information (whether patentable or unpatentable, and whether or not\nreduced to writing), Confidential Information and copyrightable works, and similar and related information (in\nwhatever form or medium), which (1) either (i) relate to the Company’s or its affiliates’ actual or anticipated\nbusiness, research and development or existing or future products or services or (ii) result from or are\nsuggested by any work performed by the Executive for the Company or its affiliates and (2) are conceived,\ndeveloped, made or contributed to in whole or in part by the Executive during his employment (“Work\nProduct”) shall be and remain the sole and exclusive property of the Company or such affiliate.\n(i)Work Made for Hire. The Executive acknowledges that, unless otherwise agreed in writing by the\nCompany, all Work Product eligible for any form of copyright, trademark or patent protection made or\ncontributed to in whole or in part by the Executive within the scope of Executive’s employment by the\ncompany during the period of Executive’s employment with the Company shall be deemed a “work made for\nhire” and shall be owned by the Company or its affiliates, as applicable.\n(ii)Assignment of Proprietary Rights. The Executive hereby assigns, transfers and conveys to the Company,\nand shall assign, transfer and convey to the Company, all right, title and interest in and to all inventions, ideas,\nimprovements, designs, processes, patent rights, copyrights, trademarks, service marks, trade names, trade\nsecrets, trade dress, data, discoveries and other proprietary assets and proprietary rights in and of the Work\nProduct (the “Proprietary Rights”) for the Company’s exclusive ownership and use, together with all rights to\nsue and recover for past and future infringement or misappropriation thereof provided that if an affiliate of the\nCompany is the owner thereof; such assignment, transfer and\n3\nconveyance shall be made to such affiliate, which shall enjoy exclusive ownership and use, together with all\nrights to sue and recover for past and future infringement or misappropriation thereof.\n(iii)Further Instruments. At the request of the Company (or its affiliates, as the case may be), at all times\nduring Executive’s employment with the Company and thereafter, the Executive will promptly and fully assist\nthe Company (or its affiliates, as the case may be) in effecting the purpose of the foregoing assignment,\nincluding but not limited to the further acts of executing any and all documents necessary to secure for the\nCompany (or its affiliates, as the case may be) such Proprietary Rights and other rights to all Work Product\nand all confidential information related thereto, providing cooperation and giving testimony.\n(iv)Inapplicability of Paragraph 3 In Certain Circumstances. The Company expressly acknowledges and agrees\nthat, and the Executive is hereby advised that, this Paragraph 3 does not apply to any invention for which no\nequipment, supplies, facilities, trade secret information or Confidential Information of the Company or its\naffiliates was used and which was developed entirely on the Executive’s own time, unless (i) the invention\nrelates to the business of the Company or its affiliates, or to the Company’s or its affiliates’ actual or\ndemonstrably anticipated research or development or (ii) the invention results from or is suggested by any\nwork performed or observed by the Executive for the Company or any of its affiliates.\n4.Remedies: Executive acknowledges that the restrictions contained in Paragraphs 2 and 3 of this Agreement\nare reasonable in light of Executive’s position with the Company and are necessary to protect the Company\nfrom unfair competitive harm. Executive further acknowledges that any breach of this Agreement will result in\nimmediate irreparable harm to the Company and that the Company shall be entitled to immediate injunctive\nrelief upon any such breach, in addition to all other legal and equitable remedies the Company may have. This\nAgreement is to be construed as separate and independent from any other obligations and any claim by\nExecutive asserted against the Company and shall not constitute a defense to the enforcement of this\nAgreement. In the event any court determines that the restrictions set forth herein are unreasonable or\nunenforceable for any reason, the court will enforce such restrictions to the fullest extent permitted by law.\n5.Position of Employment: Executive expressly acknowledges that the obligations contained in Paragraphs 2\nand 3 of this Agreement shall remain in full force and effect during Executive’s employment in any position\nwith the Company, with respect to any Confidential Information of the Company.\n6.Validity: In the event any provision of this Agreement, or portion thereof, is held by a court of competent\njurisdiction to be unreasonable, arbitrary, or against public policy, then such provision, or portion thereof, shall\nbe enforced against the Executive to the extent the court deems to be reasonable or in accordance with public\npolicy. In the event any provision of this Agreement shall for any reason be wholly invalid, or unenforceable in\nany respect, such invalidity shall not affect the validity of any remaining portion which shall remain in full\nforce and effect as if the invalid portion was never part of this Agreement.\n4\n7.Miscellaneous: Executive acknowledges that the Executive has carefully read this entire Agreement and\nfully agrees with and understands all of the provisions the hereof. This Agreement supersedes all prior\nagreements between the Company and the Executive regarding the subject matter of this Agreement and\nconstitutes the entire agreement between the parties with respect to such subject matter. The Executive further\nagrees that in executing this Agreement, the Executive has not relied on any written or oral representations,\npromises, conditions, or understandings of the Company, express or implied, except as set forth herein. This\nAgreement may not be amended or modified other than in writing signed by the parties. This Agreement and\nany disputes arising thereunder shall be governed by the laws of the State of Ohio without regard to any State’s\nchoice of law, rules or principles. Executive and the Company expressly agree that any legal action arising out\nof or related to this Agreement will be brought exclusively in the state or federal courts located in Summit\nCounty, Ohio, and each party expressly consents to the jurisdiction of such courts and waives any and all\nobjections to the jurisdiction or venue thereof. This Agreement may be assigned to any successor-in-interest to\nthe business of the Company without the consent of Executive, but may not be assigned by Executive to any\nthird party. This Agreement is not a contract of employment for any definite period and Executive\nacknowledges that Executive’s employment with the Company is terminable at-will.\nIN WITNESS WHEREOF, the parties have hereunto executed this Agreement as of the date first set forth\nabove.\nMyers Industries, Inc.\nDate: 12/2/15\nBy:\n/s/ Sarah R. Coffin\nPrint Name:\nSarah R. Coffin, Chairman,\nCompensation Committee\nExecutive\nDate: 12/2/15\nSignature:\n/s/ R. David Banyard\nPrint Name:\nR. David Banyard\n5	Exhibit 10(u)\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS NON-COMPETITION and CONFIDENTIALITY AGREEMENT (”Agreement”) is made and entered\ninto this @ day of December, 2015, by and between Myers Industries, Inc., an Ohio Corporation (the\n”Company”), and R. David Banyard (the ”Executive”).\nRECITALS:\nA .The Company is a diversified international manufacturer of polymer products for the industrial, agricultural,\nautomotive, commercial and consumer markets and distributor of tools, equipment and supplies for tire service\nand under vehicle repair.\nB.Executive is being employed by the Company as President and Chief Executive Officer.\nC.The Company has acquired and established valuable and competitively sensitive information through its\nbusiness, research, development and practices, which information is described more extensively herein, and is\ncollectively referred to as the ”Confidential Information.” To protect the business interests of the Company and\nthe competitive advantage derived from the Confidential Information, it is necessary that such Confidential\nInformation be kept secret and confidential.\nD.The Executive, from and after the commencement of employment with the Company, will be engaged in\nactivities such that the Executive will have extensive access to and become familiar with, and may develop or\ncontribute to, some or all of the Company’s Confidential Information. In addition, Executive will have\nextensive contact with the customers of the Company and will develop relationships with such customers on\nbehalf of the Company. The Executive recognizes that the Confidential Information and the Company’s\ncustomer relationships are vital to the success of the Company and that extensive, irreparable harm would\nresult were such Confidential Information to be disclosed outside the Company or if Executive were to engage\nin activity which competes with the Company.\nNOW, THEREFORE, in view of the above and in consideration for the mutual covenants and promises set\nforth below, the parties agree as follows:\n1.Confidential Information: For purposes of this Agreement, Confidential Information includes, but is not\nlimited to, business plans and strategies, marketing plans and strategies, customer lists, customer purchasing\ninformation, customer contact information, product design and development information, methods of\noperation, technical services, non-public financial information, business development plans and strategies,\nsystem analyses, quality control programs and information, computer programs, software and hardware\nconfigurations, information regarding the terms of the Company’s relationships with suppliers, pricing\ninformation, processes and techniques, creations, innovations, and any other information which the Company\nmay reasonably treat or designate as confidential from time to time. Confidential Information, however, shall\nnot include any information or materials that is or becomes publicly available other than through Executive’s\nwrongful disclosure of such information or materials. The Company believes that all Confidential Information\nconstitutes trade secret infomation under applicable law. Executive shall,\nhowever, maintain the confidentiality of all Confidential Information whether or not ultimately determined to\nbe a trade secret.\n2.Confidentialit_:y and Non-Competition:\nA. Covenants\n(a)Executive acknowledges that the Company would be irreparably injured and the good will of the Company\nwould be irreparably damaged if Executive were to breach the covenants set forth in this Paragraph\n2. Executive further acknowledges that the covenants set forth in this Paragraph 2 are reasonable in scope and\nduration and do not unreasonably restrict Executive’s association with other business entities, either as an\nexecutive or otherwise as set forth herein.\n(b)During Executive’s employment with the Company and any time thereafter, except as may be required by\nlaw, Executive shall not, directly or indirectly, disclose, disseminate, reveal, divulge, discuss, copy or\notherwise use or suffer to be used, any Confidential Information other than in the authorized scope of\nExecutive’s employment with the Company. Upon termination of employment, no matter what the reason for\nsuch termination, and at any other time upon the request of the Company, Executive shall immediately return\nto the Company any and all Confidential Information, and all other materials, property and information in\ntangible or electronic form concerning the business and affairs of the Company and/or its customers.\n(c)Executive agrees that during Executive’s employment and for a period of two (2) years following the\ntermination of such employment, no matter what the reason for such termination, Executive will not directly or\nindirectly, whether on Executive’ s own behalf or on behalf of any other person or entity, do or suffer any of the\nfollowing\n(i)Own, manage, control, participate in the ownership, management or control of, be employed or engaged by\nor otherwise affiliated or associated as a consultant, independent contractor or otherwise with, any person or\nbusiness entity that competes with the Company in the United States or in any geographic area(s) outside the\nUnited States in which the Company does business (the ”Restricted Territory”). Without limiting the\ngenerality and scope of the foregoing, any business entity or person providing products or services competitive\nwith those of the Company in the Restricted Territory from either inside or outside the Restricted Territory is\ndeemed to be competing within the Restricted Territory. For purposes of this Agreement, the phrase\n”competes with” means providing services and products which are the same as, similar to, reasonably\nsubstitutable for, or otherwise capable of displacing the services and products of the\nCompany. Notwithstanding the foregoing, Executive’s passive investment ownership of not more than one\npercent (1%) of the stock of any publicly or privately held corporation shall not be deemed a violation of this\nprov1s10n.\n(ii)Solicit, provide, sell, attempt to provide or sell, or otherwise deliver or supply any products or services\nwhich compete with the products or services of the Company to any person or business entity which is or was\na customer or prospective customer of the Company at any time during the last thirty-six (36) months of\n2\nExecutive’s employment, nor shall Executive in any way assist any other person or entity in such activity. For\npurposes of this Agreement, (1) the phrase ”products or services which compete with the products or services\nof the Company means products or services which are the same as, similar to, reasonably substitutable for, or\notherwise capable of displacing the products or services of the Company; and (2) the term ”prospective\ncustomer” means any person or entity the Company solicited, called on or otherwise specifically identified as a\ntarget for the sale of its products or services.\n(iii)Solicit the services of any person who then currently is, or who at any time during the last twelve (12)\nmonths of Executive’s employment with the Company was, an employee of the Company, or otherwise\nencourage or induce any such person to discontinue his or her relationship with the Company. Executive will\nnot engage in any business relationship with any consultant, independent contractor, subcontractor, supplier or\nservice provider of the Company which interferes with the Company’s relationship with such consultant,\nindependent contractor, subcontractor, supplier or service provider, or in any way causes such consultant,\nindependent contractor, subcontractor, supplier or service provider to reduce, alter, modify or discontinue the\nbusiness it (they) do(es) with the Company or any of its affiliates.\n3.Inventions: Executive hereby expressly agrees that all research discoveries, inventions and innovations\n(whether or not reduced to practice or documented), improvements, developments, methods, designs, analyses,\ndrawings, reports and all similar or related information (whether patentable or unpatentable, and whether or not\nreduced to writing), Confidential Information and copyrightable works, and similar and related information (in\nwhatever form or medium), which (1) either (i) relate to the Company’s or its affiliates’ actual or anticipated\nbusiness, research and development or existing or future products or services or (ii) result from or are\nsuggested by any work performed by the Executive for the Company or its affiliates and (2) are conceived,\ndeveloped, made or contributed to in whole or in part by the Executive during his employment (”Work\nProduct”) shall be and remain the sole and exclusive property of the Company or such affiliate.\n(i)Work Made for Hire. The Executive acknowledges that, unless otherwise agreed in writing by the\nCompany, all Work Product eligible for any form of copyright, trademark or patent protection made or\ncontributed to in whole or in part by the Executive within the scope of Executive’s employment by the\ncompany during the period of Executive’s employment with the Company shall be deemed a ”work made for\nhire” and shall be owned by the Company or its affiliates, as applicable.\n(ii)A ssignment of Propriem Rights. The Executive hereby assigns, transfers and conveys to the Company,\nand shall assign, transfer and convey to the Company, all right, title and interest in and to all inventions, ideas,\nimprovements, designs, processes, patent rights, copyrights, trademarks, service marks, trade names, trade\nsecrets, trade dress, data, discoveries and other proprietary assets and proprietary rights in and of the Work\nProduct (the ”Proprietary Rights”) for the Company’s exclusive ownership and use, together with all rights to\nsue and recover for past and future infringement or misappropriation thereof provided that if an affiliate of the\nCompany is the owner thereof ; such assignment, transfer and\n3\nconveyance shall be made to such affiliate, which shall enjoy exclusive ownership and use, together with all\nrights to sue and recover for past and future infringement or misappropriation thereof.\n(iii)Eurther Instruments. At the request of the Company (or its affiliates, as the case may be), at all times\nduring Executive’s employment with the Company and thereafter, the Executive will promptly and fully assist\nthe Company (or its affiliates, as the case may be) in effecting the purpose of the foregoing assignment,\nincluding but not limited to the further acts of executing any and all documents necessary to secure for the\nCompany (or its affiliates, as the case may be) such Proprietary Rights and other rights to all Work Product\nand all confidential information related thereto, providing cooperation and giving testimony.\n(iv)Inapplicabilit_:y of Paragraph 3 In Certain Circumstances. The Company expressly acknowledges and agrees\nthat, and the Executive is hereby advised that, this Paragraph 3 does not apply to any invention for which no\nequipment, supplies, facilities, trade secret information or Confidential Information of the Company or its\naffiliates was used and which was developed entirely on the Executive’s own time, unless (i) the invention\nrelates to the business of the Company or its affiliates, or to the Company’s or its affiliates’ actual or\ndemonstrably anticipated research or development or (ii) the invention results from or is suggested by any\nwork performed or observed by the Executive for the Company or any of its affiliates.\n4.Remedies: Executive acknowledges that the restrictions contained in Paragraphs 2 and 3 of this Agreement\nare reasonable in light of Executive’s position with the Company and are necessary to protect the Company\nfrom unfair competitive harm. Executive further acknowledges that any breach of this Agreement will result in\nimmediate irreparable harm to the Company and that the Company shall be entitled to immediate injunctive\nrelief upon any such breach, in addition to all other legal and equitable remedies the Company may have. This\nAgreement is to be construed as separate and independent from any other obligations and any claim by\nExecutive asserted against the Company and shall not constitute a defense to the enforcement of this\nAgreement. In the event any court determines that the restrictions set forth herein are unreasonable or\nunenforceable for any reason, the court will enforce such restrictions to the fullest extent permitted by law.\n5.Position of Employment: Executive expressly acknowledges that the obligations contained in Paragraphs 2\nand 3 of this Agreement shall remain in full force and effect during Executive’s employment in any position\nwith the Company, with respect to any Confidential Information of the Company.\n6.V alidity: In the event any provision of this Agreement, or portion thereof, is held by a court of competent\njurisdiction to be unreasonable, arbitrary, or against public policy, then such provision, or portion thereof, shall\nbe enforced against the Executive to the extent the court deems to be reasonable or in accordance with public\npolicy. In the event any provision of this Agreement shall for any reason be wholly invalid, or unenforceable in\nany respect, such invalidity shall not affect the validity of any remaining portion which shall remain in full\nforce and effect as if the invalid portion was never part of this Agreement.\n4\n7.Miscellaneous: Executive acknowledges that the Executive has carefully read this entire Agreement and\nfully agrees with and understands all of the provisions the hereof. This Agreement supersedes all prior\nagreements between the Company and the Executive regarding the subject matter of this Agreement and\nconstitutes the entire agreement between the parties with respect to such subject matter. The Executive further\nagrees that in executing this Agreement, the Executive has not relied on any written or oral representations,\npromises, conditions, or understandings of the Company, express or implied, except as set forth herein. This\nAgreement may not be amended or modified other than in writing signed by the parties. This Agreement and\nany disputes arising thereunder shall be governed by the laws of the State of Ohio without regard to any State’s\nchoice of law, rules or principles. Executive and the Company expressly agree that any legal action arising out\nof or related to this Agreement will be brought exclusively in the state or federal courts located in Summit\nCounty, Ohio, and each party expressly consents to the jurisdiction of such courts and waives any and all\nobjections to the jurisdiction or venue thereof. This Agreement may be assigned to any successor-in-interest to\nthe business of the Company without the consent of Executive, but may not be assigned by Executive to any\nthird party. This Agreement is not a contract of employment for any definite period and Executive\nacknowledges that Executive’ s employment with the Company is terminable at- will.\nIN WITNESS WHEREOE, the parties have hereunto executed this Agreement as of the date first set forth\nabove.\nMyers Industries, Inc.\nDate: M By: /s/ Sarah R. Coffin\nPrint Name: Sarah R. Coffin, Chairman,\nCompensation Commfifl\nExecutive\nDate: % Signature: /s/ R. David Banyard\nPrintName: R. David Banyard	Exhibit 10(u)\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS NON-COMPETITION and CONFIDENTIALITY AGREEMENT 'Agreement") is made and entered\ninto this 7th day of December, 2015, by and between Myers Industries, Inc., an Ohio Corporation (the\n"Company"), and R. David Banyard (the "Executive").\nRECITALS:\nA.The Company is a diversified international manufacturer of polymer products for the industrial, agricultural,\nautomotive, commercial and consumer markets and distributor of tools, equipment and supplies for tire service\nand under vehicle repair.\nB.Executive is being employed by the Company as President and Chief Executive Officer.\nC.The Company has acquired and established valuable and competitively sensitive information through its\nbusiness, research, development and practices, which information is described more extensively herein, and is\ncollectively referred to as the "Confidential Information." To protect the business interests of the Company and\nthe competitive advantage derived from the Confidential Information, it is necessary that such Confidential\nInformation be kept secret and confidential.\nD.The Executive, from and after the commencement of employment with the Company, will be engaged in\nactivities such that the Executive will have extensive access to and become familiar with, and may develop or\ncontribute to, some or all of the Company's Confidential Information. In addition, Executive will have\nextensive contact with the customers of the Company and will develop relationships with such customers on\nbehalf of the Company. The Executive recognizes that the Confidential Information and the Company's\ncustomer relationships are vital to the success of the Company and that extensive, irreparable harm would\nresult were such Confidential Information to be disclosed outside the Company or if Executive were to engage\nin activity which competes with the Company.\nNOW, THEREFORE, in view of the above and in consideration for the mutual covenants and promises set\nforth below, the parties agree as follows:\n1.Confidential Information: For purposes of this A greement, Confidential Information includes, but is not\nlimited to, business plans and strategies, marketing plans and strategies, customer lists, customer purchasing\ninformation, customer contact information, product design and development information, methods of\noperation, technical services, non-public financial information, business development plans and strategies,\nsystem analyses, quality control programs and information, computer programs, software and hardware\nconfigurations, information regarding the terms of the Company's relationships with suppliers, pricing\ninformation, processes and techniques, creations, innovations, and any other information which the Company\nmay reasonably treat or designate as confidential from time to time. Confidential Information, however, shall\nnot include any information or materials that is or becomes publicly available other than through Executive's\nwrongful disclosure of such information or materials. The Company believes that all Confidential Information\nconstitutes trade secret information under applicable law. Executive shall\nhowever, maintain the confidentiality of all Confidential Information whether or not ultimately determined to\nbe a trade secret.\n2.Confidentiality and Non-Competition\nA.\nCovenants\na)Executive acknowledges that the Company would be irreparably injured and the good will of the Company\nwould be irreparably damaged if Executive were to breach the covenants set forth in this Paragraph\n2. Executive further acknowledges that the covenants set forth in this Paragraph 2 are reasonable in scope and\nduration and do not unreasonably restrict Executive's association with other business entities, either as an\nexecutive or otherwise as set forth herein.\n(b)During Executive's employment with the Company and any time thereafter, except as may be required by\nlaw, Executive shall not, directly or indirectly, disclose, disseminate, reveal, divulge, discuss, copy or\notherwise use or suffer to be used, any Confidential Information other than in the authorized scope of\nExecutive's employment with the Company. Upon termination of employment, no matter what the reason for\nsuch termination, and at any other time upon the request of the Company, Executive shall immediately return\nto the Company any and all Confidential Information, and all other materials, property and information in\ntangible or electronic form concerning the business and affairs of the Company and/or its customers.\n)Executive agrees that during Executive's employment and for a period of two (2) years following the\ntermination of such employment no matter what the reason for such termination, Executive will not directly or\nindirectly, whether on Executive's own behalf or on behalf of any other person or entity, do or suffer any of the\nfollowing\n(i)Own, manage, control, participate in the ownership, management or control of, be employed or engaged by\nor otherwise affiliated or associated as a consultant, independent contractor or otherwise with, any person or\nbusiness entity that competes with the Company in the United States or in any geographic area(s) outside the\nUnited States in which the Company does business (the "Restricted Territory"). Without limiting the\ngenerality and scope of the foregoing, any business entity or person providing products or services competitive\nwith those of the Company in the Restricted Territory from either inside or outside the Restricted Territory is\ndeemed to be competing within the Restricted Territory. For purposes of this Agreement, the phrase\n"competes with" means providing services and products which are the same as, similar to, reasonably\nsubstitutable for, or otherwise capable of displacing the services and products of the\nCompany. Notwithstanding the foregoing, Executive's passive investment ownership of not more than one\npercent (1%) of the stock of any publicly or privately held corporation shall not be deemed a violation of this\nprovision.\n(ii)Solicit, provide, sell, attempt to provide or sell, or otherwise deliver or supply any products or services\nwhich compete with the products or services of the Company to any person or business entity which is or was\na customer or prospective customer of the Company at any time during the last thirty-six (36) months of\n2\nExecutive's employment, nor shall Executive in any way assist any other person or entity in such activity. For\npurposes of this A greement, (1) the phrase "products or services which compete with the products or services\nof the Company means products or services which are the same as, similar to, reasonably substitutable for,\nor\notherwise capable of displacing the products or services of the Company; and (2) the term "prospective\ncustomer" means any person or entity the Company solicited, called on or otherwise specifically identified as a\ntarget for the sale of its products or services.\niii)Solicit the services of any person who then currently is, or who at any time during the last twelve (12)\nmonths of Executive's employment with the Company was, an employee of the Company, or otherwise\nencourage or induce any such person to discontinue his or her relationship with the Company. Executive will\nnot engage in any business relationship with any consultant, independent contractor, subcontractor, supplier or\nservice provider of the Company which interferes with the Company's relationship with such consultant,\nindependent contractor, subcontractor, supplier or service provider, or in any way causes such consultant,\nindependent contractor, subcontractor, supplier or service provider to reduce, alter, modify or discontinue the\nbusiness it (they) do(es) with the Company or any of its affiliates.\n3.Inventions: Executive hereby expressly agrees that all research discoveries, inventions and innovations\n(whether or not reduced to practice or documented), improvements, developments, methods, designs, analyses,\ndrawings, reports and all similar or related information (whether patentable or unpatentable, and whether or not\nreduced to writing), Confidential Information and copyrightable works, and similar and related information (in\nwhatever form or medium), which (1) either (i) relate to the Company's or its affiliates' actual or anticipated\nbusiness, research and development or existing or future products or services or (ii) result from or are\nsuggested by any work performed by the Executive for the Company or its affiliates and (2) are conceived,\ndeveloped, made or contributed to in whole or in part by the Executive during his employment ("Work\nProduct") shall be and remain the sole and exclusive property of the Company or such affiliate.\n(i)Work Made for Hire. The Executive acknowledges that, unless otherwise agreed in writing by the\nCompany, all Work Product eligible for any form of copyright, trademark or patent protection made or\ncontributed to in whole or in part by the Executive within the scope of Executive's employment by the\ncompany during the period of Executive's employment with the Company shall be deemed a "work made for\nhire" and shall be owned by the Company or its affiliates, as applicable.\n)Assignment of Proprietary Rights. The Executive hereby assigns, transfers and conveys to the Company,\nand shall assign, transfer and convey to the Company, all right, title and interest in and to all inventions, ideas,\nimprovements, designs, processes, patent rights, copyrights, trademarks, service marks, trade names, trade\nsecrets, trade dress, data, discoveries and other proprietary assets and proprietary rights in and of the Work\nProduct (the "Proprietary Rights") for the Company's exclusive ownership and use, together with all rights to\nsue and recover for past and future infringement or misappropriation thereof provided that if an affiliate of the\nCompany is the owner thereof; such assignment, transfer and\n3\nconveyance shall be made to such affiliate, which shall enjoy exclusive ownership and use, together with all\nrights to sue and recover for past and future infringement or misappropriation thereof.\n(iii) Further Instruments. At the request of the Company (or its affiliates, as the case may be), at all times\nduring Executive's employment with the Company and thereafter, the Executive will promptly and fully assist\nthe Company (or its affiliates as the case may be) in effecting the purpose of the foregoing assignment,\nincluding but not limited to the further acts of executing any and all documents necessary to secure for the\nCompany (or its affiliates, as the case may be) such Proprietary Rights and other rights to all Work Product\nand all confidential information related thereto, providing cooperation and giving testimony.\n(iv)Inapplicability of Paragraph 3 In Certain Circumstances. The Company expressly acknowledges and agrees\nthat, and the Executive is hereby advised that, this Paragraph 3 does not apply to any invention for which no\nequipment, supplies, facilities, trade secret information or Confidential Information of the Company or its\naffiliates was used and which was developed entirely on the Executive's own time, unless (i) the invention\nrelates to the business of the Company or its affiliates, or to the Company's or its affiliates' actual or\ndemonstrably anticipated research or development or (ii) the invention results from or is suggested by any\nwork performed or observed by the Executive for the Company or any of its affiliates.\n4.Remedies: Executive acknowledges that the restrictions contained in Paragraphs 2 and 3 of this Agreement\nare reasonable in light of Executive's position with the Company and are necessary to protect the Company\nfrom unfair competitive harm. Executive further acknowledges that any breach of this A greement will result in\nimmediate irreparable harm to the Company and that the Company shall be entitled to immediate injunctive\nrelief upon any such breach, in addition to all other legal and equitable remedies the Company may have. This\nA greement is to be construed as separate and independent from any other obligations and any claim by\nExecutive asserted against the Company and shall not constitute a defense to the enforcement of this\nA\ngreement. In the event any court determines that the restrictions set forth herein are unreasonable or\nunenforceable for any reason, the court will enforce such restrictions to the fullest extent permitted by law.\n5.Position of Employment: Executive expressly acknowledges that the obligations contained in Paragraphs 2\nand 3 of this Agreement shall remain in full force and effect during Executive's employment in any position\nwith the Company, with respect to any Confidential Information of the Company.\n.Validity: In the event any provision of this Agreement, or portion thereof, is held by a court of competent\njurisdiction to be unreasonable, arbitrary, or against public policy, then such provision, or portion thereof, shall\nbe enforced against the Executive to the extent the court deems to be reasonable or in accordance with public\npolicy. In the event any provision of this A greement shall for any reason be wholly invalid, or unenforceable in\nany respect, such invalidity shall not affect the validity of any remaining portion which shall remain in full\nforce and effect as if the invalid portion was never part of this Agreement.\n4\n.Miscellaneous: Executive acknowledges that the Executive has carefully read this entire A greement and\nfully agrees with and understands all of the provisions the hereof. This A greement supersedes all prior\nagreements between the Company and the Executive regarding the subject matter of this A greement and\nconstitutes the entire agreement between the parties with respect to such subject matter. The Executive further\nagrees that in executing this A greement the Executive has not relied on any written or oral representations,\npromises, conditions, or understandings of the Company, express or implied, except as set forth herein. This\nA greement may not be amended or modified other than in writing signed by the parties. This greement and\nany disputes arising thereunder shall be governed by the laws of the State of Ohio without regard to any State's\nchoice of law, rules or principles. Executive and the Company expressly agree that any legal action arising out\nof or related to this Agreement will be brought exclusively in the state or federal courts located in Summit\nCounty, Ohio, and each party expressly consents to the jurisdiction of such courts and waives any and all\nobjections to the jurisdiction or venue thereof. This Agreement may be assigned to any successor-in-interest to\nthe business of the Company without the consent of Executive, but may not be assigned by Executive to any\nthird party. This Agreement is not a contract of employment for any definite period and Executive\nacknowledges that Executive's employment with the Company is terminable at-will.\nIN WITNESS WHEREOF, the parties have hereunto executed this Agreement as of the date first set forth\nabove.\nMyers Industries, Inc.\nDate: 12/2/15\nBy:\n/s/ Sarah R. Coffin\nPrint Name:\nSarah R. Coffin, Chairman,\nCompensation Committee\nExecutive\nDate: 12/2/15\nSignature:\n/S/R. David Banyard\nPrint Name:\nR. David Banyard\n5	Exhibit 10(u)\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS NON-COMPETITION and CONFIDENTIALITY AGREEMENT (“Agreement”) is made and entered\ninto this 7th day of December, 2015, by and between Myers Industries, Inc., an Ohio Corporation (the\n“Company”), and R. David Banyard (the “Executive”).\nRECITALS:\nA.The Company is a diversified international manufacturer of polymer products for the industrial, agricultural,\nautomotive, commercial and consumer markets and distributor of tools, equipment and supplies for tire service\nand under vehicle repair.\nB.Executive is being employed by the Company as President and Chief Executive Officer.\nC.The Company has acquired and established valuable and competitively sensitive information through its\nbusiness, research, development and practices, which information is described more extensively herein, and is\ncollectively referred to as the “Confidential Information.” To protect the business interests of the Company and\nthe competitive advantage derived from the Confidential Information, it is necessary that such Confidential\nInformation be kept secret and confidential.\nD.The Executive, from and after the commencement of employment with the Company, will be engaged in\nactivities such that the Executive will have extensive access to and become familiar with, and may develop or\ncontribute to, some or all of the Company’s Confidential Information. In addition, Executive will have\nextensive contact with the customers of the Company and will develop relationships with such customers on\nbehalf of the Company. The Executive recognizes that the Confidential Information and the Company’s\ncustomer relationships are vital to the success of the Company and that extensive, irreparable harm would\nresult were such Confidential Information to be disclosed outside the Company or if Executive were to engage\nin activity which competes with the Company.\nNOW, THEREFORE, in view of the above and in consideration for the mutual covenants and promises set\nforth below, the parties agree as follows:\n1.Confidential Information: For purposes of this Agreement, Confidential Information includes, but is not\nlimited to, business plans and strategies, marketing plans and strategies, customer lists, customer purchasing\ninformation, customer contact information, product design and development information, methods of\noperation, technical services, non-public financial information, business development plans and strategies,\nsystem analyses, quality control programs and information, computer programs, software and hardware\nconfigurations, information regarding the terms of the Company’s relationships with suppliers, pricing\ninformation, processes and techniques, creations, innovations, and any other information which the Company\nmay reasonably treat or designate as confidential from time to time. Confidential Information, however, shall\nnot include any information or materials that is or becomes publicly available other than through Executive’s\nwrongful disclosure of such information or materials. The Company believes that all Confidential Information\nconstitutes trade secret information under applicable law. Executive shall,\nhowever, maintain the confidentiality of all Confidential Information whether or not ultimately determined to\nbe a trade secret.\n2.Confidentiality and Non-Competition:\nA. Covenants\n(a)Executive acknowledges that the Company would be irreparably injured and the good will of the Company\nwould be irreparably damaged if Executive were to breach the covenants set forth in this Paragraph\n2. Executive further acknowledges that the covenants set forth in this Paragraph 2 are reasonable in scope and\nduration and do not unreasonably restrict Executive’s association with other business entities, either as an\nexecutive or otherwise as set forth herein.\n(b)During Executive’s employment with the Company and any time thereafter, except as may be required by\nlaw, Executive shall not, directly or indirectly, disclose, disseminate, reveal, divulge, discuss, copy or\notherwise use or suffer to be used, any Confidential Information other than in the authorized scope of\nExecutive’s employment with the Company. Upon termination of employment, no matter what the reason for\nsuch termination, and at any other time upon the request of the Company, Executive shall immediately return\nto the Company any and all Confidential Information, and all other materials, property and information in\ntangible or electronic form concerning the business and affairs of the Company and/or its customers.\n(c)Executive agrees that during Executive’s employment and for a period of two (2) years following the\ntermination of such employment, no matter what the reason for such termination, Executive will not directly or\nindirectly, whether on Executive’s own behalf or on behalf of any other person or entity, do or suffer any of the\nfollowing\n(i)Own, manage, control, participate in the ownership, management or control of, be employed or engaged by\nor otherwise affiliated or associated as a consultant, independent contractor or otherwise with, any person or\nbusiness entity that competes with the Company in the United States or in any geographic area(s) outside the\nUnited States in which the Company does business (the “Restricted Territory”). Without limiting the\ngenerality and scope of the foregoing, any business entity or person providing products or services competitive\nwith those of the Company in the Restricted Territory from either inside or outside the Restricted Territory is\ndeemed to be competing within the Restricted Territory. For purposes of this Agreement, the phrase\n“competes with” means providing services and products which are the same as, similar to, reasonably\nsubstitutable for, or otherwise capable of displacing the services and products of the\nCompany. Notwithstanding the foregoing, Executive’s passive investment ownership of not more than one\npercent (1%) of the stock of any publicly or privately held corporation shall not be deemed a violation of this\nprovision.\n(ii)Solicit, provide, sell, attempt to provide or sell, or otherwise deliver or supply any products or services\nwhich compete with the products or services of the Company to any person or business entity which is or was\na customer or prospective customer of the Company at any time during the last thirty-six (36) months of\n2\nExecutive’s employment, nor shall Executive in any way assist any other person or entity in such activity. For\npurposes of this Agreement, (1) the phrase “products or services which compete with the products or services\nof the Company means products or services which are the same as, similar to, reasonably substitutable for, or\notherwise capable of displacing the products or services of the Company; and (2) the term “prospective\ncustomer” means any person or entity the Company solicited, called on or otherwise specifically identified as a\ntarget for the sale of its products or services.\n(iii)Solicit the services of any person who then currently is, or who at any time during the last twelve (12)\nmonths of Executive’s employment with the Company was, an employee of the Company, or otherwise\nencourage or induce any such person to discontinue his or her relationship with the Company. Executive will\nnot engage in any business relationship with any consultant, independent contractor, subcontractor, supplier or\nservice provider of the Company which interferes with the Company’s relationship with such consultant,\nindependent contractor, subcontractor, supplier or service provider, or in any way causes such consultant,\nindependent contractor, subcontractor, supplier or service provider to reduce, alter, modify or discontinue the\nbusiness it (they) do(es) with the Company or any of its affiliates.\n3.Inventions: Executive hereby expressly agrees that all research discoveries, inventions and innovations\n(whether or not reduced to practice or documented), improvements, developments, methods, designs, analyses,\ndrawings, reports and all similar or related information (whether patentable or unpatentable, and whether or not\nreduced to writing), Confidential Information and copyrightable works, and similar and related information (in\nwhatever form or medium), which (1) either (i) relate to the Company’s or its affiliates’ actual or anticipated\nbusiness, research and development or existing or future products or services or (ii) result from or are\nsuggested by any work performed by the Executive for the Company or its affiliates and (2) are conceived,\ndeveloped, made or contributed to in whole or in part by the Executive during his employment (“Work\nProduct”) shall be and remain the sole and exclusive property of the Company or such affiliate.\n(i)Work Made for Hire. The Executive acknowledges that, unless otherwise agreed in writing by the\nCompany, all Work Product eligible for any form of copyright, trademark or patent protection made or\ncontributed to in whole or in part by the Executive within the scope of Executive’s employment by the\ncompany during the period of Executive’s employment with the Company shall be deemed a “work made for\nhire” and shall be owned by the Company or its affiliates, as applicable.\n(ii)Assignment of Proprietary Rights. The Executive hereby assigns, transfers and conveys to the Company,\nand shall assign, transfer and convey to the Company, all right, title and interest in and to all inventions, ideas,\nimprovements, designs, processes, patent rights, copyrights, trademarks, service marks, trade names, trade\nsecrets, trade dress, data, discoveries and other proprietary assets and proprietary rights in and of the Work\nProduct (the “Proprietary Rights”) for the Company’s exclusive ownership and use, together with all rights to\nsue and recover for past and future infringement or misappropriation thereof provided that if an affiliate of the\nCompany is the owner thereof; such assignment, transfer and\n3\nconveyance shall be made to such affiliate, which shall enjoy exclusive ownership and use, together with all\nrights to sue and recover for past and future infringement or misappropriation thereof.\n(iii)Further Instruments. At the request of the Company (or its affiliates, as the case may be), at all times\nduring Executive’s employment with the Company and thereafter, the Executive will promptly and fully assist\nthe Company (or its affiliates, as the case may be) in effecting the purpose of the foregoing assignment,\nincluding but not limited to the further acts of executing any and all documents necessary to secure for the\nCompany (or its affiliates, as the case may be) such Proprietary Rights and other rights to all Work Product\nand all confidential information related thereto, providing cooperation and giving testimony.\n(iv)Inapplicability of Paragraph 3 In Certain Circumstances. The Company expressly acknowledges and agrees\nthat, and the Executive is hereby advised that, this Paragraph 3 does not apply to any invention for which no\nequipment, supplies, facilities, trade secret information or Confidential Information of the Company or its\naffiliates was used and which was developed entirely on the Executive’s own time, unless (i) the invention\nrelates to the business of the Company or its affiliates, or to the Company’s or its affiliates’ actual or\ndemonstrably anticipated research or development or (ii) the invention results from or is suggested by any\nwork performed or observed by the Executive for the Company or any of its affiliates.\n4.Remedies: Executive acknowledges that the restrictions contained in Paragraphs 2 and 3 of this Agreement\nare reasonable in light of Executive’s position with the Company and are necessary to protect the Company\nfrom unfair competitive harm. Executive further acknowledges that any breach of this Agreement will result in\nimmediate irreparable harm to the Company and that the Company shall be entitled to immediate injunctive\nrelief upon any such breach, in addition to all other legal and equitable remedies the Company may have. This\nAgreement is to be construed as separate and independent from any other obligations and any claim by\nExecutive asserted against the Company and shall not constitute a defense to the enforcement of this\nAgreement. In the event any court determines that the restrictions set forth herein are unreasonable or\nunenforceable for any reason, the court will enforce such restrictions to the fullest extent permitted by law.\n5.Position of Employment: Executive expressly acknowledges that the obligations contained in Paragraphs 2\nand 3 of this Agreement shall remain in full force and effect during Executive’s employment in any position\nwith the Company, with respect to any Confidential Information of the Company.\n6.Validity: In the event any provision of this Agreement, or portion thereof, is held by a court of competent\njurisdiction to be unreasonable, arbitrary, or against public policy, then such provision, or portion thereof, shall\nbe enforced against the Executive to the extent the court deems to be reasonable or in accordance with public\npolicy. In the event any provision of this Agreement shall for any reason be wholly invalid, or unenforceable in\nany respect, such invalidity shall not affect the validity of any remaining portion which shall remain in full\nforce and effect as if the invalid portion was never part of this Agreement.\n4\n7.Miscellaneous: Executive acknowledges that the Executive has carefully read this entire Agreement and\nfully agrees with and understands all of the provisions the hereof. This Agreement supersedes all prior\nagreements between the Company and the Executive regarding the subject matter of this Agreement and\nconstitutes the entire agreement between the parties with respect to such subject matter. The Executive further\nagrees that in executing this Agreement, the Executive has not relied on any written or oral representations,\npromises, conditions, or understandings of the Company, express or implied, except as set forth herein. This\nAgreement may not be amended or modified other than in writing signed by the parties. This Agreement and\nany disputes arising thereunder shall be governed by the laws of the State of Ohio without regard to any State’s\nchoice of law, rules or principles. Executive and the Company expressly agree that any legal action arising out\nof or related to this Agreement will be brought exclusively in the state or federal courts located in Summit\nCounty, Ohio, and each party expressly consents to the jurisdiction of such courts and waives any and all\nobjections to the jurisdiction or venue thereof. This Agreement may be assigned to any successor-in-interest to\nthe business of the Company without the consent of Executive, but may not be assigned by Executive to any\nthird party. This Agreement is not a contract of employment for any definite period and Executive\nacknowledges that Executive’s employment with the Company is terminable at-will.\nIN WITNESS WHEREOF, the parties have hereunto executed this Agreement as of the date first set forth\nabove.\nMyers Industries, Inc.\nDate: 12/2/15\nBy:\n/s/ Sarah R. Coffin\nPrint Name:\nSarah R. Coffin, Chairman,\nCompensation Committee\nExecutive\nDate: 12/2/15\nSignature:\n/s/ R. David Banyard\nPrint Name:\nR. David Banyard\n5
be638cc77cd0903a2526f16e8229cfe1.pdf	effective_date jurisdiction party term	EXHIBIT A NONDISCLOSURE AGREEMENT This Nondisclosure Agreement ("Agreement") is made effective as of\nAugust 2, 2000 by and between Solar Turbines Incorporated, a Delaware corporation having its principal office in San\nDiego, California ("Solar") and Capstone Turbine Corp., a California corporation having its principal office in Woodland\nHills, California ("Capstone"). WHEREAS, Solar and Capstone entered into an Alliance Agreement dated August 25,\n1997 ("Alliance Agreement"), under which Solar has been supplying certain primary surface recuperators ("PSRs") for\nCapstone's Microturbine Generator sets and Capstone has been purchasing PSRs from Solar. WHEREAS, on August 25,\n1997 Solar and Capstone also entered into a License Agreement ("License Agreement") under which Solar agreed, upon\nCapstone's election, to license Solar Intellectual Property (as defined therein) to Capstone to manufacture and modify\nPSRs for incorporation into Capstone's Microturbines, all in accordance with the terms of such License Agreement.\nWHEREAS, Capstone agreed to pay Solar certain Transition Fees pursuant to that certain Transition Agreement dated\nAugust 2, 2000 between the parties ("Transition Agreement") for the buyout and termination of the Alliance Agreement,\nthe modification and amendment of the License Agreement and the assistance to be provided by Solar in transitioning its\npresent manufacturing capabilities for PSRs for Capstone Microturbines to Capstone, all pursuant and subject to the\nTransition Agreement and the Amended And Restated License Agreement between the parties of even date herewith (the\n"Amended and Restated License Agreement") which define in further detail the transaction contemplated thereby (the\n"Transaction"). WHEREAS, Solar has agreed to share and disclose certain proprietary information and Solar Technology\n(collectively the "Solar Technology" hereunder), as defined in the Amended and Restated License Agreement, to\nCapstone as part of and in furtherance of the Transaction. WHEREAS, certain proprietary information was disclosed\nunder the Alliance Agreement subject to that certain Nondisclosure Agreement dated June 1, 1996 between the parties\nwhich was Exhibit C to the Alliance Agreement ("Prior Nondisclosure Agreement"). WHEREAS, Solar and Capstone\nexecuted a Nondisclosure Agreement, dated July 11, 1994, ("Prior Nondisclosure Agreement") when Capstone was\noperating under the name "NoMac Energy Systems, Inc.". WHEREAS, Capstone is actively engaged in the development\nof gas turbines and recuperated gas turbines in the *** size range and in the development of major components of both\ngas turbines and recuperated gas turbines in this size range; including turbines, 15 16 compressors, air bearings,\ncombustors, permanent magnet alternators, electronic convertors and recuperators and has the right to disclose certain\nproprietary information related thereto ("Capstone Proprietary Information"). WHEREAS, the parties agree that all\nproprietary information disclosed under each of the above described Prior Nondisclosure Agreements and the Solar\nTechnology (as defined in the Amended and Restated Licensing Agreement) and the Capstone Proprietary Information\n(as defined just above), collectively, shall be referred to herein as "proprietary information" and be subject to this\nAgreement. WHEREAS, each party desires to disclose such proprietary information to the other party for the limited\npurposes authorized under and in furtherance of the Transaction and, as to the Solar Technology and Solar proprietary\ninformation, subject to the terms of the Amended and Restated Licensing Agreement. WHEREAS, as used herein,\n"Party", receiving party" and "disclosing party" means each and every party who may receive or disclose Proprietary\nInformation regardless of the use of the singular rather than the plural form "parties". NOW, THEREFORE, in\nconsideration of the foregoing premises, the following promises, covenants and undertakings, and other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound, the\nparties agree as follows: 1. Each Party will use its best efforts to keep in confidence, and not disclose to any person or\npersons or use for purposes other than as allowed under the Amended and Restated License Agreement, proprietary\ninformation disclosed to it under this Agreement. Each Party recognizes that any disclosure of proprietary information\nreceived by it from the other would substantially injure the disclosing Party's business, impair its investments and\ngoodwill and jeopardize its relationships with its buyers and customers. In order to protect such proprietary information,\neach Party agrees: (a) to hold all proprietary information disclosed to it in safekeeping and in strict confidence and not to\ndisclose such proprietary information to any third parties or permit use of all such information to the disadvantage of the\ndisclosing Party; (b) to treat all proprietary information disclosed to it with at least the same degree of care with which\neach treats and protects its own proprietary information which does not wish to disclose to third parties, which in any\nevent shall be reasonable under the circumstances; (c) to limit the access of all proprietary information disclosed to it to\nonly those employees within its organization who require such proprietary information in performing the limited purpose\nof this Agreement, and to inform each of its employees of the provisions of this agreement; and 16 17 (d) to use\nproprietary information disclosed to it only to the extent necessary for performing the limited purposes of this\nAgreement 2. Exceptions. The restrictions contained in Section 1 shall not apply to any proprietary information if the\nsame is: (a) in the public domain at the lime of disclosure, or is subsequently made available by the disclosing Party to\nthe general public without restriction; (b) known by the receiving Party at the time of disclosure, as evidenced by\nappropriate documentation, or independently developed, as evidenced by appropriate documentation, by the receiving\nParty; (c) used or disclosed with the prior written approval of the disclosing Party; (d) becomes known to the receiving\nParty without similar restrictions as to its use or disclosure from a source other than the disclosing Party; (e) used or\ndisclosed after a period of ten (10) years from the date of termination of this Agreement; (f) becomes known pursuant to\njudicial action or Governmental regulations or requirements, provided that the recipient of such data shall have notified\nthe other Party. 3. Neither the execution of this Agreement, nor the furnishing of any materials hereunder, shall be\nconstrued as granting, either expressly or by implication, estoppel or otherwise, any license under any invention or patent\nnow or hereafter owned by or controlled by the Party furnishing the materials. 4. No rights or obligations other than\nthose expressly recited herein are to be implied by this Agreement with respect to patents, inventions and proprietary\ninformation. In providing data pursuant to this Agreement, the Party providing the proprietary information makes no\nrepresentation, either expressed or implied, as to adequacy, sufficiency, or freedom from fault of such proprietary\ninformation and incurs no responsibility nor obligation whatsoever by reason thereof; and the furnishing of such\nproprietary information shall not convey any rights or license with respect to such proprietary information. 5. Nothing in\nthis Agreement shall grant to either Party the right to make commitments of any kind for or on behalf of the other Party\nwithout the prior written consent of the other Party. 6. If a contractual relationship results from discussions between\nSolar and Capstone, the contract or purchase order will authorize Solar to disclose information to other parties which\nhave a need to know after Solar ensures that a nondisclosure agreement such 17 18 as this Agreement is in place with\nsuch parties. Similarly, such contract or purchase order will authorize Capstone, subject to the provision of Paragraph 3.2\nof the Amended and Restated License Agreement, to disclose information to other parties which have a need to know\nafter Capstone ensures that a nondisclosure agreement such as this Agreement is in place with such parties. 7. This\nAgreement may be terminated (a) by either Party for breach of the terms hereof or of the License Agreement or\nTransition Agreement upon giving sixty (60) written notice of its intention to terminate to the other Party unless the\ndefaulting party cures each and every breach within such cure period; or (b) the Agreement shall automatically expire ten\n(10) years from the Effective Date provided, however, that when the Agreement terminates, the obligations not to use\nand not to disclose proprietary information exchanged hereunder shall continue for the period specified hereinabove. 8.\nAll modifications to this Agreement shall be in writing and signed by duly authorized representatives of both\ncorporations. 9. All notices and information shall be addressed as follows: If to Capstone: Capstone Turbine Corp. 21211\nNordhoff Street Chatsworth, California 91311-5844 Attn: Ake Almgren President and Chief Executive Officer With a\ncopy to: Capstone Turbine Corp. 21211 Nordhoff Street Chatsworth, California 91311-5844 Attn: Jeff Watts Chief\nFinancial Officer If to Solar: Solar Turbines Incorporated 2200 Pacific Highway San Diego, CA 92101 Attn: Director,\nRecuperator Business 18 19 With a copy to: General Counsel Legal Department Solar Turbines Incorporated 2200\nPacific Highway San Diego, CA 92101 10. Return of Proprietary information. All proprietary information disclosed to\nthe receiving Party shall remain the property of the disclosing Party and within thirty (30) days of any termination of this\nAgreement in accordance with Paragraph 7 above, the receiving Party agrees to immediately return all proprietary\ninformation and all copies to the disclosing Party with a written statement that the foregoing has been accomplished. 11.\nNotification -and Injunctive Relief. If either Party, inadvertently or otherwise, makes an unauthorized disclosure of the\nother Party's proprietary information to a third party, the violating Party shall immediately take every reasonable action\nto recover the improperly disclosed proprietary information, execute a retroactive protective agreement with the\nunauthorized third party if possible and immediately notify the Party whose data was improperly disclosed ("Injured\nParty") and provide complete information about the unauthorized disclosure and the corrective measures being taken.\nThe Parties agree that monetary damages are inadequate for any material breach involving an unauthorized disclosure\nwhen the Injured Party reasonably believes said breach will cause it to suffer significant business harm. If the Injured\nParty believes, based on the facts, it will suffer material harm from the unauthorized disclosure and the corrective\nmeasures being taken by the violating Party are inadequate to mitigate this harm, the Parties agree the Injured Party shall\nbe entitled to prompt injunctive relief. Both Parties' other legal and equitable remedies and defenses remain unchanged\nby this provision. 12. Each Party reserves the right to change its designation of authorized representative, should\ncircumstances so require, and to notify the other Party, in writing, of any such changes. 13. (a) All technical information\nand ideas relating to any proprietary information disclosed hereunder shall be in writing and will be identified, in\nwriting, as being proprietary information. (b) Oral communications which are considered proprietary by the originating\nParty and so identified shall be reduced to writing within thirty (30) days and shall contain a notice thereon to the effect\nthat any disclosure and use shall be subject to the terms and conditions of this present Agreement. Such orally disclosed\ninformation shall be given the protection afforded proprietary information hereunder during such thirty (30) day period.\n(c) All copies of proprietary information shall contain a similar identification. 19 20 14. This Agreement shall be\ngoverned by and construed in accordance with the laws of the State of California as if made in California for\nperformance entirely within the State of California. 15. This Agreement constitutes the entire agreement between the\nParties with respect to the subject matter hereof, supersedes all prior oral or written agreements regarding the subject\nmatter hereof, and cannot be changed or terminated except by a writing signed by both Parties. 16. If any provision of\nthis Agreement is held illegal, invalid or unenforceable under present or future state or federal laws, or rules and\nregulations promulgated thereunder, effective during the term hereof, such provision shall be fully severable, and this\nAgreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a\npart hereof; and the remaining provisions hereof shall remain in full force and effect and shall not be affected by the\nillegal, invalid or unenforceable provision or by its severance herefrom. Furthermore, in lieu of such illegal, invalid, or\nunenforceable provision, there shall be automatically as part of this Agreement a provision similar in terms to such\nillegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable. 17. This Agreement\nis not assignable or transferable without the prior written consent of each Party, which consent may be withheld for any\nreason. 18. Nothing herein shall be construed as a grant of a license or conveyance of any rights under any discoveries,\ninventions, patents, trade secrets, copyrights, industrial property rights or know-how belonging to any Party hereto. 19.\nThis Agreement shall not constitute, create, give effect to or otherwise imply a teaming, joint venture, leader-follower or\nother formal business relationship. Further, nothing herein shall be construed as providing for the sharing of profits or\nlosses arising out of the efforts of the Parties. No Party shall be liable to the other for any of the costs, expenses, risks, or\nliabilities arising out of the other Party's efforts in connection with this Agreement. 20. Each Party to this Agreement has\nhad the opportunity to review the Agreement with legal counsel. This Agreement shall not be construed or interpreted\nagainst either Party on the basis that such Party drafted or authorized a particular provision, parts of, or the entirety of\nthis Agreement 20 21 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly\nauthorized officers. CAPSTONE TURBINE CORPORATION SOLAR TURBINES INCORPORATED By: /s/ AKE\nALMGREN By: /s/ GARY STROUP --------------------------------- ------------------------------------ Title: President & CEO\nTitle: President ------------------------------ -------------------------------- Date: August 7, 2000 Date: August 3, 2000 ----------\n--------------------- ---------------------------------- CAPSTONE TURBINE CORPORATION SOLAR TURBINES\nINCORPORATED By: /s/ WILLIAM TREECE By: /s/ DAVID W. ESBECK --------------------------------- ------------------\n-- - -- -- - -- - -- - -- - - Title: Sr. VP Strategic Technology Title: Vice President ------------------------------ ----------------------------\n-- - -- Date: August 7, 2000 Date: August 4, 2000 ------------------------------- ---------------------------------- 21	EXHIBIT A NONDISCLOSURE AGREEMENT This Nondisclosure Agreement ("Agreement") is made effective as of\nAugust 2, 2000 by and between Solar Turbines Incorporated, a Delaware corporation having its principal office in San\nDiego, California ("Solar") and Capstone Turbine Corp., a California corporation having its principal office in Woodland\nHills, California ("Capstone"). WHEREAS, Solar and Capstone entered into an Alliance Agreement dated August 25,\n1997 ("Alliance Agreement"), under which Solar has been supplying certain primary surface recuperators ("PSRs") for\nCapstone's Microturbine Generator sets and Capstone has been purchasing PSRs from Solar. WHEREAS, on August 25,\n1997 Solar and Capstone also entered into a License Agreement ("License Agreement") under which Solar agreed, upon\nCapstone's election, to license Solar Intellectual Property (as defined therein) to Capstone to manufacture and modify\nPSRs for incorporation into Capstone's Microturbines, all in accordance with the terms of such License Agreement.\nWHEREAS, Capstone agreed to pay Solar certain Transition Fees pursuant to that certain Transition Agreement dated\nAugust 2, 2000 between the parties ("Transition Agreement") for the buyout and termination of the Alliance Agreement,\nthe modification and amendment of the License Agreement and the assistance to be provided by Solar in transitioning its\npresent manufacturing capabilities for PSRs for Capstone Microturbines to Capstone, all pursuant and subject to the\nTransition Agreement and the Amended And Restated License Agreement between the parties of even date herewith (the\n"Amended and Restated License Agreement") which define in further detail the transaction contemplated thereby (the\n"Transaction"). WHEREAS, Solar has agreed to share and disclose certain proprietary information and Solar Technology\n(collectively the "Solar Technology" hereunder), as defined in the Amended and Restated License Agreement, to\nCapstone as part of and in furtherance of the Transaction. WHEREAS, certain proprietary information was disclosed\nunder the Alliance Agreement subject to that certain Nondisclosure Agreement dated June 1, 1996 between the parties\nwhich was Exhibit C to the Alliance Agreement ("Prior Nondisclosure Agreement"). WHEREAS, Solar and Capstone\nexecuted a Nondisclosure Agreement, dated July 11, 1994, ("Prior Nondisclosure Agreement") when Capstone was\noperating under the name "NoMac Energy Systems, Inc.". WHEREAS, Capstone is actively engaged in the development\nof gas turbines and recuperated gas turbines in the *** size range and in the development of major components of both\ngas turbines and recuperated gas turbines in this size range; including turbines, 15 16 compressors, air bearings,\ncombustors, permanent magnet alternators, electronic convertors and recuperators and has the right to disclose certain\nproprietary information related thereto ("Capstone Proprietary Information"). WHEREAS, the parties agree that all\nproprietary information disclosed under each of the above described Prior Nondisclosure Agreements and the Solar\nTechnology (as defined in the Amended and Restated Licensing Agreement) and the Capstone Proprietary Information\n(as defined just above), collectively, shall be referred to herein as "proprietary information" and be subject to this\nAgreement. WHEREAS, each party desires to disclose such proprietary information to the other party for the limited\npurposes authorized under and in furtherance of the Transaction and, as to the Solar Technology and Solar proprietary\ninformation, subject to the terms of the Amended and Restated Licensing Agreement. WHEREAS, as used herein,\n"Party", receiving party" and "disclosing party" means each and every party who may receive or disclose Proprietary\nInformation regardless of the use of the singular rather than the plural form "parties". NOW, THEREFORE, in\nconsideration of the foregoing premises, the following promises, covenants and undertakings, and other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound, the\nparties agree as follows: 1. Each Party will use its best efforts to keep in confidence, and not disclose to any person or\npersons or use for purposes other than as allowed under the Amended and Restated License Agreement, proprietary\ninformation disclosed to it under this Agreement. Each Party recognizes that any disclosure of proprietary information\nreceived by it from the other would substantially injure the disclosing Party's business, impair its investments and\ngoodwill and jeopardize its relationships with its buyers and customers. In order to protect such proprietary information,\neach Party agrees: (a) to hold all proprietary information disclosed to it in safekeeping and in strict confidence and not to\ndisclose such proprietary information to any third parties or permit use of all such information to the disadvantage of the\ndisclosing Party; (b) to treat all proprietary information disclosed to it with at least the same degree of care with which\neach treats and protects its own proprietary information which does not wish to disclose to third parties, which in any\nevent shall be reasonable under the circumstances; (c) to limit the access of all proprietary information disclosed to it to\nonly those employees within its organization who require such proprietary information in performing the limited purpose\nof this Agreement, and to inform each of its employees of the provisions of this agreement; and 16 17 (d) to use\nproprietary information disclosed to it only to the extent necessary for performing the limited purposes of this\nAgreement 2. Exceptions. The restrictions contained in Section 1 shall not apply to any proprietary information if the\nsame is: (a) in the public domain at the lime of disclosure, or is subsequently made available by the disclosing Party to\nthe general public without restriction; (b) known by the receiving Party at the time of disclosure, as evidenced by\nappropriate documentation, or independently developed, as evidenced by appropriate documentation, by the receiving\nParty; (c) used or disclosed with the prior written approval of the disclosing Party; (d) becomes known to the receiving\nParty without similar restrictions as to its use or disclosure from a source other than the disclosing Party; (e) used or\ndisclosed after a period of ten (10) years from the date of termination of this Agreement; (f) becomes known pursuant to\njudicial action or Governmental regulations or requirements, provided that the recipient of such data shall have notified\nthe other Party. 3. Neither the execution of this Agreement, nor the furnishing of any materials hereunder, shall be\nconstrued as granting, either expressly or by implication, estoppel or otherwise, any license under any invention or patent\nnow or hereafter owned by or controlled by the Party furnishing the materials. 4. No rights or obligations other than\nthose expressly recited herein are to be implied by this Agreement with respect to patents, inventions and proprietary\ninformation. In providing data pursuant to this Agreement, the Party providing the proprietary information makes no\nrepresentation, either expressed or implied, as to adequacy, sufficiency, or freedom from fault of such proprietary\ninformation and incurs no responsibility nor obligation whatsoever by reason thereof; and the furnishing of such\nproprietary information shall not convey any rights or license with respect to such proprietary information. 5. Nothing in\nthis Agreement shall grant to either Party the right to make commitments of any kind for or on behalf of the other Party\nwithout the prior written consent of the other Party. 6. If a contractual relationship results from discussions between\nSolar and Capstone, the contract or purchase order will authorize Solar to disclose information to other parties which\nhave a need to know after Solar ensures that a nondisclosure agreement such 17 18 as this Agreement is in place with\nsuch parties. Similarly, such contract or purchase order will authorize Capstone, subject to the provision of Paragraph 3.2\nof the Amended and Restated License Agreement, to disclose information to other parties which have a need to know\nafter Capstone ensures that a nondisclosure agreement such as this Agreement is in place with such parties. 7. This\nAgreement may be terminated (a) by either Party for breach of the terms hereof or of the License Agreement or\nTransition Agreement upon giving sixty (60) written notice of its intention to terminate to the other Party unless the\ndefaulting party cures each and every breach within such cure period; or (b) the Agreement shall automatically expire ten\n(10) years from the Effective Date provided, however, that when the Agreement terminates, the obligations not to use\nand not to disclose proprietary information exchanged hereunder shall continue for the period specified hereinabove. 8.\nAll modifications to this Agreement shall be in writing and signed by duly authorized representatives of both\ncorporations. 9. All notices and information shall be addressed as follows: If to Capstone: Capstone Turbine Corp. 21211\nNordhoff Street Chatsworth, California 91311-5844 Attn: Ake Almgren President and Chief Executive Officer With a\ncopy to: Capstone Turbine Corp. 21211 Nordhoff Street Chatsworth, California 91311-5844 Attn: Jeff Watts Chief\nFinancial Officer If to Solar: Solar Turbines Incorporated 2200 Pacific Highway San Diego, CA 92101 Attn: Director,\nRecuperator Business 18 19 With a copy to: General Counsel Legal Department Solar Turbines Incorporated 2200\nPacific Highway San Diego, CA 92101 10. Return of Proprietary information. All proprietary information disclosed to\nthe receiving Party shall remain the property of the disclosing Party and within thirty (30) days of any termination of this\nAgreement in accordance with Paragraph 7 above, the receiving Party agrees to immediately return all proprietary\ninformation and all copies to the disclosing Party with a written statement that the foregoing has been accomplished. 11.\nNotification -and Injunctive Relief. If either Party, inadvertently or otherwise, makes an unauthorized disclosure of the\nother Party's proprietary information to a third party, the violating Party shall immediately take every reasonable action\nto recover the improperly disclosed proprietary information, execute a retroactive protective agreement with the\nunauthorized third party if possible and immediately notify the Party whose data was improperly disclosed ("Injured\nParty") and provide complete information about the unauthorized disclosure and the corrective measures being taken.\nThe Parties agree that monetary damages are inadequate for any material breach involving an unauthorized disclosure\nwhen the Injured Party reasonably believes said breach will cause it to suffer significant business harm. If the Injured\nParty believes, based on the facts, it will suffer material harm from the unauthorized disclosure and the corrective\nmeasures being taken by the violating Party are inadequate to mitigate this harm, the Parties agree the Injured Party shall\nbe entitled to prompt injunctive relief. Both Parties' other legal and equitable remedies and defenses remain unchanged\nby this provision. 12. Each Party reserves the right to change its designation of authorized representative, should\ncircumstances so require, and to notify the other Party, in writing, of any such changes. 13. (a) All technical information\nand ideas relating to any proprietary information disclosed hereunder shall be in writing and will be identified, in\nwriting, as being proprietary information. (b) Oral communications which are considered proprietary by the originating\nParty and so identified shall be reduced to writing within thirty (30) days and shall contain a notice thereon to the effect\nthat any disclosure and use shall be subject to the terms and conditions of this present Agreement. Such orally disclosed\ninformation shall be given the protection afforded proprietary information hereunder during such thirty (30) day period.\n(c) All copies of proprietary information shall contain a similar identification. 19 20 14. This Agreement shall be\ngoverned by and construed in accordance with the laws of the State of California as if made in California for\nperformance entirely within the State of California. 15. This Agreement constitutes the entire agreement between the\nParties with respect to the subject matter hereof, supersedes all prior oral or written agreements regarding the subject\nmatter hereof, and cannot be changed or terminated except by a writing signed by both Parties. 16. If any provision of\nthis Agreement is held illegal, invalid or unenforceable under present or future state or federal laws, or rules and\nregulations promulgated thereunder, effective during the term hereof, such provision shall be fully severable, and this\nAgreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a\npart hereof; and the remaining provisions hereof shall remain in full force and effect and shall not be affected by the\nillegal, invalid or unenforceable provision or by its severance herefrom. Furthermore, in lieu of such illegal, invalid, or\nunenforceable provision, there shall be automatically as part of this Agreement a provision similar in terms to such\nillegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable. 17. This Agreement\nis not assignable or transferable without the prior written consent of each Party, which consent may be withheld for any\nreason. 18. Nothing herein shall be construed as a grant of a license or conveyance of any rights under any discoveries,\ninventions, patents, trade secrets, copyrights, industrial property rights or know-how belonging to any Party hereto. 19.\nThis Agreement shall not constitute, create, give effect to or otherwise imply a teaming, joint venture, leader-follower or\nother formal business relationship. Further, nothing herein shall be construed as providing for the sharing of profits or\nlosses arising out of the efforts of the Parties. No Party shall be liable to the other for any of the costs, expenses, risks, or\nliabilities arising out of the other Party's efforts in connection with this Agreement. 20. Each Party to this Agreement has\nhad the opportunity to review the Agreement with legal counsel. This Agreement shall not be construed or interpreted\nagainst either Party on the basis that such Party drafted or authorized a particular provision, parts of, or the entirety of\nthis Agreement 20 21 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly\nauthorized officers. CAPSTONE TURBINE CORPORATION SOLAR TURBINES INCORPORATED By: /s/ AKE\nALMGREN By: /s/ GARY STROUP ---------mmm oo e Title: President & CEO\nTitle: President —--------=mmmmmm oo oo e Date: August 7, 2000 Date: August 3, 2000 ----------\n------------------------------------------------------- CAPSTONE TURBINE CORPORATION SOLAR TURBINES\nINCORPORATED By: /s/ WILLIAM TREECE By: /s/ DAVID W. ESBECK --------=---mom e e\n------------------ Title: Sr. VP Strategic Technology Title: Vice President -----=--=====-mmmmmmmm e o\n----- Date: August 7, 2000 Date: August 4, 2000 ----=-====nmmmmmmm oo e D]	EXHIBIT A NONDISCLOSURE AGREEMENT This Nondisclosure Agreement ("Agreement") is made effective as of\nAugust 2, 2000 by and between Solar Turbines Incorporated, a Delaware corporation having its principal office in San\nDiego, California ("Solar") and Capstone Turbine Corp., a California corporation having its principal office in Woodland\nHills, California ("Capstone"). WHEREAS, Solar and Capstone entered into an Alliance Agreement dated August 25,\n1997\n("Alliance\nAgreement"),\nunder\nwhich\nSolar\nhas\nbeen\nsupplying\ncertain\nprimary\nsurface\nrecuperators\n("PSRs")\nfor\nCapstone's 1997 Solar Microturbine and Capstone Generator also entered sets into and a Capstone License Agreement has been purchasing ("License Agreement") PSRs from Solar. under WHEREAS, which Solar on agreed, August upon 25,\nCapstone's election, to license Solar Intellectual Property (as defined therein) to Capstone to manufacture and modify\nPSRs for incorporation into Capstone's Microturbines, all in accordance with the terms of such License Agreement.\nWHEREAS,\nCapstone\nagreed\nto\npay\nSolar\ncertain\nTransition\nFees\npursuant\nto\nthat\ncertain\nTransition\nAgreement\ndated\nAugust 2, 2000 between the parties ("Transition Agreement") for the buyout and termination of the Alliance Agreement,\nthe modification and amendment of the License Agreement and the assistance to be provided by Solar in transitioning its\npresent manufacturing capabilities for PSRs for Capstone Microturbines to Capstone, all pursuant and subject to the\nTransition Agreement and the Amended And Restated License Agreement between the parties of even date herewith (the\n"Amended and Restated License Agreement") which define in further detail the transaction contemplated thereby (the\n"Transaction") WHEREAS, Solar has agreed to share and disclose certain proprietary information and Solar Technology\n(collectively the "Solar Technology" hereunder), as defined in the Amended and Restated License Agreement, to\nCapstone as part of and in furtherance of the Transaction. WHEREAS, certain proprietary information was disclosed\nunder the Alliance Agreement subject to that certain Nondisclosure Agreement dated June 1, 1996 between the parties\nwhich was Exhibit C to the Alliance Agreement ("Prior Nondisclosure Agreement"). WHEREAS, Solar and Capstone\nexecuted a Nondisclosure Agreement, dated July 11, 1994, ("Prior Nondisclosure Agreement") when Capstone was\noperating under the name "NoMac Energy Systems, Inc.". WHEREAS, Capstone is actively engaged in the development\nof\ngas turbines and recuperated gas turbines in the ** size range and in the development of major components of\nboth\ngas turbines and recuperated gas turbines in this size range; including turbines, 15 16 compressors, air bearings,\ncombustors, permanent magnet alternators, electronic convertors and recuperators and has the right to disclose certain\nproprietary information related thereto ("Capstone Proprietary Information"). WHEREAS, the parties agree that all\nproprietary information disclosed under each of the above described Prior Nondisclosure Agreements and the Solar\nTechnology (as defined in the Amended and Restated Licensing Agreement) and the Capstone Proprietary Information\n(as defined just above), collectively, shall be referred to herein as "proprietary information" and be subject to this\nAgreement. WHEREAS, each party desires to disclose such proprietary information to the other party for the limited\npurposes authorized under and in furtherance of the Transaction and, as to the Solar Technology and Solar proprietary\ninformation, subject to the terms of the Amended and Restated Licensing Agreement WHEREAS, as used herein,\n"Party", receiving party" and "disclosing party" means each and every party who may receive or disclose Proprietary\nInformation regardless of the use of the singular rather than the plural form "parties". NOW, THEREFORE, in\nconsideration of the foregoing premises, the following promises, covenants and undertakings, and other good and\nvaluable\nconsideration,\nthe\nreceipt\nand\nsufficiency\nof\nwhich\nare\nhereby\nacknowledged,\nintending\nto\nbe\nlegally\nbound,\nthe\nparties agree as follows: 1. Each Party will use its best efforts to keep in confidence, and not disclose to any person or\npersons or use for purposes other than as allowed under the Amended and Restated License Agreement, proprietary\ninformation disclosed to it under this Agreement. Each Party recognizes that any disclosure of proprietary information\nreceived by it from the other would substantially injure the disclosing Party's business, impair its investments and\ngoodwill and jeopardize its relationships with its buyers and customers. In order to protect such proprietary information,\neach Party agrees: (a) to hold all proprietary information disclosed to it in safekeeping and in strict confidence and not\nto\ndisclose such proprietary information to any third parties or permit use of all such information to the disadvantage of the\ndisclosing Party; (b) to treat all proprietary information disclosed to it with at least the same degree of care with which\neach treats and protects its own proprietary information which does not wish to disclose to third parties, which in any\nevent shall be reasonable under the circumstances; (c) to limit the access of all proprietary information disclosed to it\nto\nonly those employees within its organization who require such proprietary information in performing the limited purpose\nof this Agreement, and to inform each of its employees of the provisions of this agreement; and 16 17 (d) to use\nproprietary information disclosed to it only to the extent necessary for performing the limited purposes of this\nAgreement 2. Exceptions. The restrictions contained in Section 1 shall not apply to any proprietary information if the\nsame is: (a) in the public domain at the lime of disclosure, or is subsequently made available by the disclosing Party\nto\nthe general public without restriction; (b) known by the receiving Party at the time of disclosure, as evidenced by\nappropriate documentation, or independently developed as evidenced by appropriate documentation, by the receiving\nParty;\n(c)\nused or disclosed with the prior written approval of the disclosing Party; (d) becomes known to the receiving\nParty without similar restrictions as to its use or disclosure from a source other than the disclosing Party; (e) used or\ndisclosed after a period of ten (10) years from the date of termination of this Agreement; (f) becomes known pursuant to\njudicial action or Governmental regulations or requirements, provided that the recipient of such data shall have notified\nthe other Party. 3. Neither the execution of this Agreement, nor the furnishing of any materials hereunder, shall be\nconstrued as granting, either expressly or by implication, estoppel or otherwise, any license under any invention or\npatent\nnow or hereafter owned by or controlled by the Party furnishing the materials. 4. No rights or obligations other than\nthose expressly recited herein are to be implied by this Agreement with respect to patents, inventions and proprietary\ninformation. In providing data pursuant to this Agreement, the Party providing the proprietary information makes no\nrepresentation, either expressed or implied, as to adequacy, sufficiency, or freedom from fault of such proprietary\ninformation and incurs no responsibility nor obligation whatsoever by reason thereof; and the furnishing of such\nproprietary information shall not convey any rights or license with respect to such proprietary information. 5. Nothing\nin\nthis Agreement shall grant to either Party the right to make commitments of any kind for or on behalf of the other Party\nwithout the prior written consent of the other Party. 6. If a contractual relationship results from discussions between\nSolar and Capstone, the contract or purchase order will authorize Solar to disclose information to other parties which\nhave a need to know after Solar ensures that a nondisclosure agreement such 17 18 as this Agreement is in place with\nsuch parties. Similarly, such contract or purchase order will authorize Capstone, subject to the provision of Paragraph 3.2\nof the Amended and Restated License Agreement, to disclose information to other parties which have a need to know\nafter\nCapstone\nensures\nthat\na\nnondisclosure\nagreement\nsuch\nas\nthis\nAgreement\nis\nin\nplace\nwith\nsuch\nparties.\n7.\nThis\nAgreement may be terminated (a) by either Party for breach of the terms hereof or of the License Agreement or\nTransition Agreement upon giving sixty (60) written notice of its intention to terminate to the other Party unless the\ndefaulting party cures each and every breach within such cure period; or (b) the Agreement shall automatically expire\nten\n(10) years from the Effective Date provided, however, that when the Agreement terminates, the obligations not to use\nand\nnot to disclose proprietary information exchanged hereunder shall continue for the period specified hereinabove.\n8.\nAll modifications to this Agreement shall be in writing and signed by duly authorized representatives of both\ncorporations. 9. All notices and information shall be addressed as follows: If to Capstone: Capstone Turbine Corp. 21211\nNordhoff Street Chatsworth, California 91311-5844 Attn: Ake Almgren President and Chief Executive Officer With\na\ncopy to: Capstone Turbine Corp. 21211 Nordhoff Street Chatsworth, California 91311-5844 Attn: Jeff Watts Chief\nFinancial Officer If to Solar: Solar Turbines Incorporated 2200 Pacific Highway San Diego, CA 92101 Attn: Director,\nRecuperator Business 18 19 With a copy to: General Counsel Legal Department Solar Turbines Incorporated 2200\nPacific Highway San Diego, CA 92101 10. Return of Proprietary information. All proprietary information disclosed to\nthe\nreceiving\nParty\nshall remain the property of the disclosing Party and within thirty (30) days of any termination\nof\nthis\nAgreement in accordance with Paragraph 7 above, the receiving Party agrees to immediately return all proprietary\ninformation and all copies to the disclosing Party with a written statement that the foregoing has been accomplished. 11.\nNotification -and Injunctive Relief. If either Party, inadvertently or otherwise, makes an unauthorized disclosure of the\nother Party's proprietary information to a third party, the violating Party shall immediately take every reasonable action\nto recover the improperly disclosed proprietary information, execute a retroactive protective agreement with the\nunauthorized third party if possible and immediately notify the Party whose data was improperly disclosed ("Injured\nParty") and provide complete information about the unauthorized disclosure and the corrective measures being taken.\nThe Parties agree that monetary damages are inadequate for any material breach involving an unauthorized disclosure\nwhen the Injured Party reasonably believes said breach will cause it to suffer significant business harm. If the Injured\nParty believes, based on the facts, it will suffer material harm from the unauthorized disclosure and the corrective\nmeasures being taken by the violating Party are inadequate to mitigate this harm, the Parties agree the Injured Party shall\nbe entitled to prompt injunctive relief. Both Parties' other legal and equitable remedies and defenses remain unchanged\nby this provision. 12. Each Party reserves the right to change its designation of authorized representative, should\ncircumstances SO require, and to notify the other Party, in writing, of any such changes. 13. (a) All technical information\nand ideas relating to any proprietary information disclosed hereunder shall be in writing and will be identified, in\nwriting, as being proprietary information. (b) Oral communications which are considered proprietary by the originating\nParty and SO identified shall be reduced to writing within thirty (30) days and shall contain a notice thereon to the effect\nthat\nany disclosure and use shall be subject to the terms and conditions of this present Agreement. Such orally disclosed\ninformation shall be given the protection afforded proprietary information hereunder during such thirty (30) day period.\n(c) All copies of proprietary information shall contain a similar identification. 19 20 14. This Agreement shall be\ngoverned by and construed in accordance with the laws of the State of California as if made in California for\nperformance entirely within the State of California. 15. This Agreement constitutes the entire agreement between the\nParties with respect to the subject matter hereof, supersedes all prior oral or written agreements regarding the subject\nmatter hereof, and cannot be changed or terminated except by a writing signed by both Parties. 16. If any provision of\nthis Agreement is held illegal, invalid or unenforceable under present or future state or federal laws, or rules and\nregulations promulgated thereunder, effective during the term hereof, such provision shall be fully severable, and this\nAgreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a\npart hereof; and the remaining provisions hereof shall remain in full force and effect and shall not be affected by the\nillegal, invalid or unenforceable provision or by its severance herefrom. Furthermore, in lieu of such illegal, invalid,\nor\nunenforceable provision, there shall be automatically as part of this Agreement a provision similar in terms to such\nillegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable. 17. This Agreement\nis not assignable or transferable without the prior written consent of each Party, which consent may be withheld for any\nreason. 18. Nothing herein shall be construed as a grant of a license or conveyance of any rights under any discoveries,\ninventions, patents, trade secrets, copyrights, industrial property rights or know-how belonging to any Party hereto. 19.\nThis Agreement shall not constitute, create, give effect to or otherwise imply a teaming, joint venture, leader-follower or\nother\nformal\nbusiness\nrelationship.\nFurther,\nnothing\nherein\nshall\nbe\nconstrued\nas\nproviding\nfor\nthe\nsharing\nof\nprofits\nor\nlosses arising out of the efforts of the Parties. No Party shall be liable to the other for any of the costs, expenses, risks, or\nliabilities arising out of the other Party's efforts in connection with this Agreement. 20. Each Party to this Agreement has\nhad the opportunity to review the Agreement with legal counsel. This Agreement shall not be construed or interpreted\nagainst either Party on the basis that such Party drafted or authorized a particular provision, parts of, or the entirety of\nthis Agreement 20 21 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly\nauthorized officers. CAPSTONE TURBINE CORPORATION SOLAR TURBINES INCORPORATED By: /s/ AKE\nALMGREN By: /s/ GARY STROUP\nTitle: President & CEO\nTitle: President\nDate: August 7, 2000 Date: August 3, 2000\nCAPSTONE TURBINE CORPORATION SOLAR TURBINES\nINCORPORATED By: /s/ WILLIAM TREECE By: /s/ DAVID W. ESBECK\nTitle: Sr. VP Strategic Technology Title: Vice President\nDate: August 7, 2000 Date: August 4, 2000\n21	EXHIBIT A NONDISCLOSURE AGREEMENT This Nondisclosure Agreement ("Agreement") is made effective as of\nAugust 2, 2000 by and between Solar Turbines Incorporated, a Delaware corporation having its principal office in San\nDiego, California ("Solar") and Capstone Turbine Corp., a California corporation having its principal office in Woodland\nHills, California ("Capstone"). WHEREAS, Solar and Capstone entered into an Alliance Agreement dated August 25,\n1997 ("Alliance Agreement"), under which Solar has been supplying certain primary surface recuperators ("PSRs") for\nCapstone's Microturbine Generator sets and Capstone has been purchasing PSRs from Solar. WHEREAS, on August 25,\n1997 Solar and Capstone also entered into a License Agreement ("License Agreement") under which Solar agreed, upon\nCapstone's election, to license Solar Intellectual Property (as defined therein) to Capstone to manufacture and modify\nPSRs for incorporation into Capstone's Microturbines, all in accordance with the terms of such License Agreement.\nWHEREAS, Capstone agreed to pay Solar certain Transition Fees pursuant to that certain Transition Agreement dated\nAugust 2, 2000 between the parties ("Transition Agreement") for the buyout and termination of the Alliance Agreement,\nthe modification and amendment of the License Agreement and the assistance to be provided by Solar in transitioning its\npresent manufacturing capabilities for PSRs for Capstone Microturbines to Capstone, all pursuant and subject to the\nTransition Agreement and the Amended And Restated License Agreement between the parties of even date herewith (the\n"Amended and Restated License Agreement") which define in further detail the transaction contemplated thereby (the\n"Transaction"). WHEREAS, Solar has agreed to share and disclose certain proprietary information and Solar Technology\n(collectively the "Solar Technology" hereunder), as defined in the Amended and Restated License Agreement, to\nCapstone as part of and in furtherance of the Transaction. WHEREAS, certain proprietary information was disclosed\nunder the Alliance Agreement subject to that certain Nondisclosure Agreement dated June 1, 1996 between the parties\nwhich was Exhibit C to the Alliance Agreement ("Prior Nondisclosure Agreement"). WHEREAS, Solar and Capstone\nexecuted a Nondisclosure Agreement, dated July 11, 1994, ("Prior Nondisclosure Agreement") when Capstone was\noperating under the name "NoMac Energy Systems, Inc.". WHEREAS, Capstone is actively engaged in the development\nof gas turbines and recuperated gas turbines in the *** size range and in the development of major components of both\ngas turbines and recuperated gas turbines in this size range; including turbines, 15 16 compressors, air bearings,\ncombustors, permanent magnet alternators, electronic convertors and recuperators and has the right to disclose certain\nproprietary information related thereto ("Capstone Proprietary Information"). WHEREAS, the parties agree that all\nproprietary information disclosed under each of the above described Prior Nondisclosure Agreements and the Solar\nTechnology (as defined in the Amended and Restated Licensing Agreement) and the Capstone Proprietary Information\n(as defined just above), collectively, shall be referred to herein as "proprietary information" and be subject to this\nAgreement. WHEREAS, each party desires to disclose such proprietary information to the other party for the limited\npurposes authorized under and in furtherance of the Transaction and, as to the Solar Technology and Solar proprietary\ninformation, subject to the terms of the Amended and Restated Licensing Agreement. WHEREAS, as used herein,\n"Party", receiving party" and "disclosing party" means each and every party who may receive or disclose Proprietary\nInformation regardless of the use of the singular rather than the plural form "parties". NOW, THEREFORE, in\nconsideration of the foregoing premises, the following promises, covenants and undertakings, and other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound, the\nparties agree as follows: 1. Each Party will use its best efforts to keep in confidence, and not disclose to any person or\npersons or use for purposes other than as allowed under the Amended and Restated License Agreement, proprietary\ninformation disclosed to it under this Agreement. Each Party recognizes that any disclosure of proprietary information\nreceived by it from the other would substantially injure the disclosing Party's business, impair its investments and\ngoodwill and jeopardize its relationships with its buyers and customers. In order to protect such proprietary information,\neach Party agrees: (a) to hold all proprietary information disclosed to it in safekeeping and in strict confidence and not to\ndisclose such proprietary information to any third parties or permit use of all such information to the disadvantage of the\ndisclosing Party; (b) to treat all proprietary information disclosed to it with at least the same degree of care with which\neach treats and protects its own proprietary information which does not wish to disclose to third parties, which in any\nevent shall be reasonable under the circumstances; (c) to limit the access of all proprietary information disclosed to it to\nonly those employees within its organization who require such proprietary information in performing the limited purpose\nof this Agreement, and to inform each of its employees of the provisions of this agreement; and 16 17 (d) to use\nproprietary information disclosed to it only to the extent necessary for performing the limited purposes of this\nAgreement 2. Exceptions. The restrictions contained in Section 1 shall not apply to any proprietary information if the\nsame is: (a) in the public domain at the lime of disclosure, or is subsequently made available by the disclosing Party to\nthe general public without restriction; (b) known by the receiving Party at the time of disclosure, as evidenced by\nappropriate documentation, or independently developed, as evidenced by appropriate documentation, by the receiving\nParty; (c) used or disclosed with the prior written approval of the disclosing Party; (d) becomes known to the receiving\nParty without similar restrictions as to its use or disclosure from a source other than the disclosing Party; (e) used or\ndisclosed after a period of ten (10) years from the date of termination of this Agreement; (f) becomes known pursuant to\njudicial action or Governmental regulations or requirements, provided that the recipient of such data shall have notified\nthe other Party. 3. Neither the execution of this Agreement, nor the furnishing of any materials hereunder, shall be\nconstrued as granting, either expressly or by implication, estoppel or otherwise, any license under any invention or patent\nnow or hereafter owned by or controlled by the Party furnishing the materials. 4. No rights or obligations other than\nthose expressly recited herein are to be implied by this Agreement with respect to patents, inventions and proprietary\ninformation. In providing data pursuant to this Agreement, the Party providing the proprietary information makes no\nrepresentation, either expressed or implied, as to adequacy, sufficiency, or freedom from fault of such proprietary\ninformation and incurs no responsibility nor obligation whatsoever by reason thereof; and the furnishing of such\nproprietary information shall not convey any rights or license with respect to such proprietary information. 5. Nothing in\nthis Agreement shall grant to either Party the right to make commitments of any kind for or on behalf of the other Party\nwithout the prior written consent of the other Party. 6. If a contractual relationship results from discussions between\nSolar and Capstone, the contract or purchase order will authorize Solar to disclose information to other parties which\nhave a need to know after Solar ensures that a nondisclosure agreement such 17 18 as this Agreement is in place with\nsuch parties. Similarly, such contract or purchase order will authorize Capstone, subject to the provision of Paragraph 3.2\nof the Amended and Restated License Agreement, to disclose information to other parties which have a need to know\nafter Capstone ensures that a nondisclosure agreement such as this Agreement is in place with such parties. 7. This\nAgreement may be terminated (a) by either Party for breach of the terms hereof or of the License Agreement or\nTransition Agreement upon giving sixty (60) written notice of its intention to terminate to the other Party unless the\ndefaulting party cures each and every breach within such cure period; or (b) the Agreement shall automatically expire ten\n(10) years from the Effective Date provided, however, that when the Agreement terminates, the obligations not to use\nand not to disclose proprietary information exchanged hereunder shall continue for the period specified hereinabove. 8.\nAll modifications to this Agreement shall be in writing and signed by duly authorized representatives of both\ncorporations. 9. All notices and information shall be addressed as follows: If to Capstone: Capstone Turbine Corp. 21211\nNordhoff Street Chatsworth, California 91311-5844 Attn: Ake Almgren President and Chief Executive Officer With a\ncopy to: Capstone Turbine Corp. 21211 Nordhoff Street Chatsworth, California 91311-5844 Attn: Jeff Watts Chief\nFinancial Officer If to Solar: Solar Turbines Incorporated 2200 Pacific Highway San Diego, CA 92101 Attn: Director,\nRecuperator Business 18 19 With a copy to: General Counsel Legal Department Solar Turbines Incorporated 2200\nPacific Highway San Diego, CA 92101 10. Return of Proprietary information. All proprietary information disclosed to\nthe receiving Party shall remain the property of the disclosing Party and within thirty (30) days of any termination of this\nAgreement in accordance with Paragraph 7 above, the receiving Party agrees to immediately return all proprietary\ninformation and all copies to the disclosing Party with a written statement that the foregoing has been accomplished. 11.\nNotification -and Injunctive Relief. If either Party, inadvertently or otherwise, makes an unauthorized disclosure of the\nother Party's proprietary information to a third party, the violating Party shall immediately take every reasonable action\nto recover the improperly disclosed proprietary information, execute a retroactive protective agreement with the\nunauthorized third party if possible and immediately notify the Party whose data was improperly disclosed ("Injured\nParty") and provide complete information about the unauthorized disclosure and the corrective measures being taken.\nThe Parties agree that monetary damages are inadequate for any material breach involving an unauthorized disclosure\nwhen the Injured Party reasonably believes said breach will cause it to suffer significant business harm. If the Injured\nParty believes, based on the facts, it will suffer material harm from the unauthorized disclosure and the corrective\nmeasures being taken by the violating Party are inadequate to mitigate this harm, the Parties agree the Injured Party shall\nbe entitled to prompt injunctive relief. Both Parties' other legal and equitable remedies and defenses remain unchanged\nby this provision. 12. Each Party reserves the right to change its designation of authorized representative, should\ncircumstances so require, and to notify the other Party, in writing, of any such changes. 13. (a) All technical information\nand ideas relating to any proprietary information disclosed hereunder shall be in writing and will be identified, in\nwriting, as being proprietary information. (b) Oral communications which are considered proprietary by the originating\nParty and so identified shall be reduced to writing within thirty (30) days and shall contain a notice thereon to the effect\nthat any disclosure and use shall be subject to the terms and conditions of this present Agreement. Such orally disclosed\ninformation shall be given the protection afforded proprietary information hereunder during such thirty (30) day period.\n(c) All copies of proprietary information shall contain a similar identification. 19 20 14. This Agreement shall be\ngoverned by and construed in accordance with the laws of the State of California as if made in California for\nperformance entirely within the State of California. 15. This Agreement constitutes the entire agreement between the\nParties with respect to the subject matter hereof, supersedes all prior oral or written agreements regarding the subject\nmatter hereof, and cannot be changed or terminated except by a writing signed by both Parties. 16. If any provision of\nthis Agreement is held illegal, invalid or unenforceable under present or future state or federal laws, or rules and\nregulations promulgated thereunder, effective during the term hereof, such provision shall be fully severable, and this\nAgreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a\npart hereof; and the remaining provisions hereof shall remain in full force and effect and shall not be affected by the\nillegal, invalid or unenforceable provision or by its severance herefrom. Furthermore, in lieu of such illegal, invalid, or\nunenforceable provision, there shall be automatically as part of this Agreement a provision similar in terms to such\nillegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable. 17. This Agreement\nis not assignable or transferable without the prior written consent of each Party, which consent may be withheld for any\nreason. 18. Nothing herein shall be construed as a grant of a license or conveyance of any rights under any discoveries,\ninventions, patents, trade secrets, copyrights, industrial property rights or know-how belonging to any Party hereto. 19.\nThis Agreement shall not constitute, create, give effect to or otherwise imply a teaming, joint venture, leader-follower or\nother formal business relationship. Further, nothing herein shall be construed as providing for the sharing of profits or\nlosses arising out of the efforts of the Parties. No Party shall be liable to the other for any of the costs, expenses, risks, or\nliabilities arising out of the other Party's efforts in connection with this Agreement. 20. Each Party to this Agreement has\nhad the opportunity to review the Agreement with legal counsel. This Agreement shall not be construed or interpreted\nagainst either Party on the basis that such Party drafted or authorized a particular provision, parts of, or the entirety of\nthis Agreement 20 21 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly\nauthorized officers. CAPSTONE TURBINE CORPORATION SOLAR TURBINES INCORPORATED By: /s/ AKE\nALMGREN By: /s/ GARY STROUP --------------------------------- ------------------------------------ Title: President & CEO\nTitle: President ------------------------------ -------------------------------- Date: August 7, 2000 Date: August 3, 2000 ----------\n--------------------- ---------------------------------- CAPSTONE TURBINE CORPORATION SOLAR TURBINES\nINCORPORATED By: /s/ WILLIAM TREECE By: /s/ DAVID W. ESBECK --------------------------------- ------------------\n-- - -- -- - -- - -- - -- - - Title: Sr. VP Strategic Technology Title: Vice President ------------------------------ ----------------------------\n-- - -- Date: August 7, 2000 Date: August 4, 2000 ------------------------------- ---------------------------------- 21
bed0aec4a6819b285bfe7475122ec4f7.pdf	effective_date jurisdiction party	NON-DISCLOSURE CONFIDENTIALITY AGREEMENT\nDOUBLETAKE SOFTWARE, INC.\nS. Craig Huke (hereinafter referred to as the “employee”) hereby acknowledges that Double-Take Software, Inc., et al. (hereinafter\nreferred to as the “Corporation”) is engaged in the business of developing, selling, distributing, supporting, installing and servicing\ncomputer related software. Both parties agree that the operation of the business and performance of the work of the Corporation\ninvolves special skills, knowledge, trade secrets, special techniques, procedures or names and addresses of the customers, past and\npresent, of the Corporation. The employee acknowledges that he is being employed with the express understanding that all of the\nforegoing shall not be divulged or otherwise disclosed to anyone at any time.\nIt is further understood and agreed to by the employee, that during the time of his employment by the Corporation, that his time and\nefforts will be exclusively devoted to the Corporation’s business, and that he will not participate in any activity of a similar nature\nwith any other entity, in any capacity, (e.g. sales, consulting, engineering, supervision or hands on activity). All computer program\nsource and information relating to such source code, trade secrets, books, manuals, bulletins, work papers, files, reports and other\nrelated materials are the property of the Corporation and must be returned to the Corporation upon request or at the termination of\nemployment, along with any reproductions of such documentation.\nEmployee agrees to hold in confidence and to refrain from using or disclosing to any third party, without prior written consent of\nCorporation, (a( any information disclosed in confidence to employee by the Corporation, and (b( any information developed or\ndelivered by employee during the term of employee’s employment by the Corporation. All computer program source and information\nrelating to such source code received, developed or delivered by employee in connection with his employment shall be deemed\nconfidential information and belonging exclusively to the Corporation for purposes of this paragraph.\nEmployee agrees to provide the Corporation with all source code and complete source code documentation for all computer programs\ndeveloped or modified by employee in the course of his employment by the Corporation. Ownership of all goods, code, and\nmaterials, etc; delivered by employee hereunder is hereby assigned irrevocably to the Corporation, including but not limited to all\ncopyrights, trademarks, trade secrets and patent rights in such goods and materials. Employee agrees to execute and return to the\nCorporation all documents required by the Corporation from time to time to evidence, document or, if necessary, to perfect such\nownership, for any purpose desired by the Corporation, and hereby appoints the Corporation employee’s attorney-in-fact with full\npowers to execute such document itself in the event employee is unable to provide the Corporation with such signed documents.\nIn the event the term of the employee’s employment shall expire or terminate,\n4of5\nCONFIDENTIAL\nemployee agrees not to divulge any of the above information, etc., or to engage or participate, directly or indirectly, for himself or on\nbehalf of or for the benefit of a third party, firm or corporation in developing products based on the information gained during his\nterm of employment by the Corporation. Employee also agrees he will not participate, directly or indirectly, for himself or on behalf\nof or for the benefit of a third party, firm or corporation in soliciting competing products, services and/or solutions to the\nCorporation’s existing customers or proposed customers (which were being solicited by the Corporation during the time of his\nemployment) for a period of two (2) years and will not encourage, induce or attempt to induce any employee of the Corporation to\nleave the employ of the corporation for a period of two (2) years.\nThe employee agrees that these terms are so vitally important to the operation of the business of the Corporation, that any violation of\nthe above conditions will result in their termination of employment, forfeitures of any and all benefits and bonuses accrued, as well as\nentitling the Corporation to any injunctive relief allowed by Law.\nThis Agreement shall be governed by the Laws of the State of New Jersey and there are no understandings, agreements,\nrepresentations, express or implied, not specified herein.\nAGREED TO BY:\n/s/ S. Craig Huke\n10/31/06\nEmployee\n(DATE)\nACCEPTED BY:\n/s/ Dean Goodermote\nFor the Corporation\nTITLE:Chief Executive Officer\n11/1/06\n(DATE)\n5of5\nCONFIDENTIAL	NON-DISCLOSURE CONFIDENTIALITY AGREEMENT\nDOUBLETAKE SOFTWARE, INC.\nS. Craig Huke (hereinafter referred to as the ”employee”) hereby acknowledges that Double-Take Software, Inc., et al. (hereinafter\nreferred to as the ”Corporation") is engaged in the business of developing, selling, distributing, supporting, installing and servicing\ncomputer related software. Both parties agree that the operation of the business and performance of the work of the Corporation\ninvolves special skills, knowledge, trade secrets, special techniques, procedures or names and addresses of the customers, past and\npresent, of the Corporation. The employee acknowledges that he is being employed with the express understanding that all of the\nforegoing shall not be divulged or otherwise disclosed to anyone at any time.\nIt is further understood and agreed to by the employee, that during the time of his employment by the Corporation, that his time and\nefforts will be exclusively devoted to the Corporation' s business, and that he will not participate in any activity of a similar nature\nwith any other entity, in any capacity, (e.g. sales, consulting, engineering, supervision or hands on activity). All computer program\nsource and information relating to such source code, trade secrets, books, manuals, bulletins, work papers, files, reports and other\nrelated materials are the property of the Corporation and must be returned to the Corporation upon request or at the termination of\nemployment, along with any reproductions of such documentation.\nEmployee agrees to hold in confidence and to refrain from using or disclosing to any third party, without prior written consent of\nCorporation, (a( any information disclosed in confidence to employee by the Corporation, and (b( any information developed or\ndelivered by employee during the term of employee' s employment by the Corporation. All computer program source and information\nrelating to such source code received, developed or delivered by employee in connection with his employment shall be deemed\nconfidential information and belonging exclusively to the Corporation for purposes of this paragraph.\nEmployee agrees to provide the Corporation with all source code and complete source code documentation for all computer programs\ndeveloped or modified by employee in the course of his employment by the Corporation. Ownership of all goods, code, and\nmaterials, etc; delivered by employee hereunder is hereby assigned irrevocably to the Corporation, including but not limited to all\ncopyrights, trademarks, trade secrets and patent rights in such goods and materials. Employee agrees to execute and return to the\nCorporation all documents required by the Corporation from time to time to evidence, document or, if necessary, to perfect such\nownership, for any purpose desired by the Corporation, and hereby appoints the Corporation employee's attomey-in-fact with full\npowers to execute such document itself in the event employee is unable to provide the Corporation with such signed documents.\nIn the event the term of the employee' s employment shall expire or terminate,\n4 of 5\nCONFIDENTIAL\nemployee agrees not to divulge any of the above information, etc., or to engage or participate, directly or indirectly, for himself or on\nbehalf of or for the benefit of a third party, firm or corporation in developing products based on the information gained during his\nterm of employment by the Corporation. Employee also agrees he will not participate, directly or indirectly, for himself or on behalf\nof or for the benefit of a third party, firm or corporation in soliciting competing products, services and/or solutions to the\nCorporation' s existing customers or proposed customers (which were being solicited by the Corporation during the time of his\nemployment) for a period of two (2) years and will not encourage, induce or attempt to induce any employee of the Corporation to\nleave the employ of the corporation for a period of two (2) years.\nThe employee agrees that these terms are so vitally important to the operation of the business of the Corporation, that any violation of\nthe above conditions will result in their termination of employment, forfeitures of any and all benefits and bonuses accrued, as well as\nentitling the Corporation to any injunctive relief allowed by Law.\nThis Agreement shall be governed by the Laws of the State of New Jersey and there are no understandings, agreements,\nrepresentations, express or implied, not specified herein.\nAGREED TO BY:\n/s/ S. Craig Huke 10/31/06\nEmployee (DATE)\nACCEPTED BY:\n/s/ Dean Goodermote\nFor the Corporation\nTITLE Chief Executive Officer 11/1/06\n(DATE)\n5 of 5\nCONFIDENTIAL	NON-DISCLOSURE CONFIDENTIALITY AGREEMENT\nDOUBLETAKE SOFTWARE, INC.\nS. Craig Huke (hereinafter referred to as the "employee") hereby acknowledges that Double-Take Software, Inc., et al. (hereinafter\nreferred to as the "Corporation") is engaged in the business of developing, selling, distributing, supporting, installing and servicing\ncomputer related software. Both parties agree that the operation of the business and performance of the work of the Corporation\ninvolves special skills, knowledge, trade secrets, special techniques, procedures or names and addresses of the customers, past and\npresent, of the Corporation. The employee acknowledges that he is being employed with the express understanding that all of the\nforegoing shall not be divulged or otherwise disclosed to anyone at any time.\nIt is further understood and agreed to by the employee, that during the time of his employment by the Corporation that his time\nand\nefforts will be exclusively devoted to the Corporation's business, and that he will not participate in any activity of a similar nature\nwith any other entity, in any capacity, (e.g. sales, consulting engineering, supervision or hands on activity). All computer program\nsource and information relating to such source code, trade secrets, books, manuals, bulletins, work papers, files, reports and other\nrelated materials are the property of the Corporation and must be returned to the Corporation upon request or at the termination of\nemployment, along with any reproductions of such documentation.\nEmployee agrees to hold in confidence and to refrain from using or disclosing to any third party, without prior written consent of\nCorporation, (a( any information disclosed in confidence to employee by the Corporation, and (b( any information developed or\ndelivered by employee during the term of employee's employment by the Corporation. All computer program source and information\nrelating to such source code received, developed or delivered by employee in connection with his employment shall be deemed\nconfidential information and belonging exclusively to the Corporation for purposes of this paragraph.\nEmployee agrees to provide the Corporation with all source code and complete source code documentation for all computer programs\ndeveloped or modified by employee in the course of his employment by the Corporation. Ownership of all goods, code, and\nmaterials, etc; delivered by employee hereunder is hereby assigned irrevocably to the Corporation, including but not limited to all\ncopyrights, trademarks, trade secrets and patent rights in such goods and materials. Employee agrees to execute and return to the\nCorporation all documents required by the Corporation from time to time to evidence, document or, if necessary, to perfect such\nownership, for any purpose desired by the Corporation, and hereby appoints the Corporation employee's attomey-in-fact with full\npowers to execute such document itself in the event employee is unable to provide the Corporation with such signed documents.\nIn the event the term of the employee's employment shall expire or terminate,\n4 of 5\nCONFIDENTIAL\nemployee agrees not to divulge any of the above information, etc., or to engage or participate, directly or indirectly, for himself or on\nbehalf of or for the benefit of a third party, firm or corporation in developing products based on the information gained during his\nterm of employment by the Corporation. Employee also agrees he will not participate, directly or indirectly, for himself or on behalf\nof or for the benefit of a third party, firm or corporation in soliciting competing products, services and/or solutions to the\nCorporation's existing customers or proposed customers (which were being solicited by the Corporation during the time of his\nemployment) for a period of two (2) years and will not encourage, induce or attempt to induce any employee of the Corporation to\nleave the employ of the corporation for a period of two (2) years.\nThe employee agrees that these terms are so vitally important to the operation of the business of the Corporation, that any violation of\nthe above conditions will result in their termination of employment, forfeitures of any and all benefits and bonuses accrued, as well\nas\nentitling the Corporation to any injunctive relief allowed by Law.\nThis Agreement shall be governed by the Laws of the State of New Jersey and there are no understandings, agreements,\nrepresentations, express or implied, not specified herein.\nAGREED TO BY\n/s/ S. Craig Huke\n10/31/06\nEmployee\n(DATE)\nACCEPTED BY:\n/s/ Dean Goodermote\nFor the Corporation\nTITLECH Chief Executive Officer\n11/1/06\n(DATE)\n5 of 5\nCONFIDENTIAL	NON-DISCLOSURE CONFIDENTIALITY AGREEMENT\nDOUBLETAKE SOFTWARE, INC.\nS. Craig Huke (hereinafter referred to as the “employee”) hereby acknowledges that Double-Take Software, Inc., et al. (hereinafter\nreferred to as the “Corporation”) is engaged in the business of developing, selling, distributing, supporting, installing and servicing\ncomputer related software. Both parties agree that the operation of the business and performance of the work of the Corporation\ninvolves special skills, knowledge, trade secrets, special techniques, procedures or names and addresses of the customers, past and\npresent, of the Corporation. The employee acknowledges that he is being employed with the express understanding that all of the\nforegoing shall not be divulged or otherwise disclosed to anyone at any time.\nIt is further understood and agreed to by the employee, that during the time of his employment by the Corporation, that his time and\nefforts will be exclusively devoted to the Corporation’s business, and that he will not participate in any activity of a similar nature\nwith any other entity, in any capacity, (e.g. sales, consulting, engineering, supervision or hands on activity). All computer program\nsource and information relating to such source code, trade secrets, books, manuals, bulletins, work papers, files, reports and other\nrelated materials are the property of the Corporation and must be returned to the Corporation upon request or at the termination of\nemployment, along with any reproductions of such documentation.\nEmployee agrees to hold in confidence and to refrain from using or disclosing to any third party, without prior written consent of\nCorporation, (a( any information disclosed in confidence to employee by the Corporation, and (b( any information developed or\ndelivered by employee during the term of employee’s employment by the Corporation. All computer program source and information\nrelating to such source code received, developed or delivered by employee in connection with his employment shall be deemed\nconfidential information and belonging exclusively to the Corporation for purposes of this paragraph.\nEmployee agrees to provide the Corporation with all source code and complete source code documentation for all computer programs\ndeveloped or modified by employee in the course of his employment by the Corporation. Ownership of all goods, code, and\nmaterials, etc; delivered by employee hereunder is hereby assigned irrevocably to the Corporation, including but not limited to all\ncopyrights, trademarks, trade secrets and patent rights in such goods and materials. Employee agrees to execute and return to the\nCorporation all documents required by the Corporation from time to time to evidence, document or, if necessary, to perfect such\nownership, for any purpose desired by the Corporation, and hereby appoints the Corporation employee’s attorney-in-fact with full\npowers to execute such document itself in the event employee is unable to provide the Corporation with such signed documents.\nIn the event the term of the employee’s employment shall expire or terminate,\n4of5\nCONFIDENTIAL\nemployee agrees not to divulge any of the above information, etc., or to engage or participate, directly or indirectly, for himself or on\nbehalf of or for the benefit of a third party, firm or corporation in developing products based on the information gained during his\nterm of employment by the Corporation. Employee also agrees he will not participate, directly or indirectly, for himself or on behalf\nof or for the benefit of a third party, firm or corporation in soliciting competing products, services and/or solutions to the\nCorporation’s existing customers or proposed customers (which were being solicited by the Corporation during the time of his\nemployment) for a period of two (2) years and will not encourage, induce or attempt to induce any employee of the Corporation to\nleave the employ of the corporation for a period of two (2) years.\nThe employee agrees that these terms are so vitally important to the operation of the business of the Corporation, that any violation of\nthe above conditions will result in their termination of employment, forfeitures of any and all benefits and bonuses accrued, as well as\nentitling the Corporation to any injunctive relief allowed by Law.\nThis Agreement shall be governed by the Laws of the State of New Jersey and there are no understandings, agreements,\nrepresentations, express or implied, not specified herein.\nAGREED TO BY:\n/s/ S. Craig Huke\n10/31/06\nEmployee\n(DATE)\nACCEPTED BY:\n/s/ Dean Goodermote\nFor the Corporation\nTITLE:Chief Executive Officer\n11/1/06\n(DATE)\n5of5\nCONFIDENTIAL
bf331c53fe1197f9f0e634dc3fece13e.pdf	jurisdiction party	EXHIBIT 10.18\nFORM OF NON-DISCLOSURE AGREEMENT\n____________________\n(Company Name), with its principal offices located at _____________ _____________________________________ (Company\nAddress) (herein after called "ABC"), is interested in entering into a business relationship (a "Possible Transaction") with AeroGrow International, Inc. , a Nevada\ncorporation, with its headquarters located at 900 28th Street, Suite 201, Boulder, CO 80303 (herein after called "AeroGrow"). In order to discuss and evaluate the\nPossible Transaction, (a) ABC has requested that disclose AeroGrow disclose to ABC certain confidential and proprietary data and other information of\nsubstantial value to AeroGrow, and (b) AeroGrow has requested that ABC disclose to AeroGrow certain confidential and proprietary data and other information of\nsubstantial value to ABC. This information may be in both oral and written form. Each of ABC and AeroGrow acknowledges that the other's disclosure of its\nconfidential and proprietary data and information to third parties will prejudice its ability to conduct its business successfully. Accordingly, each of ABC and\nAeroGrow agrees that its respective receipt and use of the other's confidential and proprietary data and information will be subject to the following terms and\nconditions:\n1. As used in this Agreement, the following terms have the following meanings:\n(a) "Affiliate" means (i) any other Person directly or indirectly (through one or more intermediaries) controlling, controlled by or under common control with that\nPerson; (ii) any other Person owning or controlling ten percent (10%) or more of the outstanding voting securities or beneficial interests of that Person; or (iii) an\nofficer, director, partner or member, or a member of the immediate family of an officer, director, partner or member, of that Person. For these purposes "control"\nmeans the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership\nor voting securities, by contract or otherwise.\n(b) "Confidential Information" means: (i) all information, data and materials disclosed or made available to the Receiving Party by the Disclosing Party in\nconnection with a Possible Transaction, including, without limitation, all trade secrets, inventions, drawings, file data, test data, documentation, diagrams,\nspecifications, know how, processes, formulas, models, flow charts, software in various stages of development, source codes, object codes, research and\ndevelopment procedures, test results, marketing techniques and materials, marketing and development plans, price lists, pricing policies, business plans,\ninformation relating to customers and/or suppliers' identities, characteristics and agreements, financial information and projection, and employee files and (ii) all\nanalyses, compilations, studies, reports, records or other documents or materials which contain, or are prepared on the basis of any such non-public information\nand which are either furnished to the Receiving Party or are prepared by or for the Receiving Party or any of its directors, officers, employees, members,\nmanagers, agents, advisors or Affiliates. Notwithstanding the above, "Confidential Information" does not include any information that (i) is or becomes public\nknowledge otherwise than by the Receiving Party's act or omission; or (ii) is or becomes available to the Receiving Party without obligation of confidence, of\nwhich the Receiving Party was or should have been aware, from a source (other than the Disclosing Party) having the legal right to disclose that information; or\n(iii) is already in the possession of the Receiving Party in documented form without an obligation of confidence, of which the Receiving Party was or should have\nbeen aware, and was not received by the Receiving Party in anticipation of a Possible Transaction or as a result of a prior relationship with the Disclosing Party.\n(c) "Disclosing Party" means the Person, either ABC or AeroGrow that is disclosing the Confidential Information to the Receiving Party.\n(d) "Person" means any entity, corporation, company, association, joint venture, partnership, trust, limited liability company, limited liability partnership, real\nestate investment trust, organization, individual (including personal representatives, executors and heirs of a deceased individual), nation, state, government\n(including agencies, departments, bureaus, boards, divisions and instrumentalities thereof), court, tribunal, mediator, arbitrator, trustee, receiver or liquidator.\n(e) "Receiving Party" means the Person, either ABC or AeroGrow, that is receiving the Confidential Information from the Disclosing Party.\n(f) "Representative" of a Person means any director, officer, employee, shareholder, partner, member, Affiliate, agent or advisor of that Person, including,\nwithout limitation, any attorney, accountant, consultant, banker or financial advisor of that Person.\n2. The Receiving Party will preserve as confidential all Confidential Information which the Receiving Party may obtain or prepare (a) during the course of\ndiscussions between ABC and AeroGrow concerning a Possible Transaction, (b) during the evaluation of a Possible Transaction and (c) during the course of any\nbusiness relationship which may be established between ABC and AeroGrow. Without the prior written consent of the Disclosing Party, which may be given or\nwithheld by the Disclosing Party in its sole and absolute discretion, the Receiving Party will not (a) disclose or demonstrate any Confidential Information to any\nother Person nor give any other Person access thereto, nor (b) use any Confidential Information except in evaluating a Possible Transaction, nor (c) disclose to\nany other Person either the fact that discussions or negotiations are taking place concerning a Possible Transaction, or the terms, conditions or status thereof or\nthe fact that Confidential Information is being made available to the Receiving Party; provided, however, that any such Confidential Information may be disclosed\nto those of the Receiving Party's Representatives who (i) need to know the same for the sole purpose of evaluating a Possible Transaction and (ii) agree to keep\nsuch Confidential Information confidential and to be bound by the terms of this Agreement to the same extent as if they were parties hereto. If so requested by the\nDisclosing Party, the Receiving Party will cause any such Representatives to execute this Agreement so as to be personally bound hereby. In any event, the\nReceiving Party will be responsible for any breach of this Agreement by any of its Representatives, and the Receiving Party will, at its sole expense, take all\nreasonable measures (including, but not limited to, court proceedings) to restrain its Representatives from any prohibited or unauthorized disclosure or use of the\nConfidential Information. Furthermore, no publicity release or announcement concerning the discussions between ABC and AeroGrow, this Agreement or a\nPossible Transaction will be issued, by either ABC or AeroGrow without the advance written approval of the form and substance thereof by the other. In the event\nthat any such publicity release or announcement is required by law (in the opinion of either party's counsel), ABC or AeroGrow will consult with each other in\nadvance and cooperate with respect to any required press release or other disclosure.\n-2-\n3. If the Receiving Party or any of its Representatives is requested (by subpoena, interrogatory, request for information or documents, civil investigate demand or\nother similar legal process) to disclose any of the Confidential Information to any other Person, the Receiving Party will provide the Disclosing Party with prompt\nwritten notice of such request so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions\nof this Agreement. Thereafter, if the Receiving Party or any such Representative is nevertheless, in the opinion of its counsel, legally compelled to disclose the\nConfidential Information so requested or else stand liable for contempt or suffer other censure or penalty, the Receiving Party or that Representative may, without\nliability hereunder, disclose to such other Person only that portion of the Confidential Information which the Receiving Party's counsel advises is legally required\nto be disclosed. The Receiving Party will, in addition, exercise its best efforts to preserve the confidentiality of the Confidential Information so "disclosed and\ncooperate with the Disclosing Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the\nConfidential Information so disclosed.\n4. The Receiving Party will use at least the same degree of care to avoid the publication, disclosure, reproduction or other dissemination of the Confidential\nInformation as the Receiving Party employs with respect to its own valuable, proprietary information which it protects from unauthorized publication, disclosure,\nreproduction or other dissemination, but no less than a reasonable degree of care.\n5. The Receiving Party will not conduct any inquiries regarding the Confidential Information or a Possible Transaction with any of the Disclosing Party's\nstockholders, officers, members, managers, directors, employees, affiliates, suppliers, proposed business partners or customers or with others having business\nrelationships with the Disclosing Party except through Representatives of the Disclosing Party designated in writing by the Disclosing Party from time to time.\n6. All documents, drawings, records, data bases, programs and other physical media of expression incorporating or containing any Confidential Information\nwhich the Disclosing Party furnishes to the Receiving Party are acknowledged to be the property of the Disclosing Party and will be promptly surrendered to the\nDisclosing Party upon the expiration or termination of the discussions between ABC and AeroGrow or any business relationship which may be established\nbetween ABC and AeroGrow. In addition, except to the extent the Receiving Party is advised by counsel that such action is prohibited by law, the Receiving Party\nwill also destroy all copies, summaries and notes thereof made by the Receiving Party and all analyses, compilations, studies, reports or other documents or\nmaterials which are prepared by the Receiving Party or its advisors and which contain or reflect any Confidential Information which the Disclosing Party furnishes\nto the Receiving Party. After such expiration or termination the Receiving Party will make no further use of any of these materials, and if so requested by the\nDisclosing Party, a duly authorized officer of the Receiving Party will deliver to the Disclosing Party a certificate indicating that the requirements of the immediately\npreceding two sentences have been satisfied in full. The foregoing will apply regardless of the reasons for or circumstances surrounding such expiration or\ntermination.\n-3-\n7. Except as otherwise provided in any binding agreement between ABC and AeroGrow, all designs, methods, processes, developments, ideas and/or inventions\ndirectly related to, or usable in, the Disclosing Party's business which the Receiving Party conceives, develops or reduces to practice, or causes to be conceived,\ndeveloped or reduced to practice, as a result of the Receiving Party's access to the Confidential Information will be the Disclosing Party's sole property. Upon\ndemand and without any further consideration the Receiving Party will confirm such ownership by executing assignments of all of the Receiving Party's rights\ntherein to the Disclosing Party.\n8. The Receiving Party understands that the Disclosing Party makes no representations or warranties as to the accuracy or completeness of any Confidential\nInformation disclosed to the Receiving Party, and the Receiving Party agrees that neither the Disclosing Party nor any of its officers, directors, stockholders,\nmembers, managers, employees, agents or attorneys or controlling Persons within the meaning of Section 20 of the Securities Exchange Act of 1934 will have\nany liability to the Receiving Party arising from the Receiving Party's use of the Confidential Information, except if the Disclosing Party is held to be in breach of\nthis Agreement.\n9. The Receiving Party agrees that money damages will not be a sufficient remedy for any breach of this Agreement by the Receiving Party or any of its\nRepresentatives and that in addition to all other remedies which may be available, the Disclosing Party will be entitled to seek specific performance and injunctive\nor other equitable relied without bond, as a remedy for any such breach or threatened breach.\n10. To the fullest extent permitted by applicable law, rule or regulation, all of the covenants and agreements contained in this Agreement will survive the\ntermination of any discussions between ABC and AeroGrow or the termination or expiration of any business relationship which may hereafter be established\nbetween ABC and AeroGrow, and will also survive any definitive agreements entered into by ABC and AeroGrow, in each such case for a period of three (3)\nyears from the date hereof, unless and only to the extent that such definitive agreements expressly supersede the covenants and agreements contained herein;\nprovided, however, that the provisions of this Agreement relating to the preservation of the confidentiality of the Confidential Information and each party's\nobligation to reimburse the other for all costs incurred by the other in connection with the successful enforcement of this Agreement as to such matters will, in any\nevent, survive for so long as the Confidential Information remains confidential.\n11. This Agreement supersedes all previous agreements, written or oral, relating to the above subject matter, and may be modified only by a written instrument\nduly executed by ABC and AeroGrow.\n12. In the event of any litigation between ABC and AeroGrow in connection with this Agreement, the unsuccessful party to such litigation will pay to the\nsuccessful party therein all reasonable costs and expenses, including but not limited to reasonable attorneys' fees incurred therein by such successful party,\nwhich costs, expenses and attorneys' fees shall be included as a part of any judgment rendered in such action in addition to any other relief to which the\nsuccessful party may be entitled.\n-4-\n13. All clauses and covenants contained in this Agreement are severable and in the event any of them is held to be invalid by any court, this Agreement will be\ninterpreted as if such invalid clauses and covenants were not contained herein.\n14. This Agreement will be construed according to the laws of the State of Colorado, without regard to its principles concerning conflicts of law. Any suit brought\nhereon must be brought in the state or federal courts sitting in the County of Denver, Colorado. ABC and AeroGrow hereby waive any claim or defense that such\nforum is not convenient or proper.\nACKNOWLEDGED AND AGREED\nAS OF _______________:\nACKNOWLEDGED AND AGREED\nAS OF _______________ , 2 0__ __:\nAEROGROW INTERNATIONAL, INC .\nF. Wiedemann, VP\n-5-	EXHIBIT 10.18\nFORM OF NON-DISCLOSURE AGREEMENT\n \n(Company Name), with is principal offices located at __________________________________________________ (Company\nAddress) (herein after called "ABC"), is interested in entering into a business relationship (a "Possible Transaction") with AeroGrow International, Inc., a Nevada\ncorporation, with is headquarters located at 900 28th Street, Suite 201, Boulder, CO 80303 (herein after called "AeroGrow"). In orderto discuss and evaluate the\nPossible Transaction, (a) ABC has requested that disclose AeroG row disclose to ABC certain confidential and proprietary data and other information of\nsubstantial value to AeroG row, and (b) AeroG row has requested thatABC disclose to AeroG row certain confidential and proprietary data and other information of\nsubstantial value to ABC. This information may be in both oral and written form. Each ofABC and AeroG row acknowledges that the other's disclosure of is\nconfidential and proprietary data and information to third parties will prejudice is ability to conduct is business successfully. Accordingly, each ofABC and\nAeroG row agrees that is respective receipt and use of the other's confidential and proprietary data and information will be subjectto the following terms and\nconditions:\n1. As used in this Agreement, the following terms have the following meanings:\n(a) "Affiliate" means (i) any other Person directly or indirectly (through one or more intermediaries) controlling, controlled by or under common control with that\nPerson; (ii) any other Person owning or controlling ten percent (10%) or more of the outstanding voting securities or beneficial interess of that Person; or (iii) an\nofficer, director, partner or member, or a member of the immediate family of an officer, director, partner or member, of that Person. For these purposes "control"\nmeans the possession, director indirect, of the power to director cause the direction of the management and policies of a Person, whether through the ownership\nor voting securities, by contractor otherwise.\n(b) "Confidential Information" means: (i) all information, data and materials disclosed or made available to the Receiving Party by the Disclosing Party in\nconnection with a Possible Transaction, including, without limitation, all trade secres, inventions, drawings, file data, test data, documentation, diagrams,\nspecifications, know how, processes, formulas, models, flow charts, software in various stages ofdevelopment, source codes, objectcodes, research and\ndevelopment procedures, test results, marketing techniques and materials, marketing and development plans, price lists, pricing policies, business plans,\ninformation relating to customers and/or suppliers' identities, characteristics and agreements, financial information and projection, and employee files and (ii) all\nanalyses, compilations, studies, repors, records or other documents or materials which contain, or are prepared on the basis of any such non-public information\nand which are either furnished to the Receiving Party or are prepared by or for the Receiving Party or any of is directors, officers, employees, members,\nmanagers, agens, advisors or Affiliates. Notwithstanding the above, "Confidential Information" does notinclude any information that(i) is or becomes public\nknowledge othenNise than by the Receiving Party's actor omission; or (ii) is or becomes available to the Receiving Party withoutobligation ofconfidence, of\nwhich the Receiving Party was or should have been aware, from a source (other than the Disclosing Party) having the legal right to disclose that information; or\n(iii) is already in the possession of the Receiving Party in documented form without an obligation ofconfidence, ofwhich the Receiving Party was or should have\nbeen aware, and was not received by the Receiving Party in anticipation of a Possible Transaction or as a resultof a prior relationship with the Disclosing Party.\n \n(c) " isclosing Party" means the Person, either ABC or AeroGrow thatis disclosing the Confidential Information to the Receiving Party.\n(d) "Person" means any entity, corporation, company, association, joint venture, partnership, trust, limited liability company, limited liability partnership, real\nestate investment trust, organization, individual (including personal representatives, executors and heirs of a deceased individual), nation, state, government\n(including agencies, departments, bureaus, boards, divisions and instrumentalities thereof), court, tribunal, mediator, arbitrator, trustee, receiver or liquidator.\n(e) " eceiving Par_ty" means the Person, either ABC or AeroGrow, thatis receiving the Confidential Information from the Disclosing Party.\n(f) " epresentative" of a Person means any director, officer, employee, shareholder, partner, member, Affiliate, agentor advisorofthat Person, including,\nwithout limitation, any attorney, accountant, consultant, banker or financial advisor of that Person.\n2. The Receiving Party will preserve as confidential all Confidential Information which the Receiving Party may obtain or prepare (a) during the course of\ndiscussions between ABC and AeroG row concerning a Possible Transaction, (b) during the evaluation of a Possible Transaction and (c) during the course of any\nbusiness relationship which may be established between ABC and AeroG row. Withoutthe prior written consentof the Disclosing Party, which may be given or\nwithheld by the Disclosing Party in is sole and absolute discretion, the Receiving Party will not (a) disclose or demonstrate any Confidential Information to any\nother Person nor give any other Person access thereto, nor (b) use any Confidential Information except in evaluating a Possible Transaction, nor (c) disclose to\nany other Person either the factthatdiscussions or negotiations are taking place concerning a Possible Transaction, or the terms, conditions or status thereofor\nthe factthat Confidential Information is being made available to the Receiving Party; provided, however, that any such Confidential Information may be disclosed\nto those of the Receiving Party's Representatives who (i) need to know the same for the sole purpose ofevaluating a Possible Transaction and (ii) agree to keep\nsuch Confidential Information confidential and to be bound by the terms of this Agreement to the same extent as if they were parties hereto. Ifso requested by the\nDisclosing Party, the Receiving Party will cause any such Representatives to execute this Agreement so as to be personally bound hereby. In any event, the\nReceiving Party will be responsible for any breach of this Agreement by any of is Representatives, and the Receiving Party will, at is sole expense, take all\nreasonable measures (including, but not limited to, court proceedings) to restrain is Representatives from any prohibited or unauthorized disclosure or use of the\nConfidential Information. Furthermore, no publicity release or announcementconcerning the discussions between ABC and AeroG row, this Agreement or a\nPossible Transaction will be issued, by either ABC or AeroG row without the advance written approval of the form and substance thereof by the other. In the event\nthat any such publicity release or announcement is required by law (in the opinion ofeither party's counsel), ABC or AeroG row will consultwith each other in\nadvance and cooperate with respectto any required press release or other disclosure.\n \n3. Ifthe Receiving Party or any of its Representatives is requested (by subpoena, interrogatory, requestfor information or documents, civil investigate demand or\nother similar legal process) to disclose any ofthe Confidential Information to any other Person, the Receiving Party will provide the Disclosing Party with prompt\nwritten notice ofsuch requestso thatthe Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions\nof this Agreement. Thereafter, if the Receiving Party or any such Representative is nevertheless, in the opinion of its counsel, legally compelled to disclose the\nConfidential Information so requested or else stand liable for contemptor suffer other censure or penalty, the Receiving Party or that Representative may, without\nliability hereunder, disclose to such other Person only that portion of the Confidential Information which the Receiving Party's counsel advises is legally required\nto be disclosed. The Receiving Party will, in addition, exercise its bestefforts to preserve the confidentiality of the Confidential Information so "disclosed and\ncooperate with the Disclosing Party to obtain an appropriate protective order or other reliable assurance thatconfidential treatmentwill be accorded to the\nConfidential Information so disclosed.\n4. The Receiving Party will use at least the same degree of care to avoid the publication, disclosure, reproduction or other dissemination of the Confidential\nInformation as the Receiving Party employs with respect to its own valuable, proprietary information which it protects from unauthorized publication, disclosure,\nreproduction or other dissemination, but no less than a reasonable degree ofcare.\n5. The Receiving Party will notconduct any inquiries regarding the Confidential Information or a Possible Transaction with any of the Disclosing Party's\nstockholders, officers, members, managers, directors, employees, affiliates, suppliers, proposed business partners or customers or with others having business\nrelationships with the Disclosing Party except through Representatives of the Disclosing Party designated in writing by the Disclosing Party from time to time.\n6. All documents, drawings, records, data bases, programs and other physical media of expression incorporating or containing any Confidential Information\nwhich the Disclosing Party furnishes to the Receiving Party are acknowledged to be the property of the Disclosing Party and will be promptly surrendered to the\nDisclosing Party upon the expiration or termination of the discussions between ABC and AeroG row or any business relationship which may be established\nbetween ABC and AeroG row. In addition, except to the extent the Receiving Party is advised by counsel thatsuch action is prohibited by law, the Receiving Party\nwill also destroy all copies, summaries and notes thereof made by the Receiving Party and all analyses, compilations, studies, reports or other documents or\nmaterials which are prepared by the Receiving Party or its advisors and which contain or reflect any Confidential Information which the Disclosing Party furnishes\nto the Receiving Party. After such expiration or termination the Receiving Party will make no further use of any ofthese materials, and ifso requested by the\nDisclosing Party, a duly authorized officer of the Receiving Party will deliver to the Disclosing Party a certificate indicating thatthe requirements ofthe immediately\npreceding two sentences have been satisfied in full. The foregoing will apply regardless of the reasons for or circumstances surrounding such expiration or\ntermination.\n.3.\n \n7. Except as othenNise provided in any binding agreement between ABC and AeroG row, all designs, methods, processes, developments, ideas and/or inventions\ndirectly related to, or usable in, the Disclosing Party's business which the Receiving Party conceives, develops or reduces to practice, or causes to be conceived,\ndeveloped or reduced to practice, as a result of the Receiving Party's access to the Confidential Information will be the Disclosing Party's sole property. Upon\ndemand and without any further consideration the Receiving Party will confirm such ownership by executing assignments of all of the Receiving Party's rights\ntherein to the Disclosing Party.\n8. The Receiving Party understands thatthe Disclosing Party makes no representations or warranties as to the accuracy or completeness ofany Confidential\nInformation disclosed to the Receiving Party, and the Receiving Party agrees that neither the Disclosing Party nor any of its officers, directors, stockholders,\nmembers, managers, employees, agents or attorneys or controlling Persons within the meaning of Section 20 of the Securities Exchange Act of 1934 will have\nany liability to the Receiving Party arising from the Receiving Party's use ofthe Confidential Information, except if the Disclosing Party is held to be in breach of\nthis Agreement.\n9. The Receiving Party agrees that money damages will not be a sufficient remedy for any breach of this Agreement by the Receiving Party or any of its\nRepresentatives and that in addition to all other remedies which may be available, the Disclosing Party will be entitled to seek specific performance and injunctive\nor other equitable relied without bond, as a remedy for any such breach or threatened breach.\n10. To the fullestextent permitted by applicable law, rule or regulation, all of the covenants and agreements contained in this Agreement will sun/ive the\ntermination of any discussions between ABC and AeroG row or the termination or expiration of any business relationship which may hereafter be established\nbetween ABC and AeroG row, and will also survive any definitive agreements entered into by ABC and AeroG row, in each such case for a period ofthree (3)\nyears from the date hereof, unless and only to the extentthatsuch definitive agreements expressly supersede the covenants and agreements contained herein;\nprovided, however, thatthe provisions of this Agreement relating to the preservation of the confidentiality of the Confidential Information and each party's\nobligation to reimburse the other for all costs incurred by the other in connection with the successful enforcement of this Agreement as to such matters will, in any\nevent, sun/ive for so long as the Confidential Information remains confidential.\n11. This Agreement supersedes all previous agreements, written or oral, relating to the above subject matter, and may be modified only by a written instrument\nduly executed by ABC and AeroG row.\n12. In the event of any litigation between ABC and AeroG row in connection with this Agreement, the unsuccessful party to such litigation will pay to the\nsuccessful party therein all reasonable costs and expenses, including but not limited to reasonable attorneys' fees incurred therein by such successful party,\nwhich costs, expenses and attorneys' fees shall be included as a part of anyjudgment rendered in such action in addition to any other relief to which the\nsuccessful party may be entitled.\n.4.\n \n13. All clauses and covenants contained in this Agreement are severable and in the event any of them is held to be invalid by any court, this Agreementwill be\ninterpreted as if such invalid clauses and covenants were not contained herein.\n14. This Agreement will be construed according to the laws of the State of Colorado, without regard to its principles concerning conflicts of law. Any suit brought\nhereon must be brought in the state or federal courts sitting in the County of Denver, Colorado. ABC and AeroG row hereby waive any claim or defense thatsuch\nforum is not convenient or proper.\nACKNOWLEDGED AND AGREED\nACKNOWLEDGED AND AGREED\nAEROG ROW INTERNATIONAL, INC.\nF. Wiedemann, VP	EXHIBIT 10.18\nFORM OF NON-DISCLOSURE AGREEMENT\nCompany Name), with its principal offices located at\n(Company\nAddress) (herein after called "ABC"), is interested in entering into a business relationship (a "Possible Transaction") with AeroGrov International, Inc., a Nevada\ncorporation, with its headquarters located at 900 28th Street, Suite 201, Boulder, CO 80303 (herein after called "AeroGrow"). In order to discuss and evaluate the\nPossible Transaction, (a) ABC has requested that disclose AeroGrow disclose to ABC certain confidential and proprietary data and other information of\nsubstantial value to AeroGrow, and (b) AeroGrow has requested that ABC disclose to AeroGrow certain confidential and proprietary data and other information of\nsubstantial value to ABC. This information may be in both oral and written form. Each of ABC and AeroGrow acknowledges that the other's disclosure of its\nconfidential and proprietary data and information to third parties will prejudice its ability to conduct its business successfully. Accordingly, each of ABC and\nAeroGrow agrees that its respective receipt and use of the other's confidential and proprietary data and information wil be subject to the following terms and\nconditions:\n1. As used in this Agreement, the following terms have the following meanings:\n(a) "Affiliate" means (i) any other Person directly or indirectly (through one or more intermediaries controlling, controlled by or under common control with that\nPerson; (ii) any other Person owning or controlling ten percent (10%) or more of the outstanding voting securities or beneficial interests of that Person; or (iii) an\nofficer, director, partner or member, or a member of the immediate family of an officer, director, partner or member, of that Person. or these purposes "control"\nmeans the possession direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership\nor voting securities, by contract or otherwise.\n(b) "Confidential Information" means: (i) all information, data and materials disclosed or made available to the Receiving Party by the Disclosing Party in\nconnection with a Possible Transaction, including, without limitation, all trade secrets, inventions, drawings, file data test data, documentation, diagrams,\nspecifications, know how, processes, formulas, models, flow charts, software in various stages of development, source codes, object codes, research and\ndevelopment procedures, test results, marketing techniques and materials, marketing and development plans, price lists, pricing policies, business plans,\ninformation relating to customers and/or suppliers' identities, characteristics and agreements, financial information and projection, and employee files and (ii) all\nanalyses, compilations, studies, reports, records or other documents or materials which contain, or are prepared on the basis of any such non-public information\nand which are either furnished to the Receiving Party or are prepared by or for the Receiving Party or any of its directors, officers, employees, members,\nmanagers, agents, advisors or Affiliates. Notwithstanding the above, "Confidential Information" does not include any information that (i) is or becomes public\nknowledge otherwise than by the Receiving Party's act or omission; or (ii) is or becomes available to the Receiving arty without obligation of confidence, of\nwhich the Receiving Party was or should have been aware, from a source (other than the Disclosing Party) having the legal right to disclose that information;\nor\n(iii) is already in the possession of the Receiving Party in documented form without an obligation of confidence, of which the Receiving Party was or should have\nbeen aware, and was not received by the eceiving Party in anticipation of a Possible Transaction or as a result of a prior relationship with the Disclosing Party.\n(c)\n"Disclosing Party" means the Person, either ABC or AeroGrow that is disclosing the Confidential Information to the Receiving Party.\n(d) "Person" means any entity, corporation, company, association, joint venture, partnership, trust, limited liability company, limited liability partnership, real\nestate investment trust, organization, individual (including personal representatives, executors and heirs of a deceased individual), nation, state, government\n(including agencies, departments, bureaus, boards, divisions and instrumentalities thereof), court, tribunal, mediator, arbitrator, trustee, receiver or liquidator.\n(e)\n"Receiving Party" means the Person, either ABC or AeroGrow, that is receiving the Confidentia Information from the Disclosing Party.\n(f) 'Representative" of a Person means any director, officer, employee, shareholder, partner, member, Affiliate, agent or advisor of that Person, including,\nwithout limitation, any attorney, accountant, consultant, banker or financial advisor of that Person.\n2. The Receiving Party will preserve as confidential all Confidential Information which the Receiving Party may obtain or prepare (a) during the course of\ndiscussions between ABC and AeroGrow concerning a Possible Transaction, (b) during the evaluation of a Possible Transaction and (c) during the course of any\nbusiness relationship which may be established between ABC and AeroGrow Vithout the prior written consent of the Disclosing arty, which may be given or\nwithheld by the Disclosing Party in its sole and absolute discretion, the eceiving Party will not (a) disclose or demonstrate any Confidential Information to any\nother Person nor give any other Person access thereto, nor (b) use any Confidential Information except in evaluating a Possible Transaction, nor (c) disclose\nto\nany other Person either the fact that discussions or negotiations are taking place concerning a Possible Transaction, or the terms, conditions or status thereof\nor\nthe fact that Confidential Information is being made available to the Receiving Party; provided, however, that any such Confidential Information may be disclosed\nto those of the Receiving Party's Representatives who (i) need to know the same for the sole purpose of evaluating a Possible Transaction and (ii) agree to keep\nsuch Confidential Information confidential and to be bound by the terms of this Agreement to the same extent as if they were parties hereto. If so requested by the\nDisclosing Party, the eceiving Party will cause any such Representatives to execute this Agreement so as to be personally bound hereby. In any event, the\nReceiving Party will be responsible for any breach of this Agreement by any of its Representatives, and the Receiving Party will, at its sole expense, take all\nreasonable measures (including, but not limited to, court proceedings) to restrain its Representatives from any prohibited or unauthorized disclosure or use of the\nConfidential Information Furthermore, no publicity release or announcement concerning the discussions between ABC and AeroGrow, this Agreement or a\nPossible Transaction wil be issued, by either ABC or AeroGrow without the advance written approval of the form and substance thereof by the other. In the event\nthat any such publicity release or announcement is required by law (in the opinion of either party's counsel), ABC or AeroGrow will consult with each other in\nadvance and cooperate with respect to any required press release or other disclosure.\n-2-\n3. If the Receiving arty or any of its Representatives is requested (by subpoena, interrogatory, request for information or documents, civil investigate demand or\nother similar legal process) to disclose any of the Confidential Information to any other Person, the eceiving Party wil provide the Disclosing arty with prompt\nwritten notice of such request so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions\nof this Agreement. Thereafter, if the eceiving Party or any such Representative is nevertheless, in the opinion of its counsel, legally compelled to disclose the\nConfidential Information so requested or else stand liable for contempt or suffer other censure or penalty the R eceiving Party or that R epresentative may, without\nliability hereunder, disclose to such other erson only that portion of the Confidentia Information which the Receiving arty's counse advises is legally required\nto be disclosed. The R eceiving Party will, in addition, exercise its best efforts to preserve the confidentiality of the Confidential Information so "disclosed and\ncooperate with the Disclosing Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the\nConfidential Information so disclosed.\n4. The Receiving Party will use at least the same degree of care to avoid the publication, disclosure, reproduction or other dissemination of the Confidential\nInformation as the Receiving arty employs with respect to its own valuable, proprietary information which it protects from unauthorized publication, disclosure,\nreproduction or other dissemination, but no less than a reasonable degree of care.\n5. The Receiving Party will not conduct any inquiries regarding the Confidential Information or a Possible Transaction with any of the Disclosing Party's\nstockholders, officers, members, managers, directors, employees, affiliates, suppliers, proposed business partners or customers or with others having business\nrelationships with the Disclosing Party except through R epresentatives of the Disclosing Party designated in writing by the Disclosing Party from time to time.\n6. AIl documents, drawings, records, data bases, programs and other physical media of expression incorporating or containing any Confidential Information\nwhich the Disclosing Party furnishes to the R eceiving Party are acknowledged to be the property of the Disclosing arty and will be promptly surrendered to the\nDisclosing arty upon the expiration or termination of the discussions between ABC and AeroG row or any business relationship which may be established\nbetween ABC and AeroGrov In addition, except to the extent the Receiving Party is advised by counsel that such action is prohibited by law, the Receiving Party\nwil also destroy all copies, summaries and notes thereof made by the Receiving Party and all analyses, compilations, studies, reports or other documents or\nmaterials which are prepared by the R eceiving arty or its advisors and which contain or reflect any Confidential Information which the Disclosing Party furnishes\nto the Receiving Party After such expiration or termination the eceiving Party will make no further use of any of these materials, and if so requested by the\nDisclosing arty, a duly authorized officer of the R eceiving Party will deliver to the Disclosing arty a certificate indicating that the requirements of the immediately\npreceding two sentences have been satisfied in full. The foregoing will apply regardless of the reasons for or circumstances surrounding such expiration or\ntermination.\n-3-\n7. Except as otherwise provided in any binding agreement between ABC and AeroGrow, all designs, methods, processes, developments, ideas and/or inventions\ndirectly related to, or usable in, the Disclosing arty's business which the R eceiving Party conceives, develops or reduces to practice, or causes to be conceived,\ndeveloped or reduced to practice, as a result of the Receiving Party's access to the Confidential Information wil be the Disclosing Party's sole property. U pon\ndemand and without any further consideration the Receiving P arty will confirm such ownership by executing assignments of all of the Receiving arty's rights\ntherein to the Disclosing Party.\n8.\nThe Receiving Party understands that the Disclosing Party makes no representations or warranties as to the accuracy or completeness of any Confidential\nInformation disclosed to the Receiving arty, and the Receiving Party agrees that neither the Disclosing Party nor any of its officers, directors, stockholders,\nmembers, managers, employees, agents or attorneys or controlling ersons within the meaning of Section 20 of the Securities xchange Act of 1934 will have\nany liability to the Receiving Party arising from the Receiving Party's use of the Confidentia Information, except if the Disclosing Party is held to be in breach\nof\nthis Agreement.\n9. The Receiving Party agrees that money damages will not be a sufficient remedy for any breach of this Agreement by the Receiving P arty or any of its\nRepresentatives and that in addition to all other remedies which may be available, the Disclosing arty wil be entitled to seek specific performance and injunctive\nor other equitable relied without bond, as a remedy for any such breach or threatened breach.\n10. To the fullest extent permitted by applicable law, rule or regulation, all of the covenants and agreements contained in this Agreement will survive the\ntermination of any discussions between ABC and AeroGrow or the termination or expiration of any business relationship which may hereafter be established\nbetween ABC and AeroGro and will also survive any definitive agreements entered into by ABC and AeroGrow, in each such case for a period of three (3)\nyears from the date hereof, unless and only to the extent that such definitive agreements expressly supersede the covenants and agreements contained herein;\nprovided, however, that the provisions of this Agreement relating to the preservation of the confidentiality of the Confidentia Information and each party's\nobligation to reimburse the other for all costs incurred by the other in connection with the successful enforcement of this Agreement as to such matters will, in any\nevent, survive for so long as the Confidential Information remains confidential.\n11. This Agreement supersedes all previous agreements, written or oral, relating to the above subject matter, and may be modified only by a written instrument\nduly executed by ABC and AeroGrow.\n12. In the event of any litigation between ABC and AeroG row in connection with this Agreement, the unsuccessful party to such litigation wil pay to the\nsuccessful party therein all reasonable costs and expenses, including but not limited to reasonable attorneys' fees incurred therein by such successful party,\nwhich costs, expenses and attorneys' fees shall be included as a part of any judgment rendered in such action in addition to any other relief to which the\nsuccessful party may be entitled.\n-4-\n13. All clauses and covenants contained in this Agreement are severable and in the event any of them is held to be invalid by any court, this Agreement will be\ninterpreted as if such invalid clauses and covenants were not contained herein.\n14. This Agreement will be construed according to the laws of the State of Colorado, without regard to its principles concerning conflicts of law. Any suit brought\nhereon must be brought in the state or federal courts sitting in the County of Denver, Colorado. ABC and AeroGrow hereby waive any claim or defense that such\nforum is not convenient or proper.\nACKNOWLEDGED AND AGREED\nAS OF\nACKNOWLEDGED AND AGREED\nAS OF\n20\n:\nAEROGROW INTERNATIONAL, INC.\nF. Wiedemann, VP\n-5-	EXHIBIT 10.18\nFORM OF NON-DISCLOSURE AGREEMENT\n____________________\n(Company Name), with its principal offices located at _____________ _____________________________________ (Company\nAddress) (herein after called "ABC"), is interested in entering into a business relationship (a "Possible Transaction") with AeroGrow International, Inc. , a Nevada\ncorporation, with its headquarters located at 900 28th Street, Suite 201, Boulder, CO 80303 (herein after called "AeroGrow"). In order to discuss and evaluate the\nPossible Transaction, (a) ABC has requested that disclose AeroGrow disclose to ABC certain confidential and proprietary data and other information of\nsubstantial value to AeroGrow, and (b) AeroGrow has requested that ABC disclose to AeroGrow certain confidential and proprietary data and other information of\nsubstantial value to ABC. This information may be in both oral and written form. Each of ABC and AeroGrow acknowledges that the other's disclosure of its\nconfidential and proprietary data and information to third parties will prejudice its ability to conduct its business successfully. Accordingly, each of ABC and\nAeroGrow agrees that its respective receipt and use of the other's confidential and proprietary data and information will be subject to the following terms and\nconditions:\n1. As used in this Agreement, the following terms have the following meanings:\n(a) "Affiliate" means (i) any other Person directly or indirectly (through one or more intermediaries) controlling, controlled by or under common control with that\nPerson; (ii) any other Person owning or controlling ten percent (10%) or more of the outstanding voting securities or beneficial interests of that Person; or (iii) an\nofficer, director, partner or member, or a member of the immediate family of an officer, director, partner or member, of that Person. For these purposes "control"\nmeans the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership\nor voting securities, by contract or otherwise.\n(b) "Confidential Information" means: (i) all information, data and materials disclosed or made available to the Receiving Party by the Disclosing Party in\nconnection with a Possible Transaction, including, without limitation, all trade secrets, inventions, drawings, file data, test data, documentation, diagrams,\nspecifications, know how, processes, formulas, models, flow charts, software in various stages of development, source codes, object codes, research and\ndevelopment procedures, test results, marketing techniques and materials, marketing and development plans, price lists, pricing policies, business plans,\ninformation relating to customers and/or suppliers' identities, characteristics and agreements, financial information and projection, and employee files and (ii) all\nanalyses, compilations, studies, reports, records or other documents or materials which contain, or are prepared on the basis of any such non-public information\nand which are either furnished to the Receiving Party or are prepared by or for the Receiving Party or any of its directors, officers, employees, members,\nmanagers, agents, advisors or Affiliates. Notwithstanding the above, "Confidential Information" does not include any information that (i) is or becomes public\nknowledge otherwise than by the Receiving Party's act or omission; or (ii) is or becomes available to the Receiving Party without obligation of confidence, of\nwhich the Receiving Party was or should have been aware, from a source (other than the Disclosing Party) having the legal right to disclose that information; or\n(iii) is already in the possession of the Receiving Party in documented form without an obligation of confidence, of which the Receiving Party was or should have\nbeen aware, and was not received by the Receiving Party in anticipation of a Possible Transaction or as a result of a prior relationship with the Disclosing Party.\n(c) "Disclosing Party" means the Person, either ABC or AeroGrow that is disclosing the Confidential Information to the Receiving Party.\n(d) "Person" means any entity, corporation, company, association, joint venture, partnership, trust, limited liability company, limited liability partnership, real\nestate investment trust, organization, individual (including personal representatives, executors and heirs of a deceased individual), nation, state, government\n(including agencies, departments, bureaus, boards, divisions and instrumentalities thereof), court, tribunal, mediator, arbitrator, trustee, receiver or liquidator.\n(e) "Receiving Party" means the Person, either ABC or AeroGrow, that is receiving the Confidential Information from the Disclosing Party.\n(f) "Representative" of a Person means any director, officer, employee, shareholder, partner, member, Affiliate, agent or advisor of that Person, including,\nwithout limitation, any attorney, accountant, consultant, banker or financial advisor of that Person.\n2. The Receiving Party will preserve as confidential all Confidential Information which the Receiving Party may obtain or prepare (a) during the course of\ndiscussions between ABC and AeroGrow concerning a Possible Transaction, (b) during the evaluation of a Possible Transaction and (c) during the course of any\nbusiness relationship which may be established between ABC and AeroGrow. Without the prior written consent of the Disclosing Party, which may be given or\nwithheld by the Disclosing Party in its sole and absolute discretion, the Receiving Party will not (a) disclose or demonstrate any Confidential Information to any\nother Person nor give any other Person access thereto, nor (b) use any Confidential Information except in evaluating a Possible Transaction, nor (c) disclose to\nany other Person either the fact that discussions or negotiations are taking place concerning a Possible Transaction, or the terms, conditions or status thereof or\nthe fact that Confidential Information is being made available to the Receiving Party; provided, however, that any such Confidential Information may be disclosed\nto those of the Receiving Party's Representatives who (i) need to know the same for the sole purpose of evaluating a Possible Transaction and (ii) agree to keep\nsuch Confidential Information confidential and to be bound by the terms of this Agreement to the same extent as if they were parties hereto. If so requested by the\nDisclosing Party, the Receiving Party will cause any such Representatives to execute this Agreement so as to be personally bound hereby. In any event, the\nReceiving Party will be responsible for any breach of this Agreement by any of its Representatives, and the Receiving Party will, at its sole expense, take all\nreasonable measures (including, but not limited to, court proceedings) to restrain its Representatives from any prohibited or unauthorized disclosure or use of the\nConfidential Information. Furthermore, no publicity release or announcement concerning the discussions between ABC and AeroGrow, this Agreement or a\nPossible Transaction will be issued, by either ABC or AeroGrow without the advance written approval of the form and substance thereof by the other. In the event\nthat any such publicity release or announcement is required by law (in the opinion of either party's counsel), ABC or AeroGrow will consult with each other in\nadvance and cooperate with respect to any required press release or other disclosure.\n-2-\n3. If the Receiving Party or any of its Representatives is requested (by subpoena, interrogatory, request for information or documents, civil investigate demand or\nother similar legal process) to disclose any of the Confidential Information to any other Person, the Receiving Party will provide the Disclosing Party with prompt\nwritten notice of such request so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions\nof this Agreement. Thereafter, if the Receiving Party or any such Representative is nevertheless, in the opinion of its counsel, legally compelled to disclose the\nConfidential Information so requested or else stand liable for contempt or suffer other censure or penalty, the Receiving Party or that Representative may, without\nliability hereunder, disclose to such other Person only that portion of the Confidential Information which the Receiving Party's counsel advises is legally required\nto be disclosed. The Receiving Party will, in addition, exercise its best efforts to preserve the confidentiality of the Confidential Information so "disclosed and\ncooperate with the Disclosing Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the\nConfidential Information so disclosed.\n4. The Receiving Party will use at least the same degree of care to avoid the publication, disclosure, reproduction or other dissemination of the Confidential\nInformation as the Receiving Party employs with respect to its own valuable, proprietary information which it protects from unauthorized publication, disclosure,\nreproduction or other dissemination, but no less than a reasonable degree of care.\n5. The Receiving Party will not conduct any inquiries regarding the Confidential Information or a Possible Transaction with any of the Disclosing Party's\nstockholders, officers, members, managers, directors, employees, affiliates, suppliers, proposed business partners or customers or with others having business\nrelationships with the Disclosing Party except through Representatives of the Disclosing Party designated in writing by the Disclosing Party from time to time.\n6. All documents, drawings, records, data bases, programs and other physical media of expression incorporating or containing any Confidential Information\nwhich the Disclosing Party furnishes to the Receiving Party are acknowledged to be the property of the Disclosing Party and will be promptly surrendered to the\nDisclosing Party upon the expiration or termination of the discussions between ABC and AeroGrow or any business relationship which may be established\nbetween ABC and AeroGrow. In addition, except to the extent the Receiving Party is advised by counsel that such action is prohibited by law, the Receiving Party\nwill also destroy all copies, summaries and notes thereof made by the Receiving Party and all analyses, compilations, studies, reports or other documents or\nmaterials which are prepared by the Receiving Party or its advisors and which contain or reflect any Confidential Information which the Disclosing Party furnishes\nto the Receiving Party. After such expiration or termination the Receiving Party will make no further use of any of these materials, and if so requested by the\nDisclosing Party, a duly authorized officer of the Receiving Party will deliver to the Disclosing Party a certificate indicating that the requirements of the immediately\npreceding two sentences have been satisfied in full. The foregoing will apply regardless of the reasons for or circumstances surrounding such expiration or\ntermination.\n-3-\n7. Except as otherwise provided in any binding agreement between ABC and AeroGrow, all designs, methods, processes, developments, ideas and/or inventions\ndirectly related to, or usable in, the Disclosing Party's business which the Receiving Party conceives, develops or reduces to practice, or causes to be conceived,\ndeveloped or reduced to practice, as a result of the Receiving Party's access to the Confidential Information will be the Disclosing Party's sole property. Upon\ndemand and without any further consideration the Receiving Party will confirm such ownership by executing assignments of all of the Receiving Party's rights\ntherein to the Disclosing Party.\n8. The Receiving Party understands that the Disclosing Party makes no representations or warranties as to the accuracy or completeness of any Confidential\nInformation disclosed to the Receiving Party, and the Receiving Party agrees that neither the Disclosing Party nor any of its officers, directors, stockholders,\nmembers, managers, employees, agents or attorneys or controlling Persons within the meaning of Section 20 of the Securities Exchange Act of 1934 will have\nany liability to the Receiving Party arising from the Receiving Party's use of the Confidential Information, except if the Disclosing Party is held to be in breach of\nthis Agreement.\n9. The Receiving Party agrees that money damages will not be a sufficient remedy for any breach of this Agreement by the Receiving Party or any of its\nRepresentatives and that in addition to all other remedies which may be available, the Disclosing Party will be entitled to seek specific performance and injunctive\nor other equitable relied without bond, as a remedy for any such breach or threatened breach.\n10. To the fullest extent permitted by applicable law, rule or regulation, all of the covenants and agreements contained in this Agreement will survive the\ntermination of any discussions between ABC and AeroGrow or the termination or expiration of any business relationship which may hereafter be established\nbetween ABC and AeroGrow, and will also survive any definitive agreements entered into by ABC and AeroGrow, in each such case for a period of three (3)\nyears from the date hereof, unless and only to the extent that such definitive agreements expressly supersede the covenants and agreements contained herein;\nprovided, however, that the provisions of this Agreement relating to the preservation of the confidentiality of the Confidential Information and each party's\nobligation to reimburse the other for all costs incurred by the other in connection with the successful enforcement of this Agreement as to such matters will, in any\nevent, survive for so long as the Confidential Information remains confidential.\n11. This Agreement supersedes all previous agreements, written or oral, relating to the above subject matter, and may be modified only by a written instrument\nduly executed by ABC and AeroGrow.\n12. In the event of any litigation between ABC and AeroGrow in connection with this Agreement, the unsuccessful party to such litigation will pay to the\nsuccessful party therein all reasonable costs and expenses, including but not limited to reasonable attorneys' fees incurred therein by such successful party,\nwhich costs, expenses and attorneys' fees shall be included as a part of any judgment rendered in such action in addition to any other relief to which the\nsuccessful party may be entitled.\n-4-\n13. All clauses and covenants contained in this Agreement are severable and in the event any of them is held to be invalid by any court, this Agreement will be\ninterpreted as if such invalid clauses and covenants were not contained herein.\n14. This Agreement will be construed according to the laws of the State of Colorado, without regard to its principles concerning conflicts of law. Any suit brought\nhereon must be brought in the state or federal courts sitting in the County of Denver, Colorado. ABC and AeroGrow hereby waive any claim or defense that such\nforum is not convenient or proper.\nACKNOWLEDGED AND AGREED\nAS OF _______________:\nACKNOWLEDGED AND AGREED\nAS OF _______________ , 2 0__ __:\nAEROGROW INTERNATIONAL, INC .\nF. Wiedemann, VP\n-5-
bf515f4c0d420674991aba8bdadc84f4.pdf	jurisdiction party	EXHIBIT 5.16\nFORM OF NONSOLICITATION AGREEMENT\n(See attached)\nEXHIBIT 5.16\nNON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nThis Non-Solicitation and Non-Disclosure Agreement (the “Agreement”), is made this\nday of\n, 2018, by and\namong GEORGE CVACK (the “Executive”), NORTHWEST INDIANA BANCORP (the “Holding Company”), and PEOPLES BANK SB (the\n“Bank”). The Holding Company, the Bank, and their affiliated entities are collectively referred to herein as “NWIN.”\nRECITALS\nWHEREAS, Executive previously served as the [●] of First Personal Bank or one or more of its affiliates (“FPB”), including First\nPersonal Financial Corp. (“First Personal”). First Personal and FPB are collectively referred to herein as the “First Personal\nEntities;” and\nWHEREAS, First Personal and the Holding Company have entered into an Agreement and Plan of Merger (the “Merger\nAgreement”) whereby First Personal will merge with and into the Holding Company (the “Merger”). The combined entities,\noperations, and assets of NWIN and the First Personal Entities after the Merger are referred to herein as the “Company;” and\nWHEREAS, the Executive will be an employee of the Bank for a period of time after the Merger, and may receive certain other\npayments or benefits as a result of the Merger; and\nWHEREAS, as a condition to its agreement to consummate the Merger under the terms of the Merger Agreement and the continued\nemployment of the Executive, NWIN has requested that the Executive agree to certain restrictions, covenants, and agreements, as set\nforth in this Agreement in order to protect the Company’s business interests and goodwill, as well as its confidential and proprietary\ninformation; and\nWHEREAS, the Executive, in consideration of the benefits of the Merger to the Executive, including but not limited to the continued\nemployment of the Executive, has agreed to execute and deliver this Agreement.\nNOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants, agreements, and obligations contained\nherein, and subject to and effective only upon the consummation of the Merger, and for other good and valuable consideration, the\nreceipt, legal adequacy and sufficiency of which are hereby acknowledged, the parties agree as follows:\nSection 1. Contingency. This Agreement shall be contingent on the consummation of the Merger. If the Merger is not\nconsummated for any reason, this Agreement will be null and void as of the date of the public announcement of the cancellation of\nthe intent to consummate the Merger.\nSection 2. Definitions.\nEXHIBIT 5.16\n(a) Confidential Information. For purposes of this Agreement, the term “Confidential Information” means any and all:\n(i) materials, records, data, documents, lists, writings, and information (whether in writing, printed, verbal, electronic,\ncomputerized, on disk or otherwise) relating or referring in any manner to the business, operations, affairs, financial condition, results\nof operation, cash flow, assets, liabilities, sales, revenues, income, estimates, projections, policies, strategies, techniques, methods,\nproducts, developments, suppliers, relationships, and/or customers of the First Personal Entities, NWIN, the Company, or any\naffiliate of any of them that are not generally known by the public at large and/or which provide the Company with a competitive\nadvantage;\n(ii) “trade secrets” of the First Personal Entities, NWIN, the Company, or any affiliate of any of them, as defined under Indiana\nlaw; and\n(iii) any and all copies, summaries, analyses, and extracts which relate or refer to or reflect any of the items set forth in (i) or (ii)\nabove. The Executive agrees that all Confidential Information is confidential and is and at all times will remain the property of\nNWIN.\nSection 3. Access to and Return of Confidential Information.\n(a) The Executive understands, acknowledges, and agrees that during the course of his employment with the Company he has\ngained or will gain information regarding, knowledge of, and familiarity with the Confidential Information of the Company and that\nif the Confidential Information was disclosed by the Executive, NWIN would suffer irreparable damage and harm. The Executive\nunderstands, acknowledges, and agrees that the Confidential Information derives substantial economic value from, among other\nreasons, not being known or readily ascertainable by proper means by others who could obtain economic value therefrom upon\ndisclosure. The Executive acknowledges and agrees that NWIN uses reasonable means to maintain the secrecy and confidentiality of\nthe Confidential Information.\n(b) The Executive covenants and agrees:\n(i) to keep all Confidential Information subject to NWIN’s custody and control and to promptly return to NWIN all Confidential\nInformation that is still in the Executive’s possession or control at the termination of the Executive’s employment with NWIN; and\n(ii) promptly upon termination of the Executive’s employment with NWIN, to return to NWIN, at NWIN’s principal office, all\nvehicles, equipment, computers, credit cards, and other property of the Company and to cease using any of the foregoing.\nSection 4. Restrictive Covenants.\n(a) Non-Solicitation. The Executive covenants that, during the Executive’s employment with NWIN and for a period of 18 months\nfollowing the date of termination of his employment with NWIN, the Executive shall not: (i) directly recruit any person who is an\nemployee of Peoples Bank; (ii) solicit, encourage, or induce any such employee to leave Peoples Bank’s employ; or (iii) solicit,\nencourage, or induce any customer of Peoples Bank to cease doing or reduce such customer’s level of business with Peoples Bank.\nEXHIBIT 5.16\n(b) Non-Disclosure. At all times during and after the termination of his employment, the Executive shall not (i) directly or\nindirectly disclose, provide, or discuss any Confidential Information with or to any person other than those directors, officers,\nemployees, representatives, and agents of NWIN who need to know such Confidential Information for a proper corporate purpose,\nand (ii) directly or indirectly use any Confidential Information (A) to compete against NWIN, or (B) for the Executive’s own benefit\nor for the benefit of any person or entity other than NWIN.\nSection 5. Periods of Noncompliance and Reasonableness of Periods. The restrictions and covenants contained in Section 4 shall\nbe deemed not to run during all periods of noncompliance, the intention of the parties hereto being to have such restrictions and\ncovenants apply during the term of this Agreement and for the full periods specified in Section 4. The parties hereto understand,\nacknowledge, and agree that the restrictions and covenants contained in Section 4 are reasonable in view of the nature of the business\nin which the Company is engaged, the Executive’s position with the Company and the Executive’s advantageous knowledge of and\nfamiliarity with the business, operations, affairs, employees, and customers of the Company.\nThe restrictions and covenants contained in Section 4 are essential terms and conditions to NWIN entering into this Agreement, and\nshall be construed as independent of any other provision in this Agreement. The existence of any claim or cause of action the\nExecutive has against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the\nenforcement by the Bank or the Holding Company of these covenants.\nNWIN’s obligation to pay any amounts otherwise payable to the Executive pursuant to this Agreement or any other agreement or\narrangement shall immediately terminate in the event that the Executive breaches any of the provisions of Section 4. Notwithstanding\nthe foregoing:\n(a) the covenants of the Executive set forth in Section 4 shall continue in full force and effect and be binding upon the Executive;\n(b) the Bank and the Holding Company shall each be entitled to the remedies specified in Section 6; and\n(c) the Bank and the Holding Company shall each be entitled to its damages, costs, and expenses (including, without limitation,\nreasonable attorneys’ fees and expenses) resulting from or relating to the Executive’s breach of any of the provisions of Section 4.\nSection 6. Remedies. The Executive agrees that NWIN shall suffer irreparable damage and injury and shall not have an adequate\nremedy at law in the event of any actual, threatened, or attempted breach by the Executive of any provision of Section 4.\nAccordingly, in the event of a breach or a threatened or attempted breach by the Executive of any provision of Section 4, in addition\nto all other remedies to which NWIN is entitled at law, in equity, or otherwise, it may be entitled to a temporary restraining order and\na permanent injunction or a\nEXHIBIT 5.16\ndecree of specific performance of any provision of Section 4. The foregoing remedies shall not be deemed to be the exclusive rights\nor remedies of NWIN for any breach of or noncompliance with this Agreement by the Executive but shall be in addition to all other\nrights and remedies available to it at law, in equity, or otherwise.\nSection 7. Severability. In case any one or more of the provisions (or any portion thereof) contained herein will, for any reason, be\nheld to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other\nprovision of this Agreement, but this Agreement shall be construed as if such invalid, illegal, or unenforceable provision or\nprovisions (or portion thereof) had never been contained herein. If any provision of this Agreement shall be determined by a court of\ncompetent jurisdiction to be unenforceable because of the provision’s scope, duration, or other factor, then such provision shall be\nconsidered divisible and the court making such determination shall have the power to reduce or limit (but not increase or make\ngreater) such scope, duration, or other factor or to reform (but not increase or make greater) such provision to make it enforceable to\nthe maximum extent permitted by law, and such provision shall then be enforceable against the appropriate party hereto in its\nreformed, reduced, or limited form; provided that, a provision shall be enforceable in its reformed, reduced, or limited form only in\nthe particular jurisdiction in which a court of competent jurisdiction makes such determination.\nSection 8. Effect of Headings. The descriptive headings of the Sections and, where applicable, subsections, of this Agreement are\ninserted for convenience and identification only and do not constitute a part of this Agreement for purposes of interpretation.\nSection 9. Controlling Law. Except to the extent superseded by the laws of the United States, the laws of the State of Indiana,\nwithout reference to the choice of law principles thereof, shall be controlling in all matters relating to this Agreement.\nSection 10. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an\noriginal, but all of which collectively shall constitute one and the same instrument.\n[Signature page follows]\nEXHIBIT 5.16\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written.\nPEOPLES BANK SB\nNORTHWEST INDIANA BANCORP\nBy:\nBy:\nBenjamin J. Bochnowski\nBenjamin J. Bochnowski\nChief Executive Officer\nChief Executive Officer\nEXECUTIVE\nGeorge Cvack\nEXHIBIT 5.16	EXHIBIT 5.16\nFORM OF NONSOLICITATION AGREEMENT\n(See attached)\nEXHIBIT 5.16\n \nNON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nThis Non-Solicitation and Non-Disclosure Agreement (the ”Agreement”), is made this day of , 2018, by and\namong GEORGE CVACK (the ”Executive"), NORTHWEST INDIANA BANCORP (the ”Holding Company”), and PEOPLES BANK SB (the\n”Bank”). The Holding Company, the Bank, and their affiliated entities are collectively referred to herein as ”NWIN.”\nRECITALS\nWHEREA S, Executive previously served as the [0] of First Personal Bank or one or more of its affiliates (”F PB"), including First\nPersonal Financial Corp. (”F irst Personal”). First Personal and FPB are collectively referred to herein as the ”F irst Personal\nE nlilies;" and\nWHEREA S, First Personal and the Holding Company have entered into an Agreement and Plan of Merger (the ”Merger\nAgreement”) whereby First Personal will merge with and into the Holding Company (the ”Merger"). The combined entities,\noperations, and assets of NWIN and the First Personal Entities after the Merger are referred to herein as the ”Company;" and\nWHEREA S, the Executive will be an employee of the Bank for a period of time after the Merger, and may receive certain other\npayments or benefits as a result of the Merger; and\nWHEREA S, as a condition to its agreement to consummate the Merger under the terms of the Merger A greement and the continued\nemployment of the Executive, NWIN has requested that the Executive agree to certain restrictions, covenants, and agreements, as set\nforth in this Agreement in order to protect the Company' s business interests and goodwill, as well as its confidential and proprietary\ninformation; and\nWHEREA S, the Executive, in consideration of the benefits of the Merger to the Executive, including but not limited to the continued\nemployment of the Executive, has agreed to execute and deliver this Agreement.\nNOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants, agreements, and obligations contained\nherein, and subject to and effective only upon the consummation of the Merger, and for other good and valuable consideration, the\nreceipt, legal adequacy and sufficiency of which are hereby acknowledged, the parties agree as follows:\nSection 1. Contingency. This Agreement shall be contingent on the consummation of the Merger. If the Merger is not\nconsummated for any reason, this A greement will be null and void as of the date of the public announcement of the cancellation of\nthe intent to consummate the Merger.\nSection 2. Definitions.\nEXHIBIT 5.16\n \n(a) C onfidential Information. For purposes of this A greement, the term ”C onfidential Information” means any and all:\n(i) materials, records, data, documents, lists, writings, and information (whether in writing, printed, verbal, electronic,\ncomputerized, on disk or otherwise) relating or referring in any manner to the business, operations, affairs, financial condition, results\nof operation, cash flow, assets, liabilities, sales, revenues, income, estimates, projections, policies, strategies, techniques, methods,\nproducts, developments, suppliers, relationships, and/or customers of the First Personal Entities, NWIN, the Company, or any\naffiliate of any of them that are not generally known by the public at large and/or which provide the Company with a competitive\nadvantage;\n(ii) ”trade secrets” of the First Personal Entities, NWIN, the Company, or any affiliate of any of them, as defined under Indiana\nlaw; and\n(iii) any and all copies, summaries, analyses, and extracts which relate or refer to or reflect any of the items set forth in (i) or (ii)\nabove. The Executive agrees that all Confidential Information is confidential and is and at all times will remain the property of\nNWIN.\nSection 3. Access to and Return of Confidential Information.\n(a) The Executive understands, acknowledges, and agrees that during the course of his employment with the Company he has\ngained or will gain information regarding, knowledge of, and familiarity with the Confidential Information of the Company and that\nif the Confidential Information was disclosed by the Executive, NWIN would suffer irreparable damage and harm. The Executive\nunderstands, acknowledges, and agrees that the Confidential Information derives substantial economic value from, among other\nreasons, not being known or readily ascertainable by proper means by others who could obtain economic value therefrom upon\ndisclosure. The Executive acknowledges and agrees that NWIN uses reasonable means to maintain the secrecy and confidentiality of\nthe Confidential Information.\n(b) The Executive covenants and agrees:\n(i) to keep all Confidential Information subject to NWIN’s custody and control and to promptly return to NWIN all Confidential\nInformation that is still in the Executive’s possession or control at the termination of the Executive’s employment with NWIN; and\n(ii) promptly upon termination of the Executive’s employment with NWIN, to return to NWIN, at NWIN’ s principal office, all\nvehicles, equipment, computers, credit cards, and other property of the Company and to cease using any of the foregoing.\nSection 4. Restrictive Covenants.\n(a) Non-Solicitation. The Executive covenants that, during the Executive’s employment with NWIN and for a period of 18 months\nfollowing the date of termination of his employment with NWIN, the Executive shall not: (i) directly recruit any person who is an\nemployee of Peoples Bank; (ii) solicit, encourage, or induce any such employee to leave Peoples Bank’s employ; or (iii) solicit,\nencourage, or induce any customer of Peoples Bank to cease doing or reduce such customer’ s level of business with Peoples Bank.\nEXHIBIT 5.16\n \n(b) Non-Disclosure. At all times during and after the termination of his employment, the Executive shall not (i) directly or\nindirectly disclose, provide, or discuss any Confidential Information with or to any person other than those directors, officers,\nemployees, representatives, and agents of NWIN who need to know such Confidential Information for a proper corporate purpose,\nand (ii) directly or indirectly use any Confidential Information (A) to compete against NWIN, or (B) for the Executive’s own benefit\nor for the benefit of any person or entity other than NWIN.\nSection 5. Periods of Noncompliance and Reasonableness of Periods. The restrictions and covenants contained in Section 4 shall\nbe deemed not to run during all periods of noncompliance, the intention of the parties hereto being to have such restrictions and\ncovenants apply during the term of this Agreement and for the full periods specified in Section 4. The parties hereto understand,\nacknowledge, and agree that the restrictions and covenants contained in Section 4 are reasonable in view of the nature of the business\nin which the Company is engaged, the Executive’s position with the Company and the Executive’s advantageous knowledge of and\nfamiliarity with the business, operations, affairs, employees, and customers of the Company.\nThe restrictions and covenants contained in Section 4 are essential terms and conditions to NWIN entering into this Agreement, and\nshall be construed as independent of any other provision in this Agreement. The existence of any claim or cause of action the\nExecutive has against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the\nenforcement by the Bank or the Holding Company of these covenants.\nNWIN’ s obligation to pay any amounts otherwise payable to the Executive pursuant to this Agreement or any other agreement or\narrangement shall immediately terminate in the event that the Executive breaches any of the provisions of Section 4. Notwithstanding\nthe foregoing:\n(a) the covenants of the Executive set forth in Section 4 shall continue in full force and effect and be binding upon the Executive;\n(b) the Bank and the Holding Company shall each be entitled to the remedies specified in Section 6; and\n(c) the Bank and the Holding Company shall each be entitled to its damages, costs, and expenses (including, without limitation,\nreasonable attorneys’ fees and expenses) resulting from or relating to the Executive’s breach of any of the provisions of Section 4.\nSection 6. Remedies. The Executive agrees that NWIN shall suffer irreparable damage and injury and shall not have an adequate\nremedy at law in the event of any actual, threatened, or attempted breach by the Executive of any provision of Section 4.\nAccordingly, in the event of a breach or a threatened or attempted breach by the Executive of any provision of Section 4, in addition\nto all other remedies to which NWIN is entitled at law, in equity, or otherwise, it may be entitled to a temporary restraining order and\na permanent injunction or a\nEXHIBIT 5.16\n \ndecree of specific performance of any provision of Section 4. The foregoing remedies shall not be deemed to be the exclusive rights\nor remedies of NWIN for any breach of or noncompliance with this Agreement by the Executive but shall be in addition to all other\nrights and remedies available to it at law, in equity, or otherwise.\nSection 7. Severahility. In case any one or more of the provisions (or any portion thereof) contained herein will, for any reason, be\nheld to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other\nprovision of this Agreement, but this Agreement shall be construed as if such invalid, illegal, or unenforceable provision or\nprovisions (or portion thereof) had never been contained herein. If any provision of this Agreement shall be determined by a court of\ncompetent jurisdiction to be unenforceable because of the provision' s scope, duration, or other factor, then such provision shall be\nconsidered divisible and the court making such determination shall have the power to reduce or limit (but not increase or make\ngreater) such scope, duration, or other factor or to reform (but not increase or make greater) such provision to make it enforceable to\nthe maximum extent permitted by law, and such provision shall then be enforceable against the appropriate party hereto in its\nreformed, reduced, or limited form; provided that, a provision shall be enforceable in its reformed, reduced, or limited form only in\nthe particular jurisdiction in which a court of competent jurisdiction makes such determination.\nSection 8. Effect of Headings. The descriptive headings of the Sections and, where applicable, subsections, of this Agreement are\ninserted for convenience and identification only and do not constitute a part of this Agreement for purposes of interpretation.\nSection 9. Controlling Law. Except to the extent superseded by the laws of the United States, the laws of the State of Indiana,\nwithout reference to the choice of law principles thereof, shall be controlling in all matters relating to this Agreement.\nSection 10. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an\noriginal, but all of which collectively shall constitute one and the same instrument.\n[Signature page follows]\nEXHIBIT 5.16\n \nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written. PEOPLES BANK SB\nBy:\nBenjamin]. B ochnowski Chief Executive Officer\nEXECUTIVE\nG eorge CVBCK\nEXHIBIT 5.16\nNORTHWEST INDIANA BANCORP\nBy:\nB enj aInin J. B ochnowski\nChief Executive Officer	EXHIBIT 5.16\nFORM OF NONSOLICITATION AGREEMENT\n(See attached)\nExHIBIT 5.16\nNON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nThis Non-Solicitation and Non-Disclosure A greement (the "Agreement"), is made this day of\n2018, by and\namong GEORGE CVACK (the "Executive"), NORTHWEST INDIANA BANCoRP (the "Holding Company"), and PEOPLES BANK SB (the\n"Bank"). The Holding Company, the Bank, and their affiliated entities are collectively referred to herein as "NWIN."\nRECITALS\nWHEREAS, Executive previously served as the of First Personal Bank or one or more of its affiliates ("FPB"), including First\nPersonal Financial Corp. ("F irst Personal"). First Personal and FPB are collectively referred to herein as the "First Personal\nEntities;" and\nWHEREAS, First Personal and the Holding Company have entered into an Agreement and Plan of Merger (the "Merger\nAgreement") whereby First Personal will merge with and into the Holding Company (the "Merger"). The combined entities,\noperations, and assets of NWIN and the First Personal Entities after the Merger are referred to herein as the "Company;" and\nWHEREAS, the Executive will be an employee of the Bank for a period of time after the Merger, and may receive certain other\npayments or benefits as a result of the Merger; and\nWHEREAS, as a condition to its agreement to consummate the Merger under the terms of the Merger A greement and the continued\nemployment of the Executive, NWIN has requested that the Executive agree to certain restrictions, covenants, and agreements, as set\nforth in this greement in order to protect the Company's business interests and goodwill, as well as its confidential and proprietary\ninformation; and\nWHEREAS, the Executive, in consideration of the benefits of the Merger to the Executive, including but not limited to the continued\nemployment of the Executive, has agreed to execute and deliver this A greement.\nNOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants, agreements, and obligations contained\nherein, and subject to and effective only upon the consummation of the Merger, and for other good and valuable consideration, the\nreceipt legal adequacy and sufficiency of which are hereby acknowledged, the parties agree as follows:\nSection 1. Contingency. This A greement shall be contingent on the consummation of the Merger. If the Merger is not\nconsummated for any reason, this A greement will be null and void as of the date of the public announcement of the cancellation of\nthe intent to consummate the Merger.\nSection 2. Definitions.\nExHIBIT 5.16\n(a) Confidential Information. For purposes of this A greement, the term Confidential Information" means any and all:\n(i) materials, records, data, documents, lists, writings, and information (whether in writing, printed, verbal, electronic,\ncomputerized, on disk or otherwise) relating or referring in any manner to the business, operations, affairs, financial condition, results\nof operation, cash flow, assets, liabilities, sales, revenues, income, estimates, projections, policies, strategies, techniques, methods,\nproducts, developments, suppliers, relationships, and/or customers of the First Personal Entities, NWIN, the Company, or any\naffiliate of any of them that are not generally known by the public at large and/or which provide the Company with a competitive\nadvantage;\n(ii) "trade secrets" of the First Personal Entities, NWIN, the Company, or any affiliate of any of them, as defined under Indiana\nlaw; and\n(iii) any and all copies, summaries, analyses, and extracts which relate or refer to or reflect any of the items set forth in (i) or (ii)\nabove. The Executive agrees that all Confidential Information is confidential and is and at all times will remain the property of\nNWIN.\nSection 3. Access to and Return of Confidential Information.\n(a) The Executive understands, acknowledges, and agrees that during the course of his employment with the Company he has\ngained or will gain information regarding, knowledge of, and familiarity with the Confidential Information of the Company and that\nif the Confidential Information was disclosed by the Executive, NWIN would suffer irreparable damage and harm The Executive\nunderstands, acknowledges, and agrees that the Confidential Information derives substantial economic value from, among other\nreasons, not being known or readily ascertainable by proper means by others who could obtain economic value therefrom upon\ndisclosure. The Executive acknowledges and agrees that NWIN uses reasonable means to maintain the secrecy and confidentiality of\nthe Confidential Information.\n(b) The Executive covenants and agrees:\n(i) to keep all Confidential Information subject to NWIN's custody and control and to promptly return to NWIN all Confidential\nInformation that is still in the Executive's possession or control at the termination of the Executive's employment with NWIN; and\n(ii) promptly upon termination of the Executive's employment with NWIN, to return to NWIN, at NWIN's principal office, all\nvehicles, equipment computers, credit cards, and other property of the Company and to cease using any of the foregoing.\nSection 4. Restrictive Covenants.\n(a) Non-Solicitation. The Executive covenants that, during the Executive's employment with NWIN and for a period of 18 months\nfollowing the date of termination of his employment with NWIN, the Executive shall not: (i) directly recruit any person who is an\nemployee of Peoples Bank; (ii) solicit, encourage, or induce any such employee to leave Peoples Bank's employ; or (iii) solicit,\nencourage, or induce any customer of Peoples Bank to cease doing or reduce such customer's level of business with Peoples Bank.\nExHIBIT 5.16\n(b) Non-Disclosure. A t all times during and after the termination of his employment, the Executive shall not (i) directly or\nindirectly disclose, provide, or discuss any Confidential Information with or to any person other than those directors, officers,\nemployees, representatives, and agents of NWIN who need to know such Confidential Information for a proper corporate purpose,\nand (ii) directly or indirectly use any Confidential Information (A) to compete against NWIN, or (B) for the Executive's own benefit\nor for the benefit of any person or entity other than NWIN.\nSection 5. Periods of Noncompliance and Reasonableness of Periods. The restrictions and covenants contained in Section 4 shall\nbe deemed not to run during all periods of noncompliance, the intention of the parties hereto being to have such restrictions and\ncovenants apply during the term of this greement and for the full periods specified in Section 4. The parties hereto understand,\nacknowledge, and agree that the restrictions and covenants contained in Section 4 are reasonable in view of the nature of the business\nin which the Company is engaged, the Executive's position with the Company and the Executive's advantageous knowledge of and\nfamiliarity with the business, operations, affairs, employees, and customers of the Company.\nThe restrictions and covenants contained in Section 4 are essential terms and conditions to NWIN entering into this greement, and\nshall be construed as independent of any other provision in this Agreement The existence of any claim or cause of action the\nExecutive has against the Company, whether predicated on this A greement or otherwise, shall not constitute a defense to the\nenforcement by the Bank or the Holding Company of these covenants.\nNWIN's obligation to pay any amounts otherwise payable to the Executive pursuant to this A greement or any other agreement or\narrangement shall immediately terminate in the event that the Executive breaches any of the provisions of Section 4. Notwithstanding\nthe foregoing:\n(a) the covenants of the Executive set forth in Section 4 shall continue in full force and effect and be binding upon the Executive;\n(b)\nthe Bank and the Holding Company shall each be entitled to the remedies specified in Section 6; and\n(c) the Bank and the Holding Company shall each be entitled to its damages, costs, and expenses (including, without limitation,\nreasonable attorneys' fees and expenses) resulting from or relating to the Executive's breach of any of the provisions of Section 4.\nSection 6. Remedies. The Executive agrees that NWIN shall suffer irreparable damage and injury and shall not have an adequate\nremedy at law in the event of any actual, threatened, or attempted breach by the Executive of any provision of Section 4.\nA ccordingly, in the event of a breach or a threatened or attempted breach by the Executive of any provision of Section 4, in addition\nto all other remedies to which NWIN is entitled at law, in equity, or otherwise, it may be entitled to a temporary restraining order and\na permanent injunction or a\nExHIBIT 5.16\ndecree of specific performance of any provision of Section 4. The foregoing remedies shall not be deemed to be the exclusive rights\nor remedies of NWIN for any breach of or noncompliance with this A greement by the Executive but shall be in addition to all other\nrights and remedies available to it at law, in equity, or otherwise.\nSection 7. Severability. In case any one or more of the provisions (or any portion thereof) contained herein will, for any reason, be\nheld to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other\nprovision of this A greement, but this A greement shall be construed as if such invalid, illegal, or unenforceable provision or\nprovisions (or portion thereof) had never been contained herein. If any provision of this A greement shall be determined by a court of\ncompetent jurisdiction to be unenforceable because of the provision's scope, duration, or other factor, then such provision shall be\nconsidered divisible and the court making such determination shall have the power to reduce or limit (but not increase or make\ngreater) such scope, duration, or other factor or to reform (but not increase or make greater) such provision to make it enforceable to\nthe maximum extent permitted by law, and such provision shall then be enforceable against the appropriate party hereto in its\nreformed, reduced, or limited form; provided that, a provision shall be enforceable in its reformed, reduced, or limited form only in\nthe particular jurisdiction in which a court of competent jurisdiction makes such determination.\nSection 8. Effect of Headings. The descriptive headings of the Sections and, where applicable, subsections, of this greement are\ninserted for convenience and identification only and do not constitute a part of this A greement for purposes of interpretation.\nSection 9. Controlling Law. Except to the extent superseded by the laws of the United States, the laws of the State of Indiana,\nwithout reference to the choice of law principles thereof, shall be controlling in all matters relating to this A greement\nSection 10. Counterparts. This A greement may be executed in two or more counterparts, each of which shall be deemed an\noriginal, but all of which collectively shall constitute one and the same instrument.\n[Signature page follows]\nExHIBIT 5.16\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written.\nPEOPLES BANK SB\nNoRTHWEsT INDIANA BANCoRp\nBy:\nBy:\nBenjamin J. Bochnowski\nBenjamin J. Bochnowski\nChief Executive Officer\nChief Executive Officer\nEXECUTIVE\nGeorge Cvack\nExHIBIT 5.16	EXHIBIT 5.16\nFORM OF NONSOLICITATION AGREEMENT\n(See attached)\nEXHIBIT 5.16\nNON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nThis Non-Solicitation and Non-Disclosure Agreement (the “Agreement”), is made this\nday of\n, 2018, by and\namong GEORGE CVACK (the “Executive”), NORTHWEST INDIANA BANCORP (the “Holding Company”), and PEOPLES BANK SB (the\n“Bank”). The Holding Company, the Bank, and their affiliated entities are collectively referred to herein as “NWIN.”\nRECITALS\nWHEREAS, Executive previously served as the [●] of First Personal Bank or one or more of its affiliates (“FPB”), including First\nPersonal Financial Corp. (“First Personal”). First Personal and FPB are collectively referred to herein as the “First Personal\nEntities;” and\nWHEREAS, First Personal and the Holding Company have entered into an Agreement and Plan of Merger (the “Merger\nAgreement”) whereby First Personal will merge with and into the Holding Company (the “Merger”). The combined entities,\noperations, and assets of NWIN and the First Personal Entities after the Merger are referred to herein as the “Company;” and\nWHEREAS, the Executive will be an employee of the Bank for a period of time after the Merger, and may receive certain other\npayments or benefits as a result of the Merger; and\nWHEREAS, as a condition to its agreement to consummate the Merger under the terms of the Merger Agreement and the continued\nemployment of the Executive, NWIN has requested that the Executive agree to certain restrictions, covenants, and agreements, as set\nforth in this Agreement in order to protect the Company’s business interests and goodwill, as well as its confidential and proprietary\ninformation; and\nWHEREAS, the Executive, in consideration of the benefits of the Merger to the Executive, including but not limited to the continued\nemployment of the Executive, has agreed to execute and deliver this Agreement.\nNOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants, agreements, and obligations contained\nherein, and subject to and effective only upon the consummation of the Merger, and for other good and valuable consideration, the\nreceipt, legal adequacy and sufficiency of which are hereby acknowledged, the parties agree as follows:\nSection 1. Contingency. This Agreement shall be contingent on the consummation of the Merger. If the Merger is not\nconsummated for any reason, this Agreement will be null and void as of the date of the public announcement of the cancellation of\nthe intent to consummate the Merger.\nSection 2. Definitions.\nEXHIBIT 5.16\n(a) Confidential Information. For purposes of this Agreement, the term “Confidential Information” means any and all:\n(i) materials, records, data, documents, lists, writings, and information (whether in writing, printed, verbal, electronic,\ncomputerized, on disk or otherwise) relating or referring in any manner to the business, operations, affairs, financial condition, results\nof operation, cash flow, assets, liabilities, sales, revenues, income, estimates, projections, policies, strategies, techniques, methods,\nproducts, developments, suppliers, relationships, and/or customers of the First Personal Entities, NWIN, the Company, or any\naffiliate of any of them that are not generally known by the public at large and/or which provide the Company with a competitive\nadvantage;\n(ii) “trade secrets” of the First Personal Entities, NWIN, the Company, or any affiliate of any of them, as defined under Indiana\nlaw; and\n(iii) any and all copies, summaries, analyses, and extracts which relate or refer to or reflect any of the items set forth in (i) or (ii)\nabove. The Executive agrees that all Confidential Information is confidential and is and at all times will remain the property of\nNWIN.\nSection 3. Access to and Return of Confidential Information.\n(a) The Executive understands, acknowledges, and agrees that during the course of his employment with the Company he has\ngained or will gain information regarding, knowledge of, and familiarity with the Confidential Information of the Company and that\nif the Confidential Information was disclosed by the Executive, NWIN would suffer irreparable damage and harm. The Executive\nunderstands, acknowledges, and agrees that the Confidential Information derives substantial economic value from, among other\nreasons, not being known or readily ascertainable by proper means by others who could obtain economic value therefrom upon\ndisclosure. The Executive acknowledges and agrees that NWIN uses reasonable means to maintain the secrecy and confidentiality of\nthe Confidential Information.\n(b) The Executive covenants and agrees:\n(i) to keep all Confidential Information subject to NWIN’s custody and control and to promptly return to NWIN all Confidential\nInformation that is still in the Executive’s possession or control at the termination of the Executive’s employment with NWIN; and\n(ii) promptly upon termination of the Executive’s employment with NWIN, to return to NWIN, at NWIN’s principal office, all\nvehicles, equipment, computers, credit cards, and other property of the Company and to cease using any of the foregoing.\nSection 4. Restrictive Covenants.\n(a) Non-Solicitation. The Executive covenants that, during the Executive’s employment with NWIN and for a period of 18 months\nfollowing the date of termination of his employment with NWIN, the Executive shall not: (i) directly recruit any person who is an\nemployee of Peoples Bank; (ii) solicit, encourage, or induce any such employee to leave Peoples Bank’s employ; or (iii) solicit,\nencourage, or induce any customer of Peoples Bank to cease doing or reduce such customer’s level of business with Peoples Bank.\nEXHIBIT 5.16\n(b) Non-Disclosure. At all times during and after the termination of his employment, the Executive shall not (i) directly or\nindirectly disclose, provide, or discuss any Confidential Information with or to any person other than those directors, officers,\nemployees, representatives, and agents of NWIN who need to know such Confidential Information for a proper corporate purpose,\nand (ii) directly or indirectly use any Confidential Information (A) to compete against NWIN, or (B) for the Executive’s own benefit\nor for the benefit of any person or entity other than NWIN.\nSection 5. Periods of Noncompliance and Reasonableness of Periods. The restrictions and covenants contained in Section 4 shall\nbe deemed not to run during all periods of noncompliance, the intention of the parties hereto being to have such restrictions and\ncovenants apply during the term of this Agreement and for the full periods specified in Section 4. The parties hereto understand,\nacknowledge, and agree that the restrictions and covenants contained in Section 4 are reasonable in view of the nature of the business\nin which the Company is engaged, the Executive’s position with the Company and the Executive’s advantageous knowledge of and\nfamiliarity with the business, operations, affairs, employees, and customers of the Company.\nThe restrictions and covenants contained in Section 4 are essential terms and conditions to NWIN entering into this Agreement, and\nshall be construed as independent of any other provision in this Agreement. The existence of any claim or cause of action the\nExecutive has against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the\nenforcement by the Bank or the Holding Company of these covenants.\nNWIN’s obligation to pay any amounts otherwise payable to the Executive pursuant to this Agreement or any other agreement or\narrangement shall immediately terminate in the event that the Executive breaches any of the provisions of Section 4. Notwithstanding\nthe foregoing:\n(a) the covenants of the Executive set forth in Section 4 shall continue in full force and effect and be binding upon the Executive;\n(b) the Bank and the Holding Company shall each be entitled to the remedies specified in Section 6; and\n(c) the Bank and the Holding Company shall each be entitled to its damages, costs, and expenses (including, without limitation,\nreasonable attorneys’ fees and expenses) resulting from or relating to the Executive’s breach of any of the provisions of Section 4.\nSection 6. Remedies. The Executive agrees that NWIN shall suffer irreparable damage and injury and shall not have an adequate\nremedy at law in the event of any actual, threatened, or attempted breach by the Executive of any provision of Section 4.\nAccordingly, in the event of a breach or a threatened or attempted breach by the Executive of any provision of Section 4, in addition\nto all other remedies to which NWIN is entitled at law, in equity, or otherwise, it may be entitled to a temporary restraining order and\na permanent injunction or a\nEXHIBIT 5.16\ndecree of specific performance of any provision of Section 4. The foregoing remedies shall not be deemed to be the exclusive rights\nor remedies of NWIN for any breach of or noncompliance with this Agreement by the Executive but shall be in addition to all other\nrights and remedies available to it at law, in equity, or otherwise.\nSection 7. Severability. In case any one or more of the provisions (or any portion thereof) contained herein will, for any reason, be\nheld to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other\nprovision of this Agreement, but this Agreement shall be construed as if such invalid, illegal, or unenforceable provision or\nprovisions (or portion thereof) had never been contained herein. If any provision of this Agreement shall be determined by a court of\ncompetent jurisdiction to be unenforceable because of the provision’s scope, duration, or other factor, then such provision shall be\nconsidered divisible and the court making such determination shall have the power to reduce or limit (but not increase or make\ngreater) such scope, duration, or other factor or to reform (but not increase or make greater) such provision to make it enforceable to\nthe maximum extent permitted by law, and such provision shall then be enforceable against the appropriate party hereto in its\nreformed, reduced, or limited form; provided that, a provision shall be enforceable in its reformed, reduced, or limited form only in\nthe particular jurisdiction in which a court of competent jurisdiction makes such determination.\nSection 8. Effect of Headings. The descriptive headings of the Sections and, where applicable, subsections, of this Agreement are\ninserted for convenience and identification only and do not constitute a part of this Agreement for purposes of interpretation.\nSection 9. Controlling Law. Except to the extent superseded by the laws of the United States, the laws of the State of Indiana,\nwithout reference to the choice of law principles thereof, shall be controlling in all matters relating to this Agreement.\nSection 10. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an\noriginal, but all of which collectively shall constitute one and the same instrument.\n[Signature page follows]\nEXHIBIT 5.16\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written.\nPEOPLES BANK SB\nNORTHWEST INDIANA BANCORP\nBy:\nBy:\nBenjamin J. Bochnowski\nBenjamin J. Bochnowski\nChief Executive Officer\nChief Executive Officer\nEXECUTIVE\nGeorge Cvack\nEXHIBIT 5.16
c0044bfb754cbc782dc5e8e6e1a7f891.pdf	jurisdiction party term	EX-10 .1 2 a06-10517 _1ex10d1.htm EX-10\nExhibit 10.1\nEXECUTIVE EMPLOYMENT, NON -COMPETE\nAND CONFIDENTIALITY AGREEMENT\nTHIS EXECUTIVE EMPLOYMENT, NON -COMPETE AND CONFIDENTIALITY AGREEMENT (“Agreement”) , is entered into as of the date set forth on the signature page by and between Richard A. Montoni (the\n“Executive”) and MAXIMUS, Inc., a Virginia corporation with its principal place of business in Reston, Virginia (the “Corporation”) with reference to the following:\nWHEREAS, the parties believe the Executive possesses the experience and capabilities to provide valuable service on behalf of the Corporation; and\nWHEREAS, the Corporation desires to employ the Executive as its Chief Executive Officer; and\nWHEREAS, the Executive desires to be employed by the Corporation at the salary, benefits and other terms and conditions specified herein.\nNOW, THEREFORE, in consideration of these premises and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:\n1.\nEmployment.\n1.1\nDuties. The Corporation hereby employs the Executive, and the Executive hereby accepts such employment, to\nserve as the Chief Executive Officer. The Executive hereby represents and warrants that he is in good health and capable of\nperforming the services required hereunder. The Executive shall perform such services and duties as are appropriate to such office or\ndelegated to the Executive by the Corporation’s Board of Directors (“Board”). During the term of this Agreement, the Executive shall\nbe a full-time employee of the Corporation and shall devote such time and attention to the discharge of his duties as may be necessary\nand appropriate to accomplish and complete such duties.\nThe Executive shall be nominated by the Board for election as a director and shall serve, without additional compensation, as a member of the Board, subject to his being so elected by the Corporation’s stockholders. The\nExecutive agrees to obtain the consent of the Board, which consent may be withheld in the Board’s sole discretion, before serving on the board of any other entity or organization.\n1.2\nCompensation.\n(a)\nBase Salary. As compensation for performance of his obligations hereunder, the Corporation shall pay the\nExecutive an annual salary of $600,000 (“Base Salary”), such Base Salary to be reviewed annually beginning on or about\nOctober 1, 2006.\n(b)\nYear-End Bonus. The Executive will participate in the Corporation’s annual bonus program, with any\nawards dependent on the performance of the Executive and the Corporation. The target cash bonus for the Executive will be\nseventy percent\n(70%) of annual Base Salary for accomplishing his annual goals; except the Corporation shall pay the Executive a bonus for fiscal year 2006 equal to $600,000. Commencing on the first day of employment, the Executive\nshall be permitted to draw against his 2006 bonus in the amount of $25,000 per month; provided, however, that the Executive shall repay the Corporation any and all such amounts should the Executive terminate his\nemployment with the Corporation before the earliest of (i) September 30, 2006, (ii) a “Change in Control” (as defined in the Income Continuity Plan), or (iii) his death or disability.\n(c)\nSigning Bonus. The Corporation shall pay the Executive a lump sum cash bonus of $300,000 upon his\nexecution of this Agreement; provided that, the Executive shall repay this bonus amount in full if he terminates employment\nwith the Corporation before the earliest of (i) the one-year anniversary of the Effective Date, (ii) a “Change in Control” (as\ndefined in the Income Continuity Plan), or (iii) his death or disability.\n(d)\nEquity Awards. On the Effective Date, the Corporation shall award the Executive 112,500 Restricted\nStock Units, under and subject to the terms of the MAXIMUS, Inc. 1997 Equity Incentive Plan (the “Equity Plan”), vesting\nat one-third on March 31, 2007, March 31, 2008 and March 31, 2009. Such award shall (i) provide for accelerated vesting in\nthe event of a Change in Control and (ii) have such other terms and conditions as are included in the standard MAXIMUS\nRestricted Stock Unit Agreement that will be subsequently executed by the parties. In addition, the Executive shall be\nentitled to future awards under the Equity Plan in the discretion of the Corporation’s Board of Directors, and shall also be\nentitled to participate in stock option and similar plans as currently exist or may be established by the Corporation from time\nto time. The Corporation agrees to proportionately adjust the Executive’s vested and unvested equity awards in the event the\nCorporation declares an extraordinary dividend during the term hereof. For these purposes, an “extraordinary dividend”\nwould be any distribution per share having a value in excess of ten percent (10%) of the average trading price of the\nCorporation’s common stock during the three-month period preceding such distribution.\n(e)\nIncome Continuity Program. On the Effective Date, the Executive shall become a Participant in the\nMAXIMUS, Inc. Income Continuity Program (the “Income Continuity Plan”).\n(f)\nVacation, Insurance, Expenses, Etc. The Executive shall be entitled to 20 days accrual paid vacation per\nyear, and such benefits, health, disability and life insurance and other benefits and expense reimbursements in a manner\nconsistent with the Corporation’s past practices and as are provided to executives at a similar level.\n(g)\nInsurance. The Corporation shall maintain the Executive as an insured party on all directors’ and officers’\ninsurance maintained by the Corporation for the benefit of its directors and officers on at least the same basis as all other\ncovered individuals and provide the Executive with at least the same corporate indemnification as its officers.\n(h)\nIndemnification. The Corporation shall reimburse the Executive for reasonable attorneys’ fees incurred in\nconnection with the review and negotiation of this\n2\nAgreement as well as the termination of his employment with his immediate predecessor employer. The Corporation shall indemnify the Executive for any losses or costs (including reasonable attorneys’ fees) arising from\na claim by his immediate predecessor employer that the Executive breached his employment agreement with them or otherwise wrongfully terminated his employment with them. The amount of such indemnification shall\nnot exceed $500,000. This provision shall survive the termination of Executive’s employment, except in the case of a Termination for Cause (as defined in the Income Continuity Plan).\n1.3\nTerm; Termination. The term of the employment agreement set forth in this Section 1 shall be for a period\ncommencing at the Effective Date and continuing for four (4) years thereafter (the “Scheduled Term”) provided that this Agreement\nshall terminate:\n(a)\nby mutual written consent of the parties;\n(b)\nupon Executive’s death or inability, by reason of physical or mental impairment, to perform substantially\nall of Executive’s duties as contemplated herein for a continuous period of 120 days or more; or\n(c)\nby the Corporation for Cause (as defined in the Income Continuity Plan).\nUpon any termination of employment under this Section 1.3, neither party shall have any obligation to the other pursuant to this Section 1, but such termination shall have no effect on the obligations of the parties under\nother provisions of this Agreement.\n“Effective Date” shall mean the date Executive commences work for the Corporation, which shall not be later than May 1, 2006.\n1.4\nSeverance. The parties agree that in the event the Corporation terminates the Executive’s employment without\nCause or the Executive terminates the employment for “Good Reason” (as defined in the Income Continuity Plan) prior to the\nexpiration of the Scheduled Term, the Executive shall be entitled to receive the greater of (i) Base Salary and benefits (including the\nbenefits specified in Section 1.2 above and the vesting of stock options and Restricted Stock Units) for the remainder of the\nScheduled Term or (ii) the severance benefits specified in the severance guidelines adopted by the Compensation Committee of the\nCorporation’s Board of Directors on March 21, 2006. If the Executive’s employment termination occurs in connection with a Change\nin Control, the Executive shall be entitled to receive such payments and benefits as provided under the Income Continuity Plan, and\nthis Section 1.4 shall not apply.\n1.5\nContinuation of Employment and Benefits. The Corporation shall treat the Executive as remaining in employment\nwith the Corporation continuously during the period beginning March 18, 2002 through the Effective Date, to the maximum extent\npermitted by law and the terms of the applicable plan documents. If any law or the terms of any plan document (or related agreement)\nprevents the Corporation from treating the Executive as remaining in employment with the Corporation continuously during this\nperiod, the Corporation shall pay or provide to the Executive an amount equal to the difference between (a) and (b), where (a) and\n(b) are determined as follows:\n3\n(a)\nThe payments or benefits the Executive would have received or been entitled to if the Executive had\nremained in employment with the Corporation continuously during the period beginning March 18, 2002 through the\nEffective Date; and\n(b)\nThe payments or benefits the Executive actually received or is entitled to under applicable law and the\nterms of the applicable plan documents;\n2.\nNon-Competition.\n2.1\nProhibited Activities.\n(a)\nThe Executive agrees that, during his employment with the Corporation and for a period of one (1) year\nafter the termination of such employment, the Executive will not engage in any Unethical Behavior which may adversely\naffect the Corporation. For the purpose of this Section 2.1, “Unethical Behavior” is defined as:\n(i)\nany attempt, successful or unsuccessful, by the Executive to divert any existing or pending\ncontracts or subcontracts from the Corporation to any other firm, whether or not affiliated with the Executive;\n(ii)\nany attempt, successful or unsuccessful, by the Executive, to influence clients of the Corporation\nor organizations with which the Corporation has an existing or pending contract or proposal to refrain from doing\nbusiness with the Corporation or to terminate existing business with the Corporation;\n(iii)\nany attempt, successful or unsuccessful, by the Executive to offer his services, or to influence\nany other employee of the Corporation to offer their services, to any firm to compete against the Corporation; or\n(iv)\nany attempt, successful or unsuccessful, by the Executive to employ or offer employment to, or\ncause any other person to employ or offer employment to any individual who was an employee of the Corporation\nat any time during the Executive’s last six months of employment with the Corporation.\n(b)\nThe Executive shall notify any new employer, partner, association or any other firm or corporation in\ncompetition with the Corporation with whom the Executive shall become associated in any capacity whatsoever of the\nprovisions of this Section 2 and the Executive agrees that the Corporation may give such notice to such firm, corporation or\nother person.\n2.2\nBusiness Opportunities; Conflicts of Interest; Other Employment and Activities of the Executive.\n(a)\nThe Executive agrees promptly to advise the Corporation of, and provide the Corporation with an\nopportunity to pursue, all business opportunities that reasonably relate to the present business conducted by the Corporation.\n(b)\nThe Executive, in his capacity as an employee of the Corporation, shall not engage in any business with\nany member of the Executive’s immediate family or with\n4\nany person or business entity in which the Executive or any member of the Executive’s immediate family has any ownership interest or financial interest, unless and until the Executive has first fully disclosed such interest\nto and received written consent from the Board of Directors. As used herein, the term “immediate family” means the Executive’s spouse, natural or adopted children, parents or siblings and the term “financial interest”\nmeans any relationship with such person or business entity that may monetarily benefit the Executive or member of the Executive’s immediate family, including any lending relationship or the guarantying of any\nobligations of such person or business entity by the Executive or member of his immediate family.\n(c)\nThe parties hereto agree that the Executive may, consistent with this Section 2.2, receive and retain\nspeaking fees, referral fees from business opportunities not accepted by the Corporation, and fees from outside business\nactivities and opportunities of the Executive consented to by the Board of Directors.\n3.\nConfidentiality. The Executive agrees that the Corporation’s books, records, files and all other non-public information\nrelating to the Corporation, its business, clients and employees are proprietary in nature and contain trade secrets and shall be held in\nstrict confidence by the Executive, and shall not, either during the term of this Agreement or after the termination hereof, be used by\nExecutive or disclosed, directly or indirectly, to any third party, except to the extent such use or disclosure is in furtherance of the\nCorporation’s business or required by any law, rule, regulation or other legal process. The trade secrets or other proprietary or\nconfidential information referred to in the prior sentence includes, without limitation, all proposals to clients or potential clients,\ncontracts, client or potential client lists, fee policies, financial information, administration or marketing practices or procedures and\nall other information regarding the business of the Corporation and its clients not generally known to the public.\n4.\nMiscellaneous.\n4.1\nNotices. All notices, requests, demands or other communications provided for in this Agreement shall be in\nwriting and shall be delivered by hand, sent prepaid by overnight delivery service or sent by the United States mail, certified, postage\nprepaid, return receipt request, to the following:\nIf to the Corporation:\nMAXIMUS, Inc.\n11419 Sunset Hills Road\nReston, Virginia 20190\nAttention: General Counsel\n5\nIf to the Executive:\nRichard A. Montoni\n9317 Morison Lane\nGreat Falls, Virginia 22066\nAny notice, request, demand or other communication delivered or sent in the foregoing manner shall be deemed given or made (as the case may be) upon the earliest of (i) the date it is actually received, (ii) the business-day after the day\non which it is delivered by hand, (iii) the business day after the day on which it is properly delivered to Federal Express (or a comparable overnight delivery service), or (iv) the third business day after the date on which it is deposited in\nthe United States mail. Either party may change its address by notifying the other party of the new address in any manner permitted by this paragraph.\n4.2\nRemedies. The parties agree and acknowledge that any violation by the Executive of the terms hereof may result in\nirreparable injury and damage to the Corporation or its clients, which may not adequately be compensable in monetary damages, that\nthe Corporation will have no adequate remedy at law therefor, and that the Corporation may obtain such preliminary, temporary or\npermanent mandatory or restraining injunctions, orders or decrees as may be necessary to protect it against, or on account of, any\nbreach of the provisions contained in this Agreement.\n4.3\nNo Obligation of Continued Employment. The Executive understands that this Agreement does not create an\nobligation on the part of the Corporation to continue the Executive’s employment with the Corporation after the expiration or\ntermination of this Agreement.\n4.4\nBenefit; Assignment. This Agreement shall bind and inure to the benefit of the parties and their respective personal\nrepresentatives, heirs, successors and assigns, provided this Agreement may not be assigned by either party without the consent of the\nother, except that the Corporation may assign this Agreement in connection with the merger, consolidation or sale of all or\nsubstantially all of its business or assets.\n4.5\nEntire Agreement. This Agreement supersedes all prior agreements, written or oral, with respect to the subject\nmatter of this Agreement.\n4.6\nSeverability. In the event that any one or more of the provisions contained herein shall be held to be invalid,\nillegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions of this\nAgreement, and all other provisions shall remain in full force and effect. If any of the provisions of this Agreement is held to be\nexcessively broad, it shall be reformed and construed by limiting and reducing it so as to be enforceable to the maximum extent\npermitted by law.\n4.7\nWaivers. No delay or omission by the Corporation in exercising any right under this Agreement will operate as a\nwaiver of that or any other right. A waiver or consent given by the Corporation on any occasion is effective only in that instance and\nwill not be construed as a bar to or waiver of any right on any other occasion.\n6\n4.8\nCaptions. The captions of the various sections and paragraphs of this Agreement have been inserted only for the\npurpose of convenience; such captions are not a part of this Agreement and shall not be deemed in any manner to modify, explain,\nenlarge or restrict any of the provisions of this Agreement.\n4.9\nGoverning Law and Jurisdiction. This Agreement shall in all events and for all purposes be governed by, and\nconstrued in accordance with, the laws of the Commonwealth of Virginia. Any action or proceeding against the parties relating in any\nway to this Agreement must be brought and enforced in the courts of Fairfax County, Virginia or the Northern District of Virginia,\nand the parties irrevocably submit to the jurisdiction of such courts in respect of any such action or proceeding.\n4.10\nAmendments. No changes to this Agreement shall be binding unless in writing and signed by both the parties.\n4.11\nCounterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original,\nand all such counterparts shall constitute one instrument.\nTHE EXECUTIVE HAS READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND THE EXECUTIVE UNDERSTANDS, AND AGREES TO, EACH OF SUCH PROVISIONS. THE EXECUTIVE\nUNDERSTANDS THAT THIS AGREEMENT MAY AFFECT THE EXECUTIVE’S RIGHT TO ACCEPT EMPLOYMENT WITH OTHER COMPANIES SUBSEQUENT TO THE EXECUTIVE’S EMPLOYMENT\nWITH THE CORPORATION.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement effective as of the date first above written.\nEXECUTIVE\nMAXIMUS, Inc.\nBy\nRichard A. Montoni\nDate\nTitle\n7	EX-10.l 2 a06-10517_leX10dl.htm EX-lO\nExhibithJ\nEXECUTIVE EMPLOYMENT, NON-COMPETE\nAND CONFIDENTIALITY AGREEMENT\nTHIS EXECUTIVE EMPLOY MENT, NO N-COMPETE AND CONFIDENTIALITY AGREEMENT ("Agreement"), is entered into as of the date set forth on the signature page by and between Richard A, Montoni (the\n"Executive”) and MAX IMUS, Inc., a Virginia corporation with its principal place of business in Reston, Virginia (the ”Corporation”) with reference to the following:\nWHEREAS, the parties believe the Executive possesses the experience and capabilities to provide valuable service on behalf of the Corporation; and\nWHEREAS, the Corporation desires to employ the Executive as its Chief Executive Officer; and\nWHEREAS, the Executive desires to be employed by the Corporation at the salary, benefits and other terms and conditions specified herein,\nNOW, THEREFORE, in consideration of these premises and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:\n1. Employment.\n1.1 Du_ties. The Corporation hereby employs the Executive, and the Executive hereby accepts such employment, to\nserve as the Chief Executive Officer. The Executive hereby represents and warrants that he is in good health and capable of\nperforming the services required hereunder. The Executive shall perform such services and duties as are appropriate to such office or\ndelegated to the Executive by the Corporation’ 5 Board of Directors (”Board”). During the term of this Agreement, the Executive shall\nbe a full-time employee of the Corporation and shall devote such time and attention to the discharge of his duties as may be necessary\nand appropriate to accomplish and complete such duties.\nThe Executive shall be nominated by the Board for election as a director and shall serve, without additional compensation, as a member of the Board, subject to his being so elected by the Corporation's stockholders, The\nExecutive agrees to obtain the consent of the Board, which consent may be withheld in the Board's sole discretion, before serving on the board of any other entity or organization,\n12 Compensation.\n(a) Base Salary. As compensation for performance of his obligations hereunder, the Corporation shall pay the\nExecutive an annual salary of $600,000 (”Base Salary”), such Base Salary to be reviewed annually beginning on or about\nOctober 1, 2006.\n111) Y ear-End Bonus. The Executive Will participate in the Corporation’ 5 annual bonus program, with any\nawards dependent on the performance of the Executive and the Corporation. The target cash bonus for the Executive Will be\nseventy percent\n \n(70%) of annual Base Salary for accomplishing his annual goals,- except the Corporation shall pay the Executive a bonus for fiscal year 2006 equal to $600,000. Commencing on the first day of employment, the Executive\nshall be permitted to draw against his 2006 bonus in the amount of $25,000 per month; provided, however, that the Executive shall repay the Corporation any and all such amounts should the Executive terminate his\nemployment with the Corporation before the earliest of (i) September 30, 2006, (ii) a "Change in Control" (as defined in the Income Continuity Plan), or (iii) his death or disability.\n(c) Signing Bonus. The Corporation shall pay the Executive a lump sum cash bonus of $300,000 upon his\nexecution of this Agreement; provided that, the Executive shall repay this bonus amount in full if he terminates employment\nwith the Corporation before the earliest of (i) the one-year anniversary of the Effective Date, (ii) a ”Change in Control" (as\ndefined in the Income Continuity Plan), or (iii) his death or disability.\n11) Eguity Awards. On the Effective Date, the Corporation shall award the Executive 112,500 Restricted\nStock Units, under and subject to the terms of the MAXIMUS, Inc. 1997 Equity Incentive Plan (the ”Equity Plan”), vesting\nat onethird on March 31, 2007, March 31, 2008 and March 31, 2009. Such award shall (i) provide for accelerated vesting in\nthe event of a Change in Control and (ii) have such other terms and conditions as are included in the standard MAX IMUS\nRestricted Stock Unit Agreement that will be subsequently executed by the parties. In addition, the Executive shall be\nentitled to future awards under the Equity Plan in the discretion of the Corporation’s Board of Directors, and shall also be\nentitled to participate in stock option and similar plans as currently exist or may be established by the Corporation from time\nto time. The Corporation agrees to proportionately adjust the Executive’s vested and unvested equity awards in the event the\nCorporation declares an extraordinary dividend during the term hereof. For these purposes, an ”extraordinary dividend”\nwould be any distribution per share having a value in excess of ten percent (10%) of the average trading price of the\nCorporation’s common stock during the threemonth period preceding such distribution.\n(e) Income Continuity Program. On the Effective Date, the Executive shall become a Participant in the\nMAXIMUS, Inc. Income Continuity Program (the ”Income Continuity Plan”).\n(f) Vacation, Insurance, Expenses, Etc. The Executive shall be entitled to 20 days accrual paid vacation per\nyear, and such benefits, health, disability and life insurance and other benefits and expense reimbursements in a manner\nconsistent with the Corporation’s past practices and as are provided to executives at a similar level.\n(g) Insurance. The Corporation shall maintain the Executive as an insured party on all directors’ and officers’\ninsurance maintained by the Corporation for the benefit of its directors and officers on at least the same basis as all other\ncovered individuals and provide the Executive with at least the same corporate indemnification as its officers.\n(h) Indemnification. The Corporation shall reimburse the Executive for reasonable attorneys’ fees incurred in\nconnection with the review and negotiation of this\nAgreement as well as the termination of his employment with his immediate predecessor employer. The Corporation shall indemnify the Executive for any losses or costs (including reasonable attorneys' fees) arising from\na claim by his immediate predecessor employer that the Executive breached his employment agreement with them or otherwise wrongfully terminated his employment with them. The amount of such indemnification shall\nnot exceed $500,000. This provision shall survive the termination of Executive’s employment, except in the case of a Termination for Cause (as defined in the Income Continuity Plan).\n1.3 Term; Termination. The term of the employment agreement set forth in this Section 1 shall be for a period\ncommencing at the Effective Date and continuing for four (4) years thereafter (the ”Scheduled Term”) provided that this Agreement\nshall terminate:\n(a) by mutual written consent of the parties;\n(b) upon Executive’s death or inability, by reason of physical or mental impairment, to perform substantially\nall of Executive’s duties as contemplated herein for a continuous period of 120 days or more; or\n(a by the Corporation for Cause (as defined in the Income Continuity Plan).\nUpon any termination of employment under this Section 1.3, neither party shall have any obligation to the other pursuant to this Section 1, but such termination shall have no effect on the obligations of the parties under\nother provisions of this A greement.\n"Effective Date" shall mean the date Executive commences work for the Corporation, which shall not be later than May 1, 2006.\n1.4 Severance. The parties agree that in the event the Corporation terminates the Executive’s employment without\nCause or the Executive terminates the employment for ”Good Reason” (as defined in the Income Continuity Plan) prior to the\nexpiration of the Scheduled Term, the Executive shall be entitled to receive the greater of (1) Base Salary and benefits (including the\nbenefits specified in Section 1.2 above and the vesting of stock options and Restricted Stock Units) for the remainder of the\nScheduled Term or (ii) the severance benefits specified in the severance guidelines adopted by the Compensation Committee of the\nCorporation’s Board of Directors on March 21, 2006. If the Executive’s employment termination occurs in connection with a Change\nin Control, the Executive shall be entitled to receive such payments and benefits as provided under the Income Continuity Plan, and\nthis Section 1.4 shall not apply.\n1.5 Continuation of Employment and Benefits. The Corporation shall treat the Executive as remaining in employment\nwith the Corporation continuously during the period beginning March 18, 2002 through the Effective Date, to the maximum extent\npermitted by law and the terms of the applicable plan documents. If any law or the terms of any plan document (or related agreement)\nprevents the Corporation from treating the Executive as remaining in employment with the Corporation continuously during this\nperiod, the Corporation shall pay or provide to the Executive an amount equal to the difference between (a) and (b), where (a) and\n(b) are determined as follows:\n(a) The payments or benefits the Executive would have received or been entitled to if the Executive had\nremained in employment with the Corporation continuously during the period beginning March 18, 2002 through the\nEffective Date; and\n(h) The payments or benefits the Executive actually received or is entitled to under applicable law and the\nterms of the applicable plan documents;\n2. Non-Competition.\n2.1 Prohibited A ctivities.\n(a) The Executive agrees that, during his employment with the Corporation and for a period of one (1) year\nafter the termination of such employment, the Executive will not engage in any Unethical Behavior which may adversely\naffect the Corporation. For the purpose of this Section 2.1, ”Unethical Behavior" is defined as:\n(1) any attempt, successful or unsuccessful, by the Executive to divert any existing or pending\ncontracts or subcontracts from the Corporation to any other firm, whether or not affiliated with the Executive;\n(in any attempt, successful or unsuccessful, by the Executive, to influence clients of the Corporation\nor organizations with which the Corporation has an existing or pending contract or proposal to refrain from doing\nbusiness with the Corporation or to terminate existing business with the Corporation;\n(iii) any attempt, successful or unsuccessful, by the Executive to offer his services, or to influence\nany other employee of the Corporation to offer their services, to any firm to compete against the Corporation; or\n(m any attempt, successful or unsuccessful, by the Executive to employ or offer employment to, or\ncause any other person to employ or offer employment to any individual who was an employee of the Corporation\nat any time during the Executives last six months of employment with the Corporation.\n(h) The Executive shall notify any new employer, partner, association or any other firm or corporation in\ncompetition with the Corporation with whom the Executive shall become associated in any capacity whatsoever of the\nprovisions of this Section 2 and the Executive agrees that the Corporation may give such notice to such firm, corporation or\nother person.\n2.2 Business Opportunities; Conflicts of Interest; Other Employment and Activities of the Executive.\n(a) The Executive agrees promptly to advise the Corporation of, and provide the Corporation with an\nopportunity to pursue, all business opportunities that reasonably relate to the present business conducted by the Corporation.\n(h) The Executive, in his capacity as an employee of the Corporation, shall not engage in any business With\nany member of the Executive’ s immediate family or with\n \nany person or business entity in which the Executive or any member of the Executive' s immediate family has any ownership interest or financial interest, unless and until the Executive has first fully disclosed such interest\nto and received written consent from the Board of Directors As used herein, the term ”immediate family" means the Executive's spouse, natural or adopted children, parents or siblings and the term "financial interest"\nmeans any relationship with such person or business entity that may monetarily benefit the Executive or member of the Executive’s immediate family, including any lending relationship or the guarantying of any\nobligations of such person or business entity by the Executive or member of his immediate family.\n(a The parties hereto agree that the Executive may, consistent With this Section 2.2, receive and retain\nspeaking fees, referral fees from business opportunities not accepted by the Corporation, and fees from outside business\nactivities and opportunities of the Executive consented to by the Board of Directors.\n3. Confidentiality. The Executive agrees that the Corporation’s books, records, files and all other non-public information\nrelating to the Corporation, its business, clients and employees are proprietary in nature and contain trade secrets and shall be held in\nstrict confidence by the Executive, and shall not, either during the term of this Agreement or after the termination hereof, be used by\nExecutive or disclosed, directly or indirectly, to any third party, except to the extent such use or disclosure is in furtherance of the\nCorporation’ s business or required by any law, rule, regulation or other legal process. The trade secrets or other proprietary or\nconfidential information referred to in the prior sentence includes, Without limitation, all proposals to clients or potential clients,\ncontracts, client or potential client lists, fee policies, financial information, administration or marketing practices or procedures and\nall other information regarding the business of the Corporation and its clients not generally known to the public.\n4. Miscellaneous.\n4.4 Notices. All notices, requests, demands or other communications provided for in this Agreement shall be in\nwriting and shall be delivered by hand, sent prepaid by overnight delivery service or sent by the United States mail, certified, postage\nprepaid, return receipt request, to the following:\nIf to the Corporation:\nMAXIMUS, Inc.\n11419 Sunset Hills Road\nReston, Virginia 20190\nAttention: General Counsel\n \nIf to the Executive:\nRichard A. Montoni\n9317 Morison Lane\nGreat Falls, Virginia 22066\nAny notice, request, demand or other communication delivered or sent in the foregoing manner shall be deemed given or made (as the case may be) upon the earliest of (i) the date it is actually received, (ii) the business-day after the day\non which it is delivered by hand, (iii) the business day after the day on which it is properly delivered to Federal Express (or a comparable overnight delivery service), or (iv) the third business day after the date on which it is deposited in\nthe United Smtes mail. Either party may change its address by notifying the other party of the new address in any manner permitted by this paragraph.\n4.2 Remedies. The parties agree and acknowledge that any violation by the Executive of the terms hereof may result in\nirreparable injury and damage to the Corporation or its clients, Which may not adequately be compensable in monetary damages, that\nthe Corporation Will have no adequate remedy at law therefor, and that the Corporation may obtain such preliminary, temporary or\npermanent mandatory or restraining injunctions, orders or decrees as may be necessary to protect it against, or on account of, any\nbreach of the provisions contained in this Agreement.\n4.3 No Obligation of Continued Employment. The Executive understands that this Agreement does not create an\nobligation on the part of the Corporation to continue the Executive’ s employment with the Corporation after the expiration or\ntermination of this A greement.\n4.4 Benefit; Assignment. This Agreement shall bind and inure to the benefit of the parties and their respective personal\nrepresentatives, heirs, successors and assigns, provided this Agreement may not be assigned by either party without the consent of the\nother, except that the Corporation may assign this Agreement in connection with the merger, consolidation or sale of all or\nsubstantially all of its business or assets.\n4.5 Entire A greement. This A greement supersedes all prior agreements, written or oral, with respect to the subject\nmatter of this A greement.\n4.6 Severabilitgy. In the event that any one or more of the provisions contained herein shall be held to be invalid,\nillegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions of this\nAgreement, and all other provisions shall remain in full force and effect. If any of the provisions of this Agreement is held to be\nexcessively broad, it shall be reformed and construed by limiting and reducing it so as to be enforceable to the maximum extent\npermitted by law.\n4.7 Waivers. No delay or omission by the Corporation in exercising any right under this Agreement will operate as a\nwaiver of that or any other right. A waiver or consent given by the Corporation on any occasion is effective only in that instance and\nwill not be construed as a bar to or waiver of any right on any other occasion.\n \n4.3 Captions. The captions of the various sections and paragraphs of this Agreement have been inserted only for the\npurpose of convenience; such captions are not a part of this Agreement and shall not be deemed in any manner to modify, explain,\nenlarge or restrict any of the provisions of this Agreement.\n4.9 Governing Law and urisdiction. This A greement shall in all events and for all purposes be governed by, and\nconstrued in accordance with, the laws of the Commonwealth of Virginia. Any action or proceeding against the parties relating in any\nway to this Agreement must be brought and enforced in the courts of Fairfax County, Virginia or the Northern District of Virginia,\nand the parties irrevocably submit to the jurisdiction of such courts in respect of any such action or proceeding.\n4.10 Amendments. No changes to this Agreement shall be binding unless in writing and signed by both the parties.\n4.11 Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original,\nand all such counterparts shall constitute one instrument.\nTHE EXECUTIVE HAS READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND THE EXECUTIVE UNDERSTANDS, AND AGREES TO, EACH OF SUCH PROVISIONS. THE EXECUTIVE\nUNDERSTANDS THAT THIS AGREEMENT MAY AFFECT THE EXECUTIVE'S RIGHT TO ACCEPT EMPLOYMENT WITH OTHER COMPANIES SUBSEQUENT TO THE EXECUTIVE’S EMPLOYMENT\nWITH THE CORPORATION.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement effective as of the date first above written.\nEXECUTIVE MAXIMUS, Inc.\nBY\n1C . on Onl\nDate Title	EX-10.1 2a06-10517 1ex10d1.htm EX-10\nExhibit 10.1\nEXECUTIVE EMPLOYMENT, NON-COMPETE\nAND CONFIDENTIALITY AGREEMENT\nTHIS EXECUTIVE EMPLOY MENT, NON-COMPETE AND CONFIDENTIALITY AGREEMENT ("Agreement"), is entered into as of the date set forth on the signature page by and between Richard A. Montoni (the\n"Executive") and MAXIMUS, Inc., a Virginia corporation with its principal place of business in Reston, Virginia (the "Corporation") with reference to the following:\nWHEREAS, the parties believe the Executive possesses the experience and capabilities to provide valuable service on behalf of the Corporation; and\nWHEREAS, the Corporation desires to employ the Executive as its Chief Executive Officer; and\nWHEREAS, the Executive desires to be employed by the Corporation at the salary, benefits and other terms and conditions specified herein.\nNOW THEREFORE in consideration of these premises and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:\n1.\nEmployment\n1.1\nDuties. The Corporation hereby employs the Executive, and the Executive hereby accepts such employment, to\nserve as the Chief Executive Officer. The Executive hereby represents and warrants that he is in good health and capable of\nperforming the services required hereunder. The Executive shall perform such services and duties as are appropriate to such office or\ndelegated to the Executive by the Corporation's Board of Directors ("Board"). During the term of this greement, the Executive shall\nbe a full-time employee of the Corporation and shall devote such time and attention to the discharge of his duties as may be necessary\nand appropriate to accomplish and complete such duties.\nThe Executive shall be nominated by the Board for election as a director and shall serve, without additional compensation, as a member of the Board, subject to his being so elected by the Corporation's stockholders. The\nExecutive agrees to obtain the consent of the Board, which consent may be withheld in the Board's sole discretion, before serving on the board of any other entity or organization\n1.2\nCompensation.\n(a)\nBase Salary. As compensation for performance of his obligations hereunder, the Corporation shall pay the\nExecutive an annual salary of $600,000 ("Base Salary"), such Base Salary to be reviewed annually beginning on or about\nOctober 1, 2006.\n(b)\nYear-End Bonus. The Executive will participate in the Corporation's annual bonus program, with any\nawards dependent on the performance of the Executive and the Corporation. The target cash bonus for the Executive will be\nseventy percent\n(70%) of annual Base Salary for accomplishing his annual goals; except the Corporation shall pay the Executive a bonus for fiscal year 2006 equal to $600,000. Commencing on the first day of employment, the\nExecutive\nshall be permitted to draw against his 2006 bonus in the amount of $25,000 per month; provided however, that the Executive shall repay the Corporation any and all such amounts should the Executive terminate his\nemployment with the Corporation before the earliest of (i) September 30, 2006, (ii) a "Change in Control" (as defined in the Income Continuity Plan), or (iii) his death or disability.\n(c)\nSigning Bonus. The Corporation shall pay the Executive a lump sum cash bonus of $300,000 upon his\nexecution of this A greement; provided that the Executive shall repay this bonus amount in full if he terminates employment\nwith the Corporation before the earliest of (i) the one-year anniversary of the Effective Date, (ii) a "Change in Control" (as\ndefined in the Income Continuity Plan), or (iii) his death or disability.\n(d)\nEquity Awards. On the Effective Date, the Corporation shall award the Executive 112,500 Restricted\nStock Units, under and subject to the terms of the MAXIMUS, Inc. 1997 Equity Incentive Plan (the "Equity Plan"), vesting\nat one-third on March 31, 2007, March 31, 2008 and March 31, 2009. Such award shall (i) provide for accelerated vesting in\nthe event of a Change in Control and (ii) have such other terms and conditions as are included in the standard MAXIMUS\nRestricted Stock Unit A greement that will be subsequently executed by the parties. In addition, the Executive shall be\nentitled to future awards under the Equity Plan in the discretion of the Corporation's Board of Directors, and shall also be\nentitled to participate in stock option and similar plans as currently exist or may be established by the Corporation from time\nto time. The Corporation agrees to proportionately adjust the Executive's vested and unvested equity awards in the event the\nCorporation declares an extraordinary dividend during the term hereof. For these purposes, an "extraordinary dividend"\nwould be any distribution per share having a value in excess of ten percent (10%) of the average trading price of the\nCorporation's common stock during the three-month period preceding such distribution.\n(e)\nIncome Continuity Program. On the Effective Date, the Executive shall become a Participant in the\nMAXIMUS, Inc. Income Continuity Program (the "Income Continuity Plan").\n(f)\nVacation, Insurance, Expenses, Etc. The Executive shall be entitled to 20 days accrual paid vacation\nper\nyear, and such benefits, health, disability and life insurance and other benefits and expense reimbursements in a manner\nconsistent with the Corporation's past practices and as are provided to executives at a similar level.\n(g)\nInsurance The Corporation shall maintain the Executive as an insured party on all directors' and officers'\ninsurance maintained by the Corporation for the benefit of its directors and officers on at least the same basis as all other\ncovered individuals and provide the Executive with at least the same corporate indemnification as its officers.\n(h)\nIndemnification. The Corporation shall reimburse the Executive for reasonable attorneys' fees incurred in\nconnection with the review and negotiation of this\n2\nAgreement as well as the termination of his employment with his immediate predecessor employer. The Corporation shall indemnify the Executive for any losses or costs (including reasonable attomeys' fees) arising\nfrom\na claim by his immediate predecessor employer that the Executive breached his employment agreement with them or otherwise wrongfully terminated his employment with them. The amount of such indemnification\nshall\nnot exceed $500,000. This provision shall survive the termination of Executive's employment, except in the case of a Termination for Cause (as defined in the Income Continuity Plan).\n1.3\nTerm; Termination. The term of the employment agreement set forth in this Section 1 shall be for a period\ncommencing at the Effective Date and continuing for four (4) years thereafter (the "Scheduled Term") provided that this A greement\nshall terminate:\n(a)\nby mutual written consent of the parties;\n(b)\nupon Executive's death or inability, by reason of physical or mental impairment, to perform substantially\nall of Executive's duties as contemplated herein for a continuous period of 120 days or more; or\n(c)\nby the Corporation for Cause (as defined in the Income Continuity Plan).\nUpon any termination of employment under this Section 1.3, neither party shall have any obligation to the other pursuant to this Section 1, but such termination shall have no effect on the obligations of the parties under\nother provisions of this Agreement.\n"Effective Date" shall mean the date Executive commences work for the Corporation, which shall not be later than May 1, 2006.\n1.4\nSeverance. The parties agree that in the event the Corporation terminates the Executive's employment without\nCause or the Executive terminates the employment for "Good Reason" (as defined in the Income Continuity Plan) prior to the\nexpiration of the Scheduled Term, the Executive shall be entitled to receive the greater of (i) Base Salary and benefits (including the\nbenefits specified in Section 1.2 above and the vesting of stock options and Restricted Stock Units) for the remainder of the\nScheduled Term or (ii) the severance benefits specified in the severance guidelines adopted by the Compensation Committee of the\nCorporation's Board of Directors on March 21, 2006. If the Executive's employment termination occurs in connection with a Change\nin Control, the Executive shall be entitled to receive such payments and benefits as provided under the Income Continuity Plan, and\nthis Section 1.4 shall not apply.\n1.5\nContinuation of Employment and Benefits. The Corporation shall treat the Executive as remaining in employment\nwith the Corporation continuously during the period beginning March 18, 2002 through the Effective Date, to the maximum extent\npermitted by law and the terms of the applicable plan documents. If any law or the terms of any plan document (or related agreement)\nprevents the Corporation from treating the Executive as remaining in employment with the Corporation continuously during this\nperiod the Corporation shall pay or provide to the Executive an amount equal to the difference between (a) and (b), where (a) and\n(b) are determined as follows:\n3\n(a)\nThe payments or benefits the Executive would have received or been entitled to if the Executive had\nremained in employment with the Corporation continuously during the period beginning March 18, 2002 through the\nEffective Date; and\n(b)\nThe payments or benefits the Executive actually received or is entitled to under applicable law and the\nterms of the applicable plan documents;\nNon-Competition\n2.1\nProhibited ctivities.\n(a)\nThe Executive agrees that, during his employment with the Corporation and for a period of one (1) year\nafter the termination of such employment, the Executive will not engage in any Unethical Behavior which may adversely\naffect the Corporation. For the purpose of this Section 2.1, "Unethical Behavior" is defined as:\n(i)\nany attempt, successful or unsuccessful, by the Executive to divert any existing or pending\ncontracts or subcontracts from the Corporation to any other firm, whether or not affiliated with the Executive;\n(ii)\nany attempt, successful or unsuccessful by the Executive, to influence clients of the Corporation\nor organizations with which the Corporation has an existing or pending contract or proposal to refrain from doing\nbusiness with the Corporation or to terminate existing business with the Corporation;\n(iii)\nany attempt, successful or unsuccessful, by the Executive to offer his services, or to influence\nany other employee of the Corporation to offer their services, to any firm to compete against the Corporation; or\n(iv)\nany attempt, successful or unsuccessful, by the Executive to employ or offer employment to, or\ncause any other person to employ or offer employment to any individual who was an employee of the Corporation\nat any time during the Executive's last six months of employment with the Corporation.\n(b)\nThe Executive shall notify any new employer, partner, association or any other firm or corporation in\ncompetition with the Corporation with whom the Executive shall become associated in any capacity whatsoever of the\nprovisions of this Section 2 and the Executive agrees that the Corporation may give such notice to such firm, corporation or\nother person.\n2.2\nBusiness Opportunities; Conflicts of Interest; Other Employment and Activities of the Executive.\n(a)\nThe Executive agrees promptly to advise the Corporation of, and provide the Corporation with an\nopportunity to pursue, all business opportunities that reasonably relate to the present business conducted by the Corporation.\n(b)\nThe Executive, in his capacity as an employee of the Corporation, shall not engage in any business with\nany member of the Executive's immediate family or with\nany person or business entity in which the Executive or any member of the Executive's immediate family has any ownership interest or financial interest, unless and until the Executive has first fully disclosed such interest\nto and received written consent from the Board of Directors. As used herein, the term "immediate family" means the Executive's spouse, natural or adopted children, parents or siblings and the term "financial interest"\nmeans any relationship with such person or business entity that may monetarily benefit the Executive or member of the Executive' immediate family, including any lending relationship or the guarantying of any\nobligations of such person or business entity by the Executive or member of his immediate family.\n(c)\nThe parties hereto agree that the Executive may, consistent with this Section 2.2, receive and retain\nspeaking fees, referral fees from business opportunities not accepted by the Corporation, and fees from outside business\nactivities and opportunities of the Executive consented to by the Board of Directors.\n3.\nConfidentiality The Executive agrees that the Corporation's books, records, files and all other non-public information\nrelating to the Corporation, its business, clients and employees are proprietary in nature and contain trade secrets and shall be held in\nstrict confidence by the Executive, and shall not either during the term of this A greement or after the termination hereof, be used by\nExecutive or disclosed directly or indirectly, to any third party, except to the extent such use or disclosure is in furtherance of the\nCorporation's business or required by any law, rule, regulation or other legal process. The trade secrets or other proprietary or\nconfidential information referred to in the prior sentence includes, without limitation, all proposals to clients or potential clients,\ncontracts, client or potential client lists, fee policies financial information administration or marketing practices or procedures and\nall other information regarding the business of the Corporation and its clients not generally known to the public.\n4.\nMiscellaneous.\n4.1\nNotices. All notices, requests, demands or other communications provided for in this A greement shall be in\nwriting and shall be delivered by hand, sent prepaid by ovemight delivery service or sent by the United States mail, certified, postage\nprepaid, return receipt request, to the following:\nIf to the Corporation:\nMAXIMUS, Inc.\n11419 Sunset Hills Road\nReston, Virginia 20190\nAttention: General Counsel\n5\nIf to the Executive:\nRichard A Montoni\n9317 Morison Lane\nGreat Falls, Virginia 22066\nAny notice, request, demand or other communication delivered or sent in the foregoing manner shall be deemed given or made (as the case may be) upon the earliest of (i) the date it is actually received, (ii) the business-da after the day\non which it is delivered by hand, (iii) the business day after the day on which it is properly delivered to Federal Express (or a comparable overnight delivery service), or (iv) the third business day after the date on which it is deposited in\nthe United States mail Either party may change its address by notifying the other party of the new address in any manner permitted by this paragraph.\n4.2\nRemedies. The parties agree and acknowledge that any violation by the Executive of the terms hereof may result\nin\nirreparable injury and damage to the Corporation or its clients, which may not adequately be compensable in monetary damages, that\nthe Corporation will have no adequate remedy at law therefor, and that the Corporation may obtain such preliminary, temporary or\npermanent mandatory or restraining injunctions, orders or decrees as may be necessary to protect it against or on account of, any\nbreach of the provisions contained in this greement\n4.3\nNo Obligation of Continued Employment The Executive understands that this A greement does not create an\nobligation on the part of the Corporation to continue the Executive's employment with the Corporation after the expiration or\ntermination of this A greement\n4.4\nBenefit; A ssignment. This A greement shall bind and inure to the benefit of the parties and their respective personal\nrepresentatives, heirs, successors and assigns, provided this Agreement may not be assigned by either party without the consent of the\nother, except that the Corporation may assign this Agreement in connection with the merger, consolidation or sale of all or\nsubstantially all of its business or assets.\n4.5\nEntire A greement. This greement supersedes all prior agreements, written or oral, with respect to the subject\nmatter of this greement.\n4.6\nSeverability In the event that any one or more of the provisions contained herein shall be held to be invalid,\nillegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions of this\nA greement, and all other provisions shall remain in full force and effect. If any of the provisions of this greement is held to be\nexcessively broad, it shall be reformed and construed by limiting and reducing it so as to be enforceable to the maximum extent\npermitted by law.\n4.7\nWaivers. No delay or omission by the Corporation in exercising any right under this A greement will operate as a\nwaiver of that or any other right. A waiver or consent given by the Corporation on any occasion is effective only in that instance and\nwill not be construed as a bar to or waiver of any right on any other occasion.\n4.8\nCaptions. The captions of the various sections and paragraphs of this A greement have been inserted only for the\npurpose of convenience; such captions are not a part of this A greement and shall not be deemed in any manner to modify, explain,\nenlarge or restrict any of the provisions of this greement.\n4.9\nGoverning Law and Jurisdiction This A greement shall in all events and for all purposes be governed by, and\nconstrued in accordance with, the laws of the Commonwealth of Virginia. Any action or proceeding against the parties relating in any\nway to this A greement must be brought and enforced in the courts of Fairfax County, Virginia or the Northern District of Virginia,\nand the parties irrevocably submit to the jurisdiction of such courts in respect of any such action or proceeding.\n4.10\nAmendments. No changes to this A greement shall be binding unless in writing and signed by both the parties.\n4.11\nCounterparts. This A greement may be executed in several counterparts, each of which shall be deemed an original,\nand all such counterparts shall constitute one instrument.\nTHE EXECUTIVE HAS READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND THE EXECUTIVE UNDERSTANDS, AND AGREES TO, EACH OF SUCH PROVISIONS. THE EXECUTIVE\nUNDERSTANDS THAT THIS AGREEMENT MAY AFFECT THE EXECUTIVE' RIGHT TO ACCEPT EMPLOYMENT WITH OTHER COMPANIES SUBSEQUENT TO THE EXECUTIVE' EMPLOY MENT\nWITH THE CORPORATION.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement effective as of the date first above written.\nEXECUTIVE\nMAXIMUS Inc.\nBy\nRichard A. Montoni\nTitle\nDate\n7	EX-10 .1 2 a06-10517 _1ex10d1.htm EX-10\nExhibit 10.1\nEXECUTIVE EMPLOYMENT, NON -COMPETE\nAND CONFIDENTIALITY AGREEMENT\nTHIS EXECUTIVE EMPLOYMENT, NON -COMPETE AND CONFIDENTIALITY AGREEMENT (“Agreement”) , is entered into as of the date set forth on the signature page by and between Richard A. Montoni (the\n“Executive”) and MAXIMUS, Inc., a Virginia corporation with its principal place of business in Reston, Virginia (the “Corporation”) with reference to the following:\nWHEREAS, the parties believe the Executive possesses the experience and capabilities to provide valuable service on behalf of the Corporation; and\nWHEREAS, the Corporation desires to employ the Executive as its Chief Executive Officer; and\nWHEREAS, the Executive desires to be employed by the Corporation at the salary, benefits and other terms and conditions specified herein.\nNOW, THEREFORE, in consideration of these premises and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:\n1.\nEmployment.\n1.1\nDuties. The Corporation hereby employs the Executive, and the Executive hereby accepts such employment, to\nserve as the Chief Executive Officer. The Executive hereby represents and warrants that he is in good health and capable of\nperforming the services required hereunder. The Executive shall perform such services and duties as are appropriate to such office or\ndelegated to the Executive by the Corporation’s Board of Directors (“Board”). During the term of this Agreement, the Executive shall\nbe a full-time employee of the Corporation and shall devote such time and attention to the discharge of his duties as may be necessary\nand appropriate to accomplish and complete such duties.\nThe Executive shall be nominated by the Board for election as a director and shall serve, without additional compensation, as a member of the Board, subject to his being so elected by the Corporation’s stockholders. The\nExecutive agrees to obtain the consent of the Board, which consent may be withheld in the Board’s sole discretion, before serving on the board of any other entity or organization.\n1.2\nCompensation.\n(a)\nBase Salary. As compensation for performance of his obligations hereunder, the Corporation shall pay the\nExecutive an annual salary of $600,000 (“Base Salary”), such Base Salary to be reviewed annually beginning on or about\nOctober 1, 2006.\n(b)\nYear-End Bonus. The Executive will participate in the Corporation’s annual bonus program, with any\nawards dependent on the performance of the Executive and the Corporation. The target cash bonus for the Executive will be\nseventy percent\n(70%) of annual Base Salary for accomplishing his annual goals; except the Corporation shall pay the Executive a bonus for fiscal year 2006 equal to $600,000. Commencing on the first day of employment, the Executive\nshall be permitted to draw against his 2006 bonus in the amount of $25,000 per month; provided, however, that the Executive shall repay the Corporation any and all such amounts should the Executive terminate his\nemployment with the Corporation before the earliest of (i) September 30, 2006, (ii) a “Change in Control” (as defined in the Income Continuity Plan), or (iii) his death or disability.\n(c)\nSigning Bonus. The Corporation shall pay the Executive a lump sum cash bonus of $300,000 upon his\nexecution of this Agreement; provided that, the Executive shall repay this bonus amount in full if he terminates employment\nwith the Corporation before the earliest of (i) the one-year anniversary of the Effective Date, (ii) a “Change in Control” (as\ndefined in the Income Continuity Plan), or (iii) his death or disability.\n(d)\nEquity Awards. On the Effective Date, the Corporation shall award the Executive 112,500 Restricted\nStock Units, under and subject to the terms of the MAXIMUS, Inc. 1997 Equity Incentive Plan (the “Equity Plan”), vesting\nat one-third on March 31, 2007, March 31, 2008 and March 31, 2009. Such award shall (i) provide for accelerated vesting in\nthe event of a Change in Control and (ii) have such other terms and conditions as are included in the standard MAXIMUS\nRestricted Stock Unit Agreement that will be subsequently executed by the parties. In addition, the Executive shall be\nentitled to future awards under the Equity Plan in the discretion of the Corporation’s Board of Directors, and shall also be\nentitled to participate in stock option and similar plans as currently exist or may be established by the Corporation from time\nto time. The Corporation agrees to proportionately adjust the Executive’s vested and unvested equity awards in the event the\nCorporation declares an extraordinary dividend during the term hereof. For these purposes, an “extraordinary dividend”\nwould be any distribution per share having a value in excess of ten percent (10%) of the average trading price of the\nCorporation’s common stock during the three-month period preceding such distribution.\n(e)\nIncome Continuity Program. On the Effective Date, the Executive shall become a Participant in the\nMAXIMUS, Inc. Income Continuity Program (the “Income Continuity Plan”).\n(f)\nVacation, Insurance, Expenses, Etc. The Executive shall be entitled to 20 days accrual paid vacation per\nyear, and such benefits, health, disability and life insurance and other benefits and expense reimbursements in a manner\nconsistent with the Corporation’s past practices and as are provided to executives at a similar level.\n(g)\nInsurance. The Corporation shall maintain the Executive as an insured party on all directors’ and officers’\ninsurance maintained by the Corporation for the benefit of its directors and officers on at least the same basis as all other\ncovered individuals and provide the Executive with at least the same corporate indemnification as its officers.\n(h)\nIndemnification. The Corporation shall reimburse the Executive for reasonable attorneys’ fees incurred in\nconnection with the review and negotiation of this\n2\nAgreement as well as the termination of his employment with his immediate predecessor employer. The Corporation shall indemnify the Executive for any losses or costs (including reasonable attorneys’ fees) arising from\na claim by his immediate predecessor employer that the Executive breached his employment agreement with them or otherwise wrongfully terminated his employment with them. The amount of such indemnification shall\nnot exceed $500,000. This provision shall survive the termination of Executive’s employment, except in the case of a Termination for Cause (as defined in the Income Continuity Plan).\n1.3\nTerm; Termination. The term of the employment agreement set forth in this Section 1 shall be for a period\ncommencing at the Effective Date and continuing for four (4) years thereafter (the “Scheduled Term”) provided that this Agreement\nshall terminate:\n(a)\nby mutual written consent of the parties;\n(b)\nupon Executive’s death or inability, by reason of physical or mental impairment, to perform substantially\nall of Executive’s duties as contemplated herein for a continuous period of 120 days or more; or\n(c)\nby the Corporation for Cause (as defined in the Income Continuity Plan).\nUpon any termination of employment under this Section 1.3, neither party shall have any obligation to the other pursuant to this Section 1, but such termination shall have no effect on the obligations of the parties under\nother provisions of this Agreement.\n“Effective Date” shall mean the date Executive commences work for the Corporation, which shall not be later than May 1, 2006.\n1.4\nSeverance. The parties agree that in the event the Corporation terminates the Executive’s employment without\nCause or the Executive terminates the employment for “Good Reason” (as defined in the Income Continuity Plan) prior to the\nexpiration of the Scheduled Term, the Executive shall be entitled to receive the greater of (i) Base Salary and benefits (including the\nbenefits specified in Section 1.2 above and the vesting of stock options and Restricted Stock Units) for the remainder of the\nScheduled Term or (ii) the severance benefits specified in the severance guidelines adopted by the Compensation Committee of the\nCorporation’s Board of Directors on March 21, 2006. If the Executive’s employment termination occurs in connection with a Change\nin Control, the Executive shall be entitled to receive such payments and benefits as provided under the Income Continuity Plan, and\nthis Section 1.4 shall not apply.\n1.5\nContinuation of Employment and Benefits. The Corporation shall treat the Executive as remaining in employment\nwith the Corporation continuously during the period beginning March 18, 2002 through the Effective Date, to the maximum extent\npermitted by law and the terms of the applicable plan documents. If any law or the terms of any plan document (or related agreement)\nprevents the Corporation from treating the Executive as remaining in employment with the Corporation continuously during this\nperiod, the Corporation shall pay or provide to the Executive an amount equal to the difference between (a) and (b), where (a) and\n(b) are determined as follows:\n3\n(a)\nThe payments or benefits the Executive would have received or been entitled to if the Executive had\nremained in employment with the Corporation continuously during the period beginning March 18, 2002 through the\nEffective Date; and\n(b)\nThe payments or benefits the Executive actually received or is entitled to under applicable law and the\nterms of the applicable plan documents;\n2.\nNon-Competition.\n2.1\nProhibited Activities.\n(a)\nThe Executive agrees that, during his employment with the Corporation and for a period of one (1) year\nafter the termination of such employment, the Executive will not engage in any Unethical Behavior which may adversely\naffect the Corporation. For the purpose of this Section 2.1, “Unethical Behavior” is defined as:\n(i)\nany attempt, successful or unsuccessful, by the Executive to divert any existing or pending\ncontracts or subcontracts from the Corporation to any other firm, whether or not affiliated with the Executive;\n(ii)\nany attempt, successful or unsuccessful, by the Executive, to influence clients of the Corporation\nor organizations with which the Corporation has an existing or pending contract or proposal to refrain from doing\nbusiness with the Corporation or to terminate existing business with the Corporation;\n(iii)\nany attempt, successful or unsuccessful, by the Executive to offer his services, or to influence\nany other employee of the Corporation to offer their services, to any firm to compete against the Corporation; or\n(iv)\nany attempt, successful or unsuccessful, by the Executive to employ or offer employment to, or\ncause any other person to employ or offer employment to any individual who was an employee of the Corporation\nat any time during the Executive’s last six months of employment with the Corporation.\n(b)\nThe Executive shall notify any new employer, partner, association or any other firm or corporation in\ncompetition with the Corporation with whom the Executive shall become associated in any capacity whatsoever of the\nprovisions of this Section 2 and the Executive agrees that the Corporation may give such notice to such firm, corporation or\nother person.\n2.2\nBusiness Opportunities; Conflicts of Interest; Other Employment and Activities of the Executive.\n(a)\nThe Executive agrees promptly to advise the Corporation of, and provide the Corporation with an\nopportunity to pursue, all business opportunities that reasonably relate to the present business conducted by the Corporation.\n(b)\nThe Executive, in his capacity as an employee of the Corporation, shall not engage in any business with\nany member of the Executive’s immediate family or with\n4\nany person or business entity in which the Executive or any member of the Executive’s immediate family has any ownership interest or financial interest, unless and until the Executive has first fully disclosed such interest\nto and received written consent from the Board of Directors. As used herein, the term “immediate family” means the Executive’s spouse, natural or adopted children, parents or siblings and the term “financial interest”\nmeans any relationship with such person or business entity that may monetarily benefit the Executive or member of the Executive’s immediate family, including any lending relationship or the guarantying of any\nobligations of such person or business entity by the Executive or member of his immediate family.\n(c)\nThe parties hereto agree that the Executive may, consistent with this Section 2.2, receive and retain\nspeaking fees, referral fees from business opportunities not accepted by the Corporation, and fees from outside business\nactivities and opportunities of the Executive consented to by the Board of Directors.\n3.\nConfidentiality. The Executive agrees that the Corporation’s books, records, files and all other non-public information\nrelating to the Corporation, its business, clients and employees are proprietary in nature and contain trade secrets and shall be held in\nstrict confidence by the Executive, and shall not, either during the term of this Agreement or after the termination hereof, be used by\nExecutive or disclosed, directly or indirectly, to any third party, except to the extent such use or disclosure is in furtherance of the\nCorporation’s business or required by any law, rule, regulation or other legal process. The trade secrets or other proprietary or\nconfidential information referred to in the prior sentence includes, without limitation, all proposals to clients or potential clients,\ncontracts, client or potential client lists, fee policies, financial information, administration or marketing practices or procedures and\nall other information regarding the business of the Corporation and its clients not generally known to the public.\n4.\nMiscellaneous.\n4.1\nNotices. All notices, requests, demands or other communications provided for in this Agreement shall be in\nwriting and shall be delivered by hand, sent prepaid by overnight delivery service or sent by the United States mail, certified, postage\nprepaid, return receipt request, to the following:\nIf to the Corporation:\nMAXIMUS, Inc.\n11419 Sunset Hills Road\nReston, Virginia 20190\nAttention: General Counsel\n5\nIf to the Executive:\nRichard A. Montoni\n9317 Morison Lane\nGreat Falls, Virginia 22066\nAny notice, request, demand or other communication delivered or sent in the foregoing manner shall be deemed given or made (as the case may be) upon the earliest of (i) the date it is actually received, (ii) the business-day after the day\non which it is delivered by hand, (iii) the business day after the day on which it is properly delivered to Federal Express (or a comparable overnight delivery service), or (iv) the third business day after the date on which it is deposited in\nthe United States mail. Either party may change its address by notifying the other party of the new address in any manner permitted by this paragraph.\n4.2\nRemedies. The parties agree and acknowledge that any violation by the Executive of the terms hereof may result in\nirreparable injury and damage to the Corporation or its clients, which may not adequately be compensable in monetary damages, that\nthe Corporation will have no adequate remedy at law therefor, and that the Corporation may obtain such preliminary, temporary or\npermanent mandatory or restraining injunctions, orders or decrees as may be necessary to protect it against, or on account of, any\nbreach of the provisions contained in this Agreement.\n4.3\nNo Obligation of Continued Employment. The Executive understands that this Agreement does not create an\nobligation on the part of the Corporation to continue the Executive’s employment with the Corporation after the expiration or\ntermination of this Agreement.\n4.4\nBenefit; Assignment. This Agreement shall bind and inure to the benefit of the parties and their respective personal\nrepresentatives, heirs, successors and assigns, provided this Agreement may not be assigned by either party without the consent of the\nother, except that the Corporation may assign this Agreement in connection with the merger, consolidation or sale of all or\nsubstantially all of its business or assets.\n4.5\nEntire Agreement. This Agreement supersedes all prior agreements, written or oral, with respect to the subject\nmatter of this Agreement.\n4.6\nSeverability. In the event that any one or more of the provisions contained herein shall be held to be invalid,\nillegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions of this\nAgreement, and all other provisions shall remain in full force and effect. If any of the provisions of this Agreement is held to be\nexcessively broad, it shall be reformed and construed by limiting and reducing it so as to be enforceable to the maximum extent\npermitted by law.\n4.7\nWaivers. No delay or omission by the Corporation in exercising any right under this Agreement will operate as a\nwaiver of that or any other right. A waiver or consent given by the Corporation on any occasion is effective only in that instance and\nwill not be construed as a bar to or waiver of any right on any other occasion.\n6\n4.8\nCaptions. The captions of the various sections and paragraphs of this Agreement have been inserted only for the\npurpose of convenience; such captions are not a part of this Agreement and shall not be deemed in any manner to modify, explain,\nenlarge or restrict any of the provisions of this Agreement.\n4.9\nGoverning Law and Jurisdiction. This Agreement shall in all events and for all purposes be governed by, and\nconstrued in accordance with, the laws of the Commonwealth of Virginia. Any action or proceeding against the parties relating in any\nway to this Agreement must be brought and enforced in the courts of Fairfax County, Virginia or the Northern District of Virginia,\nand the parties irrevocably submit to the jurisdiction of such courts in respect of any such action or proceeding.\n4.10\nAmendments. No changes to this Agreement shall be binding unless in writing and signed by both the parties.\n4.11\nCounterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original,\nand all such counterparts shall constitute one instrument.\nTHE EXECUTIVE HAS READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND THE EXECUTIVE UNDERSTANDS, AND AGREES TO, EACH OF SUCH PROVISIONS. THE EXECUTIVE\nUNDERSTANDS THAT THIS AGREEMENT MAY AFFECT THE EXECUTIVE’S RIGHT TO ACCEPT EMPLOYMENT WITH OTHER COMPANIES SUBSEQUENT TO THE EXECUTIVE’S EMPLOYMENT\nWITH THE CORPORATION.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement effective as of the date first above written.\nEXECUTIVE\nMAXIMUS, Inc.\nBy\nRichard A. Montoni\nDate\nTitle\n7
c0125d77e2ef0b53a7490234828629d8.pdf	jurisdiction party	Exhibit 10.21\nAT-WILL CONFIDENTIALITY AGREEMENT\nREGARDING\nCERTAIN TERMS AND CONDITIONS\nOF EMPLOYMENT\nAT SPS COMMERCE, INC.\nTHIS AMENDED AND RESTATED AGREEMENT (the “Agreement”) dated as of , 2008 (the “Effective Date”) is made\nbetween\n,\n,\n, MN (hereinafter referred to as “Employee”) and SPS Commerce, Inc., a Delaware corporation,\nwith offices at 333 South Seventh Street, Suite 1000, Minneapolis, Minnesota 55402 (hereinafter referred to as “Employer”);\nWHEREAS, Employer is engaged in the business of developing, marketing and distributing computer software products and\nservices;\nWHEREAS, Employee has knowledge and experience in the above-designated business;\nWHEREAS, Employee and Employer are parties to an At-Will Confidentiality Agreement Regarding Certain Terms and\nConditions of Employment at SPS Commerce, Inc., dated\n(the “Prior Agreement”), which the parties desire to amend and\nrestate in its entirety with this Agreement;\nWHEREAS, Employer and Employee desire to amend, modify, and restate the Prior Agreement to comply with the requirements\nof Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and with the intent to exclude amounts payable as\nseverance from deferred compensation under Code Section 409A(a)(1); and\nWHEREAS, Employee acknowledges the receipt of good and valuable consideration from Employer in support of the Prior\nAgreement, and Employee further acknowledges and agrees that such consideration shall, together with the benefits hereunder,\nsupport the restatement of his/her obligations in this Agreement.\nFor the reasons set forth above, and in consideration of the mutual promises and agreements hereinafter set forth, Employer and\nEmployee agree as follows:\n1. EMPLOYMENT. Employee shall serve as\n, subject to the general supervision and pursuant to the order, advice, and\ndirection of Employer. Employee shall perform such duties as are customarily performed by one holding such position in other, same,\nor similar businesses or enterprises as that engaged in by Employer, and shall also additionally render such other and unrelated\nservices and duties as may reasonably be assigned to him/her from time to time by Employer.\n2. BEST EFFORTS OF EMPLOYEE. Employee agrees that he/she will at all times faithfully, industriously, and to the best of\nhis/her ability, experience and talents, perform all of the duties that may be required of and from his/her pursuant to the express and\nimplicit terms hereof, to the reasonable satisfaction of Employer.\n-1-\n3. OTHER EMPLOYMENT. Employee shall devote all of his/her time, attention, knowledge, and skills solely to the business\nand interest of Employer.\n4. CONFIDENTIALITY AND TRADE SECRETS. Employee will not disclose, use, reveal, disseminate or transfer any\nconfidential information acquired by Employee to any outside party, except as directly required in the performance of Employee’s\nduties for Employer or as required by law. Confidential information includes, but is not limited to, information regarding Employer’s\nproducts, processes, services, research, development, inventions, computer media, operations, manufacture, purchasing, accounting,\nfinancial data, engineering, sales, marketing, merchandising, selling, payroll, customer lists, credit classification, record, statistics,\ncontracts and suppliers which was obtained by Employee while employed by Employer or as a consequence of such employment\nwith Employer and not generally known. The foregoing is all deemed as confidential information and/or a trade secret, whether or not\nsuch information is clearly marked as “Confidential” or as a “Trade Secret”, the parties hereto stipulating that as between them the\nsame are important, material, confidential and constitute trade secrets, and as such gravely affect the effective and successful conduct\nof Employer’s business and goodwill. Confidential information also includes similar information belonging to Employer’s customers\nwhich Employee may gain access to in rendering services to any such customer on behalf of Employer.\n5. DISCLOSURE AND ASSIGNMENT. Employee agrees that all trade secrets, all inventions and patents, except those\nexcluded from any obligation to assign to Employer as a matter of law by any applicable state statute existing at the time such\ninvention was made, all works of authorship (including, but not limited to, illustrations, writing, mask works, software and computer\nprograms, and other programming documentation) and all other business or technical information created, prepared or conceived by\nEmployee, either alone or with others, while employed by Employer and related to the existing or contemplated business or research\nof Employer, or resulting from Employee’s work with Employer or from Employee’s knowledge of any proprietary, technical or\nbusiness information possessed or owned by Employer under paragraph 4 above, belongs to Employer. All such works of authorship\nshall be works made for hire. Until proven otherwise, any invention shall be presumed to have been conceived during such\nemployment if, within one (1) year after termination of such employment, it is disclosed to others, completed, or it has a copyright\nnotice affixed thereto or a patent application filed thereon.\nEmployee will promptly disclose to Employer all trade secrets, inventions, works of authorship, and information which belong to\nEmployer as set forth herein; and Employee will assign to Employer, or to others as directed by Employer, all of Employee’s interest\nin such inventions and works of authorship, and will execute any papers and do any acts which Employer may consider necessary to\nsecure to it any and all rights relating to such inventions and works of authorship, including all patents and copyrights (and renewals\nthereof) in any country.\nPursuant to Minnesota Statute 181.78, Subd. 1, the assignment provisions of this paragraph shall not apply to any ideas,\ndiscoveries, inventions or improvement for which no equipment, supplies, facility or trade secret information of the Employer was\nused, and which was developed entirely on Employee’s own time, and (1) which does not relate (a) directly to the\n-2-\nbusiness of the Employer or (b) to the Employer’s actual or demonstrably anticipated research or development; or (2) which does not\nresult from any work performed by Employee for the Employer.\n6. ASSISTANCE TO EMPLOYER. Employee shall give Employer, at Employer’s expense, all assistance Employer reasonably\nrequires to perfect, protect, and exercise the rights to all ideas, discoveries, inventions or improvements acquired by Employer\npursuant to the assignment provisions of paragraph 5 of this Agreement.\n7. RETURN OF DOCUMENTS. All documents or other property relating in any way to the business of Employer which are\nconceived or generated by Employee or come into Employee’s possession during Employee’s employment shall be and remain\nEmployer’s exclusive property. Employee will, upon termination of employment, leave with or deliver to Employer’s possession all\ncopies of documents, records, notes, books, directories, telephone and/or address listings, computer media, and similar repositories\ncontaining any confidential information whether prepared or maintained by Employee or another.\n8. NON-COMPETITION AND NON-SOLICITATION. During the term of employment with Employer and for one (1) year\nthereafter, Employee will not act as a Competing Person or Organization, act as an employee, owner, partner, consultant, or agent of\nany Competing Person or Organization or render any services, directly or indirectly, to any Competing Person or Organization.\n“Competing Person or Organization” includes any person or organization engaged in, or about to become engaged in, research,\ndevelopment, production, marketing or selling of any product, process or service in which the Employee was involved in any\ncapacity, or about which Employee obtained confidential information while employed by Employer. Competing Person or\nOrganization does not include:\n(A)\nA person or organization involved solely in a business substantially different from those in which Employee was engaged, and\nabout which Employee obtained no confidential information while employed by Employer; or\n(B)\nA person or organization involved in a business similar to that in which Employee was engaged while employed by Employer\nbut which markets and sells exclusively to persons or organizations: (i) which have not purchased any product, process or\nservice from Employer within two (2) years prior to Employee’s separation from employment; and (ii) about which Employee\nobtained no confidential information while employed by Employer.\nDuring the term of employment with Employer and for one (1) year thereafter, Employee will not, individually or in combination\nwith any Competing Person or Organization, market, produce, solicit orders, sell, deliver, create or provide any product, process, or\nservice which resembles or competes with a product, process or service with which Employee was involved in any capacity while\nemployed by Employer to any person or organization that was a customer or identified prospect of Employer within the two (2) year\nperiod prior to the date of Employee’s\n-3-\nseparation from employment or was contacted by the Employee within two (2) years prior to the date of Employee’s separation from\nemployment.\nEmployee further agrees that during the term of employment and for one (1) year thereafter, Employee shall not directly or\nindirectly in any manner solicit, assist, or encourage (or assist any other person or entity in soliciting or encouraging) any other\nofficer or employee of Employer to work or otherwise provide services to Employee or to any entity in which Employee participates\nin the ownership, management, operation, or control of, or is connected with in any manner as an independent contractor, consultant,\nor otherwise.\n9. REASONABLENESS OF TERMS. Employee acknowledges that compliance with the covenants contained herein upon\nseparation from employment with Employer shall not impair Employee’s ability to earn a livelihood. Employee further acknowledges\nthat the time and area restrictions contained herein are reasonable and not unduly burdensome.\n10. AT -WILL EMPLOYMENT; TERMINATION. Employee understands that Employer is an at-will employment employer.\nThis means the employment relationship may be terminated by either party at any time and for any reason. This Agreement is not a\ncontract for employment for any specific length of time. Notwithstanding the foregoing, if either Employee or Employer desire to\nterminate the employment of Employee, each such party shall give at least 30 days notice to the other party prior to the effective date\nof such termination (except in the case of a termination by Employer for Cause (as defined in paragraph 11(c) below), in which case\nEmployer shall be permitted to terminate Employee’s employment immediately upon notice thereof).\n11. SEVERANCE.\na. Involuntary Termination without Cause. In the event that Employer terminates Employee’s employment without Cause,\nand provided that such termination of employment does not occur upon or within twelve (12) months after a Change in Control,\nEmployer shall pay Employee severance equal to six (6) months of Employee’s then current base salary, provided that such severance\nshall not exceed two times the lesser of (a) the Code § 401(a)(17) compensation limit for the year in which the Termination Date\noccurs, or (b) Employee’s annualized compensation based upon the annual rate of pay for services to Employer for the calendar year\nprior to the calendar year in which the Termination Date occurs (adjusted for any increase during that year that was expected to\ncontinue indefinitely if the Employee had not separated from service). Payment of such severance will be conditioned on Employee’s\nexecution (and non-rescission) of a standard release of claims in the form provided by Employer at the time of such termination.\nSeverance will be paid to Employee over the six (6) month severance period commencing from and after the Termination Date, in\naccordance with Employer’s normal payroll schedule. Severance payments shall be subject to normal payroll withholdings. The\nEmployer and Employee intend the severance payments under this paragraph 11(a) to be a “separation pay plan due to involuntary\nseparation from service” under Treas. Reg. § 1.409A-1(b)(9)(iii).\nb. Involuntary Termination After Change in Control. In the event that Employer terminates Employee’s employment\nwithout Cause upon or within twelve (12) months\n-4-\nafter a Change in Control, or in the event that Employee quits for Good Reason upon or within twelve (12) months after a Change in\nControl, Employer shall pay Employee severance equal to twelve months of Employee’s then current base salary, as follows:\n(i) Limitation on Payment Amount. Such severance shall not exceed a maximum amount of two times the lesser of (x) the\nCode § 401(a)(17) compensation limit for the year in which the Termination Date occurs, or (y) Employee’s annualized\ncompensation based upon the annual rate of pay for services to the Service Recipient for the calendar year prior to the calendar year\nin which the Termination Date occurs (adjusted for any increase during that year that was expected to continue indefinitely if the\nEmployee had not separated from service). Severance will be paid to Employee over the twelve-month severance period commencing\nfrom and after the Termination Date, in accordance with Employer’s normal payroll schedule. Employer and Employee intend the\nseverance payments under this paragraph 11(b)(i) to be a “separation pay plan due to involuntary separation from service” under\nTreas. Reg. § 1.409A-1(b)(9)(iii).\n(ii) Alternative Form of Payment. If the severance otherwise payable to Employee is reduced to zero (0) by application of\nthe maximum limitation under paragraph 11(b)(i)(y), then Employer shall in the alternative pay Employee severance equal to twelve\nmonths of Employee’s then-current base salary commencing from and after the Termination Date, in accordance with the normal\npayroll schedule of Employer, except that any amounts that remain payable as of the Short-Term Deferral Deadline shall be paid in a\nlump sum no later than the Short-Term Deferral Deadline. Employer and Employee intend the severance payments under this\nparagraph 11(b)(ii) to constitute a short-term deferral under Treas. Reg. § 1.409A-1(b)(4).\n(iii) Other Conditions. Payment of such severance under this paragraph 11(b) will be conditioned on Employee’s execution\n(and non-rescission) of a standard release of claims in the form provided by Employer at the time of such termination. If Employee’s\nemployment is terminated without Cause under conditions such that he/she is entitled to severance payments under this paragraph\n11(b), then Employee shall be entitled to severance payments only under this paragraph 11(b) and shall not be entitled to any\nseverance payments under paragraph 11(a) of this Agreement. Severance payments shall be subject to normal payroll withholdings.\nc. Definitions. For purposes of this Agreement, the following terms shall have the following meanings:\n(i) “Cause” and “Change in Control” shall have the meanings ascribed to those terms as set forth in the SPS Commerce,\nInc. 2001 Stock Option Plan (the “Stock Option Plan”), as amended.\n(ii) “Employer” shall include any current or future successor, parent, subsidiary, affiliate or other joint venture partner to\nwhich any right or obligation has been assigned or delegated by SPS Commerce, Inc. or by operation of law.\n-5-\n(iii) “Good Reason” shall mean a material reduction in Employee’s then-current base salary at the time of the Change in\nControl or a material reduction in Employee’s employment responsibilities following such Change in Control, in each case without\nEmployee’s consent, provided that Employee first gives notice of the material reduction giving rise to Good Reason to the Employer\nwithin ninety (90) days of the first occurrence of the reduction, and provided further that upon giving notice Employee provides\nEmployer 30 days in which to remedy the reduction and not be required to pay the severance amount set forth in paragraph 11(b).\nNotwithstanding anything to the contrary in this paragraph 11(c), Employee shall not be deemed to have quit for Good Reason, and\nEmployee shall not be entitled to payments upon his/her resignation under this Agreement, unless Employee’s Termination Date\nfollowing his/her resignation for Good Reason occurs within two (2) years following the first occurrence of the reduction.\n(iv) “Service Recipient” shall have the meaning set forth in Treas. Reg. § 1.409A-1(g).\n(v) “Short-Term Deferral Deadline” shall mean the date that is the 15th day of the third month following the end of the later\nof the calendar year, or the Service Recipient’s taxable year, in which the Termination Date occurs.\n(vi) “Termination Date” shall mean the date upon which Employee’s termination of employment with Employer is\neffective. For purposes of paragraph 11 of this Agreement only, the Termination Date shall mean the date on which a “separation\nfrom service” has occurred for purposes of Section 409A of the Code and the regulations and guidance thereunder.\n12. SURVIVAL OF OBLIGATIONS. All provisions of this Agreement relating to discoveries, confidential information, trade\nsecrets, competitive activities, and ownership of proprietary property, shall survive termination of the employment relationship\nbetween Employee and Employer.\n13. MODIFICATION OF AGREEMENT. No waiver or modification of this Agreement or of any covenant, condition, or\nlimitation herein contained shall be valid unless in writing and duly executed by both parties.\n14. CHOICE OF LAW, JURISDICTION, AND VENUE. The validity, construction and performance of this Agreement shall\nbe governed by, and construed in accordance with, the laws of the State of Minnesota, without reference to any choice of laws\nprovisions thereof. The parties further agree that any litigation or proceeding arising out of, or relating to, this Agreement (whether\nthe same sounds in tort or contract or both) shall be commenced and maintained in a federal or state court located in Hennepin\nCounty, Minnesota, and for such purpose the parties consent to any such court’s exercise of personal jurisdiction over them.\n15. INJUNCTIVE RELIEF — ATTORNEY’S FEES. In recognition of the irreparable harm that violation of this Agreement\ncould cause Employer, Employee agrees that, in addition to any relief afforded by law, an injunction against such violation or\nviolations may\n-6-\nbe issued against Employee, it being understood by the parties that both damages and an injunction shall be proper modes of relief\nand not considered alternative remedies. In the event of any such violation(s), Employee agrees to pay the reasonable attorneys’ fees\nincurred by Employer in the enforcement of any of its rights with respect to said violation(s), in addition to the actual damages\nsustained by Employer as a result thereof.\n16. ASSIGNMENTS. This Agreement is personal in nature and cannot be assigned by Employee. The terms, conditions,\ncovenants, and representations herein shall inure to and be binding upon the heirs and representatives of Employee and shall inure to\nthe benefit of and shall be binding upon the successors and assigns of Employer.\n17. SEVERABILITY. Agreements and covenants contained herein are severable, and in the event any of them shall be held to be\ninvalid by any competent court, this Agreement shall be interpreted as if such invalid agreement or covenants were not contained\nherein.\n18. INTERPRETATION. This Agreement is intended to satisfy, or be exempt from, the requirements of Section 409A(a)(2), (3),\nand (4) of the Code, including current and future guidance and regulations interpreting such provisions, and should be interpreted\naccordingly.\n19. TAXES. Employer may withhold from any amounts payable under this Agreement such federal, state and local income and\nemployment taxes as Employer shall determine are required to be withheld pursuant to any applicable law or regulation. Employee\nshall be solely responsible for the payment of all taxes due and owing with respect to wages, benefits, and other compensation\nprovided to him/her hereunder.\n20. COMPLETE AGREEMENT. This Agreement and any stock option agreements between Employer and Employee contain\nthe complete agreement concerning the terms and conditions of the employment arrangement between the parties and shall, as of the\neffective date hereof, supersede all other agreements between the parties, including without limitation the Prior Agreement. The\nparties stipulate that neither of them has made any representation with respect to the subject matter of this Agreement or any\nrepresentations including the execution and delivery hereof except such representations as are specifically set forth herein and the\nparties hereto acknowledge that they have relied on their own judgment in entering into this Agreement.\nSPS COMMERCE, INC.\nEMPLOYEE\nEMPLOYER\nBy:\nBy:\nIts:\nDate:\nDate:\n-7-	Exhibit 10.21\nAT-WILL CONFIDENTIALITY AGREEMENT\nREGARDING\nCERTAIN TERMS AND CONDITIONS\nOF EMPLOYMENT\nAT SPS COMMERCE, INC.\nTHIS AMENDED AND RE STATED AG REEMENT (the ”Agreement") dated as of , 2008 (the ”Effective Date") is made\nbetween , , , MN (hereinafter referred to as ”Employee”) and SP8 Commerce, Inc., a Delaware corporation,\nwith offices at 333 South Seventh Street, Suite 1000, Minneapolis, Minnesota 55402 (hereinafter referred to as ”Employer”);\nWHEREAS, Employer is engaged in the business of developing, marketing and distributing computer software products and\nservices;\nWHEREAS, Employee has knowledge and experience in the above designated business;\nWHEREAS, Employee and Employer are parties to an At-Will Confidentiality Agreement Regarding Certain Terms and\nConditions of Employment at SPS Commerce, Inc., dated (the ”Prior Agreement"), which the parties desire to amend and\nrestate in its entirety with this Agreement;\nWHEREAS, Employer and Employee desire to amend, modify, and restate the Prior Agreement to comply with the requirements\nof Section 409A of the lntemal Revenue Code of 1986, as amended (the ”C ode”), and with the intent to exclude amounts payable as\nseverance from deferred compensation under Code Section 409A (a)(1); and\nWHEREAS, Employee acknowledges the receipt of good and valuable consideration from Employer in support of the Prior\nAgreement, and Employee further acknowledges and agrees that such consideration shall, together with the benefits hereunder,\nsupport the restatement of his/her obligations in this A greement.\nFor the reasons set forth above, and in consideration of the mutual promises and agreements hereinafter set forth, Employer and\nEmployee agree as follows:\n1. EMPLOYMENT. Employee shall serve as , subject to the general supervision and pursuant to the order, advice, and\ndirection of Employer. Employee shall perform such duties as are customarily performed by one holding such position in other, same,\nor similar businesses or enterprises as that engaged in by Employer, and shall also additionally render such other and unrelated\nservices and duties as may reasonably be assigned to him/her from time to time by Employer.\n2. BE ST EFFORTS OF EMPLOYEE. Employee agrees that he/she will at all times faithfully, industriously, and to the best of\nhis/her ability, experience and talents, perform all of the duties that may be required of and from his/her pursuant to the express and\nimplicit terms hereof, to the reasonable satisfaction of Employer.\n3. OTHER EMPLOYMENT. Employee shall devote all of his/her time, attention, knowledge, and skills solely to the business\nand interest of Employer.\n4. CONFIDENTIALITY AND TRADE SECRETS. Employee will not disclose, use, reveal, disseminate or transfer any\nconfidential information acquired by Employee to any outside party, except as directly required in the performance of Employee' s\nduties for Employer or as required by law. Confidential information includes, but is not limited to, information regarding Employer” s\nproducts, processes, services, research, development, inventions, computer media, operations, manufacture, purchasing, accounting,\nfinancial data, engineering, sales, marketing, merchandising, selling, payroll, customer lists, credit classification, record, statistics,\ncontracts and suppliers which was obtained by Employee while employed by Employer or as a consequence of such employment\nwith Employer and not generally known. The foregoing is all deemed as confidential information and/or a trade secret, whether or not\nsuch information is clearly marked as ”Confidential" or as a ”Trade Secret", the parties hereto stipulating that as between them the\nsame are important, material, confidential and constitute trade secrets, and as such gravely affect the effective and successful conduct\nof Employer” s business and goodwill. Confidential information also includes similar information belonging to Employer” s customers\nwhich Employee may gain access to in rendering services to any such customer on behalf of Employer.\n5. DISCLOSURE AND ASSIG NMENT. Employee agrees that all trade secrets, all inventions and patents, except those\nexcluded from any obligation to assign to Employer as a matter of law by any applicable state statute existing at the time such\ninvention was made, all works of authorship (including, but not limited to, illustrations, writing, mask works, software and computer\nprograms, and other programming documentation) and all other business or technical information created, prepared or conceived by\nEmployee, either alone or with others, while employed by Employer and related to the existing or contemplated business or research\nof Employer, or resulting from Employee' s work with Employer or from Employee' s knowledge of any proprietary, technical or\nbusiness information possessed or owned by Employer under paragraph 4 above, belongs to Employer. All such works of authorship\nshall be works made for hire. Until proven otherwise, any invention shall be presumed to have been conceived during such\nemployment if, within one (1) year after termination of such employment, it is disclosed to others, completed, or it has a copyright\nnotice affixed thereto or a patent application filed thereon.\nEmployee will promptly disclose to Employer all trade secrets, inventions, works of authorship, and information which belong to\nEmployer as set forth herein; and Employee will assign to Employer, or to others as directed by Employer, all of Employee' s interest\nin such inventions and works of authorship, and will execute any papers and do any acts which Employer may consider necessary to\nsecure to it any and all rights relating to such inventions and works of authorship, including all patents and copyrights (and renewals\nthereof) in any country.\nPursuant to Minnesota Statute 181.78, Subd. 1, the assignment provisions of this paragraph shall not apply to any ideas,\ndiscoveries, inventions or improvement for which no equipment, supplies, facility or trade secret information of the Employer was\nused, an_d which was developed entirely on Employee' s own time, Q (1) which does not relate (a) directly to the\n-2-\nbusiness of the Employer or (b) to the Employer” s actual or demonstrably anticipated research or development; or (2) which does not\nresult from any work performed by Employee for the Employer.\n6. ASSISTANCE TO EMPLOYER. Employee shall give Employer, at Employer s expense, all assistance Employer reasonably\nrequires to perfect, protect, and exercise the rights to all ideas, discoveries, inventions or improvements acquired by Employer\npursuant to the assignment provisions of paragraph 5 of this Agreement.\n7. RETURN OF DOCUMENTS. All documents or other property relating in any way to the business of Employer which are\nconceived or generated by Employee or come into Employee' s possession during Employee' s employment shall be and remain\nEmployer“ s exclusive property. Employee will, upon termination of employment, leave with or deliver to Employer” s possession all\ncopies of documents, records, notes, books, directories, telephone and/or address listings, computer media, and similar repositories\ncontaining any confidential information whether prepared or maintained by Employee or another.\n8. NON-COMPETITION AND NON-SOLICITATION. During the term of employment with Employer and for one (1) year\nthereafter, Employee will not act as a Competing Person or Organization, act as an employee, owner, partner, consultant, or agent of\nany Competing Person or Organization or render any services, directly or indirectly, to any Competing Person or Organization.\n”Competing Person or Organization” includes any person or organization engaged in, or about to become engaged in, research,\ndevelopment, production, marketing or selling of any product, process or service in which the Employee was involved in any\ncapacity, or about which Employee obtained confidential information while employed by Employer. Competing Person or\nOrganization does not include:\nA person or organization involved solely in a business substantially different from those in which Employee was engaged, and\nabout which Employee obtained no confidential information while employed by Employer; or\nA person or organization involved in a business similar to that in which Employee was engaged while employed by Employer\nbut which markets and sells exclusively to persons or organizations: (1) which have not purchased any product, process or\nservice from Employer within two (2) years prior to Employee’s separation from employment; and (ii) about which Employee\nobtained no confidential information while employed by Employer.\nDuring the term of employment with Employer and for one (1) year thereafter, Employee will not, individually or in combination\nwith any Competing Person or Organization, market, produce, solicit orders, sell, deliver, create or provide any product, process, or\nservice which resembles or competes with a product, process or service with which Employee was involved in any capacity while\nemployed by Employer to any person or organization that was a customer or identified prospect of Employer within the two (2) year\nperiod prior to the date of Employee’s\nseparation from employment or was contacted by the Employee within two (2) years prior to the date of Employee’ s separation from\nemployment.\nEmployee further agrees that during the term of employment and for one (1) year thereafter, Employee shall not directly or\nindirectly in any manner solicit, assist, or encourage (or assist any other person or entity in soliciting or encouraging) any other\nofficer or employee of Employer to work or otherwise provide services to Employee or to any entity in which Employee participates\nin the ownership, management, operation, or control of, or is connected with in any manner as an independent contractor, consultant,\nor otherwise.\n9. REA SO NABLENE SS OF TERMS. Employee acknowledges that compliance with the covenants contained herein upon\nseparation from employment with Employer shall not impair Employee' s ability to earn a livelihood. Employee further acknowledges\nthat the time and area restrictions contained herein are reasonable and not unduly burdensome.\n10. AT-W ILL EMPLOYMENT- TERMINATION. Employee understands that Employer is an at-will employment employer.\nThis means the employment relationship may be terminated by either party at any time and for any reason. This Agreement is not a\ncontract for employment for any specific length of time. Notwithstanding the foregoing, if either Employee or Employer desire to\nterminate the employment of Employee, each such party shall give at least 30 days notice to the other party prior to the effective date\nof such termination (except in the case of a termination by Employer for Cause (as defined in paragraph 11(c) below), in which case\nEmployer shall be permitted to terminate Employee' s employment immediately upon notice thereof).\n \n11. SEVERANCE.\na. Involuntary Termination without C ause. In the event that Employer terminates Employee' s employment without Cause,\nand provided that such termination of employment does not occur upon or within twelve (12) months after a Change in Control,\nEmployer shall pay Employee severance equal to six (6) months of Employee' s then current base salary, provided that such severance\nshall not exceed two times the lesser of (a) the Code § 401(a)(17) compensation limit for the year in which the Termination Date\noccurs, or (b) Employee' s annualized compensation based upon the annual rate of pay for services to Employer for the calendar year\nprior to the calendar year in which the Termination D ate occurs (adjusted for any increase during that year that was expected to\ncontinue indefinitely if the Employee had not separated from service). Payment of such severance will be conditioned on Employee' s\nexecution (and non-rescission) of a standard release of claims in the form provided by Employer at the time of such termination.\nSeverance will be paid to Employee over the six (6) month severance period commencing from and after the Termination Date, in\naccordance with Employer s normal payroll schedule. Severance payments shall be subject to normal payroll withholdings. The\nEmployer and Employee intend the severance payments under this paragraph 11(a) to be a ”separation pay plan due to involuntary\nseparation from service” under Treas. Reg. § 1.409A-1(b)(9)(iii).\nb. Involuntary Termination After Change in Control. In the event that Employer terminates Employee' s employment\nwithout Cause upon or within twelve (12) months\nafter a Change in Control, or in the event that Employee quits for Good Reason upon or within twelve (12) months after a Change in\nControl, Employer shall pay Employee severance equal to twelve months of Employee' 5 then current base salary, as follows:\n(i) Limitation on Payment Amount. Such severance shall not exceed a maximum amount of two times the lesser of (x) the\nCode § 401(a)(17) compensation limit for the year in which the Termination Date occurs, or (y) Employee' 5 annualized\ncompensation based upon the annual rate of pay for services to the Service Recipient for the calendar year prior to the calendar year\nin which the Termination Date occurs (adjusted for any increase during that year that was expected to continue indefinitely if the\nEmployee had not separated from service). Severance will be paid to Employee over the twelvemonth severance period commencing\nfrom and after the Termination Date, in accordance with Employer” 5 normal payroll schedule. Employer and Employee intend the\nseverance payments under this paragraph 11(b)(i) to be a ”separation pay plan due to involuntary separation from service” under\nTreas. Reg. § 1.409A-1(b)(9)(iii).\n(ii) Alternative Form of Payment. If the severance otherwise payable to Employee is reduced to zero (0) by application of\nthe maximum limitation under paragraph 11(b)(i)(y), then Employer shall in the alternative pay Employee severance equal to twelve\nmonths of Employee' 5 then-current base salary commencing from and after the Termination Date, in accordance with the normal\npayroll schedule of Employer, except that any amounts that remain payable as of the Short-Term D eferral Deadline shall be paid in a\nlump sum no later than the Short-Term Deferral Deadline. Employer and Employee intend the severance payments under this\nparagraph 11(b)(ii) to constitute a short-term deferral under Treas. Reg. § 1.409A-1(b)(4).\n(iii) Other Conditions. Payment of such severance under this paragraph 11(b) will be conditioned on Employee’s execution\n(and non-rescission) of a standard release of claims in the form provided by Employer at the time of such termination. If Employee’s\nemployment is terminated without Cause under conditions such that he/she is entitled to severance payments under this paragraph\n11(b), then Employee shall be entitled to severance payments only under this paragraph 11(b) and shall not be entitled to any\nseverance payments under paragraph 11(a) of this Agreement. Severance payments shall be subject to normal payroll withholdings.\n0. Definitions. For purposes of this Agreement, the following terms shall have the following meanings:\n(i) ”C ause” and ”Change in C ontrol" shall have the meanings ascribed to those terms as set forth in the SPS Commerce,\nInc. 2001 Stock Option Plan (the ”Stock Option Plan”), as amended.\n(ii) ”Employer" shall include any current or future successor, parent, subsidiary, affiliate or other joint venture partner to\nwhich any right or obligation has been assigned or delegated by SPS Commerce, Inc. or by operation of law.\n-5-\n(iii) ”G ood Reason" shall mean a material reduction in Employee' s then-current base salary at the time of the Change in\nControl or a material reduction in Employee' s employment responsibilities following such Change in Control, in each case without\nEmployee' s consent, provided that Employee first gives notice of the material reduction giving rise to Good Reason to the Employer\nwithin ninety (90) days of the first occurrence of the reduction, and provided further that upon giving notice Employee provides\nEmployer 30 days in which to remedy the reduction and not be required to pay the severance amount set forth in paragraph 11(b).\nNotwithstanding anything to the contrary in this paragraph 11(c), Employee shall not be deemed to have quit for Good Reason, and\nEmployee shall not be entitled to payments upon his/her resignation under this Agreement, unless Employee' s Termination Date\nfollowing his/her resignation for Good Reason occurs within two (2) years following the first occurrence of the reduction.\n(iv) ”Service Recipient" shall have the meaning set forth in Treas. Reg. § 1.409A-1(g).\n(v) ”Short-Term D eferral D eadline" shall mean the date that is the 15th day of the third month following the end of the later\nof the calendar year, or the Service Recipient’ s taxable year, in which the Termination D ate occurs.\n(vi) ”Termination D ate" shall mean the date upon which Employee' s termination of employment with Employer is\neffective. For purposes of paragraph 11 of this Agreement only, the Termination Date shall mean the date on which a ”separation\nfrom service” has occurred for purposes of Section 409A of the Code and the regulations and guidance thereunder.\n12. SURVIVAL OF OBLIGATIONS. All provisions of this Agreement relating to discoveries, confidential information, trade\nsecrets, competitive activities, and ownership of proprietary property, shall survive termination of the employment relationship\nbetween Employee and Employer.\n13. MODIFICATION OF AG REEMENT. No waiver or modification of this Agreement or of any covenant, condition, or\nlimitation herein contained shall be valid unless in writing and duly executed by both parties.\n14. CHOIC E OF LAW, |URISDICTION, AND VENUE. The validity, construction and performance of this Agreement shall\nbe governed by, and construed in accordance with, the laws of the State of Minnesota, without reference to any choice of laws\nprovisions thereof. The parties further agree that any litigation or proceeding arising out of, or relating to, this Agreement (whether\nthe same sounds in tort or contract or both) shall be commenced and maintained in a federal or state court located in Hennepin\nCounty, Minnesota, and for such purpose the parties consent to any such court' s exercise of personal jurisdiction over them.\n15. IN| UNCTIVE RELIEF — ATTORNEY’S FEES. In recognition of the irreparable harm that violation of this Agreement\ncould cause Employer, Employee agrees that, in addition to any relief afforded by law, an injunction against such violation or\nviolations may\nbe issued against Employee, it being understood by the parties that both damages and an injunction shall be proper modes of relief\nand not considered alternative remedies. In the event of any such violation(s), Employee agrees to pay the reasonable attorneys’ fees\nincurred by Employer in the enforcement of any of its rights with respect to said violation(s), in addition to the actual damages\nsustained by Employer as a result thereof.\n16. ASSIG NMENTS. This Agreement is personal in nature and cannot be assigned by Employee. The terms, conditions,\ncovenants, and representations herein shall inure to and be binding upon the heirs and representatives of Employee and shall inure to\nthe benefit of and shall be binding upon the successors and assigns of Employer.\n17. SEVERABIL ITY. Agreements and covenants contained herein are severable, and in the event any of them shall be held to be\ninvalid by any competent court, this Agreement shall be interpreted as if such invalid agreement or covenants were not contained\nherein.\n18. INTERPRETATION. This Agreement is intended to satisfy, or be exempt from, the requirements of Section 409A (a)(2), (3),\nand (4) of the Code, including current and future guidance and regulations interpreting such provisions, and should be interpreted\naccordingly.\n19. TAXES. Employer may withhold from any amounts payable under this Agreement such federal, state and local income and\nemployment taxes as Employer shall determine are required to be withheld pursuant to any applicable law or regulation. Employee\nshall be solely responsible for the payment of all taxes due and owing with respect to wages, benefits, and other compensation\nprovided to him/her hereunder.\n20. COMPLETE AG REEMENT. This Agreement and any stock option agreements between Employer and Employee contain\nthe complete agreement concerning the terms and conditions of the employment arrangement between the parties and shall, as of the\neffective date hereof, supersede all other agreements between the parties, including without limitation the Prior Agreement. The\nparties stipulate that neither of them has made any representation with respect to the subject matter of this A greement or any\nrepresentations including the execution and delivery hereof except such representations as are specifically set forth herein and the\nparties hereto acknowledge that they have relied on their own judgment in entering into this Agreement.\nSPS COMMERCE, INC.\nEMPLOYEE EMPLOYER\nBy: By:\nIts:\nDate: Date:	Exhibit 10.21\nAT-WILL CONFIDENTIALITY AGREEMENT\nREGARDING\nCERTAIN TERMS AND CONDITIONS\nOF EMPLOYMENT\nAT SPS COMMERCE, INC.\nTHIS AMENDED AND RESTATED AGREEMENT (the "Agreement") dated as of 2008 (the "Effective Date")\nis\nmade\nbetween\nMN (hereinafter referred to as "Employee") and SPS Commerce, Inc., a Delaware corporation\nwith offices at 333 South Seventh Street, Suite 1000, Minneapolis, Minnesota 55402 (hereinafter referred to as "Employer");\nWHEREAS, Employer is engaged in the business of developing, marketing and distributing computer software products and\nservices;\nWHEREAS, Employee has knowledge and experience in the above-designated business;\nWHEREAS, Employee and Employer are parties to an At-Will Confidentiality greement Regarding Certain Terms and\nConditions of Employment at SPS Commerce, Inc., dated (the "Prior Agreement"), which the parties desire to amend and\nrestate in its entirety with this Agreement;\nWHEREAS, Employer and Employee desire to amend, modify, and restate the Prior A greement to comply with the requirements\nof Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), and with the intent to exclude amounts payable as\nseverance from deferred compensation under Code Section 409A and\nWHEREAS, Employee acknowledges the receipt of good and valuable consideration from Employer in support of the Prior\nA greement, and Employee further acknowledges and agrees that such consideration shall, together with the benefits hereunder,\nsupport the restatement of his/her obligations in this Agreement.\nFor the reasons set forth above, and in consideration of the mutual promises and agreements hereinafter set forth, Employer and\nEmployee agree as follows:\n1. EMPLOYMENT Employee shall serve as\nsubject to the general supervision and pursuant to the order, advice, and\ndirection of Employer. Employee shall perform such duties as are customarily performed by one holding such position in other, same,\nor similar businesses or enterprises as that engaged in by Employer, and shall also additionally render such other and unrelated\nservices and duties as may reasonably be assigned to him/her from time to time by Employer.\n2. BEST EFFORTS OF EMPLOYEE. Employee agrees that he/she will at all times faithfully, industriously, and to the best of\nhis/her ability, experience and talents, perform all of the duties that may be required of and from his/her pursuant to the express and\nimplicit terms hereof, to the reasonable satisfaction of Employer.\n-1-\n3.\nOTHER EMPLOYMENT. Employee shall devote all of his/her time, attention, knowledge, and skills solely to the business\nand interest of Employer.\n4. CONFIDENTIALITY AND TRADE SECRETS. Employee will not disclose, use, reveal, disseminate or transfer any\nconfidential information acquired by Employee to any outside party, except as directly required in the performance of Employee's\nduties for Employer or as required by law. Confidential information includes, but is not limited to, information regarding Employer's\nproducts, processes, services, research, development, inventions, computer media, operations, manufacture, purchasing, accounting,\nfinancial data, engineering, sales, marketing, merchandising, selling, payroll, customer lists, credit classification, record, statistics,\ncontracts and suppliers which was obtained by Employee while employed by Employer or as a consequence of such employment\nwith Employer and not generally known. The foregoing is all deemed as confidential information and/or a trade secret, whether or not\nsuch information is clearly marked as "Confidential" or as a "Trade Secret", the parties hereto stipulating that as between them the\nsame are important, material, confidential and constitute trade secrets, and as such gravely affect the effective and successful conduct\nof Employer's business and goodwill. Confidential information also includes similar information belonging to Employer's customers\nwhich Employee may gain access to in rendering services to any such customer on behalf of Employer.\n5. DISCLOSURE AND ASSIGNMENT. Employee agrees that all trade secrets, all inventions and patents, except those\nexcluded from any obligation to assign to Employer as a matter of law by any applicable state statute existing at the time such\ninvention was made, all works of authorship (including, but not limited to, illustrations, writing, mask works, software and computer\nprograms, and other programming documentation) and all other business or technical information created, prepared or conceived by\nEmployee, either alone or with others, while employed by Employer and related to the existing or contemplated business or research\nof\nEmployer, or resulting from Employee's work with Employer or from Employee's knowledge of any proprietary, technical or\nbusiness information possessed or owned by Employer under paragraph 4 above, belongs to Employer. All such works of authorship\nshall be works made for hire. Until proven otherwise, any invention shall be presumed to have been conceived during such\nemployment if, within one (1) year after termination of such employment, it is disclosed to others, completed, or it has a copyright\nnotice affixed thereto or a patent application filed thereon.\nEmployee will promptly disclose to Employer all trade secrets, inventions, works of authorship, and information which belong\nto\nEmployer as set forth herein; and Employee will assign to Employer, or to others as directed by Employer, all of Employee's interest\nin such inventions and works of authorship, and will execute any papers and do any acts which Employer may consider necessary to\nsecure to it any and all rights relating to such inventions and works of authorship, including all patents and copyrights (and renewals\nthereof) in any country.\nPursuant to Minnesota Statute 181.78, Subd 1, the assignment provisions of this paragraph shall not apply to any ideas,\ndiscoveries, inventions or improvement for which no equipment, supplies, facility or trade secret information of the Employer was\nused, and which was developed entirely on Employee's own time, and (1) which does not relate (a) directly to the\n-2-\nbusiness of the Employer or (b) to the Employer's actual or demonstrably anticipated research or development; or (2) which does not\nresult from any work performed by Employee for the Employer.\n6. ASSISTANCE TO EMPLOYER. Employee shall give Employer, at Employer's expense, all assistance Employer reasonably\nrequires to perfect, protect, and exercise the rights to all ideas, discoveries, inventions or improvements acquired by Employer\npursuant to the assignment provisions of paragraph 5 of this Agreement.\n7. RETURN OF DOCUMENTS. All documents or other property relating in any way to the business of Employer which are\nconceived or generated by Employee or come into Employee's possession during Employee's employment shall be and remain\nEmployer's\nexclusive property. Employee will, upon termination of employment, leave with or deliver to Employer's possession\nall\ncopies of documents, records, notes, books, directories, telephone and/or address listings, computer media, and similar repositories\ncontaining any confidential information whether prepared or maintained by Employee or another.\n8. NON-COMPETITION AND NON-SOLICITATION During the term of employment with Employer and for one (1) year\nthereafter, Employee will not act as a Competing Person or Organization, act as an employee, owner, partner, consultant, or agent of\nany Competing Person or Organization or render any services, directly or indirectly, to any Competing Person or Organization.\n"Competing Person or Organization" includes any person or organization engaged in, or about to become engaged in, research,\ndevelopment, production, marketing or selling of any product, process or service in which the Employee was involved in any\ncapacity, or about which Employee obtained confidential information while employed by Employer. Competing Person or\nOrganization does not include:\n(A)\nA person or organization involved solely in a business substantially different from those in which Employee was engaged, and\nabout which Employee obtained no confidential information while employed by Employer; or\nA person or organization involved in a business similar to that in which Employee was engaged while employed by Employer\nor\n(B)\nbut which markets and sells exclusively to persons or organizations: (i) which have not purchased any product, process\nservice from Employer within two (2) years prior to Employee's separation from employment; and (ii) about which Employee\nobtained no confidential information while employed by Employer.\nDuring the term of employment with Employer and for one (1) year thereafter, Employee will not individually or in combination\nwith any Competing Person or Organization, market, produce, solicit orders, sell, deliver, create or provide any product, process, or\nservice\nwhich resembles or competes with a product, process or service with which Employee was involved in any capacity while\nemployed by Employer to any person or organization that was a customer or identified prospect of Employer within the two (2) year\nperiod prior to the date of Employee's\n-3-\nseparation from employment or was contacted by the Employee within two (2) years prior to the date of Employee's separation from\nemployment.\nEmployee further agrees that during the term of employment and for one (1) year thereafter, Employee shall not directly or\nindirectly in any manner solicit, assist, or encourage (or assist any other person or entity in soliciting or encouraging) any other\nofficer or employee of Employer to work or otherwise provide services to Employee or to any entity in which Employee participates\nin the ownership, management, operation, or control of, or is connected with in any manner as an independent contractor, consultant,\nor otherwise.\n9. REASONABLENESS OF TERMS. Employee acknowledges that compliance with the covenants contained herein upon\nseparation from employment with Employer shall not impair Employee's ability to earn a livelihood. Employee further acknowledges\nthat the time and area restrictions contained herein are reasonable and not unduly burdensome.\n10. AT-WILL EMPLOYMENT; TERMINATION. Employee understands that Employer is an at-will employment employer.\nThis\nmeans\nthe\nemployment\nrelationship\nmay\nbe\nterminated\nby\neither\nparty\nat\nany\ntime\nand\nfor\nany\nreason.\nThis\nA\ngreement\nis\nnot\na\ncontract for employment for any specific length of time. Notwithstanding the foregoing, if either Employee or Employer desire to\nterminate the employment of Employee, each such party shall give at least 30 days notice to the other party prior to the effective date\nof such termination (except in the case of a termination by Employer for Cause (as defined in paragraph 11(c) below), in which case\nEmployer shall be permitted to terminate Employee's employment immediately upon notice thereof).\n11. SEVERANCE.\na. Involuntary Termination without Cause. In the event that Employer terminates Employee's employment without Cause,\nand provided that such termination of employment does not occur upon or within twelve (12) months after a Change in Control,\nEmployer shall pay Employee severance equal to six (6) months of Employee's then current base salary, provided that such severance\nshall not exceed two times the lesser of (a) the Code S 401(a)(17 compensation limit for the year in which the Termination ate\noccurs, or (b) Employee's annualized compensation based upon the annual rate of pay for services to Employer for the calendar year\nprior to the calendar year in which the Termination Date occurs (adjusted for any increase during that year that was expected to\ncontinue indefinitely if the Employee had not separated from service) Payment of such severance will be conditioned on Employee's\nexecution (and non-rescission) of a standard release of claims in the form provided by Employer at the time of such termination.\nSeverance will be paid to Employee over the six (6) month severance period commencing from and after the Termination Date, in\naccordance with Employer's normal payroll schedule. Severance payments shall be subject to normal payroll withholdings. The\nEmployer and Employee intend the severance payments under this paragraph 11(a) to be a "separation pay plan due to involuntary\nseparation from service" under Treas. Reg. S 1.409A-1(b)(9)(iii).\nb. Involuntary Termination After Change in Control. In the event that Employer terminates Employee's employment\nwithout Cause upon or within twelve (12) months\n-4-\nafter a Change in Control, or in the event that Employee quits for Good Reason upon or within twelve (12) months after a Change in\nControl, Employer shall pay Employee severance equal to twelve months of Employee's then current base salary, as follows:\n(i) Limitation on Payment mount. Such severance shall not exceed a maximum amount of two times the lesser of (x) the\nCode S 401(a)(17) compensation limit for the year in which the Termination Date occurs, or (y) Employee's annualized\ncompensation based upon the annual rate of pay for services to the Service Recipient for the calendar year prior to the calendar year\nin which the Termination Date occurs (adjusted for any increase during that year that was expected to continue indefinitely if the\nEmployee had not separated from service) Severance will be paid to Employee over the twelve-month severance period commencing\nfrom and after the Termination Date, in accordance with Employer's normal payroll schedule. Employer and Employee intend the\nseverance payments under this paragraph 11(b)(i) to be a "separation pay plan due to involuntary separation from service" under\nTreas. Reg. S 1.409A-1(b)(9)(iii).\n(ii) Alternative Form of Payment. If the severance otherwise payable to Employee is reduced to zero (0) by application of\nthe maximum limitation under paragraph 11(b)(i)(y), then Employer shall in the alternative pay Employee severance equal to twelve\nmonths of Employee's then-current base salary commencing from and after the Termination Date, in accordance with the normal\npayroll schedule of Employer, except that any amounts that remain payable as of the Short-Term Deferral Deadline shall be paid in a\nlump sum no later than the Short-Term Deferral Deadline. Employer and Employee intend the severance payments under this\nparagraph 11(b)(ii) to constitute a short-term deferral under Treas. Reg. S 1.409A-1(b)(4).\n(iii) Other Conditions Payment of such severance under this paragraph 11(b) will be conditioned on Employee's execution\n(and non-rescission) of a standard release of claims in the form provided by Employer at the time of such termination. If Employee's\nemployment is terminated without Cause under conditions such that he/she is entitled to severance payments under this paragraph\n11(b), then Employee shall be entitled to severance payments only under this paragraph 11(b) and shall not be entitled to any\nseverance payments under paragraph 11(a) of this Agreement. Severance payments shall be subject to normal payroll withholdings.\nc. Definitions. For purposes of this greement, the following terms shall have the following meanings:\n(i) "Cause" and "Change in Control" shall have the meanings ascribed to those terms as set forth in the SPS Commerce\nInc. 2001 Stock Option Plan (the "Stock Option Plan"), as amended.\n(ii) "Employer" shall include any current or future successor, parent, subsidiary, affiliate or other joint venture partner to\nwhich any right or obligation has been assigned or delegated by SPS Commerce, Inc. or by operation of law.\n-5-\n(iii) "G ood Reason" shall mean a material reduction in Employee's then-current base salary at the time of the Change in\nControl or a material reduction in Employee's employment responsibilities following such Change in Control, in each case without\nEmployee's consent, provided that Employee first gives notice of the material reduction giving rise to Good Reason to the Employer\nwithin ninety (90) days of the first occurrence of the reduction, and provided further that upon giving notice Employee provides\nEmployer 30 days in which to remedy the reduction and not be required to pay the severance amount set forth in paragraph 11(b).\nNotwithstanding anything to the contrary in this paragraph 11(c), Employee shall not be deemed to have quit for Good Reason, and\nEmployee shall not be entitled to payments upon his/her resignation under this A greement, unless Employee's Termination Date\nfollowing his/her resignation for Good Reason occurs within two (2) years following the first occurrence of the reduction.\n(iv) "Service Recipient" shall have the meaning set forth in Treas. Reg. S 1.409A-1(g)\n(v) "Short-Term Deferral Deadline" shall mean the date that is the 15th day of the third month following the end of the later\nof the calendar year, or the Service Recipient's taxable year, in which the Termination ate occurs.\n(vi) "Termination Date" shall mean the date upon which Employee's termination of employment with Employer is\neffective. For purposes of paragraph 11 of this Agreement only, the Termination Date shall mean the date on which a "separation\nfrom service" has occurred for purposes of Section 409A of the Code and the regulations and guidance thereunder.\n12. SURVIVAL OF OBLIGATIONS. All provisions of this Agreement relating to discoveries, confidential information trade\nsecrets, competitive activities, and ownership of proprietary property, shall survive termination of the employment relationship\nbetween Employee and Employer.\n13. MODIFICATION OF AGREEMENT. No waiver or modification of this Agreement or of any covenant, condition, or\nlimitation herein contained shall be valid unless in writing and duly executed by both parties.\n14. CHOICE OF LAW, JURISDICTION, AND VENUE. The validity, construction and performance of this A greement shall\nbe governed by, and construed in accordance with, the laws of the State of Minnesota, without reference to any choice of laws\nprovisions thereof. The parties further agree that any litigation or proceeding arising out of, or relating to, this A greement (whether\nthe same sounds in tort or contract or both) shall be commenced and maintained in a federal or state court located in Hennepin\nCounty, Minnesota, and for such purpose the parties consent to any such court's exercise of personal jurisdiction over them.\n15. INJUNCTIVE RELIEF ATTORNEY'S FEES. In recognition of the irreparable harm that violation of this greement\ncould cause Employer, Employee agrees that, in addition to any relief afforded by law, an injunction against such violation or\nviolations may\n-6-\nbe issued against Employee, it being understood by the parties that both damages and an injunction shall be proper modes of relief\nand not considered alternative remedies. In the event of any such violation(s), Employee agrees to pay the reasonable attorneys' fees\nincurred by Employer in the enforcement of any of its rights with respect to said violation(s), in addition to the actual damages\nsustained by Employer as a result thereof.\n16. ASSIGNMENTS. This A greement is personal in nature and cannot be assigned by Employee. The terms, conditions,\ncovenants, and representations herein shall inure to and be binding upon the heirs and representatives of Employee and shall inure to\nthe benefit of and shall be binding upon the successors and assigns of Employer.\n17. SEVERABILITY. A greements and covenants contained herein are severable, and in the event any of them shall be held to be\ninvalid by any competent court, this A greement shall be interpreted as if such invalid agreement or covenants were not contained\nherein.\n18. INTERPRETATION. This greement is intended to satisfy, or be exempt from, the requirements of Section 409A( 09A(a)(2), (3),\nand (4) of the Code, including current and future guidance and regulations interpreting such provisions, and should be interpreted\naccordingly.\n19. TAXES. Employer may withhold from any amounts payable under this A greement such federal, state and local income and\nemployment taxes as Employer shall determine are required to be withheld pursuant to any applicable law or regulation. Employee\nshall be solely responsible for the payment of all taxes due and owing with respect to wages, benefits, and other compensation\nprovided to him/her hereunder.\n20. COMPLETE AGREEMENT This Agreement and any stock option agreements between Employer and Employee contain\nthe complete agreement concerning the terms and conditions of the employment arrangement between the parties and shall, as of the\neffective date hereof, supersede all other agreements between the parties, including without limitation the Prior A greement. The\nparties stipulate that neither of them has made any representation with respect to the subject matter of this A greement or any\nrepresentations including the execution and delivery hereof except such representations as are specifically set forth herein and the\nparties hereto acknowledge that they have relied on their own judgment in entering into this A greement.\nSPS COMMERCE, INC.\nEMPLOYEE\nEMPLOYER\nBy:\nBy:\nIts:\nDate:\nDate:\n-7-	Exhibit 10.21\nAT-WILL CONFIDENTIALITY AGREEMENT\nREGARDING\nCERTAIN TERMS AND CONDITIONS\nOF EMPLOYMENT\nAT SPS COMMERCE, INC.\nTHIS AMENDED AND RESTATED AGREEMENT (the “Agreement”) dated as of , 2008 (the “Effective Date”) is made\nbetween\n,\n,\n, MN (hereinafter referred to as “Employee”) and SPS Commerce, Inc., a Delaware corporation,\nwith offices at 333 South Seventh Street, Suite 1000, Minneapolis, Minnesota 55402 (hereinafter referred to as “Employer”);\nWHEREAS, Employer is engaged in the business of developing, marketing and distributing computer software products and\nservices;\nWHEREAS, Employee has knowledge and experience in the above-designated business;\nWHEREAS, Employee and Employer are parties to an At-Will Confidentiality Agreement Regarding Certain Terms and\nConditions of Employment at SPS Commerce, Inc., dated\n(the “Prior Agreement”), which the parties desire to amend and\nrestate in its entirety with this Agreement;\nWHEREAS, Employer and Employee desire to amend, modify, and restate the Prior Agreement to comply with the requirements\nof Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and with the intent to exclude amounts payable as\nseverance from deferred compensation under Code Section 409A(a)(1); and\nWHEREAS, Employee acknowledges the receipt of good and valuable consideration from Employer in support of the Prior\nAgreement, and Employee further acknowledges and agrees that such consideration shall, together with the benefits hereunder,\nsupport the restatement of his/her obligations in this Agreement.\nFor the reasons set forth above, and in consideration of the mutual promises and agreements hereinafter set forth, Employer and\nEmployee agree as follows:\n1. EMPLOYMENT. Employee shall serve as\n, subject to the general supervision and pursuant to the order, advice, and\ndirection of Employer. Employee shall perform such duties as are customarily performed by one holding such position in other, same,\nor similar businesses or enterprises as that engaged in by Employer, and shall also additionally render such other and unrelated\nservices and duties as may reasonably be assigned to him/her from time to time by Employer.\n2. BEST EFFORTS OF EMPLOYEE. Employee agrees that he/she will at all times faithfully, industriously, and to the best of\nhis/her ability, experience and talents, perform all of the duties that may be required of and from his/her pursuant to the express and\nimplicit terms hereof, to the reasonable satisfaction of Employer.\n-1-\n3. OTHER EMPLOYMENT. Employee shall devote all of his/her time, attention, knowledge, and skills solely to the business\nand interest of Employer.\n4. CONFIDENTIALITY AND TRADE SECRETS. Employee will not disclose, use, reveal, disseminate or transfer any\nconfidential information acquired by Employee to any outside party, except as directly required in the performance of Employee’s\nduties for Employer or as required by law. Confidential information includes, but is not limited to, information regarding Employer’s\nproducts, processes, services, research, development, inventions, computer media, operations, manufacture, purchasing, accounting,\nfinancial data, engineering, sales, marketing, merchandising, selling, payroll, customer lists, credit classification, record, statistics,\ncontracts and suppliers which was obtained by Employee while employed by Employer or as a consequence of such employment\nwith Employer and not generally known. The foregoing is all deemed as confidential information and/or a trade secret, whether or not\nsuch information is clearly marked as “Confidential” or as a “Trade Secret”, the parties hereto stipulating that as between them the\nsame are important, material, confidential and constitute trade secrets, and as such gravely affect the effective and successful conduct\nof Employer’s business and goodwill. Confidential information also includes similar information belonging to Employer’s customers\nwhich Employee may gain access to in rendering services to any such customer on behalf of Employer.\n5. DISCLOSURE AND ASSIGNMENT. Employee agrees that all trade secrets, all inventions and patents, except those\nexcluded from any obligation to assign to Employer as a matter of law by any applicable state statute existing at the time such\ninvention was made, all works of authorship (including, but not limited to, illustrations, writing, mask works, software and computer\nprograms, and other programming documentation) and all other business or technical information created, prepared or conceived by\nEmployee, either alone or with others, while employed by Employer and related to the existing or contemplated business or research\nof Employer, or resulting from Employee’s work with Employer or from Employee’s knowledge of any proprietary, technical or\nbusiness information possessed or owned by Employer under paragraph 4 above, belongs to Employer. All such works of authorship\nshall be works made for hire. Until proven otherwise, any invention shall be presumed to have been conceived during such\nemployment if, within one (1) year after termination of such employment, it is disclosed to others, completed, or it has a copyright\nnotice affixed thereto or a patent application filed thereon.\nEmployee will promptly disclose to Employer all trade secrets, inventions, works of authorship, and information which belong to\nEmployer as set forth herein; and Employee will assign to Employer, or to others as directed by Employer, all of Employee’s interest\nin such inventions and works of authorship, and will execute any papers and do any acts which Employer may consider necessary to\nsecure to it any and all rights relating to such inventions and works of authorship, including all patents and copyrights (and renewals\nthereof) in any country.\nPursuant to Minnesota Statute 181.78, Subd. 1, the assignment provisions of this paragraph shall not apply to any ideas,\ndiscoveries, inventions or improvement for which no equipment, supplies, facility or trade secret information of the Employer was\nused, and which was developed entirely on Employee’s own time, and (1) which does not relate (a) directly to the\n-2-\nbusiness of the Employer or (b) to the Employer’s actual or demonstrably anticipated research or development; or (2) which does not\nresult from any work performed by Employee for the Employer.\n6. ASSISTANCE TO EMPLOYER. Employee shall give Employer, at Employer’s expense, all assistance Employer reasonably\nrequires to perfect, protect, and exercise the rights to all ideas, discoveries, inventions or improvements acquired by Employer\npursuant to the assignment provisions of paragraph 5 of this Agreement.\n7. RETURN OF DOCUMENTS. All documents or other property relating in any way to the business of Employer which are\nconceived or generated by Employee or come into Employee’s possession during Employee’s employment shall be and remain\nEmployer’s exclusive property. Employee will, upon termination of employment, leave with or deliver to Employer’s possession all\ncopies of documents, records, notes, books, directories, telephone and/or address listings, computer media, and similar repositories\ncontaining any confidential information whether prepared or maintained by Employee or another.\n8. NON-COMPETITION AND NON-SOLICITATION. During the term of employment with Employer and for one (1) year\nthereafter, Employee will not act as a Competing Person or Organization, act as an employee, owner, partner, consultant, or agent of\nany Competing Person or Organization or render any services, directly or indirectly, to any Competing Person or Organization.\n“Competing Person or Organization” includes any person or organization engaged in, or about to become engaged in, research,\ndevelopment, production, marketing or selling of any product, process or service in which the Employee was involved in any\ncapacity, or about which Employee obtained confidential information while employed by Employer. Competing Person or\nOrganization does not include:\n(A)\nA person or organization involved solely in a business substantially different from those in which Employee was engaged, and\nabout which Employee obtained no confidential information while employed by Employer; or\n(B)\nA person or organization involved in a business similar to that in which Employee was engaged while employed by Employer\nbut which markets and sells exclusively to persons or organizations: (i) which have not purchased any product, process or\nservice from Employer within two (2) years prior to Employee’s separation from employment; and (ii) about which Employee\nobtained no confidential information while employed by Employer.\nDuring the term of employment with Employer and for one (1) year thereafter, Employee will not, individually or in combination\nwith any Competing Person or Organization, market, produce, solicit orders, sell, deliver, create or provide any product, process, or\nservice which resembles or competes with a product, process or service with which Employee was involved in any capacity while\nemployed by Employer to any person or organization that was a customer or identified prospect of Employer within the two (2) year\nperiod prior to the date of Employee’s\n-3-\nseparation from employment or was contacted by the Employee within two (2) years prior to the date of Employee’s separation from\nemployment.\nEmployee further agrees that during the term of employment and for one (1) year thereafter, Employee shall not directly or\nindirectly in any manner solicit, assist, or encourage (or assist any other person or entity in soliciting or encouraging) any other\nofficer or employee of Employer to work or otherwise provide services to Employee or to any entity in which Employee participates\nin the ownership, management, operation, or control of, or is connected with in any manner as an independent contractor, consultant,\nor otherwise.\n9. REASONABLENESS OF TERMS. Employee acknowledges that compliance with the covenants contained herein upon\nseparation from employment with Employer shall not impair Employee’s ability to earn a livelihood. Employee further acknowledges\nthat the time and area restrictions contained herein are reasonable and not unduly burdensome.\n10. AT -WILL EMPLOYMENT; TERMINATION. Employee understands that Employer is an at-will employment employer.\nThis means the employment relationship may be terminated by either party at any time and for any reason. This Agreement is not a\ncontract for employment for any specific length of time. Notwithstanding the foregoing, if either Employee or Employer desire to\nterminate the employment of Employee, each such party shall give at least 30 days notice to the other party prior to the effective date\nof such termination (except in the case of a termination by Employer for Cause (as defined in paragraph 11(c) below), in which case\nEmployer shall be permitted to terminate Employee’s employment immediately upon notice thereof).\n11. SEVERANCE.\na. Involuntary Termination without Cause. In the event that Employer terminates Employee’s employment without Cause,\nand provided that such termination of employment does not occur upon or within twelve (12) months after a Change in Control,\nEmployer shall pay Employee severance equal to six (6) months of Employee’s then current base salary, provided that such severance\nshall not exceed two times the lesser of (a) the Code § 401(a)(17) compensation limit for the year in which the Termination Date\noccurs, or (b) Employee’s annualized compensation based upon the annual rate of pay for services to Employer for the calendar year\nprior to the calendar year in which the Termination Date occurs (adjusted for any increase during that year that was expected to\ncontinue indefinitely if the Employee had not separated from service). Payment of such severance will be conditioned on Employee’s\nexecution (and non-rescission) of a standard release of claims in the form provided by Employer at the time of such termination.\nSeverance will be paid to Employee over the six (6) month severance period commencing from and after the Termination Date, in\naccordance with Employer’s normal payroll schedule. Severance payments shall be subject to normal payroll withholdings. The\nEmployer and Employee intend the severance payments under this paragraph 11(a) to be a “separation pay plan due to involuntary\nseparation from service” under Treas. Reg. § 1.409A-1(b)(9)(iii).\nb. Involuntary Termination After Change in Control. In the event that Employer terminates Employee’s employment\nwithout Cause upon or within twelve (12) months\n-4-\nafter a Change in Control, or in the event that Employee quits for Good Reason upon or within twelve (12) months after a Change in\nControl, Employer shall pay Employee severance equal to twelve months of Employee’s then current base salary, as follows:\n(i) Limitation on Payment Amount. Such severance shall not exceed a maximum amount of two times the lesser of (x) the\nCode § 401(a)(17) compensation limit for the year in which the Termination Date occurs, or (y) Employee’s annualized\ncompensation based upon the annual rate of pay for services to the Service Recipient for the calendar year prior to the calendar year\nin which the Termination Date occurs (adjusted for any increase during that year that was expected to continue indefinitely if the\nEmployee had not separated from service). Severance will be paid to Employee over the twelve-month severance period commencing\nfrom and after the Termination Date, in accordance with Employer’s normal payroll schedule. Employer and Employee intend the\nseverance payments under this paragraph 11(b)(i) to be a “separation pay plan due to involuntary separation from service” under\nTreas. Reg. § 1.409A-1(b)(9)(iii).\n(ii) Alternative Form of Payment. If the severance otherwise payable to Employee is reduced to zero (0) by application of\nthe maximum limitation under paragraph 11(b)(i)(y), then Employer shall in the alternative pay Employee severance equal to twelve\nmonths of Employee’s then-current base salary commencing from and after the Termination Date, in accordance with the normal\npayroll schedule of Employer, except that any amounts that remain payable as of the Short-Term Deferral Deadline shall be paid in a\nlump sum no later than the Short-Term Deferral Deadline. Employer and Employee intend the severance payments under this\nparagraph 11(b)(ii) to constitute a short-term deferral under Treas. Reg. § 1.409A-1(b)(4).\n(iii) Other Conditions. Payment of such severance under this paragraph 11(b) will be conditioned on Employee’s execution\n(and non-rescission) of a standard release of claims in the form provided by Employer at the time of such termination. If Employee’s\nemployment is terminated without Cause under conditions such that he/she is entitled to severance payments under this paragraph\n11(b), then Employee shall be entitled to severance payments only under this paragraph 11(b) and shall not be entitled to any\nseverance payments under paragraph 11(a) of this Agreement. Severance payments shall be subject to normal payroll withholdings.\nc. Definitions. For purposes of this Agreement, the following terms shall have the following meanings:\n(i) “Cause” and “Change in Control” shall have the meanings ascribed to those terms as set forth in the SPS Commerce,\nInc. 2001 Stock Option Plan (the “Stock Option Plan”), as amended.\n(ii) “Employer” shall include any current or future successor, parent, subsidiary, affiliate or other joint venture partner to\nwhich any right or obligation has been assigned or delegated by SPS Commerce, Inc. or by operation of law.\n-5-\n(iii) “Good Reason” shall mean a material reduction in Employee’s then-current base salary at the time of the Change in\nControl or a material reduction in Employee’s employment responsibilities following such Change in Control, in each case without\nEmployee’s consent, provided that Employee first gives notice of the material reduction giving rise to Good Reason to the Employer\nwithin ninety (90) days of the first occurrence of the reduction, and provided further that upon giving notice Employee provides\nEmployer 30 days in which to remedy the reduction and not be required to pay the severance amount set forth in paragraph 11(b).\nNotwithstanding anything to the contrary in this paragraph 11(c), Employee shall not be deemed to have quit for Good Reason, and\nEmployee shall not be entitled to payments upon his/her resignation under this Agreement, unless Employee’s Termination Date\nfollowing his/her resignation for Good Reason occurs within two (2) years following the first occurrence of the reduction.\n(iv) “Service Recipient” shall have the meaning set forth in Treas. Reg. § 1.409A-1(g).\n(v) “Short-Term Deferral Deadline” shall mean the date that is the 15th day of the third month following the end of the later\nof the calendar year, or the Service Recipient’s taxable year, in which the Termination Date occurs.\n(vi) “Termination Date” shall mean the date upon which Employee’s termination of employment with Employer is\neffective. For purposes of paragraph 11 of this Agreement only, the Termination Date shall mean the date on which a “separation\nfrom service” has occurred for purposes of Section 409A of the Code and the regulations and guidance thereunder.\n12. SURVIVAL OF OBLIGATIONS. All provisions of this Agreement relating to discoveries, confidential information, trade\nsecrets, competitive activities, and ownership of proprietary property, shall survive termination of the employment relationship\nbetween Employee and Employer.\n13. MODIFICATION OF AGREEMENT. No waiver or modification of this Agreement or of any covenant, condition, or\nlimitation herein contained shall be valid unless in writing and duly executed by both parties.\n14. CHOICE OF LAW, JURISDICTION, AND VENUE. The validity, construction and performance of this Agreement shall\nbe governed by, and construed in accordance with, the laws of the State of Minnesota, without reference to any choice of laws\nprovisions thereof. The parties further agree that any litigation or proceeding arising out of, or relating to, this Agreement (whether\nthe same sounds in tort or contract or both) shall be commenced and maintained in a federal or state court located in Hennepin\nCounty, Minnesota, and for such purpose the parties consent to any such court’s exercise of personal jurisdiction over them.\n15. INJUNCTIVE RELIEF — ATTORNEY’S FEES. In recognition of the irreparable harm that violation of this Agreement\ncould cause Employer, Employee agrees that, in addition to any relief afforded by law, an injunction against such violation or\nviolations may\n-6-\nbe issued against Employee, it being understood by the parties that both damages and an injunction shall be proper modes of relief\nand not considered alternative remedies. In the event of any such violation(s), Employee agrees to pay the reasonable attorneys’ fees\nincurred by Employer in the enforcement of any of its rights with respect to said violation(s), in addition to the actual damages\nsustained by Employer as a result thereof.\n16. ASSIGNMENTS. This Agreement is personal in nature and cannot be assigned by Employee. The terms, conditions,\ncovenants, and representations herein shall inure to and be binding upon the heirs and representatives of Employee and shall inure to\nthe benefit of and shall be binding upon the successors and assigns of Employer.\n17. SEVERABILITY. Agreements and covenants contained herein are severable, and in the event any of them shall be held to be\ninvalid by any competent court, this Agreement shall be interpreted as if such invalid agreement or covenants were not contained\nherein.\n18. INTERPRETATION. This Agreement is intended to satisfy, or be exempt from, the requirements of Section 409A(a)(2), (3),\nand (4) of the Code, including current and future guidance and regulations interpreting such provisions, and should be interpreted\naccordingly.\n19. TAXES. Employer may withhold from any amounts payable under this Agreement such federal, state and local income and\nemployment taxes as Employer shall determine are required to be withheld pursuant to any applicable law or regulation. Employee\nshall be solely responsible for the payment of all taxes due and owing with respect to wages, benefits, and other compensation\nprovided to him/her hereunder.\n20. COMPLETE AGREEMENT. This Agreement and any stock option agreements between Employer and Employee contain\nthe complete agreement concerning the terms and conditions of the employment arrangement between the parties and shall, as of the\neffective date hereof, supersede all other agreements between the parties, including without limitation the Prior Agreement. The\nparties stipulate that neither of them has made any representation with respect to the subject matter of this Agreement or any\nrepresentations including the execution and delivery hereof except such representations as are specifically set forth herein and the\nparties hereto acknowledge that they have relied on their own judgment in entering into this Agreement.\nSPS COMMERCE, INC.\nEMPLOYEE\nEMPLOYER\nBy:\nBy:\nIts:\nDate:\nDate:\n-7-
c0386cee910f8b8a7c2679297e5dfedf.pdf	effective_date jurisdiction party term	EX-4.5 2 dex45.htm EMPLOYMENT AND CONFIDENTIALITY AGREEMENT\nExhibit 4.5\nCTRIP.COM INTERNATIONAL, LTD.\nEMPLOYMENT AND CONFIDENTIALITY AGREEMENT\nEMPLOYMENT AND CONFIDENTIALITY AGREEMENT\nThis Employment and Confidentiality Agreement (the “Agreement”) is made as of this 1st December day of 2005 (“Effective Date”) by and\nbetween Ctrip.com International, Ltd. (the “Company”) and Ms. Jie Sun (the “Employee”).\n(The Company and the Employee are hereinafter referred to individually as a “Party” and collectively as the “Parties”.)\nWHEREAS, the Company desires to engage the services of Employee and the Employee desires to perform such services upon the terms and\nconditions set forth below.\nNOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements hereafter set forth, the Parties agree as follows:\nARTICLE 1 APPOINTMENT\n1.1 Subject to the terms and conditions herein, the Company agrees to employ Employee and cause its subsidiary Ctrip Computer Technology\n(Shanghai) Limited (“Ctrip Shanghai”) to employ Employee as the Chief Financial Officer of the Company and Ctrip Shanghai, and Employee\nagrees to serve the Company and Ctrip Shanghai in such capacity, and/or in such other capacity as the Company and the Employee may from\ntime to time agree upon, on the terms set out in this Agreement (“Appointment”).\nARTICLE 2 DUTIES\n2.1 The Employee shall be responsible for financial management of the Company and Ctrip Shanghai in accordance with this Agreement, the\nMemorandum and Articles of Association of the Company (the “Articles of Association”), and the guidelines, policies and procedures of the\nCompany approved from time to time by the Board.\n2.2 The Employee shall use his best endeavor to perform Employee’s duties hereunder and hereby agrees that Employee shall not, without the\nprior written consent of the Board, become an employee of any entity other than the Company and shall not be concerned or interested in any\nother business directly competitive with that carried on by the Company, provided that nothing in this clause shall preclude the Employee from\nholding or being otherwise interested in any shares or other securities of any company any part of those share capital is listed or dealt in on any\nstock exchange or recognized securities market anywhere and the Employee should notifies the Company in writing of his interest in such\nshares or securities in a timely manner and with such details and particulars as the Company may reasonably require.\n2\nARTICLE 3 REMUNERATION\n3.1 In consideration for the services rendered by the Employee to the Company and Ctrip Shanghai hereunder, the Company shall cause Ctrip\nShanghai to pay to the Employee a salary (the “Salary”) consisting of (i) a fixed component and (ii) a variable component as indicated in\nAppendix 1.\n3.2 Salary shall be deemed to accrue from day to day, with the first monthly installment calculated from the Effective Date and the last monthly\ninstallment calculated down to the Expiration Date, or, in the event of early termination, to the date this Agreement is terminated, whichever is\nearlier.\n3.3 The Employee shall be solely responsible for all individual income tax and any other tax whatsoever imposed under applicable law of the\njurisdiction of the Company and Ctrip Shanghai, or otherwise on the Salary and any other amounts paid to the Employee by the Company for\nEmployee’s employment.\n3.4 The Company or Ctrip Shanghai shall reimburse travel, hotel and other out-of-pocket expenses properly incurred by the Employee in the\ncourse of Employee’s employment.\nARTICLE 4 PAID HOLIDAY AND SICK LEAVE\n4.1 The Employee shall be paid in full during any period of absence from work due to sickness or injury not exceeding 15 working days in any\nperiod of 12 months, and to the production of satisfactory evidence from a qualified medical practitioner in respect of any period of absence in\nexcess of 14 consecutive working days. The Employee’s salary during any period of absence due to sickness or injury shall be inclusive of any\nsickness allowance or other amount to which he is entitled from the Company.\n4.2 The Employee shall be entitled to a 5 day vacation days in the first year, and the number of vacation days will increase to 7 days in the second\nyear, 9 days in the third year, 11 days in the fourth year, 13 days in the fifth year and 15 days in the sixth year. Any entitlement to holiday\nremaining at the end of any contract year may not be carried forward to the next year.\nARTICLE 5 CONFIDENTIALITY\n5.1 Save insofar as such information is already lawfully in the public domain, the Employee shall keep secret and shall not at any time (whether\nduring the Term or thereafter) use for Employee’s own or any third party’s advantage, or reveal to any person, firm, company or organization\nand shall use Employee’s best endeavors to prevent the publication or disclosure of all Confidential Information (as defined herein below).\n5.2 If the Employee breaches this obligation of confidentiality, the Employee shall be liable to the Company for all damages (direct or\nconsequential) incurred as a result of the Employee’s breach.\n3\n5.3 The restrictions in this Article 5 shall not apply to any disclosure or use authorized by the Board or required by law or by the intended\nperformance of this Agreement.\n5.4\n“Confidential Information”, for the purpose of this Agreement, shall mean information relating to the business, customers, products and\naffairs of the Company (including without limitation marketing information) deemed confidential by the Company, treated by the Company or\nwhich the Employee knows or ought reasonably to have known to be confidential, and trade secrets, including without limitation designs,\nprocesses, pricing policies, methods, inventions, technology, technical data, financial information and know-how relating to the business of the\nCompany.\nFor purposes of Articles 5 and 6 of this Agreement, the Company shall include all subsidiaries and affiliated Chinese entities of the Company,\nincluding without limitation, Ctrip.com (Hong Kong) Limited, Ctrip Shanghai, and Ctrip Travel Information Technology (Shanghai) Limited.\n5.5 All notes, memoranda, records, drawings, designs, sketches, writing (by whatever medium kept or made) concerning the business of the\nCompany or customers of the Company made or received by the Employee during the course of the Employee’s employment shall be and\nremain the exclusive property of the Company and shall be handed over by the Employee to the Company upon the request of the Company at\nany time during the course of Employee’s employment and at the termination of this Agreement or in any event upon Employee’s leaving the\nservice of the Company.\nARTICLE 6 NON-COMPETITION\n6.l In consideration of the Salary paid to the Employee by the Company, the Employee agrees that during the Term and for a period of two\n(2) years following the termination or expiration of this Agreement (for whatever reason):\n(a) Employee will not approach clients, customers or contacts of the Company or other persons or entities introduced to Employee in\nEmployee’s capacity as a representative of the Company for the purposes of doing business with such persons or entities and will not\ninterfere with the business relationship between the Company and such persons and/or entities;\n(b) unless expressly consented to by the Company, Employee will not assume employment with or provide services as a director or\notherwise for any competitor of the Company, or engage, whether as principal, partner, licensor or otherwise, in any business which is in\ndirect or indirect competition with the business of the Company; and\n(c) unless expressly consented to by the Company, Employee will not seek directly or indirectly, by the offer of alternative employment or\nother inducement whatsoever, to solicit the services of any employee of the Company employed as at the date of such termination, or in\nthe year preceding such termination.\n4\n6.2 The provisions provided in Article 6.1 shall be separate and severable and enforceable independently of each other and independent of any\nother provision of this Agreement.\n6.3 The provisions contained in Article 6.1 are considered reasonable by the Parties but, in the event that any such provisions should be found to\nbe void under relevant PRC laws and regulations but would be valid if some part thereof was deleted or the period or area of application\nreduced, such provisions shall apply with such modification as may be necessary to make them valid and effective.\nARTICLE 7 TERMINATION\n7.1 Termination for Convenience. The Company may, terminate the Appointment by giving one month notice in writing to the Employee or the\nEmployee may also terminate the Appointment by giving one month notice in writing to the company.\n7.2 Termination for Cause.\nThe employment of the Employee may be terminated by the Company:\n(a) If the Employee is guilty of any gross default or gross misconduct in connection with or affecting the business of the Company to which\nhe is required by this Agreement to render services; or\n(b) If the Employee is convicted of any arrestable criminal offence.\n7.3 On termination of this Agreement for whatever reason (and whether in breach of contract or otherwise) the Employee shall deliver forthwith to\nthe Company all books, documents, papers (including copies), materials, credit cards, the company car and car keys (if any) and all other\nproperty relating to the business of or belonging to the Company which is in Employee’s possession or under Employee’s power or control.\nARTICLE 8 ASSIGNMENT\n8.l This Agreement will be binding upon and inure to the benefit of any successor of the Company. Any such successor of the Company will be\ndeemed substituted for the Company under the terms of this Agreement for all purposes. For this purpose, “successor” means any person, firm,\ncorporation or other business entity which at any time, whether by purchase, merger or otherwise, directly or indirectly acquires all or\nsubstantially all of the assets or business of the Company.\n5\nARTICLE 9 APPLICABLE LAW AND DISPUTE RESOLUTION\n9.1 This validity, interpretation, execution and settlement of any disputes arising from this Agreement shall be governed by the laws of New York,\nUSA.\n9.2 In the case that any one or more of the provisions contained in this Agreement shall be held invalid, illegal or unenforceable in any respect\nunder any applicable law, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected\nor impaired thereby.\n9.3 For labor disputes arising from the execution of, or in relation to this Agreement, the Parties shall first try to resolve the dispute through\nfriendly consultations. The Parties may also apply for mediation and/or arbitration in accordance with relevant New York laws and regulations.\nARTICLE 10 MISCELLANEOUS\n10.1 The Parties agree that the rights and obligations set forth in Articles 5, 6, 7.3, 9, and 10 shall survive the termination of this Agreement.\n10.2 This Agreement constitutes the entire agreement and understanding between the Parties and supersedes all other oral and written agreements\nbetween the Company and the Employee regarding the subject matter hereof. The Employee acknowledges that Employee has not entered into\nthis Agreement in reliance upon any representation, warranty or undertaking which is not set forth in this Agreement or expressly referred to in\nit as forming part of the Employee’s contract of employment.\n10.3 Any notice to be given under this Agreement to the Employee may be served by being handed to Employee personally or by being sent by\nrecorded delivery first class post to Employee at Employee’s usual or last known address; and any notice to be given to the Company may be\nserved by being left at or by being sent by recorded delivery first class post to its registered office. Any notice served by post shall be deemed\nto have been served on the day (excluding Sundays and statutory holidays) next following the date of posting and in proving such service it\nshall be sufficient proof that the envelope containing the notice was properly addressed and posted as a prepaid letter by recorded delivery first\nclass post.\n10.4 If one or more provisions of this Agreement are held to be unenforceable under applicable law, thus such provision(s) shall be deemed to be\nexcluded from this Agreement and the balance of this Agreement shall be enforceable in accordance with its terms.\n10.5 The rights and duties of the Employee under this Agreement shall not be subject to alienation, assignment or transfer.\n6\n10.6 The headings of the Articles of this Agreement are for the convenience of the Parties hereto and shall not be deemed a substantive part of this\nAgreement.\n10.7 No change in, or addition to, the terms of this Agreement shall be valid unless in writing and signed by both Parties hereto.\n10.8 This Agreement may be signed in two (2) counterparts and each counterpart shall be deemed to be an original.\n[SIGNATURE PAGE FOLLOWS]\n7\nIN WITNESS WHEREOF this Agreement has been executed on the date first above written.\nCtrip.com International, Ltd.\nEmployee\nSignature: /s/ James Jianzhang Liang\nSignature: /s/ Jie Sun\nName:\nJames Jianzhang Liang\nName:\nJie Sun\n8\nAppendix 1\n[Omitted]\n9	EX-4.5 2 dex45.htm EMPLOYMENT AND CONFIDENTIALITY AGREEMENT\nExhibit 4.5\nCTRIP.COM INTERNATIONAL, LTD.\nEMPLOYMENT AND CONFIDENTIALITY AGREEMENT\nEMPLOYMENT AND CONFIDENTIALITY AGREEMENT\nThis Employment and Confidentiality Agreement (the “Agreement”) is made as of this 1st December day of 2005 (“Effective Date”) by and\nbetween Ctrip.com International, Ltd. (the “Company”) and Ms. Jie Sun (the “Employee”).\n(The Company and the Employee are hereinafter referred to individually as a “Party” and collectively as the “Parties”.)\nWHEREAS, the Company desires to engage the services of Employee and the Employee desires to perform such services upon the terms and\nconditions set forth below.\nNOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements hereafter set forth, the Parties agree as follows:\nARTICLE 1 APPOINTMENT\n1.1  Subject to the terms and conditions herein, the Company agrees to employ Employee and cause its subsidiary Ctrip Computer Technology\n(Shanghai) Limited (“Ctrip Shanghai”) to employ Employee as the Chief Financial Officer of the Company and Ctrip Shanghai, and Employee\nagrees to serve the Company and Ctrip Shanghai in such capacity, and/or in such other capacity as the Company and the Employee may from\ntime to time agree upon, on the terms set out in this Agreement (“Appointment”).\nARTICLE 2 DUTIES\n2.1 The Employee shall be responsible for financial management of the Company and Ctrip Shanghai in accordance with this Agreement, the\nMemorandum and Articles of Association of the Company (the “Articles of Association”), and the guidelines, policies and procedures of the\nCompany approved from time to time by the Board.\n2.2 The Employee shall use his best endeavor to perform Employee’s duties hereunder and hereby agrees that Employee shall not, without the\nprior written consent of the Board, become an employee of any entity other than the Company and shall not be concerned or interested in any\nother business directly competitive with that carried on by the Company, provided that nothing in this clause shall preclude the Employee from\nholding or being otherwise interested in any shares or other securities of any company any part of those share capital is listed or dealt in on any\nstock exchange or recognized securities market anywhere and the Employee should notifies the Company in writing of his interest in such\nshares or securities in a timely manner and with such details and particulars as the Company may reasonably require.\n2\nARTICLE 3 REMUNERATION 3.1\n3.2\n3.3\n3.4\nIn consideration for the services rendered by the Employee to the Company and Ctrip Shanghai hereunder, the Company shall cause Ctrip\nShanghai to pay to the Employee a salary (the “Salary”) consisting of (i) a fixed component and (ii) a variable component as indicated in\nAppendix 1.\nSalary shall be deemed to accrue from day to day, with the first monthly installment calculated from the Effective Date and the last monthly\ninstallment calculated down to the Expiration Date, or, in the event of early termination, to the date this Agreement is terminated, whichever is\nearlier.\nThe Employee shall be solely responsible for all individual income tax and any other tax whatsoever imposed under applicable law of the\njurisdiction of the Company and Ctrip Shanghai, or otherwise on the Salary and any other amounts paid to the Employee by the Company for\nEmployee’s employment.\nThe Company or Ctrip Shanghai shall reimburse travel, hotel and other out-of-pocket expenses properly incurred by the Employee in the\ncourse of Employee’s employment.\nARTICLE 4 PAID HOLIDAY AND SICK LEAVE 4.1\n4.2\nThe Employee shall be paid in full during any period of absence from work due to sickness or injury not exceeding 15 working days in any\nperiod of 12 months, and to the production of satisfactory evidence from a qualified medical practitioner in respect of any period of absence in\nexcess of 14 consecutive working days. The Employee’s salary during any period of absence due to sickness or injury shall be inclusive of any\nsickness allowance or other amount to which he is entitled from the Company.\nThe Employee shall be entitled to a 5 day vacation days in the first year, and the number of vacation days will increase to 7 days in the second\nyear, 9 days in the third year, 11 days in the fourth year, 13 days in the fifth year and 15 days in the sixth year. Any entitlement to holiday\nremaining at the end of any contract year may not be carried forward to the next year.\nARTICLE 5 CONFIDENTIALITY 5.1\n5.2\nSave insofar as such information is already lawfully in the public domain, the Employee shall keep secret and shall not at any time (whether\nduring the Term or thereafter) use for Employee’s own or any third party’s advantage, or reveal to any person, firm, company or organization\nand shall use Employee’s best endeavors to prevent the publication or disclosure of all Confidential Information (as defined herein below).\nIf the Employee breaches this obligation of confidentiality, the Employee shall be liable to the Company for all damages (direct or\nconsequential) incurred as a result of the Employee’s breach.\n5.3\n5.4\n5.5\nThe restrictions in this Article 5 shall not apply to any disclosure or use authorized by the Board or required by law or by the intended\nperformance of this Agreement.\n“Confidential Information”, for the purpose of this Agreement, shall mean information relating to the business, customers, products and\naffairs of the Company (including without limitation marketing information) deemed confidential by the Company, treated by the Company or\nwhich the Employee knows or ought reasonably to have known to be confidential, and trade secrets, including without limitation designs,\nprocesses, pricing policies, methods, inventions, technology, technical data, financial information and know-how relating to the business of the\nCompany.\nFor purposes of Articles 5 and 6 of this Agreement, the Company shall include all subsidiaries and affiliated Chinese entities of the Company,\nincluding without limitation, Ctrip.com (Hong Kong) Limited, Ctrip Shanghai, and Ctrip Travel Information Technology (Shanghai) Limited.\nAll notes, memoranda, records, drawings, designs, sketches, writing (by whatever medium kept or made) concerning the business of the\nCompany or customers of the Company made or received by the Employee during the course of the Employee’s employment shall be and\nremain the exclusive property of the Company and shall be handed over by the Employee to the Company upon the request of the Company at\nany time during the course of Employee’s employment and at the termination of this Agreement or in any event upon Employee’s leaving the\nservice of the Company.\nARTICLE 6 NON-COMPETITION 6.1\nIn consideration of the Salary paid to the Employee by the Company, the Employee agrees that during the Term and for a period of two\n(2) years following the termination or expiration of this Agreement (for whatever reason):\n(a) Employee will not approach clients, customers or contacts of the Company or other persons or entities introduced to Employee in\nEmployee’s capacity as a representative of the Company for the purposes of doing business with such persons or entities and will not\ninterfere with the business relationship between the Company and such persons and/or entities;\n(b) unless expressly consented to by the Company, Employee will not assume employment with or provide services as a director or\notherwise for any competitor of the Company, or engage, whether as principal, partner, licensor or otherwise, in any business which is in\ndirect or indirect competition with the business of the Company; and\n(c) unless expressly consented to by the Company, Employee will not seek directly or indirectly, by the offer of alternative employment or\nother inducement whatsoever, to solicit the services of any employee of the Company employed as at the date of such termination, or in\nthe year preceding such termination.\n6.2\n6.3\nThe provisions provided in Article 6.1 shall be separate and severable and enforceable independently of each other and independent of any\nother provision of this Agreement.\nThe provisions contained in Article 6.1 are considered reasonable by the Parties but, in the event that any such provisions should be found to\nbe void under relevant PRC laws and regulations but would be valid if some part thereof was deleted or the period or area of application\nreduced, such provisions shall apply with such modification as may be necessary to make them valid and effective.\nARTICLE 7 TERMINATION 7.1\n7.2\n7.3\nTermination for Convenience. The Company may, terminate the Appointment by giving one month notice in writing to the Employee or the\nEmployee may also terminate the Appointment by giving one month notice in writing to the company.\nTermination for Cause.\nThe employment of the Employee may be terminated by the Company:\n(a) If the Employee is guilty of any gross default or gross misconduct in connection with or affecting the business of the Company to which\nhe is required by this Agreement to render services; or\n(b) If the Employee is convicted of any arrestable criminal offence.\nOn termination of this Agreement for whatever reason (and whether in breach of contract or otherwise) the Employee shall deliver forthwith to\nthe Company all books, documents, papers (including copies), materials, credit cards, the company car and car keys (if any) and all other\nproperty relating to the business of or belonging to the Company which is in Employee’s possession or under Employee’s power or control.\nARTICLE 8 ASSIGNMENT 8.1\nThis Agreement will be binding upon and inure to the benefit of any successor of the Company. Any such successor of the Company will be\ndeemed substituted for the Company under the terms of this Agreement for all purposes. For this purpose, “successor” means any person, firm,\ncorporation or other business entity which at any time, whether by purchase, merger or otherwise, directly or indirectly acquires all or\nsubstantially all of the assets or business of the Company.\nARTICLE 9 APPLICABLE LAW AND DISPUTE RESOLUTION 9.1\n9.2\n9.3\nThis validity, interpretation, execution and settlement of any disputes arising from this Agreement shall be governed by the laws of New York,\nUSA.\nIn the case that any one or more of the provisions contained in this Agreement shall be held invalid, illegal or unenforceable in any respect\nunder any applicable law, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected\nor impaired thereby.\nFor labor disputes arising from the execution of, or in relation to this Agreement, the Parties shall first try to resolve the dispute through\nfriendly consultations. The Parties may also apply for mediation and/or arbitration in accordance with relevant New York laws and regulations.\nARTICLE 10 MISCELLANEOUS 10.1\n10.2\n10.3\n10.4\n10.5\nThe Parties agree that the rights and obligations set forth in Articles 5, 6, 7.3, 9, and 10 shall survive the termination of this Agreement.\nThis Agreement constitutes the entire agreement and understanding between the Parties and supersedes all other oral and written agreements\nbetween the Company and the Employee regarding the subject matter hereof. The Employee acknowledges that Employee has not entered into\nthis Agreement in reliance upon any representation, warranty or undertaking which is not set forth in this Agreement or expressly referred to in\nit as forming part of the Employee’s contract of employment.\nAny notice to be given under this Agreement to the Employee may be served by being handed to Employee personally or by being sent by\nrecorded delivery first class post to Employee at Employee’s usual or last known address; and any notice to be given to the Company may be\nserved by being left at or by being sent by recorded delivery first class post to its registered office. Any notice served by post shall be deemed\nto have been served on the day (excluding Sundays and statutory holidays) next following the date of posting and in proving such service it\nshall be sufficient proof that the envelope containing the notice was properly addressed and posted as a prepaid letter by recorded delivery first\nclass post.\nIf one or more provisions of this Agreement are held to be unenforceable under applicable law, thus such provision(s) shall be deemed to be\nexcluded from this Agreement and the balance of this Agreement shall be enforceable in accordance with its terms.\nThe rights and duties of the Employee under this Agreement shall not be subject to alienation, assignment or transfer.\n6\n10.6 The headings of the Articles of this Agreement are for the convenience of the Parties hereto and shall not be deemed a substantive part of this\nAgreement.\n10.7 No change in, or addition to, the terms of this Agreement shall be valid unless in writing and signed by both Parties hereto.\n10.8 This Agreement may be signed in two (2) counterparts and each counterpart shall be deemed to be an original.\n[SIGNATURE PAGE FOLLOWS]\n7\nIN WITNESS WHEREOF this Agreement has been executed on the date first above written.\nCtrip.com International, Ltd. Employee\nSignature: /s/ James Jianzhang Liang Signature: /s/ Jie Sun\nName: James Jianzhang Liang Name: Jie Sun\n \nAppendix 1\n[Omitted]	EX-4.5 2 dex45.htm EMPLOYMENT AND CONFIDENTIALITY AGREEMENT\nExhibit 4.5\nCTRIP.COM INTERNATIONAL, LTD.\nEMPLOYMENT AND CONFIDENTIALITY AGREEMENT\nEMPLOYMENT AND CONFIDENTIALITY AGREEMENT\nThis Employment and Confidentiality Agreement (the "Agreement") is made as of this 1st December day of 2005 ("Effective Date") by and\nbetween Ctrip.com International, Ltd. (the "Company") and Ms. Jie Sun (the "Employee").\n(The Company and the Employee are hereinafter referred to individually as a "Party" and collectively as the "Parties".)\nWHEREAS, the Company desires to engage the services of Employee and the Employee desires to perform such services upon the terms and\nconditions set forth below.\nNOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements hereafter set forth, the Parties agree as follows:\nARTICLE 1 APPOINTMENT\n1.1 Subject to the terms and conditions herein, the Company agrees to employ Employee and cause its subsidiary Ctrip Computer Technology\n(Shanghai) Limited ("Ctrip Shanghai") to employ Employee as the Chief Financial Officer of the Company and Ctrip Shanghai, and Employee\nagrees to serve the Company and Ctrip Shanghai in such capacity, and/or in such other capacity as the Company and the Employee may from\ntime to time agree upon, on the terms set out in this Agreement ("Appointment").\nARTICLE 2 DUTIES\n2.1 The Employee shall be responsible for financial management of the Company and Ctrip Shanghai in accordance with this Agreement, the\nMemorandum and Articles of Association of the Company (the "Articles of Association"), and the guidelines, policies and procedures of the\nCompany approved from time to time by the Board.\n2.2\nThe Employee shall use his best endeavor to perform Employee's duties hereunder and hereby agrees that Employee shall not, without the\nprior written consent of the Board, become an employee of any entity other than the Company and shall not be concerned or interested in any\nother business directly competitive with that carried on by the Company, provided that nothing in this clause shall preclude the Employee from\nholding or being otherwise interested in any shares or other securities of any company any part of those share capital is listed or dealt in on any\nstock exchange or recognized securities market anywhere and the Employee should notifies the Company in writing of his interest in such\nshares or securities in a timely manner and with such details and particulars as the Company may reasonably require.\n2\nARTICLE 3 REMUNERATION\n3.1\nIn consideration for the services rendered by the Employee to the Company and Ctrip Shanghai hereunder, the Company shall cause Ctrip\nShanghai to pay to the Employee a salary (the "Salary") consisting of (i) a fixed component and (ii) a variable component as indicated in\nAppendix 1.\n3.2\nSalary shall be deemed to accrue from day to day, with the first monthly installment calculated from the Effective Date and the last monthly\ninstallment calculated down to the Expiration Date, or, in the event of early termination, to the date this Agreement is terminated, whichever is\nearlier.\n3.3 The Employee shall be solely responsible for all individual income tax and any other tax whatsoever imposed under applicable law of the\njurisdiction of the Company and Ctrip Shanghai, or otherwise on the Salary and any other amounts paid to the Employee by the Company for\nEmployee's employment.\n3.4 The Company or Ctrip Shanghai shall reimburse travel, hotel and other out-of-pocket expenses properly incurred by the Employee in the\ncourse of Employee's employment.\nARTICLE 4 PAID HOLIDAY AND SICK LEAVE\n4.1\nThe Employee shall be paid in full during any period of absence from work due to sickness or injury not exceeding 15 working days in any\nperiod of 12 months, and to the production of satisfactory evidence from a qualified medical practitioner in respect of any period of absence in\nexcess of 14 consecutive working days. The Employee's salary during any period of absence due to sickness or injury shall be inclusive of any\nsickness allowance or other amount to which he is entitled from the Company.\n4.2\nThe Employee shall be entitled to a 5 day vacation days in the first year, and the number of vacation days will increase to 7 days in the second\nyear, 9 days in the third year, 11 days in the fourth year, 13 days in the fifth year and 15 days in the sixth year. Any entitlement to holiday\nremaining at the end of any contract year may not be carried forward to the next year.\nARTICLE 5 CONFIDENTIALITY\n5.1\nSave insofar as such information is already lawfully in the public domain, the Employee shall keep secret and shall not at any time (whether\nduring the Term or thereafter) use for Employee's own or any third party's advantage, or reveal to any person, firm, company or organization\nand shall use Employee's best endeavors to prevent the publication or disclosure of all Confidential Information (as defined herein below).\n5.2 If the Employee breaches this obligation of confidentiality, the Employee shall be liable to the Company for all damages (direct or\nconsequential) incurred as a result of the Employee's breach.\n3\n5.3 The restrictions in this Article 5 shall not apply to any disclosure or use authorized by the Board or required by law or by the intended\nperformance of this Agreement.\n5.4\n"Confidential Information", for the purpose of this Agreement, shall mean information relating to the business, customers, products and\naffairs of the Company (including without limitation marketing information) deemed confidentia by the Company, treated by the Company or\nwhich the Employee knows or ought reasonably to have known to be confidential, and trade secrets, including without limitation designs,\nprocesses, pricing policies, methods, inventions, technology, technical data, financial information and know-how relating to the business of the\nCompany.\nFor purposes of Articles 5 and 6 of this Agreement, the Company shall include all subsidiaries and affiliated Chinese entities of the Company,\nincluding without limitation, Ctrip.com (Hong Kong) Limited, Ctrip Shanghai, and Ctrip Travel Information Technology (Shanghai) Limited.\n5.5 All notes, memoranda, records, drawings, designs, sketches, writing (by whatever medium kept or made) concerning the business of the\nCompany or customers of the Company made or received by the Employee during the course of the Employee's employment shall be and\nremain the exclusive property of the Company and shall be handed over by the Employee to the Company upon the request of the Company at\nany time during the course of Employee's employment and at the termination of this Agreement or in any event upon Employee's leaving the\nservice of the Company.\nARTICLE 6 NON-COMPETITION\n6.1\nIn consideration of the Salary paid to the Employee by the Company, the Employee agrees that during the Term and for a period of two\n(2) years following the termination or expiration of this Agreement (for whatever reason):\n(a) Employee will not approach clients, customers or contacts of the Company or other persons or entities introduced to Employee in\nEmployee's capacity as a representative of the Company for the purposes of doing business with such persons or entities and will not\ninterfere with the business relationship between the Company and such persons and/or entities;\n(b)\nunless expressly consented to by the Company, Employee will not assume employment with or provide services as a director or\notherwise for any competitor of the Company, or engage, whether as principal, partner, licensor or otherwise, in any business which is\nin\ndirect or indirect competition with the business of the Company; and\n(c)\nunless expressly consented to by the Company, Employee will not seek directly or indirectly, by the offer of alternative employment or\nother inducement whatsoever, to solicit the services of any employee of the Company employed as at the date of such termination, or in\nthe year preceding such termination.\n4\n6.2 The provisions provided in Article 6.1 shall be separate and severable and enforceable independently of each other and independent of any\nother provision of this Agreement.\n6.3 The provisions contained in Article 6.1 are considered reasonable by the Parties but, in the event that any such provisions should be found to\nbe void under relevant PRC laws and regulations but would be valid if some part thereof was deleted or the period or area of application\nreduced, such provisions shall apply with such modification as may be necessary to make them valid and effective.\nARTICLE 7 TERMINATION\n7.1\nTermination for Convenience. The Company may, terminate the Appointment by giving one month notice in writing to the Employee or the\nEmployee may also terminate the Appointment by giving one month notice in writing to the company.\n7.2 Termination for Cause.\nThe employment of the Employee may be terminated by the Company:\n(a)\nIf the Employee is guilty of any gross default or gross misconduct in connection with or affecting the business of the Company to which\nhe is required by this Agreement to render services; or\n(b) If the Employee is convicted of any arrestable criminal offence.\n7.3\nOn termination of this Agreement for whatever reason (and whether in breach of contract or otherwise) the Employee shall deliver forthwith to\nthe Company all books, documents, papers (including copies), materials, credit cards, the company car and car keys (if any) and all other\nproperty relating to the business of or belonging to the Company which is in Employee's possession or under Employee's power or control.\nARTICLE 8 ASSIGNMENT\n8.1\nThis Agreement will be binding upon and inure to the benefit of any successor of the Company. Any such successor of the Company will be\ndeemed substituted for the Company under the terms of this Agreement for all purposes. For this purpose, "successor" means any person, firm,\ncorporation or other business entity which at any time, whether by purchase, merger or otherwise, directly or indirectly acquires all or\nsubstantially all of the assets or business of the Company.\n5\nARTICLE 9 APPLICABLE LAW AND DISPUTE RESOLUTION\n9.1\nThis validity, interpretation, execution and settlement of any disputes arising from this Agreement shall be governed by the laws of New York,\nUSA.\n9.2\nIn the case that any one or more of the provisions contained in this Agreement shall be held invalid, illegal or unenforceable in any respect\nunder any applicable law, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected\nor impaired thereby.\n9.3 For labor disputes arising from the execution of, or in relation to this Agreement, the Parties shall first try to resolve the dispute through\nfriendly consultations. The Parties may also apply for mediation and/or arbitration in accordance with relevant New York laws and regulations.\nARTICLE 10 MISCELLANEOUS\n10.1 The Parties agree that the rights and obligations set forth in Articles 5, 6, 7.3, 9, and 10 shall survive the termination of this Agreement.\n10.2 This Agreement constitutes the entire agreement and understanding between the Parties and supersedes all other oral and written agreements\nbetween the Company and the Employee regarding the subject matter hereof. The Employee acknowledges that Employee has not entered into\nthis Agreement in reliance upon any representation, warranty or undertaking which is not set forth in this Agreement or expressly referred to in\nit as forming part of the Employee's contract of employment.\n10.3 Any notice to be given under this Agreement to the Employee may be served by being handed to Employee personally or by being sent by\nrecorded delivery first class post to Employee at Employee's usual or last known address; and any notice to be given to the Company may be\nserved by being left at or by being sent by recorded delivery first class post to its registered office. Any notice served by post shall be deemed\nto have been served on the day (excluding Sundays and statutory holidays) next following the date of posting and in proving such service it\nshall be sufficient proof that the envelope containing the notice was properly addressed and posted as a prepaid letter by recorded delivery first\nclass post.\n10.4 If one or more provisions of this Agreement are held to be unenforceable under applicable law, thus such provision(s) shall be deemed to be\nexcluded from this Agreement and the balance of this Agreement shall be enforceable in accordance with its terms.\n10.5 The rights and duties of the Employee under this Agreement shall not be subject to alienation, assignment or transfer.\n6\n10.6 The headings of the Articles of this Agreement are for the convenience of the Parties hereto and shall not be deemed a substantive part of this\nAgreement.\n10.7 No change in, or addition to, the terms of this Agreement shall be valid unless in writing and signed by both Parties hereto.\n10.8 This Agreement may be signed in two (2) counterparts and each counterpart shall be deemed to be an original.\n[SIGNATURE PAGE FOLLOWS]\n7\nIN WITNESS WHEREOF this Agreement has been executed on the date first above written.\nCtrip.com International, Ltd.\nEmployee\nSignature: /s/ James Jianzhang Liang\nSignature: /s/ Jie Sun\nName:\nJames Jianzhang Liang\nName:\nJie Sun\n8\nAppendix 1\n[Omitted]\n9	EX-4.5 2 dex45.htm EMPLOYMENT AND CONFIDENTIALITY AGREEMENT\nExhibit 4.5\nCTRIP.COM INTERNATIONAL, LTD.\nEMPLOYMENT AND CONFIDENTIALITY AGREEMENT\nEMPLOYMENT AND CONFIDENTIALITY AGREEMENT\nThis Employment and Confidentiality Agreement (the “Agreement”) is made as of this 1st December day of 2005 (“Effective Date”) by and\nbetween Ctrip.com International, Ltd. (the “Company”) and Ms. Jie Sun (the “Employee”).\n(The Company and the Employee are hereinafter referred to individually as a “Party” and collectively as the “Parties”.)\nWHEREAS, the Company desires to engage the services of Employee and the Employee desires to perform such services upon the terms and\nconditions set forth below.\nNOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements hereafter set forth, the Parties agree as follows:\nARTICLE 1 APPOINTMENT\n1.1 Subject to the terms and conditions herein, the Company agrees to employ Employee and cause its subsidiary Ctrip Computer Technology\n(Shanghai) Limited (“Ctrip Shanghai”) to employ Employee as the Chief Financial Officer of the Company and Ctrip Shanghai, and Employee\nagrees to serve the Company and Ctrip Shanghai in such capacity, and/or in such other capacity as the Company and the Employee may from\ntime to time agree upon, on the terms set out in this Agreement (“Appointment”).\nARTICLE 2 DUTIES\n2.1 The Employee shall be responsible for financial management of the Company and Ctrip Shanghai in accordance with this Agreement, the\nMemorandum and Articles of Association of the Company (the “Articles of Association”), and the guidelines, policies and procedures of the\nCompany approved from time to time by the Board.\n2.2 The Employee shall use his best endeavor to perform Employee’s duties hereunder and hereby agrees that Employee shall not, without the\nprior written consent of the Board, become an employee of any entity other than the Company and shall not be concerned or interested in any\nother business directly competitive with that carried on by the Company, provided that nothing in this clause shall preclude the Employee from\nholding or being otherwise interested in any shares or other securities of any company any part of those share capital is listed or dealt in on any\nstock exchange or recognized securities market anywhere and the Employee should notifies the Company in writing of his interest in such\nshares or securities in a timely manner and with such details and particulars as the Company may reasonably require.\n2\nARTICLE 3 REMUNERATION\n3.1 In consideration for the services rendered by the Employee to the Company and Ctrip Shanghai hereunder, the Company shall cause Ctrip\nShanghai to pay to the Employee a salary (the “Salary”) consisting of (i) a fixed component and (ii) a variable component as indicated in\nAppendix 1.\n3.2 Salary shall be deemed to accrue from day to day, with the first monthly installment calculated from the Effective Date and the last monthly\ninstallment calculated down to the Expiration Date, or, in the event of early termination, to the date this Agreement is terminated, whichever is\nearlier.\n3.3 The Employee shall be solely responsible for all individual income tax and any other tax whatsoever imposed under applicable law of the\njurisdiction of the Company and Ctrip Shanghai, or otherwise on the Salary and any other amounts paid to the Employee by the Company for\nEmployee’s employment.\n3.4 The Company or Ctrip Shanghai shall reimburse travel, hotel and other out-of-pocket expenses properly incurred by the Employee in the\ncourse of Employee’s employment.\nARTICLE 4 PAID HOLIDAY AND SICK LEAVE\n4.1 The Employee shall be paid in full during any period of absence from work due to sickness or injury not exceeding 15 working days in any\nperiod of 12 months, and to the production of satisfactory evidence from a qualified medical practitioner in respect of any period of absence in\nexcess of 14 consecutive working days. The Employee’s salary during any period of absence due to sickness or injury shall be inclusive of any\nsickness allowance or other amount to which he is entitled from the Company.\n4.2 The Employee shall be entitled to a 5 day vacation days in the first year, and the number of vacation days will increase to 7 days in the second\nyear, 9 days in the third year, 11 days in the fourth year, 13 days in the fifth year and 15 days in the sixth year. Any entitlement to holiday\nremaining at the end of any contract year may not be carried forward to the next year.\nARTICLE 5 CONFIDENTIALITY\n5.1 Save insofar as such information is already lawfully in the public domain, the Employee shall keep secret and shall not at any time (whether\nduring the Term or thereafter) use for Employee’s own or any third party’s advantage, or reveal to any person, firm, company or organization\nand shall use Employee’s best endeavors to prevent the publication or disclosure of all Confidential Information (as defined herein below).\n5.2 If the Employee breaches this obligation of confidentiality, the Employee shall be liable to the Company for all damages (direct or\nconsequential) incurred as a result of the Employee’s breach.\n3\n5.3 The restrictions in this Article 5 shall not apply to any disclosure or use authorized by the Board or required by law or by the intended\nperformance of this Agreement.\n5.4\n“Confidential Information”, for the purpose of this Agreement, shall mean information relating to the business, customers, products and\naffairs of the Company (including without limitation marketing information) deemed confidential by the Company, treated by the Company or\nwhich the Employee knows or ought reasonably to have known to be confidential, and trade secrets, including without limitation designs,\nprocesses, pricing policies, methods, inventions, technology, technical data, financial information and know-how relating to the business of the\nCompany.\nFor purposes of Articles 5 and 6 of this Agreement, the Company shall include all subsidiaries and affiliated Chinese entities of the Company,\nincluding without limitation, Ctrip.com (Hong Kong) Limited, Ctrip Shanghai, and Ctrip Travel Information Technology (Shanghai) Limited.\n5.5 All notes, memoranda, records, drawings, designs, sketches, writing (by whatever medium kept or made) concerning the business of the\nCompany or customers of the Company made or received by the Employee during the course of the Employee’s employment shall be and\nremain the exclusive property of the Company and shall be handed over by the Employee to the Company upon the request of the Company at\nany time during the course of Employee’s employment and at the termination of this Agreement or in any event upon Employee’s leaving the\nservice of the Company.\nARTICLE 6 NON-COMPETITION\n6.l In consideration of the Salary paid to the Employee by the Company, the Employee agrees that during the Term and for a period of two\n(2) years following the termination or expiration of this Agreement (for whatever reason):\n(a) Employee will not approach clients, customers or contacts of the Company or other persons or entities introduced to Employee in\nEmployee’s capacity as a representative of the Company for the purposes of doing business with such persons or entities and will not\ninterfere with the business relationship between the Company and such persons and/or entities;\n(b) unless expressly consented to by the Company, Employee will not assume employment with or provide services as a director or\notherwise for any competitor of the Company, or engage, whether as principal, partner, licensor or otherwise, in any business which is in\ndirect or indirect competition with the business of the Company; and\n(c) unless expressly consented to by the Company, Employee will not seek directly or indirectly, by the offer of alternative employment or\nother inducement whatsoever, to solicit the services of any employee of the Company employed as at the date of such termination, or in\nthe year preceding such termination.\n4\n6.2 The provisions provided in Article 6.1 shall be separate and severable and enforceable independently of each other and independent of any\nother provision of this Agreement.\n6.3 The provisions contained in Article 6.1 are considered reasonable by the Parties but, in the event that any such provisions should be found to\nbe void under relevant PRC laws and regulations but would be valid if some part thereof was deleted or the period or area of application\nreduced, such provisions shall apply with such modification as may be necessary to make them valid and effective.\nARTICLE 7 TERMINATION\n7.1 Termination for Convenience. The Company may, terminate the Appointment by giving one month notice in writing to the Employee or the\nEmployee may also terminate the Appointment by giving one month notice in writing to the company.\n7.2 Termination for Cause.\nThe employment of the Employee may be terminated by the Company:\n(a) If the Employee is guilty of any gross default or gross misconduct in connection with or affecting the business of the Company to which\nhe is required by this Agreement to render services; or\n(b) If the Employee is convicted of any arrestable criminal offence.\n7.3 On termination of this Agreement for whatever reason (and whether in breach of contract or otherwise) the Employee shall deliver forthwith to\nthe Company all books, documents, papers (including copies), materials, credit cards, the company car and car keys (if any) and all other\nproperty relating to the business of or belonging to the Company which is in Employee’s possession or under Employee’s power or control.\nARTICLE 8 ASSIGNMENT\n8.l This Agreement will be binding upon and inure to the benefit of any successor of the Company. Any such successor of the Company will be\ndeemed substituted for the Company under the terms of this Agreement for all purposes. For this purpose, “successor” means any person, firm,\ncorporation or other business entity which at any time, whether by purchase, merger or otherwise, directly or indirectly acquires all or\nsubstantially all of the assets or business of the Company.\n5\nARTICLE 9 APPLICABLE LAW AND DISPUTE RESOLUTION\n9.1 This validity, interpretation, execution and settlement of any disputes arising from this Agreement shall be governed by the laws of New York,\nUSA.\n9.2 In the case that any one or more of the provisions contained in this Agreement shall be held invalid, illegal or unenforceable in any respect\nunder any applicable law, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected\nor impaired thereby.\n9.3 For labor disputes arising from the execution of, or in relation to this Agreement, the Parties shall first try to resolve the dispute through\nfriendly consultations. The Parties may also apply for mediation and/or arbitration in accordance with relevant New York laws and regulations.\nARTICLE 10 MISCELLANEOUS\n10.1 The Parties agree that the rights and obligations set forth in Articles 5, 6, 7.3, 9, and 10 shall survive the termination of this Agreement.\n10.2 This Agreement constitutes the entire agreement and understanding between the Parties and supersedes all other oral and written agreements\nbetween the Company and the Employee regarding the subject matter hereof. The Employee acknowledges that Employee has not entered into\nthis Agreement in reliance upon any representation, warranty or undertaking which is not set forth in this Agreement or expressly referred to in\nit as forming part of the Employee’s contract of employment.\n10.3 Any notice to be given under this Agreement to the Employee may be served by being handed to Employee personally or by being sent by\nrecorded delivery first class post to Employee at Employee’s usual or last known address; and any notice to be given to the Company may be\nserved by being left at or by being sent by recorded delivery first class post to its registered office. Any notice served by post shall be deemed\nto have been served on the day (excluding Sundays and statutory holidays) next following the date of posting and in proving such service it\nshall be sufficient proof that the envelope containing the notice was properly addressed and posted as a prepaid letter by recorded delivery first\nclass post.\n10.4 If one or more provisions of this Agreement are held to be unenforceable under applicable law, thus such provision(s) shall be deemed to be\nexcluded from this Agreement and the balance of this Agreement shall be enforceable in accordance with its terms.\n10.5 The rights and duties of the Employee under this Agreement shall not be subject to alienation, assignment or transfer.\n6\n10.6 The headings of the Articles of this Agreement are for the convenience of the Parties hereto and shall not be deemed a substantive part of this\nAgreement.\n10.7 No change in, or addition to, the terms of this Agreement shall be valid unless in writing and signed by both Parties hereto.\n10.8 This Agreement may be signed in two (2) counterparts and each counterpart shall be deemed to be an original.\n[SIGNATURE PAGE FOLLOWS]\n7\nIN WITNESS WHEREOF this Agreement has been executed on the date first above written.\nCtrip.com International, Ltd.\nEmployee\nSignature: /s/ James Jianzhang Liang\nSignature: /s/ Jie Sun\nName:\nJames Jianzhang Liang\nName:\nJie Sun\n8\nAppendix 1\n[Omitted]\n9
c2a0229bebde5f504f5dfce35848dda3.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 8 d642137dex99d2.htm EX-99 .(D)(2)\nExhibit 99.(d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE A GREEMENT (this “Agreement”), entered into as of October 9, 2018 (the “Effective Date”), governs the\ndisclosure of information by and between Spark Therapeutics, Inc., a Delaware corporation, having an address at 3737 Market Street, Suite 1300,\nPhiladelphia, PA (“Spark”), and Roche Holdings Inc, a Delaware company having an address at 1 DNA Way, South San Francisco, CA 94080\n(“Company”). For purposes of this Agreement, references to each of Spark and Company, and corresponding references to disclosing party and\nreceiving party herein, shall include the respective subsidiaries and other entities controlled, directly or indirectly by Spark or Company, as the case may\nbe; provided, however, with respect to Company, the foregoing provision shall exclude Chugai Pharmaceutical Co., Ltd, 1-1 Nihonbashi-Muromachi\n2-chome, Chuo-ku, Tokyo, 103-8324 (“Chugai”) unless the Company opts for such inclusion of Chugai and their respective subsidiaries by giving\nwritten notice to the Company.\n1. Purpose. This Agreement is made in order for each party to disclose to the other, during the term of this Agreement, such scientific, technical,\nbusiness and financial information as the disclosing party may elect to disclose so that the receiving party may use the same solely for the purpose\nof evaluating the Confidential Information internally in connection with evaluating a possible transaction between the parties relating to one, more\nor all of Spark’s gene therapy product candidates and/or assets (the “Purpose”) under terms that will protect the confidential and proprietary\nnature of such information.\n2. Confidential Information. As used herein, “Confidential Information” will mean any and all scientific, technical, business and financial\ninformation, including third party information, that is furnished or disclosed, in whatever form or medium (regardless of whether tangible,\nintangible, visual, or oral), to the receiving party, before or after the Effective Date. “Confidential Information” includes but is not limited to:\n(a) patent and patent applications; (b) manufacturing, including process and know-how; (c) clinical trial design or results; (d) vendors; (e) trade\nsecrets; and (f) other proprietary information, ideas, gene sequences, cell lines, samples, chemical compounds, assays, biological materials,\ntechniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, and formulae related to\nthe current, future, and proposed products and services of each of the parties, and including without limitation, their respective information\nconcerning research, experimental work, development, design details and specifications, engineering, financial information, procurement\nrequirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, analyst\nreports, sales and merchandising, marketing plans and any additional non-public information the disclosing party provides.\n3. Obligations. Each receiving party agrees: (a) to use the disclosing party’s Confidential Information solely for the Purpose stated above and\nfor no other reason; (b) to protect the confidentiality of the disclosing party’s Confidential Information; (c) not to disclose any of the disclosing\nparty’s Confidential Information to anyone, except those employees, consultants or representatives of the receiving party or its\nAffiliates who have a “need to know” the information for the Purpose and who have signed confidentiality agreements or are otherwise bound by\nconfidentiality and non-use obligations at least as restrictive as those contained herein; and (d) to notify appropriately such employees, consultants\nand representatives of the receiving party or its Affiliates that the disclosure is made in confidence and under the applicable confidentiality\nobligations. The receiving party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its employees,\nconsultants or representatives. Each receiving party agrees that in the event permission is granted by the disclosing party to copy Confidential\nInformation, each such copy will contain and state the same confidential or proprietary notices or legends, if any, that appear on the original.\n4. Exceptions. The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that the receiving\nparty can establish by competent evidence acceptable under applicable law and as deemed appropriate by the competent court: (a) is already\nknown to the receiving party prior to the disclosing party’s disclosure; (b) is or becomes publicly available through no fault of the receiving party;\n(c) is obtained by the receiving party from a third party; or (d) is independently developed by the receiving party without use of or reference to any\nConfidential Information. Notwithstanding the foregoing, (i) any Confidential Information shall not be deemed to be within the foregoing\nexceptions merely because such information is embraced by more general information in the public domain or in the possession of the receiving\nparty, and (ii) any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the\npublic domain or in the possession of the receiving party, but only if the combination itself and its principle of operation are in the public domain\nor in the possession of the receiving party. Notwithstanding anything contained in this Agreement, other than in the case of an External Demand\n(as defined below), the receiving party may disclose either the fact that discussions or negotiations are taking place concerning the Purpose or any\nof the terms, conditions or other facts with respect to the Purpose, including the status thereof or that Confidential Information has been made\navailable to the receiving party (such information, “Transaction Information”) if but only if (i) such disclosure is required under applicable\nsecurities or antitrust laws or under applicable stock exchange rules as determined based on advice of legal counsel and (ii) such disclosure\nrequirement does not arise from a breach of this Agreement. In the event the receiving party receives a request or is required by deposition,\ninterrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory\nexaminer (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Confidential Information of the\ndisclosing party or the Transaction Information, the receiving party shall (1) immediately notify the disclosing party of the existence, terms and\ncircumstances surrounding such External Demand, (2) consult with the disclosing party on the advisability of taking legally available steps to\nresist or narrow such request or disclosure, and (3) assist the disclosing party, at the disclosing party’s expense, in seeking a protective order or\nother appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or\nthat the disclosing party waives compliance with the provisions hereof, (x) the receiving party may disclose only that portion of the Confidential\nInformation or Transaction Information which the receiving party is advised by counsel is legally\n-2-\nrequired to be disclosed and to only those persons to whom the receiving party is advised by counsel are legally required to receive such\ninformation, and the receiving party shall exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded\nsuch Confidential Information or Transaction Information, and (y) the receiving party shall not be liable for such disclosure, unless such\ndisclosure was caused by or resulted from a previous disclosure by the receiving party not permitted by this Agreement.\n5. Handling of Information and Materials. Confidential Information will not be reproduced in any form except as required to accomplish the\nPurpose of this Agreement. Any reproduction of any Confidential Information of the disclosing party will remain the property of the disclosing\nparty and will contain and state any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized\nin writing by the disclosing party. Upon termination or expiration of this Agreement, or upon written request of the disclosing party, each\nreceiving party will promptly destroy (to the extent reasonably practicable in case of electronic files) or return to the other all documents and other\ntangible materials representing the disclosing party’s Confidential Information and all copies thereof. Notwithstanding the forgoing the receiving\nparty may retain one copy of all Confidential Information in its legal department solely for archival and compliance purposes and its external\nadvisors, if any, may keep one copy of their Confidential Information in accordance with the laws and professional standards applicable to them.\n6. No Other Rights. The parties recognize and agree that nothing contained in this Agreement will be construed as granting any property rights,\nby license or otherwise, to any Confidential Information of the disclosing party disclosed pursuant to this Agreement, or to any invention or any\npatent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Each\nreceiving party will not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any\nConfidential Information of the disclosing party.\n7. Standstill. Company hereby acknowledges that, unless otherwise agreed in writing by Spark, for a period of twelve (12) months from the date\nof this Agreement (the “Restricted Period”) none of Company, nor any of its Affiliates (as defined in Rule 12b-2 under the Securities Exchange\nAct of 1934, as amended) who are provided with Confidential Information or become aware of Company’s discussions with Spark, will:\n(a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of Spark’s assets or businesses, or similar\ntransactions involving Spark or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to Spark; (b) (i)\nacquire beneficial ownership of any voting securities (including in derivative form) of Spark (collectively, a transaction specified in (a)(i), (a)(ii)\nand (b)(i) involving a majority of Spark’s outstanding voting securities or consolidated assets, is referred to as a “Business Combination”), (ii)\npropose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange\nCommission) of proxies or consents to vote any securities (including in derivative form) of Spark, (iii) nominate any person as a director of Spark,\nor (iv)\n-3-\npropose any matter to be voted upon by the stockholders of Spark; (c) directly or indirectly, form, join or in any way participate in a third party\n“group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a\ngroup) with respect to any voting securities (including in derivative form) of Spark or a Business Combination involving Spark; (d) request Spark\n(or any of its officers, directors or representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this\nsentence) in a way which would require Spark to publicly disclose the same; or (d) take any action that could require Spark to make a public\nannouncement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit Company from make\na confidential proposal to Spark or Spark’s Chairman of the Board of Directors for a transaction involving a Business Combination at any time for\na transaction involving a Business Combination. Notwithstanding the foregoing provisions of this paragraph to the contrary, the foregoing\nrestrictions set forth in this paragraph shall immediately and automatically terminate and cease to apply with respect to Company and its Affiliates\nwithout any further action in the event that (A) Spark’s board of directors (or a committee thereof) approves, or Spark enters into a definitive\nagreement providing for, a Business Combination, (B) a third party commences, or announces an intention to commence, a tender or exchange\noffer, the consummation of which would constitute a Business Combination and (i) the board of directors (or a committee thereof) of Spark at any\ntime recommends, or publicly discloses an intention to recommend, that Spark’s shareholders tender their shares into such tender or exchange\noffer (as it may have been amended), or (ii) the board of directors (or a committee thereof) of Spark does not, within ten business days from the\ndate such offer is first published, sent or given to shareholders, recommend that Spark’s shareholders not tender their shares into such tender or\nexchange offer (as it may have been amended) or at any time thereafter changes its recommendation with respect to such tender or exchange offer\n(as it may have been amended) or takes any similar action that results in such board of directors no longer recommending that Spark’s\nshareholders not tender their shares into such tender or exchange offer, (C) any person or “group” (as such term is used under the Exchange Act)\ncommences, or announces an intention to commence, any “solicitation” of “proxies” (as such terms are used under the Exchange Act) or consents\nwith respect to the voting securities of Spark in which such person or group would, if successful, elect or acquire the ability to elect a majority of\nthe members of the board of directors of Spark or result in a majority of the seats of the board of directors of Spark becoming vacant, or (D) with\nrespect to any pending tender offer or exchange offer for shares of Spark, the consummation of which would constitute a Business Combination,\nSpark’s board of directors (or any committee thereof) no longer recommends that its shareholders tender their shares into such tender or exchange\noffer (as it may have been amended). The parties further acknowledge that Spark may enter into additional standstill agreements similar to the\nprovision in this paragraph with third parties in connection with such third parties evaluating a possible transaction with Spark (“Other Standstill\nAgreement”), and the parties hereby agree that, to the extent that any such Other Standstill Agreement contains provisions that are more favorable\nto the third party than the provisions in this paragraph, this Agreement shall be deemed automatically amended to incorporate such more favorable\nterms as set forth in the Other Standstill Agreement. Following the expiration of the Restricted Period, no provision of this\n-4-\nagreement shall restrict Company or its Affiliates, directly or indirectly, from taking any action described in this paragraph 7 (including using for\nthe purpose of such action, but not otherwise disclosing any Confidential Information). For the avoidance of doubt, nothing in this paragraph 7\nshall prevent the Company from entering into license, collaboration or other similar agreements in the ordinary course of business.\n8. Passive Investments. The provisions of paragraph 7 shall not prohibit, Company or its Affiliates from owning and/or acquiring voting shares\nor other ownership interests in Spark provided that Company together with its Affiliates owns, in the aggregate, not more 5% of such voting\nsecurities. The provisions of paragraph 7 shall not prohibit passive investments by a pension or employee benefit plan or trust for Company’s or its\nAffiliates employees so long as such investments are directed by independent trustees, administrators or employees to whom no Confidential\nInformation has been disclosed.\n9. Term and Termination. This Agreement will terminate one (1) year after the Effective Date, or may be terminated by either party at any time\nupon thirty (30) days written notice to the other party. The receiving party’s obligations under this Agreement will survive termination or\nexpiration of this Agreement for a period of five (5) years after the termination or expiration hereof and will be binding upon the receiving party’s\nheirs, successors and assigns after such termination or expiration; provided that the rights and obligations in Section 7 shall expire as set forth\ntherein.\n10. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the address set forth in the opening\nparagraph above (unless either provides written notice of a different address) and will be deemed given: (a) upon delivery if sent by overnight\ncourier; or (b) three (3) days after deposit in the mail if sent by pre-paid, certified mail, return receipt requested mail.\n11. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement. This\nAgreement supersedes all previous agreements between the parties relating to the subject matter hereof. The headings to sections of this\nAgreement are inserted for convenience only and will not be deemed a part hereof or affect the construction or interpretation of any provision\nhereof. No provision of this Agreement will be deemed waived, amended or modified by either party, unless such waiver, amendment or\nmodification is made in writing and signed by both parties. This Agreement will be governed by and construed in accordance with the laws of the\nState of Delaware, without reference to conflict of laws principles. Any dispute under this Agreement may be brought in the state courts and the\nFederal courts located in the State of Delaware, and the parties hereby consent to the personal jurisdiction and venue of these courts. Each party\nacknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the\nreceiving party or its Affiliates or representatives and that the disclosing party shall be entitled to equitable relief, including injunction and specific\nperformance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use\nits best efforts to cause its Affiliates and representatives to waive any requirement for the securing or posting of any bond in connection with any\nsuch remedy. Such remedies shall not be the exclusive\n-5-\nremedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. If any provision of this\nAgreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement\nunenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such\nunenforceable or invalid provision within the limits of applicable law or applicable court decisions. Neither party will assign or transfer any rights\nor obligations under this Agreement without the prior written consent of the other party, provided that a party may assign this Agreement to an\nAffiliate or successor without the consent of the other party in connection with a merger, reorganization, consolidation, change of control, sale of\nsubstantially all assets or similar transaction of the assigning party. Neither party will export, directly or indirectly, any technical data acquired\nfrom the other pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency\nthereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval. This\nAgreement may be executed in one (1) or more counterparts, each of which shall be an original and all of which together shall constitute one and\nthe same document. Signatures delivered by facsimile, PDF or electronic mail shall be as effective as original signatures.\n*\n*\n*\n-6-\nIN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as of the Effective Date.\nSPARK THERAPEUTICS, INC.\nROCHE HOLDINGS INC.\nBy: /s/ Joseph W. LaBarge\nBy: /s/ Bruce Resnick\nName: Joseph W. LaBarge\nName: Bruce Resnick\nTitle: Chief Legal Officer\nTitle: Vice President	EX-99.(D)(2) 8 d642137dex99d2.htm EX-99.(D)(2)\nExhibit 99.(d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE A GREEMENT (this “Agreement”), entered into as of October 9, 2018 (the “Effective Date”), governs the\ndisclosure of information by and between Spark Therapeutics, Inc., a Delaware corporation, having an address at 3737 Market Street, Suite 1300,\nPhiladelphia, PA (“Spark”), and Roche Holdings Inc, a Delaware company having an address at 1 DNA Way, South San Francisco, CA 94080\n(“Company”). For purposes of this Agreement, references to each of Spark and Company, and corresponding references to disclosing party and\nreceiving party herein, shall include the respective subsidiaries and other entities controlled, directly or indirectly by Spark or Company, as the case may\nbe; provided, however, with respect to Company, the foregoing provision shall exclude Chugai Pharmaceutical Co., Ltd, 1-1 Nihonbashi-Muromachi\n2-chome, Chuo-ku, Tokyo, 103-8324 (“Chugai”) unless the Company opts for such inclusion of Chugai and their respective subsidiaries by giving\nwritten notice to the Company.\n1. Purpose. This Agreement is made in order for each party to disclose to the other, during the term of this Agreement, such scientific, technical,\nbusiness and financial information as the disclosing party may elect to disclose so that the receiving party may use the same solely for the purpose\nof evaluating the Confidential Information internally in connection with evaluating a possible transaction between the parties relating to one, more\nor all of Spark’s gene therapy product candidates and/or assets (the “Purpose”) under terms that will protect the confidential and proprietary\nnature of such information.\n2. Confidential Information. As used herein, “Confidential Information” will mean any and all scientific, technical, business and financial\ninformation, including third party information, that is furnished or disclosed, in whatever form or medium (regardless of whether tangible,\nintangible, visual, or oral), to the receiving party, before or after the Effective Date. “Confidential Information” includes but is not limited to:\n(a) patent and patent applications; (b) manufacturing, including process and know-how; (c) clinical trial design or results; (d) vendors; (e) trade\nsecrets; and (f) other proprietary information, ideas, gene sequences, cell lines, samples, chemical compounds, assays, biological materials,\ntechniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, and formulae related to\nthe current, future, and proposed products and services of each of the parties, and including without limitation, their respective information\nconcerning research, experimental work, development, design details and specifications, engineering, financial information, procurement\nrequirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, analyst\nreports, sales and merchandising, marketing plans and any additional non-public information the disclosing party provides.\n3. Obligations. Each receiving party agrees: (a) to use the disclosing party’s Confidential Information solely for the Purpose stated above and\nfor no other reason; (b) to protect the confidentiality of the disclosing party’s Confidential Information; (c) not to disclose any of the disclosing\nparty’s Confidential Information to anyone, except those employees, consultants or representatives of the receiving party or its\nAffiliates who have a “need to know” the information for the Purpose and who have signed confidentiality agreements or are otherwise bound by\nconfidentiality and non-use obligations at least as restrictive as those contained herein; and (d) to notify appropriately such employees, consultants\nand representatives of the receiving party or its Affiliates that the disclosure is made in confidence and under the applicable confidentiality\nobligations. The receiving party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its employees,\nconsultants or representatives. Each receiving party agrees that in the event permission is granted by the disclosing party to copy Confidential\nInformation, each such copy will contain and state the same confidential or proprietary notices or legends, if any, that appear on the original.\n4. Exceptions. The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that the receiving\nparty can establish by competent evidence acceptable under applicable law and as deemed appropriate by the competent court: (a) is already\nknown to the receiving party prior to the disclosing party’s disclosure; (b) is or becomes publicly available through no fault of the receiving party;\n(c) is obtained by the receiving party from a third party; or (d) is independently developed by the receiving party without use of or reference to any\nConfidential Information. Notwithstanding the foregoing, (i) any Confidential Information shall not be deemed to be within the foregoing\nexceptions merely because such information is embraced by more general information in the public domain or in the possession of the receiving\nparty, and (ii) any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the\npublic domain or in the possession of the receiving party, but only if the combination itself and its principle of operation are in the public domain\nor in the possession of the receiving party. Notwithstanding anything contained in this Agreement, other than in the case of an External Demand\n(as defined below), the receiving party may disclose either the fact that discussions or negotiations are taking place concerning the Purpose or any\nof the terms, conditions or other facts with respect to the Purpose, including the status thereof or that Confidential Information has been made\navailable to the receiving party (such information, “Transaction Information”) if but only if (i) such disclosure is required under applicable\nsecurities or antitrust laws or under applicable stock exchange rules as determined based on advice of legal counsel and (ii) such disclosure\nrequirement does not arise from a breach of this Agreement. In the event the receiving party receives a request or is required by deposition,\ninterrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory\nexaminer (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Confidential Information of the\ndisclosing party or the Transaction Information, the receiving party shall (1) immediately notify the disclosing party of the existence, terms and\ncircumstances surrounding such External Demand, (2) consult with the disclosing party on the advisability of taking legally available steps to\nresist or narrow such request or disclosure, and (3) assist the disclosing party, at the disclosing party’s expense, in seeking a protective order or\nother appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or\nthat the disclosing party waives compliance with the provisions hereof, (x) the receiving party may disclose only that portion of the Confidential\nInformation or Transaction Information which the receiving party is advised by counsel is legally\n-\nrequired to be disclosed and to only those persons to whom the receiving party is advised by counsel are legally required to receive such\ninformation, and the receiving party shall exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded\nsuch Confidential Information or Transaction Information, and (y) the receiving party shall not be liable for such disclosure, unless such\ndisclosure was caused by or resulted from a previous disclosure by the receiving party not permitted by this Agreement.\n5. Handling of Information and Materials. Confidential Information will not be reproduced in any form except as required to accomplish the\nPurpose of this Agreement. Any reproduction of any Confidential Information of the disclosing party will remain the property of the disclosing\nparty and will contain and state any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized\nin writing by the disclosing party. Upon termination or expiration of this Agreement, or upon written request of the disclosing party, each\nreceiving party will promptly destroy (to the extent reasonably practicable in case of electronic files) or return to the other all documents and other\ntangible materials representing the disclosing party’s Confidential Information and all copies thereof. Notwithstanding the forgoing the receiving\nparty may retain one copy of all Confidential Information in its legal department solely for archival and compliance purposes and its external\nadvisors, if any, may keep one copy of their Confidential Information in accordance with the laws and professional standards applicable to them.\n6. No Other Rights. The parties recognize and agree that nothing contained in this Agreement will be construed as granting any property rights,\nby license or otherwise, to any Confidential Information of the disclosing party disclosed pursuant to this Agreement, or to any invention or any\npatent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Each\nreceiving party will not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any\nConfidential Information of the disclosing party.\n7. Standstill. Company hereby acknowledges that, unless otherwise agreed in writing by Spark, for a period of twelve (12) months from the date\nof this Agreement (the “Restricted Period”) none of Company, nor any of its Affiliates (as defined in Rule 12b-2 under the Securities Exchange\nAct of 1934, as amended) who are provided with Confidential Information or become aware of Company’s discussions with Spark, will:\n(a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of Spark’s assets or businesses, or similar\ntransactions involving Spark or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to Spark; (b) (i)\nacquire beneficial ownership of any voting securities (including in derivative form) of Spark (collectively, a transaction specified in (a)(i), (a)(ii)\nand (b)(i) involving a majority of Spark’s outstanding voting securities or consolidated assets, is referred to as a “Business Combination”), (ii)\npropose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange\nCommission) of proxies or consents to vote any securities (including in derivative form) of Spark, (iii) nominate any person as a director of Spark,\nor (iv)\n3-\npropose any matter to be voted upon by the stockholders of Spark; (c) directly or indirectly, form, join or in any way participate in a third party\n“group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a\ngroup) with respect to any voting securities (including in derivative form) of Spark or a Business Combination involving Spark; (d) request Spark\n(or any of its officers, directors or representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this\nsentence) in a way which would require Spark to publicly disclose the same; or (d) take any action that could require Spark to make a public\nannouncement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit Company from make\na confidential proposal to Spark or Spark’s Chairman of the Board of Directors for a transaction involving a Business Combination at any time for\na transaction involving a Business Combination. Notwithstanding the foregoing provisions of this paragraph to the contrary, the foregoing\nrestrictions set forth in this paragraph shall immediately and automatically terminate and cease to apply with respect to Company and its Affiliates\nwithout any further action in the event that (A) Spark’s board of directors (or a committee thereof) approves, or Spark enters into a definitive\nagreement providing for, a Business Combination, (B) a third party commences, or announces an intention to commence, a tender or exchange\noffer, the consummation of which would constitute a Business Combination and (i) the board of directors (or a committee thereof) of Spark at any\ntime recommends, or publicly discloses an intention to recommend, that Spark’s shareholders tender their shares into such tender or exchange\noffer (as it may have been amended), or (ii) the board of directors (or a committee thereof) of Spark does not, within ten business days from the\ndate such offer is first published, sent or given to shareholders, recommend that Spark’s shareholders not tender their shares into such tender or\nexchange offer (as it may have been amended) or at any time thereafter changes its recommendation with respect to such tender or exchange offer\n(as it may have been amended) or takes any similar action that results in such board of directors no longer recommending that Spark’s\nshareholders not tender their shares into such tender or exchange offer, (C) any person or “group” (as such term is used under the Exchange Act)\ncommences, Or announces an intention to commence, any “solicitation” of “proxies” (as such terms are used under the Exchange Act) or consents\nwith respect to the voting securities of Spark in which such person or group would, if successful, elect or acquire the ability to elect a majority of\nthe members of the board of directors of Spark or result in a majority of the seats of the board of directors of Spark becoming vacant, or (D) with\nrespect to any pending tender offer or exchange offer for shares of Spark, the consummation of which would constitute a Business Combination,\nSpark’s board of directors (or any committee thereof) no longer recommends that its shareholders tender their shares into such tender or exchange\noffer (as it may have been amended). The parties further acknowledge that Spark may enter into additional standstill agreements similar to the\nprovision in this paragraph with third parties in connection with such third parties evaluating a possible transaction with Spark (“Other Standstill\nAgreement”), and the parties hereby agree that, to the extent that any such Other Standstill Agreement contains provisions that are more favorable\nto the third party than the provisions in this paragraph, this Agreement shall be deemed automatically amended to incorporate such more favorable\nterms as set forth in the Other Standstill Agreement. Following the expiration of the Restricted Period, no provision of this\n4-\nagreement shall restrict Company or its Affiliates, directly or indirectly, from taking any action described in this paragraph 7 (including using for\nthe purpose of such action, but not otherwise disclosing any Confidential Information). For the avoidance of doubt, nothing in this paragraph 7\nshall prevent the Company from entering into license, collaboration or other similar agreements in the ordinary course of business.\n8. Passive Investments. The provisions of paragraph 7 shall not prohibit, Company or its Affiliates from owning and/or acquiring voting shares\nor other ownership interests in Spark provided that Company together with its Affiliates owns, in the aggregate, not more 5% of such voting\nsecurities. The provisions of paragraph 7 shall not prohibit passive investments by a pension or employee benefit plan or trust for Company’s or its\nAffiliates employees so long as such investments are directed by independent trustees, administrators or employees to whom no Confidential\nInformation has been disclosed.\n9. Term and Termination. This Agreement will terminate one (1) year after the Effective Date, or may be terminated by either party at any time\nupon thirty (30) days written notice to the other party. The receiving party’s obligations under this Agreement will survive termination or\nexpiration of this Agreement for a period of five (5) years after the termination or expiration hereof and will be binding upon the receiving party’s\nheirs, successors and assigns after such termination or expiration; provided that the rights and obligations in Section 7 shall expire as set forth\ntherein.\n10. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the address set forth in the opening\nparagraph above (unless either provides written notice of a different address) and will be deemed given: (a) upon delivery if sent by overnight\ncourier; or (b) three (3) days after deposit in the mail if sent by pre-paid, certified mail, return receipt requested mail.\n11. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement. This\nAgreement supersedes all previous agreements between the parties relating to the subject matter hereof. The headings to sections of this\nAgreement are inserted for convenience only and will not be deemed a part hereof or affect the construction or interpretation of any provision\nhereof. No provision of this Agreement will be deemed waived, amended or modified by either party, unless such waiver, amendment or\nmodification is made in writing and signed by both parties. This Agreement will be governed by and construed in accordance with the laws of the\nState of Delaware, without reference to conflict of laws principles. Any dispute under this Agreement may be brought in the state courts and the\nFederal courts located in the State of Delaware, and the parties hereby consent to the personal jurisdiction and venue of these courts. Each party\nacknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the\nreceiving party or its Affiliates or representatives and that the disclosing party shall be entitled to equitable relief, including injunction and specific\nperformance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use\nits best efforts to cause its Affiliates and representatives to waive any requirement for the securing or posting of any bond in connection with any\nsuch remedy. Such remedies shall not be the exclusive\n-5-\nremedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. If any provision of this\nAgreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement\nunenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such\nunenforceable or invalid provision within the limits of applicable law or applicable court decisions. Neither party will assign or transfer any rights\nor obligations under this Agreement without the prior written consent of the other party, provided that a party may assign this Agreement to an\nAffiliate or successor without the consent of the other party in connection with a merger, reorganization, consolidation, change of control, sale of\nsubstantially all assets or similar transaction of the assigning party. Neither party will export, directly or indirectly, any technical data acquired\nfrom the other pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency\nthereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval. This\nAgreement may be executed in one (1) or more counterparts, each of which shall be an original and all of which together shall constitute one and\nthe same document. Signatures delivered by facsimile, PDF or electronic mail shall be as effective as original signatures.\n-6-\nIN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as of the Effective Date.\nSPARK THERAPEUTICS, INC. ROCHE HOLDINGS INC.\nBy: /s/ Joseph W. LaBarge By: /s/ Bruce Resnick\nName: Joseph W. LaBarge Name: Bruce Resnick\nTitle:  Chief Legal Officer Title:  Vice President	EX-99.(D)(2) 8 d642137dex99d2.htm EX-99.(D)(2)\nExhibit 99.(d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this "Agreement"), entered into as of October 9, 2018 (the "Effective Date"), governs the\ndisclosure of information by and between Spark Therapeutics, Inc., a Delaware corporation, having an address at 3737 Market Street, Suite 1300,\nPhiladelphia, PA ("Spark"), and Roche Holdings Inc, a Delaware company having an address at 1 DNA Way, South San Francisco, CA 94080\n("Company"). For purposes of this Agreement, references to each of Spark and Company, and corresponding references to disclosing party and\nreceiving party herein, shall include the respective subsidiaries and other entities controlled, directly or indirectly by Spark or Company, as the case may\nbe; provided, however, with respect to Company, the foregoing provision shall exclude Chugai Pharmaceutical Co., Ltd, 1-1 Nihonbashi-Muromachi\n2-chome, Chuo-ku, Tokyo, 103-8324 ("Chugai") unless the Company opts for such inclusion of Chugai and their respective subsidiaries by giving\nwritten notice to the Company.\n1.\nPurpose. This Agreement is made in order for each party to disclose to the other, during the term of this Agreement, such scientific, technical,\nbusiness and financial information as the disclosing party may elect to disclose so that the receiving party may use the same solely for the purpose\nof\nevaluating the Confidentia Information internally in connection with evaluating a possible transaction between the parties relating to one, more\nor all of Spark's gene therapy product candidates and/or assets (the "Purpose") under terms that will protect the confidential and proprietary\nnature of such information.\n2.\nConfidential Information. As used herein, "Confidential Information" will mean any and all scientific, technical, business and financial\ninformation, including third party information, that is furnished or disclosed, in whatever form or medium (regardless of whether tangible,\nintangible, visual, or oral), to the receiving party, before or after the Effective Date. "Confidential Information" includes but is not limited to:\n(a) patent and patent applications; (b) manufacturing, including process and know-how; (c) clinical trial design or results; (d) vendors; (e) trade\nsecrets; and (f) other proprietary information, ideas, gene sequences, cell lines, samples, chemical compounds, assays, biological materials,\ntechniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, and formulae related to\nthe current, future, and proposed products and services of each of the parties, and including without limitation, their respective information\nconcerning research, experimental work, development, design details and specifications, engineering, financial information, procurement\nrequirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, analyst\nreports, sales and merchandising, marketing plans and any additional non-public information the disclosing party provides.\n3. Obligations. Each receiving party agrees: (a) to use the disclosing party's Confidential Information solely for the Purpose stated above and\nfor no other reason; (b) to protect the confidentiality of the disclosing party's Confidential Information; (c) not to disclose any of the disclosing\nparty's Confidential Information to anyone, except those employees, consultants or representatives of the receiving party or its\nAffiliates who have a "need to know" the information for the Purpose and who have signed confidentiality agreements or are otherwise bound by\nconfidentiality and non-use obligations at least as restrictive as those contained herein; and (d) to notify appropriately such employees, consultants\nand representatives of the receiving party or its Affiliates that the disclosure is made in confidence and under the applicable confidentiality\nobligations. The receiving party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its employees,\nconsultants or representatives. Each receiving party agrees that in the event permission is granted by the disclosing party to copy Confidential\nInformation, each such copy will contain and state the same confidential or proprietary notices or legends, if any, that appear on the original.\n4. Exceptions. The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that the receiving\nparty can establish by competent evidence acceptable under applicable law and as deemed appropriate by the competent court: (a) is already\nknown to the receiving party prior to the disclosing party's disclosure; (b) is or becomes publicly available through no fault of the receiving party;\n(c) is obtained by the receiving party from a third party; or (d) is independently developed by the receiving party without use of or reference to any\nConfidential Information. Notwithstanding the foregoing, (i) any Confidential Information shall not be deemed to be within the foregoing\nexceptions merely because such information is embraced by more general information in the public domain or in the possession of the receiving\nparty, and (ii) any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the\npublic domain or in the possession of the receiving party, but only if the combination itself and its principle of operation are in the public domain\nor in the possession of the receiving party. Notwithstanding anything contained in this Agreement, other than in the case of an External Demand\n(as defined below), the receiving party may disclose either the fact that discussions or negotiations are taking place concerning the Purpose or any\nof the terms, conditions or other facts with respect to the Purpose, including the status thereof or that Confidentia Information has been made\navailable to the receiving party (such information, "Transaction Information") if but only if (i) such disclosure is required under applicable\nsecurities or antitrust laws or under applicable stock exchange rules as determined based on advice of legal counsel and (ii) such disclosure\nrequirement does not arise from a breach of this Agreement. In the event the receiving party receives a request or is required by deposition,\ninterrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory\nexaminer (any such requested or required disclosure, an "External Demand") to disclose all or any part of the Confidential Information of the\ndisclosing party or the Transaction Information, the receiving party shall (1) immediately notify the disclosing party of the existence, terms and\ncircumstances surrounding such External Demand, (2) consult with the disclosing party on the advisability of taking legally available steps to\nresist or narrow such request or disclosure, and (3) assist the disclosing party, at the disclosing party's expense, in seeking a protective order\nor\nother appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or\nthat the disclosing party waives compliance with the provisions hereof, (x) the receiving party may disclose only that portion of the Confidential\nInformation or Transaction Information which the receiving party is advised by counsel is legally\n-2-\nrequired to be disclosed and to only those persons to whom the receiving party is advised by counsel are legally required to receive such\ninformation, and the receiving party shall exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded\nsuch Confidential Information or Transaction Information, and (y) the receiving party shall not be liable for such disclosure, unless such\ndisclosure was caused by or resulted from a previous disclosure by the receiving party not permitted by this Agreement.\n5.\nHandling of Information and Materials. Confidential Information will not be reproduced in any form except as required to accomplish the\nPurpose of this Agreement. Any reproduction of any Confidential Information of the disclosing party will remain the property of the disclosing\nparty and will contain and state any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized\nin writing by the disclosing party. Upon termination or expiration of this Agreement, or upon written request of the disclosing party, each\nreceiving party will promptly destroy (to the extent reasonably practicable in case of electronic files) or return to the other all documents and other\ntangible materials representing the disclosing party's Confidential Information and all copies thereof. Notwithstanding the forgoing the receiving\nparty may retain one copy of all Confidential Information in its legal department solely for archival and compliance purposes and its external\nadvisors, if any, may keep one copy of their Confidential Information in accordance with the laws and professional standards applicable to them.\n6. No Other Rights. The parties recognize and agree that nothing contained in this Agreement will be construed as granting any property rights,\nby\nlicense\nor\notherwise,\nto\nany\nConfidential\nInformation\nof\nthe\ndisclosing\nparty\ndisclosed\npursuant\nto\nthis\nAgreement,\nor\nto\nany\ninvention\nor\nany\npatent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Each\nreceiving party will not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any\nConfidential Information of the disclosing party.\n7. Standstill. Company hereby acknowledges that, unless otherwise agreed in writing by Spark, for a period of twelve (12) months from the date\nof this Agreement (the "Restricted Period") none of Company, nor any of its Affiliates (as defined in Rule 12b-2 under the Securities Exchange\nAct of 1934, as amended) who are provided with Confidential Information or become aware of Company's discussions with Spark, will:\n(a)\npropose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of Spark's assets or businesses, or similar\ntransactions involving Spark or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to Spark; (b) (i)\nacquire beneficial ownership of any voting securities (including in derivative form) of Spark (collectively, a transaction specified in (a)(i), (a)(ii)\nand (b)(i) involving a majority of Spark's outstanding voting securities or consolidated assets, is referred to as a "Business Combination") (ii)\npropose or seek, whether alone or in concert with others, any "'solicitation" (as such term is used in the rules of the Securities and Exchange\nCommission) of proxies or consents to vote any securities (including in derivative form) of Spark, (iii) nominate any person as a director of Spark,\nor (iv)\n-3-\npropose any matter to be voted upon by the stockholders of Spark; (c) directly or indirectly, form, join or in any way participate in a third party\n"group" (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a\ngroup)\nwith\nrespect\nto\nany\nvoting\nsecurities\n(including\nin\nderivative\nform)\nof\nSpark\nor\na\nBusiness\nCombination\ninvolving\nSpark;\n(d)\nrequest\nSpark\n(or any of its officers, directors or representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this\nsentence) in a way which would require Spark to publicly disclose the same; or (d) take any action that could require Spark to make a public\nannouncement\nregarding\na\npotential\nBusiness\nCombination;\nprovided,\nhowever,\nthat\nnothing\nin\nthis\nparagraph\nshall\nprohibit\nCompany\nfrom\nmake\na confidential proposal to Spark or Spark's Chairman of the Board of Directors for a transaction involving a Business Combination at any time for\na transaction involving a Business Combination. Notwithstanding the foregoing provisions of this paragraph to the contrary, the foregoing\nrestrictions\nset\nforth in this paragraph shall immediately and automatically terminate and cease to apply with respect to Company and its\nAffiliates\nwithout any further action in the event that (A) Spark's board of directors (or a committee thereof) approves, or Spark enters into a definitive\nagreement providing for, a Business Combination, (B) a third party commences, or announces an intention to commence, a tender or exchange\noffer,\nthe\nconsummation\nof\nwhich\nwould\nconstitute\na\nBusiness\nCombination\nand\n(i)\nthe\nboard\nof\ndirectors\n(or\na\ncommittee\nthereof)\nof\nSpark\nat\nany\ntime recommends, or publicly discloses an intention to recommend, that Spark's shareholders tender their shares into such tender or exchange\noffer (as it may have been amended), or (ii) the board of directors (or a committee thereof) of Spark does not, within ten business days from the\ndate such offer is first published, sent or given to shareholders, recommend that Spark's shareholders not tender their shares into such tender or\nexchange offer (as it may have been amended) or at any time thereafter changes its recommendation with respect to such tender or exchange offer\n(as it may have been amended) or takes any similar action that results in such board of directors no longer recommending that Spark's\nshareholders not tender their shares into such tender or exchange offer, (C) any person or "group" (as such term is used under the Exchange Act)\ncommences, or announces an intention to commence, any "solicitation" of "proxies" (as such terms are used under the Exchange Act) or consents\nwith respect to the voting securities of Spark in which such person or group would, if successful, elect or acquire the ability to elect a majority\nof\nthe members of the board of directors of Spark or result in a majority of the seats of the board of directors of Spark becoming vacant, or (D) with\nrespect to any pending tender offer or exchange offer for shares of Spark, the consummation of which would constitute a Business Combination,\nSpark's board of directors (or any committee thereof) no longer recommends that its shareholders tender their shares into such tender or exchange\noffer (as it may have been amended). The parties further acknowledge that Spark may enter into additional standstill agreements similar to the\nprovision in this paragraph with third parties in connection with such third parties evaluating a possible transaction with Spark ("Other Standstill\nAgreement"), and the parties hereby agree that, to the extent that any such Other Standstill Agreement contains provisions that are more favorable\nto the third party than the provisions in this paragraph, this Agreement shall be deemed automatically amended to incorporate such more favorable\nterms as set forth in the Other Standstill Agreement. Following the expiration of the Restricted Period, no provision of this\n-4-\nagreement shall restrict Company or its Affiliates, directly or indirectly, from taking any action described in this paragraph 7 (including using for\nthe purpose of such action, but not otherwise disclosing any Confidential Information). For the avoidance of doubt, nothing in this paragraph\n7\nshall prevent the Company from entering into license, collaboration or other similar agreements in the ordinary course of business.\n8. Passive Investments. The provisions of paragraph 7 shall not prohibit, Company or its Affiliates from owning and/or acquiring voting shares\nor other ownership interests in Spark provided that Company together with its Affiliates owns, in the aggregate, not more 5% of such voting\nsecurities. The provisions of paragraph 7 shall not prohibit passive investments by a pension or employee benefit plan or trust for Company's or its\nAffiliates employees so long as such investments are directed by independent trustees, administrators or employees to whom no Confidential\nInformation has been disclosed.\n9. Term and Termination. This Agreement will terminate one (1) year after the Effective Date, or may be terminated by either party at any time\nupon thirty (30) days written notice to the other party. The receiving party's obligations under this Agreement will survive termination or\nexpiration\nof\nthis\nAgreement\nfor\na\nperiod\nof\nfive\n(5)\nyears\nafter\nthe\ntermination\nor\nexpiration\nhereof\nand\nwill\nbe\nbinding\nupon\nthe\nreceiving\nparty's\nheirs, successors and assigns after such termination or expiration; provided that the rights and obligations in Section 7 shall expire as set forth\ntherein.\n10. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the address set forth in the opening\nparagraph above (unless either provides written notice of a different address) and will be deemed given: (a) upon delivery if sent by overnight\ncourier; or (b) three (3) days after deposit in the mail if sent by pre-paid, certified mail, return receipt requested mail.\n11. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement. This\nAgreement supersedes all previous agreements between the parties relating to the subject matter hereof. The headings to sections of this\nAgreement are inserted for convenience only and will not be deemed a part hereof or affect the construction or interpretation of any provision\nhereof. No provision of this Agreement will be deemed waived, amended or modified by either party, unless such waiver, amendment or\nmodification is made in writing and signed by both parties. This Agreement will be governed by and construed in accordance with the laws of\nthe\nState of Delaware, without reference to conflict of laws principles. Any dispute under this Agreement may be brought in the state courts and the\nFederal courts located in the State of Delaware, and the parties hereby consent to the personal jurisdiction and venue of these courts. Each party\nacknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the\nreceiving party or its Affiliates or representatives and that the disclosing party shall be entitled to equitable relief, including injunction and specific\nperformance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use\nits best efforts to cause its Affiliates and representatives to waive any requirement for the securing or posting of any bond in connection with any\nsuch remedy. Such remedies shall not be the exclusive\n-5-\nremedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. If any provision of this\nAgreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement\nunenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such\nunenforceable or invalid provision within the limits of applicable law or applicable court decisions. Neither party will assign or transfer any rights\nor obligations under this Agreement without the prior written consent of the other party, provided that a party may assign this Agreement to an\nAffiliate or successor without the consent of the other party in connection with a merger, reorganization, consolidation, change of control,\nsale\nof\nsubstantially all assets or similar transaction of the assigning party. Neither party will export, directly or indirectly, any technical data acquired\nfrom the other pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency\nthereof at the time of export requires an export license or other governmenta approval without first obtaining such license or approval. This\nAgreement may be executed in one (1) or more counterparts, each of which shall be an original and all of which together shall constitute one and\nthe same document. Signatures delivered by facsimile, PDF or electronic mail shall be as effective as original signatures.\n*\n-6-\nIN\nWITNESS WHEREOF, duly authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as of the Effective Date.\nSPARK THERAPEUTICS, INC.\nROCHE HOLDINGS INC.\nBy: /s/ Joseph W. LaBarge\nBy: /s/ Bruce Resnick\nName: Joseph W. LaBarge\nName: Bruce Resnick\nTitle: Chief Legal Officer\nTitle: Vice President	EX-99.(D)(2) 8 d642137dex99d2.htm EX-99 .(D)(2)\nExhibit 99.(d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE A GREEMENT (this “Agreement”), entered into as of October 9, 2018 (the “Effective Date”), governs the\ndisclosure of information by and between Spark Therapeutics, Inc., a Delaware corporation, having an address at 3737 Market Street, Suite 1300,\nPhiladelphia, PA (“Spark”), and Roche Holdings Inc, a Delaware company having an address at 1 DNA Way, South San Francisco, CA 94080\n(“Company”). For purposes of this Agreement, references to each of Spark and Company, and corresponding references to disclosing party and\nreceiving party herein, shall include the respective subsidiaries and other entities controlled, directly or indirectly by Spark or Company, as the case may\nbe; provided, however, with respect to Company, the foregoing provision shall exclude Chugai Pharmaceutical Co., Ltd, 1-1 Nihonbashi-Muromachi\n2-chome, Chuo-ku, Tokyo, 103-8324 (“Chugai”) unless the Company opts for such inclusion of Chugai and their respective subsidiaries by giving\nwritten notice to the Company.\n1. Purpose. This Agreement is made in order for each party to disclose to the other, during the term of this Agreement, such scientific, technical,\nbusiness and financial information as the disclosing party may elect to disclose so that the receiving party may use the same solely for the purpose\nof evaluating the Confidential Information internally in connection with evaluating a possible transaction between the parties relating to one, more\nor all of Spark’s gene therapy product candidates and/or assets (the “Purpose”) under terms that will protect the confidential and proprietary\nnature of such information.\n2. Confidential Information. As used herein, “Confidential Information” will mean any and all scientific, technical, business and financial\ninformation, including third party information, that is furnished or disclosed, in whatever form or medium (regardless of whether tangible,\nintangible, visual, or oral), to the receiving party, before or after the Effective Date. “Confidential Information” includes but is not limited to:\n(a) patent and patent applications; (b) manufacturing, including process and know-how; (c) clinical trial design or results; (d) vendors; (e) trade\nsecrets; and (f) other proprietary information, ideas, gene sequences, cell lines, samples, chemical compounds, assays, biological materials,\ntechniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, and formulae related to\nthe current, future, and proposed products and services of each of the parties, and including without limitation, their respective information\nconcerning research, experimental work, development, design details and specifications, engineering, financial information, procurement\nrequirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, analyst\nreports, sales and merchandising, marketing plans and any additional non-public information the disclosing party provides.\n3. Obligations. Each receiving party agrees: (a) to use the disclosing party’s Confidential Information solely for the Purpose stated above and\nfor no other reason; (b) to protect the confidentiality of the disclosing party’s Confidential Information; (c) not to disclose any of the disclosing\nparty’s Confidential Information to anyone, except those employees, consultants or representatives of the receiving party or its\nAffiliates who have a “need to know” the information for the Purpose and who have signed confidentiality agreements or are otherwise bound by\nconfidentiality and non-use obligations at least as restrictive as those contained herein; and (d) to notify appropriately such employees, consultants\nand representatives of the receiving party or its Affiliates that the disclosure is made in confidence and under the applicable confidentiality\nobligations. The receiving party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its employees,\nconsultants or representatives. Each receiving party agrees that in the event permission is granted by the disclosing party to copy Confidential\nInformation, each such copy will contain and state the same confidential or proprietary notices or legends, if any, that appear on the original.\n4. Exceptions. The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that the receiving\nparty can establish by competent evidence acceptable under applicable law and as deemed appropriate by the competent court: (a) is already\nknown to the receiving party prior to the disclosing party’s disclosure; (b) is or becomes publicly available through no fault of the receiving party;\n(c) is obtained by the receiving party from a third party; or (d) is independently developed by the receiving party without use of or reference to any\nConfidential Information. Notwithstanding the foregoing, (i) any Confidential Information shall not be deemed to be within the foregoing\nexceptions merely because such information is embraced by more general information in the public domain or in the possession of the receiving\nparty, and (ii) any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the\npublic domain or in the possession of the receiving party, but only if the combination itself and its principle of operation are in the public domain\nor in the possession of the receiving party. Notwithstanding anything contained in this Agreement, other than in the case of an External Demand\n(as defined below), the receiving party may disclose either the fact that discussions or negotiations are taking place concerning the Purpose or any\nof the terms, conditions or other facts with respect to the Purpose, including the status thereof or that Confidential Information has been made\navailable to the receiving party (such information, “Transaction Information”) if but only if (i) such disclosure is required under applicable\nsecurities or antitrust laws or under applicable stock exchange rules as determined based on advice of legal counsel and (ii) such disclosure\nrequirement does not arise from a breach of this Agreement. In the event the receiving party receives a request or is required by deposition,\ninterrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory\nexaminer (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Confidential Information of the\ndisclosing party or the Transaction Information, the receiving party shall (1) immediately notify the disclosing party of the existence, terms and\ncircumstances surrounding such External Demand, (2) consult with the disclosing party on the advisability of taking legally available steps to\nresist or narrow such request or disclosure, and (3) assist the disclosing party, at the disclosing party’s expense, in seeking a protective order or\nother appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or\nthat the disclosing party waives compliance with the provisions hereof, (x) the receiving party may disclose only that portion of the Confidential\nInformation or Transaction Information which the receiving party is advised by counsel is legally\n-2-\nrequired to be disclosed and to only those persons to whom the receiving party is advised by counsel are legally required to receive such\ninformation, and the receiving party shall exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded\nsuch Confidential Information or Transaction Information, and (y) the receiving party shall not be liable for such disclosure, unless such\ndisclosure was caused by or resulted from a previous disclosure by the receiving party not permitted by this Agreement.\n5. Handling of Information and Materials. Confidential Information will not be reproduced in any form except as required to accomplish the\nPurpose of this Agreement. Any reproduction of any Confidential Information of the disclosing party will remain the property of the disclosing\nparty and will contain and state any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized\nin writing by the disclosing party. Upon termination or expiration of this Agreement, or upon written request of the disclosing party, each\nreceiving party will promptly destroy (to the extent reasonably practicable in case of electronic files) or return to the other all documents and other\ntangible materials representing the disclosing party’s Confidential Information and all copies thereof. Notwithstanding the forgoing the receiving\nparty may retain one copy of all Confidential Information in its legal department solely for archival and compliance purposes and its external\nadvisors, if any, may keep one copy of their Confidential Information in accordance with the laws and professional standards applicable to them.\n6. No Other Rights. The parties recognize and agree that nothing contained in this Agreement will be construed as granting any property rights,\nby license or otherwise, to any Confidential Information of the disclosing party disclosed pursuant to this Agreement, or to any invention or any\npatent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Each\nreceiving party will not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any\nConfidential Information of the disclosing party.\n7. Standstill. Company hereby acknowledges that, unless otherwise agreed in writing by Spark, for a period of twelve (12) months from the date\nof this Agreement (the “Restricted Period”) none of Company, nor any of its Affiliates (as defined in Rule 12b-2 under the Securities Exchange\nAct of 1934, as amended) who are provided with Confidential Information or become aware of Company’s discussions with Spark, will:\n(a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of Spark’s assets or businesses, or similar\ntransactions involving Spark or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to Spark; (b) (i)\nacquire beneficial ownership of any voting securities (including in derivative form) of Spark (collectively, a transaction specified in (a)(i), (a)(ii)\nand (b)(i) involving a majority of Spark’s outstanding voting securities or consolidated assets, is referred to as a “Business Combination”), (ii)\npropose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange\nCommission) of proxies or consents to vote any securities (including in derivative form) of Spark, (iii) nominate any person as a director of Spark,\nor (iv)\n-3-\npropose any matter to be voted upon by the stockholders of Spark; (c) directly or indirectly, form, join or in any way participate in a third party\n“group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a\ngroup) with respect to any voting securities (including in derivative form) of Spark or a Business Combination involving Spark; (d) request Spark\n(or any of its officers, directors or representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this\nsentence) in a way which would require Spark to publicly disclose the same; or (d) take any action that could require Spark to make a public\nannouncement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit Company from make\na confidential proposal to Spark or Spark’s Chairman of the Board of Directors for a transaction involving a Business Combination at any time for\na transaction involving a Business Combination. Notwithstanding the foregoing provisions of this paragraph to the contrary, the foregoing\nrestrictions set forth in this paragraph shall immediately and automatically terminate and cease to apply with respect to Company and its Affiliates\nwithout any further action in the event that (A) Spark’s board of directors (or a committee thereof) approves, or Spark enters into a definitive\nagreement providing for, a Business Combination, (B) a third party commences, or announces an intention to commence, a tender or exchange\noffer, the consummation of which would constitute a Business Combination and (i) the board of directors (or a committee thereof) of Spark at any\ntime recommends, or publicly discloses an intention to recommend, that Spark’s shareholders tender their shares into such tender or exchange\noffer (as it may have been amended), or (ii) the board of directors (or a committee thereof) of Spark does not, within ten business days from the\ndate such offer is first published, sent or given to shareholders, recommend that Spark’s shareholders not tender their shares into such tender or\nexchange offer (as it may have been amended) or at any time thereafter changes its recommendation with respect to such tender or exchange offer\n(as it may have been amended) or takes any similar action that results in such board of directors no longer recommending that Spark’s\nshareholders not tender their shares into such tender or exchange offer, (C) any person or “group” (as such term is used under the Exchange Act)\ncommences, or announces an intention to commence, any “solicitation” of “proxies” (as such terms are used under the Exchange Act) or consents\nwith respect to the voting securities of Spark in which such person or group would, if successful, elect or acquire the ability to elect a majority of\nthe members of the board of directors of Spark or result in a majority of the seats of the board of directors of Spark becoming vacant, or (D) with\nrespect to any pending tender offer or exchange offer for shares of Spark, the consummation of which would constitute a Business Combination,\nSpark’s board of directors (or any committee thereof) no longer recommends that its shareholders tender their shares into such tender or exchange\noffer (as it may have been amended). The parties further acknowledge that Spark may enter into additional standstill agreements similar to the\nprovision in this paragraph with third parties in connection with such third parties evaluating a possible transaction with Spark (“Other Standstill\nAgreement”), and the parties hereby agree that, to the extent that any such Other Standstill Agreement contains provisions that are more favorable\nto the third party than the provisions in this paragraph, this Agreement shall be deemed automatically amended to incorporate such more favorable\nterms as set forth in the Other Standstill Agreement. Following the expiration of the Restricted Period, no provision of this\n-4-\nagreement shall restrict Company or its Affiliates, directly or indirectly, from taking any action described in this paragraph 7 (including using for\nthe purpose of such action, but not otherwise disclosing any Confidential Information). For the avoidance of doubt, nothing in this paragraph 7\nshall prevent the Company from entering into license, collaboration or other similar agreements in the ordinary course of business.\n8. Passive Investments. The provisions of paragraph 7 shall not prohibit, Company or its Affiliates from owning and/or acquiring voting shares\nor other ownership interests in Spark provided that Company together with its Affiliates owns, in the aggregate, not more 5% of such voting\nsecurities. The provisions of paragraph 7 shall not prohibit passive investments by a pension or employee benefit plan or trust for Company’s or its\nAffiliates employees so long as such investments are directed by independent trustees, administrators or employees to whom no Confidential\nInformation has been disclosed.\n9. Term and Termination. This Agreement will terminate one (1) year after the Effective Date, or may be terminated by either party at any time\nupon thirty (30) days written notice to the other party. The receiving party’s obligations under this Agreement will survive termination or\nexpiration of this Agreement for a period of five (5) years after the termination or expiration hereof and will be binding upon the receiving party’s\nheirs, successors and assigns after such termination or expiration; provided that the rights and obligations in Section 7 shall expire as set forth\ntherein.\n10. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the address set forth in the opening\nparagraph above (unless either provides written notice of a different address) and will be deemed given: (a) upon delivery if sent by overnight\ncourier; or (b) three (3) days after deposit in the mail if sent by pre-paid, certified mail, return receipt requested mail.\n11. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement. This\nAgreement supersedes all previous agreements between the parties relating to the subject matter hereof. The headings to sections of this\nAgreement are inserted for convenience only and will not be deemed a part hereof or affect the construction or interpretation of any provision\nhereof. No provision of this Agreement will be deemed waived, amended or modified by either party, unless such waiver, amendment or\nmodification is made in writing and signed by both parties. This Agreement will be governed by and construed in accordance with the laws of the\nState of Delaware, without reference to conflict of laws principles. Any dispute under this Agreement may be brought in the state courts and the\nFederal courts located in the State of Delaware, and the parties hereby consent to the personal jurisdiction and venue of these courts. Each party\nacknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the\nreceiving party or its Affiliates or representatives and that the disclosing party shall be entitled to equitable relief, including injunction and specific\nperformance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use\nits best efforts to cause its Affiliates and representatives to waive any requirement for the securing or posting of any bond in connection with any\nsuch remedy. Such remedies shall not be the exclusive\n-5-\nremedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. If any provision of this\nAgreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement\nunenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such\nunenforceable or invalid provision within the limits of applicable law or applicable court decisions. Neither party will assign or transfer any rights\nor obligations under this Agreement without the prior written consent of the other party, provided that a party may assign this Agreement to an\nAffiliate or successor without the consent of the other party in connection with a merger, reorganization, consolidation, change of control, sale of\nsubstantially all assets or similar transaction of the assigning party. Neither party will export, directly or indirectly, any technical data acquired\nfrom the other pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency\nthereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval. This\nAgreement may be executed in one (1) or more counterparts, each of which shall be an original and all of which together shall constitute one and\nthe same document. Signatures delivered by facsimile, PDF or electronic mail shall be as effective as original signatures.\n*\n*\n*\n-6-\nIN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as of the Effective Date.\nSPARK THERAPEUTICS, INC.\nROCHE HOLDINGS INC.\nBy: /s/ Joseph W. LaBarge\nBy: /s/ Bruce Resnick\nName: Joseph W. LaBarge\nName: Bruce Resnick\nTitle: Chief Legal Officer\nTitle: Vice President
c33d42525dbd70fbab9367cb3f6a8e6a.pdf	effective_date jurisdiction party term	EX-10.2 2 dex102.htm SETTLEMENT, RELEASE, COVENANT NOT TO SUE, WAIVER AND NON-DISCLOSURE\nAGREEMENT\nExhibit 10.2\nExecution Copy\nSETTLEMENT, RELEASE, COVENANT NOT\nTO SUE, WAIVER AND NON-DISCLOSURE AGREEMENT\nWHEREAS, ANDREW BANHIDI, individually and on behalf of all his successors, heirs, executors, administrators, legal representatives, and\nassigns (hereinafter referred to collectively as “Banhidi”), and INSTINET GROUP INCORPORATED, on behalf of its parents, subsidiaries\ndivisions and affiliates, and their respective predecessors, successors, assigns, representatives, officers, directors, shareholders, agents, employees\nand attorneys (hereinafter referred to collectively as “Instinet”), have reached agreement with respect to all matters arising out of Banhidi’s\nemployment with Instinet and the termination thereof;\nNOW, THEREFORE, in consideration of the mutual convenants and undertakings set forth herein, Banhidi and Instinet agree as follows:\n1. Termination of Employment. By mutual agreement between the parties, Banhidi’s employment with Instinet shall terminate on August 1,\n2005 (“Termination Date”). Through the Termination Date, Instinet will continue to pay Banhidi at his current base salary of $350,000 per annum,\nwith continuation of Instinet’s benefit programs through such date.\n2. Separation Payments and Benefits. Instinet will pay Banhidi the amounts described below, subject to the provisions of this Agreement. The\npayments to be provided by this paragraph are in place of, and not in addition to, payments Banhidi would otherwise be entitled to pursuant to any\npolicy or practice of Instinet. All payments made pursuant to this paragraph will be reduced by any and all applicable payroll deductions including,\nbut not limited to, federal, state and local tax withholdings.\n(a) Severance Payments. Banhidi will be entitled to receive severance payments for an 18 month period (the “Severance Period”) at the\nrate of $350,000 per annum from the Termination Date through February 1, 2007. During the Severance Period, Banhidi will be eligible to continue\nhis current health and dental coverage for himself and his family, but will not be eligible for life insurance, 401(k) contributions, long-term disability\ninsurance or any other perquisites or benefits.\n1\n(b) Pro Rata Bonus. Within five business days following the date (the “Bonus Payment Date”) annual bonuses for such fiscal year\nare actually paid by Instinet to its active employees, but in no event later than February 28, 2006, Instinet will pay Banhidi $758,630 as his pro rata\nbonus for fiscal year 2005.\n(c) 150% of Average Annual Bonus. Instinet agrees to pay Banhidi two equal installments of $975,000 each, the first such\ninstallment to be paid in February 2006 and the second such installment to be paid in February 2007.\n3. Return of Instinet Property. Banhidi agrees to return to Instinet by no later than the Termination Date, any and all property (including but not\nlimited to files, records, computer software, computer access codes, home computers, laptop computers, pagers, Palm Pilots, fax machines, company\nIDs, business credit cards, proprietary and confidential information) which belongs to Instinet, and shall not retain any copies, duplicates or excerpts\nthereof, except that Instinet agrees to transfer to Banhidi all rights to his Blackberry from the Termination Date. Banhidi will be responsible for all\ncosts relating to the Blackberry from August 2, 2005 forward.\n4. Outplacement Services. At the request of Banhidi, Instinet will make available executive outplacement services to Banhidi, to be provided\nby an outplacement firm to be selected by Instinet, for a period of up to three months. These services will include the provision of an office and\ntelephone for Banhidi to use during the outplacement period.\n5. Instinet Options and Performance Shares. Banhidi agrees that any options awarded to him under Instinet 2000 Stock Option Plan (the\n“Option Plan”) and any performance shares awarded him under the Instinet 2004 Performance Share Plan (the “Performance Share Plan”) will be\ntreated as provided in the Option Plan and the Performance Share Plan.\n2\n6. Full Satisfaction. Banhidi, by entering into this Agreement, accepts the benefits to be conferred on him hereunder in full and complete\nsatisfaction of any and all asserted and unasserted claims of any kind or description against Instinet as of the date of this Agreement, including, but\nnot limited to, claims arising under any federal, state and local fair employment practice law, workers’ compensation law, and any other employee\nrelations statute, executive order, law and ordinance, including, but not limited to, Title VII of the Civil Rights Act of 1964, as amended, the Age\nDiscrimination in Employment Act of 1967, as amended, the Rehabilitation Act of 1973, as amended, the Family and Medical Leave Act, the\nAmericans With Disabilities Act of 1990, as amended, the Civil Rights Acts of 1866 and 1871, and, except as otherwise expressly set forth herein, of\nany other duty and/or other employment related obligation (all of which are hereinafter referred to as “employment relations laws”) as well as any\nclaims arising from tort, tortious course of conduct, contract (including without limitation any claims arising under Banhidi’s Employment\nAgreement dated November 1, 2003, any offer letter or secondment letter), obligations of “good faith,” public policy, statute, common law, equity,\nand all claims for wages and benefits, monetary and equitable relief, punitive and compensatory relief, and attorneys’ fees and costs.\n7. Releases.\n(A) In consideration of the covenants and undertakings above, Banhidi releases and discharges Instinet from any and all liability, and waives\nany and all rights of any kind and description that he has or may have against Instinet as of the date of this Agreement, including, but not limited to,\nany asserted and unasserted claims arising from any employment relations laws, tort, tortious course of conduct, contract (including without\nlimitation any claims arising under Banhidi’s Employment Agreement dated November 1, 2003, any offer letter or secondment letter), public policy,\nstatute, common law, and equity, and claims for wages and benefits, monetary and equitable relief, punitive and compensatory relief, and attorneys’\nfees and costs. The foregoing notwithstanding, Banhidi’s release and waiver do not apply to: (a) his rights\n3\narising out of this Agreement; (b) any rights that Banhidi and any covered dependents may have to purchase health benefit continuation coverage\nunder federal law commonly known as COBRA; (c) any accrued and vested payouts or benefits under Instinet qualified benefit plans; or (d) any\nrights that Banhidi may have to indemnification under Instinet’s general corporate indemnity for acts undertaken by Banhidi within the scope of his\nduties while employed at Instinet.\n(B) Instinet releases and discharges Banhidi from any and all liability, and waives any and all rights of any kind and description that it has or\nmay have against Banhidi as of the date of this Agreement, regarding which Instinet has actual knowledge or should have had knowledge, other than\nrights under this Agreement or arising as a result of any criminal act of Banhidi.\n8. Non-Competition Covenant. Banhidi agrees that he will not, through February 1, 2006, directly or indirectly, become employed by, engage\nin business with, serve as an agent or consultant to, or become a partner, member, principal, stockholder or other owner (other than a holder of less\nthan 1% of the outstanding voting shares of any publicly held company) of any direct market access (“DMA”) broker-dealer or technology vendor\n(including but not limited to ITG, E*Trade Institutional, Lava Trading, Sonic Financial Technologies, Liquidnet, DEx unit of BNY Brokerage, AES\nunit of CSFB, DMA unit of BancAmerica Securities, etc.) in the United States. For these purposes, DMA broker-dealers or technology vendors are\nthose that offer a technology-enhanced consolidated point of entry to electronically and automatically route securities orders to market destinations\nand pools of liquidity. This Section shall not, however, prevent or restrict Banhidi from being employed by an entity that conducts such DMA\nbusiness, provided that Banhidi is not personally involved in the day-to-day activities of such entity in DMA business.\n4\n9. Non-Solicitation Covenant. Banhidi further agrees that he will not (i) through August 1, 2006, directly or indirectly solicit any employee of\nInstinet to leave the employ of Instinet, or otherwise interfere with the relationship of Instinet or any of its Affiliates with any natural person\nthroughout the world who is or was employed by or otherwise engaged to perform services for Instinet or any of its Affiliates at any time during\nwhich Banhidi was employed by Instinet; or (ii) through August 1, 2006, directly or indirectly solicit or initiate contact with any Instinet client to\ntransact with any other company business in which Instinet is engaged, including but not limited to institutional equities, order-matching, clearing\nand after-hours trading, or to reduce or refrain from doing any business with Instinet. The term “client” means any client of Instinet with whom\nBanhidi had personal contact, or for whom he personally transacted business, or whose identity became known to him in connection with his\nrelationship with or employment by Instinet.\n10. Non-Disparagement. Banhidi and Instinet each agree that except, for truthful statements in any proceeding to enforce this Agreement or\npursuant to a valid Subpoena or Court Order, neither will make or publish any statement (orally or in writing) that becomes or reasonably could be\nexpected to become publicly known, or instigate, assist or participate in the making or publication of any such statement, which would libel, slander\nor disparage (whether or not such disparagement legally constitutes libel or slander) the other or, with respect to Instinet, any of its affiliates or any\nother entity or person within Instinet or its affiliates, any of their affairs or operations, or the reputations of any of their past or present officers,\ndirectors, agents, representatives and employees.\n11. Unauthorized Disclosure. Without the prior written consent of Instinet, except to the extent required by an order of a court having\njurisdiction or under subpoena from an\n5\nappropriate government agency, in which event, Banhidi shall use his best efforts to consult with Instinet prior to responding to any such order or\nsubpoena, Banhidi shall not disclose any confidential or proprietary trade secrets, customer lists, drawings, designs, programs, software, protocols,\ninformation regarding product development, marketing plans, sales plans, manufacturing plans, management organization information, operating\npolicies or manuals, business plans, financial records, packaging design or other financial, commercial, business or technical information (a) relating\nto Instinet or any of its Affiliates or (b) that Instinet or any of its Affiliates may receive belonging to suppliers, customers or others who do business\nwith Instinet or any of its Affiliates (collectively, “Confidential Information”) to any third person unless such Confidential Information has been\npreviously disclosed to the public or is in the public domain (other than by reason of Banhidi’s breach of this Section).\nThe parties further agree that the terms of this Agreement, and the negotiations leading up to it shall not be disclosed by the parties to any\nperson, other than in a proceeding to enforce the terms of this Agreement or pursuant to valid subpoena or court order, with the exception of the\nparties’ lawyers, accountants, tax preparers and, with respect to Banhidi, his immediate family, provided that the parties inform any such persons that\nthey must not disclose the same to any person and they agree to that condition. In response to any inquiry from third parties, the parties and their\nattorneys may state only that the parties have resolved the matter.\n12. Rights To Intellectual Property. Banhidi acknowledges and agrees that Instinet is the sole and exclusive owner of all right, title and interest\nin and to all trademarks, copyrights and all other rights in and to all software, computer programs, works of authorship, writings (whether or not\ncopyrightable), inventions (whether or not patentable), discoveries, methods, improvements, processes, ideas, systems, know-how, data, and any\nother intellectual creations of any nature whatsoever that Banhidi developed, or assisted in the development of, in the course of\n6\nhis employment by Instinet (collectively, the “Instinet Intellectual Property”). All Instinet Intellectual Property is deemed to be “work made for\nhire”pursuant to the United States Copyright Act of 1976 (the “Act”) and Instinet thereby owns all right, title and interest in all Instinet Intellectual\nProperty. To the extent that the Instinet Intellectual Property or any part thereof is deemed by any court of competent jurisdiction or any\ngovernmental or regulatory agency not to be a “work made for hire” within the meaning of the Act, the provisions of this section will still control\nand, for the consideration set forth herein, Banhidi hereby irrevocably and absolutely assigns, sets over and grants to Instinet the Instinet Intellectual\nProperty and all of his rights therein. Banhidi further agrees to deliver or execute such documents and to do or refrain from doing such acts as\nInstinet or its nominee may reasonably request to protect its rights in the Instinet Intellectual Property.\n13. Reemployment or Reinstatement. Banhidi agrees not to seek reinstatement or reemployment with Instinet, and hereby waives any rights\nthat may accrue to his from any rejection of any application for employment with Instinet that he may make.\n14. No Admission of Liability. By entering into this Agreement, the parties do not admit to any liability, wrongdoing, breach of any contract,\ncommission of any tort or the violation of any statute or law alleged by the other to have been violated or otherwise.\n15. Entire Agreement and Severability. This Agreement constitutes the complete settlement of all issues and disputes existing between Banhidi\nand Instinet as of the date hereof, and may not be modified except by a suitable writing signed by both Banhidi and Instinet. This Agreement has\nbeen entered into by Banhidi and Instinet voluntarily, knowingly, and upon advice of counsel. If any provision of this Agreement is held to be\ninvalid, the remaining provisions shall remain in full force and effect.\n16. Injunctive Relief. Banhidi acknowledges that a violation on Banhidi’s part of this Agreement, including in particular violation of the\nprovisions of paragraphs 8, 9, 10 and 11\n7\nwould cause irreparable damage to Instinet. Accordingly, Banhidi agrees that Instinet is entitled to injunctive relief from any court of competent\njurisdiction for any actual or threatened violation of this Agreement in addition to any other remedies it may have.\n17. Change in Control. Instinet agrees that, should it experience a Change in Control (as defined herein), it will undertake to ensure that any\nsuccessor entity shall become legally responsible for Instinet’s obligations hereunder. Should Instinet fail to ensure that the successor entity will\nassume Instinet’s obligations hereunder, within 30 days of the event constituting a Change of Control, then all remaining compensation obligations\nowed to Banhidi by Instinet shall become immediately due and payable. For purposes of this paragraph, “Change in Control” shall mean: (i) an\nacquisition in open market purchases of Instinet Common Stock by a third party of the greater of 30% or the percentage then owned in aggregate by\nReuters and its controlled affiliates; (ii) a merger or similar combination following which Instinet’s shareholders prior to the merger are no longer in\ncontrol of the surviving entity; and/or (iii) a sale of substantially all of Instinet’s assets or a liquidation of Instinet.\n18. Breach of Agreement. Banhidi agrees that, without limiting Instinet’s remedies, should he commence, continue, join in, or in any other\nmanner attempt to assert any claim released in connection herewith, or otherwise violate in a material fashion any of the terms of this Agreement,\nInstinet shall not be required to make any further payments to Banhidi pursuant to this Agreement and that Instinet shall be entitled to recover all\npayments already made by it (including interest thereon), in addition to all damages, attorney’s fees and costs, Instinet incurs in connection with the\nBanhidi’s proven breach of this Agreement. Banhidi further agrees that Instinet shall be entitled to the repayments and recovery of damages\ndescribed above without waiver of or prejudice to the release granted by him in connection with this Agreement, and that his proven violation or\nbreach of any provision of this Agreement shall forever release and discharge Instinet from the performance of its obligations arising from the\nAgreement.\n8\n19. Attorney Fees. The parties agree that, in any suit brought by either party for breach of this Agreement by the other, the non-prevailing party\nwill be liable for the reasonable attorneys fees of the prevailing party.\n20. Execution.\na. Banhidi acknowledges that he has had up to forty-five (45) days from his receipt of this document to review it. Upon execution,\nBanhidi or his attorney must promptly send this document by overnight mail to the General Counsel at Instinet. A copy may be retained by Banhidi.\nb. Following his signing of the Agreement, Banhidi has the right to revoke the Agreement at any time within seven (7) calendar days of\nhis signing it, not including the date of his signing (the “Revocation Period”). Notice of Revocation shall be given in writing and sent by overnight\nmail no later than the seventh day following the date Banhidi signs this Agreement to General Counsel, Instinet Group Incorporated, 3 Times Square,\nNew York, NY 10036. If Banhidi does not revoke the Agreement, this Agreement shall be deemed to be effective and to be enforceable as of the last\ndate set forth opposite any signature hereto. If Banhidi gives Notice of Revocation during the Revocation Period in the manner specified above, this\nAgreement shall become null and void and all rights and claims of the parties which would have existed, but for the execution of this Agreement\nshall be restored.\n21. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the law of the State of New York. An\naction for breach of this Agreement may be brought in any court of competent jurisdiction located in New York.\n22. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the heirs, successors and assigns of the\nparties hereto.\n9\nTHE UNDERSIGNED, intending to be legally bound, have executed this Agreement on this 27th day of July, 2005.\nANDREW BANHIDI\nINSTINET GROUP INCORPORATED\n/s/ Andrew Banhidi\nBy: /s/ Alexander Goor\nName: Alexander Goor\nTitle: Co-President\nSTATEMENT BY THE EMPLOYEE WHO IS SIGNING BELOW: INSTINET HAS ADVISED ME IN WRITING TO CONSULT WITH AN\nATTORNEY PRIOR TO EXECUTING THIS RELEASE. I HAVE CAREFULLY READ AND FULLY UNDERSTAND THE PROVISIONS OF\nTHIS RELEASE AND HAVE HAD SUFFICIENT TIME AND OPPORTUNITY TO CONSULT WITH MY PERSONAL TAX, FINANCIAL AND\nLEGAL ADVISORS PRIOR TO EXECUTING THIS DOCUMENT, AND I INTEND TO BE LEGALLY BOUND BY ITS TERMS. I\nUNDERSTAND THAT I MAY REVOKE THIS RELEASE WITHIN SEVEN (7) DAYS FOLLOWING MY SIGNING, AND THIS RELEASE\nWILL NOT BECOME ENFORCEABLE OR EFFECTIVE UNTIL THAT SEVEN (7) DAY PERIOD HAS EXPIRED.\nANDREW BANHIDI\nSigned: /s/ Andrew Banhidi\nTHIS IS A RELEASE. READ CAREFULLY BEFORE SIGNING .\n10	EX-10.2 2 dex102.htm SETTLEMENT, RELEASE, COVENANT NOT TO SUE, WAIVER AND NON-DISCLOSURE\nAGREEMENT\nExhibit 10.2\nExecution Copy.\nSETTLEMENT, RELEASE, COVENANT NOT\nTO SUE, WAIVER AND NON-DISCL.OSURE AGREEMENT\nWHEREAS, ANDREW BANHIDI, individually and on behalf of all his successors, heirs, executors, administrators, legal representatives, and\nassigns (hereinafter referred to collectively as “Banhidi”), and INSTINET GROUP INCORPORATED, on behalf of its parents, subsidiaries\ndivisions and affiliates, and their respective predecessors, successors, assigns, representatives, officers, directors, shareholders, agents, employees\nand attorneys (hereinafter referred to collectively as “Instinet”), have reached agreement with respect to all matters arising out of Banhidi’s\nemployment with Instinet and the termination thereof;\nNOW, THEREFORE, in consideration of the mutual convenants and undertakings set forth herein, Banhidi and Instinet agree as follows:\n1. Termination of Employment. By mutual agreement between the parties, Banhidi’s employment with Instinet shall terminate on August 1,\n2005 (“Termination Date”). Through the Termination Date, Instinet will continue to pay Banhidi at his current base salary of $350,000 per annum,\nwith continuation of Instinet’s benefit programs through such date.\n2. Separation Payments and Benefits. Instinet will pay Banhidi the amounts described below, subject to the provisions of this Agreement. The\npayments to be provided by this paragraph are in place of, and not in addition to, payments Banhidi would otherwise be entitled to pursuant to any\npolicy or practice of Instinet. All payments made pursuant to this paragraph will be reduced by any and all applicable payroll deductions including,\nbut not limited to, federal, state and local tax withholdings.\n(a) Severance Payments. Banhidi will be entitled to receive severance payments for an 18 month period (the “Severance Period”) at the\nrate of $350,000 per annum from the Termination Date through February 1, 2007. During the Severance Period, Banhidi will be eligible to continue\nhis current health and dental coverage for himself and his family, but will not be eligible for life insurance, 401(k) contributions, long-term disability\ninsurance or any other perquisites or benefits.\n \n(b) Pro Rata Bonus. Within five business days following the date (the “Bonus Payment Date”) annual bonuses for such fiscal year\nare actually paid by Instinet to its active employees, but in no event later than February 28, 2006, Instinet will pay Banhidi $758,630 as his pro rata\nbonus for fiscal year 2005.\n(c) 150% of Average Annual Bonus. Instinet agrees to pay Banhidi two equal installments of $975,000 each, the first such\ninstallment to be paid in February 2006 and the second such installment to be paid in February 2007.\n3. Return of Instinet Property. Banhidi agrees to return to Instinet by no later than the Termination Date, any and all property (including but not\nlimited to files, records, computer software, computer access codes, home computers, laptop computers, pagers, Palm Pilots, fax machines, company\nIDs, business credit cards, proprietary and confidential information) which belongs to Instinet, and shall not retain any copies, duplicates or excerpts\nthereof, except that Instinet agrees to transfer to Banhidi all rights to his Blackberry from the Termination Date. Banhidi will be responsible for all\ncosts relating to the Blackberry from August 2, 2005 forward.\n4. Outplacement Services. At the request of Banhidi, Instinet will make available executive outplacement services to Banhidi, to be provided\nby an outplacement firm to be selected by Instinet, for a period of up to three months. These services will include the provision of an office and\ntelephone for Banhidi to use during the outplacement period.\n5. Instinet Options and Performance Shares. Banhidi agrees that any options awarded to him under Instinet 2000 Stock Option Plan (the\n“Option Plan”) and any performance shares awarded him under the Instinet 2004 Performance Share Plan (the “Performance Share Plan”) will be\ntreated as provided in the Option Plan and the Performance Share Plan.\n6. Full Satisfaction. Banhidi, by entering into this Agreement, accepts the benefits to be conferred on him hereunder in full and complete\nsatisfaction of any and all asserted and unasserted claims of any kind or description against Instinet as of the date of this Agreement, including, but\nnot limited to, claims arising under any federal, state and local fair employment practice law, workers’ compensation law, and any other employee\nrelations statute, executive order, law and ordinance, including, but not limited to, Title VII of the Civil Rights Act of 1964, as amended, the Age\nDiscrimination in Employment Act of 1967, as amended, the Rehabilitation Act of 1973, as amended, the Family and Medical Leave Act, the\nAmericans With Disabilities Act of 1990, as amended, the Civil Rights Acts of 1866 and 1871, and, except as otherwise expressly set forth herein, of\nany other duty and/or other employment related obligation (all of which are hereinafter referred to as “employment relations laws”) as well as any\nclaims arising from tort, tortious course of conduct, contract (including without limitation any claims arising under Banhidi’s Employment\nAgreement dated November 1, 2003, any offer letter or secondment letter), obligations of “good faith,” public policy, statute, common law, equity,\nand all claims for wages and benefits, monetary and equitable relief, punitive and compensatory relief, and attorneys’ fees and costs.\n7. Releases.\n(A) In consideration of the covenants and undertakings above, Banhidi releases and discharges Instinet from any and all liability, and waives\nany and all rights of any kind and description that he has or may have against Instinet as of the date of this Agreement, including, but not limited to,\nany asserted and unasserted claims arising from any employment relations laws, tort, tortious course of conduct, contract (including without\nlimitation any claims arising under Banhidi’s Employment Agreement dated November 1, 2003, any offer letter or secondment letter), public policy,\nstatute, common law, and equity, and claims for wages and benefits, monetary and equitable relief, punitive and compensatory relief, and attorneys’\nfees and costs. The foregoing notwithstanding, Banhidi’s release and waiver do not apply to: (a) his rights\n3\narising out of this Agreement; (b) any rights that Banhidi and any covered dependents may have to purchase health benefit continuation coverage\nunder federal law commonly known as COBRA; (c) any accrued and vested payouts or benefits under Instinet qualified benefit plans; or (d) any\nrights that Banhidi may have to indemnification under Instinet’s general corporate indemnity for acts undertaken by Banhidi within the scope of his\nduties while employed at Instinet.\n(B) Instinet releases and discharges Banhidi from any and all liability, and waives any and all rights of any kind and description that it has or\nmay have against Banhidi as of the date of this Agreement, regarding which Instinet has actual knowledge or should have had knowledge, other than\nrights under this Agreement or arising as a result of any criminal act of Banhidi.\n8. Non-Competition Covenant. Banhidi agrees that he will not, through February 1, 2006, directly or indirectly, become employed by, engage\nin business with, serve as an agent or consultant to, or become a partner, member, principal, stockholder or other owner (other than a holder of less\nthan 1% of the outstanding voting shares of any publicly held company) of any direct market access (“DMA”) broker-dealer or technology vendor\n(including but not limited to ITG, E*Trade Institutional, Lava Trading, Sonic Financial Technologies, Liquidnet, DEx unit of BN'Y Brokerage, AES\nunit of CSFB, DMA unit of BancAmerica Securities, etc.) in the United States. For these purposes, DMA broker-dealers or technology vendors are\nthose that offer a technology-enhanced consolidated point of entry to electronically and automatically route securities orders to market destinations\nand pools of liquidity. This Section shall not, however, prevent or restrict Banhidi from being employed by an entity that conducts such DMA\nbusiness, provided that Banhidi is not personally involved in the day-to-day activities of such entity in DMA business.\n4\n9. Non-Solicitation Covenant. Banhidi further agrees that he will not (i) through August 1, 2006, directly or indirectly solicit any employee of\nInstinet to leave the employ of Instinet, or otherwise interfere with the relationship of Instinet or any of its Affiliates with any natural person\nthroughout the world who is or was employed by or otherwise engaged to perform services for Instinet or any of its Affiliates at any time during\nwhich Banhidi was employed by Instinet; or (ii) through August 1, 2006, directly or indirectly solicit or initiate contact with any Instinet client to\ntransact with any other company business in which Instinet is engaged, including but not limited to institutional equities, order-matching, clearing\nand after-hours trading, or to reduce or refrain from doing any business with Instinet. The term “client” means any client of Instinet with whom\nBanhidi had personal contact, or for whom he personally transacted business, or whose identity became known to him in connection with his\nrelationship with or employment by Instinet.\n10. Non-Disparagement. Banhidi and Instinet each agree that except, for truthful statements in any proceeding to enforce this Agreement or\npursuant to a valid Subpoena or Court Order, neither will make or publish any statement (orally or in writing) that becomes or reasonably could be\nexpected to become publicly known, or instigate, assist or participate in the making or publication of any such statement, which would libel, slander\nor disparage (whether or not such disparagement legally constitutes libel or slander) the other or, with respect to Instinet, any of its affiliates or any\nother entity or person within Instinet or its affiliates, any of their affairs or operations, or the reputations of any of their past or present officers,\ndirectors, agents, representatives and employees.\n11. Unauthorized Disclosure. Without the prior written consent of Instinet, except to the extent required by an order of a court having\njurisdiction or under subpoena from an\nappropriate government agency, in which event, Banhidi shall use his best efforts to consult with Instinet prior to responding to any such order or\nsubpoena, Banhidi shall not disclose any confidential or proprietary trade secrets, customer lists, drawings, designs, programs, software, protocols,\ninformation regarding product development, marketing plans, sales plans, manufacturing plans, management organization information, operating\npolicies or manuals, business plans, financial records, packaging design or other financial, commercial, business or technical information (a) relating\nto Instinet or any of its Affiliates or (b) that Instinet or any of its Affiliates may receive belonging to suppliers, customers or others who do business\nwith Instinet or any of its Affiliates (collectively, “Confidential Information”) to any third person unless such Confidential Information has been\npreviously disclosed to the public or is in the public domain (other than by reason of Banhidi’s breach of this Section).\nThe parties further agree that the terms of this Agreement, and the negotiations leading up to it shall not be disclosed by the parties to any\nperson, other than in a proceeding to enforce the terms of this Agreement or pursuant to valid subpoena or court order, with the exception of the\nparties’ lawyers, accountants, tax preparers and, with respect to Banhidi, his immediate family, provided that the parties inform any such persons that\nthey must not disclose the same to any person and they agree to that condition. In response to any inquiry from third parties, the parties and their\nattorneys may state only that the parties have resolved the matter.\n12. Rights To Intellectual Property. Banhidi acknowledges and agrees that Instinet is the sole and exclusive owner of all right, title and interest\nin and to all trademarks, copyrights and all other rights in and to all software, computer programs, works of authorship, writings (whether or not\ncopyrightable), inventions (whether or not patentable), discoveries, methods, improvements, processes, ideas, systems, know-how, data, and any\nother intellectual creations of any nature whatsoever that Banhidi developed, or assisted in the development of, in the course of\n6\nhis employment by Instinet (collectively, the “Instinet Intellectual Property”). All Instinet Intellectual Property is deemed to be “work made for\nhire”pursuant to the United States Copyright Act of 1976 (the “Act”) and Instinet thereby owns all right, title and interest in all Instinet Intellectual\nProperty. To the extent that the Instinet Intellectual Property or any part thereof is deemed by any court of competent jurisdiction or any\ngovernmental or regulatory agency not to be a “work made for hire” within the meaning of the Act, the provisions of this section will still control\nand, for the consideration set forth herein, Banhidi hereby irrevocably and absolutely assigns, sets over and grants to Instinet the Instinet Intellectual\nProperty and all of his rights therein. Banhidi further agrees to deliver or execute such documents and to do or refrain from doing such acts as\nInstinet or its nominee may reasonably request to protect its rights in the Instinet Intellectual Property.\n13. Reemployment or Reinstatement. Banhidi agrees not to seek reinstatement or reemployment with Instinet, and hereby waives any rights\nthat may accrue to his from any rejection of any application for employment with Instinet that he may make.\n14. No Admission of Liability. By entering into this Agreement, the parties do not admit to any liability, wrongdoing, breach of any contract,\ncommission of any tort or the violation of any statute or law alleged by the other to have been violated or otherwise.\n15. Entire Agreement and Severability. This Agreement constitutes the complete settlement of all issues and disputes existing between Banhidi\nand Instinet as of the date hereof, and may not be modified except by a suitable writing signed by both Banhidi and Instinet. This Agreement has\nbeen entered into by Banhidi and Instinet voluntarily, knowingly, and upon advice of counsel. If any provision of this Agreement is held to be\ninvalid, the remaining provisions shall remain in full force and effect.\n16. Injunctive Relief. Banhidi acknowledges that a violation on Banhidi’s part of this Agreement, including in particular violation of the\nprovisions of paragraphs 8, 9, 10 and 11\nwould cause irreparable damage to Instinet. Accordingly, Banhidi agrees that Instinet is entitled to injunctive relief from any court of competent\njurisdiction for any actual or threatened violation of this Agreement in addition to any other remedies it may have.\n17. Change in Control. Instinet agrees that, should it experience a Change in Control (as defined herein), it will undertake to ensure that any\nsuccessor entity shall become legally responsible for Instinet’s obligations hereunder. Should Instinet fail to ensure that the successor entity will\nassume Instinet’s obligations hereunder, within 30 days of the event constituting a Change of Control, then all remaining compensation obligations\nowed to Banhidi by Instinet shall become immediately due and payable. For purposes of this paragraph, “Change in Control” shall mean: (i) an\nacquisition in open market purchases of Instinet Common Stock by a third party of the greater of 30% or the percentage then owned in aggregate by\nReuters and its controlled affiliates; (ii) a merger or similar combination following which Instinet’s shareholders prior to the merger are no longer in\ncontrol of the surviving entity; and/or (iii) a sale of substantially all of Instinet’s assets or a liquidation of Instinet.\n18. Breach of Agreement. Banhidi agrees that, without limiting Instinet’s remedies, should he commence, continue, join in, or in any other\nmanner attempt to assert any claim released in connection herewith, or otherwise violate in a material fashion any of the terms of this Agreement,\nInstinet shall not be required to make any further payments to Banhidi pursuant to this Agreement and that Instinet shall be entitled to recover all\npayments already made by it (including interest thereon), in addition to all damages, attorney’s fees and costs, Instinet incurs in connection with the\nBanhidi’s proven breach of this Agreement. Banhidi further agrees that Instinet shall be entitled to the repayments and recovery of damages\ndescribed above without waiver of or prejudice to the release granted by him in connection with this Agreement, and that his proven violation or\nbreach of any provision of this Agreement shall forever release and discharge Instinet from the performance of its obligations arising from the\nAgreement.\n19. Attorney Fees. The parties agree that, in any suit brought by either party for breach of this Agreement by the other, the non-prevailing party\nwill be liable for the reasonable attorneys fees of the prevailing party.\n20. Execution.\na. Banhidi acknowledges that he has had up to forty-five (45) days from his receipt of this document to review it. Upon execution,\nBanhidi or his attorney must promptly send this document by overnight mail to the General Counsel at Instinet. A copy may be retained by Banhidi.\nb. Following his signing of the Agreement, Banhidi has the right to revoke the Agreement at any time within seven (7) calendar days of\nhis signing it, not including the date of his signing (the “Revocation Period”). Notice of Revocation shall be given in writing and sent by overnight\nmail no later than the seventh day following the date Banhidi signs this Agreement to General Counsel, Instinet Group Incorporated, 3 Times Square,\nNew York, NY 10036. If Banhidi does not revoke the Agreement, this Agreement shall be deemed to be effective and to be enforceable as of the last\ndate set forth opposite any signature hereto. If Banhidi gives Notice of Revocation during the Revocation Period in the manner specified above, this\nAgreement shall become null and void and all rights and claims of the parties which would have existed, but for the execution of this Agreement\nshall be restored.\n21. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the law of the State of New York. An\naction for breach of this Agreement may be brought in any court of competent jurisdiction located in New York.\n22. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the heirs, successors and assigns of the\nparties hereto.\nTHE UNDERSIGNED, intending to be legally bound, have executed this Agreement on this 27th day of July, 2005.\nANDREW BANHIDI INSTINET GROUP INCORPORATED\n/s/ Andrew Banhidi By: /s/ Alexander Goor\nName: Alexander Goor\nTitle: Co-President\nSTATEMENT BY THE EMPLOYEE WHO IS SIGNING BELOW: INSTINET HAS ADVISED ME IN WRITING TO CONSULT WITH AN\nATTORNEY PRIOR TO EXECUTING THIS RELEASE. I HAVE CAREFULLY READ AND FULLY UNDERSTAND THE PROVISIONS OF\nTHIS RELEASE AND HAVE HAD SUFFICIENT TIME AND OPPORTUNITY TO CONSULT WITH MY PERSONAL TAX, FINANCIAL AND\nLEGAL ADVISORS PRIOR TO EXECUTING THIS DOCUMENT, AND I INTEND TO BE LEGALLY BOUND BY ITS TERMS. I\nUNDERSTAND THAT I MAY REVOKE THIS RELEASE WITHIN SEVEN (7) DAYS FOLLOWING MY SIGNING, AND THIS RELEASE\nWILL NOT BECOME ENFORCEABLE OR EFFECTIVE UNTIL THAT SEVEN (7) DAY PERIOD HAS EXPIRED.\nANDREW BANHIDI\nSigned: /s/ Andrew Banhidi\nTHIS IS A RELEASE. READ CAREFULLY BEFORE SIGNING.\n10	EX-10.2 2 dex102.htm SETTLEMENT, RELEASE, COVENANT NOT TO SUE, WAIVER AND NON-DISCLOSURE\nAGREEMENT\nExhibit 10.2\nExecution Copy.\nSETTLEMENT, RELEASE, COVENANT NOT\nTO SUE, WAIVER AND NON-DISCLOSURE AGREEMENT\nWHEREAS, ANDREW BANHIDI, individually and on behalf of all his successors, heirs, executors, administrators, legal representatives, and\nassigns (hereinafter referred to collectively as "Banhidi"), and INSTINET GROUP INCORPORATED, on behalf of its parents, subsidiaries\ndivisions and affiliates, and their respective predecessors, successors, assigns, representatives, officers, directors, shareholders, agents, employees\nand attorneys (hereinafter referred to collectively as "Instinet"), have reached agreement with respect to all matters arising out of Banhidi's\nemployment with Instinet and the termination thereof;\nNOW, THEREFORE, in consideration of the mutual convenants and undertakings set forth herein, Banhidi and Instinet agree as follows:\n1. Termination of Employment. By mutual agreement between the parties, Banhidi's employment with Instinet shall terminate on August 1,\n2005 ("Termination Date"). Through the Termination Date, Instinet will continue to pay Banhidi at his current base salary of $350,000 per annum,\nwith continuation of Instinet's benefit programs through such date.\n2. Separation Payments and Benefits. Instinet will pay Banhidi the amounts described below, subject to the provisions of this Agreement. The\npayments to be provided by this paragraph are in place of, and not in addition to, payments Banhidi would otherwise be entitled to pursuant to any\npolicy or practice of Instinet. All payments made pursuant to this paragraph will be reduced by any and all applicable payroll deductions including,\nbut not limited to, federal, state and local tax withholdings.\n(a) Severance Payments. Banhidi will be entitled to receive severance payments for an 18 month period (the "Severance Period") at the\nrate of $350,000 per annum from the Termination Date through February 1, 2007. During the Severance Period, Banhidi will be eligible to continue\nhis current health and dental coverage for himself and his family, but will not be eligible for life insurance, 401(k) contributions, long-term disability\ninsurance or any other perquisites or benefits.\n1\n(b) Pro Rata Bonus. Within five business days following the date (the "Bonus Payment Date") annual bonuses for such fiscal year\nare actually paid by Instinet to its active employees, but in no event later than February 28, 2006, Instinet will pay Banhidi $758,630 as his pro rata\nbonus for fiscal year 2005.\n(c) 150% of Average Annual Bonus. Instinet agrees to pay Banhidi two equal installments of $975,000 each, the first such\ninstallment to be paid in February 2006 and the second such installment to be paid in February 2007.\n3. Return of Instinet Property.. Banhidi agrees to return to Instinet by no later than the Termination Date, any and all property (including but not\nlimited\nto\nfiles, records, computer software, computer access codes, home computers, laptop computers, pagers, Palm Pilots, fax machines, company\nIDs, business credit cards, proprietary and confidential information) which belongs to Instinet, and shall not retain any copies, duplicates or excerpts\nthereof, except that Instinet agrees to transfer to Banhidi all rights to his Blackberry from the Termination Date. Banhidi will be responsible for all\ncosts relating to the Blackberry from August 2, 2005 forward.\n4. Outplacement Services. At the request of Banhidi, Instinet will make available executive outplacement services to Banhidi, to be provided\nby an outplacement firm to be selected by Instinet, for a period of up to three months. These services will include the provision of an office and\ntelephone for Banhidi to use during the outplacement period.\n5. Instinet Options and Performance Shares. Banhidi agrees that any options awarded to him under Instinet 2000 Stock Option Plan (the\n"Option Plan") and any performance shares awarded him under the Instinet 2004 Performance Share Plan (the "Performance Share Plan") will be\ntreated as provided in the Option Plan and the Performance Share Plan.\n2\n6. Full Satisfaction. Banhidi, by entering into this Agreement, accepts the benefits to be conferred on him hereunder in full and complete\nsatisfaction of any and all asserted and unasserted claims of any kind or description against Instinet as of the date of this Agreement, including, but\nnot limited to, claims arising under any federal, state and local fair employment practice law, workers' compensation law, and any other employee\nrelations statute, executive order, law and ordinance, including, but not limited to, Title VII of the Civil Rights Act of 1964, as amended, the Age\nDiscrimination in Employment Act of 1967, as amended, the Rehabilitation Act of 1973, as amended, the Family and Medical Leave Act, the\nAmericans With Disabilities Act of 1990, as amended, the Civil Rights Acts of 1866 and 1871, and, except as otherwise expressly set forth herein, of\nany other duty and/or other employment related obligation (all of which are hereinafter referred to as "employment relations laws") as well as any\nclaims arising from tort, tortious course of conduct, contract (including without limitation any claims arising under Banhidi's Employment\nAgreement dated November 1, 2003, any offer letter or secondment letter), obligations of "good faith," public policy, statute, common law, equity,\nand all claims for wages and benefits, monetary and equitable relief, punitive and compensatory relief, and attorneys' fees and costs.\n7. Releases.\n(A) In consideration of the covenants and undertakings above, Banhidi releases and discharges Instinet from any and all liability, and waives\nany and all rights of any kind and description that he has or may have against Instinet as of the date of this Agreement, including, but not limited to,\nany asserted and unasserted claims arising from any employment relations laws, tort, tortious course of conduct, contract (including without\nlimitation any claims arising under Banhidi's Employment Agreement dated November 1, 2003, any offer letter or secondment letter), public policy,\nstatute,\ncommon law, and equity, and claims for wages and benefits, monetary and equitable relief, punitive and compensatory relief, and attorneys'\nfees and costs. The foregoing notwithstanding, Banhidi's release and waiver do not apply to: (a) his rights\n3\narising out of this Agreement; (b) any rights that Banhidi and any covered dependents may have to purchase health benefit continuation coverage\nunder federal law commonly known as COBRA; (c) any accrued and vested payouts or benefits under Instinet qualified benefit plans; or (d) any\nrights that Banhidi may have to indemnification under Instinet's general corporate indemnity for acts undertaken by Banhidi within the scope of\nhis\nduties while employed at Instinet.\n(B) Instinet releases and discharges Banhidi from any and all liability, and waives any and all rights of any kind and description that it has or\nmay have against Banhidi as of the date of this Agreement, regarding which Instinet has actual knowledge or should have had knowledge, other than\nrights under this Agreement or arising as a result of any criminal act of Banhidi.\n8. Non-Competition Covenant. Banhidi agrees that he will not, through February 1, 2006, directly or indirectly, become employed by, engage\nin\nbusiness with, serve as an agent or consultant to, or become a partner, member, principal, stockholder or other owner (other than a holder of less\nthan 1% of the outstanding voting shares of any publicly held company) of any direct market access ("DMA") broker-dealer or technology vendor\n(including but not limited to ITG, E*Trade Institutional, Lava Trading, Sonic Financial Technologies, Liquidnet, DEx unit of BNY Brokerage, AES\nunit of CSFB, DMA unit of BancAmerica Securities, etc.) in the United States. For these purposes, DMA broker-dealers or technology vendors are\nthose that offer a technology-enhanced consolidated point of entry to electronically and automatically route securities orders to market destinations\nand pools of liquidity. This Section shall not, however, prevent or restrict Banhidi from being employed by an entity that conducts such DMA\nbusiness, provided that Banhidi is not personally involved in the day-to-day activities of such entity in DMA business.\n4\n9. Non-Solicitation Covenant. Banhidi further agrees that he will not (i) through August 1, 2006, directly or indirectly solicit any employee of\nInstinet to leave the employ of Instinet, or otherwise interfere with the relationship of Instinet or any of its Affiliates with any natural person\nthroughout the world who is or was employed by or otherwise engaged to perform services for Instinet or any of its Affiliates at any time during\nwhich Banhidi was employed by Instinet; or (ii) through August 1, 2006, directly or indirectly solicit or initiate contact with any Instinet client to\ntransact with any other company business in which Instinet is engaged, including but not limited to institutional equities, order-matching, clearing\nand after-hours trading, or to reduce or refrain from doing any business with Instinet. The term "client" means any client of Instinet with whom\nBanhidi had personal contact, or for whom he personally transacted business, or whose identity became known to him in connection with his\nrelationship with or employment by Instinet.\n10. Non-Disparagement. Banhidi and Instinet each agree that except, for truthful statements in any proceeding to enforce this Agreement or\npursuant to a valid Subpoena or Court Order, neither will make or publish any statement (orally or in writing) that becomes or reasonably could be\nexpected to become publicly known, or instigate, assist or participate in the making or publication of any such statement, which would libel, slander\nor disparage (whether or not such disparagement legally constitutes libel or slander) the other or, with respect to Instinet, any of its affiliates or any\nother entity or person within Instinet or its affiliates, any of their affairs or operations, or the reputations of any of their past or present officers,\ndirectors, agents, representatives and employees.\n11. Unauthorized Disclosure. Without the prior written consent of Instinet, except to the extent required by an order of a court having\njurisdiction or under subpoena from an\n5\nappropriate government agency, in which event, Banhidi shall use his best efforts to consult with Instinet prior to responding to any such order or\nsubpoena, Banhidi shall not disclose any confidential or proprietary trade secrets, customer lists, drawings, designs, programs, software, protocols,\ninformation regarding product development, marketing plans, sales plans, manufacturing plans, management organization information, operating\npolicies or manuals, business plans, financial records, packaging design or other financial, commercial, business or technical information (a) relating\nto\nInstinet or any of its Affiliates or (b) that Instinet or any of its Affiliates may receive belonging to suppliers, customers or others who do business\nwith Instinet or any of its Affiliates (collectively, "Confidential Information") to any third person unless such Confidential Information has been\npreviously disclosed to the public or is in the public domain (other than by reason of Banhidi's breach of this Section).\nThe parties further agree that the terms of this Agreement, and the negotiations leading up to it shall not be disclosed by the parties to any\nperson, other than in a proceeding to enforce the terms of this Agreement or pursuant to valid subpoena or court order, with the exception of the\nparties' lawyers, accountants, tax preparers and, with respect to Banhidi, his immediate family, provided that the parties inform any such persons\nthat\nthey must not disclose the same to any person and they agree to that condition. In response to any inquiry from third parties, the parties and their\nattorneys may state only that the parties have resolved the matter.\n12. Rights To Intellectual Property. Banhidi acknowledges and agrees that Instinet is the sole and exclusive owner of all right, title and interest\nin and to all trademarks, copyrights and all other rights in and to all software, computer programs, works of authorship, writings (whether or not\ncopyrightable), inventions (whether or not patentable), discoveries, methods, improvements, processes, ideas, systems, know-how, data, and any\nother intellectual creations of any nature whatsoever that Banhidi developed, or assisted in the development of, in the course of\n6\nhis employment by Instinet (collectively, the "Instinet Intellectual Property"). All Instinet Intellectual Property is deemed to be "work made for\nhire" "pursuant to the United States Copyright Act of 1976 (the "Act") and Instinet thereby owns all right, title and interest in all Instinet Intellectual\nProperty. To the extent that the Instinet Intellectual Property or any part thereof is deemed by any court of competent jurisdiction or any\ngovernmental or regulatory agency not to be a "work made for hire" within the meaning of the Act, the provisions of this section will still control\nand, for the consideration set forth herein, Banhidi hereby irrevocably and absolutely assigns, sets over and grants to Instinet the Instinet Intellectual\nProperty and all of his rights therein. Banhidi further agrees to deliver or execute such documents and to do or refrain from doing such acts as\nInstinet or its nominee may reasonably request to protect its rights in the Instinet Intellectual Property.\n13. Reemployment or Reinstatement. Banhidi agrees not to seek reinstatement or reemployment with Instinet, and hereby waives any rights\nthat may accrue to his from any rejection of any application for employment with Instinet that he may make.\n14. No Admission of Liability.. By entering into this Agreement, the parties do not admit to any liability, wrongdoing, breach of any contract,\ncommission of any tort or the violation of any statute or law alleged by the other to have been violated or otherwise.\n15. Entire Agreement and Severability.. This Agreement constitutes the complete settlement of all issues and disputes existing between Banhidi\nand Instinet as of the date hereof, and may not be modified except by a suitable writing signed by both Banhidi and Instinet. This Agreement has\nbeen entered into by Banhidi and Instinet voluntarily, knowingly, and upon advice of counsel. If any provision of this Agreement is held to\nbe\ninvalid, the remaining provisions shall remain in full force and effect.\n16. Injunctive Relief. Banhidi acknowledges that a violation on Banhidi's part of this Agreement, including in particular violation of the\nprovisions of paragraphs 8, 9, 10 and 11\n7\nwould cause irreparable damage to Instinet. Accordingly, Banhidi agrees that Instinet is entitled to injunctive relief from any court of competent\njurisdiction for any actual or threatened violation of this Agreement in addition to any other remedies it may have.\n17. Change in Control. Instinet agrees that, should it experience a Change in Control (as defined herein), it will undertake to ensure that any\nsuccessor entity shall become legally responsible for Instinet's obligations hereunder. Should Instinet fail to ensure that the successor entity will\nassume Instinet's obligations hereunder, within 30 days of the event constituting a Change of Control, then all remaining compensation obligations\nowed to Banhidi by Instinet shall become immediately due and payable. For purposes of this paragraph, "Change in Control" shall mean: (i) an\nacquisition in open market purchases of Instinet Common Stock by a third party of the greater of 30% or the percentage then owned in aggregate by\nReuters and its controlled affiliates; (ii) a merger or similar combination following which Instinet's shareholders prior to the merger are no longer in\ncontrol of the surviving entity; and/or (iii) a sale of substantially all of Instinet's assets or a liquidation of Instinet.\n18. Breach of Agreement. Banhidi agrees that, without limiting Instinet's remedies, should he commence, continue, join in, or in any other\nmanner attempt to assert any claim released in connection herewith, or otherwise violate in a material fashion any of the terms of this Agreement,\nInstinet shall not be required to make any further payments to Banhidi pursuant to this Agreement and that Instinet shall be entitled to recover all\npayments already made by it (including interest thereon), in addition to all damages, attorney's fees and costs, Instinet incurs in connection with the\nBanhidi's proven breach of this Agreement. Banhidi further agrees that Instinet shall be entitled to the repayments and recovery of damages\ndescribed above without waiver of or prejudice to the release granted by him in connection with this Agreement, and that his proven violation or\nbreach of any provision of this Agreement shall forever release and discharge Instinet from the performance of its obligations arising from the\nAgreement.\n8\n19. Attorney. Fees. The parties agree that, in any suit brought by either party for breach of this Agreement by the other, the non-prevailing party\nwill be liable for the reasonable attorneys fees of the prevailing party.\n20. Execution.\na. Banhidi acknowledges that he has had up to forty-five (45) days from his receipt of this document to review it. Upon execution,\nBanhidi or his attorney must promptly send this document by overnight mail to the General Counsel at Instinet. A copy may be retained by Banhidi.\nb. Following his signing of the Agreement, Banhidi has the right to revoke the Agreement at any time within seven (7) calendar days of\nhis signing it, not including the date of his signing (the "Revocation Period"). Notice of Revocation shall be given in writing and sent by overnight\nmail no later than the seventh day following the date Banhidi signs this Agreement to General Counsel, Instinet Group Incorporated, 3 Times Square\nNew York, NY 10036. If Banhidi does not revoke the Agreement, this Agreement shall be deemed to be effective and to be enforceable as of the last\ndate set forth opposite any signature hereto. If Banhidi gives Notice of Revocation during the Revocation Period in the manner specified above, this\nAgreement shall become null and void and all rights and claims of the parties which would have existed, but for the execution of this Agreement\nshall be restored.\n21. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the law of the State of New York. An\naction for breach of this Agreement may be brought in any court of competent jurisdiction located in New York.\n22. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the heirs, successors and assigns of the\nparties hereto.\n9\nTHE UNDERSIGNED, intending to be legally bound, have executed this Agreement on this 27th day of July, 2005.\nANDREW BANHIDI\nINSTINET GROUP INCORPORATED\n/s/ Andrew Banhidi\nBy:\n/s/ Alexander Goor\nName: Alexander Goor\nTitle: Co-President\nSTATEMENT BY THE EMPLOYEE WHO IS SIGNING BELOW: INSTINET HAS ADVISED ME IN WRITING TO CONSULT WITH AN\nATTORNEY PRIOR TO EXECUTING THIS RELEASE. I HAVE CAREFULLY READ AND FULLY UNDERSTAND THE PROVISIONS OF\nTHIS RELEASE AND HAVE HAD SUFFICIENT TIME AND OPPORTUNITY TO CONSULT WITH MY PERSONAL TAX, FINANCIAL AND\nLEGAL ADVISORS PRIOR TO EXECUTING THIS DOCUMENT, AND I INTEND TO BE LEGALLY BOUND BY ITS TERMS. I\nUNDERSTAND THAT I MAY REVOKE THIS RELEASE WITHIN SEVEN (7) DAYS FOLLOWING MY SIGNING, AND THIS RELEASE\nWILL NOT BECOME ENFORCEABLE OR EFFECTIVE UNTIL THAT SEVEN (7) DAY PERIOD HAS EXPIRED.\nANDREW BANHIDI\nSigned: /s/ Andrew Banhidi\nTHIS IS A RELEASE. READ CAREFULLY BEFORE SIGNING.\n10	EX-10.2 2 dex102.htm SETTLEMENT, RELEASE, COVENANT NOT TO SUE, WAIVER AND NON-DISCLOSURE\nAGREEMENT\nExhibit 10.2\nExecution Copy\nSETTLEMENT, RELEASE, COVENANT NOT\nTO SUE, WAIVER AND NON-DISCLOSURE AGREEMENT\nWHEREAS, ANDREW BANHIDI, individually and on behalf of all his successors, heirs, executors, administrators, legal representatives, and\nassigns (hereinafter referred to collectively as “Banhidi”), and INSTINET GROUP INCORPORATED, on behalf of its parents, subsidiaries\ndivisions and affiliates, and their respective predecessors, successors, assigns, representatives, officers, directors, shareholders, agents, employees\nand attorneys (hereinafter referred to collectively as “Instinet”), have reached agreement with respect to all matters arising out of Banhidi’s\nemployment with Instinet and the termination thereof;\nNOW, THEREFORE, in consideration of the mutual convenants and undertakings set forth herein, Banhidi and Instinet agree as follows:\n1. Termination of Employment. By mutual agreement between the parties, Banhidi’s employment with Instinet shall terminate on August 1,\n2005 (“Termination Date”). Through the Termination Date, Instinet will continue to pay Banhidi at his current base salary of $350,000 per annum,\nwith continuation of Instinet’s benefit programs through such date.\n2. Separation Payments and Benefits. Instinet will pay Banhidi the amounts described below, subject to the provisions of this Agreement. The\npayments to be provided by this paragraph are in place of, and not in addition to, payments Banhidi would otherwise be entitled to pursuant to any\npolicy or practice of Instinet. All payments made pursuant to this paragraph will be reduced by any and all applicable payroll deductions including,\nbut not limited to, federal, state and local tax withholdings.\n(a) Severance Payments. Banhidi will be entitled to receive severance payments for an 18 month period (the “Severance Period”) at the\nrate of $350,000 per annum from the Termination Date through February 1, 2007. During the Severance Period, Banhidi will be eligible to continue\nhis current health and dental coverage for himself and his family, but will not be eligible for life insurance, 401(k) contributions, long-term disability\ninsurance or any other perquisites or benefits.\n1\n(b) Pro Rata Bonus. Within five business days following the date (the “Bonus Payment Date”) annual bonuses for such fiscal year\nare actually paid by Instinet to its active employees, but in no event later than February 28, 2006, Instinet will pay Banhidi $758,630 as his pro rata\nbonus for fiscal year 2005.\n(c) 150% of Average Annual Bonus. Instinet agrees to pay Banhidi two equal installments of $975,000 each, the first such\ninstallment to be paid in February 2006 and the second such installment to be paid in February 2007.\n3. Return of Instinet Property. Banhidi agrees to return to Instinet by no later than the Termination Date, any and all property (including but not\nlimited to files, records, computer software, computer access codes, home computers, laptop computers, pagers, Palm Pilots, fax machines, company\nIDs, business credit cards, proprietary and confidential information) which belongs to Instinet, and shall not retain any copies, duplicates or excerpts\nthereof, except that Instinet agrees to transfer to Banhidi all rights to his Blackberry from the Termination Date. Banhidi will be responsible for all\ncosts relating to the Blackberry from August 2, 2005 forward.\n4. Outplacement Services. At the request of Banhidi, Instinet will make available executive outplacement services to Banhidi, to be provided\nby an outplacement firm to be selected by Instinet, for a period of up to three months. These services will include the provision of an office and\ntelephone for Banhidi to use during the outplacement period.\n5. Instinet Options and Performance Shares. Banhidi agrees that any options awarded to him under Instinet 2000 Stock Option Plan (the\n“Option Plan”) and any performance shares awarded him under the Instinet 2004 Performance Share Plan (the “Performance Share Plan”) will be\ntreated as provided in the Option Plan and the Performance Share Plan.\n2\n6. Full Satisfaction. Banhidi, by entering into this Agreement, accepts the benefits to be conferred on him hereunder in full and complete\nsatisfaction of any and all asserted and unasserted claims of any kind or description against Instinet as of the date of this Agreement, including, but\nnot limited to, claims arising under any federal, state and local fair employment practice law, workers’ compensation law, and any other employee\nrelations statute, executive order, law and ordinance, including, but not limited to, Title VII of the Civil Rights Act of 1964, as amended, the Age\nDiscrimination in Employment Act of 1967, as amended, the Rehabilitation Act of 1973, as amended, the Family and Medical Leave Act, the\nAmericans With Disabilities Act of 1990, as amended, the Civil Rights Acts of 1866 and 1871, and, except as otherwise expressly set forth herein, of\nany other duty and/or other employment related obligation (all of which are hereinafter referred to as “employment relations laws”) as well as any\nclaims arising from tort, tortious course of conduct, contract (including without limitation any claims arising under Banhidi’s Employment\nAgreement dated November 1, 2003, any offer letter or secondment letter), obligations of “good faith,” public policy, statute, common law, equity,\nand all claims for wages and benefits, monetary and equitable relief, punitive and compensatory relief, and attorneys’ fees and costs.\n7. Releases.\n(A) In consideration of the covenants and undertakings above, Banhidi releases and discharges Instinet from any and all liability, and waives\nany and all rights of any kind and description that he has or may have against Instinet as of the date of this Agreement, including, but not limited to,\nany asserted and unasserted claims arising from any employment relations laws, tort, tortious course of conduct, contract (including without\nlimitation any claims arising under Banhidi’s Employment Agreement dated November 1, 2003, any offer letter or secondment letter), public policy,\nstatute, common law, and equity, and claims for wages and benefits, monetary and equitable relief, punitive and compensatory relief, and attorneys’\nfees and costs. The foregoing notwithstanding, Banhidi’s release and waiver do not apply to: (a) his rights\n3\narising out of this Agreement; (b) any rights that Banhidi and any covered dependents may have to purchase health benefit continuation coverage\nunder federal law commonly known as COBRA; (c) any accrued and vested payouts or benefits under Instinet qualified benefit plans; or (d) any\nrights that Banhidi may have to indemnification under Instinet’s general corporate indemnity for acts undertaken by Banhidi within the scope of his\nduties while employed at Instinet.\n(B) Instinet releases and discharges Banhidi from any and all liability, and waives any and all rights of any kind and description that it has or\nmay have against Banhidi as of the date of this Agreement, regarding which Instinet has actual knowledge or should have had knowledge, other than\nrights under this Agreement or arising as a result of any criminal act of Banhidi.\n8. Non-Competition Covenant. Banhidi agrees that he will not, through February 1, 2006, directly or indirectly, become employed by, engage\nin business with, serve as an agent or consultant to, or become a partner, member, principal, stockholder or other owner (other than a holder of less\nthan 1% of the outstanding voting shares of any publicly held company) of any direct market access (“DMA”) broker-dealer or technology vendor\n(including but not limited to ITG, E*Trade Institutional, Lava Trading, Sonic Financial Technologies, Liquidnet, DEx unit of BNY Brokerage, AES\nunit of CSFB, DMA unit of BancAmerica Securities, etc.) in the United States. For these purposes, DMA broker-dealers or technology vendors are\nthose that offer a technology-enhanced consolidated point of entry to electronically and automatically route securities orders to market destinations\nand pools of liquidity. This Section shall not, however, prevent or restrict Banhidi from being employed by an entity that conducts such DMA\nbusiness, provided that Banhidi is not personally involved in the day-to-day activities of such entity in DMA business.\n4\n9. Non-Solicitation Covenant. Banhidi further agrees that he will not (i) through August 1, 2006, directly or indirectly solicit any employee of\nInstinet to leave the employ of Instinet, or otherwise interfere with the relationship of Instinet or any of its Affiliates with any natural person\nthroughout the world who is or was employed by or otherwise engaged to perform services for Instinet or any of its Affiliates at any time during\nwhich Banhidi was employed by Instinet; or (ii) through August 1, 2006, directly or indirectly solicit or initiate contact with any Instinet client to\ntransact with any other company business in which Instinet is engaged, including but not limited to institutional equities, order-matching, clearing\nand after-hours trading, or to reduce or refrain from doing any business with Instinet. The term “client” means any client of Instinet with whom\nBanhidi had personal contact, or for whom he personally transacted business, or whose identity became known to him in connection with his\nrelationship with or employment by Instinet.\n10. Non-Disparagement. Banhidi and Instinet each agree that except, for truthful statements in any proceeding to enforce this Agreement or\npursuant to a valid Subpoena or Court Order, neither will make or publish any statement (orally or in writing) that becomes or reasonably could be\nexpected to become publicly known, or instigate, assist or participate in the making or publication of any such statement, which would libel, slander\nor disparage (whether or not such disparagement legally constitutes libel or slander) the other or, with respect to Instinet, any of its affiliates or any\nother entity or person within Instinet or its affiliates, any of their affairs or operations, or the reputations of any of their past or present officers,\ndirectors, agents, representatives and employees.\n11. Unauthorized Disclosure. Without the prior written consent of Instinet, except to the extent required by an order of a court having\njurisdiction or under subpoena from an\n5\nappropriate government agency, in which event, Banhidi shall use his best efforts to consult with Instinet prior to responding to any such order or\nsubpoena, Banhidi shall not disclose any confidential or proprietary trade secrets, customer lists, drawings, designs, programs, software, protocols,\ninformation regarding product development, marketing plans, sales plans, manufacturing plans, management organization information, operating\npolicies or manuals, business plans, financial records, packaging design or other financial, commercial, business or technical information (a) relating\nto Instinet or any of its Affiliates or (b) that Instinet or any of its Affiliates may receive belonging to suppliers, customers or others who do business\nwith Instinet or any of its Affiliates (collectively, “Confidential Information”) to any third person unless such Confidential Information has been\npreviously disclosed to the public or is in the public domain (other than by reason of Banhidi’s breach of this Section).\nThe parties further agree that the terms of this Agreement, and the negotiations leading up to it shall not be disclosed by the parties to any\nperson, other than in a proceeding to enforce the terms of this Agreement or pursuant to valid subpoena or court order, with the exception of the\nparties’ lawyers, accountants, tax preparers and, with respect to Banhidi, his immediate family, provided that the parties inform any such persons that\nthey must not disclose the same to any person and they agree to that condition. In response to any inquiry from third parties, the parties and their\nattorneys may state only that the parties have resolved the matter.\n12. Rights To Intellectual Property. Banhidi acknowledges and agrees that Instinet is the sole and exclusive owner of all right, title and interest\nin and to all trademarks, copyrights and all other rights in and to all software, computer programs, works of authorship, writings (whether or not\ncopyrightable), inventions (whether or not patentable), discoveries, methods, improvements, processes, ideas, systems, know-how, data, and any\nother intellectual creations of any nature whatsoever that Banhidi developed, or assisted in the development of, in the course of\n6\nhis employment by Instinet (collectively, the “Instinet Intellectual Property”). All Instinet Intellectual Property is deemed to be “work made for\nhire”pursuant to the United States Copyright Act of 1976 (the “Act”) and Instinet thereby owns all right, title and interest in all Instinet Intellectual\nProperty. To the extent that the Instinet Intellectual Property or any part thereof is deemed by any court of competent jurisdiction or any\ngovernmental or regulatory agency not to be a “work made for hire” within the meaning of the Act, the provisions of this section will still control\nand, for the consideration set forth herein, Banhidi hereby irrevocably and absolutely assigns, sets over and grants to Instinet the Instinet Intellectual\nProperty and all of his rights therein. Banhidi further agrees to deliver or execute such documents and to do or refrain from doing such acts as\nInstinet or its nominee may reasonably request to protect its rights in the Instinet Intellectual Property.\n13. Reemployment or Reinstatement. Banhidi agrees not to seek reinstatement or reemployment with Instinet, and hereby waives any rights\nthat may accrue to his from any rejection of any application for employment with Instinet that he may make.\n14. No Admission of Liability. By entering into this Agreement, the parties do not admit to any liability, wrongdoing, breach of any contract,\ncommission of any tort or the violation of any statute or law alleged by the other to have been violated or otherwise.\n15. Entire Agreement and Severability. This Agreement constitutes the complete settlement of all issues and disputes existing between Banhidi\nand Instinet as of the date hereof, and may not be modified except by a suitable writing signed by both Banhidi and Instinet. This Agreement has\nbeen entered into by Banhidi and Instinet voluntarily, knowingly, and upon advice of counsel. If any provision of this Agreement is held to be\ninvalid, the remaining provisions shall remain in full force and effect.\n16. Injunctive Relief. Banhidi acknowledges that a violation on Banhidi’s part of this Agreement, including in particular violation of the\nprovisions of paragraphs 8, 9, 10 and 11\n7\nwould cause irreparable damage to Instinet. Accordingly, Banhidi agrees that Instinet is entitled to injunctive relief from any court of competent\njurisdiction for any actual or threatened violation of this Agreement in addition to any other remedies it may have.\n17. Change in Control. Instinet agrees that, should it experience a Change in Control (as defined herein), it will undertake to ensure that any\nsuccessor entity shall become legally responsible for Instinet’s obligations hereunder. Should Instinet fail to ensure that the successor entity will\nassume Instinet’s obligations hereunder, within 30 days of the event constituting a Change of Control, then all remaining compensation obligations\nowed to Banhidi by Instinet shall become immediately due and payable. For purposes of this paragraph, “Change in Control” shall mean: (i) an\nacquisition in open market purchases of Instinet Common Stock by a third party of the greater of 30% or the percentage then owned in aggregate by\nReuters and its controlled affiliates; (ii) a merger or similar combination following which Instinet’s shareholders prior to the merger are no longer in\ncontrol of the surviving entity; and/or (iii) a sale of substantially all of Instinet’s assets or a liquidation of Instinet.\n18. Breach of Agreement. Banhidi agrees that, without limiting Instinet’s remedies, should he commence, continue, join in, or in any other\nmanner attempt to assert any claim released in connection herewith, or otherwise violate in a material fashion any of the terms of this Agreement,\nInstinet shall not be required to make any further payments to Banhidi pursuant to this Agreement and that Instinet shall be entitled to recover all\npayments already made by it (including interest thereon), in addition to all damages, attorney’s fees and costs, Instinet incurs in connection with the\nBanhidi’s proven breach of this Agreement. Banhidi further agrees that Instinet shall be entitled to the repayments and recovery of damages\ndescribed above without waiver of or prejudice to the release granted by him in connection with this Agreement, and that his proven violation or\nbreach of any provision of this Agreement shall forever release and discharge Instinet from the performance of its obligations arising from the\nAgreement.\n8\n19. Attorney Fees. The parties agree that, in any suit brought by either party for breach of this Agreement by the other, the non-prevailing party\nwill be liable for the reasonable attorneys fees of the prevailing party.\n20. Execution.\na. Banhidi acknowledges that he has had up to forty-five (45) days from his receipt of this document to review it. Upon execution,\nBanhidi or his attorney must promptly send this document by overnight mail to the General Counsel at Instinet. A copy may be retained by Banhidi.\nb. Following his signing of the Agreement, Banhidi has the right to revoke the Agreement at any time within seven (7) calendar days of\nhis signing it, not including the date of his signing (the “Revocation Period”). Notice of Revocation shall be given in writing and sent by overnight\nmail no later than the seventh day following the date Banhidi signs this Agreement to General Counsel, Instinet Group Incorporated, 3 Times Square,\nNew York, NY 10036. If Banhidi does not revoke the Agreement, this Agreement shall be deemed to be effective and to be enforceable as of the last\ndate set forth opposite any signature hereto. If Banhidi gives Notice of Revocation during the Revocation Period in the manner specified above, this\nAgreement shall become null and void and all rights and claims of the parties which would have existed, but for the execution of this Agreement\nshall be restored.\n21. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the law of the State of New York. An\naction for breach of this Agreement may be brought in any court of competent jurisdiction located in New York.\n22. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the heirs, successors and assigns of the\nparties hereto.\n9\nTHE UNDERSIGNED, intending to be legally bound, have executed this Agreement on this 27th day of July, 2005.\nANDREW BANHIDI\nINSTINET GROUP INCORPORATED\n/s/ Andrew Banhidi\nBy: /s/ Alexander Goor\nName: Alexander Goor\nTitle: Co-President\nSTATEMENT BY THE EMPLOYEE WHO IS SIGNING BELOW: INSTINET HAS ADVISED ME IN WRITING TO CONSULT WITH AN\nATTORNEY PRIOR TO EXECUTING THIS RELEASE. I HAVE CAREFULLY READ AND FULLY UNDERSTAND THE PROVISIONS OF\nTHIS RELEASE AND HAVE HAD SUFFICIENT TIME AND OPPORTUNITY TO CONSULT WITH MY PERSONAL TAX, FINANCIAL AND\nLEGAL ADVISORS PRIOR TO EXECUTING THIS DOCUMENT, AND I INTEND TO BE LEGALLY BOUND BY ITS TERMS. I\nUNDERSTAND THAT I MAY REVOKE THIS RELEASE WITHIN SEVEN (7) DAYS FOLLOWING MY SIGNING, AND THIS RELEASE\nWILL NOT BECOME ENFORCEABLE OR EFFECTIVE UNTIL THAT SEVEN (7) DAY PERIOD HAS EXPIRED.\nANDREW BANHIDI\nSigned: /s/ Andrew Banhidi\nTHIS IS A RELEASE. READ CAREFULLY BEFORE SIGNING .\n10
c47091363755b1f8e9848e685072facd.pdf	effective_date jurisdiction party term	EX-99.(D)(2)(II) 11 d344651dex99d2ii.htm EX-(D)(2)(II)\nExhibit (d)(2)(ii)\nGIGPEAK, INC.\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this “Agreement”), effective 1/16, 2017 (“Effective Date”), is entered into by\nand between GigPeak, Inc., a Delaware corporation having offices at 130 Baytech Drive, San Jose, CA 95134 (“GigPeak”), and\nIntegrated Device Technology, Inc., a Delaware corporation having offices at 6024 Silver Creek Valley Road, San Jose, CA 95138\n(“Investor”) (each herein referred to individually as a “Party,” or collectively as the “Parties”). In consideration of the covenants\nand conditions contained herein, the Parties hereby agree to the following:\nPage 1\n1. PURPOSE\nThe Parties wish to explore a business strategic opportunity of mutual\ninterest (the “Opportunity”), and in connection with the Opportunity, each Party has\ndisclosed, and may further disclose certain confidential technical and business\ninformation (in such capacity a Party disclosing the information, the “Discloser”) to\nthe other Party (in such capacity a Party receiving the information, the “Recipient”),\nthat Discloser desires Recipient to treat as confidential.\n2. CONFIDENTIAL INFORMATION\nA. Definition.\n“ Confidential Information” means (a) any information disclosed\n(directly or indirectly) by Discloser to Recipient pursuant to this Agreement that is in\nwritten, graphic, machine readable or other tangible form objects (including, without\nlimitation, documents, software, prototypes, samples, data sets, and plant and\nequipment) and is marked “Confidential,” “Proprietary” or in some other manner to\nindicate its confidential nature; (b) oral information disclosed (directly or indirectly) by\nDiscloser to Recipient pursuant to this Agreement, provided that such information is\ndesignated as confidential at the time of disclosure and reduced to a written summary\nby Discloser that is marked in a manner to indicate its confidential nature and delivered\nto Recipient within thirty (30) days after its oral disclosure; and (c) information\notherwise reasonably expected to be treated in a confidential manner under the\ncircumstances of disclosure under this Agreement or by the nature of the information\nitself. Confidential Information may include information of a third party that is in the\npossession of Discloser and is disclosed to Recipient under this Agreement.\nB.\nExceptions.\nConfidential Information shall not, however, include any\ninformation that (i) was publicly known or made generally available without a duty of\nconfidentiality prior to the time of disclosure by Discloser to Recipient; (ii) becomes\npublicly known or made generally available without a duty of confidentiality after\ndisclosure by Discloser to Recipient through no wrongful action or inaction of\nRecipient; (iii) is in the rightful possession of Recipient without confidentiality\nobligations at the time of disclosure by Discloser to Recipient as shown by Recipient’s\nthen-contemporaneous written files and records kept in the ordinary course of\nbusiness; (iv) is obtained by Recipient from a third party without an accompanying\nduty of confidentiality without a breach of such third party’s obligations of\nconfidentiality; or (v) is independently developed by Recipient without use of or\nreference to Discloser’s Confidential Information, as shown by written records and\nother competent evidence prepared contemporaneously with such independent\ndevelopment.\nC. Compelled Disclosure. If Recipient becomes legally compelled to disclose any\nConfidential Information, other than pursuant to a confidentiality agreement, Recipient\nwill provide Discloser prompt written notice, if legally permissible, and will use its\nbest efforts to assist Discloser in seeking a protective order or another appropriate\nremedy. If Discloser waives Recipient’s compliance with this Agreement or fails to\nobtain a protective order or other appropriate remedy, Recipient will furnish only that\nportion of the Confidential\nInformation that is legally required to be disclosed, provided that any Confidential\nInformation so disclosed shall maintain its confidentiality protection for all purposes\nother than such legally compelled disclosure.\n3. NONUSE AND NONDISCLOSURE\nRecipient shall not use any Confidential Information of Discloser for any\npurpose except to evaluate and engage in discussions concerning the Opportunity.\nRecipient shall not disclose any Confidential Information of Discloser to third parties\nor to Recipient’s employees, except that, subject to Section 4 below, Recipient may\ndisclose Discloser ’s Confidential Information to those employees of Recipient who are\nrequired to have the information in order to evaluate or engage in discussions\nconcerning the Opportunity. Recipient shall be responsible for any breach of this\nAgreement by its employees, agents and other representatives, it being understood that\nsuch responsibility shall be in addition to and not by way of limitation of any right or\nremedy Discloser may have against such representatives with respect to any such\nbreach. Recipient shall not reverse engineer, disassemble, or decompile any prototypes,\nsoftware, samples, or other tangible objects that embody Discloser’s Confidential\nInformation and that are provided to Recipient under this Agreement.\n4. MAINTENANCE OF CONFIDENTIALITY\nRecipient shall take reasonable measures to protect the secrecy of and\navoid disclosure and unauthorized use of the Confidential Information of Discloser.\nWithout limiting the foregoing, Recipient shall take at least those measures that it\nemploys to protect its own confidential information of a similar nature and shall ensure\nthat its employees who have access to Confidential Information of Discloser have\nsigned a nonuse and nondisclosure agreement in content at least as protective of\nDiscloser’s Confidential Information as the provisions of this Agreement, prior to any\ndisclosure of Confidential Information to such employees. The Recipient shall not\nmake any copies of the Confidential Information of Discloser unless the same are\npreviously approved in writing by Discloser. The Recipient shall reproduce Discloser ’s\nproprietary rights notices on any such authorized copies in the same manner in which\nsuch notices were set forth in or on the original. The Recipient shall promptly notify\nDiscloser of any unauthorized use or disclosure, or suspected unauthorized use or\ndisclosure, of Discloser’s Confidential Information of which Recipient becomes aware.\n5. NO OBLIGATION\nNothing in this Agreement shall obligate either Party to (a) disclose any\nConfidential Information, which shall be disclosed, if at all, solely at the Discloser ’s\noption, or (b) proceed with any transaction between them, and each Party reserves the\nright, in its sole discretion, to terminate the discussions contemplated by this\nAgreement concerning the Opportunity. Nothing in this Agreement shall be construed\nto restrict either Party’s use or disclosure of its own Confidential Information.\nPage 2\n6. NO WARRANTY\nALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS .”\nNEITHER PARTY MAKES ANY WARRANTIES, EXPRESS , IMPLIED OR\nOTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR\nPERFORMANCE OF ANY CONFIDENTIAL INFORMATION, OR WITH\nRESPECT TO NON-INFRINGEMENT OR OTHER VIOLATION OF ANY\nINTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY OR OF RECIPIENT.\n7. RETURN OF MATERIALS\nAll documents and other tangible objects containing or representing\nConfidential Information that have been disclosed by Discloser to Recipient, and all\ncopies or extracts thereof or notes derived therefrom that are in the possession of\nRecipient, shall be and remain the property of Discloser and shall be promptly returned\nto Discloser or destroyed (with proof of such destruction), at Discloser’s choice, either\nupon the Parties’ termination of discussions regarding the Opportunity or upon\nDiscloser ’s prior written request. Notwithstanding the foregoing, if compliance with\nthe foregoing would violate any applicable law, regulation or applicable professional\nstandards of the American Institute of Certified Public Accountants, Public Company\nAccounting Oversight Board or state boards of accountancy, then such information\nmay be retained provided that it is used for no other purpose than to evidence\nRecipient’s or its representatives’ compliance with such law, regulation or professional\nstandard, and that such Information is maintained in confidence as set forth in this\nAgreement.\n8. NO LICENSE\nNothing in this Agreement is intended to grant any rights to Recipient\nunder any patent, mask work right, copyright or other intellectual property right of\nDiscloser, nor shall this Agreement grant Recipient any rights in or to the Confidential\nInformation of Discloser other than the limited right to review such Confidential\nInformation solely for the purpose of determining whether to enter into a transaction\nconcerning the Opportunity as expressly set forth in Section 3 of this Agreement.\n9. NON-SOLICITATION\nEach party hereby agrees that for a period of two (2) years from file date\nof this Agreement, without the prior written consent of the other party in the event a\ntransaction related to the Opportunity is not consummated, it will not (a) solicit to hire\n(or cause or seek to cause to leave the employ of the other party’ any executive of the\nother party or any other employee of other party or any subsidiary with whom it has\nhad contact or who (or whose performance) became known to it in connection with the\nprocess contemplated by this Agreement (provided, however, that a party is not\nrestricted from hiring any such individual who is hired as a result of such individual\nresponding to a general advertisement for employment) or (b) hold any discussions\nregarding the other party or any of its subsidiaries with any suppliers, customers and/or\nother material business relationships of the other party or any of its subsidiaries, except\nfor those contacts or discussions held in the ordinary course of business.\n10. STANDSTILL AGREEMENT\nInvestor hereby agrees that, for a period ending on the earlier of one\n(1) years from the date of this Agreement or the occurrence of a Significant Event (as\ndefined below), neither the Investor nor any of its affiliates or representatives to whom\nit has provided Confidential Information will, unless first invited (on an unsolicited\nbasis in the case of proposed activities involving persons other than GigPeak or its\nsubsidiaries) by GigPeak’s Board of Directors, or a special committee thereof, in\nwriting, directly or indirectly:\n(a)\nacquire, offer or propose to acquire, or agree or seek to acquire,\ndirectly or indirectly, by purchase or otherwise, greater than an aggregate of an\nadditional 5% of the outstanding number of shares of any class of voting securities (as\ndefined below) of GigPeak or any subsidiary thereof, or of any successor to or person\nin control of GigPeak (other than as a result of a Significant Event) or direct or indirect\nrights or options to acquire any such securities, or any material portion of the assets of\nGigPeak or any subsidiary or division thereof, or of any such successor or controlling\nperson (other than as a result of a Significant Event);\n(b) make any public announcement with respect to, or enter into or agree\nto enter into, offer, propose or seek to enter into, or otherwise be involved in or part of,\ndirectly or indirectly, any acquisition transaction or other business combination\ninvolving all or part of GigPeak or its subsidiaries or any acquisition transaction for all\nor a material portion of the assets of GigPeak or any subsidiary or any of their\nrespective businesses;\n(c)\nmake, or in any way participate in, directly or indirectly, any\n“ s olicitation” of “proxies” (as such terms are used in the rules of the Securities and\nExchange Commission) to vote, or seek to advise or influence any person with respect\nto the voting of, any voting securities of GigPeak or any subsidiary thereof;\n(d) form, join or in any way participate in a “group” (within the meaning\nof Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) (a “13D\nGroup”) with respect to any voting securities of GigPeak or any of its subsidiaries;\n(e)\ndirectly or indirectly enter into any discussions, negotiations,\narrangements or understandings with any other person with respect to any of the\nforegoing activities or publicly propose any of such activities to any other person; or\n(f) disclose any intention, plan or arrangement consistent with any of the\nforegoing in a manner that would require public disclosure thereof by GigPeak.\nInvestor acknowledges that its activities not expressly prohibited by this Section\n10 may be subject to applicable federal and state securities laws.\nFor purposes of this Agreement, (i) a “Significant Event” means (A) the acquisition\nby any person or 13D Group of beneficial ownership of voting securities of GigPeak\nrepresenting 15% or more of the then outstanding voting securities of GigPeak; (B) the\nannouncement or commencement by any person or 13D Group of a tender or exchange\noffer to acquire voting securities of GigPeak which, if successful, would result in such\nperson or 13D Group owning, when combined with any other voting securities of\nGigPeak owned by such person or 13D Group, 15% or more of the then outstanding\nvoting securities of GigPeak; (C) file entry into by GigPeak, or determination by\nGigPeak to seek to enter into, of any merger, sale or other business combination\ntransaction pursuant to which the outstanding shares of common stock of GigPeak\nwould be converted into cash or securities of another person or 13D Group or 50% or\nmore of the then outstanding shares of common stock of GigPeak would be owned by\npersons other than the then current holders of shares of common stock of GigPeak, or\nwhich would result in all or a substantial portion of GigPeak’s assets being sold to any\nperson or 13D Group; (D) GigPeak or any of its subsidiaries makes an assignment for\nthe benefit of creditors or commences any proceeding under any bankruptcy,\nreorganization, insolvency, dissolution or liquidation law of any jurisdiction; or (E) any\nsuch petition is filed or any such proceeding is commenced against GigPeak or any of\nits subsidiaries and either (1) GigPeak or such subsidiary by any act indicates its\napproval thereof, consent thereto or acquiescence therein or (2) such petition,\napplication or proceeding is not dismissed within 30 days; (ii) “person” means any\ncorporation, company, group, partnership or other entity or individual (including the\nmedia); and (iii) “voting securities” means at any time shares of any class of capital\nstock of GigPeak which are then entitled to vote\nIN WITNESS WHEREOF, the Parties by their duly authorized representatives have executed this Agreement as of the Effective Date.\nPage 3\ngenerally in the election of directors and any securities convertible or exchangeable\ninto or exercisable for any such shares; provided, that for purposes of this definition\nany securities of GigPeak which at such time are convertible or exchangeable into or\nexercisable for such shares of GigPeak shall be deemed to have been so converted,\nexchanged or exercised.\n11. EXPORT RESTRICTIONS\nAny software and other technical information disclosed under this\nAgreement may be subject to restrictions and controls imposed by the Export\nAdministration Act, Export Administration Regulations and other laws and regulations\nof the United States and any other applicable government or jurisdiction, as enacted\nfrom time to time (the “Acts”). The Parties shall comply with all restrictions and\ncontrols imposed by the Acts.\n12. NO GUARANTY\nRecipient acknowledges and agrees that Discloser is not making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of\nthe Confidential Information, and Disclosure will not have any liability to Recipient or\nany other person resulting from Recipient’s use of the Confidential Information. Only\nthose representations or warranties that are made to Recipient in a definitive agreement\nwhen, as , and if executed, and subject to such limitations and restrictions as may be\nspecified in such definitive agreement, will have any legal effect.\n13. TERM\nThe obligations of Recipient under this Agreement shall survive until such\ntime as all Confidential Information of Discloser hereunder qualifies as any of the\nexceptions to Confidential Information set forth in Section 2.B through no wrongful\naction or inaction of Recipient.\n14. REMEDIES\nRecipient agrees that any violation or threatened violation of this\nAgreement may cause irreparable injury to Discloser, entitling Discloser to seek\ninjunctive relief in addition to all legal remedies. In the event of litigation relating to\nthis Agreement, if a court of competent jurisdiction determines in a final,\nnonappealable order that this Agreement has been breached by the Investor or its\nrepresentatives, then the Investor will reimburse GigPeak for its costs and expenses\n(including legal fees and expenses) incurred in connection with all such litigation.\n15. MISCELLANEOUS\nThis Agreement shall bind and inure to the benefit of the Parties and their\nrespective successors and permitted assigns. Neither Party may assign or otherwise\ntransfer this Agreement without the prior written consent of the other Party, except that\neither Party may assign this Agreement without consent in connection with a merger,\nreorganization, consolidation, or sale of all or substantially all of the assets to which\nthis Agreement pertains, provided that the assigning Party provides prompt written\nnotice to the other Party prior to any such permitted assignment. Any assignment or\ntransfer of this Agreement in violation of the foregoing shall be null and void. This\nAgreement will be interpreted and construed in accordance with the laws of the State\nof California, without regard to conflict of law principles. Each Party hereby represents\nand warrants that the persons executing this Agreement on its behalf have express\nauthority to do so, and, in so doing, to bind such Party thereto. This Agreement\ncontains the entire agreement between the Parties with respect to the Opportunity and\nsupersedes all prior written and oral agreements between the Parties regarding the\nOpportunity. Recipient shall not have any obligation, express or implied by law, with\nrespect to trade secret or proprietary information of Discloser disclosed under this\nAgreement except as set forth herein. If a court or other body of competent jurisdiction\nfinds, or the Parties mutually believe, any provision of this Agreement, or portion\nthereof, to be invalid or unenforceable, such provision will be enforced to the\nmaximum extent permissible so as to effect the intent of the Parties, and the remainder\nof this Agreement will continue in full force and effect. No provision of this\nAgreement may be waived except by a writing executed by the Party against whom the\nwaiver is to be effective. A Party’s failure to enforce any provision of this Agreement\nshall neither be construed as a waiver of the provision nor prevent the Party from\nenforcing any other provision of this Agreement. No provision of this Agreement may\nbe amended or otherwise modified except by a writing signed by the Parties to this\nAgreement. The Parties may execute this Agreement in counterparts, each of which is\ndeemed an original, but all of which together constitute one and the same agreement.\nThis Agreement may be delivered by facsimile transmission, and facsimile copies of\nexecuted signature pages shall be binding as originals.\n16. DISPUTES\nAll disputes arising out of this Agreement will be subject to the exclusive\njurisdiction and venue of the state courts located in Santa Clara County, California and\nthe federal courts located in the Northern District of California and each Party hereby\nconsents to the personal jurisdiction thereof.\nGIGPEAK, INC.\nBy:\n/s/ Avi Katz\nName: Avi Katz\nTitle: CEO\nINTEGRATED DEVICE TECHNOLOGY, INC.\nBy:\n/s/ Sailesh Chittipeddi\nName: Sailesh Chittipeddi\nTitle: VP Global Operations & CTO	EX-99.(D)(2)(II) 11 d344651dex99d2ii.htm EX-(D)(2)(IL)\nExhibit (d)(2)(ii)\nGIGPEAK, INC.\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this “Agreement”), effective 1/16, 2017 (“Effective Date”), is entered into by\nand between GigPeak, Inc., a Delaware corporation having offices at 130 Baytech Drive, San Jose, CA 95134 (“GigPeak”), and\nIntegrated Device Technology, Inc., a Delaware corporation having offices at 6024 Silver Creek Valley Road, San Jose, CA 95138\n(“Investor™) (each herein referred to individually as a “Party,” or collectively as the “Parties”). In consideration of the covenants\nand conditions contained herein, the Parties hereby agree to the following: 1. PURPOSE\nThe Parties wish to explore a business strategic opportunity of mutual\ninterest (the “Opportunity”), and in connection with the Opportunity, each Party has\ndisclosed, and may further disclose certain confidential technical and business\ninformation (in such capacity a Party disclosing the information, the “Discloser”) to\nthe other Party (in such capacity a Party receiving the information, the “Recipient™),\nthat Discloser desires Recipient to treat as confidential.\n2. CONFIDENTIAL INFORMATION\nA. Definition. “Confidential Information” means (a) any information disclosed\n(directly or indirectly) by Discloser to Recipient pursuant to this Agreement that is in\nwritten, graphic, machine readable or other tangible form objects (including, without\nlimitation, documents, software, prototypes, samples, data sets, and plant and\nequipment) and is marked “Confidential,” “Proprietary” or in some other manner to\nindicate its confidential nature; (b) oral information disclosed (directly or indirectly) by\nDiscloser to Recipient pursuant to this Agreement, provided that such information is\ndesignated as confidential at the time of disclosure and reduced to a written summary\nby Discloser that is marked in a manner to indicate its confidential nature and delivered\nto Recipient within thirty (30) days after its oral disclosure; and (c) information\notherwise reasonably expected to be treated in a confidential manner under the\ncircumstances of disclosure under this Agreement or by the nature of the information\nitself. Confidential Information may include information of a third party that is in the\npossession of Discloser and is disclosed to Recipient under this Agreement.\nB. Exceptions. Confidential Information shall not, however, include any\ninformation that (i) was publicly known or made generally available without a duty of\nconfidentiality prior to the time of disclosure by Discloser to Recipient; (ii) becomes\npublicly known or made generally available without a duty of confidentiality after\ndisclosure by Discloser to Recipient through no wrongful action or inaction of\nRecipient; (iii) is in the rightful possession of Recipient without confidentiality\nobligations at the time of disclosure by Discloser to Recipient as shown by Recipient’s\nthen-contemporaneous written files and records kept in the ordinary course of\nbusiness; (iv) is obtained by Recipient from a third party without an accompanying\nduty of confidentiality without a breach of such third party’s obligations of\nconfidentiality; or (v) is independently developed by Recipient without use of or\nreference to Discloser’s Confidential Information, as shown by written records and\nother competent evidence prepared contemporaneously with such independent\ndevelopment.\nC.  Compelled Disclosure. If Recipient becomes legally compelled to disclose any\nConfidential Information, other than pursuant to a confidentiality agreement, Recipient\nwill provide Discloser prompt written notice, if legally permissible, and will use its\nbest efforts to assist Discloser in seeking a protective order or another appropriate\nremedy. If Discloser waives Recipient’s compliance with this Agreement or fails to\nobtain a protective order or other appropriate remedy, Recipient will furnish only that\nportion of the Confidential\nInformation that is legally required to be disclosed, provided that any Confidential\nInformation so disclosed shall maintain its confidentiality protection for all purposes\nother than such legally compelled disclosure.\n3. NONUSE AND NONDISCLOSURE\nRecipient shall not use any Confidential Information of Discloser for any\npurpose except to evaluate and engage in discussions concerning the Opportunity.\nRecipient shall not disclose any Confidential Information of Discloser to third parties\nor to Recipient’s employees, except that, subject to Section 4 below, Recipient may\ndisclose Discloser’s Confidential Information to those employees of Recipient who are\nrequired to have the information in order to evaluate or engage in discussions\nconcerning the Opportunity. Recipient shall be responsible for any breach of this\nAgreement by its employees, agents and other representatives, it being understood that\nsuch responsibility shall be in addition to and not by way of limitation of any right or\nremedy Discloser may have against such representatives with respect to any such\nbreach. Recipient shall not reverse engineer, disassemble, or decompile any prototypes,\nsoftware, samples, or other tangible objects that embody Discloser’s Confidential\nInformation and that are provided to Recipient under this Agreement.\n4. MAINTENANCE OF CONFIDENTIALITY\nRecipient shall take reasonable measures to protect the secrecy of and\navoid disclosure and unauthorized use of the Confidential Information of Discloser.\nWithout limiting the foregoing, Recipient shall take at least those measures that it\nemploys to protect its own confidential information of a similar nature and shall ensure\nthat its employees who have access to Confidential Information of Discloser have\nsigned a nonuse and nondisclosure agreement in content at least as protective of\nDiscloser’s Confidential Information as the provisions of this Agreement, prior to any\ndisclosure of Confidential Information to such employees. The Recipient shall not\nmake any copies of the Confidential Information of Discloser unless the same are\npreviously approved in writing by Discloser. The Recipient shall reproduce Discloser’s\nproprietary rights notices on any such authorized copies in the same manner in which\nsuch notices were set forth in or on the original. The Recipient shall promptly notify\nDiscloser of any unauthorized use or disclosure, or suspected unauthorized use or\ndisclosure, of Discloser’s Confidential Information of which Recipient becomes aware.\n5. NO OBLIGATION\nNothing in this Agreement shall obligate either Party to (a) disclose any\nConfidential Information, which shall be disclosed, if at all, solely at the Discloser’s\noption, or (b) proceed with any transaction between them, and each Party reserves the\nright, in its sole discretion, to terminate the discussions contemplated by this\nAgreement concerning the Opportunity. Nothing in this Agreement shall be construed\nto restrict either Party’s use or disclosure of its own Confidential Information.\nPage 1\f6. NO WARRANTY\nALL CONFIDENTIAL INFORMATION IS PROVIDED “AS 1IS.”\nNEITHER PARTY MAKES ANY WARRANTIES, EXPRESS, IMPLIED OR\nOTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR\nPERFORMANCE OF ANY CONFIDENTIAL INFORMATION, OR WITH\nRESPECT TO NON-INFRINGEMENT OR OTHER VIOLATION OF ANY\nINTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY OR OF RECIPIENT.\n7. RETURN OF MATERIALS\nAll documents and other tangible objects containing or representing\nConfidential Information that have been disclosed by Discloser to Recipient, and all\ncopies or extracts thereof or notes derived therefrom that are in the possession of\nRecipient, shall be and remain the property of Discloser and shall be promptly returned\nto Discloser or destroyed (with proof of such destruction), at Discloser’s choice, either\nupon the Parties’ termination of discussions regarding the Opportunity or upon\nDiscloser’s prior written request. Notwithstanding the foregoing, if compliance with\nthe foregoing would violate any applicable law, regulation or applicable professional\nstandards of the American Institute of Certified Public Accountants, Public Company\nAccounting Oversight Board or state boards of accountancy, then such information\nmay be retained provided that it is used for no other purpose than to evidence\nRecipient’s or its representatives’ compliance with such law, regulation or professional\nstandard, and that such Information is maintained in confidence as set forth in this\nAgreement.\n8. NO LICENSE\nNothing in this Agreement is intended to grant any rights to Recipient\nunder any patent, mask work right, copyright or other intellectual property right of\nDiscloser, nor shall this Agreement grant Recipient any rights in or to the Confidential\nInformation of Discloser other than the limited right to review such Confidential\nInformation solely for the purpose of determining whether to enter into a transaction\nconcerning the Opportunity as expressly set forth in Section 3 of this Agreement.\n9. NON-SOLICITATION\nEach party hereby agrees that for a period of two (2) years from file date\nof this Agreement, without the prior written consent of the other party in the event a\ntransaction related to the Opportunity is not consummated, it will not (a) solicit to hire\n(or cause or seek to cause to leave the employ of the other party’ any executive of the\nother party or any other employee of other party or any subsidiary with whom it has\nhad contact or who (or whose performance) became known to it in connection with the\nprocess contemplated by this Agreement (provided, however, that a party is not\nrestricted from hiring any such individual who is hired as a result of such individual\nresponding to a general advertisement for employment) or (b) hold any discussions\nregarding the other party or any of its subsidiaries with any suppliers, customers and/or\nother material business relationships of the other party or any of its subsidiaries, except\nfor those contacts or discussions held in the ordinary course of business.\n10. STANDSTILL AGREEMENT\nInvestor hereby agrees that, for a period ending on the earlier of one\n(1) years from the date of this Agreement or the occurrence of a Significant Event (as\ndefined below), neither the Investor nor any of its affiliates or representatives to whom\nit has provided Confidential Information will, unless first invited (on an unsolicited\nbasis in the case of proposed activities involving persons other than GigPeak or its\nsubsidiaries) by GigPeak’s Board of Directors, or a special committee thereof, in\nwriting, directly or indirectly:\n(a) acquire, offer or propose to acquire, or agree or seek to acquire,\ndirectly or indirectly, by purchase or otherwise, greater than an aggregate of an\nadditional 5% of the outstanding number of shares of any class of voting securities (as\ndefined below) of GigPeak or any subsidiary thereof, or of any successor to or person\nin control of GigPeak (other than as a result of a Significant Event) or direct or indirect\nrights or options to acquire any such securities, or any material portion of the assets of\nGigPeak or any subsidiary or division thereof, or of any such successor or controlling\nperson (other than as a result of a Significant Event);\n(b) make any public announcement with respect to, or enter into or agree\nto enter into, offer, propose or seek to enter into, or otherwise be involved in or part of,\ndirectly or indirectly, any acquisition transaction or other business combination\ninvolving all or part of GigPeak or its subsidiaries or any acquisition transaction for all\nor a material portion of the assets of GigPeak or any subsidiary or any of their\nrespective businesses;\n(@] make, or in any way participate in, directly or indirectly, any\n“solicitation” of “proxies” (as such terms are used in the rules of the Securities and\nExchange Commission) to vote, or seek to advise or influence any person with respect\nto the voting of, any voting securities of GigPeak or any subsidiary thereof;\n(d) form, join or in any way participate in a “group” (within the meaning\nof Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) (a “13D\nGroup”) with respect to any voting securities of GigPeak or any of its subsidiaries;\n(e) directly or indirectly enter into any discussions, negotiations,\narrangements or understandings with any other person with respect to any of the\nforegoing activities or publicly propose any of such activities to any other person; or\n(f) disclose any intention, plan or arrangement consistent with any of the\nforegoing in a manner that would require public disclosure thereof by GigPeak.\nInvestor acknowledges that its activities not expressly prohibited by this Section\n10 may be subject to applicable federal and state securities laws.\nFor purposes of this Agreement, (i) a “Significant Event” means (A) the acquisition\nby any person or 13D Group of beneficial ownership of voting securities of GigPeak\nrepresenting 15% or more of the then outstanding voting securities of GigPeak; (B) the\nannouncement or commencement by any person or 13D Group of a tender or exchange\noffer to acquire voting securities of GigPeak which, if successful, would result in such\nperson or 13D Group owning, when combined with any other voting securities of\nGigPeak owned by such person or 13D Group, 15% or more of the then outstanding\nvoting securities of GigPeak; (C) file entry into by GigPeak, or determination by\nGigPeak to seek to enter into, of any merger, sale or other business combination\ntransaction pursuant to which the outstanding shares of common stock of GigPeak\nwould be converted into cash or securities of another person or 13D Group or 50% or\nmore of the then outstanding shares of common stock of GigPeak would be owned by\npersons other than the then current holders of shares of common stock of GigPeak, or\nwhich would result in all or a substantial portion of GigPeak’s assets being sold to any\nperson or 13D Group; (D) GigPeak or any of its subsidiaries makes an assignment for\nthe benefit of creditors or commences any proceeding under any bankruptcy,\nreorganization, insolvency, dissolution or liquidation law of any jurisdiction; or (E) any\nsuch petition is filed or any such proceeding is commenced against GigPeak or any of\nits subsidiaries and either (1) GigPeak or such subsidiary by any act indicates its\napproval thereof, consent thereto or acquiescence therein or (2) such petition,\napplication or proceeding is not dismissed within 30 days; (ii) “person” means any\ncorporation, company, group, partnership or other entity or individual (including the\nmedia); and (iii) “veoting securities” means at any time shares of any class of capital\nstock of GigPeak which are then entitled to vote\nPage 2\fgenerally in the election of directors and any securities convertible or exchangeable\ninto or exercisable for any such shares; provided, that for purposes of this definition\nany securities of GigPeak which at such time are convertible or exchangeable into or\nexercisable for such shares of GigPeak shall be deemed to have been so converted,\nexchanged or exercised.\n11. EXPORT RESTRICTIONS\nAny software and other technical information disclosed under this\nAgreement may be subject to restrictions and controls imposed by the Export\nAdministration Act, Export Administration Regulations and other laws and regulations\nof the United States and any other applicable government or jurisdiction, as enacted\nfrom time to time (the “Acts”). The Parties shall comply with all restrictions and\ncontrols imposed by the Acts.\n12. NO GUARANTY\nRecipient acknowledges and agrees that Discloser is not making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of\nthe Confidential Information, and Disclosure will not have any liability to Recipient or\nany other person resulting from Recipient’s use of the Confidential Information. Only\nthose representations or warranties that are made to Recipient in a definitive agreement\nwhen, as, and if executed, and subject to such limitations and restrictions as may be\nspecified in such definitive agreement, will have any legal effect.\n13. TERM\nThe obligations of Recipient under this Agreement shall survive until such\ntime as all Confidential Information of Discloser hereunder qualifies as any of the\nexceptions to Confidential Information set forth in Section 2.B through no wrongful\naction or inaction of Recipient.\n14. REMEDIES\nRecipient agrees that any violation or threatened violation of this\nAgreement may cause irreparable injury to Discloser, entitling Discloser to seek\ninjunctive relief in addition to all legal remedies. In the event of litigation relating to\nthis Agreement, if a court of competent jurisdiction determines in a final,\nnonappealable order that this Agreement has been breached by the Investor or its\nrepresentatives, then the Investor will reimburse GigPeak for its costs and expenses\n(including legal fees and expenses) incurred in connection with all such litigation.\n15. MISCELLANEOUS\nThis Agreement shall bind and inure to the benefit of the Parties and their\nrespective successors and permitted assigns. Neither Party may assign or otherwise\ntransfer this Agreement without the prior written consent of the other Party, except that\neither Party may assign this Agreement without consent in connection with a merger,\nreorganization, consolidation, or sale of all or substantially all of the assets to which\nthis Agreement pertains, provided that the assigning Party provides prompt written\nnotice to the other Party prior to any such permitted assignment. Any assignment or\ntransfer of this Agreement in violation of the foregoing shall be null and void. This\nAgreement will be interpreted and construed in accordance with the laws of the State\nof California, without regard to conflict of law principles. Each Party hereby represents\nand warrants that the persons executing this Agreement on its behalf have express\nauthority to do so, and, in so doing, to bind such Party thereto. This Agreement\ncontains the entire agreement between the Parties with respect to the Opportunity and\nsupersedes all prior written and oral agreements between the Parties regarding the\nOpportunity. Recipient shall not have any obligation, express or implied by law, with\nrespect to trade secret or proprietary information of Discloser disclosed under this\nAgreement except as set forth herein. If a court or other body of competent jurisdiction\nfinds, or the Parties mutually believe, any provision of this Agreement, or portion\nthereof, to be invalid or unenforceable, such provision will be enforced to the\nmaximum extent permissible so as to effect the intent of the Parties, and the remainder\nof this Agreement will continue in full force and effect. No provision of this\nAgreement may be waived except by a writing executed by the Party against whom the\nwaiver is to be effective. A Party’s failure to enforce any provision of this Agreement\nshall neither be construed as a waiver of the provision nor prevent the Party from\nenforcing any other provision of this Agreement. No provision of this Agreement may\nbe amended or otherwise modified except by a writing signed by the Parties to this\nAgreement. The Parties may execute this Agreement in counterparts, each of which is\ndeemed an original, but all of which together constitute one and the same agreement.\nThis Agreement may be delivered by facsimile transmission, and facsimile copies of\nexecuted signature pages shall be binding as originals.\n16. DISPUTES\nAll disputes arising out of this Agreement will be subject to the exclusive\njurisdiction and venue of the state courts located in Santa Clara County, California and\nthe federal courts located in the Northern District of California and each Party hereby\nconsents to the personal jurisdiction thereof.\nIN WITNESS WHEREOF, the Parties by their duly authorized representatives have executed this Agreement as of the Effective Date. GIGPEAK, INC.\nBy: /s/ Avi Katz\nName: Avi Katz\nTitle: CEO\nINTEGRATED DEVICE TECHNOLOGY, INC.\nBy: /s/ Sailesh Chittipeddi\nName:  Sailesh Chittipeddi\nTitle: VP Global Operations & CTO\nPage 3	EX-99.(D)(2)(II) 11 d344651dex99d2ii.htn EX-(D)(2)(II)\nExhibit (d)(2)(ii)\nGIGPEAK, INC.\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this "Agreement"), effective 1/16, 2017 ("Effective Date"), is\nentered\ninto\nby\nand\nbetween GigPeak, Inc., a Delaware corporation having offices at 130 Baytech Drive, San Jose, CA 95134 ("GigPeak"), and\nIntegrated Device Technology, Inc., a Delaware corporation having offices at 6024 Silver Creek Valley Road, San Jose, CA 95138\n("Investor") (each herein referred to individually as a "Party," or collectively as the "Parties"). In consideration of the covenants\nand conditions contained herein, the Parties hereby agree to the following:\n1. PURPOSE\nInformation that is legally required to be disclosed, provided that any Confidential\nThe Parties wish to explore a business strategic opportunity of mutual\nInformation so disclosed shall maintain its confidentiality protection for all purposes\ninterest (the "Opportunity"), and in connection with the Opportunity, each Party has\nother than such legally compelled disclosure.\ndisclosed, and may further disclose certain confidential technical and business\n3.\nNONUSE AND NONDISCLOSURE\ninformation (in such capacity a Party disclosing the information, the "Discloser") to\nthe other Party (in such capacity a Party receiving the information, the "Recipient"),\nRecipient shall not use any Confidential Information of Discloser for any\nthat Discloser desires Recipient to treat as confidential.\npurpose except to evaluate and engage in discussions concerning the Opportunity.\nRecipient shall not disclose any Confidential Information of Discloser to third parties\n2.\nCONFIDENTIAL INFORMATION\nor to Recipient's employees, except that, subject to Section 4 below, Recipient may\ndisclose Discloser's Confidential Information to those employees of Recipient who are\nA. Definition. "Confidential Information" means (a) any information disclosed\n(directly or indirectly) by Discloser to Recipient pursuant to this Agreement that is in\nrequired to have the information in order to evaluate or engage in discussions\nwritten, graphic, machine readable or other tangible form objects (including, without\nconcerning the Opportunity. Recipient shall be responsible for any breach of this\nlimitation, documents, software, prototypes, samples, data sets, and plant and\nAgreement by its employees, agents and other representatives, it being understood that\nequipment) and is marked "Confidential," "Proprietary" or in some other manner to\nsuch responsibility shall be in addition to and not by way of limitation of any right or\nindicate its confidential nature; (b) oral information disclosed (directly or indirectly) by\nremedy Discloser may have against such representatives with respect to any such\nDiscloser to Recipient pursuant to this Agreement, provided that such information is\nbreach. Recipient shall not reverse engineer, disassemble, or decompile any prototypes,\ndesignated as confidential at the time of disclosure and reduced to a written summary\nsoftware, samples, or other tangible objects that embody Discloser's Confidential\nby Discloser that is marked in a manner to indicate its confidential nature and delivered\nInformation and that are provided to Recipient under this Agreement.\nto Recipient within thirty (30) days after its oral disclosure; and (c) information\n4.\nMAINTENANCE OF CONFIDENTIALITY\notherwise reasonably expected to be treated in a confidential manner under the\ncircumstances of disclosure under this Agreement or by the nature of the information\nRecipient shall take reasonable measures to protect the secrecy of and\nitself. Confidential Information may include information of a third party that is in the\navoid disclosure and unauthorized use of the Confidential Information of Discloser.\npossession of Discloser and is disclosed to Recipient under this Agreement.\nWithout limiting the foregoing, Recipient shall take at least those measures that it\nemploys to protect its own confidential information of a similar nature and shall ensure\nB.\nExceptions. Confidential Information shall not, however, include any\nthat its employees who have access to Confidential Information of Discloser have\ninformation that (i) was publicly known or made generally available without a duty of\nsigned a nonuse and nondisclosure agreement in content at least as protective of\nconfidentiality prior to the time of disclosure by Discloser to Recipient; (ii) becomes\nDiscloser's Confidential Information as the provisions of this Agreement, prior to any\npublicly known or made generally available without a duty of confidentiality after\ndisclosure of Confidentia Information to such employees. The Recipient shall not\ndisclosure by Discloser to Recipient through no wrongful action or inaction of\nmake any copies of the Confidential Information of Discloser unless the same are\nRecipient (iii) is in the rightful possession of Recipient without confidentiality\npreviously approved in writing by Discloser. The Recipient shall reproduce Discloser's\nobligations at the time of disclosure by Discloser to Recipient as shown by Recipient's\nproprietary rights notices on any such authorized copies in the same manner in which\nthen-contemporaneous written files and records kept in the ordinary course of\nsuch notices were set forth in or on the original. The Recipient shall promptly notify\nbusiness; (iv) is obtained by Recipient from a third party without an accompanying\nDiscloser of any unauthorized use or disclosure, or suspected unauthorized use or\nduty of confidentiality without a breach of such third party's obligations of\ndisclosure, of Discloser's Confidential Information of which Recipient becomes aware.\nconfidentiality; or (v) is independently developed by Recipient without use of or\nreference to Discloser's Confidential Information, as shown by written records and\n5.\nNo OBLIGATION\nother competent evidence prepared contemporaneously with such independent\ndevelopment.\nNothing in this Agreement shall obligate either Party to (a) disclose any\nConfidential Information, which shall be disclosed, if at all, solely at the Discloser's\nC. Compelled Disclosure. If Recipient becomes legally compelled to disclose any\noption, or (b) proceed with any transaction between them, and each Party reserves the\nConfidential Information, other than pursuant to a confidentiality agreement, Recipient\nright, in its sole discretion, to terminate the discussions contemplated by this\nwill provide Discloser prompt written notice, if legally permissible, and will use its\nAgreement concerning the Opportunity. Nothing in this Agreement shall be construed\nbest efforts to assist Discloser in seeking a protective order or another appropriate\nto restrict either Party's use or disclosure of its own Confidential Information.\nremedy. If Discloser waives Recipient's compliance with this Agreement or fails to\nobtain a protective order or other appropriate remedy, Recipient will furnish only that\nportion of the Confidential\nPage 1\n6.\nNo WARRANTY\n(a) acquire, offer or propose to acquire, or agree or seek to acquire,\nALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS."\ndirectly or indirectly, by purchase or otherwise, greater than an aggregate of an\nadditional 5% of the outstanding number of shares of any class of voting securities (as\nNEITHER PARTY MAKES ANY WARRANTIES, EXPRESS, IMPLIED OR\ndefined below) of GigPeak or any subsidiary thereof, or of any successor to or person\nOTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR\nin control of GigPeak (other than as a result of a Significant Event) or direct or indirect\nPERFORMANCE OF ANY CONFIDENTIAL INFORMATION, OR WITH\nRESPECT TO NON-INFRINGEMENT OR OTHER VIOLATION OF ANY\nrights or options to acquire any such securities, or any material portion of the assets of\nINTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY OR OF RECIPIENT.\nGigPeak or any subsidiary or division thereof, or of any such successor or controlling\nperson (other than as a result of a Significant Event);\n7.\nRETURN OF MATERIALS\n(b) make any public announcement with respect to, or enter into or agree\nAll documents and other tangible objects containing or representing\nto enter into, offer, propose or seek to enter into, or otherwise be involved in or part of,\nConfidential Information that have been disclosed by Discloser to Recipient, and all\ndirectly\nor\nindirectly,\nany\nacquisition\ntransaction\nor\nother\nbusiness\ncombination\ncopies or extracts thereof or notes derived therefrom that are in the possession of\ninvolving all or part of GigPeak or its subsidiaries or any acquisition transaction for all\nRecipient, shall be and remain the property of Discloser and shall be promptly returned\nor a material portion of the assets of GigPeak or any subsidiary or any of their\nto Discloser or destroyed (with proof of such destruction), at Discloser's choice, either\nrespective businesses;\nupon the Parties' termination of discussions regarding the Opportunity or upon\n(c) make, or in any way participate in, directly or indirectly, any\nDiscloser's prior written request. Notwithstanding the foregoing, if compliance with\n"solicitation" of "proxies" (as such terms are used in the rules of the Securities and\nthe foregoing would violate any applicable law, regulation or applicable professional\nExchange Commission) to vote, or seek to advise or influence any person with respect\nstandards of the American Institute of Certified Public Accountants, Public Company\nto the voting of, any voting securities of GigPeak or any subsidiary thereof;\nAccounting Oversight Board or state boards of accountancy, then such information\nmay be retained provided that it is used for no other purpose than to evidence\n(d) form, join or in any way participate in a "group" (within the meaning\nRecipient's or its representatives' compliance with such law, regulation or professional\nof Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) (a "13D\nstandard, and that such Information is maintained in confidence as set forth in this\nGroup") with respect to any voting securities of GigPeak or any of its subsidiaries;\nAgreement.\n(e) directly or indirectly enter into any discussions negotiations,\n8.\nNo LICENSE\narrangements or understandings with any other person with respect to any of the\nforegoing activities or publicly propose any of such activities to any other person; or\nNothing in this Agreement is intended to grant any rights to Recipient\nunder any patent, mask work right, copyright or other intellectual property right of\n(f) disclose any intention, plan or arrangement consistent with any of the\nDiscloser, nor shall this Agreement grant Recipient any rights in or to the Confidential\nforegoing in a manner that would require public disclosure thereof by GigPeak.\nInformation Information solely of Discloser for the other purpose than of determining the limited right whether to review to enter such into a Confidential transaction\nInvestor acknowledges that its activities not expressly prohibited by this Section\nconcerning the Opportunity as expressly set forth in Section 3 of this Agreement.\n10 may be subject to applicable federal and state securities laws.\n9. NON-SOLICITATION\nFor purposes of this Agreement, (i) a "Significant Event" means (A) the acquisition\nby any person or 13D Group of beneficial ownership of voting securities of GigPeak\nEach party hereby agrees that for a period of two (2) years from file date\nrepresenting 15% or more of the then outstanding voting securities of GigPeak; (B) the\nof this Agreement, without the prior written consent of the other party in the event a\nannouncement or commencement by any person or 13D Group of a tender or exchange\ntransaction related to the Opportunity is not consummated, it will not (a) solicit to hire\noffer to acquire voting securities of GigPeak which, if successful, would result in such\n(or other cause party or or seek any to other cause employee to leave the of other employ party of the or any other subsidiary party' any with executive whom of it has the\nperson\nor\n13D\nGroup\nowning,\nwhen\ncombined\nwith\nany\nother\nvoting\nsecurities\nof\nGigPeak owned by such person or 13D Group, 15% or more of the then outstanding\nhad contact or who (or whose performance) became known to it in connection with the\nvoting securities of GigPeak; (C) file entry into by GigPeak, or determination by\nprocess contemplated by this Agreement (provided, however, that a party is not\nGigPeak to seek to enter into, of any merger, sale or other business combination\nrestricted from hiring any such individual who is hired as a result of such individual\ntransaction pursuant to which the outstanding shares of common stock of GigPeak\nresponding to a general advertisement for employment) or (b) hold any discussions\nwould be converted into cash or securities of another person or 13D Group or 50% or\nregarding the other party or any of its subsidiaries with any suppliers, customers and/or\nmore of the then outstanding shares of common stock of GigPeak would be owned by\nother material business relationships of the other party or any of its subsidiaries, except\npersons other than the then current holders of shares of common stock of GigPeak, or\nfor those contacts or discussions held in the ordinary course of business.\nwhich would result in all or a substantial portion of GigPeak's assets being sold to any\nperson or 13D Group; (D) GigPeak or any of its subsidiaries makes an assignment for\n10. STANDSTILL AGREEMENT\nthe benefit of creditors or commences any proceeding under any bankruptcy,\nreorganization, insolvency, dissolution or liquidation law of any jurisdiction; or (E) any\nInvestor hereby agrees that, for a period ending on the earlier of one\nsuch petition is filed or any such proceeding is commenced against GigPeak or any of\n(1) years from the date of this Agreement or the occurrence of a Significant Event (as\nits subsidiaries and either (1) GigPeak or such subsidiary by any act indicates its\ndefined below), neither the Investor nor any of its affiliates or representatives to whom\napproval thereof, consent thereto or acquiescence therein or (2) such petition,\nit has provided Confidential Information will, unless first invited (on an unsolicited\napplication or proceeding is not dismissed within 30 days; (ii) "person" means any\nbasis in the case of proposed activities involving persons other than GigPeak or its\ncorporation, company, group, partnership or other entity or individual (including the\nsubsidiaries) by GigPeak's Board of Directors, or a special committee thereof, in\nmedia); and (iii) "voting securities" means at any time shares of any class of capital\nwriting, directly or indirectly:\nstock of GigPeak which are then entitled to vote\nPage 2\ngenerally in the election of directors and any securities convertible or exchangeable\n15. MISCELLANEOUS\ninto or exercisable for any such shares; provided, that for purposes of this definition\nany securities of GigPeak which at such time are convertible or exchangeable into or\nThis Agreement shall bind and inure to the benefit of the Parties and their\nexercisable for such shares of GigPeak shall be deemed to have been so converted,\nrespective successors and permitted assigns. Neither Party may assign or otherwise\nexchanged or exercised.\ntransfer this Agreement without the prior written consent of the other Party, except that\neither Party may assign this Agreement without consent in connection with a merger,\n11. EXPORT RESTRICTIONS\nreorganization, consolidation, or sale of all or substantially all of the assets to which\nthis Agreement pertains, provided that the assigning Party provides prompt written\nAny software and other technical information disclosed under this\nnotice to the other Party prior to any such permitted assignment. Any assignment or\nAgreement may be subject to restrictions and controls imposed by the Export\ntransfer of this Agreement in violation of the foregoing shall be null and void. This\nAdministration Act, Export Administration Regulations and other laws and regulations\nAgreement will be interpreted and construed in accordance with the laws of the State\nof the United States and any other applicable government or jurisdiction, as enacted\nof California, without regard to conflict of law principles. Each Party hereby represents\nfrom time to time (the "Acts"). The Parties shall comply with all restrictions and\nand warrants that the persons executing this Agreement on its behalf have express\ncontrols imposed by the Acts.\nauthority to do so, and, in so doing, to bind such Party thereto. This Agreement\n12. No GUARANTY\ncontains the entire agreement between the Parties with respect to the Opportunity and\nsupersedes all prior written and oral agreements between the Parties regarding the\nRecipient acknowledges and agrees that Discloser is not making any\nOpportunity. Recipient shall not have any obligation, express or implied by law, with\nrepresentation or warranty, express or implied, as to the accuracy or completeness of\nrespect to trade secret or proprietary information of Discloser disclosed under this\nthe Confidential Information, and Disclosure will not have any liability to Recipient or\nAgreement except as set forth herein. If a court or other body of competent jurisdiction\nany other person resulting from Recipient's use of the Confidential Information. Only\nfinds, or the Parties mutually believe, any provision of this Agreement, or portion\nthose representations or warranties that are made to Recipient in a definitive agreement\nthereof, to be invalid or unenforceable, such provision will be enforced to the\nwhen, as, and if executed, and subject to such limitations and restrictions as may be\nmaximum extent permissible so as to effect the intent of the Parties, and the remainder\nspecified in such definitive agreement, will have any legal effect.\nof this Agreement will continue in full force and effect. No provision of this\nAgreement may be waived except by a writing executed by the Party against whom the\n13. TERM\nwaiver is to be effective. A Party's failure to enforce any provision of this Agreement\nshall neither be construed as a waiver of the provision nor prevent the Party from\nThe obligations of Recipient under this Agreement shall survive until such\nenforcing any other provision of this Agreement. No provision of this Agreement may\ntime as all Confidential Information of Discloser hereunder qualifies as any of the\nbe amended or otherwise modified except by a writing signed by the Parties to this\nexceptions to Confidential Information set forth in Section 2.B through no wrongful\nAgreement. The Parties may execute this Agreement in counterparts, each of which is\naction or inaction of Recipient.\ndeemed an original, but all of which together constitute one and the same agreement.\nThis Agreement may be delivered by facsimile transmission, and facsimile copies of\n14. REMEDIES\nexecuted signature pages shall be binding as originals.\nRecipient agrees that any violation or threatened violation of this\nAgreement may cause irreparable injury to Discloser, entitling Discloser to seek\n16. DISPUTES\ninjunctive relief in addition to all legal remedies. In the event of litigation relating to\nAll disputes arising out of this Agreement will be subject to the exclusive\nthis Agreement, if a court of competent jurisdiction determines in a final,\njurisdiction and venue of the state courts located in Santa Clara County, California and\nnonappealable order that this Agreement has been breached by the Investor or its\nthe federal courts located in the Northern District of California and each Party hereby\nrepresentatives, then the Investor will reimburse GigPeak for its costs and expenses\nconsents to the personal jurisdiction thereof.\n(including legal fees and expenses) incurred in connection with all such litigation.\nIN WITNESS WHEREOF, the Parties by their duly authorized representatives have executed this Agreement as of the Effective Date.\nGIGPEAK, INC.\nINTEGRATED DEVICE TECHNOLOGY, INC.\nBy:\n/s/ Avi Katz\nBy:\n/s/ Sailesh Chittipeddi\nName:\nAvi Katz\nName: Sailesh Chittipeddi\nTitle:\nCEO\nTitle:\nVP Global Operations & CTO\nPage 3	EX-99.(D)(2)(II) 11 d344651dex99d2ii.htm EX-(D)(2)(II)\nExhibit (d)(2)(ii)\nGIGPEAK, INC.\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this “Agreement”), effective 1/16, 2017 (“Effective Date”), is entered into by\nand between GigPeak, Inc., a Delaware corporation having offices at 130 Baytech Drive, San Jose, CA 95134 (“GigPeak”), and\nIntegrated Device Technology, Inc., a Delaware corporation having offices at 6024 Silver Creek Valley Road, San Jose, CA 95138\n(“Investor”) (each herein referred to individually as a “Party,” or collectively as the “Parties”). In consideration of the covenants\nand conditions contained herein, the Parties hereby agree to the following:\nPage 1\n1. PURPOSE\nThe Parties wish to explore a business strategic opportunity of mutual\ninterest (the “Opportunity”), and in connection with the Opportunity, each Party has\ndisclosed, and may further disclose certain confidential technical and business\ninformation (in such capacity a Party disclosing the information, the “Discloser”) to\nthe other Party (in such capacity a Party receiving the information, the “Recipient”),\nthat Discloser desires Recipient to treat as confidential.\n2. CONFIDENTIAL INFORMATION\nA. Definition.\n“ Confidential Information” means (a) any information disclosed\n(directly or indirectly) by Discloser to Recipient pursuant to this Agreement that is in\nwritten, graphic, machine readable or other tangible form objects (including, without\nlimitation, documents, software, prototypes, samples, data sets, and plant and\nequipment) and is marked “Confidential,” “Proprietary” or in some other manner to\nindicate its confidential nature; (b) oral information disclosed (directly or indirectly) by\nDiscloser to Recipient pursuant to this Agreement, provided that such information is\ndesignated as confidential at the time of disclosure and reduced to a written summary\nby Discloser that is marked in a manner to indicate its confidential nature and delivered\nto Recipient within thirty (30) days after its oral disclosure; and (c) information\notherwise reasonably expected to be treated in a confidential manner under the\ncircumstances of disclosure under this Agreement or by the nature of the information\nitself. Confidential Information may include information of a third party that is in the\npossession of Discloser and is disclosed to Recipient under this Agreement.\nB.\nExceptions.\nConfidential Information shall not, however, include any\ninformation that (i) was publicly known or made generally available without a duty of\nconfidentiality prior to the time of disclosure by Discloser to Recipient; (ii) becomes\npublicly known or made generally available without a duty of confidentiality after\ndisclosure by Discloser to Recipient through no wrongful action or inaction of\nRecipient; (iii) is in the rightful possession of Recipient without confidentiality\nobligations at the time of disclosure by Discloser to Recipient as shown by Recipient’s\nthen-contemporaneous written files and records kept in the ordinary course of\nbusiness; (iv) is obtained by Recipient from a third party without an accompanying\nduty of confidentiality without a breach of such third party’s obligations of\nconfidentiality; or (v) is independently developed by Recipient without use of or\nreference to Discloser’s Confidential Information, as shown by written records and\nother competent evidence prepared contemporaneously with such independent\ndevelopment.\nC. Compelled Disclosure. If Recipient becomes legally compelled to disclose any\nConfidential Information, other than pursuant to a confidentiality agreement, Recipient\nwill provide Discloser prompt written notice, if legally permissible, and will use its\nbest efforts to assist Discloser in seeking a protective order or another appropriate\nremedy. If Discloser waives Recipient’s compliance with this Agreement or fails to\nobtain a protective order or other appropriate remedy, Recipient will furnish only that\nportion of the Confidential\nInformation that is legally required to be disclosed, provided that any Confidential\nInformation so disclosed shall maintain its confidentiality protection for all purposes\nother than such legally compelled disclosure.\n3. NONUSE AND NONDISCLOSURE\nRecipient shall not use any Confidential Information of Discloser for any\npurpose except to evaluate and engage in discussions concerning the Opportunity.\nRecipient shall not disclose any Confidential Information of Discloser to third parties\nor to Recipient’s employees, except that, subject to Section 4 below, Recipient may\ndisclose Discloser ’s Confidential Information to those employees of Recipient who are\nrequired to have the information in order to evaluate or engage in discussions\nconcerning the Opportunity. Recipient shall be responsible for any breach of this\nAgreement by its employees, agents and other representatives, it being understood that\nsuch responsibility shall be in addition to and not by way of limitation of any right or\nremedy Discloser may have against such representatives with respect to any such\nbreach. Recipient shall not reverse engineer, disassemble, or decompile any prototypes,\nsoftware, samples, or other tangible objects that embody Discloser’s Confidential\nInformation and that are provided to Recipient under this Agreement.\n4. MAINTENANCE OF CONFIDENTIALITY\nRecipient shall take reasonable measures to protect the secrecy of and\navoid disclosure and unauthorized use of the Confidential Information of Discloser.\nWithout limiting the foregoing, Recipient shall take at least those measures that it\nemploys to protect its own confidential information of a similar nature and shall ensure\nthat its employees who have access to Confidential Information of Discloser have\nsigned a nonuse and nondisclosure agreement in content at least as protective of\nDiscloser’s Confidential Information as the provisions of this Agreement, prior to any\ndisclosure of Confidential Information to such employees. The Recipient shall not\nmake any copies of the Confidential Information of Discloser unless the same are\npreviously approved in writing by Discloser. The Recipient shall reproduce Discloser ’s\nproprietary rights notices on any such authorized copies in the same manner in which\nsuch notices were set forth in or on the original. The Recipient shall promptly notify\nDiscloser of any unauthorized use or disclosure, or suspected unauthorized use or\ndisclosure, of Discloser’s Confidential Information of which Recipient becomes aware.\n5. NO OBLIGATION\nNothing in this Agreement shall obligate either Party to (a) disclose any\nConfidential Information, which shall be disclosed, if at all, solely at the Discloser ’s\noption, or (b) proceed with any transaction between them, and each Party reserves the\nright, in its sole discretion, to terminate the discussions contemplated by this\nAgreement concerning the Opportunity. Nothing in this Agreement shall be construed\nto restrict either Party’s use or disclosure of its own Confidential Information.\nPage 2\n6. NO WARRANTY\nALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS .”\nNEITHER PARTY MAKES ANY WARRANTIES, EXPRESS , IMPLIED OR\nOTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR\nPERFORMANCE OF ANY CONFIDENTIAL INFORMATION, OR WITH\nRESPECT TO NON-INFRINGEMENT OR OTHER VIOLATION OF ANY\nINTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY OR OF RECIPIENT.\n7. RETURN OF MATERIALS\nAll documents and other tangible objects containing or representing\nConfidential Information that have been disclosed by Discloser to Recipient, and all\ncopies or extracts thereof or notes derived therefrom that are in the possession of\nRecipient, shall be and remain the property of Discloser and shall be promptly returned\nto Discloser or destroyed (with proof of such destruction), at Discloser’s choice, either\nupon the Parties’ termination of discussions regarding the Opportunity or upon\nDiscloser ’s prior written request. Notwithstanding the foregoing, if compliance with\nthe foregoing would violate any applicable law, regulation or applicable professional\nstandards of the American Institute of Certified Public Accountants, Public Company\nAccounting Oversight Board or state boards of accountancy, then such information\nmay be retained provided that it is used for no other purpose than to evidence\nRecipient’s or its representatives’ compliance with such law, regulation or professional\nstandard, and that such Information is maintained in confidence as set forth in this\nAgreement.\n8. NO LICENSE\nNothing in this Agreement is intended to grant any rights to Recipient\nunder any patent, mask work right, copyright or other intellectual property right of\nDiscloser, nor shall this Agreement grant Recipient any rights in or to the Confidential\nInformation of Discloser other than the limited right to review such Confidential\nInformation solely for the purpose of determining whether to enter into a transaction\nconcerning the Opportunity as expressly set forth in Section 3 of this Agreement.\n9. NON-SOLICITATION\nEach party hereby agrees that for a period of two (2) years from file date\nof this Agreement, without the prior written consent of the other party in the event a\ntransaction related to the Opportunity is not consummated, it will not (a) solicit to hire\n(or cause or seek to cause to leave the employ of the other party’ any executive of the\nother party or any other employee of other party or any subsidiary with whom it has\nhad contact or who (or whose performance) became known to it in connection with the\nprocess contemplated by this Agreement (provided, however, that a party is not\nrestricted from hiring any such individual who is hired as a result of such individual\nresponding to a general advertisement for employment) or (b) hold any discussions\nregarding the other party or any of its subsidiaries with any suppliers, customers and/or\nother material business relationships of the other party or any of its subsidiaries, except\nfor those contacts or discussions held in the ordinary course of business.\n10. STANDSTILL AGREEMENT\nInvestor hereby agrees that, for a period ending on the earlier of one\n(1) years from the date of this Agreement or the occurrence of a Significant Event (as\ndefined below), neither the Investor nor any of its affiliates or representatives to whom\nit has provided Confidential Information will, unless first invited (on an unsolicited\nbasis in the case of proposed activities involving persons other than GigPeak or its\nsubsidiaries) by GigPeak’s Board of Directors, or a special committee thereof, in\nwriting, directly or indirectly:\n(a)\nacquire, offer or propose to acquire, or agree or seek to acquire,\ndirectly or indirectly, by purchase or otherwise, greater than an aggregate of an\nadditional 5% of the outstanding number of shares of any class of voting securities (as\ndefined below) of GigPeak or any subsidiary thereof, or of any successor to or person\nin control of GigPeak (other than as a result of a Significant Event) or direct or indirect\nrights or options to acquire any such securities, or any material portion of the assets of\nGigPeak or any subsidiary or division thereof, or of any such successor or controlling\nperson (other than as a result of a Significant Event);\n(b) make any public announcement with respect to, or enter into or agree\nto enter into, offer, propose or seek to enter into, or otherwise be involved in or part of,\ndirectly or indirectly, any acquisition transaction or other business combination\ninvolving all or part of GigPeak or its subsidiaries or any acquisition transaction for all\nor a material portion of the assets of GigPeak or any subsidiary or any of their\nrespective businesses;\n(c)\nmake, or in any way participate in, directly or indirectly, any\n“ s olicitation” of “proxies” (as such terms are used in the rules of the Securities and\nExchange Commission) to vote, or seek to advise or influence any person with respect\nto the voting of, any voting securities of GigPeak or any subsidiary thereof;\n(d) form, join or in any way participate in a “group” (within the meaning\nof Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) (a “13D\nGroup”) with respect to any voting securities of GigPeak or any of its subsidiaries;\n(e)\ndirectly or indirectly enter into any discussions, negotiations,\narrangements or understandings with any other person with respect to any of the\nforegoing activities or publicly propose any of such activities to any other person; or\n(f) disclose any intention, plan or arrangement consistent with any of the\nforegoing in a manner that would require public disclosure thereof by GigPeak.\nInvestor acknowledges that its activities not expressly prohibited by this Section\n10 may be subject to applicable federal and state securities laws.\nFor purposes of this Agreement, (i) a “Significant Event” means (A) the acquisition\nby any person or 13D Group of beneficial ownership of voting securities of GigPeak\nrepresenting 15% or more of the then outstanding voting securities of GigPeak; (B) the\nannouncement or commencement by any person or 13D Group of a tender or exchange\noffer to acquire voting securities of GigPeak which, if successful, would result in such\nperson or 13D Group owning, when combined with any other voting securities of\nGigPeak owned by such person or 13D Group, 15% or more of the then outstanding\nvoting securities of GigPeak; (C) file entry into by GigPeak, or determination by\nGigPeak to seek to enter into, of any merger, sale or other business combination\ntransaction pursuant to which the outstanding shares of common stock of GigPeak\nwould be converted into cash or securities of another person or 13D Group or 50% or\nmore of the then outstanding shares of common stock of GigPeak would be owned by\npersons other than the then current holders of shares of common stock of GigPeak, or\nwhich would result in all or a substantial portion of GigPeak’s assets being sold to any\nperson or 13D Group; (D) GigPeak or any of its subsidiaries makes an assignment for\nthe benefit of creditors or commences any proceeding under any bankruptcy,\nreorganization, insolvency, dissolution or liquidation law of any jurisdiction; or (E) any\nsuch petition is filed or any such proceeding is commenced against GigPeak or any of\nits subsidiaries and either (1) GigPeak or such subsidiary by any act indicates its\napproval thereof, consent thereto or acquiescence therein or (2) such petition,\napplication or proceeding is not dismissed within 30 days; (ii) “person” means any\ncorporation, company, group, partnership or other entity or individual (including the\nmedia); and (iii) “voting securities” means at any time shares of any class of capital\nstock of GigPeak which are then entitled to vote\nIN WITNESS WHEREOF, the Parties by their duly authorized representatives have executed this Agreement as of the Effective Date.\nPage 3\ngenerally in the election of directors and any securities convertible or exchangeable\ninto or exercisable for any such shares; provided, that for purposes of this definition\nany securities of GigPeak which at such time are convertible or exchangeable into or\nexercisable for such shares of GigPeak shall be deemed to have been so converted,\nexchanged or exercised.\n11. EXPORT RESTRICTIONS\nAny software and other technical information disclosed under this\nAgreement may be subject to restrictions and controls imposed by the Export\nAdministration Act, Export Administration Regulations and other laws and regulations\nof the United States and any other applicable government or jurisdiction, as enacted\nfrom time to time (the “Acts”). The Parties shall comply with all restrictions and\ncontrols imposed by the Acts.\n12. NO GUARANTY\nRecipient acknowledges and agrees that Discloser is not making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of\nthe Confidential Information, and Disclosure will not have any liability to Recipient or\nany other person resulting from Recipient’s use of the Confidential Information. Only\nthose representations or warranties that are made to Recipient in a definitive agreement\nwhen, as , and if executed, and subject to such limitations and restrictions as may be\nspecified in such definitive agreement, will have any legal effect.\n13. TERM\nThe obligations of Recipient under this Agreement shall survive until such\ntime as all Confidential Information of Discloser hereunder qualifies as any of the\nexceptions to Confidential Information set forth in Section 2.B through no wrongful\naction or inaction of Recipient.\n14. REMEDIES\nRecipient agrees that any violation or threatened violation of this\nAgreement may cause irreparable injury to Discloser, entitling Discloser to seek\ninjunctive relief in addition to all legal remedies. In the event of litigation relating to\nthis Agreement, if a court of competent jurisdiction determines in a final,\nnonappealable order that this Agreement has been breached by the Investor or its\nrepresentatives, then the Investor will reimburse GigPeak for its costs and expenses\n(including legal fees and expenses) incurred in connection with all such litigation.\n15. MISCELLANEOUS\nThis Agreement shall bind and inure to the benefit of the Parties and their\nrespective successors and permitted assigns. Neither Party may assign or otherwise\ntransfer this Agreement without the prior written consent of the other Party, except that\neither Party may assign this Agreement without consent in connection with a merger,\nreorganization, consolidation, or sale of all or substantially all of the assets to which\nthis Agreement pertains, provided that the assigning Party provides prompt written\nnotice to the other Party prior to any such permitted assignment. Any assignment or\ntransfer of this Agreement in violation of the foregoing shall be null and void. This\nAgreement will be interpreted and construed in accordance with the laws of the State\nof California, without regard to conflict of law principles. Each Party hereby represents\nand warrants that the persons executing this Agreement on its behalf have express\nauthority to do so, and, in so doing, to bind such Party thereto. This Agreement\ncontains the entire agreement between the Parties with respect to the Opportunity and\nsupersedes all prior written and oral agreements between the Parties regarding the\nOpportunity. Recipient shall not have any obligation, express or implied by law, with\nrespect to trade secret or proprietary information of Discloser disclosed under this\nAgreement except as set forth herein. If a court or other body of competent jurisdiction\nfinds, or the Parties mutually believe, any provision of this Agreement, or portion\nthereof, to be invalid or unenforceable, such provision will be enforced to the\nmaximum extent permissible so as to effect the intent of the Parties, and the remainder\nof this Agreement will continue in full force and effect. No provision of this\nAgreement may be waived except by a writing executed by the Party against whom the\nwaiver is to be effective. A Party’s failure to enforce any provision of this Agreement\nshall neither be construed as a waiver of the provision nor prevent the Party from\nenforcing any other provision of this Agreement. No provision of this Agreement may\nbe amended or otherwise modified except by a writing signed by the Parties to this\nAgreement. The Parties may execute this Agreement in counterparts, each of which is\ndeemed an original, but all of which together constitute one and the same agreement.\nThis Agreement may be delivered by facsimile transmission, and facsimile copies of\nexecuted signature pages shall be binding as originals.\n16. DISPUTES\nAll disputes arising out of this Agreement will be subject to the exclusive\njurisdiction and venue of the state courts located in Santa Clara County, California and\nthe federal courts located in the Northern District of California and each Party hereby\nconsents to the personal jurisdiction thereof.\nGIGPEAK, INC.\nBy:\n/s/ Avi Katz\nName: Avi Katz\nTitle: CEO\nINTEGRATED DEVICE TECHNOLOGY, INC.\nBy:\n/s/ Sailesh Chittipeddi\nName: Sailesh Chittipeddi\nTitle: VP Global Operations & CTO
c679c8394acaa72a263e8ff71b434c04.pdf	effective_date jurisdiction party term	EX-99.(D)(6) 10 dex99d6.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nLOGO\nThird Wave Technologies\n502 South Rosa Road\nMadison, WI 53719\nFax: 608.663.7037\nWeb: www.twt.com\nMarch 28, 2008\nSTRICTLY CONFIDENTIAL\nHologic, Inc.\n35 Crosby Drive\nBedford, MA 01730\nU.S .A.\nAttention: Rohan Hastie, Senior Director, Business Development\nLadies and Gentlemen:\nIn connection with the consideration of a possible business transaction (the “Transaction”) between Hologic, Inc. (“Company”) and Third\nWave Technologies, Inc. (“TWT”), TWT has and will provide Company from time to time with certain non-public information regarding TWT’s\noperations, assets, liabilities, business prospects, financial projections and financial condition, as well as information pertaining to other matters that\nmay arise in connection with Company’s evaluation of the Transaction. As a condition to, and in consideration of, such information being provided\nor made available to Company and its Representatives (as defined below), Company agrees to treat such information (whether prepared by TWT, its\nRepresentatives or otherwise and regardless of the form of communication) which is provided or made available hereunder to Company or to its\nRepresentatives by or on behalf of TWT or its Representatives in accordance with the provisions of this letter agreement, and to take or abstain from\ntaking certain other actions set forth herein. Each of TWT and Company is sometimes referred to herein individually as a “party” and collectively as\nthe “parties.”\nAs used herein, the term “Evaluation Material” shall mean any information (whether prepared by TWT or any of its Representatives or\notherwise and whether oral, written or otherwise) which is furnished after execution of this letter agreement to Company or any of its\nRepresentatives by or on behalf of TWT or any of its Representatives for the purpose of Company’s evaluation of the Transaction, including any\nreport, analysis, compilation, study, interpretation, forecast, record, reproduction, summary, note or other material prepared by Company or any of its\nRepresentatives, in whatever form maintained (whether documentary, computer storage or otherwise) to the extent containing, in whole or in part,\nany such information.\nNotwithstanding the foregoing, the term “Evaluation Material” does not include information which: (i) is or becomes generally available to the\npublic other than as a result of a disclosure by Company or its Representatives, or anyone to whom Company or its Representatives transmits such\ninformation; (ii) as evidenced by written records, was already in the possession of Company or its Representatives, provided that the source of such\ninformation, insofar as is known to Company or any of its Representatives, was not prohibited from transmitting such information to Company or its\nRepresentatives by a contractual, legal, fiduciary or other obligation to TWT; (iii) as evidenced by written records, was or becomes available to\nCompany or its Representatives on a non-confidential basis from a source, other than TWT or one of its Representatives, provided that the source of\nsuch information, insofar as is known to Company, was not prohibited from transmitting such information to Company or its Representatives by a\ncontractual, legal, fiduciary or other obligation to TWT; or (iv) is independently developed by Company or its Representatives without reliance on\nthe Evaluation Materials.\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\nAs used herein, “Representatives” shall mean a person’s officers, directors, subsidiaries and “Affiliates” or “Associates” (as each term is\ndefined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), employees, agents, advisors (including,\nwithout limitation, attorneys, accountants, consultants, prospective lenders and underwriters and financial advisors).\nThe term “person” as used herein shall be broadly interpreted to include, without limitation, the media and any corporation, limited liability\ncompany, company, unincorporated association, group, partnership, individual or other entity, but shall not include the United States Securities\nExchange Commission or other federal or state regulatory agencies. Each term “TWT” and “Company” includes, without limitation, its subsidiaries\nand Affiliates.\nIn consideration of being furnished with the Evaluation Material:\n1. Company hereby agrees that Company has not received from TWT by virtue of this letter agreement any rights or claims with respect to the\nEvaluation Material except as specified herein and that, subject to paragraph 3, Company and its Representatives will keep the Evaluation Material\nconfidential and will not, without the prior written consent of TWT, disclose the Evaluation Material, in whole or in part, or use it, directly or\nindirectly, for any purpose other than for the sole purpose of evaluating a possible Transaction. Moreover, Company agrees to disclose that it is\nevaluating a Transaction and to transmit Evaluation Material only to those Representatives of Company who are assisting Company with evaluating\nsuch Transaction and are informed by Company of the confidential nature of the Evaluation Material and agree with Company to be bound by the\nterms of this letter agreement to the extent stated to be applicable to it prior to the delivery of any Evaluation Material. Company will be responsible\nfor any actions by its Representatives which would be a breach of this letter agreement.\n2.(a) Company agrees that subject to paragraph 3, without the prior written consent of TWT, neither Company nor its Representatives will\ndisclose to any person (other than Company’s Representatives) any information regarding a possible Transaction or the Evaluation Material,\nincluding, without limitation (i) the fact that discussions or negotiations are taking place concerning a possible Transaction, including the status\nthereof, or the termination of discussions or negotiations with TWT, (ii) any of the terms, conditions or other facts with respect to any such possible\nTransaction or of TWT’s consideration of a possible Transaction, (iii) that this letter agreement exists or the terms hereof, or that Evaluation Material\nhas been made available to Company or (iv) any opinion or view with respect to the Evaluation Material; provided that Company or its\nRepresentatives may make such disclosures if Company believes on advice of its counsel that such disclosure must be made by Company or its\nRepresentatives to avoid committing a violation of law or of any rule or regulation of any securities association, stock exchange or national securities\nquotation system on which Company’s or its Representatives’ securities are listed or traded. In such event, Company shall use its reasonable best\nefforts to give advance written notice to TWT. Neither Company nor its Representatives shall consult any third party regarding the possibility for\ncollaboration with Company in connection with a possible Transaction without the prior written consent of TWT.\n(b) TWT agrees that, neither TWT nor its Representatives will disclose to any person (other than TWT’s Representatives) (i) the fact that\ndiscussions or negotiations are taking place concerning a possible Transaction with Company, including the status thereof, or the termination of\ndiscussions or negotiations with Company, (ii) any of the terms, conditions or other facts with respect to any such possible Transaction with the\nCompany or of Company’s consideration of a possible Transaction, or (iii) that this letter agreement exists or the terms hereof, or that Evaluation\nMaterial has been made available to Company; provided that TWT or its Representatives may make such disclosures as TWT determines in good\nfaith upon the advice of counsel may be required by law or any rule or regulation of any securities association, stock exchange or national securities\nquotation system on which TWT’s securities are listed or traded. In such event, TWT shall use its reasonable efforts to give advance written notice to\nCompany.\n3. Company agrees that if Company or any of its Representatives are requested or required (by oral questions, interrogatories, requests for\ninformation or documents, subpoena, civil investigative demand, regulatory request or similar process by any government or governmental agencies\nor authority or by law or regulation) to\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\ndisclose any Evaluation Material, or any of the facts or information referred to in paragraph 2, or any information relating to a possible Transaction,\nCompany will notify TWT timely in writing of the existence, terms and circumstances surrounding such request or requirement (to the extent\npermitted by law) so that TWT, in its sole discretion, may seek a protective order or other appropriate remedy and/or waive compliance with the\nprovisions of this letter agreement; provided that if, in the opinion of Company’s outside counsel, the disclosure to TWT of the factual circumstances\nsurrounding such request or requirement would require disclosure to TWT of confidential information of Company and that such disclosure would\nbe adverse to Company, then TWT will, at its option, either (i) enter into a reasonable confidentiality agreement with respect to such confidential\ninformation or (ii) agree that communication will be made by Company to TWT’s outside counsel on a confidential basis. If, in the absence of a\nprotective order or other remedy or the receipt of a waiver by TWT or any of its Representatives, Company or its Representatives are nonetheless\ncompelled to disclose Evaluation Material to any tribunal, then Company or its Representative may, without liability hereunder, disclose to such\ntribunal only that portion of the Evaluation Material which such counsel advises Company or its Representative is required to be disclosed, provided\nthat such party exercises its reasonable best efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by\ncooperating reasonably with TWT to obtain an appropriate protective order or other assurance that such tribunal will accord the Evaluation Material\nconfidential treatment.\n4. Company understands that, except and to the extent called for in a definitive agreement executed by Company and TWT, neither TWT nor\nany of its Representatives makes any representation or warranty hereunder, express or implied, as to the accuracy or completeness of the Evaluation\nMaterial. Company agrees that neither TWT nor its Representatives shall have any liability to Company or any of its Representatives hereunder\nrelating to or resulting from the use of the Evaluation Material, or any errors therein or omissions therefrom or Company’s or its Representative’s\nconsideration, or participation in a process relating to, a possible Transaction.\n5. Each party agrees that neither party hereto will be under any legal obligation of any kind whatsoever hereunder with respect to a\nTransaction, except for the matters specifically agreed to herein. If either party decides that it does not wish to proceed with a Transaction with the\nother party, then such party will promptly inform the other party of that decision. In that case, or at any time upon the request of TWT for any reason,\nCompany shall promptly redeliver to TWT or certify destruction of all Evaluation Material and any other material (including but not limited to\nwritten and computer files) to the extent containing any Evaluation Material (whether prepared by TWT, its Representatives or otherwise) furnished\nto Company or any of its Representatives and will not retain any copies, extracts or other reproductions in whole or in part of such material,\nprovided, Company and its Representatives shall be permitted to retain all or any portion of the Evaluation Material, in each case in accordance with\nthe confidentiality obligations specified in this letter agreement, (i) to the extent required by applicable law or regulatory authority and (ii) one copy\nof any analysis, interpretation or notes prepared by Company based on Evaluation Material may be retained by Company’s legal department.\nNotwithstanding the return or destruction of the Evaluation Material, Company will continue to be bound by its obligations of confidentiality and\nother obligations hereunder and TWT shall continue to be bound by its obligations hereunder until the termination of this letter agreement pursuant\nto Section 19.\n6. Company agrees that it and its Representatives will direct all inquiries and any requests for information concerning a possible Transaction to\nMerrill Lynch & Co. (“Merrill Lynch”) and XMS Capital Partners (“XMS”). Except as authorized by Merrill Lynch and XMS, Company shall not\ncontact any other members of management or employees of TWT or any customers, suppliers or other third parties (other than Company’s\nRepresentatives) that conduct business with TWT with respect to the Transaction. Notwithstanding anything to the contrary in this letter agreement,\nhowever, the parties and their Representatives also may continue to engage in the same course of communications as they have in the past in the\nordinary course of business.\n7. Company agrees that, for a period of twelve (12) months from the date of this letter agreement, it will not, without the prior written consent\nof TWT, directly or indirectly, solicit for employment or enter into any employment agreement (conditional or otherwise) with or employ any\nemployee of TWT (or anyone who was at any\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\ntime during the twelve (12) month period prior to the date of such solicitation or employment an employee of TWT), except that Company shall not\nbe precluded from hiring an employee who has been terminated by TWT prior to commencement of employment discussions between Company and\nsuch employee, provided such hiring is consistent with such employee’s contractual obligations to TWT. The placing of an advertisement of a\nposition by Company to members of the public generally, such as through newspapers, radio or television, or general mass mailings to the public,\nshall not itself constitute a breach of this paragraph 7.\n8. During the period of twelve (12) months from the date of this letter agreement (the “Standstill Period”), the Company and its\nRepresentatives will not, directly or indirectly, in any manner, without the prior written authorization of the Board of Directors of TWT (i) acquire or\nagree to acquire or make any offer or proposal to acquire any common stock of TWT; (ii) assist, advise, encourage, agree with, discuss or negotiate\nor otherwise act in concert with any other persons to acquire or agree to acquire any material assets of TWT; (iii) solicit, or in any way participate in\nany solicitation of, proxies from holders of the common stock of TWT or form, join or in any way participate in a proxy contest with respect to the\ncommon stock of TWT; (iv) make any proposal for or offer of an extraordinary transaction (including, without limitation, by way of a take-over bid,\ntender or exchange offer, amalgamation, merger or other business combination) involving TWT; (v) engage in any discussions or enter into any\nagreements, commitments or understandings with any person related to or any acquisition of securities or material assets of TWT, (vi) otherwise seek\nto influence or control the Board of Directors, management or policies of TWT or any of its affiliates, (vii) seek any modification to or waiver of the\nCompany’s obligations under this Agreement; (viii) make any public announcement with respect to the foregoing, except as may be required by\napplicable law or regulatory authorities; (ix) take any initiative with respect to TWT that reasonably would be expected to require TWT to make a\npublic announcement; or (x) assist, advise or encourage any person in doing any of the foregoing (including by providing or arranging any\nfinancing).\n9. Each party acknowledges that it and its Affiliates and its and their Representatives may become aware of “material nonpublic\ninformation” (as defined under applicable securities laws) regarding the other party. Both parties understand, and will communicate to all Affiliates\nand Representatives and other persons having knowledge of any material nonpublic information, that it and they are required under applicable\nsecurities laws to refrain from trading in securities of the other party while in possession of this information.\n10. Company agrees that an inadvertent production to it by TWT or any of its Representatives of Evaluation Material protected by the attorney\nclient, attorney work product or other applicable privilege (“Privilege”) of TWT or any of its Representatives, is not intended to constitute a waiver\nof any such Privilege by TWT or any of its Representatives and Company agrees that, upon request, it will immediately return such inadvertently\nproduced Evaluation Material.\n11. This letter agreement is the complete and exclusive statement regarding the subject matter hereof and supersedes all prior and\ncontemporaneous agreements, understandings and communications, oral or written, between the parties regarding such subject matter.\n12. The provisions and covenants set forth in this letter agreement may be amended, modified or waived only by an instrument in writing\nexecuted by TWT and Company, specifying the provision or covenant to be waived or amended. No failure or delay by TWT or Company in\nexercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other\nfurther exercise thereof or the exercise of any other right, power, or privilege hereunder.\n13. Any provision of this letter agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent\nnot held invalid or unenforceable.\n14. Notwithstanding any provision to the contrary contained elsewhere herein, the confidentiality obligations contained in this letter agreement\nor in any other agreement between the parties hereto, as they relate to\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\nany negotiated transaction, shall not apply to the federal tax structure or federal tax treatment of the transaction, and Company (and any of its\nRepresentative) may disclose to any and all persons, without limitation of any kind, the federal tax structure and federal tax treatment of any\ntransaction; provided, that such disclosure may not be made until the earliest of (x) the date of the public announcement of discussions relating to the\ntransaction, (y) the date of the public announcement of the transaction, or (z) the date of the execution of a definitive written agreement to enter into\nthe transaction. The preceding sentence is intended to cause the transaction to be treated as not having been offered under conditions of\nconfidentiality for purposes of Section 1.6011–4(b)(3) (or any successor provision) of the Treasury Regulations promulgated under Section 6011 of\nthe Internal Revenue Code of 1986, as amended, and shall be construed in a manner consistent with such purpose. Subject to the proviso with respect\nto disclosure in the first sentence of this paragraph, TWT acknowledges that it has no proprietary or exclusive rights to the federal tax structure of the\ntransaction or any federal tax matter or federal tax idea related to any negotiated transaction.\n15. Each party agrees that money damages would not be a sufficient remedy for any breach of this letter agreement by it; and that, in addition\nto all other remedies, each party shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach,\nand each party further agrees to waive and to use its best commercially reasonable efforts to cause its Affiliates and their respective Representatives\nto waive any requirement for the securing or posting of any bond in connection with such remedy. In addition, each party agrees that if the other\nparty is the prevailing party in any such litigation, the other party shall be entitled to recover from it all fees, costs and expenses of enforcing any\nright of the other party under or with respect to this letter agreement, including without limitation, such reasonable fees and expenses of attorneys,\nwhich shall include, without limitation, all fees, costs and expenses of appeals.\n16. This letter agreement shall be governed by, and construed (both as to validity and performance) in accordance with, the laws of the State of\nDelaware, without regard to the principles of the conflicts of laws thereof. As the letter agreement is the product of negotiations between the parties,\nneither party shall be deemed the drafter for purposes of construing any ambiguity.\n17. This letter agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken\ntogether shall constitute one and the same agreement, it being understood that all of the parties need not sign the same counterpart. This letter\nagreement may be executed and delivered by facsimile or email transmission of a file in “.pdf” or similar format and upon such delivery, each\nsignature shall be deemed to have the same effect as if the original signature had been delivered to the other party.\n18. Each party’s rights (but not its obligations) under this letter agreement may be assigned by such party to any of its Affiliates or to any party\nthat enters into a transaction substantially similar to the Transaction with such other party. This letter agreement shall inure to the benefit of the\nparties hereto and their respective successors and assigns.\n19. Except as otherwise provided herein, this letter agreement shall terminate twenty-four (24) months after the later of (a) the date of this\nletter agreement or (b) the date upon which Company completes returning the materials required to be returned to TWT pursuant to paragraph 5\nabove, if applicable.\n[SIGNATURE PAGE FOLLOWS]\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between TWT and Company.\nVery truly yours,\nTHIRD WAVE TECHNOLOGIES, INC.\nBy: /s/ Kevin T. Conroy\nName: Kevin T. Conroy\nTitle: Chief Executive Officer\nAccepted and agreed to as of\nthe date first written above:\nHOLOGIC, INC.\nBy:\nName: Mark J. Casey\nTitle: SVP & General Counsel\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between TWT and Company.\nVery truly yours,\nTHIRD WAVE TECHNOLOGIES, INC.\nBy:\nName: Kevin T. Conroy\nTitle: Chief Executive Officer\nAccepted and agreed to as of\nthe date first written above:\nHOLOGIC, INC.\nBy: Mark J. Casey\nName: Mark J. Casey\nTitle: SVP & General Counsel\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM	EX-99.(D)(6) 10 dex99d6.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nThird Wave Technologies\n502 South Rosa Road\nMadison, WI 53719\nFax: 608.663.7037\nWeb: www.twt.com\n. LOGO March 28, 2008\nSTRICTLY CONFIDENTIAL\nHologic, Inc.\n35 Crosby Drive\nBedford, MA 01730\nU.S.A.\nAttention: Rohan Hastie, Senior Director, Business Development\nLadies and Gentlemen:\nIn connection with the consideration of a possible business transaction (the “Transaction”) between Hologic, Inc. (“Company”) and Third\nWave Technologies, Inc. (“T'WT?”), TWT has and will provide Company from time to time with certain non-public information regarding TWT’s\noperations, assets, liabilities, business prospects, financial projections and financial condition, as well as information pertaining to other matters that\nmay arise in connection with Company’s evaluation of the Transaction. As a condition to, and in consideration of, such information being provided\nor made available to Company and its Representatives (as defined below), Company agrees to treat such information (whether prepared by TWT, its\nRepresentatives or otherwise and regardless of the form of communication) which is provided or made available hereunder to Company or to its\nRepresentatives by or on behalf of TWT or its Representatives in accordance with the provisions of this letter agreement, and to take or abstain from\ntaking certain other actions set forth herein. Each of TWT and Company is sometimes referred to herein individually as a “party” and collectively as\nthe “parties.”\nAs used herein, the term “Evaluation Material” shall mean any information (whether prepared by TWT or any of its Representatives or\notherwise and whether oral, written or otherwise) which is furnished after execution of this letter agreement to Company or any of its\nRepresentatives by or on behalf of TWT or any of its Representatives for the purpose of Company’s evaluation of the Transaction, including any\nreport, analysis, compilation, study, interpretation, forecast, record, reproduction, summary, note or other material prepared by Company or any of its\nRepresentatives, in whatever form maintained (whether documentary, computer storage or otherwise) to the extent containing, in whole or in part,\nany such information.\nNotwithstanding the foregoing, the term “Evaluation Material” does not include information which: (i) is or becomes generally available to the\npublic other than as a result of a disclosure by Company or its Representatives, or anyone to whom Company or its Representatives transmits such\ninformation; (ii) as evidenced by written records, was already in the possession of Company or its Representatives, provided that the source of such\ninformation, insofar as is known to Company or any of its Representatives, was not prohibited from transmitting such information to Company or its\nRepresentatives by a contractual, legal, fiduciary or other obligation to TWT; (iii) as evidenced by written records, was or becomes available to\nCompany or its Representatives on a non-confidential basis from a source, other than TWT or one of its Representatives, provided that the source of\nsuch information, insofar as is known to Company, was not prohibited from transmitting such information to Company or its Representatives by a\ncontractual, legal, fiduciary or other obligation to TWT; or (iv) is independently developed by Company or its Representatives without reliance on\nthe Evaluation Materials.\n502 SOUTH ROSA RD, MADISON, WI 53719-1256 Fax: 608.663.7037 WEB: WWW.TWT.COM\nAs used herein, “Representatives” shall mean a person’s officers, directors, subsidiaries and “Affiliates” or “Associates” (as each term is\ndefined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), employees, agents, advisors (including,\nwithout limitation, attorneys, accountants, consultants, prospective lenders and underwriters and financial advisors).\nThe term “person” as used herein shall be broadly interpreted to include, without limitation, the media and any corporation, limited liability\ncompany, company, unincorporated association, group, partnership, individual or other entity, but shall not include the United States Securities\nExchange Commission or other federal or state regulatory agencies. Each term “TWT” and “Company” includes, without limitation, its subsidiaries\nand Affiliates.\nIn consideration of being furnished with the Evaluation Material:\n1. Company hereby agrees that Company has not received from TWT by virtue of this letter agreement any rights or claims with respect to the\nEvaluation Material except as specified herein and that, subject to paragraph 3, Company and its Representatives will keep the Evaluation Material\nconfidential and will not, without the prior written consent of TWT, disclose the Evaluation Material, in whole or in part, or use it, directly or\nindirectly, for any purpose other than for the sole purpose of evaluating a possible Transaction. Moreover, Company agrees to disclose that it is\nevaluating a Transaction and to transmit Evaluation Material only to those Representatives of Company who are assisting Company with evaluating\nsuch Transaction and are informed by Company of the confidential nature of the Evaluation Material and agree with Company to be bound by the\nterms of this letter agreement to the extent stated to be applicable to it prior to the delivery of any Evaluation Material. Company will be responsible\nfor any actions by its Representatives which would be a breach of this letter agreement.\n2.(a) Company agrees that subject to paragraph 3, without the prior written consent of TWT, neither Company nor its Representatives will\ndisclose to any person (other than Company’s Representatives) any information regarding a possible Transaction or the Evaluation Material,\nincluding, without limitation (i) the fact that discussions or negotiations are taking place concerning a possible Transaction, including the status\nthereof, or the termination of discussions or negotiations with TWT, (ii) any of the terms, conditions or other facts with respect to any such possible\nTransaction or of TWT’s consideration of a possible Transaction, (iii) that this letter agreement exists or the terms hereof, or that Evaluation Material\nhas been made available to Company or (iv) any opinion or view with respect to the Evaluation Material; provided that Company or its\nRepresentatives may make such disclosures if Company believes on advice of its counsel that such disclosure must be made by Company or its\nRepresentatives to avoid committing a violation of law or of any rule or regulation of any securities association, stock exchange or national securities\nquotation system on which Company’s or its Representatives’ securities are listed or traded. In such event, Company shall use its reasonable best\nefforts to give advance written notice to TWT. Neither Company nor its Representatives shall consult any third party regarding the possibility for\ncollaboration with Company in connection with a possible Transaction without the prior written consent of TWT.\n(b) TWT agrees that, neither TWT nor its Representatives will disclose to any person (other than TWT’s Representatives) (i) the fact that\ndiscussions or negotiations are taking place concerning a possible Transaction with Company, including the status thereof, or the termination of\ndiscussions or negotiations with Company, (ii) any of the terms, conditions or other facts with respect to any such possible Transaction with the\nCompany or of Company’s consideration of a possible Transaction, or (iii) that this letter agreement exists or the terms hereof, or that Evaluation\nMaterial has been made available to Company; provided that TWT or its Representatives may make such disclosures as TWT determines in good\nfaith upon the advice of counsel may be required by law or any rule or regulation of any securities association, stock exchange or national securities\nquotation system on which TWT’s securities are listed or traded. In such event, TWT shall use its reasonable efforts to give advance written notice to\nCompany.\n3. Company agrees that if Company or any of its Representatives are requested or required (by oral questions, interrogatories, requests for\ninformation or documents, subpoena, civil investigative demand, regulatory request or similar process by any government or governmental agencies\nor authority or by law or regulation) to\n502 SOUTH ROSA RD, MADISON, WI 53719-1256 Fax: 608.663.7037 WEB: WWW.TWT.COM\ndisclose any Evaluation Material, or any of the facts or information referred to in paragraph 2, or any information relating to a possible Transaction,\nCompany will notify TWT timely in writing of the existence, terms and circumstances surrounding such request or requirement (to the extent\npermitted by law) so that TWT, in its sole discretion, may seek a protective order or other appropriate remedy and/or waive compliance with the\nprovisions of this letter agreement; provided that if, in the opinion of Company’s outside counsel, the disclosure to TWT of the factual circumstances\nsurrounding such request or requirement would require disclosure to TWT of confidential information of Company and that such disclosure would\nbe adverse to Company, then TWT will, at its option, either (i) enter into a reasonable confidentiality agreement with respect to such confidential\ninformation or (ii) agree that communication will be made by Company to TWT’s outside counsel on a confidential basis. If, in the absence of a\nprotective order or other remedy or the receipt of a waiver by TWT or any of its Representatives, Company or its Representatives are nonetheless\ncompelled to disclose Evaluation Material to any tribunal, then Company or its Representative may, without liability hereunder, disclose to such\ntribunal only that portion of the Evaluation Material which such counsel advises Company or its Representative is required to be disclosed, provided\nthat such party exercises its reasonable best efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by\ncooperating reasonably with TWT to obtain an appropriate protective order or other assurance that such tribunal will accord the Evaluation Material\nconfidential treatment.\n4. Company understands that, except and to the extent called for in a definitive agreement executed by Company and TWT, neither TWT nor\nany of its Representatives makes any representation or warranty hereunder, express or implied, as to the accuracy or completeness of the Evaluation\nMaterial. Company agrees that neither TWT nor its Representatives shall have any liability to Company or any of its Representatives hereunder\nrelating to or resulting from the use of the Evaluation Material, or any errors therein or omissions therefrom or Company’s or its Representative’s\nconsideration, or participation in a process relating to, a possible Transaction.\n5. Each party agrees that neither party hereto will be under any legal obligation of any kind whatsoever hereunder with respect to a\nTransaction, except for the matters specifically agreed to herein. If either party decides that it does not wish to proceed with a Transaction with the\nother party, then such party will promptly inform the other party of that decision. In that case, or at any time upon the request of TWT for any reason,\nCompany shall promptly redeliver to TWT or certify destruction of all Evaluation Material and any other material (including but not limited to\nwritten and computer files) to the extent containing any Evaluation Material (whether prepared by TWT, its Representatives or otherwise) furnished\nto Company or any of its Representatives and will not retain any copies, extracts or other reproductions in whole or in part of such material,\nprovided, Company and its Representatives shall be permitted to retain all or any portion of the Evaluation Material, in each case in accordance with\nthe confidentiality obligations specified in this letter agreement, (i) to the extent required by applicable law or regulatory authority and (ii) one copy\nof any analysis, interpretation or notes prepared by Company based on Evaluation Material may be retained by Company’s legal department.\nNotwithstanding the return or destruction of the Evaluation Material, Company will continue to be bound by its obligations of confidentiality and\nother obligations hereunder and TWT shall continue to be bound by its obligations hereunder until the termination of this letter agreement pursuant\nto Section 19.\n6. Company agrees that it and its Representatives will direct all inquiries and any requests for information concerning a possible Transaction to\nMerrill Lynch & Co. (“Merrill Lynch”) and XMS Capital Partners (“XMS”). Except as authorized by Merrill Lynch and XMS, Company shall not\ncontact any other members of management or employees of TWT or any customers, suppliers or other third parties (other than Company’s\nRepresentatives) that conduct business with TWT with respect to the Transaction. Notwithstanding anything to the contrary in this letter agreement,\nhowever, the parties and their Representatives also may continue to engage in the same course of communications as they have in the past in the\nordinary course of business.\n7. Company agrees that, for a period of twelve (12) months from the date of this letter agreement, it will not, without the prior written consent\nof TWT, directly or indirectly, solicit for employment or enter into any employment agreement (conditional or otherwise) with or employ any\nemployee of TWT (or anyone who was at any\n502 SOUTH ROSA RD, MADISON, WI 53719-1256 Fax: 608.663.7037 WEB: WWW.TWT.COM\ntime during the twelve (12) month period prior to the date of such solicitation or employment an employee of TWT), except that Company shall not\nbe precluded from hiring an employee who has been terminated by TWT prior to commencement of employment discussions between Company and\nsuch employee, provided such hiring is consistent with such employee’s contractual obligations to TWT. The placing of an advertisement of a\nposition by Company to members of the public generally, such as through newspapers, radio or television, or general mass mailings to the public,\nshall not itself constitute a breach of this paragraph 7.\n8. During the period of twelve (12) months from the date of this letter agreement (the “Standstill Period”), the Company and its\nRepresentatives will not, directly or indirectly, in any manner, without the prior written authorization of the Board of Directors of TWT (i) acquire or\nagree to acquire or make any offer or proposal to acquire any common stock of TWT; (ii) assist, advise, encourage, agree with, discuss or negotiate\nor otherwise act in concert with any other persons to acquire or agree to acquire any material assets of TWT; (iii) solicit, or in any way participate in\nany solicitation of, proxies from holders of the common stock of TWT or form, join or in any way participate in a proxy contest with respect to the\ncommon stock of TWT; (iv) make any proposal for or offer of an extraordinary transaction (including, without limitation, by way of a take-over bid,\ntender or exchange offer, amalgamation, merger or other business combination) involving TWT; (v) engage in any discussions or enter into any\nagreements, commitments or understandings with any person related to or any acquisition of securities or material assets of TWT, (vi) otherwise seek\nto influence or control the Board of Directors, management or policies of TWT or any of its affiliates, (vii) seek any modification to or waiver of the\nCompany’s obligations under this Agreement; (viii) make any public announcement with respect to the foregoing, except as may be required by\napplicable law or regulatory authorities; (ix) take any initiative with respect to TWT that reasonably would be expected to require TWT to make a\npublic announcement; or (x) assist, advise or encourage any person in doing any of the foregoing (including by providing or arranging any\nfinancing).\n9. Each party acknowledges that it and its Affiliates and its and their Representatives may become aware of “material nonpublic\ninformation” (as defined under applicable securities laws) regarding the other party. Both parties understand, and will communicate to all Affiliates\nand Representatives and other persons having knowledge of any material nonpublic information, that it and they are required under applicable\nsecurities laws to refrain from trading in securities of the other party while in possession of this information.\n10. Company agrees that an inadvertent production to it by TWT or any of its Representatives of Evaluation Material protected by the attorney\nclient, attorney work product or other applicable privilege (“Privilege”) of TWT or any of its Representatives, is not intended to constitute a waiver\nof any such Privilege by TWT or any of its Representatives and Company agrees that, upon request, it will immediately return such inadvertently\nproduced Evaluation Material.\n11. This letter agreement is the complete and exclusive statement regarding the subject matter hereof and supersedes all prior and\ncontemporaneous agreements, understandings and communications, oral or written, between the parties regarding such subject matter.\n12. The provisions and covenants set forth in this letter agreement may be amended, modified or waived only by an instrument in writing\nexecuted by TWT and Company, specifying the provision or covenant to be waived or amended. No failure or delay by TWT or Company in\nexercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other\nfurther exercise thereof or the exercise of any other right, power, or privilege hereunder.\n13. Any provision of this letter agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent\nnot held invalid or unenforceable.\n14. Notwithstanding any provision to the contrary contained elsewhere herein, the confidentiality obligations contained in this letter agreement\nor in any other agreement between the parties hereto, as they relate to\n502 SOUTH ROSA RD, MADISON, WI 53719-1256 Fax: 608.663.7037 WEB: WWW.TWT.COM\nany negotiated transaction, shall not apply to the federal tax structure or federal tax treatment of the transaction, and Company (and any of its\nRepresentative) may disclose to any and all persons, without limitation of any kind, the federal tax structure and federal tax treatment of any\ntransaction; provided, that such disclosure may not be made until the earliest of (x) the date of the public announcement of discussions relating to the\ntransaction, (y) the date of the public announcement of the transaction, or (z) the date of the execution of a definitive written agreement to enter into\nthe transaction. The preceding sentence is intended to cause the transaction to be treated as not having been offered under conditions of\nconfidentiality for purposes of Section 1.6011-4(b)(3) (or any successor provision) of the Treasury Regulations promulgated under Section 6011 of\nthe Internal Revenue Code of 1986, as amended, and shall be construed in a manner consistent with such purpose. Subject to the proviso with respect\nto disclosure in the first sentence of this paragraph, TWT acknowledges that it has no proprietary or exclusive rights to the federal tax structure of the\ntransaction or any federal tax matter or federal tax idea related to any negotiated transaction.\n15. Each party agrees that money damages would not be a sufficient remedy for any breach of this letter agreement by it; and that, in addition\nto all other remedies, each party shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach,\nand each party further agrees to waive and to use its best commercially reasonable efforts to cause its Affiliates and their respective Representatives\nto waive any requirement for the securing or posting of any bond in connection with such remedy. In addition, each party agrees that if the other\nparty is the prevailing party in any such litigation, the other party shall be entitled to recover from it all fees, costs and expenses of enforcing any\nright of the other party under or with respect to this letter agreement, including without limitation, such reasonable fees and expenses of attorneys,\nwhich shall include, without limitation, all fees, costs and expenses of appeals.\n16. This letter agreement shall be governed by, and construed (both as to validity and performance) in accordance with, the laws of the State of\nDelaware, without regard to the principles of the conflicts of laws thereof. As the letter agreement is the product of negotiations between the parties,\nneither party shall be deemed the drafter for purposes of construing any ambiguity.\n17. This letter agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken\ntogether shall constitute one and the same agreement, it being understood that all of the parties need not sign the same counterpart. This letter\nagreement may be executed and delivered by facsimile or email transmission of a file in “.pdf” or similar format and upon such delivery, each\nsignature shall be deemed to have the same effect as if the original signature had been delivered to the other party.\n18. Each party’s rights (but not its obligations) under this letter agreement may be assigned by such party to any of its Affiliates or to any party\nthat enters into a transaction substantially similar to the Transaction with such other party. This letter agreement shall inure to the benefit of the\nparties hereto and their respective successors and assigns.\n19. Except as otherwise provided herein, this letter agreement shall terminate twenty-four (24) months after the later of (a) the date of this\nletter agreement or (b) the date upon which Company completes returning the materials required to be returned to TWT pursuant to paragraph 5\nabove, if applicable.\n[SIGNATURE PAGE FOLLOWS]\n502 SOUTH ROSA RD, MADISON, WI 53719-1256 Fax: 608.663.7037 WEB: WWW.TWT.COM\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between TWT and Company.\nVery truly yours,\nTHIRD WAVE TECHNOLOGIES, INC.\nBy: /s/Kevin T. Conroy\nName: Kevin T. Conroy\nTitle: Chief Executive Officer\nAccepted and agreed to as of\nthe date first written above:\nHOLOGIC, INC.\nBy:\nName: Mark J. Casey\nTitle: SVP & General Counsel\n502 SOUTH ROSA RD, MADISON, WI 53719-1256 Fax: 608.663.7037 WEB: WWW.TWT.COM\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between TWT and Company.\nVery truly yours,\nTHIRD WAVE TECHNOLOGIES, INC.\nBy:\nName: Kevin T. Conroy\nTitle: Chief Executive Officer\nAccepted and agreed to as of\nthe date first written above:\nHOLOGIC, INC.\nBy:  Mark J. Casey\nName: Mark J. Casey\nTitle: SVP & General Counsel\n502 SOUTH ROSA RD, MADISON, WI 53719-1256 Fax: 608.663.7037 WEB: WWW.TWT.COM	EX-99.(D)(6) 10 dex99d6.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nThird Wave Technologies\n502 South Rosa Road\nMadison, WI 53719\nFax: 608.663.7037\nWeb: www.twt.com\nLOGO\nMarch 28, 2008\nSTRICTLY CONFIDENTIAL\nHologic, Inc.\n35 Crosby Drive\nBedford, MA 01730\nU.S.A.\nAttention: Rohan Hastie, Senior Director, Business Development\nLadies and Gentlemen:\nIn connection with the consideration of a possible business transaction (the "Transaction") between Hologic, Inc. ("Company") and Third\nWave Technologies, Inc. ("TWT"), TWT has and will provide Company from time to time with certain non-public information regarding TWT's\noperations, assets, liabilities, business prospects, financial projections and financial condition, as well as information pertaining to other matters that\nmay arise in connection with Company's evaluation of the Transaction. As a condition to, and in consideration of, such information being provided\nor made available to Company and its Representatives (as defined below), Company agrees to treat such information (whether prepared by TWT, its\nRepresentatives or otherwise and regardless of the form of communication) which is provided or made available hereunder to Company or to its\nRepresentatives by or on behalf of TWT or its Representatives in accordance with the provisions of this letter agreement, and to take or abstain from\ntaking certain other actions set forth herein. Each of TWT and Company is sometimes referred to herein individually as a "party" and collectively as\nthe "parties."\nAs used herein, the term "Evaluation Material" shall mean any information (whether prepared by TWT or any of its Representatives or\notherwise and whether oral, written or otherwise) which is furnished after execution of this letter agreement to Company or any of its\nRepresentatives by or on behalf of TWT or any of its Representatives for the purpose of Company's evaluation of the Transaction, including any\nreport, analysis, compilation, study, interpretation, forecast, record, reproduction, summary, note or other material prepared by Company or any\nof\nits\nRepresentatives, in whatever form maintained (whether documentary, computer storage or otherwise) to the extent containing, in whole or in part,\nany such information.\nNotwithstanding the foregoing, the term "Evaluation Material" does not include information which: (i) is or becomes generally available to the\npublic other than as a result of a disclosure by Company or its Representatives, or anyone to whom Company or its Representatives transmits such\ninformation; (ii) as evidenced by written records, was already in the possession of Company or its Representatives, provided that the source of\nsuch\ninformation, insofar as is known to Company or any of its Representatives, was not prohibited from transmitting such information to Company or its\nRepresentatives by a contractual, legal, fiduciary or other obligation to TWT; (iii) as evidenced by written records, was or becomes available to\nCompany or its Representatives on a non-confidential basis from a source, other than TWT or one of its Representatives, provided that the source of\nsuch information, insofar as is known to Company, was not prohibited from transmitting such information to Company or its Representatives by a\ncontractual, legal, fiduciary or other obligation to TWT; or (iv) is independently developed by Company or its Representatives without reliance\non\nthe Evaluation Materials.\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\nAs\nused herein, "Representatives" shall mean a person's officers, directors, subsidiaries and "Affiliates" or "Associates" (as each term\nis\ndefined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), employees, agents, advisors (including,\nwithout limitation, attorneys, accountants, consultants, prospective lenders and underwriters and financial advisors).\nThe term "person" as used herein shall be broadly interpreted to include, without limitation, the media and any corporation, limited liability\ncompany, company, unincorporated association, group, partnership, individual or other entity, but shall not include the United States Securities\nExchange Commission or other federal or state regulatory agencies. Each term "TWT" and "Company" includes, without limitation, its subsidiaries\nand Affiliates.\nIn consideration of being furnished with the Evaluation Material:\n1. Company hereby agrees that Company has not received from TWT by virtue of this letter agreement any rights or claims with respect to the\nEvaluation Material except as specified herein and that, subject to paragraph 3, Company and its Representatives will keep the Evaluation Material\nconfidential and will not, without the prior written consent of TWT, disclose the Evaluation Material, in whole or in part, or use it, directly or\nindirectly, for any purpose other than for the sole purpose of evaluating a possible Transaction. Moreover, Company agrees to disclose that it is\nevaluating a Transaction and to transmit Evaluation Material only to those Representatives of Company who are assisting Company with evaluating\nsuch Transaction and are informed by Company of the confidential nature of the Evaluation Material and agree with Company to be bound by the\nterms of this letter agreement to the extent stated to be applicable to it prior to the delivery of any Evaluation Material. Company will be responsible\nfor any actions by its Representatives which would be a breach of this letter agreement.\n2.(a) Company agrees that subject to paragraph 3, without the prior written consent of TWT, neither Company nor its Representatives will\ndisclose to any person (other than Company's Representatives) any information regarding a possible Transaction or the Evaluation Material,\nincluding, without limitation (i) the fact that discussions or negotiations are taking place concerning a possible Transaction, including the status\nthereof, or the termination of discussions or negotiations with TWT, (ii) any of the terms, conditions or other facts with respect to any such possible\nTransaction or of TWT's consideration of a possible Transaction, (iii) that this letter agreement exists or the terms hereof, or that Evaluation Material\nhas been made available to Company or (iv) any opinion or view with respect to the Evaluation Material; provided that Company or its\nRepresentatives may make such disclosures if Company believes on advice of its counsel that such disclosure must be made by Company or its\nRepresentatives to avoid committing a violation of law or of any rule or regulation of any securities association, stock exchange or national securities\nquotation system on which Company's or its Representatives' securities are listed or traded. In such event, Company shall use its reasonable best\nefforts to give advance written notice to TWT. Neither Company nor its Representatives shall consult any third party regarding the possibility for\ncollaboration with Company in connection with a possible Transaction without the prior written consent of TWT.\n(b) TWT agrees that, neither TWT nor its Representatives will disclose to any person (other than TWT's Representatives) (i) the fact that\ndiscussions or negotiations are taking place concerning a possible Transaction with Company, including the status thereof, or the termination of\ndiscussions or negotiations with Company, (ii) any of the terms, conditions or other facts with respect to any such possible Transaction with the\nCompany or of Company's consideration of a possible Transaction, or (iii) that this letter agreement exists or the terms hereof, or that Evaluation\nMaterial has been made available to Company; provided that TWT or its Representatives may make such disclosures as TWT determines in good\nfaith upon the advice of counsel may be required by law or any rule or regulation of any securities association, stock exchange or national securities\nquotation system on which TWT's securities are listed or traded. In such event, TWT shall use its reasonable efforts to give advance written notice to\nCompany.\n3. Company agrees that if Company or any of its Representatives are requested or required (by oral questions, interrogatories, requests for\ninformation or documents, subpoena, civil investigative demand, regulatory request or similar process by any government or governmental agencies\nor authority or by law or regulation) to\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\ndisclose any Evaluation Material, or any of the facts or information referred to in paragraph 2, or any information relating to a possible Transaction,\nCompany will notify TWT timely in writing of the existence, terms and circumstances surrounding such request or requirement (to the extent\npermitted by law) so that TWT, in its sole discretion, may seek a protective order or other appropriate remedy and/or waive compliance with the\nprovisions of this letter agreement; provided that if, in the opinion of Company's outside counsel, the disclosure to TWT of the factual circumstances\nsurrounding such request or requirement would require disclosure to TWT of confidential information of Company and that such disclosure would\nbe adverse to Company, then TWT will, at its option, either (i) enter into a reasonable confidentiality agreement with respect to such confidential\ninformation or (ii) agree that communication will be made by Company to TWT's outside counsel on a confidential basis. If, in the absence of a\nprotective order or other remedy or the receipt of a waiver by TWT or any of its Representatives, Company or its Representatives are nonetheless\ncompelled to disclose Evaluation Material to any tribunal, then Company or its Representative may, without liability hereunder disclose to such\ntribunal only that portion of the Evaluation Material which such counsel advises Company or its Representative is required to be disclosed, provided\nthat such party exercises its reasonable best efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by\ncooperating reasonably with TWT to obtain an appropriate protective order or other assurance that such tribunal will accord the Evaluation Material\nconfidential treatment.\n4. Company understands that, except and to the extent called for in a definitive agreement executed by Company and TWT, neither TWT nor\nany of its Representatives makes any representation or warranty hereunder, express or implied, as to the accuracy or completeness of the Evaluation\nMaterial. Company agrees that neither TWT nor its Representatives shall have any liability to Company or any of its Representatives hereunder\nrelating to or resulting from the use of the Evaluation Material, or any errors therein or omissions therefrom or Company's or its Representative's\nconsideration, or participation in a process relating to, a possible Transaction.\n5. Each party agrees that neither party hereto will be under any legal obligation of any kind whatsoever hereunder with respect to a\nTransaction, except for the matters specifically agreed to herein. If either party decides that it does not wish to proceed with a Transaction with the\nother party, then such party will promptly inform the other party of that decision. In that case, or at any time upon the request of TWT for any reason,\nCompany shall promptly redeliver to TWT or certify destruction of all Evaluation Material and any other material (including but not limited to\nwritten and computer files) to the extent containing any Evaluation Material (whether prepared by TWT, its Representatives or otherwise) furnished\nto Company or any of its Representatives and will not retain any copies, extracts or other reproductions in whole or in part of such material,\nprovided, Company and its Representatives shall be permitted to retain all or any portion of the Evaluation Material, in each case in accordance with\nthe confidentiality obligations specified in this letter agreement, (i) to the extent required by applicable law or regulatory authority and (ii) one copy\nof any analysis, interpretation or notes prepared by Company based on Evaluation Material may be retained by Company's legal department.\nNotwithstanding the return or destruction of the Evaluation Material, Company will continue to be bound by its obligations of confidentiality and\nother obligations hereunder and TWT shall continue to be bound by its obligations hereunder until the termination of this letter agreement pursuant\nto Section 19.\n6. Company agrees that it and its Representatives will direct all inquiries and any requests for information concerning a possible Transaction to\nMerrill Lynch & Co. ("Merrill Lynch") and XMS Capital Partners ("XMS"). Except as authorized by Merrill Lynch and XMS, Company shall not\ncontact any other members of management or employees of TWT or any customers, suppliers or other third parties (other than Company's\nRepresentatives) that conduct business with TWT with respect to the Transaction. Notwithstanding anything to the contrary in this letter agreement,\nhowever, the parties and their Representatives also may continue to engage in the same course of communications as they have in the past in the\nordinary course of business.\n7. Company agrees that, for a period of twelve (12) months from the date of this letter agreement, it will not, without the prior written consent\nof TWT, directly or indirectly, solicit for employment or enter into any employment agreement (conditional or otherwise) with or employ any\nemployee of TWT (or anyone who was at any\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\ntime during the twelve (12) month period prior to the date of such solicitation or employment an employee of TWT), except that Company shall not\nbe precluded from hiring an employee who has been terminated by TWT prior to commencement of employment discussions between Company and\nsuch employee, provided such hiring is consistent with such employee's contractual obligations to TWT. The placing of an advertisement of\na\nposition by Company to members of the public generally, such as through newspapers, radio or television, or general mass mailings to the public,\nshall not itself constitute a breach of this paragraph 7.\n8. During the period of twelve (12) months from the date of this letter agreement (the "Standstill Period"), the Company and its\nRepresentatives will not, directly or indirectly, in any manner, without the prior written authorization of the Board of Directors of TWT (i) acquire\nor\nagree to acquire or make any offer or proposal to acquire any common stock of TWT; (ii) assist, advise, encourage, agree with, discuss or negotiate\nor otherwise act in concert with any other persons to acquire or agree to acquire any material assets of TWT; (iii) solicit, or in any way participate in\nany solicitation of, proxies from holders of the common stock of TWT or form, join or in any way participate in a proxy contest with respect to the\ncommon stock of TWT; (iv) make any proposal for or offer of an extraordinary transaction (including, without limitation, by way of a take-over bid,\ntender or exchange offer, amalgamation, merger or other business combination) involving TWT; (v) engage in any discussions or enter into any\nagreements, commitments or understandings with any person related to or any acquisition of securities or material assets of TWT, (vi) otherwise seek\nto influence or control the Board of Directors, management or policies of TWT or any of its affiliates, (vii) seek any modification to or waiver of the\nCompany's obligations under this Agreement; (viii) make any public announcement with respect to the foregoing, except as may be required by\napplicable law or regulatory authorities; (ix) take any initiative with respect to TWT that reasonably would be expected to require TWT to make\na\npublic announcement; or (x) assist, advise or encourage any person in doing any of the foregoing (including by providing or arranging any\nfinancing).\n9. Each party acknowledges that it and its Affiliates and its and their Representatives may become aware of "material nonpublic\ninformation" (as defined under applicable securities laws) regarding the other party. Both parties understand, and will communicate to all Affiliates\nand Representatives and other persons having knowledge of any material nonpublic information, that it and they are required under applicable\nsecurities laws to refrain from trading in securities of the other party while in possession of this information.\n10. Company agrees that an inadvertent production to it by TWT or any of its Representatives of Evaluation Material protected by the attorney\nclient, attorney work product or other applicable privilege ("Privilege") of TWT or any of its Representatives, is not intended to constitute a waiver\nof any such Privilege by TWT or any of its Representatives and Company agrees that, upon request, it will immediately return such inadvertently\nproduced Evaluation Material.\n11. This letter agreement is the complete and exclusive statement regarding the subject matter hereof and supersedes all prior and\ncontemporaneous agreements, understandings and communications, oral or written, between the parties regarding such subject matter.\n12. The provisions and covenants set forth in this letter agreement may be amended, modified or waived only by an instrument in writing\nexecuted by TWT and Company, specifying the provision or covenant to be waived or amended. No failure or delay by TWT or Company in\nexercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other\nfurther exercise thereof or the exercise of any other right, power, or privilege hereunder.\n13. Any provision of this letter agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent\nnot held invalid or unenforceable.\n14. Notwithstanding any provision to the contrary contained elsewhere herein, the confidentiality obligations contained in this letter agreement\nor in any other agreement between the parties hereto, as they relate to\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\nany negotiated transaction, shall not apply to the federal tax structure or federal tax treatment of the transaction, and Company (and any of its\nRepresentative) may disclose to any and all persons, without limitation of any kind, the federal tax structure and federal tax treatment of any\ntransaction; provided, that such disclosure may not be made until the earliest of (x) the date of the public announcement of discussions relating to the\ntransaction, (y) the date of the public announcement of the transaction, or (z) the date of the execution of a definitive written agreement to enter into\nthe transaction. The preceding sentence is intended to cause the transaction to be treated as not having been offered under conditions of\nconfidentiality for purposes of Section 1.6011-4(b)(3) (or any successor provision) of the Treasury Regulations promulgated under Section 6011 of\nthe Internal Revenue Code of 1986, as amended, and shall be construed in a manner consistent with such purpose. Subject to the proviso with respect\nto disclosure in the first sentence of this paragraph, TWT acknowledges that it has no proprietary or exclusive rights to the federal tax structure of the\ntransaction or any federal tax matter or federal tax idea related to any negotiated transaction.\n15. Each party agrees that money damages would not be a sufficient remedy for any breach of this letter agreement by it; and that, in addition\nto all other remedies, each party shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach,\nand each party further agrees to waive and to use its best commercially reasonable efforts to cause its Affiliates and their respective Representatives\nto waive any requirement for the securing or posting of any bond in connection with such remedy. In addition, each party agrees that if the other\nparty is the prevailing party in any such litigation, the other party shall be entitled to recover from it all fees, costs and expenses of enforcing any\nright of the other party under or with respect to this letter agreement, including without limitation, such reasonable fees and expenses of attorneys,\nwhich shall include, without limitation, all fees, costs and expenses of appeals.\n16. This letter agreement shall be governed by, and construed (both as to validity and performance) in accordance with, the laws of the State of\nDelaware, without regard to the principles of the conflicts of laws thereof. As the letter agreement is the product of negotiations between the parties,\nneither party shall be deemed the drafter for purposes of construing any ambiguity.\n17. This letter agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken\ntogether shall constitute one and the same agreement, it being understood that all of the parties need not sign the same counterpart. This letter\nagreement may be executed and delivered by facsimile or email transmission of a file in ".pdf" or similar format and upon such delivery, each\nsignature shall be deemed to have the same effect as if the original signature had been delivered to the other party.\n18. Each party's rights (but not its obligations) under this letter agreement may be assigned by such party to any of its Affiliates or to any party\nthat enters into a transaction substantially similar to the Transaction with such other party. This letter agreement shall inure to the benefit of the\nparties hereto and their respective successors and assigns.\n19. Except as otherwise provided herein, this letter agreement shall terminate twenty-four (24) months after the later of (a) the date of this\nletter agreement or (b) the date upon which Company completes returning the materials required to be returned to TWT pursuant to paragraph 5\nabove, if applicable.\n[SIGNATURE PAGE FOLLOWS]\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between TWT and Company.\nVery truly yours,\nTHIRD WAVE TECHNOLOGIES, INC.\nBy: /s/ Kevin T. Conroy\nName: Kevin T. Conroy\nTitle: Chief Executive Officer\nAccepted and agreed to as of\nthe date first written above:\nHOLOGIC, INC.\nBy:\nName: Mark J. Casey\nTitle: SVP & General Counsel\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between TWT and Company.\nVery truly yours,\nTHIRD WAVE TECHNOLOGIES, INC.\nBy:\nName: Kevin T. Conroy\nTitle: Chief Executive Officer\nAccepted and agreed to as of\nthe date first written above:\nHOLOGIC, INC.\nBy: Mark J. Casey\nName: Mark J. Casey\nTitle: SVP & General Counsel\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM	EX-99.(D)(6) 10 dex99d6.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nLOGO\nThird Wave Technologies\n502 South Rosa Road\nMadison, WI 53719\nFax: 608.663.7037\nWeb: www.twt.com\nMarch 28, 2008\nSTRICTLY CONFIDENTIAL\nHologic, Inc.\n35 Crosby Drive\nBedford, MA 01730\nU.S .A.\nAttention: Rohan Hastie, Senior Director, Business Development\nLadies and Gentlemen:\nIn connection with the consideration of a possible business transaction (the “Transaction”) between Hologic, Inc. (“Company”) and Third\nWave Technologies, Inc. (“TWT”), TWT has and will provide Company from time to time with certain non-public information regarding TWT’s\noperations, assets, liabilities, business prospects, financial projections and financial condition, as well as information pertaining to other matters that\nmay arise in connection with Company’s evaluation of the Transaction. As a condition to, and in consideration of, such information being provided\nor made available to Company and its Representatives (as defined below), Company agrees to treat such information (whether prepared by TWT, its\nRepresentatives or otherwise and regardless of the form of communication) which is provided or made available hereunder to Company or to its\nRepresentatives by or on behalf of TWT or its Representatives in accordance with the provisions of this letter agreement, and to take or abstain from\ntaking certain other actions set forth herein. Each of TWT and Company is sometimes referred to herein individually as a “party” and collectively as\nthe “parties.”\nAs used herein, the term “Evaluation Material” shall mean any information (whether prepared by TWT or any of its Representatives or\notherwise and whether oral, written or otherwise) which is furnished after execution of this letter agreement to Company or any of its\nRepresentatives by or on behalf of TWT or any of its Representatives for the purpose of Company’s evaluation of the Transaction, including any\nreport, analysis, compilation, study, interpretation, forecast, record, reproduction, summary, note or other material prepared by Company or any of its\nRepresentatives, in whatever form maintained (whether documentary, computer storage or otherwise) to the extent containing, in whole or in part,\nany such information.\nNotwithstanding the foregoing, the term “Evaluation Material” does not include information which: (i) is or becomes generally available to the\npublic other than as a result of a disclosure by Company or its Representatives, or anyone to whom Company or its Representatives transmits such\ninformation; (ii) as evidenced by written records, was already in the possession of Company or its Representatives, provided that the source of such\ninformation, insofar as is known to Company or any of its Representatives, was not prohibited from transmitting such information to Company or its\nRepresentatives by a contractual, legal, fiduciary or other obligation to TWT; (iii) as evidenced by written records, was or becomes available to\nCompany or its Representatives on a non-confidential basis from a source, other than TWT or one of its Representatives, provided that the source of\nsuch information, insofar as is known to Company, was not prohibited from transmitting such information to Company or its Representatives by a\ncontractual, legal, fiduciary or other obligation to TWT; or (iv) is independently developed by Company or its Representatives without reliance on\nthe Evaluation Materials.\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\nAs used herein, “Representatives” shall mean a person’s officers, directors, subsidiaries and “Affiliates” or “Associates” (as each term is\ndefined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), employees, agents, advisors (including,\nwithout limitation, attorneys, accountants, consultants, prospective lenders and underwriters and financial advisors).\nThe term “person” as used herein shall be broadly interpreted to include, without limitation, the media and any corporation, limited liability\ncompany, company, unincorporated association, group, partnership, individual or other entity, but shall not include the United States Securities\nExchange Commission or other federal or state regulatory agencies. Each term “TWT” and “Company” includes, without limitation, its subsidiaries\nand Affiliates.\nIn consideration of being furnished with the Evaluation Material:\n1. Company hereby agrees that Company has not received from TWT by virtue of this letter agreement any rights or claims with respect to the\nEvaluation Material except as specified herein and that, subject to paragraph 3, Company and its Representatives will keep the Evaluation Material\nconfidential and will not, without the prior written consent of TWT, disclose the Evaluation Material, in whole or in part, or use it, directly or\nindirectly, for any purpose other than for the sole purpose of evaluating a possible Transaction. Moreover, Company agrees to disclose that it is\nevaluating a Transaction and to transmit Evaluation Material only to those Representatives of Company who are assisting Company with evaluating\nsuch Transaction and are informed by Company of the confidential nature of the Evaluation Material and agree with Company to be bound by the\nterms of this letter agreement to the extent stated to be applicable to it prior to the delivery of any Evaluation Material. Company will be responsible\nfor any actions by its Representatives which would be a breach of this letter agreement.\n2.(a) Company agrees that subject to paragraph 3, without the prior written consent of TWT, neither Company nor its Representatives will\ndisclose to any person (other than Company’s Representatives) any information regarding a possible Transaction or the Evaluation Material,\nincluding, without limitation (i) the fact that discussions or negotiations are taking place concerning a possible Transaction, including the status\nthereof, or the termination of discussions or negotiations with TWT, (ii) any of the terms, conditions or other facts with respect to any such possible\nTransaction or of TWT’s consideration of a possible Transaction, (iii) that this letter agreement exists or the terms hereof, or that Evaluation Material\nhas been made available to Company or (iv) any opinion or view with respect to the Evaluation Material; provided that Company or its\nRepresentatives may make such disclosures if Company believes on advice of its counsel that such disclosure must be made by Company or its\nRepresentatives to avoid committing a violation of law or of any rule or regulation of any securities association, stock exchange or national securities\nquotation system on which Company’s or its Representatives’ securities are listed or traded. In such event, Company shall use its reasonable best\nefforts to give advance written notice to TWT. Neither Company nor its Representatives shall consult any third party regarding the possibility for\ncollaboration with Company in connection with a possible Transaction without the prior written consent of TWT.\n(b) TWT agrees that, neither TWT nor its Representatives will disclose to any person (other than TWT’s Representatives) (i) the fact that\ndiscussions or negotiations are taking place concerning a possible Transaction with Company, including the status thereof, or the termination of\ndiscussions or negotiations with Company, (ii) any of the terms, conditions or other facts with respect to any such possible Transaction with the\nCompany or of Company’s consideration of a possible Transaction, or (iii) that this letter agreement exists or the terms hereof, or that Evaluation\nMaterial has been made available to Company; provided that TWT or its Representatives may make such disclosures as TWT determines in good\nfaith upon the advice of counsel may be required by law or any rule or regulation of any securities association, stock exchange or national securities\nquotation system on which TWT’s securities are listed or traded. In such event, TWT shall use its reasonable efforts to give advance written notice to\nCompany.\n3. Company agrees that if Company or any of its Representatives are requested or required (by oral questions, interrogatories, requests for\ninformation or documents, subpoena, civil investigative demand, regulatory request or similar process by any government or governmental agencies\nor authority or by law or regulation) to\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\ndisclose any Evaluation Material, or any of the facts or information referred to in paragraph 2, or any information relating to a possible Transaction,\nCompany will notify TWT timely in writing of the existence, terms and circumstances surrounding such request or requirement (to the extent\npermitted by law) so that TWT, in its sole discretion, may seek a protective order or other appropriate remedy and/or waive compliance with the\nprovisions of this letter agreement; provided that if, in the opinion of Company’s outside counsel, the disclosure to TWT of the factual circumstances\nsurrounding such request or requirement would require disclosure to TWT of confidential information of Company and that such disclosure would\nbe adverse to Company, then TWT will, at its option, either (i) enter into a reasonable confidentiality agreement with respect to such confidential\ninformation or (ii) agree that communication will be made by Company to TWT’s outside counsel on a confidential basis. If, in the absence of a\nprotective order or other remedy or the receipt of a waiver by TWT or any of its Representatives, Company or its Representatives are nonetheless\ncompelled to disclose Evaluation Material to any tribunal, then Company or its Representative may, without liability hereunder, disclose to such\ntribunal only that portion of the Evaluation Material which such counsel advises Company or its Representative is required to be disclosed, provided\nthat such party exercises its reasonable best efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by\ncooperating reasonably with TWT to obtain an appropriate protective order or other assurance that such tribunal will accord the Evaluation Material\nconfidential treatment.\n4. Company understands that, except and to the extent called for in a definitive agreement executed by Company and TWT, neither TWT nor\nany of its Representatives makes any representation or warranty hereunder, express or implied, as to the accuracy or completeness of the Evaluation\nMaterial. Company agrees that neither TWT nor its Representatives shall have any liability to Company or any of its Representatives hereunder\nrelating to or resulting from the use of the Evaluation Material, or any errors therein or omissions therefrom or Company’s or its Representative’s\nconsideration, or participation in a process relating to, a possible Transaction.\n5. Each party agrees that neither party hereto will be under any legal obligation of any kind whatsoever hereunder with respect to a\nTransaction, except for the matters specifically agreed to herein. If either party decides that it does not wish to proceed with a Transaction with the\nother party, then such party will promptly inform the other party of that decision. In that case, or at any time upon the request of TWT for any reason,\nCompany shall promptly redeliver to TWT or certify destruction of all Evaluation Material and any other material (including but not limited to\nwritten and computer files) to the extent containing any Evaluation Material (whether prepared by TWT, its Representatives or otherwise) furnished\nto Company or any of its Representatives and will not retain any copies, extracts or other reproductions in whole or in part of such material,\nprovided, Company and its Representatives shall be permitted to retain all or any portion of the Evaluation Material, in each case in accordance with\nthe confidentiality obligations specified in this letter agreement, (i) to the extent required by applicable law or regulatory authority and (ii) one copy\nof any analysis, interpretation or notes prepared by Company based on Evaluation Material may be retained by Company’s legal department.\nNotwithstanding the return or destruction of the Evaluation Material, Company will continue to be bound by its obligations of confidentiality and\nother obligations hereunder and TWT shall continue to be bound by its obligations hereunder until the termination of this letter agreement pursuant\nto Section 19.\n6. Company agrees that it and its Representatives will direct all inquiries and any requests for information concerning a possible Transaction to\nMerrill Lynch & Co. (“Merrill Lynch”) and XMS Capital Partners (“XMS”). Except as authorized by Merrill Lynch and XMS, Company shall not\ncontact any other members of management or employees of TWT or any customers, suppliers or other third parties (other than Company’s\nRepresentatives) that conduct business with TWT with respect to the Transaction. Notwithstanding anything to the contrary in this letter agreement,\nhowever, the parties and their Representatives also may continue to engage in the same course of communications as they have in the past in the\nordinary course of business.\n7. Company agrees that, for a period of twelve (12) months from the date of this letter agreement, it will not, without the prior written consent\nof TWT, directly or indirectly, solicit for employment or enter into any employment agreement (conditional or otherwise) with or employ any\nemployee of TWT (or anyone who was at any\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\ntime during the twelve (12) month period prior to the date of such solicitation or employment an employee of TWT), except that Company shall not\nbe precluded from hiring an employee who has been terminated by TWT prior to commencement of employment discussions between Company and\nsuch employee, provided such hiring is consistent with such employee’s contractual obligations to TWT. The placing of an advertisement of a\nposition by Company to members of the public generally, such as through newspapers, radio or television, or general mass mailings to the public,\nshall not itself constitute a breach of this paragraph 7.\n8. During the period of twelve (12) months from the date of this letter agreement (the “Standstill Period”), the Company and its\nRepresentatives will not, directly or indirectly, in any manner, without the prior written authorization of the Board of Directors of TWT (i) acquire or\nagree to acquire or make any offer or proposal to acquire any common stock of TWT; (ii) assist, advise, encourage, agree with, discuss or negotiate\nor otherwise act in concert with any other persons to acquire or agree to acquire any material assets of TWT; (iii) solicit, or in any way participate in\nany solicitation of, proxies from holders of the common stock of TWT or form, join or in any way participate in a proxy contest with respect to the\ncommon stock of TWT; (iv) make any proposal for or offer of an extraordinary transaction (including, without limitation, by way of a take-over bid,\ntender or exchange offer, amalgamation, merger or other business combination) involving TWT; (v) engage in any discussions or enter into any\nagreements, commitments or understandings with any person related to or any acquisition of securities or material assets of TWT, (vi) otherwise seek\nto influence or control the Board of Directors, management or policies of TWT or any of its affiliates, (vii) seek any modification to or waiver of the\nCompany’s obligations under this Agreement; (viii) make any public announcement with respect to the foregoing, except as may be required by\napplicable law or regulatory authorities; (ix) take any initiative with respect to TWT that reasonably would be expected to require TWT to make a\npublic announcement; or (x) assist, advise or encourage any person in doing any of the foregoing (including by providing or arranging any\nfinancing).\n9. Each party acknowledges that it and its Affiliates and its and their Representatives may become aware of “material nonpublic\ninformation” (as defined under applicable securities laws) regarding the other party. Both parties understand, and will communicate to all Affiliates\nand Representatives and other persons having knowledge of any material nonpublic information, that it and they are required under applicable\nsecurities laws to refrain from trading in securities of the other party while in possession of this information.\n10. Company agrees that an inadvertent production to it by TWT or any of its Representatives of Evaluation Material protected by the attorney\nclient, attorney work product or other applicable privilege (“Privilege”) of TWT or any of its Representatives, is not intended to constitute a waiver\nof any such Privilege by TWT or any of its Representatives and Company agrees that, upon request, it will immediately return such inadvertently\nproduced Evaluation Material.\n11. This letter agreement is the complete and exclusive statement regarding the subject matter hereof and supersedes all prior and\ncontemporaneous agreements, understandings and communications, oral or written, between the parties regarding such subject matter.\n12. The provisions and covenants set forth in this letter agreement may be amended, modified or waived only by an instrument in writing\nexecuted by TWT and Company, specifying the provision or covenant to be waived or amended. No failure or delay by TWT or Company in\nexercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other\nfurther exercise thereof or the exercise of any other right, power, or privilege hereunder.\n13. Any provision of this letter agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent\nnot held invalid or unenforceable.\n14. Notwithstanding any provision to the contrary contained elsewhere herein, the confidentiality obligations contained in this letter agreement\nor in any other agreement between the parties hereto, as they relate to\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\nany negotiated transaction, shall not apply to the federal tax structure or federal tax treatment of the transaction, and Company (and any of its\nRepresentative) may disclose to any and all persons, without limitation of any kind, the federal tax structure and federal tax treatment of any\ntransaction; provided, that such disclosure may not be made until the earliest of (x) the date of the public announcement of discussions relating to the\ntransaction, (y) the date of the public announcement of the transaction, or (z) the date of the execution of a definitive written agreement to enter into\nthe transaction. The preceding sentence is intended to cause the transaction to be treated as not having been offered under conditions of\nconfidentiality for purposes of Section 1.6011–4(b)(3) (or any successor provision) of the Treasury Regulations promulgated under Section 6011 of\nthe Internal Revenue Code of 1986, as amended, and shall be construed in a manner consistent with such purpose. Subject to the proviso with respect\nto disclosure in the first sentence of this paragraph, TWT acknowledges that it has no proprietary or exclusive rights to the federal tax structure of the\ntransaction or any federal tax matter or federal tax idea related to any negotiated transaction.\n15. Each party agrees that money damages would not be a sufficient remedy for any breach of this letter agreement by it; and that, in addition\nto all other remedies, each party shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach,\nand each party further agrees to waive and to use its best commercially reasonable efforts to cause its Affiliates and their respective Representatives\nto waive any requirement for the securing or posting of any bond in connection with such remedy. In addition, each party agrees that if the other\nparty is the prevailing party in any such litigation, the other party shall be entitled to recover from it all fees, costs and expenses of enforcing any\nright of the other party under or with respect to this letter agreement, including without limitation, such reasonable fees and expenses of attorneys,\nwhich shall include, without limitation, all fees, costs and expenses of appeals.\n16. This letter agreement shall be governed by, and construed (both as to validity and performance) in accordance with, the laws of the State of\nDelaware, without regard to the principles of the conflicts of laws thereof. As the letter agreement is the product of negotiations between the parties,\nneither party shall be deemed the drafter for purposes of construing any ambiguity.\n17. This letter agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken\ntogether shall constitute one and the same agreement, it being understood that all of the parties need not sign the same counterpart. This letter\nagreement may be executed and delivered by facsimile or email transmission of a file in “.pdf” or similar format and upon such delivery, each\nsignature shall be deemed to have the same effect as if the original signature had been delivered to the other party.\n18. Each party’s rights (but not its obligations) under this letter agreement may be assigned by such party to any of its Affiliates or to any party\nthat enters into a transaction substantially similar to the Transaction with such other party. This letter agreement shall inure to the benefit of the\nparties hereto and their respective successors and assigns.\n19. Except as otherwise provided herein, this letter agreement shall terminate twenty-four (24) months after the later of (a) the date of this\nletter agreement or (b) the date upon which Company completes returning the materials required to be returned to TWT pursuant to paragraph 5\nabove, if applicable.\n[SIGNATURE PAGE FOLLOWS]\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between TWT and Company.\nVery truly yours,\nTHIRD WAVE TECHNOLOGIES, INC.\nBy: /s/ Kevin T. Conroy\nName: Kevin T. Conroy\nTitle: Chief Executive Officer\nAccepted and agreed to as of\nthe date first written above:\nHOLOGIC, INC.\nBy:\nName: Mark J. Casey\nTitle: SVP & General Counsel\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between TWT and Company.\nVery truly yours,\nTHIRD WAVE TECHNOLOGIES, INC.\nBy:\nName: Kevin T. Conroy\nTitle: Chief Executive Officer\nAccepted and agreed to as of\nthe date first written above:\nHOLOGIC, INC.\nBy: Mark J. Casey\nName: Mark J. Casey\nTitle: SVP & General Counsel\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM
c7871f8e79dca4e051a17b51a411dc98.pdf	effective_date jurisdiction party term	EX-10.5 15 d349756dex105.htm SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT - JOHN\nM. EGLE\nExhibit 10.5\nSECOND AMENDED & RESTATED EMPLOYMENT,\nNON-DISCLOSURE, AND NON-COMPETE AGREEMENT\nThis Second Amended & Restated Employment, Non-Disclosure, and Non-Compete Agreement (this “AGREEMENT”) is made effective as of\nMay 1, 2011, by Hub City Industries, L.L.C ., a Louisiana liability company (the “EMPLOYER”), and John M. Egle, an individual resident in\nLafayette, Louisiana (the “EMPLOYEE”).\nRECITALS\nThe Employer desires the Employee’s continued employment with the Employer, and the Employee wishes to accept such continued\nemployment, upon the terms and conditions set forth in this Agreement.\nAGREEMENT\nThe parties, intending to be legally bound, agree as follows:\n1. DEFINITIONS\nFor the purposes of this Agreement, the following terms have the meanings specified or referred to in this Section 1.\n“AGREEMENT”—this Employment, Non-Disclosure, and Non-Competition Agreement, as amended from time to time.\n“BASIC COMPENSATION”—Salary and Benefits.\n“BENEFITS”—as defined in Section 3.1(b).\n“CONFIDENTIAL INFORMATION”—any and all:\n(a) trade secrets concerning the business and affairs of the Employer, product specifications, data, know-how, formulae, compositions,\nprocesses, designs, sketches, photographs, graphs, drawings, samples, inventions and ideas, past, current, and planned research and\ndevelopment, current and planned manufacturing or distribution methods and processes, customer lists, current and anticipated customer\nrequirements, price lists, market studies, business plans, computer software and programs (including object code and source code), computer\nsoftware and database technologies, systems, structures, and architectures (and related formulae, compositions, processes, improvements,\ndevices, know-how, inventions, discoveries, concepts, ideas, designs, methods and information) and any other information, however\ndocumented, that is a trade secret within the meaning of trade secret laws of the State of Louisiana;\n(b) information concerning the business and affairs of the Employer (which includes historical financial statements, financial projections\nand budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds of key personnel, personnel\ntraining and techniques and materials); and\n1\n(c) notes, analysis, compilations, studies, summaries, and other material prepared by or for the Employer containing or based, in whole or\nin part, on any information included in the foregoing.\n“DISABILITY”—as defined in Section 6.2.\n“EFFECTIVE DATE”—the date stated in the first paragraph of the Agreement.\n“EMPLOYMENT PERIOD”—the term of the Executive’s employment under this Agreement.\n“FISCAL YEAR”—the Employer’s fiscal year, as it exists on the Effective Date or as changed from time to time.\n“FOR CAUSE”—as defined in Section 6.3.\n“PERSON”—any individual, corporation (including any non-profit corporation), general or limited partnership, limited liability company, joint\nventure, estate, trust, association, organization, or governmental body.\n“POST-EMPLOYMENT PERIOD”—as defined in Section 8.2.\n“PROPRIETARY ITEMS”—as defined in Section 7.2(a)(iv).\n“SALARY”—as defined in Section 3.1(a).\n2. EMPLOYMENT TERMS AND DUTIES\n2.1 EMPLOYMENT\nThe Employer hereby employs the Employee, and the Employee hereby accepts employment by the Employer, upon the terms and conditions\nset forth in this Agreement.\n2.2 TERM\nSubject to the provisions of Section 6, the term of the Employee’s employment under this Agreement will be 2 years, beginning on the 1 day\nof May 2011 and ending on April 30, 2012. The 2nd year of the Agreement is conditioned upon the Employee booking International sales in excess\nof one million ($1,000,000) dollars, within the 1 year of the Agreement. Upon agreement of the Employer and Employee, the terms of this\nAgreement may be extended beyond the initial term until terminated for cause or until terminated as otherwise provided in this Agreement.\n2\nst\nst\n2.3 DUTIES\nThe Employee will initially serve as the Special Assistant to Michel Moreno, and may sometimes also be referred to as the “Market Advisor”\nof the Employer. The Employee will use his best efforts to promote the success of the Employer’s business, and will cooperate fully with the other\nemployees in the advancement of the best interests of Employer. Employee will expand the business opportunities of the Employer, including, but\nnot limited to, increasing revenues and earnings of the Employer. Nothing in this Section 2.3, however, will prevent the Employee from engaging in\nadditional activities in connection with personal investments and community affairs that are not inconsistent with Employee’s duties under this\nAgreement.\n3. COMPENSATION\n3.1 BASIC COMPENSATION\n(a) Salary. The Employee will be paid an annual salary of $244,000.00, subject to adjustment as provided below (the “SALARY”), which\nwill be payable in equal periodic installments according to the Employer’s customary payroll practices, but no less frequently than monthly.\nThe Salary will be reviewed by the Michel Moreno not less frequently than annually, and may not be adjusted downward.\n(b) Benefits. The Employee will, during the Employment Period, be permitted to participate in the pension, profit sharing, bonus, life\ninsurance, hospitalization, major medical, and other employee benefit plans of the Employer that may be in effect from time to time, to the\nextent the Employee is eligible under the terms of those plans (collectively, the “BENEFITS”). The Employer shall not by reason of this\nSection 3 be obligated to institute, maintain, or refrain from changing, amending, or discontinuing, any employee benefit program or plan, so\nlong as such actions are similarly applicable to covered employees generally. The Employer will pay 100% of Employee’s group health and\ndisability insurance premiums as maintained by the Employer.\n(c) The Employer may withhold from the Salary, incentive compensation, and any other compensation, benefits, or amounts payable\nunder this Agreement all federal, state, city, or other taxes as may be required pursuant to any law or governmental regulation or ruling.\n3.2 INCENTIVE COMPENSATION\n(a) The Employee will be entitled to receive 3% to 5%, (percentage to be jointly determined by Employer and Employee), of revenue\ndirectly generated from international sales by Employee for the Company. Gross Revenue as used herein shall be based upon billings made by\nthe Company and compensation predicated thereon shall be paid irrespective of the date of payment to the Company. Employee shall receive\ncompensation upon revenue generated during the term of this Agreement but billed thereafter. Cash and trade discounts shall not be deducted\nfrom the gross selling price.\n3\n(b) Examination of books-Employee shall have the right personally, or through an agent, but at his own expense, to examine the books\nand records of the Company for the purpose of determining the gross revenue.\n4. FACILITIES AND EXPENSES\n4.1 GENERAL\nThe Employee will work at his preferred location and will be directed by his efforts alone. In accordance with the Employer’s\nemployment policies, Employee will be reimbursed reasonable expenses incurred by the Employee, in appropriate entertainment activities, and for\nbusiness promotional expenses. The Employee must file expense reports with respect to such expenses in accordance with the Employer’s policies\nand approved by Michel Moreno.\n4.2 AUTOMOBILE\nThe Employer will pay the Employee an automobile allowance of $1,300.00 per month. The Employee will own his own automobile,\nand maintain and insure it at his own expense, for his business use in connection with his employment under this Agreement. The Employee will at\nhis own expense maintain liability insurance on any automobile used in connection with the Employer’s business, including excess liability\n(umbrella) insurance coverage in an amount not less than $1,000,000 per occurrence, with underlying insurance coverage as required by such excess\nliability insurance policy, and the Employee will furnish proof of such insurance to the Employer as requested by the Employer. The Employee will\nbe solely responsible for all automobile expenses, except for gas and oil expenses which will, with written proof of such expenses, be reimbursed to\nthe Employee by the Employer. All such oil and gas expenses submitted for reimbursement must be allocated by Employee between Employer, and\nany of Employer’s affiliated Employee may be employed by, and Employee will be responsible for all taxes applicable to the reimbursement of these\noil and gas expenses.\n5. VACATIONS AND HOLIDAYS\nThe Employee will be entitled to four (4) weeks’ paid vacation each Fiscal Year to be taken at times selected by him, with the prior notice to\nthe Company’s Members, and in accordance with the vacation policies of the Employer in effect for its Employee officers from time to time. The\nEmployee will also be entitled to the paid holidays set forth in the Employer’s policies.\n6. TERMINATION\n6.1 EVENTS OF TERMINATION\nThe Employment Period, the Employee’s Basic Compensation, and any and all other rights of the Employee under this Agreement or\notherwise as an employee of the Employer will terminate (except as otherwise provided in this Section 6):\n(a) upon the death of the Employee; or\n4\n(b) upon the disability of the Employee (as defined in Section 6.2) immediately upon notice from either party to the other;\n(c) for cause (as defined in Section 6.3), immediately upon notice from the Employer to the Employee, or at such later time as such\nnotice may specify;\n(d) by Employee without cause, immediately upon notice from Employee or at Employee’s later time as such notice may specify.\n6.2 DEFINITION OF DISABILITY\nFor purposes of Section 6.1, the Employee will be deemed to have a “disability” if, for physical or mental reasons, the Employee is\nunable to perform the essential functions of the Employee’s duties under this Agreement for 120 consecutive days, or 180 days during any twelve-\nmonth period, as determined in accordance with this Section 6.2 . The disability of the Employee will be determined by a medical doctor selected by\nwritten agreement of the Employer and the Employee upon the request of either party by notice to the other. If the Employer and the Employee\ncannot agree on the selection of a medical doctor, each of them will select a medical doctor and the two medical doctors will select a third medical\ndoctor who will determine whether the Employee has a disability. The determination of the medical doctor selected under this Section 6.2 will be\nbinding on both parties. The Employee must submit to a reasonable number of examinations by the medical doctor making the determination of\ndisability under this Section 6.2, and the Employee hereby authorizes the disclosure and release to the Employer of such determination and all\nsupporting medical records. If the Employee is not legally competent, the Employee’s legal guardian or duly authorized attorney-in-fact will act in\nthe Employee’s stead, under this Section 6.2, for the purposes of submitting the Employee to the examinations, and providing the authorization of\ndisclosure, required under this Section 6.2 .\n6.3 DEFINITION OF “FOR CAUSE”\nFor purposes of Section 6.1, the phrase “for cause” means: (a) the Employee’s material breach of this Agreement; (b) the Employee’s material\nfailure to adhere to any written Employer policy; (c) the appropriation (or attempted appropriation) of a material business opportunity of the\nEmployer, including attempting to secure or securing any personal profit in connection with any transaction entered into on behalf of the Employer;\n(d) the misappropriation (or attempted misappropriation) of any of the Employer’s funds, property, or opportunity; (e) the conviction of, the\nindictment for (or its procedural equivalent), or the entering of a guilty plea or plea of no contest with respect to a felony punishable by\nimprisonment; (f) Employee’s gross negligence in the performance of the duties and services required of the Employee pursuant to this Agreement\nthat has a material adverse effect on the Employer or any affiliate; or (g) it is found that a material representation or warranty made by the Employee\nin this Agreement was untrue at the time such representation or warranty was made.\n6.4 TERMINATION PAY\nEffective upon the termination of this Agreement, the Employer will be obligated to pay the Employee (or, in the event of his death, his\ndesignated beneficiary as defined below) only such compensation as is provided in this Section 6.4, and in lieu of all other amounts and in\n5\nsettlement and complete release of all claims the Employee may have against the Employer. For purposes of this Section 6.4, the Employee’s\ndesignated beneficiary will be such individual beneficiary or trust, located at such address, as the Employee may designate by notice to the\nEmployer. from time to time or, if the Employee fails to give notice to the Employer of such a beneficiary, the Employee’s estate. Notwithstanding\nthe preceding sentence, the Employer will have no duty, in any circumstances, to attempt to open an estate on behalf of the Employee, to determine\nwhether any beneficiary designated by the Employee is alive or to ascertain the address of any such beneficiary, to determine the existence of any\ntrust, to determine whether any person or entity purporting to act as the Employee’s personal representative (or the trustee of a trust established by\nthe Employee) is duly authorized to act in that capacity, or to locate or attempt to locate any beneficiary, personal representative, or trustee.\n(a) Termination by the Employer for Cause. If the Employer terminates this Agreement for cause, the Employee will be entitled to\nreceive his Salary only through the date this Agreement is effective.\n(b) Termination upon Disability. If this Agreement is terminated by either party as a result of the Employee’s disability, as determined\nunder Section 6.2, the Employer will continue to pay the Employee his Salary for the period of two months following this notice of termination\nless any disability insurance benefits received by Employee under the disability insurance coverage furnished by Employer.\n(c) Termination upon Death. If this Agreement is terminated because of the Employee’s death, the Employee will be entitled to receive\nhis Salary through the end of the calendar month in which his death occurs and one additional month.\n(d) Termination without cause. If this Agreement is terminated because without cause, the Employee will be entitled to receive his Salary\nas it becomes due for the remaining term of this Agreement. If the Employee terminates this Agreement, without cause, Employee will be\nentitled to his Salary only through the date such termination is effective.\n(e) If the Employee terminates this Agreement, Employee will be entitled to his Salary only through the date such termination is\neffective.\n(f) Benefits. The Employee’s accrual of, or participation in plans providing for, the Benefits will cease at the effective date of the\ntermination of this Agreement, and the Employee will be entitled to accrued Benefits pursuant to such plans only as provided in such plans.\nExcluding a termination without cause as provided in Section 6.4(d) and/or a resignation of employment by Employee, the Employee will not\nreceive, as part of his termination pay pursuant to this Section 6, any payment or other compensation for any vacation, holiday, sick leave, or\nother leave unused on the date the notice of termination is given under this Agreement.\n6\n7. NON -DISCLOSURE COVENANT\n7.1 ACKNOWLEDGMENTS BY THE EMPLOYEE\nThe Employee acknowledges that (a) during the Employment Period and as a part of his employment, the Employee will be afforded\naccess to Confidential Information; (b) public disclosure of such Confidential Information could have an adverse effect on the Employer and its\nbusiness; (c) because the Employee possesses substantial technical expertise and skill with respect to the Employer’s business; and (d) the provisions\nof this Section 7 are reasonable and necessary to prevent the improper use or disclosure of Confidential Information.\n7.2 AGREEMENTS OF THE EMPLOYEE\nIn consideration of the compensation and benefits to be paid or provided to the Employee by the Employer under this Agreement, the\nEmployee covenants as follows:\nConfidentiality.\n(i) During and for 2 years following the Employment Period, the Employee will hold in confidence the Confidential Information\nand will not disclose it to any person except with the specific prior written consent of the Employer or except as otherwise expressly\npermitted by the terms of this Agreement.\n(ii) Any trade secrets of the Employer will be entitled to all of the protections and benefits under the trade secret law of the States\nof Louisiana and any other applicable law. If any information that the Employer deems to be a trade secret is found by a court of\ncompetent jurisdiction not to be a trade secret for purposes of this Agreement, such information will, nevertheless, be considered\nConfidential Information for purposes of this Agreement. The Employee hereby waives any requirement that the Employer submit proof\nof the economic value of any trade secret or post a bond or other security.\n(iii) None of the foregoing obligations and restrictions applies to any part of the Confidential information that the Employee\ndemonstrates was or became generally available to the public other than as a result of a disclosure by the Employee.\n(iv) The Employee will not remove from the Employer’s premises (except to the extent such removal is necessary for purposes of\nthe performance of the Employee’s duties at home or while traveling, or except as otherwise specifically authorized by the Employer)\nany document, record, notebook, plan, model, component, device, or computer software or code, whether embodied in a disk or in any\nother form (collectively, the “PROPRIETARY ITEMS”). The Employee recognizes that, as between the Employer and the Employee, all\nof the Proprietary items, whether or not developed by the Employee, are the exclusive property of the Employer. Upon termination of\nthis Agreement by either party, or upon the request of the Employer during the Employment Period, the Employee will return to the\nEmployer all of the Proprietary items in the Employee’s possession or subject to the Employee’s control, and the Employee shall not\nretain any copies, abstracts, sketches, or other physical or electronic embodiment of any of the Proprietary items.\n7\n(v) All information, ideas, concepts, improvements, discoveries, and inventions, whether patentable or not, which are conceived,\nmade, developed or acquired by Employee, individually or in conjunction with others, during Employee’s employment by the Employer\n(whether’ during business hours or otherwise and whether on the Employer’s premises or otherwise) which relate to the Employer’s\nbusiness, products or services (including, without limitation, all such information relating to corporate opportunities, research, financial\nand sales data, pricing and trading terms, evaluations, opinions, interpretations, acquisition prospects, the identity of customers or their\nrequirements, the identity of key contacts within the customer’s organizations or within the organization of acquisition prospects, or\nmarketing and merchandising techniques, prospective names, and marks), and all writings or materials of any type embodying any of\nsuch items, will be the sole and exclusive property of the Employer.\n7.3 DISPUTES OR CONTROVERSIES\nThe Employee recognizes that should a dispute or controversy arising from or relating to this Agreement be submitted for adjudication to\nany court, arbitration panel, or other third party, the preservation of the secrecy of Confidential information may be jeopardized. All pleadings,\ndocuments, testimony, and records relating to any such adjudication will be maintained in secrecy and will be available for inspection by the\nEmployer, the Employee, and their respective attorneys and experts, who will agree, in advance and in writing, to receive and maintain all such\ninformation in secrecy, except as may be limited by them in writing.\n8. NON -COMPETITION AND NON-INTERFERENCE\n8.1 ACKNOWLEDGMENTS BY THE EMPLOYEE\nThe Employee acknowledges that: (a) the services to be performed by him under this Agreement are of a special, unique, unusual,\nextraordinary, and intellectual character; (b) the Employer’s business is regional in scope and its products are marketed throughout the States of\nLouisiana, Mississippi, Texas and offshore in the Gulf of Mexico; (c) the Employer competes with other businesses that are or could be located in\nany part of the States of Louisiana, Mississippi, or Texas and (d) the provisions of this Section 8 are reasonable and necessary to protect the\nEmployer’s business.\n8.2 COVENANTS OF THE EMPLOYEE\nIn consideration of the acknowledgments by the Employee, and in consideration of the compensation and benefits to be paid or provided\nto the Employee by the Employer, the Employee covenants that he will not, directly or indirectly:\n8\n(a) during the Employment Period, except in the course of his employment hereunder, and during the Post-Employment Period, engage\nor invest in, own, manage, operate, finance, control, or participate in the ownership, management, operation, financing, or control of, be\nemployed by, associated with, or in any manner connected with, lend the Employee’s name or any similar name to, lend Employee’s credit to\nor render services or advice to, any business that competes in whole or in part with the business of the Employer anywhere the Employer\nconducts business, and specifically within the States of Mississippi, Texas, the parishes of Louisiana described in Exhibit A attached hereto\nand offshore in the Gulf of Mexico; provided, however, that the Employee may purchase or otherwise acquire up to (but not more than) five\npercent of any class of securities of any enterprise (but without otherwise participating in the activities of such enterprise) if such securities are\nlisted on any national or regional securities exchange or have been registered under Section 12(g) of the Securities Exchange Act of 1934;\n(b) whether for the Employee’s own account or for the account of any other person, at any time during the Employment Period and the\nPost-Employment Period, solicit business of the same or similar type being carried on by the Employer, from any person known by the\nEmployee to be a customer of the Employer, whether or not the Employee had personal contact with such person during and by reason of the\nEmployee’s employment with the Employer;\n(c) whether for the Employee’s own account or the account of any other person (i) at any time during the Employment Period and the\nPost-Employment Period, solicit, employ, or otherwise engage as an employee, independent contractor, or otherwise, any person who is or was\nan employee of the Employer at any time during the Employment Period or in any manner induce or attempt to induce any employee of the\nEmployer to terminate his employment with the Employer; or (ii) at any time during the Employment Period and the Post-Employment Period\ninterfere with the Employer’s relationship with any person, including any person who at any time during the Employment Period was an\nemployee, contractor, supplier, or customer of the Employer; or\n(d) at any time during or after the Employment Period, disparage the Employer or any of its shareholders, directors, officers, employees,\nor agents.\nFor purposes of this Section 8.2, the term “Post-Employment Period” means the two year period beginning on the date of termination of the\nEmployee’s employment with the Employer.\nEmployee acknowledges and agrees that Employee, while employed by the Employer, owes a fiduciary duty of loyalty, fidelity and allegiance\nto act at all times in the best interest of the Employer, to do no act which would intentionally injure the Employer’s business, interests, or reputation.\nIn keeping with Employee’s fiduciary duties owed to the Employer, Employee agrees that Employee will not knowingly become involved in a\nconflict of interest with the Employer or its affiliates, or upon discovery thereof, allow such a conflict to continue.\n9\nIf any covenant in this Section 8.2 is held to be unreasonable, arbitrary, or against public policy, such covenant will be considered to be\ndivisible with respect to scope, time, and geographic area, and such lesser scope, time, or geographic area, or all of them, as a court of competent\njurisdiction may determine to be reasonable, not arbitrary, and not against public policy, will be effective, binding, and enforceable against the\nEmployee. Nevertheless, if any of the aforesaid restrictions are found by a court having jurisdiction to be unreasonable or overly broad as to\ngeographic area or time, or otherwise unenforceable, the parties intend for the restrictions herein set forth to be modified by such courts so as to be\nreasonable and enforceable and, as so modified to be fully enforced.\nThe Employee will, while the covenant under this Section 8.2 is in effect, give notice to the Employer, within ten days after accepting any\nother employment, of the identity of the Employee’s employer. The Buyer or the Employer may notify such employer that the Employee is bound by\nthis Agreement and, at the Employer’s election, furnish such employer with a copy of this Agreement or relevant portions thereof.\n9. GENERAL PROVISIONS\n9.1 INJUNCTIVE RELIEF AND ADDITIONAL REMEDY\nThe Employee acknowledges that the injury that would be suffered by the Employer as a result of a breach of the provisions of this\nAgreement (including but not limited to any provision of Sections 7 and 8) would be irreparable and that an award of monetary damages to the\nEmployer for such a breach would be an inadequate remedy. Consequently, the Employer will have the right, in addition to any other rights it may\nhave, to obtain injunctive relief to restrain any breach or threatened breach or otherwise to specifically enforce any provision of this Agreement and\nthe Employer will not be obligated to post bond or other security in seeking such relief. Without limiting the Employer’s rights under this Section 9\nor any other remedies of the Employer, if the Employee breaches any of the provisions of Section 7 or 8, the Employer will have the right to cease\nmaking any payments otherwise due to the Employee under this Agreement.\n9.2 COVENANTS OF SECTIONS 7 AND 8 ARE ESSENTIAL AND INDEPENDENT COVENANTS\nThe covenants by the Employee in Sections 7 and 8 are essential elements of this Agreement, and without the Employee’s agreement to\ncomply with such covenants, the Employer would not have entered into this Agreement or employed or continued the employment of the Employee.\nThe Employer and the Employee have independently consulted their respective counsel and have been advised in all respects concerning the\nreasonableness and propriety of such covenants, with specific regard to the nature of the business conducted by the Employer.\nThe Employee’s covenants in Sections 7 and 8 are independent covenants and the existence of any claim by the Employee against the\nEmployer under this Agreement or otherwise, or against the Buyer, will not excuse the Employee’s breach of any covenant in Section 7 or 8.\n10\nIf the Employee’s employment hereunder expires or is terminated, this Agreement will continue in full force and effect as is necessary or\nappropriate to enforce the covenants and agreements of the Employee in Sections 7 and 8.\n9.3 REPRESENTATIONS AND WARRANTIES BY THE EMPLOYEE\nThe Employee represents and warrants to the Employer that the execution and delivery by the Employee of this Agreement do not, and\nthe performance by the Employee of the Employee’s obligations hereunder will not, with or without the giving of notice or the passage of time, or\nboth: (a) violate any judgment, writ, injunction, or order of any court, arbitrator, or governmental agency applicable to the Employee; or (b) conflict\nwith, result in the breach of any provisions of or the termination of, or constitute a default under, any agreement to which the Employee is a party or\nby which the Employee is or may be bound.\n9.4 OBLIGATIONS CONTINGENT ON PERFORMANCE\nThe obligations of the Employer hereunder, including its obligations to pay the compensation provided for herein, are contingent upon\nthe Employee’s performance of all the Employee’s obligations hereunder.\n9.5 WAIVER\nThe rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by either\nparty in exercising any right, power, or privilege under this Agreement will operate as a waiver of such right, power, or privilege, and no single or\npartial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of\nany other right, power, or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be\ndischarged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no\nwaiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one\nparty will be deemed to be a waiver of any obligation of that party or of the right of the party giving the notice or demand to take further action\nwithout notice or demand as provided in this Agreement.\n9.6 BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED\nThis Agreement will inure to the benefit of, and will be binding upon, the parties hereto and their respective successors, assigns, heirs,\nand legal representatives, including any entity with which the Employer may merge or consolidate or to which all or substantially all of its assets\nmay be transferred. The duties and covenants of the Employee under this Agreement, being personal, may not be delegated.\n9.7 NOTICES\nAll notices, consents, waivers, and other communications under this Agreement must be in writing and will be deemed to have been duly\ngiven when (a) delivered by hand (with written confirmation of receipt), (b) sent by facsimile (with written confirmation of receipt),\n11\nprovided that a copy is mailed by registered mail, return receipt requested, or (c) when received by the addressee, if sent by a nationally recognized\novernight delivery service (receipt requested), in each case to the appropriate addresses and facsimile numbers set forth below (or to any other\naddresses and facsimile numbers as a party may designate by notice to the other parties):\nIf to Employer:\nHub City Industries, L.L .C.\n500 Dover Blvd., Suite 100\nLafayette, LA 70503\nAttention: Earl Blackwell\nWith a copy to:\nFrank S. Slavich, III\nBabineaux, Poche, Anthony & Slavich, LLC\n1201 Camellia Blvd., Suite 300\nLafayette, LA 70508\nIf to the Employee:\nJohn Egle\n112 East Peck Blvd.\nLafayette, LA 70508\nWith a copy to:\nCharles Rush, Esq.\n202 Magnate Drive\nLafayette, LA 70508\n9.8 INDEMNIFICATION OF EMPLOYEE\nThe Employer will defend, indemnify, and hold harmless Employee if Employee is made a party to a proceeding because he is a party to\nthis Agreement against liability incurred in the proceeding, if he:\n(a) conducted himself in good faith;\n(b) Reasonably believed that his conduct was in or at least not opposed to the Company’s best interest; and\n(c) In the case of any criminal proceeding, had no reasonable cause to believe his conduct was unlawful.\n9.9 ENTIRE AGREEMENT: AMENDMENTS\nThis Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersede all prior\nagreements and understandings, oral or written, between the parties hereto with respect to the subject matter hereof. This Agreement may not be\namended orally, but only by an agreement in writing signed by the parties this Agreement.\n12\n9.10 GOVERNING LAW\nThis Agreement will be governed by the laws of the State of Louisiana without regard to conflicts of laws principles.\n9.11 JURISDICTION\nAny action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement will be brought\nagainst either of the parties in the courts of the State of Louisiana, Parish of Lafayette, or if it has or can acquire jurisdiction, in the United States\nDistrict Court for the Western District of Louisiana, and each of the parties consents to the jurisdiction of such courts (and of the appropriate\nappellate courts) in any such action or proceeding and waives any objection to venue laid therein. Process in any action or proceeding referred to in\nthe preceding sentence may be served on either party anywhere in the world.\n9.12 SECTION HEADINGS, CONSTRUCTION\nThe headings of Sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All\nreferences to “Section” or “Sections” refer to the corresponding Section or Sections of this Agreement unless otherwise specified. All words used in\nthis Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word\n“including” does not limit the preceding words or terms.\n9.13 SEVERABILITY\nIf any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this\nAgreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in\nfull force and effect to the extent not held invalid or unenforceable.\n9.14 COUNTERPARTS\nThis Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement\nand all of which, when taken together, will be deemed to constitute one and the same agreement.\n9.15 ATTORNEY’S FEES\nIn the event that there is any controversy or claim arising out of or relating to this Agreement, or to the interpretation, breach or\nenforcement thereof, and any action or proceeding is commenced to enforce the provisions of this Agreement, the prevailing party shall be entitled to\na reasonable attorney’s fee, costs and expenses.\n9.16 JOINT DRAFTING\nThe parties have participated jointly in negotiating and drafting this Agreement. If a question of interpretation arises, this Agreement\nshall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of\nthe authorship of any provision of this Agreement.\n13\n9.17 WAIVE OF JURY TRIAL\nTHE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO\nTHIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS, WHETHER NOW EXISTING OR HEREAFTER ARISING,\nAND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. THE PARTIES AGREE THAT ANY OF THEM MAY FILE A COPY\nOF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR\nAGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE TRIAL BY JURY AND THAT ANY PROCEEDING WHATSOEVER\nBETWEEN THEM RELATING TO THIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS SHALL INSTEAD BE\nTRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.\n9.18 TERMINATION OF PRIOR EMPLOYEMENT AGREEMENT\nThis Agreement hereby supersedes and replaces that certain Amended and Restated Employment, Non-Disclosure, and Non-Compete\nAgreement dated January 15, 2009 (the “Original Agreement”). The parties acknowledge and agree that the Original Agreement is terminated as of\nthe Effective Date of this Agreement.\nIN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date above first written above.\nEMPLOYER:\nHUB CITY INDUSTRIES, L.L.C\nBy: /s/ Michel B. Moreno\nName: Michel B. Moreno\nTitle: Managing Manger\nEMPLOYEE:\n/s/ John M. Egle\nJOHN M. EGLE\n14\nEXHIBIT A\nLOUISIANA PARISHES\nAcadia\nAllen\nAscension\nAssumption\nAvoyelles\nBeauregard\nBienville\nBossier\nCaddo\nCalcasieu\nCaldwell\nCameron\nCatahoula\nClaiborne\nConcordia\nDeSoto\nEast Baton Rouge\nEast Carroll\nEast Feliciana\nEvangeline\nFranklin\nGrant\nIberia\nIberville\nJackson\nJefferson\nJefferson Davis\nLafayette\nLafourche\nLaSalle\nLincoln\nLivingston\nMadison\nMorehouse\nNatchitoches\nOrleans\nOuachita\nPlaquemines\nPointe Coupee\nRapides\nRed River\nRichland\nSabine\nSt. Bernard\nSt. Charles\nSt. Helena\nSt. James\nSt. John the Baptist\nSt. Landry\nSt. Martin\nSt. Mary\nSt. Tammany\nTangipahoa\nTensas\nTerrebonne\nUnion\nVermillion\nVernon\nWashington\nWebster\nWest Baton Rouge\nWest Carroll\nWest Feliciana\nWinn\n15	EX-10.5 15 d349756dex105.htm SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT - JOHN\nM. EGLE\nExhibit 10.5\nSECOND AMENDED & RESTATED EMPLOYMENT,\nNON-DISCLOSURE, AND NON-COMPETE AGREEMENT\nThis Second Amended & Restated Employment, Non-Disclosure, and Non-Compete Agreement (this “AGREEMENT”) is made effective as of\nMay 1, 2011, by Hub City Industries, L.L.C., a Louisiana liability company (the “EMPLOYER”), and John M. Egle, an individual resident in\nLafayette, Louisiana (the “EMPLOYEE”).\nRECITALS\nThe Employer desires the Employee’s continued employment with the Employer, and the Employee wishes to accept such continued\nemployment, upon the terms and conditions set forth in this Agreement.\nAGREEMENT\nThe parties, intending to be legally bound, agree as follows:\n1. DEFINITIONS\nFor the purposes of this Agreement, the following terms have the meanings specified or referred to in this Section 1.\n“AGREEMENT”—this Employment, Non-Disclosure, and Non-Competition Agreement, as amended from time to time.\n“BASIC COMPENSATION”—Salary and Benefits.\n“BENEFITS”—as defined in Section 3.1(b).\n“CONFIDENTIAL INFORMATION”—any and all:\n(a) trade secrets concerning the business and affairs of the Employer, product specifications, data, know-how, formulae, compositions,\nprocesses, designs, sketches, photographs, graphs, drawings, samples, inventions and ideas, past, current, and planned research and\ndevelopment, current and planned manufacturing or distribution methods and processes, customer lists, current and anticipated customer\nrequirements, price lists, market studies, business plans, computer software and programs (including object code and source code), computer\nsoftware and database technologies, systems, structures, and architectures (and related formulae, compositions, processes, improvements,\ndevices, know-how, inventions, discoveries, concepts, ideas, designs, methods and information) and any other information, however\ndocumented, that is a trade secret within the meaning of trade secret laws of the State of Louisiana;\n(b) information concerning the business and affairs of the Employer (which includes historical financial statements, financial projections\nand budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds of key personnel, personnel\ntraining and techniques and materials); and\n(c) notes, analysis, compilations, studies, summaries, and other material prepared by or for the Employer containing or based, in whole or\nin part, on any information included in the foregoing.\n“DISABILITY”—as defined in Section 6.2.\n“EFFECTIVE DATE”—the date stated in the first paragraph of the Agreement.\n“EMPLOYMENT PERIOD”—the term of the Executive’s employment under this Agreement.\n“FISCAL YEAR”—the Employer’s fiscal year, as it exists on the Effective Date or as changed from time to time.\n“FOR CAUSE”—as defined in Section 6.3.\n“PERSON”—any individual, corporation (including any non-profit corporation), general or limited partnership, limited liability company, joint\nventure, estate, trust, association, organization, or governmental body.\n“POST-EMPLOYMENT PERIOD”—as defined in Section 8.2.\n“PROPRIETARY ITEMS”—as defined in Section 7.2(a)(iv).\n“SALARY”—as defined in Section 3.1(a).\nEMPLOYMENT TERMS AND DUTIES\n2.1 EMPLOYMENT\nThe Employer hereby employs the Employee, and the Employee hereby accepts employment by the Employer, upon the terms and conditions\nset forth in this Agreement. 22 TERM\nSubject to the provisions of Section 6, the term of the Employee’s employment under this Agreement will be 2 years, beginning on the 1st day\nof May 2011 and ending on April 30, 2012. The 2nd year of the Agreement is conditioned upon the Employee booking International sales in excess of one million ($1,000,000) dollars, within the 1st year of the Agreement. Upon agreement of the Employer and Employee, the terms of this Agreement may be extended beyond the initial term until terminated for cause or until terminated as otherwise provided in this Agreement. 2\n2.3 DUTIES\nThe Employee will initially serve as the Special Assistant to Michel Moreno, and may sometimes also be referred to as the “Market Advisor”\nof the Employer. The Employee will use his best efforts to promote the success of the Employer’s business, and will cooperate fully with the other\nemployees in the advancement of the best interests of Employer. Employee will expand the business opportunities of the Employer, including, but\nnot limited to, increasing revenues and earnings of the Employer. Nothing in this Section 2.3, however, will prevent the Employee from engaging in\nadditional activities in connection with personal investments and community affairs that are not inconsistent with Employee’s duties under this\nAgreement.\n3. COMPENSATION\n3.1 BASIC COMPENSATION\n(a) Salary. The Employee will be paid an annual salary of $244,000.00, subject to adjustment as provided below (the “SALARY”), which\nwill be payable in equal periodic installments according to the Employer’s customary payroll practices, but no less frequently than monthly.\nThe Salary will be reviewed by the Michel Moreno not less frequently than annually, and may not be adjusted downward.\n(b) Benefits. The Employee will, during the Employment Period, be permitted to participate in the pension, profit sharing, bonus, life\ninsurance, hospitalization, major medical, and other employee benefit plans of the Employer that may be in effect from time to time, to the\nextent the Employee is eligible under the terms of those plans (collectively, the “BENEFITS”). The Employer shall not by reason of this\nSection 3 be obligated to institute, maintain, or refrain from changing, amending, or discontinuing, any employee benefit program or plan, so\nlong as such actions are similarly applicable to covered employees generally. The Employer will pay 100% of Employee’s group health and\ndisability insurance premiums as maintained by the Employer.\n(c) The Employer may withhold from the Salary, incentive compensation, and any other compensation, benefits, or amounts payable\nunder this Agreement all federal, state, city, or other taxes as may be required pursuant to any law or governmental regulation or ruling.\n3.2 INCENTIVE COMPENSATION\n(a) The Employee will be entitled to receive 3% to 5%, (percentage to be jointly determined by Employer and Employee), of revenue\ndirectly generated from international sales by Employee for the Company. Gross Revenue as used herein shall be based upon billings made by\nthe Company and compensation predicated thereon shall be paid irrespective of the date of payment to the Company. Employee shall receive\ncompensation upon revenue generated during the term of this Agreement but billed thereafter. Cash and trade discounts shall not be deducted\nfrom the gross selling price.\n(b) Examination of books-Employee shall have the right personally, or through an agent, but at his own expense, to examine the books\nand records of the Company for the purpose of determining the gross revenue.\n4. FACILITIES AND EXPENSES\n4.1 GENERAL\nThe Employee will work at his preferred location and will be directed by his efforts alone. In accordance with the Employer’s\nemployment policies, Employee will be reimbursed reasonable expenses incurred by the Employee, in appropriate entertainment activities, and for\nbusiness promotional expenses. The Employee must file expense reports with respect to such expenses in accordance with the Employer’s policies\nand approved by Michel Moreno.\n4.2 AUTOMOBILE\nThe Employer will pay the Employee an automobile allowance of $1,300.00 per month. The Employee will own his own automobile,\nand maintain and insure it at his own expense, for his business use in connection with his employment under this Agreement. The Employee will at\nhis own expense maintain liability insurance on any automobile used in connection with the Employer’s business, including excess liability\n(umbrella) insurance coverage in an amount not less than $1,000,000 per occurrence, with underlying insurance coverage as required by such excess\nliability insurance policy, and the Employee will furnish proof of such insurance to the Employer as requested by the Employer. The Employee will\nbe solely responsible for all automobile expenses, except for gas and oil expenses which will, with written proof of such expenses, be reimbursed to\nthe Employee by the Employer. All such oil and gas expenses submitted for reimbursement must be allocated by Employee between Employer, and\nany of Employer’s affiliated Employee may be employed by, and Employee will be responsible for all taxes applicable to the reimbursement of these\noil and gas expenses.\n5. VACATIONS AND HOLIDAYS\nThe Employee will be entitled to four (4) weeks’ paid vacation each Fiscal Year to be taken at times selected by him, with the prior notice to\nthe Company’s Members, and in accordance with the vacation policies of the Employer in effect for its Employee officers from time to time. The\nEmployee will also be entitled to the paid holidays set forth in the Employer’s policies.\n6. TERMINATION\n6.1 EVENTS OF TERMINATION\nThe Employment Period, the Employee’s Basic Compensation, and any and all other rights of the Employee under this Agreement or\notherwise as an employee of the Employer will terminate (except as otherwise provided in this Section 6):\n(a) upon the death of the Employee; or\n(b) upon the disability of the Employee (as defined in Section 6.2) immediately upon notice from either party to the other;\n(c) for cause (as defined in Section 6.3), immediately upon notice from the Employer to the Employee, or at such later time as such\nnotice may specify;\n(d) by Employee without cause, immediately upon notice from Employee or at Employee’s later time as such notice may specify.\n6.2 DEFINITION OF DISABILITY\nFor purposes of Section 6.1, the Employee will be deemed to have a “disability” if, for physical or mental reasons, the Employee is\nunable to perform the essential functions of the Employee’s duties under this Agreement for 120 consecutive days, or 180 days during any twelve-\nmonth period, as determined in accordance with this Section 6.2. The disability of the Employee will be determined by a medical doctor selected by\nwritten agreement of the Employer and the Employee upon the request of either party by notice to the other. If the Employer and the Employee\ncannot agree on the selection of a medical doctor, each of them will select a medical doctor and the two medical doctors will select a third medical\ndoctor who will determine whether the Employee has a disability. The determination of the medical doctor selected under this Section 6.2 will be\nbinding on both parties. The Employee must submit to a reasonable number of examinations by the medical doctor making the determination of\ndisability under this Section 6.2, and the Employee hereby authorizes the disclosure and release to the Employer of such determination and all\nsupporting medical records. If the Employee is not legally competent, the Employee’s legal guardian or duly authorized attorney-in-fact will act in\nthe Employee’s stead, under this Section 6.2, for the purposes of submitting the Employee to the examinations, and providing the authorization of\ndisclosure, required under this Section 6.2.\n6.3 DEFINITION OF “FOR CAUSE”\nFor purposes of Section 6.1, the phrase “for cause” means: (a) the Employee’s material breach of this Agreement; (b) the Employee’s material\nfailure to adhere to any written Employer policy; (c) the appropriation (or attempted appropriation) of a material business opportunity of the\nEmployer, including attempting to secure or securing any personal profit in connection with any transaction entered into on behalf of the Employer;\n(d) the misappropriation (or attempted misappropriation) of any of the Employer’s funds, property, or opportunity; (e) the conviction of, the\nindictment for (or its procedural equivalent), or the entering of a guilty plea or plea of no contest with respect to a felony punishable by\nimprisonment; (f) Employee’s gross negligence in the performance of the duties and services required of the Employee pursuant to this Agreement\nthat has a material adverse effect on the Employer or any affiliate; or (g) it is found that a material representation or warranty made by the Employee\nin this Agreement was untrue at the time such representation or warranty was made.\n6.4 TERMINATION PAY\nEffective upon the termination of this Agreement, the Employer will be obligated to pay the Employee (or, in the event of his death, his\ndesignated beneficiary as defined below) only such compensation as is provided in this Section 6.4, and in lieu of all other amounts and in\n5\nsettlement and complete release of all claims the Employee may have against the Employer. For purposes of this Section 6.4, the Employee’s\ndesignated beneficiary will be such individual beneficiary or trust, located at such address, as the Employee may designate by notice to the\nEmployer. from time to time or, if the Employee fails to give notice to the Employer of such a beneficiary, the Employee’s estate. Notwithstanding\nthe preceding sentence, the Employer will have no duty, in any circumstances, to attempt to open an estate on behalf of the Employee, to determine\nwhether any beneficiary designated by the Employee is alive or to ascertain the address of any such beneficiary, to determine the existence of any\ntrust, to determine whether any person or entity purporting to act as the Employee’s personal representative (or the trustee of a trust established by\nthe Employee) is duly authorized to act in that capacity, or to locate or attempt to locate any beneficiary, personal representative, or trustee.\n(a) Termination by the Employer for Cause. If the Employer terminates this Agreement for cause, the Employee will be entitled to\nreceive his Salary only through the date this Agreement is effective.\n(b) Termination upon Disability. If this Agreement is terminated by either party as a result of the Employee’s disability, as determined\nunder Section 6.2, the Employer will continue to pay the Employee his Salary for the period of two months following this notice of termination\nless any disability insurance benefits received by Employee under the disability insurance coverage furnished by Employer.\n(c) Termination upon Death. If this Agreement is terminated because of the Employee’s death, the Employee will be entitled to receive\nhis Salary through the end of the calendar month in which his death occurs and one additional month.\n(d) Termination without cause. If this Agreement is terminated because without cause, the Employee will be entitled to receive his Salary\nas it becomes due for the remaining term of this Agreement. If the Employee terminates this Agreement, without cause, Employee will be\nentitled to his Salary only through the date such termination is effective.\n(e) If the Employee terminates this Agreement, Employee will be entitled to his Salary only through the date such termination is\neffective.\n(f) Benefits. The Employee’s accrual of, or participation in plans providing for, the Benefits will cease at the effective date of the\ntermination of this Agreement, and the Employee will be entitled to accrued Benefits pursuant to such plans only as provided in such plans.\nExcluding a termination without cause as provided in Section 6.4(d) and/or a resignation of employment by Employee, the Employee will not\nreceive, as part of his termination pay pursuant to this Section 6, any payment or other compensation for any vacation, holiday, sick leave, or\nother leave unused on the date the notice of termination is given under this Agreement.\n \n6\n7. NON-DISCLOSURE COVENANT\n7.1 ACKNOWLEDGMENTS BY THE EMPLOYEE\nThe Employee acknowledges that (a) during the Employment Period and as a part of his employment, the Employee will be afforded\naccess to Confidential Information; (b) public disclosure of such Confidential Information could have an adverse effect on the Employer and its\nbusiness; (c) because the Employee possesses substantial technical expertise and skill with respect to the Employer’s business; and (d) the provisions\nof this Section 7 are reasonable and necessary to prevent the improper use or disclosure of Confidential Information.\n7.2 AGREEMENTS OF THE EMPL.OYEE\nIn consideration of the compensation and benefits to be paid or provided to the Employee by the Employer under this Agreement, the\nEmployee covenants as follows:\nConfidentiality.\n(i) During and for 2 years following the Employment Period, the Employee will hold in confidence the Confidential Information\nand will not disclose it to any person except with the specific prior written consent of the Employer or except as otherwise expressly\npermitted by the terms of this Agreement.\n(ii) Any trade secrets of the Employer will be entitled to all of the protections and benefits under the trade secret law of the States\nof Louisiana and any other applicable law. If any information that the Employer deems to be a trade secret is found by a court of\ncompetent jurisdiction not to be a trade secret for purposes of this Agreement, such information will, nevertheless, be considered\nConfidential Information for purposes of this Agreement. The Employee hereby waives any requirement that the Employer submit proof\nof the economic value of any trade secret or post a bond or other security.\n(iii) None of the foregoing obligations and restrictions applies to any part of the Confidential information that the Employee\ndemonstrates was or became generally available to the public other than as a result of a disclosure by the Employee.\n(iv) The Employee will not remove from the Employer’s premises (except to the extent such removal is necessary for purposes of\nthe performance of the Employee’s duties at home or while traveling, or except as otherwise specifically authorized by the Employer)\nany document, record, notebook, plan, model, component, device, or computer software or code, whether embodied in a disk or in any\nother form (collectively, the “PROPRIETARY ITEMS”). The Employee recognizes that, as between the Employer and the Employee, all\nof the Proprietary items, whether or not developed by the Employee, are the exclusive property of the Employer. Upon termination of\nthis Agreement by either party, or upon the request of the Employer during the Employment Period, the Employee will return to the\nEmployer all of the Proprietary items in the Employee’s possession or subject to the Employee’s control, and the Employee shall not\nretain any copies, abstracts, sketches, or other physical or electronic embodiment of any of the Proprietary items.\n7\n(v) All information, ideas, concepts, improvements, discoveries, and inventions, whether patentable or not, which are conceived,\nmade, developed or acquired by Employee, individually or in conjunction with others, during Employee’s employment by the Employer\n(whether’ during business hours or otherwise and whether on the Employer’s premises or otherwise) which relate to the Employer’s\nbusiness, products or services (including, without limitation, all such information relating to corporate opportunities, research, financial\nand sales data, pricing and trading terms, evaluations, opinions, interpretations, acquisition prospects, the identity of customers or their\nrequirements, the identity of key contacts within the customer’s organizations or within the organization of acquisition prospects, or\nmarketing and merchandising techniques, prospective names, and marks), and all writings or materials of any type embodying any of\nsuch items, will be the sole and exclusive property of the Employer.\n7.3 DISPUTES OR CONTROVERSIES\nThe Employee recognizes that should a dispute or controversy arising from or relating to this Agreement be submitted for adjudication to\nany court, arbitration panel, or other third party, the preservation of the secrecy of Confidential information may be jeopardized. All pleadings,\ndocuments, testimony, and records relating to any such adjudication will be maintained in secrecy and will be available for inspection by the\nEmployer, the Employee, and their respective attorneys and experts, who will agree, in advance and in writing, to receive and maintain all such\ninformation in secrecy, except as may be limited by them in writing.\n8. NON-COMPETITION AND NON-INTERFERENCE\n8.1 ACKNOWLEDGMENTS BY THE EMPL.OYEE\nThe Employee acknowledges that: (a) the services to be performed by him under this Agreement are of a special, unique, unusual,\nextraordinary, and intellectual character; (b) the Employer’s business is regional in scope and its products are marketed throughout the States of\nLouisiana, Mississippi, Texas and offshore in the Gulf of Mexico; (c) the Employer competes with other businesses that are or could be located in\nany part of the States of Louisiana, Mississippi, or Texas and (d) the provisions of this Section 8 are reasonable and necessary to protect the\nEmployer’s business.\n8.2 COVENANTS OF THE EMPLOYEE\nIn consideration of the acknowledgments by the Employee, and in consideration of the compensation and benefits to be paid or provided\nto the Employee by the Employer, the Employee covenants that he will not, directly or indirectly:\n8\n(a) during the Employment Period, except in the course of his employment hereunder, and during the Post-Employment Period, engage\nor invest in, own, manage, operate, finance, control, or participate in the ownership, management, operation, financing, or control of, be\nemployed by, associated with, or in any manner connected with, lend the Employee’s name or any similar name to, lend Employee’s credit to\nor render services or advice to, any business that competes in whole or in part with the business of the Employer anywhere the Employer\nconducts business, and specifically within the States of Mississippi, Texas, the parishes of Louisiana described in Exhibit A attached hereto\nand offshore in the Gulf of Mexico; provided, however, that the Employee may purchase or otherwise acquire up to (but not more than) five\npercent of any class of securities of any enterprise (but without otherwise participating in the activities of such enterprise) if such securities are\nlisted on any national or regional securities exchange or have been registered under Section 12(g) of the Securities Exchange Act of 1934;\n(b) whether for the Employee’s own account or for the account of any other person, at any time during the Employment Period and the\nPost-Employment Period, solicit business of the same or similar type being carried on by the Employer, from any person known by the\nEmployee to be a customer of the Employer, whether or not the Employee had personal contact with such person during and by reason of the\nEmployee’s employment with the Employer;\n(c) whether for the Employee’s own account or the account of any other person (i) at any time during the Employment Period and the\nPost-Employment Period, solicit, employ, or otherwise engage as an employee, independent contractor, or otherwise, any person who is or was\nan employee of the Employer at any time during the Employment Period or in any manner induce or attempt to induce any employee of the\nEmployer to terminate his employment with the Employer; or (ii) at any time during the Employment Period and the Post-Employment Period\ninterfere with the Employer’s relationship with any person, including any person who at any time during the Employment Period was an\nemployee, contractor, supplier, or customer of the Employer; or\n(d) at any time during or after the Employment Period, disparage the Employer or any of its shareholders, directors, officers, employees,\nor agents.\nFor purposes of this Section 8.2, the term “Post-Employment Period” means the two year period beginning on the date of termination of the Employee’s employment with the Employer. Employee acknowledges and agrees that Employee, while employed by the Employer, owes a fiduciary duty of loyalty, fidelity and allegiance\nto act at all times in the best interest of the Employer, to do no act which would intentionally injure the Employer’s business, interests, or reputation. In keeping with Employee’s fiduciary duties owed to the Employer, Employee agrees that Employee will not knowingly become involved in a conflict of interest with the Employer or its affiliates, or upon discovery thereof, allow such a conflict to continue. 9\nIf any covenant in this Section 8.2 is held to be unreasonable, arbitrary, or against public policy, such covenant will be considered to be\ndivisible with respect to scope, time, and geographic area, and such lesser scope, time, or geographic area, or all of them, as a court of competent\njurisdiction may determine to be reasonable, not arbitrary, and not against public policy, will be effective, binding, and enforceable against the\nEmployee. Nevertheless, if any of the aforesaid restrictions are found by a court having jurisdiction to be unreasonable or overly broad as to\ngeographic area or time, or otherwise unenforceable, the parties intend for the restrictions herein set forth to be modified by such courts so as to be\nreasonable and enforceable and, as so modified to be fully enforced.\nThe Employee will, while the covenant under this Section 8.2 is in effect, give notice to the Employer, within ten days after accepting any\nother employment, of the identity of the Employee’s employer. The Buyer or the Employer may notify such employer that the Employee is bound by\nthis Agreement and, at the Employer’s election, furnish such employer with a copy of this Agreement or relevant portions thereof.\n9. GENERAL PROVISIONS\n9.1 INJUNCTIVE RELIEF AND ADDITIONAL REMEDY\nThe Employee acknowledges that the injury that would be suffered by the Employer as a result of a breach of the provisions of this\nAgreement (including but not limited to any provision of Sections 7 and 8) would be irreparable and that an award of monetary damages to the\nEmployer for such a breach would be an inadequate remedy. Consequently, the Employer will have the right, in addition to any other rights it may\nhave, to obtain injunctive relief to restrain any breach or threatened breach or otherwise to specifically enforce any provision of this Agreement and\nthe Employer will not be obligated to post bond or other security in seeking such relief. Without limiting the Employer’s rights under this Section 9\nor any other remedies of the Employer, if the Employee breaches any of the provisions of Section 7 or 8, the Employer will have the right to cease\nmaking any payments otherwise due to the Employee under this Agreement.\n9.2 COVENANTS OF SECTIONS 7 AND 8§ ARE ESSENTIAL AND INDEPENDENT COVENANTS\nThe covenants by the Employee in Sections 7 and 8 are essential elements of this Agreement, and without the Employee’s agreement to\ncomply with such covenants, the Employer would not have entered into this Agreement or employed or continued the employment of the Employee.\nThe Employer and the Employee have independently consulted their respective counsel and have been advised in all respects concerning the\nreasonableness and propriety of such covenants, with specific regard to the nature of the business conducted by the Employer.\nThe Employee’s covenants in Sections 7 and 8 are independent covenants and the existence of any claim by the Employee against the\nEmployer under this Agreement or otherwise, or against the Buyer, will not excuse the Employee’s breach of any covenant in Section 7 or 8.\n10\nIf the Employee’s employment hereunder expires or is terminated, this Agreement will continue in full force and effect as is necessary or\nappropriate to enforce the covenants and agreements of the Employee in Sections 7 and 8.\n9.3 REPRESENTATIONS AND WARRANTIES BY THE EMPLOYEE\nThe Employee represents and warrants to the Employer that the execution and delivery by the Employee of this Agreement do not, and\nthe performance by the Employee of the Employee’s obligations hereunder will not, with or without the giving of notice or the passage of time, or\nboth: (a) violate any judgment, writ, injunction, or order of any court, arbitrator, or governmental agency applicable to the Employee; or (b) conflict\nwith, result in the breach of any provisions of or the termination of, or constitute a default under, any agreement to which the Employee is a party or\nby which the Employee is or may be bound.\n9.4 OBLIGATIONS CONTINGENT ON PERFORMANCE\nThe obligations of the Employer hereunder, including its obligations to pay the compensation provided for herein, are contingent upon\nthe Employee’s performance of all the Employee’s obligations hereunder.\n9.5 WAIVER\nThe rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by either\nparty in exercising any right, power, or privilege under this Agreement will operate as a waiver of such right, power, or privilege, and no single or\npartial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of\nany other right, power, or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be\ndischarged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no\nwaiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one\nparty will be deemed to be a waiver of any obligation of that party or of the right of the party giving the notice or demand to take further action\nwithout notice or demand as provided in this Agreement.\n9.6 BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED\nThis Agreement will inure to the benefit of, and will be binding upon, the parties hereto and their respective successors, assigns, heirs,\nand legal representatives, including any entity with which the Employer may merge or consolidate or to which all or substantially all of its assets\nmay be transferred. The duties and covenants of the Employee under this Agreement, being personal, may not be delegated.\n9.7 NOTICES\nAll notices, consents, waivers, and other communications under this Agreement must be in writing and will be deemed to have been duly\ngiven when (a) delivered by hand (with written confirmation of receipt), (b) sent by facsimile (with written confirmation of receipt),\n11\nprovided that a copy is mailed by registered mail, return receipt requested, or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and facsimile numbers set forth below (or to any other addresses and facsimile numbers as a party may designate by notice to the other parties): If to Employer:\nWith a copy to:\nIf to the Employee:\nWith a copy to:\n9.8 INDEMNIFICATION OF EMPL.OYEE Hub City Industries, L.L.C.\n500 Dover Blvd., Suite 100\nLafayette, LA 70503\nAttention: Earl Blackwell\nFrank S. Slavich, III\nBabineaux, Poche, Anthony & Slavich, LLC\n1201 Camellia Blvd., Suite 300\nLafayette, LA 70508\nJohn Egle\n112 East Peck Blvd.\nLafayette, LA 70508\nCharles Rush, Esq.\n202 Magnate Drive\nLafayette, LA 70508\nThe Employer will defend, indemnify, and hold harmless Employee if Employee is made a party to a proceeding because he is a party to this Agreement against liability incurred in the proceeding, if he: (a) conducted himself in good faith; (b) Reasonably believed that his conduct was in or at least not opposed to the Company’s best interest; and (c) In the case of any criminal proceeding, had no reasonable cause to believe his conduct was unlawful. 9.9 ENTIRE AGREEMENT: AMENDMENTS This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, oral or written, between the parties hereto with respect to the subject matter hereof. This Agreement may not be amended orally, but only by an agreement in writing signed by the parties this Agreement. 12\n9.10 GOVERNING LAW\nThis Agreement will be governed by the laws of the State of Louisiana without regard to conflicts of laws principles.\n9.11 JURISDICTION\nAny action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement will be brought\nagainst either of the parties in the courts of the State of Louisiana, Parish of Lafayette, or if it has or can acquire jurisdiction, in the United States\nDistrict Court for the Western District of Louisiana, and each of the parties consents to the jurisdiction of such courts (and of the appropriate\nappellate courts) in any such action or proceeding and waives any objection to venue laid therein. Process in any action or proceeding referred to in\nthe preceding sentence may be served on either party anywhere in the world.\n9.12 SECTION HEADINGS, CONSTRUCTION\nThe headings of Sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All\nreferences to “Section” or “Sections” refer to the corresponding Section or Sections of this Agreement unless otherwise specified. All words used in\nthis Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word\n“including” does not limit the preceding words or terms.\n9.13 SEVERABILITY\nIf any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this\nAgreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in\nfull force and effect to the extent not held invalid or unenforceable.\n9.14 COUNTERPARTS\nThis Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement\nand all of which, when taken together, will be deemed to constitute one and the same agreement.\n9.15 ATTORNEY’S FEES\nIn the event that there is any controversy or claim arising out of or relating to this Agreement, or to the interpretation, breach or\nenforcement thereof, and any action or proceeding is commenced to enforce the provisions of this Agreement, the prevailing party shall be entitled to\na reasonable attorney’s fee, costs and expenses.\n9.16 JOINT DRAFTING\nThe parties have participated jointly in negotiating and drafting this Agreement. If a question of interpretation arises, this Agreement\nshall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of\nthe authorship of any provision of this Agreement.\n13\n9.17 WAIVE OF JURY TRIAL\nTHE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO\nTHIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS, WHETHER NOW EXISTING OR HEREAFTER ARISING,\nAND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. THE PARTIES AGREE THAT ANY OF THEM MAY FILE A COPY\nOF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR\nAGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE TRIAL BY JURY AND THAT ANY PROCEEDING WHATSOEVER\nBETWEEN THEM RELATING TO THIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS SHALL INSTEAD BE\nTRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.\n9.18 TERMINATION OF PRIOR EMPLOYEMENT AGREEMENT\nThis Agreement hereby supersedes and replaces that certain Amended and Restated Employment, Non-Disclosure, and Non-Compete\nAgreement dated January 15, 2009 (the “Original Agreement”). The parties acknowledge and agree that the Original Agreement is terminated as of\nthe Effective Date of this Agreement.\nIN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date above first written above.\nEMPLOYER: HUB CITY INDUSTRIES, L.L.C\nBy: /s/ Michel B. Moreno\nName: Michel B. Moreno\nTitle: Managing Manger\nEMPLOYEE: /s/ John M. Egle\nJOHN M. EGLE\n14\nAcadia\nAllen\nAscension\nAssumption\nAvoyelles\nBeauregard\nBienville\nBossier\nCaddo\nCalcasieu\nCaldwell\nCameron\nCatahoula\nClaiborne\nConcordia\nDeSoto\nEast Baton Rouge\nEast Carroll\nEast Feliciana\nEvangeline\nFranklin\nGrant\nIberia\nIberville\nJackson\nJefferson\nJefferson Davis\nLafayette\nLafourche\nLaSalle\nLincoln\nLivingston\nEXHIBIT A\nLOUISIANA PARISHES\n15\nMadison\nMorehouse\nNatchitoches\nOrleans\nOuachita\nPlaquemines\nPointe Coupee\nRapides\nRed River\nRichland\nSabine\nSt. Bernard\nSt. Charles\nSt. Helena\nSt. James\nSt. John the Baptist\nSt. Landry\nSt. Martin\nSt. Mary\nSt. Tammany\nTangipahoa\nTensas\nTerrebonne\nUnion\nVermillion\nVernon\nWashington\nWebster\nWest Baton Rouge\nWest Carroll\nWest Feliciana\nWinn	EX-10.5 15 d349756dex105.htn SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT - JOHN\nM. EGLE\nExhibit 10.5\nSECOND AMENDED & RESTATED EMPLOYMENT,\nNON-DISCLOSURE, AND NON-COMPETE AGREEMENT\nThis Second Amended & Restated Employment, Non-Disclosure, and Non-Compete Agreement (this "AGREEMENT") is made effective as of\nMay 1, 2011, by Hub City Industries, L.L.C., a Louisiana liability company (the "EMPLOYER"), and John M. Egle, an individual resident in\nLafayette, Louisiana (the "EMPLOYEE").\nRECITALS\nThe Employer desires the Employee's continued employment with the Employer, and the Employee wishes to accept such continued\nemployment, upon the terms and conditions set forth in this Agreement.\nAGREEMENT\nThe parties, intending to be legally bound, agree as follows:\n1. DEFINITIONS\nFor the purposes of this Agreement, the following terms have the meanings specified or referred to in this Section 1.\n"AGREEMENT"-th Employment, Non-Disclosure, and Non-Competition Agreement, as amended from time to time.\n"BAsIC COMPENSATION"-Salary and Benefits.\n"BENEFITS"-aS defined in Section 3.1(b).\n"CONFIDENTIAL INFORMATION"- and all:\n(a) trade secrets concerning the business and affairs of the Employer, product specifications, data, know-how, formulae, compositions,\nprocesses, designs, sketches, photographs, graphs, drawings, samples, inventions and ideas, past, current, and planned research and\ndevelopment, current and planned manufacturing or distribution methods and processes, customer lists, current and anticipated customer\nrequirements, price lists, market studies, business plans, computer software and programs (including object code and source code), computer\nsoftware and database technologies, systems, structures, and architectures (and related formulae, compositions, processes, improvements,\ndevices, know-how, inventions, discoveries, concepts, ideas, designs, methods and information) and any other information, however\ndocumented, that is a trade secret within the meaning of trade secret laws of the State of Louisiana;\n(b) information concerning the business and affairs of the Employer (which includes historical financial statements, financial projections\nand budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds of key personnel, personnel\ntraining and techniques and materials); and\n1\n(c) notes, analysis, compilations, studies, summaries, and other material prepared by or for the Employer containing or based, in whole or\nin part, on any information included in the foregoing.\n"DISABILITY"- defined in Section 6.2.\n"EFFECTIVE DATe" date stated in the first paragraph of the Agreement.\n"EMPLOYMENT PERIOD" term of the Executive's employment under this Agreement.\n"FISCAL YEAR" -the Employer's fiscal year, as it exists on the Effective Date or as changed from time to time.\n"FOR CAUsE" defined in Section 6.3.\n"PERSON"-a individual, corporation (including any non-profit corporation), general or limited partnership, limited liability company, joint\nventure, estate, trust, association, organization, or governmental body.\n"POST-EMPLOYMENT PERIOD"- defined in Section 8.2.\n"PROPRIETARY ITEMS" -as defined in Section 7.2(a)(iv).\n"SALARY"- defined in Section 3.1(a).\n2.\nEMPLOYMENT TERMS AND DUTIES\n2.1 EMPLOYMENT\nThe Employer hereby employs the Employee, and the Employee hereby accepts employment by the Employer, upon the terms and conditions\nset forth in this Agreement.\n2.2 TERM\nSubject to the provisions of Section 6, the term of the Employee's employment under this Agreement will be 2 years, beginning on the 1st day\nof May 2011 and ending on April 30, 2012. The 2nd year of the Agreement is conditioned upon the Employee booking International sales in excess\nof one million ($1,000,000) dollars, within the 1st year of the Agreement Upon agreement of the Employer and Employee, the terms of this\nAgreement may be extended beyond the initial term until terminated for cause or until terminated as otherwise provided in this Agreement.\n2\n2.3 DUTIES\nThe Employee will initially serve as the Special Assistant to Michel Moreno, and may sometimes also be referred to as the "Market Advisor"\nof the Employer. The Employee will use his best efforts to promote the success of the Employer's business, and will cooperate fully with the other\nemployees in the advancement of the best interests of Employer. Employee will expand the business opportunities of the Employer, including, but\nnot\nlimited to, increasing revenues and earnings of the Employer. Nothing in this Section 2.3, however, will prevent the Employee from engaging\nin\nadditional activities in connection with personal investments and community affairs that are not inconsistent with Employee's duties under this\nAgreement.\n3. COMPENSATION\n3.1 BASIC COMPENSATION\n(a) Salary.. The Employee will be paid an annual salary of $244,000.00, subject to adjustment as provided below (the "SALARY"), which\nwill be payable in equal periodic installments according to the Employer's customary payroll practices, but no less frequently than monthly.\nThe Salary will be reviewed by the Michel Moreno not less frequently than annually, and may not be adjusted downward.\n(b) Benefits. The Employee will, during the Employment Period, be permitted to participate in the pension, profit sharing, bonus, life\ninsurance, hospitalization, major medical, and other employee benefit plans of the Employer that may be in effect from time to time, to the\nextent the Employee is eligible under the terms of those plans (collectively, the "BENEFITS"). The Employer shall not by reason of this\nSection 3 be obligated to institute, maintain, or refrain from changing, amending, or discontinuing, any employee benefit program or plan,\nso\nlong as such actions are similarly applicable to covered employees generally. The Employer will pay 100% of Employee's group health and\ndisability insurance premiums as maintained by the Employer.\n(c) The Employer may withhold from the Salary, incentive compensation, and any other compensation, benefits, or amounts payable\nunder this Agreement all federal, state, city, or other taxes as may be required pursuant to any law or governmental regulation or ruling.\n3.2 INCENTIVE COMPENSATION\n(a) The Employee will be entitled to receive 3% to 5%, (percentage to be jointly determined by Employer and Employee), of revenue\ndirectly generated from international sales by Employee for the Company. Gross Revenue as used herein shall be based upon billings made by\nthe Company and compensation predicated thereon shall be paid irrespective of the date of payment to the Company. Employee shall receive\ncompensation upon revenue generated during the term of this Agreement but billed thereafter. Cash and trade discounts shall not be deducted\nfrom the gross selling price.\n3\n(b) Examination of books-Employee shall have the right personally, or through an agent, but at his own expense, to examine the books\nand records of the Company for the purpose of determining the gross revenue.\n4.\nFACILITIES AND EXPENSES\n4.1 GENERAL\nThe Employee will work at his preferred location and will be directed by his efforts alone. In accordance with the Employer's\nemployment policies, Employee will be reimbursed reasonable expenses incurred by the Employee, in appropriate entertainment activities, and for\nbusiness promotional expenses. The Employee must file expense reports with respect to such expenses in accordance with the Employer's policies\nand approved by Michel Moreno.\n4.2 AUTOMOBILE\nThe Employer will pay the Employee an automobile allowance of $1,300.00 per month. The Employee will own his own automobile,\nand maintain and insure it at his own expense, for his business use in connection with his employment under this Agreement. The Employee will at\nhis own expense maintain liability insurance on any automobile used in connection with the Employer's business, including excess liability\n(umbrella) insurance coverage in an amount not less than $1,000,000 per occurrence, with underlying insurance coverage as required by such excess\nliability insurance policy, and the Employee will furnish proof of such insurance to the Employer as requested by the Employer. The Employee will\nbe solely responsible for all automobile expenses, except for gas and oil expenses which will, with written proof of such expenses, be reimbursed to\nthe Employee by the Employer. All such oil and gas expenses submitted for reimbursement must be allocated by Employee between Employer, and\nany of Employer's affiliated Employee may be employed by, and Employee will be responsible for all taxes applicable to the reimbursement of these\noil and gas expenses.\n5.\nVACATIONS AND HOLIDAYS\nThe Employee will be entitled to four (4) weeks' paid vacation each Fiscal Year to be taken at times selected by him, with the prior notice\nto\nthe Company's Members, and in accordance with the vacation policies of the Employer in effect for its Employee officers from time to time. The\nEmployee will also be entitled to the paid holidays set forth in the Employer's policies.\n6. TERMINATION\n6.1 EVENTS OF TERMINATION\nThe Employment Period, the Employee's Basic Compensation, and any and all other rights of the Employee under this Agreement or\notherwise as an employee of the Employer will terminate (except as otherwise provided in this Section 6):\n(a) upon the death of the Employee; or\n4\n(b)\nupon the disability of the Employee (as defined in Section 6.2) immediately upon notice from either party to the other;\n(c) for cause (as defined in Section 6.3), immediately upon notice from the Employer to the Employee, or at such later time as such\nnotice may specify;\n(d) by Employee without cause, immediately upon notice from Employee or at Employee's later time as such notice may specify.\n6.2 DEFINITION OF DISABILITY\nFor purposes of Section 6.1, the Employee will be deemed to have a "disability" if, for physical or mental reasons, the Employee is\nunable to perform the essential functions of the Employee's duties under this Agreement for 120 consecutive days, or 180 days during any twelve-\nmonth period, as determined in accordance with this Section 6.2. The disability of the Employee will be determined by a medical doctor selected\nby\nwritten agreement of the Employer and the Employee upon the request of either party by notice to the other. If the Employer and the Employee\ncannot agree on the selection of a medical doctor, each of them will select a medical doctor and the two medical doctors will select a third medical\ndoctor who will determine whether the Employee has a disability. The determination of the medical doctor selected under this Section 6.2 will\nbe\nbinding\non\nboth\nparties.\nThe\nEmployee\nmust\nsubmit\nto\na\nreasonable\nnumber\nof\nexaminations\nby\nthe\nmedical\ndoctor\nmaking\nthe\ndetermination\nof\ndisability under this Section 6.2, and the Employee hereby authorizes the disclosure and release to the Employer of such determination and all\nsupporting medical records. If the Employee is not legally competent, the Employee's legal guardian or duly authorized attorney-in-fact will act in\nthe\nEmployee's stead, under this Section 6.2, for the purposes of submitting the Employee to the examinations, and providing the authorization of\ndisclosure, required under this Section 6.2.\n6.3 DEFINITION OF "FOR CAUSE"\nFor purposes of Section 6.1, the phrase "for cause" means: (a) the Employee's material breach of this Agreement; (b) the Employee's material\nfailure to adhere to any written Employer policy; (c) the appropriation (or attempted appropriation) of a material business opportunity of the\nEmployer, including attempting to secure or securing any personal profit in connection with any transaction entered into on behalf of the Employer;\n(d) the misappropriation (or attempted misappropriation) of any of the Employer's funds, property, or opportunity; (e) the conviction of, the\nindictment for (or its procedural equivalent), or the entering of a guilty plea or plea of no contest with respect to a felony punishable by\nimprisonment; (f) Employee's gross negligence in the performance of the duties and services required of the Employee pursuant to this Agreement\nthat has a material adverse effect on the Employer or any affiliate; or (g) it is found that a material representation or warranty made by the Employee\nin this Agreement was untrue at the time such representation or warranty was made.\n6.4 TERMINATION PAY\nEffective upon the termination of this Agreement, the Employer will be obligated to pay the Employee (or, in the event of his death, his\ndesignated beneficiary as defined below) only such compensation as is provided in this Section 6.4, and in lieu of all other amounts and in\n5\nsettlement and complete release of all claims the Employee may have against the Employer. For purposes of this Section 6.4, the Employee's\ndesignated beneficiary will be such individual beneficiary or trust, located at such address, as the Employee may designate by notice to the\nEmployer. from time to time or, if the Employee fails to give notice to the Employer of such a beneficiary, the Employee's estate. Notwithstanding\nthe preceding sentence, the Employer will have no duty, in any circumstances, to attempt to open an estate on behalf of the Employee, to determine\nwhether any beneficiary designated by the Employee is alive or to ascertain the address of any such beneficiary, to determine the existence of any\ntrust, to determine whether any person or entity purporting to act as the Employee's personal representative (or the trustee of a trust established by\nthe Employee) is duly authorized to act in that capacity, or to locate or attempt to locate any beneficiary, personal representative, or trustee.\n(a) Termination by the Employer for Cause. If the Employer terminates this Agreement for cause, the Employee will be entitled to\nreceive his Salary only through the date this Agreement is effective.\n(b) Termination upon Disability. If this Agreement is terminated by either party as a result of the Employee's disability, as determined\nunder Section 6.2, the Employer will continue to pay the Employee his Salary for the period of two months following this notice of termination\nless any disability insurance benefits received by Employee under the disability insurance coverage furnished by Employer.\n(c) Termination upon Death. If this Agreement is terminated because of the Employee's death, the Employee will be entitled to receive\nhis Salary through the end of the calendar month in which his death occurs and one additional month.\n(d) Termination without cause. If this Agreement is terminated because without cause, the Employee will be entitled to receive his Salary\nas it becomes due for the remaining term of this Agreement. If the Employee terminates this Agreement without cause, Employee will be\nentitled to his Salary only through the date such termination is effective.\n(e) If the Employee terminates this Agreement, Employee will be entitled to his Salary only through the date such termination is\neffective.\n(f) Benefits. The Employee's accrual of, or participation in plans providing for, the Benefits will cease at the effective date of the\ntermination of this Agreement, and the Employee will be entitled to accrued Benefits pursuant to such plans only as provided in such plans.\nExcluding a termination without cause as provided in Section 6.4(d) and/or a resignation of employment by Employee, the Employee will\nnot\nreceive, as part of his termination pay pursuant to this Section 6, any payment or other compensation for any vacation, holiday, sick leave, or\nother leave unused on the date the notice of termination is given under this Agreement.\n6\n7.\nNON-DISCLOSURE COVENANT\n7.1\nACKNOWLEDGMENTS BY THE EMPLOYEE\nThe Employee acknowledges that (a) during the Employment Period and as a part of his employment, the Employee will be afforded\naccess to Confidential Information; (b) public disclosure of such Confidential Information could have an adverse effect on the Employer and its\nbusiness; (c) because the Employee possesses substantial technical expertise and skill with respect to the Employer's business; and (d) the provisions\nof this Section 7 are reasonable and necessary to prevent the improper use or disclosure of Confidential Information.\n7.2 AGREEMENTS OF THE EMPLOYEE\nIn consideration of the compensation and benefits to be paid or provided to the Employee by the Employer under this Agreement, the\nEmployee covenants as follows:\nConfidentiality.\n(i) During and for 2 years following the Employment Period, the Employee will hold in confidence the Confidential Information\nand will not disclose it to any person except with the specific prior written consent of the Employer or except as otherwise expressly\npermitted by the terms of this Agreement.\n(ii) Any trade secrets of the Employer will be entitled to all of the protections and benefits under the trade secret law of the States\nof Louisiana and any other applicable law. If any information that the Employer deems to be a trade secret is found by a court of\ncompetent jurisdiction not to be a trade secret for purposes of this Agreement, such information will, nevertheless, be considered\nConfidential Information for purposes of this Agreement. The Employee hereby waives any requirement that the Employer submit proof\nof the economic value of any trade secret or post a bond or other security.\n(iii) None of the foregoing obligations and restrictions applies to any part of the Confidential information that the Employee\ndemonstrates was or became generally available to the public other than as a result of a disclosure by the Employee.\n(iv) The Employee will not remove from the Employer's premises (except to the extent such removal is necessary for purposes of\nthe performance of the Employee's duties at home or while traveling, or except as otherwise specifically authorized by the Employer)\nany document, record, notebook, plan, model, component, device, or computer software or code, whether embodied in a disk or in any\nother form (collectively, the "PROPRIETARY ITEMS"). The Employee recognizes that, as between the Employer and the Employee, all\nof the Proprietary items, whether or not developed by the Employee, are the exclusive property of the Employer. Upon termination of\nthis Agreement by either party, or upon the request of the Employer during the Employment Period, the Employee will return to the\nEmployer all of the Proprietary items in the Employee's possession or subject to the Employee's control, and the Employee shall not\nretain any copies, abstracts, sketches, or other physical or electronic embodiment of any of the Proprietary items.\n7\n(v) All information, ideas, concepts, improvements, discoveries, and inventions, whether patentable or not, which are conceived,\nmade, developed or acquired by Employee, individually or in conjunction with others, during Employee's employment by the Employer\n(whether' during business hours or otherwise and whether on the Employer's premises or otherwise) which relate to the Employer's\nbusiness, products or services (including, without limitation, all such information relating to corporate opportunities, research, financial\nand sales data, pricing and trading terms, evaluations, opinions, interpretations, acquisition prospects, the identity of customers or their\nrequirements, the identity of key contacts within the customer's organizations or within the organization of acquisition prospects, or\nmarketing and merchandising techniques, prospective names, and marks), and all writings or materials of any type embodying any of\nsuch items, will be the sole and exclusive property of the Employer.\n7.3 DISPUTES OR CONTROVERSIES\nThe Employee recognizes that should a dispute or controversy arising from or relating to this Agreement be submitted for adjudication to\nany court, arbitration panel, or other third party, the preservation of the secrecy of Confidential information may be jeopardized All pleadings,\ndocuments, testimony, and records relating to any such adjudication will be maintained in secrecy and will be available for inspection by the\nEmployer, the Employee, and their respective attorneys and experts, who will agree, in advance and in writing, to receive and maintain all such\ninformation in secrecy, except as may be limited by them in writing.\n8.\nNON-COMPETITION AND NON-INTERFERENCE\n8.1\nACKNOWLEDGMENTS BY THE EMPLOYEE\nThe Employee acknowledges that: (a) the services to be performed by him under this Agreement are of a special, unique, unusual,\nextraordinary, and intellectual character; (b) the Employer's business is regional in scope and its products are marketed throughout the States of\nLouisiana, Mississippi, Texas and offshore in the Gulf of Mexico; (c) the Employer competes with other businesses that are or could be located in\nany part of the States of Louisiana, Mississippi, or Texas and (d) the provisions of this Section 8 are reasonable and necessary to protect the\nEmployer's business.\n8.2 COVENANTS OF THE EMPLOYEE\nIn consideration of the acknowledgments by the Employee, and in consideration of the compensation and benefits to be paid or provided\nto the Employee by the Employer, the Employee covenants that he will not, directly or indirectly:\n8\n(a) during the Employment Period, except in the course of his employment hereunder, and during the Post-Employment Period, engage\nor invest in, own, manage, operate, finance, control, or participate in the ownership, management, operation, financing, or control of,\nbe\nemployed by, associated with, or in any manner connected with, lend the Employee's name or any similar name to, lend Employee's credit to\nor render services or advice to, any business that competes in whole or in part with the business of the Employer anywhere the Employer\nconducts business, and specifically within the States of Mississippi, Texas, the parishes of Louisiana described in Exhibit A attached hereto\nand offshore in the Gulf of Mexico; provided, however, that the Employee may purchase or otherwise acquire up to (but not more than) five\npercent of any class of securities of any enterprise (but without otherwise participating in the activities of such enterprise) if such securities are\nlisted on any national or regional securities exchange or have been registered under Section 12(g) of the Securities Exchange Act of 1934;\n(b) whether for the Employee's own account or for the account of any other person, at any time during the Employment Period and the\nPost-Employment Period, solicit business of the same or similar type being carried on by the Employer, from any person known by the\nEmployee to be a customer of the Employer, whether or not the Employee had personal contact with such person during and by reason of the\nEmployee's employment with the Employer;\n(c) whether for the Employee's own account or the account of any other person (i) at any time during the Employment Period and the\nPost-Employment Period, solicit, employ, or otherwise engage as an employee, independent contractor, or otherwise, any person who is or was\nan employee of the Employer at any time during the Employment Period or in any manner induce or attempt to induce any employee of the\nEmployer to terminate his employment with the Employer; or (ii) at any time during the Employment Period and the Post-Employment Period\ninterfere with the Employer's relationship with any person, including any person who at any time during the Employment Period was an\nemployee, contractor, supplier, or customer of the Employer; or\n(d) at any time during or after the Employment Period, disparage the Employer or any of its shareholders, directors, officers, employees,\nor agents.\nFor purposes of this Section 8.2, the term "Post-Employment Period" means the two year period beginning on the date of termination of the\nEmployee's employment with the Employer.\nEmployee acknowledges and agrees that Employee, while employed by the Employer, owes a fiduciary duty of loyalty, fidelity and allegiance\nto act at all times in the best interest of the Employer, to do no act which would intentionally injure the Employer's business, interests, or reputation.\nIn keeping with Employee's fiduciary duties owed to the Employer, Employee agrees that Employee will not knowingly become involved in a\nconflict of interest with the Employer or its affiliates, or upon discovery thereof, allow such a conflict to continue.\n9\nIf any covenant in this Section 8.2 is held to be unreasonable, arbitrary, or against public policy, such covenant will be considered to be\ndivisible with respect to scope, time, and geographic area, and such lesser scope, time, or geographic area, or all of them, as a court of competent\njurisdiction may determine to be reasonable, not arbitrary, and not against public policy, will be effective, binding, and enforceable against the\nEmployee. Nevertheless, if any of the aforesaid restrictions are found by a court having jurisdiction to be unreasonable or overly broad as to\ngeographic area or time, or otherwise unenforceable, the parties intend for the restrictions herein set forth to be modified by such courts so as to be\nreasonable and enforceable and, as so modified to be fully enforced.\nThe Employee will, while the covenant under this Section 8.2 is in effect, give notice to the Employer, within ten days after accepting any\nother employment, of the identity of the Employee's employer. The Buyer or the Employer may notify such employer that the Employee is bound by\nthis Agreement and, at the Employer's election, furnish such employer with a copy of this Agreement or relevant portions thereof.\n9.\nGENERAL PROVISIONS\n9.1 INJUNCTIVE RELIEF AND ADDITIONAL REMEDY\nThe Employee acknowledges that the injury that would be suffered by the Employer as a result of a breach of the provisions of this\nAgreement (including but not limited to any provision of Sections 7 and 8) would be irreparable and that an award of monetary damages to the\nEmployer for such a breach would be an inadequate remedy. Consequently, the Employer will have the right, in addition to any other rights it may\nhave, to obtain injunctive relief to restrain any breach or threatened breach or otherwise to specifically enforce any provision of this Agreement and\nthe Employer will not be obligated to post bond or other security in seeking such relief. Without limiting the Employer's rights under this Section 9\nor any other remedies of the Employer, if the Employee breaches any of the provisions of Section 7 or 8, the Employer will have the right to cease\nmaking any payments otherwise due to the Employee under this Agreement.\n9.2 COVENANTS OF SECTIONS 7 AND 8 ARE ESSENTIAL AND INDEPENDENT COVENANTS\nThe covenants by the Employee in Sections 7 and 8 are essential elements of this Agreement, and without the Employee's agreement to\ncomply with such covenants, the Employer would not have entered into this Agreement or employed or continued the employment of the Employee.\nThe Employer and the Employee have independently consulted their respective counsel and have been advised in all respects concerning the\nreasonableness and propriety of such covenants, with specific regard to the nature of the business conducted by the Employer.\nThe Employee's covenants in Sections 7 and 8 are independent covenants and the existence of any claim by the Employee against the\nEmployer under this Agreement or otherwise, or against the Buyer, will not excuse the Employee's breach of any covenant in Section 7 or 8.\n10\nIf the Employee's employment hereunder expires or is terminated, this Agreement will continue in full force and effect as is necessary or\nappropriate to enforce the covenants and agreements of the Employee in Sections 7 and 8.\n9.3 REPRESENTATIONS AND WARRANTIES BY THE EMPLOYEE\nThe Employee represents and warrants to the Employer that the execution and delivery by the Employee of this Agreement do not, and\nthe performance by the Employee of the Employee's obligations hereunder will not, with or without the giving of notice or the passage of time, or\nboth: (a) violate any judgment, writ, injunction, or order of any court, arbitrator, or governmental agency applicable to the Employee; or (b) conflict\nwith, result in the breach of any provisions of or the termination of, or constitute a default under, any agreement to which the Employee is a party or\nby which the Employee is or may be bound.\n9.4 OBLIGATIONS CONTINGENT ON PERFORMANCE\nThe obligations of the Employer hereunder, including its obligations to pay the compensation provided for herein, are contingent upon\nthe Employee's performance of all the Employee's obligations hereunder.\n9.5 WAIVER\nThe rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by either\nparty in exercising any right, power, or privilege under this Agreement will operate as a waiver of such right, power, or privilege, and no single or\npartial\nexercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of\nany other right, power, or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be\ndischarged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no\nwaiver\nthat\nmay be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one\nparty will be deemed to be a waiver of any obligation of that party or of the right of the party giving the notice or demand to take further action\nwithout notice or demand as provided in this Agreement.\n9.6 BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED\nThis Agreement will inure to the benefit of, and will be binding upon, the parties hereto and their respective successors, assigns, heirs,\nand legal representatives, including any entity with which the Employer may merge or consolidate or to which all or substantially all of its assets\nmay be transferred. The duties and covenants of the Employee under this Agreement, being personal, may not be delegated.\n9.7 NOTICES\nAll notices, consents, waivers, and other communications under this Agreement must be in writing and will be deemed to have been duly\ngiven when (a) delivered by hand (with written confirmation of receipt), (b) sent by facsimile (with written confirmation of receipt),\n11\nprovided that a copy is mailed by registered mail, return receipt requested, or (c) when received by the addressee, if sent by a nationally recognized\novernight delivery service (receipt requested), in each case to the appropriate addresses and facsimile numbers set forth below (or to any other\naddresses and facsimile numbers as a party may designate by notice to the other parties):\nIf to Employer:\nHub City Industries, L.L.C.\n500 Dover Blvd., Suite 100\nLafayette, LA 70503\nAttention: Earl Blackwell\nWith a copy to:\nFrank S. Slavich, III\nBabineaux, Poche, Anthony & Slavich, LLC\n1201 Camellia Blvd., Suite 300\nLafayette, LA 70508\nIf to the Employee:\nJohn Egle\n112 East Peck Blvd.\nLafayette, LA 70508\nWith a copy to:\nCharles Rush, Esq.\n202 Magnate Drive\nLafayette, LA 70508\n9.8 INDEMNIFICATION OF EMPLOYEE\nThe Employer will defend, indemnify, and hold harmless Employee if Employee is made a party to a proceeding because he is a party to\nthis Agreement against liability incurred in the proceeding, if he:\n(a) conducted himself in good faith;\n(b) Reasonably believed that his conduct was in or at least not opposed to the Company's best interest; and\n(c) In the case of any criminal proceeding, had no reasonable cause to believe his conduct was unlawful.\n9.9 ENTIRE AGREEMENT: AMENDMENTS\nThis Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersede all prior\nagreements and understandings, oral or written, between the parties hereto with respect to the subject matter hereof. This Agreement may not be\namended orally, but only by an agreement in writing signed by the parties this Agreement.\n12\n9.10 GOVERNING LAW\nThis Agreement will be governed by the laws of the State of Louisiana without regard to conflicts of laws principles.\n9.11 JURISDICTION\nAny action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement will be brought\nagainst either of the parties in the courts of the State of Louisiana, Parish of Lafayette, or if it has or can acquire jurisdiction, in the United States\nDistrict Court for the Western District of Louisiana, and each of the parties consents to the jurisdiction of such courts (and of the appropriate\nappellate courts) in any such action or proceeding and waives any objection to venue laid therein. Process in any action or proceeding referred to in\nthe preceding sentence may be served on either party anywhere in the world.\n9.12 SECTION HEADINGS, CONSTRUCTION\nThe headings of Sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All\nreferences to "Section" or "Sections" refer to the corresponding Section or Sections of this Agreement unless otherwise specified. All words used in\nthis Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word\n"including" does not limit the preceding words or terms.\n9.13 SEVERABILITY\nIf any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this\nAgreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in\nfull force and effect to the extent not held invalid or unenforceable.\n9.14 COUNTERPARTS\nThis Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement\nand all of which, when taken together, will be deemed to constitute one and the same agreement.\n9.15 ATTORNEY'S FEES\nIn the event that there is any controversy or claim arising out of or relating to this Agreement, or to the interpretation, breach or\nenforcement thereof, and any action or proceeding is commenced to enforce the provisions of this Agreement, the prevailing party shall be entitled to\na reasonable attorney's fee, costs and expenses.\n9.16 JOINT DRAFTING\nThe parties have participated jointly in negotiating and drafting this Agreement. If a question of interpretation arises, this Agreement\nshall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of\nthe authorship of any provision of this Agreement.\n13\n9.17 WAIVE OF JURY TRIAL\nTHE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO\nTHIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS, WHETHER NOW EXISTING OR HEREAFTER ARISING,\nAND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. THE PARTIES AGREE THAT ANY OF THEM MAY FILE A COPY\nOF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR\nAGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE TRIAL BY JURY AND THAT ANY PROCEEDING WHATSOEVER\nBETWEEN THEM RELATING TO THIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS SHALL INSTEAD BE\nTRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.\n9.18 TERMINATION OF PRIOR EMPLOYEMENT AGREEMENT\nThis Agreement hereby supersedes and replaces that certain Amended and Restated Employment, Non-Disclosure, and Non-Compete\nAgreement dated January 15, 2009 (the "Original Agreement"). The parties acknowledge and agree that the Original Agreement is terminated as of\nthe Effective Date of this Agreement.\nIN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date above first written above.\nEMPLOYER:\nHUB CITY INDUSTRIES, L.L.C\nBy:\n/s/ Michel B. Moreno\nName: Michel B. Moreno\nTitle: Managing Manger\nEMPLOYEE:\n/s/ John M. Egle\nJOHN M. EGLE\n14\nEXHIBIT A\nLOUISIANA PARISHES\nAcadia\nMadison\nAllen\nMorehouse\nAscension\nNatchitoches\nAssumption\nOrleans\nAvoyelles\nOuachita\nBeauregard\nPlaquemines\nBienville\nPointe Coupee\nBossier\nRapides\nCaddo\nRed River\nCalcasieu\nRichland\nCaldwell\nSabine\nCameron\nSt. Bernard\nCatahoula\nSt. Charles\nClaiborne\nSt. Helena\nConcordia\nSt. James\nDeSoto\nSt. John the Baptist\nEast Baton Rouge\nSt. Landry\nEast Carroll\nSt. Martin\nEast Feliciana\nSt. Mary\nEvangeline\nSt. Tammany\nFranklin\nTangipahoa\nGrant\nTensas\nIberia\nTerrebonne\nIberville\nUnion\nJackson\nVermillion\nJefferson\nVernon\nJefferson Davis\nWashington\nLafayette\nWebster\nLafourche\nWest Baton Rouge\nLaSalle\nWest Carroll\nLincoln\nWest Feliciana\nLivingston\nWinn\n15	EX-10.5 15 d349756dex105.htm SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT - JOHN\nM. EGLE\nExhibit 10.5\nSECOND AMENDED & RESTATED EMPLOYMENT,\nNON-DISCLOSURE, AND NON-COMPETE AGREEMENT\nThis Second Amended & Restated Employment, Non-Disclosure, and Non-Compete Agreement (this “AGREEMENT”) is made effective as of\nMay 1, 2011, by Hub City Industries, L.L.C ., a Louisiana liability company (the “EMPLOYER”), and John M. Egle, an individual resident in\nLafayette, Louisiana (the “EMPLOYEE”).\nRECITALS\nThe Employer desires the Employee’s continued employment with the Employer, and the Employee wishes to accept such continued\nemployment, upon the terms and conditions set forth in this Agreement.\nAGREEMENT\nThe parties, intending to be legally bound, agree as follows:\n1. DEFINITIONS\nFor the purposes of this Agreement, the following terms have the meanings specified or referred to in this Section 1.\n“AGREEMENT”—this Employment, Non-Disclosure, and Non-Competition Agreement, as amended from time to time.\n“BASIC COMPENSATION”—Salary and Benefits.\n“BENEFITS”—as defined in Section 3.1(b).\n“CONFIDENTIAL INFORMATION”—any and all:\n(a) trade secrets concerning the business and affairs of the Employer, product specifications, data, know-how, formulae, compositions,\nprocesses, designs, sketches, photographs, graphs, drawings, samples, inventions and ideas, past, current, and planned research and\ndevelopment, current and planned manufacturing or distribution methods and processes, customer lists, current and anticipated customer\nrequirements, price lists, market studies, business plans, computer software and programs (including object code and source code), computer\nsoftware and database technologies, systems, structures, and architectures (and related formulae, compositions, processes, improvements,\ndevices, know-how, inventions, discoveries, concepts, ideas, designs, methods and information) and any other information, however\ndocumented, that is a trade secret within the meaning of trade secret laws of the State of Louisiana;\n(b) information concerning the business and affairs of the Employer (which includes historical financial statements, financial projections\nand budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds of key personnel, personnel\ntraining and techniques and materials); and\n1\n(c) notes, analysis, compilations, studies, summaries, and other material prepared by or for the Employer containing or based, in whole or\nin part, on any information included in the foregoing.\n“DISABILITY”—as defined in Section 6.2.\n“EFFECTIVE DATE”—the date stated in the first paragraph of the Agreement.\n“EMPLOYMENT PERIOD”—the term of the Executive’s employment under this Agreement.\n“FISCAL YEAR”—the Employer’s fiscal year, as it exists on the Effective Date or as changed from time to time.\n“FOR CAUSE”—as defined in Section 6.3.\n“PERSON”—any individual, corporation (including any non-profit corporation), general or limited partnership, limited liability company, joint\nventure, estate, trust, association, organization, or governmental body.\n“POST-EMPLOYMENT PERIOD”—as defined in Section 8.2.\n“PROPRIETARY ITEMS”—as defined in Section 7.2(a)(iv).\n“SALARY”—as defined in Section 3.1(a).\n2. EMPLOYMENT TERMS AND DUTIES\n2.1 EMPLOYMENT\nThe Employer hereby employs the Employee, and the Employee hereby accepts employment by the Employer, upon the terms and conditions\nset forth in this Agreement.\n2.2 TERM\nSubject to the provisions of Section 6, the term of the Employee’s employment under this Agreement will be 2 years, beginning on the 1 day\nof May 2011 and ending on April 30, 2012. The 2nd year of the Agreement is conditioned upon the Employee booking International sales in excess\nof one million ($1,000,000) dollars, within the 1 year of the Agreement. Upon agreement of the Employer and Employee, the terms of this\nAgreement may be extended beyond the initial term until terminated for cause or until terminated as otherwise provided in this Agreement.\n2\nst\nst\n2.3 DUTIES\nThe Employee will initially serve as the Special Assistant to Michel Moreno, and may sometimes also be referred to as the “Market Advisor”\nof the Employer. The Employee will use his best efforts to promote the success of the Employer’s business, and will cooperate fully with the other\nemployees in the advancement of the best interests of Employer. Employee will expand the business opportunities of the Employer, including, but\nnot limited to, increasing revenues and earnings of the Employer. Nothing in this Section 2.3, however, will prevent the Employee from engaging in\nadditional activities in connection with personal investments and community affairs that are not inconsistent with Employee’s duties under this\nAgreement.\n3. COMPENSATION\n3.1 BASIC COMPENSATION\n(a) Salary. The Employee will be paid an annual salary of $244,000.00, subject to adjustment as provided below (the “SALARY”), which\nwill be payable in equal periodic installments according to the Employer’s customary payroll practices, but no less frequently than monthly.\nThe Salary will be reviewed by the Michel Moreno not less frequently than annually, and may not be adjusted downward.\n(b) Benefits. The Employee will, during the Employment Period, be permitted to participate in the pension, profit sharing, bonus, life\ninsurance, hospitalization, major medical, and other employee benefit plans of the Employer that may be in effect from time to time, to the\nextent the Employee is eligible under the terms of those plans (collectively, the “BENEFITS”). The Employer shall not by reason of this\nSection 3 be obligated to institute, maintain, or refrain from changing, amending, or discontinuing, any employee benefit program or plan, so\nlong as such actions are similarly applicable to covered employees generally. The Employer will pay 100% of Employee’s group health and\ndisability insurance premiums as maintained by the Employer.\n(c) The Employer may withhold from the Salary, incentive compensation, and any other compensation, benefits, or amounts payable\nunder this Agreement all federal, state, city, or other taxes as may be required pursuant to any law or governmental regulation or ruling.\n3.2 INCENTIVE COMPENSATION\n(a) The Employee will be entitled to receive 3% to 5%, (percentage to be jointly determined by Employer and Employee), of revenue\ndirectly generated from international sales by Employee for the Company. Gross Revenue as used herein shall be based upon billings made by\nthe Company and compensation predicated thereon shall be paid irrespective of the date of payment to the Company. Employee shall receive\ncompensation upon revenue generated during the term of this Agreement but billed thereafter. Cash and trade discounts shall not be deducted\nfrom the gross selling price.\n3\n(b) Examination of books-Employee shall have the right personally, or through an agent, but at his own expense, to examine the books\nand records of the Company for the purpose of determining the gross revenue.\n4. FACILITIES AND EXPENSES\n4.1 GENERAL\nThe Employee will work at his preferred location and will be directed by his efforts alone. In accordance with the Employer’s\nemployment policies, Employee will be reimbursed reasonable expenses incurred by the Employee, in appropriate entertainment activities, and for\nbusiness promotional expenses. The Employee must file expense reports with respect to such expenses in accordance with the Employer’s policies\nand approved by Michel Moreno.\n4.2 AUTOMOBILE\nThe Employer will pay the Employee an automobile allowance of $1,300.00 per month. The Employee will own his own automobile,\nand maintain and insure it at his own expense, for his business use in connection with his employment under this Agreement. The Employee will at\nhis own expense maintain liability insurance on any automobile used in connection with the Employer’s business, including excess liability\n(umbrella) insurance coverage in an amount not less than $1,000,000 per occurrence, with underlying insurance coverage as required by such excess\nliability insurance policy, and the Employee will furnish proof of such insurance to the Employer as requested by the Employer. The Employee will\nbe solely responsible for all automobile expenses, except for gas and oil expenses which will, with written proof of such expenses, be reimbursed to\nthe Employee by the Employer. All such oil and gas expenses submitted for reimbursement must be allocated by Employee between Employer, and\nany of Employer’s affiliated Employee may be employed by, and Employee will be responsible for all taxes applicable to the reimbursement of these\noil and gas expenses.\n5. VACATIONS AND HOLIDAYS\nThe Employee will be entitled to four (4) weeks’ paid vacation each Fiscal Year to be taken at times selected by him, with the prior notice to\nthe Company’s Members, and in accordance with the vacation policies of the Employer in effect for its Employee officers from time to time. The\nEmployee will also be entitled to the paid holidays set forth in the Employer’s policies.\n6. TERMINATION\n6.1 EVENTS OF TERMINATION\nThe Employment Period, the Employee’s Basic Compensation, and any and all other rights of the Employee under this Agreement or\notherwise as an employee of the Employer will terminate (except as otherwise provided in this Section 6):\n(a) upon the death of the Employee; or\n4\n(b) upon the disability of the Employee (as defined in Section 6.2) immediately upon notice from either party to the other;\n(c) for cause (as defined in Section 6.3), immediately upon notice from the Employer to the Employee, or at such later time as such\nnotice may specify;\n(d) by Employee without cause, immediately upon notice from Employee or at Employee’s later time as such notice may specify.\n6.2 DEFINITION OF DISABILITY\nFor purposes of Section 6.1, the Employee will be deemed to have a “disability” if, for physical or mental reasons, the Employee is\nunable to perform the essential functions of the Employee’s duties under this Agreement for 120 consecutive days, or 180 days during any twelve-\nmonth period, as determined in accordance with this Section 6.2 . The disability of the Employee will be determined by a medical doctor selected by\nwritten agreement of the Employer and the Employee upon the request of either party by notice to the other. If the Employer and the Employee\ncannot agree on the selection of a medical doctor, each of them will select a medical doctor and the two medical doctors will select a third medical\ndoctor who will determine whether the Employee has a disability. The determination of the medical doctor selected under this Section 6.2 will be\nbinding on both parties. The Employee must submit to a reasonable number of examinations by the medical doctor making the determination of\ndisability under this Section 6.2, and the Employee hereby authorizes the disclosure and release to the Employer of such determination and all\nsupporting medical records. If the Employee is not legally competent, the Employee’s legal guardian or duly authorized attorney-in-fact will act in\nthe Employee’s stead, under this Section 6.2, for the purposes of submitting the Employee to the examinations, and providing the authorization of\ndisclosure, required under this Section 6.2 .\n6.3 DEFINITION OF “FOR CAUSE”\nFor purposes of Section 6.1, the phrase “for cause” means: (a) the Employee’s material breach of this Agreement; (b) the Employee’s material\nfailure to adhere to any written Employer policy; (c) the appropriation (or attempted appropriation) of a material business opportunity of the\nEmployer, including attempting to secure or securing any personal profit in connection with any transaction entered into on behalf of the Employer;\n(d) the misappropriation (or attempted misappropriation) of any of the Employer’s funds, property, or opportunity; (e) the conviction of, the\nindictment for (or its procedural equivalent), or the entering of a guilty plea or plea of no contest with respect to a felony punishable by\nimprisonment; (f) Employee’s gross negligence in the performance of the duties and services required of the Employee pursuant to this Agreement\nthat has a material adverse effect on the Employer or any affiliate; or (g) it is found that a material representation or warranty made by the Employee\nin this Agreement was untrue at the time such representation or warranty was made.\n6.4 TERMINATION PAY\nEffective upon the termination of this Agreement, the Employer will be obligated to pay the Employee (or, in the event of his death, his\ndesignated beneficiary as defined below) only such compensation as is provided in this Section 6.4, and in lieu of all other amounts and in\n5\nsettlement and complete release of all claims the Employee may have against the Employer. For purposes of this Section 6.4, the Employee’s\ndesignated beneficiary will be such individual beneficiary or trust, located at such address, as the Employee may designate by notice to the\nEmployer. from time to time or, if the Employee fails to give notice to the Employer of such a beneficiary, the Employee’s estate. Notwithstanding\nthe preceding sentence, the Employer will have no duty, in any circumstances, to attempt to open an estate on behalf of the Employee, to determine\nwhether any beneficiary designated by the Employee is alive or to ascertain the address of any such beneficiary, to determine the existence of any\ntrust, to determine whether any person or entity purporting to act as the Employee’s personal representative (or the trustee of a trust established by\nthe Employee) is duly authorized to act in that capacity, or to locate or attempt to locate any beneficiary, personal representative, or trustee.\n(a) Termination by the Employer for Cause. If the Employer terminates this Agreement for cause, the Employee will be entitled to\nreceive his Salary only through the date this Agreement is effective.\n(b) Termination upon Disability. If this Agreement is terminated by either party as a result of the Employee’s disability, as determined\nunder Section 6.2, the Employer will continue to pay the Employee his Salary for the period of two months following this notice of termination\nless any disability insurance benefits received by Employee under the disability insurance coverage furnished by Employer.\n(c) Termination upon Death. If this Agreement is terminated because of the Employee’s death, the Employee will be entitled to receive\nhis Salary through the end of the calendar month in which his death occurs and one additional month.\n(d) Termination without cause. If this Agreement is terminated because without cause, the Employee will be entitled to receive his Salary\nas it becomes due for the remaining term of this Agreement. If the Employee terminates this Agreement, without cause, Employee will be\nentitled to his Salary only through the date such termination is effective.\n(e) If the Employee terminates this Agreement, Employee will be entitled to his Salary only through the date such termination is\neffective.\n(f) Benefits. The Employee’s accrual of, or participation in plans providing for, the Benefits will cease at the effective date of the\ntermination of this Agreement, and the Employee will be entitled to accrued Benefits pursuant to such plans only as provided in such plans.\nExcluding a termination without cause as provided in Section 6.4(d) and/or a resignation of employment by Employee, the Employee will not\nreceive, as part of his termination pay pursuant to this Section 6, any payment or other compensation for any vacation, holiday, sick leave, or\nother leave unused on the date the notice of termination is given under this Agreement.\n6\n7. NON -DISCLOSURE COVENANT\n7.1 ACKNOWLEDGMENTS BY THE EMPLOYEE\nThe Employee acknowledges that (a) during the Employment Period and as a part of his employment, the Employee will be afforded\naccess to Confidential Information; (b) public disclosure of such Confidential Information could have an adverse effect on the Employer and its\nbusiness; (c) because the Employee possesses substantial technical expertise and skill with respect to the Employer’s business; and (d) the provisions\nof this Section 7 are reasonable and necessary to prevent the improper use or disclosure of Confidential Information.\n7.2 AGREEMENTS OF THE EMPLOYEE\nIn consideration of the compensation and benefits to be paid or provided to the Employee by the Employer under this Agreement, the\nEmployee covenants as follows:\nConfidentiality.\n(i) During and for 2 years following the Employment Period, the Employee will hold in confidence the Confidential Information\nand will not disclose it to any person except with the specific prior written consent of the Employer or except as otherwise expressly\npermitted by the terms of this Agreement.\n(ii) Any trade secrets of the Employer will be entitled to all of the protections and benefits under the trade secret law of the States\nof Louisiana and any other applicable law. If any information that the Employer deems to be a trade secret is found by a court of\ncompetent jurisdiction not to be a trade secret for purposes of this Agreement, such information will, nevertheless, be considered\nConfidential Information for purposes of this Agreement. The Employee hereby waives any requirement that the Employer submit proof\nof the economic value of any trade secret or post a bond or other security.\n(iii) None of the foregoing obligations and restrictions applies to any part of the Confidential information that the Employee\ndemonstrates was or became generally available to the public other than as a result of a disclosure by the Employee.\n(iv) The Employee will not remove from the Employer’s premises (except to the extent such removal is necessary for purposes of\nthe performance of the Employee’s duties at home or while traveling, or except as otherwise specifically authorized by the Employer)\nany document, record, notebook, plan, model, component, device, or computer software or code, whether embodied in a disk or in any\nother form (collectively, the “PROPRIETARY ITEMS”). The Employee recognizes that, as between the Employer and the Employee, all\nof the Proprietary items, whether or not developed by the Employee, are the exclusive property of the Employer. Upon termination of\nthis Agreement by either party, or upon the request of the Employer during the Employment Period, the Employee will return to the\nEmployer all of the Proprietary items in the Employee’s possession or subject to the Employee’s control, and the Employee shall not\nretain any copies, abstracts, sketches, or other physical or electronic embodiment of any of the Proprietary items.\n7\n(v) All information, ideas, concepts, improvements, discoveries, and inventions, whether patentable or not, which are conceived,\nmade, developed or acquired by Employee, individually or in conjunction with others, during Employee’s employment by the Employer\n(whether’ during business hours or otherwise and whether on the Employer’s premises or otherwise) which relate to the Employer’s\nbusiness, products or services (including, without limitation, all such information relating to corporate opportunities, research, financial\nand sales data, pricing and trading terms, evaluations, opinions, interpretations, acquisition prospects, the identity of customers or their\nrequirements, the identity of key contacts within the customer’s organizations or within the organization of acquisition prospects, or\nmarketing and merchandising techniques, prospective names, and marks), and all writings or materials of any type embodying any of\nsuch items, will be the sole and exclusive property of the Employer.\n7.3 DISPUTES OR CONTROVERSIES\nThe Employee recognizes that should a dispute or controversy arising from or relating to this Agreement be submitted for adjudication to\nany court, arbitration panel, or other third party, the preservation of the secrecy of Confidential information may be jeopardized. All pleadings,\ndocuments, testimony, and records relating to any such adjudication will be maintained in secrecy and will be available for inspection by the\nEmployer, the Employee, and their respective attorneys and experts, who will agree, in advance and in writing, to receive and maintain all such\ninformation in secrecy, except as may be limited by them in writing.\n8. NON -COMPETITION AND NON-INTERFERENCE\n8.1 ACKNOWLEDGMENTS BY THE EMPLOYEE\nThe Employee acknowledges that: (a) the services to be performed by him under this Agreement are of a special, unique, unusual,\nextraordinary, and intellectual character; (b) the Employer’s business is regional in scope and its products are marketed throughout the States of\nLouisiana, Mississippi, Texas and offshore in the Gulf of Mexico; (c) the Employer competes with other businesses that are or could be located in\nany part of the States of Louisiana, Mississippi, or Texas and (d) the provisions of this Section 8 are reasonable and necessary to protect the\nEmployer’s business.\n8.2 COVENANTS OF THE EMPLOYEE\nIn consideration of the acknowledgments by the Employee, and in consideration of the compensation and benefits to be paid or provided\nto the Employee by the Employer, the Employee covenants that he will not, directly or indirectly:\n8\n(a) during the Employment Period, except in the course of his employment hereunder, and during the Post-Employment Period, engage\nor invest in, own, manage, operate, finance, control, or participate in the ownership, management, operation, financing, or control of, be\nemployed by, associated with, or in any manner connected with, lend the Employee’s name or any similar name to, lend Employee’s credit to\nor render services or advice to, any business that competes in whole or in part with the business of the Employer anywhere the Employer\nconducts business, and specifically within the States of Mississippi, Texas, the parishes of Louisiana described in Exhibit A attached hereto\nand offshore in the Gulf of Mexico; provided, however, that the Employee may purchase or otherwise acquire up to (but not more than) five\npercent of any class of securities of any enterprise (but without otherwise participating in the activities of such enterprise) if such securities are\nlisted on any national or regional securities exchange or have been registered under Section 12(g) of the Securities Exchange Act of 1934;\n(b) whether for the Employee’s own account or for the account of any other person, at any time during the Employment Period and the\nPost-Employment Period, solicit business of the same or similar type being carried on by the Employer, from any person known by the\nEmployee to be a customer of the Employer, whether or not the Employee had personal contact with such person during and by reason of the\nEmployee’s employment with the Employer;\n(c) whether for the Employee’s own account or the account of any other person (i) at any time during the Employment Period and the\nPost-Employment Period, solicit, employ, or otherwise engage as an employee, independent contractor, or otherwise, any person who is or was\nan employee of the Employer at any time during the Employment Period or in any manner induce or attempt to induce any employee of the\nEmployer to terminate his employment with the Employer; or (ii) at any time during the Employment Period and the Post-Employment Period\ninterfere with the Employer’s relationship with any person, including any person who at any time during the Employment Period was an\nemployee, contractor, supplier, or customer of the Employer; or\n(d) at any time during or after the Employment Period, disparage the Employer or any of its shareholders, directors, officers, employees,\nor agents.\nFor purposes of this Section 8.2, the term “Post-Employment Period” means the two year period beginning on the date of termination of the\nEmployee’s employment with the Employer.\nEmployee acknowledges and agrees that Employee, while employed by the Employer, owes a fiduciary duty of loyalty, fidelity and allegiance\nto act at all times in the best interest of the Employer, to do no act which would intentionally injure the Employer’s business, interests, or reputation.\nIn keeping with Employee’s fiduciary duties owed to the Employer, Employee agrees that Employee will not knowingly become involved in a\nconflict of interest with the Employer or its affiliates, or upon discovery thereof, allow such a conflict to continue.\n9\nIf any covenant in this Section 8.2 is held to be unreasonable, arbitrary, or against public policy, such covenant will be considered to be\ndivisible with respect to scope, time, and geographic area, and such lesser scope, time, or geographic area, or all of them, as a court of competent\njurisdiction may determine to be reasonable, not arbitrary, and not against public policy, will be effective, binding, and enforceable against the\nEmployee. Nevertheless, if any of the aforesaid restrictions are found by a court having jurisdiction to be unreasonable or overly broad as to\ngeographic area or time, or otherwise unenforceable, the parties intend for the restrictions herein set forth to be modified by such courts so as to be\nreasonable and enforceable and, as so modified to be fully enforced.\nThe Employee will, while the covenant under this Section 8.2 is in effect, give notice to the Employer, within ten days after accepting any\nother employment, of the identity of the Employee’s employer. The Buyer or the Employer may notify such employer that the Employee is bound by\nthis Agreement and, at the Employer’s election, furnish such employer with a copy of this Agreement or relevant portions thereof.\n9. GENERAL PROVISIONS\n9.1 INJUNCTIVE RELIEF AND ADDITIONAL REMEDY\nThe Employee acknowledges that the injury that would be suffered by the Employer as a result of a breach of the provisions of this\nAgreement (including but not limited to any provision of Sections 7 and 8) would be irreparable and that an award of monetary damages to the\nEmployer for such a breach would be an inadequate remedy. Consequently, the Employer will have the right, in addition to any other rights it may\nhave, to obtain injunctive relief to restrain any breach or threatened breach or otherwise to specifically enforce any provision of this Agreement and\nthe Employer will not be obligated to post bond or other security in seeking such relief. Without limiting the Employer’s rights under this Section 9\nor any other remedies of the Employer, if the Employee breaches any of the provisions of Section 7 or 8, the Employer will have the right to cease\nmaking any payments otherwise due to the Employee under this Agreement.\n9.2 COVENANTS OF SECTIONS 7 AND 8 ARE ESSENTIAL AND INDEPENDENT COVENANTS\nThe covenants by the Employee in Sections 7 and 8 are essential elements of this Agreement, and without the Employee’s agreement to\ncomply with such covenants, the Employer would not have entered into this Agreement or employed or continued the employment of the Employee.\nThe Employer and the Employee have independently consulted their respective counsel and have been advised in all respects concerning the\nreasonableness and propriety of such covenants, with specific regard to the nature of the business conducted by the Employer.\nThe Employee’s covenants in Sections 7 and 8 are independent covenants and the existence of any claim by the Employee against the\nEmployer under this Agreement or otherwise, or against the Buyer, will not excuse the Employee’s breach of any covenant in Section 7 or 8.\n10\nIf the Employee’s employment hereunder expires or is terminated, this Agreement will continue in full force and effect as is necessary or\nappropriate to enforce the covenants and agreements of the Employee in Sections 7 and 8.\n9.3 REPRESENTATIONS AND WARRANTIES BY THE EMPLOYEE\nThe Employee represents and warrants to the Employer that the execution and delivery by the Employee of this Agreement do not, and\nthe performance by the Employee of the Employee’s obligations hereunder will not, with or without the giving of notice or the passage of time, or\nboth: (a) violate any judgment, writ, injunction, or order of any court, arbitrator, or governmental agency applicable to the Employee; or (b) conflict\nwith, result in the breach of any provisions of or the termination of, or constitute a default under, any agreement to which the Employee is a party or\nby which the Employee is or may be bound.\n9.4 OBLIGATIONS CONTINGENT ON PERFORMANCE\nThe obligations of the Employer hereunder, including its obligations to pay the compensation provided for herein, are contingent upon\nthe Employee’s performance of all the Employee’s obligations hereunder.\n9.5 WAIVER\nThe rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by either\nparty in exercising any right, power, or privilege under this Agreement will operate as a waiver of such right, power, or privilege, and no single or\npartial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of\nany other right, power, or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be\ndischarged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no\nwaiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one\nparty will be deemed to be a waiver of any obligation of that party or of the right of the party giving the notice or demand to take further action\nwithout notice or demand as provided in this Agreement.\n9.6 BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED\nThis Agreement will inure to the benefit of, and will be binding upon, the parties hereto and their respective successors, assigns, heirs,\nand legal representatives, including any entity with which the Employer may merge or consolidate or to which all or substantially all of its assets\nmay be transferred. The duties and covenants of the Employee under this Agreement, being personal, may not be delegated.\n9.7 NOTICES\nAll notices, consents, waivers, and other communications under this Agreement must be in writing and will be deemed to have been duly\ngiven when (a) delivered by hand (with written confirmation of receipt), (b) sent by facsimile (with written confirmation of receipt),\n11\nprovided that a copy is mailed by registered mail, return receipt requested, or (c) when received by the addressee, if sent by a nationally recognized\novernight delivery service (receipt requested), in each case to the appropriate addresses and facsimile numbers set forth below (or to any other\naddresses and facsimile numbers as a party may designate by notice to the other parties):\nIf to Employer:\nHub City Industries, L.L .C.\n500 Dover Blvd., Suite 100\nLafayette, LA 70503\nAttention: Earl Blackwell\nWith a copy to:\nFrank S. Slavich, III\nBabineaux, Poche, Anthony & Slavich, LLC\n1201 Camellia Blvd., Suite 300\nLafayette, LA 70508\nIf to the Employee:\nJohn Egle\n112 East Peck Blvd.\nLafayette, LA 70508\nWith a copy to:\nCharles Rush, Esq.\n202 Magnate Drive\nLafayette, LA 70508\n9.8 INDEMNIFICATION OF EMPLOYEE\nThe Employer will defend, indemnify, and hold harmless Employee if Employee is made a party to a proceeding because he is a party to\nthis Agreement against liability incurred in the proceeding, if he:\n(a) conducted himself in good faith;\n(b) Reasonably believed that his conduct was in or at least not opposed to the Company’s best interest; and\n(c) In the case of any criminal proceeding, had no reasonable cause to believe his conduct was unlawful.\n9.9 ENTIRE AGREEMENT: AMENDMENTS\nThis Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersede all prior\nagreements and understandings, oral or written, between the parties hereto with respect to the subject matter hereof. This Agreement may not be\namended orally, but only by an agreement in writing signed by the parties this Agreement.\n12\n9.10 GOVERNING LAW\nThis Agreement will be governed by the laws of the State of Louisiana without regard to conflicts of laws principles.\n9.11 JURISDICTION\nAny action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement will be brought\nagainst either of the parties in the courts of the State of Louisiana, Parish of Lafayette, or if it has or can acquire jurisdiction, in the United States\nDistrict Court for the Western District of Louisiana, and each of the parties consents to the jurisdiction of such courts (and of the appropriate\nappellate courts) in any such action or proceeding and waives any objection to venue laid therein. Process in any action or proceeding referred to in\nthe preceding sentence may be served on either party anywhere in the world.\n9.12 SECTION HEADINGS, CONSTRUCTION\nThe headings of Sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All\nreferences to “Section” or “Sections” refer to the corresponding Section or Sections of this Agreement unless otherwise specified. All words used in\nthis Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word\n“including” does not limit the preceding words or terms.\n9.13 SEVERABILITY\nIf any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this\nAgreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in\nfull force and effect to the extent not held invalid or unenforceable.\n9.14 COUNTERPARTS\nThis Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement\nand all of which, when taken together, will be deemed to constitute one and the same agreement.\n9.15 ATTORNEY’S FEES\nIn the event that there is any controversy or claim arising out of or relating to this Agreement, or to the interpretation, breach or\nenforcement thereof, and any action or proceeding is commenced to enforce the provisions of this Agreement, the prevailing party shall be entitled to\na reasonable attorney’s fee, costs and expenses.\n9.16 JOINT DRAFTING\nThe parties have participated jointly in negotiating and drafting this Agreement. If a question of interpretation arises, this Agreement\nshall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of\nthe authorship of any provision of this Agreement.\n13\n9.17 WAIVE OF JURY TRIAL\nTHE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO\nTHIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS, WHETHER NOW EXISTING OR HEREAFTER ARISING,\nAND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. THE PARTIES AGREE THAT ANY OF THEM MAY FILE A COPY\nOF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR\nAGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE TRIAL BY JURY AND THAT ANY PROCEEDING WHATSOEVER\nBETWEEN THEM RELATING TO THIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS SHALL INSTEAD BE\nTRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.\n9.18 TERMINATION OF PRIOR EMPLOYEMENT AGREEMENT\nThis Agreement hereby supersedes and replaces that certain Amended and Restated Employment, Non-Disclosure, and Non-Compete\nAgreement dated January 15, 2009 (the “Original Agreement”). The parties acknowledge and agree that the Original Agreement is terminated as of\nthe Effective Date of this Agreement.\nIN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date above first written above.\nEMPLOYER:\nHUB CITY INDUSTRIES, L.L.C\nBy: /s/ Michel B. Moreno\nName: Michel B. Moreno\nTitle: Managing Manger\nEMPLOYEE:\n/s/ John M. Egle\nJOHN M. EGLE\n14\nEXHIBIT A\nLOUISIANA PARISHES\nAcadia\nAllen\nAscension\nAssumption\nAvoyelles\nBeauregard\nBienville\nBossier\nCaddo\nCalcasieu\nCaldwell\nCameron\nCatahoula\nClaiborne\nConcordia\nDeSoto\nEast Baton Rouge\nEast Carroll\nEast Feliciana\nEvangeline\nFranklin\nGrant\nIberia\nIberville\nJackson\nJefferson\nJefferson Davis\nLafayette\nLafourche\nLaSalle\nLincoln\nLivingston\nMadison\nMorehouse\nNatchitoches\nOrleans\nOuachita\nPlaquemines\nPointe Coupee\nRapides\nRed River\nRichland\nSabine\nSt. Bernard\nSt. Charles\nSt. Helena\nSt. James\nSt. John the Baptist\nSt. Landry\nSt. Martin\nSt. Mary\nSt. Tammany\nTangipahoa\nTensas\nTerrebonne\nUnion\nVermillion\nVernon\nWashington\nWebster\nWest Baton Rouge\nWest Carroll\nWest Feliciana\nWinn\n15
ca06529cf8603634a1f50eecf6c8b402.pdf	effective_date jurisdiction party term	EX-10.4 6 g10835exv10w4.htm EX-10.4 MASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nExhibit 10.4\nMASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nbetween\nSYNOVUS FINANCIAL CORP.\nand\nTOTAL SYSTEM SERVICES, INC.\nDated November 30, 2007\nMASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nThis MASTER CONFIDENTIAL DISCLOSURE AGREEMENT (this “Agreement”), dated as of November 30, 2007, between Synovus\nFinancial Corp., a Georgia corporation (“Synovus”), and Total System Services, Inc., a Georgia corporation (“TSYS”).\nWHEREAS, Synovus, Columbus Bank and Trust Company and TSYS have entered into an Agreement and Plan of Distribution, dated as of\nOctober 25, 2007 (as the same may be amended from time to time, the “Distribution Agreement”), which provides, subject to the terms and\nconditions in the Distribution Agreement, among other things, for the distribution of the common stock of TSYS held by Synovus as of a certain\ndate to the shareholders of Synovus; and\nWHEREAS, as part of the foregoing, the parties further desire to enter into this Agreement to provide for the protection of their Confidential\nInformation (as defined below).\nNOW, THEREFORE, in consideration of the mutual promises of the parties, and of good and valuable consideration, it is agreed by and\nbetween the parties as follows:\nARTICLE I\nDEFINITIONS\nSection 1.1 Definitions. For the purpose of this Agreement the following capitalized terms are defined in this Section 1.1 and shall have the\nmeaning specified herein:\n(a) “Affiliated Company” means, with respect to Synovus, any entity that, after the Effective Time, directly or indirectly is controlled by, or\nis under common control with, Synovus, other than any Subsidiary of Synovus, and, with respect to TSYS, any entity that, after the Effective\nTime, directly or indirectly is controlled by, or is under common control with TSYS, other than any Subsidiary of TSYS. As used herein,\n“control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such\nentity, whether through the ownership of voting securities or other interests, by contract or otherwise. For the avoidance of doubt, TSYS is not\nan Affiliated Company of Synovus for purposes of this Agreement.\n(b) “Agreement” has the meaning set forth in the preamble to this Agreement.\n(c) “Ancillary Agreements” has the meaning given to it in the Distribution Agreement.\n(d) “Commercial Agreements” has the meaning given to it in Section 6.14.\n(e) “Confidential Information” means, subject to Section 6.14, information, Trade Secrets, technical data and know-how that is not\notherwise in the public domain, that is directly related to the operation of the business of the Disclosing Party and that is either (i) known to or\nin the possession of the Receiving Party as of the Effective Time or (ii) disclosed to the Receiving Party after the Effective Time in connection\nwith the performance under any Transaction Agreement or any Commercial Agreement.\nConfidential Information shall include, with respect to a Disclosing Party, all Customer Data of such Disclosing Party. Confidential\nInformation may include information relating to, by way of example, research, products, services, customers, markets, software,\ndevelopments, inventions, processes, designs, drawings, engineering, marketing or finances, and may be in writing, disclosed orally or learned\nby inspection of computer programming code, equipment or facilities.\n(i) Confidential Information of Third Parties that is known to, in the possession of or acquired by a Receiving Party pursuant to a\nrelationship with the Disclosing Party shall be deemed the Disclosing Party’s Confidential Information for purposes herein.\n(ii) Notwithstanding the foregoing provisions of this Section 1.1(d), Confidential Information shall exclude information that: (i) was\nin the Receiving Party’s lawful possession before receipt from the Disclosing Party and obtained from a source other than the Disclosing\nParty and other than solely through the prior relationship of the Disclosing Party and the Receiving Party before the Effective Time;\n(ii) information that was lawfully possessed by both the Receiving Party and the Disclosing Party prior to the Effective Time and that\npertains to both the business of the Receiving Party and the business of the Disclosing Party; (iii) is or becomes a matter of public\nknowledge through no fault of the Receiving Party and other than as a consequence of any unauthorized disclosure, act or omission by\nthe Receiving Party or its Representatives; (iv) is lawfully received by the Receiving Party from a Third Party without a duty of\nconfidentiality; (v) is independently developed by the Receiving Party without violating any obligations hereunder; or (vi) is disclosed\nby the Receiving Party with the Disclosing Party’s prior written approval.\n(f) “Confidentiality Period” means, (i) with respect to Confidential Information that is not a Trade Secret, five (5) years after the later to\noccur of (A) the Effective Time, and (B) the date of disclosure to the Receiving Party, and (ii) with respect to Trade Secrets, the later to\noccur of (A) the date that is five (5) years after the later to occur of the Effective Time and the date of disclosure to the Receiving Party, and\n(B) the date on which the relevant Trade Secret is no longer a Trade Secret.\n(g) “Customer Data” means all data and information pertaining to any customer of a Disclosing Party and submitted to the Receiving\nParty by the Disclosing Party, or received by the Receiving Party on behalf of the Disclosing Party.\n(h) “Disclosing Party” means the party disclosing the relevant Confidential Information.\n(i) “Distribution Agreement” has the meaning set forth in the recitals to this Agreement.\n(j) “Effective Time” has the meaning set forth in the Distribution Agreement.\n(k) “Express Purpose” means: (i) with respect to the Receiving Party or any of its Representatives, to perform or assist the Receiving\nParty to perform its obligations and exercise its rights under any of the Transaction Agreements, (ii) with respect to the Receiving Party or\nany of its Representatives, to perform or assist the Receiving Party to\n2\nperform its obligations and exercise its rights under any of the Commercial Agreements and (iii) with respect to a sublicensee permitted\nunder a Transaction Agreement or Commercial Agreement, to exercise its rights under such Transaction Agreement or Commercial\nAgreement.\n(l) “Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust,\na joint venture, an unincorporated organization, and a governmental entity or any department, agency or political subdivision thereof.\n(m) “Receiving Party” means the recipient of the relevant Confidential Information.\n(n) “Representatives” has the meaning set forth in Section 2.2 of this Agreement.\n(o) “Restricted Assignment Period” has the meaning given to it in the Distribution Agreement.\n(p) “Subsidiary” has the meaning given to it in the Distribution Agreement.\n(q) “Synovus” has the meaning set forth in the preamble to this Agreement.\n(r) “Third Party” means a Person other than Synovus and its Representatives and TSYS and its Representatives.\n(s) “Trade Secret” has the meaning given to it in the Georgia Trade Secrets Act, O.C .G.A. § 10-1 -761.\n(t) “Transaction Agreements” means the Distribution Agreement and the Ancillary Agreements.\n(u) “TSYS” has the meaning set forth in the preamble to this Agreement.\nARTICLE II\nCONFIDENTIALITY\nSection 2.1 Confidentiality and Non-Use Obligations. During the Confidentiality Period, the Receiving Party shall (i) protect the\nConfidential Information of the Disclosing Party by using the same degree of care, but no less than a reasonable degree of care, including the\nutilization of security devices or procedures designed to prevent unauthorized access to such materials, to prevent the unauthorized use,\ndissemination, or publication of the Confidential Information as the Receiving Party uses to protect its own confidential information of a like\nnature, (ii) not use such Confidential Information in violation of any use restriction in this Agreement, the Distribution Agreement or any other\nAncillary Agreement or any applicable Commercial Agreement, (iii) not disclose such Confidential Information to any Third Party, except,\nsubject to applicable law, as expressly permitted under this Agreement, the Distribution Agreement or any other Ancillary Agreement, any\napplicable Commercial Agreement or in any other agreements entered into between the parties in writing, without the prior written consent of the\nDisclosing Party and (iv) not use the Confidential Information to the commercial or competitive disadvantage of the Disclosing Party. Each party\nshall instruct its officers,\n3\nemployees, agents, contractors and professional advisors (a) of its confidentiality obligations hereunder and (b) not to attempt to circumvent any\nsuch security procedures and devices. Each party’s obligation under the preceding sentence may be satisfied by the use of its standard form of\nconfidentiality agreement, if the same reasonably accomplishes the purposes here intended.\nSection 2.2 Use and Disclosure. The Receiving Party may use the Confidential Information solely for the Express Purpose and disclose the\nConfidential Information to its directors, officers, employees, professional advisors, agents, contractors, Affiliated Companies and Subsidiaries,\nand their respective directors, officers, employees, agents, contractors and sublicensees (collectively, “Representatives”) solely where such\ndisclosure is reasonably necessary for the Express Purpose, and provided that the Receiving Party may also disclose the Confidential Information\nto its sublicensees only if permitted to do so under a Transaction Agreement or an applicable Commercial Agreement. The Receiving Party’s\ndisclosure to its Representatives shall be subject to applicable law and the sublicensee’s agreement in writing to confidentiality and non-use\nterms at least as protective of the Disclosing Party as the provisions of this Agreement. The Receiving Party shall use commercially reasonable\nefforts to ensure that with regard to its Representatives’ use and possession of Confidential Information, such Representatives observe\nconfidentiality obligations at least as protective as those in this Agreement and shall be liable if such Representatives cause a breach of this\nAgreement, and for such Representatives’ failure to comply with obligations at least as protective as those in this Agreement. Each Party agrees\nthat (i) disclosure or use of Confidential Information in breach of this Agreement could cause considerable commercial and financial detriment to\nthe Disclosing Party, (ii) damages may be inadequate compensation for breach of this Agreement and (iii) if any Confidential Information is\ndisclosed or used (or threatened to be disclosed or used) in breach of this Agreement, then the Disclosing Party may seek, in addition to any other\nremedies available to it, equitable relief (including but not limited to specific performance and injunction).\nSection 2.3 Compelled Disclosure. If the Receiving Party or any of its Representatives believes that it is or will be compelled by a court or\nother authority or the rules of a stock exchange to disclose Confidential Information of the Disclosing Party, it shall (i) give the Disclosing Party\nprompt written notice so that the Disclosing Party may take steps to oppose such disclosure, but in any event the Receiving Party shall not be\nprohibited from complying with such requirement; provided, however, the Receiving Party must disclose, and ensure that the Representative\ndiscloses, only the minimum Confidential Information (as applicable) and (ii) reasonably cooperate with the Disclosing Party in its attempts to\noppose such disclosure, provided that the Disclosing Party first agrees to pay the reasonable costs of the Receiving Party in connection therewith.\nSection 2.4 No Restriction on Disclosing Party. Subject to Section 2.7, nothing in this Agreement shall restrict the Disclosing Party from\nusing, disclosing, or disseminating its own Confidential Information in any way.\nSection 2.5 No Restriction on Reassignment. This Agreement shall not restrict reassignment of the Receiving Party’s employees.\n4\nSection 2.6 Third Party Agreements. Nothing in the Agreement supersedes any restriction imposed by Third Parties on their Confidential\nInformation, and there is no obligation on the Disclosing Party to conform Third Party agreements to the terms of this Agreement.\nSection 2.7 Information Security. The Receiving Party of any Customer Data of the Disclosing Party shall be responsible for establishing,\nimplementing, maintaining and performing a reasonable information security program (including physical security of physical items) that is\nreasonably designed to (i) ensure the security and confidentiality of such Customer Data, (ii) protect against any anticipated threats or hazards to\nthe security or integrity of such Customer Data, (iii) protect against unauthorized access to or use of such Customer Data that could result in\nsubstantial material harm to the Disclosing Party or any of its customers and (iv) ensure the proper disposal of such Customer Data. The\nDisclosing Party shall maintain reasonable security for its own systems, servers, and communications links as is reasonably designed to\n(a) protect the security and integrity of its Customer Data to the extent within the Disclosing Party’s control, and (b) protect against unauthorized\naccess to or use of the Receiving Party’s systems and servers on which Customer Data of the Disclosing Party is stored to the extent within the\nDisclosing Party’s control. The Receiving Party will (1) take appropriate action to address any incident of unauthorized access to Customer Data\nof the Disclosing Party and (2) notify the Disclosing Party as soon as possible of any incident of unauthorized access to Customer Data and any\nother breach in the Receiving Party’s security that materially affects the Disclosing Party or the Disclosing Party’s customers. Either party may\nchange its security procedures from time to time as commercially reasonable to address operations risks and concerns in compliance with the\nrequirements of this section.\nARTICLE III\nWARRANTY DISCLAIMER\nEACH PARTY ACKNOWLEDGES AND AGREES THAT ALL CONFIDENTIAL INFORMATION IS PROVIDED ON AN “AS IS,\nWHERE IS” BASIS AND THAT NEITHER PARTY NOR ANY OF ITS REPRESENTATIVES HAS MADE OR WILL MAKE ANY\nREPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION,\nANY IMPLIED REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,\nENFORCEABILITY OR NON-INFRINGEMENT, OR AS TO THE ACCURACY OR COMPLETENESS OF THE CONFIDENTIAL\nINFORMATION.\nARTICLE IV\nTERM AND TERMINATION\nSection 4.1 Term. This Agreement shall remain in full force and effect until the earlier to occur of: (i) the expiration of the last\nConfidentiality Period; and (ii) the termination of this Agreement by the mutual written agreement of the parties.\n5\nSection 4.2 Survival. Articles II (with respect to Confidential Information acquired or disclosed prior to the date of termination), III, IV, V, VI\nand VII shall survive any termination of this Agreement.\nSection 4.3 Return of Confidential Information.\n(a) Distribution or Ancillary Agreements. With respect to Confidential Information disclosed in connection with the Distribution\nAgreement or any Ancillary Agreement, upon the earlier to occur of: (i) the termination or expiration of this Agreement and (ii) the\ntermination of the Distribution Agreement or the whole or any part of any Ancillary Agreement, the Receiving Party shall (and shall procure\nthat its Affiliated Companies and Representatives shall) promptly but in no event later than thirty (30) days following a request made in\nwriting by the Disclosing Party: (x) return to the Disclosing Party or destroy (at the sole option of the Receiving Party) all Confidential\nInformation of the Disclosing Party in the possession or control of the Receiving Party (including, without limitation, all documents, records,\nnotebooks, data, reports, notes, compilations, computer files, data and programs, and similar repositories or materials and any and all copies or\nreproductions thereof), as directed by the Disclosing Party; provided, however, (1) the Confidential Information to be so returned or destroyed\nshall be limited to such Confidential Information that is not necessary for the performance by the Receiving Party under any then effective\nCommercial Agreement and (2) in case of a termination of the whole or part of any Ancillary Agreement (other than this Agreement), the\nConfidential Information to be so returned or destroyed shall be limited to such Confidential Information disclosed by the Disclosing Party in\nconnection with such terminated Ancillary Agreement, or part thereof, as the case may be; and (y) deliver to the Disclosing Party a certificate\nsigned by a duly authorized officer of the Receiving Party supervising such return and destruction, certifying such return or destruction in\naccordance with the provisions of this Agreement.\n(b) Commercial Agreements. With respect to Confidential Information disclosed in connection with any Commercial Agreement, upon the\ntermination or expiration of such Commercial Agreement, the Receiving Party shall (and shall procure that its Affiliated Companies and\nRepresentatives shall) promptly but in no event later than thirty (30) days following a request made in writing by the Disclosing Party:\n(x) return to the Disclosing Party or destroy (at the sole option of the Receiving Party) Confidential Information of the Disclosing Party in the\npossession or control of the Receiving Party (including, without limitation, all documents, records, notebooks, data, reports, notes,\ncompilations, computer files, data and programs, and similar repositories or materials and any and all copies or reproductions thereof), as\ndirected by the Disclosing Party; provided, however, the Confidential Information to be so returned or destroyed shall be limited to such\nConfidential Information disclosed by the Disclosing Party in connection with such terminated Commercial Agreement and shall not require\nthe destruction of any Confidential Information necessary for the performance of the Receiving Party under the Distribution Agreement, any\nAncillary Agreement or any other then effective Commercial Agreement; and (y) deliver to the Disclosing Party a certificate signed by a duly\nauthorized officer of the Receiving Party supervising such\n6\nreturn and destruction, certifying such return or destruction in accordance with the provisions of this Agreement.\n(c) Notwithstanding the foregoing provisions of Sections 4.3(a) and (b), the Receiving Party may retain Confidential Information if\nrequired to do so by applicable law, provided that the Receiving Party shall notify the Disclosing Party in writing of such obligation, and\n(A) may not use such retained Confidential Information for any purpose not strictly required to comply with such law, and (B) shall at the\nDisclosing Party’s option, return or destroy such retained Confidential Information as soon as practicable after it is no longer required by law\nto retain it.\nARTICLE V\nLIMITATION OF LIABILITY\nIN NO EVENT SHALL EITHER PARTY OR ITS SUBSIDIARIES OR AFFILIATED COMPANIES BE LIABLE TO THE OTHER PARTY\nOR ITS SUBSIDIARIES OR AFFILIATED COMPANIES FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR\nPUNITIVE DAMAGES OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING\nNEGLIGENCE) ARISING IN ANY WAY OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF\nTHE POSSIBILITY OF SUCH DAMAGES.\nARTICLE VI\nMISCELLANEOUS PROVISIONS\nSection 6.1 Dispute Resolution. Any dispute arising out of or relating to the performance, breach or interpretation of this Agreement shall be\nhandled in accordance with Section 5.5 of the Distribution Agreement.\nSection 6.2 Export Restrictions. Both parties shall adhere to all applicable laws, regulations and rules relating to the export of technical data,\nand shall not export or reexport any technical data, any products received from Disclosing Party, or the direct product of such technical data, to\nany proscribed country listed in such applicable laws, regulations and rules unless properly authorized.\nSection 6.3 No Implied Licenses. The Receiving Party acknowledges that the Confidential Information is the exclusive property of the\nDisclosing Party, and the Disclosing Party has the exclusive right, title and interest to its Confidential Information. Nothing contained in this\nAgreement shall be construed as conferring any rights by implication, estoppel or otherwise, or under any intellectual property right, other than\nthe rights expressly granted in this Agreement, to the Confidential Information. Neither party is required hereunder to furnish or disclose to the\nother any technical or other information.\nSection 6.4 Infringement Suits. Neither party shall have any obligation hereunder to institute any action or suit against Third Parties for\nmisappropriation of any of its Confidential Information or to defend any action or suit brought by a Third Party that alleges infringement of\n7\nany intellectual property rights by the Receiving Party’s authorized use of the Disclosing Party’s Confidential Information.\nSection 6.5 Entire Agreement. This Agreement, the Distribution Agreement, the other Ancillary Agreements, and the Commercial\nAgreements constitute the entire agreement between the parties with respect to the subject matter hereof and shall supersede all prior written and\noral and all contemporaneous oral agreements and understandings with respect to the subject matter hereof. Notwithstanding the foregoing, the\nparties agree that any agreements entered into between them after the Effective Time for the protection of specific Confidential Information shall\nsupersede the terms of this Agreement with respect to such Confidential Information.\nSection 6.6 Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of\nGeorgia as to all matters regardless of the laws that might otherwise govern under principles of conflicts of laws applicable thereto.\nSection 6.7 Descriptive Headings. The descriptive headings herein are inserted for convenience of reference only and are not intended to be\npart of or to affect the meaning or interpretation of this Agreement.\nSection 6.8 Notices. All notices and other communications hereunder shall be in writing and shall be deemed effectively given the earlier of\n(i) when received, (ii) when delivered personally, (iii) one (1) Business Day after being delivered by facsimile (with receipt of appropriate\nconfirmation) or (iv) one (1) Business Day after being deposited with an overnight courier service and addressed to the respective parties as\nfollows:\nif to Synovus:\nSynovus Financial Corp.\n1111 Bay Avenue\nSuite 500\nColumbus, GA 31901\nAttention: Chief Financial Officer\nTelecopy: (706) 649-4819\nif to TSYS:\nTotal System Services, Inc.\n1600 First Avenue\nColumbus, GA 31901\nAttention: Chief Financial Officer\nTelecopy: (706) 644-1725\nor to such other address as a party may request by notifying the other in writing. As used in this Section 6.8, “Business Day” means any day\nother than a Saturday, a Sunday or a day on which banking institutions located in the city of Columbus, Georgia are authorized or obligated by\nlaw or executive order to close.\n8\nSection 6.9 Assignment. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective legal\nrepresentatives and successors, and nothing in this Agreement, express or implied, is intended to confer upon any other Person any rights or\nremedies of any nature whatsoever under or by reason of this Agreement; provided, however, except as otherwise expressly provided for in this\nAgreement, this Agreement shall not be assignable, in whole or in part, by any party without the prior written consent of the other party, and any\nattempt to assign any rights or obligations arising under this Agreement without such consent shall be null and void; provided further, that a party\nmay assign this Agreement in connection with: (i) a merger transaction in which such party is not the surviving entity or (ii) the sale, transfer,\nexchange or other disposition by such party of all or substantially all of its assets, so long as, in either case, if such merger or asset sale\ntransaction occurs during the Restricted Assignment Period, the rating of the assignee, following the consummation of such merger or asset sale\ntransaction, shall be BBB- or better from Standard & Poor’s and Baa3 or better from Moody’s Investor Services, Inc. (or if Standard & Poor ’s or\nMoody’s Investor Services, Inc. shall change their rating designations after the date of this Agreement, a comparable rating or better under such\nnew designations), and upon the effectiveness of any such valid assignment the assigning party shall be released from all of its obligations under\nthis Agreement if the surviving entity of such merger or the transferee of such assets shall agree in writing, in form and substance reasonably\nsatisfactory to the other party, to be bound by the terms of this Agreement as if named as a “party” hereto. The Receiving Party’s assignment of\nthis Agreement shall not relieve it of any of its obligations hereunder.\nSection 6.10 Severability. If any term or other provision of this Agreement is determined by a nonappealable decision of a court,\nadministrative agency or binding arbitrator by any court or in any binding arbitration to be invalid, illegal or incapable of being enforced by any\nrule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the\neconomic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either party. Upon such\ndetermination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to\nmodify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the\ntransactions contemplated hereby are fulfilled to the fullest extent possible.\nSection 6.11 Failure or Indulgence not Waiver; Remedies Cumulative. No failure or delay on the part of either party hereto in the exercise\nof any right hereunder shall impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty or\nagreement herein, nor shall any single or partial exercise of any such right preclude other or further exercise thereof or of any other right. All\nrights and remedies existing under this Agreement are cumulative to, and not exclusive of, any rights or remedies otherwise available.\nSection 6.12 Amendment. No change or amendment will be made to this Agreement except by an instrument in writing signed on behalf of\neach of the parties to such agreement.\nSection 6.13 Counterparts. This Agreement may be executed in two or more counterparts, all of which, taken together, shall be considered\nto be one and the same instrument.\n9\nSection 6.14 Existing Agreements. Notwithstanding anything to the contrary in this Agreement, Confidential Information shall not include,\nand this Agreement shall not in any way apply to, any confidential information exchanged pursuant to those agreements between the parties\nand/or their respective Subsidiaries set forth on Schedule A hereto to the extent such agreements contain provisions governing the use and\ndisclosure of confidential information. Those agreements set forth on Schedule A that do not include such a provision are referred to herein as\nthe “Commercial Agreements” and the disclosure and use of confidential information under such Commercial Agreements is governed by the\nterms and conditions of this Agreement.\nSection 6.15 Effectiveness. This Agreement shall become effective upon the Effective Time and prior thereto shall be of no force or effect. If\nthe Distribution Agreement shall be terminated in accordance with its terms prior to the occurrence of the Effective Time, this Agreement and\nany actions or agreements contemplated hereby shall automatically be terminated and of no force or effect.\n[Signature page follows]\n10\nWHEREFORE, the parties have signed this Master Confidential Disclosure Agreement effective as of the Effective Time.\nSYNOVUS FINANCIAL CORP.\nTOTAL SYSTEM SERVICES, INC.\nBy: /s/ Thomas J. Prescott\nBy: /s/ James B. Lipham\nName: Thomas J. Prescott\nName: James B. Lipham\nTitle: Executive Vice President and Chief Financial Officer Title: Senior Executive Vice President and Chief Financial Officer\n[Signature page to Master Confidential Disclosure Agreement]	EX-10.4 6 g10835exv10w4.htm EX-10.4 MASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nMASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nbetween\nSYNOVUS FINANCIAL CORP.\nand\nTOTAL SYSTEM SERVICES, INC.\nDated November 30, 2007\nExhibit 10.4\nMASTER CONFIDENTTAL DISCLOSURE AGREEMENT\nThis MASTER CONFIDENTIAL DISCLOSURE AGREEMENT (this “Agreement”), dated as of November 30, 2007, between Synovus\nFinancial Corp., a Georgia corporation (“Synovus”), and Total System Services, Inc., a Georgia corporation (“ISYS”).\n \nWHEREAS, Synovus, Columbus Bank and Trust Company and TSY S have entered into an Agreement and Plan of Distribution, dated as of\nOctober 25, 2007 (as the same may be amended from time to time, the “Distribution Agreement”), which provides, subject to the terms and\nconditions in the Distribution Agreement, among other things, for the distribution of the common stock of TSY'S held by Synovus as of a certain\ndate to the shareholders of Synovus; and\n \nWHEREAS, as part of the foregoing, the parties further desire to enter into this Agreement to provide for the protection of their Confidential\nInformation (as defined below).\nNOW, THEREFORE, in consideration of the mutual promises of the parties, and of good and valuable consideration, it is agreed by and\nbetween the parties as follows:\nARTICLE 1\nDEFINITIONS\nSection 1.1 Definitions. For the purpose of this Agreement the following capitalized terms are defined in this Section 1.1 and shall have the\nmeaning specified herein:\n(a) “Affiliated Company” means, with respect to Synovus, any entity that, after the Effective Time, directly or indirectly is controlled by, or\nis under common control with, Synovus, other than any Subsidiary of Synovus, and, with respect to TSYS, any entity that, after the Effective\nTime, directly or indirectly is controlled by, or is under common control with TSYS, other than any Subsidiary of TSYS. As used herein,\n“control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such\nentity, whether through the ownership of voting securities or other interests, by contract or otherwise. For the avoidance of doubt, TSYS is not\nan Affiliated Company of Synovus for purposes of this Agreement.\n(b) “Agreement” has the meaning set forth in the preamble to this Agreement.\n(c) “Ancillary Agreements” has the meaning given to it in the Distribution Agreement.\n(d) “Commercial Agreements” has the meaning given to it in Section 6.14.\n(e) “Confidential Information” means, subject to Section 6.14, information, Trade Secrets, technical data and know-how that is not\notherwise in the public domain, that is directly related to the operation of the business of the Disclosing Party and that is either (i) known to or\nin the possession of the Receiving Party as of the Effective Time or (ii) disclosed to the Receiving Party after the Effective Time in connection\nwith the performance under any Transaction Agreement or any Commercial Agreement.\nConfidential Information shall include, with respect to a Disclosing Party, all Customer Data of such Disclosing Party. Confidential\nInformation may include information relating to, by way of example, research, products, services, customers, markets, software,\ndevelopments, inventions, processes, designs, drawings, engineering, marketing or finances, and may be in writing, disclosed orally or learned\nby inspection of computer programming code, equipment or facilities.\n(i) Confidential Information of Third Parties that is known to, in the possession of or acquired by a Receiving Party pursuant to a\nrelationship with the Disclosing Party shall be deemed the Disclosing Party’s Confidential Information for purposes herein.\n(ii) Notwithstanding the foregoing provisions of this Section 1.1(d), Confidential Information shall exclude information that: (i) was\nin the Receiving Party’s lawful possession before receipt from the Disclosing Party and obtained from a source other than the Disclosing\nParty and other than solely through the prior relationship of the Disclosing Party and the Receiving Party before the Effective Time;\n(ii) information that was lawfully possessed by both the Receiving Party and the Disclosing Party prior to the Effective Time and that\npertains to both the business of the Receiving Party and the business of the Disclosing Party; (iii) is or becomes a matter of public\nknowledge through no fault of the Receiving Party and other than as a consequence of any unauthorized disclosure, act or omission by\nthe Receiving Party or its Representatives; (iv) is lawfully received by the Receiving Party from a Third Party without a duty of\nconfidentiality; (v) is independently developed by the Receiving Party without violating any obligations hereunder; or (vi) is disclosed\nby the Receiving Party with the Disclosing Party’s prior written approval.\n(f) “Confidentiality Period” means, (i) with respect to Confidential Information that is not a Trade Secret, five (5) years after the later to\noccur of (A) the Effective Time, and (B) the date of disclosure to the Receiving Party, and (ii) with respect to Trade Secrets, the later to\noccur of (A) the date that is five (5) years after the later to occur of the Effective Time and the date of disclosure to the Receiving Party, and\n(B) the date on which the relevant Trade Secret is no longer a Trade Secret.\n \n(g) “Customer Data” means all data and information pertaining to any customer of a Disclosing Party and submitted to the Receiving\nParty by the Disclosing Party, or received by the Receiving Party on behalf of the Disclosing Party.\n(h) “Disclosing Party” means the party disclosing the relevant Confidential Information.\n(i) “Distribution Agreement” has the meaning set forth in the recitals to this Agreement.\n(j) “Effective Time” has the meaning set forth in the Distribution Agreement.\n(k) “Express Purpose” means: (i) with respect to the Receiving Party or any of its Representatives, to perform or assist the Receiving\nParty to perform its obligations and exercise its rights under any of the Transaction Agreements, (ii) with respect to the Receiving Party or\nany of its Representatives, to perform or assist the Receiving Party to\n2\nperform its obligations and exercise its rights under any of the Commercial Agreements and (iii) with respect to a sublicensee permitted\nunder a Transaction Agreement or Commercial Agreement, to exercise its rights under such Transaction Agreement or Commercial\nAgreement.\n(1) “Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust,\na joint venture, an unincorporated organization, and a governmental entity or any department, agency or political subdivision thereof.\n(m) “Receiving Party” means the recipient of the relevant Confidential Information.\n(n) “Representatives” has the meaning set forth in Section 2.2 of this Agreement.\n(o) “Restricted Assignment Period” has the meaning given to it in the Distribution Agreement.\n(p) “Subsidiary” has the meaning given to it in the Distribution Agreement.\n(q) “Synovus” has the meaning set forth in the preamble to this Agreement.\n(r) “Third Party” means a Person other than Synovus and its Representatives and TSYS and its Representatives.\n(s) “Trade Secret” has the meaning given to it in the Georgia Trade Secrets Act, O.C.G.A. § 10-1-761.\n(t) “Transaction Agreements” means the Distribution Agreement and the Ancillary Agreements.\n(u) “TSYS” has the meaning set forth in the preamble to this Agreement.\nARTICLE II\nCONFIDENTIALITY\nSection 2.1 Confidentiality and Non-Use Obligations. During the Confidentiality Period, the Receiving Party shall (i) protect the\nConfidential Information of the Disclosing Party by using the same degree of care, but no less than a reasonable degree of care, including the\nutilization of security devices or procedures designed to prevent unauthorized access to such materials, to prevent the unauthorized use,\ndissemination, or publication of the Confidential Information as the Receiving Party uses to protect its own confidential information of a like\nnature, (ii) not use such Confidential Information in violation of any use restriction in this Agreement, the Distribution Agreement or any other\nAncillary Agreement or any applicable Commercial Agreement, (iii) not disclose such Confidential Information to any Third Party, except,\nsubject to applicable law, as expressly permitted under this Agreement, the Distribution Agreement or any other Ancillary Agreement, any\napplicable Commercial Agreement or in any other agreements entered into between the parties in writing, without the prior written consent of the\nDisclosing Party and (iv) not use the Confidential Information to the commercial or competitive disadvantage of the Disclosing Party. Each party\nshall instruct its officers,\nemployees, agents, contractors and professional advisors (a) of its confidentiality obligations hereunder and (b) not to attempt to circumvent any\nsuch security procedures and devices. Each party’s obligation under the preceding sentence may be satisfied by the use of its standard form of\nconfidentiality agreement, if the same reasonably accomplishes the purposes here intended.\nSection 2.2 Use and Disclosure. The Receiving Party may use the Confidential Information solely for the Express Purpose and disclose the\nConfidential Information to its directors, officers, employees, professional advisors, agents, contractors, Affiliated Companies and Subsidiaries,\nand their respective directors, officers, employees, agents, contractors and sublicensees (collectively, “Representatives”) solely where such\ndisclosure is reasonably necessary for the Express Purpose, and provided that the Receiving Party may also disclose the Confidential Information\nto its sublicensees only if permitted to do so under a Transaction Agreement or an applicable Commercial Agreement. The Receiving Party’s\ndisclosure to its Representatives shall be subject to applicable law and the sublicensee’s agreement in writing to confidentiality and non-use\nterms at least as protective of the Disclosing Party as the provisions of this Agreement. The Receiving Party shall use commercially reasonable\nefforts to ensure that with regard to its Representatives’ use and possession of Confidential Information, such Representatives observe\nconfidentiality obligations at least as protective as those in this Agreement and shall be liable if such Representatives cause a breach of this\nAgreement, and for such Representatives’ failure to comply with obligations at least as protective as those in this Agreement. Each Party agrees\nthat (i) disclosure or use of Confidential Information in breach of this Agreement could cause considerable commercial and financial detriment to\nthe Disclosing Party, (ii) damages may be inadequate compensation for breach of this Agreement and (iii) if any Confidential Information is\ndisclosed or used (or threatened to be disclosed or used) in breach of this Agreement, then the Disclosing Party may seek, in addition to any other\nremedies available to it, equitable relief (including but not limited to specific performance and injunction).\nSection 2.3 Compelled Disclosure. If the Receiving Party or any of its Representatives believes that it is or will be compelled by a court or\nother authority or the rules of a stock exchange to disclose Confidential Information of the Disclosing Party, it shall (i) give the Disclosing Party\nprompt written notice so that the Disclosing Party may take steps to oppose such disclosure, but in any event the Receiving Party shall not be\nprohibited from complying with such requirement; provided, however, the Receiving Party must disclose, and ensure that the Representative\ndiscloses, only the minimum Confidential Information (as applicable) and (ii) reasonably cooperate with the Disclosing Party in its attempts to\noppose such disclosure, provided that the Disclosing Party first agrees to pay the reasonable costs of the Receiving Party in connection therewith.\nSection 2.4 No Restriction on Disclosing Party. Subject to Section 2.7, nothing in this Agreement shall restrict the Disclosing Party from\nusing, disclosing, or disseminating its own Confidential Information in any way.\nSection 2.5 No Restriction on Reassignment. This Agreement shall not restrict reassignment of the Receiving Party’s employees.\n4\nSection 2.6 Third Party Agreements. Nothing in the Agreement supersedes any restriction imposed by Third Parties on their Confidential\nInformation, and there is no obligation on the Disclosing Party to conform Third Party agreements to the terms of this Agreement.\nSection 2.7 Information Security. The Receiving Party of any Customer Data of the Disclosing Party shall be responsible for establishing,\nimplementing, maintaining and performing a reasonable information security program (including physical security of physical items) that is\nreasonably designed to (i) ensure the security and confidentiality of such Customer Data, (ii) protect against any anticipated threats or hazards to\nthe security or integrity of such Customer Data, (iii) protect against unauthorized access to or use of such Customer Data that could result in\nsubstantial material harm to the Disclosing Party or any of its customers and (iv) ensure the proper disposal of such Customer Data. The\nDisclosing Party shall maintain reasonable security for its own systems, servers, and communications links as is reasonably designed to\n(a) protect the security and integrity of its Customer Data to the extent within the Disclosing Party’s control, and (b) protect against unauthorized\naccess to or use of the Receiving Party’s systems and servers on which Customer Data of the Disclosing Party is stored to the extent within the\nDisclosing Party’s control. The Receiving Party will (1) take appropriate action to address any incident of unauthorized access to Customer Data\nof the Disclosing Party and (2) notify the Disclosing Party as soon as possible of any incident of unauthorized access to Customer Data and any\nother breach in the Receiving Party’s security that materially affects the Disclosing Party or the Disclosing Party’s customers. Either party may\nchange its security procedures from time to time as commercially reasonable to address operations risks and concerns in compliance with the\nrequirements of this section.\nARTICLE III\nWARRANTY DISCLAIMER\nEACH PARTY ACKNOWLEDGES AND AGREES THAT ALL CONFIDENTIAL INFORMATION IS PROVIDED ON AN “AS IS,\nWHERE IS” BASIS AND THAT NEITHER PARTY NOR ANY OF ITS REPRESENTATIVES HAS MADE OR WILL MAKE ANY\nREPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION,\nANY IMPLIED REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,\nENFORCEABILITY OR NON-INFRINGEMENT, OR AS TO THE ACCURACY OR COMPLETENESS OF THE CONFIDENTIAL\nINFORMATION.\nARTICLE IV\nTERM AND TERMINATION\nSection 4.1 Term. This Agreement shall remain in full force and effect until the earlier to occur of: (i) the expiration of the last\nConfidentiality Period; and (ii) the termination of this Agreement by the mutual written agreement of the parties.\n5\nSection 4.2 Survival. Articles II (with respect to Confidential Information acquired or disclosed prior to the date of termination), III, IV, V, VI\nand VII shall survive any termination of this Agreement.\nSection 4.3 Return of Confidential Information.\n(a) Distribution or Ancillary Agreements. With respect to Confidential Information disclosed in connection with the Distribution\nAgreement or any Ancillary Agreement, upon the earlier to occur of: (i) the termination or expiration of this Agreement and (ii) the\ntermination of the Distribution Agreement or the whole or any part of any Ancillary Agreement, the Receiving Party shall (and shall procure\nthat its Affiliated Companies and Representatives shall) promptly but in no event later than thirty (30) days following a request made in\nwriting by the Disclosing Party: (x) return to the Disclosing Party or destroy (at the sole option of the Receiving Party) all Confidential\nInformation of the Disclosing Party in the possession or control of the Receiving Party (including, without limitation, all documents, records,\nnotebooks, data, reports, notes, compilations, computer files, data and programs, and similar repositories or materials and any and all copies or\nreproductions thereof), as directed by the Disclosing Party; provided, however, (1) the Confidential Information to be so returned or destroyed\nshall be limited to such Confidential Information that is not necessary for the performance by the Receiving Party under any then effective\nCommercial Agreement and (2) in case of a termination of the whole or part of any Ancillary Agreement (other than this Agreement), the\nConfidential Information to be so returned or destroyed shall be limited to such Confidential Information disclosed by the Disclosing Party in\nconnection with such terminated Ancillary Agreement, or part thereof, as the case may be; and (y) deliver to the Disclosing Party a certificate\nsigned by a duly authorized officer of the Receiving Party supervising such return and destruction, certifying such return or destruction in\naccordance with the provisions of this Agreement.\n(b) Commercial Agreements. With respect to Confidential Information disclosed in connection with any Commercial Agreement, upon the\ntermination or expiration of such Commercial Agreement, the Receiving Party shall (and shall procure that its Affiliated Companies and\nRepresentatives shall) promptly but in no event later than thirty (30) days following a request made in writing by the Disclosing Party:\n(x) return to the Disclosing Party or destroy (at the sole option of the Receiving Party) Confidential Information of the Disclosing Party in the\npossession or control of the Receiving Party (including, without limitation, all documents, records, notebooks, data, reports, notes,\ncompilations, computer files, data and programs, and similar repositories or materials and any and all copies or reproductions thereof), as\ndirected by the Disclosing Party; provided, however, the Confidential Information to be so returned or destroyed shall be limited to such\nConfidential Information disclosed by the Disclosing Party in connection with such terminated Commercial Agreement and shall not require\nthe destruction of any Confidential Information necessary for the performance of the Receiving Party under the Distribution Agreement, any\nAncillary Agreement or any other then effective Commercial Agreement; and (y) deliver to the Disclosing Party a certificate signed by a duly\nauthorized officer of the Receiving Party supervising such\nreturn and destruction, certifying such return or destruction in accordance with the provisions of this Agreement.\n(c) Notwithstanding the foregoing provisions of Sections 4.3(a) and (b), the Receiving Party may retain Confidential Information if\nrequired to do so by applicable law, provided that the Receiving Party shall notify the Disclosing Party in writing of such obligation, and\n(A) may not use such retained Confidential Information for any purpose not strictly required to comply with such law, and (B) shall at the\nDisclosing Party’s option, return or destroy such retained Confidential Information as soon as practicable after it is no longer required by law\nto retain it.\nARTICLE V\nLIMITATION OF LIABILITY\nIN NO EVENT SHALL EITHER PARTY OR ITS SUBSIDIARIES OR AFFILIATED COMPANIES BE LIABLE TO THE OTHER PARTY\nOR ITS SUBSIDIARIES OR AFFILIATED COMPANIES FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR\nPUNITIVE DAMAGES OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING\nNEGLIGENCE) ARISING IN ANY WAY OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF\nTHE POSSIBILITY OF SUCH DAMAGES.\nARTICLE VI\nMISCELLANEOUS PROVISIONS\nSection 6.1 Dispute Resolution. Any dispute arising out of or relating to the performance, breach or interpretation of this Agreement shall be\nhandled in accordance with Section 5.5 of the Distribution Agreement.\nSection 6.2 Export Restrictions. Both parties shall adhere to all applicable laws, regulations and rules relating to the export of technical data,\nand shall not export or reexport any technical data, any products received from Disclosing Party, or the direct product of such technical data, to\nany proscribed country listed in such applicable laws, regulations and rules unless properly authorized.\nSection 6.3 No Implied Licenses. The Receiving Party acknowledges that the Confidential Information is the exclusive property of the\nDisclosing Party, and the Disclosing Party has the exclusive right, title and interest to its Confidential Information. Nothing contained in this\nAgreement shall be construed as conferring any rights by implication, estoppel or otherwise, or under any intellectual property right, other than\nthe rights expressly granted in this Agreement, to the Confidential Information. Neither party is required hereunder to furnish or disclose to the\nother any technical or other information.\nSection 6.4 Infringement Suits. Neither party shall have any obligation hereunder to institute any action or suit against Third Parties for\nmisappropriation of any of its Confidential Information or to defend any action or suit brought by a Third Party that alleges infringement of\n7\nany intellectual property rights by the Receiving Party’s authorized use of the Disclosing Party’s Confidential Information.\nSection 6.5 Entire Agreement. This Agreement, the Distribution Agreement, the other Ancillary Agreements, and the Commercial\nAgreements constitute the entire agreement between the parties with respect to the subject matter hereof and shall supersede all prior written and\noral and all contemporaneous oral agreements and understandings with respect to the subject matter hereof. Notwithstanding the foregoing, the\nparties agree that any agreements entered into between them after the Effective Time for the protection of specific Confidential Information shall\nsupersede the terms of this Agreement with respect to such Confidential Information.\nSection 6.6 Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of\nGeorgia as to all matters regardless of the laws that might otherwise govern under principles of conflicts of laws applicable thereto.\nSection 6.7 Descriptive Headings. The descriptive headings herein are inserted for convenience of reference only and are not intended to be\npart of or to affect the meaning or interpretation of this Agreement.\nSection 6.8 Notices. All notices and other communications hereunder shall be in writing and shall be deemed effectively given the earlier of\n(i) when received, (ii) when delivered personally, (iii) one (1) Business Day after being delivered by facsimile (with receipt of appropriate\nconfirmation) or (iv) one (1) Business Day after being deposited with an overnight courier service and addressed to the respective parties as\nfollows:\nif to Synovus:\nSynovus Financial Corp.\n1111 Bay Avenue\nSuite 500\nColumbus, GA 31901\nAttention:  Chief Financial Officer\nTelecopy: (706) 649-4819\nif to TSYS:\nTotal System Services, Inc.\n1600 First Avenue\nColumbus, GA 31901\nAttention:  Chief Financial Officer\nTelecopy: (706) 644-1725\nor to such other address as a party may request by notifying the other in writing. As used in this Section 6.8, “Business Day” means any day\nother than a Saturday, a Sunday or a day on which banking institutions located in the city of Columbus, Georgia are authorized or obligated by\nlaw or executive order to close.\nSection 6.9 Assignment. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective legal\nrepresentatives and successors, and nothing in this Agreement, express or implied, is intended to confer upon any other Person any rights or\nremedies of any nature whatsoever under or by reason of this Agreement; provided, however, except as otherwise expressly provided for in this\nAgreement, this Agreement shall not be assignable, in whole or in part, by any party without the prior written consent of the other party, and any\nattempt to assign any rights or obligations arising under this Agreement without such consent shall be null and void; provided further, that a party\nmay assign this Agreement in connection with: (i) a merger transaction in which such party is not the surviving entity or (ii) the sale, transfer,\nexchange or other disposition by such party of all or substantially all of its assets, so long as, in either case, if such merger or asset sale\ntransaction occurs during the Restricted Assignment Period, the rating of the assignee, following the consummation of such merger or asset sale\ntransaction, shall be BBB- or better from Standard & Poor’s and Baa3 or better from Moody’s Investor Services, Inc. (or if Standard & Poor’s or\nMoody’s Investor Services, Inc. shall change their rating designations after the date of this Agreement, a comparable rating or better under such\nnew designations), and upon the effectiveness of any such valid assignment the assigning party shall be released from all of its obligations under\nthis Agreement if the surviving entity of such merger or the transferee of such assets shall agree in writing, in form and substance reasonably\nsatisfactory to the other party, to be bound by the terms of this Agreement as if named as a “party” hereto. The Receiving Party’s assignment of\nthis Agreement shall not relieve it of any of its obligations hereunder.\nSection 6.10 Severability. If any term or other provision of this Agreement is determined by a nonappealable decision of a court,\nadministrative agency or binding arbitrator by any court or in any binding arbitration to be invalid, illegal or incapable of being enforced by any\nrule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the\neconomic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either party. Upon such\ndetermination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to\nmodify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the\ntransactions contemplated hereby are fulfilled to the fullest extent possible.\nSection 6.11 Failure or Indulgence not Waiver; Remedies Cumulative. No failure or delay on the part of either party hereto in the exercise\nof any right hereunder shall impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty or\nagreement herein, nor shall any single or partial exercise of any such right preclude other or further exercise thereof or of any other right. All\nrights and remedies existing under this Agreement are cumulative to, and not exclusive of, any rights or remedies otherwise available.\nSection 6.12 Amendment. No change or amendment will be made to this Agreement except by an instrument in writing signed on behalf of\neach of the parties to such agreement.\nSection 6.13 Counterparts. This Agreement may be executed in two or more counterparts, all of which, taken together, shall be considered\nto be one and the same instrument.\nSection 6.14 Existing Agreements. Notwithstanding anything to the contrary in this Agreement, Confidential Information shall not include,\nand this Agreement shall not in any way apply to, any confidential information exchanged pursuant to those agreements between the parties\nand/or their respective Subsidiaries set forth on Schedule A hereto to the extent such agreements contain provisions governing the use and\ndisclosure of confidential information. Those agreements set forth on Schedule A that do not include such a provision are referred to herein as\nthe “Commercial Agreements” and the disclosure and use of confidential information under such Commercial Agreements is governed by the\nterms and conditions of this Agreement.\nSection 6.15 Effectiveness. This Agreement shall become effective upon the Effective Time and prior thereto shall be of no force or effect. If\nthe Distribution Agreement shall be terminated in accordance with its terms prior to the occurrence of the Effective Time, this Agreement and\nany actions or agreements contemplated hereby shall automatically be terminated and of no force or effect.\n[Signature page follows]\n10\nWHEREFORE, the parties have signed this Master Confidential Disclosure Agreement effective as of the Effective Time.\nSYNOVUS FINANCIAL CORP. TOTAL SYSTEM SERVICES, INC.\nBy:  /s/ Thomas J. Prescott By:  /s/ James B. Lipham\nName: Thomas J. Prescott Name: James B. Lipham\nTitle: Executive Vice President and Chief Financial Officer Title: Senior Executive Vice President and Chief Financial Officer\n[Signature page to Master Confidential Disclosure Agreement]	EX-10.4 6 g10835exv10w4.htm EX-10.4 MASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nExhibit 10.4\nMASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nbetween\nSYNOVUS FINANCIAL CORP.\nand\nTOTAL SYSTEM SERVICES, INC.\nDated November 30, 2007\nMASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nThis MASTER CONFIDENTIAL DISCLOSURE AGREEMENT (this "Agreement"), dated as of November 30, 2007, between Synovus\nFinancial Corp., a Georgia corporation ("Synovus"), and Total System Services, Inc., a Georgia corporation ("TSYS").\nWHEREAS, Synovus, Columbus Bank and Trust Company and TSYS have entered into an Agreement and Plan of Distribution, dated as of\nOctober 25, 2007 (as the same may be amended from time to time, the "Distribution Agreement"), which provides, subject to the terms and\nconditions in the Distribution Agreement, among other things, for the distribution of the common stock of TSYS held by Synovus as of a certain\ndate to the shareholders of Synovus; and\nWHEREAS, as part of the foregoing, the parties further desire to enter into this Agreement to provide for the protection of their Confidential\nInformation (as defined below).\nNOW, THEREFORE, in consideration of the mutual promises of the parties, and of good and valuable consideration, it is agreed by and\nbetween the parties as follows:\nARTICLE I\nDEFINITIONS\nSection 1.1 Definitions. For the purpose of this Agreement the following capitalized terms are defined in this Section 1.1 and shall have the\nmeaning specified herein:\n(a) "Affiliated Company." means, with respect to Synovus, any entity that, after the Effective Time, directly or indirectly is controlled by, or\nis under common control with, Synovus, other than any Subsidiary of Synovus, and, with respect to TSYS, any entity that, after the Effective\nTime, directly or indirectly is controlled by, or is under common control with TSYS, other than any Subsidiary of TSYS. As used herein,\n"control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such\nentity, whether through the ownership of voting securities or other interests, by contract or otherwise. For the avoidance of doubt, TSYS is not\nan Affiliated Company of Synovus for purposes of this Agreement.\n(b) "Agreement" has the meaning set forth in the preamble to this Agreement.\n(c) "Ancillary Agreements" has the meaning given to it in the Distribution Agreement.\n(d) "Commercial Agreements" has the meaning given to it in Section 6.14.\n(e) "Confidential Information" means, subject to Section 6.14, information, Trade Secrets, technical data and know-how that is not\notherwise in the public domain, that is directly related to the operation of the business of the Disclosing Party and that is either (i) known to or\nin the possession of the Receiving Party as of the Effective Time or (ii) disclosed to the Receiving Party after the Effective Time in connection\nwith the performance under any Transaction Agreement or any Commercial Agreement.\nConfidential Information shall include, with respect to a Disclosing Party, all Customer Data of such Disclosing Party. Confidential\nInformation may include information relating to, by way of example, research, products, services, customers, markets, software,\ndevelopments, inventions, processes, designs, drawings, engineering, marketing or finances, and may be in writing, disclosed orally or learned\nby inspection of computer programming code, equipment or facilities.\n(i) Confidential Information of Third Parties that is known to, in the possession of or acquired by a Receiving Party pursuant to a\nrelationship with the Disclosing Party shall be deemed the Disclosing Party's Confidential Information for purposes herein.\n(ii) Notwithstanding the foregoing provisions of this Section 1.1(d), Confidential Information shall exclude information that: (i) was\nin the Receiving Party's lawful possession before receipt from the Disclosing Party and obtained from a source other than the Disclosing\nParty and other than solely through the prior relationship of the Disclosing Party and the Receiving Party before the Effective Time;\n(ii)\ninformation\nthat\nwas\nlawfully\npossessed\nby\nboth\nthe\nReceiving\nParty\nand\nthe\nDisclosing\nParty\nprior\nto\nthe\nEffective\nTime\nand\nthat\npertains to both the business of the Receiving Party and the business of the Disclosing Party; (iii) is or becomes a matter of public\nknowledge through no fault of the Receiving Party and other than as a consequence of any unauthorized disclosure, act or omission by\nthe\nReceiving Party or its Representatives; (iv) is lawfully received by the Receiving Party from a Third Party without a duty of\nconfidentiality; (v) is independently developed by the Receiving Party without violating any obligations hereunder; or (vi) is disclosed\nby the Receiving Party with the Disclosing Party's prior written approval.\n(f) "Confidentiality Period" means, (i) with respect to Confidential Information that is not a Trade Secret, five (5) years after the later to\noccur of (A) the Effective Time, and (B) the date of disclosure to the Receiving Party, and (ii) with respect to Trade Secrets, the later to\noccur of (A) the date that is five (5) years after the later to occur of the Effective Time and the date of disclosure to the Receiving Party, and\n(B) the date on which the relevant Trade Secret is no longer a Trade Secret.\n(g) "Customer Data" means all data and information pertaining to any customer of a Disclosing Party and submitted to the Receiving\nParty by the Disclosing Party, or received by the Receiving Party on behalf of the Disclosing Party.\n(h) "DisclosingParty means the party disclosing the relevant Confidential Information.\n(i) "Distribution Agreement" has the meaning set forth in the recitals to this Agreement.\n(j) "Effective Time" has the meaning set forth in the Distribution Agreement.\n(k) "Express Purpose" means: (i) with respect to the Receiving Party or any of its Representatives, to perform or assist the Receiving\nParty to perform its obligations and exercise its rights under any of the Transaction Agreements, (ii) with respect to the Receiving Party or\nany of its Representatives, to perform or assist the Receiving Party to\n2\nperform its obligations and exercise its rights under any of the Commercial Agreements and (iii) with respect to a sublicensee permitted\nunder a Transaction Agreement or Commercial Agreement, to exercise its rights under such Transaction Agreement or Commercial\nAgreement.\n(1) "Person" means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust,\na joint venture, an unincorporated organization, and a governmental entity or any department, agency or political subdivision thereof.\n(m) "ReceivingPart means the recipient of the relevant Confidential Information.\n(n) "Representatives" has the meaning set forth in Section 2.2 of this Agreement.\n(o) "Restricted Assignment Period" has the meaning given to it in the Distribution Agreement.\n(p) "Subsidiary." has the meaning given to it in the Distribution Agreement.\n(q) "Synovus" has the meaning set forth in the preamble to this Agreement.\n(r) "Third Party." means a Person other than Synovus and its Representatives and TSYS and its Representatives.\n(s) "Trade Secret" has the meaning given to it in the Georgia Trade Secrets Act, O.C.G.A. 8 10-1-761.\n(t) "Transaction Agreements" means the Distribution Agreement and the Ancillary Agreements.\n(u) "TSYS" has the meaning set forth in the preamble to this Agreement.\nARTICLE II\nCONFIDENTIALITY\nSection 2.1 Confidentiality and Non-Use Obligations. During the Confidentiality Period, the Receiving Party shall (i) protect the\nConfidential Information of the Disclosing Party by using the same degree of care, but no less than a reasonable degree of care, including the\nutilization of security devices or procedures designed to prevent unauthorized access to such materials, to prevent the unauthorized use,\ndissemination, or publication of the Confidential Information as the Receiving Party uses to protect its own confidential information of a like\nnature, (ii) not use such Confidential Information in violation of any use restriction in this Agreement, the Distribution Agreement or any other\nAncillary Agreement or any applicable Commercial Agreement, (iii) not disclose such Confidential Information to any Third Party, except,\nsubject to applicable law, as expressly permitted under this Agreement, the Distribution Agreement or any other Ancillary Agreement, any\napplicable Commercial Agreement or in any other agreements entered into between the parties in writing, without the prior written consent of the\nDisclosing Party and (iv) not use the Confidential Information to the commercial or competitive disadvantage of the Disclosing Party. Each party\nshall instruct its officers,\n3\nemployees, agents, contractors and professional advisors (a) of its confidentiality obligations hereunder and (b) not to attempt to circumvent any\nsuch security procedures and devices. Each party's obligation under the preceding sentence may be satisfied by the use of its standard form of\nconfidentiality agreement, if the same reasonably accomplishes the purposes here intended.\nSection 2.2 Use and Disclosure. The Receiving Party may use the Confidential Information solely for the Express Purpose and disclose the\nConfidential Information to its directors, officers, employees, professional advisors, agents, contractors, Affiliated Companies and Subsidiaries,\nand their respective directors, officers, employees, agents, contractors and sublicensees (collectively, "Representatives") solely where such\ndisclosure is reasonably necessary for the Express Purpose, and provided that the Receiving Party may also disclose the Confidential Information\nto\nits\nsublicensees\nonly\nif\npermitted\nto\ndo\nso\nunder\na\nTransaction\nAgreement\nor\nan\napplicable\nCommercial\nAgreement.\nThe\nReceiving\nParty's\ndisclosure to its Representatives shall be subject to applicable law and the sublicensee's agreement in writing to confidentiality and non-use\nterms at least as protective of the Disclosing Party as the provisions of this Agreement. The Receiving Party shall use commercially reasonable\nefforts to ensure that with regard to its Representatives' use and possession of Confidential Information, such Representatives observe\nconfidentiality obligations at least as protective as those in this Agreement and shall be liable if such Representatives cause a breach of this\nAgreement, and for such Representatives' failure to comply with obligations at least as protective as those in this Agreement. Each Party agrees\nthat (i) disclosure or use of Confidential Information in breach of this Agreement could cause considerable commercial and financial detriment to\nthe Disclosing Party, (ii) damages may be inadequate compensation for breach of this Agreement and (iii) if any Confidential Information is\ndisclosed or used (or threatened to be disclosed or used) in breach of this Agreement, then the Disclosing Party may seek, in addition to any\nother\nremedies available to it, equitable relief (including but not limited to specific performance and injunction).\nSection 2.3 Compelled Disclosure. If the Receiving Party or any of its Representatives believes that it is or will be compelled by a court or\nother\nauthority or the rules of a stock exchange to disclose Confidential Information of the Disclosing Party, it shall (i) give the Disclosing Party\nprompt written notice so that the Disclosing Party may take steps to oppose such disclosure, but in any event the Receiving Party shall not be\nprohibited from complying with such requirement; provided, however, the Receiving Party must disclose, and ensure that the Representative\ndiscloses, only the minimum Confidential Information (as applicable) and (ii) reasonably cooperate with the Disclosing Party in its attempts to\noppose such disclosure, provided that the Disclosing Party first agrees to pay the reasonable costs of the Receiving Party in connection therewith.\nSection 2.4 No Restriction on Disclosing Party. Subject to Section 2.7, nothing in this Agreement shall restrict the Disclosing Party from\nusing, disclosing, or disseminating its own Confidential Information in any way.\nSection 2.5 No Restriction on Reassignment. This Agreement shall not restrict reassignment of the Receiving Party's employees.\n4\nSection 2.6 Third Party Agreements. Nothing in the Agreement supersedes any restriction imposed by Third Parties on their Confidential\nInformation, and there is no obligation on the Disclosing Party to conform Third Party agreements to the terms of this Agreement.\nSection 2.7 Information Security. The Receiving Party of any Customer Data of the Disclosing Party shall be responsible for establishing,\nimplementing, maintaining and performing a reasonable information security program (including physical security of physical items) that is\nreasonably designed to (i) ensure the security and confidentiality of such Customer Data, (ii) protect against any anticipated threats or hazards to\nthe security or integrity of such Customer Data, (iii) protect against unauthorized access to or use of such Customer Data that could result in\nsubstantial material harm to the Disclosing Party or any of its customers and (iv) ensure the proper disposal of such Customer Data. The\nDisclosing Party shall maintain reasonable security for its own systems, servers, and communications links as is reasonably designed to\n(a) protect the security and integrity of its Customer Data to the extent within the Disclosing Party's control, and (b) protect against unauthorized\naccess to or use of the Receiving Party's systems and servers on which Customer Data of the Disclosing Party is stored to the extent within the\nDisclosing Party's control. The Receiving Party will (1) take appropriate action to address any incident of unauthorized access to Customer Data\nof the Disclosing Party and (2) notify the Disclosing Party as soon as possible of any incident of unauthorized access to Customer Data and any\nother breach in the Receiving Party's security that materially affects the Disclosing Party or the Disclosing Party's customers. Either party may\nchange its security procedures from time to time as commercially reasonable to address operations risks and concerns in compliance with the\nrequirements of this section.\nARTICLE III\nWARRANTY DISCLAIMER\nEACH PARTY ACKNOWLEDGES AND AGREES THAT ALL CONFIDENTIAL INFORMATION IS PROVIDED ON AN "AS\nIS,\nWHERE IS" BASIS AND THAT NEITHER PARTY NOR ANY OF ITS REPRESENTATIVES HAS MADE OR WILL MAKE ANY\nREPRESENTATION\nOR\nWARRANTY\nWHATSOEVER,\nEXPRESS,\nIMPLIED\nOR\nSTATUTORY,\nINCLUDING,\nWITHOUT\nLIMITATION,\nANY IMPLIED REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,\nENFORCEABILITY OR NON-INFRINGEMENT, OR AS TO THE ACCURACY OR COMPLETENESS OF THE CONFIDENTIAL\nINFORMATION.\nARTICLE IV\nTERM AND TERMINATION\nSection 4.1 Term. This Agreement shall remain in full force and effect until the earlier to occur of: (i) the expiration of the last\nConfidentiality Period; and (ii) the termination of this Agreement by the mutual written agreement of the parties.\n5\nSection 4.2 Survival. Articles II (with respect to Confidential Information acquired or disclosed prior to the date of termination), III, IV, V, VI\nand VII shall survive any termination of this Agreement.\nSection 4.3 Return of Confidential Information.\n(a) Distribution or Ancillary Agreements With respect to Confidential Information disclosed in connection with the Distribution\nAgreement or any Ancillary Agreement, upon the earlier to occur of: (i) the termination or expiration of this Agreement and (ii) the\ntermination of the Distribution Agreement or the whole or any part of any Ancillary Agreement, the Receiving Party shall (and shall procure\nthat its Affiliated Companies and Representatives shall) promptly but in no event later than thirty (30) days following a request made in\nwriting by the Disclosing Party: (x) return to the Disclosing Party or destroy (at the sole option of the Receiving Party) all Confidential\nInformation of the Disclosing Party in the possession or control of the Receiving Party (including, without limitation, all documents, records,\nnotebooks, data, reports, notes, compilations, computer files, data and programs, and similar repositories or materials and any and all\ncopies\nor\nreproductions thereof), as directed by the Disclosing Party; provided, however (1) the Confidential Information to be so returned or destroyed\nshall be limited to such Confidential Information that is not necessary for the performance by the Receiving Party under any then effective\nCommercial Agreement and (2) in case of a termination of the whole or part of any Ancillary Agreement (other than this Agreement), the\nConfidential Information to be so returned or destroyed shall be limited to such Confidential Information disclosed by the Disclosing Party\nin\nconnection with such terminated Ancillary Agreement, or part thereof, as the case may be; and (y) deliver to the Disclosing Party a certificate\nsigned by a duly authorized officer of the Receiving Party supervising such return and destruction, certifying such return or destruction in\naccordance with the provisions of this Agreement.\n(b) Commercial Agreements. With respect to Confidential Information disclosed in connection with any Commercial Agreement, upon the\ntermination or expiration of such Commercial Agreement, the Receiving Party shall (and shall procure that its Affiliated Companies and\nRepresentatives shall) promptly but in no event later than thirty (30) days following a request made in writing by the Disclosing Party:\n(x) return to the Disclosing Party or destroy (at the sole option of the Receiving Party) Confidential Information of the Disclosing Party in the\npossession or control of the Receiving Party (including, without limitation, all documents, records, notebooks, data, reports, notes,\ncompilations, computer files, data and programs, and similar repositories or materials and any and all copies or reproductions thereof), as\ndirected by the Disclosing Party; provided, however, the Confidential Information to be so returned or destroyed shall be limited to such\nConfidential Information disclosed by the Disclosing Party in connection with such terminated Commercial Agreement and shall not require\nthe destruction of any Confidentia Information necessary for the performance of the Receiving Party under the Distribution Agreement, any\nAncillary Agreement or any other then effective Commercial Agreement; and (y) deliver to the Disclosing Party a certificate signed by a duly\nauthorized officer of the Receiving Party supervising such\n6\nreturn and destruction, certifying such return or destruction in accordance with the provisions of this Agreement.\n(c) Notwithstanding the foregoing provisions of Sections 4.3(a) and (b), the Receiving Party may retain Confidential Information if\nrequired to do so by applicable law, provided that the Receiving Party shall notify the Disclosing Party in writing of such obligation, and\n(A) may not use such retained Confidential Information for any purpose not strictly required to comply with such law, and (B) shall at the\nDisclosing Party's option, return or destroy such retained Confidential Information as soon as practicable after it is no longer required by law\nto retain it.\nARTICLE V\nLIMITATION OF LIABILITY\nIN NO EVENT SHALL EITHER PARTY OR ITS SUBSIDIARIES OR AFFILIATED COMPANIES BE LIABLE TO THE OTHER PARTY\nOR ITS SUBSIDIARIES OR AFFILIATED COMPANIES FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR\nPUNITIVE DAMAGES OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING\nNEGLIGENCE) ARISING IN ANY WAY OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF\nTHE POSSIBILITY OF SUCH DAMAGES.\nARTICLE VI\nMISCELLANEOUS PROVISIONS\nSection 6.1 Dispute Resolution. Any dispute arising out of or relating to the performance, breach or interpretation of this Agreement shall be\nhandled in accordance with Section 5.5 of the Distribution Agreement.\nSection 6.2 Export Restrictions. Both parties shall adhere to all applicable laws, regulations and rules relating to the export of technical data,\nand\nshall not export or reexport any technical data, any products received from Disclosing Party, or the direct product of such technical data, to\nany proscribed country listed in such applicable laws, regulations and rules unless properly authorized.\nSection 6.3 No Implied Licenses. The Receiving Party acknowledges that the Confidential Information is the exclusive property of the\nDisclosing Party, and the Disclosing Party has the exclusive right, title and interest to its Confidential Information. Nothing contained in this\nAgreement shall be construed as conferring any rights by implication, estoppel or otherwise, or under any intellectual property right, other than\nthe\nrights expressly granted in this Agreement, to the Confidential Information. Neither party is required hereunder to furnish or disclose to the\nother any technical or other information.\nSection 6.4 Infringement Suits. Neither party shall have any obligation hereunder to institute any action or suit against Third Parties for\nmisappropriation of any of its Confidentia Information or to defend any action or suit brought by a Third Party that alleges infringement of\n7\nany intellectual property rights by the Receiving Party's authorized use of the Disclosing Party's Confidential Information.\nSection 6.5 Entire Agreement. This Agreement, the Distribution Agreement, the other Ancillary Agreements, and the Commercial\nAgreements constitute the entire agreement between the parties with respect to the subject matter hereof and shall supersede all prior written and\noral and all contemporaneous oral agreements and understandings with respect to the subject matter hereof. Notwithstanding the foregoing, the\nparties agree that any agreements entered into between them after the Effective Time for the protection of specific Confidential Information shall\nsupersede the terms of this Agreement with respect to such Confidential Information.\nSection 6.6 Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of\nGeorgia as to all matters regardless of the laws that might otherwise govern under principles of conflicts of laws applicable thereto.\nSection 6.7 Descriptive Headings. The descriptive headings herein are inserted for convenience of reference only and are not intended to\nbe\npart of or to affect the meaning or interpretation of this Agreement.\nSection 6.8 Notices. All notices and other communications hereunder shall be in writing and shall be deemed effectively given the earlier of\n(i) when received, (ii) when delivered personally, (iii) one (1) Business Day after being delivered by facsimile (with receipt of appropriate\nconfirmation) or (iv) one (1) Business Day after being deposited with an overnight courier service and addressed to the respective parties as\nfollows:\nif to Synovus:\nSynovus Financial Corp.\n1111 Bay Avenue\nSuite 500\nColumbus, GA 31901\nAttention: Chief Financial Officer\nTelecopy: (706) 649-4819\nif to TSYS:\nTotal System Services, Inc.\n1600 First Avenue\nColumbus, GA 31901\nAttention: Chief Financial Officer\nTelecopy: (706) 644-1725\nor to such other address as a party may request by notifying the other in writing. As used in this Section 6.8, "Business Day." means any day\nother than a Saturday, a Sunday or a day on which banking institutions located in the city of Columbus, Georgia are authorized or obligated by\nlaw or executive order to close.\n8\nSection 6.9 Assignment. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective legal\nrepresentatives and successors, and nothing in this Agreement, express or implied, is intended to confer upon any other Person any rights or\nremedies of any nature whatsoever under or by reason of this Agreement; provided, however, except as otherwise expressly provided for in\nthis\nAgreement, this Agreement shall not be assignable, in whole or in part, by any party without the prior written consent of the other party, and any\nattempt to assign any rights or obligations arising under this Agreement without such consent shall be null and void; provided further, that a party\nmay assign this Agreement in connection with: (i) a merger transaction in which such party is not the surviving entity or (ii) the sale, transfer,\nexchange or other disposition by such party of all or substantially all of its assets, so long as, in either case, if such merger or asset sale\ntransaction occurs during the Restricted Assignment Period, the rating of the assignee, following the consummation of such merger or asset sale\ntransaction, shall be BBB- or better from Standard & Poor's and Baa3 or better from Moody's Investor Services, Inc. (or if Standard & Poor's or\nMoody's Investor Services, Inc. shall change their rating designations after the date of this Agreement, a comparable rating or better under such\nnew\ndesignations), and upon the effectiveness of any such valid assignment the assigning party shall be released from all of its obligations under\nthis Agreement if the surviving entity of such merger or the transferee of such assets shall agree in writing, in form and substance reasonably\nsatisfactory to the other party, to be bound by the terms of this Agreement as if named as a "party" hereto. The Receiving Party's assignment\nof\nthis Agreement shall not relieve it of any of its obligations hereunder.\nSection 6.10 Severability. If any term or other provision of this Agreement is determined by a nonappealable decision of a court,\nadministrative agency or binding arbitrator by any court or in any binding arbitration to be invalid, illegal or incapable of being enforced by any\nrule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the\neconomic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either party. Upon such\ndetermination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith\nto\nmodify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the\ntransactions contemplated hereby are fulfilled to the fullest extent possible\nSection\n6.11\nFailure\nor\nIndulgence\nnot\nWaiver;\nRemedies\nCumulative.\nNo\nfailure\nor\ndelay\non\nthe\npart\nof\neither\nparty\nhereto\nin\nthe\nexercise\nof any right hereunder shall impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty or\nagreement herein, nor shall any single or partial exercise of any such right preclude other or further exercise thereof or of any other right. All\nrights and remedies existing under this Agreement are cumulative to, and not exclusive of, any rights or remedies otherwise available.\nSection 6.12 Amendment. No change or amendment will be made to this Agreement except by an instrument in writing signed on behalf of\neach of the parties to such agreement.\nSection 6.13 Counterparts. This Agreement may be executed in two or more counterparts, all of which, taken together, shall be considered\nto be one and the same instrument.\n9\nSection 6.14 Existing Agreements. Notwithstanding anything to the contrary in this Agreement, Confidential Information shall not include,\nand this Agreement shall not in any way apply to, any confidential information exchanged pursuant to those agreements between the parties\nand/or their respective Subsidiaries set forth on Schedule A hereto to the extent such agreements contain provisions governing the use and\ndisclosure of confidential information. Those agreements set forth on Schedule A that do not include such a provision are referred to herein as\nthe "Commercial Agreements" and the disclosure and use of confidential information under such Commercial Agreements is governed by the\nterms and conditions of this Agreement.\nSection 6.15 Effectiveness. This Agreement shall become effective upon the Effective Time and prior thereto shall be of no force or effect. If\nthe\nDistribution Agreement shall be terminated in accordance with its terms prior to the occurrence of the Effective Time, this Agreement and\nany actions or agreements contemplated hereby shall automatically be terminated and of no force or effect.\n[Signature page follows]\n10\nWHEREFORE, the parties have signed this Master Confidential Disclosure Agreement effective as of the Effective Time.\nSYNOVUS FINANCIAL CORP.\nTOTAL SYSTEM SERVICES, INC.\nBy:\n/s/ Thomas J. Prescott\nBy:\n/s/ James B. Lipham\nName: Thomas J. Prescott\nName: James B. Lipham\nTitle: Executive Vice President and Chief Financial Officer Title: Senior Executive Vice President and Chief Financial Officer\n[Signature page to Master Confidential Disclosure Agreement]	EX-10.4 6 g10835exv10w4.htm EX-10.4 MASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nExhibit 10.4\nMASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nbetween\nSYNOVUS FINANCIAL CORP.\nand\nTOTAL SYSTEM SERVICES, INC.\nDated November 30, 2007\nMASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nThis MASTER CONFIDENTIAL DISCLOSURE AGREEMENT (this “Agreement”), dated as of November 30, 2007, between Synovus\nFinancial Corp., a Georgia corporation (“Synovus”), and Total System Services, Inc., a Georgia corporation (“TSYS”).\nWHEREAS, Synovus, Columbus Bank and Trust Company and TSYS have entered into an Agreement and Plan of Distribution, dated as of\nOctober 25, 2007 (as the same may be amended from time to time, the “Distribution Agreement”), which provides, subject to the terms and\nconditions in the Distribution Agreement, among other things, for the distribution of the common stock of TSYS held by Synovus as of a certain\ndate to the shareholders of Synovus; and\nWHEREAS, as part of the foregoing, the parties further desire to enter into this Agreement to provide for the protection of their Confidential\nInformation (as defined below).\nNOW, THEREFORE, in consideration of the mutual promises of the parties, and of good and valuable consideration, it is agreed by and\nbetween the parties as follows:\nARTICLE I\nDEFINITIONS\nSection 1.1 Definitions. For the purpose of this Agreement the following capitalized terms are defined in this Section 1.1 and shall have the\nmeaning specified herein:\n(a) “Affiliated Company” means, with respect to Synovus, any entity that, after the Effective Time, directly or indirectly is controlled by, or\nis under common control with, Synovus, other than any Subsidiary of Synovus, and, with respect to TSYS, any entity that, after the Effective\nTime, directly or indirectly is controlled by, or is under common control with TSYS, other than any Subsidiary of TSYS. As used herein,\n“control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such\nentity, whether through the ownership of voting securities or other interests, by contract or otherwise. For the avoidance of doubt, TSYS is not\nan Affiliated Company of Synovus for purposes of this Agreement.\n(b) “Agreement” has the meaning set forth in the preamble to this Agreement.\n(c) “Ancillary Agreements” has the meaning given to it in the Distribution Agreement.\n(d) “Commercial Agreements” has the meaning given to it in Section 6.14.\n(e) “Confidential Information” means, subject to Section 6.14, information, Trade Secrets, technical data and know-how that is not\notherwise in the public domain, that is directly related to the operation of the business of the Disclosing Party and that is either (i) known to or\nin the possession of the Receiving Party as of the Effective Time or (ii) disclosed to the Receiving Party after the Effective Time in connection\nwith the performance under any Transaction Agreement or any Commercial Agreement.\nConfidential Information shall include, with respect to a Disclosing Party, all Customer Data of such Disclosing Party. Confidential\nInformation may include information relating to, by way of example, research, products, services, customers, markets, software,\ndevelopments, inventions, processes, designs, drawings, engineering, marketing or finances, and may be in writing, disclosed orally or learned\nby inspection of computer programming code, equipment or facilities.\n(i) Confidential Information of Third Parties that is known to, in the possession of or acquired by a Receiving Party pursuant to a\nrelationship with the Disclosing Party shall be deemed the Disclosing Party’s Confidential Information for purposes herein.\n(ii) Notwithstanding the foregoing provisions of this Section 1.1(d), Confidential Information shall exclude information that: (i) was\nin the Receiving Party’s lawful possession before receipt from the Disclosing Party and obtained from a source other than the Disclosing\nParty and other than solely through the prior relationship of the Disclosing Party and the Receiving Party before the Effective Time;\n(ii) information that was lawfully possessed by both the Receiving Party and the Disclosing Party prior to the Effective Time and that\npertains to both the business of the Receiving Party and the business of the Disclosing Party; (iii) is or becomes a matter of public\nknowledge through no fault of the Receiving Party and other than as a consequence of any unauthorized disclosure, act or omission by\nthe Receiving Party or its Representatives; (iv) is lawfully received by the Receiving Party from a Third Party without a duty of\nconfidentiality; (v) is independently developed by the Receiving Party without violating any obligations hereunder; or (vi) is disclosed\nby the Receiving Party with the Disclosing Party’s prior written approval.\n(f) “Confidentiality Period” means, (i) with respect to Confidential Information that is not a Trade Secret, five (5) years after the later to\noccur of (A) the Effective Time, and (B) the date of disclosure to the Receiving Party, and (ii) with respect to Trade Secrets, the later to\noccur of (A) the date that is five (5) years after the later to occur of the Effective Time and the date of disclosure to the Receiving Party, and\n(B) the date on which the relevant Trade Secret is no longer a Trade Secret.\n(g) “Customer Data” means all data and information pertaining to any customer of a Disclosing Party and submitted to the Receiving\nParty by the Disclosing Party, or received by the Receiving Party on behalf of the Disclosing Party.\n(h) “Disclosing Party” means the party disclosing the relevant Confidential Information.\n(i) “Distribution Agreement” has the meaning set forth in the recitals to this Agreement.\n(j) “Effective Time” has the meaning set forth in the Distribution Agreement.\n(k) “Express Purpose” means: (i) with respect to the Receiving Party or any of its Representatives, to perform or assist the Receiving\nParty to perform its obligations and exercise its rights under any of the Transaction Agreements, (ii) with respect to the Receiving Party or\nany of its Representatives, to perform or assist the Receiving Party to\n2\nperform its obligations and exercise its rights under any of the Commercial Agreements and (iii) with respect to a sublicensee permitted\nunder a Transaction Agreement or Commercial Agreement, to exercise its rights under such Transaction Agreement or Commercial\nAgreement.\n(l) “Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust,\na joint venture, an unincorporated organization, and a governmental entity or any department, agency or political subdivision thereof.\n(m) “Receiving Party” means the recipient of the relevant Confidential Information.\n(n) “Representatives” has the meaning set forth in Section 2.2 of this Agreement.\n(o) “Restricted Assignment Period” has the meaning given to it in the Distribution Agreement.\n(p) “Subsidiary” has the meaning given to it in the Distribution Agreement.\n(q) “Synovus” has the meaning set forth in the preamble to this Agreement.\n(r) “Third Party” means a Person other than Synovus and its Representatives and TSYS and its Representatives.\n(s) “Trade Secret” has the meaning given to it in the Georgia Trade Secrets Act, O.C .G.A. § 10-1 -761.\n(t) “Transaction Agreements” means the Distribution Agreement and the Ancillary Agreements.\n(u) “TSYS” has the meaning set forth in the preamble to this Agreement.\nARTICLE II\nCONFIDENTIALITY\nSection 2.1 Confidentiality and Non-Use Obligations. During the Confidentiality Period, the Receiving Party shall (i) protect the\nConfidential Information of the Disclosing Party by using the same degree of care, but no less than a reasonable degree of care, including the\nutilization of security devices or procedures designed to prevent unauthorized access to such materials, to prevent the unauthorized use,\ndissemination, or publication of the Confidential Information as the Receiving Party uses to protect its own confidential information of a like\nnature, (ii) not use such Confidential Information in violation of any use restriction in this Agreement, the Distribution Agreement or any other\nAncillary Agreement or any applicable Commercial Agreement, (iii) not disclose such Confidential Information to any Third Party, except,\nsubject to applicable law, as expressly permitted under this Agreement, the Distribution Agreement or any other Ancillary Agreement, any\napplicable Commercial Agreement or in any other agreements entered into between the parties in writing, without the prior written consent of the\nDisclosing Party and (iv) not use the Confidential Information to the commercial or competitive disadvantage of the Disclosing Party. Each party\nshall instruct its officers,\n3\nemployees, agents, contractors and professional advisors (a) of its confidentiality obligations hereunder and (b) not to attempt to circumvent any\nsuch security procedures and devices. Each party’s obligation under the preceding sentence may be satisfied by the use of its standard form of\nconfidentiality agreement, if the same reasonably accomplishes the purposes here intended.\nSection 2.2 Use and Disclosure. The Receiving Party may use the Confidential Information solely for the Express Purpose and disclose the\nConfidential Information to its directors, officers, employees, professional advisors, agents, contractors, Affiliated Companies and Subsidiaries,\nand their respective directors, officers, employees, agents, contractors and sublicensees (collectively, “Representatives”) solely where such\ndisclosure is reasonably necessary for the Express Purpose, and provided that the Receiving Party may also disclose the Confidential Information\nto its sublicensees only if permitted to do so under a Transaction Agreement or an applicable Commercial Agreement. The Receiving Party’s\ndisclosure to its Representatives shall be subject to applicable law and the sublicensee’s agreement in writing to confidentiality and non-use\nterms at least as protective of the Disclosing Party as the provisions of this Agreement. The Receiving Party shall use commercially reasonable\nefforts to ensure that with regard to its Representatives’ use and possession of Confidential Information, such Representatives observe\nconfidentiality obligations at least as protective as those in this Agreement and shall be liable if such Representatives cause a breach of this\nAgreement, and for such Representatives’ failure to comply with obligations at least as protective as those in this Agreement. Each Party agrees\nthat (i) disclosure or use of Confidential Information in breach of this Agreement could cause considerable commercial and financial detriment to\nthe Disclosing Party, (ii) damages may be inadequate compensation for breach of this Agreement and (iii) if any Confidential Information is\ndisclosed or used (or threatened to be disclosed or used) in breach of this Agreement, then the Disclosing Party may seek, in addition to any other\nremedies available to it, equitable relief (including but not limited to specific performance and injunction).\nSection 2.3 Compelled Disclosure. If the Receiving Party or any of its Representatives believes that it is or will be compelled by a court or\nother authority or the rules of a stock exchange to disclose Confidential Information of the Disclosing Party, it shall (i) give the Disclosing Party\nprompt written notice so that the Disclosing Party may take steps to oppose such disclosure, but in any event the Receiving Party shall not be\nprohibited from complying with such requirement; provided, however, the Receiving Party must disclose, and ensure that the Representative\ndiscloses, only the minimum Confidential Information (as applicable) and (ii) reasonably cooperate with the Disclosing Party in its attempts to\noppose such disclosure, provided that the Disclosing Party first agrees to pay the reasonable costs of the Receiving Party in connection therewith.\nSection 2.4 No Restriction on Disclosing Party. Subject to Section 2.7, nothing in this Agreement shall restrict the Disclosing Party from\nusing, disclosing, or disseminating its own Confidential Information in any way.\nSection 2.5 No Restriction on Reassignment. This Agreement shall not restrict reassignment of the Receiving Party’s employees.\n4\nSection 2.6 Third Party Agreements. Nothing in the Agreement supersedes any restriction imposed by Third Parties on their Confidential\nInformation, and there is no obligation on the Disclosing Party to conform Third Party agreements to the terms of this Agreement.\nSection 2.7 Information Security. The Receiving Party of any Customer Data of the Disclosing Party shall be responsible for establishing,\nimplementing, maintaining and performing a reasonable information security program (including physical security of physical items) that is\nreasonably designed to (i) ensure the security and confidentiality of such Customer Data, (ii) protect against any anticipated threats or hazards to\nthe security or integrity of such Customer Data, (iii) protect against unauthorized access to or use of such Customer Data that could result in\nsubstantial material harm to the Disclosing Party or any of its customers and (iv) ensure the proper disposal of such Customer Data. The\nDisclosing Party shall maintain reasonable security for its own systems, servers, and communications links as is reasonably designed to\n(a) protect the security and integrity of its Customer Data to the extent within the Disclosing Party’s control, and (b) protect against unauthorized\naccess to or use of the Receiving Party’s systems and servers on which Customer Data of the Disclosing Party is stored to the extent within the\nDisclosing Party’s control. The Receiving Party will (1) take appropriate action to address any incident of unauthorized access to Customer Data\nof the Disclosing Party and (2) notify the Disclosing Party as soon as possible of any incident of unauthorized access to Customer Data and any\nother breach in the Receiving Party’s security that materially affects the Disclosing Party or the Disclosing Party’s customers. Either party may\nchange its security procedures from time to time as commercially reasonable to address operations risks and concerns in compliance with the\nrequirements of this section.\nARTICLE III\nWARRANTY DISCLAIMER\nEACH PARTY ACKNOWLEDGES AND AGREES THAT ALL CONFIDENTIAL INFORMATION IS PROVIDED ON AN “AS IS,\nWHERE IS” BASIS AND THAT NEITHER PARTY NOR ANY OF ITS REPRESENTATIVES HAS MADE OR WILL MAKE ANY\nREPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION,\nANY IMPLIED REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,\nENFORCEABILITY OR NON-INFRINGEMENT, OR AS TO THE ACCURACY OR COMPLETENESS OF THE CONFIDENTIAL\nINFORMATION.\nARTICLE IV\nTERM AND TERMINATION\nSection 4.1 Term. This Agreement shall remain in full force and effect until the earlier to occur of: (i) the expiration of the last\nConfidentiality Period; and (ii) the termination of this Agreement by the mutual written agreement of the parties.\n5\nSection 4.2 Survival. Articles II (with respect to Confidential Information acquired or disclosed prior to the date of termination), III, IV, V, VI\nand VII shall survive any termination of this Agreement.\nSection 4.3 Return of Confidential Information.\n(a) Distribution or Ancillary Agreements. With respect to Confidential Information disclosed in connection with the Distribution\nAgreement or any Ancillary Agreement, upon the earlier to occur of: (i) the termination or expiration of this Agreement and (ii) the\ntermination of the Distribution Agreement or the whole or any part of any Ancillary Agreement, the Receiving Party shall (and shall procure\nthat its Affiliated Companies and Representatives shall) promptly but in no event later than thirty (30) days following a request made in\nwriting by the Disclosing Party: (x) return to the Disclosing Party or destroy (at the sole option of the Receiving Party) all Confidential\nInformation of the Disclosing Party in the possession or control of the Receiving Party (including, without limitation, all documents, records,\nnotebooks, data, reports, notes, compilations, computer files, data and programs, and similar repositories or materials and any and all copies or\nreproductions thereof), as directed by the Disclosing Party; provided, however, (1) the Confidential Information to be so returned or destroyed\nshall be limited to such Confidential Information that is not necessary for the performance by the Receiving Party under any then effective\nCommercial Agreement and (2) in case of a termination of the whole or part of any Ancillary Agreement (other than this Agreement), the\nConfidential Information to be so returned or destroyed shall be limited to such Confidential Information disclosed by the Disclosing Party in\nconnection with such terminated Ancillary Agreement, or part thereof, as the case may be; and (y) deliver to the Disclosing Party a certificate\nsigned by a duly authorized officer of the Receiving Party supervising such return and destruction, certifying such return or destruction in\naccordance with the provisions of this Agreement.\n(b) Commercial Agreements. With respect to Confidential Information disclosed in connection with any Commercial Agreement, upon the\ntermination or expiration of such Commercial Agreement, the Receiving Party shall (and shall procure that its Affiliated Companies and\nRepresentatives shall) promptly but in no event later than thirty (30) days following a request made in writing by the Disclosing Party:\n(x) return to the Disclosing Party or destroy (at the sole option of the Receiving Party) Confidential Information of the Disclosing Party in the\npossession or control of the Receiving Party (including, without limitation, all documents, records, notebooks, data, reports, notes,\ncompilations, computer files, data and programs, and similar repositories or materials and any and all copies or reproductions thereof), as\ndirected by the Disclosing Party; provided, however, the Confidential Information to be so returned or destroyed shall be limited to such\nConfidential Information disclosed by the Disclosing Party in connection with such terminated Commercial Agreement and shall not require\nthe destruction of any Confidential Information necessary for the performance of the Receiving Party under the Distribution Agreement, any\nAncillary Agreement or any other then effective Commercial Agreement; and (y) deliver to the Disclosing Party a certificate signed by a duly\nauthorized officer of the Receiving Party supervising such\n6\nreturn and destruction, certifying such return or destruction in accordance with the provisions of this Agreement.\n(c) Notwithstanding the foregoing provisions of Sections 4.3(a) and (b), the Receiving Party may retain Confidential Information if\nrequired to do so by applicable law, provided that the Receiving Party shall notify the Disclosing Party in writing of such obligation, and\n(A) may not use such retained Confidential Information for any purpose not strictly required to comply with such law, and (B) shall at the\nDisclosing Party’s option, return or destroy such retained Confidential Information as soon as practicable after it is no longer required by law\nto retain it.\nARTICLE V\nLIMITATION OF LIABILITY\nIN NO EVENT SHALL EITHER PARTY OR ITS SUBSIDIARIES OR AFFILIATED COMPANIES BE LIABLE TO THE OTHER PARTY\nOR ITS SUBSIDIARIES OR AFFILIATED COMPANIES FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR\nPUNITIVE DAMAGES OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING\nNEGLIGENCE) ARISING IN ANY WAY OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF\nTHE POSSIBILITY OF SUCH DAMAGES.\nARTICLE VI\nMISCELLANEOUS PROVISIONS\nSection 6.1 Dispute Resolution. Any dispute arising out of or relating to the performance, breach or interpretation of this Agreement shall be\nhandled in accordance with Section 5.5 of the Distribution Agreement.\nSection 6.2 Export Restrictions. Both parties shall adhere to all applicable laws, regulations and rules relating to the export of technical data,\nand shall not export or reexport any technical data, any products received from Disclosing Party, or the direct product of such technical data, to\nany proscribed country listed in such applicable laws, regulations and rules unless properly authorized.\nSection 6.3 No Implied Licenses. The Receiving Party acknowledges that the Confidential Information is the exclusive property of the\nDisclosing Party, and the Disclosing Party has the exclusive right, title and interest to its Confidential Information. Nothing contained in this\nAgreement shall be construed as conferring any rights by implication, estoppel or otherwise, or under any intellectual property right, other than\nthe rights expressly granted in this Agreement, to the Confidential Information. Neither party is required hereunder to furnish or disclose to the\nother any technical or other information.\nSection 6.4 Infringement Suits. Neither party shall have any obligation hereunder to institute any action or suit against Third Parties for\nmisappropriation of any of its Confidential Information or to defend any action or suit brought by a Third Party that alleges infringement of\n7\nany intellectual property rights by the Receiving Party’s authorized use of the Disclosing Party’s Confidential Information.\nSection 6.5 Entire Agreement. This Agreement, the Distribution Agreement, the other Ancillary Agreements, and the Commercial\nAgreements constitute the entire agreement between the parties with respect to the subject matter hereof and shall supersede all prior written and\noral and all contemporaneous oral agreements and understandings with respect to the subject matter hereof. Notwithstanding the foregoing, the\nparties agree that any agreements entered into between them after the Effective Time for the protection of specific Confidential Information shall\nsupersede the terms of this Agreement with respect to such Confidential Information.\nSection 6.6 Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of\nGeorgia as to all matters regardless of the laws that might otherwise govern under principles of conflicts of laws applicable thereto.\nSection 6.7 Descriptive Headings. The descriptive headings herein are inserted for convenience of reference only and are not intended to be\npart of or to affect the meaning or interpretation of this Agreement.\nSection 6.8 Notices. All notices and other communications hereunder shall be in writing and shall be deemed effectively given the earlier of\n(i) when received, (ii) when delivered personally, (iii) one (1) Business Day after being delivered by facsimile (with receipt of appropriate\nconfirmation) or (iv) one (1) Business Day after being deposited with an overnight courier service and addressed to the respective parties as\nfollows:\nif to Synovus:\nSynovus Financial Corp.\n1111 Bay Avenue\nSuite 500\nColumbus, GA 31901\nAttention: Chief Financial Officer\nTelecopy: (706) 649-4819\nif to TSYS:\nTotal System Services, Inc.\n1600 First Avenue\nColumbus, GA 31901\nAttention: Chief Financial Officer\nTelecopy: (706) 644-1725\nor to such other address as a party may request by notifying the other in writing. As used in this Section 6.8, “Business Day” means any day\nother than a Saturday, a Sunday or a day on which banking institutions located in the city of Columbus, Georgia are authorized or obligated by\nlaw or executive order to close.\n8\nSection 6.9 Assignment. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective legal\nrepresentatives and successors, and nothing in this Agreement, express or implied, is intended to confer upon any other Person any rights or\nremedies of any nature whatsoever under or by reason of this Agreement; provided, however, except as otherwise expressly provided for in this\nAgreement, this Agreement shall not be assignable, in whole or in part, by any party without the prior written consent of the other party, and any\nattempt to assign any rights or obligations arising under this Agreement without such consent shall be null and void; provided further, that a party\nmay assign this Agreement in connection with: (i) a merger transaction in which such party is not the surviving entity or (ii) the sale, transfer,\nexchange or other disposition by such party of all or substantially all of its assets, so long as, in either case, if such merger or asset sale\ntransaction occurs during the Restricted Assignment Period, the rating of the assignee, following the consummation of such merger or asset sale\ntransaction, shall be BBB- or better from Standard & Poor’s and Baa3 or better from Moody’s Investor Services, Inc. (or if Standard & Poor ’s or\nMoody’s Investor Services, Inc. shall change their rating designations after the date of this Agreement, a comparable rating or better under such\nnew designations), and upon the effectiveness of any such valid assignment the assigning party shall be released from all of its obligations under\nthis Agreement if the surviving entity of such merger or the transferee of such assets shall agree in writing, in form and substance reasonably\nsatisfactory to the other party, to be bound by the terms of this Agreement as if named as a “party” hereto. The Receiving Party’s assignment of\nthis Agreement shall not relieve it of any of its obligations hereunder.\nSection 6.10 Severability. If any term or other provision of this Agreement is determined by a nonappealable decision of a court,\nadministrative agency or binding arbitrator by any court or in any binding arbitration to be invalid, illegal or incapable of being enforced by any\nrule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the\neconomic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either party. Upon such\ndetermination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to\nmodify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the\ntransactions contemplated hereby are fulfilled to the fullest extent possible.\nSection 6.11 Failure or Indulgence not Waiver; Remedies Cumulative. No failure or delay on the part of either party hereto in the exercise\nof any right hereunder shall impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty or\nagreement herein, nor shall any single or partial exercise of any such right preclude other or further exercise thereof or of any other right. All\nrights and remedies existing under this Agreement are cumulative to, and not exclusive of, any rights or remedies otherwise available.\nSection 6.12 Amendment. No change or amendment will be made to this Agreement except by an instrument in writing signed on behalf of\neach of the parties to such agreement.\nSection 6.13 Counterparts. This Agreement may be executed in two or more counterparts, all of which, taken together, shall be considered\nto be one and the same instrument.\n9\nSection 6.14 Existing Agreements. Notwithstanding anything to the contrary in this Agreement, Confidential Information shall not include,\nand this Agreement shall not in any way apply to, any confidential information exchanged pursuant to those agreements between the parties\nand/or their respective Subsidiaries set forth on Schedule A hereto to the extent such agreements contain provisions governing the use and\ndisclosure of confidential information. Those agreements set forth on Schedule A that do not include such a provision are referred to herein as\nthe “Commercial Agreements” and the disclosure and use of confidential information under such Commercial Agreements is governed by the\nterms and conditions of this Agreement.\nSection 6.15 Effectiveness. This Agreement shall become effective upon the Effective Time and prior thereto shall be of no force or effect. If\nthe Distribution Agreement shall be terminated in accordance with its terms prior to the occurrence of the Effective Time, this Agreement and\nany actions or agreements contemplated hereby shall automatically be terminated and of no force or effect.\n[Signature page follows]\n10\nWHEREFORE, the parties have signed this Master Confidential Disclosure Agreement effective as of the Effective Time.\nSYNOVUS FINANCIAL CORP.\nTOTAL SYSTEM SERVICES, INC.\nBy: /s/ Thomas J. Prescott\nBy: /s/ James B. Lipham\nName: Thomas J. Prescott\nName: James B. Lipham\nTitle: Executive Vice President and Chief Financial Officer Title: Senior Executive Vice President and Chief Financial Officer\n[Signature page to Master Confidential Disclosure Agreement]
ca0b075430f1d0f830c5fb90bbaef1cc.pdf	effective_date jurisdiction party term	EX-10 .28R 5 ex1028r_formofnoncompetiti.htm EXHIBIT\nExhibit 10.28r\nNON-COMPETITION AND CONFIDENTIALITY COVENANTS\nTHIS INSTRUMENT is made and given this ___ day of _________ 2014 by __________(“Participant”) to and for\nthe benefit of Tiffany and Company, a New York corporation and its Affiliates (as defined below) with reference to the\nfollowing facts and circumstances:\nA.\nParticipant wishes to receive Equity Awards which might be granted to Participant in the future or which have\nbeen granted to Participant on the condition that Participant executes and delivers this instrument;\nB.\nParticipant wishes to have Excess DCRB Contributions made on his behalf by Tiffany pursuant to the terms\nof the Deferral Plan;\nC.\nParticipant is willing to make the promises set forth in this instrument, and to execute and deliver this\ninstrument, in order to be eligible to (i) receive Equity Awards in the future and to have the benefit of Equity\nAwards which have been granted to Participant on the condition that Participant executes and delivers this\ninstrument and (ii) to have the benefit of Excess DCRB Contributions;\nD.\nParticipant understands that Equity Awards and any Excess DCRB Contributions and Investment Fund\nperformance credited to such contributions in a Participant’s Deferred Benefit Accounts may be forfeited if\nParticipant breaches the covenants contained in this instrument;\nE.\nParticipant understands that the Proceeds of Equity Awards may become due and payable by Participant to\nTiffany and Company if Participant breaches the covenants contained in this instrument;\nF.\nParticipant agrees that the receipt of one or more Equity Awards is full and fair and consideration for the\ncovenants made in this instrument.\nNOW THEREFORE, Participant hereby agrees as follows:\n1. Defined Terms. The initially capitalized words and phrases set forth below shall have the meanings ascribed to them\nbelow:\n“Affiliate” shall mean, with reference to any Person, any second Person that controls, is controlled by, or is under\ncommon control with, any such first Person, directly or indirectly.\n“Board” means the board of directors of Tiffany and Company, a New York corporation.\n“Cause” means a termination of Participant’s employment, involuntary on Participant’s part, which is the result of:\n(i)\nParticipant’s conviction or plea of no contest to a felony involving financial impropriety or a felony which\nwould tend to subject the Company or any of its Affiliates to public criticism or materially interfere with\nParticipant’s continued service to the Company or its Affiliate;\n(ii) Participant’s willful and unauthorized disclosure of material Confidential Information which disclosure\nactually results in substantive harm to the Company’s or its Affiliate’s business or puts such business at an\nactual competitive disadvantage;\n(iii) Participant’s willful failure or refusal to perform substantially all such proper and achievable directives\nissued by Participant’s superior (other than: (A) any such failure resulting from Participant’s incapacity\ndue to physical or mental illness, or (B) any such refusal made by Participant in good faith because\nParticipant believes such directives to be illegal, unethical or immoral) after a written demand for\nsubstantial performance is delivered to Participant on behalf of Company, which demand specifically\nidentifies the manner in which Participant has not substantially performed Participant’s duties, and which\nperformance is not substantially corrected by Participant within ten (10) days of receipt of such demand;\n(iv) Participant’s commission of any willful act which is intended by Participant to result in his personal\nenrichment at the expense of the Company or any of its Affiliates, or which could reasonably be expected\nby him to materially injure the reputation, business or business relationships of the Company or any of its\nAffiliates;\n(v) A theft, fraud or embezzlement perpetrated by Participant upon Company or any of its Affiliates.\n“Change in Control” means a change in control of Parent of a nature that would be required to be reported in response to\nItem 6(e) of Schedule 14A of Regulation 14A promulgated under the Exchange Act, whether or not Parent is then\nsubject to such reporting requirement; provided, however, that, anything in this Agreement to the contrary\nnotwithstanding, a Change in Control shall be deemed to have occurred if:\n(i)\nany Person, or any syndicate or group deemed to be a person under Section 14(d)(2) of the Exchange Act,\nexcluding Parent or any of its Affiliates, a trustee or any fiduciary holding securities under an employee\nbenefit plan of Parent or any of its Affiliates, an underwriter temporarily holding securities pursuant to an\noffering of such securities or a\n2\ncorporation owned, directly or indirectly by stockholders of Parent in substantially the same proportion as\ntheir ownership of Parent, is or becomes the “beneficial owner” (as defined in Rule 13d-3 of the General\nRules and Regulations under the Exchange Act), directly or indirectly, of securities of Parent representing\nThirty-five percent (35%) or more of the combined voting power of Parent’s then outstanding securities\nentitled to vote in the election of directors of Parent;\n(ii) ten (10) days following the “Shares Acquisition Date” if any Person has in fact become and then remains\nan “Acquiring Person” under the Rights Plan;\n(iii) if the Parent Board should resolve to redeem the “Rights” under the Rights Plan in response to a proposal\nby any Person to acquire, directly or indirectly, securities of Parent representing Fifteen percent (15%) or\nmore of the combined voting power of Parent’s then outstanding securities entitled to vote in the election\nof directors of Parent;\n(iv) if the Incumbent Directors cease to constitute a majority of the Parent Board; provided, however, that no\nperson shall be deemed an Incumbent Director if he or she was appointed or elected to the Parent Board\nafter having been designated to serve on the Parent Board by a Person who has entered into an agreement\nwith Parent to effect a transaction described in clauses (i), (iii), (v), (vi), (vii), (viii) or (ix) of this\ndefinition;\n(v)\nthere occurs a reorganization, merger, consolidation or other corporate transaction involving Parent, in\neach case with respect to which the stockholders of Parent immediately prior to such transaction do not,\nimmediately after such transaction, own more than Fifty percent (50%) of the combined voting power of\nthe Parent or other corporation resulting from such transaction, as the case may be;\n(vi) all or substantially all of the assets of Parent are sold, liquidated or distributed, except to an Affiliate of\nParent;\n(vii) all or substantially all of the assets of Tiffany and Company are sold, liquidated or distributed, except to\nan Affiliate of Parent;\n(viii) any Person, or any syndicate or group deemed to be a person under Section 14(d)(2) of the Exchange Act,\nexcluding Parent or any of its Affiliates, a trustee or any fiduciary holding securities under an employee\nbenefit plan of Parent or any of its Affiliates, an underwriter temporally holding securities pursuant to an\noffering of such securities or a corporation owned, directly or indirectly by stockholders of Parent in\nsubstantially the same proportion as their ownership of Parent, is or becomes the “beneficial owner” (as\ndefined in Rule 13d-3 of the General\n3\nRules and Regulations under the Exchange Act), directly or indirectly, of securities of Tiffany and\nCompany representing Fifty percent (50%) or more of the combined voting power of Tiffany and\nCompany’s then outstanding securities entitled to vote in the election of directors of Tiffany and\nCompany; or\n(ix) there is a “change of control” or a “change in the effective control” of Parent within the meaning of\nSection 280G of the Code and the Regulations.\n“Change in Control Date” shall mean the date on which a Change of Control occurs.\n“Confidential Information” means all information relating in any manner to Tiffany or its business, including but not\nlimited to, contemplated new products and services, marketing and advertising campaigns, sales projections, creative\ncampaigns and themes, financial information, budgets and projections, system designs, employees, management\nprocedures and systems, employee training materials, equipment, production plans and techniques, product and materials\nspecifications, product designs and design techniques, client information (including purchase history and client\nidentifying information) and vendor information (including the identity of vendors and information concerning the\ncapacity of or products or pricing provided by specific vendors); notwithstanding the foregoing, “Confidential\nInformation” shall not include information that becomes generally publicly available other than as a result of a disclosure\nby Participant or that becomes available to Participant on a non-confidential basis from a Person that to the Participant’s\nknowledge, after due inquiry, is not bound by a duty of confidentiality.\n“Covered Employee” means any person who, at any date relevant to this Agreement, is an employee of Tiffany or who\nwas an employee of Tiffany during the one-year period previous to the date relevant to this Agreement.\n“Deferral Plan” means the Tiffany and Company Amended and Restated Executive Deferral Plan as it may be further\namended from time to time.\n“Deferred Benefit Accounts” means Deferred Benefit Accounts under the Deferral Plan.\n“Duration of Non-Competition Covenant” means the period beginning with Participant’s Termination Date and ending\nupon the first to occur of the following: (i) the second year anniversary of Participant’s Termination Date, (ii)\nParticipant’s Change of Control Date or (iii) Participant’s 60th birthday provided that, in no circumstance shall the\nDuration of this Covenant be less than six months.\n“Equity Awards” means any grant of options to purchase, restricted shares of, stock units that may be settled in, or stock\nappreciation rights that may be measured by appreciation in the value of, the Common Stock of Tiffany & Co., a\nDelaware corporation, including any grants made under the terms of the 1998 Employee Incentive Plan or any plan\n4\nadopted by Tiffany & Co. subsequent to the date of this instrument including grants made both before and after the date\nof this instrument.\n“Excess DCRB Contributions” means the contribution described in Sections 3.3 and 3.4 of the Deferral Plan.\n“Investment Fund” shall have the meaning ascribed to that term in the Deferral Plan.\n“Jewelry” means jewelry (including but not limited to precious metal or silver jewelry or jewelry containing gemstones)\nand watches.\n“Parent” means Tiffany & Co., a Delaware corporation.\n“Person” means any individual, firm, corporation, partnership, limited partnership, limited liability partnership, business\ntrust, limited liability company, unincorporated association or other entity, and shall include any successor (by merger or\notherwise) of such entity.\n“Proceeds of Equity Award” means, in U.S . dollars, (i) with respect to an Equity Award of restricted stock or stock units,\nthe value the shares on the date the Equity Award vests, and, (ii) with respect to an Equity Award that is an option to\npurchase or a stock appreciation right, the spread between the strike price and the market value for the underlying shares\non the exercise date, in each of cases (i) and (ii) measured by the simple average of the high and low selling prices on the\nprincipal market on which the shares are traded as of vesting or exercise date, as the case may be, if such vesting or\nexercise date is a trading date; if such vesting or exercise date is not a trading date, then as of trading date next following\nthe vesting or exercise date.\n“Normal Retirement Age” means the later of (i) Participant’s 65th birthday or (ii) the 5th anniversary from his date of\nhire.\n“Retail Jewelry Trade” means the operation of one or more retail outlets (including stores-within-stores, leased\ndepartments or concessions) selling Jewelry in any city in the world in which a TIFFANY & CO. store is located at the\ntime in question; for the purpose of this definition, a retail outlet will not be deemed engaged in the Retail Jewelry Trade\nif less than 5% of the items displayed for sale in such outlet are Jewelry, so that, by way of example, an apparel store that\noffers Jewelry as an incidental item would not be deemed engaged in the Retail Jewelry Trade.\n“Rights Plan” means the Amended and Restated Rights Agreement Dated as of September 22, 1998 by and between\nTiffany & Co., a Delaware corporation, and ChaseMellon Shareholder Services L.L .C ., as Rights Agent, as such\nAgreement may be further amended from time to time.\n5\n“Termination Date” means the date Participant ceases to be an employee of Tiffany or its Affiliate.\n“Tiffany” means Tiffany and Company, a New York corporation, and if the context so requires, Tiffany and Company\nand/or any Affiliate of Tiffany and Company, such term to be interpreted broadly so as to give rights equivalent to\nTiffany and Company to any Affiliate of Tiffany and Company.\n“Wholesale Jewelry Trade” means the sale of Jewelry or gemstones to the Retail Jewelry Trade, the development or\ndesign of Jewelry for sale to the Retail Jewelry Trade or the production of Jewelry for sale to the Retail Jewelry Trade\nregardless of where in the world such activities are conducted.\n2. Non-Competition. Participant agrees that for the Duration of the Non-Competition Covenant Participant will not\ndirectly or indirectly (whether as director, officer, consultant, principal, owner, member, partner, advisor, financier,\nemployee, agent or otherwise):\n(i) engage in, assist, have any interest in or contribute Participant’s knowledge and abilities to, any business or\nentity in the Retail Jewelry Trade or in the Wholesale Jewelry Trade or seeking to enter or about to become engaged in\nthe Retail Jewelry Trade or the Wholesale Jewelry Trade (provided that this subsection shall not prohibit an investment\nby Participant not exceeding five percent of the outstanding securities of a publicly traded company);\n(ii) employ, attempt to employ, or assist anyone in employing a Covered Employee (including by influencing any\nCovered Employee to terminate his/her employment with Tiffany or to accept employment with any Person); or\n(iii) attempt in any manner to solicit jewelry purchases by any client of Tiffany or persuade any client of Tiffany\nto cease doing business or reduce the amount of business that such client has customarily done with Tiffany.\nThe provisions of Section 2(i) above shall not apply if Participant’s employment with Tiffany or Tiffany’s Affiliate is\nterminated by Tiffany or such Affiliate for reasons other than Cause or if, having reached Participant’s Normal\nRetirement Age or Participant’s Change of Control Date, Participant voluntarily resigns from such employment. The\nprovisions of this Section 2 may be waived by the Board, in whole or in part, if deemed by the Board to be in the best\ninterests of Tiffany and Company, provided, however, that if the Participant is, on or within six months prior to\nParticipant’s Termination Date, an officer of Tiffany & Co., a Delaware corporation, then the provisions of this Section 2\nmay only be waived by the Compensation Committee (or its Stock Option Subcommittee) of the Board of Directors of\nsaid Tiffany & Co.\n3. Confidentiality. Participant acknowledges that Participant has had access to Confidential Information. Participant\nagrees not use to the detriment of Tiffany or disclose any Confidential Information. If the Participant is requested in any\ncase by a court or governmental body to make any disclosure of Confidential Information, the\n6\nParticipant shall (i) promptly notify Tiffany in writing, (ii) consult with and assist Tiffany at Tiffany’s expense in\nobtaining an injunction or other appropriate remedy to prevent such disclosure, and (iii) use Participant’s reasonable\nefforts to obtain at the Company’s expense a protective order or other reliable assurance that confidential treatment will\nbe accorded to any Confidential Information that must be disclosed. Subject to the foregoing sentence, Participant may\nfurnish that portion (and only that portion) of the Confidential Information that, in the written opinion of Participant’s\ncounsel (the form and substance of which opinion shall be reasonably acceptable to Tiffany), the Participant is legally\ncompelled or otherwise required to disclose or else stand liable for contempt or suffer other material penalty. The\nobligations in this section shall continue beyond the Duration of the Non-Competition Covenant.\n4. Forfeiture of Equity Awards and Return of Proceeds of Equity Awards in the Event of Breach; Forfeiture of\nVested DCRB Contributions. Should Participant breach Participant’s obligations under Section 2 above, Participant\nshall:\n(i) forfeit and lose all rights under any Equity Award, whether or not such Equity Award shall have vested, and\nsuch Equity Award shall thereupon become null and void;\n(ii) immediately pay to Tiffany and Company the Proceeds of Equity Award for (a) each grant of stock option or\nstock appreciation right that was exercised and (b) each grant of restricted stock or stock units that has vested, in both\ncases (a) and (b), within the following period: beginning 180 days prior to Participant’s Termination Date and including\nthe entire period of the Duration of Non-Competition Covenant;\n(iii) forfeit any Excess DCRB Contributions and Investment Fund performance credited to such contributions in\nParticipant’s Deferred Benefit Accounts that would otherwise be payable to Participant or his Beneficiary under the\nDeferral Plan; and\n(iv) promptly repay to Tiffany and Company any amounts paid from any Excess DCRB Contributions and\nInvestment Fund performance credited to such contributions in Participant’s Deferred Benefit Accounts that have been\npaid to Participant or his Beneficiary under the Deferral Plan prior to such breach.\n5. Enforcement.\n(i) Participant agrees that the restrictions set forth in this instrument are reasonable and necessary to protect the\ngoodwill of Tiffany. If any of the provisions set forth herein is deemed invalid, illegal or unenforceable based upon\nduration, geographic scope or otherwise, Participant agrees that such provision shall be modified to make it enforceable\nto the fullest extent permitted by law.\n(ii) In the event of breach or threatened breach by Participant of the provisions set forth in this instrument,\nParticipant acknowledges that Tiffany will be irreparably harmed and that monetary damages (including loss of the\nBenefit) shall be an insufficient remedy to Tiffany. Therefore, Participant consents to the enforcement of this instrument\n7\nby means of temporary or permanent injunction and other appropriate equitable relief in any competent court, in addition\nto any other remedies Tiffany may have under this Agreement or otherwise.\n6. Procedure to Obtain Determination. Should Participant wish to obtain a determination that any proposed\nemployment, disclosure, arrangement or association (each a “Proposed Transaction”) is not prohibited hereunder,\nParticipant shall direct a written request to the Board. Such request shall fully describe the Proposed Transaction. Within\n30 days after receipt of such request, the Board may (i) issue such a determination in writing, (ii) issue its refusal of such\nrequest in writing, or (iii) issue a written request for more written information concerning the Proposed Transaction. In\nthe event that alternative (iii) is elected (which election may be made on behalf of the Board by the Legal Department of\nTiffany and Company without action by the Board), any action on Participant’s request will be deferred for ten (10) days\nfollowing receipt by said Legal Department of the written information requested. Failure of the Board to act within any\nof the time periods specified in this Section 6 shall be deemed a determination that the Proposed Transaction is not\nprohibited hereunder. A determination made or deemed made under this Section 6 shall be limited in effect to the\nProposed Transaction described in the submitted materials and shall not be binding or constitute a waiver with respect to\nany other Proposed Transaction, whether proposed by such Participant or any other Person. In the event that Participant\nwishes to seek a determination that employment with a management consulting firm, an accounting firm, a law firm or\nsome other provider of consulting services to a wide variety clients will not be prohibited hereunder should such firm, at\nsome unspecified time, provide services to a Person in the Retail Jewelry Trade or the Wholesale Jewelry Trade,\nParticipant may seek a determination hereunder; in submitting such a Proposed Transaction, the Participant should\nspecify the extent that Participant will be involved in or can be excluded from involvement in the provision of such\nservices. In a making any determination under this Section 6, the Board shall not be deemed to be acting as a fiduciary\nwith respect to the Participant or any beneficiary of the Participant and shall be under no obligation to issue a\ndetermination that any Proposed Transaction is not prohibited hereunder.\n7. Arbitration and Equitable Relief. Participant and Tiffany agree that any and all disputes arising out or relating to\nthe interpretation or application of this instrument, including any dispute concerning whether any conduct is in violation\nof Section 2 or 3 above, shall be subject to arbitration in New York, New York, under the then existing Commercial\nArbitration Rules of the American Arbitration Association. Arbitration proceedings shall be conducted by three\narbitrators. Without limit to their general authority, the arbitrators shall have the right to order reasonable discovery in\naccordance with the Federal Rules of Civil Procedure. The final decision of the arbitrators shall be binding and\nenforceable without further legal proceedings in court or otherwise, provided that either party to such arbitration may\nenter judgment upon the award in any court having jurisdiction. The final decision arising from the arbitration shall be\naccompanied by a written opinion and decision which shall describe the rational underlying the award and shall include\nfindings of fact and conclusions of law. The cost of such arbitration shall be borne equally by the parties and each party\nto the arbitration shall bear its own\n8\nattorneys fees. Notwithstanding any provision in this Section 7, the requirement to arbitrate disputes shall not apply to\nany action to enforce this instrument by means of temporary or permanent injunction or other appropriate equitable\nrelief.\n8. Miscellaneous Provisions.\n(a) Tiffany may assign its rights to enforce this instrument to any of its Affiliates. Participant understands and agrees\nthat the promises in this instrument are for the benefit of Tiffany (which term includes the Tiffany and Company and its\nAffiliates) and for the benefit of the successors and assigns of Tiffany and its Affiliates.\n(b) Any determination made by the Board under Section 6 above shall bind Tiffany and Company and its Affiliates.\n(c) The laws of the State of New York, without giving effect to its conflicts of law principles, govern all matters arising\nout of or relating to this instrument and all of the prohibitions and remedies it contemplates, including, without\nlimitation, its validity, interpretation, construction, performance and enforcement.\n(d) Each Person giving or making any notice, request, demand or other communication (each, a “Notice”) pursuant to\nthis Instrument shall\n(i) give the Notice in writing; and\n(ii) use one of the following methods of delivery, each of which for purposes of this Agreement is a writing:\n(A) Personal delivery.\n(B) Registered or Certified Mail, in each case, return receipt requested and postage prepaid.\n(C) Nationally recognized overnight courier, with all fees prepaid.\n(e) Each Person giving a Notice shall address the Notice to the recipient (the “Addressee”) at the address given on the\nsignature page of this Instrument or to a changed address designated in a Notice.\n(f) A Notice is effective only if the person giving the Notice has complied with subsections (d) and (e) and if the\nAddressee has received the Notice. A Notice is deemed to have been received upon receipt as indicated by the date on\nthe signed receipt, provided, however, that if the Addressee rejects or otherwise refuses to accept the Notice, or if the\nNotice cannot be delivered because of a change in address for which no Notice was given, then upon such rejection,\nrefusal or inability to deliver such Notice will be deemed to have been received. Despite the other clauses of this\nsubsection (f), if any Notice is received after 5:00 p.m . on a business day where the Addressee is located, or on\n9\na day that is not a business day where the Addressee is located, then the Notice is deemed received at 9:00 a.m . on the\nnext business day where the Addressee is located.\n(g) This instrument shall not be amended except by a subsequent written instrument that has been executed by\nParticipant and on behalf of Tiffany by a duly authorized officer of Tiffany. Participant’s obligations under this\ninstrument may not be waived, except pursuant to a writing executed on behalf of Tiffany or as otherwise provided in\nSection 6 above.\n(h) This instrument constitutes the final expression of Participant’s post-employment confidentiality and non-\ncompetition obligations. It is the complete and exclusive expression of those obligations and all prior and\ncontemporaneous negotiations and agreement between the parties on those matters are expressly merged into and\nsuperseded by this Agreement.\n(i) Any reference in this instrument to the singular includes the plural where appropriate, and any reference in this\ninstrument to the masculine gender includes the feminine and neuter genders where appropriate. The descriptive\nheadings of the sections of this instrument are for convenience only and do not constitute part of this instrument.\nIN WITNESS WHEREOF, this instrument has been executed on the date first written above.\nParticipant\n__________________________\nName:\nNotice Address:\n__________________________\n__________________________\n__________________________\n10\nAccepted and agreed (as to Section 7)\nTiffany and Company\nBy:______________________\nName:\nTitle:\nNotice Address:\nThe Board of Directors\nTiffany and Company\nCare of:\nLegal Department\n200 Fifth Avenue\nNew York, NY 10022\n11	EX-10.28R 5 ex1028r_formofnoncompetiti.htm EXHIBIT\nExhibit 10.28r\nNON-COMPETITION AND CONFIDENTIALITY COVENANTS\nTHIS INSTRUMENT is made and given this ___ day of 2014 by (“Participant”) to and for\nthe benefit of Tiffany and Company, a New York corporation and its Affiliates (as defined below) with reference to the\nfollowing facts and circumstances:\nA. Participant wishes to receive Equity Awards which might be granted to Participant in the future or which have\nbeen granted to Participant on the condition that Participant executes and delivers this instrument;\nB. Participant wishes to have Excess DCRB Contributions made on his behalf by Tiffany pursuant to the terms\nof the Deferral Plan;\nC. Participant is willing to make the promises set forth in this instrument, and to execute and deliver this\ninstrument, in order to be eligible to (i) receive Equity Awards in the future and to have the benefit of Equity\nAwards which have been granted to Participant on the condition that Participant executes and delivers this\ninstrument and (ii) to have the benefit of Excess DCRB Contributions;\nD. Participant understands that Equity Awards and any Excess DCRB Contributions and Investment Fund\nperformance credited to such contributions in a Participant’s Deferred Benefit Accounts may be forfeited if\nParticipant breaches the covenants contained in this instrument;\nE. Participant understands that the Proceeds of Equity Awards may become due and payable by Participant to\nTiffany and Company if Participant breaches the covenants contained in this instrument;\nF. Participant agrees that the receipt of one or more Equity Awards is full and fair and consideration for the\ncovenants made in this instrument.\nNOW THEREFORE, Participant hereby agrees as follows:\n1. Defined Terms. The initially capitalized words and phrases set forth below shall have the meanings ascribed to them\nbelow:\n“Affiliate” shall mean, with reference to any Person, any second Person that controls, is controlled by, or is under\ncommon control with, any such first Person, directly or indirectly.\n“Board” means the board of directors of Tiffany and Company, a New York corporation.\n“Cause” means a termination of Participant’s employment, involuntary on Participant’s part, which is the result of: (@\n(i)\n(iii)\n(iv)\n)\nParticipant’s conviction or plea of no contest to a felony involving financial impropriety or a felony which\nwould tend to subject the Company or any of its Affiliates to public criticism or materially interfere with\nParticipant’s continued service to the Company or its Affiliate;\nParticipant’s willful and unauthorized disclosure of material Confidential Information which disclosure\nactually results in substantive harm to the Company’s or its Affiliate’s business or puts such business at an\nactual competitive disadvantage;\nParticipant’s willful failure or refusal to perform substantially all such proper and achievable directives\nissued by Participant’s superior (other than: (A) any such failure resulting from Participant’s incapacity\ndue to physical or mental illness, or (B) any such refusal made by Participant in good faith because\nParticipant believes such directives to be illegal, unethical or immoral) after a written demand for\nsubstantial performance is delivered to Participant on behalf of Company, which demand specifically\nidentifies the manner in which Participant has not substantially performed Participant’s duties, and which\nperformance is not substantially corrected by Participant within ten (10) days of receipt of such demand;\nParticipant’s commission of any willful act which is intended by Participant to result in his personal\nenrichment at the expense of the Company or any of its Affiliates, or which could reasonably be expected\nby him to materially injure the reputation, business or business relationships of the Company or any of its\nAffiliates;\nA theft, fraud or embezzlement perpetrated by Participant upon Company or any of its Affiliates.\n“Change in Control” means a change in control of Parent of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Exchange Act, whether or not Parent is then subject to such reporting requirement; provided, however, that, anything in this Agreement to the contrary notwithstanding, a Change in Control shall be deemed to have occurred if: (@\nany Person, or any syndicate or group deemed to be a person under Section 14(d)(2) of the Exchange Act,\nexcluding Parent or any of its Affiliates, a trustee or any fiduciary holding securities under an employee\nbenefit plan of Parent or any of its Affiliates, an underwriter temporarily holding securities pursuant to an\noffering of such securities or a\n(i)\n(iii)\n(iv)\n)\n(vi)\n(vii)\n(viii)\ncorporation owned, directly or indirectly by stockholders of Parent in substantially the same proportion as\ntheir ownership of Parent, is or becomes the “beneficial owner” (as defined in Rule 13d-3 of the General\nRules and Regulations under the Exchange Act), directly or indirectly, of securities of Parent representing\nThirty-five percent (35%) or more of the combined voting power of Parent’s then outstanding securities\nentitled to vote in the election of directors of Parent;\nten (10) days following the “Shares Acquisition Date” if any Person has in fact become and then remains\nan “Acquiring Person” under the Rights Plan;\nif the Parent Board should resolve to redeem the “Rights” under the Rights Plan in response to a proposal\nby any Person to acquire, directly or indirectly, securities of Parent representing Fifteen percent (15%) or\nmore of the combined voting power of Parent’s then outstanding securities entitled to vote in the election\nof directors of Parent;\nif the Incumbent Directors cease to constitute a majority of the Parent Board; provided, however, that no\nperson shall be deemed an Incumbent Director if he or she was appointed or elected to the Parent Board\nafter having been designated to serve on the Parent Board by a Person who has entered into an agreement\nwith Parent to effect a transaction described in clauses (i), (iii), (v), (vi), (vii), (viii) or (ix) of this\ndefinition;\nthere occurs a reorganization, merger, consolidation or other corporate transaction involving Parent, in\neach case with respect to which the stockholders of Parent immediately prior to such transaction do not,\nimmediately after such transaction, own more than Fifty percent (50%) of the combined voting power of\nthe Parent or other corporation resulting from such transaction, as the case may be;\nall or substantially all of the assets of Parent are sold, liquidated or distributed, except to an Affiliate of\nParent;\nall or substantially all of the assets of Tiffany and Company are sold, liquidated or distributed, except to\nan Affiliate of Parent;\nany Person, or any syndicate or group deemed to be a person under Section 14(d)(2) of the Exchange Act,\nexcluding Parent or any of its Affiliates, a trustee or any fiduciary holding securities under an employee\nbenefit plan of Parent or any of its Affiliates, an underwriter temporally holding securities pursuant to an\noffering of such securities or a corporation owned, directly or indirectly by stockholders of Parent in\nsubstantially the same proportion as their ownership of Parent, is or becomes the “beneficial owner” (as\ndefined in Rule 13d-3 of the General\nRules and Regulations under the Exchange Act), directly or indirectly, of securities of Tiffany and\nCompany representing Fifty percent (50%) or more of the combined voting power of Tiffany and\nCompany’s then outstanding securities entitled to vote in the election of directors of Tiffany and\nCompany; or\n(ix)  there is a “change of control” or a “change in the effective control” of Parent within the meaning of\nSection 280G of the Code and the Regulations.\n“Change in Control Date” shall mean the date on which a Change of Control occurs.\n“Confidential Information” means all information relating in any manner to Tiffany or its business, including but not\nlimited to, contemplated new products and services, marketing and advertising campaigns, sales projections, creative\ncampaigns and themes, financial information, budgets and projections, system designs, employees, management\nprocedures and systems, employee training materials, equipment, production plans and techniques, product and materials\nspecifications, product designs and design techniques, client information (including purchase history and client\nidentifying information) and vendor information (including the identity of vendors and information concerning the\ncapacity of or products or pricing provided by specific vendors); notwithstanding the foregoing, “Confidential\nInformation” shall not include information that becomes generally publicly available other than as a result of a disclosure\nby Participant or that becomes available to Participant on a non-confidential basis from a Person that to the Participant’s\nknowledge, after due inquiry, is not bound by a duty of confidentiality.\n“Covered Employee” means any person who, at any date relevant to this Agreement, is an employee of Tiffany or who\nwas an employee of Tiffany during the one-year period previous to the date relevant to this Agreement.\n“Deferral Plan” means the Tiffany and Company Amended and Restated Executive Deferral Plan as it may be further\namended from time to time.\n“Deferred Benefit Accounts” means Deferred Benefit Accounts under the Deferral Plan.\n“Duration of Non-Competition Covenant” means the period beginning with Participant’s Termination Date and ending\nupon the first to occur of the following: (i) the second year anniversary of Participant’s Termination Date, (ii)\nParticipant’s Change of Control Date or (iii) Participant’s 60" birthday provided that, in no circumstance shall the\nDuration of this Covenant be less than six months.\n“Equity Awards” means any grant of options to purchase, restricted shares of, stock units that may be settled in, or stock\nappreciation rights that may be measured by appreciation in the value of, the Common Stock of Tiffany & Co., a\nDelaware corporation, including any grants made under the terms of the 1998 Employee Incentive Plan or any plan\nadopted by Tiffany & Co. subsequent to the date of this instrument including grants made both before and after the date\nof this instrument.\n“Excess DCRB Contributions” means the contribution described in Sections 3.3 and 3.4 of the Deferral Plan.\n“Investment Fund” shall have the meaning ascribed to that term in the Deferral Plan.\n“Jewelry” means jewelry (including but not limited to precious metal or silver jewelry or jewelry containing gemstones)\nand watches.\n“Parent” means Tiffany & Co., a Delaware corporation.\n“Person” means any individual, firm, corporation, partnership, limited partnership, limited liability partnership, business\ntrust, limited liability company, unincorporated association or other entity, and shall include any successor (by merger or\notherwise) of such entity.\n“Proceeds of Equity Award” means, in U.S. dollars, (i) with respect to an Equity Award of restricted stock or stock units,\nthe value the shares on the date the Equity Award vests, and, (ii) with respect to an Equity Award that is an option to\npurchase or a stock appreciation right, the spread between the strike price and the market value for the underlying shares\non the exercise date, in each of cases (i) and (ii) measured by the simple average of the high and low selling prices on the\nprincipal market on which the shares are traded as of vesting or exercise date, as the case may be, if such vesting or\nexercise date is a trading date; if such vesting or exercise date is not a trading date, then as of trading date next following\nthe vesting or exercise date.\n“Normal Retirement Age” means the later of (i) Participant’s 65th birthday or (ii) the 5th anniversary from his date of\nhire.\n“Retail Jewelry Trade” means the operation of one or more retail outlets (including stores-within-stores, leased\ndepartments or concessions) selling Jewelry in any city in the world in which a TIFFANY & CO. store is located at the\ntime in question; for the purpose of this definition, a retail outlet will not be deemed engaged in the Retail Jewelry Trade\nif less than 5% of the items displayed for sale in such outlet are Jewelry, so that, by way of example, an apparel store that\noffers Jewelry as an incidental item would not be deemed engaged in the Retail Jewelry Trade.\n“Rights Plan” means the Amended and Restated Rights Agreement Dated as of September 22, 1998 by and between\nTiffany & Co., a Delaware corporation, and ChaseMellon Shareholder Services L.L.C., as Rights Agent, as such\nAgreement may be further amended from time to time.\n“Termination Date” means the date Participant ceases to be an employee of Tiffany or its Affiliate.\n“Tiffany” means Tiffany and Company, a New York corporation, and if the context so requires, Tiffany and Company\nand/or any Affiliate of Tiffany and Company, such term to be interpreted broadly so as to give rights equivalent to\nTiffany and Company to any Affiliate of Tiffany and Company.\n“Wholesale Jewelry Trade” means the sale of Jewelry or gemstones to the Retail Jewelry Trade, the development or\ndesign of Jewelry for sale to the Retail Jewelry Trade or the production of Jewelry for sale to the Retail Jewelry Trade\nregardless of where in the world such activities are conducted.\n \n2. Non-Competition. Participant agrees that for the Duration of the Non-Competition Covenant Participant will not\ndirectly or indirectly (whether as director, officer, consultant, principal, owner, member, partner, advisor, financier,\nemployee, agent or otherwise):\n(i) engage in, assist, have any interest in or contribute Participant’s knowledge and abilities to, any business or\nentity in the Retail Jewelry Trade or in the Wholesale Jewelry Trade or seeking to enter or about to become engaged in\nthe Retail Jewelry Trade or the Wholesale Jewelry Trade (provided that this subsection shall not prohibit an investment\nby Participant not exceeding five percent of the outstanding securities of a publicly traded company);\n(ii) employ, attempt to employ, or assist anyone in employing a Covered Employee (including by influencing any\nCovered Employee to terminate his/her employment with Tiffany or to accept employment with any Person); or\n(iii) attempt in any manner to solicit jewelry purchases by any client of Tiffany or persuade any client of Tiffany\nto cease doing business or reduce the amount of business that such client has customarily done with Tiffany.\nThe provisions of Section 2(i) above shall not apply if Participant’s employment with Tiffany or Tiffany’s Affiliate is\nterminated by Tiffany or such Affiliate for reasons other than Cause or if, having reached Participant’s Normal\nRetirement Age or Participant’s Change of Control Date, Participant voluntarily resigns from such employment. The\nprovisions of this Section 2 may be waived by the Board, in whole or in part, if deemed by the Board to be in the best\ninterests of Tiffany and Company, provided, however, that if the Participant is, on or within six months prior to\nParticipant’s Termination Date, an officer of Tiffany & Co., a Delaware corporation, then the provisions of this Section 2\nmay only be waived by the Compensation Committee (or its Stock Option Subcommittee) of the Board of Directors of\nsaid Tiffany & Co.\n3. Confidentiality. Participant acknowledges that Participant has had access to Confidential Information. Participant\nagrees not use to the detriment of Tiffany or disclose any Confidential Information. If the Participant is requested in any\ncase by a court or governmental body to make any disclosure of Confidential Information, the\nParticipant shall (i) promptly notify Tiffany in writing, (ii) consult with and assist Tiffany at Tiffany’s expense in\nobtaining an injunction or other appropriate remedy to prevent such disclosure, and (iii) use Participant’s reasonable\nefforts to obtain at the Company’s expense a protective order or other reliable assurance that confidential treatment will\nbe accorded to any Confidential Information that must be disclosed. Subject to the foregoing sentence, Participant may\nfurnish that portion (and only that portion) of the Confidential Information that, in the written opinion of Participant’s\ncounsel (the form and substance of which opinion shall be reasonably acceptable to Tiffany), the Participant is legally\ncompelled or otherwise required to disclose or else stand liable for contempt or suffer other material penalty. The\nobligations in this section shall continue beyond the Duration of the Non-Competition Covenant.\nVested DCRB Contributions. Should Participant breach Participant’s obligations under Section 2 above, Participant\nshall:\n(i) forfeit and lose all rights under any Equity Award, whether or not such Equity Award shall have vested, and\nsuch Equity Award shall thereupon become null and void;\n(ii) immediately pay to Tiffany and Company the Proceeds of Equity Award for (a) each grant of stock option or\nstock appreciation right that was exercised and (b) each grant of restricted stock or stock units that has vested, in both\ncases (a) and (b), within the following period: beginning 180 days prior to Participant’s Termination Date and including\nthe entire period of the Duration of Non-Competition Covenant;\n(iii) forfeit any Excess DCRB Contributions and Investment Fund performance credited to such contributions in\nParticipant’s Deferred Benefit Accounts that would otherwise be payable to Participant or his Beneficiary under the\nDeferral Plan; and\n(iv) promptly repay to Tiffany and Company any amounts paid from any Excess DCRB Contributions and\nInvestment Fund performance credited to such contributions in Participant’s Deferred Benefit Accounts that have been\npaid to Participant or his Beneficiary under the Deferral Plan prior to such breach.\n5. Enforcement.\n(i) Participant agrees that the restrictions set forth in this instrument are reasonable and necessary to protect the\ngoodwill of Tiffany. If any of the provisions set forth herein is deemed invalid, illegal or unenforceable based upon\nduration, geographic scope or otherwise, Participant agrees that such provision shall be modified to make it enforceable\nto the fullest extent permitted by law.\n(ii) In the event of breach or threatened breach by Participant of the provisions set forth in this instrument,\nParticipant acknowledges that Tiffany will be irreparably harmed and that monetary damages (including loss of the\nBenefit) shall be an insufficient remedy to Tiffany. Therefore, Participant consents to the enforcement of this instrument\nby means of temporary or permanent injunction and other appropriate equitable relief in any competent court, in addition\nto any other remedies Tiffany may have under this Agreement or otherwise.\n6. Procedure to Obtain Determination. Should Participant wish to obtain a determination that any proposed\nemployment, disclosure, arrangement or association (each a “Proposed Transaction”) is not prohibited hereunder,\nParticipant shall direct a written request to the Board. Such request shall fully describe the Proposed Transaction. Within\n30 days after receipt of such request, the Board may (i) issue such a determination in writing, (ii) issue its refusal of such\nrequest in writing, or (iii) issue a written request for more written information concerning the Proposed Transaction. In\nthe event that alternative (iii) is elected (which election may be made on behalf of the Board by the Legal Department of\nTiffany and Company without action by the Board), any action on Participant’s request will be deferred for ten (10) days\nfollowing receipt by said Legal Department of the written information requested. Failure of the Board to act within any\nof the time periods specified in this Section 6 shall be deemed a determination that the Proposed Transaction is not\nprohibited hereunder. A determination made or deemed made under this Section 6 shall be limited in effect to the\nProposed Transaction described in the submitted materials and shall not be binding or constitute a waiver with respect to\nany other Proposed Transaction, whether proposed by such Participant or any other Person. In the event that Participant\nwishes to seek a determination that employment with a management consulting firm, an accounting firm, a law firm or\nsome other provider of consulting services to a wide variety clients will not be prohibited hereunder should such firm, at\nsome unspecified time, provide services to a Person in the Retail Jewelry Trade or the Wholesale Jewelry Trade,\nParticipant may seek a determination hereunder; in submitting such a Proposed Transaction, the Participant should\nspecify the extent that Participant will be involved in or can be excluded from involvement in the provision of such\nservices. In a making any determination under this Section 6, the Board shall not be deemed to be acting as a fiduciary\nwith respect to the Participant or any beneficiary of the Participant and shall be under no obligation to issue a\ndetermination that any Proposed Transaction is not prohibited hereunder.\n7. Arbitration and Equitable Relief. Participant and Tiffany agree that any and all disputes arising out or relating to\nthe interpretation or application of this instrument, including any dispute concerning whether any conduct is in violation\nof Section 2 or 3 above, shall be subject to arbitration in New York, New York, under the then existing Commercial\nArbitration Rules of the American Arbitration Association. Arbitration proceedings shall be conducted by three\narbitrators. Without limit to their general authority, the arbitrators shall have the right to order reasonable discovery in\naccordance with the Federal Rules of Civil Procedure. The final decision of the arbitrators shall be binding and\nenforceable without further legal proceedings in court or otherwise, provided that either party to such arbitration may\nenter judgment upon the award in any court having jurisdiction. The final decision arising from the arbitration shall be\naccompanied by a written opinion and decision which shall describe the rational underlying the award and shall include\nfindings of fact and conclusions of law. The cost of such arbitration shall be borne equally by the parties and each party\nto the arbitration shall bear its own\nattorneys fees. Notwithstanding any provision in this Section 7, the requirement to arbitrate disputes shall not apply to\nany action to enforce this instrument by means of temporary or permanent injunction or other appropriate equitable\nrelief.\n8. Miscellaneous Provisions.\n(a) Tiffany may assign its rights to enforce this instrument to any of its Affiliates. Participant understands and agrees\nthat the promises in this instrument are for the benefit of Tiffany (which term includes the Tiffany and Company and its\nAffiliates) and for the benefit of the successors and assigns of Tiffany and its Affiliates.\n(b) Any determination made by the Board under Section 6 above shall bind Tiffany and Company and its Affiliates.\n(c) The laws of the State of New York, without giving effect to its conflicts of law principles, govern all matters arising\nout of or relating to this instrument and all of the prohibitions and remedies it contemplates, including, without\nlimitation, its validity, interpretation, construction, performance and enforcement.\n(d) Each Person giving or making any notice, request, demand or other communication (each, a “Notice”) pursuant to\nthis Instrument shall\n(i) give the Notice in writing; and\n(ii) use one of the following methods of delivery, each of which for purposes of this Agreement is a writing:\n(A)  Personal delivery.\n(B)  Registered or Certified Mail, in each case, return receipt requested and postage prepaid.\n(C)  Nationally recognized overnight courier, with all fees prepaid.\n(e) Each Person giving a Notice shall address the Notice to the recipient (the “Addressee”) at the address given on the\nsignature page of this Instrument or to a changed address designated in a Notice.\n(f) A Notice is effective only if the person giving the Notice has complied with subsections (d) and (e) and if the\nAddressee has received the Notice. A Notice is deemed to have been received upon receipt as indicated by the date on\nthe signed receipt, provided, however, that if the Addressee rejects or otherwise refuses to accept the Notice, or if the\nNotice cannot be delivered because of a change in address for which no Notice was given, then upon such rejection,\nrefusal or inability to deliver such Notice will be deemed to have been received. Despite the other clauses of this\nsubsection (f), if any Notice is received after 5:00 p.m. on a business day where the Addressee is located, or on\na day that is not a business day where the Addressee is located, then the Notice is deemed received at 9:00 a.m. on the\nnext business day where the Addressee is located.\n(g) This instrument shall not be amended except by a subsequent written instrument that has been executed by\nParticipant and on behalf of Tiffany by a duly authorized officer of Tiffany. Participant’s obligations under this\ninstrument may not be waived, except pursuant to a writing executed on behalf of Tiffany or as otherwise provided in\nSection 6 above.\n(h) This instrument constitutes the final expression of Participant’s post-employment confidentiality and non-\ncompetition obligations. It is the complete and exclusive expression of those obligations and all prior and\ncontemporaneous negotiations and agreement between the parties on those matters are expressly merged into and\nsuperseded by this Agreement.\n(i) Any reference in this instrument to the singular includes the plural where appropriate, and any reference in this\ninstrument to the masculine gender includes the feminine and neuter genders where appropriate. The descriptive\nheadings of the sections of this instrument are for convenience only and do not constitute part of this instrument.\nIN WITNESS WHEREOF, this instrument has been executed on the date first written above.\nParticipant\nName:\nNotice Address:\n10\nTiffany and Company\nBy:\nName:\nTitle:\n \nNotice Address:\nThe Board of Directors\nTiffany and Company\nCare of:\nLegal Department\n200 Fifth Avenue\nNew York, NY 10022\n11	EX-10.28R 5 1028r_formofnoncompetiti.htm EXHIBIT\nExhibit 10.28r\nNON-COMPETITION AND CONFIDENTIALITY COVENANTS\nTHIS INSTRUMENT is made and given this day of 2014 by ("Participant") to and for\nthe benefit of Tiffany and Company, a New York corporation and its Affiliates (as defined below) with reference to the\nfollowing facts and circumstances:\nA.\nParticipant wishes to receive Equity Awards which might be granted to Participant in the future or which have\nbeen granted to Participant on the condition that Participant executes and delivers this instrument;\nB.\nParticipant wishes to have Excess DCRB Contributions made on his behalf by Tiffany pursuant to the terms\nof the Deferral Plan;\nC.\nParticipant is willing to make the promises set forth in this instrument, and to execute and deliver this\ninstrument, in order to be eligible to (i) receive Equity Awards in the future and to have the benefit of Equity\nAwards which have been granted to Participant on the condition that Participant executes and delivers this\ninstrument and (ii) to have the benefit of Excess DCRB Contributions;\nD.\nParticipant understands that Equity Awards and any Excess DCRB Contributions and Investment Fund\nperformance credited to such contributions in a Participant's Deferred Benefit Accounts may be forfeited\nif\nParticipant breaches the covenants contained in this instrument;\nE.\nParticipant understands that the Proceeds of Equity Awards may become due and payable by Participant\nto\nTiffany and Company if Participant breaches the covenants contained in this instrument;\nF.\nParticipant agrees that the receipt of one or more Equity Awards is full and fair and consideration for the\ncovenants made in this instrument.\nNOW THEREFORE, Participant hereby agrees as follows:\n1. Defined Terms. The initially capitalized words and phrases set forth below shall have the meanings ascribed to them\nbelow:\n"Affiliate" shall mean, with reference to any Person, any second Person that controls, is controlled by, or is under\ncommon control with, any such first Person, directly or indirectly.\n"Board" means the board of directors of Tiffany and Company, a New York corporation.\n"Cause" means a termination of Participant's employment, involuntary on Participant's part, which is the result of:\n(i)\nParticipant's conviction or plea of no contest to a felony involving financial impropriety or a felony which\nwould tend to subject the Company or any of its Affiliates to public criticism or materially interfere with\nParticipant's continued service to the Company or its Affiliate;\n(ii)\nParticipant's willful and unauthorized disclosure of material Confidential Information which disclosure\nactually results in substantive harm to the Company's or its Affiliate's business or puts such business at an\nactual competitive disadvantage;\n(iii)\nParticipant's willful failure or refusal to perform substantially all such proper and achievable directives\nissued by Participant's superior (other than: (A) any such failure resulting from Participant's incapacity\ndue to physical or mental illness, or (B) any such refusal made by Participant in good faith because\nParticipant believes such directives to be illegal, unethical or immoral) after a written demand for\nsubstantial performance is delivered to Participant on behalf of Company, which demand specifically\nidentifies the manner in which Participant has not substantially performed Participant's duties, and which\nperformance is not substantially corrected by Participant within ten (10) days of receipt of such demand;\n(iv)\nParticipant's commission of any willful act which is intended by Participant to result in his personal\nenrichment at the expense of the Company or any of its Affiliates, or which could reasonably be expected\nby him to materially injure the reputation, business or business relationships of the Company or any of its\nAffiliates;\n(v)\nA theft, fraud or embezzlement perpetrated by Participant upon Company or any of its Affiliates.\n"Change in Control" means a change in control of Parent of a nature that would be required to be reported in response to\nItem 6(e) of Schedule 14A of Regulation 14A promulgated under the Exchange Act, whether or not Parent is then\nsubject to such reporting requirement; provided, however, that, anything in this Agreement to the contrary\nnotwithstanding, a Change in Control shall be deemed to have occurred if:\n(i)\nany Person, or any syndicate or group deemed to be a person under Section 14(d)(2) of the Exchange Act,\nexcluding Parent or any of its Affiliates, a trustee or any fiduciary holding securities under an employee\nbenefit plan of Parent or any of its Affiliates, an underwriter temporarily holding securities pursuant to an\noffering of such securities or a\n2\ncorporation owned, directly or indirectly by stockholders of Parent in substantially the same proportion as\ntheir ownership of Parent, is or becomes the "beneficial owner" (as defined in Rule 13d-3 of the General\nRules and Regulations under the Exchange Act), directly or indirectly, of securities of Parent representing\nThirty-five percent (35%) or more of the combined voting power of Parent's then outstanding securities\nentitled to vote in the election of directors of Parent;\n(ii)\nten (10) days following the "Shares Acquisition Date" if any Person has in fact become and then remains\nan "Acquiring Person" under the Rights Plan;\n(iii)\nif the Parent Board should resolve to redeem the "Rights" under the Rights Plan in response to a proposal\nby any Person to acquire, directly or indirectly, securities of Parent representing Fifteen percent (15%) or\nmore of the combined voting power of Parent's then outstanding securities entitled to vote in the election\nof directors of Parent;\n(iv)\nif the Incumbent Directors cease to constitute a majority of the Parent Board; provided, however, that no\nperson shall be deemed an Incumbent Director if he or she was appointed or elected to the Parent Board\nafter having been designated to serve on the Parent Board by a Person who has entered into an agreement\nwith Parent to effect a transaction described in clauses (i), (iii), (v), (vi), (vii), (viii) or (ix) of this\ndefinition;\n(v)\nthere occurs a reorganization, merger, consolidation or other corporate transaction involving Parent, in\neach case with respect to which the stockholders of Parent immediately prior to such transaction do not,\nimmediately after such transaction, own more than Fifty percent (50%) of the combined voting power\nof\nthe Parent or other corporation resulting from such transaction, as the case may be;\n(vi)\nall or substantially all of the assets of Parent are sold, liquidated or distributed, except to an Affiliate of\nParent;\n(vii)\nall or substantially all of the assets of Tiffany and Company are sold, liquidated or distributed, except to\nan Affiliate of Parent;\n(viii)\nany Person, or any syndicate or group deemed to be a person under Section 14(d)(2) of the Exchange Act,\nexcluding Parent or any of its Affiliates, a trustee or any fiduciary holding securities under an employee\nbenefit\nplan of Parent or any of its Affiliates, an underwriter temporally holding securities pursuant to\nan\noffering of such securities or a corporation owned, directly or indirectly by stockholders of Parent in\nsubstantially the same proportion as their ownership of Parent, is or becomes the "beneficial owner" (as\ndefined in Rule 13d-3 of the General\n3\nRules and Regulations under the Exchange Act), directly or indirectly, of securities of Tiffany and\nCompany representing Fifty percent (50%) or more of the combined voting power of Tiffany and\nCompany's then outstanding securities entitled to vote in the election of directors of Tiffany and\nCompany; or\n(ix)\nthere is a "change of control" or a "change in the effective control" of Parent within the meaning of\nSection 280G of the Code and the Regulations.\n"Change in Control Date" shall mean the date on which a Change of Control occurs.\n"Confidential Information" means all information relating in any manner to Tiffany or its business, including but not\nlimited to, contemplated new products and services, marketing and advertising campaigns, sales projections, creative\ncampaigns and themes, financial information, budgets and projections, system designs, employees, management\nprocedures and systems, employee training materials, equipment, production plans and techniques, product and materials\nspecifications, product designs and design techniques, client information (including purchase history and client\nidentifying information) and vendor information (including the identity of vendors and information concerning the\ncapacity of or products or pricing provided by specific vendors); notwithstanding the foregoing, "Confidential\nInformation" shall not include information that becomes generally publicly available other than as a result of a disclosure\nby Participant or that becomes available to Participant on a non-confidential basis from a Person that to the Participant's\nknowledge, after due inquiry, is not bound by a duty of confidentiality.\n"Covered Employee" means any person who, at any date relevant to this Agreement, is an employee of Tiffany or who\nwas an employee of Tiffany during the one-year period previous to the date relevant to this Agreement.\n"Deferral Plan" means the Tiffany and Company Amended and Restated Executive Deferral Plan as it may be further\namended from time to time.\n"Deferred Benefit Accounts" means Deferred Benefit Accounts under the Deferral Plan.\n"Duration of Non-Competition Covenant" means the period beginning with Participant's Termination Date and ending\nupon the first to occur of the following: (i) the second year anniversary of Participant's Termination Date, (ii)\nParticipant's Change of Control Date or (iii) Participant's 60th birthday provided that, in no circumstance shall\nthe\nDuration of this Covenant be less than six months.\n"Equity Awards" means any grant of options to purchase, restricted shares of, stock units that may be settled in, or stock\nappreciation rights that may be measured by appreciation in the value of, the Common Stock of Tiffany & Co., a\nDelaware corporation, including any grants made under the terms of the 1998 Employee Incentive Plan or any plan\n4\nadopted by Tiffany & Co. subsequent to the date of this instrument including grants made both before and after the date\nof this instrument.\n"Excess DCRB Contributions" means the contribution described in Sections 3.3 and 3.4 of the Deferral Plan.\n"Investment Fund" shall have the meaning ascribed to that term in the Deferral Plan.\n"Jewelry" means jewelry (including but not limited to precious metal or silver jewelry or jewelry containing gemstones)\nand watches.\n"Parent" means Tiffany & Co., a Delaware corporation.\n"Person" means any individual, firm, corporation, partnership, limited partnership, limited liability partnership, business\ntrust, limited liability company, unincorporated association or other entity, and shall include any successor (by merger or\notherwise) of such entity.\n"Proceeds of Equity Award" means, in U.S. dollars, (i) with respect to an Equity Award of restricted stock or stock units,\nthe value the shares on the date the Equity Award vests, and, (ii) with respect to an Equity Award that is an option to\npurchase or a stock appreciation right, the spread between the strike price and the market value for the underlying shares\non the exercise date, in each of cases (i) and (ii) measured by the simple average of the high and low selling prices on\nthe\nprincipal market on which the shares are traded as of vesting or exercise date, as the case may be, if such vesting or\nexercise date is a trading date; if such vesting or exercise date is not a trading date, then as of trading date next following\nthe vesting or exercise date.\n"Normal Retirement Age" means the later of (i) Participant's 65th birthday or (ii) the 5th anniversary from his date of\nhire.\n"Retail Jewelry Trade" means the operation of one or more retail outlets (including stores-within-stores, leased\ndepartments or concessions) selling Jewelry in any city in the world in which a TIFFANY & CO. store is located at the\ntime in question; for the purpose of this definition, a retail outlet will not be deemed engaged in the Retail Jewelry Trade\nif less than 5% of the items displayed for sale in such outlet are Jewelry, so that, by way of example, an apparel store that\noffers Jewelry as an incidental item would not be deemed engaged in the Retail Jewelry Trade.\n"Rights Plan" means the Amended and Restated Rights Agreement Dated as of September 22, 1998 by and between\nTiffany & Co., a Delaware corporation, and ChaseMellon Shareholder Services L.L.C., as Rights Agent, as such\nAgreement may be further amended from time to time.\n5\n"Termination Date" means the date Participant ceases to be an employee of Tiffany or its Affiliate.\n"Tiffany" means Tiffany and Company, a New York corporation, and if the context so requires, Tiffany and Company\nand/or any Affiliate of Tiffany and Company, such term to be interpreted broadly so as to give rights equivalent to\nTiffany and Company to any Affiliate of Tiffany and Company.\n"Wholesale Jewelry Trade" means the sale of Jewelry or gemstones to the Retail Jewelry Trade, the development or\ndesign of Jewelry for sale to the Retail Jewelry Trade or the production of Jewelry for sale to the Retail Jewelry Trade\nregardless of where in the world such activities are conducted.\n2. Non-Competition. Participant agrees that for the Duration of the Non-Competition Covenant Participant will not\ndirectly or indirectly (whether as director, officer, consultant, principal, owner, member, partner, advisor, financier,\nemployee, agent or otherwise):\n(i) engage in, assist, have any interest in or contribute Participant's knowledge and abilities to, any business or\nentity in the Retail Jewelry Trade or in the Wholesale Jewelry Trade or seeking to enter or about to become engaged in\nthe Retail Jewelry Trade or the Wholesale Jewelry Trade (provided that this subsection shall not prohibit an investment\nby Participant not exceeding five percent of the outstanding securities of a publicly traded company);\n(ii) employ, attempt to employ, or assist anyone in employing a Covered Employee (including by influencing any\nCovered Employee to terminate his/her employment with Tiffany or to accept employment with any Person); or\n(iii) attempt in any manner to solicit jewelry purchases by any client of Tiffany or persuade any client of Tiffany\nto cease doing business or reduce the amount of business that such client has customarily done with Tiffany.\nThe provisions of Section 2(i) above shall not apply if Participant's employment with Tiffany or Tiffany's Affiliate is\nterminated by Tiffany or such Affiliate for reasons other than Cause or if, having reached Participant's Normal\nRetirement Age or Participant's Change of Control Date, Participant voluntarily resigns from such employment. The\nprovisions\nof\nthis\nSection\n2\nmay\nbe\nwaived\nby\nthe\nBoard,\nin\nwhole\nor\nin\npart,\nif\ndeemed\nby\nthe\nBoard\nto\nbe\nin\nthe\nbest\ninterests of Tiffany and Company, provided, however, that if the Participant is, on or within six months prior to\nParticipant's Termination Date, an officer of Tiffany & Co., a Delaware corporation, then the provisions of this Section\n2\nmay only be waived by the Compensation Committee (or its Stock Option Subcommittee) of the Board of Directors of\nsaid Tiffany & Co.\n3. Confidentiality.. Participant acknowledges that Participant has had access to Confidential Information. Participant\nagrees not use to the detriment of Tiffany or disclose any Confidential Information. If the Participant is requested in any\ncase by a court or governmental body to make any disclosure of Confidential Information, the\n6\nParticipant shall (i) promptly notify Tiffany in writing, (ii) consult with and assist Tiffany at Tiffany's expense in\nobtaining an injunction or other appropriate remedy to prevent such disclosure, and (iii) use Participant's reasonable\nefforts to obtain at the Company's expense a protective order or other reliable assurance that confidential treatment will\nbe accorded to any Confidential Information that must be disclosed. Subject to the foregoing sentence, Participant may\nfurnish that portion (and only that portion) of the Confidential Information that, in the written opinion of Participant's\ncounsel\n(the form and substance of which opinion shall be reasonably acceptable to Tiffany), the Participant is legally\ncompelled or otherwise required to disclose or else stand liable for contempt or suffer other material penalty. The\nobligations in this section shall continue beyond the Duration of the Non-Competition Covenant.\n4. Forfeiture of Equity Awards and Return of Proceeds of Equity Equity Awards Awards in the Event of Breach; Forfeiture of\nVested DCRB Contributions. Should Participant breach Participant's obligations under Section 2 above, Participant\nshall:\n(i) forfeit and lose all rights under any Equity Award, whether or not such Equity Award shall have vested, and\nsuch Equity Award shall thereupon become null and void;\n(ii) immediately pay to Tiffany and Company the Proceeds of Equity Award for (a) each grant of stock option or\nstock appreciation right that was exercised and (b) each grant of restricted stock or stock units that has vested, in both\ncases (a) and (b), within the following period: beginning 180 days prior to Participant's Termination Date and including\nthe entire period of the Duration of Non-Competition Covenant;\n(iii) forfeit any Excess DCRB Contributions and Investment Fund performance credited to such contributions in\nParticipant's Deferred Benefit Accounts that would otherwise be payable to Participant or his Beneficiary under the\nDeferral Plan; and\n(iv) promptly repay to Tiffany and Company any amounts paid from any Excess DCRB Contributions and\nInvestment Fund performance credited to such contributions in Participant's Deferred Benefit Accounts that have been\npaid to Participant or his Beneficiary under the Deferral Plan prior to such breach.\n5. Enforcement.\n(i) Participant agrees that the restrictions set forth in this instrument are reasonable and necessary to protect the\ngoodwill of Tiffany. If any of the provisions set forth herein is deemed invalid, illegal or unenforceable based upon\nduration, geographic scope or otherwise, Participant agrees that such provision shall be modified to make it enforceable\nto the fullest extent permitted by law.\n(ii) In the event of breach or threatened breach by Participant of the provisions set forth in this instrument,\nParticipant acknowledges that Tiffany will be irreparably harmed and that monetary damages (including loss of the\nBenefit) shall be an insufficient remedy to Tiffany. Therefore, Participant consents to the enforcement of this instrument\n7\nby means of temporary or permanent injunction and other appropriate equitable relief in any competent court, in addition\nto any other remedies Tiffany may have under this Agreement or otherwise.\n6.\nProcedure to Obtain Determination. Should Participant wish to obtain a determination that any proposed\nemployment, disclosure, arrangement or association (each a "Proposed Transaction") is not prohibited hereunder,\nParticipant shall direct a written request to the Board. Such request shall fully describe the Proposed Transaction. Within\n30 days after receipt of such request, the Board may (i) issue such a determination in writing, (ii) issue its refusal of such\nrequest in writing, or (iii) issue a written request for more written information concerning the Proposed Transaction.\nIn\nthe event that alternative (iii) is elected (which election may be made on behalf of the Board by the Legal Department of\nTiffany and Company without action by the Board), any action on Participant's request will be deferred for ten (10) days\nfollowing\nreceipt by said Legal Department of the written information requested. Failure of the Board to act within\nany\nof the time periods specified in this Section 6 shall be deemed a determination that the Proposed Transaction is not\nprohibited hereunder. A determination made or deemed made under this Section 6 shall be limited in effect to the\nProposed Transaction described in the submitted materials and shall not be binding or constitute a waiver with respect to\nany other Proposed Transaction, whether proposed by such Participant or any other Person. In the event that Participant\nwishes\nto\nseek\na\ndetermination\nthat\nemployment\nwith\na\nmanagement\nconsulting\nfirm,\nan\naccounting\nfirm,\na\nlaw\nfirm\nor\nsome other provider of consulting services to a wide variety clients will not be prohibited hereunder should such firm, at\nsome unspecified time, provide services to a Person in the Retail Jewelry Trade or the Wholesale Jewelry Trade,\nParticipant may seek a determination hereunder; in submitting such a Proposed Transaction, the Participant should\nspecify the extent that Participant will be involved in or can be excluded from involvement in the provision of such\nservices. In a making any determination under this Section 6, the Board shall not be deemed to be acting as a fiduciary\nwith respect to the Participant or any beneficiary of the Participant and shall be under no obligation to issue a\ndetermination that any Proposed Transaction is not prohibited hereunder.\n7. Arbitration and Equitable Relief. Participant and Tiffany agree that any and all disputes arising out or relating to\nthe interpretation or application of this instrument, including any dispute concerning whether any conduct is in violation\nof Section 2 or 3 above, shall be subject to arbitration in New York, New York, under the then existing Commercial\nArbitration Rules of the American Arbitration Association. Arbitration proceedings shall be conducted by three\narbitrators. Without limit to their general authority, the arbitrators shall have the right to order reasonable discovery in\naccordance with the Federal Rules of Civil Procedure. The final decision of the arbitrators shall be binding and\nenforceable without further legal proceedings in court or otherwise, provided that either party to such arbitration may\nenter judgment upon the award in any court having jurisdiction. The final decision arising from the arbitration shall be\naccompanied\nby\na\nwritten\nopinion\nand\ndecision\nwhich\nshall\ndescribe\nthe\nrational\nunderlying\nthe\naward\nand\nshall\ninclude\nfindings of fact and conclusions of law. The cost of such arbitration shall be borne equally by the parties and each party\nto the arbitration shall bear its own\n8\nattorneys fees. Notwithstanding any provision in this Section 7, the requirement to arbitrate disputes shall not apply to\nany action to enforce this instrument by means of temporary or permanent injunction or other appropriate equitable\nrelief.\n8. Miscellaneous Provisions.\n(a) Tiffany may assign its rights to enforce this instrument to any of its Affiliates. Participant understands and agrees\nthat the promises in this instrument are for the benefit of Tiffany (which term includes the Tiffany and Company and\nits\nAffiliates) and for the benefit of the successors and assigns of Tiffany and its Affiliates.\n(b) Any determination made by the Board under Section 6 above shall bind Tiffany and Company and its Affiliates.\n(c)\nThe laws of the State of New York, without giving effect to its conflicts of law principles, govern all matters arising\nout of or relating to this instrument and all of the prohibitions and remedies it contemplates, including, without\nlimitation, its validity, interpretation, construction, performance and enforcement.\n(d) Each Person giving or making any notice, request, demand or other communication (each, a "Notice") pursuant to\nthis Instrument shall\n(i) give the Notice in writing; and\n(ii)\nuse one of the following methods of delivery, each of which for purposes of this Agreement is a writing:\n(A)\nPersonal delivery.\n(B)\nRegistered or Certified Mail, in each case, return receipt requested and postage prepaid.\n(C)\nNationally recognized overnight courier, with all fees prepaid.\n(e) Each Person giving a Notice shall address the Notice to the recipient (the "Addressee") at the address given on the\nsignature page of this Instrument or to a changed address designated in a Notice.\n(f) A Notice is effective only if the person giving the Notice has complied with subsections (d) and (e) and if the\nAddressee has received the Notice. A Notice is deemed to have been received upon receipt as indicated by the date on\nthe signed receipt, provided, however, that if the Addressee rejects or otherwise refuses to accept the Notice, or if the\nNotice\ncannot\nbe\ndelivered\nbecause\nof\na\nchange\nin\naddress\nfor\nwhich\nno\nNotice\nwas\ngiven,\nthen\nupon\nsuch\nrejection,\nrefusal or inability to deliver such Notice will be deemed to have been received. Despite the other clauses of this\nsubsection (f), if any Notice is received after 5:00 p.m. on a business day where the Addressee is located, or on\n9\na day that is not a business day where the Addressee is located, then the Notice is deemed received at 9:00 a.m. on the\nnext business day where the Addressee is located.\n(g) This instrument shall not be amended except by a subsequent written instrument that has been executed by\nParticipant and on behalf of Tiffany by a duly authorized officer of Tiffany. Participant's obligations under this\ninstrument may not be waived, except pursuant to a writing executed on behalf of Tiffany or as otherwise provided in\nSection 6 above.\n(h) This instrument constitutes the final expression of Participant's post-employment confidentiality and non-\ncompetition obligations. It is the complete and exclusive expression of those obligations and all prior and\ncontemporaneous negotiations and agreement between the parties on those matters are expressly merged into and\nsuperseded by this Agreement.\n(i) Any reference in this instrument to the singular includes the plural where appropriate, and any reference in this\ninstrument to the masculine gender includes the feminine and neuter genders where appropriate. The descriptive\nheadings of the sections of this instrument are for convenience only and do not constitute part of this instrument.\nIN WITNESS WHEREOF, this instrument has been executed on the date first written above.\nParticipant\nName:\nNotice Address:\n10\nAccepted and agreed (as to Section 7)\nTiffany and Company\nBy:\nName:\nTitle:\nNotice Address:\nThe Board of Directors\nTiffany and Company\nCare of:\nLegal Department\n200 Fifth Avenue\nNew York, NY 10022\n11	EX-10 .28R 5 ex1028r_formofnoncompetiti.htm EXHIBIT\nExhibit 10.28r\nNON-COMPETITION AND CONFIDENTIALITY COVENANTS\nTHIS INSTRUMENT is made and given this ___ day of _________ 2014 by __________(“Participant”) to and for\nthe benefit of Tiffany and Company, a New York corporation and its Affiliates (as defined below) with reference to the\nfollowing facts and circumstances:\nA.\nParticipant wishes to receive Equity Awards which might be granted to Participant in the future or which have\nbeen granted to Participant on the condition that Participant executes and delivers this instrument;\nB.\nParticipant wishes to have Excess DCRB Contributions made on his behalf by Tiffany pursuant to the terms\nof the Deferral Plan;\nC.\nParticipant is willing to make the promises set forth in this instrument, and to execute and deliver this\ninstrument, in order to be eligible to (i) receive Equity Awards in the future and to have the benefit of Equity\nAwards which have been granted to Participant on the condition that Participant executes and delivers this\ninstrument and (ii) to have the benefit of Excess DCRB Contributions;\nD.\nParticipant understands that Equity Awards and any Excess DCRB Contributions and Investment Fund\nperformance credited to such contributions in a Participant’s Deferred Benefit Accounts may be forfeited if\nParticipant breaches the covenants contained in this instrument;\nE.\nParticipant understands that the Proceeds of Equity Awards may become due and payable by Participant to\nTiffany and Company if Participant breaches the covenants contained in this instrument;\nF.\nParticipant agrees that the receipt of one or more Equity Awards is full and fair and consideration for the\ncovenants made in this instrument.\nNOW THEREFORE, Participant hereby agrees as follows:\n1. Defined Terms. The initially capitalized words and phrases set forth below shall have the meanings ascribed to them\nbelow:\n“Affiliate” shall mean, with reference to any Person, any second Person that controls, is controlled by, or is under\ncommon control with, any such first Person, directly or indirectly.\n“Board” means the board of directors of Tiffany and Company, a New York corporation.\n“Cause” means a termination of Participant’s employment, involuntary on Participant’s part, which is the result of:\n(i)\nParticipant’s conviction or plea of no contest to a felony involving financial impropriety or a felony which\nwould tend to subject the Company or any of its Affiliates to public criticism or materially interfere with\nParticipant’s continued service to the Company or its Affiliate;\n(ii) Participant’s willful and unauthorized disclosure of material Confidential Information which disclosure\nactually results in substantive harm to the Company’s or its Affiliate’s business or puts such business at an\nactual competitive disadvantage;\n(iii) Participant’s willful failure or refusal to perform substantially all such proper and achievable directives\nissued by Participant’s superior (other than: (A) any such failure resulting from Participant’s incapacity\ndue to physical or mental illness, or (B) any such refusal made by Participant in good faith because\nParticipant believes such directives to be illegal, unethical or immoral) after a written demand for\nsubstantial performance is delivered to Participant on behalf of Company, which demand specifically\nidentifies the manner in which Participant has not substantially performed Participant’s duties, and which\nperformance is not substantially corrected by Participant within ten (10) days of receipt of such demand;\n(iv) Participant’s commission of any willful act which is intended by Participant to result in his personal\nenrichment at the expense of the Company or any of its Affiliates, or which could reasonably be expected\nby him to materially injure the reputation, business or business relationships of the Company or any of its\nAffiliates;\n(v) A theft, fraud or embezzlement perpetrated by Participant upon Company or any of its Affiliates.\n“Change in Control” means a change in control of Parent of a nature that would be required to be reported in response to\nItem 6(e) of Schedule 14A of Regulation 14A promulgated under the Exchange Act, whether or not Parent is then\nsubject to such reporting requirement; provided, however, that, anything in this Agreement to the contrary\nnotwithstanding, a Change in Control shall be deemed to have occurred if:\n(i)\nany Person, or any syndicate or group deemed to be a person under Section 14(d)(2) of the Exchange Act,\nexcluding Parent or any of its Affiliates, a trustee or any fiduciary holding securities under an employee\nbenefit plan of Parent or any of its Affiliates, an underwriter temporarily holding securities pursuant to an\noffering of such securities or a\n2\ncorporation owned, directly or indirectly by stockholders of Parent in substantially the same proportion as\ntheir ownership of Parent, is or becomes the “beneficial owner” (as defined in Rule 13d-3 of the General\nRules and Regulations under the Exchange Act), directly or indirectly, of securities of Parent representing\nThirty-five percent (35%) or more of the combined voting power of Parent’s then outstanding securities\nentitled to vote in the election of directors of Parent;\n(ii) ten (10) days following the “Shares Acquisition Date” if any Person has in fact become and then remains\nan “Acquiring Person” under the Rights Plan;\n(iii) if the Parent Board should resolve to redeem the “Rights” under the Rights Plan in response to a proposal\nby any Person to acquire, directly or indirectly, securities of Parent representing Fifteen percent (15%) or\nmore of the combined voting power of Parent’s then outstanding securities entitled to vote in the election\nof directors of Parent;\n(iv) if the Incumbent Directors cease to constitute a majority of the Parent Board; provided, however, that no\nperson shall be deemed an Incumbent Director if he or she was appointed or elected to the Parent Board\nafter having been designated to serve on the Parent Board by a Person who has entered into an agreement\nwith Parent to effect a transaction described in clauses (i), (iii), (v), (vi), (vii), (viii) or (ix) of this\ndefinition;\n(v)\nthere occurs a reorganization, merger, consolidation or other corporate transaction involving Parent, in\neach case with respect to which the stockholders of Parent immediately prior to such transaction do not,\nimmediately after such transaction, own more than Fifty percent (50%) of the combined voting power of\nthe Parent or other corporation resulting from such transaction, as the case may be;\n(vi) all or substantially all of the assets of Parent are sold, liquidated or distributed, except to an Affiliate of\nParent;\n(vii) all or substantially all of the assets of Tiffany and Company are sold, liquidated or distributed, except to\nan Affiliate of Parent;\n(viii) any Person, or any syndicate or group deemed to be a person under Section 14(d)(2) of the Exchange Act,\nexcluding Parent or any of its Affiliates, a trustee or any fiduciary holding securities under an employee\nbenefit plan of Parent or any of its Affiliates, an underwriter temporally holding securities pursuant to an\noffering of such securities or a corporation owned, directly or indirectly by stockholders of Parent in\nsubstantially the same proportion as their ownership of Parent, is or becomes the “beneficial owner” (as\ndefined in Rule 13d-3 of the General\n3\nRules and Regulations under the Exchange Act), directly or indirectly, of securities of Tiffany and\nCompany representing Fifty percent (50%) or more of the combined voting power of Tiffany and\nCompany’s then outstanding securities entitled to vote in the election of directors of Tiffany and\nCompany; or\n(ix) there is a “change of control” or a “change in the effective control” of Parent within the meaning of\nSection 280G of the Code and the Regulations.\n“Change in Control Date” shall mean the date on which a Change of Control occurs.\n“Confidential Information” means all information relating in any manner to Tiffany or its business, including but not\nlimited to, contemplated new products and services, marketing and advertising campaigns, sales projections, creative\ncampaigns and themes, financial information, budgets and projections, system designs, employees, management\nprocedures and systems, employee training materials, equipment, production plans and techniques, product and materials\nspecifications, product designs and design techniques, client information (including purchase history and client\nidentifying information) and vendor information (including the identity of vendors and information concerning the\ncapacity of or products or pricing provided by specific vendors); notwithstanding the foregoing, “Confidential\nInformation” shall not include information that becomes generally publicly available other than as a result of a disclosure\nby Participant or that becomes available to Participant on a non-confidential basis from a Person that to the Participant’s\nknowledge, after due inquiry, is not bound by a duty of confidentiality.\n“Covered Employee” means any person who, at any date relevant to this Agreement, is an employee of Tiffany or who\nwas an employee of Tiffany during the one-year period previous to the date relevant to this Agreement.\n“Deferral Plan” means the Tiffany and Company Amended and Restated Executive Deferral Plan as it may be further\namended from time to time.\n“Deferred Benefit Accounts” means Deferred Benefit Accounts under the Deferral Plan.\n“Duration of Non-Competition Covenant” means the period beginning with Participant’s Termination Date and ending\nupon the first to occur of the following: (i) the second year anniversary of Participant’s Termination Date, (ii)\nParticipant’s Change of Control Date or (iii) Participant’s 60th birthday provided that, in no circumstance shall the\nDuration of this Covenant be less than six months.\n“Equity Awards” means any grant of options to purchase, restricted shares of, stock units that may be settled in, or stock\nappreciation rights that may be measured by appreciation in the value of, the Common Stock of Tiffany & Co., a\nDelaware corporation, including any grants made under the terms of the 1998 Employee Incentive Plan or any plan\n4\nadopted by Tiffany & Co. subsequent to the date of this instrument including grants made both before and after the date\nof this instrument.\n“Excess DCRB Contributions” means the contribution described in Sections 3.3 and 3.4 of the Deferral Plan.\n“Investment Fund” shall have the meaning ascribed to that term in the Deferral Plan.\n“Jewelry” means jewelry (including but not limited to precious metal or silver jewelry or jewelry containing gemstones)\nand watches.\n“Parent” means Tiffany & Co., a Delaware corporation.\n“Person” means any individual, firm, corporation, partnership, limited partnership, limited liability partnership, business\ntrust, limited liability company, unincorporated association or other entity, and shall include any successor (by merger or\notherwise) of such entity.\n“Proceeds of Equity Award” means, in U.S . dollars, (i) with respect to an Equity Award of restricted stock or stock units,\nthe value the shares on the date the Equity Award vests, and, (ii) with respect to an Equity Award that is an option to\npurchase or a stock appreciation right, the spread between the strike price and the market value for the underlying shares\non the exercise date, in each of cases (i) and (ii) measured by the simple average of the high and low selling prices on the\nprincipal market on which the shares are traded as of vesting or exercise date, as the case may be, if such vesting or\nexercise date is a trading date; if such vesting or exercise date is not a trading date, then as of trading date next following\nthe vesting or exercise date.\n“Normal Retirement Age” means the later of (i) Participant’s 65th birthday or (ii) the 5th anniversary from his date of\nhire.\n“Retail Jewelry Trade” means the operation of one or more retail outlets (including stores-within-stores, leased\ndepartments or concessions) selling Jewelry in any city in the world in which a TIFFANY & CO. store is located at the\ntime in question; for the purpose of this definition, a retail outlet will not be deemed engaged in the Retail Jewelry Trade\nif less than 5% of the items displayed for sale in such outlet are Jewelry, so that, by way of example, an apparel store that\noffers Jewelry as an incidental item would not be deemed engaged in the Retail Jewelry Trade.\n“Rights Plan” means the Amended and Restated Rights Agreement Dated as of September 22, 1998 by and between\nTiffany & Co., a Delaware corporation, and ChaseMellon Shareholder Services L.L .C ., as Rights Agent, as such\nAgreement may be further amended from time to time.\n5\n“Termination Date” means the date Participant ceases to be an employee of Tiffany or its Affiliate.\n“Tiffany” means Tiffany and Company, a New York corporation, and if the context so requires, Tiffany and Company\nand/or any Affiliate of Tiffany and Company, such term to be interpreted broadly so as to give rights equivalent to\nTiffany and Company to any Affiliate of Tiffany and Company.\n“Wholesale Jewelry Trade” means the sale of Jewelry or gemstones to the Retail Jewelry Trade, the development or\ndesign of Jewelry for sale to the Retail Jewelry Trade or the production of Jewelry for sale to the Retail Jewelry Trade\nregardless of where in the world such activities are conducted.\n2. Non-Competition. Participant agrees that for the Duration of the Non-Competition Covenant Participant will not\ndirectly or indirectly (whether as director, officer, consultant, principal, owner, member, partner, advisor, financier,\nemployee, agent or otherwise):\n(i) engage in, assist, have any interest in or contribute Participant’s knowledge and abilities to, any business or\nentity in the Retail Jewelry Trade or in the Wholesale Jewelry Trade or seeking to enter or about to become engaged in\nthe Retail Jewelry Trade or the Wholesale Jewelry Trade (provided that this subsection shall not prohibit an investment\nby Participant not exceeding five percent of the outstanding securities of a publicly traded company);\n(ii) employ, attempt to employ, or assist anyone in employing a Covered Employee (including by influencing any\nCovered Employee to terminate his/her employment with Tiffany or to accept employment with any Person); or\n(iii) attempt in any manner to solicit jewelry purchases by any client of Tiffany or persuade any client of Tiffany\nto cease doing business or reduce the amount of business that such client has customarily done with Tiffany.\nThe provisions of Section 2(i) above shall not apply if Participant’s employment with Tiffany or Tiffany’s Affiliate is\nterminated by Tiffany or such Affiliate for reasons other than Cause or if, having reached Participant’s Normal\nRetirement Age or Participant’s Change of Control Date, Participant voluntarily resigns from such employment. The\nprovisions of this Section 2 may be waived by the Board, in whole or in part, if deemed by the Board to be in the best\ninterests of Tiffany and Company, provided, however, that if the Participant is, on or within six months prior to\nParticipant’s Termination Date, an officer of Tiffany & Co., a Delaware corporation, then the provisions of this Section 2\nmay only be waived by the Compensation Committee (or its Stock Option Subcommittee) of the Board of Directors of\nsaid Tiffany & Co.\n3. Confidentiality. Participant acknowledges that Participant has had access to Confidential Information. Participant\nagrees not use to the detriment of Tiffany or disclose any Confidential Information. If the Participant is requested in any\ncase by a court or governmental body to make any disclosure of Confidential Information, the\n6\nParticipant shall (i) promptly notify Tiffany in writing, (ii) consult with and assist Tiffany at Tiffany’s expense in\nobtaining an injunction or other appropriate remedy to prevent such disclosure, and (iii) use Participant’s reasonable\nefforts to obtain at the Company’s expense a protective order or other reliable assurance that confidential treatment will\nbe accorded to any Confidential Information that must be disclosed. Subject to the foregoing sentence, Participant may\nfurnish that portion (and only that portion) of the Confidential Information that, in the written opinion of Participant’s\ncounsel (the form and substance of which opinion shall be reasonably acceptable to Tiffany), the Participant is legally\ncompelled or otherwise required to disclose or else stand liable for contempt or suffer other material penalty. The\nobligations in this section shall continue beyond the Duration of the Non-Competition Covenant.\n4. Forfeiture of Equity Awards and Return of Proceeds of Equity Awards in the Event of Breach; Forfeiture of\nVested DCRB Contributions. Should Participant breach Participant’s obligations under Section 2 above, Participant\nshall:\n(i) forfeit and lose all rights under any Equity Award, whether or not such Equity Award shall have vested, and\nsuch Equity Award shall thereupon become null and void;\n(ii) immediately pay to Tiffany and Company the Proceeds of Equity Award for (a) each grant of stock option or\nstock appreciation right that was exercised and (b) each grant of restricted stock or stock units that has vested, in both\ncases (a) and (b), within the following period: beginning 180 days prior to Participant’s Termination Date and including\nthe entire period of the Duration of Non-Competition Covenant;\n(iii) forfeit any Excess DCRB Contributions and Investment Fund performance credited to such contributions in\nParticipant’s Deferred Benefit Accounts that would otherwise be payable to Participant or his Beneficiary under the\nDeferral Plan; and\n(iv) promptly repay to Tiffany and Company any amounts paid from any Excess DCRB Contributions and\nInvestment Fund performance credited to such contributions in Participant’s Deferred Benefit Accounts that have been\npaid to Participant or his Beneficiary under the Deferral Plan prior to such breach.\n5. Enforcement.\n(i) Participant agrees that the restrictions set forth in this instrument are reasonable and necessary to protect the\ngoodwill of Tiffany. If any of the provisions set forth herein is deemed invalid, illegal or unenforceable based upon\nduration, geographic scope or otherwise, Participant agrees that such provision shall be modified to make it enforceable\nto the fullest extent permitted by law.\n(ii) In the event of breach or threatened breach by Participant of the provisions set forth in this instrument,\nParticipant acknowledges that Tiffany will be irreparably harmed and that monetary damages (including loss of the\nBenefit) shall be an insufficient remedy to Tiffany. Therefore, Participant consents to the enforcement of this instrument\n7\nby means of temporary or permanent injunction and other appropriate equitable relief in any competent court, in addition\nto any other remedies Tiffany may have under this Agreement or otherwise.\n6. Procedure to Obtain Determination. Should Participant wish to obtain a determination that any proposed\nemployment, disclosure, arrangement or association (each a “Proposed Transaction”) is not prohibited hereunder,\nParticipant shall direct a written request to the Board. Such request shall fully describe the Proposed Transaction. Within\n30 days after receipt of such request, the Board may (i) issue such a determination in writing, (ii) issue its refusal of such\nrequest in writing, or (iii) issue a written request for more written information concerning the Proposed Transaction. In\nthe event that alternative (iii) is elected (which election may be made on behalf of the Board by the Legal Department of\nTiffany and Company without action by the Board), any action on Participant’s request will be deferred for ten (10) days\nfollowing receipt by said Legal Department of the written information requested. Failure of the Board to act within any\nof the time periods specified in this Section 6 shall be deemed a determination that the Proposed Transaction is not\nprohibited hereunder. A determination made or deemed made under this Section 6 shall be limited in effect to the\nProposed Transaction described in the submitted materials and shall not be binding or constitute a waiver with respect to\nany other Proposed Transaction, whether proposed by such Participant or any other Person. In the event that Participant\nwishes to seek a determination that employment with a management consulting firm, an accounting firm, a law firm or\nsome other provider of consulting services to a wide variety clients will not be prohibited hereunder should such firm, at\nsome unspecified time, provide services to a Person in the Retail Jewelry Trade or the Wholesale Jewelry Trade,\nParticipant may seek a determination hereunder; in submitting such a Proposed Transaction, the Participant should\nspecify the extent that Participant will be involved in or can be excluded from involvement in the provision of such\nservices. In a making any determination under this Section 6, the Board shall not be deemed to be acting as a fiduciary\nwith respect to the Participant or any beneficiary of the Participant and shall be under no obligation to issue a\ndetermination that any Proposed Transaction is not prohibited hereunder.\n7. Arbitration and Equitable Relief. Participant and Tiffany agree that any and all disputes arising out or relating to\nthe interpretation or application of this instrument, including any dispute concerning whether any conduct is in violation\nof Section 2 or 3 above, shall be subject to arbitration in New York, New York, under the then existing Commercial\nArbitration Rules of the American Arbitration Association. Arbitration proceedings shall be conducted by three\narbitrators. Without limit to their general authority, the arbitrators shall have the right to order reasonable discovery in\naccordance with the Federal Rules of Civil Procedure. The final decision of the arbitrators shall be binding and\nenforceable without further legal proceedings in court or otherwise, provided that either party to such arbitration may\nenter judgment upon the award in any court having jurisdiction. The final decision arising from the arbitration shall be\naccompanied by a written opinion and decision which shall describe the rational underlying the award and shall include\nfindings of fact and conclusions of law. The cost of such arbitration shall be borne equally by the parties and each party\nto the arbitration shall bear its own\n8\nattorneys fees. Notwithstanding any provision in this Section 7, the requirement to arbitrate disputes shall not apply to\nany action to enforce this instrument by means of temporary or permanent injunction or other appropriate equitable\nrelief.\n8. Miscellaneous Provisions.\n(a) Tiffany may assign its rights to enforce this instrument to any of its Affiliates. Participant understands and agrees\nthat the promises in this instrument are for the benefit of Tiffany (which term includes the Tiffany and Company and its\nAffiliates) and for the benefit of the successors and assigns of Tiffany and its Affiliates.\n(b) Any determination made by the Board under Section 6 above shall bind Tiffany and Company and its Affiliates.\n(c) The laws of the State of New York, without giving effect to its conflicts of law principles, govern all matters arising\nout of or relating to this instrument and all of the prohibitions and remedies it contemplates, including, without\nlimitation, its validity, interpretation, construction, performance and enforcement.\n(d) Each Person giving or making any notice, request, demand or other communication (each, a “Notice”) pursuant to\nthis Instrument shall\n(i) give the Notice in writing; and\n(ii) use one of the following methods of delivery, each of which for purposes of this Agreement is a writing:\n(A) Personal delivery.\n(B) Registered or Certified Mail, in each case, return receipt requested and postage prepaid.\n(C) Nationally recognized overnight courier, with all fees prepaid.\n(e) Each Person giving a Notice shall address the Notice to the recipient (the “Addressee”) at the address given on the\nsignature page of this Instrument or to a changed address designated in a Notice.\n(f) A Notice is effective only if the person giving the Notice has complied with subsections (d) and (e) and if the\nAddressee has received the Notice. A Notice is deemed to have been received upon receipt as indicated by the date on\nthe signed receipt, provided, however, that if the Addressee rejects or otherwise refuses to accept the Notice, or if the\nNotice cannot be delivered because of a change in address for which no Notice was given, then upon such rejection,\nrefusal or inability to deliver such Notice will be deemed to have been received. Despite the other clauses of this\nsubsection (f), if any Notice is received after 5:00 p.m . on a business day where the Addressee is located, or on\n9\na day that is not a business day where the Addressee is located, then the Notice is deemed received at 9:00 a.m . on the\nnext business day where the Addressee is located.\n(g) This instrument shall not be amended except by a subsequent written instrument that has been executed by\nParticipant and on behalf of Tiffany by a duly authorized officer of Tiffany. Participant’s obligations under this\ninstrument may not be waived, except pursuant to a writing executed on behalf of Tiffany or as otherwise provided in\nSection 6 above.\n(h) This instrument constitutes the final expression of Participant’s post-employment confidentiality and non-\ncompetition obligations. It is the complete and exclusive expression of those obligations and all prior and\ncontemporaneous negotiations and agreement between the parties on those matters are expressly merged into and\nsuperseded by this Agreement.\n(i) Any reference in this instrument to the singular includes the plural where appropriate, and any reference in this\ninstrument to the masculine gender includes the feminine and neuter genders where appropriate. The descriptive\nheadings of the sections of this instrument are for convenience only and do not constitute part of this instrument.\nIN WITNESS WHEREOF, this instrument has been executed on the date first written above.\nParticipant\n__________________________\nName:\nNotice Address:\n__________________________\n__________________________\n__________________________\n10\nAccepted and agreed (as to Section 7)\nTiffany and Company\nBy:______________________\nName:\nTitle:\nNotice Address:\nThe Board of Directors\nTiffany and Company\nCare of:\nLegal Department\n200 Fifth Avenue\nNew York, NY 10022\n11
ca5c99fea5c8e09d1e7fa6303f61688b.pdf	effective_date jurisdiction party term	EX-99.(E)(4) 3 d371520dex99e4.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(4)\nSTRICTLY CONFIDENTIAL\nJanuary 27, 2012\nSycamore Partners Management, L.L.C.\n9 West 57 Street, 31 Floor\nNew York, New York 10019\nAttention: Stefan Kaluzny\nManaging Director\nDear Mr. Kaluzny:\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is dated as of January 27, 2012 by and between\nSycamore Partners Management, L.L .C ., a Delaware limited liability company (the “Receiving Party”) and The Talbots,\nInc., a Delaware corporation (together with its subsidiaries, the “Company”).\n1.\nConfidential Information; Representatives. (a) The Receiving Party is considering a possible\nbusiness combination transaction (whether negotiated directly with the Company’s Board of Directors or otherwise) with\nrespect to the Company (the “Transaction”), and, in order to assist the Receiving Party in evaluating the possible\nTransaction, the Company is prepared to make available to the Receiving Party certain information concerning the\nbusiness, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a\ncondition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals,\npartners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates,\npotential sources of capital and financing, and financial advisors (collectively, “Representatives”) of the Receiving Party,\nthe Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this\nAgreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.\n(b)\nThe term “Confidential Information” shall include, without limitation, any and all information\nconcerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects\nthat is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before\nor after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans,\ncompilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda,\ndocuments or other materials (in whatever form maintained or conveyed, whether\nth\nst\ndocumentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information\nconcerning the Company or its business, operations, strategic initiatives, financing, employees, strategies or prospects\nprepared by or on behalf of the Receiving Party, any of the Receiving Party’s Representatives, the Company or any\nCompany Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives\ninvolving or relating to the Confidential Information.\n2.\nExcluded Information.\nThe Confidential Information shall not include information that the\nReceiving Party can demonstrate (a) is or becomes available to the public other than as a result of acts by the Receiving\nParty or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party’s possession prior to\ndisclosure by the Company, provided that such information, to the Receiving Party’s knowledge, was not subject to\nanother confidentiality agreement with the Company or another party, (c) has been independently developed by the\nReceiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving\nParty by a third party, to the Receiving Party’s knowledge, not bound by any duty or obligation of confidentiality on a\nnon-confidential basis.\n3.\nLimitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall,\nand shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible\nTransaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in\nconfidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that\n(i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by\napplicable law, regulation or legal or regulatory process; provided, that the Receiving Party shall have first complied\nwith the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the\nConfidential Information to the extent that the Company gives its prior written consent, and (iii) any information\ncontained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably\nrequire access to such information for the purpose of evaluating a possible Transaction and who agree to keep such\ninformation in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not\nmake any disclosure of any Confidential Information to any potential sources of equity financing without the Company’s\nprior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the\nReceiving Party or by any of its Representatives.\n(b)\nThe Receiving Party agrees that, for a period of eighteen months from the date of this Agreement,\nthe Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly,\n(i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or\n(ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee\nof the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the\npossible Transaction or about whom the Receiving Party receives Confidential\n2\nInformation; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such\nemployees of the Company shall not be considered a solicitation or unauthorized hiring.\n(c)\nIf the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information\nby it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such\nunauthorized disclosure or use.\n4.\nNon-Disclosure of Existence of Negotiations. Without the prior written consent of the Company\nor except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not\ndisclose to any person that any discussions or negotiations are taking place between the parties concerning a possible\nTransaction, including the content, timing and status of such discussions or negotiations (the “Discussion Information”).\n5.\nNo Representations by the Company. The Company will have the exclusive authority to decide\nwhat Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the\nCompany nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates\n(collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential\nInformation available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update\nany Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has\nmade or is making any representation or warranty, express or implied, as to the accuracy or completeness of any\nConfidential Information, and neither the Company nor any of the Company Representatives will have any liability to\nthe Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any\nConfidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and\nwarranties (if any) that are included in any final definitive written agreement that provides for the consummation of a\nnegotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving\nParty and the Company will have legal effect.\n6.\nStandstill Agreement. In consideration of the Confidential Information being furnished to the\nReceiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of\nthis Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the\nConfidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly\nrequested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not\n(and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their\nrespective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any\nproposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner,\nbeneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company\n(including any derivative securities with economic equivalents of ownership of\n3\nany of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the\nCompany, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are\nused in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence\nany person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in\na “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to\nany voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates,\n(d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board\nof directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any\naction that could require the Company to make any public disclosure, with respect to any of the matters set forth in this\nAgreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution\nand delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or\n(g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any\nother persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request\nthe Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this\nSection 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill\nPeriod shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive\nagreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or\nmore of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its\npreviously announced strategic review process without a definitive agreement to sell the Company, (C) the Company\nmakes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization,\ninsolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such\nproceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent\nthereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the\nStandstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the\napplicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders\nmeeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses\n(c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by\nclause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).\n7.\nReturn of Confidential Information.\nPromptly upon the written request of the Company, the\nReceiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports,\nmemoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or\nreflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of\nConfidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be\nbound by their\n4\nconfidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the\nforegoing, (a) the Receiving Party’s legal department and/or outside counsel may keep one copy of the Confidential\nInformation (in electronic or paper form) and, with respect to the Receiving Party’s Representatives who are accounting\nfirms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable\nlaw or regulation and (b) the Receiving Party and its Representatives may retain Confidential Information to the extent it\nis “backed-up” on its or their (as the case may be) electronic information management and communications systems or\nservers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such\ninformation so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this\nAgreement for a period of eighteen months from the date hereof.\n8.\n2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012\nannual stockholders meeting (with respect to the Company’s fiscal year ended January 28, 2012) will be held no earlier\nthan thirty-one days after the first anniversary of the Company’s 2011 annual stockholders meeting (with respect to the\nCompany’s fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release\nannouncing the date of its 2012 annual meeting on the date such press release is publicly issued.\n9.\nSubpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses\nthe Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion\nInformation under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another\ngovernmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company\nof the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability\nof taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion\nInformation is required, furnish only such portion of the Confidential Information or Discussion Information as the\nReceiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company,\ncooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the\nConfidential Information or Discussion Information or other reliable assurance that confidential treatment will be\naccorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be\ndisclosed.\n10.\nDefinitive Agreement. Unless and until a definitive written agreement between the Receiving\nParty and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor\nthe Company will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of\nthis or any other written or oral expression by either of them or their Representatives except, in the case of this\nAgreement, for the matters specifically agreed to herein.\n5\n11.\nRemedies. Each of the parties hereto acknowledges that in the event of any breach of the terms\nof this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties\nhereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction\n(which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.\n12.\nCommunications. Without the Company’s prior written consent, which may be withheld by the\nCompany in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other\nthan through the Company’s financial and legal advisors or such other persons, as designated by the Company in writing,\nany (a) communication concerning the Confidential Information, (b) requests for meetings with management of the\nCompany in connection with the possible Transaction or other transaction between the parties or (c) communication\nrelating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee\nof the Company.\n13.\nSecurities Laws.\nThe Receiving Party acknowledges that it is aware and that the Receiving\nParty and its Representatives have been advised that the United States securities laws prohibit any person having non-\npublic material information about a company from purchasing or selling securities of that company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such\nperson is likely to purchase or sell such securities.\n14.\nEntire Agreement; Amendments.\nThis Agreement represents the entire understanding and\nagreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived\nonly by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or\nwaiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective\nsuccessors and assigns.\n15.\nNo Waiver.\nNo failure or delay by either party in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further\nexercise thereof or the exercise of any right, power or privilege hereunder.\n16.\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws\nof the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and\nunconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York\nfor purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any\nprocess, summons, notice or document by U.S . registered mail to the address set forth at the end of this Agreement shall\nbe effective service of process for any action, suit or proceeding brought against such party; (c) irrevocably and\nunconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to\nthis Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally\n6\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit\nor proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State\nof New York has been brought in an inconvenient forum.\n17.\nExpenses.\nIn the event of litigation relating to this Agreement, if a court of competent\njurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-\nbreaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation,\nincluding any appeal therefrom.\n18.\nCaptions.\nThe Captions contained in this Agreement are for convenience only and shall not\naffect the construction or interpretation of any provisions of this Agreement.\n19.\nCounterparts. This Agreement may be executed in multiple counterparts, each of which shall\nbe deemed to be an original, but all of which shall constitute one and the same Agreement.\n20.\nSeverability. In the event any term of this Agreement is found by any court to be void or\notherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were\nabsent upon the date of its execution.\n21.\nNotices.\nAll notices and other communications required or permitted hereunder will be in\nwriting and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic\nfacsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the\naddress specified below:\nThe Talbots, Inc.\nAttention: Chief Operating Officer\nOne Talbots Drive\nHingham, MA 02043\nTelephone: 781-741-7600\nFacsimile: 781-741-4927\nwith copies to:\nThe Talbots, Inc.\nAttention: General Counsel\n211 South Ridge St.\nRye Brook, NY 10573\nTelephone: 914-934-8877\nFacsimile: 914-934-9136\nand\n7\nDewey & LeBoeuf LLP\nAttention: Morton A. Pierce, Esq.\nChang-Do Gong, Esq.\n1301 Avenue of the Americas\nNew York, NY 10019\nTelephone: 212-259-8000\nFacsimile: 212-259-6333\n22.\nNon-Private Equity Affiliates.\nNotwithstanding anything to the contrary provided elsewhere\nherein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and\nactivities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the\nprivate equity business and (b) the Confidential Information is not made available to Representatives of the Receiving\nParty and its affiliates who are not involved in the private equity business or who are engaged in investments that are not\nprivate equity investments and such ordinary course business services and activities are otherwise conducted without any\nreference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the\nReceiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including,\nwithout limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of\nthe United States).\n23.\nTermination. Except as otherwise specified herein, the obligations of the parties set forth in this\nAgreement shall terminate and be of no further force and effect eighteen months from the date hereof.\n[Remainder of Page Intentionally Left Blank]\n8\nIN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first\nwritten above.\nTHE TALBOTS, INC.\nBy /s/ Richard T. O’Connell, Jr.\nName: Richard T. O’Connell, Jr.\nTitle: Executive Vice President\nSYCAMORE PARTNERS MANAGEMENT,\nL.L.C .\nBy /s/ Stefan Kaluzny\nName: Stefan Kaluzny\nTitle: Managing Director	EX-99.(E)(4) 3 d371520dex99e4.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(4)\nSTRICTLY CONFIDENTIAL\nJanuary 27, 2012\nSycamore Partners Management, L.L.C.\n9 West 57t Street, 31st Floor\nNew York, New York 10019\nAttention: Stefan Kaluzny\nManaging Director\nDear Mr. Kaluzny:\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is dated as of January 27, 2012 by and between\nSycamore Partners Management, L.L..C., a Delaware limited liability company (the “Receiving Party”) and The Talbots,\nInc., a Delaware corporation (together with its subsidiaries, the “Company”).\n1. Confidential Information; Representatives. (a) The Receiving Party is considering a possible\nbusiness combination transaction (whether negotiated directly with the Company’s Board of Directors or otherwise) with\nrespect to the Company (the “Transaction”), and, in order to assist the Receiving Party in evaluating the possible\nTransaction, the Company is prepared to make available to the Receiving Party certain information concerning the\nbusiness, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a\ncondition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals,\npartners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates,\npotential sources of capital and financing, and financial advisors (collectively, “Representatives”) of the Receiving Party,\nthe Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this\nAgreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.\n(b) The term “Confidential Information” shall include, without limitation, any and all information\nconcerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects\nthat is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before\nor after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans,\ncompilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda,\ndocuments or other materials (in whatever form maintained or conveyed, whether\ndocumentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information\nconcerning the Company or its business, operations, strategic initiatives, financing, employees, strategies or prospects\nprepared by or on behalf of the Receiving Party, any of the Receiving Party’s Representatives, the Company or any\nCompany Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives\ninvolving or relating to the Confidential Information.\n2. Excluded Information. = The Confidential Information shall not include information that the\nReceiving Party can demonstrate (a) is or becomes available to the public other than as a result of acts by the Receiving\nParty or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party’s possession prior to\ndisclosure by the Company, provided that such information, to the Receiving Party’s knowledge, was not subject to\nanother confidentiality agreement with the Company or another party, (c) has been independently developed by the\nReceiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving\nParty by a third party, to the Receiving Party’s knowledge, not bound by any duty or obligation of confidentiality on a\nnon-confidential basis.\n3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall,\nand shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible\nTransaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in\nconfidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that\n(i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by\napplicable law, regulation or legal or regulatory process; provided, that the Receiving Party shall have first complied\nwith the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the\nConfidential Information to the extent that the Company gives its prior written consent, and (iii) any information\ncontained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably\nrequire access to such information for the purpose of evaluating a possible Transaction and who agree to keep such\ninformation in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not\nmake any disclosure of any Confidential Information to any potential sources of equity financing without the Company’s\nprior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the\nReceiving Party or by any of its Representatives.\n \n \n(b) The Receiving Party agrees that, for a period of eighteen months from the date of this Agreement,\nthe Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly,\n(i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or\n(ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee\nof the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the\npossible Transaction or about whom the Receiving Party receives Confidential\n2\nInformation; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such\nemployees of the Company shall not be considered a solicitation or unauthorized hiring.\n(0 If the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information\nby it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such\nunauthorized disclosure or use.\n4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the Company\nor except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not\ndisclose to any person that any discussions or negotiations are taking place between the parties concerning a possible\nTransaction, including the content, timing and status of such discussions or negotiations (the “Discussion Information”).\n5. No Representations by the Company. The Company will have the exclusive authority to decide\nwhat Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the\nCompany nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates\n(collectively, the “Company_Representatives”) will be under any obligation to make any particular Confidential\nInformation available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update\nany Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has\nmade or is making any representation or warranty, express or implied, as to the accuracy or completeness of any\nConfidential Information, and neither the Company nor any of the Company Representatives will have any liability to\nthe Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any\nConfidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and\nwarranties (if any) that are included in any final definitive written agreement that provides for the consummation of a\nnegotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving\nParty and the Company will have legal effect.\n6. Standstill Agreement. In consideration of the Confidential Information being furnished to the\nReceiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of\nthis Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the\nConfidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly\nrequested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not\n(and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their\nrespective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any\nproposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner,\nbeneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company\n(including any derivative securities with economic equivalents of ownership of\n3\nany of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the\nCompany, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are\nused in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence\nany person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in\na “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to\nany voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates,\n(d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board\nof directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any\naction that could require the Company to make any public disclosure, with respect to any of the matters set forth in this\nAgreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution\nand delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or\n(g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any\nother persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request\nthe Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this\nSection 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill\nPeriod shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive\nagreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or\nmore of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its\npreviously announced strategic review process without a definitive agreement to sell the Company, (C) the Company\nmakes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization,\ninsolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such\nproceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent\nthereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the\nStandstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the\napplicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders\nmeeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses\n(), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by\nclause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).\n7. Return of Confidential Information.  Promptly upon the written request of the Company, the\nReceiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports,\nmemoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or\nreflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of\nConfidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be\nbound by their\nconfidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the\nforegoing, (a) the Receiving Party’s legal department and/or outside counsel may keep one copy of the Confidential\nInformation (in electronic or paper form) and, with respect to the Receiving Party’s Representatives who are accounting\nfirms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable\nlaw or regulation and (b) the Receiving Party and its Representatives may retain Confidential Information to the extent it\nis “backed-up” on its or their (as the case may be) electronic information management and communications systems or\nservers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such\ninformation so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this\nAgreement for a period of eighteen months from the date hereof.\n8. 2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012\nannual stockholders meeting (with respect to the Company’s fiscal year ended January 28, 2012) will be held no earlier\nthan thirty-one days after the first anniversary of the Company’s 2011 annual stockholders meeting (with respect to the\nCompany’s fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release\nannouncing the date of its 2012 annual meeting on the date such press release is publicly issued.\n9. Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses\nthe Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion\nInformation under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another\ngovernmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company\nof the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability\nof taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion\nInformation is required, furnish only such portion of the Confidential Information or Discussion Information as the\nReceiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company,\ncooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the\nConfidential Information or Discussion Information or other reliable assurance that confidential treatment will be\naccorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be\ndisclosed.\n10. Definitive Agreement.  Unless and until a definitive written agreement between the Receiving\nParty and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor\nthe Company will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of\nthis or any other written or oral expression by either of them or their Representatives except, in the case of this\nAgreement, for the matters specifically agreed to herein.\n11. Remedies. Each of the parties hereto acknowledges that in the event of any breach of the terms\nof this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties\nhereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction\n(which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.\n12. Communications. Without the Company’s prior written consent, which may be withheld by the\nCompany in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other\nthan through the Company’s financial and legal advisors or such other persons, as designated by the Company in writing,\nany (a) communication concerning the Confidential Information, (b) requests for meetings with management of the\nCompany in connection with the possible Transaction or other transaction between the parties or (c) communication\nrelating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee\nof the Company.\n13. Securities Laws.  The Receiving Party acknowledges that it is aware and that the Receiving\nParty and its Representatives have been advised that the United States securities laws prohibit any person having non-\npublic material information about a company from purchasing or selling securities of that company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such\nperson is likely to purchase or sell such securities.\n14. Entire Agreement; Amendments.  This Agreement represents the entire understanding and\nagreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived\nonly by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or\nwaiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective\nsuccessors and assigns.\n15. No Waiver.  No failure or delay by either party in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further\nexercise thereof or the exercise of any right, power or privilege hereunder.\n16. Governing Law. This Agreement shall be governed and construed in accordance with the laws\nof the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and\nunconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York\nfor purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any\nprocess, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall\nbe effective service of process for any action, suit or proceeding brought against such party; (c) irrevocably and\nunconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to\nthis Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally\n6\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit\nor proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State\nof New York has been brought in an inconvenient forum.\n17. Expenses. In the event of litigation relating to this Agreement, if a court of competent\njurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-\nbreaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation,\nincluding any appeal therefrom.\n18. Captions.  The Captions contained in this Agreement are for convenience only and shall not\naffect the construction or interpretation of any provisions of this Agreement.\n19. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall\nbe deemed to be an original, but all of which shall constitute one and the same Agreement.\n20. Severability.  In the event any term of this Agreement is found by any court to be void or\notherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were\nabsent upon the date of its execution.\n21. Notices.  All notices and other communications required or permitted hereunder will be in\nwriting and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic\nfacsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the\naddress specified below:\nThe Talbots, Inc.\nAttention: Chief Operating Officer\nOne Talbots Drive\nHingham, MA 02043\nTelephone: 781-741-7600\nFacsimile: 781-741-4927\nwith copies to:\nThe Talbots, Inc.\nAttention: General Counsel\n211 South Ridge St.\nRye Brook, NY 10573\nTelephone: 914-934-8877\nFacsimile: 914-934-9136\nand\nDewey & LeBoeuf LLP\nAttention: Morton A. Pierce, Esq.\nChang-Do Gong, Esq.\n1301 Avenue of the Americas\nNew York, NY 10019\nTelephone: 212-259-8000\nFacsimile: 212-259-6333\n22. Non-Private Equity Affiliates. = Notwithstanding anything to the contrary provided elsewhere\nherein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and\nactivities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the\nprivate equity business and (b) the Confidential Information is not made available to Representatives of the Receiving\nParty and its affiliates who are not involved in the private equity business or who are engaged in investments that are not\nprivate equity investments and such ordinary course business services and activities are otherwise conducted without any\nreference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the\nReceiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including,\nwithout limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of\nthe United States).\n23. Termination. Except as otherwise specified herein, the obligations of the parties set forth in this\nAgreement shall terminate and be of no further force and effect eighteen months from the date hereof.\n[Remainder of Page Intentionally Left Blank]\nIN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first\nwritten above.\nTHE TALBOTS, INC.\nBy_/s/ Richard T. O’Connell, Jr.\nName: Richard T. O’Connell, Jr.\nTitle: Executive Vice President\nSYCAMORE PARTNERS MANAGEMENT,\nL.L.C.\nBy _/s/ Stefan Kaluzny\nName: Stefan Kaluzny\nTitle: Managing Director	EX-99.(E)(4) 3 d371520dex99e4.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(4)\nSTRICTLY CONFIDENTIAL\nJanuary 27, 2012\nSycamore Partners Management, L.L.C.\n9 West 57th Street, 31st Floor\nNew York, New York 10019\nAttention:\nStefan Kaluzny\nManaging Director\nDear Mr. Kaluzny:\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this "Agreement") is dated as of January 27, 2012 by and between\nSycamore Partners Management, L.L.C., a Delaware limited liability company (the "Receiving Party.") and The Talbots,\nInc., a Delaware corporation (together with its subsidiaries, the "Company.").\n1.\nConfidential Information; Representatives. (a) The Receiving Party is considering a possible\nbusiness combination transaction (whether negotiated directly with the Company's Board of Directors or otherwise) with\nrespect to the Company (the "Transaction"), and, in order to assist the Receiving Party in evaluating the possible\nTransaction, the Company is prepared to make available to the Receiving Party certain information concerning the\nbusiness, operations, strategy and prospects of the Company (all such information, the "Confidential Information"). As\na\ncondition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals,\npartners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates,\npotential sources of capita and financing, and financial advisors (collectively, "Representatives") of the Receiving Party,\nthe Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this\nAgreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.\n(b)\nThe term "Confidential Information" shall include, without limitation, any and all information\nconcerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects\nthat is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before\nor after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans,\ncompilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda,\ndocuments or other materials (in whatever form maintained or conveyed, whether\ndocumentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information\nconcerning the Company or its business, operations, strategic initiatives, financing, employees, strategies or prospects\nprepared by or on behalf of the Receiving Party, any of the Receiving Party's Representatives, the Company or any\nCompany Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives\ninvolving or relating to the Confidential Information.\n2.\nExcluded Information. The Confidential Information shall not include information that the\nReceiving\nParty\ncan\ndemonstrate\n(a)\nis\nor\nbecomes\navailable\nto\nthe\npublic\nother\nthan\nas\na\nresult\nof\nacts\nby\nthe\nReceiving\nParty or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party's possession prior\nto\ndisclosure by the Company, provided that such information, to the Receiving Party's knowledge, was not subject to\nanother confidentiality agreement with the Company or another party, (c) has been independently developed by the\nReceiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving\nParty by a third party, to the Receiving Party's knowledge, not bound by any duty or obligation of confidentiality on\na\nnon-confidential basis.\n3.\nLimitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall,\nand shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible\nTransaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in\nconfidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that\n(i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by\napplicable\nlaw,\nregulation\nor\nlegal\nor\nregulatory\nprocess;\nprovided,\nthat\nthe\nReceiving\nParty\nshall\nhave\nfirst\ncomplied\nwith the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the\nConfidential Information to the extent that the Company gives its prior written consent, and (iii) any information\ncontained in the Confidential Information may be disclosed to the Receiving Party's Representatives who reasonably\nrequire access to such information for the purpose of evaluating a possible Transaction and who agree to keep such\ninformation in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not\nmake any disclosure of any Confidential Information to any potential sources of equity financing without the Company's\nprior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the\nReceiving Party or by any of its Representatives.\n(b)\nThe Receiving Party agrees that, for a period of eighteen months from the date of this Agreement,\nthe Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly,\n(i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or\n(ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee\nof the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the\npossible Transaction or about whom the Receiving Party receives Confidential\n2\nInformation; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such\nemployees of the Company shall not be considered a solicitation or unauthorized hiring.\n(c)\nIf the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information\nby it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such\nunauthorized disclosure or use.\n4.\nNon-Disclosure of Existence of Negotiations. Without the prior written consent of the Company\nor except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not\ndisclose to any person that any discussions or negotiations are taking place between the parties concerning a possible\nTransaction, including the content, timing and status of such discussions or negotiations (the "Discussion Information").\n5.\nNo Representations by the Company. The Company will have the exclusive authority to\ndecide\nwhat Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the\nCompany nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates\n(collectively, the "Company Representatives") will be under any obligation to make any particular Confidential\nInformation available to the Receiving Party or any of the Receiving Party's Representatives or to supplement or update\nany Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has\nmade\nor\nis\nmaking\nany\nrepresentation\nor\nwarranty,\nexpress\nor\nimplied,\nas\nto\nthe\naccuracy\nor\ncompleteness\nof\nany\nConfidential Information, and neither the Company nor any of the Company Representatives will have any liability to\nthe Receiving Party or to any of the Receiving Party's Representatives relating to or resulting from the use of any\nConfidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and\nwarranties (if any) that are included in any final definitive written agreement that provides for the consummation of a\nnegotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving\nParty and the Company will have legal effect.\n6. Standstill Agreement. In consideration of the Confidential Information being furnished to the\nReceiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of\nthis Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the\nConfidential Information for the purpose of evaluating a possible Transaction, the "Standstill Period"), unless expressly\nrequested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not\n(and\nshall\ncause\nits\naffiliates\nnot\nto\nand\nshall\ncause\nits\nand\ntheir\nrespective\nRepresentatives\nacting\nat\nits\nand\ntheir\nrespective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any\nproposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner,\nbeneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company\n(including any derivative securities with economic equivalents of ownership of\n3\nany of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of\nthe\nCompany, (b) make, or in any way participate in, directly or indirectly, any "'solicitation" of "proxies" (as such terms are\nused in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence\nany person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate\nin\na\n"group"\n(within\nthe\nmeaning\nof\nSection\n13(d)(3)\nof\nthe\nSecurities\nExchange\nAct\nof\n1934,\nas\namended)\nwith\nrespect\nto\nany voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates,\n(d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board\nof directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any\naction that could require the Company to make any public disclosure, with respect to any of the matters set forth in this\nAgreement, other than the required amendment to the Receiving Party's Schedule 13D filing as a result of the execution\nand delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing\nor\n(g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any\nother persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request\nthe Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this\nSection 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill\nPeriod shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive\nagreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or\nmore\nof\nthe\nCompany's\noutstanding\nequity\nsecurities,\n(B)\nthe\nCompany\npublicly\nannounces\nthe\nconclusion\nof\nits\npreviously announced strategic review process without a definitive agreement to sell the Company, (C) the Company\nmakes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization,\ninsolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such\nproceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent\nthereto\nor\nacquiescence\ntherein,\nor\n(2)\nsuch\npetition\napplication\nor\nproceeding\nis\nnot\ndismissed\nwithin\n30\ndays\nand\n(ii)\nthe\nStandstill applicable Period time period solely for with stockholders respect to clause to nominate (b) of this directors Section for 6 election shall terminate at the Company's ten days prior 2012 to the annual expiration stockholders of the\nmeeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses\n(c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by\nclause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).\n7.\nReturn of Confidential Information. Promptly upon the written request of the Company, the\nReceiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports,\nmemoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or\nreflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of\nConfidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be\nbound by their\n4\nconfidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the\nforegoing, (a) the Receiving Party's legal department and/or outside counsel may keep one copy of the Confidential\nInformation (in electronic or paper form) and, with respect to the Receiving Party's Representatives who are accounting\nfirms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable\nlaw\nor\nregulation\nand\n(b)\nthe\nReceiving\nParty\nand\nits\nRepresentatives\nmay\nretain\nConfidential\nInformation\nto\nthe\nextent\nit\nis "backed-up" on its or their (as the case may be) electronic information management and communications systems or\nservers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such\ninformation so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this\nAgreement for a period of eighteen months from the date hereof.\n8.\n2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012\nannual stockholders meeting (with respect to the Company's fiscal year ended January 28, 2012) will be held no earlier\nthan thirty-one days after the first anniversary of the Company's 2011 annual stockholders meeting (with respect\nto\nthe\nCompany's fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release\nannouncing the date of its 2012 annual meeting on the date such press release is publicly issued.\n9.\nSubpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses\nthe Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion\nInformation under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another\ngovernmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company\nof\nthe\nexistence,\nterms\nand\ncircumstances\nsurrounding\nsuch\na\nrequest,\n(b)\nconsult\nwith\nthe\nCompany\non\nthe\nadvisability\nof taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion\nInformation is required, furnish only such portion of the Confidential Information or Discussion Information as the\nReceiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company,\ncooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the\nConfidential Information or Discussion Information or other reliable assurance that confidential treatment will be\naccorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be\ndisclosed.\n10.\nDefinitive Agreement. Unless and until a definitive written agreement between the Receiving\nParty and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor\nthe Company will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of\nthis or any other written or oral expression by either of them or their Representatives except, in the case of this\nAgreement, for the matters specifically agreed to herein.\n5\n11.\nRemedies. Each of the parties hereto acknowledges that in the event of any breach of the terms\nof this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties\nhereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction\n(which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.\n12. Communications. Without the Company's prior written consent, which may be withheld by the\nCompany in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other\nthan\nthrough\nthe\nCompany's\nfinancial\nand\nlegal\nadvisors\nor\nsuch\nother\npersons,\nas\ndesignated\nby\nthe\nCompany\nin\nwriting,\nany (a) communication concerning the Confidential Information, (b) requests for meetings with management of the\nCompany in connection with the possible Transaction or other transaction between the parties or (c) communication\nrelating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee\nof the Company.\n13.\nSecurities Laws. The Receiving Party acknowledges that it is aware and that the Receiving\nParty and its Representatives have been advised that the United States securities laws prohibit any person having non-\npublic\nmaterial\ninformation\nabout\na\ncompany\nfrom\npurchasing\nor\nselling\nsecurities\nof\nthat\ncompany\nor\nfrom\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such\nperson is likely to purchase or sell such securities.\n14.\nEntire Agreement; Amendments. This Agreement represents the entire understanding and\nagreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived\nonly by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying\nor\nwaiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective\nsuccessors and assigns.\n15.\nNo Waiver. No failure or delay by either party in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further\nexercise thereof or the exercise of any right, power or privilege hereunder.\n16.\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws\nof the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and\nunconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York\nfor purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any\nprocess, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall\nbe\neffective\nservice\nof\nprocess\nfor\nany\naction,\nsuit\nor\nproceeding\nbrought\nagainst\nsuch\nparty;\n(c)\nirrevocably\nand\nunconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to\nthis Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally\n6\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit\nor proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State\nof New York has been brought in an inconvenient forum.\n17.\nExpenses. In the event of litigation relating to this Agreement, if a court of competent\njurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-\nbreaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation,\nincluding any appeal therefrom.\n18.\nCaptions. The Captions contained in this Agreement are for convenience only and shall not\naffect the construction or interpretation of any provisions of this Agreement.\n19.\nCounterparts. This Agreement may be executed in multiple counterparts, each of which shall\nbe deemed to be an original, but all of which shall constitute one and the same Agreement.\n20.\nSeverability. In the event any term of this Agreement is found by any court to be void or\notherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were\nabsent upon the date of its execution.\n21.\nNotices. All notices and other communications required or permitted hereunder will be in\nwriting and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic\nfacsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the\naddress specified below:\nThe Talbots, Inc.\nAttention: Chief Operating Officer\nOne Talbots Drive\nHingham, MA 02043\nTelephone: 781-741-7600\nFacsimile: 781-741-4927\nwith copies to:\nThe Talbots, Inc.\nAttention: General Counsel\n211 South Ridge St.\nRye Brook, NY 10573\nTelephone: 914-934-8877\nFacsimile: 914-934-9136\nand\n7\nDewey & LeBoeuf LLP\nAttention: Morton A. Pierce, Esq.\nChang-Do Gong, Esq.\n1301 Avenue of the Americas\nNew York, NY 10019\nTelephone: 212-259-8000\nFacsimile: 212-259-6333\n22.\nNon-Private Equity Affiliates. Notwithstanding anything to the contrary provided elsewhere\nherein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and\nactivities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the\nprivate equity business and (b) the Confidential Information is not made available to Representatives of the Receiving\nParty and its affiliates who are not involved in the private equity business or who are engaged in investments\nthat\nare\nnot\nprivate equity investments and such ordinary course business services and activities are otherwise conducted without any\nreference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the\nReceiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including,\nwithout limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of\nthe United States).\n23.\nTermination. Except as otherwise specified herein, the obligations of the parties set forth in this\nAgreement shall terminate and be of no further force and effect eighteen months from the date hereof.\n[Remainder of Page Intentionally Left Blank]\n8\nIN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first\nwritten above.\nTHE TALBOTS, INC.\nBy/s/ /Richard T. O'Connell, Jr.\nName: Richard T. O'Connell, Jr.\nTitle: Executive Vice President\nSYCAMORE PARTNERS MANAGEMENT,\nL.L.C.\nBy/ /s/ Stefan Kaluzny\nName: Stefan Kaluzny\nTitle: Managing Director	EX-99.(E)(4) 3 d371520dex99e4.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(4)\nSTRICTLY CONFIDENTIAL\nJanuary 27, 2012\nSycamore Partners Management, L.L.C.\n9 West 57 Street, 31 Floor\nNew York, New York 10019\nAttention: Stefan Kaluzny\nManaging Director\nDear Mr. Kaluzny:\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is dated as of January 27, 2012 by and between\nSycamore Partners Management, L.L .C ., a Delaware limited liability company (the “Receiving Party”) and The Talbots,\nInc., a Delaware corporation (together with its subsidiaries, the “Company”).\n1.\nConfidential Information; Representatives. (a) The Receiving Party is considering a possible\nbusiness combination transaction (whether negotiated directly with the Company’s Board of Directors or otherwise) with\nrespect to the Company (the “Transaction”), and, in order to assist the Receiving Party in evaluating the possible\nTransaction, the Company is prepared to make available to the Receiving Party certain information concerning the\nbusiness, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a\ncondition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals,\npartners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates,\npotential sources of capital and financing, and financial advisors (collectively, “Representatives”) of the Receiving Party,\nthe Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this\nAgreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.\n(b)\nThe term “Confidential Information” shall include, without limitation, any and all information\nconcerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects\nthat is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before\nor after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans,\ncompilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda,\ndocuments or other materials (in whatever form maintained or conveyed, whether\nth\nst\ndocumentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information\nconcerning the Company or its business, operations, strategic initiatives, financing, employees, strategies or prospects\nprepared by or on behalf of the Receiving Party, any of the Receiving Party’s Representatives, the Company or any\nCompany Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives\ninvolving or relating to the Confidential Information.\n2.\nExcluded Information.\nThe Confidential Information shall not include information that the\nReceiving Party can demonstrate (a) is or becomes available to the public other than as a result of acts by the Receiving\nParty or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party’s possession prior to\ndisclosure by the Company, provided that such information, to the Receiving Party’s knowledge, was not subject to\nanother confidentiality agreement with the Company or another party, (c) has been independently developed by the\nReceiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving\nParty by a third party, to the Receiving Party’s knowledge, not bound by any duty or obligation of confidentiality on a\nnon-confidential basis.\n3.\nLimitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall,\nand shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible\nTransaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in\nconfidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that\n(i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by\napplicable law, regulation or legal or regulatory process; provided, that the Receiving Party shall have first complied\nwith the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the\nConfidential Information to the extent that the Company gives its prior written consent, and (iii) any information\ncontained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably\nrequire access to such information for the purpose of evaluating a possible Transaction and who agree to keep such\ninformation in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not\nmake any disclosure of any Confidential Information to any potential sources of equity financing without the Company’s\nprior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the\nReceiving Party or by any of its Representatives.\n(b)\nThe Receiving Party agrees that, for a period of eighteen months from the date of this Agreement,\nthe Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly,\n(i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or\n(ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee\nof the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the\npossible Transaction or about whom the Receiving Party receives Confidential\n2\nInformation; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such\nemployees of the Company shall not be considered a solicitation or unauthorized hiring.\n(c)\nIf the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information\nby it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such\nunauthorized disclosure or use.\n4.\nNon-Disclosure of Existence of Negotiations. Without the prior written consent of the Company\nor except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not\ndisclose to any person that any discussions or negotiations are taking place between the parties concerning a possible\nTransaction, including the content, timing and status of such discussions or negotiations (the “Discussion Information”).\n5.\nNo Representations by the Company. The Company will have the exclusive authority to decide\nwhat Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the\nCompany nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates\n(collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential\nInformation available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update\nany Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has\nmade or is making any representation or warranty, express or implied, as to the accuracy or completeness of any\nConfidential Information, and neither the Company nor any of the Company Representatives will have any liability to\nthe Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any\nConfidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and\nwarranties (if any) that are included in any final definitive written agreement that provides for the consummation of a\nnegotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving\nParty and the Company will have legal effect.\n6.\nStandstill Agreement. In consideration of the Confidential Information being furnished to the\nReceiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of\nthis Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the\nConfidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly\nrequested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not\n(and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their\nrespective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any\nproposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner,\nbeneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company\n(including any derivative securities with economic equivalents of ownership of\n3\nany of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the\nCompany, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are\nused in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence\nany person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in\na “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to\nany voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates,\n(d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board\nof directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any\naction that could require the Company to make any public disclosure, with respect to any of the matters set forth in this\nAgreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution\nand delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or\n(g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any\nother persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request\nthe Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this\nSection 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill\nPeriod shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive\nagreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or\nmore of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its\npreviously announced strategic review process without a definitive agreement to sell the Company, (C) the Company\nmakes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization,\ninsolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such\nproceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent\nthereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the\nStandstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the\napplicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders\nmeeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses\n(c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by\nclause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).\n7.\nReturn of Confidential Information.\nPromptly upon the written request of the Company, the\nReceiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports,\nmemoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or\nreflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of\nConfidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be\nbound by their\n4\nconfidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the\nforegoing, (a) the Receiving Party’s legal department and/or outside counsel may keep one copy of the Confidential\nInformation (in electronic or paper form) and, with respect to the Receiving Party’s Representatives who are accounting\nfirms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable\nlaw or regulation and (b) the Receiving Party and its Representatives may retain Confidential Information to the extent it\nis “backed-up” on its or their (as the case may be) electronic information management and communications systems or\nservers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such\ninformation so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this\nAgreement for a period of eighteen months from the date hereof.\n8.\n2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012\nannual stockholders meeting (with respect to the Company’s fiscal year ended January 28, 2012) will be held no earlier\nthan thirty-one days after the first anniversary of the Company’s 2011 annual stockholders meeting (with respect to the\nCompany’s fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release\nannouncing the date of its 2012 annual meeting on the date such press release is publicly issued.\n9.\nSubpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses\nthe Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion\nInformation under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another\ngovernmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company\nof the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability\nof taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion\nInformation is required, furnish only such portion of the Confidential Information or Discussion Information as the\nReceiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company,\ncooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the\nConfidential Information or Discussion Information or other reliable assurance that confidential treatment will be\naccorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be\ndisclosed.\n10.\nDefinitive Agreement. Unless and until a definitive written agreement between the Receiving\nParty and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor\nthe Company will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of\nthis or any other written or oral expression by either of them or their Representatives except, in the case of this\nAgreement, for the matters specifically agreed to herein.\n5\n11.\nRemedies. Each of the parties hereto acknowledges that in the event of any breach of the terms\nof this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties\nhereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction\n(which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.\n12.\nCommunications. Without the Company’s prior written consent, which may be withheld by the\nCompany in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other\nthan through the Company’s financial and legal advisors or such other persons, as designated by the Company in writing,\nany (a) communication concerning the Confidential Information, (b) requests for meetings with management of the\nCompany in connection with the possible Transaction or other transaction between the parties or (c) communication\nrelating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee\nof the Company.\n13.\nSecurities Laws.\nThe Receiving Party acknowledges that it is aware and that the Receiving\nParty and its Representatives have been advised that the United States securities laws prohibit any person having non-\npublic material information about a company from purchasing or selling securities of that company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such\nperson is likely to purchase or sell such securities.\n14.\nEntire Agreement; Amendments.\nThis Agreement represents the entire understanding and\nagreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived\nonly by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or\nwaiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective\nsuccessors and assigns.\n15.\nNo Waiver.\nNo failure or delay by either party in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further\nexercise thereof or the exercise of any right, power or privilege hereunder.\n16.\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws\nof the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and\nunconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York\nfor purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any\nprocess, summons, notice or document by U.S . registered mail to the address set forth at the end of this Agreement shall\nbe effective service of process for any action, suit or proceeding brought against such party; (c) irrevocably and\nunconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to\nthis Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally\n6\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit\nor proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State\nof New York has been brought in an inconvenient forum.\n17.\nExpenses.\nIn the event of litigation relating to this Agreement, if a court of competent\njurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-\nbreaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation,\nincluding any appeal therefrom.\n18.\nCaptions.\nThe Captions contained in this Agreement are for convenience only and shall not\naffect the construction or interpretation of any provisions of this Agreement.\n19.\nCounterparts. This Agreement may be executed in multiple counterparts, each of which shall\nbe deemed to be an original, but all of which shall constitute one and the same Agreement.\n20.\nSeverability. In the event any term of this Agreement is found by any court to be void or\notherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were\nabsent upon the date of its execution.\n21.\nNotices.\nAll notices and other communications required or permitted hereunder will be in\nwriting and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic\nfacsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the\naddress specified below:\nThe Talbots, Inc.\nAttention: Chief Operating Officer\nOne Talbots Drive\nHingham, MA 02043\nTelephone: 781-741-7600\nFacsimile: 781-741-4927\nwith copies to:\nThe Talbots, Inc.\nAttention: General Counsel\n211 South Ridge St.\nRye Brook, NY 10573\nTelephone: 914-934-8877\nFacsimile: 914-934-9136\nand\n7\nDewey & LeBoeuf LLP\nAttention: Morton A. Pierce, Esq.\nChang-Do Gong, Esq.\n1301 Avenue of the Americas\nNew York, NY 10019\nTelephone: 212-259-8000\nFacsimile: 212-259-6333\n22.\nNon-Private Equity Affiliates.\nNotwithstanding anything to the contrary provided elsewhere\nherein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and\nactivities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the\nprivate equity business and (b) the Confidential Information is not made available to Representatives of the Receiving\nParty and its affiliates who are not involved in the private equity business or who are engaged in investments that are not\nprivate equity investments and such ordinary course business services and activities are otherwise conducted without any\nreference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the\nReceiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including,\nwithout limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of\nthe United States).\n23.\nTermination. Except as otherwise specified herein, the obligations of the parties set forth in this\nAgreement shall terminate and be of no further force and effect eighteen months from the date hereof.\n[Remainder of Page Intentionally Left Blank]\n8\nIN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first\nwritten above.\nTHE TALBOTS, INC.\nBy /s/ Richard T. O’Connell, Jr.\nName: Richard T. O’Connell, Jr.\nTitle: Executive Vice President\nSYCAMORE PARTNERS MANAGEMENT,\nL.L.C .\nBy /s/ Stefan Kaluzny\nName: Stefan Kaluzny\nTitle: Managing Director
cb2b5e52b15ab5d6aa80c0c9ee3c18c1.pdf	effective_date jurisdiction party term	EX-10 .8 3 ex10_8.txt NON COMPETE AGREEMENT COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT PARTIES: Thomas E. Clarke\n(EMPLOYEE) NIKE, Inc. , a n Oregon corporation, and its divisions, subsidiaries and affiliates (NIKE) DATE: August 31, 1994 RECITALS: A. This Covenant Not to\nCompete is executed upon the EMPLOYEE's advancement to the position of President and nomination to the Board of Directors of NIKE. B . Over the course of\nEMPLOYEE's employment with NIKE, EMPLOYEE will be or has been exposed to and/or in a position to generate confidential information including but not\nlimited to confidential techniques, methods, styles, designs and design concepts, developments, customer lists, vendor lists, contract factory lists, pricing\ninformation, manufacturing plans, business plans, marketing plans, sales information, methods of operation, knowledge and data relating to processes, products,\nmachines, compounds and compositions, formulae, lasts and molds. It is anticipated that EMPLOYEE will continue to be exposed to confidential information, will\nbe exposed to more confidential information and to confidential information of greater sensitivity as EMPLOYEE advances in the company. This confidential\ninformation is information peculiar to NIKE's business. The nature of NIKE's business is highly competitive and disclosure of any confidential information would\nresult in severe damage to NIKE and be difficult to measure. C . NIKE makes use of the confidential information described in paragraph B above throughout the\nworld. This confidential information of NIKE can be used to NIKE's detriment anywhere in the world. D . The provisions of this Covenant Not to Compete and\nNon-Disclosure Agreement are a condition of EMPLOYEE's employment advancement with NIKE. E . The provisions of this Covenant Not to Compete and\nNon-Disclosure Agreement are reasonable. AGREEMENTS: 1. COVENANT NOT TO COMPETE . During the period of time EMPLOYEE is employed by NIKE,\nunder the terms of any employment contract or otherwise, and for one (1) year thereafter, EMPLOYEE will not directly or indirectly, own, manage, operate, join,\ncontrol, or participate in the ownership, management, operation or control of, or be employed by or connected in any manner with, any business engaged\nanywhere in the world in the athletic footwear business, athletic apparel business, or any other business which directly competes with NIKE or any of its\nsubsidiaries or affiliated corporations. This provision is (a) subject to NIKE's option to waive all or any portion of the one (1) year time period of non-competition\nfollowing termination more specifically provided for in paragraph 2; and (b) subject to NIKE's option to specifically identify, at the time of termination, those\nbusinesses which EMPLOYEE may not be employed by or connected with for the period of non-competition. NIKE agrees to act in good faith in its exercise of the\nabove-noted options. 2 . ADDITIONAL CONSIDERATION . a. As additional consideration for the covenant not to compete described in paragraph 1 above, it is\nagreed that: (i) If EMPLOYEE voluntarily leaves the employ of NIKE, NIKE shall pay EMPLOYEE a monthly payment equal to one- half (1/2) of EMPLOYEE's last\nmonthly salary for the one (1) year period after termination of employment, payable on the first day of each month, or (ii) If EMPLOYEE is involuntarily terminated,\nNIKE shall pay EMPLOYEE a monthly payment equal to EMPLOYEE's last monthly salary for the one (1) year period after termination of employment, payable\non the first day of each month. b. NIKE has the option, for whatever reason, to elect to waive all or a portion of the one (1) year period of non- competition\nfollowing termination, by giving EMPLOYEE written notice of such election not less than 30 (thirty) days prior to the effective date of the waiver. In that event,\nNIKE shall not be obligated to pay EMPLOYEE under this paragraph for any months as to which the covenant not to compete has been waived. 3 . LESSER\nRESTRICTIONS. Should any of the terms of paragraphs 1 and 2 above be found unreasonable or invalid by any court of competent jurisdiction, the parties agree\nto accept as binding, in lieu thereof, the maximum terms enforceable by law. 4. EXTENSION OF TIME . The covenant not to compete described in paragraphs 1,\n2 and 3 above shall be extended by a time period equal to any time consumed in enforcement of the obligations hereunder during which EMPLOYEE engaged in\nactivities violating the covenant not to compete. 5 . NON-DISCLOSURE AGREEMENT. During the period of employment by NIKE and forever thereafter,\nEMPLOYEE will hold in confidence all information of a confidential nature, including but not limited to the information described in Recital "B", (all of which\ninformation of a confidential nature shall hereinafter be referred to as "confidential information") and will not, at any time, directly or indirectly, use any confidential\ninformation for any purpose outside the scope of EMPLOYEE's employment with NIKE or disclose any confidential information to any person or organization\nwithout the prior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE shall not ever copy, transmit, reproduce, summarize, quote,\npublish or make any commercial or other use whatsoever of any confidential information without the prior written consent of NIKE. 6. RETURN OF\nCONFIDENTIAL INFORMATION. Upon termination and upon written request by NIKE at any time, EMPLOYEE shall return to NIKE all documents, records,\nnotebooks and other similar repositories of or containing confidential information, including all copies thereof, then in EMPLOYEE's possession, whether prepared\nby EMPLOYEE or others, and deliver to NIKE any and all other confidential information, in whatever form, that may be in EMPLOYEE's possession or under\nEMPLOYEE's control. 7 . UNAUTHORIZED USE . During the period of employment with NIKE and thereafter, EMPLOYEE shall notify NIKE immediately of the\nunauthorized possession, use or knowledge of any confidential information by any person employed or not employed by NIKE at the time of such possession, use\nor knowledge. EMPLOYEE shall promptly furnish details of such possession, use or knowledge to NIKE, will assist in preventing the reoccurrence of such\npossession, use or knowledge, and shall cooperate with NIKE in any litigation against third parties deemed necessary by NIKE to protect the confidential\ninformation. EMPLOYEE's compliance with this paragraph shall not be construed in any way as a waiver of any of NIKE's rights or remedies against EMPLOYEE\narising out of or related to such unauthorized possession, use or knowledge. 8. INJUNCTIVE RELIEF. The remedy at law for any breach of this Covenant Not to\nCompete and Non-Disclosure Agreement will be inadequate. It is reasonable to require that EMPLOYEE not compete with NIKE in order to protect NIKE from\nunfair use of the confidential information. NIKE shall be entitled to injunctive relief in addition to any other remedy it may have. A breach of this Covenant Not to\nCompete and Non-Disclosure Agreement during the period of EMPLOYEE'S employment with NIKE shall be considered a breach of the terms of that\nemployment and NIKE shall have the right to terminate EMPLOYEE's employment in addition to any other rights or remedies NIKE may have. 9. WAIVER ,\nAMENDMENT, MODIFICATION OR CANCELLATION . No waiver, amendment, modification or cancellation of any term or condition of this Covenant Not to\nCompete and Non-Disclosure Agreement shall be effective unless executed in writing by the party charged therewith. No written waiver shall excuse the\nperformance of any act other than the act or acts specifically referred to therein. 10 . APPLICABLE LAW/JURISDICTION/VENUE. This Covenant Not to Compete\nand Non-Disclosure Agreement, and EMPLOYEE's employment hereunder, shall be construed according to the laws of the state of Oregon and EMPLOYEE\nhereby submits to the jurisdiction of the courts of the state of Oregon and waives application of any foreign law relating to this Agreement and EMPLOYEE's\nemployment by NIKE. Any suit or action of any kind relating to this Agreement or the subject matter hereof shall be brought in a court located in Washington\nCounty, Oregon. EMPLOYEE NIKE , Inc. By: /s/ Thomas E. Clarke By: /s/ Philip H. Knight __________________________ __________________________\nName: Thomas E. Clarke Name: Philip H. Knight	EX-10.8 3 ex10_8.txtNON COMPETE AGREEMENT COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT PARTIES: Thomas E. Clarke\n(EMPLOYEE) NIKE, Inc., an Oregon corporation, and its divisions, subsidiaries and affiliates (NIKE) DATE: August31, 1994 RECITALS: A. This Covenant Not to\nCompete is executed upon the E M P LOYEE 's advancement to the position of President and nomination to the Board of Directors of N IKE. B. Over the course of\nE M PLOYE E's employment with N IKE, E M P LOYE E will be or has been exposed to and/or in a position to generate confidential information including but not\nlimited to confidential techniques, methods, styles, designs and design concepts, developments, customer lists, vendor lists, contractfactory lists, pricing\ninformation, manufacturing plans, business plans, marketing plans, sales information, methods ofoperation, knowledge and data relating to processes, products,\nmachines, compounds and compositions, formulae, lasts and molds. It is anticipated that E M P LOYE E will continue to be exposed to confidential information, will\nbe exposed to more confidential information and to confidential information ofgreater sensitivity as E M P LOYE E advances in the company. This confidential\ninformation is information peculiar to N IKE '5 business. The nature of NIKE '5 business is highly competitive and disclosure of any confidential information would\nresult in severe damage to NIKE and be difficult to measure. C. NIKE makes use of the confidential information described in paragraph B above throughoutthe\nworld. This confidential information of NIKE can be used to NIKE's detriment anywhere in the world. D. The provisions ofthis Covenant Not to Compete and\nNon-Disclosure Agreement are a condition of E M P LOYE E's employment advancementwith NIKE. E. The provisions of this Covenant Not to Compete and\nNon-Disclosure Agreement are reasonable. AG RE E M E NTS: 1. COVE NANT NOT TO COM P ETE. During the period of time E M P LOYE E is employed by NIKE,\nunder the terms of any employment contract or otherwise, and for one (1) year thereafter, E M P LOY E E will not directly or indirectjy, own, manage, operate, join,\ncontrol, or participate in the ownership, management, operation or control of, or be employed by or connected in any manner with, any business engaged\nanywhere in the world in the athletic footwear business, athletic apparel business, or any other business which directly competes with NIKE or any of its\nsubsidiaries or affiliated corporations. This provision is (a) subject to N IKE '5 option to waive all or any portion ofthe one (1) year time period of non-competition\nfollowing termination more specifically provided for in paragraph 2; and (b) subject to NIKE '5 option to specifically identify, atthe time of termination, those\nbusinesses which E M P LOYEE may not be employed by or connected with for the period of non-competition. NIKE agrees to act in good faith in its exercise of the\nabove-noted options. 2. ADDITIONAL CONSIDE RATION. a. As additional consideration for the covenant not to compete described in paragraph 1 above, it is\nagreed that: (i) If E M P LOY E E voluntarily leaves the employ of N IKE, N IKE shall pay E M P LOY E E a monthly payment equal to one- half (1/2) of E M P LOY E E's last\nmonthly salary for the one (1) year period after termination ofemployment, payable on the firstday ofeach month, or (ii) If E M PLOYE E is involuntarily terminated,\nNIKE shall pay E M P LOY E E a monthly payment equal to E M P LOY E E '5 last monthly salary for the one (1) year period after termination of employment, payable\non the firstday ofeach month. b. NIKE has the option, for whatever reason, to elect to waive all or a portion of the one (1) year period of non- competition\nfollowing termination, by giving E M P LOYE E written notice ofsuch election not less than 30 (thirty) days prior to the effective date of the waiver. In thatevent,\nNIKE shall not be obligated to pay E M P LOYE E under this paragraph for any months as to which the covenant notto compete has been waived. 3. LESSE R\nRESTRICTIONS. Should any ofthe terms ofparagraphs 1 and 2 above be found unreasonable or invalid by any court ofcompetentjurisdiction, the parties agree\nto accept as binding, in lieu thereof, the maximum terms enforceable by law. 4. EXTENSION OF TIM E. The covenant not to compete described in paragraphs 1,\n2 and 3 above shall be extended by a time period equal to any time consumed in enforcementof the obligations hereunder during which E M P LOYE E engaged in\nactivities violating the covenant not to compete. 5. NON-DISC LOSU RE AGRE E M E NT. During the period ofemployment by NIKE and forever thereafter,\nE M PLOYE E will hold in confidence all information of a confidential nature, including but not limited to the information described in Recital "B", (all ofwhich\ninformation of a confidential nature shall hereinafter be referred to as "confidential information") and will not, at any time, directly or indirectly, use any confidential\ninformation for any purpose outside the scope of E M P LOYE E's employmentwith NIKE or disclose any confidential information to any person or organization\nwithout the prior written consent of N IKE. Specifically, but not by way of limitation, E M P LOYE E shall not ever copy, transmit, reproduce, summarize, quote,\npublish or make any commercial or other use whatsoever of any confidential information withoutthe prior written consentof NIKE. 6. RETU RN OF\nCONFIDENTIAL INFORMATION. Upon termination and upon written requestby NIKE atany time, EMPLOYEE shall return to NIKE all documents, records,\nnotebooks and other similar repositories ofor containing confidential information, including all copies thereof, then in EM P LOYE E's possession, whether prepared\nby E M P LOYE E or others, and deliver to N IKE any and all other confidential information, in whatever form, that may be in E M P LOYEE 's possession or under\nE M PLOYE E's control. 7. UNAUTHORIZE D USE. During the period of employmentwith NIKE and thereafter, E M P LOYEE shall notify N IKE immediately ofthe\nunauthorized possession, use or knowledge of any confidential information by any person employed or notemployed by NIKE atthe time of such possession, use\nor knowledge. E M P LOYE E shall promptly furnish details ofsuch possession, use or knowledge to N IKE, will assist in preventing the reoccurrence ofsuch\npossession, use or knowledge, and shall cooperate with N IKE in any litigation against third parties deemed necessary by N IKE to protect the confidential\ninformation. E M PLOYE E's compliance with this paragraph shall not be construed in any way as a waiver of any of N IKE '5 rights or remedies against E M PLOYE E\narising out ofor related to such unauthorized possession, use or knowledge. 8. IN) U NCTIVE RE LIEF. The remedy at law for any breach ofthis Covenant Notto\nCompete and Non-Disclosure Agreement will be inadequate. It is reasonable to require that E M P LOYE E notcompete with N IKE in order to protect N IKE from\nunfair use of the confidential information. N IKE shall be entitled to injunctive relief in addition to any other remedy it may have. A breach ofthis Covenant Notto\nCompete and Non-Disclosure Agreement during the period of E M PLOYE E 'S employmentwith N IKE shall be considered a breach ofthe terms of that\nemployment and N IKE shall have the rightto terminate E M PLOYE E's employment in addition to any other rights or remedies N IKE may have. 9. WAIVER,\nAM EN DM ENT, MODIFICATION OR CANC E LLATION. No waiver, amendment, modification or cancellation of any term or condition of this Covenant Not to\nCompete and Non-Disclosure Agreement shall be effective unless executed in writing by the party charged therewith. No written waiver shall excuse the\nperformance of any actother than the actor acts specifically referred to therein. 10. AP P LICAB LE LAW/J URISDICTIONNE NUE. This Covenant Notto Compete\nand Non-Disclosure Agreement, and E M P LOYE E's employment hereunder, shall be construed according to the laws ofthe state ofOregon and E M P LOYE E\nhereby submits to the jurisdiction ofthe courts ofthe state ofOregon and waives application of any foreign law relating to this Agreement and E M P LOYEE '5\nemployment by N IKE. Any suitor action of any kind relating to this Agreement or the subject matter hereofshall be brought in a court located in Washington\nCounty, Oregon. EMPLOYEE NIKE, Inc. By: /s/Thomas E. Clarke By: /s/ Philip H. Knight\nName: Thomas E. Clarke Name: Philip H. Knight	EX-10.8 NON COMPETE AGREEMENT COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT PARTIES: Thomas E. Clarke\n(EMPLOYEE) NIKE, Inc., an Oregon corporation, and its divisions, subsidiaries and affiliates (NIKE) DATE: August 31, 1994 RECITALS: A. This Covenant Not to\nCompete is executed upon the EMPLOYEE'S advancement to the position of President and nomination to the Board of Directors of NIKE. B. Over the\ncourse\nof\nEMPLOYEE'S employment with NIKE, EMPLOYEE will be or has been exposed to and/or in a position to generate confidential information including but not\nlimited to confidential techniques, methods, styles, designs and design concepts, developments, customer lists, vendor lists, contract factory lists, pricing\ninformation, manufacturing plans, business plans, marketing plans, sales information, methods of operation, knowledge and data relating to processes, products,\nmachines, compounds and compositions, formulae, lasts and molds. It is anticipated that EMPLOYEE will continue to be exposed to confidential information,\nwill\nbe exposed to more confidential information and to confidential information of greater sensitivity as EMPLOYEE advances in the company. This confidential\ninformation is information peculiar to NIKE's business. The nature of NIKE's business is highly competitive and disclosure of any confidential information would\nresult in severe damage to NIKE and be difficult to measure. C. NIKE makes use of the confidential information described in paragraph B above throughout the\nworld. This confidential information of NIKE can be used to NIKE'S detriment anywhere in the world. D. The provisions of this Covenant Not to Compete and\nNon-Disclosure Agreement are a condition of EMPLOYEE's employment advancement with NIKE. E. The provisions of this Covenant Not to Compete and\nNon-Disclosure Agreement are reasonable. AGREEMENTS: 1. COVENANT NOT TO COMPETE. During the period of time EMPLOYEE is employed by NIKE,\nunder the terms of any employment contract or otherwise, and for one (1) year thereafter, EMPLOYEE will not directly or indirectly, own, manage, operate, join,\ncontrol, or participate in the ownership, management, operation or control of, or be employed by or connected in any manner with, any business engaged\nanywhere in the world in the athletic footwear business, athletic apparel business, or any other business which directly competes with NIKE or any of its\nsubsidiaries or affiliated corporations. This provision is (a) subject to NIKE'S option to waive all or any portion of the one (1) year time period of non-competition\nfollowing termination more specifically provided for in paragraph 2; and (b) subject to NIKE'S option to specifically identify, at the time of termination, those\nbusinesses which EMPLOYEE may not be employed by or connected with for the period of non-competition. NIKE agrees to act in good faith in its exercise of the\nabove-noted options. 2. ADDITIONAL CONSIDERATION. a. As additional consideration for the covenant not to compete described in paragraph 1 above, it is\nagreed that: (i) If EMPLOYEE voluntarily leaves the employ of NIKE, NIKE shall pay EMPLOYEE a monthly payment equal to one- half (1/2) of EMPLOYEE'S last\nmonthly salary for the one (1) year period after termination of employment, payable on the first day of each month, or (ii) If EMPLOYEE is involuntarily terminated,\nNIKE shall pay EMPLOYEE a monthly payment equal to EMPLOYEE'S last monthly salary for the one (1) year period after termination of employment, payable\non the first day of each month. b. NIKE has the option, for whatever reason, to elect to waive all or a portion of the one (1) year period of non- competition\nfollowing termination, by giving EMPLOYEE written notice of such election not less than 30 (thirty) days prior to the effective date of the waiver. In that event,\nNIKE shall not be obligated to pay EMPLOYEE under this paragraph for any months as to which the covenant not to compete has been waived. 3. LESSER\nRESTRICTIONS. Should any of the terms of paragraphs 1 and 2 above be found unreasonable or invalid by any court of competent jurisdiction, the parties agree\nto accept as binding, in lieu thereof, the maximum terms enforceable by law. 4. EXTENSION OF TIME. The covenant not to compete described in paragraphs 1,\n2 and 3 above shall be extended by a time period equal to any time consumed in enforcement of the obligations hereunder during which EMPLOYEE engaged in\nactivities violating the covenant not to compete. 5. NON-DISCLOSURE AGREEMENT. During the period of employment by NIKE and forever thereafter,\nEMPLOYEE will hold in confidence all information of a confidential nature, including but not limited to the information described in Recital "B", (al of which\ninformation of a confidential nature shall hereinafter be referred to as "confidential information") and will not, at any time, directly or indirectly, use any confidential\ninformation for any purpose outside the scope of EMPLOYEE'S employment with NIKE or disclose any confidential information to any person or organization\nwithout the prior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE shall not ever copy, transmit, reproduce, summarize, quote,\npublish or make any commercial or other use whatsoever of any confidential information without the prior written consent of NIKE. 6. RETURN OF\nCONFIDENTIAL INFORMATION. Upon termination and upon written request by NIKE at any time, EMPLOYEE shall return to NIKE all documents, records,\nnotebooks and other similar repositories of or containing confidential information, including all copies thereof, then in EMPLOYEE's possession, whether prepared\nby EMPLOYEE or others, and deliver to NIKE any and all other confidential information, in whatever form, that may be in EMPLOYEE'S possession or under\nEMPLOYEE'S control. 7. UNAUTHORIZED USE. During the period of employment with NIKE and thereafter, EMPLOYEE shall notify NIKE immediately of the\nunauthorized possession, use or knowledge of any confidential information by any person employed or not employed by NIKE at the time of such possession, use\nor knowledge. EMPLOYEE shall promptly furnish details of such possession, use or knowledge to NIKE, will assist in preventing the reoccurrence of such\npossession, use or knowledge, and shall cooperate with NIKE in any litigation against third parties deemed necessary by NIKE to protect the confidential\ninformation. EMPLOYEE's compliance with this paragraph shall not be construed in any way as a waiver of any of NIKE's rights or remedies against EMPLOYEE\narising out of or related to such unauthorized possession, use or knowledge. 8. INJ UNCTIVE RELIEF. The remedy at law for any breach of this Covenant Not\nto\nCompete and Non-Disclosure Agreement will be inadequate. It is reasonable to require that EMPLOYEE not compete with NIKE in order to protect NIKE from\nunfair use of the confidential information. NIKE shall be entitled to injunctive relief in addition to any other remedy it may have. A breach of this Covenant Not to\nCompete and Non-Disclosure Agreement during the period of EMPLOYEE'S employment with NIKE shall be considered a breach of the terms of that\nemployment and NIKE shall have the right to terminate EMPLOYEE'S employment in addition to any other rights or remedies NIKE may have. 9. WAIVER,\nAMENDMENT, MODIFICATION OR CANCELLATION. No waiver, amendment, modification or cancellation of any term or condition of this Covenant Not to\nCompete and Non-Disclosure Agreement shall be effective unless executed in writing by the party charged therewith. No written waiver shall excuse the\nperformance of any act other than the act or acts specifically referred to therein. 10. APPLICABLE LAW/J URISDICTIONNENUE. This Covenant Not to Compete\nand Non-Disclosure Agreement, and EMPLOYEE's employment hereunder, shall be construed according to the laws of the state of Oregon and EMPLOYEE\nhereby submits to the jurisdiction of the courts of the state of Oregon and waives application of any foreign law relating to this Agreement and EMPLOYEE'S\nemployment by NIKE. Any suit or action of any kind relating to this Agreement or the subject matter hereof shall be brought in a court located in Washington\nCounty, Oregon. EMPLOYEE NIKE, Inc. By: /s/ Thomas E. Clarke By: /s/ Philip H. Knight\nName: Thomas E. Clarke Name: hilip H. Knight	EX-10 .8 3 ex10_8.txt NON COMPETE AGREEMENT COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT PARTIES: Thomas E. Clarke\n(EMPLOYEE) NIKE, Inc. , a n Oregon corporation, and its divisions, subsidiaries and affiliates (NIKE) DATE: August 31, 1994 RECITALS: A. This Covenant Not to\nCompete is executed upon the EMPLOYEE's advancement to the position of President and nomination to the Board of Directors of NIKE. B . Over the course of\nEMPLOYEE's employment with NIKE, EMPLOYEE will be or has been exposed to and/or in a position to generate confidential information including but not\nlimited to confidential techniques, methods, styles, designs and design concepts, developments, customer lists, vendor lists, contract factory lists, pricing\ninformation, manufacturing plans, business plans, marketing plans, sales information, methods of operation, knowledge and data relating to processes, products,\nmachines, compounds and compositions, formulae, lasts and molds. It is anticipated that EMPLOYEE will continue to be exposed to confidential information, will\nbe exposed to more confidential information and to confidential information of greater sensitivity as EMPLOYEE advances in the company. This confidential\ninformation is information peculiar to NIKE's business. The nature of NIKE's business is highly competitive and disclosure of any confidential information would\nresult in severe damage to NIKE and be difficult to measure. C . NIKE makes use of the confidential information described in paragraph B above throughout the\nworld. This confidential information of NIKE can be used to NIKE's detriment anywhere in the world. D . The provisions of this Covenant Not to Compete and\nNon-Disclosure Agreement are a condition of EMPLOYEE's employment advancement with NIKE. E . The provisions of this Covenant Not to Compete and\nNon-Disclosure Agreement are reasonable. AGREEMENTS: 1. COVENANT NOT TO COMPETE . During the period of time EMPLOYEE is employed by NIKE,\nunder the terms of any employment contract or otherwise, and for one (1) year thereafter, EMPLOYEE will not directly or indirectly, own, manage, operate, join,\ncontrol, or participate in the ownership, management, operation or control of, or be employed by or connected in any manner with, any business engaged\nanywhere in the world in the athletic footwear business, athletic apparel business, or any other business which directly competes with NIKE or any of its\nsubsidiaries or affiliated corporations. This provision is (a) subject to NIKE's option to waive all or any portion of the one (1) year time period of non-competition\nfollowing termination more specifically provided for in paragraph 2; and (b) subject to NIKE's option to specifically identify, at the time of termination, those\nbusinesses which EMPLOYEE may not be employed by or connected with for the period of non-competition. NIKE agrees to act in good faith in its exercise of the\nabove-noted options. 2 . ADDITIONAL CONSIDERATION . a. As additional consideration for the covenant not to compete described in paragraph 1 above, it is\nagreed that: (i) If EMPLOYEE voluntarily leaves the employ of NIKE, NIKE shall pay EMPLOYEE a monthly payment equal to one- half (1/2) of EMPLOYEE's last\nmonthly salary for the one (1) year period after termination of employment, payable on the first day of each month, or (ii) If EMPLOYEE is involuntarily terminated,\nNIKE shall pay EMPLOYEE a monthly payment equal to EMPLOYEE's last monthly salary for the one (1) year period after termination of employment, payable\non the first day of each month. b. NIKE has the option, for whatever reason, to elect to waive all or a portion of the one (1) year period of non- competition\nfollowing termination, by giving EMPLOYEE written notice of such election not less than 30 (thirty) days prior to the effective date of the waiver. In that event,\nNIKE shall not be obligated to pay EMPLOYEE under this paragraph for any months as to which the covenant not to compete has been waived. 3 . LESSER\nRESTRICTIONS. Should any of the terms of paragraphs 1 and 2 above be found unreasonable or invalid by any court of competent jurisdiction, the parties agree\nto accept as binding, in lieu thereof, the maximum terms enforceable by law. 4. EXTENSION OF TIME . The covenant not to compete described in paragraphs 1,\n2 and 3 above shall be extended by a time period equal to any time consumed in enforcement of the obligations hereunder during which EMPLOYEE engaged in\nactivities violating the covenant not to compete. 5 . NON-DISCLOSURE AGREEMENT. During the period of employment by NIKE and forever thereafter,\nEMPLOYEE will hold in confidence all information of a confidential nature, including but not limited to the information described in Recital "B", (all of which\ninformation of a confidential nature shall hereinafter be referred to as "confidential information") and will not, at any time, directly or indirectly, use any confidential\ninformation for any purpose outside the scope of EMPLOYEE's employment with NIKE or disclose any confidential information to any person or organization\nwithout the prior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE shall not ever copy, transmit, reproduce, summarize, quote,\npublish or make any commercial or other use whatsoever of any confidential information without the prior written consent of NIKE. 6. RETURN OF\nCONFIDENTIAL INFORMATION. Upon termination and upon written request by NIKE at any time, EMPLOYEE shall return to NIKE all documents, records,\nnotebooks and other similar repositories of or containing confidential information, including all copies thereof, then in EMPLOYEE's possession, whether prepared\nby EMPLOYEE or others, and deliver to NIKE any and all other confidential information, in whatever form, that may be in EMPLOYEE's possession or under\nEMPLOYEE's control. 7 . UNAUTHORIZED USE . During the period of employment with NIKE and thereafter, EMPLOYEE shall notify NIKE immediately of the\nunauthorized possession, use or knowledge of any confidential information by any person employed or not employed by NIKE at the time of such possession, use\nor knowledge. EMPLOYEE shall promptly furnish details of such possession, use or knowledge to NIKE, will assist in preventing the reoccurrence of such\npossession, use or knowledge, and shall cooperate with NIKE in any litigation against third parties deemed necessary by NIKE to protect the confidential\ninformation. EMPLOYEE's compliance with this paragraph shall not be construed in any way as a waiver of any of NIKE's rights or remedies against EMPLOYEE\narising out of or related to such unauthorized possession, use or knowledge. 8. INJUNCTIVE RELIEF. The remedy at law for any breach of this Covenant Not to\nCompete and Non-Disclosure Agreement will be inadequate. It is reasonable to require that EMPLOYEE not compete with NIKE in order to protect NIKE from\nunfair use of the confidential information. NIKE shall be entitled to injunctive relief in addition to any other remedy it may have. A breach of this Covenant Not to\nCompete and Non-Disclosure Agreement during the period of EMPLOYEE'S employment with NIKE shall be considered a breach of the terms of that\nemployment and NIKE shall have the right to terminate EMPLOYEE's employment in addition to any other rights or remedies NIKE may have. 9. WAIVER ,\nAMENDMENT, MODIFICATION OR CANCELLATION . No waiver, amendment, modification or cancellation of any term or condition of this Covenant Not to\nCompete and Non-Disclosure Agreement shall be effective unless executed in writing by the party charged therewith. No written waiver shall excuse the\nperformance of any act other than the act or acts specifically referred to therein. 10 . APPLICABLE LAW/JURISDICTION/VENUE. This Covenant Not to Compete\nand Non-Disclosure Agreement, and EMPLOYEE's employment hereunder, shall be construed according to the laws of the state of Oregon and EMPLOYEE\nhereby submits to the jurisdiction of the courts of the state of Oregon and waives application of any foreign law relating to this Agreement and EMPLOYEE's\nemployment by NIKE. Any suit or action of any kind relating to this Agreement or the subject matter hereof shall be brought in a court located in Washington\nCounty, Oregon. EMPLOYEE NIKE , Inc. By: /s/ Thomas E. Clarke By: /s/ Philip H. Knight __________________________ __________________________\nName: Thomas E. Clarke Name: Philip H. Knight
cbecb022566bb11fff3a574ae1e15ddc.pdf	jurisdiction party	Exhibit A\nConfidentiality and Non-Competition Agreement\nWe are pleased that you have decided to continue to serve as an employee of Diamond Resorts\nInternational Marketing, Inc. (the “Company”). We are concurrently executing an Employment Agreement with you.\nAs a condition to our offering you the Employment Agreement and to ensure that you understand and agree with\nsome of our more important policies, we have described them in this Agreement. Please read this Agreement\ncarefully and then sign the last page if you understand and agree to it. This is a binding contract.\n1. Confidentiality. You acknowledge that, in the course of performing your responsibilities under this\nAgreement, you will form relationships and become acquainted with Confidential Information. As an\nemployee, you will have access to much of our confidential information. By way of example, our confidential\ninformation includes information about the Company’s business, independent contractor relationships,\ncontracts, client relationships, potential customers, existing customer names, phone numbers and\naddresses, Company manuals, sales techniques, registration cards, books, records, letters, forms,\ncustomer relationships, marketing information, business plans, financial data, bank information, forecasts,\nstrategies, and information about (or acquired from) our business partners. We agree that the existence and\nnegotiation of your employment agreement, and any non-public information exchanged in connection\ntherewith, is confidential. Please note that this is not an exhaustive list of our confidential information, and\nyou agree to consult with us in advance if there is any question regarding the confidential nature of any\ninformation. You agree to keep this information strictly confidential. You may not use or disclose any of it for\nany purpose other than as necessary for Company business. Furthermore, you agree that if you leave our\nemploy you will continue to treat that information as confidential, and will return all documents and\ncomputer discs and files containing that information to us.\n2. Inventions. We invest significant time and financial resources in the development of our business. In\nrecognition of this investment, you hereby irrevocably assign to us all interest in any inventions, discoveries,\ndevelopments, improvements and innovations, whether or not patentable (“Inventions”) which you help\ndevelop during your employment with us. If requested by us, you will execute specific assignments and\nother documents helpful or necessary to evidence our ownership of such inventions and assist us in\nobtaining or defending patents for such inventions. You will promptly disclose in writing to us any inventions\nyou help develop during your employment with us regardless of whether you believe such inventions will be\nthe property of the Company. We agree to treat such disclosures in confidence.\n3. Covenant Not to Compete. You agree that our Confidential Information is valuable to us, and the\nrestrictions on your future employment contained in this Agreement are reasonably necessary in order for\nus to remain competitive in our business. You agree that during the course of your employment with the\nCompany you have learned and will learn trade secrets and valuable confidential information of the\nCompany, have developed and will develop substantial business relationships with specific customers and\nprospective customers or clients of the Company and entities doing business with the Company, including\nhomeowners associations, and have developed and will develop goodwill on behalf of the Company in\nevery geographic area in which the Company owns or manages properties or has plans to do so. You have\nparticipated and will participate in specialized training on behalf of the Company. In consideration of our\nexecution of the Employment Agreement and the compensation payable to you under the Employment\nAgreement, and in recognition of our heightened need for protection from abuse of relationships formed or\nConfidential Information garnered, you covenant and agree that during the term of your employment\nagreement and for one (1) year after termination (excluding your termination without Cause as defined\ntherein), you will not directly or indirectly engage in the\nA-1\n___ ___ _\n___ ___ _\nExecutive\nCompany\nbusiness of the Company, which shall include without limitation, timesharing, club or affiliates that (i)\noperate a timeshare, interval, points membership or vacation membership resort or (ii) have a marketing or\nsales office that engages in the business of the Company.\nYou further agree that for a period of two (2) years following your separation from the Company, you shall\nnot directly or indirectly, whether for pay or otherwise, alone or with or on behalf of others, (a) solicit or contact for\nthe purpose of providing, or provide (regardless of whether you engaged in solicitations) business services of the\nsame type provided by the Company to any homeowners association with which you have conducted business or\nwith which you have sought to do business on behalf of the Company; (b) divert or attempt to divert any\nhomeowners association with which you have conducted business or attempted to conduct business on behalf of\nthe Company to enter into business relationships with any individuals or entities of the same or similar type as the\nrelationships with which they have conducted with the Company during your employment with the Company; (c)\nassist, encourage, or induce any homeowners association with which you have dealt on behalf of the Company\nduring your employment with the Company to terminate or reduce its business relationship with the Company; (d)\nsolicit or contact any members, prospective purchasers, guests and customers of the Company to reduce or\nterminate their relationship with the Company or to enter into relationships with individuals or entities performing or\noffering services in competition with the Company; (e) provide services to any prospective purchasers, guests and\ncustomers of the Company in competition with the Company; (f) solicit, recruit, or hire (whether as a consultant,\nemployee, or independent contractor) any individual who is or who was in the six (6) months preceding the\nsolicitation, recruitment, or hiring, a team member/employee of the Company; (g) assist other individuals or entities\nto do the acts set forth in this Section, In particular, you shall not perform business services for Starwood Property\nManagement or Vacation Resorts International during the Restricted Period. It shall not be a defense to a claim of\nbreach of this provision that any homeowners association, owner, prospective purchaser, or customer first\ncontacted you to seek your services. These restrictions shall apply in any jurisdiction and location in which the\nCompany currently conducts or has active plans to conduct business,\nFurther, following your separation, you agree that you shall not use or disclose any confidential information\nor trade secrets of the Company without written authorization of the Company or as required by law and shall not\nmake false or defamatory statements regarding the Company, its business, and its officers, directors and\nemployees. To the extent that you have any questions as to whether any of these restrictions apply to any specific\nemployment or business opportunity you wish to consider you shall contact the Chief Executive Officer in writing\nsetting forth the activities in which you wish to engage and seeking a determination of whether the Company views\nsuch proposed activities as being prohibited by this Agreement. You agree that these prohibitions do not prohibit\nyou from earning a living subject to the obligations contained in this Agreement.\n4. Agreements with Former Employers. You represent and warrant to the Company that:\n(a) The performance by you of the obligations under this Agreement will not breach any agreement\nto keep in confidence proprietary information acquired by you in confidence or in trust prior to\nyour employment by the Company, and during your employment by the Company you will not\nbreach any obligation of confidentiality that you may have to any former employer.\n(b) You have not brought and will not bring to the Company or use in the performance of your\nduties at the Company any materials or documents of a former employer that are not generally\navailable to the public or otherwise subject to a duty of confidentiality, unless you have\nobtained express written authorization from the former employer for their possession and use\nand delivered a copy of such authorization to the Company.\nA-2\n___ ___ _\n___ ___ _\nExecutive\nCompany\n5. No Recruiting of Employees, Customers or Business Partners. To meet the demands of our business,\nwe invest a lot of time and resources in hiring and training quality employees, and in finding and building\nrelationships with our customers and business partners. In recognition of our investment, you agree that\nwhile you are employed by us and for one (1) year after that:\n(a)You will not directly or indirectly induce or attempt to induce any person then engaged or employed\npart-time or full-time by the Company, whether as an officer, employee, consultant, adviser or\nindependent contractor, to leave the employ of the Company or to cease providing or otherwise\nalter the services then provided to the Company.\n(b)You will not directly or indirectly induce or attempt to induce any customer or business partner of\nthe Company to cease doing business with the Company.\n6. Duty to Inform Subsequent Employer. You agree that, if you are no longer employed by us, you will\ninform any subsequent employer (or client if you engage in consulting work) that you are a party to this\nAgreement and if requested will provide a copy of this Agreement to such subsequent employer or client.\n7. Records. Because of the need for confidentiality, we must maintain tight controls over our business\nrecords. Business records are those documents whose primary purpose is to record the actions of the\nCompany, including marketing and financial matters. Therefore, you agree not to remove any business\nrecords (whether in written or electronic form) from our premises without the prior written consent of our\nChief Executive Officer. Notwithstanding the foregoing, you may remove business records from Company\npremises to the extent necessary to carry out your responsibilities under the Employment Agreement. Such\ndocuments shall be returned to the premises immediately once they are no longer necessary. All\ndocuments must immediately be returned to the Company upon termination of employment.\n8. Company Property. You agree that if you leave our employ you will promptly return any Company\nproperty in your possession wherever it may be located. You also agree to cooperate with and follow the\ninstructions of the Company and to permit access to professionals retained by the Company for assistance\nin removing any digital copies of Company documents from the hard drives of computers or electronic data\ndigital storage devices that you use, including flash drives, external hard drives, Personal Data Assistants,\ncell phones, tablet computers, and other devices. If you do not promptly return such property, we may\nexercise all of our legal remedies to recover such property, and you agree to reimburse us for all expenses\n(including attorneys’ fees and court costs) incurred in connection with the attempt to recover such property.\n9. Communication with the Public. Under all circumstances, communications with anyone from the media\nshould be strictly limited (other than to say that a call will be referred to the appropriate person within the\nCompany). Only persons authorized by the Chief Executive Officer of the Company shall be entitled to\nspeak with the press on any subject.\n10. Injunctive Relief of Breaches. I understand that any failure by me to perform my duties, obligations\nand agreements in this document could result in irreparable injury to the Company. We both agree that\ndamages would be an inadequate remedy for the Company in the event of breach or threatened breach of\nthis Agreement. Accordingly, you agree in advance that in addition to the remedies otherwise available to\nthe Company at law, the Company is entitled to receive restraining orders and/or injunctive relief without\nbond from courts of competent jurisdiction to enforce any of those duties, obligations or agreements.\nA-3\n___ ___ _\n___ ___ _\nExecutive\nCompany\n11. Arbitration. All disputes in connection with or arising out of this Agreement shall be subject to the\narbitration provisions attached hereto as Exhibit B, which exhibit is incorporated herein by this reference.\nThe only exception is that either you or we may seek injunctive relieve from any court having jurisdiction.\nBoth parties consent to exclusive jurisdiction in Clark County, Nevada.\n12. Severability. If any portion of this Agreement is invalid or unenforceable, or if this Agreement is invalid\nor unenforceable in any particular circumstance, that fact shall not affect the validity or enforceability of any\nother provision of this Agreement or its application in any other circumstance.\n13.\nGoverning Law. Our respective rights and liabilities under this Agreement shall be governed by the\nlaws of the State of Nevada, regardless of the choice of law provisions of Nevada or any other jurisdiction.\nDiamond\nResorts International Marketing, Inc.\nDate:\n___ ___ ___ ___ ____ ___ ___ ___ _\n__ ___ ___ ____ ___ ___ ___ ___ ___\n_\nBy:\nIts:\nI HAVE CAREFULLY READ AND CONSIDERED THE TERMS OF THIS AGREEMENT. I HAVE ASKED ANY\nQUESTIONS ABOUT THEM WHICH I MIGHT HAVE HAD AND UNDERSTAND THEIR IMPLICATIONS. I ALSO\nUNDERSTAND THAT ANY CHANGES IN THIS AGREEMENT MUST BE IN WRITING AND SIGNED BY THE\nCOMPANY’S CHIEF EXECUTIVE OFFICER.\nDate:\n___ ___ ___ ___ ____ ___ ___ ___ _\n__ ___ ___ ____ ___ ___ ___ ___ ___\n_\nMichael Flaskey\nDO NOT SIGN THIS AGREEMENT UNLESS YOU UNDERSTAND AND AGREE\nTO ALL OF ITS TERMS. THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE.	ExhibitA\nConfidentiality and Non-Competition Agreement\nWe are pleased that you have decided to continue to serve as an employee of Diamond Resorts\nInternational Marketing, Inc. (the “Company”). We are concurrently executing an Employment Agreement with you.\nAs a condition to our offering you the Employment Agreement and to ensure that you understand and agree with\nsome of our more important policies, we have described them in this Agreement. Please read this Agreement\ncarefully and then sign the last page if you understand and agree to it. This is a binding contract.\n1. Confidentiality. You acknowledge that, in the course of performing your responsibilities under this\nAgreement, you will form relationships and become acquainted with Confidential Information. As an\nemployee, you will have access to much ofour confidential information. By way ofexample, our confidential\ninformation includes information about the Company's business, independent contractor relationships,\ncontracts, client relationships, potential customers, existing customer names, phone numbers and\naddresses, Company manuals, sales techniques, registration cards, books, records, letters, forms,\ncustomer relationships, marketing information, business plans, financial data, bank information, forecasts,\nstrategies, and information about (or acquired from) our business partners. We agree thatthe existence and\nnegotiation of your employment agreement, and any non-public information exchanged in connection\ntherewith, is confidential. Please note that this is not an exhaustive list of our confidential information, and\nyou agree to consult with us in advance if there is any question regarding the confidential nature of any\ninformation. You agree to keep this information strictly confidential. You may not use or disclose any of it for\nany purpose other than as necessary for Company business. Furthermore, you agree that if you leave our\nemploy you will continue to treat that information as confidential, and will return all documents and\ncomputer discs and files containing that information to us.\n2. Inventions. We invest significant time and financial resources in the development of our business. In\nrecognition of this investment, you hereby irrevocably assign to us all interest in any inventions, discoveries,\ndevelopments, improvements and innovations, whether or not patentable (“Inventions”) which you help\ndevelop during your employment with us. If requested by us, you will execute specific assignments and\nother documents helpful or necessary to evidence our ownership of such inventions and assist us in\nobtaining or defending patents for such inventions. You will promptly disclose in writing to us any inventions\nyou help develop during your employment with us regardless of whether you believe such inventions will be\nthe property ofthe Company. We agree to treat such disclosures in confidence.\n3. Covenant Not to Compete. You agree that our Confidential Information is valuable to us, and the\nrestrictions on your future employment contained in this Agreement are reasonably necessary in order for\nus to remain competitive in our business. You agree that during the course of your employment with the\nCompany you have learned and will learn trade secrets and valuable confidential information of the\nCompany, have developed and will develop substantial business relationships with specific customers and\nprospective customers or clients of the Company and entities doing business with the Company, including\nhomeowners associations, and have developed and will develop goodwill on behalf of the Company in\nevery geographic area in which the Company owns or manages properties or has plans to do so. You have\nparticipated and will participate in specialized training on behalf of the Company. In consideration of our\nexecution of the Employment Agreement and the compensation payable to you under the Employment\nAgreement, and in recognition of our heightened need for protection from abuse of relationships formed or\nConfidential Information garnered, you covenant and agree that during the term of your employment\nagreement and for one (1) year after termination (excluding your termination without Cause as defined\ntherein), you will not directly or indirectly engage in the\nA-l\nExecutive Company\nbusiness of the Company, which shall include without limitation, timesharing, club or affiliates that (i)\noperate a timeshare, interval, points membership or vacation membership resort or (ii) have a marketing or\nsales office thatengages in the business of the Company.\nYou further agree that for a period of two (2) years following your separation from the Company, you shall\nnot directly or indirectly, whether for pay or otherwise, alone or with or on behalf of others, (a) solicit or contact for\nthe purpose of providing, or provide (regardless of whether you engaged in solicitations) business services of the\nsame type provided by the Company to any homeowners association with which you have conducted business or\nwith which you have sought to do business on behalf of the Company; (b) divert or attempt to divert any\nhomeowners association with which you have conducted business or attempted to conduct business on behalf of\nthe Company to enter into business relationships with any individuals or entities of the same or similar type as the\nrelationships with which they have conducted with the Company during your employment with the Company; (c)\nassist, encourage, or induce any homeowners association with which you have dealt on behalf of the Company\nduring your employment with the Company to terminate or reduce its business relationship with the Company; (d)\nsolicit or contact any members, prospective purchasers, guests and customers of the Company to reduce or\nterminate their relationship with the Company or to enter into relationships with individuals or entities performing or\noffering services in competition with the Company; (e) provide services to any prospective purchasers, guests and\ncustomers of the Company in competition with the Company; (f) solicit, recruit, or hire (whether as a consultant,\nemployee, or independent contractor) any individual who is or who was in the six (6) months preceding the\nsolicitation, recruitment, or hiring, a team member/employee of the Company; (g) assist other individuals or entities\nto do the acts set forth in this Section, In particular, you shall not perform business services for Starwood Property\nManagement or Vacation Resorts International during the Restricted Period. It shall not be a defense to a claim of\nbreach of this provision that any homeowners association, owner, prospective purchaser, or customer first\ncontacted you to seek your services. These restrictions shall apply in any jurisdiction and location in which the\nCompany currently conducts or has active plans to conduct business,\nFurther, following your separation, you agree that you shall not use or disclose any confidential information\nor trade secrets of the Company without written authorization of the Company or as required by law and shall not\nmake false or defamatory statements regarding the Company, its business, and its officers, directors and\nemployees. To the extent that you have any questions as to whether any of these restrictions apply to any specific\nemployment or business opportunity you wish to consider you shall contact the Chief Executive Officer in writing\nsetting forth the activities in which you wish to engage and seeking a determination of whether the Company views\nsuch proposed activities as being prohibited by this Agreement. You agree that these prohibitions do not prohibit\nyou from earning a living subject to the obligations contained in this Agreement.\n4. Agreements with Former Employers. You representand warrant to the Company that:\n(a) The performance by you of the obligations under this Agreement will not breach any agreement\nto keep in confidence proprietary information acquired by you in confidence or in trust prior to\nyour employment by the Company, and during your employment by the Company you will not\nbreach any obligation of confidentiality that you may have to any former employer.\n(b) You have not brought and will not bring to the Company or use in the performance of your\nduties atthe Company any materials or documents of a former employer that are not generally\navailable to the public or othenNise subject to a duty of confidentiality, unless you have\nobtained express written authorization from the former employer for their possession and use\nand delivered a copy ofsuch authorization to the Company.\nA-2\nExecutive Company\n5. No Recruiting of Employees, Customers or Business Partners. To meet the demands of our business,\nwe invest a lot of time and resources in hiring and training quality employees, and in finding and building\nrelationships with our customers and business partners. In recognition of our investment, you agree that\nwhile you are employed by us and for one (1) year afterthat:\n(3()ou will notdirectly or indirectly induce or attempt to induce any person then engaged or employed\npart-time or full-time by the Company, whether as an officer, employee, consultant, adviser or\nindependent contractor, to leave the employ of the Company or to cease providing or othenNise\nalter the services then provided to the Company.\n(M)ou will not directly or indirectly induce or attempt to induce any customer or business partner of\nthe Company to cease doing business with the Company.\n6. Dug to Inform Subseguent Employer. You agree that, if you are no longer employed by us, you will\ninform any subsequent employer (or client if you engage in consulting work) that you are a party to this\nAgreementand if requested will provide a copy ofthis Agreement to such subsequentemployer or client.\n7. Records. Because of the need for confidentiality, we must maintain tight controls over our business\nrecords. Business records are those documents whose primary purpose is to record the actions of the\nCompany, including marketing and financial matters. Therefore, you agree not to remove any business\nrecords (whether in written or electronic form) from our premises without the prior written consent of our\nChief Executive Officer. Notwithstanding the foregoing, you may remove business records from Company\npremises to the extent necessary to carry outyour responsibilities under the EmploymentAgreement. Such\ndocuments shall be returned to the premises immediately once they are no longer necessary. All\ndocuments must immediately be returned to the Company upon termination of employment.\n8. Company Property. You agree that if you leave our employ you will promptly return any Company\nproperty in your possession wherever it may be located. You also agree to cooperate with and follow the\ninstructions of the Company and to permit access to professionals retained by the Company for assistance\nin removing any digital copies ofCompany documents from the hard drives of computers or electronic data\ndigital storage devices that you use, including flash drives, external hard drives, Personal Data Assistants,\ncell phones, tablet computers, and other devices. If you do not promptly return such property, we may\nexercise all of our legal remedies to recover such property, and you agree to reimburse us for all expenses\n(including attorneys' fees and courtcosts) incurred in connection with the attempt to recover such property.\n9. Communication with the Public. Under all circumstances, communications with anyone from the media\nshould be strictly limited (other than to say that a call will be referred to the appropriate person within the\nCompany). Only persons authorized by the Chief Executive Officer of the Company shall be entitled to\nspeak with the press on any subject.\n10. Iniunctive Relief of Breaches. I understand that any failure by me to perform my duties, obligations\nand agreements in this document could result in irreparable injury to the Company. We both agree that\ndamages would be an inadequate remedy for the Company in the event of breach or threatened breach of\nthis Agreement. Accordingly, you agree in advance that in addition to the remedies othenNise available to\nthe Company at law, the Company is entitled to receive restraining orders and/or injunctive relief without\nbond from courts ofcompetentjurisdiction to enforce any ofthose duties, obligations or agreements.\nA-3\nExecutive Company\nll. Arbitration. All disputes in connection with or arising out of this Agreement shall be subject to the\narbitration provisions attached hereto as Exhibit B, which exhibit is incorporated herein by this reference.\nThe only exception is that either you or we may seek injunctive relieve from any court having jurisdiction.\nBoth parties consent to exclusive jurisdiction in Clark County, Nevada.\n12. Severabiliy. Ifany portion of this Agreement is invalid or unenforceable, or if this Agreement is invalid\nor unenforceable in any particular circumstance, that fact shall not affect the validity or enforceability of any\nother provision of this Agreement or its application in any other circumstance.\nl3. Governing Law. Our respective rights and liabilities under this Agreement shall be governed by the\nlaws ofthe State of Nevada, regardless of the choice of law provisions of Nevada or any otherjurisdiction.\nResorts International Marketing, Inc.\nI HAVE CAREFULLY READ AND CONSIDERED THE TERMS OF THIS AGREEMENT. I HAVE ASKED ANY\nQUESTIONS ABOUT THEM WHICH I MIGHT HAVE HAD AND UNDERSTAND THEIR IMPLICATIONS. I ALSO\nUNDERSTAND THAT ANY CHANGES IN THIS AGREEMENT MUST BE IN WRITING AND SIGNED BY THE\nCOMPANY'S CHIEF EXECUTIVE OFFICER.\nMichael Flaskey\nDO NOT SIGN THIS AGREEMENT UNLESS YOU UNDERSTAND AND AGREE\nTO ALL OF ITS TERMS. THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE.	Exhibit A\nConfidentiality and Non-Competition Agreement\nWe are pleased that you have decided to continue to serve as an employee of Diamond Resorts\nInternational Marketing, Inc. (the "Company"). We are concurrently executing an Employment Agreement with you.\nAs a condition to our offering you the Employment Agreement and to ensure that you understand and agree with\nsome of our more important policies, we have described them in this Agreement. Please read this Agreement\ncarefully and then sign the last page if you understand and agree to it. This is a binding contract.\n1.\nConfidentiality. You acknowledge that, in the course of performing your responsibilities under this\nAgreement, you wil form relationships and become acquainted with Confidential Information. As an\nemployee, you will have access to much of our confidentia information. By way of example, our confidential\ninformation includes information about the Company's business, independent contractor relationships,\ncontracts, client relationships, potential customers, existing customer names, phone numbers and\naddresses,\nCompany\nmanuals,\nsales\ntechniques,\nregistration\ncards,\nbooks,\nrecords,\nletters,\nforms,\ncustomer relationships, marketing information, business plans, financial data, bank information, forecasts,\nstrategies, and information about (or acquired from) our business partners. We agree that the existence and\nnegotiation of your employment agreement, and any non-public information exchanged in connection\ntherewith, is confidential. Please note that this is not an exhaustive list of our confidentia information, and\nyou agree to consult with us in advance if there is any question regarding the confidential nature of any\ninformation. You agree to keep this information strictly confidential. You may not use or disclose any of it for\nany purpose other than as necessary for Company business. Furthermore, you agree that if you leave our\nemploy you wil continue to treat that information as confidential, and will return all documents and\ncomputer discs and files containing that information to us.\n2.\nInventions. We invest significant time and financial resources in the development of our business. In\nrecognition of this investment, you hereby irrevocably assign to us all interest in any inventions, discoveries,\ndevelopments, improvements and innovations, whether or not patentable ("Inventions") which you help\ndevelop\nduring\nyour\nemployment\nwith\nus.\nIf\nrequested\nby\nus,\nyou\nwill\nexecute\nspecific\nassignments\nand\nother documents helpful or necessary to evidence our ownership of such inventions and assist us in\nobtaining or defending patents for such inventions. You will promptly disclose in writing to us any inventions\nyou help develop during your employment with us regardless of whether you believe such inventions will be\nthe property of the Company. We agree to treat such disclosures in confidence.\n3. Covenant Not to Compete. You agree that our Confidential Information is valuable to us, and the\nrestrictions on your future employment contained in this Agreement are reasonably necessary in order for\nus to remain competitive in our business. You agree that during the course of your employment with the\nCompany you have learned and will learn trade secrets and valuable confidential information of the\nCompany, have developed and will develop substantia business relationships with specific customers and\nprospective customers or clients of the Company and entities doing business with the Company, including\nhomeowners associations, and have developed and will develop goodwill on behalf of the Company in\nevery geographic area in which the Company owns or manages properties or has plans to do so. You have\nparticipated\nand\nwill\nparticipate\nin\nspecialized\ntraining\non\nbehalf\nof\nthe\nCompany.\nIn\nconsideration\nof\nour\nexecution of the Employment Agreement and the compensation payable to you under the mployment\nAgreement, and in recognition of our heightened need for protection from abuse of relationships formed or\nConfidential Information garnered, you covenant and agree that during the term of your employment\nagreement and for one (1) year after termination (excluding your termination without Cause as defined\ntherein), you will not directly or indirectly engage in the\nA-1\nExecutive\nCompany\nbusiness of the Company, which shall include without limitation, timesharing, club or affiliates that (i)\noperate a timeshare, interval, points membership or vacation membership resort or (ii) have a marketing or\nsales office that engages in the business of the Company.\nYou further agree that for a period of two (2) years following your separation from the Company, you shall\nnot directly or indirectly, whether for pay or otherwise, alone or with or on behalf of others, (a) solicit or contact for\nthe\npurpose\nof\nproviding,\nor\nprovide\n(regardless\nof\nwhether\nyou\nengaged\nin\nsolicitations)\nbusiness\nservices\nof\nthe\nsame type provided by the Company to any homeowners association with which you have conducted business or\nwith which you have sought to do business on behalf of the Company; (b) divert or attempt to divert any\nhomeowners association with which you have conducted business or attempted to conduct business on behalf of\nthe Company to enter into business relationships with any individuals or entities of the same or similar type as the\nrelationships with which they have conducted with the Company during your employment with the Company; (c)\nassist, encourage, or induce any homeowners association with which you have dealt on behalf of the Company\nduring your employment with the Company to terminate or reduce its business relationship with the Company; (d)\nsolicit or contact any members, prospective purchasers, guests and customers of the Company to reduce or\nterminate their relationship with the Company or to enter into relationships with individuals or entities performing or\noffering services in competition with the Company; (e) provide services to any prospective purchasers, guests and\ncustomers of the Company in competition with the Company; (f) solicit, recruit, or hire (whether as a consultant,\nemployee, or independent contractor) any individual who is or who was in the six (6) months preceding the\nsolicitation, recruitment, or hiring, a team member/employee of the Company; (g) assist other individuals or entities\nto\ndo\nthe\nacts\nset\nforth\nin\nthis\nSection,\nIn\nparticular,\nyou\nshall\nnot\nperform\nbusiness\nservices\nfor\nStarwood\nProperty\nManagement or Vacation Resorts International during the Restricted Period. It shall not be a defense to a claim of\nbreach of this provision that any homeowners association, owner, prospective purchaser, or customer first\ncontacted you to seek your services. These restrictions shall apply in any jurisdiction and location in which the\nCompany currently conducts or has active plans to conduct business,\nFurther, following your separation, you agree that you shall not use or disclose any confidential information\nor trade secrets of the Company without written authorization of the Company or as required by law and shall not\nmake false or defamatory statements regarding the Company, its business, and its officers, directors and\nemployees. To the extent that you have any questions as to whether any of these restrictions apply to any specific\nemployment or business opportunity you wish to consider you shall contact the Chief Executive Officer in writing\nsetting\nforth\nthe\nactivities\nin\nwhich\nyou\nwish\nto\nengage\nand\nseeking\na\ndetermination\nof\nwhether\nthe\nCompany\nviews\nsuch proposed activities as being prohibited by this Agreement. You agree that these prohibitions do not prohibit\nyou from earning a living subject to the obligations contained in this Agreement.\n4. Agreements with Former Employers. You represent and warrant to the Company that:\n(a) The performance by you of the obligations under this Agreement will not breach any agreement\nto keep in confidence proprietary information acquired by you in confidence or in trust prior to\nyour employment by the Company, and during your employment by the Company you will not\nbreach any obligation of confidentiality that you may have to any former employer.\n(b) You have not brought and will not bring to the Company or use in the performance of your\nduties at the Company any materials or documents of a former employer that are not generally\navailable to the public or otherwise subject to a duty of confidentiality, unless you have\nobtained express written authorization from the former employer for their possession and use\nand delivered a copy of such authorization to the Company.\nA-2\nExecutive Company\n5.\nNo Recruiting of mployees, Customers or Business Partners. To meet the demands of our business,\nwe invest a lot of time and resources in hiring and training quality employees, and in finding and building\nrelationships with our customers and business partners. In recognition of our investment, you agree that\nwhile you are employed by us and for one (1) year after that:\n(d)u will not directly or indirectly induce or attempt to induce any person then engaged or employed\npart-time or full-time by the Company, whether as an officer, employee, consultant, adviser or\nindependent contractor, to leave the employ of the Company or to cease providing or otherwise\nalter the services then provided to the Company.\n(b)u will not directly or indirectly induce or attempt to induce any customer or business partner of\nthe Company to cease doing business with the Company.\n6. Duty to Inform Subsequent Employer. You agree that, if you are no longer employed by us, you will\ninform any subsequent employer (or client if you engage in consulting work) that you are a party to this\nAgreement and if requested will provide a copy of this Agreement to such subsequent employer or client.\n7.\nRecords. Because of the need for confidentiality, we must maintain tight controls over our business\nrecords. Business records are those documents whose primary purpose is to record the actions of the\nCompany,\nincluding\nmarketing\nand\nfinancial\nmatters.\nTherefore,\nyou\nagree\nnot\nto\nremove\nany\nbusiness\nrecords (whether in written or electronic form) from our premises without the prior written consent of our\nChief Executive Officer. Notwithstanding the foregoing, you may remove business records from Company\npremises to the extent necessary to carry out your responsibilities under the Employment Agreement. Such\ndocuments shall be returned to the premises immediately once they are no longer necessary. All\ndocuments must immediately be returned to the Company upon termination of employment.\n8.\nCompany Property. You agree that if you leave our employ you will promptly return any Company\nproperty in your possession wherever it may be located. You also agree to cooperate with and follow the\ninstructions of the Company and to permit access to professionals retained by the Company for assistance\nin removing any digital copies of Company documents from the hard drives of computers or electronic data\ndigital storage devices that you use, including flash drives, externa hard drives, Personal Data Assistants,\ncell phones, tablet computers, and other devices. If you do not promptly return such property, we may\nexercise all of our legal remedies to recover such property, and you agree to reimburse us for all expenses\n(including attorneys' fees and court costs) incurred in connection with the attempt to recover such property.\n9.\nCommunication with the Public. Under all circumstances, communications with anyone from the media\nshould be strictly limited (other than to say that a call will be referred to the appropriate person within the\nCompany). Only persons authorized by the Chief Executive Officer of the Company shall be entitled to\nspeak with the press on any subject.\n10. Injunctive Relief of Breaches. I understand that any failure by me to perform my duties, obligations\nand agreements in this document could result in irreparable injury to the Company. We both agree that\ndamages would be an inadequate remedy for the Company in the event of breach or threatened breach of\nthis Agreement Accordingly, you agree in advance that in addition to the remedies otherwise available to\nthe Company at law, the Company is entitled to receive restraining orders and/or injunctive relief without\nbond from courts of competent jurisdiction to enforce any of those duties, obligations or agreements.\nA-3\nExecutive\nCompany\n11. Arbitration. All disputes in connection with or arising out of this Agreement shall be subject to the\narbitration provisions attached hereto as Exhibit B, which exhibit is incorporated herein by this reference.\nThe only exception is that either you or we may seek injunctive relieve from any court having jurisdiction.\nBoth parties consent to exclusive jurisdiction in Clark County, Nevada.\n12. Severability. If any portion of this Agreement is invalid or unenforceable, or if this Agreement is invalid\nor unenforceable in any particular circumstance, that fact shall not affect the validity or enforceability of any\nother provision of this Agreement or its application in any other circumstance.\n13.\nGoverning Law. Our respective rights and liabilities under this Agreement shall be governed by the\nlaws of the State of Nevada, regardless of the choice of law provisions of Nevada or any other jurisdiction.\nResorts International Marketing, Inc.\nDate:\nBy:\nIts:\nI HAVE CAREFULLY READ AND CONSIDERED THE TERMS OF THIS AGREEMENT. I HAVE ASKED ANY\nQUESTIONS ABOUT THEM WHICH I MIGHT HAVE HAD AND UNDERSTAND THEIR IMPLICATIONS. I ALSO\nUNDERSTAND THAT ANY CHANGES IN THIS AGREEMENT MUST BE IN WRITING AND SIGNED BY THE\nCOMPANY'S CHIEF EXECUTIVE OFFICER.\nDate:\nMichael Flaskey\nDO NOT SIGN THIS AGREEMENT UNLESS YOU UNDERSTAND AND AGREE\nTO ALL OF ITS TERMS. THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE.	Exhibit A\nConfidentiality and Non-Competition Agreement\nWe are pleased that you have decided to continue to serve as an employee of Diamond Resorts\nInternational Marketing, Inc. (the “Company”). We are concurrently executing an Employment Agreement with you.\nAs a condition to our offering you the Employment Agreement and to ensure that you understand and agree with\nsome of our more important policies, we have described them in this Agreement. Please read this Agreement\ncarefully and then sign the last page if you understand and agree to it. This is a binding contract.\n1. Confidentiality. You acknowledge that, in the course of performing your responsibilities under this\nAgreement, you will form relationships and become acquainted with Confidential Information. As an\nemployee, you will have access to much of our confidential information. By way of example, our confidential\ninformation includes information about the Company’s business, independent contractor relationships,\ncontracts, client relationships, potential customers, existing customer names, phone numbers and\naddresses, Company manuals, sales techniques, registration cards, books, records, letters, forms,\ncustomer relationships, marketing information, business plans, financial data, bank information, forecasts,\nstrategies, and information about (or acquired from) our business partners. We agree that the existence and\nnegotiation of your employment agreement, and any non-public information exchanged in connection\ntherewith, is confidential. Please note that this is not an exhaustive list of our confidential information, and\nyou agree to consult with us in advance if there is any question regarding the confidential nature of any\ninformation. You agree to keep this information strictly confidential. You may not use or disclose any of it for\nany purpose other than as necessary for Company business. Furthermore, you agree that if you leave our\nemploy you will continue to treat that information as confidential, and will return all documents and\ncomputer discs and files containing that information to us.\n2. Inventions. We invest significant time and financial resources in the development of our business. In\nrecognition of this investment, you hereby irrevocably assign to us all interest in any inventions, discoveries,\ndevelopments, improvements and innovations, whether or not patentable (“Inventions”) which you help\ndevelop during your employment with us. If requested by us, you will execute specific assignments and\nother documents helpful or necessary to evidence our ownership of such inventions and assist us in\nobtaining or defending patents for such inventions. You will promptly disclose in writing to us any inventions\nyou help develop during your employment with us regardless of whether you believe such inventions will be\nthe property of the Company. We agree to treat such disclosures in confidence.\n3. Covenant Not to Compete. You agree that our Confidential Information is valuable to us, and the\nrestrictions on your future employment contained in this Agreement are reasonably necessary in order for\nus to remain competitive in our business. You agree that during the course of your employment with the\nCompany you have learned and will learn trade secrets and valuable confidential information of the\nCompany, have developed and will develop substantial business relationships with specific customers and\nprospective customers or clients of the Company and entities doing business with the Company, including\nhomeowners associations, and have developed and will develop goodwill on behalf of the Company in\nevery geographic area in which the Company owns or manages properties or has plans to do so. You have\nparticipated and will participate in specialized training on behalf of the Company. In consideration of our\nexecution of the Employment Agreement and the compensation payable to you under the Employment\nAgreement, and in recognition of our heightened need for protection from abuse of relationships formed or\nConfidential Information garnered, you covenant and agree that during the term of your employment\nagreement and for one (1) year after termination (excluding your termination without Cause as defined\ntherein), you will not directly or indirectly engage in the\nA-1\n___ ___ _\n___ ___ _\nExecutive\nCompany\nbusiness of the Company, which shall include without limitation, timesharing, club or affiliates that (i)\noperate a timeshare, interval, points membership or vacation membership resort or (ii) have a marketing or\nsales office that engages in the business of the Company.\nYou further agree that for a period of two (2) years following your separation from the Company, you shall\nnot directly or indirectly, whether for pay or otherwise, alone or with or on behalf of others, (a) solicit or contact for\nthe purpose of providing, or provide (regardless of whether you engaged in solicitations) business services of the\nsame type provided by the Company to any homeowners association with which you have conducted business or\nwith which you have sought to do business on behalf of the Company; (b) divert or attempt to divert any\nhomeowners association with which you have conducted business or attempted to conduct business on behalf of\nthe Company to enter into business relationships with any individuals or entities of the same or similar type as the\nrelationships with which they have conducted with the Company during your employment with the Company; (c)\nassist, encourage, or induce any homeowners association with which you have dealt on behalf of the Company\nduring your employment with the Company to terminate or reduce its business relationship with the Company; (d)\nsolicit or contact any members, prospective purchasers, guests and customers of the Company to reduce or\nterminate their relationship with the Company or to enter into relationships with individuals or entities performing or\noffering services in competition with the Company; (e) provide services to any prospective purchasers, guests and\ncustomers of the Company in competition with the Company; (f) solicit, recruit, or hire (whether as a consultant,\nemployee, or independent contractor) any individual who is or who was in the six (6) months preceding the\nsolicitation, recruitment, or hiring, a team member/employee of the Company; (g) assist other individuals or entities\nto do the acts set forth in this Section, In particular, you shall not perform business services for Starwood Property\nManagement or Vacation Resorts International during the Restricted Period. It shall not be a defense to a claim of\nbreach of this provision that any homeowners association, owner, prospective purchaser, or customer first\ncontacted you to seek your services. These restrictions shall apply in any jurisdiction and location in which the\nCompany currently conducts or has active plans to conduct business,\nFurther, following your separation, you agree that you shall not use or disclose any confidential information\nor trade secrets of the Company without written authorization of the Company or as required by law and shall not\nmake false or defamatory statements regarding the Company, its business, and its officers, directors and\nemployees. To the extent that you have any questions as to whether any of these restrictions apply to any specific\nemployment or business opportunity you wish to consider you shall contact the Chief Executive Officer in writing\nsetting forth the activities in which you wish to engage and seeking a determination of whether the Company views\nsuch proposed activities as being prohibited by this Agreement. You agree that these prohibitions do not prohibit\nyou from earning a living subject to the obligations contained in this Agreement.\n4. Agreements with Former Employers. You represent and warrant to the Company that:\n(a) The performance by you of the obligations under this Agreement will not breach any agreement\nto keep in confidence proprietary information acquired by you in confidence or in trust prior to\nyour employment by the Company, and during your employment by the Company you will not\nbreach any obligation of confidentiality that you may have to any former employer.\n(b) You have not brought and will not bring to the Company or use in the performance of your\nduties at the Company any materials or documents of a former employer that are not generally\navailable to the public or otherwise subject to a duty of confidentiality, unless you have\nobtained express written authorization from the former employer for their possession and use\nand delivered a copy of such authorization to the Company.\nA-2\n___ ___ _\n___ ___ _\nExecutive\nCompany\n5. No Recruiting of Employees, Customers or Business Partners. To meet the demands of our business,\nwe invest a lot of time and resources in hiring and training quality employees, and in finding and building\nrelationships with our customers and business partners. In recognition of our investment, you agree that\nwhile you are employed by us and for one (1) year after that:\n(a)You will not directly or indirectly induce or attempt to induce any person then engaged or employed\npart-time or full-time by the Company, whether as an officer, employee, consultant, adviser or\nindependent contractor, to leave the employ of the Company or to cease providing or otherwise\nalter the services then provided to the Company.\n(b)You will not directly or indirectly induce or attempt to induce any customer or business partner of\nthe Company to cease doing business with the Company.\n6. Duty to Inform Subsequent Employer. You agree that, if you are no longer employed by us, you will\ninform any subsequent employer (or client if you engage in consulting work) that you are a party to this\nAgreement and if requested will provide a copy of this Agreement to such subsequent employer or client.\n7. Records. Because of the need for confidentiality, we must maintain tight controls over our business\nrecords. Business records are those documents whose primary purpose is to record the actions of the\nCompany, including marketing and financial matters. Therefore, you agree not to remove any business\nrecords (whether in written or electronic form) from our premises without the prior written consent of our\nChief Executive Officer. Notwithstanding the foregoing, you may remove business records from Company\npremises to the extent necessary to carry out your responsibilities under the Employment Agreement. Such\ndocuments shall be returned to the premises immediately once they are no longer necessary. All\ndocuments must immediately be returned to the Company upon termination of employment.\n8. Company Property. You agree that if you leave our employ you will promptly return any Company\nproperty in your possession wherever it may be located. You also agree to cooperate with and follow the\ninstructions of the Company and to permit access to professionals retained by the Company for assistance\nin removing any digital copies of Company documents from the hard drives of computers or electronic data\ndigital storage devices that you use, including flash drives, external hard drives, Personal Data Assistants,\ncell phones, tablet computers, and other devices. If you do not promptly return such property, we may\nexercise all of our legal remedies to recover such property, and you agree to reimburse us for all expenses\n(including attorneys’ fees and court costs) incurred in connection with the attempt to recover such property.\n9. Communication with the Public. Under all circumstances, communications with anyone from the media\nshould be strictly limited (other than to say that a call will be referred to the appropriate person within the\nCompany). Only persons authorized by the Chief Executive Officer of the Company shall be entitled to\nspeak with the press on any subject.\n10. Injunctive Relief of Breaches. I understand that any failure by me to perform my duties, obligations\nand agreements in this document could result in irreparable injury to the Company. We both agree that\ndamages would be an inadequate remedy for the Company in the event of breach or threatened breach of\nthis Agreement. Accordingly, you agree in advance that in addition to the remedies otherwise available to\nthe Company at law, the Company is entitled to receive restraining orders and/or injunctive relief without\nbond from courts of competent jurisdiction to enforce any of those duties, obligations or agreements.\nA-3\n___ ___ _\n___ ___ _\nExecutive\nCompany\n11. Arbitration. All disputes in connection with or arising out of this Agreement shall be subject to the\narbitration provisions attached hereto as Exhibit B, which exhibit is incorporated herein by this reference.\nThe only exception is that either you or we may seek injunctive relieve from any court having jurisdiction.\nBoth parties consent to exclusive jurisdiction in Clark County, Nevada.\n12. Severability. If any portion of this Agreement is invalid or unenforceable, or if this Agreement is invalid\nor unenforceable in any particular circumstance, that fact shall not affect the validity or enforceability of any\nother provision of this Agreement or its application in any other circumstance.\n13.\nGoverning Law. Our respective rights and liabilities under this Agreement shall be governed by the\nlaws of the State of Nevada, regardless of the choice of law provisions of Nevada or any other jurisdiction.\nDiamond\nResorts International Marketing, Inc.\nDate:\n___ ___ ___ ___ ____ ___ ___ ___ _\n__ ___ ___ ____ ___ ___ ___ ___ ___\n_\nBy:\nIts:\nI HAVE CAREFULLY READ AND CONSIDERED THE TERMS OF THIS AGREEMENT. I HAVE ASKED ANY\nQUESTIONS ABOUT THEM WHICH I MIGHT HAVE HAD AND UNDERSTAND THEIR IMPLICATIONS. I ALSO\nUNDERSTAND THAT ANY CHANGES IN THIS AGREEMENT MUST BE IN WRITING AND SIGNED BY THE\nCOMPANY’S CHIEF EXECUTIVE OFFICER.\nDate:\n___ ___ ___ ___ ____ ___ ___ ___ _\n__ ___ ___ ____ ___ ___ ___ ___ ___\n_\nMichael Flaskey\nDO NOT SIGN THIS AGREEMENT UNLESS YOU UNDERSTAND AND AGREE\nTO ALL OF ITS TERMS. THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE.
cc37a90cde61e49f20b8d12f710a5719.pdf	effective_date jurisdiction party term	NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (the Agreement), dated as\nof,20\n, is executed by\n(Recipient) for the benefit\nof VIOLIN MEMORY, INC., a Delaware corporation (Violin). Recipient is a contractor or provider of services to premises leased by Violin\nlocated at 685 Clyde Avenue in the City of Mountain View, California (the "Premises") and in connection with Recipient's provision of such\nservices, Recipient may come into contact or observe information that is sensitive, proprietary or confidential to Violin. In consideration for payment\nto Recipient of compensation for such services pursuant to a separate agreement or agreements between Recipient and Violin, or between Recipient\nand the owner of the building in which the Premises are located, as the case may be, Recipient agrees as follows:\n1. Definition. Proprietary Information means, to the extent observed by Recipient or that otherwise is disclosed to Recipient, all financial, business,\nlegal and technical information of Violin or any of its affiliates, suppliers, customers and employees (including information about research,\ndevelopment, operations, marketing, transactions, regulatory affairs, discoveries, inventions, methods, processes, articles, materials, algorithms,\nsoftware, specifications, designs, drawings, data, strategies, plans, prospects, know-how and ideas, whether tangible or intangible, and including all\ncopies, analyses and derivatives thereof). Proprietary Information shall not include any information that (a) was rightfully known to Recipient\nwithout restriction before receipt from Violin, (b) is rightfully disclosed to Recipient by a third party without restriction or (c) is or becomes\ngenerally known to the public through no fault of Recipient.\n2. Restrictions. Recipient agrees (a) to maintain the Proprietary Information as secret, and exercise all reasonable precautions to prevent\nunauthorized access to it, (b) not to copy the Proprietary Information, and (c) not to disclose it to any third party. Recipient shall promptly notify\nViolin of any unauthorized use or disclosure of Proprietary Information, and shall be responsible for any breach of confidentiality by its employees\nand agents.\n3. Remedies. Due to the unique nature of the Proprietary Information, Recipient agrees that any breach or threatened breach of this Agreement will\ncause not only financial harm to Violin, but also irreparable harm for which money damages will not be an adequate remedy. Therefore, Violin shall\nbe entitled, in addition to any other legal or equitable remedies, to an injunction or similar equitable relief against any such breach or threatened\nbreach without the necessity of posting any bond.\n4. General. The failure of Violin to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such\nrights. Unless expressly provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity,\nand the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. In the event that any provision of this Agreement\nshall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that the\nAgreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed by and construed in accordance with\nthe laws of the State of California without regard to the conflicts of laws provisions thereof. Exclusive jurisdiction and venue for any action arising\nunder this Agreement is in the federal and state courts located in California having jurisdiction over Violin’s principal office, and Recipient hereby\nconsents to such jurisdiction and venue for this purpose. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will\nbe entitled to recover from the other party its costs and expenses (including reasonable attorneys' fees) incurred in connection with such action or\nproceeding and enforcing any judgment or order obtained. Any notice hereunder will be effective upon receipt and shall be given in writing, in\nEnglish and delivered to the other party at its address given herein or at such other address designated by written notice.\nIN WITNESS WHEREOF, Recipient has executed this Agreement effective as of the date and year first written above.\nRECIPIENT\nBy:\nName:\nTitle:\nPage 1	NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (the Agreement), dated as of ,20 , is executed by (Recipient) for the benefit\nof VIOLIN MEMORY, INC., a Delaware corporation (Violin). Recipient is a contractor or provider of services to premises leased by Violin\nlocated at 685 Clyde Avenue in the City of Mountain View, California (the "Premises") and in connection with Recipient's provision of such\nservices, Recipient may come into contact or observe information that is sensitive, proprietary or confidential to Violin. In consideration for payment\nto Recipient of compensation for such services pursuant to a separate agreement or agreements between Recipient and Violin, or between Recipient\nand the owner of the building in which the Premises are located, as the case may be, Recipient agrees as follows:\n1. Definition. Proprietary Information means, to the extent observed by Recipient or that otherwise is disclosed to Recipient, all financial, business,\nlegal and technical information of Violin or any of its affiliates, suppliers, customers and employees (including information about research,\ndevelopment, operations, marketing, transactions, regulatory affairs, discoveries, inventions, methods, processes, articles, materials, algorithms,\nsoftware, specifications, designs, drawings, data, strategies, plans, prospects, know-how and ideas, whether tangible or intangible, and including all\ncopies, analyses and derivatives thereof). Proprietary Information shall not include any information that (a) was rightfully known to Recipient\nwithout restriction before receipt from Violin, (b) is rightfully disclosed to Recipient by a third party without restriction or (c) is or becomes\ngenerally known to the public through no fault of Recipient.\n2. Restrictions. Recipient agrees (a) to maintain the Proprietary Information as secret, and exercise all reasonable precautions to prevent\nunauthorized access to it, (b) not to copy the Proprietary Information, and (c) not to disclose it to any third party. Recipient shall promptly notify\nViolin of any unauthorized use or disclosure of Proprietary Information, and shall be responsible for any breach of confidentiality by its employees\nand agents.\n3. Remedies. Due to the unique nature of the Proprietary Information, Recipient agrees that any breach or threatened breach of this Agreement will\ncause not only financial harm to Violin, but also irreparable harm for which money damages will not be an adequate remedy. Therefore, Violin shall\nbe entitled, in addition to any other legal or equitable remedies, to an injunction or similar equitable relief against any such breach or threatened\nbreach without the necessity of posting any bond.\n4. General. The failure of Violin to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such\nrights. Unless expressly provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity,\nand the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. In the event that any provision of this Agreement\nshall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that the\nAgreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed by and construed in accordance with\nthe laws of the State of California without regard to the conflicts of laws provisions thereof. Exclusive jurisdiction and venue for any action arising\nunder this Agreement is in the federal and state courts located in California having jurisdiction over Violin’s principal office, and Recipient hereby\nconsents to such jurisdiction and venue for this purpose. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will\nbe entitled to recover from the other party its costs and expenses (including reasonable attorneys' fees) incurred in connection with such action or\nproceeding and enforcing any judgment or order obtained. Any notice hereunder will be effective upon receipt and shall be given in writing, in\nEnglish and delivered to the other party at its address given herein or at such other address designated by written notice.\nIN WITNESS WHEREOF, Recipient has executed this Agreement effective as of the date and year first written above.\nRECIPIENT\nBy:\nName:\nTitle:\nPage 1	NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (the Agreement), dated as\nof 20 is executed by\n(Recipient) for the benefit\nof VIOLIN MEMORY, INC., a Delaware corporation (Violin). Recipient is a contractor or provider of services to premises leased by Violin\nlocated at 685 Clyde Avenue in the City of Mountain View, California (the "Premises") and in connection with Recipient's provision of such\nservices,\nRecipient may come into contact or observe information that is sensitive, proprietary or confidential to Violin. In consideration for payment\nto Recipient of compensation for such services pursuant to a separate agreement or agreements between Recipient and Violin, or between Recipient\nand the owner of the building in which the Premises are located, as the case may be, Recipient agrees as follows:\n1. Definition. Proprietary Information means, to the extent observed by Recipient or that otherwise is disclosed to Recipient, all financial, business,\nlegal and technical information of Violin or any of its affiliates, suppliers, customers and employees (including information about research,\ndevelopment, operations, marketing, transactions, regulatory affairs, discoveries, inventions, methods, processes, articles, materials, algorithms,\nsoftware, specifications, designs, drawings, data, strategies, plans, prospects, know-how and ideas, whether tangible or intangible, and including all\ncopies, analyses and derivatives thereof). Proprietary Information shall not include any information that (a) was rightfully known to Recipient\nwithout restriction before receipt from Violin, (b) is rightfully disclosed to Recipient by a third party without restriction or (c) is or becomes\ngenerally known to the public through no fault of Recipient.\n2.\nRestrictions. Recipient agrees (a) to maintain the Proprietary Information as secret, and exercise all reasonable precautions to prevent\nunauthorized access to it, (b) not to copy the Proprietary Information, and (c) not to disclose it to any third party. Recipient shall promptly notify\nViolin of any unauthorized use or disclosure of Proprietary Information, and shall be responsible for any breach of confidentiality by its employees\nand agents.\n3. Remedies. Due to the unique nature of the Proprietary Information, Recipient agrees that any breach or threatened breach of this Agreement will\ncause not only financial harm to Violin, but also irreparable harm for which money damages will not be an adequate remedy. Therefore, Violin\nshall\nbe entitled, in addition to any other legal or equitable remedies, to an injunction or similar equitable relief against any such breach or threatened\nbreach without the necessity of posting any bond.\n4. General. The failure of Violin to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such\nrights. Unless expressly provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity,\nand the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. In the event that any provision of this Agreement\nshall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that the\nAgreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed by and construed in accordance\nwith\nthe\nlaws of the State of California without regard to the conflicts of laws provisions thereof. Exclusive jurisdiction and venue for any action arising\nunder this Agreement is in the federal and state courts located in California having jurisdiction over Violin's principal office, and Recipient hereby\nconsents to such jurisdiction and venue for this purpose. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will\nbe entitled to recover from the other party its costs and expenses (including reasonable attorneys' fees) incurred in connection with such action\nor\nproceeding and enforcing any judgment or order obtained. Any notice hereunder will be effective upon receipt and shall be given in writing, in\nEnglish and delivered to the other party at its address given herein or at such other address designated by written notice.\nIN WITNESS WHEREOF, Recipient has executed this Agreement effective as of the date and year first written above.\nRECIPIENT\nBy:\nName:\nTitle:\nPage 1	NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (the Agreement), dated as\nof,20\n, is executed by\n(Recipient) for the benefit\nof VIOLIN MEMORY, INC., a Delaware corporation (Violin). Recipient is a contractor or provider of services to premises leased by Violin\nlocated at 685 Clyde Avenue in the City of Mountain View, California (the "Premises") and in connection with Recipient's provision of such\nservices, Recipient may come into contact or observe information that is sensitive, proprietary or confidential to Violin. In consideration for payment\nto Recipient of compensation for such services pursuant to a separate agreement or agreements between Recipient and Violin, or between Recipient\nand the owner of the building in which the Premises are located, as the case may be, Recipient agrees as follows:\n1. Definition. Proprietary Information means, to the extent observed by Recipient or that otherwise is disclosed to Recipient, all financial, business,\nlegal and technical information of Violin or any of its affiliates, suppliers, customers and employees (including information about research,\ndevelopment, operations, marketing, transactions, regulatory affairs, discoveries, inventions, methods, processes, articles, materials, algorithms,\nsoftware, specifications, designs, drawings, data, strategies, plans, prospects, know-how and ideas, whether tangible or intangible, and including all\ncopies, analyses and derivatives thereof). Proprietary Information shall not include any information that (a) was rightfully known to Recipient\nwithout restriction before receipt from Violin, (b) is rightfully disclosed to Recipient by a third party without restriction or (c) is or becomes\ngenerally known to the public through no fault of Recipient.\n2. Restrictions. Recipient agrees (a) to maintain the Proprietary Information as secret, and exercise all reasonable precautions to prevent\nunauthorized access to it, (b) not to copy the Proprietary Information, and (c) not to disclose it to any third party. Recipient shall promptly notify\nViolin of any unauthorized use or disclosure of Proprietary Information, and shall be responsible for any breach of confidentiality by its employees\nand agents.\n3. Remedies. Due to the unique nature of the Proprietary Information, Recipient agrees that any breach or threatened breach of this Agreement will\ncause not only financial harm to Violin, but also irreparable harm for which money damages will not be an adequate remedy. Therefore, Violin shall\nbe entitled, in addition to any other legal or equitable remedies, to an injunction or similar equitable relief against any such breach or threatened\nbreach without the necessity of posting any bond.\n4. General. The failure of Violin to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such\nrights. Unless expressly provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity,\nand the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. In the event that any provision of this Agreement\nshall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that the\nAgreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed by and construed in accordance with\nthe laws of the State of California without regard to the conflicts of laws provisions thereof. Exclusive jurisdiction and venue for any action arising\nunder this Agreement is in the federal and state courts located in California having jurisdiction over Violin’s principal office, and Recipient hereby\nconsents to such jurisdiction and venue for this purpose. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will\nbe entitled to recover from the other party its costs and expenses (including reasonable attorneys' fees) incurred in connection with such action or\nproceeding and enforcing any judgment or order obtained. Any notice hereunder will be effective upon receipt and shall be given in writing, in\nEnglish and delivered to the other party at its address given herein or at such other address designated by written notice.\nIN WITNESS WHEREOF, Recipient has executed this Agreement effective as of the date and year first written above.\nRECIPIENT\nBy:\nName:\nTitle:\nPage 1
ccfde6c941f150e15e6220cc18aa1041.pdf	effective_date jurisdiction party	Exhibit B\nNONCOMPETITION AGREEMENT\nThis NONCOMPETITION AGREEMENT (this “Agreement”) is entered into as of this 16th day of June, 2008, by and among BNC Bancorp, a North Carolina corporation, Bank of North Carolina, a North Carolina-chartered bank and wholly\nowned subsidiary of BNC Bancorp (the “Bank”), and Ralph N. Strayhorn III (the “Executive”).\nWHEREAS, the Executive’s service as an officer and director of BNC Bancorp and the Bank is terminating on June 16, 2008,\nWHEREAS, the Executive possesses skills of a special, unique, and unusual character, which therefore have distinctive value,\nWHEREAS, the Executive is familiar with BNC Bancorp’s and the Bank’s business, operations, and properties, and during the time the Executive has been employed by the Bank he has accumulated extensive banking experience and he\nhas established valuable business and client contacts in the market areas served by BNC Bancorp and the Bank,\nWHEREAS, the Executive entered into an employment agreement with BNC Bancorp and the Bank providing for payment of severance benefits after termination of the Executive’s employment, conditioned upon the Executive first\nentering into this Agreement, and\nWHEREAS, the Executive’s employment has terminated or terminates effective June 16, 2008, and severance benefits therefore will become payable under his employment agreement after execution of this Agreement.\nNOW THEREFORE, in consideration of these premises, the mutual covenants contained herein, and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows.\nARTICLE 1\nAGREEMENT NOT TO COMPETE\n1.1 Noncompetition. (a) Agreement not to compete. The Executive hereby agrees that until June 16, 2010 he shall not directly or indirectly, whether for his own account or for the account of any other person, firm, corporation, or other\nbusiness organization –\n(1) engage as an employee, officer, director, manager, salesperson, consultant, independent contractor, representative, or other agent in providing Banking Services (as defined below) on behalf of any other person, firm, corporation, or\nother business organization that is a competitor of the Bank or its Affiliates (as defined below) in Davidson County, any counties contiguous thereto, any counties in which the Bank or any of its Affiliates has an office, or any counties\nfrom which the Bank or any of its affiliates derives revenue that, in the sole judgement of the Bank, is significant,\n(2) provide Banking Services to any Client (as defined below),\n(3) make any statement or take any actions that, in the sole judgement of the Bank, interfere with the Bank’s or its Affiliates’ business relationships with any Client, including but not limited to any statements that are harmful to the\nreputation of the Bank or any of its Affiliates or their standing in the communities they serve,\n(4) except on behalf of the Bank or its Affiliates as may be requested by the Bank, make contact either directly or indirectly with any Client, nor shall the Executive otherwise induce or encourage any Client to enter into any business\nrelationship with any person, firm, corporation, or other business organization other than the Bank or its Affiliates relating to Banking Services or banking business of any type,\n(5) entice or encourage any person employed by or associated with the Bank or its Affiliates as an employee, officer, director, manager, salesperson, consultant, independent contractor, representative, or other agent to serve as an\nemployee, officer, director, manager, salesperson, consultant, independent contractor, representative, or other agent of any person, firm, corporation, or other business organization other than the Bank or its Affiliates, or\n(6) take any actions interfering with the Bank’s or its Affiliates’ property rights in lists of clients, or otherwise diminish the value of such lists to the Bank or its Affiliates.\n(b) Definition of Affiliate. For purposes of this Agreement, the term “Affiliate” means any entity, corporation, or other business organization controlled by the Bank, controlling the Bank, or under common control with the Bank, including\nbut not limited to any subsidiaries of the Bank, any company controlling the Bank, or any company under common control with the Bank.\n(c) Definition of Banking Services. For purposes of this Agreement, the term “Banking Services” means retail or commercial banking business, and all other services customarily provided by banks or otherwise provided by the Bank or its\nAffiliates; provided, however that the term Banking Services specifically excludes asset and trust management, wealth management, and investment services. The Bank understands that the Executive intends after termination of his\nemployment with the Bank to engage in the business of providing asset and trust management, wealth management, and investment services and that the Executive may do so in markets in which the Bank conducts business and to\ncustomers that are or may be Clients of the Bank.\n(d) Definition of Client. For purposes of this Agreement the term “Client” means all persons, firms, corporations, entities, or business organizations who are or were customers or clients of the Bank or any of its Affiliates –\n(1) on the date of this Agreement,\n(2) on the date the Executive’s termination from active service with the Bank becomes effective,\n(3) at any time during the two-year period before the Executive’s termination from active service with the Bank becomes effective, and\n(4) any persons who become clients of the Bank or any of its Affiliates hereafter who were identified by a representative of the Bank or its Affiliates, but only if those persons are identified as prospective clients in writing by the Bank to\nthe Executive when the Executive’s termination from active service becomes effective.\n1.2 Period of time and scope. The Executive acknowledges and agrees that the duration and scope of the noncompetition provision set forth in section 1.1 are reasonable and necessary to protect the legitimate business interests of BNC\nBancorp and the Bank and that they do not interfere unduly with the Executive’s personal or economic freedoms. The Executive acknowledges that his willingness to execute and comply with this Agreement was an essential condition to\nBNC Bancorp’s and the Bank’s willingness to enter into the separate employment agreement with the Executive. If a court of competent jurisdiction or a dispute resolution proceeding authorized hereunder and to which BNC Bancorp and\nthe Bank have agreed to be subject nevertheless holds that the duration or scope, including but not limited to geographic scope, of this Agreement is unreasonable, invalid, or unenforceable, the duration or scope shall be reduced or\nreformed to the extent necessary so that section 1.1 may be enforced by BNC Bancorp and the Bank during such period and for such scope as are held to be reasonable, valid, and enforceable.\n1.3 Understandings. It is understood by and between the parties hereto that the Executive’s covenants in section 1.1 are an essential element of this Agreement and that, but for the agreement of the Executive to comply with such\ncovenants, BNC Bancorp and the Bank would not have entered into the Separation Agreement and Full and Final Release of Claims with the Executive. BNC Bancorp and the Bank and the Executive have independently consulted with or\nhave had the opportunity to independently consult with their respective counsel concerning the reasonableness and validity of such covenants.\nARTICLE 2\nCONFIDENTIALITY\n2.1 Nondisclosure. The Executive shall not reveal to any person, firm, corporation, or other business organization any confidential information of any nature concerning the Bank or its Affiliates, their business, or anything connected\ntherewith. As used in this Article 2, the term “confidential information” means all of the Bank’s and its Affiliates’ confidential and proprietary information and trade secrets in existence on the date hereof or at any time during the term of\nthis Agreement, including but not limited to –\n(a) the whole or any portion or phase of any business plans, financial information, purchasing data, supplier data, accounting data, or other financial information,\n(b) the whole or any portion or phase of any research and development information, design procedures, algorithms, or processes, or other technical information,\n(c) the whole or any portion or phase of any marketing or sales information, sales records, customer lists or client lists, prices, sales projections, or other sales information, and\n(d) trade secrets, as defined from time to time by the laws of the State of North Carolina.\nNotwithstanding the foregoing, confidential information excludes information that – as of the date hereof or at any time after the date hereof – is published or disseminated without obligation of confidence or that becomes a part of the\npublic domain (x) by or through action of the Bank or its Affiliates, and (y) otherwise than by or at the direction of the Executive. This section 2.1 does not prohibit disclosure required by an order of a court having jurisdiction or a\nsubpoena from an appropriate governmental agency.\n2.2 Return of materials. The Executive agrees to deliver or return to the Bank all written confidential information furnished by the Bank or its Affiliates or prepared by the Executive in connection with his services to the Bank. The\nExecutive shall retain no copies thereof after termination of this Agreement or termination of the Executive’s employment with the Bank.\n2.3 Injunctive relief. The Executive acknowledges that it is impossible to measure in money the damages that will accrue to BNC Bancorp and the Bank if the Executive fails to observe the obligations imposed on him by this Article 2.\nAccordingly, if BNC Bancorp or the Bank institutes an action to enforce the provisions hereof, the Executive hereby waives the claim or defense that an adequate remedy at law is available to BNC Bancorp or the Bank, and the Executive\nagrees not to urge in any such action the claim or defense that an adequate remedy at law exists.\n2.4 Survival of common law protection. During and after the term of this Agreement, in addition to the protection thereof given by this Agreement the confidential information of the Bank and its Affiliates shall be entitled to all such\nprotections as may be available under applicable law and the Bank and its Affiliates may seek to enforce any of its rights with respect thereto.\n2.5 Creative work. The Executive agrees that all creative work and work product, including but not limited to all technology, business management tools, processes, software, patents, trademarks, and copyrights developed by the\nExecutive during the term of the employment agreement, regardless of when or where such work or work product was produced, constitutes work made for hire, all rights of which are owned by BNC Bancorp and the Bank. The Executive\nhereby assigns to BNC Bancorp and to the Bank all rights, title, and interest, whether copyright, trade secret, trademark, patent, or otherwise, in all such work or work product, regardless of whether the same is subject to protection by\npatent, trademark, or copyright laws.\n2.6 Rights and obligations survive termination of this Agreement. The rights and obligations set forth in this Article 2 shall survive termination of this Agreement.\nARTICLE 3\nSPECIFIC PERFORMANCE\nThe Executive’s covenants contained in Articles 1 and 2 shall survive termination of the Executive’s employment with the Bank for any reason, and shall be enforceable after such termination. Without intending to limit the remedies\navailable to BNC Bancorp and the Bank, the Executive agrees that damages at law are an insufficient remedy for violation by the Executive of his covenants contained in this Agreement. Accordingly, the Executive hereby agrees that\neither or both of BNC Bancorp or the Bank may apply for and is entitled to injunctive relief in any court of competent jurisdiction to restrain the breach or threatened breach of, or otherwise to specifically enforce, any of the covenants of\nsuch Articles, in each case without proof of actual damages, in addition to any other remedies that may be available under applicable law. The Executive hereby waives the claim or defense that an adequate remedy at law is available to\nBNC Bancorp or the Bank, and the Executive agrees not to urge in any action or proceeding the claim or defense that an adequate remedy at law exists.\nWithout limiting the generality of the foregoing, without limiting the remedies available to BNC Bancorp or the Bank for violation of this Agreement, and without constituting an election of remedies, if the Executive violates any of the\nterms of Articles 1 or 2 he shall forfeit on his own behalf and that of his beneficiary(ies) any rights to and interest in any severance or other benefits under the Separation Agreement and Full and Final Release of Claims and the Separation\nAgreement and Full and Final Release of Claims shall thereafter be null, void, and of no further force or effect.\nARTICLE 4\nMISCELLANEOUS\n4.1 Successors and assigns. Without written consent of the other party, neither BNC Bancorp and the Bank nor the Executive shall assign, transfer, or delegate this Agreement or any rights or obligations under this Agreement except as\nexpressly provided herein. However, any merger or consolidation of the Bank (or any direct or indirect parent thereof) or any sale or transfer of all or substantially all of the stock or assets of the Bank (or any direct or indirect parent\nthereof) shall be considered an assignment expressly agreed to and consistent with the terms of this Agreement and shall not be considered a violation of this Agreement.\nThis Agreement shall be binding upon the parties hereto and their heirs, personal representatives, successors, and permitted assigns. This Agreement shall inure to the benefit of and be enforceable by the Executive’s personal or legal\nrepresentatives, executors, administrators, successors, heirs, distributees, and legatees.\n4.2 Governing law. This Agreement shall be construed under and governed by the internal laws of the State of North Carolina, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of North\nCarolina or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of North Carolina.\n4.3 Entire agreement. This Agreement, as well as the Separation Agreement of even date and this documents referenced therein at Section 7.3(a), set forth the entire agreement of the parties with respect to the subject matter and any oral\nor written statements, representations, agreements, or understandings not set forth in this Agreement that were made or entered into prior to or contemporaneously with the execution of this Agreement are hereby rescinded, revoked, and\nrendered null and void by the parties.\n4.4 Notices. Any notice required or permitted under this Agreement shall be deemed to have been effectively made or given if in writing and personally delivered, delivered by mail properly addressed in a sealed envelope, postage prepaid\nby certified or registered mail, delivered by a reputable overnight delivery service, or sent by facsimile. Unless otherwise changed by notice, notice shall be properly addressed to the Executive if addressed to 2201 Rhododendron Court,\nCharlotte, North Carolina 28205, and properly addressed to BNC Bancorp or the Bank if addressed to BNC Bancorp, 831 Julian Avenue, Thomasville, North Carolina 27361-1148, Attention: Corporate Secretary.\n4.5 Severability. In the case of conflict between any provision of this Agreement and any governing statute, law, regulation, or judicial precedent, the latter shall prevail, but the affected provisions of this Agreement shall be curtailed and\nlimited solely to the extent necessary to bring them within the requirements of law. If any provision of this Agreement is held by a court of competent jurisdiction or in a dispute resolution proceeding to which BNC Bancorp and the Bank\nhave agreed to be subject to be indefinite, invalid, void, voidable, or otherwise unenforceable, the remainder of this Agreement shall continue in full force and effect unless that would clearly be contrary to the intentions of the parties or\nwould result in an injustice.\n4.6 Captions and counterparts. The captions in this Agreement exist solely for convenience. The captions do not define, limit, or describe the scope or intent of this Agreement. This Agreement may be executed in several counterparts,\neach of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.\n4.7 Amendment and waiver. This Agreement may not be amended, released, discharged, abandoned, changed, or modified except by an instrument in writing signed by each of the parties hereto. The failure of any party hereto to enforce\nat any time any of the provisions of this Agreement shall not be construed to be a waiver of any such provision, nor affect the validity of this Agreement or any part thereof or the right of any party to enforce each and every provision. No\nwaiver or any breach of this Agreement shall be held to be a waiver of any other or subsequent breach.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first written above.\nEXECUTIVE\nBNC BANCORP\n/s/ Ralph N. Strayhorn III\nBy:\n/s/ W. Swope Montgomery, Jr.\nRalph N. Strayhorn III\nIts:\nPresident and CEO\nBANK OF NORTH CAROLINA\nBy:\n/s/ W. Swope Montgomery, Jr.\nIts:\nPresident and CEO	Exhibit B\nNONc 0MPETITION AGREEMENT\nThis NONc 0MPETITION AGREEMENT (this "Agreement? is entered into as of this 16th day of June, 2008, by and among BNC Bancorp, a North Carolina corporation, Bank of North Carolina, a North Carolina-chartered bank and wholly\nowned subsidiary of BNC Bancorp (the "Bank"), and Ralph N. Strayhorn III (the ”Executive").\nWHEREAS, the Executive’s service as an officer and director of BNC Bancorp and the Bank is terminating on June 16, 2008,\nWHEREAS, the Executive possesses skills of a special, unique, and unusual character, which therefore have distinctive value,\nWHEREAS, the Executive is familiar with BNC Bancorp's and the Bank’s business, operations, and properties, and during the time the Executive has been employed by the Bank he has accumulated extensive banking experience and he\nhas established valuable business and client conmcts in the market areas served by BNC Bancorp and the Bank,\nWHEREAS, the Executive entered into an employment agreement with BNC Bancorp and the Bank providing for payment of severance benefits after termination of the Executive's employment, conditioned upon the Executive first\nentering into this Agreement, and\nWHEREAS, the Executive’s employment has terminated or terminates effective June 16, 2008, and severance benefits therefore will become payable under his employment agreement after execution of this Agreement.\nNow THEREFORE, in consideration of these premises, the mutual covenants contained herein, and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows.\nARTICLE 1\nAGREEMENT NOT To COMPETE\n1.1 Noncompetition. (a) Agreement not to compete. The Executive hereby agrees that until June 16, 2010 he shall not directly or indirectly, whether for his own account or for the account of any other person, firm, corporation, or other\nbusiness organization —\n(1) engage as an employee, officer, director, manager, salesperson, consultant, independent contractor, representative, or other agent in providing Banking Services (as defined below) on behalf of any other person, firm, corporation, or\nother business organization that is a competitor of the Bank or its Affiliates (as defined below) in Davidson County, any counties contiguous thereto, any counties in which the Bank or any of its Affiliates has an office, or any counties\nfrom which the Bank or any of its affiliates derives revenue that, in the sole judgement of the Bank, is significant,\n(2) provide Banking Services to any Client (as defined below),\n(3) make any smtement or mke any actions that, in the sole judgement of the Bank, interfere with the Bank' s or its Affiliates' business relationships with any Client, including but not limited to any statements that are harmful to the\nreputation of the Bank or any of its Affiliates or their standing in the communities they serve,\n(4) except on behalf of the Bank or its Affiliates as may be requested by the Bank, make conmct either directly or indirectly with any Client, nor shall the Executive otherwise induce or encourage any Client to enter into any business\nrelationship with any person, firm, corporation, or other business organization other than the Bank or its Affiliates relating to Banking Services or banking business of any type,\n(5) entice or encourage any person employed by or associated with the Bank or its Affiliates as an employee, officer, director, manager, salesperson, consultant, independent contiactor, represenmtive, or other agent to serve as an\nemployee, officer, director, manager, salesperson, consultant, independent contractor, representative, or other agent of any person, firm, corporation, or other business organization other than the Bank or its Affiliates, or\n(6) take any actions interfering with the Bank’s or its Affiliates' property rights in lists of clients, or otherwise diminish the value of such lists to the Bank or its Affiliates.\n—\n(b) Definition of Affiliate For purposes of this Agreement, the term "A ffiliate” means any entity, corporation, or other business organization controlled by the Bank, controlling the Bank, or under common control with the Bank, including\nbut not limited to any subsidiaries of the Bank, any company controlling the Bank, or any company under common control with the Bank.\n(c) Definition of Banking Services. For purposes of this Agreement, the term ”B anking Services" means remil or commercial banking business, and all other services customarily provided by banks or otherwise provided by the Bank or its\nAffiliates; provided, however that the term Banking Services specifically excludes asset and trust management, wealth management, and investment services. The Bank understands that the Executive intends after termination of his\nemployment with the Bank to engage in the business of providing asset and trust management, wealth management, and investment services and that the Executive may do so in markets in which the Bank conducts business and to\ncustomers that are or may be Clients of the Bank.\n(d) Definition of Client. For purposes of this Agreement the term "Client” means all persons, firms, corporations, entities, or business organizations who are or were customers or clients of the Bank or any of its Affiliates —\n(1) on the date of this Agreement,\n(2) on the date the Executive's termination from active service with the Bank becomes effective,\n(3) at any time during the two-year period before the Executive’s termination from active service with the Bank becomes effective, and\n(4) any persons who become clients of the Bank or any of its Affiliates hereafter who were identified by a representative of the Bank or its Affiliates, but only if those persons are identified as prospective clients in writing by the Bank to\nthe Executive when the Executive’s termination from active service becomes effective\n1.2 Period of time and scope. The Executive acknowledges and agrees that the duration and scope of the noncompetition provision set forth in section 1.1 are reasonable and necessary to protect the legitimate business interests of BNC\nBancorp and the Bank and that they do not interfere unduly with the Executive’s personal or economic freedoms The Executive acknowledges that his willingness to execute and comply with this Agreement was an essential condition to\nBNC Bancorp’s and the Bank’s willingness to enter into the separate employment agreement with the Executive. If a court of competent jurisdiction or a dispute resolution proceeding authorized hereunder and to which BNC Bancorp and\nthe Bank have agreed to be subject nevertheless holds that the duration or scope, including but not limited to geographic scope, of this Agreement is unreasonable, invalid, or unenforceable, the duration or scope shall be reduced or\nreformed to the extent necessary so that section 1.1 may be enforced by BNC Bancorp and the Bank during such period and for such scope as are held to be reasonable, valid, and enforceable.\n1.3 Undermndings. It is understood by and between the parties hereto that the Executive’s covenants in section 1.1 are an essential element of this Agreement and that, but for the agreement of the Executive to comply with such\ncovenants, BNC Bancorp and the Bank would not have entered into the Separation Agreement and Full and Final Release of Claims with the Executive. BNC Bancorp and the Bank and the Executive have independently consulted with or\nhave had the opportunity to independently consult with their respective counsel concerning the reasonableness and validity of such covenants.\nARTICLE 2\nCONFIDENTIALITY\n2.1 Nondisclosure The Executive shall not reveal to any person, firm, corporation, or other business organization any confidential information of any nature concerning the Bank or its Affiliates, their business, or anything connected\ntherewith. As used in this Article 2, the term "confidential information” means all of the Bank’s and its Affiliates’ confidential and proprietary information and trade secrets in existence on the date hereof or at any time during the term of\nthis Agreement, including but not limited to —\n(a) the whole or any portion or phase of any business plans, financial information, purchasing data, supplier data, accounting data, or other financial information,\n(b) the whole or any portion or phase of any research and development information, design procedures, algorithms, or processes, or other technical information,\n(c) the whole or any portion or phase of any marketing or sales information, sales records, customer lists or client lists, prices, sales projections, or other sales information, and\n(d) trade secrets, as defined from time to time by the laws of the State of North Carolina.\nNotwithsmnding the foregoing, confidential information excludes information that - as of the date hereof or at any time after the date hereof — is published or disseminated without obligation of confidence or that becomes a part of the\npublic domain (x) by or through action of the Bank orits Affiliates, and (y) otherwise than by or at the direction of the Executive. This section 2.1 does not prohibit disclosure required by an order of a court having jurisdiction or a\nsubpoena from an appropriate governmental agency.\n2.2 Return of materials. The Executive agrees to deliver or return to the Bank all written confidential information furnished by the Bank or its Affiliates or prepared by the Executive in connection with his services to the Bank. The\nExecutive shall retain no copies thereof after termination of this Agreement or termination of the Executive’s employment with the Bank.\n2.3 Injunctive relief. The Executive acknowledges that it is impossible to measure in money the damages that will accrue to BNC Bancorp and the Bank if the Executive fails to observe the obligations imposed on him by this Article 2.\nAccordingly, if BNC Bancorp or the Bank institutes an action to enforce the provisions hereof, the Executive hereby waives the claim or defense that an adequate remedy at law is available to BNC Bancorp or the Bank, and the Executive\nagrees not to urge in any such action the claim or defense that an adequate remedy at law exists\n2.4 Survival of common law protection. During and after the term of this Agreement, in addition to the protection thereof given by this Agreement the confidential information of the Bank and its Affiliates shall be entitled to all such\nprotections as may be available under applicable law and the Bank and its Affiliates may seek to enforce any of its rights with respect thereto.\n2.5 Creative work. The Executive agrees that all creative work and work product, including but not limited to all technology, business management tools, processes, software, patents, trademarks, and copyrights developed by the\nExecutive during the term of the employment agreement, regardless of when or where such work or work product was produced, constitutes work made for hire, all rights of which are owned by BNC Bancorp and the Bank. The Executive\nhereby assigns to BNC Bancorp and to the Bank all rights, title, and interest, whether copyright, trade secret, trademark, patent, or otherwise, in all such work or work product, regardless of whether the same is subject to protection by\npatent, trademark, or copyright laws.\n2.6 Rights and obligations survive termination of this Agreement. The rights and obligations set forth in this Article 2 shall survive termination of this Agreement.\nARTICLE 3\nSPECIFIC PERFORMANCE\nThe Executive's covenants contained in Articles 1 and 2 shall survive termination of the Executive’s employment with the Bank for any reason, and shall be enforceable after such termination. Without intending to limit the remedies\navailable to BNC Bancorp and the Bank, the Executive agrees that damages at law are an insufficient remedy for violation by the Executive of his covenants contained in this Agreement. Accordingly, the Executive hereby agrees that\neither or both of BNC Bancorp or the Bank may apply for and is entitled to injunctive relief in any court of competent jurisdiction to restrain the breach or threatened breach of, or otherwise to specifically enforce, any of the covenants of\nsuch Articles, in each case without proof of actual damages, in addition to any other remedies that may be available under applicable law. The Executive hereby waives the claim or defense that an adequate remedy at law is available to\nBNC Bancorp or the Bank, and the Executive agrees not to urge in any action or proceeding the claim or defense that an adequate remedy at law exists.\nWithout limiting the generality of the foregoing, without limiting the remedies available to BNC Bancorp or the Bank for violation of this Agreement, and without constituting an election of remedies, if the Executive violates any of the\nterms of Articles 1 or 2 he shall forfeit on his own behalf and that of his beneficiary(ies) any rights to and interest in any severance or other benefits under the Separation Agreement and Full and Final Release of Claims and the Separation\nAgreement and Full and Final Release of Claims shall thereafter be null, void, and of no further force or effect.\nARTICLE 4\nMISCELLANEOUS\n4.1 Successors and assigns. Without written consent of the other party, neither BNC Bancorp and the Bank nor the Executive shall assign, transfer, or delegate this Agreement or any rights or obligations under this Agreement except as\nexpressly provided herein. However, any merger or consolidation of the Bank (or any direct orindirect parent thereof) or any sale or transfer of all or substantially all of the stock or assets of the Bank (or any direct or indirect parent\nthereof) shall be considered an assignment expressly agreed to and consistent with the terms of this Agreement and shall not be considered a violation of this Agreement.\nThis Agreement shall be binding upon the parties hereto and their heirs, personal representatives, successors, and permitted assigns. This Agreement shall inure to the benefit of and be enforceable by the Executive’s personal orlegal\nrepresentatives, executors, administrators, successors, heirs, distiibutees, and legatees.\n4.2 Governing law. This Agreement shall be construed under and governed by the internal laws of the State of North Carolina, without giving effect to any choice of law or conflict of law provision or rule (whether of the Smte of North\nCarolina or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of North Carolina.\n4.3 Entire agreement. This Agreement, as well as the Separation Agreement of even date and this documents referenced therein at Section 7.3(a), set forth the entire agreement of the parties with respect to the subject matter and any oral\nor written statements, representations, agreements, or understandings not set forth in this Agreement that were made or entered into prior to or contemporaneously with the execution of this Agreement are hereby rescinded, revoked, and\nrendered null and void by the parties.\n4.4 Notices Any notice required or permitted under this Agreement shall be deemed to have been effectively made or given if in writing and personally delivered, delivered by mail properly addressed in a sealed envelope, postage prepaid\nby certified or registered mail, delivered by a reputable overnight delivery service, or sent by facsimile. Unless otherwise changed by notice, notice shall be properly addressed to the Executive if addressed to 2201 Rhododendron Court,\nCharlotte, North Carolina 28205, and properly addressed to BNC Bancorp or the Bank if addressed to BNC Bancorp, 831 Julian Avenue, Thomasville, North Carolina 27361-1148, Attention: Corporate Secremry.\n4.5 Severability. In the case of conflict between any provision of this Agreement and any governing statute, law, regulation, or judicial precedent, the latter shall prevail, but the affected provisions of this Agreement shall be curtailed and\nlimited solely to the extent necessary to bring them within the requirements of law. If any provision of this Agreement is held by a court of competent jurisdiction or in a dispute resolution proceeding to which BNC Bancorp and the Bank\nhave agreed to be subject to be indefinite, invalid, void, voidable, or otherwise unenforceable, the remainder of this Agreement shall continue in full force and effect unless that would clearly be contrary to the intentions of the parties or\nwould result in an injustice.\n4.6 Captions and counterparts. The captions in this Agreement exist solely for convenience. The captions do not define, limit, or describe the scope or intent of this Agreement. This Agreement may be executed in several counterparts,\neach of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.\n4.7 Amendment and waiver. This Agreement may not be amended, released, discharged, abandoned, changed, or modified except by an instrument in writing signed by each of the parties hereto. The failure of any party hereto to enforce\nat any time any of the provisions of this Agreement shall not be construed to be a waiver of any such provision, nor affect the validity of this Agreement or any part thereof or the right of any party to enforce each and every provision. No\nwaiver or any breach of this Agreement shall be held to be a waiver of any other or subsequent breach.\nIN WITNESS WHEREDF, the pam'es have caused this Agreement to be duly executed as of the date fiIst mitten above.\nEXECUTIVE BNC BANEORP\nls/ Ralph N‘ Strayhom 111 By:\nW1) ‘ y om\nI13:\nBANK OF NORTH CAROLINA\nBy:\n113:\n/s/ WI Swope Montgomer, Jr.\nPIesident and CEO\nls/ WI Swope Montgomer, Jr.\nPIesident and CEO	Exhibit B\nNONCOMPETITION AGREEMENT\nThis NONCOMPETITION AGREEMENT (this 'Agreement") is entered into as of this 16th day of June, 2008 by and among BNC Bancorp, a North Carolina corporation Bank of North Carolina, a North Carolina-chartered bank and wholly\nowned subsidiary of BNC Bancorp (the "Bank") and Ralph N. Strayhom III (the "Executive").\nWHEREAS, the Executive's service as an officer and director of BNC Bancorp and the Bank is terminating on June 16, 2008,\nWHEREAS the Executive possesses skills of a special, unique, and unusual character, which therefore have distinctive value,\nWHEREAS, the Executive is familiar with BNC Bancorp's and the Bank's business operations, and properties, and during the time the Executive has been employed by the Bank he has accumulated extensive banking experience and he\nhas established valuable business and client contacts in the market areas served by BNC Bancorp and the Bank,\nWHEREAS, the Executive entered into an employment agreement with BNC Bancorp and the Bank providing for payment of severance benefits after termination of the Executive's employment, conditioned upon the Executive first\nentering into this Agreement, and\nWHEREAS, the Executive's employment has terminated or terminates effective June 16, 2008, and severance benefits therefore will become payable under his employment agreement after execution of this Agreement.\nNow THEREFORE in consideration of these premises the mutual covenants contained herein, and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows.\nARTICLE 1\nAGREEMENT NoT TO COMPETE\n1.1\nNoncompetition (a) Agreement not to compete The Executive hereby agrees that unti June 16, 2010 he shall not directly or indirectly, whether for his own account or for the account of any other person, firm, corporation, or other\nbusiness organization\n(1) engage as an employee, officer, director, manager, salesperson, consultant, independent contractor, representative, or other agent in providing Banking Services (as defined below) on behalf of any other person, firm, corporation, or\nother business organization that is a competitor of the Bank or its Affiliates (as defined below) in Davidson County any counties contiguous thereto, any counties in which the Bank or any of its Affiliates has an office, or any counties\nfrom which the Bank or any of its affiliates derives revenue that, in the sole judgement of the Bank, is significant\n(2) provide Banking Services to any Client (as defined below),\n(3) make any statement or take any actions that in the sole judgement of the Bank, interfere with the Bank's or its Affiliates' business relationships with any Client, including but not limited to any statements that are harmful to the\nreputation of the Bank or any of its Affiliates or their standing in the communities they serve,\n(4) except on behalf of the Bank or its Affiliates as may be requested by the Bank, make contact either directly or indirectly with any Client, nor shall the Executive otherwise induce or encourage any Client to enter into any business\nrelationship with any person, firm, corporation, or other business organization other than the Bank or its Affiliates relating to Banking Services or banking business of any type\n(5) entice or encourage any person employed by or associated with the Bank or its Affiliates as an employee, officer, director, manager, salesperson, consultant, independent contractor, representative, or other agent to serve as an\nemployee, officer, director, manager, salesperson, consultant independent contractor, representative, or other agent of any person firm, corporation, or other business organization other than the Bank or its Affiliates, or\n(6) take any actions interfering with the Bank's or its Affiliates' property rights in lists of clients, or otherwise diminish the value of such lists to the Bank or its Affiliates.\n(b)\nDefinition of Affiliate. For purposes of this Agreement, the term "Affiliate" means any entity, corporation, or other business organization controlled by the Bank, controlling the Bank, or under common control with the Bank including\nbut not limited to any subsidiaries of the Bank any company controlling the Bank, or any company under common control with the Bank\n(c) Definition of Banking Services. For purposes of this Agreement, the term "Banking Services" means retail or commercial banking business and all other services customarily provided by banks or otherwise provided by the Bank\nor\nits\nAffiliates; provided, however that the term Banking Services specifically excludes asset and trust management, wealth management, and investment services. The Bank understands that the Executive intends after termination of his\nemployment with the Bank to engage in the business of providing asset and trust management, wealth management, and investment services and that the Executive may do so in markets in which the Bank conducts business and\nto\ncustomers that are or may be Clients of the Bank.\n(d)\nDefinition of Client. For purposes of this Agreement the term "Client" means all persons, firs, corporations, entities, or business organizations who are or were customers or clients of the Bank or any of its Affiliates\n(1) on the date of this Agreement,\n(2) on the date the Executive's termination from active service with the Bank becomes effective,\n(3) at any time during the two year period before the Executive's termination from active service with the Bank becomes effective, and\n(4) any persons who become clients of the Bank or any of its Affiliates hereafter who were identified by a representative of the Bank or its Affiliates, but only if those persons are identified as prospective clients in writing by the Bank to\nthe Executive when the Executive's termination from active service becomes effective.\n1.2 Period of time and scope The Executive acknowledges and agrees that the duration and scope of the noncompetition provision set forth in section 1.1 are reasonable and necessary to protec the legitimate business interests of\nBNC\nBancorp and the Bank and that they do not interfere unduly with the Executive's personal or economic freedoms. The Executive acknowledges that his willingness to execute and comply with this Agreement was an essential condition to\nBNC Bancorp's and the Bank's willingness to enter into the separate employment agreement with the Executive. If a court of competent jurisdiction or a dispute resolution proceeding authorized hereunder and to which BNC Bancorp and\nthe Bank have agreed to be subject nevertheless holds that the duration or scope, including but not limited to geographic scope, of this Agreement is unreasonable, invalid, or unenforceable, the duration or scope shall be reduced or\nreformed to the extent necessary so that section 1.1 may be enforced by BNC Bancorp and the Bank during such period and for such scope as are held to be reasonable, valid, and enforceable.\n1.3 Understandings. It is understood by and between the parties hereto that the Executive's covenants in section 1.1 are an essential element of this Agreement and that, but for the agreement of the Executive to comply with such\ncovenants, BNC Bancorp and the Bank would not have entered into the Separation A greement and Full and Final Release of Claims with the Executive. BNC Bancorp and the Bank and the Executive have independently consulted with or\nhave had the opportunity to independently consult with their respective counsel concerning the reasonableness and validity of such covenants.\nARTICLE 2\nCONFIDENTIALITY\n2.1 Nondisclosure The Executive shall not reveal to any person, firm, corporation, or other business organization any confidentia information of any nature concerning the Bank or its Affiliates, their business, or anything connected\ntherewith. As used in this Article 2, the term "confidential information" means all of the Bank's and its ffiliates' confidential and proprietary information and trade secrets in existence on the date hereof or at any time during the term of\nthis Agreement, including but not limited to\n(a) the whole or any portion or phase of any business plans, financial inforation, purchasing data supplier data, accounting data, or other financial information\n(b) the whole or any portion or phase of any research and development information, design procedures algorithms, or processes, or other technical information,\n(c) the whole or any portion or phase of any marketing or sales information, sales records, customer lists or client lists, prices, sales projections, or other sales information and\n(d) trade secrets, as defined from time to time by the laws of the State of North Carolina.\nNotwithstanding the foregoing, confidential information excludes information that as of the date hereof or at any time after the date hereof is published or disseminated without obligation of confidence or that becomes a part of the\npublic domain (x) by or through action of the Bank or its Affiliates, and (y) otherwise than by or at the direction of the Executive. This section 2.1 does not prohibit disclosure required by an order of a court having jurisdiction or\na\nsubpoena from an appropriate governmental agency\n2.2\nReturn of materials. The Executive agrees to deliver or return to the Bank all written confidential information fumished by the Bank or its Affiliates or prepared by the Executive in connection with his services to the Bank. The\nExecutive shall retain no copies thereof after termination of this Agreement or termination of the Executive's employment with the Bank.\n2.3 Injunctive relief The Executive acknowledges that it is impossible to measure in money the damages that will accrue to BNC Bancorp and the Bank if the Executive fails to observe the obligations imposed on him by this Article 2.\nAccordingly, if BNC Bancorp or the Bank institutes an action to enforce the provisions hereof, the Executive hereby waives the claim or defense that an adequate remedy at law is available to BNC Bancorp or the Bank, and the Executive\nagrees not to urge in any such action the claim or defense that an adequate remedy at law exists.\n2.4\nSurvival of common law protection. During and after the term of this Agreement, in addition to the protection thereof given by this Agreement the confidential information of the Bank and its Affiliates shall be entitled to all such\nprotections as may be available under applicable law and the Bank and its Affiliates may seek to enforce any of its rights with respect thereto.\n2.5 Creative work The Executive agrees that all creative work and work product, including but not limited to all technology, business management tools, processes, software, patents, trademarks, and copyrights developed by\nthe\nExecutive during the term of the employment agreement, regardless of when or where such work or work product was produced, constitutes work made for hire, all rights of which are owned by BNC Bancorp and the Bank. The Executive\nhereby assigns to BNC Bancorp and to the Bank all rights, title, and interest, whether copyright, trade secret trademark, patent, or otherwise, in all such work or work product, regardless of whether the same is subject to protection\nby\npatent, trademark, or copyright laws.\n2.6 Rights and obligations survive termination of this Agreement. The rights and obligations set forth in this Article 2 shall survive termination of this Agreement.\nARTICLE 3\nSPECIFIC PERFORMANCE\nThe Executive's covenants contained in Articles 1 and 2 shall survive termination of the Executive's employment with the Bank for any reason, and shall be enforceable after such termination. Without intending to limit the remedies\navailable to BNC Bancorp and the Bank, the Executive agrees that damages at law are an insufficient remedy for violation by the Executive of his covenants contained in this Agreement. Accordingly, the Executive hereby agrees that\neither or both of BNC Bancorp or the Bank may apply for and is entitled to injunctive relief in any court of competent jurisdiction to restrain the breach or threatened breach of, or otherwise to specifically enforce, any of the covenants of\nsuch Articles, in each case without proof of actual damages, in addition to any other remedies that may be available under applicable law. The Executive hereby waives the claim or defense that an adequate remedy at law is available to\nBNC\nBancorp or the Bank, and the Executive agrees not to urge in any action or proceeding the claim or defense that an adequate remedy at law exists.\nWithout limiting the generality of the foregoing, without limiting the remedies available to BNC Bancorp or the Bank for violation of this Agreement, and without constituting an election of remedies, if the Executive violates any of the\nterms of Articles 1 or 2 he shall forfei on his own behalf and that of his beneficiary(ies) any rights to and interest in any severance or other benefits under the Separation Agreement and Full and Final Release of Claims and the Separation\nAgreement and Full and Final Release of Claims shal thereafter be null, void, and of no further force or effect\nARTICLE 4\nMISCELLANEOUS\n4.1 Successors and assigns Without written consent of the other party, neither BNC Bancorp and the Bank nor the Executive shall assign transfer, or delegate this Agreement or any rights or obligations under this Agreement except as\nexpressly provided herein. However, any merger or consolidation of the Bank (or any direc or indirect parent thereof) or any sale or transfer of all or substantially all of the stock or assets of the Bank (or any direct or indirect parent\nthereof) shall be considered an assignment expressly agreed to and consistent with the terms of this Agreement and shall not be considered a violation of this A greement.\nThis Agreement shal be binding upon the parties hereto and their heirs, personal representatives, successors, and permitted assigns. This Agreement shall inure to the benefit of and be enforceable by the Executive's personal or legal\nrepresentatives, executors administrators, successors, heirs distributees, and legatees.\n4.2 Governing law. This greement shall be construed under and governed by the internal laws of the State of North Carolina without giving effect to any choice of law or conflict of law provision or rule (whether of the State of North\nCarolina or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of North Carolina.\n4.3 Entire agreement. This Agreement as well as the Separation greement of even date and this documents referenced therein at Section 7.3(a), set forth the entire agreement of the parties with respect to the subject matter and any ora\nor written statements, representations, agreements, or understandings not set forth in this Agreement that were made or entered into prior to or contemporaneously with the execution of this Agreement are hereby rescinded, revoked, and\nrendered null and void by the parties.\n4.4 Notices. Any notice required or permitted under this Agreement shall be deemed to have been effectively made or given if in writing and personally delivered delivered by mail properly addressed in a sealed envelope, postage prepaid\nby certified or registered mail, delivered by a reputable ovemight delivery service, or sent by facsimile. Unless otherwise changed by notice, notice shall be properly addressed to the Executive if addressed to 2201 Rhododendron Court,\nCharlotte, North Carolina 28205, and properly addressed to BNC Bancorp or the Bank if addressed to BNC Bancorp, 831 Julian A venue, Thomasville, North Carolina 27361-1148, A ttention: Corporate Secretary.\n4.5 Severability. In the case of conflict between any provision of this Agreement and any governing statute, law, regulation, or judicial precedent, the latter shall prevail, but the affected provisions of this Agreement shall be curtailed and\nlimited solely to the extent necessary to bring them within the requirements of law. If any provision of this Agreement is held by a court of competent jurisdiction or in a dispute resolution proceeding to which BNC Bancorp and the Bank\nhave agreed to be subject to be indefinite, invalid, void, voidable, or otherwise unenforceable, the remainder of this Agreement shall continue in full force and effect unless that would clearly be contrary to the intentions of the parties or\nwould resul in an injustice.\n4.6 Captions and counterparts The captions in this A greement exist solely for convenience. The captions do not define, limit, or describe the scope or intent of this Agreement. This Agreement may be executed in several counterparts,\neach of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.\n4.7 Amendment and waiver This Agreement may no be amended, released discharged, abandoned, changed, or modified except by an instrument in writing signed by each of the parties hereto. The failure of any party hereto to enforce\nat any time any of the provisions of this Agreement shall not be construed to be a waiver of any such provision, nor affect the validity of this greement or any part thereof or the right of any party to enforce each and every provision\nNo\nwaiver or any breach of this Agreement shall be held to be a waiver of any other or subsequent breach.\nIN WITNess WHEREOF, the parties have caused this Agreement to be duly executed as of the date first written above.\nExECUTIve\nBNC BANCORP\n/s/ Ralph N. Strayhom III\nBy:\nIs/ W Swope Montgomery, Jr.\nKalph N. Strayhor TII\nIts:\nPresident and CEO\nBANK OF NORTH CAROLINA\nBy:\n/s/ W. Swope Montgomery, Jr.\nIts:\nPresident and CEO	Exhibit B\nNONCOMPETITION AGREEMENT\nThis NONCOMPETITION AGREEMENT (this “Agreement”) is entered into as of this 16th day of June, 2008, by and among BNC Bancorp, a North Carolina corporation, Bank of North Carolina, a North Carolina-chartered bank and wholly\nowned subsidiary of BNC Bancorp (the “Bank”), and Ralph N. Strayhorn III (the “Executive”).\nWHEREAS, the Executive’s service as an officer and director of BNC Bancorp and the Bank is terminating on June 16, 2008,\nWHEREAS, the Executive possesses skills of a special, unique, and unusual character, which therefore have distinctive value,\nWHEREAS, the Executive is familiar with BNC Bancorp’s and the Bank’s business, operations, and properties, and during the time the Executive has been employed by the Bank he has accumulated extensive banking experience and he\nhas established valuable business and client contacts in the market areas served by BNC Bancorp and the Bank,\nWHEREAS, the Executive entered into an employment agreement with BNC Bancorp and the Bank providing for payment of severance benefits after termination of the Executive’s employment, conditioned upon the Executive first\nentering into this Agreement, and\nWHEREAS, the Executive’s employment has terminated or terminates effective June 16, 2008, and severance benefits therefore will become payable under his employment agreement after execution of this Agreement.\nNOW THEREFORE, in consideration of these premises, the mutual covenants contained herein, and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows.\nARTICLE 1\nAGREEMENT NOT TO COMPETE\n1.1 Noncompetition. (a) Agreement not to compete. The Executive hereby agrees that until June 16, 2010 he shall not directly or indirectly, whether for his own account or for the account of any other person, firm, corporation, or other\nbusiness organization –\n(1) engage as an employee, officer, director, manager, salesperson, consultant, independent contractor, representative, or other agent in providing Banking Services (as defined below) on behalf of any other person, firm, corporation, or\nother business organization that is a competitor of the Bank or its Affiliates (as defined below) in Davidson County, any counties contiguous thereto, any counties in which the Bank or any of its Affiliates has an office, or any counties\nfrom which the Bank or any of its affiliates derives revenue that, in the sole judgement of the Bank, is significant,\n(2) provide Banking Services to any Client (as defined below),\n(3) make any statement or take any actions that, in the sole judgement of the Bank, interfere with the Bank’s or its Affiliates’ business relationships with any Client, including but not limited to any statements that are harmful to the\nreputation of the Bank or any of its Affiliates or their standing in the communities they serve,\n(4) except on behalf of the Bank or its Affiliates as may be requested by the Bank, make contact either directly or indirectly with any Client, nor shall the Executive otherwise induce or encourage any Client to enter into any business\nrelationship with any person, firm, corporation, or other business organization other than the Bank or its Affiliates relating to Banking Services or banking business of any type,\n(5) entice or encourage any person employed by or associated with the Bank or its Affiliates as an employee, officer, director, manager, salesperson, consultant, independent contractor, representative, or other agent to serve as an\nemployee, officer, director, manager, salesperson, consultant, independent contractor, representative, or other agent of any person, firm, corporation, or other business organization other than the Bank or its Affiliates, or\n(6) take any actions interfering with the Bank’s or its Affiliates’ property rights in lists of clients, or otherwise diminish the value of such lists to the Bank or its Affiliates.\n(b) Definition of Affiliate. For purposes of this Agreement, the term “Affiliate” means any entity, corporation, or other business organization controlled by the Bank, controlling the Bank, or under common control with the Bank, including\nbut not limited to any subsidiaries of the Bank, any company controlling the Bank, or any company under common control with the Bank.\n(c) Definition of Banking Services. For purposes of this Agreement, the term “Banking Services” means retail or commercial banking business, and all other services customarily provided by banks or otherwise provided by the Bank or its\nAffiliates; provided, however that the term Banking Services specifically excludes asset and trust management, wealth management, and investment services. The Bank understands that the Executive intends after termination of his\nemployment with the Bank to engage in the business of providing asset and trust management, wealth management, and investment services and that the Executive may do so in markets in which the Bank conducts business and to\ncustomers that are or may be Clients of the Bank.\n(d) Definition of Client. For purposes of this Agreement the term “Client” means all persons, firms, corporations, entities, or business organizations who are or were customers or clients of the Bank or any of its Affiliates –\n(1) on the date of this Agreement,\n(2) on the date the Executive’s termination from active service with the Bank becomes effective,\n(3) at any time during the two-year period before the Executive’s termination from active service with the Bank becomes effective, and\n(4) any persons who become clients of the Bank or any of its Affiliates hereafter who were identified by a representative of the Bank or its Affiliates, but only if those persons are identified as prospective clients in writing by the Bank to\nthe Executive when the Executive’s termination from active service becomes effective.\n1.2 Period of time and scope. The Executive acknowledges and agrees that the duration and scope of the noncompetition provision set forth in section 1.1 are reasonable and necessary to protect the legitimate business interests of BNC\nBancorp and the Bank and that they do not interfere unduly with the Executive’s personal or economic freedoms. The Executive acknowledges that his willingness to execute and comply with this Agreement was an essential condition to\nBNC Bancorp’s and the Bank’s willingness to enter into the separate employment agreement with the Executive. If a court of competent jurisdiction or a dispute resolution proceeding authorized hereunder and to which BNC Bancorp and\nthe Bank have agreed to be subject nevertheless holds that the duration or scope, including but not limited to geographic scope, of this Agreement is unreasonable, invalid, or unenforceable, the duration or scope shall be reduced or\nreformed to the extent necessary so that section 1.1 may be enforced by BNC Bancorp and the Bank during such period and for such scope as are held to be reasonable, valid, and enforceable.\n1.3 Understandings. It is understood by and between the parties hereto that the Executive’s covenants in section 1.1 are an essential element of this Agreement and that, but for the agreement of the Executive to comply with such\ncovenants, BNC Bancorp and the Bank would not have entered into the Separation Agreement and Full and Final Release of Claims with the Executive. BNC Bancorp and the Bank and the Executive have independently consulted with or\nhave had the opportunity to independently consult with their respective counsel concerning the reasonableness and validity of such covenants.\nARTICLE 2\nCONFIDENTIALITY\n2.1 Nondisclosure. The Executive shall not reveal to any person, firm, corporation, or other business organization any confidential information of any nature concerning the Bank or its Affiliates, their business, or anything connected\ntherewith. As used in this Article 2, the term “confidential information” means all of the Bank’s and its Affiliates’ confidential and proprietary information and trade secrets in existence on the date hereof or at any time during the term of\nthis Agreement, including but not limited to –\n(a) the whole or any portion or phase of any business plans, financial information, purchasing data, supplier data, accounting data, or other financial information,\n(b) the whole or any portion or phase of any research and development information, design procedures, algorithms, or processes, or other technical information,\n(c) the whole or any portion or phase of any marketing or sales information, sales records, customer lists or client lists, prices, sales projections, or other sales information, and\n(d) trade secrets, as defined from time to time by the laws of the State of North Carolina.\nNotwithstanding the foregoing, confidential information excludes information that – as of the date hereof or at any time after the date hereof – is published or disseminated without obligation of confidence or that becomes a part of the\npublic domain (x) by or through action of the Bank or its Affiliates, and (y) otherwise than by or at the direction of the Executive. This section 2.1 does not prohibit disclosure required by an order of a court having jurisdiction or a\nsubpoena from an appropriate governmental agency.\n2.2 Return of materials. The Executive agrees to deliver or return to the Bank all written confidential information furnished by the Bank or its Affiliates or prepared by the Executive in connection with his services to the Bank. The\nExecutive shall retain no copies thereof after termination of this Agreement or termination of the Executive’s employment with the Bank.\n2.3 Injunctive relief. The Executive acknowledges that it is impossible to measure in money the damages that will accrue to BNC Bancorp and the Bank if the Executive fails to observe the obligations imposed on him by this Article 2.\nAccordingly, if BNC Bancorp or the Bank institutes an action to enforce the provisions hereof, the Executive hereby waives the claim or defense that an adequate remedy at law is available to BNC Bancorp or the Bank, and the Executive\nagrees not to urge in any such action the claim or defense that an adequate remedy at law exists.\n2.4 Survival of common law protection. During and after the term of this Agreement, in addition to the protection thereof given by this Agreement the confidential information of the Bank and its Affiliates shall be entitled to all such\nprotections as may be available under applicable law and the Bank and its Affiliates may seek to enforce any of its rights with respect thereto.\n2.5 Creative work. The Executive agrees that all creative work and work product, including but not limited to all technology, business management tools, processes, software, patents, trademarks, and copyrights developed by the\nExecutive during the term of the employment agreement, regardless of when or where such work or work product was produced, constitutes work made for hire, all rights of which are owned by BNC Bancorp and the Bank. The Executive\nhereby assigns to BNC Bancorp and to the Bank all rights, title, and interest, whether copyright, trade secret, trademark, patent, or otherwise, in all such work or work product, regardless of whether the same is subject to protection by\npatent, trademark, or copyright laws.\n2.6 Rights and obligations survive termination of this Agreement. The rights and obligations set forth in this Article 2 shall survive termination of this Agreement.\nARTICLE 3\nSPECIFIC PERFORMANCE\nThe Executive’s covenants contained in Articles 1 and 2 shall survive termination of the Executive’s employment with the Bank for any reason, and shall be enforceable after such termination. Without intending to limit the remedies\navailable to BNC Bancorp and the Bank, the Executive agrees that damages at law are an insufficient remedy for violation by the Executive of his covenants contained in this Agreement. Accordingly, the Executive hereby agrees that\neither or both of BNC Bancorp or the Bank may apply for and is entitled to injunctive relief in any court of competent jurisdiction to restrain the breach or threatened breach of, or otherwise to specifically enforce, any of the covenants of\nsuch Articles, in each case without proof of actual damages, in addition to any other remedies that may be available under applicable law. The Executive hereby waives the claim or defense that an adequate remedy at law is available to\nBNC Bancorp or the Bank, and the Executive agrees not to urge in any action or proceeding the claim or defense that an adequate remedy at law exists.\nWithout limiting the generality of the foregoing, without limiting the remedies available to BNC Bancorp or the Bank for violation of this Agreement, and without constituting an election of remedies, if the Executive violates any of the\nterms of Articles 1 or 2 he shall forfeit on his own behalf and that of his beneficiary(ies) any rights to and interest in any severance or other benefits under the Separation Agreement and Full and Final Release of Claims and the Separation\nAgreement and Full and Final Release of Claims shall thereafter be null, void, and of no further force or effect.\nARTICLE 4\nMISCELLANEOUS\n4.1 Successors and assigns. Without written consent of the other party, neither BNC Bancorp and the Bank nor the Executive shall assign, transfer, or delegate this Agreement or any rights or obligations under this Agreement except as\nexpressly provided herein. However, any merger or consolidation of the Bank (or any direct or indirect parent thereof) or any sale or transfer of all or substantially all of the stock or assets of the Bank (or any direct or indirect parent\nthereof) shall be considered an assignment expressly agreed to and consistent with the terms of this Agreement and shall not be considered a violation of this Agreement.\nThis Agreement shall be binding upon the parties hereto and their heirs, personal representatives, successors, and permitted assigns. This Agreement shall inure to the benefit of and be enforceable by the Executive’s personal or legal\nrepresentatives, executors, administrators, successors, heirs, distributees, and legatees.\n4.2 Governing law. This Agreement shall be construed under and governed by the internal laws of the State of North Carolina, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of North\nCarolina or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of North Carolina.\n4.3 Entire agreement. This Agreement, as well as the Separation Agreement of even date and this documents referenced therein at Section 7.3(a), set forth the entire agreement of the parties with respect to the subject matter and any oral\nor written statements, representations, agreements, or understandings not set forth in this Agreement that were made or entered into prior to or contemporaneously with the execution of this Agreement are hereby rescinded, revoked, and\nrendered null and void by the parties.\n4.4 Notices. Any notice required or permitted under this Agreement shall be deemed to have been effectively made or given if in writing and personally delivered, delivered by mail properly addressed in a sealed envelope, postage prepaid\nby certified or registered mail, delivered by a reputable overnight delivery service, or sent by facsimile. Unless otherwise changed by notice, notice shall be properly addressed to the Executive if addressed to 2201 Rhododendron Court,\nCharlotte, North Carolina 28205, and properly addressed to BNC Bancorp or the Bank if addressed to BNC Bancorp, 831 Julian Avenue, Thomasville, North Carolina 27361-1148, Attention: Corporate Secretary.\n4.5 Severability. In the case of conflict between any provision of this Agreement and any governing statute, law, regulation, or judicial precedent, the latter shall prevail, but the affected provisions of this Agreement shall be curtailed and\nlimited solely to the extent necessary to bring them within the requirements of law. If any provision of this Agreement is held by a court of competent jurisdiction or in a dispute resolution proceeding to which BNC Bancorp and the Bank\nhave agreed to be subject to be indefinite, invalid, void, voidable, or otherwise unenforceable, the remainder of this Agreement shall continue in full force and effect unless that would clearly be contrary to the intentions of the parties or\nwould result in an injustice.\n4.6 Captions and counterparts. The captions in this Agreement exist solely for convenience. The captions do not define, limit, or describe the scope or intent of this Agreement. This Agreement may be executed in several counterparts,\neach of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.\n4.7 Amendment and waiver. This Agreement may not be amended, released, discharged, abandoned, changed, or modified except by an instrument in writing signed by each of the parties hereto. The failure of any party hereto to enforce\nat any time any of the provisions of this Agreement shall not be construed to be a waiver of any such provision, nor affect the validity of this Agreement or any part thereof or the right of any party to enforce each and every provision. No\nwaiver or any breach of this Agreement shall be held to be a waiver of any other or subsequent breach.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first written above.\nEXECUTIVE\nBNC BANCORP\n/s/ Ralph N. Strayhorn III\nBy:\n/s/ W. Swope Montgomery, Jr.\nRalph N. Strayhorn III\nIts:\nPresident and CEO\nBANK OF NORTH CAROLINA\nBy:\n/s/ W. Swope Montgomery, Jr.\nIts:\nPresident and CEO
d004bf3b592014a54cea588a24257068.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 11 dex99d3.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (d)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (the “Agreement”) is made as of March 12, 2008 (the “Effective Date”) by and between Kikkoman\nCorporation (“Kikkoman”), a Japanese corporation and Allergy Research Group, Inc. (“Company”), a Florida corporation.\nRecitals\nA. The parties wish to explore a possible business opportunity of mutual interest (“Business Relationship”) which may involve the disclosure\nby each party (the “Disclosing Party”) to the other party (the “Receiving Party”) of confidential and proprietary information regarding product\ninformation, technical data and other information which is owned by the Disclosing Party, its affiliates or third parties to which the Disclosing Party\nhas obligations regarding the protection of such information.\nB. As a condition to each Disclosing Party’s release of such confidential and proprietary information, the parties wish to enter into this\nAgreement.\nAgreement\nNOW, THEREFORE, in consideration of the mutual promises herein, the parties agree as follows:\n1. Confidential Information. For purposes of this Agreement, “Confidential Information” means all nonpublic information concerning or\nowned by Disclosing Party including, but not limited to, all tangible, intangible, visual, electronic, present or future information such as but not\nlimited to: (a) all intellectual property, including but not limited to patents and patent applications, and trade secrets; (b) financial information or\npersonnel matters relating to products, employees, investors or business; (c) technical information, including research, procedures, processes,\nspecifications, designs, development, data and know-how; (d) business information, including operations, planning, marketing interests, products\n(including product formulations and test data), and client and distributor lists; (e) the terms of any agreement to which Disclosing Party is a party;\n(f) discussions, negotiations or proposals related to agreements; and (g) or any other item of Confidential Information, including but not limited to all\nwritings, illustrations, photographs or other information which Disclosing Party deems to be proprietary or confidential. Confidential Information\nincludes all notes, analyses, compilations, studies, interpretations or other materials prepared by the Disclosing Party or its representatives to the\nextent such materials contain or are based on the Confidential Information furnished to the Receiving Party pursuant to this Agreement. All such\nConfidential Information shall be subject to the terms of this Agreement whether marked as “Confidential” or not and whether disclosed orally,\nelectronically, in writing or other media.\n2. Exclusions. Notwithstanding the foregoing, Confidential Information shall not include any information, however designated, which the\nReceiving Party can show (a) is or has become generally available in the public without breach of this Agreement by the Receiving Party,\n(b) became known to the Receiving Party prior to disclosure to the Receiving Party by the Disclosing Party, (c) was received from a third party\nwithout breach of any nondisclosure obligations to the Disclosing Party or otherwise in violation of the Disclosing Party’s rights, or (d) was\ndeveloped by the Receiving Party independently of any Confidential Information received from the Disclosing Party.\n3. Obligations Regarding Confidential Information. The Receiving Party (a) shall restrict disclosure of Confidential Information solely to\nemployees or consultants on a need to know basis provided such employees and/or consultants have executed appropriate written agreements with\nthe Receiving Party to enable Receiving Party to comply with all provisions of this Agreement, (b) shall protect the Confidential Information with at\nleast the same degree of care and confidentiality as it affords its own confidential information, at all times exercising at least a reasonable degree of\ncare in such protection, and (c) shall not use any Confidential Information in any manner except in furtherance of Receiving Party’s business\nrelationship with Disclosing party, or as otherwise agreed by the Disclosing Party in writing. In addition, with respect to any product or formulation\ndelivered to the Receiving Party by the Disclosing Party, the Receiving Party shall not reverse engineer, dissect, disassemble, decompile or otherwise\nanalyze the physical or chemical construction of any such Confidential Information except as\n1\nnecessary to the evaluation of the Business Relationship. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information\npursuant to an order of a court or governmental agency as so required by such order, provided that the Receiving Party shall first notify the\nDisclosing Party of such order and afford the Disclosing Party the opportunity to seek a protective order relating to such disclosure. The Receiving\nParty agrees to notify the Disclosing Party immediately if it learns of any use or disclosure of any Disclosing Party Confidential Information in\nviolation of the terms of this Agreement. With respect to any material nonpublic information of any Disclosing Party subject to regulation by the\nU.S . Securities & Exchange Commission (“SEC”), the Receiving Party agrees that it will comply with SEC Regulation FD (Fair Disclosure), as\namended, and will refrain from trading in the Disclosing Party’s stock until that nonpublic information is either publicly disseminated or deemed\nimmaterial by the Disclosing Party.\n4. Term. The term of this Agreement shall commence on the Effective Date and shall terminate three (3) years thereafter, provided that all\nobligations hereunder with respect to disclosures of Confidential Information during the term hereof shall survive termination for a period of two\n(2) years from date of disclosure.\n5. Title and Proprietary Rights. Notwithstanding the disclosure of any Confidential Information by the Disclosing Party to the Receiving\nParty, the Disclosing Party shall retain title and all intellectual property and proprietary rights thereto, and the Receiving Party will have no rights, by\nlicense or otherwise, to use the Confidential Information except as expressly provided herein. The Receiving Party shall not alter or obliterate any\ntrademark, trademark notice, copyright notice, confidentiality notice or any notice of any other proprietary right of the Disclosing Party on any copy\nof Confidential Information, and shall reproduce any such mark or notice on all copies of such Confidential Information.\n6. Return of Confidential Information. The Receiving Party shall promptly return all tangible material embodying Confidential Information\n(in any form and including, without limitation, all summaries, copies and excerpts of Confidential Information) upon the earlier of (a) the expiration\nof this Agreement, (b) the earlier written termination of the dealings between the Disclosing Party and the Receiving Party, and (c) the Disclosing\nParty’s written request.\n7. Injunctive Relief. The parties acknowledge that monetary damages may not be sufficient for unauthorized disclosure by the Receiving\nParty of Confidential Information, and that the Disclosing Party shall be entitled, without waiving any other rights or remedies, to seek injunctive or\nequitable relief as may be deemed proper by a court of proper jurisdiction.\n8. Limited Relationship. This Agreement will not create a joint venture, partnership or other formal business relationship or entity of any\nkind, or an obligation to form any such relationship or entity. Each party shall bear all costs and expenses incurred by it in complying with this\nAgreement.\n9. Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, and each party consents to\nthe jurisdiction of the courts in the State of California, County of Alameda. The prevailing party in any suit brought to enforce rights under this\nAgreement shall be entitled to receive reasonable attorneys’ fees.\n10. General. In the event that one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or\nunenforceable in any respect, then to the maximum extent permitted by law, the remaining provisions of this Agreement shall remain in full force\nand effect. Any waiver, express or implied, by any party of any of its rights arising under this Agreement must be in writing and shall not constitute\nor be deemed a waiver of any other right hereunder, whether of a similar or dissimilar nature. This Agreement shall be binding upon and inure to the\nbenefit of the parties hereto and their respective successors and assigns.\n11. Entire Agreement; Counterparts. This Agreement constitutes the entire agreement between the parties relating to the Purpose, and\nsupercedes all prior discussions between the parties relating thereto. No amendment or modification of this Agreement shall be valid or binding on\nthe parties unless in writing and signed by each party’s authorized representative. This Agreement may be executed in two or more counterparts,\neach of which shall be considered an original, and all of which together shall constitute one and the same instrument. Each party agrees that the\ndelivery of this Agreement via facsimile shall be deemed effective delivery.\n2\nIN WITNESS WHEREOF, the parties hereto have executed this Mutual Nondisclosure Agreement as of the Effective Date.\nAllergy Research Group, Inc.\nKikkoman Corporation\nBy: /s/ Manfred Salomon\nBy: /s/ Mitsuo Someya\nSignature\nSignature\nName: Manfred Salomon\nName: Mitsuo Someya\nRepresentative Director\nTitle: President\nTitle: Senior Executive Corporate Officer\n3	EX-99.(D)(3) 11 dex99d3.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (d)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (the “Agreement™) is made as of March 12, 2008 (the “Effective Date”) by and between Kikkoman\nCorporation (“Kikkoman™), a Japanese corporation and Allergy Research Group, Inc. (“Company”), a Florida corporation.\nRecitals\nA. The parties wish to explore a possible business opportunity of mutual interest (“Business Relationship”) which may involve the disclosure\nby each party (the “Disclosing Party”) to the other party (the “Receiving Party”) of confidential and proprietary information regarding product\ninformation, technical data and other information which is owned by the Disclosing Party, its affiliates or third parties to which the Disclosing Party\nhas obligations regarding the protection of such information.\nB. As a condition to each Disclosing Party’s release of such confidential and proprietary information, the parties wish to enter into this\nAgreement.\nAgreement\nNOW, THEREFORE, in consideration of the mutual promises herein, the parties agree as follows:\n1. Confidential Information. For purposes of this Agreement, “Confidential Information” means all nonpublic information concerning or\nowned by Disclosing Party including, but not limited to, all tangible, intangible, visual, electronic, present or future information such as but not\nlimited to: (a) all intellectual property, including but not limited to patents and patent applications, and trade secrets; (b) financial information or\npersonnel matters relating to products, employees, investors or business; (c) technical information, including research, procedures, processes,\nspecifications, designs, development, data and know-how; (d) business information, including operations, planning, marketing interests, products\n(including product formulations and test data), and client and distributor lists; (e) the terms of any agreement to which Disclosing Party is a party;\n(f) discussions, negotiations or proposals related to agreements; and (g) or any other item of Confidential Information, including but not limited to all\nwritings, illustrations, photographs or other information which Disclosing Party deems to be proprietary or confidential. Confidential Information\nincludes all notes, analyses, compilations, studies, interpretations or other materials prepared by the Disclosing Party or its representatives to the\nextent such materials contain or are based on the Confidential Information furnished to the Receiving Party pursuant to this Agreement. All such\nConfidential Information shall be subject to the terms of this Agreement whether marked as “Confidential” or not and whether disclosed orally,\nelectronically, in writing or other media.\n2. Exclusions. Notwithstanding the foregoing, Confidential Information shall not include any information, however designated, which the\nReceiving Party can show (a) is or has become generally available in the public without breach of this Agreement by the Receiving Party,\n(b) became known to the Receiving Party prior to disclosure to the Receiving Party by the Disclosing Party, (c) was received from a third party\nwithout breach of any nondisclosure obligations to the Disclosing Party or otherwise in violation of the Disclosing Party’s rights, or (d) was\ndeveloped by the Receiving Party independently of any Confidential Information received from the Disclosing Party.\n3. Obligations Regarding Confidential Information. The Receiving Party (a) shall restrict disclosure of Confidential Information solely to\nemployees or consultants on a need to know basis provided such employees and/or consultants have executed appropriate written agreements with\nthe Receiving Party to enable Receiving Party to comply with all provisions of this Agreement, (b) shall protect the Confidential Information with at\nleast the same degree of care and confidentiality as it affords its own confidential information, at all times exercising at least a reasonable degree of\ncare in such protection, and (c) shall not use any Confidential Information in any manner except in furtherance of Receiving Party’s business\nrelationship with Disclosing party, or as otherwise agreed by the Disclosing Party in writing. In addition, with respect to any product or formulation\ndelivered to the Receiving Party by the Disclosing Party, the Receiving Party shall not reverse engineer, dissect, disassemble, decompile or otherwise\nanalyze the physical or chemical construction of any such Confidential Information except as\n1\nnecessary to the evaluation of the Business Relationship. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information\npursuant to an order of a court or governmental agency as so required by such order, provided that the Receiving Party shall first notify the\nDisclosing Party of such order and afford the Disclosing Party the opportunity to seek a protective order relating to such disclosure. The Receiving\nParty agrees to notify the Disclosing Party immediately if it learns of any use or disclosure of any Disclosing Party Confidential Information in\nviolation of the terms of this Agreement. With respect to any material nonpublic information of any Disclosing Party subject to regulation by the\nU.S. Securities & Exchange Commission (“SEC”), the Receiving Party agrees that it will comply with SEC Regulation FD (Fair Disclosure), as\namended, and will refrain from trading in the Disclosing Party’s stock until that nonpublic information is either publicly disseminated or deemed\nimmaterial by the Disclosing Party.\n4. Term. The term of this Agreement shall commence on the Effective Date and shall terminate three (3) years thereafter, provided that all\nobligations hereunder with respect to disclosures of Confidential Information during the term hereof shall survive termination for a period of two\n(2) years from date of disclosure.\n5. Title and Proprietary Rights. Notwithstanding the disclosure of any Confidential Information by the Disclosing Party to the Receiving\nParty, the Disclosing Party shall retain title and all intellectual property and proprietary rights thereto, and the Receiving Party will have no rights, by\nlicense or otherwise, to use the Confidential Information except as expressly provided herein. The Receiving Party shall not alter or obliterate any\ntrademark, trademark notice, copyright notice, confidentiality notice or any notice of any other proprietary right of the Disclosing Party on any copy\nof Confidential Information, and shall reproduce any such mark or notice on all copies of such Confidential Information.\n6. Return of Confidential Information. The Receiving Party shall promptly return all tangible material embodying Confidential Information\n(in any form and including, without limitation, all summaries, copies and excerpts of Confidential Information) upon the earlier of (a) the expiration\nof this Agreement, (b) the earlier written termination of the dealings between the Disclosing Party and the Receiving Party, and (c) the Disclosing\nParty’s written request.\n7. Injunctive Relief. The parties acknowledge that monetary damages may not be sufficient for unauthorized disclosure by the Receiving\nParty of Confidential Information, and that the Disclosing Party shall be entitled, without waiving any other rights or remedies, to seek injunctive or\nequitable relief as may be deemed proper by a court of proper jurisdiction.\n8. Limited Relationship. This Agreement will not create a joint venture, partnership or other formal business relationship or entity of any\nkind, or an obligation to form any such relationship or entity. Each party shall bear all costs and expenses incurred by it in complying with this\nAgreement.\n9. Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, and each party consents to\nthe jurisdiction of the courts in the State of California, County of Alameda. The prevailing party in any suit brought to enforce rights under this\nAgreement shall be entitled to receive reasonable attorneys’ fees.\n10. General. In the event that one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or\nunenforceable in any respect, then to the maximum extent permitted by law, the remaining provisions of this Agreement shall remain in full force\nand effect. Any waiver, express or implied, by any party of any of its rights arising under this Agreement must be in writing and shall not constitute\nor be deemed a waiver of any other right hereunder, whether of a similar or dissimilar nature. This Agreement shall be binding upon and inure to the\nbenefit of the parties hereto and their respective successors and assigns.\n11. Entire Agreement; Counterparts. This Agreement constitutes the entire agreement between the parties relating to the Purpose, and\nsupercedes all prior discussions between the parties relating thereto. No amendment or modification of this Agreement shall be valid or binding on\nthe parties unless in writing and signed by each party’s authorized representative. This Agreement may be executed in two or more counterparts,\neach of which shall be considered an original, and all of which together shall constitute one and the same instrument. Each party agrees that the\ndelivery of this Agreement via facsimile shall be deemed effective delivery.\n2\nAllergy Research Group, Inc. By:\nName: Manfred Salomon === Title:\nIN WITNESS WHEREOF, the parties hereto have executed this Mutual Nondisclosure Agreement as of the Effective Date. /s/ Manfred Salomon Signature\nPresident Kikkoman Corporation\nBy: /s MitwoSomeya 0000 Signature\nName: Mitsuo Someya\nRepresentative Director Title: Senior Executive Corporate Officer	EX-99.(D)(3) 11 dex99d3.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (d)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (the "Agreement") is made as of March 12, 2008 (the "Effective Date") by and between Kikkoman\nCorporation ("Kikkoman"), a Japanese corporation and Allergy Research Group, Inc. ("Company"), a Florida corporation.\nRecitals\nA. The parties wish to explore a possible business opportunity of mutual interest ("Business Relationship") which may involve the disclosure\nby each party (the "Disclosing Party") to the other party (the "Receiving Party") of confidential and proprietary information regarding product\ninformation, technical data and other information which is owned by the Disclosing Party, its affiliates or third parties to which the Disclosing Party\nhas obligations regarding the protection of such information.\nB. As a condition to each Disclosing Party's release of such confidential and proprietary information, the parties wish to enter into this\nAgreement.\nAgreement\nNOW, THEREFORE, in consideration of the mutual promises herein, the parties agree as follows:\n1. Confidential Information. For purposes of this Agreement, "Confidential Information" means all nonpublic information concerning or\nowned by Disclosing Party including, but not limited to, all tangible, intangible, visual, electronic, present or future information such as but not\nlimited to: (a) all intellectual property, including but not limited to patents and patent applications, and trade secrets; (b) financial information or\npersonnel matters relating to products, employees, investors or business; (c) technical information, including research, procedures, processes,\nspecifications,\ndesigns,\ndevelopment,\ndata\nand\nknow-how;\n(d)\nbusiness\ninformation,\nincluding\noperations,\nplanning,\nmarketing\ninterests,\nproducts\n(including product formulations and test data), and client and distributor lists; (e) the terms of any agreement to which Disclosing Party is a party;\n(f) discussions, negotiations or proposals related to agreements; and (g) or any other item of Confidential Information, including but not limited to all\nwritings, illustrations, photographs or other information which Disclosing Party deems to be proprietary or confidential. Confidential Information\nincludes all notes, analyses, compilations, studies, interpretations or other materials prepared by the Disclosing Party or its representatives to the\nextent such materials contain or are based on the Confidential Information furnished to the Receiving Party pursuant to this Agreement. All such\nConfidential Information shall be subject to the terms of this Agreement whether marked as "Confidential" or not and whether disclosed orally,\nelectronically, in writing or other media.\n2. Exclusions. Notwithstanding the foregoing, Confidential Information shall not include any information, however designated, which the\nReceiving Party can show (a) is or has become generally available in the public without breach of this Agreement by the Receiving Party,\n(b) became known to the Receiving Party prior to disclosure to the Receiving Party by the Disclosing Party, (c) was received from a third party\nwithout breach of any nondisclosure obligations to the Disclosing Party or otherwise in violation of the Disclosing Party's rights, or (d) was\ndeveloped by the Receiving Party independently of any Confidential Information received from the Disclosing Party.\n3. Obligations Regarding Confidential Information. The Receiving Party (a) shall restrict disclosure of Confidential Information solely to\nemployees or consultants on a need to know basis provided such employees and/or consultants have executed appropriate written agreements with\nthe Receiving Party to enable Receiving Party to comply with all provisions of this Agreement, (b) shall protect the Confidential Information with\nat\nleast the same degree of care and confidentiality as it affords its own confidential information, at all times exercising at least a reasonable degree of\ncare in such protection, and (c) shall not use any Confidential Information in any manner except in furtherance of Receiving Party's business\nrelationship with Disclosing party, or as otherwise agreed by the Disclosing Party in writing. In addition, with respect to any product or formulation\ndelivered to the Receiving Party by the Disclosing Party, the Receiving Party shall not reverse engineer, dissect, disassemble, decompile or otherwise\nanalyze the physical or chemical construction of any such Confidential Information except as\n1\nnecessary to the evaluation of the Business Relationship. Notwithstanding the foregoing, the Receiving Party may disclose Confidentia Information\npursuant to an order of a court or governmental agency as so required by such order, provided that the Receiving Party shall first notify the\nDisclosing Party of such order and afford the Disclosing Party the opportunity to seek a protective order relating to such disclosure. The Receiving\nParty agrees to notify the Disclosing Party immediately if it learns of any use or disclosure of any Disclosing Party Confidential Information in\nviolation of the terms of this Agreement. With respect to any material nonpublic information of any Disclosing Party subject to regulation by the\nU.S. Securities & Exchange Commission ("SEC"), the Receiving Party agrees that it will comply with SEC Regulation FD (Fair Disclosure), as\namended, and will refrain from trading in the Disclosing Party's stock until that nonpublic information is either publicly disseminated or deemed\nimmaterial by the Disclosing Party.\n4. Term. The term of this Agreement shall commence on the Effective Date and shall terminate three (3) years thereafter, provided that all\nobligations hereunder with respect to disclosures of Confidential Information during the term hereof shall survive termination for a period of two\n(2) years from date of disclosure.\n5. Title and Proprietary Rights. Notwithstanding the disclosure of any Confidential Information by the Disclosing Party to the Receiving\nParty, the Disclosing Party shall retain title and all intellectual property and proprietary rights thereto, and the Receiving Party will have no rights, by\nlicense or otherwise, to use the Confidential Information except as expressly provided herein. The Receiving Party shall not alter or obliterate any\ntrademark, trademark notice, copyright notice, confidentiality notice or any notice of any other proprietary right of the Disclosing Party on any copy\nof Confidential Information, and shall reproduce any such mark or notice on all copies of such Confidential Information.\n6. Return of Confidential Information. The Receiving Party shall promptly return all tangible material embodying Confidential Information\n(in\nany\nform\nand\nincluding,\nwithout\nlimitation,\nall\nsummaries,\ncopies\nand\nexcerpts\nof\nConfidential\nInformation)\nupon\nthe\nearlier\nof\n(a)\nthe\nexpiration\nof this Agreement, (b) the earlier written termination of the dealings between the Disclosing Party and the Receiving Party, and (c) the Disclosing\nParty's written request.\n7. Injunctive Relief. The parties acknowledge that monetary damages may not be sufficient for unauthorized disclosure by the Receiving\nParty of Confidential Information, and that the Disclosing Party shall be entitled, without waiving any other rights or remedies, to seek injunctive\nor\nequitable relief as may be deemed proper by a court of proper jurisdiction.\n8. Limited Relationship. This Agreement will not create a joint venture, partnership or other formal business relationship or entity of any\nkind, or an obligation to form any such relationship or entity. Each party shall bear all costs and expenses incurred by it in complying with this\nAgreement.\n9.\nLaw. This Agreement shall be governed by and construed in accordance with the laws of the State of California, and each party consents to\nthe jurisdiction of the courts in the State of California, County of Alameda. The prevailing party in any suit brought to enforce rights under this\nAgreement shall be entitled to receive reasonable attorneys' fees.\n10. General. In the event that one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or\nunenforceable in any respect, then to the maximum extent permitted by law, the remaining provisions of this Agreement shall remain in full force\nand effect. Any waiver, express or implied, by any party of any of its rights arising under this Agreement must be in writing and shall not constitute\nor be deemed a waiver of any other right hereunder, whether of a similar or dissimilar nature. This Agreement shall be binding upon and inure to the\nbenefit of the parties hereto and their respective successors and assigns.\n11. Entire Agreement; Counterparts. This Agreement constitutes the entire agreement between the parties relating to the Purpose, and\nsupercedes all prior discussions between the parties relating thereto. No amendment or modification of this Agreement shall be valid or binding on\nthe parties unless in writing and signed by each party's authorized representative. This Agreement may be executed in two or more counterparts,\neach of which shall be considered an original, and all of which together shall constitute one and the same instrument. Each party agrees that the\ndelivery of this Agreement via facsimile shall be deemed effective delivery.\n2\nIN WITNESS WHEREOF, the parties hereto have executed this Mutual Nondisclosure Agreement as of the Effective Date.\nAllergy Research Group, Inc.\nKikkoman Corporation\nBy:\n/s/ Manfred Salomon\nBy:\n/s/ Mitsuo Someya\nSignature\nSignature\nName: Manfred Salomon\nName: Mitsuo Someya\nRepresentative Director\nTitle: President\nTitle: Senior Executive Corporate Officer\n3	EX-99.(D)(3) 11 dex99d3.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (d)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (the “Agreement”) is made as of March 12, 2008 (the “Effective Date”) by and between Kikkoman\nCorporation (“Kikkoman”), a Japanese corporation and Allergy Research Group, Inc. (“Company”), a Florida corporation.\nRecitals\nA. The parties wish to explore a possible business opportunity of mutual interest (“Business Relationship”) which may involve the disclosure\nby each party (the “Disclosing Party”) to the other party (the “Receiving Party”) of confidential and proprietary information regarding product\ninformation, technical data and other information which is owned by the Disclosing Party, its affiliates or third parties to which the Disclosing Party\nhas obligations regarding the protection of such information.\nB. As a condition to each Disclosing Party’s release of such confidential and proprietary information, the parties wish to enter into this\nAgreement.\nAgreement\nNOW, THEREFORE, in consideration of the mutual promises herein, the parties agree as follows:\n1. Confidential Information. For purposes of this Agreement, “Confidential Information” means all nonpublic information concerning or\nowned by Disclosing Party including, but not limited to, all tangible, intangible, visual, electronic, present or future information such as but not\nlimited to: (a) all intellectual property, including but not limited to patents and patent applications, and trade secrets; (b) financial information or\npersonnel matters relating to products, employees, investors or business; (c) technical information, including research, procedures, processes,\nspecifications, designs, development, data and know-how; (d) business information, including operations, planning, marketing interests, products\n(including product formulations and test data), and client and distributor lists; (e) the terms of any agreement to which Disclosing Party is a party;\n(f) discussions, negotiations or proposals related to agreements; and (g) or any other item of Confidential Information, including but not limited to all\nwritings, illustrations, photographs or other information which Disclosing Party deems to be proprietary or confidential. Confidential Information\nincludes all notes, analyses, compilations, studies, interpretations or other materials prepared by the Disclosing Party or its representatives to the\nextent such materials contain or are based on the Confidential Information furnished to the Receiving Party pursuant to this Agreement. All such\nConfidential Information shall be subject to the terms of this Agreement whether marked as “Confidential” or not and whether disclosed orally,\nelectronically, in writing or other media.\n2. Exclusions. Notwithstanding the foregoing, Confidential Information shall not include any information, however designated, which the\nReceiving Party can show (a) is or has become generally available in the public without breach of this Agreement by the Receiving Party,\n(b) became known to the Receiving Party prior to disclosure to the Receiving Party by the Disclosing Party, (c) was received from a third party\nwithout breach of any nondisclosure obligations to the Disclosing Party or otherwise in violation of the Disclosing Party’s rights, or (d) was\ndeveloped by the Receiving Party independently of any Confidential Information received from the Disclosing Party.\n3. Obligations Regarding Confidential Information. The Receiving Party (a) shall restrict disclosure of Confidential Information solely to\nemployees or consultants on a need to know basis provided such employees and/or consultants have executed appropriate written agreements with\nthe Receiving Party to enable Receiving Party to comply with all provisions of this Agreement, (b) shall protect the Confidential Information with at\nleast the same degree of care and confidentiality as it affords its own confidential information, at all times exercising at least a reasonable degree of\ncare in such protection, and (c) shall not use any Confidential Information in any manner except in furtherance of Receiving Party’s business\nrelationship with Disclosing party, or as otherwise agreed by the Disclosing Party in writing. In addition, with respect to any product or formulation\ndelivered to the Receiving Party by the Disclosing Party, the Receiving Party shall not reverse engineer, dissect, disassemble, decompile or otherwise\nanalyze the physical or chemical construction of any such Confidential Information except as\n1\nnecessary to the evaluation of the Business Relationship. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information\npursuant to an order of a court or governmental agency as so required by such order, provided that the Receiving Party shall first notify the\nDisclosing Party of such order and afford the Disclosing Party the opportunity to seek a protective order relating to such disclosure. The Receiving\nParty agrees to notify the Disclosing Party immediately if it learns of any use or disclosure of any Disclosing Party Confidential Information in\nviolation of the terms of this Agreement. With respect to any material nonpublic information of any Disclosing Party subject to regulation by the\nU.S . Securities & Exchange Commission (“SEC”), the Receiving Party agrees that it will comply with SEC Regulation FD (Fair Disclosure), as\namended, and will refrain from trading in the Disclosing Party’s stock until that nonpublic information is either publicly disseminated or deemed\nimmaterial by the Disclosing Party.\n4. Term. The term of this Agreement shall commence on the Effective Date and shall terminate three (3) years thereafter, provided that all\nobligations hereunder with respect to disclosures of Confidential Information during the term hereof shall survive termination for a period of two\n(2) years from date of disclosure.\n5. Title and Proprietary Rights. Notwithstanding the disclosure of any Confidential Information by the Disclosing Party to the Receiving\nParty, the Disclosing Party shall retain title and all intellectual property and proprietary rights thereto, and the Receiving Party will have no rights, by\nlicense or otherwise, to use the Confidential Information except as expressly provided herein. The Receiving Party shall not alter or obliterate any\ntrademark, trademark notice, copyright notice, confidentiality notice or any notice of any other proprietary right of the Disclosing Party on any copy\nof Confidential Information, and shall reproduce any such mark or notice on all copies of such Confidential Information.\n6. Return of Confidential Information. The Receiving Party shall promptly return all tangible material embodying Confidential Information\n(in any form and including, without limitation, all summaries, copies and excerpts of Confidential Information) upon the earlier of (a) the expiration\nof this Agreement, (b) the earlier written termination of the dealings between the Disclosing Party and the Receiving Party, and (c) the Disclosing\nParty’s written request.\n7. Injunctive Relief. The parties acknowledge that monetary damages may not be sufficient for unauthorized disclosure by the Receiving\nParty of Confidential Information, and that the Disclosing Party shall be entitled, without waiving any other rights or remedies, to seek injunctive or\nequitable relief as may be deemed proper by a court of proper jurisdiction.\n8. Limited Relationship. This Agreement will not create a joint venture, partnership or other formal business relationship or entity of any\nkind, or an obligation to form any such relationship or entity. Each party shall bear all costs and expenses incurred by it in complying with this\nAgreement.\n9. Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, and each party consents to\nthe jurisdiction of the courts in the State of California, County of Alameda. The prevailing party in any suit brought to enforce rights under this\nAgreement shall be entitled to receive reasonable attorneys’ fees.\n10. General. In the event that one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or\nunenforceable in any respect, then to the maximum extent permitted by law, the remaining provisions of this Agreement shall remain in full force\nand effect. Any waiver, express or implied, by any party of any of its rights arising under this Agreement must be in writing and shall not constitute\nor be deemed a waiver of any other right hereunder, whether of a similar or dissimilar nature. This Agreement shall be binding upon and inure to the\nbenefit of the parties hereto and their respective successors and assigns.\n11. Entire Agreement; Counterparts. This Agreement constitutes the entire agreement between the parties relating to the Purpose, and\nsupercedes all prior discussions between the parties relating thereto. No amendment or modification of this Agreement shall be valid or binding on\nthe parties unless in writing and signed by each party’s authorized representative. This Agreement may be executed in two or more counterparts,\neach of which shall be considered an original, and all of which together shall constitute one and the same instrument. Each party agrees that the\ndelivery of this Agreement via facsimile shall be deemed effective delivery.\n2\nIN WITNESS WHEREOF, the parties hereto have executed this Mutual Nondisclosure Agreement as of the Effective Date.\nAllergy Research Group, Inc.\nKikkoman Corporation\nBy: /s/ Manfred Salomon\nBy: /s/ Mitsuo Someya\nSignature\nSignature\nName: Manfred Salomon\nName: Mitsuo Someya\nRepresentative Director\nTitle: President\nTitle: Senior Executive Corporate Officer\n3
d35669c46ad4b8d30e5f09b4eb94d889.pdf	effective_date jurisdiction party term	EXHIBIT B\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (“Agreement”) is made and entered into as of this 9th day of July, 2008 (the “Effective Date”), by and\nbetween Innotrac Corporation having a place of business at 6655 Sugarloaf Parkway, Duluth, GA 30097 (“INNOTRAC”), and Dynamic Response\nGroup, Inc, having its principal place of business at 4770 Biscayne Blvd., Suite 1400, Miami, FL 33137 (“COMPANY”).\n1. INNOTRAC and COMPANY are entering into this Agreement in order to obtain from the other certain technical and business information\nunder terms that will protect the confidential and proprietary nature of such information. Such information shall only be used in conjunction with the\nparties entering into a new business outsourcing relationship.\n2. As used herein, “Confidential Information” shall mean any and all technical or business information, including third party information\n(including, but not limited to, trade secrets, product/service specifications, prototypes, computer programs, models, drawings, marketing plans,\nfinancial data, and personnel statistics) provided, disclosed or made accessible by one party to the other that is either identified as or would\nreasonably be understood to be confidential and/or proprietary. “Confidential Information” does not include information that the receiving party can\nclearly establish by written evidence: (a) is or becomes known to the receiving party from a third party without an obligation to maintain its\nconfidentiality; (b) is or becomes generally known to the public through no act or omission of the receiving party; or (c) is independently developed\nby the receiving party without use of Confidential Information of the disclosing party.\n3. The receiving party will make no use of Confidential Information of the disclosing party for any purpose other than that specified in\nSection 1. The receiving party will not disclose Confidential Information of the disclosing party to any third party (including any affiliates of itself or\nof the disclosing party), and will protect and treat all Confidential Information of the disclosing party with the same degree of care as it uses to\nprotect its own confidential information of like importance, but in no event with less than reasonable care. The receiving party will only disclose\nConfidential Information of the disclosing party to its employees and/or agents who have a “need to know.” The receiving party will notify and\ninform such employees and/or agents of the receiving party’s obligations imposed by this Agreement, and the receiving party will be responsible for\nany breach of this Agreement by its employees and/or agents. In the event that the receiving party is required to disclose Confidential Information of\nthe disclosing party pursuant to law, the receiving party will notify the disclosing party of the required disclosure with sufficient time for the\ndisclosing party to seek relief, will cooperate with the disclosing party in taking appropriate protective measures, and will make such disclosure in a\nfashion that maximizes protection of the Confidential Information from further disclosure.\n4. The receiving party agrees that in the event that the disclosing party grants permission for the receiving party to copy Confidential\nInformation, or that copying is otherwise permitted hereunder, each such copy shall contain the same confidential or proprietary notices or legends\nthat appear on the original.\n5. This Agreement shall remain in full force and effect during the Term of the Fulfillment Services Agreement executed by the parties dated\nJuly, 2008 and for a period of two (2) years following the expiration or termination of same.\n6. Upon termination of this Agreement for any reason or upon request of the disclosing party, the receiving party shall, at the disclosing party’s\noption, return all Confidential Information, together with any copies thereof, to the disclosing party, or certify to the disclosing party that the same\nhas been destroyed.\n7. Except for the obligations of use and confidentiality imposed herein, no obligation of any kind is assumed or implied against either party by\nvirtue of the parties’ meetings or conversations with respect to the subject matter stated above or with respect to whatever Confidential Information\nis exchanged. Without limiting the generality of the foregoing, so long as the receiving party does not breach this Agreement, this Agreement shall\nnot impair or restrict the receiving party’s right to make, procure or market any products or services, now or in the future, that may be similar to or\ncompetitive with those offered by the disclosing party, or that are the subject matter of the information exchanged pursuant to this Agreement.\n8. Nothing herein contained shall be construed as granting to either party any right or license under any copyrights, inventions, or patents now\nor hereafter owned or controlled by the other party.\nConfidential\nPage 16\n9. Without the prior consent of the other party, neither party shall disclose to any third party the terms or conditions of this Agreement and that\nConfidential Information is being shared. The parties also agree that neither party shall use any trade name, service mark, or trademark of the other\nor refer to the other party in any promotional activity or material without obtaining the prior written consent of the other party.\n10. Neither this Agreement nor any rights or obligations of either party under this Agreement shall be transferable or assignable by that party\nwithout the prior written consent of the other party, and any attempted transfer or assignment of this Agreement by either party not in accordance\nherewith shall be null and void. Notwithstanding the foregoing, COMPANY may assign this Agreement immediately, without the prior written\nconsent of the other party: (a) to any entity that controls, is controlled by, or is in common control with, COMPANY, and (b) to any successor in\ninterest to COMPANY. The rights and obligations of each party under this Agreement shall be binding upon and inure to the benefit of their\npermitted successors or assigns.\n11. This Agreement will be governed by the laws of the State of Georgia without reference to its choice of law rules. It is expressly agreed that\neither party may seek injunctive relief with respect to this Agreement in the state and federal courts in the state and county of the party defending the\naction, and the parties hereby irrevocably consent to exclusive jurisdiction and venue therein.\n12. This Agreement, together with any and all exhibits incorporated herein, constitutes the entire agreement between the parties with respect to\nthe subject matter of this Agreement and supersedes all prior oral and written understandings, arrangements and agreements between the parties\nrelating thereto. No provision of this Agreement shall be deemed waived, amended or modified by either party, unless such waiver, amendment or\nmodification is made in writing and signed by both parties.\n13. Any notice to be given hereunder by either party to the other shall be in writing and shall be hand delivered, sent by overnight courier or\nsent by U.S . mail to the address listed below. All notices shall be deemed effective upon receipt.\nINNOTRAC CORPORATION\nDYNAMIC RESPONSE GROUP, INC.\nInnotrac Corporation\nDynamic Response Group, Inc.\n6655 Sugarloaf Parkway\n4770 Biscayne Blvd., Suite 1400\nAtlanta, GA 30097\nMiami, FL 33137\nPhone: 678.584.4000\nPhone: 305.576.6889\nFax: 678.584.8950\nFax: 305.576.6997\nAttn: George Hare, CFO\nAttn: Melissa Rice, CEO\n14. Neither party will use the other party’s names, marks, codes, drawings or specifications in any advertising, press release, promotional effort\nor publicity of any kind without the prior written permission of the other party.\nIN WITNESS THEREOF, this Agreement is executed by the parties as of the date first set forth above.\nINNOTRAC CORPORATION\nDYNAMIC RESPONSE GROUP, INC.\nBy: /s/ George Hare\nBy: /s/ Melissa K. Rice\nName: George Hare\nName: Melissa K. Rice\nTitle: CEO 7-15 -08\nTitle: CEO 7-18-08\nConfidential\nPage 17	EXHIBIT B\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (“Agreement”) is made and entered into as of this 9th day of July, 2008 (the “Effective Date”), by and\nbetween Innotrac Corporation having a place of business at 6655 Sugarloaf Parkway, Duluth, GA 30097 (“INNOTRAC”), and Dynamic Response\nGroup, Inc, having its principal place of business at 4770 Biscayne Blvd., Suite 1400, Miami, FL 33137 (“COMPANY”).\n1. INNOTRAC and COMPANY are entering into this Agreement in order to obtain from the other certain technical and business information\nunder terms that will protect the confidential and proprietary nature of such information. Such information shall only be used in conjunction with the\nparties entering into a new business outsourcing relationship.\n2. As used herein, “Confidential Information” shall mean any and all technical or business information, including third party information\n(including, but not limited to, trade secrets, product/service specifications, prototypes, computer programs, models, drawings, marketing plans,\nfinancial data, and personnel statistics) provided, disclosed or made accessible by one party to the other that is either identified as or would\nreasonably be understood to be confidential and/or proprietary. “Confidential Information” does not include information that the receiving party can\nclearly establish by written evidence: (a) is or becomes known to the receiving party from a third party without an obligation to maintain its\nconfidentiality; (b) is or becomes generally known to the public through no act or omission of the receiving party; or (c) is independently developed\nby the receiving party without use of Confidential Information of the disclosing party.\n3. The receiving party will make no use of Confidential Information of the disclosing party for any purpose other than that specified in\nSection 1. The receiving party will not disclose Confidential Information of the disclosing party to any third party (including any affiliates of itself or\nof the disclosing party), and will protect and treat all Confidential Information of the disclosing party with the same degree of care as it uses to\nprotect its own confidential information of like importance, but in no event with less than reasonable care. The receiving party will only disclose\nConfidential Information of the disclosing party to its employees and/or agents who have a “need to know.” The receiving party will notify and\ninform such employees and/or agents of the receiving party’s obligations imposed by this Agreement, and the receiving party will be responsible for\nany breach of this Agreement by its employees and/or agents. In the event that the receiving party is required to disclose Confidential Information of\nthe disclosing party pursuant to law, the receiving party will notify the disclosing party of the required disclosure with sufficient time for the\ndisclosing party to seek relief, will cooperate with the disclosing party in taking appropriate protective measures, and will make such disclosure in a\nfashion that maximizes protection of the Confidential Information from further disclosure.\n4. The receiving party agrees that in the event that the disclosing party grants permission for the receiving party to copy Confidential\nInformation, or that copying is otherwise permitted hereunder, each such copy shall contain the same confidential or proprietary notices or legends\nthat appear on the original.\n5. This Agreement shall remain in full force and effect during the Term of the Fulfillment Services Agreement executed by the parties dated\nJuly, 2008 and for a period of two (2) years following the expiration or termination of same.\n6. Upon termination of this Agreement for any reason or upon request of the disclosing party, the receiving party shall, at the disclosing party’s\noption, return all Confidential Information, together with any copies thereof, to the disclosing party, or certify to the disclosing party that the same\nhas been destroyed.\n7. Except for the obligations of use and confidentiality imposed herein, no obligation of any kind is assumed or implied against either party by\nvirtue of the parties’ meetings or conversations with respect to the subject matter stated above or with respect to whatever Confidential Information\nis exchanged. Without limiting the generality of the foregoing, so long as the receiving party does not breach this Agreement, this Agreement shall\nnot impair or restrict the receiving party’s right to make, procure or market any products or services, now or in the future, that may be similar to or\ncompetitive with those offered by the disclosing party, or that are the subject matter of the information exchanged pursuant to this Agreement.\n8. Nothing herein contained shall be construed as granting to either party any right or license under any copyrights, inventions, or patents now\nor hereafter owned or controlled by the other party.\nConfidential Page 16\n9. Without the prior consent of the other party, neither party shall disclose to any third party the terms or conditions of this Agreement and that\nConfidential Information is being shared. The parties also agree that neither party shall use any trade name, service mark, or trademark of the other\nor refer to the other party in any promotional activity or material without obtaining the prior written consent of the other party.\n10. Neither this Agreement nor any rights or obligations of either party under this Agreement shall be transferable or assignable by that party\nwithout the prior written consent of the other party, and any attempted transfer or assignment of this Agreement by either party not in accordance\nherewith shall be null and void. Notwithstanding the foregoing, COMPANY may assign this Agreement immediately, without the prior written\nconsent of the other party: (a) to any entity that controls, is controlled by, or is in common control with, COMPANY, and (b) to any successor in\ninterest to COMPANY. The rights and obligations of each party under this Agreement shall be binding upon and inure to the benefit of their\npermitted successors or assigns.\n11. This Agreement will be governed by the laws of the State of Georgia without reference to its choice of law rules. It is expressly agreed that\neither party may seek injunctive relief with respect to this Agreement in the state and federal courts in the state and county of the party defending the\naction, and the parties hereby irrevocably consent to exclusive jurisdiction and venue therein.\n12. This Agreement, together with any and all exhibits incorporated herein, constitutes the entire agreement between the parties with respect to\nthe subject matter of this Agreement and supersedes all prior oral and written understandings, arrangements and agreements between the parties\nrelating thereto. No provision of this Agreement shall be deemed waived, amended or modified by either party, unless such waiver, amendment or\nmodification is made in writing and signed by both parties.\n13. Any notice to be given hereunder by either party to the other shall be in writing and shall be hand delivered, sent by overnight courier or\nsent by U.S. mail to the address listed below. All notices shall be deemed effective upon receipt.\nINNOTRAC CORPORATION DYNAMIC RESPONSE GROUP, INC.\nInnotrac Corporation Dynamic Response Group, Inc.\n6655 Sugarloaf Parkway 4770 Biscayne Blvd., Suite 1400\nAtlanta, GA 30097 Miami, FL 33137\nPhone: 678.584.4000 Phone: 305.576.6889\nFax: 678.584.8950 Fax: 305.576.6997\nAttn: George Hare, CFO Attn: Melissa Rice, CEO\n14. Neither party will use the other party’s names, marks, codes, drawings or specifications in any advertising, press release, promotional effort\nor publicity of any kind without the prior written permission of the other party.\nIN WITNESS THEREOF, this Agreement is executed by the parties as of the date first set forth above.\nINNOTRAC CORPORATION DYNAMIC RESPONSE GROUP, INC.\nBy: /s/ George Hare By: /s/ Melissa K. Rice\nName: George Hare Name: Melissa K. Rice\nTitle: CEO 7-15-08 Title: CEO 7-18-08\nConfidential Page 17	EXHIBIT B\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement ("Agreement") is made and entered into as of this 9th day of July, 2008 (the "Effective Date"), by and\nbetween Innotrac Corporation having a place of business at 6655 Sugarloaf Parkway, Duluth, GA 30097 ("INNOTRAC"), and Dynamic Response\nGroup, Inc, having its principal place of business at 4770 Biscayne Blvd., Suite 1400, Miami, FL 33137 ("COMPANY").\n1. INNOTRAC and COMPANY are entering into this Agreement in order to obtain from the other certain technical and business information\nunder terms that will protect the confidential and proprietary nature of such information. Such information shall only be used in conjunction with the\nparties entering into a new business outsourcing relationship.\n2. As used herein, "Confidential Information" shall mean any and all technical or business information including third party information\n(including, but not limited to, trade secrets, product/service specifications, prototypes, computer programs, models, drawings, marketing plans,\nfinancial data, and personnel statistics) provided, disclosed or made accessible by one party to the other that is either identified as or would\nreasonably be understood to be confidential and/or proprietary. "Confidential Information" does not include information that the receiving party can\nclearly establish by written evidence: (a) is or becomes known to the receiving party from a third party without an obligation to maintain its\nconfidentiality; (b) is or becomes generally known to the public through no act or omission of the receiving party; or (c) is independently developed\nby the receiving party without use of Confidential Information of the disclosing party.\n3. The receiving party will make no use of Confidential Information of the disclosing party for any purpose other than that specified in\nSection 1. The receiving party will not disclose Confidential Information of the disclosing party to any third party (including any affiliates of itself or\nof the disclosing party), and will protect and treat all Confidential Information of the disclosing party with the same degree of care as it uses to\nprotect\nits\nown\nconfidential\ninformation\nof\nlike\nimportance,\nbut\nin\nno\nevent\nwith\nless\nthan\nreasonable\ncare.\nThe\nreceiving\nparty\nwill\nonly\ndisclose\nConfidential Information of the disclosing party to its employees and/or agents who have a "need to know." The receiving party will notify and\ninform such employees and/or agents of the receiving party's obligations imposed by this Agreement, and the receiving party will be responsible\nfor\nany\nbreach of this Agreement by its employees and/or agents. In the event that the receiving party is required to disclose Confidential Information\nof\nthe disclosing party pursuant to law, the receiving party will notify the disclosing party of the required disclosure with sufficient time for the\ndisclosing party to seek relief, will cooperate with the disclosing party in taking appropriate protective measures, and will make such disclosure in\na\nfashion that maximizes protection of the Confidential Information from further disclosure.\n4. The receiving party agrees that in the event that the disclosing party grants permission for the receiving party to copy Confidential\nInformation, or that copying is otherwise permitted hereunder, each such copy shall contain the same confidential or proprietary notices or legends\nthat appear on the original.\n5. This Agreement shall remain in full force and effect during the Term of the Fulfillment Services Agreement executed by the parties dated\nJuly, 2008 and for a period of two (2) years following the expiration or termination of same.\n6.\nUpon termination of this Agreement for any reason or upon request of the disclosing party, the receiving party shall, at the disclosing party's\noption, return all Confidential Information, together with any copies thereof, to the disclosing party, or certify to the disclosing party that the same\nhas been destroyed.\n7. Except for the obligations of use and confidentiality imposed herein, no obligation of any kind is assumed or implied against either party by\nvirtue of the parties' meetings or conversations with respect to the subject matter stated above or with respect to whatever Confidential Information\nis\nexchanged. Without limiting the generality of the foregoing, so long as the receiving party does not breach this Agreement, this Agreement shall\nnot impair or restrict the receiving party's right to make, procure or market any products or services, now or in the future, that may be similar to or\ncompetitive with those offered by the disclosing party, or that are the subject matter of the information exchanged pursuant to this Agreement.\n8. Nothing herein contained shall be construed as granting to either party any right or license under any copyrights, inventions, or patents now\nor hereafter owned or controlled by the other party.\nConfidential\nPage 16\n9. Without the prior consent of the other party, neither party shall disclose to any third party the terms or conditions of this Agreement and that\nConfidential Information is being shared. The parties also agree that neither party shall use any trade name, service mark, or trademark of the other\nor refer to the other party in any promotional activity or material without obtaining the prior written consent of the other party.\n10. Neither this Agreement nor any rights or obligations of either party under this Agreement shall be transferable or assignable by that party\nwithout the prior written consent of the other party, and any attempted transfer or assignment of this Agreement by either party not in accordance\nherewith shall be null and void Notwithstanding the foregoing, COMPANY may assign this Agreement immediately, without the prior written\nconsent of the other party: (a) to any entity that controls, is controlled by, or is in common control with, COMPANY, and (b) to any successor\nin\ninterest to COMPANY. The rights and obligations of each party under this Agreement shall be binding upon and inure to the benefit of their\npermitted successors or assigns.\n11. This Agreement will be governed by the laws of the State of Georgia without reference to its choice of law rules. It is expressly agreed that\neither party may seek injunctive relief with respect to this Agreement in the state and federal courts in the state and county of the party defending the\naction, and the parties hereby irrevocably consent to exclusive jurisdiction and venue therein.\n12. This Agreement, together with any and all exhibits incorporated herein, constitutes the entire agreement between the parties with respect to\nthe subject matter of this Agreement and supersedes all prior oral and written understandings, arrangements and agreements between the parties\nrelating thereto. No provision of this Agreement shall be deemed waived, amended or modified by either party, unless such waiver, amendment or\nmodification is made in writing and signed by both parties.\n13. Any notice to be given hereunder by either party to the other shall be in writing and shall be hand delivered, sent by overnight courier or\nsent by U.S. mail to the address listed below. All notices shall be deemed effective upon receipt.\nINNOTRAC CORPORATION\nDYNAMIC RESPONSE GROUP, INC.\nInnotrac Corporation\nDynamic Response Group, Inc.\n6655 Sugarloaf Parkway\n4770 Biscayne Blvd., Suite 1400\nAtlanta, GA 30097\nMiami, FL 33137\nPhone: 678.584.4000\nPhone: 305.576.6889\nFax: 678.584.8950\nFax: 305.576.6997\nAttn: George Hare, CFO\nAttn: Melissa Rice, CEO\n14. Neither party will use the other party's names, marks, codes, drawings or specifications in any advertising, press release, promotional effort\nor publicity of any kind without the prior written permission of the other party.\nIN WITNESS THEREOF, this Agreement is executed by the parties as of the date first set forth above.\nINNOTRAC CORPORATION\nDYNAMIC RESPONSE GROUP, INC.\nBy:\n/s/ George Hare\nBy:\n/s/ Melissa K. Rice\nName: George Hare\nName: Melissa K. Rice\nTitle: CEO 7-15-08\nTitle: CEO 7-18-08\nConfidential\nPage 17	EXHIBIT B\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (“Agreement”) is made and entered into as of this 9th day of July, 2008 (the “Effective Date”), by and\nbetween Innotrac Corporation having a place of business at 6655 Sugarloaf Parkway, Duluth, GA 30097 (“INNOTRAC”), and Dynamic Response\nGroup, Inc, having its principal place of business at 4770 Biscayne Blvd., Suite 1400, Miami, FL 33137 (“COMPANY”).\n1. INNOTRAC and COMPANY are entering into this Agreement in order to obtain from the other certain technical and business information\nunder terms that will protect the confidential and proprietary nature of such information. Such information shall only be used in conjunction with the\nparties entering into a new business outsourcing relationship.\n2. As used herein, “Confidential Information” shall mean any and all technical or business information, including third party information\n(including, but not limited to, trade secrets, product/service specifications, prototypes, computer programs, models, drawings, marketing plans,\nfinancial data, and personnel statistics) provided, disclosed or made accessible by one party to the other that is either identified as or would\nreasonably be understood to be confidential and/or proprietary. “Confidential Information” does not include information that the receiving party can\nclearly establish by written evidence: (a) is or becomes known to the receiving party from a third party without an obligation to maintain its\nconfidentiality; (b) is or becomes generally known to the public through no act or omission of the receiving party; or (c) is independently developed\nby the receiving party without use of Confidential Information of the disclosing party.\n3. The receiving party will make no use of Confidential Information of the disclosing party for any purpose other than that specified in\nSection 1. The receiving party will not disclose Confidential Information of the disclosing party to any third party (including any affiliates of itself or\nof the disclosing party), and will protect and treat all Confidential Information of the disclosing party with the same degree of care as it uses to\nprotect its own confidential information of like importance, but in no event with less than reasonable care. The receiving party will only disclose\nConfidential Information of the disclosing party to its employees and/or agents who have a “need to know.” The receiving party will notify and\ninform such employees and/or agents of the receiving party’s obligations imposed by this Agreement, and the receiving party will be responsible for\nany breach of this Agreement by its employees and/or agents. In the event that the receiving party is required to disclose Confidential Information of\nthe disclosing party pursuant to law, the receiving party will notify the disclosing party of the required disclosure with sufficient time for the\ndisclosing party to seek relief, will cooperate with the disclosing party in taking appropriate protective measures, and will make such disclosure in a\nfashion that maximizes protection of the Confidential Information from further disclosure.\n4. The receiving party agrees that in the event that the disclosing party grants permission for the receiving party to copy Confidential\nInformation, or that copying is otherwise permitted hereunder, each such copy shall contain the same confidential or proprietary notices or legends\nthat appear on the original.\n5. This Agreement shall remain in full force and effect during the Term of the Fulfillment Services Agreement executed by the parties dated\nJuly, 2008 and for a period of two (2) years following the expiration or termination of same.\n6. Upon termination of this Agreement for any reason or upon request of the disclosing party, the receiving party shall, at the disclosing party’s\noption, return all Confidential Information, together with any copies thereof, to the disclosing party, or certify to the disclosing party that the same\nhas been destroyed.\n7. Except for the obligations of use and confidentiality imposed herein, no obligation of any kind is assumed or implied against either party by\nvirtue of the parties’ meetings or conversations with respect to the subject matter stated above or with respect to whatever Confidential Information\nis exchanged. Without limiting the generality of the foregoing, so long as the receiving party does not breach this Agreement, this Agreement shall\nnot impair or restrict the receiving party’s right to make, procure or market any products or services, now or in the future, that may be similar to or\ncompetitive with those offered by the disclosing party, or that are the subject matter of the information exchanged pursuant to this Agreement.\n8. Nothing herein contained shall be construed as granting to either party any right or license under any copyrights, inventions, or patents now\nor hereafter owned or controlled by the other party.\nConfidential\nPage 16\n9. Without the prior consent of the other party, neither party shall disclose to any third party the terms or conditions of this Agreement and that\nConfidential Information is being shared. The parties also agree that neither party shall use any trade name, service mark, or trademark of the other\nor refer to the other party in any promotional activity or material without obtaining the prior written consent of the other party.\n10. Neither this Agreement nor any rights or obligations of either party under this Agreement shall be transferable or assignable by that party\nwithout the prior written consent of the other party, and any attempted transfer or assignment of this Agreement by either party not in accordance\nherewith shall be null and void. Notwithstanding the foregoing, COMPANY may assign this Agreement immediately, without the prior written\nconsent of the other party: (a) to any entity that controls, is controlled by, or is in common control with, COMPANY, and (b) to any successor in\ninterest to COMPANY. The rights and obligations of each party under this Agreement shall be binding upon and inure to the benefit of their\npermitted successors or assigns.\n11. This Agreement will be governed by the laws of the State of Georgia without reference to its choice of law rules. It is expressly agreed that\neither party may seek injunctive relief with respect to this Agreement in the state and federal courts in the state and county of the party defending the\naction, and the parties hereby irrevocably consent to exclusive jurisdiction and venue therein.\n12. This Agreement, together with any and all exhibits incorporated herein, constitutes the entire agreement between the parties with respect to\nthe subject matter of this Agreement and supersedes all prior oral and written understandings, arrangements and agreements between the parties\nrelating thereto. No provision of this Agreement shall be deemed waived, amended or modified by either party, unless such waiver, amendment or\nmodification is made in writing and signed by both parties.\n13. Any notice to be given hereunder by either party to the other shall be in writing and shall be hand delivered, sent by overnight courier or\nsent by U.S . mail to the address listed below. All notices shall be deemed effective upon receipt.\nINNOTRAC CORPORATION\nDYNAMIC RESPONSE GROUP, INC.\nInnotrac Corporation\nDynamic Response Group, Inc.\n6655 Sugarloaf Parkway\n4770 Biscayne Blvd., Suite 1400\nAtlanta, GA 30097\nMiami, FL 33137\nPhone: 678.584.4000\nPhone: 305.576.6889\nFax: 678.584.8950\nFax: 305.576.6997\nAttn: George Hare, CFO\nAttn: Melissa Rice, CEO\n14. Neither party will use the other party’s names, marks, codes, drawings or specifications in any advertising, press release, promotional effort\nor publicity of any kind without the prior written permission of the other party.\nIN WITNESS THEREOF, this Agreement is executed by the parties as of the date first set forth above.\nINNOTRAC CORPORATION\nDYNAMIC RESPONSE GROUP, INC.\nBy: /s/ George Hare\nBy: /s/ Melissa K. Rice\nName: George Hare\nName: Melissa K. Rice\nTitle: CEO 7-15 -08\nTitle: CEO 7-18-08\nConfidential\nPage 17
d47abc36dc453e3758620b93254558a2.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nJanuary 7, 2010\nIntersil Corporation\n1001 Murphy Ranch Road\nMilpitas, CA 95035\nLadies and Gentlemen:\nWe understand from Deutsche Bank Securities Inc. (“Deutsche Bank”), our financial adviser, that you may be interested in pursuing a transaction\nwith Techwell, Inc. (the “Company”) on a mutually agreeable basis. In connection with your possible interest in a transaction with the Company,\nwe propose to furnish you with certain information related to the Company (herein referred to as the “Confidential Information”). Confidential\nInformation includes not only written information but also information transferred orally, visually, electronically or by any other means. The fact that\nsuch information has been delivered to you, that such a transaction is under consideration by the Company, that discussions or negotiations have\noccurred or are occurring regarding a possible transaction involving the Company and you, and the status of any such discussions or negotiations, are\nconsidered Confidential Information for purposes of this Agreement. In consideration of our furnishing you with the Confidential Information, and\nas a condition to such disclosure, you agree as follows:\n1. The Confidential Information will be used by you solely for the purpose of your evaluation of the desirability of your entering into a\ntransaction with the Company, and for no other purpose.\n2. You shall keep all Confidential Information secret and confidential and shall not, without the prior written consent of the Company, disclose it\nto anyone except to a limited group of your own employees, directors, officers, agents and outside advisors (“Representatives”) who are\nactually engaged in, and need to know such Confidential Information to perform, the evaluation referred to above, each of whom must be\nadvised of the confidential nature of the Confidential Information and of the terms of this Agreement and must agree to abide by such terms.\nYou shall be responsible for any breach of this Agreement by any of your Representatives.\n3. Upon any termination of your evaluation of pursuing a transaction with the Company or upon notice from the Company to you (i) you will\neither destroy or return to the Company the Confidential Information which is in tangible form, including any copies which you may have\nmade, and you will destroy all abstracts, summaries thereof or references thereto in your documents, and certify to us that you have done so,\nand (ii) neither you nor your Representatives will use any of the Confidential Information with respect to, or in furtherance of, your business,\nany of their respective businesses, or in the business of anyone else, whether or not in competition with the Company, or for any other purpose\nwhatsoever. Notwithstanding the preceding sentence, one copy of Confidential Information in tangible form that has been supplied to you may\nbe retained by your Legal Department for the sole purpose of maintaining a record of Confidential Information that has been disclosed to you\npursuant to this Agreement.\nIntersil Corporation\nJanuary 7, 2010\nPage 2\n4. Confidential Information includes all analyses, compilations, forecasts, studies or other documents prepared by you or your Representatives in\nconnection with your evaluation of pursuing a transaction with the Company. Confidential Information does not include any information which\nwas publicly available prior to your receipt of such information or thereafter became publicly available (other than as a result of disclosure by\nyou or any of your Representatives). Information shall be deemed “publicly available” if it becomes a matter of public knowledge or is\ncontained in materials available to the public or is obtained from any source other than the Company (or its directors, officers, employees,\nagents or outside advisors, including, without limitation, Deutsche Bank), provided that such source is not to your knowledge prohibited from\ndisclosing such information by a legal, contractual or fiduciary obligation to the Company and did not obtain the information from an entity or\nperson prohibited from disclosing such information by a legal, contractual or fiduciary obligation to the Company.\n5. You understand that we have endeavored to include in the Confidential Information those materials which we believe to be reliable and\nrelevant for the purpose of your evaluation, but you acknowledge that neither the Company nor Deutsche Bank nor any of their respective\ndirectors, officers, employees, agents or outside advisors makes any representation or warranty as to the accuracy or completeness of the\nConfidential Information and you agree that such persons shall have no liability to you or any of your Representatives resulting from any use\nof the Confidential Information. You understand that the Confidential Information is not being furnished for use in an offer or sale of securities\nof the Company and is not designed to satisfy the requirements of federal or state securities laws in connection with any offer or sale of such\nsecurities to you.\n6. In the event that you or any of your Representatives is requested in any proceeding to disclose any of the Confidential Information, you will\nprovide the Company with prompt prior notice so that the Company may seek a protective order or other appropriate remedy and/or waive\ncompliance with the provisions of this Agreement. In the event that the Company is unable to obtain such protective order or other appropriate\nremedy, you will furnish only that portion of the Confidential Information which you are advised by a written opinion of counsel is legally\nrequired, you will give the Company written notice of the information to be disclosed as far in advance as practicable, and you will exercise\ncommercially reasonable efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded the\nConfidential Information so disclosed.\nIntersil Corporation\nJanuary 7, 2010\nPage 3\n7. Without the prior written consent of the Company, you will not, and will not encourage or assist others to, for a period of three years\n(i) propose or disclose an intent to propose any form of business combination, acquisition, restructuring, recapitalization or other similar\ntransaction relating to the Company, (ii) acquire or offer, seek, propose or agree to acquire, directly or indirectly, by purchase or otherwise, any\nvoting securities or assets or direct or indirect rights or options to acquire any voting securities or assets of the Company, (iii) make, or in any\nway participate, directly or indirectly, in any “solicitation” of any “proxy” to vote (as such terms are used in the proxy rules of the Securities\nand Exchange Commission) or seek to advise or influence any person or entity with respect to the voting of any voting securities of the\nCompany, (iv) form, join or in any way participate, directly or indirectly, in a “group” within the meaning of Section 13(d)(3) of the Securities\nExchange Act of 1934, as amended, with respect to any voting securities of the Company, (v) enter into any discussions, negotiations,\narrangements or understandings with any third party with respect to any of the foregoing, (vi) disclose any intention, plan or arrangement\ninconsistent with the foregoing, (vii) otherwise act, alone or in concert with others, directly or indirectly, to seek control of the management,\nboard of directors, or policies of the Company, (viii) request the Company, directly or indirectly, to amend or waive any provisions of this\nparagraph.\n8. Each party hereto agrees that for a period of three years, it will not, directly or indirectly, solicit for employment or hire any employee of the\nother party hereto or any of its subsidiaries with whom it has had contact or who became known to it in connection with the evaluation of a\npossible transaction involving the Company; provided that the foregoing provision will not prevent either party from employing any such\nperson who contacts it on his or her own initiative without any direct or indirect solicitation by, or encouragement (not including a general\nsolicitation of employment not specifically directed towards employees of the Company) from, such party.\n9. Notwithstanding anything provided herein and any express or implied claim of exclusivity or proprietary rights, each party hereto hereby\nauthorizes each other party hereto (and each of their Representatives) to disclose to any and all persons, without limitation of any kind, the tax\ntreatment and tax structure of the transactions contemplated hereby and all materials of any kind (including opinions and other tax analyses)\nthat are provided to any of them relating to such tax treatment and tax structure. For purposes hereof, “tax treatment” means the purported or\nclaimed U.S. federal income tax treatment of the transaction and “tax structure” means any fact that may be relevant to understanding the\npurported or claimed U.S . federal income tax treatment of the transaction.\n10. Without impairing any other provision hereof, each party hereto will promptly advise the other party hereto of any prohibited disclosure or\nother breach of this Agreement.\n11. As to Paragraph 2 hereof, you understand and agree that money damages would not be a sufficient remedy for any breach of this Agreement by\nyou or your Representatives, and that the Company, its agents and representatives shall be entitled to specific performance and/or injunctive\nrelief as a remedy for any such breach. Such remedy shall not be deemed to be the exclusive remedy for any such breach of this Agreement but\nshall be in addition to all other remedies available at law or in equity. Each party hereto further agree that no failure or delay by either party, its\ndirectors, officers, employees, agents or outside advisors or representatives in exercising any right, power or privilege under this Agreement\nshall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of\nany right, power or privilege under this Agreement.\n12. Nothing in this Agreement shall impose any obligation upon you or us to consummate a transaction or to enter into any discussion or\nnegotiations with respect thereto.\nIntersil Corporation\nJanuary 7, 2010\nPage 4\n13. This Agreement shall be governed by the laws of the State of California.\nIf you are in agreement with the foregoing, please sign and return the enclosed copy of this letter which will constitute our agreement with respect to\nthe subject matter of this letter as of the date first above written.\nVery truly yours,\nTechwell, Inc.\n/s/ Mark Voll\nName\nChief Financial Officer\nTitle\nAGREED AND ACCEPTED TO:\nIntersil Corporation\nBy: /s/ Jonathan A. Kennedy\nIts: Chief Financial Officer	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nJanuary 7, 2010\nIntersil Corporation\n1001 Murphy Ranch Road\nMilpitas, CA 95035\nLadies and Gentlemen:\nWe understand from Deutsche Bank Securities Inc. (“Deutsche Bank”), our financial adviser, that you may be interested in pursuing a transaction\nwith Techwell, Inc. (the “Company”) on a mutually agreeable basis. In connection with your possible interest in a transaction with the Company,\nwe propose to furnish you with certain information related to the Company (herein referred to as the “Confidential Information”). Confidential\nInformation includes not only written information but also information transferred orally, visually, electronically or by any other means. The fact that\nsuch information has been delivered to you, that such a transaction is under consideration by the Company, that discussions or negotiations have\noccurred or are occurring regarding a possible transaction involving the Company and you, and the status of any such discussions or negotiations, are\nconsidered Confidential Information for purposes of this Agreement. In consideration of our furnishing you with the Confidential Information, and\nas a condition to such disclosure, you agree as follows:\n1. The Confidential Information will be used by you solely for the purpose of your evaluation of the desirability of your entering into a\ntransaction with the Company, and for no other purpose.\n2. You shall keep all Confidential Information secret and confidential and shall not, without the prior written consent of the Company, disclose it\nto anyone except to a limited group of your own employees, directors, officers, agents and outside advisors (“Representatives”) who are\nactually engaged in, and need to know such Confidential Information to perform, the evaluation referred to above, each of whom must be\nadvised of the confidential nature of the Confidential Information and of the terms of this Agreement and must agree to abide by such terms.\nYou shall be responsible for any breach of this Agreement by any of your Representatives.\n3. Upon any termination of your evaluation of pursuing a transaction with the Company or upon notice from the Company to you (i) you will\neither destroy or return to the Company the Confidential Information which is in tangible form, including any copies which you may have\nmade, and you will destroy all abstracts, summaries thereof or references thereto in your documents, and certify to us that you have done so,\nand (ii) neither you nor your Representatives will use any of the Confidential Information with respect to, or in furtherance of, your business,\nany of their respective businesses, or in the business of anyone else, whether or not in competition with the Company, or for any other purpose\nwhatsoever. Notwithstanding the preceding sentence, one copy of Confidential Information in tangible form that has been supplied to you may\nbe retained by your Legal Department for the sole purpose of maintaining a record of Confidential Information that has been disclosed to you\npursuant to this Agreement.\nIntersil Corporation January 7, 2010 Page 2 4. Confidential Information includes all analyses, compilations, forecasts, studies or other documents prepared by you or your Representatives in\nconnection with your evaluation of pursuing a transaction with the Company. Confidential Information does not include any information which\nwas publicly available prior to your receipt of such information or thereafter became publicly available (other than as a result of disclosure by\nyou or any of your Representatives). Information shall be deemed “publicly available” if it becomes a matter of public knowledge or is\ncontained in materials available to the public or is obtained from any source other than the Company (or its directors, officers, employees,\nagents or outside advisors, including, without limitation, Deutsche Bank), provided that such source is not to your knowledge prohibited from\ndisclosing such information by a legal, contractual or fiduciary obligation to the Company and did not obtain the information from an entity or\nperson prohibited from disclosing such information by a legal, contractual or fiduciary obligation to the Company.\nYou understand that we have endeavored to include in the Confidential Information those materials which we believe to be reliable and\nrelevant for the purpose of your evaluation, but you acknowledge that neither the Company nor Deutsche Bank nor any of their respective\ndirectors, officers, employees, agents or outside advisors makes any representation or warranty as to the accuracy or completeness of the\nConfidential Information and you agree that such persons shall have no liability to you or any of your Representatives resulting from any use\nof the Confidential Information. You understand that the Confidential Information is not being furnished for use in an offer or sale of securities\nof the Company and is not designed to satisfy the requirements of federal or state securities laws in connection with any offer or sale of such\nsecurities to you.\nIn the event that you or any of your Representatives is requested in any proceeding to disclose any of the Confidential Information, you will\nprovide the Company with prompt prior notice so that the Company may seek a protective order or other appropriate remedy and/or waive\ncompliance with the provisions of this Agreement. In the event that the Company is unable to obtain such protective order or other appropriate\nremedy, you will furnish only that portion of the Confidential Information which you are advised by a written opinion of counsel is legally\nrequired, you will give the Company written notice of the information to be disclosed as far in advance as practicable, and you will exercise\ncommercially reasonable efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded the\nConfidential Information so disclosed.\nIntersil Corporation January 7, 2010 Page 3 7.\n10. 11. 12. Without the prior written consent of the Company, you will not, and will not encourage or assist others to, for a period of three years\n(i) propose or disclose an intent to propose any form of business combination, acquisition, restructuring, recapitalization or other similar\ntransaction relating to the Company, (ii) acquire or offer, seek, propose or agree to acquire, directly or indirectly, by purchase or otherwise, any\nvoting securities or assets or direct or indirect rights or options to acquire any voting securities or assets of the Company, (iii) make, or in any\nway participate, directly or indirectly, in any “solicitation” of any “proxy” to vote (as such terms are used in the proxy rules of the Securities\nand Exchange Commission) or seek to advise or influence any person or entity with respect to the voting of any voting securities of the\nCompany, (iv) form, join or in any way participate, directly or indirectly, in a “group” within the meaning of Section 13(d)(3) of the Securities\nExchange Act of 1934, as amended, with respect to any voting securities of the Company, (v) enter into any discussions, negotiations,\narrangements or understandings with any third party with respect to any of the foregoing, (vi) disclose any intention, plan or arrangement\ninconsistent with the foregoing, (vii) otherwise act, alone or in concert with others, directly or indirectly, to seek control of the management,\nboard of directors, or policies of the Company, (viii) request the Company, directly or indirectly, to amend or waive any provisions of this\nparagraph.\nEach party hereto agrees that for a period of three years, it will not, directly or indirectly, solicit for employment or hire any employee of the\nother party hereto or any of its subsidiaries with whom it has had contact or who became known to it in connection with the evaluation of a\npossible transaction involving the Company; provided that the foregoing provision will not prevent either party from employing any such\nperson who contacts it on his or her own initiative without any direct or indirect solicitation by, or encouragement (not including a general\nsolicitation of employment not specifically directed towards employees of the Company) from, such party.\nNotwithstanding anything provided herein and any express or implied claim of exclusivity or proprietary rights, each party hereto hereby\nauthorizes each other party hereto (and each of their Representatives) to disclose to any and all persons, without limitation of any kind, the tax\ntreatment and tax structure of the transactions contemplated hereby and all materials of any kind (including opinions and other tax analyses)\nthat are provided to any of them relating to such tax treatment and tax structure. For purposes hereof, “tax treatment” means the purported or\nclaimed U.S. federal income tax treatment of the transaction and “tax structure” means any fact that may be relevant to understanding the\npurported or claimed U.S. federal income tax treatment of the transaction.\nWithout impairing any other provision hereof, each party hereto will promptly advise the other party hereto of any prohibited disclosure or\nother breach of this Agreement.\nAs to Paragraph 2 hereof, you understand and agree that money damages would not be a sufficient remedy for any breach of this Agreement by\nyou or your Representatives, and that the Company, its agents and representatives shall be entitled to specific performance and/or injunctive\nrelief as a remedy for any such breach. Such remedy shall not be deemed to be the exclusive remedy for any such breach of this Agreement but\nshall be in addition to all other remedies available at law or in equity. Each party hereto further agree that no failure or delay by either party, its\ndirectors, officers, employees, agents or outside advisors or representatives in exercising any right, power or privilege under this Agreement\nshall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of\nany right, power or privilege under this Agreement.\nNothing in this Agreement shall impose any obligation upon you or us to consummate a transaction or to enter into any discussion or\nnegotiations with respect thereto.\nIntersil Corporation\nJanuary 7, 2010\nPage 4\n13. This Agreement shall be governed by the laws of the State of California.\nIf you are in agreement with the foregoing, please sign and return the enclosed copy of this letter which will constitute our agreement with respect to\nthe subject matter of this letter as of the date first above written.\nVery truly yours,\nTechwell, Inc.\n/s/ Mark Voll\nName\nChief Financial Officer\nTitle\nAGREED AND ACCEPTED TO:\nIntersil Corporation\nBy: /s/ Jonathan A. Kennedy\nIts: Chief Financial Officer	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nJanuary 7, 2010\nIntersil Corporation\n1001 Murphy Ranch Road\nMilpitas, CA 95035\nLadies and Gentlemen:\nWe understand from Deutsche Bank Securities Inc. ("Deutsche Bank"), our financial adviser, that you may be interested in pursuing a transaction\nwith Techwell, Inc. (the "Company") on a mutually agreeable basis. In connection with your possible interest in a transaction with the Company,\nwe propose to furnish you with certain information related to the Company (herein referred to as the "Confidential Information"). Confidential\nInformation includes not only written information but also information transferred orally, visually, electronically or by any other means. The fact that\nsuch information has been delivered to you, that such a transaction is under consideration by the Company, that discussions or negotiations have\noccurred or are occurring regarding a possible transaction involving the Company and you, and the status of any such discussions or negotiations,\nare\nconsidered Confidential Information for purposes of this Agreement. In consideration of our furnishing you with the Confidential Information, and\nas a condition to such disclosure, you agree as follows:\n1.\nThe Confidential Information will be used by you solely for the purpose of your evaluation of the desirability of your entering into\na\ntransaction with the Company, and for no other purpose.\n2.\nYou shall keep all Confidential Information secret and confidential and shall not, without the prior written consent of the Company, disclose it\nto anyone except to a limited group of your own employees, directors, officers, agents and outside advisors ("Representatives") who are\nactually engaged in, and need to know such Confidential Information to perform, the evaluation referred to above, each of whom must be\nadvised of the confidential nature of the Confidential Information and of the terms of this Agreement and must agree to abide by such terms.\nYou shal be responsible for any breach of this Agreement by any of your Representatives.\n3.\nUpon any termination of your evaluation of pursuing a transaction with the Company or upon notice from the Company to you (i) you will\neither destroy or return to the Company the Confidential Information which is in tangible form, including any copies which you may have\nmade, and you will destroy all abstracts, summaries thereof or references thereto in your documents, and certify to us that you have done so,\nand (ii) neither you nor your Representatives will use any of the Confidential Information with respect to, or in furtherance of, your business,\nany of their respective businesses, or in the business of anyone else, whether or not in competition with the Company, or for any other purpose\nwhatsoever. Notwithstanding the preceding sentence, one copy of Confidential Information in tangible form that has been supplied to you may\nbe retained by your Legal Department for the sole purpose of maintaining a record of Confidential Information that has been disclosed to you\npursuant to this Agreement.\nIntersil Corporation\nJanuary 7, 2010\nPage 2\n4.\nConfidential Information includes all analyses, compilations, forecasts, studies or other documents prepared by you or your Representatives in\nconnection with your evaluation of pursuing a transaction with the Company. Confidential Information does not include any information\nwhich\nwas publicly available prior to your receipt of such information or thereafter became publicly available (other than as a result of disclosure by\nyou or any of your Representatives). Information shall be deemed "publicly available" if it becomes a matter of public knowledge or is\ncontained in materials available to the public or is obtained from any source other than the Company (or its directors, officers, employees,\nagents or outside advisors, including, without limitation, Deutsche Bank), provided that such source is not to your knowledge prohibited from\ndisclosing such information by a legal, contractual or fiduciary obligation to the Company and did not obtain the information from an entity or\nperson prohibited from disclosing such information by a legal, contractual or fiduciary obligation to the Company.\n5.\nYou understand that we have endeavored to include in the Confidential Information those materials which we believe to be reliable and\nrelevant for the purpose of your evaluation, but you acknowledge that neither the Company nor Deutsche Bank nor any of their respective\ndirectors, officers, employees, agents or outside advisors makes any representation or warranty as to the accuracy or completeness of the\nConfidential Information and you agree that such persons shall have no liability to you or any of your Representatives resulting from any use\nof\nthe Confidential Information. You understand that the Confidential Information is not being furnished for use in an offer or sale of securities\nof the Company and is not designed to satisfy the requirements of federal or state securities laws in connection with any offer or sale of such\nsecurities to you.\n6.\nIn the event that you or any of your Representatives is requested in any proceeding to disclose any of the Confidential Information, you will\nprovide the Company with prompt prior notice so that the Company may seek a protective order or other appropriate remedy and/or waive\ncompliance with the provisions of this Agreement. In the event that the Company is unable to obtain such protective order or other appropriate\nremedy, you will furnish only that portion of the Confidential Information which you are advised by a written opinion of counsel is legally\nrequired, you will give the Company written notice of the information to be disclosed as far in advance as practicable, and you will exercise\ncommercially reasonable efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded the\nConfidential Information so disclosed.\nIntersil Corporation\nJanuary 7, 2010\nPage 3\n7.\nWithout the prior written consent of the Company, you will not, and will not encourage or assist others to, for a period of three years\n(i) propose or disclose an intent to propose any form of business combination, acquisition, restructuring, recapitalization or other similar\ntransaction relating to the Company, (ii) acquire or offer, seek, propose or agree to acquire, directly or indirectly, by purchase or otherwise, any\nvoting securities or assets or direct or indirect rights or options to acquire any voting securities or assets of the Company, (iii) make, or in any\nway\nparticipate,\ndirectly\nor\nindirectly,\nin\nany\n"'solicitation"\nof\nany\n"proxy"\nto\nvote\n(as\nsuch\nterms\nare\nused\nin\nthe\nproxy\nrules\nof\nthe\nSecurities\nand Exchange Commission) or seek to advise or influence any person or entity with respect to the voting of any voting securities of the\nCompany, (iv) form, join or in any way participate, directly or indirectly, in a "group" within the meaning of Section 13(d)(3) of the Securities\nExchange Act of 1934, as amended, with respect to any voting securities of the Company, (v) enter into any discussions, negotiations,\narrangements or understandings with any third party with respect to any of the foregoing, (vi) disclose any intention, plan or arrangement\ninconsistent with the foregoing, (vii) otherwise act, alone or in concert with others, directly or indirectly, to seek control of the management,\nboard of directors, or policies of the Company, (viii) request the Company, directly or indirectly, to amend or waive any provisions of this\nparagraph.\n8.\nEach party hereto agrees that for a period of three years, it will not, directly or indirectly, solicit for employment or hire any employee of the\nother party hereto or any of its subsidiaries with whom it has had contact or who became known to it in connection with the evaluation of a\npossible transaction involving the Company; provided that the foregoing provision will not prevent either party from employing any such\nperson who contacts it on his or her own initiative without any direct or indirect solicitation by, or encouragement (not including a general\nsolicitation of employment not specifically directed towards employees of the Company) from, such party.\n9.\nNotwithstanding anything provided herein and any express or implied claim of exclusivity or proprietary rights, each party hereto hereby\nauthorizes each other party hereto (and each of their Representatives) to disclose to any and all persons, without limitation of any kind, the tax\ntreatment and tax structure of the transactions contemplated hereby and all materials of any kind (including opinions and other tax analyses)\nthat are provided to any of them relating to such tax treatment and tax structure. For purposes hereof, "tax treatment" means the purported or\nclaimed U.S. federal income tax treatment of the transaction and "tax structure" means any fact that may be relevant to understanding the\npurported or claimed U.S. federal income tax treatment of the transaction.\n10. Without impairing any other provision hereof, each party hereto will promptly advise the other party hereto of any prohibited disclosure or\nother breach of this Agreement.\n11.\nAs to Paragraph 2 hereof, you understand and agree that money damages would not be a sufficient remedy for any breach of this Agreement by\nyou or your Representatives, and that the Company, its agents and representatives shall be entitled to specific performance and/or injunctive\nrelief as a remedy for any such breach. Such remedy shall not be deemed to be the exclusive remedy for any such breach of this Agreement but\nshall be in addition to all other remedies available at law or in equity. Each party hereto further agree that no failure or delay by either party, its\ndirectors, officers, employees, agents or outside advisors or representatives in exercising any right, power or privilege under this Agreement\nshall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of\nany right, power or privilege under this Agreement.\n12.\nNothing in this Agreement shall impose any obligation upon you or us to consummate a transaction or to enter into any discussion or\nnegotiations with respect thereto.\nIntersil Corporation\nJanuary 7, 2010\nPage 4\n13.\nThis Agreement shall be governed by the laws of the State of California.\nIf you are in agreement with the foregoing, please sign and return the enclosed copy of this letter which will constitute our agreement with respect to\nthe subject matter of this letter as of the date first above written.\nVery truly yours,\nTechwell, Inc.\n/s/ Mark Voll\nName\nChief Financial Officer\nTitle\nAGREED AND ACCEPTED TO:\nIntersil Corporation\nBy: /s/ Jonathan A. Kennedy\nIts: Chief Financial Officer	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nJanuary 7, 2010\nIntersil Corporation\n1001 Murphy Ranch Road\nMilpitas, CA 95035\nLadies and Gentlemen:\nWe understand from Deutsche Bank Securities Inc. (“Deutsche Bank”), our financial adviser, that you may be interested in pursuing a transaction\nwith Techwell, Inc. (the “Company”) on a mutually agreeable basis. In connection with your possible interest in a transaction with the Company,\nwe propose to furnish you with certain information related to the Company (herein referred to as the “Confidential Information”). Confidential\nInformation includes not only written information but also information transferred orally, visually, electronically or by any other means. The fact that\nsuch information has been delivered to you, that such a transaction is under consideration by the Company, that discussions or negotiations have\noccurred or are occurring regarding a possible transaction involving the Company and you, and the status of any such discussions or negotiations, are\nconsidered Confidential Information for purposes of this Agreement. In consideration of our furnishing you with the Confidential Information, and\nas a condition to such disclosure, you agree as follows:\n1. The Confidential Information will be used by you solely for the purpose of your evaluation of the desirability of your entering into a\ntransaction with the Company, and for no other purpose.\n2. You shall keep all Confidential Information secret and confidential and shall not, without the prior written consent of the Company, disclose it\nto anyone except to a limited group of your own employees, directors, officers, agents and outside advisors (“Representatives”) who are\nactually engaged in, and need to know such Confidential Information to perform, the evaluation referred to above, each of whom must be\nadvised of the confidential nature of the Confidential Information and of the terms of this Agreement and must agree to abide by such terms.\nYou shall be responsible for any breach of this Agreement by any of your Representatives.\n3. Upon any termination of your evaluation of pursuing a transaction with the Company or upon notice from the Company to you (i) you will\neither destroy or return to the Company the Confidential Information which is in tangible form, including any copies which you may have\nmade, and you will destroy all abstracts, summaries thereof or references thereto in your documents, and certify to us that you have done so,\nand (ii) neither you nor your Representatives will use any of the Confidential Information with respect to, or in furtherance of, your business,\nany of their respective businesses, or in the business of anyone else, whether or not in competition with the Company, or for any other purpose\nwhatsoever. Notwithstanding the preceding sentence, one copy of Confidential Information in tangible form that has been supplied to you may\nbe retained by your Legal Department for the sole purpose of maintaining a record of Confidential Information that has been disclosed to you\npursuant to this Agreement.\nIntersil Corporation\nJanuary 7, 2010\nPage 2\n4. Confidential Information includes all analyses, compilations, forecasts, studies or other documents prepared by you or your Representatives in\nconnection with your evaluation of pursuing a transaction with the Company. Confidential Information does not include any information which\nwas publicly available prior to your receipt of such information or thereafter became publicly available (other than as a result of disclosure by\nyou or any of your Representatives). Information shall be deemed “publicly available” if it becomes a matter of public knowledge or is\ncontained in materials available to the public or is obtained from any source other than the Company (or its directors, officers, employees,\nagents or outside advisors, including, without limitation, Deutsche Bank), provided that such source is not to your knowledge prohibited from\ndisclosing such information by a legal, contractual or fiduciary obligation to the Company and did not obtain the information from an entity or\nperson prohibited from disclosing such information by a legal, contractual or fiduciary obligation to the Company.\n5. You understand that we have endeavored to include in the Confidential Information those materials which we believe to be reliable and\nrelevant for the purpose of your evaluation, but you acknowledge that neither the Company nor Deutsche Bank nor any of their respective\ndirectors, officers, employees, agents or outside advisors makes any representation or warranty as to the accuracy or completeness of the\nConfidential Information and you agree that such persons shall have no liability to you or any of your Representatives resulting from any use\nof the Confidential Information. You understand that the Confidential Information is not being furnished for use in an offer or sale of securities\nof the Company and is not designed to satisfy the requirements of federal or state securities laws in connection with any offer or sale of such\nsecurities to you.\n6. In the event that you or any of your Representatives is requested in any proceeding to disclose any of the Confidential Information, you will\nprovide the Company with prompt prior notice so that the Company may seek a protective order or other appropriate remedy and/or waive\ncompliance with the provisions of this Agreement. In the event that the Company is unable to obtain such protective order or other appropriate\nremedy, you will furnish only that portion of the Confidential Information which you are advised by a written opinion of counsel is legally\nrequired, you will give the Company written notice of the information to be disclosed as far in advance as practicable, and you will exercise\ncommercially reasonable efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded the\nConfidential Information so disclosed.\nIntersil Corporation\nJanuary 7, 2010\nPage 3\n7. Without the prior written consent of the Company, you will not, and will not encourage or assist others to, for a period of three years\n(i) propose or disclose an intent to propose any form of business combination, acquisition, restructuring, recapitalization or other similar\ntransaction relating to the Company, (ii) acquire or offer, seek, propose or agree to acquire, directly or indirectly, by purchase or otherwise, any\nvoting securities or assets or direct or indirect rights or options to acquire any voting securities or assets of the Company, (iii) make, or in any\nway participate, directly or indirectly, in any “solicitation” of any “proxy” to vote (as such terms are used in the proxy rules of the Securities\nand Exchange Commission) or seek to advise or influence any person or entity with respect to the voting of any voting securities of the\nCompany, (iv) form, join or in any way participate, directly or indirectly, in a “group” within the meaning of Section 13(d)(3) of the Securities\nExchange Act of 1934, as amended, with respect to any voting securities of the Company, (v) enter into any discussions, negotiations,\narrangements or understandings with any third party with respect to any of the foregoing, (vi) disclose any intention, plan or arrangement\ninconsistent with the foregoing, (vii) otherwise act, alone or in concert with others, directly or indirectly, to seek control of the management,\nboard of directors, or policies of the Company, (viii) request the Company, directly or indirectly, to amend or waive any provisions of this\nparagraph.\n8. Each party hereto agrees that for a period of three years, it will not, directly or indirectly, solicit for employment or hire any employee of the\nother party hereto or any of its subsidiaries with whom it has had contact or who became known to it in connection with the evaluation of a\npossible transaction involving the Company; provided that the foregoing provision will not prevent either party from employing any such\nperson who contacts it on his or her own initiative without any direct or indirect solicitation by, or encouragement (not including a general\nsolicitation of employment not specifically directed towards employees of the Company) from, such party.\n9. Notwithstanding anything provided herein and any express or implied claim of exclusivity or proprietary rights, each party hereto hereby\nauthorizes each other party hereto (and each of their Representatives) to disclose to any and all persons, without limitation of any kind, the tax\ntreatment and tax structure of the transactions contemplated hereby and all materials of any kind (including opinions and other tax analyses)\nthat are provided to any of them relating to such tax treatment and tax structure. For purposes hereof, “tax treatment” means the purported or\nclaimed U.S. federal income tax treatment of the transaction and “tax structure” means any fact that may be relevant to understanding the\npurported or claimed U.S . federal income tax treatment of the transaction.\n10. Without impairing any other provision hereof, each party hereto will promptly advise the other party hereto of any prohibited disclosure or\nother breach of this Agreement.\n11. As to Paragraph 2 hereof, you understand and agree that money damages would not be a sufficient remedy for any breach of this Agreement by\nyou or your Representatives, and that the Company, its agents and representatives shall be entitled to specific performance and/or injunctive\nrelief as a remedy for any such breach. Such remedy shall not be deemed to be the exclusive remedy for any such breach of this Agreement but\nshall be in addition to all other remedies available at law or in equity. Each party hereto further agree that no failure or delay by either party, its\ndirectors, officers, employees, agents or outside advisors or representatives in exercising any right, power or privilege under this Agreement\nshall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of\nany right, power or privilege under this Agreement.\n12. Nothing in this Agreement shall impose any obligation upon you or us to consummate a transaction or to enter into any discussion or\nnegotiations with respect thereto.\nIntersil Corporation\nJanuary 7, 2010\nPage 4\n13. This Agreement shall be governed by the laws of the State of California.\nIf you are in agreement with the foregoing, please sign and return the enclosed copy of this letter which will constitute our agreement with respect to\nthe subject matter of this letter as of the date first above written.\nVery truly yours,\nTechwell, Inc.\n/s/ Mark Voll\nName\nChief Financial Officer\nTitle\nAGREED AND ACCEPTED TO:\nIntersil Corporation\nBy: /s/ Jonathan A. Kennedy\nIts: Chief Financial Officer
d4e4bca7fd106026b6e128d21eccfbeb.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 8 d407949dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nConfidentiality Agreement\nThis Confidentiality Agreement (“Agreement”) is entered into between Related Companies, 60 Columbus Circle, New York, NY 10023 and\nKSW, Inc., (“KSW”), located at 37-16 23 Street, Long Island City, NY 11101 as of the date set forth on the signature page hereto.\nWHEREAS, the Parties intend to discuss a possible transaction or business arrangement between the parties and certain third parties, in which\neither has an interest or is affiliated.\nNOW, THEREFORE, it is therefore agreed that:\n1. Each party will hold in complete confidence any information disclosed by the other party (collectively, the “Information”), and will\nnot, directly or indirectly, reveal, disseminate or disclose this information to any person other than to such of their respective officers, directors,\nemployees, attorneys, advisors or representatives as need to know such information in the ordinary course of business in connection with any\nproposed transaction or arrangement (such persons being referred to collectively as the Recipient’s “Representatives”), who are informed of the\nconfidential nature of the Information and who agree to be bound by and act only in accordance with the terms and conditions of this Agreement to\nthe same extent as if they were parties hereto. The provisions of this Agreement shall be inoperative as to any portion of the Information which (i) is\nor becomes generally available to the public other than as a result of a disclosure by either party or its Representatives; (ii) becomes available on a\nnon-confidential basis and not in contravention of applicable law from a source which is not bound by a confidential relationship with or obligation\nof confidentiality to either party or by a confidentiality or other similar agreement.\n2. If any breach of this Agreement occurs, either party would be irreparably and immediately harmed and could not be made whole by\nmonetary damages. Accordingly, in addition to any other remedy to which it may be entitled in law or equity, either party shall be entitled to an\ninjunction or injunctions to prevent breaches of this Agreement and/or to compel specific performance of this Agreement and the other company will\nnot oppose the granting of such relief.\n3. In the event either party wishes to disclose the information to a third party, it may do so only with the written consent of the other\nparty and after the third party executes a Confidentiality Agreement similar to this Agreement.\n4. This Agreement shall be binding on and inure to the benefit of the parties hereto, their parents, subsidiaries, affiliates, successors and\nassigns. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York without regard to its rules of\nconflicts of laws.\nIN WITNESS WHEREOF, the parties hereto, being duly authorized, have executed and delivered this Agreement on the date indicated below.\nTHE RELATED COMPANIES, L.P.\nKSW, INC.\nBy: /s/ Richard O’Toole\nBy: /s/ Floyd Warkol\nName: Richard O’Toole\nName: Floyd Warkol\nTitle: EVP\nTitle: CEO\nDated: June 22, 2012\nrd	EX-99.(D)(3) 8 d407949dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nConfidentiality Agreement\nThis Confidentiality Agreement (“Agreement”) is entered into between Related Companies, 60 Columbus Circle, New York, NY 10023 and\nKSW, Inc., (“KSW?), located at 37-16 23rd Street, Long Island City, NY 11101 as of the date set forth on the signature page hereto.\nWHEREAS, the Parties intend to discuss a possible transaction or business arrangement between the parties and certain third parties, in which\neither has an interest or is affiliated.\nNOW, THEREFORE, it is therefore agreed that:\n1. Each party will hold in complete confidence any information disclosed by the other party (collectively, the “Information™), and will\nnot, directly or indirectly, reveal, disseminate or disclose this information to any person other than to such of their respective officers, directors,\nemployees, attorneys, advisors or representatives as need to know such information in the ordinary course of business in connection with any\nproposed transaction or arrangement (such persons being referred to collectively as the Recipient’s “Representatives”), who are informed of the\nconfidential nature of the Information and who agree to be bound by and act only in accordance with the terms and conditions of this Agreement to\nthe same extent as if they were parties hereto. The provisions of this Agreement shall be inoperative as to any portion of the Information which (i) is\nor becomes generally available to the public other than as a result of a disclosure by either party or its Representatives; (ii) becomes available on a\nnon-confidential basis and not in contravention of applicable law from a source which is not bound by a confidential relationship with or obligation\nof confidentiality to either party or by a confidentiality or other similar agreement.\n2. If any breach of this Agreement occurs, either party would be irreparably and immediately harmed and could not be made whole by\nmonetary damages. Accordingly, in addition to any other remedy to which it may be entitled in law or equity, either party shall be entitled to an\ninjunction or injunctions to prevent breaches of this Agreement and/or to compel specific performance of this Agreement and the other company will\nnot oppose the granting of such relief.\n3. In the event either party wishes to disclose the information to a third party, it may do so only with the written consent of the other\nparty and after the third party executes a Confidentiality Agreement similar to this Agreement.\n4. This Agreement shall be binding on and inure to the benefit of the parties hereto, their parents, subsidiaries, affiliates, successors and\nassigns. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York without regard to its rules of\nconflicts of laws.\nIN WITNESS WHEREOF, the parties hereto, being duly authorized, have executed and delivered this Agreement on the date indicated below.\nTHE RELATED COMPANIES, L.P. KSW, INC.\nBy: /s/ Richard O’Toole By: /s/ Floyd Warkol\nName: Richard O’Toole Name: Floyd Warkol\nTitle: EVP Title: CEO\nDated: June 22, 2012	EX-99.(D)(3) 8 d407949dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nConfidentiality Agreement\nThis Confidentiality Agreement ("Agreement") is entered into between Related Companies, 60 Columbus Circle, New York, NY 10023 and\nKSW, Inc., ("KSW"), located at 37-16 23rd Street, Long Island City, NY 11101 as of the date set forth on the signature page hereto.\nWHEREAS, the Parties intend to discuss a possible transaction or business arrangement between the parties and certain third parties, in which\neither has an interest or is affiliated.\nNOW, THEREFORE, it is therefore agreed that:\n1. Each party will hold in complete confidence any information disclosed by the other party (collectively, the "Information"), and will\nnot, directly or indirectly, reveal, disseminate or disclose this information to any person other than to such of their respective officers, directors,\nemployees, attorneys, advisors or representatives as need to know such information in the ordinary course of business in connection with any\nproposed transaction or arrangement (such persons being referred to collectively as the Recipient's "Representatives"), who are informed of the\nconfidential nature of the Information and who agree to be bound by and act only in accordance with the terms and conditions of this Agreement to\nthe same extent as if they were parties hereto. The provisions of this Agreement shall be inoperative as to any portion of the Information which (i)\nis\nor becomes generally available to the public other than as a result of a disclosure by either party or its Representatives; (ii) becomes available on a\nnon-confidential basis and not in contravention of applicable law from a source which is not bound by a confidential relationship with or obligation\nof confidentiality to either party or by a confidentiality or other similar agreement.\n2. If any breach of this Agreement occurs, either party would be irreparably and immediately harmed and could not be made whole\nby\nmonetary damages. Accordingly, in addition to any other remedy to which it may be entitled in law or equity, either party shall be entitled to an\ninjunction or injunctions to prevent breaches of this Agreement and/or to compel specific performance of this Agreement and the other company will\nnot oppose the granting of such relief.\n3. In the event either party wishes to disclose the information to a third party, it may do so only with the written consent of the other\nparty and after the third party executes a Confidentiality Agreement similar to this Agreement.\n4. This Agreement shall be binding on and inure to the benefit of the parties hereto, their parents, subsidiaries, affiliates, successors and\nassigns. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York without regard to its rules of\nconflicts of laws.\nIN WITNESS WHEREOF, the parties hereto, being duly authorized, have executed and delivered this Agreement on the date indicated below.\nTHE RELATED COMPANIES, L.P.\nKSW, INC.\nBy: /s/ Richard O'Toole\nBy: /s/ Floyd Warkol\nName: Richard O'Toole\nName: Floyd Warkol\nTitle: EVP\nTitle: CEO\nDated: June 22, 2012	EX-99.(D)(3) 8 d407949dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nConfidentiality Agreement\nThis Confidentiality Agreement (“Agreement”) is entered into between Related Companies, 60 Columbus Circle, New York, NY 10023 and\nKSW, Inc., (“KSW”), located at 37-16 23 Street, Long Island City, NY 11101 as of the date set forth on the signature page hereto.\nWHEREAS, the Parties intend to discuss a possible transaction or business arrangement between the parties and certain third parties, in which\neither has an interest or is affiliated.\nNOW, THEREFORE, it is therefore agreed that:\n1. Each party will hold in complete confidence any information disclosed by the other party (collectively, the “Information”), and will\nnot, directly or indirectly, reveal, disseminate or disclose this information to any person other than to such of their respective officers, directors,\nemployees, attorneys, advisors or representatives as need to know such information in the ordinary course of business in connection with any\nproposed transaction or arrangement (such persons being referred to collectively as the Recipient’s “Representatives”), who are informed of the\nconfidential nature of the Information and who agree to be bound by and act only in accordance with the terms and conditions of this Agreement to\nthe same extent as if they were parties hereto. The provisions of this Agreement shall be inoperative as to any portion of the Information which (i) is\nor becomes generally available to the public other than as a result of a disclosure by either party or its Representatives; (ii) becomes available on a\nnon-confidential basis and not in contravention of applicable law from a source which is not bound by a confidential relationship with or obligation\nof confidentiality to either party or by a confidentiality or other similar agreement.\n2. If any breach of this Agreement occurs, either party would be irreparably and immediately harmed and could not be made whole by\nmonetary damages. Accordingly, in addition to any other remedy to which it may be entitled in law or equity, either party shall be entitled to an\ninjunction or injunctions to prevent breaches of this Agreement and/or to compel specific performance of this Agreement and the other company will\nnot oppose the granting of such relief.\n3. In the event either party wishes to disclose the information to a third party, it may do so only with the written consent of the other\nparty and after the third party executes a Confidentiality Agreement similar to this Agreement.\n4. This Agreement shall be binding on and inure to the benefit of the parties hereto, their parents, subsidiaries, affiliates, successors and\nassigns. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York without regard to its rules of\nconflicts of laws.\nIN WITNESS WHEREOF, the parties hereto, being duly authorized, have executed and delivered this Agreement on the date indicated below.\nTHE RELATED COMPANIES, L.P.\nKSW, INC.\nBy: /s/ Richard O’Toole\nBy: /s/ Floyd Warkol\nName: Richard O’Toole\nName: Floyd Warkol\nTitle: EVP\nTitle: CEO\nDated: June 22, 2012\nrd
d50e7765801e0f6498b3621adbcb8e31.pdf	effective_date jurisdiction party term	EX-10 10 chhb8kshareexchange103confid.htm\nAs a supplementary part of Employment Contract of the company, the NON-\nCOMPETITION/ NON-DISCLOSURE Agreement only applies to those employees\nwho have a significant responsibility in areas of R&D, manufacturing, quality\nassurance, marketing, accounting, and relevant GMP supervision .The other ordinary\nstaff are not subject to signing of the attached rules.\nNON-DISCLOSURE\nNON-COMPETITION\nAgreement\nParty A: JGAD company\nParty B: (employee)\nAccording to the related laws, this agreement is made by and between the two parties\nthrough mutual consultation, the terms and conditions as follows:\n1. Right and Obligation of Party B:\n1-1.Party B is entitled to no-disclosure of the company’s confidential, relating to\ntechnical processes, formulae, machines, Business mode, suppliers of raw material,\ndistributors, marketing, products in R&D, financial information, and relevant GMP\ndocument. Party B hereby agrees not to disclose to third party at any time, either\nintentionally or inadvertently, except approval by Party A according to the\nrequirement of work.\nOnly authorized officials of the company are permitted to respond to inquiries for\ncompany information from media, governments, the financial community, and others.\n1-2.If there would be some achievements for Intellectual Property Right, which is\nrelated with the Party B’s employment here, Party B agrees that such application\nshould be done at the name of the company.\n1-3.Party B shall not engage in any business which is competitive with Party A, no\nmatter for third entity or for Party B oneself.\n1-4. After the termination of employment of Party B, Party B shall continue to be\nbound by the terms of the confidentiality provisions for two years from the date of\ntermination, including not to be engaged in a company which is directly competitive\nwith Party A in the same products either being marketed or in development.\n2. Right and obligation of Party A\nDuring the two years beginning from the termination of Party B’s employment, Party\nA is responsible for paying Party B the relevant compensation monthly. The standards\nare based on Party B’ individual salary, except for original bonus and benefits.\n3. Liability for Breach of the Agreement\nAny act of breach of contract committed shall be dealt with in accordance with the\nrelevant regulations or laws in force at the time when such act is committed.\nIf the reconciliation couldn’t be made between the both sides, when dispute occurs,\nthe arbitration or resolution by legal procedure is available.\n(1). Both sides agree to arbitrate it by the Dalian Committee of Labor Arbitration, or\n(2). Both parties agree to sue the lawsuit in the court of city where the contract is\nsigned or implemented.\nParty A:\nParty B:\nDalian Jingang-Andi Bio-Products Co.,Ltd.\nSignature:\nDate:\nDate:	EX-10 10 chhb8kshareexchange103confid.htm\nAs a supplementary part of Employment Contract of the company, the NON-\nCOMPETITION/ NON-DISCLOSURE Agreement only applies to those employees\nwho have a significant responsibility in areas of R&D, manufacturing, quality\nassurance, marketing, accounting, and relevant GMP supervision .The other ordinary\nstaff are not subject to signing of the attached rules.\nNON-DISCLOSURE\nNON-COMPETITION\nAgreement\nParty A: JGAD company\nParty B: (employee)\nAccording to the related laws, this agreement is made by and between the two parties\nthrough mutual consultation, the terms and conditions as follows:\n1. Right and Obligation of Party B:\n1-1.Party B is entitled to no-disclosure of the company’s confidential, relating to\ntechnical processes, formulae, machines, Business mode, suppliers of raw material,\ndistributors, marketing, products in R&D, financial information, and relevant GMP\ndocument. Party B hereby agrees not to disclose to third party at any time, either\nintentionally or inadvertently, except approval by Party A according to the\nrequirement of work.\nOnly authorized officials of the company are permitted to respond to inquiries for\ncompany information from media, governments, the financial community, and others.\n1-2.If there would be some achievements for Intellectual Property Right, which is\nrelated with the Party B’s employment here, Party B agrees that such application\nshould be done at the name of the company.\n1-3.Party B shall not engage in any business which is competitive with Party A, no\nmatter for third entity or for Party B oneself.\n1-4. After the termination of employment of Party B, Party B shall continue to be\nbound by the terms of the confidentiality provisions for two years from the date of\ntermination, including not to be engaged in a company which is directly competitive\nwith Party A in the same products either being marketed or in development.\n2. Right and obligation of Party A\nDuring the two years beginning from the termination of Party B’s employment, Party\nA is responsible for paying Party B the relevant compensation monthly. The standards\nare based on Party B’ individual salary, except for original bonus and benefits.\n3. Liability for Breach of the Agreement\nAny act of breach of contract committed shall be dealt with in accordance with the\nrelevant regulations or laws in force at the time when such act is committed.\nIf the reconciliation couldn’t be made between the both sides, when dispute occurs,\nthe arbitration or resolution by legal procedure is available.\n(1). Both sides agree to arbitrate it by the Dalian Committee of Labor Arbitration, or\n(2). Both parties agree to sue the lawsuit in the court of city where the contract is\nsigned or implemented.\nParty A: Party B:\nDalian Jingang-Andi Bio-Products Co.,Ltd. Signature:\nDate: Date:	EX-10 10 chhb8kshareexchange103c\nAs a supplementary part of Employment Contract of the company, the NON-\nCOMPETITION/ NON-DISCLOSURE Agreement only applies to those employees\nwho have a significant responsibility in areas of R&D, manufacturing, quality\nassurance, marketing, accounting, and relevant GMP supervision .The other ordinary\nstaff are not subject to signing of the attached rules.\nNON-DISCLOSURE\nNON-COMPETITION\nAgreement\nParty A: JGAD company\nParty B: (employee)\nAccording to the related laws, this agreement is made by and between the two parties\nthrough mutual consultation, the terms and conditions as follows:\n1. Right and Obligation of Party B:\n-1.Party B is entitled to no-disclosure of the company's confidential, relating to\ntechnical processes, formulae, machines, Business mode, suppliers of raw material,\ndistributors, marketing, products in R&D, financial information, and relevant GMP\ndocument. Party B hereby agrees not to disclose to third party at any time, either\nintentionally or inadvertently, except approval by Party A according to the\nrequirement of work.\nOnly authorized officials of the company are permitted to respond to inquiries for\ncompany information from media, governments, the financial community, and others.\n1-2.If there would be some achievements for Intellectual Property Right, which is\nrelated with the Party B's employment here, Party B agrees that such application\nshould be done at the name of the company.\n1-3.Party B shall not engage in any business which is competitive with Party A, no\nmatter for third entity or for Party B oneself.\n1-4. After the termination of employment of Party B, Party B shall continue to be\nbound by the terms of the confidentiality provisions for two years from the date of\ntermination, including not to be engaged in a company which is directly competitive\nwith Party A in the same products either being marketed or in development.\n2. Right and obligation of Party A\nDuring the two years beginning from the termination of Party B's employment, Party\nA is responsible for paying Party B the relevant compensation monthly. The standards\nare based on Party B' individual salary, except for original bonus and benefits.\n3. Liability for Breach of the Agreement\nAny act of breach of contract committed shall be dealt with in accordance with the\nrelevant regulations or laws in force at the time when such act is committed.\nIf the reconciliation couldn't be made between the both sides, when dispute occurs,\nthe arbitration or resolution by legal procedure is available.\n(1). Both sides agree to arbitrate it by the Dalian Committee of Labor Arbitration, or\n(2). Both parties agree to sue the lawsuit in the court of city where the contract is\nsigned or implemented.\nParty A:\nParty B:\nDalian Jingang-And Bio-Products Co.,Ltd.\nSignature:\nDate:\nDate:	EX-10 10 chhb8kshareexchange103confid.htm\nAs a supplementary part of Employment Contract of the company, the NON-\nCOMPETITION/ NON-DISCLOSURE Agreement only applies to those employees\nwho have a significant responsibility in areas of R&D, manufacturing, quality\nassurance, marketing, accounting, and relevant GMP supervision .The other ordinary\nstaff are not subject to signing of the attached rules.\nNON-DISCLOSURE\nNON-COMPETITION\nAgreement\nParty A: JGAD company\nParty B: (employee)\nAccording to the related laws, this agreement is made by and between the two parties\nthrough mutual consultation, the terms and conditions as follows:\n1. Right and Obligation of Party B:\n1-1.Party B is entitled to no-disclosure of the company’s confidential, relating to\ntechnical processes, formulae, machines, Business mode, suppliers of raw material,\ndistributors, marketing, products in R&D, financial information, and relevant GMP\ndocument. Party B hereby agrees not to disclose to third party at any time, either\nintentionally or inadvertently, except approval by Party A according to the\nrequirement of work.\nOnly authorized officials of the company are permitted to respond to inquiries for\ncompany information from media, governments, the financial community, and others.\n1-2.If there would be some achievements for Intellectual Property Right, which is\nrelated with the Party B’s employment here, Party B agrees that such application\nshould be done at the name of the company.\n1-3.Party B shall not engage in any business which is competitive with Party A, no\nmatter for third entity or for Party B oneself.\n1-4. After the termination of employment of Party B, Party B shall continue to be\nbound by the terms of the confidentiality provisions for two years from the date of\ntermination, including not to be engaged in a company which is directly competitive\nwith Party A in the same products either being marketed or in development.\n2. Right and obligation of Party A\nDuring the two years beginning from the termination of Party B’s employment, Party\nA is responsible for paying Party B the relevant compensation monthly. The standards\nare based on Party B’ individual salary, except for original bonus and benefits.\n3. Liability for Breach of the Agreement\nAny act of breach of contract committed shall be dealt with in accordance with the\nrelevant regulations or laws in force at the time when such act is committed.\nIf the reconciliation couldn’t be made between the both sides, when dispute occurs,\nthe arbitration or resolution by legal procedure is available.\n(1). Both sides agree to arbitrate it by the Dalian Committee of Labor Arbitration, or\n(2). Both parties agree to sue the lawsuit in the court of city where the contract is\nsigned or implemented.\nParty A:\nParty B:\nDalian Jingang-Andi Bio-Products Co.,Ltd.\nSignature:\nDate:\nDate:
d5d5a179035c14cdc340ef96e0080a7a.pdf	effective_date jurisdiction party term	EX-99.(D)(4) 10 dex99d4.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the “Agreement”) is made as of June 6, 2010, between General Electric Company, a New York corporation\n(“GE”), and Clarient, Inc. with reference to the following background.\nA. The parties have engaged in and expect to continue to engage in discussions involving the exploration and evaluation of a potential\nrelationship or transaction (the “Transaction”).\nB. In connection with the consideration of such Transaction, each party (as to information disclosed by it, the “Disclosing Party”) is prepared\nto furnish the other party (as to information received by it, the “Receiving Party”) with certain confidential and proprietary information concerning\nits business and properties.\nC. All such information furnished by a Disclosing Party, whether furnished before or after the date of this Agreement and irrespective of the\nform of communication, and all Notes (as defined below) are collectively referred to in this Agreement as “Evaluation Material”.\nD. The parties wish to define their respective rights and obligations respect to the Evaluation Material.\nE. For purposes of this Agreement, the term “Representative” shall mean a party’s affiliates, agents, professional advisors or authorized\nrepresentatives.\nNOW, THEREFORE, in consideration of the premises and the agreements contained in this Agreement, the parties agree as follows:\n1. The Receiving Party acknowledges and agrees that it is imperative that all Evaluation Material received by it remain confidential.\nAccordingly, the Receiving Party agrees that prior to being given access to the Disclosing Party’s Evaluation Material, each of the Receiving Party’s\nRepresentatives shall be informed of the confidential nature of such Evaluation Material and agree to be bound by the terms of this Agreement. The\nReceiving Party agrees to be responsible for any breach of this Agreement by it or its Representatives to the same extent as though such person were\na party hereto.\n2. To maintain the confidentiality of the Evaluation Material received by it, the Receiving Party agrees:\n(a) not to use, or allow the use for any purpose of, any such Evaluation Material, including any notes, summaries, reports, analyses, or\nother material derived by the Receiving Party, its affiliates, or its Representatives in whole or in part from such\nEvaluation Material in whatever form maintained (collectively, “Notes”), in each case except for the sole purpose of evaluating a possible\nTransaction and the terms thereof;\n(b) not to disclose, or allow disclosure of, any such Evaluation Material except to its Representatives, in each case only to the extent\nnecessary to permit such Representatives to assist the Receiving Party in making the evaluations referred to in clause (a) above; and\n(c) not to disclose or allow disclosure to persons other than its Representatives that (i) such Evaluation Material has been made\navailable to the Receiving Party, (ii) the Receiving Party, or its Representatives have inspected any Evaluation Material, (iii) the parties may be\nconsidering a possible Transaction, or any of the terms, conditions, or other facts with respect to any such Transaction, including the status\nthereof, or (iv) the parties have had, are having, or propose to have any discussions or negotiations with respect thereto, provided that the\nReceiving Party may make such disclosure if such disclosure is required by law or legal process pursuant to the provisions of paragraph 6\nhereof.\nThe term “person” as used in this Agreement shall be broadly interpreted to include, without limitation, the media and any individual, corporation,\ncompany, partnership, or other entity or group. GE’s obligations to keep the Evaluation Material confidential as set forth in this Agreement shall be\ndeemed not to be breached by any disclosure by NBC Universal, Inc., its affiliates or any other affiliate of GE in the ordinary course of its business\nof disseminating news and information; provided, that such disclosure does not result from a breach of the obligations of GE or any of its\nRepresentatives hereunder.\n3. With respect to all Evaluation Material, the Receiving Party agrees that the Disclosing Party and its Representatives make no\nrepresentations or warranties, express or implied, as to the accuracy or completeness of such material, and that only those representations and\nwarranties that may be made in a definitive written agreement for a Transaction shall have any legal effect.\n4. If either party decides that it does not wish to proceed with a Transaction, it will promptly inform the other party of that decision. In\naddition, the Disclosing Party may elect at any time by notice to the Receiving Party to terminate further access by the Receiving Party to, and such\nparty’s review of, the Evaluation Material disclosed to it. The Receiving Party agrees that in either such case, upon the written request of the\nDisclosing Party, it will promptly return or destroy all Evaluation Material disclosed to it, without retaining any copy thereof, except that one copy of\nsuch Evaluation Material and all Notes included therein may be retained in the legal files of the Receiving Party solely for compliance purposes or\nfor the purpose of defending or maintaining any litigation (including any administrative proceeding) relating to this Agreement or such Evaluation\nMaterial. No such termination or return or destruction of such Evaluation\n-2-\nMaterial will affect the Receiving Party’s obligations under this Agreement, all of which obligations shall continue in effect.\n5. This Agreement shall not apply to any portion of the Evaluation Material disclosed to the Receiving Party to the extent such information\n(i) becomes generally available to the public other than as a result of an unauthorized disclosure by the Receiving Party or its Representatives,\n(ii) was available to the Receiving Party on a non-confidential basis prior to its disclosure to such party by the Disclosing Party or its\nRepresentatives, (iii) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or its\nRepresentatives, provided the Receiving Party had no actual knowledge that such person was under a legal obligation to refrain from such\ndisclosure, or (iv) was independently developed by the Receiving Party without reference to such Evaluation Material.\n6. If either party or its Representatives is requested or required to disclose any Evaluation Material received by it or to make any other\ndisclosure mentioned in Section 2(c) above, such party agrees to provide the Disclosing Party with prompt notice of each such request, to the extent\npractical, so that the Disclosing Party may seek an appropriate protective order or waive compliance by the Receiving Party with the provisions of\nthis Agreement or both. If, absent the entry of a protective order or the receipt of a waiver under this Agreement, the Receiving Party or its\nRepresentatives are legally compelled or required to disclose such Evaluation Material, the Receiving Party may disclose such information to the\npersons and to the extent required without liability under this Agreement.\n7. The terms of this Agreement may be modified or waived only by a separate writing signed by each of the parties that expressly modifies\nor waives any such term.\n8. This Agreement shall be binding upon the parties and their respective Representatives. It shall be construed in accordance with the internal\nsubstantive laws of the State of New York without regard to principles of choice or conflicts of law.\n9. In the event of any controversy, claim or dispute between the parties arising out of or relating to this Agreement or any alleged breach\nthereof, the parties shall submit such dispute to non-binding mediation in the Borough of Manhattan, County of New York, State of New York for a\nperiod of 60 days prior to initiating any legal action in connection therewith, provided that nothing herein shall prevent the party seeking\nenforcement from seeking temporary or preliminary injunctive relief from a state or federal court sitting in the Borough of Manhattan, County of\nNew York, State of New York (which court shall have exclusive jurisdiction over any such request for relief) to the extent necessary to protect itself\nfrom any irreparable harm that it would suffer during the 60-day mediation period. If the parties are unable to agree upon a mediator within five\nbusiness days after receipt of written notice of a claim, either party may apply to the American Arbitration Association for the appointment of a\nmediator, which\n-3-\nappointment shall be final and binding on both parties. The mediation shall be conducted pursuant to the mediation rules of the American Arbitration\nAssociation then in effect, unless the parties agree to an alternative procedure. Each party shall participate in good faith in such mediation, shall bear\nits own costs of such mediation and shall share the cost of the mediator equally.\n10. If any dispute cannot be resolved pursuant to the preceding paragraph within the 60-day mediation period, either party may within 30\ndays after the end of the 60-day mediation period, demand that the dispute be submitted to binding arbitration by so notifying the other party, in\nwriting (the “Arbitration”). The Arbitration shall be conducted in the Borough of Manhattan, County of New York, State of New York, before a\nsingle arbitrator. The arbitrator shall be appointed, and the Arbitration shall be conducted, under the rules of the American Arbitration Association in\neffect at the time of such arbitration, provided that the arbitrator shall have no power to award punitive exemplary or consequential damages to any\nparty to the Arbitration. The arbitrator’s decision shall be final, conclusive and binding on the parties to the Arbitration, and shall be the exclusive\nforum for any claims arising out of this Agreement or the subject matter hereof.\n11. This Agreement represents the entire agreement of the parties concerning the subject matter hereof and supersedes any prior or\ncontemporaneous oral (or any prior written) agreements concerning the subject matter hereof.\n-4-\nIN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed on the date first written above.\nGENERAL ELECTRIC COMPANY\nBy: /S/ MICHAEL A. JONES\nMichael A. Jones\nExecutive Vice President,\nBusiness Development\nGE Healthcare\nCLARIENT, INC.\nBy: /S/ RONALD A. ANDREWS\nName: Ronald A. Andrews\nTitle: Chief Executive Officer\n-5-	EX-99.(D)(4) 10 dex99d4.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the “Agreement”) is made as of June 6, 2010, between General Electric Company, a New York corporation\n(“GE”), and Clarient, Inc. with reference to the following background.\nA. The parties have engaged in and expect to continue to engage in discussions involving the exploration and evaluation of a potential\nrelationship or transaction (the “Transaction”).\nB. In connection with the consideration of such Transaction, each party (as to information disclosed by it, the “Disclosing Party”) is prepared\nto furnish the other party (as to information received by it, the “Receiving Party”) with certain confidential and proprietary information concerning\nits business and properties.\nC. All such information furnished by a Disclosing Party, whether furnished before or after the date of this Agreement and irrespective of the\nform of communication, and all Notes (as defined below) are collectively referred to in this Agreement as “Evaluation Material”.\nD. The parties wish to define their respective rights and obligations respect to the Evaluation Material.\nE. For purposes of this Agreement, the term “Representative” shall mean a party’s affiliates, agents, professional advisors or authorized\nrepresentatives.\nNOW, THEREFORE, in consideration of the premises and the agreements contained in this Agreement, the parties agree as follows:\n1. The Receiving Party acknowledges and agrees that it is imperative that all Evaluation Material received by it remain confidential.\nAccordingly, the Receiving Party agrees that prior to being given access to the Disclosing Party’s Evaluation Material, each of the Receiving Party’s\nRepresentatives shall be informed of the confidential nature of such Evaluation Material and agree to be bound by the terms of this Agreement. The\nReceiving Party agrees to be responsible for any breach of this Agreement by it or its Representatives to the same extent as though such person were\na party hereto.\n2. To maintain the confidentiality of the Evaluation Material received by it, the Receiving Party agrees:\n(a) not to use, or allow the use for any purpose of, any such Evaluation Material, including any notes, summaries, reports, analyses, or\nother material derived by the Receiving Party, its affiliates, or its Representatives in whole or in part from such\nEvaluation Material in whatever form maintained (collectively, “Notes™), in each case except for the sole purpose of evaluating a possible\nTransaction and the terms thereof;\n(b) not to disclose, or allow disclosure of, any such Evaluation Material except to its Representatives, in each case only to the extent\nnecessary to permit such Representatives to assist the Receiving Party in making the evaluations referred to in clause (a) above; and\n(c) not to disclose or allow disclosure to persons other than its Representatives that (i) such Evaluation Material has been made\navailable to the Receiving Party, (ii) the Receiving Party, or its Representatives have inspected any Evaluation Material, (iii) the parties may be\nconsidering a possible Transaction, or any of the terms, conditions, or other facts with respect to any such Transaction, including the status\nthereof, or (iv) the parties have had, are having, or propose to have any discussions or negotiations with respect thereto, provided that the\nReceiving Party may make such disclosure if such disclosure is required by law or legal process pursuant to the provisions of paragraph 6\nhereof.\nThe term “person” as used in this Agreement shall be broadly interpreted to include, without limitation, the media and any individual, corporation,\ncompany, partnership, or other entity or group. GE’s obligations to keep the Evaluation Material confidential as set forth in this Agreement shall be\ndeemed not to be breached by any disclosure by NBC Universal, Inc., its affiliates or any other affiliate of GE in the ordinary course of its business\nof disseminating news and information; provided, that such disclosure does not result from a breach of the obligations of GE or any of its\nRepresentatives hereunder.\n3. With respect to all Evaluation Material, the Receiving Party agrees that the Disclosing Party and its Representatives make no\nrepresentations or warranties, express or implied, as to the accuracy or completeness of such material, and that only those representations and\nwarranties that may be made in a definitive written agreement for a Transaction shall have any legal effect.\n4. If either party decides that it does not wish to proceed with a Transaction, it will promptly inform the other party of that decision. In\naddition, the Disclosing Party may elect at any time by notice to the Receiving Party to terminate further access by the Receiving Party to, and such\nparty’s review of, the Evaluation Material disclosed to it. The Receiving Party agrees that in either such case, upon the written request of the\nDisclosing Party, it will promptly return or destroy all Evaluation Material disclosed to it, without retaining any copy thereof, except that one copy of\nsuch Evaluation Material and all Notes included therein may be retained in the legal files of the Receiving Party solely for compliance purposes or\nfor the purpose of defending or maintaining any litigation (including any administrative proceeding) relating to this Agreement or such Evaluation\nMaterial. No such termination or return or destruction of such Evaluation\n-\nMaterial will affect the Receiving Party’s obligations under this Agreement, all of which obligations shall continue in effect.\n5. This Agreement shall not apply to any portion of the Evaluation Material disclosed to the Receiving Party to the extent such information\n(i) becomes generally available to the public other than as a result of an unauthorized disclosure by the Receiving Party or its Representatives,\n(ii) was available to the Receiving Party on a non-confidential basis prior to its disclosure to such party by the Disclosing Party or its\nRepresentatives, (iii) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or its\nRepresentatives, provided the Receiving Party had no actual knowledge that such person was under a legal obligation to refrain from such\ndisclosure, or (iv) was independently developed by the Receiving Party without reference to such Evaluation Material.\n6. If either party or its Representatives is requested or required to disclose any Evaluation Material received by it or to make any other\ndisclosure mentioned in Section 2(c) above, such party agrees to provide the Disclosing Party with prompt notice of each such request, to the extent\npractical, so that the Disclosing Party may seek an appropriate protective order or waive compliance by the Receiving Party with the provisions of\nthis Agreement or both. If, absent the entry of a protective order or the receipt of a waiver under this Agreement, the Receiving Party or its\nRepresentatives are legally compelled or required to disclose such Evaluation Material, the Receiving Party may disclose such information to the\npersons and to the extent required without liability under this Agreement.\n7. The terms of this Agreement may be modified or waived only by a separate writing signed by each of the parties that expressly modifies\nor waives any such term.\n8. This Agreement shall be binding upon the parties and their respective Representatives. It shall be construed in accordance with the internal\nsubstantive laws of the State of New York without regard to principles of choice or conflicts of law.\n9. In the event of any controversy, claim or dispute between the parties arising out of or relating to this Agreement or any alleged breach\nthereof, the parties shall submit such dispute to non-binding mediation in the Borough of Manhattan, County of New York, State of New York for a\nperiod of 60 days prior to initiating any legal action in connection therewith, provided that nothing herein shall prevent the party seeking\nenforcement from seeking temporary or preliminary injunctive relief from a state or federal court sitting in the Borough of Manhattan, County of\nNew York, State of New York (which court shall have exclusive jurisdiction over any such request for relief) to the extent necessary to protect itself\nfrom any irreparable harm that it would suffer during the 60-day mediation period. If the parties are unable to agree upon a mediator within five\nbusiness days after receipt of written notice of a claim, either party may apply to the American Arbitration Association for the appointment of a\nmediator, which\n_3-\nappointment shall be final and binding on both parties. The mediation shall be conducted pursuant to the mediation rules of the American Arbitration\nAssociation then in effect, unless the parties agree to an alternative procedure. Each party shall participate in good faith in such mediation, shall bear\nits own costs of such mediation and shall share the cost of the mediator equally.\n10. If any dispute cannot be resolved pursuant to the preceding paragraph within the 60-day mediation period, either party may within 30\ndays after the end of the 60-day mediation period, demand that the dispute be submitted to binding arbitration by so notifying the other party, in\nwriting (the “Arbitration”). The Arbitration shall be conducted in the Borough of Manhattan, County of New York, State of New York, before a\nsingle arbitrator. The arbitrator shall be appointed, and the Arbitration shall be conducted, under the rules of the American Arbitration Association in\neffect at the time of such arbitration, provided that the arbitrator shall have no power to award punitive exemplary or consequential damages to any\nparty to the Arbitration. The arbitrator’s decision shall be final, conclusive and binding on the parties to the Arbitration, and shall be the exclusive\nforum for any claims arising out of this Agreement or the subject matter hereof.\n11. This Agreement represents the entire agreement of the parties concerning the subject matter hereof and supersedes any prior or\ncontemporaneous oral (or any prior written) agreements concerning the subject matter hereof.\n4-\nIN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed on the date first written above. GENERAL ELECTRIC COMPANY\nBy: /S/ MICHAEL A. JONES Michael A. Jones\nExecutive Vice President,\nBusiness Development\nGE Healthcare\nCLARIENT, INC.\nBy: /S/ RONALD A. ANDREWS Name: Ronald A. Andrews\nTitle: Chief Executive Officer	EX-99.(D)(4) 10 dex99d4.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the "Agreement") is made as of June 6, 2010, between General Electric Company, a New York corporation\n("GE"), and Clarient, Inc. with reference to the following background.\nA. The parties have engaged in and expect to continue to engage in discussions involving the exploration and evaluation of a potential\nrelationship or transaction (the "Transaction").\nB. In connection with the consideration of such Transaction, each party (as to information disclosed by it, the "Disclosing Party") is prepared\nto furnish the other party (as to information received by it, the "Receiving Party") with certain confidential and proprietary information concerning\nits business and properties.\nC. All such information furnished by a Disclosing Party, whether furnished before or after the date of this Agreement and irrespective of the\nform of communication, and all Notes (as defined below) are collectively referred to in this Agreement as "Evaluation Material".\nD.\nThe parties wish to define their respective rights and obligations respect to the Evaluation Material.\nE.\nFor purposes of this Agreement, the term "Representative" shall mean a party's affiliates, agents, professional advisors or authorized\nrepresentatives.\nNOW, THEREFORE, in consideration of the premises and the agreements contained in this Agreement, the parties agree as follows:\n1.\nThe Receiving Party acknowledges and agrees that it is imperative that all Evaluation Material received by it remain confidential.\nAccordingly, the Receiving Party agrees that prior to being given access to the Disclosing Party's Evaluation Material, each of the Receiving Party's\nRepresentatives shall be informed of the confidential nature of such Evaluation Material and agree to be bound by the terms of this Agreement. The\nReceiving Party agrees to be responsible for any breach of this Agreement by it or its Representatives to the same extent as though such person were\na party hereto.\n2.\nTo maintain the confidentiality of the Evaluation Material received by it, the Receiving Party agrees:\n(a) not to use, or allow the use for any purpose of, any such Evaluation Material, including any notes, summaries, reports, analyses, or\nother material derived by the Receiving Party, its affiliates, or its Representatives in whole or in part from such\nEvaluation Material in whatever form maintained (collectively, "Notes"), in each case except for the sole purpose of evaluating a possible\nTransaction and the terms thereof;\n(b) not to disclose, or allow disclosure of, any such Evaluation Material except to its Representatives, in each case only to the extent\nnecessary to permit such Representatives to assist the Receiving Party in making the evaluations referred to in clause (a) above; and\n(c) not to disclose or allow disclosure to persons other than its Representatives that (i) such Evaluation Material has been made\navailable to the Receiving Party, (ii) the Receiving Party, or its Representatives have inspected any Evaluation Material, (iii) the parties may be\nconsidering a possible Transaction, or any of the terms, conditions, or other facts with respect to any such Transaction, including the status\nthereof, or (iv) the parties have had, are having, or propose to have any discussions or negotiations with respect thereto, provided that the\nReceiving Party may make such disclosure if such disclosure is required by law or legal process pursuant to the provisions of paragraph 6\nhereof.\nThe term "person" as used in this Agreement shall be broadly interpreted to include, without limitation, the media and any individual, corporation,\ncompany, partnership, or other entity or group. GE'S obligations to keep the Evaluation Material confidential as set forth in this Agreement shall be\ndeemed not to be breached by any disclosure by NBC Universal, Inc., its affiliates or any other affiliate of GE in the ordinary course of its business\nof disseminating news and information; provided, that such disclosure does not result from a breach of the obligations of GE or any of its\nRepresentatives hereunder.\n3. With respect to all Evaluation Material, the Receiving Party agrees that the Disclosing Party and its Representatives make no\nrepresentations or warranties, express or implied, as to the accuracy or completeness of such material, and that only those representations and\nwarranties that may be made in a definitive written agreement for a Transaction shall have any legal effect.\n4. If either party decides that it does not wish to proceed with a Transaction, it will promptly inform the other party of that decision.\nIn\naddition, the Disclosing Party may elect at any time by notice to the Receiving Party to terminate further access by the Receiving Party to, and such\nparty's review of, the Evaluation Material disclosed to it. The Receiving Party agrees that in either such case, upon the written request of the\nDisclosing Party, it will promptly return or destroy all Evaluation Material disclosed to it, without retaining any copy thereof, except that one copy of\nsuch\nEvaluation Material and all Notes included therein may be retained in the legal files of the Receiving Party solely for compliance purposes or\nfor the purpose of defending or maintaining any litigation (including any administrative proceeding) relating to this Agreement or such Evaluation\nMaterial. No such termination or return or destruction of such Evaluation\n-2-\nMaterial will affect the Receiving Party's obligations under this Agreement, all of which obligations shall continue in effect.\n5.\nThis Agreement shall not apply to any portion of the Evaluation Material disclosed to the Receiving Party to the extent such information\n(i) becomes generally available to the public other than as a result of an unauthorized disclosure by the Receiving Party or its Representatives,\n(ii) was available to the Receiving Party on a non-confidential basis prior to its disclosure to such party by the Disclosing Party or its\nRepresentatives, (iii) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or its\nRepresentatives, provided the Receiving Party had no actual knowledge that such person was under a legal obligation to refrain from such\ndisclosure, or (iv) was independently developed by the Receiving Party without reference to such Evaluation Material.\n6. If either party or its Representatives is requested or required to disclose any Evaluation Material received by it or to make any other\ndisclosure mentioned in Section 2(c) above, such party agrees to provide the Disclosing Party with prompt notice of each such request, to the extent\npractical, so that the Disclosing Party may seek an appropriate protective order or waive compliance by the Receiving Party with the provisions of\nthis Agreement or both. If, absent the entry of a protective order or the receipt of a waiver under this Agreement, the Receiving Party or its\nRepresentatives are legally compelled or required to disclose such Evaluation Material, the Receiving Party may disclose such information to\nthe\npersons and to the extent required without liability under this Agreement.\n7. The terms of this Agreement may be modified or waived only by a separate writing signed by each of the parties that expressly modifies\nor waives any such term.\n8. This Agreement shall be binding upon the parties and their respective Representatives. It shall be construed in accordance with the internal\nsubstantive laws of the State of New York without regard to principles of choice or conflicts of law.\n9. In the event of any controversy, claim or dispute between the parties arising out of or relating to this Agreement or any alleged breach\nthereof, the parties shall submit such dispute to non-binding mediation in the Borough of Manhattan, County of New York, State of New York for a\nperiod of 60 days prior to initiating any legal action in connection therewith, provided that nothing herein shall prevent the party seeking\nenforcement from seeking temporary or preliminary injunctive relief from a state or federal court sitting in the Borough of Manhattan, County of\nNew York, State of New York (which court shall have exclusive jurisdiction over any such request for relief) to the extent necessary to protect itself\nfrom any irreparable harm that it would suffer during the 60-day mediation period. If the parties are unable to agree upon a mediator within five\nbusiness days after receipt of written notice of a claim, either party may apply to the American Arbitration Association for the appointment of\na\nmediator, which\n-3-\nappointment shall be final and binding on both parties. The mediation shall be conducted pursuant to the mediation rules of the American Arbitration\nAssociation then in effect, unless the parties agree to an alternative procedure. Each party shall participate in good faith in such mediation, shall bear\nits own costs of such mediation and shall share the cost of the mediator equally.\n10. If any dispute cannot be resolved pursuant to the preceding paragraph within the 60-day mediation period, either party may within 30\ndays after the end of the 60-day mediation period, demand that the dispute be submitted to binding arbitration by so notifying the other party, in\nwriting (the "Arbitration"). The Arbitration shall be conducted in the Borough of Manhattan, County of New York, State of New York, before\na\nsingle arbitrator. The arbitrator shall be appointed, and the Arbitration shall be conducted, under the rules of the American Arbitration Association in\neffect at the time of such arbitration, provided that the arbitrator shall have no power to award punitive exemplary or consequential damages to any\nparty to the Arbitration. The arbitrator's decision shall be final, conclusive and binding on the parties to the Arbitration, and shall be the exclusive\nforum for any claims arising out of this Agreement or the subject matter hereof.\n11. This Agreement represents the entire agreement of the parties concerning the subject matter hereof and supersedes any prior or\ncontemporaneous oral (or any prior written) agreements concerning the subject matter hereof.\n-4-\nIN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed on the date first written above.\nGENERAL ELECTRIC COMPANY\nBy:\n/S/ MICHAEL A. JONES\nMichael A. Jones\nExecutive Vice President,\nBusiness Development\nGE Healthcare\nCLARIENT, INC.\nBy:\n/S/ RONALD A. ANDREWS\nName: Ronald A. Andrews\nTitle: Chief Executive Officer\n-5-	EX-99.(D)(4) 10 dex99d4.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the “Agreement”) is made as of June 6, 2010, between General Electric Company, a New York corporation\n(“GE”), and Clarient, Inc. with reference to the following background.\nA. The parties have engaged in and expect to continue to engage in discussions involving the exploration and evaluation of a potential\nrelationship or transaction (the “Transaction”).\nB. In connection with the consideration of such Transaction, each party (as to information disclosed by it, the “Disclosing Party”) is prepared\nto furnish the other party (as to information received by it, the “Receiving Party”) with certain confidential and proprietary information concerning\nits business and properties.\nC. All such information furnished by a Disclosing Party, whether furnished before or after the date of this Agreement and irrespective of the\nform of communication, and all Notes (as defined below) are collectively referred to in this Agreement as “Evaluation Material”.\nD. The parties wish to define their respective rights and obligations respect to the Evaluation Material.\nE. For purposes of this Agreement, the term “Representative” shall mean a party’s affiliates, agents, professional advisors or authorized\nrepresentatives.\nNOW, THEREFORE, in consideration of the premises and the agreements contained in this Agreement, the parties agree as follows:\n1. The Receiving Party acknowledges and agrees that it is imperative that all Evaluation Material received by it remain confidential.\nAccordingly, the Receiving Party agrees that prior to being given access to the Disclosing Party’s Evaluation Material, each of the Receiving Party’s\nRepresentatives shall be informed of the confidential nature of such Evaluation Material and agree to be bound by the terms of this Agreement. The\nReceiving Party agrees to be responsible for any breach of this Agreement by it or its Representatives to the same extent as though such person were\na party hereto.\n2. To maintain the confidentiality of the Evaluation Material received by it, the Receiving Party agrees:\n(a) not to use, or allow the use for any purpose of, any such Evaluation Material, including any notes, summaries, reports, analyses, or\nother material derived by the Receiving Party, its affiliates, or its Representatives in whole or in part from such\nEvaluation Material in whatever form maintained (collectively, “Notes”), in each case except for the sole purpose of evaluating a possible\nTransaction and the terms thereof;\n(b) not to disclose, or allow disclosure of, any such Evaluation Material except to its Representatives, in each case only to the extent\nnecessary to permit such Representatives to assist the Receiving Party in making the evaluations referred to in clause (a) above; and\n(c) not to disclose or allow disclosure to persons other than its Representatives that (i) such Evaluation Material has been made\navailable to the Receiving Party, (ii) the Receiving Party, or its Representatives have inspected any Evaluation Material, (iii) the parties may be\nconsidering a possible Transaction, or any of the terms, conditions, or other facts with respect to any such Transaction, including the status\nthereof, or (iv) the parties have had, are having, or propose to have any discussions or negotiations with respect thereto, provided that the\nReceiving Party may make such disclosure if such disclosure is required by law or legal process pursuant to the provisions of paragraph 6\nhereof.\nThe term “person” as used in this Agreement shall be broadly interpreted to include, without limitation, the media and any individual, corporation,\ncompany, partnership, or other entity or group. GE’s obligations to keep the Evaluation Material confidential as set forth in this Agreement shall be\ndeemed not to be breached by any disclosure by NBC Universal, Inc., its affiliates or any other affiliate of GE in the ordinary course of its business\nof disseminating news and information; provided, that such disclosure does not result from a breach of the obligations of GE or any of its\nRepresentatives hereunder.\n3. With respect to all Evaluation Material, the Receiving Party agrees that the Disclosing Party and its Representatives make no\nrepresentations or warranties, express or implied, as to the accuracy or completeness of such material, and that only those representations and\nwarranties that may be made in a definitive written agreement for a Transaction shall have any legal effect.\n4. If either party decides that it does not wish to proceed with a Transaction, it will promptly inform the other party of that decision. In\naddition, the Disclosing Party may elect at any time by notice to the Receiving Party to terminate further access by the Receiving Party to, and such\nparty’s review of, the Evaluation Material disclosed to it. The Receiving Party agrees that in either such case, upon the written request of the\nDisclosing Party, it will promptly return or destroy all Evaluation Material disclosed to it, without retaining any copy thereof, except that one copy of\nsuch Evaluation Material and all Notes included therein may be retained in the legal files of the Receiving Party solely for compliance purposes or\nfor the purpose of defending or maintaining any litigation (including any administrative proceeding) relating to this Agreement or such Evaluation\nMaterial. No such termination or return or destruction of such Evaluation\n-2-\nMaterial will affect the Receiving Party’s obligations under this Agreement, all of which obligations shall continue in effect.\n5. This Agreement shall not apply to any portion of the Evaluation Material disclosed to the Receiving Party to the extent such information\n(i) becomes generally available to the public other than as a result of an unauthorized disclosure by the Receiving Party or its Representatives,\n(ii) was available to the Receiving Party on a non-confidential basis prior to its disclosure to such party by the Disclosing Party or its\nRepresentatives, (iii) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or its\nRepresentatives, provided the Receiving Party had no actual knowledge that such person was under a legal obligation to refrain from such\ndisclosure, or (iv) was independently developed by the Receiving Party without reference to such Evaluation Material.\n6. If either party or its Representatives is requested or required to disclose any Evaluation Material received by it or to make any other\ndisclosure mentioned in Section 2(c) above, such party agrees to provide the Disclosing Party with prompt notice of each such request, to the extent\npractical, so that the Disclosing Party may seek an appropriate protective order or waive compliance by the Receiving Party with the provisions of\nthis Agreement or both. If, absent the entry of a protective order or the receipt of a waiver under this Agreement, the Receiving Party or its\nRepresentatives are legally compelled or required to disclose such Evaluation Material, the Receiving Party may disclose such information to the\npersons and to the extent required without liability under this Agreement.\n7. The terms of this Agreement may be modified or waived only by a separate writing signed by each of the parties that expressly modifies\nor waives any such term.\n8. This Agreement shall be binding upon the parties and their respective Representatives. It shall be construed in accordance with the internal\nsubstantive laws of the State of New York without regard to principles of choice or conflicts of law.\n9. In the event of any controversy, claim or dispute between the parties arising out of or relating to this Agreement or any alleged breach\nthereof, the parties shall submit such dispute to non-binding mediation in the Borough of Manhattan, County of New York, State of New York for a\nperiod of 60 days prior to initiating any legal action in connection therewith, provided that nothing herein shall prevent the party seeking\nenforcement from seeking temporary or preliminary injunctive relief from a state or federal court sitting in the Borough of Manhattan, County of\nNew York, State of New York (which court shall have exclusive jurisdiction over any such request for relief) to the extent necessary to protect itself\nfrom any irreparable harm that it would suffer during the 60-day mediation period. If the parties are unable to agree upon a mediator within five\nbusiness days after receipt of written notice of a claim, either party may apply to the American Arbitration Association for the appointment of a\nmediator, which\n-3-\nappointment shall be final and binding on both parties. The mediation shall be conducted pursuant to the mediation rules of the American Arbitration\nAssociation then in effect, unless the parties agree to an alternative procedure. Each party shall participate in good faith in such mediation, shall bear\nits own costs of such mediation and shall share the cost of the mediator equally.\n10. If any dispute cannot be resolved pursuant to the preceding paragraph within the 60-day mediation period, either party may within 30\ndays after the end of the 60-day mediation period, demand that the dispute be submitted to binding arbitration by so notifying the other party, in\nwriting (the “Arbitration”). The Arbitration shall be conducted in the Borough of Manhattan, County of New York, State of New York, before a\nsingle arbitrator. The arbitrator shall be appointed, and the Arbitration shall be conducted, under the rules of the American Arbitration Association in\neffect at the time of such arbitration, provided that the arbitrator shall have no power to award punitive exemplary or consequential damages to any\nparty to the Arbitration. The arbitrator’s decision shall be final, conclusive and binding on the parties to the Arbitration, and shall be the exclusive\nforum for any claims arising out of this Agreement or the subject matter hereof.\n11. This Agreement represents the entire agreement of the parties concerning the subject matter hereof and supersedes any prior or\ncontemporaneous oral (or any prior written) agreements concerning the subject matter hereof.\n-4-\nIN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed on the date first written above.\nGENERAL ELECTRIC COMPANY\nBy: /S/ MICHAEL A. JONES\nMichael A. Jones\nExecutive Vice President,\nBusiness Development\nGE Healthcare\nCLARIENT, INC.\nBy: /S/ RONALD A. ANDREWS\nName: Ronald A. Andrews\nTitle: Chief Executive Officer\n-5-
d6947a6968c827f2b7619ab33f2ea1e6.pdf	effective_date jurisdiction party	Exhibit (d)(3)\nSTRICTLY PRIVATE AND CONFIDENTIAL\nApril 24, 2017\nWabash National Corporation\n1000 Sagamore Parkway South\nLafayette, IN 47905\nAttention:\nMr. James Scarcelli\nVP, Corporate Strategy\nCONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction with Project REDHAWK, a Delaware corporation,\nand/or its subsidiaries and affiliates (collectively, the “Company”) (the “Transaction”), the Company is prepared to make\navailable to you certain confidential and proprietary information relating to the Company which is not available to the\ngeneral public. All such information, whether written, oral or electronic, whether furnished before or after the date of this\nletter agreement by the Company or its Representatives (as defined below), and regardless of the manner or form in\nwhich it is furnished, is collectively referred to in this letter agreement as “Evaluation Material.” The term “Evaluation\nMaterial” also includes all notes, summaries, analyses, compilations, studies, or other documents or media prepared by\nyou or your Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to you\nor your Representatives pursuant to this letter agreement. The term Evaluation Material does not include, however,\ninformation which (a) is or becomes generally available to the public other than as a result of direct or indirect disclosure\nby you or your Representatives in violation of the terms of this letter agreement or (b) prior to its disclosure to you by the\nCompany or its Representatives, is or becomes available to you on a non-confidential basis from a source (other than the\nCompany or any of its Representatives) which is not prohibited from disclosing such information to you by a legal,\ncontractual or fiduciary obligation to the Company or any other Person. The term “Representatives” means, as to any\nPerson, its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants,\nconsultants, financial advisors and non-convertible debt sources of financing for the Transaction, and additionally as to\nyou, upon receiving prior written consent of the Company, which consent may be given, withheld or conditioned in its sole\ndiscretion, your potential sources of equity financing for the Transaction). The term “Person” as used in this letter\nagreement is broadly interpreted to include any corporation, company, partnership or other legal or business entity or any\nindividual.\nAccordingly, in consideration of the Evaluation Material being furnished to you, you agree that:\n1.\nExcept as required by Law (and only after compliance with paragraph 2 below), unless otherwise agreed\nto in writing by the Company, you will (a) not use the Evaluation Material for any purpose other than in connection with\nyour evaluation of the Transaction, (b) keep the Evaluation Material confidential and not disclose any Evaluation Material\nin any manner whatsoever and (c) not disclose to any other Person the fact the Evaluation Material exists or has been\nmade available, that you are considering the Transaction, or that discussions or negotiations are taking place concerning\nthe Transaction or involving the Company or any of the terms, conditions, or other facts with respect thereto (including,\nwithout limitation, the status thereof); provided, however, that such information may be disclosed to your Representatives\nwho are actively and directly participating in your evaluation of the Transaction or who otherwise need to know such\ninformation for the sole purpose of evaluating the Transaction and who are informed by you of the confidential nature of\nthe information. Without limiting the generality of the foregoing, you further agree that you will not, directly or indirectly,\nshare the Evaluation Material with or enter into any agreement, arrangement or understanding, or have any discussions\nwhich would reasonably be expected to lead to such an agreement, arrangement or understanding with any other\nperson, including other potential bidders and equity financing sources (other than your Representatives as permitted\nabove) regarding a possible transaction involving the Company without the prior written consent of the Company, which\nconsent may be given, withheld or conditioned in its sole discretion, and only upon such person executing a\nconfidentiality agreement in favor of the Company with terms and conditions consistent with this letter agreement. You\nwill cause your Representatives to observe the terms of this letter agreement and you will be responsible for any breach\nof this letter agreement by your Representatives. The term “Law,” means any applicable law or regulation (including,\nwithout limitation, any rule, regulation or policy statement of any organized securities exchange, market or automated\nquotation system on which any of your securities are listed or quoted) or by valid legal process.\n2.\nIf you or any of your Representatives are requested pursuant to, or required by, Law to disclose any\nEvaluation Material or other information concerning the Company or the Transaction, prior to any such disclosure, you\nwill, to the extent not legally prohibited, notify the Company promptly of any such request or requirement so that the\nCompany may seek a protective order or other appropriate remedy, or, in the Company's sole discretion, waive\ncompliance with the terms of this letter agreement. If no such protective order or other remedy is obtained or the\nCompany waives compliance with the terms of this letter agreement, you or your Representatives will disclose only that\nportion of the Evaluation Material or other information which you are advised in writing by your legal counsel is legally\nrequired to be disclosed and will use best efforts to ensure any such information so disclosed will be accorded\nconfidential treatment.\n3.\nIf you decide that you do not wish to proceed with the Transaction, you will promptly inform the Company\nof that decision. In that case, or at any time upon the request of the Company for any reason, you will promptly (and in\nany case, within 14 days of the Company's request) (a) deliver to the Company all Evaluation Material furnished to you or\nyour Representatives by or on behalf of the Company (and all copies thereof whether received from the Company or\nmade by you or your Representatives) and (b) either deliver to the Company or destroy all materials prepared by you or\nyour Representatives which constitute Evaluation Material without retaining a copy of any such material, with any such\ndestruction certified to the Company in writing by your authorized officer supervising such destruction; provided that you\nmay retain, in a secure location, a copy of such documents and records as is required to be retained pursuant to any\ninternal document retention policy, law, regulation or rule to which you arc subject. Notwithstanding the return or\ndestruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of\nconfidentiality and all other obligations under this letter agreement.\n4.\nYou acknowledge that neither the Company, nor any of its Representatives nor any of their respective\ndirectors, officers, employees, or agents makes any express or implied representation or warranty as to the accuracy or\ncompleteness of any Evaluation Material. You agree that none of such Persons will have any liability to you or to any of\nyour Representatives, relating to or resulting from the use of any Evaluation Material or for any errors therein or\nomissions therefrom. You also agree that you are not entitled to rely on the accuracy or completeness of any Evaluation\nMaterial and that you may only rely on those representations and warranties that may be contained in any definitive\nagreement executed and delivered by you and the Company and any other necessary parties with respect to the\nTransaction, subject to the terms and conditions as may be contained therein. For the purposes hereof, the term\n“definitive agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it\ninclude any written or oral acceptance of an offer or bid on your part.\n-\n2-\n5.\nYou agree that the Evaluation Information is and shall remain the property of the Company and that the\nCompany has not granted and will not grant you any license, copyright or similar right with respect to any of the\nEvaluation Information or any other material made available to you by or on behalf of the Company.\n6.\nFor a period of eighteen months from the date of this letter agreement, neither you nor any of your\nRepresentatives will, directly or indirectly, solicit, recruit or otherwise induce or encourage any person employed by the\nCompany to terminate such employment or to accept employment or enter into any consulting or other agreement with\nyou or your Representatives or employ in any capacity (as a director, officer, employee, consultant or otherwise) any\nperson who served the Company as a director, officer, employee, consultant or otherwise as of the date hereof or any\ntime during the evaluation of the Transaction without obtaining the prior written consent of the Company; provided,\nhowever, that you will not be prohibited from making general employment solicitations not directed at the employees of\nthe Company or hiring any individuals who respond to such solicitations.\n7.\nYou acknowledge that you are aware and that your Representatives have been advised that the United\nStates securities Laws prohibit any Person having material, non-public information about an issuer from trading the\nsecurities of that company or from communicating such information to other Persons.\n8.\nFor a period of eighteen months from the date of this letter agreement, neither you nor any of your\nRepresentatives or respective affiliates will in any manner, directly or indirectly, without the prior written consent of the\nCompany or its board of directors (or a duly authorized committee thereof):\n(a)\nacquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise,\nany securities or direct or indirect rights or options to acquire any securities of the Company or any of its\nsubsidiaries, or of any successor to or Person in control of the Company, or any assets of the Company or of its\ndivisions or of any such successor or controlling Person;\n(b)\nmake, or in any way participate, directly or indirectly, in any, “solicitation” of “proxies” (as such\nterms are used in the rules of the United States Securities and Exchange Commission), or advise or seek to\ninfluence any Person with respect to the voting of any voting securities of the Company or any of its subsidiaries;\n(c)\nmake any public announcement with respect to, or submit a proposal (whether public or\notherwise) for, or offer of (with or without conditions) any tender or exchange offer, merger, recapitalization,\nreorganization, business combination, restructuring, extraordinary dividend or distribution, liquidation, dissolution\nor other extraordinary transaction involving the Company or any of its subsidiaries or any of their securities or\nassets;\n(d)\nform, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Securities\nExchange Act of 1934, as amended, in connection with any of the foregoing;\n(e)\notherwise act, alone or in concert with others (including, without limitation, by providing\nfinancing to another party), to seek or offer to control or influence the management, board of directors, policies or\naffairs of the Company;\n(f)\nannounce any intention to effect, cause or participate in, or advise, assist or encourage any\nother Persons in connection with any of the foregoing; or\n(g)\nrequest the Company or any of its Representatives, directly or indirectly, to amend or waive any\nprovision of this paragraph.\nYou will promptly advise the Company of any inquiry or proposal made to you with respect to any of the\nforegoing.\n-\n3-\n9.\nRobert W. Baird & Co., as our authorized Representative, will coordinate the due diligence process for\nthe Transaction. All (a) communications regarding the Transaction, (b) requests for additional information, facility tours,\nmanagement meetings and other management contacts and (c) discussions or questions regarding procedures with\nrespect to the Transaction must be first submitted or directed to Robert W. Baird & Co., and may not be submitted or\ndirected to any person except as authorized by Robert W. Baird & Co.\n10.\nNo contract or agreement providing for any transaction involving you and the Company will be deemed\nto exist between you and the Company unless and until a definitive agreement has been executed and delivered by you\nand the Company and any other necessary parties. Unless and until a definitive agreement has been entered into\nbetween you and the Company regarding a transaction between you and the Company, neither the Company nor you will\nbe under any legal obligation or have any liability to the other party or any other Person of any kind whatsoever with\nrespect to such a transaction by virtue of this letter agreement except for the matters specifically agreed to in this letter\nagreement. You also acknowledge and agree that (a) the Company and its Representatives will conduct the process\n(which process may or may not result in a transaction with the Company) in such manner as the Company, in its sole\ndiscretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third\nparty without notice to you) and (b) the Company reserves the right to change, in its sole discretion, at any time and\nwithout notice to you, the procedures relating to our and your consideration of the Transaction (including, without\nlimitation, terminating all further discussions with you and requesting that you return or destroy the Evaluation Material as\ndescribed in paragraph 3 above).\n11.\nIt is understood and agreed that money damages would be an insufficient remedy for any breach of this\nletter agreement by you or your Representatives and that without prejudice to the rights and remedies otherwise\navailable to the Company, the Company is entitled to equitable relief by way of injunction, specific performance or\notherwise if you or any of your Representatives breach or threaten to breach any of the provisions of this letter\nagreement without the necessity to prove actual damages or post any bond. You agree to reimburse the Company for\nreasonable legal fees and other costs incurred to enforce this letter agreement.\n12.\nIt is further understood and agreed that no failure or delay by the Company in exercising any right,\npower or privilege under this letter agreement, and no course of dealing between the parties, will operate as a waiver\nthereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any\nright, power or privilege under this letter agreement.\n13.\nThis letter agreement and all disputes and controversies arising hereunder or related hereto, will be\ngoverned and construed in accordance with the Laws of the State of Indiana without regard to principles of conflicts of\nlaw that would apply any other law.\n14.\nAny action or proceeding arising out of or relating to this letter agreement or the transactions\ncontemplated hereby may be brought in the courts of the State of Indiana or, if it has or can acquire jurisdiction, in the\nUnited States District Court for the Northern District of Indiana. Each of the parties knowingly, voluntarily and irrevocably\nsubmits to the exclusive jurisdiction of each such court in any such action or proceeding and waives any objection it may\nnow or hereafter have to venue or to convenience of forum. You further agree that service of any process, summons,\nnotice or document by United States certified mail to your address set forth above will be effective service of process for\nany action or proceeding brought against you in any such court.\n15.\nAny assignment of this letter agreement by you without the Company's prior written consent is void.\n16.\nIf any provision of this letter agreement is determined by a court of competent jurisdiction to be invalid,\nillegal or unenforceable, in whole or in part, the remaining provisions of this letter agreement will remain in full force and\neffect to the fullest extent permitted by applicable law.\n17.\nExcept as set forth in Section 6 and Section 8, all of the obligations of the parties under this letter\nagreement shall continue in perpetuity.\n-\n4-\n18.\nThis letter agreement contains the entire agreement between you and the Company concerning\nconfidentiality of the Evaluation Material. No modification of this letter agreement or waiver of the terms and conditions\nhereof will be binding upon you or the Company, unless approved in writing by each of you and the Company.\n19.\nThis letter agreement may be executed in any number of counterparts, including by electronic\ntransmission in portable document format or “tiff' format, and each of such counterparts shall for all purposes be deemed\noriginal, and all such counterparts shall together constitute one and the same instrument.\n[Signature page follows.]\n-\n5-\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to\nthe undersigned, whereupon this letter agreement will become a binding agreement between you and the Company.\nVery truly yours,\nPROJECT REDHAWK\nSupreme Industries, Inc.\nBy: /s/ Matthew W. Long\nName: Matthew W. Long\nTitle: Chief Financial Officer\nAgreed and accepted as of the date first written above\nWABASH NATIONAL CORPORATION\nBy: /s/ James A. Scarcelli\nName: James A. Scarcelli\nTitle: Vice President, Corporate Strategy	Exhibit (d)(3)\nSTRICTLY PRIVATE AND CONFIDENTIAL\nApril 24, 2017\nWabash National Corporation\n1000 Sagamore Parkway South\nLafayette, IN 47905\nAttention: Mr.J ames Scarcelli\nVP, Corporate Strategy\nCONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction with Project REDHAWK, a Delaware corporation,\nand/or its subsidiaries and affiliates (collectively, the “Company”) (the 'Transaction”), the Company is prepared to make\navailable to you certain confidential and proprietary information relating to the Company which is not available to the\ngeneral public. All such information, whether written, oral or electronic, whether furnished before or after the date of this\nletter agreement by the Company or its Representatives (as defined below), and regardless of the manner or form in\nwhich it is furnished, is collectively referred to in this letter agreement as “Evaluation Material.” The term “Evaluation\nMaterial” also includes all notes, summaries, analyses, compilations, studies, or other documents or media prepared by\nyou or your Representatives which contain, reflector are based upon, in whole or in part, the information furnished to you\nor your Representatives pursuant to this letter agreement. The term Evaluation Material does not include, however,\ninformation which (a) is or becomes generally available to the public other than as a result of direct or indirect disclosure\nby you or your Representatives in violation of the terms of this letter agreement or (b) priorto its disclosure to you by the\nCompany or its Representatives, is or becomes available to you on a non-confidential basis from a source (otherthan the\nCompany or any of its Representatives) which is not prohibited from disclosing such information to you by a legal,\ncontractual or fiduciary obligation to the Company or any other Person. The term “Representatives” means, as to any\nPerson, its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants,\nconsultants, financial advisors and non-convertible debt sources of financing for the Transaction, and additionally as to\nyou, upon receiving prior written consent of the Company, which consent may be given, withheld or conditioned in its sole\ndiscretion, your potential sources of equity financing for the Transaction). The term “Person” as used in this letter\nagreement is broadly interpreted to include any corporation, company, partnership or other legal or business entity or any\nindividual.\n \nAccordingly, in consideration of the Evaluation Material being furnished to you, you agree that:\n1. Except as required by Law (and only after compliance with paragraph 2 below), unless otherwise agreed\nto in writing by the Company, you will (a) not use the Evaluation Material for any purpose other than in connection with\nyour evaluation of the Transaction, (b) keep the Evaluation Material confidential and not disclose any Evaluation Material\nin any manner whatsoever and (c) not disclose to any other Person the fact the Evaluation Material exists or has been\nmade available, thatyou are considering the Transaction, or that discussions or negotiations are taking place concerning\nthe Transaction or involving the Company or any of the terms, conditions, or other facts with respect thereto (including,\nwithout limitation, the status thereof); provided, however, that such information may be disclosed to your Representatives\nwho are actively and directly participating in your evaluation of the Transaction or who otherwise need to know such\ninformation for the sole purpose of evaluating the Transaction and who are informed by you of the confidential nature of\nthe information. Without limiting the generality of the foregoing, you further agree that you will not, directly or indirectly,\nshare the Evaluation Material with or enter into any agreement, arrangement or understanding, or have any discussions\nwhich would reasonably be expected to lead to such an agreement, arrangement or understanding with any other\nperson, including other potential bidders and equity financing sources (other than your Representatives as permitted\nabove) regarding a possible transaction involving the Company without the prior written consent of the Company, which\nconsent may be given, withheld or conditioned in its sole discretion, and only upon such person executing a\nconfidentiality agreement in favor of the Company with terms and conditions consistent with this letter agreement. You\nwill cause your Representatives to observe the terms of this letter agreement and you will be responsible for any breach\nof this letter agreement by your Representatives. The term “Law,” means any applicable law or regulation (including,\nwithout limitation, any rule, regulation or policy statement of any organized securities exchange, market or automated\nquotation system on which any of your securities are listed or quoted) or by valid legal process.\n2. If you or any of your Representatives are requested pursuant to, or required by, Law to disclose any\nEvaluation Material or other information concerning the Company or the Transaction, prior to any such disclosure, you\nwill, to the extent not legally prohibited, notify the Company promptly of any such request or requirement so that the\nCompany may seek a protective order or other appropriate remedy, or, in the Company's sole discretion, waive\ncompliance with the terms of this letter agreement. If no such protective order or other remedy is obtained or the\nCompany waives compliance with the terms of this letter agreement, you or your Representatives will disclose only that\nportion of the Evaluation Material or other information which you are advised in writing by your legal counsel is legally\nrequired to be disclosed and will use best efforts to ensure any such information so disclosed will be accorded\nconfidential treatment.\n3. If you decide thatyou do not wish to proceed with the Transaction, you will promptly inform the Company\nof that decision. In that case, or at any time upon the request of the Company for any reason, you will promptly (and in\nany case, within 14 days of the Company's request) (a) deliver to the Company all Evaluation Material furnished to you or\nyour Representatives by or on behalf of the Company (and all copies thereof whether received from the Company or\nmade by you or your Representatives) and (b) either deliver to the Company or destroy all materials prepared by you or\nyour Representatives which constitute Evaluation Material without retaining a copy of any such material, with any such\ndestruction certified to the Company in writing by your authorized officer supervising such destruction; provided that you\nmay retain, in a secure location, a copy of such documents and records as is required to be retained pursuant to any\ninternal document retention policy, law, regulation or rule to which you arc subject. Notwithstanding the return or\ndestruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of\nconfidentiality and all other obligations under this letter agreement.\n4. You acknowledge that neither the Company, nor any of its Representatives nor any of their respective\ndirectors, officers, employees, or agents makes any express or implied representation or warranty as to the accuracy or\ncompleteness of any Evaluation Material. You agree that none of such Persons will have any liability to you or to any of\nyour Representatives, relating to or resulting from the use of any Evaluation Material or for any errors therein or\nomissions therefrom. You also agree that you are not entitled to rely on the accuracy or completeness of any Evaluation\nMaterial and that you may only rely on those representations and warranties that may be contained in any definitive\nagreement executed and delivered by you and the Company and any other necessary parties with respect to the\nTransaction, subject to the terms and conditions as may be contained therein. For the purposes hereof, the term\n“definitive agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it\ninclude any written or oral acceptance of an offer or bid on your part.\n5. You agree that the Evaluation Information is and shall remain the property of the Company and that the\nCompany has not granted and will not grant you any license, copyright or similar right with respect to any of the\nEvaluation Information or any other material made available to you by or on behalf of the Company.\n6. For a period of eighteen months from the date of this letter agreement, neither you nor any of your\nRepresentatives will, directly or indirectly, solicit, recruit or otherwise induce or encourage any person employed by the\nCompany to terminate such employment or to accept employment or enter into any consulting or other agreement with\nyou or your Representatives or employ in any capacity (as a director, officer, employee, consultant or otherwise) any\nperson who served the Company as a director, officer, employee, consultant or otherwise as of the date hereof or any\ntime during the evaluation of the Transaction without obtaining the prior written consent of the Company; provided,\nhowever, that you will not be prohibited from making general employment solicitations not directed at the employees of\nthe Company or hiring any individuals who respond to such solicitations.\n7. You acknowledge that you are aware and that your Representatives have been advised that the United\nStates securities Laws prohibit any Person having material, non-public information about an issuer from trading the\nsecurities of that company orfrom communicating such information to other Persons.\n8. For a period of eighteen months from the date of this letter agreement, neither you nor any of your\nRepresentatives or respective affiliates will in any manner, directly or indirectly, without the prior written consent of the\nCompany or its board ofdirectors (or a duly authorized committee thereof):\n(a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise,\nany securities or direct or indirect rights or options to acquire any securities of the Company or any of its\nsubsidiaries, or of any successor to or Person in control of the Company, or any assets of the Company or of its\ndivisions or of any such successor or controlling Person;\n(b) make, or in any way participate, directly or indirectly, in any, “solicitation” of “proxies” (as such\nterms are used in the rules of the United States Securities and Exchange Commission), or advise or seek to\ninfluence any Person with respectto the voting of any voting securities of the Company or any of its subsidiaries;\n(c) make any public announcement with respect to, or submit a proposal (whether public or\notherwise) for, or offer of (with or without conditions) any tender or exchange offer, merger, recapitalization,\nreorganization, business combination, restructuring, extraordinary dividend or distribution, liquidation, dissolution\nor other extraordinary transaction involving the Company or any of its subsidiaries or any of their securities or\nassets;\n(d) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Securities\nExchange Act of 1934, as amended, in connection with any of the foregoing;\n(e) otherwise act, alone or in concert with others (including, without limitation, by providin\nfinancing to another party), to seek or offerto control or influence the management, board ofdirectors, policies or\naffairs of the Company;\n(f) announce any intention to effect, cause or participate in, or advise, assist or encourage any\nother Persons in connection with any of the foregoing; or\n(g) request the Company or any of its Representatives, directly or indirectly, to amend or waive any\nprovision of this paragraph.\nYou will promptly advise the Company of any inquiry or proposal made to you with respect to any of the\nforegoing.\n9. Robert W. Baird & Co., as our authorized Representative, will coordinate the due diligence process for\nthe Transaction. All (a) communications regarding the Transaction, (b) requests for additional information, facility tours,\nmanagement meetings and other management contacts and (c) discussions or questions regarding procedures with\nrespect to the Transaction must be first submitted or directed to Robert W. Baird & Co., and may not be submitted or\ndirected to any person exceptas authorized by RobertW. Baird & Co.\n10. No contract or agreement providing for any transaction involving you and the Company will be deemed\nto exist between you and the Company unless and until a definitive agreement has been executed and delivered by you\nand the Company and any other necessary parties. Unless and until a definitive agreement has been entered into\nbetween you and the Company regarding a transaction between you and the Company, neither the Company nor you will\nbe under any legal obligation or have any liability to the other party or any other Person of any kind whatsoever with\nrespect to such a transaction by virtue of this letter agreement except for the matters specifically agreed to in this letter\nagreement. You also acknowledge and agree that (a) the Company and its Representatives will conduct the process\n(which process may or may not result in a transaction with the Company) in such manner as the Company, in its sole\ndiscretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third\nparty without notice to you) and (b) the Company reserves the right to change, in its sole discretion, at any time and\nwithout notice to you, the procedures relating to our and your consideration of the Transaction (including, without\nlimitation, terminating all further discussions with you and requesting that you return or destroy the Evaluation Material as\ndescribed in paragraph 3 above).\n11. It is understood and agreed that money damages would be an insufficient remedy for any breach of this\nletter agreement by you or your Representatives and that without prejudice to the rights and remedies otherwise\navailable to the Company, the Company is entitled to equitable relief by way of injunction, specific performance or\notherwise if you or any of your Representatives breach or threaten to breach any of the provisions of this letter\nagreement without the necessity to prove actual damages or post any bond. You agree to reimburse the Company for\nreasonable legal fees and other costs incurred to enforce this letter agreement.\n12. It is further understood and agreed that no failure or delay by the Company in exercising any right,\npower or privilege under this letter agreement, and no course of dealing between the parties, will operate as a waiver\nthereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any\nright, power or privilege underthis letter agreement.\n13. This letter agreement and all disputes and controversies arising hereunder or related hereto, will be\ngoverned and construed in accordance with the Laws of the State of Indiana without regard to principles of conflicts of\nlaw that would apply any other law.\n14. Any action or proceeding arising out of or relating to this letter agreement or the transactions\ncontemplated hereby may be brought in the courts of the State of Indiana or, if it has or can acquire jurisdiction, in the\nUnited States District Court for the Northern District of Indiana. Each of the parties knowingly, voluntarily and irrevocably\nsubmits to the exclusive jurisdiction of each such court in any such action or proceeding and waives any objection it may\nnow or hereafter have to venue or to convenience of forum. You further agree that service of any process, summons,\nnotice or document by United States certified mail to your address set forth above will be effective service of process for\nany action or proceeding brought againstyou in any such court.\n15. Any assignment of this letter agreement by you without the Company's prior written consent is void.\n16. If any provision of this letter agreement is determined by a court of competentjurisdiction to be invalid,\nillegal or unenforceable, in whole or in part, the remaining provisions of this letter agreement will remain in full force and\neffect to the fullest extent permitted by applicable law.\n17. Except as set forth in Section 6 and Section 8, all of the obligations of the parties under this letter\nagreement shall continue in perpetuity.\n18. This letter agreement contains the entire agreement between you and the Company concerning\nconfidentiality of the Evaluation Material. No modification of this letter agreement or waiver of the terms and conditions\nhereofwill be binding upon you orthe Company, unless approved in writing by each of you and the Company.\n19. This letter agreement may be executed in any number of counterparts, including by electroni'\ntransmission in portable document format or “tiff' format, and each of such counterparts shall for all purposes be deemed\noriginal, and all such counterparts shall together constitute one and the same instrument.\n[Signature page follows.]\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to\nthe undersigned, whereupon this letteragreementwill become a binding agreement between you and the Company.\nVery truly yours,\nPROJECT REDHAWK\nSupreme Industries, Inc.\nBy: /s/ Matthew W. Long\nName: IV attfiew W. Eong\nTitle: Chief Financial Officer\nAgreed and accepted as of the date first written above\nWABASH NATIONAL CORPORATION\nBy: /s/J ames A. ScarceIIi\nName: | ames A. ScarceIII\nTitle: Vice President, Corporate Strategy	Exhibit (d)(3)\nSTRICTLY PRIVATE AND CONFIDENTIAL\nApril 24, 2017\nWabash National Corporation\n1000 Sagamore Parkway South\nLafayette, IN 47905\nAttention:\nMr. J ames Scarcelli\nVP, Corporate Strategy\nCONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction with Project REDHAWK, a Delaware corporation,\nand/or its subsidiaries and affiliates (collectively, the "Company") (the "Transaction"), the Company is prepared to make\navailable to you certain confidential and proprietary information relating to the Company which is not available to the\ngeneral public. All such information, whether written, oral or electronic, whether furnished before or after the date of this\nletter agreement by the Company or its Representatives (as defined below), and regardless of the manner or form in\nwhich it is furnished, is collectively referred to in this letter agreement as "Evaluation Material." The term "Evaluation\nMaterial" also includes all notes, summaries, analyses, compilations, studies, or other documents or media prepared by\nyou or your Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to you\nor your Representatives pursuant to this letter agreement The term Evaluation Material does not include, however,\ninformation which (a) is or becomes generally available to the public other than as a result of direct or indirect disclosure\nby\nyou\nor\nyour Representatives in violation of the terms of this letter agreement or (b) prior to its disclosure to you by the\nCompany or its Representatives, is or becomes available to you on a non-confidential basis from a source (other than the\nCompany or any of its Representatives) which is not prohibited from disclosing such information to you by a legal,\ncontractual or fiduciary obligation to the Company or any other Person. The term "Representatives" means, as to any\nPerson, its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants,\nconsultants, financial advisors and non-convertible debt sources of financing for the Transaction, and additionally as to\nyou, upon receiving prior written consent of the Company, which consent may be given, withheld or conditioned in its sole\ndiscretion, your potential sources of equity financing for the Transaction). The term "Person" as used in this\nletter\nagreement is broadly interpreted to include any corporation, company, partnership or other legal or business entity or any\nindividual.\nAccordingly, in consideration of the valuation Materia being furnished to you, you agree that:\n1.\nExcept as required by Law (and only after compliance with paragraph 2 below), unless otherwise agreed\nto in writing by the Company, you will (a) not use the Evaluation Material for any purpose other than in connection with\nyour evaluation of the Transaction, (b) keep the Evaluation Material confidential and not disclose any Evaluation Material\nin any manner whatsoever and (c) not disclose to any other Person the fact the Evaluation Material exists or has been\nmade available, that you are considering the Transaction, or that discussions or negotiations are taking place concerning\nthe Transaction or involving the Company or any of the terms, conditions, or other facts with respect thereto (including,\nwithout limitation, the status thereof); provided, however, that such information may be disclosed to your epresentatives\nwho are actively and directly participating in your evaluation of the Transaction or who otherwise need to know such\ninformation for the sole purpose of evaluating the Transaction and who are informed by you of the confidential nature of\nthe information. Without limiting the generality of the foregoing, you further agree that you will not, directly or indirectly,\nshare the Evaluation Material with or enter into any agreement, arrangement or understanding, or have any discussions\nwhich would reasonably be expected to lead to such an agreement, arrangement or understanding with any other\nperson, including other potential bidders and equity financing sources (other than your Representatives as permitted\nabove) regarding a possible transaction involving the Company without the prior written consent of the Company, which\nconsent may be given, withheld or conditioned in its sole discretion, and only upon such person executing a\nconfidentiality agreement in favor of the Company with terms and conditions consistent with this letter agreement. You\nwill cause your Representatives to observe the terms of this letter agreement and you will be responsible for any breach\nof this letter agreement by your Representatives The term "Law," means any applicable law or regulation (including,\nwithout limitation, any rule, regulation or policy statement of any organized securities exchange, market or automated\nquotation system on which any of your securities are listed or quoted) or by valid legal process.\n2.\nIf you or any of your Representatives are requested pursuant to, or required by, Law to disclose any\nEvaluation Material or other information concerning the Company or the Transaction, prior to any such disclosure, you\nwill, to the extent not legally prohibited, notify the Company promptly of any such request or requirement so that the\nCompany may seek a protective order or other appropriate remedy, or, in the Company's sole discretion, waive\ncompliance with the terms of this letter agreement. If no such protective order or other remedy is obtained or the\nCompany waives compliance with the terms of this letter agreement, you or your Representatives will disclose only that\nportion of the Evaluation Material or other information which you are advised in writing by your legal counsel is legally\nrequired to be disclosed and will use best efforts to ensure any such information so disclosed wil be accorded\nconfidential treatment.\n3.\nIf you decide that you do not wish to proceed with the Transaction, you will promptly inform the Company\nof that decision. In that case, or at any time upon the request of the Company for any reason, you will promptly (and in\nany case, within 14 days of the Company's request) (a) deliver to the Company all Evaluation Material furnished to you or\nyour Representatives by or on behalf of the Company (and all copies thereof whether received from the Company or\nmade by you or your Representatives) and (b) either deliver to the Company or destroy all materials prepared by you or\nyour Representatives which constitute Evaluation Material without retaining a copy of any such material, with any such\ndestruction certified to the Company in writing by your authorized officer supervising such destruction; provided that you\nmay retain, in a secure location, a copy of such documents and records as is required to be retained pursuant to any\ninternal document retention policy, law, regulation or rule to which you arc subject. Notwithstanding the\nreturn\nor\ndestruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of\nconfidentiality and all other obligations under this letter agreement.\n4.\nYou acknowledge that neither the Company, nor any of its Representatives nor any of their respective\ndirectors, officers, employees, or agents makes any express or implied representation or warranty as to the accuracy or\ncompleteness of any Evaluation Material. You agree that none of such Persons will have any liability to you or to any of\nyour Representatives, relating to or resulting from the use of any Evaluation Material or for any errors therein or\nomissions therefrom. You also agree that you are not entitled to rely on the accuracy or completeness of any Evaluation\nMaterial and that you may only rely on those representations and warranties that may be contained in any definitive\nagreement executed and delivered by you and the Company and any other necessary parties with respect to the\nTransaction, subject to the terms and conditions as may be contained therein. For the purposes hereof, the term\n"definitive agreement" does not include an executed letter of intent or any other preliminary written agreement, nor does\nit\ninclude any written or oral acceptance of an offer or bid on your part.\n- 2 -\n5.\nYou agree that the Evaluation Information is and shall remain the property of the Company and that the\nCompany has not granted and will not grant you any license, copyright or similar right with respect to any of the\nEvaluation Information or any other material made available to you by or on behalf of the Company.\n6.\nFor a period of eighteen months from the date of this letter agreement, neither you nor any\nof\nyour\nRepresentatives will, directly or indirectly, solicit, recruit or otherwise induce or encourage any person employed by the\nCompany to terminate such employment or to accept employment or enter into any consulting or other agreement with\nyou or your Representatives or employ in any capacity (as a director, officer, employee, consultant or otherwise) any\nperson who served the Company as a director, officer, employee, consultant or otherwise as of the date hereof or any\ntime during the evaluation of the Transaction without obtaining the prior written consent of the Company; provided,\nhowever, that you will not be prohibited from making general employment solicitations not directed at the employees of\nthe Company or hiring any individuals who respond to such solicitations.\n7.\nYou acknowledge that you are aware and that your Representatives have been advised that the United\nStates securities Laws prohibit any Person having material, non-public information about an issuer from trading the\nsecurities of that company or from communicating such information to other Persons.\n8.\nFor a period of eighteen months from the date of this letter agreement, neither you nor any of your\nRepresentatives or respective affiliates will in any manner, directly or indirectly, without the prior written consent of the\nCompany or its board of directors (or a duly authorized committee thereof):\n(a)\nacquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise,\nany securities or direct or indirect rights or options to acquire any securities of the Company or any of its\nsubsidiaries, or of any successor to or Person in control of the Company, or any assets of the Company or of its\ndivisions or of any such successor or controlling Person;\n(b)\nmake, or in any way participate, directly or indirectly, in any, "solicitation" of "proxies" (as such\nterms are used in the rules of the United States Securities and Exchange Commission), or advise or seek to\ninfluence any Person with respect to the voting of any voting securities of the Company or any of its subsidiaries;\n(c)\nmake any public announcement with respect to, or submit a proposal (whether public or\notherwise) for, or offer of (with or without conditions) any tender or exchange offer, merger, recapitalization,\nreorganization, business combination, restructuring, extraordinary dividend or distribution, liquidation, dissolution\nor other extraordinary transaction involving the Company or any of its subsidiaries or any of their securities or\nassets;\n(d)\nform, join or in any way participate in a "group" as defined in Section 13(d)(3) of the Securities\nExchange Act of 1934, as amended, in connection with any of the foregoing;\n(e)\notherwise act, alone or in concert with others (including, without limitation, by providin\nfinancing to another party), to seek or offer to control or influence the management, board of directors, policies or\naffairs of the Company;\n(f)\nannounce any intention to effect, cause or participate in, or advise, assist or encourage any\nother Persons in connection with any of the foregoing; or\n(g)\nrequest the Company or any of its Representatives, directly or indirectly, to amend or waive any\nprovision of this paragraph\nYou will promptly advise the Company of any inquiry or proposal made to you with respect to any of the\nforegoing.\n- 3 -\n9.\nRobert W. Baird & Co., as our authorized Representative, will coordinate the due diligence process for\nthe Transaction. AIl (a) communications regarding the Transaction, (b) requests for additional information, facility tours,\nmanagement meetings and other management contacts and (c) discussions or questions regarding procedures with\nrespect to the Transaction must be first submitted or directed to Robert W. Baird & Co., and may not be submitted or\ndirected to any person except as authorized by Robert W. Baird & Co.\n10.\nNo contract or agreement providing for any transaction involving you and the Company will be deemed\nto exist between you and the Company unless and unti a definitive agreement has been executed and delivered by you\nand the Company and any other necessary parties. Unless and until a definitive agreement has been entered into\nbetween you and the Company regarding a transaction between you and the Company, neither the Company nor you will\nbe under any legal obligation or have any liability to the other party or any other Person of any kind whatsoever with\nrespect to such a transaction by virtue of this letter agreement except for the matters specifically agreed to in this letter\nagreement You also acknowledge and agree that (a) the Company and its Representatives will conduct the process\n(which process may or may not result in a transaction with the Company) in such manner as the Company, in its sole\ndiscretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third\nparty without notice to you) and (b) the Company reserves the right to change, in its sole discretion at any time and\nwithout notice to you, the procedures relating to our and your consideration of the Transaction (including, without\nlimitation, terminating all further discussions with you and requesting that you return or destroy the valuation Materia as\ndescribed in paragraph 3 above).\n11.\nIt is understood and agreed that money damages would be an insufficient remedy for any breach of this\nletter agreement by you or your Representatives and that without prejudice to the rights and remedies otherwise\navailable to the Company, the Company is entitled to equitable relief by way of injunction, specific performance or\notherwise if you or any of your Representatives breach or threaten to breach any of the provisions of this letter\nagreement without the necessity to prove actua damages or post any bond. You agree to reimburse the Company for\nreasonable legal fees and other costs incurred to enforce this letter agreement\n12.\nit is further understood and agreed that no failure or delay by the Company in exercising any right,\npower or privilege under this letter agreement, and no course of dealing between the parties, will operate as a waiver\nthereof, nor will any single or partia exercise thereof preclude any other or further exercise thereof or the exercise of any\nright, power or privilege under this letter agreement\n13.\nThis letter agreement and all disputes and controversies arising hereunder or related hereto, will be\ngoverned and construed in accordance with the Laws of the State of Indiana without regard to principles of conflicts of\nlaw that would apply any other law.\n14.\nAny action or proceeding arising out of or relating to this letter agreement or the transaction\ncontemplated hereby may be brought in the courts of the State of Indiana or, if it has or can acquire jurisdiction, in the\nUnited States District Court for the Northern District of Indiana. Each of the parties knowingly, voluntarily and irrevocably\nsubmits to the exclusive jurisdiction of each such court in any such action or proceeding and waives any objection it may\nnow or hereafter have to venue or to convenience of forum. You further agree that service of any process, summons,\nnotice or document by United States certified mail to your address set forth above will be effective service of process for\nany action or proceeding brought against you in any such court.\n15.\nAny assignment of this letter agreement by you without the Company's prior written consent is void.\n16.\nIf any provision of this letter agreement is determined by a court of competent jurisdiction to be invalid,\nillegal or unenforceable, in whole or in part, the remaining provisions of this letter agreement wil remain in full force and\neffect to the fullest extent permitted by applicable law.\n17.\nExcept as set forth in Section 6 and Section 8, all of the obligations of the parties under this letter\nagreement shall continue in perpetuity.\n- 4 -\n18.\nThis letter agreement contains the entire agreement between you and the Company concerning\nconfidentiality of the Evaluation Material. No modification of this letter agreement or waiver of the terms and conditions\nhereof will be binding upon you or the Company, unless approved in writing by each of you and the Company.\n19.\nThis letter agreement may be executed in any number of counterparts, including by electroni\ntransmission in portable document format or "tiff format, and each of such counterparts shall for all purposes be deemed\noriginal, and all such counterparts shall together constitute one and the same instrument.\n[Signature page follows.]\n5\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to\nthe undersigned, whereupon this letter agreement will become a binding agreement between you and the Company.\nVery truly yours,\nPROJECT REDHAWK\nSupreme Industries, Inc.\nBy: /s/ Matthew W. Long\nName: Matthew W. Long\nTitle: Chief Financial Officer\nAgreed and accepted as of the date first written above\nWABASH NATIONAL CORPORATION\nBy:\n/s/ J ames A. Scarcelli\nName: ames A. SCarceli\nTitle: Vice President, Corporate Strategy	Exhibit (d)(3)\nSTRICTLY PRIVATE AND CONFIDENTIAL\nApril 24, 2017\nWabash National Corporation\n1000 Sagamore Parkway South\nLafayette, IN 47905\nAttention:\nMr. James Scarcelli\nVP, Corporate Strategy\nCONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction with Project REDHAWK, a Delaware corporation,\nand/or its subsidiaries and affiliates (collectively, the “Company”) (the “Transaction”), the Company is prepared to make\navailable to you certain confidential and proprietary information relating to the Company which is not available to the\ngeneral public. All such information, whether written, oral or electronic, whether furnished before or after the date of this\nletter agreement by the Company or its Representatives (as defined below), and regardless of the manner or form in\nwhich it is furnished, is collectively referred to in this letter agreement as “Evaluation Material.” The term “Evaluation\nMaterial” also includes all notes, summaries, analyses, compilations, studies, or other documents or media prepared by\nyou or your Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to you\nor your Representatives pursuant to this letter agreement. The term Evaluation Material does not include, however,\ninformation which (a) is or becomes generally available to the public other than as a result of direct or indirect disclosure\nby you or your Representatives in violation of the terms of this letter agreement or (b) prior to its disclosure to you by the\nCompany or its Representatives, is or becomes available to you on a non-confidential basis from a source (other than the\nCompany or any of its Representatives) which is not prohibited from disclosing such information to you by a legal,\ncontractual or fiduciary obligation to the Company or any other Person. The term “Representatives” means, as to any\nPerson, its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants,\nconsultants, financial advisors and non-convertible debt sources of financing for the Transaction, and additionally as to\nyou, upon receiving prior written consent of the Company, which consent may be given, withheld or conditioned in its sole\ndiscretion, your potential sources of equity financing for the Transaction). The term “Person” as used in this letter\nagreement is broadly interpreted to include any corporation, company, partnership or other legal or business entity or any\nindividual.\nAccordingly, in consideration of the Evaluation Material being furnished to you, you agree that:\n1.\nExcept as required by Law (and only after compliance with paragraph 2 below), unless otherwise agreed\nto in writing by the Company, you will (a) not use the Evaluation Material for any purpose other than in connection with\nyour evaluation of the Transaction, (b) keep the Evaluation Material confidential and not disclose any Evaluation Material\nin any manner whatsoever and (c) not disclose to any other Person the fact the Evaluation Material exists or has been\nmade available, that you are considering the Transaction, or that discussions or negotiations are taking place concerning\nthe Transaction or involving the Company or any of the terms, conditions, or other facts with respect thereto (including,\nwithout limitation, the status thereof); provided, however, that such information may be disclosed to your Representatives\nwho are actively and directly participating in your evaluation of the Transaction or who otherwise need to know such\ninformation for the sole purpose of evaluating the Transaction and who are informed by you of the confidential nature of\nthe information. Without limiting the generality of the foregoing, you further agree that you will not, directly or indirectly,\nshare the Evaluation Material with or enter into any agreement, arrangement or understanding, or have any discussions\nwhich would reasonably be expected to lead to such an agreement, arrangement or understanding with any other\nperson, including other potential bidders and equity financing sources (other than your Representatives as permitted\nabove) regarding a possible transaction involving the Company without the prior written consent of the Company, which\nconsent may be given, withheld or conditioned in its sole discretion, and only upon such person executing a\nconfidentiality agreement in favor of the Company with terms and conditions consistent with this letter agreement. You\nwill cause your Representatives to observe the terms of this letter agreement and you will be responsible for any breach\nof this letter agreement by your Representatives. The term “Law,” means any applicable law or regulation (including,\nwithout limitation, any rule, regulation or policy statement of any organized securities exchange, market or automated\nquotation system on which any of your securities are listed or quoted) or by valid legal process.\n2.\nIf you or any of your Representatives are requested pursuant to, or required by, Law to disclose any\nEvaluation Material or other information concerning the Company or the Transaction, prior to any such disclosure, you\nwill, to the extent not legally prohibited, notify the Company promptly of any such request or requirement so that the\nCompany may seek a protective order or other appropriate remedy, or, in the Company's sole discretion, waive\ncompliance with the terms of this letter agreement. If no such protective order or other remedy is obtained or the\nCompany waives compliance with the terms of this letter agreement, you or your Representatives will disclose only that\nportion of the Evaluation Material or other information which you are advised in writing by your legal counsel is legally\nrequired to be disclosed and will use best efforts to ensure any such information so disclosed will be accorded\nconfidential treatment.\n3.\nIf you decide that you do not wish to proceed with the Transaction, you will promptly inform the Company\nof that decision. In that case, or at any time upon the request of the Company for any reason, you will promptly (and in\nany case, within 14 days of the Company's request) (a) deliver to the Company all Evaluation Material furnished to you or\nyour Representatives by or on behalf of the Company (and all copies thereof whether received from the Company or\nmade by you or your Representatives) and (b) either deliver to the Company or destroy all materials prepared by you or\nyour Representatives which constitute Evaluation Material without retaining a copy of any such material, with any such\ndestruction certified to the Company in writing by your authorized officer supervising such destruction; provided that you\nmay retain, in a secure location, a copy of such documents and records as is required to be retained pursuant to any\ninternal document retention policy, law, regulation or rule to which you arc subject. Notwithstanding the return or\ndestruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of\nconfidentiality and all other obligations under this letter agreement.\n4.\nYou acknowledge that neither the Company, nor any of its Representatives nor any of their respective\ndirectors, officers, employees, or agents makes any express or implied representation or warranty as to the accuracy or\ncompleteness of any Evaluation Material. You agree that none of such Persons will have any liability to you or to any of\nyour Representatives, relating to or resulting from the use of any Evaluation Material or for any errors therein or\nomissions therefrom. You also agree that you are not entitled to rely on the accuracy or completeness of any Evaluation\nMaterial and that you may only rely on those representations and warranties that may be contained in any definitive\nagreement executed and delivered by you and the Company and any other necessary parties with respect to the\nTransaction, subject to the terms and conditions as may be contained therein. For the purposes hereof, the term\n“definitive agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it\ninclude any written or oral acceptance of an offer or bid on your part.\n-\n2-\n5.\nYou agree that the Evaluation Information is and shall remain the property of the Company and that the\nCompany has not granted and will not grant you any license, copyright or similar right with respect to any of the\nEvaluation Information or any other material made available to you by or on behalf of the Company.\n6.\nFor a period of eighteen months from the date of this letter agreement, neither you nor any of your\nRepresentatives will, directly or indirectly, solicit, recruit or otherwise induce or encourage any person employed by the\nCompany to terminate such employment or to accept employment or enter into any consulting or other agreement with\nyou or your Representatives or employ in any capacity (as a director, officer, employee, consultant or otherwise) any\nperson who served the Company as a director, officer, employee, consultant or otherwise as of the date hereof or any\ntime during the evaluation of the Transaction without obtaining the prior written consent of the Company; provided,\nhowever, that you will not be prohibited from making general employment solicitations not directed at the employees of\nthe Company or hiring any individuals who respond to such solicitations.\n7.\nYou acknowledge that you are aware and that your Representatives have been advised that the United\nStates securities Laws prohibit any Person having material, non-public information about an issuer from trading the\nsecurities of that company or from communicating such information to other Persons.\n8.\nFor a period of eighteen months from the date of this letter agreement, neither you nor any of your\nRepresentatives or respective affiliates will in any manner, directly or indirectly, without the prior written consent of the\nCompany or its board of directors (or a duly authorized committee thereof):\n(a)\nacquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise,\nany securities or direct or indirect rights or options to acquire any securities of the Company or any of its\nsubsidiaries, or of any successor to or Person in control of the Company, or any assets of the Company or of its\ndivisions or of any such successor or controlling Person;\n(b)\nmake, or in any way participate, directly or indirectly, in any, “solicitation” of “proxies” (as such\nterms are used in the rules of the United States Securities and Exchange Commission), or advise or seek to\ninfluence any Person with respect to the voting of any voting securities of the Company or any of its subsidiaries;\n(c)\nmake any public announcement with respect to, or submit a proposal (whether public or\notherwise) for, or offer of (with or without conditions) any tender or exchange offer, merger, recapitalization,\nreorganization, business combination, restructuring, extraordinary dividend or distribution, liquidation, dissolution\nor other extraordinary transaction involving the Company or any of its subsidiaries or any of their securities or\nassets;\n(d)\nform, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Securities\nExchange Act of 1934, as amended, in connection with any of the foregoing;\n(e)\notherwise act, alone or in concert with others (including, without limitation, by providing\nfinancing to another party), to seek or offer to control or influence the management, board of directors, policies or\naffairs of the Company;\n(f)\nannounce any intention to effect, cause or participate in, or advise, assist or encourage any\nother Persons in connection with any of the foregoing; or\n(g)\nrequest the Company or any of its Representatives, directly or indirectly, to amend or waive any\nprovision of this paragraph.\nYou will promptly advise the Company of any inquiry or proposal made to you with respect to any of the\nforegoing.\n-\n3-\n9.\nRobert W. Baird & Co., as our authorized Representative, will coordinate the due diligence process for\nthe Transaction. All (a) communications regarding the Transaction, (b) requests for additional information, facility tours,\nmanagement meetings and other management contacts and (c) discussions or questions regarding procedures with\nrespect to the Transaction must be first submitted or directed to Robert W. Baird & Co., and may not be submitted or\ndirected to any person except as authorized by Robert W. Baird & Co.\n10.\nNo contract or agreement providing for any transaction involving you and the Company will be deemed\nto exist between you and the Company unless and until a definitive agreement has been executed and delivered by you\nand the Company and any other necessary parties. Unless and until a definitive agreement has been entered into\nbetween you and the Company regarding a transaction between you and the Company, neither the Company nor you will\nbe under any legal obligation or have any liability to the other party or any other Person of any kind whatsoever with\nrespect to such a transaction by virtue of this letter agreement except for the matters specifically agreed to in this letter\nagreement. You also acknowledge and agree that (a) the Company and its Representatives will conduct the process\n(which process may or may not result in a transaction with the Company) in such manner as the Company, in its sole\ndiscretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third\nparty without notice to you) and (b) the Company reserves the right to change, in its sole discretion, at any time and\nwithout notice to you, the procedures relating to our and your consideration of the Transaction (including, without\nlimitation, terminating all further discussions with you and requesting that you return or destroy the Evaluation Material as\ndescribed in paragraph 3 above).\n11.\nIt is understood and agreed that money damages would be an insufficient remedy for any breach of this\nletter agreement by you or your Representatives and that without prejudice to the rights and remedies otherwise\navailable to the Company, the Company is entitled to equitable relief by way of injunction, specific performance or\notherwise if you or any of your Representatives breach or threaten to breach any of the provisions of this letter\nagreement without the necessity to prove actual damages or post any bond. You agree to reimburse the Company for\nreasonable legal fees and other costs incurred to enforce this letter agreement.\n12.\nIt is further understood and agreed that no failure or delay by the Company in exercising any right,\npower or privilege under this letter agreement, and no course of dealing between the parties, will operate as a waiver\nthereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any\nright, power or privilege under this letter agreement.\n13.\nThis letter agreement and all disputes and controversies arising hereunder or related hereto, will be\ngoverned and construed in accordance with the Laws of the State of Indiana without regard to principles of conflicts of\nlaw that would apply any other law.\n14.\nAny action or proceeding arising out of or relating to this letter agreement or the transactions\ncontemplated hereby may be brought in the courts of the State of Indiana or, if it has or can acquire jurisdiction, in the\nUnited States District Court for the Northern District of Indiana. Each of the parties knowingly, voluntarily and irrevocably\nsubmits to the exclusive jurisdiction of each such court in any such action or proceeding and waives any objection it may\nnow or hereafter have to venue or to convenience of forum. You further agree that service of any process, summons,\nnotice or document by United States certified mail to your address set forth above will be effective service of process for\nany action or proceeding brought against you in any such court.\n15.\nAny assignment of this letter agreement by you without the Company's prior written consent is void.\n16.\nIf any provision of this letter agreement is determined by a court of competent jurisdiction to be invalid,\nillegal or unenforceable, in whole or in part, the remaining provisions of this letter agreement will remain in full force and\neffect to the fullest extent permitted by applicable law.\n17.\nExcept as set forth in Section 6 and Section 8, all of the obligations of the parties under this letter\nagreement shall continue in perpetuity.\n-\n4-\n18.\nThis letter agreement contains the entire agreement between you and the Company concerning\nconfidentiality of the Evaluation Material. No modification of this letter agreement or waiver of the terms and conditions\nhereof will be binding upon you or the Company, unless approved in writing by each of you and the Company.\n19.\nThis letter agreement may be executed in any number of counterparts, including by electronic\ntransmission in portable document format or “tiff' format, and each of such counterparts shall for all purposes be deemed\noriginal, and all such counterparts shall together constitute one and the same instrument.\n[Signature page follows.]\n-\n5-\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to\nthe undersigned, whereupon this letter agreement will become a binding agreement between you and the Company.\nVery truly yours,\nPROJECT REDHAWK\nSupreme Industries, Inc.\nBy: /s/ Matthew W. Long\nName: Matthew W. Long\nTitle: Chief Financial Officer\nAgreed and accepted as of the date first written above\nWABASH NATIONAL CORPORATION\nBy: /s/ James A. Scarcelli\nName: James A. Scarcelli\nTitle: Vice President, Corporate Strategy
d7f13a42cee7413d83f279f1a0f21b5c.pdf	jurisdiction	CONFIDENTIAL AND PROPRIETARY\nExhibit S - Form of Confidentiality Agreement\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (this “Agreement”) is made as of the ___ day of _____________,\n20__, by and between ___________________ (the “Disclosing Party’) and ________________ (the\n“Recipient”).\nWHEREAS, the Disclosing Party is a party to the Construction Completion Agreement, dated\nas of ______________, between Georgia Power Company for itself and as agent for the Vogtle Owners\n(collectively “Owners”) and Bechtel Power Corporation (“Bechtel”) under which Bechtel will perform certain\nagreed-to services for Owners for the completion of the Vogtle 3 & 4 project (“Construction Completion\nAgreement”); and\nWHEREAS, the Disclosing Party desires to disclose to Recipient certain confidential and/or\nproprietary information which is either marked as being confidential at the time of disclosure, or of a nature\nthat the Recipient can reasonably be expected to ascertain the confidential nature of such information at the\ntime of receipt (in either case, “Confidential and Proprietary Information”) of Disclosing Party, Bechtel,\nOwners, Westinghouse Electric Company, LLC (“Westinghouse”), WECTEC Global Project Services Inc.\n(“WECTEC”), and/or another third party, as the case may be; and\nWHEREAS, under the terms of the Construction Completion Agreement, the Disclosing Party\nand the Recipient are required to enter into this Agreement as a condition to disclosure of such Confidential\nand Proprietary Information to the Recipient.\nNOW THEREFORE, for and in consideration of the premises and the mutual promises\nhereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby\nacknowledged, the parties hereto hereby agree as follows:\n1.\nRecipient shall maintain the confidentiality of all Confidential and Proprietary Information\ndisclosed to it hereunder, and shall not use such Confidential and Proprietary Information for any purpose other\nthan the purposes of construction, testing, completion and defense of ITAACs, startup, trouble-shooting,\nresponse to plant events, inspection, evaluation of system or component performance, scheduling,\ninvestigations, operation, maintenance, training, repair, licensing, modification, decommissioning and\ncompliance with laws or the requirements of governmental authorities, in each case as it relates to the Vogtle\n3&4 project (the “Purpose”).\n__________________________\n2 Owners are defined as Georgia Power Company, a Georgia Corporation, Oglethorpe Power Corporation (An Electric\nMembership Corporation), an electric membership corporation formed under the laws of the State of Georgia, Municipal\nElectric Authority of Georgia, a public body corporate and politic and an instrumentality of the State of Georgia, MEAG\nPower SPVJ, LLC, MEAG Power SPVM, LLC, MEAG Power SPVP, LLC, each a Georgia limited liability company,\nand The City of Dalton, Georgia, an incorporated municipality in the State of Georgia acting by and through its Board of\nWater, Light and Sinking Fund Commissioners. Southern Nuclear Operating Company, Inc. (“SNC”) is the licensed\noperator of Vogtle 3 and 4 and is Owners’ agent for the purposes of implementation and administration of the\nConstruction Completion Agreement.\nCONFIDENTIAL AND PROPRIETARY\nExhibit S - Form of Confidentiality Agreement\n2. Recipient shall not transmit or further disclose such Confidential and Proprietary Information to\nany third party, including, without limitation, parent organizations of Recipient, sister organizations of\nRecipient, subsidiaries of Recipient, consultants of Recipient or subcontractors of Recipient, unless such third\nparty has entered into a confidentiality agreement with Disclosing Party substantially in the form of this\nAgreement.\n3. In the event that the Recipient or any of its representatives are requested or required in any\nproceeding or by any governmental authority to disclose any of the Confidential and Proprietary Information,\nthe Recipient shall provide the Disclosing Party with prompt written notice of such request or requirement so\nthat the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance\nwith the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of\na waiver from the Disclosing Party, the Recipient or any of its representatives are nonetheless, in the written\nopinion of their counsel, legally compelled to disclose such information, it or its representatives may, without\nliability hereunder, disclose only that portion of the Confidential and Proprietary Information which such\ncounsel advises the Recipient is legally required to be disclosed, provided that the Recipient exercises its\nreasonable efforts to preserve the confidentiality of the Confidential and Proprietary Information, including,\nwithout limitation, by cooperating with the Disclosing Party to obtain an appropriate protective order or other\nreliable assurance that confidential treatment will be accorded the Confidential and Proprietary Information.\n4. Except where necessary in furtherance of the Purpose, Recipient shall not make any copy or in any\nway reproduce or excerpt such Confidential and Proprietary Information except as authorized by the Disclosing\nParty in writing prior to such reproduction or excerption. Any such copies or excerpts shall include all\nproprietary notices and designations. Upon the written request of the Disclosing Party, the Confidential and\nProprietary Information provided hereunder and any such copies or excerpts thereof shall be returned to the\nDisclosing Party, or, at the sole option and request of the Disclosing Party, Recipient shall destroy such\ninformation and any such copies and/or excerpts and certify in writing to the Disclosing Party that such\ninformation has in fact been destroyed (but for a single copy retained for legal archival purposes, which shall\ncontinue to be subject to the provisions of this Agreement).\n5. Nothing herein shall apply to any information which is:\n(a) now generally known or readily available to the trade or public or which becomes so\nknown or readily available without fault of the Recipient; or\n(b) rightfully possessed by the Recipient without restriction prior to its disclosure hereunder\nby the Disclosing Party; or\n(c) acquired from a third party without restriction, provided that the Recipient does not know,\nor have reason to know, or is not informed subsequent to disclosure by such third\nparty and prior to disclosure by the Recipient that such information was acquired\nunder an obligation of confidentiality.\nCONFIDENTIAL AND PROPRIETARY\nExhibit S - Form of Confidentiality Agreement\n6. It is mutually understood that nothing herein shall be construed as granting or implying any right\nunder any letters patent, or to use any Confidential and Proprietary Information claimed therein, or as\npermitting Recipient to unfairly obtain the right to use Confidential and Proprietary Information which\nbecomes publicly known through an improper act or omission on its part.\n7. Neither Owners, Bechtel, Westinghouse, WECTEC, nor their affiliates make any warranty or\nrepresentation whatsoever to the Recipient as to the sufficiency or accuracy of the Confidential and Proprietary\nInformation provided hereunder, the ability of Recipient to use the Confidential and Proprietary Information\nfor its intended purpose, or as to the result to be obtained therefrom.\n8. Neither Owners, Bechtel, Westinghouse, WECTEC, nor their affiliates, suppliers, or subcontractors\nof any tier shall be liable with respect to or resulting from the use (or the results of such use) or misuse of any\nConfidential and Proprietary Information furnished hereunder.\n9. Nothing in this Agreement shall obligate the Disclosing Party to provide any specific information\nthat it otherwise desires to withhold.\n10. Recipient agrees to fully comply with all laws and regulations with regard to the Confidential and\nProprietary Information transmitted hereunder.\n11. Recipient shall not, at any time file, cause or authorize the filing of any patent application in any\ncountry in respect of any invention derived from the Confidential and Proprietary Information supplied\nhereunder.\n12. Recipient shall not assign this Agreement. This Agreement shall be binding upon the Recipient\nand its successors and shall benefit and be enforceable by Owners, Bechtel, Westinghouse, or WECTEC and\neach of their respective successors and assigns.\n13.\nIf any of the terms of this Agreement are violated by Recipient, the Owners, Bechtel,\nWestinghouse, or WECTEC, as the case may be, shall be entitled to an injunction to be issued by any court of\ncompetent jurisdiction, enjoining and restraining the Recipient from such violation.\n14. If any provision of this Agreement is held invalid in any respect, it shall not affect the validity of\nany other provision of this Agreement. If any provision of this Agreement is held to be unreasonable as to the\ntime, scope or otherwise, it shall be construed by limiting and reducing it so as to be enforceable under then\napplicable law.\n15. This Agreement shall be governed in accordance with the laws of the State of Georgia without\ngiving effect to any choice of law, provision, or rule (whether of Georgia or any other jurisdiction) that would\ncause the application of the laws of any jurisdiction other than Georgia.\nCONFIDENTIAL AND PROPRIETARY\nExhibit S - Form of Confidentiality Agreement\nIN WITNESS WHEREOF, the parties have hereto set their respective signatures to this Agreement.\nDISCLOSING PARTY:\nBy:\nName:\nTitle:\nAddress:\nRECIPIENT:\nBy:\nName:\nTitle:\nAddress:	CONFIDENTIAL AND PROPRIETARY\nExhibit S - Form of C onfidentiality Agreement\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (this ”A greement”) is made as of the ___ day of ,\n20__, by and between (the ”Disclosing Party’) and “___—___“(the\n”Recipient”).\nWHEREAS, the Disclosing Party is a party to the Construction Completion Agreement, dated\nas of ______________ , between Georgia Power Company for itself and as agent for the Vogtle Owners\n(collectively ”Owners”) and Bechtel Power Corporation (”Bechtel”) under which Bechtel will perform certain\nagreed-to services for Owners for the completion of the Vogtle 3 & 4 project (”Construction Completion\nA greement" ) ; and\nWHEREAS, the Disclosing Party desires to disclose to Recipient certain confidential and/or\nproprietary information which is either marked as being confidential at the time of disclosure, or of a nature\nthat the Recipient can reasonably be expected to ascertain the confidential nature of such information at the\ntime of receipt (in either case, ”Confidential and Proprietary Information”) of Disclosing Party, Bechtel,\nOwners, Westinghouse Electric Company, LLC (”Westinghouse”), WECTEC Global Project Services Inc.\n(”WECTEC”), and/or another third party, as the case may be; and\nWHEREAS, under the terms of the Construction Completion Agreement, the Disclosing Party\nand the Recipient are required to enter into this Agreement as a condition to disclosure of such Confidential\nand Proprietary Information to the Recipient.\nNOW THEREFORE, for and in consideration of the premises and the mutual promises\nhereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby\nacknowledged, the parties hereto hereby agree as follows:\n1. Recipient shall maintain the confidentiality of all Confidential and Proprietary Information\ndisclosed to it hereunder, and shall not use such Confidential and Proprietary Information for any purpose other\nthan the purposes of construction, testing, completion and defense of ITAACs, startup, trouble-shooting,\nresponse to plant events, inspection, evaluation of system or component performance, scheduling,\ninvestigations, operation, maintenance, training, repair, licensing, modification, decommissioning and\ncompliance with laws or the requirements of governmental authorities, in each case as it relates to the Vogtle\n3&4 project (the ”Purpose”).\n \n2 Owners are defined as Georgia Power Company, a Georgia Corporation, Oglethorpe Power Corporation (An Electric\nMembership Corporation), an electric membership corporation formed under the laws of the State of Georgia, Municipal\nElectric Authority of Georgia, a public body corporate and politic and an instrumentality of the State of Georgia, MEAG\nPower SPV], LLC, MEAG Power SPV M, LLC, MEAG Power SPV P, LLC, each a Georgia limited liability company,\nand The City of Dalton, Georgia, an incorporated municipality in the State of Georgia acting by and through its Board of\nWater, Light and Sinking Fund Commissioners. Southern Nuclear Operating Company, Inc. ("SNC”) is the licensed\noperator of Vogtle 3 and 4 and is Owners’ agent for the purposes of implementation and administration of the\nConstruction Completion Agreement.\nCONFIDENTIAL AND PROPRIETARY\nExhibit S - Form of C onfidentiality Agreement\n2. Recipient shall not transmit or further disclose such Confidential and Proprietary Information to\nany third party, including, without limitation, parent organizations of Recipient, sister organizations of\nRecipient, subsidiaries of Recipient, consultants of Recipient or subcontractors of Recipient, unless such third\nparty has entered into a confidentiality agreement with Disclosing Party substantially in the form of this\nAgreement.\n3. In the event that the Recipient or any of its representatives are requested or required in any\nproceeding or by any governmental authority to disclose any of the Confidential and Proprietary Information,\nthe Recipient shall provide the Disclosing Party with prompt written notice of such request or requirement so\nthat the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance\nwith the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of\na waiver from the Disclosing Party, the Recipient or any of its representatives are nonetheless, in the written\nopinion of their counsel, legally compelled to disclose such information, it or its representatives may, without\nliability hereunder, disclose only that portion of the Confidential and Proprietary Information which such\ncounsel advises the Recipient is legally required to be disclosed, provided that the Recipient exercises its\nreasonable efforts to preserve the confidentiality of the Confidential and Proprietary Information, including,\nwithout limitation, by cooperating with the Disclosing Party to obtain an appropriate protective order or other\nreliable assurance that confidential treatment will be accorded the Confidential and Proprietary Information.\n4. Except where necessary in furtherance of the Purpose, Recipient shall not make any copy or in any\nway reproduce or excerpt such Confidential and Proprietary Information except as authorized by the Disclosing\nParty in writing prior to such reproduction or excerption. Any such copies or excerpts shall include all\nproprietary notices and designations. Upon the written request of the Disclosing Party, the Confidential and\nProprietary Information provided hereunder and any such copies or excerpts thereof shall be returned to the\nDisclosing Party, or, at the sole option and request of the Disclosing Party, Recipient shall destroy such\ninformation and any such copies and/or excerpts and certify in writing to the Disclosing Party that such\ninformation has in fact been destroyed (but for a single copy retained for legal archival purposes, which shall\ncontinue to be subject to the provisions of this Agreement).\n5. Nothing herein shall apply to any information which is:\n(a) now generally known or readily available to the trade or public or which becomes so\nknown or readily available without fault of the Recipient; or\n(b) rightfully possessed by the Recipient without restriction prior to its disclosure hereunder\nby the Disclosing Party; or\n(c) acquired from a third party without restriction, provided that the Recipient does not know,\nor have reason to know, or is not informed subsequent to disclosure by such third\nparty and prior to disclosure by the Recipient that such information was acquired\nunder an obligation of confidentiality.\nCONFIDENTIAL AND PROPRIETARY\nExhibit S - Form of C onfidentiality Agreement\n6. It is mutually understood that nothing herein shall be construed as granting or implying any right\nunder any letters patent, or to use any Confidential and Proprietary Information claimed therein, or as\npermitting Recipient to unfairly obtain the right to use Confidential and Proprietary Information which\nbecomes publicly known through an improper act or omission on its part.\n7. Neither Owners, Bechtel, Westinghouse, WECTEC, nor their affiliates make any warranty or\nrepresentation whatsoever to the Recipient as to the sufficiency or accuracy of the Confidential and Proprietary\nInformation provided hereunder, the ability of Recipient to use the Confidential and Proprietary Information\nfor its intended purpose, or as to the result to be obtained therefrom.\n8. Neither Owners, Bechtel, Westinghouse, WECTEC, nor their affiliates, suppliers, or subcontractors\nof any tier shall be liable with respect to or resulting from the use (or the results of such use) or misuse of any\nConfidential and Proprietary Information furnished hereunder.\n9. Nothing in this Agreement shall obligate the Disclosing Party to provide any specific information\nthat it otherwise desires to withhold.\n10. Recipient agrees to fully comply with all laws and regulations with regard to the Confidential and\nProprietary Information transmitted hereunder.\n11. Recipient shall not, at any time file, cause or authorize the filing of any patent application in any\ncountry in respect of any invention derived from the Confidential and Proprietary Information supplied\nhereunder.\n12. Recipient shall not assign this Agreement. This Agreement shall be binding upon the Recipient\nand its successors and shall benefit and be enforceable by Owners, Bechtel, Westinghouse, or WECTEC and\neach of their respective successors and assigns.\n13. If any of the terms of this Agreement are violated by Recipient, the Owners, Bechtel,\nWestinghouse, or WECTEC, as the case may be, shall be entitled to an injunction to be issued by any court of\ncompetent jurisdiction, enjoining and restraining the Recipient from such violation.\n14. If any provision of this Agreement is held invalid in any respect, it shall not affect the validity of\nany other provision of this Agreement. If any provision of this Agreement is held to be unreasonable as to the\ntime, scope or otherwise, it shall be construed by limiting and reducing it so as to be enforceable under then\napplicable law.\n15. This Agreement shall be governed in accordance with the laws of the State of Georgia without\ngiving effect to any choice of law, provision, or rule (whether of Georgia or any other jurisdiction) that would\ncause the application of the laws of any jurisdiction other than Georgia.\nCONFIDENTIAL AND PROPRIETARY\nExhibit S - Form of C onfidentiality Agreement\nIN WITNESS WHEREOF, the parties have hereto set their respective signatures to this Agreement.\nDISC L OSING PARTY:\nBy:\nName:\nTitle:\nA ddress:\nRECIPIENT:\nBy:\nName:\nTitle:\nA ddress:	CONFIDENTIAL AND PROPRIETARY\nExhibit S - Form of Confidentiality Agreement\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (this Agreement") is made as of the\nday of\n20_, by and between\n(the "Disclosing Party') and\n(the\n"Recipient")\nWHEREAS the Disclosing Party is a party to the Construction Completion A greement, dated\nas of\nbetween Georgia Power Company for itself and as agent for the Vogtle Owners\n(collectively "Owners") and Bechtel Power Corporation ("Bechtel") under which Bechtel will perform certain\nagreed-to services for Owners for the completion of the Vogtle 3 & 4 project ("Construction Completion\nAgreement"); and\nWHEREAS, the Disclosing Party desires to disclose to Recipient certain confidential and/or\nproprietary information which is either marked as being confidential at the time of disclosure, or of a nature\nthat the Recipient can reasonably be expected to ascertain the confidential nature of such information at the\ntime of receipt (in either case, "Confidential and Proprietary Information") of Disclosing Party, Bechtel,\nOwners, Westinghouse Electric Company, LLC "Westinghouse"), WECTEC Global Project Services Inc.\n("WECTEC"), and/or another third party, as the case may be; and\nWHEREAS, under the terms of the Construction Completion Agreement, the Disclosing Party\nand the Recipient are required to enter into this A greement as a condition to disclosure of such Confidential\nand Proprietary Information to the Recipient.\nNOW THEREFORE, for and in consideration of the premises and the mutual promises\nhereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby\nacknowledged, the parties hereto hereby agree as follows:\n1.\nRecipient shal maintain the confidentiality of all Confidential and Proprietary Information\ndisclosed to it hereunder, and shall not use such Confidential and Proprietary Information for any purpose other\nthan the purposes of construction, testing, completion and defense of ITAACs, startup, trouble-shooting,\nresponse to plant events, inspection, evaluation of system or component performance, scheduling,\ninvestigations, operation, maintenance, training, repair, licensing, modification, decommissioning and\ncompliance with laws or the requirements of governmental authorities, in each case as it relates to the Vogtle\n3&4 project (the "Purpose").\nOwners are defined as Georgia Power Company, a Georgia Corporation, Oglethorpe Power Corporation (An Electric\nMembership Corporation), an electric membership corporation formed under the laws of the State of Georgia, Municipal\nElectric Authority of Georgia, a public body corporate and politic and an instrumentality of the State of Georgia, MEAG\nPower SPVJ, LLC, MEAG Power SPVM, LLC, MEAG Power SPVP, LLC, each a Georgia limited liability company,\nand The City of Dalton, Georgia an incorporated municipality in the State of Georgia acting by and through its Board of\nWater, Light and Sinking Fund Commissioners. Southern Nuclear Operating Company, Inc. ("SNC") is the licensed\noperator of Vogtle 3 and 4 and is Owners' agent for the purposes of implementation and administration of the\nConstruction Completion Agreement.\nCONFIDENTIAL AND PROPRIETARY\nExhibit S Form of Confidentiality Agreement\n2. Recipient shall not transmit or further disclose such Confidential and Proprietary Information to\nany third party, including, without limitation, parent organizations of Recipient, sister organizations of\nRecipient, subsidiaries of Recipient, consultants of Recipient or subcontractors of Recipient, unless such third\nparty has entered into a confidentiality agreement with Disclosing Party substantially in the form of this\nA greement.\n3.\nIn the event that the Recipient or any of its representatives are requested or required in any\nproceeding or by any governmental authority to disclose any of the Confidential and Proprietary Information,\nthe Recipient shall provide the Disclosing Party with prompt written notice of such request or requirement so\nthat the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance\nwith the provisions of this greement. If, in the absence of a protective order or other remedy or the receipt of\na\nwaiver\nfrom\nthe\nDisclosing\nParty,\nthe\nRecipient\nor\nany\nof\nits\nrepresentatives\nare\nnonetheless,\nin\nthe\nwritten\nopinion of their counsel, legally compelled to disclose such information, it or its representatives may, without\nliability hereunder, disclose only that portion of the Confidential and Proprietary Information which such\ncounsel advises the Recipient is legally required to be disclosed, provided that the Recipient exercises its\nreasonable efforts to preserve the confidentiality of the Confidential and Proprietary Information, including,\nwithout limitation, by cooperating with the Disclosing Party to obtain an appropriate protective order or other\nreliable assurance that confidential treatment will be accorded the Confidential and Proprietary Information.\n4. Except where necessary in furtherance of the Purpose, Recipient shall not make any copy or in any\nway reproduce or excerpt such Confidential and Proprietary Information except as authorized by the Disclosing\nParty in writing prior to such reproduction or excerption. Any such copies or excerpts shall include all\nproprietary notices and designations. Upon the written request of the Disclosing Party, the Confidential and\nProprietary Information provided hereunder and any such copies or excerpts thereof shall be returned to the\nDisclosing Party, or, at the sole option and request of the Disclosing Party, Recipient shall destroy such\ninformation and any such copies and/or excerpts and certify in writing to the Disclosing Party that such\ninformation has in fact been destroyed (but for a single copy retained for legal archival purposes, which shall\ncontinue to be subject to the provisions of this A greement).\n5. Nothing herein shall apply to any information which is:\n(a) now generally known or readily available to the trade or public or which becomes so\nknown or readily available without fault of the Recipient; or\n(b) rightfully possessed by the Recipient without restriction prior to its disclosure hereunder\nby the Disclosing Party; or\n(c) acquired from a third party without restriction, provided that the Recipient does not know,\nor have reason to know, or is not informed subsequent to disclosure by such third\nparty and prior to disclosure by the Recipient that such information was acquired\nunder an obligation of confidentiality.\nCONFIDENTIAL AND PROPRIETARY\nExhibit S Form of Confidentiality Agreement\n6.\nIt is mutually understood that nothing herein shall be construed as granting or implying any right\nunder any letters patent, or to use any Confidential and Proprietary Information claimed therein, or as\npermitting Recipient to unfairly obtain the right to use Confidential and Proprietary Information which\nbecomes publicly known through an improper act or omission on its part.\n7.\nNeither Owners, Bechtel, Westinghouse, WECTEC, nor their affiliates make any warranty or\nrepresentation whatsoever to the Recipient as to the sufficiency or accuracy of the Confidential and Proprietary\nInformation provided hereunder, the ability of Recipient to use the Confidential and Proprietary Information\nfor its intended purpose, or as to the result to be obtained therefrom.\n8. Neither Owners, Bechtel, Westinghouse, WECTEC, nor their affiliates, suppliers, or subcontractors\nof any tier shall be liable with respect to or resulting from the use (or the results of such use) or misuse of any\nConfidential and Proprietary Information furnished hereunder.\n9. Nothing in this A greement shall obligate the Disclosing Party to provide any specific information\nthat it otherwise desires to withhold.\n10. Recipient agrees to fully comply with all laws and regulations with regard to the Confidential and\nProprietary Information transmitted hereunder.\n11. Recipient shall not, at any time file, cause or authorize the filing of any patent application in any\ncountry in respect of any invention derived from the Confidential and Proprietary Information supplied\nhereunder.\n12. Recipient shall not assign this Agreement. This A greement shall be binding upon the Recipient\nand its successors and shall benefit and be enforceable by Owners, Bechtel, Westinghouse, or WECTEC and\neach of their respective successors and assigns.\n13.\nIf any of the terms of this A greement are violated by Recipient, the Owners, Bechtel,\nWestinghouse, or WECTEC, as the case may be, shall be entitled to an injunction to be issued by any court of\ncompetent jurisdiction, enjoining and restraining the Recipient from such violation.\n14. If any provision of this A greement is held invalid in any respect, it shall not affect the validity of\nany other provision of this Agreement. If any provision of this A greement is held to be unreasonable as to the\ntime, scope or otherwise, it shall be construed by limiting and reducing it so as to be enforceable under then\napplicable law.\n15. This A greement shall be governed in accordance with the laws of the State of Georgia without\ngiving effect to any choice of law, provision, or rule (whether of Georgia or any other jurisdiction) that would\ncause the application of the laws of any jurisdiction other than Georgia.\nCONFIDENTIAL AND PROPRIETARY\nExhibit S - Form of Confidentiality Agreement\nIN WITNESS WHEREOF, the parties have hereto set their respective signatures to this Agreement.\nDISCLOSING PARTY:\nBy:\nName:\nTitle:\nA ddress:\nRECIPIENT:\nBy:\nName:\nTitle:\nAddress:	CONFIDENTIAL AND PROPRIETARY\nExhibit S - Form of Confidentiality Agreement\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (this “Agreement”) is made as of the ___ day of _____________,\n20__, by and between ___________________ (the “Disclosing Party’) and ________________ (the\n“Recipient”).\nWHEREAS, the Disclosing Party is a party to the Construction Completion Agreement, dated\nas of ______________, between Georgia Power Company for itself and as agent for the Vogtle Owners\n(collectively “Owners”) and Bechtel Power Corporation (“Bechtel”) under which Bechtel will perform certain\nagreed-to services for Owners for the completion of the Vogtle 3 & 4 project (“Construction Completion\nAgreement”); and\nWHEREAS, the Disclosing Party desires to disclose to Recipient certain confidential and/or\nproprietary information which is either marked as being confidential at the time of disclosure, or of a nature\nthat the Recipient can reasonably be expected to ascertain the confidential nature of such information at the\ntime of receipt (in either case, “Confidential and Proprietary Information”) of Disclosing Party, Bechtel,\nOwners, Westinghouse Electric Company, LLC (“Westinghouse”), WECTEC Global Project Services Inc.\n(“WECTEC”), and/or another third party, as the case may be; and\nWHEREAS, under the terms of the Construction Completion Agreement, the Disclosing Party\nand the Recipient are required to enter into this Agreement as a condition to disclosure of such Confidential\nand Proprietary Information to the Recipient.\nNOW THEREFORE, for and in consideration of the premises and the mutual promises\nhereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby\nacknowledged, the parties hereto hereby agree as follows:\n1.\nRecipient shall maintain the confidentiality of all Confidential and Proprietary Information\ndisclosed to it hereunder, and shall not use such Confidential and Proprietary Information for any purpose other\nthan the purposes of construction, testing, completion and defense of ITAACs, startup, trouble-shooting,\nresponse to plant events, inspection, evaluation of system or component performance, scheduling,\ninvestigations, operation, maintenance, training, repair, licensing, modification, decommissioning and\ncompliance with laws or the requirements of governmental authorities, in each case as it relates to the Vogtle\n3&4 project (the “Purpose”).\n__________________________\n2 Owners are defined as Georgia Power Company, a Georgia Corporation, Oglethorpe Power Corporation (An Electric\nMembership Corporation), an electric membership corporation formed under the laws of the State of Georgia, Municipal\nElectric Authority of Georgia, a public body corporate and politic and an instrumentality of the State of Georgia, MEAG\nPower SPVJ, LLC, MEAG Power SPVM, LLC, MEAG Power SPVP, LLC, each a Georgia limited liability company,\nand The City of Dalton, Georgia, an incorporated municipality in the State of Georgia acting by and through its Board of\nWater, Light and Sinking Fund Commissioners. Southern Nuclear Operating Company, Inc. (“SNC”) is the licensed\noperator of Vogtle 3 and 4 and is Owners’ agent for the purposes of implementation and administration of the\nConstruction Completion Agreement.\nCONFIDENTIAL AND PROPRIETARY\nExhibit S - Form of Confidentiality Agreement\n2. Recipient shall not transmit or further disclose such Confidential and Proprietary Information to\nany third party, including, without limitation, parent organizations of Recipient, sister organizations of\nRecipient, subsidiaries of Recipient, consultants of Recipient or subcontractors of Recipient, unless such third\nparty has entered into a confidentiality agreement with Disclosing Party substantially in the form of this\nAgreement.\n3. In the event that the Recipient or any of its representatives are requested or required in any\nproceeding or by any governmental authority to disclose any of the Confidential and Proprietary Information,\nthe Recipient shall provide the Disclosing Party with prompt written notice of such request or requirement so\nthat the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance\nwith the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of\na waiver from the Disclosing Party, the Recipient or any of its representatives are nonetheless, in the written\nopinion of their counsel, legally compelled to disclose such information, it or its representatives may, without\nliability hereunder, disclose only that portion of the Confidential and Proprietary Information which such\ncounsel advises the Recipient is legally required to be disclosed, provided that the Recipient exercises its\nreasonable efforts to preserve the confidentiality of the Confidential and Proprietary Information, including,\nwithout limitation, by cooperating with the Disclosing Party to obtain an appropriate protective order or other\nreliable assurance that confidential treatment will be accorded the Confidential and Proprietary Information.\n4. Except where necessary in furtherance of the Purpose, Recipient shall not make any copy or in any\nway reproduce or excerpt such Confidential and Proprietary Information except as authorized by the Disclosing\nParty in writing prior to such reproduction or excerption. Any such copies or excerpts shall include all\nproprietary notices and designations. Upon the written request of the Disclosing Party, the Confidential and\nProprietary Information provided hereunder and any such copies or excerpts thereof shall be returned to the\nDisclosing Party, or, at the sole option and request of the Disclosing Party, Recipient shall destroy such\ninformation and any such copies and/or excerpts and certify in writing to the Disclosing Party that such\ninformation has in fact been destroyed (but for a single copy retained for legal archival purposes, which shall\ncontinue to be subject to the provisions of this Agreement).\n5. Nothing herein shall apply to any information which is:\n(a) now generally known or readily available to the trade or public or which becomes so\nknown or readily available without fault of the Recipient; or\n(b) rightfully possessed by the Recipient without restriction prior to its disclosure hereunder\nby the Disclosing Party; or\n(c) acquired from a third party without restriction, provided that the Recipient does not know,\nor have reason to know, or is not informed subsequent to disclosure by such third\nparty and prior to disclosure by the Recipient that such information was acquired\nunder an obligation of confidentiality.\nCONFIDENTIAL AND PROPRIETARY\nExhibit S - Form of Confidentiality Agreement\n6. It is mutually understood that nothing herein shall be construed as granting or implying any right\nunder any letters patent, or to use any Confidential and Proprietary Information claimed therein, or as\npermitting Recipient to unfairly obtain the right to use Confidential and Proprietary Information which\nbecomes publicly known through an improper act or omission on its part.\n7. Neither Owners, Bechtel, Westinghouse, WECTEC, nor their affiliates make any warranty or\nrepresentation whatsoever to the Recipient as to the sufficiency or accuracy of the Confidential and Proprietary\nInformation provided hereunder, the ability of Recipient to use the Confidential and Proprietary Information\nfor its intended purpose, or as to the result to be obtained therefrom.\n8. Neither Owners, Bechtel, Westinghouse, WECTEC, nor their affiliates, suppliers, or subcontractors\nof any tier shall be liable with respect to or resulting from the use (or the results of such use) or misuse of any\nConfidential and Proprietary Information furnished hereunder.\n9. Nothing in this Agreement shall obligate the Disclosing Party to provide any specific information\nthat it otherwise desires to withhold.\n10. Recipient agrees to fully comply with all laws and regulations with regard to the Confidential and\nProprietary Information transmitted hereunder.\n11. Recipient shall not, at any time file, cause or authorize the filing of any patent application in any\ncountry in respect of any invention derived from the Confidential and Proprietary Information supplied\nhereunder.\n12. Recipient shall not assign this Agreement. This Agreement shall be binding upon the Recipient\nand its successors and shall benefit and be enforceable by Owners, Bechtel, Westinghouse, or WECTEC and\neach of their respective successors and assigns.\n13.\nIf any of the terms of this Agreement are violated by Recipient, the Owners, Bechtel,\nWestinghouse, or WECTEC, as the case may be, shall be entitled to an injunction to be issued by any court of\ncompetent jurisdiction, enjoining and restraining the Recipient from such violation.\n14. If any provision of this Agreement is held invalid in any respect, it shall not affect the validity of\nany other provision of this Agreement. If any provision of this Agreement is held to be unreasonable as to the\ntime, scope or otherwise, it shall be construed by limiting and reducing it so as to be enforceable under then\napplicable law.\n15. This Agreement shall be governed in accordance with the laws of the State of Georgia without\ngiving effect to any choice of law, provision, or rule (whether of Georgia or any other jurisdiction) that would\ncause the application of the laws of any jurisdiction other than Georgia.\nCONFIDENTIAL AND PROPRIETARY\nExhibit S - Form of Confidentiality Agreement\nIN WITNESS WHEREOF, the parties have hereto set their respective signatures to this Agreement.\nDISCLOSING PARTY:\nBy:\nName:\nTitle:\nAddress:\nRECIPIENT:\nBy:\nName:\nTitle:\nAddress:
da530a36ab5feb39180e93a73618facd.pdf	jurisdiction party	EXHIBIT B\nCONFIDENTIALITY AGREEMENT\nThis CONFIDENTIALITY AGREEMENT (this “Agreement”), effective as of the date set forth last below, is made by and between the undersigned counter party (“Recipient”) and Aegerion Pharmaceuticals, Inc. ( “Aegerion”). In\nconsideration of the mutual agreements and other provisions of this Agreement, the parties hereto agree as follows:\n1. Scope of Confidential Information.\n1.1 “Confidential Information” means, subject to the exceptions set forth in Section 1.2, any information or data or materials, regardless of whether it is in tangible form, that is disclosed or otherwise made available by or on behalf of\nAegerion to Recipient before or during the term of this Agreement. “Confidential Information” includes but is not limited to: (a) patent and patent applications; (b) trade secrets; (c) third party information; and (d) ideas, gene sequences,\ncell lines, samples, chemical compounds, clinical data, clinical trial design, assays, biological materials, techniques, sketches, drawings, works of authorship, models, inventions, know-how and processes pertaining to the current, future\nand proposed business, products and services of Aegerion.\n1.2 “Confidential Information” shall not include any information that: (a) appears in issued patents or printed publications in integrated form or which otherwise is or becomes generally known in the trade other than through Recipient’s\nfailure to observe any or all terms and conditions hereof; provided that the foregoing shall not be interpreted to create any express or implied license, or the right to obtain a license, to any patents which may be issued to Aegerion; (b) is\nmade available to Recipient by a third party who is lawfully in possession of such information, and who is not in violation of any confidentiality obligation in favor of Aegerion; or (c) Recipient can show by written record was in available\nto or in possession of Recipient (free of any confidentiality obligation in favor of Aegerion known to Recipient at the time of disclosure or availability) prior to disclosure of such information by Aegerion to Recipient, provided that\nCounter must promptly notify Aegerion of any prior knowledge in the manner provided in Section 2.4 below. Notwithstanding the foregoing, (i) technical information disclosed under this Agreement shall not be deemed to be within the\nforegoing exceptions merely because such information is embraced by more general information in the public domain or in Recipient’s possession, and (ii) any combination of features shall not be deemed to be within the foregoing\nexceptions merely because individual features are in the public domain or in Recipient’s possession, but only if the combination itself and its principle of operation are in the public domain or in Recipient’s possession.\n2. Use and Disclosure of Confidential Information.\n2.1 Recipient shall only use the Confidential Information internally solely for the purpose of evaluating a potential business relationship between Recipient and Aegerion (the “Permitted Purpose”). Recipient must keep secret and shall\nnever, without the prior written consent of Aegerion, directly or indirectly, disclose, publish, divulge, furnish or make accessible to anyone all or any portion of the Confidential Information, other than furnishing such Confidential\nInformation to (a) Recipient’s employees and consultants who are required to have access to such Confidential Information in connection with the Permitted Purpose, and (b) Recipient’s professional, licensed advisers (i.e., lawyers and\naccountants), in each case, during the time that Recipient is permitted to retain such Confidential Information hereunder; provided that any and all such employees, consultants are bound by written agreements or, in the case of\nprofessional advisers, ethical duties, respecting the Confidential Information in the manner set forth in this Agreement.\n2.2 Recipient shall use at least reasonable care and adequate measures to protect the confidentiality of the Confidential Information of Aegerion and to ensure that any Confidential Information of Aegerion is not disclosed or otherwise\nmade available to other persons or used in violation of this Agreement. Without limiting any of the foregoing, such measures shall be at least the equivalent of measures which Recipient uses to protect Recipient’s own most valuable\nproprietary information.\n2.3 In the event that Recipient is required by law to make any disclosure of any of the Confidential Information of Aegerion, by subpoena, judicial or administrative order or otherwise, Recipient shall first give written notice of such\nrequirement to Aegerion, and shall permit Aegerion to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to Aegerion in seeking to obtain such\nprotection.\n2.4 Recipient agrees to notify Aegerion promptly in writing if (a) Recipient becomes aware of any breach of this Agreement with respect to the Confidential Information of Aegerion in Recipient’s possession; (b) subsequent to disclosure\nof any\nB-1\nCONFIDENTIALITY AGREEMENT\nConfidential Information by Aegerion, information is disclosed to Recipient in the manner described in Section 1.2; or (c) upon disclosure of Confidential Information by Aegerion, Recipient has prior knowledge of the same.\n2.5 Recipient shall not embody any of the Confidential Information of Aegerion in any of Recipient’s products, processes or services, or duplicate or exploit any of such Confidential Information in Recipient’s business, or otherwise use\nany of the Confidential Information for any purpose other than for the Permitted Purpose.\n3. Certain Rights and Limitations.\n3.1 All Confidential Information shall remain the property of Aegerion. The provision of Confidential Information hereunder shall not transfer any right, title or interest in such information to Recipient. Aegerion does not grant Recipient\nany express or implied right to or under Aegerion’s or another party’s patents, copyrights, trademarks, trade secret information or other proprietary rights.\n3.2 Recipient shall not remove, overprint or deface any notice of confidentiality, copyright, trademark, logo, legend or other notices of ownership or confidentiality from any originals or copies of Confidential Information it obtains from\nAegerion.\n3.3 This Agreement imposes no obligations on either party to exchange any Confidential Information or to purchase, sell, license, transfer or otherwise transact in any technology, services or products.\n3.4 Confidential Information disclosed by the parties under this Agreement may be subject to export controls under the laws of the United States. Each party shall comply with such laws and agrees not to knowingly export, re-export or\ntransfer Confidential Information of the other party without first obtaining all required United States authorizations or licenses.\n3.5 All tangible embodiments of the Confidential Information of Aegerion (e.g., drawings, memoranda and notes) and all copies thereof, whether in hard-copy or machine-readable form and whether supplied by Aegerion or made by or for\nRecipient (collectively, the “Tangible Embodiments”), shall at all times be and remain the exclusive property of Aegerion.\n3.6 Recipient shall provide upon Aegerion’s request a certification that access and use is being controlled in accordance with this Agreement. Aegerion shall have the right to audit to verify compliance with this Agreement.\n4. Remedies. Recipient acknowledges that a breach by it of any of the terms of this Agreement would cause irreparable harm to Aegerion for which Aegerion could not be adequately compensated by money damages. Accordingly,\nRecipient agrees that, in addition to all other remedies available to Aegerion in an action at law, in the event of any breach or threatened breach by Recipient of the terms of this Agreement, Aegerion shall, without the necessity of proving\nactual damages or posting any bond or other security, be entitled to temporary and permanent injunctive relief, including, but not limited to, specific performance of the terms of this Agreement.\n5. Termination.\n5.1 This Agreement shall remain in effect until it is terminated by either party with thirty (30) days prior written notice. The terms and conditions of this Agreement shall survive any such termination with respect to Confidential\nInformation that is disclosed prior to the effective date of termination.\n5.2 Upon the earlier of (a) the termination of this Agreement, (b) Aegerion’s written request or (c) such time as Recipient no longer requires the Confidential Information for the Permitted Purpose, Recipient agrees to promptly return to\nAegerion or destroy all Confidential Information and any Tangible Embodiments that are in the possession of Recipient and to certify the return or destruction of all such Confidential Information and embodiments.\n6. Warranty. NO WARRANTY IS MADE BY EITHER PARTY UNDER THIS AGREEMENT. ANY INFORMATION EXCHANGED UNDER THIS AGREEMENT IS PROVIDED “AS IS. ”\n7. Miscellaneous. This Agreement does not create any agency or partnership relationship between the parties hereto. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey governing\nsuch agreements, without regard to conflicts-of-law principles. The sole and exclusive jurisdiction and venue for any litigation arising out of this Agreement shall be an appropriate federal or state court located in the State of New Jersey,\nand the parties agree not to raise, and waive, any objections or defenses based upon venue or forum non conveniens. This Agreement contains the complete and exclusive agreement of the parties with respect to the subject matter hereof\nand supersedes all prior agreements and understandings whether written or oral, express or implied. Except where expressly indicated otherwise, the words “written” or “in writing” shall include, but not be limited to, written or printed\ndocuments, in any format now know or later developed including electronic and facsimile transmissions and computer disks or tapes\nB-2\nCONFIDENTIALITY AGREEMENT\n(whether machine or user readable). If any provision of this Agreement is held invalid, illegal or unenforceable by a court of competent jurisdiction, such shall not affect any other provision of this Agreement, which shall remain in full\nforce and effect. No amendment or alteration of the terms of this Agreement shall be effective unless made in writing and executed by both parties hereto. A failure or delay in exercising any right in respect to this Agreement shall not be\npresumed to operate as a waiver, and a single or partial exercise of any right shall not be presumed to preclude any subsequent or further exercise of that right or the exercise of any other right. Any modification or waiver of any provision\nof this Agreement shall not be effective unless made in writing. Any such waiver shall be effective only in the specific instance and for the purpose given.\nIN WITNESS WHEREOF, the parties have caused this Confidentiality Agreement to be executed below by their duly authorized signatories.\nAEGERION PHARMACEUTICALS, INC .\nBy:\nBy:\nName:\nName:\nTitle:\nTitle:\nDate:\nDate:\nAddress for notices to Recipient:\nAddress for notices to Aegerion:\nB-3	EXHIBIT B\nCONFIDENTIALITY AGREEMENT\nThis CONFID ENTIA LITY AG REEMENT (this "A greement" ), effective as of the date set forth last below, is made by and between the undersigned counter party (”Recipient") and Aegerion Pharmaceuticals, Inc. (”A egerion" ). In\nconsideration of the mutual agreements and other provisions of this Agreement, the parties hereto agree as follows:\n1. Scope of Confidential Information.\n1.1 "Confidential Information" means, subject to the exceptions set forth in Section 1.2, any information or data or materials, regardless of whether it is in tangible form, that is disclosed or otherwise made available by or on behalf of\nAegerion to Recipient before or during the term of this Agreement. ”Confidential Information" includes but is not limited to: (a) patent and patent applications; (b) trade secrets; (c) third party information,- and (d) ideas, gene sequences,\ncell lines, samples, chemical compounds, clinical dam, clinical trial design, assays, biological materials, techniques, sketches, drawings, works of authorship, models, inventions, know-how and processes pertaining to the current, future\nand proposed business, products and services of Aegerion.\n1.2 "Confidential Information" shall not include any information that: (a) appears in issued patents or printed publications in integrated form or which otherwise is or becomes generally known in the trade other than through Recipient’s\nfailure to observe any or all terms and conditions hereof; wded that the foregoing shall not be interpreted to create any express or implied license, or the right to obtain a license, to any patents which may be issued to Aegerion; (b) is\nmade available to Recipient by a third party who is lawfully in possession of such information, and who is not in violation of any confidentiality obligation in favor of Aegerion,- or (c) Recipient can show by written record was in available\nto or in possession of Recipient (free of any confidentiality obligation in favor of Aegerion known to Recipient at the time of disclosure or availability) priorto disclosure of such information by Aegerion to Recipient, provided that\nCounter must promptly notify Aegerion of any prior knowledge in the manner provided in Section 2.4 below. Notwithsmnding the foregoing, (i) technical information disclosed under this Agreement shall not be deemed to be within the\nforegoing exceptions merely because such information is embraced by more general information in the public domain or in Recipient’s possession, and (ii) any combination of features shall not be deemed to be within the foregoing\nexceptions merely because individual features are in the public domain or in Recipient’s possession, but only if the combination itself and its principle of operation are in the public domain or in Recipient's possession.\n2. Use and Disclosure of Confidential Information.\n2.1 Recipient shall only use the Confidential Information internally solely for the purpose of evaluating a potential business relationship between Recipient and Aegerion (the "Permitted Purpose"). Recipient must keep secret and shall\nnever, without the prior written consent of Aegerion, directly or indirectly, disclose, publish, divulge, fumish or make accessible to anyone all or any portion of the Confidential Information, other than furnishing such Confidential\nInformation to (a) Recipient's employees and consultants who are required to have access to such Confidential Information in connection with the Permitted Purpose, and (b) Recipient' s professional, licensed advisers (i.e., lawyers and\naccountants), in each case, during the time that Recipient is permitted to retain such Confidential Information hereunder: provided that any and all such employees, consiilmnts are bound by written agreements or, in the case of\nprofessional advisers, ethical duties, respecting the Confidential Information in the manner set forth in this Agreement.\n2.2 Recipient shall use at least reasonable care and adequate measures to protect the confidentiality of the Confidential Information of Aegerion and to ensure that any Confidential Information of Aegerion is not disclosed or otherwise\nmade available to other persons or used in violation of this Agreement Without limiting any of the foregoing, such measures shall be at least the equivalent of measures which Recipient uses to protect Recipient's own most valuable\nproprietary information.\n2.3 In the event that Recipient is required by law to make any disclosure of any of the Confidential Information of Aegerion, by subpoena, judicial or administrative order or otherwise, Recipient shall first give written notice of such\nrequirement to Aegerion, and shall permit Aegerion to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to Aegerion in seeking to obtain such\nprotection.\n2.4 Recipient agrees to notify Aegerion promptly in writing if (a) Recipient becomes aware of any breach of this Agreement with respect to the Confidential Information of Aegerion in Recipient's possession; (b) subsequent to disclosure\nof any\nB-l\nCONFIDENTIALITY AGREEMENT\nConfidential Information by Aegerion, information is disclosed to Recipient in the manner described in Section 1.2,- or (c) upon disclosure of Confidential Information by Aegerion, Recipient has prior knowledge of the same.\n2.5 Recipient shall not embody any of the Confidential Information of Aegerion in any of Recipient’s products, processes or services, or duplicate or exploit any of such Confidential Information in Recipient’s business, or otherwise use\nany of the Confidential Information for any purpose other than for the Permitted Purpose.\n3. Cermin Rights and Limitations.\n3.1 All Confidential Information shall remain the property of Aegerion. The provision of Confidential Information hereunder shall not transfer any right, title or interest in such information to Recipient. Aegerion does not grant Recipient\nany express or implied right to or under Aegerion’s or another party's patents, copyrights, trademarks, trade secret information or other proprietary rights.\n3.2 Recipient shall not remove, overprint or deface any notice of confidentiality, copyright, trademark, logo, legend or other notices of ownership or confidentiality from any originals or copies of Confidential Information it obtains from\nA egerion.\n3.3 This Agreement imposes no obligations on either party to exchange any Confidential Information orto purchase, sell, license, transfer or otherwise transact in any technology, services or products.\n3.4 Confidential Information disclosed by the parties under this Agreement may be subject to export controls under the laws of the United Smtes. Each party shall comply with such laws and agrees not to knowingly export, re-export or\ntransfer Confidential Information of the other party without first obtaining all required United States authorizations or licenses.\n3.5 All tangible embodiments of the Confidential Information of Aegerion (e.g., drawings, memoranda and notes) and all copies thereof, whether in hard-copy or machine-readable form and whether supplied by Aegerion or made by or for\nRecipient (collectively, the "Tangible Embodiments"), shall at all times be and remain the exclusive property of Aegerion.\n3.6 Recipient shall provide upon Aegerion's request a certification that access and use is being controlled in accordance with this Agreement. Aegerion shall have the right to audit to verify compliance with this Agreement\n4. Remedies. Recipient acknowledges that a breach by it of any of the terms of this Agreement would cause irreparable harm to Aegerion for which Aegerion could not be adequately compensated by money damages. Accordingly,\nRecipient agrees that, in addition to all other remedies available to Aegerion in an action at law, in the event of any breach or threatened breach by Recipient of the terms of this Agreement, Aegerion shall, without the necessity of proving\nactual damages or posting any bond or other security, be entitled to temporary and permanent injunctive relief, including, but not limited to, specific performance of the terms of this Agreement.\n5. Termination.\n5.1 This Agreement shall remain in effect until it is terminated by either party with thirty (30) days prior written notice. The terms and conditions of this Agreement shall survive any such termination with respect to Confidential\nInformation that is disclosed priorto the effective date of termination.\n5.2 Upon the eariier of (a) the termination of this Agreement, (b) Aegerion's written request or (c) such time as Recipient no longer requires the Confidential Information for the Permitted Purpose, Recipient agrees to promptly return to\nAegerion or destroy all Confidential Information and any Tangible Embodiments that are in the possession of Recipient and to certify the return or destruction of all such Confidential Information and embodiments.\n6. Warrantl. NO WARRANTY IS MADE BY EITHER PARTY UNDER THIS AGREEMENT. ANY INFORMATION EXCHANGED UNDER THIS AGREEMENT IS PROVIDED "AS IS."\n7. Miscellaneous. This Agreement does not create any agency or partnership relationship between the parties hereto. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey governing\nsuch agreements, without regard to conflicts-of-law principles. The sole and exclusive jurisdiction and venue for any litigation arising out of this Agreement shall be an appropriate federal or state court located in the State of New Jersey,\nand the parties agree not to raise, and waive, any objections or defenses based upon venue or forum non conveniens. This Agreement conmins the complete and exclusive agreement of the parties with respect to the subject matter hereof\nand supersedes all prior agreements and understandings whether written or oral, express or implied. Except where expressly indicated otherwise, the words "written" or "in writing" shall include, but not be limited to, written or printed\ndocuments, in any format now know orlater developed including electronic and facsimile transmissions and computer disks or tapes\nB-2\nCONFIDENTIALITY AGREEMENT\n(whether machine or user readable). If any provision of this Agreement is held invalid, illegal or unenforceable by a (:0th of competent jurisdiction, such shall not affect any other provision of this Agreement, which shall remain in full\nforce and effect No amendment or alteration of the terms of this Agreement shall be effective unless made in writing and executed by both panies hereto A failure or delay in exercising any right in respect to this Agreement shall not be\npresumed to operate as a waiver, and a single or panial exercise of any right shall not be presumed to preclude any subsequent or further exercise of that right or the exercise of any other right: Any modification or waiver of any provision\nof this Agreement shall not be effective unless made in writing. Any such waiver shall be effective only in the specific instance and for the purpose given\nIN WITNESS WHEREOF, the panies have caused this Confidentiality AgIeement to be executed below by their duly authorized signatories\nAEGERION PHARMACEUTICALS, INC:\nBy: By:\nName: Name:\nTitle: Title:\nDate: Date:\nAddress for notices to Recipient: Addiess for notices to Aegerion:\nB-3	EXHIBIT B\nCONFIDENTIALITY AGREEMENT\nThis CONFIDENTIALITY AGREEMENT (this greement") effective as of the date set forth last below, is made by and between the undersigned counter party ("Recipient") and Aegerion Pharmaceuticals, Inc. Aegerion"). In\nconsideration of the mutual agreements and other provisions of this Agreement, the parties hereto agree as follows:\n1. Scope of Confidential Information.\n1.1 "Confidential Information" means, subject to the exceptions set forth in Section 1.2, any information or data or materials, regardless of whether it is in tangible form, that is disclosed or otherwise made available by or on behalf of\negerion to Recipient before or during the term of this Agreement. "Confidential Information" includes but is not limited to: (a) patent and patent applications; (b) trade secrets; (c) third party information; and (d) ideas, gene sequences,\ncell lines, samples, chemical compounds, clinical data, clinical trial design assays, biological materials, techniques sketches, drawings, works of authorship, models inventions, know-how and processes pertaining to the current, future\nand proposed business, products and services of Aegerion.\n1.2 "Confidential Information" shall not include any information that: (a) appears in issued patents or printed publications in integrated form or which otherwise is or becomes generally known in the trade other than through Recipient's\nfailure to observe any or all terms and conditions hereof; provided that the foregoing shall not be interpreted to create any express or implied license, or the right to obtain a license, to any patents which may be issued to A egerion; (b) is\nmade available to Recipient by a third party who is lawfully in possession of such information, and who is not in violation of any confidentiality obligation in favor of Aegerion; or (c) Recipient can show by written record was in available\nto or in possession of Recipient (free of any confidentiality obligation in favor of Aegerion known to Recipient at the time of disclosure or availability) prior to disclosure of such information by Aegerion to Recipient, provided that\nCounter must promptly notify Aegerion of any prior knowledge in the manner provided in Section 2.4 below Notwithstanding the foregoing, (i) technica information disclosed under this greement shall not be deemed to be within\nthe\nforegoing exceptions merely because such information is embraced by more general information in the public domain or in Recipient's possession, and (ii) any combination of features shall not be deemed to be within the foregoing\nexceptions merely because individual features are in the public domain or in Recipient's possession, but only if the combination itself and its principle of operation are in the public domain or in Recipient's possession\n2. Use and Disclosure of Confidential Information.\n2.1 Recipient shall only use the Confidential Information internally solely for the purpose of evaluating a potential business relationship between Recipient and egerion (the "Permitted Purpose"). Recipient must keep secret and shall\nnever, without the prior written consent of Aegerion, directly or indirectly, disclose, publish, divulge, fumish or make accessible to anyone all or any portion of the Confidential Information, other than furnishing such Confidential\nInformation to (a) Recipient's employees and consultants who are required to have access to such Confidential Information in connection with the Permitted Purpose, and (b) Recipient's professional, licensed advisers (i.e., lawyers and\naccountants), in each case, during the time that Recipient is permitted to retain such Confidential Information hereunder provided that any and all such employees, consultants are bound by written agreements or, in the case\nof\nprofessional advisers, ethical duties, respecting the Confidential Information in the manner set forth in this A greement.\n2.2 Recipient shall use at least reasonable care and adequate measures to protect the confidentiality of the Confidential Information of Aegerion and to ensure that any Confidential Information of A Aegerion is not disclosed or otherwise\nmade available to other persons or used in violation of this Agreement. ithout limiting any of the foregoing, such measures shall be at least the equivalent of measures which Recipient uses to protect Recipient's own most valuable\nproprietary information\n2.3 In the event that Recipient is required by law to make any disclosure of any of the Confidential Information of Aegerion, by subpoena judicial or administrative order or otherwise, Recipient shall first give written notice of such\nrequirement to Aegerion, and shall permit Aegerion to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to Aegerion in seeking to obtain such\nprotection.\n2.4 Recipient agrees to notify Aegerion promptly in writing if (a) Recipient becomes aware of any breach of this Agreement with respect to the Confidential Information of Aegerion in Recipient's possession (b) subsequent to disclosure\nof any\nB-1\nCONFIDENTIALITY AGREEMENT\nConfidential Information by Aegerion, information is disclosed to Recipient in the manner described in Section 1.2; or (c) upon disclosure of Confidential Information by Aegerion, Recipient has prior knowledge of the same.\n2.5 Recipien shall not embody any of the Confidential Information of Aegerion in any of Recipient's products, processes or services, or duplicate or exploi any of such Confidential Information in Recipient's business, or otherwise use\nany of the Confidential Information for any purpose other than for the Permitted Purpose.\n3. Certain Rights and Limitations.\n3.1 All Confidential Information shall remain the property of Aegerion. The provision of Confidential Information hereunder shall not transfer any right title or interest in such information to Recipient. Aegerion does not grant Recipient\nany express or implied right to or under Aegerion's or another party's patents, copyrights, trademarks, trade secret information or other proprietary rights\n3.2 Recipient shall not remove, overprint or deface any notice of confidentiality, copyright, trademark, logo, legend or other notices of ownership or confidentiality from any originals or copies of Confidential Information it obtains from\nAegerion\n3.3 This Agreement imposes no obligations on either party to exchange any Confidential Information or to purchase, sell, license, transfer or otherwise transact in any technology, services or products.\n3.4 Confidential Information disclosed by the parties under this Agreement may be subject to export controls under the laws of the United States. Each party shall comply with such laws and agrees not to knowingly export re-export or\ntransfer Confidential Information of the other party without first obtaining all required United States authorizations or licenses.\n3.5 All tangible embodiments of the Confidential Information of Aegerion (e.g. drawings, memoranda and notes) and all copies thereof, whether in hard-copy or machine-readable form and whether supplied by egerion or made by or for\nRecipient (collectively, the "Tangible Embodiments"), shall at all times be and remain the exclusive property of Aegerion.\n3.6 Recipien shal provide upon Aegerion's request a certification that access and use is being controlled in accordance with this Agreement. Aegerion shall have the right to audit to verify compliance with this Agreement.\n4. Remedies Recipient acknowledges that a breach by it of any of the terms of this A greement would cause irreparable harm to Aegerion for which A egerion could not be adequately compensated by money damages. Accordingly,\nRecipient agrees that, in addition to all other remedies available to Aegerion in an action at law, in the event of any breach or threatened breach by Recipient of the terms of this Agreement, Aegerion shall, without the necessity of proving\nactual damages or posting any bond or other security, be entitled to temporary and permanent injunctive relief, including but not limited to, specific performance of the terms of this Agreement.\n5. Termination\n5.1 This Agreement shall remain in effect until it is terminated by either party with thirty (30) days prior written notice. The terms and conditions of this Agreement shall survive any such termination with respect to Confidential\nInformation that is disclosed prior to the effective date of termination.\n5.2 Upon the earlier of (a) the termination of this Agreement, (b) egerion's written request or (c) such time as Recipient no longer requires the Confidential Information for the Permitted Purpose, Recipient agrees to promptly retum to\nA egerion or destroy all Confidential Information and any Tangible Embodiments that are in the possession of Recipient and to certify the return or destruction of all such Confidential Information and embodiments\n6. Warranty. NO WARRANTY IS MADE BY EITHER PARTY UNDER THIS AGREEMENT. ANY INFORMATION EXCHANGED UNDER THIS AGREEMENT IS PROVIDED "AS IS."\n7. Miscellaneous This Agreement does not create any agency or partnership relationship between the parties hereto. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey goveming\nsuch agreements, without regard to conflicts-o law principles. The sole and exclusive jurisdiction and venue for any litigation arising out of this A greement shall be an appropriate federal or state court located in the State of New Jersey,\nand the parties agree not to raise, and waive, any objections or defenses based upon venue or forum non conveniens. This Agreement contains the complete and exclusive agreement of the parties with respect to the subject matter hereof\nand supersedes all prior agreements and understandings whether written or oral, express or implied. Except where expressly indicated otherwise, the words "written" or "in writing" shall include, but not be limited to, written or printed\ndocuments, in any format now know or later developed including electronic and facsimile transmissions and computer disks or tapes\nB-2\nCONFIDENTIALITY AGREEMENT\n(whether machine or user readable). If any provision of this Agreement is held invalid, illegal or unenforceable by a court of competent jurisdiction, such shall not affect any other provision of this Agreement which shall remain in full\nforce and effect. No amendment or alteration of the terms of this Agreement shall be effective unless made in writing and executed by both parties hereto. A failure or delay in exercising any right in respect to this Agreement shall not be\npresumed to operate as a waiver, and a single or partial exercise of any right shall not be presumed to preclude any subsequent or further exercise of that right or the exercise of any other right Any modification or waiver of any provision\nof this Agreement shall not be effective unless made in writing Any such waiver shall be effective only in the specific instance and for the purpose given.\nIN WITNESS WHEREOF, the parties have caused this Confidentiality Agreement to be executed below by their duly authorized signatories.\nAEGERION PHA IARMACEUTICALS, INC.\nBy\nBy:\nName:\nName:\nTitle:\nTitle:\nDate:\nDate:\nAddress for notices to Recipient:\nAddress for notices to Aegerion\nB-3	EXHIBIT B\nCONFIDENTIALITY AGREEMENT\nThis CONFIDENTIALITY AGREEMENT (this “Agreement”), effective as of the date set forth last below, is made by and between the undersigned counter party (“Recipient”) and Aegerion Pharmaceuticals, Inc. ( “Aegerion”). In\nconsideration of the mutual agreements and other provisions of this Agreement, the parties hereto agree as follows:\n1. Scope of Confidential Information.\n1.1 “Confidential Information” means, subject to the exceptions set forth in Section 1.2, any information or data or materials, regardless of whether it is in tangible form, that is disclosed or otherwise made available by or on behalf of\nAegerion to Recipient before or during the term of this Agreement. “Confidential Information” includes but is not limited to: (a) patent and patent applications; (b) trade secrets; (c) third party information; and (d) ideas, gene sequences,\ncell lines, samples, chemical compounds, clinical data, clinical trial design, assays, biological materials, techniques, sketches, drawings, works of authorship, models, inventions, know-how and processes pertaining to the current, future\nand proposed business, products and services of Aegerion.\n1.2 “Confidential Information” shall not include any information that: (a) appears in issued patents or printed publications in integrated form or which otherwise is or becomes generally known in the trade other than through Recipient’s\nfailure to observe any or all terms and conditions hereof; provided that the foregoing shall not be interpreted to create any express or implied license, or the right to obtain a license, to any patents which may be issued to Aegerion; (b) is\nmade available to Recipient by a third party who is lawfully in possession of such information, and who is not in violation of any confidentiality obligation in favor of Aegerion; or (c) Recipient can show by written record was in available\nto or in possession of Recipient (free of any confidentiality obligation in favor of Aegerion known to Recipient at the time of disclosure or availability) prior to disclosure of such information by Aegerion to Recipient, provided that\nCounter must promptly notify Aegerion of any prior knowledge in the manner provided in Section 2.4 below. Notwithstanding the foregoing, (i) technical information disclosed under this Agreement shall not be deemed to be within the\nforegoing exceptions merely because such information is embraced by more general information in the public domain or in Recipient’s possession, and (ii) any combination of features shall not be deemed to be within the foregoing\nexceptions merely because individual features are in the public domain or in Recipient’s possession, but only if the combination itself and its principle of operation are in the public domain or in Recipient’s possession.\n2. Use and Disclosure of Confidential Information.\n2.1 Recipient shall only use the Confidential Information internally solely for the purpose of evaluating a potential business relationship between Recipient and Aegerion (the “Permitted Purpose”). Recipient must keep secret and shall\nnever, without the prior written consent of Aegerion, directly or indirectly, disclose, publish, divulge, furnish or make accessible to anyone all or any portion of the Confidential Information, other than furnishing such Confidential\nInformation to (a) Recipient’s employees and consultants who are required to have access to such Confidential Information in connection with the Permitted Purpose, and (b) Recipient’s professional, licensed advisers (i.e., lawyers and\naccountants), in each case, during the time that Recipient is permitted to retain such Confidential Information hereunder; provided that any and all such employees, consultants are bound by written agreements or, in the case of\nprofessional advisers, ethical duties, respecting the Confidential Information in the manner set forth in this Agreement.\n2.2 Recipient shall use at least reasonable care and adequate measures to protect the confidentiality of the Confidential Information of Aegerion and to ensure that any Confidential Information of Aegerion is not disclosed or otherwise\nmade available to other persons or used in violation of this Agreement. Without limiting any of the foregoing, such measures shall be at least the equivalent of measures which Recipient uses to protect Recipient’s own most valuable\nproprietary information.\n2.3 In the event that Recipient is required by law to make any disclosure of any of the Confidential Information of Aegerion, by subpoena, judicial or administrative order or otherwise, Recipient shall first give written notice of such\nrequirement to Aegerion, and shall permit Aegerion to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to Aegerion in seeking to obtain such\nprotection.\n2.4 Recipient agrees to notify Aegerion promptly in writing if (a) Recipient becomes aware of any breach of this Agreement with respect to the Confidential Information of Aegerion in Recipient’s possession; (b) subsequent to disclosure\nof any\nB-1\nCONFIDENTIALITY AGREEMENT\nConfidential Information by Aegerion, information is disclosed to Recipient in the manner described in Section 1.2; or (c) upon disclosure of Confidential Information by Aegerion, Recipient has prior knowledge of the same.\n2.5 Recipient shall not embody any of the Confidential Information of Aegerion in any of Recipient’s products, processes or services, or duplicate or exploit any of such Confidential Information in Recipient’s business, or otherwise use\nany of the Confidential Information for any purpose other than for the Permitted Purpose.\n3. Certain Rights and Limitations.\n3.1 All Confidential Information shall remain the property of Aegerion. The provision of Confidential Information hereunder shall not transfer any right, title or interest in such information to Recipient. Aegerion does not grant Recipient\nany express or implied right to or under Aegerion’s or another party’s patents, copyrights, trademarks, trade secret information or other proprietary rights.\n3.2 Recipient shall not remove, overprint or deface any notice of confidentiality, copyright, trademark, logo, legend or other notices of ownership or confidentiality from any originals or copies of Confidential Information it obtains from\nAegerion.\n3.3 This Agreement imposes no obligations on either party to exchange any Confidential Information or to purchase, sell, license, transfer or otherwise transact in any technology, services or products.\n3.4 Confidential Information disclosed by the parties under this Agreement may be subject to export controls under the laws of the United States. Each party shall comply with such laws and agrees not to knowingly export, re-export or\ntransfer Confidential Information of the other party without first obtaining all required United States authorizations or licenses.\n3.5 All tangible embodiments of the Confidential Information of Aegerion (e.g., drawings, memoranda and notes) and all copies thereof, whether in hard-copy or machine-readable form and whether supplied by Aegerion or made by or for\nRecipient (collectively, the “Tangible Embodiments”), shall at all times be and remain the exclusive property of Aegerion.\n3.6 Recipient shall provide upon Aegerion’s request a certification that access and use is being controlled in accordance with this Agreement. Aegerion shall have the right to audit to verify compliance with this Agreement.\n4. Remedies. Recipient acknowledges that a breach by it of any of the terms of this Agreement would cause irreparable harm to Aegerion for which Aegerion could not be adequately compensated by money damages. Accordingly,\nRecipient agrees that, in addition to all other remedies available to Aegerion in an action at law, in the event of any breach or threatened breach by Recipient of the terms of this Agreement, Aegerion shall, without the necessity of proving\nactual damages or posting any bond or other security, be entitled to temporary and permanent injunctive relief, including, but not limited to, specific performance of the terms of this Agreement.\n5. Termination.\n5.1 This Agreement shall remain in effect until it is terminated by either party with thirty (30) days prior written notice. The terms and conditions of this Agreement shall survive any such termination with respect to Confidential\nInformation that is disclosed prior to the effective date of termination.\n5.2 Upon the earlier of (a) the termination of this Agreement, (b) Aegerion’s written request or (c) such time as Recipient no longer requires the Confidential Information for the Permitted Purpose, Recipient agrees to promptly return to\nAegerion or destroy all Confidential Information and any Tangible Embodiments that are in the possession of Recipient and to certify the return or destruction of all such Confidential Information and embodiments.\n6. Warranty. NO WARRANTY IS MADE BY EITHER PARTY UNDER THIS AGREEMENT. ANY INFORMATION EXCHANGED UNDER THIS AGREEMENT IS PROVIDED “AS IS. ”\n7. Miscellaneous. This Agreement does not create any agency or partnership relationship between the parties hereto. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey governing\nsuch agreements, without regard to conflicts-of-law principles. The sole and exclusive jurisdiction and venue for any litigation arising out of this Agreement shall be an appropriate federal or state court located in the State of New Jersey,\nand the parties agree not to raise, and waive, any objections or defenses based upon venue or forum non conveniens. This Agreement contains the complete and exclusive agreement of the parties with respect to the subject matter hereof\nand supersedes all prior agreements and understandings whether written or oral, express or implied. Except where expressly indicated otherwise, the words “written” or “in writing” shall include, but not be limited to, written or printed\ndocuments, in any format now know or later developed including electronic and facsimile transmissions and computer disks or tapes\nB-2\nCONFIDENTIALITY AGREEMENT\n(whether machine or user readable). If any provision of this Agreement is held invalid, illegal or unenforceable by a court of competent jurisdiction, such shall not affect any other provision of this Agreement, which shall remain in full\nforce and effect. No amendment or alteration of the terms of this Agreement shall be effective unless made in writing and executed by both parties hereto. A failure or delay in exercising any right in respect to this Agreement shall not be\npresumed to operate as a waiver, and a single or partial exercise of any right shall not be presumed to preclude any subsequent or further exercise of that right or the exercise of any other right. Any modification or waiver of any provision\nof this Agreement shall not be effective unless made in writing. Any such waiver shall be effective only in the specific instance and for the purpose given.\nIN WITNESS WHEREOF, the parties have caused this Confidentiality Agreement to be executed below by their duly authorized signatories.\nAEGERION PHARMACEUTICALS, INC .\nBy:\nBy:\nName:\nName:\nTitle:\nTitle:\nDate:\nDate:\nAddress for notices to Recipient:\nAddress for notices to Aegerion:\nB-3
dbee88e1251c9ca0e6667e4c099c2971.pdf	effective_date jurisdiction party term	EX-99 .(D)(2) 10 a2230805zex-99 _d2.htm EX-99.(D)(2)\nQuickLinks -- Click here to rapidly navigate through this document\nEXHIBIT (d)(2)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this "Agreement"), effective as of October 6, 2016 (the "Effective Date"), is by and between Arctic Cat Inc., a Minnesota corporation ("Arctic Cat"), and Textron Inc., a Delaware corporation with\nits headquarters located in Providence, Rhode Island ("Recipient").\nWHEREAS, in connection with Recipient's evaluation of a potential strategic transaction to be negotiated between Arctic Cat and Recipient (a "Transaction"), Recipient desires to receive certain information from Arctic Cat that is\nnon-public, confidential, or proprietary in nature; and\nWHEREAS, Arctic Cat desires to disclose to Recipient non-public, confidential, or proprietary information regarding Arctic Cat, subject to the terms and conditions of this Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, Arctic Cat and Recipient agree as follows:\n1.\nArctic Cat and Recipient agree that, as used in this Agreement, "Confidential Information" shall refer to all information that is not generally known to the public, or that is confidential or proprietary, and is disclosed before, on or\nafter the Effective Date by Arctic Cat to Recipient or its affiliates, or to any employees, officers, directors, partners, shareholders, agents, attorneys, accountants or advisors (collectively, "Representatives") of Recipient or its\naffiliates, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," including, without limitation:\na)\nall information concerning Arctic Cat's and its affiliates', and their dealers', customers', suppliers', commercial partners' and other third parties', past, present and future business affairs including, without limitation, information\nregarding products and product plans and designs, services, supplier information, subcontractor information, consultant information, organizational structure and internal practices, forecasts, sales and other financial information and\nresults, records and budgets, banking and investment information, capital investments, current and potential strategic initiatives, partnerships and relationships, pricing or purchasing information, and business, marketing,\ndevelopment, financial, sales and other commercial strategies, plans or proposals, initiatives, techniques, programs, and methods of operation;\nb)\ninformation relating to proprietary rights and data, ideas, know-how, trade secrets, inventions, licenses, techniques, improvements, design, design concepts and documentation, drawings, schematics, algorithms, source code, object\ncode, research, development, technology, processes, program documentation, product development, electronic data, software owned, licensed or developed by Arctic Cat or its affiliates, formulae, technical information, licenses,\npending patentable materials and/or designs, tests and/or test standards or manuals;\nc)\ninformation relating to employees and employee compensation and benefits;\nd)\nany third-party confidential information included with, or incorporated in, any information provided by Arctic Cat to Recipient or its Representatives;\ne)\nany other information that would reasonably be considered non-public, confidential or proprietary given the nature of the information and the businesses of Arctic Cat and Recipient; and\nf)\nall notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations and other materials (collectively, "Notes") prepared by or for\n1\nRecipient or its Representatives that contain, are based on, or otherwise reflect or are derived from, in whole or in part, any of the foregoing.\n2.\nExcept as required by applicable federal, state or local law or regulation, the term "Confidential Information" as used in this Agreement shall not include information that:\na)\nat the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any act or omission by Recipient or any of its Representatives;\nb)\nat the time of disclosure is, or thereafter becomes, available to Recipient on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information\nto Recipient by any legal, fiduciary or contractual obligation;\nc)\nwas known by or in the possession of Recipient, as established by documentary evidence, prior to being disclosed by or on behalf of Arctic Cat pursuant to this Agreement; or\nd)\nwas or is independently developed by Recipient, as established by documentary evidence, without reference to or use of, in whole or in part, any of Arctic Cat's Confidential Information.\n3.\nRecipient agrees that the Confidential Information shall be used only to evaluate a Transaction and shall not be used for any other purpose or disclosed to any third party except as provided herein. Recipient agrees not to take any\naction that would, directly or indirectly, cause a law, regulation or court order to require disclosure of any Confidential Information. Notwithstanding the foregoing, in the event that Recipient is required by law or regulation, or a\nvalid order issued by a court or governmental agency of competent jurisdiction, to disclose any Confidential Information, Recipient will: (i) provide Arctic Cat with prompt notice of such requirement prior to the disclosure; (ii) refrain\nfrom taking an action if Recipient, by so refraining, would not be required to disclose such Confidential Information; (iii) give Arctic Cat all available information, reasonable assistance and necessary authority to enable Arctic Cat to\ntake the measures that Arctic Cat, in its sole discretion, may deem appropriate or necessary to protect the Confidential Information from disclosure; and (iv) if, after providing such notice to Arctic Cat such that Arctic Cat has had an\nopportunity to seek protection or another remedy, Recipient remains subject to the requirement to disclose the Confidential Information, limit what is disclosed to the maximum extent possible under law or regulation and use\ncommercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.\n4.\nRecipient agrees that it will comply, and will require its Representatives to comply, with all applicable federal, state and local data protection laws and regulations in the maintenance, disclosure and use of all Personal Information\ncontained in any Confidential Information that is disclosed to the Recipient or its Representatives hereunder. For purposes of this Agreement, "Personal Information" means information that relates to an individual person and\nidentifies or can be used to identify, locate or contact that individual alone or when combined with other personal or identifying information that is or can be associated with that specific individual.\n5.\nRecipient acknowledges that it conducts business in similar and adjacent business spaces as Arctic Cat, and for that reason agrees to hold all Confidential Information in absolute trust and confidence, and to protect and safeguard\nagainst the unnecessary dissemination of Confidential Information both inside and outside the Recipient's businesses. Recipient will not disclose or render accessible Confidential Information to Recipient's affiliates unless and until\nconsented to in writing by Arctic Cat. Recipient shall further take all steps necessary and\n2\nsufficient to ensure that Confidential Information is not rendered accessible to individual Representatives that are not directly involved in evaluating the Transaction. Recipient will further ensure that all individuals who are given\naccess to Confidential Information will be specifically identified to Arctic Cat in writing in advance of being provided access to Confidential Information. Upon written notification, Arctic Cat shall have two business days to\nobject to any individual Recipient being provided access to Confidential Information, unless earlier waived in writing by Arctic Cat. In advance of being provided access to Confidential Information, each individual Recipient\nwill (i) be provided a copy of this Agreement and (ii) execute an acknowledgement in the form provided in Addendum A stating they agree to be bound by and will conduct their investigation in accordance with this Agreement\nand agree to comply with all applicable on-site access, remote access and related security rules and procedures of Arctic Cat. Recipient will be responsible for any breach of this Agreement by all those who gain access to\nConfidential Information via Recipient or its Representatives.\n6.\nExcept as required by applicable federal, state or local law or regulation, or as otherwise consented to in writing by Arctic Cat, the Recipient shall not, and shall not permit its Representatives to disclose to any person that: (i) the\nConfidential Information has been made available to Recipient or its Representatives; (ii) that discussions or negotiations may be, or are, underway between the Recipient and Arctic Cat regarding the Confidential Information or a\nTransaction, including the status thereof; or (iii) any terms, conditions or other arrangements that are being discussed or negotiated in relation to the Confidential Information or a Transaction.\n7.\nRecipient acknowledges that none of Arctic Cat or its Representatives makes any express or implied representation or warranty as to the completeness and accuracy of any Confidential Information, and Recipient agrees that no such\npersons shall have any liability to Recipient or any of Recipient's Representatives relating to or arising from Recipient's or such Representatives' use of any Confidential Information or for any errors therein or omissions therefrom.\nRecipient also agrees that Recipient is not entitled to rely on the completeness or accuracy of any Confidential Information and that Recipient shall be entitled to rely solely on such representations and warranties as may be made by\nArctic Cat to Recipient in any definitive agreement relating to a Transaction, subject to the terms and conditions of such agreement. For purposes of this Agreement, a "definitive agreement" does not include an executed letter of\nintent or any other preliminary written agreement, nor does it include any written or oral acceptance of an offer or bid.\n8.\nArctic Cat hereby retains its entire right, title and interest, including all intellectual property rights, in and to all Confidential Information. Any disclosure of such Confidential Information hereunder shall not be construed as an\nassignment, grant, option, license or other transfer of any such right, title or interest.\n9.\nUpon expiration or termination of this Agreement, and upon written demand by Arctic Cat at any time, all Confidential Information, including copies, Notes, photographs, and memoranda, produced or taken by Recipient in\nconnection with evaluating a Transaction, whether in hard copy or electronic format, shall be destroyed or returned to Arctic Cat, unless otherwise authorized in writing by Arctic Cat; provided, however, that one copy may be\nretained for legal files for compliance and regulatory purposes and electronic archives and backups made in the ordinary course of business need not be purged, so long as they are maintained in accordance with the confidentiality\nprovisions of this Agreement. Upon written request, destruction of materials containing Confidential Information shall be certified by an officer of Recipient.\n3\n10.\nNo failure or delay by Arctic Cat in exercising any right, power or privilege hereunder shall operate as a waiver hereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of\nany right, power or privilege hereunder. Recipient agrees that money damages would not be a sufficient remedy for any breach of this Agreement by Recipient or its Representatives, and that in addition to all other remedies Arctic\nCat shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach. Recipient further agrees to waive, and to use its reasonable best efforts to cause its Representatives to waive,\nany requirement for the securing or posting of any bond in connection with such remedy.\n11.\nRecipient agrees to promptly notify Arctic Cat of any unauthorized disclosure of Confidential Information or other breaches of this Agreement by Recipient or its Representatives of which Recipient or its Representatives have\nknowledge and to fully cooperate with Arctic Cat in any effort undertaken by Arctic Cat to enforce its rights related to such unauthorized disclosure.\n12.\nNo party to this Agreement shall be under any obligation to enter into any further agreements with the other party or its Representatives as a result of this Agreement. Arctic Cat and its Representatives shall be free at all times to\nconduct their business, operations and affairs in their sole discretion and to enter into any agreements with any other party, including with the respect to a Transaction. Any such activities by Arctic Cat or its Representatives shall not\nbe a breach of this Agreement.\n13.\nWithout the written consent of Arctic Cat, Recipient and its Representatives shall not, during the term of this Agreement and for a period of eighteen months from expiration or termination of this Agreement, solicit for employment\nany persons who are employees of Arctic Cat or any of its affiliates as of the date of this Agreement or at the time this Agreement expires or is terminated. Nothing contained herein shall preclude the hiring of any such employee\nwho: (i) Recipient was in discussions with regarding possible employment prior to the signing of this Agreement; (ii) responds to a general solicitation of employment through an advertisement not targeted specifically at Arctic Cat or\nits employees; or (iii) is referred to Recipient by search firms, employment agencies, or other similar entities, provided that such entities have not been specifically instructed by Recipient to solicit the employees of Arctic Cat.\n14.\nIn consideration of the Confidential Information being furnished to Recipient, Recipient hereby agrees that, during the term of this Agreement and for a period of eighteen months following the expiration or termination of this\nAgreement (the "Standstill Period") , neither Recipient nor Recipient's directors, officers, employees or subsidiaries, nor any "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the\n"Exchange Act")) of which Recipient or any of its directors, officers, employees or subsidiaries is a party, will assist or encourage others (including by providing financing) to, directly or indirectly, without the prior written consent\nor request of the Board of Directors of Arctic Cat or an authorized Special Committee of such Board, (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets\nof Arctic Cat or any of its subsidiaries, any warrant or option to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities or assets (other than purchases of\nproducts in the ordinary course of business), (ii) enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, material asset purchase, business combination, recapitalization, restructuring or other extraordinary\ntransaction involving Arctic Cat or engage in or participate in any way in any transaction regarding control of Arctic Cat, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote or seek to advise or\ninfluence any person with respect to the voting of, any voting securities of Arctic Cat, in opposition to the slate of directors nominated\n4\nby Arctic Cat or any other item of business recommended by Arctic Cat's Board of Directors to be voted on at any meeting of Arctic Cat's shareholders, (iv) form, join or in any way participate in a "group" (within the meaning\nof Section 13(d)(3) of the Exchange Act) with respect to any voting securities of Arctic Cat, (v) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders of Arctic Cat,\n(vi) nominate a competing slate of directors at any meeting of the Company's shareholders, (vii) otherwise act, alone or in concert with others, to seek to control or influence the management or policies of Arctic Cat,\n(viii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing, or (ix) advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other\npersons in connection with the foregoing.\nRecipient further agrees that during the Standstill Period, neither it nor any of its Representatives will, directly or indirectly, without the prior written consent of the Board of Directors of Arctic Cat or an authorized Special\nCommittee of such Board, (x) make any request directly or indirectly, to amend or waive any provision of this Section 14 (including this sentence), or (y) take any action not requested by Arctic Cat that might require Arctic Cat\nto make a public announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph. Notwithstanding the foregoing, the preceding restrictions of this section shall\nterminate in the event that another person or "group" (within the meaning of Section 13(d)(3) of the Exchange Act) (a) shall have entered into a definitive agreement with Arctic Cat to acquire a controlling interest in Arctic Cat\nor all or substantially all of its assets or (b) has launched or publicly stated its intention to launch a tender or exchange offer for a majority of Arctic Cat's capital stock and Arctic Cat files a Schedule 14D-9 with respect to such\noffer that recommends acceptance of such tender or exchange offer.\n15.\nRecipient hereby acknowledges that it is aware, and that it will advise its Representatives who receive any Confidential Information, that the United States securities laws prohibit any person who has received from an issuer material,\nnonpublic information from purchasing or selling securities of such issuer (and options, warrants and rights relating thereto) or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities.\n16.\nRecipient agrees to defend, indemnify and hold harmless Arctic Cat, its affiliates and their respective Representatives, successors and permitted assigns from and against all losses, damages, liabilities, deficiencies, actions, judgments,\ninterest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees, in connection with any third party claim, suit, action or proceeding arising out of or resulting from a material breach of this\nAgreement by Recipient or any of its Representatives.\n17.\nThis Agreement shall be governed by the laws of the State of Minnesota. Arctic Cat reserves the right to assign all of its rights under this Agreement to any of its affiliates or to a successor in interest to the business of Arctic Cat,\nincluding the right to enforce this Agreement. Recipient hereby consents to any such assignment. Recipient shall not assign any of its rights or delegate any of its obligations hereunder without Arctic Cat's prior written consent. Any\npurported assignment or delegation by Recipient shall be null and void.\n18.\nThe term of this Agreement shall commence on the Effective Date and shall expire one year from the Effective Date, provided that either Party may terminate this Agreement at any time by providing written notice to the other Party.\nIn addition, Recipient agrees to promptly inform Arctic Cat if Recipient determines not to proceed with a Transaction. Notwithstanding anything to the contrary herein, each Party's rights and obligations under this Agreement shall\n5\nsurvive the expiration or termination of this Agreement for a period of three years from the date of such expiration or termination, even after the return or destruction of Confidential Information by Recipient (the "Survival\nPeriod"), provided the provisions of Sections 13 and 14 of this Agreement shall expire as provided in such Sections, and provided further that, with respect to the trade secrets of Arctic Cat, the Survival Period shall last for as\nlong as such Confidential Information qualifies as a trade secret under applicable federal, state or local law, and with respect to Personal Information disclosed by Arctic Cat, the Survival Period shall last for the period of time\nrequired under applicable federal state and/or local law.\n19.\nAll notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered and received by hand; (ii) when received by the addressee\nif sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or electronic transmission if sent during normal business hours of the recipient of the communication; or (d) on the third\ncalendar day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the signature page hereto (or such\nother addresses as designated from time to time in accordance with this section).\n20.\nThis Agreement contains the entire agreement between Arctic Cat and Recipient concerning the subject matter hereof, and no provision of this Agreement may be waived, amended or modified, in whole or in part, nor any consent\ngiven, unless approved in writing by a duly authorized Representative of each of Arctic Cat and Recipient, which writing specifically refers to this Agreement and the provision so amended or modified or for which such waiver or\nconsent is given. In the event that any provision of this Agreement is deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or\nimpaired thereby.\n21.\nIf any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render\nunenforceable such term or provision in any other jurisdiction.\n22.\nThis Agreement may be executed in one or more counterparts (including by means of facsimile or electronically transmitted portable document format (PDF) signature pages), each of which shall be deemed to be an original, but all\nof which together shall constitute and be one and the same instrument.\nUpon execution hereof by both Arctic Cat and Recipient, this Agreement shall become a binding agreement between Arctic Cat and Recipient.\n[Signature Page Follows]\n6\nIN WITNESS WHEREOF, the parties have executed this Agreement to be effective as of the Effective Date.\nARCTIC CAT INC.\nTEXTRON INC.\nBy:\n/s/ CHRISTOPHER T. METZ\nBy:\n/s/ SCOTT HEGSTROM\nName: Christopher T. Metz\nName: Scott Hegstrom\nTitle: President and Chief Executive Officer\nTitle: Vice President, Mergers & Acquisitions\nAddress: 500 North 3d Street,\nMinneapolis, MN 55401\nAddress: 40 Westminster Street,\nProvidence, RI 02903\nTelephone: 612-305 -1802\nTelephone: 401-457 -2386\nFax:\nFax:\n401-457 -3611\n[Signature Page to Confidentiality Agreement]\nQuickLinks\nEXHIBIT (d)(2)\nCONFIDENTIALITY AGREEMENT	EX-99.(D)(2) 10 a22308052ex-99_d2.htm EX-99.(D)(2)\nQuickLinks -- Click here to rapidly navigate through this document\nEXHIBIT (d)(2)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this "Agreement"), effective as of October 6, 2016 (the "Effective Date"), is by and between Arctic Cat Inc., a Minnesota corporation (" Arctic Cat"), and Textion Inc, a Delaware corporation with\nits headquarters located in Providence, Rhode Island (" Recipient").\nWHEREA S, in connection with Recipient's evaluation of a potential strategic transaction to be negotiated between Arctic Cat and Recipient (a "Transaction"), Recipient desires to receive certain information from Arctic Cat that is\nnon-public, confidential, or propriemry in nature,- and\nWHEREA S, Arctic Cat desires to disclose to Recipient non-public, confidential, or proprietary information regarding Arctic Cat, subject to the terms and conditions of this Agreement\nNOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, Arctic Cat and Recipient agree as follows:\n1.\nArctic Cat and Recipient agree that, as used in this Agreement, "Confidential Information" shall referto all information that is not generally known to the public, or that is confidential or proprietary, and is disclosed before, on or\nafter the Effective Date by Arctic Cat to Recipient or its affiliates, or to any employees, officers, directors, partners, shareholders, agents, attorneys, accountants or advisors (collectively, "Representatives") of Recipient orits\naffiliates, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," including, without limimtion:\na)\nall information concerning Arctic Cat‘s and its affiliates‘, and their dealers', customers', suppliers', commercial partners‘ and other third parties', past, present and future business affairs including, without limitation, information\nregarding products and product plans and designs, services, supplier information, subcontractor information, consultant information, organizational structure and internal practices, forecasts, sales and other financial information and\nresults, records and budgets, banking and investment information, capiml investments, current and potential strategic initiatives, partnerships and relationships, pricing or purchasing information, and business, marketing,\ndevelopment, financial, sales and other commercial strategies, plans or proposals, initiatives, techniques, programs, and methods of operation;\nh)\ninformation relating to proprietary rights and dam, ideas, know-how, trade secrets, inventions, licenses, techniques, improvements, design, design concepts and documentation, drawings, schematics, algorithms, source code, object\ncode, research, development, technology, processes, program documenmtion, product development, electronic data, software owned, licensed or developed by Arctic Cat or its affiliates, formulae, technical information, licenses,\npending patenmble materials and/or designs, tests and/or test standards or manuals;\nC)\ninformation relating to employees and employee compensation and benefits;\nd)\nany third-party confidential information included with, or incorporated in, any information provided by Arctic Cat to Recipient or its Representatives;\ne)\nany other information that would reasonably be considered non-public, confidential or proprietary given the nature of the information and the businesses of Arctic Cat and Recipient; and\nf)\nall notes, analyses, compilations, repom, forecasts, studies, samples, data, smtistics, summaries, interpretations and other materials (collectively, "Notes") prepared by or for\nRecipient orits Representatives that contain, are based on, or otherwise reflect or are derived from, in whole or in part, any of the foregoing.\n2.\nExcept as required by applicable federal, state or local law or regulation, the term "Confidential Information" as used in this Agreement shall not include information that:\na)\nat the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any act or omission by Recipient or any of its Representatives;\nh)\nat the time of disclosure is, or thereafter becomes, available to Recipient on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information\nto Recipient by any legal, fiduciary or contractual obligation;\nC)\nwas known by or in the possession of Recipient, as esmblished by documentary evidence, prior to being disclosed by or on behalf of Arctic Cat pursuant to this Agreement; or\nd)\nwas or is independently developed by Recipient, as established by documentary evidence, without reference to or use of, in whole or in part, any of Arctic Cat‘s Confidential Information.\n3.\nRecipient agrees that the Confidential Information shall be used only to evaluate a Transaction and shall not be used for any other purpose or disclosed to any third party except as provided herein. Recipient agrees not to mke any\naction that would, directly or indirectly, cause a law, regulation or court order to require disclosure of any Confidential Information Notwithsmnding the foregoing, in the event that Recipient is required by law or regulation, or a\nvalid order issued by a court or governmental agency of competent jurisdiction, to disclose any Confidential Information, Recipient will: (i) provide Arctic Cat with prompt notice of such requirement prior to the disclosure,- (ii) refrain\nfrom taking an action if Recipient, by so refraining, would not be required to disclose such Confidential Information; (iii) give Arctic Cat all available information, reasonable assismnce and necessary authority to enable Arctic Cat to\ntake the measures thatArctic Cat, in its sole discretion, may deem appropriate or necessary to protect the Confidential Information from disclosure; and (iv) if, after providing such notice to Arctic Cat such that Arctic Cat has had an\nopportunity to seek protection or another remedy, Recipient remains subject to the requirement to disclose the Confidential Information, limit what is disclosed to the maximum extent possible under law or regulation and use\ncommercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.\n4.\nRecipient agrees that it will comply, and will require its Represenmtives to comply, with all applicable federal, smte and local dam protection laws and regulations in the maintenance, disclosure and use of all Personal Information\ncontained in any Confidential Information that is disclosed to the Recipient or its Represenmtives hereunder. For purposes of this Agreement, "Personal Information" means information that relates to an individual person and\nidentifies or can be used to identify, locate or contact that individual alone or when combined with other personal or identifying information that is or can be associated with that specific individual.\n5.\nRecipient acknowledges that it conducts business in similar and adjacent business spaces as Arctic Cat, and for that reason agrees to hold all Confidential Information in absolute trust and confidence, and to protect and safeguard\nagainst the unnecessary dissemination of Confidential Information both inside and outside the Recipient's businesses. Recipient will not disclose or render accessible Confidential Information to Recipient's affiliates unless and until\nconsented to in writing by Arctic Cat. Recipient shall further take all steps necessary and\nsufficient to ensure that Confidential Information is not rendered accessible to individual Representatives that are not directly involved in evaluating the Transaction. Recipient will further ensure that all individuals who are given\naccess to Confidential Information will be specifically identified to Arctic Cat in writing in advance of being provided access to Confidential Information. Upon written notification, Arctic Cat shall have two business days to\nobject to any individual Recipient being provided access to Confidential Information, unless earlier waived in writing by Arctic Cat. In advance of being provided access to Confidential Information, each individual Recipient\nwill (i) be provided a copy of this Agreement and (ii) execute an acknowledgement in the form provided in Addendum A stating they agree to be bound by and will conduct their investigation in accordance with this Agreement\nand agree to comply with all applicable on-site access, remote access and related security rules and procedures of Arctic Cat. Recipient will be responsible for any breach of this Agreement by all those who gain access to\nConfidential Information via Recipient or its Representatives.\n6.\nExcept as required by applicable federal, state or local law or regulation, or as otherwise consented to in writing by Arctic Cat, the Recipient shall not, and shall not permit its Representatives to disclose to any person that: (i) the\nConfidential Information has been made available to Recipient or its Representatives; (ii) that discussions or negotiations may be, or are, underway between the Recipient and Arctic Cat regarding the Confidential Information or a\nTransaction, including the status thereof; or (iii) any terms, conditions or other arrangements that are being discussed or negotiated in relation to the Confidential Information or a Transaction\n7.\nRecipient acknowledges that none of Arctic Cat or its Representatives makes any express or implied representation or warranty as to the completeness and accuracy of any Confidential Information, and Recipient agrees that no such\npersons shall have any liability to Recipient or any of Recipient's Representatives relating to or arising from Recipient‘s or such Represenmtives' use of any Confidential Information or for any errors therein or omissions therefrom.\nRecipient also agrees that Recipient is not entitled to rely on the completeness or accuracy of any Confidential Information and that Recipient shall be entitled to rely solely on such representations and warranties as may be made by\nArctic Cat to Recipient in any definitive agreement relating to a Transaction, subject to the terms and conditions of such agreement. For purposes of this Agreement, a "definitive agreement" does not include an executed letter of\nintent or any other preliminary written agreement, nor does it include any written or oral acceptance of an offer or bid.\n8.\nArctic Cat hereby retains its entire right, title and interest, including all intellectual property rights, in and to all Confidential Information. Any disclosure of such Confidential Information hereunder shall not be construed as an\nassignment, grant, option, license or other transfer of any such right, title or interest.\n9.\nUpon expiration or termination of this Agreement, and upon written demand by Arctic Cat at any time, all Confidential Information, including copies, Notes, photographs, and memoranda, produced or taken by Recipient in\nconnection with evaluating a Transaction, whether in hard copy or electronic format, shall be destroyed or returned to Arctic Cat, unless otherwise authorized in writing by Arctic Cat; provided, however, that one copy may be\nremined for legal files for compliance and regulatory purposes and electronic archives and backups made in the ordinary course of business need not be purged, so long as they are maintained in accordance with the confidentiality\nprovisions of this Agreement. Upon written request, destruction of materials conmining Confidential Information shall be certified by an officer of Recipient.\n \n10\nNo failure or delay by Arctic Cat in exercising any right, power or privilege hereunder shall operate as a waiver hereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of\nany right, power or privilege hereunderi Recipient agrees that money damages would not be a sufficient remedy for any breach of this Agreement by Recipient orits Representatives, and that in addition to all other remedies Arctic\nCat shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach. Recipient further agrees to waive, and to use its reasonable best efforts to cause its Representatives to waive,\nany requirement for the securing or posting of any bond in connection with such remedy.\n1r\n{ecipient agrees to promptly notify Arctic Cat of any unauthorized disclosure of Confidential Information or other breaches of this Agreement by Recipient or its Representatives of which Recipient or its Represenmtives have\nmowledge and to fully cooperate with Arctic Cat in any effort undertaken by Arctic Cat to enforce its rights related to such unauthorized disclosure.\n2\nNo party to this Agreement shall be under any obligation to enter into any further agreements with the other party orits Representatives as a result of this Agreement. Arctic Cat and its Representatives shall be free at all times to\nconduct their business, operations and affairs in their sole discretion and to enter into any agreements with any other party, including with the respect to a Transaction. Any such activities by Arctic Cat or its Representatives shall not\ne a breach of this Agreement.\n \n3\nWithout the written consent of Arctic Cat, Recipient and its Representatives shall not, during the term of this Agreement and for a period of eighteen months from expiration or termination of this Agreement, solicit for employment\nany persons who are employees of Arctic Cat or any of its affiliates as of the date of this Agreement or at the time this Agreement expires or is terminated Nothing contained herein shall preclude the hiring of any such employee\nwho: (i) Recipient was in discussions with regarding possible employment priorto the signing of this Agreement; (ii) responds to a general solicitation of employment through an advertisement not mrgeted specifically at Arctic Cat or\nits employees,- or (iii) is referred to Recipient by search firms, employment agencies, or other similar entities, provided that such entities have not been specifically instructed by Recipient to solicit the employees of Arctic Cat.\n14\nIn consideration of the Confidential Information being furnished to Recipient, Recipient hereby agrees that, during the term of this Agreement and for a period of eighteen months following the expiration or termination of this\nAgreement (the "standstill Period"), neither Recipient nor Recipient‘s directors, officers, employees or subsidiaries, nor any "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the\n"Exchange Act")) of which Recipient or any of its directors, officers, employees or subsidiaries is a party, will assist or encourage others (including by providing financing) to, directly orindirectly, without the prior written consent\nor request of the Board of Directors of Arctic Cat or an authorized Special Committee of such Board, (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets\nof Arctic Cat or any of its subsidiaries, any warrant or option to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities or assets (other than purchases of\nproducts in the ordinary course of business), (ii) enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, material asset purchase, business combination, recapitalization, restructuring or other extraordinary\ntransaction involving Arctic Cat or engage in or participate in any way in any transaction regarding control of Arctic Cat, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote or seek to advise or\ninfluence any person with respect to the voting of, any voting securities of Arctic Cat, in opposition to the slate of directors nominated\nby Arctic Cat or any other item of business recommended by Arctic Cat's Board of Directors to be voted on at any meeting of Arctic Cat's shareholders, (iv) form, join or in any way participate in a "group" (within the meaning\nof Section 13(d)(3) of the Exchange Act) with respect to any voting securities of Arctic Cat, (v) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders of Arctic Cat,\n(vi) nominate a competing slate of directors at any meeting of the Company‘s shareholders, (vii) otherwise act, alone or in concert with others, to seek to control or influence the management or policies of Arctic Cat,\n(viii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing, or (ix) advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other\npersons in connection with the foregoing.\nRecipient further agrees that during the standstill Period, neither it nor any of its Representatives will, directly or indirectly, without the prior written consent of the Board of Directors of Arctic Cat or an authorized Special\nCommittee of such Board, (x) make any request directly or indirectly, to amend or waive any provision of this Section 14 (including this sentence), or (y) take any action not requested by Arctic Cat that might require Arctic Cat\nto make a public announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph Notwithsmnding the foregoing, the preceding restiictions of this section shall\ntemiinate in the event that another person or "group" (within the meaning of Section 13(d)(3) of the Exchange Act) (a) shall have entered into a definitive agreement with Arctic Cat to acquire a contiolling interest in Arctic Cat\nor all or substantially all of its assets or (b) has launched or publicly stated its intention to launch a tender or exchange offer for a majority of Arctic Cat‘s capiml stock and Arctic Cat files a Schedule 14D-9 with respect to such\noffer that recommends accepmnce of such tender or exchange offer.\n15\nRecipient hereby acknowledges that it is aware, and that it will advise its Representatives who receive any Confidential Information, that the United States securities laws prohibit any person who has received from an issuer material,\nnonpublic information from purchasing or selling securities of such issuer (and options, warrants and rights relating thereto) or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities.\n16i\nRecipient agrees to defend, indemnify and hold harmless Arctic Cat, its affiliates and their respective Representatives, successors and permitted assigns from and against all losses, damages, liabilities, deficiencies, actions, judgments,\ninterest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys‘ fees, in connection with any third party claim, suit, action or proceeding arising out of or resulting from a material breach of this\nAgreement by Recipient or any of its Representatives.\n17i\nThis Agreement shall be governed by the laws of the Smte of Minnesota. Arctic Cat reserves the right to assign all of its rights under this Agreement to any of its affiliates orto a successor in interest to the business of Arctic Cat,\nincluding the right to enforce this Agreement. Recipient hereby consents to any such assignment. Recipient shall not assign any of its rights or delegate any of its obligations hereunder withoutArctic Cat's prior written consent. Any\npurported assignment or delegation by Recipient shall be null and void.\n18\nThe term of this Agreement shall commence on the Effective Date and shall expire one year from the Effective Date, provided that either Party may terminate this Agreement at any time by providing written notice to the other Party.\nIn addition, Recipient agrees to promptly inform Arctic Cat if Recipient determines not to proceed with a Transaction. Notwithstanding anything to the contiary herein, each Party's rights and obligations under this Agreement shall\nsurvive the expiration or termination of this Agreement for a period of three years from the date of such expiration or termination, even after the return or destruction of Confidential Information by Recipient (the "Survival\nPeriod"), provided the provisions of Sections 13 and 14 of this Agreement shall expire as provided in such Sections, and provided further that, with respect to the trade secrets of Arctic Cat, the Survival Period shall last for as\nlong as such Confidential Information qualifies as a trade secret under applicable federal, smte or local law, and with respect to Personal Information disclosed by Arctic Cat, the Survival Period shall last for the period of time\nrequired under applicable federal smte and/or local law.\n19.\nAll notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (1) when delivered and received by hand,- (ii) when received by the addressee\nif sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or electronic transmission if sent during normal business hours of the recipient of the communication; or (d) on the third\ncalendar day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the signature page hereto (or such\nother addresses as designated from time to time in accordance with this section).\n20.\nThis Agreement contains the entire agreement between Arctic Cat and Recipient concerning the subject matter hereof, and no provision of this Agreement may be waived, amended or modified, in whole or in part, nor any consent\ngiven, unless approved in writing by a duly authorized Representative of each of Arctic Cat and Recipient, which writing specifically refers to this Agreement and the provision so amended or modified or for which such waiver or\nconsent is given. In the event that any provision of this Agreement is deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or\nimpaired thereby\n21.\nIf any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render\nunenforceable such term or provision in any other jurisdiction.\n22.\nThis Agreement may be executed in one or more counterparts (including by means of facsimile or electronically transmitted portable document format (PDF) signature pages), each of which shall be deemed to be an original, but all\nof which together shall constitute and be one and the same instrument.\nUpon execution hereof by both Arctic Cat and Recipient, this Agreement shall become a binding agreement between Arctic Cat and Recipient.\n[Signature Page Follows]\nIN WITNESS WHEREOF, the parties have executed this Agreement to be effective as of the Effective Date.\nARCTIC CAT INC.\n/5/ CHRISTOPHER T. METZ\nBy: By:\nName: ChristopherT. Meu\nTitle: President and Chief Executive Officer\nAddress: 500 North 3d Street,\nMinneapolis, MN 55401\nTelephone: 612-305-1802\nFax: Fax:\n[Signature Page to C onfidentiality Agreement] TEXTRON INC\n/5/ SCOTT HEGSTROM\nName: Scott Hegstmm\nTitle: Vice President, Mergers & Acquisitions\nAddress: 40 Westminster Street,\nProvidence, RI 02903\nTelephone: 401-457-2386\n401-457-3611\nQuickLinks\nEXHIBIT (d)(2)\nCONFIDENTIALITY AGREEMENT	EX-99.(D)(2) 10 a2230805zex-99_d2.htr EX-99.(D)(2)\nQuickLinks Click here to rapidly navigate through this document\nEXHIBIT (d)(2)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this "Agreement") effective as of October 6, 2016 (the "Effective Date"), is by and between Arctic Cat Inc. a Minnesota corporation ("Arctic Cat"), and Textron Inc. a Delaware corporation with\nits headquarters located in Providence, Rhode Island C 'Recipient").\nWHEREAS, in connection with Recipient's evaluation of a potential strategic transaction to be negotiated between Arctic Cat and Recipient (a "Transaction"), Recipient desires to receive certain information from\nArctic\nCat\ntha\nis\nnon-public, confidential, or proprietary in nature; and\nWHEREAS, rctic Cat desires to disclose to Recipient non-public, confidential, or proprietary information regarding Arctic Cat, subject to the terms and conditions of this Agreement\nNOW THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein Arctic Cat and Recipient agree as follows:\n1.\nArctic Cat and Recipient agree that, as used in this Agreement, "'Confidential Information" shall refer to all information that is not generally known to the public, or that is confidential or proprietary, and is disclosed before, on or\nafter\nthe Effective Date by Arctic Cat to Recipient or its affiliates, or to any employees, officers, directors partners shareholders, agents, attomeys, accountants or advisors (collectively, "Representatives" of Recipient or its\naffiliates, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," including, without limitation:\na)\nall information concerning Arctic Cat's and its affiliates', and their dealers', customers, suppliers', commercial partners and other third parties', past, present and future business affairs including, without limitation, information\nregarding products and product plans and designs, services, supplier information, subcontractor information, consultant information, organizational structure and internal practices, forecasts sales and other financial information and\nresults, records and budgets, banking and investment information, capital investments, current and potential strategic initiatives, partnerships and relationships, pricing or purchasing information, and business marketing,\ndevelopment, financial, sales and other commercial strategies, plans or proposals, initiatives, techniques, programs, and methods of operation\nb)\ninformation relating to proprietary rights and data, ideas, know-how, trade secrets, inventions licenses, techniques, improvements, design design concepts and documentation, drawings, schematics algorithms source code, object\ncode research, development, technology, processes program documentation product development, electronic data, software owned licensed or developed by Arctic Cat or its affiliates, formulae technical information licenses,\npending patentable materials and/or designs, tests and/or test standards or manuals;\nc)\ninformation relating to employees and employee compensation and benefits;\nd)\nany third-party confidential information included with, or incorporated in, any information provided by Arctic Cat to Recipient or its Representatives;\ne)\nany other information that would reasonably be considered non-public, confidential or proprietary given the nature of the information and the businesses of Arctic Cat and Recipient; and\nf)\nall notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations and other materials (collectively, "Notes") prepared by or for\n1\nRecipient or its Representatives that contain are based on, or otherwise reflect or are derived from, in whole or in part, any of the foregoing.\n2.\nExcept as required by applicable federal, state or local law or regulation, the term "Confidential Information" as used in this Agreement shall not include information that:\na)\nat the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any act or omission by Recipient or any of its Representatives;\nb)\nat the time of disclosure is, or thereafter becomes available to Recipient on a non -confidential basis from a ird-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information\nto Recipient by any legal, fiduciary or contractual obligation;\nc)\nwas known by or in the possession of Recipient, as established by documentary evidence, prior to being disclosed by or on behal of Arctic Cat pursuant to this A greement; or\nd)\nwas or is independently developed by Recipient, as established by documentary evidence, without reference to or use of, in whole or in part, any of Arctic Cat's Confidential Information.\n3.\nRecipient agrees that the Confidential Information shall be used only to evaluate a Transaction and shall no be used for any other purpose or disclosed to any third party except as provided herein. Recipient agrees not to take any\naction that would, directly or indirectly, cause a law, regulation or court order to require disclosure of any Confidential Information. Notwithstanding the foregoing in the event that Recipient is required by law or regulation or a\nvalid order issued by a court or govermental agency of competent jurisdiction, to disclose any Confidential Information, Recipient will (i) provide Arctic Cat with prompt notice of such requirement prior to the disclosure; (ii) refrain\nfrom taking an action if Recipient, by so refraining, would not be required to disclose such Confidential Information; (iii) give A Arctic Cat all available information, reasonable assistance and necessary authority to enable Arctic\nCa\nto\ntake the measures that Arctic Cat, in its sole discretion, may deem appropriate or necessary to protect the Confidential Information from disclosure; and (iv) if, after providing such notice to Arctic Cat such that Arctic Cat has had an\nopportunity to seek protection or another remedy, Recipient remains subject to the requirement to disclose the Confidential Information, limit what is disclosed to the maximum extent possible under law or regulation and use\ncommercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.\n4.\nRecipient agrees that it will comply, and will require its Representatives to comply, with all applicable federal, state and local data protection laws and regulations in the maintenance, disclosure and use of all Personal Information\ncontained in any Confidential Information that is disclosed to the Recipient or its Representatives hereunder. For purposes of this Agreement, "Personal Information" means information that relates to an individual person and\nidentifies or can be used to identify, locate or contact that individual alone or when combined with other personal or identifying information that is or can be associated with that specific individual.\n5.\nRecipient acknowledges that it conducts business in similar and adjacent business spaces as Arctic Cat, and for that reason agrees to hold all Confidential Information in absolute trust and confidence, and to protect and safeguard\nagainst the unnecessary dissemination of Confidential Information both inside and outside the Recipient's businesses. Recipient will not disclose or render accessible Confidential Information to Recipient's affiliates unless and until\nconsented to in writing by Arctic Cat. Recipient shall further take all steps necessary and\n2\nsufficient to ensure that Confidential Information is not rendered accessible to individual Representatives that are not directly involved in evaluating the Transaction. Recipient will further ensure that all individuals who are given\naccess to Confidential Information will be specifically identified to Arctic Cat in writing in advance of being provided access to Confidential Information. Upon written notification, Arctic Cat shall have two business days to\nobjec to any individual Recipient being provided access to Confidential Information, unless earlier waived in writing by Arctic Cat In advance of being provided access to Confidential Information, each individual Recipient\nwill (i) be provided a copy of this Agreement and (ii) execute an acknowledgement in the form provided in A Addendum A stating they agree to be bound by and will conduct their investigation in accordance with this A greement\nand agree to comply with all applicable on-site access remote access and related security rules and procedures of Arctic Cat. Recipient will be responsible for any breach of this greemen by all those who gain access to\nConfidential Information via Recipient or its Representatives.\n6.\nExcept as required by applicable federal, state or local law or regulation, or as otherwise consented to in writing by Arctic Cat the Recipient shall not, and shal not permit its Representatives to disclose to any person that: (i) the\nConfidential Information has been made available to Recipient or its Representatives; (ii) that discussions or negotiations may be, or are, underway between the Recipient and Arctic Cat regarding the Confidential Information or a\nTransaction, including the status thereof; or (iii) any terms, conditions or other arrangements that are being discussed or negotiated in relation to the Confidential Information or a Transaction.\n7.\nRecipient acknowledges that none of Arctic Cat or its Representatives makes any express or implied representation or warranty as to the completeness and accuracy of any Confidential Information and Recipient agrees that no such\npersons shall have any liability to Recipient or any of Recipient's Representatives relating to or arising from Recipient's or such Representatives use of any Confidential Information or for any errors therein or omissions therefrom.\nRecipient also agrees that Recipient is not entitled to rely on the completeness or accuracy of any Confidential Information and that Recipient shall be entitled to rely solely on such representations and warranties as may be made by\nArctic Cat to Recipient in any definitive agreement relating to a Transaction, subject to the terms and conditions of such agreement. For purposes of this Agreement, a "definitive agreement" does not include an executed letter of\nintent or any other preliminary written agreement, nor does it include any written or oral acceptance of an offer or bid.\n8.\nArctic Cat hereby retains its entire right, title and interest including all intellectual property rights, in and to all Confidential Information. Any disclosure of such Confidential Information hereunder shall not be construed as an\nassignment, grant, option, license or other transfer of any such right, title or interest.\n9.\nUpon expiration or termination of this A greement, and upon written demand by Arctic Cat at any time, all Confidential Information including copies, Notes, photographs, and memoranda, produced or taken by Recipient in\nconnection with evaluating a Transaction, whether in hard copy or electronic format shall be destroyed or retumed to Arctic Cat, unless otherwise authorized in writing by A rctic Cat provided, however, that one copy may be\nretained for legal files for compliance and regulatory purposes and electronic archives and backups made in the ordinary course of business need not be purged, so long as they are maintained in accordance with the confidentiality\nprovisions of this Agreement. Upon written request, destruction of materials containing Confidential Information shall be certified by an officer of Recipient.\n3\n10.\nNo failure or delay by Arctic Cat in exercising any right, power or privilege hereunder shall operate as a waiver hereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of\nany right, power or privilege hereunder. Recipient agrees that money damages would not be a sufficient remedy for any breach of this Agreemen by Recipient or its Representatives, and that in addition to all other remedies Arctic\nCat shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach Recipient further agrees to waive, and to use its reasonable best efforts to cause its Representatives to waive,\nany requirement for the securing or posting of any bond in connection with such remedy.\n11.\nRecipient agrees to promptly notify Arctic Cat of any unauthorized disclosure of Confidential Information or other breaches of this Agreement by Recipient or its Representatives of which Recipient or its Representatives have\nknowledge and to fully cooperate with Arctic Cat in any effort undertaken by Arctic Cat to enforce its rights related to such unauthorized disclosure.\n12.\nNo party to this Agreement shall be under any obligation to enter into any further agreements with the other party or its Representatives as a result of this Agreement Arctic Cat and its Representatives shall be free at all times to\nconduct their business, operations and affairs in their sole discretion and to enter into any agreements with any other party, including with the respect to a Transaction Any such activities by Arctic Cat or its Representatives shall not\nbe a breach of this Agreement.\n13.\nWithout the written consent of Arctic Cat, Recipient and its Representatives shall not, during the term of this Agreement and for a period of eighteen months from expiration or termination of this Agreement, solici for employment\nany persons who are employees of Arctic Cat or any of its affiliates as of the date of this Agreement or at the time this Agreement expires or is terminated. Nothing contained herein shall preclude the hiring of any such employee\nwho: (i) Recipient was in discussions with regarding possible employment prior to the signing of this Agreement; (ii) responds to a general solicitation of employment through an advertisement not targeted specifically at Arctic Ca or\nits employees; or (iii) is referred to Recipient by search firms, employment agencies, or other similar entities, provided that such entities have not been specifically instructed by Recipient to solicit the employees of Arctic Cat.\n14.\nIn consideration of the Confidential Information being fumished to Recipient Recipient hereby agrees that, during the term of this Agreement and for a period of eighteen months following the expiration or termination of this\nAgreement (the "Standstill Period"), neither Recipient nor Recipient's directors, officers, employees or subsidiaries, nor any "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the\n"Exchange Act") of which Recipient or any of its directors, officers, employees or subsidiaries is a party will assist or encourage others (including by providing financing) to, directly or indirectly, without the prior written consent\nor request of the Board of Directors of Arctic Cat or an authorized Special Committee of such Board, (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets\nof Arctic Cat or any of its subsidiaries, any warrant or option to purchase such securities or assets any security convertible into any such securities, or any other right to acquire such securities or assets (other than purchases of\nproducts in the ordinary course of business) (ii) enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, material asset purchase, business combination, recapitalization, restructuring or other extraordinary\ntransaction involving Arctic Cat or engage in or participate in any way in any transaction regarding control of Arctic Cat, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote or seek to advise or\ninfluence any person with respect to the voting of, any voting securities of Arctic Cat, in opposition to the slate of directors nominated\n4\nby Arctic Cat or any other item of business recommended by Arctic Cat's Board of Directors to be voted on at any meeting of Arctic Cat's shareholders, (iv) form, join or in any way participate in a "group" (within the meaning\nof Section 13(d)(3) of the Exchange Act) with respect to any voting securities of Arctic Cat, (v) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders of Arctic Cat,\n(vi) nominate a competing slate of directors at any meeting of the Company's shareholders (vii) otherwise act alone or in concert with others, to seek to control or influence the management or policies of Arctic Cat,\n(viii) disclose any intention plan or arrangement prohibited by, or inconsistent with, the foregoing, or (ix) advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other\npersons in connection with the foregoing.\nRecipient further agrees that during the Standstill Period, neither it nor any of its Representatives will, directly or indirectly, without the prior written consent of the Board of Directors of Arctic Cat or an authorized Special\nCommittee of such Board, (x) make any request directly or indirectly, to amend or waive any provision of this Section 14 (including this sentence), or (y) take any action not requested by Arctic Cat that might require Arctic Cat\nto make a public announcement regarding the possibility of a business combination merger or other type of transaction described in this paragraph. Notwithstanding the foregoing, the preceding restrictions of this section shall\nterminate in the event that another person or "group" (within the meaning of Section 13(d)(3) of the Exchange Act) (a) shall have entered into a definitive agreement with Arctic Cat to acquire a controlling interest in Arctic Cat\nor all or substantially all of its assets or (b) has launched or publicly stated its intention to launch a tender or exchange offer for a majority of Arctic Cat's capital stock and Arctic Cat files a Schedule 14D-9 with respect to such\noffer that recommends acceptance of such tender or exchange offer.\n15.\nRecipient hereby acknowledges that it is aware, and that it will advise its Representatives who receive any Confidential Information, that the United States securities laws prohibit any person who has received from an issuer material,\nnonpublic information from purchasing or selling securities of such issuer (and options, warrants and rights relating thereto) or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities.\n16.\nRecipient agrees to defend indemnify and hold harmless Arctic Cat, its affiliates and their respective Representatives, successors and permitted assigns from and against all losses, damages liabilities, deficiencies, actions, judgments,\ninterest, awards, penalties, fines, costs or expenses of whatever kind including reasonable attomeys' fees, in connection with any third party claim, suit, action or proceeding arising out of or resulting from a material breach of this\nAgreement by Recipient or any of its Representatives.\n17.\nThis Agreement shall be govered by the laws of the State of Minnesota. Arctic Cat reserves the right to assign all of its rights under this Agreement to any of its affiliates or to a successor in interest to the business of Arctic Cat,\nincluding the right to enforce this Agreement. Recipient hereby consents to any such assignment Recipient shall not assign any of its rights or delegate any of its obligations hereunder without Arctic Cat's prior written consent. Any\npurported assignment or delegation by Recipient shall be null and void\n18.\nThe term of this Agreement shall commence on the Effective Date and shall expire one year from the Effective Date, provided that either Party may terminate this Agreement at any time by providing written notice to the other Party.\nIn addition, Recipient agrees to promptly inform Arctic Ca if Recipient determines not to proceed with a Transaction. Notwithstanding anything to the contrary herein, each Party's rights and obligations under this Agreement shall\n5\nsurvive the expiration or termination of this Agreement for a period of three years from the date of such expiration or termination even after the return or destruction of Confidential Information by Recipient (the "Survival\nPeriod"), provided the provisions of Sections 13 and 14 of this Agreement shall expire as provided in such Sections, and provided further that, with respect to the trade secrets of Arctic Cat, the Survival Period shall last for as\nlong as such Confidential Information qualifies as a trade secret under applicable federal, state or local law, and with respec to Personal Information disclosed by Arctic Cat the Survival Period shall last for the period of time\nrequired under applicable federal state and/or local law.\n19.\nAll notices, requests, consents, claims demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered and received by hand; (ii) when received by the addressee\nif sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or electronic transmission if sent during norma business hours of the recipient of the communication; or (d) on the third\ncalendar day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid Such communications must be sent to the respective parties at the addresses set forth on the signature page hereto (or such\nother addresses as designated from time to time in accordance with this section).\n20.\nThis A greement contains the entire agreement between Arctic Cat and Recipient concerning the subject matter hereof, and no provision of this Agreement may be waived, amended or modified in whole or in part nor any consent\ngiven unless approved in writing by a duly authorized Representative of each of Arctic Cat and Recipient, which writing specifically refers to this A greement and the provision so amended or modified or for which such waiver or\nconsent is given In the event that any provision of this Agreement is deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or\nimpaired thereby.\n21.\nIf any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity illegality or unenforceability shall not affect any other term or provision of this A greement or invalidate or render\nunenforceable such term or provision in any other jurisdiction.\n22.\nThis greemen may be executed in one or more counterparts (including by means of facsimile or electronically transmitted portable document format (PDF) signature pages), each of which shall be deemed to be an original, but\nall\nof which together shall constitute and be one and the same instrument.\nUpon execution hereof by both Arctic Cat and Recipient, this Agreement shall become a binding agreement between Arctic Cat and Recipient.\n[Signature Page Follows]\n6\nIN WITNESS WHEREOF, the parties have executed this Agreement to be effective as of the Effective Date.\nARCTIC CAT INC.\nTEXTRON INC.\nBy\n/s/ CHRISTOPHER T. METZ\nBy:\n/s/ SCOTT HEGSTROM\nName: Christopher T. Metz\nName: Scott Hegstrom\nTitle: President and Chief Executive Officer\nTitle: Vice President, Mergers & Acquisitions\nAddress: 500 North 3d Street,\nAddress: 40 Westminster Street,\nMinneapolis, MN 55401\nProvidence RI 02903\nTelephone: 612-305-1802\nTelephone: 401-457-2386\nFax:\nFax:\n401-457-3611\n[Signature Page to Confidentiality Agreement]\nQuickLinks\nEXHIBIT (d)(2)\nCONFIDENTIALITY AGREEMENT	EX-99 .(D)(2) 10 a2230805zex-99 _d2.htm EX-99.(D)(2)\nQuickLinks -- Click here to rapidly navigate through this document\nEXHIBIT (d)(2)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this "Agreement"), effective as of October 6, 2016 (the "Effective Date"), is by and between Arctic Cat Inc., a Minnesota corporation ("Arctic Cat"), and Textron Inc., a Delaware corporation with\nits headquarters located in Providence, Rhode Island ("Recipient").\nWHEREAS, in connection with Recipient's evaluation of a potential strategic transaction to be negotiated between Arctic Cat and Recipient (a "Transaction"), Recipient desires to receive certain information from Arctic Cat that is\nnon-public, confidential, or proprietary in nature; and\nWHEREAS, Arctic Cat desires to disclose to Recipient non-public, confidential, or proprietary information regarding Arctic Cat, subject to the terms and conditions of this Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, Arctic Cat and Recipient agree as follows:\n1.\nArctic Cat and Recipient agree that, as used in this Agreement, "Confidential Information" shall refer to all information that is not generally known to the public, or that is confidential or proprietary, and is disclosed before, on or\nafter the Effective Date by Arctic Cat to Recipient or its affiliates, or to any employees, officers, directors, partners, shareholders, agents, attorneys, accountants or advisors (collectively, "Representatives") of Recipient or its\naffiliates, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," including, without limitation:\na)\nall information concerning Arctic Cat's and its affiliates', and their dealers', customers', suppliers', commercial partners' and other third parties', past, present and future business affairs including, without limitation, information\nregarding products and product plans and designs, services, supplier information, subcontractor information, consultant information, organizational structure and internal practices, forecasts, sales and other financial information and\nresults, records and budgets, banking and investment information, capital investments, current and potential strategic initiatives, partnerships and relationships, pricing or purchasing information, and business, marketing,\ndevelopment, financial, sales and other commercial strategies, plans or proposals, initiatives, techniques, programs, and methods of operation;\nb)\ninformation relating to proprietary rights and data, ideas, know-how, trade secrets, inventions, licenses, techniques, improvements, design, design concepts and documentation, drawings, schematics, algorithms, source code, object\ncode, research, development, technology, processes, program documentation, product development, electronic data, software owned, licensed or developed by Arctic Cat or its affiliates, formulae, technical information, licenses,\npending patentable materials and/or designs, tests and/or test standards or manuals;\nc)\ninformation relating to employees and employee compensation and benefits;\nd)\nany third-party confidential information included with, or incorporated in, any information provided by Arctic Cat to Recipient or its Representatives;\ne)\nany other information that would reasonably be considered non-public, confidential or proprietary given the nature of the information and the businesses of Arctic Cat and Recipient; and\nf)\nall notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations and other materials (collectively, "Notes") prepared by or for\n1\nRecipient or its Representatives that contain, are based on, or otherwise reflect or are derived from, in whole or in part, any of the foregoing.\n2.\nExcept as required by applicable federal, state or local law or regulation, the term "Confidential Information" as used in this Agreement shall not include information that:\na)\nat the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any act or omission by Recipient or any of its Representatives;\nb)\nat the time of disclosure is, or thereafter becomes, available to Recipient on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information\nto Recipient by any legal, fiduciary or contractual obligation;\nc)\nwas known by or in the possession of Recipient, as established by documentary evidence, prior to being disclosed by or on behalf of Arctic Cat pursuant to this Agreement; or\nd)\nwas or is independently developed by Recipient, as established by documentary evidence, without reference to or use of, in whole or in part, any of Arctic Cat's Confidential Information.\n3.\nRecipient agrees that the Confidential Information shall be used only to evaluate a Transaction and shall not be used for any other purpose or disclosed to any third party except as provided herein. Recipient agrees not to take any\naction that would, directly or indirectly, cause a law, regulation or court order to require disclosure of any Confidential Information. Notwithstanding the foregoing, in the event that Recipient is required by law or regulation, or a\nvalid order issued by a court or governmental agency of competent jurisdiction, to disclose any Confidential Information, Recipient will: (i) provide Arctic Cat with prompt notice of such requirement prior to the disclosure; (ii) refrain\nfrom taking an action if Recipient, by so refraining, would not be required to disclose such Confidential Information; (iii) give Arctic Cat all available information, reasonable assistance and necessary authority to enable Arctic Cat to\ntake the measures that Arctic Cat, in its sole discretion, may deem appropriate or necessary to protect the Confidential Information from disclosure; and (iv) if, after providing such notice to Arctic Cat such that Arctic Cat has had an\nopportunity to seek protection or another remedy, Recipient remains subject to the requirement to disclose the Confidential Information, limit what is disclosed to the maximum extent possible under law or regulation and use\ncommercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.\n4.\nRecipient agrees that it will comply, and will require its Representatives to comply, with all applicable federal, state and local data protection laws and regulations in the maintenance, disclosure and use of all Personal Information\ncontained in any Confidential Information that is disclosed to the Recipient or its Representatives hereunder. For purposes of this Agreement, "Personal Information" means information that relates to an individual person and\nidentifies or can be used to identify, locate or contact that individual alone or when combined with other personal or identifying information that is or can be associated with that specific individual.\n5.\nRecipient acknowledges that it conducts business in similar and adjacent business spaces as Arctic Cat, and for that reason agrees to hold all Confidential Information in absolute trust and confidence, and to protect and safeguard\nagainst the unnecessary dissemination of Confidential Information both inside and outside the Recipient's businesses. Recipient will not disclose or render accessible Confidential Information to Recipient's affiliates unless and until\nconsented to in writing by Arctic Cat. Recipient shall further take all steps necessary and\n2\nsufficient to ensure that Confidential Information is not rendered accessible to individual Representatives that are not directly involved in evaluating the Transaction. Recipient will further ensure that all individuals who are given\naccess to Confidential Information will be specifically identified to Arctic Cat in writing in advance of being provided access to Confidential Information. Upon written notification, Arctic Cat shall have two business days to\nobject to any individual Recipient being provided access to Confidential Information, unless earlier waived in writing by Arctic Cat. In advance of being provided access to Confidential Information, each individual Recipient\nwill (i) be provided a copy of this Agreement and (ii) execute an acknowledgement in the form provided in Addendum A stating they agree to be bound by and will conduct their investigation in accordance with this Agreement\nand agree to comply with all applicable on-site access, remote access and related security rules and procedures of Arctic Cat. Recipient will be responsible for any breach of this Agreement by all those who gain access to\nConfidential Information via Recipient or its Representatives.\n6.\nExcept as required by applicable federal, state or local law or regulation, or as otherwise consented to in writing by Arctic Cat, the Recipient shall not, and shall not permit its Representatives to disclose to any person that: (i) the\nConfidential Information has been made available to Recipient or its Representatives; (ii) that discussions or negotiations may be, or are, underway between the Recipient and Arctic Cat regarding the Confidential Information or a\nTransaction, including the status thereof; or (iii) any terms, conditions or other arrangements that are being discussed or negotiated in relation to the Confidential Information or a Transaction.\n7.\nRecipient acknowledges that none of Arctic Cat or its Representatives makes any express or implied representation or warranty as to the completeness and accuracy of any Confidential Information, and Recipient agrees that no such\npersons shall have any liability to Recipient or any of Recipient's Representatives relating to or arising from Recipient's or such Representatives' use of any Confidential Information or for any errors therein or omissions therefrom.\nRecipient also agrees that Recipient is not entitled to rely on the completeness or accuracy of any Confidential Information and that Recipient shall be entitled to rely solely on such representations and warranties as may be made by\nArctic Cat to Recipient in any definitive agreement relating to a Transaction, subject to the terms and conditions of such agreement. For purposes of this Agreement, a "definitive agreement" does not include an executed letter of\nintent or any other preliminary written agreement, nor does it include any written or oral acceptance of an offer or bid.\n8.\nArctic Cat hereby retains its entire right, title and interest, including all intellectual property rights, in and to all Confidential Information. Any disclosure of such Confidential Information hereunder shall not be construed as an\nassignment, grant, option, license or other transfer of any such right, title or interest.\n9.\nUpon expiration or termination of this Agreement, and upon written demand by Arctic Cat at any time, all Confidential Information, including copies, Notes, photographs, and memoranda, produced or taken by Recipient in\nconnection with evaluating a Transaction, whether in hard copy or electronic format, shall be destroyed or returned to Arctic Cat, unless otherwise authorized in writing by Arctic Cat; provided, however, that one copy may be\nretained for legal files for compliance and regulatory purposes and electronic archives and backups made in the ordinary course of business need not be purged, so long as they are maintained in accordance with the confidentiality\nprovisions of this Agreement. Upon written request, destruction of materials containing Confidential Information shall be certified by an officer of Recipient.\n3\n10.\nNo failure or delay by Arctic Cat in exercising any right, power or privilege hereunder shall operate as a waiver hereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of\nany right, power or privilege hereunder. Recipient agrees that money damages would not be a sufficient remedy for any breach of this Agreement by Recipient or its Representatives, and that in addition to all other remedies Arctic\nCat shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach. Recipient further agrees to waive, and to use its reasonable best efforts to cause its Representatives to waive,\nany requirement for the securing or posting of any bond in connection with such remedy.\n11.\nRecipient agrees to promptly notify Arctic Cat of any unauthorized disclosure of Confidential Information or other breaches of this Agreement by Recipient or its Representatives of which Recipient or its Representatives have\nknowledge and to fully cooperate with Arctic Cat in any effort undertaken by Arctic Cat to enforce its rights related to such unauthorized disclosure.\n12.\nNo party to this Agreement shall be under any obligation to enter into any further agreements with the other party or its Representatives as a result of this Agreement. Arctic Cat and its Representatives shall be free at all times to\nconduct their business, operations and affairs in their sole discretion and to enter into any agreements with any other party, including with the respect to a Transaction. Any such activities by Arctic Cat or its Representatives shall not\nbe a breach of this Agreement.\n13.\nWithout the written consent of Arctic Cat, Recipient and its Representatives shall not, during the term of this Agreement and for a period of eighteen months from expiration or termination of this Agreement, solicit for employment\nany persons who are employees of Arctic Cat or any of its affiliates as of the date of this Agreement or at the time this Agreement expires or is terminated. Nothing contained herein shall preclude the hiring of any such employee\nwho: (i) Recipient was in discussions with regarding possible employment prior to the signing of this Agreement; (ii) responds to a general solicitation of employment through an advertisement not targeted specifically at Arctic Cat or\nits employees; or (iii) is referred to Recipient by search firms, employment agencies, or other similar entities, provided that such entities have not been specifically instructed by Recipient to solicit the employees of Arctic Cat.\n14.\nIn consideration of the Confidential Information being furnished to Recipient, Recipient hereby agrees that, during the term of this Agreement and for a period of eighteen months following the expiration or termination of this\nAgreement (the "Standstill Period") , neither Recipient nor Recipient's directors, officers, employees or subsidiaries, nor any "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the\n"Exchange Act")) of which Recipient or any of its directors, officers, employees or subsidiaries is a party, will assist or encourage others (including by providing financing) to, directly or indirectly, without the prior written consent\nor request of the Board of Directors of Arctic Cat or an authorized Special Committee of such Board, (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets\nof Arctic Cat or any of its subsidiaries, any warrant or option to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities or assets (other than purchases of\nproducts in the ordinary course of business), (ii) enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, material asset purchase, business combination, recapitalization, restructuring or other extraordinary\ntransaction involving Arctic Cat or engage in or participate in any way in any transaction regarding control of Arctic Cat, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote or seek to advise or\ninfluence any person with respect to the voting of, any voting securities of Arctic Cat, in opposition to the slate of directors nominated\n4\nby Arctic Cat or any other item of business recommended by Arctic Cat's Board of Directors to be voted on at any meeting of Arctic Cat's shareholders, (iv) form, join or in any way participate in a "group" (within the meaning\nof Section 13(d)(3) of the Exchange Act) with respect to any voting securities of Arctic Cat, (v) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders of Arctic Cat,\n(vi) nominate a competing slate of directors at any meeting of the Company's shareholders, (vii) otherwise act, alone or in concert with others, to seek to control or influence the management or policies of Arctic Cat,\n(viii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing, or (ix) advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other\npersons in connection with the foregoing.\nRecipient further agrees that during the Standstill Period, neither it nor any of its Representatives will, directly or indirectly, without the prior written consent of the Board of Directors of Arctic Cat or an authorized Special\nCommittee of such Board, (x) make any request directly or indirectly, to amend or waive any provision of this Section 14 (including this sentence), or (y) take any action not requested by Arctic Cat that might require Arctic Cat\nto make a public announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph. Notwithstanding the foregoing, the preceding restrictions of this section shall\nterminate in the event that another person or "group" (within the meaning of Section 13(d)(3) of the Exchange Act) (a) shall have entered into a definitive agreement with Arctic Cat to acquire a controlling interest in Arctic Cat\nor all or substantially all of its assets or (b) has launched or publicly stated its intention to launch a tender or exchange offer for a majority of Arctic Cat's capital stock and Arctic Cat files a Schedule 14D-9 with respect to such\noffer that recommends acceptance of such tender or exchange offer.\n15.\nRecipient hereby acknowledges that it is aware, and that it will advise its Representatives who receive any Confidential Information, that the United States securities laws prohibit any person who has received from an issuer material,\nnonpublic information from purchasing or selling securities of such issuer (and options, warrants and rights relating thereto) or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities.\n16.\nRecipient agrees to defend, indemnify and hold harmless Arctic Cat, its affiliates and their respective Representatives, successors and permitted assigns from and against all losses, damages, liabilities, deficiencies, actions, judgments,\ninterest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees, in connection with any third party claim, suit, action or proceeding arising out of or resulting from a material breach of this\nAgreement by Recipient or any of its Representatives.\n17.\nThis Agreement shall be governed by the laws of the State of Minnesota. Arctic Cat reserves the right to assign all of its rights under this Agreement to any of its affiliates or to a successor in interest to the business of Arctic Cat,\nincluding the right to enforce this Agreement. Recipient hereby consents to any such assignment. Recipient shall not assign any of its rights or delegate any of its obligations hereunder without Arctic Cat's prior written consent. Any\npurported assignment or delegation by Recipient shall be null and void.\n18.\nThe term of this Agreement shall commence on the Effective Date and shall expire one year from the Effective Date, provided that either Party may terminate this Agreement at any time by providing written notice to the other Party.\nIn addition, Recipient agrees to promptly inform Arctic Cat if Recipient determines not to proceed with a Transaction. Notwithstanding anything to the contrary herein, each Party's rights and obligations under this Agreement shall\n5\nsurvive the expiration or termination of this Agreement for a period of three years from the date of such expiration or termination, even after the return or destruction of Confidential Information by Recipient (the "Survival\nPeriod"), provided the provisions of Sections 13 and 14 of this Agreement shall expire as provided in such Sections, and provided further that, with respect to the trade secrets of Arctic Cat, the Survival Period shall last for as\nlong as such Confidential Information qualifies as a trade secret under applicable federal, state or local law, and with respect to Personal Information disclosed by Arctic Cat, the Survival Period shall last for the period of time\nrequired under applicable federal state and/or local law.\n19.\nAll notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered and received by hand; (ii) when received by the addressee\nif sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or electronic transmission if sent during normal business hours of the recipient of the communication; or (d) on the third\ncalendar day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the signature page hereto (or such\nother addresses as designated from time to time in accordance with this section).\n20.\nThis Agreement contains the entire agreement between Arctic Cat and Recipient concerning the subject matter hereof, and no provision of this Agreement may be waived, amended or modified, in whole or in part, nor any consent\ngiven, unless approved in writing by a duly authorized Representative of each of Arctic Cat and Recipient, which writing specifically refers to this Agreement and the provision so amended or modified or for which such waiver or\nconsent is given. In the event that any provision of this Agreement is deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or\nimpaired thereby.\n21.\nIf any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render\nunenforceable such term or provision in any other jurisdiction.\n22.\nThis Agreement may be executed in one or more counterparts (including by means of facsimile or electronically transmitted portable document format (PDF) signature pages), each of which shall be deemed to be an original, but all\nof which together shall constitute and be one and the same instrument.\nUpon execution hereof by both Arctic Cat and Recipient, this Agreement shall become a binding agreement between Arctic Cat and Recipient.\n[Signature Page Follows]\n6\nIN WITNESS WHEREOF, the parties have executed this Agreement to be effective as of the Effective Date.\nARCTIC CAT INC.\nTEXTRON INC.\nBy:\n/s/ CHRISTOPHER T. METZ\nBy:\n/s/ SCOTT HEGSTROM\nName: Christopher T. Metz\nName: Scott Hegstrom\nTitle: President and Chief Executive Officer\nTitle: Vice President, Mergers & Acquisitions\nAddress: 500 North 3d Street,\nMinneapolis, MN 55401\nAddress: 40 Westminster Street,\nProvidence, RI 02903\nTelephone: 612-305 -1802\nTelephone: 401-457 -2386\nFax:\nFax:\n401-457 -3611\n[Signature Page to Confidentiality Agreement]\nQuickLinks\nEXHIBIT (d)(2)\nCONFIDENTIALITY AGREEMENT
dce7dc12b15c343afffb7620cbdba71e.pdf	effective_date jurisdiction party	Exhibit 10.1\nSEPARATION AND CONFIDENTIALITY AGREEMENT AND GENERAL RELEASE\nTHIS SEPARATION AND CONFIDENTIALITY AGREEMENT AND GENERAL RELEASE (“Agreement”), dated April 18,\n2007, is made between The Cato Corporation (“Cato”) and Reynolds C. Faulkner, his heirs, executors, administrators, successors,\nand assigns (“Faulkner”). (Cato and Faulkner are referred to as “Parties”). This Agreement shall be effective on the date Faulkner and\nCato sign, subject to the revocation rights set forth below.\nWHEREAS, Faulkner previously was employed by Cato as its Executive Vice-President and Chief Financial Officer under a letter\nagreement dated March 6, 2006 (“Employment Agreement”);\nWHEREAS, upon being told by Cato that he would be terminated without cause and given the option to do so, Faulkner resigned\nrather than be terminated without cause, with such resignation effective October 30, 2006;\nWHEREAS, the Parties wish to settle and resolve all possible controversies between them amicably and expeditiously;\nNOW THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration, the\nreceipt and sufficiency of which is hereby acknowledged by Faulkner, the Parties agree as follows:\n1. Last Day of Employment. Faulkner’s last day of active employment with Cato was October 30, 2006. Faulkner is not eligible\nto participate in Cato’s 401(k) Retirement and Savings Plan or any other Cato-sponsored employee benefit plan after October 30,\n2006, except as set forth below.\n2. Consideration. In consideration for signing this Agreement, Cato will do the following:\n(a)\nPay to Faulkner on the next business day after the Revocation Period described in Paragraph 15, in a lump sum, $750,000, less\n(i) $29,196.12 already paid in November 2006, or $720,803.88, and (ii) less $3,357.86 as described in Section 2(b) below. Of\nthe $720,803.88 lump sum amount, $583,303.88 shall be deemed to be compensation in settlement of any wage, bonus, stock,\nseverance, or employment claims and will be subject to withholding for Federal and North Carolina income tax purposes and\nfor which Faulkner will be issued a Form W-2 for the year 2007 at the time provided for under existing governmental\nregulations. For the balance of the lump sum amount, or $137,500 paid in settlement of other claims, including in tort or any\nother basis, that Faulkner releases herein, Faulkner will be issued a Form 1099 for the year 2007 with respect thereto at the\ntime provided for under existing governmental regulations.\n(b)\nContinue Faulkner’s health insurance coverage (on the same basis and at the same level it is provided to current Cato\nassociates) from October 31, 2006 through October 31, 2007 or until Faulkner becomes eligible for another employer’s group\nhealth insurance benefits, whichever occurs first. Faulkner’s share of the health insurance premiums will be $3,357.86 .\nFaulkner agrees that this $3,357.86 amount will be withheld by Cato from the $720,803.88 lump sum payment above. From\nthe $3,357.86 amount, Cato will deduct any amounts needed to pay prior months of coverage, and going forward, Cato will\ndeduct $306.07 each month for Faulkner’s share of the health insurance premiums. In the event Faulkner becomes eligible for\nanother employer’s group health insurance benefits before October 31, 2007, Faulkner will notify Cato and Cato will pay to\nFaulkner any amount of the $3,357.86 that has not already been applied to Faulkner’s monthly share of the health insurance\npremiums.\n(c)\nFaulkner may convert the existing group life insurance coverage to an individual plan upon request to Cato’s Director of\nBenefits and Cato will provide the necessary paperwork and information upon Faulkner’s request.\n(d)\nAs of November 1, 2007, Faulkner will be eligible to continue group health and major medical coverage pursuant to the\nConsolidated Omnibus and Reform Act (COBRA), at the applicable COBRA rate for his coverage (excluding Life Insurance,\nShort Term Disability and Long Term Disability coverage), provided that Faulkner pays his monthly COBRA charges on or\nbefore the first day of each month of continuing coverage. Faulkner will be responsible for premium increases should any\noccur. Unless Faulkner informs Cato that he has become eligible for another employer’s group health insurance benefits\nbefore October 31, 2007, Cato’s Human Resources Department will send information to Faulkner for such continuation\nelection prior to October 31, 2007.\n3. General Release of All Claims. In consideration of the provisions of this Agreement running to Faulkner’s benefit, Faulkner\nknowingly and voluntarily releases and forever discharges Cato, its affiliates, subsidiaries, divisions, predecessors, insurers, benefit\nplans, successors, and assigns as well as their current and former employees, attorneys, officers, directors, and agents thereof, both\nindividually and in their official capacities (collectively, the “Cato Affiliates”), of and from any and all claims, known and unknown,\nasserted or unasserted, which Faulkner has or may have against Cato or the Cato Affiliates as of the effective date of this Agreement,\nincluding, but not limited to, any alleged violation of:\n•\nTitle VII of the Civil Rights Act of 1964;\n•\nSections 1981 through 1988 of Title 42 of the United States Code;\n•\nThe Employee Retirement Income Security Act of 1974 (except for any vested benefits under any tax qualified benefit plan);\n•\nThe Immigration Reform and Control Act;\n•\nThe Americans with Disabilities Act of 1990;\n•\nThe Age Discrimination in Employment Act of 1967;\n2\n•\nThe Workers Adjustment and Retraining Notification Act;\n•\nThe Fair Credit Reporting Act;\n•\nThe Sarbanes-Oxley Act of 2002;\n•\nAll North Carolina statutes, laws, and regulations;\n•\nAny other federal, state, or local law, rule, regulation, or ordinance;\n•\nAny public policy, contract, tort, or common law; or\n•\nAny basis for recovering costs, fees, or other expenses including attorneys’ fees incurred in any such matters.\n4. Covenant Not to Sue. Faulkner agrees that he will never institute a claim released above in Paragraph 3 against Cato or the\nCato Affiliates. If Faulkner violates this agreement by suing Cato or any of the Cato Affiliates for any claims released herein,\nFaulkner agrees that he will pay all costs and expenses of defending any such suit incurred by Cato or any of the Cato Affiliates,\nincluding reasonable attorneys’ fees.\n5. Affirmations. Faulkner makes the following affirmations:\n(a)\nHe has not filed, nor caused to be filed, nor is he presently a party to, any claim against Cato or any Cato Affiliate that (i) is\nnot being released by this instrument, and (ii) if filed, has not been withdrawn or dismissed.\n(b)\nHe has been paid for and/or has received all leaves (paid or unpaid), compensation, wages, bonuses, stock awards,\ncommissions, and/or benefits to which he may be entitled other than those provided to be paid under the terms of this\nAgreement.\n(c) He has no known workplace injuries or occupational diseases.\n(d) He will not apply in the future for employment, or accept employment, with Cato or any of its subsidiaries.\n6. Confidentiality and Return of Property. (a) Faulkner agrees not to disclose any information regarding the existence or\nsubstance of this Agreement, except to his immediate family, tax and financial advisor, and/or an attorney with whom Faulkner\nchooses to consult regarding his consideration of this Agreement. Furthermore, to the extent Faulkner is permitted to disclose and\ndoes disclose such information, Faulkner agrees to require, and he warrants, that the person receiving such information will maintain\nits confidentiality. Faulkner warrants and represents that from March 2, 2007 through his execution of this Agreement, he has not\nbreached the confidentiality provisions of this Agreement.\n(b)\nFaulkner acknowledges the highly competitive nature of Cato’s business and affirms that he has not divulged, and will not\ndivulge, to anyone outside of Cato\n3\nany proprietary or confidential information of Cato. “Confidential Information” means any information (i) which is, or is\ndesigned to be or may be used in Cato’s business, (ii) which is private or confidential in that it is not generally known or\navailable to the public, and (iii) which gives or may give Cato an opportunity to obtain an advantage over competitors or\npossible competitors, or which, if obtained by a competitor or possible competitor, would give or may give that competitor or\npossible competitor an advantage over Cato that a competitor may not otherwise have. Faulkner further acknowledges and\naffirms that he has not divulged, and will not divulge, to anyone outside of Cato any non-public information about Cato’s\ncompany performance, future plans, or performance of Cato Affiliates, whether “Confidential Information” or not, that\nFaulkner learned in the course of and because of his employment with Cato. Faulkner also acknowledges that he will not\ndivulge to anyone outside of Cato any non-public information about Cato’s internal business practices, whether “Confidential\nInformation” or not, that Faulkner learned in the course of and because of his employment with Cato. Provided, however, that\nFaulkner shall be entitled, subject to Paragraph 7 below, to respond to questions by a prospective employer with respect to his\nbusiness relationship as Chief Financial Officer with John Cato as Chief Executive Officer that led to Faulkner’s resignation\nfrom the company.\n(c)\nAt Cato’s reasonable advance request, and at mutually convenient times, Faulkner will make himself available to answer\nfactual questions or provide factual information on subjects related to business matters of Cato of which he has knowledge\narising from his former employment with Cato. In any legal proceeding to which he is not a party, his sworn testimony,\nincluding testimony in discovery, shall, however, be procured by subpoena.\n(d)\nThe Parties agree that nothing in this Paragraph is intended to limit or prohibit, or shall be construed as limiting or prohibiting,\neither Party from providing information in response to a lawfully issued subpoena or otherwise complying with any legal\nrequirement, or from participating in any investigation if requested to do so by a federal, state or local agency. The Parties\nfurther agree that the existence and substance of this Agreement may be disclosed in order to enforce its terms.\n(e)\nFaulkner affirms that he has returned all of Cato’s property, documents, and/or any confidential information in whatever form,\nand any duplicates thereof, in his possession or control. Faulkner also affirms that he is in possession of all of his property and\nthat Cato is not in possession of any of his property.\n7. Non-Disparagement. Faulkner and Cato agree that Faulkner and Cato’s Senior Executives (President, Executive Vice\nPresidents, Senior Vice Presidents, and Assistant to the President) will refrain from making negative, disparaging, defamatory or\nslanderous comments, references, criticism or characterizations concerning Faulkner, Cato, or the Cato Affiliates, either verbally, in\nwriting, or in any other manner, to any third party for any purpose whatsoever, unless a legal duty to do so is imposed. Faulkner\nfurther agrees not to make any other statement, written or oral (including but not limited to any media source or to any other party),\nthat would\n4\ndisrupt, impair or affect adversely the reputation, business interests, or profitability of Cato or any of the Cato Affiliates, unless a\nlegal duty to do so is imposed.\n8. Neutral Reference. In the event that any outside entities seek input from Cato for purposes of hiring Faulkner, Cato will\nprovide a neutral reference limited to his dates of employment, position, and annual salary.\n9. No Solicitation. Faulkner agrees that for a period of one year from the effective date of his resignation, he will not solicit any\nCato employee to leave Cato’s employment, initiate such a solicitation by a third party, allow himself to be listed as a reference by a\nCato employee, or hire or recommend for hire by any entity by whom he is employed anyone employed by Cato.\n10. Governing Law and Interpretation. This Agreement shall be governed and conformed in accordance with the laws of the\nState of North Carolina without regard to its conflict of laws provisions. In the event of a breach of any provision of this Agreement,\neither Party may institute an action specifically to enforce any term or terms of this Agreement and/or seek any damages for breach.\nShould any provision of this Agreement be declared illegal or unenforceable by any court of competent jurisdiction, and should such\nprovision be unable to be modified to be enforceable, excluding the general release language, such provision shall immediately\nbecome null and void, leaving the remainder of this Agreement in full force and effect.\n11. No Wrongdoing. The Parties agree that neither this Agreement nor the furnishing of the consideration for this Agreement\nshall be deemed or construed at any time for any purpose as an admission by Cato of wrongdoing or evidence of any liability or\nunlawful conduct of any kind.\n12. Amendment. This Agreement may not be modified, altered, or changed except in writing and signed by both Parties.\n13. Notices. Any delivery of funds or notices required under this Agreement shall be served upon the Parties via hand delivery,\ncertified mail, or overnight priority mail through a commercial third-party carrier (such as UPS or FedEx) as follows:\nNotices to Cato:\nRobert C. Brummer\nSenior Vice President\nThe Cato Corporation\n8100 Denmark Road\nCharlotte, NC 28273\nNotices to Faulkner:\nReynolds C. Faulkner\nC/O E. Osborne Ayscue, Jr.\nHelms Mullis & Wicker\n201 North Tryon Street\nCharlotte, North Carolina 28202\n5\n14. Entire Agreement. This Agreement sets forth the entire agreement between the Parties and replaces any prior agreements or\nunderstandings between the Parties, including without limitation the Employment Agreement. Faulkner acknowledges that he has not\nrelied on any representations, promises, or agreements of any kind made to him in connection with his decision to accept this\nAgreement, except for those set forth in this Agreement.\n15. ADEA Waiver and Acknowledgement. Faulkner acknowledges that he knowingly and voluntarily waives any rights he has\nunder the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C . 621 et seq., except those that may arise under the ADEA\nafter the date this Agreement is executed. Faulkner further acknowledges that the consideration he is receiving under this Agreement\nis in addition to anything of value to which Faulkner already is entitled. Faulkner acknowledges that he may, if desired, have a period\nof twenty-one (21) calendar days to consider this Agreement, including its reference to the ADEA contained here and in Paragraph 3\n(the “Consideration Period”). In addition, Faulkner may revoke this Agreement within a period of seven (7) calendar days following\nits execution (the “Revocation Period”). If Faulkner does not revoke the Agreement and Release during the Revocation Period, it will\nbecome fully effective upon expiration of the Revocation Period. Faulkner acknowledges that he has been advised by Cato that he\ncan and should consult with an attorney.\nFAULKNER AND CATO FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTER INTO THIS\nAGREEMENT INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS THEY HAVE OR MIGHT HAVE\nAGAINST ONE ANOTHER.\nThe Parties knowingly and voluntarily sign this Agreement as of the date(s) set forth below:\nREYNOLDS C. FAULKNER\nTHE CATO CORPORATION, a\nDelaware corporation\nBy: /s/ Reynolds C. Faulkner\nBy: /s/ Robert C. Brummer\nReynolds C. Faulkner\nRobert C. Brummer\nSenior Vice President\nDate: April 18, 2007\nDate: April 18, 2007\n6	Exhibit 10.1\nSEPARATION AND CONFIDENTIALITY AGREEMENT AND GENERAL RELEASE\nTHIS SEPARATION AND CONFIDENTIALITY AGREEMENT AND GENERAL RELEASE (”Agreement”), dated April 18,\n2007, is made between The Cato Corporation (”Cato”) and Reynolds C. Faulkner, his heirs, executors, administrators, successors,\nand assigns (”Faulkner”). (Cato and Faulkner are referred to as ”Parties"). This Agreement shall be effective on the date Faulkner and\nCato sign, subject to the revocation rights set forth below.\nWHEREA S, Faulkner previously was employed by Cato as its Executive Vice- President and Chief Financial Officer under a letter\nagreement dated March 6, 2006 (”Employment A greement”) ;\nWHEREAS, upon being told by Cato that he would be terminated without cause and given the option to do so, Faulkner resigned\nrather than be terminated without cause, with such resignation effective October 30, 2006;\nWHE REA S, the Parties wish to settle and resolve all possible controversies between them amicably and expeditiously;\nNOW THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration, the\nreceipt and sufficiency of which is hereby acknowledged by Faulkner, the Parties agree as follows:\n1. Last Day of Employment. Faulkner’ s last day of active employment with Cato was October 30, 2006. Faulkner is not eligible\nto participate in Cato’s 401(k) Retirement and Savings Plan or any other Cato-sponsored employee benefit plan after October 30,\n2006, except as set forth below.\n2. Consideration. In consideration for signing this A greement, Cato will do the following:\nPay to Faulkner on the next business day after the Revocation Period described in Paragraph 15, in a lump sum, $750,000, less\n(i) $29,196.12 already paid in November 2006, or $720,803.88, and (ii) less $3,357.86 as described in Section 2(b) below. Of\nthe $720,803.88 lump sum amount, $583,303.88 shall be deemed to be compensation in settlement of any wage, bonus, stock,\nseverance, or employment claims and will be subject to withholding for Federal and North Carolina income tax purposes and\nfor which Faulkner will be issued a Form W-2 for the year 2007 at the time provided for under existing governmental\nregulations. For the balance of the lump sum amount, or $137,500 paid in settlement of other claims, including in tort or any\nother basis, that Faulkner releases herein, Faulkner will be issued a Form 1099 for the year 2007 with respect thereto at the\ntime provided for under existing governmental regulations.\nContinue Faulkner’s health insurance coverage (on the same basis and at the same level it is provided to current Cato\nassociates) from October 31, 2006 through October 31, 2007 or until Faulkner becomes eligible for another employer’s group\nhealth insurance benefits, whichever occurs first. Faulkner’s share of the health insurance premiums will be $3,357.86.\nFaulkner agrees that this $3,357.86 amount will be withheld by Cato from the $720,803.88 lump sum payment above. From\nthe $3,357.86 amount, Cato will deduct any amounts needed to pay prior months of coverage, and going forward, Cato will\ndeduct $306.07 each month for Faulkner’s share of the health insurance premiums. In the event Faulkner becomes eligible for\nanother employer’ s group health insurance benefits before October 31, 2007, Faulkner will notify Cato and Cato will pay to\nFaulkner any amount of the $3,357.86 that has not already been applied to Faulkner’s monthly share of the health insurance\npremiums.\nFaulkner may convert the existing group life insurance coverage to an individual plan upon request to Cato’s Director of\nBenefits and Cato will provide the necessary paperwork and information upon Faulkner’s request.\nAs of November 1, 2007, Faulkner will be eligible to continue group health and major medical coverage pursuant to the\nConsolidated Omnibus and Reform Act (COBRA), at the applicable COBRA rate for his coverage (excluding Life Insurance,\nShort Term Disability and Long Term Disability coverage), provided that Faulkner pays his monthly COBRA charges on or\n(d) before the first day of each month of continuing coverage. Faulkner will be responsible for premium increases should any\noccur. Unless Faulkner informs Cato that he has become eligible for another employer’s group health insurance benefits\nbefore October 31, 2007, Cato’s Human Resources Department will send information to Faulkner for such continuation\nelection prior to October 31, 2007.\n3. G eneral Release of All Claims. In consideration of the provisions of this Agreement running to Faulkner’ s benefit, Faulkner\nknowingly and voluntarily releases and forever discharges Cato, its affiliates, subsidiaries, divisions, predecessors, insurers, benefit\nplans, successors, and assigns as well as their current and former employees, attorneys, officers, directors, and agents thereof, both\nindividually and in their official capacities (collectively, the ”Cato Affiliates”), of and from any and all claims, known and unknown,\nasserted or unasserted, which Faulkner has or may have against Cato or the Cato Affiliates as of the effective date of this Agreement,\nincluding, but not limited to, any alleged violation of:\n0 Title VII of the Civil Rights Act of 1964;\n0 Sections 1981 through 1988 of Title 42 of the United States Code;\n0 The Employee Retirement Income Security A ct of 1974 (except for any vested benefits under any tax qualified benefit plan);\n0 The Immigration Reform and Control Act;\n0 The Americans with Disabilities Act of 1990;\n0 The Age Discrimination in Employment Act of 1967;\n0 The Workers Adjustment and Retraining Notification Act;\n0 The Fair Credit Reporting Act;\n0 The Sarbanes-Oxley Act of 2002;\n0 All North Carolina statutes, laws, and regulations;\n0 Any other federal, state, or local law, rule, regulation, or ordinance;\n0 Any public policy, contract, tort, or common law; or\n0 Any basis for recovering costs, fees, or other expenses including attorneys’ fees incurred in any such matters.\n4. Covenant Not to Sue. Faulkner agrees that he will never institute a claim released above in Paragraph 3 against Cato or the\nCato Affiliates. If Faulkner violates this agreement by suing Cato or any of the Cato Affiliates for any claims released herein,\nFaulkner agrees that he will pay all costs and expenses of defending any such suit incurred by Cato or any of the Cato Affiliates,\nincluding reasonable attorneys’ fees.\n5. Affirmations. Faulkner makes the following affirmations:\n(a) He has not filed, nor caused to be filed, nor is he presently a party to, any claim against Cato or any Cato Affiliate that (i) is\nnot being released by this instrument, and (ii) if filed, has not been withdrawn or dismissed.\nHe has been paid for and/or has received all leaves (paid or unpaid), compensation, wages, bonuses, stock awards,\n(b) commissions, and/or benefits to which he may be entitled other than those provided to be paid under the terms of this\nAgreement.\n(c) He has no known workplace injuries or occupational diseases.\n(d) He will not apply in the future for employment, or accept employment, with Cato or any of its subsidiaries.\n6. Confidentiality and Return of Property. (a) Faulkner agrees not to disclose any information regarding the existence or\nsubstance of this Agreement, except to his immediate family, tax and financial advisor, and/or an attorney with whom Faulkner\nchooses to consult regarding his consideration of this Agreement. Furthermore, to the extent Faulkner is permitted to disclose and\ndoes disclose such information, Faulkner agrees to require, and he warrants, that the person receiving such information will maintain\nits confidentiality. Faulkner warrants and represents that from March 2, 2007 through his execution of this Agreement, he has not\nbreached the confidentiality provisions of this Agreement.\nFaulkner acknowledges the highly competitive nature of Cato’s business and affirms that he has not divulged, and will not\ndivulge, to anyone outside of Cato\nany proprietary or confidential information of Cato. ”Confidential Information” means any information (i) which is, or is\ndesigned to be or may be used in Cato’s business, (ii) which is private or confidential in that it is not generally known or\navailable to the public, and (iii) which gives or may give Cato an opportunity to obtain an advantage over competitors or\npossible competitors, or which, if obtained by a competitor or possible competitor, would give or may give that competitor or\npossible competitor an advantage over Cato that a competitor may not otherwise have. Faulkner further acknowledges and\naffirms that he has not divulged, and will not divulge, to anyone outside of Cato any non-public information about Cato's\ncompany performance, future plans, or performance of Cato Affiliates, whether ”Confidential Information” or not, that\nFaulkner learned in the course of and because of his employment with Cato. Faulkner also acknowledges that he will not\ndivulge to anyone outside of Cato any non-public information about Cato’s internal business practices, whether ”Confidential\nInformation” or not, that Faulkner learned in the course of and because of his employment with Cato. Provided, however, that\nFaulkner shall be entitled, subject to Paragraph 7 below, to respond to questions by a prospective employer with respect to his\nbusiness relationship as Chief Financial Officer with John Cato as Chief Executive Officer that led to Faulkner’ s resignation\nfrom the company.\nAt Cato’s reasonable advance request, and at mutually convenient times, Faulkner will make himself available to answer\nfactual questions or provide factual information on subjects related to business matters of Cato of which he has knowledge\narising from his former employment with Cato. In any legal proceeding to which he is not a party, his sworn testimony,\nincluding testimony in discovery, shall, however, be procured by subpoena.\nThe Parties agree that nothing in this Paragraph is intended to limit or prohibit, or shall be construed as limiting or prohibiting,\neither Party from providing information in response to a lawfully issued subpoena or otherwise complying with any legal\nrequirement, or from participating in any investigation if requested to do so by a federal, state or local agency. The Parties\nfurther agree that the existence and substance of this Agreement may be disclosed in order to enforce its terms.\nFaulkner affirms that he has returned all of Cato’ s property, documents, and/or any confidential information in whatever form,\n(e) and any duplicates thereof, in his possession or control. Faulkner also affirms that he is in possession of all of his property and\nthat Cato is not in possession of any of his property.\n7. Non-Disparagement. Faulkner and Cato agree that Faulkner and Cato’s Senior Executives (President, Executive Vice\nPresidents, Senior Vice Presidents, and Assistant to the President) will refrain from making negative, disparaging, defamatory or\nslanderous comments, references, criticism or characterizations concerning Faulkner, Cato, or the Cato Affiliates, either verbally, in\nwriting, or in any other manner, to any third party for any purpose whatsoever, unless a legal duty to do so is imposed. Faulkner\nfurther agrees not to make any other statement, written or oral (including but not limited to any media source or to any other party),\nthat would\ndisrupt, impair or affect adversely the reputation, business interests, or profitability of Cato or any of the Cato Affiliates, unless a\nlegal duty to do so is imposed.\n8. Neutral Reference. In the event that any outside entities seek input from Cato for purposes of hiring Faulkner, Cato will\nprovide a neutral reference limited to his dates of employment, position, and annual salary.\n9. N0 Solicitation. Faulkner agrees that for a period of one year from the effective date of his resignation, he will not solicit any\nCato employee to leave Cato’s employment, initiate such a solicitation by a third party, allow himself to be listed as a reference by a\nCato employee, or hire or recommend for hire by any entity by whom he is employed anyone employed by Cato.\n10. Governing Law and Interpretation. This Agreement shall be governed and conformed in accordance with the laws of the\nState of North Carolina without regard to its conflict of laws provisions. In the event of a breach of any provision of this Agreement,\neither Party may institute an action specifically to enforce any term or terms of this Agreement and/or seek any damages for breach.\nShould any provision of this Agreement be declared illegal or unenforceable by any court of competent jurisdiction, and should such\nprovision be unable to be modified to be enforceable, excluding the general release language, such provision shall immediately\nbecome null and void, leaving the remainder of this Agreement in full force and effect.\n11. N0 Wrongdoing. The Parties agree that neither this Agreement nor the furnishing of the consideration for this Agreement\nshall be deemed or construed at any time for any purpose as an admission by Cato of wrongdoing or evidence of any liability or\nunlawful conduct of any kind.\n12. Amendment. This Agreement may not be modified, altered, or changed except in writing and signed by both Parties.\n13. Notices. Any delivery of funds or notices required under this Agreement shall be served upon the Parties via hand delivery,\ncertified mail, or overnight priority mail through a commercial third-party carrier (such as UPS or FedEx) as follows:\nNotices to Cato: Robert C. Brummer\nSenior Vice President\nThe Cato Corporation\n8100 Denmark Road\nCharlotte, NC 28273\nNotices to Faulkner: Reynolds C. Faulkner\nC/O E. Osborne Ayscue, Jr.\nHelms Mullis & Wicker\n201 North Tryon Street\nCharlotte, North Carolina 28202\n5\n14. Entire Agreement. This Agreement sets forth the entire agreement between the Parties and replaces any prior agreements or\nunderstandings between the Parties, including without limitation the Employment Agreement. Faulkner acknowledges that he has not\nrelied on any representations, promises, or agreements of any kind made to him in connection with his decision to accept this\nAgreement, except for those set forth in this Agreement.\n15. ADEA Waiver and Acknowledgement. Faulkner acknowledges that he knowingly and voluntarily waives any rights he has\nunder the Age Discrimination in Employment Act (”ADEA”), 29 U.S.C. 621 et seq., except those that may arise under the ADEA\nafter the date this Agreement is executed. Faulkner further acknowledges that the consideration he is receiving under this Agreement\nis in addition to anything of value to which Faulkner already is entitled. Faulkner acknowledges that he may, if desired, have a period\nof twenty-one (21) calendar days to consider this Agreement, including its reference to the A DEA contained here and in Paragraph 3\n(the ”Consideration Period"). In addition, Faulkner may revoke this Agreement within a period of seven (7) calendar days following\nits execution (the ”Revocation Period"). If Faulkner does not revoke the Agreement and Release during the Revocation Period, it will\nbecome fully effective upon expiration of the Revocation Period. Faulkner acknowledges that he has been advised by Cato that he\ncan and should consult with an attorney.\nFAULKNER AND CATO FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTER INTO THIS\nAGREEMENT INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS THEY HAVE OR MIGHT HAVE\nAGAINST ONE ANOTHER.\nThe Parties knowingly and voluntarily sign this Agreement as of the date(s) set forth below:\nREYNOLDS C.FAULKNER THE CATO CORPORATION, a\nDelaware corporation\nBy: /s/ Reynolds C. Faulkner By: /s/ Robert C. Brummer\nReynolds C. Faulkner Robert C. Brummer\nSenior Vice President\nDate: April 18, 2007 Date: April 18, 2007	Exhibit 10.1\nSEPARATION AND CONFIDENTIALITY AGREEMENT AND GENERAL RELEASE\nTHIS SEPARATION AND CONFIDENTIALITY AGREEMENT AND GENERAL RELEASE ("Agreement"), dated April 18,\n2007, is made between The Cato Corporation ("Cato") and Reynolds C. Faulkner, his heirs, executors, administrators, successors,\nand assigns ("Faulkner"). (Cato and Faulkner are referred to as "Parties"). This A greement shall be effective on the date Faulkner and\nCato sign, subject to the revocation rights set forth below.\nWHEREAS, Faulkner previously was employed by Cato as its Executive Vice-President and Chief Financial Officer under a letter\nagreement dated March 6, 2006 ("Employment A greement");\nWHEREAS, upon being told by Cato that he would be terminated without cause and given the option to do so, Faulkner resigned\nrather than be terminated without cause, with such resignation effective October 30, 2006;\nWHEREAS, the Parties wish to settle and resolve all possible controversies between them amicably and expeditiously;\nNOW THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration, the\nreceipt and sufficiency of which is hereby acknowledged by Faulkner, the Parties agree as follows:\n1. Last Day of Employment. Faulkner's last day of active employment with Cato was October 30, 2006. Faulkner is not eligible\nto participate in Cato's 401(k) Retirement and Savings Plan or any other Cato-sponsored employee benefit plan after October 30,\n2006, except as set forth below.\n2. Consideration. In consideration for signing this A greement, Cato will do the following:\nPay to Faulkner on the next business day after the Revocation Period described in Paragraph 15, in a lump sum, $750,000, less\n(i) $29,196.12 already paid in November 2006, or $720,803.88, and (ii) less $3,357.86 as described in Section 2(b) below. Of\nthe $720,803.88 lump sum amount, $583,303.88 shall be deemed to be compensation in settlement of any wage, bonus, stock,\n(a)\nseverance, or employment claims and will be subject to withholding for Federal and North Carolina income tax purposes and\nfor which Faulkner will be issued a Form W-2 for the year 2007 at the time provided for under existing govermental\nregulations. For the balance of the lump sum amount, or $137,500 paid in settlement of other claims, including in tort or any\nother basis, that Faulkner releases herein, Faulkner will be issued a Form 1099 for the year 2007 with respect thereto at the\ntime provided for under existing governmental regulations.\n(b)\nContinue Faulkner's health insurance coverage (on the same basis and at the same level it is provided to current Cato\nassociates) from October 31, 2006 through October 31, 2007 or until Faulkner becomes eligible for another employer's group\nhealth insurance benefits, whichever ocCUrS first. Faulkner's share of the health insurance premiums will be $3,357.86.\nFaulkner agrees that this $3,357.86 amount will be withheld by Cato from the $720,803.88 lump sum payment above. From\nthe $3,357.86 amount, Cato will deduct any amounts needed to pay prior months of coverage, and going forward, Cato will\ndeduct $306.07 each month for Faulkner's share of the health insurance premiums. In the event Faulkner becomes eligible for\nanother employer's group health insurance benefits before October 31, 2007, Faulkner will notify Cato and Cato will pay to\nFaulkner any amount of the $3,357.86 that has not already been applied to Faulkner's monthly share of the health insurance\npremiums.\n(c)\nFaulkner may convert the existing group life insurance coverage to an individual plan upon request to Cato's Director of\nBenefits and Cato will provide the necessary paperwork and information upon Faulkner's request.\nAs of November 1, 2007, Faulkner will be eligible to continue group health and major medical coverage pursuant to the\nConsolidated Omnibus and Reform Act (COBRA), at the applicable COBRA rate for his coverage (excluding Life Insurance,\nShort Term Disability and Long Term Disability coverage), provided that Faulkner pays his monthly COBRA charges on or\n(d) before the first day of each month of continuing coverage. Faulkner will be responsible for premium increases should any\noccur. Unless Faulkner informs Cato that he has become eligible for another employer's group health insurance benefits\nbefore October 31, 2007, Cato's Human Resources Department will send information to Faulkner for such continuation\nelection prior to October 31, 2007.\n3. eneral Release of All Claims. In consideration of the provisions of this Agreement running to Faulkner's benefit, Faulkner\nknowingly and voluntarily releases and forever discharges Cato, its affiliates, subsidiaries, divisions, predecessors, insurers, benefit\nplans, successors, and assigns as well as their current and former employees, attorneys, officers, directors, and agents thereof, both\nindividually and in their official capacities (collectively, the "Cato Affiliates"), of and from any and all claims, known and unknown,\nasserted or unasserted, which Faulkner has or may have against Cato or the Cato Affiliates as of the effective date of this Agreement,\nincluding, but not limited to, any alleged violation of:\nTitle VII of the Civil Rights A ct of 1964;\nSections 1981 through 1988 of Title 42 of the United States Code;\nThe Employee Retirement Income Security A ct of 1974 (except for any vested benefits under any tax qualified benefit plan);\nThe Immigration Reform and Control Act;\nThe A mericans with Disabilities Act of 1990;\nThe Discrimination in Employment ct of 1967;\n2\nThe Workers Adjustment and Retraining Notification Act;\nThe Fair Credit Reporting Act;\nThe Sarbanes-Oxley Act of 2002;\nAll North Carolina statutes, laws, and regulations;\nAny other federal, state, or local law, rule, regulation or ordinance;\nAny public policy, contract, tort, or common law; or\nAny basis for recovering costs, fees, or other expenses including attorneys' fees incurred in any such matters.\n4. Covenant Not to Sue. Faulkner agrees that he will never institute a claim released above in Paragraph 3 against Cato or the\nCato Affiliates. If Faulkner violates this agreement by suing Cato or any of the Cato Affiliates for any claims released herein,\nFaulkner agrees that he will pay all costs and expenses of defending any such suit incurred by Cato or any of the Cato Affiliates,\nincluding reasonable attorneys' fees.\n5. Affirmations. Faulkner makes the following affirmations:\nHe has not filed, nor caused to be filed, nor is he presently a party to, any claim against Cato or any Cato Affiliate that (i) is\n(a)\nnot being released by this instrument, and (ii) if filed, has not been withdrawn or dismissed.\nHe has been paid for and/or has received all leaves (paid or unpaid), compensation wages, bonuses, stock awards,\n(b) commissions, and/or benefits to which he may be entitled other than those provided to be paid under the terms of this\nAgreement.\n(c) He has no known workplace injuries or occupational diseases.\n(d) He will not apply in the future for employment, or accept employment, with Cato or any of its subsidiaries.\n6. Confidentiality and Return of Property. (a) Faulkner agrees not to disclose any information regarding the existence or\nsubstance of this Agreement, except to his immediate family, tax and financial advisor, and/or an attorney with whom Faulkner\nchooses to consult regarding his consideration of this Agreement. Furthermore, to the extent Faulkner is permitted to disclose and\ndoes disclose such information, Faulkner agrees to require, and he warrants, that the person receiving such information will maintain\nits confidentiality. Faulkner warrants and represents that from March 2, 2007 through his execution of this Agreement, he has not\nbreached the confidentiality provisions of this Agreement.\n(b)\nFaulkner acknowledges the highly competitive nature of Cato's business and affirms that he has not divulged, and will not\ndivulge, to anyone outside of Cato\n3\nany proprietary or confidential information of Cato. "Confidential Information" means any information (i) which is, or is\ndesigned to be or may be used in Cato's business, (ii) which is private or confidential in that it is not generally known or\navailable to the public, and (iii) which gives or may give Cato an opportunity to obtain an advantage over competitors or\npossible competitors, or which, if obtained by a competitor or possible competitor, would give or may give that competitor or\npossible competitor an advantage over Cato that a competitor may not otherwise have. Faulkner further acknowledges and\naffirms that he has not divulged, and will not divulge, to anyone outside of Cato any non-public information about Cato's\ncompany performance, future plans, or performance of Cato Affiliates, whether "Confidential Information" or not, that\nFaulkner learned in the course of and because of his employment with Cato. Faulkner also acknowledges that he will not\ndivulge to anyone outside of Cato any non-public information about Cato's internal business practices, whether "Confidential\nInformation" or not, that Faulkner learned in the course of and because of his employment with Cato. Provided, however, that\nFaulkner shall be entitled, subject to Paragraph 7 below, to respond to questions by a prospective employer with respect to his\nbusiness relationship as Chief Financial Officer with John Cato as Chief Executive Officer that led to Faulkner's resignation\nfrom the company.\nAt Cato's reasonable advance request, and at mutually convenient times, Faulkner will make himself available to answer\n(c)\nfactual questions or provide factual information on subjects related to business matters of Cato of which he has knowledge\narising from his former employment with Cato. In any legal proceeding to which he is not a party, his swor testimony,\nincluding testimony in discovery, shall, however, be procured by subpoena\nThe Parties agree that nothing in this Paragraph is intended to limit or prohibit, or shall be construed as limiting or prohibiting,\n(d)\neither Party from providing information in response to a lawfully issued subpoena or otherwise complying with any legal\nrequirement or from participating in any investigation if requested to do so by a federal, state or local agency. The Parties\nfurther agree that the existence and substance of this greement may be disclosed in order to enforce its terms.\nFaulkner affirms that he has returned all of Cato's property, documents, and/or any confidential information in whatever form,\n(e)\nand any duplicates thereof, in his possession or control. Faulkner also affirms that he is in possession of all of his property and\nthat Cato is not in possession of any of his property.\n7. Non-Disparagement. Faulkner and Cato agree that Faulkner and Cato's Senior Executives (President, Executive Vice\nPresidents, Senior Vice Presidents, and Assistant to the President) will refrain from making negative, disparaging, defamatory or\nslanderous comments, references, criticism or characterizations concerning Faulkner, Cato, or the Cato Affiliates, either verbally, in\nwriting, or in any other manner, to any third party for any purpose whatsoever, unless a legal duty to do so is imposed Faulkner\nfurther agrees not to make any other statement, written or oral (including but not limited to any media source or to any other party),\nthat would\n4\ndisrupt, impair or affect adversely the reputation, business interests, or profitability of Cato or any of the Cato Affiliates, unless a\nlegal duty to do so is imposed.\n8. Neutral Reference. In the event that any outside entities seek input from Cato for purposes of hiring Faulkner, Cato will\nprovide a neutral reference limited to his dates of employment position, and annual salary.\n9. No Solicitation. Faulkner agrees that for a period of one year from the effective date of his resignation, he will not solicit any\nCato employee to leave Cato's employment, initiate such a solicitation by a third party, allow himself to be listed as a reference by\na\nCato employee, or hire or recommend for hire by any entity by whom he is employed anyone employed by Cato.\n10. Governing Law and Interpretation. This Agreement shall be governed and conformed in accordance with the laws of the\nState of North Carolina without regard to its conflict of laws provisions. In the event of a breach of any provision of this Agreement,\neither Party may institute an action specifically to enforce any term or terms of this Agreement and/or seek any damages for breach.\nShould any provision of this Agreement be declared illegal or unenforceable by any court of competent jurisdiction, and should such\nprovision be unable to be modified to be enforceable, excluding the general release language, such provision shall immediately\nbecome null and void, leaving the remainder of this A greement in full force and effect.\n11. No Wrongdoing. The Parties agree that neither this Agreement nor the furnishing of the consideration for this Agreement\nshall be deemed or construed at any time for any purpose as an admission by Cato of wrongdoing or evidence of any liability or\nunlawful conduct of any kind.\n12. Amendment. This Agreement may not be modified, altered, or changed except in writing and signed by both Parties.\n13. Notices. Any delivery of funds or notices required under this A greement shall be served upon the Parties via hand delivery,\ncertified mail, or overnight priority mail through a commercial third-party carrier (such as UPS or FedEx) as follows:\nNotices to Cato:\nRobert C. Brummer\nSenior Vice President\nThe Cato Corporation\n8100 Denmark Road\nCharlotte, NC 28273\nNotices to Faulkner:\nReynolds C. Faulkner\nC/O E. Osborne Ayscue, Jr.\nHelms Mullis & Wicker\n201 North Tryon Street\nCharlotte, North Carolina 28202\n5\n14. Entire Agreement. This Agreement sets forth the entire agreement between the Parties and replaces any prior agreements or\nunderstandings between the Parties, including without limitation the Employment A greement. Faulkner acknowledges that he has not\nrelied on any representations, promises, or agreements of any kind made to him in connection with his decision to accept this\nAgreement, except for those set forth in this Agreement.\n15.\nADEA Waiver and Acknowledgement Faulkner acknowledges that he knowingly and voluntarily waives any rights he has\nunder the Age Discrimination in Employment ct ("ADEA"), 29 U.S.C. 621 et seq., except those that may arise under the ADEA\nafter the date this Agreement is executed. Faulkner further acknowledges that the consideration he is receiving under this A greement\nis in addition to anything of value to which Faulkner already is entitled. Faulkner acknowledges that he may, if desired, have a period\nof twenty-one (21) calendar days to consider this Agreement including its reference to the ADEA contained here and in Paragraph 3\n(the "Consideration Period"). In addition, Faulkner may revoke this Agreement within a period of seven (7) calendar days following\nits execution (the "Revocation Period"). If Faulkner does not revoke the A greement and Release during the Revocation Period, it will\nbecome fully effective upon expiration of the Revocation Period. Faulkner acknowledges that he has been advised by Cato that he\ncan and should consult with an attorney.\nFAULKNER AND CATO FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTER INTO THIS\nAGREEMENT INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS THEY HAVE OR MIGHT HAVE\nAGAINST ONE ANOTHER.\nThe Parties knowingly and voluntarily sign this Agreement as of the date(s) set forth below:\nREYNOLDS C. FAULKNER\nTHE CATO CORPORATION, a\nDelaware corporation\nBy: /s/ Reynolds C. Faulkner\nBy: /s/ Robert C. Brummer\nReynolds C. Faulkner\nRobert C. Brummer\nSenior Vice President\nDate: April 18, 2007\nDate: April 18, 2007\n6	Exhibit 10.1\nSEPARATION AND CONFIDENTIALITY AGREEMENT AND GENERAL RELEASE\nTHIS SEPARATION AND CONFIDENTIALITY AGREEMENT AND GENERAL RELEASE (“Agreement”), dated April 18,\n2007, is made between The Cato Corporation (“Cato”) and Reynolds C. Faulkner, his heirs, executors, administrators, successors,\nand assigns (“Faulkner”). (Cato and Faulkner are referred to as “Parties”). This Agreement shall be effective on the date Faulkner and\nCato sign, subject to the revocation rights set forth below.\nWHEREAS, Faulkner previously was employed by Cato as its Executive Vice-President and Chief Financial Officer under a letter\nagreement dated March 6, 2006 (“Employment Agreement”);\nWHEREAS, upon being told by Cato that he would be terminated without cause and given the option to do so, Faulkner resigned\nrather than be terminated without cause, with such resignation effective October 30, 2006;\nWHEREAS, the Parties wish to settle and resolve all possible controversies between them amicably and expeditiously;\nNOW THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration, the\nreceipt and sufficiency of which is hereby acknowledged by Faulkner, the Parties agree as follows:\n1. Last Day of Employment. Faulkner’s last day of active employment with Cato was October 30, 2006. Faulkner is not eligible\nto participate in Cato’s 401(k) Retirement and Savings Plan or any other Cato-sponsored employee benefit plan after October 30,\n2006, except as set forth below.\n2. Consideration. In consideration for signing this Agreement, Cato will do the following:\n(a)\nPay to Faulkner on the next business day after the Revocation Period described in Paragraph 15, in a lump sum, $750,000, less\n(i) $29,196.12 already paid in November 2006, or $720,803.88, and (ii) less $3,357.86 as described in Section 2(b) below. Of\nthe $720,803.88 lump sum amount, $583,303.88 shall be deemed to be compensation in settlement of any wage, bonus, stock,\nseverance, or employment claims and will be subject to withholding for Federal and North Carolina income tax purposes and\nfor which Faulkner will be issued a Form W-2 for the year 2007 at the time provided for under existing governmental\nregulations. For the balance of the lump sum amount, or $137,500 paid in settlement of other claims, including in tort or any\nother basis, that Faulkner releases herein, Faulkner will be issued a Form 1099 for the year 2007 with respect thereto at the\ntime provided for under existing governmental regulations.\n(b)\nContinue Faulkner’s health insurance coverage (on the same basis and at the same level it is provided to current Cato\nassociates) from October 31, 2006 through October 31, 2007 or until Faulkner becomes eligible for another employer’s group\nhealth insurance benefits, whichever occurs first. Faulkner’s share of the health insurance premiums will be $3,357.86 .\nFaulkner agrees that this $3,357.86 amount will be withheld by Cato from the $720,803.88 lump sum payment above. From\nthe $3,357.86 amount, Cato will deduct any amounts needed to pay prior months of coverage, and going forward, Cato will\ndeduct $306.07 each month for Faulkner’s share of the health insurance premiums. In the event Faulkner becomes eligible for\nanother employer’s group health insurance benefits before October 31, 2007, Faulkner will notify Cato and Cato will pay to\nFaulkner any amount of the $3,357.86 that has not already been applied to Faulkner’s monthly share of the health insurance\npremiums.\n(c)\nFaulkner may convert the existing group life insurance coverage to an individual plan upon request to Cato’s Director of\nBenefits and Cato will provide the necessary paperwork and information upon Faulkner’s request.\n(d)\nAs of November 1, 2007, Faulkner will be eligible to continue group health and major medical coverage pursuant to the\nConsolidated Omnibus and Reform Act (COBRA), at the applicable COBRA rate for his coverage (excluding Life Insurance,\nShort Term Disability and Long Term Disability coverage), provided that Faulkner pays his monthly COBRA charges on or\nbefore the first day of each month of continuing coverage. Faulkner will be responsible for premium increases should any\noccur. Unless Faulkner informs Cato that he has become eligible for another employer’s group health insurance benefits\nbefore October 31, 2007, Cato’s Human Resources Department will send information to Faulkner for such continuation\nelection prior to October 31, 2007.\n3. General Release of All Claims. In consideration of the provisions of this Agreement running to Faulkner’s benefit, Faulkner\nknowingly and voluntarily releases and forever discharges Cato, its affiliates, subsidiaries, divisions, predecessors, insurers, benefit\nplans, successors, and assigns as well as their current and former employees, attorneys, officers, directors, and agents thereof, both\nindividually and in their official capacities (collectively, the “Cato Affiliates”), of and from any and all claims, known and unknown,\nasserted or unasserted, which Faulkner has or may have against Cato or the Cato Affiliates as of the effective date of this Agreement,\nincluding, but not limited to, any alleged violation of:\n•\nTitle VII of the Civil Rights Act of 1964;\n•\nSections 1981 through 1988 of Title 42 of the United States Code;\n•\nThe Employee Retirement Income Security Act of 1974 (except for any vested benefits under any tax qualified benefit plan);\n•\nThe Immigration Reform and Control Act;\n•\nThe Americans with Disabilities Act of 1990;\n•\nThe Age Discrimination in Employment Act of 1967;\n2\n•\nThe Workers Adjustment and Retraining Notification Act;\n•\nThe Fair Credit Reporting Act;\n•\nThe Sarbanes-Oxley Act of 2002;\n•\nAll North Carolina statutes, laws, and regulations;\n•\nAny other federal, state, or local law, rule, regulation, or ordinance;\n•\nAny public policy, contract, tort, or common law; or\n•\nAny basis for recovering costs, fees, or other expenses including attorneys’ fees incurred in any such matters.\n4. Covenant Not to Sue. Faulkner agrees that he will never institute a claim released above in Paragraph 3 against Cato or the\nCato Affiliates. If Faulkner violates this agreement by suing Cato or any of the Cato Affiliates for any claims released herein,\nFaulkner agrees that he will pay all costs and expenses of defending any such suit incurred by Cato or any of the Cato Affiliates,\nincluding reasonable attorneys’ fees.\n5. Affirmations. Faulkner makes the following affirmations:\n(a)\nHe has not filed, nor caused to be filed, nor is he presently a party to, any claim against Cato or any Cato Affiliate that (i) is\nnot being released by this instrument, and (ii) if filed, has not been withdrawn or dismissed.\n(b)\nHe has been paid for and/or has received all leaves (paid or unpaid), compensation, wages, bonuses, stock awards,\ncommissions, and/or benefits to which he may be entitled other than those provided to be paid under the terms of this\nAgreement.\n(c) He has no known workplace injuries or occupational diseases.\n(d) He will not apply in the future for employment, or accept employment, with Cato or any of its subsidiaries.\n6. Confidentiality and Return of Property. (a) Faulkner agrees not to disclose any information regarding the existence or\nsubstance of this Agreement, except to his immediate family, tax and financial advisor, and/or an attorney with whom Faulkner\nchooses to consult regarding his consideration of this Agreement. Furthermore, to the extent Faulkner is permitted to disclose and\ndoes disclose such information, Faulkner agrees to require, and he warrants, that the person receiving such information will maintain\nits confidentiality. Faulkner warrants and represents that from March 2, 2007 through his execution of this Agreement, he has not\nbreached the confidentiality provisions of this Agreement.\n(b)\nFaulkner acknowledges the highly competitive nature of Cato’s business and affirms that he has not divulged, and will not\ndivulge, to anyone outside of Cato\n3\nany proprietary or confidential information of Cato. “Confidential Information” means any information (i) which is, or is\ndesigned to be or may be used in Cato’s business, (ii) which is private or confidential in that it is not generally known or\navailable to the public, and (iii) which gives or may give Cato an opportunity to obtain an advantage over competitors or\npossible competitors, or which, if obtained by a competitor or possible competitor, would give or may give that competitor or\npossible competitor an advantage over Cato that a competitor may not otherwise have. Faulkner further acknowledges and\naffirms that he has not divulged, and will not divulge, to anyone outside of Cato any non-public information about Cato’s\ncompany performance, future plans, or performance of Cato Affiliates, whether “Confidential Information” or not, that\nFaulkner learned in the course of and because of his employment with Cato. Faulkner also acknowledges that he will not\ndivulge to anyone outside of Cato any non-public information about Cato’s internal business practices, whether “Confidential\nInformation” or not, that Faulkner learned in the course of and because of his employment with Cato. Provided, however, that\nFaulkner shall be entitled, subject to Paragraph 7 below, to respond to questions by a prospective employer with respect to his\nbusiness relationship as Chief Financial Officer with John Cato as Chief Executive Officer that led to Faulkner’s resignation\nfrom the company.\n(c)\nAt Cato’s reasonable advance request, and at mutually convenient times, Faulkner will make himself available to answer\nfactual questions or provide factual information on subjects related to business matters of Cato of which he has knowledge\narising from his former employment with Cato. In any legal proceeding to which he is not a party, his sworn testimony,\nincluding testimony in discovery, shall, however, be procured by subpoena.\n(d)\nThe Parties agree that nothing in this Paragraph is intended to limit or prohibit, or shall be construed as limiting or prohibiting,\neither Party from providing information in response to a lawfully issued subpoena or otherwise complying with any legal\nrequirement, or from participating in any investigation if requested to do so by a federal, state or local agency. The Parties\nfurther agree that the existence and substance of this Agreement may be disclosed in order to enforce its terms.\n(e)\nFaulkner affirms that he has returned all of Cato’s property, documents, and/or any confidential information in whatever form,\nand any duplicates thereof, in his possession or control. Faulkner also affirms that he is in possession of all of his property and\nthat Cato is not in possession of any of his property.\n7. Non-Disparagement. Faulkner and Cato agree that Faulkner and Cato’s Senior Executives (President, Executive Vice\nPresidents, Senior Vice Presidents, and Assistant to the President) will refrain from making negative, disparaging, defamatory or\nslanderous comments, references, criticism or characterizations concerning Faulkner, Cato, or the Cato Affiliates, either verbally, in\nwriting, or in any other manner, to any third party for any purpose whatsoever, unless a legal duty to do so is imposed. Faulkner\nfurther agrees not to make any other statement, written or oral (including but not limited to any media source or to any other party),\nthat would\n4\ndisrupt, impair or affect adversely the reputation, business interests, or profitability of Cato or any of the Cato Affiliates, unless a\nlegal duty to do so is imposed.\n8. Neutral Reference. In the event that any outside entities seek input from Cato for purposes of hiring Faulkner, Cato will\nprovide a neutral reference limited to his dates of employment, position, and annual salary.\n9. No Solicitation. Faulkner agrees that for a period of one year from the effective date of his resignation, he will not solicit any\nCato employee to leave Cato’s employment, initiate such a solicitation by a third party, allow himself to be listed as a reference by a\nCato employee, or hire or recommend for hire by any entity by whom he is employed anyone employed by Cato.\n10. Governing Law and Interpretation. This Agreement shall be governed and conformed in accordance with the laws of the\nState of North Carolina without regard to its conflict of laws provisions. In the event of a breach of any provision of this Agreement,\neither Party may institute an action specifically to enforce any term or terms of this Agreement and/or seek any damages for breach.\nShould any provision of this Agreement be declared illegal or unenforceable by any court of competent jurisdiction, and should such\nprovision be unable to be modified to be enforceable, excluding the general release language, such provision shall immediately\nbecome null and void, leaving the remainder of this Agreement in full force and effect.\n11. No Wrongdoing. The Parties agree that neither this Agreement nor the furnishing of the consideration for this Agreement\nshall be deemed or construed at any time for any purpose as an admission by Cato of wrongdoing or evidence of any liability or\nunlawful conduct of any kind.\n12. Amendment. This Agreement may not be modified, altered, or changed except in writing and signed by both Parties.\n13. Notices. Any delivery of funds or notices required under this Agreement shall be served upon the Parties via hand delivery,\ncertified mail, or overnight priority mail through a commercial third-party carrier (such as UPS or FedEx) as follows:\nNotices to Cato:\nRobert C. Brummer\nSenior Vice President\nThe Cato Corporation\n8100 Denmark Road\nCharlotte, NC 28273\nNotices to Faulkner:\nReynolds C. Faulkner\nC/O E. Osborne Ayscue, Jr.\nHelms Mullis & Wicker\n201 North Tryon Street\nCharlotte, North Carolina 28202\n5\n14. Entire Agreement. This Agreement sets forth the entire agreement between the Parties and replaces any prior agreements or\nunderstandings between the Parties, including without limitation the Employment Agreement. Faulkner acknowledges that he has not\nrelied on any representations, promises, or agreements of any kind made to him in connection with his decision to accept this\nAgreement, except for those set forth in this Agreement.\n15. ADEA Waiver and Acknowledgement. Faulkner acknowledges that he knowingly and voluntarily waives any rights he has\nunder the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C . 621 et seq., except those that may arise under the ADEA\nafter the date this Agreement is executed. Faulkner further acknowledges that the consideration he is receiving under this Agreement\nis in addition to anything of value to which Faulkner already is entitled. Faulkner acknowledges that he may, if desired, have a period\nof twenty-one (21) calendar days to consider this Agreement, including its reference to the ADEA contained here and in Paragraph 3\n(the “Consideration Period”). In addition, Faulkner may revoke this Agreement within a period of seven (7) calendar days following\nits execution (the “Revocation Period”). If Faulkner does not revoke the Agreement and Release during the Revocation Period, it will\nbecome fully effective upon expiration of the Revocation Period. Faulkner acknowledges that he has been advised by Cato that he\ncan and should consult with an attorney.\nFAULKNER AND CATO FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTER INTO THIS\nAGREEMENT INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS THEY HAVE OR MIGHT HAVE\nAGAINST ONE ANOTHER.\nThe Parties knowingly and voluntarily sign this Agreement as of the date(s) set forth below:\nREYNOLDS C. FAULKNER\nTHE CATO CORPORATION, a\nDelaware corporation\nBy: /s/ Reynolds C. Faulkner\nBy: /s/ Robert C. Brummer\nReynolds C. Faulkner\nRobert C. Brummer\nSenior Vice President\nDate: April 18, 2007\nDate: April 18, 2007\n6
dd2565e5177b0808800811fce8d502fa.pdf	effective_date jurisdiction party term	EX-99.(D)(9) 8 d333885dex99d9.htm EX-99.(D)(9)\nExhibit 99.(d)(9)\nNON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is made as of the 15th day of November, 2011 by and between COMVERGE, Inc., a corporation organized under the\nlaws of Delaware (“COMVERGE”) and H.I .G . Middle Market, LLC, a company located at 1450 Brickell Avenue, 3l Floor, Miami, FL 33131\n(“H.I.G .”). COMVERGE and H.I .G. are individually referred to as a “Party” and collectively referred to as the “Parties”.\nWHEREAS, COMVERGE will provide financial information and strategic operating plans, including drafts of financial projections, budgets\nand due diligence to H.I.G . and its Representatives (as defined below) for the purpose of H.I .G. making a potential investment in COMVERGE (the\n“Transaction”); and\nWHEREAS, COMVERGE will provide confidential and proprietary information and materials to H.I.G . and H.I .G . shall keep such\ninformation confidential.\nNOW THEREFORE, the Parties agree as follows:\n1. Confidential Information Defined. The Parties acknowledge that, in the course of the Transaction, it is anticipated that H.I.G . and its\nRepresentatives will receive certain non-public and confidential information, from or about COMVERGE, including, but not limited to financing\ninformation, operating budgets, strategic business plan documents, product and services offerings, software platform or any other confidential and\nproprietary information relating to the Transaction or COMVERGE. All such financial information and term sheets supplied by COMVERGE or its\nrepresentatives are hereinafter called the “Confidential Information”. The term “Confidential Information” as used herein also includes the\nTransaction itself and any information, work papers, analyses, compilations, projections, studies, documents, terms, conditions, correspondence,\nfacts or other materials derived or produced by COMVERGE or its representatives for each other which contain or otherwise reflect confidential or\nproprietary information provided or developed by COMVERGE in connection with the Transaction, or any other information which H.I.G. knows or\nreasonably ought to know is confidential or proprietary information of COMVERGE. Any Confidential Information supplied in connection with the\nTransaction by COMVERGE prior to the execution of this Agreement shall be considered in the same manner and be subject to the same treatment\nas the Confidential Information made available hereunder after the execution of this Agreement. For the purposes of this Agreement,\n“Representatives” of H.I .G. shall include its employees, officers, directors, financial advisors, staff agents, financing sources, representatives,\nconsultants, advisors or members of any Investment Review or similar committees, but only to the extent such parties receive Confidential\nInformation and excluding, in each case, any portfolio companies.\n2. Exclusions from Definition. The term “Confidential Information” as used herein does not include any data or information which the\nreceiving Party can demonstrate: (a) is already known to the receiving Party on a nonproprietary basis at the time it is disclosed to the receiving\nParty; (b) is or becomes generally known to the public through no wrongful act of the receiving Party or its representatives in violation of this\nAgreement; (c) has been rightfully received by the receiving Party from a third party without restriction on disclosure and without, to H.I .G.’s\nknowledge, a breach of an obligation of confidentiality running directly to the providing Party, if any; (d) has been approved for public release by\nwritten authorization by the originating Party; or (e ) was developed independently by H.I .G. or its Representatives without use of the Confidential\nInformation.\nst\n3. Non-disclosure Obligation. H.J .G . shall keep the Confidential Information confidential and shall not disclose such Confidential Information,\nin whole or in part, to any person other than its Representatives who need to know such Confidential Information in connection with H.I.G .’ S\nevaluation, negotiation and potential consummation of the Transaction, except with the prior written consent of COMVERGE or as otherwise\npermitted hereunder. The Confidential Information shall be used by H.I .G. solely for the purpose of evaluating the Transaction, and shall not be\notherwise used without COMVERGE’s prior written consent. H.I .G. agrees that it may disclose the Confidential Information only to those of its\nRepresentatives who need to know the Confidential Information for the purpose of assisting the Parties in connection with the Transaction. Prior to\ndisseminating any of the Confidential Information to any agent and/or representative permitted herein, H.I.G. shall advise its Representative of the\nconfidential nature of the Confidential Information, and shall require such Representative to agree to maintain the confidentiality of the Confidential\nInformation and to be bound by terms of confidentiality at least as restrictive as the terms of this Agreement. Additionally, except as required by law,\nneither Party shall, and each Party shall direct its representatives to not, disclose to any person (i) the fact that Confidential Information has been\nmade available to H.I.G . and its Representatives, (ii) the fact that the Parties are in discussions regarding the Transaction, or (iii) the terms and\nconditions of such discussions, including the status thereof.\n4. No Export. H.I.G . will not export, directly or indirectly, any Confidential information acquired from COMVERGE pursuant to this\nAgreement, or any product utilizing such Confidential information, to any country, or any company located in any country, for which the U.S .\nGovernment or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining written\nconsent from COMVERGE and the appropriate license.\n5. Standard of Protection. For the purpose of complying with the obligations set forth herein, H.I .G . shall use a reasonable standard of care, no\nless than efforts commensurate with those that it employs for the protection of its own confidential and sensitive information.\n6. Compliance with Legal Process. In the event that H.I .G. or its Representatives is legally requested or required (by oral questions,\ninterrogatories, requests for information or documents, subpoena, civil investigative demand or similar process or by applicable statutes, regulations\nor laws, including but not limited to the rules of any securities trading exchange or securities quotation system, or applicable professional standards\nof the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state boards of accountancy or\nobligations thereunder, to disclose any Confidential Information, H.I.G . shall, to the extent practicable and permitted by law, promptly notify\nCOMVERGE of such request or requirement prior to disclosure so that COMVERGE may seek an appropriate protective order and/or waive\ncompliance with the terms of this Agreement. For the avoidance of doubt, any disclosure made pursuant to this paragraph shall not be in breach of\nthis Agreement.\n7. Ownership; Return of Information. Except as may otherwise set forth in a written agreement between the parties relating to the Transaction,\nall Confidential Information (including tangible copies and computerized or electronic versions thereof and also all Confidential Information\ncontained in all deliverables and work papers), including all intellectual property rights pertaining\n2\nthereto, shall be the property of COMVERGE. No later than ten (10) business days following the receipt of a written request from COMVERGE,\nH.I .G. shall destroy or deliver to COMVERGE all Confidential Information, together with a certificate executed by the agent and/or representative\nor principal of H.I.G . confirming that all such materials in H.I.G .’s possession or control have been delivered to COMVERGE or destroyed, except\nas permitted herein. Notwithstanding the foregoing, H.I .G. and its Representatives may retain (i) any electronic or written copies of Confidential\nInformation as may be stored on its electronic records storage system as a result of automated backup systems or as may be otherwise required by\nlaw, other regulatory requirements, or internal document retention policies, provided that any such Confidential Information remains subject to this\nAgreement; and (ii) a single confidential copy of all Confidential Information which may be retained by H.I.G.’s internal legal counsel for the sole\npurpose of prosecuting or defending any matters which may arise from or relate to this Agreement.\n8. Remedies for Breach. The Parties understand and agree that money damages may not be a sufficient remedy for any breach of this\nAgreement and that the originating Party shall be entitled, without posting bond or other security, to seek injunctive or other equitable relief to\nremedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this\nAgreement, but shall be in addition to all other rights and remedies available at law or in equity, except as provided herein. Except in the event of\ngross negligence or willful misconduct, neither Party shall be liable for any consequential, indirect, punitive or special losses or damages (including,\nbut not limited to, lost profits, lost earnings and loss of production) incurred by the other Party in connection with such Party’s performance or\nfailure to perform any of its obligations under this Agreement, or the breach of any representation, warranty or other obligation hereunder, whether\nexpressed or implied and whether such damages are claimed under breach of warranty, breach of contract, tort, or other theory or cause of action at\nlaw or in equity.\n9. Standstill Period. H .I.G. acknowledges that, in its examination of the Confidential Information, you may have access to material non-public\ninformation concerning COMVERGE. You agree that, for a period of one year following the date of this agreement (the “Standstill Period”), you\nwill not, directly or indirectly, without the prior written consent of the majority of the Board of Directors of COMVERGE, (i) acquire, agree to\nacquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets of COMVERGE , any warrant or\noption to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities, (ii) other\nthan with respect to the Transaction, enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, business combination,\nrecapitalization, restructuring or other extraordinary transaction involving COMVERGE, (iii) make, or in any way participate or engage in, any\nsolicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of COMVERGE;\n(iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended\n(the “Exchange Act”)) with respect to any voting securities of COMVERGE, (v) call, request the calling of, or otherwise act, alone or in concert with\nothers, to seek to control or influence the management or the policies of COMVERGE, (vi) other than with respect to the Transaction, disclose any\nintention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (vii) except as permitted in the Agreement, advise, assist or\nencourage or enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with the foregoing. You\nfurther agree that during the Standstill Period you will not directly or indirectly, without the prior written consent of the Board of Directors of\nCOMVERGE, take\n3\nany action that to your knowledge might require COMVERGE to make a public announcement regarding the possibility of a business combination,\nmerger or other type of transaction described in this paragraph. The provisions of this paragraph shall be inoperative and of no force or effect if any\nother person or group (as defined in Section 13(d)(3) of the Exchange Act) shall have acquired or entered into a definitive agreement (approved by\nthe Board of Directors of COMVERGE) to acquire more than 50% of the outstanding voting securities of COMVERGE or assets of COMVERGE or\nits subsidiaries representing more than 50% of the consolidated earning power of COMVERGE and its subsidiaries. Notwithstanding the foregoing,\nand as described in Section 14, nothing in this section shall preclude H.I.G. from acquiring securities of COMVERGE in the public markets as a\npublic investor in COMVERGE, so long as such transactions do not violate the applicable United States securities laws. Furthermore, for avoidance\nof doubt, both Parties agree that the purpose of the Transaction is for H.I .G. to submit a proposal to COMVERGE regarding a possible transaction.\nAccordingly, until informed in writing by COMVERGE otherwise, H.I .G. may propose potential transactions to COMVERGE without violating any\nof the restrictions set forth above in this section.\n10. Non Solicit. For two years from the date hereof, you will not, directly or indirectly solicit for employment or hire any officer, director, or\nother key employees (to be specified in writing by COMVERGE) of COMVERGE or any of its subsidiaries or divisions with whom you have had\ncontact or who became known to you in connection with your consideration of the Transaction, except that you shall not be precluded from hiring\nany such employee who (i) initiates discussions regarding such employment without any direct or indirect solicitation by you, (ii) responds to any\npublic advertisement or non- directed search, or (iii) was terminated by COMVERGE. For avoidance of doubt, the provisions of this section shall\nnot apply to any portfolio companies of H.I.G . so long as H.I .G. does not share Confidential Information with its portfolio companies.\n11. Term, Termination. This Agreement shall be in effect as of the date first set forth above, and shall continue in full force and effect for a\nperiod of two (2) years after the date hereof.\n12. No Waiver. No failure or delay by COMVERGE in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor\nshall any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder.\n13. Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a written document signed by both\nParties hereto.\n14. Other Transactions. COMVERGE acknowledges and understands that H.I .G. and its Representatives may or in the future evaluate, invest\nin or do business with competitors or potential competitors of COMVERGE. Neither the execution of this Agreement nor receipt of Confidential\nInformation shall in any way restrict or preclude such activities. Moreover, notwithstanding any provision of this Agreement to the contrary, this\nAgreement shall not limit, restrict or impair H.I .G.’s ability or the ability of is Representatives to engage in transactions with respect to securities,\nbank debt, instruments and interests of COMVERGE or any other person or entity, so long as such transactions do not violate applicable United\nStates securities laws.\n15. Applicability to Affiliated Parties. Any information disclosed to H.I .G. by any of COMVERGE’s affiliates or by any company, person or\nother entity participating with COMVERGE,\n4\nin any consortium, partnership, joint venture or similar business combination in direct connection with the Transaction, which would otherwise\nconstitute Confidential Information hereunder if disclosed by COMVERGE, shall be deemed to constitute Confidential Information under this\nAgreement. For purposes of this agreement, an “affiliate” means an entity that directly or indirectly through one or more intermediaries, controls, is\ncontrolled by, or is under common control with, such entity.\n16. Attorneys’ Fees. Should COMVERGE or any beneficiary of this Agreement find it necessary to employ legal counsel and bring an\naction at law or in equity to enforce any of the terms or conditions of this Agreement the non-prevailing party (as determined in a final,\nnonappealable judicial opinion) shall reimburse the prevailing Party or any such beneficiary for all reasonable attorneys’ fees and costs incurred\npursuing such proceeding.\n17. Governing Law, Jurisdiction, Venue. This Agreement shall be governed by and construed, interpreted and enforced in accordance with\nthe laws of the State of Georgia, without giving effect to its principles or rules regarding conflicts of laws.\n18. Party Status. This Agreement is neither intended to create, nor shall it be construed as creating, (i) a joint venture, partnership or other\nform of business association between the Parties, (ii) an obligation to buy or sell products using or incorporating the Proprietary Information, (iii) an\nimplied or express license grant from either Party to the other, (iv) any obligation to continue discussions or negotiations with respect to any\npotential agreement between the Parties or (v) an agreement to enter into any agreement.\n19. Severability. In the event any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any\nrespect, the remaining provisions of this Agreement shall remain in full force and effect to the maximum extent possible; provided however, that the\nintention and essence of this Agreement may still be accomplished and satisfied.\n20. Disclosure. H .I.G. will notify COMVERGE in writing promptly upon the occurrence of any unauthorized release of Proprietary\nInformation or breach of this Agreement of which it is aware.\n21. Warranty Matters. THE PARTIES HERETO AGREE THAT NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARE\nGIVEN BY THE ORIGINATING PARTY WITH RESPECT TO THE CONFIDENTIAL INFORMATION DISCLOSED HEREUNDER,\nINCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, COURSE OF DEALING, USAGE OF\nTRADE, FITNESS FOR A PARTICULAR PURPOSE OR DESIGN.\n22. Miscellaneous. This Agreement may not be assigned by either Party without the prior written consent of the other and shall be binding\non, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be signed in one or more counterpart originals,\neach of which shall constitute an original document. The Parties agree that this Agreement can be executed via facsimile signatures and be binding.\nThis Agreement represents the entire understanding and agreement of the Parties and supersedes all prior communications, agreements and\nunderstandings between the Parties relating to the Transaction. It is understood that the terms of access by H.I .G. or its Representatives to\nConfidential Information in connection with the Transaction contained in any data room or website shall be superseded by the understandings and\nagreements contained herein.\n5\n23. Nothing in this Agreement shall be binding upon, or restrict the activities of, any of H.I .G.’s portfolio companies, investment professionals\nor affiliated investment funds that do not receive Confidential Information hereunder\nIN WITNESS WHEREOF, the parties have executed and delivered this Non-Disclosure Agreement effective as of the date first above\nwritten.\nCOMVERGE, INC.\n/s/ David Mathieson\nPrinted Name: David Mathieson\nTitle: Executive Vice President & Chief Financial Officer\nH.I .G . MIDDLE MARKET, LLC\n/s/ Joe Zulli\nPrinted Name: Joe Zulli\nTitle: Principal\n6	EX-99.(D)(9) 8 d333885dex99d9.htm EX-99.(D)(9)\nExhibit 99.(d)(9)\nNON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is made as of the 15th day of November, 2011 by and between COMVERGTE, Inc., a corporation organized under the\nlaws of Delaware (“COMVERGE”) and H.I.G. Middle Market, LL.C, a company located at 1450 Brickell Avenue, 3Ist Floor, Miami, FL 33131\n(“H.I.G.”). COMVERGE and H.I.G. are individually referred to as a “Party” and collectively referred to as the “Parties”.\nWHEREAS, COMVERGE will provide financial information and strategic operating plans, including drafts of financial projections, budgets\nand due diligence to H.I.G. and its Representatives (as defined below) for the purpose of H.I.G. making a potential investment in COMVERGE (the\n“Transaction”); and\nWHEREAS, COMVERGE will provide confidential and proprietary information and materials to H.I.G. and H.I.G. shall keep such\ninformation confidential.\nNOW THEREFORE, the Parties agree as follows:\n1. Confidential Information Defined. The Parties acknowledge that, in the course of the Transaction, it is anticipated that H.I.G. and its\nRepresentatives will receive certain non-public and confidential information, from or about COMVERGTE, including, but not limited to financing\ninformation, operating budgets, strategic business plan documents, product and services offerings, software platform or any other confidential and\nproprietary information relating to the Transaction or COMVERGE. All such financial information and term sheets supplied by COMVERGE or its\nrepresentatives are hereinafter called the “Confidential Information”. The term “Confidential Information” as used herein also includes the\nTransaction itself and any information, work papers, analyses, compilations, projections, studies, documents, terms, conditions, correspondence,\nfacts or other materials derived or produced by COMVERGE or its representatives for each other which contain or otherwise reflect confidential or\nproprietary information provided or developed by COMVERGE in connection with the Transaction, or any other information which H.I.G. knows or\nreasonably ought to know is confidential or proprietary information of COMVERGE. Any Confidential Information supplied in connection with the\nTransaction by COMVERGE prior to the execution of this Agreement shall be considered in the same manner and be subject to the same treatment\nas the Confidential Information made available hereunder after the execution of this Agreement. For the purposes of this Agreement,\n“Representatives” of H.I.G. shall include its employees, officers, directors, financial advisors, staff agents, financing sources, representatives,\nconsultants, advisors or members of any Investment Review or similar committees, but only to the extent such parties receive Confidential\nInformation and excluding, in each case, any portfolio companies.\n2. Exclusions from Definition. The term “Confidential Information” as used herein does not include any data or information which the\nreceiving Party can demonstrate: (a) is already known to the receiving Party on a nonproprietary basis at the time it is disclosed to the receiving\nParty; (b) is or becomes generally known to the public through no wrongful act of the receiving Party or its representatives in violation of this\nAgreement; (c) has been rightfully received by the receiving Party from a third party without restriction on disclosure and without, to H.I.G.’s\nknowledge, a breach of an obligation of confidentiality running directly to the providing Party, if any; (d) has been approved for public release by\nwritten authorization by the originating Party; or (e ) was developed independently by H.I.G. or its Representatives without use of the Confidential\nInformation.\n3. Non-disclosure Obligation. H.J.G. shall keep the Confidential Information confidential and shall not disclose such Confidential Information,\nin whole or in part, to any person other than its Representatives who need to know such Confidential Information in connection with H.I1.G.” S\nevaluation, negotiation and potential consummation of the Transaction, except with the prior written consent of COMVERGE or as otherwise\npermitted hereunder. The Confidential Information shall be used by H.I.G. solely for the purpose of evaluating the Transaction, and shall not be\notherwise used without COMVERGE’s prior written consent. H.I.G. agrees that it may disclose the Confidential Information only to those of its\nRepresentatives who need to know the Confidential Information for the purpose of assisting the Parties in connection with the Transaction. Prior to\ndisseminating any of the Confidential Information to any agent and/or representative permitted herein, H.I.G. shall advise its Representative of the\nconfidential nature of the Confidential Information, and shall require such Representative to agree to maintain the confidentiality of the Confidential\nInformation and to be bound by terms of confidentiality at least as restrictive as the terms of this Agreement. Additionally, except as required by law,\nneither Party shall, and each Party shall direct its representatives to not, disclose to any person (i) the fact that Confidential Information has been\nmade available to H.I.G. and its Representatives, (ii) the fact that the Parties are in discussions regarding the Transaction, or (iii) the terms and\nconditions of such discussions, including the status thereof.\n4. No Export. H.I.G. will not export, directly or indirectly, any Confidential information acquired from COMVERGE pursuant to this\nAgreement, or any product utilizing such Confidential information, to any country, or any company located in any country, for which the U.S.\nGovernment or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining written\nconsent from COMVERGE and the appropriate license.\n5. Standard of Protection. For the purpose of complying with the obligations set forth herein, H.I.G. shall use a reasonable standard of care, no\nless than efforts commensurate with those that it employs for the protection of its own confidential and sensitive information.\n6. Compliance with Legal Process. In the event that H.I.G. or its Representatives is legally requested or required (by oral questions,\ninterrogatories, requests for information or documents, subpoena, civil investigative demand or similar process or by applicable statutes, regulations\nor laws, including but not limited to the rules of any securities trading exchange or securities quotation system, or applicable professional standards\nof the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state boards of accountancy or\nobligations thereunder, to disclose any Confidential Information, H.I.G. shall, to the extent practicable and permitted by law, promptly notify\nCOMVERGE of such request or requirement prior to disclosure so that COMVERGE may seek an appropriate protective order and/or waive\ncompliance with the terms of this Agreement. For the avoidance of doubt, any disclosure made pursuant to this paragraph shall not be in breach of\nthis Agreement.\n7. Ownership; Return of Information. Except as may otherwise set forth in a written agreement between the parties relating to the Transaction,\nall Confidential Information (including tangible copies and computerized or electronic versions thereof and also all Confidential Information\ncontained in all deliverables and work papers), including all intellectual property rights pertaining\n2\nthereto, shall be the property of COMVERGE. No later than ten (10) business days following the receipt of a written request from COMVERGE,\nH.I.G. shall destroy or deliver to COMVERGE all Confidential Information, together with a certificate executed by the agent and/or representative\nor principal of H.I.G. confirming that all such materials in H.I.G.’s possession or control have been delivered to COMVERGE or destroyed, except\nas permitted herein. Notwithstanding the foregoing, H.I.G. and its Representatives may retain (i) any electronic or written copies of Confidential\nInformation as may be stored on its electronic records storage system as a result of automated backup systems or as may be otherwise required by\nlaw, other regulatory requirements, or internal document retention policies, provided that any such Confidential Information remains subject to this\nAgreement; and (ii) a single confidential copy of all Confidential Information which may be retained by H.I.G.’s internal legal counsel for the sole\npurpose of prosecuting or defending any matters which may arise from or relate to this Agreement.\n8. Remedies for Breach. The Parties understand and agree that money damages may not be a sufficient remedy for any breach of this\nAgreement and that the originating Party shall be entitled, without posting bond or other security, to seek injunctive or other equitable relief to\nremedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this\nAgreement, but shall be in addition to all other rights and remedies available at law or in equity, except as provided herein. Except in the event of\ngross negligence or willful misconduct, neither Party shall be liable for any consequential, indirect, punitive or special losses or damages (including,\nbut not limited to, lost profits, lost earnings and loss of production) incurred by the other Party in connection with such Party’s performance or\nfailure to perform any of its obligations under this Agreement, or the breach of any representation, warranty or other obligation hereunder, whether\nexpressed or implied and whether such damages are claimed under breach of warranty, breach of contract, tort, or other theory or cause of action at\nlaw or in equity.\n9. Standstill Period. H.I.G. acknowledges that, in its examination of the Confidential Information, you may have access to material non-public\ninformation concerning COMVERGE. You agree that, for a period of one year following the date of this agreement (the “Standstill Period”), you\nwill not, directly or indirectly, without the prior written consent of the majority of the Board of Directors of COMVERGE, (i) acquire, agree to\nacquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets of COMVERGE , any warrant or\noption to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities, (ii) other\nthan with respect to the Transaction, enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, business combination,\nrecapitalization, restructuring or other extraordinary transaction involving COMVERGE, (iii) make, or in any way participate or engage in, any\nsolicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of COMVERGE;\n(iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended\n(the “Exchange Act”)) with respect to any voting securities of COMVERGE, (v) call, request the calling of, or otherwise act, alone or in concert with\nothers, to seek to control or influence the management or the policies of COMVERGE, (vi) other than with respect to the Transaction, disclose any\nintention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (vii) except as permitted in the Agreement, advise, assist or\nencourage or enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with the foregoing. You\nfurther agree that during the Standstill Period you will not directly or indirectly, without the prior written consent of the Board of Directors of\nCOMVERGE, take\nany action that to your knowledge might require COMVERGE to make a public announcement regarding the possibility of a business combination,\nmerger or other type of transaction described in this paragraph. The provisions of this paragraph shall be inoperative and of no force or effect if any\nother person or group (as defined in Section 13(d)(3) of the Exchange Act) shall have acquired or entered into a definitive agreement (approved by\nthe Board of Directors of COMVERGE) to acquire more than 50% of the outstanding voting securities of COMVERGE or assets of COMVERGE or\nits subsidiaries representing more than 50% of the consolidated earning power of COMVERGE and its subsidiaries. Notwithstanding the foregoing,\nand as described in Section 14, nothing in this section shall preclude H.I.G. from acquiring securities of COMVERGE in the public markets as a\npublic investor in COMVERGE, so long as such transactions do not violate the applicable United States securities laws. Furthermore, for avoidance\nof doubt, both Parties agree that the purpose of the Transaction is for H.I.G. to submit a proposal to COMVERGE regarding a possible transaction.\nAccordingly, until informed in writing by COMVERGE otherwise, H.I.G. may propose potential transactions to COMVERGE without violating any\nof the restrictions set forth above in this section.\n10. Non Solicit. For two years from the date hereof, you will not, directly or indirectly solicit for employment or hire any officer, director, or\nother key employees (to be specified in writing by COMVERGE) of COMVERGE or any of its subsidiaries or divisions with whom you have had\ncontact or who became known to you in connection with your consideration of the Transaction, except that you shall not be precluded from hiring\nany such employee who (i) initiates discussions regarding such employment without any direct or indirect solicitation by you, (ii) responds to any\npublic advertisement or non- directed search, or (iii) was terminated by COMVERGE. For avoidance of doubt, the provisions of this section shall\nnot apply to any portfolio companies of H.I.G. so long as H.I.G. does not share Confidential Information with its portfolio companies.\n11. Term, Termination. This Agreement shall be in effect as of the date first set forth above, and shall continue in full force and effect for a\nperiod of two (2) years after the date hereof.\n12. No Waiver. No failure or delay by COMVERGE in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor\nshall any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder.\n13. Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a written document signed by both\nParties hereto.\n14. Other Transactions. COMVERGE acknowledges and understands that H.I.G. and its Representatives may or in the future evaluate, invest\nin or do business with competitors or potential competitors of COMVERGE. Neither the execution of this Agreement nor receipt of Confidential\nInformation shall in any way restrict or preclude such activities. Moreover, notwithstanding any provision of this Agreement to the contrary, this\nAgreement shall not limit, restrict or impair H.I.G.’s ability or the ability of is Representatives to engage in transactions with respect to securities,\nbank debt, instruments and interests of COMVERGE or any other person or entity, so long as such transactions do not violate applicable United\nStates securities laws.\n15. Applicability to Affiliated Parties. Any information disclosed to H.I.G. by any of COMVERGE's affiliates or by any company, person or\nother entity participating with COMVERGE,\nin any consortium, partnership, joint venture or similar business combination in direct connection with the Transaction, which would otherwise\nconstitute Confidential Information hereunder if disclosed by COMVERGE, shall be deemed to constitute Confidential Information under this\nAgreement. For purposes of this agreement, an “affiliate” means an entity that directly or indirectly through one or more intermediaries, controls, is\ncontrolled by, or is under common control with, such entity.\n16.  Attorneys’ Fees. Should COMVERGE or any beneficiary of this Agreement find it necessary to employ legal counsel and bring an\naction at law or in equity to enforce any of the terms or conditions of this Agreement the non-prevailing party (as determined in a final,\nnonappealable judicial opinion) shall reimburse the prevailing Party or any such beneficiary for all reasonable attorneys’ fees and costs incurred\npursuing such proceeding.\n \n17.  Governing Law, Jurisdiction, Venue. This Agreement shall be governed by and construed, interpreted and enforced in accordance with\nthe laws of the State of Georgia, without giving effect to its principles or rules regarding conflicts of laws.\n \n18.  Party Status. This Agreement is neither intended to create, nor shall it be construed as creating, (i) a joint venture, partnership or other\nform of business association between the Parties, (ii) an obligation to buy or sell products using or incorporating the Proprietary Information, (iii) an\nimplied or express license grant from either Party to the other, (iv) any obligation to continue discussions or negotiations with respect to any\npotential agreement between the Parties or (v) an agreement to enter into any agreement.\n19.  Severability. In the event any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any\nrespect, the remaining provisions of this Agreement shall remain in full force and effect to the maximum extent possible; provided however, that the\nintention and essence of this Agreement may still be accomplished and satisfied.\n20. Disclosure. H.I.G. will notify COMVERGE in writing promptly upon the occurrence of any unauthorized release of Proprietary\nInformation or breach of this Agreement of which it is aware.\n21. Warranty Matters. THE PARTIES HERETO AGREE THAT NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARE\nGIVEN BY THE ORIGINATING PARTY WITH RESPECT TO THE CONFIDENTIAL INFORMATION DISCLOSED HEREUNDER,\nINCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, COURSE OF DEALING, USAGE OF\nTRADE, FITNESS FOR A PARTICULAR PURPOSE OR DESIGN.\n22. Miscellaneous. This Agreement may not be assigned by either Party without the prior written consent of the other and shall be binding\non, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be signed in one or more counterpart originals,\neach of which shall constitute an original document. The Parties agree that this Agreement can be executed via facsimile signatures and be binding.\nThis Agreement represents the entire understanding and agreement of the Parties and supersedes all prior communications, agreements and\nunderstandings between the Parties relating to the Transaction. It is understood that the terms of access by H.I.G. or its Representatives to\nConfidential Information in connection with the Transaction contained in any data room or website shall be superseded by the understandings and\nagreements contained herein.\n23. Nothing in this Agreement shall be binding upon, or restrict the activities of, any of H.I.G.’s portfolio companies, investment professionals\nor affiliated investment funds that do not receive Confidential Information hereunder\nIN WITNESS WHEREOF, the parties have executed and delivered this Non-Disclosure Agreement effective as of the date first above\nwritten.\nCOMVERGE, INC.\n/s/ David Mathieson\nPrinted Name: David Mathieson\nTitle: Executive Vice President & Chief Financial Officer\nH.I.G. MIDDLE MARKET, LLC\n/s/ Joe Zulli\nPrinted Name: Joe Zulli\nTitle: Principal	EX-99.(D)(9) 8 d333885dex99d9.htm EX-99.(D)(9\nExhibit 99.(d)(9)\nNON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is made as of the 15th day of November, 2011 by and between COMVERGE, Inc., a corporation organized under the\nlaws of Delaware ("COMVERGE") and H.I.G. Middle Market, LLC, a company located at 1450 Brickell Avenue, 3lst Floor, Miami, FL 33131\n("H.I.G."). COMVERGE and H.I.G. are individually referred to as a "Party" and collectively referred to as the "Parties".\nWHEREAS, COMVERGE will provide financial information and strategic operating plans, including drafts of financial projections, budgets\nand due diligence to H.I.G. and its Representatives (as defined below) for the purpose of H.I.G. making a potential investment in COMVERGE (the\n"Transaction"); and\nWHEREAS, COMVERGE will provide confidential and proprietary information and materials to H.I.G. and H.I.G. shall keep such\ninformation confidential.\nNOW THEREFORE, the Parties agree as follows:\n1.\nConfidential Information Defined. The Parties acknowledge that, in the course of the Transaction, it is anticipated that H.I.G. and its\nRepresentatives will receive certain non-public and confidential information, from or about COMVERGE, including, but not limited to financing\ninformation, operating budgets, strategic business plan documents, product and services offerings, software platform or any other confidential and\nproprietary information relating to the Transaction or COMVERGE. All such financial information and term sheets supplied by COMVERGE or its\nrepresentatives are hereinafter called the "Confidential Information" The term "Confidential Information" as used herein also includes the\nTransaction itself and any information, work papers, analyses, compilations, projections, studies, documents, terms, conditions, correspondence,\nfacts or other materials derived or produced by COMVERGE or its representatives for each other which contain or otherwise reflect confidential or\nproprietary information provided or developed by COMVERGE in connection with the Transaction, or any other information which H.I.G. knows or\nreasonably ought to know is confidential or proprietary information of COMVERGE. Any Confidential Information supplied in connection with the\nTransaction by COMVERGE prior to the execution of this Agreement shall be considered in the same manner and be subject to the same treatment\nas the Confidential Information made available hereunder after the execution of this Agreement. For the purposes of this Agreement,\n"Representatives" of H.I.G. shall include its employees, officers, directors, financial advisors, staff agents, financing sources, representatives,\nconsultants, advisors or members of any Investment Review or similar committees, but only to the extent such parties receive Confidential\nInformation and excluding, in each case, any portfolio companies.\n2. Exclusions from Definition. The term "Confidential Information" as used herein does not include any data or information which the\nreceiving Party can demonstrate: (a) is already known to the receiving Party on a nonproprietary basis at the time it is disclosed to the receiving\nParty; (b) is or becomes generally known to the public through no wrongful act of the receiving Party or its representatives in violation of this\nAgreement; (c) has been rightfully received by the receiving Party from a third party without restriction on disclosure and without, to H.I.G.'s\nknowledge, a breach of an obligation of confidentiality running directly to the providing Party, if any; (d) has been approved for public release by\nwritten authorization by the originating Party; or (e) was developed independently by H.I.G. or its Representatives without use of the Confidentia\nInformation.\n3. Non-disclosure Obligation. H.J.G. shall keep the Confidential Information confidential and shall not disclose such Confidential Information,\nin whole or in part, to any person other than its Representatives who need to know such Confidential Information in connection with H.I.G.' S\nevaluation, negotiation and potential consummation of the Transaction, except with the prior written consent of COMVERGE or as otherwise\npermitted hereunder. The Confidential Information shall be used by H.I.G. solely for the purpose of evaluating the Transaction, and shall not be\notherwise used without COMVERGE'S prior written consent. H.I.G. agrees that it may disclose the Confidential Information only to those of its\nRepresentatives who need to know the Confidential Information for the purpose of assisting the Parties in connection with the Transaction. Prior to\ndisseminating any of the Confidential Information to any agent and/or representative permitted herein, H.I.G. shall advise its Representative of the\nconfidential nature of the Confidential Information, and shall require such Representative to agree to maintain the confidentiality of the Confidential\nInformation and to be bound by terms of confidentiality at least as restrictive as the terms of this Agreement. Additionally, except as required by law,\nneither Party shall, and each Party shall direct its representatives to not, disclose to any person (i) the fact that Confidential Information has been\nmade available to H.I.G. and its Representatives, (ii) the fact that the Parties are in discussions regarding the Transaction, or (iii) the terms and\nconditions of such discussions, including the status thereof.\n4.\nNo Export. H.I.G. will not export, directly or indirectly, any Confidential information acquired from COMVERGE pursuant to this\nAgreement, or any product utilizing such Confidential information, to any country, or any company located in any country, for which the U.S.\nGovernment or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining written\nconsent from COMVERGE and the appropriate license.\n5. Standard of Protection. For the purpose of complying with the obligations set forth herein, H.I.G. shall use a reasonable standard of care, no\nless than efforts commensurate with those that it employs for the protection of its own confidential and sensitive information.\n6. Compliance with Legal Process In the event that H.I.G. or its Representatives is legally requested or required (by oral questions,\ninterrogatories, requests for information or documents, subpoena, civil investigative demand or similar process or by applicable statutes, regulations\nor laws, including but not limited to the rules of any securities trading exchange or securities quotation system, or applicable professional standards\nof the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state boards of accountancy or\nobligations thereunder, to disclose any Confidential Information, H.I.G. shall, to the extent practicable and permitted by law, promptly notify\nCOMVERGE of such request or requirement prior to disclosure so that COMVERGE may seek an appropriate protective order and/or waive\ncompliance with the terms of this Agreement. For the avoidance of doubt, any disclosure made pursuant to this paragraph shall not be in breach of\nthis Agreement.\n7. Ownership; Return of Information. Except as may otherwise set forth in a written agreement between the parties relating to the Transaction,\nall Confidential Information (including tangible copies and computerized or electronic versions thereof and also all Confidential Information\ncontained in all deliverables and work papers), including all intellectual property rights pertaining\n2\nthereto, shall be the property of COMVERGE. No later than ten (10) business days following the receipt of a written request from COMVERGE,\nH.I.G. shall destroy or deliver to COMVERGE all Confidential Information, together with a certificate executed by the agent and/or representative\nor principal of H.I.G. confirming that all such materials in H.I.G.'s possession or control have been delivered to COMVERGE or destroyed, except\nas permitted herein. Notwithstanding the foregoing, H.I.G. and its Representatives may retain (i) any electronic or written copies of Confidential\nInformation as may be stored on its electronic records storage system as a result of automated backup systems or as may be otherwise required by\nlaw, other regulatory requirements, or internal document retention policies, provided that any such Confidential Information remains subject to this\nAgreement; and (ii) a single confidential copy of all Confidential Information which may be retained by H.I.G.'s internal legal counsel for the sole\npurpose of prosecuting or defending any matters which may arise from or relate to this Agreement.\n8.\nRemedies for Breach. The Parties understand and agree that money damages may not be a sufficient remedy for any breach of this\nAgreement and that the originating Party shall be entitled, without posting bond or other security, to seek injunctive or other equitable relief to\nremedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this\nAgreement, but shall be in addition to all other rights and remedies available at law or in equity, except as provided herein. Except in the event of\ngross negligence or willful misconduct, neither Party shall be liable for any consequential, indirect, punitive or special losses or damages (including,\nbut not limited to, lost profits, lost earnings and loss of production) incurred by the other Party in connection with such Party's performance or\nfailure to perform any of its obligations under this Agreement, or the breach of any representation, warranty or other obligation hereunder, whether\nexpressed or implied and whether such damages are claimed under breach of warranty, breach of contract, tort, or other theory or cause of action at\nlaw or in equity.\n9.\nStandstill Period. H.I.G. acknowledges that, in its examination of the Confidential Information, you may have access to material non-public\ninformation concerning COMVERGE. You agree that, for a period of one year following the date of this agreement (the "Standstill Period"), you\nwill not, directly or indirectly, without the prior written consent of the majority of the Board of Directors of COMVERGE, (i) acquire, agree\nto\nacquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets of COMVERGE any warrant or\noption to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities, (ii) other\nthan with respect to the Transaction, enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, business combination,\nrecapitalization, restructuring or other extraordinary transaction involving COMVERGE, (iii) make, or in any way participate or engage in, any\nsolicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of COMVERGE;\n(iv) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended\n(the "Exchange Act")) with respect to any voting securities of COMVERGE, (v) call, request the calling of, or otherwise act, alone or in concert with\nothers, to seek to control or influence the management or the policies of COMVERGE, (vi) other than with respect to the Transaction, disclose\nany\nintention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (vii) except as permitted in the Agreement, advise, assist or\nencourage\nor enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with the foregoing.\nYou\nfurther agree that during the Standstill Period you will not directly or indirectly, without the prior written consent of the Board of Directors of\nCOMVERGE, take\n3\nany action that to your knowledge might require COMVERGE to make a public announcement regarding the possibility of a business combination,\nmerger or other type of transaction described in this paragraph. The provisions of this paragraph shall be inoperative and of no force or effect if any\nother person or group (as defined in Section 13(d)(3) of the Exchange Act) shall have acquired or entered into a definitive agreement (approved by\nthe Board of Directors of COMVERGE) to acquire more than 50% of the outstanding voting securities of COMVERGE or assets of COMVERGE or\nits subsidiaries representing more than 50% of the consolidated earning power of COMVERGE and its subsidiaries. Notwithstanding the foregoing,\nand as described in Section 14, nothing in this section shall preclude H.I.G. from acquiring securities of COMVERGE in the public markets as a\npublic investor in COMVERGE, so long as such transactions do not violate the applicable United States securities laws. Furthermore, for avoidance\nof doubt, both Parties agree that the purpose of the Transaction is for H.I.G. to submit a proposal to COMVERGE regarding a possible transaction.\nAccordingly, until informed in writing by COMVERGE otherwise, H.I.G. may propose potential transactions to COMVERGE without violating any\nof the restrictions set forth above in this section.\n10. Non Solicit. For two years from the date hereof, you will not, directly or indirectly solicit for employment or hire any officer, director, or\nother key employees (to be specified in writing by COMVERGE) of COMVERGE or any of its subsidiaries or divisions with whom you have had\ncontact or who became known to you in connection with your consideration of the Transaction, except that you shall not be precluded from hiring\nany such employee who (i) initiates discussions regarding such employment without any direct or indirect solicitation by you, (ii) responds to any\npublic advertisement or non- directed search, or (iii) was terminated by COMVERGE. For avoidance of doubt, the provisions of this section shall\nnot apply to any portfolio companies of H.I.G. so long as H.I.G. does not share Confidential Information with its portfolio companies.\n11. Term, Termination. This Agreement shall be in effect as of the date first set forth above, and shall continue in full force and effect for\na\nperiod of two (2) years after the date hereof.\n12. No Waiver. No failure or delay by COMVERGE in exercising any right, power or privilege hereunder shall operate as a waiver thereof,\nnor\nshall any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder.\n13. Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a written document signed by both\nParties hereto.\n14. Other Transactions COMVERGE acknowledges and understands that H.I.G. and its Representatives may or in the future evaluate, invest\nin\nor\ndo business with competitors or potential competitors of COMVERGE. Neither the execution of this Agreement nor receipt of Confidential\nInformation shall in any way restrict or preclude such activities. Moreover, notwithstanding any provision of this Agreement to the contrary, this\nAgreement shall not limit, restrict or impair H.I.G.'s ability or the ability of is Representatives to engage in transactions with respect to securities,\nbank debt, instruments and interests of COMVERGE or any other person or entity, so long as such transactions do not violate applicable United\nStates securities laws.\n15. Applicability to Affiliated Parties. Any information disclosed to H.I.G. by any of COMVERGE'S affiliates or by any company, person or\nother entity participating with COMVERGE,\n4\nin any consortium, partnership, joint venture or similar business combination in direct connection with the Transaction, which would otherwise\nconstitute Confidential Information hereunder if disclosed by COMVERGE, shall be deemed to constitute Confidential Information under this\nAgreement. For purposes of this agreement, an "affiliate" means an entity that directly or indirectly through one or more intermediaries, controls, is\ncontrolled by, or is under common control with, such entity.\n16.\nAttorneys' Fees. Should COMVERGE or any beneficiary of this Agreement find it necessary to employ legal counsel and bring an\naction at law or in equity to enforce any of the terms or conditions of this Agreement the non-prevailing party (as determined in a final,\nnonappealable judicial opinion) shall reimburse the prevailing Party or any such beneficiary for all reasonable attorneys' fees and costs incurred\npursuing such proceeding.\n17. Governing Law, Jurisdiction, Venue. This Agreement shall be governed by and construed, interpreted and enforced in accordance with\nthe laws of the State of Georgia, without giving effect to its principles or rules regarding conflicts of laws.\n18. Party. Status. This Agreement is neither intended to create, nor shall it be construed as creating, (i) a joint venture, partnership or other\nform of business association between the Parties, (ii) an obligation to buy or sell products using or incorporating the Proprietary Information, (iii) an\nimplied or express license grant from either Party to the other, (iv) any obligation to continue discussions or negotiations with respect to any\npotential agreement between the Parties or (v) an agreement to enter into any agreement.\n19. Severability.. In the event any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any\nrespect, the remaining provisions of this Agreement shall remain in full force and effect to the maximum extent possible; provided however, that the\nintention and essence of this Agreement may still be accomplished and satisfied.\n20. Disclosure H.I.G. will notify COMVERGE in writing promptly upon the occurrence of any unauthorized release of Proprietary\nInformation or breach of this Agreement of which it is aware.\n21. Warranty. Matters. THE PARTIES HERETO AGREE THAT NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARE\nGIVEN BY THE ORIGINATING PARTY WITH RESPECT TO THE CONFIDENTIAL INFORMATION DISCLOSED HEREUNDER,\nINCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, COURSE OF DEALING, USAGE OF\nTRADE, FITNESS FOR A PARTICULAR PURPOSE OR DESIGN.\n22. Miscellaneous. This Agreement may not be assigned by either Party without the prior written consent of the other and shall be binding\non, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be signed in one or more counterpart originals,\neach of which shall constitute an original document. The Parties agree that this Agreement can be executed via facsimile signatures and be binding.\nThis Agreement represents the entire understanding and agreement of the Parties and supersedes all prior communications, agreements and\nunderstandings between the Parties relating to the Transaction. It is understood that the terms of access by H.I.G. or its Representatives to\nConfidential Information in connection with the Transaction contained in any data room or website shall be superseded by the understandings and\nagreements contained herein.\n5\n23. Nothing in this Agreement shall be binding upon, or restrict the activities of, any of H.I.G.'s portfolio companies, investment professionals\nor affiliated investment funds that do not receive Confidential Information hereunder\nIN WITNESS WHEREOF, the parties have executed and delivered this Non-Disclosure Agreement effective as of the date first above\nwritten.\nCOMVERGE, INC.\n/s/ David Mathieson\nPrinted Name: David Mathieson\nTitle: Executive Vice President & Chief Financial Officer\nH.I.G. MIDDLE MARKET, LLC\n/s/ Joe Zulli\nPrinted Name: Joe Zulli\nTitle: Principal\n6	EX-99.(D)(9) 8 d333885dex99d9.htm EX-99.(D)(9)\nExhibit 99.(d)(9)\nNON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is made as of the 15th day of November, 2011 by and between COMVERGE, Inc., a corporation organized under the\nlaws of Delaware (“COMVERGE”) and H.I .G . Middle Market, LLC, a company located at 1450 Brickell Avenue, 3l Floor, Miami, FL 33131\n(“H.I.G .”). COMVERGE and H.I .G. are individually referred to as a “Party” and collectively referred to as the “Parties”.\nWHEREAS, COMVERGE will provide financial information and strategic operating plans, including drafts of financial projections, budgets\nand due diligence to H.I.G . and its Representatives (as defined below) for the purpose of H.I .G. making a potential investment in COMVERGE (the\n“Transaction”); and\nWHEREAS, COMVERGE will provide confidential and proprietary information and materials to H.I.G . and H.I .G . shall keep such\ninformation confidential.\nNOW THEREFORE, the Parties agree as follows:\n1. Confidential Information Defined. The Parties acknowledge that, in the course of the Transaction, it is anticipated that H.I.G . and its\nRepresentatives will receive certain non-public and confidential information, from or about COMVERGE, including, but not limited to financing\ninformation, operating budgets, strategic business plan documents, product and services offerings, software platform or any other confidential and\nproprietary information relating to the Transaction or COMVERGE. All such financial information and term sheets supplied by COMVERGE or its\nrepresentatives are hereinafter called the “Confidential Information”. The term “Confidential Information” as used herein also includes the\nTransaction itself and any information, work papers, analyses, compilations, projections, studies, documents, terms, conditions, correspondence,\nfacts or other materials derived or produced by COMVERGE or its representatives for each other which contain or otherwise reflect confidential or\nproprietary information provided or developed by COMVERGE in connection with the Transaction, or any other information which H.I.G. knows or\nreasonably ought to know is confidential or proprietary information of COMVERGE. Any Confidential Information supplied in connection with the\nTransaction by COMVERGE prior to the execution of this Agreement shall be considered in the same manner and be subject to the same treatment\nas the Confidential Information made available hereunder after the execution of this Agreement. For the purposes of this Agreement,\n“Representatives” of H.I .G. shall include its employees, officers, directors, financial advisors, staff agents, financing sources, representatives,\nconsultants, advisors or members of any Investment Review or similar committees, but only to the extent such parties receive Confidential\nInformation and excluding, in each case, any portfolio companies.\n2. Exclusions from Definition. The term “Confidential Information” as used herein does not include any data or information which the\nreceiving Party can demonstrate: (a) is already known to the receiving Party on a nonproprietary basis at the time it is disclosed to the receiving\nParty; (b) is or becomes generally known to the public through no wrongful act of the receiving Party or its representatives in violation of this\nAgreement; (c) has been rightfully received by the receiving Party from a third party without restriction on disclosure and without, to H.I .G.’s\nknowledge, a breach of an obligation of confidentiality running directly to the providing Party, if any; (d) has been approved for public release by\nwritten authorization by the originating Party; or (e ) was developed independently by H.I .G. or its Representatives without use of the Confidential\nInformation.\nst\n3. Non-disclosure Obligation. H.J .G . shall keep the Confidential Information confidential and shall not disclose such Confidential Information,\nin whole or in part, to any person other than its Representatives who need to know such Confidential Information in connection with H.I.G .’ S\nevaluation, negotiation and potential consummation of the Transaction, except with the prior written consent of COMVERGE or as otherwise\npermitted hereunder. The Confidential Information shall be used by H.I .G. solely for the purpose of evaluating the Transaction, and shall not be\notherwise used without COMVERGE’s prior written consent. H.I .G. agrees that it may disclose the Confidential Information only to those of its\nRepresentatives who need to know the Confidential Information for the purpose of assisting the Parties in connection with the Transaction. Prior to\ndisseminating any of the Confidential Information to any agent and/or representative permitted herein, H.I.G. shall advise its Representative of the\nconfidential nature of the Confidential Information, and shall require such Representative to agree to maintain the confidentiality of the Confidential\nInformation and to be bound by terms of confidentiality at least as restrictive as the terms of this Agreement. Additionally, except as required by law,\nneither Party shall, and each Party shall direct its representatives to not, disclose to any person (i) the fact that Confidential Information has been\nmade available to H.I.G . and its Representatives, (ii) the fact that the Parties are in discussions regarding the Transaction, or (iii) the terms and\nconditions of such discussions, including the status thereof.\n4. No Export. H.I.G . will not export, directly or indirectly, any Confidential information acquired from COMVERGE pursuant to this\nAgreement, or any product utilizing such Confidential information, to any country, or any company located in any country, for which the U.S .\nGovernment or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining written\nconsent from COMVERGE and the appropriate license.\n5. Standard of Protection. For the purpose of complying with the obligations set forth herein, H.I .G . shall use a reasonable standard of care, no\nless than efforts commensurate with those that it employs for the protection of its own confidential and sensitive information.\n6. Compliance with Legal Process. In the event that H.I .G. or its Representatives is legally requested or required (by oral questions,\ninterrogatories, requests for information or documents, subpoena, civil investigative demand or similar process or by applicable statutes, regulations\nor laws, including but not limited to the rules of any securities trading exchange or securities quotation system, or applicable professional standards\nof the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state boards of accountancy or\nobligations thereunder, to disclose any Confidential Information, H.I.G . shall, to the extent practicable and permitted by law, promptly notify\nCOMVERGE of such request or requirement prior to disclosure so that COMVERGE may seek an appropriate protective order and/or waive\ncompliance with the terms of this Agreement. For the avoidance of doubt, any disclosure made pursuant to this paragraph shall not be in breach of\nthis Agreement.\n7. Ownership; Return of Information. Except as may otherwise set forth in a written agreement between the parties relating to the Transaction,\nall Confidential Information (including tangible copies and computerized or electronic versions thereof and also all Confidential Information\ncontained in all deliverables and work papers), including all intellectual property rights pertaining\n2\nthereto, shall be the property of COMVERGE. No later than ten (10) business days following the receipt of a written request from COMVERGE,\nH.I .G. shall destroy or deliver to COMVERGE all Confidential Information, together with a certificate executed by the agent and/or representative\nor principal of H.I.G . confirming that all such materials in H.I.G .’s possession or control have been delivered to COMVERGE or destroyed, except\nas permitted herein. Notwithstanding the foregoing, H.I .G. and its Representatives may retain (i) any electronic or written copies of Confidential\nInformation as may be stored on its electronic records storage system as a result of automated backup systems or as may be otherwise required by\nlaw, other regulatory requirements, or internal document retention policies, provided that any such Confidential Information remains subject to this\nAgreement; and (ii) a single confidential copy of all Confidential Information which may be retained by H.I.G.’s internal legal counsel for the sole\npurpose of prosecuting or defending any matters which may arise from or relate to this Agreement.\n8. Remedies for Breach. The Parties understand and agree that money damages may not be a sufficient remedy for any breach of this\nAgreement and that the originating Party shall be entitled, without posting bond or other security, to seek injunctive or other equitable relief to\nremedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this\nAgreement, but shall be in addition to all other rights and remedies available at law or in equity, except as provided herein. Except in the event of\ngross negligence or willful misconduct, neither Party shall be liable for any consequential, indirect, punitive or special losses or damages (including,\nbut not limited to, lost profits, lost earnings and loss of production) incurred by the other Party in connection with such Party’s performance or\nfailure to perform any of its obligations under this Agreement, or the breach of any representation, warranty or other obligation hereunder, whether\nexpressed or implied and whether such damages are claimed under breach of warranty, breach of contract, tort, or other theory or cause of action at\nlaw or in equity.\n9. Standstill Period. H .I.G. acknowledges that, in its examination of the Confidential Information, you may have access to material non-public\ninformation concerning COMVERGE. You agree that, for a period of one year following the date of this agreement (the “Standstill Period”), you\nwill not, directly or indirectly, without the prior written consent of the majority of the Board of Directors of COMVERGE, (i) acquire, agree to\nacquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets of COMVERGE , any warrant or\noption to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities, (ii) other\nthan with respect to the Transaction, enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, business combination,\nrecapitalization, restructuring or other extraordinary transaction involving COMVERGE, (iii) make, or in any way participate or engage in, any\nsolicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of COMVERGE;\n(iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended\n(the “Exchange Act”)) with respect to any voting securities of COMVERGE, (v) call, request the calling of, or otherwise act, alone or in concert with\nothers, to seek to control or influence the management or the policies of COMVERGE, (vi) other than with respect to the Transaction, disclose any\nintention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (vii) except as permitted in the Agreement, advise, assist or\nencourage or enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with the foregoing. You\nfurther agree that during the Standstill Period you will not directly or indirectly, without the prior written consent of the Board of Directors of\nCOMVERGE, take\n3\nany action that to your knowledge might require COMVERGE to make a public announcement regarding the possibility of a business combination,\nmerger or other type of transaction described in this paragraph. The provisions of this paragraph shall be inoperative and of no force or effect if any\nother person or group (as defined in Section 13(d)(3) of the Exchange Act) shall have acquired or entered into a definitive agreement (approved by\nthe Board of Directors of COMVERGE) to acquire more than 50% of the outstanding voting securities of COMVERGE or assets of COMVERGE or\nits subsidiaries representing more than 50% of the consolidated earning power of COMVERGE and its subsidiaries. Notwithstanding the foregoing,\nand as described in Section 14, nothing in this section shall preclude H.I.G. from acquiring securities of COMVERGE in the public markets as a\npublic investor in COMVERGE, so long as such transactions do not violate the applicable United States securities laws. Furthermore, for avoidance\nof doubt, both Parties agree that the purpose of the Transaction is for H.I .G. to submit a proposal to COMVERGE regarding a possible transaction.\nAccordingly, until informed in writing by COMVERGE otherwise, H.I .G. may propose potential transactions to COMVERGE without violating any\nof the restrictions set forth above in this section.\n10. Non Solicit. For two years from the date hereof, you will not, directly or indirectly solicit for employment or hire any officer, director, or\nother key employees (to be specified in writing by COMVERGE) of COMVERGE or any of its subsidiaries or divisions with whom you have had\ncontact or who became known to you in connection with your consideration of the Transaction, except that you shall not be precluded from hiring\nany such employee who (i) initiates discussions regarding such employment without any direct or indirect solicitation by you, (ii) responds to any\npublic advertisement or non- directed search, or (iii) was terminated by COMVERGE. For avoidance of doubt, the provisions of this section shall\nnot apply to any portfolio companies of H.I.G . so long as H.I .G. does not share Confidential Information with its portfolio companies.\n11. Term, Termination. This Agreement shall be in effect as of the date first set forth above, and shall continue in full force and effect for a\nperiod of two (2) years after the date hereof.\n12. No Waiver. No failure or delay by COMVERGE in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor\nshall any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder.\n13. Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a written document signed by both\nParties hereto.\n14. Other Transactions. COMVERGE acknowledges and understands that H.I .G. and its Representatives may or in the future evaluate, invest\nin or do business with competitors or potential competitors of COMVERGE. Neither the execution of this Agreement nor receipt of Confidential\nInformation shall in any way restrict or preclude such activities. Moreover, notwithstanding any provision of this Agreement to the contrary, this\nAgreement shall not limit, restrict or impair H.I .G.’s ability or the ability of is Representatives to engage in transactions with respect to securities,\nbank debt, instruments and interests of COMVERGE or any other person or entity, so long as such transactions do not violate applicable United\nStates securities laws.\n15. Applicability to Affiliated Parties. Any information disclosed to H.I .G. by any of COMVERGE’s affiliates or by any company, person or\nother entity participating with COMVERGE,\n4\nin any consortium, partnership, joint venture or similar business combination in direct connection with the Transaction, which would otherwise\nconstitute Confidential Information hereunder if disclosed by COMVERGE, shall be deemed to constitute Confidential Information under this\nAgreement. For purposes of this agreement, an “affiliate” means an entity that directly or indirectly through one or more intermediaries, controls, is\ncontrolled by, or is under common control with, such entity.\n16. Attorneys’ Fees. Should COMVERGE or any beneficiary of this Agreement find it necessary to employ legal counsel and bring an\naction at law or in equity to enforce any of the terms or conditions of this Agreement the non-prevailing party (as determined in a final,\nnonappealable judicial opinion) shall reimburse the prevailing Party or any such beneficiary for all reasonable attorneys’ fees and costs incurred\npursuing such proceeding.\n17. Governing Law, Jurisdiction, Venue. This Agreement shall be governed by and construed, interpreted and enforced in accordance with\nthe laws of the State of Georgia, without giving effect to its principles or rules regarding conflicts of laws.\n18. Party Status. This Agreement is neither intended to create, nor shall it be construed as creating, (i) a joint venture, partnership or other\nform of business association between the Parties, (ii) an obligation to buy or sell products using or incorporating the Proprietary Information, (iii) an\nimplied or express license grant from either Party to the other, (iv) any obligation to continue discussions or negotiations with respect to any\npotential agreement between the Parties or (v) an agreement to enter into any agreement.\n19. Severability. In the event any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any\nrespect, the remaining provisions of this Agreement shall remain in full force and effect to the maximum extent possible; provided however, that the\nintention and essence of this Agreement may still be accomplished and satisfied.\n20. Disclosure. H .I.G. will notify COMVERGE in writing promptly upon the occurrence of any unauthorized release of Proprietary\nInformation or breach of this Agreement of which it is aware.\n21. Warranty Matters. THE PARTIES HERETO AGREE THAT NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARE\nGIVEN BY THE ORIGINATING PARTY WITH RESPECT TO THE CONFIDENTIAL INFORMATION DISCLOSED HEREUNDER,\nINCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, COURSE OF DEALING, USAGE OF\nTRADE, FITNESS FOR A PARTICULAR PURPOSE OR DESIGN.\n22. Miscellaneous. This Agreement may not be assigned by either Party without the prior written consent of the other and shall be binding\non, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be signed in one or more counterpart originals,\neach of which shall constitute an original document. The Parties agree that this Agreement can be executed via facsimile signatures and be binding.\nThis Agreement represents the entire understanding and agreement of the Parties and supersedes all prior communications, agreements and\nunderstandings between the Parties relating to the Transaction. It is understood that the terms of access by H.I .G. or its Representatives to\nConfidential Information in connection with the Transaction contained in any data room or website shall be superseded by the understandings and\nagreements contained herein.\n5\n23. Nothing in this Agreement shall be binding upon, or restrict the activities of, any of H.I .G.’s portfolio companies, investment professionals\nor affiliated investment funds that do not receive Confidential Information hereunder\nIN WITNESS WHEREOF, the parties have executed and delivered this Non-Disclosure Agreement effective as of the date first above\nwritten.\nCOMVERGE, INC.\n/s/ David Mathieson\nPrinted Name: David Mathieson\nTitle: Executive Vice President & Chief Financial Officer\nH.I .G . MIDDLE MARKET, LLC\n/s/ Joe Zulli\nPrinted Name: Joe Zulli\nTitle: Principal\n6
deeb33574e53e94f86a884caaa952350.pdf	effective_date jurisdiction party	EX-10 .19 3 l98998aexv10w19.txt EX-10.19 EMPLOYMENT AGREEMENT AND UNDERTAKING Exhibit 10.19 EMPLOYMENT AGREEMENT AND\nUNDERTAKING OF CONFIDENTIALITY In consideration of their mutual promises and agreements and subject to the terms and conditions set forth below in this\nEmployment Agreement and Undertaking of Confidentiality ("Agreement"), National Processing Company ("NPC") and Mark Pyke ("Employee") hereby agree as\nfollows: 1. NPC agrees to employ Employee in the position of Vice President, Finance, Bankcard Division and at the salary of One Hundred Five Thousand and\nNo/100 Dollars ($105,000 .00), and to make available to Employee those benefits provided by NPC to employees with similar responsibilities, all as amended from\ntime to time, upon the terms and conditions set forth below. As additional consideration for the mutual promises and agreements set forth herein, NPC agrees to\npay Employee the sum of Fifty Thousand Dollars and No/100 Dollars ($50,000 .00), contemporaneous with the execution of this Agreement. 2. NPC agrees that\nEmployee shall be eligible to participate in NPC's Short Term Incentive Plan with a guaranteed Bonus of Twenty-Five Thousand and No/100 ($25,000 .00)\npayable in March, 1997 . 3. Employee agrees to use his best efforts to perform the duties assigned to him by NPC. 4. Employee acknowledges and agrees that in\nthe performance of his duties of employment he may be brought into frequent contact with clients and potential clients of NPC either in person, through the mails,\nby telephone or by other electronic means. Employee also acknowledges and agrees that trade secrets and confidential information of NPC, more fully described\nin paragraph 14 of this Agreement, gained by Employee during his employment with NPC, have been developed by NPC through substantial expenditures of\ntime, effort and financial resources and constitute valuable and unique property of NPC. Employee further understands, acknowledges and agrees that the\nforegoing makes it necessary for the protection of NPC's business that Employee not compete with NPC during the term of his employment and for a reasonable\nperiod thereafter. 5 . Employee agrees that he will not, during his employment, compete with NPC within the continental United States. Employee agrees that, in\naccordance with this restriction, but without limiting its terms, he will not during the term of his employment: (i) enter into or engage in any business that competes\nwith NPC's Business; or (ii) solicit any customers, clients, business, patronage or orders for, or sell any services in competition with, or for any business that\ncompetes with NPC's Business; or (iii) divert, entice, or take away any customers, clients, business, patronage or orders of NPC, or attempt to do so; or (iv)\npromote or assist, financially or otherwise, any person, firm, association or corporation engaged in any business that competes with NPC's Business. 6.\nEmployee agrees that, within the continental United States, he will not, for a period of two (2) years following the termination of his employment, enter into or\nengage in any business that competes with NPC's Business. 7 . Employee agrees that, within the continental United States, he will not, for a period of two (2)\nyears following the termination of his employment, solicit customers, clients, business, patronage, or orders for, or sell any services in competition with NPC's\nBusiness. 8. Employee agrees that, within the continental United States, he will not, for a period of two (2) years following the termination of his employment,\ndivert, entice, or otherwise take away any customers, clients, business or orders of NPC or attempt to do so. 9. Employee agrees that, within the continental\nUnited States, he will not, for a period of two (2) years following the termination of his employment, promote or assist financially or otherwise, any person, firm,\nassociation, partnership, corporation, or other entity engaged in any business that competes with NPC's Business. 10. For the purposes of paragraphs 5 through\n9, inclusive, Employee understands and agrees that he will be competing if he engages in any or all of the activities set forth therein directly as an individual on\nhis own account, or indirectly as a partner, joint venturer, employee, agent, salesman, consultant, officer and/or director of any firm or corporation, or as a\nstockholder of any corporation in which Employee or Employee's spouse, child or parent owns, directly or indirectly, individually or in the aggregate, more than\nten percent (10%) of the outstanding stock. 11. For the purposes of paragraphs 5 through 9, inclusive, and 15, NPC's Business is defined as the acquisition and\nprocessing of credit and debit card transactions accepted by merchants at the point of sale. 12 . If it shall be judicially determined that Employee has violated any\nof his obligations under paragraphs 5 through 9, inclusive, then the period applicable to the obligation which Employee shall have been determined to have\nviolated shall automatically be extended by a period of time equal in length to the period during which said violation(s) occurred. 13. Employee agrees that he will\nnot directly or indirectly at any time solicit or induce or attempt to solicit or induce any employee of NPC to terminate his employment, representation or other\nassociation with NPC. 14. Employee will keep in strict confidence, and will not, directly or indirectly, at any time during or after his employment, disclose, furnish,\ndisseminate, make available or use (except in the course of performing his duties of employment hereunder) any trade secrets or confidential business and\ntechnical information of NPC or its customers or clients, without limitation as to when or how Employee may have acquired such information. Such confidential\ninformation shall include, the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, pattern, compilation,\nprogram, device, method, technique or improvement, or any business information or plans, financial information, or listing of names, addresses or telephone\nnumbers, including without limitation, information relating to any of NPC's customers or prospective customers, NPC's customer lists, contract information\nincluding terms, pricing and services provided, information received as a result of customer contacts, NPC's products and processing capabilities, methods of\noperation, business plans, financials or strategy, and agreements to which NPC may be a party. Employee specifically acknowledges that such information,\nwhether reduced to writing or maintained in the mind or memory of Employee and whether compiled by NPC and/or Employee, derive independent economic\nvalue from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or use, that reasonable\nefforts have been put forth by NPC to maintain the secrecy of such information, that such information is the sole property of NPC and that any retention and use\nof such information during or after his employment with NPC (except in the course of performing his duties of employment hereunder) shall constitute a\nmisappropriation of NPC's trade secrets. Employee further agrees that, at the time of termination of his employment, he will return to NPC, in good condition, all\nproperty of NPC, including, without limitation, the information identified above. In the event that said items are not so returned, NPC shall have the right to charge\nEmployee for all reasonable damages, costs, attorney's fees and other expenses incurred in searching for, taking, removing, and/or recovering such property. 15 .\nDuring his employment and for two (2) years thereafter, Employee agrees to communicate the contents of this Agreement to any person, firm, association, or\ncorporation that he intends to be employed by, associated with, or represent, that is engaged in a business that is competitive to NPC's Business. 16. Employee\nacknowledges and agrees that the remedy at law available to NPC for breach of any of Employee's obligations under this Agreement would be inadequate, and\nagrees and consents that in addition to any other rights or remedies that NPC may have at law or in equity, temporary and permanent injunctive relief may be\ngranted in any proceeding that may be brought to enforce any provision contained in paragraphs 5 through 9, inclusive, of this Agreement, without the necessity\nof proof of actual damage. 17. Employee acknowledges that his obligations under this Agreement are reasonable in the context of the nature of NPC's business\nand the competitive injuries likely to be sustained by NPC if Employee violated such obligations. Employee further acknowledges that this Agreement is made in\nconsideration of, and is adequately supported by the obligations undertaken by NPC in paragraph 1 above, which Employee acknowledges constitutes new\nand/or good, valuable and sufficient consideration. Employee acknowledges that his employment relationship with NPC is and following the execution of this\nAgreement shall continue to be "at will," and may be terminated at any time and for any reason, or for no reason, by NPC or by Employee. However, if NPC\nterminates Employee's employment for reasons other than cause and/or violation of this Agreement, then NPC shall pay Employee an amount equal to two (2)\ntimes Employee's annual base salary at the time of termination, with said amount being paid to Employee over a twenty-four (24) month period on the same\nperiodic basis as NPC's regular payroll, so long as Employee does not violate any part of this Agreement. For the purposes of this Agreement, "Cause" is defined\nas fraud, misconduct and/or violation of NPC's employment policies. 18 . The failure of NPC to enforce any provision of this Agreement shall not be construed to\nbe a waiver of such provision or of the right of NPC thereafter to enforce each and every provision. 19. This Agreement supersedes all previous agreements,\nwritten or oral, between Employee and NPC. No modification, waiver, amendment or addition to any of the terms of this Agreement shall be effective except as\nset forth in a writing signed by Employee and NPC. 20. All provisions, terms, conditions, paragraphs, agreements and covenants ("Provisions") contained in this\nAgreement are severable and, in the event any one of them shall be held to be invalid by any competent court, this Agreement shall be interpreted as if such\nProvision was not contained herein, and such determination shall not otherwise affect the validity of any other Provision. The within provisions shall be applicable\nirrespective of whether such termination shall be by NPC or by the Employee, whether voluntary or involuntary, whether for cause or without cause, and whether\nby reason or the expiration of this or any other written or oral agreement or arrangement (or any extensions thereof) with NPC. 21. While the restrictions set forth\nherein are considered by the parties to be reasonable in all circumstances, it is recognized that restrictions of this nature may fail for reasons unforeseen, and\naccordingly it is hereby agreed and declared that if any of such restrictions shall be adjudged to be void as going beyond what is reasonable in all the\ncircumstances, but would be valid if the geographical area or temporal extent were reduced in part, or the range of activities or area dealt with thereby reduced in\nscope, the said restriction shall apply with such modification as may be necessary to make it valid and effective. 22 . This Agreement shall take effect upon\nexecution by Employee and NPC and shall be governed by, and construed in accordance with, the internal, substantive laws of the Commonwealth of Kentucky.\nEmployee agrees that the state and federal courts located in the Commonwealth of Kentucky, shall have jurisdiction in any action, suit or proceeding against\nEmployee based on or arising out of this Agreement and Employee hereby: (i) submits to the personal jurisdiction of such courts; (ii) consents to service of\nprocess in connection with any action, suit or proceeding against Employee; and (iii) waives any other requirement (whether imposed by statute, rule of court or\notherwise) with respect to personal jurisdiction, venue or service of process. Employee represents that, prior to signing this Agreement, he has read, fully\nunderstands and voluntarily agrees to the terms and conditions as stated above, that he was not coerced to sign this Agreement, that he was not under duress at\nthe time he signed this Agreement and that, prior to signing this Agreement, he had adequate time to consider entering into this Agreement, including without\nlimitation, the opportunity to discuss the terms and conditions of this Agreement, as well as its legal consequences, with an attorney of his choice. IN WITNESS\nWHEREOF, the Employee, having read and fully understood each of the foregoing provisions, has executed this Agreement as of this 4th day of March, 1996.\nEMPLOYEE: MARK PYKE /s/ Mark D. Pyke ---------------- (Signature) NATIONAL PROCESSING COMPANY By: /s/ Kurt Knipp -------------- (Signature) Title: EVP\n-- - Dated this 4th day of March, 1996	EX-10.19 3 |98998aexv10w19.txt EX-10.19 EMPLOYMENT AGREEMENT AND UNDERTAKING Exhibit 10.19 EMPLOYMENT AGREEMENT AND\nUN DE RTAKING OF CONFIDE NTIALITY In consideration of their mutual promises and agreements and subjectto the terms and conditions setforth below in this\nEmploymentAgreement and Undertaking ofConfidentiality ("Agreement"), National Processing Company ("N PC ") and Mark Pyke ("E mployee") hereby agree as\nfollows: 1. NPC agrees to employ Employee in the position ofVice President, Finance, Bankcard Division and atthe salary ofOne Hundred Five Thousand and\nNo/100 Dollars ($105,000.00), and to make available to Employee those benefits provided by NPC to employees with similar responsibilities, all as amended from\ntime to time, upon the terms and conditions set forth below. As additional consideration forthe mutual promises and agreements set forth herein, NPC agrees to\npay Employee the sum of Fifty Thousand Dollars and No/100 Dollars ($50,000.00), contemporaneous with the execution of this Agreement. 2. NPC agrees that\nEmployee shall be eligible to participate in NPC's ShortTerm Incentive Plan with a guaranteed Bonus ofTwenty-Five Thousand and No/100 ($25,000.00)\npayable in March, 1997. 3. Employee agrees to use his best efforts to perform the duties assigned to him by NPC. 4. Employee acknowledges and agrees thatin\nthe performance of his duties ofemployment he may be brought into frequent contactwith clients and potential clients of N PC either in person, through the mails,\nby telephone or by other electronic means. Employee also acknowledges and agrees thattrade secrets and confidential information of N PC, more fully described\nin paragraph 14 ofthis Agreement, gained by Employee during his employmentwith NPC, have been developed by N PC through substantial expenditures of\ntime, effort and financial resources and constitute valuable and unique property of NPC. Employee further understands, acknowledges and agrees that the\nforegoing makes it necessary for the protection of NPC '5 business that Employee not compete with N PC during the term of his employment and for a reasonable\nperiod thereafter. 5. Employee agrees that he will not, during his employment, compete with NPC within the continental United States. Employee agrees that, in\naccordance with this restriction, butwithout limiting its terms, he will notduring the term of his employment: (i) enter into or engage in any business that competes\nwith N PC '5 Business; or (ii) solicit any customers, clients, business, patronage or orders for, or sell any services in competition with, or for any business that\ncompetes with N PC's Business; or (iii) divert, entice, or take away any customers, clients, business, patronage or orders of NPC, or attempt to do so; or (iv)\npromote or assist, financially or othenNise, any person, firm, association or corporation engaged in any business thatcompetes with NPC '5 Business. 6.\nEmployee agrees that, within the continental United States, he will not, for a period of two (2) years following the termination of his employment, enter into or\nengage in any business that competes with N PC '5 Business. 7. Employee agrees that, within the continental United States, he will not, for a period of two (2)\nyears following the termination of his employment, solicitcustomers, clients, business, patronage, or orders for, or sell any services in competition with N PC's\nBusiness. 8. Employee agrees that, within the continental United States, he will not, for a period of two (2) years following the termination of his employment,\ndivert, entice, or othenNise take away any customers, clients, business or orders of NPC or attempt to do so. 9. Employee agrees that, within the continental\nUnited States, he will not, for a period of two (2) years following the termination of his employment, promote or assist financially or othenNise, any person, firm,\nassociation, partnership, corporation, or other entity engaged in any business thatcompetes with NPC's Business. 10. Forthe purposes ofparagraphs 5 through\n9, inclusive, Employee understands and agrees that he will be competing if he engages in any or all ofthe activities setforth therein directly as an individual on\nhis own account, or indirectly as a partner, joint venturer, employee, agent, salesman, consultant, of‘ficer and/or director of any firm or corporation, or as a\nstockholder of any corporation in which Employee or Employee's spouse, child or parent owns, directly or indirectly, individually or in the aggregate, more than\nten percent (10%) ofthe outstanding stock. 11. Forthe purposes ofparagraphs 5 through 9, inclusive, and 15, NPC's Business is defined as the acquisition and\nprocessing ofcredit and debit card transactions accepted by merchants at the pointofsale. 12. If itshall be judicially determined that Employee has violated any\nof his obligations under paragraphs 5 through 9, inclusive, then the period applicable to the obligation which Employee shall have been determined to have\nviolated shall automatically be extended by a period of time equal in length to the period during which said violation(s) occurred. 13. Employee agrees that he will\nnotdirectjy or indirectly at any time solicitor induce or attempt to solicitor induce any employee of NPC to terminate his employment, representation or other\nassociation with N PC. 14. Employee will keep in strictconfidence, and will not, directly or indirectjy, at any time during or after his employment, disclose, furnish,\ndisseminate, make available or use (except in the course of performing his duties ofemployment hereunder) any trade secrets or confidential business and\ntechnical information of NPC or its customers or clients, without limitation as to when or how Employee may have acquired such information. Such confidential\ninformation shall include, the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, pattern, compilation,\nprogram, device, method, technique or improvement, or any business information or plans, financial information, or listing of names, addresses or telephone\nnumbers, including without limitation, information relating to any of N PC '5 customers or prospective customers, NPC's customer lists, contract information\nincluding terms, pricing and sen/ices provided, information received as a resultofcustomer contacts, NPC '5 products and processing capabilities, methods of\noperation, business plans, financials or strategy, and agreements to which N PC may be a party. Employee specifically acknowledges that such information,\nwhether reduced to writing or maintained in the mind or memory of Employee and whether compiled by NPC and/or Employee, derive independent economic\nvalue from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or use, that reasonable\nefforts have been putforth by N PC to maintain the secrecy ofsuch information, that such information is the sole property of N PC and that any retention and use\nof such information during or after his employmentwith N PC (except in the course of performing his duties ofemployment hereunder) shall constitute a\nmisappropriation of N PC's trade secrets. Employee further agrees that, at the time oftermination of his employment, he will return to NPC, in good condition, all\nproperty of NPC, including, without limitation, the information identified above. In the event that said items are notso returned, N PC shall have the rightto charge\nEmployee for all reasonable damages, costs, attorney's fees and other expenses incurred in searching for, taking, removing, and/or recovering such property. 15.\nDuring his employment and for two (2) years thereafter, Employee agrees to communicate the contents ofthis Agreementto any person, firm, association, or\ncorporation that he intends to be employed by, associated with, or represent, that is engaged in a business that is competitive to N PC '5 Business. 16. Employee\nacknowledges and agrees thatthe remedy at law available to N PC for breach of any of Employee's obligations under this Agreement would be inadequate, and\nagrees and consents that in addition to any other rights or remedies that NPC may have at law or in equity, temporary and permanent injunctive relief may be\ngranted in any proceeding that may be brought to enforce any provision contained in paragraphs 5 through 9, inclusive, ofthis Agreement, without the necessity\nof proofof actual damage. 17. Employee acknowledges that his obligations under this Agreement are reasonable in the context of the nature of N PC's business\nand the competitive injuries likely to be sustained by NPC if Employee violated such obligations. Employee further acknowledges thatthis Agreement is made in\nconsideration of, and is adequately supported by the obligations undertaken by NPC in paragraph 1 above, which Employee acknowledges constitutes new\nand/or good, valuable and sufficient consideration. Employee acknowledges that his employment relationship with N PC is and following the execution of this\nAgreementshall continue to be "atwill," and may be terminated at any time and for any reason, or for no reason, by N PC or by Employee. However, if N PC\nterminates Employee's employment for reasons other than cause and/or violation ofthis Agreement, then N PC shall pay Employee an amountequal to two (2)\ntimes Employee's annual base salary atthe time of termination, with said amount being paid to Employee over a twenty-four (24) month period on the same\nperiodic basis as N PC's regular payroll, so long as Employee does notviolate any part of this Agreement. For the purposes of this Agreement, "Cause" is defined\nas fraud, misconduct and/or violation of N PC's employment policies. 18. The failure of N PC to enforce any provision of this Agreement shall not be construed to\nbe a waiver ofsuch provision or of the rightof N PC thereafter to enforce each and every provision. 19. This Agreement supersedes all previous agreements,\nwritten or oral, between Employee and NPC. No modification, waiver, amendmentor addition to any ofthe terms ofthis Agreement shall be effective except as\nsetforth in a writing signed by Employee and N PC. 20. All provisions, terms, conditions, paragraphs, agreements and covenants ("Provisions") contained in this\nAgreement are severable and, in the event any one of them shall be held to be invalid by any competent court, this Agreementshall be interpreted as if such\nProvision was notcontained herein, and such determination shall nototherwise affect the validity of any other Provision. The within provisions shall be applicable\nirrespective ofwhether such termination shall be by NPC or by the Employee, whether voluntary or involuntary, whether for cause or without cause, and whether\nby reason or the expiration ofthis or any other written or oral agreementor arrangement (or any extensions thereof) with NPC. 21. While the restrictions set forth\nherein are considered by the parties to be reasonable in all circumstances, it is recognized that restrictions of this nature may fail for reasons unforeseen, and\naccordingly it is hereby agreed and declared that if any of such restrictions shall be adjudged to be void as going beyond what is reasonable in all the\ncircumstances, butwould be valid if the geographical area or temporal extent were reduced in part, or the range of activities or area dealtwith thereby reduced in\nscope, the said restriction shall apply with such modification as may be necessary to make it valid and effective. 22. This Agreementshall take effect upon\nexecution by Employee and N PC and shall be governed by, and construed in accordance with, the internal, substantive laws ofthe Commonwealth of Kentucky.\nEmployee agrees thatthe state and federal courts located in the Commonwealth of Kentucky, shall have jurisdiction in any action, suit or proceeding against\nEmployee based on or arising outof this Agreement and Employee hereby: (i) submits to the personal jurisdiction ofsuch courts; (ii) consents to service of\nprocess in connection with any action, suitor proceeding against Employee; and (iii) waives any other requirement (whether imposed by statute, rule of court or\nothenNise) with respectto personal jurisdiction, venue or sen/ice of process. Employee represents that, prior to signing this Agreement, he has read, fully\nunderstands and voluntarily agrees to the terms and conditions as stated above, that he was notcoerced to sign this Agreement, that he was not under duress at\nthe time he signed this Agreement and that, prior to signing this Agreement, he had adequate time to consider entering into this Agreement, including without\nlimitation, the opportunity to discuss the terms and conditions of this Agreement, as well as its legal consequences, with an attorney of his choice. IN WITNESS\nWHE REOF, the Employee, having read and fully understood each of the foregoing provisions, has executed this Agreement as of this 4th day of March, 1996.\nEMPLOYEE:MARKPYKE/s/Mark D. Pyke ---------------- (Signature)NATIONAL PROCESSING COMPANY By: /s/Kurt Knipp -------------- (Signature)Tit|e:EVP\nDated this 4th day of March, 1996	EX-10.19 198998aexv10w19.tx EX-10.19 EMPLOYMENT AGREEMENT AND UNDERTAKING E xhibit 10.19 EMPLOYMENT AGREEMENT AND\nUNDERTAKING OF ONFIDENTIALITY In consideration of their mutua promises and agreements and subject to the terms and conditions set forth below in this\nmployment Agreement and Undertaking of Confidentiality ("Agreement"), National Processing Company ("NPC" and Mark yke "Employee") hereby agree as\nfollows: 1. NPC agrees to employ mployee in the position of Vice President, Finance, Bankcard Division and at the salary of One Hundred Five Thousand and\nNo/100 Dollars ($105,000.00), and to make available to Employee those benefits provided by NPC to employees with similar responsibilities, all as amended from\ntime to time, upon the terms and conditions set forth below. As additional consideration for the mutual promises and agreements set forth herein, NPC agrees to\npay mployee the sum of Fifty Thousand Dollars and No/100 Dollars ($50,000.00), contemporaneous with the execution of this Agreement. 2. NPC agrees that\nEmployee shall be eligible to participate in NPC's Short Term Incentive Plan with a guaranteed Bonus of Twenty-Fiv Thousand and N0/100 ($25,000.00)\npayable in March, 1997. 3. mployee agrees to use his best efforts to perform the duties assigned to him by NPC. 4. E mployee acknowledges and agrees that in\nthe performance of his duties of employment he may be brought into frequent contact with clients and potential clients of NPC either in person, through the mails,\nby telephone or by other electronic means. Employee also acknowledges and agrees that trade secrets and confidential information of NPC, more fully described\nin paragraph 14 of this Agreement, gained by Employee during his employment with NPC, have been developed by NPC through substantial expenditures of\ntime, effort and financial resources and constitute valuable and unique property of NPC. mployee further understands, acknowledges and agrees that the\nforegoing makes it necessary for the protection of NPC's business that E mployee not compete with NPC during the term of his employment and for a reasonable\nperiod thereafter. 5. E mployee agrees that he will not, during his employment, compete with NPC within the continental United States. E mployee agrees that,\nin\naccordance with this restriction, but without limiting its terms, he will not during the term of his employment: (i) enter into or engage in any business that competes\nwith NPC's Business; or (ii) solicit any customers, clients, business, patronage or orders for, or sell any services in competition with, or for any business that\ncompetes with NPC's Business; or (iii) divert, entice, or take away any customers, clients, business, patronage or orders of NPC, or attempt to do so; or (iv)\npromote or assist financially or otherwise, any person, firm, association or corporation engaged in any business that competes with NPC'S Business. 6.\nE mployee agrees that, within the continental United States, he wil not, for a period of two (2) years following the termination of his employment, enter into or\nengage in any business that competes with NPC's Business. 7. mployee agrees that, within the continental nited States, he will not, for a period of two (2)\nyears following the termination of his employment, solicit customers, clients, business, patronage, or orders for, or sell any services in competition with NPC's\nBusiness. 8. Employee agrees that within the continental United States, he will not, for a period of two (2) years following the termination of his employment,\ndivert, entice, or otherwise take away any customers, clients, business or orders of NPC or attempt to do so. 9. mployee agrees that, within the continental\nUnited States, he will not, for a period of two (2) years following the termination of his employment, promote or assist financially or otherwise, any person, firm,\nassociation, partnership, corporation, or other entity engaged in any business that competes with NPC's Business. 10 For the purposes of paragraphs 5 through\n9, inclusive, E mployee understands and agrees that he will be competing if he engages in any or all of the activities set forth therein directly as an individual on\nhis own account, or indirectly as a partner, joint venturer, employee, agent, salesman, consultant, officer and/or director of any firm or corporation, or as\na\nstockholder of any corporation in which Employee or Employee's spouse, child or parent owns, directly or indirectly, individually or in the aggregate, more than\nten percent (10%) of the outstanding stock. 11. F or the purposes of paragraphs 5 through 9, inclusive, and 15, Business is defined as the acquisition and\nprocessing of credit and debit card transactions accepted by merchants at the point of sale 12 if it shall be judicially determined that Employee has violated any\nof\nhis obligations under paragraphs 5 through 9, inclusive, then the period applicable to the obligation which Employee shal have been determined to have\nviolated shal automatically be extended by a period of time equal in length to the period during which said violation(s) occurred. 13. mployee agrees that he will\nnot directly or indirectly at any time solicit or induce or attempt to solicit or induce any employee of NPC to terminate his employment, representation or other\nassociation with NPC. 14. Employee will keep in strict confidence, and will not, directly or indirectly, at any time during or after his employment, disclose, furnish\ndisseminate, make available or use (except in the course of performing his duties of employment hereunder) any trade secrets or confidential business and\ntechnical information of NPC or its customers or clients, without limitation as to when or how mployee may have acquired such information. Such confidential\ninformation shall include, the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, pattern, compilation,\nprogram, device, method technique or improvement, or any business information or plans, financial information, or listing of names, addresses or telephone\nnumbers, including without limitation, information relating to any of NPC's customers or prospective customers, NPC's customer lists, contract information\nincluding terms, pricing and services provided, information received as a result of customer contacts, NPC's products and processing capabilities, methods\nof\noperation, business plans, financials or strategy, and agreements to which NPC may be a party. Employee specifically acknowledges that such information,\nwhether reduced to writing or maintained in the mind or memory of Employee and whether compiled by NPC and/or mployee, derive independent economic\nvalue from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or use, that reasonable\nefforts have been put forth by NPC to maintain the secrecy of such information, that such information is the sole property of NPC and that any retention and use\nof\nsuch information during or after his employment with NPC (except in the course of performing his duties of employment hereunder) shall constitute a\nmisappropriation of NPC's trade secrets. Employee further agrees that, at the time of termination of his employment, he will return to NPC, in good condition, all\nproperty of NPC, including, without limitation, the information identified above. In the event that said items are not so returned, NPC shall have the right to charge\nE mployee for all reasonable damages, costs, attorney's fees and other expenses incurred in searching for, taking, removing, and/or recovering such property. 15\nDuring his employment and for two (2) years thereafter, Employee agrees to communicate the contents of this Agreement to any person, firm, association, or\ncorporation that he intends to be employed by, associated with, or represent, that is engaged in a business that is competitive to NPC's Business. 16. Employee\nacknowledges and agrees that the remedy at law available to NPC for breach of any of Employee's obligations under this Agreement would be inadequate,\nand\nagrees and consents that in addition to any other rights or remedies that NPC may have at law or in equity, temporary and permanent injunctive relief may be\ngranted in any proceeding that may be brought to enforce any provision contained in paragraphs 5 through 9, inclusive, of this Agreement, without the necessity\nof proof of actual damage 17. Employee acknowledges that his obligations under this Agreement are reasonable in the context of the nature of NPC's business\nand the competitive injuries likely to be sustained by NPC if E mployee violated such obligations. Employee further acknowledges that this Agreement is made in\nconsideration of, and is adequately supported by the obligations undertaken by NPC in paragraph 1 above, which Employee acknowledges constitutes new\nand/or good, valuable and sufficient consideration. mployee acknowledges that his employment relationship with NPC is and following the execution of this\nAgreement shall continue to be "at will," and may be terminated at any time and for any reason, or for no reason, by NPC or by Employee. However, if NPC\nterminates Employee's employment for reasons other than cause and/or violation of this Agreement, then NPC shall pay E mployee an amount equal to two (2)\ntimes mployee's annual base salary at the time of termination, with said amount being paid to Employee over a twenty-four (24) month period on the same\nperiodic basis as NPC's regular payroll, so long as Employee does not violate any part of this Agreement. For the purposes of this Agreement, "Cause" is defined\nas fraud, misconduct and/or violation of NPC's employment policies 18. The failure of NPC to enforce any provision of this Agreement shall not be construed\nto\nbe a waiver of such provision or of the right of NPC thereafter to enforce each and every provision. 19 This Agreement supersedes all previous agreements,\nwritten or oral, between Employee and NPC. No modification, waiver, amendment or addition to any of the terms of this Agreement shall be effective except as\nset forth in a writing signed by mployee and NPC. 20 All provisions, terms, conditions, paragraphs, agreements and covenants ("Provisions") contained in this\nAgreement are severable and, in the event any one of them shall be held to be invalid by any competent court, this Agreement shall be interpreted as if such\nProvision was not contained herein, and such determination shall not otherwise affect the validity of any other rovision. The within provisions shall be applicable\nirrespective of whether such termination shall be by NPC or by the Employee, whether voluntary or involuntary, whether for cause or without cause, and whether\nby reason or the expiration of this or any other written or oral agreement or arrangement (or any extensions thereof) with NPC. 21 While the restrictions\nset\nforth\nherein are considered by the parties to be reasonable in all circumstances, it is recognized that restrictions of this nature may fai for reasons unforeseen, and\naccordingly it is hereby agreed and declared that if any of such restrictions shall be adjudged to be void as going beyond what is reasonable in all the\ncircumstances, but would be valid if the geographical area or temporal extent were reduced in part, or the range of activities or area dealt with thereby reduced\nin\nscope, the said restriction shall apply with such modification as may be necessary to make it valid and effective. 22. This Agreement shall take effect upon\nexecution by Employee and NPC and shall be governed by, and construed in accordance with, the internal, substantive laws of the Commonwealth of Kentucky.\nEmployee agrees that the state and federal courts located in the Commonwealth of Kentucky, shal have jurisdiction in any action, suit or proceeding against\nEmployee based on or arising out of this Agreement and Employee hereby: (i) submits to the personal jurisdiction of such courts; (ii) consents to service\nof\nprocess in connection with any action, suit or proceeding against Employee; and (iii) waives any other requirement (whether imposed by statute, rule of court or\notherwise) with respect to persona jurisdiction, venue or service of process. E Employee represents that, prior to signing this Agreement, he has read, fully\nunderstands and voluntarily agrees to the terms and conditions as stated above, that he was not coerced to sign this Agreement, that he was not under duress\nat\nthe time he signed this Agreement and that, prior to signing this Agreement, he had adequate time to consider entering into this Agreement, including without\nlimitation, the opportunity to discuss the terms and conditions of this Agreement, as well as its legal consequences, with an attorney of his choice. IN WITNESS\nWHEREOF, the Employee, having read and fully understood each of the foregoing provisions, has executed this Agreement as of this 4th day of March, 1996.\nEMPLOYEE: MARK PYKE /s/ Mark D. P yke\n(Signature) NATIONAL PROCESSING COMPANY By: /s/ Kurt Knipp\n(Signature) Title EVP\nDated this 4th day of March, 1996	EX-10 .19 3 l98998aexv10w19.txt EX-10.19 EMPLOYMENT AGREEMENT AND UNDERTAKING Exhibit 10.19 EMPLOYMENT AGREEMENT AND\nUNDERTAKING OF CONFIDENTIALITY In consideration of their mutual promises and agreements and subject to the terms and conditions set forth below in this\nEmployment Agreement and Undertaking of Confidentiality ("Agreement"), National Processing Company ("NPC") and Mark Pyke ("Employee") hereby agree as\nfollows: 1. NPC agrees to employ Employee in the position of Vice President, Finance, Bankcard Division and at the salary of One Hundred Five Thousand and\nNo/100 Dollars ($105,000 .00), and to make available to Employee those benefits provided by NPC to employees with similar responsibilities, all as amended from\ntime to time, upon the terms and conditions set forth below. As additional consideration for the mutual promises and agreements set forth herein, NPC agrees to\npay Employee the sum of Fifty Thousand Dollars and No/100 Dollars ($50,000 .00), contemporaneous with the execution of this Agreement. 2. NPC agrees that\nEmployee shall be eligible to participate in NPC's Short Term Incentive Plan with a guaranteed Bonus of Twenty-Five Thousand and No/100 ($25,000 .00)\npayable in March, 1997 . 3. Employee agrees to use his best efforts to perform the duties assigned to him by NPC. 4. Employee acknowledges and agrees that in\nthe performance of his duties of employment he may be brought into frequent contact with clients and potential clients of NPC either in person, through the mails,\nby telephone or by other electronic means. Employee also acknowledges and agrees that trade secrets and confidential information of NPC, more fully described\nin paragraph 14 of this Agreement, gained by Employee during his employment with NPC, have been developed by NPC through substantial expenditures of\ntime, effort and financial resources and constitute valuable and unique property of NPC. Employee further understands, acknowledges and agrees that the\nforegoing makes it necessary for the protection of NPC's business that Employee not compete with NPC during the term of his employment and for a reasonable\nperiod thereafter. 5 . Employee agrees that he will not, during his employment, compete with NPC within the continental United States. Employee agrees that, in\naccordance with this restriction, but without limiting its terms, he will not during the term of his employment: (i) enter into or engage in any business that competes\nwith NPC's Business; or (ii) solicit any customers, clients, business, patronage or orders for, or sell any services in competition with, or for any business that\ncompetes with NPC's Business; or (iii) divert, entice, or take away any customers, clients, business, patronage or orders of NPC, or attempt to do so; or (iv)\npromote or assist, financially or otherwise, any person, firm, association or corporation engaged in any business that competes with NPC's Business. 6.\nEmployee agrees that, within the continental United States, he will not, for a period of two (2) years following the termination of his employment, enter into or\nengage in any business that competes with NPC's Business. 7 . Employee agrees that, within the continental United States, he will not, for a period of two (2)\nyears following the termination of his employment, solicit customers, clients, business, patronage, or orders for, or sell any services in competition with NPC's\nBusiness. 8. Employee agrees that, within the continental United States, he will not, for a period of two (2) years following the termination of his employment,\ndivert, entice, or otherwise take away any customers, clients, business or orders of NPC or attempt to do so. 9. Employee agrees that, within the continental\nUnited States, he will not, for a period of two (2) years following the termination of his employment, promote or assist financially or otherwise, any person, firm,\nassociation, partnership, corporation, or other entity engaged in any business that competes with NPC's Business. 10. For the purposes of paragraphs 5 through\n9, inclusive, Employee understands and agrees that he will be competing if he engages in any or all of the activities set forth therein directly as an individual on\nhis own account, or indirectly as a partner, joint venturer, employee, agent, salesman, consultant, officer and/or director of any firm or corporation, or as a\nstockholder of any corporation in which Employee or Employee's spouse, child or parent owns, directly or indirectly, individually or in the aggregate, more than\nten percent (10%) of the outstanding stock. 11. For the purposes of paragraphs 5 through 9, inclusive, and 15, NPC's Business is defined as the acquisition and\nprocessing of credit and debit card transactions accepted by merchants at the point of sale. 12 . If it shall be judicially determined that Employee has violated any\nof his obligations under paragraphs 5 through 9, inclusive, then the period applicable to the obligation which Employee shall have been determined to have\nviolated shall automatically be extended by a period of time equal in length to the period during which said violation(s) occurred. 13. Employee agrees that he will\nnot directly or indirectly at any time solicit or induce or attempt to solicit or induce any employee of NPC to terminate his employment, representation or other\nassociation with NPC. 14. Employee will keep in strict confidence, and will not, directly or indirectly, at any time during or after his employment, disclose, furnish,\ndisseminate, make available or use (except in the course of performing his duties of employment hereunder) any trade secrets or confidential business and\ntechnical information of NPC or its customers or clients, without limitation as to when or how Employee may have acquired such information. Such confidential\ninformation shall include, the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, pattern, compilation,\nprogram, device, method, technique or improvement, or any business information or plans, financial information, or listing of names, addresses or telephone\nnumbers, including without limitation, information relating to any of NPC's customers or prospective customers, NPC's customer lists, contract information\nincluding terms, pricing and services provided, information received as a result of customer contacts, NPC's products and processing capabilities, methods of\noperation, business plans, financials or strategy, and agreements to which NPC may be a party. Employee specifically acknowledges that such information,\nwhether reduced to writing or maintained in the mind or memory of Employee and whether compiled by NPC and/or Employee, derive independent economic\nvalue from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or use, that reasonable\nefforts have been put forth by NPC to maintain the secrecy of such information, that such information is the sole property of NPC and that any retention and use\nof such information during or after his employment with NPC (except in the course of performing his duties of employment hereunder) shall constitute a\nmisappropriation of NPC's trade secrets. Employee further agrees that, at the time of termination of his employment, he will return to NPC, in good condition, all\nproperty of NPC, including, without limitation, the information identified above. In the event that said items are not so returned, NPC shall have the right to charge\nEmployee for all reasonable damages, costs, attorney's fees and other expenses incurred in searching for, taking, removing, and/or recovering such property. 15 .\nDuring his employment and for two (2) years thereafter, Employee agrees to communicate the contents of this Agreement to any person, firm, association, or\ncorporation that he intends to be employed by, associated with, or represent, that is engaged in a business that is competitive to NPC's Business. 16. Employee\nacknowledges and agrees that the remedy at law available to NPC for breach of any of Employee's obligations under this Agreement would be inadequate, and\nagrees and consents that in addition to any other rights or remedies that NPC may have at law or in equity, temporary and permanent injunctive relief may be\ngranted in any proceeding that may be brought to enforce any provision contained in paragraphs 5 through 9, inclusive, of this Agreement, without the necessity\nof proof of actual damage. 17. Employee acknowledges that his obligations under this Agreement are reasonable in the context of the nature of NPC's business\nand the competitive injuries likely to be sustained by NPC if Employee violated such obligations. Employee further acknowledges that this Agreement is made in\nconsideration of, and is adequately supported by the obligations undertaken by NPC in paragraph 1 above, which Employee acknowledges constitutes new\nand/or good, valuable and sufficient consideration. Employee acknowledges that his employment relationship with NPC is and following the execution of this\nAgreement shall continue to be "at will," and may be terminated at any time and for any reason, or for no reason, by NPC or by Employee. However, if NPC\nterminates Employee's employment for reasons other than cause and/or violation of this Agreement, then NPC shall pay Employee an amount equal to two (2)\ntimes Employee's annual base salary at the time of termination, with said amount being paid to Employee over a twenty-four (24) month period on the same\nperiodic basis as NPC's regular payroll, so long as Employee does not violate any part of this Agreement. For the purposes of this Agreement, "Cause" is defined\nas fraud, misconduct and/or violation of NPC's employment policies. 18 . The failure of NPC to enforce any provision of this Agreement shall not be construed to\nbe a waiver of such provision or of the right of NPC thereafter to enforce each and every provision. 19. This Agreement supersedes all previous agreements,\nwritten or oral, between Employee and NPC. No modification, waiver, amendment or addition to any of the terms of this Agreement shall be effective except as\nset forth in a writing signed by Employee and NPC. 20. All provisions, terms, conditions, paragraphs, agreements and covenants ("Provisions") contained in this\nAgreement are severable and, in the event any one of them shall be held to be invalid by any competent court, this Agreement shall be interpreted as if such\nProvision was not contained herein, and such determination shall not otherwise affect the validity of any other Provision. The within provisions shall be applicable\nirrespective of whether such termination shall be by NPC or by the Employee, whether voluntary or involuntary, whether for cause or without cause, and whether\nby reason or the expiration of this or any other written or oral agreement or arrangement (or any extensions thereof) with NPC. 21. While the restrictions set forth\nherein are considered by the parties to be reasonable in all circumstances, it is recognized that restrictions of this nature may fail for reasons unforeseen, and\naccordingly it is hereby agreed and declared that if any of such restrictions shall be adjudged to be void as going beyond what is reasonable in all the\ncircumstances, but would be valid if the geographical area or temporal extent were reduced in part, or the range of activities or area dealt with thereby reduced in\nscope, the said restriction shall apply with such modification as may be necessary to make it valid and effective. 22 . This Agreement shall take effect upon\nexecution by Employee and NPC and shall be governed by, and construed in accordance with, the internal, substantive laws of the Commonwealth of Kentucky.\nEmployee agrees that the state and federal courts located in the Commonwealth of Kentucky, shall have jurisdiction in any action, suit or proceeding against\nEmployee based on or arising out of this Agreement and Employee hereby: (i) submits to the personal jurisdiction of such courts; (ii) consents to service of\nprocess in connection with any action, suit or proceeding against Employee; and (iii) waives any other requirement (whether imposed by statute, rule of court or\notherwise) with respect to personal jurisdiction, venue or service of process. Employee represents that, prior to signing this Agreement, he has read, fully\nunderstands and voluntarily agrees to the terms and conditions as stated above, that he was not coerced to sign this Agreement, that he was not under duress at\nthe time he signed this Agreement and that, prior to signing this Agreement, he had adequate time to consider entering into this Agreement, including without\nlimitation, the opportunity to discuss the terms and conditions of this Agreement, as well as its legal consequences, with an attorney of his choice. IN WITNESS\nWHEREOF, the Employee, having read and fully understood each of the foregoing provisions, has executed this Agreement as of this 4th day of March, 1996.\nEMPLOYEE: MARK PYKE /s/ Mark D. Pyke ---------------- (Signature) NATIONAL PROCESSING COMPANY By: /s/ Kurt Knipp -------------- (Signature) Title: EVP\n-- - Dated this 4th day of March, 1996
e1bdc56d34ad4f49ca852d456c015a76.pdf	effective_date jurisdiction party	EXHIBIT A\nPROPRIETARY INFORMATION, INVENTIONS AND NON-COMPETITION AGREEMENT\nThis PROPRIETARY INFORMATION, INVENTIONS and NON-COMPETITION AGREEMENT (the “Agreement”) is\nmade and entered into as of July 19, 2019 (the “Effective Date”), by and between Cosmos Group Holdings, a Nevada\ncorporation (“Corporation”) and Wing Lok Jonathan SO (“Executive”).\nRECITALS\nWHEREAS, the parties desire to assure the confidential status and proprietary nature of the information which may\nbe disclosed by Corporation to the Executive; and\nAGREEMENT\nNOW THEREFORE, in reliance upon and in consideration of the following undertaking, the parties agree as follows:\n1. Nondisclosure.\n1.1 Recognition of Corporation’s Rights; Nondisclosure. At all times during the period of time Executive is\nengaged as a consultant, independent contractor or employee of the Corporation (“Service Period”) and provides\nthe necessary and requested services in such capacity (“Services”), Executive will hold in strictest confidence and\nwill not disclose, use, lecture upon or publish any of the Corporation’s Proprietary Information (defined below),\nexcept as such disclosure, use or publication may be required in connection with Service to the Corporation, or\nunless the Corporation expressly authorizes such disclosure in writing. Executive will obtain Corporation’s written\napproval before publishing or submitting for publication any material (written, verbal, or otherwise) that relates to\nServices and/or incorporates any Proprietary Information. Executive hereby assigns to the Corporation any rights\nExecutive may have or acquire in such Proprietary Information and recognizes that all Proprietary Information shall\nbe the sole property of the Corporation and its assigns.\n1.2 Proprietary Information. The term “Proprietary Information” shall mean any and all confidential and/or\nproprietary knowledge, data or information of the Corporation, including that which Executive may produce in\nservice to the Corporation. By way of illustration but not limitation, “Proprietary Information” includes (a) trade\nsecrets, inventions, mask works, ideas, processes, formulas, source and object codes, data, programs, other works\nof authorship, know-how, improvements, discoveries, developments, designs and techniques (hereinafter\ncollectively referred to as “Inventions”); and (b) information regarding plans for research, development, new\nproducts, marketing and selling, business plans, budgets and unpublished financial statements, pricing strategies,\nlicenses, prices and costs, suppliers and customers; and (c) information regarding the skills and compensation of\nother service providers of the Corporation.\n1.3 Third Party Information. Executive understands, in addition, that the Corporation has received and in the\nfuture will receive from third parties, including clients, customers, consultants, licensees or affiliates, confidential or\nproprietary information (“Third Party Information”). Executive understands that the Corporation has a duty to\nmaintain the confidentiality of such Third Party Information and to use it only for certain limited purposes. During the\nService Period and thereafter, Executive will hold Third Party Information in the strictest confidence and will not\ndisclose Third Party Information to anyone (other than Corporation personnel who need to know such information in\nconnection with their work for the Corporation) or use Third Party Information (except in connection with the\nperformance of Executive’s Services for the Corporation), unless expressly authorized by the Corporation in writing.\n1.4 No Improper Use of Information of Prior Employers and Others. During the Service Period, Executive will\nnot improperly use or disclose any confidential information or trade secrets, if any, of any former or current\nemployer or any other person to whom Executive has an obligation of confidentiality, and Executive will not bring\nonto the Corporation premises any unpublished documents or any property belonging to any former or current\nemployer or any other person to whom Executive has an obligation of confidentiality unless consented to in writing\nby that former or current employer or person. In the performance of his duties, Executive will only use information\nwhich is generally known and used by persons with training and experience comparable to his own, which is\ncommon knowledge in the industry or otherwise legally in the public domain, or which is otherwise provided or\ndeveloped by the Corporation.\nA-1\n2. Assignment of Inventions.\n2.1 Proprietary Rights. The term “Proprietary Rights” shall mean all trade secrets, patent, copyright, mask\nwork and other intellectual property rights throughout the world.\n2.2 Prior Inventions. Inventions, if any, patented or unpatented, which Executive made prior to the\ncommencement of the Service Period are excluded from the scope of this Agreement. To preclude any possible\nuncertainty, Executive has set forth on Attachment B (Previous Inventions) attached hereto a complete list of all\nInventions that Executive has or caused to be (alone or jointly with others) conceived, developed or reduced to\npractice prior to the commencement of the Service Period, that Executive considers to be his property or the\nproperty of third parties and that Executive wishes to have excluded from the scope of this Agreement (collectively\nreferred to as “Prior Inventions”). If such disclosure would cause Executive to violate any prior confidentiality\nagreement, Executive shall not list such Prior Inventions in Attachment B but only disclose a cursory name for each\nsuch Invention, a listing of the party(ies) to whom it belongs and the fact that full disclosure as to such inventions\nhas not been made for that reason. A space is provided on Attachment B for such purpose. If no such disclosure is\nattached, Executive represents that there are no Prior Inventions. If, during the Service Period, Executive\nincorporates a Prior Invention into a Corporation product, process or machine, the Corporation is hereby granted\nand shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with rights to sublicense\nthrough multiple tiers of sublicensees) to make, have made, modify, use and sell such Prior Invention.\nNotwithstanding the foregoing, Executive agrees that he will not incorporate, or permit to be incorporated, Prior\nInventions in any Corporation Inventions without the Corporation’s prior written consent.\n2.3 Assignment of Inventions. Subject to Sections 2.4 and 2.6, Executive hereby assigns, and agrees to\nassign in the future when any such Inventions or Proprietary Rights are first reduced to practice or first fixed in a\ntangible medium, as applicable, to the Corporation all right, title and interest in and to any and all Inventions (and all\nProprietary Rights with respect thereto) whether or not patentable or registrable under copyright or similar statutes,\nmade or conceived or reduced to practice or learned by Executive, either alone or jointly with others, during the\nService Period. Inventions assigned to the Corporation, or to a third party as directed by the Corporation pursuant\nto this Section 2, are hereinafter referred to as “Corporation Inventions.”\n2.4 Non-assignable Inventions. This Agreement does not apply to an Invention which the Executive developed\nentirely on his or her own time without using the Company’s equipment, supplies, facilities, or trade secret\ninformation except for those inventions that either:\n•\nRelate at the time of conception or reduction to practice of the invention to the Company’s business, or\nactual or demonstrably anticipated research or development of the Company; or\n•\nResult from any Services performed by the Executive for the Company.\n2.5. Limited Exclusion Notification. Executive has reviewed the notification on Attachment A (Limited\nExclusion Notification) and agrees that his signature acknowledges receipt of the notification.\n2.6 Obligation to Keep Corporation Informed. During the Service Period, and for twelve (12) months after\ntermination of the Service Period, Executive will fully disclose in writing to the Corporation all Inventions authored,\nconceived or reduced to practice by Executive, either alone or jointly with others, within no more than thirty\n(30) days after creation. In addition, Executive will disclose to the Corporation all patent applications filed within a\nyear after termination of the Service Period by Executive, or on his behalf, within no more than thirty (30) days after\nfiling. At the time of each such disclosure, Executive will advise the Corporation in writing of any Inventions that he\nbelieves fully qualify for exemption under Section 2.4 of this Agreement, and Executive will, at that time, provide all\nwritten evidence necessary to substantiate that belief. The Corporation will keep in confidence and will not use for\nany purpose or disclose to third parties without Executive’s consent any confidential information disclosed in writing\nto the Corporation pursuant to this Agreement relating to Inventions that qualify fully for exemption under the\nprovisions of Section 2.4 of this Agreement. Executive will preserve the confidentiality of any Invention that does not\nfully qualify for exemption under Section 2.4 of this Agreement.\nA-2\n2.7 Works for Hire. Executive acknowledges that all original works of authorship which are made by Executive\n(solely or jointly with others) within the scope of Service and which are protectable by copyright are “works made for\nhire,” pursuant to United States Copyright Act (17 U.S.C., Section 101) and shall be the sole property of the\nCorporation.\n2.8 Enforcement of Proprietary Rights. Executive will assist the Corporation, or its nominee, to obtain and\nenforce United States and foreign Proprietary Rights relating to Corporation Inventions in any and all countries, and\nsuch Proprietary Rights and Corporation Inventions shall be and remain the sole and exclusive property of the\nCorporation, or its nominee, whether or not patented or copyrighted. Accordingly, Executive will promptly execute,\nverify and deliver such documents and perform such other acts (including appearances as a witness and assistance\nor cooperation in legal proceedings) as the Corporation may reasonably request in applying for, obtaining,\nperfecting, evidencing, sustaining and enforcing such Proprietary Rights and the assignment thereof. This obligation\nshall survive and continue beyond the termination of the Service Period, but the Corporation shall compensate\nExecutive at a reasonable rate after his termination for the time actually spent providing such assistance.\n2.9 Appointment of Corporation as Agent. If, after reasonable effort, the Corporation is unable to secure\nExecutive’s signature on any document needed in connection with the actions specified herein, Executive hereby\nirrevocably designates and appoints the Corporation and its duly authorized officers and agents as Executive’s\nagents and attorneys-in-fact, which appointment is coupled with an interest, to act for and in Executive’s behalf to\nexecute, verify and file any such documents and to do all other lawfully permitted acts to further the purposes of this\nAgreement with the same legal force and effect as if executed by Executive. Executive hereby waives and\nquitclaims to the Corporation any and all claims, of any nature whatsoever, which Executive now or may hereafter\nhave for infringement of any Proprietary Rights assigned hereunder to the Corporation.\n3. Records.\nExecutive agrees to keep and maintain adequate and current records (in the form of notes, sketches, drawings and\nin any other form that may be required by the Corporation) of all Proprietary Information developed by Executive\nand all Inventions made by Executive during the Service Period, which records shall be available to and remain the\nsole property of the Corporation at all times.\n4. Non-Competition Obligation.\nExecutive agrees that during the Service Period, Executive will not provide any services or engage in any\nemployment or business activity which is competitive with, or would otherwise conflict with, Executive’s Service to\nthe Corporation, without the Corporation’s express written consent. Executive agrees further that during the Service\nPeriod and for two (2) years after the termination of the Service Period, Executive will not, either directly or through\nothers, use trade secret information of the Company to solicit or attempt to solicit any customer, vendor, employee,\nindependent contractor or consultant of the Corporation to terminate his or her relationship with the Corporation in\norder to become a customer, vendor, employee, consultant or independent contractor to or for any other person or\nentity including, without limitation, Executive.\n5. Non-Solicitation With the Corporation.\nExecutive covenants and agrees that, for a period of two (2) years following termination of the Service Period,\nExecutive will not use trade secret information of the Corporation to solicit or engage in competitive business with\nCorporation’s existing or potential vendors or customers at the time of his separation from the Corporation and\nExecutive will not encourage or solicit any customer, vendor, employee or consultant to leave the Corporation for\nany reason.\nA-3\n6. No Conflicting Obligation.\nExecutive represents that his performance of all the terms of this Agreement and as an executive to the Corporation\ndoes not and will not breach any agreement to keep information acquired by Executive prior to the Service Period in\nconfidence or trust. Executive has not entered into, and agrees he will not enter into, any agreement either written\nor oral in conflict herewith.\n7. Return of Corporation Documents.\nUpon termination of the Service Period, Executive will deliver to the Corporation any and all drawings, notes,\nmemoranda, specifications, devices, formulas, and documents, together with all copies thereof, and any other\nmaterial containing, comprising or disclosing any Corporation Inventions, Proprietary Information and Third Party\nInformation. Executive further agrees that any property situated on the Corporation’s premises and owned by the\nCorporation, including disks and other storage media, filing cabinets or other work areas, is subject to inspection by\nthe Corporation at any time with or without notice. Prior to leaving, Executive will cooperate with the Corporation in\ncompleting and signing the Corporation’s termination statement, which will include, at a minimum, the certifications\nset forth in Attachment C.\n8. Legal and Equitable Remedies.\nBecause Executive’s services are personal and unique and because Executive may have access to and become\nacquainted with the Proprietary Information of the Corporation, the Corporation shall have the right to enforce this\nAgreement and any of its provisions by injunction, specific performance or other equitable relief, without bond and\nwithout prejudice to any other rights and remedies that the Corporation may have for a breach of this Agreement.\n9. Notices.\nAny notices required or permitted hereunder shall be given to the appropriate party at the address specified below\nor at such other address as the party shall specify in writing. Such notice shall be deemed given upon personal\ndelivery to the appropriate address or, if sent by certified or registered mail, three (3) days after the date of mailing.\n10. General Provisions.\n10.1 Governing Law; Consent to Personal Jurisdiction; Attorney’s Fees. This Agreement and the legal\nrelations among the parties shall be governed by, and construed and enforced in accordance with, the laws of the\nState of Nevada, without regard to its conflict of laws rules. The Corporation and Executive hereby irrevocably and\nunconditionally (i) agree that any action or proceeding arising out of or in connection with this Agreement shall be\nbrought only in the State of Nevada (the “Nevada Court”), and not in any other state or federal court in the United\nStates of America or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Nevada\nCourt for purposes of any action or proceeding arising out of or in connection with this Agreement, and (iii) waive\nany objection to the laying of venue of any such action or proceeding in the Nevada Court and (iv) waive, and agree\nnot to plead or to make, any claim that any such action or proceeding brought in the Nevada Court has been\nbrought in an improper or inconvenient forum.\n10.2 Severability. If one or more of the provisions contained in this Agreement shall, for any reason, be held to\nbe invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the\nother provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or\nunenforceable provision had never been contained herein. If, moreover, any one or more of the provisions\ncontained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical\nscope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent\ncompatible with the applicable law as it shall then appear.\nA-4\n10.3 Successors and Assigns. This Agreement will be binding upon Executive’s heirs, executors,\nadministrators and other legal representatives and will be for the benefits of the Corporation, its successors, and its\nassigns.\n10.4 Survival. Executive agrees that the provisions of this Agreement shall survive the termination of the\nService Period and the assignment of this Agreement by the Corporation to any successor-in-interest or other\nassignee, regardless of the reason or reasons for termination and whether such termination is voluntary or\ninvoluntary.\n10.5 Nature of Relationship. This Agreement shall not be deemed nor does it create an employment contract\nbetween the Corporation (or any of its subsidiaries or related companies) and Executive. Executive is an\nindependent contractor and shall not be deemed an employee of the Corporation for purposes of employee\nbenefits, income tax withholding, F.I.C.A . taxes, unemployment benefits or any other purpose. Executive’s term of\nservice is defined in Section 7 of the Executive Retainer Agreement between Executive and the Company signed\nconcurrently herewith.\n10.6 Waiver. No waiver by the Corporation of any breach of this Agreement shall be a waiver of any preceding\nor succeeding breach. No waiver by the Corporation of any right under this Agreement shall be construed as a\nwaiver of any other right. The Corporation shall not be required to give notice to enforce strict adherence to all\nterms of this Agreement.\n10.7 Advice of Counsel. Executive acknowledges that, in executing this Agreement, Executive has had the\nopportunity to seek the advice of independent legal counsel, and Executive has read and understood all of the\nterms and provisions of this Agreement. This Agreement shall not be construed against any party by reason of the\ndrafting or preparation hereof.\n10.8 Modification. This Agreement may not be changed, modified, released, discharged, abandoned or\notherwise amended, in whole or in part, except by an instrument in writing, signed by Executive and the\nCorporation. Executive agrees that any subsequent change or changes in Executive’s duties, salary, or\ncompensation shall not affect the validity or scope of this Agreement.\n10.9 Entire Agreement. The obligations of this Agreement shall apply to any time during which Executive\npreviously provided service, or will in the future provide service, to the Corporation as a consultant or agent if no\nother agreement governs nondisclosure and assignment of inventions during such period. This Agreement is the\nfinal, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes\nand merges all prior discussions between us. No modification of or amendment to this Agreement, nor any waiver\nof any rights under this Agreement, will be effective unless in writing and signed by the party to be charged. The\nheadings in this Agreement are used for convenience only and are not to be considered a part of this Agreement or\nbe used to interpret the meaning of any part of this Agreement.\n10.10 Counterparts. This Agreement may be signed in two counterparts, each shall be deemed an original\nand both of which shall together constitute one agreement. The parties hereto agree to accept a facsimile\ntransmission copy of their respective actual signatures as evidence of their actual signatures to this Agreement and\nany modification or amendment of this Agreement; provided, however, that each party who produces a facsimile\nsignature agrees, by the express terms hereof, to place, promptly after transmission of his or her signature by fax, a\ntrue and correct original copy of his or her signature in overnight mail to the address of the other party.\n[The remainder of this page has been intentionally left blank. Signature page(s) to follow]\nA-5\nI HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE COMPLETELY FILLED\nOUT ATTACHMENT B TO THIS AGREEMENT. NO PROMISES OR REPRESENTATIONS HAVE BEEN MADE TO ME\nTO INDUCE ME TO SIGN THIS AGREEMENT. I SIGN THIS AGREEMENT VOLUNTARILY AND FREELY.\nDated:\nBy:\nPrinted Name:\nWing Lok Jonathan SO\nACCEPTED AND AGREED TO:\nCOSMOS GROUP HOLDINGS, INC.\nBy:\nMiky Y.C. Wan\nIts:\nChief Executive Officer, Interim Chief Financial\nOfficer and President\nSignature Page to Proprietary Information, Inventions and Non-Competition Agreement\nA-6	EXHIBIT A\nPROPRIETARY INFORMATION, INVENTIONS AND NON-COMPETITION AGREEMENT\nThis PROPRIETARY INFORMATION, INVENTIONS and NON-COMPETITION AGREEMENT (the “Agreement”) is\nmade and entered into as of] uly 19, 2019 (the “Effective Date”), by and between Cosmos Group Holdings, a Nevada corporation (“Corporation”) and Wing LokJ onathan SO (“E xecutive”). RECITALS\nWHEREAS, the parties desire to assure the confidential status and proprietary nature of the information which may\nbe disclosed by Corporation to the Executive; and 1. AGREEMENT\nNOW THEREFORE, in reliance upon and in consideration of the following undertaking, the parties agree as follows:\nNondisclosure.\n1.1 Recognition of Corporation's Rights; Nondisclosure. At all times during the period of time Executive is\nengaged as a consultant, independent contractor or employee of the Corporation (“Service Period”) and provides\nthe necessary and requested services in such capacity (“Services”), Executive will hold in strictest confidence and\nwill not disclose, use, lecture upon or publish any of the Corporation's Proprietary Information (defined below),\nexcept as such disclosure, use or publication may be required in connection with Service to the Corporation, or\nunless the Corporation expressly authorizes such disclosure in writing. Executive will obtain Corporation's written\napproval before publishing or submitting for publication any material (written, verbal, or otherwise) that relates to\nServices and/or incorporates any Proprietary Information. Executive hereby assigns to the Corporation any rights\nExecutive may have or acquire in such Proprietary Information and recognizes that all Proprietary Information shall\nbe the sole property ofthe Corporation and its assigns.\n1.2 Proprietary Information. The term “Proprietary Information" shall mean any and all confidential and/or\nproprietary knowledge, data or information of the Corporation, including that which Executive may produce in\nservice to the Corporation. By way of illustration but not limitation, “Proprietary Information" includes (a) trade\nsecrets, inventions, mask works, ideas, processes, formulas, source and object codes, data, programs, other works\nof authorship, know-how, improvements, discoveries, developments, designs and techniques (hereinafter\ncollectively referred to as “Inventions"); and (b) information regarding plans for research, development, new\nproducts, marketing and selling, business plans, budgets and unpublished financial statements, pricing strategies,\nlicenses, prices and costs, suppliers and customers; and (c) information regarding the skills and compensation of\nother service providers of the Corporation.\n1.3 Third Par_ty Information. Executive understands, in addition, that the Corporation has received and in the\nfuture will receive from third parties, including clients, customers, consultants, licensees or affiliates, confidential or\nproprietary information (“Third Party Information"). Executive understands that the Corporation has a duty to\nmaintain the confidentiality ofsuch Third Party Information and to use itonly for certain limited purposes. During the\nService Period and thereafter, Executive will hold Third Party Information in the strictest confidence and will not\ndisclose Third Party Information to anyone (otherthan Corporation personnel who need to know such information in\nconnection with their work for the Corporation) or use Third Party Information (except in connection with the\nperformance of Executive's Services forthe Corporation), unless expressly authorized by the Corporation in writing.\n1.4 No Improper Use of Information of Prior Employers and Others. During the Service Period, Executive will\nnot improperly use or disclose any confidential information or trade secrets, if any, of any former or current\nemployer or any other person to whom Executive has an obligation of confidentiality, and Executive will not bring\nonto the Corporation premises any unpublished documents or any property belonging to any former or current\nemployer or any other person to whom Executive has an obligation of confidentiality unless consented to in writing\nby that former or current employer or person. In the performance of his duties, Executive will only use information\nwhich is generally known and used by persons with training and experience comparable to his own, which is\ncommon knowledge in the industry or otherwise legally in the public domain, or which is otherwise provided or\ndeveloped by the Corporation.\nA-l\f2. Assignmentoflnventions.\n2.1 Proprietary Rights. The term “Proprielary Rights" shall mean all trade secrets, patent, copyright, mask\nwork and other intellectual property rights throughout the world.\n2.2 Prior Inventions. Inventions, if any, patented or unpatented, which Executive made prior to the\ncommencement of the Service Period are excluded from the scope of this Agreement. To preclude any possible\nuncertainty, Executive has set forth on Attachment B (Previous Inventions) attached hereto a complete list of all\nInventions that Executive has or caused to be (alone or jointly with others) conceived, developed or reduced to\npractice prior to the commencement of the Service Period, that Executive considers to be his property or the\nproperty of third parties and that Executive wishes to have excluded from the scope of this Agreement (collectively\nreferred to as “Prior Inventions"). If such disclosure would cause Executive to violate any prior confidentiality\nagreement, Executive shall not list such Prior Inventions in Attachment B but only disclose a cursory name for each\nsuch Invention, a listing of the party(ies) to whom it belongs and the fact that full disclosure as to such inventions\nhas not been made for that reason. A space is provided on Attachment B for such purpose. If no such disclosure is\nattached, Executive represents that there are no Prior Inventions. If, during the Service Period, Executive\nincorporates a Prior Invention into a Corporation product, process or machine, the Corporation is hereby granted\nand shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with rights to sublicense\nthrough multiple tiers of sublicensees) to make, have made, modify, use and sell such Prior Invention.\nNotwithstanding the foregoing, Executive agrees that he will not incorporate, or permit to be incorporated, Prior\nInventions in any Corporation Inventions without the Corporation's prior written consent.\n2.3 Assignment of Inventions. Subject to Sections 2.4 and 2.6, Executive hereby assigns, and agrees to\nassign in the future when any such Inventions or Proprietary Rights are first reduced to practice or first fixed in a\ntangible medium, as applicable, to the Corporation all right, title and interest in and to any and all Inventions (and all\nProprietary Rights with respect thereto) whether or not patentable or registrable under copyright or similar statutes,\nmade or conceived or reduced to practice or learned by Executive, either alone orjointly with others, during the\nService Period. Inventions assigned to the Corporation, or to a third party as directed by the Corporation pursuant\nto this Section 2, are hereinafter referred to as “Corporation Inventions."\n2.4 Non-assignable Inventions. This Agreement does not apply to an Invention which the Executive developed\nentirely on his or her own time without using the Company's equipment, supplies, facilities, or trade secret\ninformation except forthose inventions that either:\n0 Relate at the time of conception or reduction to practice of the invention to the Company's business, or\nactual or demonstrably anticipated research or development of the Company; or\n0 Result from any Services performed by the Executive forthe Company.\n2.5. Limited Exclusion Notification. Executive has reviewed the notification on Attachment A (Limited\nExclusion Notification) and agrees that his signature acknowledges receipt of the notification.\n2.6 Obligation to Keep Corporation Informed. During the Service Period, and for twelve (12) months after\ntermination of the Service Period, Executive will fully disclose in writing to the Corporation all Inventions authored,\nconceived or reduced to practice by Executive, either alone or jointly with others, within no more than thirty\n(30) days after creation. In addition, Executive will disclose to the Corporation all patent applications filed within a\nyear after termination of the Service Period by Executive, or on his behalf, within no more than thirty (30) days after\nfiling. At the time of each such disclosure, Executive will advise the Corporation in writing of any Inventions that he\nbelieves fully qualify for exemption under Section 2.4 of this Agreement, and Executive will, at that time, provide all\nwritten evidence necessary to substantiate that belief. The Corporation will keep in confidence and will not use for\nany purpose or disclose to third parties without Executive's consent any confidential information disclosed in writing\nto the Corporation pursuant to this Agreement relating to Inventions that qualify fully for exemption under the\nprovisions of Section 2.4 of this Agreement. Executive will preserve the confidentiality of any Invention that does not\nfully qualify for exemption under Section 2.4 of this Agreement.\nA-2\n2.7 Works for Hire. Executive acknowledges that all original works of authorship which are made by Executive\n(solely orjointly with others) within the scope of Service and which are protectable by copyright are “works made for\nhire,” pursuant to United States Copyright Act (17 U.S.C., Section 101) and shall be the sole property of the\nCorporation.\n2.8 Enforcement of Proprietary Rights. Executive will assist the Corporation, or its nominee, to obtain and\nenforce United States and foreign Proprietary Rights relating to Corporation Inventions in any and all countries, and\nsuch Proprietary Rights and Corporation Inventions shall be and remain the sole and exclusive property of the\nCorporation, or its nominee, whether or not patented or copyrighted. Accordingly, Executive will promptly execute,\nverify and deliver such documents and perform such other acts (including appearances as a witness and assistance\nor cooperation in legal proceedings) as the Corporation may reasonably request in applying for, obtaining,\nperfecting, evidencing, sustaining and enforcing such Proprietary Rights and the assignment thereof. This obligation\nshall survive and continue beyond the termination of the Service Period, but the Corporation shall compensate\nExecutive at a reasonable rate after his termination for the time actually spent providing such assistance.\n2.9 Appointment of Corporation as Agent. If, after reasonable effort, the Corporation is unable to secure\nExecutive's signature on any document needed in connection with the actions specified herein, Executive hereby\nirrevocably designates and appoints the Corporation and its duly authorized officers and agents as Executive's\nagents and attorneys-in-fact, which appointment is coupled with an interest, to act for and in Executive's behalf to\nexecute, verify and file any such documents and to do all other lawfully permitted acts to further the purposes of this\nAgreement with the same legal force and effect as if executed by Executive. Executive hereby waives and\nquitclaims to the Corporation any and all claims, of any nature whatsoever, which Executive now or may hereafter\nhave for infringement of any Proprietary Rights assigned hereunder to the Corporation.\n3. Records.\nExecutive agrees to keep and maintain adequate and current records (in the form of notes, sketches, drawings and\nin any other form that may be required by the Corporation) of all Proprietary Information developed by Executive\nand all Inventions made by Executive during the Service Period, which records shall be available to and remain the\nsole property of the Corporation at all times.\n4. Non-Competition Obligation.\nExecutive agrees that during the Service Period, Executive will not provide any services or engage in any\nemployment or business activity which is competitive with, or would otherwise conflict with, Executive's Service to\nthe Corporation, without the Corporation's express written consent. Executive agrees further that during the Service\nPeriod and for two (2) years after the termination of the Service Period, Executive will not, either directly or through\nothers, use trade secret information of the Company to solicit or attempt to solicit any customer, vendor, employee,\nindependent contractor or consultant of the Corporation to terminate his or her relationship with the Corporation in\norder to become a customer, vendor, employee, consultant or independent contractor to or for any other person or\nentity including, without limitation, Executive.\n5. Non-Solicitation With the Corporation.\nExecutive covenants and agrees that, for a period of two (2) years following termination of the Service Period,\nExecutive will not use trade secret information of the Corporation to solicit or engage in competitive business with\nCorporation's existing or potential vendors or customers at the time of his separation from the Corporation and\nExecutive will not encourage or solicit any customer, vendor, employee or consultant to leave the Corporation for\nany reason.\nA-3\n6. No Conflicting Obligation.\nExecutive represents that his performance of all the terms of this Agreement and as an executive to the Corporation\ndoes notand will not breach any agreementto keep information acquired by Executive priorto the Service Period in\nconfidence or trust. Executive has not entered into, and agrees he will not enter into, any agreement either written\nor oral in conflict herewith.\n7. Return of Corporation Documents.\nUpon termination of the Service Period, Executive will deliver to the Corporation any and all drawings, notes,\nmemoranda, specifications, devices, formulas, and documents, together with all copies thereof, and any other\nmaterial containing, comprising or disclosing any Corporation Inventions, Proprietary Information and Third Party\nInformation. Executive further agrees that any property situated on the Corporation's premises and owned by the\nCorporation, including disks and other storage media, filing cabinets or other work areas, is subjectto inspection by\nthe Corporation at any time with or without notice. Prior to leaving, Executive will cooperate with the Corporation in\ncompleting and signing the Corporation's termination statement, which will include, at a minimum, the certifications\nset forth in Attachment C.\n8. Legal and Eguitable Remedies.\nBecause Executive's services are personal and unique and because Executive may have access to and become\nacquainted with the Proprietary Information of the Corporation, the Corporation shall have the right to enforce this\nAgreement and any of its provisions by injunction, specific performance or other equitable relief, without bond and\nwithout prejudice to any other rights and remedies that the Corporation may have for a breach of this Agreement.\n9. Notices.\nAny notices required or permitted hereunder shall be given to the appropriate party at the address specified below\nor at such other address as the party shall specify in writing. Such notice shall be deemed given upon personal\ndelivery to the appropriate address or, if sent by certified or registered mail, three (3) days afterthe date of mailing.\n10. General Provisions.\n10.1 Governing Law; Consent to Personal |urisdiction; Attorney's Fees. This Agreement and the legal\nrelations among the parties shall be governed by, and construed and enforced in accordance with, the laws of the\nState of Nevada, without regard to its conflict of laws rules. The Corporation and Executive hereby irrevocably and\nunconditionally (i) agree that any action or proceeding arising out of or in connection with this Agreement shall be\nbrought only in the State of Nevada (the “Nevada Court”), and not in any other state or federal court in the United\nStates ofAmerica or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Nevada\nCourt for purposes of any action or proceeding arising out of or in connection with this Agreement, and (iii) waive\nany objection to the laying ofvenue of any such action or proceeding in the Nevada Court and (iv) waive, and agree\nnot to plead or to make, any claim that any such action or proceeding brought in the Nevada Court has been\nbrought in an improper or inconvenient forum.\n10.2 Severability. If one or more of the provisions contained in this Agreement shall, for any reason, be held to\nbe invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the\nother provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or\nunenforceable provision had never been contained herein. If, moreover, any one or more of the provisions\ncontained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical\nscope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent\ncompatible with the applicable law as it shall then appear.\nA-4\n10.3 Successors and Assigns. This Agreement will be binding upon Executive's heirs, executors,\nadministrators and other legal representatives and will be forthe benefits of the Corporation, its successors, and its\nassigns.\n10.4 Survival. Executive agrees that the provisions of this Agreement shall survive the termination of the\nService Period and the assignment of this Agreement by the Corporation to any successor-in-interest or other\nassignee, regardless of the reason or reasons for termination and whether such termination is voluntary or\ninvoluntary.\n10.5 Nature of Relationship. This Agreement shall not be deemed nor does it create an employment contract\nbetween the Corporation (or any of its subsidiaries or related companies) and Executive. Executive is an\nindependent contractor and shall not be deemed an employee of the Corporation for purposes of employee\nbenefits, income tax withholding, F.l.C.A. taxes, unemployment benefits or any other purpose. Executive's term of\nservice is defined in Section 7 of the Executive Retainer Agreement between Executive and the Company signed\nconcurrently herewith.\n10.6 Waiver. No waiver by the Corporation of any breach of this Agreement shall be a waiver of any preceding\nor succeeding breach. No waiver by the Corporation of any right under this Agreement shall be construed as a\nwaiver of any other right. The Corporation shall not be required to give notice to enforce strict adherence to all\nterms of this Agreement.\n10.7 Advice of Counsel. Executive acknowledges that, in executing this Agreement, Executive has had the\nopportunity to seek the advice of independent legal counsel, and Executive has read and understood all of the\nterms and provisions of this Agreement. This Agreement shall not be construed against any party by reason of the\ndrafting or preparation hereof.\n10.8 Modification. This Agreement may not be changed, modified, released, discharged, abandoned or\notherwise amended, in whole or in part, except by an instrument in writing, signed by Executive and the\nCorporation. Executive agrees that any subsequent change or changes in Executive's duties, salary, or\ncompensation shall not affect the validity or scope of this Agreement.\n10.9 Entire Agreement. The obligations of this Agreement shall apply to any time during which Executive\npreviously provided service, or will in the future provide service, to the Corporation as a consultant or agent if no\nother agreement governs nondisclosure and assignment of inventions during such period. This Agreement is the\nfinal, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes\nand merges all prior discussions between us. No modification of or amendment to this Agreement, nor any waiver\nof any rights under this Agreement, will be effective unless in writing and signed by the party to be charged. The\nheadings in this Agreement are used for convenience only and are not to be considered a part of this Agreementor\nbe used to interpret the meaning ofany part of this Agreement.\n10.10 Counterparts. This Agreement may be signed in two counterparts, each shall be deemed an original\nand both of which shall together constitute one agreement. The parties hereto agree to accept a facsimile\ntransmission copy of their respective actual signatures as evidence of their actual signatures to this Agreement and\nany modification or amendment of this Agreement; provided, however, that each party who produces a facsimile\nsignature agrees, by the express terms hereof, to place, promptly aftertransmission of his or her signature by fax, a\ntrue and correct original copy of his or her signature in overnight mail to the address of the other party.\n[The remainder of this page has been intentionally left blank. Signature page(s) to follow]\nA-5\nI HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE COMPLETELY FILLED\nOUT ATTACHMENT B TO THIS AGREEMENT. NO PROMISES OR REPRESENTATIONS HAVE BEEN MADE TO ME\nTO INDUCE ME TO SIGN THIS AGREEMENT. I SIGN THIS AGREEMENT VOLUNTARILY AND FREELY.\nDated:\nBy:\nPrinted NarrWing LokJ onathan 50\nACCEPTED AND AGREED TO:\nCOSMOS GROUP HOLDINGS, INC.\nBy: MikyY.C.Wan\n \nIts: Chief Executive Officer, Interim Chief Financial\nOfficer and President\n \nSignature Page to Proprietary Information, Inventions and Non-Competition Agreement\nA-6	EXHIBIT A\nPROPRIETARY INFORMATION, INVENTIONS AND NON-COMPETITION AGREEMENT\nThis PROPRIETARY INFORMATION, INVENTIONS and NON-COMPETITION AGREEMENT (the "Agreement") is\nmade and entered into as of J uly 19, 2019 (the "Effective Date"), by and between Cosmos Group Holdings, a Nevada\ncorporation ("Corporation") and Wing Lok J onathan SO ("E xecutive").\nRECITALS\nWHEREAS, the parties desire to assure the confidentia status and proprietary nature of the information which may\nbe disclosed by Corporation to the Executive; and\nAGREEMENT\nNOW THEREFORE, in reliance upon and in consideration of the following undertaking, the parties agree as follows:\n1. Nondisclosure.\n1.1 Recognition of Corporation's Rights; Nondisclosure. At all times during the period of time Executive is\nengaged as a consultant, independent contractor or employee of the Corporation ("Service Period") and provides\nthe necessary and requested services in such capacity ("Services"), Executive will hold in strictest confidence and\nwill not disclose, use, lecture upon or publish any of the Corporation's roprietary Information (defined below),\nexcept as such disclosure, use or publication may be required in connection with Service to the Corporation, or\nunless the Corporation expressly authorizes such disclosure in writing. Executive will obtain Corporation's written\napproval before publishing or submitting for publication any material (written, verbal, or otherwise) that relates to\nServices and/or incorporates any Proprietary Information. Executive hereby assigns to the Corporation any rights\nExecutive may have or acquire in such Proprietary Information and recognizes that all roprietary Information shall\nbe the sole property of the Corporation and its assigns.\n1.2 Proprietary Information. The term "Proprietary Information" shall mean any and all confidential and/or\nproprietary knowledge, data or information of the Corporation, including that which Executive may produce in\nservice to the Corporation. By way of illustration but not limitation, "Proprietary Information" includes (a) trade\nsecrets, inventions, mask works, ideas, processes, formulas, source and object codes, data, programs, other works\nof authorship, know-how, improvements, discoveries, developments, designs and techniques (hereinafter\ncollectively referred to as "Inventions"); and (b) information regarding plans for research, development, new\nproducts, marketing and selling, business plans, budgets and unpublished financial statements, pricing strategies,\nlicenses, prices and costs, suppliers and customers; and (c) information regarding the skills and compensation of\nother service providers of the Corporation.\n1.3 Third Party Information. Executive understands, in addition, that the Corporation has received and in the\nfuture will receive from third parties, including clients, customers, consultants, licensees or affiliates, confidential or\nproprietary information ("Third Party Information"). Executive understands that the Corporation has a duty to\nmaintain the confidentiality of such Third Party Information and to use it only for certain limited purposes. During the\nService Period and thereafter, Executive wil hold Third Party Information in the strictest confidence and wil not\ndisclose Third Party Information to anyone (other than Corporation personnel who need to know such information in\nconnection with their work for the Corporation) or use Third Party Information (except in connection with the\nperformance of Executive's Services for the Corporation), unless expressly authorized by the Corporation in writing.\n1.4 No Improper Use of Information of Prior Employers and Others. During the Service Period, Executive will\nnot improperly use or disclose any confidential information or trade secrets, if any, of any former or current\nemployer or any other person to whom Executive has an obligation of confidentiality, and Executive will not bring\nonto the Corporation premises any unpublished documents or any property belonging to any former or current\nemployer or any other person to whom Executive has an obligation of confidentiality unless consented to in writing\nby that former or current employer or person. In the performance of his duties, Executive will only use information\nwhich is generally known and used by persons with training and experience comparable to his own, which is\ncommon knowledge in the industry or otherwise legally in the public domain, or which is otherwise provided or\ndeveloped by the Corporation.\nA-1\n2. Assignment of Inventions.\n2.1 Proprietary Rights. The term "Proprietary Rights" shall mean all trade secrets, patent, copyright, mask\nwork and other intellectual property rights throughout the world.\n2.2 Prior Inventions. Inventions, if any, patented or unpatented, which Executive made prior to the\ncommencement of the Service Period are excluded from the scope of this Agreement. To preclude any possible\nuncertainty, Executive has set forth on Attachment B Previous Inventions) attached hereto a complete list of all\nInventions that Executive has or caused to be (alone or jointly with others) conceived, developed or reduced to\npractice prior to the commencement of the Service Period, that Executive considers to be his property or the\nproperty of third parties and that Executive wishes to have excluded from the scope of this Agreement (collectively\nreferred to as "Prior Inventions"). If such disclosure would cause Executive to violate any prior confidentiality\nagreement, Executive shall not list such Prior Inventions in Attachment B but only disclose a cursory name for each\nsuch Invention, a listing of the party(ies) to whom it belongs and the fact that full disclosure as to such inventions\nhas not been made for that reason. A space is provided on Attachment B for such purpose. If no such disclosure is\nattached, Executive represents that there are no Prior Inventions. If, during the Service Period, Executive\nincorporates a Prior Invention into a Corporation product, process or machine, the Corporation is hereby granted\nand shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with rights to sublicense\nthrough multiple tiers of sublicensees) to make, have made, modify, use and sell such Prior Invention.\nNotwithstanding the foregoing, Executive agrees that he will not incorporate, or permit to be incorporated, Prior\nInventions in any Corporation Inventions without the Corporation's prior written consent.\n2.3 Assignment of Inventions. Subject to Sections 2.4 and 2.6, Executive hereby assigns, and agrees to\nassign in the future when any such Inventions or Proprietary Rights are first reduced to practice or first fixed in\na\ntangible medium, as applicable, to the Corporation all right, title and interest in and to any and all Inventions (and all\nProprietary Rights with respect thereto) whether or not patentable or registrable under copyright or similar statutes,\nmade or conceived or reduced to practice or learned by Executive, either alone or jointly with others, during the\nService Period. Inventions assigned to the Corporation, or to a third party as directed by the Corporation pursuant\nto this Section 2, are hereinafter referred to as "Corporation Inventions."\n2.4 Non-assignable Inventions. This Agreement does not apply to an Invention which the Executive developed\nentirely on his or her own time without using the Company's equipment, supplies, facilities, or trade secret\ninformation except for those inventions that either:\nRelate at the time of conception or reduction to practice of the invention to the Company's business, or\nactual or demonstrably anticipated research or development of the Company; or\nResult from any Services performed by the Executive for the Company.\n2.5. Limited Exclusion Notification. Executive has reviewed the notification on Attachment A (Limited\nExclusion Notification) and agrees that his signature acknowledges receipt of the notification.\n2.6 Obligation to Keep Corporation Informed. During the Service Period, and for twelve (12) months after\ntermination of the Service Period, xecutive will fully disclose in writing to the Corporation all Inventions authored,\nconceived or reduced to practice by Executive, either alone or jointly with others, within no more than thirty\n(30) days after creation. In addition, Executive will disclose to the Corporation all patent applications filed within a\nyear after termination of the Service Period by Executive, or on his behalf, within no more than thirty (30) days after\nfiling. At the time of each such disclosure, Executive will advise the Corporation in writing of any Inventions that he\nbelieves fully qualify for exemption under Section 2.4 of this Agreement, and Executive will, at that time, provide all\nwritten evidence necessary to substantiate that belief. The Corporation will keep in confidence and will not use for\nany purpose or disclose to third parties without Executive's consent any confidential information disclosed in writing\nto the Corporation pursuant to this Agreement relating to Inventions that qualify fully for exemption under the\nprovisions of Section 2.4 of this Agreement. Executive will preserve the confidentiality of any Invention that does not\nfully qualify for exemption under Section 2.4 of this Agreement.\nA-2\n2.7 Works for Hire. Executive acknowledges that all original works of authorship which are made by xecutive\n(solely or jointly with others) within the scope of Service and which are protectable by copyright are "works made for\nhire," pursuant to United States Copyright Act (17 U.S.C., Section 101) and shall be the sole property of the\nCorporation.\n2.8 Enforcement of Proprietary Rights. Executive will assist the Corporation or its nominee, to obtain and\nenforce United States and foreign Proprietary Rights relating to Corporation Inventions in any and all countries, and\nsuch Proprietary Rights and Corporation Inventions shall be and remain the sole and exclusive property of the\nCorporation, or its nominee, whether or not patented or copyrighted. Accordingly, Executive will promptly execute,\nverify and deliver such documents and perform such other acts (including appearances as a witness and assistance\nor cooperation in legal proceedings) as the Corporation may reasonably request in applying for, obtaining,\nperfecting, evidencing, sustaining and enforcing such Proprietary Rights and the assignment thereof. This obligation\nshall survive and continue beyond the termination of the Service Period, but the Corporation shall compensate\nExecutive at a reasonable rate after his termination for the time actually spent providing such assistance.\n2.9 Appointment of Corporation as Agent. If, after reasonable effort, the Corporation is unable to secure\nExecutive's signature on any document needed in connection with the actions specified herein, xecutive hereby\nirrevocably designates and appoints the Corporation and its duly authorized officers and agents as Executive's\nagents and attorneys-in-fact, which appointment is coupled with an interest, to act for and in Executive's behalf to\nexecute, verify and file any such documents and to do all other lawfully permitted acts to further the purposes of this\nAgreement with the same legal force and effect as if executed by Executive. Executive hereby waives and\nquitclaims to the Corporation any and all claims, of any nature whatsoever, which Executive now or may hereafter\nhave for infringement of any Proprietary Rights assigned hereunder to the Corporation\n3. Records.\nExecutive agrees to keep and maintain adequate and current records (in the form of notes, sketches, drawings and\nin any other form that may be required by the Corporation) of all roprietary Information developed by Executive\nand all Inventions made by Executive during the Service Period, which records shall be available to and remain the\nsole property of the Corporation at all times.\n4.\nNon-Competition Obligation.\nExecutive agrees that during the Service Period, Executive will not provide any services or engage in any\nemployment or business activity which is competitive with, or would otherwise conflict with, Executive's Service to\nthe Corporation, without the Corporation's express written consent. Executive agrees further that during the Service\nPeriod and for two (2) years after the termination of the Service Period, Executive wil not, either directly or through\nothers, use trade secret information of the Company to solicit or attempt to solicit any customer, vendor, employee,\nindependent contractor or consultant of the Corporation to terminate his or her relationship with the Corporation in\norder to become a customer, vendor, employee, consultant or independent contractor to or for any other person or\nentity including, without limitation, Executive.\n5.\nNon-Solicitation With the Corporation.\nExecutive covenants and agrees that, for a period of two (2) years following termination of the Service Period,\nExecutive will not use trade secret information of the Corporation to solicit or engage in competitive business with\nCorporation's existing or potential vendors or customers at the time of his separation from the Corporation and\nExecutive will not encourage or solicit any customer, vendor, employee or consultant to leave the Corporation for\nany reason.\nA-3\n6. No Conflicting Obligation.\nExecutive represents that his performance of all the terms of this Agreement and as an executive to the Corporation\ndoes not and will not breach any agreement to keep information acquired by Executive prior to the Service Period in\nconfidence or trust. Executive has not entered into, and agrees he will not enter into, any agreement either written\nor oral in conflict herewith.\n7. Return of Corporation Documents.\nUpon termination of the Service Period, Executive will deliver to the Corporation any and all drawings, notes,\nmemoranda, specifications, devices, formulas, and documents, together with all copies thereof, and any other\nmateria containing, comprising or disclosing any Corporation Inventions, roprietary Information and Third Party\nInformation. Executive further agrees that any property situated on the Corporation's premises and owned by the\nCorporation, including disks and other storage media, filing cabinets or other work areas, is subject to inspection by\nthe Corporation at any time with or without notice. Prior to leaving, Executive will cooperate with the Corporation in\ncompleting and signing the Corporation's termination statement which will include, at a minimum, the certifications\nset forth in Attachment C.\n8. Legal and Equitable Remedies.\nBecause Executive's services are personal and unique and because Executive may have access to and become\nacquainted with the Proprietary Information of the Corporation, the Corporation shall have the right to enforce this\nAgreement and any of its provisions by injunction, specific performance or other equitable relief, without bond and\nwithout prejudice to any other rights and remedies that the Corporation may have for a breach of this Agreement\n9. Notices.\nAny notices required or permitted hereunder shall be given to the appropriate party at the address specified below\nor at such other address as the party shall specify in writing. Such notice shall be deemed given upon persona\ndelivery to the appropriate address or, if sent by certified or registered mail, three (3) days after the date of mailing.\n10. General Provisions.\n10.1 Governing Law; Consent to Personal urisdiction; Attorney's Fees. This Agreement and the legal\nrelations among the parties shall be governed by, and construed and enforced in accordance with, the laws of the\nState of Nevada, without regard to its conflict of laws rules. The Corporation and Executive hereby irrevocably and\nunconditionally (i) agree that any action or proceeding arising out of or in connection with this Agreement shall be\nbrought only in the State of Nevada (the "Nevada Court"), and not in any other state or federal court in the United\nStates of America or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Nevada\nCourt for purposes of any action or proceeding arising out of or in connection with this Agreement, and (iii) waive\nany objection to the laying of venue of any such action or proceeding in the Nevada Court and (iv) waive, and agree\nnot to plead or to make, any claim that any such action or proceeding brought in the Nevada Court has been\nbrought in an improper or inconvenient forum.\n10.2 Severability. If one or more of the provisions contained in this Agreement shall, for any reason, be held to\nbe invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the\nother provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or\nunenforceable provision had never been contained herein. If, moreover, any one or more of the provisions\ncontained in this Agreement shall for any reason be held to be excessively broad as to duration, geographica\nscope, activity or subject, it shall be construed by limiting and reducing it, SO as to be enforceable to the extent\ncompatible with the applicable law as it shall then appear.\nA-4\n10.3 Successors and Assigns. This Agreement will be binding upon Executive's heirs, executors,\nadministrators and other legal representatives and will be for the benefits of the Corporation, its successors, and its\nassigns.\n10.4 Survival. Executive agrees that the provisions of this Agreement shall survive the termination of the\nService Period and the assignment of this Agreement by the Corporation to any successor-in-interest or other\nassignee, regardless of the reason or reasons for termination and whether such termination is voluntary or\ninvoluntary.\n10.5 Nature of Relationship. This Agreement shall not be deemed nor does it create an employment contract\nbetween the Corporation (or any of its subsidiaries or related companies) and Executive. Executive is an\nindependent contractor and shall not be deemed an employee of the Corporation for purposes of employee\nbenefits, income tax withholding, F.I.C.A. taxes, unemployment benefits or any other purpose. Executive's term of\nservice is defined in Section 7 of the Executive Retainer Agreement between Executive and the Company signed\nconcurrently herewith.\n10.6 Waiver. No waiver by the Corporation of any breach of this Agreement shall be a waiver of any preceding\nor succeeding breach. No waiver by the Corporation of any right under this Agreement shall be construed as a\nwaiver of any other right. The Corporation shall not be required to give notice to enforce strict adherence to all\nterms of this Agreement.\n10.7 Advice of Counsel. Executive acknowledges that, in executing this Agreement, Executive has had the\nopportunity to seek the advice of independent legal counsel, and Executive has read and understood all of the\nterms and provisions of this Agreement. This Agreement shall not be construed against any party by reason of the\ndrafting or preparation hereof.\n10.8 Modification. This Agreement may not be changed, modified, released, discharged, abandoned or\notherwise amended, in whole or in part, except by an instrument in writing, signed by Executive and the\nCorporation. Executive agrees that any subsequent change or changes in Executive's duties, salary, or\ncompensation shall not affect the validity or scope of this Agreement.\n10.9 Entire Agreement. The obligations of this Agreement shall apply to any time during which Executive\npreviously provided service, or will in the future provide service, to the Corporation as a consultant or agent if no\nother agreement governs nondisclosure and assignment of inventions during such period. This Agreement is the\nfinal, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes\nand merges all prior discussions between us. No modification of or amendment to this Agreement, nor any waiver\nof any rights under this Agreement, wil be effective unless in writing and signed by the party to be charged. The\nheadings in this Agreement are used for convenience only and are not to be considered a part of this Agreement or\nbe used to interpret the meaning of any part of this Agreement.\n10.10 Counterparts. This Agreement may be signed in two counterparts, each shall be deemed an original\nand both of which shall together constitute one agreement. The parties hereto agree to accept a facsimile\ntransmission copy of their respective actual signatures as evidence of their actual signatures to this Agreement and\nany modification or amendment of this Agreement; provided, however, that each party who produces a facsimile\nsignature agrees, by the express terms hereof, to place, promptly after transmission of his or her signature by fax, a\ntrue and correct original copy of his or her signature in overnight mail to the address of the other party.\n[The remainder of this page has been intentionally left blank. Signature page(s) to follow]\nA-5\nI HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE COMPLETELY FILLED\nOUT ATTACHMENT B TO THIS AGREEMENT. NO PROMISES OR REPRESENTATIONS HAVE BEEN MADE TO ME\nTO INDUCE ME TO SIGN THIS AGREEMENT. I SIGN THIS AGREEMENT VOLUNTARILY AND FREELY.\nDated:\nBy:\nPrinted Naming LokJ onathan SO\nACCEPTED AND AGREED TO:\nCOSMOS GROUP HOLDINGS, INC.\nBy:\nMiky Y.C. Wan\nIts:\nChief Executive Officer, Interim Chief Financial\nOfficer and President\nSignature Page to Proprietary Information, Inventions and Non-Competition Agreement\nA-6	EXHIBIT A\nPROPRIETARY INFORMATION, INVENTIONS AND NON-COMPETITION AGREEMENT\nThis PROPRIETARY INFORMATION, INVENTIONS and NON-COMPETITION AGREEMENT (the “Agreement”) is\nmade and entered into as of July 19, 2019 (the “Effective Date”), by and between Cosmos Group Holdings, a Nevada\ncorporation (“Corporation”) and Wing Lok Jonathan SO (“Executive”).\nRECITALS\nWHEREAS, the parties desire to assure the confidential status and proprietary nature of the information which may\nbe disclosed by Corporation to the Executive; and\nAGREEMENT\nNOW THEREFORE, in reliance upon and in consideration of the following undertaking, the parties agree as follows:\n1. Nondisclosure.\n1.1 Recognition of Corporation’s Rights; Nondisclosure. At all times during the period of time Executive is\nengaged as a consultant, independent contractor or employee of the Corporation (“Service Period”) and provides\nthe necessary and requested services in such capacity (“Services”), Executive will hold in strictest confidence and\nwill not disclose, use, lecture upon or publish any of the Corporation’s Proprietary Information (defined below),\nexcept as such disclosure, use or publication may be required in connection with Service to the Corporation, or\nunless the Corporation expressly authorizes such disclosure in writing. Executive will obtain Corporation’s written\napproval before publishing or submitting for publication any material (written, verbal, or otherwise) that relates to\nServices and/or incorporates any Proprietary Information. Executive hereby assigns to the Corporation any rights\nExecutive may have or acquire in such Proprietary Information and recognizes that all Proprietary Information shall\nbe the sole property of the Corporation and its assigns.\n1.2 Proprietary Information. The term “Proprietary Information” shall mean any and all confidential and/or\nproprietary knowledge, data or information of the Corporation, including that which Executive may produce in\nservice to the Corporation. By way of illustration but not limitation, “Proprietary Information” includes (a) trade\nsecrets, inventions, mask works, ideas, processes, formulas, source and object codes, data, programs, other works\nof authorship, know-how, improvements, discoveries, developments, designs and techniques (hereinafter\ncollectively referred to as “Inventions”); and (b) information regarding plans for research, development, new\nproducts, marketing and selling, business plans, budgets and unpublished financial statements, pricing strategies,\nlicenses, prices and costs, suppliers and customers; and (c) information regarding the skills and compensation of\nother service providers of the Corporation.\n1.3 Third Party Information. Executive understands, in addition, that the Corporation has received and in the\nfuture will receive from third parties, including clients, customers, consultants, licensees or affiliates, confidential or\nproprietary information (“Third Party Information”). Executive understands that the Corporation has a duty to\nmaintain the confidentiality of such Third Party Information and to use it only for certain limited purposes. During the\nService Period and thereafter, Executive will hold Third Party Information in the strictest confidence and will not\ndisclose Third Party Information to anyone (other than Corporation personnel who need to know such information in\nconnection with their work for the Corporation) or use Third Party Information (except in connection with the\nperformance of Executive’s Services for the Corporation), unless expressly authorized by the Corporation in writing.\n1.4 No Improper Use of Information of Prior Employers and Others. During the Service Period, Executive will\nnot improperly use or disclose any confidential information or trade secrets, if any, of any former or current\nemployer or any other person to whom Executive has an obligation of confidentiality, and Executive will not bring\nonto the Corporation premises any unpublished documents or any property belonging to any former or current\nemployer or any other person to whom Executive has an obligation of confidentiality unless consented to in writing\nby that former or current employer or person. In the performance of his duties, Executive will only use information\nwhich is generally known and used by persons with training and experience comparable to his own, which is\ncommon knowledge in the industry or otherwise legally in the public domain, or which is otherwise provided or\ndeveloped by the Corporation.\nA-1\n2. Assignment of Inventions.\n2.1 Proprietary Rights. The term “Proprietary Rights” shall mean all trade secrets, patent, copyright, mask\nwork and other intellectual property rights throughout the world.\n2.2 Prior Inventions. Inventions, if any, patented or unpatented, which Executive made prior to the\ncommencement of the Service Period are excluded from the scope of this Agreement. To preclude any possible\nuncertainty, Executive has set forth on Attachment B (Previous Inventions) attached hereto a complete list of all\nInventions that Executive has or caused to be (alone or jointly with others) conceived, developed or reduced to\npractice prior to the commencement of the Service Period, that Executive considers to be his property or the\nproperty of third parties and that Executive wishes to have excluded from the scope of this Agreement (collectively\nreferred to as “Prior Inventions”). If such disclosure would cause Executive to violate any prior confidentiality\nagreement, Executive shall not list such Prior Inventions in Attachment B but only disclose a cursory name for each\nsuch Invention, a listing of the party(ies) to whom it belongs and the fact that full disclosure as to such inventions\nhas not been made for that reason. A space is provided on Attachment B for such purpose. If no such disclosure is\nattached, Executive represents that there are no Prior Inventions. If, during the Service Period, Executive\nincorporates a Prior Invention into a Corporation product, process or machine, the Corporation is hereby granted\nand shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with rights to sublicense\nthrough multiple tiers of sublicensees) to make, have made, modify, use and sell such Prior Invention.\nNotwithstanding the foregoing, Executive agrees that he will not incorporate, or permit to be incorporated, Prior\nInventions in any Corporation Inventions without the Corporation’s prior written consent.\n2.3 Assignment of Inventions. Subject to Sections 2.4 and 2.6, Executive hereby assigns, and agrees to\nassign in the future when any such Inventions or Proprietary Rights are first reduced to practice or first fixed in a\ntangible medium, as applicable, to the Corporation all right, title and interest in and to any and all Inventions (and all\nProprietary Rights with respect thereto) whether or not patentable or registrable under copyright or similar statutes,\nmade or conceived or reduced to practice or learned by Executive, either alone or jointly with others, during the\nService Period. Inventions assigned to the Corporation, or to a third party as directed by the Corporation pursuant\nto this Section 2, are hereinafter referred to as “Corporation Inventions.”\n2.4 Non-assignable Inventions. This Agreement does not apply to an Invention which the Executive developed\nentirely on his or her own time without using the Company’s equipment, supplies, facilities, or trade secret\ninformation except for those inventions that either:\n•\nRelate at the time of conception or reduction to practice of the invention to the Company’s business, or\nactual or demonstrably anticipated research or development of the Company; or\n•\nResult from any Services performed by the Executive for the Company.\n2.5. Limited Exclusion Notification. Executive has reviewed the notification on Attachment A (Limited\nExclusion Notification) and agrees that his signature acknowledges receipt of the notification.\n2.6 Obligation to Keep Corporation Informed. During the Service Period, and for twelve (12) months after\ntermination of the Service Period, Executive will fully disclose in writing to the Corporation all Inventions authored,\nconceived or reduced to practice by Executive, either alone or jointly with others, within no more than thirty\n(30) days after creation. In addition, Executive will disclose to the Corporation all patent applications filed within a\nyear after termination of the Service Period by Executive, or on his behalf, within no more than thirty (30) days after\nfiling. At the time of each such disclosure, Executive will advise the Corporation in writing of any Inventions that he\nbelieves fully qualify for exemption under Section 2.4 of this Agreement, and Executive will, at that time, provide all\nwritten evidence necessary to substantiate that belief. The Corporation will keep in confidence and will not use for\nany purpose or disclose to third parties without Executive’s consent any confidential information disclosed in writing\nto the Corporation pursuant to this Agreement relating to Inventions that qualify fully for exemption under the\nprovisions of Section 2.4 of this Agreement. Executive will preserve the confidentiality of any Invention that does not\nfully qualify for exemption under Section 2.4 of this Agreement.\nA-2\n2.7 Works for Hire. Executive acknowledges that all original works of authorship which are made by Executive\n(solely or jointly with others) within the scope of Service and which are protectable by copyright are “works made for\nhire,” pursuant to United States Copyright Act (17 U.S.C., Section 101) and shall be the sole property of the\nCorporation.\n2.8 Enforcement of Proprietary Rights. Executive will assist the Corporation, or its nominee, to obtain and\nenforce United States and foreign Proprietary Rights relating to Corporation Inventions in any and all countries, and\nsuch Proprietary Rights and Corporation Inventions shall be and remain the sole and exclusive property of the\nCorporation, or its nominee, whether or not patented or copyrighted. Accordingly, Executive will promptly execute,\nverify and deliver such documents and perform such other acts (including appearances as a witness and assistance\nor cooperation in legal proceedings) as the Corporation may reasonably request in applying for, obtaining,\nperfecting, evidencing, sustaining and enforcing such Proprietary Rights and the assignment thereof. This obligation\nshall survive and continue beyond the termination of the Service Period, but the Corporation shall compensate\nExecutive at a reasonable rate after his termination for the time actually spent providing such assistance.\n2.9 Appointment of Corporation as Agent. If, after reasonable effort, the Corporation is unable to secure\nExecutive’s signature on any document needed in connection with the actions specified herein, Executive hereby\nirrevocably designates and appoints the Corporation and its duly authorized officers and agents as Executive’s\nagents and attorneys-in-fact, which appointment is coupled with an interest, to act for and in Executive’s behalf to\nexecute, verify and file any such documents and to do all other lawfully permitted acts to further the purposes of this\nAgreement with the same legal force and effect as if executed by Executive. Executive hereby waives and\nquitclaims to the Corporation any and all claims, of any nature whatsoever, which Executive now or may hereafter\nhave for infringement of any Proprietary Rights assigned hereunder to the Corporation.\n3. Records.\nExecutive agrees to keep and maintain adequate and current records (in the form of notes, sketches, drawings and\nin any other form that may be required by the Corporation) of all Proprietary Information developed by Executive\nand all Inventions made by Executive during the Service Period, which records shall be available to and remain the\nsole property of the Corporation at all times.\n4. Non-Competition Obligation.\nExecutive agrees that during the Service Period, Executive will not provide any services or engage in any\nemployment or business activity which is competitive with, or would otherwise conflict with, Executive’s Service to\nthe Corporation, without the Corporation’s express written consent. Executive agrees further that during the Service\nPeriod and for two (2) years after the termination of the Service Period, Executive will not, either directly or through\nothers, use trade secret information of the Company to solicit or attempt to solicit any customer, vendor, employee,\nindependent contractor or consultant of the Corporation to terminate his or her relationship with the Corporation in\norder to become a customer, vendor, employee, consultant or independent contractor to or for any other person or\nentity including, without limitation, Executive.\n5. Non-Solicitation With the Corporation.\nExecutive covenants and agrees that, for a period of two (2) years following termination of the Service Period,\nExecutive will not use trade secret information of the Corporation to solicit or engage in competitive business with\nCorporation’s existing or potential vendors or customers at the time of his separation from the Corporation and\nExecutive will not encourage or solicit any customer, vendor, employee or consultant to leave the Corporation for\nany reason.\nA-3\n6. No Conflicting Obligation.\nExecutive represents that his performance of all the terms of this Agreement and as an executive to the Corporation\ndoes not and will not breach any agreement to keep information acquired by Executive prior to the Service Period in\nconfidence or trust. Executive has not entered into, and agrees he will not enter into, any agreement either written\nor oral in conflict herewith.\n7. Return of Corporation Documents.\nUpon termination of the Service Period, Executive will deliver to the Corporation any and all drawings, notes,\nmemoranda, specifications, devices, formulas, and documents, together with all copies thereof, and any other\nmaterial containing, comprising or disclosing any Corporation Inventions, Proprietary Information and Third Party\nInformation. Executive further agrees that any property situated on the Corporation’s premises and owned by the\nCorporation, including disks and other storage media, filing cabinets or other work areas, is subject to inspection by\nthe Corporation at any time with or without notice. Prior to leaving, Executive will cooperate with the Corporation in\ncompleting and signing the Corporation’s termination statement, which will include, at a minimum, the certifications\nset forth in Attachment C.\n8. Legal and Equitable Remedies.\nBecause Executive’s services are personal and unique and because Executive may have access to and become\nacquainted with the Proprietary Information of the Corporation, the Corporation shall have the right to enforce this\nAgreement and any of its provisions by injunction, specific performance or other equitable relief, without bond and\nwithout prejudice to any other rights and remedies that the Corporation may have for a breach of this Agreement.\n9. Notices.\nAny notices required or permitted hereunder shall be given to the appropriate party at the address specified below\nor at such other address as the party shall specify in writing. Such notice shall be deemed given upon personal\ndelivery to the appropriate address or, if sent by certified or registered mail, three (3) days after the date of mailing.\n10. General Provisions.\n10.1 Governing Law; Consent to Personal Jurisdiction; Attorney’s Fees. This Agreement and the legal\nrelations among the parties shall be governed by, and construed and enforced in accordance with, the laws of the\nState of Nevada, without regard to its conflict of laws rules. The Corporation and Executive hereby irrevocably and\nunconditionally (i) agree that any action or proceeding arising out of or in connection with this Agreement shall be\nbrought only in the State of Nevada (the “Nevada Court”), and not in any other state or federal court in the United\nStates of America or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Nevada\nCourt for purposes of any action or proceeding arising out of or in connection with this Agreement, and (iii) waive\nany objection to the laying of venue of any such action or proceeding in the Nevada Court and (iv) waive, and agree\nnot to plead or to make, any claim that any such action or proceeding brought in the Nevada Court has been\nbrought in an improper or inconvenient forum.\n10.2 Severability. If one or more of the provisions contained in this Agreement shall, for any reason, be held to\nbe invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the\nother provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or\nunenforceable provision had never been contained herein. If, moreover, any one or more of the provisions\ncontained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical\nscope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent\ncompatible with the applicable law as it shall then appear.\nA-4\n10.3 Successors and Assigns. This Agreement will be binding upon Executive’s heirs, executors,\nadministrators and other legal representatives and will be for the benefits of the Corporation, its successors, and its\nassigns.\n10.4 Survival. Executive agrees that the provisions of this Agreement shall survive the termination of the\nService Period and the assignment of this Agreement by the Corporation to any successor-in-interest or other\nassignee, regardless of the reason or reasons for termination and whether such termination is voluntary or\ninvoluntary.\n10.5 Nature of Relationship. This Agreement shall not be deemed nor does it create an employment contract\nbetween the Corporation (or any of its subsidiaries or related companies) and Executive. Executive is an\nindependent contractor and shall not be deemed an employee of the Corporation for purposes of employee\nbenefits, income tax withholding, F.I.C.A . taxes, unemployment benefits or any other purpose. Executive’s term of\nservice is defined in Section 7 of the Executive Retainer Agreement between Executive and the Company signed\nconcurrently herewith.\n10.6 Waiver. No waiver by the Corporation of any breach of this Agreement shall be a waiver of any preceding\nor succeeding breach. No waiver by the Corporation of any right under this Agreement shall be construed as a\nwaiver of any other right. The Corporation shall not be required to give notice to enforce strict adherence to all\nterms of this Agreement.\n10.7 Advice of Counsel. Executive acknowledges that, in executing this Agreement, Executive has had the\nopportunity to seek the advice of independent legal counsel, and Executive has read and understood all of the\nterms and provisions of this Agreement. This Agreement shall not be construed against any party by reason of the\ndrafting or preparation hereof.\n10.8 Modification. This Agreement may not be changed, modified, released, discharged, abandoned or\notherwise amended, in whole or in part, except by an instrument in writing, signed by Executive and the\nCorporation. Executive agrees that any subsequent change or changes in Executive’s duties, salary, or\ncompensation shall not affect the validity or scope of this Agreement.\n10.9 Entire Agreement. The obligations of this Agreement shall apply to any time during which Executive\npreviously provided service, or will in the future provide service, to the Corporation as a consultant or agent if no\nother agreement governs nondisclosure and assignment of inventions during such period. This Agreement is the\nfinal, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes\nand merges all prior discussions between us. No modification of or amendment to this Agreement, nor any waiver\nof any rights under this Agreement, will be effective unless in writing and signed by the party to be charged. The\nheadings in this Agreement are used for convenience only and are not to be considered a part of this Agreement or\nbe used to interpret the meaning of any part of this Agreement.\n10.10 Counterparts. This Agreement may be signed in two counterparts, each shall be deemed an original\nand both of which shall together constitute one agreement. The parties hereto agree to accept a facsimile\ntransmission copy of their respective actual signatures as evidence of their actual signatures to this Agreement and\nany modification or amendment of this Agreement; provided, however, that each party who produces a facsimile\nsignature agrees, by the express terms hereof, to place, promptly after transmission of his or her signature by fax, a\ntrue and correct original copy of his or her signature in overnight mail to the address of the other party.\n[The remainder of this page has been intentionally left blank. Signature page(s) to follow]\nA-5\nI HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE COMPLETELY FILLED\nOUT ATTACHMENT B TO THIS AGREEMENT. NO PROMISES OR REPRESENTATIONS HAVE BEEN MADE TO ME\nTO INDUCE ME TO SIGN THIS AGREEMENT. I SIGN THIS AGREEMENT VOLUNTARILY AND FREELY.\nDated:\nBy:\nPrinted Name:\nWing Lok Jonathan SO\nACCEPTED AND AGREED TO:\nCOSMOS GROUP HOLDINGS, INC.\nBy:\nMiky Y.C. Wan\nIts:\nChief Executive Officer, Interim Chief Financial\nOfficer and President\nSignature Page to Proprietary Information, Inventions and Non-Competition Agreement\nA-6
e5c3c29929ea5583d071e0c1d0e3b013.pdf	jurisdiction	Exhibit 10.13\nNON-SOLICITATION AND CONFIDENTIALITY AGREEMENT\n1. Parties. This Non-Solicitation and Confidentiality Agreement (the “Agreement”) is entered into by Pulaski Financial Corp. , its present and future subsidiaries, affiliates, and assigns (collectively hereinafter “Employer”) and\n________________\n(hereinafter “Employee”). In consideration of the granting of stock option awards to Employee for shares of stock in Pulaski Financial by the Board of Directors of Pulaski Financial, pursuant to the recommendation of\nthe Compensation Committee at its meeting on November 30, 2007, and Employee’s employment or continued employment by the Employer, access to some of Employer’s confidential information, and other good and sufficient\nconsideration, receipt of which is hereby acknowledged, the Employee agrees to the terms of this Agreement.\n2. Employee Acknowledgment. Employee acknowledges that Employer’s relationships with its customers, employees and other business associations are among Employer’s most important assets, and that developing, maintaining and\ncontinuing these relationships is one of Employer’s highest priorities. Employee further understands that he or she will be relied upon to develop and maintain the goodwill of these relationships on behalf of the Employer throughout the\ncourse of the employment relationship. Employee further acknowledges and agrees that the restrictions in this Agreement are reasonable to protect Employer’s rights under this Agreement and to safeguard the Company’s confidential\ninformation and aforementioned relationships.\n3. Non-Solicitation of Referral Sources and Customers of Employer. During Employee’s employment with Employer and, if Employee terminates his/her employment with Employer for any reason, or if Employer terminates\nEmployee’s employment for cause, for a period of one (1) year after the date of such termination (the “Termination Date”), Employee agrees that he or she will not, directly or indirectly, by any means or device whatsoever, for any\nperson, business or entity in competition with or providing the same services as Employer, call upon, solicit, divert, or accept business from any customers of Employer who were customers of Employer at any time during the one year\nperiod preceding Employee’s Termination Date, and with which Employee had contact during his or her employment with Employer or about which Employee became aware during Employee’s employment with Employer.\n4. Non-Solicitation of Employees. During Employee’s employment with Employer and, if Employee terminates his/her employment with Employer for any reason, or if Employer terminates Employee’s employment for cause, for a\nperiod of one (1) year after the Termination Date, Employee will not, directly or indirectly, either for Employee or for any other person, firm, employer or corporation: (1) call upon, solicit, divert, or hire, or attempt to solicit, divert, or\nhire any of the employees of Employer or (2) call upon, solicit, divert, or hire or attempt to solicit, divert, or hire any former employee of the Employer during the first six months after such former employee’s termination of employment\nwith Employer.\n5. Return of Employer’s Records. Employee agrees that upon termination of Employee’s employment, for any reason whatsoever, Employee will immediately deliver to the Employer in good condition all records kept by Employee\ncontaining the names, addresses or any other information with regard to referral sources or customers of the Employer, or\nconcerning any operational, financial or other documents of Employer given to Employee during Employee’s employment with Employer. Employee also agrees that he or she will not retain any copies (whether hard copy or electronic) of\nthe foregoing information.\n6. Non-Disclosure by Employee. Employee acknowledges and agrees that any confidential information obtained by Employee while employed by the Employer, including but not limited to customer lists and customer contacts, referral\nlists and referral contacts, financial, promotional, marketing, training or operational information, and employment data is highly confidential, and is important to the Employer and to the effective operation of the Employer’s business.\nEmployee therefore agrees that while employed by the Employer, and at any time thereafter, Employee will make no disclosure of any kind, directly or indirectly, concerning any such confidential matters relating to the Employer or any\nof its activities.\n7. Change in Control. In the event that there is a change in control, the non-solicitation agreements in paragraphs 3 and 4 shall not be enforceable. For purposes of this Agreement, a “change in control” means any of the following\nevents:\na.\nMerger: The Employer merges into or consolidates with another entity, or merges another corporation into the Employer, and as a result, less than a majority of the combined voting power of the resulting\ncorporation immediately after the merger or consolidation is held by persons who were stockholders of the Employer immediately before the merger or consolidation;\nb.\nAcquisition of Significant Share Ownership: There is filed, or is required to be filed, a report on Schedule 13D or another form or schedule (other than Schedule 13G) required under Sections 13(d) or 14(d) of the\nSecurities Exchange Act of 1934, as amended, if the schedule discloses that the filing person or persons acting in concert has or have become the beneficial owner of 25% or more of a class of the Employer’s\nvoting securities, but this clause (b) shall not apply to beneficial ownership of Employer voting shares held in a fiduciary capacity by an entity of which the Employer directly or indirectly beneficially owns 50%\nor more of its outstanding voting securities;\nc.\nSale of Assets: The Employer sells to a third party all or substantially all of its assets.\n8. Enforcement. In the event of a breach or threatened breach by the Employee of the provisions of this Agreement, the Employer shall be entitled to obtain a restraining order and/or an injunction restraining the Employee from\nviolating this Agreement in any way. The availability of relief under this paragraph is not cumulative or exclusive and Employer shall have available all other remedies available in law or equity to enforce the terms of this Agreement.\n9. Attorneys’ Fees. In the event that there is a dispute or litigation concerning any aspect of this Agreement, the prevailing party shall be entitled to all costs, including reasonable attorneys’ fees, incurred in such dispute or litigation.\n2\n10. Interpretation of Agreement. The parties covenant that this Agreement shall be construed and governed by Missouri law. No provision of this Agreement shall be construed against any party because that party, or their counsel,\ndrafted the provision.\n11. Severability. It is further the intention of the parties hereto that this Agreement restrict the activities of Employee only to the extent necessary for the protection of the legitimate business interests of Employer, and the parties\nspecifically covenant and agree that should any of the provisions set forth herein be held to be too broad for such purpose or invalid or unenforceable, said provisions will be so interpreted and applied in such a narrower sense as shall be\nnecessary to make the same valid and enforceable. Furthermore, should any term or provision of this Agreement be deemed invalid or unenforceable for any reason, the remaining terms and provisions of this Agreement shall remain in\nfull force and effect.\n12. Jurisdiction and Venue. Any cause of action or litigation of any kind related to the enforceability of this Agreement or any of its terms shall exclusively be initiated in the St. Louis County Circuit Court, State of Missouri.\n13. Employee-at-will. Employer and Employee acknowledge and understand that Employee is an employee at-will and, as a consequence, either party may terminate the employment relationship at any time for any reason or no reason\nat all.\n14. Entire Agreement. This writing contains the whole and entire agreement of the parties and supersedes all prior and contemporaneous agreements, representations and understandings regarding the issues covered herein.\nAGREED AND ACCEPTED:\nEMPLOYEE:\nSigned:\nPrinted Name:\nDated:\nPULASKI FINANCIAL CORP.\nBy:\nIts:\nDated:\n3	Exhibit 10.13\nNON-SOLIC ITATION AND CONFIDENTIALITY AGREEMENT\n1. Parties. This Non-Solicitation and Confidentiality Agreement (the "A greement") is entered into by Pulaski Financial Corp, its present and future subsidiaries, affiliates, and assigns (collectively hereinafter "Employer") and\n,,,,,,,,,,,,,,,, (heminafter "Emp10yee”). In consideration of the granting of stock option awards to Employee for shares of stock in Pulaski Financial by the Board of Directors of Pulaski Financial, pursuant to the recommendation of\nthe Compensation Committee at its meeting on November 30, 2007, and Employee's employment or continued employment by the Employer, access to some of Employer s confidential information, and other good and sufficient\nconsideration, receipt of which is hereby acknowledged, the Employee agrees to the terms of this Agreement\n2. Employee Acknowledment. Employee acknowledges that Employer s relationships with its customers, employees and other business associations are among Employer“ 5 most impormnt assets, and that developing, maintaining and\ncontinuing these relationships is one of Employer“ 5 highest priorities. Employee further understands that he or she will be relied upon to develop and maintain the goodwill of these relationships on behalf of the Employer throughout the\ncourse of the employment relationship. Employee further acknowledges and agrees that the restrictions in this Agreement are reasonable to protect Employer’ s rights under this Agreement and to safeguard the Company' 5 confidential\ninformation and aforementioned relationships.\n3. Non-Solicitation of Referral Sources and Customers of Employer. During Employee's employment with Employer and, if Employee terminates his/her employment with Employer for any reason, or if Employer terminates\nEmployee’s employment for cause, for a period of one (1) year after the date of such termination (the "Termination Date"), Employee agrees that he or she will not, directly or indirectly, by any means or device whatsoever, for any\nperson, business or entity in competition with or providing the same services as Employer, call upon, solicit, divert, or accept business from any customers of Employer who were customers of Employer at any time during the one year\nperiod preceding Employee’s Termination Date, and with which Employee had contact during his or her employment with Employer or about which Employee hecarne aware during Employee’s employment with Employer.\n4. Non-Solicitation of Emplpyees. During Employee' s employment with Employer and, if Employee terminates his/her employment with Employer for any reason, or if Employer terminates Employee’ 5 employment for cause, for a\nperiod of one (1) year after the Termination Date, Employee will not, directly or indirectly, either for Employee or for any other person, firm, employer or corporation: (1) call upon, solicit, divert, or hire, or attempt to solicit, divert, or\nhire any of the employees of Employer or (2) call upon, solicit, divert, or hire or attempt to solicit, divert, or hire any former employee of the Employer during the first six months after such former employee's termination of employment\nwith Employer.\n5. Return of Employer‘s Records Employee agrees that upon termination of Employee's employment, for any reason whatsoever, Employee will immediately deliver to the Employer in good condition all records kept by Employee\ncontaining the names, addresses or any other information with regard to referral sources or customers of the Employer, or\nconcerning any operational, financial or other documents of Employer given to Employee during Employee’s employment with Employer. Employee also agrees that he or she will not retain any copies (whether hard copy or electronic) of\nthe foregoing information\n6. Non-Disclosure by Employee. Employee acknowledges and agrees that any confidential information obtained by Employee while employed by the Employer, including but not limited to customer lists and customer conmcts, referral\nlists and referral conmcts, financial, promotional, marketing, training or operational information, and employment dam is highly confidential, and is important to the Employer and to the effective operation of the Employer“ 5 business.\nEmployee therefore agrees that while employed by the Employer, and at any time thereafter, Employee will make no disclosure of any kind, directly or indirectly, conceming any such confidential matters relating to the Employer or any\nof its activities.\n7. Change in Control. In the event that there is a change in control, the non-solicitation agreements in paragraphs 3 and 4 shall not be enforceable For purposes of this Agreement, a “change in control” means any of the following\nSEVERE:\na. Merger: The Employer merges into or consolidates with another entity, or merges another corporation into the Employer, and as a result, less than a majority of the combined voting power of the resulting\ncorporation immediately after the merger or consolidation is held by persons who were stockholders of the Employer immediately before the merger or consolidation;\nb. Acggiisition of Significant Share Ownership: There is filed, or is required to be filed, a report on Schedule 13D or another form or schedule (other than Schedule 13G) required under Sections 13(d) or 14(d) of the\nSecurities Exchange Act of 1934, as amended, if the schedule discloses that the filing person or persons acting in concert has or have become the beneficial owner of 25% or more of a class of the Employer“ 5\nvoting securities, but this clause (b) shall not apply to beneficial ownership of Employer voting shares held in a fiduciary capacity by an entity of which the Employer directly or indirectly beneficially owns 50%\nor more of its outstanding voting securities;\nc. Sale of Assets: The Employer sells to a third party all or subsmntially all of its assets.\n8. Enforcement. In the event of a breach or threatened breach by the Employee of the provisions of this Agreement, the Employer shall be entitled to obtain a restraining order and/or an injunction restraining the Employee from\nviolating this Agreement in any way. The availability of relief under this paragraph is not cumulative or exclusive and Employer shall have available all other remedies available in law or equity to enforce the terms of this Agreement.\n9. Attomeys’ Fees. In the event that there is a dispute orlitigation concerning any aspect of this Agreement, the prevailing party shall be entitled to all costs, including reasonable attomeys' fees, incurred in such dispute or litigation.\n10‘ Integpretation of AgIeement. The parties covenant that this Agreement shall be construed and governed by Missouri law. No provision of this Agreement shall be construed against any party because that party, or their counsel,\ndrafted the provision:\n11‘ Severabilig. It is further the intention of the parties hereto that this Agreement restrict the activities of Employee only to the extent necessary for the protection of the legitimate business interests of Employer, and the parties\nspecifically covenant and agree that should any of the provisions set forth herein be held to be too broad for such purpose orinvalid or unenforceable, said provisions will be so interpreted and applied in such a narrower sense as shall be\nnecessary to make the same valid and enforceable. Furthermore, should any term or provision of this Agreement be deemed invalid or unenforceable for any reason, the remaining terms and provisions of this Agreement shall remain in\nfull force and effect\n12‘ [urisdiction and Venue. Any cause of action orlitigation of any kind related to the enforceability of this Agreement or any of its terms shall exclusively be initiated in the St Louis County Circuit Court, State of Missouri\n13‘ Employee-at—will. Employer and Employee acknowledge and understand that Employee is an employee at-will and, as a consequence, either party may terminate the employment relationship at any time for any reason or no reason\nat all:\n14‘ Entire Aggeement. This writing contains the whole and entire agreement of the parties and supersedes all prior and contemporaneous agreements, representations and understandings regarding the issues covered herein\nAGREED AND ACCEPTED:\nEMPLOY EE: PULASKI FINANCIAL CORR\nSigned: BY:\nPrinted Name: Its:\nDated: Dated:	Exhibit 10.13\nNON-SOLICITATION AND CONFIDENTIALITY AGREEMENT\n1. Parties. This Non-Solicitation and Confidentiality Agreement (the Agreement") is entered into by Pulaski Financial Corp. its present and future subsidiaries, affiliates, and assigns (collectively hereinafter "Employer") and\n(hereinafter "Employee"). In consideration of the granting of stock option awards to Employee for shares of stock in Pulaski Financial by the Board of Directors of Pulaski Financial pursuant to the recommendation of\nthe Compensation Committee at its meeting on November 30, 2007, and Employee's employment or continued employment by the Employer, access to some of Employer's confidentia information, and other good and sufficient\nconsideration, receipt of which is hereby acknowledged, the Employee agrees to the terms of this Agreement.\n2. Employee Acknowledgmen Employee ac cknowledges that Employer's relationships with its customers, employees and other business associations are among Employer's most important assets, and that developing, maintaining\nand\ncontinuing these relationships is one of Employer's highest priorities. Employee further understands that he or she will be relied upon to develop and maintain the goodwill of these relationships on behalf of the Employer throughout the\ncourse of the employment relationship. Employee further acknowledges and agrees that the restrictions in this Agreement are reasonable to protect Employer s rights under this Agreement and to safeguard the Company's confidential\ninformation and aforementioned relationships.\n3.\nNon-Solicitation of Referral Sources and Customers of Employer. During Employee's employment with Employer and if Employee terminates his/her employment with Employer for any reason, or if Employer terminates\nEmployee's employment for cause, for a period of one (1) year after the date of such termination (the "Termination Date"), Employee agrees that he or she wil not, directly or indirectly, by any means or device whatsoever, for any\nperson, business or entity in competition with or providing the same services as Employer, call upon, solicit divert, or accept business from any customers of Employer who were customers of Employer at any time during the one year\nperiod preceding Employee's Termination Date, and with which Employee had contact during his or her employment with Employer or about which Employee became aware during Employee's employment with Employer.\n4. Non-Solicitation of Employees. During Employee's employment with Employer and if Employee terminates his/her employment with Employer for any reason or if Employer terminates Employee's employment for cause, for\na\nperiod of one (1) year after the Termination Date Employee will not, directly or indirectly, either for Employee or for any other person, firm, employer or corporation (1) call upon solicit, divert, or hire, or attempt to solicit, divert or\nhire any of the employees of Employer or (2) call upon, solicit, divert, or hire or attempt to solicit, divert, or hire any former employee of the Employer during the first six months after such former employee's termination of employment\nwith Employer.\n5. Return of Employer's Records Employee agrees that upon termination of Employee's employment, for any reason whatsoever, Employee wil immediately deliver to the Employer in good condition all records kept by Employee\ncontaining the names, addresses or any other information with regard to referral sources or customers of the Employer, or\nconcerning any operational, financial or other documents of Employer given to Employee during Employee's employment with Employer. Employee also agrees that he or she will not retain any copies (whether hard copy or electronic of\nthe foregoing information\n6.\nNon-Disclosure by Employee. Employee acknowledges and agrees that any confidential information obtained by Employee while employed by the Employer, including but not limited to customer lists and customer contacts referral\nlists and referral contacts, financial, promotional, marketing, training or operational information, and employment data is highly confidential, and is important to the Employer and to the effective operation of the Employer' business.\nEmployee therefore agrees that while employed by the Employer, and at any time thereafter, Employee will make no disclosure of any kind, directly or indirectly, conceming any such confidential matters relating to the Employer or any\nof its activities.\n7. Change in Control In the event that there is a change in control, the non-solicitation agreements in paragraphs 3 and 4 shall not be enforceable. For purposes of this Agreement, a "change in control" means any of the following\nevents:\na.\nMerger: The Employer merges into or consolidates with another entity, or merges another corporation into the Employer, and as a result less than a majority of the combined voting power of the resulting\ncorporation immediately after the merger or consolidation is held by persons who were stockholders of the Employer immediately before the merger or consolidation;\nb.\nAcquisition of Significant Share Ownership: There is filed or is required to be filed, a report on Schedule 13D or another form or schedule (other than Schedule 13G) required under Sections 13(d) or 14(d) of the\nSecurities Exchange Ac ct of 1934, as amended if the schedule discloses that the filing person or persons acting in concert has or have become the beneficial owner of 25% or more of a class of the Employer's\nvoting securities, but this clause (b) shall not apply to beneficial ownership of Employer voting shares held in a fiduciary capacity by an entity of which the Employer directly or indirectly beneficially owns 50%\nor more of its outstanding voting securities;\nc.\nSale of Assets: The Employer sells to a third party all or substantially all of its assets.\n8. Enforcement. In the event of a breach or threatened breach by the Employee of the provisions of this Agreement the Employer shall be entitled to obtain a restraining order and/or an injunction restraining the Employee from\nviolating this A greement in any way. The availability of relief under this paragraph is not cumulative or exclusive and Employer shall have available all other remedies available in law or equity to enforce the terms of this Agreement.\n9. Attorneys Fees, In the event that there is a dispute or litigation concerning any aspect of this A greement, the prevailing party shall be entitled to all costs, including reasonable attorneys' fees, incurred in such dispute or litigation.\n2\n10. Interpretation of Agreement. The parties covenant that this Agreement shall be construed and govemed by Missouri law. No provision of this Agreement shall be construed against any party because that party, or their counsel,\ndrafted the provision.\n11. Severability. It is further the intention of the parties hereto that this Agreement restrict the activities of Employee only to the extent necessary for the protection of the legitimate business interests of Employer, and the parties\nspecifically covenant and agree that should any of the provisions set forth herein be held to be too broad for such purpose or invalid or unenforceable, said provisions will be so interpreted and applied in such a narrower sense as shall be\nnecessary to make the same valid and enforceable Furthermore should any term or provision of this A greement be deemed invalid or unenforceable for any reason, the remaining terms and provisions of this Agreement shall remain in\nfull force and effect.\n12. Jurisdiction and Venue. Any cause of action or litigation of any kind related to the enforceability of this Agreement or any of its terms shall exclusively be initiated in the St. Louis County Circuit Court, State of Missouri.\n13. Employee-at-will. Employer and Employee acknowledge and understand that Employee is an employee at-will and, as a consequence, either party may terminate the employment relationship at any time for any reason or no reason\nat all.\n14. Entire Agreement. This writing contains the whole and entire agreement of the parties and supersedes all prior and contemporaneous agreements, representations and understandings regarding the issues covered herein\nAGREED AND ACCEPTED:\nEMPLOY EE:\nPULASK FINANCIAL CORP.\nSigned:\nBy:\nPrinted Name:\nIts:\nDated:\nDated:\n3	Exhibit 10.13\nNON-SOLICITATION AND CONFIDENTIALITY AGREEMENT\n1. Parties. This Non-Solicitation and Confidentiality Agreement (the “Agreement”) is entered into by Pulaski Financial Corp. , its present and future subsidiaries, affiliates, and assigns (collectively hereinafter “Employer”) and\n________________\n(hereinafter “Employee”). In consideration of the granting of stock option awards to Employee for shares of stock in Pulaski Financial by the Board of Directors of Pulaski Financial, pursuant to the recommendation of\nthe Compensation Committee at its meeting on November 30, 2007, and Employee’s employment or continued employment by the Employer, access to some of Employer’s confidential information, and other good and sufficient\nconsideration, receipt of which is hereby acknowledged, the Employee agrees to the terms of this Agreement.\n2. Employee Acknowledgment. Employee acknowledges that Employer’s relationships with its customers, employees and other business associations are among Employer’s most important assets, and that developing, maintaining and\ncontinuing these relationships is one of Employer’s highest priorities. Employee further understands that he or she will be relied upon to develop and maintain the goodwill of these relationships on behalf of the Employer throughout the\ncourse of the employment relationship. Employee further acknowledges and agrees that the restrictions in this Agreement are reasonable to protect Employer’s rights under this Agreement and to safeguard the Company’s confidential\ninformation and aforementioned relationships.\n3. Non-Solicitation of Referral Sources and Customers of Employer. During Employee’s employment with Employer and, if Employee terminates his/her employment with Employer for any reason, or if Employer terminates\nEmployee’s employment for cause, for a period of one (1) year after the date of such termination (the “Termination Date”), Employee agrees that he or she will not, directly or indirectly, by any means or device whatsoever, for any\nperson, business or entity in competition with or providing the same services as Employer, call upon, solicit, divert, or accept business from any customers of Employer who were customers of Employer at any time during the one year\nperiod preceding Employee’s Termination Date, and with which Employee had contact during his or her employment with Employer or about which Employee became aware during Employee’s employment with Employer.\n4. Non-Solicitation of Employees. During Employee’s employment with Employer and, if Employee terminates his/her employment with Employer for any reason, or if Employer terminates Employee’s employment for cause, for a\nperiod of one (1) year after the Termination Date, Employee will not, directly or indirectly, either for Employee or for any other person, firm, employer or corporation: (1) call upon, solicit, divert, or hire, or attempt to solicit, divert, or\nhire any of the employees of Employer or (2) call upon, solicit, divert, or hire or attempt to solicit, divert, or hire any former employee of the Employer during the first six months after such former employee’s termination of employment\nwith Employer.\n5. Return of Employer’s Records. Employee agrees that upon termination of Employee’s employment, for any reason whatsoever, Employee will immediately deliver to the Employer in good condition all records kept by Employee\ncontaining the names, addresses or any other information with regard to referral sources or customers of the Employer, or\nconcerning any operational, financial or other documents of Employer given to Employee during Employee’s employment with Employer. Employee also agrees that he or she will not retain any copies (whether hard copy or electronic) of\nthe foregoing information.\n6. Non-Disclosure by Employee. Employee acknowledges and agrees that any confidential information obtained by Employee while employed by the Employer, including but not limited to customer lists and customer contacts, referral\nlists and referral contacts, financial, promotional, marketing, training or operational information, and employment data is highly confidential, and is important to the Employer and to the effective operation of the Employer’s business.\nEmployee therefore agrees that while employed by the Employer, and at any time thereafter, Employee will make no disclosure of any kind, directly or indirectly, concerning any such confidential matters relating to the Employer or any\nof its activities.\n7. Change in Control. In the event that there is a change in control, the non-solicitation agreements in paragraphs 3 and 4 shall not be enforceable. For purposes of this Agreement, a “change in control” means any of the following\nevents:\na.\nMerger: The Employer merges into or consolidates with another entity, or merges another corporation into the Employer, and as a result, less than a majority of the combined voting power of the resulting\ncorporation immediately after the merger or consolidation is held by persons who were stockholders of the Employer immediately before the merger or consolidation;\nb.\nAcquisition of Significant Share Ownership: There is filed, or is required to be filed, a report on Schedule 13D or another form or schedule (other than Schedule 13G) required under Sections 13(d) or 14(d) of the\nSecurities Exchange Act of 1934, as amended, if the schedule discloses that the filing person or persons acting in concert has or have become the beneficial owner of 25% or more of a class of the Employer’s\nvoting securities, but this clause (b) shall not apply to beneficial ownership of Employer voting shares held in a fiduciary capacity by an entity of which the Employer directly or indirectly beneficially owns 50%\nor more of its outstanding voting securities;\nc.\nSale of Assets: The Employer sells to a third party all or substantially all of its assets.\n8. Enforcement. In the event of a breach or threatened breach by the Employee of the provisions of this Agreement, the Employer shall be entitled to obtain a restraining order and/or an injunction restraining the Employee from\nviolating this Agreement in any way. The availability of relief under this paragraph is not cumulative or exclusive and Employer shall have available all other remedies available in law or equity to enforce the terms of this Agreement.\n9. Attorneys’ Fees. In the event that there is a dispute or litigation concerning any aspect of this Agreement, the prevailing party shall be entitled to all costs, including reasonable attorneys’ fees, incurred in such dispute or litigation.\n2\n10. Interpretation of Agreement. The parties covenant that this Agreement shall be construed and governed by Missouri law. No provision of this Agreement shall be construed against any party because that party, or their counsel,\ndrafted the provision.\n11. Severability. It is further the intention of the parties hereto that this Agreement restrict the activities of Employee only to the extent necessary for the protection of the legitimate business interests of Employer, and the parties\nspecifically covenant and agree that should any of the provisions set forth herein be held to be too broad for such purpose or invalid or unenforceable, said provisions will be so interpreted and applied in such a narrower sense as shall be\nnecessary to make the same valid and enforceable. Furthermore, should any term or provision of this Agreement be deemed invalid or unenforceable for any reason, the remaining terms and provisions of this Agreement shall remain in\nfull force and effect.\n12. Jurisdiction and Venue. Any cause of action or litigation of any kind related to the enforceability of this Agreement or any of its terms shall exclusively be initiated in the St. Louis County Circuit Court, State of Missouri.\n13. Employee-at-will. Employer and Employee acknowledge and understand that Employee is an employee at-will and, as a consequence, either party may terminate the employment relationship at any time for any reason or no reason\nat all.\n14. Entire Agreement. This writing contains the whole and entire agreement of the parties and supersedes all prior and contemporaneous agreements, representations and understandings regarding the issues covered herein.\nAGREED AND ACCEPTED:\nEMPLOYEE:\nSigned:\nPrinted Name:\nDated:\nPULASKI FINANCIAL CORP.\nBy:\nIts:\nDated:\n3
e714effe34666fe279593b6b7351ff06.pdf	effective_date jurisdiction party term	EX-99 .2 12 noncompagmt.htm NONCOMPETITION AND CONFIDENTIALITY AGREEMENT\nNONCOMPETITION AND CONFIDENTIALITY AGREEMENT\nThis NONCOMPETITION AND CONFIDENTIALITY AGREEMENT (the\n“Agreement”) is made and entered into as of March ____, 2008, by and among FEDELE V.\nSCUTTI (the “Selling Principal”), and GLOBAL CASINOS, INC., a Utah corporation and\nits wholly-owned subsidiary, DOC HOLLIDAY CASINO II, LLC, a Colorado limited\nliability company (collectively “Buyer”).\nRECITALS\nA.\nDoc Holliday Casino, LLC, a Colorado limited liability company and Selling\nPrincipal (collectively “Seller”) and Buyer are parties to that certain Asset Purchase and Sale\nAgreement dated as of June 14, 2007, as amended by Amendment No. 1 dated September 28,\n2007, by Amendment No. 2 dated November 30, 2007, by Amendment No. 3 dated\nDecember 5, 2007, by Amendment No. 4 dated January 30, 2008 and by Amendment No. 5\ndated March 3, 2008 (“Purchase Agreement”), relating to the purchase by Buyer of\nsubstantially all of the tangible and intangible property and assets (“Assets”) of the Business\nowned by Seller known as Doc Holliday Casino, 129-131 Main Street, Central City, CO (the\n“Business”). Capitalized terms used but not otherwise defined in this Agreement will have\nthe meanings ascribed to such terms in the Purchase Agreement.\nB.\nPursuant to the terms and conditions of the Purchase Agreement, the Selling\nPrincipal is executing this Agreement, in part, because such individual has developed and\nobtained substantial and detailed experience and extensive and valuable knowledge and\nConfidential Information concerning the Seller, the Assets, and the Business.\nC.\nAs a condition to the consummation of the Contemplated Transactions, and to\nenable Buyer to secure more fully the benefits of its acquisition of the Assets and the\nBusiness, as set forth in the Purchase Agreement, and to induce the Buyer to consummate the\nContemplated Transactions, Selling Principals are entering into this Agreement.\nAGREEMENT\nNOW, THEREFORE, in consideration of the premises, the payment of the Purchase\nPrice set forth in the Purchase Agreement, and other good and valuable consideration, the\nreceipt and sufficiency of which are hereby acknowledged, and intending to be legally bound,\nSelling Principals and Buyer hereby agree as follows:\n1.\nCovenant Not to Compete. Selling Principal will not, without Buyer ’s prior\nwritten consent, directly or indirectly: (i) own, have an interest in (other than as a less than\n5.0% equity owner of any Person traded on any national, international, or regional stock\nexchange or in the over-the-counter market, which 5.0% threshold includes the as-converted\namount of any securities convertible into the equity securities of such Person), operate, join,\ncontrol, or participate in, or be connected with as an officer, employee, partner, consultant, or\notherwise with, any Person having, developing or operating any entity or other relationship\ncompetitive with the Business or the Assets; or (ii) in any manner compete with, or become\ninvolved in any competitor of, Buyer anywhere within the geographic boundaries of the State\nof Colorado (the “Restricted Area”) for a period of five (5) years from the latest to occur of\nthe date that such Selling Principal is no longer employed by, affiliated with, or an equity\n1\nowner (either individually or as an equity owner of Seller) of Buyer (the “Restricted Period”).\nIf a court of competent jurisdiction concludes that the foregoing covenants are unenforceable\naccording to their terms, either because of the duration of the Restricted Period or the scope\nof the Restricted Area, Selling Principals and Buyer agree that a court of competent\njurisdiction will reduce the duration of the Restricted Period or the scope of the Restricted\nArea so that the resulting duration and scope will be the maximum that such court will\nconclude is enforceable, which reduction will be performed as follows: (a) in the case of the\nRestricted Period, the duration will be reduced by one month at a time until it will be the\nmaximum enforceable duration; and, (b) in the case of Restricted Area, such area will be\nreduced by eliminating individual states one at a time therefrom starting with the state\nfurthest from the State of Colorado until such area will be the maximum enforceable\ngeographical coverage.\n2.\nConfidential Information.\n(a)\n“Confidential Information” means all information concerning the Assets and\nthe Business, including, without limitation: (i) any and all know-how, improvements, trade\nsecrets, and other information concerning the Assets and the Business, Seller ’s customer lists;\n(ii) any and all materials containing or based, in whole or in part, on any information\nincluded in the foregoing; (iii) any Confidential Information (as defined in the Purchase\nAgreement); and (iv) the terms and conditions of the Purchase Agreement, any Ancillary\nDocument, and any other schedule, exhibit, certificate, Contract, document, or instrument\nexecuted and delivered pursuant thereto. “Confidential Information” does not include\ninformation that is or becomes generally known or available to the public (other than by\nreason of the breach of this Agreement or the Purchase Agreement or any other obligation of\nconfidentiality).\n(b) Selling Principal (i) will not disclose Confidential Information, except as\ncompelled by law pursuant to a final Order of a court of competent jurisdiction not subject to\nappeal, (ii) will not use any of the Confidential Information for any reason or purpose other\nthan to consummate the Contemplated Transactions or to carry out the business plan of Buyer\nafter the Closing, and (iii) will take all reasonably necessary and appropriate efforts to\nsafeguard the Confidential Information from disclosure to anyone other than Buyer and its\nrespective agents.\n3.\nNon-Solicitation. As further inducement for Buyer to enter into the Purchase\nAgreement, Selling Principal will not, during the Restricted Period: (a) hire any employee or\nindependent contractor of Buyer; (b) induce or attempt to induce, directly or indirectly, any\nemployee of Buyer to leave his or her employment with Buyer; (c) interfere, in any way, with\nthe relationship between the Buyer and its employees; (d) induce or attempt to induce any\ncustomer, supplier, licensee, or business relation of Buyer to cease doing business with\nBuyer, or in any way interfere with the relationship between any customer, supplier, licensee,\nor business relation of Buyer; or (e) solicit, directly or indirectly, either for himself or any\nother Person, the business of any Person known to the Selling Principal or reasonably\nbelieved by the Selling Principal to be a customer of Buyer, whether or not the Selling\nPrincipal had personal contact with such Person.\n4.\nEnforcement. Selling Principal agrees and acknowledges that a violation of\nthis Agreement will constitute immediate, irreparable harm to Buyer for which monetary\ndamages are insufficient. The parties hereto therefore agree that, in addition to any other\n2\nrights or remedies, Buyer is entitled to seek and obtain (a) a decree or Order of specific\nperformance to enforce the observance and performance of the agreements, covenants, or\nobligations in this Agreement, and (b) an injunction restraining any breach or threatened\nbreach of this Agreement. Selling Principal further agrees that Buyer will not be required to\nobtain, and Selling Principal irrevocably waives any right that he may have to require Buyer\nto, furnish or post any bond or similar instrument in connection with or as a condition to\nobtaining any remedy referred to in this Section 4.\n5.\nAcknowledgments. Selling Principal agrees and acknowledges that the rights\nand consideration provided for in this Agreement and the Purchase Agreement are adequate\nconsideration for the agreements herein made and that such covenants, and the territorial,\ntime, and other limitations with respect thereto, are reasonable and properly required for the\nadequate protection of Buyer ’s acquisition of the Business and the Assets, and Selling\nPrincipal agrees and acknowledges that such limitations are reasonable with respect to the\nbusiness activities, and do not impose undue hardship on Selling Principal.\n6.\nAssignment. This Agreement may not be assigned by Selling Principal.\nBuyer may assign this Agreement, in whole or in part, to any Person deriving title from\nBuyer to the Business or the Assets: provided, however, that if Buyer will sell, transfer, or\nassign less than all of its interest in the Business or the Assets, the obligations of Selling\nPrincipal under this Agreement will continue both as to Buyer and as to any successor(s) in\ninterest of the assigned portion of the Business or the Assets.\n7.\nSeverability. If any provision of this Agreement is held by a court of\ncompetent jurisdiction to be unenforceable, or enforceable only if modified, such holding will\nnot effect the validity of the remainder of this Agreement, the balance of which will continue\nto be binding upon the parties hereto with any such modification (if any) to become a part\nhereof and treated as though contained in this Agreement. The parties hereto further agree\nthat any such court is expressly authorized to modify any unenforceable provision of this\nAgreement in lieu of severing the unenforceable provision from this Agreement in its\nentirety, whether by rewriting the offending provision, adding additional language to this\nAgreement, deleting language, or by making such other modification that the court deems\nwarranted to carry out the intent of the parties hereto as indicated by the terms of this\nAgreement and the Purchase Agreement. The parties hereto expressly agree that this\nAgreement as so modified by the court will be binding upon and enforceable against each of\nthem.\n8.\nCounterparts. This Agreement and any amendment hereof may be executed\nin any number of counterparts, each of which will be deemed an original and all of which,\ntogether, will constitute one and the same instrument. In producing this Agreement, it will\nnot be necessary to produce or account for more than one counterpart signed by the party\nagainst whom enforcement is sought.\n9.\nAmendments and Waivers; Construction. No amendment, modification,\ntermination, or waiver of any provision of this Agreement will be effective unless in writing\nand signed by all of the parties hereto, and then only to the extent specifically set forth\ntherein. This Agreement will not be construed more strictly against one party by virtue of the\nfact that this Agreement may have been prepared by counsel for one of the parties, it being\n3\nrecognized that each of the parties hereto have contributed substantially and materially to the\npreparation of this Agreement.\n10. No Waivers by Implication. No course of dealing on the part of any party, or\ntheir respective officers, directors, employees, consultants, or agents, nor any failure or delay\nby any party with respect to exercising any of their respective rights, powers, or privileges\nunder this Agreement or law will operate as a waiver thereof. No waiver by any party of any\ncondition or the breach of any term, covenant, or agreement contained in this Agreement,\nwhether by conduct or otherwise, in any one or more instances will be deemed a further or\ncontinuing waiver of any term, covenant, or agreement of this Agreement.\n11. Entire Agreement. Except as may be set forth in the Purchase Agreement,\nthis Agreement embodies the entire agreement and understanding between the parties hereto\nand supersedes all prior agreements and understandings between the parties hereto relating to\nthe subject matter hereof. If there is a conflict between the terms, conditions, representations,\nwarranties, and covenants contained in this Agreement and any other document, then the\nprovisions in this Agreement will control; provided, however, that if any terms or conditions\nof this Agreement conflict with terms or conditions of the Purchase Agreement, the terms and\nconditions of the Purchase Agreement will control.\n12. Rights Cumulative. Except as set forth in this Agreement, all rights, powers,\nand remedies under this Agreement are cumulative and not alternative and are in addition to\nall statutes or rules of law.\n13. Incorporation of Recitals. The Recitals set forth above are hereby\nincorporated into and made a part of this Agreement.\n14. Governing Law. This Agreement, and the rights and obligations of the\nparties hereunder, will be governed by and construed in accordance with the\nlaws of the State of Colorado, without regard to its conflict of laws principles.\nIN WITNESS WHEREOF, the parties hereto have executed this Noncompetition and\nConfidentiality Agreement as of the date first above written.\nSELLING PRINCIPAL:\n/s/ Fedele V. Scutti\nFedele V. Scutti, an individual\nBUYER:\nGLOBAL CASINOS, INC., and its wholly-\nowned subsidiary DOC HOLLIDAY CASINO\nII, LLC (by Global Casinos, Inc., its Manager)\nBy: /s/ Clifford L. Neuman\nClifford L. Neuman, its President\n4	EX-99.2 12 noncompagmt.htm NONCOMPETITION AND CONFIDENTIALITY AGREEMENT\nNONCOMPETITION AND CONFIDENTIALITY AGREEMENT\nThis NONCOMPETITION AND CONFIDENTIALITY AGREEMENT (the\n“Agreement”) is made and entered into as of March ____, 2008, by and among FEDELE V.\nSCUTTI (the “Selling Principal”), and GLOBAL CASINOS, INC., a Utah corporation and\nits wholly-owned subsidiary, DOC HOLLIDAY CASINO II, LLC, a Colorado limited\nliability company (collectively “Buyer”).\nRECITALS\nA. Doc Holliday Casino, LL.C, a Colorado limited liability company and Selling\nPrincipal (collectively “Seller”) and Buyer are parties to that certain Asset Purchase and Sale\nAgreement dated as of June 14, 2007, as amended by Amendment No. 1 dated September 28,\n2007, by Amendment No. 2 dated November 30, 2007, by Amendment No. 3 dated\nDecember 5, 2007, by Amendment No. 4 dated January 30, 2008 and by Amendment No. 5\ndated March 3, 2008 (“Purchase Agreement”), relating to the purchase by Buyer of\nsubstantially all of the tangible and intangible property and assets (“Assets”) of the Business\nowned by Seller known as Doc Holliday Casino, 129-131 Main Street, Central City, CO (the\n“Business”). Capitalized terms used but not otherwise defined in this Agreement will have\nthe meanings ascribed to such terms in the Purchase Agreement.\n \nB. Pursuant to the terms and conditions of the Purchase Agreement, the Selling\nPrincipal is executing this Agreement, in part, because such individual has developed and\nobtained substantial and detailed experience and extensive and valuable knowledge and\nConfidential Information concerning the Seller, the Assets, and the Business.\nC. As a condition to the consummation of the Contemplated Transactions, and to\nenable Buyer to secure more fully the benefits of its acquisition of the Assets and the\nBusiness, as set forth in the Purchase Agreement, and to induce the Buyer to consummate the\nContemplated Transactions, Selling Principals are entering into this Agreement.\nAGREEMENT\nNOW, THEREFORE, in consideration of the premises, the payment of the Purchase\nPrice set forth in the Purchase Agreement, and other good and valuable consideration, the\nreceipt and sufficiency of which are hereby acknowledged, and intending to be legally bound,\nSelling Principals and Buyer hereby agree as follows:\n1. Covenant Not to Compete. Selling Principal will not, without Buyer’s prior\nwritten consent, directly or indirectly: (i) own, have an interest in (other than as a less than\n5.0% equity owner of any Person traded on any national, international, or regional stock\nexchange or in the over-the-counter market, which 5.0% threshold includes the as-converted\namount of any securities convertible into the equity securities of such Person), operate, join,\ncontrol, or participate in, or be connected with as an officer, employee, partner, consultant, or\notherwise with, any Person having, developing or operating any entity or other relationship\ncompetitive with the Business or the Assets; or (ii) in any manner compete with, or become\ninvolved in any competitor of, Buyer anywhere within the geographic boundaries of the State\nof Colorado (the “Restricted Area”) for a period of five (5) years from the latest to occur of\nthe date that such Selling Principal is no longer employed by, affiliated with, or an equity\nowner (either individually or as an equity owner of Seller) of Buyer (the “Restricted Period”).\nIf a court of competent jurisdiction concludes that the foregoing covenants are unenforceable\naccording to their terms, either because of the duration of the Restricted Period or the scope\nof the Restricted Area, Selling Principals and Buyer agree that a court of competent\njurisdiction will reduce the duration of the Restricted Period or the scope of the Restricted\nArea so that the resulting duration and scope will be the maximum that such court will\nconclude is enforceable, which reduction will be performed as follows: (a) in the case of the\nRestricted Period, the duration will be reduced by one month at a time until it will be the\nmaximum enforceable duration; and, (b) in the case of Restricted Area, such area will be\nreduced by eliminating individual states one at a time therefrom starting with the state\nfurthest from the State of Colorado until such area will be the maximum enforceable\ngeographical coverage.\n2. Confidential Information.\n(a) “Confidential Information” means all information concerning the Assets and\nthe Business, including, without limitation: (i) any and all know-how, improvements, trade\nsecrets, and other information concerning the Assets and the Business, Seller’s customer lists;\n(ii) any and all materials containing or based, in whole or in part, on any information\nincluded in the foregoing; (iii) any Confidential Information (as defined in the Purchase\nAgreement); and (iv) the terms and conditions of the Purchase Agreement, any Ancillary\nDocument, and any other schedule, exhibit, certificate, Contract, document, or instrument\nexecuted and delivered pursuant thereto. “Confidential Information” does not include\ninformation that is or becomes generally known or available to the public (other than by\nreason of the breach of this Agreement or the Purchase Agreement or any other obligation of\nconfidentiality).\n(b) Selling Principal (i) will not disclose Confidential Information, except as\ncompelled by law pursuant to a final Order of a court of competent jurisdiction not subject to\nappeal, (ii) will not use any of the Confidential Information for any reason or purpose other\nthan to consummate the Contemplated Transactions or to carry out the business plan of Buyer\nafter the Closing, and (iii) will take all reasonably necessary and appropriate efforts to\nsafeguard the Confidential Information from disclosure to anyone other than Buyer and its\nrespective agents.\n3. Non-Solicitation. As further inducement for Buyer to enter into the Purchase\nAgreement, Selling Principal will not, during the Restricted Period: (a) hire any employee or\nindependent contractor of Buyer; (b) induce or attempt to induce, directly or indirectly, any\nemployee of Buyer to leave his or her employment with Buyer; (c) interfere, in any way, with\nthe relationship between the Buyer and its employees; (d) induce or attempt to induce any\ncustomer, supplier, licensee, or business relation of Buyer to cease doing business with\nBuyer, or in any way interfere with the relationship between any customer, supplier, licensee,\nor business relation of Buyer; or (e) solicit, directly or indirectly, either for himself or any\nother Person, the business of any Person known to the Selling Principal or reasonably\nbelieved by the Selling Principal to be a customer of Buyer, whether or not the Selling\nPrincipal had personal contact with such Person.\n4. Enforcement. Selling Principal agrees and acknowledges that a violation of\nthis Agreement will constitute immediate, irreparable harm to Buyer for which monetary\ndamages are insufficient. The parties hereto therefore agree that, in addition to any other\nrights or remedies, Buyer is entitled to seek and obtain (a) a decree or Order of specific\nperformance to enforce the observance and performance of the agreements, covenants, or\nobligations in this Agreement, and (b) an injunction restraining any breach or threatened\nbreach of this Agreement. Selling Principal further agrees that Buyer will not be required to\nobtain, and Selling Principal irrevocably waives any right that he may have to require Buyer\nto, furnish or post any bond or similar instrument in connection with or as a condition to\nobtaining any remedy referred to in this Section 4.\n5. Acknowledgments. Selling Principal agrees and acknowledges that the rights\nand consideration provided for in this Agreement and the Purchase Agreement are adequate\nconsideration for the agreements herein made and that such covenants, and the territorial,\ntime, and other limitations with respect thereto, are reasonable and properly required for the\nadequate protection of Buyer’s acquisition of the Business and the Assets, and Selling\nPrincipal agrees and acknowledges that such limitations are reasonable with respect to the\nbusiness activities, and do not impose undue hardship on Selling Principal.\n6. Assignment. This Agreement may not be assigned by Selling Principal.\nBuyer may assign this Agreement, in whole or in part, to any Person deriving title from\nBuyer to the Business or the Assets: provided, however, that if Buyer will sell, transfer, or\nassign less than all of its interest in the Business or the Assets, the obligations of Selling\nPrincipal under this Agreement will continue both as to Buyer and as to any successor(s) in\ninterest of the assigned portion of the Business or the Assets.\n7. Severability. If any provision of this Agreement is held by a court of\ncompetent jurisdiction to be unenforceable, or enforceable only if modified, such holding will\nnot effect the validity of the remainder of this Agreement, the balance of which will continue\nto be binding upon the parties hereto with any such modification (if any) to become a part\nhereof and treated as though contained in this Agreement. The parties hereto further agree\nthat any such court is expressly authorized to modify any unenforceable provision of this\nAgreement in lieu of severing the unenforceable provision from this Agreement in its\nentirety, whether by rewriting the offending provision, adding additional language to this\nAgreement, deleting language, or by making such other modification that the court deems\nwarranted to carry out the intent of the parties hereto as indicated by the terms of this\nAgreement and the Purchase Agreement. The parties hereto expressly agree that this\nAgreement as so modified by the court will be binding upon and enforceable against each of\nthem.\n8. Counterparts. This Agreement and any amendment hereof may be executed\nin any number of counterparts, each of which will be deemed an original and all of which,\ntogether, will constitute one and the same instrument. In producing this Agreement, it will\nnot be necessary to produce or account for more than one counterpart signed by the party\nagainst whom enforcement is sought.\n9. Amendments and Waivers; Construction. No amendment, modification,\ntermination, or waiver of any provision of this Agreement will be effective unless in writing\nand signed by all of the parties hereto, and then only to the extent specifically set forth\ntherein. This Agreement will not be construed more strictly against one party by virtue of the\nfact that this Agreement may have been prepared by counsel for one of the parties, it being\nrecognized that each of the parties hereto have contributed substantially and materially to the\npreparation of this Agreement.\n10. No Waivers by Implication. No course of dealing on the part of any party, or\ntheir respective officers, directors, employees, consultants, or agents, nor any failure or delay\nby any party with respect to exercising any of their respective rights, powers, or privileges\nunder this Agreement or law will operate as a waiver thereof. No waiver by any party of any\ncondition or the breach of any term, covenant, or agreement contained in this Agreement,\nwhether by conduct or otherwise, in any one or more instances will be deemed a further or\ncontinuing waiver of any term, covenant, or agreement of this Agreement.\n11. Entire Agreement. Except as may be set forth in the Purchase Agreement,\nthis Agreement embodies the entire agreement and understanding between the parties hereto\nand supersedes all prior agreements and understandings between the parties hereto relating to\nthe subject matter hereof. If there is a conflict between the terms, conditions, representations,\nwarranties, and covenants contained in this Agreement and any other document, then the\nprovisions in this Agreement will control; provided, however, that if any terms or conditions\nof this Agreement conflict with terms or conditions of the Purchase Agreement, the terms and\nconditions of the Purchase Agreement will control.\n12. Rights Cumulative. Except as set forth in this Agreement, all rights, powers,\nand remedies under this Agreement are cumulative and not alternative and are in addition to\nall statutes or rules of law.\n13. Incorporation of Recitals. The Recitals set forth above are hereby\nincorporated into and made a part of this Agreement.\n14. Governing Law. This Agreement, and the rights and obligations of the\nparties hereunder, will be governed by and construed in accordance with the\nlaws of the State of Colorado, without regard to its conflict of laws principles.\nIN WITNESS WHEREOF, the parties hereto have executed this Noncompetition and\nConfidentiality Agreement as of the date first above written.\nSELLING PRINCIPAL.:\n/s/ Fedele V_Scutti\nFedele V. Scutti, an individual\nBUYER:\nGLOBAL CASINQOS, INC., and its wholly-\nowned subsidiary DOC HOLLIDAY CASINO\nII, LLC (by Global Casinos, Inc., its Manager)\nBy: /s/ Clifford L. Neuman\nClifford L. Neuman, its President	EX-99.2 12 noncompagmt.htm NONCOMPETITION AND CONFIDENTIALITY AGREEMENT\nNONCOMPETITION AND CONFIDENTIALITY AGREEMENT\nThis NONCOMPETITION AND CONFIDENTIALITY AGREEMENT (the\n"Agreement") is made and entered into as of March 2008, by and among FEDELE V.\nSCUTTI (the "Selling ing Principal") and GLOBAL CASINOS, INC., a Utah corporation and\nits wholly-owned subsidiary, DOC HOLLIDAY CASINO II, LLC, a Colorado limited\nliability company (collectively "Buyer").\nRECITALS\nA.\nDoc Holliday Casino, LLC, a Colorado limited liability company and Selling\nPrincipal (collectively "Seller") and Buyer are parties to that certain Asset Purchase and Sale\nAgreement dated as of June 14, 2007, as amended by Amendment No. 1 dated September 28,\n2007, by Amendment No. 2 dated November 30, 2007, by Amendment No. 3 dated\nDecember 5, 2007, by Amendment No. 4 dated January 30, 2008 and by Amendment No. 5\ndated March 3, 2008 ("Purchase Agreement"), relating to the purchase by Buyer of\nsubstantially all of the tangible and intangible property and assets ("Assets") of the Business\nowned by Seller known as Doc Holliday Casino, 129-131 Main Street Central City, CO (the\n"Business"). Capitalized terms used but not otherwise defined in this Agreement will have\nthe meanings ascribed to such terms in the Purchase Agreement.\nB.\nPursuant to the terms and conditions of the Purchase Agreement, the Selling\nPrincipal is executing this Agreement, in part, because such individua has developed and\nobtained substantial and detailed experience and extensive and valuable knowledge and\nConfidential Information concerning the Seller, the Assets, and the Business.\nC.\nAs a condition to the consummation of the Contemplated Transactions, and to\nenable Buyer to secure more fully the benefits of its acquisition of the Assets and the\nBusiness, as set forth in the Purchase Agreement, and to induce the Buyer to consummate the\nContemplated Transactions, Selling Principals are entering into this Agreement.\nAGREEMENT\nNOW, THEREFORE, in consideration of the premises, the payment of the Purchase\nPrice set forth in the Purchase Agreement, and other good and valuable consideration, the\nreceipt and sufficiency of which are hereby acknowledged, and intending to be legally bound,\nSelling Principals and Buyer hereby agree as follows:\n1.\nCovenant Not to Compete. Selling Principal will not, without Buyer's prior\nwritten consent, directly or indirectly: (i) own, have an interest in (other than as a less than\n5.0% equity owner of any Person traded on any national, international, or regional stock\nexchange or in the over-the-counter market, which 5.0% threshold includes the as-converted\namount of any securities convertible into the equity securities of such Person), operate, join,\ncontrol, or participate in, or be connected with as an officer, employee, partner, consultant, or\notherwise with, any Person having, developing or operating any entity or other relationship\ncompetitive with the Business or the Assets; or (ii) in any manner compete with, or become\ninvolved in any competitor of, Buyer anywhere within the geographic boundaries of the State\nof Colorado (the "Restricted Area") for a period of five (5) years from the latest to occur of\nthe date that such Selling Principal is no longer employed by, affiliated with, or an equity\n1\nowner (either individually or as an equity owner of Seller) of Buyer (the "Restricted Period").\nIf a court of competent jurisdiction concludes that the foregoing covenants are unenforceable\naccording to their terms, either because of the duration of the Restricted Period or the scope\nof the Restricted Area, Selling Principals and Buyer agree that a court of competent\njurisdiction will reduce the duration of the Restricted Period or the scope of the Restricted\nArea so that the resulting duration and scope will be the maximum that such court will\nconclude is enforceable, which reduction will be performed as follows: (a) in the case of the\nRestricted Period, the duration will be reduced by one month at a time until it will be the\nmaximum enforceable duration; and, (b) in the case of Restricted Area, such area will be\nreduced by eliminating individual states one at a time therefrom starting with the state\nfurthest from the State of Colorado until such area will be the maximum enforceable\ngeographical coverage.\n2.\nConfidential Information.\n(a)\n"Confidential Information" means all information concerning the Assets and\nthe Business, including, without limitation: (i) any and all know-how, improvements, trade\nsecrets, and other information concerning the Assets and the Business, Seller's customer lists;\n(ii) any and all materials containing or based, in whole or in part, on any information\nincluded in the foregoing; (iii) any Confidential Information (as defined in the Purchase\nAgreement); and (iv) the terms and conditions of the Purchase Agreement, any Ancillary\nDocument, and any other schedule, exhibit, certificate, Contract, document, or instrument\nexecuted and delivered pursuant thereto. "Confidential Information" does not include\ninformation that is or becomes generally known or available to the public (other than by\nreason of the breach of this Agreement or the Purchase Agreement or any other obligation of\nconfidentiality).\n(b) Selling Principal (i) will not disclose Confidential Information, except as\ncompelled by law pursuant to a final Order of a court of competent jurisdiction not subject to\nappeal, (ii) will not use any of the Confidential Information for any reason or purpose other\nthan to consummate the Contemplated Transactions or to carry out the business plan of Buyer\nafter the Closing, and (iii) will take all reasonably necessary and appropriate efforts to\nsafeguard the Confidential Information from disclosure to anyone other than Buyer and its\nrespective agents.\n3.\nNon-Solicitation. As further inducement for Buyer to enter into the Purchase\nAgreement, Selling Principal will not, during the Restricted Period: (a) hire any employee or\nindependent contractor of Buyer; (b) induce or attempt to induce, directly or indirectly, any\nemployee of Buyer to leave his or her employment with Buyer; (c) interfere, in any way, with\nthe relationship between the Buyer and its employees; (d) induce or attempt to induce any\ncustomer, supplier, licensee, or business relation of Buyer to cease doing business with\nBuyer, or in any way interfere with the relationship between any customer, supplier, licensee,\nor business relation of Buyer; or (e) solicit, directly or indirectly, either for himself or any\nother Person, the business of any Person known to the Selling Principal or reasonably\nbelieved by the Selling Principal to be a customer of Buyer, whether or not the Selling\nPrincipal had personal contact with such Person.\n4.\nEnforcement. Selling Principal agrees and acknowledges that a violation of\nthis Agreement will constitute immediate, irreparable harm to Buyer for which monetary\ndamages are insufficient. The parties hereto therefore agree that, in addition to any other\n2\nrights or remedies, Buyer is entitled to seek and obtain (a) a decree or Order of specific\nperformance to enforce the observance and performance of the agreements, covenants, or\nobligations in this Agreement, and (b) an injunction restraining any breach or threatened\nbreach of this Agreement. Selling Principal further agrees that Buyer will not be required to\nobtain, and Selling Principal irrevocably waives any right that he may have to require Buyer\nto, furnish or post any bond or similar instrument in connection with or as a condition to\nobtaining any remedy referred to in this Section 4.\n5.\nAcknowledgments. Selling Principal agrees and acknowledges that the rights\nand consideration provided for in this Agreement and the Purchase Agreement are adequate\nconsideration for the agreements herein made and that such covenants, and the territorial,\ntime, and other limitations with respect thereto, are reasonable and properly required for the\nadequate protection of Buyer's acquisition of the Business and the Assets, and Selling\nPrincipal agrees and acknowledges that such limitations are reasonable with respect to the\nbusiness activities, and do not impose undue hardship on Selling Principal.\n6.\nAssignment. This Agreement may not be assigned by Selling Principal.\nBuyer may assign this Agreement, in whole or in part, to any Person deriving title from\nBuyer to the Business or the Assets: provided, however, that if Buyer will sell, transfer, or\nassign less than all of its interest in the Business or the Assets, the obligations of Selling\nPrincipal under this Agreement will continue both as to Buyer and as to any successor(s) in\ninterest of the assigned portion of the Business or the Assets.\n7.\nSeverability. If any provision of this Agreement is held by a court of\ncompetent jurisdiction to be unenforceable, or enforceable only if modified, such holding will\nnot effect the validity of the remainder of this Agreement, the balance of which will continue\nto be binding upon the parties hereto with any such modification (if any) to become a part\nhereof and treated as though contained in this Agreement. The parties hereto further agree\nthat any such court is expressly authorized to modify any unenforceable provision of this\nAgreement in lieu of severing the unenforceable provision from this Agreement in its\nentirety, whether by rewriting the offending provision, adding additional language to this\nAgreement, deleting language, or by making such other modification that the court deems\nwarranted to carry out the intent of the parties hereto as indicated by the terms of this\nAgreement and the Purchase Agreement. The parties hereto expressly agree that this\nAgreement as so modified by the court will be binding upon and enforceable against each of\nthem.\n8.\nCounterparts. This Agreement and any amendment hereof may be executed\nin any number of counterparts, each of which will be deemed an original and all of which,\ntogether, will constitute one and the same instrument. In producing this Agreement, it will\nnot be necessary to produce or account for more than one counterpart signed by the party\nagainst whom enforcement is sought.\n9.\nAmendments and Waivers; Construction. No amendment, modification,\ntermination, or waiver of any provision of this Agreement will be effective unless in writing\nand signed by all of the parties hereto, and then only to the extent specifically set forth\ntherein. This Agreement will not be construed more strictly against one party by virtue of the\nfact that this Agreement may have been prepared by counsel for one of the parties, it being\n3\nrecognized that each of the parties hereto have contributed substantially and materially to the\npreparation of this Agreement.\n10. No Waivers by Implication. No course of dealing on the part of any party, or\ntheir respective officers, directors, employees, consultants, or agents, nor any failure or delay\nby any party with respect to exercising any of their respective rights, powers, or privileges\nunder this Agreement or law will operate as a waiver thereof. No waiver by any party of any\ncondition or the breach of any term, covenant, or agreement contained in this Agreement,\nwhether by conduct or otherwise, in any one or more instances will be deemed a further or\ncontinuing waiver of any term, covenant, or agreement of this Agreement.\n11. Entire Agreement. Except as may be set forth in the Purchase Agreement,\nthis Agreement embodies the entire agreement and understanding between the parties hereto\nand supersedes all prior agreements and understandings between the parties hereto relating to\nthe subject matter hereof. If there is a conflict between the terms, conditions, representations,\nwarranties, and covenants contained in this Agreement and any other document, then the\nprovisions in this Agreement will control; provided however, that if any terms or conditions\nof this Agreement conflict with terms or conditions of the Purchase Agreement, the terms and\nconditions of the Purchase Agreement will control.\n12.\nRights Cumulative. Except as set forth in this Agreement, all rights, powers,\nand remedies under this Agreement are cumulative and not alternative and are in addition to\nall statutes or rules of law.\n13.\nIncorporation of Recitals. The Recitals set forth above are hereby\nincorporated into and made a part of this Agreement.\n14.\nGoverning. Law. This Agreement, and the rights and obligations of the\nparties hereunder, will be governed by and construed in accordance with the\nlaws of the State of Colorado, without regard to its conflict of laws principles.\nIN WITNESS WHEREOF, the parties hereto have executed this Noncompetition and\nConfidentiality Agreement as of the date first above written.\nSELLING PRINCIPAL:\n/s/ Fedele V. Scutti\nFedele V. Scutti, an individual\nBUYER:\nGLOBAL CASINOS, INC., and its wholly-\nowned subsidiary DOC HOLLIDAY CASINO\nII, LLC (by Global Casinos, Inc., its Manager)\nBy: /s/ Clifford L. Neuman\nClifford L. Neuman, its President\n4	EX-99 .2 12 noncompagmt.htm NONCOMPETITION AND CONFIDENTIALITY AGREEMENT\nNONCOMPETITION AND CONFIDENTIALITY AGREEMENT\nThis NONCOMPETITION AND CONFIDENTIALITY AGREEMENT (the\n“Agreement”) is made and entered into as of March ____, 2008, by and among FEDELE V.\nSCUTTI (the “Selling Principal”), and GLOBAL CASINOS, INC., a Utah corporation and\nits wholly-owned subsidiary, DOC HOLLIDAY CASINO II, LLC, a Colorado limited\nliability company (collectively “Buyer”).\nRECITALS\nA.\nDoc Holliday Casino, LLC, a Colorado limited liability company and Selling\nPrincipal (collectively “Seller”) and Buyer are parties to that certain Asset Purchase and Sale\nAgreement dated as of June 14, 2007, as amended by Amendment No. 1 dated September 28,\n2007, by Amendment No. 2 dated November 30, 2007, by Amendment No. 3 dated\nDecember 5, 2007, by Amendment No. 4 dated January 30, 2008 and by Amendment No. 5\ndated March 3, 2008 (“Purchase Agreement”), relating to the purchase by Buyer of\nsubstantially all of the tangible and intangible property and assets (“Assets”) of the Business\nowned by Seller known as Doc Holliday Casino, 129-131 Main Street, Central City, CO (the\n“Business”). Capitalized terms used but not otherwise defined in this Agreement will have\nthe meanings ascribed to such terms in the Purchase Agreement.\nB.\nPursuant to the terms and conditions of the Purchase Agreement, the Selling\nPrincipal is executing this Agreement, in part, because such individual has developed and\nobtained substantial and detailed experience and extensive and valuable knowledge and\nConfidential Information concerning the Seller, the Assets, and the Business.\nC.\nAs a condition to the consummation of the Contemplated Transactions, and to\nenable Buyer to secure more fully the benefits of its acquisition of the Assets and the\nBusiness, as set forth in the Purchase Agreement, and to induce the Buyer to consummate the\nContemplated Transactions, Selling Principals are entering into this Agreement.\nAGREEMENT\nNOW, THEREFORE, in consideration of the premises, the payment of the Purchase\nPrice set forth in the Purchase Agreement, and other good and valuable consideration, the\nreceipt and sufficiency of which are hereby acknowledged, and intending to be legally bound,\nSelling Principals and Buyer hereby agree as follows:\n1.\nCovenant Not to Compete. Selling Principal will not, without Buyer ’s prior\nwritten consent, directly or indirectly: (i) own, have an interest in (other than as a less than\n5.0% equity owner of any Person traded on any national, international, or regional stock\nexchange or in the over-the-counter market, which 5.0% threshold includes the as-converted\namount of any securities convertible into the equity securities of such Person), operate, join,\ncontrol, or participate in, or be connected with as an officer, employee, partner, consultant, or\notherwise with, any Person having, developing or operating any entity or other relationship\ncompetitive with the Business or the Assets; or (ii) in any manner compete with, or become\ninvolved in any competitor of, Buyer anywhere within the geographic boundaries of the State\nof Colorado (the “Restricted Area”) for a period of five (5) years from the latest to occur of\nthe date that such Selling Principal is no longer employed by, affiliated with, or an equity\n1\nowner (either individually or as an equity owner of Seller) of Buyer (the “Restricted Period”).\nIf a court of competent jurisdiction concludes that the foregoing covenants are unenforceable\naccording to their terms, either because of the duration of the Restricted Period or the scope\nof the Restricted Area, Selling Principals and Buyer agree that a court of competent\njurisdiction will reduce the duration of the Restricted Period or the scope of the Restricted\nArea so that the resulting duration and scope will be the maximum that such court will\nconclude is enforceable, which reduction will be performed as follows: (a) in the case of the\nRestricted Period, the duration will be reduced by one month at a time until it will be the\nmaximum enforceable duration; and, (b) in the case of Restricted Area, such area will be\nreduced by eliminating individual states one at a time therefrom starting with the state\nfurthest from the State of Colorado until such area will be the maximum enforceable\ngeographical coverage.\n2.\nConfidential Information.\n(a)\n“Confidential Information” means all information concerning the Assets and\nthe Business, including, without limitation: (i) any and all know-how, improvements, trade\nsecrets, and other information concerning the Assets and the Business, Seller ’s customer lists;\n(ii) any and all materials containing or based, in whole or in part, on any information\nincluded in the foregoing; (iii) any Confidential Information (as defined in the Purchase\nAgreement); and (iv) the terms and conditions of the Purchase Agreement, any Ancillary\nDocument, and any other schedule, exhibit, certificate, Contract, document, or instrument\nexecuted and delivered pursuant thereto. “Confidential Information” does not include\ninformation that is or becomes generally known or available to the public (other than by\nreason of the breach of this Agreement or the Purchase Agreement or any other obligation of\nconfidentiality).\n(b) Selling Principal (i) will not disclose Confidential Information, except as\ncompelled by law pursuant to a final Order of a court of competent jurisdiction not subject to\nappeal, (ii) will not use any of the Confidential Information for any reason or purpose other\nthan to consummate the Contemplated Transactions or to carry out the business plan of Buyer\nafter the Closing, and (iii) will take all reasonably necessary and appropriate efforts to\nsafeguard the Confidential Information from disclosure to anyone other than Buyer and its\nrespective agents.\n3.\nNon-Solicitation. As further inducement for Buyer to enter into the Purchase\nAgreement, Selling Principal will not, during the Restricted Period: (a) hire any employee or\nindependent contractor of Buyer; (b) induce or attempt to induce, directly or indirectly, any\nemployee of Buyer to leave his or her employment with Buyer; (c) interfere, in any way, with\nthe relationship between the Buyer and its employees; (d) induce or attempt to induce any\ncustomer, supplier, licensee, or business relation of Buyer to cease doing business with\nBuyer, or in any way interfere with the relationship between any customer, supplier, licensee,\nor business relation of Buyer; or (e) solicit, directly or indirectly, either for himself or any\nother Person, the business of any Person known to the Selling Principal or reasonably\nbelieved by the Selling Principal to be a customer of Buyer, whether or not the Selling\nPrincipal had personal contact with such Person.\n4.\nEnforcement. Selling Principal agrees and acknowledges that a violation of\nthis Agreement will constitute immediate, irreparable harm to Buyer for which monetary\ndamages are insufficient. The parties hereto therefore agree that, in addition to any other\n2\nrights or remedies, Buyer is entitled to seek and obtain (a) a decree or Order of specific\nperformance to enforce the observance and performance of the agreements, covenants, or\nobligations in this Agreement, and (b) an injunction restraining any breach or threatened\nbreach of this Agreement. Selling Principal further agrees that Buyer will not be required to\nobtain, and Selling Principal irrevocably waives any right that he may have to require Buyer\nto, furnish or post any bond or similar instrument in connection with or as a condition to\nobtaining any remedy referred to in this Section 4.\n5.\nAcknowledgments. Selling Principal agrees and acknowledges that the rights\nand consideration provided for in this Agreement and the Purchase Agreement are adequate\nconsideration for the agreements herein made and that such covenants, and the territorial,\ntime, and other limitations with respect thereto, are reasonable and properly required for the\nadequate protection of Buyer ’s acquisition of the Business and the Assets, and Selling\nPrincipal agrees and acknowledges that such limitations are reasonable with respect to the\nbusiness activities, and do not impose undue hardship on Selling Principal.\n6.\nAssignment. This Agreement may not be assigned by Selling Principal.\nBuyer may assign this Agreement, in whole or in part, to any Person deriving title from\nBuyer to the Business or the Assets: provided, however, that if Buyer will sell, transfer, or\nassign less than all of its interest in the Business or the Assets, the obligations of Selling\nPrincipal under this Agreement will continue both as to Buyer and as to any successor(s) in\ninterest of the assigned portion of the Business or the Assets.\n7.\nSeverability. If any provision of this Agreement is held by a court of\ncompetent jurisdiction to be unenforceable, or enforceable only if modified, such holding will\nnot effect the validity of the remainder of this Agreement, the balance of which will continue\nto be binding upon the parties hereto with any such modification (if any) to become a part\nhereof and treated as though contained in this Agreement. The parties hereto further agree\nthat any such court is expressly authorized to modify any unenforceable provision of this\nAgreement in lieu of severing the unenforceable provision from this Agreement in its\nentirety, whether by rewriting the offending provision, adding additional language to this\nAgreement, deleting language, or by making such other modification that the court deems\nwarranted to carry out the intent of the parties hereto as indicated by the terms of this\nAgreement and the Purchase Agreement. The parties hereto expressly agree that this\nAgreement as so modified by the court will be binding upon and enforceable against each of\nthem.\n8.\nCounterparts. This Agreement and any amendment hereof may be executed\nin any number of counterparts, each of which will be deemed an original and all of which,\ntogether, will constitute one and the same instrument. In producing this Agreement, it will\nnot be necessary to produce or account for more than one counterpart signed by the party\nagainst whom enforcement is sought.\n9.\nAmendments and Waivers; Construction. No amendment, modification,\ntermination, or waiver of any provision of this Agreement will be effective unless in writing\nand signed by all of the parties hereto, and then only to the extent specifically set forth\ntherein. This Agreement will not be construed more strictly against one party by virtue of the\nfact that this Agreement may have been prepared by counsel for one of the parties, it being\n3\nrecognized that each of the parties hereto have contributed substantially and materially to the\npreparation of this Agreement.\n10. No Waivers by Implication. No course of dealing on the part of any party, or\ntheir respective officers, directors, employees, consultants, or agents, nor any failure or delay\nby any party with respect to exercising any of their respective rights, powers, or privileges\nunder this Agreement or law will operate as a waiver thereof. No waiver by any party of any\ncondition or the breach of any term, covenant, or agreement contained in this Agreement,\nwhether by conduct or otherwise, in any one or more instances will be deemed a further or\ncontinuing waiver of any term, covenant, or agreement of this Agreement.\n11. Entire Agreement. Except as may be set forth in the Purchase Agreement,\nthis Agreement embodies the entire agreement and understanding between the parties hereto\nand supersedes all prior agreements and understandings between the parties hereto relating to\nthe subject matter hereof. If there is a conflict between the terms, conditions, representations,\nwarranties, and covenants contained in this Agreement and any other document, then the\nprovisions in this Agreement will control; provided, however, that if any terms or conditions\nof this Agreement conflict with terms or conditions of the Purchase Agreement, the terms and\nconditions of the Purchase Agreement will control.\n12. Rights Cumulative. Except as set forth in this Agreement, all rights, powers,\nand remedies under this Agreement are cumulative and not alternative and are in addition to\nall statutes or rules of law.\n13. Incorporation of Recitals. The Recitals set forth above are hereby\nincorporated into and made a part of this Agreement.\n14. Governing Law. This Agreement, and the rights and obligations of the\nparties hereunder, will be governed by and construed in accordance with the\nlaws of the State of Colorado, without regard to its conflict of laws principles.\nIN WITNESS WHEREOF, the parties hereto have executed this Noncompetition and\nConfidentiality Agreement as of the date first above written.\nSELLING PRINCIPAL:\n/s/ Fedele V. Scutti\nFedele V. Scutti, an individual\nBUYER:\nGLOBAL CASINOS, INC., and its wholly-\nowned subsidiary DOC HOLLIDAY CASINO\nII, LLC (by Global Casinos, Inc., its Manager)\nBy: /s/ Clifford L. Neuman\nClifford L. Neuman, its President\n4
e8f05da84a3414250afe3702961f055b.pdf	effective_date jurisdiction party	EXHIBIT C\nNONDISCLOSURE, NONSOLICITATION AND NONCOMPETITION AGREEMENT\nTHIS NONDISCLOSURE, NONSOLICITATION AND NONCOMPETITION AGREEMENT\n(“Agreement”), dated as of April 27, 2010, is between Scott Telesz (“Employee”) and Praxair, Inc. (Praxair,\nInc. and its Affiliates are collectively referred to herein as “Praxair”). Employee and Praxair are collectively\nreferred to herein as the “Parties”.\nSECTION 1. Reason for Agreement. The industrial gases and other businesses in which Praxair participates\nare intensely competitive. All of the major companies that compete in these businesses are continually\nsearching for competitive advantage that will give them a benefit over their competitors in the marketplace.\nPraxair develops its employees by providing them with training, education, access to Praxair’s intellectual\nproperty, systems, strategies and other confidential information in order to make them as competitive and\neffective as possible in performing their jobs for the benefit of Praxair’s shareholders and other constituencies\nwith an interest in Praxair’s success: its employees, customers, suppliers and the communities in which Praxair\ndoes business. The loss of an employee represents the loss of a significant investment and competitive asset to\nPraxair, and if the employee is lost to a competitor, that investment could be used against Praxair in the\ncompetitive marketplace. The purpose of this Agreement is to protect Praxair’s investment in its employees, its\nstrategic Confidential Information (as defined herein) and customers, and to prevent that investment from being\nused against Praxair for a reasonable period of time.\nSECTION 2. Consideration. Employee acknowledges that Praxair has offered Employee both the benefits\nand protection under a CIC Agreement (as defined herein), as well as continued eligibility to participate in the\nVariable Compensation Plan (as defined herein), as consideration for Employee’s agreement to all the terms of\nthis Agreement. Employee understands and agrees that this consideration has material value and benefit, above\nand beyond any continuation of Praxair employment, and that Employee would not be entitled to such\nconsideration unless he or she signs and agrees to be bound by this Agreement. Praxair agrees to provide\nEmployee this consideration only in exchange for his or her compliance with all the terms of this Agreement.\nSECTION 3. Confidentiality and Business Interests. Employee agrees to:\n•\nkeep secret and confidential and neither use nor disclose, by any means, either during or subsequent to\nhis or her employment, any Confidential Information except as provided below or required in his or her\nemployment with, or authorized in writing by, Praxair;\n•\nassign to Praxair or its designee (and Employee hereby does assign), all right, title and interest in and to\nall Subject Developments;\n•\npromptly disclose to Praxair all Subject Developments, in writing and in reasonable detail, and to assist\nin the preparation of and to execute all appropriate papers or documents and otherwise provide proper\nassistance to enable Praxair to secure, maintain, enforce and defend its patents, copyrights and any other\nlegal protection available for such Subject Developments in any and all countries;\n•\nnot disclose to Praxair nor to utilize in Employee’s work for Praxair any confidential information or\ntrade secrets of others known to Employee (including prior employers);\n•\nkeep confidential and not disclose or use, either during or subsequent to Employee’s employment, any\nconfidential information or trade secrets of others which Employee receives during the course of his or\nher employment with Praxair for so long as and to the same extent as Praxair is obligated to retain such\ninformation or trade secrets in confidence; and\n•\ndeliver to Praxair promptly upon the end of Employee’s employment all written and other materials\nwhich constitute or contain Confidential Information or Subject Developments or which are the property\nof Praxair, and to not remove or take any such written and other materials.\nThese obligations will not apply to Confidential Information to the extent that it: (a) is or becomes publicly\nknown by means other than Employee’s failure to live up to his or her obligations under this Agreement; (b)\nwas known to Employee prior to disclosure to Employee by or on behalf of Praxair and Employee can prove it;\nor (c) is received by Employee in good faith from a third party (not an Affiliate) which has no obligation of\nconfidentiality to Praxair with respect thereto. Notwithstanding anything contained herein to the contrary,\nConfidential Information will not lose its protected status under this Agreement if it becomes generally known\nto the public or to other persons through improper means. Praxair’s confidential exchange of Confidential\nInformation with a third party for business purposes will not remove it from protection under this Agreement.\nIf disclosure of Confidential Information or Subject Developments is compelled by law, Employee shall give\nPraxair as much written notice as possible under the circumstances, will refrain from use or disclosure for as\nlong as the law allows, and will cooperate with Praxair to protect such information, including taking every\nreasonable step necessary to protect against unnecessary disclosure.\nEmployee acknowledges that he or she has been notified by Praxair that the provisions of this Section 3 do not\napply to any invention with respect to which no equipment, supplies, facility, or Confidential Information of\nPraxair was used and which was developed entirely on Employee’s own time, unless the invention: (a) relates\nto Praxair’s business or actual or demonstrably anticipated research or development; or (b) results from any\nwork performed by Employee for Praxair. Employee also understands and acknowledges that the copyrights in\nall copyrightable works prepared by Employee, alone or with others, in the course of his or her employment are\nowned solely by Employee’s employer.\nThe provisions of this Section 3 shall continue in effect for the duration of Employee’s employment with\nPraxair at any and all locations, either in the United States or a foreign country and its obligations shall survive\nthe termination of Employee’s employment for any reason.\nSECTION 4. Protective Covenants. Employee agrees that the following covenants are (a) ancillary to the\nother enforceable agreements contained in this Agreement, and (b) reasonable and necessary to protect\nlegitimate Praxair business interests.\n4.1 Restriction on Interfering with Employee Relationships. Employee agrees that for a period of\ntwo (2) years following the end of his or her employment with Praxair, Employee will not interfere with\nPraxair’s business relationship with a Praxair employee, by soliciting or communicating with such an\nemployee to induce or encourage him or her to leave Praxair’s employ (regardless of who first initiates\nthe communication), by helping another person or entity evaluate a Praxair employee as an employment\ncandidate, or by otherwise helping any person or entity hire an employee away from Praxair; unless a\nduly authorized Praxair officer gives Employee written authorization to do so.\n4.2 Restriction on Interfering with Customer Relationships. Employee agree\ns that for a period of two (2) years following the end of his or her employment with Praxair, Employee will not\ninterfere with Praxair’s business relationships with a Covered Customer, by soliciting or communicating\n(regardless of who initiates the communication) with a Covered Customer to induce or encourage the Covered\nCustomer to: (a) stop or reduce doing business with Praxair, or (b) to buy a Conflicting Product or Service;\nunless a duly authorized Praxair officer gives Employee written authorization to do so. The Parties agree this\nrestriction is inherently reasonable.\n4.3 Restriction on Unfair Competition. Employee agrees that for a period of two (2) years following the end\nof his or her employment with Praxair, Employee will not participate in, supervise, or manage (as an employee,\nconsultant, contractor, officer, owner, director, or otherwise) Competing Activities in the Restricted Area.\n4.4 Survival of Restrictions. (a) Before accepting new employment, Employee will advise every future\nemployer of the restrictions in this Agreement. Employee agrees that Praxair may advise a future employer or\nprospective employer of this Agreement and its position on the potential application of this Agreement. (b) The\nAgreement’s post-employment obligations will survive the termination of Employee’s employment with\nPraxair, regardless of the cause of the termination. If Employee violates one of the post-employment\nrestrictions in this Agreement on which there is a specific time limitation, the time period for that restriction\nwill be extended by one day for each day Employee violates it, up to a maximum extension equal to the length\nof time prescribed for the restriction, so as to give Praxair the full benefit of the bargained-for length of\nforbearance. (c) It is the intention of the Parties that, if any court construes any provision or clause of this\nAgreement, or any portion thereof, to be illegal, void or unenforceable, because of duration of such provision,\nthe geographic scope or the subject matter covered thereby, such court shall reduce the duration, area, or matter\nof such provision, and, in its reduced form, such provision shall then be enforceable and shall be enforced. (d)\nIf Employee becomes employed with an Affiliate without signing a new agreement, the Affiliate will step into\nPraxair’s position under this Agreement, and will be entitled to the same protections and enforcement rights as\nPraxair.\n4.5 State Specific Modifications. While employee is a resident of Connecticut, the restrictions on use\nor disclosure of Confidential Information in Section 3 will only apply for three (3) years after the end of\nEmployee’s employment, where information that does not qualify as a trade secret is concerned; however, the\nrestrictions will continue to apply to trade secret information for as long as the information at issue remains\nqualified as a trade secret.\nSECTION 5. Definitions. For purposes of this Agreement, the following terms shall have the meanings\nassigned to them below:\n5.1“Affiliate” means: (a) any corporation 10% or more of the voting stock of which is owned or\ncontrolled by Praxair, Inc., or (b) any corporation owning or controlling 50% or more of the voting stock of\nPraxair, Inc.; or (c) any corporation 25% or more of the voting stock of which is owned or controlled by a\ncorporation owning or controlling 50% or more of the voting stock of Praxair, Inc.; or (d) any unincorporated\nentity, including a partnership, in which Praxair, Inc. has a 25% or more ownership interest, or which has a\n50% or more ownership interest in Praxair, Inc., or in which an entity having a 50% or more ownership interest\nin Praxair, Inc. has a 25% or more ownership interest.\n5.2“CIC Agreement” means the Severance Compensation Agreement, the form of which is attached\nhereto, that will provide Employee with severance and other valuable benefits in the event his or her Praxair\nemployment terminates for certain reasons within two (2) years after a change in control of\nPraxair (as defined in the CIC Agreement).\n5.3“Competing Activities” are any activities or services undertaken on behalf of a competitor (which is\nunderstood to mean any person or entity engaged in the business of providing a Conflicting Product or Service\nin the Restricted Area) that are the same or similar in function or purpose to those Employee performed for\nPraxair in the two (2) year period preceding the end of Employee’s employment with Praxair, or that are\notherwise likely to result in the use or disclosure of Confidential Information. Competing Activities are\nunderstood to exclude: activities on behalf of an independently operated subsidiary, division, or unit of a\ndiversified corporation or similar business that has common ownership with a competitor so long as the\nindependently operated business unit does not involve a Conflicting Product or Service; and, a passive and\nnon-controlling ownership interest in a competitor through ownership of less than 2% of the stock in a publicly\ntraded company.\n5.4“Confidential Information” includes but is not limited to: (a) any technical or business information,\nknow-how or trade secrets, patentable or not, in any form, including but not limited to data; diagrams; business,\nmarketing or sales plans; notes; drawings; models; prototypes; specifications; manuals; memoranda; reports;\ncustomer or vendor information; pricing or cost information; and computer programs, which are furnished to\nEmployee by Praxair or which Employees procures or prepares, alone or with others, in the course of his or her\nemployment; and (b) Subject Developments.\n5.5“Conflicting Product or Service” is a product and/or service that is the same or similar in function\nor purpose to a Praxair product and/or service, such that it would replace or compete with: (a) a product and/or\nservice Praxair provides to its customers; or (b) a product or service that is under development or planning by\nPraxair but not yet provided to customers and regarding which Employee was provided Confidential\nInformation in the course of employment. Conflicting Products or Services do not include a product or service\nof Praxair if Praxair is no longer in the business of providing such product or service to its customers at the\nrelevant time of enforcement.\n5.6\n“Covered Customer” is a Praxair customer (person or entity) Employee had business-related\ncontact or dealings with, or received Confidential Information about, in the two (2) year period preceding the\nend of Employee’s employment with Praxair. References to the end of Employee’s employment in this\nAgreement refer to the end, whether by resignation or termination, and without regard for the reason\nemployment ended.\n5.7\n“Restricted Area” is the United States and the additional areas within Asia, Europe, North\nAmerica, Central America and South America where Praxair marketed (either individually, through\nsubsidiaries, and/or through strategic alliances or partner companies) its products and services at any time\nduring the twelve months preceding the termination of Employee’s employment with Praxair. The Parties agree\nthat, at the time of execution of this Agreement, the Restricted Area includes, but is not necessarily limited to:\nChina, Austria, India, Japan, Korea, Malaysia, Singapore, Taiwan, Thailand, Canada, Belgium,\nBosnia-Herzegovina, Bulgaria, Croatia, Czech Republic, Denmark, France, Germany, Hungary, Italy,\nNetherlands, Norway, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland,\nUkraine, United Kingdom, Argentina, Costa Rica, Mexico, Puerto Rico, United States, Bolivia, Brazil, Chile,\nColumbia, Paraguay, Peru, Uruguay, and Venezuela.\n5.8\n“Subject Developments” means all inventions, discoveries, improvements, developments,\ntechnical information, and know-how, (patentable or not), made, developed, invented, discovered or conceived\nby Employee, alone or with others, in the course or as a result of such employment or tasks assigned Employee\nby Praxair.\n5.9\n“Variable Compensation Plan” means the 2002 Praxair, Inc. Variable Compensation Plan, as\nmay be amended from time to time, or any successor variable compensation plan adopted by Praxair.\nSECTION 6. Notices. While employed by Praxair, and for two (2) years thereafter, Employee will: (a) give\nPraxair written notice at least thirty (30) days prior to going to work for a competitor; (b) provide Praxair with\nsufficient information about his or her new position to enable Praxair to determine if Employee’s services in\nthe new position would likely lead to a violation of this Agreement; and (c) within thirty days of Praxair’s\nrequest, participate in a mediation or in-person conference to discuss and/or resolve any issues raised by\nEmployee’s new position. Employee will be responsible for all consequential damages caused by failure to\ngive Praxair notice as provided in this Section.\nSECTION 7. Remedies. If Employee breaches or threatens to breach this Agreement, Praxair may recover: (a)\nan order of specific performance or declaratory relief; (b) injunctive relief by temporary restraining order,\ntemporary injunction, and/or permanent injunction; (c) damages; (d) attorney's fees and costs incurred in\nobtaining relief; and (e) any other legal or equitable relief or remedy allowed by law. One Thousand Dollars\n($1,000.00) is the agreed amount for the bond to be posted if an injunction is sought by Praxair to enforce the\nrestrictions in this Agreement on Employee. Employee also agrees that if s/he challenges the enforceability of\nthe Protective Covenants in Section 4 of this Agreement, and any such provisions are found to be\nunenforceable, then: (x) Employee will owe Praxair an amount equal to the sum of any and all such payments,\nincluding the value of any benefits provided in kind, that Employee has received under the CIC Agreement and\nEmployee will waive his/her right to any further benefits thereunder; and (y) Employee will owe Praxair an\namount equal to the sum of any and all payments that Employee has received under the Variable Compensation\nPlan during the two (2) year period immediately preceding the end of Employee’s employment with Praxair.\nSECTION 8. Severability, Waiver, Modification, Assignment, Governing Law. (a) It is the intention of the\nParties that if any provision of the Agreement is determined by a court of competent jurisdiction to be void,\nillegal or unenforceable, in whole or in part, all other provisions will remain in full force and effect, as if the\nvoid, illegal, or unenforceable provision is not part of the Agreement. (b) If either Party waives his, her, or its\nright to pursue a claim for the other’s breach of any provision of the Agreement, the waiver will not extinguish\nthat Party’s right to pursue a claim for a subsequent breach. (c) Except where otherwise expressly indicated, the\nAgreement contains the Parties’ entire agreement concerning the matters covered in it; provided that if a\npost-employment restrictive covenant in this Agreement is found unenforceable (despite, and after application\nof, any applicable right to reformation that could add or renew enforceability), then any prior agreement\nbetween the Parties that would provide for a restriction on the same or substantially similar post-employment\nconduct of Employee shall not be considered superseded and shall remain in effect. The Agreement may not be\nwaived, modified, altered or amended except by written agreement of all Parties or by court order. (d) The\nAgreement will inure to the benefit of Praxair’s successors in interest, Affiliates, subsidiaries, parents,\npurchasers, or assignees, and may be enforced by any one or more of same, without need of any further\nauthorization or agreement from Employee. (e) The laws of the State of Connecticut will govern the\nAgreement, the construction of its terms, and the interpretation of the rights and duties of the Parties, regardless\nof any conflicts of law principles of the state. The exclusive venue for any legal action arising from this\nAgreement will be the state or federal courts of Connecticut. Employee stipulates and consents to the state or\nfederal courts of Connecticut’s personal jurisdiction over him or her, and waives his or her right to objection to\na Connecticut court’s jurisdiction.\nSECTION 9. Jury Trial Waiver. The Parties hereby waive their right to jury trial on any legal dispute arising\nfrom or relating to this Agreement, and consent to the submission of all issues of fact and law arising from this\nAgreement to the judge of a court of competent jurisdiction as otherwise provided for\nabove.\nSECTION 10. Effect on Prior Agreements. Except as otherwise provided herein, this Agreement shall\nsupersede the Non Compete and Non Solicitation Agreement between Praxair and the Employee dated as of\nFebruary 24, 1999 that Employee previously entered into as a condition of employment with, or promotion by,\nPraxair. Employee acknowledges that the obligations undertaken in this Agreement are separate from his or her\nobligations to Praxair in other agreements Employee has with Praxair, including but not limited to any\nConfidentiality or Memorandum of Employment Agreement, and that the enforceability of this Agreement has\nno bearing on any other agreements.\nNothing in this Agreement will be construed to create a contract of employment for a definite period of time or\nto prohibit either Party from having the freedom to end the employment relationship at-will, with or without\ncause.\nAGREED to and effective as of April 27, 2010.\nEMPLOYEE:\n/s/ Scott Telesz______________________\n(signature)\nPRAXAIR, INC.\nBy: /s/Stephen F. Angel__________________\nStephen F. Angel\nPrinted Name: Scott Telesz\n.\nIts: Chairman and Chief Executive Officer	EXHIBIT C\nNONDISCLOSURE, NONSOLICITATION AND NONCOMPETITION AGREEMENT\nTHIS NONDISCLOSURE, NONSOLICITATION AND NONCOMPETITION AGREEMENT\n(”A greement”), dated as of April 27, 2010, is between Scott Telesz (”Employee”) and Praxair, Inc. (Praxair,\nInc. and its Affiliates are collectively referred to herein as ”Praxair”). Employee and Praxair are collectively\nreferred to herein as the ”Parties”.\nSECTION 1. Reason for Agreement. The industrial gases and other businesses in which Praxair participates\nare intensely competitive. All of the major companies that compete in these businesses are continually\nsearching for competitive advantage that will give them a benefit over their competitors in the marketplace.\nPraxair develops its employees by providing them with training, education, access to Praxair“ s intellectual\nproperty, systems, strategies and other confidential information in order to make them as competitive and\neffective as possible in performing their jobs for the benefit of Praxair“ s shareholders and other constituencies\nwith an interest in Praxair“ s success: its employees, customers, suppliers and the communities in which Praxair\ndoes business. The loss of an employee represents the loss of a significant investment and competitive asset to\nPraxair, and if the employee is lost to a competitor, that investment could be used against Praxair in the\ncompetitive marketplace. The purpose of this Agreement is to protect Praxair“ s investment in its employees, its\nstrategic Confidential Information (as defined herein) and customers, and to prevent that investment from being\nused against Praxair for a reasonable period of time.\nSECTION 2. C onsideration. Employee acknowledges that Praxair has offered Employee both the benefits\nand protection under a CIC Agreement (as defined herein), as well as continued eligibility to participate in the\nVariable Compensation Plan (as defined herein), as consideration for Employee’s agreement to all the terms of\nthis Agreement. Employee understands and agrees that this consideration has material value and benefit, above\nand beyond any continuation of Praxair employment, and that Employee would not be entitled to such\nconsideration unless he or she signs and agrees to be bound by this Agreement. Praxair agrees to provide\nEmployee this consideration only in exchange for his or her compliance with all the terms of this Agreement.\nSECTION 3. C onfidentiality and Business Interests. Employee agrees to:\n° keep secret and confidential and neither use nor disclose, by any means, either during or subsequent to\nhis or her employment, any Confidential Information except as provided below or required in his or her\nemployment with, or authorized in writing by, Praxair;\n° assign to Praxair or its designee (and Employee hereby does assign), all right, title and interest in and to\nall Subject Developments;\n° promptly disclose to Praxair all Subject Developments, in writing and in reasonable detail, and to assist\nin the preparation of and to execute all appropriate papers or documents and otherwise provide proper\nassistance to enable Praxair to secure, maintain, enforce and defend its patents, copyrights and any other\nlegal protection available for such Subject Developments in any and all countries;\n° not disclose to Praxair nor to utilize in Employee’s work for Praxair any confidential information or\ntrade secrets of others known to Employee (including prior employers);\n° keep confidential and not disclose or use, either during or subsequent to Employee’ s employment, any\nconfidential information or trade secrets of others which Employee receives during the course of his or\nher employment with Praxair for so long as and to the same extent as Praxair is obligated to retain such\ninformation or trade secrets in confidence; and\n° deliver to Praxair promptly upon the end of Employee’s employment all written and other materials\nwhich constitute or contain Confidential Information or Subject Developments or which are the property\nof Praxair, and to not remove or take any such written and other materials.\nThese obligations will not apply to Confidential Information to the extent that it: (a) is or becomes publicly\nknown by means other than Employee’s failure to live up to his or her obligations under this Agreement; (b)\nwas known to Employee prior to disclosure to Employee by or on behalf of Praxair and Employee can prove it;\nor (c) is received by Employee in good faith from a third party (not an Affiliate) which has no obligation of\nconfidentiality to Praxair with respect thereto. Notwithstanding anything contained herein to the contrary,\nConfidential Information will not lose its protected status under this Agreement if it becomes generally known\nto the public or to other persons through improper means. Praxair“ s confidential exchange of Confidential\nInformation with a third party for business purposes will not remove it from protection under this Agreement.\nIf disclosure of Confidential Information or Subject Developments is compelled by law, Employee shall give\nPraxair as much written notice as possible under the circumstances, will refrain from use or disclosure for as\nlong as the law allows, and will cooperate with Praxair to protect such information, including taking every\nreasonable step necessary to protect against unnecessary disclosure.\nEmployee acknowledges that he or she has been notified by Praxair that the provisions of this Section 3 do not\napply to any invention with respect to which no equipment, supplies, facility, or Confidential Information of\nPraxair was used and which was developed entirely on Employee’ s own time, unless the invention: (a) relates\nto Praxair“ s business or actual or demonstrably anticipated research or development; or (b) results from any\nwork performed by Employee for Praxair. Employee also understands and acknowledges that the copyrights in\nall copyrightable works prepared by Employee, alone or with others, in the course of his or her employment are\nowned solely by Employee’s employer.\nThe provisions of this Section 3 shall continue in effect for the duration of Employee’s employment with\nPraxair at any and all locations, either in the United States or a foreign country and its obligations shall survive\nthe termination of Employee’ s employment for any reason.\nSECTION 4. Protective Covenants. Employee agrees that the following covenants are (a) ancillary to the\nother enforceable agreements contained in this Agreement, and (b) reasonable and necessary to protect\nlegitimate Praxair business interests.\n4.1 Restriction on Interfering with Employee Relationships. Employee agrees that for a period of\ntwo (2) years following the end of his or her employment with Praxair, Employee will not interfere with\nPraxair“ s business relationship with a Praxair employee, by soliciting or communicating with such an\nemployee to induce or encourage him or her to leave Praxair“ s employ (regardless of who first initiates\nthe communication), by helping another person or entity evaluate a Praxair employee as an employment\ncandidate, or by otherwise helping any person or entity hire an employee away from Praxair, unless a\nduly authorized Praxair officer gives Employee written authorization to do so.\n4.2 Restriction on Interfering with Customer Relationships. Employee agree\ns that for a period of two (2) years following the end of his or her employment with Praxair, Employee will not\ninterfere with Praxair s business relationships with a Covered Customer, by soliciting or communicating\n(regardless of who initiates the communication) with a Covered Customer to induce or encourage the Covered\nCustomer to: (a) stop or reduce doing business with Praxair, or (b) to buy a Conflicting Product or Service;\nunless a duly authorized Praxair officer gives Employee written authorization to do so. The Parties agree this\nrestriction is inherently reasonable.\n4.3 Restriction on Unfair C ompetition. Employee agrees that for a period of two (2) years following the end\nof his or her employment with Praxair, Employee will not participate in, supervise, or manage (as an employee,\nconsultant, contractor, officer, owner, director, or otherwise) Competing A ctivities in the Restricted Area.\n4.4 Survival of Restrictions. (a) Before accepting new employment, Employee will advise every future\nemployer of the restrictions in this Agreement. Employee agrees that Praxair may advise a future employer or\nprospective employer of this Agreement and its position on the potential application of this Agreement. (b) The\nAgreement’ s post- employment obligations will survive the termination of Employee’ s employment with\nPraxair, regardless of the cause of the termination. If Employee violates one of the post- employment\nrestrictions in this Agreement on which there is a specific time limitation, the time period for that restriction\nwill be extended by one day for each day Employee violates it, up to a maximum extension equal to the length\nof time prescribed for the restriction, so as to give Praxair the full benefit of the bargained-for length of\nforbearance. (c) It is the intention of the Parties that, if any court construes any provision or clause of this\nAgreement, or any portion thereof, to be illegal, void or unenforceable, because of duration of such provision,\nthe geographic scope or the subject matter covered thereby, such court shall reduce the duration, area, or matter\nof such provision, and, in its reduced form, such provision shall then be enforceable and shall be enforced. (d)\nIf Employee becomes employed with an Affiliate without signing a new agreement, the Affiliate will step into\nPraxair s position under this Agreement, and will be entitled to the same protections and enforcement rights as\nPraxair.\n4.5 State Specific Modifications. While employee is a resident of Connecticut, the restrictions on use\nor disclosure of Confidential Information in Section 3 will only apply for three (3) years after the end of\nEmployee’s employment, where information that does not qualify as a trade secret is concerned; however, the\nrestrictions will continue to apply to trade secret information for as long as the information at issue remains\nqualified as a trade secret.\nSECTION 5. Definitions. For purposes of this Agreement, the following terms shall have the meanings\nassigned to them below:\n5.1”Affiliate” means: (a) any corporation 10% or more of the voting stock of which is owned or\ncontrolled by Praxair, Inc., or (b) any corporation owning or controlling 50% or more of the voting stock of\nPraxair, Inc. ; or (c) any corporation 25% or more of the voting stock of which is owned or controlled by a\ncorporation owning or controlling 50% or more of the voting stock of Praxair, Inc. ; or (d) any unincorporated\nentity, including a partnership, in which Praxair, Inc. has a 25% or more ownership interest, or which has a\n50% or more ownership interest in Praxair, Inc., or in which an entity having a 50% or more ownership interest\nin Praxair, Inc. has a 25% or more ownership interest.\n5.2”CIC Agreement” means the Severance Compensation Agreement, the form of which is attached\nhereto, that will provide Employee with severance and other valuable benefits in the event his or her Praxair\nemployment terminates for certain reasons within two (2) years after a change in control of\nPraxair (as defined in the CIC Agreement).\n5.3”C ompeting Activities” are any activities or services undertaken on behalf of a competitor (which is\nunderstood to mean any person or entity engaged in the business of providing a Conflicting Product or Service\nin the Restricted Area) that are the same or similar in function or purpose to those Employee performed for\nPraxair in the two (2) year period preceding the end of Employee’s employment with Praxair, or that are\notherwise likely to result in the use or disclosure of Confidential Information. Competing Activities are\nunderstood to exclude: activities on behalf of an independently operated subsidiary, division, or unit of a\ndiversified corporation or similar business that has common ownership with a competitor so long as the\nindependently operated business unit does not involve a Conflicting Product or Service; and, a passive and\nnon-controlling ownership interest in a competitor through ownership of less than 2% of the stock in a publicly\ntraded company.\n5.4”C onfidential Information” includes but is not limited to: (a) any technical or business information,\nknow-how or trade secrets, patentable or not, in any form, including but not limited to data; diagrams; business,\nmarketing or sales plans; notes; drawings; models; prototypes; specifications; manuals; memoranda; reports;\ncustomer or vendor information; pricing or cost information; and computer programs, which are furnished to\nEmployee by Praxair or which Employees procures or prepares, alone or with others, in the course of his or her\nemployment; and (b) Subject Developments.\n5.5”C onflicting Product or Service” is a product and/or service that is the same or similar in function\nor purpose to a Praxair product and/or service, such that it would replace or compete with: (a) a product and/or\nservice Praxair provides to its customers; or (b) a product or service that is under development or planning by\nPraxair but not yet provided to customers and regarding which Employee was provided Confidential\nInformation in the course of employment. Conflicting Products or Services do not include a product or service\nof Praxair if Praxair is no longer in the business of providing such product or service to its customers at the\nrelevant time of enforcement.\n5.6 ”C overed Customer” is a Praxair customer (person or entity) Employee had business-related\ncontact or dealings with, or received Confidential Information about, in the two (2) year period preceding the\nend of Employee’s employment with Praxair. References to the end of Employee’s employment in this\nA greement refer to the end, whether by resignation or termination, and without regard for the reason\nemployment ended.\n5.7 ”Restricted Area” is the United States and the additional areas within Asia, Europe, North\nAmerica, Central America and South America where Praxair marketed (either individually, through\nsubsidiaries, and/or through strategic alliances or partner companies) its products and services at any time\nduring the twelve months preceding the termination of Employee’ s employment with Praxair. The Parties agree\nthat, at the time of execution of this Agreement, the Restricted Area includes, but is not necessarily limited to:\nChina, Austria, India, Japan, Korea, Malaysia, Singapore, Taiwan, Thailand, Canada, Belgium,\nBosnia-Herzegovina, Bulgaria, Croatia, Czech Republic, Denmark, France, Germany, Hungary, Italy,\nNetherlands, Norway, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland,\nUkraine, United Kingdom, Argentina, Costa Rica, Mexico, Puerto Rico, United States, Bolivia, Brazil, Chile,\nColumbia, Paraguay, Peru, Uruguay, and Venezuela.\n5.8 ”Subject Developments” means all inventions, discoveries, improvements, developments,\ntechnical information, and know-how, (patentable or not), made, developed, invented, discovered or conceived\nby Employee, alone or with others, in the course or as a result of such employment or tasks assigned Employee\nby Praxair.\n5.9 ”V ariable Compensation Plan” means the 2002 Praxair, Inc. Variable Compensation Plan, as\nmay be amended from time to time, or any successor variable compensation plan adopted by Praxair.\nSECTION 6. Notices. While employed by Praxair, and for two (2) years thereafter, Employee will: (a) give\nPraxair written notice at least thirty (30) days prior to going to work for a competitor, (b) provide Praxair with\nsufficient information about his or her new position to enable Praxair to determine if Employee’s services in\nthe new position would likely lead to a violation of this Agreement; and (c) within thirty days of Praxair’ s\nrequest, participate in a mediation or in-person conference to discuss and/or resolve any issues raised by\nEmployee’s new position. Employee will be responsible for all consequential damages caused by failure to\ngive Praxair notice as provided in this Section.\nSECTION 7. Remedies. If Employee breaches or threatens to breach this Agreement, Praxair may recover: (a)\nan order of specific performance or declaratory relief; (b) injunctive relief by temporary restraining order,\ntemporary injunction, and/or permanent injunction; (c) damages; (d) attorney's fees and costs incurred in\nobtaining relief; and (e) any other legal or equitable relief or remedy allowed by law. One Thousand Dollars\n($1,000.00) is the agreed amount for the bond to be posted if an injunction is sought by Praxair to enforce the\nrestrictions in this Agreement on Employee. Employee also agrees that if s/he challenges the enforceability of\nthe Protective Covenants in Section 4 of this Agreement, and any such provisions are found to be\nunenforceable, then: (x) Employee will owe Praxair an amount equal to the sum of any and all such payments,\nincluding the value of any benefits provided in kind, that Employee has received under the CIC Agreement and\nEmployee will waive his/her right to any further benefits thereunder; and (y) Employee will owe Praxair an\namount equal to the sum of any and all payments that Employee has received under the Variable Compensation\nPlan during the two (2) year period immediately preceding the end of Employee’ s employment with Praxair.\nSECTIO N 8. Severability, Waiver, Modification, Assignment, G overning L aw. (a) It is the intention of the\nParties that if any provision of the Agreement is determined by a court of competent jurisdiction to be void,\nillegal or unenforceable, in whole or in part, all other provisions will remain in full force and effect, as if the\nvoid, illegal, or unenforceable provision is not part of the Agreement. (b) If either Party waives his, her, or its\nright to pursue a claim for the other s breach of any provision of the Agreement, the waiver will not extinguish\nthat Party’s right to pursue a claim for a subsequent breach. (c) Except where otherwise expressly indicated, the\nAgreement contains the Parties’ entire agreement concerning the matters covered in it; provided that if a\npost- employment restrictive covenant in this Agreement is found unenforceable (despite, and after application\nof, any applicable right to reformation that could add or renew enforceability), then any prior agreement\nbetween the Parties that would provide for a restriction on the same or substantially similar post-employment\nconduct of Employee shall not be considered superseded and shall remain in effect. The Agreement may not be\nwaived, modified, altered or amended except by written agreement of all Parties or by court order. (d) The\nAgreement will inure to the benefit of Praxair’ s successors in interest, Affiliates, subsidiaries, parents,\npurchasers, or assignees, and may be enforced by any one or more of same, without need of any further\nauthorization or agreement from Employee. (e) The laws of the State of Connecticut will govern the\nAgreement, the construction of its terms, and the interpretation of the rights and duties of the Parties, regardless\nof any conflicts of law principles of the state. The exclusive venue for any legal action arising from this\nAgreement will be the state or federal courts of Connecticut. Employee stipulates and consents to the state or\nfederal courts of Connecticut’s personal jurisdiction over him or her, and waives his or her right to objection to\na Connecticut court’ s jurisdiction.\nSECTION 9. |ury Trial Waiver. The Parties hereby waive their right to jury trial on any legal dispute arising\nfrom or relating to this Agreement, and consent to the submission of all issues of fact and law arising from this\nAgreement to the judge of a court of competent jurisdiction as otherwise provided for\nabove.\nSECTION 10. Effect on Prior Agreements. Except as otherwise provided herein, this Agreement shall\nsupersede the Non Compete and Non Solicitation Agreement between Praxair and the Employee dated as of\nFebruary 24, 1999 that Employee previously entered into as a condition of employment with, or promotion by,\nPraxair. Employee acknowledges that the obligations undertaken in this Agreement are separate from his or her\nobligations to Praxair in other agreements Employee has with Praxair, including but not limited to any\nConfidentiality or Memorandum of Employment Agreement, and that the enforceability of this Agreement has\nno bearing on any other agreements.\nNothing in this Agreement will be construed to create a contract of employment for a definite period of time or\nto prohibit either Party from having the freedom to end the employment relationship at-will, with or without\ncause.\nAGREED to and effective as of April 27, 2010.\n \nEMPLOYEE: PRAXAIR, INC.\n/s/ Scott Telesz By: /s/Stephen F. Angel _________________\n(signature) Stephen F. Angel\nPrinted Name: Scott Telesz Its: Chairman and Chief Executive Officer	EXHIBIT C\nNONDISCLOSURE NONSOLICITATION AND NONCOMPETITION AGREEMENT\nTHIS NONDISCLOSURE, NONSOLICITATION AND NONCOMPETITION AGREEMENT\ngreement"), dated as of pril 27, 2010, is between Scott Telesz ("Employee") and Praxair, Inc. (Praxair,\nInc. and its A ffiliates are collectively referred to herein as "Praxair"). Employee and Praxair are collectively\nreferred to herein as the "Parties".\nSECTION 1. Reason for Agreement. The industrial gases and other businesses in which Praxair participates\nare intensely competitive. All of the major companies that compete in these businesses are continually\nsearching for competitive advantage that will give them a benefit over their competitors in the marketplace.\nPraxair develops its employees by providing them with training, education, access to Praxair intellectual\nproperty, systems, strategies and other confidential information in order to make them as competitive and\neffective as possible in performing their jobs for the benefit of Praxair's shareholders and other constituencies\nwith\nan\ninterest\nin\nPraxair's\nsuccess:\nits\nemployees,\ncustomers,\nsuppliers\nand\nthe\ncommunities\nin\nwhich\nPraxair\ndoes business. The loss of an employee represents the loss of a significant investment and competitive asset to\nPraxair, and if the employee is lost to a competitor, that investment could be used against Praxair in the\ncompetitive marketplace. The purpose of this A greement is to protect Praxair' investment in its employees its\nstrategic Confidential Information (as defined herein) and customers, and to prevent that investment from being\nused against Praxair for a reasonable period of time.\nSECTION 2. Consideration. Employee acknowledges that Praxair has offered Employee both the benefits\nand protection under a CIC A greement (as defined herein), as well as continued eligibility to participate in the\nariable Compensation Plan (as defined herein), as consideration for Employee's agreement to all the terms of\nthis A greement. Employee understands and agrees that this consideration has material value and benefit, above\nand beyond any continuation of Praxair employment, and that Employee would not be entitled to such\nconsideration unless he or she signs and agrees to be bound by this A greement. Praxair agrees to provide\nEmployee this consideration only in exchange for his or her compliance with all the terms of this A greement.\nSECTION 3. Confidentiality and Business Interests. Employee agrees to:\nkeep secret and confidential and neither use nor disclose, by any means, either during or subsequent to\nhis or her employment, any Confidential Information except as provided below or required in his or her\nemployment with, or authorized in writing by, Praxair;\nassign to Praxair or its designee (and Employee hereby does assign), all right, title and interest in and to\nall Subject Developments;\npromptly disclose to Praxair all Subject Developments, in writing and in reasonable detail, and to assist\nin the preparation of and to execute all appropriate papers or documents and otherwise provide proper\nassistance to enable Praxair to secure, maintain, enforce and defend its patents, copyrights and any other\nlegal protection available for such Subject Developments in any and all countries;\nnot disclose to Praxair nor to utilize in Employee's work for Praxair any confidential information or\ntrade secrets of others known to Employee (including prior employers);\nkeep confidential and not disclose or use, either during or subsequent to Employee's employment, any\nconfidential information or trade secrets of others which Employee receives during the course of his\nor\nher employment with Praxair for so long as and to the same extent as Praxair is obligated to retain such\ninformation or trade secrets in confidence; and\ndeliver to Praxair promptly upon the end of Employee's employment all written and other materials\nwhich constitute or contain Confidential Information or Subject Developments or which are the property\nof Praxair, and to not remove or take any such written and other materials.\nThese obligations will not apply to Confidential Information to the extent that it: (a) is or becomes publicly\nknown by means other than Employee's failure to live up to his or her obligations under this A greement; (b)\nwas known to Employee prior to disclosure to Employee by or on behalf of Praxair and Employee can prove it;\nor\n(c) is received by Employee in good faith from a third party (not an Affiliate) which has no obligation of\nconfidentiality to Praxair with respect thereto. Notwithstanding anything contained herein to the contrary,\nConfidential Information will not lose its protected status under this A greement if it becomes generally known\nto the public or to other persons through improper means. Praxair's confidential exchange of Confidential\nInformation with a third party for business purposes will not remove it from protection under this A greement\nIf disclosure of Confidential Information or Subject Developments is compelled by law, Employee shall give\nPraxair as much written notice as possible under the circumstances, will refrain from use or disclosure for as\nlong as the law allows, and will cooperate with Praxair to protect such information, including taking every\nreasonable step necessary to protect against unnecessary disclosure.\nEmployee acknowledges that he or she has been notified by Praxair that the provisions of this Section 3 do not\napply\nto\nany\ninvention\nwith\nrespect\nto\nwhich\nno\nequipment,\nsupplies\nfacility,\nor\nConfidential\nInformation\nof\nPraxair was used and which was developed entirely on Employee's own time, unless the invention: (a) relates\nto Praxair's business or actual or demonstrably anticipated research or development or (b) results from any\nwork performed by Employee for Praxair. Employee also understands and acknowledges that the copyrights in\nall copyrightable works prepared by Employee, alone or with others, in the course of his or her employment are\nowned solely by Employee's employer\nThe provisions of this Section 3 shall continue in effect for the duration of Employee's employment with\nPraxair at any and all locations, either in the United States or a foreign country and its obligations shall survive\nthe termination of Employee's employment for any reason.\nSECTION 4. Protective Covenants. Employee agrees that the following covenants are (a) ancillary to the\nother enforceable agreements contained in this A greement, and (b) reasonable and necessary to protect\nlegitimate Praxair business interests.\n4.1 Restriction on Interfering with Employee Relationships. Employee agrees that for a period of\ntwo (2) years following the end of his or her employment with Praxair, Employee will not interfere with\nPraxair business relationship with a Praxair employee, by soliciting or communicating with such an\nemployee to induce or encourage him or her to leave Praxair's employ (regardless of who first initiates\nthe communication), by helping another person or entity evaluate a Praxair employee as an employment\ncandidate, or by otherwise helping any person or entity hire an employee away from Praxair; unless a\nduly authorized Praxair officer gives Employee written authorization to do SO.\n4.2 Restriction on Interfering with Customer Relationships. Employee agree\ns that for a period of two (2) years following the end of his or her employment with Praxair, Employee will not\ninterfere with Praxair's business relationships with a Covered Customer, by soliciting or communicating\n(regardless of who initiates the communication) with a Covered Customer to induce or encourage the Covered\nCustomer to: (a) stop or reduce doing business with Praxair, or (b) to buy a Conflicting Product or Service;\nunless a duly authorized Praxair officer gives Employee written authorization to do so. The Parties agree this\nrestriction is inherently reasonable.\n4.3 Restriction on Unfair Competition. Employee agrees that for a period of two (2) years following the end\nof his or her employment with Praxair, Employee will not participate in, supervise, or manage (as an employee,\nconsultant, contractor, officer, owner, director, or otherwise) Competing ctivities in the Restricted A rea.\n4.4 Survival of Restrictions. (a) efore accepting new employment Employee will advise every future\nemployer of the restrictions in this A greement. Employee agrees that Praxair may advise a future employer or\nprospective employer of this A greement and its position on the potential application of this greement. (b) The\nA greement' post-employment obligations will survive the termination of Employee's employment with\nPraxair, regardless of the cause of the termination. If Employee violates one of the post-employment\nrestrictions in this A greement on which there is a specific time limitation, the time period for that restriction\nwill be extended by one day for each day Employee violates it, up to a maximum extension equal to the length\nof time prescribed for the restriction, so as to give Praxair the full benefit of the bargained-for length of\nforbearance. (c) It is the intention of the Parties that, if any court construes any provision or clause of this\nA\ngreement,\nor\nany\nportion\nthereof,\nto\nbe\nillegal,\nvoid\nor\nunenforceable,\nbecause\nof\nduration\nof\nsuch\nprovision,\nthe geographic scope or the subject matter covered thereby, such court shall reduce the duration, area, or matter\nof such provision and, in its reduced form, such provision shall then be enforceable and shall be enforced (d)\nIf Employee becomes employed with an Affiliate without signing a new agreement, the Affiliate will step into\nPraxair' position under this A greement, and will be entitled to the same protections and enforcement rights as\nPraxair.\n4.5 State Specific Modifications. While employee is a resident of Connecticut, the restrictions on use\nor disclosure of Confidential Information in Section 3 will only apply for three (3) years after the end of\nEmployee' employment where information that does not qualify as a trade secret is concerned; however, the\nrestrictions will continue to apply to trade secret information for as long as the information at issue remains\nqualified as a trade secret\nSECTION 5. Definitions. For purposes of this A greement, the following terms shall have the meanings\nassigned to them below:\n"Affiliate" means: (a) any corporation 10% or more of the voting stock of which is owned or\ncontrolled by Praxair, Inc., or (b) any corporation owning or controlling 50% or more of the voting stock of\nPraxair, Inc.; or (c) any corporation 25% or more of the voting stock of which is owned or controlled by a\ncorporation owning or controlling 50% or more of the voting stock of Praxair, Inc.; or (d) any unincorporated\nentity, including a partnership, in which Praxair, Inc. has a 25% or more ownership interest, or which has a\n50% or more ownership interest in Praxair, Inc., or in which an entity having a 50% or more ownership interest\nin Praxair, Inc. has a 25% or more ownership interest.\n5.2"CIC Agreement" means the Severance Compensation A greement, the form of which is attached\nhereto, that will provide Employee with severance and other valuable benefits in the event his or her Praxair\nemployment terminates for certain reasons within two (2) years after a change in control of\nPraxair (as defined in the CIC A greement).\n5.3" ompeting Activities" are any activities or services undertaken on behalf of a competitor (which is\nunderstood to mean any person or entity engaged in the business of providing a Conflicting Product or Service\nin the Restricted A rea) that are the same or similar in function or purpose to those Employee performed for\nPraxair in the two (2) year period preceding the end of Employee's employment with Praxair, or that are\notherwise likely to result in the use or disclosure of Confidential Information. Competing A ctivities are\nunderstood to exclude: activities on behalf of an independently operated subsidiary, division, or unit of a\ndiversified corporation or similar business that has common ownership with a competitor so long as the\nindependently operated business unit does not involve a Conflicting Product or Service; and, a passive and\nnon-controlling ownership interest in a competitor through ownership of less than 2% of the stock in a publicly\ntraded company.\nonfidential Information" includes but is not limited to: (a) any technical or business information,\nknow-how or trade secrets, patentable or not, in any form, including but not limited to data; diagrams; business,\nmarketing\nor\nsales\nplans;\nnotes;\ndrawings;\nmodels;\nprototypes;\nspecifications;\nmanuals;\nmemoranda;\nreports;\ncustomer or vendor information; pricing or cost information; and computer programs, which are furnished to\nEmployee by Praxair or which Employees procures or prepares, alone or with others, in the course of his or her\nemployment; and (b) Subject Developments.\n'Conflicting Product or Service" is a product and/or service that is the same or similar in function\nor purpose to a Praxair product and/or service, such that it would replace or compete with: (a) a product and/or\nservice Praxair provides to its customers; or (b) a product or service that is under development or planning by\nPraxair but not yet provided to customers and regarding which Employee was provided Confidential\nInformation in the course of employment. Conflicting Products or Services do not include a product or service\nof Praxair if Praxair is no longer in the business of providing such product or service to its customers at the\nrelevant time of enforcement.\n5.6 "Covered Customer" is a Praxair customer (person or entity) Employee had business-related\ncontact or dealings with, or received Confidential Information about, in the two (2) year period preceding the\nend of Employee's employment with Praxair. References to the end of Employee's employment in this\nA greement refer to the end, whether by resignation or termination, and without regard for the reason\nemployment ended.\n5.7 "Restricted Area" is the United States and the additional areas within Asia, Europe, North\nA merica, Central merica and South A merica where Praxair marketed (either individually, through\nsubsidiaries, and/or through strategic alliances or partner companies) its products and services at any time\nduring the twelve months preceding the termination of Employee's employment with Praxair. The Parties agree\nthat, at the time of execution of this A greement, the Restricted A rea includes, but is not necessarily limited to:\nChina, ustria India, Japan, Korea, Malaysia, Singapore, Taiwan, Thailand, Canada, Belgium,\nBosnia-Herzegovina, Bulgaria, Croatia, Czech Republic, Denmark, France, Germany, Hungary, Italy,\nNetherlands, Norway, Portugal Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland,\nUkraine, United Kingdom, Argentina, Costa Rica, Mexico, Puerto Rico, United States, Bolivia, Brazil, Chile,\nColumbia, Paraguay, Peru, Uruguay, and Venezuela.\n5.8 "Subject Developments" means all inventions, discoveries, improvements, developments,\ntechnical information, and know-how, (patentable or not), made, developed, invented, discovered or conceived\nby Employee, alone or with others, in the course or as a result of such employment or tasks assigned Employee\nby Praxair.\n5.9 "Variable Compensation Plan" means the 2002 Praxair, Inc. Variable Compensation Plan, as\nmay be amended from time to time, or any successor variable compensation plan adopted by Praxair.\nSECTION 6. Notices. While employed by Praxair, and for two (2) years thereafter Employee will: (a) give\nPraxair written notice at least thirty (30) days prior to going to work for a competitor; (b) provide Praxair with\nsufficient information about his or her new position to enable Praxair to determine if Employee's services in\nthe new position would likely lead to a violation of this A greement; and (c) within thirty days of Praxair'\nrequest, participate in a mediation or in-person conference to discuss and/or resolve any issues raised by\nEmployee's new position Employee will be responsible for all consequential damages caused by failure to\ngive Praxair notice as provided in this Section\nSECTION 7. Remedies. If Employee breaches or threatens to breach this A greement, Praxair may recover: (a)\nan order of specific performance or declaratory relief; (b) injunctive relief by temporary restraining order,\ntemporary\ninjunction,\nand/or\npermanent\ninjunction\n(c)\ndamages;\n(d)\nattorney's\nfees\nand\ncosts\nincurred\nin\nobtaining relief; and (e) any other legal or equitable relief or remedy allowed by law. One Thousand Dollars\n($1,000.00) is the agreed amount for the bond to be posted if an injunction is sought by Praxair to enforce the\nrestrictions in this A greement on Employee. Employee also agrees that if s/he challenges the enforceability of\nthe Protective Covenants in Section 4 of this A greement, and any such provisions are found to be\nunenforceable, then: (x) Employee will owe Praxair an amount equal to the sum of any and all such payments,\nincluding the value of any benefits provided in kind, that Employee has received under the CIC A greement and\nEmployee will waive his/her right to any further benefits thereunder; and (y) Employee will owe Praxair an\namount equal to the sum of any and all payments that Employee has received under the variable Compensation\nPlan during the two (2) year period immediately preceding the end of Employee's employment with Praxair.\nSECTION 8. Severability, Naiver, Modification, Assignment, G overning Law. (a) It is the intention of the\nParties that if any provision of the A greement is determined by a court of competent jurisdiction to be void,\nillegal or unenforceable, in whole or in part, all other provisions will remain in full force and effect, as if the\nvoid, illegal, or unenforceable provision is not part of the A greement (b) If either Party waives his, her, or its\nright to pursue a claim for the other s breach of any provision of the A greement the waiver will not extinguish\nthat Party's right to pursue a claim for a subsequent breach. (c) Except where otherwise expressly indicated, the\nA greement contains the Parties' entire agreement concerning the matters covered in it; provided that if a\npost-employment restrictive covenant in this A greement is found unenforceable (despite, and after application\nof, any applicable right to reformation that could add or renew enforceability), then any prior agreement\nbetween the Parties that would provide for a restriction on the same or substantially similar post-employment\nconduct of Employee shall not be considered superseded and shall remain in effect. The A greement may not be\nwaived, modified altered or amended except by written agreement of all Parties or by court order. (d) The\nA greement will inure to the benefit of Praxair's successors in interest, A ffiliates, subsidiaries, parents,\npurchasers, or assignees, and may be enforced by any one or more of same, without need of any further\nauthorization or agreement from Employee. (e) The laws of the State of Connecticut will govern the\nA greement the construction of its terms, and the interpretation of the rights and duties of the Parties, regardless\nof any conflicts of law principles of the state. The exclusive venue for any legal action arising from this\nA greement will be the state or federal courts of Connecticut. Employee stipulates and consents to the state or\nfederal courts of Connecticut's persona jurisdiction over him or her, and waives his or her right to objection to\na Connecticut court's jurisdiction.\nSECTION 9. ury Trial Waiver. The Parties hereby waive their right to jury trial on any legal dispute arising\nfrom or relating to this A greement, and consent to the submission of all issues of fact and law arising from this\nA greement to the judge of a court of competent jurisdiction as otherwise provided for\nabove.\nSECTION 10. Effect on Prior Agreements. Except as otherwise provided herein, this A greement shall\nsupersede the Non Compete and Non Solicitation A greement between Praxair and the Employee dated as of\nFebruary 24, 1999 that Employee previously entered into as a condition of employment with, or promotion by,\nPraxair. Employee acknowledges that the obligations undertaken in this A greement are separate from his or her\nobligations to Praxair in other agreements Employee has with Praxair, including but not limited to any\nConfidentiality or Memorandum of Employment A greement, and that the enforceability of this A greement has\nno bearing on any other agreements.\nNothing in this A greement will be construed to create a contract of employment for a definite period of time or\nto prohibit either Party from having the freedom to end the employment relationship at-will, with or without\ncause.\nAGREED to and effective as of A pril 27, 2010.\nEMPLOYE EE\nPRAXAIR, INC.\n/s/ Scott Telesz\nBy: /s/Stephen F. A ngel\n(signature)\nStephen F. A ngel\nPrinted Name: Scott Telesz\nIts: Chairman and Chief Executive Officer	EXHIBIT C\nNONDISCLOSURE, NONSOLICITATION AND NONCOMPETITION AGREEMENT\nTHIS NONDISCLOSURE, NONSOLICITATION AND NONCOMPETITION AGREEMENT\n(“Agreement”), dated as of April 27, 2010, is between Scott Telesz (“Employee”) and Praxair, Inc. (Praxair,\nInc. and its Affiliates are collectively referred to herein as “Praxair”). Employee and Praxair are collectively\nreferred to herein as the “Parties”.\nSECTION 1. Reason for Agreement. The industrial gases and other businesses in which Praxair participates\nare intensely competitive. All of the major companies that compete in these businesses are continually\nsearching for competitive advantage that will give them a benefit over their competitors in the marketplace.\nPraxair develops its employees by providing them with training, education, access to Praxair’s intellectual\nproperty, systems, strategies and other confidential information in order to make them as competitive and\neffective as possible in performing their jobs for the benefit of Praxair’s shareholders and other constituencies\nwith an interest in Praxair’s success: its employees, customers, suppliers and the communities in which Praxair\ndoes business. The loss of an employee represents the loss of a significant investment and competitive asset to\nPraxair, and if the employee is lost to a competitor, that investment could be used against Praxair in the\ncompetitive marketplace. The purpose of this Agreement is to protect Praxair’s investment in its employees, its\nstrategic Confidential Information (as defined herein) and customers, and to prevent that investment from being\nused against Praxair for a reasonable period of time.\nSECTION 2. Consideration. Employee acknowledges that Praxair has offered Employee both the benefits\nand protection under a CIC Agreement (as defined herein), as well as continued eligibility to participate in the\nVariable Compensation Plan (as defined herein), as consideration for Employee’s agreement to all the terms of\nthis Agreement. Employee understands and agrees that this consideration has material value and benefit, above\nand beyond any continuation of Praxair employment, and that Employee would not be entitled to such\nconsideration unless he or she signs and agrees to be bound by this Agreement. Praxair agrees to provide\nEmployee this consideration only in exchange for his or her compliance with all the terms of this Agreement.\nSECTION 3. Confidentiality and Business Interests. Employee agrees to:\n•\nkeep secret and confidential and neither use nor disclose, by any means, either during or subsequent to\nhis or her employment, any Confidential Information except as provided below or required in his or her\nemployment with, or authorized in writing by, Praxair;\n•\nassign to Praxair or its designee (and Employee hereby does assign), all right, title and interest in and to\nall Subject Developments;\n•\npromptly disclose to Praxair all Subject Developments, in writing and in reasonable detail, and to assist\nin the preparation of and to execute all appropriate papers or documents and otherwise provide proper\nassistance to enable Praxair to secure, maintain, enforce and defend its patents, copyrights and any other\nlegal protection available for such Subject Developments in any and all countries;\n•\nnot disclose to Praxair nor to utilize in Employee’s work for Praxair any confidential information or\ntrade secrets of others known to Employee (including prior employers);\n•\nkeep confidential and not disclose or use, either during or subsequent to Employee’s employment, any\nconfidential information or trade secrets of others which Employee receives during the course of his or\nher employment with Praxair for so long as and to the same extent as Praxair is obligated to retain such\ninformation or trade secrets in confidence; and\n•\ndeliver to Praxair promptly upon the end of Employee’s employment all written and other materials\nwhich constitute or contain Confidential Information or Subject Developments or which are the property\nof Praxair, and to not remove or take any such written and other materials.\nThese obligations will not apply to Confidential Information to the extent that it: (a) is or becomes publicly\nknown by means other than Employee’s failure to live up to his or her obligations under this Agreement; (b)\nwas known to Employee prior to disclosure to Employee by or on behalf of Praxair and Employee can prove it;\nor (c) is received by Employee in good faith from a third party (not an Affiliate) which has no obligation of\nconfidentiality to Praxair with respect thereto. Notwithstanding anything contained herein to the contrary,\nConfidential Information will not lose its protected status under this Agreement if it becomes generally known\nto the public or to other persons through improper means. Praxair’s confidential exchange of Confidential\nInformation with a third party for business purposes will not remove it from protection under this Agreement.\nIf disclosure of Confidential Information or Subject Developments is compelled by law, Employee shall give\nPraxair as much written notice as possible under the circumstances, will refrain from use or disclosure for as\nlong as the law allows, and will cooperate with Praxair to protect such information, including taking every\nreasonable step necessary to protect against unnecessary disclosure.\nEmployee acknowledges that he or she has been notified by Praxair that the provisions of this Section 3 do not\napply to any invention with respect to which no equipment, supplies, facility, or Confidential Information of\nPraxair was used and which was developed entirely on Employee’s own time, unless the invention: (a) relates\nto Praxair’s business or actual or demonstrably anticipated research or development; or (b) results from any\nwork performed by Employee for Praxair. Employee also understands and acknowledges that the copyrights in\nall copyrightable works prepared by Employee, alone or with others, in the course of his or her employment are\nowned solely by Employee’s employer.\nThe provisions of this Section 3 shall continue in effect for the duration of Employee’s employment with\nPraxair at any and all locations, either in the United States or a foreign country and its obligations shall survive\nthe termination of Employee’s employment for any reason.\nSECTION 4. Protective Covenants. Employee agrees that the following covenants are (a) ancillary to the\nother enforceable agreements contained in this Agreement, and (b) reasonable and necessary to protect\nlegitimate Praxair business interests.\n4.1 Restriction on Interfering with Employee Relationships. Employee agrees that for a period of\ntwo (2) years following the end of his or her employment with Praxair, Employee will not interfere with\nPraxair’s business relationship with a Praxair employee, by soliciting or communicating with such an\nemployee to induce or encourage him or her to leave Praxair’s employ (regardless of who first initiates\nthe communication), by helping another person or entity evaluate a Praxair employee as an employment\ncandidate, or by otherwise helping any person or entity hire an employee away from Praxair; unless a\nduly authorized Praxair officer gives Employee written authorization to do so.\n4.2 Restriction on Interfering with Customer Relationships. Employee agree\ns that for a period of two (2) years following the end of his or her employment with Praxair, Employee will not\ninterfere with Praxair’s business relationships with a Covered Customer, by soliciting or communicating\n(regardless of who initiates the communication) with a Covered Customer to induce or encourage the Covered\nCustomer to: (a) stop or reduce doing business with Praxair, or (b) to buy a Conflicting Product or Service;\nunless a duly authorized Praxair officer gives Employee written authorization to do so. The Parties agree this\nrestriction is inherently reasonable.\n4.3 Restriction on Unfair Competition. Employee agrees that for a period of two (2) years following the end\nof his or her employment with Praxair, Employee will not participate in, supervise, or manage (as an employee,\nconsultant, contractor, officer, owner, director, or otherwise) Competing Activities in the Restricted Area.\n4.4 Survival of Restrictions. (a) Before accepting new employment, Employee will advise every future\nemployer of the restrictions in this Agreement. Employee agrees that Praxair may advise a future employer or\nprospective employer of this Agreement and its position on the potential application of this Agreement. (b) The\nAgreement’s post-employment obligations will survive the termination of Employee’s employment with\nPraxair, regardless of the cause of the termination. If Employee violates one of the post-employment\nrestrictions in this Agreement on which there is a specific time limitation, the time period for that restriction\nwill be extended by one day for each day Employee violates it, up to a maximum extension equal to the length\nof time prescribed for the restriction, so as to give Praxair the full benefit of the bargained-for length of\nforbearance. (c) It is the intention of the Parties that, if any court construes any provision or clause of this\nAgreement, or any portion thereof, to be illegal, void or unenforceable, because of duration of such provision,\nthe geographic scope or the subject matter covered thereby, such court shall reduce the duration, area, or matter\nof such provision, and, in its reduced form, such provision shall then be enforceable and shall be enforced. (d)\nIf Employee becomes employed with an Affiliate without signing a new agreement, the Affiliate will step into\nPraxair’s position under this Agreement, and will be entitled to the same protections and enforcement rights as\nPraxair.\n4.5 State Specific Modifications. While employee is a resident of Connecticut, the restrictions on use\nor disclosure of Confidential Information in Section 3 will only apply for three (3) years after the end of\nEmployee’s employment, where information that does not qualify as a trade secret is concerned; however, the\nrestrictions will continue to apply to trade secret information for as long as the information at issue remains\nqualified as a trade secret.\nSECTION 5. Definitions. For purposes of this Agreement, the following terms shall have the meanings\nassigned to them below:\n5.1“Affiliate” means: (a) any corporation 10% or more of the voting stock of which is owned or\ncontrolled by Praxair, Inc., or (b) any corporation owning or controlling 50% or more of the voting stock of\nPraxair, Inc.; or (c) any corporation 25% or more of the voting stock of which is owned or controlled by a\ncorporation owning or controlling 50% or more of the voting stock of Praxair, Inc.; or (d) any unincorporated\nentity, including a partnership, in which Praxair, Inc. has a 25% or more ownership interest, or which has a\n50% or more ownership interest in Praxair, Inc., or in which an entity having a 50% or more ownership interest\nin Praxair, Inc. has a 25% or more ownership interest.\n5.2“CIC Agreement” means the Severance Compensation Agreement, the form of which is attached\nhereto, that will provide Employee with severance and other valuable benefits in the event his or her Praxair\nemployment terminates for certain reasons within two (2) years after a change in control of\nPraxair (as defined in the CIC Agreement).\n5.3“Competing Activities” are any activities or services undertaken on behalf of a competitor (which is\nunderstood to mean any person or entity engaged in the business of providing a Conflicting Product or Service\nin the Restricted Area) that are the same or similar in function or purpose to those Employee performed for\nPraxair in the two (2) year period preceding the end of Employee’s employment with Praxair, or that are\notherwise likely to result in the use or disclosure of Confidential Information. Competing Activities are\nunderstood to exclude: activities on behalf of an independently operated subsidiary, division, or unit of a\ndiversified corporation or similar business that has common ownership with a competitor so long as the\nindependently operated business unit does not involve a Conflicting Product or Service; and, a passive and\nnon-controlling ownership interest in a competitor through ownership of less than 2% of the stock in a publicly\ntraded company.\n5.4“Confidential Information” includes but is not limited to: (a) any technical or business information,\nknow-how or trade secrets, patentable or not, in any form, including but not limited to data; diagrams; business,\nmarketing or sales plans; notes; drawings; models; prototypes; specifications; manuals; memoranda; reports;\ncustomer or vendor information; pricing or cost information; and computer programs, which are furnished to\nEmployee by Praxair or which Employees procures or prepares, alone or with others, in the course of his or her\nemployment; and (b) Subject Developments.\n5.5“Conflicting Product or Service” is a product and/or service that is the same or similar in function\nor purpose to a Praxair product and/or service, such that it would replace or compete with: (a) a product and/or\nservice Praxair provides to its customers; or (b) a product or service that is under development or planning by\nPraxair but not yet provided to customers and regarding which Employee was provided Confidential\nInformation in the course of employment. Conflicting Products or Services do not include a product or service\nof Praxair if Praxair is no longer in the business of providing such product or service to its customers at the\nrelevant time of enforcement.\n5.6\n“Covered Customer” is a Praxair customer (person or entity) Employee had business-related\ncontact or dealings with, or received Confidential Information about, in the two (2) year period preceding the\nend of Employee’s employment with Praxair. References to the end of Employee’s employment in this\nAgreement refer to the end, whether by resignation or termination, and without regard for the reason\nemployment ended.\n5.7\n“Restricted Area” is the United States and the additional areas within Asia, Europe, North\nAmerica, Central America and South America where Praxair marketed (either individually, through\nsubsidiaries, and/or through strategic alliances or partner companies) its products and services at any time\nduring the twelve months preceding the termination of Employee’s employment with Praxair. The Parties agree\nthat, at the time of execution of this Agreement, the Restricted Area includes, but is not necessarily limited to:\nChina, Austria, India, Japan, Korea, Malaysia, Singapore, Taiwan, Thailand, Canada, Belgium,\nBosnia-Herzegovina, Bulgaria, Croatia, Czech Republic, Denmark, France, Germany, Hungary, Italy,\nNetherlands, Norway, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland,\nUkraine, United Kingdom, Argentina, Costa Rica, Mexico, Puerto Rico, United States, Bolivia, Brazil, Chile,\nColumbia, Paraguay, Peru, Uruguay, and Venezuela.\n5.8\n“Subject Developments” means all inventions, discoveries, improvements, developments,\ntechnical information, and know-how, (patentable or not), made, developed, invented, discovered or conceived\nby Employee, alone or with others, in the course or as a result of such employment or tasks assigned Employee\nby Praxair.\n5.9\n“Variable Compensation Plan” means the 2002 Praxair, Inc. Variable Compensation Plan, as\nmay be amended from time to time, or any successor variable compensation plan adopted by Praxair.\nSECTION 6. Notices. While employed by Praxair, and for two (2) years thereafter, Employee will: (a) give\nPraxair written notice at least thirty (30) days prior to going to work for a competitor; (b) provide Praxair with\nsufficient information about his or her new position to enable Praxair to determine if Employee’s services in\nthe new position would likely lead to a violation of this Agreement; and (c) within thirty days of Praxair’s\nrequest, participate in a mediation or in-person conference to discuss and/or resolve any issues raised by\nEmployee’s new position. Employee will be responsible for all consequential damages caused by failure to\ngive Praxair notice as provided in this Section.\nSECTION 7. Remedies. If Employee breaches or threatens to breach this Agreement, Praxair may recover: (a)\nan order of specific performance or declaratory relief; (b) injunctive relief by temporary restraining order,\ntemporary injunction, and/or permanent injunction; (c) damages; (d) attorney's fees and costs incurred in\nobtaining relief; and (e) any other legal or equitable relief or remedy allowed by law. One Thousand Dollars\n($1,000.00) is the agreed amount for the bond to be posted if an injunction is sought by Praxair to enforce the\nrestrictions in this Agreement on Employee. Employee also agrees that if s/he challenges the enforceability of\nthe Protective Covenants in Section 4 of this Agreement, and any such provisions are found to be\nunenforceable, then: (x) Employee will owe Praxair an amount equal to the sum of any and all such payments,\nincluding the value of any benefits provided in kind, that Employee has received under the CIC Agreement and\nEmployee will waive his/her right to any further benefits thereunder; and (y) Employee will owe Praxair an\namount equal to the sum of any and all payments that Employee has received under the Variable Compensation\nPlan during the two (2) year period immediately preceding the end of Employee’s employment with Praxair.\nSECTION 8. Severability, Waiver, Modification, Assignment, Governing Law. (a) It is the intention of the\nParties that if any provision of the Agreement is determined by a court of competent jurisdiction to be void,\nillegal or unenforceable, in whole or in part, all other provisions will remain in full force and effect, as if the\nvoid, illegal, or unenforceable provision is not part of the Agreement. (b) If either Party waives his, her, or its\nright to pursue a claim for the other’s breach of any provision of the Agreement, the waiver will not extinguish\nthat Party’s right to pursue a claim for a subsequent breach. (c) Except where otherwise expressly indicated, the\nAgreement contains the Parties’ entire agreement concerning the matters covered in it; provided that if a\npost-employment restrictive covenant in this Agreement is found unenforceable (despite, and after application\nof, any applicable right to reformation that could add or renew enforceability), then any prior agreement\nbetween the Parties that would provide for a restriction on the same or substantially similar post-employment\nconduct of Employee shall not be considered superseded and shall remain in effect. The Agreement may not be\nwaived, modified, altered or amended except by written agreement of all Parties or by court order. (d) The\nAgreement will inure to the benefit of Praxair’s successors in interest, Affiliates, subsidiaries, parents,\npurchasers, or assignees, and may be enforced by any one or more of same, without need of any further\nauthorization or agreement from Employee. (e) The laws of the State of Connecticut will govern the\nAgreement, the construction of its terms, and the interpretation of the rights and duties of the Parties, regardless\nof any conflicts of law principles of the state. The exclusive venue for any legal action arising from this\nAgreement will be the state or federal courts of Connecticut. Employee stipulates and consents to the state or\nfederal courts of Connecticut’s personal jurisdiction over him or her, and waives his or her right to objection to\na Connecticut court’s jurisdiction.\nSECTION 9. Jury Trial Waiver. The Parties hereby waive their right to jury trial on any legal dispute arising\nfrom or relating to this Agreement, and consent to the submission of all issues of fact and law arising from this\nAgreement to the judge of a court of competent jurisdiction as otherwise provided for\nabove.\nSECTION 10. Effect on Prior Agreements. Except as otherwise provided herein, this Agreement shall\nsupersede the Non Compete and Non Solicitation Agreement between Praxair and the Employee dated as of\nFebruary 24, 1999 that Employee previously entered into as a condition of employment with, or promotion by,\nPraxair. Employee acknowledges that the obligations undertaken in this Agreement are separate from his or her\nobligations to Praxair in other agreements Employee has with Praxair, including but not limited to any\nConfidentiality or Memorandum of Employment Agreement, and that the enforceability of this Agreement has\nno bearing on any other agreements.\nNothing in this Agreement will be construed to create a contract of employment for a definite period of time or\nto prohibit either Party from having the freedom to end the employment relationship at-will, with or without\ncause.\nAGREED to and effective as of April 27, 2010.\nEMPLOYEE:\n/s/ Scott Telesz______________________\n(signature)\nPRAXAIR, INC.\nBy: /s/Stephen F. Angel__________________\nStephen F. Angel\nPrinted Name: Scott Telesz\n.\nIts: Chairman and Chief Executive Officer
e9b2c9a0186676cb78d90d4453ebe499.pdf	effective_date jurisdiction party term	EX-99.(D)(4) 10 a2227537zex-99_d4.htm EX-99.(D)(4)\nExhibit (d)(4)\nNON-DISCLOSURE AGREEMENT\nThis Agreement is made and entered into as of 16 December 2015 between VTech Holdings Limited of 23/F, Tai Ping Industrial Centre, Block\n1, 57 Ting Kok Road, Tai Po, Hong Kong (“VTech”), and Leapfrog Enterprises, Inc of 6401 Hollis Street, Emeryville, CA94608 (the\n“Leapfrog”).\nThe parties wish to explore a business opportunity of mutual interest (the “Opportunity”) and in connection with this opportunity, Leapfrog\n(“Disclosing Party”) may disclose to the VTech (“Receiving Party”) certain confidential technical and business information (the “Confidential\nInformation”) which the Disclosing Party desires the Receiving Party to treat as confidential. The parties also desire that this Nondisclosure\nAgreement shall supersede and replace the existing Nondisclosure Agreement between the parties dated 1 December 2015.\nVTech and Leapfrog hereby agree as follows:\n1.\nThe term “Confidential Information” shall include, without limitation and regardless of the form of communication, all notes,\nmemoranda, reports, financial results, projections, forecasts, product names, product types, third party contracts, employee information\nand other materials relating to the Opportunity that are marked “CONFIDENTIAL”, regardless of whether such information was\ndisseminated to the Receiving Party prior to or following the signing of this Agreement. However, “Confidential Information” shall not\ninclude any information which the Receiving Party can prove:\n(a)\nhas become generally available to the public through no fault or action of the Receiving Party or any affiliates, agents,\nadvisors, directors, officers or employees of the Receiving Party, its parent, subsidiaries and related companies (collectively\nthe “Related Group”);\n(b)\nwas in the possession of the Related Group prior to the date of this Agreement, provided that such information is not known\nby the Receiving Party to be subject to another confidentiality agreement with or other obligation of secrecy to the Disclosing\nParty;\n(c)\nis or becomes available to the Related Group on a non-confidential basis from any third party (whether such information was\ndisseminated to the Related Group prior to or after the Effective Date of this Agreement), the disclosure of which to the\nRelated Group does not violate any contractual, legal or fiduciary obligation such third party has to the Disclosing Party;\n(d)\nis independently ascertained by the Related Group or is developed by or for the Related Group by their employees or any\nthird party which have not had access either directly or indirectly to the Confidential Information.\n2.\nIt is understood and agreed that all Confidential Information is the property of the Disclosing Party and shall remain the property of the\nDisclosing Party, and it and all copies of it (other than routinely created archival copies during transmission of the\nConfidential Information by electronic means) shall be returned to Disclosing Party on request by Disclosing Party.\n3.\nThe Confidential Information will be kept confidential by the Related Group by using the same degree of care as for its own information\nof like importance, but at least use reasonable care, in safeguarding against disclosure of Confidential Information for a period of one\n(1) year from the date of receipt by the Receiving Party, provided that (a) if Confidential Information is subject to a third party\nconfidentiality obligation on the part of Disclosing Party that extends beyond the one (1) year from the date of receipt by the Receiving\nParty, then the Related Group shall abide by the obligations set forth in this Agreement with respect to such Confidential Information\nfor the term of Disclosing Party’s confidentiality obligation applicable to such Confidential Information, (b) with respect to Confidential\nInformation consisting of Reading product or New Platform Product and their marketing plans, the Related Group shall abide by the\nobligations set forth in this Agreement for a period of two (2) years from the date of receipt by the Receiving Party of such Confidential\nInformation, and (c) with respect to Confidential Information consisting of personally identifiable consumer or employee information,\nsource code or Privileged Materials, the Related Group shall abide by the obligations set forth in this Agreement in perpetuity.\nWithout limiting the foregoing, without the prior written consent of the Disclosing Party, the Related Group shall not:\n(i) distribute or disclose any of the Confidential Information in any manner;\n(ii) permit any third party access to the Confidential Information other than the Related Group; or\n(iii) use the Confidential Information for any purpose other than for assessment of the Opportunity.\nHowever, the Receiving Party may transmit the Confidential Information to their attorneys, accountants, agents, directors and officers\nwho need to know the Confidential Information for the purpose of business with the Disclosing Party and who are informed of the\nconfidential nature of the information and who are bound by confidentiality terms at least as restrictive as the terms of this Agreement.\nThe Receiving Party shall be responsible for any breach of this Agreement by any of such persons.\nTo the extent that any Confidential Information may include materials subject to the attorney-client privilege, work product doctrine or\nany other applicable privilege concerning pending or threatened legal proceedings or governmental investigations (“Privileged\nMaterial”), the parties understand and agree that they have a commonality of interest with respect to such matters and it is their mutual\ndesire, intention and understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the\nconfidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. All Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other\napplicable privilege or doctrine shall remain entitled to\nsuch protection under these privileges or doctrines, under this Agreement and under the joint defense doctrine.\nFor a period of one (1) year from the date hereof, the Related Group shall not, directly or indirectly, solicit to employ or entice away or\noffer to enter into any agreement with any person who (i) is, or within the prior six (6) months was, an officer of Disclosing Party or any\nof its affiliates or subsidiaries, or (ii) is, or within the prior six (6) months was, employed in any capacity by Disclosing Party or any of\nits affiliates or subsidiaries and with whom Receiving Party or any affiliates or Representatives of Receiving Party came in contact or\nfirst identified during the process of considering the Potential Transaction; provided, that this section shall not prevent Receiving Party\nor its affiliates from hiring a person identified in clause (i) or (ii) (a “Covered Person”) if such Covered Person: (1) contacts Receiving\nParty or its affiliates or Representatives on the Covered Person’s own initiative without any direct or indirect solicitation by or\nencouragement from Receiving Party or its affiliates or Representatives; or (2) responds to a general solicitation of employment not\nspecifically directed toward Disclosing Party or any of its subsidiaries or particular employees of Disclosing Party or any of its\nsubsidiaries.\n4.\nIn the event that the Related Group receives a request to disclose all or any part of the Confidential Information under the terms of a\nvalid and effective subpoena or order issued by a court of competent jurisdiction or by a governmental body, the Receiving Party agrees\nto timely notify the Disclosing Party such a request so that the Disclosing Party may seek an appropriate protective order and/or waive\ncompliance by the Related Group with the appropriate provisions of this Agreement. If, in the absence of a protective order, the Related\nGroup determines, upon the advice of counsel, that it is required to disclose such information, it will disclose only that portion thereof\nwhich it is compelled to disclose.\n5.\nExcept as required by applicable law, regulation or stock exchange rule, without the prior written consent of the Disclosing Party, the\nReceiving Party will not disclose to any third party the fact that the Confidential Information has been made available to the Receiving\nParty or that the Disclosing Party and the Receiving Party are discussing the Opportunity.\n6.\nThe Disclosing Party shall not be deemed to make any representation or warranty as to the accuracy or completeness of the Confidential\nInformation. The Receiving Party does not receive any right or license, express or implied, under any patents, copyrights, trade secrets,\nor other intellectual property rights of the Disclosing Party under this Agreement.\n7.\nThe Related Group, when requested by the Disclosing Party, shall promptly and at the Disclosing Party’s option either return or destroy\nall written Confidential Information, including all copies, then in the Related Group’s possession; provided, however, that the Receiving\nParty may retain one copy in the confidential, restricted access files of its law or patent department or outside patent counsel for use\nonly in the event a dispute arises between the parties under this Agreement and only in connection with that dispute.\n8.\nIt is understood that this Agreement does not obligate the parties or any of their respective parent, subsidiary, or related companies to\nenter into or continue any further agreement or\nbusiness relationship. Subject to the provisions of this Agreement, nothing in this Agreement nor discussions and/or communications\nbetween the parties will serve to impair the right of either party to independently develop, make, use, procure, and/or market products or\nservices now or in the future that may be competitive with those offered by the other, nor require either party to disclose any planning or\nother information to the other.\n9.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the\nconflicts of law principles thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of any State or\nFederal court sitting in Delaware over any suit, action or proceeding arising out of or relating to this Agreement. Each party hereby\nagrees that service of any process, summons, notice or document by U.S . registered mail addressed to such party shall be effective\nservice of process for any action, suit or proceeding brought against such party in any such court. Each party agrees that a final\njudgment in any suit, action or proceeding brought in such court under this clause 9 shall be conclusive and binding upon such party and\nmay be enforced in any other courts to whose jurisdiction such party is or may be subject, by suit upon judgment.\n10.\nEach of the parties hereto recognizes and acknowledges the competitive value and confidential nature of the Confidential Information\nand that irreparable damage may result to either party if information contained therein or derived therefrom is disclosed to any person\nexcept as herein allowed or is used for any purpose other than the evaluation and negotiation of the Opportunity. Each of the parties\nhereto further understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by either\nparty, and that the non-breaching party shall be entitled to seek equitable relief, including injunctive relief and specific performance, as a\nremedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement by any of\nthe parties hereto, but shall be in addition to all of the non-breaching party’s other remedies available at law or in equity.\n11.\nThe Disclosing Party’s waiver of any breach or failure to enforce any of the provisions of this Agreement at any time shall not in any\nway affect, limit or waive the Disclosing Party’s right thereafter to enforce and compel strict compliance with every provision hereof.\n12.\nNo modification of this Agreement shall be effective unless in writing and signed by both parties.\n13.\n13.\nThis Agreement is effective on the date of this Agreement (“Effective Date”) and will remain in force for two (2) years unless\nterminated by either party by giving 30 days written notice. The Receiving Party’s obligations regarding Confidential Information as\nstated in paragraphs 3, 4 and 7 will survive after the expiration or termination of this Agreement.\n14.\nIf any provision of this Agreement is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the\nremaining provisions will not be affected.\n15.\nThis Agreement is not assignable to a third party without the prior written consent of the other party.\n16.\nThis Agreement constitutes the complete agreement between the parties concerning the subject matter hereof and supersedes and\ncancels any and all prior communications and agreements between the parties with respect thereto. In particular, this Agreement\nsupersedes and replaces the existing Nondisclosure Agreement between the parties dated 1 December 2015 such that any information\ndisclosed by a party on or after 11 November 2015 shall be subject to the terms and conditions of this Agreement.\nThe undersigned parties intending to be legally bound by this Agreement have executed this Agreement as of 16 December 2015.\nFor and on behalf of VTech Holdings Limited\nFor and on behalf of Leapfrog Enterprises, Inc.\n/s/ Pang King Fai\n/s/ Robert Lattuppa\nName: PANG KING FAI\nName: ROBERT LATTUPA\nTitle: EXECUTIVE DIRECTOR\nTitle:\nGeneral Counsel	EX-99.(D)(4) 10 a2227537zex-99_d4.htm EX-99.(D)(4) Exhibit (d)(4)\nNON-DISCLOSURE AGREEMENT\nThis Agreement is made and entered into as of 16 December 2015 between VTech Holdings Limited of 23/F, Tai Ping Industrial Centre, Block 1, 57 Ting Kok Road, Tai Po, Hong Kong (“VTech”), and Leapfrog Enterprises, Inc of 6401 Hollis Street, Emeryville, CA94608 (the “Leapfrog”). The parties wish to explore a business opportunity of mutual interest (the “Opportunity”) and in connection with this opportunity, Leapfrog (“Disclosing Party”) may disclose to the VTech (“Receiving Party™) certain confidential technical and business information (the “Confidential Information”) which the Disclosing Party desires the Receiving Party to treat as confidential. The parties also desire that this Nondisclosure Agreement shall supersede and replace the existing Nondisclosure Agreement between the parties dated 1 December 2015. VTech and Leapfrog hereby agree as follows: 1. The term “Confidential Information” shall include, without limitation and regardless of the form of communication, all notes,\nmemoranda, reports, financial results, projections, forecasts, product names, product types, third party contracts, employee information\nand other materials relating to the Opportunity that are marked “CONFIDENTIAL”, regardless of whether such information was\ndisseminated to the Receiving Party prior to or following the signing of this Agreement. However, “Confidential Information” shall not\ninclude any information which the Receiving Party can prove:\n@) has become generally available to the public through no fault or action of the Receiving Party or any affiliates, agents,\nadvisors, directors, officers or employees of the Receiving Party, its parent, subsidiaries and related companies (collectively\nthe “Related Group™);\n(b) was in the possession of the Related Group prior to the date of this Agreement, provided that such information is not known\nby the Receiving Party to be subject to another confidentiality agreement with or other obligation of secrecy to the Disclosing\nParty;\n(0 is or becomes available to the Related Group on a non-confidential basis from any third party (whether such information was\ndisseminated to the Related Group prior to or after the Effective Date of this Agreement), the disclosure of which to the\nRelated Group does not violate any contractual, legal or fiduciary obligation such third party has to the Disclosing Party;\n(d) is independently ascertained by the Related Group or is developed by or for the Related Group by their employees or any\nthird party which have not had access either directly or indirectly to the Confidential Information.\nIt is understood and agreed that all Confidential Information is the property of the Disclosing Party and shall remain the property of the\nDisclosing Party, and it and all copies of it (other than routinely created archival copies during transmission of the\n \nConfidential Information by electronic means) shall be returned to Disclosing Party on request by Disclosing Party.\nThe Confidential Information will be kept confidential by the Related Group by using the same degree of care as for its own information\nof like importance, but at least use reasonable care, in safeguarding against disclosure of Confidential Information for a period of one\n(1) year from the date of receipt by the Receiving Party, provided that (a) if Confidential Information is subject to a third party\nconfidentiality obligation on the part of Disclosing Party that extends beyond the one (1) year from the date of receipt by the Receiving\nParty, then the Related Group shall abide by the obligations set forth in this Agreement with respect to such Confidential Information\nfor the term of Disclosing Party’s confidentiality obligation applicable to such Confidential Information, (b) with respect to Confidential\nInformation consisting of Reading product or New Platform Product and their marketing plans, the Related Group shall abide by the\nobligations set forth in this Agreement for a period of two (2) years from the date of receipt by the Receiving Party of such Confidential\nInformation, and (c) with respect to Confidential Information consisting of personally identifiable consumer or employee information,\nsource code or Privileged Materials, the Related Group shall abide by the obligations set forth in this Agreement in perpetuity.\nWithout limiting the foregoing, without the prior written consent of the Disclosing Party, the Related Group shall not:\n®» distribute or disclose any of the Confidential Information in any manner;\n(ii)  permit any third party access to the Confidential Information other than the Related Group; or\n(iii)  use the Confidential Information for any purpose other than for assessment of the Opportunity.\nHowever, the Receiving Party may transmit the Confidential Information to their attorneys, accountants, agents, directors and officers\nwho need to know the Confidential Information for the purpose of business with the Disclosing Party and who are informed of the\nconfidential nature of the information and who are bound by confidentiality terms at least as restrictive as the terms of this Agreement.\nThe Receiving Party shall be responsible for any breach of this Agreement by any of such persons.\nTo the extent that any Confidential Information may include materials subject to the attorney-client privilege, work product doctrine or\nany other applicable privilege concerning pending or threatened legal proceedings or governmental investigations (“Privileged\nMaterial”), the parties understand and agree that they have a commonality of interest with respect to such matters and it is their mutual\ndesire, intention and understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the\nconfidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. All Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other\napplicable privilege or doctrine shall remain entitled to\n \nsuch protection under these privileges or doctrines, under this Agreement and under the joint defense doctrine.\nFor a period of one (1) year from the date hereof, the Related Group shall not, directly or indirectly, solicit to employ or entice away or\noffer to enter into any agreement with any person who (i) is, or within the prior six (6) months was, an officer of Disclosing Party or any\nof its affiliates or subsidiaries, or (ii) is, or within the prior six (6) months was, employed in any capacity by Disclosing Party or any of\nits affiliates or subsidiaries and with whom Receiving Party or any affiliates or Representatives of Receiving Party came in contact or\nfirst identified during the process of considering the Potential Transaction; provided, that this section shall not prevent Receiving Party\nor its affiliates from hiring a person identified in clause (i) or (ii) (a “Covered Person”) if such Covered Person: (1) contacts Receiving\nParty or its affiliates or Representatives on the Covered Person’s own initiative without any direct or indirect solicitation by or\nencouragement from Receiving Party or its affiliates or Representatives; or (2) responds to a general solicitation of employment not\nspecifically directed toward Disclosing Party or any of its subsidiaries or particular employees of Disclosing Party or any of its\nsubsidiaries.\nIn the event that the Related Group receives a request to disclose all or any part of the Confidential Information under the terms of a\nvalid and effective subpoena or order issued by a court of competent jurisdiction or by a governmental body, the Receiving Party agrees\nto timely notify the Disclosing Party such a request so that the Disclosing Party may seek an appropriate protective order and/or waive\ncompliance by the Related Group with the appropriate provisions of this Agreement. If, in the absence of a protective order, the Related\nGroup determines, upon the advice of counsel, that it is required to disclose such information, it will disclose only that portion thereof\nwhich it is compelled to disclose.\nExcept as required by applicable law, regulation or stock exchange rule, without the prior written consent of the Disclosing Party, the\nReceiving Party will not disclose to any third party the fact that the Confidential Information has been made available to the Receiving\nParty or that the Disclosing Party and the Receiving Party are discussing the Opportunity.\nThe Disclosing Party shall not be deemed to make any representation or warranty as to the accuracy or completeness of the Confidential\nInformation. The Receiving Party does not receive any right or license, express or implied, under any patents, copyrights, trade secrets,\nor other intellectual property rights of the Disclosing Party under this Agreement.\nThe Related Group, when requested by the Disclosing Party, shall promptly and at the Disclosing Party’s option either return or destroy\nall written Confidential Information, including all copies, then in the Related Group’s possession; provided, however, that the Receiving\nParty may retain one copy in the confidential, restricted access files of its law or patent department or outside patent counsel for use\nonly in the event a dispute arises between the parties under this Agreement and only in connection with that dispute.\nIt is understood that this Agreement does not obligate the parties or any of their respective parent, subsidiary, or related companies to\nenter into or continue any further agreement or\n \n10. business relationship. Subject to the provisions of this Agreement, nothing in this Agreement nor discussions and/or communications\nbetween the parties will serve to impair the right of either party to independently develop, make, use, procure, and/or market products or\nservices now or in the future that may be competitive with those offered by the other, nor require either party to disclose any planning or\nother information to the other.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the\nconflicts of law principles thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of any State or\nFederal court sitting in Delaware over any suit, action or proceeding arising out of or relating to this Agreement. Each party hereby\nagrees that service of any process, summons, notice or document by U.S. registered mail addressed to such party shall be effective\nservice of process for any action, suit or proceeding brought against such party in any such court. Each party agrees that a final\njudgment in any suit, action or proceeding brought in such court under this clause 9 shall be conclusive and binding upon such party and\nmay be enforced in any other courts to whose jurisdiction such party is or may be subject, by suit upon judgment.\nEach of the parties hereto recognizes and acknowledges the competitive value and confidential nature of the Confidential Information\nand that irreparable damage may result to either party if information contained therein or derived therefrom is disclosed to any person\nexcept as herein allowed or is used for any purpose other than the evaluation and negotiation of the Opportunity. Each of the parties\nhereto further understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by either\nparty, and that the non-breaching party shall be entitled to seek equitable relief, including injunctive relief and specific performance, as a\nremedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement by any of\nthe parties hereto, but shall be in addition to all of the non-breaching party’s other remedies available at law or in equity.\n \n11. The Disclosing Party’s waiver of any breach or failure to enforce any of the provisions of this Agreement at any time shall not in any\nway affect, limit or waive the Disclosing Party’s right thereafter to enforce and compel strict compliance with every provision hereof.\n12. No modification of this Agreement shall be effective unless in writing and signed by both parties.\n13. 13. This Agreement is effective on the date of this Agreement (“Effective Date”) and will remain in force for two (2) years unless\nterminated by either party by giving 30 days written notice. The Receiving Party’s obligations regarding Confidential Information as\nstated in paragraphs 3, 4 and 7 will survive after the expiration or termination of this Agreement.\n14. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the\nremaining provisions will not be affected.\n15. This Agreement is not assignable to a third party without the prior written consent of the other party.\n16. This Agreement constitutes the complete agreement between the parties concerning the subject matter hereof and supersedes and\ncancels any and all prior communications and agreements between the parties with respect thereto. In particular, this Agreement\nsupersedes and replaces the existing Nondisclosure Agreement between the parties dated 1 December 2015 such that any information\ndisclosed by a party on or after 11 November 2015 shall be subject to the terms and conditions of this Agreement.\nThe undersigned parties intending to be legally bound by this Agreement have executed this Agreement as of 16 December 2015. For and on behalf of VTech Holdings Limited For and on behalf of Leapfrog Enterprises, Inc.\n/s/ Pang King Fai /s/ Robert Lattuppa\nName: PANG KING FAI Name: ROBERT LATTUPA\nTitle: EXECUTIVE DIRECTOR Title: ~ General Counsel\n	EX-99.(D)(4) 10 a2227537zex-99_d4.htm EX-99.(D)(4)\nExhibit (d)(4)\nNON-DISCLOSURE AGREEMENT\nThis Agreement is made and entered into as of 16 December 2015 between VTech Holdings Limited of 23/F, Tai Ping Industrial Centre, Block\n1, 57 Ting Kok Road, Tai Po, Hong Kong ("VTech"), and Leapfrog Enterprises, Inc of 6401 Hollis Street, Emeryville, CA94608 (the\n"Leapfrog").\nThe parties wish to explore a business opportunity of mutual interest (the "Opportunity") and in connection with this opportunity, Leapfrog\n("Disclosing Party") may disclose to the VTech ("Receiving Party") certain confidential technical and business information (the "Confidential\nInformation") which the Disclosing Party desires the Receiving Party to treat as confidential. The parties also desire that this Nondisclosure\nAgreement shall supersede and replace the existing Nondisclosure Agreement between the parties dated 1 December 2015.\nVTech and Leapfrog hereby agree as follows:\n1.\nThe term "Confidential Information" shall include, without limitation and regardless of the form of communication, all notes,\nmemoranda, reports, financial results, projections, forecasts, product names, product types, third party contracts, employee information\nand other materials relating to the Opportunity that are marked "CONFIDENTIAL", regardless of whether such information was\ndisseminated to the Receiving Party prior to or following the signing of this Agreement. However, "Confidential Information" shall not\ninclude any information which the Receiving Party can prove:\n(a)\nhas become generally available to the public through no fault or action of the Receiving Party or any affiliates, agents,\nadvisors, directors, officers or employees of the Receiving Party, its parent, subsidiaries and related companies (collectively\nthe "Related Group");\n(b)\nwas in the possession of the Related Group prior to the date of this Agreement, provided that such information is not known\nby the Receiving Party to be subject to another confidentiality agreement with or other obligation of secrecy to the Disclosing\nParty;\n(c)\nis or becomes available to the Related Group on a non-confidential basis from any third party (whether such information was\ndisseminated to the Related Group prior to or after the Effective Date of this Agreement), the disclosure of which to the\nRelated Group does not violate any contractual, legal or fiduciary obligation such third party has to the Disclosing Party;\n(d)\nis independently ascertained by the Related Group or is developed by or for the Related Group by their employees or any\nthird party which have not had access either directly or indirectly to the Confidential Information.\n2.\nIt is understood and agreed that all Confidential Information is the property of the Disclosing Party and shall remain the property of the\nDisclosing Party, and it and all copies of it (other than routinely created archival copies during transmission of the\nConfidential Information by electronic means) shall be returned to Disclosing Party on request by Disclosing Party.\n3.\nThe\nConfidential Information will be kept confidential by the Related Group by using the same degree of care as for its own information\nof like importance, but at least use reasonable care, in safeguarding against disclosure of Confidential Information for a period of one\n(1) year from the date of receipt by the Receiving Party, provided that (a) if Confidential Information is subject to a third party\nconfidentiality obligation on the part of Disclosing Party that extends beyond the one (1) year from the date of receipt by the Receiving\nParty, then the Related Group shall abide by the obligations set forth in this Agreement with respect to such Confidential Information\nfor the term of Disclosing Party's confidentiality obligation applicable to such Confidential Information, (b) with respect to Confidential\nInformation consisting of Reading product or New Platform Product and their marketing plans, the Related Group shall abide by the\nobligations set forth in this Agreement for a period of two (2) years from the date of receipt by the Receiving Party of such Confidential\nInformation, and (c) with respect to Confidential Information consisting of personally identifiable consumer or employee information,\nsource code or Privileged Materials, the Related Group shall abide by the obligations set forth in this Agreement in perpetuity.\nWithout limiting the foregoing, without the prior written consent of the Disclosing Party, the Related Group shall not:\n(i)\ndistribute or disclose any of the Confidential Information in any manner;\n(ii)\npermit any third party access to the Confidential Information other than the Related Group; or\n(iii)\nuse the Confidential Information for any purpose other than for assessment of the Opportunity.\nHowever, the Receiving Party may transmit the Confidential Information to their attorneys, accountants, agents, directors and officers\nwho\nneed to know the Confidential Information for the purpose of business with the Disclosing Party and who are informed of the\nconfidential nature of the information and who are bound by confidentiality terms at least as restrictive as the terms of this Agreement.\nThe Receiving Party shall be responsible for any breach of this Agreement by any of such persons.\nTo the extent that any Confidential Information may include materials subject to the attorney-client privilege, work product doctrine or\nany other applicable privilege concerning pending or threatened legal proceedings or governmental investigations ("Privileged\nMaterial"), the parties understand and agree that they have a commonality of interest with respect to such matters and it is their mutual\ndesire, intention and understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the\nconfidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege All Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other\napplicable privilege or doctrine shall remain entitled to\nsuch protection under these privileges or doctrines, under this Agreement and under the joint defense doctrine.\nFor a period of one (1) year from the date hereof, the Related Group shall not, directly or indirectly, solicit to employ or entice away or\noffer to enter into any agreement with any person who (i) is, or within the prior six (6) months was, an officer of Disclosing Party or any\nof its affiliates or subsidiaries, or (ii) is, or within the prior six (6) months was, employed in any capacity by Disclosing Party or any of\nits affiliates or subsidiaries and with whom Receiving Party or any affiliates or Representatives of Receiving Party came in contact or\nfirst identified during the process of considering the Potential Transaction; provided, that this section shall not prevent Receiving Party\nor its affiliates from hiring a person identified in clause (i) or (ii) (a "Covered Person") if such Covered Person: (1) contacts Receiving\nParty or its affiliates or Representatives on the Covered Person's own initiative without any direct or indirect solicitation by or\nencouragement from Receiving Party or its affiliates or Representatives; or (2) responds to a general solicitation of employment not\nspecifically directed toward Disclosing Party or any of its subsidiaries or particular employees of Disclosing Party or any of its\nsubsidiaries.\n4.\nIn the event that the Related Group receives a request to disclose all or any part of the Confidential Information under the terms of a\nvalid and effective subpoena or order issued by a court of competent jurisdiction or by a governmental body, the Receiving Party agrees\nto timely notify the Disclosing Party such a request so that the Disclosing Party may seek an appropriate protective order and/or waive\ncompliance by the Related Group with the appropriate provisions of this Agreement. If, in the absence of a protective order, the Related\nGroup\ndetermines,\nupon\nthe\nadvice\nof\ncounsel,\nthat\nit\nis\nrequired\nto\ndisclose\nsuch\ninformation,\nit\nwill\ndisclose\nonly\nthat\nportion\nthereof\nwhich it is compelled to disclose.\n5.\nExcept as required by applicable law, regulation or stock exchange rule, without the prior written consent of the Disclosing Party, the\nReceiving Party will not disclose to any third party the fact that the Confidential Information has been made available to the Receiving\nParty or that the Disclosing Party and the Receiving Party are discussing the Opportunity.\n6.\nThe Disclosing Party shall not be deemed to make any representation or warranty as to the accuracy or completeness of the Confidential\nInformation. The Receiving Party does not receive any right or license, express or implied, under any patents, copyrights, trade secrets,\nor other intellectual property rights of the Disclosing Party under this Agreement.\n7.\nThe Related Group, when requested by the Disclosing Party, shall promptly and at the Disclosing Party's option either return or destroy\nall written Confidential Information, including all copies, then in the Related Group's possession; provided, however, that the Receiving\nParty may retain one copy in the confidential, restricted access files of its law or patent department or outside patent counsel for use\nonly in the event a dispute arises between the parties under this Agreement and only in connection with that dispute.\n8.\nIt is understood that this Agreement does not obligate the parties or any of their respective parent, subsidiary, or related companies to\nenter into or continue any further agreement or\nbusiness relationship. Subject to the provisions of this Agreement, nothing in this Agreement nor discussions and/or communications\nbetween the parties will serve to impair the right of either party to independently develop, make, use, procure, and/or market products or\nservices now or in the future that may be competitive with those offered by the other, nor require either party to disclose any planning or\nother information to the other.\n9.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the\nconflicts of law principles thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of any State or\nFederal court sitting in Delaware over any suit, action or proceeding arising out of or relating to this Agreement. Each party hereby\nagrees that service of any process, summons, notice or document by U.S. registered mail addressed to such party shall be effective\nservice of process for any action, suit or proceeding brought against such party in any such court. Each party agrees that a final\njudgment in any suit, action or proceeding brought in such court under this clause 9 shall be conclusive and binding upon such party and\nmay be enforced in any other courts to whose jurisdiction such party is or may be subject, by suit upon judgment.\n10.\nEach of the parties hereto recognizes and acknowledges the competitive value and confidential nature of the Confidential Information\nand that irreparable damage may result to either party if information contained therein or derived therefrom is disclosed to any person\nexcept as herein allowed or is used for any purpose other than the evaluation and negotiation of the Opportunity. Each of the parties\nhereto further understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by either\nparty, and that the non-breaching party shall be entitled to seek equitable relief, including injunctive relief and specific performance, as a\nremedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement by any of\nthe\nparties hereto, but shall be in addition to all of the non-breaching party's other remedies available at law or in equity.\n11.\nThe Disclosing Party's waiver of any breach or failure to enforce any of the provisions of this Agreement at any time shall not in any\nway affect, limit or waive the Disclosing Party's right thereafter to enforce and compel strict compliance with every provision hereof.\n12.\nNo modification of this Agreement shall be effective unless in writing and signed by both parties.\n13.\n13.\nThis Agreement is effective on the date of this Agreement ("Effective Date") and will remain in force for two (2) years unless\nterminated by either party by giving 30 days written notice. The Receiving Party's obligations regarding Confidential Information as\nstated in paragraphs 3, 4 and 7 will survive after the expiration or termination of this Agreement.\n14.\nIf any provision of this Agreement is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the\nremaining provisions will not be affected.\n15.\nThis Agreement is not assignable to a third party without the prior written consent of the other party.\n16.\nThis Agreement constitutes the complete agreement between the parties concerning the subject matter hereof and supersedes and\ncancels any and all prior communications and agreements between the parties with respect thereto. In particular, this Agreement\nsupersedes and replaces the existing Nondisclosure Agreement between the parties dated 1 December 2015 such that any information\ndisclosed by a party on or after 11 November 2015 shall be subject to the terms and conditions of this Agreement.\nThe undersigned parties intending to be legally bound by this Agreement have executed this Agreement as of 16 December 2015.\nFor and on behalf of VTech Holdings Limited\nFor and on behalf of Leapfrog Enterprises, Inc.\n/s/ Pang King Fai\n/s/ Robert Lattuppa\nName: PANG KING FAI\nName: ROBERT LATTUPA\nTitle: EXECUTIVE DIRECTOR\nTitle: General Counsel	EX-99.(D)(4) 10 a2227537zex-99_d4.htm EX-99.(D)(4)\nExhibit (d)(4)\nNON-DISCLOSURE AGREEMENT\nThis Agreement is made and entered into as of 16 December 2015 between VTech Holdings Limited of 23/F, Tai Ping Industrial Centre, Block\n1, 57 Ting Kok Road, Tai Po, Hong Kong (“VTech”), and Leapfrog Enterprises, Inc of 6401 Hollis Street, Emeryville, CA94608 (the\n“Leapfrog”).\nThe parties wish to explore a business opportunity of mutual interest (the “Opportunity”) and in connection with this opportunity, Leapfrog\n(“Disclosing Party”) may disclose to the VTech (“Receiving Party”) certain confidential technical and business information (the “Confidential\nInformation”) which the Disclosing Party desires the Receiving Party to treat as confidential. The parties also desire that this Nondisclosure\nAgreement shall supersede and replace the existing Nondisclosure Agreement between the parties dated 1 December 2015.\nVTech and Leapfrog hereby agree as follows:\n1.\nThe term “Confidential Information” shall include, without limitation and regardless of the form of communication, all notes,\nmemoranda, reports, financial results, projections, forecasts, product names, product types, third party contracts, employee information\nand other materials relating to the Opportunity that are marked “CONFIDENTIAL”, regardless of whether such information was\ndisseminated to the Receiving Party prior to or following the signing of this Agreement. However, “Confidential Information” shall not\ninclude any information which the Receiving Party can prove:\n(a)\nhas become generally available to the public through no fault or action of the Receiving Party or any affiliates, agents,\nadvisors, directors, officers or employees of the Receiving Party, its parent, subsidiaries and related companies (collectively\nthe “Related Group”);\n(b)\nwas in the possession of the Related Group prior to the date of this Agreement, provided that such information is not known\nby the Receiving Party to be subject to another confidentiality agreement with or other obligation of secrecy to the Disclosing\nParty;\n(c)\nis or becomes available to the Related Group on a non-confidential basis from any third party (whether such information was\ndisseminated to the Related Group prior to or after the Effective Date of this Agreement), the disclosure of which to the\nRelated Group does not violate any contractual, legal or fiduciary obligation such third party has to the Disclosing Party;\n(d)\nis independently ascertained by the Related Group or is developed by or for the Related Group by their employees or any\nthird party which have not had access either directly or indirectly to the Confidential Information.\n2.\nIt is understood and agreed that all Confidential Information is the property of the Disclosing Party and shall remain the property of the\nDisclosing Party, and it and all copies of it (other than routinely created archival copies during transmission of the\nConfidential Information by electronic means) shall be returned to Disclosing Party on request by Disclosing Party.\n3.\nThe Confidential Information will be kept confidential by the Related Group by using the same degree of care as for its own information\nof like importance, but at least use reasonable care, in safeguarding against disclosure of Confidential Information for a period of one\n(1) year from the date of receipt by the Receiving Party, provided that (a) if Confidential Information is subject to a third party\nconfidentiality obligation on the part of Disclosing Party that extends beyond the one (1) year from the date of receipt by the Receiving\nParty, then the Related Group shall abide by the obligations set forth in this Agreement with respect to such Confidential Information\nfor the term of Disclosing Party’s confidentiality obligation applicable to such Confidential Information, (b) with respect to Confidential\nInformation consisting of Reading product or New Platform Product and their marketing plans, the Related Group shall abide by the\nobligations set forth in this Agreement for a period of two (2) years from the date of receipt by the Receiving Party of such Confidential\nInformation, and (c) with respect to Confidential Information consisting of personally identifiable consumer or employee information,\nsource code or Privileged Materials, the Related Group shall abide by the obligations set forth in this Agreement in perpetuity.\nWithout limiting the foregoing, without the prior written consent of the Disclosing Party, the Related Group shall not:\n(i) distribute or disclose any of the Confidential Information in any manner;\n(ii) permit any third party access to the Confidential Information other than the Related Group; or\n(iii) use the Confidential Information for any purpose other than for assessment of the Opportunity.\nHowever, the Receiving Party may transmit the Confidential Information to their attorneys, accountants, agents, directors and officers\nwho need to know the Confidential Information for the purpose of business with the Disclosing Party and who are informed of the\nconfidential nature of the information and who are bound by confidentiality terms at least as restrictive as the terms of this Agreement.\nThe Receiving Party shall be responsible for any breach of this Agreement by any of such persons.\nTo the extent that any Confidential Information may include materials subject to the attorney-client privilege, work product doctrine or\nany other applicable privilege concerning pending or threatened legal proceedings or governmental investigations (“Privileged\nMaterial”), the parties understand and agree that they have a commonality of interest with respect to such matters and it is their mutual\ndesire, intention and understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the\nconfidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. All Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other\napplicable privilege or doctrine shall remain entitled to\nsuch protection under these privileges or doctrines, under this Agreement and under the joint defense doctrine.\nFor a period of one (1) year from the date hereof, the Related Group shall not, directly or indirectly, solicit to employ or entice away or\noffer to enter into any agreement with any person who (i) is, or within the prior six (6) months was, an officer of Disclosing Party or any\nof its affiliates or subsidiaries, or (ii) is, or within the prior six (6) months was, employed in any capacity by Disclosing Party or any of\nits affiliates or subsidiaries and with whom Receiving Party or any affiliates or Representatives of Receiving Party came in contact or\nfirst identified during the process of considering the Potential Transaction; provided, that this section shall not prevent Receiving Party\nor its affiliates from hiring a person identified in clause (i) or (ii) (a “Covered Person”) if such Covered Person: (1) contacts Receiving\nParty or its affiliates or Representatives on the Covered Person’s own initiative without any direct or indirect solicitation by or\nencouragement from Receiving Party or its affiliates or Representatives; or (2) responds to a general solicitation of employment not\nspecifically directed toward Disclosing Party or any of its subsidiaries or particular employees of Disclosing Party or any of its\nsubsidiaries.\n4.\nIn the event that the Related Group receives a request to disclose all or any part of the Confidential Information under the terms of a\nvalid and effective subpoena or order issued by a court of competent jurisdiction or by a governmental body, the Receiving Party agrees\nto timely notify the Disclosing Party such a request so that the Disclosing Party may seek an appropriate protective order and/or waive\ncompliance by the Related Group with the appropriate provisions of this Agreement. If, in the absence of a protective order, the Related\nGroup determines, upon the advice of counsel, that it is required to disclose such information, it will disclose only that portion thereof\nwhich it is compelled to disclose.\n5.\nExcept as required by applicable law, regulation or stock exchange rule, without the prior written consent of the Disclosing Party, the\nReceiving Party will not disclose to any third party the fact that the Confidential Information has been made available to the Receiving\nParty or that the Disclosing Party and the Receiving Party are discussing the Opportunity.\n6.\nThe Disclosing Party shall not be deemed to make any representation or warranty as to the accuracy or completeness of the Confidential\nInformation. The Receiving Party does not receive any right or license, express or implied, under any patents, copyrights, trade secrets,\nor other intellectual property rights of the Disclosing Party under this Agreement.\n7.\nThe Related Group, when requested by the Disclosing Party, shall promptly and at the Disclosing Party’s option either return or destroy\nall written Confidential Information, including all copies, then in the Related Group’s possession; provided, however, that the Receiving\nParty may retain one copy in the confidential, restricted access files of its law or patent department or outside patent counsel for use\nonly in the event a dispute arises between the parties under this Agreement and only in connection with that dispute.\n8.\nIt is understood that this Agreement does not obligate the parties or any of their respective parent, subsidiary, or related companies to\nenter into or continue any further agreement or\nbusiness relationship. Subject to the provisions of this Agreement, nothing in this Agreement nor discussions and/or communications\nbetween the parties will serve to impair the right of either party to independently develop, make, use, procure, and/or market products or\nservices now or in the future that may be competitive with those offered by the other, nor require either party to disclose any planning or\nother information to the other.\n9.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the\nconflicts of law principles thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of any State or\nFederal court sitting in Delaware over any suit, action or proceeding arising out of or relating to this Agreement. Each party hereby\nagrees that service of any process, summons, notice or document by U.S . registered mail addressed to such party shall be effective\nservice of process for any action, suit or proceeding brought against such party in any such court. Each party agrees that a final\njudgment in any suit, action or proceeding brought in such court under this clause 9 shall be conclusive and binding upon such party and\nmay be enforced in any other courts to whose jurisdiction such party is or may be subject, by suit upon judgment.\n10.\nEach of the parties hereto recognizes and acknowledges the competitive value and confidential nature of the Confidential Information\nand that irreparable damage may result to either party if information contained therein or derived therefrom is disclosed to any person\nexcept as herein allowed or is used for any purpose other than the evaluation and negotiation of the Opportunity. Each of the parties\nhereto further understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by either\nparty, and that the non-breaching party shall be entitled to seek equitable relief, including injunctive relief and specific performance, as a\nremedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement by any of\nthe parties hereto, but shall be in addition to all of the non-breaching party’s other remedies available at law or in equity.\n11.\nThe Disclosing Party’s waiver of any breach or failure to enforce any of the provisions of this Agreement at any time shall not in any\nway affect, limit or waive the Disclosing Party’s right thereafter to enforce and compel strict compliance with every provision hereof.\n12.\nNo modification of this Agreement shall be effective unless in writing and signed by both parties.\n13.\n13.\nThis Agreement is effective on the date of this Agreement (“Effective Date”) and will remain in force for two (2) years unless\nterminated by either party by giving 30 days written notice. The Receiving Party’s obligations regarding Confidential Information as\nstated in paragraphs 3, 4 and 7 will survive after the expiration or termination of this Agreement.\n14.\nIf any provision of this Agreement is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the\nremaining provisions will not be affected.\n15.\nThis Agreement is not assignable to a third party without the prior written consent of the other party.\n16.\nThis Agreement constitutes the complete agreement between the parties concerning the subject matter hereof and supersedes and\ncancels any and all prior communications and agreements between the parties with respect thereto. In particular, this Agreement\nsupersedes and replaces the existing Nondisclosure Agreement between the parties dated 1 December 2015 such that any information\ndisclosed by a party on or after 11 November 2015 shall be subject to the terms and conditions of this Agreement.\nThe undersigned parties intending to be legally bound by this Agreement have executed this Agreement as of 16 December 2015.\nFor and on behalf of VTech Holdings Limited\nFor and on behalf of Leapfrog Enterprises, Inc.\n/s/ Pang King Fai\n/s/ Robert Lattuppa\nName: PANG KING FAI\nName: ROBERT LATTUPA\nTitle: EXECUTIVE DIRECTOR\nTitle:\nGeneral Counsel
ea4700a99c92f0459c752c2177ebee56.pdf	effective_date jurisdiction party	Exhibit 10.46\nCONFIDENTIAL DRAFT\nU.S. EMPLOYEE AGREEMENT\nThis Agreement (the “Agreement”) is made between Red Hat, Inc., a Delaware corporation (collectively with each of its subsidiaries, the “Company”), and Eric R. Shander (“Employee”), a “U .S. employee” (as shown on the\nCompany’s payroll records on the Effective Date (as defined below)) who has been selected by the Company’s Chief People Officer for participation in the Red Hat, Inc. Designated U.S. Manager Severance Plan (the “Severance Plan”)\nas of November 24, 2015 (the “Effective Date”).\nIn consideration of the Company’s employment of Employee as the Company’s Vice President, Finance, the compensation and benefits package provided to Employee by the Company, and entitlement to benefits under the Severance\nPlan, and in satisfaction of a condition of Employee’s participation in such Severance Plan, Employee agrees that upon the Effective Date he shall be bound by all of the restrictions set forth herein.\nIn consideration of the foregoing and intending to be legally bound, the parties agree as follows:\n1.\nAcknowledgment.\nEmployee acknowledges that Employee’s undertakings and commitments and the restrictions set forth in this Agreement, including in particular the non-compete and non-solicitation undertaking contained herein, are a material\ninducement for the Company to employ Employee, to provide him with the above-referenced pay, and a requirement for Employee to become eligible as a participant in the Severance Plan. Employee acknowledges that he has received a\ncopy of the Severance Plan and has had the opportunity to discuss its terms with the Company. Without regard to whether Employee ultimately receives benefits under the Severance Plan, Employee undertakes to fully comply with the\nprovisions hereof and agrees that a breach of these provisions will cause significant financial and other damages to the Company, including loss of strategic advantages, much of which is difficult to quantify by reference solely to money\ndamages.\n2.\nNon-Solicitation.\n(a) During Employee’s employment with the Company and for a period of twelve (12) months thereafter, Employee shall not, for himself or any entity, nor shall Employee assist or provide information to a third party that would assist\nthat third party to: (i) solicit or cause to solicit for the purposes of diverting, taking away or disrupting, or of attempting to divert, take away or disrupt, the Company’s relationship or business with any person or entity who, at any time\nduring the six (6) months preceding such action was or is a client, customer or business partner of the Company, or prospective client, customer or business partner of the Company; (ii) solicit, induce or attempt to induce, any employee or\nindependent contractor of the Company to terminate his employment or engagement with the Company; or (iii) hire, recruit or engage as an employee or independent contractor, or attempt to hire, recruit or engage as an employee or\nindependent contractor, any person who was employed or otherwise engaged by the Company within six (6) months prior to such action. For purposes of this provision, a “prospective client, customer or business partner” shall mean any\nperson or entity (x) with whom the Company has had discussions as of Employee’s termination of employment with the Company, (y) to whom the Company or made a proposal to do business about which the Employee was aware during\nhis employment, or (z) that has executed a non-disclosure agreement with the Company, provided Employee was aware of such fact during this employment with the Company.\n(b) If Employee violates any of the provisions of this Section 2, Employee shall continue to be bound by the restrictions set forth in this Section 2 for an additional period equal to the aggregate period of such violation.\n3.\nNon-Competition.\n(a) Definitions. For purposes of this Agreement, the following terms shall have the following meanings:\n(1) “Restricted Business” is defined as a software or software-related business that competes with the Company. “ Restricted Business” includes, but is not limited to, the following companies: Amazon.com, Inc., CA, Inc. (Computer\nAssociates), Canonical Ltd., Citrix Systems, Inc., EMC Corporation, Google, Inc., Hewlett Packard (HP) Corporation, International Business Machines (IBM) Corporation, Microsoft Corporation, Mirantis, Inc., Oracle Corporation,\nPivotal Software, Inc., salesforce.com, Inc. and VMware, Inc.\n(2) “Restricted Territory” is defined as: Anywhere within the United States where the Company has clients and/or has marketed its products or services at the time Employee leaves employment with the Company.\n(b) Non-compete Period.\n(1) During Employee’s employment with the Company and for a period of twelve (12) months thereafter, within the Restricted Territory, Employee shall not, whether as an owner, director, employee, independent contractor or otherwise,\nprovide to a Restricted Business any services similar to or related to the services Employee performed for or with the Company if they are related to any product or service line that competes with any Company product or service line\nexisting or planned as of Employee’s termination from employment with the Company: (i) about which Employee had access to operational, financial, or strategic information that is confidential (as defined below) while employed with\nthe Company; or (ii) for which Employee was responsible and/or with which Employee was involved; or (iii) about which Employee was privy to confidential, non-public, and/or proprietary information during Employee’s employment\nwith the Company.\n(2) At the request of Employee, following a confidential consultation, the Company will provide its good faith view as to whether a proposed relationship Employee may wish to pursue appears likely to violate this Section. No view by\nthe Company that a violation is unlikely shall prevent the Company from pursuing Employee under this provision if the relationship described by Employee changes, the product or service line at the Restricted Business becomes subject\nto this Section, or the information provided by Employee to the Company was incomplete or incorrect.\n(c) Employee will be treated as an owner of a Restricted Business if he owns an equity interest in the business (except for passive ownership, directly or indirectly, of not more than 1% of the outstanding stock of a publicly-held company\nand of not more than 5% of the outstanding stock of a private company).\n(d) If Employee violates any of the provisions of this Section 3, Employee shall continue to be bound by the restrictions set forth in this Section 3 for an additional period equal to the aggregate period of such violation.\n4.\nConfidential Information.\n(a) Confidential Information. Employee agrees at all times, both during and after the term of his employment with the Company, to hold in the strictest confidence, and not to use (except for the benefit of the Company at the Company’s\ndirection) or disclose (without the written authorization of the General Counsel or other authorized Company officer), regardless of when disclosed to Employee, any and all technical data, trade secrets, know-how or other confidential or\nproprietary information of the Company, including without limitation any and all information related to the products, product plans, technologies, inventions, mask works, ideas,\n2\nprocesses, formulas, source and object codes, computer programs, data bases, other works of authorship, improvements, discoveries, developments, designs and techniques, research, developmental or experimental work, customer and\nbusiness partner lists, employee lists, structure, business plans, sales or marketing plans or results, markets, prices and costs, financial information, or other subject matter pertaining to any business of the Company or any of its licensors,\ncustomers, business partners, consultants or customers (collectively, “Confidential Information”). Employee understands that Confidential Information further includes, but is not limited to, information pertaining to any aspect of the\nCompany’s business which is either information not known (or known as a result of a wrongful act of Employee or of others who were under confidentiality obligations as to the item or items involved) by actual or potential competitors of\nthe Company or other third parties not under confidentiality obligations to the Company, or is otherwise proprietary information of the Company or its customers or suppliers, whether of a technical nature or otherwise. Employee further\nunderstands that Confidential Information does not include any of the foregoing items which is or has become publicly and widely known and made generally available through no wrongful act of Employee or of others who were under\nconfidentiality obligations as to the item or items involved. Furthermore, the following shall not be a violation of this Agreement: (i) disclosure or use of Confidential Information that in good faith is determined to be required or\nappropriate to advance the best interests of the Company in connection with Employee’s work as an employee of the Company and is not inconsistent with any lawful request or direction that Employee may receive from the Company’s\nBoard of Directors (the “Board”) or a committee or other representative of the Board or any authorized Company officer, (ii) disclosure of Confidential Information when required by a court of law, by any governmental agency having\nsupervisory authority over the business of the Company or by any administrative or legislative body (including a committee thereof) with apparent jurisdiction to order Employee to divulge, disclose or make accessible such information;\nprovided, however, that to the extent permitted by law, prior to any such disclosure Employee must notify the Company’s General Counsel of such requirement sufficiently in advance to allow the Company a reasonable opportunity to\ntake any action that it determines appropriate to protect such Confidential Information and Employee agrees to cooperate with the Company in good faith in taking any such action, or (iii) disclosure of Confidential Information to\nEmployee’s spouse, attorney and/or personal tax and financial advisors as reasonably necessary or appropriate to advance Employee’s tax, financial and other personal planning (each an “Exempt Person”); provided, however, that prior\nto any disclosure of Confidential Information to an Exempt Person Employee will inform such Exempt Person of Employee’s obligations hereunder and of their obligation to protect such Confidential Information to the same extent and\nEmployee understands that any disclosure or use of any Confidential Information by an Exempt Person shall be deemed to be a breach of this Section 4 by Employee.\n(b) Former Employer Information. Employee agrees that he does not possess, has not brought, and will not bring to the Company, nor use or disclose in the course of the performance of his duties at the Company, any inventions, technical\ndata, trade secrets, know-how or other confidential or proprietary information of any former employer or third party without the written authorization of such employer or third party. Employee represents that his performance of all terms\nof this Agreement or any other agreement related to his employment with the Company has not breached and will not breach any agreement to keep in confidence the inventions, technical data, trade secrets, know-how or other\nconfidential or proprietary information of any former employer or third party acquired by Employee prior or subsequent to the commencement of his employment with the Company.\n(c) Third Party Information. Employee recognizes that the Company has received and in the future will receive confidential or proprietary information from third parties subject to a duty on the Company’s part to maintain the\nconfidentiality of such information and/or to use it only for certain limited purposes (“Third Party Information”). Employee agrees to hold all such Third Party Information in the strictest confidence and not to disclose it to any person or\nentity (other than Company personnel who need to know such information in connection with their work for the Company) or to use it except as necessary in carrying out Employee’s work for the Company consistent with the Company’s\nagreement with such third party.\n3\n5.\nAssignment of Inventions and Original Works of Authorship\n(a) Inventions and Original Works Assigned to the Company. During the term of Employee’s employment with the Company, Employee will promptly disclose to the Company, will hold in trust for the sole right and benefit of the\nCompany, and does hereby assign to the Company all rights to and interests in inventions, developments, discoveries, techniques, modifications, improvements, technology, trade secrets, computer programs, mask works, know-how,\nprocesses, concepts, methods, systems, specifications, algorithms, designs, formulas, original works of authorship, or any other intellectual property rights whatsoever, whether or not patentable or registrable under copyright, trademark or\nsimilar laws or subject to analogous protection (“Inventions”) that Employee may, during employment with the Company, solely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to\npractice, (a) that relate to the Company’s past, present or demonstrated or reasonably foreseeable future business or research, whether or not developed during normal working hours, or (b) that are developed with the use or aid of any\nCompany equipment, supplies or facilities, or (c) that use or are based on or developed from any Confidential Information of the Company or Third Party Information, or (d) that result from any work, service or duty Employee performs\nwith the Company (collectively, the “Assigned Inventions”). Employee agrees and represents that any Invention that would fall within the definition of Assigned Inventions but for having been conceived or developed or reduced to\npractice, or caused to be conceived or developed or reduced to practice during employment but before the Effective Date shall also be hereby assigned and treated as an Assigned Invention. Any assignment hereunder includes all rights of\npaternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as “moral rights,” “artist’s rights,” “droit moral” or the like. Employee further acknowledges that all Assigned Inventions are “works\nmade for hire” (to the greatest extent permitted by applicable law) and are compensated by his salary\nEmployee agrees not to allow any Invention that was conceived, developed, made or reduced to practice prior to his employment with the Company, belongs solely to Employee or belongs to Employee jointly with another, and relates in\nany way to any of the Company’s proposed businesses and products (a “Prior Invention”) to be incorporated into any product, process, technology or machine of the Company. If in the course of Employee’s employment with the\nCompany, Employee incorporates (or has previously incorporated) into a Company product, process, technology or machine a Prior Invention, the Company is hereby granted and shall have a nonexclusive, royalty-free, irrevocable,\nperpetual, worldwide license (with the right to sublicense) to make, have made, modify, make derivative works of, use, sell, and otherwise distribute or exploit such Prior Invention as art of or in connection with such product, process,\ntechnology or machine. Notwithstanding the foregoing, Employee understands that this Agreement will not be deemed to require assignment of any Invention whose assignment to the Company pursuant to this Agreement would be\nexpressly prohibited by a specifically applicable state law, regulation, rule or public policy of the State of North Carolina or the law of the jurisdiction in which Employee is primarily employed.\n(b) Maintenance of Records. Employee agrees to keep and maintain adequate and current written records of all Assigned Inventions during the term of his employment with the Company, in the format specified by the Company. The\nrecords will be available to and remain the sole property of the Company at all times. Employee agrees not to remove such records from the Company’s place of business except as expressly permitted in writing by an officer of the\nCompany. Employee agrees to provide all such records (including any copies thereof) to the Company at the time of termination of his employment with the Company.\n(c) Enforcement of Intellectual Property Rights. Employee agrees that, whenever requested by the Company, he shall assist the Company or its designee to secure the Company’s, or its designee’s, rights in the Assigned Inventions and\nany copyrights, patents, trademarks, mask work rights, moral rights, or other intellectual property rights relating thereto in any and all countries, including: the disclosure to the Company or its designee of all pertinent information and data\nwith respect thereto; the execution of all applications, specifications, oaths, assignments, recordations, and all other instruments, and the taking of all such other acts (including appearances as a witness), which the Company or its designee\nshall deem necessary in order to apply for, perfect, obtain,\n4\nmaintain, review, restore, enforce, defend and transfer such rights, or if not transferable, waive such rights, and in order to assign and convey to the Company or its designee, and any successors, assigns and nominees thereof such rights;\nand to further evidence, record and perfect the sole and exclusive rights, title and interest in and to such Assigned Inventions, and any copyrights, patents, trademarks, mask work rights, moral rights or other intellectual property rights\nrelating thereto. Employee further agrees that his obligation to execute or cause to be executed, when it is in his power to do so, any such instruments or papers or to take such other acts shall continue after the termination of this\nAgreement until the expiration of the last such intellectual property right to expire in any country of the world. If the Company or its designee is unable because of Employee’s mental or physical incapacity or unavailability or for any\nother reason to secure Employee’s signature to apply for or to pursue any application for any United States or foreign patents, copyright, mask works or other registrations covering Assigned Inventions, then Employee hereby irrevocably\ndesignates and appoints the Company and its duly authorized officers and agents as Employee’s agent and attorney in fact, to act for and in his behalf and stead to execute and file any such applications and any documents and to do all\nother lawfully permitted acts to further the application for, prosecution, issuance, maintenance or transfer of letters patent, copyright or other registrations thereon with the same legal force and effect as if originally executed by Employee.\nEmployee hereby waives and irrevocably quitclaims to the Company or its designee any and all claims, of any nature whatsoever, which Employee now or hereafter has for infringement of any and all proprietary rights assigned to the\nCompany or such designee pursuant to the terms of this Agreement.\n6.\nNon-Disparagement.\nEmployee understands and agrees that, as a condition of his employment by the Company and eligibility to participate in the Severance Plan, he agrees not to make any false, disparaging or derogatory statements to any media outlet,\nindustry group, financial institution or current or former employee, consultant, client or customer of the Company regarding the Company or any of its directors, officers, employees, agents or representatives or about the Company’s\nbusiness affairs or financial condition; provided, however, that nothing herein shall prevent Employee from making truthful disclosures to any governmental entity in response to valid legal process or in any litigation or arbitration.\n7.\nMiscellaneous.\n(a) Other Remedies. The restrictions contained in this Agreement are necessary for the protection of the legitimate business interests of the Company, including the confidential business information and goodwill of the Company and are\nconsidered by Employee to be reasonable for such purpose. If Employee violates the provisions of Sections 2 or 3, Employee agrees that any breach of this Agreement is likely to cause the Company substantial and irrevocable damage\nthat is difficult to measure and that money damages will be insufficient. Therefore, in the event of any such breach or threatened breach, Employee agrees that the Company, in addition to such other remedies that may be available\n(including in this Section 7(a)), shall have the right to obtain an injunction from a court restraining such a breach or threatened breach and the right to specific performance of the provisions of this Agreement, in addition to and cumulative\nwith any other remedy that the Company may have at law or in equity. Employee hereby waives the adequacy of a remedy at law as a defense to any such equitable relief. Employee acknowledges that the Company may cease providing\nany or all benefits under the Severance Plan. Employee acknowledges and agrees that this provision is not a provision for liquidated damages.\n(b) Disclosure of this Agreement. Employee and Company each hereby authorizes the other to notify customers of the Company, any of Employee’s future employers, potential employers or service recipients, and, for a reasonable\nbusiness purpose, others, of the terms and existence of this Agreement and Employee’s continuing obligations to the Company thereunder.\n(c) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective successors and assigns, including any entity with which, or into which, the Company may be merged or that\nmay succeed to the Company’s assets or business; provided, however, that the obligations\n5\nof Employee are personal and shall not be assigned by him. Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary or affiliate thereof to whose employ Employee\nmay be transferred without the necessity that this Agreement be re-signed at the time of such transfer.\n(d) Interpretation. If any restriction set forth in Section 2 or Section 3 is found by any court of competent jurisdiction to be unenforceable for any reason, including, but not limited to, because it extends for too long a period of time or over\ntoo great a range of activities or in too broad a geographic area, it shall be interpreted to apply to the maximum extent possible, such as only over the maximum period of time, range of activities or geographic area as to which it may be\nenforceable.\n(e) Severability. In case any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.\n(f) Survival. This Agreement shall continue in full force and effect following the cessation of Employee’s employment with the Company for any reason.\n(g) Waivers. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right. A waiver or consent given by the Company on any one occasion is effective only in that\ninstance and will not be construed as a bar to or waiver of any right on any other occasion.\n(h) Governing Law. This Agreement has been entered into in the State of North Carolina and will be governed by and construed in accordance with the laws of the North Carolina (without reference to the principles relating to the\nconflicts of laws provisions thereof). Any action, suit, or other legal proceeding that is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of competent\njurisdiction within the State of North Carolina (or, if appropriate, a federal court located within the State of North Carolina), and the Company and Employee each consents to the exclusive jurisdiction of such a court. The Company and\nEmployee each hereby irrevocably waive any right to a trial by jury in any action, suit or other legal proceeding arising under or relating to any provision of this Agreement or to any claim of forum non conveniens.\n(i) Effect on Other Agreements; Amendment. The terms of the Severance Plan and this Agreement supersede all severance provisions of any agreement executed between Employee and the Company including, but not limited to, offer\nletters, individual employment agreements, and any other policy or program of the Company, with the exception of any policy or program of the Company applicable to Employee that provides special cash benefits following a\nchange-in-control (as defined in such policy or program) of the Company. Except to the extent provided in the preceding sentence, this Agreement does not supersede any prior written Agreement between Employee and the Company\nrelating to the subject matter of this Agreement. Such previously executed agreements are not expressly modified hereby and shall remain in full force and effect. This Agreement may not be modified, changed or discharged in whole or in\npart, except by an agreement in writing signed by Employee and the Company. Employee agrees that any change or changes in his duties, salary or compensation after the signing of this Agreement shall not affect the validity or scope of\nthis Agreement.\n(j) Termination Certificate. Employee agrees to execute the Termination Certificate attached as Exhibit A upon termination.\n(k) Captions. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope or substance of any section of this Agreement.\n6\nEMPLOYEE ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS AGREEMENT AND THE SEVERANCE PLAN AND UNDERSTANDS AND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nSignatures on Page Following\n7\nRED HAT, INC.\nBy:\n/s/ DeLisa Alexander\nName:\nDeLisa Alexander\nTitle:\nEVP and Chief People Officer\nDate:\n11/24/2015\nERIC R. SHANDER\n/s/ Eric R. Shander\nDate:\n11/24/2015\nSignature Page for U.S. Employee Agreement (NC) – Eric R. Shander	Exhibit 10.46\nCONFIDENTIAL DRAFT\nU.S. EMPLOYEE AGREEMENT\nThis Agreement (the "Agreement") is made between Red Hat, Inc, a Delaware corporation (collectively with each of its subsidiaries, the "Company"), and Eric R. Shander ("Employee"), a "U.S. employee" (as shown on the\nCompany’s payroll records on the Effective Date (as defined below)) who has been selected by the Company's Chief People Officer for participation in the Red Hat, Inc. Designated U.S. Manager Severance Plan (the ”Severance Plan")\nas of November 24, 2015 (the “Effective Date”).\nIn consideration of the Company’s employment of Employee as the Company’s Vice President, Finance, the compensation and benefits package provided to Employee by the Company, and entitlement to benefits under the Severance\nPlan, and in satisfaction of a condition of Employee's participation in such Severance Plan, Employee agrees that upon the Effective Date he shall be bound by all of the restrictions set forth herein.\nIn consideration of the foregoing and intending to be legally bound, the parties agree as follows:\n1. Acknowledgment.\nEmployee acknowledges that Employee’s undermkings and commitments and the restrictions set forth in this Agreement, including in particular the non-compete and non- solicitation undertaking conmined herein, are a material\ninducement for the Company to employ Employee, to provide him with the above-referenced pay, and a requirement for Employee to become eligible as a participant in the Severance Plan Employee acknowledges that he has received a\ncopy of the Severance Plan and has had the opportunity to discuss its terms with the Company. Without regard to whether Employee ultimately receives benefits under the Severance Plan, Employee undertakes to frilly comply with the\nprovisions hereof and agrees that a breach of these provisions will cause significant financial and other damages to the Company, including loss of strategic advantages, much of which is difficult to quantify by reference solely to money\ndamages.\n2. Non-Solicitation\n(a) During Employee's employment with the Company and for a period of twelve (12) months thereafter, Employee shall not, for himself or any entity, nor shall Employee assist or provide information to a third party that would assist\nthat third party to: (i) solicit or cause to solicit for the purposes of diverting, mking away or disrupting, or of attempting to divert, take away or disrupt, the Company's relationship or business with any person or entity who, at any time\nduring the six (6) months preceding such action was or is a client, customer or business partner of the Company, or prospective client, customer or business partner of the Company; (ii) solicit, induce or attempt to induce, any employee or\nindependent contractor of the Company to terminate his employment or engagement with the Company; or (iii) hire, recruit or engage as an employee or independent contractor, or attempt to hire, recruit or engage as an employee or\nindependent contractor, any person who was employed or otherwise engaged by the Company within six (6) months prior to such action. For purposes of this provision, a "prospective client, customer or business partner" shall mean any\nperson or entity (x) with whom the Company has had discussions as of Employee’s termination of employment with the Company, (y) to whom the Company or made a proposal to do business about which the Employee was aware during\nhis employment, or (2) that has executed a non-disclosure agreement with the Company, provided Employee was aware of such fact during this employment with the Company.\n(b) If Employee violates any of the provisions of this Section 2, Employee shall continue to be bound by the restrictions set forth in this Section 2 for an additional period equal to the aggregate period of such violation.\n—\n3. Non-Competition.\n(a) Definitions. For purposes of this Agreement, the following terms shall have the following meanings:\n(1) "Restricted Bum’ness" is defined as a software or software-related business that competes with the Company. ”Restricted Business” includes, but is not limited to, the following companies: Amazoncom, Inc., CA, Inc. (Computer\nAssociates), Canonical Ltd, Citrix Systems, Inc, EMC Corporation, Google, Inc., Hewlett Packard (HP) Corporation, International Business Machines (IBM) Corporation, Microsoft Corporation, Mirantis, Inc., Oracle Corporation,\nPivoml Software, Inc., salesforce.com, Inc. andVMware, Inc.\n(2) "Restricted Territory" is defined as: Anywhere within the United States where the Company has clients and/or has marketed its products or services at the time Employee leaves employment with the Company.\n(b) Non-compete Period.\n(1) During Employee’s employment with the Company and for a period of twelve (12) months thereafter, within the Restricted Territory, Employee shall not, whether as an owner, director, employee, independent contractor or otherwise,\nprovide to a Restricted Business any services similar to or related to the services Employee performed for or with the Company if they are related to any product or service line that competes with any Company product or service line\nexisting or planned as of Employee's termination from employment with the Company: (i) about which Employee had access to operational, financial, or strategic information that is confidential (as defined below) while employed with\nthe Company; or (ii) for which Employee was responsible and/or with which Employee was involved; or (iii) about which Employee was privy to confidential, non-public, and/or proprietary information during Employee' s employment\nwith the Company.\n(2) At the request of Employee, following a confidential consultation, the Company will provide its good faith view as to whether a proposed relationship Employee may wish to pursue appears likely to violate this Section. No view by\nthe Company that a violation is unlikely shall prevent the Company from pursuing Employee under this provision if the relationship described by Employee changes, the product or service line at the Restricted Business becomes subject\nto this Section, or the information provided by Employee to the Company was incomplete or incorrect\n(c) Employee will be treated as an owner of a Restricted Business if he owns an equity interest in the business (except for passive ownership, directly or indirectly, of not more than 1% of the outsmnding stock of a publicly-held company\nand of not more than 5% of the outsmnding stock of a private company).\n(d) If Employee violates any of the provisions of this Section 3, Employee shall continue to be bound by the restrictions set forth in this Section 3 for an additional period equal to the aggregate period of such violation.\n4. Confidential Information.\n(a) Confidential Information. Employee agrees at all times, both during and after the term of his employment with the Company, to hold in the strictest confidence, and not to use (except for the benefit of the Company at the Company’s\ndirection) or disclose (without the written authorization of the General Counsel or other authorized Company officer), regardless of when disclosed to Employee, any and all technical data, trade secrets, know-how or other confidential or\nproprietary information of the Company, including without limitation any and all information related to the products, product plans, technologies, inventions, mask works, ideas,\n—\nprocesses, formulas, source and object codes, computer programs, data bases, other works of authorship, improvements, discoveries, developments, designs and techniques, research, developmental or experimental work, customer and\nbusiness partner lists, employee lists, structure, business plans, sales or marketing plans or results, markets, prices and costs, financial information, or other subject matter pertaining to any business of the Company or any of its licensors,\ncustomers, business partners, consultants or customers (collectively, “Confidential Information")i Employee understands that Confidential Information further includes, but is not limited to, information pertaining to any aspect of the\nCompany's business which is either information not known (or known as a result of a wrongful act of Employee or of others who were under confidentiality obligations as to the item oritems involved) by actual or potential competitors of\nthe Company or other third parties not under confidentiality obligations to the Company, or is otherwise propriemry information of the Company or its customers or suppliers, whether of a technical nature or otherwise Employee further\nunderstands that Confidential Information does not include any of the foregoing items which is or has become publicly and widely known and made generally available through no wrongful act of Employee or of others who were under\nconfidentiality obligations as to the item or items involved. Furthermore, the following shall not be a violation of this Agreement: (i) disclosure or use of Confidential Information that in good faith is determined to be required or\nappropriate to advance the best interests of the Company in connection with Employee' s work as an employee of the Company and is not inconsistent with any lawful request or direction that Employee may receive from the Company's\nBoard of Directors (the "Board") or a committee or other represenmtive of the Board or any authorized Company officer, (ii) disclosure of Confidential Information when required by a court of law, by any governmental agency having\nsupervisory authority over the business of the Company or by any administrative or legislative body (including a committee thereof) with apparent jurisdiction to order Employee to divulge, disclose or make accessible such information;\nprovided, however, that to the extent permitted by law, prior to any such disclosure Employee must notify the Company' s General Counsel of such requirement sufficiently in advance to allow the Company a reasonable opportunity to\nmke any action that it determines appropriate to protect such Confidential Information and Employee agrees to cooperate with the Company in good faith in taking any such action, or (iii) disclosure of Confidential Information to\nEmployee's spouse, attorney and/or personal mx and financial advisors as reasonably necessary or appropriate to advance Employee' s tax, financial and other personal planning (each an "Exempt Person"); provided, however, that prior\nto any disclosure of Confidential Information to an Exempt Person Employee will inform such Exempt Person of Employee's obligations hereunder and of their obligation to protect such Confidential Information to the same extent and\nEmployee understands that any disclosure or use of any Confidential Information by an Exempt Person shall be deemed to be a breach of this Section 4 by Employee.\n(b) Former Employer Information Employee agrees that he does not possess, has not brought, and will not bring to the Company, nor use or disclose in the course of the performance of his duties at the Company, any inventions, technical\ndam, trade secrets, know-how or other confidential or proprietary information of any former employer or third party without the written authorization of such employer or third party. Employee represents that his performance of all terms\nof this Agreement or any other agreement related to his employment with the Company has not breached and will not breach any agreement to keep in confidence the inventions, technical data, trade secrets, know-how or other\nconfidential or proprietary information of any former employer or third party acquired by Employee prior or subsequent to the commencement of his employment with the Company.\n(c) Third Pagy Information. Employee recognizes that the Company has received and in the future will receive confidential or proprietary information from third parties subject to a duty on the Company' s part to maintain the\nconfidentiality of such information and/or to use it only for certain limited purposes (“Third Party Information"). Employee agrees to hold all such Third Party Information in the strictest confidence and not to disclose it to any person or\nentity (other than Company personnel who need to know such information in connection with their work for the Company) or to use it except as necessary in carrying out Employee's work for the Company consistent with the Company' s\nagreement with such third party.\n—\n5. Assignment of Inventions and Original Works of Authorship\n \n(a) Inventions and Original Works Assigned to the Company. During the term of Employee's employment with the Company, Employee will promptly disclose to the Company, will hold in trust for the sole light and benefit of the\n \nCompany, and does hereby assign to the Company all lights to and interests in inventions, developments, discoveries, techniques, modifications, improvements, technology, trade secrets, computer programs, mask works, know-how,\nprocesses, concepts, methods, systems, specifications, algolithms, designs, formulas, original works of authorship, or any other intellectual property lights whatsoever, whether or not patentable or registiable under copyright, trademark or\nsimilarlaws or subject to analogous protection ("Inventions") that Employee may, during employment with the Company, solely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to\npractice, (a) that relate to the Company' s past, present or demonstrated or reasonably foreseeable future business or research, whether or not developed during normal working hours, or (b) that are developed with the use or aid of any\nCompany equipment, supplies or facilities, or (c) that use or are based on or developed from any Confidential Information of the Company or Third Party Information, or (d) that result from any work, service or duty Employee performs\nwith the Company (collectively, the ”Assigned Inventions"). Employee agrees and represents that any Invention that would fall within the definition of Assigned Inventions but for having been conceived or developed or reduced to\npractice, or caused to be conceived or developed or reduced to practice during employment but before the Effective Date shall also be hereby assigned and treated as an Assigned Invention. Any assignment hereunder includes all rights of\npaternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as "moral rights,” ”artist' s lights," "droit moral" or the like. Employee further acknowledges that all Assigned Inventions are "works\nmade for hire" (to the greatest extent permitted by applicable law) and are compensated by his salary\nEmployee agrees not to allow any Invention that was conceived, developed, made or reduced to practice priorto his employment with the Company, belongs solely to Employee or belongs to Employee jointly with another, and relates in\nany way to any of the Company' s proposed businesses and products (a "Prior Invention") to be incorporated into any product, process, technology or machine of the Company. If in the course of Employee's employment with the\nCompany, Employee incorporates (or has previously incorporated) into a Company product, process, technology or machine a Prior Invention, the Company is hereby granted and shall have a nonexclusive, royalty-free, irrevocable,\nperpetual, worldwide license (with the right to sublicense) to make, have made, modify, make derivative works of, use, sell, and otherwise distribute or exploit such Prior Invention as art of or in connection with such product, process,\ntechnology or machine. Notwithstanding the foregoing, Employee understands that this Agreement will not be deemed to require assignment of any Invention whose assignment to the Company pursuant to this Agreement would be\nexpressly prohibited by a specifically applicable state law, regulation, rule or public policy of the State of North Carolina or the law of the jurisdiction in which Employee is primarily employed.\n(b) Maintenance of Records. Employee agrees to keep and maintain adequate and current written records of all Assigned Inventions during the term of his employment with the Company, in the format specified by the Company. The\nrecords will be available to and remain the sole property of the Company at all times. Employee agrees not to remove such records from the Company' s place of business except as expressly permitted in writing by an officer of the\nCompany. Employee agrees to provide all such records (including any copies thereof) to the Company at the time of termination of his employment with the Company.\n(c) Enforcement of Intellectual Property Rights. Employee agrees that, whenever requested by the Company, he shall assist the Company or its designee to secure the Company’s, or its designee’s, rights in the Assigned Inventions and\nany copyrights, patents, trademarks, mask work lights, moral rights, or other intellectual property rights relating thereto in any and all countries, including: the disclosure to the Company or its designee of all pertinent information and data\nwith respect thereto; the execution of all applications, specifications, oaths, assignments, recordations, and all other instruments, and the taking of all such other acts (including appearances as a witness), which the Company or its designee\nshall deem necessary in order to apply for, perfect, obtain,\n—\nmaintain, review, restore, enforce, defend and transfer such rights, or if not transferable, waive such rights, and in order to assign and convey to the Company or its designee, and any successors, assigns and nominees thereof such rights,-\nand to further evidence, record and perfect the sole and exclusive rights, title and interest in and to such Assigned Inventions, and any copyrights, patents, trademarks, mask work rights, moral rights or other intellectual property rights\nrelating thereto. Employee further agrees that his obligation to execute or cause to be executed, when it is in his power to do so, any such instruments or papers orto take such other acts shall continue after the termination of this\nAgreement until the expiration of the last such intellectual property right to expire in any country of the world. If the Company or its designee is unable because of Employee's mental or physical incapacity or unavailability or for any\nother reason to secure Employee’s signature to apply for or to pursue any application for any United States or foreign patents, copyright, mask works or other registrations covering Assigned Inventions, then Employee hereby irrevocably\ndesignates and appoints the Company and its duly authorized officers and agents as Employee's agent and attorney in fact, to act for and in his behalf and stead to execute and file any such applications and any documents and to do all\nother lawfully permitted acts to further the application for, prosecution, issuance, maintenance or transfer of letters patent, copyright or other registrations thereon with the same legal force and effect as if originally executed by Employee.\nEmployee hereby waives and irrevocably quitclaims to the Company or its designee any and all claims, of any nature whatsoever, which Employee now or hereafter has for infringement of any and all proprietary rights assigned to the\nCompany or such designee pursuant to the terms of this Agreement\n6. Non-Disparagement.\nEmployee understands and agrees that, as a condition of his employment by the Company and eligibility to participate in the Severance Plan, he agrees not to make any false, disparaging or derogatory statements to any media outlet,\nindustry group, financial institution or current or former employee, consultant, client or customer of the Company regarding the Company or any of its directors, officers, employees, agents or representatives or about the Company' s\nbusiness affairs or financial condition; provided, however, that nothing herein shall prevent Employee from making truthful disclosures to any governmental entity in response to valid legal process or in any litigation or arbitration\n7. Miscellaneous\n(a) Other Remedies. The restrictions contained in this Agreement are necessary for the protection of the legitimate business interests of the Company, including the confidential business information and goodwill of the Company and are\nconsidered by Employee to be reasonable for such purpose. If Employee violates the provisions of Sections 2 or 3, Employee agrees that any breach of this Agreement is likely to cause the Company substantial and irrevocable damage\nthat is difficult to measure and that money damages will be insufficient Therefore, in the event of any such breach or threatened breach, Employee agrees that the Company, in addition to such other remedies that may be available\n(including in this Section 7(a)), shall have the right to obtain an injunction from a court restraining such a breach or threatened breach and the right to specific performance of the provisions of this Agreement, in addition to and cumulative\nwith any other remedy that the Company may have at law or in equity. Employee hereby waives the adequacy of a remedy at law as a defense to any such equimble relief. Employee acknowledges that the Company may cease providing\nany or all benefits under the Severance Plan. Employee acknowledges and agrees that this provision is not a provision for liquidated damages.\n(b) Disclosure of this Agreement. Employee and Company each hereby authorizes the other to notify customers of the Company, any of Employee’s future employers, potential employers or service recipients, and, for a reasonable\nbusiness purpose, others, of the terms and existence of this Agreement and Employee' s continuing obligations to the Company thereunder.\n(c) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective successors and assigns, including any entity with which, or into which, the Company may be merged or that\nmay succeed to the Company's assets or business,- provided, however, that the obligations\n—\nof Employee are personal and shall not be assigned by him. Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary or affiliate thereof to whose employ Employee\nmay be transferred without the necessity that this Agreement he resigned at the time of such transfer.\n(d) Integpretation. If any restriction set forth in Section 2 or Section 3 is found by any court of competent jurisdiction to be unenforceable for any reason, including, but not limited to, because it extends for too long a period of time or over\ntoo great a range of activities or in too broad a geographic area, it shall be interpreted to apply to the maximum extent possible, such as only over the maximum period of time, range of activities or geographic area as to which it may be\nenforceable.\n(e) Severabilim. In case any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.\n(f) Survival. This Agreement shall continue in full force and effect following the cessation of Employee’s employment with the Company for any reason.\n(g) Waivers. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right. A waiver or consent given by the Company on any one occasion is effective only in that\ninstance and will not be construed as a barto or waiver of any right on any other occasion.\n(h) Governing Law. This Agreement has been entered into in the State of North Carolina and will be governed by and construed in accordance with the laws of the North Carolina (without reference to the principles relating to the\nconflicts of laws provisions thereof). Any action, suit, or other legal proceeding that is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of competent\njurisdiction within the State of North Carolina (or, if appropriate, a federal court located within the State of North Carolina), and the Company and Employee each consents to the exclusive jurisdiction of such a court. The Company and\nEmployee each hereby irrevocably waive any right to a trial by jury in any action, suit or other legal proceeding arising under or relating to any provision of this Agreement or to any claim of forum non conveniens.\n(i) Effect on OtherAggements; Amendment. The terms of the Severance Plan and this Agreement supersede all severance provisions of any agreement executed between Employee and the Company including, but not limited to, offer\nletters, individual employment agreements, and any other policy or program of the Company, with the exception of any policy or program of the Company applicable to Employee that provides special cash benefits following a\nchange-in—control (as defined in such policy or program) of the Company. Except to the extent provided in the preceding sentence, this Agreement does not supersede any prior written Agreement between Employee and the Company\nrelating to the subject matter of this Agreement Such previously executed agreements are not expressly modified hereby and shall remain in full force and effect This Agreement may not be modified, changed or discharged in whole or in\npart, except by an agreement in writing signed by Employee and the Company. Employee agrees that any change or changes in his duties, salary or compensation after the signing of this Agreement shall not affect the validity or scope of\nthis A greement.\nLi) Termination Certificate. Employee agrees to execute the Termination Certificate attached as Exhibit A upon termination.\n(k) Captions. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope or substance of any section of this Agreement\nEMPLOYEE ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS AGREEMENT AND THE SEVERANCE PLAN AND UNDERSTANDS AND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nSignatures on Page Following\nRED HAT, INC.\nBy: /5/ DeLisa Alexander\nName: le isafi exanfler\nTitle: EVP and Chief People Officer\nDate: 11/24/2015\nERIC R. SHANDER\n/5/ Eric R. Shander\nDate: —H727172UT5\nSignature Page forUiS. Employee AgIeement (NC) - Eric R. Shander	Exhibit 10.46\nCONFIDENTIAL DRAFT\nU.S. EMPLOYEE AGREEMENT\nThis Agreement (the "Agreement") is made between Red Hat, Inc. a Delaware corporation (collectively with each of its subsidiaries, the "Company"), and Eric R. Shander ("Employee"), a "U.S. employee" (as shown on the\nCompany's payroll records on the Effective Date (as defined below)) who has been selected by the Company's Chief People Officer for participation in the Red Hat, Inc. Designated U.S. Manager Severance Plan (the "Severance Plan")\nas of November 24, 2015 (the "Effective Date").\nIn consideration of the Company's employment of Employee as the Company's Vice President, Finance, the compensation and benefits package provided to Employee by the Company, and entitlement to benefits under the Severance\nPlan, and in satisfaction of a condition of Employee's participation in such Severance Plan, Employee agrees that upon the Effective Date he shall be bound by all of the restrictions set forth herein\nIn consideration of the foregoing and intending to be legally bound, the parties agree as follows:\n1.\nAcknowledgment\nEmployee acknowledges that Employee's undertakings and commitments and the restrictions set forth in this Agreement, including in particular the non-compete and non-solicitation undertaking contained herein, are a material\ninducement for the Company to employ Employee, to provide him with the ve-referenced pay, and a requirement for Employee to become eligible as a participant in the Severance Plan Employee acknowledges that he has received a\ncopy of the Severance Plan and has had the opportunity to discuss its terms with the Company. Without regard to whether Employee ultimately receives benefits under the Severance Plan, Employee undertakes to fully comply with the\nprovisions hereof and agrees that a breach of these provisions wil cause significant financial and other damages to the Company, including loss of strategic advantages, much of which is difficult to quantify by reference solely to money\ndamages.\n2.\nNon Solicitation\n(a) During Employee's employment with the Company and for a period of twelve (12) months thereafter, Employee shall not, for himself or any entity, nor shal Employee assist or provide information to a third party that would assist\nthat third party to: (i) solicit or cause to solicit for the purposes of diverting, taking away or disrupting, or of attempting to divert, take away or disrupt, the Company's relationship or business with any person or entity who, at any time\nduring the six (6) months preceding such action was or is a client, customer or business partner of the Company, or prospective client, customer or business partner of the Company; (ii) solicit induce or attempt to induce, any employee or\nindependent contractor of the Company to terminate his employment or engagement with the Company; or (iii) hire, recruit or engage as an employee or independent contractor, or attempt to hire, recrui or engage as an employee or\nindependent contractor, any person who was employed or otherwise engaged by the Company within six (6) months prior to such action. For purposes of this provision a 'prospective client, customer or business partner" shall mean any\nperson or entity (x) with whom the Company has had discussions as of Employee's termination of employment with the Company, (y) to whom the Company or made a proposal to do business about which the Employee was aware during\nhis employment, or (z) that has executed a non-disclosure agreement with the Company, provided Employee was aware of such fact during this employment with the Company.\n(b) If Employee violates any of the provisions of this Section 2, Employee shall continue to be bound by the restrictions set forth in this Section 2 for an additional period equal to the aggregate period of such violation.\n3.\n-Competition\n(a) Definitions For purposes of this Agreement, the following terms shall have the following meanings:\n(1) "Restricted Business" is defined as a software or software-related business that competes with the Company. "Restricted Business" includes, but is not limited to, the following companies Amazon.com Inc. CA Inc. (Computer\nAssociates), Canonical Ltd. Citrix Systems Inc. EMC Corporation, Google Inc., Hewlett Packard (HP) Corporation, International Business Machines (IBM) Corporation, Microsoft Corporation, Mirantis, Inc., Oracle Corporation,\nPivotal Software, Inc. salesforce.com Inc and V Mware, Inc.\n(2) "Restricted Territory" is defined as: Anywhere within the United States where the Company has clients and/or has marketed its products or services at the time Employee leaves employment with the Company.\n(b) Non-compete Period\n(1) During Employee's employmen with the Company and for a period of twelve (12) months thereafter, within the Restricted Territory, Employee shall not, whether as an owner, director, employee independent contractor or otherwise,\nprovide to a Restricted Business any services similar to or related to the services Employee performed for or with the Company if they are related to any product or service line that competes with any Company product or service line\nexisting or planned as of Employee's termination from employment with the Company: (i) about which Employee had access to operational, financial, or strategic information that is confidential (as defined below) while employed\nwith\nthe Company; or (ii) for which Employee was responsible and/or with which Employee was involved; or (iii) about which Employee was privy to confidential, non public, and/or proprietary information during Employee's employment\nwith the Company.\n(2) At the request of Employee following a confidential consultation, the Company will provide its good faith view as to whether a proposed relationship Employee may wish to pursue appears likely to violate this Section. No view\nby\nthe Company that a violation is unlikely shall prevent the Company from pursuing Employee under this provision if the relationship described by Employee changes, the product or service line at the Restricted Business becomes subject\nto this Section, or the information provided by Employee to the Company was incomplete or incorrect\n(c) Employee will be treated as an owner of a Restricted Business if he owns an equity interest in the business (except for passive ownership, directly or indirectly, of not more than 1% of the outstanding stock of a publicly-held company\nand of not more than 5% of the outstanding stock of a private company).\n(d) If Employee violates any of the provisions of this Section 3, Employee shall continue to be bound by the restrictions set forth in this Section 3 for an additional period equal to the aggregate period of such violation.\n4.\nConfidential Information.\n(a) Confidential Information Employee agrees at all times, both during and after the term of his employment with the Company, to hold in the strictest confidence and no to use (except for the benefit of the Company at the Company's\ndirection) or disclose (without the written authorization of the General Counsel or other authorized Company officer), regardless of when disclosed to Employee, any and all technical data, trade secrets know-how or other confidential or\nproprietary information of the Company, including without limitation any and all information related to the products, product plans, technologies, inventions, mask works, ideas,\n2\nprocesses, formulas, source and object codes, computer programs, data bases, other works of authorship, improvements, discoveries developments designs and techniques, research developmental or experimenta work, customer and\nbusiness partner lists, employee lists, structure, business plans, sales or marketing plans or results, markets, prices and costs, financial information, or other subject matter pertaining to any business of the Company or any of its licensors,\ncustomers, business partners, consultants or customers (collectively, "Confidential Information"). Employee understands that Confidential Information further includes, but is not limited to, information pertaining to any aspect of the\nCompany's business which is either information not known (or known as a result of a wrongful act of Employee or of others who were under confidentiality obligations as to the item or items involved) by actual or potential competitors of\nthe Company or other third parties not under confidentiality obligations to the Company, or is otherwise proprietary information of the Company or its customers or suppliers, whether of a technical nature or otherwise Employee further\nunderstands that Confidential Information does not include any of the foregoing items which is or has become publicly and widely known and made generally available through no wrongful act of Employee or of others who were under\nconfidentiality obligations as to the item or items involved. Furthermore, the following shall not be a violation of this Agreement: (i) disclosure or use of Confidential Information that in good faith is determined to be required or\nappropriate to advance the best interests of the Company in connection with Employee's work as an employee of the Company and is not inconsistent with any lawful request or direction that Employee may receive from the Company's\nBoard of Directors (the "Board") or a committee or other representative of the Board or any authorized Company officer, (ii) disclosure of Confidential Information when required by a court of law, by any governmental agency having\nsupervisory authority over the business of the Company or by any administrative or legislative body (including a committee thereof) with apparent jurisdiction to order Employee to divulge disclose or make accessible such information;\nprovided, however, that to the extent permitted by law, prior to any such disclosure Employee must notify the Company's General Counsel of such requirement sufficiently in advance to allow the Company a reasonable opportunity to\ntake any action that it determines appropriate to protect such Confidential Information and Employee agrees to cooperate with the Company in good faith in taking any such action, or (iii) disclosure of Confidential Information to\nEmployee's spouse, attomey and/or personal tax and financial advisors as reasonably necessary or appropriate to advance Employee's tax, financial and other persona planning (each an "Exempt Person"); provided however, that prior\nto any disclosure of Confidential Information to an Exempt Person Employee will inform such Exempt Person of Employee's obligations hereunder and of their obligation to protect such Confidential Information to the same extent and\nEmployee understands that any disclosure or use of any Confidential Information by an Exempt Person shall be deemed to be a breach of this Section 4 by Employee.\n(b) Former Employer Information Employee agrees that he does not possess, has not brought, and will not bring to the Company, nor use or disclose in the course of the performance of his duties at the Company, any inventions,\ntechnical\ndata,\ntrade secrets, know-how or other confidential or proprietary information of any former employer or third party without the written authorization of such employer or third party. Employee represents that his performance of all terms\nof this Agreement or any other agreement related to his employment with the Company has not breached and will not breach any agreement to keep in confidence the inventions, technical data, trade secrets, know-how or other\nconfidential or proprietary information of any former employer or third party acquired by Employee prior or subsequent to the commencement of his employment with the Company.\n(c)\nThird Party Information Employee recognizes that the Company has received and in the future will receive confidentia or proprietary information from third parties subject to a duty on the Company's part to maintain the\nconfidentiality of such information and/or to use it only for certain limited purposes ("Third Party Information"). Employee agrees to hold all such Third Party Information in the strictest confidence and not to disclose it to any person or\nentity (other than Company personnel who need to know such information in connection with their work for the Company) or to use it except as necessary in carrying out Employee's work for the Company consistent with the Company's\nagreement with such third party.\n3\n5.\nAssignment of Inventions and Original Works of Authorship\n(a) Inventions and Original Works Assigned to the Company. During the term of Employee's employment with the Company, Employee will promptly disclose to the Company, will hold in trust for the sole right and benefit of the\nCompany, and does hereby assign to the Company all rights to and interests in inventions developments, discoveries, techniques, modifications, improvements, technology, trade secrets, computer programs, mask works, know-how,\nprocesses, concepts methods systems, specifications, algorithms, designs, formulas, original works of authorship, or any other intellectual property rights whatsoever, whether or not patentable or registrable under copyright trademark\nor\nsimilar laws or subject to analogous protection ("Inventions") that Employee may, during employment with the Company, solely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced\nto\npractice, (a) that relate to the Company's past, present or demonstrated or reasonably foreseeable future business or research, whether or not developed during normal working hours, or (b) that are developed with the use or aid of any\nCompany equipment, supplies or facilities, or (c) that use or are based on or developed from any Confidential Information of the Company or Third Party Information, or (d) that result from any work service or duty Employee performs\nwith the Company (collectively, the Assigned Inventions") Employee agrees and represents that any Invention that would fall within the definition of Assigned Inventions but for having been conceived or developed or reduced to\npractice, or caused to be conceived or developed or reduced to practice during employment but before the Effective Date shall also be hereby assigned and treated as an Assigned Invention. Any assignment hereunder includes all rights of\npatemity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as "moral rights," "artist's rights," "'droit moral" or the like. Employee further acknowledges that all Assigned Inventions are "works\nmade for hire" (to the greatest extent permitted by applicable law) and are compensated by his salary\nEmployee agrees not to allow any Invention that was conceived, developed, made or reduced to practice prior to his employment with the Company, belongs solely to Employee or belongs to Employee jointly with another, and relates in\nany way to any of the Company's proposed businesses and products (a "Prior Invention") to be incorporated into any product, process, technology or machine of the Company. If in the course of Employee's employment with the\nCompany, Employee incorporates (or has previously incorporated) into a Company product, process, technology or machine a Prior Invention, the Company is hereby granted and shal have a nonexclusive, royalty-free, irrevocable,\nperpetual worldwide license (with the right to sublicense) to make, have made, modify, make derivative works of, use, sell, and otherwise distribute or exploit such Prior Invention as art of or in connection with such product, process,\ntechnology or machine. Notwithstanding the foregoing, Employee understands that this Agreement will not be deemed to require assignment of any Invention whose assignment to the Company pursuant to this Agreemen would be\nexpressly prohibited by a specifically applicable state law, regulation, rule or public policy of the State of North Carolina or the law of the jurisdiction in which Employee is primarily employed.\n(b) Maintenance of Records Employee agrees to keep and maintain adequate and current written records of all Assigned Inventions during the term of his employment with the Company, in the format specified by the Company The\nrecords will be available to and remain the sole property of the Company at all times. Employee agrees not to remove such records from the Company's place of business except as expressly permitted in writing by an officer of the\nCompany. Employee agrees to provide all such records (including any copies thereof) to the Company at the time of termination of his employment with the Company.\n(c)\nEnforcement of Intellectual Property Rights Employee agrees that, whenever requested by the Company, he shall assist the Company or its designee to secure the Company's, or its designee's rights in the Assigned Inventions and\nany copyrights, patents, trademarks, mask work rights, moral rights, or other intellectual property rights relating thereto in any and all countries, including: the disclosure to the Company or its designee of all pertinent information and data\nwith respect thereto; the execution of all applications, specifications, oaths, assignments, recordations, and all other instruments, and the taking of all such other acts (including appearances as a witness) which the Company or its designee\nshall deem necessary in order to apply for, perfect, obtain,\n4\nmaintain, review, restore, enforce, defend and transfer such rights, or if not transferable, waive such rights, and in order to assign and convey to the Company or its designee, and any successors, assigns and nominees thereof such rights;\nand to further evidence, record and perfect the sole and exclusive rights title and interest in and to such Assigned Inventions, and any copyrights, patents, trademarks, mask work rights, moral rights or other intellectual property rights\nrelating thereto. Employee further agrees that his obligation to execute or cause to be executed, when it is in his power to do so, any such instruments or papers or to take such other acts shall continue after the termination of this\ngreement unti the expiration of the last such intellectual property right to expire in any country of the world If the Company or its designee is unable because of Employee's mental or physical incapacity or unavailability or for any\nother reason to secure Employee's signature to apply for or to pursue any application for any United States or foreign patents, copyright, mask works or other registrations covering A ssigned Inventions, then Employee hereby irrevocably\ndesignates and appoints the Company and its duly authorized officers and agents as Employee's agent and attomey in fact to act for and in his behalf and stead to execute and file any such applications and any documents and to do all\nother lawfully permitted acts to further the application for, prosecution, issuance, maintenance or transfer of letters patent, copyright or other registrations thereon with the same legal force and effect as if originally executed by Employee.\nEmployee hereby waives and irrevocably quitclaims to the Company or its designee any and all claims of any nature whatsoever, which Employee now or hereafter has for infringement of any and all proprietary rights assigned to the\nCompany or such designee pursuant to the terms of this Agreement.\n6.\nNon-Disparagement\nEmployee understands and agrees that, as a condition of his employment by the Company and eligibility to participate in the Severance Plan, he agrees not to make any false, disparaging or derogatory statements to any media outlet,\nindustry group, financial institution or current or former employee, consultant, client or customer of the Company regarding the Company or any of its directors, officers, employees, agents or representatives or about the Company's\nbusiness affairs or financial condition provided, however, that nothing herein shal prevent Employee from making truthful disclosures to any governmental entity in response to valid legal process or in any litigation\nor\narbitration.\n7.\nMiscellaneous\n(a) Other Remedies The restrictions contained in this Agreement are necessary for the protection of the legitimate business interests of the Company, including the confidential business information and goodwill of the Company and are\nconsidered by Employee to be reasonable for such purpose If Employee violates the provisions of Sections 2 or 3, Employee agrees that any breach of this Agreement is likely to cause the Company substantial and irrevocable damage\nthat is difficult to measure and that money damages will be insufficient. Therefore, in the event of any such breach or threatened breach Employee agrees that the Company, in addition to such other remedies that may be available\n(including in this Section 7(a)) shall have the right to obtain an injunction from a court restraining such a breach or threatened breach and the right to specific performance of the provisions of this Agreement in addition to and cumulative\nwith\nany other remedy that the Company may have at law or in equity Employee hereby waives the adequacy of a remedy at law as a defense to any such equitable relief. Employee acknowledges that the Company may cease providing\nany or all benefits under the Severance Plan. Employee acknowledges and agrees that this provision is not a provision for liquidated damages.\n(b) Disclosure of this Agreement. Employee and Company each hereby authorizes the other to notify customers of the Company, any of Employee's future employers, potential employers or service recipients, and, for a reasonable\nbusiness purpose, others, of the terms and existence of this Agreement and Employee's continuing obligations to the Company thereunder.\n(c) Successors and ssigns This A greement shall be binding upon and inure to the benefit of both parties and their respective successors and assigns, including any entity with which, or into which, the Company may be merged or that\nmay succeed to the Company's assets or business; provided however that the obligations\n5\nof Employee are personal and shall not be assigned by him. Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary or affiliate thereof to whose employ Employee\nmay be transferred without the necessity that this Agreement be re signed at the time of such transfer.\n(d) Interpretation If any restriction set forth in Section 2 or Section 3 is found by any court of competent jurisdiction to be unenforceable for any reason, including, but not limited to, because it extends for too long a period of time or over\ntoo great a range of activities or in too broad a geographic area, it shall be interpreted to apply to the maximum extent possible such as only over the maximum period of time, range of activities or geographic area as to which it may be\nenforceable.\n(e) Severability In case any provision of this Agreement shal be invalid, illega or otherwise unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby\n(f) Survival This Agreement shall continue in full force and effect following the cessation of Employee's employment with the Company for any reason.\n(g) Waivers. No delay or omission by the Company in exercising any right under this A greement wil operate as a waiver of that or any other right A waiver or consent given by the Company on any one occasion is effective only in that\ninstance and will not be construed as a bar to or waiver of any right on any other occasion.\n(h) Goveming Law This Agreement has been entered into in the State of North Carolina and will be govered by and construed in accordance with the laws of the North Carolina (without reference to the principles relating to the\nconflicts of laws provisions thereof). Any action, suit, or other legal proceeding that is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of competent\njurisdiction within the State of North Carolina (or, if appropriate, a federal court located within the State of North Carolina), and the Company and Employee each consents to the exclusive jurisdiction of such a court. The Company and\nEmployee each hereby irrevocably waive any right to a trial by jury in any action, suit or other legal proceeding arising under or relating to any provision of this A greement or to any claim of forum non conveniens.\n(i) Effect on Other Agreements; Amendment. The terms of the Severance Plan and this A greement supersede all severance provisions of any agreement executed between Employee and the Company including, but not limited to, offer\nletters individual employment agreements, and any other policy or program of the Company, with the exception of any policy or program of the Company applicable to Employee that provides special cash benefits following a\nchange-in-control (as defined in such policy or program) of the Company. Except to the extent provided in the preceding sentence, this Agreement does not supersede any prior written Agreement between Employee and the Company\nrelating to the subject matter of this Agreement. Such previously executed agreements are not expressly modified hereby and shall remain in ful force and effect This Agreement may not be modified, changed or discharged in whole or in\npart, except by an agreement in writing signed by Employee and the Company. Employee agrees that any change or changes in his duties, salary or compensation after the signing of this Agreement shall not affect the validity or scope\nof\nthis A greement.\n(j) Termination Certificate Employee agrees to execute the Termination Certificate attached as Exhibit A upon termination\n(k) Captions The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope or substance of any section of this Agreement.\n6\nEMPLOYEE ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS AGREEMENT AND THE SEVERANCE PLAN AND UNDERSTANDS AND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nSignatures on Page Following\n7\nRED HAT, INC.\nBy:\n/s/ DeLisa Alexander\nName:\nDeLisa Alexander\nTitle:\nEVP and Chief People Officer\nDate:\n11/24/2015\nERIC R. SHANDER\n/s/ Eric R. Shander\nDate:\nI1/24/2015\nSignature Page for U.S Employee Agreement (NC) Eric R. Shander	Exhibit 10.46\nCONFIDENTIAL DRAFT\nU.S. EMPLOYEE AGREEMENT\nThis Agreement (the “Agreement”) is made between Red Hat, Inc., a Delaware corporation (collectively with each of its subsidiaries, the “Company”), and Eric R. Shander (“Employee”), a “U .S. employee” (as shown on the\nCompany’s payroll records on the Effective Date (as defined below)) who has been selected by the Company’s Chief People Officer for participation in the Red Hat, Inc. Designated U.S. Manager Severance Plan (the “Severance Plan”)\nas of November 24, 2015 (the “Effective Date”).\nIn consideration of the Company’s employment of Employee as the Company’s Vice President, Finance, the compensation and benefits package provided to Employee by the Company, and entitlement to benefits under the Severance\nPlan, and in satisfaction of a condition of Employee’s participation in such Severance Plan, Employee agrees that upon the Effective Date he shall be bound by all of the restrictions set forth herein.\nIn consideration of the foregoing and intending to be legally bound, the parties agree as follows:\n1.\nAcknowledgment.\nEmployee acknowledges that Employee’s undertakings and commitments and the restrictions set forth in this Agreement, including in particular the non-compete and non-solicitation undertaking contained herein, are a material\ninducement for the Company to employ Employee, to provide him with the above-referenced pay, and a requirement for Employee to become eligible as a participant in the Severance Plan. Employee acknowledges that he has received a\ncopy of the Severance Plan and has had the opportunity to discuss its terms with the Company. Without regard to whether Employee ultimately receives benefits under the Severance Plan, Employee undertakes to fully comply with the\nprovisions hereof and agrees that a breach of these provisions will cause significant financial and other damages to the Company, including loss of strategic advantages, much of which is difficult to quantify by reference solely to money\ndamages.\n2.\nNon-Solicitation.\n(a) During Employee’s employment with the Company and for a period of twelve (12) months thereafter, Employee shall not, for himself or any entity, nor shall Employee assist or provide information to a third party that would assist\nthat third party to: (i) solicit or cause to solicit for the purposes of diverting, taking away or disrupting, or of attempting to divert, take away or disrupt, the Company’s relationship or business with any person or entity who, at any time\nduring the six (6) months preceding such action was or is a client, customer or business partner of the Company, or prospective client, customer or business partner of the Company; (ii) solicit, induce or attempt to induce, any employee or\nindependent contractor of the Company to terminate his employment or engagement with the Company; or (iii) hire, recruit or engage as an employee or independent contractor, or attempt to hire, recruit or engage as an employee or\nindependent contractor, any person who was employed or otherwise engaged by the Company within six (6) months prior to such action. For purposes of this provision, a “prospective client, customer or business partner” shall mean any\nperson or entity (x) with whom the Company has had discussions as of Employee’s termination of employment with the Company, (y) to whom the Company or made a proposal to do business about which the Employee was aware during\nhis employment, or (z) that has executed a non-disclosure agreement with the Company, provided Employee was aware of such fact during this employment with the Company.\n(b) If Employee violates any of the provisions of this Section 2, Employee shall continue to be bound by the restrictions set forth in this Section 2 for an additional period equal to the aggregate period of such violation.\n3.\nNon-Competition.\n(a) Definitions. For purposes of this Agreement, the following terms shall have the following meanings:\n(1) “Restricted Business” is defined as a software or software-related business that competes with the Company. “ Restricted Business” includes, but is not limited to, the following companies: Amazon.com, Inc., CA, Inc. (Computer\nAssociates), Canonical Ltd., Citrix Systems, Inc., EMC Corporation, Google, Inc., Hewlett Packard (HP) Corporation, International Business Machines (IBM) Corporation, Microsoft Corporation, Mirantis, Inc., Oracle Corporation,\nPivotal Software, Inc., salesforce.com, Inc. and VMware, Inc.\n(2) “Restricted Territory” is defined as: Anywhere within the United States where the Company has clients and/or has marketed its products or services at the time Employee leaves employment with the Company.\n(b) Non-compete Period.\n(1) During Employee’s employment with the Company and for a period of twelve (12) months thereafter, within the Restricted Territory, Employee shall not, whether as an owner, director, employee, independent contractor or otherwise,\nprovide to a Restricted Business any services similar to or related to the services Employee performed for or with the Company if they are related to any product or service line that competes with any Company product or service line\nexisting or planned as of Employee’s termination from employment with the Company: (i) about which Employee had access to operational, financial, or strategic information that is confidential (as defined below) while employed with\nthe Company; or (ii) for which Employee was responsible and/or with which Employee was involved; or (iii) about which Employee was privy to confidential, non-public, and/or proprietary information during Employee’s employment\nwith the Company.\n(2) At the request of Employee, following a confidential consultation, the Company will provide its good faith view as to whether a proposed relationship Employee may wish to pursue appears likely to violate this Section. No view by\nthe Company that a violation is unlikely shall prevent the Company from pursuing Employee under this provision if the relationship described by Employee changes, the product or service line at the Restricted Business becomes subject\nto this Section, or the information provided by Employee to the Company was incomplete or incorrect.\n(c) Employee will be treated as an owner of a Restricted Business if he owns an equity interest in the business (except for passive ownership, directly or indirectly, of not more than 1% of the outstanding stock of a publicly-held company\nand of not more than 5% of the outstanding stock of a private company).\n(d) If Employee violates any of the provisions of this Section 3, Employee shall continue to be bound by the restrictions set forth in this Section 3 for an additional period equal to the aggregate period of such violation.\n4.\nConfidential Information.\n(a) Confidential Information. Employee agrees at all times, both during and after the term of his employment with the Company, to hold in the strictest confidence, and not to use (except for the benefit of the Company at the Company’s\ndirection) or disclose (without the written authorization of the General Counsel or other authorized Company officer), regardless of when disclosed to Employee, any and all technical data, trade secrets, know-how or other confidential or\nproprietary information of the Company, including without limitation any and all information related to the products, product plans, technologies, inventions, mask works, ideas,\n2\nprocesses, formulas, source and object codes, computer programs, data bases, other works of authorship, improvements, discoveries, developments, designs and techniques, research, developmental or experimental work, customer and\nbusiness partner lists, employee lists, structure, business plans, sales or marketing plans or results, markets, prices and costs, financial information, or other subject matter pertaining to any business of the Company or any of its licensors,\ncustomers, business partners, consultants or customers (collectively, “Confidential Information”). Employee understands that Confidential Information further includes, but is not limited to, information pertaining to any aspect of the\nCompany’s business which is either information not known (or known as a result of a wrongful act of Employee or of others who were under confidentiality obligations as to the item or items involved) by actual or potential competitors of\nthe Company or other third parties not under confidentiality obligations to the Company, or is otherwise proprietary information of the Company or its customers or suppliers, whether of a technical nature or otherwise. Employee further\nunderstands that Confidential Information does not include any of the foregoing items which is or has become publicly and widely known and made generally available through no wrongful act of Employee or of others who were under\nconfidentiality obligations as to the item or items involved. Furthermore, the following shall not be a violation of this Agreement: (i) disclosure or use of Confidential Information that in good faith is determined to be required or\nappropriate to advance the best interests of the Company in connection with Employee’s work as an employee of the Company and is not inconsistent with any lawful request or direction that Employee may receive from the Company’s\nBoard of Directors (the “Board”) or a committee or other representative of the Board or any authorized Company officer, (ii) disclosure of Confidential Information when required by a court of law, by any governmental agency having\nsupervisory authority over the business of the Company or by any administrative or legislative body (including a committee thereof) with apparent jurisdiction to order Employee to divulge, disclose or make accessible such information;\nprovided, however, that to the extent permitted by law, prior to any such disclosure Employee must notify the Company’s General Counsel of such requirement sufficiently in advance to allow the Company a reasonable opportunity to\ntake any action that it determines appropriate to protect such Confidential Information and Employee agrees to cooperate with the Company in good faith in taking any such action, or (iii) disclosure of Confidential Information to\nEmployee’s spouse, attorney and/or personal tax and financial advisors as reasonably necessary or appropriate to advance Employee’s tax, financial and other personal planning (each an “Exempt Person”); provided, however, that prior\nto any disclosure of Confidential Information to an Exempt Person Employee will inform such Exempt Person of Employee’s obligations hereunder and of their obligation to protect such Confidential Information to the same extent and\nEmployee understands that any disclosure or use of any Confidential Information by an Exempt Person shall be deemed to be a breach of this Section 4 by Employee.\n(b) Former Employer Information. Employee agrees that he does not possess, has not brought, and will not bring to the Company, nor use or disclose in the course of the performance of his duties at the Company, any inventions, technical\ndata, trade secrets, know-how or other confidential or proprietary information of any former employer or third party without the written authorization of such employer or third party. Employee represents that his performance of all terms\nof this Agreement or any other agreement related to his employment with the Company has not breached and will not breach any agreement to keep in confidence the inventions, technical data, trade secrets, know-how or other\nconfidential or proprietary information of any former employer or third party acquired by Employee prior or subsequent to the commencement of his employment with the Company.\n(c) Third Party Information. Employee recognizes that the Company has received and in the future will receive confidential or proprietary information from third parties subject to a duty on the Company’s part to maintain the\nconfidentiality of such information and/or to use it only for certain limited purposes (“Third Party Information”). Employee agrees to hold all such Third Party Information in the strictest confidence and not to disclose it to any person or\nentity (other than Company personnel who need to know such information in connection with their work for the Company) or to use it except as necessary in carrying out Employee’s work for the Company consistent with the Company’s\nagreement with such third party.\n3\n5.\nAssignment of Inventions and Original Works of Authorship\n(a) Inventions and Original Works Assigned to the Company. During the term of Employee’s employment with the Company, Employee will promptly disclose to the Company, will hold in trust for the sole right and benefit of the\nCompany, and does hereby assign to the Company all rights to and interests in inventions, developments, discoveries, techniques, modifications, improvements, technology, trade secrets, computer programs, mask works, know-how,\nprocesses, concepts, methods, systems, specifications, algorithms, designs, formulas, original works of authorship, or any other intellectual property rights whatsoever, whether or not patentable or registrable under copyright, trademark or\nsimilar laws or subject to analogous protection (“Inventions”) that Employee may, during employment with the Company, solely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to\npractice, (a) that relate to the Company’s past, present or demonstrated or reasonably foreseeable future business or research, whether or not developed during normal working hours, or (b) that are developed with the use or aid of any\nCompany equipment, supplies or facilities, or (c) that use or are based on or developed from any Confidential Information of the Company or Third Party Information, or (d) that result from any work, service or duty Employee performs\nwith the Company (collectively, the “Assigned Inventions”). Employee agrees and represents that any Invention that would fall within the definition of Assigned Inventions but for having been conceived or developed or reduced to\npractice, or caused to be conceived or developed or reduced to practice during employment but before the Effective Date shall also be hereby assigned and treated as an Assigned Invention. Any assignment hereunder includes all rights of\npaternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as “moral rights,” “artist’s rights,” “droit moral” or the like. Employee further acknowledges that all Assigned Inventions are “works\nmade for hire” (to the greatest extent permitted by applicable law) and are compensated by his salary\nEmployee agrees not to allow any Invention that was conceived, developed, made or reduced to practice prior to his employment with the Company, belongs solely to Employee or belongs to Employee jointly with another, and relates in\nany way to any of the Company’s proposed businesses and products (a “Prior Invention”) to be incorporated into any product, process, technology or machine of the Company. If in the course of Employee’s employment with the\nCompany, Employee incorporates (or has previously incorporated) into a Company product, process, technology or machine a Prior Invention, the Company is hereby granted and shall have a nonexclusive, royalty-free, irrevocable,\nperpetual, worldwide license (with the right to sublicense) to make, have made, modify, make derivative works of, use, sell, and otherwise distribute or exploit such Prior Invention as art of or in connection with such product, process,\ntechnology or machine. Notwithstanding the foregoing, Employee understands that this Agreement will not be deemed to require assignment of any Invention whose assignment to the Company pursuant to this Agreement would be\nexpressly prohibited by a specifically applicable state law, regulation, rule or public policy of the State of North Carolina or the law of the jurisdiction in which Employee is primarily employed.\n(b) Maintenance of Records. Employee agrees to keep and maintain adequate and current written records of all Assigned Inventions during the term of his employment with the Company, in the format specified by the Company. The\nrecords will be available to and remain the sole property of the Company at all times. Employee agrees not to remove such records from the Company’s place of business except as expressly permitted in writing by an officer of the\nCompany. Employee agrees to provide all such records (including any copies thereof) to the Company at the time of termination of his employment with the Company.\n(c) Enforcement of Intellectual Property Rights. Employee agrees that, whenever requested by the Company, he shall assist the Company or its designee to secure the Company’s, or its designee’s, rights in the Assigned Inventions and\nany copyrights, patents, trademarks, mask work rights, moral rights, or other intellectual property rights relating thereto in any and all countries, including: the disclosure to the Company or its designee of all pertinent information and data\nwith respect thereto; the execution of all applications, specifications, oaths, assignments, recordations, and all other instruments, and the taking of all such other acts (including appearances as a witness), which the Company or its designee\nshall deem necessary in order to apply for, perfect, obtain,\n4\nmaintain, review, restore, enforce, defend and transfer such rights, or if not transferable, waive such rights, and in order to assign and convey to the Company or its designee, and any successors, assigns and nominees thereof such rights;\nand to further evidence, record and perfect the sole and exclusive rights, title and interest in and to such Assigned Inventions, and any copyrights, patents, trademarks, mask work rights, moral rights or other intellectual property rights\nrelating thereto. Employee further agrees that his obligation to execute or cause to be executed, when it is in his power to do so, any such instruments or papers or to take such other acts shall continue after the termination of this\nAgreement until the expiration of the last such intellectual property right to expire in any country of the world. If the Company or its designee is unable because of Employee’s mental or physical incapacity or unavailability or for any\nother reason to secure Employee’s signature to apply for or to pursue any application for any United States or foreign patents, copyright, mask works or other registrations covering Assigned Inventions, then Employee hereby irrevocably\ndesignates and appoints the Company and its duly authorized officers and agents as Employee’s agent and attorney in fact, to act for and in his behalf and stead to execute and file any such applications and any documents and to do all\nother lawfully permitted acts to further the application for, prosecution, issuance, maintenance or transfer of letters patent, copyright or other registrations thereon with the same legal force and effect as if originally executed by Employee.\nEmployee hereby waives and irrevocably quitclaims to the Company or its designee any and all claims, of any nature whatsoever, which Employee now or hereafter has for infringement of any and all proprietary rights assigned to the\nCompany or such designee pursuant to the terms of this Agreement.\n6.\nNon-Disparagement.\nEmployee understands and agrees that, as a condition of his employment by the Company and eligibility to participate in the Severance Plan, he agrees not to make any false, disparaging or derogatory statements to any media outlet,\nindustry group, financial institution or current or former employee, consultant, client or customer of the Company regarding the Company or any of its directors, officers, employees, agents or representatives or about the Company’s\nbusiness affairs or financial condition; provided, however, that nothing herein shall prevent Employee from making truthful disclosures to any governmental entity in response to valid legal process or in any litigation or arbitration.\n7.\nMiscellaneous.\n(a) Other Remedies. The restrictions contained in this Agreement are necessary for the protection of the legitimate business interests of the Company, including the confidential business information and goodwill of the Company and are\nconsidered by Employee to be reasonable for such purpose. If Employee violates the provisions of Sections 2 or 3, Employee agrees that any breach of this Agreement is likely to cause the Company substantial and irrevocable damage\nthat is difficult to measure and that money damages will be insufficient. Therefore, in the event of any such breach or threatened breach, Employee agrees that the Company, in addition to such other remedies that may be available\n(including in this Section 7(a)), shall have the right to obtain an injunction from a court restraining such a breach or threatened breach and the right to specific performance of the provisions of this Agreement, in addition to and cumulative\nwith any other remedy that the Company may have at law or in equity. Employee hereby waives the adequacy of a remedy at law as a defense to any such equitable relief. Employee acknowledges that the Company may cease providing\nany or all benefits under the Severance Plan. Employee acknowledges and agrees that this provision is not a provision for liquidated damages.\n(b) Disclosure of this Agreement. Employee and Company each hereby authorizes the other to notify customers of the Company, any of Employee’s future employers, potential employers or service recipients, and, for a reasonable\nbusiness purpose, others, of the terms and existence of this Agreement and Employee’s continuing obligations to the Company thereunder.\n(c) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective successors and assigns, including any entity with which, or into which, the Company may be merged or that\nmay succeed to the Company’s assets or business; provided, however, that the obligations\n5\nof Employee are personal and shall not be assigned by him. Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary or affiliate thereof to whose employ Employee\nmay be transferred without the necessity that this Agreement be re-signed at the time of such transfer.\n(d) Interpretation. If any restriction set forth in Section 2 or Section 3 is found by any court of competent jurisdiction to be unenforceable for any reason, including, but not limited to, because it extends for too long a period of time or over\ntoo great a range of activities or in too broad a geographic area, it shall be interpreted to apply to the maximum extent possible, such as only over the maximum period of time, range of activities or geographic area as to which it may be\nenforceable.\n(e) Severability. In case any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.\n(f) Survival. This Agreement shall continue in full force and effect following the cessation of Employee’s employment with the Company for any reason.\n(g) Waivers. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right. A waiver or consent given by the Company on any one occasion is effective only in that\ninstance and will not be construed as a bar to or waiver of any right on any other occasion.\n(h) Governing Law. This Agreement has been entered into in the State of North Carolina and will be governed by and construed in accordance with the laws of the North Carolina (without reference to the principles relating to the\nconflicts of laws provisions thereof). Any action, suit, or other legal proceeding that is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of competent\njurisdiction within the State of North Carolina (or, if appropriate, a federal court located within the State of North Carolina), and the Company and Employee each consents to the exclusive jurisdiction of such a court. The Company and\nEmployee each hereby irrevocably waive any right to a trial by jury in any action, suit or other legal proceeding arising under or relating to any provision of this Agreement or to any claim of forum non conveniens.\n(i) Effect on Other Agreements; Amendment. The terms of the Severance Plan and this Agreement supersede all severance provisions of any agreement executed between Employee and the Company including, but not limited to, offer\nletters, individual employment agreements, and any other policy or program of the Company, with the exception of any policy or program of the Company applicable to Employee that provides special cash benefits following a\nchange-in-control (as defined in such policy or program) of the Company. Except to the extent provided in the preceding sentence, this Agreement does not supersede any prior written Agreement between Employee and the Company\nrelating to the subject matter of this Agreement. Such previously executed agreements are not expressly modified hereby and shall remain in full force and effect. This Agreement may not be modified, changed or discharged in whole or in\npart, except by an agreement in writing signed by Employee and the Company. Employee agrees that any change or changes in his duties, salary or compensation after the signing of this Agreement shall not affect the validity or scope of\nthis Agreement.\n(j) Termination Certificate. Employee agrees to execute the Termination Certificate attached as Exhibit A upon termination.\n(k) Captions. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope or substance of any section of this Agreement.\n6\nEMPLOYEE ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS AGREEMENT AND THE SEVERANCE PLAN AND UNDERSTANDS AND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nSignatures on Page Following\n7\nRED HAT, INC.\nBy:\n/s/ DeLisa Alexander\nName:\nDeLisa Alexander\nTitle:\nEVP and Chief People Officer\nDate:\n11/24/2015\nERIC R. SHANDER\n/s/ Eric R. Shander\nDate:\n11/24/2015\nSignature Page for U.S. Employee Agreement (NC) – Eric R. Shander
eb5eb1e0ff77ed33061c4e44b6a2cfc9.pdf	effective_date jurisdiction party term	Exhibit (e)(2)\nConfidential\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement (“Agreement”) is effective as of February 10, 2017 (“Effective Date”), between Kite\nPharma, Inc., a Delaware corporation having a place of business at 2225 Colorado Avenue, Santa Monica, CA 90404 (“Kite”) and\nGilead Sciences, Inc., a Delaware corporation having a place of business at 333 Lakeside Drive, Foster City, CA 94404\n(“Company”). Kite and Company may be referred to herein individually as a “Party” and collectively as the “Parties.”\nThe Parties desire to exchange Confidential Information (as defined below) for the Purpose (as defined below) and desire that their\nrespective Confidential Information be maintained in accordance with this Agreement. Therefore, the Parties agree as follows:\n1. Definitions.\n1.1 “Affiliate” means, with respect to a Party, any person, corporation or other entity that directly or indirectly controls, is\ncontrolled by, or is under common control with such Party. For purposes of this definition, “control” means possession of\nthe power to direct the management of such entity or person, whether through ownership of more than fifty percent (50%)\nof voting securities, by contract or otherwise.\n1.2 “Confidential Information” means any and all information and/or data disclosed to the Receiving Party (as defined below)\nby the Disclosing Party (as defined below) under this Agreement, and may include, without limitation, know-how, data,\ndesigns, plans, specifications, protocols, documents, trade secrets, ideas, concepts, products, processes, prototypes,\nformulas, works-in-progress, systems, technologies, manufacturing or marketing techniques, business or financial\ninformation; provided, however, that Confidential Information shall not include, and neither party shall disclose to the other\nparty, any non-publicly disclosed chemical structures of its compounds or sequence information, including amino acid and\nnucleic acid sequences, of its proteins, molecules or other proprietary substances, unless such disclosure is requested in\nadvance in writing by the Receiving Party and thereafter later agreed to in writing by both parties, in which case such\ndisclosed chemical structures and/or sequence information (as specifically indicated in any such subsequent writing) shall\nbe deemed Confidential Information of the Disclosing Party under this Agreement.\n1.3 “Disclosing Party” means the Party or its Representatives divulging Confidential Information to the Receiving Party (as\ndefined below).\n1.4 “Purpose” means to discuss, evaluate, negotiate and possibly enter into a business transaction involving Kite (and/or any of\nits Affiliates) and the Company (and/or any of its Affiliates).\n1.5 “Receiving Party” means the Party or its Representatives receiving Confidential Information from the Disclosing Party.\n1.6 “Representatives” means, with respect to a Party, such Party’s Affiliates and its (and its Affiliates’) respective officers\n(including directors), trustees, employees, agents, professional advisors, non-employee staff and consultants, including legal\nand financial advisors.\n2. Duties.\n2.1 Restrictions on Use and Disclosure. Each Receiving Party agrees that it shall hold the Disclosing Party’s Confidential\nInformation in secrecy and confidence and shall not disclose any of the Disclosing Party’s Confidential Information to a\nthird party, other than the Receiving Party’s Representatives as permitted by Section 2.2 below, nor use it for any purpose\nother than the Purpose, without the express\n1of5\nConfidential\nwritten consent of the Disclosing Party. Each Receiving Party agrees to use at least the same degree of care to prevent any\nunauthorized access, disclosure or publication of the Confidential Information of the Disclosing Party as the Receiving\nParty uses to protect its own valuable Confidential Information but in no event less than a commercially reasonable degree\nof care.\n2.2 Disclosures to Representatives. The Receiving Party shall only disclose such Confidential Information to those\nRepresentatives who have a need to know such Confidential Information for the Purpose. All Representatives to whom the\nConfidential Information is disclosed shall be subject to legally binding nondisclosure and nonuse restrictions that are at\nleast as restrictive as the terms of this Agreement. Each Party, as a Receiving Party hereto, shall be responsible for the acts\nand omissions of its respective Representatives under this Agreement as if such acts and omissions were performed (or not\nperformed) by the Receiving Party. If an act or omission of a Representative of a Receiving Party would, if committed by\nthe Receiving Party, constitute a breach of this Agreement, such act or omission shall constitute a breach of this Agreement\nby such Receiving Party.\n2.3 Form of Information. Confidential Information may be disclosed orally, visually, or in a tangible or electronic written form.\nConfidential Information may be disclosed directly or indirectly, by Disclosing Party or the Disclosing Party’s\nRepresentatives to the Receiving Party or the Receiving Party’s Representatives.\n2.4 Attorney-Client Privilege. Nothing in this Agreement obligates either Party to reveal material subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege. However, to the extent that any Confidential Information\nmay include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege\nconcerning pending or threatened legal proceedings or governmental investigations, the Parties understand and agree that\nthey have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding\nthat the sharing, whether inadvertent or intentional, of such material is not intended to, and shall not, waive or diminish in\nany way the confidentiality of such material or its continued protection under the attorney-client privilege, work product\ndoctrine or other applicable privilege. All Confidential Information provided by either Party that is entitled to protection\nunder the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such\nprotection under these privileges, this Agreement, and under the joint defense doctrine.\n2.5 Other Information. Neither Company nor Kite shall, without the other party’s consent, disclose to any other person (except\nfor Representatives as permitted by Section 2.1 and 2.2 above) either the existence of this Agreement, the fact that\ninvestigations, discussions or negotiations are or may be taking place concerning a possible transaction or any facts related\nthereto (“Other Information”).\n3. Exceptions and Other Matters.\n3.1 Exceptions. Notwithstanding anything to the contrary in this Agreement, Confidential Information does not include any\ninformation that:\n(a) is known by the Receiving Party prior to the time of its receipt, such prior knowledge being documented by written\nevidence predating the date that such information was disclosed hereunder;\n(b) is at the time of disclosure or thereafter becomes published or otherwise part of the public domain without breach of\nthis Agreement by the Receiving Party;\n(c) is disclosed to the Receiving Party by a third party who is not under an obligation to maintain the confidentiality of the\ninformation; or\n(d) is independently developed by the Receiving Party without any use of or reference to Confidential Information of the\nDisclosing Party, such independent development being documented by contemporaneous written evidence.\n2of5\nConfidential\n3.2 Partial Disclosures; Combinations. Specific aspects or details of Confidential Information shall not be deemed to be within\nthe public domain or in the possession of a Receiving Party merely because the Confidential Information is embraced by\nmore general information in the public domain or in the possession of such party. Further, any combination of individual\nelements of Confidential Information shall be considered Confidential Information and shall not be considered in the public\ndomain or in the possession of a Receiving Party merely because one or more individual elements of such combination are\nin the public domain or in the possession of such Party; rather such combination shall only be considered in the public\ndomain or in the possession of a Receiving Party if the combination of each of the individual elements of the combination is\nin the public domain or in the possession of the Receiving Party.\n3.3 Disclosure Required by Court Order or Government. Notwithstanding anything in this Agreement to the contrary, Receiving\nParty may disclose Confidential Information of the Disclosing Party and Other Information to the extent disclosure is\nrequired by applicable law, rule, regulation, governmental or court order, pursuant to subpoena or other governmental\nauthority, provided that the Receiving Party shall promptly inform the Disclosing Party in writing of such disclosure\nrequirement so that the Disclosing Party may seek a protective order or other appropriate remedy. The Receiving Party shall\nreasonably cooperate with Disclosing Party in connection with the Disclosing Party’s efforts to obtain any such order or\nother remedy. In the event that no such protective order or other remedy is obtained, then the Receiving Party may furnish\nonly that portion of the Confidential Information which the Receiving Party is advised by counsel (including its internal\nlegal counsel) that it is legally required to disclose.\n3.4 No Representation or Warranty By Discloser. The Disclosing Party makes no express or implied representation or warranty\nas to the accuracy, completeness or utility of its Confidential Information. THE RECEIVING PARTY ACKNOWLEDGES\nTHAT THE CONFIDENTIAL INFORMATION OF THE DISCLOSING PARTY IS PROVIDED “AS IS,” WITHOUT\nANY WARRANTY, EXPRESS OR IMPLIED.\n3.5 No License Implied. This Agreement shall not be construed to grant to Receiving Party any license or other rights with\nrespect to the Confidential Information.\n3.6 Ownership; Return/Destruction. All Confidential Information and all materials containing Confidential Information that are\ndelivered to the Receiving Party by the Disclosing Party or the Disclosing Party’s Representatives under this Agreement are\nand remain the sole and exclusive property of the Disclosing Party. Upon written request of the Disclosing Party, the\nReceiving Party shall, at its own cost and expense, promptly destroy or return to the Disclosing Party all such materials (if\nreturned, in the medium provided by Disclosing Party) and destroy all copies of the foregoing or any portion thereof;\nprovided, however, that Receiving Party may retain one copy of the foregoing materials in a secure location for\nrecord-keeping purposes. Neither the Receiving Party nor any of its Representatives shall be required to delete or destroy\nany electronic back-up tapes or other electronic back-up files that have been created solely by their automatic or routine\narchiving and back-up procedures, to the extent created and retained in a manner consistent with its or their standard\narchiving and back-up procedures.\n4. Term and Termination.\n4.1 Term. The term of this Agreement during which Confidential Information may be disclosed by one Party to the other Party\nshall begin on the Effective Date and end five (5) years after the Effective Date, unless extended by mutual agreement.\n4.2 Survival. The Receiving Party’s obligations with respect to Confidential Information under Section 2 shall survive\ntermination or expiration of this Agreement, and shall expire seven (7) years from the Effective Date.\n3of5\nConfidential\n5. Miscellaneous.\n5.1 No Future Obligations. Nothing in this Agreement shall be deemed to create any obligation on the part of either Party to\ncontinue discussions or to enter into a further agreement. Either party may terminate discussions or negotiations at any time\n5.2 Assignment. Neither this Agreement nor the obligations hereunder may be assigned or otherwise transferred by a Party\nwithout written consent of the other Party, except in connection with the sale of all or substantially all of a Party’s assets,\nequity or business or a merger, reorganization or consolidation involving at least fifty percent (50%) or more of the voting\nequity securities of the Party. This Agreement shall be binding upon the parties, their successors and their permitted assigns.\n5.3 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California\nwithout reference to its rules of conflicts of laws.\n5.4 Transfer Restrictions Under Export Control Laws. Each Party agrees that it and its Representatives shall comply with any\napplicable export control laws, rules and regulations relating to the export of technical information, materials or products in\nconnection with any disclosure of Confidential Information under this Agreement.\n5.5 Notices. Each notice required or permitted hereunder shall be in writing and sufficient if delivered personally, sent by a\nnationally-recognized overnight courier or sent by registered or certified mail, postage prepaid, return receipt requested, to\nthe Parties at the addresses indicated in the introductory paragraph of this Agreement, to the attention of the signatories\nbelow, with a copy, in the case of Company, to the General Counsel. Either Party may change its address by giving the\nother Party written notice, delivered in accordance with this Section 5.5 .\n5.6 Waivers and Amendments; Preservation of Remedies. This Agreement may be amended, or the terms and conditions may\nbe waived, only by a written agreement signed by both Parties. No delay on the part of any Party in exercising any right\nhereunder shall operate as a waiver, nor shall any partial exercise of any right hereunder preclude any other exercise thereof.\nThe rights and remedies herein are cumulative and are not exclusive of any rights or remedies which any Party may\notherwise have at law or in equity.\n5.7 Injunctive Relief. The Parties acknowledge that a breach of this Agreement may result in irreparable harm and damages to a\nParty in an amount difficult to ascertain and which cannot be adequately compensated by a monetary award. Accordingly,\nin addition to any of the relief to which any Party may be entitled under this Agreement, at law or in equity, such Party shall\nbe entitled to seek temporary and permanent injunctive relief from any breach or threatened breach without the requirement\nof the Party bringing such action to post any bond or other security with the court in connection therewith.\n5.8 Entire Agreement; Severability. This Agreement constitutes the entire understanding of the Parties with respect to the\nsubject matter hereof and any express or implied agreements, either oral or written, are superseded by the terms of this\nAgreement. If any one or more provisions of this Agreement is held invalid, illegal or unenforceable in any respect by a\ncourt having competent jurisdiction, the validity, legality and enforceability of this Agreement and the remaining provisions\ncontained herein shall not in any way be affected or impaired thereby.\n5.9 Counterparts. This Agreement may be executed in counterparts, each of which shall be an original as against either Party\nwhose signature appears thereon, but all of which taken together shall constitute but one and the same instrument. An\nexecuted facsimile or electronic scanned copy of this Agreement shall have the same force and effect as an original.\n4of5\nConfidential\nKITE PHARMA, INC.\nGILEAD SCIENCES, INC.\nBy:\n/s/ Veer Bhavnagri\nBy: /s/ Elizabeth P. Bhatt\nName:\nVeer Bhavnagri\nName:\nElizabeth Bhatt\nTitle:\nVP Corporate Counsel\nTitle:\nVice President, Corporate\nDevelopment\nDate:\nFebruary 10, 2017\nDate:February 15, 2017\n5of5	Exhibit (e)(2)\nConfidential\nMUTUAL CONFIDENTIALITY AG REEMENT\nThis Mutual Confidentiality A greement (”A greement”) is effective as of February 10, 2017 (”Effective Date"), between Kite Pharma, Inc., a Delaware corporation having a place of business at 2225 Colorado Avenue, Santa Monica, CA 90404 (”Kite”) and Gilead Sciences, Inc., a Delaware corporation having a place of business at 333 Lakeside Drive, Foster City, CA 94404 (”Company”). Kite and Company may be referred to herein individually as a ”Party" and collectively as the ”Parties.” The Parties desire to exchange Confidential Information (as defined below) for the Purpose (as defined below) and desire that their respective Confidential Information be maintained in accordance with this Agreement. Therefore, the Parties agree as follows: 1. Definitions. 1.1\n1.2\n1.3\n1.4\n1.5\n1.6\n”A ffiliate” means, with respect to a Party, any person, corporation or other entity that directly or indirectly controls, is\ncontrolled by, or is under common control with such Party. For purposes of this definition, ”control” means possession of\nthe power to direct the management of such entity or person, whether through ownership of more than fifty percent (50%)\nof voting securities, by contract or otherwise.\n”Confidential Information” means any and all information and/or data disclosed to the Receiving Party (as defined below)\nby the Disclosing Party (as defined below) under this Agreement, and may include, without limitation, know-how, data,\ndesigns, plans, specifications, protocols, documents, trade secrets, ideas, concepts, products, processes, prototypes,\nformulas, works-in-progress, systems, technologies, manufacturing or marketing techniques, business or financial\ninformation; provided, however, that Confidential Information shall not include, and neither party shall disclose to the other\nparty, any non-publicly disclosed chemical structures of its compounds or sequence information, including amino acid and\nnucleic acid sequences, of its proteins, molecules or other proprietary substances, unless such disclosure is requested in\nadvance in writing by the Receiving Party and thereafter later agreed to in writing by both parties, in which case such\ndisclosed chemical structures and/or sequence information (as specifically indicated in any such subsequent writing) shall\nbe deemed Confidential Information of the Disclosing Party under this Agreement.\n”Disclosing Party" means the Party or its Representatives divulging Confidential Information to the Receiving Party (as\ndefined below).\n”Purpose" means to discuss, evaluate, negotiate and possibly enter into a business transaction involving Kite (and/or any of\nits Affiliates) and the Company (and/or any of its Affiliates).\n”Receiving Party" means the Party or its Representatives receiving Confidential Information from the Disclosing Party.\n”Representatives" means, with respect to a Party, such Party's Affiliates and its (and its Affiliates’) respective officers\n(including directors), trustees, employees, agents, professional advisors, non- employee staff and consultants, including legal\nand financial advisors.\n2. Duties. 2.1\nRestrictions on Use and Disclosure. Each Receiving Party agrees that it shall hold the Disclosing Party’ s Confidential\nInformation in secrecy and confidence and shall not disclose any of the Disclosing Party’ s Confidential Information to a\nthird party, other than the Receiving Party’ s Representatives as permitted by Section 2.2 below, nor use it for any purpose\nother than the Purpose, without the express\n1of5\n \nConfidential\nwritten consent of the Disclosing Party. Each Receiving Party agrees to use at least the same degree of care to prevent any\nunauthorized access, disclosure or publication of the Confidential Information of the Disclosing Party as the Receiving\nParty uses to protect its own valuable Confidential Information but in no event less than a commercially reasonable degree\nof care.\n2.2 Disclosures to Representatives. The Receiving Party shall only disclose such Confidential Information to those\nRepresentatives who have a need to know such Confidential Information for the Purpose. All Representatives to whom the\nConfidential Information is disclosed shall be subject to legally binding nondisclosure and nonuse restrictions that are at\nleast as restrictive as the terms of this Agreement. Each Party, as a Receiving Party hereto, shall be responsible for the acts\nand omissions of its respective Representatives under this Agreement as if such acts and omissions were performed (or not\nperformed) by the Receiving Party. If an act or omission of a Representative of a Receiving Party would, if committed by\nthe Receiving Party, constitute a breach of this Agreement, such act or omission shall constitute a breach of this A greement\nby such Receiving Party.\n2.3 Form of Information. Confidential Information may be disclosed orally, visually, or in a tangible or electronic written form.\nConfidential Information may be disclosed directly or indirectly, by Disclosing Party or the Disclosing Party's\nRepresentatives to the Receiving Party or the Receiving Party’ s Representatives.\n2.4 Attorney-Client Privilege. Nothing in this Agreement obligates either Party to reveal material subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege. However, to the extent that any Confidential Information\nmay include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege\nconcerning pending or threatened legal proceedings or governmental investigations, the Parties understand and agree that\nthey have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding\nthat the sharing, whether inadvertent or intentional, of such material is not intended to, and shall not, waive or diminish in\nany way the confidentiality of such material or its continued protection under the attorney-client privilege, work product\ndoctrine or other applicable privilege. All Confidential Information provided by either Party that is entitled to protection\nunder the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such\nprotection under these privileges, this A greement, and under the joint defense doctrine.\n2.5 Other Information. Neither Company nor Kite shall, without the other party’ s consent, disclose to any other person (except\nfor Representatives as permitted by Section 2.1 and 2.2 above) either the existence of this Agreement, the fact that\ninvestigations, discussions or negotiations are or may be taking place concerning a possible transaction or any facts related\nthereto (”Other Information”).\n3. Exceptions and Other Matters.\n3.1 Exceptions. Notwithstanding anything to the contrary in this Agreement, Confidential Information does not include any\ninformation that:\n(a) is known by the Receiving Party prior to the time of its receipt, such prior knowledge being documented by written\nevidence predating the date that such information was disclosed hereunder;\n(b) is at the time of disclosure or thereafter becomes published or otherwise part of the public domain without breach of\nthis Agreement by the Receiving Party;\n(c) is disclosed to the Receiving Party by a third party who is not under an obligation to maintain the confidentiality of the\ninformation; or\n(d) is independently developed by the Receiving Party without any use of or reference to Confidential Information of the\nDisclosing Party, such independent development being documented by contemporaneous written evidence.\n2of5\n \nConfidential\n3.2 Partial Disclosures; Combinations. Specific aspects or details of Confidential Information shall not be deemed to be within\nthe public domain or in the possession of a Receiving Party merely because the Confidential Information is embraced by\nmore general information in the public domain or in the possession of such party. Further, any combination of individual\nelements of Confidential Information shall be considered Confidential Information and shall not be considered in the public\ndomain or in the possession of a Receiving Party merely because one or more individual elements of such combination are\nin the public domain or in the possession of such Party; rather such combination shall only be considered in the public\ndomain or in the possession of a Receiving Party if the combination of each of the individual elements of the combination is\nin the public domain or in the possession of the Receiving Party.\n3.3 Disclosure Required by Court Order or Government. Notwithstanding anything in this Agreement to the contrary, Receiving\nParty may disclose Confidential Information of the Disclosing Party and Other Information to the extent disclosure is\nrequired by applicable law, rule, regulation, governmental or court order, pursuant to subpoena or other governmental\nauthority, provided that the Receiving Party shall promptly inform the Disclosing Party in writing of such disclosure\nrequirement so that the Disclosing Party may seek a protective order or other appropriate remedy. The Receiving Party shall\nreasonably cooperate with Disclosing Party in connection with the Disclosing Party's efforts to obtain any such order or\nother remedy. In the event that no such protective order or other remedy is obtained, then the Receiving Party may furnish\nonly that portion of the Confidential Information which the Receiving Party is advised by counsel (including its internal\nlegal counsel) that it is legally required to disclose.\n3.4 No Representation or Warranty By Discloser. The Disclosing Party makes no express or implied representation or warranty\nas to the accuracy, completeness or utility of its Confidential Information. THE RECEIVING PARTY ACKNOWLEDGES\nTHAT THE CONFIDENTIAL INFORMATION OF THE DISCLOSING PARTY IS PROVIDED ”AS IS,” WITHOUT\nANY WARRANTY, EXPRESS OR IMPLIED.\n3.5 No License Implied. This Agreement shall not be construed to grant to Receiving Party any license or other rights with\nrespect to the Confidential Information.\n3.6 Ownership; Return/D estruction. All Confidential Information and all materials containing Confidential Information that are\ndelivered to the Receiving Party by the Disclosing Party or the Disclosing Party’ s Representatives under this A greement are\nand remain the sole and exclusive property of the Disclosing Party. Upon written request of the Disclosing Party, the\nReceiving Party shall, at its own cost and expense, promptly destroy or return to the Disclosing Party all such materials (if\nreturned, in the medium provided by Disclosing Party) and destroy all copies of the foregoing or any portion thereof;\nprovided, however, that Receiving Party may retain one copy of the foregoing materials in a secure location for\nrecord-keeping purposes. Neither the Receiving Party nor any of its Representatives shall be required to delete or destroy\nany electronic back-up tapes or other electronic back-up files that have been created solely by their automatic or routine\narchiving and back-up procedures, to the extent created and retained in a manner consistent with its or their standard\narchiving and back-up procedures.\n4. Term and Termination.\n4.1 Term. The term of this Agreement during which Confidential Information may be disclosed by one Party to the other Party\nshall begin on the Effective Date and end five (5) years after the Effective Date, unless extended by mutual agreement.\n4.2 Survival. The Receiving Party’ s obligations with respect to Confidential Information under Section 2 shall survive\ntermination or expiration of this Agreement, and shall expire seven (7) years from the Effective Date.\n3of5\n \nConfidential\nMiscellaneous. 5.1\n5.2\n5.3\n5.4\n5.5\n5.6\n5.7\n5.8\n5.9\nNo Future Obligations. Nothing in this Agreement shall be deemed to create any obligation on the part of either Party to\ncontinue discussions or to enter into a further agreement. Either party may terminate discussions or negotiations at any time\nA ssignment. Neither this A greement nor the obligations hereunder may be assigned or otherwise transferred by a Party\nwithout written consent of the other Party, except in connection with the sale of all or substantially all of a Party’ s assets,\nequity or business or a merger, reorganization or consolidation involving at least fifty percent (50%) or more of the voting\nequity securities of the Party. This Agreement shall be binding upon the parties, their successors and their permitted assigns.\nApplicable Law. This A greement shall be governed by and construed in accordance with the laws of the State of California\nwithout reference to its rules of conflicts of laws.\nTransfer Restrictions Under Export Control Laws. Each Party agrees that it and its Representatives shall comply with any\napplicable export control laws, rules and regulations relating to the export of technical information, materials or products in\nconnection with any disclosure of Confidential lnforrnation under this Agreement.\nNotices. Each notice required or permitted hereunder shall be in writing and sufficient if delivered personally, sent by a\nnationally-recognized overnight courier or sent by registered or certified mail, postage prepaid, return receipt requested, to\nthe Parties at the addresses indicated in the introductory paragraph of this A greement, to the attention of the signatories\nbelow, with a copy, in the case of Company, to the General Counsel. Either Party may change its address by giving the\nother Party written notice, delivered in accordance with this Section 5.5.\nWaivers and Amendments; Preservation of Remedies. This Agreement may be amended, or the terms and conditions may\nbe waived, only by a written agreement signed by both Parties. No delay on the part of any Party in exercising any right\nhereunder shall operate as a waiver, nor shall any partial exercise of any right hereunder preclude any other exercise thereof.\nThe rights and remedies herein are cumulative and are not exclusive of any rights or remedies which any Party may\notherwise have at law or in equity.\nlnjunctive Relief. The Parties acknowledge that a breach of this Agreement may result in irreparable harm and damages to a\nParty in an amount difficult to ascertain and which cannot be adequately compensated by a monetary award. Accordingly,\nin addition to any of the relief to which any Party may be entitled under this Agreement, at law or in equity, such Party shall\nbe entitled to seek temporary and permanent injunctive relief from any breach or threatened breach without the requirement\nof the Party bringing such action to post any bond or other security with the court in connection therewith.\nEntire Agreement; Severabilifl. This Agreement constitutes the entire understanding of the Parties with respect to the\nsubject matter hereof and any express or implied agreements, either oral or written, are superseded by the terms of this\nAgreement. If any one or more provisions of this Agreement is held invalid, illegal or unenforceable in any respect by a\ncourt having competent jurisdiction, the validity, legality and enforceability of this A greement and the remaining provisions\ncontained herein shall not in any way be affected or impaired thereby.\nCounterparts. This A greement may be executed in counterparts, each of which shall be an original as against either Party\nwhose signature appears thereon, but all of which taken together shall constitute but one and the same instrument. An\nexecuted facsimile or electronic scanned copy of this Agreement shall have the same force and effect as an original.\n4of5\n \nKITE PHARMA, INC.\nBy:\nName:\nTitle:\nDate:\n/s/ V eer Bhavnagri\nW\nVP Corporate Counsel\nFebruary 10, 2017\n50f5\nConfidential\nGILEAD SCIENCES, INC.\nBy: /s/ Elizabeth P. Bhatt\nMW\nVice President, Corporate\nTitleiD eveloprnent\nDat§ebruary 15, 2017	Exhibit (e)(2)\nConfidential\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality A greement Agreement") is effective as of February 10, 2017 ("Effective Date"), between Kite\nPharma, Inc., a Delaware corporation having a place of business at 2225 Colorado Avenue, Santa Monica, CA 90404 ("Kite") and\nGilead Sciences, Inc., a Delaware corporation having a place of business at 333 Lakeside Drive, Foster City, CA 94404\n("Company"). Kite and Company may be referred to herein individually as a "Party" and collectively as the "Parties."\nThe Parties desire to exchange Confidential Information (as defined below) for the Purpose (as defined below) and desire that their\nrespective Confidential Information be maintained in accordance with this A greement. Therefore, the Parties agree as follows:\n1. Definitions.\n1.1 "Affiliate" means, with respect to a Party, any person, corporation or other entity that directly or indirectly controls, is\ncontrolled by, or is under common control with such Party. For purposes of this definition, "control" means possession of\nthe power to direct the management of such entity or person, whether through ownership of more than fifty percent (50%)\nof voting securities, by contract or otherwise.\n1.2 "Confidential Information" means any and all information and/or data disclosed to the Receiving Party (as defined below)\nby the Disclosing Party (as defined below) under this A greement, and may include, without limitation, know-how, data,\ndesigns, plans, specifications, protocols, documents, trade secrets, ideas, concepts, products, processes prototypes,\nformulas, works-in-progress, systems, technologies, manufacturing or marketing techniques, business or financial\ninformation; provided, however, that Confidential Information shall not include, and neither party shall disclose to the other\nparty, any non-publicly disclosed chemical structures of its compounds or sequence information, including amino acid and\nnucleic acid sequences, of its proteins, molecules or other proprietary substances, unless such disclosure is requested in\nadvance in writing by the Receiving Party and thereafter later agreed to in writing by both parties, in which case such\ndisclosed chemical structures and/or sequence information (as specifically indicated in any such subsequent writing) shall\nbe deemed Confidential Information of the Disclosing Party under this greement.\n1.3\n"Disclosing Party" means the Party or its Representatives divulging Confidential Information to the Receiving Party (as\ndefined below).\n1.4 "Purpose" means to discuss, evaluate, negotiate and possibly enter into a business transaction involving Kite (and/or any of\nits Affiliates) and the Company (and/or any of its Affiliates).\n1.5 "Receiving Party" means the Party or its Representatives receiving Confidential Information from the Disclosing Party.\n1.6 "Representatives" means, with respect to a Party, such Party's Affiliates and its (and its Affiliates') respective officers\n(including directors), trustees, employees, agents, professional advisors, non-employee staff and consultants, including legal\nand financial advisors.\n2. Duties.\n2.1 Restrictions on Use and Disclosure Each Receiving Party agrees that it shall hold the Disclosing Party's Confidential\nInformation in secrecy and confidence and shall not disclose any of the Disclosing Party's Confidential Information to a\nthird party, other than the Receiving Party's Representatives as permitted by Section 2.2 below, nor use it for any purpose\nother than the Purpose, without the express\n1 of 5\nConfidential\nwritten consent of the Disclosing Party. Each Receiving Party agrees to use at least the same degree of care to prevent any\nunauthorized access, disclosure or publication of the Confidential Information of the Disclosing Party as the Receiving\nParty uses to protect its own valuable Confidential Information but in no event less than a commercially reasonable degree\nof care.\n2.2 Disclosures to Representatives The Receiving Party shall only disclose such Confidential Information to those\nRepresentatives who have a need to know such Confidential Information for the Purpose. All Representatives to whom the\nConfidential Information is disclosed shall be subject to legally binding nondisclosure and nonuse restrictions that are at\nleast as restrictive as the terms of this A greement. Each Party, as a Receiving Party hereto, shall be responsible for the acts\nand omissions of its respective Representatives under this A greement as if such acts and omissions were performed (or not\nperformed) by the Receiving Party. If an act or omission of a Representative of a Receiving Party would, if committed by\nthe Receiving Party, constitute a breach of this greement, such act or omission shall constitute a breach of this A greement\nby such Receiving Party.\n2.3 Form of Information. Confidential Information may be disclosed orally, visually, or in a tangible or electronic written form.\nConfidential Information may be disclosed directly or indirectly, by Disclosing Party or the Disclosing Party's\nRepresentatives to the Receiving Party or the Receiving Party's Representatives.\n2.4 A ttorney-Client Privilege Nothing in this A greement obligates either Party to reveal material subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege. However, to the extent that any Confidential Information\nmay include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege\nconcerning pending or threatened legal proceedings or governmental investigations, the Parties understand and agree that\nthey have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding\nthat the sharing, whether inadvertent or intentional, of such material is not intended to, and shall not, waive or diminish in\nany way the confidentiality of such material or its continued protection under the attorney-client privilege, work product\ndoctrine or other applicable privilege. All Confidential Information provided by either Party that is entitled to protection\nunder the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such\nprotection under these privileges, this A greement, and under the joint defense doctrine.\n2.5 Other Information Neither Company nor Kite shall, without the other party's consent, disclose to any other person (except\nfor Representatives as permitted by Section 2.1 and 2.2 above) either the existence of this A greement, the fact that\ninvestigations, discussions or negotiations are or may be taking place concerning a possible transaction or any facts related\nthereto ("Other Information").\n3.\nExceptions and Other Matters.\n3.1 Exceptions. Notwithstanding anything to the contrary in this Agreement, Confidentia Information does not include any\ninformation that:\n(a) is known by the Receiving Party prior to the time of its receipt, such prior knowledge being documented by written\nevidence predating the date that such information was disclosed hereunder;\n(b)\nis at the time of disclosure or thereafter becomes published or otherwise part of the public domain without breach of\nthis A greement by the Receiving Party;\n(c)\nis disclosed to the Receiving Party by a third party who is not under an obligation to maintain the confidentiality of the\ninformation; or\n(d)\nis independently developed by the Receiving Party without any use of or reference to Confidential Information of the\nDisclosing Party, such independent development being documented by contemporaneous written evidence.\n2 of 5\nConfidential\n3.2 Partial Disclosures; Combinations. Specific aspects or details of Confidential Information shall not be deemed to be within\nthe public domain or in the possession of a Receiving Party merely because the Confidential Information is embraced by\nmore general information in the public domain or in the possession of such party Further, any combination of individual\nelements of Confidential Information shall be considered Confidential Information and shall not be considered in the public\ndomain or in the possession of a Receiving Party merely because one or more individual elements of such combination are\nin the public domain or in the possession of such Party; rather such combination shall only be considered in the public\ndomain or in the possession of a Receiving Party if the combination of each of the individual elements of the combination is\nin the public domain or in the possession of the Receiving Party.\n3.3 Disclosure Required by Court Order or Government. Notwithstanding anything in this A greement to the contrary, Receiving\nParty may disclose Confidential Information of the Disclosing Party and Other Information to the extent disclosure is\nrequired by applicable law, rule, regulation, governmental or court order, pursuant to subpoena or other governmental\nauthority, provided that the Receiving Party shall promptly inform the Disclosing Party in writing of such disclosure\nrequirement so that the Disclosing Party may seek a protective order or other appropriate remedy. The Receiving Party shall\nreasonably cooperate with Disclosing Party in connection with the Disclosing Party's efforts to obtain any such order or\nother remedy. In the event that no such protective order or other remedy is obtained, then the Receiving Party may furnish\nonly that portion of the Confidentia Information which the Receiving Party is advised by counsel (including its internal\nlegal counsel) that it is legally required to disclose.\n3.4 No Representation or Warranty By Discloser. The Disclosing Party makes no express or implied representation or warranty\nas to the accuracy, completeness or utility of its Confidentia Information THE RECEIVING PARTY ACKNOWLEDGES\nTHAT THE CONFIDENTIAL INFORMATION OF THE DISCLOSING PARTY IS PROVIDED "AS WITHOUT\nANY WARRANTY XPRESS OR IMPLIED.\n3.5 No License Implied. This Agreement shall not be construed to grant to Receiving Party any license or other rights with\nrespect to the Confidential Information.\n3.6 Ownership; Return/Destruction. All Confidential Information and all materials containing Confidential Information that are\ndelivered to the Receiving Party by the Disclosing Party or the Disclosing Party's Representatives under this A greement are\nand remain the sole and exclusive property of the Disclosing Party. Upon written request of the Disclosing Party, the\nReceiving Party shall, at its own cost and expense, promptly destroy or return to the Disclosing Party all such materials (if\nreturned, in the medium provided by Disclosing Party) and destroy all copies of the foregoing or any portion thereof;\nprovided, however, that Receiving Party may retain one copy of the foregoing materials in a secure location for\nrecord-keeping purposes. Neither the Receiving Party nor any of its Representatives shall be required to delete or destroy\nany electronic back-up tapes or other electronic back-up files that have been created solely by their automatic or routine\narchiving and back-up procedures, to the extent created and retained in a manner consistent with its or their standard\narchiving and back-up procedures.\n4.\nTerm and Termination.\n4.1 Term. The term of this A greement during which Confidential Information may be disclosed by one Party to the other Party\nshall begin on the Effective Date and end five (5) years after the Effective Date, unless extended by mutual agreement.\n4.2 Survival The Receiving Party's obligations with respect to Confidential Information under Section 2 shall survive\ntermination or expiration of this greement, and shall expire seven (7) years from the Effective Date.\n3 of 5\nConfidential\n5. Miscellaneous.\n5.1 NO Future Obligations Nothing in this A greement shall be deemed to create any obligation on the part of either Party to\ncontinue discussions or to enter into a further agreement. Either party may terminate discussions or negotiations at any time\n5.2 ssignment. Neither this A greement nor the obligations hereunder may be assigned or otherwise transferred by a Party\nwithout written consent of the other Party, except in connection with the sale of all or substantially all of a Party' assets,\nequity or business or a merger, reorganization or consolidation involving at least fifty percent (50%) or more of the voting\nequity securities of the Party. This A greement shall be binding upon the parties, their successors and their permitted assigns.\n5.3 A pplicable Law. This A greement shall be governed by and construed in accordance with the laws of the State of California\nwithout reference to its rules of conflicts of laws.\n5.4 Transfer Restrictions Under Export Control Laws. Each Party agrees that it and its Representatives shall comply with any\napplicable export control laws, rules and regulations relating to the export of technical information, materials or products in\nconnection with any disclosure of Confidential Information under this Agreement.\n5.5 Notices. Each notice required or permitted hereunder shall be in writing and sufficient if delivered personally, sent by a\nnationally-recognized overnight courier or sent by registered or certified mail, postage prepaid, return receipt requested, to\nthe Parties at the addresses indicated in the introductory paragraph of this A greement, to the attention of the signatories\nbelow, with a copy, in the case of Company, to the General Counsel. Either Party may change its address by giving the\nother Party written notice, delivered in accordance with this Section 5.5.\n5.6 Waivers and A mendments; Preservation of Remedies. This A greement may be amended, or the terms and conditions may\nbe waived, only by a written agreement signed by both Parties. No delay on the part of any Party in exercising any right\nhereunder shall operate as a waiver, nor shall any partial exercise of any right hereunder preclude any other exercise thereof.\nThe rights and remedies herein are cumulative and are not exclusive of any rights or remedies which any Party may\notherwise have at law or in equity.\n5.7 Injunctive Relief The Parties acknowledge that a breach of this A greement may result in irreparable harm and damages to a\nParty in an amount difficult to ascertain and which cannot be adequately compensated by a monetary award. A ccordingly,\nin addition to any of the relief to which any Party may be entitled under this greement, at law or in equity, such Party shall\nbe entitled to seek temporary and permanent injunctive relief from any breach or threatened breach without the requirement\nof the Party bringing such action to post any bond or other security with the court in connection therewith.\n5.8 Entire A greement; Severability. This A greement constitutes the entire understanding of the Parties with respect to the\nsubject matter hereof and any express or implied agreements, either oral or written, are superseded by the terms of this\nA greement. If any one or more provisions of this A greement is held invalid, illegal or unenforceable in any respect by a\ncourt having competent jurisdiction, the validity, legality and enforceability of this A greement and the remaining provisions\ncontained herein shall not in any way be affected or impaired thereby.\n5.9 Counterparts. This A greement may be executed in counterparts, each of which shall be an original as against either Party\nwhose signature appears thereon, but all of which taken together shall constitute but one and the same instrument. An\nexecuted facsimile or electronic scanned copy of this A greement shall have the same force and effect as an original.\n4 of 5\nConfidential\nKITE PHARMA, INC.\nGILEAD SCIENCES, INC.\nBy:\n/s/ Veer Bhavnagri\nBy: /s/ Elizabeth P. Bhatt\nName:\nVeer Bhavnagr\nNamlelizabeth Bhatt\nVice President, Corporate\nTitle:\nVP Corporate Counsel\nTitleD eDevelopment\nDate:\nFebruary 10, 2017\nDateFebruary 15, 2017\n5 of 5	Exhibit (e)(2)\nConfidential\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement (“Agreement”) is effective as of February 10, 2017 (“Effective Date”), between Kite\nPharma, Inc., a Delaware corporation having a place of business at 2225 Colorado Avenue, Santa Monica, CA 90404 (“Kite”) and\nGilead Sciences, Inc., a Delaware corporation having a place of business at 333 Lakeside Drive, Foster City, CA 94404\n(“Company”). Kite and Company may be referred to herein individually as a “Party” and collectively as the “Parties.”\nThe Parties desire to exchange Confidential Information (as defined below) for the Purpose (as defined below) and desire that their\nrespective Confidential Information be maintained in accordance with this Agreement. Therefore, the Parties agree as follows:\n1. Definitions.\n1.1 “Affiliate” means, with respect to a Party, any person, corporation or other entity that directly or indirectly controls, is\ncontrolled by, or is under common control with such Party. For purposes of this definition, “control” means possession of\nthe power to direct the management of such entity or person, whether through ownership of more than fifty percent (50%)\nof voting securities, by contract or otherwise.\n1.2 “Confidential Information” means any and all information and/or data disclosed to the Receiving Party (as defined below)\nby the Disclosing Party (as defined below) under this Agreement, and may include, without limitation, know-how, data,\ndesigns, plans, specifications, protocols, documents, trade secrets, ideas, concepts, products, processes, prototypes,\nformulas, works-in-progress, systems, technologies, manufacturing or marketing techniques, business or financial\ninformation; provided, however, that Confidential Information shall not include, and neither party shall disclose to the other\nparty, any non-publicly disclosed chemical structures of its compounds or sequence information, including amino acid and\nnucleic acid sequences, of its proteins, molecules or other proprietary substances, unless such disclosure is requested in\nadvance in writing by the Receiving Party and thereafter later agreed to in writing by both parties, in which case such\ndisclosed chemical structures and/or sequence information (as specifically indicated in any such subsequent writing) shall\nbe deemed Confidential Information of the Disclosing Party under this Agreement.\n1.3 “Disclosing Party” means the Party or its Representatives divulging Confidential Information to the Receiving Party (as\ndefined below).\n1.4 “Purpose” means to discuss, evaluate, negotiate and possibly enter into a business transaction involving Kite (and/or any of\nits Affiliates) and the Company (and/or any of its Affiliates).\n1.5 “Receiving Party” means the Party or its Representatives receiving Confidential Information from the Disclosing Party.\n1.6 “Representatives” means, with respect to a Party, such Party’s Affiliates and its (and its Affiliates’) respective officers\n(including directors), trustees, employees, agents, professional advisors, non-employee staff and consultants, including legal\nand financial advisors.\n2. Duties.\n2.1 Restrictions on Use and Disclosure. Each Receiving Party agrees that it shall hold the Disclosing Party’s Confidential\nInformation in secrecy and confidence and shall not disclose any of the Disclosing Party’s Confidential Information to a\nthird party, other than the Receiving Party’s Representatives as permitted by Section 2.2 below, nor use it for any purpose\nother than the Purpose, without the express\n1of5\nConfidential\nwritten consent of the Disclosing Party. Each Receiving Party agrees to use at least the same degree of care to prevent any\nunauthorized access, disclosure or publication of the Confidential Information of the Disclosing Party as the Receiving\nParty uses to protect its own valuable Confidential Information but in no event less than a commercially reasonable degree\nof care.\n2.2 Disclosures to Representatives. The Receiving Party shall only disclose such Confidential Information to those\nRepresentatives who have a need to know such Confidential Information for the Purpose. All Representatives to whom the\nConfidential Information is disclosed shall be subject to legally binding nondisclosure and nonuse restrictions that are at\nleast as restrictive as the terms of this Agreement. Each Party, as a Receiving Party hereto, shall be responsible for the acts\nand omissions of its respective Representatives under this Agreement as if such acts and omissions were performed (or not\nperformed) by the Receiving Party. If an act or omission of a Representative of a Receiving Party would, if committed by\nthe Receiving Party, constitute a breach of this Agreement, such act or omission shall constitute a breach of this Agreement\nby such Receiving Party.\n2.3 Form of Information. Confidential Information may be disclosed orally, visually, or in a tangible or electronic written form.\nConfidential Information may be disclosed directly or indirectly, by Disclosing Party or the Disclosing Party’s\nRepresentatives to the Receiving Party or the Receiving Party’s Representatives.\n2.4 Attorney-Client Privilege. Nothing in this Agreement obligates either Party to reveal material subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege. However, to the extent that any Confidential Information\nmay include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege\nconcerning pending or threatened legal proceedings or governmental investigations, the Parties understand and agree that\nthey have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding\nthat the sharing, whether inadvertent or intentional, of such material is not intended to, and shall not, waive or diminish in\nany way the confidentiality of such material or its continued protection under the attorney-client privilege, work product\ndoctrine or other applicable privilege. All Confidential Information provided by either Party that is entitled to protection\nunder the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such\nprotection under these privileges, this Agreement, and under the joint defense doctrine.\n2.5 Other Information. Neither Company nor Kite shall, without the other party’s consent, disclose to any other person (except\nfor Representatives as permitted by Section 2.1 and 2.2 above) either the existence of this Agreement, the fact that\ninvestigations, discussions or negotiations are or may be taking place concerning a possible transaction or any facts related\nthereto (“Other Information”).\n3. Exceptions and Other Matters.\n3.1 Exceptions. Notwithstanding anything to the contrary in this Agreement, Confidential Information does not include any\ninformation that:\n(a) is known by the Receiving Party prior to the time of its receipt, such prior knowledge being documented by written\nevidence predating the date that such information was disclosed hereunder;\n(b) is at the time of disclosure or thereafter becomes published or otherwise part of the public domain without breach of\nthis Agreement by the Receiving Party;\n(c) is disclosed to the Receiving Party by a third party who is not under an obligation to maintain the confidentiality of the\ninformation; or\n(d) is independently developed by the Receiving Party without any use of or reference to Confidential Information of the\nDisclosing Party, such independent development being documented by contemporaneous written evidence.\n2of5\nConfidential\n3.2 Partial Disclosures; Combinations. Specific aspects or details of Confidential Information shall not be deemed to be within\nthe public domain or in the possession of a Receiving Party merely because the Confidential Information is embraced by\nmore general information in the public domain or in the possession of such party. Further, any combination of individual\nelements of Confidential Information shall be considered Confidential Information and shall not be considered in the public\ndomain or in the possession of a Receiving Party merely because one or more individual elements of such combination are\nin the public domain or in the possession of such Party; rather such combination shall only be considered in the public\ndomain or in the possession of a Receiving Party if the combination of each of the individual elements of the combination is\nin the public domain or in the possession of the Receiving Party.\n3.3 Disclosure Required by Court Order or Government. Notwithstanding anything in this Agreement to the contrary, Receiving\nParty may disclose Confidential Information of the Disclosing Party and Other Information to the extent disclosure is\nrequired by applicable law, rule, regulation, governmental or court order, pursuant to subpoena or other governmental\nauthority, provided that the Receiving Party shall promptly inform the Disclosing Party in writing of such disclosure\nrequirement so that the Disclosing Party may seek a protective order or other appropriate remedy. The Receiving Party shall\nreasonably cooperate with Disclosing Party in connection with the Disclosing Party’s efforts to obtain any such order or\nother remedy. In the event that no such protective order or other remedy is obtained, then the Receiving Party may furnish\nonly that portion of the Confidential Information which the Receiving Party is advised by counsel (including its internal\nlegal counsel) that it is legally required to disclose.\n3.4 No Representation or Warranty By Discloser. The Disclosing Party makes no express or implied representation or warranty\nas to the accuracy, completeness or utility of its Confidential Information. THE RECEIVING PARTY ACKNOWLEDGES\nTHAT THE CONFIDENTIAL INFORMATION OF THE DISCLOSING PARTY IS PROVIDED “AS IS,” WITHOUT\nANY WARRANTY, EXPRESS OR IMPLIED.\n3.5 No License Implied. This Agreement shall not be construed to grant to Receiving Party any license or other rights with\nrespect to the Confidential Information.\n3.6 Ownership; Return/Destruction. All Confidential Information and all materials containing Confidential Information that are\ndelivered to the Receiving Party by the Disclosing Party or the Disclosing Party’s Representatives under this Agreement are\nand remain the sole and exclusive property of the Disclosing Party. Upon written request of the Disclosing Party, the\nReceiving Party shall, at its own cost and expense, promptly destroy or return to the Disclosing Party all such materials (if\nreturned, in the medium provided by Disclosing Party) and destroy all copies of the foregoing or any portion thereof;\nprovided, however, that Receiving Party may retain one copy of the foregoing materials in a secure location for\nrecord-keeping purposes. Neither the Receiving Party nor any of its Representatives shall be required to delete or destroy\nany electronic back-up tapes or other electronic back-up files that have been created solely by their automatic or routine\narchiving and back-up procedures, to the extent created and retained in a manner consistent with its or their standard\narchiving and back-up procedures.\n4. Term and Termination.\n4.1 Term. The term of this Agreement during which Confidential Information may be disclosed by one Party to the other Party\nshall begin on the Effective Date and end five (5) years after the Effective Date, unless extended by mutual agreement.\n4.2 Survival. The Receiving Party’s obligations with respect to Confidential Information under Section 2 shall survive\ntermination or expiration of this Agreement, and shall expire seven (7) years from the Effective Date.\n3of5\nConfidential\n5. Miscellaneous.\n5.1 No Future Obligations. Nothing in this Agreement shall be deemed to create any obligation on the part of either Party to\ncontinue discussions or to enter into a further agreement. Either party may terminate discussions or negotiations at any time\n5.2 Assignment. Neither this Agreement nor the obligations hereunder may be assigned or otherwise transferred by a Party\nwithout written consent of the other Party, except in connection with the sale of all or substantially all of a Party’s assets,\nequity or business or a merger, reorganization or consolidation involving at least fifty percent (50%) or more of the voting\nequity securities of the Party. This Agreement shall be binding upon the parties, their successors and their permitted assigns.\n5.3 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California\nwithout reference to its rules of conflicts of laws.\n5.4 Transfer Restrictions Under Export Control Laws. Each Party agrees that it and its Representatives shall comply with any\napplicable export control laws, rules and regulations relating to the export of technical information, materials or products in\nconnection with any disclosure of Confidential Information under this Agreement.\n5.5 Notices. Each notice required or permitted hereunder shall be in writing and sufficient if delivered personally, sent by a\nnationally-recognized overnight courier or sent by registered or certified mail, postage prepaid, return receipt requested, to\nthe Parties at the addresses indicated in the introductory paragraph of this Agreement, to the attention of the signatories\nbelow, with a copy, in the case of Company, to the General Counsel. Either Party may change its address by giving the\nother Party written notice, delivered in accordance with this Section 5.5 .\n5.6 Waivers and Amendments; Preservation of Remedies. This Agreement may be amended, or the terms and conditions may\nbe waived, only by a written agreement signed by both Parties. No delay on the part of any Party in exercising any right\nhereunder shall operate as a waiver, nor shall any partial exercise of any right hereunder preclude any other exercise thereof.\nThe rights and remedies herein are cumulative and are not exclusive of any rights or remedies which any Party may\notherwise have at law or in equity.\n5.7 Injunctive Relief. The Parties acknowledge that a breach of this Agreement may result in irreparable harm and damages to a\nParty in an amount difficult to ascertain and which cannot be adequately compensated by a monetary award. Accordingly,\nin addition to any of the relief to which any Party may be entitled under this Agreement, at law or in equity, such Party shall\nbe entitled to seek temporary and permanent injunctive relief from any breach or threatened breach without the requirement\nof the Party bringing such action to post any bond or other security with the court in connection therewith.\n5.8 Entire Agreement; Severability. This Agreement constitutes the entire understanding of the Parties with respect to the\nsubject matter hereof and any express or implied agreements, either oral or written, are superseded by the terms of this\nAgreement. If any one or more provisions of this Agreement is held invalid, illegal or unenforceable in any respect by a\ncourt having competent jurisdiction, the validity, legality and enforceability of this Agreement and the remaining provisions\ncontained herein shall not in any way be affected or impaired thereby.\n5.9 Counterparts. This Agreement may be executed in counterparts, each of which shall be an original as against either Party\nwhose signature appears thereon, but all of which taken together shall constitute but one and the same instrument. An\nexecuted facsimile or electronic scanned copy of this Agreement shall have the same force and effect as an original.\n4of5\nConfidential\nKITE PHARMA, INC.\nGILEAD SCIENCES, INC.\nBy:\n/s/ Veer Bhavnagri\nBy: /s/ Elizabeth P. Bhatt\nName:\nVeer Bhavnagri\nName:\nElizabeth Bhatt\nTitle:\nVP Corporate Counsel\nTitle:\nVice President, Corporate\nDevelopment\nDate:\nFebruary 10, 2017\nDate:February 15, 2017\n5of5
ec350f00f01c1054e5a47246744b4626.pdf	effective_date jurisdiction party term	EXHIBIT C\nFORM OF NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nThis Non-Competition and Non-Disclosure Agreement (the “Agreement”), is dated as of December 17, 2018, by and between\n, an individual resident of the State of Georgia (“Director”), and Colony Bankcorp, Inc., a Georgia corporation\n(“CBAN”). All capitalized terms used but not defined herein shall have the meanings assigned to them in the Merger Agreement\n(defined below).\nRECITALS:\nWHEREAS, concurrently with the execution of this Agreement, CBAN and LBC Bancshares, Inc., a Georgia corporation (“LBC”),\nare entering into an Agreement and Plan of Merger (as such agreement may be subsequently amended or modified, the “Merger\nAgreement”), pursuant to which (i) LBC will merge with and into CBAN, with CBAN as the surviving entity, and (ii) Calumet Bank,\na Georgia state-chartered bank and a direct wholly owned subsidiary of LBC, will merge with and into Colony Bank, a Georgia\nstate-chartered bank and a direct wholly owned subsidiary of CBAN, with Colony Bank as the surviving bank (collectively, the\n“Merger”);\nWHEREAS, Director is a shareholder of LBC and, as a result of the Merger and pursuant to the transactions contemplated by the\nMerger Agreement, Director is expected to receive significant consideration in exchange for the shares of LBC Common Stock held\nby Director;\nWHEREAS, as of and prior to the date hereof, Director serves and has served as a member of the Board of Directors of LBC or\nCalumet Bank, and, therefore, Director has knowledge of the Confidential Information and Trade Secrets (each as hereinafter\ndefined);\nWHEREAS, as a result of the Merger, CBAN will succeed to all of the Confidential Information and Trade Secrets, for which\nCBAN as of the Effective Time will have paid valuable consideration and desires reasonable protection; and\nWHEREAS, it is a material prerequisite to the consummation of the Merger that each director of LBC and Calumet Bank, including\nDirector, enter into this Agreement.\nAGREEMENT:\nNOW, THEREFORE, in consideration of these premises and the mutual covenants and undertakings herein contained, CBAN and\nDirector, each intending to be legally bound, covenant and agree as follows:\nSection 1. Restrictive Covenants.\n(a) Director acknowledges that (i) CBAN has separately bargained for the restrictive covenants in this Agreement; and (ii) the types\nand periods of restrictions imposed by the covenants in this Agreement are fair and reasonable to Director and such restrictions will\nnot prevent Director from earning a livelihood.\n(b) Having acknowledged the foregoing, solely in the event that the Merger is consummated, Director covenants and agrees with\nCBAN as follows:\n(i) From and after the Effective Time, Director will not disclose or use any Confidential Information or Trade Secrets for so long as\nsuch information remains Confidential Information or a Trade Secret, as applicable, for any purpose, except for any disclosure that is\nrequired by applicable Law. In the event that Director is required by Law to disclose any Confidential Information, Director will:\n(A) if and to the extent permitted by such Law, provide CBAN with prompt notice of such requirement prior to the disclosure so that\nCBAN may waive the requirements of this Agreement or seek an appropriate protective order at CBAN’s sole expense; and (B) use\ncommercially reasonable efforts to obtain assurances that any Confidential Information disclosed will be accorded confidential\ntreatment. If, in the absence of a waiver or protective order, Director is nonetheless, in the opinion of his or her counsel, required to\ndisclose Confidential Information, disclosure may be made only as to that portion of the Confidential Information that counsel\nadvises Director is required to be disclosed.\n(ii) Except as expressly provided on Schedule I to this Agreement, for a period beginning at the Effective Time and ending two\n(2) years after the Effective Time, Director will not (except on behalf of or with the prior written consent of CBAN), on Director’s\nown behalf or in the service or on behalf of others, solicit or attempt to solicit any customer of CBAN, Colony Bank, LBC or\nCalumet Bank (each a “Protected Party”), including actively sought prospective customers of Calumet Bank as of the Effective Time,\nfor the purpose of providing products or services that are Competitive (as hereinafter defined) with those offered or provided by any\nProtected Party.\n(iii) Except as expressly provided on Schedule I to this Agreement, for a period beginning at the Effective Time and ending two\n(2) years after the Effective Time, Director will not (except on behalf of or with the prior written consent of CBAN), either directly or\nindirectly, on Director’s own behalf or in the service or on behalf of others, act as a director, manager, officer or employee of any\nbusiness which is the same as or essentially the same as the business conducted by any Protected Party and which has an office\nlocated within the Restricted Territory.\n(iv) For a period beginning at the Effective Time and ending two (2) years after the Effective Time, Director will not, on Director’s\nown behalf or in the service or on behalf of others, solicit or recruit or attempt to solicit or recruit, directly or by assisting others, any\nemployee of any Protected Party, whether or not such employee is a full-time employee or a temporary employee of such Protected\nParty, whether or not such employment is pursuant to a written agreement and whether or not such employment is for a determined\nperiod or is at will, to cease working for such Protected Party; provided that the foregoing will not prevent the placement of any\ngeneral solicitation for employment not specifically directed towards employees of any Protected Party or hiring any such person as a\nresult thereof.\n2\n(c) For purposes of this Section 1, the following terms shall be defined as set forth below:\n(i) “Competitive,” with respect to particular products or services, means products or services that are the same as or similar to the\nproducts or services of any Protected Party.\n(ii) “Confidential Information” means data and information:\n(A) relating to the business of LBC and its Subsidiaries, including Calumet Bank, regardless of whether the data or information\nconstitutes a Trade Secret;\n(B) disclosed to Director or of which Director became aware as a consequence of Director’s relationship with LBC and/or Calumet\nBank;\n(C) having value to LBC and/or Calumet Bank and, as a result of the consummation of the transactions contemplated by the Merger\nAgreement, CBAN and/or Colony Bank; and\n(D) not generally known to competitors of LBC or CBAN (including competitors to Calumet Bank or Colony Bank).\nConfidential Information shall include Trade Secrets, methods of operation, names of customers, price lists, financial information and\nprojections, personnel data and similar information; provided, however, that the terms “Confidential Information” and “Trade\nSecrets” shall not mean data or information that (x) has been disclosed to the public, except where such public disclosure has been\nmade by Director without authorization from LBC or CBAN, (y) has been independently developed and disclosed by others, or\n(z) has otherwise entered the public domain through lawful means.\n(iii) “Restricted Territory” means each county in Georgia where Calumet Bank operates a banking office at the Effective Time and\neach county contiguous to each of such counties.\n(iv) “Trade Secret” means information, without regard to form, including technical or nontechnical data, a formula, a pattern, a\ncompilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans or a list of\nactual or potential customers or suppliers, that is not commonly known by or available to the public and which information:\n(A) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper\nmeans by, other persons who can obtain economic value from its disclosure or use; and\n(B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.\n3\n(d) Director acknowledges that irreparable loss and injury would result to CBAN upon the breach of any of the covenants contained\nin this Section 1 and that damages arising out of such breach would be difficult to ascertain. Director hereby agrees that, in addition\nto all other remedies provided at law or in equity, CBAN may petition and obtain from a court of law or equity, without the necessity\nof proving actual damages and without posting any bond or other security, both temporary and permanent injunctive relief to prevent\na breach by Director of any covenant contained in this Section 1, and shall be entitled to an equitable accounting of all earnings,\nprofits and other benefits arising out of any such breach. In the event that the provisions of this Section 1 should ever be determined\nto exceed the time, geographic or other limitations permitted by applicable Law, then such provisions shall be modified so as to be\nenforceable to the maximum extent permitted by Law. If such provision(s) cannot be modified to be enforceable, the provision(s)\nshall be severed from this Agreement to the extent unenforceable. The remaining provisions and any partially enforceable provisions\nshall remain in full force and effect.\nSection 2. Term; Termination. This Agreement may be terminated at any time by the written consent of the parties hereto, and this\nAgreement shall be automatically terminated upon the earlier of (i) termination of the Merger Agreement; (ii) two (2) years following\nthe Effective Time or (iii) upon a Change in Control of CBAN (as defined in Schedule I). For the avoidance of doubt, the provisions\nof Section 1 shall only become operative upon the consummation of the Merger but, in such event, shall survive the consummation of\nthe Merger until the earlier of (a) two (2) years after the Effective Time or (b) upon a Change in Control of CBAN. Upon termination\nof this Agreement, no party shall have any further obligations or liabilities hereunder, except that termination of this Agreement will\nnot relieve a breaching party from liability for any breach of any provision of this Agreement occurring prior to the termination of\nthis Agreement.\nSection 3. Notices. All notices, requests and other communications hereunder to a party shall be in writing and shall be deemed\nproperly given if delivered (a) personally, (b) by registered or certified mail (return receipt requested), with adequate postage prepaid\nthereon, (c) by properly addressed electronic mail delivery (with confirmation of delivery receipt), or (d) by reputable courier service\nto such party at its address set forth below, or at such other address or addresses as such party may specify from time to time by\nnotice in like manner to the parties hereto. All notices shall be deemed effective upon delivery.\nIf to CBAN:\nColony Bankcorp, Inc.\n115 South Grant Street\nFitzgerald, GA 31750\nAttn: T. Heath Fountain, President & CEO\nE-mail: heath.fountain@colonybank.com\nIf to Director:\nThe address of Director’s principal residence as it\nappears in LBC’s records as of the date hereof, as\nsubsequently modified by Director’s provision of notice\nregarding the same to CBAN.\nSection 4. Governing Law; Jurisdiction. This Agreement shall be governed by, and interpreted and enforced in accordance with, the\ninternal, substantive laws of the State of Georgia, without regard for conflict of law provisions. Any civil action, counterclaim,\nproceeding or litigation arising out of or relating to this Agreement shall be brought in the courts of record of the\n4\nState of Georgia in Ben Hill County or the United States District Court, Middle District of Georgia. Each party consents to the\njurisdiction of such Georgia court in any such civil action, counterclaim, proceeding or litigation and waives any objection to the\nlaying of venue of any such civil action, counterclaim, proceeding or litigation in such Georgia court. Service of any court paper may\nbe effected on such party by mail, as provided in this letter, or in such other manner as may be provided under applicable Laws.\nSection 5. Modification and Waiver. No provision of this Agreement may be modified, waived or discharged unless such waiver,\nmodification or discharge is agreed to in writing signed by Director and CBAN. No waiver by either party hereto at any time of any\nbreach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other\nparty shall be deemed a waiver of dissimilar provisions or conditions at the same or any prior subsequent time.\nSection 6. Severability. In the event that any one or more provisions of this Agreement shall for any reason be held invalid, illegal or\nunenforceable in any respect, by any court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any\nother provisions of this Agreement and the parties shall use their commercially reasonable efforts to substitute a valid, legal and\nenforceable provision which, insofar as practical, implements the purposes and intents of this Agreement.\nSection 7. Counterparts. This Agreement may be executed and delivered by facsimile or by electronic data file and in one or more\ncounterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts\nhave been signed by each of the parties and delivered to the other party, it being understood that all parties need not sign the same\ncounterpart. Signatures delivered by facsimile or by electronic data file shall have the same effect as originals.\nSection 8. Entire Agreement. This Agreement represents the entire understanding of the parties hereto with reference to the\ntransactions contemplated hereby, and this Agreement supersedes any and all other oral or written agreements heretofore made.\nSection 9. Construction; Interpretation. Whenever the singular number is used in this Agreement and when required by the context,\nthe same shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter genders and vice\nversa. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by\nthe words “without limitation.” The headings in this Agreement are for convenience only and are in no way intended to describe,\ninterpret, define or limit the scope, extent or intent of this Agreement or any of its provisions.\n5\nIN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first written above.\nCOLONY BANKCORP, INC.\nBy:\nName:\nT. Heath Fountain\nTitle:\nPresident and Chief\nExecutive Officer\nDIRECTOR\nSignature Page – Non-Competition and Non-Disclosure Agreement	EXHIBIT C\nFORM OF NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nThis Non-Competition and Non-Disclosure Agreement (the ”A ggement"), is dated as of December 17, 2018, by and between\n, an individual resident of the State of Georgia (”Director”), and Colony Bankcorp, Inc., a Georgia corporation\n(”w”). All capitalized terms used but not defined herein shall have the meanings assigned to them in the Merger Agreement\n(defined below).\nRECITALS:\nWHEREAS, concurrently with the execution of this Agreement, CBAN and LBC Bancshares, Inc., a Georgia corporation (”E"),\nare entering into an Agreement and Plan of Merger (as such agreement may be subsequently amended or modified, the ”Me;\nAgreement”), pursuant to which (i) LBC will merge with and into CBA N, with CBAN as the surviving entity, and (ii) Calumet Bank,\na Georgia state- chartered bank and a direct wholly owned subsidiary of LBC, will merge with and into Colony Bank, a Georgia\nstate chartered bank and a direct wholly owned subsidiary of CBA N, with Colony Bank as the surviving bank (collectively, the\n”Me ;[e I);\nWHEREAS, Director is a shareholder of LBC and, as a result of the Merger and pursuant to the transactions contemplated by the\nMerger Agreement, Director is expected to receive significant consideration in exchange for the shares of LBC Common Stock held\nby Director;\nWHEREAS, as of and prior to the date hereof, Director serves and has served as a member of the Board of Directors of LBC or\nCalumet Bank, and, therefore, Director has knowledge of the Confidential Information and Trade Secrets (each as hereinafter\ndefined);\nWHEREAS, as a result of the Merger, CBAN will succeed to all of the Confidential Information and Trade Secrets, for which\nCBAN as of the Effective Time will have paid valuable consideration and desires reasonable protection; and\nWHEREAS, it is a material prerequisite to the consummation of the Merger that each director of LBC and Calumet Bank, including\nDirector, enter into this A greement.\nAGREEMENT:\nNOW, THEREFORE, in consideration of these premises and the mutual covenants and undertakings herein contained, CBAN and\nDirector, each intending to be legally bound, covenant and agree as follows:\nSection 1. Restrictive Covenants.\n(a) Director acknowledges that (i) CBAN has separately bargained for the restrictive covenants in this Agreement; and (ii) the types\nand periods of restrictions imposed by the covenants in this Agreement are fair and reasonable to Director and such restrictions will\nnot prevent Director from earning a livelihood.\n \n(b) Having acknowledged the foregoing, solely in the event that the Merger is consummated, Director covenants and agrees with\nCBAN as follows:\n(i) From and after the Effective Time, Director will not disclose or use any Confidential Information or Trade Secrets for so long as\nsuch information remains Confidential Information or a Trade Secret, as applicable, for any purpose, except for any disclosure that is\nrequired by applicable Law. In the event that Director is required by Law to disclose any Confidential Information, Director will:\n(A) if and to the extent permitted by such Law, provide CBAN with prompt notice of such requirement prior to the disclosure so that\nCBAN may waive the requirements of this Agreement or seek an appropriate protective order at CBA N’ s sole expense; and (B) use\ncommercially reasonable efforts to obtain assurances that any Confidential Information disclosed will be accorded confidential\ntreatment. If, in the absence of a waiver or protective order, Director is nonetheless, in the opinion of his or her counsel, required to\ndisclose Confidential Information, disclosure may be made only as to that portion of the Confidential Information that counsel\nadvises Director is required to be disclosed.\n(ii) Except as expressly provided on Schedule I to this Agreement, for a period beginning at the Effective Time and ending two\n(2) years after the Effective Time, Director will not (except on behalf of or with the prior written consent of CBA N), on Director’ s\nown behalf or in the service or on behalf of others, solicit or attempt to solicit any customer of CBA N, Colony Bank, LBC or\nCalumet Bank (each a ”Protected Pam”), including actively sought prospective customers of Calumet Bank as of the Effective Time,\nfor the purpose of providing products or services that are Competitive (as hereinafter defined) with those offered or provided by any\nProtected Party.\n(iii) Except as expressly provided on Schedule I to this Agreement, for a period beginning at the Effective Time and ending two\n(2) years after the Effective Time, Director will not (except on behalf of or with the prior written consent of CBA N), either directly or\nindirectly, on Director’ s own behalf or in the service or on behalf of others, act as a director, manager, officer or employee of any\nbusiness which is the same as or essentially the same as the business conducted by any Protected Party and which has an office\nlocated within the Restricted Territory.\n(iv) For a period beginning at the Effective Time and ending two (2) years after the Effective Time, Director will not, on Director’ s\nown behalf or in the service or on behalf of others, solicit or recruit or attempt to solicit or recruit, directly or by assisting others, any\nemployee of any Protected Party, whether or not such employee is a full-time employee or a temporary employee of such Protected\nParty, whether or not such employment is pursuant to a written agreement and whether or not such employment is for a determined\nperiod or is at will, to cease working for such Protected Party; provided that the foregoing will not prevent the placement of any\ngeneral solicitation for employment not specifically directed towards employees of any Protected Party or hiring any such person as a\nresult thereof.\n \n(c) For purposes of this Section 1, the following terms shall be defined as set forth below:\n(i) ” ompetitive," with respect to particular products or services, means products or services that are the same as or similar to the\nproducts or services of any Protected Party.\n(ii) ”Confidential Information” means data and information:\n(A) relating to the business of LBC and its Subsidiaries, including Calumet Bank, regardless of whether the data or information\nconstitutes a Trade Secret;\n(B) disclosed to Director or of which Director became aware as a consequence of Director’ s relationship with LBC and/or Calumet\nB ank;\n(C) having value to LBC and/or Calumet Bank and, as a result of the consummation of the transactions contemplated by the Merger\nA greement, CBA N and/or Colony B ank; and\n(D) not generally known to competitors of LBC or CBAN (including competitors to Calumet Bank or Colony Bank).\nConfidential Information shall include Trade Secrets, methods of operation, names of customers, price lists, financial information and\nprojections, personnel data and similar information; provided, however, that the terms ”Confidential Information” and ”Trade\nSecrets" shall not mean data or information that (X) has been disclosed to the public, except where such public disclosure has been\nmade by Director without authorization from LBC or CBA N, (y) has been independently developed and disclosed by others, or\n(2) has otherwise entered the public domain through lawful means.\n(iii) ”Restricted Territory” means each county in Georgia where Calumet Bank operates a banking office at the Effective Time and\neach county contiguous to each of such counties.\n(iv) ”Trade Secret” means information, without regard to form, including technical or nontechnical data, a formula, a pattern, a\ncompilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans or a list of\nactual or potential customers or suppliers, that is not commonly known by or available to the public and which information:\n(A) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper\nmeans by, other persons who can obtain economic value from its disclosure or use; and\n(B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.\n \n(d) Director acknowledges that irreparable loss and injury would result to CBAN upon the breach of any of the covenants contained\nin this Section 1 and that damages arising out of such breach would be difficult to ascertain. Director hereby agrees that, in addition\nto all other remedies provided at law or in equity, CBAN may petition and obtain from a court of law or equity, without the necessity\nof proving actual damages and without posting any bond or other security, both temporary and permanent injunctive relief to prevent\na breach by Director of any covenant contained in this Section 1, and shall be entitled to an equitable accounting of all earnings,\nprofits and other benefits arising out of any such breach. In the event that the provisions of this Section 1 should ever be determined\nto exceed the time, geographic or other limitations permitted by applicable Law, then such provisions shall be modified so as to be\nenforceable to the maximum extent permitted by Law. If such provision(s) cannot be modified to be enforceable, the provision(s)\nshall be severed from this Agreement to the extent unenforceable. The remaining provisions and any partially enforceable provisions\nshall remain in full force and effect.\nSection 2. Te_rm; Termination. This Agreement may be terminated at any time by the written consent of the parties hereto, and this\nAgreement shall be automatically terminated upon the earlier of (i) termination of the Merger Agreement; (ii) two (2) years following\nthe Effective Time or (iii) upon a Change in Control of CBAN (as defined in Schedule I). For the avoidance of doubt, the provisions\nof Section 1 shall only become operative upon the consummation of the Merger but, in such event, shall survive the consummation of\nthe Merger until the earlier of (a) two (2) years after the Effective Time or (b) upon a Change in Control of CBA N. Upon termination\nof this A greement, no party shall have any further obligations or liabilities hereunder, except that termination of this A greement will\nnot relieve a breaching party from liability for any breach of any provision of this Agreement occurring prior to the termination of\nthis A greement.\nSection 3. Notices. All notices, requests and other communications hereunder to a party shall be in writing and shall be deemed\nproperly given if delivered (a) personally, (b) by registered or certified mail (return receipt requested), with adequate postage prepaid\nthereon, (c) by properly addressed electronic mail delivery (with confirmation of delivery receipt), or (d) by reputable courier service\nto such party at its address set forth below, or at such other address or addresses as such party may specify from time to time by\nnotice in like manner to the parties hereto. All notices shall be deemed effective upon delivery.\n \nIf to CBAN: Colony Bankcorp, Inc.\n115 South Grant Street\nFitzgerald, GA 31750\nAttn: T. Heath Fountain, President & CEO\nE-mail: heath.fountain@ colonybank.com\nIf to Director: The address of Director’ s principal residence as it\nappears in LBC's records as of the date hereof, as\nsubsequently modified by Director’ s provision of notice\nregarding the same to CBA N.\nSection 4. Governing Law; urisdiction. This Agreement shall be governed by, and interpreted and enforced in accordance with, the\ninternal, substantive laws of the State of Georgia, without regard for conflict of law provisions. Any civil action, counterclaim,\nproceeding or litigation arising out of or relating to this Agreement shall be brought in the courts of record of the\n \nState of Georgia in Ben Hill County or the United States District Court, Middle District of Georgia. Each party consents to the\njurisdiction of such Georgia court in any such civil action, counterclaim, proceeding or litigation and waives any objection to the\nlaying of venue of any such civil action, counterclaim, proceeding or litigation in such Georgia court. Service of any court paper may\nbe effected on such party by mail, as provided in this letter, or in such other manner as may be provided under applicable Laws.\nSection 5. Modification and Waiver. No provision of this A greement may be modified, waived or discharged unless such waiver,\nmodification or discharge is agreed to in writing signed by Director and CBA N. No waiver by either party hereto at any time of any\nbreach by the other party hereto of, or compliance with, any condition or provision of this A greement to be performed by such other\nparty shall be deemed a waiver of dissimilar provisions or conditions at the same or any prior subsequent time.\nSection 6. Severabilifl. In the event that any one or more provisions of this Agreement shall for any reason be held invalid, illegal or\nunenforceable in any respect, by any court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any\nother provisions of this Agreement and the parties shall use their commercially reasonable efforts to substitute a valid, legal and\nenforceable provision which, insofar as practical, implements the purposes and intents of this Agreement.\nSection 7. Counterparts. This Agreement may be executed and delivered by facsimile or by electronic data file and in one or more\ncounterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts\nhave been signed by each of the parties and delivered to the other party, it being understood that all parties need not sign the same\ncounterpart. Signatures delivered by facsimile or by electronic data file shall have the same effect as originals.\nSection 8. Entire Agreement. This Agreement represents the entire understanding of the parties hereto with reference to the\ntransactions contemplated hereby, and this Agreement supersedes any and all other oral or written agreements heretofore made.\nSection 9. Construction; Interpretation. Whenever the singular number is used in this Agreement and when required by the context,\nthe same shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter genders and vice\nversa. Whenever the words ”include,” ”includes" or ”including" are used in this Agreement, they shall be deemed to be followed by\nthe words ”without limitation.” The headings in this Agreement are for convenience only and are in no way intended to describe,\ninterpret, define or limit the scope, extent or intent of this Agreement or any of its provisions.\n \nIN WITNESS WHEREO F, the parties hereto have executed and delivered this Agreement as of the date first written above.\nCOLONY BANKCORP, INC.\nBy:\nName: m\nTitle: President and Chief\nExecutive Officer\nDIRECTOR\nSignature Page - Non-C ompetition and Non-Disclosure Agreement	EXHIBIT C\nFORM OF NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nThis Non-Competition and Non-Disclosure A greement (the greement"), is dated as of December 17, 2018, by and between\nan individual resident of the State of Georgia ("Director"), and Colony Bankcorp, Inc., a Georgia corporation\n("CBAN") All capitalized terms used but not defined herein shall have the meanings assigned to them in the Merger A greement\n(defined below).\nRECITALS:\nWHEREAS, concurrently with the execution of this A Agreement, CBAN and LBC Bancshares, Inc., a Georgia corporation ("LBC"),\nare entering into an A greement and Plan of Merger (as such agreement may be subsequently amended or modified, the "Merger\nAgreement"), pursuant to which (i) LBC will merge with and into CBAN, with CBAN as the surviving entity, and (ii) Calumet Bank\na Georgia state-chartered bank and a direct wholly owned subsidiary of LBC, will merge with and into Colony Bank, a Georgia\nstate-chartered bank and a direct wholly owned subsidiary of CBAN, with Colony Bank as the surviving bank (collectively, the\n"Merger");\nWHEREAS, Director is a shareholder of LBC and, as a result of the Merger and pursuant to the transactions contemplated by the\nMerger greement, Director is expected to receive significant consideration in exchange for the shares of LBC Common Stock held\nby Director;\nWHEREAS, as of and prior to the date hereof, Director serves and has served as a member of the Board of Directors of LBC or\nCalumet Bank, and, therefore, Director has knowledge of the Confidential Information and Trade Secrets (each as hereinafter\ndefined);\nWHEREAS, as a result of the Merger, CBAN will succeed to all of the Confidential Information and Trade Secrets, for which\nCBAN as of the Effective Time will have paid valuable consideration and desires reasonable protection; and\nWHEREAS, it is a material prerequisite to the consummation of the Merger that each director of LBC and Calumet Bank, including\nDirector, enter into this A greement\nAGREEMENT:\nNOW, THEREFORE, in consideration of these premises and the mutual covenants and undertakings herein contained, CBAN and\nDirector, each intending to be legally bound, covenant and agree as follows:\nSection 1. Restrictive Covenants\n(a) Director acknowledges that (i) CBAN has separately bargained for the restrictive covenants in this Agreement; and (ii) the types\nand periods of restrictions imposed by the covenants in this greement are fair and reasonable to Director and such restrictions will\nnot prevent Director from earning a livelihood.\n(b) Having acknowledged the foregoing, solely in the event that the Merger is consummated, Director covenants and agrees with\nCBAN as follows:\n(i) From and after the Effective Time, Director will not disclose or use any Confidential Information or Trade Secrets for so long as\nsuch information remains Confidential Information or a Trade Secret, as applicable, for any purpose, except for any disclosure that is\nrequired by applicable Law. In the event that Director is required by Law to disclose any Confidential Information, Director will:\n(A) if and to the extent permitted by such Law, provide CBAN with prompt notice of such requirement prior to the disclosure so that\nCBAN may waive the requirements of this A greement or seek an appropriate protective order at CBAN's sole expense; and (B) use\ncommercially reasonable efforts to obtain assurances that any Confidential Information disclosed will be accorded confidential\ntreatment. If, in the absence of a waiver or protective order, Director is nonetheless, in the opinion of his or her counsel, required to\ndisclose Confidential Information, disclosure may be made only as to that portion of the Confidential Information that counsel\nadvises Director is required to be disclosed.\n(ii) Except as expressly provided on Schedule I to this A greement, for a period beginning at the Effective Time and ending two\n(2) years after the Effective Time, Director will not (except on behalf of or with the prior written consent of CBAN), on Director's\nown behalf or in the service or on behalf of others, solicit or attempt to solicit any customer of CBAN, Colony Bank, LBC or\nCalumet Bank (each a "Protected Party"), including actively sought prospective customers of Calumet Bank as of the Effective Time,\nfor the purpose of providing products or services that are Competitive (as hereinafter defined) with those offered or provided by any\nProtected Party.\n(iii) Except as expressly provided on Schedule I to this A greement, for a period beginning at the Effective Time and ending two\n(2) years after the Effective Time, Director will not (except on behalf of or with the prior written consent of CBAN), either directly or\nindirectly, on Director's own behalf or in the service or on behalf of others, act as a director, manager, officer or employee of any\nbusiness which is the same as or essentially the same as the business conducted by any Protected Party and which has an office\nlocated within the Restricted Territory.\n(iv) For a period beginning at the Effective Time and ending two (2) years after the Effective Time, Director will not, on Director's\nown behalf or in the service or on behalf of others, solicit or recruit or attempt to solicit or recruit, directly or by assisting others,\nany\nemployee of any Protected Party, whether or not such employee is a full-time employee or a temporary employee of such Protected\nParty, whether or not such employment is pursuant to a written agreement and whether or not such employment is for a determined\nperiod or is at will to cease working for such Protected Party; provided that the foregoing will not prevent the placement of any\ngeneral solicitation for employment not specifically directed towards employees of any Protected Party or hiring any such person as a\nresult thereof.\n2\n(c) For purposes of this Section 1, the following terms shall be defined as set forth below:\n(i) "Competitive," with respect to particular products or services, means products or services that are the same as or similar to the\nproducts or services of any Protected Party.\n(ii) "Confidential Information" means data and information:\n(A) relating to the business of LBC and its Subsidiaries, including Calumet Bank, regardless of whether the data or information\nconstitutes a Trade Secret;\n(B) disclosed to Director or of which Director became aware as a consequence of Director's relationship with LBC and/or Calumet\nBank;\n(C) having value to LBC and/or Calumet Bank and, as a result of the consummation of the transactions contemplated by the Merger\nAgreement, CBAN and/or Colony Bank; and\n(D) not generally known to competitors of LBC or CBAN (including competitors to Calumet Bank or Colony Bank).\nConfidential Information shall include Trade Secrets, methods of operation, names of customers, price lists, financial information and\nprojections, personnel data and similar information; provided, however, that the terms "Confidential Information" and "Trade\nSecrets" shall not mean data or information that (x) has been disclosed to the public, except where such public disclosure has been\nmade by Director without authorization from LBC or CBAN, (y) has been independently developed and disclosed by others, or\n(z) has otherwise entered the public domain through lawful means.\n(iii) "Restricted Territory" means each county in Georgia where Calumet Bank operates a banking office at the Effective Time and\neach county contiguous to each of such counties.\n(iv) "Trade Secret" means information, without regard to form, including technical or nontechnical data, a formula, a pattern, a\ncompilation, a program, a device, a method, a technique, a drawing, a process financial data, financial plans, product plans or a list of\nactual or potential customers or suppliers, that is not commonly known by or available to the public and which information:\n(A) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper\nmeans by, other persons who can obtain economic value from its disclosure or use; and\n(B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.\n3\n(d) Director acknowledges that irreparable loss and injury would result to CBAN upon the breach of any of the covenants contained\nin this Section 1 and that damages arising out of such breach would be difficult to ascertain. Director hereby agrees that, in addition\nto all other remedies provided at law or in equity, CBAN may petition and obtain from a court of law or equity, without the necessity\nof proving actual damages and without posting any bond or other security, both temporary and permanent injunctive relief to prevent\na breach by Director of any covenant contained in this Section 1, and shall be entitled to an equitable accounting of all earnings,\nprofits and other benefits arising out of any such breach. In the event that the provisions of this Section 1 should ever be determined\nto exceed the time, geographic or other limitations permitted by applicable Law, then such provisions shall be modified so as to be\nenforceable to the maximum extent permitted by Law. If such provision(s) cannot be modified to be enforceable, the provision(s)\nshall be severed from this greement to the extent unenforceable. The remaining provisions and any partially enforceable provisions\nshall remain in full force and effect.\nSection 2. Term; Termination. This A greement may be terminated at any time by the written consent of the parties hereto, and this\nAgreement shall be automatically terminated upon the earlier of (i) termination of the Merger A greement; (ii) two (2) years following\nthe Effective Time or (iii) upon a Change in Control of CBAN (as defined in Schedule I). For the avoidance of doubt, the provisions\nof Section 1 shall only become operative upon the consummation of the Merger but, in such event shall survive the consummation of\nthe Merger until the earlier of (a) two (2) years after the Effective Time or (b) upon a Change in Control of CBAN. Upon termination\nof this A greement, no party shall have any further obligations or liabilities hereunder, except that termination of this greement will\nnot relieve a breaching party from liability for any breach of any provision of this A greement occurring prior to the termination of\nthis A greement.\nSection 3. Notices. All notices, requests and other communications hereunder to a party shall be in writing and shall be deemed\nproperly given if delivered (a) personally, (b) by registered or certified mail (return receipt requested), with adequate postage prepaid\nthereon (c) by properly addressed electronic mail delivery (with confirmation of delivery receipt), or (d) by reputable courier service\nto such party at its address set forth below, or at such other address or addresses as such party may specify from time to time by\nnotice in like manner to the parties hereto. All notices shall be deemed effective upon delivery.\nIf to CBAN:\nColony Bankcorp, Inc.\n115 South Grant Street\nFitzgerald, GA 31750\nAttn: T. Heath Fountain, President & CEO\nE-mail: l:heath.fountain@colonybank.com\nIf to Director:\nThe address of Director's principal residence as it\nappears in LBC's records as of the date hereof, as\nsubsequently modified by Director's provision of notice\nregarding the same to CBAN.\nSection 4. Governing Law; Jurisdiction This Agreement shall be governed by, and interpreted and enforced in accordance with, the\ninternal, substantive laws of the State of Georgia, without regard for conflict of law provisions. A ny civil action, counterclaim,\nproceeding or litigation arising out of or relating to this A greement shall be brought in the courts of record of the\n4\nState of Georgia in Ben Hill County or the United States District Court, Middle District of Georgia. Each party consents to the\njurisdiction of such Georgia court in any such civil action, counterclaim, proceeding or litigation and waives any objection to the\nlaying of venue of any such civil action, counterclaim, proceeding or litigation in such Georgia court. Service of any court paper may\nbe effected on such party by mail, as provided in this letter, or in such other manner as may be provided under applicable Laws.\nSection 5. Modification and Waiver. No provision of this A greement may be modified, waived or discharged unless such waiver,\nmodification or discharge is agreed to in writing signed by Director and CBAN. No waiver by either party hereto at any time of any\nbreach by the other party hereto of, or compliance with, any condition or provision of this A greement to be performed by such other\nparty shall be deemed a waiver of dissimilar provisions or conditions at the same or any prior subsequent time.\nSection 6. Severability. In the event that any one or more provisions of this A greement shall for any reason be held invalid, illegal or\nunenforceable in any respect, by any court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any\nother provisions of this A greement and the parties shall use their commercially reasonable efforts to substitute a valid, legal and\nenforceable provision which, insofar as practical, implements the purposes and intents of this greement.\nSection 7. Counterparts. This A greement may be executed and delivered by facsimile or by electronic data file and in one or more\ncounterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts\nhave been signed by each of the parties and delivered to the other party, it being understood that all parties need not sign the same\ncounterpart. Signatures delivered by facsimile or by electronic data file shall have the same effect as originals.\nSection 8. Entire A greement. This A greement represents the entire understanding of the parties hereto with reference to the\ntransactions contemplated hereby, and this A greement supersedes any and all other oral or written agreements heretofore made.\nSection 9. Construction; Interpretation. Nhenever the singular number is used in this A greement and when required by the context,\nthe same shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter genders and vice\nversa. Whenever the words "include," "includes" or "including" are used in this greement, they shall be deemed to be followed by\nthe words "without limitation." The headings in this A greement are for convenience only and are in no way intended to describe,\ninterpret, define or limit the scope, extent or intent of this A greement or any of its provisions.\n5\nIN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first written above.\nCOLONY BANKCORP, INC.\nBy:\nName:\nT. Heath Fountain\nTitle:\nPresident and Chief\nExecutive Officer\nDIRECTOR\nSignature Page - on-Competition and Non-Disclosure Agreement	EXHIBIT C\nFORM OF NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nThis Non-Competition and Non-Disclosure Agreement (the “Agreement”), is dated as of December 17, 2018, by and between\n, an individual resident of the State of Georgia (“Director”), and Colony Bankcorp, Inc., a Georgia corporation\n(“CBAN”). All capitalized terms used but not defined herein shall have the meanings assigned to them in the Merger Agreement\n(defined below).\nRECITALS:\nWHEREAS, concurrently with the execution of this Agreement, CBAN and LBC Bancshares, Inc., a Georgia corporation (“LBC”),\nare entering into an Agreement and Plan of Merger (as such agreement may be subsequently amended or modified, the “Merger\nAgreement”), pursuant to which (i) LBC will merge with and into CBAN, with CBAN as the surviving entity, and (ii) Calumet Bank,\na Georgia state-chartered bank and a direct wholly owned subsidiary of LBC, will merge with and into Colony Bank, a Georgia\nstate-chartered bank and a direct wholly owned subsidiary of CBAN, with Colony Bank as the surviving bank (collectively, the\n“Merger”);\nWHEREAS, Director is a shareholder of LBC and, as a result of the Merger and pursuant to the transactions contemplated by the\nMerger Agreement, Director is expected to receive significant consideration in exchange for the shares of LBC Common Stock held\nby Director;\nWHEREAS, as of and prior to the date hereof, Director serves and has served as a member of the Board of Directors of LBC or\nCalumet Bank, and, therefore, Director has knowledge of the Confidential Information and Trade Secrets (each as hereinafter\ndefined);\nWHEREAS, as a result of the Merger, CBAN will succeed to all of the Confidential Information and Trade Secrets, for which\nCBAN as of the Effective Time will have paid valuable consideration and desires reasonable protection; and\nWHEREAS, it is a material prerequisite to the consummation of the Merger that each director of LBC and Calumet Bank, including\nDirector, enter into this Agreement.\nAGREEMENT:\nNOW, THEREFORE, in consideration of these premises and the mutual covenants and undertakings herein contained, CBAN and\nDirector, each intending to be legally bound, covenant and agree as follows:\nSection 1. Restrictive Covenants.\n(a) Director acknowledges that (i) CBAN has separately bargained for the restrictive covenants in this Agreement; and (ii) the types\nand periods of restrictions imposed by the covenants in this Agreement are fair and reasonable to Director and such restrictions will\nnot prevent Director from earning a livelihood.\n(b) Having acknowledged the foregoing, solely in the event that the Merger is consummated, Director covenants and agrees with\nCBAN as follows:\n(i) From and after the Effective Time, Director will not disclose or use any Confidential Information or Trade Secrets for so long as\nsuch information remains Confidential Information or a Trade Secret, as applicable, for any purpose, except for any disclosure that is\nrequired by applicable Law. In the event that Director is required by Law to disclose any Confidential Information, Director will:\n(A) if and to the extent permitted by such Law, provide CBAN with prompt notice of such requirement prior to the disclosure so that\nCBAN may waive the requirements of this Agreement or seek an appropriate protective order at CBAN’s sole expense; and (B) use\ncommercially reasonable efforts to obtain assurances that any Confidential Information disclosed will be accorded confidential\ntreatment. If, in the absence of a waiver or protective order, Director is nonetheless, in the opinion of his or her counsel, required to\ndisclose Confidential Information, disclosure may be made only as to that portion of the Confidential Information that counsel\nadvises Director is required to be disclosed.\n(ii) Except as expressly provided on Schedule I to this Agreement, for a period beginning at the Effective Time and ending two\n(2) years after the Effective Time, Director will not (except on behalf of or with the prior written consent of CBAN), on Director’s\nown behalf or in the service or on behalf of others, solicit or attempt to solicit any customer of CBAN, Colony Bank, LBC or\nCalumet Bank (each a “Protected Party”), including actively sought prospective customers of Calumet Bank as of the Effective Time,\nfor the purpose of providing products or services that are Competitive (as hereinafter defined) with those offered or provided by any\nProtected Party.\n(iii) Except as expressly provided on Schedule I to this Agreement, for a period beginning at the Effective Time and ending two\n(2) years after the Effective Time, Director will not (except on behalf of or with the prior written consent of CBAN), either directly or\nindirectly, on Director’s own behalf or in the service or on behalf of others, act as a director, manager, officer or employee of any\nbusiness which is the same as or essentially the same as the business conducted by any Protected Party and which has an office\nlocated within the Restricted Territory.\n(iv) For a period beginning at the Effective Time and ending two (2) years after the Effective Time, Director will not, on Director’s\nown behalf or in the service or on behalf of others, solicit or recruit or attempt to solicit or recruit, directly or by assisting others, any\nemployee of any Protected Party, whether or not such employee is a full-time employee or a temporary employee of such Protected\nParty, whether or not such employment is pursuant to a written agreement and whether or not such employment is for a determined\nperiod or is at will, to cease working for such Protected Party; provided that the foregoing will not prevent the placement of any\ngeneral solicitation for employment not specifically directed towards employees of any Protected Party or hiring any such person as a\nresult thereof.\n2\n(c) For purposes of this Section 1, the following terms shall be defined as set forth below:\n(i) “Competitive,” with respect to particular products or services, means products or services that are the same as or similar to the\nproducts or services of any Protected Party.\n(ii) “Confidential Information” means data and information:\n(A) relating to the business of LBC and its Subsidiaries, including Calumet Bank, regardless of whether the data or information\nconstitutes a Trade Secret;\n(B) disclosed to Director or of which Director became aware as a consequence of Director’s relationship with LBC and/or Calumet\nBank;\n(C) having value to LBC and/or Calumet Bank and, as a result of the consummation of the transactions contemplated by the Merger\nAgreement, CBAN and/or Colony Bank; and\n(D) not generally known to competitors of LBC or CBAN (including competitors to Calumet Bank or Colony Bank).\nConfidential Information shall include Trade Secrets, methods of operation, names of customers, price lists, financial information and\nprojections, personnel data and similar information; provided, however, that the terms “Confidential Information” and “Trade\nSecrets” shall not mean data or information that (x) has been disclosed to the public, except where such public disclosure has been\nmade by Director without authorization from LBC or CBAN, (y) has been independently developed and disclosed by others, or\n(z) has otherwise entered the public domain through lawful means.\n(iii) “Restricted Territory” means each county in Georgia where Calumet Bank operates a banking office at the Effective Time and\neach county contiguous to each of such counties.\n(iv) “Trade Secret” means information, without regard to form, including technical or nontechnical data, a formula, a pattern, a\ncompilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans or a list of\nactual or potential customers or suppliers, that is not commonly known by or available to the public and which information:\n(A) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper\nmeans by, other persons who can obtain economic value from its disclosure or use; and\n(B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.\n3\n(d) Director acknowledges that irreparable loss and injury would result to CBAN upon the breach of any of the covenants contained\nin this Section 1 and that damages arising out of such breach would be difficult to ascertain. Director hereby agrees that, in addition\nto all other remedies provided at law or in equity, CBAN may petition and obtain from a court of law or equity, without the necessity\nof proving actual damages and without posting any bond or other security, both temporary and permanent injunctive relief to prevent\na breach by Director of any covenant contained in this Section 1, and shall be entitled to an equitable accounting of all earnings,\nprofits and other benefits arising out of any such breach. In the event that the provisions of this Section 1 should ever be determined\nto exceed the time, geographic or other limitations permitted by applicable Law, then such provisions shall be modified so as to be\nenforceable to the maximum extent permitted by Law. If such provision(s) cannot be modified to be enforceable, the provision(s)\nshall be severed from this Agreement to the extent unenforceable. The remaining provisions and any partially enforceable provisions\nshall remain in full force and effect.\nSection 2. Term; Termination. This Agreement may be terminated at any time by the written consent of the parties hereto, and this\nAgreement shall be automatically terminated upon the earlier of (i) termination of the Merger Agreement; (ii) two (2) years following\nthe Effective Time or (iii) upon a Change in Control of CBAN (as defined in Schedule I). For the avoidance of doubt, the provisions\nof Section 1 shall only become operative upon the consummation of the Merger but, in such event, shall survive the consummation of\nthe Merger until the earlier of (a) two (2) years after the Effective Time or (b) upon a Change in Control of CBAN. Upon termination\nof this Agreement, no party shall have any further obligations or liabilities hereunder, except that termination of this Agreement will\nnot relieve a breaching party from liability for any breach of any provision of this Agreement occurring prior to the termination of\nthis Agreement.\nSection 3. Notices. All notices, requests and other communications hereunder to a party shall be in writing and shall be deemed\nproperly given if delivered (a) personally, (b) by registered or certified mail (return receipt requested), with adequate postage prepaid\nthereon, (c) by properly addressed electronic mail delivery (with confirmation of delivery receipt), or (d) by reputable courier service\nto such party at its address set forth below, or at such other address or addresses as such party may specify from time to time by\nnotice in like manner to the parties hereto. All notices shall be deemed effective upon delivery.\nIf to CBAN:\nColony Bankcorp, Inc.\n115 South Grant Street\nFitzgerald, GA 31750\nAttn: T. Heath Fountain, President & CEO\nE-mail: heath.fountain@colonybank.com\nIf to Director:\nThe address of Director’s principal residence as it\nappears in LBC’s records as of the date hereof, as\nsubsequently modified by Director’s provision of notice\nregarding the same to CBAN.\nSection 4. Governing Law; Jurisdiction. This Agreement shall be governed by, and interpreted and enforced in accordance with, the\ninternal, substantive laws of the State of Georgia, without regard for conflict of law provisions. Any civil action, counterclaim,\nproceeding or litigation arising out of or relating to this Agreement shall be brought in the courts of record of the\n4\nState of Georgia in Ben Hill County or the United States District Court, Middle District of Georgia. Each party consents to the\njurisdiction of such Georgia court in any such civil action, counterclaim, proceeding or litigation and waives any objection to the\nlaying of venue of any such civil action, counterclaim, proceeding or litigation in such Georgia court. Service of any court paper may\nbe effected on such party by mail, as provided in this letter, or in such other manner as may be provided under applicable Laws.\nSection 5. Modification and Waiver. No provision of this Agreement may be modified, waived or discharged unless such waiver,\nmodification or discharge is agreed to in writing signed by Director and CBAN. No waiver by either party hereto at any time of any\nbreach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other\nparty shall be deemed a waiver of dissimilar provisions or conditions at the same or any prior subsequent time.\nSection 6. Severability. In the event that any one or more provisions of this Agreement shall for any reason be held invalid, illegal or\nunenforceable in any respect, by any court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any\nother provisions of this Agreement and the parties shall use their commercially reasonable efforts to substitute a valid, legal and\nenforceable provision which, insofar as practical, implements the purposes and intents of this Agreement.\nSection 7. Counterparts. This Agreement may be executed and delivered by facsimile or by electronic data file and in one or more\ncounterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts\nhave been signed by each of the parties and delivered to the other party, it being understood that all parties need not sign the same\ncounterpart. Signatures delivered by facsimile or by electronic data file shall have the same effect as originals.\nSection 8. Entire Agreement. This Agreement represents the entire understanding of the parties hereto with reference to the\ntransactions contemplated hereby, and this Agreement supersedes any and all other oral or written agreements heretofore made.\nSection 9. Construction; Interpretation. Whenever the singular number is used in this Agreement and when required by the context,\nthe same shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter genders and vice\nversa. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by\nthe words “without limitation.” The headings in this Agreement are for convenience only and are in no way intended to describe,\ninterpret, define or limit the scope, extent or intent of this Agreement or any of its provisions.\n5\nIN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first written above.\nCOLONY BANKCORP, INC.\nBy:\nName:\nT. Heath Fountain\nTitle:\nPresident and Chief\nExecutive Officer\nDIRECTOR\nSignature Page – Non-Competition and Non-Disclosure Agreement
ee3842cc2378228c64d8e2b6159eef83.pdf	effective_date jurisdiction party term	Non-Disclosure Agreement\nThis Non-Disclosure Agreement (this “Agreement”) is made this ____ day of __________, 20__, by and among KBS SOR Acquisition\nIV, LLC, a Delaware limited liability company (“KBS SOR IV”), KBS SOR Acquisition XVI, LLC, a Delaware limited liability company\n(“KBS SOR XVI”), KBS Strategic Opportunity Limited Partnership, a Delaware limited partnership (“KBS LP”), KBS Strategic Opportunity\nREIT, Inc., a Maryland corporation (“KBS REIT”), KBS Capital Advisors LLC, a Delaware limited liability company (“KBS CA”), and\n__ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ , a ______________________________ (the “Recipient”) (KBS SOR IV, KBS SOR XVI, KBS LP, KBS REIT and\nKBS CA are collectively referred to as “KBS”; Recipient and KBS are sometimes referred to in this Agreement individually as a “Party” or\ncollectively as the “Parties”).\nKBS and Recipient wish to have discussions during which Recipient may be exposed to important business and/or technical information\nwhich is the property of KBS. Such disclosures may be in the form of written materials, by oral disclosure, or through learned observation, and\nmay include certain plans, designs, data, operations, financial positions and projections, business and technical information, trade secrets,\ntechniques, methods, supplier and vendor contacts and methods, development plans, acquisition plans, financing options and plans, profit\nmargins, services, proprietary information, and other confidential information. Much of this information is the result of substantial expenditures\nof time, money, technical expertise, and resources. And KBS considers this information confidential and/or a trade secret. The unauthorized use\nor disclosure of this information could cause significant harm to KBS’s business. For this reason and in consideration of the mutual covenants\ncontained in this Agreement and the disclosure of confidential information to Recipient, the Parties agree as follows:\n1. Definitions. For purposes of this Agreement, the following\ndefinitions apply:\n1.1\n“Confidential Information” means KBS’s non-public,\nconfidential and proprietary information and specifically includes, but\nis not necessarily limited to, the following: (A) plans, data, operations,\nfinancial positions, historical performance and projections, business and\ntechnical information, techniques, methods, supplier and vendor\ncontacts, development plans, acquisition plans, financing options and\nplans, profit margins, services, methodologies, techniques, designs\n(architectural or otherwise), specifications, tenant lists, tenant\ninformation, leasing plans or strategies, market information, marketing\nplans, personnel information, other financial information, business\nstrategies, rent and pricing policies, contractual relations with\ncustomers and suppliers, business acquisition plans, business\nopportunities, new personnel acquisition plans, and information, books,\nrecords, patent applications, proprietary information, and other\nconfidential information and know-how relating to the business of\nKBS; (B) information received by KBS from third parties under\nconfidential conditions, which information is identified by KBS as\nbeing subject to such conditions; and (C) KBS’s Trade Secrets.\nConfidential Information does not include any information that: (W) is\nor subsequently becomes publicly available without the Recipient’s\nbreach, directly or indirectly, of any obligation owed to KBS; (X)\nbecame known to the Recipient prior to KBS’s disclosure of such\ninformation to the Recipient as can\nbe proven by Recipient’s written records; (Y) became known to the\nRecipient from a source other than KBS other than by the breach of an\nobligation of confidentiality owed to KBS; or (Z) is independently\ndeveloped, without any use of KBS’s Confidential Information, by the\nRecipient as evidenced by its written records.\n1.2\n“Trade Secrets” means information that: derives economic\nvalue, actual or potential, from not being generally known to, or readily\nascertainable by proper means by, other persons who can obtain\neconomic value from its disclosure or use, and that is the subject of\nefforts that are reasonable under the circumstances to maintain its\nsecrecy.\n2. Obligations of Recipient. Recipient covenants and agrees that:\n2.1 It will hold all Confidential Information in trust and in the\nstrictest confidence and protect it in accordance with a standard of care\nthat shall be no less than the care it uses to protect its own information\nof like importance but in no event with less than reasonable care;\n2.2 It will not use, copy, or disclose, or permit any unauthorized\nperson access to, any Confidential Information without KBS’s\npermission, to be granted or withheld in KBS’s sole discretion, and\nprovided that any existing confidentiality notices are included in such\nreproductions or, if no such notices are included,\n1\n“Confidential” or some similar notice is stamped on the Confidential\nInformation;\n2.3 It may only disclose Confidential Information to its directors,\nofficers, employees, consultants, insurers, reinsurers, auditors,\nregulators, attorneys and agents (“Representatives”) provided such\nRepresentatives (i) have a need to know and (ii) are informed, directed\nand obligated by Recipient to treat such Confidential Information in\naccordance with the obligations of this Agreement. Recipient agrees to\nbe liable for any breach of an obligation hereunder by any of its\nRepresentatives;\n2.4\nAll Confidential Information, including all tangible\nembodiments, copies, reproductions and summaries thereof, and any\nother information and materials provided by KBS to the Recipient shall\nremain the sole and exclusive property of KBS.\n2.5 It shall immediately report to KBS any use or disclosure by\nthe Recipient’s employees or any other person of which the Recipient\nhas knowledge of any portion of the Confidential Information without\nauthorization from KBS, and will reasonably cooperate with KBS to\nhelp KBS regain possession of the Confidential Information and\nprevent its further unauthorized use.\n2.6 Upon the written request of KBS, Recipient will effect the\ndestruction of all memoranda, notes, records, tapes, documentation,\ndisks, manuals, files, originals, copies, reproductions and summaries (in\nany form or format, including without limitation, copies resident in long\nor short-term computer storage devices) of, to the extent they concern\nor contain Confidential Information that are in Recipient’s possession,\nwhether made or compiled by Recipient or furnished to Recipient by\nKBS; provided that Recipient, as a regulated entity, may retain the\nConfidential Information for the purposes of and for so long as required\nby any law, court or regulatory agency or authority or its internal\ncompliance procedures. The confidentiality obligations of this\nAgreement shall continue to apply to such Confidential Information\nretained by Recipient or its Representatives for so long as Recipient or\nits Representatives retains such Confidential Information.\n3. Obligation of Recipient. The Recipient’s obligations to maintain\nthe confidentiality of Confidential Information pursuant to Section 2\nspecifically include, but are not limited to, not disclosing Confidential\nInformation to any persons or entities engaged in a field of business\nsimilar to KBS or in the non-traded REIT industry.\n4. Exception. The obligations of confidentiality imposed by this\nAgreement do not apply to any Confidential Information that is\nrequired to be disclosed pursuant to operation of law or legal process,\ngovernmental regulation or court order. If Recipient receives a court\norder or other governmental or administrative decree of appropriate and\nsufficient jurisdiction requiring disclosure of KBS’s Confidential\nInformation, Recipient shall give KBS prompt notice prior to such\ndisclosure, if legally permitted, in order to permit KBS, at its expense,\nto seek a protective order in the case of a court order or other\ngovernmental or administrative decree. Recipient agrees to reasonably\ncooperate with KBS, at KBS’s expense and subject to applicable law, to\nlimit such disclosure. Recipient shall also reasonably cooperate with\nKBS in seeking a protective order subject to the payment by KBS of all\nout-of-pocket expenses incurred by the party providing such\ncooperation at the request of KBS. Recipient shall release only so much\nof KBS’s Confidential Information as Recipient’s counsel advises is\nrequired by such order.\n5. Duration. The restrictions on use and disclosure of Confidential\nInformation shall survive for a period of two (2) years. However, with\nrespect to Confidential Information that constitutes (i) a Trade Secret,\nor (ii) is retained by Recipient pursuant to the second clause of Section\n2.6(ii) above, the confidentiality obligations set forth in this Agreement\nshall continue in effect for so long as such Confidential Information\nremains a Trade Secret, or is retained by Recipient, as applicable.\n6. No Warranties. KBS makes no warranties, express or implied,\nunder this Agreement or by any Confidential Information disclosed\nto Recipient under this Agreement. All information disclosed\nhereunder is provided “as is.”\n7. No Licenses or Other Obligations. By disclosing information to\nthe Recipient, KBS does not grant any express or implied rights or\nlicenses to the Recipient with respect to any patents, copyrights,\ntrademarks, Trade Secrets or other proprietary rights of KBS. Nothing\nin this Agreement shall obligate KBS to disclose any information to\nRecipient or to engage in any other business activity with Recipient.\n8. Representations and Covenants. Recipient represents, covenants,\nacknowledges, and agrees that:\n8.1 It is aware and its Representatives have been advised that\nsecurities laws prohibit any person who has material non-public\ninformation about a public company from purchasing or selling\nsecurities of such company.\n2\n8.2\nThis Agreement (and any Confidential Information) is\ndelivered upon the express condition that Recipient will not publicize in\nany manner whatsoever by way of interviews, responses to questions or\ninquiries, press releases or otherwise, any aspect or proposed aspect of\nthe subject matter of the Confidential Information without prior notice\nto and approval of KBS, except as may otherwise be required by law.\n9. Threatened Breach; Breach; Remedies. In the event of any breach\nof this Agreement by Recipient, including, without limitation, the actual\nor threatened disclosure of Confidential Information without the prior\nexpress written consent of KBS, KBS will suffer an irreparable injury,\nsuch that no remedy at law will afford it adequate protection against, or\nappropriate compensation for, such injury. Accordingly, Recipient\nhereby agrees that KBS shall be entitled, without waiving any other\nrights or remedies, to seek specific performance of the Recipient’s\nobligations as well as such other injunctive relief as may be granted by\na court of competent jurisdiction.\n10. Miscellaneous.\n10.1 Severability. If any provision of this Agreement shall not\nbe valid for any reason, such provision shall be entirely severable from,\nand shall have no effect upon, the remainder of this Agreement. Any\nsuch invalid provision shall be subject to partial enforcement to the\nextent necessary to protect the interest of KBS.\n10.2\nGoverning Law; Forum. This Agreement shall be\nconstrued and controlled by the laws of the State of California without\nreference to the provisions governing conflict of laws, and both parties\nfurther consent to the exclusive jurisdiction by the state and federal\ncourts sitting in the State of California of any dispute arising out of or\nrelated to this Agreement.\n10.3\nEnforcement by Successors or Assigns;\nSurvivability. The covenants and agreements contained herein shall\ninure to the benefit of, and may be enforced by, any legal successors or\nassigns of each Party and shall survive any termination of the\nrelationship between the Parties, whether such termination is at the\ninstance of either Party, and regardless of the reasons therefore.\n10.4 Amendment; Waiver. This Agreement, or any provision\nhereof, shall not be waived, changed or terminated except by a writing\nsigned by an authorized officer of both Parties.\n10.5 Counterparts. This Agreement may be executed in one or\nmore counterparts, each of which will constitute an original, but all of\nwhich together constitute a single document. Any signature duly\naffixed to this Agreement and delivered by facsimile transmission shall\nbe deemed to have the same legal effect as the actual signature of the\nperson signing this Agreement, and any Party receiving delivery of a\nfacsimile copy of the signed Agreement may rely on such as having\nactually been signed.\n10.6 Merger. This Agreement constitutes the entire agreement\nbetween the parties with respect to the subject matter of this\nAgreement, except to the extent of existing non-disclosure agreements\nbetween the parties to which this Agreement supplements (but\nsupersedes to the extent of any inconsistency therein).\n10.7\nNo Implied Waiver. None of the provisions of this\nAgreement shall be deemed to have been waived by any act or\nacquiescence on the part of KBS, its agents, or employees, but only by\nan instrument in writing signed by an authorized officer of KBS. No\nwaiver of any provision of this Agreement shall constitute a waiver of\nany other provision(s) or of the same provision on another occasion.\n10.8 No Assignment. The Recipient may not assign its rights or\nobligations under this Agreement without the express written consent\nof KBS.\n10.9 Headings and Construction. The headings of Sections in\nthis Agreement are provided for convenience only and will not affect\nits construction or interpretation. All references to “Section” or\n“Sections” refer to the corresponding Section or Sections of this\nAgreement unless otherwise specified. All words used in this\nAgreement will be construed to be of such gender or number as the\ncircumstances require. Unless otherwise expressly provided, the word\n“including” does not limit the preceding words or terms.\n3\nThe parties hereto have executed this Agreement as of the date noted above.\nRecipient Name:\nKBS Capital Advisors LLC\nBy:\nBy:\nName (print):\nName (print):\nTitle:\nTitle:\n4	Non-Disclosure Agreement\n \nThis Non-Disclosure Agreement (this “Agreement”) is made this day of , 20__, by and among KBS SOR Acquisition\nIV, LLC, a Delaware limited liability company (“KBS SOR IV”), KBS SOR Acquisition XVI, LLC, a Delaware limited liability company\n(“KBS SOR XVI”), KBS Strategic Opportunity Limited Partnership, a Delaware limited partnership (“KBS LP”), KBS Strategic Opportunity\nREIT, Inc., a Maryland corporation (“KBS REIT”), KBS Capital Advisors LLC, a Delaware limited liability company (“KBS CA”), and\n, a (the “Recipient”) (KBS SOR IV, KBS SOR XVI, KBS LP, KBS REIT and\nKBS CA are collectively referred to as “KBS”; Recipient and KBS are sometimes referred to in this Agreement individually as a “Party” or\ncollectively as the “Parties”).\n \n \nKBS and Recipient wish to have discussions during which Recipient may be exposed to important business and/or technical information\nwhich is the property of KBS. Such disclosures may be in the form of written materials, by oral disclosure, or through learned observation, and\nmay include certain plans, designs, data, operations, financial positions and projections, business and technical information, trade secrets,\ntechniques, methods, supplier and vendor contacts and methods, development plans, acquisition plans, financing options and plans, profit\nmargins, services, proprietary information, and other confidential information. Much of this information is the result of substantial expenditures\nof time, money, technical expertise, and resources. And KBS considers this information confidential and/or a trade secret. The unauthorized use\nor disclosure of this information could cause significant harm to KBS’s business. For this reason and in consideration of the mutual covenants\ncontained in this Agreement and the disclosure of confidential information to Recipient, the Parties agree as follows:\n1. Definitions. For purposes of this Agreement, the following be proven by Recipient’s written records; (Y) became known to the\ndefinitions apply: Recipient from a source other than KBS other than by the breach of an\nobligation of confidentiality owed to KBS; or (Z) is independently\n1.1 “Confidential Information” means KBS’s non-public, developed, without any use of KBS’s Confidential Information, by the\nconfidential and proprietary information and specifically includes, but Recipient as evidenced by its written records.\nis not necessarily limited to, the following: (A) plans, data, operations,\nfinancial positions, historical performance and projections, business and 1.2  “Trade Secrets” means information that: derives economic\ntechnical information, techniques, methods, supplier and vendor value, actual or potential, from not being generally known to, or readily\ncontacts, development plans, acquisition plans, financing options and ascertainable by proper means by, other persons who can obtain\nplans, profit margins, services, methodologies, techniques, designs economic value from its disclosure or use, and that is the subject of\n(architectural or otherwise), specifications, tenant lists, tenant efforts that are reasonable under the circumstances to maintain its\ninformation, leasing plans or strategies, market information, marketing secrecy.\nplans, personnel information, other financial information, business\nstrategies, rent and pricing policies, contractual relations with 2. Obligations of Recipient. Recipient covenants and agrees that:\ncustomers and suppliers, business acquisition plans, business\nopportunities, new personnel acquisition plans, and information, books, 2.1 It will hold all Confidential Information in trust and in the\nrecords, patent applications, proprietary information, and other strictest confidence and protect it in accordance with a standard of care\nconfidential information and know-how relating to the business of that shall be no less than the care it uses to protect its own information\nKBS; (B) information received by KBS from third parties under of like importance but in no event with less than reasonable care;\nconfidential conditions, which information is identified by KBS as\nbeing subject to such conditions; and (C) KBS’s Trade Secrets. 2.2 It will not use, copy, or disclose, or permit any unauthorized\nConfidential Information does not include any information that: (W) is person access to, any Confidential Information without KBS’s\nor subsequently becomes publicly available without the Recipient’s permission, to be granted or withheld in KBS’s sole discretion, and\nbreach, directly or indirectly, of any obligation owed to KBS; (X) provided that any existing confidentiality notices are included in such\nbecame known to the Recipient prior to KBS’s disclosure of such reproductions or, if no such notices are included,\ninformation to the Recipient as can\n“Confidential” or some similar notice is stamped on the Confidential 4. Exception. The obligations of confidentiality imposed by this\nInformation; Agreement do not apply to any Confidential Information that is\nrequired to be disclosed pursuant to operation of law or legal process,\n2.3 It may only disclose Confidential Information to its directors, governmental regulation or court order. If Recipient receives a court\nofficers, employees, consultants, insurers, reinsurers, auditors, order or other governmental or administrative decree of appropriate and\nregulators, attorneys and agents (“Representatives”) provided such sufficient jurisdiction requiring disclosure of KBS’s Confidential\nRepresentatives (i) have a need to know and (ii) are informed, directed Information, Recipient shall give KBS prompt notice prior to such\nand obligated by Recipient to treat such Confidential Information in disclosure, if legally permitted, in order to permit KBS, at its expense,\naccordance with the obligations of this Agreement. Recipient agrees to to seek a protective order in the case of a court order or other\nbe liable for any breach of an obligation hereunder by any of its governmental or administrative decree. Recipient agrees to reasonably\nRepresentatives; cooperate with KBS, at KBS’s expense and subject to applicable law, to\nlimit such disclosure. Recipient shall also reasonably cooperate with\n24 All Confidential Information, including all tangible KBS in seeking a protective order subject to the payment by KBS of all\nembodiments, copies, reproductions and summaries thereof, and any out-of-pocket expenses incurred by the party providing such\nother information and materials provided by KBS to the Recipient shall cooperation at the request of KBS. Recipient shall release only so much\nremain the sole and exclusive property of KBS. of KBS’s Confidential Information as Recipient’s counsel advises is\nrequired by such order.\n2.5 It shall immediately report to KBS any use or disclosure by\nthe Recipient’s employees or any other person of which the Recipient 5. Duration. The restrictions on use and disclosure of Confidential\nhas knowledge of any portion of the Confidential Information without Information shall survive for a period of two (2) years. However, with\nauthorization from KBS, and will reasonably cooperate with KBS to respect to Confidential Information that constitutes (i) a Trade Secret,\nhelp KBS regain possession of the Confidential Information and or (ii) is retained by Recipient pursuant to the second clause of Section\nprevent its further unauthorized use. 2.6(ii) above, the confidentiality obligations set forth in this Agreement\nshall continue in effect for so long as such Confidential Information\n2.6 Upon the written request of KBS, Recipient will effect the remains a Trade Secret, or is retained by Recipient, as applicable.\ndestruction of all memoranda, notes, records, tapes, documentation,\ndisks, manuals, files, originals, copies, reproductions and summaries (in 6. No Warranties. KBS makes no warranties, express or implied,\nany form or format, including without limitation, copies resident in long under this Agreement or by any Confidential Information disclosed\nor short-term computer storage devices) of, to the extent they concern to Recipient under this Agreement. All information disclosed\nor contain Confidential Information that are in Recipient’s possession, hereunder is provided “as is.”\nwhether made or compiled by Recipient or furnished to Recipient by\nKBS; provided that Recipient, as a regulated entity, may retain the 7. No Licenses or Other Obligations. By disclosing information to\nConfidential Information for the purposes of and for so long as required the Recipient, KBS does not grant any express or implied rights or\nby any law, court or regulatory agency or authority or its internal licenses to the Recipient with respect to any patents, copyrights,\ncompliance procedures. The confidentiality obligations of this trademarks, Trade Secrets or other proprietary rights of KBS. Nothing\nAgreement shall continue to apply to such Confidential Information in this Agreement shall obligate KBS to disclose any information to\nretained by Recipient or its Representatives for so long as Recipient or Recipient or to engage in any other business activity with Recipient.\nits Representatives retains such Confidential Information.\n8. Representations and Covenants. Recipient represents, covenants,\n3. Obligation of Recipient. The Recipient’s obligations to maintain acknowledges, and agrees that:\nthe confidentiality of Confidential Information pursuant to Section 2\nspecifically include, but are not limited to, not disclosing Confidential =~ 8.1 It is aware and its Representatives have been advised that\nInformation to any persons or entities engaged in a field of business securities laws prohibit any person who has material non-public\nsimilar to KBS or in the non-traded REIT industry. information about a public company from purchasing or selling\nsecurities of such company.\n8.2 This Agreement (and any Confidential Information) is 10.5 Counterparts. This Agreement may be executed in one or\ndelivered upon the express condition that Recipient will not publicize in more counterparts, each of which will constitute an original, but all of\nany manner whatsoever by way of interviews, responses to questions or which together constitute a single document. Any signature duly\ninquiries, press releases or otherwise, any aspect or proposed aspect of affixed to this Agreement and delivered by facsimile transmission shall\nthe subject matter of the Confidential Information without prior notice be deemed to have the same legal effect as the actual signature of the\nto and approval of KBS, except as may otherwise be required by law.  person signing this Agreement, and any Party receiving delivery of a\nfacsimile copy of the signed Agreement may rely on such as having\n9. Threatened Breach; Breach; Remedies. In the event of any breach actually been signed.\nof this Agreement by Recipient, including, without limitation, the actual\nor threatened disclosure of Confidential Information without the prior 10.6 Merger. This Agreement constitutes the entire agreement\nexpress written consent of KBS, KBS will suffer an irreparable injury, between the parties with respect to the subject matter of this\nsuch that no remedy at law will afford it adequate protection against, or Agreement, except to the extent of existing non-disclosure agreements\nappropriate compensation for, such injury. Accordingly, Recipient between the parties to which this Agreement supplements (but\nhereby agrees that KBS shall be entitled, without waiving any other supersedes to the extent of any inconsistency therein).\nrights or remedies, to seek specific performance of the Recipient’s\nobligations as well as such other injunctive relief as may be granted by 10.7 No Implied Waiver. None of the provisions of this\na court of competent jurisdiction. Agreement shall be deemed to have been waived by any act or\nacquiescence on the part of KBS, its agents, or employees, but only by\n10. Miscellaneous. an instrument in writing signed by an authorized officer of KBS. No\nwaiver of any provision of this Agreement shall constitute a waiver of\n10.1  Severability. If any provision of this Agreement shall not any other provision(s) or of the same provision on another occasion.\nbe valid for any reason, such provision shall be entirely severable from,\nand shall have no effect upon, the remainder of this Agreement. Any 10.8 No Assignment. The Recipient may not assign its rights or\nsuch invalid provision shall be subject to partial enforcement to the obligations under this Agreement without the express written consent\nextent necessary to protect the interest of KBS. of KBS.\n10.2 Governing Law; Forum. This Agreement shall be 10.9 Headings and Construction. The headings of Sections in\nconstrued and controlled by the laws of the State of California without this Agreement are provided for convenience only and will not affect\nreference to the provisions governing conflict of laws, and both parties its construction or interpretation. All references to “Section” or\nfurther consent to the exclusive jurisdiction by the state and federal “Sections” refer to the corresponding Section or Sections of this\ncourts sitting in the State of California of any dispute arising out of or Agreement unless otherwise specified. All words used in this\nrelated to this Agreement. Agreement will be construed to be of such gender or number as the\ncircumstances require. Unless otherwise expressly provided, the word\n10.3 Enforcement by Successors or Assigns; “including” does not limit the preceding words or terms.\nSurvivability. The covenants and agreements contained herein shall\ninure to the benefit of, and may be enforced by, any legal successors or\nassigns of each Party and shall survive any termination of the\nrelationship between the Parties, whether such termination is at the\ninstance of either Party, and regardless of the reasons therefore.\n10.4 Amendment; Waiver. This Agreement, or any provision\nhereof, shall not be waived, changed or terminated except by a writing\nsigned by an authorized officer of both Parties.\nThe parties hereto have executed this Agreement as of the date noted above.\nRecipient Name: KBS Capital Advisors LLC\nBy: By:\nName (print): Name (print):\nTitle: Title:	Non-Disclosure Agreement\nThis Non-Disclosure Agreement (this "Agreement") is made this day of 20_ by and among KBS SOR Acquisition\nIV, LLC, a Delaware limited liability company ("KBS SOR IV"), KBS SOR Acquisition XVI, LLC, a Delaware limited liability company\n("KBS SOR XVI"), KBS Strategic Opportunity Limited Partnership, a Delaware limited partnership ("KBS LP"), KBS Strategic Opportunity\nREIT, Inc., a Maryland corporation ("KBS REIT"), KBS Capital Advisors LLC, a Delaware limited liability company ("KBS CA"), and\na (the "Recipient") (KBS SOR IV, KBS SOR XVI, KBS LP, KBS REIT and\nKBS CA are collectively referred to as "KBS"; Recipient and KBS are sometimes referred to in this Agreement individually as a "Party" or\ncollectively as the "Parties").\nKBS and Recipient wish to have discussions during which Recipient may be exposed to important business and/or technical information\nwhich is the property of KBS. Such disclosures may be in the form of written materials, by oral disclosure, or through learned observation, and\nmay include certain plans, designs, data, operations, financial positions and projections, business and technical information, trade secrets,\ntechniques, methods, supplier and vendor contacts and methods, development plans, acquisition plans, financing options and plans, profit\nmargins, services, proprietary information, and other confidential information. Much of this information is the result of substantial expenditures\nof time, money, technical expertise, and resources. And KBS considers this information confidential and/or a trade secret. The unauthorized\nuse\nor disclosure of this information could cause significant harm to KBS's business. For this reason and in consideration of the mutual covenants\ncontained in this Agreement and the disclosure of confidential information to Recipient, the Parties agree as follows:\n1.\nDefinitions. For purposes of this Agreement, the following be proven by Recipient's written records; (Y) became known to the\ndefinitions apply:\nRecipient from a source other than KBS other than by the breach of an\nobligation of confidentiality owed to KBS; or (Z) is independently\n1.1\n"Confidential Information" means KBS's non-public, developed, without any use of KBS's Confidential Information, by the\nconfidential and proprietary information and specifically includes, but Recipient as evidenced by its written records.\nis not necessarily limited to, the following: (A) plans, data, operations,\nfinancial positions, historical performance and projections, business and\n1.2 "Trade Secrets" means information that: derives economic\ntechnical information, techniques, methods, supplier and vendor value, actual or potential, from not being generally known to, or readily\ncontacts, development plans, acquisition plans, financing options and ascertainable by proper means by, other persons who can obtain\nplans, profit margins, services, methodologies, techniques, designs economic value from its disclosure or use, and that is the subject of\n(architectural or otherwise), specifications, tenant lists, tenant efforts that are reasonable under the circumstances to maintain its\ninformation, leasing plans or strategies, market information, marketing secrecy.\nplans, personnel information, other financial information, business\nstrategies, rent and pricing policies, contractual relations with 2. Obligations of Recipient. Recipient covenants and agrees that:\ncustomers and suppliers, business acquisition plans, business\nopportunities, new personnel acquisition plans, and information, books, 2.1 It will hold all Confidential Information in trust and in the\nrecords, patent applications, proprietary information, and other strictest confidence and protect it in accordance with a standard of care\nconfidentia information and know-how relating to the business of that shall be no less than the care it uses to protect its own information\nKBS; (B) information received by KBS from third parties under of like importance but in no event with less than reasonable care;\nconfidential conditions, which information is identified by KBS as\nbeing subject to such conditions; and (C) KBS's Trade Secrets. 2.2 It will not use, copy, or disclose, or permit any unauthorized\nConfidential Information does not include any information that: (W) is person access to, any Confidential Information without KBS's\nor subsequently becomes publicly available without the Recipient's permission, to be granted or withheld in KBS's sole discretion, and\nbreach, directly or indirectly, of any obligation owed to KBS; (X) provided that any existing confidentiality notices are included in such\nbecame known to the Recipient prior to KBS's disclosure of such reproductions or, if no such notices are included,\ninformation to the Recipient as can\n1\n"Confidential" or some similar notice is stamped on the Confidential 4. Exception. The obligations of confidentiality imposed by this\nInformation;\nAgreement do not apply to any Confidential Information that is\nrequired to be disclosed pursuant to operation of law or legal process,\n2.3\nIt may only disclose Confidential Information to its directors, governmental regulation or court order. If Recipient receives a court\nofficers, employees, consultants, insurers, reinsurers, auditors, order or other governmental or administrative decree of appropriate and\nregulators, attorneys and agents ("Representatives") provided such sufficient jurisdiction requiring disclosure of KBS's Confidential\nRepresentatives (i) have a need to know and (ii) are informed, directed Information, Recipient shall give KBS prompt notice prior to such\nand obligated by Recipient to treat such Confidentia Information in disclosure, if legally permitted, in order to permit KBS, at its expense,\naccordance with the obligations of this Agreement. Recipient agrees to to seek a protective order in the case of a court order\nor\nother\nbe liable for any breach of an obligation hereunder by any of its governmental or administrative decree. Recipient agrees to reasonably\nRepresentatives;\ncooperate with KBS, at KBS's expense and subject to applicable law, to\nlimit such disclosure. Recipient shall also reasonably cooperate with\n2.4\nAll Confidential Information, including all tangible KBS in seeking a protective order subject to the payment by KBS of all\nembodiments, copies, reproductions and summaries thereof, and any out-of-pocket expenses incurred by the party providing such\nother information and materials provided by KBS to the Recipient shall cooperation at the request of KBS. Recipient shall release only so much\nremain the sole and exclusive property of KBS.\nof KBS's Confidential Information as Recipient's counsel advises is\nrequired by such order.\n2.5\nIt shall immediately report to KBS any use or disclosure by\nthe Recipient's employees or any other person of which the Recipient 5. Duration. The restrictions on use and disclosure of Confidential\nhas knowledge of any portion of the Confidential Information without Information shall survive for a period of two (2) years. However, with\nauthorization from KBS, and will reasonably cooperate with KBS to respect to Confidential Information that constitutes (i) a Trade Secret,\nhelp KBS regain possession of the Confidential Information and or (ii) is retained by Recipient pursuant to the second clause of Section\nprevent its further unauthorized use.\n2.6(ii) above, the confidentiality obligations set forth in this Agreement\nshall continue in effect for so long as such Confidential Information\n2.6 Upon the written request of KBS, Recipient will effect the remains a Trade Secret, or is retained by Recipient, as applicable.\ndestruction of all memoranda, notes, records, tapes, documentation,\ndisks, manuals, files, originals, copies, reproductions and summaries (in 6. No Warranties. KBS makes no warranties, express or implied,\nany form or format, including without limitation, copies resident in long under this Agreement or by any Confidential Information disclosed\nor short-term computer storage devices) of, to the extent they concern to Recipient under this Agreement. All information disclosed\nor contain Confidential Information that are in Recipient's possession, hereunder is provided "as is."\nwhether made or compiled by Recipient or furnished to Recipient by\nKBS; provided that Recipient, as a regulated entity, may retain the 7. No Licenses or Other Obligations. By disclosing information to\nConfidential Information for the purposes of and for so long as required the Recipient, KBS does not grant any express or implied rights or\nby any law, court or regulatory agency or authority or its internal licenses to the Recipient with respect to any patents, copyrights,\ncompliance\nprocedures.\nThe\nconfidentiality\nobligations\nof\nthis\ntrademarks,\nTrade\nSecrets\nor\nother\nproprietary\nrights\nof\nKBS.\nNothing\nAgreement shall continue to apply to such Confidential Information in this Agreement shall obligate KBS to disclose any information to\nretained by Recipient or its Representatives for so long as Recipient or Recipient or to engage in any other business activity with Recipient.\nits Representatives retains such Confidential Information.\n8. Representations and Covenants. Recipient represents, covenants,\n3. Obligation of Recipient. The Recipient's obligations to maintain acknowledges, and agrees that:\nthe confidentiality of Confidential Information pursuant to Section 2\nspecifically include, but are not limited to, not disclosing Confidential\n8.1 It is aware and its Representatives have been advised that\nInformation to any persons or entities engaged in a field of business securities laws prohibit any person who has material non-public\nsimilar to KBS or in the non-traded REIT industry.\ninformation about a public company from purchasing or selling\nsecurities of such company.\n2\n8.2\nThis Agreement (and any Confidential Information) is 10.5\nCounterparts. This Agreement may be executed in one or\ndelivered upon the express condition that Recipient will not publicize in more counterparts, each of which will constitute an original, but all of\nany manner whatsoever by way of interviews, responses to questions or which together constitute a single document. Any signature\nduly\ninquiries, press releases or otherwise, any aspect or proposed aspect of affixed to this Agreement and delivered by facsimile transmission shall\nthe subject matter of the Confidential Information without prior notice be deemed to have the same legal effect as the actual signature of the\nto and approval of KBS, except as may otherwise be required by law. person signing this Agreement, and any Party receiving delivery of a\nfacsimile copy of the signed Agreement may rely on such as having\n9. Threatened Breach; Breach; Remedies. In the event of any breach actually been signed.\nof this Agreement by Recipient, including, without limitation, the actual\nor threatened disclosure of Confidential Information without the prior\n10.6 Merger. This Agreement constitutes the entire agreement\nexpress written consent of KBS, KBS will suffer an irreparable injury, between the parties with respect to the subject matter\nof\nthis\nsuch that no remedy at law will afford it adequate protection against, or Agreement, except to the extent of existing non-disclosure agreements\nappropriate compensation for, such injury. Accordingly, Recipient between the parties to which this Agreement supplements (but\nhereby agrees that KBS shall be entitled, without waiving any other supersedes to the extent of any inconsistency therein).\nrights or remedies, to seek specific performance of the Recipient's\nobligations as well as such other injunctive relief as may be granted by 10.7\nNo Implied Waiver. None of the provisions of this\na court of competent jurisdiction.\nAgreement shall be deemed to have been waived by any act or\nacquiescence on the part of KBS, its agents, or employees, but only by\n10. Miscellaneous.\nan instrument in writing signed by an authorized officer of KBS. No\nwaiver of any provision of this Agreement shall constitute a waiver of\n10.1 Severability. If any provision of this Agreement shall not any other provision(s) or of the same provision on another occasion.\nbe valid for any reason, such provision shall be entirely severable from,\nand shall have no effect upon, the remainder of this Agreement. Any\n10.8 No Assignment. The Recipient may not assign its rights or\nsuch invalid provision shall be subject to partial enforcement to the obligations under this Agreement without the express written consent\nextent necessary to protect the interest of KBS.\nof KBS\n10.2\nGoverning Law; Forum. This Agreement shall be 10.9 Headings and Construction. The headings of Sections\nin\nconstrued and controlled by the laws of the State of California without this Agreement are provided for convenience only and will not affect\nreference to the provisions governing conflict of laws, and both parties its construction or interpretation. All references to "Section" or\nfurther consent to the exclusive jurisdiction by the state and federal "Sections" refer to the corresponding Section or Sections of this\ncourts sitting in the State of California of any dispute arising out of or Agreement unless otherwise specified. All words used in this\nrelated to this Agreement.\nAgreement will be construed to be of such gender or number as the\ncircumstances require. Unless otherwise expressly provided, the word\n10.3\nEnforcement by Successors or Assigns; "including" does not limit the preceding words or terms.\nSurvivability. The covenants and agreements contained herein shall\ninure to the benefit of, and may be enforced by, any legal successors or\nassigns of each Party and shall survive any termination of the\nrelationship between the Parties, whether such termination is at the\ninstance of either Party, and regardless of the reasons therefore.\n10.4 Amendment; Waiver. This Agreement, or any provision\nhereof shall not be waived, changed or terminated except by a writing\nsigned by an authorized officer of both Parties.\n3\nThe parties hereto have executed this Agreement as of the date noted above.\nRecipient Name:\nKBS Capital Advisors LLC\nBy:\nBy:\nName (print):\nName (print):\nTitle:\nTitle:\n4	Non-Disclosure Agreement\nThis Non-Disclosure Agreement (this “Agreement”) is made this ____ day of __________, 20__, by and among KBS SOR Acquisition\nIV, LLC, a Delaware limited liability company (“KBS SOR IV”), KBS SOR Acquisition XVI, LLC, a Delaware limited liability company\n(“KBS SOR XVI”), KBS Strategic Opportunity Limited Partnership, a Delaware limited partnership (“KBS LP”), KBS Strategic Opportunity\nREIT, Inc., a Maryland corporation (“KBS REIT”), KBS Capital Advisors LLC, a Delaware limited liability company (“KBS CA”), and\n__ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ , a ______________________________ (the “Recipient”) (KBS SOR IV, KBS SOR XVI, KBS LP, KBS REIT and\nKBS CA are collectively referred to as “KBS”; Recipient and KBS are sometimes referred to in this Agreement individually as a “Party” or\ncollectively as the “Parties”).\nKBS and Recipient wish to have discussions during which Recipient may be exposed to important business and/or technical information\nwhich is the property of KBS. Such disclosures may be in the form of written materials, by oral disclosure, or through learned observation, and\nmay include certain plans, designs, data, operations, financial positions and projections, business and technical information, trade secrets,\ntechniques, methods, supplier and vendor contacts and methods, development plans, acquisition plans, financing options and plans, profit\nmargins, services, proprietary information, and other confidential information. Much of this information is the result of substantial expenditures\nof time, money, technical expertise, and resources. And KBS considers this information confidential and/or a trade secret. The unauthorized use\nor disclosure of this information could cause significant harm to KBS’s business. For this reason and in consideration of the mutual covenants\ncontained in this Agreement and the disclosure of confidential information to Recipient, the Parties agree as follows:\n1. Definitions. For purposes of this Agreement, the following\ndefinitions apply:\n1.1\n“Confidential Information” means KBS’s non-public,\nconfidential and proprietary information and specifically includes, but\nis not necessarily limited to, the following: (A) plans, data, operations,\nfinancial positions, historical performance and projections, business and\ntechnical information, techniques, methods, supplier and vendor\ncontacts, development plans, acquisition plans, financing options and\nplans, profit margins, services, methodologies, techniques, designs\n(architectural or otherwise), specifications, tenant lists, tenant\ninformation, leasing plans or strategies, market information, marketing\nplans, personnel information, other financial information, business\nstrategies, rent and pricing policies, contractual relations with\ncustomers and suppliers, business acquisition plans, business\nopportunities, new personnel acquisition plans, and information, books,\nrecords, patent applications, proprietary information, and other\nconfidential information and know-how relating to the business of\nKBS; (B) information received by KBS from third parties under\nconfidential conditions, which information is identified by KBS as\nbeing subject to such conditions; and (C) KBS’s Trade Secrets.\nConfidential Information does not include any information that: (W) is\nor subsequently becomes publicly available without the Recipient’s\nbreach, directly or indirectly, of any obligation owed to KBS; (X)\nbecame known to the Recipient prior to KBS’s disclosure of such\ninformation to the Recipient as can\nbe proven by Recipient’s written records; (Y) became known to the\nRecipient from a source other than KBS other than by the breach of an\nobligation of confidentiality owed to KBS; or (Z) is independently\ndeveloped, without any use of KBS’s Confidential Information, by the\nRecipient as evidenced by its written records.\n1.2\n“Trade Secrets” means information that: derives economic\nvalue, actual or potential, from not being generally known to, or readily\nascertainable by proper means by, other persons who can obtain\neconomic value from its disclosure or use, and that is the subject of\nefforts that are reasonable under the circumstances to maintain its\nsecrecy.\n2. Obligations of Recipient. Recipient covenants and agrees that:\n2.1 It will hold all Confidential Information in trust and in the\nstrictest confidence and protect it in accordance with a standard of care\nthat shall be no less than the care it uses to protect its own information\nof like importance but in no event with less than reasonable care;\n2.2 It will not use, copy, or disclose, or permit any unauthorized\nperson access to, any Confidential Information without KBS’s\npermission, to be granted or withheld in KBS’s sole discretion, and\nprovided that any existing confidentiality notices are included in such\nreproductions or, if no such notices are included,\n1\n“Confidential” or some similar notice is stamped on the Confidential\nInformation;\n2.3 It may only disclose Confidential Information to its directors,\nofficers, employees, consultants, insurers, reinsurers, auditors,\nregulators, attorneys and agents (“Representatives”) provided such\nRepresentatives (i) have a need to know and (ii) are informed, directed\nand obligated by Recipient to treat such Confidential Information in\naccordance with the obligations of this Agreement. Recipient agrees to\nbe liable for any breach of an obligation hereunder by any of its\nRepresentatives;\n2.4\nAll Confidential Information, including all tangible\nembodiments, copies, reproductions and summaries thereof, and any\nother information and materials provided by KBS to the Recipient shall\nremain the sole and exclusive property of KBS.\n2.5 It shall immediately report to KBS any use or disclosure by\nthe Recipient’s employees or any other person of which the Recipient\nhas knowledge of any portion of the Confidential Information without\nauthorization from KBS, and will reasonably cooperate with KBS to\nhelp KBS regain possession of the Confidential Information and\nprevent its further unauthorized use.\n2.6 Upon the written request of KBS, Recipient will effect the\ndestruction of all memoranda, notes, records, tapes, documentation,\ndisks, manuals, files, originals, copies, reproductions and summaries (in\nany form or format, including without limitation, copies resident in long\nor short-term computer storage devices) of, to the extent they concern\nor contain Confidential Information that are in Recipient’s possession,\nwhether made or compiled by Recipient or furnished to Recipient by\nKBS; provided that Recipient, as a regulated entity, may retain the\nConfidential Information for the purposes of and for so long as required\nby any law, court or regulatory agency or authority or its internal\ncompliance procedures. The confidentiality obligations of this\nAgreement shall continue to apply to such Confidential Information\nretained by Recipient or its Representatives for so long as Recipient or\nits Representatives retains such Confidential Information.\n3. Obligation of Recipient. The Recipient’s obligations to maintain\nthe confidentiality of Confidential Information pursuant to Section 2\nspecifically include, but are not limited to, not disclosing Confidential\nInformation to any persons or entities engaged in a field of business\nsimilar to KBS or in the non-traded REIT industry.\n4. Exception. The obligations of confidentiality imposed by this\nAgreement do not apply to any Confidential Information that is\nrequired to be disclosed pursuant to operation of law or legal process,\ngovernmental regulation or court order. If Recipient receives a court\norder or other governmental or administrative decree of appropriate and\nsufficient jurisdiction requiring disclosure of KBS’s Confidential\nInformation, Recipient shall give KBS prompt notice prior to such\ndisclosure, if legally permitted, in order to permit KBS, at its expense,\nto seek a protective order in the case of a court order or other\ngovernmental or administrative decree. Recipient agrees to reasonably\ncooperate with KBS, at KBS’s expense and subject to applicable law, to\nlimit such disclosure. Recipient shall also reasonably cooperate with\nKBS in seeking a protective order subject to the payment by KBS of all\nout-of-pocket expenses incurred by the party providing such\ncooperation at the request of KBS. Recipient shall release only so much\nof KBS’s Confidential Information as Recipient’s counsel advises is\nrequired by such order.\n5. Duration. The restrictions on use and disclosure of Confidential\nInformation shall survive for a period of two (2) years. However, with\nrespect to Confidential Information that constitutes (i) a Trade Secret,\nor (ii) is retained by Recipient pursuant to the second clause of Section\n2.6(ii) above, the confidentiality obligations set forth in this Agreement\nshall continue in effect for so long as such Confidential Information\nremains a Trade Secret, or is retained by Recipient, as applicable.\n6. No Warranties. KBS makes no warranties, express or implied,\nunder this Agreement or by any Confidential Information disclosed\nto Recipient under this Agreement. All information disclosed\nhereunder is provided “as is.”\n7. No Licenses or Other Obligations. By disclosing information to\nthe Recipient, KBS does not grant any express or implied rights or\nlicenses to the Recipient with respect to any patents, copyrights,\ntrademarks, Trade Secrets or other proprietary rights of KBS. Nothing\nin this Agreement shall obligate KBS to disclose any information to\nRecipient or to engage in any other business activity with Recipient.\n8. Representations and Covenants. Recipient represents, covenants,\nacknowledges, and agrees that:\n8.1 It is aware and its Representatives have been advised that\nsecurities laws prohibit any person who has material non-public\ninformation about a public company from purchasing or selling\nsecurities of such company.\n2\n8.2\nThis Agreement (and any Confidential Information) is\ndelivered upon the express condition that Recipient will not publicize in\nany manner whatsoever by way of interviews, responses to questions or\ninquiries, press releases or otherwise, any aspect or proposed aspect of\nthe subject matter of the Confidential Information without prior notice\nto and approval of KBS, except as may otherwise be required by law.\n9. Threatened Breach; Breach; Remedies. In the event of any breach\nof this Agreement by Recipient, including, without limitation, the actual\nor threatened disclosure of Confidential Information without the prior\nexpress written consent of KBS, KBS will suffer an irreparable injury,\nsuch that no remedy at law will afford it adequate protection against, or\nappropriate compensation for, such injury. Accordingly, Recipient\nhereby agrees that KBS shall be entitled, without waiving any other\nrights or remedies, to seek specific performance of the Recipient’s\nobligations as well as such other injunctive relief as may be granted by\na court of competent jurisdiction.\n10. Miscellaneous.\n10.1 Severability. If any provision of this Agreement shall not\nbe valid for any reason, such provision shall be entirely severable from,\nand shall have no effect upon, the remainder of this Agreement. Any\nsuch invalid provision shall be subject to partial enforcement to the\nextent necessary to protect the interest of KBS.\n10.2\nGoverning Law; Forum. This Agreement shall be\nconstrued and controlled by the laws of the State of California without\nreference to the provisions governing conflict of laws, and both parties\nfurther consent to the exclusive jurisdiction by the state and federal\ncourts sitting in the State of California of any dispute arising out of or\nrelated to this Agreement.\n10.3\nEnforcement by Successors or Assigns;\nSurvivability. The covenants and agreements contained herein shall\ninure to the benefit of, and may be enforced by, any legal successors or\nassigns of each Party and shall survive any termination of the\nrelationship between the Parties, whether such termination is at the\ninstance of either Party, and regardless of the reasons therefore.\n10.4 Amendment; Waiver. This Agreement, or any provision\nhereof, shall not be waived, changed or terminated except by a writing\nsigned by an authorized officer of both Parties.\n10.5 Counterparts. This Agreement may be executed in one or\nmore counterparts, each of which will constitute an original, but all of\nwhich together constitute a single document. Any signature duly\naffixed to this Agreement and delivered by facsimile transmission shall\nbe deemed to have the same legal effect as the actual signature of the\nperson signing this Agreement, and any Party receiving delivery of a\nfacsimile copy of the signed Agreement may rely on such as having\nactually been signed.\n10.6 Merger. This Agreement constitutes the entire agreement\nbetween the parties with respect to the subject matter of this\nAgreement, except to the extent of existing non-disclosure agreements\nbetween the parties to which this Agreement supplements (but\nsupersedes to the extent of any inconsistency therein).\n10.7\nNo Implied Waiver. None of the provisions of this\nAgreement shall be deemed to have been waived by any act or\nacquiescence on the part of KBS, its agents, or employees, but only by\nan instrument in writing signed by an authorized officer of KBS. No\nwaiver of any provision of this Agreement shall constitute a waiver of\nany other provision(s) or of the same provision on another occasion.\n10.8 No Assignment. The Recipient may not assign its rights or\nobligations under this Agreement without the express written consent\nof KBS.\n10.9 Headings and Construction. The headings of Sections in\nthis Agreement are provided for convenience only and will not affect\nits construction or interpretation. All references to “Section” or\n“Sections” refer to the corresponding Section or Sections of this\nAgreement unless otherwise specified. All words used in this\nAgreement will be construed to be of such gender or number as the\ncircumstances require. Unless otherwise expressly provided, the word\n“including” does not limit the preceding words or terms.\n3\nThe parties hereto have executed this Agreement as of the date noted above.\nRecipient Name:\nKBS Capital Advisors LLC\nBy:\nBy:\nName (print):\nName (print):\nTitle:\nTitle:\n4
eef1aedb64d13e1e32b1302378acd0dd.pdf	effective_date jurisdiction party term	Exhibit A\n[FORM OF] NONDISCLOSURE AGREEMENT\n[FOR DIRECTOR OR BOARD OBSERVER USE]\nThis Nondisclosure Agreement (this “Agreement”) by and between WMI Holdings Corp., a Washington corporation (“WMI” or the\n“Company”), and [[Insert Director ’s Name] (“Director”, and together with the Company, each a “Party” and collectively, the “Parties”)]\n[[Insert Observer ’s Name] (“Observer”, and together with the Company, each a “Party” and collectively, the “Parties”)], is dated as of\n[\n], 2014.\n1. General. In connection with [Director serving on the][Observer attending meetings of the] Board of Directors of the Company, [Director]\n[Observer] acknowledges that he or she will receive, from time to time, certain “Confidential Material” (as defined in Section 2 below).\n2. Definitions. The term “Confidential Material” means information concerning the Company or its personnel, board dynamics, business,\nfinancial condition, operations, assets or liabilities, whether disclosed orally or disclosed or accessed in written, electronic or other form or\nmedia, whether or not marked, designated or otherwise identified as “confidential.” The term Confidential Material does not include information\nwhich (i) is generally available to the public other than as a result of a disclosure by [Director][Observer] in breach of this Agreement, (ii) was\nwithin [Director ’s][Observer’s] possession prior to its being furnished to [Director][Observer], provided that the source of such information was\nnot known by [Director][Observer] to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of\nconfidentiality to, the Company with respect to such information, or (iii) is or becomes available to [Director][Observer] on a non-confidential\nbasis from a source other than the Company, provided that such source is not known by [Director][Observer] to be bound by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such information. [Director]\n[Observer] shall ensure that any of its representatives who receive Confidential Material fully understand the terms of this Agreement and\n[Director][Observer] shall take all commercially reasonable steps to protect the Confidential Material against disclosure, misappropriation,\nmisuse, loss or theft in violation of this Agreement.\nAll Confidential Material is and shall remain the property of the Company. Upon request of the Company, the [Director][Observer] shall\nreturn or destroy, in the [Director ’s][Observer ’s] sole discretion, all Confidential Material in his or her possession and confirm the same to the\nCompany in writing; provided, that the [Director][Observer] shall be permitted to retain Confidential Material to comply with applicable legal\nand/or regulatory requirements, and provided, further, that electronic records maintained in archival form are required to be destroyed only to the\nextent reasonably practicable.\n3. Use of Confidential Material. [Director shall use the Confidential Material solely for the purpose of fulfilling his or her board of director\nduties and responsibilities and shall keep the Confidential Material confidential in accordance with the terms hereof.]1\n1 Solely for Director confidentiality agreement.\n1\n[Director][Observer] will not disclose any of the Confidential Material in any manner whatsoever; provided, however, that any of such\ninformation may be disclosed:\n(i) for so long as [Director][Observer] is employed by or as an advisor to Kohlberg Kravis Roberts & Co. L.P. (“KKR”) or one of its\nsubsidiaries, to KKR and its affiliates; provided that KKR executes a confidentiality agreement in substantially the form hereto (the “KKR\nConfidentiality Agreement” 2); provided, further, that KKR and the [Director][Observer] shall only be permitted to share Confidential Material\nwith affiliates of KKR to the extent that such affiliates are advised of the confidentiality and use obligations in the KKR Confidentiality\nAgreement and agree with KKR to be bound by such provisions; provided, still further, that KKR will be responsible for any breach by its\naffiliates of the confidentiality and use obligations therein, or\n(ii) as required by law or legal process or required or requested by applicable regulatory authority (including, for the avoidance of doubt,\npursuant to an audit or examination by a regulator, bank examiner or self-regulatory organization including in the course of routine supervisory\nexamination or regulatory oversight by banking regulatory authorities with jurisdiction over KKR and its affiliates); provided, that if the\n[Director][Observer] or KKR or any of its affiliates are so requested or required to disclose any Confidential Material, the [Director][Observer]\nor KKR, as appropriate, will, to the extent legally permissible, notify the Company promptly of the existence, terms and circumstances\nsurrounding such a request or requirement so that the Company may, in its sole discretion, seek a protective order or other appropriate remedy\nand/or waive compliance with the terms of this Agreement (it being understood that no such notice will be required if the [Director][Observer] or\nKKR or any of its affiliates are requested or required to disclose Confidential Material in the course of routine supervisory examinations or\nregulatory oversight by banking regulatory authorities with jurisdiction over KKR or any such affiliate); provided, further, that the [Director]\n[Observer] and KKR or any of its affiliates will not oppose, and upon the Company’s request and at the Company’s expense, will consult with\nthe Company on seeking a protective order or other remedy; provided, still further, that, if in the absence of a protective order or other remedy or\nthe receipt of a waiver from the Company, the [Director][Observer] or KKR or any of its affiliates is, nonetheless, legally required based upon\nthe advice of KKR’s or such affiliate’s counsel to disclose any Confidential Information, the [Director][Observer] or KKR or any of its affiliates,\nas applicable, may make such disclosure without liability under this Agreement, provided that the [Director][Observer] or KKR or any of its\naffiliates, as applicable, (x) furnishes only that portion of the Confidential Information that is legally required based upon the advice of KKR’s or\nsuch affiliate’s counsel to be disclosed, (y) gives the Company notice of the information to be disclosed as promptly as is practicable (except, for\nthe avoidance of doubt, in the case of routine supervisory examinations or regulatory oversight by banking regulatory authorities with\njurisdiction over KKR or any such affiliate) and (z) uses commercially reasonable efforts to consult with the Company, at the Company’s request\nand expense, on seeking an appropriate protective order or other reliable assurance that confidential treatment will be accorded to all such\nConfidential Material.\n2 KKR Confi to include the following: “For the avoidance of doubt, the Confidentiality Agreement dated as of May 29, 2013 (the “Existing\nConfidentiality Agreement”) between KKR & Co. L.P. and the Company shall not apply to any information provided to KKR pursuant to this\nAgreement.”\n2\n[If Director willfully breaches this Agreement or KKR or one of its controlled affiliates willfully breaches the KKR Confidentiality\nAgreement, Director will tender his or her resignation from the Board and its committees upon the request of the Board.]\n4. Governing Law; Consent to Jurisdiction. This Agreement shall be deemed to be made in and in all respects shall be interpreted,\nconstrued and governed by and in accordance with the laws of the State of New York (except to the extent that mandatory provisions of\nWashington law are applicable).\n5. Term. This Agreement and the provisions of this Agreement shall terminate on the first anniversary following the date that is the earlier\nof (i) the date that [Director][Observer] ceases to be [a director][an observer] of the Company and (ii) the date that [Director][Observer] ceases to\nbe employed by or an advisor to KKR and its affiliates.\n6. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter.\n7. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which shall be\ndeemed to constitute a single instrument.\n[Remainder of Page Intentionally Left Blank]\n3\nIN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be signed by its duly authorized representatives as of the\ndate written below.\nWMI Holdings Corp.\n[DIRECTOR][OBSERVER]\nADDRESS FOR NOTICE:\nADDRESS FOR NOTICE:\n[\n]\nc/o Kohlberg Kravis Roberts & Co. L .P.\n9 West 57th Street\nBy:\nSuite 4200\nName:\nNew York, New York 10019\nTitle:\nBy:\nName:\nTitle:\n[Signature Page to Nondisclosure Agreement]	Exhibit A\n[FORM OF] NONDISCLOSURE AGREEMENT\n[FOR DIRECTOR OR BOARD OBSERVER USE]\nThis Nondisclosure Agreement (this “Agreement”) by and between WMI Holdings Corp., a Washington corporation (“WMI” or the\n“Company”), and [[Insert Director’s Name] (“Director”, and together with the Company, each a “Party” and collectively, the “Parties”)]\n[[Insert Observer’s Name] (“Observer”, and together with the Company, each a “Party” and collectively, the “Parties”)], is dated as of\n[ 1, 2014.\n1. General. In connection with [Director serving on the][Observer attending meetings of the] Board of Directors of the Company, [Director]\n[Observer] acknowledges that he or she will receive, from time to time, certain “Confidential Material” (as defined in Section 2 below).\n2. Definitions. The term “Confidential Material” means information concerning the Company or its personnel, board dynamics, business,\nfinancial condition, operations, assets or liabilities, whether disclosed orally or disclosed or accessed in written, electronic or other form or\nmedia, whether or not marked, designated or otherwise identified as “confidential.” The term Confidential Material does not include information\nwhich (i) is generally available to the public other than as a result of a disclosure by [Director][Observer] in breach of this Agreement, (ii) was\nwithin [Director’s][Observer’s] possession prior to its being furnished to [Director][Observer], provided that the source of such information was\nnot known by [Director][Observer] to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of\nconfidentiality to, the Company with respect to such information, or (iii) is or becomes available to [Director][Observer] on a non-confidential\nbasis from a source other than the Company, provided that such source is not known by [Director][Observer] to be bound by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such information. [Director]\n[Observer] shall ensure that any of its representatives who receive Confidential Material fully understand the terms of this Agreement and\n[Director][Observer] shall take all commercially reasonable steps to protect the Confidential Material against disclosure, misappropriation,\nmisuse, loss or theft in violation of this Agreement.\nAll Confidential Material is and shall remain the property of the Company. Upon request of the Company, the [Director][Observer] shall\nreturn or destroy, in the [Director’s][Observer’s] sole discretion, all Confidential Material in his or her possession and confirm the same to the\nCompany in writing; provided, that the [Director][Observer] shall be permitted to retain Confidential Material to comply with applicable legal\nand/or regulatory requirements, and provided, further, that electronic records maintained in archival form are required to be destroyed only to the\nextent reasonably practicable.\n3. Use of Confidential Material. [Director shall use the Confidential Material solely for the purpose of fulfilling his or her board of director\nduties and responsibilities and shall keep the Confidential Material confidential in accordance with the terms hereof.]1\n1 Solely for Director confidentiality agreement.\n[Director][Observer] will not disclose any of the Confidential Material in any manner whatsoever; provided, however, that any of such\ninformation may be disclosed:\n(i) for so long as [Director][Observer] is employed by or as an advisor to Kohlberg Kravis Roberts & Co. L.P. (“KKR”) or one of its\nsubsidiaries, to KKR and its affiliates; provided that KKR executes a confidentiality agreement in substantially the form hereto (the “KKR\nConfidentiality Agreement” 2); provided, further, that KKR and the [Director][Observer] shall only be permitted to share Confidential Material\nwith affiliates of KKR to the extent that such affiliates are advised of the confidentiality and use obligations in the KKR Confidentiality\nAgreement and agree with KKR to be bound by such provisions; provided, still further, that KKR will be responsible for any breach by its\naffiliates of the confidentiality and use obligations therein, or\n(ii) as required by law or legal process or required or requested by applicable regulatory authority (including, for the avoidance of doubt,\npursuant to an audit or examination by a regulator, bank examiner or self-regulatory organization including in the course of routine supervisory\nexamination or regulatory oversight by banking regulatory authorities with jurisdiction over KKR and its affiliates); provided, that if the\n[Director][Observer] or KKR or any of its affiliates are so requested or required to disclose any Confidential Material, the [Director][Observer]\nor KKR, as appropriate, will, to the extent legally permissible, notify the Company promptly of the existence, terms and circumstances\nsurrounding such a request or requirement so that the Company may, in its sole discretion, seek a protective order or other appropriate remedy\nand/or waive compliance with the terms of this Agreement (it being understood that no such notice will be required if the [Director][Observer] or\nKKR or any of its affiliates are requested or required to disclose Confidential Material in the course of routine supervisory examinations or\nregulatory oversight by banking regulatory authorities with jurisdiction over KKR or any such affiliate); provided, further, that the [Director]\n[Observer] and KKR or any of its affiliates will not oppose, and upon the Company’s request and at the Company’s expense, will consult with\nthe Company on seeking a protective order or other remedy; provided, still further, that, if in the absence of a protective order or other remedy or\nthe receipt of a waiver from the Company, the [Director][Observer] or KKR or any of its affiliates is, nonetheless, legally required based upon\nthe advice of KKR’s or such affiliate’s counsel to disclose any Confidential Information, the [Director][Observer] or KKR or any of its affiliates,\nas applicable, may make such disclosure without liability under this Agreement, provided that the [Director][Observer] or KKR or any of its\naffiliates, as applicable, (x) furnishes only that portion of the Confidential Information that is legally required based upon the advice of KKR’s or\nsuch affiliate’s counsel to be disclosed, (y) gives the Company notice of the information to be disclosed as promptly as is practicable (except, for\nthe avoidance of doubt, in the case of routine supervisory examinations or regulatory oversight by banking regulatory authorities with\njurisdiction over KKR or any such affiliate) and (z) uses commercially reasonable efforts to consult with the Company, at the Company’s request\nand expense, on seeking an appropriate protective order or other reliable assurance that confidential treatment will be accorded to all such\nConfidential Material.\n2 KKR Confi to include the following: “For the avoidance of doubt, the Confidentiality Agreement dated as of May 29, 2013 (the “Existing\nConfidentiality Agreement”) between KKR & Co. L.P. and the Company shall not apply to any information provided to KKR pursuant to this\nAgreement.”\n[If Director willfully breaches this Agreement or KKR or one of its controlled affiliates willfully breaches the KKR Confidentiality\nAgreement, Director will tender his or her resignation from the Board and its committees upon the request of the Board.]\n4. Governing Law; Consent to Jurisdiction. This Agreement shall be deemed to be made in and in all respects shall be interpreted,\nconstrued and governed by and in accordance with the laws of the State of New York (except to the extent that mandatory provisions of\nWashington law are applicable).\n5. Term. This Agreement and the provisions of this Agreement shall terminate on the first anniversary following the date that is the earlier\nof (i) the date that [Director][Observer] ceases to be [a director][an observer] of the Company and (ii) the date that [Director][Observer] ceases to\nbe employed by or an advisor to KKR and its affiliates.\n6. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter.\n \n7. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which shall be\ndeemed to constitute a single instrument.\n[Remainder of Page Intentionally Left Blank]\n3\nIN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be signed by its duly authorized representatives as of the\ndate written below.\nWMI Holdings Corp. [DIRECTOR][OBSERVER]\nADDRESS FOR NOTICE: ADDRESS FOR NOTICE:\n[ ] c/o Kohlberg Kravis Roberts & Co. L.P.\n9 West 57th Street\nBy: Suite 4200\nName: New York, New York 10019\nTitle:\nBy:\nName:\nTitle:\n[Signature Page to Nondisclosure Agreement]	Exhibit A\n[FORM OF] NONDISCLOSURE AGREEMENT\n[FOR DIRECTOR OR BOARD OBSERVER USE]\nThis Nondisclosure Agreement (this "Agreement") by and between WMI Holdings Corp., a Washington corporation ("WMI" or the\n"Company"), and [[Insert Director's Name] ("Director", and together with the Company, each a "Party" and collectively, the "Parties")]\n[[Insert Observer's Name] ("Observer", and together with the Company, each a "Party" and collectively, the "Parties")], is dated as of\n[\n], 2014.\n1. General. In connection with [Director serving on the ][Observer attending meetings of the] Board of Directors of the Company, [Director]\n[Observer] acknowledges that he or she will receive, from time to time, certain "Confidential Material" (as defined in Section 2 below).\n2. Definitions. The term "Confidential Material" means information concerning the Company or its personnel, board dynamics, business,\nfinancial condition, operations, assets or liabilities, whether disclosed orally or disclosed or accessed in written, electronic or other form or\nmedia, whether or not marked, designated or otherwise identified as "confidential." The term Confidential Material does not include information\nwhich (i) is generally available to the public other than as a result of a disclosure by [Director][Observer] in breach of this Agreement, (ii) was\nwithin [Director's][Observer's] possession prior to its being furnished to irector][Observer], provided that the source of such information was\nnot known by [Director][Observer to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of\nconfidentiality to, the Company with respect to such information, or (iii) is or becomes available to Director][Observer on a non-confidential\nbasis from a source other than the Company, provided that such source is not known by Director][Observer] to be bound by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such information. [Director]\n[Observer] shall ensure that any of its representatives who receive Confidential Material fully understand the terms of this Agreement and\n[Director][Observer] shall take all commercially reasonable steps to protect the Confidential Material against disclosure, misappropriation,\nmisuse, loss or theft in violation of this Agreement.\nAll Confidential Material is and shall remain the property of the Company. Upon request of the Company, the Director][Obser [Observer] shall\nreturn or destroy, in the [Director's][Observer's sole discretion, all Confidential Material in his or her possession and confirm the same to the\nCompany in writing; provided, that the Director][Observer] shall be permitted to retain Confidential Material to comply with applicable legal\nand/or regulatory requirements, and provided, further, that electronic records maintained in archival form are required to be destroyed only to\nthe\nextent reasonably practicable.\n3. Use of Confidential Material. [Director shall use the Confidential Material solely for the purpose of fulfilling his or her board of director\nduties and responsibilities and shall keep the Confidential Material confidential in accordance with the terms hereof.]1\n1 Solely for Director confidentiality agreement.\n1\nDirector][Observer. will not disclose any of the Confidential Material in any manner whatsoever; provided, however, that any of such\ninformation may be disclosed:\n(i) for so long as irector][Observer] is employed by or as an advisor to Kohlberg Kravis Roberts & Co. L.P. ("KKR") or one of its\nsubsidiaries, to KKR and its affiliates; provided that KKR executes a confidentiality agreement in substantially the form hereto (the "KKR\nConfidentiality Agreement" 2); provided, further, that KKR and the [Director][Observer] shall only be permitted to share Confidential Material\nwith affiliates of KKR to the extent that such affiliates are advised of the confidentiality and use obligations in the KKR Confidentiality\nAgreement and agree with KKR to be bound by such provisions; provided, still further, that KKR will be responsible for any breach by its\naffiliates of the confidentiality and use obligations therein, or\n(ii) as required by law or legal process or required or requested by applicable regulatory authority (including, for the avoidance of doubt,\npursuant to an audit or examination by a regulator, bank examiner or self-regulatory organization including in the course of routine supervisory\nexamination or regulatory oversight by banking regulatory authorities with jurisdiction over KKR and its affiliates); provided, that if the\n[Director][Observer] or KKR or any of its affiliates are so requested or required to disclose any Confidential Material, the Director][Observer]\nor KKR, as appropriate, will, to the extent legally permissible, notify the Company promptly of the existence, terms and circumstances\nsurrounding such a request or requirement So that the Company may, in its sole discretion, seek a protective order or other appropriate remedy\nand/or\nwaive compliance with the terms of this Agreement (it being understood that no such notice will be required if the Director][Observer]\nor\nKKR or any of its affiliates are requested or required to disclose Confidential Material in the course of routine supervisory examinations or\nregulatory oversight by banking regulatory authorities with jurisdiction over KKR or any such affiliate); provided, further, that the [Director]\n[Observer] and KKR or any of its affiliates will not oppose, and upon the Company's request and at the Company's expense, will consult with\nthe Company on seeking a protective order or other remedy; provided, still further, that, if in the absence of a protective order or other remedy or\nthe receipt of a waiver from the Company, the Director][Observer] or KKR or any of its affiliates is, nonetheless, legally required based upon\nthe advice of KKR'S or such affiliate's counsel to disclose any Confidential Information, the ctor][Observer or KKR or any of its affiliates,\nas applicable, may make such disclosure without liability under this Agreement, provided that the [Director][Observer or KKR or any of its\naffiliates, as applicable, (x) furnishes only that portion of the Confidential Information that is legally required based upon the advice of KKR'S or\nsuch affiliate's counsel to be disclosed, (y) gives the Company notice of the information to be disclosed as promptly as is practicable (except, for\nthe avoidance of doubt, in the case of routine supervisory examinations or regulatory oversight by banking regulatory authorities with\njurisdiction over KKR or any such affiliate) and (z) uses commercially reasonable efforts to consult with the Company, at the Company's request\nand expense, on seeking an appropriate protective order or other reliable assurance that confidential treatment will be accorded to all such\nConfidential Material.\n2 KKR Confi to include the following: "For the avoidance of doubt, the Confidentiality Agreement dated as of May 29, 2013 (the "Existing\nConfidentiality Agreement") between KKR & Co. L.P. and the Company shall not apply to any information provided to KKR pursuant to this\nAgreement."\n2\n[If Director willfully breaches this Agreement or KKR or one of its controlled affiliates willfully breaches the KKR Confidentiality\nAgreement, Director will tender his or her resignation from the Board and its committees upon the request of the Board.]\n4. Governing Law; Consent to Jurisdiction. This Agreement shall be deemed to be made in and in all respects shall be interpreted,\nconstrued and governed by and in accordance with the laws of the State of New York (except to the extent that mandatory provisions of\nWashington law are applicable).\n5. Term. This Agreement and the provisions of this Agreement shall terminate on the first anniversary following the date that is the earlier\nof\n(i) the date that Director][Observer ceases to be [a director] [an observer] of the Company and (ii) the date that [Director][Observer ceases to\nbe employed by or an advisor to KKR and its affiliates.\n6.\nEntire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter.\n7. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which shall be\ndeemed to constitute a single instrument.\n[Remainder of Page Intentionally Left Blank]\n3\nIN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be signed by its duly authorized representatives as of the\ndate written below.\nWMI Holdings Corp.\n[DIRECTORI[OBSERVER]\nADDRESS FOR NOTICE:\nADDRESS FOR NOTICE:\n[\n]\nc/o Kohlberg Kravis Roberts & Co. L.P.\n9 West 57th Street\nBy:\nSuite 4200\nName:\nNew York, New York 10019\nTitle:\nBy:\nName:\nTitle:\n[Signature Page to Nondisclosure Agreement]	Exhibit A\n[FORM OF] NONDISCLOSURE AGREEMENT\n[FOR DIRECTOR OR BOARD OBSERVER USE]\nThis Nondisclosure Agreement (this “Agreement”) by and between WMI Holdings Corp., a Washington corporation (“WMI” or the\n“Company”), and [[Insert Director ’s Name] (“Director”, and together with the Company, each a “Party” and collectively, the “Parties”)]\n[[Insert Observer ’s Name] (“Observer”, and together with the Company, each a “Party” and collectively, the “Parties”)], is dated as of\n[\n], 2014.\n1. General. In connection with [Director serving on the][Observer attending meetings of the] Board of Directors of the Company, [Director]\n[Observer] acknowledges that he or she will receive, from time to time, certain “Confidential Material” (as defined in Section 2 below).\n2. Definitions. The term “Confidential Material” means information concerning the Company or its personnel, board dynamics, business,\nfinancial condition, operations, assets or liabilities, whether disclosed orally or disclosed or accessed in written, electronic or other form or\nmedia, whether or not marked, designated or otherwise identified as “confidential.” The term Confidential Material does not include information\nwhich (i) is generally available to the public other than as a result of a disclosure by [Director][Observer] in breach of this Agreement, (ii) was\nwithin [Director ’s][Observer’s] possession prior to its being furnished to [Director][Observer], provided that the source of such information was\nnot known by [Director][Observer] to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of\nconfidentiality to, the Company with respect to such information, or (iii) is or becomes available to [Director][Observer] on a non-confidential\nbasis from a source other than the Company, provided that such source is not known by [Director][Observer] to be bound by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such information. [Director]\n[Observer] shall ensure that any of its representatives who receive Confidential Material fully understand the terms of this Agreement and\n[Director][Observer] shall take all commercially reasonable steps to protect the Confidential Material against disclosure, misappropriation,\nmisuse, loss or theft in violation of this Agreement.\nAll Confidential Material is and shall remain the property of the Company. Upon request of the Company, the [Director][Observer] shall\nreturn or destroy, in the [Director ’s][Observer ’s] sole discretion, all Confidential Material in his or her possession and confirm the same to the\nCompany in writing; provided, that the [Director][Observer] shall be permitted to retain Confidential Material to comply with applicable legal\nand/or regulatory requirements, and provided, further, that electronic records maintained in archival form are required to be destroyed only to the\nextent reasonably practicable.\n3. Use of Confidential Material. [Director shall use the Confidential Material solely for the purpose of fulfilling his or her board of director\nduties and responsibilities and shall keep the Confidential Material confidential in accordance with the terms hereof.]1\n1 Solely for Director confidentiality agreement.\n1\n[Director][Observer] will not disclose any of the Confidential Material in any manner whatsoever; provided, however, that any of such\ninformation may be disclosed:\n(i) for so long as [Director][Observer] is employed by or as an advisor to Kohlberg Kravis Roberts & Co. L.P. (“KKR”) or one of its\nsubsidiaries, to KKR and its affiliates; provided that KKR executes a confidentiality agreement in substantially the form hereto (the “KKR\nConfidentiality Agreement” 2); provided, further, that KKR and the [Director][Observer] shall only be permitted to share Confidential Material\nwith affiliates of KKR to the extent that such affiliates are advised of the confidentiality and use obligations in the KKR Confidentiality\nAgreement and agree with KKR to be bound by such provisions; provided, still further, that KKR will be responsible for any breach by its\naffiliates of the confidentiality and use obligations therein, or\n(ii) as required by law or legal process or required or requested by applicable regulatory authority (including, for the avoidance of doubt,\npursuant to an audit or examination by a regulator, bank examiner or self-regulatory organization including in the course of routine supervisory\nexamination or regulatory oversight by banking regulatory authorities with jurisdiction over KKR and its affiliates); provided, that if the\n[Director][Observer] or KKR or any of its affiliates are so requested or required to disclose any Confidential Material, the [Director][Observer]\nor KKR, as appropriate, will, to the extent legally permissible, notify the Company promptly of the existence, terms and circumstances\nsurrounding such a request or requirement so that the Company may, in its sole discretion, seek a protective order or other appropriate remedy\nand/or waive compliance with the terms of this Agreement (it being understood that no such notice will be required if the [Director][Observer] or\nKKR or any of its affiliates are requested or required to disclose Confidential Material in the course of routine supervisory examinations or\nregulatory oversight by banking regulatory authorities with jurisdiction over KKR or any such affiliate); provided, further, that the [Director]\n[Observer] and KKR or any of its affiliates will not oppose, and upon the Company’s request and at the Company’s expense, will consult with\nthe Company on seeking a protective order or other remedy; provided, still further, that, if in the absence of a protective order or other remedy or\nthe receipt of a waiver from the Company, the [Director][Observer] or KKR or any of its affiliates is, nonetheless, legally required based upon\nthe advice of KKR’s or such affiliate’s counsel to disclose any Confidential Information, the [Director][Observer] or KKR or any of its affiliates,\nas applicable, may make such disclosure without liability under this Agreement, provided that the [Director][Observer] or KKR or any of its\naffiliates, as applicable, (x) furnishes only that portion of the Confidential Information that is legally required based upon the advice of KKR’s or\nsuch affiliate’s counsel to be disclosed, (y) gives the Company notice of the information to be disclosed as promptly as is practicable (except, for\nthe avoidance of doubt, in the case of routine supervisory examinations or regulatory oversight by banking regulatory authorities with\njurisdiction over KKR or any such affiliate) and (z) uses commercially reasonable efforts to consult with the Company, at the Company’s request\nand expense, on seeking an appropriate protective order or other reliable assurance that confidential treatment will be accorded to all such\nConfidential Material.\n2 KKR Confi to include the following: “For the avoidance of doubt, the Confidentiality Agreement dated as of May 29, 2013 (the “Existing\nConfidentiality Agreement”) between KKR & Co. L.P. and the Company shall not apply to any information provided to KKR pursuant to this\nAgreement.”\n2\n[If Director willfully breaches this Agreement or KKR or one of its controlled affiliates willfully breaches the KKR Confidentiality\nAgreement, Director will tender his or her resignation from the Board and its committees upon the request of the Board.]\n4. Governing Law; Consent to Jurisdiction. This Agreement shall be deemed to be made in and in all respects shall be interpreted,\nconstrued and governed by and in accordance with the laws of the State of New York (except to the extent that mandatory provisions of\nWashington law are applicable).\n5. Term. This Agreement and the provisions of this Agreement shall terminate on the first anniversary following the date that is the earlier\nof (i) the date that [Director][Observer] ceases to be [a director][an observer] of the Company and (ii) the date that [Director][Observer] ceases to\nbe employed by or an advisor to KKR and its affiliates.\n6. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter.\n7. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which shall be\ndeemed to constitute a single instrument.\n[Remainder of Page Intentionally Left Blank]\n3\nIN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be signed by its duly authorized representatives as of the\ndate written below.\nWMI Holdings Corp.\n[DIRECTOR][OBSERVER]\nADDRESS FOR NOTICE:\nADDRESS FOR NOTICE:\n[\n]\nc/o Kohlberg Kravis Roberts & Co. L .P.\n9 West 57th Street\nBy:\nSuite 4200\nName:\nNew York, New York 10019\nTitle:\nBy:\nName:\nTitle:\n[Signature Page to Nondisclosure Agreement]
ef4cd4acc1245ad2d7368d007efedfb6.pdf	jurisdiction party	Ohr Pharmaceutical, Inc. S -4/A\nExhibit 10.26\nNeuBase Therapeutics, Inc.\nEMPLOYEE PROPRIETARY INFORMATION\nAND INVENTIONS ASSIGNMENT AGREEMENT\nIn consideration of my employment or continued employment by NeuBase Therapeutics, Inc. (the “Company”),\nand the compensation now and hereafter paid to me, I hereby agree as follows:\n1.\nNondisclosure.\n1.1\nRecognition of the Company’s Rights; Nondisclosure. At all times during my employment with the\nCompany or one or more of its affiliates, including any parent or any subsidiary of the Company (collectively, the\n“Company Group”) and thereafter, I will hold in strictest confidence and will not disclose, use, copy, reverse-engineer,\ndistribute, misappropriate, lecture upon or publish any of the Company Group’s Proprietary Information (defined below),\nexcept as such disclosure, use or publication may be required in connection with my work for the Company Group, or\nunless an executive officer of the Company expressly authorizes such in writing. I will obtain the Company’s written\napproval before publishing or submitting for publication any material (written, verbal or otherwise) that relates to my work\nat the Company Group and/or incorporates any Proprietary Information. I hereby assign to the Company any rights I may\nhave or acquire in any and all such Proprietary Information and recognize that all Proprietary Information shall be the sole\nand exclusive property of the Company Group and its assigns.\n1.2\nProprietary Information. The term “Proprietary Information” shall mean any and all confidential\nand/or proprietary knowledge, data or information of the Company Group or related to the Company Group’s business or\nits actual or demonstrably anticipated research or development. By way of illustration but not limitation, “Proprietary\nInformation” includes (a) trade secrets, technical data, research, products, services, ideas, inventions, mask works,\ncompositions of matter, ideas, plans, applications, concepts, improvements, works of art, manuals, laboratory notebooks,\npolicies, information, notes, analyses, compilations, drawings, materials, processes, studies, samples, processes,\nformulas, artwork, biological materials, compounds, compositions of matter, source and object codes, data and\ndatabases, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and\ntechniques, whether or not patentable, copyrightable or otherwise legally protectable (hereinafter collectively referred to\nas “Inventions”); and (b) information regarding plans for research, development, new products, services, marketing and\nselling, business plans, plans for research and development, budgets and unpublished financial statements, contracts,\nlicenses, prices and costs, suppliers and customers; (c) information regarding the skills and compensation of other\nemployees, contractors and any other service providers of the Company Group; and (d) the existence of any business\ndiscussions, negotiations or agreements between the Company Group and any third party.\n1.3\nThird Party Information. I understand, in addition, that the Company Group has received and in the\nfuture will receive from third parties confidential or proprietary information (“Third Party Information”) subject to a duty\non the Company Group’s part to maintain the confidentiality of such information and to use it only for certain limited\npurposes. During the term of my employment and thereafter, I will hold Third Party Information in the strictest confidence\nand will not disclose to anyone (other than the Company Group’s personnel who need to know such information in\nconnection with their work for the Company Group) or use, except in connection with my work for the Company Group,\nThird Party Information unless expressly authorized by an executive officer of the Company in writing.\n1.4\nNo Improper Use of Information of Prior Employers and Others. I represent that my employment by\nthe Company Group does not and will not breach any agreement with any former employer, including any noncompete\nagreement or any agreement to keep in confidence or refrain from using information acquired by me prior to my\nemployment by the Company Group. I further represent that I have not entered into, and will not enter into, any\nagreement, either written or oral, in conflict with any of my obligations under this Employee Proprietary Information and\nInventions Assignment Agreement (this “Agreement”). During my employment by the Company Group, I will not\nimproperly make use of, or disclose, any confidential information or trade secrets, if any, of any former employer or any\nother person to whom I have an obligation of confidentiality, and I will not bring onto the premises of the Company Group\nor use any unpublished documents or any property belonging to any former employer or any other person to whom I\nhave an obligation of confidentiality unless consented to in writing by that former employer or person. I will use in the\nperformance of my duties only information which is generally known and used by persons with training and experience\ncomparable to my own, which is common knowledge in the industry or otherwise legally in the public domain, or which is\notherwise provided or developed by the Company Group.\n1\n1.5\nDefend Trade Secrets Act. Pursuant to the Defend Trade Secrets Act of 2016, I acknowledge that I will\nnot have criminal or civil liability to the Company under any Federal or State trade secret law for the disclosure of a trade\nsecret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to\nan attorney and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a\ncomplaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, if I file a\nlawsuit for retaliation by the Company for reporting a suspected violation of law, I may disclose the trade secret to my\nattorney and may use the trade secret information in the court proceeding, if I (X) file any document containing the trade\nsecret under seal and (Y) do not disclose the trade secret, except pursuant to court order.\n2.\nAssignment Of Inventions.\n2.1\nProprietary Rights. The term “Proprietary Rights” shall mean all trade secrets, patents, patent\napplications, copyrights, mask works, trademarks and other intellectual property rights, along with any registrations of or\napplications to register such rights and Moral Rights recognized by the laws of any jurisdiction or country. “Moral Rights”\nshall mean any rights to claim authorship of or credit on an Invention, to object to or prevent the modification or\ndestruction of any Invention or Prior Invention licensed to the Company under Section 2.2, or to withdraw from circulation\nor control the publication or distribution of any Inventions or Prior Inventions licensed to the Company under Section 2.2,\nand any similar right, existing under judicial or statutory law of any country or subdivision thereof in the world, or under\nany treaty, regardless of whether or not such right is denominated or generally referred to as a “moral right.”\n2.2\nPrior Inventions. Inventions, if any, patented or unpatented, which I made prior to the commencement\nof my employment with the Company Group are excluded from the scope of this Agreement. To preclude any possible\nuncertainty, I have set forth on Exhibit B (Prior Inventions) attached hereto a complete list of all Inventions that I have,\nalone or jointly with others, conceived, developed or reduced to practice or caused to be conceived, developed or\nreduced to practice prior to the commencement of my employment with the Company Group or that I have an ownership\ninterest in or which I have a license to use, that I consider to be my property or the property of third parties and that I wish\nto have excluded from the scope of this Agreement (collectively referred to as “Prior Inventions”). If disclosure of any\nsuch Prior Invention would cause me to violate any prior confidentiality agreement, I understand that I am not to list such\nPrior Inventions in Exhibit B but am only to disclose a cursory name for each such invention, a listing of the party(ies) to\nwhom it belongs and the fact that full disclosure as to such inventions has not been made for that reason. A space is\nprovided on Exhibit B for such purpose. If no such disclosure is attached, I represent that there are no Prior Inventions.\nIf, in the course of my employment with the Company Group, I incorporate a Prior Invention into a Company Group\nproduct, process, machine or other work, the Company is hereby granted and shall have a nonexclusive, royalty-free,\nfully paid-up, irrevocable, assumable, perpetual and worldwide license (with rights to sublicense through multiple tiers of\nsublicensees) to reproduce, make, have made, make derivative works of, copy, distribute, publicly perform, publicly\ndisplay in any form or medium, whether now known or later developed, modify, use, sell, import, offer for sale and\nexercise any and all present or future rights in, such Prior Invention. Notwithstanding the foregoing, I agree that I will not\nincorporate, or permit to be incorporated, Prior Inventions in any Company Group Inventions without the Company’s prior\nwritten consent. Notwithstanding the foregoing, I acknowledge and agree that if I use any of my Prior Inventions in the\nscope of my employment, or include them in any product or service of the Company Group, I hereby grant to the\nCompany a perpetual, irrevocable, nonexclusive, world-wide, royalty-free license to use, disclose, make, sell, copy,\ndistribute, modify and create works based on, perform or display such Prior Inventions and to sublicense third parties with\nthe same rights.\n2.3\nAssignment of Inventions. Subject to Sections 2.4, and 2.6, without further compensation, I hereby\nassign and agree to assign in the future (when any such Inventions or Proprietary Rights are first reduced to practice or\nfirst fixed in a tangible medium, as applicable) to the Company all my right, title and interest in and to any and all\nInventions (and all Proprietary Rights with respect thereto) whether or not patentable, copyrightable or otherwise legally\nprotectable, made or conceived or reduced to practice or learned by me, either alone or jointly with others, during the\nperiod of my employment with the Company Group. I understand that this assignment is intended to, and does, extend to\nsubject matters currently in existence, those in development, as well as those which have not yet been created.\nInventions assigned to the Company, or to a third party as directed by the Company pursuant to this Section 2, are\nhereinafter referred to as “Company Group Inventions.”\n2.4\nNonassignable Inventions. This Agreement does not apply to an Invention which qualifies fully as a\nnonassignable Invention under Section 2870 of the California Labor Code (hereinafter “Section 2870”). I have reviewed\nthe notification on Exhibit A (Limited Exclusion Notification) and agree that my signature acknowledges receipt of the\nnotification.\n2\n2.5\nObligation to Keep the Company Informed. During the period of my employment and for six (6)\nmonths after termination of my employment with the Company Group, I will promptly disclose to the Company fully and in\nwriting all Inventions authored, conceived or reduced to practice by me, either alone or jointly with others. In addition, I\nwill promptly disclose to the Company all patent applications filed by me or on my behalf or in which I am named as an\ninventor or co-inventor within a year after termination of employment. At the time of each such disclosure, I will advise the\nCompany in writing of any Inventions that I believe fully qualify for protection under Section 2870; and I will at that time\nprovide to the Company in writing all evidence necessary to substantiate that belief. The Company will keep in\nconfidence and will not use for any purpose or disclose to third parties without my consent any confidential information\ndisclosed in writing to the Company pursuant to this Agreement relating to Inventions that qualify fully for protection under\nthe provisions of Section 2870. I will preserve the confidentiality of any Invention that does not fully qualify for protection\nunder Section 2870.\n2.6\nGovernment or Third Party. I also agree to assign all my right, title and interest in and to any particular\nCompany Group Invention to a third party, including without limitation the United States, as directed by the Company.\n2.7\nWorks for Hire. I acknowledge that all original works of authorship which are made by me (solely or\njointly with others) within the scope of my employment and which are protectable by copyright are “works made for hire,”\npursuant to United States Copyright Act (17 U.S.C., Section 101).\n2.8\nEnforcement of Proprietary Rights. I will assist the Company Group in every proper way to obtain,\nand from time to time enforce, United States and foreign Proprietary Rights relating to Company Group Inventions in any\nand all countries. To that end I will execute, verify and deliver such documents and perform such other acts (including\nappearances as a witness) as the Company may reasonably request for use in applying for, obtaining, perfecting,\nevidencing, sustaining and enforcing such Proprietary Rights and the assignment thereof. In addition, I will execute, verify\nand deliver assignments of such Proprietary Rights to the Company or its designee. My obligation to assist the Company\nwith respect to Proprietary Rights relating to such Company Group Inventions in any and all countries shall continue\nbeyond the termination of my employment, but the Company shall compensate me at a reasonable rate after my\ntermination for the time actually spent by me at the Company’s request on such assistance.\nIn the event the Company is unable for any reason, after reasonable effort, to secure my signature on any document\nneeded in connection with the actions specified in the preceding paragraph, I hereby irrevocably designate and appoint\nthe Company and its duly authorized officers and agents as my agent and attorney in fact, which appointment is coupled\nwith an interest, to act for and on my behalf to execute, verify and file any such documents and to do all other lawfully\npermitted acts to further the purposes of the preceding paragraph with the same legal force and effect as if executed by\nme. I hereby waive and quitclaim to the Company any and all claims, of any nature whatsoever, which I now or may\nhereafter have for infringement of any Proprietary Rights assigned hereunder to the Company.\n3.\nRecords. I agree to keep and maintain adequate and current records (in the form of notes, sketches, drawings\nand in any other form that may be required by the Company) of all Proprietary Information developed by me and all\nInventions made by me during the period of my employment at the Company Group, which records shall be available to\nand, to the extent related to Proprietary Information of the Company Group or Company Group Inventions, remain the\nsole property of the Company at all times.\n4.\nAdditional Activities. I agree that during the period of my employment by the Company Group I will not,\nwithout the Company’s express written consent, engage in any employment or business activity which is competitive\nwith, or would otherwise conflict with, my employment by the Company Group. I agree further that for the period of my\nemployment by the Company Group and for one (l) year after the date of termination of my employment, (a) I will not,\neither directly or through others, solicit or attempt to solicit any employee, independent contractor or consultant of the\nCompany Group to terminate his, her or its relationship with the Company Group in order to become an employee,\nconsultant or independent contractor to or for any other person or entity, or (b) directly or indirectly solicit or otherwise\ntake away customers or suppliers of the Company Group if, in so doing, I access, use or disclose any trade secrets or\nProprietary Information of the Company Group. I acknowledge and agree that the Company Group’s lists of customers\nand suppliers, including their buying and selling habits and special needs, whether created or obtained by, or disclosed to\nme during my employment, constitute Proprietary Information of the Company Group. I acknowledge that the restrictions\nunder this Section 4 are necessary for the Company Group to protect its Confidential Information. I acknowledge and\nagree that compliance with this Agreement will not unduly burden or interfere with my ability to earn a living following\ntermination of my relationship with the Company Group.\n3\n5.\nNo Conflicting Obligation. I represent that my performance of all the terms of this Agreement and as an\nemployee of the Company Group does not and will not breach any agreement to keep in confidence information acquired\nby me in confidence or in trust prior to my employment by the Company Group. I have not entered into, and I agree I will\nnot enter into, any agreement either written or oral in conflict herewith.\n6.\nReturn of Company Documents. When I leave the employ of the Company Group, I will deliver to the\nCompany any and all of the Company Group’s property, equipment, drawings, notes, memoranda, specifications,\ndevices, formulas, and documents, together with all copies thereof, and any other material containing or disclosing any\nCompany Group Inventions, Third Party Information or Proprietary Information of the Company Group and certify in\nwriting that I have fully complied with the foregoing obligation. I agree that I will not copy, delete or alter any information\ncontained upon my Company Group computer or other Company Group equipment before I return the computer or such\nother equipment to the Company. In addition, if I have used any personal computer, server or e-mail system to receive,\nstore, review, prepare or transmit any Company Group information, including but not limited to, Proprietary Information, I\nagree to provide the Company with a computer-useable copy of all such Proprietary Information and then permanently\ndelete and expunge such Proprietary Information from those systems; and I agree to provide the Company access to my\nsystem as reasonably requested to verify that the necessary copying and/or deletion is completed. I further agree that\nany property situated on the Company Group’s premises and owned by the Company Group, including disks and other\nstorage media, filing cabinets or other work areas, is subject to inspection by the Company Group’s personnel at any time\nwith or without notice. Prior to the termination of my employment or promptly after termination of my employment, I will\ncooperate with the Company in attending an exit interview and will certify in writing that I have complied with the\nrequirements of this section and in which I acknowledge my continuing obligations under this Agreement.\n7.\nLegal And Equitable Remedies. Because my services are personal and unique and because I may have\naccess to and become acquainted with the Proprietary Information of the Company Group, the Company shall have the\nright to enforce this Agreement and any of its provisions by injunction, specific performance or other equitable relief,\nwithout bond and without prejudice to any other rights and remedies that the Company may have for a breach of this\nAgreement.\n8.\nNotices. Any notices required or permitted hereunder shall be given to the appropriate party at the address\nspecified below or at such other address as the party shall specify in writing. Such notice shall be deemed given upon\npersonal delivery to the appropriate address or if sent by certified or registered mail, three (3) days after the date of\nmailing.\n9.\nNotification Of New Employer or Firm. In the event that I leave the employ of the Company Group, I hereby\nconsent to the notification of each of my future employers (and any other organization to which I provide services) of my\nrights and obligations under this Agreement by the Company providing a copy of this Agreement or otherwise.\n10.\nGeneral Provisions.\n10.1\nGoverning Law; Consent to Personal Jurisdiction. This Agreement will be governed by and\nconstrued according to the laws of the State of Pennsylvania, as such laws are applied to agreements entered into and to\nbe performed entirely within Pennsylvania between Pennsylvania residents, without giving effect to any conflicts of laws\nprinciples that require the application of the law of a different state. I hereby expressly consent to the personal jurisdiction\nand venue of the state and federal courts located in Allegheny County, Pennsylvania for any lawsuit filed there against\nme by the Company arising from or related to this Agreement.\n10.2\nSeverability. In case any one or more of the provisions contained in this Agreement shall, for any\nreason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not\naffect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or\nunenforceable provision had never been contained herein. If moreover, any one or more of the provisions contained in\nthis Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or\nsubject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the\napplicable law as it shall then appear.\n10.3\nSuccessors and Assigns. This Agreement will be binding upon my heirs, executors, administrators\nand other legal representatives and will be for the benefit of the Company, its successors, and its assigns.\n10.4\nSurvival. The provisions of this Agreement shall survive the termination of my employment and the\nassignment of this Agreement by the Company to any successor in interest or other assignee.\n10.5\nEmployment. I understand that this Agreement does not constitute a contract of employment or\nobligate the Company Group to employ me for any stated period of time. I agree and understand that, unless otherwise\nprovided in a separate agreement between any member of the Company Group and me, I am an “at will” employee of the\nCompany Group and nothing in this Agreement shall interfere in any way with my right or the Company Group’s right to\nterminate my employment at any time, with or without cause and with or without advance notice.\n4\n10.6\nWaiver. No waiver by the Company of any breach of this Agreement shall be a waiver of any preceding\nor succeeding breach. No waiver by the Company of any right under this Agreement shall be construed as a waiver of\nany other right. The Company shall not be required to give notice to enforce strict adherence to all terms of this\nAgreement.\n10.7\nAdvice of Counsel. I acknowledge that, in executing this Agreement, I have had the opportunity to\nseek the advice of independent legal counsel, and I have read and understood all of the terms and provisions of this\nAgreement. This Agreement shall not be construed against any party by reason of the drafting or preparation hereof.\n10.8\nVoluntary Execution. I certify and acknowledge that I have carefully read all of the provisions of this\nAgreement, that I understand and have voluntarily accepted such provisions, and that I will fully and faithfully comply with\nsuch provisions.\n10.9\nEntire Agreement. The obligations pursuant to Sections 1, 2 and 3 of this Agreement shall apply to any\ntime during which I was previously employed, or am in the future employed, by the Company Group as a consultant if no\nother agreement governs nondisclosure and assignment of inventions during such period. This Agreement together with\nthat certain offer letter by and between the Company and me, dated as of May 18, 2019 (as may be amended or restated\nfrom time to time),] is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof\nand supersedes and merges all prior discussions between the parties with respect to the subject matter hereof. No\nmodification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective\nunless in writing and signed by the party to be charged. Any subsequent change or changes in my duties, salary or\ncompensation will not affect the validity or scope of this Agreement.\nThis Agreement shall be effective as of the first day of my employment with the Company Group, namely\nimmediately after the merger with Ohr Pharmaceutical is consumated.\nI have read this agreement carefully and understand its terms. I have completely filled out Exhibit B to\nthis agreement.\nDated: 5/18/2019\n/s/ Sam Backenroth\n(Signature)\nName: Sam Backenroth\nAccepted And Agreed To:\nNeuBase Therapeutics, Inc.\nBy:/s/ Dietrich Stephan\nName: Dietrich Stephan\nTitle: CEO\nAddress:\n213 Smithfield Street\nPittsburgh, PA 15222\nDated: 5/18/2019	Ohr P harmaceutical, Inc. S-4/A\nExhibit 10.26\nNeuBase Therapeutics, Inc.\nEMPLOYEE PROPRIETARY INFORMATION\nAND INVENTIONS ASSIGNMENT AGREEMENT\nIn consideration of my employment or continued employment by NeuBase Therapeutics, Inc. (the “Company”),\nand the compensation now and hereafter paid to me, I hereby agree as follows:\n1. Nondisclosure.\n1.1 Recognition of the Company's Rights; Nondisclosure. At all times during my employment with the\nCompany or one or more of its affiliates, including any parent or any subsidiary of the Company (collectively, the\n“Company Group”) and thereafter, I will hold in strictest confidence and will not disclose, use, copy, reverse-engineer,\ndistribute, misappropriate, lecture upon or publish any of the Company Group's Proprietary Information (defined below),\nexcept as such disclosure, use or publication may be required in connection with my work for the Company Group, or\nunless an executive officer of the Company expressly authorizes such in writing. I will obtain the Company's written\napproval before publishing or submitting for publication any material (written, verbal or otherwise) that relates to my work\nat the Company Group and/or incorporates any Proprietary Information. I hereby assign to the Company any rights I may\nhave or acquire in any and all such Proprietary Information and recognize that all Proprietary Information shall be the sole\nand exclusive property of the Company Group and its assigns.\n1.2 Proprietary Information. The term “Proprietary Information” shall mean any and all confidential\nand/or proprietary knowledge, data or information of the Company Group or related to the Company Group's business or\nits actual or demonstrably anticipated research or development. By way of illustration but not limitation, “Proprietary\nInformation” includes (a) trade secrets, technical data, research, products, services, ideas, inventions, mask works,\ncompositions of matter, ideas, plans, applications, concepts, improvements, works of art, manuals, laboratory notebooks,\npolicies, information, notes, analyses, compilations, drawings, materials, processes, studies, samples, processes,\nformulas, artwork, biological materials, compounds, compositions of matter, source and object codes, data and\ndatabases, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and\ntechniques, whether or not patentable, copyrightable or otherwise legally protectable (hereinafter collectively referred to\nas “Inventions”); and (b) information regarding plans for research, development, new products, services, marketing and\nselling, business plans, plans for research and development, budgets and unpublished financial statements, contracts,\nlicenses, prices and costs, suppliers and customers; (c) information regarding the skills and compensation of other\nemployees, contractors and any other service providers of the Company Group; and (d) the existence of any business\ndiscussions, negotiations or agreements between the Company Group and any third party.\n1.3 Third Party Information. I understand, in addition, that the Company Group has received and in the\nfuture will receive from third parties confidential or proprietary information (’Third Party Information”) subject to a duty\non the Company Group's part to maintain the confidentiality of such information and to use it only for certain limited\npurposes. During the term of my employment and thereafter, I will hold Third Party Information in the strictest confidence\nand will not disclose to anyone (other than the Company Group's personnel who need to know such information in\nconnection with their work for the Company Group) or use, except in connection with my work for the Company Group,\nThird Party Information unless expressly authorized by an executive officer of the Company in writing.\n1.4 No Improper Use of Information of Prior Employers and Others. I represent that my employment by\nthe Company Group does not and will not breach any agreement with any former employer, including any noncompete\nagreement or any agreement to keep in confidence or refrain from using information acquired by me prior to my\nemployment by the Company Group. I further represent that I have not entered into, and will not enter into, any\nagreement, either written or oral, in conflict with any of my obligations under this Employee Proprietary Information and\nInventions Assignment Agreement (this “Agreement”). During my employment by the Company Group, I will not\nimproperly make use of, or disclose, any confidential information or trade secrets, if any, of any former employer or any\nother person to whom I have an obligation of confidentiality, and I will not bring onto the premises of the Company Group\nor use any unpublished documents or any property belonging to any former employer or any other person to whom I\nhave an obligation of confidentiality unless consented to in writing by that former employer or person. I will use in the\nperformance of my duties only information which is generally known and used by persons with training and experience\ncomparable to my own, which is common knowledge in the industry or otherwise legally in the public domain, or which is\notherwise provided or developed by the Company Group.\n1.5 Defend Trade Secrets Act. Pursuant to the Defend Trade Secrets Act of 2016, I acknowledge that I will\nnot have criminal or civil liability to the Company under any Federal or State trade secret law for the disclosure of a trade\nsecret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to\nan attorney and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a\ncomplaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, ifl file a\nlawsuit for retaliation by the Company for reporting a suspected violation of law, I may disclose the trade secret to my\nattorney and may use the trade secret information in the court proceeding, ifl (X) file any document containing the trade\nsecret under seal and (Y) do not disclose the trade secret, except pursuant to court order.\n2. Assignment 0f Inventions.\n2.1 Proprietary Rights. The term “Proprietary Rights” shall mean all trade secrets, patents, paten‘\napplications, copyrights, mask works, trademarks and other intellectual property rights, along with any registrations of or\napplications to register such rights and Moral Rights recognized by the laws of anyjurisdiction or country. “Moral Rights”\nshall mean any rights to claim authorship of or credit on an Invention, to object to or prevent the modification or\ndestruction of any Invention or Prior Invention licensed to the Company under Section 2.2, orto withdraw from circulation\nor control the publication or distribution of any Inventions or Prior Inventions licensed to the Company under Section 2.2,\nand any similar right, existing under judicial or statutory law of any country or subdivision thereof in the world, or under\nany treaty, regardless of whether or not such right is denominated or generally referred to as a “moral right.”\n2.2 Prior Inventions. Inventions, if any, patented or unpatented, which I made prior to the commencement\nof my employment with the Company Group are excluded from the scope of this Agreement. To preclude any possible\nuncertainty, l have set forth on Exhibit B (Prior Inventions) attached hereto a complete list of all Inventions thatl have,\nalone or jointly with others, conceived, developed or reduced to practice or caused to be conceived, developed or\nreduced to practice prior to the commencement of my employment with the Company Group orthatl have an ownership\ninterest in or which I have a license to use, thatl considerto be my property orthe property of third parties and thatl wish\nto have excluded from the scope of this Agreement (collectively referred to as “Prior Inventions”). If disclosure of any\nsuch Prior Invention would cause me to violate any prior confidentiality agreement, I understand thatl am not to list such\nPrior Inventions in Exhibit B but am only to disclose a cursory name for each such invention, a listing of the party(ies) to\nwhom it belongs and the fact that full disclosure as to such inventions has not been made for that reason. A space is\nprovided on Exhibit B for such purpose. If no such disclosure is attached, I represent that there are no Prior Inventions.\nIf, in the course of my employment with the Company Group, I incorporate a Prior Invention into a Company Group\nproduct, process, machine or other work, the Company is hereby granted and shall have a nonexclusive, royalty-free,\nfully paid-up, irrevocable, assumable, perpetual and worldwide license (with rights to sublicense through multiple tiers of\nsublicensees) to reproduce, make, have made, make derivative works of, copy, distribute, publicly perform, publicly\ndisplay in any form or medium, whether now known or later developed, modify, use, sell, import, offer for sale and\nexercise any and all present or future rights in, such Prior Invention. Notwithstanding the foregoing, I agree thatl will not\nincorporate, or permit to be incorporated, Prior Inventions in any Company Group Inventions withoutthe Company's prior\nwritten consent. Notwithstanding the foregoing, I acknowledge and agree that if I use any of my Prior Inventions in the\nscope of my employment, or include them in any product or service of the Company Group, I hereby grant to the\nCompany a perpetual, irrevocable, nonexclusive, world-wide, royalty-free license to use, disclose, make, sell, copy,\ndistribute, modify and create works based on, perform or display such Prior Inventions and to sublicense third parties with\nthe same rights.\n2.3 Assignment of Inventions. Subject to Sections 2.4, and 2.6, without further compensation, I hereby\nassign and agree to assign in the future (when any such Inventions or Proprietary Rights are first reduced to practice or\nfirst fixed in a tangible medium, as applicable) to the Company all my right, title and interest in and to any and all\nInventions (and all Proprietary Rights with respect thereto) whether or not patentable, copyrightable or otherwise legally\nprotectable, made or conceived or reduced to practice or learned by me, either alone or jointly with others, during the\nperiod of my employmentwith the Company Group. I understand thatthis assignment is intended to, and does, extend to\nsubject matters currently in existence, those in development, as well as those which have not yet been created.\nInventions assigned to the Company, or to a third party as directed by the Company pursuant to this Section 2, are\nhereinafter referred to as “Company Group Inventions.”\n2.4 Nonassignable Inventions. This Agreement does not apply to an lnvention which qualifies fully as a\nnonassignable lnvention under Section 2870 of the California Labor Code (hereinafter “Section 2870”). l have reviewed\nthe notification on ExhibitA (Limited Exclusion Notification) and agree that my signature acknowledges receipt of the\nnotification.\n2.5 Obligation to Keep the Company Informed. During the period of my employment and for six (6)\nmonths after termination of my employment with the Company Group, I will promptly disclose to the Company fully and in\nwriting all Inventions authored, conceived or reduced to practice by me, either alone orjointly with others. In addition, I\nwill promptly disclose to the Company all patent applications filed by me or on my behalf or in which I am named as an\ninventor or co-inventor within a year aftertermination of employment. At the time of each such disclosure, I will advise the\nCompany in writing of any Inventions thatl believe fully qualify for protection under Section 2870; and I will at that time\nprovide to the Company in writing all evidence necessary to substantiate that belief. The Company will keep in\nconfidence and will not use for any purpose or disclose to third parties without my consent any confidential information\ndisclosed in writing to the Company pursuant to this Agreement relating to Inventions that qualify fully for protection under\nthe provisions of Section 2870. I will preserve the confidentiality of any Invention that does not fully qualify for protection\nunder Section 2870.\n2.6 Government or Third Party. I also agree to assign all my right, title and interest in and to any particular\nCompany Group Invention to a third party, including without limitation the United States, as directed by the Company.\n2.7 Works for Hire. I acknowledge that all original works of authorship which are made by me (solely or\njointly with others) within the scope of my employment and which are protectable by copyright are “works made for hire,”\npursuant to United States CopyrightAct (17 U.S.C., Section 101).\n2.8 Enforcement of Proprietary Rights. I will assist the Company Group in every proper way to obtain,\nand from time to time enforce, United States and foreign Proprietary Rights relating to Company Group Inventions in any\nand all countries. To that end I will execute, verify and deliver such documents and perform such other acts (including\nappearances as a witness) as the Company may reasonably request for use in applying for, obtaining, perfecting,\nevidencing, sustaining and enforcing such Proprietary Rights and the assignment thereof. In addition, I will execute, verify\nand deliver assignments of such Proprietary Rights to the Company or its designee. My obligation to assist the Company\nwith respect to Proprietary Rights relating to such Company Group Inventions in any and all countries shall continue\nbeyond the termination of my employment, but the Company shall compensate me at a reasonable rate after my\ntermination for the time actually spent by me atthe Company's request on such assistance.\nIn the event the Company is unable for any reason, after reasonable effort, to secure my signature on any document\nneeded in connection with the actions specified in the preceding paragraph, I hereby irrevocably designate and appoint\nthe Company and its duly authorized officers and agents as my agent and attorney in fact, which appointment is coupled\nwith an interest, to act for and on my behalf to execute, verify and file any such documents and to do all other lawfully\npermitted acts to further the purposes of the preceding paragraph with the same legal force and effect as if executed by\nme. I hereby waive and quitclaim to the Company any and all claims, of any nature whatsoever, which I now or may\nhereafter have for infringement of any P roprietary Rights assigned hereunder to the Company.\n3. Records. I agree to keep and maintain adequate and current records (in the form of notes, sketches, drawings\nand in any other form that may be required by the Company) of all Proprietary Information developed by me and all\nInventions made by me during the period of my employment at the Company Group, which records shall be available to\nand, to the extent related to Proprietary Information of the Company Group or Company Group Inventions, remain the\nsole property of the Company at all times.\n4. Additional Activities. I agree that during the period of my employment by the Company Group I will not,\nwithout the Company's express written consent, engage in any employment or business activity which is competitive\nwith, or would otherwise conflict with, my employment by the Company Group. I agree further that for the period of my\nemployment by the Company Group and for one (I) year after the date of termination of my employment, (a) I will not,\neither directly or through others, solicit or attempt to solicit any employee, independent contractor or consultant of the\nCompany Group to terminate his, her or its relationship with the Company Group in order to become an employee,\nconsultant or independent contractor to or for any other person or entity, or (b) directly or indirectly solicit or otherwise\ntake away customers or suppliers of the Company Group if, in so doing, I access, use or disclose any trade secrets or\nProprietary Information of the Company Group. I acknowledge and agree that the Company Group's lists of customers\nand suppliers, including their buying and selling habits and special needs, whether created or obtained by, or disclosed to\nme during my employment, constitute Proprietary Information of the Company Group. I acknowledge that the restrictions\nunder this Section 4 are necessary for the Company Group to protect its Confidential Information. I acknowledge and\nagree that compliance with this Agreement will not unduly burden or interfere with my ability to earn a living following\ntermination of my relationship with the Company Group.\n5. No Conflicting Obligation. I represent that my performance of all the terms of this Agreement and as an\nemployee ofthe Company Group does not and will not breach any agreement to keep in confidence information acquired\nby me in confidence or in trust prior to my employment by the Company Group. I have not entered into, and I agree I will\nnot enter into, any agreement either written or oral in conflict herewith.\n6. Return of Company Documents. When I leave the employ of the Company Group, I will deliver to the\nCompany any and all of the Company Group's property, equipment, drawings, notes, memoranda, specifications,\ndevices, formulas, and documents, together with all copies thereof, and any other material containing or disclosing any\nCompany Group Inventions, Third Party Information or Proprietary Information of the Company Group and certify in\nwriting thatl have fully complied with the foregoing obligation. I agree thatl will not copy, delete or alter any information\ncontained upon my Company Group computer or other Company Group equipment before I return the computer or such\nother equipment to the Company. In addition, ifI have used any personal computer, server or e-mail system to receive,\nstore, review, prepare or transmit any Company Group information, including but not limited to, Proprietary Information, I\nagree to provide the Company with a computer-useable copy of all such Proprietary Information and then permanently\ndelete and expunge such Proprietary Information from those systems; and I agree to provide the Company access to my\nsystem as reasonably requested to verify that the necessary copying and/or deletion is completed. I further agree that\nany property situated on the Company Group's premises and owned by the Company Group, including disks and other\nstorage media, filing cabinets or other work areas, is subjectto inspection by the Company Group's personnel at any time\nwith or without notice. Prior to the termination of my employment or promptly after termination of my employment, I will\ncooperate with the Company in attending an exit interview and will certify in writing that I have complied with the\nrequirements of this section and in which I acknowledge my continuing obligations underthis Agreement.\n7. Legal And Equiiable Remedies. Because my services are personal and unique and because I may have\naccess to and become acquainted with the Proprietary Information of the Company Group, the Company shall have the\nright to enforce this Agreement and any of its provisions by injunction, specific performance or other equitable relief,\nwithout bond and without prejudice to any other rights and remedies that the Company may have for a breach of this\nAgreement.\n8. Notices. Any notices required or permitted hereunder shall be given to the appropriate party at the address\nspecified below or at such other address as the party shall specify in writing. Such notice shall be deemed given upon\npersonal delivery to the appropriate address or if sent by certified or registered mail, three (3) days after the date of\nmailing.\n9. Notification Of New Employer or Firm. In the event that I leave the employ of the Company Group, I hereby\nconsent to the notification of each of my future employers (and any other organization to which I provide services) of my\nrights and obligations underthis Agreement by the Company providing a copy of this Agreement or otherwise.\n10. General Provisions.\n10.1 Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by and\nconstrued according to the laws of the State of Pennsylvania, as such laws are applied to agreements entered into and to\nbe performed entirely within Pennsylvania between Pennsylvania residents, without giving effect to any conflicts of laws\nprinciples that require the application of the law of a different state. I hereby expressly consent to the personal jurisdiction\nand venue of the state and federal courts located in Allegheny County, Pennsylvania for any lawsuit filed there against\nme by the Company arising from or related to this Agreement.\n10.2 Severability. In case any one or more of the provisions contained in this Agreement shall, for any\nreason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not\naffect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or\nunenforceable provision had never been contained herein. If moreover, any one or more of the provisions contained in\nthis Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or\nsubject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the\napplicable law as itshall then appear.\n10.3 Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators\nand other legal representatives and will be forthe benefit of the Company, its successors, and its assigns.\n10.4 Survival. The provisions of this Agreement shall survive the termination of my employment and the\nassignment ofthis Agreement by the Company to any successor in interest or other assignee.\n10.5 Employment. I understand that this Agreement does not constitute a contract of employment or\nobligate the Company Group to employ me for any stated period of time. I agree and understand that, unless otherwise\nprovided in a separate agreement between any member of the Company Group and me, I am an “at will” employee of the\nCompany Group and nothing in this Agreement shall interfere in any way with my right or the Company Group's right to\nterminate my employment at any time, with or without cause and with or without advance notice.\n10.6 Waiver. No waiver by the Company of any breach of this Agreement shall be a waiver of any preceding\nor succeeding breach. No waiver by the Company of any right under this Agreement shall be construed as a waiver of\nany other right. The Company shall not be required to give notice to enforce strict adherence to all terms of this\nAgreement.\n10.7 Advice of Counsel. I acknowledge that, in executing this Agreement, l have had the opportunity to\nseek the advice of independent legal counsel, and l have read and understood all of the terms and provisions of this\nAgreement. This Agreement shall not be construed against any party by reason of the drafting or preparation hereof.\n10.8 Voluntary Execution. I certify and acknowledge thatl have carefully read all of the provisions of this\nAgreement, thatl understand and have voluntarily accepted such provisions, and thatl will fully and faithfully comply with\nsuch provisions.\n10.9 Entire Agreement. The obligations pursuant to Sections 1, 2 and 3 of this Agreement shall apply to any\ntime during which I was previously employed, or am in the future employed, by the Company Group as a consultant if no\nother agreement governs nondisclosure and assignment of inventions during such period. This Agreement together with\nthatcertain offer letter by and between the Company and me, dated as of May 18, 2019 (as may be amended or restated\nfrom time to time),] is the final, complete and exclusive agreement of the parties with respectto the subject matter hereof\nand supersedes and merges all prior discussions between the parties with respect to the subject matter hereof. No\nmodification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective\nunless in writing and signed by the party to be charged. Any subsequent change or changes in my duties, salary or\ncompensation will not affect the validity or scope of this Agreement.\nThis Agreement shall be effective as of the first day of my employment with the Company Group, namely\nimmediately after the merger with Ohr Pharmaceutical is consumated.\nI have read this agreement carefully and understand its terms. I have completely filled out Exhibit B to\nthis agreement.\nDated: 5/18/2019\n/s/ Sam B ackenroth\n"(Sim—\nName: Sam Backenroth\nAccepted And Agreed To:\nNeuBase Therapeutics, Inc.\nBy/s/ Dietrich Stephan\nName: Dietrich Stephan\nTitle: CEO\nA ddress: 213 Smithfield Street\nPittsburgh, PA 15222\nDated: 5/18/2019	Ohr Pharmaceutical, Inc. S-4/A\nExhibit 10.26\nNeuBase Therapeutics, Inc.\nEMPLOYEE PROPRIETARY INFORMATION\nAND INVENTIONS ASSIGNMENT AGREEMENT\nIn consideration of my employment or continued employment by NeuBase Therapeutics, Inc. (the "Company"),\nand the compensation now and hereafter paid to me, I hereby agree as follows:\n1.\nNondisclosure.\n1.1\nRecognition of the Company's Rights; Nondisclosure. At all times during my employment with the\nCompany or one or more of its affiliates, including any parent or any subsidiary of the Company (collectively, the\n"Company Group") and thereafter, I wil hold in strictest confidence and will not disclose, use, copy, reverse-engineer,\ndistribute, misappropriate, lecture upon or publish any of the Company Group's Proprietary Information (defined below),\nexcept as such disclosure, use or publication may be required in connection with my work for the Company Group, or\nunless an executive officer of the Company expressly authorizes such in writing. I will obtain the Company's written\napproval before publishing or submitting for publication any material (written, verbal or otherwise) that relates to my work\nat the Company Group and/or incorporates any Proprietary Information I hereby assign to the Company any rights I may\nhave or acquire in any and all such Proprietary Information and recognize that all roprietary Information shall be the sole\nand exclusive property of the Company Group and its assigns.\n1.2\nProprietary Information. The term "Proprietary Information" shall mean any and all confidential\nand/or proprietary knowledge, data or information of the Company Group or related to the Company Group's business or\nits actual or demonstrably anticipated research or development. By way of illustration but not limitation, "Proprietary\nInformation" includes (a) trade secrets, technical data, research, products, services, ideas, inventions, mask works,\ncompositions of matter, ideas, plans, applications, concepts, improvements, works of art, manuals, laboratory notebooks,\npolicies, information, notes, analyses, compilations, drawings, materials, processes, studies, samples, processes,\nformulas, artwork, biological materials, compounds, compositions of matter, source and object codes, data and\ndatabases, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and\ntechniques, whether or not patentable, copyrightable or otherwise legally protectable (hereinafter collectively referred to\nas "Inventions"); and (b) information regarding plans for research, development, new products, services, marketing and\nselling, business plans, plans for research and development, budgets and unpublished financial statements, contracts,\nlicenses, prices and costs, suppliers and customers; (c) information regarding the skills and compensation of other\nemployees, contractors and any other service providers of the Company Group; and (d) the existence of any business\ndiscussions, negotiations or agreements between the Company Group and any third party.\n1.3\nThird Party Information. I understand, in addition, that the Company Group has received and in the\nfuture will receive from third parties confidential or proprietary information ('Third Party Information") subject to a duty\non the Company Group's part to maintain the confidentiality of such information and to use it only for certain limited\npurposes. During the term of my employment and thereafter, I will hold Third Party Information in the strictest confidence\nand wil not disclose to anyone (other than the Company Group's personnel who need to know such information in\nconnection with their work for the Company Group) or use, except in connection with my work for the Company Group,\nThird arty Information unless expressly authorized by an executive officer of the Company in writing.\n1.4\nNo Improper Use of Information of Prior Employers and Others. I represent that my employment by\nthe Company Group does not and will not breach any agreement with any former employer, including any noncompete\nagreement or any agreement to keep in confidence or refrain from using information acquired by me prior to my\nemployment by the Company Group. I further represent that I have not entered into, and will not enter into, any\nagreement, either written or oral, in conflict with any of my obligations under this Employee Proprietary Information and\nInventions Assignment Agreement (this "Agreement"). During my employment by the Company Group, I will not\nimproperly make use of, or disclose, any confidential information or trade secrets, if any, of any former employer or any\nother person to whom I have an obligation of confidentiality, and I will not bring onto the premises of the Company Group\nor use any unpublished documents or any property belonging to any former employer or any other person to whom\nI\nhave an obligation of confidentiality unless consented to in writing by that former employer or person I will use in the\nperformance of my duties only information which is generally known and used by persons with training and experience\ncomparable to my own, which is common knowledge in the industry or otherwise legally in the public domain, or which\nis\notherwise provided or developed by the Company Group.\n1\n1.5\nDefend Trade Secrets Act. Pursuant to the Defend Trade Secrets Act of 2016, I acknowledge that I will\nnot have criminal or civil liability to the Company under any Federal or State trade secret law for the disclosure of a trade\nsecret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to\nan attorney and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a\ncomplaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, if I file a\nlawsuit for retaliation by the Company for reporting a suspected violation of law, I may disclose the trade secret to my\nattorney and may use the trade secret information in the court proceeding, if I (X) file any document containing the trade\nsecret under seal and (Y) do not disclose the trade secret, except pursuant to court order.\n2.\nAssignment Of Inventions.\n2.1\nProprietary Rights. The term "Proprietary Rights" shall mean all trade secrets, patents, paten\napplications, copyrights, mask works, trademarks and other intellectual property rights, along with any registrations of or\napplications to register such rights and Moral Rights recognized by the laws of any jurisdiction or country. "Moral Rights"\nshall mean any rights to claim authorship of or credit on an Invention, to object to or prevent the modification or\ndestruction of any Invention or rior Invention licensed to the Company under Section 2.2, or to withdraw from circulation\nor control the publication or distribution of any Inventions or Prior Inventions licensed to the Company under Section 2.2,\nand any similar right, existing under judicial or statutory law of any country or subdivision thereof in the world, or under\nany treaty, regardless of whether or not such right is denominated or generally referred to as a "moral right."\n2.2\nPrior Inventions. Inventions, if any, patented or unpatented, which I made prior to the commencement\nof my employment with the Company Group are excluded from the scope of this Agreement. To preclude any possible\nuncertainty, I have set forth on Exhibit B Prior Inventions) attached hereto a complete list of all Inventions that I have,\nalone or jointly with others, conceived, developed or reduced to practice or caused to be conceived, developed or\nreduced to practice prior to the commencement of my employment with the Company Group or that I have an ownership\ninterest in or which I have a license to use, that I consider to be my property or the property of third parties and that I wish\nto have excluded from the scope of this Agreement (collectively referred to as "Prior Inventions"). If disclosure of any\nsuch rior Invention would cause me to violate any prior confidentiality agreement, I understand that I am not to list such\nPrior Inventions in Exhibit B but am only to disclose a cursory name for each such invention, a listing of the party(ies) to\nwhom it belongs and the fact that full disclosure as to such inventions has not been made for that reason. A space is\nprovided on Exhibit B for such purpose. If no such disclosure is attached, I represent that there are no Prior Inventions.\nIf, in the course of my employment with the Company Group, I incorporate a Prior Invention into a Company Group\nproduct, process, machine or other work, the Company is hereby granted and shall have a nonexclusive, royalty-free,\nfully paid-up, irrevocable, assumable, perpetual and worldwide license (with rights to sublicense through multiple tiers of\nsublicensees) to reproduce, make, have made, make derivative works of, copy, distribute, publicly perform, publicly\ndisplay in any form or medium, whether now known or later developed, modify, use, sell, import, offer for sale and\nexercise any and all present or future rights in, such Prior Invention. Notwithstanding the foregoing, I agree that I will not\nincorporate, or permit to be incorporated, rior Inventions in any Company Group Inventions without the Company's prior\nwritten consent. Notwithstanding the foregoing, I acknowledge and agree that if I use any of my rior Inventions in the\nscope of my employment, or include them in any product or service of the Company Group, I hereby grant to the\nCompany a perpetual, irrevocable, nonexclusive, world-wide, royalty-free license to use, disclose, make, sell, copy,\ndistribute, modify and create works based on, perform or display such rior Inventions and to sublicense third parties with\nthe same rights.\n2.3\nAssignment of Inventions. Subject to Sections 2.4, and 2.6, without further compensation, I hereby\nassign and agree to assign in the future (when any such Inventions or Proprietary Rights are first reduced to practice or\nfirst fixed in a tangible medium, as applicable) to the Company all my right, title and interest in and to any and all\nInventions (and all Proprietary Rights with respect thereto) whether or not patentable, copyrightable or otherwise legally\nprotectable, made or conceived or reduced to practice or learned by me, either alone or jointly with others, during the\nperiod of my employment with the Company Group. I understand that this assignment is intended to, and does, extend to\nsubject matters currently in existence, those in development, as well as those which have not yet been created.\nInventions assigned to the Company, or to a third party as directed by the Company pursuant to this Section 2, are\nhereinafter referred to as "Company Group Inventions."\n2.4\nNonassignable Inventions. This Agreement does not apply to an Invention which qualifies fully as a\nnonassignable Invention under Section 2870 of the California Labor Code (hereinafter "Section 2870"). I have reviewed\nthe notification on Exhibit A (Limited Exclusion Notification) and agree that my signature acknowledges receipt of the\nnotification.\n2\n2.5\nObligation to Keep the Company Informed. During the period of my employment and for six (6)\nmonths after termination of my employment with the Company Group, I will promptly disclose to the Company fully and in\nwriting all Inventions authored, conceived or reduced to practice by me, either alone or jointly with others. In addition, I\nwill promptly disclose to the Company all patent applications filed by me or on my behalf or in which I am named as an\ninventor or co-inventor within a year after termination of employment. At the time of each such disclosure, I wil advise the\nCompany in writing of any Inventions that I believe fully qualify for protection under Section 2870; and I will at that time\nprovide to the Company in writing all evidence necessary to substantiate that belief. The Company wil keep in\nconfidence and wil not use for any purpose or disclose to third parties without my consent any confidential information\ndisclosed in writing to the Company pursuant to this Agreement relating to Inventions that qualify fully for protection under\nthe provisions of Section 2870. I will preserve the confidentiality of any Invention that does not fully qualify for protection\nunder Section 2870.\n2.6\nGovernment or Third Party. I also agree to assign all my right, title and interest in and to any particular\nCompany Group Invention to a third party, including without limitation the United States, as directed by the Company.\n2.7\nWorks for Hire. acknowledge that all original works of authorship which are made by me (solely or\njointly\nwith others) within the scope of my employment and which are protectable by copyright are "works made for hire,"\npursuant to United States Copyright Act (17 U.S.C., ection 101).\n2.8\nEnforcement of Proprietary Rights. I wil assist the Company Group in every proper way to obtain,\nand from time to time enforce, United States and foreign Proprietary Rights relating to Company Group Inventions in any\nand all countries. To that end I will execute, verify and deliver such documents and perform such other acts (including\nappearances as a witness) as the Company may reasonably request for use in applying for, obtaining, perfecting,\nevidencing, sustaining and enforcing such Proprietary Rights and the assignment thereof. In addition, I wil execute, verify\nand deliver assignments of such Proprietary Rights to the Company or its designee. My obligation to assist the Company\nwith respect to Proprietary Rights relating to such Company Group Inventions in any and all countries shall continue\nbeyond the termination of my employment, but the Company shall compensate me at a reasonable rate after\nmy\ntermination for the time actually spent by me at the Company's request on such assistance.\nIn the event the Company is unable for any reason, after reasonable effort, to secure my signature on any document\nneeded in connection with the actions specified in the preceding paragraph, I hereby irrevocably designate and appoint\nthe Company and its duly authorized officers and agents as my agent and attorney in fact, which appointment is coupled\nwith an interest, to act for and on my behalf to execute, verify and file any such documents and to do all other lawfully\npermitted acts to further the purposes of the preceding paragraph with the same lega force and effect as if executed by\nme. I hereby waive and quitclaim to the Company any and all claims, of any nature whatsoever, which now or may\nhereafter have for infringement of any roprietary Rights assigned hereunder to the Company.\n3.\nRecords. I agree to keep and maintain adequate and current records (in the form of notes, sketches, drawings\nand in any other form that may be required by the Company) of all roprietary Information developed by me and all\nInventions made by me during the period of my employment at the Company Group, which records shall be available to\nand, to the extent related to roprietary Information of the Company Group or Company Group Inventions, remain the\nsole property of the Company at all times.\n4.\nAdditional Activities. I agree that during the period of my employment by the Company Group I will not,\nwithout the Company's express written consent, engage in any employment or business activity which is competitive\nwith, or would otherwise conflict with, my employment by the Company Group. I agree further that for the period of my\nemployment by the Company Group and for one (I) year after the date of termination of my employment, (a) I will not,\neither directly or through others, solicit or attempt to solicit any employee, independent contractor or consultant of the\nCompany Group to terminate his, her or its relationship with the Company Group in order to become an employee,\nconsultant or independent contractor to or for any other person or entity, or (b) directly or indirectly solicit or otherwise\ntake away customers or suppliers of the Company Group if, in SO doing, I access, use or disclose any trade secrets or\nProprietary Information of the Company Group. I acknowledge and agree that the Company Group's lists of customers\nand suppliers, including their buying and selling habits and special needs, whether created or obtained by, or disclosed to\nme during my employment constitute Proprietary Information of the Company Group. I acknowledge that the restrictions\nunder this Section 4 are necessary for the Company Group to protect its Confidential Information. I acknowledge and\nagree that compliance with this Agreement will not unduly burden or interfere with my ability to earn a living following\ntermination of my relationship with the Company Group.\n3\n5.\nNo Conflicting Obligation. I represent that my performance of all the terms of this Agreement and as an\nemployee of the Company Group does not and will not breach any agreement to keep in confidence information acquired\nby me in confidence or in trust prior to my employment by the Company Group I have not entered into, and I agree I will\nnot enter into, any agreement either written or oral in conflict herewith.\n6.\nReturn of Company Documents. When I leave the employ of the Company Group, I will deliver\nto\nthe\nCompany any and all of the Company Group's property, equipment, drawings, notes, memoranda, specifications,\ndevices, formulas, and documents, together with all copies thereof, and any other material containing or disclosing any\nCompany Group Inventions, Third arty Information or Proprietary Information of the Company Group and certify in\nwriting that I have fully complied with the foregoing obligation I agree that I will not copy, delete or alter any information\ncontained upon my Company Group computer or other Company Group equipment before return the computer or such\nother equipment to the Company. In addition, if I have used any personal computer, server or e-mail system to receive,\nstore, review, prepare or transmit any Company Group information, including but not limited to, roprietary Information, I\nagree to provide the Company with a computer-useable copy of all such Proprietary Information and then permanently\ndelete and expunge such Proprietary Information from those systems; and I agree to provide the Company access to my\nsystem as reasonably requested to verify that the necessary copying and/or deletion is completed. I further agree that\nany property situated on the Company Group's premises and owned by the Company Group, including disks and other\nstorage media, filing cabinets or other work areas, is subject to inspection by the Company Group's personnel at any time\nwith or without notice. rior to the termination of my employment or promptly after termination of my employment, I will\ncooperate with the Company in attending an exit interview and will certify in writing that I have complied with the\nrequirements of this section and in which I acknowledge my continuing obligations under this Agreement\n7.\nLegal And Equitable Remedies. Because my services are personal and unique and because I may have\naccess to and become acquainted with the Proprietary Information of the Company Group, the Company shall have the\nright to enforce this Agreement and any of its provisions by injunction, specific performance or other equitable relief,\nwithout bond and without prejudice to any other rights and remedies that the Company may have for a breach of this\nAgreement.\n8.\nNotices. Any notices required or permitted hereunder shall be given to the appropriate party at the address\nspecified below or at such other address as the party shall specify in writing. Such notice shall be deemed given upon\npersonal delivery to the appropriate address or if sent by certified or registered mail, three (3) days after the date of\nmailing.\n9.\nNotification Of New Employer or Firm. In the event that I leave the employ of the Company Group, I hereby\nconsent to the notification of each of my future employers (and any other organization to which provide services) of my\nrights and obligations under this Agreement by the Company providing a copy of this Agreement or otherwise.\n10.\nGeneral Provisions.\n10.1\nGoverning Law; Consent to Personal J urisdiction. This Agreement will be governed by anc\nconstrued according to the laws of the State of ennsylvania, as such laws are applied to agreements entered into and to\nbe performed entirely within Pennsylvania between Pennsylvania residents, without giving effect to any conflicts of laws\nprinciples that require the application of the law of a different state. I hereby expressly consent to the persona jurisdiction\nand venue of the state and federal courts located in Allegheny County, Pennsylvania for any lawsuit filed there against\nme by the Company arising from or related to this Agreement.\n10.2\nSeverability. In case any one or more of the provisions contained in this Agreement shall, for any\nreason, be held to be invalid, illega or unenforceable in any respect, such invalidity, illegality or unenforceability shall\nnot\naffect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or\nunenforceable provision had never been contained herein. If moreover, any one or more of the provisions contained in\nthis Agreement shal for any reason be held to be excessively broad as to duration, geographical scope, activity or\nsubject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the\napplicable law as it shall then appear.\n10.3\nSuccessors and Assigns. This Agreement will be binding upon my heirs, executors, administrators\nand other legal representatives and wil be for the benefit of the Company, its successors, and its assigns.\n10.4\nSurvival. The provisions of this Agreement shall survive the termination of my employment and the\nassignment of this Agreement by the Company to any successor in interest or other assignee\n10.5\nEmployment. I understand that this Agreement does not constitute a contract of employment or\nobligate the Company Group to employ me for any stated period of time. I agree and understand that, unless otherwise\nprovided in a separate agreement between any member of the Company Group and me, I am an "at will" employee of the\nCompany Group and nothing in this Agreement shall interfere in any way with my right or the Company Group's right to\nterminate my employment at any time, with or without cause and with or without advance notice.\n4\n10.6\nWaiver. No waiver by the Company of any breach of this Agreement shall be a waiver of any preceding\nor succeeding breach. No waiver by the Company of any right under this Agreement shall be construed as a waiver of\nany other right. The Company shall not be required to give notice to enforce strict adherence to all terms of this\nAgreement.\n10.7\nAdvice of Counsel. I acknowledge that, in executing this Agreement I have had the opportunity to\nseek the advice of independent legal counsel, and I have read and understood all of the terms and provisions of this\nAgreement This Agreement shall not be construed against any party by reason of the drafting or preparation hereof.\n10.8\nVoluntary Execution. I certify and acknowledge that I have carefully read all of the provisions of this\nAgreement, that I understand and have voluntarily accepted such provisions, and that I wil fully and faithfully comply with\nsuch provisions.\n10.9\nEntire Agreement. The obligations pursuant to Sections 1, 2 and 3 of this Agreement shall apply to any\ntime during which I was previously employed, or am in the future employed, by the Company Group as a consultant if no\nother agreement governs nondisclosure and assignment of inventions during such period This Agreement together with\nthat certain offer letter by and between the Company and me, dated as of May 18, 2019 (as may be amended or restated\nfrom time to time), is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof\nand supersedes and merges all prior discussions between the parties with respect to the subject matter hereof. No\nmodification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective\nunless in writing and signed by the party to be charged. Any subsequent change or changes in my duties, salary or\ncompensation will not affect the validity or scope of this Agreement\nThis Agreement shall be effective as of the first day of my employment with the Company Group, namely\nimmediately after the merger with Ohr P harmaceutical is consumated.\nI have read this agreement carefully and understand its terms. I have completely filled out Exhibit B to\nthis agreement.\nDated: 5/18/2019\n/s/ Sam Backenroth\nSignature)\nName: Sam Backenroth\nAccepted And Agreed To:\nNeuBase Therapeutics, Inc.\nBy/s/ Dietrich Stephan\nName: Dietrich Stephan\nTitle: CEO\nAddress:\n213 Smithfield Street\nPittsburgh, PA 15222\nDated: 5/18/2019	Ohr Pharmaceutical, Inc. S -4/A\nExhibit 10.26\nNeuBase Therapeutics, Inc.\nEMPLOYEE PROPRIETARY INFORMATION\nAND INVENTIONS ASSIGNMENT AGREEMENT\nIn consideration of my employment or continued employment by NeuBase Therapeutics, Inc. (the “Company”),\nand the compensation now and hereafter paid to me, I hereby agree as follows:\n1.\nNondisclosure.\n1.1\nRecognition of the Company’s Rights; Nondisclosure. At all times during my employment with the\nCompany or one or more of its affiliates, including any parent or any subsidiary of the Company (collectively, the\n“Company Group”) and thereafter, I will hold in strictest confidence and will not disclose, use, copy, reverse-engineer,\ndistribute, misappropriate, lecture upon or publish any of the Company Group’s Proprietary Information (defined below),\nexcept as such disclosure, use or publication may be required in connection with my work for the Company Group, or\nunless an executive officer of the Company expressly authorizes such in writing. I will obtain the Company’s written\napproval before publishing or submitting for publication any material (written, verbal or otherwise) that relates to my work\nat the Company Group and/or incorporates any Proprietary Information. I hereby assign to the Company any rights I may\nhave or acquire in any and all such Proprietary Information and recognize that all Proprietary Information shall be the sole\nand exclusive property of the Company Group and its assigns.\n1.2\nProprietary Information. The term “Proprietary Information” shall mean any and all confidential\nand/or proprietary knowledge, data or information of the Company Group or related to the Company Group’s business or\nits actual or demonstrably anticipated research or development. By way of illustration but not limitation, “Proprietary\nInformation” includes (a) trade secrets, technical data, research, products, services, ideas, inventions, mask works,\ncompositions of matter, ideas, plans, applications, concepts, improvements, works of art, manuals, laboratory notebooks,\npolicies, information, notes, analyses, compilations, drawings, materials, processes, studies, samples, processes,\nformulas, artwork, biological materials, compounds, compositions of matter, source and object codes, data and\ndatabases, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and\ntechniques, whether or not patentable, copyrightable or otherwise legally protectable (hereinafter collectively referred to\nas “Inventions”); and (b) information regarding plans for research, development, new products, services, marketing and\nselling, business plans, plans for research and development, budgets and unpublished financial statements, contracts,\nlicenses, prices and costs, suppliers and customers; (c) information regarding the skills and compensation of other\nemployees, contractors and any other service providers of the Company Group; and (d) the existence of any business\ndiscussions, negotiations or agreements between the Company Group and any third party.\n1.3\nThird Party Information. I understand, in addition, that the Company Group has received and in the\nfuture will receive from third parties confidential or proprietary information (“Third Party Information”) subject to a duty\non the Company Group’s part to maintain the confidentiality of such information and to use it only for certain limited\npurposes. During the term of my employment and thereafter, I will hold Third Party Information in the strictest confidence\nand will not disclose to anyone (other than the Company Group’s personnel who need to know such information in\nconnection with their work for the Company Group) or use, except in connection with my work for the Company Group,\nThird Party Information unless expressly authorized by an executive officer of the Company in writing.\n1.4\nNo Improper Use of Information of Prior Employers and Others. I represent that my employment by\nthe Company Group does not and will not breach any agreement with any former employer, including any noncompete\nagreement or any agreement to keep in confidence or refrain from using information acquired by me prior to my\nemployment by the Company Group. I further represent that I have not entered into, and will not enter into, any\nagreement, either written or oral, in conflict with any of my obligations under this Employee Proprietary Information and\nInventions Assignment Agreement (this “Agreement”). During my employment by the Company Group, I will not\nimproperly make use of, or disclose, any confidential information or trade secrets, if any, of any former employer or any\nother person to whom I have an obligation of confidentiality, and I will not bring onto the premises of the Company Group\nor use any unpublished documents or any property belonging to any former employer or any other person to whom I\nhave an obligation of confidentiality unless consented to in writing by that former employer or person. I will use in the\nperformance of my duties only information which is generally known and used by persons with training and experience\ncomparable to my own, which is common knowledge in the industry or otherwise legally in the public domain, or which is\notherwise provided or developed by the Company Group.\n1\n1.5\nDefend Trade Secrets Act. Pursuant to the Defend Trade Secrets Act of 2016, I acknowledge that I will\nnot have criminal or civil liability to the Company under any Federal or State trade secret law for the disclosure of a trade\nsecret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to\nan attorney and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a\ncomplaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, if I file a\nlawsuit for retaliation by the Company for reporting a suspected violation of law, I may disclose the trade secret to my\nattorney and may use the trade secret information in the court proceeding, if I (X) file any document containing the trade\nsecret under seal and (Y) do not disclose the trade secret, except pursuant to court order.\n2.\nAssignment Of Inventions.\n2.1\nProprietary Rights. The term “Proprietary Rights” shall mean all trade secrets, patents, patent\napplications, copyrights, mask works, trademarks and other intellectual property rights, along with any registrations of or\napplications to register such rights and Moral Rights recognized by the laws of any jurisdiction or country. “Moral Rights”\nshall mean any rights to claim authorship of or credit on an Invention, to object to or prevent the modification or\ndestruction of any Invention or Prior Invention licensed to the Company under Section 2.2, or to withdraw from circulation\nor control the publication or distribution of any Inventions or Prior Inventions licensed to the Company under Section 2.2,\nand any similar right, existing under judicial or statutory law of any country or subdivision thereof in the world, or under\nany treaty, regardless of whether or not such right is denominated or generally referred to as a “moral right.”\n2.2\nPrior Inventions. Inventions, if any, patented or unpatented, which I made prior to the commencement\nof my employment with the Company Group are excluded from the scope of this Agreement. To preclude any possible\nuncertainty, I have set forth on Exhibit B (Prior Inventions) attached hereto a complete list of all Inventions that I have,\nalone or jointly with others, conceived, developed or reduced to practice or caused to be conceived, developed or\nreduced to practice prior to the commencement of my employment with the Company Group or that I have an ownership\ninterest in or which I have a license to use, that I consider to be my property or the property of third parties and that I wish\nto have excluded from the scope of this Agreement (collectively referred to as “Prior Inventions”). If disclosure of any\nsuch Prior Invention would cause me to violate any prior confidentiality agreement, I understand that I am not to list such\nPrior Inventions in Exhibit B but am only to disclose a cursory name for each such invention, a listing of the party(ies) to\nwhom it belongs and the fact that full disclosure as to such inventions has not been made for that reason. A space is\nprovided on Exhibit B for such purpose. If no such disclosure is attached, I represent that there are no Prior Inventions.\nIf, in the course of my employment with the Company Group, I incorporate a Prior Invention into a Company Group\nproduct, process, machine or other work, the Company is hereby granted and shall have a nonexclusive, royalty-free,\nfully paid-up, irrevocable, assumable, perpetual and worldwide license (with rights to sublicense through multiple tiers of\nsublicensees) to reproduce, make, have made, make derivative works of, copy, distribute, publicly perform, publicly\ndisplay in any form or medium, whether now known or later developed, modify, use, sell, import, offer for sale and\nexercise any and all present or future rights in, such Prior Invention. Notwithstanding the foregoing, I agree that I will not\nincorporate, or permit to be incorporated, Prior Inventions in any Company Group Inventions without the Company’s prior\nwritten consent. Notwithstanding the foregoing, I acknowledge and agree that if I use any of my Prior Inventions in the\nscope of my employment, or include them in any product or service of the Company Group, I hereby grant to the\nCompany a perpetual, irrevocable, nonexclusive, world-wide, royalty-free license to use, disclose, make, sell, copy,\ndistribute, modify and create works based on, perform or display such Prior Inventions and to sublicense third parties with\nthe same rights.\n2.3\nAssignment of Inventions. Subject to Sections 2.4, and 2.6, without further compensation, I hereby\nassign and agree to assign in the future (when any such Inventions or Proprietary Rights are first reduced to practice or\nfirst fixed in a tangible medium, as applicable) to the Company all my right, title and interest in and to any and all\nInventions (and all Proprietary Rights with respect thereto) whether or not patentable, copyrightable or otherwise legally\nprotectable, made or conceived or reduced to practice or learned by me, either alone or jointly with others, during the\nperiod of my employment with the Company Group. I understand that this assignment is intended to, and does, extend to\nsubject matters currently in existence, those in development, as well as those which have not yet been created.\nInventions assigned to the Company, or to a third party as directed by the Company pursuant to this Section 2, are\nhereinafter referred to as “Company Group Inventions.”\n2.4\nNonassignable Inventions. This Agreement does not apply to an Invention which qualifies fully as a\nnonassignable Invention under Section 2870 of the California Labor Code (hereinafter “Section 2870”). I have reviewed\nthe notification on Exhibit A (Limited Exclusion Notification) and agree that my signature acknowledges receipt of the\nnotification.\n2\n2.5\nObligation to Keep the Company Informed. During the period of my employment and for six (6)\nmonths after termination of my employment with the Company Group, I will promptly disclose to the Company fully and in\nwriting all Inventions authored, conceived or reduced to practice by me, either alone or jointly with others. In addition, I\nwill promptly disclose to the Company all patent applications filed by me or on my behalf or in which I am named as an\ninventor or co-inventor within a year after termination of employment. At the time of each such disclosure, I will advise the\nCompany in writing of any Inventions that I believe fully qualify for protection under Section 2870; and I will at that time\nprovide to the Company in writing all evidence necessary to substantiate that belief. The Company will keep in\nconfidence and will not use for any purpose or disclose to third parties without my consent any confidential information\ndisclosed in writing to the Company pursuant to this Agreement relating to Inventions that qualify fully for protection under\nthe provisions of Section 2870. I will preserve the confidentiality of any Invention that does not fully qualify for protection\nunder Section 2870.\n2.6\nGovernment or Third Party. I also agree to assign all my right, title and interest in and to any particular\nCompany Group Invention to a third party, including without limitation the United States, as directed by the Company.\n2.7\nWorks for Hire. I acknowledge that all original works of authorship which are made by me (solely or\njointly with others) within the scope of my employment and which are protectable by copyright are “works made for hire,”\npursuant to United States Copyright Act (17 U.S.C., Section 101).\n2.8\nEnforcement of Proprietary Rights. I will assist the Company Group in every proper way to obtain,\nand from time to time enforce, United States and foreign Proprietary Rights relating to Company Group Inventions in any\nand all countries. To that end I will execute, verify and deliver such documents and perform such other acts (including\nappearances as a witness) as the Company may reasonably request for use in applying for, obtaining, perfecting,\nevidencing, sustaining and enforcing such Proprietary Rights and the assignment thereof. In addition, I will execute, verify\nand deliver assignments of such Proprietary Rights to the Company or its designee. My obligation to assist the Company\nwith respect to Proprietary Rights relating to such Company Group Inventions in any and all countries shall continue\nbeyond the termination of my employment, but the Company shall compensate me at a reasonable rate after my\ntermination for the time actually spent by me at the Company’s request on such assistance.\nIn the event the Company is unable for any reason, after reasonable effort, to secure my signature on any document\nneeded in connection with the actions specified in the preceding paragraph, I hereby irrevocably designate and appoint\nthe Company and its duly authorized officers and agents as my agent and attorney in fact, which appointment is coupled\nwith an interest, to act for and on my behalf to execute, verify and file any such documents and to do all other lawfully\npermitted acts to further the purposes of the preceding paragraph with the same legal force and effect as if executed by\nme. I hereby waive and quitclaim to the Company any and all claims, of any nature whatsoever, which I now or may\nhereafter have for infringement of any Proprietary Rights assigned hereunder to the Company.\n3.\nRecords. I agree to keep and maintain adequate and current records (in the form of notes, sketches, drawings\nand in any other form that may be required by the Company) of all Proprietary Information developed by me and all\nInventions made by me during the period of my employment at the Company Group, which records shall be available to\nand, to the extent related to Proprietary Information of the Company Group or Company Group Inventions, remain the\nsole property of the Company at all times.\n4.\nAdditional Activities. I agree that during the period of my employment by the Company Group I will not,\nwithout the Company’s express written consent, engage in any employment or business activity which is competitive\nwith, or would otherwise conflict with, my employment by the Company Group. I agree further that for the period of my\nemployment by the Company Group and for one (l) year after the date of termination of my employment, (a) I will not,\neither directly or through others, solicit or attempt to solicit any employee, independent contractor or consultant of the\nCompany Group to terminate his, her or its relationship with the Company Group in order to become an employee,\nconsultant or independent contractor to or for any other person or entity, or (b) directly or indirectly solicit or otherwise\ntake away customers or suppliers of the Company Group if, in so doing, I access, use or disclose any trade secrets or\nProprietary Information of the Company Group. I acknowledge and agree that the Company Group’s lists of customers\nand suppliers, including their buying and selling habits and special needs, whether created or obtained by, or disclosed to\nme during my employment, constitute Proprietary Information of the Company Group. I acknowledge that the restrictions\nunder this Section 4 are necessary for the Company Group to protect its Confidential Information. I acknowledge and\nagree that compliance with this Agreement will not unduly burden or interfere with my ability to earn a living following\ntermination of my relationship with the Company Group.\n3\n5.\nNo Conflicting Obligation. I represent that my performance of all the terms of this Agreement and as an\nemployee of the Company Group does not and will not breach any agreement to keep in confidence information acquired\nby me in confidence or in trust prior to my employment by the Company Group. I have not entered into, and I agree I will\nnot enter into, any agreement either written or oral in conflict herewith.\n6.\nReturn of Company Documents. When I leave the employ of the Company Group, I will deliver to the\nCompany any and all of the Company Group’s property, equipment, drawings, notes, memoranda, specifications,\ndevices, formulas, and documents, together with all copies thereof, and any other material containing or disclosing any\nCompany Group Inventions, Third Party Information or Proprietary Information of the Company Group and certify in\nwriting that I have fully complied with the foregoing obligation. I agree that I will not copy, delete or alter any information\ncontained upon my Company Group computer or other Company Group equipment before I return the computer or such\nother equipment to the Company. In addition, if I have used any personal computer, server or e-mail system to receive,\nstore, review, prepare or transmit any Company Group information, including but not limited to, Proprietary Information, I\nagree to provide the Company with a computer-useable copy of all such Proprietary Information and then permanently\ndelete and expunge such Proprietary Information from those systems; and I agree to provide the Company access to my\nsystem as reasonably requested to verify that the necessary copying and/or deletion is completed. I further agree that\nany property situated on the Company Group’s premises and owned by the Company Group, including disks and other\nstorage media, filing cabinets or other work areas, is subject to inspection by the Company Group’s personnel at any time\nwith or without notice. Prior to the termination of my employment or promptly after termination of my employment, I will\ncooperate with the Company in attending an exit interview and will certify in writing that I have complied with the\nrequirements of this section and in which I acknowledge my continuing obligations under this Agreement.\n7.\nLegal And Equitable Remedies. Because my services are personal and unique and because I may have\naccess to and become acquainted with the Proprietary Information of the Company Group, the Company shall have the\nright to enforce this Agreement and any of its provisions by injunction, specific performance or other equitable relief,\nwithout bond and without prejudice to any other rights and remedies that the Company may have for a breach of this\nAgreement.\n8.\nNotices. Any notices required or permitted hereunder shall be given to the appropriate party at the address\nspecified below or at such other address as the party shall specify in writing. Such notice shall be deemed given upon\npersonal delivery to the appropriate address or if sent by certified or registered mail, three (3) days after the date of\nmailing.\n9.\nNotification Of New Employer or Firm. In the event that I leave the employ of the Company Group, I hereby\nconsent to the notification of each of my future employers (and any other organization to which I provide services) of my\nrights and obligations under this Agreement by the Company providing a copy of this Agreement or otherwise.\n10.\nGeneral Provisions.\n10.1\nGoverning Law; Consent to Personal Jurisdiction. This Agreement will be governed by and\nconstrued according to the laws of the State of Pennsylvania, as such laws are applied to agreements entered into and to\nbe performed entirely within Pennsylvania between Pennsylvania residents, without giving effect to any conflicts of laws\nprinciples that require the application of the law of a different state. I hereby expressly consent to the personal jurisdiction\nand venue of the state and federal courts located in Allegheny County, Pennsylvania for any lawsuit filed there against\nme by the Company arising from or related to this Agreement.\n10.2\nSeverability. In case any one or more of the provisions contained in this Agreement shall, for any\nreason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not\naffect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or\nunenforceable provision had never been contained herein. If moreover, any one or more of the provisions contained in\nthis Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or\nsubject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the\napplicable law as it shall then appear.\n10.3\nSuccessors and Assigns. This Agreement will be binding upon my heirs, executors, administrators\nand other legal representatives and will be for the benefit of the Company, its successors, and its assigns.\n10.4\nSurvival. The provisions of this Agreement shall survive the termination of my employment and the\nassignment of this Agreement by the Company to any successor in interest or other assignee.\n10.5\nEmployment. I understand that this Agreement does not constitute a contract of employment or\nobligate the Company Group to employ me for any stated period of time. I agree and understand that, unless otherwise\nprovided in a separate agreement between any member of the Company Group and me, I am an “at will” employee of the\nCompany Group and nothing in this Agreement shall interfere in any way with my right or the Company Group’s right to\nterminate my employment at any time, with or without cause and with or without advance notice.\n4\n10.6\nWaiver. No waiver by the Company of any breach of this Agreement shall be a waiver of any preceding\nor succeeding breach. No waiver by the Company of any right under this Agreement shall be construed as a waiver of\nany other right. The Company shall not be required to give notice to enforce strict adherence to all terms of this\nAgreement.\n10.7\nAdvice of Counsel. I acknowledge that, in executing this Agreement, I have had the opportunity to\nseek the advice of independent legal counsel, and I have read and understood all of the terms and provisions of this\nAgreement. This Agreement shall not be construed against any party by reason of the drafting or preparation hereof.\n10.8\nVoluntary Execution. I certify and acknowledge that I have carefully read all of the provisions of this\nAgreement, that I understand and have voluntarily accepted such provisions, and that I will fully and faithfully comply with\nsuch provisions.\n10.9\nEntire Agreement. The obligations pursuant to Sections 1, 2 and 3 of this Agreement shall apply to any\ntime during which I was previously employed, or am in the future employed, by the Company Group as a consultant if no\nother agreement governs nondisclosure and assignment of inventions during such period. This Agreement together with\nthat certain offer letter by and between the Company and me, dated as of May 18, 2019 (as may be amended or restated\nfrom time to time),] is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof\nand supersedes and merges all prior discussions between the parties with respect to the subject matter hereof. No\nmodification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective\nunless in writing and signed by the party to be charged. Any subsequent change or changes in my duties, salary or\ncompensation will not affect the validity or scope of this Agreement.\nThis Agreement shall be effective as of the first day of my employment with the Company Group, namely\nimmediately after the merger with Ohr Pharmaceutical is consumated.\nI have read this agreement carefully and understand its terms. I have completely filled out Exhibit B to\nthis agreement.\nDated: 5/18/2019\n/s/ Sam Backenroth\n(Signature)\nName: Sam Backenroth\nAccepted And Agreed To:\nNeuBase Therapeutics, Inc.\nBy:/s/ Dietrich Stephan\nName: Dietrich Stephan\nTitle: CEO\nAddress:\n213 Smithfield Street\nPittsburgh, PA 15222\nDated: 5/18/2019
ef8abbfb0ee9179ce12ae4b0f59ec103.pdf	effective_date jurisdiction party term	Mutual Non Disclosure Agreement\nThis Mutual Non Disclosure Agreement (the “Agreement”) is made and entered into as of the 25th day of February, 2005 (the “Effective Date”)\nby and between SPECIALIZED MARKETING SERVICES, INC., a California corporation with offices at 17809 Gillette Ave, Irvine, CA\n92614 (“SMS”) and Amerikal Nutraceutical Corp. a CA corporation with offices at 17751 Mitchell Avenue Irvine, CA 92614 (the “Company”).\nWHEREAS, SMS and Company have agreed to enter into certain business discussions and/or transactions regarding Marketing Services (the\n“Transaction”);\nWHEREAS, SMS and Company will disclose certain information and documentation that is non-public, confidential and/or proprietary in\nnature during discussions regarding the Transaction in order to evaluate a potential business relationship between SMS and Company (the\n“Purpose”);\nNOW THEREFORE, in consideration of the mutual promises and covenants contained in this Agreement, and intending to be legally bound by\nthis Agreement, SMS and Company hereby agrees as follows:\n1.\nAny information and documents that are furnished by one party to another, whether intentionally or unintentionally and whether or not\nrelated to the Transaction, unless otherwise excepted, are proprietary and confidential and shall be used only for the Purpose. This information\nincludes, without limitation: the terms of this Agreement; technical specifications and operating manuals; information relating to and descriptions\nof current, future, or proposed products and services and combinations of products and services; financial information; information related to\nmergers or acquisitions; passwords and security procedures; computer programs, software, and software documentation; customer and/or\nprospective client lists, data files, and all other information relating in any way to the customer and/or prospective clients and printouts; records;\npolicies, practices and procedures; and any or all other information, data or materials relating to the business, trade secrets and technology of a\nparry, its customers, clients, employees, business affairs, affiliates, subsidiaries and the affiliates of its parent organization (all of the foregoing\ncollectively referred to as “Confidential Information”). For the purpose of this Agreement, the “Discloser” is the party to whom the Confidential\nInformation belongs and the “Recipient” is the party receiving Confidential Information.\n2.\nEach party agrees to maintain the Confidential Information in confidence using the same degree of care that it uses to protect its own\ninformation of a confidential nature, but in no event less than a reasonable standard of care. Each party further agrees to (a) restrict disclosure of\nConfidential Information solely to persons who need to know the Confidential Information to perform under this Agreement, and (b) use the\nConfidential Information only for the Purpose, and (c) not to disclose any Confidential Information to any third party without written approval of\nDiscloser, and (d) inform those third parties and other persons who receive Confidential Information of its confidential nature and obtain their\nwritten agreement to abide by confidentiality provisions that are no less stringent than those set forth in this Agreement. Recipient agrees that it\nshall not make copies of the Confidential Information except as absolutely required for the Purpose. All copies made, in any medium whatsoever,\nshall retain all confidential and proprietary markings of the original and shall be covered by the terms and conditions of this Agreement.\n3.\nExcept as required by law, without the prior written consent of Discloser, neither Recipient nor any of its representatives will disclose to\nany other person or entity the fact that the Confidential Information has been made available, that discussion or negotiations are taking place\nconcerning the Transaction, or any of the terms, conditions or other facts with respect to the Transaction.\n4.\nAll Confidential Information is and will remain the property of Discloser. By disclosing the Confidential Information, Discloser does\nnot grant any express or implied license or other rights to or under its copyrights, trademarks, trade secrets or other proprietary rights.\n5.\nThe obligations imposed under this Agreement shall not apply to Confidential Information that (a) is made public by Discloser, or (b) is\nor becomes generally available to the public other than as a result of disclosure by Recipient or its representatives, or (c) is or becomes available\nto Recipient on a non-confidential basis from a source (other than Discloser or its representatives) that is not known to Recipient to be prohibited\nfrom disclosing such\n1\nConfidential Information to Recipient by a legal, contractual or fiduciary obligation to Discloser; or (d) is disclosed with the prior written consent\nof Discloser. In the event that Recipient or any of its agents becomes legally compelled (by deposition, interrogatory, request for documents,\nsubpoena, civil or criminal investigative demand or similar process) to disclose any Confidential Information, then Recipient shall provide\nDiscloser with prompt prior notice so that Discloser may seek a protective order or other appropriate remedy. In the event that such protective\norder or other remedy is not obtained, or that Discloser waives compliance with the provisions of this Agreement, Recipient will furnish only that\nportion of the Confidential Information which in the judgment of its counsel is legally required and will exercise reasonable efforts to obtain\nassurances that confidential treatment will be accorded the Confidential Information.\n6.\nEach party acknowledges and agrees that any breach or threatened breach of any of the provisions of this Agreement will result in\nimmediate and irreparable harm and that any remedies at law in such event will be inadequate. Each party agrees that such breaches, whether\nthreatened or actual, will give the non-breaching party the right to terminate this Agreement immediately and obtain injunctive relief to restrain\nsuch disclosure or use. This right shall, however, be in addition to and not in lieu of any other remedies at law or in equity.\n7.\nEither party may terminate this Agreement at any time upon ten (10) days prior written notice to the other party. Either party may\nimmediately terminate this Agreement upon written notice in the event of a breach by the other party of any term or condition of this Agreement.\nNotwithstanding any termination of the Agreement, and whether or not the Transaction proceeds, all provisions of this Agreement will remain in\neffect for a period of two (2) years from the Effective Date hereof unless sooner terminated or superseded by mutual agreement of the parties.\n8.\nUpon termination of the Agreement, all copies of the Confidential Information, except for that portion of the Confidential Information\nthat consists of analyses, compilations, forecasts, studies or other documents prepared by Recipient will either be destroyed or returned to the\nDiscloser within ten (10) days following written request. That portion of the Confidential Information that consists of analyses, compilations,\nforecasts, studies or other documents prepared by Recipient will be held by Recipient and kept confidential and subject to the terms and\nconditions of this Agreement or destroyed in the event negotiations for the Transaction are terminated.\n9.\nThis Agreement is not intended to and shall not be construed as creating a joint venture, partnership, or other form of business\nassociation between the parties. Neither party shall have the power or authority or bind or obligate the other party.\n10.\nThis Agreement will be governed by and construed in accordance with the laws of the State of California irrespective of its choice of\nlaws principles.\n11.\nThis Agreement constitutes the only agreement between the parties relating to the confidentiality of information provided in connection\nwith the Transaction. This Agreement will expressly survive whatever determination the parties may make regarding the Transaction. Without\nlimiting the scope of the preceding sentence, the terms and restrictions of this Agreement will continue to apply during any transaction between\nthe parties, except and only to the extent otherwise set forth in the documents pertaining to such transaction.\n12.\nAny notices required or permitted hereunder will be in writing and will be deemed to have been properly given: (i) upon delivery if\ndelivered personally or by courier or overnight service; or (ii) five (5) business days after mailing by certified mail, postage prepaid, return\nreceipt requested, to the parties at the following address (or to such other address of which either party may notify the other in a notice that\ncomplies with the provision of this section):\nTo Specialized Marketing Services, Inc.\nTo: AMERIKAL NUTRACEUTICAL CORP.\n17809 Gillette Ave\nATTN HERRIE TANTONO, PRES\nIrvine, CA 92614\n17751 MITCHELL AVE\nATTN: General Manager\nIRVINE CA 92614\n13.\nNo modification or waiver of any provision of this Agreement will be valid unless such modification or waiver is in writing and) signed\nby the party against whom it is sought to be enforced. No waiver at any time of any provision of this Agreement will be deemed to be a waiver of\nany other provision of this Agreement.\n2\n14.\nIf any provision of this Agreement is held for any reason to be invalid, illegal or unenforceable, such invalidity, illegality or\nunenforceability will not affect any other provisions of this Agreement and this Agreement will be construed as if such invalid, illegal or\nunenforceable provision had not been contained herein.\nIN WITNESS WHEREOF, the parties have caused their respective authorized representatives to enter into this Agreement.\nSpecialized Marketing Services, Inc.\nCompany:\nAMERIKAL\nNUTRACEUTICAL\nCORP.\nBy: /s/ Michael Stannard\nBy: /s/ Herrie Tantono\nName: Michael Stannard\nName: Herrie Tantono\nTitle: G.M.\nTitle: President\nDate: 2/25/05\nDate:\nFeb 25, 2005\n3	Mutual Non Disclosure Agreement\nThis Mutual Non Disclosure Agreement (the “Agreement”) is made and entered into as of the 25th day of February, 2005 (the “Effective Date”)\nby and between SPECIALIZED MARKETING SERVICES, INC,, a California corporation with offices at 17809 Gillette Ave, Irvine, CA\n92614 (“SMS”) and Amerikal Nutraceutical Corp. a CA corporation with offices at 17751 Mitchell Avenue Irvine, CA 92614 (the “Company”).\nWHEREAS, SMS and Company have agreed to enter into certain business discussions and/or transactions regarding Marketing Services (the\n“Transaction™);\nWHEREAS, SMS and Company will disclose certain information and documentation that is non-public, confidential and/or proprietary in\nnature during discussions regarding the Transaction in order to evaluate a potential business relationship between SMS and Company (the\n“Purpose™);\nNOW THEREFORE, in consideration of the mutual promises and covenants contained in this Agreement, and intending to be legally bound by\nthis Agreement, SMS and Company hereby agrees as follows:\n1. Any information and documents that are furnished by one party to another, whether intentionally or unintentionally and whether or not\nrelated to the Transaction, unless otherwise excepted, are proprietary and confidential and shall be used only for the Purpose. This information\nincludes, without limitation: the terms of this Agreement; technical specifications and operating manuals; information relating to and descriptions\nof current, future, or proposed products and services and combinations of products and services; financial information; information related to\nmergers or acquisitions; passwords and security procedures; computer programs, software, and software documentation; customer and/or\nprospective client lists, data files, and all other information relating in any way to the customer and/or prospective clients and printouts; records;\npolicies, practices and procedures; and any or all other information, data or materials relating to the business, trade secrets and technology of a\nparry, its customers, clients, employees, business affairs, affiliates, subsidiaries and the affiliates of its parent organization (all of the foregoing\ncollectively referred to as “Confidential Information”). For the purpose of this Agreement, the “Discloser” is the party to whom the Confidential\nInformation belongs and the “Recipient” is the party receiving Confidential Information.\n2. Each party agrees to maintain the Confidential Information in confidence using the same degree of care that it uses to protect its own\ninformation of a confidential nature, but in no event less than a reasonable standard of care. Each party further agrees to (a) restrict disclosure of\nConfidential Information solely to persons who need to know the Confidential Information to perform under this Agreement, and (b) use the\nConfidential Information only for the Purpose, and (c) not to disclose any Confidential Information to any third party without written approval of\nDiscloser, and (d) inform those third parties and other persons who receive Confidential Information of its confidential nature and obtain their\nwritten agreement to abide by confidentiality provisions that are no less stringent than those set forth in this Agreement. Recipient agrees that it\nshall not make copies of the Confidential Information except as absolutely required for the Purpose. All copies made, in any medium whatsoever,\nshall retain all confidential and proprietary markings of the original and shall be covered by the terms and conditions of this Agreement.\n3. Except as required by law, without the prior written consent of Discloser, neither Recipient nor any of its representatives will disclose to\nany other person or entity the fact that the Confidential Information has been made available, that discussion or negotiations are taking place\nconcerning the Transaction, or any of the terms, conditions or other facts with respect to the Transaction.\n4. All Confidential Information is and will remain the property of Discloser. By disclosing the Confidential Information, Discloser does\nnot grant any express or implied license or other rights to or under its copyrights, trademarks, trade secrets or other proprietary rights.\n5. The obligations imposed under this Agreement shall not apply to Confidential Information that (a) is made public by Discloser, or (b) is\nor becomes generally available to the public other than as a result of disclosure by Recipient or its representatives, or (c) is or becomes available\nto Recipient on a non-confidential basis from a source (other than Discloser or its representatives) that is not known to Recipient to be prohibited\nfrom disclosing such\nConfidential Information to Recipient by a legal, contractual or fiduciary obligation to Discloser; or (d) is disclosed with the prior written consent\nof Discloser. In the event that Recipient or any of its agents becomes legally compelled (by deposition, interrogatory, request for documents,\nsubpoena, civil or criminal investigative demand or similar process) to disclose any Confidential Information, then Recipient shall provide\nDiscloser with prompt prior notice so that Discloser may seek a protective order or other appropriate remedy. In the event that such protective\norder or other remedy is not obtained, or that Discloser waives compliance with the provisions of this Agreement, Recipient will furnish only that\nportion of the Confidential Information which in the judgment of its counsel is legally required and will exercise reasonable efforts to obtain\nassurances that confidential treatment will be accorded the Confidential Information.\n6. Each party acknowledges and agrees that any breach or threatened breach of any of the provisions of this Agreement will result in\nimmediate and irreparable harm and that any remedies at law in such event will be inadequate. Each party agrees that such breaches, whether\nthreatened or actual, will give the non-breaching party the right to terminate this Agreement immediately and obtain injunctive relief to restrain\nsuch disclosure or use. This right shall, however, be in addition to and not in lieu of any other remedies at law or in equity.\n7. Either party may terminate this Agreement at any time upon ten (10) days prior written notice to the other party. Either party may\nimmediately terminate this Agreement upon written notice in the event of a breach by the other party of any term or condition of this Agreement.\nNotwithstanding any termination of the Agreement, and whether or not the Transaction proceeds, all provisions of this Agreement will remain in\neffect for a period of two (2) years from the Effective Date hereof unless sooner terminated or superseded by mutual agreement of the parties.\n8. Upon termination of the Agreement, all copies of the Confidential Information, except for that portion of the Confidential Information\nthat consists of analyses, compilations, forecasts, studies or other documents prepared by Recipient will either be destroyed or returned to the\nDiscloser within ten (10) days following written request. That portion of the Confidential Information that consists of analyses, compilations,\nforecasts, studies or other documents prepared by Recipient will be held by Recipient and kept confidential and subject to the terms and\nconditions of this Agreement or destroyed in the event negotiations for the Transaction are terminated.\n9. This Agreement is not intended to and shall not be construed as creating a joint venture, partnership, or other form of business\nassociation between the parties. Neither party shall have the power or authority or bind or obligate the other party.\n10. This Agreement will be governed by and construed in accordance with the laws of the State of California irrespective of its choice of\nlaws principles.\n11. This Agreement constitutes the only agreement between the parties relating to the confidentiality of information provided in connection\nwith the Transaction. This Agreement will expressly survive whatever determination the parties may make regarding the Transaction. Without\nlimiting the scope of the preceding sentence, the terms and restrictions of this Agreement will continue to apply during any transaction between\nthe parties, except and only to the extent otherwise set forth in the documents pertaining to such transaction.\n12. Any notices required or permitted hereunder will be in writing and will be deemed to have been properly given: (i) upon delivery if\ndelivered personally or by courier or overnight service; or (ii) five (5) business days after mailing by certified mail, postage prepaid, return\nreceipt requested, to the parties at the following address (or to such other address of which either party may notify the other in a notice that\ncomplies with the provision of this section):\nTo Specialized Marketing Services, Inc. To: AMERIKAL NUTRACEUTICAL CORP.\n17809 Gillette Ave ATTN HERRIE TANTONO, PRES\nIrvine, CA 92614 17751 MITCHELL AVE\nATTN: General Manager IRVINE CA 92614\n13. No modification or waiver of any provision of this Agreement will be valid unless such modification or waiver is in writing and) signed\nby the party against whom it is sought to be enforced. No waiver at any time of any provision of this Agreement will be deemed to be a waiver of\nany other provision of this Agreement.\n14. If any provision of this Agreement is held for any reason to be invalid, illegal or unenforceable, such invalidity, illegality or\nunenforceability will not affect any other provisions of this Agreement and this Agreement will be construed as if such invalid, illegal or\nunenforceable provision had not been contained herein.\nIN WITNESS WHEREOF, the parties have caused their respective authorized representatives to enter into this Agreement.\nSpecialized Marketing Services, Inc. Company: AMERIKAL\nNUTRACEUTICAL\nCORP.\nBy: /s/ Michael Stannard By: /s/ Herrie Tantono\nName: Michael Stannard Name: Herrie Tantono\nTitle: G.M. Title: President\nDate: 2/25/05 Date: Feb 25, 2005	Mutual Non Disclosure Agreement\nThis Mutual Non Disclosure Agreement (the "Agreement") is made and entered into as of the 25th day of February, 2005 (the "Effective Date")\nby\nand between SPECIALIZED MARKETING SERVICES, INC., a California corporation with offices at 17809 Gillette Ave, Irvine, CA\n92614 ("SMS") and Amerikal Nutraceutical Corp. a CA corporation with offices at 17751 Mitchell Avenue Irvine, CA 92614 (the "Company").\nWHEREAS, SMS and Company have agreed to enter into certain business discussions and/or transactions regarding Marketing Services (the\n"Transaction");\nWHEREAS, SMS and Company will disclose certain information and documentation that is non-public, confidential and/or proprietary in\nnature during discussions regarding the Transaction in order to evaluate a potential business relationship between SMS and Company (the\n"Purpose");\nNOW THEREFORE, in consideration of the mutual promises and covenants contained in this Agreement and intending to be legally bound\nby\nthis Agreement, SMS and Company hereby agrees as follows:\n1.\nAny information and documents that are furnished by one party to another, whether intentionally or unintentionally and whether or not\nrelated to the Transaction, unless otherwise excepted, are proprietary and confidential and shall be used only for the Purpose. This information\nincludes, without limitation: the terms of this Agreement; technical specifications and operating manuals; information relating to and descriptions\nof current, future, or proposed products and services and combinations of products and services; financial information; information related\nto\nmergers or acquisitions; passwords and security procedures; computer programs, software, and software documentation; customer and/or\nprospective client lists, data files, and all other information relating in any way to the customer and/or prospective clients and printouts; records;\npolicies, practices and procedures; and any or all other information, data or materials relating to the business, trade secrets and technology of a\nparry, its customers, clients, employees, business affairs, affiliates, subsidiaries and the affiliates of its parent organization (all of the foregoing\ncollectively referred to as "Confidential Information"). For the purpose of this Agreement, the "Discloser" is the party to whom the Confidential\nInformation belongs and the "Recipient" is the party receiving Confidential Information\n2.\nEach party agrees to maintain the Confidential Information in confidence using the same degree of care that it uses to protect its own\ninformation of a confidential nature, but in no event less than a reasonable standard of care. Each party further agrees to (a) restrict disclosure of\nConfidential Information solely to persons who need to know the Confidential Information to perform under this Agreement, and (b) use the\nConfidential Information only for the Purpose, and (c) not to disclose any Confidential Information to any third party without written approval\nof\nDiscloser, and (d) inform those third parties and other persons who receive Confidential Information of its confidential nature and obtain their\nwritten agreement to abide by confidentiality provisions that are no less stringent than those set forth in this Agreement. Recipient agrees that it\nshall not make copies of the Confidential Information except as absolutely required for the Purpose. All copies made, in any medium whatsoever,\nshall retain all confidential and proprietary markings of the original and shall be covered by the terms and conditions of this Agreement.\n3.\nExcept as required by law, without the prior written consent of Discloser, neither Recipient nor any of its representatives will disclose to\nany other person or entity the fact that the Confidential Information has been made available, that discussion or negotiations are taking place\nconcerning the Transaction, or any of the terms, conditions or other facts with respect to the Transaction.\n4.\nAll Confidential Information is and will remain the property of Discloser. By disclosing the Confidential Information, Discloser does\nnot grant any express or implied license or other rights to or under its copyrights, trademarks, trade secrets or other proprietary rights.\n5.\nThe obligations imposed under this Agreement shall not apply to Confidential Information that (a) is made public by Discloser, or (b)\nis\nor becomes generally available to the public other than as a result of disclosure by Recipient or its representatives, or (c) is or becomes available\nto Recipient on a non-confidential basis from a source (other than Discloser or its representatives) that is not known to Recipient to be prohibited\nfrom disclosing such\n1\nConfidential Information to Recipient by a legal, contractual or fiduciary obligation to Discloser; or (d) is disclosed with the prior written consent\nof Discloser. In the event that Recipient or any of its agents becomes legally compelled (by deposition, interrogatory, request for documents,\nsubpoena, civil or criminal investigative demand or similar process) to disclose any Confidential Information, then Recipient shall provide\nDiscloser with prompt prior notice so that Discloser may seek a protective order or other appropriate remedy. In the event that such protective\norder or other remedy is not obtained, or that Discloser waives compliance with the provisions of this Agreement, Recipient will furnish only\nthat\nportion of the Confidential Information which in the judgment of its counsel is legally required and will exercise reasonable efforts to obtain\nassurances that confidential treatment will be accorded the Confidential Information.\n6.\nEach party acknowledges and agrees that any breach or threatened breach of any of the provisions of this Agreement will result in\nimmediate and irreparable harm and that any remedies at law in such event will be inadequate. Each party agrees that such breaches, whether\nthreatened or actual, will give the non-breaching party the right to terminate this Agreement immediately and obtain injunctive relief to restrain\nsuch disclosure or use. This right shall, however, be in addition to and not in lieu of any other remedies at law or in equity.\n7.\nEither party may terminate this Agreement at any time upon ten (10) days prior written notice to the other party. Either party may\nimmediately terminate this Agreement upon written notice in the event of a breach by the other party of any term or condition of this Agreement.\nNotwithstanding any termination of the Agreement, and whether or not the Transaction proceeds, all provisions of this Agreement will remain in\neffect for a period of two (2) years from the Effective Date hereof unless sooner terminated or superseded by mutual agreement of the parties.\n8.\nUpon termination of the Agreement, all copies of the Confidential Information, except for that portion of the Confidential Information\nthat consists of analyses, compilations, forecasts, studies or other documents prepared by Recipient will either be destroyed or returned to the\nDiscloser within ten (10) days following written request. That portion of the Confidential Information that consists of analyses, compilations,\nforecasts, studies or other documents prepared by Recipient will be held by Recipient and kept confidential and subject to the terms and\nconditions of this Agreement or destroyed in the event negotiations for the Transaction are terminated.\n9.\nThis Agreement is not intended to and shall not be construed as creating a joint venture, partnership, or other form of business\nassociation between the parties. Neither party shall have the power or authority or bind or obligate the other party.\n10.\nThis Agreement will be governed by and construed in accordance with the laws of the State of California irrespective of its choice of\nlaws principles.\n11.\nThis Agreement constitutes the only agreement between the parties relating to the confidentiality of information provided in connection\nwith the Transaction. This Agreement will expressly survive whatever determination the parties may make regarding the Transaction. Without\nlimiting the scope of the preceding sentence, the terms and restrictions of this Agreement will continue to apply during any transaction between\nthe parties, except and only to the extent otherwise set forth in the documents pertaining to such transaction.\n12.\nAny notices required or permitted hereunder will be in writing and will be deemed to have been properly given: (i) upon delivery if\ndelivered personally or by courier or overnight service; or (ii) five (5) business days after mailing by certified mail, postage prepaid, return\nreceipt requested, to the parties at the following address (or to such other address of which either party may notify the other in a notice that\ncomplies with the provision of this section):\nTo Specialized Marketing Services, Inc.\nTo: AMERIKAL NUTRACEUTICAL CORP.\n17809 Gillette Ave\nATTN HERRIE TANTONO, PRES\nIrvine, CA 92614\n17751 MITCHELL AVE\nATTN: General Manager\nIRVINE CA 92614\n13.\nNo modification or waiver of any provision of this Agreement will be valid unless such modification or waiver is in writing and) signed\nby the party against whom it is sought to be enforced. No waiver at any time of any provision of this Agreement will be deemed to be a waiver\nof\nany other provision of this Agreement.\n2\n14.\nIf any provision of this Agreement is held for any reason to be invalid, illegal or unenforceable, such invalidity, illegality or\nunenforceability will not affect any other provisions of this Agreement and this Agreement will be construed as if such invalid, illegal or\nunenforceable provision had not been contained herein.\nIN WITNESS WHEREOF, the parties have caused their respective authorized representatives to enter into this Agreement.\nSpecialized Marketing Services, Inc.\nCompany:\nAMERIKAL\nNUTRACEUTICAL\nCORP.\nBy: /s/ Michael Stannard\nBy: /s/ Herrie Tantono\nName: Michael Stannard\nName: Herrie Tantono\nTitle: G.M.\nTitle: President\nDate: 2/25/05\nDate:\nFeb 25, 2005\n3	Mutual Non Disclosure Agreement\nThis Mutual Non Disclosure Agreement (the “Agreement”) is made and entered into as of the 25th day of February, 2005 (the “Effective Date”)\nby and between SPECIALIZED MARKETING SERVICES, INC., a California corporation with offices at 17809 Gillette Ave, Irvine, CA\n92614 (“SMS”) and Amerikal Nutraceutical Corp. a CA corporation with offices at 17751 Mitchell Avenue Irvine, CA 92614 (the “Company”).\nWHEREAS, SMS and Company have agreed to enter into certain business discussions and/or transactions regarding Marketing Services (the\n“Transaction”);\nWHEREAS, SMS and Company will disclose certain information and documentation that is non-public, confidential and/or proprietary in\nnature during discussions regarding the Transaction in order to evaluate a potential business relationship between SMS and Company (the\n“Purpose”);\nNOW THEREFORE, in consideration of the mutual promises and covenants contained in this Agreement, and intending to be legally bound by\nthis Agreement, SMS and Company hereby agrees as follows:\n1.\nAny information and documents that are furnished by one party to another, whether intentionally or unintentionally and whether or not\nrelated to the Transaction, unless otherwise excepted, are proprietary and confidential and shall be used only for the Purpose. This information\nincludes, without limitation: the terms of this Agreement; technical specifications and operating manuals; information relating to and descriptions\nof current, future, or proposed products and services and combinations of products and services; financial information; information related to\nmergers or acquisitions; passwords and security procedures; computer programs, software, and software documentation; customer and/or\nprospective client lists, data files, and all other information relating in any way to the customer and/or prospective clients and printouts; records;\npolicies, practices and procedures; and any or all other information, data or materials relating to the business, trade secrets and technology of a\nparry, its customers, clients, employees, business affairs, affiliates, subsidiaries and the affiliates of its parent organization (all of the foregoing\ncollectively referred to as “Confidential Information”). For the purpose of this Agreement, the “Discloser” is the party to whom the Confidential\nInformation belongs and the “Recipient” is the party receiving Confidential Information.\n2.\nEach party agrees to maintain the Confidential Information in confidence using the same degree of care that it uses to protect its own\ninformation of a confidential nature, but in no event less than a reasonable standard of care. Each party further agrees to (a) restrict disclosure of\nConfidential Information solely to persons who need to know the Confidential Information to perform under this Agreement, and (b) use the\nConfidential Information only for the Purpose, and (c) not to disclose any Confidential Information to any third party without written approval of\nDiscloser, and (d) inform those third parties and other persons who receive Confidential Information of its confidential nature and obtain their\nwritten agreement to abide by confidentiality provisions that are no less stringent than those set forth in this Agreement. Recipient agrees that it\nshall not make copies of the Confidential Information except as absolutely required for the Purpose. All copies made, in any medium whatsoever,\nshall retain all confidential and proprietary markings of the original and shall be covered by the terms and conditions of this Agreement.\n3.\nExcept as required by law, without the prior written consent of Discloser, neither Recipient nor any of its representatives will disclose to\nany other person or entity the fact that the Confidential Information has been made available, that discussion or negotiations are taking place\nconcerning the Transaction, or any of the terms, conditions or other facts with respect to the Transaction.\n4.\nAll Confidential Information is and will remain the property of Discloser. By disclosing the Confidential Information, Discloser does\nnot grant any express or implied license or other rights to or under its copyrights, trademarks, trade secrets or other proprietary rights.\n5.\nThe obligations imposed under this Agreement shall not apply to Confidential Information that (a) is made public by Discloser, or (b) is\nor becomes generally available to the public other than as a result of disclosure by Recipient or its representatives, or (c) is or becomes available\nto Recipient on a non-confidential basis from a source (other than Discloser or its representatives) that is not known to Recipient to be prohibited\nfrom disclosing such\n1\nConfidential Information to Recipient by a legal, contractual or fiduciary obligation to Discloser; or (d) is disclosed with the prior written consent\nof Discloser. In the event that Recipient or any of its agents becomes legally compelled (by deposition, interrogatory, request for documents,\nsubpoena, civil or criminal investigative demand or similar process) to disclose any Confidential Information, then Recipient shall provide\nDiscloser with prompt prior notice so that Discloser may seek a protective order or other appropriate remedy. In the event that such protective\norder or other remedy is not obtained, or that Discloser waives compliance with the provisions of this Agreement, Recipient will furnish only that\nportion of the Confidential Information which in the judgment of its counsel is legally required and will exercise reasonable efforts to obtain\nassurances that confidential treatment will be accorded the Confidential Information.\n6.\nEach party acknowledges and agrees that any breach or threatened breach of any of the provisions of this Agreement will result in\nimmediate and irreparable harm and that any remedies at law in such event will be inadequate. Each party agrees that such breaches, whether\nthreatened or actual, will give the non-breaching party the right to terminate this Agreement immediately and obtain injunctive relief to restrain\nsuch disclosure or use. This right shall, however, be in addition to and not in lieu of any other remedies at law or in equity.\n7.\nEither party may terminate this Agreement at any time upon ten (10) days prior written notice to the other party. Either party may\nimmediately terminate this Agreement upon written notice in the event of a breach by the other party of any term or condition of this Agreement.\nNotwithstanding any termination of the Agreement, and whether or not the Transaction proceeds, all provisions of this Agreement will remain in\neffect for a period of two (2) years from the Effective Date hereof unless sooner terminated or superseded by mutual agreement of the parties.\n8.\nUpon termination of the Agreement, all copies of the Confidential Information, except for that portion of the Confidential Information\nthat consists of analyses, compilations, forecasts, studies or other documents prepared by Recipient will either be destroyed or returned to the\nDiscloser within ten (10) days following written request. That portion of the Confidential Information that consists of analyses, compilations,\nforecasts, studies or other documents prepared by Recipient will be held by Recipient and kept confidential and subject to the terms and\nconditions of this Agreement or destroyed in the event negotiations for the Transaction are terminated.\n9.\nThis Agreement is not intended to and shall not be construed as creating a joint venture, partnership, or other form of business\nassociation between the parties. Neither party shall have the power or authority or bind or obligate the other party.\n10.\nThis Agreement will be governed by and construed in accordance with the laws of the State of California irrespective of its choice of\nlaws principles.\n11.\nThis Agreement constitutes the only agreement between the parties relating to the confidentiality of information provided in connection\nwith the Transaction. This Agreement will expressly survive whatever determination the parties may make regarding the Transaction. Without\nlimiting the scope of the preceding sentence, the terms and restrictions of this Agreement will continue to apply during any transaction between\nthe parties, except and only to the extent otherwise set forth in the documents pertaining to such transaction.\n12.\nAny notices required or permitted hereunder will be in writing and will be deemed to have been properly given: (i) upon delivery if\ndelivered personally or by courier or overnight service; or (ii) five (5) business days after mailing by certified mail, postage prepaid, return\nreceipt requested, to the parties at the following address (or to such other address of which either party may notify the other in a notice that\ncomplies with the provision of this section):\nTo Specialized Marketing Services, Inc.\nTo: AMERIKAL NUTRACEUTICAL CORP.\n17809 Gillette Ave\nATTN HERRIE TANTONO, PRES\nIrvine, CA 92614\n17751 MITCHELL AVE\nATTN: General Manager\nIRVINE CA 92614\n13.\nNo modification or waiver of any provision of this Agreement will be valid unless such modification or waiver is in writing and) signed\nby the party against whom it is sought to be enforced. No waiver at any time of any provision of this Agreement will be deemed to be a waiver of\nany other provision of this Agreement.\n2\n14.\nIf any provision of this Agreement is held for any reason to be invalid, illegal or unenforceable, such invalidity, illegality or\nunenforceability will not affect any other provisions of this Agreement and this Agreement will be construed as if such invalid, illegal or\nunenforceable provision had not been contained herein.\nIN WITNESS WHEREOF, the parties have caused their respective authorized representatives to enter into this Agreement.\nSpecialized Marketing Services, Inc.\nCompany:\nAMERIKAL\nNUTRACEUTICAL\nCORP.\nBy: /s/ Michael Stannard\nBy: /s/ Herrie Tantono\nName: Michael Stannard\nName: Herrie Tantono\nTitle: G.M.\nTitle: President\nDate: 2/25/05\nDate:\nFeb 25, 2005\n3
f124237afdc9ff7f7e693fa5e062421e.pdf	effective_date jurisdiction party term	EX-10.25 17 d567323dex1025.htm EX-10.25\nExhibit 10.25\nCONFIDENTIALITY, NON-COMPETE AND\nASSIGNMENT OF INVENTIONS AGREEMENT\nThis CONFIDENTIALITY, NON-COMPETE AND ASSIGNMENT OF INVENTIONS AGREEMENT (“Agreement’’) is dated as of the ____\nday of __________, 20__, by and between __________ (the “Employee”) and Vapotherm, Inc., a Maryland corporation.\nIn exchange for being retained as a Employee to perform services for the Company (hereinafter referred to as the “engagement”) by Vapotherm,\nInc. (the “Company”). Employee hereby agrees effective as of _________,\n____\nas follows:\n1. Assignment of Inventions. Without further compensation, Employee hereby agrees promptly to disclose to the Company, and Employee\nhereby assigns and agrees to assign to the Company or its designee, Employee’s entire right, title, and interest in and to all Inventions (as defined herein)\nwhich: (a) pertain to any line of business activity of the Company, (b) are aided by the use of time, equipment, supplies, materials, facilities, services, or\ntrade secrets of the Company, or (c) relate to any of Employee’s work during engagement. Employee hereby waives and quitclaims to the Company any\nand all claims of any nature whatsoever that Employee now or hereafter may have for infringement for any Inventions so assigned to the Company. If in\nthe course of engagement, Employee uses in or incorporates into or permits the Company to use in or incorporate into a released or unreleased Company\nproduct, program, process, or machine, an invention owned by Employee or in which Employee has an interest, the Company is hereby granted and\nshall have an exclusive royalty-free, irrevocable, worldwide license to make, have made, use, and sell that invention without restriction as to the extent\nof Employee’s ownership or interest. No rights are hereby conveyed in Inventions, if any, made by Employee prior to engagement which are identified\non Schedule A hereto or in Inventions to which the Company enjoys no claim under applicable law.\n2. Obtaining and Enforcing Inventions. Employee agrees to perform, at Company expense, during and after engagement, all acts deemed\nnecessary or desirable by the Company to permit and assist Company, in obtaining and enforcing the full benefits, enjoyment, rights and title throughout\nthe world in the Inventions hereby assigned to the Company. If Employee does not cooperate fully in signing documents, Employee hereby authorizes\nCompany to execute on Employee’s behalf as Employee’s attorney in fact for the limited purpose of perfecting Company’s rights in such Inventions, as\nif Employee had signed the same myself, any and all documents which are reasonably necessary to perfect Company’s rights in such Inventions.\n3. Additional Covenants of Employee: Employee agrees as follows:\n(a) Non-Disclosure. To hold in confidence and not directly or indirectly to use or disclose, either during or after termination of engagement, any\nConfidential Information (as defined herein) Employee obtains or creates during engagement, except to the extent authorized by the Company.\nEmployee further agrees to not disclose any Confidential Information to anyone inside the Company except on a “need-to-know” basis. Employee\nagrees not to make copies of such Confidential Information except as authorized by the Company. Upon termination of engagement or upon an earlier\nrequest of the Company, Employee will return or deliver to the Company all tangible forms of such Confidential Information in Employee’s possession\nor control.\n(b) Non-Solicitation of Employees. That during the period of engagement and for a period of one year thereafter, Employee will not solicit or\nencourage any employee of the Company to terminate his or her employment with the Company or to accept employment with any subsequent employer\nwith whom Employee is affiliated in any way.\n(c) Non-Competition. That during the period of engagement and for a period of one year thereafter, Employee will not accept another engagement\nor engage in activities directly or indirectly competitive with products (including actual or demonstrably anticipated research or development) on which\nEmployee worked or about which Employee learned proprietary or confidential or trade secret information during engagement. Employee shall not use\nat any time during the period of engagement or for any time afterwards, any proprietary or confidential or trade secret information which Employee\nlearned during engagement, in a manner which would be injurious to Company.\n4. Inventions and Confidential Information. As used in this Agreement, the term “Inventions” includes, without limitation, electronic designs,\nhardware and software creations, discoveries, formulae, processes, manufacturing techniques, trade secrets, inventions, improvements, concepts,\ntechniques, methods, systems, designs, circuits, cost data, computer programs, development or experimental work, work in progress, ideas and\ncopyrightable or patentable works, including all rights to obtain, register, perfect and enforce these proprietary interests. The term “Confidential\nInformation” means (a) information pertaining to any aspect of the Company’s business which is not known by actual or potential competitors of the\nCompany or (b) proprietary information of the Company or its customers or suppliers, whether of a technical nature or otherwise, which the Company\n(or its suppliers or vendors) takes reasonable measures to protect against unauthorized disclosure to or use by third parties, including, without limitation,\ntechnical, financial, marketing, manufacturing, or distribution information, customer or client lists and names; addresses and phone numbers of\nCompany’s customers, clients, and employees; or other technical or business information or trade secrets of the Company.\n5. Equitable Relief. Employee acknowledges that any violation of this Agreement by Employee will cause irreparable injury to the Company, and\nthe Company shall be entitled to extraordinary relief in court. Employee agrees that if court proceedings are required to enforce any provision of this\nAgreement, the prevailing party shall be entitled to an award of reasonable and necessary expenses of litigation.\n6. Modifications. This Agreement may be amended, modified and supplemented only by written agreement of the parties hereto.\n7. No Waiver. No failure or delay on the part of any party in exercising any right, power or remedy hereunder shall operate as a waiver thereof;\nnor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other\nright, power or remedy hereunder.\n-2-\n8. Validity. In the event that any provision hereof would, under applicable law, be invalid or unenforceable, such provision shall, to the extent\npermitted under applicable law, be construed by modifying or limiting it so as to be valid and enforceable to the maximum extent possible under\napplicable law. The provisions of this Agreement are severable, and in the event that any provision hereof should be held invalid or unenforceable in any\nrespect, it shall not invalidate, render unenforceable or otherwise affect any other provision hereof.\n9. Successors and Assigns. This Agreement shall inure to the benefit of the successors and assigns of the Company. The Company may assign its\nrights under this Agreement in connection with any sale, transfer of other disposition of all or a substantial portion of the stock or assets of the Company.\nEmployee may not assign Employee’s duties or obligations hereunder.\n10. Miscellaneous. This Agreement and the rights and obligations of the parties relating to the subject matter of this Agreement, shall be governed\nby and construed in accordance with the internal laws of the State of Maryland, without regard to the principles of conflicts of laws thereof. This\nAgreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all other prior agreements and\nunderstandings, both written and oral, between the parties with respect to the subject matter hereof. This Agreement may be executed in one or more\ncounterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same agreement. The descriptive\nheadings herein are inserted for convenience of reference only.\n-3-\nIN WITNESS WHEREOF, the parties have executed this Consulting Agreement as of the date and year first above written.\nVapotherm, Inc.\nBy:\nName:\nTitle: President\nEMPLOYEE\n[Name]\nEMPLOYEE HEREBY CERTIFIES AND ACKNOWLEDGES THAT EMPLOYEE HAS CAREFULLY READ ALL OF THE PROVISIONS OF\nTHIS AGREEMENT AND THAT EMPLOYEE UNDERSTANDS AND WILL FULLY AND FAITHFULLY COMPLIES WITH SUCH\nPROVISIONS.\nEMPLOYEE\n[Name]\nSchedule A\nThe following “Inventions,’’ as that term is defined in the Agreement to which this Attachment affixed, if any, are claimed by Employee:	EX-10.25 17 d567323dex1025.htm EX-10.25\nExhibit 10.25\nCONFIDENTIALITY, NON-COMPETE AND\nASSIGNMENT OF INVENTIONS AGREEMENT\nThis CONFIDENTIALITY, NON-COMPETE AND ASSIGNMENT OF INVENTIONS AGREEMENT (“Agreement’’) is dated as of the\nday of , 20__, by and between (the “Employee”) and Vapotherm, Inc., a Maryland corporation.\nIn exchange for being retained as a Employee to perform services for the Company (hereinafter referred to as the “engagement”) by Vapotherm,\nInc. (the “Company”). Employee hereby agrees effective as of s as follows:\n1. Assignment of Inventions. Without further compensation, Employee hereby agrees promptly to disclose to the Company, and Employee\nhereby assigns and agrees to assign to the Company or its designee, Employee’s entire right, title, and interest in and to all Inventions (as defined herein)\nwhich: (a) pertain to any line of business activity of the Company, (b) are aided by the use of time, equipment, supplies, materials, facilities, services, or\ntrade secrets of the Company, or (c) relate to any of Employee’s work during engagement. Employee hereby waives and quitclaims to the Company any\nand all claims of any nature whatsoever that Employee now or hereafter may have for infringement for any Inventions so assigned to the Company. If in\nthe course of engagement, Employee uses in or incorporates into or permits the Company to use in or incorporate into a released or unreleased Company\nproduct, program, process, or machine, an invention owned by Employee or in which Employee has an interest, the Company is hereby granted and\nshall have an exclusive royalty-free, irrevocable, worldwide license to make, have made, use, and sell that invention without restriction as to the extent\nof Employee’s ownership or interest. No rights are hereby conveyed in Inventions, if any, made by Employee prior to engagement which are identified\non Schedule A hereto or in Inventions to which the Company enjoys no claim under applicable law.\n2. Obtaining and Enforcing Inventions. Employee agrees to perform, at Company expense, during and after engagement, all acts deemed\nnecessary or desirable by the Company to permit and assist Company, in obtaining and enforcing the full benefits, enjoyment, rights and title throughout\nthe world in the Inventions hereby assigned to the Company. If Employee does not cooperate fully in signing documents, Employee hereby authorizes\nCompany to execute on Employee’s behalf as Employee’s attorney in fact for the limited purpose of perfecting Company’s rights in such Inventions, as\nif Employee had signed the same myself, any and all documents which are reasonably necessary to perfect Company’s rights in such Inventions.\n3. Additional Covenants of Employee: Employee agrees as follows:\n(a) Non-Disclosure. To hold in confidence and not directly or indirectly to use or disclose, either during or after termination of engagement, any\nConfidential Information (as defined herein) Employee obtains or creates during engagement, except to the extent authorized by the Company.\nEmployee further agrees to not disclose any Confidential Information to anyone inside the Company except on a “need-to-know” basis. Employee\nagrees not to make copies of such Confidential Information except as authorized by the Company. Upon termination of engagement or upon an earlier\nrequest of the Company, Employee will return or deliver to the Company all tangible forms of such Confidential Information in Employee’s possession\nor control.\n(b) Non-Solicitation of Employees. That during the period of engagement and for a period of one year thereafter, Employee will not solicit or\nencourage any employee of the Company to terminate his or her employment with the Company or to accept employment with any subsequent employer\nwith whom Employee is affiliated in any way.\n(c) Non-Competition. That during the period of engagement and for a period of one year thereafter, Employee will not accept another engagement\nor engage in activities directly or indirectly competitive with products (including actual or demonstrably anticipated research or development) on which\nEmployee worked or about which Employee learned proprietary or confidential or trade secret information during engagement. Employee shall not use\nat any time during the period of engagement or for any time afterwards, any proprietary or confidential or trade secret information which Employee\nlearned during engagement, in a manner which would be injurious to Company.\n4. Inventions and Confidential Information. As used in this Agreement, the term “Inventions” includes, without limitation, electronic designs,\nhardware and software creations, discoveries, formulae, processes, manufacturing techniques, trade secrets, inventions, improvements, concepts,\ntechniques, methods, systems, designs, circuits, cost data, computer programs, development or experimental work, work in progress, ideas and\ncopyrightable or patentable works, including all rights to obtain, register, perfect and enforce these proprietary interests. The term “Confidential\nInformation” means (a) information pertaining to any aspect of the Company’s business which is not known by actual or potential competitors of the\nCompany or (b) proprietary information of the Company or its customers or suppliers, whether of a technical nature or otherwise, which the Company\n(or its suppliers or vendors) takes reasonable measures to protect against unauthorized disclosure to or use by third parties, including, without limitation,\ntechnical, financial, marketing, manufacturing, or distribution information, customer or client lists and names; addresses and phone numbers of\nCompany’s customers, clients, and employees; or other technical or business information or trade secrets of the Company.\n5. Equitable Relief. Employee acknowledges that any violation of this Agreement by Employee will cause irreparable injury to the Company, and\nthe Company shall be entitled to extraordinary relief in court. Employee agrees that if court proceedings are required to enforce any provision of this\nAgreement, the prevailing party shall be entitled to an award of reasonable and necessary expenses of litigation.\n6. Modifications. This Agreement may be amended, modified and supplemented only by written agreement of the parties hereto.\n7. No Waiver. No failure or delay on the part of any party in exercising any right, power or remedy hereunder shall operate as a waiver thereof;\nnor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other\nright, power or remedy hereunder.\n-\n8. Validity. In the event that any provision hereof would, under applicable law, be invalid or unenforceable, such provision shall, to the extent\npermitted under applicable law, be construed by modifying or limiting it so as to be valid and enforceable to the maximum extent possible under\napplicable law. The provisions of this Agreement are severable, and in the event that any provision hereof should be held invalid or unenforceable in any\nrespect, it shall not invalidate, render unenforceable or otherwise affect any other provision hereof.\n9. Successors and Assigns. This Agreement shall inure to the benefit of the successors and assigns of the Company. The Company may assign its\nrights under this Agreement in connection with any sale, transfer of other disposition of all or a substantial portion of the stock or assets of the Company.\nEmployee may not assign Employee’s duties or obligations hereunder.\n10. Miscellaneous. This Agreement and the rights and obligations of the parties relating to the subject matter of this Agreement, shall be governed\nby and construed in accordance with the internal laws of the State of Maryland, without regard to the principles of conflicts of laws thereof. This\nAgreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all other prior agreements and\nunderstandings, both written and oral, between the parties with respect to the subject matter hereof. This Agreement may be executed in one or more\ncounterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same agreement. The descriptive\nheadings herein are inserted for convenience of reference only.\n3-\nIN WITNESS WHEREOF, the parties have executed this Consulting Agreement as of the date and year first above written.\nVapotherm, Inc.\nBy:\nName:\nTitle: President\nEMPLOYEE\n[Name]\nEMPLOYEE HEREBY CERTIFIES AND ACKNOWLEDGES THAT EMPLOYEE HAS CAREFULLY READ ALL OF THE PROVISIONS OF\nTHIS AGREEMENT AND THAT EMPLOYEE UNDERSTANDS AND WILL FULLY AND FAITHFULLY COMPLIES WITH SUCH\nPROVISIONS.\nEMPLOYEE\n[Name]\nSchedule A\nThe following “Inventions,” as that term is defined in the Agreement to which this Attachment affixed, if any, are claimed by Employee:	EX-10.25 17 d567323dex1025.htm EX-10.25\nExhibit 10.25\nCONFIDENTIALITY, NON-COMPETE AND\nASSIGNMENT OF INVENTIONS AGREEMENT\nThis CONFIDENTIALITY, NON-COMPETE AND ASSIGNMENT OF INVENTIONS AGREEMENT ("Agreement"') is dated as of the\nday of\n20_ by and between\n(the "Employee") and Vapotherm, Inc., a Maryland corporation.\nIn exchange for being retained as a Employee to perform services for the Company (hereinafter referred to as the "engagement") by Vapotherm,\nInc. (the "Company."). Employee hereby agrees effective as of\nas follows:\n1. Assignment of Inventions. Without further compensation, Employee hereby agrees promptly to disclose to the Company, and Employee\nhereby assigns and agrees to assign to the Company or its designee, Employee's entire right, title, and interest in and to all Inventions (as defined herein)\nwhich: (a) pertain to any line of business activity of the Company, (b) are aided by the use of time, equipment, supplies, materials, facilities, services, or\ntrade secrets of the Company, or (c) relate to any of Employee's work during engagement. Employee hereby waives and quitclaims to the Company any\nand all claims of any nature whatsoever that Employee now or hereafter may have for infringement for any Inventions so assigned to the Company. If in\nthe course of engagement, Employee uses in or incorporates into or permits the Company to use in or incorporate into a released or unreleased Company\nproduct, program, process, or machine, an invention owned by Employee or in which Employee has an interest, the Company is hereby granted and\nshall have an exclusive royalty-free, irrevocable, worldwide license to make, have made, use, and sell that invention without restriction as to the extent\nof Employee's ownership or interest. No rights are hereby conveyed in Inventions, if any, made by Employee prior to engagement which are identified\non Schedule A hereto or in Inventions to which the Company enjoys no claim under applicable law.\n2. Obtaining and Enforcing Inventions. Employee agrees to perform, at Company expense, during and after engagement, all acts deemed\nnecessary or desirable by the Company to permit and assist Company, in obtaining and enforcing the full benefits, enjoyment, rights and title throughout\nthe world in the Inventions hereby assigned to the Company. If Employee does not cooperate fully in signing documents, Employee hereby authorizes\nCompany to execute on Employee's behalf as Employee's attorney in fact for the limited purpose of perfecting Company's rights in such Inventions, as\nif Employee had signed the same myself, any and all documents which are reasonably necessary to perfect Company's rights in such Inventions.\n3. Additional Covenants of Employee: Employee agrees as follows:\n(a) Non-Disclosure. To hold in confidence and not directly or indirectly to use or disclose, either during or after termination of engagement, any\nConfidential Information (as defined herein) Employee obtains or creates during engagement, except to the extent authorized by the Company.\nEmployee further agrees to not disclose any Confidential Information to anyone inside the Company except on a "need-to-know" basis. Employee\nagrees not to make copies of such Confidential Information except as authorized by the Company. Upon termination of engagement or upon an earlier\nrequest of the Company, Employee will return or deliver to the Company all tangible forms of such Confidential Information in Employee's possession\nor control.\n(b) Non-Solicitation of Employees. That during the period of engagement and for a period of one year thereafter, Employee will not solicit or\nencourage any employee of the Company to terminate his or her employment with the Company or to accept employment with any subsequent employer\nwith whom Employee is affiliated in any way.\n(c) Non-Competition. That during the period of engagement and for a period of one year thereafter, Employee will not accept another engagement\nor\nengage\nin\nactivities\ndirectly\nor\nindirectly\ncompetitive\nwith\nproducts\n(including\nactual\nor\ndemonstrably\nanticipated\nresearch\nor\ndevelopment)\non\nwhich\nEmployee worked or about which Employee learned proprietary or confidential or trade secret information during engagement. Employee shall not use\nat any time during the period of engagement or for any time afterwards, any proprietary or confidential or trade secret information which Employee\nlearned during engagement, in a manner which would be injurious to Company.\n4. Inventions and Confidential Information. As used in this Agreement, the term "Inventions" includes, without limitation, electronic designs,\nhardware and software creations, discoveries, formulae, processes, manufacturing techniques, trade secrets, inventions, improvements, concepts,\ntechniques, methods, systems, designs, circuits, cost data, computer programs, development or experimental work, work in progress, ideas and\ncopyrightable or patentable works, including all rights to obtain, register, perfect and enforce these proprietary interests. The term "Confidential\nInformation" means (a) information pertaining to any aspect of the Company's business which is not known by actual or potential competitors of the\nCompany or (b) proprietary information of the Company or its customers or suppliers, whether of a technical nature or otherwise, which the Company\n(or its suppliers or vendors) takes reasonable measures to protect against unauthorized disclosure to or use by third parties, including, without limitation,\ntechnical, financial, marketing, manufacturing, or distribution information, customer or client lists and names; addresses and phone numbers of\nCompany's customers, clients, and employees; or other technical or business information or trade secrets of the Company.\n5. Equitable Relief. Employee acknowledges that any violation of this Agreement by Employee will cause irreparable injury to the Company, and\nthe Company shall be entitled to extraordinary relief in court. Employee agrees that if court proceedings are required to enforce any provision of this\nAgreement, the prevailing party shall be entitled to an award of reasonable and necessary expenses of litigation.\n6. Modifications. This Agreement may be amended, modified and supplemented only by written agreement of the parties hereto.\n7.\nNo Waiver. No failure or delay on the part of any party in exercising any right, power or remedy hereunder shall operate as a waiver thereof;\nnor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other\nright, power or remedy hereunder.\n-2-\n8. Validity. In the event that any provision hereof would, under applicable law, be invalid or unenforceable, such provision shall, to the extent\npermitted under applicable law, be construed by modifying or limiting it so as to be valid and enforceable to the maximum extent possible under\napplicable law. The provisions of this Agreement are severable, and in the event that any provision hereof should be held invalid or unenforceable in any\nrespect, it shall not invalidate, render unenforceable or otherwise affect any other provision hereof.\n9.\nSuccessors and Assigns. This Agreement shall inure to the benefit of the successors and assigns of the Company. The Company may assign its\nrights under this Agreement in connection with any sale, transfer of other disposition of all or a substantial portion of the stock or assets of the Company.\nEmployee may not assign Employee's duties or obligations hereunder.\n10. Miscellaneous. This Agreement and the rights and obligations of the parties relating to the subject matter of this Agreement, shall be governed\nby and construed in accordance with the internal laws of the State of Maryland, without regard to the principles of conflicts of laws thereof. This\nAgreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all other prior agreements and\nunderstandings, both written and oral, between the parties with respect to the subject matter hereof. This Agreement may be executed in one or more\ncounterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same agreement. The descriptive\nheadings herein are inserted for convenience of reference only.\n-3-\nIN WITNESS WHEREOF, the parties have executed this Consulting Agreement as of the date and year first above written.\nVapotherm, Inc.\nBy:\nName:\nTitle: President\nEMPLOYEE\n[Name]\nEMPLOYEE HEREBY CERTIFIES AND ACKNOWLEDGES THAT EMPLOYEE HAS CAREFULLY READ ALL OF THE PROVISIONS OF\nTHIS AGREEMENT AND THAT EMPLOYEE UNDERSTANDS AND WILL FULLY AND FAITHFULLY COMPLIES WITH SUCH\nPROVISIONS.\nEMPLOYEE\n[Name]\nSchedule A\nThe following "Inventions," as that term is defined in the Agreement to which this Attachment affixed, if any, are claimed by Employee:	EX-10.25 17 d567323dex1025.htm EX-10.25\nExhibit 10.25\nCONFIDENTIALITY, NON-COMPETE AND\nASSIGNMENT OF INVENTIONS AGREEMENT\nThis CONFIDENTIALITY, NON-COMPETE AND ASSIGNMENT OF INVENTIONS AGREEMENT (“Agreement’’) is dated as of the ____\nday of __________, 20__, by and between __________ (the “Employee”) and Vapotherm, Inc., a Maryland corporation.\nIn exchange for being retained as a Employee to perform services for the Company (hereinafter referred to as the “engagement”) by Vapotherm,\nInc. (the “Company”). Employee hereby agrees effective as of _________,\n____\nas follows:\n1. Assignment of Inventions. Without further compensation, Employee hereby agrees promptly to disclose to the Company, and Employee\nhereby assigns and agrees to assign to the Company or its designee, Employee’s entire right, title, and interest in and to all Inventions (as defined herein)\nwhich: (a) pertain to any line of business activity of the Company, (b) are aided by the use of time, equipment, supplies, materials, facilities, services, or\ntrade secrets of the Company, or (c) relate to any of Employee’s work during engagement. Employee hereby waives and quitclaims to the Company any\nand all claims of any nature whatsoever that Employee now or hereafter may have for infringement for any Inventions so assigned to the Company. If in\nthe course of engagement, Employee uses in or incorporates into or permits the Company to use in or incorporate into a released or unreleased Company\nproduct, program, process, or machine, an invention owned by Employee or in which Employee has an interest, the Company is hereby granted and\nshall have an exclusive royalty-free, irrevocable, worldwide license to make, have made, use, and sell that invention without restriction as to the extent\nof Employee’s ownership or interest. No rights are hereby conveyed in Inventions, if any, made by Employee prior to engagement which are identified\non Schedule A hereto or in Inventions to which the Company enjoys no claim under applicable law.\n2. Obtaining and Enforcing Inventions. Employee agrees to perform, at Company expense, during and after engagement, all acts deemed\nnecessary or desirable by the Company to permit and assist Company, in obtaining and enforcing the full benefits, enjoyment, rights and title throughout\nthe world in the Inventions hereby assigned to the Company. If Employee does not cooperate fully in signing documents, Employee hereby authorizes\nCompany to execute on Employee’s behalf as Employee’s attorney in fact for the limited purpose of perfecting Company’s rights in such Inventions, as\nif Employee had signed the same myself, any and all documents which are reasonably necessary to perfect Company’s rights in such Inventions.\n3. Additional Covenants of Employee: Employee agrees as follows:\n(a) Non-Disclosure. To hold in confidence and not directly or indirectly to use or disclose, either during or after termination of engagement, any\nConfidential Information (as defined herein) Employee obtains or creates during engagement, except to the extent authorized by the Company.\nEmployee further agrees to not disclose any Confidential Information to anyone inside the Company except on a “need-to-know” basis. Employee\nagrees not to make copies of such Confidential Information except as authorized by the Company. Upon termination of engagement or upon an earlier\nrequest of the Company, Employee will return or deliver to the Company all tangible forms of such Confidential Information in Employee’s possession\nor control.\n(b) Non-Solicitation of Employees. That during the period of engagement and for a period of one year thereafter, Employee will not solicit or\nencourage any employee of the Company to terminate his or her employment with the Company or to accept employment with any subsequent employer\nwith whom Employee is affiliated in any way.\n(c) Non-Competition. That during the period of engagement and for a period of one year thereafter, Employee will not accept another engagement\nor engage in activities directly or indirectly competitive with products (including actual or demonstrably anticipated research or development) on which\nEmployee worked or about which Employee learned proprietary or confidential or trade secret information during engagement. Employee shall not use\nat any time during the period of engagement or for any time afterwards, any proprietary or confidential or trade secret information which Employee\nlearned during engagement, in a manner which would be injurious to Company.\n4. Inventions and Confidential Information. As used in this Agreement, the term “Inventions” includes, without limitation, electronic designs,\nhardware and software creations, discoveries, formulae, processes, manufacturing techniques, trade secrets, inventions, improvements, concepts,\ntechniques, methods, systems, designs, circuits, cost data, computer programs, development or experimental work, work in progress, ideas and\ncopyrightable or patentable works, including all rights to obtain, register, perfect and enforce these proprietary interests. The term “Confidential\nInformation” means (a) information pertaining to any aspect of the Company’s business which is not known by actual or potential competitors of the\nCompany or (b) proprietary information of the Company or its customers or suppliers, whether of a technical nature or otherwise, which the Company\n(or its suppliers or vendors) takes reasonable measures to protect against unauthorized disclosure to or use by third parties, including, without limitation,\ntechnical, financial, marketing, manufacturing, or distribution information, customer or client lists and names; addresses and phone numbers of\nCompany’s customers, clients, and employees; or other technical or business information or trade secrets of the Company.\n5. Equitable Relief. Employee acknowledges that any violation of this Agreement by Employee will cause irreparable injury to the Company, and\nthe Company shall be entitled to extraordinary relief in court. Employee agrees that if court proceedings are required to enforce any provision of this\nAgreement, the prevailing party shall be entitled to an award of reasonable and necessary expenses of litigation.\n6. Modifications. This Agreement may be amended, modified and supplemented only by written agreement of the parties hereto.\n7. No Waiver. No failure or delay on the part of any party in exercising any right, power or remedy hereunder shall operate as a waiver thereof;\nnor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other\nright, power or remedy hereunder.\n-2-\n8. Validity. In the event that any provision hereof would, under applicable law, be invalid or unenforceable, such provision shall, to the extent\npermitted under applicable law, be construed by modifying or limiting it so as to be valid and enforceable to the maximum extent possible under\napplicable law. The provisions of this Agreement are severable, and in the event that any provision hereof should be held invalid or unenforceable in any\nrespect, it shall not invalidate, render unenforceable or otherwise affect any other provision hereof.\n9. Successors and Assigns. This Agreement shall inure to the benefit of the successors and assigns of the Company. The Company may assign its\nrights under this Agreement in connection with any sale, transfer of other disposition of all or a substantial portion of the stock or assets of the Company.\nEmployee may not assign Employee’s duties or obligations hereunder.\n10. Miscellaneous. This Agreement and the rights and obligations of the parties relating to the subject matter of this Agreement, shall be governed\nby and construed in accordance with the internal laws of the State of Maryland, without regard to the principles of conflicts of laws thereof. This\nAgreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all other prior agreements and\nunderstandings, both written and oral, between the parties with respect to the subject matter hereof. This Agreement may be executed in one or more\ncounterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same agreement. The descriptive\nheadings herein are inserted for convenience of reference only.\n-3-\nIN WITNESS WHEREOF, the parties have executed this Consulting Agreement as of the date and year first above written.\nVapotherm, Inc.\nBy:\nName:\nTitle: President\nEMPLOYEE\n[Name]\nEMPLOYEE HEREBY CERTIFIES AND ACKNOWLEDGES THAT EMPLOYEE HAS CAREFULLY READ ALL OF THE PROVISIONS OF\nTHIS AGREEMENT AND THAT EMPLOYEE UNDERSTANDS AND WILL FULLY AND FAITHFULLY COMPLIES WITH SUCH\nPROVISIONS.\nEMPLOYEE\n[Name]\nSchedule A\nThe following “Inventions,’’ as that term is defined in the Agreement to which this Attachment affixed, if any, are claimed by Employee:
f219da8204a589598fff0b73b13c751d.pdf	effective_date jurisdiction party term	EX-99.1 2 d739574dex991.htm EXHIBIT 99.1\nEXHIBIT 99_1\nMUTUAL NONDISCLOSURE AGREEMENT\nZIPREALTY, INC.\nTHIS AGREEMENT is made as of June 3, 2014 by and between ZipRealty, Inc., a Delaware corporation (“ZipRealty”), and Osmium\nPartners, LLC (“Company”) (the “Agreement”).\n1. Permitted Purpose. ZipRealty and Company wish to explore a potential business opportunity under which each party (the “disclosing\nparty”) may disclose its Confidential Information to the other party (the “receiving party”) solely for the purpose of that potential business\nopportunity (the “Permitted Purpose”).\n2. Definition of Confidential Information. “Confidential Information” means any information, technical data, trade secrets or know-how\nof the disclosing party or its customers, vendors, business partners or investors that is provided to the recipient party by or on behalf of the\ndisclosing party, either directly or indirectly, whether in writing, electronically, orally or by observation, including, but not limited to, research,\nproducts, services, product plans, clients, client lists, lead lists, markets, marketing, expansion plans, databases, software, developments,\ninventions, processes, technology, maskworks, designs, drawings, engineering, hardware configuration information, finances, financial results or\nother business information, in each case which the disclosing party considers to be confidential or proprietary. Confidential Information does not\ninclude information, technical data, trade secrets or know-how that: (i) is in the possession of, or becomes available to, the receiving party on a\nnon-confidential basis, as shown by the receiving party’s files and records, and such information was received from a source not known by the\nreceiving party to be bound by any obligation not to disclose the information, (ii) prior or after the time of disclosure becomes part of the public\nknowledge or literature, not as a result of any inaction or action of the receiving party, (iii) is independently developed or derived by the\nreceiving party without reference to, or the use of, any Confidential Information, or (iv) is approved for release by the disclosing party in writing.\n3. Non-Disclosure of Confidential Information. ZipRealty and Company agree not to use the Confidential Information disclosed to it by\nthe other party for any purpose except the Permitted Purpose. Neither party will disclose any Confidential Information of the other party to third\nparties except those directors, officers, partners, employees, consultants and agents (collectively, “Representatives”) who need to have the\ninformation in order to carry out the Permitted Purpose. The Representatives shall be informed of the confidential nature of the Confidential\nInformation and shall agree not to disclose any of the Confidential Information to any other party. In any event, each party will be liable for any\nbreach of this Agreement by any of its Representatives. Each party agrees that it will take all reasonable measures to protect the secrecy of and\navoid disclosure or nonpermitted use of Confidential Information of the other party in order to prevent it from falling into the public domain or\nthe possession of persons other than those persons authorized hereunder to have any such information, which measures will include the highest\ndegree of care that either party utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other party\nin writing of any misuse or misappropriation of such Confidential Information that may come to its attention.\n4. Disclosure Required by Law. In the event that the receiving party or any of its Representatives is requested or required by legal process\nto disclose any of the Confidential Information of the disclosing party, the receiving party will give prompt written notice to the disclosing party\nso that the disclosing party may seek, at its expense, a protective order or other appropriate relief. In the event that such protective order is not\nobtained, the receiving party or its Representatives will disclose only that portion of the Confidential Information that, in the advice of its\ncounsel, it is legally required to disclose.\n5. Return of Materials. Any materials or documents that have been furnished by or on behalf of the disclosing party to the receiving party\nor its Representatives will be returned to the disclosing party, and all copies of such documentation will be destroyed as far as technically\nfeasible, promptly upon request (at the disclosing party’s cost). Notwithstanding the foregoing, the Company may retain one (1) copy of\nelectronically stored information or other written materials as required by applicable law and regulation.\n6. Information Provided As Is. Each disclosing party acknowledges that it has attempted in good faith to provide accurate information to\nthe receiving party. Notwithstanding that attempt, the disclosing party makes no representations or warranties, express or implied, to the\nreceiving party regarding, and the receiving party may not rely on, the completeness or accuracy of any information provided to the receiving\nparty.\n7. No License Granted. Nothing in this Agreement is intended to grant any rights to either party or any of its Representatives under any\npatent, copyright, trade secret or other intellectual property right, nor does this Agreement grant either party or any of its Representatives any\nrights in or to the other party’s information, except the limited right to use such information solely for the Permitted Purpose.\n8. No Trading on Inside Information. Company is aware, and will advise its Representatives who are provided any Confidential\nInformation of ZipRealty, of the restrictions imposed by federal securities laws on the purchase or sale of ZipRealty’s securities by any person\nwho has received material non-public information from ZipRealty or its Representatives and on the communication of such information to any\nother person when it is reasonably foreseeable that such other person may purchase or sell ZipRealty’s securities while in possession of such\ninformation.\n9. Public Company Standstill. Unless previously approved by the Board of Directors of the disclosing party, for a period of six months\nfrom the date of this Agreement, each receiving party will not, and will instruct and use its commercially reasonable efforts to cause its\nRepresentatives not to, directly or indirectly:\n(a) inquire about, announce or make any offer or proposal (including, without limitation, any offer or proposal to the stockholders\nof the disclosing party) concerning an Acquisition Transaction (as defined below);\n-2-\n(b) knowingly encourage, solicit or discuss with, or provide any Confidential Information of the disclosing party to, any person or\nentity with respect to any inquiry or announcement regarding or the making of any offer or proposal concerning any Acquisition Transaction;\n(c) otherwise knowingly facilitate or participate in any effort or attempt to make or implement any Acquisition Transaction;\n(d) participate in any “solicitation” of “proxies” to vote (as such terms are used in the rules and regulations of the Securities and\nExchange Commission), or seek to advise or influence any person or entity with respect to the voting of, any securities of the disclosing party;\n(e) otherwise act or seek to control or influence the management, Board of Directors or other policies of the disclosing party; or\n(f) request the disclosing party or any of its Representatives to amend or waive any provisions of this paragraph 9.\nAs used in this paragraph 9, “Acquisition Transaction” means any acquisition or exchange of all or any material portion of the assets of, or 15%\nor more of the equity interest in, the disclosing party or any of its subsidiaries (by purchase on the Nasdaq Stock Market or New York Stock\nExchange, as applicable, direct purchase from the other party, tender or exchange offer or otherwise) or any business combination, merger or\nsimilar transaction (including an exchange of stock or assets) with or involving the disclosing party or any it its subsidiaries.\n10. No Recruitment of Other Party’s Employees. Each party will not, and will instruct and use its commercially reasonable efforts to\ncause its Representatives not to, directly or indirectly, recruit or solicit for hire any of the other party’s employees, or aid anyone else in recruiting\nor soliciting for hire any of the other party’s employees, or induce or otherwise encourage any of the other party’s employees to leave their\nemployment with the other party, provided that general, non-targeted advertisements or solicitations through independent employment recruiters\nwill not be deemed to breach the foregoing provisions of this sentence.\n11. No Conflicting Obligations. Each disclosing party hereby represents and warrants that it may rightfully disclose the Confidential\nInformation to the receiving party, and to enter into the potential business opportunity being explored, in each case without violating any\ncontractual, legal, fiduciary or other obligation to any person.\n12. Entire Agreement. This Agreement sets forth the entire understanding of the parties concerning the matters set forth herein. Except as\nset forth in this Agreement, neither party will be committed in any way concerning the potential business opportunity being explored unless and\nuntil a definitive written agreement with respect thereto is duly authorized and executed by the appropriate officers of both parties.\n13. Governing Law and Jurisdiction. This Agreement will be governed by and construed and enforced in accordance with the internal\nlaws of the State of California without regard to its\n-3-\nconflict-of-laws principles. The federal and state courts within the State of California will have exclusive jurisdiction to adjudicate any dispute\narising out of this Agreement. Each party irrevocably consents to the personal jurisdiction of such courts and expressly waives any objection to\nsuch jurisdiction based on inconvenient forum or otherwise.\n14. Remedies. Each party agrees that its obligations hereunder are necessary and reasonable in order to protect the other party and the other\nparty’s business and expressly agrees that monetary damages may be inadequate to compensate the other party for any breach by either party of\nany covenants and agreements set forth herein. Accordingly, each party agrees and acknowledges that any such violation or threatened violation\nmay cause irreparable injury to the other party and that, in addition to any other remedies that may be available, in law, in equity or otherwise,\nthe other party will be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach,\nwithout the necessity of proving actual damages.\n15. Miscellaneous. This Agreement will be binding upon and for the benefit of the undersigned parties, their successors and assigns.\nFailure to enforce any provision of this Agreement will not constitute a waiver of any term hereof. This Agreement may not be amended except\nby a writing signed by both ZipRealty and Company. Each party may sign any number of identical counterparts of this Agreement with the same\neffect as if the parties signed the same document and all of which shall be considered one and the same agreement. A copy of this Agreement\nsigned by a party and delivered by facsimile (or email) transmission to the other party shall have the same effect as the delivery of an original of\nthis Agreement containing the original signature of such party.\n16. Term. The foregoing commitments in this Agreement will survive any termination of discussions between the parties, and will continue\nfor a period of one (1) year following the date of this Agreement, except to the extent explicitly terminated in writing by both ZipRealty and\nCompany.\nZIPREALTY, INC.\nOSMIUM PARTNERS, LLC\nBy: /s/ Lanny Baker\nBy: /s/ John H. Lewis\nPrint Name: Lanny Baker\nPrint Name: John H. Lewis\nPrint Title: President & CEO\nPrint Title: Managing Partner\n-4-	EX-99.1 2 d739574dex991.htm EXHIBIT 99.1\nEXHIBIT 99_1\nMUTUAL NONDISCLOSURE AGREEMENT\nZIPREALTY, INC.\nTHIS AGREEMENT is made as of June 3, 2014 by and between ZipRealty, Inc., a Delaware corporation (“ZipRealty”), and Osmium\nPartners, LL.C (“Company”) (the “Agreement”).\n1. Permitted Purpose. ZipRealty and Company wish to explore a potential business opportunity under which each party (the “disclosing\nparty”) may disclose its Confidential Information to the other party (the “receiving party”) solely for the purpose of that potential business\nopportunity (the “Permitted Purpose™).\n \n2. Definition of Confidential Information. “Confidential Information” means any information, technical data, trade secrets or know-how\nof the disclosing party or its customers, vendors, business partners or investors that is provided to the recipient party by or on behalf of the\ndisclosing party, either directly or indirectly, whether in writing, electronically, orally or by observation, including, but not limited to, research,\nproducts, services, product plans, clients, client lists, lead lists, markets, marketing, expansion plans, databases, software, developments,\ninventions, processes, technology, maskworks, designs, drawings, engineering, hardware configuration information, finances, financial results or\nother business information, in each case which the disclosing party considers to be confidential or proprietary. Confidential Information does not\ninclude information, technical data, trade secrets or know-how that: (i) is in the possession of, or becomes available to, the receiving party on a\nnon-confidential basis, as shown by the receiving party’s files and records, and such information was received from a source not known by the\nreceiving party to be bound by any obligation not to disclose the information, (ii) prior or after the time of disclosure becomes part of the public\nknowledge or literature, not as a result of any inaction or action of the receiving party, (iii) is independently developed or derived by the\nreceiving party without reference to, or the use of, any Confidential Information, or (iv) is approved for release by the disclosing party in writing.\n3. Non-Disclosure of Confidential Information. ZipRealty and Company agree not to use the Confidential Information disclosed to it by\nthe other party for any purpose except the Permitted Purpose. Neither party will disclose any Confidential Information of the other party to third\nparties except those directors, officers, partners, employees, consultants and agents (collectively, “Representatives”) who need to have the\ninformation in order to carry out the Permitted Purpose. The Representatives shall be informed of the confidential nature of the Confidential\nInformation and shall agree not to disclose any of the Confidential Information to any other party. In any event, each party will be liable for any\nbreach of this Agreement by any of its Representatives. Each party agrees that it will take all reasonable measures to protect the secrecy of and\navoid disclosure or nonpermitted use of Confidential Information of the other party in order to prevent it from falling into the public domain or\nthe possession of persons other than those persons authorized hereunder to have any such information, which measures will include the highest\ndegree of care that either party utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other party\nin writing of any misuse or misappropriation of such Confidential Information that may come to its attention.\n4. Disclosure Required by Law. In the event that the receiving party or any of its Representatives is requested or required by legal process\nto disclose any of the Confidential Information of the disclosing party, the receiving party will give prompt written notice to the disclosing party\nso that the disclosing party may seek, at its expense, a protective order or other appropriate relief. In the event that such protective order is not\nobtained, the receiving party or its Representatives will disclose only that portion of the Confidential Information that, in the advice of its\ncounsel, it is legally required to disclose.\n5. Return of Materials. Any materials or documents that have been furnished by or on behalf of the disclosing party to the receiving party\nor its Representatives will be returned to the disclosing party, and all copies of such documentation will be destroyed as far as technically\nfeasible, promptly upon request (at the disclosing party’s cost). Notwithstanding the foregoing, the Company may retain one (1) copy of\nelectronically stored information or other written materials as required by applicable law and regulation.\n6. Information Provided As Is. Each disclosing party acknowledges that it has attempted in good faith to provide accurate information to\nthe receiving party. Notwithstanding that attempt, the disclosing party makes no representations or warranties, express or implied, to the\nreceiving party regarding, and the receiving party may not rely on, the completeness or accuracy of any information provided to the receiving\nparty.\n7. No License Granted. Nothing in this Agreement is intended to grant any rights to either party or any of its Representatives under any\npatent, copyright, trade secret or other intellectual property right, nor does this Agreement grant either party or any of its Representatives any\nrights in or to the other party’s information, except the limited right to use such information solely for the Permitted Purpose.\n8. No Trading on Inside Information. Company is aware, and will advise its Representatives who are provided any Confidential\nInformation of ZipRealty, of the restrictions imposed by federal securities laws on the purchase or sale of ZipRealty’s securities by any person\nwho has received material non-public information from ZipRealty or its Representatives and on the communication of such information to any\nother person when it is reasonably foreseeable that such other person may purchase or sell ZipRealty’s securities while in possession of such\ninformation.\n9. Public Company Standstill. Unless previously approved by the Board of Directors of the disclosing party, for a period of six months\nfrom the date of this Agreement, each receiving party will not, and will instruct and use its commercially reasonable efforts to cause its\nRepresentatives not to, directly or indirectly:\n(a) inquire about, announce or make any offer or proposal (including, without limitation, any offer or proposal to the stockholders\nof the disclosing party) concerning an Acquisition Transaction (as defined below);\n-\n(b) knowingly encourage, solicit or discuss with, or provide any Confidential Information of the disclosing party to, any person or\nentity with respect to any inquiry or announcement regarding or the making of any offer or proposal concerning any Acquisition Transaction;\n(c) otherwise knowingly facilitate or participate in any effort or attempt to make or implement any Acquisition Transaction;\n(d) participate in any “solicitation” of “proxies” to vote (as such terms are used in the rules and regulations of the Securities and\nExchange Commission), or seek to advise or influence any person or entity with respect to the voting of, any securities of the disclosing party;\n(e) otherwise act or seek to control or influence the management, Board of Directors or other policies of the disclosing party; or\n(f) request the disclosing party or any of its Representatives to amend or waive any provisions of this paragraph 9.\nAs used in this paragraph 9, “Acquisition Transaction” means any acquisition or exchange of all or any material portion of the assets of, or 15%\nor more of the equity interest in, the disclosing party or any of its subsidiaries (by purchase on the Nasdaq Stock Market or New York Stock\nExchange, as applicable, direct purchase from the other party, tender or exchange offer or otherwise) or any business combination, merger or\nsimilar transaction (including an exchange of stock or assets) with or involving the disclosing party or any it its subsidiaries.\n10. No Recruitment of Other Party’s Employees. Each party will not, and will instruct and use its commercially reasonable efforts to\ncause its Representatives not to, directly or indirectly, recruit or solicit for hire any of the other party’s employees, or aid anyone else in recruiting\nor soliciting for hire any of the other party’s employees, or induce or otherwise encourage any of the other party’s employees to leave their\nemployment with the other party, provided that general, non-targeted advertisements or solicitations through independent employment recruiters\nwill not be deemed to breach the foregoing provisions of this sentence.\n11. No Conflicting Obligations. Each disclosing party hereby represents and warrants that it may rightfully disclose the Confidential\nInformation to the receiving party, and to enter into the potential business opportunity being explored, in each case without violating any\ncontractual, legal, fiduciary or other obligation to any person.\n12. Entire Agreement. This Agreement sets forth the entire understanding of the parties concerning the matters set forth herein. Except as\nset forth in this Agreement, neither party will be committed in any way concerning the potential business opportunity being explored unless and\nuntil a definitive written agreement with respect thereto is duly authorized and executed by the appropriate officers of both parties.\n13. Governing L.aw and Jurisdiction. This Agreement will be governed by and construed and enforced in accordance with the internal\nlaws of the State of California without regard to its\n_3-\nconflict-of-laws principles. The federal and state courts within the State of California will have exclusive jurisdiction to adjudicate any dispute\narising out of this Agreement. Each party irrevocably consents to the personal jurisdiction of such courts and expressly waives any objection to\nsuch jurisdiction based on inconvenient forum or otherwise.\n14. Remedies. Each party agrees that its obligations hereunder are necessary and reasonable in order to protect the other party and the other\nparty’s business and expressly agrees that monetary damages may be inadequate to compensate the other party for any breach by either party of\nany covenants and agreements set forth herein. Accordingly, each party agrees and acknowledges that any such violation or threatened violation\nmay cause irreparable injury to the other party and that, in addition to any other remedies that may be available, in law, in equity or otherwise,\nthe other party will be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach,\nwithout the necessity of proving actual damages.\n15. Miscellaneous. This Agreement will be binding upon and for the benefit of the undersigned parties, their successors and assigns.\nFailure to enforce any provision of this Agreement will not constitute a waiver of any term hereof. This Agreement may not be amended except\nby a writing signed by both ZipRealty and Company. Each party may sign any number of identical counterparts of this Agreement with the same\neffect as if the parties signed the same document and all of which shall be considered one and the same agreement. A copy of this Agreement\nsigned by a party and delivered by facsimile (or email) transmission to the other party shall have the same effect as the delivery of an original of\nthis Agreement containing the original signature of such party.\n16. Term. The foregoing commitments in this Agreement will survive any termination of discussions between the parties, and will continue\nfor a period of one (1) year following the date of this Agreement, except to the extent explicitly terminated in writing by both ZipRealty and\nCompany.\nZIPREALTY, INC. OSMIUM PARTNERS, LL.C\nBy: /s/ Lanny Baker By: /s/ John H. Lewis\nPrint Name: Lanny Baker Print Name: John H. Lewis\nPrint Title: President & CEO Print Title: Managing Partner	EX-99.1 2 d739574dex991.htm EXHIBIT 99.1\nEXHIBIT 99_1\nMUTUAL NONDISCLOSURE AGREEMENT\nZIPREALTY, INC.\nTHIS AGREEMENT is made as of June 3, 2014 by and between ZipRealty, Inc., a Delaware corporation ("ZipRealty."), and Osmium\nPartners, LLC ("Company.") (the "Agreement").\n1. Permitted Purpose. ZipRealty and Company wish to explore a potential business opportunity under which each party (the "disclosing\nparty.") may disclose its Confidential Information to the other party (the "receiving.party." solely for the purpose of that potential business\nopportunity (the "Permitted Purpose").\n2. Definition of Confidential Information. "Confidential Information" means any information, technical data, trade secrets or know-how\nof the disclosing party or its customers, vendors, business partners or investors that is provided to the recipient party by or on behalf of the\ndisclosing party, either directly or indirectly, whether in writing, electronically, orally or by observation, including, but not limited to, research,\nproducts, services, product plans, clients, client lists, lead lists, markets, marketing, expansion plans, databases, software, developments,\ninventions, processes, technology, maskworks, designs, drawings, engineering, hardware configuration information, finances, financial results or\nother business information, in each case which the disclosing party considers to be confidential or proprietary. Confidential Information\ndoes\nnot\ninclude information, technical data, trade secrets or know-how that: (i) is in the possession of, or becomes available to, the receiving party on a\nnon-confidential basis, as shown by the receiving party's files and records, and such information was received from a source not known by the\nreceiving party to be bound by any obligation not to disclose the information, (ii) prior or after the time of disclosure becomes part of the public\nknowledge or literature, not as a result of any inaction or action of the receiving party, (iii) is independently developed or derived by the\nreceiving party without reference to, or the use of, any Confidential Information, or (iv) is approved for release by the disclosing party in writing.\n3. Non-Disclosure of Confidential Information. ZipRealty and Company agree not to use the Confidential Information disclosed to it by\nthe other party for any purpose except the Permitted Purpose. Neither party will disclose any Confidential Information of the other party to third\nparties except those directors, officers, partners, employees, consultants and agents (collectively, "Representatives") who need to have the\ninformation in order to carry out the Permitted Purpose. The Representatives shall be informed of the confidential nature of the Confidential\nInformation and shall agree not to disclose any of the Confidential Information to any other party. In any event, each party will be liable for any\nbreach of this Agreement by any of its Representatives. Each party agrees that it will take all reasonable measures to protect the secrecy of and\navoid disclosure or nonpermitted use of Confidential Information of the other party in order to prevent it from falling into the public domain\nor\nthe possession of persons other than those persons authorized hereunder to have any such information, which measures will include the highest\ndegree of care that either party utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other party\nin writing of any misuse or misappropriation of such Confidential Information that may come to its attention.\n4. Disclosure Required by Law In the event that the receiving party or any of its Representatives is requested or required by legal process\nto disclose any of the Confidential Information of the disclosing party, the receiving party will give prompt written notice to the disclosing party\nso that the disclosing party may seek, at its expense, a protective order or other appropriate relief. In the event that such protective order is not\nobtained, the receiving party or its Representatives will disclose only that portion of the Confidential Information that, in the advice of its\ncounsel, it is legally required to disclose.\n5. Return of Materials. Any materials or documents that have been furnished by or on behalf of the disclosing party to the receiving party\nor its Representatives will be returned to the disclosing party, and all copies of such documentation will be destroyed as far as technically\nfeasible, promptly upon request (at the disclosing party's cost). Notwithstanding the foregoing, the Company may retain one (1) copy of\nelectronically stored information or other written materials as required by applicable law and regulation.\n6. Information Provided As Is. Each disclosing party acknowledges that it has attempted in good faith to provide accurate information to\nthe receiving party. Notwithstanding that attempt, the disclosing party makes no representations or warranties, express or implied, to the\nreceiving party regarding, and the receiving party may not rely on, the completeness or accuracy of any information provided to the receiving\nparty.\n7. No License Granted. Nothing in this Agreement is intended to grant any rights to either party or any of its Representatives under any\npatent, copyright, trade secret or other intellectual property right, nor does this Agreement grant either party or any of its Representatives any\nrights in or to the other party's information, except the limited right to use such information solely for the Permitted Purpose.\n8. No Trading on Inside Information. Company is aware, and will advise its Representatives who are provided any Confidential\nInformation of ZipRealty, of the restrictions imposed by federal securities laws on the purchase or sale of ZipRealty's securities by any person\nwho\nhas received material non-public information from ZipRealty or its Representatives and on the communication of such information to any\nother person when it is reasonably foreseeable that such other person may purchase or sell ZipRealty's securities while in possession of such\ninformation.\n9. Public Company Standstill. Unless previously approved by the Board of Directors of the disclosing party, for a period of six months\nfrom the date of this Agreement, each receiving party will not, and will instruct and use its commercially reasonable efforts to cause its\nRepresentatives not to, directly or indirectly:\n(a)\ninquire about, announce or make any offer or proposal (including, without limitation, any offer or proposal to the stockholders\nof the disclosing party) concerning an Acquisition Transaction (as defined below);\n-2-\n(b) knowingly encourage, solicit or discuss with, or provide any Confidential Information of the disclosing party to, any person or\nentity with respect to any inquiry or announcement regarding or the making of any offer or proposal concerning any Acquisition Transaction;\n(c) otherwise knowingly facilitate or participate in any effort or attempt to make or implement any Acquisition Transaction;\n(d) participate in any "solicitation" of "proxies" to vote (as such terms are used in the rules and regulations of the Securities and\nExchange Commission), or seek to advise or influence any person or entity with respect to the voting of, any securities of the disclosing party;\n(e) otherwise act or seek to control or influence the management, Board of Directors or other policies of the disclosing party; or\n(f)\nrequest the disclosing party or any of its Representatives to amend or waive any provisions of this paragraph\n9.\nAs used in this paragraph 9, "Acquisition Transaction" means any acquisition or exchange of all or any material portion of the assets of, or 15%\nor more of the equity interest in, the disclosing party or any of its subsidiaries (by purchase on the Nasdaq Stock Market or New York Stock\nExchange, as applicable, direct purchase from the other party, tender or exchange offer or otherwise) or any business combination, merger or\nsimilar transaction (including an exchange of stock or assets) with or involving the disclosing party or any it its subsidiaries.\n10. No Recruitment of Other Party's Employees. Each party will not, and will instruct and use its commercially reasonable efforts to\ncause its Representatives not to, directly or indirectly, recruit or solicit for hire any of the other party's employees, or aid anyone else in recruiting\nor soliciting for hire any of the other party's employees, or induce or otherwise encourage any of the other party's employees to leave their\nemployment with the other party, provided that general, non-targeted advertisements or solicitations through independent employment recruiters\nwill not be deemed to breach the foregoing provisions of this sentence.\n11. No Conflicting Obligations. Each disclosing party hereby represents and warrants that it may rightfully disclose the Confidential\nInformation to the receiving party, and to enter into the potential business opportunity being explored, in each case without violating any\ncontractual, legal, fiduciary or other obligation to any person.\n12. Entire Agreement. This Agreement sets forth the entire understanding of the parties concerning the matters set forth herein. Except as\nset forth in this Agreement, neither party will be committed in any way concerning the potential business opportunity being explored unless and\nuntil a definitive written agreement with respect thereto is duly authorized and executed by the appropriate officers of both parties.\n13. Governing Law and Jurisdiction. This Agreement will be governed by and construed and enforced in accordance with the internal\nlaws of the State of California without regard to its\n-3-\nconflict-of-laws principles. The federal and state courts within the State of California will have exclusive jurisdiction to adjudicate any dispute\narising out of this Agreement. Each party irrevocably consents to the personal jurisdiction of such courts and expressly waives any objection to\nsuch jurisdiction based on inconvenient forum or otherwise.\n14.\nRemedies. Each party agrees that its obligations hereunder are necessary and reasonable in order to protect the other party and the other\nparty's business and expressly agrees that monetary damages may be inadequate to compensate the other party for any breach by either party of\nany covenants and agreements set forth herein. Accordingly, each party agrees and acknowledges that any such violation or threatened violation\nmay cause irreparable injury to the other party and that, in addition to any other remedies that may be available, in law, in equity or otherwise,\nthe other party will be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach,\nwithout the necessity of proving actual damages.\n15. Miscellaneous. This Agreement will be binding upon and for the benefit of the undersigned parties, their successors and assigns.\nFailure to enforce any provision of this Agreement will not constitute a waiver of any term hereof. This Agreement may not be amended except\nby a writing signed by both ZipRealty and Company. Each party may sign any number of identical counterparts of this Agreement with the same\neffect as if the parties signed the same document and all of which shall be considered one and the same agreement. A copy of this Agreement\nsigned by a party and delivered by facsimile (or email) transmission to the other party shall have the same effect as the delivery of an original of\nthis Agreement containing the original signature of such party.\n16. Term. The foregoing commitments in this Agreement will survive any termination of discussions between the parties, and will continue\nfor a period of one (1) year following the date of this Agreement, except to the extent explicitly terminated in writing by both ZipRealty and\nCompany.\nZIPREALTY, INC.\nOSMIUM PARTNERS, LLC\nBy: /s/ Lanny Baker\nBy: /s/ John H. Lewis\nPrint Name: Lanny Baker\nPrint Name: John H. Lewis\nPrint Title: President & CEO\nPrint Title: Managing Partner\n-4-	EX-99.1 2 d739574dex991.htm EXHIBIT 99.1\nEXHIBIT 99_1\nMUTUAL NONDISCLOSURE AGREEMENT\nZIPREALTY, INC.\nTHIS AGREEMENT is made as of June 3, 2014 by and between ZipRealty, Inc., a Delaware corporation (“ZipRealty”), and Osmium\nPartners, LLC (“Company”) (the “Agreement”).\n1. Permitted Purpose. ZipRealty and Company wish to explore a potential business opportunity under which each party (the “disclosing\nparty”) may disclose its Confidential Information to the other party (the “receiving party”) solely for the purpose of that potential business\nopportunity (the “Permitted Purpose”).\n2. Definition of Confidential Information. “Confidential Information” means any information, technical data, trade secrets or know-how\nof the disclosing party or its customers, vendors, business partners or investors that is provided to the recipient party by or on behalf of the\ndisclosing party, either directly or indirectly, whether in writing, electronically, orally or by observation, including, but not limited to, research,\nproducts, services, product plans, clients, client lists, lead lists, markets, marketing, expansion plans, databases, software, developments,\ninventions, processes, technology, maskworks, designs, drawings, engineering, hardware configuration information, finances, financial results or\nother business information, in each case which the disclosing party considers to be confidential or proprietary. Confidential Information does not\ninclude information, technical data, trade secrets or know-how that: (i) is in the possession of, or becomes available to, the receiving party on a\nnon-confidential basis, as shown by the receiving party’s files and records, and such information was received from a source not known by the\nreceiving party to be bound by any obligation not to disclose the information, (ii) prior or after the time of disclosure becomes part of the public\nknowledge or literature, not as a result of any inaction or action of the receiving party, (iii) is independently developed or derived by the\nreceiving party without reference to, or the use of, any Confidential Information, or (iv) is approved for release by the disclosing party in writing.\n3. Non-Disclosure of Confidential Information. ZipRealty and Company agree not to use the Confidential Information disclosed to it by\nthe other party for any purpose except the Permitted Purpose. Neither party will disclose any Confidential Information of the other party to third\nparties except those directors, officers, partners, employees, consultants and agents (collectively, “Representatives”) who need to have the\ninformation in order to carry out the Permitted Purpose. The Representatives shall be informed of the confidential nature of the Confidential\nInformation and shall agree not to disclose any of the Confidential Information to any other party. In any event, each party will be liable for any\nbreach of this Agreement by any of its Representatives. Each party agrees that it will take all reasonable measures to protect the secrecy of and\navoid disclosure or nonpermitted use of Confidential Information of the other party in order to prevent it from falling into the public domain or\nthe possession of persons other than those persons authorized hereunder to have any such information, which measures will include the highest\ndegree of care that either party utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other party\nin writing of any misuse or misappropriation of such Confidential Information that may come to its attention.\n4. Disclosure Required by Law. In the event that the receiving party or any of its Representatives is requested or required by legal process\nto disclose any of the Confidential Information of the disclosing party, the receiving party will give prompt written notice to the disclosing party\nso that the disclosing party may seek, at its expense, a protective order or other appropriate relief. In the event that such protective order is not\nobtained, the receiving party or its Representatives will disclose only that portion of the Confidential Information that, in the advice of its\ncounsel, it is legally required to disclose.\n5. Return of Materials. Any materials or documents that have been furnished by or on behalf of the disclosing party to the receiving party\nor its Representatives will be returned to the disclosing party, and all copies of such documentation will be destroyed as far as technically\nfeasible, promptly upon request (at the disclosing party’s cost). Notwithstanding the foregoing, the Company may retain one (1) copy of\nelectronically stored information or other written materials as required by applicable law and regulation.\n6. Information Provided As Is. Each disclosing party acknowledges that it has attempted in good faith to provide accurate information to\nthe receiving party. Notwithstanding that attempt, the disclosing party makes no representations or warranties, express or implied, to the\nreceiving party regarding, and the receiving party may not rely on, the completeness or accuracy of any information provided to the receiving\nparty.\n7. No License Granted. Nothing in this Agreement is intended to grant any rights to either party or any of its Representatives under any\npatent, copyright, trade secret or other intellectual property right, nor does this Agreement grant either party or any of its Representatives any\nrights in or to the other party’s information, except the limited right to use such information solely for the Permitted Purpose.\n8. No Trading on Inside Information. Company is aware, and will advise its Representatives who are provided any Confidential\nInformation of ZipRealty, of the restrictions imposed by federal securities laws on the purchase or sale of ZipRealty’s securities by any person\nwho has received material non-public information from ZipRealty or its Representatives and on the communication of such information to any\nother person when it is reasonably foreseeable that such other person may purchase or sell ZipRealty’s securities while in possession of such\ninformation.\n9. Public Company Standstill. Unless previously approved by the Board of Directors of the disclosing party, for a period of six months\nfrom the date of this Agreement, each receiving party will not, and will instruct and use its commercially reasonable efforts to cause its\nRepresentatives not to, directly or indirectly:\n(a) inquire about, announce or make any offer or proposal (including, without limitation, any offer or proposal to the stockholders\nof the disclosing party) concerning an Acquisition Transaction (as defined below);\n-2-\n(b) knowingly encourage, solicit or discuss with, or provide any Confidential Information of the disclosing party to, any person or\nentity with respect to any inquiry or announcement regarding or the making of any offer or proposal concerning any Acquisition Transaction;\n(c) otherwise knowingly facilitate or participate in any effort or attempt to make or implement any Acquisition Transaction;\n(d) participate in any “solicitation” of “proxies” to vote (as such terms are used in the rules and regulations of the Securities and\nExchange Commission), or seek to advise or influence any person or entity with respect to the voting of, any securities of the disclosing party;\n(e) otherwise act or seek to control or influence the management, Board of Directors or other policies of the disclosing party; or\n(f) request the disclosing party or any of its Representatives to amend or waive any provisions of this paragraph 9.\nAs used in this paragraph 9, “Acquisition Transaction” means any acquisition or exchange of all or any material portion of the assets of, or 15%\nor more of the equity interest in, the disclosing party or any of its subsidiaries (by purchase on the Nasdaq Stock Market or New York Stock\nExchange, as applicable, direct purchase from the other party, tender or exchange offer or otherwise) or any business combination, merger or\nsimilar transaction (including an exchange of stock or assets) with or involving the disclosing party or any it its subsidiaries.\n10. No Recruitment of Other Party’s Employees. Each party will not, and will instruct and use its commercially reasonable efforts to\ncause its Representatives not to, directly or indirectly, recruit or solicit for hire any of the other party’s employees, or aid anyone else in recruiting\nor soliciting for hire any of the other party’s employees, or induce or otherwise encourage any of the other party’s employees to leave their\nemployment with the other party, provided that general, non-targeted advertisements or solicitations through independent employment recruiters\nwill not be deemed to breach the foregoing provisions of this sentence.\n11. No Conflicting Obligations. Each disclosing party hereby represents and warrants that it may rightfully disclose the Confidential\nInformation to the receiving party, and to enter into the potential business opportunity being explored, in each case without violating any\ncontractual, legal, fiduciary or other obligation to any person.\n12. Entire Agreement. This Agreement sets forth the entire understanding of the parties concerning the matters set forth herein. Except as\nset forth in this Agreement, neither party will be committed in any way concerning the potential business opportunity being explored unless and\nuntil a definitive written agreement with respect thereto is duly authorized and executed by the appropriate officers of both parties.\n13. Governing Law and Jurisdiction. This Agreement will be governed by and construed and enforced in accordance with the internal\nlaws of the State of California without regard to its\n-3-\nconflict-of-laws principles. The federal and state courts within the State of California will have exclusive jurisdiction to adjudicate any dispute\narising out of this Agreement. Each party irrevocably consents to the personal jurisdiction of such courts and expressly waives any objection to\nsuch jurisdiction based on inconvenient forum or otherwise.\n14. Remedies. Each party agrees that its obligations hereunder are necessary and reasonable in order to protect the other party and the other\nparty’s business and expressly agrees that monetary damages may be inadequate to compensate the other party for any breach by either party of\nany covenants and agreements set forth herein. Accordingly, each party agrees and acknowledges that any such violation or threatened violation\nmay cause irreparable injury to the other party and that, in addition to any other remedies that may be available, in law, in equity or otherwise,\nthe other party will be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach,\nwithout the necessity of proving actual damages.\n15. Miscellaneous. This Agreement will be binding upon and for the benefit of the undersigned parties, their successors and assigns.\nFailure to enforce any provision of this Agreement will not constitute a waiver of any term hereof. This Agreement may not be amended except\nby a writing signed by both ZipRealty and Company. Each party may sign any number of identical counterparts of this Agreement with the same\neffect as if the parties signed the same document and all of which shall be considered one and the same agreement. A copy of this Agreement\nsigned by a party and delivered by facsimile (or email) transmission to the other party shall have the same effect as the delivery of an original of\nthis Agreement containing the original signature of such party.\n16. Term. The foregoing commitments in this Agreement will survive any termination of discussions between the parties, and will continue\nfor a period of one (1) year following the date of this Agreement, except to the extent explicitly terminated in writing by both ZipRealty and\nCompany.\nZIPREALTY, INC.\nOSMIUM PARTNERS, LLC\nBy: /s/ Lanny Baker\nBy: /s/ John H. Lewis\nPrint Name: Lanny Baker\nPrint Name: John H. Lewis\nPrint Title: President & CEO\nPrint Title: Managing Partner\n-4-
f3d887ab7d6bdcd947ddff2dd5630745.pdf	effective_date jurisdiction party term	EX-10 .3 6 confidentiality.htm CONFIDENTIALITY AGMT\nCONFIDENTIALITY, NON-COMPETE AND NON-SOLICITATION AGREEMENT\nTHIS CONFIDENTIALITY, NON-COMPETE AND NON-SOLICITATION AGREEMENT (the “Agreement”), made as of February 9, 2015 (the\n“Effective Date”), by and between root9B Technologies, Inc., a Delaware corporation (“root9B”) and Dan Wachtler (“Wachtler”).\nWHEREAS, Wachtler was, prior to the date hereof, the President and CEO of IPSA International, Inc. a Nevada corporation (“IPSA”) that is, on the\ndate hereof, being merged with and into IPSA International Services, Inc. a Delaware corporation (“Merger Sub”), a wholly owned subsidiary of\nroot9B (the “Merger”), pursuant to that certain Merger Agreement dated February 6, 2015 by and among root9B, Merger Sub and IPSA (the\n“Merger Agreement”); and\nWHEREAS, as a condition of the Merger, Wachtler has agreed to enter into and comply with this Agreement, without which root9B would not\notherwise proceed.\nNOW THEREFORE, it is agreed by and between the parties hereto as follows:\n1.\nDefinitions.\n“Base Salary” has the meaning ascribed thereto in the Wachtler Employment Agreement.\n“Confidential Information” refers to information treated by IPSA and Merger Sub as confidential and proprietary that is not known by others and\ngives IPSA and Merger Sub a competitive advantage over other companies that do not have access to such information, whether conveyed orally or\nreduced to a tangible form in any medium, including information concerning the trade secrets, data, know-how, processes, techniques, operations,\nfuture plans, customers, business models, strategies, business methods and other proprietary information, as well as information about the\nemployees, customers, clients, investors and business partners of IPSA and Merger Sub. “Confidential Information” does not and will not include\ninformation that (a) is or becomes publicly available other than as a result of a disclosure by Wachtler or his representatives, (b) is or becomes\navailable to Wachtler on a non-confidential basis from a source which is not prohibited from disclosing such information under a legal, contractual\nor fiduciary obligation to IPSA and/or Merger Sub, (c) is approved for release by written authorization of root9B or Merger Sub, (d) is disclosed to\none or more third parties by root9B or Merger Sub without restriction, or (e) is independently developed by Wachtler without reference to or use of\nany Confidential Information.\n“Customer” means a specific department or division (whichever is smaller) of an entity or governmental agency to which IPSA provided services\nprior to the date hereof and to which Merger Sub provides services prior to the Termination Date.\n“Wachtler Employment Agreement” means an employment agreement of even date herewith between Merger Sub and Wachtler.\n2.\nAcknowledgments. Wachtler acknowledges that:\n(i)\nas a result of Wachtler’s employment by and ownership of IPSA, Wachtler has obtained Confidential Information of IPSA and Merger Sub,\nwhich Confidential Information has been developed and created by IPSA, at substantial expense and constitutes valuable proprietary assets of\nroot9B and Merger Sub;\n(ii)\nroot9B and Merger Sub will suffer substantial damage and irreparable harm which will be difficult to quantify if Wachtler breaches or\nthreatens to breach the terms of this Agreement;\n(iii)\nthe provisions of this Agreement are reasonable and necessary for the protection of root9B’s interest in Merger Sub; and\n(iv)\nthe provisions of this Agreement will not preclude Wachtler from other gainful employment.\n3.\nConfidentiality. Wachtler covenants and agrees not to disclose or use the Confidential Information for any purpose whatsoever\nother than appropriate use and disclosure in connection with his employment by Merger Sub or any successor thereto and his service as a root9B\nBoard of Directors observer and/or member.\n4.\nNon-Competition. Except as otherwise expressly provided herein, from the Effective Date until the date on which, inter alia, this\nSection 4 terminates as provided in the Employment Agreement, Wachtler will not directly or indirectly own, operate, manage, join, control,\nfinance or participate in the ownership, management, operation, control or financing of, or be connected as an officer, director, employee, partner,\nmanager, member, principal, agent, representative, consultant or employee, or otherwise, with, any firm, corporation, or other business, organization\nor person engaged in a business which is substantially similar to or in competition with any of the businesses carried on by Merger Sub, whether in\nthe United States or abroad. Nothing herein shall prohibit Wachtler (i) from purchasing or owning less than three percent (3%) of the publicly\ntraded securities of any corporation, provided that such ownership represents a passive investment and that Wachtler is not a controlling person of,\nor a member of\na group that controls, such corporation or (ii) owning, operating, managing, controlling or financing IPSA Security Services, LLC.\n5.\nNon-Solicitation. From the Effective Date until the date on which, inter alia, this Section 5 terminates as provided in the\nEmployment Agreement, Wachtler will not (i) solicit or attempt to solicit (or assist others to solicit) any Customer, that IPSA or Merger Sub, within\nthe one (1) year period preceding the date of such activity, provided services to; (ii) solicit or attempt to solicit (or assist others to solicit) any person\nwho, within the one (1) year period preceding the date of such activity, was an employee of root9B or its subsidiaries.\n6.\nBlue Pencil.\nIf, at any time, the provisions of this Agreement shall be determined to be invalid or unenforceable\nunder any applicable law, the court shall interpret them to extend only over the maximum period of time for which they may be enforceable and/or\nthe maximum geographical area as to which they may be enforceable and/or to the maximum extent in all other respects as to which they may be\nenforceable. All other provisions of this Agreement shall remain in full force and effect and shall be enforced as written.\n7.\nEnforcement.\nWachtler acknowledges and agrees that: (i) the purposes of the foregoing covenants are to protect\nroot9B and Merger Sub, and to prevent Wachtler from interfering with the business of root9B and Merger Sub, (ii) because of the nature of the\nbusiness in which root9B and Merger Sub are engaged and because of the nature of the work product and Confidential Information to which he has\naccess, it would be impractical and excessively difficult to determine the actual damages to root9B and Merger Sub in the event he materially\nbreached any of the covenants of this Agreement; and (iii) remedies at law (such as monetary damages) for any material breach of his obligations\nunder this Agreement would be inadequate. Wachtler therefore agrees and consents that if he commits any such breach of a covenant under this\nAgreement or threatens to commit any such breach, root9B and its affiliates shall have the right (in addition to, and not in lieu of, any other right or\nremedy that may be available to each of them) to temporary and permanent injunctive relief from a court of competent jurisdiction, without posting\nany bond or other security and without the necessity of proof of actual damage.\n8.\nMiscellaneous.\na.\nEntire Agreement, Amendment. All oral or written agreements or representations, express or implied, with respect to the subject matter of\nthis Agreement are set forth in this Agreement and the Wachtler Employment Agreement. No provisions of this Agreement may be modified,\nwaived, or discharged except by a written document signed by a duly authorized officer of root9B and Wachtler. A waiver of any conditions or\nprovisions of this Agreement in a given instance shall not be deemed a waiver of such conditions or provisions at any other time in the future.\nb.\nChoice of Law. The validity, interpretation, construction, and performance of this Agreement shall be governed by the laws of the State of\nDelaware, except that conflicts of laws provisions shall not be applicable. The parties agree that exclusive jurisdiction shall be in the federal and\nstate courts sitting in the County of New Castle, State of Delaware and the parties consent to the jurisdiction of those courts.\nc.\nAttorneys’ Fees. In any action taken relating to the enforcement of this Agreement, the prevailing party shall be entitled to recover from the\nnon-prevailing party its reasonable attorneys’ fees, court costs and other expenses incurred in connection with such action.\nd.\nAssignment. root9B may assign this Agreement to any subsidiary of root9B and to any successor to substantially all the business and\nassets of root9B or Merger Sub. Wachtler shall not assign this Agreement.\ne.\nCounterparts. This Agreement may be executed in one or more counterparts, including copies signed and delivered via electronic media,\neach of which shall be deemed to be an original but all of which together shall constitute the same instrument.\n[signatures on following page]\nIN WITNESS WHEREOF, the parties have signed this Agreement as of the Effective Date.\nroot9B Technologies, Inc.\nBy: /s/ Brian King\nBrian King, COO\n/s/ Dan Wachtler\nDan Wachtler, Individually	EX-10.3 6 confidentiality.htm CONFIDENTIALITY AGMT\nCONFIDENTIALITY, NON-COMPETE AND NON-SOLICITATION AGREEMENT\nTHIS CONFIDENTIALITY, NON-COMPETE AND NON-SOLICITATION AGREEMENT (the “Agreement”), made as of February 9, 2015 (the\n“Effective Date”), by and between root9B Technologies, Inc., a Delaware corporation (“root9B”) and Dan Wachtler (“Wachtler”).\nWHEREAS, Wachtler was, prior to the date hereof, the President and CEO of IPSA International, Inc. a Nevada corporation (“IPSA”) that is, on the\ndate hereof, being merged with and into IPSA International Services, Inc. a Delaware corporation (“Merger Sub”), a wholly owned subsidiary of\nroot9B (the “Merger”), pursuant to that certain Merger Agreement dated February 6, 2015 by and among root9B, Merger Sub and IPSA (the\n“Merger Agreement”); and\nWHEREAS, as a condition of the Merger, Wachtler has agreed to enter into and comply with this Agreement, without which root9B would not\notherwise proceed.\nNOW THEREFORE, it is agreed by and between the parties hereto as follows:\n1. Definitions.\n“Base Salary” has the meaning ascribed thereto in the Wachtler Employment Agreement.\n“Confidential Information” refers to information treated by IPSA and Merger Sub as confidential and proprietary that is not known by others and\ngives IPSA and Merger Sub a competitive advantage over other companies that do not have access to such information, whether conveyed orally or\nreduced to a tangible form in any medium, including information concerning the trade secrets, data, know-how, processes, techniques, operations,\nfuture plans, customers, business models, strategies, business methods and other proprietary information, as well as information about the\nemployees, customers, clients, investors and business partners of IPSA and Merger Sub. “Confidential Information” does not and will not include\ninformation that (a) is or becomes publicly available other than as a result of a disclosure by Wachtler or his representatives, (b) is or becomes\navailable to Wachtler on a non-confidential basis from a source which is not prohibited from disclosing such information under a legal, contractual\nor fiduciary obligation to IPSA and/or Merger Sub, (c) is approved for release by written authorization of root9B or Merger Sub, (d) is disclosed to\none or more third parties by root9B or Merger Sub without restriction, or (e) is independently developed by Wachtler without reference to or use of\nany Confidential Information.\n“Customer” means a specific department or division (whichever is smaller) of an entity or governmental agency to which IPSA provided services\nprior to the date hereof and to which Merger Sub provides services prior to the Termination Date.\n“Wachtler Employment Agreement” means an employment agreement of even date herewith between Merger Sub and Wachtler.\n2. Acknowledgments. Wachtler acknowledges that:\ni) as a result of Wachtler’s employment by and ownership of IPSA, Wachtler has obtained Confidential Information of IPSA and Merger Sub,\nwhich Confidential Information has been developed and created by IPSA, at substantial expense and constitutes valuable proprietary assets of\nroot9B and Merger Sub;\n(ii) root9B and Merger Sub will suffer substantial damage and irreparable harm which will be difficult to quantify if Wachtler breaches or\nthreatens to breach the terms of this Agreement;\n(iii) the provisions of this Agreement are reasonable and necessary for the protection of root9B’s interest in Merger Sub; and\n(iv) the provisions of this Agreement will not preclude Wachtler from other gainful employment.\n3. Confidentiality. Wachtler covenants and agrees not to disclose or use the Confidential Information for any purpose whatsoever\nother than appropriate use and disclosure in connection with his employment by Merger Sub or any successor thereto and his service as a root9B\nBoard of Directors observer and/or member.\n4. Non-Competition. Except as otherwise expressly provided herein, from the Effective Date until the date on which, inter alia, this\nSection 4 terminates as provided in the Employment Agreement, Wachtler will not directly or indirectly own, operate, manage, join, control,\nfinance or participate in the ownership, management, operation, control or financing of, or be connected as an officer, director, employee, partner,\nmanager, member, principal, agent, representative, consultant or employee, or otherwise, with, any firm, corporation, or other business, organization\nor person engaged in a business which is substantially similar to or in competition with any of the businesses carried on by Merger Sub, whether in\nthe United States or abroad. Nothing herein shall prohibit Wachtler (i) from purchasing or owning less than three percent (3%) of the publicly\ntraded securities of any corporation, provided that such ownership represents a passive investment and that Wachtler is not a controlling person of,\nor a member of\na group that controls, such corporation or (ii) owning, operating, managing, controlling or financing IPSA Security Services, LLC.\n5. Non-Solicitation. From the Effective Date until the date on which, inter alia, this Section 5 terminates as provided in the\nEmployment Agreement, Wachtler will not (i) solicit or attempt to solicit (or assist others to solicit) any Customer, that IPSA or Merger Sub, within\nthe one (1) year period preceding the date of such activity, provided services to; (ii) solicit or attempt to solicit (or assist others to solicit) any person\nwho, within the one (1) year period preceding the date of such activity, was an employee of root9B or its subsidiaries.\n6. Blue Pencil. If, at any time, the provisions of this Agreement shall be determined to be invalid or unenforceable\nunder any applicable law, the court shall interpret them to extend only over the maximum period of time for which they may be enforceable and/or\nthe maximum geographical area as to which they may be enforceable and/or to the maximum extent in all other respects as to which they may be\nenforceable. All other provisions of this Agreement shall remain in full force and effect and shall be enforced as written.\n7. Enforcement. Wachtler acknowledges and agrees that: (i) the purposes of the foregoing covenants are to protect\nroot9B and Merger Sub, and to prevent Wachtler from interfering with the business of root9B and Merger Sub, (ii) because of the nature of the\nbusiness in which root9B and Merger Sub are engaged and because of the nature of the work product and Confidential Information to which he has\naccess, it would be impractical and excessively difficult to determine the actual damages to root9B and Merger Sub in the event he materially\nbreached any of the covenants of this Agreement; and (iii) remedies at law (such as monetary damages) for any material breach of his obligations\nunder this Agreement would be inadequate. Wachtler therefore agrees and consents that if he commits any such breach of a covenant under this\nAgreement or threatens to commit any such breach, root9B and its affiliates shall have the right (in addition to, and not in lieu of, any other right or\nremedy that may be available to each of them) to temporary and permanent injunctive relief from a court of competent jurisdiction, without posting\nany bond or other security and without the necessity of proof of actual damage.\n8. Miscellaneous.\na. Entire Agreement, Amendment. All oral or written agreements or representations, express or implied, with respect to the subject matter of\nthis Agreement are set forth in this Agreement and the Wachtler Employment Agreement. No provisions of this Agreement may be modified,\nwaived, or discharged except by a written document signed by a duly authorized officer of root9B and Wachtler. A waiver of any conditions or\nprovisions of this Agreement in a given instance shall not be deemed a waiver of such conditions or provisions at any other time in the future.\nb. Choice of Law. The validity, interpretation, construction, and performance of this Agreement shall be governed by the laws of the State of\nDelaware, except that conflicts of laws provisions shall not be applicable. The parties agree that exclusive jurisdiction shall be in the federal and\nstate courts sitting in the County of New Castle, State of Delaware and the parties consent to the jurisdiction of those courts.\nC. Attorneys’ Fees. In any action taken relating to the enforcement of this Agreement, the prevailing party shall be entitled to recover from the\nnon-prevailing party its reasonable attorneys’ fees, court costs and other expenses incurred in connection with such action.\n \nd. Assignment. root9B may assign this Agreement to any subsidiary of root9B and to any successor to substantially all the business and\nassets of root9B or Merger Sub. Wachtler shall not assign this Agreement.\ne. Counterparts. This Agreement may be executed in one or more counterparts, including copies signed and delivered via electronic media,\neach of which shall be deemed to be an original but all of which together shall constitute the same instrument.\n[signatures on following page]\nIN WITNESS WHEREOF, the parties have signed this Agreement as of the Effective Date.\nroot9B Technologies, Inc.\nBy: /s/ Brian King\nBrian King, COO\n/s/ Dan Wachtler\nDan Wachtler, Individually	EX-10.3 6 confidentiality.htm CONFIDENTIALITY AGMT\nCONFIDENTIALITY, NON-COMPETE AND NON-SOLICITATION AGREEMENT\nTHIS CONFIDENTIALITY, NON-COMPETE AND NON-SOLICITATION AGREEMENT (the "Agreement"), made as of February 9, 2015 (the\n"Effective Date"), by and between root9B Technologies, Inc., a Delaware corporation ("rOot9B") and Dan Wachtler ("Wachtler").\nWHEREAS, Wachtler was, prior to the date hereof, the President and CEO of IPSA International, Inc. a Nevada corporation ("IPSA") that is, on the\ndate hereof, being merged with and into IPSA International Services, Inc. a Delaware corporation ("Merger Sub"), a wholly owned subsidiary of\nroot9B\n(the\n"Merger"), pursuant to that certain Merger Agreement dated February 6, 2015 by and among root9B, Merger Sub and IPSA\n(the\n"Merger Agreement"); and\nWHEREAS, as a condition of the Merger, Wachtler has agreed to enter into and comply with this Agreement, without which root9B would not\notherwise proceed.\nNOW THEREFORE, it is agreed by and between the parties hereto as follows:\n1.\nDefinitions.\n"Base Salary" has the meaning ascribed thereto in the Wachtler Employment Agreement.\n"Confidential Information" refers to information treated by IPSA and Merger Sub as confidential and proprietary that is not known by others and\ngives IPSA and Merger Sub a competitive advantage over other companies that do not have access to such information, whether conveyed orally or\nreduced to a tangible form in any medium, including information concerning the trade secrets, data, know-how, processes, techniques, operations,\nfuture plans, customers, business models, strategies, business methods and other proprietary information, as well as information about the\nemployees, customers, clients, investors and business partners of IPSA and Merger Sub. "Confidential Information" does not and will not include\ninformation that (a) is or becomes publicly available other than as a result of a disclosure by Wachtler or his representatives, (b) is or becomes\navailable to Wachtler on a non-confidential basis from a source which is not prohibited from disclosing such information under a legal, contractual\nor\nfiduciary obligation to IPSA and/or Merger Sub, (c) is approved for release by written authorization of root9B or Merger Sub, (d) is disclosed to\none or more third parties by root9B or Merger Sub without restriction, or (e) is independently developed by Wachtler without reference to or use\nof\nany Confidential Information.\n"Customer" means a specific department or division (whichever is smaller) of an entity or governmental agency to which IPSA provided services\nprior to the date hereof and to which Merger Sub provides services prior to the Termination Date.\n"Wachtler Employment Agreement" means an employment agreement of even date herewith between Merger Sub and Wachtler.\n2.\nAcknowledgments. Wachtler acknowledges that:\n(i)\nas a result of Wachtler's employment by and ownership of IPSA, Wachtler has obtained Confidential Information of IPSA and Merger Sub,\nwhich Confidential Information has been developed and created by IPSA, at substantial expense and constitutes valuable proprietary assets of\nroot9B and Merger Sub;\n(ii)\nroot9B and Merger Sub will suffer substantial damage and irreparable harm which will be difficult to quantify if Wachtler breaches or\nthreatens to breach the terms of this Agreement;\n(iii)\nthe provisions of this Agreement are reasonable and necessary for the protection of root9B's interest in Merger Sub; and\n(iv)\nthe provisions of this Agreement will not preclude Wachtler from other gainful employment.\n3.\nConfidentiality.. Wachtler covenants and agrees not to disclose or use the Confidential Information for any purpose whatsoever\nother than appropriate use and disclosure in connection with his employment by Merger Sub or any successor thereto and his service as a root9B\nBoard of Directors observer and/or member.\n4.\nNon-Competition. Except as otherwise expressly provided herein, from the Effective Date until the date on which, inter alia, this\nSection 4 terminates as provided in the Employment Agreement, Wachtler will not directly or indirectly own, operate, manage, join, control,\nfinance or participate in the ownership, management, operation, control or financing of, or be connected as an officer, director, employee, partner,\nmanager, member, principal, agent, representative, consultant or employee, or otherwise, with, any firm, corporation, or other business, organization\nor person engaged in a business which is substantially similar to or in competition with any of the businesses carried on by Merger Sub, whether in\nthe United States or abroad. Nothing herein shall prohibit Wachtler (i) from purchasing or owning less than three percent (3%) of the publicly\ntraded securities of any corporation, provided that such ownership represents a passive investment and that Wachtler is not a controlling person of,\nor a member of\na\ngroup that controls, such corporation or (ii) owning, operating, managing, controlling or financing IPSA Security Services, LLC.\n5.\nNon-Solicitation. From the Effective Date until the date on which, inter alia, this Section 5 terminates as provided in the\nEmployment Agreement, Wachtler will not (i) solicit or attempt to solicit (or assist others to solicit) any Customer, that IPSA or Merger Sub, within\nthe one (1) year period preceding the date of such activity, provided services to; (ii) solicit or attempt to solicit (or assist others to solicit) any person\nwho, within the one (1) year period preceding the date of such activity, was an employee of root9B or its subsidiaries.\n6.\nBlue Pencil.\nIf, at any time, the provisions of this Agreement shall be determined to be invalid or unenforceable\nunder any applicable law, the court shall interpret them to extend only over the maximum period of time for which they may be enforceable and/or\nthe maximum geographical area as to which they may be enforceable and/or to the maximum extent in all other respects as to which they may be\nenforceable. All other provisions of this Agreement shall remain in full force and effect and shall be enforced as written.\n7.\nEnforcement.\nWachtler acknowledges and agrees that: (i) the purposes of the foregoing covenants are to\nprotect\nroot9B and Merger Sub, and to prevent Wachtler from interfering with the business of root9B and Merger Sub, (ii) because of the nature of\nthe\nbusiness in which root9B and Merger Sub are engaged and because of the nature of the work product and Confidential Information to which he\nhas\naccess, it would be impractical and excessively difficult to determine the actual damages to root9B and Merger Sub in the event he materially\nbreached\nany\nof the covenants of this Agreement; and (iii) remedies at law (such as monetary damages) for any material breach of his obligations\nunder this Agreement would be inadequate. Wachtler therefore agrees and consents that if he commits any such breach of a covenant under this\nAgreement or threatens to commit any such breach, root9B and its affiliates shall have the right (in addition to, and not in lieu of, any other right or\nremedy that may be available to each of them) to temporary and permanent injunctive relief from a court of competent jurisdiction, without posting\nany bond or other security and without the necessity of proof of actual damage.\n8.\nMiscellaneous.\na.\nEntire Agreement, Amendment. All oral or written agreements or representations, express or implied, with respect to the subject matter\nof\nthis\nAgreement\nare\nset\nforth\nin\nthis\nAgreement\nand\nthe\nWachtler\nEmployment\nAgreement.\nNo\nprovisions\nof\nthis\nAgreement\nmay\nbe\nmodified,\nwaived, or discharged except by a written document signed by a duly authorized officer of root9B and Wachtler. A waiver of any conditions or\nprovisions of this Agreement in a given instance shall not be deemed a waiver of such conditions or provisions at any other time in the future.\nb.\nChoice of Law. The validity, interpretation, construction, and performance of this Agreement shall be governed by the laws of the State of\nDelaware, except that conflicts of laws provisions shall not be applicable. The parties agree that exclusive jurisdiction shall be in the federal and\nstate courts sitting in the County of New Castle, State of Delaware and the parties consent to the jurisdiction of those courts.\nc.\nAttorneys' Fees. In any action taken relating to the enforcement of this Agreement, the prevailing party shall be entitled to recover from the\nnon-prevailing party its reasonable attorneys' fees, court costs and other expenses incurred in connection with such action.\nd.\nAssignment. root9B may assign this Agreement to any subsidiary of root9B and to any successor to substantially all the business and\nassets of root9B or Merger Sub. Wachtler shall not assign this Agreement.\ne.\nCounterparts. This Agreement may be executed in one or more counterparts, including copies signed and delivered via electronic media,\neach of which shall be deemed to be an original but all of which together shall constitute the same instrument.\n[signatures on following page]\nIN WITNESS WHEREOF, the parties have signed this Agreement as of the Effective Date.\nroot9B Technologies, Inc.\nBy: /s/ Brian King\nBrian King, COO\n/s/ Dan Wachtler\nDan Wachtler, Individually	EX-10 .3 6 confidentiality.htm CONFIDENTIALITY AGMT\nCONFIDENTIALITY, NON-COMPETE AND NON-SOLICITATION AGREEMENT\nTHIS CONFIDENTIALITY, NON-COMPETE AND NON-SOLICITATION AGREEMENT (the “Agreement”), made as of February 9, 2015 (the\n“Effective Date”), by and between root9B Technologies, Inc., a Delaware corporation (“root9B”) and Dan Wachtler (“Wachtler”).\nWHEREAS, Wachtler was, prior to the date hereof, the President and CEO of IPSA International, Inc. a Nevada corporation (“IPSA”) that is, on the\ndate hereof, being merged with and into IPSA International Services, Inc. a Delaware corporation (“Merger Sub”), a wholly owned subsidiary of\nroot9B (the “Merger”), pursuant to that certain Merger Agreement dated February 6, 2015 by and among root9B, Merger Sub and IPSA (the\n“Merger Agreement”); and\nWHEREAS, as a condition of the Merger, Wachtler has agreed to enter into and comply with this Agreement, without which root9B would not\notherwise proceed.\nNOW THEREFORE, it is agreed by and between the parties hereto as follows:\n1.\nDefinitions.\n“Base Salary” has the meaning ascribed thereto in the Wachtler Employment Agreement.\n“Confidential Information” refers to information treated by IPSA and Merger Sub as confidential and proprietary that is not known by others and\ngives IPSA and Merger Sub a competitive advantage over other companies that do not have access to such information, whether conveyed orally or\nreduced to a tangible form in any medium, including information concerning the trade secrets, data, know-how, processes, techniques, operations,\nfuture plans, customers, business models, strategies, business methods and other proprietary information, as well as information about the\nemployees, customers, clients, investors and business partners of IPSA and Merger Sub. “Confidential Information” does not and will not include\ninformation that (a) is or becomes publicly available other than as a result of a disclosure by Wachtler or his representatives, (b) is or becomes\navailable to Wachtler on a non-confidential basis from a source which is not prohibited from disclosing such information under a legal, contractual\nor fiduciary obligation to IPSA and/or Merger Sub, (c) is approved for release by written authorization of root9B or Merger Sub, (d) is disclosed to\none or more third parties by root9B or Merger Sub without restriction, or (e) is independently developed by Wachtler without reference to or use of\nany Confidential Information.\n“Customer” means a specific department or division (whichever is smaller) of an entity or governmental agency to which IPSA provided services\nprior to the date hereof and to which Merger Sub provides services prior to the Termination Date.\n“Wachtler Employment Agreement” means an employment agreement of even date herewith between Merger Sub and Wachtler.\n2.\nAcknowledgments. Wachtler acknowledges that:\n(i)\nas a result of Wachtler’s employment by and ownership of IPSA, Wachtler has obtained Confidential Information of IPSA and Merger Sub,\nwhich Confidential Information has been developed and created by IPSA, at substantial expense and constitutes valuable proprietary assets of\nroot9B and Merger Sub;\n(ii)\nroot9B and Merger Sub will suffer substantial damage and irreparable harm which will be difficult to quantify if Wachtler breaches or\nthreatens to breach the terms of this Agreement;\n(iii)\nthe provisions of this Agreement are reasonable and necessary for the protection of root9B’s interest in Merger Sub; and\n(iv)\nthe provisions of this Agreement will not preclude Wachtler from other gainful employment.\n3.\nConfidentiality. Wachtler covenants and agrees not to disclose or use the Confidential Information for any purpose whatsoever\nother than appropriate use and disclosure in connection with his employment by Merger Sub or any successor thereto and his service as a root9B\nBoard of Directors observer and/or member.\n4.\nNon-Competition. Except as otherwise expressly provided herein, from the Effective Date until the date on which, inter alia, this\nSection 4 terminates as provided in the Employment Agreement, Wachtler will not directly or indirectly own, operate, manage, join, control,\nfinance or participate in the ownership, management, operation, control or financing of, or be connected as an officer, director, employee, partner,\nmanager, member, principal, agent, representative, consultant or employee, or otherwise, with, any firm, corporation, or other business, organization\nor person engaged in a business which is substantially similar to or in competition with any of the businesses carried on by Merger Sub, whether in\nthe United States or abroad. Nothing herein shall prohibit Wachtler (i) from purchasing or owning less than three percent (3%) of the publicly\ntraded securities of any corporation, provided that such ownership represents a passive investment and that Wachtler is not a controlling person of,\nor a member of\na group that controls, such corporation or (ii) owning, operating, managing, controlling or financing IPSA Security Services, LLC.\n5.\nNon-Solicitation. From the Effective Date until the date on which, inter alia, this Section 5 terminates as provided in the\nEmployment Agreement, Wachtler will not (i) solicit or attempt to solicit (or assist others to solicit) any Customer, that IPSA or Merger Sub, within\nthe one (1) year period preceding the date of such activity, provided services to; (ii) solicit or attempt to solicit (or assist others to solicit) any person\nwho, within the one (1) year period preceding the date of such activity, was an employee of root9B or its subsidiaries.\n6.\nBlue Pencil.\nIf, at any time, the provisions of this Agreement shall be determined to be invalid or unenforceable\nunder any applicable law, the court shall interpret them to extend only over the maximum period of time for which they may be enforceable and/or\nthe maximum geographical area as to which they may be enforceable and/or to the maximum extent in all other respects as to which they may be\nenforceable. All other provisions of this Agreement shall remain in full force and effect and shall be enforced as written.\n7.\nEnforcement.\nWachtler acknowledges and agrees that: (i) the purposes of the foregoing covenants are to protect\nroot9B and Merger Sub, and to prevent Wachtler from interfering with the business of root9B and Merger Sub, (ii) because of the nature of the\nbusiness in which root9B and Merger Sub are engaged and because of the nature of the work product and Confidential Information to which he has\naccess, it would be impractical and excessively difficult to determine the actual damages to root9B and Merger Sub in the event he materially\nbreached any of the covenants of this Agreement; and (iii) remedies at law (such as monetary damages) for any material breach of his obligations\nunder this Agreement would be inadequate. Wachtler therefore agrees and consents that if he commits any such breach of a covenant under this\nAgreement or threatens to commit any such breach, root9B and its affiliates shall have the right (in addition to, and not in lieu of, any other right or\nremedy that may be available to each of them) to temporary and permanent injunctive relief from a court of competent jurisdiction, without posting\nany bond or other security and without the necessity of proof of actual damage.\n8.\nMiscellaneous.\na.\nEntire Agreement, Amendment. All oral or written agreements or representations, express or implied, with respect to the subject matter of\nthis Agreement are set forth in this Agreement and the Wachtler Employment Agreement. No provisions of this Agreement may be modified,\nwaived, or discharged except by a written document signed by a duly authorized officer of root9B and Wachtler. A waiver of any conditions or\nprovisions of this Agreement in a given instance shall not be deemed a waiver of such conditions or provisions at any other time in the future.\nb.\nChoice of Law. The validity, interpretation, construction, and performance of this Agreement shall be governed by the laws of the State of\nDelaware, except that conflicts of laws provisions shall not be applicable. The parties agree that exclusive jurisdiction shall be in the federal and\nstate courts sitting in the County of New Castle, State of Delaware and the parties consent to the jurisdiction of those courts.\nc.\nAttorneys’ Fees. In any action taken relating to the enforcement of this Agreement, the prevailing party shall be entitled to recover from the\nnon-prevailing party its reasonable attorneys’ fees, court costs and other expenses incurred in connection with such action.\nd.\nAssignment. root9B may assign this Agreement to any subsidiary of root9B and to any successor to substantially all the business and\nassets of root9B or Merger Sub. Wachtler shall not assign this Agreement.\ne.\nCounterparts. This Agreement may be executed in one or more counterparts, including copies signed and delivered via electronic media,\neach of which shall be deemed to be an original but all of which together shall constitute the same instrument.\n[signatures on following page]\nIN WITNESS WHEREOF, the parties have signed this Agreement as of the Effective Date.\nroot9B Technologies, Inc.\nBy: /s/ Brian King\nBrian King, COO\n/s/ Dan Wachtler\nDan Wachtler, Individually
f4021409512fd2f95a9a8cf7af8f5b9b.pdf	effective_date jurisdiction party term	EX-10 .2 3 ex102elcagreement.htm EXHIBIT 10.2\nExhibit 10.2\nARAMARK AGREEMENT RELATING TO EMPLOYMENT AND\nPOST-EMPLOYMENT COMPETITION\nThis Agreement is between the undersigned individual (“Employee”) and Aramark.\nRECITALS\nWHEREAS, Aramark is a leading provider of managed services to business and industry, private and public\ninstitutions, and the general public, in the following business groups: food and support services and uniform and career\napparel;\nWHEREAS, Aramark has a proprietary interest in its business and financial plans and systems, methods of\noperation and other secret and confidential information, knowledge and data (“Proprietary Information”) which includes,\nbut is not limited to, all confidential, proprietary or non-public information, ideas and concepts; annual and strategic\nbusiness plans; financial plans, reports and systems including, profit and loss statements, sales, accounting forms and\nprocedures and other information regarding costs, pricing and the financial condition of Aramark and its business\nsegments and groups; management development reviews, including information regarding the capabilities and\nexperience of Aramark employees; intellectual property, including patents, inventions, discoveries, research and\ndevelopment, compounds, recipes, formulae, reports, protocols, computer software and databases; information regarding\nAramark’s relationships with its clients, customers, and suppliers and prospective clients, partners, customers and\nsuppliers; policy and procedure manuals, information regarding materials and documents in any form or medium\n(including oral, written, tangible, intangible, or electronic) concerning any of the above, or any past, current or future\nbusiness activities of Aramark that is not publicly available; compensation, recruiting and training, and human resource\npolicies and procedures; and data compilations, research, reports, structures, compounds, techniques, methods,\nprocesses, and know-how;\nWHEREAS, all such Proprietary Information is developed at great expense to Aramark and is considered by\nAramark to be confidential trade secrets;\nWHEREAS, Employee, as a senior manager, will have access to Aramark’s Proprietary Information, directly in\nthe course of Employee’s employment, and indirectly through interaction with and presentations by other Aramark\nsenior managers at the Executive Leadership Institute, Executive Leadership Council meetings, Presidents’ Council\nmeetings and the like;\nWHEREAS, Aramark will introduce Employee to Aramark clients, customers, suppliers and others, and will\nencourage, and provide resources for, Employee to develop professional relationships with Aramark’s clients, customers,\nsuppliers and others;\nWHEREAS, Aramark will provide specialized training and skills to Employee in connection with the\nperformance of Employee’s duties at Aramark which training involves the disclosure by Aramark to Employee of\nProprietary Information;\nWHEREAS, Aramark will be vulnerable to unfair post-employment competition by Employee because\nEmployee will have access to and knowledge of Aramark’s Proprietary Information, will have a personal relationship\nwith Aramark’s clients, customers, suppliers and others, and will generate good will which Employee acknowledges\nbelongs to Aramark;\nNOW, THEREFORE, in consideration of Employee’s employment with Aramark, the opportunity to receive the\ngrant of options to purchase common stock of Aramark, severance and other post-employment benefits provided for\nherein (including pursuant to Exhibit B hereto to which Employee acknowledges Employee is not otherwise entitled),\nand for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Employee\nagrees to enter into this Agreement with Aramark as a condition of employment pursuant to which Aramark will limit\nEmployee’s right to compete against Aramark during and following termination of employment on the terms set forth in\nthis Agreement. Intending to be legally bound, the parties agree as follows:\nARTICLE 1\nNON-DISCLOSURE AND NON-DISPARAGEMENT\nEmployee shall not, during or after termination of employment, directly or indirectly, in any manner utilize or\ndisclose to any person, firm, corporation, association or other entity, except where required by law, any Proprietary\nInformation which is not generally known to the public, or has not otherwise been disclosed or recognized as standard\npractice in the industries in which Aramark is engaged. Employee shall, during and after termination of employment,\nrefrain from making any statements or comments of a defamatory or disparaging nature to any third party regarding\nAramark, or any of Aramark’s officers, directors, personnel, policies or products, other than to comply with law.\nARTICLE 2\nNON-COMPETITION\nA. Subject to Article 2. B . below, Employee, during Employee’s period of employment with Aramark, and for a\nperiod of two years following the voluntary or involuntary termination of employment, shall not, without Aramark’s\nwritten permission, which shall be granted or denied in Aramark’s sole discretion, directly or indirectly, associate with\n(including, but not limited to, association as a sole proprietor, owner, employer, partner, principal, investor, joint\nventurer, shareholder, associate, employee, member, consultant, contractor or otherwise), or acquire or maintain\nownership interest in, any Business which is competitive with that conducted by or developed for later implementation\nby Aramark at any time during the term of Employee’s employment, provided, however, if Employee’s employment is\ninvoluntarily terminated by Aramark for any reason other than Cause (as defined herein), or (ii) terminated by Employee\nfor Good Reason (as defined in Exhibit B) at any time following a Change of Control (as defined in Exhibit B) occurring\nafter the date of this Agreement, then the term of the non-competition provision set forth herein will be modified to be\neighteen months following such termination of employment. For purposes of this Agreement, “Business” shall be\ndefined as a person, corporation, firm, LLC, partnership, joint venture or other entity. Nothing in the foregoing shall\n2\nprevent Employee from investing in a Business that is or becomes publicly traded, if Employee’s ownership is as a\npassive investor of less than 1% of the outstanding publicly traded stock of the Business.\nB. The provision set forth in Article 2.A above, shall apply to the full extent permitted by law (i) in all fifty\nstates, and (ii) each foreign country, possession or territory in which Aramark may be engaged in, or have plans to\nengage in, business (x) during Employee’s period of employment, or (y) in the case of a termination of employment, as\nof the effective date of such termination or at any time during the twenty-four month period prior thereto.\nC. Employee acknowledges that these restrictions are reasonable and necessary to protect the business interests\nof Aramark, and that enforcement of the provisions set forth in this Article 2 will not unnecessarily or unreasonably\nimpair Employee’s ability to obtain other employment following the termination (voluntary or involuntary) of\nEmployee’s employment with Aramark. Further, Employee acknowledges that the provisions set forth in this Article 2\nshall apply if Employee’s employment is involuntarily terminated by Aramark for Cause; as a result of the elimination of\nemployee’s position; for performance-related issues; or for any other reason or no reason at all.\nARTICLE 3\nNON-SOLICITATION\nDuring the period of Employee’s employment with Aramark and for a period of two years following the\ntermination of Employee’s employment, regardless of the reason for termination, Employee shall not, directly or\nindirectly: (i) induce or encourage any employee of Aramark to leave the employ of Aramark, (ii) hire any individual\nwho was an employee of Aramark as of the date of Employee’s termination of employment or within a six month period\nprior to such date, or (iii) induce or encourage any customer, client, supplier or other business relation of Aramark to\ncease or reduce doing business with Aramark or in any way interfere with the relationship between any such customer,\nclient, supplier or other business relation and Aramark.\nARTICLE 4\nDISCOVERIES AND WORKS\nEmployee hereby irrevocably assigns, transfers, and conveys to Aramark to the maximum extent permitted by\napplicable law Employee’s right, title and interest now or hereinafter acquired, in and to all Discoveries and Works (as\ndefined below) created, invented, designed, developed, improved or contributed to by Employee, either alone or jointly\nwith others, while employed by Aramark and within the scope of Employee’s employment and/or with the use of\nAramark’s resources. The terms “Discoveries and Works” include all works of authorship, inventions, intellectual\nproperty, materials, documents, or other work product (including, without limitation, Proprietary Information, patents\nand patent applications, patentable inventions, research, reports, software, code, databases, systems, applications,\npresentations, textual works, graphics and audiovisual materials). Employee shall have the burden of proving that any\nmaterials or works created, invented, designed, developed, contributed to or improved by\n3\nEmployee that are implicated by or relevant to employment by Aramark are not implicated by this provision. Employee\nagrees to (i) keep accurate records and promptly notify, make full disclosure to, and execute and deliver any documents\nand to take any further actions requested by Aramark to assist it in validating, effectuating, maintaining, protecting,\nenforcing, perfecting, recording, patenting or registering any of its rights hereunder, and (ii) renounce any and all claims,\nincluding, without limitation, claims of ownership and royalty, with respect to all Discoveries and Works and all other\nproperty owned or licensed by Aramark. Any Discoveries and Works that, within six months after the termination of\nEmployee’s employment with Aramark, are made, disclosed, reduced to a tangible or written form or description, or are\nreduced to practice by Employee and which pertain to the business carried on or products or services being sold or\ndeveloped by Aramark at the time of such termination shall, as between Employee and Aramark, be presumed to have\nbeen made during such employment with Aramark. Employee acknowledges that, to the fullest extent permitted by law,\nall Discoveries and Works shall be deemed “works made for hire” under the Copyright Act of 1976, as amended, 17\nU.S .C . Section 101. Employee hereby grants Aramark a perpetual, nonexclusive, royalty-free, worldwide, assignable,\nsublicensable license under all rights and intellectual property rights (including patent, industrial property, copyright,\ntrademark, trade secret, unfair competition and related laws) in any Works and Discoveries, for all purposes in\nconnection with Aramark’s current and future business, that Employee has created, invented, designed, developed,\nimproved or contributed to prior to Employee’s employment with Aramark that are relevant to or implicated by such\nemployment (“Prior Works”). Any Prior Works are disclosed by Employee in Schedule 1.\nARTICLE 5\nREMEDIES\nEmployee acknowledges that in the event of any violation by Employee of the provisions set forth in Articles 1,\n2, 3 or 4 above, Aramark will sustain serious, irreparable and substantial harm to its business, the extent of which will be\ndifficult to determine and impossible to fully remedy by an action at law for money damages. Accordingly, Employee\nagrees that, in the event of such violation or threatened violation by Employee, Aramark shall be entitled to an injunction\nbefore trial before any court of competent jurisdiction as a matter of course upon the posting of not more than a nominal\nbond, in addition to all such other legal and equitable remedies as may be available to Aramark. If Aramark is required\nto enforce the provisions set forth in Articles 2 and 3 above by seeking an injunction, Employee agrees that the relevant\ntime periods set forth in Articles 2 and 3 shall commence with the entry of the injunction. Employee further agrees that,\nin the event any of the provisions of this Agreement are determined by a court of competent jurisdiction to be invalid,\nillegal, or for any reason unenforceable as written, such court shall substitute a valid provision which most closely\napproximates the intent and purpose of the invalid provision and which would be enforceable to the maximum extent\npermitted by law.\nARTICLE 6\nPOST-EMPLOYMENT BENEFITS\n4\nA. If Employee’s employment is terminated by Aramark for any reason other than Cause, Employee shall be\nentitled to the following post-employment benefits:\n1. Severance Pay: Employee shall receive severance payments equivalent to Employee’s monthly base\nsalary as of the effective date of termination for twelve (12) months, should the Employee have less than one (1) year of\ncontinuous service with Aramark completed from the date of hire; and for eighteen (18) months, should the Employee\nhave one (1) year or more of continuous service with Aramark completed from the date of hire. Severance payments\nshall commence with the Employee’s effective date of termination and shall be made in accordance with Aramark’s\nnormal payroll cycle. The period during which Employee receives severance payments shall be referred to as the\n“Severance Pay Period.”\n2. Other Post-Employment Benefits\n(a) Basic Group medical and life insurance coverages shall continue under then prevailing terms\nduring the Severance Pay Period; provided, however, that if Employee becomes employed by a new employer during\nthat period, continuing coverage from Aramark will become secondary to any coverage afforded by the new employer.\nEmployee’s share of the premiums will be deducted from Employee’s severance payments. Basic Group medical\ncoverage provided during such period shall be applied against Aramark’s obligation to continue group medical coverage\nunder the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”). Upon termination of basic group\nmedical and life coverages, Employee may convert such coverages to individual policies to the extent allowable under\nthe terms of the plans providing such coverages.\n(b) If, at the time of termination, Aramark is providing Employee with a leased vehicle, then\nAramark will continue to provide the leased vehicle through the Severance Pay Period under the same terms and\nconditions as in effect at the time of the Employee’s termination. At the expiration of the Severance Pay Period,\nEmployee must return the leased vehicle to Aramark unless the Employee elects to purchase the vehicle in accordance\nwith the Executive Leadership Council policy then in effect. If Employee is receiving a car allowance at the time of the\nEmployee’s termination, such car allowance will continue to be paid through the Severance Pay Period. At the expiration\nof the Severance Pay Period, the Employee will cease being paid a car allowance.\n(c) Employee’s eligibility to participate in all other benefit and compensation plans, including,\nbut not limited to the Management Incentive Bonus, Long Term Disability, any nonqualified retirement plans, and any\nstock option or ownership plans, shall terminate as of the effective date of Employee’s termination unless provided\notherwise under the terms of a particular plan, provided, however, that participation in plans and programs made\navailable solely to Executive Leadership Council members, including, but not limited to the Executive Leadership\nCouncil Medical Plan, shall cease as of the effective date of termination or the date Employee’s Executive Leadership\nCommittee membership ceases, whichever occurs\n5\nfirst. Employee, however, shall have certain rights to continue the Executive Leadership Council Medical Plan under\nCOBRA.\nB. Termination for “Cause” shall be defined as termination of employment due to: (i) conviction or plea of\nguilty or nolo contendere to a felony, (ii) intentional fraud or dishonesty with respect to Aramark that causes material and\ndemonstrable harm to Aramark, (iii) willful and continuous failure to perform lawfully assigned duties that are consistent\nwith the Employee’s position with Aramark, (iv) willful violation of Aramark’s Business Conduct Policy that causes\nmaterial harm to Aramark or its business reputation, or (v) intentionally working against the best interests of Aramark; in\nany case of conduct described in clause (ii)-(v), only if such conduct continues beyond ten business days after receipt by\nthe Employee from Aramark of a written demand to cure such conduct.\nC. If Employee is terminated by Aramark for reasons other than Cause, Employee will receive the severance\npayments and other post-employment benefits during the Severance Pay Period even if Employee commences other\nemployment during such period provided such employment does not violate the terms of Article 2, and subject to the\nprovisions of Article 6.E.\nNotwithstanding anything else contained in this Article 6 to the contrary, Aramark may choose not to commence\n(or to discontinue) providing any payment or benefit unless and until Employee executes and delivers, without\nrevocation, a release in form reasonably acceptable to Aramark, as described in Article 6.E within 60 days following\nEmployee’s termination of employment; provided, however, that subject to receipt of such executed release, Aramark\nshall commence providing such payments and benefits within 75 days following the date of termination of Employee’s\nemployment.\nD. In addition to the remedies set forth in Article 5, Aramark reserves the right to terminate all severance\npayments and other post-employment benefits if Employee violates the covenants set forth in Articles 1, 2, 3 or 4 above\nin any material respect.\nE. Employee’s receipt of severance and other post-employment benefits under this Agreement is contingent on\n(i) Employee’s execution of a release in a form reasonably acceptable to Aramark, except that such release shall not\ninclude any claims by Employee to enforce Employee’s rights under, or with respect to, (1) this Agreement (including\nthe attached Exhibit B), (2) the Certificate of Incorporation and By-laws of Aramark, (3) any indemnification agreement\nbetween the Employee and Aramark, (4) any Stockholders Agreement among Aramark and the holders party thereto (the\n“Stockholders Agreement”) and any other agreement referenced therein, or (5) any Aramark benefit plan pursuant to its\nterms, and (ii) the expiration of the applicable Age Discrimination in Employment Act revocation period without such\nrelease being revoked by Employee.\nARTICLE 7\nTERM OF EMPLOYMENT\nEmployee acknowledges that Aramark has the right to terminate Employee’s employment at any time for any\nreason whatsoever, provided, however, that any termination by Aramark for\n6\nreasons other than Cause shall result in the severance and the post-employment benefits described in Article 6 above, to\nbecome due in accordance with the terms of this Agreement subject to the conditions set forth in this Agreement.\nEmployee further acknowledges that the severance payments made and other benefits provided by Aramark are in full\nsatisfaction of any obligations Aramark may have resulting from Aramark’s exercise of its right to terminate Employee’s\nemployment, except for those obligations which are intended to survive termination such as the payments to be made\npursuant to retirement plans, deferred compensation plans, conversion of insurance, and the plans and other documents\nand agreements referred to in Article 6.E above.\nARTICLE 8\nMISCELLANEOUS\nA. As used throughout this Agreement, Aramark includes Aramark and its subsidiaries and affiliates or any\ncorporation, joint venture, or other entity in which Aramark or its subsidiaries or affiliates has an equity interest in excess\nof ten percent (10%).\nB. Notwithstanding anything to the contrary contained herein, Employee shall, after termination of employment\nfor Good Reason by Employee or other than for Cause by Aramark, retain all rights to indemnification under applicable\nlaw or any agreement (including, without limitation, the Stockholders Agreement), or under Aramark’s or any parent\ncorporation’s Certificate of Incorporation or By-Laws at a level that is at least as favorable to the Employee as that\ncurrently provided. In addition, the Company shall maintain Director’s and Officer’s liability insurance on behalf of\nEmployee, at the level in effect immediately prior to such date of termination, for the three-year period following the\ndate of termination, and throughout the period of any applicable statute of limitations.\nC. In the event that it is reasonably determined by Aramark that, as a result of the deferred compensation tax\nrules under Section 409A of the Internal Revenue Code of 1986, as amended (and any related regulations or other\npronouncements thereunder) (“the Deferred Compensation Tax Rules”), any of the payments and benefits that Employee\nis entitled to under the terms of this Agreement (including under Exhibit B) may not be made at the time contemplated\nby the terms hereof or thereof, as the case may be, without causing Employee to be subject to tax under the Deferred\nCompensation Tax Rules, Aramark shall, in lieu of providing such payment or benefit when otherwise due under this\nAgreement, instead provide such payment or benefit on the first day on which such provision would not result in\nEmployee incurring any tax liability under the Deferred Compensation Tax Rules; which day, if Employee is a “specified\nemployee” within the meaning of the Deferred Compensation Tax Rules, shall be the first day of the seventh month\nfollowing the date of Employee’s termination of employment (or the earliest date as is permitted under the Deferred\nCompensation Tax Rules, without any accelerated or additional tax); provided, further, that to the extent that the amount\nof payments due under Article 6.A (or Exhibit B, as applicable) are not subject to the Deferred Compensation Tax Rules\nby virtue of the application of Treas. Reg. Sec. 1.409A-1(b)(9)(iii)(A), such payments may be made prior to the\nexpiration of such six-month period. In addition, if the commencement of any payment or benefit provided under Article\n6 that constitutes “deferred compensation”\n7\nunder the Deferred Compensation Tax Rules could, by application of the terms conditioning such payment or benefit\nupon the execution and non-revocation of a release set forth in Article 6, occur in one of two taxable years, then the\ncommencement of such payment shall begin on the first payroll date occurring in January of such second taxable year.\nTo the extent any reimbursements or in-kind benefits due to Employee under this Agreement constitute “deferred\ncompensation” under the Deferred Compensation Tax Rules, any such reimbursements or in-kind benefits shall be paid\nto Employee in a manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv). Additionally, to the extent that\nEmployee's receipt of any in-kind benefits from Aramark or its affiliates must be delayed pursuant to this Section due to\nEmployee’s status as a “specified employee,” Employee may elect to instead purchase and receive such benefits during\nthe period in which the provision of benefits would otherwise be delayed by paying the Aramark (or its affiliates) for the\nfair market value of such benefits (as determined by Aramark in good faith) during such period. Any amounts paid by\nEmployee pursuant to the preceding sentence shall be reimbursed to Employee (with interest thereon) as described above\non the date that is the first day of the seventh month following Employee’s separation from service. In the event that any\npayments or benefits that Aramark would otherwise be required to provide under this Agreement cannot be provided in\nthe manner contemplated herein without subjecting Employee to tax under the Deferred Compensation Tax Rules,\nAramark shall provide such intended payments or benefits to Employee in an alternative manner that conveys an\nequivalent economic benefit to Employee as soon as practicable as may otherwise be permitted under the Deferred\nCompensation Tax Rules. Without limiting the generality of the foregoing, Employee may notify Aramark if he believes\nthat any provision of this Agreement (or of any award of compensation including equity compensation or benefits)\nwould cause Employee to incur any additional tax under Section 409A and, if Aramark concurs with such belief after\ngood faith review or Aramark independently makes such determination, Aramark shall, after consulting with Employee,\nuse reasonable best efforts to reform such provision to comply with Section 409A through good faith modifications to\nthe minimum extent reasonably appropriate to conform the Deferred Compensation Tax Rules; provided that neither\nAramark nor any of its employees or representatives shall have any liability to Employee with respect thereto. For\npurposes of the Deferred Compensation Tax Rules, each payment made under this Agreement (including, without\nlimitation, each installment payment due under Article 6.A and Exhibit B, as applicable) shall be designated as a\n“separate payment” within the meaning of the Deferred Compensation Tax Rules, and references herein to Employee’s\n“termination of employment” shall refer to Employee’s separation from service with Aramark and its affiliates within the\nmeaning of the Deferred Compensation Tax Rules.\nD. In the event of a Change of Control as defined in the attached Exhibit B, the provisions of Exhibit B shall\napply to Employee. Further, pursuant to the Deferred Compensation Tax Rules, Aramark, in its discretion, is permitted to\naccelerate the time and form of payments provided under the deferred compensation arrangement set forth in this\nAgreement (including Exhibit B), where the right to the payment arises due to a termination of the arrangement within\nthe 30 days preceding or the 12 months following a change in control event (as defined in the Deferred Compensation\nTax Rules).\n8\nE. If Employee’s employment with Aramark terminates solely by reason of a transfer of stock or assets of, or a\nmerger or other disposition of, a subsidiary of Aramark (whether direct or indirect), such termination shall not be\ndeemed a termination of employment by Aramark for purposes of this Agreement, provided that Aramark requires the\nsubsequent employer, by agreement, to expressly assume and agree to perform this Agreement in the same manner and\nto the same extent that Aramark would be required to perform it if no such transaction had taken place. In such case,\nEmployee acknowledges and agrees that Aramark may assign this Agreement and Aramark’s rights hereunder, and\nparticularly Articles 1, 2, 3 and 4, in its sole discretion and without advance approval by Employee. In such case,\nEmployee agrees that Aramark may assign this Agreement and all references to “Aramark” contained in this Agreement\nshall thereafter be deemed to refer to the subsequent employer.\nF. Employee shall not be required to mitigate damages or the amount of any payment provided for under this\nAgreement by seeking other employment or otherwise.\nG. This Agreement shall supersede and substitute for any previous post-employment or severance agreement\nbetween Employee and Aramark.\nH. In the event any one or more of the provisions of this Agreement shall be or become invalid, illegal or\nunenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall\nnot be affected thereby.\nI. The terms of this Agreement shall be governed by the laws of the Commonwealth of Pennsylvania, without\nregard to conflicts of laws principles thereof. For purposes of any action or proceeding, Employee irrevocably submits to\nthe non-exclusive jurisdiction of the courts of Pennsylvania and the courts of the United States of America located in\nPennsylvania for the purpose of any judicial proceeding arising out of or relating to this Agreement, and acknowledges\nthat the designated fora have a reasonable relation to the Agreement and to the parties’ relationship with one another.\nNotwithstanding the provisions of this Article 8.I, Aramark may, in its discretion, bring an action or special proceeding\nin any court of competent jurisdiction for the purpose of seeking temporary or preliminary relief pending resolution of a\ndispute.\nJ. Employee expressly consents to the application of Article 8.I to any judicial action or proceeding arising out\nof or relating to this Agreement. Aramark shall have the right to serve legal process upon Employee in any manner\npermitted by law. In addition, Employee irrevocably appoints the Executive Vice President, Human Resources of\nAramark (or any successor) as Employee’s agent for service of legal process in connection with any such action or\nproceeding and Employee agrees that service of legal process upon such agent, who shall promptly advise Employee of\nany such service of legal process at the address of Employee then in the records of Aramark, shall be deemed in every\nrespect effective service of legal process upon Employee in any such action or proceeding.\nK. Employee hereby waives, to the fullest extent permitted by applicable law, any objection that Employee now\nor hereafter may have to personal jurisdiction or to the laying of venue of any action or proceeding brought in any court\nreferenced in Article 8.I and hereby agrees not to plead or claim the same.\n9\nL. Notwithstanding any other provision of this Agreement, Aramark may, to the extent required by law,\nwithhold applicable federal, state and local income and other taxes from any payments due to Employee hereunder.\nM. Employee and Aramark acknowledge that for purposes of Article 6, Employee’s last hire date with Aramark\nis April 6, 2015.\nN. Employee expressly acknowledges and agrees that the Incentive Compensation Recoupment Policy set forth\nin Exhibit to this Agreement is binding on Employee and that Employee is a Covered Employee as defined in that policy\nO. This Agreement shall be binding upon, inure to the benefit of and be enforceable by Aramark and Employee,\nand their respective heirs, legal representatives, successors and assigns. Employee acknowledges and agrees that this\nAgreement, including its provisions on post-employment restrictions, is specifically assignable by Aramark. Employee\nhereby consents to such future assignment and agrees not to challenge the validity of such future assignment.\nIN WITNESS WHEREOF, and intending to be legally bound, the parties hereto have caused this Agreement to\nbe signed this 14th date of March, 2015.\n/s/ Stephen P. Bramlage, Jr.\nAramark\nStephen Bramlage, Jr.\nBy: /s/ Lynn B. McKee\n10\nSchedule 1\nPrior Works*\n11\nExhibit A\nAramark\nIncentive Compensation Recoupment Policy\nOverview\nAramark (the “Company”) has adopted this incentive compensation recoupment policy (the “Policy”) in order to\nensure that incentive compensation is paid based on accurate financial data. In the event of an accounting restatement as\ndescribed below the Company may seek recovery of incentive compensation that would have not been paid if the correct\nperformance data had been used to determine the amount payable. The Board of Directors (the “Board”) and the\nCompensation and Human Resources Committee of the Board (the “Committee”) shall have full authority to interpret\nand enforce the Policy.\nCovered Employees\nThe Policy applies to “Covered Employees” who are: the executive officers of the Company and its subsidiaries\n(as defined under Rule 3b-7 under the Securities Exchange Act of 1934, as amended) and all other direct reports of the\nChief Executive Officer of the Company.\nIncentive Compensation\nFor purposes of this Policy, “incentive compensation” means cash performance bonuses and incentive stock\nawards including performance stock units paid, granted, vested or accrued under any Company plan or agreement in the\nform of cash or Company common stock whose payment or vesting is based on the achievement of one or more financial\nmetrics.\nAccounting Restatement; Calculation of Overpayment\nIf the Board or the Committee determines that (i) incentive compensation of a Covered Employee was overpaid,\nin whole or in part, as a result of a restatement of the reported financial or operating results of the Company due to\nmaterial non-compliance with financial reporting requirements under the securities laws (unless due to a change in\naccounting policy or applicable law) and (ii) such Covered Employee has engaged in misconduct that causes or\ncontributed, directly or indirectly, to the non-compliance that resulted in the obligation to restate the Company’s reported\nfinancial or operating results, the Board or the Committee will determine, in its discretion, whether the Company shall,\nto the extent permitted by applicable law, seek to recover or cancel the incentive compensation granted, paid to, issued or\nvested in excess of the incentive compensation that would have been paid or granted to such Covered Employee or the\nincentive compensation in which such Covered Employee would have vested had the actual payment, granting or vesting\nbeen calculated based on the accurate data or restated results, as applicable (the “Overpayment”).\n12\nForms of Recovery\nIf the Board or the Committee determines to seek recovery for the Overpayment, the Company shall have the\nright to demand that the Covered Employee reimburse the Company for the Overpayment. The Board or the Committee\nshall have the discretion to determine the form, amount and timing of any repayment. To the extent the Covered\nEmployee does not make reimbursement of the Overpayment, the Company shall have the right to enforce the repayment\nthrough the reduction or cancellation of outstanding and future incentive compensation and shall also have the right to\nsue for repayment. To the extent any shares have been issued under vested awards or such shares have been sold by the\nCovered Employee, the Company shall have the right to cancel any other outstanding stock-based awards with a value\nequivalent to the Overpayment, as determined by the Board or the Committee.\nTime Period for Overpayment Review\nThe Board or the Committee may make determinations of whether the Company shall seek recovery or\ncancellation of the Overpayment at any time through the end of the third fiscal year following the year for which the\ninaccurate performance criteria were measured; provided, that if steps have been taken within such period to restate the\nCompany’s financial or operating results, the time period shall be extended until such restatement is completed. For\nillustrative purposes only, this means that if incentive compensation is paid in late calendar 2015 for performance metrics\nbased on fiscal year 2015 performance, the compensation shall be subject to review for Overpayment until the end of the\n2018 fiscal year. Notwithstanding the above, if the Board or the Committee determines that any Covered Employee\nengaged in fraud or misconduct, the Board or the Committee shall be entitled to seek recovery or cancellation of the\nOverpayment with respect to such Covered Employee for a period of six years after the act of fraud or misconduct, as\nsuch time period is calculated by the Board or Committee.\nNo Additional Payments\nIn no event shall the Company be required to award Covered Employees an additional payment if the restated or\naccurate financial results would have resulted in a higher incentive compensation payment.\nApplicability\nThis Policy applies to all incentive compensation, granted, paid or credited after February 3, 2015, except to the\nextent prohibited by applicable law or any other legal obligation of the Company. Application of the Policy does not\npreclude the Company from taking any other action to enforce a Covered Employee’s obligations to the Company,\nincluding termination of employment or institution of civil or criminal proceedings or any other remedies that may be\navailable to the Company, including such remedies contained, without limitation, in the Company’s equity grant and\nemployment agreements, whether or not there is a restatement.\nCommittee Determination Final\n13\nAny determination by the Board or the Committee (or by any officer of the Company to whom enforcement\nauthority has been delegated) with respect to this Policy shall be final, conclusive and binding on all interested parties.\nOther Laws\nThe Policy is in addition to (and not in lieu of) any right of repayment, forfeiture or right of offset against any\nCovered Employee that is required pursuant to any statutory repayment requirement implemented at any time prior to or\nfollowing the adoption of the Policy. This policy is in addition to, and is not a substitute for, the requirements of Section\n304 of the Sarbanes-Oxley Act of 2002.\nAmendment; Termination\nThe Board or the Committee may amend or terminate this Policy at any time.\nAdopted on February 3, 2015\n14\nEXHIBIT B\nTERMINATION PROTECTION PROVISIONS\nThis is an Exhibit B to, and forms a part of, the Aramark Agreement Relating to Employment and Post-\nEmployment Competition between Stephen Bramlage, Jr. (the “Executive”) and Aramark.\n1. Defined Terms.\nUnless otherwise indicated, capitalized terms used in this Exhibit which are defined in Schedule A shall\nhave the meanings set forth in Schedule A.\n2. Effective Date; Term.\nThis Exhibit shall be effective as of the 6th day of April, 2015 (the “Effective Date) and shall remain in\neffect until the later of three years following a Change of Control and the date that all of the Company’s obligations\nunder this Exhibit have been satisfied in full.\n3. Change of Control Benefits.\nIf Executive’s employment with the Company is terminated at any time within the two years following a\nChange of Control by the Company without Cause, or by Executive for Good Reason (the effective date of either such\ntermination hereafter referred to as the “Termination Date”), Executive shall be entitled to the payments and benefits\nprovided hereafter in this Section 3 and as set forth in this Exhibit. If Executive’s employment by the Company is\nterminated prior to a Change of Control by the Company (i) at the request of a party (other than the Company) involved\nin the Change of Control or (ii) otherwise in connection with or in anticipation of a Change of Control that subsequently\noccurs, Executive shall be entitled to the benefits provided hereafter in this Section 3 and as set forth in this Exhibit, and\nExecutive’s Termination Date shall be deemed to have occurred immediately following the Change of Control. Payment\nof benefits under this Exhibit shall be in lieu of any benefits payable under the Aramark Agreement relating to\nEmployment and Post-Employment Competition of which this Exhibit is a part, except as provided in Section 3(b)\nhereof. Notice of termination without Cause or for Good Reason shall be given in accordance with Section 13, and shall\nindicate the specific termination provision hereunder relied upon, the relevant facts and circumstances and the\nTermination Date.\na. Severance Payments. The Company shall pay Executive cash benefits equal to:\n(1) two times Executive’s Base Salary in effect on the date of the Change of Control or the\nTermination Date, whichever is higher; provided that if any reduction of the Base Salary has occurred, then the Base\nSalary on either date shall be as in effect\n15\nimmediately prior to such reduction, payable in regular installments at such times as would otherwise be the Company’s\nusual payroll practice over a period of two years; and\n(2) the higher of: (A) two times Executive’s Target Bonus in effect on the date of the Change of\nControl or the Termination Date, whichever is greater; or (B) two times Executive’s most recent actual annual bonus,\npayable in either case ratably in regular installments at the same time as payments are made to Executive under Section\n3(a)(1) above; provided that if any reduction of the Target Bonus has occurred, then the Target Bonus on either date shall\nbe as in effect immediately prior to such reduction; and\n(3) Executive’s Target Bonus (as determined in (2), above) multiplied by a fraction, the\nnumerator of which shall equal the number of days Executive was employed by the Company in the Company fiscal year\nin which the Termination Date occurs and the denominator of which shall equal 365, payable as a cash lump sum within\nforty days after the Termination Date.\nb. Continuation of Benefits. Until the second anniversary of the Termination Date, the Company shall at\nits expense provide Executive and Executive’s spouse and dependents with medical, life insurance and disability\ncoverages at the level provided to Executive immediately prior to the Change of Control; provided, however, that if\nExecutive becomes employed by a new employer, continuing coverage from the Company will become secondary to any\ncoverage afforded by the new employer. The Company shall also provide the benefits described in Article 6.A.2.b of the\nManagement Committee Agreement (as defined in Section 8 hereof); provided that such benefits shall continue until the\nsecond anniversary of the Termination Date (instead of the “Severance Pay Period” as defined in the Management\nCommittee Agreement).\nc. Payment of Earned But Unpaid Amounts. Within forty days after the Termination Date, the Company\nshall pay Executive the Base Salary through the Termination Date, any Bonus earned but unpaid as of the Termination\nDate for any previously completed fiscal year of the Company, to the extent not previously deferred under a particular\ndeferred compensation plan, and reimbursement for any unreimbursed expenses properly incurred by Executive in\naccordance with Company policies prior to the Termination Date. Executive shall also receive such employee benefits, if\nany, to which Executive may be entitled from time to time under the employee benefit or fringe benefit plans, policies or\nprograms of the Company, other than any Company severance policy (payments and benefits in this subsection (c), the\n“Accrued Benefits”).\nd. Outplacement Counseling. For the two-year period following the Termination Date (or, if earlier, the\ndate Executive first obtains full-time employment after the Termination Date), the Company shall reimburse all\nreasonable expenses incurred by Executive for professional outplacement services by qualified consultants selected by\nExecutive, in an amount not to exceed 20% of the Executive’s Base Salary in effect on the date of the Change of Control\nor the Termination Date, whichever is higher. All such reimbursement payments shall be made prior to the last day of the\nsecond calendar year following the calendar year in which the Termination Date occurs.\n16\ne. Vesting of Other Benefits. Executive shall be entitled to such accelerated vesting of outstanding\nequity-based awards or retirement plan benefits as is specified under the terms of the applicable plans, agreements and\narrangements.\n4. Mitigation.\nExecutive shall not be required to mitigate damages or the amount of any payment provided for under this\nExhibit by seeking other employment or otherwise, and, subject to Section 3(b), compensation earned from such\nemployment or otherwise shall not reduce the amounts otherwise payable under this Exhibit. No amounts payable under\nthis Exhibit shall be subject to reduction or offset in respect of any claims which the Company (or any other person or\nentity) may have against Executive.\n5. Excise Tax Consequences.\na. In the event it shall be determined that any payment, benefit or distribution (or combination thereof)\nby the Company, any of its affiliates, or one or more trusts established by the Company for the benefit of its employees,\nto or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this\nExhibit, or otherwise) (a “Payment”) is subject to the excise tax imposed by Section 4999 of the Code or any interest or\npenalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and\npenalties, hereinafter collectively referred to as the “Excise Tax”), if the net after-tax amount of such Payments, after\nExecutive has paid all taxes due thereon (including, without limitation, taxes due under Section 4999 of the Code) is less\nthan the net after-tax amount of all such Payments and benefits otherwise due to Executive in the aggregate, if such\naggregate Payments were reduced to an amount equal to 2.99 times the Executive’s “base amount” (as defined in Section\n280G(b)(3) of the Code), then the aggregate amount of the payments and benefits shall be reduced to an amount that will\nequal 2.99 times the Executive’s base amount. To the extent such aggregate parachute payment amounts are required to\nbe so reduced, the parachute payment amounts due to the Executive (but no non-parachute payment amounts) shall be\nreduced in the following order: (i) payments and benefits due under Section 3.a of this Exhibit shall be reduced (if\nnecessary, to zero) with amounts that are payable last reduced first; (ii) payments and benefits due in respect of any\nequity fully valued (without regard to any discounts for present value) for purposes of the calculation to be made under\nSection 280G of the Code for purposes of this Section 5 (the “280G Calculation”) in reverse order of when payable; and\n(iii) payments and benefits due in respect of any options or stock appreciation rights with regard to Holdings equity\nsecurities valued under the 280G Calculation based on time of vesting shall be reduced in an order that is most beneficial\nto the Executive.\nb. All determinations required to be made under this Section 5, including whether and when a cutback is\nto be made, and the assumptions to be utilized in arriving at such determination, shall be made by such nationally\nrecognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”) which shall\nprovide detailed supporting calculations both to the Company and Executive within ten business days of the receipt of\nnotice from Executive that there has been a Payment, or such earlier time as is requested by the Company.\n17\nc. Notwithstanding anything contained in this Agreement or any other agreement between the Executive\nand the Company or any of its subsidiaries to the contrary, the Executive and the Company shall in good faith attempt to\nagree on steps to ensure that no payments to which the Executive would otherwise be entitled to receive pursuant to this\nAgreement or any such other agreement will be “parachute payments” (as defined in Section 280G(b)(2) of the Code).\n6. Termination for Cause.\nNothing in this Exhibit shall be construed to prevent the Company from terminating Executive’s\nemployment for Cause. If Executive is terminated for Cause, the Company shall have no obligation to make any\npayments under this Exhibit, except for the Accrued Benefits.\n7. Indemnification; Director’s and Officer’s Liability Insurance.\nExecutive shall, after the Termination Date, retain all rights to indemnification under applicable law, any\nagreements, (including without limitation, the Stockholders Agreement), or under the Company’s Certificate of\nIncorporation or By-Laws, as they may be amended or restated from time to time. In addition, the Company shall\nmaintain Director ’s and Officer’s liability insurance on behalf of Executive, at the level in effect immediately prior to the\nTermination Date, for the three year period following the Termination Date, and throughout the period of any applicable\nstatute of limitations.\n8. Executive Covenants.\nThis is an Exhibit B to, and forms a part of, the Aramark Agreement Relating to Employment and Post-\nEmployment Competition between Executive and Aramark (the “Management Committee Agreement”). This Exhibit\nshall not diminish in any way Executive’s rights under the terms of such Management Committee Agreement, except\nthat Executive’s receipt of benefits under this Exhibit is contingent upon Executive’s compliance in all material respects\nwith all of the terms and conditions of the Management Committee Agreement.\n9. Costs of Proceedings.\nEach party shall pay its own costs and expenses in connection with any legal proceeding (including\narbitration), relating to the interpretation or enforcement of any provision of this Exhibit, except that the Company shall\npay such costs and expenses, including attorneys’ fees and disbursements, of Executive if Executive prevails on a\nsubstantial portion of the claims in such proceeding.\n10. Assignment.\nExcept as otherwise provided herein, this Exhibit shall be binding upon, inure to the benefit of and be\nenforceable by the Company and Executive and their respective heirs, legal representatives, successors and assigns. If\nthe Company shall be merged into or consolidated\n18\nwith another entity, the provisions of this Exhibit shall be binding upon and inure to the benefit of the entity surviving\nsuch merger or resulting from such consolidation. The Company shall require any successor (whether direct or indirect,\nby purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company, by\nagreement, expressly to assume and agree to perform this Exhibit in the same manner and to the same extent that the\nCompany would be required to perform it if no such succession had taken place. The provisions of this Section 10 shall\ncontinue to apply to each subsequent employer of Executive hereunder in the event of any subsequent merger,\nconsolidation or transfer of assets of such subsequent employer.\n11. Withholding.\nNotwithstanding any other provision of this Exhibit, the Company may, to the extent required by law,\nwithhold applicable federal, state and local income and other taxes from any payments due to Executive hereunder.\n12. Applicable Law.\nThis Exhibit shall be governed by and construed in accordance with the laws of the Commonwealth of\nPennsylvania, without regard to conflicts of laws principles thereof.\n13. Notice.\nFor the purpose of this Exhibit, any notice and all other communication provided for in this Exhibit shall\nbe in writing and shall be deemed to have been duly given when delivered by hand or overnight courier or three days\nafter it has been mailed by United States registered mail, return receipt requested, postage prepaid, addressed to the\nrespective addresses set forth below, or to such other address as either party may have furnished to the other in writing in\naccordance herewith, except that notice of change of address shall be effective only upon receipt.\nIf to the Company:\nAramark\nAramark Tower\n1101 Market Street\nPhiladelphia, Pennsylvania 19107\nAttention: General Counsel\nIf to Executive:\nTo the most recent address of Executive set forth in the personnel records of the Company.\n14. Entire Agreement; Modification.\n19\nThis Exhibit constitutes the entire agreement between the parties and, except as expressly provided herein\nor in Article 6.E of the Management Committee Agreement or in any benefit plan of the Company or of any of its\naffiliates, supersedes all other prior agreements expressly concerning the effect of a Change of Control occurring after\nthe date of this Agreement with respect to the relationship between the Company and Executive. This Exhibit is not, and\nnothing herein shall be deemed to create, a contract of employment between the Company and Executive. This Exhibit\nmay be changed only by a written agreement executed by the Company and Executive.\n15. Severability.\nIn the event any one or more of the provisions of this Exhibit shall be or become invalid, illegal or\nunenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected\nthereby.\n20\nSchedule A\nCERTAIN DEFINITIONS\nAs used in this Exhibit, and unless the context requires a different meaning, the following terms, when\ncapitalized, have the meaning indicated:\n1.\n“Act” means the Securities Exchange Act of 1934, as amended.\n2.\n“Affiliate” shall have the meaning set forth in the Stockholders Agreement.\n3.\n“Base Salary” means Executive’s annual rate of base salary in effect on the date in question.\n4.\n“Bonus” means the amount payable to Executive under the Company’s applicable annual bonus plan with\nrespect to a fiscal year of the Company.\n5.\n“Cause” means “cause” as defined in the Management Committee Agreement of which this Schedule A\nforms a part.\n6.\n“Change of Control” means the first to occur of any of the following:\n(i) The acquisition by any individual entity or group, within the meaning of Section 13(d)(3) or 14(d)(2)\nof the Exchange Act, other than the Investor Groups and their Affiliates (the “Permitted Holders”), directly or indirectly,\nof beneficial ownership of equity securities of the Company representing more than 50% of the voting power of the then-\noutstanding equity securities of the Company entitled to vote generally in the election of directors (the “Company Voting\nSecurities”); provided, however, that for purposes of this subsection (i), the following shall not constitute a Change of\nControl: (A) any acquisition by the Company or any Sponsor Stockholder, (B) any acquisition by any employee benefit\nplan (or related trust) sponsored or maintained by the Company or any Subsidiary, or (C) any acquisition by any Person\npursuant to a transaction which complies with clauses (A) and (B) of subsection (ii) below; or\n(ii) The consummation of a reorganization, merger or consolidation or sale or other disposition of all or\nsubstantially all of the assets of the Company or the purchase of assets or stock of another entity (a “Business\nCombination”), in each case, unless immediately following such Business Combination, (A) all or substantially all of the\nbeneficial owners of the Company Voting Securities immediately prior to such Business Combination beneficially own\nmore than 50% of the then-outstanding combined voting power of the then-outstanding securities entitled to vote\ngenerally in the election of directors of the entity resulting from such Business Combination in substantially the same\nproportion (relative to each other) as their ownership immediately prior to such Business Combination of the Company\nVoting Securities, and (B) no Person (excluding the Permitted Holders) beneficially owns, directly or indirectly, more\nthan a majority of the combined voting power of the then-outstanding voting securities of such entity\n21\nexcept to the extent that such ownership of the Company existed prior to the Business Combination; or\n(iii) A majority of the members of the Company’s Board of Directors are replaced during any 12-month\nperiod by directors whose appointment or election is not endorsed by a majority of the current members of the\nCompany’s Board of Directors before such replacement or is not contemplated by the Stockholders Agreement as in\neffect on the date hereof.\nNotwithstanding paragraphs (i) through (iii) above, in no event will a Change of Control be deemed to\noccur if the Permitted Holders maintain a direct or indirect Controlling Interest in the Company. A “Controlling Interest”\nin an entity shall mean beneficial ownership of more than 50% of the voting power of the outstanding equity securities of\nthe entity.\n7.\n“Code” means the Internal Revenue Code of 1986, as amended.\n8.\n“Company” means Aramark or any of its parents and any successor or successors thereto.\n9.\n“Good Reason” means any of the following actions on or after a Change of Control, without Executive’s\nexpress prior written approval, other than due to Executive’s Permanent Disability or death:\n(a) any decrease in Base Salary or Target Bonus;\n(b) any decrease in Executive’s pension benefit opportunities or any material diminution in the\naggregate employee benefits, in each case, afforded to the Executive immediately prior to the Change of Control, but not\nincluding any such decrease or diminution that is inadvertent and that is cured within 30 days following written notice of\nsuch decrease or diminution by Executive to the Company;\n(c) any diminution in Executive’s title or reporting relationship, or substantial diminution in duties or\nresponsibilities (other than solely as a result of a Change of Control in which the Company immediately thereafter is no\nlonger publicly held); or\n(d) any relocation of Executive’s principal place of business of 35 miles or more, other than normal\ntravel consistent with past practice.\nExecutive shall have twelve months from the time Executive first becomes aware of the existence\nof Good Reason to resign for Good Reason.\nThe Executive must provide notice to the Company of the existence of the condition described above within a period not\nto exceed 90 days of the initial existence of the condition, upon the notice of which the Company shall have a period of\n30 days during which it may remedy the condition and not be required to pay the amount.\n22\n10.\n“Permanent Disability” means “permanent disability” as defined in the Company’s long-term disability plan\nas in effect from time to time, or if there shall be no plan, the inability of Executive to perform in all material respects\nExecutive’s duties and responsibilities to the Company or any affiliate for a period of six (6) consecutive months or for\nan aggregate of nine (9) months in any twenty-four (24) consecutive month period by reason of a physical or mental\nincapacity.\n11.\n“Permitted Holder” shall have the same meaning as set forth in the Stockholders Agreement.\n12.\n“Target Bonus” means the target Bonus established for Executive in respect of any given year, whether\nexpressed as a percentage of Base Salary or a dollar amount.\n23	EX-10.2 3 ex102elcagreement.htm EXHIBIT 10.2\nExhibit 10.2\nARAMARK AGREEMENT RELATING TO EMPLOYMENT AND\nPOST-EMPLOYMENT COMPETITION\nThis Agreement is between the undersigned individual (“Employee”) and Aramark.\nRECITALS\nWHEREAS, Aramark is a leading provider of managed services to business and industry, private and public\ninstitutions, and the general public, in the following business groups: food and support services and uniform and career\napparel;\nWHEREAS, Aramark has a proprietary interest in its business and financial plans and systems, methods of\noperation and other secret and confidential information, knowledge and data (“Proprietary Information”) which includes,\nbut is not limited to, all confidential, proprietary or non-public information, ideas and concepts; annual and strategic\nbusiness plans; financial plans, reports and systems including, profit and loss statements, sales, accounting forms and\nprocedures and other information regarding costs, pricing and the financial condition of Aramark and its business\nsegments and groups; management development reviews, including information regarding the capabilities and\nexperience of Aramark employees; intellectual property, including patents, inventions, discoveries, research and\ndevelopment, compounds, recipes, formulae, reports, protocols, computer software and databases; information regarding\nAramark’s relationships with its clients, customers, and suppliers and prospective clients, partners, customers and\nsuppliers; policy and procedure manuals, information regarding materials and documents in any form or medium\n(including oral, written, tangible, intangible, or electronic) concerning any of the above, or any past, current or future\nbusiness activities of Aramark that is not publicly available; compensation, recruiting and training, and human resource\npolicies and procedures; and data compilations, research, reports, structures, compounds, techniques, methods,\nprocesses, and know-how;\nWHEREAS, all such Proprietary Information is developed at great expense to Aramark and is considered by\nAramark to be confidential trade secrets;\nWHEREAS, Employee, as a senior manager, will have access to Aramark’s Proprietary Information, directly in\nthe course of Employee’s employment, and indirectly through interaction with and presentations by other Aramark\nsenior managers at the Executive Leadership Institute, Executive Leadership Council meetings, Presidents’ Council\nmeetings and the like;\nWHEREAS, Aramark will introduce Employee to Aramark clients, customers, suppliers and others, and will\nencourage, and provide resources for, Employee to develop professional relationships with Aramark’s clients, customers,\nsuppliers and others;\nWHEREAS, Aramark will provide specialized training and skills to Employee in connection with the\nperformance of Employee’s duties at Aramark which training involves the disclosure by Aramark to Employee of\nProprietary Information;\nWHEREAS, Aramark will be vulnerable to unfair post-employment competition by Employee because\nEmployee will have access to and knowledge of Aramark’s Proprietary Information, will have a personal relationship\nwith Aramark’s clients, customers, suppliers and others, and will generate good will which Employee acknowledges\nbelongs to Aramark;\nNOW, THEREFORE, in consideration of Employee’s employment with Aramark, the opportunity to receive the\ngrant of options to purchase common stock of Aramark, severance and other post-employment benefits provided for\nherein (including pursuant to Exhibit B hereto to which Employee acknowledges Employee is not otherwise entitled),\nand for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Employee\nagrees to enter into this Agreement with Aramark as a condition of employment pursuant to which Aramark will limit\nEmployee’s right to compete against Aramark during and following termination of employment on the terms set forth in\nthis Agreement. Intending to be legally bound, the parties agree as follows:\nARTICLE 1\nNON-DISCL.OSURE AND NON-DISPARAGEMENT\nEmployee shall not, during or after termination of employment, directly or indirectly, in any manner utilize or\ndisclose to any person, firm, corporation, association or other entity, except where required by law, any Proprietary\nInformation which is not generally known to the public, or has not otherwise been disclosed or recognized as standard\npractice in the industries in which Aramark is engaged. Employee shall, during and after termination of employment,\nrefrain from making any statements or comments of a defamatory or disparaging nature to any third party regarding\nAramark, or any of Aramark’s officers, directors, personnel, policies or products, other than to comply with law.\nARTICLE 2\nNON-COMPETITION\nA. Subject to Article 2. B. below, Employee, during Employee’s period of employment with Aramark, and for a\nperiod of two years following the voluntary or involuntary termination of employment, shall not, without Aramark’s\nwritten permission, which shall be granted or denied in Aramark’s sole discretion, directly or indirectly, associate with\n(including, but not limited to, association as a sole proprietor, owner, employer, partner, principal, investor, joint\nventurer, shareholder, associate, employee, member, consultant, contractor or otherwise), or acquire or maintain\nownership interest in, any Business which is competitive with that conducted by or developed for later implementation\nby Aramark at any time during the term of Employee’s employment, provided, however, if Employee’s employment is\ninvoluntarily terminated by Aramark for any reason other than Cause (as defined herein), or (ii) terminated by Employee\nfor Good Reason (as defined in Exhibit B) at any time following a Change of Control (as defined in Exhibit B) occurring\nafter the date of this Agreement, then the term of the non-competition provision set forth herein will be modified to be\neighteen months following such termination of employment. For purposes of this Agreement, “Business” shall be\ndefined as a person, corporation, firm, LLC, partnership, joint venture or other entity. Nothing in the foregoing shall\nprevent Employee from investing in a Business that is or becomes publicly traded, if Employee’s ownership is as a\npassive investor of less than 1% of the outstanding publicly traded stock of the Business.\nB. The provision set forth in Article 2.A above, shall apply to the full extent permitted by law (i) in all fifty\nstates, and (ii) each foreign country, possession or territory in which Aramark may be engaged in, or have plans to\nengage in, business (x) during Employee’s period of employment, or (y) in the case of a termination of employment, as\nof the effective date of such termination or at any time during the twenty-four month period prior thereto.\nC. Employee acknowledges that these restrictions are reasonable and necessary to protect the business interests\nof Aramark, and that enforcement of the provisions set forth in this Article 2 will not unnecessarily or unreasonably\nimpair Employee’s ability to obtain other employment following the termination (voluntary or involuntary) of\nEmployee’s employment with Aramark. Further, Employee acknowledges that the provisions set forth in this Article 2\nshall apply if Employee’s employment is involuntarily terminated by Aramark for Cause; as a result of the elimination of\nemployee’s position; for performance-related issues; or for any other reason or no reason at all.\nARTICLE 3\nNON-SOLICITATION\nDuring the period of Employee’s employment with Aramark and for a period of two years following the\ntermination of Employee’s employment, regardless of the reason for termination, Employee shall not, directly or\nindirectly: (i) induce or encourage any employee of Aramark to leave the employ of Aramark, (ii) hire any individual\nwho was an employee of Aramark as of the date of Employee’s termination of employment or within a six month period\nprior to such date, or (iii) induce or encourage any customer, client, supplier or other business relation of Aramark to\ncease or reduce doing business with Aramark or in any way interfere with the relationship between any such customer,\nclient, supplier or other business relation and Aramark.\nARTICLE 4\nDISCOVERIES AND WORKS\nEmployee hereby irrevocably assigns, transfers, and conveys to Aramark to the maximum extent permitted by\napplicable law Employee’s right, title and interest now or hereinafter acquired, in and to all Discoveries and Works (as\ndefined below) created, invented, designed, developed, improved or contributed to by Employee, either alone or jointly\nwith others, while employed by Aramark and within the scope of Employee’s employment and/or with the use of\nAramark’s resources. The terms “Discoveries and Works” include all works of authorship, inventions, intellectual\nproperty, materials, documents, or other work product (including, without limitation, Proprietary Information, patents\nand patent applications, patentable inventions, research, reports, software, code, databases, systems, applications,\npresentations, textual works, graphics and audiovisual materials). Employee shall have the burden of proving that any\nmaterials or works created, invented, designed, developed, contributed to or improved by\nEmployee that are implicated by or relevant to employment by Aramark are not implicated by this provision. Employee\nagrees to (i) keep accurate records and promptly notify, make full disclosure to, and execute and deliver any documents\nand to take any further actions requested by Aramark to assist it in validating, effectuating, maintaining, protecting,\nenforcing, perfecting, recording, patenting or registering any of its rights hereunder, and (ii) renounce any and all claims,\nincluding, without limitation, claims of ownership and royalty, with respect to all Discoveries and Works and all other\nproperty owned or licensed by Aramark. Any Discoveries and Works that, within six months after the termination of\nEmployee’s employment with Aramark, are made, disclosed, reduced to a tangible or written form or description, or are\nreduced to practice by Employee and which pertain to the business carried on or products or services being sold or\ndeveloped by Aramark at the time of such termination shall, as between Employee and Aramark, be presumed to have\nbeen made during such employment with Aramark. Employee acknowledges that, to the fullest extent permitted by law,\nall Discoveries and Works shall be deemed “works made for hire” under the Copyright Act of 1976, as amended, 17\nU.S.C. Section 101. Employee hereby grants Aramark a perpetual, nonexclusive, royalty-free, worldwide, assignable,\nsublicensable license under all rights and intellectual property rights (including patent, industrial property, copyright,\ntrademark, trade secret, unfair competition and related laws) in any Works and Discoveries, for all purposes in\nconnection with Aramark’s current and future business, that Employee has created, invented, designed, developed,\nimproved or contributed to prior to Employee’s employment with Aramark that are relevant to or implicated by such\nemployment (“Prior Works™). Any Prior Works are disclosed by Employee in Schedule 1.\nARTICLE 5\nREMEDIES\nEmployee acknowledges that in the event of any violation by Employee of the provisions set forth in Articles 1,\n2, 3 or 4 above, Aramark will sustain serious, irreparable and substantial harm to its business, the extent of which will be\ndifficult to determine and impossible to fully remedy by an action at law for money damages. Accordingly, Employee\nagrees that, in the event of such violation or threatened violation by Employee, Aramark shall be entitled to an injunction\nbefore trial before any court of competent jurisdiction as a matter of course upon the posting of not more than a nominal\nbond, in addition to all such other legal and equitable remedies as may be available to Aramark. If Aramark is required\nto enforce the provisions set forth in Articles 2 and 3 above by seeking an injunction, Employee agrees that the relevant\ntime periods set forth in Articles 2 and 3 shall commence with the entry of the injunction. Employee further agrees that,\nin the event any of the provisions of this Agreement are determined by a court of competent jurisdiction to be invalid,\nillegal, or for any reason unenforceable as written, such court shall substitute a valid provision which most closely\napproximates the intent and purpose of the invalid provision and which would be enforceable to the maximum extent\npermitted by law.\nARTICLE 6\nPOST-EMPL.OYMENT BENEFITS\nA. If Employee’s employment is terminated by Aramark for any reason other than Cause, Employee shall be\nentitled to the following post-employment benefits:\n1. Severance Pay: Employee shall receive severance payments equivalent to Employee’s monthly base\nsalary as of the effective date of termination for twelve (12) months, should the Employee have less than one (1) year of\ncontinuous service with Aramark completed from the date of hire; and for eighteen (18) months, should the Employee\nhave one (1) year or more of continuous service with Aramark completed from the date of hire. Severance payments\nshall commence with the Employee’s effective date of termination and shall be made in accordance with Aramark’s\nnormal payroll cycle. The period during which Employee receives severance payments shall be referred to as the\n“Severance Pay Period.”\n2. Other Post-Employment Benefits\n(a) Basic Group medical and life insurance coverages shall continue under then prevailing terms\nduring the Severance Pay Period; provided, however, that if Employee becomes employed by a new employer during\nthat period, continuing coverage from Aramark will become secondary to any coverage afforded by the new employer.\nEmployee’s share of the premiums will be deducted from Employee’s severance payments. Basic Group medical\ncoverage provided during such period shall be applied against Aramark’s obligation to continue group medical coverage\nunder the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”). Upon termination of basic group\nmedical and life coverages, Employee may convert such coverages to individual policies to the extent allowable under\nthe terms of the plans providing such coverages.\n \n(b) If, at the time of termination, Aramark is providing Employee with a leased vehicle, then\nAramark will continue to provide the leased vehicle through the Severance Pay Period under the same terms and\nconditions as in effect at the time of the Employee’s termination. At the expiration of the Severance Pay Period,\nEmployee must return the leased vehicle to Aramark unless the Employee elects to purchase the vehicle in accordance\nwith the Executive Leadership Council policy then in effect. If Employee is receiving a car allowance at the time of the\nEmployee’s termination, such car allowance will continue to be paid through the Severance Pay Period. At the expiration\nof the Severance Pay Period, the Employee will cease being paid a car allowance.\n(c) Employee’s eligibility to participate in all other benefit and compensation plans, including,\nbut not limited to the Management Incentive Bonus, Long Term Disability, any nonqualified retirement plans, and any\nstock option or ownership plans, shall terminate as of the effective date of Employee’s termination unless provided\notherwise under the terms of a particular plan, provided, however, that participation in plans and programs made\navailable solely to Executive Leadership Council members, including, but not limited to the Executive Leadership\nCouncil Medical Plan, shall cease as of the effective date of termination or the date Employee’s Executive Leadership\nCommittee membership ceases, whichever occurs\n \nfirst. Employee, however, shall have certain rights to continue the Executive Leadership Council Medical Plan under\nCOBRA.\nB. Termination for “Cause” shall be defined as termination of employment due to: (i) conviction or plea of\nguilty or nolo contendere to a felony, (ii) intentional fraud or dishonesty with respect to Aramark that causes material and\ndemonstrable harm to Aramark, (iii) willful and continuous failure to perform lawfully assigned duties that are consistent\nwith the Employee’s position with Aramark, (iv) willful violation of Aramark’s Business Conduct Policy that causes\nmaterial harm to Aramark or its business reputation, or (v) intentionally working against the best interests of Aramark; in\nany case of conduct described in clause (ii)-(v), only if such conduct continues beyond ten business days after receipt by\nthe Employee from Aramark of a written demand to cure such conduct.\nC. If Employee is terminated by Aramark for reasons other than Cause, Employee will receive the severance\npayments and other post-employment benefits during the Severance Pay Period even if Employee commences other\nemployment during such period provided such employment does not violate the terms of Article 2, and subject to the\nprovisions of Article 6.E.\nNotwithstanding anything else contained in this Article 6 to the contrary, Aramark may choose not to commence\n(or to discontinue) providing any payment or benefit unless and until Employee executes and delivers, without\nrevocation, a release in form reasonably acceptable to Aramark, as described in Article 6.E within 60 days following\nEmployee’s termination of employment; provided, however, that subject to receipt of such executed release, Aramark\nshall commence providing such payments and benefits within 75 days following the date of termination of Employee’s\nemployment.\nD. In addition to the remedies set forth in Article 5, Aramark reserves the right to terminate all severance\npayments and other post-employment benefits if Employee violates the covenants set forth in Articles 1, 2, 3 or 4 above\nin any material respect.\nE. Employee’s receipt of severance and other post-employment benefits under this Agreement is contingent on\n(i) Employee’s execution of a release in a form reasonably acceptable to Aramark, except that such release shall not\ninclude any claims by Employee to enforce Employee’s rights under, or with respect to, (1) this Agreement (including\nthe attached Exhibit B), (2) the Certificate of Incorporation and By-laws of Aramark, (3) any indemnification agreement\nbetween the Employee and Aramark, (4) any Stockholders Agreement among Aramark and the holders party thereto (the\n“Stockholders Agreement”) and any other agreement referenced therein, or (5) any Aramark benefit plan pursuant to its\nterms, and (ii) the expiration of the applicable Age Discrimination in Employment Act revocation period without such\nrelease being revoked by Employee.\nARTICLE 7\nTERM OF EMPLOYMENT\nEmployee acknowledges that Aramark has the right to terminate Employee’s employment at any time for any\nreason whatsoever, provided, however, that any termination by Aramark for\n \nreasons other than Cause shall result in the severance and the post-employment benefits described in Article 6 above, to\nbecome due in accordance with the terms of this Agreement subject to the conditions set forth in this Agreement.\nEmployee further acknowledges that the severance payments made and other benefits provided by Aramark are in full\nsatisfaction of any obligations Aramark may have resulting from Aramark’s exercise of its right to terminate Employee’s\nemployment, except for those obligations which are intended to survive termination such as the payments to be made\npursuant to retirement plans, deferred compensation plans, conversion of insurance, and the plans and other documents\nand agreements referred to in Article 6.E above.\nARTICLE 8\nMISCELIL.ANEOUS\nA. As used throughout this Agreement, Aramark includes Aramark and its subsidiaries and affiliates or any\ncorporation, joint venture, or other entity in which Aramark or its subsidiaries or affiliates has an equity interest in excess\nof ten percent (10%).\nB. Notwithstanding anything to the contrary contained herein, Employee shall, after termination of employment\nfor Good Reason by Employee or other than for Cause by Aramark, retain all rights to indemnification under applicable\nlaw or any agreement (including, without limitation, the Stockholders Agreement), or under Aramark’s or any parent\ncorporation’s Certificate of Incorporation or By-Laws at a level that is at least as favorable to the Employee as that\ncurrently provided. In addition, the Company shall maintain Director’s and Officer’s liability insurance on behalf of\nEmployee, at the level in effect immediately prior to such date of termination, for the three-year period following the\ndate of termination, and throughout the period of any applicable statute of limitations.\nC. Inthe event that it is reasonably determined by Aramark that, as a result of the deferred compensation tax\nrules under Section 409A of the Internal Revenue Code of 1986, as amended (and any related regulations or other\npronouncements thereunder) (“the Deferred Compensation Tax Rules”), any of the payments and benefits that Employee\nis entitled to under the terms of this Agreement (including under Exhibit B) may not be made at the time contemplated\nby the terms hereof or thereof, as the case may be, without causing Employee to be subject to tax under the Deferred\nCompensation Tax Rules, Aramark shall, in lieu of providing such payment or benefit when otherwise due under this\nAgreement, instead provide such payment or benefit on the first day on which such provision would not result in\nEmployee incurring any tax liability under the Deferred Compensation Tax Rules; which day, if Employee is a “specified\nemployee” within the meaning of the Deferred Compensation Tax Rules, shall be the first day of the seventh month\nfollowing the date of Employee’s termination of employment (or the earliest date as is permitted under the Deferred\nCompensation Tax Rules, without any accelerated or additional tax); provided, further, that to the extent that the amount\nof payments due under Article 6.A (or Exhibit B, as applicable) are not subject to the Deferred Compensation Tax Rules\nby virtue of the application of Treas. Reg. Sec. 1.409A-1(b)(9)(iii)(A), such payments may be made prior to the\nexpiration of such six-month period. In addition, if the commencement of any payment or benefit provided under Article\n6 that constitutes “deferred compensation”\nunder the Deferred Compensation Tax Rules could, by application of the terms conditioning such payment or benefit\nupon the execution and non-revocation of a release set forth in Article 6, occur in one of two taxable years, then the\ncommencement of such payment shall begin on the first payroll date occurring in January of such second taxable year.\nTo the extent any reimbursements or in-kind benefits due to Employee under this Agreement constitute “deferred\ncompensation” under the Deferred Compensation Tax Rules, any such reimbursements or in-kind benefits shall be paid\nto Employee in a manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv). Additionally, to the extent that\nEmployee's receipt of any in-kind benefits from Aramark or its affiliates must be delayed pursuant to this Section due to\nEmployee’s status as a “specified employee,” Employee may elect to instead purchase and receive such benefits during\nthe period in which the provision of benefits would otherwise be delayed by paying the Aramark (or its affiliates) for the\nfair market value of such benefits (as determined by Aramark in good faith) during such period. Any amounts paid by\nEmployee pursuant to the preceding sentence shall be reimbursed to Employee (with interest thereon) as described above\non the date that is the first day of the seventh month following Employee’s separation from service. In the event that any\npayments or benefits that Aramark would otherwise be required to provide under this Agreement cannot be provided in\nthe manner contemplated herein without subjecting Employee to tax under the Deferred Compensation Tax Rules,\nAramark shall provide such intended payments or benefits to Employee in an alternative manner that conveys an\nequivalent economic benefit to Employee as soon as practicable as may otherwise be permitted under the Deferred\nCompensation Tax Rules. Without limiting the generality of the foregoing, Employee may notify Aramark if he believes\nthat any provision of this Agreement (or of any award of compensation including equity compensation or benefits)\nwould cause Employee to incur any additional tax under Section 409A and, if Aramark concurs with such belief after\ngood faith review or Aramark independently makes such determination, Aramark shall, after consulting with Employee,\nuse reasonable best efforts to reform such provision to comply with Section 409A through good faith modifications to\nthe minimum extent reasonably appropriate to conform the Deferred Compensation Tax Rules; provided that neither\nAramark nor any of its employees or representatives shall have any liability to Employee with respect thereto. For\npurposes of the Deferred Compensation Tax Rules, each payment made under this Agreement (including, without\nlimitation, each installment payment due under Article 6.A and Exhibit B, as applicable) shall be designated as a\n“separate payment” within the meaning of the Deferred Compensation Tax Rules, and references herein to Employee’s\n“termination of employment” shall refer to Employee’s separation from service with Aramark and its affiliates within the\nmeaning of the Deferred Compensation Tax Rules.\nD. In the event of a Change of Control as defined in the attached Exhibit B, the provisions of Exhibit B shall\napply to Employee. Further, pursuant to the Deferred Compensation Tax Rules, Aramark, in its discretion, is permitted to\naccelerate the time and form of payments provided under the deferred compensation arrangement set forth in this\nAgreement (including Exhibit B), where the right to the payment arises due to a termination of the arrangement within\nthe 30 days preceding or the 12 months following a change in control event (as defined in the Deferred Compensation\nTax Rules).\nE. If Employee’s employment with Aramark terminates solely by reason of a transfer of stock or assets of, or a\nmerger or other disposition of, a subsidiary of Aramark (whether direct or indirect), such termination shall not be\ndeemed a termination of employment by Aramark for purposes of this Agreement, provided that Aramark requires the\nsubsequent employer, by agreement, to expressly assume and agree to perform this Agreement in the same manner and\nto the same extent that Aramark would be required to perform it if no such transaction had taken place. In such case,\nEmployee acknowledges and agrees that Aramark may assign this Agreement and Aramark’s rights hereunder, and\nparticularly Articles 1, 2, 3 and 4, in its sole discretion and without advance approval by Employee. In such case,\nEmployee agrees that Aramark may assign this Agreement and all references to “Aramark” contained in this Agreement\nshall thereafter be deemed to refer to the subsequent employer.\nF. Employee shall not be required to mitigate damages or the amount of any payment provided for under this\nAgreement by seeking other employment or otherwise.\nG. This Agreement shall supersede and substitute for any previous post-employment or severance agreement\nbetween Employee and Aramark.\nH. Inthe event any one or more of the provisions of this Agreement shall be or become invalid, illegal or\nunenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall\nnot be affected thereby.\nI. The terms of this Agreement shall be governed by the laws of the Commonwealth of Pennsylvania, without\nregard to conflicts of laws principles thereof. For purposes of any action or proceeding, Employee irrevocably submits to\nthe non-exclusive jurisdiction of the courts of Pennsylvania and the courts of the United States of America located in\nPennsylvania for the purpose of any judicial proceeding arising out of or relating to this Agreement, and acknowledges\nthat the designated fora have a reasonable relation to the Agreement and to the parties’ relationship with one another.\nNotwithstanding the provisions of this Article 8.1, Aramark may, in its discretion, bring an action or special proceeding\nin any court of competent jurisdiction for the purpose of seeking temporary or preliminary relief pending resolution of a\ndispute.\nJ.  Employee expressly consents to the application of Article 8.1 to any judicial action or proceeding arising out\nof or relating to this Agreement. Aramark shall have the right to serve legal process upon Employee in any manner\npermitted by law. In addition, Employee irrevocably appoints the Executive Vice President, Human Resources of\nAramark (or any successor) as Employee’s agent for service of legal process in connection with any such action or\nproceeding and Employee agrees that service of legal process upon such agent, who shall promptly advise Employee of\nany such service of legal process at the address of Employee then in the records of Aramark, shall be deemed in every\nrespect effective service of legal process upon Employee in any such action or proceeding.\nK. Employee hereby waives, to the fullest extent permitted by applicable law, any objection that Employee now\nor hereafter may have to personal jurisdiction or to the laying of venue of any action or proceeding brought in any court\nreferenced in Article 8.1 and hereby agrees not to plead or claim the same.\nL. Notwithstanding any other provision of this Agreement, Aramark may, to the extent required by law,\nwithhold applicable federal, state and local income and other taxes from any payments due to Employee hereunder.\nM. Employee and Aramark acknowledge that for purposes of Article 6, Employee’s last hire date with Aramark\nis April 6, 2015.\nN. Employee expressly acknowledges and agrees that the Incentive Compensation Recoupment Policy set forth\nin Exhibit to this Agreement is binding on Employee and that Employee is a Covered Employee as defined in that policy\nO. This Agreement shall be binding upon, inure to the benefit of and be enforceable by Aramark and Employee,\nand their respective heirs, legal representatives, successors and assigns. Employee acknowledges and agrees that this\nAgreement, including its provisions on post-employment restrictions, is specifically assignable by Aramark. Employee\nhereby consents to such future assignment and agrees not to challenge the validity of such future assignment.\nIN WITNESS WHEREOF, and intending to be legally bound, the parties hereto have caused this Agreement to\nbe signed this 14th date of March, 2015.\n/s/ Stephen P. Bramlage, Jr. Aramark\nStephen Bramlage, Jr. By: /s/ Lynn B. McKee\n10\nSchedule 1\nPrior Works"\n11\nExhibit A\nAramark\nIncentive Compensation Recoupment Policy\nOverview\nAramark (the “Company”) has adopted this incentive compensation recoupment policy (the “Policy”) in order to\nensure that incentive compensation is paid based on accurate financial data. In the event of an accounting restatement as\ndescribed below the Company may seek recovery of incentive compensation that would have not been paid if the correct\nperformance data had been used to determine the amount payable. The Board of Directors (the “Board”) and the\nCompensation and Human Resources Committee of the Board (the “Committee”) shall have full authority to interpret\nand enforce the Policy.\nCovered Employees\nThe Policy applies to “Covered Employees” who are: the executive officers of the Company and its subsidiaries\n(as defined under Rule 3b-7 under the Securities Exchange Act of 1934, as amended) and all other direct reports of the\nChief Executive Officer of the Company.\nIncentive Compensation\nFor purposes of this Policy, “incentive compensation” means cash performance bonuses and incentive stock\nawards including performance stock units paid, granted, vested or accrued under any Company plan or agreement in the\nform of cash or Company common stock whose payment or vesting is based on the achievement of one or more financial\nmetrics.\nIf the Board or the Committee determines that (i) incentive compensation of a Covered Employee was overpaid,\nin whole or in part, as a result of a restatement of the reported financial or operating results of the Company due to\nmaterial non-compliance with financial reporting requirements under the securities laws (unless due to a change in\naccounting policy or applicable law) and (ii) such Covered Employee has engaged in misconduct that causes or\ncontributed, directly or indirectly, to the non-compliance that resulted in the obligation to restate the Company’s reported\nfinancial or operating results, the Board or the Committee will determine, in its discretion, whether the Company shall,\nto the extent permitted by applicable law, seek to recover or cancel the incentive compensation granted, paid to, issued or\nvested in excess of the incentive compensation that would have been paid or granted to such Covered Employee or the\nincentive compensation in which such Covered Employee would have vested had the actual payment, granting or vesting\nbeen calculated based on the accurate data or restated results, as applicable (the “Overpayment”).\n12\nForms of Recovery\nIf the Board or the Committee determines to seek recovery for the Overpayment, the Company shall have the\nright to demand that the Covered Employee reimburse the Company for the Overpayment. The Board or the Committee\nshall have the discretion to determine the form, amount and timing of any repayment. To the extent the Covered\nEmployee does not make reimbursement of the Overpayment, the Company shall have the right to enforce the repayment\nthrough the reduction or cancellation of outstanding and future incentive compensation and shall also have the right to\nsue for repayment. To the extent any shares have been issued under vested awards or such shares have been sold by the\nCovered Employee, the Company shall have the right to cancel any other outstanding stock-based awards with a value\nequivalent to the Overpayment, as determined by the Board or the Committee.\nTime Period for Overpayment Review\nThe Board or the Committee may make determinations of whether the Company shall seek recovery or\ncancellation of the Overpayment at any time through the end of the third fiscal year following the year for which the\ninaccurate performance criteria were measured; provided, that if steps have been taken within such period to restate the\nCompany’s financial or operating results, the time period shall be extended until such restatement is completed. For\nillustrative purposes only, this means that if incentive compensation is paid in late calendar 2015 for performance metrics\nbased on fiscal year 2015 performance, the compensation shall be subject to review for Overpayment until the end of the\n2018 fiscal year. Notwithstanding the above, if the Board or the Committee determines that any Covered Employee\nengaged in fraud or misconduct, the Board or the Committee shall be entitled to seek recovery or cancellation of the\nOverpayment with respect to such Covered Employee for a period of six years after the act of fraud or misconduct, as\nsuch time period is calculated by the Board or Committee.\n \nNo Additional Payments\nIn no event shall the Company be required to award Covered Employees an additional payment if the restated or\naccurate financial results would have resulted in a higher incentive compensation payment.\nApplicability,\nThis Policy applies to all incentive compensation, granted, paid or credited after February 3, 2015, except to the\nextent prohibited by applicable law or any other legal obligation of the Company. Application of the Policy does not\npreclude the Company from taking any other action to enforce a Covered Employee’s obligations to the Company,\nincluding termination of employment or institution of civil or criminal proceedings or any other remedies that may be\navailable to the Company, including such remedies contained, without limitation, in the Company’s equity grant and\nemployment agreements, whether or not there is a restatement.\nCommittee Determination Final\n13\nAny determination by the Board or the Committee (or by any officer of the Company to whom enforcement\nauthority has been delegated) with respect to this Policy shall be final, conclusive and binding on all interested parties.\nOther Laws\nThe Policy is in addition to (and not in lieu of) any right of repayment, forfeiture or right of offset against any\nCovered Employee that is required pursuant to any statutory repayment requirement implemented at any time prior to or\nfollowing the adoption of the Policy. This policy is in addition to, and is not a substitute for, the requirements of Section\n304 of the Sarbanes-Oxley Act of 2002.\nAmendment; Termination\nThe Board or the Committee may amend or terminate this Policy at any time.\nAdopted on February 3, 2015\n14\nEXHIBIT B\nTERMINATION PROTECTION PROVISIONS\nThis is an Exhibit B to, and forms a part of, the Aramark Agreement Relating to Employment and Post-\nEmployment Competition between Stephen Bramlage, Jr. (the “Executive”) and Aramark.\n1. Defined Terms.\nUnless otherwise indicated, capitalized terms used in this Exhibit which are defined in Schedule A shall\nhave the meanings set forth in Schedule A.\n2. Effective Date; Term.\n \nThis Exhibit shall be effective as of the 6th day of April, 2015 (the “Effective Date) and shall remain in\neffect until the later of three years following a Change of Control and the date that all of the Company’s obligations\nunder this Exhibit have been satisfied in full.\n3. Change of Control Benefits.\nIf Executive’s employment with the Company is terminated at any time within the two years following a\nChange of Control by the Company without Cause, or by Executive for Good Reason (the effective date of either such\ntermination hereafter referred to as the “Termination Date”), Executive shall be entitled to the payments and benefits\nprovided hereafter in this Section 3 and as set forth in this Exhibit. If Executive’s employment by the Company is\nterminated prior to a Change of Control by the Company (i) at the request of a party (other than the Company) involved\nin the Change of Control or (ii) otherwise in connection with or in anticipation of a Change of Control that subsequently\noccurs, Executive shall be entitled to the benefits provided hereafter in this Section 3 and as set forth in this Exhibit, and\nExecutive’s Termination Date shall be deemed to have occurred immediately following the Change of Control. Payment\nof benefits under this Exhibit shall be in lieu of any benefits payable under the Aramark Agreement relating to\nEmployment and Post-Employment Competition of which this Exhibit is a part, except as provided in Section 3(b)\nhereof. Notice of termination without Cause or for Good Reason shall be given in accordance with Section 13, and shall\nindicate the specific termination provision hereunder relied upon, the relevant facts and circumstances and the\nTermination Date.\na. Severance Payments. The Company shall pay Executive cash benefits equal to:\n(1) two times Executive’s Base Salary in effect on the date of the Change of Control or the\nTermination Date, whichever is higher; provided that if any reduction of the Base Salary has occurred, then the Base\nSalary on either date shall be as in effect\n \n15\nimmediately prior to such reduction, payable in regular installments at such times as would otherwise be the Company’s\nusual payroll practice over a period of two years; and\n(2) the higher of: (A) two times Executive’s Target Bonus in effect on the date of the Change of\nControl or the Termination Date, whichever is greater; or (B) two times Executive’s most recent actual annual bonus,\npayable in either case ratably in regular installments at the same time as payments are made to Executive under Section\n3(a)(1) above; provided that if any reduction of the Target Bonus has occurred, then the Target Bonus on either date shall\nbe as in effect immediately prior to such reduction; and\n(3) Executive’s Target Bonus (as determined in (2), above) multiplied by a fraction, the\nnumerator of which shall equal the number of days Executive was employed by the Company in the Company fiscal year\nin which the Termination Date occurs and the denominator of which shall equal 365, payable as a cash lump sum within\nforty days after the Termination Date.\nb. Continuation of Benefits. Until the second anniversary of the Termination Date, the Company shall at\nits expense provide Executive and Executive’s spouse and dependents with medical, life insurance and disability\ncoverages at the level provided to Executive immediately prior to the Change of Control; provided, however, that if\nExecutive becomes employed by a new employer, continuing coverage from the Company will become secondary to any\ncoverage afforded by the new employer. The Company shall also provide the benefits described in Article 6.A.2.b of the\nManagement Committee Agreement (as defined in Section 8 hereof); provided that such benefits shall continue until the\nsecond anniversary of the Termination Date (instead of the “Severance Pay Period” as defined in the Management\nCommittee Agreement).\n \nc. Payment of Earned But Unpaid Amounts. Within forty days after the Termination Date, the Company\nshall pay Executive the Base Salary through the Termination Date, any Bonus earned but unpaid as of the Termination\nDate for any previously completed fiscal year of the Company, to the extent not previously deferred under a particular\ndeferred compensation plan, and reimbursement for any unreimbursed expenses properly incurred by Executive in\naccordance with Company policies prior to the Termination Date. Executive shall also receive such employee benefits, if\nany, to which Executive may be entitled from time to time under the employee benefit or fringe benefit plans, policies or\nprograms of the Company, other than any Company severance policy (payments and benefits in this subsection (c), the\n“Accrued Benefits”).\nd. Outplacement Counseling. For the two-year period following the Termination Date (or, if earlier, the\ndate Executive first obtains full-time employment after the Termination Date), the Company shall reimburse all\nreasonable expenses incurred by Executive for professional outplacement services by qualified consultants selected by\nExecutive, in an amount not to exceed 20% of the Executive’s Base Salary in effect on the date of the Change of Control\nor the Termination Date, whichever is higher. All such reimbursement payments shall be made prior to the last day of the\nsecond calendar year following the calendar year in which the Termination Date occurs.\n16\ne. Vesting of Other Benefits. Executive shall be entitled to such accelerated vesting of outstanding\nequity-based awards or retirement plan benefits as is specified under the terms of the applicable plans, agreements and\narrangements.\n4. Mitigation.\nExecutive shall not be required to mitigate damages or the amount of any payment provided for under this\nExhibit by seeking other employment or otherwise, and, subject to Section 3(b), compensation earned from such\nemployment or otherwise shall not reduce the amounts otherwise payable under this Exhibit. No amounts payable under\nthis Exhibit shall be subject to reduction or offset in respect of any claims which the Company (or any other person or\nentity) may have against Executive.\n5. Excise Tax Consequences.\n \na. In the event it shall be determined that any payment, benefit or distribution (or combination thereof)\nby the Company, any of its affiliates, or one or more trusts established by the Company for the benefit of its employees,\nto or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this\nExhibit, or otherwise) (a “Payment”) is subject to the excise tax imposed by Section 4999 of the Code or any interest or\npenalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and\npenalties, hereinafter collectively referred to as the “Excise Tax”), if the net after-tax amount of such Payments, after\nExecutive has paid all taxes due thereon (including, without limitation, taxes due under Section 4999 of the Code) is less\nthan the net after-tax amount of all such Payments and benefits otherwise due to Executive in the aggregate, if such\naggregate Payments were reduced to an amount equal to 2.99 times the Executive’s “base amount” (as defined in Section\n280G(b)(3) of the Code), then the aggregate amount of the payments and benefits shall be reduced to an amount that will\nequal 2.99 times the Executive’s base amount. To the extent such aggregate parachute payment amounts are required to\nbe so reduced, the parachute payment amounts due to the Executive (but no non-parachute payment amounts) shall be\nreduced in the following order: (i) payments and benefits due under Section 3.a of this Exhibit shall be reduced (if\nnecessary, to zero) with amounts that are payable last reduced first; (ii) payments and benefits due in respect of any\nequity fully valued (without regard to any discounts for present value) for purposes of the calculation to be made under\nSection 280G of the Code for purposes of this Section 5 (the “280G Calculation™) in reverse order of when payable; and\n(iii) payments and benefits due in respect of any options or stock appreciation rights with regard to Holdings equity\nsecurities valued under the 280G Calculation based on time of vesting shall be reduced in an order that is most beneficial\nto the Executive.\nb. All determinations required to be made under this Section 5, including whether and when a cutback is\nto be made, and the assumptions to be utilized in arriving at such determination, shall be made by such nationally\nrecognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”) which shall\nprovide detailed supporting calculations both to the Company and Executive within ten business days of the receipt of\nnotice from Executive that there has been a Payment, or such earlier time as is requested by the Company.\n17\nc. Notwithstanding anything contained in this Agreement or any other agreement between the Executive\nand the Company or any of its subsidiaries to the contrary, the Executive and the Company shall in good faith attempt to\nagree on steps to ensure that no payments to which the Executive would otherwise be entitled to receive pursuant to this\nAgreement or any such other agreement will be “parachute payments” (as defined in Section 280G(b)(2) of the Code).\n6. Termination for Cause.\nNothing in this Exhibit shall be construed to prevent the Company from terminating Executive’s\nemployment for Cause. If Executive is terminated for Cause, the Company shall have no obligation to make any\npayments under this Exhibit, except for the Accrued Benefits.\n7. Indemnification; Director’s and Officer’s Liability Insurance.\nExecutive shall, after the Termination Date, retain all rights to indemnification under applicable law, any\nagreements, (including without limitation, the Stockholders Agreement), or under the Company’s Certificate of\nIncorporation or By-Laws, as they may be amended or restated from time to time. In addition, the Company shall\nmaintain Director’s and Officer’s liability insurance on behalf of Executive, at the level in effect immediately prior to the\nTermination Date, for the three year period following the Termination Date, and throughout the period of any applicable\nstatute of limitations.\n8. Executive Covenants.\nThis is an Exhibit B to, and forms a part of, the Aramark Agreement Relating to Employment and Post-\nEmployment Competition between Executive and Aramark (the “Management Committee Agreement”). This Exhibit\nshall not diminish in any way Executive’s rights under the terms of such Management Committee Agreement, except\nthat Executive’s receipt of benefits under this Exhibit is contingent upon Executive’s compliance in all material respects\nwith all of the terms and conditions of the Management Committee Agreement.\n9. Costs of Proceedings.\nEach party shall pay its own costs and expenses in connection with any legal proceeding (including\narbitration), relating to the interpretation or enforcement of any provision of this Exhibit, except that the Company shall\npay such costs and expenses, including attorneys’ fees and disbursements, of Executive if Executive prevails on a\nsubstantial portion of the claims in such proceeding.\n10. Assignment.\nExcept as otherwise provided herein, this Exhibit shall be binding upon, inure to the benefit of and be\nenforceable by the Company and Executive and their respective heirs, legal representatives, successors and assigns. If\nthe Company shall be merged into or consolidated\n18\nwith another entity, the provisions of this Exhibit shall be binding upon and inure to the benefit of the entity surviving\nsuch merger or resulting from such consolidation. The Company shall require any successor (whether direct or indirect,\nby purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company, by\nagreement, expressly to assume and agree to perform this Exhibit in the same manner and to the same extent that the\nCompany would be required to perform it if no such succession had taken place. The provisions of this Section 10 shall\ncontinue to apply to each subsequent employer of Executive hereunder in the event of any subsequent merger,\nconsolidation or transfer of assets of such subsequent employer.\n11. Withholding.\nNotwithstanding any other provision of this Exhibit, the Company may, to the extent required by law,\nwithhold applicable federal, state and local income and other taxes from any payments due to Executive hereunder.\n12. Applicable Law.\nThis Exhibit shall be governed by and construed in accordance with the laws of the Commonwealth of\nPennsylvania, without regard to conflicts of laws principles thereof.\n13. Notice.\nFor the purpose of this Exhibit, any notice and all other communication provided for in this Exhibit shall\nbe in writing and shall be deemed to have been duly given when delivered by hand or overnight courier or three days\nafter it has been mailed by United States registered mail, return receipt requested, postage prepaid, addressed to the\nrespective addresses set forth below, or to such other address as either party may have furnished to the other in writing in\naccordance herewith, except that notice of change of address shall be effective only upon receipt.\nIf to the Company:\nAramark\nAramark Tower\n1101 Market Street\nPhiladelphia, Pennsylvania 19107\nAttention: General Counsel\nIf to Executive:\nTo the most recent address of Executive set forth in the personnel records of the Company.\n14. Entire Agreement; Modification.\n \n \n19\nThis Exhibit constitutes the entire agreement between the parties and, except as expressly provided herein\nor in Article 6.E of the Management Committee Agreement or in any benefit plan of the Company or of any of its\naffiliates, supersedes all other prior agreements expressly concerning the effect of a Change of Control occurring after\nthe date of this Agreement with respect to the relationship between the Company and Executive. This Exhibit is not, and\nnothing herein shall be deemed to create, a contract of employment between the Company and Executive. This Exhibit\nmay be changed only by a written agreement executed by the Company and Executive.\n15. Severability.\nIn the event any one or more of the provisions of this Exhibit shall be or become invalid, illegal or\nunenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected\nthereby.\n20\nSchedule A\nCERTAIN DEFINITIONS\nAs used in this Exhibit, and unless the context requires a different meaning, the following terms, when\ncapitalized, have the meaning indicated:\n1. “Act” means the Securities Exchange Act of 1934, as amended.\n2. “Affiliate” shall have the meaning set forth in the Stockholders Agreement.\n3. “Base Salary” means Executive’s annual rate of base salary in effect on the date in question.\n4. “Bonus” means the amount payable to Executive under the Company’s applicable annual bonus plan with\nrespect to a fiscal year of the Company.\n5. “Cause” means “cause” as defined in the Management Committee Agreement of which this Schedule A\nforms a part.\n6. “Change of Control” means the first to occur of any of the following:\n(i) The acquisition by any individual entity or group, within the meaning of Section 13(d)(3) or 14(d)(2)\nof the Exchange Act, other than the Investor Groups and their Affiliates (the “Permitted Holders”), directly or indirectly,\nof beneficial ownership of equity securities of the Company representing more than 50% of the voting power of the then-\noutstanding equity securities of the Company entitled to vote generally in the election of directors (the “Company Voting\nSecurities”); provided, however, that for purposes of this subsection (i), the following shall not constitute a Change of\nControl: (A) any acquisition by the Company or any Sponsor Stockholder, (B) any acquisition by any employee benefit\nplan (or related trust) sponsored or maintained by the Company or any Subsidiary, or (C) any acquisition by any Person\npursuant to a transaction which complies with clauses (A) and (B) of subsection (ii) below; or\n \n(ii) The consummation of a reorganization, merger or consolidation or sale or other disposition of all or\nsubstantially all of the assets of the Company or the purchase of assets or stock of another entity (a “Business\nCombination”), in each case, unless immediately following such Business Combination, (A) all or substantially all of the\nbeneficial owners of the Company Voting Securities immediately prior to such Business Combination beneficially own\nmore than 50% of the then-outstanding combined voting power of the then-outstanding securities entitled to vote\ngenerally in the election of directors of the entity resulting from such Business Combination in substantially the same\nproportion (relative to each other) as their ownership immediately prior to such Business Combination of the Company\nVoting Securities, and (B) no Person (excluding the Permitted Holders) beneficially owns, directly or indirectly, more\nthan a majority of the combined voting power of the then-outstanding voting securities of such entity\n21\nexcept to the extent that such ownership of the Company existed prior to the Business Combination; or\n(iii) A majority of the members of the Company’s Board of Directors are replaced during any 12-month\nperiod by directors whose appointment or election is not endorsed by a majority of the current members of the\nCompany’s Board of Directors before such replacement or is not contemplated by the Stockholders Agreement as in\neffect on the date hereof.\nNotwithstanding paragraphs (i) through (iii) above, in no event will a Change of Control be deemed to\noccur if the Permitted Holders maintain a direct or indirect Controlling Interest in the Company. A “Controlling Interest”\nin an entity shall mean beneficial ownership of more than 50% of the voting power of the outstanding equity securities of\nthe entity.\n7. “Code” means the Internal Revenue Code of 1986, as amended.\n \n8. “Company” means Aramark or any of its parents and any successor or successors thereto.\n9. “Good Reason” means any of the following actions on or after a Change of Control, without Executive’s\nexpress prior written approval, other than due to Executive’s Permanent Disability or death:\n(a) any decrease in Base Salary or Target Bonus;\n(b) any decrease in Executive’s pension benefit opportunities or any material diminution in the\naggregate employee benefits, in each case, afforded to the Executive immediately prior to the Change of Control, but not\nincluding any such decrease or diminution that is inadvertent and that is cured within 30 days following written notice of\nsuch decrease or diminution by Executive to the Company;\n(c) any diminution in Executive’s title or reporting relationship, or substantial diminution in duties or\nresponsibilities (other than solely as a result of a Change of Control in which the Company immediately thereafter is no\nlonger publicly held); or\n(d) any relocation of Executive’s principal place of business of 35 miles or more, other than normal\ntravel consistent with past practice.\nExecutive shall have twelve months from the time Executive first becomes aware of the existence\nof Good Reason to resign for Good Reason.\nThe Executive must provide notice to the Company of the existence of the condition described above within a period not\nto exceed 90 days of the initial existence of the condition, upon the notice of which the Company shall have a period of\n30 days during which it may remedy the condition and not be required to pay the amount.\n22\n10. “Permanent Disability” means “permanent disability” as defined in the Company’s long-term disability plan\nas in effect from time to time, or if there shall be no plan, the inability of Executive to perform in all material respects\nExecutive’s duties and responsibilities to the Company or any affiliate for a period of six (6) consecutive months or for\nan aggregate of nine (9) months in any twenty-four (24) consecutive month period by reason of a physical or mental\nincapacity.\n11. “Permitted Holder” shall have the same meaning as set forth in the Stockholders Agreement.\n12. “Target Bonus” means the target Bonus established for Executive in respect of any given year, whether\nexpressed as a percentage of Base Salary or a dollar amount.\n23	EX-10.2 3 x102elcagreement.htm EXHIBIT 10.2\nExhibit 10.2\nARAMARK AGREEMENT RELATING TO EMPLOYMENT AND\nPOST-EMPLOYMENT COMPETITION\nThis Agreement is between the undersigned individual ("Employee") and Aramark.\nRECITALS\nWHEREAS, Aramark is a leading provider of managed services to business and industry, private and public\ninstitutions, and the general public, in the following business groups: food and support services and uniform and career\napparel;\nWHEREAS, Aramark has a proprietary interest in its business and financial plans and systems, methods of\noperation and other secret and confidential information, knowledge and data ("Proprietary Information") which includes,\nbut is not limited to, all confidential, proprietary or non-public information, ideas and concepts; annual and strategic\nbusiness plans; financial plans, reports and systems including, profit and loss statements, sales, accounting forms and\nprocedures and other information regarding costs, pricing and the financial condition of Aramark and its business\nsegments and groups; management development reviews, including information regarding the capabilities and\nexperience of Aramark employees; intellectual property, including patents, inventions, discoveries, research and\ndevelopment, compounds, recipes, formulae, reports, protocols, computer software and databases; information regarding\nAramark's relationships with its clients, customers, and suppliers and prospective clients, partners, customers and\nsuppliers; policy and procedure manuals, information regarding materials and documents in any form or medium\n(including oral, written, tangible, intangible, or electronic) concerning any of the above, or any past, current or future\nbusiness activities of Aramark that is not publicly available; compensation, recruiting and training, and human resource\npolicies and procedures; and data compilations, research, reports, structures, compounds, techniques, methods,\nprocesses, and know-how;\nWHEREAS, all such Proprietary Information is developed at great expense to Aramark and is considered by\nAramark to be confidential trade secrets;\nWHEREAS, Employee, as a senior manager, will have access to Aramark's Proprietary Information, directly in\nthe course of Employee's employment, and indirectly through interaction with and presentations by other Aramark\nsenior managers at the Executive Leadership Institute, Executive Leadership Council meetings, Presidents' Council\nmeetings and the like;\nWHEREAS, Aramark will introduce Employee to Aramark clients, customers, suppliers and others, and will\nencourage, and provide resources for, Employee to develop professional relationships with Aramark's clients, customers,\nsuppliers and others;\nWHEREAS, Aramark will provide specialized training and skills to Employee in connection with the\nperformance of Employee's duties at Aramark which training involves the disclosure by Aramark to Employee of\nProprietary Information;\nWHEREAS, Aramark will be vulnerable to unfair post-employment competition by Employee because\nEmployee will have access to and knowledge of Aramark's Proprietary Information, will have a personal relationship\nwith Aramark's clients, customers, suppliers and others, and will generate good will which Employee acknowledges\nbelongs to Aramark;\nNOW, THEREFORE, in consideration of Employee's employment with Aramark, the opportunity to receive the\ngrant of options to purchase common stock of Aramark, severance and other post-employment benefits provided for\nherein (including pursuant to Exhibit B hereto to which Employee acknowledges Employee is not otherwise entitled),\nand for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Employee\nagrees to enter into this Agreement with Aramark as a condition of employment pursuant to which Aramark will limit\nEmployee's right to compete against Aramark during and following termination of employment on the terms set forth in\nthis Agreement. Intending to be legally bound, the parties agree as follows:\nARTICLE 1\nNON-DISCLOSURE AND NON-DISPARAGEMENT\nEmployee shall not, during or after termination of employment, directly or indirectly, in any manner utilize or\ndisclose to any person, firm, corporation, association or other entity, except where required by law, any Proprietary\nInformation which is not generally known to the public, or has not otherwise been disclosed or recognized as standard\npractice in the industries in which Aramark is engaged. Employee shall, during and after termination of employment,\nrefrain\nfrom\nmaking\nany\nstatements\nor\ncomments\nof\na\ndefamatory\nor\ndisparaging\nnature\nto\nany\nthird\nparty\nregarding\nAramark, or any of Aramark's officers, directors, personnel, policies or products, other than to comply with law.\nARTICLE 2\nNON-COMPETITION\nA. Subject to Article 2. B. below, Employee, during Employee's period of employment with Aramark, and for a\nperiod of two years following the voluntary or involuntary termination of employment, shall not, without Aramark's\nwritten permission, which shall be granted or denied in Aramark's sole discretion, directly or indirectly, associate with\n(including, but not limited to, association as a sole proprietor, owner, employer, partner, principal, investor, joint\nventurer, shareholder, associate, employee, member, consultant, contractor or otherwise), or acquire or maintain\nownership interest in, any Business which is competitive with that conducted by or developed for later implementation\nby Aramark at any time during the term of Employee's employment, provided however, if Employee's employment\nis\ninvoluntarily terminated by Aramark for any reason other than Cause (as defined herein), or (ii) terminated by Employee\nfor Good Reason (as defined in Exhibit B) at any time following a Change of Control (as defined in Exhibit B) occurring\nafter the date of this Agreement, then the term of the non-competition provision set forth herein will be modified to be\neighteen months following such termination of employment. For purposes of this Agreement, "Business" shall be\ndefined as a person, corporation, firm, LLC, partnership, joint venture or other entity. Nothing in the foregoing shall\n2\nprevent Employee from investing in a Business that is or becomes publicly traded, if Employee's ownership is as a\npassive investor of less than 1% of the outstanding publicly traded stock of the Business.\nB. The provision set forth in Article 2.A above, shall apply to the full extent permitted by law (i) in all fifty\nstates, and (ii) each foreign country, possession or territory in which Aramark may be engaged in, or have plans to\nengage in, business (x) during Employee's period of employment, or (y) in the case of a termination of employment, as\nof the effective date of such termination or at any time during the twenty-four month period prior thereto.\nC. Employee acknowledges that these restrictions are reasonable and necessary to protect the business interests\nof Aramark, and that enforcement of the provisions set forth in this Article 2 will not unnecessarily or unreasonably\nimpair Employee's ability to obtain other employment following the termination (voluntary or involuntary) of\nEmployee's employment with Aramark. Further, Employee acknowledges that the provisions set forth in this Article 2\nshall apply if Employee's employment is involuntarily terminated by Aramark for Cause; as a result of the elimination of\nemployee's position; for performance-related issues; or for any other reason or no reason at all.\nARTICLE 3\nNON-SOLICITATION\nDuring the period of Employee's employment with Aramark and for a period of two years following the\ntermination of Employee's employment, regardless of the reason for termination, Employee shall not, directly or\nindirectly: (i) induce or encourage any employee of Aramark to leave the employ of Aramark, (ii) hire any individual\nwho was an employee of Aramark as of the date of Employee's termination of employment or within a six month period\nprior to such date, or (iii) induce or encourage any customer, client, supplier or other business relation of Aramark to\ncease or reduce doing business with Aramark or in any way interfere with the relationship between any such customer,\nclient, supplier or other business relation and Aramark.\nARTICLE 4\nDISCOVERIES AND WORKS\nEmployee hereby irrevocably assigns, transfers, and conveys to Aramark to the maximum extent permitted by\napplicable\nlaw\nEmployee's\nright,\ntitle\nand\ninterest\nnow\nor\nhereinafter\nacquired,\nin\nand\nto\nall\nDiscoveries\nand\nWorks\n(as\ndefined below) created, invented, designed, developed, improved or contributed to by Employee, either alone or jointly\nwith others, while employed by Aramark and within the scope of Employee's employment and/or with the use of\nAramark's resources. The terms "Discoveries and Works" include all works of authorship, inventions, intellectual\nproperty, materials, documents, or other work product (including, without limitation, Proprietary Information, patents\nand patent applications, patentable inventions, research, reports, software, code, databases, systems, applications,\npresentations, textual works, graphics and audiovisual materials). Employee shall have the burden of proving that any\nmaterials or works created, invented, designed, developed, contributed to or improved by\n3\nEmployee that are implicated by or relevant to employment by Aramark are not implicated by this provision. Employee\nagrees to (i) keep accurate records and promptly notify, make full disclosure to, and execute and deliver any documents\nand to take any further actions requested by Aramark to assist it in validating, effectuating, maintaining, protecting,\nenforcing, perfecting, recording, patenting or registering any of its rights hereunder, and (ii) renounce any and all claims,\nincluding, without limitation, claims of ownership and royalty, with respect to all Discoveries and Works and all other\nproperty\nowned\nor\nlicensed\nby\nAramark.\nAny\nDiscoveries\nand\nWorks\nthat,\nwithin\nsix\nmonths\nafter\nthe\ntermination\nof\nEmployee's employment with Aramark, are made, disclosed, reduced to a tangible or written form or description, or are\nreduced to practice by Employee and which pertain to the business carried on or products or services being sold or\ndeveloped by Aramark at the time of such termination shall, as between Employee and Aramark, be presumed to have\nbeen made during such employment with Aramark. Employee acknowledges that, to the fullest extent permitted by law,\nall Discoveries and Works shall be deemed "works made for hire" under the Copyright Act of 1976, as amended, 17\nU.S.C. Section 101. Employee hereby grants Aramark a perpetual, nonexclusive, royalty-free, worldwide, assignable,\nsublicensable license under all rights and intellectual property rights (including patent, industrial property, copyright,\ntrademark, trade secret, unfair competition and related laws) in any Works and Discoveries, for all purposes in\nconnection with Aramark's current and future business, that Employee has created, invented, designed, developed,\nimproved or contributed to prior to Employee's employment with Aramark that are relevant to or implicated by such\nemployment ("Prior Works"). Any Prior Works are disclosed by Employee in Schedule 1.\nARTICLE 5\nREMEDIES\nEmployee acknowledges that in the event of any violation by Employee of the provisions set forth in Articles 1,\n2,\n3 or 4 above, Aramark will sustain serious, irreparable and substantial harm to its business, the extent of which will be\ndifficult to determine and impossible to fully remedy by an action at law for money damages. Accordingly, Employee\nagrees that, in the event of such violation or threatened violation by Employee, Aramark shall be entitled to an injunction\nbefore trial before any court of competent jurisdiction as a matter of course upon the posting of not more than a nominal\nbond, in addition to all such other legal and equitable remedies as may be available to Aramark. If Aramark is required\nto enforce the provisions set forth in Articles 2 and 3 above by seeking an injunction, Employee agrees that the relevant\ntime periods set forth in Articles 2 and 3 shall commence with the entry of the injunction. Employee further agrees that,\nin the event any of the provisions of this Agreement are determined by a court of competent jurisdiction to be invalid,\nillegal, or for any reason unenforceable as written, such court shall substitute a valid provision which most closely\napproximates the intent and purpose of the invalid provision and which would be enforceable to the maximum extent\npermitted by law.\nARTICLE 6\nPOST-EMPLOYMENT BENEFITS\n4\nA. If Employee's employment is terminated by Aramark for any reason other than Cause, Employee shall be\nentitled to the following post-employment benefits:\n1. Severance Pay: Employee shall receive severance payments equivalent to Employee's monthly base\nsalary as of the effective date of termination for twelve (12) months, should the Employee have less than one (1) year of\ncontinuous service with Aramark completed from the date of hire; and for eighteen (18) months, should the Employee\nhave one (1) year or more of continuous service with Aramark completed from the date of hire. Severance payments\nshall commence with the Employee's effective date of termination and shall be made in accordance with Aramark's\nnormal payroll cycle. The period during which Employee receives severance payments shall be referred to as the\n"Severance Pay Period."\n2. Other Post-Employment Benefits\n(a) Basic Group medical and life insurance coverages shall continue under then prevailing terms\nduring the Severance Pay Period; provided, however, that if Employee becomes employed by a new employer during\nthat period, continuing coverage from Aramark will become secondary to any coverage afforded by the new employer.\nEmployee's share of the premiums will be deducted from Employee's severance payments. Basic Group medical\ncoverage provided during such period shall be applied against Aramark's obligation to continue group medical coverage\nunder the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"). Upon termination of basic group\nmedical and life coverages, Employee may convert such coverages to individual policies to the extent allowable under\nthe terms of the plans providing such coverages.\n(b) If, at the time of termination, Aramark is providing Employee with a leased vehicle, then\nAramark will continue to provide the leased vehicle through the Severance Pay Period under the same terms and\nconditions as in effect at the time of the Employee's termination. At the expiration of the Severance Pay Period,\nEmployee must return the leased vehicle to Aramark unless the Employee elects to purchase the vehicle in accordance\nwith the Executive Leadership Council policy then in effect. If Employee is receiving a car allowance at the time of the\nEmployee's termination, such car allowance will continue to be paid through the Severance Pay Period. At the expiration\nof the Severance Pay Period, the Employee will cease being paid a car allowance.\n(c) Employee's eligibility to participate in all other benefit and compensation plans, including,\nbut not limited to the Management Incentive Bonus, Long Term Disability, any nonqualified retirement plans, and any\nstock option or ownership plans, shall terminate as of the effective date of Employee's termination unless provided\notherwise under the terms of a particular plan, provided, however, that participation in plans and programs made\navailable solely to Executive Leadership Council members, including, but not limited to the Executive Leadership\nCouncil Medical Plan, shall cease as of the effective date of termination or the date Employee's Executive Leadership\nCommittee membership ceases, whichever occurs\n5\nfirst. Employee, however, shall have certain rights to continue the Executive Leadership Council Medical Plan under\nCOBRA.\nB. Termination for "Cause" shall be defined as termination of employment due to: (i) conviction or plea of\nguilty or nolo contendere to a felony, (ii) intentional fraud or dishonesty with respect to Aramark that causes material and\ndemonstrable harm to Aramark, (iii) willful and continuous failure to perform lawfully assigned duties that are consistent\nwith the Employee's position with Aramark, (iv) willful violation of Aramark's Business Conduct Policy that causes\nmaterial harm to Aramark or its business reputation, or (v) intentionally working against the best interests of Aramark; in\nany case of conduct described in clause (ii)-(v), only if such conduct continues beyond ten business days after receipt by\nthe Employee from Aramark of a written demand to cure such conduct.\nC. If Employee is terminated by Aramark for reasons other than Cause, Employee will receive the severance\npayments and other post-employment benefits during the Severance Pay Period even if Employee commences other\nemployment during such period provided such employment does not violate the terms of Article 2, and subject to the\nprovisions of Article 6.E.\nNotwithstanding anything else contained in this Article 6 to the contrary, Aramark may choose not to commence\n(or to discontinue) providing any payment or benefit unless and until Employee executes and delivers, without\nrevocation, a release in form reasonably acceptable to Aramark, as described in Article 6.E within 60 days following\nEmployee's termination of employment; provided, however, that subject to receipt of such executed release, Aramark\nshall commence providing such payments and benefits within 75 days following the date of termination of Employee's\nemployment.\nD. In addition to the remedies set forth in Article 5, Aramark reserves the right to terminate all severance\npayments and other post-employment benefits if Employee violates the covenants set forth in Articles 1, 2, 3 or 4 above\nin any material respect.\nE. Employee's receipt of severance and other post-employmen benefits under this Agreement is contingent on\n(i)\nEmployee's execution of a release in a form reasonably acceptable to Aramark, except that such release shall not\ninclude any claims by Employee to enforce Employee's rights under, or with respect to, (1) this Agreement (including\nthe\nattached\nExhibit\nB),\n(2)\nthe\nCertificate\nof\nIncorporation\nand\nBy-laws\nof\nAramark,\n(3)\nany\nindemnification\nagreement\nbetween the Employee and Aramark, (4) any Stockholders Agreement among Aramark and the holders party thereto (the\n"Stockholders Agreement") and any other agreement referenced therein, or (5) any Aramark benefit plan pursuant to its\nterms, and (ii) the expiration of the applicable Age Discrimination in Employment Act revocation period without such\nrelease being revoked by Employee.\nARTICLE 7\nTERM OF EMPLOYMENT\nEmployee acknowledges that Aramark has the right to terminate Employee's employment at any time for any\nreason whatsoever, provided, however, that any termination by Aramark for\n6\nreasons other than Cause shall result in the severance and the post-employment benefits described in Article 6 above, to\nbecome due in accordance with the terms of this Agreement subject to the conditions set forth in this Agreement.\nEmployee further acknowledges that the severance payments made and other benefits provided by Aramark are in full\nsatisfaction of any obligations Aramark may have resulting from Aramark's exercise of its right to terminate Employee's\nemployment, except for those obligations which are intended to survive termination such as the payments to be made\npursuant to retirement plans, deferred compensation plans, conversion of insurance, and the plans and other documents\nand agreements referred to in Article 6.E above.\nARTICLE 8\nMISCELLANEOUS\nA. As used throughout this Agreement, Aramark includes Aramark and its subsidiaries and affiliates or any\ncorporation, joint venture, or other entity in which Aramark or its subsidiaries or affiliates has an equity interest in excess\nof ten percent (10%).\nB. Notwithstanding anything to the contrary contained herein, Employee shall, after termination of employment\nfor Good Reason by Employee or other than for Cause by Aramark, retain all rights to indemnification under applicable\nlaw or any agreement (including, without limitation, the Stockholders Agreement), or under Aramark's or any parent\ncorporation's Certificate of Incorporation or By-Laws at a level that is at least as favorable to the Employee as that\ncurrently provided In addition, the Company shall maintain Director's and Officer's liability insurance on behalf of\nEmployee, at the level in effect immediately prior to such date of termination, for the three-year period following the\ndate of termination, and throughout the period of any applicable statute of limitations.\nC. In the event that it is reasonably determined by Aramark that, as a result of the deferred compensation tax\nrules under Section 409A of the Internal Revenue Code of 1986, as amended (and any related regulations or other\npronouncements thereunder) ("the Deferred Compensation Tax Rules"), any of the payments and benefits that Employee\nis entitled to under the terms of this Agreement (including under Exhibit B) may not be made at the time contemplated\nby the terms hereof or thereof, as the case may be, without causing Employee to be subject to tax under the Deferred\nCompensation Tax Rules, Aramark shall, in lieu of providing such payment or benefit when otherwise due under this\nAgreement, instead provide such payment or benefit on the first day on which such provision would not result in\nEmployee incurring any tax liability under the Deferred Compensation Tax Rules; which day, if Employee is a "specified\nemployee" within the meaning of the Deferred Compensation Tax Rules, shall be the first day of the seventh month\nfollowing the date of Employee's termination of employment (or the earliest date as is permitted under the Deferred\nCompensation Tax Rules, without any accelerated or additional tax); provided, further, that to the extent that the amount\nof payments due under Article 6.A (or Exhibit B, as applicable) are not subject to the Deferred Compensation Tax Rules\nby virtue of the application of Treas. Reg. Sec. 1.409A-1(b)(9)(iii)(A), such payments may be made prior to the\nexpiration of such six-month period. In addition, if the commencement of any payment or benefit provided under Article\n6 that constitutes "deferred compensation"\n7\nunder the Deferred Compensation Tax Rules could, by application of the terms conditioning such payment or benefit\nupon the execution and non-revocation of a release set forth in Article 6, occur in one of two taxable years, then the\ncommencement of such payment shall begin on the first payroll date occurring in January of such second taxable year.\nTo the extent any reimbursements or in-kind benefits due to Employee under this Agreement constitute "deferred\ncompensation" under the Deferred Compensation Tax Rules, any such reimbursements or in-kind benefits shall be paid\nto Employee in a manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv). Additionally, to the extent that\nEmployee's receipt of any in-kind benefits from Aramark or its affiliates must be delayed pursuant to this Section due to\nEmployee's status as a "specified employee," Employee may elect to instead purchase and receive such benefits during\nthe period in which the provision of benefits would otherwise be delayed by paying the Aramark (or its affiliates) for\nthe\nfair market value of such benefits (as determined by Aramark in good faith) during such period. Any amounts paid by\nEmployee\npursuant\nto\nthe\npreceding\nsentence\nshall\nbe\nreimbursed\nto\nEmployee\n(with\ninterest\nthereon)\nas\ndescribed\nabove\non the date that is the first day of the seventh month following Employee's separation from service. In the event that\nany\npayments or benefits that Aramark would otherwise be required to provide under this Agreement cannot be provided in\nthe manner contemplated herein without subjecting Employee to tax under the Deferred Compensation Tax Rules,\nAramark shall provide such intended payments or benefits to Employee in an alternative manner that conveys an\nequivalent economic benefit to Employee as soon as practicable as may otherwise be permitted under the Deferred\nCompensation Tax Rules. Without limiting the generality of the foregoing, Employee may notify Aramark if he believes\nthat any provision of this Agreement (or of any award of compensation including equity compensation or benefits)\nwould cause Employee to incur any additional tax under Section 409A and, if Aramark concurs with such belief after\ngood faith review or Aramark independently makes such determination, Aramark shall, after consulting with Employee,\nuse reasonable best efforts to reform such provision to comply with Section 409A through good faith modifications to\nthe minimum extent reasonably appropriate to conform the Deferred Compensation Tax Rules; provided that neither\nAramark nor any of its employees or representatives shall have any liability to Employee with respect thereto. For\npurposes of the Deferred Compensation Tax Rules, each payment made under this Agreement (including, without\nlimitation, each installment payment due under Article 6.A and Exhibit B, as applicable) shall be designated as\na\n"separate payment" within the meaning of the Deferred Compensation Tax Rules, and references herein to Employee's\n"termination of employment" shall refer to Employee's separation from service with Aramark and its affiliates within the\nmeaning of the Deferred Compensation Tax Rules.\nD. In the event of a Change of Control as defined in the attached Exhibit B, the provisions of Exhibit B shall\napply to Employee. Further, pursuant to the Deferred Compensation Tax Rules, Aramark, in its discretion, is permitted to\naccelerate the time and form of payments provided under the deferred compensation arrangement set forth in this\nAgreement (including Exhibit B), where the right to the payment arises due to a termination of the arrangement within\nthe 30 days preceding or the 12 months following a change in control event (as defined in the Deferred Compensation\nTax Rules).\n8\nE. If Employee's employment with Aramark terminates solely by reason of a transfer of stock or assets of, or a\nmerger or other disposition of, a subsidiary of Aramark (whether direct or indirect), such termination shall not be\ndeemed a termination of employment by Aramark for purposes of this Agreement, provided that Aramark requires the\nsubsequent employer, by agreement, to expressly assume and agree to perform this Agreement in the same manner and\nto the same extent that Aramark would be required to perform it if no such transaction had taken place. In such case,\nEmployee acknowledges and agrees that Aramark may assign this Agreement and Aramark's rights hereunder, and\nparticularly Articles 1, 2, 3 and 4, in its sole discretion and without advance approval by Employee. In such case,\nEmployee agrees that Aramark may assign this Agreement and all references to "Aramark" contained in this Agreement\nshall thereafter be deemed to refer to the subsequent employer.\nF. Employee shall not be required to mitigate damages or the amount of any payment provided for under this\nAgreement by seeking other employment or otherwise.\nG. This Agreement shall supersede and substitute for any previous post-employment or severance agreement\nbetween Employee and Aramark.\nH. In the event any one or more of the provisions of this Agreement shall be or become invalid, illegal or\nunenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall\nnot be affected thereby.\nI. The terms of this Agreement shall be governed by the laws of the Commonwealth of Pennsylvania, without\nregard to conflicts of laws principles thereof. For purposes of any action or proceeding, Employee irrevocably submits to\nthe non-exclusive jurisdiction of the courts of Pennsylvania and the courts of the United States of America located in\nPennsylvania for the purpose of any judicial proceeding arising out of or relating to this Agreement, and acknowledges\nthat the designated fora have a reasonable relation to the Agreement and to the parties' relationship with one another.\nNotwithstanding\nthe\nprovisions\nof\nthis\nArticle\n8.I,\nAramark\nmay,\nin\nits\ndiscretion,\nbring\nan\naction\nor\nspecial\nproceeding\nin any court of competent jurisdiction for the purpose of seeking temporary or preliminary relief pending resolution of a\ndispute.\nJ. Employee expressly consents to the application of Article 8.I to any judicial action or proceeding arising out\nof\nor\nrelating\nto\nthis\nAgreement.\nAramark\nshall\nhave\nthe\nright\nto\nserve\nlegal\nprocess\nupon\nEmployee\nin\nany\nmanner\npermitted by law. In addition, Employee irrevocably appoints the Executive Vice President, Human Resources of\nAramark (or any successor) as Employee's agent for service of legal process in connection with any such action or\nproceeding and Employee agrees that service of legal process upon such agent, who shall promptly advise Employee of\nany such service of legal process at the address of Employee then in the records of Aramark, shall be deemed in every\nrespect effective service of legal process upon Employee in any such action or proceeding.\nK. Employee hereby waives, to the fullest extent permitted by applicable law, any objection that Employee now\nor\nhereafter may have to personal jurisdiction or to the laying of venue of any action or proceeding brought in any court\nreferenced in Article 8.I and hereby agrees not to plead or claim the same.\n9\nL. Notwithstanding any other provision of this Agreement, Aramark may, to the extent required by law,\nwithhold applicable federal, state and local income and other taxes from any payments due to Employee hereunder.\nM. Employee and Aramark acknowledge that for purposes of Article 6, Employee's last hire date with Aramark\nis April 6, 2015.\nN. Employee expressly acknowledges and agrees that the Incentive Compensation Recoupment Policy set forth\nin Exhibit to this Agreement is binding on Employee and that Employee is a Covered Employee as defined in that policy\nO. This Agreement shall be binding upon, inure to the benefit of and be enforceable by Aramark and Employee,\nand their respective heirs, legal representatives, successors and assigns. Employee acknowledges and agrees that this\nAgreement, including its provisions on post-employment restrictions, is specifically assignable by Aramark. Employee\nhereby consents to such future assignment and agrees not to challenge the validity of such future assignment.\nIN WITNESS WHEREOF, and intending to be legally bound, the parties hereto have caused this Agreement to\nbe signed this 14th date of March, 2015.\n/s/ Stephen P. Bramlage, Jr.\nAramark\nStephen Bramlage, Jr.\nBy: /s/Lynn B. McKee\n10\nSchedule 1\nPrior Works" *k\n11\nExhibit A\nAramark\nIncentive Compensation Recoupment Policy\nOverview\nAramark (the "Company") has adopted this incentive compensation recoupment policy (the "Policy") in order to\nensure that incentive compensation is paid based on accurate financial data. In the event of an accounting restatement as\ndescribed below the Company may seek recovery of incentive compensation that would have not been paid if the correct\nperformance data had been used to determine the amount payable. The Board of Directors (the "Board") and the\nCompensation and Human Resources Committee of the Board (the "Committee") shall have full authority to interpret\nand enforce the Policy.\nCovered Employees\nThe Policy applies to "Covered Employees" who are: the executive officers of the Company and its subsidiaries\n(as defined under Rule 3b-7 under the Securities Exchange Act of 1934, as amended) and all other direct reports of the\nChief Executive Officer of the Company.\nIncentive Compensation\nFor purposes of this Policy, "incentive compensation" means cash performance bonuses and incentive stock\nawards including performance stock units paid, granted, vested or accrued under any Company plan or agreement in the\nform of cash or Company common stock whose payment or vesting is based on the achievement of one or more financial\nmetrics.\nAccounting Restatement; Calculation of Overpayment\nIf the Board or the Committee determines that (i) incentive compensation of a Covered Employee was overpaid,\nin whole or in part, as a result of a restatement of the reported financial or operating results of the Company due to\nmaterial non-compliance with financial reporting requirements under the securities laws (unless due to a change in\naccounting policy or applicable law) and (ii) such Covered Employee has engaged in misconduct that causes or\ncontributed, directly or indirectly, to the non-compliance that resulted in the obligation to restate the Company's reported\nfinancial or operating results, the Board or the Committee will determine, in its discretion, whether the Company shall,\nto the extent permitted by applicable law, seek to recover or cancel the incentive compensation granted, paid to, issued or\nvested in excess of the incentive compensation that would have been paid or granted to such Covered Employee or the\nincentive compensation in which such Covered Employee would have vested had the actual payment, granting or vesting\nbeen calculated based on the accurate data or restated results, as applicable (the "Overpayment").\n12\nForms of Recovery\nIf the Board or the Committee determines to seek recovery for the Overpayment, the Company shall have the\nright to demand that the Covered Employee reimburse the Company for the Overpayment. The Board or the Committee\nshall have the discretion to determine the form, amount and timing of any repayment. To the extent the Covered\nEmployee does not make reimbursement of the Overpayment, the Company shall have the right to enforce the repayment\nthrough the reduction or cancellation of outstanding and future incentive compensation and shall also have the right to\nsue for repayment. To the extent any shares have been issued under vested awards or such shares have been sold by the\nCovered Employee, the Company shall have the right to cancel any other outstanding stock-based awards with a value\nequivalent to the Overpayment, as determined by the Board or the Committee.\nTime Period for Overpayment Review\nThe Board or the Committee may make determinations of whether the Company shall seek recovery or\ncancellation of the Overpayment at any time through the end of the third fiscal year following the year for which the\ninaccurate performance criteria were measured; provided, that if steps have been taken within such period to restate the\nCompany's financial or operating results, the time period shall be extended until such restatement is completed. For\nillustrative purposes only, this means that if incentive compensation is paid in late calendar 2015 for performance metrics\nbased on fiscal year 2015 performance, the compensation shall be subject to review for Overpayment until the end of the\n2018 fiscal year Notwithstanding the above, if the Board or the Committee determines that any Covered Employee\nengaged in fraud or misconduct, the Board or the Committee shall be entitled to seek recovery or cancellation of the\nOverpayment with respect to such Covered Employee for a period of six years after the act of fraud or misconduct, as\nsuch time period is calculated by the Board or Committee.\nNo Additional Payments\nIn no event shall the Company be required to award Covered Employees an additional payment if the restated or\naccurate financial results would have resulted in a higher incentive compensation payment.\nApplicability\nThis Policy applies to all incentive compensation, granted, paid or credited after February 3, 2015, except to the\nextent prohibited by applicable law or any other legal obligation of the Company. Application of the Policy does not\npreclude the Company from taking any other action to enforce a Covered Employee's obligations to the Company,\nincluding termination of employment or institution of civil or criminal proceedings or any other remedies that may be\navailable to the Company, including such remedies contained, without limitation, in the Company's equity grant and\nemployment agreements, whether or not there is a restatement.\nCommittee Determination Final\n13\nAny determination by the Board or the Committee (or by any officer of the Company to whom enforcement\nauthority has been delegated) with respect to this Policy shall be final, conclusive and binding on all interested parties.\nOther Laws\nThe Policy is in addition to (and not in lieu of) any right of repayment, forfeiture or right of offset against any\nCovered Employee that is required pursuant to any statutory repayment requirement implemented at any time prior to or\nfollowing the adoption of the Policy. This policy is in addition to, and is not a substitute for, the requirements of Section\n304 of the Sarbanes-Oxley Act of 2002.\nAmendment; Termination\nThe Board or the Committee may amend or terminate this Policy at any time.\nAdopted on February 3, 2015\n14\nEXHIBIT B\nTERMINATION PROTECTION PROVISIONS\nThis is an Exhibit B to, and forms a part of, the Aramark Agreement Relating to Employment and Post-\nEmployment Competition between Stephen Bramlage, Jr. (the "Executive") and Aramark.\n1. Defined Terms.\nUnless otherwise indicated, capitalized terms used in this Exhibit which are defined in Schedule A shall\nhave the meanings set forth in Schedule A.\n2. Effective Date; Term.\nThis Exhibit shall be effective as of the 6th day of April, 2015 (the "Effective Date) and shall remain\nin\neffect until the later of three years following a Change of Control and the date that all of the Company's obligations\nunder this Exhibit have been satisfied in full.\n3. Change of Control Benefits.\nIf Executive's employment with the Company is terminated at any time within the two years following a\nChange of Control by the Company without Cause, or by Executive for Good Reason (the effective date of either such\ntermination hereafter referred to as the "Termination Date"), Executive shall be entitled to the payments and benefits\nprovided hereafter in this Section 3 and as set forth in this Exhibit. If Executive's employment by the Company is\nterminated prior to a Change of Control by the Company (i) at the request of a party (other than the Company) involved\nin the Change of Control or (ii) otherwise in connection with or in anticipation of a Change of Control that subsequently\noccurs, Executive shall be entitled to the benefits provided hereafter in this Section 3 and as set forth in this Exhibit, and\nExecutive's Termination Date shall be deemed to have occurred immediately following the Change of Control. Payment\nof benefits under this Exhibit shall be in lieu of any benefits payable under the Aramark Agreement relating to\nEmployment and Post-Employment Competition of which this Exhibit is a part, except as provided in Section 3(b)\nhereof. Notice of termination without Cause or for Good Reason shall be given in accordance with Section 13, and shall\nindicate the specific termination provision hereunder relied upon, the relevant facts and circumstances and the\nTermination Date.\na. Severance Payments. The Company shall pay Executive cash benefits equal to:\n(1) two times Executive's Base Salary in effect on the date of the Change of Control or the\nTermination Date, whichever is higher; provided that if any reduction of the Base Salary has occurred, then the Base\nSalary on either date shall be as in effect\n15\nimmediately prior to such reduction, payable in regular installments at such times as would otherwise be the Company's\nusual payroll practice over a period of two years; and\n(2) the higher of: (A) two times Executive's Target Bonus in effect on the date of the Change of\nControl or the Termination Date, whichever is greater; or (B) two times Executive's most recent actual annual bonus,\npayable in either case ratably in regular installments at the same time as payments are made to Executive under Section\n3(a)(1) above; provided that if any reduction of the Target Bonus has occurred, then the Target Bonus on either date shall\nbe as in effect immediately prior to such reduction; and\n(3) Executive's Target Bonus (as determined in (2), above) multiplied by a fraction, the\nnumerator of which shall equal the number of days Executive was employed by the Company in the Company fiscal year\nin which the Termination Date occurs and the denominator of which shall equal 365, payable as a cash lump sum within\nforty days after the Termination Date.\nb. Continuation of Benefits. Until the second anniversary of the Termination Date, the Company shall at\nits expense provide Executive and Executive's spouse and dependents with medical, life insurance and disability\ncoverages at the level provided to Executive immediately prior to the Change of Control; provided, however, that\nif\nExecutive becomes employed by a new employer, continuing coverage from the Company will become secondary to any\ncoverage afforded by the new employer. The Company shall also provide the benefits described in Article 6.A.2.b of the\nManagement Committee Agreement (as defined in Section 8 hereof); provided that such benefits shall continue until the\nsecond anniversary of the Termination Date (instead of the "Severance Pay Period" as defined in the Management\nCommittee Agreement).\nC. Payment of Earned But Unpaid Amounts. Within forty days after the Termination Date, the Company\nshall pay Executive the Base Salary through the Termination Date, any Bonus earned but unpaid as of the Termination\nDate for any. previously completed fiscal year of the Company, to the extent not previously deferred under a particular\ndeferred compensation plan, and reimbursement for any unreimbursed expenses properly incurred by Executive in\naccordance with Company policies prior to the Termination Date. Executive shall also receive such employee benefits,\nif\nany, to which Executive may be entitled from time to time under the employee benefit or fringe benefit plans, policies or\nprograms of the Company, other than any Company severance policy (payments and benefits in this subsection (c), the\n"Accrued Benefits").\nd. Qutplacement Counseling. For the two-year period following the Termination Date (or, if earlier, the\ndate Executive first obtains full-time employment after the Termination Date), the Company shall reimburse all\nreasonable expenses incurred by Executive for professional outplacement services by qualified consultants selected by\nExecutive, in an amount not to exceed 20% of the Executive's Base Salary in effect on the date of the Change of Control\nor the Termination Date, whichever is higher. All such reimbursement payments shall be made prior to the last day of the\nsecond calendar year following the calendar year in which the Termination Date occurs.\n16\ne. Vesting of Other Benefits. Executive shall be entitled to such accelerated vesting of outstanding\nequity-based awards or retirement plan benefits as is specified under the terms of the applicable plans, agreements and\narrangements.\n4. Mitigation.\nExecutive shall not be required to mitigate damages or the amount of any payment provided for under this\nExhibit by seeking other employment or otherwise, and, subject to Section 3(b), compensation earned from such\nemployment or otherwise shall not reduce the amounts otherwise payable under this Exhibit. No amounts payable under\nthis Exhibit shall be subject to reduction or offset in respect of any claims which the Company (or any other person or\nentity) may have against Executive.\n5. Excise Tax Consequences.\na. In the event it shall be determined that any payment, benefit or distribution (or combination thereof)\nby the Company, any of its affiliates, or one or more trusts established by the Company for the benefit of its employees,\nto or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this\nExhibit, or otherwise) (a "Payment") is subject to the excise tax imposed by Section 4999 of the Code or any interest or\npenalties\nare\nincurred\nby\nExecutive\nwith\nrespect\nto\nsuch\nexcise\ntax\n(such\nexcise\ntax,\ntogether\nwith\nany\nsuch\ninterest\nand\npenalties, hereinafter collectively referred to as the "Excise Tax"), if the net after-tax amount of such Payments, after\nExecutive has paid all taxes due thereon (including, without limitation, taxes due under Section 4999 of the Code) is less\nthan the net after-tax amount of all such Payments and benefits otherwise due to Executive in the aggregate, if such\naggregate Payments were reduced to an amount equal to 2.99 times the Executive's "base amount" (as defined in Section\n280G(b)(3) of the Code), then the aggregate amount of the payments and benefits shall be reduced to an amount that will\nequal 2.99 times the Executive's base amount. To the extent such aggregate parachute payment amounts are required to\nbe so reduced, the parachute payment amounts due to the Executive (but no non-parachute payment amounts) shall be\nreduced in the following order: (i) payments and benefits due under Section 3.a of this Exhibit shall be reduced (if\nnecessary, to zero) with amounts that are payable last reduced first; (ii) payments and benefits due in respect of any\nequity fully valued (without regard to any discounts for present value) for purposes of the calculation to be made under\nSection 280G of the Code for purposes of this Section 5 (the "280G Calculation") in reverse order of when payable; and\n(iii) payments and benefits due in respect of any options or stock appreciation rights with regard to Holdings equity\nsecurities valued under the 280G Calculation based on time of vesting shall be reduced in an order that is most beneficial\nto the Executive.\nb. All determinations required to be made under this Section 5, including whether and when a cutback is\nto be made, and the assumptions to be utilized in arriving at such determination, shall be made by such nationally\nrecognized certified public accounting firm as may be designated by the Company (the "Accounting Firm") which shall\nprovide detailed supporting calculations both to the Company and Executive within ten business days of the receipt of\nnotice from Executive that there has been a Payment, or such earlier time as is requested by the Company.\n17\nC. Notwithstanding anything contained in this Agreement or any other agreement between the Executive\nand the Company or any of its subsidiaries to the contrary, the Executive and the Company shall in good faith attempt to\nagree on steps to ensure that no payments to which the Executive would otherwise be entitled to receive pursuant to this\nAgreement or any such other agreement will be "parachute payments" (as defined in Section 280G(b)(2) of the Code).\n6. Termination for Cause.\nNothing in this Exhibit shall be construed to prevent the Company from terminating Executive's\nemployment for Cause. If Executive is terminated for Cause, the Company shall have no obligation to make any\npayments under this Exhibit, except for the Accrued Benefits.\n7. Indemnification; Director's and Officer's LiabilityInsurance.\nExecutive shall, after the Termination Date, retain all rights to indemnification under applicable law, any\nagreements, (including without limitation, the Stockholders Agreement), or under the Company's Certificate of\nIncorporation or By-Laws, as they may be amended or restated from time to time. In addition, the Company shall\nmaintain Director's and Officer's liability insurance on behalf of Executive, at the level in effect immediately prior to the\nTermination Date, for the three year period following the Termination Date, and throughout the period of any applicable\nstatute of limitations.\n8. Executive Covenants.\nThis is an Exhibit B to, and forms a part of, the Aramark Agreement Relating to Employment and Post-\nEmployment Competition between Executive and Aramark (the "Management Committee Agreement"). This Exhibit\nshall not diminish in any way Executive's rights under the terms of such Management Committee Agreement, except\nthat Executive's receipt of benefits under this Exhibit is contingent upon Executive's compliance in all material respects\nwith all of the terms and conditions of the Management Committee Agreement.\n9. Costs of Proceedings.\nEach party shall pay its own costs and expenses in connection with any legal proceeding (including\narbitration), relating to the interpretation or enforcement of any provision of this Exhibit, except that the Company shall\npay such costs and expenses, including attorneys' fees and disbursements, of Executive if Executive prevails on a\nsubstantial portion of the claims in such proceeding.\n10. Assignment.\nExcept as otherwise provided herein, this Exhibit shall be binding upon, inure to the benefit of and\nbe\nenforceable by the Company and Executive and their respective heirs, legal representatives, successors and assigns. If\nthe Company shall be merged into or consolidated\n18\nwith another entity, the provisions of this Exhibit shall be binding upon and inure to the benefit of the entity surviving\nsuch merger or resulting from such consolidation. The Company shall require any successor (whether direct or indirect,\nby purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company, by\nagreement, expressly to assume and agree to perform this Exhibit in the same manner and to the same extent that the\nCompany would be required to perform it if no such succession had taken place. The provisions of this Section 10 shall\ncontinue to apply to each subsequent employer of Executive hereunder in the event of any subsequent merger,\nconsolidation or transfer of assets of such subsequent employer.\n11. Withholding.\nNotwithstanding any other provision of this Exhibit, the Company may, to the extent required by law,\nwithhold applicable federal, state and local income and other taxes from any payments due to Executive hereunder.\n12. Applicable Law.\nThis Exhibit shall be governed by and construed in accordance with the laws of the Commonwealth of\nPennsylvania, without regard to conflicts of laws principles thereof.\n13. Notice.\nFor the purpose of this Exhibit, any notice and all other communication provided for in this Exhibit shall\nbe in writing and shall be deemed to have been duly given when delivered by hand or overnight courier or three days\nafter it has been mailed by United States registered mail, return receipt requested, postage prepaid, addressed to the\nrespective addresses set forth below, or to such other address as either party may have furnished to the other in writing in\naccordance herewith, except that notice of change of address shall be effective only upon receipt.\nIf to the Company:\nAramark\nAramark Tower\n1101 Market Street\nPhiladelphia, Pennsylvania 19107\nAttention: General Counsel\nIf to Executive:\nTo the most recent address of Executive set forth in the personnel records of the Company.\n14. Entire Agreement; Modification.\n19\nThis Exhibit constitutes the entire agreement between the parties and, except as expressly provided herein\nor in Article 6.E of the Management Committee Agreement or in any benefit plan of the Company or of any of its\naffiliates, supersedes all other prior agreements expressly concerning the effect of a Change of Control occurring after\nthe date of this Agreement with respect to the relationship between the Company and Executive. This Exhibit is not, and\nnothing herein shall be deemed to create, a contract of employment between the Company and Executive. This Exhibit\nmay be changed only by a written agreement executed by the Company and Executive.\n15. Severability..\nIn the event any one or more of the provisions of this Exhibit shall be or become invalid, illegal or\nunenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected\nthereby.\n20\nSchedule A\nCERTAIN DEFINITIONS\nAs used in this Exhibit, and unless the context requires a different meaning, the following terms, when\ncapitalized, have the meaning indicated:\n1.\n"Act" means the Securities Exchange Act of 1934, as amended.\n2. "Affiliate" shall have the meaning set forth in the Stockholders Agreement.\n3.\n"Base Salary." means Executive's annual rate of base salary in effect on the date in question.\n4. "Bonus" means the amount payable to Executive under the Company's applicable annual bonus plan with\nrespect to a fiscal year of the Company.\n5. "Cause" means "cause" as defined in the Management Committee Agreement of which this Schedule A\nforms a part.\n6.\n"Change of Control" means the first to occur of any of the following:\n(i) The acquisition by any individual entity or group, within the meaning of Section 13(d)(3) or 14(d)(2)\nof the Exchange Act, other than the Investor Groups and their Affiliates (the "Permitted Holders"), directly or indirectly,\nof beneficial ownership of equity securities of the Company representing more than 50% of the voting power of the then-\noutstanding equity securities of the Company entitled to vote generally in the election of directors (the "Company Voting\nSecurities"); provided, however, that for purposes of this subsection (i), the following shall not constitute a Change of\nControl: (A) any acquisition by the Company or any Sponsor Stockholder, (B) any acquisition by any employee benefit\nplan (or related trust) sponsored or maintained by the Company or any Subsidiary, or (C) any acquisition by any Person\npursuant to a transaction which complies with clauses (A) and (B) of subsection (ii) below; or\n(ii) The consummation of a reorganization, merger or consolidation or sale or other disposition of all or\nsubstantially all of the assets of the Company or the purchase of assets or stock of another entity (a "Business\nCombination"), in each case, unless immediately following such Business Combination, (A) all or substantially all of\nthe\nbeneficial owners of the Company Voting Securities immediately prior to such Business Combination beneficially own\nmore than 50% of the then-outstanding combined voting power of the then-outstanding securities entitled to vote\ngenerally\nin\nthe\nelection\nof\ndirectors\nof\nthe\nentity\nresulting\nfrom\nsuch\nBusiness\nCombination\nin\nsubstantially\nthe\nsame\nproportion (relative to each other) as their ownership immediately prior to such Business Combination of the Company\nVoting Securities, and (B) no Person (excluding the Permitted Holders) beneficially owns, directly or indirectly, more\nthan a majority of the combined voting power of the then-outstanding voting securities of such entity\n21\nexcept to the extent that such ownership of the Company existed prior to the Business Combination; or\n(iii) A majority of the members of the Company's Board of Directors are replaced during any 12-month\nperiod by directors whose appointment or election is not endorsed by a majority of the current members of the\nCompany's Board of Directors before such replacement or is not contemplated by the Stockholders Agreement as in\neffect on the date hereof.\nNotwithstanding paragraphs (i) through (iii) above, in no event will a Change of Control be deemed to\noccur if the Permitted Holders maintain a direct or indirect Controlling Interest in the Company. A "Controlling Interest"\nin an entity shall mean beneficial ownership of more than 50% of the voting power of the outstanding equity securities of\nthe entity.\n7.\n"Code" means the Internal Revenue Code of 1986, as amended.\n8. "Company." means Aramark or any of its parents and any successor or successors thereto.\n9. "Good Reason" means any of the following actions on or after a Change of Control, without Executive's\nexpress prior written approval, other than due to Executive's Permanent Disability or death:\n(a) any decrease in Base Salary or Target Bonus;\n(b) any decrease in Executive's pension benefit opportunities or any material diminution in the\naggregate employee benefits, in each case, afforded to the Executive immediately prior to the Change of Control, but not\nincluding any such decrease or diminution that is inadvertent and that is cured within 30 days following written notice of\nsuch decrease or diminution by Executive to the Company;\n(c) any diminution in Executive's title or reporting relationship, or substantial diminution in duties or\nresponsibilities (other than solely as a result of a Change of Control in which the Company immediately thereafter is no\nlonger publicly held); or\n(d) any relocation of Executive's principal place of business of 35 miles or more, other than normal\ntravel consistent with past practice.\nExecutive shall have twelve months from the time Executive first becomes aware of the existence\nof Good Reason to resign for Good Reason.\nThe Executive must provide notice to the Company of the existence of the condition described above within a period not\nto\nexceed 90 days of the initial existence of the condition, upon the notice of which the Company shall have a period of\n30 days during which it may remedy the condition and not be required to pay the amount.\n22\n10. "Permanent Disability" means "permanent disability" as defined in the Company's long-term disability plan\nas in effect from time to time, or if there shall be no plan, the inability of Executive to perform in all material respects\nExecutive's duties and responsibilities to the Company or any affiliate for a period of six (6) consecutive months or for\nan aggregate of nine (9) months in any twenty-four (24) consecutive month period by reason of a physical or mental\nincapacity.\n11. "Permitted Holder" shall have the same meaning as set forth in the Stockholders Agreement.\n12. "Target Bonus" means the target Bonus established for Executive in respect of any given year, whether\nexpressed as a percentage of Base Salary or a dollar amount.\n23	EX-10 .2 3 ex102elcagreement.htm EXHIBIT 10.2\nExhibit 10.2\nARAMARK AGREEMENT RELATING TO EMPLOYMENT AND\nPOST-EMPLOYMENT COMPETITION\nThis Agreement is between the undersigned individual (“Employee”) and Aramark.\nRECITALS\nWHEREAS, Aramark is a leading provider of managed services to business and industry, private and public\ninstitutions, and the general public, in the following business groups: food and support services and uniform and career\napparel;\nWHEREAS, Aramark has a proprietary interest in its business and financial plans and systems, methods of\noperation and other secret and confidential information, knowledge and data (“Proprietary Information”) which includes,\nbut is not limited to, all confidential, proprietary or non-public information, ideas and concepts; annual and strategic\nbusiness plans; financial plans, reports and systems including, profit and loss statements, sales, accounting forms and\nprocedures and other information regarding costs, pricing and the financial condition of Aramark and its business\nsegments and groups; management development reviews, including information regarding the capabilities and\nexperience of Aramark employees; intellectual property, including patents, inventions, discoveries, research and\ndevelopment, compounds, recipes, formulae, reports, protocols, computer software and databases; information regarding\nAramark’s relationships with its clients, customers, and suppliers and prospective clients, partners, customers and\nsuppliers; policy and procedure manuals, information regarding materials and documents in any form or medium\n(including oral, written, tangible, intangible, or electronic) concerning any of the above, or any past, current or future\nbusiness activities of Aramark that is not publicly available; compensation, recruiting and training, and human resource\npolicies and procedures; and data compilations, research, reports, structures, compounds, techniques, methods,\nprocesses, and know-how;\nWHEREAS, all such Proprietary Information is developed at great expense to Aramark and is considered by\nAramark to be confidential trade secrets;\nWHEREAS, Employee, as a senior manager, will have access to Aramark’s Proprietary Information, directly in\nthe course of Employee’s employment, and indirectly through interaction with and presentations by other Aramark\nsenior managers at the Executive Leadership Institute, Executive Leadership Council meetings, Presidents’ Council\nmeetings and the like;\nWHEREAS, Aramark will introduce Employee to Aramark clients, customers, suppliers and others, and will\nencourage, and provide resources for, Employee to develop professional relationships with Aramark’s clients, customers,\nsuppliers and others;\nWHEREAS, Aramark will provide specialized training and skills to Employee in connection with the\nperformance of Employee’s duties at Aramark which training involves the disclosure by Aramark to Employee of\nProprietary Information;\nWHEREAS, Aramark will be vulnerable to unfair post-employment competition by Employee because\nEmployee will have access to and knowledge of Aramark’s Proprietary Information, will have a personal relationship\nwith Aramark’s clients, customers, suppliers and others, and will generate good will which Employee acknowledges\nbelongs to Aramark;\nNOW, THEREFORE, in consideration of Employee’s employment with Aramark, the opportunity to receive the\ngrant of options to purchase common stock of Aramark, severance and other post-employment benefits provided for\nherein (including pursuant to Exhibit B hereto to which Employee acknowledges Employee is not otherwise entitled),\nand for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Employee\nagrees to enter into this Agreement with Aramark as a condition of employment pursuant to which Aramark will limit\nEmployee’s right to compete against Aramark during and following termination of employment on the terms set forth in\nthis Agreement. Intending to be legally bound, the parties agree as follows:\nARTICLE 1\nNON-DISCLOSURE AND NON-DISPARAGEMENT\nEmployee shall not, during or after termination of employment, directly or indirectly, in any manner utilize or\ndisclose to any person, firm, corporation, association or other entity, except where required by law, any Proprietary\nInformation which is not generally known to the public, or has not otherwise been disclosed or recognized as standard\npractice in the industries in which Aramark is engaged. Employee shall, during and after termination of employment,\nrefrain from making any statements or comments of a defamatory or disparaging nature to any third party regarding\nAramark, or any of Aramark’s officers, directors, personnel, policies or products, other than to comply with law.\nARTICLE 2\nNON-COMPETITION\nA. Subject to Article 2. B . below, Employee, during Employee’s period of employment with Aramark, and for a\nperiod of two years following the voluntary or involuntary termination of employment, shall not, without Aramark’s\nwritten permission, which shall be granted or denied in Aramark’s sole discretion, directly or indirectly, associate with\n(including, but not limited to, association as a sole proprietor, owner, employer, partner, principal, investor, joint\nventurer, shareholder, associate, employee, member, consultant, contractor or otherwise), or acquire or maintain\nownership interest in, any Business which is competitive with that conducted by or developed for later implementation\nby Aramark at any time during the term of Employee’s employment, provided, however, if Employee’s employment is\ninvoluntarily terminated by Aramark for any reason other than Cause (as defined herein), or (ii) terminated by Employee\nfor Good Reason (as defined in Exhibit B) at any time following a Change of Control (as defined in Exhibit B) occurring\nafter the date of this Agreement, then the term of the non-competition provision set forth herein will be modified to be\neighteen months following such termination of employment. For purposes of this Agreement, “Business” shall be\ndefined as a person, corporation, firm, LLC, partnership, joint venture or other entity. Nothing in the foregoing shall\n2\nprevent Employee from investing in a Business that is or becomes publicly traded, if Employee’s ownership is as a\npassive investor of less than 1% of the outstanding publicly traded stock of the Business.\nB. The provision set forth in Article 2.A above, shall apply to the full extent permitted by law (i) in all fifty\nstates, and (ii) each foreign country, possession or territory in which Aramark may be engaged in, or have plans to\nengage in, business (x) during Employee’s period of employment, or (y) in the case of a termination of employment, as\nof the effective date of such termination or at any time during the twenty-four month period prior thereto.\nC. Employee acknowledges that these restrictions are reasonable and necessary to protect the business interests\nof Aramark, and that enforcement of the provisions set forth in this Article 2 will not unnecessarily or unreasonably\nimpair Employee’s ability to obtain other employment following the termination (voluntary or involuntary) of\nEmployee’s employment with Aramark. Further, Employee acknowledges that the provisions set forth in this Article 2\nshall apply if Employee’s employment is involuntarily terminated by Aramark for Cause; as a result of the elimination of\nemployee’s position; for performance-related issues; or for any other reason or no reason at all.\nARTICLE 3\nNON-SOLICITATION\nDuring the period of Employee’s employment with Aramark and for a period of two years following the\ntermination of Employee’s employment, regardless of the reason for termination, Employee shall not, directly or\nindirectly: (i) induce or encourage any employee of Aramark to leave the employ of Aramark, (ii) hire any individual\nwho was an employee of Aramark as of the date of Employee’s termination of employment or within a six month period\nprior to such date, or (iii) induce or encourage any customer, client, supplier or other business relation of Aramark to\ncease or reduce doing business with Aramark or in any way interfere with the relationship between any such customer,\nclient, supplier or other business relation and Aramark.\nARTICLE 4\nDISCOVERIES AND WORKS\nEmployee hereby irrevocably assigns, transfers, and conveys to Aramark to the maximum extent permitted by\napplicable law Employee’s right, title and interest now or hereinafter acquired, in and to all Discoveries and Works (as\ndefined below) created, invented, designed, developed, improved or contributed to by Employee, either alone or jointly\nwith others, while employed by Aramark and within the scope of Employee’s employment and/or with the use of\nAramark’s resources. The terms “Discoveries and Works” include all works of authorship, inventions, intellectual\nproperty, materials, documents, or other work product (including, without limitation, Proprietary Information, patents\nand patent applications, patentable inventions, research, reports, software, code, databases, systems, applications,\npresentations, textual works, graphics and audiovisual materials). Employee shall have the burden of proving that any\nmaterials or works created, invented, designed, developed, contributed to or improved by\n3\nEmployee that are implicated by or relevant to employment by Aramark are not implicated by this provision. Employee\nagrees to (i) keep accurate records and promptly notify, make full disclosure to, and execute and deliver any documents\nand to take any further actions requested by Aramark to assist it in validating, effectuating, maintaining, protecting,\nenforcing, perfecting, recording, patenting or registering any of its rights hereunder, and (ii) renounce any and all claims,\nincluding, without limitation, claims of ownership and royalty, with respect to all Discoveries and Works and all other\nproperty owned or licensed by Aramark. Any Discoveries and Works that, within six months after the termination of\nEmployee’s employment with Aramark, are made, disclosed, reduced to a tangible or written form or description, or are\nreduced to practice by Employee and which pertain to the business carried on or products or services being sold or\ndeveloped by Aramark at the time of such termination shall, as between Employee and Aramark, be presumed to have\nbeen made during such employment with Aramark. Employee acknowledges that, to the fullest extent permitted by law,\nall Discoveries and Works shall be deemed “works made for hire” under the Copyright Act of 1976, as amended, 17\nU.S .C . Section 101. Employee hereby grants Aramark a perpetual, nonexclusive, royalty-free, worldwide, assignable,\nsublicensable license under all rights and intellectual property rights (including patent, industrial property, copyright,\ntrademark, trade secret, unfair competition and related laws) in any Works and Discoveries, for all purposes in\nconnection with Aramark’s current and future business, that Employee has created, invented, designed, developed,\nimproved or contributed to prior to Employee’s employment with Aramark that are relevant to or implicated by such\nemployment (“Prior Works”). Any Prior Works are disclosed by Employee in Schedule 1.\nARTICLE 5\nREMEDIES\nEmployee acknowledges that in the event of any violation by Employee of the provisions set forth in Articles 1,\n2, 3 or 4 above, Aramark will sustain serious, irreparable and substantial harm to its business, the extent of which will be\ndifficult to determine and impossible to fully remedy by an action at law for money damages. Accordingly, Employee\nagrees that, in the event of such violation or threatened violation by Employee, Aramark shall be entitled to an injunction\nbefore trial before any court of competent jurisdiction as a matter of course upon the posting of not more than a nominal\nbond, in addition to all such other legal and equitable remedies as may be available to Aramark. If Aramark is required\nto enforce the provisions set forth in Articles 2 and 3 above by seeking an injunction, Employee agrees that the relevant\ntime periods set forth in Articles 2 and 3 shall commence with the entry of the injunction. Employee further agrees that,\nin the event any of the provisions of this Agreement are determined by a court of competent jurisdiction to be invalid,\nillegal, or for any reason unenforceable as written, such court shall substitute a valid provision which most closely\napproximates the intent and purpose of the invalid provision and which would be enforceable to the maximum extent\npermitted by law.\nARTICLE 6\nPOST-EMPLOYMENT BENEFITS\n4\nA. If Employee’s employment is terminated by Aramark for any reason other than Cause, Employee shall be\nentitled to the following post-employment benefits:\n1. Severance Pay: Employee shall receive severance payments equivalent to Employee’s monthly base\nsalary as of the effective date of termination for twelve (12) months, should the Employee have less than one (1) year of\ncontinuous service with Aramark completed from the date of hire; and for eighteen (18) months, should the Employee\nhave one (1) year or more of continuous service with Aramark completed from the date of hire. Severance payments\nshall commence with the Employee’s effective date of termination and shall be made in accordance with Aramark’s\nnormal payroll cycle. The period during which Employee receives severance payments shall be referred to as the\n“Severance Pay Period.”\n2. Other Post-Employment Benefits\n(a) Basic Group medical and life insurance coverages shall continue under then prevailing terms\nduring the Severance Pay Period; provided, however, that if Employee becomes employed by a new employer during\nthat period, continuing coverage from Aramark will become secondary to any coverage afforded by the new employer.\nEmployee’s share of the premiums will be deducted from Employee’s severance payments. Basic Group medical\ncoverage provided during such period shall be applied against Aramark’s obligation to continue group medical coverage\nunder the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”). Upon termination of basic group\nmedical and life coverages, Employee may convert such coverages to individual policies to the extent allowable under\nthe terms of the plans providing such coverages.\n(b) If, at the time of termination, Aramark is providing Employee with a leased vehicle, then\nAramark will continue to provide the leased vehicle through the Severance Pay Period under the same terms and\nconditions as in effect at the time of the Employee’s termination. At the expiration of the Severance Pay Period,\nEmployee must return the leased vehicle to Aramark unless the Employee elects to purchase the vehicle in accordance\nwith the Executive Leadership Council policy then in effect. If Employee is receiving a car allowance at the time of the\nEmployee’s termination, such car allowance will continue to be paid through the Severance Pay Period. At the expiration\nof the Severance Pay Period, the Employee will cease being paid a car allowance.\n(c) Employee’s eligibility to participate in all other benefit and compensation plans, including,\nbut not limited to the Management Incentive Bonus, Long Term Disability, any nonqualified retirement plans, and any\nstock option or ownership plans, shall terminate as of the effective date of Employee’s termination unless provided\notherwise under the terms of a particular plan, provided, however, that participation in plans and programs made\navailable solely to Executive Leadership Council members, including, but not limited to the Executive Leadership\nCouncil Medical Plan, shall cease as of the effective date of termination or the date Employee’s Executive Leadership\nCommittee membership ceases, whichever occurs\n5\nfirst. Employee, however, shall have certain rights to continue the Executive Leadership Council Medical Plan under\nCOBRA.\nB. Termination for “Cause” shall be defined as termination of employment due to: (i) conviction or plea of\nguilty or nolo contendere to a felony, (ii) intentional fraud or dishonesty with respect to Aramark that causes material and\ndemonstrable harm to Aramark, (iii) willful and continuous failure to perform lawfully assigned duties that are consistent\nwith the Employee’s position with Aramark, (iv) willful violation of Aramark’s Business Conduct Policy that causes\nmaterial harm to Aramark or its business reputation, or (v) intentionally working against the best interests of Aramark; in\nany case of conduct described in clause (ii)-(v), only if such conduct continues beyond ten business days after receipt by\nthe Employee from Aramark of a written demand to cure such conduct.\nC. If Employee is terminated by Aramark for reasons other than Cause, Employee will receive the severance\npayments and other post-employment benefits during the Severance Pay Period even if Employee commences other\nemployment during such period provided such employment does not violate the terms of Article 2, and subject to the\nprovisions of Article 6.E.\nNotwithstanding anything else contained in this Article 6 to the contrary, Aramark may choose not to commence\n(or to discontinue) providing any payment or benefit unless and until Employee executes and delivers, without\nrevocation, a release in form reasonably acceptable to Aramark, as described in Article 6.E within 60 days following\nEmployee’s termination of employment; provided, however, that subject to receipt of such executed release, Aramark\nshall commence providing such payments and benefits within 75 days following the date of termination of Employee’s\nemployment.\nD. In addition to the remedies set forth in Article 5, Aramark reserves the right to terminate all severance\npayments and other post-employment benefits if Employee violates the covenants set forth in Articles 1, 2, 3 or 4 above\nin any material respect.\nE. Employee’s receipt of severance and other post-employment benefits under this Agreement is contingent on\n(i) Employee’s execution of a release in a form reasonably acceptable to Aramark, except that such release shall not\ninclude any claims by Employee to enforce Employee’s rights under, or with respect to, (1) this Agreement (including\nthe attached Exhibit B), (2) the Certificate of Incorporation and By-laws of Aramark, (3) any indemnification agreement\nbetween the Employee and Aramark, (4) any Stockholders Agreement among Aramark and the holders party thereto (the\n“Stockholders Agreement”) and any other agreement referenced therein, or (5) any Aramark benefit plan pursuant to its\nterms, and (ii) the expiration of the applicable Age Discrimination in Employment Act revocation period without such\nrelease being revoked by Employee.\nARTICLE 7\nTERM OF EMPLOYMENT\nEmployee acknowledges that Aramark has the right to terminate Employee’s employment at any time for any\nreason whatsoever, provided, however, that any termination by Aramark for\n6\nreasons other than Cause shall result in the severance and the post-employment benefits described in Article 6 above, to\nbecome due in accordance with the terms of this Agreement subject to the conditions set forth in this Agreement.\nEmployee further acknowledges that the severance payments made and other benefits provided by Aramark are in full\nsatisfaction of any obligations Aramark may have resulting from Aramark’s exercise of its right to terminate Employee’s\nemployment, except for those obligations which are intended to survive termination such as the payments to be made\npursuant to retirement plans, deferred compensation plans, conversion of insurance, and the plans and other documents\nand agreements referred to in Article 6.E above.\nARTICLE 8\nMISCELLANEOUS\nA. As used throughout this Agreement, Aramark includes Aramark and its subsidiaries and affiliates or any\ncorporation, joint venture, or other entity in which Aramark or its subsidiaries or affiliates has an equity interest in excess\nof ten percent (10%).\nB. Notwithstanding anything to the contrary contained herein, Employee shall, after termination of employment\nfor Good Reason by Employee or other than for Cause by Aramark, retain all rights to indemnification under applicable\nlaw or any agreement (including, without limitation, the Stockholders Agreement), or under Aramark’s or any parent\ncorporation’s Certificate of Incorporation or By-Laws at a level that is at least as favorable to the Employee as that\ncurrently provided. In addition, the Company shall maintain Director’s and Officer’s liability insurance on behalf of\nEmployee, at the level in effect immediately prior to such date of termination, for the three-year period following the\ndate of termination, and throughout the period of any applicable statute of limitations.\nC. In the event that it is reasonably determined by Aramark that, as a result of the deferred compensation tax\nrules under Section 409A of the Internal Revenue Code of 1986, as amended (and any related regulations or other\npronouncements thereunder) (“the Deferred Compensation Tax Rules”), any of the payments and benefits that Employee\nis entitled to under the terms of this Agreement (including under Exhibit B) may not be made at the time contemplated\nby the terms hereof or thereof, as the case may be, without causing Employee to be subject to tax under the Deferred\nCompensation Tax Rules, Aramark shall, in lieu of providing such payment or benefit when otherwise due under this\nAgreement, instead provide such payment or benefit on the first day on which such provision would not result in\nEmployee incurring any tax liability under the Deferred Compensation Tax Rules; which day, if Employee is a “specified\nemployee” within the meaning of the Deferred Compensation Tax Rules, shall be the first day of the seventh month\nfollowing the date of Employee’s termination of employment (or the earliest date as is permitted under the Deferred\nCompensation Tax Rules, without any accelerated or additional tax); provided, further, that to the extent that the amount\nof payments due under Article 6.A (or Exhibit B, as applicable) are not subject to the Deferred Compensation Tax Rules\nby virtue of the application of Treas. Reg. Sec. 1.409A-1(b)(9)(iii)(A), such payments may be made prior to the\nexpiration of such six-month period. In addition, if the commencement of any payment or benefit provided under Article\n6 that constitutes “deferred compensation”\n7\nunder the Deferred Compensation Tax Rules could, by application of the terms conditioning such payment or benefit\nupon the execution and non-revocation of a release set forth in Article 6, occur in one of two taxable years, then the\ncommencement of such payment shall begin on the first payroll date occurring in January of such second taxable year.\nTo the extent any reimbursements or in-kind benefits due to Employee under this Agreement constitute “deferred\ncompensation” under the Deferred Compensation Tax Rules, any such reimbursements or in-kind benefits shall be paid\nto Employee in a manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv). Additionally, to the extent that\nEmployee's receipt of any in-kind benefits from Aramark or its affiliates must be delayed pursuant to this Section due to\nEmployee’s status as a “specified employee,” Employee may elect to instead purchase and receive such benefits during\nthe period in which the provision of benefits would otherwise be delayed by paying the Aramark (or its affiliates) for the\nfair market value of such benefits (as determined by Aramark in good faith) during such period. Any amounts paid by\nEmployee pursuant to the preceding sentence shall be reimbursed to Employee (with interest thereon) as described above\non the date that is the first day of the seventh month following Employee’s separation from service. In the event that any\npayments or benefits that Aramark would otherwise be required to provide under this Agreement cannot be provided in\nthe manner contemplated herein without subjecting Employee to tax under the Deferred Compensation Tax Rules,\nAramark shall provide such intended payments or benefits to Employee in an alternative manner that conveys an\nequivalent economic benefit to Employee as soon as practicable as may otherwise be permitted under the Deferred\nCompensation Tax Rules. Without limiting the generality of the foregoing, Employee may notify Aramark if he believes\nthat any provision of this Agreement (or of any award of compensation including equity compensation or benefits)\nwould cause Employee to incur any additional tax under Section 409A and, if Aramark concurs with such belief after\ngood faith review or Aramark independently makes such determination, Aramark shall, after consulting with Employee,\nuse reasonable best efforts to reform such provision to comply with Section 409A through good faith modifications to\nthe minimum extent reasonably appropriate to conform the Deferred Compensation Tax Rules; provided that neither\nAramark nor any of its employees or representatives shall have any liability to Employee with respect thereto. For\npurposes of the Deferred Compensation Tax Rules, each payment made under this Agreement (including, without\nlimitation, each installment payment due under Article 6.A and Exhibit B, as applicable) shall be designated as a\n“separate payment” within the meaning of the Deferred Compensation Tax Rules, and references herein to Employee’s\n“termination of employment” shall refer to Employee’s separation from service with Aramark and its affiliates within the\nmeaning of the Deferred Compensation Tax Rules.\nD. In the event of a Change of Control as defined in the attached Exhibit B, the provisions of Exhibit B shall\napply to Employee. Further, pursuant to the Deferred Compensation Tax Rules, Aramark, in its discretion, is permitted to\naccelerate the time and form of payments provided under the deferred compensation arrangement set forth in this\nAgreement (including Exhibit B), where the right to the payment arises due to a termination of the arrangement within\nthe 30 days preceding or the 12 months following a change in control event (as defined in the Deferred Compensation\nTax Rules).\n8\nE. If Employee’s employment with Aramark terminates solely by reason of a transfer of stock or assets of, or a\nmerger or other disposition of, a subsidiary of Aramark (whether direct or indirect), such termination shall not be\ndeemed a termination of employment by Aramark for purposes of this Agreement, provided that Aramark requires the\nsubsequent employer, by agreement, to expressly assume and agree to perform this Agreement in the same manner and\nto the same extent that Aramark would be required to perform it if no such transaction had taken place. In such case,\nEmployee acknowledges and agrees that Aramark may assign this Agreement and Aramark’s rights hereunder, and\nparticularly Articles 1, 2, 3 and 4, in its sole discretion and without advance approval by Employee. In such case,\nEmployee agrees that Aramark may assign this Agreement and all references to “Aramark” contained in this Agreement\nshall thereafter be deemed to refer to the subsequent employer.\nF. Employee shall not be required to mitigate damages or the amount of any payment provided for under this\nAgreement by seeking other employment or otherwise.\nG. This Agreement shall supersede and substitute for any previous post-employment or severance agreement\nbetween Employee and Aramark.\nH. In the event any one or more of the provisions of this Agreement shall be or become invalid, illegal or\nunenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall\nnot be affected thereby.\nI. The terms of this Agreement shall be governed by the laws of the Commonwealth of Pennsylvania, without\nregard to conflicts of laws principles thereof. For purposes of any action or proceeding, Employee irrevocably submits to\nthe non-exclusive jurisdiction of the courts of Pennsylvania and the courts of the United States of America located in\nPennsylvania for the purpose of any judicial proceeding arising out of or relating to this Agreement, and acknowledges\nthat the designated fora have a reasonable relation to the Agreement and to the parties’ relationship with one another.\nNotwithstanding the provisions of this Article 8.I, Aramark may, in its discretion, bring an action or special proceeding\nin any court of competent jurisdiction for the purpose of seeking temporary or preliminary relief pending resolution of a\ndispute.\nJ. Employee expressly consents to the application of Article 8.I to any judicial action or proceeding arising out\nof or relating to this Agreement. Aramark shall have the right to serve legal process upon Employee in any manner\npermitted by law. In addition, Employee irrevocably appoints the Executive Vice President, Human Resources of\nAramark (or any successor) as Employee’s agent for service of legal process in connection with any such action or\nproceeding and Employee agrees that service of legal process upon such agent, who shall promptly advise Employee of\nany such service of legal process at the address of Employee then in the records of Aramark, shall be deemed in every\nrespect effective service of legal process upon Employee in any such action or proceeding.\nK. Employee hereby waives, to the fullest extent permitted by applicable law, any objection that Employee now\nor hereafter may have to personal jurisdiction or to the laying of venue of any action or proceeding brought in any court\nreferenced in Article 8.I and hereby agrees not to plead or claim the same.\n9\nL. Notwithstanding any other provision of this Agreement, Aramark may, to the extent required by law,\nwithhold applicable federal, state and local income and other taxes from any payments due to Employee hereunder.\nM. Employee and Aramark acknowledge that for purposes of Article 6, Employee’s last hire date with Aramark\nis April 6, 2015.\nN. Employee expressly acknowledges and agrees that the Incentive Compensation Recoupment Policy set forth\nin Exhibit to this Agreement is binding on Employee and that Employee is a Covered Employee as defined in that policy\nO. This Agreement shall be binding upon, inure to the benefit of and be enforceable by Aramark and Employee,\nand their respective heirs, legal representatives, successors and assigns. Employee acknowledges and agrees that this\nAgreement, including its provisions on post-employment restrictions, is specifically assignable by Aramark. Employee\nhereby consents to such future assignment and agrees not to challenge the validity of such future assignment.\nIN WITNESS WHEREOF, and intending to be legally bound, the parties hereto have caused this Agreement to\nbe signed this 14th date of March, 2015.\n/s/ Stephen P. Bramlage, Jr.\nAramark\nStephen Bramlage, Jr.\nBy: /s/ Lynn B. McKee\n10\nSchedule 1\nPrior Works*\n11\nExhibit A\nAramark\nIncentive Compensation Recoupment Policy\nOverview\nAramark (the “Company”) has adopted this incentive compensation recoupment policy (the “Policy”) in order to\nensure that incentive compensation is paid based on accurate financial data. In the event of an accounting restatement as\ndescribed below the Company may seek recovery of incentive compensation that would have not been paid if the correct\nperformance data had been used to determine the amount payable. The Board of Directors (the “Board”) and the\nCompensation and Human Resources Committee of the Board (the “Committee”) shall have full authority to interpret\nand enforce the Policy.\nCovered Employees\nThe Policy applies to “Covered Employees” who are: the executive officers of the Company and its subsidiaries\n(as defined under Rule 3b-7 under the Securities Exchange Act of 1934, as amended) and all other direct reports of the\nChief Executive Officer of the Company.\nIncentive Compensation\nFor purposes of this Policy, “incentive compensation” means cash performance bonuses and incentive stock\nawards including performance stock units paid, granted, vested or accrued under any Company plan or agreement in the\nform of cash or Company common stock whose payment or vesting is based on the achievement of one or more financial\nmetrics.\nAccounting Restatement; Calculation of Overpayment\nIf the Board or the Committee determines that (i) incentive compensation of a Covered Employee was overpaid,\nin whole or in part, as a result of a restatement of the reported financial or operating results of the Company due to\nmaterial non-compliance with financial reporting requirements under the securities laws (unless due to a change in\naccounting policy or applicable law) and (ii) such Covered Employee has engaged in misconduct that causes or\ncontributed, directly or indirectly, to the non-compliance that resulted in the obligation to restate the Company’s reported\nfinancial or operating results, the Board or the Committee will determine, in its discretion, whether the Company shall,\nto the extent permitted by applicable law, seek to recover or cancel the incentive compensation granted, paid to, issued or\nvested in excess of the incentive compensation that would have been paid or granted to such Covered Employee or the\nincentive compensation in which such Covered Employee would have vested had the actual payment, granting or vesting\nbeen calculated based on the accurate data or restated results, as applicable (the “Overpayment”).\n12\nForms of Recovery\nIf the Board or the Committee determines to seek recovery for the Overpayment, the Company shall have the\nright to demand that the Covered Employee reimburse the Company for the Overpayment. The Board or the Committee\nshall have the discretion to determine the form, amount and timing of any repayment. To the extent the Covered\nEmployee does not make reimbursement of the Overpayment, the Company shall have the right to enforce the repayment\nthrough the reduction or cancellation of outstanding and future incentive compensation and shall also have the right to\nsue for repayment. To the extent any shares have been issued under vested awards or such shares have been sold by the\nCovered Employee, the Company shall have the right to cancel any other outstanding stock-based awards with a value\nequivalent to the Overpayment, as determined by the Board or the Committee.\nTime Period for Overpayment Review\nThe Board or the Committee may make determinations of whether the Company shall seek recovery or\ncancellation of the Overpayment at any time through the end of the third fiscal year following the year for which the\ninaccurate performance criteria were measured; provided, that if steps have been taken within such period to restate the\nCompany’s financial or operating results, the time period shall be extended until such restatement is completed. For\nillustrative purposes only, this means that if incentive compensation is paid in late calendar 2015 for performance metrics\nbased on fiscal year 2015 performance, the compensation shall be subject to review for Overpayment until the end of the\n2018 fiscal year. Notwithstanding the above, if the Board or the Committee determines that any Covered Employee\nengaged in fraud or misconduct, the Board or the Committee shall be entitled to seek recovery or cancellation of the\nOverpayment with respect to such Covered Employee for a period of six years after the act of fraud or misconduct, as\nsuch time period is calculated by the Board or Committee.\nNo Additional Payments\nIn no event shall the Company be required to award Covered Employees an additional payment if the restated or\naccurate financial results would have resulted in a higher incentive compensation payment.\nApplicability\nThis Policy applies to all incentive compensation, granted, paid or credited after February 3, 2015, except to the\nextent prohibited by applicable law or any other legal obligation of the Company. Application of the Policy does not\npreclude the Company from taking any other action to enforce a Covered Employee’s obligations to the Company,\nincluding termination of employment or institution of civil or criminal proceedings or any other remedies that may be\navailable to the Company, including such remedies contained, without limitation, in the Company’s equity grant and\nemployment agreements, whether or not there is a restatement.\nCommittee Determination Final\n13\nAny determination by the Board or the Committee (or by any officer of the Company to whom enforcement\nauthority has been delegated) with respect to this Policy shall be final, conclusive and binding on all interested parties.\nOther Laws\nThe Policy is in addition to (and not in lieu of) any right of repayment, forfeiture or right of offset against any\nCovered Employee that is required pursuant to any statutory repayment requirement implemented at any time prior to or\nfollowing the adoption of the Policy. This policy is in addition to, and is not a substitute for, the requirements of Section\n304 of the Sarbanes-Oxley Act of 2002.\nAmendment; Termination\nThe Board or the Committee may amend or terminate this Policy at any time.\nAdopted on February 3, 2015\n14\nEXHIBIT B\nTERMINATION PROTECTION PROVISIONS\nThis is an Exhibit B to, and forms a part of, the Aramark Agreement Relating to Employment and Post-\nEmployment Competition between Stephen Bramlage, Jr. (the “Executive”) and Aramark.\n1. Defined Terms.\nUnless otherwise indicated, capitalized terms used in this Exhibit which are defined in Schedule A shall\nhave the meanings set forth in Schedule A.\n2. Effective Date; Term.\nThis Exhibit shall be effective as of the 6th day of April, 2015 (the “Effective Date) and shall remain in\neffect until the later of three years following a Change of Control and the date that all of the Company’s obligations\nunder this Exhibit have been satisfied in full.\n3. Change of Control Benefits.\nIf Executive’s employment with the Company is terminated at any time within the two years following a\nChange of Control by the Company without Cause, or by Executive for Good Reason (the effective date of either such\ntermination hereafter referred to as the “Termination Date”), Executive shall be entitled to the payments and benefits\nprovided hereafter in this Section 3 and as set forth in this Exhibit. If Executive’s employment by the Company is\nterminated prior to a Change of Control by the Company (i) at the request of a party (other than the Company) involved\nin the Change of Control or (ii) otherwise in connection with or in anticipation of a Change of Control that subsequently\noccurs, Executive shall be entitled to the benefits provided hereafter in this Section 3 and as set forth in this Exhibit, and\nExecutive’s Termination Date shall be deemed to have occurred immediately following the Change of Control. Payment\nof benefits under this Exhibit shall be in lieu of any benefits payable under the Aramark Agreement relating to\nEmployment and Post-Employment Competition of which this Exhibit is a part, except as provided in Section 3(b)\nhereof. Notice of termination without Cause or for Good Reason shall be given in accordance with Section 13, and shall\nindicate the specific termination provision hereunder relied upon, the relevant facts and circumstances and the\nTermination Date.\na. Severance Payments. The Company shall pay Executive cash benefits equal to:\n(1) two times Executive’s Base Salary in effect on the date of the Change of Control or the\nTermination Date, whichever is higher; provided that if any reduction of the Base Salary has occurred, then the Base\nSalary on either date shall be as in effect\n15\nimmediately prior to such reduction, payable in regular installments at such times as would otherwise be the Company’s\nusual payroll practice over a period of two years; and\n(2) the higher of: (A) two times Executive’s Target Bonus in effect on the date of the Change of\nControl or the Termination Date, whichever is greater; or (B) two times Executive’s most recent actual annual bonus,\npayable in either case ratably in regular installments at the same time as payments are made to Executive under Section\n3(a)(1) above; provided that if any reduction of the Target Bonus has occurred, then the Target Bonus on either date shall\nbe as in effect immediately prior to such reduction; and\n(3) Executive’s Target Bonus (as determined in (2), above) multiplied by a fraction, the\nnumerator of which shall equal the number of days Executive was employed by the Company in the Company fiscal year\nin which the Termination Date occurs and the denominator of which shall equal 365, payable as a cash lump sum within\nforty days after the Termination Date.\nb. Continuation of Benefits. Until the second anniversary of the Termination Date, the Company shall at\nits expense provide Executive and Executive’s spouse and dependents with medical, life insurance and disability\ncoverages at the level provided to Executive immediately prior to the Change of Control; provided, however, that if\nExecutive becomes employed by a new employer, continuing coverage from the Company will become secondary to any\ncoverage afforded by the new employer. The Company shall also provide the benefits described in Article 6.A.2.b of the\nManagement Committee Agreement (as defined in Section 8 hereof); provided that such benefits shall continue until the\nsecond anniversary of the Termination Date (instead of the “Severance Pay Period” as defined in the Management\nCommittee Agreement).\nc. Payment of Earned But Unpaid Amounts. Within forty days after the Termination Date, the Company\nshall pay Executive the Base Salary through the Termination Date, any Bonus earned but unpaid as of the Termination\nDate for any previously completed fiscal year of the Company, to the extent not previously deferred under a particular\ndeferred compensation plan, and reimbursement for any unreimbursed expenses properly incurred by Executive in\naccordance with Company policies prior to the Termination Date. Executive shall also receive such employee benefits, if\nany, to which Executive may be entitled from time to time under the employee benefit or fringe benefit plans, policies or\nprograms of the Company, other than any Company severance policy (payments and benefits in this subsection (c), the\n“Accrued Benefits”).\nd. Outplacement Counseling. For the two-year period following the Termination Date (or, if earlier, the\ndate Executive first obtains full-time employment after the Termination Date), the Company shall reimburse all\nreasonable expenses incurred by Executive for professional outplacement services by qualified consultants selected by\nExecutive, in an amount not to exceed 20% of the Executive’s Base Salary in effect on the date of the Change of Control\nor the Termination Date, whichever is higher. All such reimbursement payments shall be made prior to the last day of the\nsecond calendar year following the calendar year in which the Termination Date occurs.\n16\ne. Vesting of Other Benefits. Executive shall be entitled to such accelerated vesting of outstanding\nequity-based awards or retirement plan benefits as is specified under the terms of the applicable plans, agreements and\narrangements.\n4. Mitigation.\nExecutive shall not be required to mitigate damages or the amount of any payment provided for under this\nExhibit by seeking other employment or otherwise, and, subject to Section 3(b), compensation earned from such\nemployment or otherwise shall not reduce the amounts otherwise payable under this Exhibit. No amounts payable under\nthis Exhibit shall be subject to reduction or offset in respect of any claims which the Company (or any other person or\nentity) may have against Executive.\n5. Excise Tax Consequences.\na. In the event it shall be determined that any payment, benefit or distribution (or combination thereof)\nby the Company, any of its affiliates, or one or more trusts established by the Company for the benefit of its employees,\nto or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this\nExhibit, or otherwise) (a “Payment”) is subject to the excise tax imposed by Section 4999 of the Code or any interest or\npenalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and\npenalties, hereinafter collectively referred to as the “Excise Tax”), if the net after-tax amount of such Payments, after\nExecutive has paid all taxes due thereon (including, without limitation, taxes due under Section 4999 of the Code) is less\nthan the net after-tax amount of all such Payments and benefits otherwise due to Executive in the aggregate, if such\naggregate Payments were reduced to an amount equal to 2.99 times the Executive’s “base amount” (as defined in Section\n280G(b)(3) of the Code), then the aggregate amount of the payments and benefits shall be reduced to an amount that will\nequal 2.99 times the Executive’s base amount. To the extent such aggregate parachute payment amounts are required to\nbe so reduced, the parachute payment amounts due to the Executive (but no non-parachute payment amounts) shall be\nreduced in the following order: (i) payments and benefits due under Section 3.a of this Exhibit shall be reduced (if\nnecessary, to zero) with amounts that are payable last reduced first; (ii) payments and benefits due in respect of any\nequity fully valued (without regard to any discounts for present value) for purposes of the calculation to be made under\nSection 280G of the Code for purposes of this Section 5 (the “280G Calculation”) in reverse order of when payable; and\n(iii) payments and benefits due in respect of any options or stock appreciation rights with regard to Holdings equity\nsecurities valued under the 280G Calculation based on time of vesting shall be reduced in an order that is most beneficial\nto the Executive.\nb. All determinations required to be made under this Section 5, including whether and when a cutback is\nto be made, and the assumptions to be utilized in arriving at such determination, shall be made by such nationally\nrecognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”) which shall\nprovide detailed supporting calculations both to the Company and Executive within ten business days of the receipt of\nnotice from Executive that there has been a Payment, or such earlier time as is requested by the Company.\n17\nc. Notwithstanding anything contained in this Agreement or any other agreement between the Executive\nand the Company or any of its subsidiaries to the contrary, the Executive and the Company shall in good faith attempt to\nagree on steps to ensure that no payments to which the Executive would otherwise be entitled to receive pursuant to this\nAgreement or any such other agreement will be “parachute payments” (as defined in Section 280G(b)(2) of the Code).\n6. Termination for Cause.\nNothing in this Exhibit shall be construed to prevent the Company from terminating Executive’s\nemployment for Cause. If Executive is terminated for Cause, the Company shall have no obligation to make any\npayments under this Exhibit, except for the Accrued Benefits.\n7. Indemnification; Director’s and Officer’s Liability Insurance.\nExecutive shall, after the Termination Date, retain all rights to indemnification under applicable law, any\nagreements, (including without limitation, the Stockholders Agreement), or under the Company’s Certificate of\nIncorporation or By-Laws, as they may be amended or restated from time to time. In addition, the Company shall\nmaintain Director ’s and Officer’s liability insurance on behalf of Executive, at the level in effect immediately prior to the\nTermination Date, for the three year period following the Termination Date, and throughout the period of any applicable\nstatute of limitations.\n8. Executive Covenants.\nThis is an Exhibit B to, and forms a part of, the Aramark Agreement Relating to Employment and Post-\nEmployment Competition between Executive and Aramark (the “Management Committee Agreement”). This Exhibit\nshall not diminish in any way Executive’s rights under the terms of such Management Committee Agreement, except\nthat Executive’s receipt of benefits under this Exhibit is contingent upon Executive’s compliance in all material respects\nwith all of the terms and conditions of the Management Committee Agreement.\n9. Costs of Proceedings.\nEach party shall pay its own costs and expenses in connection with any legal proceeding (including\narbitration), relating to the interpretation or enforcement of any provision of this Exhibit, except that the Company shall\npay such costs and expenses, including attorneys’ fees and disbursements, of Executive if Executive prevails on a\nsubstantial portion of the claims in such proceeding.\n10. Assignment.\nExcept as otherwise provided herein, this Exhibit shall be binding upon, inure to the benefit of and be\nenforceable by the Company and Executive and their respective heirs, legal representatives, successors and assigns. If\nthe Company shall be merged into or consolidated\n18\nwith another entity, the provisions of this Exhibit shall be binding upon and inure to the benefit of the entity surviving\nsuch merger or resulting from such consolidation. The Company shall require any successor (whether direct or indirect,\nby purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company, by\nagreement, expressly to assume and agree to perform this Exhibit in the same manner and to the same extent that the\nCompany would be required to perform it if no such succession had taken place. The provisions of this Section 10 shall\ncontinue to apply to each subsequent employer of Executive hereunder in the event of any subsequent merger,\nconsolidation or transfer of assets of such subsequent employer.\n11. Withholding.\nNotwithstanding any other provision of this Exhibit, the Company may, to the extent required by law,\nwithhold applicable federal, state and local income and other taxes from any payments due to Executive hereunder.\n12. Applicable Law.\nThis Exhibit shall be governed by and construed in accordance with the laws of the Commonwealth of\nPennsylvania, without regard to conflicts of laws principles thereof.\n13. Notice.\nFor the purpose of this Exhibit, any notice and all other communication provided for in this Exhibit shall\nbe in writing and shall be deemed to have been duly given when delivered by hand or overnight courier or three days\nafter it has been mailed by United States registered mail, return receipt requested, postage prepaid, addressed to the\nrespective addresses set forth below, or to such other address as either party may have furnished to the other in writing in\naccordance herewith, except that notice of change of address shall be effective only upon receipt.\nIf to the Company:\nAramark\nAramark Tower\n1101 Market Street\nPhiladelphia, Pennsylvania 19107\nAttention: General Counsel\nIf to Executive:\nTo the most recent address of Executive set forth in the personnel records of the Company.\n14. Entire Agreement; Modification.\n19\nThis Exhibit constitutes the entire agreement between the parties and, except as expressly provided herein\nor in Article 6.E of the Management Committee Agreement or in any benefit plan of the Company or of any of its\naffiliates, supersedes all other prior agreements expressly concerning the effect of a Change of Control occurring after\nthe date of this Agreement with respect to the relationship between the Company and Executive. This Exhibit is not, and\nnothing herein shall be deemed to create, a contract of employment between the Company and Executive. This Exhibit\nmay be changed only by a written agreement executed by the Company and Executive.\n15. Severability.\nIn the event any one or more of the provisions of this Exhibit shall be or become invalid, illegal or\nunenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected\nthereby.\n20\nSchedule A\nCERTAIN DEFINITIONS\nAs used in this Exhibit, and unless the context requires a different meaning, the following terms, when\ncapitalized, have the meaning indicated:\n1.\n“Act” means the Securities Exchange Act of 1934, as amended.\n2.\n“Affiliate” shall have the meaning set forth in the Stockholders Agreement.\n3.\n“Base Salary” means Executive’s annual rate of base salary in effect on the date in question.\n4.\n“Bonus” means the amount payable to Executive under the Company’s applicable annual bonus plan with\nrespect to a fiscal year of the Company.\n5.\n“Cause” means “cause” as defined in the Management Committee Agreement of which this Schedule A\nforms a part.\n6.\n“Change of Control” means the first to occur of any of the following:\n(i) The acquisition by any individual entity or group, within the meaning of Section 13(d)(3) or 14(d)(2)\nof the Exchange Act, other than the Investor Groups and their Affiliates (the “Permitted Holders”), directly or indirectly,\nof beneficial ownership of equity securities of the Company representing more than 50% of the voting power of the then-\noutstanding equity securities of the Company entitled to vote generally in the election of directors (the “Company Voting\nSecurities”); provided, however, that for purposes of this subsection (i), the following shall not constitute a Change of\nControl: (A) any acquisition by the Company or any Sponsor Stockholder, (B) any acquisition by any employee benefit\nplan (or related trust) sponsored or maintained by the Company or any Subsidiary, or (C) any acquisition by any Person\npursuant to a transaction which complies with clauses (A) and (B) of subsection (ii) below; or\n(ii) The consummation of a reorganization, merger or consolidation or sale or other disposition of all or\nsubstantially all of the assets of the Company or the purchase of assets or stock of another entity (a “Business\nCombination”), in each case, unless immediately following such Business Combination, (A) all or substantially all of the\nbeneficial owners of the Company Voting Securities immediately prior to such Business Combination beneficially own\nmore than 50% of the then-outstanding combined voting power of the then-outstanding securities entitled to vote\ngenerally in the election of directors of the entity resulting from such Business Combination in substantially the same\nproportion (relative to each other) as their ownership immediately prior to such Business Combination of the Company\nVoting Securities, and (B) no Person (excluding the Permitted Holders) beneficially owns, directly or indirectly, more\nthan a majority of the combined voting power of the then-outstanding voting securities of such entity\n21\nexcept to the extent that such ownership of the Company existed prior to the Business Combination; or\n(iii) A majority of the members of the Company’s Board of Directors are replaced during any 12-month\nperiod by directors whose appointment or election is not endorsed by a majority of the current members of the\nCompany’s Board of Directors before such replacement or is not contemplated by the Stockholders Agreement as in\neffect on the date hereof.\nNotwithstanding paragraphs (i) through (iii) above, in no event will a Change of Control be deemed to\noccur if the Permitted Holders maintain a direct or indirect Controlling Interest in the Company. A “Controlling Interest”\nin an entity shall mean beneficial ownership of more than 50% of the voting power of the outstanding equity securities of\nthe entity.\n7.\n“Code” means the Internal Revenue Code of 1986, as amended.\n8.\n“Company” means Aramark or any of its parents and any successor or successors thereto.\n9.\n“Good Reason” means any of the following actions on or after a Change of Control, without Executive’s\nexpress prior written approval, other than due to Executive’s Permanent Disability or death:\n(a) any decrease in Base Salary or Target Bonus;\n(b) any decrease in Executive’s pension benefit opportunities or any material diminution in the\naggregate employee benefits, in each case, afforded to the Executive immediately prior to the Change of Control, but not\nincluding any such decrease or diminution that is inadvertent and that is cured within 30 days following written notice of\nsuch decrease or diminution by Executive to the Company;\n(c) any diminution in Executive’s title or reporting relationship, or substantial diminution in duties or\nresponsibilities (other than solely as a result of a Change of Control in which the Company immediately thereafter is no\nlonger publicly held); or\n(d) any relocation of Executive’s principal place of business of 35 miles or more, other than normal\ntravel consistent with past practice.\nExecutive shall have twelve months from the time Executive first becomes aware of the existence\nof Good Reason to resign for Good Reason.\nThe Executive must provide notice to the Company of the existence of the condition described above within a period not\nto exceed 90 days of the initial existence of the condition, upon the notice of which the Company shall have a period of\n30 days during which it may remedy the condition and not be required to pay the amount.\n22\n10.\n“Permanent Disability” means “permanent disability” as defined in the Company’s long-term disability plan\nas in effect from time to time, or if there shall be no plan, the inability of Executive to perform in all material respects\nExecutive’s duties and responsibilities to the Company or any affiliate for a period of six (6) consecutive months or for\nan aggregate of nine (9) months in any twenty-four (24) consecutive month period by reason of a physical or mental\nincapacity.\n11.\n“Permitted Holder” shall have the same meaning as set forth in the Stockholders Agreement.\n12.\n“Target Bonus” means the target Bonus established for Executive in respect of any given year, whether\nexpressed as a percentage of Base Salary or a dollar amount.\n23
f682ed5f189c012f7e85b39e9d574e86.pdf	effective_date jurisdiction party term	EX-99.D.7 18 c78736exv99wdw7.htm FORM OF CONFIDENTIALITY/NON-COMPETITION AGREEMENT\nCONFIDENTIALITY AND\nNON-COMPETITION AGREEMENT\nReference is made to the Acquisition Agreement, dated as of July 30, 2003 (the “Acquisition Agreement”), by and between Alloy, Inc., a\nDelaware corporation (“Parent”), Dodger Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of Parent (“Sub”), and\ndELiA*s Corp., a Delaware corporation (the “Company”), pursuant to which Parent and/or Sub will make a tender offer for all of the common stock\nof the Company following which Sub will be merged with and into the Company (the “Merger”) with the result that the Company will become a\nwholly-owned subsidiary of Parent. [\n] is a stockholder of the Company and, therefore, indirectly the principal owner of a significant portion\nof the goodwill of the Company being transferred to Parent pursuant to the terms of the Acquisition Agreement. [\n] is also an employee of\nthe Company and has unique knowledge of a highly sensitive nature regarding the Company, its business and its intellectual property, such that were\n[\n] to use such knowledge in competition with the Company or Parent, the value of the Company and its goodwill would be diminished\nmaterially. Accordingly, the Company shall pay to [\n]thesumof$[\n]. Capitalized terms used but not otherwise defined herein shall\nhave the meanings given them in the Acquisition Agreement.\nNOW, THEREFORE, in consideration of the sum referenced above, and for other good and valuable consideration, the receipt and sufficiency\nof which are hereby acknowledged, [\n] hereby agrees as follows:\nNon-Competition.\nDefinition of Competitive Business. For purposes of this Agreement, “Competitive Business” shall mean:\n(1) the sale, advertising and marketing of apparel, accessories, footwear, and bedding through direct sales (catalogue, internet and other\ndirect means) directed principally at people in the 10 to 24 year age group (“Generation Y Members”); and\n(2) the sale, advertising and marketing of apparel, accessories, footwear, and bedding through retail brick and mortar locations directed\nprincipally at Generation Y Members.\nNon-Competition. From the date hereof until January 31, 2006 (the “Non-Compete Period”), [\n] shall not, directly or indirectly,\nwithout the prior written consent of Parent, individually or in partnership with, as part of a joint venture with, or otherwise in conjunction in any\nother manner with any other Person:\nbe engaged in any manner whatsoever, including, without limitation, as an employer, employee, owner, partner, consultant, adviser,\nprincipal, agent, stockholder, member or proprietor, in any Competitive Business; or\nadvise, invest in, lend money to, guarantee the debts or obligations of, or otherwise have any other financial interest in any Competitive\nBusiness.\nNotwithstanding the foregoing, nothing herein shall be deemed to prohibit [\n] from engaging in Permitted Activities. For purposes of this\nAgreement, “Permitted Activities” shall mean (a) owning not more than 5% of the outstanding stock of a publicly-held company engaged in a\nCompetitive Business; (b) engaging, directly or indirectly, in any manner in any of the activities that are not within the definition of Competitive\nBusiness; and (c) becoming employed or engaged by an entity that is engaged in a Competitive Business but only if [\n] is not engaged, and\ndoes not participate in, either directly or indirectly, the Competitive Business. [\n] represents and warrants that his experiences and\ncapabilities are such that he can obtain employment in business engaged in other or different lines of business and that the enforcement of a remedy\nby way of injunction will not prevent him from earning a livelihood.\nTransition; Non-Interference. During the Non-Compete Period, [\n] shall not, directly or indirectly, take any action that is designed or\nintended to have the effect of discouraging any lessor, licensor, customer, supplier, or other business associate of the Company from maintaining the\nsame business relationships with the Company after the date hereof as it maintained with the Company prior to the date hereof.\nNon-Solicitation of Employees. [\n] acknowledges the importance to the businesses carried on by the Company, Parent and their\nsubsidiaries or affiliates of the human resources engaged by and developed by such party. Accordingly, [\n] covenants and agrees that, during\nthe Non-Compete Period, [\n] shall not, directly or indirectly, induce or solicit or assist any third party to induce, solicit or offer employment\nto any employee of the Company (each a “Protected Party”) or, in the case of employees and consultants, to terminate, interfere with, or materially\nalter any employment or consultancy arrangement with the Company. The parties acknowledge that placing advertisements soliciting employees of\nthe type then employed by the Company and Parent in newspapers, on Internet job sites or similar media generally accessible to the public shall not\nbe deemed to be a breach of this Section.\nConfidentiality. [\n] acknowledges that the Company and Parent have developed, used and maintained trade secrets and other\nconfidential and proprietary information including, without limitation, training materials, personnel information relating to their employees,\noperating procedures, marketing information directed at Generation Y Members, profit and loss information with respect to their retail business,\nselling strategies directed at Generation Y Members, retail customer lists, and retail customer information (the “Confidential Information”), and\nthe Company and Parent have taken, and shall continue to take, and expect [\n] to take during the Non-Compete Period, all commercially\nreasonable measures to protect the confidentiality of such Confidential Information. It is understood that for purposes of this Agreement,\n“Confidential Information” does not include (i) information that is in the public domain at the time of [\n]’s receipt thereof, (ii) otherwise\nbecomes public other than as a result of [\n]’s breach of his agreement hereunder, (iii) is rightfully received by [\n] from a third party\nwithout any obligation of confidentiality to the Company and/or Parent, (iv) is independently developed by [\n].\n[\n] acknowledges that during his involvement with the Company, he has had\n2\ndirect access to, and knowledge of, the Confidential Information, and [\n] further acknowledges that if he becomes employed or affiliated\nwith any competitor of the Company and/or Parent in violation of his obligations in Section 1 of this Agreement, it is possible that he would disclose\nthe Confidential Information to such competitor. [\n] hereby covenants and agrees that all such Confidential Information is and shall\nremain the sole property of the Company and/or, and that he will hold in strictest confidence, and will not disclose to any business, firm, entity or\nperson, either directly or indirectly, any of the Confidential Information during the Non-Compete Period. [\n] understands that the terms of\nthis paragraph are in addition to, and not in lieu of, any legal or other contractual obligations that [\n] may have relating to the protection\nof the Confidential Information. Notwithstanding the foregoing, [\n] shall not be prohibited from disclosing the Confidential Information\nin order, and only to the extent necessary, to comply with a valid court order, in which case [\n] shall give the Company and/or Parent five\n(5) days written notice prior to disclosing the Confidential Information, to the extent permitted by Court order.\nProvisions Necessary and Reasonable. The parties agree that (i) the provisions of Sections 1, 2 and 3 are necessary and reasonable to protect the\nConfidential Information and the goodwill of the Company and/or Parent; (ii) the specific time, geography and scope of the provisions set forth in\nSections 1, 2 and 3 are reasonable and necessary to protect the business interests of the Company and/or Parent; and (iii) in the event of a breach of\nany agreement set forth in Section 1, 2 or 3, the Company and/or Parent might suffer substantial irreparable harm and that the Company and/or\nParent might not have an adequate remedy at law for such breach. In recognition of the foregoing, the parties agree that in the event of a breach or\nthreatened breach of any of these covenants, in addition to such other remedies as the Company and/or Parent may have at law, without posting any\nbond or security or requirement for proof of actual damages, the Company and/or Parent shall be entitled to seek equitable relief, in the form of\nspecific performance, or temporary, preliminary or permanent injunctive relief, or any other equitable remedy which then may be available. The\nseeking of such injunction or order shall not affect the Company’s or Parent’s right to seek and obtain damages or other equitable relief on account of\nany such actual or threatened breach.\nGoverning Law; Choice of Venue. This Agreement has been negotiated and executed, is made and is to be performed in the State of New York,\nand shall be governed and construed in accordance with the laws of the State of New York, without regard to any otherwise applicable conflicts of\nlaws except as they may be preempted by, or in conflict with, any federal laws, rules, regulations or regulatory action. The parties agree that any\naction, demand, claim or counterclaim relating to the terms and provisions of this Agreement, or to its breach, shall be commenced in New York in a\ncourt of competent jurisdiction. The parties further acknowledge that venue shall lie exclusively in any state court of the State of New York or any\nFederal District Court located in New York.\nSeverability. The invalidity, illegality or unenforceability of any particular provision or part of any provision of this Agreement under any\napplicable law shall not affect the other provisions or parts thereof, which shall remain in full force and effect, and any such invalid, illegal or\nunenforceable provision or part thereof shall be deemed modified to the extent necessary to make it valid, legal or enforceable under any applicable\nlaw.\n3\nCounterparts. This Agreement may be executed in any number of counterparts, each of which for all purposes shall be deemed to be original\nand all of which taken together shall constitute one and the same instrument.\nEntire Agreement. This Agreement constitutes the entire agreement between and among the parties with respect to the subject matter hereof,\nrecites the sole consideration for the promises exchanged and supercedes any prior agreements with respect to the subject matter hereof. In reaching\nthis Agreement, neither party has relied upon any representation or promise except those set forth herein.\nAmendment and Waiver. The terms of this Agreement may not be modified, waived, changed, discharged or terminated, except by an\nagreement in writing signed by the party against whom or which such modification, waiver, change, discharge or termination is sought to be\nenforced. No term or condition of this Agreement shall be deemed to have been waived, nor shall there by any estoppel against enforcement of any\nprovision of this Agreement, except by written instrument of the party charged with such waiver or estoppel. No such written waiver shall be deemed\na continuing waiver unless specifically stated therein, and each such waiver shall operate only as to the specific term or condition waived and shall\nnot constitute a waiver of such term or condition for the future or as to any act other than that specifically waived.\nConstruction. The parties agree that the terms and conditions of this Agreement are the result of negotiations between the parties and/or their\ncounsel, and that this Agreement shall not be construed in favor of or against either party by reason of the extent to which either party or its counsel\nparticipated in the drafting of this Agreement.\nNotices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed given if delivered\npersonally or sent by overnight courier (providing proof of delivery) to the parties at the following addresses (or at such other address for a party as\nshall be specified by like notice):\n(a) To[\n], at:\n[\n]\nc/o dELiA*s Corp.\n151 West 26th Street\nNew York, New York 10001\n(b) To the Company, at:\ndELiA*s Corp.\n151 West 26th Street\nNew York, New York 10001\nAttention: General Counsel\n4\nWith copies to:\nAlloy, Inc.\n151 West 26th Street\nNew York, New York 10001\nAttention: General Counsel\nand\nKatten Muchin Zavis Rosenman\n1025 Thomas Jefferson Street, NW\nSuite 700 East Lobby\nWashington, DC 20007\nAttention: Richard M. Graf\nSuccessors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and any of their successors and\nassigns. In addition, the Company and/or Parent may assign their rights and obligations hereunder to any of its or their affiliates or to the purchaser\nof or successor to (i) all or a significant portion of the Company’s business or assets, or (ii) that aspect of the Company’s business in which\n[\n] is principally involved in, in each case whether by way of merger, stock sale, asset sale or otherwise, provided that no such assignment\nshall relieve or excuse the Company from its obligation to pay [\n] under this Agreement. Except as set forth in the prior sentence, this\nAgreement may not be assignable by any party hereto without the prior written consent of the other parties.\nCaptions. The captions in this Agreement are for convenience only and shall not be construed to affect the meaning of any provisions herein.\nKnowing and Voluntary Execution. [\n] acknowledges that he has read and fully understands the terms of this Agreement, that he\nobtained legal advice in connection with this Agreement, and that he is signing it knowingly and voluntarily.\nIN WITNESS WHEREOF, the parties hereto have caused this Non-Competition and Confidentiality Agreement to be executed and delivered on\nthe date first above written.\n[\n]\nAgreed to and Accepted:\nALLOY, INC.\nPrint Name:\nTitle:\n5\nDELIA*S CORP.\nPrint Name:\nTitle:\nDate:\n6\nExhibit A\nPursuant to the Confidentiality and Non-Competition Agreement by and between Stephen I. Kahn and the Surviving Corporation, Mr. Kahn will\nreceive a payment from the Surviving Corporation in the sum of $450,000, payable $100,000 in the first year and the balance to be paid in equal\ninstallments payable over five years.\nPursuant to the Confidentiality and Non-Competition Agreement by and between Evan Guillemin and the Surviving Corporation, Mr. Guillemin\nwill receive a payment from the Surviving Corporation in the sum of $100,000, payable $50,000 on or before January 31, 2005 and $50,000 on or\nbefore January 31, 2006.\nPursuant to the Confidentiality and Non-Competition Agreement by and between Christopher C. Edgar and the Surviving Corporation,\nMr. Edgar will receive a payment from the Surviving Corporation in a lump sum amount of $50,000.	EX-99.D.7 18 c78736exv99wdw7.htm FORM OF CONFIDENTIALITY/NON-COMPETITION AGREEMENT\nCONFIDENTIALITY AND\nNON-COMPETITION AGREEMENT\nReference is made to the Acquisition Agreement, dated as of July 30, 2003 (the “Acquisition Agreement”), by and between Alloy, Inc., a\nDelaware corporation (“Parent”), Dodger Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of Parent (“Sub”), and\ndELiA*s Corp., a Delaware corporation (the “Company”), pursuant to which Parent and/or Sub will make a tender offer for all of the common stock\nof the Company following which Sub will be merged with and into the Company (the “Merger”) with the result that the Company will become a\nwholly-owned subsidiary of Parent. [ ]is a stockholder of the Company and, therefore, indirectly the principal owner of a significant portion\nof the goodwill of the Company being transferred to Parent pursuant to the terms of the Acquisition Agreement. [ ]is also an employee of\nthe Company and has unique knowledge of a highly sensitive nature regarding the Company, its business and its intellectual property, such that were\n[ ] to use such knowledge in competition with the Company or Parent, the value of the Company and its goodwill would be diminished\nmaterially. Accordingly, the Company shall pay to [ ] the sum of $[ ]. Capitalized terms used but not otherwise defined herein shall\nhave the meanings given them in the Acquisition Agreement.\nNOW, THEREFORE, in consideration of the sum referenced above, and for other good and valuable consideration, the receipt and sufficiency\nof which are hereby acknowledged, [ ] hereby agrees as follows:\nNon-Competition.\nDefinition of Competitive Business. For purposes of this Agreement, “Competitive Business” shall mean:\nD the sale, advertising and marketing of apparel, accessories, footwear, and bedding through direct sales (catalogue, internet and other\ndirect means) directed principally at people in the 10 to 24 year age group (“Generation Y Members™); and\n) the sale, advertising and marketing of apparel, accessories, footwear, and bedding through retail brick and mortar locations directed\nprincipally at Generation Y Members.\nNon-Competition. From the date hereof until January 31, 2006 (the “Non-Compete Period”), [ ] shall not, directly or indirectly,\nwithout the prior written consent of Parent, individually or in partnership with, as part of a joint venture with, or otherwise in conjunction in any\nother manner with any other Person:\nbe engaged in any manner whatsoever, including, without limitation, as an employer, employee, owner, partner, consultant, adviser,\nprincipal, agent, stockholder, member or proprietor, in any Competitive Business; or\nadvise, invest in, lend money to, guarantee the debts or obligations of, or otherwise have any other financial interest in any Competitive\nBusiness.\nNotwithstanding the foregoing, nothing herein shall be deemed to prohibit [ ] from engaging in Permitted Activities. For purposes of this\nAgreement, “Permitted Activities” shall mean (a) owning not more than 5% of the outstanding stock of a publicly-held company engaged in a\nCompetitive Business; (b) engaging, directly or indirectly, in any manner in any of the activities that are not within the definition of Competitive\nBusiness; and (c) becoming employed or engaged by an entity that is engaged in a Competitive Business but only if [ ] is not engaged, and\ndoes not participate in, either directly or indirectly, the Competitive Business. [ ] represents and warrants that his experiences and\ncapabilities are such that he can obtain employment in business engaged in other or different lines of business and that the enforcement of a remedy\nby way of injunction will not prevent him from earning a livelihood.\nTransition; Non-Interference. During the Non-Compete Period, [ ] shall not, directly or indirectly, take any action that is designed or\nintended to have the effect of discouraging any lessor, licensor, customer, supplier, or other business associate of the Company from maintaining the\nsame business relationships with the Company after the date hereof as it maintained with the Company prior to the date hereof.\nNon-Solicitation of Employees. [ ] acknowledges the importance to the businesses carried on by the Company, Parent and their\nsubsidiaries or affiliates of the human resources engaged by and developed by such party. Accordingly, [ ] covenants and agrees that, during\nthe Non-Compete Period, [ ] shall not, directly or indirectly, induce or solicit or assist any third party to induce, solicit or offer employment\nto any employee of the Company (each a “Protected Party”) or, in the case of employees and consultants, to terminate, interfere with, or materially\nalter any employment or consultancy arrangement with the Company. The parties acknowledge that placing advertisements soliciting employees of\nthe type then employed by the Company and Parent in newspapers, on Internet job sites or similar media generally accessible to the public shall not\nbe deemed to be a breach of this Section.\nConfidentiality. [ ] acknowledges that the Company and Parent have developed, used and maintained trade secrets and other\nconfidential and proprietary information including, without limitation, training materials, personnel information relating to their employees,\noperating procedures, marketing information directed at Generation Y Members, profit and loss information with respect to their retail business,\nselling strategies directed at Generation Y Members, retail customer lists, and retail customer information (the “Confidential Information”), and\nthe Company and Parent have taken, and shall continue to take, and expect [ ] to take during the Non-Compete Period, all commercially\nreasonable measures to protect the confidentiality of such Confidential Information. It is understood that for purposes of this Agreement,\n“Confidential Information” does not include (i) information that is in the public domain at the time of [ I’s receipt thereof, (ii) otherwise\nbecomes public other than as a result of [ 1’s breach of his agreement hereunder, (iii) is rightfully received by [ ] from a third party\nwithout any obligation of confidentiality to the Company and/or Parent, (iv) is independently developed by [ 1.\n[ ] acknowledges that during his involvement with the Company, he has had\n2\n \ndirect access to, and knowledge of, the Confidential Information, and [ ] further acknowledges that if he becomes employed or affiliated\nwith any competitor of the Company and/or Parent in violation of his obligations in Section 1 of this Agreement, it is possible that he would disclose\nthe Confidential Information to such competitor. [ ] hereby covenants and agrees that all such Confidential Information is and shall\nremain the sole property of the Company and/or, and that he will hold in strictest confidence, and will not disclose to any business, firm, entity or\nperson, either directly or indirectly, any of the Confidential Information during the Non-Compete Period. [ ] understands that the terms of\nthis paragraph are in addition to, and not in lieu of, any legal or other contractual obligations that [ ] may have relating to the protection\nof the Confidential Information. Notwithstanding the foregoing, [ ] shall not be prohibited from disclosing the Confidential Information\nin order, and only to the extent necessary, to comply with a valid court order, in which case [ ] shall give the Company and/or Parent five\n(5) days written notice prior to disclosing the Confidential Information, to the extent permitted by Court order.\nProvisions Necessary and Reasonable. The parties agree that (i) the provisions of Sections 1, 2 and 3 are necessary and reasonable to protect the\nConfidential Information and the goodwill of the Company and/or Parent; (ii) the specific time, geography and scope of the provisions set forth in\nSections 1, 2 and 3 are reasonable and necessary to protect the business interests of the Company and/or Parent; and (iii) in the event of a breach of\nany agreement set forth in Section 1, 2 or 3, the Company and/or Parent might suffer substantial irreparable harm and that the Company and/or\nParent might not have an adequate remedy at law for such breach. In recognition of the foregoing, the parties agree that in the event of a breach or\nthreatened breach of any of these covenants, in addition to such other remedies as the Company and/or Parent may have at law, without posting any\nbond or security or requirement for proof of actual damages, the Company and/or Parent shall be entitled to seek equitable relief, in the form of\nspecific performance, or temporary, preliminary or permanent injunctive relief, or any other equitable remedy which then may be available. The\nseeking of such injunction or order shall not affect the Company’s or Parent’s right to seek and obtain damages or other equitable relief on account of\nany such actual or threatened breach.\nGoverning Law; Choice of Venue. This Agreement has been negotiated and executed, is made and is to be performed in the State of New York,\nand shall be governed and construed in accordance with the laws of the State of New York, without regard to any otherwise applicable conflicts of\nlaws except as they may be preempted by, or in conflict with, any federal laws, rules, regulations or regulatory action. The parties agree that any\naction, demand, claim or counterclaim relating to the terms and provisions of this Agreement, or to its breach, shall be commenced in New York in a\ncourt of competent jurisdiction. The parties further acknowledge that venue shall lie exclusively in any state court of the State of New York or any\nFederal District Court located in New York.\nSeverability. The invalidity, illegality or unenforceability of any particular provision or part of any provision of this Agreement under any\napplicable law shall not affect the other provisions or parts thereof, which shall remain in full force and effect, and any such invalid, illegal or\nunenforceable provision or part thereof shall be deemed modified to the extent necessary to make it valid, legal or enforceable under any applicable\nlaw.\nCounterparts. This Agreement may be executed in any number of counterparts, each of which for all purposes shall be deemed to be original\nand all of which taken together shall constitute one and the same instrument.\nEntire Agreement. This Agreement constitutes the entire agreement between and among the parties with respect to the subject matter hereof,\nrecites the sole consideration for the promises exchanged and supercedes any prior agreements with respect to the subject matter hereof. In reaching\nthis Agreement, neither party has relied upon any representation or promise except those set forth herein.\nAmendment and Waiver. The terms of this Agreement may not be modified, waived, changed, discharged or terminated, except by an\nagreement in writing signed by the party against whom or which such modification, waiver, change, discharge or termination is sought to be\nenforced. No term or condition of this Agreement shall be deemed to have been waived, nor shall there by any estoppel against enforcement of any\nprovision of this Agreement, except by written instrument of the party charged with such waiver or estoppel. No such written waiver shall be deemed\na continuing waiver unless specifically stated therein, and each such waiver shall operate only as to the specific term or condition waived and shall\nnot constitute a waiver of such term or condition for the future or as to any act other than that specifically waived.\nConstruction. The parties agree that the terms and conditions of this Agreement are the result of negotiations between the parties and/or their\ncounsel, and that this Agreement shall not be construed in favor of or against either party by reason of the extent to which either party or its counsel\nparticipated in the drafting of this Agreement.\nNotices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed given if delivered\npersonally or sent by overnight courier (providing proof of delivery) to the parties at the following addresses (or at such other address for a party as\nshall be specified by like notice):\n(a) To [ ], at:\n[ ]\nc/o dELiA*s Corp.\n151 West 26th Street\nNew York, New York 10001\n(b) To the Company, at:\ndELiA*s Corp.\n151 West 26th Street\nNew York, New York 10001\nAttention: General Counsel\n \nWith copies to:\nAlloy, Inc.\n151 West 26th Street\nNew York, New York 10001\nAttention: General Counsel\nand\nKatten Muchin Zavis Rosenman\n1025 Thomas Jefferson Street, NW\nSuite 700 East Lobby\nWashington, DC 20007\nAttention: Richard M. Graf\nSuccessors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and any of their successors and\nassigns. In addition, the Company and/or Parent may assign their rights and obligations hereunder to any of its or their affiliates or to the purchaser\nof or successor to (i) all or a significant portion of the Company’s business or assets, or (ii) that aspect of the Company’s business in which\n[ ] is principally involved in, in each case whether by way of merger, stock sale, asset sale or otherwise, provided that no such assignment\nshall relieve or excuse the Company from its obligation to pay [ ] under this Agreement. Except as set forth in the prior sentence, this\nAgreement may not be assignable by any party hereto without the prior written consent of the other parties.\nCaptions. The captions in this Agreement are for convenience only and shall not be construed to affect the meaning of any provisions herein.\nKnowing and Voluntary Execution. [ ] acknowledges that he has read and fully understands the terms of this Agreement, that he\nobtained legal advice in connection with this Agreement, and that he is signing it knowingly and voluntarily.\nIN WITNESS WHEREOF, the parties hereto have caused this Non-Competition and Confidentiality Agreement to be executed and delivered on\nthe date first above written.\nAgreed to and Accepted:\nALLQY, INC.\nPrint Name:\nTitle:\nDELIA*S CORP.\nPrint Name:\nTitle:\nDate:\nExhibit A\nPursuant to the Confidentiality and Non-Competition Agreement by and between Stephen 1. Kahn and the Surviving Corporation, Mr. Kahn will\nreceive a payment from the Surviving Corporation in the sum of $450,000, payable $100,000 in the first year and the balance to be paid in equal\ninstallments payable over five years.\nPursuant to the Confidentiality and Non-Competition Agreement by and between Evan Guillemin and the Surviving Corporation, Mr. Guillemin\nwill receive a payment from the Surviving Corporation in the sum of $100,000, payable $50,000 on or before January 31, 2005 and $50,000 on or\nbefore January 31, 2006.\nPursuant to the Confidentiality and Non-Competition Agreement by and between Christopher C. Edgar and the Surviving Corporation,\nMr. Edgar will receive a payment from the Surviving Corporation in a lump sum amount of $50,000.	EX-99.D.7 18 c78736exv99wdw7.htm FORM OF CONFIDENTIALITYNON-COMPETITION AGREEMENT\nCONFIDENTIALITY AND\nNON-COMPETITION AGREEMENT\nReference is made to the Acquisition Agreement, dated as of July 30, 2003 (the "Acquisition Agreement"), by and between Alloy, Inc., a\nDelaware corporation ("Parent"), Dodger Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of Parent ("Sub"), and\ndELiA*s Corp., a Delaware corporation (the "Company"), pursuant to which Parent and/or Sub will make a tender offer for all of the common stock\nof the Company following which Sub will be merged with and into the Company (the "Merger") with the result that the Company will become a\nwholly-owned subsidiary of Parent. [\n1 is a stockholder of the Company and, therefore, indirectly the principal owner of a significant portion\nof the goodwill of the Company being transferred to Parent pursuant to the terms of the Acquisition Agreement. [\n1 is also an employee of\nthe Company and has unique knowledge of a highly sensitive nature regarding the Company, its business and its intellectual property, such that were\n[\n1 to use such knowledge in competition with the Company or Parent, the value of the Company and its goodwill would be diminished\nmaterially. Accordingly, the Company shall pay to [\n] the sum of $[\n]. Capitalized terms used but not otherwise defined herein shall\nhave the meanings given them in the Acquisition Agreement.\nNOW, THEREFORE, in consideration of the sum referenced above, and for other good and valuable consideration, the receipt and sufficiency\nof which are hereby acknowledged, [\n1 hereby agrees as follows:\nNon-Competition.\nDefinition of Competitive Business. For purposes of this Agreement, "Competitive Business" shall mean:\n(1)\nthe sale, advertising and marketing of apparel, accessories, footwear, and bedding through direct sales (catalogue, internet and other\ndirect means) directed principally at people in the 10 to 24 year age group ("Generation Y Members"); and\n(2)\nthe sale, advertising and marketing of apparel, accessories, footwear, and bedding through retail brick and mortar locations directed\nprincipally at Generation Y Members.\nNon-Competition. From the date hereof until January 31, 2006 (the "Non-Compete Period"), [\n1 shall not, directly or indirectly,\nwithout the prior written consent of Parent, individually or in partnership with, as part of a joint venture with, or otherwise in conjunction in any\nother manner with any other Person:\nbe engaged in any manner whatsoever, including, without limitation, as an employer, employee, owner, partner, consultant, adviser,\nprincipal, agent, stockholder, member or proprietor, in any Competitive Business; or\nadvise, invest in, lend money to, guarantee the debts or obligations of, or otherwise have any other financial interest in any Competitive\nBusiness.\nNotwithstanding the foregoing, nothing herein shall be deemed to prohibit [\nfrom engaging in Permitted Activities. For purposes of this\nAgreement, "Permitted Activities" shall mean (a) owning not more than 5% of the outstanding stock of a publicly-held company engaged in\na\nCompetitive Business; (b) engaging, directly or indirectly, in any manner in any of the activities that are not within the definition of Competitive\nBusiness; and (c) becoming employed or engaged by an entity that is engaged in a Competitive Business but only if [\n1 is not engaged, and\ndoes not participate in, either directly or indirectly, the Competitive Business. [\n1\nrepresents and warrants that his experiences and\ncapabilities are such that he can obtain employment in business engaged in other or different lines of business and that the enforcement of a remedy\nby way of injunction will not prevent him from earning a livelihood.\nTransition; Non-Interference. During the Non-Compete Period,\n1 shall not, directly or indirectly, take any action that is designed or\nintended to have the effect of discouraging any lessor, licensor, customer, supplier, or other business associate of the Company from maintaining the\nsame business relationships with the Company after the date hereof as it maintained with the Company prior to the date hereof.\nNon-Solicitation of Employees. [\n1 acknowledges the importance to the businesses carried on by the Company, Parent and their\nsubsidiaries or affiliates of the human resources engaged by and developed by such party. Accordingly, [\n1\ncovenants and agrees that, during\nthe Non-Compete Period, [\n1 shall not, directly or indirectly, induce or solicit or assist any third party to induce, solicit or offer employment\nto any employee of the Company (each a "Protected Party") or, in the case of employees and consultants, to terminate, interfere with, or materially\nalter\nany\nemployment or consultancy arrangement with the Company. The parties acknowledge that placing advertisements soliciting employees of\nthe type then employed by the Company and Parent in newspapers, on Internet job sites or similar media generally accessible to the public shall not\nbe deemed to be a breach of this Section.\nConfidentiality. [\n1 acknowledges that the Company and Parent have developed, used and maintained trade secrets and other\nconfidential and proprietary information including, without limitation, training materials, personnel information relating to their employees,\noperating procedures, marketing information directed at Generation Y Members, profit and loss information with respect to their retail business,\nselling strategies directed at Generation Y Members, retail customer lists, and retail customer information (the "Confidential Information"), and\nthe Company and Parent have taken, and shall continue to take, and expect 1 to take during the Non-Compete Period, all commercially\nreasonable measures to protect the confidentiality of such Confidential Information. It is understood that for purposes of this Agreement,\n"Confidential Information" does not include (i) information that is in the public domain at the time of [\nI's receipt thereof, (ii) otherwise\nbecomes public other than as a result of [\nI's breach of his agreement hereunder, (iii) is rightfully received by E\n1 from a third party\nwithout any obligation of confidentiality to the Company and/or Parent, (iv) is independently developed by [\n].\nacknowledges that during his involvement with the Company, he has had\n2\ndirect access to, and knowledge of, the Confidential Information, and\nfurther acknowledges that if he becomes employed or affiliated\nwith any competitor of the Company and/or Parent in violation of his obligations in Section 1 of this Agreement, it is possible that he would disclose\nthe Confidential Information to such competitor. [\n1 hereby covenants and agrees that all such Confidential Information is and shall\nremain the sole property of the Company and/or, and that he will hold in strictest confidence, and will not disclose to any business, firm, entity or\nperson, either directly or indirectly, any of the Confidential Information during the Non-Compete Period. [\n1 understands that the terms of\nthis paragraph are in addition to, and not in lieu of, any legal or other contractual obligations that\n]\nmay have relating to the protection\nof the Confidential Information. Notwithstanding the foregoing, [\n1 shall not be prohibited from disclosing the Confidential Information\nin order, and only to the extent necessary, to comply with a valid court order, in which case I\n1 shall give the Company and/or Parent five\n(5) days written notice prior to disclosing the Confidential Information, to the extent permitted by Court order.\nProvisions Necessary and Reasonable The parties agree that (i) the provisions of Sections 1, 2 and 3 are necessary and reasonable to protect the\nConfidential Information and the goodwill of the Company and/or Parent; (ii) the specific time, geography and scope of the provisions set forth in\nSections 1, 2 and 3 are reasonable and necessary to protect the business interests of the Company and/or Parent; and (iii) in the event of a breach\nof\nany\nagreement set forth in Section 1, 2 or 3, the Company and/or Parent might suffer substantial irreparable harm and that the Company and/or\nParent might not have an adequate remedy at law for such breach. In recognition of the foregoing, the parties agree that in the event of a breach or\nthreatened breach of any of these covenants, in addition to such other remedies as the Company and/or Parent may have at law, without posting any\nbond or security or requirement for proof of actual damages, the Company and/or Parent shall be entitled to seek equitable relief, in the form\nof\nspecific performance, or temporary, preliminary or permanent injunctive relief, or any other equitable remedy which then may be available. The\nseeking of such injunction or order shall not affect the Company's or Parent's right to seek and obtain damages or other equitable relief on account\nof\nany such actual or threatened breach.\nGoverning Law; Choice of Venue. This Agreement has been negotiated and executed, is made and is to be performed in the State of New York,\nand\nshall\nbe governed and construed in accordance with the laws of the State of New York, without regard to any otherwise applicable conflicts of\nlaws except as they may be preempted by, or in conflict with, any federal laws, rules, regulations or regulatory action. The parties agree that any\naction, demand, claim or counterclaim relating to the terms and provisions of this Agreement, or to its breach, shall be commenced in New York in\na\ncourt of competent jurisdiction. The parties further acknowledge that venue shall lie exclusively in any state court of the State of New York or any\nFederal District Court located in New York.\nSeverability. The invalidity, illegality or unenforceability of any particular provision or part of any provision of this Agreement under any\napplicable law shall not affect the other provisions or parts thereof, which shall remain in full force and effect, and any such invalid, illegal or\nunenforceable provision or part thereof shall be deemed modified to the extent necessary to make it valid, legal or enforceable under any applicable\nlaw.\n3\nCounterparts. This Agreement may be executed in any number of counterparts, each of which for all purposes shall be deemed to be original\nand all of which taken together shall constitute one and the same instrument.\nEntire Agreement. This Agreement constitutes the entire agreement between and among the parties with respect to the subject matter hereof,\nrecites the sole consideration for the promises exchanged and supercedes any prior agreements with respect to the subject matter hereof. In reaching\nthis Agreement, neither party has relied upon any representation or promise except those set forth herein.\nAmendment and Waiver. The terms of this Agreement may not be modified, waived, changed, discharged or terminated, except by an\nagreement in writing signed by the party against whom or which such modification, waiver, change, discharge or termination is sought to be\nenforced. No term or condition of this Agreement shall be deemed to have been waived, nor shall there by any estoppel against enforcement of any\nprovision of this Agreement, except by written instrument of the party charged with such waiver or estoppel. No such written waiver shall be deemed\na\ncontinuing waiver unless specifically stated therein, and each such waiver shall operate only as to the specific term or condition waived and shall\nnot constitute a waiver of such term or condition for the future or as to any act other than that specifically waived.\nConstruction. The parties agree that the terms and conditions of this Agreement are the result of negotiations between the parties and/or their\ncounsel, and that this Agreement shall not be construed in favor of or against either party by reason of the extent to which either party or its counsel\nparticipated in the drafting of this Agreement.\nNotices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed given if delivered\npersonally or sent by overnight courier (providing proof of delivery) to the parties at the following addresses (or at such other address for a party as\nshall be specified by like notice):\n(a)\nTo E\n], at:\n[\n1\nc/o dELiA*s Corp.\n151 West 26th Street\nNew York, New York 10001\n(b)\nTo the Company, at:\ndELiA**s Corp.\n151 West 26th Street\nNew York, New York 10001\nAttention: General Counsel\n4\nWith copies to:\nAlloy, Inc.\n151 West 26th Street\nNew York, New York 10001\nAttention: General Counsel\nand\nKatten Muchin Zavis Rosenman\n1025 Thomas Jefferson Street, NW\nSuite 700 East Lobby\nWashington, DC 20007\nAttention: Richard M. Graf\nSuccessors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and any of their successors and\nassigns. In addition, the Company and/or Parent may assign their rights and obligations hereunder to any of its or their affiliates or to the purchaser\nof\nor successor to (i) all or a significant portion of the Company's business or assets, or (ii) that aspect of the Company's business in which\n[\nis principally involved in, in each case whether by way of merger, stock sale, asset sale or otherwise, provided that no such assignment\nshall relieve or excuse the Company from its obligation to pay [ 1 under this Agreement Except as set forth in the prior sentence, this\nAgreement may not be assignable by any party hereto without the prior written consent of the other parties.\nCaptions. The captions in this Agreement are for convenience only and shall not be construed to affect the meaning of any provisions herein.\nKnowing and Voluntary Execution. [\n1 acknowledges that he has read and fully understands the terms of this Agreement, that he\nobtained legal advice in connection with this Agreement, and that he is signing it knowingly and voluntarily.\nIN WITNESS WHEREOF, the parties hereto have caused this Non-Competition and Confidentiality Agreement to be executed and delivered on\nthe date first above written.\n[\n]\nAgreed to and Accepted:\nALLOY, INC.\nPrint Name:\nTitle:\n5\nDELIA*S CORP.\nPrint Name:\nTitle:\nDate:\n6\nExhibit A\nPursuant to the Confidentiality and Non-Competition Agreement by and between Stephen I. Kahn and the Surviving Corporation, Mr. Kahn will\nreceive a payment from the Surviving Corporation in the sum of $450,000, payable $100,000 in the first year and the balance to be paid in equal\ninstallments payable over five years.\nPursuant to the Confidentiality and Non-Competition Agreement by and between Evan Guillemin and the Surviving Corporation, Mr. Guillemin\nwill receive a payment from the Surviving Corporation in the sum of $100,000, payable $50,000 on or before January 31, 2005 and $50,000 on or\nbefore January 31, 2006.\nPursuant to the Confidentiality and Non-Competition Agreement by and between Christopher C. Edgar and the Surviving Corporation,\nMr. Edgar will receive a payment from the Surviving Corporation in a lump sum amount of $50,000.	EX-99.D.7 18 c78736exv99wdw7.htm FORM OF CONFIDENTIALITY/NON-COMPETITION AGREEMENT\nCONFIDENTIALITY AND\nNON-COMPETITION AGREEMENT\nReference is made to the Acquisition Agreement, dated as of July 30, 2003 (the “Acquisition Agreement”), by and between Alloy, Inc., a\nDelaware corporation (“Parent”), Dodger Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of Parent (“Sub”), and\ndELiA*s Corp., a Delaware corporation (the “Company”), pursuant to which Parent and/or Sub will make a tender offer for all of the common stock\nof the Company following which Sub will be merged with and into the Company (the “Merger”) with the result that the Company will become a\nwholly-owned subsidiary of Parent. [\n] is a stockholder of the Company and, therefore, indirectly the principal owner of a significant portion\nof the goodwill of the Company being transferred to Parent pursuant to the terms of the Acquisition Agreement. [\n] is also an employee of\nthe Company and has unique knowledge of a highly sensitive nature regarding the Company, its business and its intellectual property, such that were\n[\n] to use such knowledge in competition with the Company or Parent, the value of the Company and its goodwill would be diminished\nmaterially. Accordingly, the Company shall pay to [\n]thesumof$[\n]. Capitalized terms used but not otherwise defined herein shall\nhave the meanings given them in the Acquisition Agreement.\nNOW, THEREFORE, in consideration of the sum referenced above, and for other good and valuable consideration, the receipt and sufficiency\nof which are hereby acknowledged, [\n] hereby agrees as follows:\nNon-Competition.\nDefinition of Competitive Business. For purposes of this Agreement, “Competitive Business” shall mean:\n(1) the sale, advertising and marketing of apparel, accessories, footwear, and bedding through direct sales (catalogue, internet and other\ndirect means) directed principally at people in the 10 to 24 year age group (“Generation Y Members”); and\n(2) the sale, advertising and marketing of apparel, accessories, footwear, and bedding through retail brick and mortar locations directed\nprincipally at Generation Y Members.\nNon-Competition. From the date hereof until January 31, 2006 (the “Non-Compete Period”), [\n] shall not, directly or indirectly,\nwithout the prior written consent of Parent, individually or in partnership with, as part of a joint venture with, or otherwise in conjunction in any\nother manner with any other Person:\nbe engaged in any manner whatsoever, including, without limitation, as an employer, employee, owner, partner, consultant, adviser,\nprincipal, agent, stockholder, member or proprietor, in any Competitive Business; or\nadvise, invest in, lend money to, guarantee the debts or obligations of, or otherwise have any other financial interest in any Competitive\nBusiness.\nNotwithstanding the foregoing, nothing herein shall be deemed to prohibit [\n] from engaging in Permitted Activities. For purposes of this\nAgreement, “Permitted Activities” shall mean (a) owning not more than 5% of the outstanding stock of a publicly-held company engaged in a\nCompetitive Business; (b) engaging, directly or indirectly, in any manner in any of the activities that are not within the definition of Competitive\nBusiness; and (c) becoming employed or engaged by an entity that is engaged in a Competitive Business but only if [\n] is not engaged, and\ndoes not participate in, either directly or indirectly, the Competitive Business. [\n] represents and warrants that his experiences and\ncapabilities are such that he can obtain employment in business engaged in other or different lines of business and that the enforcement of a remedy\nby way of injunction will not prevent him from earning a livelihood.\nTransition; Non-Interference. During the Non-Compete Period, [\n] shall not, directly or indirectly, take any action that is designed or\nintended to have the effect of discouraging any lessor, licensor, customer, supplier, or other business associate of the Company from maintaining the\nsame business relationships with the Company after the date hereof as it maintained with the Company prior to the date hereof.\nNon-Solicitation of Employees. [\n] acknowledges the importance to the businesses carried on by the Company, Parent and their\nsubsidiaries or affiliates of the human resources engaged by and developed by such party. Accordingly, [\n] covenants and agrees that, during\nthe Non-Compete Period, [\n] shall not, directly or indirectly, induce or solicit or assist any third party to induce, solicit or offer employment\nto any employee of the Company (each a “Protected Party”) or, in the case of employees and consultants, to terminate, interfere with, or materially\nalter any employment or consultancy arrangement with the Company. The parties acknowledge that placing advertisements soliciting employees of\nthe type then employed by the Company and Parent in newspapers, on Internet job sites or similar media generally accessible to the public shall not\nbe deemed to be a breach of this Section.\nConfidentiality. [\n] acknowledges that the Company and Parent have developed, used and maintained trade secrets and other\nconfidential and proprietary information including, without limitation, training materials, personnel information relating to their employees,\noperating procedures, marketing information directed at Generation Y Members, profit and loss information with respect to their retail business,\nselling strategies directed at Generation Y Members, retail customer lists, and retail customer information (the “Confidential Information”), and\nthe Company and Parent have taken, and shall continue to take, and expect [\n] to take during the Non-Compete Period, all commercially\nreasonable measures to protect the confidentiality of such Confidential Information. It is understood that for purposes of this Agreement,\n“Confidential Information” does not include (i) information that is in the public domain at the time of [\n]’s receipt thereof, (ii) otherwise\nbecomes public other than as a result of [\n]’s breach of his agreement hereunder, (iii) is rightfully received by [\n] from a third party\nwithout any obligation of confidentiality to the Company and/or Parent, (iv) is independently developed by [\n].\n[\n] acknowledges that during his involvement with the Company, he has had\n2\ndirect access to, and knowledge of, the Confidential Information, and [\n] further acknowledges that if he becomes employed or affiliated\nwith any competitor of the Company and/or Parent in violation of his obligations in Section 1 of this Agreement, it is possible that he would disclose\nthe Confidential Information to such competitor. [\n] hereby covenants and agrees that all such Confidential Information is and shall\nremain the sole property of the Company and/or, and that he will hold in strictest confidence, and will not disclose to any business, firm, entity or\nperson, either directly or indirectly, any of the Confidential Information during the Non-Compete Period. [\n] understands that the terms of\nthis paragraph are in addition to, and not in lieu of, any legal or other contractual obligations that [\n] may have relating to the protection\nof the Confidential Information. Notwithstanding the foregoing, [\n] shall not be prohibited from disclosing the Confidential Information\nin order, and only to the extent necessary, to comply with a valid court order, in which case [\n] shall give the Company and/or Parent five\n(5) days written notice prior to disclosing the Confidential Information, to the extent permitted by Court order.\nProvisions Necessary and Reasonable. The parties agree that (i) the provisions of Sections 1, 2 and 3 are necessary and reasonable to protect the\nConfidential Information and the goodwill of the Company and/or Parent; (ii) the specific time, geography and scope of the provisions set forth in\nSections 1, 2 and 3 are reasonable and necessary to protect the business interests of the Company and/or Parent; and (iii) in the event of a breach of\nany agreement set forth in Section 1, 2 or 3, the Company and/or Parent might suffer substantial irreparable harm and that the Company and/or\nParent might not have an adequate remedy at law for such breach. In recognition of the foregoing, the parties agree that in the event of a breach or\nthreatened breach of any of these covenants, in addition to such other remedies as the Company and/or Parent may have at law, without posting any\nbond or security or requirement for proof of actual damages, the Company and/or Parent shall be entitled to seek equitable relief, in the form of\nspecific performance, or temporary, preliminary or permanent injunctive relief, or any other equitable remedy which then may be available. The\nseeking of such injunction or order shall not affect the Company’s or Parent’s right to seek and obtain damages or other equitable relief on account of\nany such actual or threatened breach.\nGoverning Law; Choice of Venue. This Agreement has been negotiated and executed, is made and is to be performed in the State of New York,\nand shall be governed and construed in accordance with the laws of the State of New York, without regard to any otherwise applicable conflicts of\nlaws except as they may be preempted by, or in conflict with, any federal laws, rules, regulations or regulatory action. The parties agree that any\naction, demand, claim or counterclaim relating to the terms and provisions of this Agreement, or to its breach, shall be commenced in New York in a\ncourt of competent jurisdiction. The parties further acknowledge that venue shall lie exclusively in any state court of the State of New York or any\nFederal District Court located in New York.\nSeverability. The invalidity, illegality or unenforceability of any particular provision or part of any provision of this Agreement under any\napplicable law shall not affect the other provisions or parts thereof, which shall remain in full force and effect, and any such invalid, illegal or\nunenforceable provision or part thereof shall be deemed modified to the extent necessary to make it valid, legal or enforceable under any applicable\nlaw.\n3\nCounterparts. This Agreement may be executed in any number of counterparts, each of which for all purposes shall be deemed to be original\nand all of which taken together shall constitute one and the same instrument.\nEntire Agreement. This Agreement constitutes the entire agreement between and among the parties with respect to the subject matter hereof,\nrecites the sole consideration for the promises exchanged and supercedes any prior agreements with respect to the subject matter hereof. In reaching\nthis Agreement, neither party has relied upon any representation or promise except those set forth herein.\nAmendment and Waiver. The terms of this Agreement may not be modified, waived, changed, discharged or terminated, except by an\nagreement in writing signed by the party against whom or which such modification, waiver, change, discharge or termination is sought to be\nenforced. No term or condition of this Agreement shall be deemed to have been waived, nor shall there by any estoppel against enforcement of any\nprovision of this Agreement, except by written instrument of the party charged with such waiver or estoppel. No such written waiver shall be deemed\na continuing waiver unless specifically stated therein, and each such waiver shall operate only as to the specific term or condition waived and shall\nnot constitute a waiver of such term or condition for the future or as to any act other than that specifically waived.\nConstruction. The parties agree that the terms and conditions of this Agreement are the result of negotiations between the parties and/or their\ncounsel, and that this Agreement shall not be construed in favor of or against either party by reason of the extent to which either party or its counsel\nparticipated in the drafting of this Agreement.\nNotices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed given if delivered\npersonally or sent by overnight courier (providing proof of delivery) to the parties at the following addresses (or at such other address for a party as\nshall be specified by like notice):\n(a) To[\n], at:\n[\n]\nc/o dELiA*s Corp.\n151 West 26th Street\nNew York, New York 10001\n(b) To the Company, at:\ndELiA*s Corp.\n151 West 26th Street\nNew York, New York 10001\nAttention: General Counsel\n4\nWith copies to:\nAlloy, Inc.\n151 West 26th Street\nNew York, New York 10001\nAttention: General Counsel\nand\nKatten Muchin Zavis Rosenman\n1025 Thomas Jefferson Street, NW\nSuite 700 East Lobby\nWashington, DC 20007\nAttention: Richard M. Graf\nSuccessors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and any of their successors and\nassigns. In addition, the Company and/or Parent may assign their rights and obligations hereunder to any of its or their affiliates or to the purchaser\nof or successor to (i) all or a significant portion of the Company’s business or assets, or (ii) that aspect of the Company’s business in which\n[\n] is principally involved in, in each case whether by way of merger, stock sale, asset sale or otherwise, provided that no such assignment\nshall relieve or excuse the Company from its obligation to pay [\n] under this Agreement. Except as set forth in the prior sentence, this\nAgreement may not be assignable by any party hereto without the prior written consent of the other parties.\nCaptions. The captions in this Agreement are for convenience only and shall not be construed to affect the meaning of any provisions herein.\nKnowing and Voluntary Execution. [\n] acknowledges that he has read and fully understands the terms of this Agreement, that he\nobtained legal advice in connection with this Agreement, and that he is signing it knowingly and voluntarily.\nIN WITNESS WHEREOF, the parties hereto have caused this Non-Competition and Confidentiality Agreement to be executed and delivered on\nthe date first above written.\n[\n]\nAgreed to and Accepted:\nALLOY, INC.\nPrint Name:\nTitle:\n5\nDELIA*S CORP.\nPrint Name:\nTitle:\nDate:\n6\nExhibit A\nPursuant to the Confidentiality and Non-Competition Agreement by and between Stephen I. Kahn and the Surviving Corporation, Mr. Kahn will\nreceive a payment from the Surviving Corporation in the sum of $450,000, payable $100,000 in the first year and the balance to be paid in equal\ninstallments payable over five years.\nPursuant to the Confidentiality and Non-Competition Agreement by and between Evan Guillemin and the Surviving Corporation, Mr. Guillemin\nwill receive a payment from the Surviving Corporation in the sum of $100,000, payable $50,000 on or before January 31, 2005 and $50,000 on or\nbefore January 31, 2006.\nPursuant to the Confidentiality and Non-Competition Agreement by and between Christopher C. Edgar and the Surviving Corporation,\nMr. Edgar will receive a payment from the Surviving Corporation in a lump sum amount of $50,000.
f69dbb2418d314736be4814649ae7584.pdf	effective_date jurisdiction party term	Exhibit 10.38\nPROPRIETARY INFORMATION LICENSING AGREEMENT\nBETWEEN\nUSA DECK, INC .\nAND\nUNIVERSAL FOREST PRODUCT, INC .\nSECTION CONTENTS\nPAGE\n(1)\nDefinitions\n3\n(2)\nThe Grant\n4\n(3)\nTransfer\n5\n(4)\nManufacturing Assistance\n5\n(5)\nProtection of Industrial Property\n6\n(6)\nProtection and Ownership of Intellectual Property\n6\n(7)\nQuality Control, Trademark Use and Goodwill\n7\n(8)\nLicense Fees\n7\n(9)\nRoyalty Fees\n7\n(10)\nAccounting for Fees and Payment\n9\n(11)\nOpt-Out Option and Alternative Rights of Use\n9\n(12)\nFirst Refusal\n9\n(13)\nIndemnification and Release\n10\n(14)\nImprovements\n10\n(15)\nUnited States Government Regulations\n10\n(16)\nDuration\n11\n(17)\nDefaults and Waivers\n11\n(18)\nInsolvency or Change in Control\n11\n(19)\nRelationships\n12\n(20)\nForce Majeure\n12\n(21)\nEffect of Termination\n12\n(22)\nNonassignability\n12\n(23)\nNotices and Payments\n13\n(24)\nRestrictive Covenants\n13\n(25)\nDispute Resolution\n13\n(26)\nUnenforceable Terms\n15\n(27)\nGoverning Law and Construction\n15\n(28)\nOther Agreements; Amendments, Miscellaneous\n15\n(29)\nEffective Date\n16\nExhibit A\n17\nPage2of17\nPROPRIETARY INFORMATION LICENSING AGREEMENT\nBETWEEN\nUSA DECK, INC .\nAND\nUNIVERSAL FOREST PRODUCT, INC .\nThis Proprietary Information Licensing Agreement (“Agreement”) is entered into as of the 31st day of March, 2003, by and between USA Deck, Inc., (“USA”), a corporation organized and existing under the laws of Delaware, with\nheadquarters located at 1041 Cannons Court Woodbridge, Virginia 22191-1434 and Universal Forest Product, Inc., (“Universal”) a corporation, organized and existing under the laws of Michigan with headquarters located at 2801 E.\nBeltline N.E. Grand Rapids, Michigan 49525.\nWITNESSETH\nWHEREAS, USA is engaged in the marketing, modular fabrication, modular manufacture, sale design and installation (hereinafter these proprietary processes and activities are singularly and jointly referred to as the “Deck Process”) of\nprefabricated modular decks and decking products for the commercial and residential home remodeling industry; and\nWHEREAS, USA has developed a substantial body of Intellectual Property necessary and useful in the Deck Process and which constitutes a valuable asset of USA;\nWHEREAS, USA enjoys a special and high reputation in this field of industry with respect to its name and also with respect to trademarks identifying and distinguishing its products and the Deck Process; and\nWHEREAS, USA owns or has the right to grant licenses with respect to its Intellectual Property relating to the Deck Process; and\nWHEREAS, Universal desires to obtain from USA a limited right to utilize the Deck Process using USA’s Intellectual Property;\nNOW, THEREFORE, in consideration of their mutual promises and undertakings hereinafter set forth, the parties intending to be legally bound hereby, do covenant and agree that the above recitations shall be part of this agreement, and\nhereby further agree as follows:\nSection 1. Definitions\nFor the purpose of this Agreement:\n(1)\n“Annual Year” means a period which continues for twelve consecutive months. The first Annual Year of this Agreement begins on the Effective Date and ends twelve consecutive months thereafter, at which time, and as\napplicable, the next Annual Year begins.\n(2)\n“Effective Date” means the date on which this Agreement is executed by the parties hereto. If execution takes place on different dates, the later date shall be the Effective Date.\n(3)\n“Expiration Date” is the date eighty-four months from the Effective Date.\n(4)\n“Home Depot Store” means any “Home Depot” retail location within a Market Zone.\n(5)\n“Home Depot” means The Home Depot U.S.A ., Inc.\nPage3of17\n(6)\n“Intellectual Property” means the Deck Process and all related information which is not general common knowledge and shall include, but shall not be limited to, installation methods, manufacturing methods, manufacturing set-up\nand guidance, deck design principles, familiarization with ancillary and accessory items, timber specifications, site surveys, costing methods, sales methods, advertising and lead generation methods, designs, drawings, CAD\nblueprint libraries, specifications, test data, charts, graphs, operation sheets, bills of materials and other technical information, quality studies, prices, catalogues, advertising, production data, specialized know-how, skill, and other\napplication information, relating to the marketing, manufacture, use, and sale of Product which is owned or controlled by USA, as now existing or as hereafter developed or modified by either USA or Universal.\n(7)\n“Market Zone(s)” means those geographical areas designated and granted to Universal in the Universal SF&I by Home Depot, as such geographical areas may change from time to time by Home Depot and / or by amendment to\nthe Universal SF&I. Notwithstanding the foregoing, Market Zones shall not include the USA Zones.\n(8)\n“Product” means prefabricated modular decks and decking accessories, including prefabricated modular deck railings and prefabricated modular deck stairs.\n(9)\n“Term of this Agreement” means the period between the Effective Date hereof and the Expiration Date.\n(10) “Universal SF&I” means Universal’s SF&I Program Installer Agreement with Home Depot in existence as of the Effective Date, as such may be amended from time to time.\n(11) “USA Zones” means the states of Virginia, Maryland, Eastern Pennsylvania, Delaware, the lower metropolitan New York City region including Staten Island, and the District of Columbia. This term also includes the “Mid\nAtlantic” territory as defined by Home Depot and the territories represented by Home Depot’s defined market zones 43, 176, 10, 20, 15, 34, 39, 65, 66, 68, 86, 93, 111, 112, 116, 177, 191, 202, 260, and 272 (“USA Sub-Zones”).\nNotwithstanding the forgoing, the USA Sub-Zones shall not include any market zone in which USA is not directly engaging in business.\n(12) “Trademarks” means the following trademark(s):\nCountry of Registration\nRegistration Number\nMark\nUnited States\n1,489 ,348\nDesigner Decks\nUnited States\n1,519 ,195\nDesigner Decks\nUnited States\n1,490 ,192\nDesigner Decks (Stylized “D ”)\nUnited States\n1,410 ,546\nDesigner Decks (Design)\nUnited States\n2,005 ,787\nInvisanail\n(13) “Licensed Patents” means the following patent(s):\nCountry of Patent Rights\nPatent Number\nTitle\nUnited States\n4,622 ,792\nModular Deck Structure And Method For Constructing Same\nUnited States\n5,664 ,381\nConstruction Nailing Method And Structures\nSection 2. The Grant\n(1)\nFor the duration of this Agreement and upon the conditions hereinafter more specifically set forth, USA hereby grants to Universal the exclusive right to utilize the Deck Process in conjunction with the Intellectual Property for the\nsale, furnishing and installation of Product in the Market Zones.\nPage4of7\n(2)\nFor the duration of this Agreement USA hereby grants to Universal the exclusive right to use the Trademarks in the Market Zones on the Product manufactured and sold by Universal under the license granted in Paragraph (1) of\nthis Section (2) on such Product, subject to the terms and conditions hereinafter set forth.\n(3)\nFor the duration of this Agreement USA hereby grants to Universal the exclusive right in the Market Zones to utilize the Deck Process to fabricate and manufacture the Product under the Licensed Patents in the Market Zones\nunder the license granted in Paragraph (1) of this Section (2) on such Product, subject to the terms and conditions hereinafter set forth.\n(4)\nExcept as otherwise set forth herein, Universal shall have no right (i) to permit or subcontract others to use the Deck Process or the Intellectual Property for Universal; (ii) to disclose to or permit or sublicense others to use the\nDeck Process or the Intellectual Property; (iii) to use the Intellectual Property or the Deck Process in connection with the manufacture, use or sale of equipment or goods manufactured by Universal other than Product, except for\nincidental use; or (iv) to use the Intellectual Property or the Deck Process outside of the Market Zones.\n(5)\nUSA represents that it has the complete and unrestricted right to grant to Universal the rights in the Intellectual Property as set forth in this Agreement, and that the modular decking system specifications and design methods which\nare part of the Intellectual Property are suitable for the construction of residential decks, subject to proper site design, fabrication, installation and other job-specific related variables. USA further represents it has the authority and\nability to grant to Universal the utilizations to the Trademarks and Licensed Patents as set forth herein.\nSection 3. Transfer\nUSA will furnish to Universal, with the least possible delay following the Effective Date, all Intellectual Property which USA may have on hand in documentary form on the Effective Date relating to Product. Nothing contained herein\nshall be construed as requiring USA to perform any act in conflict with the laws of the United States of America pertaining to the export of technical information or data.\nSection 4. Manufacturing Assistance\n(1)\nDuring the term of this Agreement, at the written request of Universal, USA will send competent representatives to visit Universal’s manufacturing plant or plants for the purpose of assisting and advising Universal in connection\nwith the Deck Process. The identity and number of such representatives and the date and duration of each such visit shall be such as USA and Universal may mutually agree to be necessary. USA shall not be required to provide\nmore than twenty days of personnel support per Annual Year. Universal shall pay a daily assistance fee of $600.00 per person for such advisory services, plus all reasonable traveling, living and other costs and expenses of such\nrepresentatives.\n(2)\nUniversal shall have the right, at its own cost and expense and without any cost or expense to USA, to send competent representatives to USA to study at reasonable times and in a reasonable manner, the manufacturing methods\nand processes employed by USA in its commercial manufacture of Product. The identity and number of such representatives and the date and duration of each such visit shall be such as USA and Universal may mutually agree to\nbe necessary. During such visits, USA shall permit Universal’s representatives to exercise, and shall assist them in exercising, the rights granted to Universal pursuant to this Section 4 and shall permit them to have, and shall assist\nthem in having, such discussions and practical observations as may be necessary with competent representatives of USA relating to the manufacturing methods and processes employed by USA with respect to Deck Process.\nUniversal shall indemnify USA from any liability which might be asserted or claimed against USA arising out of said visits by Universal’s representatives, including personal injury to or property damage of such representatives.\nPage5of17\nSection 5. Protection of Industrial Property\n(1)\nUniversal expressly acknowledges and agrees that, except in the Market Zones and to the extent of the grant set forth in Section 2, Paragraph (1), it does not acquire under this Agreement any rights in or to the use of the\nTrademarks or Licensed Patents or the Intellectual Property or the Deck Process used or adopted in connection with Product or otherwise by USA anywhere in the world.\n(2)\nUniversal further undertakes that it may not at any time contest anywhere in the world ownership of any of the Trademarks, Licensed Patents, Intellectual Property or Deck Process rights of USA.\n(3)\nUpon termination of this Agreement, Universal shall promptly deliver free of charge to USA all materials, including signs, advertising and catalogs containing the trademarks and tradenames of USA, which are in the possession of\nUniversal or its employees and Universal shall desist from making further use of these materials.\nSection 6. Protection and Ownership of Intellectual Property\n(1)\nAll Intellectual Property furnished to Universal hereunder remains the property of USA.\n(2)\nUniversal agrees to keep all Intellectual Property confidential. Universal may not, without written consent from USA, communicate or allow to be communicated any Intellectual Property to anyone except to its wholly owned\nsubsidiaries, officers, employees, agents or subcontractors and only to such extent as may be necessary for the proper manufacture and sale of the Product in accordance with this Agreement. Universal agrees to take all necessary\nprecautions in a manner acceptable to USA to keep said Intellectual Property and the Deck Process secret and to restrict its use as aforesaid.\n(3)\nUniversal agrees that any reproduction, notes, summaries or similar documents relating to the Intellectual Property supplied hereunder immediately upon their creation become and remain the property of USA. Universal shall be\nresponsible for ensuring from persons to whom authorized disclosure of Intellectual Property is made that such persons shall treat all Intellectual Property supplied hereunder as confidential and to restrict its use in the manner\nprovided in this section.\n(4)\nAll copies of any information delivered to Universal relating to USA pursuant hereto shall, upon the written request of USA, be promptly returned to USA in the event that this Agreement is terminated. Universal agrees that\nUSA’s confidential information shall not be used or disclosed, unless such disclosure is required by law, by Universal for any purpose other than as contemplated by this Agreement. For purposes of this Section, “confidential”\ninformation does not include information which: (a) is or becomes generally available to the public other than as a result of disclosure which is in violation of this Section; (b) was known by Universal on a non-confidential basis\nprior to the disclosure thereof; or (c) becomes available to Universal on a non-confidential basis from a third party who is not known by Universal to be bound by a confidentiality agreement with USA, or is not otherwise\nprohibited from transmitting the information to Universal.\n(5)\nAll copies of any information delivered to USA relating to Universal pursuant hereto shall, upon the written request of Universal, be promptly returned to Universal in the event that this Agreement is terminated. USA agrees that\nUniversal’s confidential information shall not be used or disclosed, unless such disclosure is required by law, by USA for any purpose other than as contemplated by this Agreement. For purposes of this Section, “confidential”\ninformation does not include information which: (a) is or becomes generally available to the public other than as a result of disclosure which is in violation of this Section; (b) was known by USA on a non-confidential basis prior\nto the disclosure thereof; or (c) becomes available to USA on a non-confidential basis from a third party who is not known by USA to be bound by a confidentiality agreement with Universal, or is not otherwise prohibited from\ntransmitting the information to USA.\nPage6of17\n(6)\nIt is understood by and between the parties hereto that the foregoing covenants are essential elements to the relationship between the parties, The parties agree that an award of damages alone for breach of this provision would be\ninadequate protection for the other party, as the injury would be irreparable, and therefore that equitable or injunctive relief is appropriate as well.\nSection 7. Quality Control, Trademark Use and Goodwill\n(1)\nUniversal shall report promptly to USA any changes in the design, specifications, material or similar characteristics of the Product, or any of them.\n(2)\nUniversal shall maintain the highest standards of quality and workmanship in its manufacture of Product.\n(3)\nUniversal shall permit the duly authorized representatives of USA to inspect during normal working hours the plant of Universal, the process of manufacture of the Product, and any Product manufactured by Universal and cause to\nbe inspected by them the plant of any contract manufacturer producing the Product or any part thereof.\n(4)\nSo long as Universal is licensed under Section 2 hereof, Universal agrees that a plate shall be affixed to each such Product on an outward facing post or rail or otherwise in a place to be designated by USA, and which shall\nconspicuously and permanently display the mark “Designer Decks®” followed by the patent numbers of the Licensed Patents.\n(5)\nUniversal hereby acknowledges that the Trademarks are lawful trademarks and that they are the sole and exclusive property of USA. Universal agrees that it will not at any time during the term of this Agreement, or thereafter,\nbecome a party, directly or indirectly, in any country, to the contesting of, or the impairing of, the validity, goodwill or value of the Trademarks or any applications or registrations governing the Trademarks, or of USA’s title to\nthe Trademarks. Universal agrees that it will provide written notice to USA if it learns of any third-party contesting of the validity, goodwill or value of the Trademarks or any applications or registrations governing the\nTrademarks, or of USA’s title to the Trademarks. Universal acknowledges that it shall have only those rights to use the Trademarks which are provided for under the terms of this Agreement. Universal will not directly or\nindirectly obtain or attempt to obtain in any country during the continuance of this Agreement or at any time thereafter, any right, title or interest, by registration, copyright or otherwise in or to any trademarks, trade names,\ninsignia or designation, or combination thereof, used or owned by USA in any part of the world, except with the written consent of USA.\n(6)\nImmediately upon termination of this Agreement or of Universal’s license under Section 2 hereof for any reason, Universal will discontinue use and/or display in any manner whatsoever of the Trademarks and will not\nsubsequently adopt and/or use any trademark, service mark, trade name or the like, which would be likely to cause confusion with the Trademarks.\nSection 8. License Fees\nUniversal shall pay to USA a license fee of One Hundred Fifty Thousand Dollars ($150,000.00) upon the Effective Date.\nSection 9. Royalty Fees\nUniversal shall pay to USA a royalty fee of Fifty Dollars ($50.00) (the “Threshold Royalty Fee”) for each and every deck sold by Universal, regardless of installation of said deck, under the Universal SF&I, so long as the deck is partially\nor completely elevated above ground, but regardless of whether the deck is a pre-fabricated modular deck or not. Universal further guaranties as follows:\n(1)\nFor the second Annual Year, in those Market Zones determined by the parties to have a 12-month selling season (the “12 -Month Market Zones”), the Threshold Royalty Fee shall be no less than an amount equal to 12.5 decks per\nHome Depot Store, per 12-Month Market Zone. Exhibit A, attached hereto and made a part hereof, sets forth the agreed upon 12-Month Market Zones.\nPage7of17\n(2)\nFor the second Annual Year, in those Market Zones determined by the parties to have a 9-month selling season (the “9-Month Market Zones”), the Threshold Royalty Fee shall be no less than an amount equal to 8.25 decks per\nHome Depot Store, per 9-Month Market Zone. Exhibit A sets forth the agreed upon 9-Month Market Zones.\n(3)\nFor the third Annual Year and each Annual Year thereafter, in the 12-Month Market Zones, the Threshold Royalty Fee shall be no less than an amount equal to 25 decks per Home Depot Store, per 12-Month Market Zone.\n(4)\nFor the third Annual Year and each Annual Year thereafter, in the 9-Month Market Zones, the Threshold Royalty Fee shall be no less than an amount equal to 17 decks per Home Depot Store, per 9-Month Market Zone.\n(5)\nThere shall be no guaranteed minimum royalty fees in any Market Zone determined by the parties to have less than a 9-month selling season (the “Short Market Zones”) nor in any Market Zone determined by the parties to not be\nconducive to the sale of prefabricated modular decking (the “No Sale Market Zones”). Any decks sold in either the Short Market Zones or the No Sale Market Zones shall nonetheless be subject to the Threshold Royalty Fees.\nExhibit A sets forth the agreed upon Short Market Zones and the No Sale Market Zones.\n(6)\nThe total of Threshold Royalty Fees paid during an Annual Year shall be credited against the total guaranteed minimum royalty fees required for that same Annual Year.\n(7)\nUniversal shall notify USA in writing within 30 days of the grant of any new Market Zone under the Universal SF&I, which new Market Zone shall automatically become subject to this Agreement. Universal’s notification to\nUSA shall also state the “classification” into which the new Market Zone shall be placed (the 12-Month Market Zones, 9-Month Market Zones, etc. . ) which classification USA shall have 15 days to object to in writing. If USA\ndoes not object to the proposed classification, Exhibit A to this Agreement shall be deemed to be amended by Universal’s notification as applicable to reflect the new Market Zone. If USA does object to the proposed classification\nby Universal, the parties agree to work in good faith to resolve the classification dispute within 10 business days of USA’s objection or submit the matter to the dispute resolution procedures set forth in Section 25.\n(8)\nFor any new Market Zone granted to Universal following the Effective Date, and which classification the parties agree to, the timing schedule for the guaranteed minimum royalty fees set forth in this Section will begin to run as of\nthe date of grant of the new Market Zone to Universal.\n(9)\nThe guaranteed minimum royalty fees described in this Section shall remain in full force and effect so long as Universal continues any utilization of the Intellectual Property.\n(10) All payments described in this Section are to be gross payments and shall be made without deduction, other than such tax or other amount that Universal is required to deduct or withhold by law, and in regard to any such\ndeduction Universal shall use all reasonable endeavors to assist USA to claim recovery or exemption under any double taxation or similar agreement, and evidence as to the payment of any such tax or sum withheld shall be\nprovided by Universal to USA.\nPage8of17\nSection 10. Accounting for Fees and Payment\n(1)\nThreshold Royalty Fees shall be calculated on a quarterly basis based on a calendar year, and each quarter’s royalty fees shall be paid within 30 days after the end of that quarter. Guaranteed minimum royalty fees, if applicable,\nshall be calculated and paid within 30 days after the close of each applicable Annual Year.\n(2)\nUniversal shall pay USA’s invoices for any representative services under Section 4 within thirty (30) days after the date of the invoice.\n(3)\nUniversal shall pay USA interest at the rate of 1.5 percent per month from the due date on any payment due hereunder not received by USA on the due date.\n(4)\nUnless otherwise directed by USA in writing, payments shall be made to USA by wire to a bank in the United States designated by USA in writing in United States dollars.\n(5)\nUniversal shall at all times during the continuance of this Agreement keep at its usual place of business complete sales records and make true and correct entries therein at the earliest opportunity for the purpose of showing the\nquantity and selling prices of each distinct Product sold by it directly or indirectly per Market Zone and Home Depot Store. USA shall have the right at any reasonable time, by its authorized representatives, to examine said sales\nrecords for the purpose of and to the extent necessary for verifying the accuracy of Universal’s performance under this Agreement.\nSection 11. Opt-Out Option and Alternative Rights of Use\n(1)\nNotwithstanding anything to the contrary contained herein, Universal may choose to permanently opt out of any Market Zone existing as at the Effective Date or granted following the Effective Date (“Opt Out Zones”). Exhibit A\nsets forth the agreed upon Opt Out Zones as of the Effective Date.\n(2)\nUniversal shall notify USA of any new Opt Out Zones within 30 days of Universal’s election, but in any event at least 15 days prior to its cessation of activity in Market Zone under this Agreement.\n(3)\nUniversal shall not have any rights to the Intellectual Property or the Deck Process, nor any Threshold Royalty Fee obligations, in any Market Zone which it has elected to opt out of.\n(4)\nShould Universal cease its relationship with Home Depot in any Market Zone, Universal shall then have 30 days to notify USA of its election to continue its use of the Intellectual Property and the Deck Process in that Market\nZone, on a non-exclusive basis, subject to the Threshold Royalty Fee obligation of this Agreement but the Threshold Royalty Fee shall be calculated on all decks thereafter sold by Universal in such Market Zone as opposed to\ndecks sold in Home Depot Stores in such Market Zone. Universal guarantees that the annual Threshold Royalty Fee in any such Market Zone, pro rated for the first year as applicable, shall be no less than an amount equal to 25\ndecks per Home Depot Store existing in that Market Zone.\nSection 12. First Refusal\nUniversal is hereby granted a right of first refusal to any new territory in which USA seeks to license its Intellectual Property for the Deck Process. This right shall expire twelve months from the Effective Date. USA shall notify Universal\nof any new territory USA seeks to license. The notice shall include a statement of the time within which Universal must act to exercise it’s right of first refusal. To exercise the right of first refusal, Universal shall within 15 days of USA’s\nnotification give notice to USA of Universal’s commitment to include such new territory under this Agreement. Any new territory so included shall be subject to Threshold Royalty Fees provided for in Section 9 as well as the guaranteed\nminimum royalty fees of Section 9. The timeline for such guaranteed minimum royalty fees will begin to run as of the date of Universal’s election to exercise this right of first refusal. This right of first refusal shall not apply to any Market\nZone which Universal has opted out of in accordance with Section 11.\nPage9of17\nSection 13. Indemnification and Release\n(1)\nUniversal shall indemnify USA and hold it harmless against and from any liability, claims, damages, and / or expenses whatsoever in any way arising directly or indirectly out of Universal’s manufacture, distribution, marketing,\nservice, testing, sale, installation or use of the Product or the Deck Process and Universal hereby further releases USA from any such liability, claims, damages or expenses.\n(2)\nNothing contained in this Agreement shall be construed as:\n(a) Requiring the filing by USA of any trademark or patent application, the securing or maintaining of any trademark or patent in force after the Effective Date. Notwithstanding the forgoing, USA shall take such steps as it deems\nreasonable to protect its Trademarks and Licensed Patents;\n(b) A warranty or representation by USA as to the validity or scope of any patent;\n(c) A warranty or representation by USA that any manufacture, sale, or use hereunder will be free from infringement of patents or trademarks owned by others than USA, provided, however, USA shall cooperate with and render\nreasonable assistance to Universal in the defense of any patent or trademark infringement action on terms mutually acceptable to the parties;\n(d) Conferring by implication, estoppel or otherwise upon Universal any license or other right under any patent or trademark except rights expressly granted hereunder to Universal; or\n(e) Other than as specifically set forth in Section 2(5), a warranty by USA as to the accuracy, sufficiency or suitability for use of the Intellectual Property or Deck Process licensed and made available hereunder or for the quality or\nquantity of any Product or processes made by the use thereof, and USA assumes no responsibility or liability, including liability for consequential damages or loss of profit, which might arise out of the use by Universal of said\ninformation.\nSection 14. Improvements\n(1)\nAny inventions, improvements, modifications, patents or patent applications made or acquired by Universal applicable to the Product shall be immediately and fully disclosed by Universal to USA. USA shall have prior approval,\nwhich approval must be made in writing, to any changes in designs, techniques, procedures, Product and Product parts. Universal shall grant and hereby grants to USA a complete, worldwide, unrestricted, irrevocable right and\nlicense, together with the right to sublicense others, under all of said inventions, improvements, patents and patent applications for the full term of said patents. USA’s license shall be non-exclusive.\n(2)\nIn the event Universal does not wish to file patent applications on any of such inventions and improvements, it will so notify USA prior to any public divulging thereof and upon the request of USA, execute and procure the\nexecution of any and all patent applications and all papers necessary or desirable to enable USA to protect such inventions or improvements and whatever assignments or transfer instruments are necessary or required to effectuate\nownership of the rights in USA in any and all countries of the world which USA may elect. Any expense incurred in the prosecution of such patent applications by USA shall be borne by USA. It is agreed that Universal shall have\nthe right to use in the Market Zones such patent or patents non-exclusively and free of charge for the full term of said patent or patents.\nSection 15. United States Government Regulations\n(1)\nUniversal agrees that it will not, without the prior written consent of USA, sell, lease or make available any of the Product, or disclose or sublicense any of the Intellectual Property or Deck\nPage 10 of 17\nProcess to any person, or any government or agency of any country, if such sale, lease, shipment, disclosure or sublicense would be regarded by the United States Government as a breach of the Foreign Assets Control Regulations\nor the Transaction Control Regulations.\n(2)\nIt is further understood that Universal will obtain from any customer or subcontractor or supplier, if so requested by USA, a declaration that none of the Product or Intellectual Property or Deck Process will be sold, conveyed,\nleased or revealed to any person or movement agency against the provisions of the applicable United States laws and regulations and the grant conveyed herein.\nSection 16. Duration and Termination\n(1)\nThis Agreement shall terminate upon the Expiration Date unless otherwise agreed to by the parties or sooner terminated as herein provided.\n(2)\nThis Agreement will be deemed to have terminated in the event Universal opts out of each and every Market Zone in accordance with the terms of Section 11.\n(3)\nThis Agreement will be deemed to have terminated in the event Universal is substantially prevented from utilizing the Deck Process or the Intellectual Property due to infringement or similar claims against the USA Licensed\nPatents or Trademarks.\nSection 17. Defaults and Waivers\nIn the event either party shall be in default by failing to observe or fulfill any condition or representation of this Agreement (the “Defaulting Party”), the other party (the “Non Defaulting Party”) shall have the right to serve upon such\nDefaulting Party a written notice specifying such default, requesting the remedying thereof within thirty (30) days from the date of said notice. If such default is not satisfactorily remedied within said period, the Non Defaulting Party may\nserve the Defaulting Party with a written notice of immediate termination of this Agreement, upon which all rights and licenses, except those which are irrevocable or which may have accrued hereunder at the date of such notice, shall be\ncancelled, and each party will execute whatever documents may be necessary to return the rights or property of the other party which may have been acquired hereunder. The Non Defaulting Party may choose to submit the issue to the\ndispute resolution procedures of Section 25, rather than terminating this Agreement. No waiver of any of the terms and conditions of this Agreement shall be binding or effectual for any purpose unless expressed in writing and signed by\nthe party hereto giving the same, and any such waiver shall be effective only in the specific instance and for the purpose given. No failure or delay on the part of either party hereto in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.\nSection 18. Insolvency or Change in Control\n(1)\nIn the event that Universal shall be either deemed insolvent, make an assignment for the benefit of a creditor, or be legally obliged to cease to trade or to wind-up its affairs and go into liquidation, USA shall be entitled to give\nwritten notice terminating this Agreement forthwith without prejudice to the rights of either USA or Universal which may have accrued hereunder at the date of such termination.\n(2)\nUniversal shall, in the event that the effective control of Universal passes from the hands of the persons, firms or corporations in whose hands it is at the date of this Agreement, inform USA in writing forthwith of any such change\nin control. Should such change in control pass control into the hands of some party which USA in its reasonable judgment considers would not be commercially or otherwise favorably or impartially disposed towards the business\ninterest of USA (including the continued exploitation of sales of the Product under this Agreement), USA shall be entitled by notice\nPage 11 of 17\nin writing to terminate this Agreement forthwith without prejudice to rights already accrued hereunder.\nSection 19. Relationships\nIt is understood that in giving effect to this Agreement, Universal shall not be a partner, agent, franchisee or employee of USA for any purpose and that its relationship to USA shall be that of an independent contractor. Universal shall not\nhave the right to enter into contracts, nor incur expenses or liabilities, on behalf of USA.\nSection 20. Force Majeure\nNeither party shall be liable for failure to perform its part of this Agreement when the failure is due to causes beyond its reasonable control such as, but not limited to, fire, flood, strikes, labor troubles or other industrial disturbances,\ninevitable accidents, war (declared or undeclared), embargoes, blockades, legal restrictions, riots, insurrections or governmental regulations.\nSection 21. Effect of Termination\nUpon termination or expiration of this Agreement, Universal promises:\n(a) To cease all manufacture and sale of the Product;\n(b) To cease the use of all Intellectual Property, the Deck Process and the Licensed Patents;\n(c) To take all action necessary (i) to transfer to USA or (at USA’s option) to cancel any and all rights Universal may have to use the Intellectual Property, Deck Process and Licensed Patents and (ii) to provide USA with suitable evidence\nof such cancellations if USA exercises its option to demand them;\n(d) To return to USA all documents (including but not limited to any reproductions, notes or summaries), models and other materials relating to the Intellectual Property, Deck Process and Licensed Patents;\n(e) To not withhold any moneys accrued, due and payable by Universal to USA hereunder, on the ground of a dispute arising out of or in relation to this Agreement and as set-off against any claim for damages sought to be put forward by\nUniversal; and\nSection 22. Nonassignability\nThis Agreement and each and every covenant, term and condition herein is binding upon and inures to the benefit of the parties hereto and their respective successors, but neither this Agreement nor any rights hereunder may be assigned\nor sublicensed, directly or indirectly, voluntarily or by operation of law, by Universal without first receiving the prior written consent of USA. Notwithstanding the forgoing, Universal shall have the right, subject to the consent of USA,\nwhich consent shall not be unreasonably withheld, to sublicense its rights hereunder subject to terms and conditions customary for sublicensing agreements, all to be negotiated in good faith between the parties and set forth in an\nagreed-upon sublicensing agreement by and between Universal and its intended sublicensee, to which USA shall be a third-party beneficiary. Under no event shall any sublicense agreement release Universal from its obligations and\nresponsibilities set forth in this Agreement. USA shall in no event be required to consent to any sublicense agreement where, in the opinion of USA’s counsel, such agreement could be deemed to create a franchise relationship for USA.\nPage 12 of 17\nSection 23. Notices and Payments\nUntil further notice, to be legally effective any payment or notice which the parties are required or permitted to give to each other pursuant to any of the provisions of this Agreement shall be sent by certified and registered airmail or by\novernight or second day delivery via an internationally recognized carrier such as Federal Express or UPS to the other party at the following address set after its name:\nUSA Deck, Inc.\nUniversal Forest Product, Inc.\n1041 Cannons Court\n2801 E. Beltline N.E .\nWoodbridge, Virginia 22191-1434\nGrand Rapids, Michigan 49525\nAttn: Daniel L. Betts, President\nAttn: Kent Bathurst, V.P.\nThe effective date of any such notice shall be two days following date of mailing.\nSection 24. Restrictive Covenants\nUpon the Effective Date and for a period of two (2) years following the termination of this Agreement for any reason, Universal (for itself and any affiliate or subsidiary) shall not directly or indirectly: invest in, own, render consulting\nservices to, or operate any entity that engages in the manufacture, sale or installation of Product. Notwithstanding the foregoing, this non-competition restriction shall run for a period of five (5) years in the USA Zones and any other state\nor geographical area in which USA is operating in directly or through a licensee (other than through Universal) as of the date of termination of this Agreement for any reason. Furthermore, upon the Effective Date and for a period of five\n(5) years following the termination of this Agreement for any reason, Universal (for itself and any affiliate or subsidiary) shall not, and shall cause its affiliates, successors and assigns not to, hire or directly solicit for hire any person then\nan employee of USA. It is agreed that the period of time during which Universal is prohibited from engaging in such practices pursuant to this section shall be extended by any length of time during which Universal is in breach of this\nsection. Notwithstanding the foregoing, this Noncompetition clause shall not prohibit any party from owning a one percent (1%) or less interest in any company whose shares are traded on any public securities exchange.\nIt is understood by and between the parties hereto that the foregoing covenants are essential elements to the relationship between the parties. The parties agree that an award of damages alone for breach of this provision would be\ninadequate protection for USA, as the injury would be irreparable, and therefore that equitable or injunctive relief is appropriate as well. In addition, the parties agree that USA shall be entitled to collect its reasonable attorney’s fees if it\nshould prevail in an action for breach of the covenants of this section.\nSection 25. Dispute Resolution\nThe parties agree that any controversy other than a claim for injunctive relief (“Dispute”) arising out of this Agreement shall be resolved in accordance with the following procedures. A Dispute may include, without limitation, any claim\nwith respect to either party’s obligations or its performance, failure to perform, adequacy of performance or good faith exercise of its rights under the Agreement. The parties shall endeavor in good faith to promptly, reasonably, and\nequitably settle all Disputes on an informal basis in the normal course of business. All Disputes which the parties cannot so settle in the normal course of business shall be negotiated and mediated in accordance with this Section.\nEither party (the “initiating party”) may commence a negotiation of a Dispute (“Negotiation”) by serving on the other party (the “responding party”) a written statement of the nature and substance of\nPage 13 of 17\nthe Dispute, a brief summary of its position with respect to the Dispute, its justifications therefor, and its proposal for resolution of the Dispute. Within ten (10) days, the responding party shall prepare and serve on the initiating party a\nwritten statement of its position in response. These position papers may be served in accordance with the notice provisions of this Agreement to the authorized representatives of the parties (“Executives”).\nWithin fourteen (14) days of exchanging position papers, the parties shall conduct a face-to-face or telephonic meeting of the Executives and appropriate members of their respective management teams with knowledge of the matters\nunderlying the Dispute and full authority to resolve the Dispute. If the Executives cannot agree to a resolution of the Dispute within five (5) days thereafter, they may continue discussions or either party may invoke the mediation\nprocedures set forth hereafter by giving notice to the other party.\nEither party may invoke non-binding mediation (“Mediation”) upon conclusion of the Negotiation procedures described above by serving a notice of mediation on the other party and proposing a mediator. The other party shall respond\nwithin five (5) business days advising as to whether the proposed mediator is acceptable and, if not, proposing an alternative mediator. If the parties cannot agree within an additional two (2) business days to an acceptable mediator, then\non the second business day after delivery of the other party’s response, each party shall concurrently deliver to the other by an overnight delivery service of general commercial use and acceptance (such as Airborne, UPS, or Federal\nExpress) a list of five proposed mediators in order of preference. The Person ranking highest on the two lists (measured by a total point system of 5 points for the first choice on each list, 4 points for the second choice on each list, etc.)\nshall be designated the mediator unless such Person refuses the designation, in which event the next highest ranking Person shall be designated the mediator. If no Person appears on both lists, or no Person who appears on both lists\naccepts the designation, and the parties cannot within five (5) additional days agree to a mediator, the parties shall each then designate a Person (“designee”) who shall together decide on and confirm appointment of the mediator. If the\ndesignees are unable to agree, the designees shall apply to the Center for Public Resources to appoint a mediator in accordance with its Model Procedure for Mediation of Business Disputes as then in effect. The Person so appointed (the\n“Mediator”) shall be compensated at an hourly rate (or an alternative compensation arrangement) to be agreed upon between the parties and the Mediator prior to appointment. The parties shall each pay one half the Mediator’s fee and\nexpenses.\nEach party shall prepare a written statement of the Dispute and its position, a summary of the prior negotiations, and a final proposal of settlement. Within fifteen (15) days of appointment of the Mediator, the parties shall submit such\nstatement to the Mediator, together with such supporting or evidentiary materials or other matter as the parties deem appropriate to the Dispute. Concurrently, the parties shall deliver a copy of all submitted materials to the other party.\nAny further submissions shall be made only with the prior consent of the Mediator and all submissions shall be copies to the other party. No “discovery” or other proceeding shall be conducted except as directed by the Mediator. The\nMediator may, at his option, hold hearings or conduct interviews, discussions, or negotiation sessions with any Person or entity, which he believes to be relevant to the Dispute. The Mediator may in his discretion conduct such interviews\nor discussions unilaterally or with the parties present. The Mediation shall be generally conducted in accordance with the Model Procedures for Mediation of Business Disputes as then in effect, or pursuant to such other procedures as the\nparties may agree. The parties shall endeavor to assist the Mediator in concluding the Mediation within a reasonable time, with a target of not later than thirty (30) days after initial submission of materials to the Mediator.\nAt any time, after the parties have engaged in reasonable mediation activity, the Mediator may declare the Mediation to be terminated, and either party may elect to terminate the Mediation at any time by giving notice to the other party\nand the Mediator, if the Dispute is not resolved within ninety (90) days after the appointment of the Mediator. If, upon termination of the Mediation, the Dispute remains\nPage 14 of 17\nunresolved, both parties shall reserve all rights to seek a judicial resolution of the Dispute in accordance with applicable law, except as otherwise restricted by this Agreement, and to receive their costs and reasonable attorneys fees in a\nprevailing action. The resolution of any Dispute shall not constitute an amendment to the Agreement or a waiver or modification of either party’s rights.\nSection 26. Unenforceable Terms\nIn the event any term or provision of this Agreement shall for any reason be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other term or provisions hereof. In such an\nevent, this Agreement shall be interpreted and construed as if such term or provision, to the extent the same shall have been held invalid, illegal or unenforceable, had never been contained herein.\nSection 27. Governing Law and Construction\nThis Agreement shall be construed and enforced in accordance with the laws of the Commonwealth of Virginia and the United States of America. Venue for any dispute arising hereunder shall be Prince Williams County, Virginia. The\nEnglish language shall control any interpretation of terms. This Agreement shall be construed without regard to any presumption or any other rule requiring construction against the party who caused it to have been drafted. The headings\nof sections and subsections of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof. When the context requires, the gender of all words used\nherein shall include the masculine, feminine and neuter and the number of all words shall include the singular and plural. Use of the words “herein”, “hereof”, “hereto” and the like in this Agreement shall be construed as references to this\nAgreement as a whole and not to any particular Article, Section or provision of this Agreement, unless otherwise noted.\nSection 28. Other Agreements; Amendments, Miscellaneous\n(1)\nThis Agreement represents the full and complete understanding and agreement of the parties and supersedes and cancels any prior agreements between the parties or their predecessors relating to Product, the Intellectual Property,\nthe Deck Process or otherwise, other than in regard to previously executed agreements of confidentiality or similar restrictive covenants, which shall be interpreted in conduction with this Agreement to increase but in no event to\nlimit the protections of this Agreement, in order to provide the strongest protection to the party seeking safekeeping of its proprietary and confidential information. This Agreement may be amended or nullified only by a writing\nexecuted by officers of both parties.\n(2)\nExcept as may otherwise be required by law or regulation or by court or administrative agency order, the parties hereto agree that no press release or similar public announcements shall be made with respect to the proposed\ntransactions unless the parties hereto have consented in writing to such disclosure, which consent shall not be unreasonably withheld.\n(3)\nUpon termination or expiration of this Agreement, the terms and conditions of this Agreement which by their reasonable construction are intended to survive termination or expiration of this Agreement shall, in such event, remain\nin effect, including but not limited to those pertaining to Universal’s covenants, representations and warranties to USA.\n(4)\nThis Agreement may be executed in multiple counterparts, each of which shall be deemed an original but all of which together shall constitute a single instrument. Execution and delivery of this Agreement by exchange of\nfacsimile copies bearing facsimile signature of a party shall constitute a valid and binding execution and delivery of this agreement by such party.\nPage 15 of 17\n(5)\nThe parties did not engage the services of any broker for the procurement of this transaction. Each party hereto shall bear its own costs and expenses (including accounting costs and attorneys’ fees), except that each party hereto\nagrees to pay the costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the other parties in successfully (a) enforcing any of the terms of this Agreement or (b) proving that another party breached any\nof the terms of this Agreement or related documents.\n(6)\nExcept as may otherwise be required by law or regulation or by court or administrative agency order, the parties hereto agree that no press release or similar public statements shall be made with respect to the proposed transactions\nunless the other party has consented to such disclosure, which consent shall not be unreasonably withheld.\nSection 29. Effective Date\nThe Effective Date shall be on or before March 31, 2003, or such other date as mutually agreed to by the parties.\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in their corporate names by their duly authorized representatives.\nUSA DECK, INC .\nUNIVERSAL FOREST PRODUCTS, INC.\nBY:\n/s/ Daniel L. Betts\nBY: /s/ Matthew J. Missad\nDaniel L. Betts, President\nNAME:\nMatthew J. Missad\nTITLE:Exec, VP\n7DATE:\n3/31/03\nDATE:3/31/03\nPage 16 of 17\nEXHlBIT A\n12-Month Market Zones\n9-Month Market Zones\nShort Market Zones\nNo Sale Market Zones\nOpt Out Zones\nPage 17 of 17	PROPRIETARY INFORMATION LICENSING AGREEMENT\nBETWEEN\nUSA DECK, INC.\nAND\nUNIVERSAL FOREST PRODUCT, INC.\nExhibit 10.38\nFAG E\nSECTION CONTENTS\n(1) Definitions '3'\n(2) The Grant 4\n(3) Transfer 5\n(4) Manufacturing A ssistance 5\n(5) Protection of Industrial Property 6\n(6) Protection and Ownership of Intellectual Property 6\n(7) Quality Contiol, Trademark Use and Goodwill 7\n(8) License Fees 7\n(9) Royalty Fees 7\n(10) Accounting for Fees and Payment 9\n(11) Opt-Out Option and Alternative Rights of Use 9\n(12) First Refusal 9\n(13) Indemnification and Release 0\n(14) Improvements 0\n(15) United Smtes Government Regulations 0\n(16) Duration 1\n(17) Defaults and Waivers 1\n(18) Insolvency or Change in Control 1\n(19) Relationships 2\n(20) Force Majeuie 2\n(21) Effect of Termination 2\n(22) Nonassignability 2\n(23) Notices and Payments 3\n(24) Restrictive C ovenants 3\n(25) Dispute Resolution 3\n(26) Unenforceable Terms 5\n(27) Governing Law and Construction 5\n(28) OtherA greements; Amendments, Miscellaneous 5\n(29) Effective Date 6\nExhibit A 7\n \nPage 2 of 17\n—\nPROPRIETARY INFORMATION LICENSING AGREEMENT\nBETWEEN\nUSA DEC K, INC .\nAND\nUNIVERSAL FOREST PRODUCT INC.\nThis Proprietary Information Licensing Agreement (”A greement”) is entered into as of the 31st day of March, 2003, by and between USA Deck, Inc, ("USA"), a corporation organized and existing under the laws of Delaware, with\nheadquarters located at 1041 Cannons Court Woodbridge, Virginia 22191- 1434 and Universal Forest Product, Incl, (”Universal”) a corporation, organized and existing under the laws of Michigan with headquarters located at 2801 El\nBeltline NE Grand Rapids, Michigan 49525,\nWITNESSETH\nW IEREA S, USA is engaged in the marketing, modular fabrication, modular manufacture, sale design and installation (hereinafter these proprietary processes and activities are singulariy and jointly referred to as the ”Deck Process”) of\nprefabricated modular decks and decking products for the commercial and residential home remodeling industry; and\nW IEREA S, USA has developed a subsmntial body of Intellectual Property necessary and useful in the Deck Process and which constitutes a valuable asset of USA;\nW IEREA S, USA enjoys a special and high repumtion in this field of industry with respect to its name and also with respect to trademarks identifying and distinguishing its products and the Deck Process; and\nW IEREA S, USA owns or has the right to grant licenses with respect to its Intellectual Property relating to the Deck Process; and\n \nW IEREA S, Universal desires to obtain from USA a limited right to utilize the Deck Process using USA’s Intellectual Property;\nNOW, THEREFORE, in consideration of their mutual promises and undertakings hereinafter set forth, the parties intending to be legally bound hereby, do covenant and agree that the above recitations shall be part of this agreement, and\nhereby further agree as follows:\nSection 1, Definitions\nFor the purpose of this Agreement\n(1) “Annual Y ear" means a period which continues for twelve consecutive months. The firstAnnual Y ear of this Agreement begins on the Effective Date and ends twelve consecutive months thereafter, at which time, and as\napplicable, the next A nnual Y ear begins\n(2) “Effective Date" means the date on which this Agreement is executed by the parties hereto If execution takes place on different dates, the later date shall be the Effective Date,\n(3) “Expiration Date" is the date eighty-four months from the Effective Date.\n(4) “Home Depot Store” means any “Home Depot" retail location within a Market Zone,\n(5) “Home Depot" means The Home Depot USA, Inc‘\nPage 3 of 17\n(6)\n(7)\n(8)\n(9)\n”Intellectual Property" means the Deck Process and all related information which is not general common knowledge and shall include, but shall not be limited to, installation methods, manufacturing methods, manufacturing set-up\nand guidance, deck design principles, familiarization with ancillary and accessory items, timber specifications, site surveys, costing methods, sales methods, advertising and lead generation methods, designs, drawings, CAD\nblueprint libraries, specifications, test data, charts, graphs, operation sheets, bills of materials and other technical information, quality studies, prices, catalogues, advertising, production data, specialized know-how, skill, and other\napplication information, relating to the marketing, manufacture, use, and sale of Product which is owned or controlled by USA, as now existing or as hereafter developed or modified by either USA or Universal.\n“Market Zone(s)” means those geographical areas designated and granted to Universal in the Universal SF&I by Home Depot, as such geographical areas may change from time to time by Home Depot and l or by amendment to\nthe Universal SF&I. Notwithstanding the foregoing, Market Zones shall not include the USA Zones.\n“Product” means prefabricated modular decks and decking accessories, including prefabricated modular deck railings and prefabricated modular deck stairs.\n”Term of this Agreement” means the period between the Effective Date hereof and the Expiration Date.\n(10) ”Universal SF&I” means Universal’s SF&I Program InstallerAgreement with Home Depot in existence as of the Effective Date, as such may be amended from time to time.\n(11) “USA Zones” means the smtes of Virginia, Maryland, Eastern Pennsylvania, Delaware, the lower metropolitan New Y ork City region including Staten Island, and the District of Columbia. This term also includes the ”Mid\nAtlantic" territory as defined by Home Depot and the territories represented by Home Depot's defined market zones 43, 176, 10, 20, 15, 34, 39, 65, 66, 68, 86, 93, 111, 112, 116, 177, 191, 202, 260, and 272 (”USA Sub-Zones").\nNotwithsmnding the forgoing, the USA Sub-Zones shall not include any market zone in which USA is not directly engaging in business.\n(12) “Trademarks” means the following trademark(s):\nCnuntry anegish-afinn Registratinn Number Mark\nUnited Stan? 1,489,348 — Designer Decks\nUnited States 1,519,195 DesignerDecks\nUnited States 1,490,192 D esigner Decks (Stylized “D ”)\nUnited States 1,410,546 D esigner Decks (Design)\nUnited States 2,005,787 Invisanail\n(13) “Licensed Patents" means the following patent(s):\nCnuntry nl Patent Rights Patent Number Title\nUnited SW 4,622,792 — Modular Deck Structure And MWonstmcting Same\nUnited States 5,664,381 Construction Nailing Method And Structures\n(1)\nSection 2. The Grant\nFor the duration of this Agreement and upon the conditions hereinafter more specifically set forth, USA hereby grants to Universal the exclusive right to utilize the Deck Process in conjunction with the Intellectual Property for the\nsale, furnishing and installation of Product in the Market Zones.\nPage 4 of 7\n(2)\n(3)\n(4)\n(5)\nFor the duration of this Agreement USA hereby grants to Universal the exclusive right to use the Trademarks in the Market Zones on the Product manufactured and sold by Universal under the license granted in Paragraph (1) of\nthis Section (2) on such Product, subject to the terms and conditions hereinafter set forth.\nFor the duration of this Agreement USA hereby grants to Universal the exclusive right in the Market Zones to utilize the Deck Process to fabricate and manufacture the Product under the Licensed Patents in the Market Zones\nunder the license granted in Paragraph (1) of this Section (2) on such Product, subject to the terms and conditions hereinafter set forth.\nExcept as otherwise set forth herein, Universal shall have no right (i) to permit or subcontract others to use the Deck Process or the Intellectual Property for Universal; (ii) to disclose to or permit or sublicense others to use the\nDeck Process or the Intellectual Property; (iii) to use the Intellectual Property or the Deck Process in connection with the manufacture, use or sale of equipment or goods manufactured by Universal other than Product, except for\nincidenml use; or (iv) to use the Intellectual Property or the Deck Process outside of the Market Zones.\nUSA represents that it has the complete and unrestricted right to grant to Universal the rights in the Intellectual Property as set forth in this Agreement, and that the modular decking system specifications and design methods which\nare part of the Intellectual Property are suitable for the construction of residential decks, subject to proper site design, fabrication, installation and other job-specific related variables. USA further represents it has the authority and\nability to grant to Universal the utilizations to the Trademarks and Licensed Patents as set forth herein.\nSection 3. Transfer\nUSA will furnish to Universal, with the least possible delay following the Effective Date, all Intellectual Property which USA may have on hand in documenmry form on the Effective Date relating to Product. Nothing conmined herein shall be construed as requiring USA to perform any act in conflict with the laws of the United States of America pertaining to the export of technical information or dam. (1)\n(2)\nSection 4. Manufacturing A ssistance\nDuring the term of this Agreement, at the written request of Universal, USA will send competent representatives to visit Universal’s manufacturing plant or plants for the purpose of assisting and advising Universal in connection\nwith the Deck Process. The identity and number of such representatives and the date and duration of each such visit shall be such as USA and Universal may mutually agree to be necessary. USA shall not be required to provide\nmore than twenty days of personnel support perAnnual Y ear. Universal shall pay a daily assistance fee of $600.00 per person for such advisory services, plus all reasonable tiaveling, living and other costs and expenses of such\nrepresentatives.\nUniversal shall have the right, at its own cost and expense and without any cost or expense to USA, to send competent representatives to USA to study at reasonable times and in a reasonable manner, the manufacturing methods\nand processes employed by USA in its commercial manufacture of Product. The identity and number of such represenmtives and the date and duration of each such visit shall be such as USA and Universal may mutually agree to\nbe necessary. During such visits, USA shall permit Universal’s representatives to exercise, and shall assist them in exercising, the rights granted to Universal pursuant to this Section 4 and shall permit them to have, and shall assist\nthem in having, such discussions and practical observations as may be necessary with competent representatives of USA relating to the manufacturing methods and processes employed by USA with respect to Deck Process.\nUniversal shall indemnify USA from any liability which might be asserted or claimed against USA arising out of said visits by Universal’s represenmtives, including personal injury to or property damage of such representatives.\nPage 5 of 17\n(1)\n(2)\n(3)\n(1)\n(2)\n(3)\n(4)\n(5)\nSection 5. Protection of Industrial Propem\nUniversal expressly acknowledges and agrees that, except in the Market Zones and to the extent of the grant set forth in Section 2, Paragraph (1), it does not acquire under this Agreement any rights in orto the use of the\nTrademarks or Licensed Patents or the Intellectual Property or the Deck Process used or adopted in connection with Product or otherwise by USA anywhere in the world.\nUniversal further undertakes that it may not at any time contest anywhere in the world ownership of any of the Trademarks, Licensed Patents, Intellectual Property or Deck Process rights of USA.\nUpon termination of this Agreement, Universal shall promptly deliver free of charge to USA all materials, including signs, advertising and catalogs conmining the trademarks and tradenames of USA, which are in the possession of\nUniversal or its employees and Universal shall desist from making further use of these materials\nSection 6. Protection and Ownership of Intellectual Property\n \nAll Intellectual Property furnished to Universal hereunder remains the property of USA.\nUniversal agrees to keep all Intellectual Property confidential. Universal may not, without written consent from USA, communicate or allow to be communicated any Intellectual Property to anyone except to its wholly owned\nsubsidiaries, officers, employees, agents or subcontractors and only to such extent as may be necessary for the proper manufacture and sale of the Product in accordance with this Agreement Universal agrees to take all necessary\nprecautions in a manner acceptable to USA to keep said Intellectual Property and the Deck Process secret and to restrict its use as aforesaid.\nUniversal agrees that any reproduction, notes, summaries or similar documents relating to the Intellectual Property supplied hereunder immediately upon their creation become and remain the property of USA. Universal shall be\nresponsible for ensuring from persons to whom authorized disclosure of Intellectual Property is made that such persons shall treat all Intellectual Property supplied hereunder as confidential and to restrict its use in the manner\nprovided in this section.\nAll copies of any information delivered to Universal relating to USA pursuant hereto shall, upon the written request of USA, be promptly returned to USA in the event that this Agreement is terminated. Universal agrees that\nUSA ’5 confidential information shall not be used or disclosed, unless such disclosure is required by law, by Universal for any purpose other than as contemplated by this Agreement. For purposes of this Section, "confidential”\ninformation does not include information which: (a) is or becomes generally available to the public other than as a result of disclosure which is in violation of this Section,- (b) was known by Universal on a non-confidential basis\nprior to the disclosure thereof; or (c) becomes available to Universal on a non-confidential basis from a third party who is not known by Universal to be bound by a confidentiality agreement with USA, or is not otherwise\nprohibited from transmitting the information to Universal.\nAll copies of any information delivered to USA relating to Universal pursuant hereto shall, upon the written request of Universal, be promptly returned to Universal in the event that this Agreement is terminated. USA agrees that\nUniversal’s confidential information shall not be used or disclosed, unless such disclosure is required by law, by USA for any purpose other than as contemplated by this Agreement. For purposes of this Section, "confidential”\ninformation does not include information which: (a) is or becomes generally available to the public other than as a result of disclosure which is in violation of this Section,- (b) was known by USA on a non-confidential basis prior\nto the disclosure thereof,- or (c) becomes available to USA on a non-confidential basis from a third party who is not known by USA to be bound by a confidentiality agreement with Universal, or is not otherwise prohibited from\ntransmitting the information to USA.\nPage 6 of 17\n(6) It is understood by and between the parties hereto that the foregoing covenants are essential elements to the relationship between the parties, The parties agree that an award of damages alone for breach of this provision would be\ninadequate protection for the other party, as the injury would be irreparable, and therefore that equitable or injunctive relief is appropriate as well.\nSection 7. Quality Control, Trademark Use and Goodwill\n(1) Universal shall report promptly to USA any changes in the design, specifications, material or similar characteristics of the Product, or any of them.\n(2) Universal shall mainmin the highest standards of quality and workmanship in its manufacture of Product.\n(3) Universal shall permit the duly authorized representatives of USA to inspect during normal working hours the plant of Universal, the process of manufacture of the Product, and any Product manufactured by Universal and cause to\nbe inspected by them the plant of any contract manufacturer producing the Product or any part thereof.\n(4) So long as Universal is licensed under Section 2 hereof, Universal agrees that a plate shall be affixed to each such Product on an outward facing post or rail or otherwise in a place to be designated by USA, and which shall\nconspicuously and permanently display the mark ”Designer Decks“ followed by the patent numbers of the Licensed Patents.\n(5) Universal hereby acknowledges that the Trademarks are lawful trademarks and that they are the sole and exclusive property of USA. Universal agrees that it will not at any time during the term of this Agreement, or thereafter,\nbecome a party, directly or indirectly, in any country, to the contesting of, or the impairing of, the validity, goodwill or value of the Trademarks or any applications or registrations governing the Trademarks, or of USA's title to\nthe Trademarks. Universal agrees that it will provide written notice to USA if it learns of any third-party contesting of the validity, goodwill or value of the Trademarks or any applications or registrations governing the\nTrademarks, or of USA’s title to the Trademarks. Universal acknowledges that it shall have only those rights to use the Trademarks which are provided for under the terms of this Agreement. Universal will not directly or\nindirectly obtain or attempt to obtain in any country during the continuance of this Agreement or at any time thereafter, any right, title or interest, by registration, copyright or otherwise in orto any trademarks, trade names,\ninsignia or designation, or combination thereof, used or owned by USA in any part of the world, except with the written consent of USA.\n(6) Immediately upon termination of this Agreement or of Universal’s license under Section 2 hereof for any reason, Universal will discontinue use andjor display in any manner whatsoever of the Trademarks and will not\nsubsequently adopt and/or use any trademark, service mark, trade name or the like, which would be likely to cause confusion with the Trademarks.\nSection 8. License Fees\nUniversal shall pay to USA a license fee of One Hundred Fifty Thousand Dollars ($150,000.00) upon the Effective Date.\nSection 9. Royalg Fees\nUniversal shall pay to USA a royalty fee of Fifty Dollars ($50.00) (the ”Threshold Royalty Fee”) for each and every deck sold by Universal, regardless of installation of said deck, under the Universal SF&I, so long as the deck is partially\nor completely elevated above ground, but regardless of whether the deck is a pre-fabricated modular deck or not. Universal further guaranties as follows:\n(1) For the second Annual Y ear, in those Market Zones determined by the parties to have a 12-month selling season (the “12-Month Market Zones”), the Threshold Royalty Fee shall be no less than an amount equal to 12.5 decks per\nHome Depot Store, per 12-Month Market Zone. ExhibitA, attached hereto and made a part hereof, sets forth the agreed upon 12-Month Market Zones.\nPage 7 of 17\n(9)\n(10)\nFor the second Annual Y ear, in those Market Zones determined by the parties to have a 9-month selling season (the "9—Month Market Zones”), the Threshold Royalty Fee shall be no less than an amount equal to 8.25 decks per\nHome Depot Store, per 9-Month Market Zone. ExhibitA sets forth the agreed upon 9-Month Market Zones.\nFor the third Annual Y ear and each Annual Y ear thereafter, in the 12-Month Market Zones, the Threshold Royalty Fee shall be no less than an amount equal to 25 decks per Home Depot Store, per 12-Month Market Zone.\nFor the third Annual Y ear and each Annual Y ear thereafter, in the 9-Month Market Zones, the Threshold Royalty Fee shall be no less than an amount equal to 17 decks per Home Depot Store, per 9-Month Market Zonei\nThere shall be no guaranteed minimum royalty fees in any Market Zone determined by the parties to have less than a 9-month selling season (the "Short Market Zones”) nor in any Market Zone determined by the parties to not be\nconducive to the sale of prefabricated modular decking (the "No Sale Market Zones”)i Any decks sold in either the Short Market Zones or the No Sale Market Zones shall nonetheless be subject to the Threshold Royalty Fees\nExhibit A sets forth the agreed upon Short Market Zones and the No Sale Market Zones.\nThe total of Threshold Royalty Fees paid during an Annual Y ear shall be credited against the mml guaranteed minimum royalty fees required for that same Annual Y earl\nUniversal shall notify USA in writing within 30 days of the grant of any new Market Zone under the Universal SF&I, which new Market Zone shall automatically become subject to this Agreement Universal’s notification to\nUSA shall also state the ”classification” into which the new Market Zone shall be placed (the 12-Month Market Zones, 9-Month Market Zones, etc. . ) which classification USA shall have 15 days to object to in writing. If USA\ndoes not object to the proposed classification, ExhibitA to this Agreement shall be deemed to be amended by Universal’s notification as applicable to reflect the new Market Zone. If USA does object to the proposed classification\nby Universal, the parties agree to work in good faith to resolve the classification dispute within 10 business days of USA’s objection or submit the matter to the dispute resolution procedures set forth in Section 25.\nFor any new Market Zone granted to Universal following the Effective Date, and which classification the parties agree to, the timing schedule for the guaranteed minimum royalty fees set forth in this Section will begin to run as of\nthe date of grant of the new Market Zone to Universal\nThe guaranteed minimum royalty fees described in this Section shall remain in full force and effect so long as Universal continues any utilization of the Intellectual Property.\nAll payments described in this Section are to be gross payments and shall be made without deduction, other than such mx or other amount that Universal is required to deduct or withhold by law, and in regard to any such\ndeduction Universal shall use all reasonable endeavors to assist USA to claim recovery or exemption under any double mation or similar agreement, and evidence as to the payment of any such tax or sum withheld shall be\nprovided by Universal to USA\nPage 8 of 17\n(1)\n(2)\n(3)\n(4)\n(5)\n(1)\n(2)\n(3)\n(4)\nSection 10. Accounting for Fees and Payment\nThreshold Royalty Fees shall be calculated on a quarterly basis based on a calendar year, and each quarter’s royalty fees shall be paid within 30 days after the end of that quarter. Guaranteed minimum royalty fees, if applicable,\nshall be calculated and paid within 30 days after the close of each applicable Annual Year.\nUniversal shall pay USA ’s invoices for any representative services under Section 4 within thirty (30) days after the date of the invoice\nUniversal shall pay USA interest at the rate of 1.5 percent per month from the due date on any payment due hereunder not received by USA on the due date.\nUnless otherwise directed by USA in writing, payments shall be made to USA by wire to a bank in the United States designated by USA in writing in United Smtes dollars.\nUniversal shall at all times during the continuance of this Agreement keep at its usual place of business complete sales records and make true and correct entries therein at the earliest opportunity for the purpose of showing the\nquantity and selling prices of each distinct Product sold by it directly or indirectly per Market Zone and Home Depot Store. USA shall have the right at any reasonable time, by its authorized representatives, to examine said sales\nrecords for the purpose of and to the extent necessary for verifying the accuracy of Universal's performance under this Agreement.\nSection 11. Opt-Out Option and Alternative Rights of Use\n \nNotwithsmnding anything to the contrary contained herein, Universal may choose to permanently opt out of any Market Zone existing as at the Effective Date or granted following the Effective Date (”Opt Out Zones”). ExhibitA\nsets forth the agreed upon Opt Out Zones as of the Effective Date.\nUniversal shall notify USA of any new Opt Out Zones within 30 days of Universal’s election, but in any event at least 15 days prior to its cessation of activity in Market Zone under this Agreement.\nUniversal shall not have any rights to the Intellectual Property or the Deck Process, nor any Threshold Royalty Fee obligations, in any Market Zone which it has elected to opt out of.\nShould Universal cease its relationship with Home Depot in any Market Zone, Universal shall then have 30 days to notify USA of its election to continue its use of the Intellectual Property and the Deck Process in that Market\nZone, on a non-exclusive basis, subject to the Threshold Royalty Fee obligation of this Agreement but the Threshold Royalty Fee shall be calculated on all decks thereafter sold by Universal in such Market Zone as opposed to\ndecks sold in Home Depot Stores in such Market Zone. Universal guarantees that the annual Threshold Royalty Fee in any such Market Zone, pro rated for the first year as applicable, shall be no less than an amount equal to 25\ndecks per Home Depot Store existing in that Market Zone.\nSection 12. First Refusal\nUniversal is hereby granted a right of first refusal to any new territory in which USA seeks to license its Intellectual Property for the Deck Process. This right shall expire twelve months from the Effective Date. USA shall notify Universal of any new territory USA seeks to license. The notice shall include a statement of the time within which Universal must act to exercise its right of first refusal. To exercise the right of first refusal, Universal shall within 15 days of USA’s notification give notice to USA of Universal's commitment to include such new territory under this Agreement. Any new territory so included shall be subject to Threshold Royalty Fees provided for in Section 9 as well as the guaranteed minimum royalty fees of Section 9. The timeline for such guaranteed minimum royalty fees will begin to run as of the date of Universal's election to exercise this right of first refusal. This right of first refusal shall not apply to any Market Zone which Universal has opted out of in accordance with Section 11. Page 9 of 17\nSection 13. Indemnification and Release\n(1) Universal shall indemnify USA and hold it harmless against and from any liability, claims, damages, and l or expenses whatsoever in any way arising directly or indirectly out of Universal's manufacture, distribution, marketing,\nservice, testing, sale, insmllation or use of the Product or the Deck Process and Universal hereby further releases USA from any such liability, claims, damages or expenses.\n(2) Nothing contained in this Agreement shall be construed as:\n(a) Requiring the filing by USA of any trademark or patent application, the securing or maintaining of any trademark or patent in force after the Effective Date Notwithsmnding the forgoing, USA shall mke such steps as it deems\nreasonable to protect its Trademarks and Licensed Patents;\n(b) A warranty or representation by USA as to the validity or scope of any patent,-\n(c) A warranty or represenmtion by USA that any manufacture, sale, or use hereunder will be free from infringement of patents or trademarks owned by others than USA, provided, however, USA shall cooperate with and render\nreasonable assistance to Universal in the defense of any patent or trademark infringement action on terms mutually acceptable to the parties;\n(d) Conferring by implication, estoppel or otherwise upon Universal any license or other right under any patent or trademark except rights expressly granted hereunder to Universal; or\n(e) Other than as specifically set forth in Section 2(5), a warranty by USA as to the accuracy, sufficiency or suitability for use of the Intellectual Property or Deck Process licensed and made available hereunder or for the quality or\nquantity of any Product or processes made by the use thereof, and USA assumes no responsibility or liability, including liability for consequential damages or loss of profit, which might arise out of the use by Universal of said\ninformation.\nSection 14. Improvements\n(1) Any inventions, improvements, modifications, patents or patent applications made or acquired by Universal applicable to the Product shall be immediately and fully disclosed by Universal to USA. USA shall have prior approval,\nwhich approval must be made in writing, to any changes in designs, techniques, procedures, Product and Product partsr Universal shall grant and hereby grants to USA a complete, worldwide, unrestricted, irrevocable right and\nlicense, together with the right to sublicense others, under all of said inventions, improvements, patents and patent applications for the full term of said patents. USA’s license shall be non-exclusive.\n(2) In the event Universal does not wish to file patent applications on any of such inventions and improvements, it will so notify USA prior to any public divulging thereof and upon the request of USA, execute and procure the\nexecution of any and all patent applications and all papers necessary or desirable to enable USA to protect such inventions or improvements and whatever assignments or transfer instruments are necessary or required to effectuate\nownership of the rights in USA in any and all countries of the world which USA may elect. Any expense incurred in the prosecution of such patent applications by USA shall be borne by USA. It is agreed that Universal shall have\nthe right to use in the Market Zones such patent or patents non-exclusively and free of charge for the full term of said patent or patents.\nSection 15. United Smtes Government Re ations\n(1) Universal agrees that it will not, without the prior written consent of USA, sell, lease or make available any of the Product, or disclose or sublicense any of the Intellectual Property or Deck\nPage 10 of 17\n—\nProcess to any person, or any government or agency of any country, if such sale, lease, shipment, disclosure or sublicense would be regarded by the United States Government as a breach of the Foreign Assets Control Regulations\nor the Transaction Control Regulations.\n(2) It is further understood that Universal will obtain from any customer or subcontractor or supplier, if so requested by USA, a declaration that none of the Product or Intellectual Property or Deck Process will be sold, conveyed,\nleased or revealed to any person or movement agency against the provisions of the applicable United States laws and regulations and the grant conveyed herein.\nSection 16. Duration and Termination\n(1) This Agreement shall terminate upon the Expiration Date unless otherwise agreed to by the parties or sooner terminated as herein provided.\n(2) This Agreement will be deemed to have terminated in the event Universal opts out of each and every Market Zone in accordance with the terms of Section 11.\n(3) This Agreement will be deemed to have terminated in the event Universal is substantially prevented from utilizing the Deck Process or the Intellectual Property due to infringement or similar claims against the USA Licensed\nPatents or Trademarks.\nSection 17. Defaults and Waivers\nIn the event either party shall be in default by failing to observe or fulfill any condition or representation of this Agreement (the "D efaulting Party”), the other party (the "Non Defaulting Party”) shall have the right to serve upon such\nDefaulting Party a written notice specifying such default, requesting the remedying thereof within thirty (30) days from the date of said notice. If such default is not satisfactorily remedied within said period, the Non Defaulting Party may\nserve the Defaulting Party with a written notice of immediate termination of this Agreement, upon which all rights and licenses, except those which are irrevocable or which may have accrued hereunder at the date of such notice, shall be\ncancelled, and each party will execute whatever documents may be necessary to return the rights or property of the other party which may have been acquired hereunder. The Non Defaulting Party may choose to submit the issue to the\ndispute resolution procedures of Section 25, rather than terminating this Agreement. No waiver of any of the terms and conditions of this Agreement shall be binding or effectual for any purpose unless expressed in writing and signed by\nthe party hereto giving the same, and any such waiver shall be effective only in the specific insmnce and for the purpose given. No failure or delay on the part of either party hereto in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.\nSection 18. Insolvency or Change in Control\n(1) In the event that Universal shall be either deemed insolvent, make an assignment for the benefit of a creditor, or be legally obliged to cease to trade or to wind-up its affairs and go into liquidation, USA shall be entitled to give\nwritten notice terminating this Agreement forthwith without prejudice to the rights of either USA or Universal which may have accrued hereunder at the date of such termination.\n(2) Universal shall, in the event that the effective control of Universal passes from the hands of the persons, firms or corporations in whose hands it is at the date of this Agreement, inform USA in writing forthwith of any such change\nin control. Should such change in control pass control into the hands of some party which USA in its reasonable judgment considers would not be commercially or otherwise favorably or impartially disposed towards the business\ninterest of USA (including the continued exploitation of sales of the Product under this Agreement), USA shall be entitled by notice\nPage 11 of 17\n—\nin writing to terminate this Agreement forthwith without prejudice to rights already accrued hereunder,\nSection 19. Relationships\nIt is understood that in giving effect to this Agreement, Universal shall not be a partner, agent, franchisee or employee of USA for any purpose and that its relationship to USA shall be that of an independent contiactor. Universal shall not\nhave the right to enter into contiacts, nor incur expenses or liabilities, on behalf of USA.\nSection 20. Force Majeure\nNeither party shall be liable for failure to perform its part of this Agreement when the failure is due to causes beyond its reasonable contiol such as, but not limited to, fire, flood, stiikes, labor troubles or other industrial disturbances,\ninevitable accidents, war (declared or undeclared), embargoes, blockades, legal restrictions, riots, insurrections or govemmenml regulations\nSection 21‘ Effect of Termination\nUpon termination or expiration of this Agreement, Universal promises:\n(a) o cease all manufacture and sale of the Product;\n(b) ‘o cease the use of all Intellectual Property, the Deck Process and the Licensed Patents;\n(c) 0 take all action necessary (i) to transfer to USA or (at USA ’s option) to cancel any and all rights Universal may have to use the Intellectual Property, Deck Process and Licensed Patents and (ii) to provide USA with suitable evidence\nof such cancellations if USA exercises its option to demand them;\n(d\n‘o retum to USA all documents (including but not limited to any reproductions, notes or summaries), models and other materials relating to the Intellectual Property, Deck Process and Licensed Patents;\n \n(e) 0 not withhold any moneys accrued, due and payable by Universal to USA hereunder, on the ground of a dispute arising out of or in relation to this Agreement and as set-off against any claim for damages sought to be put forward by\nUniversal; and\nSection 22, Nonassigability\nThis Agreement and each and every covenant, term and condition herein is binding upon and inures to the benefit of the parties hereto and their respective successors, but neither this Agreement nor any rights hereunder may be assigned\nor sublicensed, directly or indirectly, voluntarily or by operation of law, by Universal without first receiving the prior written consent of USA. Notwithstanding the forgoing, Universal shall have the right, subject to the consent of USA,\nwhich consent shall not be unreasonably withheld, to sublicense its rights hereunder subject to terms and conditions customary for sublicensing agreements, all to be negotiated in good faith between the parties and set forth in an\nagreed-upon sublicensing agreement by and between Universal and its intended sublicensee, to which USA shall be a third-party beneficiary, Under no event shall any sublicense agreement release Universal from its obligations and\nresponsibilities set forth in this Agreement USA shall in no event be required to consent to any sublicense agreement where, in the opinion of USA’s counsel, such agreement could be deemed to create a franchise relationship for USA.\nPage 12 of 17\n—\nSection 23. Notices and Payments\nUntil further notice, to be legally effective any payment or notice which the parties are required or permitted to give to each other pursuant to any of the provisions of this Agreement shall be sent by certified and registered airmail or by\novernight or second day delivery via an internationally recognized carrier such as Federal Express or UPS to the other party at the following address set after its name:\nUSA Deck, Inc. Universal Forest Product, Inc.\n1041 Cannons Court 2801 E. Beltline N.E.\nWoodbr'idge, Virginia 22191-1434 Grand Rapids, Michigan 49525\nAttn: Daniel L. Betts, President Attn: Kent Bathurst, VP.\nThe effective date of any such notice shall be two days following date of mailing.\nSection 24. Restrictive Covenants\nUpon the Effective Date and for a period of two (2) years following the termination of this Agreement for any reason, Universal (foritself and any affiliate or subsidiary) shall not directly or indirectly: invest in, own, render consulting\nservices to, or operate any entity that engages in the manufacture, sale or installation of Product Notwithsmnding the foregoing, this non-competition restriction shall rim for a period of five (5) years in the USA Zones and any other state\nor geographical area in which USA is operating in directly or through a licensee (other than through Universal) as of the date of termination of this Agreement for any reason. Furthermore, upon the Effective Date and for a period of five\n(5) years following the termination of this Agreement for any reason, Universal (for itself and any affiliate or subsidiary) shall not, and shall cause its affiliates, successors and assigns not to, hire or directly solicit for hire any person then\nan employee of USA. It is agreed that the period of time during which Universal is prohibited from engaging in such practices pursuant to this section shall be extended by any length of time during which Universal is in breach of this\nsection. Notwithsmnding the foregoing, this Noncompetition clause shall not prohibit any party from owning a one percent (1%) or less interest in any company whose shares are traded on any public securities exchange.\nIt is understood by and between the parties hereto that the foregoing covenants are essential elements to the relationship between the parties. The parties agree that an award of damages alone for breach of this provision would be\ninadequate protection for USA, as the injury would be irreparable, and therefore that equimble or injunctive relief is appropriate as well. In addition, the parties agree that USA shall be entitled to collect its reasonable attomey’s fees if it\nshould prevail in an action for breach of the covenants of this section.\nSection 25. Dispute Resolution\nThe parties agree that any controversy other than a claim for injunctive relief (“Dispu ”) arising out of this Agreement shall be resolved in accordance with the following procedures. A Dispute may include, without limimtion, any claim\nwith respect to either party’s obligations or its performance, failure to perform, adequacy of performance or good faith exercise of its rights under the Agreement. The parties shall endeavor in good faith to promptly, reasonably, and\nequitably settle all Disputes on an informal basis in the normal course of business. All Disputes which the parties cannot so settle in the normal course of business shall be negotiated and mediated in accordance with this Section.\nEither party (the "initiating party") may commence a negotiation of a Dispute ("Negotiation”) by serving on the other party (the ”responding party”) a written smtement of the nature and substance of\nPage 13 of 17\n—\nthe Dispute, a brief summary of its position with respect to the Dispute, its justifications therefor, and its proposal for resolution of the Dispute. Within ten (10) days, the responding party shall prepare and serve on the initiating party a\nwritten statement of its position in response. These position papers may be served in accordance with the notice provisions of this Agreement to the authorized representatives of the parties (”Executives”).\nWithin fourteen (14) days of exchanging position papers, the parties shall conduct a face-to-face or telephonic meeting of the Executives and appropriate members of their respective management teams with knowledge of the matters\nunderlying the Dispute and full authority to resolve the Dispute If the Executives cannot agree to a resolution of the Dispute within five (5) days thereafter, they may continue discussions or either party may invoke the mediation\nprocedures set forth hereafter by giving notice to the other party.\nEither party may invoke non-binding mediation (”Mediation") upon conclusion of the Negotiation procedures described above by serving a notice of mediation on the other party and proposing a mediator. The other party shall respond\nwithin five (5) business days advising as to whether the proposed mediator is acceptable and, if not, proposing an alternative mediator. If the parties cannot agree within an additional two (2) business days to an acceptable mediator, then\non the second business day after delivery of the other party’s response, each party shall concurrently deliver to the other by an overnight delivery service of general commercial use and acceptance (such as Airborne, UPS, or Federal\nExpress) a list of five proposed mediators in order of preference. The Person ranking highest on the two lists (measured by a total point system of 5 points for the first choice on each list, 4 points for the second choice on each list, etc.)\nshall be designated the mediator unless such Person refuses the designation, in which event the next highest ranking Person shall be designated the mediator. If no Person appears on both lists, or no Person who appears on both lists\naccepts the designation, and the parties cannot within five (5) additional days agree to a mediator, the parties shall each then designate a Person (”designee”) who shall together decide on and confirm appointment of the mediator. If the\ndesignees are unable to agree, the designees shall apply to the Center for Public Resources to appoint a mediatorin accordance with its Model Procedure for Mediation of Business Disputes as then in effect The Person so appointed (the\n”Mediator”) shall be compensated at an hourly rate (or an alternative compensation arrangement) to be agreed upon between the parties and the Mediator prior to appointment. The parties shall each pay one half the Mediator’ s fee and\nexpenses.\nEach party shall prepare a written statement of the Dispute and its position, a summary of the prior negotiations, and a final proposal of settlement. Within fifteen (15) days of appointment of the Mediator, the parties shall submit such\nsmtement to the Mediator, together with such supporting or evidentiary materials or other matter as the parties deem appropriate to the Dispute. Concurrently, the parties shall deliver a copy of all submitted materials to the other party.\nAny further submissions shall be made only with the prior consent of the Mediator and all submissions shall be copies to the other party. No "discovery” or other proceeding shall be conducted except as directed by the Mediator. The\nMediator may, at his option, hold hearings or conduct interviews, discussions, or negotiation sessions with any Person or entity, which he believes to be relevant to the Dispute. The Mediator may in his discretion conduct such interviews\nor discussions unilaterally or with the parties present. The Mediation shall be generally conducted in accordance with the Model Procedures for Mediation of Business Disputes as then in effect, or pursuant to such other procedures as the\nparties may agree. The parties shall endeavor to assist the Mediator in concluding the Mediation within a reasonable time, with a target of not later than thirty (30) days after initial submission of materials to the Mediator.\nAt any time, after the parties have engaged in reasonable mediation activity, the Mediator may declare the Mediation to be terminated, and either party may elect to terminate the Mediation at any time by giving notice to the other party\nand the Mediator, if the Dispute is not resolved within ninety (90) days after the appointment of the Mediator. If, upon termination of the Mediation, the Dispute remains\nPage 14 of 17\n—\nunresolved, both parties shall reserve all rights to seek a judicial resolution of the Dispute in accordance with applicable law, except as otherwise restricted by this Agreement, and to receive their costs and reasonable attorneys fees in a\nprevailing action. The resolution of any Dispute shall not constitute an amendment to the Agreement or a waiver or modification of either party's rights.\nSection 26. Unenforceable Terms\nIn the event any term or provision of this Agreement shall for any reason be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other term or provisions hereof. In such an\nevent, this Agreement shall be interpreted and construed as if such term or provision, to the extent the same shall have been held invalid, illegal or unenforceable, had never been contained herein.\nSection 27. Goveming Law and Construction\nThis Agreement shall be construed and enforced in accordance with the laws of the Commonwealth of Virginia and the United States of America Venue for any dispute arising hereunder shall be Prince Williams County, Virginia The\nEnglish language shall control any interpretation of terms. This Agreement shall be construed without regard to any presumption or any other rule requiring construction against the party who caused it to have been drafted. The headings\nof sections and subsections of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof. When the context requires, the gender of all words used\nherein shall include the masculine, feminine and neuter and the number of all words shall include the singular and plural. Use of the words ”herein", ”hereof”, "hereto” and the like in this Agreement shall be construed as references to this\nAgreement as a whole and not to any particularArticle, Section or provision of this Agreement, unless otherwise noted.\nSection 2 8. O ther A greements; A mendments, Miscellaneous\n \n(1) This Agreement represents the full and complete understanding and agreement of the parties and supersedes and cancels any prior agreements between the parties or their predecessors relating to Product, the Intellectual Property,\nthe Deck Process or otherwise, other than in regard to previously executed agreements of confidentiality or similar restrictive covenants, which shall be interpreted in conduction with this Agreement to increase but in no event to\nlimit the protections of this Agreement, in order to provide the strongest protection to the party seeking safekeeping of its proprietary and confidential information. This Agreement may be amended or nullified only by a writing\nexecuted by officers of both parties.\n(2) Except as may otherwise be required by law or regulation or by court or administrative agency order, the parties hereto agree that no press release or similar public announcements shall be made with respect to the proposed\ntransactions unless the parties hereto have consented in writing to such disclosure, which consent shall not be unreasonably withheld.\n(3) Upon termination or expiration of this Agreement, the terms and conditions of this Agreement which by their reasonable construction are intended to survive termination or expiration of this Agreement shall, in such event, remain\nin effect, including but not limited to those pertaining to Universal’s covenants, representations and warranties to USA.\n(4) This Agreement may be executed in multiple counterparts, each of which shall be deemed an original but all of which together shall constitute a single instrument Execution and delivery of this Agreement by exchange of\nfacsimile copies bearing facsimile signature of a party shall constitute a valid and binding execution and delivery of this agreement by such party.\nPage 15 of 17\n(5) The parties did not engage the services of any broker for the procurement of this transaction Each party hereto shall bear its own costs and expenses (including accounting costs and attorneys’ fees), except that each party hereto agrees to pay the costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the other parties in successfully (a) enforcing any of the terms of this Agreement or (b) proving that another party breached any of the terms of this Agreement or related documents‘\n(6) Except as may otherwise be required by law or regulation or by court or administrative agency order, the parties hereto agree that no press release or similar public statements shall be made with respect to the proposed transactions unless the other party has consented to such disclosure. which consent shall not be unreasonably withheld.\nSection 29. Effective Date\nThe Effective Date shall be on or before March 31, 2003. or such other date as mutually agreed to by the parties.\nIN WITNESS WHEREO F, the parties hereto have caused this Agreement to be executed in their corporate names by their duly authorized representatives.\nUSA DECK, INC.\nBY: IS/ Daniel L Bets\nW\n7DATE: 3/31/03\nPage 16 of 17\nUNIVERSAL F0 RE ST PRODUCTS, INC.\nBY : Isl Matthewji Missad\nNANMEfier—Mm—\nTITLExec. VP\nDATH31/03\nEXHIBIT A\n12-M onth Market Z ones 9-Month M arket Zones Short M arket Z ones No Sale M arket Z ones Opt Out Z ones\nPage 17 of 17	Exhibit 10.38\nPROPRIETARY INFORMATION LICENSING AGREEMENT\nBETWEEN\nUSA DECK, INC.\nAND\nUNIVERSAL FOREST PRODUCT, INC.\nPAGE\nSECTION CONTENTS\n(1)\nDefinitions\n3\n(2)\nThe Grant\n4\n(3)\nTransfer\n5\n(4)\nManufacturing Assistance\n5\n(5)\nProtection of Industrial Property\n6\n(6\nProtection and Ownership of Intellectual Property\n6\n(7)\nQuality Control, Trademark Use and Goodwill\n7\n(8)\nLicense Fees\n7\n(9)\nRoyalty Fees\n7\n(10)\nAccounting for Fees and Payment\n9\n(11)\nOpt-Out Option and Alternative Rights of Use\n9\n(12)\nFirst Refusal\n9\n(13)\nIndemnification and Release\n10\n(14)\nImprovements\n10\n(15)\nUnited States Goverment Regulations\n10\n(16)\nDuration\n11\n(17)\nDefaults and Waivers\n11\n(18)\nInsolvency or Change in Control\n11\n(19)\nRelationships\n12\n(20)\nForce Majeure\n12\n(21)\nEffect of Termination\n12\n(22)\nNonassignability\n12\n(23)\nNotices and Payments\n13\n(24)\nRestrictive Covenants\n13\n(25)\nDispute Resolution\n13\n(26)\nUnenforceable Terms\n15\n(27)\nGoveming Law and Construction\n15\n(28)\nOther A greements; Amendments, Miscellaneous\n15\n(29)\nEffective Date\n16\nExhibit A\n17\nPage 2 of 17\nPROPRIETARY INFORMATION LICENSING AGREEMENT\nBETWEEN\nUSA DECK, INC.\nAND\nUNIVERSAL FOREST PRODUCT, INC.\nThis Proprietary Information Licensing Agreement "Agreement") is entered into as of the 31s day of March, 2003, by and between USA Deck, Inc. ("USA") a corporation organized and existing under the laws of Delaware, with\nheadquarters located at 1041 Cannons Court Woodbridge, Virginia 22191-1434 and Universal Forest Product, Inc., ("Universal") a corporation, organized and existing under the laws of Michigan with headquarters located at 2801 E.\nBeltline N.E. Grand Rapids, Michigan 49525.\nWITNESSETH\nWHEREAS USA is engaged in the marketing, modular fabrication, modular manufacture, sale design and installation (hereinafter these proprietary processes and activities are singularly and jointly referred to as the "Deck Process") of\nprefabricated modular decks and decking products for the commercial and residential home remodeling industry; and\nWHEREAS, USA has developed a substantia body of Intellectual Property necessary and useful in the Deck Process and which constitutes a valuable asset of USA;\nWHEREAS, USA enjoys a special and high reputation in this field of industry with respect to its name and also with respect to trademarks identifying and distinguishing its products and the Deck Process; and\nWHEREAS, USA owns or has the right to grant licenses with respect to its Intellectual Property relating to the Deck Process; and\nWHEREAS Universal desires to obtain from USA a limited right to utilize the Deck Process using USA's Intellectual Property;\nNOW THEREFORE, in consideration of their mutual promises and undertakings hereinafter set forth, the parties intending to be legally bound hereby do covenant and agree that the above recitations shall be part of this agreement, and\nhereby further agree as follows:\nSection 1 Definitions\nFor the purpose of this Agreement:\n(1)\nAnnual Y ear" means a period which continues for twelve consecutive months. The first Annual Y ear of this Agreement begins on the Effective Date and ends twelve consecutive months thereafter, at which time, and as\napplicable the next Annual Y ear begins\n(2)\n"Effective Date" means the date on which this Agreement is executed by the parties hereto. If execution takes place on different dates, the later date shall be the Effective Date.\n(3)\n"Expiration Date" is the date eighty-four months from the Effective Date.\n(4)\n"Home Depot Store" means any "Home Depot retail location within a Market Zone.\n(5)\n"Home Depot" means The Home Depot U.S.A., Inc.\nPage 3 of 17\n(6)\n"Intellectual Property" means the Deck Process and all related information which is not general common knowledge and shall include, but shall not be limited to, installation methods, manufacturing methods, manufacturing set-u]\nand guidance, deck design principles, familiarization with ancillary and accessory items, timber specifications site surveys costing methods, sales methods advertising and lead generation methods designs, drawings, CAD\nblueprint libraries, specifications test data, charts, graphs, operation sheets, bills of materials and other technical information, quality studies, prices, catalogues, advertising, production data, specialized know-how, skill, and other\napplication information, relating to the marketing, manufacture, use, and sale of Product which is owned or controlled by USA, as now existing or as hereafter developed or modified by either USA or Universal.\n(7)\n"Market Zone(s)" means those geographical areas designated and granted to Universal in the Universal SF&I by Home Depot, as such geographical areas may change from time to time by Home Depot and / or by amendment\nto\nthe Universal SF&I. Notwithstanding the foregoing, Market Zones shall not include the USA Zones.\n(8)\n"Product" means prefabricated modular decks and decking accessories, including prefabricated modular deck railings and prefabricated modular deck stairs.\n(9)\n"Term of this Agreement" means the period between the Effective Date hereof and the Expiration Date.\n(10)\n"Universal SF&I" means Universal's SF&I Program Installer Agreement with Home Depot in existence as of the Effective Date, as such may be amended from time to time.\n(11)\n"USA Zones" means the states of Virginia, Maryland Eastern Pennsylvania, Delaware the lower metropolitan New Y ork City region including Staten Island, and the District of Columbia. This term also includes the "Mid\nAtlantic" territory as defined by Home Depot and the territories represented by Home Depot's defined market zones 43, 176, 10, 20, 15, 34, 39, 65, 66, 68, 86, 93, 111, 112, 116, 177, 191, 202, 260, and 272 ("USA ub-Zones").\nNotwithstanding the forgoing, the USA b-Zones shall not include any market zone in which USA is not directly engaging in business.\n(12)\n"Trademarks" means the following trademark(s):\nCountry of Registration\nRegistration Number\nMark\nUnited States\n1,489,348\nDesigner Decks\nUnited States\n1,519,195\nDesigner Decks\nUnited States\n1,490,192\nDesigner Decks (Stylized "D")\nUnited States\n1,410,546\nDesigner Decks (Design)\nUnited States\n2,005,787\nInvisanail\n(13)\n"Licensed Patents" means the following patent(s):\nCountry of Patent Rights\nPatent Number\nTitle\nUnited States\n4,622,792\nModular Deck Structure And Method FOr Tonstructing Same\nUnited States\n5,664,381\nConstruction Nailing Method And Structures\nSection 2. The Grant\n(1)\nFor the duration of this Agreement and upon the conditions hereinafter more specifically set forth, USA hereby grants to Universal the exclusive right to utilize the Deck Process in conjunction with the Intellectual Property for the\nsale, furishing and installation of Product in the Market Zones.\nPage 4 of 7\n(2) For the duration of this Agreement USA hereby grants to Universal the exclusive right to use the Trademarks in the Market Zones on the Product manufactured and sold by Universal under the license granted in Paragraph (1) of\nthis Section (2) on such Product, subject to the terms and conditions hereinafter set forth.\n(3)\nFor the duration of this Agreement USA hereby grants to Universal the exclusive right in the Market Zones to utilize the Deck Process to fabricate and manufacture the Product under the Licensed Patents in the Market Zones\nunder the license granted in Paragraph (1) of this Section (2) on such Product, subject to the terms and conditions hereinafter set forth.\n(4)\nExcept as otherwise set forth herein Universal shall have no right (i) to permit or subcontract others to use the Deck Process or the Intellectual Property for Universal; (ii) to disclose to or permit or sublicense others to use\nthe\nDeck Process or the Intellectual Property; (iii) to use the Intellectual Property or the Deck Process in connection with the manufacture, use or sale of equipment or goods manufactured by Universal other than Product, except for\nincidental use or (iv) to use the Intellectual Property or the Deck Process outside of the Market Zones.\n(5)\nUSA represents that it has the complete and unrestricted right to grant to Universal the rights in the Intellectual Property as set forth in this Agreement, and that the modular decking system specifications and design methods which\nare part of the Intellectual Property are suitable for the construction of residential decks, subject to proper site design, fabrication, installation and other job-specific related variables. USA further represents it has the authority and\nability to grant to Universal the utilizations to the Trademarks and Licensed Patents as set forth herein.\nSection 3. Transfer\nUSA will furnish to Universal, with the least possible delay following the Effective Date, all Intellectual Property which USA may have on hand in documentary form on the Effective Date relating to Product Nothing contained herein\nshall be construed as requiring USA to perform any act in conflict with the laws of the United States of America pertaining to the export of technical information or data.\nSection 4. Manufacturing Assistance\n(1)\nDuring the term of this Agreement, at the written request of Universal, USA will send competent representatives to visit Universal's manufacturing plant or plants for the purpose of assisting and advising Universal in connection\nwith the Deck Process. The identity and number of such representatives and the date and duration of each such visit shall be such as USA and Universal may mutually agree to be necessary. USA shall not be required to provide\nmore than twenty days of personnel support per Annual Y ear. Universal shall pay a daily assistance fee of $600.00 per person for such advisory services, plus all reasonable traveling living and other costs and expenses of\nsuch\nrepresentatives.\n(2)\nUniversa shall have the right at its own cost and expense and without any cost or expense to USA to send competent representatives to USA to study at reasonable times and in a reasonable manner, the manufacturing methods\nand processes employed by USA in its commercial manufacture of Product. The identity and number of such representatives and the date and duration of each such visit shall be such as USA and Universal may mutually agree to\nbe necessary. During such visits, USA shal permit Universal's representatives to exercise, and shall assist them in exercising, the rights granted to Universal pursuant to this Section 4 and shall permit them to have, and shall assist\nthem in having, such discussions and practical observations as may be necessary with competent representatives of USA relating to the manufacturing methods and processes employed by USA with respect to Deck Process.\nUniversal shall indemnify USA from any liability which might be asserted or claimed against USA arising out of said visits by Universal's representatives, including personal injury to or property damage of such representatives.\nPage 5 of 17\nSection 5. Protection of Industrial Property\n(1)\nUniversal expressly acknowledges and agrees that, except in the Market Zones and to the extent of the grant set forth in Section 2, Paragraph (1), it does not acquire under this Agreement any rights in or to the use of the\nTrademarks or Licensed Patents or the Intellectual Property or the Deck Process used or adopted in connection with Product or otherwise by USA anywhere in the world.\n(2)\nUniversal further undertakes that it may not at any time contest anywhere in the world ownership of any of the Trademarks Licensed Patents, Intellectual Property or Deck Process rights of USA.\n(3)\nUpon termination of this Agreement, Universal shall promptly deliver free of charge to USA all materials including signs, advertising and catalogs containing the trademarks and tradenames of USA which are in the possession of\nUniversal or its employees and Universal shall desist from making further use of these materials.\nSection 6. Protection and Ownership of Intellectual Property\n(1)\nAll Intellectual Property furnished to Universal hereunder remains the property of USA.\n(2)\nUniversal agrees to keep all Intellectua Property confidential. Universal may not, without written consent from USA, communicate or allow to be communicated any Intellectua Property to anyone except to its wholly owned\nsubsidiaries, officers, employees, agents or subcontractors and only to such extent as may be necessary for the proper manufacture and sale of the Product in accordance with this Agreement. Universal agrees to take all necessary\nprecautions in a manner acceptable to USA to keep said Intellectual Property and the Deck Process secret and to restrict its use as aforesaid.\n(3)\nUniversal agrees that any reproduction, notes, summaries or similar documents relating to the Intellectual Property supplied hereunder immediately upon their creation become and remain the property of USA. Universal shall be\nresponsible for ensuring from persons to whom authorized disclosure of Intellectual Property is made that such persons shall treat all Intellectual Property supplied hereunder as confidential and to restrict its use in the manner\nprovided in this section.\n(4)\nAll copies of any information delivered to Universal relating to USA pursuant hereto shall, upon the written request of USA, be promptly retured to USA in the event that this Agreement is terminated. Universal agrees that\nUSA's confidential information shall not be used or disclosed, unless such disclosure is required by law, by Universal for any purpose other than as contemplated by this Agreement. For purposes of this Section, "confidential"\ninformation does not include information which: (a) is or becomes generally available to the public other than as a result of disclosure which is in violation of this Section; (b) was known by Universal on a non-confidential basis\nprior to the disclosure thereof; or (c) becomes available to Universal on a non-confidential basis from a third party who is not known by Universal to be bound by a confidentiality agreement with USA, or is not otherwise\nprohibited from transmitting the information to Universal.\n(5)\nAll copies of any information delivered to USA relating to Universal pursuant hereto shall, upon the written request of Universal, be promptly retumed to Universal in the event that this Agreement is terminated. USA agrees that\nUniversal's confidential information shall not be used or disclosed unless such disclosure is required by law, by USA for any purpose other than as contemplated by this Agreement For purposes of this Section, "confidential"\ninformation does not include information which: (a) is or becomes generally available to the public other than as a result of disclosure which is in violation of this Section; (b) was known by USA on a non-confidential basis prior\nto the disclosure thereof; or (c) becomes available to USA on a non-confidential basis from a third party who is not known by USA to be bound by a confidentiality agreement with Universal, or is not otherwise prohibited from\ntransmitting the information to USA.\nPage 6 of 17\n(6)\nIt is understood by and between the parties hereto that the foregoing covenants are essential elements to the relationship between the parties, The parties agree that an award of damages alone for breach of this provision would be\ninadequate protection for the other party, as the injury would be irreparable, and therefore that equitable or injunctive relief is appropriate as well.\nSection 7. Quality Control, Trademark Use and Goodwil\n(1)\nUniversal shall report promptly to USA any changes in the design, specifications, material or similar characteristics of the Product, or any of them.\n(2)\nUniversal shall maintain the highest standards of quality and workmanship in its manufacture of Product\n(3)\nUniversal shall permi the duly authorized representatives of USA to inspect during normal working hours the plant of Universal, the process of manufacture of the Product, and any Product manufactured by Universal and cause\nto\nbe inspected by them the plant of any contract manufacturer producing the Product or any part thereof.\n(4)\nSo long as Universal is licensed under Section 2 hereof, Universal agrees that a plate shal be affixed to each such Product on an outward facing post or rail or otherwise in a place to be designated by USA, and which shall\nconspicuously and permanently display the mark "Designer Decks@" followed by the patent numbers of the Licensed Patents.\n(5)\nUniversal hereby acknowledges that the Trademarks are lawful trademarks and that they are the sole and exclusive property of USA. Universal agrees that it will not at any time during the term of this Agreement, or thereafter,\nbecome a party, directly or indirectly, in any country, to the contesting of, or the impairing of, the validity, goodwill rvalue of the Trademarks or any applications or registrations governing the Trademarks, or of USA's title\nto\nthe Trademarks. Universal agrees that it will provide written notice to USA if it leams of any third-party contesting of the validity, goodwill or value of the Trademarks or any applications or registrations governing the\nTrademarks, or of USA's title to the Trademarks. Universal acknowledges that it shall have only those rights to use the Trademarks which are provided for under the terms of this Agreement. Universal will not directly or\nindirectly obtain or attempt to obtain in any country during the continuance of this Agreement or at any time thereafter, any right, title or interest by registration copyright or otherwise in or to any trademarks trade names,\ninsignia or designation, or combination thereof, used or owned by USA in any part of the world except with the written consent of USA.\n(6)\nImmediately upon termination of this Agreement or of Universal's license under Section 2 hereof for any reason, Universal will discontinue use and/or display in any manner whatsoever of the Trademarks and will not\nsubsequently adopt and/or use any trademark, service mark trade name or the like, which would be likely to cause confusion with the Trademarks.\nSection 8. License Fees\nUniversal shall pay to USA alicense fee of One Hundred Fifty Thousand Dollars ($150,000.00) upon the Effective Date.\nSection 9. Royalty Fees\nUniversal shall pay to USA a royalty fee of Fifty Dollars ($50.00) (the "Threshold Royalty Fee") for each and every deck sold by Universal, regardless of installation of said deck, under the Universal SF&I, so long as the deck is partially\nor completely elevated above ground, but regardless of whether the deck is a pre-fabricated modular deck or not. Universal further guaranties as follows:\n(1)\nFor the second Annual Y ear, in those Market Zones determined by the parties to have a 12-month selling season (the "12-Month Market Zones"), the Threshold Royalty Fee shall be no less than an amount equa to 12.5 decks\nper\nHome Depot Store per 12. -Month Market Zone. Exhibit A, attached hereto and made a part hereof, sets forth the agreed upon 2-Month Market Zones.\nPage 7 of 17\n(2) For the second Annual Y ear, in those Market Zones determined by the parties to have a 9-month selling season (the "9-Month Market Zones"), the Threshold Royalty Fee shall be no less than an amount equal to 8.25 decks per\nHome Depot Store, per 9-Month Market Zone. Exhibit. A sets forth the agreed upon 9-Month Market Zones.\n(3)\nFor the third Annual Y ear and each Annual Y ear thereafter, in the 12. Month Market Zones, the Threshold Royalty Fee shall be no less than an amount equal to 25 decks per Home Depot Store, per 12-Month Market Zone.\n(4)\nFor the third Annual Y ear and each Annual Y ear thereafter, in the 9-Month Market Zones, the Threshold Royalty Fee shall be no less than an amount equal to 17 decks per Home Depot Store, per 9-Month Market Zone.\n(5)\nThere shall be no guaranteed minimum royalty fees in any Market Zone determined by the parties to have less than a 9-month selling season (the "Short Market Zones") nor in any Market Zone determined by the parties to not be\nconducive to the sale of prefabricated modular decking (the "No Sale Market Zones") Any decks sold in either the Short Market Zones or the No Sale Market Zones shall nonetheless be subject to the Threshold Royalty Fees.\nExhibit A sets forth the agreed upon Short Market Zones and the No Sale Market Zones.\n(6)\nThe total of Threshold Royalty Fees paid during an Annual Y ear shall be credited against the total guaranteed minimum royalty fees required for that same Annual Year.\n(7)\nUniversal shall notify USA in writing within 30 days of the grant of any new Market Zone under the Universal SF&I, which new Market Zone shall automatically become subject to this Agreement. Universal's notification to\nUSA shall also state the "classification" into which the new Market Zone shall be placed (the 12-Month Market Zones, 9-Month Market Zones, etc. ) which classification USA shall have 15 days to object to in writing If USA\ndoes not object to the proposed classification, Exhibit A to this Agreement shall be deemed to be amended by Universal's notification as applicable to reflect the new Market Zone. If USA does object to the proposed classification\nby Universal, the parties agree to work in good faith to resolve the classification dispute within 10 business days of USA's objection or submit the matter to the dispute resolution procedures set forth in Section 25.\n(8)\nFor any new Market Zone granted to Universal following the Effective Date, and which classification the parties agree to, the timing schedule for the guaranteed minimum royalty fees set forth in this Section wil begin to run as of\nthe date of grant of the new Market Zone to Universal.\n(9)\nThe guaranteed minimum royalty fees described in this Section shall remain in full force and effect so long as Universal continues any utilization of the Intellectual Property.\n(10)\nAl payments described in this Section are to be gross payments and shall be made without deduction, other than such tax or other amount that Universal is required to deduct or withhold by law, and in regard to any such\ndeduction Universal shall use all reasonable endeavors to assist USA to claim recovery or exemption under any double taxation or similar agreement, and evidence as to the payment of any such tax or sum withheld shall be\nprovided by Universal to USA.\nPage 8 of 17\nSection 10. Accounting for Fees and Payment\n(1)\nThreshold Royalty Fees shall be calculated on a quarterly basis based on a calendar year, and each quarter' royalty fees shall be paid within 30 days after the end of that quarter. Guaranteed minimum royalty fees, if applicable,\nshall be calculated and paid within 30 days after the close of each applicable Annual Year.\n(2)\nUniversal shall pay USA's invoices for any representative services under Section 4 within thirty (30) days after the date of the invoice.\n(3)\nUniversal shall pay USA interest at the rate of 1.5 percen per month from the due date on any payment due hereunder not received by USA on the due date.\n(4)\nUnless otherwise directed by USA in writing, payments shall be made to USA by wire to a bank in the United States designated by USA in writing in United States dollars.\n(5)\nUniversal shall at all times during the continuance of this Agreement keep at its usual place of business complete sales records and make true and correct entries therein at the earliest opportunity for the purpose of showing the\nquantity and selling prices of each distinct Product sold by it directly or indirectly per Market Zone and Home Depot Store. USA shall have the right at any reasonable time, by its authorized representatives, to examine said sales\nrecords for the purpose of and to the extent necessary for verifying the accuracy of Universal's performance under this Agreement.\nSection 11. Opt-Out Option and Alternative Rights of Use\n(1)\nNotwithstanding anything to the contrary contained herein, Universal may choose to permanently opt out of any Market Zone existing as at the Effective Date or granted following the Effective Date ("Opt Out Zones"). Exhibit A\nsets forth the agreed upon Opt Out Zones as of the Effective Date.\n(2)\nUniversa shall notify USA of any new Opt Out Zones within 30 days of Universal's election but in any event at least 15 days prior to its cessation of activity in Market Zone under this Agreement.\n(3)\nUniversal shall not have any rights to the Intellectual Property or the Deck Process, nor any Threshold Royalty Fee obligations, in any Market Zone which it has elected to opt ou of.\n(4)\nShould Universal cease its relationship with Home Depot in any Market Zone, Universal shall then have 30 days to notify USA of its election to continue its use of the Intellectual Property and the Deck Process in that Market\nZone, on a non-exclusive basis, subject to the Threshold Royalty Fee obligation of this Agreement but the Threshold Royalty Fee shal be calculated on all decks thereafter sold by Universal in such Market Zone as opposed to\ndecks sold in Home Depot Stores in such Market Zone. Universal guarantees that the annua Threshold Royalty Fee in any such Market Zone pro rated for the first year as applicable, shall be no less than an amount equal to 25\ndecks per Home Depot Store existing in that Market Zone.\nSection 12. First Refusal\nUniversal is hereby granted a right of first refusal to any new territory in which USA seeks to license its Intellectual Property for the Deck Process. This right shall expire twelve months from the Effective Date USA shall notify Universal\nof any new territory USA seeks to license. The notice shall include a statement of the time within which Universal must act to exercise it's right of first refusal. To exercise the right of first refusal, Universal shall within 15 days of USA\nnotification give notice to USA of Universal's commitment to include such new territory under this Agreement Any new territory so included shall be subject to Threshold Royalty Fees provided for in Section 9 as well as the guaranteed\nminimum royalty fees of Section 9. The timeline for such guaranteed minimum royalty fees will begin to run as of the date of Universal's election to exercise this right of first refusal. This right of first refusal shall not apply to any Market\nZone which Universal has opted out of in accordance with Section 11.\nPage 9 of 17\nSection 13. Indemnification and Release\n(1)\nUniversal shall indemnify USA and hold it harmless against and from any liability, claims, damages, and or expenses whatsoever in any way arising directly or indirectly out of Universal's manufacture, distribution, marketing,\nservice testing, sale, installation or use of the Product or the Deck Process and Universal hereby further releases USA from any such liability, claims, damages or expenses.\n(2)\nNothing contained in this Agreement shall be construed as:\n(a) Requiring the filing by USA of any trademark or patent application, the securing or maintaining of any trademark or patent in force after the Effective Date. Notwithstanding the forgoing, USA shal take such steps as it deems\nreasonable to protect its Trademarks and Licensed Patents;\n(b) A warranty or representation by USA as to the validity or scope of any patent;\n(c) A warranty or representation by USA that any manufacture, sale, or use hereunder will be free from infringement of patents or trademarks owned by others than USA provided, however, USA shall cooperate with and render\nreasonable assistance to Universal in the defense of any patent or trademark infringement action on terms mutually acceptable to the parties;\n(d) Conferring by implication, estoppel or otherwise upon Universal any license or other right under any patent or trademark except rights expressly granted hereunder to Universal; or\n(e) Other than as specifically set forth in Section 2(5), a warranty by USA as to the accuracy, sufficiency or suitability for use of the Intellectua Property or Deck Process licensed and made available hereunder or for the quality or\nquantity of any Product or processes made by the use thereof, and USA assumes no responsibility or liability, including liability for consequential damages or loss of profit which might arise out of the use by Universal of said\ninformation.\nSection 14 Improvements\n(1)\nAny inventions, improvements, modifications, patents or patent applications made or acquired by Universal applicable to the Product shall be immediately and fully disclosed by Universal to USA. USA shall have prior approval,\nwhich approval must be made in writing, to any changes in designs, techniques, procedures, Product and Product parts. Universal shall grant and hereby grants to USA a complete, worldwide, unrestricted irrevocable right and\nlicense, together with the right to sublicense others, under all of said inventions improvements, patents and patent applications for the full term of said patents. USA s license shall be non-exclusive.\n(2)\nIn the event Universal does not wish to file patent applications on any of such inventions and improvements, it will so notify USA prior to any public divulging thereof and upon the request of USA, execute and procure the\nexecution of any and all patent applications and all papers necessary or desirable to enable USA to protect such inventions or improvements and whatever assignments or transfer instruments are necessary or required to effectuate\nownership of the rights in USA in any and all countries of the world which USA may elect. Any expense incurred in the prosecution of such patent applications by USA shall be bome by USA It is agreed that Universal shall have\nthe right to use in the Market Zones such patent or patents non-exclusively and free of charge for the full term of said patent or patents.\nSection 15. United States Government Requlations\n(1)\nUniversal agrees that it will not without the prior written consent of USA sell lease or make available any of the Product or disclose or sublicense any of the Intellectual Property or Deck\nPage 10 of 17\nProcess to any person, or any govemment or agency of any country, if such sale, lease, shipment, disclosure or sublicense would be regarded by the United States Govemment as a breach of the Foreign Assets Control Regulations\nor the Transaction Control Regulations.\n(2)\nIt is further understood that Universal will obtain from any customer or subcontractor or supplier, if so requested by USA, a declaration that none of the Product or Intellectual Property or Deck Process will be sold, conveyed,\nleased or revealed to any person or movement agency against the provisions of the applicable United States laws and regulations and the grant conveyed herein.\nSection 16. Duration and Termination\n(1)\nThis Agreement shall terminate upon the Expiration Date unless otherwise agreed to by the parties or sooner terminated as herein provided\n(2)\nThis Agreement wil be deemed to have terminated in the event Universal opts out of each and every Market Zone in accordance with the terms of Section 11.\n(3)\nThis Agreement will be deemed to have terminated in the event Universal is substantially prevented from utilizing the Deck Process or the Intellectual Property due to infringement or similar claims against the USA Licensed\nPatents or Trademarks.\nSection 17. Defaults and Waivers\nIn the event either party shall be in default by failing to observe or fulfill any condition or representation of this Agreement (the "Defaulting Party"), the other party (the "Non Defaulting Party") shall have the right to serve upon such\nDefaulting Party a written notice specifying such default, requesting the remedying thereof within thirty (30) days from the date of said notice. If such default is not satisfactorily remedied within said period, the Non Defaulting Party may\nserve the Defaulting Party with a written notice of immediate termination of this Agreement upon which all rights and licenses, except those which are irrevocable or which may have accrued hereunder at the date of such notice, shall be\ncancelled, and each party will execute whatever documents may be necessary to retum the rights or property of the other party which may have been acquired hereunder. The Non Defaulting Party may choose to submit the issue to the\ndispute resolution procedures of Section 25, rather than terminating this Agreement. No waiver of any of the terms and conditions of this Agreement shall be binding or effectual for any purpose unless expressed in writing and\nsigned\nby\nthe party hereto giving the same, and any such waiver shall be effective only in the specific instance and for the purpose given. No failure or delay on the part of either party hereto in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise of any right power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.\nSection 18. Insolvency or Change in Control\n(1)\nIn the event that Universal shal be either deemed insolvent, make an assignment for the benefit of a creditor, or be legally obliged to cease to trade or to wind-up its affairs and go into liquidation, USA shall be entitled to give\nwritten notice terminating this Agreement forthwith without prejudice to the rights of either USA or Universal which may have accrued hereunder at the date of such termination\n(2)\nUniversal shall, in the event that the effective control of Universal passes from the hands of the persons, firms or corporations in whose hands it is at the date of this Agreement, inform USA in writing forthwith of any such change\nin\ncontrol. Should such change in control pass control into the hands of some party which USA in its reasonable judgment considers would no be commercially or otherwise favorably or impartially disposed towards the business\ninterest of USA (including the continued exploitation of sales of the Product under this Agreement), USA shall be entitled by notice\nPage 11 of 17\nin writing to terminate this Agreement forthwith without prejudice to rights already accrued hereunder.\nSection 19. Relationships\nIt is understood that in giving effect to this A greement, Universal shall not be a partner, agent, franchisee or employee of USA for any purpose and that its relationship to USA shall be that of an independent contractor. Universal shal not\nhave the right to enter into contracts, nor incur expenses or liabilities on behalf of USA.\nSection 20 Force Majeure\nNeither party shall be liable for failure to perform its part of this Agreement when the failure is due to causes beyond its reasonable control such as, but not limited to, fire, flood, strikes labor troubles or other industrial disturbances,\ninevitable accidents, war (declared or undeclared), embargoes, blockades legal restrictions, riots, insurrections or governmental regulations\nSection 21. Effect of Termination\nUpon termination or expiration of this Agreement, Universal promises:\n(a) To cease all manufacture and sale of the Product;\n(b) To cease the use of all Intellectual Property, the Deck Process and the Licensed Patents;\n(c) To take all action necessary (i) to transfer to USA or (at USA'S option) to cancel any and all rights Universal may have to use the Intellectual Property, Deck Process and Licensed Patents and (ii) to provide USA with suitable evidence\nof such cancellations if USA exercises its option to demand them;\n(d)\nTo retum to USA all documents (including but not limited to any reproductions, notes or summaries) models and other materials relating to the Intellectual Property Deck Process and Licensed Patents;\n(e)\nTo not withhold any moneys accrued, due and payable by Universal to USA hereunder, on the ground of a dispute arising out of or in relation to this Agreement and as et-off off against any claim for damages sought to be put forward\nby\nUniversal; and\nSection 22 Nonassignability\nThis Agreement and each and every covenant, term and condition herein is binding upon and inures to the benefit of the parties hereto and their respective successors, but neither this Agreement nor any rights hereunder may be assigned\nor sublicensed, directly or indirectly, voluntarily or by operation of law, by Universal without first receiving the prior written consent of USA. Notwithstanding the forgoing Universal shall have the right, subject to the consent of USA\nwhich consent shal not be unreasonably withheld, to sublicense its rights hereunder subject to terms and conditions customary for sublicensing agreements, all to be negotiated in good faith between the parties and set forth in an\nagreed-upon sublicensing agreement by and between Universal and its intended sublicensee, to which USA shall be a third-party beneficiary. Under no event shall any sublicense agreement release Universal from its obligations and\nresponsibilities set forth in this Agreement USA shall in no event be required to consent to any sublicense agreement where, in the opinion of USA'S counsel, such agreement could be deemed to create a franchise relationship for USA.\nPage 12 of 17\nSection 23. Notices and Payments\nUntil further notice, to be legally effective any payment or notice which the parties are required or permitted to give to each other pursuant to any of the provisions of this Agreement shall be sent by certified and registered airmail or by\novernight or second day delivery via an intemationally recognized carrier such as Federal Express or UPS to the other party at the following address set after its name:\nUSA Deck, Inc.\nUniversal Forest Product, Inc.\n1041 Cannons Court\n2801 E. Beltline N.E.\nWoodbridge, Virginia 22191-1434\nGrand Rapids, Michigan 49525\nAttn: Daniel L. Betts, President\nAttn: Kent Bathurst, V.P.\nThe effective date of any such notice shall be two days following date of mailing.\nSection 24 Restrictive Covenants\nUpon the Effective Date and for a period of two (2) years following the termination of this Agreement for any reason, Universal (for itself and any affiliate or subsidiary) shall not directly or indirectly: invest in, own, render consulting\nservices to, or operate any entity that engages in the manufacture, sale or installation of Product. Notwithstanding the foregoing, this non-competition restriction shall run for a period of five (5) years in the USA Zones and any other state\nor\ngeographical area in which USA is operating in directly or through a licensee (other than through Universal) as of the date of termination of this Agreement for any reason. Furthermore, upon the Effective Date and for a period of five\n(5) years following the termination of this Agreement for any reason, Universal (for itself and any affiliate or subsidiary) shall not, and shall cause its affiliates, successors and assigns not to, hire or directly solicit for hire any person then\nan employee of USA It is agreed that the period of time during which Universal is prohibited from engaging in such practices pursuant to this section shall be extended by any length of time during which Universal is in breach of this\nsection. Notwithstanding the foregoing, this Noncompetition clause shall not prohibit any party from owning a one percent (1%) or less interest in any company whose shares are traded on any public securities exchange.\nIt is understood by and between the parties hereto that the foregoing covenants are essential elements to the relationship between the parties. The parties agree that an award of damages alone for breach of this provision would be\ninadequate protection for USA, as the injury would be irreparable, and therefore that equitable or injunctive relief is appropriate as well. In addition, the parties agree that USA shall be entitled to collect its reasonable attomey's fees if\nit\nshould prevail in an action for breach of the covenants of this section.\nSection 25. Dispute Resolution\nThe parties agree that any controversy other than a claim for injunctive relief ("Dispute") arising out of this Agreement shall be resolved in accordance with the following procedures. A Dispute may include, without limitation, any claim\nwith respect to either party's obligations or its performance, failure to perform adequacy of performance or good faith exercise of its rights under the Agreement. The parties shall endeavor in good faith to promptly, reasonably, and\nequitably settle all Disputes on an informal basis in the norma course of business All Disputes which the parties cannot so settle in the normal course of business shall be negotiated and mediated in accordance with this Section.\nEither party (the "initiating party") may commence a negotiation of a Dispute ("Negotiation") by serving on the other party (the "responding party") a written statement of the nature and substance of\nPage 13 of 17\nthe Dispute, a brief summary of its position with respect to the Dispute, its justifications therefor, and its proposal for resolution of the Dispute. Within ten (10) days, the responding party shall prepare and serve on the initiating party\na\nwritten statement of its position in response These position papers may be served in accordance with the notice provisions of this Agreement to the authorized representatives of the parties ("Executives").\nWithin fourteen (14) days of exchanging position papers the parties shall conduct a face-to face or telephonic meeting of the Executives and appropriate members of their respective management teams with knowledge of the matters\nunderlying the Dispute and full authority to resolve the Dispute. If the Executives cannot agree to a resolution of the Dispute within five (5) days thereafter, they may continue discussions or either party may invoke the mediation\nprocedures set forth hereafter by giving notice to the other party.\nEither party may invoke non-binding mediation ("Mediation") upon conclusion of the Negotiation procedures described above by serving a notice of mediation on the other party and proposing a mediator. The other party shall respond\nwithin five (5) business days advising as to whether the proposed mediator is acceptable and, if not, proposing an alternative mediator. If the parties cannot agree within an additional two (2) business days to an acceptable mediator, then\non the second business day after delivery of the other party's response, each party shal concurrently deliver to the other by an ovemight delivery service of general commercial use and acceptance (such as Airbome, UPS, or Federal\nExpress) a list of five proposed mediators in order of preference. The Person ranking highes on the two lists (measured by a total point system of 5 points for the first choice on each list 4 points for the second choice on each list etc.)\nshal be designated the mediator unless such Person refuses the designation in which event the next highest ranking Person shall be designated the mediator. If no Person appears on both lists, or no Person who appears on both\nlists\naccepts the designation and the parties cannot within five (5) additional days agree to a mediator, the parties shall each then designate a Person ("designee") who shall together decide on and confirm appointment of the mediator If the\ndesignees are unable to agree, the designees shall apply to the Center for Public Resources to appoint a mediator in accordance with its Model Procedure for Mediation of Business Disputes as then in effect. The Person so appointed (the\n"Mediator") shall be compensated at an hourly rate (or an altemative compensation arrangement) to be agreed upon between the parties and the Mediator prior to appointment. The parties shall each pay one half the Mediator's fee and\nexpenses.\nEach party shall prepare a written statement of the Dispute and its position, a summary of the prior negotiations, and a final proposal of settlement. Nithin fifteen (15) days of appointment of the Mediator, the parties shall submit such\nstatement to the Mediator, together with such supporting or evidentiary materials or other matter as the parties deem appropriate to the Dispute. Concurrently, the parties shall deliver a copy of all submitted materials to the other party.\nAny further submissions shall be made only with the prior consent of the Mediator and all submissions shall be copies to the other party No "discovery" or other proceeding shall be conducted except as directed by the Mediator The\nMediator may, at his option hold hearings or conduct interviews, discussions, or negotiation sessions with any Person or entity, which he believes to be relevant to the Dispute. The Mediator may in his discretion conduct such interviews\nor discussions unilaterally or with the parties present The Mediation shall be generally conducted in accordance with the Model Procedures for Mediation of Business Disputes as then in effect, or pursuant to such other procedures as\nthe\nparties may agree. The parties shall endeavor to assist the Mediator in concluding the Mediation within a reasonable time, with a target of not later than thirty (30) days after initial submission of materials to the Mediator.\nAt any time, after the parties have engaged in reasonable mediation activity, the Mediator may declare the Mediation to be terminated, and either party may elect to terminate the Mediation at any time by giving notice to the other party\nand\nthe\nMediator, if the Dispute is not resolved within ninety (90) days after the appointment of the Mediator If, upon termination of the Mediation the Dispute remains\nPage 14 of 17\nunresolved, both parties shall reserve all rights to seek a judicial resolution of the Dispute in accordance with applicable law, except as otherwise restricted by this Agreement, and to receive their costs and reasonable attomeys fees in a\nprevailing action The resolution of any Dispute shall not constitute an amendment to the Agreement or a waiver or modification of either party's rights.\nSection 26. Unenforceable Terms\nIn the event any term or provision of this Agreement shall for any reason be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other term or provisions hereof. In such an\nevent, this A greement shall be interpreted and construed as if such term or provision, to the extent the same shall have been held invalid, illegal or unenforceable, had never been contained herein.\nSection 27. Goveming Law and Construction\nThis Agreement shall be construed and enforced in accordance with the laws of the Commonwealth of Virginia and the United States of America Venue for any dispute arising hereunder shall be Prince Williams County, Virginia The\nEnglish language shall control any interpretation of terms This Agreement shall be construed without regard to any presumption or any other rule requiring construction against the party who caused it to have been drafted. The headings\nof sections and subsections of this A greement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof. Vhen the context requires, the gender of all words used\nherein shall include the masculine, feminine and neuter and the number of all words shall include the singular and plural Use of the words "herein", "hereof", "hereto" and the like in this Agreement shall be construed as references to this\nAgreement as a whole and not to any particular Article, Section or provision of this A greement, unless otherwise noted\nSection 28 Other Agreements; Amendments, Miscellaneous\n(1)\nThis Agreement represents the full and complete understanding and agreement of the parties and supersedes and cancels any prior agreements between the parties or their predecessors relating to Product, the Intellectual Property,\nthe Deck Process or otherwise, other than in regard to previously executed agreements of confidentiality or similar restrictive covenants, which shall be interpreted in conduction with this A greement to increase but in no event\nto\nlimit the protections of this Agreement, in order to provide the strongest protection to the party seeking safekeeping of its proprietary and confidentia information This Agreement may be amended or nullified only by a writing\nexecuted by officers of both parties.\n(2)\nExcept as may otherwise be required by law or regulation or by court or administrative agency order, the parties hereto agree that no press release or similar public announcements shall be made with respect to the proposed\ntransactions unless the parties hereto have consented in writing to such disclosure, which consent shall not be unreasonably withheld.\n(3)\nUpon termination or expiration of this Agreement, the terms and conditions of this Agreement which by their reasonable construction are intended to survive termination or expiration of this Agreement shall, in such event, remain\nin effect including but not limited to those pertaining to Universal's covenants representations and warranties to USA.\n(4)\nThis greement may be executed in multiple counterparts, each of which shall be deemed an original but all of which together shal constitute a single instrument. Execution and delivery of this Agreement by exchange of\nfacsimile copies bearing facsimile signature of a party shall constitute a valid and binding execution and delivery of this agreement by such party.\nPage 15 of 17\n(5)\nThe parties did not engage the services of any broker for the procurement of this transaction. Each party hereto shall bear its own costs and expenses (including accounting costs and attorneys' fees), except that each party hereto\nagrees to pay the costs and expenses (including reasonable attorneys' fees and expenses) incurred by the other parties in successfully (a) enforcing any of the terms of this A greement or (b) proving that another party breached any\nof the terms of this Agreement or related documents.\n(6)\nExcept as may otherwise be required by law or regulation or by court or administrative agency order, the parties hereto agree that no press release or similar public statements shall be made with respect to the proposed transactions\nunless the other party has consented to such disclosure, which consent shall not be unreasonably withheld.\nSection 29. Effective Date\nThe Effective Date shall be on or before March 31, 2003, or such other date as mutually agreed to by the parties\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in their corporate names by their duly authorized representatives.\nUSA DECK, INC.\nUNIVERSAL FOREST PRODUCTS, INC.\nBY:\n/s/ Danie L. Betts\nBY: /s/ Matthew J. Missad\nDaner L. Beus, President\nNA AMMEatneW J Mssad\nTITIHExeC, VP\n7DATE:\n3/31/03\nDATF31/03\nPage 16 of 17\nEXHIBIT A\n12-Month Market Zones\n9-Month Market Zones\nShort Market Zones\nNo Sale Market Zones\nOp Out Zones\nPage 17 of 17	Exhibit 10.38\nPROPRIETARY INFORMATION LICENSING AGREEMENT\nBETWEEN\nUSA DECK, INC .\nAND\nUNIVERSAL FOREST PRODUCT, INC .\nSECTION CONTENTS\nPAGE\n(1)\nDefinitions\n3\n(2)\nThe Grant\n4\n(3)\nTransfer\n5\n(4)\nManufacturing Assistance\n5\n(5)\nProtection of Industrial Property\n6\n(6)\nProtection and Ownership of Intellectual Property\n6\n(7)\nQuality Control, Trademark Use and Goodwill\n7\n(8)\nLicense Fees\n7\n(9)\nRoyalty Fees\n7\n(10)\nAccounting for Fees and Payment\n9\n(11)\nOpt-Out Option and Alternative Rights of Use\n9\n(12)\nFirst Refusal\n9\n(13)\nIndemnification and Release\n10\n(14)\nImprovements\n10\n(15)\nUnited States Government Regulations\n10\n(16)\nDuration\n11\n(17)\nDefaults and Waivers\n11\n(18)\nInsolvency or Change in Control\n11\n(19)\nRelationships\n12\n(20)\nForce Majeure\n12\n(21)\nEffect of Termination\n12\n(22)\nNonassignability\n12\n(23)\nNotices and Payments\n13\n(24)\nRestrictive Covenants\n13\n(25)\nDispute Resolution\n13\n(26)\nUnenforceable Terms\n15\n(27)\nGoverning Law and Construction\n15\n(28)\nOther Agreements; Amendments, Miscellaneous\n15\n(29)\nEffective Date\n16\nExhibit A\n17\nPage2of17\nPROPRIETARY INFORMATION LICENSING AGREEMENT\nBETWEEN\nUSA DECK, INC .\nAND\nUNIVERSAL FOREST PRODUCT, INC .\nThis Proprietary Information Licensing Agreement (“Agreement”) is entered into as of the 31st day of March, 2003, by and between USA Deck, Inc., (“USA”), a corporation organized and existing under the laws of Delaware, with\nheadquarters located at 1041 Cannons Court Woodbridge, Virginia 22191-1434 and Universal Forest Product, Inc., (“Universal”) a corporation, organized and existing under the laws of Michigan with headquarters located at 2801 E.\nBeltline N.E. Grand Rapids, Michigan 49525.\nWITNESSETH\nWHEREAS, USA is engaged in the marketing, modular fabrication, modular manufacture, sale design and installation (hereinafter these proprietary processes and activities are singularly and jointly referred to as the “Deck Process”) of\nprefabricated modular decks and decking products for the commercial and residential home remodeling industry; and\nWHEREAS, USA has developed a substantial body of Intellectual Property necessary and useful in the Deck Process and which constitutes a valuable asset of USA;\nWHEREAS, USA enjoys a special and high reputation in this field of industry with respect to its name and also with respect to trademarks identifying and distinguishing its products and the Deck Process; and\nWHEREAS, USA owns or has the right to grant licenses with respect to its Intellectual Property relating to the Deck Process; and\nWHEREAS, Universal desires to obtain from USA a limited right to utilize the Deck Process using USA’s Intellectual Property;\nNOW, THEREFORE, in consideration of their mutual promises and undertakings hereinafter set forth, the parties intending to be legally bound hereby, do covenant and agree that the above recitations shall be part of this agreement, and\nhereby further agree as follows:\nSection 1. Definitions\nFor the purpose of this Agreement:\n(1)\n“Annual Year” means a period which continues for twelve consecutive months. The first Annual Year of this Agreement begins on the Effective Date and ends twelve consecutive months thereafter, at which time, and as\napplicable, the next Annual Year begins.\n(2)\n“Effective Date” means the date on which this Agreement is executed by the parties hereto. If execution takes place on different dates, the later date shall be the Effective Date.\n(3)\n“Expiration Date” is the date eighty-four months from the Effective Date.\n(4)\n“Home Depot Store” means any “Home Depot” retail location within a Market Zone.\n(5)\n“Home Depot” means The Home Depot U.S.A ., Inc.\nPage3of17\n(6)\n“Intellectual Property” means the Deck Process and all related information which is not general common knowledge and shall include, but shall not be limited to, installation methods, manufacturing methods, manufacturing set-up\nand guidance, deck design principles, familiarization with ancillary and accessory items, timber specifications, site surveys, costing methods, sales methods, advertising and lead generation methods, designs, drawings, CAD\nblueprint libraries, specifications, test data, charts, graphs, operation sheets, bills of materials and other technical information, quality studies, prices, catalogues, advertising, production data, specialized know-how, skill, and other\napplication information, relating to the marketing, manufacture, use, and sale of Product which is owned or controlled by USA, as now existing or as hereafter developed or modified by either USA or Universal.\n(7)\n“Market Zone(s)” means those geographical areas designated and granted to Universal in the Universal SF&I by Home Depot, as such geographical areas may change from time to time by Home Depot and / or by amendment to\nthe Universal SF&I. Notwithstanding the foregoing, Market Zones shall not include the USA Zones.\n(8)\n“Product” means prefabricated modular decks and decking accessories, including prefabricated modular deck railings and prefabricated modular deck stairs.\n(9)\n“Term of this Agreement” means the period between the Effective Date hereof and the Expiration Date.\n(10) “Universal SF&I” means Universal’s SF&I Program Installer Agreement with Home Depot in existence as of the Effective Date, as such may be amended from time to time.\n(11) “USA Zones” means the states of Virginia, Maryland, Eastern Pennsylvania, Delaware, the lower metropolitan New York City region including Staten Island, and the District of Columbia. This term also includes the “Mid\nAtlantic” territory as defined by Home Depot and the territories represented by Home Depot’s defined market zones 43, 176, 10, 20, 15, 34, 39, 65, 66, 68, 86, 93, 111, 112, 116, 177, 191, 202, 260, and 272 (“USA Sub-Zones”).\nNotwithstanding the forgoing, the USA Sub-Zones shall not include any market zone in which USA is not directly engaging in business.\n(12) “Trademarks” means the following trademark(s):\nCountry of Registration\nRegistration Number\nMark\nUnited States\n1,489 ,348\nDesigner Decks\nUnited States\n1,519 ,195\nDesigner Decks\nUnited States\n1,490 ,192\nDesigner Decks (Stylized “D ”)\nUnited States\n1,410 ,546\nDesigner Decks (Design)\nUnited States\n2,005 ,787\nInvisanail\n(13) “Licensed Patents” means the following patent(s):\nCountry of Patent Rights\nPatent Number\nTitle\nUnited States\n4,622 ,792\nModular Deck Structure And Method For Constructing Same\nUnited States\n5,664 ,381\nConstruction Nailing Method And Structures\nSection 2. The Grant\n(1)\nFor the duration of this Agreement and upon the conditions hereinafter more specifically set forth, USA hereby grants to Universal the exclusive right to utilize the Deck Process in conjunction with the Intellectual Property for the\nsale, furnishing and installation of Product in the Market Zones.\nPage4of7\n(2)\nFor the duration of this Agreement USA hereby grants to Universal the exclusive right to use the Trademarks in the Market Zones on the Product manufactured and sold by Universal under the license granted in Paragraph (1) of\nthis Section (2) on such Product, subject to the terms and conditions hereinafter set forth.\n(3)\nFor the duration of this Agreement USA hereby grants to Universal the exclusive right in the Market Zones to utilize the Deck Process to fabricate and manufacture the Product under the Licensed Patents in the Market Zones\nunder the license granted in Paragraph (1) of this Section (2) on such Product, subject to the terms and conditions hereinafter set forth.\n(4)\nExcept as otherwise set forth herein, Universal shall have no right (i) to permit or subcontract others to use the Deck Process or the Intellectual Property for Universal; (ii) to disclose to or permit or sublicense others to use the\nDeck Process or the Intellectual Property; (iii) to use the Intellectual Property or the Deck Process in connection with the manufacture, use or sale of equipment or goods manufactured by Universal other than Product, except for\nincidental use; or (iv) to use the Intellectual Property or the Deck Process outside of the Market Zones.\n(5)\nUSA represents that it has the complete and unrestricted right to grant to Universal the rights in the Intellectual Property as set forth in this Agreement, and that the modular decking system specifications and design methods which\nare part of the Intellectual Property are suitable for the construction of residential decks, subject to proper site design, fabrication, installation and other job-specific related variables. USA further represents it has the authority and\nability to grant to Universal the utilizations to the Trademarks and Licensed Patents as set forth herein.\nSection 3. Transfer\nUSA will furnish to Universal, with the least possible delay following the Effective Date, all Intellectual Property which USA may have on hand in documentary form on the Effective Date relating to Product. Nothing contained herein\nshall be construed as requiring USA to perform any act in conflict with the laws of the United States of America pertaining to the export of technical information or data.\nSection 4. Manufacturing Assistance\n(1)\nDuring the term of this Agreement, at the written request of Universal, USA will send competent representatives to visit Universal’s manufacturing plant or plants for the purpose of assisting and advising Universal in connection\nwith the Deck Process. The identity and number of such representatives and the date and duration of each such visit shall be such as USA and Universal may mutually agree to be necessary. USA shall not be required to provide\nmore than twenty days of personnel support per Annual Year. Universal shall pay a daily assistance fee of $600.00 per person for such advisory services, plus all reasonable traveling, living and other costs and expenses of such\nrepresentatives.\n(2)\nUniversal shall have the right, at its own cost and expense and without any cost or expense to USA, to send competent representatives to USA to study at reasonable times and in a reasonable manner, the manufacturing methods\nand processes employed by USA in its commercial manufacture of Product. The identity and number of such representatives and the date and duration of each such visit shall be such as USA and Universal may mutually agree to\nbe necessary. During such visits, USA shall permit Universal’s representatives to exercise, and shall assist them in exercising, the rights granted to Universal pursuant to this Section 4 and shall permit them to have, and shall assist\nthem in having, such discussions and practical observations as may be necessary with competent representatives of USA relating to the manufacturing methods and processes employed by USA with respect to Deck Process.\nUniversal shall indemnify USA from any liability which might be asserted or claimed against USA arising out of said visits by Universal’s representatives, including personal injury to or property damage of such representatives.\nPage5of17\nSection 5. Protection of Industrial Property\n(1)\nUniversal expressly acknowledges and agrees that, except in the Market Zones and to the extent of the grant set forth in Section 2, Paragraph (1), it does not acquire under this Agreement any rights in or to the use of the\nTrademarks or Licensed Patents or the Intellectual Property or the Deck Process used or adopted in connection with Product or otherwise by USA anywhere in the world.\n(2)\nUniversal further undertakes that it may not at any time contest anywhere in the world ownership of any of the Trademarks, Licensed Patents, Intellectual Property or Deck Process rights of USA.\n(3)\nUpon termination of this Agreement, Universal shall promptly deliver free of charge to USA all materials, including signs, advertising and catalogs containing the trademarks and tradenames of USA, which are in the possession of\nUniversal or its employees and Universal shall desist from making further use of these materials.\nSection 6. Protection and Ownership of Intellectual Property\n(1)\nAll Intellectual Property furnished to Universal hereunder remains the property of USA.\n(2)\nUniversal agrees to keep all Intellectual Property confidential. Universal may not, without written consent from USA, communicate or allow to be communicated any Intellectual Property to anyone except to its wholly owned\nsubsidiaries, officers, employees, agents or subcontractors and only to such extent as may be necessary for the proper manufacture and sale of the Product in accordance with this Agreement. Universal agrees to take all necessary\nprecautions in a manner acceptable to USA to keep said Intellectual Property and the Deck Process secret and to restrict its use as aforesaid.\n(3)\nUniversal agrees that any reproduction, notes, summaries or similar documents relating to the Intellectual Property supplied hereunder immediately upon their creation become and remain the property of USA. Universal shall be\nresponsible for ensuring from persons to whom authorized disclosure of Intellectual Property is made that such persons shall treat all Intellectual Property supplied hereunder as confidential and to restrict its use in the manner\nprovided in this section.\n(4)\nAll copies of any information delivered to Universal relating to USA pursuant hereto shall, upon the written request of USA, be promptly returned to USA in the event that this Agreement is terminated. Universal agrees that\nUSA’s confidential information shall not be used or disclosed, unless such disclosure is required by law, by Universal for any purpose other than as contemplated by this Agreement. For purposes of this Section, “confidential”\ninformation does not include information which: (a) is or becomes generally available to the public other than as a result of disclosure which is in violation of this Section; (b) was known by Universal on a non-confidential basis\nprior to the disclosure thereof; or (c) becomes available to Universal on a non-confidential basis from a third party who is not known by Universal to be bound by a confidentiality agreement with USA, or is not otherwise\nprohibited from transmitting the information to Universal.\n(5)\nAll copies of any information delivered to USA relating to Universal pursuant hereto shall, upon the written request of Universal, be promptly returned to Universal in the event that this Agreement is terminated. USA agrees that\nUniversal’s confidential information shall not be used or disclosed, unless such disclosure is required by law, by USA for any purpose other than as contemplated by this Agreement. For purposes of this Section, “confidential”\ninformation does not include information which: (a) is or becomes generally available to the public other than as a result of disclosure which is in violation of this Section; (b) was known by USA on a non-confidential basis prior\nto the disclosure thereof; or (c) becomes available to USA on a non-confidential basis from a third party who is not known by USA to be bound by a confidentiality agreement with Universal, or is not otherwise prohibited from\ntransmitting the information to USA.\nPage6of17\n(6)\nIt is understood by and between the parties hereto that the foregoing covenants are essential elements to the relationship between the parties, The parties agree that an award of damages alone for breach of this provision would be\ninadequate protection for the other party, as the injury would be irreparable, and therefore that equitable or injunctive relief is appropriate as well.\nSection 7. Quality Control, Trademark Use and Goodwill\n(1)\nUniversal shall report promptly to USA any changes in the design, specifications, material or similar characteristics of the Product, or any of them.\n(2)\nUniversal shall maintain the highest standards of quality and workmanship in its manufacture of Product.\n(3)\nUniversal shall permit the duly authorized representatives of USA to inspect during normal working hours the plant of Universal, the process of manufacture of the Product, and any Product manufactured by Universal and cause to\nbe inspected by them the plant of any contract manufacturer producing the Product or any part thereof.\n(4)\nSo long as Universal is licensed under Section 2 hereof, Universal agrees that a plate shall be affixed to each such Product on an outward facing post or rail or otherwise in a place to be designated by USA, and which shall\nconspicuously and permanently display the mark “Designer Decks®” followed by the patent numbers of the Licensed Patents.\n(5)\nUniversal hereby acknowledges that the Trademarks are lawful trademarks and that they are the sole and exclusive property of USA. Universal agrees that it will not at any time during the term of this Agreement, or thereafter,\nbecome a party, directly or indirectly, in any country, to the contesting of, or the impairing of, the validity, goodwill or value of the Trademarks or any applications or registrations governing the Trademarks, or of USA’s title to\nthe Trademarks. Universal agrees that it will provide written notice to USA if it learns of any third-party contesting of the validity, goodwill or value of the Trademarks or any applications or registrations governing the\nTrademarks, or of USA’s title to the Trademarks. Universal acknowledges that it shall have only those rights to use the Trademarks which are provided for under the terms of this Agreement. Universal will not directly or\nindirectly obtain or attempt to obtain in any country during the continuance of this Agreement or at any time thereafter, any right, title or interest, by registration, copyright or otherwise in or to any trademarks, trade names,\ninsignia or designation, or combination thereof, used or owned by USA in any part of the world, except with the written consent of USA.\n(6)\nImmediately upon termination of this Agreement or of Universal’s license under Section 2 hereof for any reason, Universal will discontinue use and/or display in any manner whatsoever of the Trademarks and will not\nsubsequently adopt and/or use any trademark, service mark, trade name or the like, which would be likely to cause confusion with the Trademarks.\nSection 8. License Fees\nUniversal shall pay to USA a license fee of One Hundred Fifty Thousand Dollars ($150,000.00) upon the Effective Date.\nSection 9. Royalty Fees\nUniversal shall pay to USA a royalty fee of Fifty Dollars ($50.00) (the “Threshold Royalty Fee”) for each and every deck sold by Universal, regardless of installation of said deck, under the Universal SF&I, so long as the deck is partially\nor completely elevated above ground, but regardless of whether the deck is a pre-fabricated modular deck or not. Universal further guaranties as follows:\n(1)\nFor the second Annual Year, in those Market Zones determined by the parties to have a 12-month selling season (the “12 -Month Market Zones”), the Threshold Royalty Fee shall be no less than an amount equal to 12.5 decks per\nHome Depot Store, per 12-Month Market Zone. Exhibit A, attached hereto and made a part hereof, sets forth the agreed upon 12-Month Market Zones.\nPage7of17\n(2)\nFor the second Annual Year, in those Market Zones determined by the parties to have a 9-month selling season (the “9-Month Market Zones”), the Threshold Royalty Fee shall be no less than an amount equal to 8.25 decks per\nHome Depot Store, per 9-Month Market Zone. Exhibit A sets forth the agreed upon 9-Month Market Zones.\n(3)\nFor the third Annual Year and each Annual Year thereafter, in the 12-Month Market Zones, the Threshold Royalty Fee shall be no less than an amount equal to 25 decks per Home Depot Store, per 12-Month Market Zone.\n(4)\nFor the third Annual Year and each Annual Year thereafter, in the 9-Month Market Zones, the Threshold Royalty Fee shall be no less than an amount equal to 17 decks per Home Depot Store, per 9-Month Market Zone.\n(5)\nThere shall be no guaranteed minimum royalty fees in any Market Zone determined by the parties to have less than a 9-month selling season (the “Short Market Zones”) nor in any Market Zone determined by the parties to not be\nconducive to the sale of prefabricated modular decking (the “No Sale Market Zones”). Any decks sold in either the Short Market Zones or the No Sale Market Zones shall nonetheless be subject to the Threshold Royalty Fees.\nExhibit A sets forth the agreed upon Short Market Zones and the No Sale Market Zones.\n(6)\nThe total of Threshold Royalty Fees paid during an Annual Year shall be credited against the total guaranteed minimum royalty fees required for that same Annual Year.\n(7)\nUniversal shall notify USA in writing within 30 days of the grant of any new Market Zone under the Universal SF&I, which new Market Zone shall automatically become subject to this Agreement. Universal’s notification to\nUSA shall also state the “classification” into which the new Market Zone shall be placed (the 12-Month Market Zones, 9-Month Market Zones, etc. . ) which classification USA shall have 15 days to object to in writing. If USA\ndoes not object to the proposed classification, Exhibit A to this Agreement shall be deemed to be amended by Universal’s notification as applicable to reflect the new Market Zone. If USA does object to the proposed classification\nby Universal, the parties agree to work in good faith to resolve the classification dispute within 10 business days of USA’s objection or submit the matter to the dispute resolution procedures set forth in Section 25.\n(8)\nFor any new Market Zone granted to Universal following the Effective Date, and which classification the parties agree to, the timing schedule for the guaranteed minimum royalty fees set forth in this Section will begin to run as of\nthe date of grant of the new Market Zone to Universal.\n(9)\nThe guaranteed minimum royalty fees described in this Section shall remain in full force and effect so long as Universal continues any utilization of the Intellectual Property.\n(10) All payments described in this Section are to be gross payments and shall be made without deduction, other than such tax or other amount that Universal is required to deduct or withhold by law, and in regard to any such\ndeduction Universal shall use all reasonable endeavors to assist USA to claim recovery or exemption under any double taxation or similar agreement, and evidence as to the payment of any such tax or sum withheld shall be\nprovided by Universal to USA.\nPage8of17\nSection 10. Accounting for Fees and Payment\n(1)\nThreshold Royalty Fees shall be calculated on a quarterly basis based on a calendar year, and each quarter’s royalty fees shall be paid within 30 days after the end of that quarter. Guaranteed minimum royalty fees, if applicable,\nshall be calculated and paid within 30 days after the close of each applicable Annual Year.\n(2)\nUniversal shall pay USA’s invoices for any representative services under Section 4 within thirty (30) days after the date of the invoice.\n(3)\nUniversal shall pay USA interest at the rate of 1.5 percent per month from the due date on any payment due hereunder not received by USA on the due date.\n(4)\nUnless otherwise directed by USA in writing, payments shall be made to USA by wire to a bank in the United States designated by USA in writing in United States dollars.\n(5)\nUniversal shall at all times during the continuance of this Agreement keep at its usual place of business complete sales records and make true and correct entries therein at the earliest opportunity for the purpose of showing the\nquantity and selling prices of each distinct Product sold by it directly or indirectly per Market Zone and Home Depot Store. USA shall have the right at any reasonable time, by its authorized representatives, to examine said sales\nrecords for the purpose of and to the extent necessary for verifying the accuracy of Universal’s performance under this Agreement.\nSection 11. Opt-Out Option and Alternative Rights of Use\n(1)\nNotwithstanding anything to the contrary contained herein, Universal may choose to permanently opt out of any Market Zone existing as at the Effective Date or granted following the Effective Date (“Opt Out Zones”). Exhibit A\nsets forth the agreed upon Opt Out Zones as of the Effective Date.\n(2)\nUniversal shall notify USA of any new Opt Out Zones within 30 days of Universal’s election, but in any event at least 15 days prior to its cessation of activity in Market Zone under this Agreement.\n(3)\nUniversal shall not have any rights to the Intellectual Property or the Deck Process, nor any Threshold Royalty Fee obligations, in any Market Zone which it has elected to opt out of.\n(4)\nShould Universal cease its relationship with Home Depot in any Market Zone, Universal shall then have 30 days to notify USA of its election to continue its use of the Intellectual Property and the Deck Process in that Market\nZone, on a non-exclusive basis, subject to the Threshold Royalty Fee obligation of this Agreement but the Threshold Royalty Fee shall be calculated on all decks thereafter sold by Universal in such Market Zone as opposed to\ndecks sold in Home Depot Stores in such Market Zone. Universal guarantees that the annual Threshold Royalty Fee in any such Market Zone, pro rated for the first year as applicable, shall be no less than an amount equal to 25\ndecks per Home Depot Store existing in that Market Zone.\nSection 12. First Refusal\nUniversal is hereby granted a right of first refusal to any new territory in which USA seeks to license its Intellectual Property for the Deck Process. This right shall expire twelve months from the Effective Date. USA shall notify Universal\nof any new territory USA seeks to license. The notice shall include a statement of the time within which Universal must act to exercise it’s right of first refusal. To exercise the right of first refusal, Universal shall within 15 days of USA’s\nnotification give notice to USA of Universal’s commitment to include such new territory under this Agreement. Any new territory so included shall be subject to Threshold Royalty Fees provided for in Section 9 as well as the guaranteed\nminimum royalty fees of Section 9. The timeline for such guaranteed minimum royalty fees will begin to run as of the date of Universal’s election to exercise this right of first refusal. This right of first refusal shall not apply to any Market\nZone which Universal has opted out of in accordance with Section 11.\nPage9of17\nSection 13. Indemnification and Release\n(1)\nUniversal shall indemnify USA and hold it harmless against and from any liability, claims, damages, and / or expenses whatsoever in any way arising directly or indirectly out of Universal’s manufacture, distribution, marketing,\nservice, testing, sale, installation or use of the Product or the Deck Process and Universal hereby further releases USA from any such liability, claims, damages or expenses.\n(2)\nNothing contained in this Agreement shall be construed as:\n(a) Requiring the filing by USA of any trademark or patent application, the securing or maintaining of any trademark or patent in force after the Effective Date. Notwithstanding the forgoing, USA shall take such steps as it deems\nreasonable to protect its Trademarks and Licensed Patents;\n(b) A warranty or representation by USA as to the validity or scope of any patent;\n(c) A warranty or representation by USA that any manufacture, sale, or use hereunder will be free from infringement of patents or trademarks owned by others than USA, provided, however, USA shall cooperate with and render\nreasonable assistance to Universal in the defense of any patent or trademark infringement action on terms mutually acceptable to the parties;\n(d) Conferring by implication, estoppel or otherwise upon Universal any license or other right under any patent or trademark except rights expressly granted hereunder to Universal; or\n(e) Other than as specifically set forth in Section 2(5), a warranty by USA as to the accuracy, sufficiency or suitability for use of the Intellectual Property or Deck Process licensed and made available hereunder or for the quality or\nquantity of any Product or processes made by the use thereof, and USA assumes no responsibility or liability, including liability for consequential damages or loss of profit, which might arise out of the use by Universal of said\ninformation.\nSection 14. Improvements\n(1)\nAny inventions, improvements, modifications, patents or patent applications made or acquired by Universal applicable to the Product shall be immediately and fully disclosed by Universal to USA. USA shall have prior approval,\nwhich approval must be made in writing, to any changes in designs, techniques, procedures, Product and Product parts. Universal shall grant and hereby grants to USA a complete, worldwide, unrestricted, irrevocable right and\nlicense, together with the right to sublicense others, under all of said inventions, improvements, patents and patent applications for the full term of said patents. USA’s license shall be non-exclusive.\n(2)\nIn the event Universal does not wish to file patent applications on any of such inventions and improvements, it will so notify USA prior to any public divulging thereof and upon the request of USA, execute and procure the\nexecution of any and all patent applications and all papers necessary or desirable to enable USA to protect such inventions or improvements and whatever assignments or transfer instruments are necessary or required to effectuate\nownership of the rights in USA in any and all countries of the world which USA may elect. Any expense incurred in the prosecution of such patent applications by USA shall be borne by USA. It is agreed that Universal shall have\nthe right to use in the Market Zones such patent or patents non-exclusively and free of charge for the full term of said patent or patents.\nSection 15. United States Government Regulations\n(1)\nUniversal agrees that it will not, without the prior written consent of USA, sell, lease or make available any of the Product, or disclose or sublicense any of the Intellectual Property or Deck\nPage 10 of 17\nProcess to any person, or any government or agency of any country, if such sale, lease, shipment, disclosure or sublicense would be regarded by the United States Government as a breach of the Foreign Assets Control Regulations\nor the Transaction Control Regulations.\n(2)\nIt is further understood that Universal will obtain from any customer or subcontractor or supplier, if so requested by USA, a declaration that none of the Product or Intellectual Property or Deck Process will be sold, conveyed,\nleased or revealed to any person or movement agency against the provisions of the applicable United States laws and regulations and the grant conveyed herein.\nSection 16. Duration and Termination\n(1)\nThis Agreement shall terminate upon the Expiration Date unless otherwise agreed to by the parties or sooner terminated as herein provided.\n(2)\nThis Agreement will be deemed to have terminated in the event Universal opts out of each and every Market Zone in accordance with the terms of Section 11.\n(3)\nThis Agreement will be deemed to have terminated in the event Universal is substantially prevented from utilizing the Deck Process or the Intellectual Property due to infringement or similar claims against the USA Licensed\nPatents or Trademarks.\nSection 17. Defaults and Waivers\nIn the event either party shall be in default by failing to observe or fulfill any condition or representation of this Agreement (the “Defaulting Party”), the other party (the “Non Defaulting Party”) shall have the right to serve upon such\nDefaulting Party a written notice specifying such default, requesting the remedying thereof within thirty (30) days from the date of said notice. If such default is not satisfactorily remedied within said period, the Non Defaulting Party may\nserve the Defaulting Party with a written notice of immediate termination of this Agreement, upon which all rights and licenses, except those which are irrevocable or which may have accrued hereunder at the date of such notice, shall be\ncancelled, and each party will execute whatever documents may be necessary to return the rights or property of the other party which may have been acquired hereunder. The Non Defaulting Party may choose to submit the issue to the\ndispute resolution procedures of Section 25, rather than terminating this Agreement. No waiver of any of the terms and conditions of this Agreement shall be binding or effectual for any purpose unless expressed in writing and signed by\nthe party hereto giving the same, and any such waiver shall be effective only in the specific instance and for the purpose given. No failure or delay on the part of either party hereto in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.\nSection 18. Insolvency or Change in Control\n(1)\nIn the event that Universal shall be either deemed insolvent, make an assignment for the benefit of a creditor, or be legally obliged to cease to trade or to wind-up its affairs and go into liquidation, USA shall be entitled to give\nwritten notice terminating this Agreement forthwith without prejudice to the rights of either USA or Universal which may have accrued hereunder at the date of such termination.\n(2)\nUniversal shall, in the event that the effective control of Universal passes from the hands of the persons, firms or corporations in whose hands it is at the date of this Agreement, inform USA in writing forthwith of any such change\nin control. Should such change in control pass control into the hands of some party which USA in its reasonable judgment considers would not be commercially or otherwise favorably or impartially disposed towards the business\ninterest of USA (including the continued exploitation of sales of the Product under this Agreement), USA shall be entitled by notice\nPage 11 of 17\nin writing to terminate this Agreement forthwith without prejudice to rights already accrued hereunder.\nSection 19. Relationships\nIt is understood that in giving effect to this Agreement, Universal shall not be a partner, agent, franchisee or employee of USA for any purpose and that its relationship to USA shall be that of an independent contractor. Universal shall not\nhave the right to enter into contracts, nor incur expenses or liabilities, on behalf of USA.\nSection 20. Force Majeure\nNeither party shall be liable for failure to perform its part of this Agreement when the failure is due to causes beyond its reasonable control such as, but not limited to, fire, flood, strikes, labor troubles or other industrial disturbances,\ninevitable accidents, war (declared or undeclared), embargoes, blockades, legal restrictions, riots, insurrections or governmental regulations.\nSection 21. Effect of Termination\nUpon termination or expiration of this Agreement, Universal promises:\n(a) To cease all manufacture and sale of the Product;\n(b) To cease the use of all Intellectual Property, the Deck Process and the Licensed Patents;\n(c) To take all action necessary (i) to transfer to USA or (at USA’s option) to cancel any and all rights Universal may have to use the Intellectual Property, Deck Process and Licensed Patents and (ii) to provide USA with suitable evidence\nof such cancellations if USA exercises its option to demand them;\n(d) To return to USA all documents (including but not limited to any reproductions, notes or summaries), models and other materials relating to the Intellectual Property, Deck Process and Licensed Patents;\n(e) To not withhold any moneys accrued, due and payable by Universal to USA hereunder, on the ground of a dispute arising out of or in relation to this Agreement and as set-off against any claim for damages sought to be put forward by\nUniversal; and\nSection 22. Nonassignability\nThis Agreement and each and every covenant, term and condition herein is binding upon and inures to the benefit of the parties hereto and their respective successors, but neither this Agreement nor any rights hereunder may be assigned\nor sublicensed, directly or indirectly, voluntarily or by operation of law, by Universal without first receiving the prior written consent of USA. Notwithstanding the forgoing, Universal shall have the right, subject to the consent of USA,\nwhich consent shall not be unreasonably withheld, to sublicense its rights hereunder subject to terms and conditions customary for sublicensing agreements, all to be negotiated in good faith between the parties and set forth in an\nagreed-upon sublicensing agreement by and between Universal and its intended sublicensee, to which USA shall be a third-party beneficiary. Under no event shall any sublicense agreement release Universal from its obligations and\nresponsibilities set forth in this Agreement. USA shall in no event be required to consent to any sublicense agreement where, in the opinion of USA’s counsel, such agreement could be deemed to create a franchise relationship for USA.\nPage 12 of 17\nSection 23. Notices and Payments\nUntil further notice, to be legally effective any payment or notice which the parties are required or permitted to give to each other pursuant to any of the provisions of this Agreement shall be sent by certified and registered airmail or by\novernight or second day delivery via an internationally recognized carrier such as Federal Express or UPS to the other party at the following address set after its name:\nUSA Deck, Inc.\nUniversal Forest Product, Inc.\n1041 Cannons Court\n2801 E. Beltline N.E .\nWoodbridge, Virginia 22191-1434\nGrand Rapids, Michigan 49525\nAttn: Daniel L. Betts, President\nAttn: Kent Bathurst, V.P.\nThe effective date of any such notice shall be two days following date of mailing.\nSection 24. Restrictive Covenants\nUpon the Effective Date and for a period of two (2) years following the termination of this Agreement for any reason, Universal (for itself and any affiliate or subsidiary) shall not directly or indirectly: invest in, own, render consulting\nservices to, or operate any entity that engages in the manufacture, sale or installation of Product. Notwithstanding the foregoing, this non-competition restriction shall run for a period of five (5) years in the USA Zones and any other state\nor geographical area in which USA is operating in directly or through a licensee (other than through Universal) as of the date of termination of this Agreement for any reason. Furthermore, upon the Effective Date and for a period of five\n(5) years following the termination of this Agreement for any reason, Universal (for itself and any affiliate or subsidiary) shall not, and shall cause its affiliates, successors and assigns not to, hire or directly solicit for hire any person then\nan employee of USA. It is agreed that the period of time during which Universal is prohibited from engaging in such practices pursuant to this section shall be extended by any length of time during which Universal is in breach of this\nsection. Notwithstanding the foregoing, this Noncompetition clause shall not prohibit any party from owning a one percent (1%) or less interest in any company whose shares are traded on any public securities exchange.\nIt is understood by and between the parties hereto that the foregoing covenants are essential elements to the relationship between the parties. The parties agree that an award of damages alone for breach of this provision would be\ninadequate protection for USA, as the injury would be irreparable, and therefore that equitable or injunctive relief is appropriate as well. In addition, the parties agree that USA shall be entitled to collect its reasonable attorney’s fees if it\nshould prevail in an action for breach of the covenants of this section.\nSection 25. Dispute Resolution\nThe parties agree that any controversy other than a claim for injunctive relief (“Dispute”) arising out of this Agreement shall be resolved in accordance with the following procedures. A Dispute may include, without limitation, any claim\nwith respect to either party’s obligations or its performance, failure to perform, adequacy of performance or good faith exercise of its rights under the Agreement. The parties shall endeavor in good faith to promptly, reasonably, and\nequitably settle all Disputes on an informal basis in the normal course of business. All Disputes which the parties cannot so settle in the normal course of business shall be negotiated and mediated in accordance with this Section.\nEither party (the “initiating party”) may commence a negotiation of a Dispute (“Negotiation”) by serving on the other party (the “responding party”) a written statement of the nature and substance of\nPage 13 of 17\nthe Dispute, a brief summary of its position with respect to the Dispute, its justifications therefor, and its proposal for resolution of the Dispute. Within ten (10) days, the responding party shall prepare and serve on the initiating party a\nwritten statement of its position in response. These position papers may be served in accordance with the notice provisions of this Agreement to the authorized representatives of the parties (“Executives”).\nWithin fourteen (14) days of exchanging position papers, the parties shall conduct a face-to-face or telephonic meeting of the Executives and appropriate members of their respective management teams with knowledge of the matters\nunderlying the Dispute and full authority to resolve the Dispute. If the Executives cannot agree to a resolution of the Dispute within five (5) days thereafter, they may continue discussions or either party may invoke the mediation\nprocedures set forth hereafter by giving notice to the other party.\nEither party may invoke non-binding mediation (“Mediation”) upon conclusion of the Negotiation procedures described above by serving a notice of mediation on the other party and proposing a mediator. The other party shall respond\nwithin five (5) business days advising as to whether the proposed mediator is acceptable and, if not, proposing an alternative mediator. If the parties cannot agree within an additional two (2) business days to an acceptable mediator, then\non the second business day after delivery of the other party’s response, each party shall concurrently deliver to the other by an overnight delivery service of general commercial use and acceptance (such as Airborne, UPS, or Federal\nExpress) a list of five proposed mediators in order of preference. The Person ranking highest on the two lists (measured by a total point system of 5 points for the first choice on each list, 4 points for the second choice on each list, etc.)\nshall be designated the mediator unless such Person refuses the designation, in which event the next highest ranking Person shall be designated the mediator. If no Person appears on both lists, or no Person who appears on both lists\naccepts the designation, and the parties cannot within five (5) additional days agree to a mediator, the parties shall each then designate a Person (“designee”) who shall together decide on and confirm appointment of the mediator. If the\ndesignees are unable to agree, the designees shall apply to the Center for Public Resources to appoint a mediator in accordance with its Model Procedure for Mediation of Business Disputes as then in effect. The Person so appointed (the\n“Mediator”) shall be compensated at an hourly rate (or an alternative compensation arrangement) to be agreed upon between the parties and the Mediator prior to appointment. The parties shall each pay one half the Mediator’s fee and\nexpenses.\nEach party shall prepare a written statement of the Dispute and its position, a summary of the prior negotiations, and a final proposal of settlement. Within fifteen (15) days of appointment of the Mediator, the parties shall submit such\nstatement to the Mediator, together with such supporting or evidentiary materials or other matter as the parties deem appropriate to the Dispute. Concurrently, the parties shall deliver a copy of all submitted materials to the other party.\nAny further submissions shall be made only with the prior consent of the Mediator and all submissions shall be copies to the other party. No “discovery” or other proceeding shall be conducted except as directed by the Mediator. The\nMediator may, at his option, hold hearings or conduct interviews, discussions, or negotiation sessions with any Person or entity, which he believes to be relevant to the Dispute. The Mediator may in his discretion conduct such interviews\nor discussions unilaterally or with the parties present. The Mediation shall be generally conducted in accordance with the Model Procedures for Mediation of Business Disputes as then in effect, or pursuant to such other procedures as the\nparties may agree. The parties shall endeavor to assist the Mediator in concluding the Mediation within a reasonable time, with a target of not later than thirty (30) days after initial submission of materials to the Mediator.\nAt any time, after the parties have engaged in reasonable mediation activity, the Mediator may declare the Mediation to be terminated, and either party may elect to terminate the Mediation at any time by giving notice to the other party\nand the Mediator, if the Dispute is not resolved within ninety (90) days after the appointment of the Mediator. If, upon termination of the Mediation, the Dispute remains\nPage 14 of 17\nunresolved, both parties shall reserve all rights to seek a judicial resolution of the Dispute in accordance with applicable law, except as otherwise restricted by this Agreement, and to receive their costs and reasonable attorneys fees in a\nprevailing action. The resolution of any Dispute shall not constitute an amendment to the Agreement or a waiver or modification of either party’s rights.\nSection 26. Unenforceable Terms\nIn the event any term or provision of this Agreement shall for any reason be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other term or provisions hereof. In such an\nevent, this Agreement shall be interpreted and construed as if such term or provision, to the extent the same shall have been held invalid, illegal or unenforceable, had never been contained herein.\nSection 27. Governing Law and Construction\nThis Agreement shall be construed and enforced in accordance with the laws of the Commonwealth of Virginia and the United States of America. Venue for any dispute arising hereunder shall be Prince Williams County, Virginia. The\nEnglish language shall control any interpretation of terms. This Agreement shall be construed without regard to any presumption or any other rule requiring construction against the party who caused it to have been drafted. The headings\nof sections and subsections of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof. When the context requires, the gender of all words used\nherein shall include the masculine, feminine and neuter and the number of all words shall include the singular and plural. Use of the words “herein”, “hereof”, “hereto” and the like in this Agreement shall be construed as references to this\nAgreement as a whole and not to any particular Article, Section or provision of this Agreement, unless otherwise noted.\nSection 28. Other Agreements; Amendments, Miscellaneous\n(1)\nThis Agreement represents the full and complete understanding and agreement of the parties and supersedes and cancels any prior agreements between the parties or their predecessors relating to Product, the Intellectual Property,\nthe Deck Process or otherwise, other than in regard to previously executed agreements of confidentiality or similar restrictive covenants, which shall be interpreted in conduction with this Agreement to increase but in no event to\nlimit the protections of this Agreement, in order to provide the strongest protection to the party seeking safekeeping of its proprietary and confidential information. This Agreement may be amended or nullified only by a writing\nexecuted by officers of both parties.\n(2)\nExcept as may otherwise be required by law or regulation or by court or administrative agency order, the parties hereto agree that no press release or similar public announcements shall be made with respect to the proposed\ntransactions unless the parties hereto have consented in writing to such disclosure, which consent shall not be unreasonably withheld.\n(3)\nUpon termination or expiration of this Agreement, the terms and conditions of this Agreement which by their reasonable construction are intended to survive termination or expiration of this Agreement shall, in such event, remain\nin effect, including but not limited to those pertaining to Universal’s covenants, representations and warranties to USA.\n(4)\nThis Agreement may be executed in multiple counterparts, each of which shall be deemed an original but all of which together shall constitute a single instrument. Execution and delivery of this Agreement by exchange of\nfacsimile copies bearing facsimile signature of a party shall constitute a valid and binding execution and delivery of this agreement by such party.\nPage 15 of 17\n(5)\nThe parties did not engage the services of any broker for the procurement of this transaction. Each party hereto shall bear its own costs and expenses (including accounting costs and attorneys’ fees), except that each party hereto\nagrees to pay the costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the other parties in successfully (a) enforcing any of the terms of this Agreement or (b) proving that another party breached any\nof the terms of this Agreement or related documents.\n(6)\nExcept as may otherwise be required by law or regulation or by court or administrative agency order, the parties hereto agree that no press release or similar public statements shall be made with respect to the proposed transactions\nunless the other party has consented to such disclosure, which consent shall not be unreasonably withheld.\nSection 29. Effective Date\nThe Effective Date shall be on or before March 31, 2003, or such other date as mutually agreed to by the parties.\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in their corporate names by their duly authorized representatives.\nUSA DECK, INC .\nUNIVERSAL FOREST PRODUCTS, INC.\nBY:\n/s/ Daniel L. Betts\nBY: /s/ Matthew J. Missad\nDaniel L. Betts, President\nNAME:\nMatthew J. Missad\nTITLE:Exec, VP\n7DATE:\n3/31/03\nDATE:3/31/03\nPage 16 of 17\nEXHlBIT A\n12-Month Market Zones\n9-Month Market Zones\nShort Market Zones\nNo Sale Market Zones\nOpt Out Zones\nPage 17 of 17
f7874fb1b1650af90316fe514bbbccd3.pdf	effective_date jurisdiction party	Exhibit 10.53\nRESTRICTIVE COVENANT AND CONFIDENTIALITY AGREEMENT\nIn exchange for the mutual promises and consideration set forth below, this Restrictive Covenant and Confidentiality\nAgreement (“Agreement”) is entered into by and between the Federal Home Loan Mortgage Corporation (“Freddie Mac”\nor “Company”) and Donald J. Bisenius (“Executive”), effective as of this 11th day of March, 2001.\nI. Definitions\nThe following terms shall have the meanings indicated when used in this Agreement.\nA. Competitor: The following entities, and their respective parents, successors, subsidiaries, and affiliates are\ncompetitors: (i) Fannie Mae (ii) all Federal Home Loan Banks (including the Office of Finance); and (iii) such other\nentities to which Executive and the Company may agree in writing from time-to-time.\nB. Confidential Information: Information or materials in written, oral, magnetic, digital, computer, photographic, optical,\nelectronic, or other form, whether now existing or developed or created during the period of Executive’s employment\nwith Freddie Mac, that constitutes trade secrets and/or proprietary or confidential information. This information includes,\nbut is not limited to: (i) all information marked Proprietary or Confidential; (ii) information concerning the components,\ncapabilities, and attributes of Freddie Mac’s business plans, methods, and strategies; (iii) information relating to tactics,\nplans, or strategies concerning shareholders, investors, pricing, investment, marketing, sales, trading, funding, hedging,\nmodeling, sales and risk management; (iv) financial or tax information and analyses, including but not limited to,\ninformation concerning Freddie Mac’s capital structure and tax or financial planning; (v) confidential information about\nFreddie Mac’s customers, borrowers, employees, or others; (vi) pricing and quoting information, policies, procedures,\nand practices; (vii) confidential customer lists; (viii) proprietary algorithms; (ix) confidential contract terms;\n(x) confidential information concerning Freddie Mac’s policies, procedures, and practices or the way in which Freddie\nMac does business; (xi) proprietary or confidential data bases, including their structure and content; (xii) proprietary\nFreddie Mac business software, including its design, specifications and documentation; (xiii) information about Freddie\nMac products, programs, and services which has not yet been made public; (xiv) confidential information about Freddie\nMac’s dealings with third parties, including dealers, customers, vendors, and regulators; and/or (xv) confidential\ninformation belonging to third parties to which Executive received access in connection with Executive’s employment\nwith Freddie Mac. Confidential Information does not include general skills, experience, or knowledge acquired in\nconnection with Executive’s employment with Freddie Mac that otherwise are generally known to the public or within\nthe industry or trade in which Freddie Mac operates.\nC. Severance: Cash compensation paid pursuant to Freddie Mac’s Severance Policy.\n2\nD. Severance Policy: Freddie Mac Policy 3-254 .1 (Severance — Officers), or any subsequent and superceding severance\npolicy.\nII. Non-Competition\nExecutive recognizes that as a result of Executive’s employment with Freddie Mac, Executive has access to and\nknowledge of critically sensitive Confidential Information, the improper disclosure or use of which would result in grave\ncompetitive harm to Freddie Mac. Therefore, Executive agrees that neither during Executive’s employment with Freddie\nMac, nor for the twelve (12) months immediately following termination of Executive’s employment for any reason, will\nExecutive consider offers of employment from, seek or accept employment with, or otherwise directly or indirectly\nprovide professional services to any Competitor. Executive acknowledges and agrees that this covenant has unique,\nsubstantial and immeasurable value to Freddie Mac, that Executive has sufficient assets and skills to provide a livelihood\nfor Executive while this covenant remains in force, and that this covenant will not interfere with Executive’s ability to\nwork consistent with Executive’s experience, training and education. This non-competition covenant applies regardless\nof whether Executive’s employment is terminated by Executive, by Freddie Mac, or by a joint decision.\nIII. Non-Solicitation\nDuring Executive’s employment with Freddie Mac and for a period of twelve (12) months after Executive’s termination\ndate, Executive will not solicit, attempt to solicit or assist another in soliciting any Freddie Mac managerial employee\n(including manager-level, Executive-level, or officer-level employee) with whom Executive worked, or any employee\nwhom Executive directly or indirectly supervised at Freddie Mac, to leave the employee’s employment with Freddie Mac\nfor purposes of employment or for the rendering of professional services. This prohibition against solicitation does not\napply if Freddie Mac has notified the employee being solicited that his/her employment with the Company will be\nterminated pursuant to a corporate reorganization or reduction-in-force.\n3\nIV. Treatment of Confidential Information\nA. Non-Disclosure. Executive recognizes that Freddie Mac is engaged in an extremely competitive business and that, in\nthe course of performing Executive’s job duties, Executive will have access to and gain knowledge about Confidential\nInformation. Executive further recognizes the importance of carefully protecting this Confidential Information in order\nfor Freddie Mac to compete successfully. Therefore, Executive agrees that Executive will neither divulge Confidential\nInformation to any persons, including to other Freddie Mac employees who do not have a Freddie Mac business-related\nneed to know, nor make use of the Confidential Information for the Executive’s own benefit or for the benefit of anyone\nelse other than Freddie Mac. Executive further agrees to take all reasonable precautions to prevent the disclosure of\nConfidential Information to unauthorized persons or entities, and to comply with all Company policies, procedures, and\ninstructions regarding the treatment of such information.\nB. Return of Materials. Executive agrees that upon termination of Executive’s employment with Freddie Mac for any\nreason whatsoever, Executive will deliver to Executive’s immediate supervisor all tangible materials embodying\nConfidential Information, including, but not limited to, any documentation, records, listings, notes, files, data, sketches,\nmemoranda, models, accounts, reference materials, samples, machine-readable media, computer disks, tapes, and\nequipment which in any way relate to Confidential Information, whether developed by Executive or not. Executive\nfurther agrees not to retain any copies of any materials embodying Confidential Information.\nC. Post-Termination Obligations. Executive agrees that after the termination of Executive’s employment for any reason,\nExecutive will not use in any way whatsoever, nor disclose any Confidential Information learned or obtained in\nconnection with Executive’s employment with Freddie Mac without first obtaining the written permission of the Senior\nVice President of Human Resources of Freddie Mac. Executive further agrees that, in order to assure the continued\nconfidentiality of the Confidential Information, Freddie Mac may correspond with Executive’s future employers to\nadvise them generally of Executive’s exposure to and knowledge of Confidential Information, and Executive’s\nobligations and responsibilities regarding the Confidential Information. Executive understands and agrees that any such\ncontact may include a request for assurance and confirmation from such employer(s) that Executive will not disclose\nConfidential Information to such employer(s), nor will such employer(s) permit any use whatsoever of the Confidential\nInformation. To enable Freddie Mac to monitor compliance with the obligations imposed by this Agreement, Executive\nfurther agrees to inform in writing Freddie Mac’s Senior Vice President of Human Resources of the identity of\nExecutive’s subsequent employer(s) and Executive’s prospective job title and responsibilities prior to beginning\nemployment. Executive agrees that this notice requirement shall remain in effect for twelve (12) months following the\ntermination of Executive’s Freddie Mac employment.\n4\nV. Consideration Given to Executive\nIn exchange for agreeing to be employed by Freddie Mac on the terms, conditions, and restrictions stated in this\nAgreement, Freddie Mac will provide the Executive with the following consideration, each of which itself is adequate\nconsideration for Executive’s agreement to be bound by the provisions of this Agreement:\nA. Twelve-Month’s Severance. Executive acknowledges that under Freddie Mac’s Severance Policy, Executive may be\neligible to receive Severance upon termination of employment, the duration of which is within the discretion of Freddie\nMac. In exchange for Executive agreeing to be bound by this Agreement, Freddie Mac agrees to provide Executive with\nSeverance pursuant to the Severance Policy for a period of twelve (12) months following termination, provided the\ncircumstances of the Executive’s termination qualify for Severance under the Severance Policy. In the event that at the\ntime of termination, Executive occupies a position that is an “Executive Officer” of Freddie Mac as Freddie Mac\ninterprets that term to be defined in Section 1303(7) of the Federal Housing Enterprise Financial Safety and Soundness\nAct of 1992 and related administrative guidance, then Executive acknowledges that receipt of the twelve (12) months\nseverance under this paragraph is contingent upon any legally required approval from the Office of Federal Housing\nEnterprise Oversight (“OFHEO”). If such approval is not received, then Executive will not be eligible for Severance. The\ntwelve (12)-month Severance guarantee provided by this Paragraph V(A) is in place of, and not in addition to, Severance\nto which Executive would otherwise be entitled under any other agreement between Executive and Freddie Mac.\nB. Long-Term Incentive Grant. In exchange for Executive agreeing to be bound by this Agreement, Freddie Mac further\nagrees to provide Executive with a long-term incentive grant as approved by the Human Resources Committee of the\nFreddie Mac Board of Directors on March 2, 2001. Executive’s failure to execute and return this Agreement to Freddie\nMac on or before March 30, 2001, will result in Executive’s ineligibility for such long-term incentive grant otherwise\nprovided pursuant to this Paragraph V(B).\nVI. Reservation of Rights\nExecutive agrees that nothing in this Agreement constitutes a contract or commitment by Freddie Mac to continue\nExecutive’s employment in any job position for any period of time, nor does anything in this Agreement limit in any way\nFreddie Mac’s right to terminate Executive’s employment at any time for any reason.\nVII. Enforcement\nA. Executive acknowledges that Executive may be subject to discipline, up to and including termination of employment,\nfor Executive’s breach or threat of breach of any provision of this Agreement.\n5\nB. Executive agrees that irreparable injury will result to Freddie Mac’s business interests in the event of breach or\nthreatened breach of this Agreement, the full extent of Freddie Mac’s damages will be impossible to ascertain, and\nmonetary damages will not be an adequate remedy for Freddie Mac. Therefore, Executive agrees that in the event of a\nbreach or threat of breach of any provision(s) of this Agreement, Freddie Mac, in addition to any other relief available,\nshall be entitled to temporary, preliminary, and permanent equitable relief to restrain any such breach or threat of breach\nby Executive and all persons acting for and/or in concert with Executive, without the necessity of posting bond or\nsecurity, which Executive expressly waives.\nC. Executive agrees that each of Executive’s obligations specified in this Agreement is a separate and independent\ncovenant, and that all of Executive’s obligations set forth herein shall survive any termination, for any reason, of\nExecutive’s Freddie Mac employment. To the extent that any provision of this Agreement is determined by a court of\ncompetent jurisdiction to be unenforceable because it is overbroad, that provision shall be limited and enforced to the\nextent permitted by applicable law. Should any provision of this Agreement be declared or determined by any court of\ncompetent jurisdiction to be unenforceable or invalid under applicable law, the validity of the remaining obligations will\nnot be affected thereby and only the unenforceable or invalid obligation will be deemed not to be a part of this\nAgreement.\nD. This Agreement is governed by, and will be construed in accordance with, the laws of the Commonwealth of\nVirginia, without regard to its or any other jurisdiction’s conflict-of-law provisions. Executive agrees that any action\nrelated to or arising out of this Agreement shall be brought exclusively in the United States District Court for the Eastern\nDistrict of Virginia, and Executive hereby irrevocably consents to personal jurisdiction and venue in such court and to\nservice of process by United States Mail or express courier service in any such action.\nE. If any dispute(s) arise(s) between Freddie Mac and Executive with respect to any matter which is the subject of this\nAgreement, the prevailing party in such dispute(s) shall be entitled to recover from the other party all of its costs and\nexpenses, including its reasonable attorneys’ fees.\nVIII. Prior Restrictive Covenant, Non-Competition, Non-Solicitation Agreements\nExcept as provided in Paragraph V(A), this Agreement does not supercede and prior agreement(s) between Executive and\nFreddie Mac. To the extent that any prior agreement(s) between Executive and Freddie Mac contain provisions regarding\nany of the subject matters discussed herein, the provisions that are more restrictive of Executive prevail.\nExecutive has been advised to discuss all aspects of this Agreement with Executive’s private attorney. Executive\nacknowledges that Executive has carefully read and understands the terms and provisions of this Agreement and\nthat they are reasonable. Executive signs this Agreement voluntarily and accepts all obligations contained in this\nAgreement in exchange for the consideration to be given to Executive as outlined above, which Executive\nacknowledges is adequate and satisfactory, and which Executive further acknowledges Freddie Mac is not\notherwise obligated to provide to Executive. Neither Freddie Mac nor its agents, representatives, directors,\nofficers or employees have made any representations to\n6\nExecutive concerning the terms or effects of this Agreement, other than those contained in this Agreement.\nBy: /s/ Donald J. Bisenius\n[name of employee]\nFreddie Mac\nBy: /s/ Paul T. Peterson	Exhibit 10.53\nRESTRICTIVE COVENANT AND CONFIDENTIALITY AGREEMENT\nIn exchange for the mutual promises and consideration set forth below, this Restrictive Covenant and Confidentiality\nAgreement (”A greement”) is entered into by and between the Federal Home Loan Mortgage Corporation (”Freddie Mac”\nor ”Company”) and Donald]. Bisenius (”Executive”), effective as of this 11th day of March, 2001.\n1. Definitions\nThe following terms shall have the meanings indicated when used in this Agreement.\nA. C ompetitor: The following entities, and their respective parents, successors, subsidiaries, and affiliates are\ncompetitors: (i) Fannie Mae (ii) all Federal Home Loan Banks (including the Office of Finance) ,- and (iii) such other\nentities to which Executive and the Company may agree in writing from time-to-time.\nB. Confidential Information: Information or materials in written, oral, magnetic, digital, computer, photographic, optical,\nelectronic, or other form, whether now existing or developed or created during the period of Executive’s employment\nwith Freddie Mac, that constitutes trade secrets and/or proprietary or confidential information. This information includes,\nbut is not limited to: (i) all information marked Proprietary or Confidential,- (ii) information concerning the components,\ncapabilities, and attributes of Freddie Mac’s business plans, methods, and strategies,- (iii) information relating to tactics,\nplans, or strategies concerning shareholders, investors, pricing, investment, marketing, sales, trading, funding, hedging,\nmodeling, sales and risk management,- (iv) financial or tax information and analyses, including but not limited to,\ninformation concerning Freddie Mac’s capital structure and tax or financial planning,- (v) confidential information about\nFreddie Mac’s customers, borrowers, employees, or others,- (vi) pricing and quoting information, policies, procedures,\nand practices,- (vii) confidential customer lists,- (viii) proprietary algorithms,- (ix) confidential contract terms,-\n(x) confidential information concerning Freddie Mac’s policies, procedures, and practices or the way in which Freddie\nMac does business,- (xi) proprietary or confidential data bases, including their structure and content,- (xii) proprietary\nFreddie Mac business software, including its design, specifications and documentation,- (xiii) information about Freddie\nMac products, programs, and services which has not yet been made public,- (xiv) confidential information about Freddie\nMac’s dealings with third parties, including dealers, customers, vendors, and regulators,- and/or (xv) confidential\ninformation belonging to third parties to which Executive received access in connection with Executive’s employment\nwith Freddie Mac. Confidential Information does not include general skills, experience, or knowledge acquired in\nconnection with Executive’ s employment with Freddie Mac that otherwise are generally known to the public or within\nthe industry or trade in which Freddie Mac operates.\nC. Severance: Cash compensation paid pursuant to Freddie Mac’s Severance Policy.\nD. Severance Policy: Freddie Mac Policy 3-254.1 (Severance — Officers), or any subsequent and supereeding severance\npolicy.\n11. Non-C ompetition\nExecutive recognizes that as a result of Executive’s employment with Freddie Mac, Executive has access to and\nknowledge of critically sensitive Confidential Information, the improper disclosure or use of which would result in grave\ncompetitive harm to Freddie Mac. Therefore, Executive agrees that neither during Executive’ s employment with Freddie\nMac, nor for the twelve (12) months immediately following termination of Executive’s employment for any reason, will\nExecutive consider offers of employment from, seek or accept employment with, or otherwise directly or indirectly\nprovide professional services to any Competitor. Executive acknowledges and agrees that this covenant has unique,\nsubstantial and immeasurable value to Freddie Mac, that Executive has sufficient assets and skills to provide a livelihood\nfor Executive while this covenant remains in force, and that this covenant will not interfere with Executive’s ability to\nwork consistent with Executive’ s experience, training and education. This non-competition covenant applies regardless\nof whether Executive’s employment is terminated by Executive, by Freddie Mac, or by a joint decision.\nIII. Non-Solicitation\nDuring Executive’ s employment with Freddie Mac and for a period of twelve (12) months after Executive’s termination\ndate, Executive will not solicit, attempt to solicit or assist another in soliciting any Freddie Mac managerial employee\n(including manager-level, Executive-level, or officer-level employee) with whom Executive worked, or any employee\nwhom Executive directly or indirectly supervised at Freddie Mac, to leave the employee’s employment with Freddie Mac\nfor purposes of employment or for the rendering of professional services. This prohibition against solicitation does n_ot\napply if Freddie Mac has notified the employee being solicited that his/her employment with the Company will be\nterminated pursuant to a corporate reorganization or reduction-in—foree.\nIV. Treatment of Confidential Information\nA. Non-Disclosure. Executive recognizes that Freddie Mac is engaged in an extremely competitive business and that, in\nthe course of performing Executive’s job duties, Executive will have access to and gain knowledge about Confidential\nInformation. Executive further recognizes the importance of carefully protecting this Confidential Information in order\nfor Freddie Mac to compete successfully. Therefore, Executive agrees that Executive will neither divulge Confidential\nInformation to any persons, including to other Freddie Mac employees who do not have a Freddie Mac business-related\nneed to know, nor make use of the Confidential Information for the Executive’s own benefit or for the benefit of anyone\nelse other than Freddie Mac. Executive further agrees to take all reasonable precautions to prevent the disclosure of\nConfidential Information to unauthorized persons or entities, and to comply with all Company policies, procedures, and\ninstructions regarding the treatment of such information.\nB. Return of Materials. Executive agrees that upon termination of Executive’ s employment with Freddie Mac for any\nreason whatsoever, Executive will deliver to Executive’s immediate supervisor all tangible materials embodying\nConfidential Information, including, but not limited to, any documentation, records, listings, notes, files, data, sketches,\nmemoranda, models, accounts, reference materials, samples, machine- readable media, computer disks, tapes, and\nequipment which in any way relate to Confidential Information, whether developed by Executive or not. Executive\nfurther agrees not to retain any copies of any materials embodying Confidential Information.\nC. Post-Termination Obligations. Executive agrees that after the termination of Executive’s employment for any reason,\nExecutive will not use in any way whatsoever, nor disclose any Confidential Information learned or obtained in\nconnection with Executive’ s employment with Freddie Mac without first obtaining the written permission of the Senior\nVice President of Human Resources of Freddie Mac. Executive further agrees that, in order to assure the continued\nconfidentiality of the Confidential Information, Freddie Mac may correspond with Executive’s future employers to\nadvise them generally of Executive’ s exposure to and knowledge of Confidential Information, and Executive’s\nobligations and responsibilities regarding the Confidential Information. Executive understands and agrees that any such\ncontact may include a request for assurance and confirmation from such employer(s) that Executive will not disclose\nConfidential Information to such employer(s), nor will such employer(s) permit any use whatsoever of the Confidential\nInformation. To enable Freddie Mac to monitor compliance with the obligations imposed by this Agreement, Executive\nfurther agrees to inform in writing Freddie Mac’s Senior Vice President of Human Resources of the identity of\nExecutive’s subsequent employer(s) and Executive’ s prospective job title and responsibilities prior to beginning\nemployment. Executive agrees that this notice requirement shall remain in effect for twelve (12) months following the\ntermination of Executive’ s Freddie Mac employment.\nV. Consideration Given to Executive\nIn exchange for agreeing to be employed by Freddie Mac on the terms, conditions, and restrictions stated in this\nAgreement, Freddie Mac will provide the Executive with the following consideration, each of which itself is adequate\nconsideration for Executive’ 8 agreement to be bound by the provisions of this Agreement:\nA. Twelve-Month' s Severance. Executive acknowledges that under Freddie Mac’ 8 Severance Policy, Executive may be\neligible to receive Severance upon termination of employment, the duration of which is within the discretion of Freddie\nMac. In exchange for Executive agreeing to be bound by this Agreement, Freddie Mac agrees to provide Executive with\nSeverance pursuant to the Severance Policy for a period of twelve (12) months following termination, provided the\ncircumstances of the Executive’ 8 termination qualify for Severance under the Severance Policy. In the event that at the\ntime of termination, Executive occupies a position that is an ”Executive Officer” of Freddie Mac as Freddie Mac\ninterprets that term to be defined in Section 1303(7) of the Federal Housing Enterprise Financial Safety and Soundness\nAct of 1992 and related administrative guidance, then Executive acknowledges that receipt of the twelve (12) months\nseverance under this paragraph is contingent upon any legally required approval from the Office of Federal Housing\nEnterprise Oversight (”OFHEO”). If such approval is not received, then Executive will not be eligible for Severance. The\ntwelve (12)-month Severance guarantee provided by this Paragraph WA) is in place of, and not in addition to, Severance\nto which Executive would otherwise be entitled under any other agreement between Executive and Freddie Mac.\nB. Long-Term Incentive G rant. In exchange for Executive agreeing to be bound by this Agreement, Freddie Mac further\nagrees to provide Executive with a long-term incentive grant as approved by the Human Resources Committee of the\nFreddie Mac Board of Directors on March 2, 2001. Executive’s failure to execute and return this Agreement to Freddie\nMac on or before March 30, 2001, will result in Executive’s ineligibility for such long-term incentive grant otherwise\nprovided pursuant to this Paragraph V (B).\nVI. Reservation of Rights\nExecutive agrees that nothing in this Agreement constitutes a contract or commitment by Freddie Mac to continue\nExecutive’s employment in any job position for any period of time, nor does anything in this Agreement limit in any way\nFreddie Mac’s right to terminate Executive’s employment at any time for any reason.\nVII. Enforcement\nA. Executive acknowledges that Executive may be subject to discipline, up to and including termination of employment,\nfor Executive’s breach or threat of breach of any provision of this Agreement.\nB. Executive agrees that irreparable injury will result to Freddie Mac’s business interests in the event of breach or\nthreatened breach of this Agreement, the full extent of Freddie Mac’s damages will be impossible to ascertain, and\nmonetary damages will not be an adequate remedy for Freddie Mac. Therefore, Executive agrees that in the event of a\nbreach or threat of breach of any provision(s) of this Agreement, Freddie Mac, in addition to any other relief available,\nshall be entitled to temporary, preliminary, and permanent equitable relief to restrain any such breach or threat of breach\nby Executive and all persons acting for and/or in concert with Executive, without the necessity of posting bond or\nsecurity, which Executive expressly waives.\nC. Executive agrees that each of Executive’ s obligations specified in this Agreement is a separate and independent\ncovenant, and that all of Executive’s obligations set forth herein shall survive any termination, for any reason, of\nExecutive’s Freddie Mac employment. To the extent that any provision of this Agreement is determined by a court of\ncompetent jurisdiction to be unenforceable because it is overbroad, that provision shall be limited and enforced to the\nextent permitted by applicable law. Should any provision of this Agreement be declared or determined by any court of\ncompetent jurisdiction to be unenforceable or invalid under applicable law, the validity of the remaining obligations will\nnot be affected thereby and only the unenforceable or invalid obligation will be deemed not to be a part of this\nAgreement.\nD. This Agreement is governed by, and will be construed in accordance with, the laws of the Commonwealth of\nVirginia, without regard to its or any other jurisdiction’s conflict-of-law provisions. Executive agrees that any action\nrelated to or arising out of this Agreement shall be brought exclusively in the United States District Court for the Eastern\nDistrict of Virginia, and Executive hereby irrevocably consents to personal jurisdiction and venue in such court and to\nservice of process by United States Mail or express courier service in any such action.\nE. If any dispute(s) arise(s) between Freddie Mac and Executive with respect to any matter which is the subject of this\nAgreement, the prevailing party in such dispute(s) shall be entitled to recover from the other party all of its costs and\nexpenses, including its reasonable attorneys’ fees.\nVIII. Prior Restrictive Covenant, Non-C ompetition, Non-Solicitation Agreements\nExcept as provided in Paragraph V (A ), this Agreement does not supercede and prior agreement(s) between Executive and\nFreddie Mac. To the extent that any prior agreement(s) between Executive and Freddie Mac contain provisions regarding\nany of the subject matters discussed herein, the provisions that are more restrictive of Executive prevail.\nExecutive has been advised to discuss all aspects of this Agreement with Executive’s private attorney. Executive\nacknowledges that Executive has carefully read and understands the terms and provisions of this Agreement and\nthat they are reasonable. Executive signs this Agreement voluntarily and accepts all obligations contained in this\nAgreement in exchange for the consideration to be given to Executive as outlined above, which Executive\nacknowledges is adequate and satisfactory, and which Executive further acknowledges Freddie Mac is not\notherwise obligated to provide to Executive. Neither Freddie Mac nor its agents, representatives, directors,\nofficers or employees have made any representations to\nExecutive concerning the terms or effects of this Agreement, other than those contained in this Agreement.\nBy: /s/ Donald]. Bisenius\n[name of employee]\nFreddie Mac\nBy: /s/ Paul T. Peterson	Exhibit 10.53\nRESTRICTIVE COVENANT AND CONFIDENTIALITY AGREEMENT\nIn exchange for the mutual promises and consideration set forth below, this Restrictive Covenant and Confidentiality\nA greement greement") is entered into by and between the Federal Home Loan Mortgage Corporation ("Freddie Mac"\nor "Company") and Donald J. Bisenius ("Executive"), effective as of this 11th day of March, 2001.\nI. Definitions\nThe following terms shall have the meanings indicated when used in this A greement.\nA. Competitor: The following entities, and their respective parents, successors, subsidiaries, and affiliates are\ncompetitors: (i) Fannie Mae (ii) all Federal Home Loan Banks (including the Office of Finance); and (iii) such other\nentities to which Executive and the Company may agree in writing from time-to-time.\nB. Confidential Information: Information or materials in written, oral, magnetic, digital, computer, photographic, optical,\nelectronic, or other form, whether now existing or developed or created during the period of Executive's employment\nwith Freddie Mac, that constitutes trade secrets and/or proprietary or confidential information. This information includes,\nbut is not limited to: (i) all information marked Proprietary or Confidential; (ii) information concerning the components,\ncapabilities, and attributes of Freddie Mac's business plans, methods, and strategies; (iii) information relating to tactics,\nplans, or strategies concerning shareholders, investors, pricing, investment, marketing, sales, trading, funding, hedging,\nmodeling, sales and risk management; (iv) financial or tax information and analyses, including but not limited to,\ninformation concerning Freddie Mac's capital structure and tax or financial planning; (v) confidential information about\nFreddie Mac's customers borrowers, employees, or others; (vi) pricing and quoting information, policies, procedures,\nand practices; (vii) confidential customer lists; (viii) proprietary algorithms; (ix) confidential contract terms;\n(x) confidential information concerning Freddie Mac's policies, procedures, and practices or the way in which Freddie\nMac does business; (xi) proprietary or confidential data bases including their structure and content; (xii) proprietary\nFreddie Mac business software, including its design, specifications and documentation; (xiii) information about Freddie\nMac products, programs, and services which has not yet been made public; (xiv) confidential information about Freddie\nMac's dealings with third parties, including dealers, customers, vendors, and regulators; and/or (xv) confidential\ninformation belonging to third parties to which Executive received access in connection with Executive's employment\nwith Freddie Mac. Confidential Information does not include general skills, experience, or knowledge acquired in\nconnection with Executive's employment with Freddie Mac that otherwise are generally known to the public or within\nthe industry or trade in which Freddie Mac operates.\nC. Severance: Cash compensation paid pursuant to Freddie Mac's Severance Policy.\n2\nD. Severance Policy: Freddie Mac Policy 3-254.1 (Severance Officers), or any subsequent and superceding severance\npolicy.\nII. Non-c ompetition\nExecutive recognizes that as a result of Executive's employment with Freddie Mac, Executive has access to and\nknowledge of critically sensitive Confidential Information, the improper disclosure or use of which would result in grave\ncompetitive harm to Freddie Mac. Therefore, Executive agrees that neither during Executive's employment with Freddie\nMac, nor for the twelve (12) months immediately following termination of Executive's employment for any reason, will\nExecutive consider offers of employment from, seek or accept employment with, or otherwise directly or indirectly\nprovide professional services to any Competitor. Executive acknowledges and agrees that this covenant has unique,\nsubstantial and immeasurable value to Freddie Mac, that Executive has sufficient assets and skills to provide a livelihood\nfor Executive while this covenant remains in force, and that this covenant will not interfere with Executive's ability to\nwork consistent with Executive's experience, training and education. This non-competition covenant applies regardless\nof whether Executive's employment is terminated by Executive, by Freddie Mac, or by a joint decision.\nIII. Non-Solicitation\nDuring Executive's employment with Freddie Mac and for a period of twelve (12) months after Executive's termination\ndate, Executive will not solicit attempt to solicit or assist another in soliciting any Freddie Mac manageria employee\n(including manager-level, Executive-level, or officer-level employee) with whom Executive worked, or any employee\nwhom Executive directly or indirectly supervised at Freddie Mac, to leave the employee's employment with Freddie Mac\nfor purposes of employment or for the rendering of professional services. This prohibition against solicitation does not\napply if Freddie Mac has notified the employee being solicited that his/her employment with the Company will be\nterminated pursuant to a corporate reorganization or reduction-in-force.\n3\nIV. Treatment of Confidential Information\nA. Non-Disclosure. Executive recognizes that Freddie Mac is engaged in an extremely competitive business and that, in\nthe course of performing Executive's job duties, Executive will have access to and gain knowledge about Confidential\nInformation. Executive further recognizes the importance of carefully protecting this Confidential Information in order\nfor Freddie Mac to compete successfully. Therefore, Executive agrees that Executive will neither divulge Confidential\nInformation to any persons, including to other Freddie Mac employees who do not have a Freddie Mac business-related\nneed to know, nor make use of the Confidential Information for the Executive's own benefit or for the benefit of anyone\nelse other than Freddie Mac. Executive further agrees to take all reasonable precautions to prevent the disclosure of\nConfidential Information to unauthorized persons or entities, and to comply with all Company policies, procedures, and\ninstructions regarding the treatment of such information.\nB. Return of Materials. Executive agrees that upon termination of Executive's employment with Freddie Mac for any\nreason whatsoever, Executive will deliver to Executive's immediate supervisor all tangible materials embodying\nConfidential Information, including, but not limited to, any documentation, records, listings, notes, files, data, sketches,\nmemoranda, models, accounts, reference materials, samples, machine-readable media, computer disks, tapes, and\nequipment which in any way relate to Confidential Information, whether developed by Executive or not. Executive\nfurther agrees not to retain any copies of any materials embodying Confidential Information.\nC. Post-Termination Obligations. Executive agrees that after the termination of Executive's employment for any reason,\nExecutive will not use in any way whatsoever, nor disclose any Confidential Information learned or obtained in\nconnection with Executive's employment with Freddie Mac without first obtaining the written permission of the Senior\nVice President of Human Resources of Freddie Mac. Executive further agrees that, in order to assure the continued\nconfidentiality\nof\nthe\nConfidential\nInformation,\nFreddie\nMac\nmay\ncorrespond\nwith\nExecutive's\nfuture\nemployers\nto\nadvise them generally of Executive's exposure to and knowledge of Confidential Information, and Executive's\nobligations and responsibilities regarding the Confidential Information. Executive understands and agrees that any such\ncontact may include a request for assurance and confirmation from such employer(s) that Executive will not disclose\nConfidential Information to such employer(s), nor will such employer(s) permit any use whatsoever of the Confidential\nInformation. To enable Freddie Mac to monitor compliance with the obligations imposed by this A greement Executive\nfurther agrees to inform in writing Freddie Mac's Senior Vice President of Human Resources of the identity of\nExecutive's subsequent employer(s) and Executive's prospective job title and responsibilities prior to beginning\nemployment. Executive agrees that this notice requirement shall remain in effect for twelve (12) months following the\ntermination of Executive's Freddie Mac employment.\n4\nV. Consideration iven to Executive\nIn exchange for agreeing to be employed by Freddie Mac on the terms, conditions, and restrictions stated in this\nAgreement, Freddie Mac will provide the Executive with the following consideration, each of which itself is adequate\nconsideration for Executive's agreement to be bound by the provisions of this A greement:\nA. Twelve-Month's Severance. Executive acknowledges that under Freddie Mac's Severance Policy, Executive may be\neligible to receive Severance upon termination of employment, the duration of which is within the discretion of Freddie\nMac. In exchange for Executive agreeing to be bound by this A greement, Freddie Mac agrees to provide Executive with\nSeverance pursuant to the Severance Policy for a period of twelve (12) months following termination, provided the\ncircumstances of the Executive's termination qualify for Severance under the Severance Policy. In the event that at the\ntime of termination, Executive occupies a position that is an "Executive Officer" of Freddie Mac as Freddie Mac\ninterprets that term to be defined in Section 1303(7) of the Federal Housing Enterprise Financial Safety and Soundness\nct of 1992 and related administrative guidance, then Executive acknowledges that receipt of the twelve (12) months\nseverance under this paragraph is contingent upon any legally required approval from the Office of Federal Housing\nEnterprise Oversight ("OFHEO"). If such approval is not received, then Executive will not be eligible for Severance. The\ntwelve (12)-month Severance guarantee provided by this Paragraph V(A) is in place of, and not in addition to, Severance\nto which Executive would otherwise be entitled under any other agreement between Executive and Freddie Mac.\nB. Long-Term Incentive Grant. In exchange for Executive agreeing to be bound by this A greement Freddie Mac further\nagrees to provide Executive with a long-term incentive grant as approved by the Human Resources Committee of the\nFreddie Mac Board of Directors on March 2, 2001. Executive's failure to execute and return this greement to Freddie\nMac on or before March 30, 2001, will result in Executive's ineligibility for such long-term incentive grant otherwise\nprovided pursuant to this Paragraph (B)\nVI. Reservation of Rights\nExecutive agrees that nothing in this A greement constitutes a contract or commitment by Freddie Mac to continue\nExecutive's employment in any job position for any period of time, nor does anything in this A greement limit in any way\nFreddie Mac's right to terminate Executive's employment at any time for any reason.\nVII. Enforcement\nA. Executive acknowledges that Executive may be subject to discipline up to and including termination of employment,\nfor Executive's breach or threat of breach of any provision of this A greement.\n5\nB. Executive agrees that irreparable injury will result to Freddie Mac's business interests in the event of breach or\nthreatened breach of this A greement, the full extent of Freddie Mac's damages will be impossible to ascertain, and\nmonetary damages will not be an adequate remedy for Freddie Mac. Therefore, Executive agrees that in the event of a\nbreach or threat of breach of any provision(s) of this greement, Freddie Mac, in addition to any other relief available,\nshall be entitled to temporary, preliminary, and permanent equitable relief to restrain any such breach or threat of breach\nby Executive and all persons acting for and/or in concert with Executive, without the necessity of posting bond or\nsecurity, which Executive expressly waives.\nC. Executive agrees that each of Executive's obligations specified in this A greement is a separate and independent\ncovenant, and that all of Executive's obligations set forth herein shall survive any termination, for any reason, of\nExecutive's Freddie Mac employment. To the extent that any provision of this A greement is determined by a court of\ncompetent jurisdiction to be unenforceable because it is overbroad, that provision shall be limited and enforced to the\nextent permitted by applicable law. Should any provision of this A greement be declared or determined by any court of\ncompetent jurisdiction to be unenforceable or invalid under applicable law, the validity of the remaining obligations will\nnot be affected thereby and only the unenforceable or invalid obligation will be deemed not to be a part of this\nAgreement.\nD. This greement is governed by, and will be construed in accordance with, the laws of the Commonwealth of\nVirginia without regard to its or any other jurisdiction's conflict-of-law provisions Executive agrees that any action\nrelated to or arising out of this A greement shall be brought exclusively in the United States District Court for the Eastern\nDistrict of Virginia, and Executive hereby irrevocably consents to personal jurisdiction and venue in such court and to\nservice of process by United States Mail or express courier service in any such action.\nE. If any dispute(s) arise(s) between Freddie Mac and Executive with respect to any matter which is the subject of this\nA greement, the prevailing party in such dispute(s) shall be entitled to recover from the other party all of its costs and\nexpenses, including its reasonable attorneys' fees.\nVIII. Prior Restrictive ovenant, Non-C Competition Non-Solicitation Agreements\nExcept as provided in Paragraph V(A), this greement does not supercede and prior agreement(s) between Executive and\nFreddie Mac. To the extent that any prior agreement(s) between Executive and Freddie Mac contain provisions regarding\nany of the subject matters discussed herein, the provisions that are more restrictive of Executive prevail.\nExecutive has been advised to discuss all aspects of this Agreement with Executive's private attorney. Executive\nacknowledges that Executive has carefully read and understands the terms and provisions of this Agreement and\nthat they are reasonable. Executive signs this Agreement voluntarily and accepts all obligations contained in this\nAgreement in exchange for the consideration to be given to Executive as outlined above, which Executive\nacknowledges is adequate and satisfactory, and which Executive further acknowledges Freddie Mac is not\notherwise obligated to provide to Executive. Neither Freddie Mac nor its agents, representatives, directors,\nofficers or employees have made any representations to\n6\nExecutive concerning the terms or effects of this Agreement, other than those contained in this Agreement.\nBy: /s/ Donald J. Bisenius\n[name of employee]\nFreddie Mac\nBy: /s/ Paul T. Peterson	Exhibit 10.53\nRESTRICTIVE COVENANT AND CONFIDENTIALITY AGREEMENT\nIn exchange for the mutual promises and consideration set forth below, this Restrictive Covenant and Confidentiality\nAgreement (“Agreement”) is entered into by and between the Federal Home Loan Mortgage Corporation (“Freddie Mac”\nor “Company”) and Donald J. Bisenius (“Executive”), effective as of this 11th day of March, 2001.\nI. Definitions\nThe following terms shall have the meanings indicated when used in this Agreement.\nA. Competitor: The following entities, and their respective parents, successors, subsidiaries, and affiliates are\ncompetitors: (i) Fannie Mae (ii) all Federal Home Loan Banks (including the Office of Finance); and (iii) such other\nentities to which Executive and the Company may agree in writing from time-to-time.\nB. Confidential Information: Information or materials in written, oral, magnetic, digital, computer, photographic, optical,\nelectronic, or other form, whether now existing or developed or created during the period of Executive’s employment\nwith Freddie Mac, that constitutes trade secrets and/or proprietary or confidential information. This information includes,\nbut is not limited to: (i) all information marked Proprietary or Confidential; (ii) information concerning the components,\ncapabilities, and attributes of Freddie Mac’s business plans, methods, and strategies; (iii) information relating to tactics,\nplans, or strategies concerning shareholders, investors, pricing, investment, marketing, sales, trading, funding, hedging,\nmodeling, sales and risk management; (iv) financial or tax information and analyses, including but not limited to,\ninformation concerning Freddie Mac’s capital structure and tax or financial planning; (v) confidential information about\nFreddie Mac’s customers, borrowers, employees, or others; (vi) pricing and quoting information, policies, procedures,\nand practices; (vii) confidential customer lists; (viii) proprietary algorithms; (ix) confidential contract terms;\n(x) confidential information concerning Freddie Mac’s policies, procedures, and practices or the way in which Freddie\nMac does business; (xi) proprietary or confidential data bases, including their structure and content; (xii) proprietary\nFreddie Mac business software, including its design, specifications and documentation; (xiii) information about Freddie\nMac products, programs, and services which has not yet been made public; (xiv) confidential information about Freddie\nMac’s dealings with third parties, including dealers, customers, vendors, and regulators; and/or (xv) confidential\ninformation belonging to third parties to which Executive received access in connection with Executive’s employment\nwith Freddie Mac. Confidential Information does not include general skills, experience, or knowledge acquired in\nconnection with Executive’s employment with Freddie Mac that otherwise are generally known to the public or within\nthe industry or trade in which Freddie Mac operates.\nC. Severance: Cash compensation paid pursuant to Freddie Mac’s Severance Policy.\n2\nD. Severance Policy: Freddie Mac Policy 3-254 .1 (Severance — Officers), or any subsequent and superceding severance\npolicy.\nII. Non-Competition\nExecutive recognizes that as a result of Executive’s employment with Freddie Mac, Executive has access to and\nknowledge of critically sensitive Confidential Information, the improper disclosure or use of which would result in grave\ncompetitive harm to Freddie Mac. Therefore, Executive agrees that neither during Executive’s employment with Freddie\nMac, nor for the twelve (12) months immediately following termination of Executive’s employment for any reason, will\nExecutive consider offers of employment from, seek or accept employment with, or otherwise directly or indirectly\nprovide professional services to any Competitor. Executive acknowledges and agrees that this covenant has unique,\nsubstantial and immeasurable value to Freddie Mac, that Executive has sufficient assets and skills to provide a livelihood\nfor Executive while this covenant remains in force, and that this covenant will not interfere with Executive’s ability to\nwork consistent with Executive’s experience, training and education. This non-competition covenant applies regardless\nof whether Executive’s employment is terminated by Executive, by Freddie Mac, or by a joint decision.\nIII. Non-Solicitation\nDuring Executive’s employment with Freddie Mac and for a period of twelve (12) months after Executive’s termination\ndate, Executive will not solicit, attempt to solicit or assist another in soliciting any Freddie Mac managerial employee\n(including manager-level, Executive-level, or officer-level employee) with whom Executive worked, or any employee\nwhom Executive directly or indirectly supervised at Freddie Mac, to leave the employee’s employment with Freddie Mac\nfor purposes of employment or for the rendering of professional services. This prohibition against solicitation does not\napply if Freddie Mac has notified the employee being solicited that his/her employment with the Company will be\nterminated pursuant to a corporate reorganization or reduction-in-force.\n3\nIV. Treatment of Confidential Information\nA. Non-Disclosure. Executive recognizes that Freddie Mac is engaged in an extremely competitive business and that, in\nthe course of performing Executive’s job duties, Executive will have access to and gain knowledge about Confidential\nInformation. Executive further recognizes the importance of carefully protecting this Confidential Information in order\nfor Freddie Mac to compete successfully. Therefore, Executive agrees that Executive will neither divulge Confidential\nInformation to any persons, including to other Freddie Mac employees who do not have a Freddie Mac business-related\nneed to know, nor make use of the Confidential Information for the Executive’s own benefit or for the benefit of anyone\nelse other than Freddie Mac. Executive further agrees to take all reasonable precautions to prevent the disclosure of\nConfidential Information to unauthorized persons or entities, and to comply with all Company policies, procedures, and\ninstructions regarding the treatment of such information.\nB. Return of Materials. Executive agrees that upon termination of Executive’s employment with Freddie Mac for any\nreason whatsoever, Executive will deliver to Executive’s immediate supervisor all tangible materials embodying\nConfidential Information, including, but not limited to, any documentation, records, listings, notes, files, data, sketches,\nmemoranda, models, accounts, reference materials, samples, machine-readable media, computer disks, tapes, and\nequipment which in any way relate to Confidential Information, whether developed by Executive or not. Executive\nfurther agrees not to retain any copies of any materials embodying Confidential Information.\nC. Post-Termination Obligations. Executive agrees that after the termination of Executive’s employment for any reason,\nExecutive will not use in any way whatsoever, nor disclose any Confidential Information learned or obtained in\nconnection with Executive’s employment with Freddie Mac without first obtaining the written permission of the Senior\nVice President of Human Resources of Freddie Mac. Executive further agrees that, in order to assure the continued\nconfidentiality of the Confidential Information, Freddie Mac may correspond with Executive’s future employers to\nadvise them generally of Executive’s exposure to and knowledge of Confidential Information, and Executive’s\nobligations and responsibilities regarding the Confidential Information. Executive understands and agrees that any such\ncontact may include a request for assurance and confirmation from such employer(s) that Executive will not disclose\nConfidential Information to such employer(s), nor will such employer(s) permit any use whatsoever of the Confidential\nInformation. To enable Freddie Mac to monitor compliance with the obligations imposed by this Agreement, Executive\nfurther agrees to inform in writing Freddie Mac’s Senior Vice President of Human Resources of the identity of\nExecutive’s subsequent employer(s) and Executive’s prospective job title and responsibilities prior to beginning\nemployment. Executive agrees that this notice requirement shall remain in effect for twelve (12) months following the\ntermination of Executive’s Freddie Mac employment.\n4\nV. Consideration Given to Executive\nIn exchange for agreeing to be employed by Freddie Mac on the terms, conditions, and restrictions stated in this\nAgreement, Freddie Mac will provide the Executive with the following consideration, each of which itself is adequate\nconsideration for Executive’s agreement to be bound by the provisions of this Agreement:\nA. Twelve-Month’s Severance. Executive acknowledges that under Freddie Mac’s Severance Policy, Executive may be\neligible to receive Severance upon termination of employment, the duration of which is within the discretion of Freddie\nMac. In exchange for Executive agreeing to be bound by this Agreement, Freddie Mac agrees to provide Executive with\nSeverance pursuant to the Severance Policy for a period of twelve (12) months following termination, provided the\ncircumstances of the Executive’s termination qualify for Severance under the Severance Policy. In the event that at the\ntime of termination, Executive occupies a position that is an “Executive Officer” of Freddie Mac as Freddie Mac\ninterprets that term to be defined in Section 1303(7) of the Federal Housing Enterprise Financial Safety and Soundness\nAct of 1992 and related administrative guidance, then Executive acknowledges that receipt of the twelve (12) months\nseverance under this paragraph is contingent upon any legally required approval from the Office of Federal Housing\nEnterprise Oversight (“OFHEO”). If such approval is not received, then Executive will not be eligible for Severance. The\ntwelve (12)-month Severance guarantee provided by this Paragraph V(A) is in place of, and not in addition to, Severance\nto which Executive would otherwise be entitled under any other agreement between Executive and Freddie Mac.\nB. Long-Term Incentive Grant. In exchange for Executive agreeing to be bound by this Agreement, Freddie Mac further\nagrees to provide Executive with a long-term incentive grant as approved by the Human Resources Committee of the\nFreddie Mac Board of Directors on March 2, 2001. Executive’s failure to execute and return this Agreement to Freddie\nMac on or before March 30, 2001, will result in Executive’s ineligibility for such long-term incentive grant otherwise\nprovided pursuant to this Paragraph V(B).\nVI. Reservation of Rights\nExecutive agrees that nothing in this Agreement constitutes a contract or commitment by Freddie Mac to continue\nExecutive’s employment in any job position for any period of time, nor does anything in this Agreement limit in any way\nFreddie Mac’s right to terminate Executive’s employment at any time for any reason.\nVII. Enforcement\nA. Executive acknowledges that Executive may be subject to discipline, up to and including termination of employment,\nfor Executive’s breach or threat of breach of any provision of this Agreement.\n5\nB. Executive agrees that irreparable injury will result to Freddie Mac’s business interests in the event of breach or\nthreatened breach of this Agreement, the full extent of Freddie Mac’s damages will be impossible to ascertain, and\nmonetary damages will not be an adequate remedy for Freddie Mac. Therefore, Executive agrees that in the event of a\nbreach or threat of breach of any provision(s) of this Agreement, Freddie Mac, in addition to any other relief available,\nshall be entitled to temporary, preliminary, and permanent equitable relief to restrain any such breach or threat of breach\nby Executive and all persons acting for and/or in concert with Executive, without the necessity of posting bond or\nsecurity, which Executive expressly waives.\nC. Executive agrees that each of Executive’s obligations specified in this Agreement is a separate and independent\ncovenant, and that all of Executive’s obligations set forth herein shall survive any termination, for any reason, of\nExecutive’s Freddie Mac employment. To the extent that any provision of this Agreement is determined by a court of\ncompetent jurisdiction to be unenforceable because it is overbroad, that provision shall be limited and enforced to the\nextent permitted by applicable law. Should any provision of this Agreement be declared or determined by any court of\ncompetent jurisdiction to be unenforceable or invalid under applicable law, the validity of the remaining obligations will\nnot be affected thereby and only the unenforceable or invalid obligation will be deemed not to be a part of this\nAgreement.\nD. This Agreement is governed by, and will be construed in accordance with, the laws of the Commonwealth of\nVirginia, without regard to its or any other jurisdiction’s conflict-of-law provisions. Executive agrees that any action\nrelated to or arising out of this Agreement shall be brought exclusively in the United States District Court for the Eastern\nDistrict of Virginia, and Executive hereby irrevocably consents to personal jurisdiction and venue in such court and to\nservice of process by United States Mail or express courier service in any such action.\nE. If any dispute(s) arise(s) between Freddie Mac and Executive with respect to any matter which is the subject of this\nAgreement, the prevailing party in such dispute(s) shall be entitled to recover from the other party all of its costs and\nexpenses, including its reasonable attorneys’ fees.\nVIII. Prior Restrictive Covenant, Non-Competition, Non-Solicitation Agreements\nExcept as provided in Paragraph V(A), this Agreement does not supercede and prior agreement(s) between Executive and\nFreddie Mac. To the extent that any prior agreement(s) between Executive and Freddie Mac contain provisions regarding\nany of the subject matters discussed herein, the provisions that are more restrictive of Executive prevail.\nExecutive has been advised to discuss all aspects of this Agreement with Executive’s private attorney. Executive\nacknowledges that Executive has carefully read and understands the terms and provisions of this Agreement and\nthat they are reasonable. Executive signs this Agreement voluntarily and accepts all obligations contained in this\nAgreement in exchange for the consideration to be given to Executive as outlined above, which Executive\nacknowledges is adequate and satisfactory, and which Executive further acknowledges Freddie Mac is not\notherwise obligated to provide to Executive. Neither Freddie Mac nor its agents, representatives, directors,\nofficers or employees have made any representations to\n6\nExecutive concerning the terms or effects of this Agreement, other than those contained in this Agreement.\nBy: /s/ Donald J. Bisenius\n[name of employee]\nFreddie Mac\nBy: /s/ Paul T. Peterson
f802c577eba7b20817ce7db62eff1f8a.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 7 d426098dex99d3.htm EXHIBIT (D)(3)\nExhibit (d)(3)\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a\nDelaware corporation (“Seller”), and Eli Lilly and Company, an Indiana corporation (“Buyer” and with Seller referred to collectively as the “Parties”\nand individually as a “Party”).\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer’s acquisition of all of the equity\ninterests in Seller (a “Transaction”), each Party has either requested or may request access to certain non-public information regarding the other Party\nand the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each\nParty, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’\nobligations regarding the use and disclosure of such information and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient’s Representatives (as\ndefined in Section 13 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a Transaction between the Parties; or\n(b) subject to Section 4 below, disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 13\nbelow).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct\non the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nreasonable actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential\nInformation.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential\nInformation must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the “Provider Contact Person”).\nNeither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the Provider\nin connection with a Transaction without the prior written authorization of the Provider Contact Person.\n3. No Representations by Provider. Neither the Provider nor any of the Provider’s Representatives will be under any obligation to make any\nparticular Confidential Information of the Provider available to the Recipient or any of the Recipient’s Representatives or to supplement or update any\nConfidential Information of the Provider previously furnished.\nNeither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or\ncompleteness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the\nRecipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United States federal or state\nsecurities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors therein\nor omissions therefrom. Only those representations and warranties that are included in any final definitive written agreement that provides for the\nconsummation of a Transaction between the Parties (a “Definitive Agreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to\nthe Recipient’s disclosure thereof;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the\nRecipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate\nor negotiate a Transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the\nprovisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process or stock exchange rule.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed\nonly to specified Representatives of the Recipient (such notice, a “Permitted Representatives Notice”), then, notwithstanding anything to the contrary\ncontained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any\nother Representative of the Recipient (any such other Representative, an “Impermissible Representative”). For clarity, if the Recipient disclosed, or\npermitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient’s receipt of the\nPermitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.\n(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid\nlegal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with\nwritten notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient\nand its Representatives will\n-2-\ncooperate with the Provider and the Provider’s Representatives (at the Provider’s sole expense) in any attempt by the Provider to obtain any such\nprotective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in\nconnection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such\nConfidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to\nensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.\n5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver to\nthe Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s\nRepresentatives; provided, however, that, in lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such\nConfidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required to\nreturn or destroy copies of Confidential Information created pursuant to Recipient’s automatic archiving and back-up procedures. Notwithstanding the\ndelivery to the Provider, the destruction by the Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant\nto this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement with respect to such Confidential Information.\n6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, each Party agrees that neither\nit nor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for\nemployment any employee of the other Party (or any of such other Party’s direct or indirect subsidiaries) with whom it (or any of its direct or indirect\nsubsidiaries) came into contact in connection with a possible Transaction; provided, however, that this Section 6 will not prevent either Party or its\ndirect or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or\nengaging search firms, provided that that such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.\n7. Standstill Provision. During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Buyer nor any\nof Buyer’s subsidiaries or other Representatives on behalf of Buyer will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Seller or any securities of\nany subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer,\nmerger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of\nSeller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or (iv) any “solicitation” of “proxies” (as\nthose terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any\nsubsidiary of Seller;\n-3-\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or any\nsubsidiary of Seller;\n(d) take any action that might require Seller to make a public announcement regarding any of the types of matters set forth in clause (a) of\nthis Section 7;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of\nthis Section 7;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this Section 7;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Seller or any of Seller’s Representatives amend, waive or consider the amendment or waiver of any provision\nset forth in this Section 7;\nprovided that Buyer shall not be prohibited from making or discussing any offers in a confidential, non-public manner that does not violate sub-clause\n(d) above regarding the Transaction directly to or with the management or the Board of Directors of Seller, or their designated Representatives\n(provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).\nThe standstill provisions of this Section 7 shall not apply to the Parties’ entry into or consummation of the transactions contemplated by a\nDefinitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision,\n(1) any third party unrelated to Buyer has made any public announcement of its intent to commence a tender offer or exchange offer for more than 50%\nof the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions\n(whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated,\nwould result in a sale of more than 50% of the capital stock of Seller or a sale of all or substantially all of the assets of Seller, or (iii) any third party\nunrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the\nelection of, or enters into an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of\nDirectors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The standstill provisions of this\nSection 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in\nSection 7(a) above; provided, however, that the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period\nwill not terminate or otherwise affect any of the other provisions of this letter agreement.\n-4-\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any\nsuch agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any legally binding written agreement\nbetween the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and\nto enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party\nor any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof\nor the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by\nmeans of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or\nprovisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party\nor by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party\nwill also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this\nAgreement by the other Party or any of the other Party’s Representatives (without the need for posting a bond or providing other security). The\nequitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to\nall other remedies available at law or in equity to the Parties.\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with\nthe laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents\nand submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out\nof or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding\narising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (c) irrevocably and unconditionally\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or\nrelating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.\n12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n-5-\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or\nprojection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been\nmade available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon\nany information of the type referred to in clause (a) of this Section 12;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been\nmade available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the proposed\nterms of any such transaction.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the\nRecipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information was\nnot and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other\nPerson with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential Information\nand without reference to or use of Confidential Information.\n13. Miscellaneous.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary\nor other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of\nany of such Party’s subsidiaries or other affiliates.\n-6-\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity\nor enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation\nor in any other jurisdiction.\n(d) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is\nnot, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret,\ncopyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any patent\napplication containing any claim to any subject matter derived from the Confidential Information of the Provider.\n(e) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, (i) Provider, or the applicable direct or indirect subsidiary of Provider, is not\nwaiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or\ndoctrines as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and\n(ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit,\nproceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials\nand other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the\ncontinued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable\nprivilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine\nor other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense\ndoctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or\ndoctrines.\n(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(g) This Agreement will terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any\ntime upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the\n-7-\nobligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of\nthree years from the effective date of this Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive\nindefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under Section 7 of this\nAgreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and\neffect and survive any termination of this Agreement.\n(h) The Recipient agrees not to export, directly or indirectly, any U.S . source technical data acquired from the Provider or any products\nutilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.\n(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto,\nincluding legal notices, shall be in the English language only.\n[Signature Page Next]\n-8-\nARMO BIOSCIENCES, INC.\nELI LILLY AND COMPANY\nBy: /s/ Peter Van Vlasselaer\nBy: /s/ Timothy C. Dolan\nTitle: CEO\nTitle: V.P., Business Development\nAddress: 575 Chesapeake Dr.\nAddress: Lilly Corporate Center\nRedwood City, CA 94063\nIndianapolis, IN	EX-99.(D)(3) 7 d426098dex99d3.htm EXHIBIT (D)(3)\nExhibit (d)(3)\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a\nDelaware corporation (“Seller”), and Eli Lilly and Company, an Indiana corporation (“Buyer” and with Seller referred to collectively as the “Parties”\nand individually as a “Party”).\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer’s acquisition of all of the equity\ninterests in Seller (a “Transaction”), each Party has either requested or may request access to certain non-public information regarding the other Party\nand the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each\nParty, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’\nobligations regarding the use and disclosure of such information and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient’s Representatives (as\ndefined in Section 13 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a Transaction between the Parties; or\n(b) subject to Section 4 below, disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 13\nbelow).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct\non the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nreasonable actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential\nInformation.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential\nInformation must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the “Provider Contact Person”).\nNeither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the Provider\nin connection with a Transaction without the prior written authorization of the Provider Contact Person.\n3. No Representations by Provider. Neither the Provider nor any of the Provider’s Representatives will be under any obligation to make any\nparticular Confidential Information of the Provider available to the Recipient or any of the Recipient’s Representatives or to supplement or update any\nConfidential Information of the Provider previously furnished.\nNeither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or\ncompleteness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the\nRecipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United States federal or state\nsecurities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors therein\nor omissions therefrom. Only those representations and warranties that are included in any final definitive written agreement that provides for the\nconsummation of a Transaction between the Parties (a “Definitive Agreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to\nthe Recipient’s disclosure thereof;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the\nRecipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate\nor negotiate a Transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the\nprovisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process or stock exchange rule.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed\nonly to specified Representatives of the Recipient (such notice, a “Permitted Representatives Notice”), then, notwithstanding anything to the contrary\ncontained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any\nother Representative of the Recipient (any such other Representative, an “Impermissible Representative”). For clarity, if the Recipient disclosed, or\npermitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient’s receipt of the\nPermitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.\n(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid\nlegal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with\nwritten notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient\nand its Representatives will\n-\ncooperate with the Provider and the Provider’s Representatives (at the Provider’s sole expense) in any attempt by the Provider to obtain any such\nprotective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in\nconnection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such\nConfidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to\nensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.\n5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver to\nthe Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s\nRepresentatives; provided, however, that, in lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such\nConfidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required to\nreturn or destroy copies of Confidential Information created pursuant to Recipient’s automatic archiving and back-up procedures. Notwithstanding the\ndelivery to the Provider, the destruction by the Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant\nto this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement with respect to such Confidential Information.\n6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, each Party agrees that neither\nit nor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for\nemployment any employee of the other Party (or any of such other Party’s direct or indirect subsidiaries) with whom it (or any of its direct or indirect\nsubsidiaries) came into contact in connection with a possible Transaction; provided, however, that this Section 6 will not prevent either Party or its\ndirect or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or\nengaging search firms, provided that that such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.\n7. Standstill Provision. During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Buyer nor any\nof Buyer’s subsidiaries or other Representatives on behalf of Buyer will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Seller or any securities of\nany subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer,\nmerger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of\nSeller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or (iv) any “solicitation” of “proxies” (as\nthose terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any\nsubsidiary of Seller;\n3-\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or any\nsubsidiary of Seller;\n(d) take any action that might require Seller to make a public announcement regarding any of the types of matters set forth in clause (a) of\nthis Section 7;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of\nthis Section 7;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this Section 7;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Seller or any of Seller’s Representatives amend, waive or consider the amendment or waiver of any provision\nset forth in this Section 7;\nprovided that Buyer shall not be prohibited from making or discussing any offers in a confidential, non-public manner that does not violate sub-clause\n(d) above regarding the Transaction directly to or with the management or the Board of Directors of Seller, or their designated Representatives\n(provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).\nThe standstill provisions of this Section 7 shall not apply to the Parties’ entry into or consummation of the transactions contemplated by a\nDefinitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision,\n(1) any third party unrelated to Buyer has made any public announcement of its intent to commence a tender offer or exchange offer for more than 50%\nof the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions\n(whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated,\nwould result in a sale of more than 50% of the capital stock of Seller or a sale of all or substantially all of the assets of Seller, or (iii) any third party\nunrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the\nelection of, or enters into an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of\nDirectors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The standstill provisions of this\nSection 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in\nSection 7(a) above; provided, however, that the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period\nwill not terminate or otherwise affect any of the other provisions of this letter agreement.\n4-\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any\nsuch agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any legally binding written agreement\nbetween the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and\nto enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party\nor any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof\nor the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by\nmeans of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or\nprovisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party\nor by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party\nwill also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this\nAgreement by the other Party or any of the other Party’s Representatives (without the need for posting a bond or providing other security). The\nequitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to\nall other remedies available at law or in equity to the Parties.\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with\nthe laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents\nand submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out\nof or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding\narising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (c) irrevocably and unconditionally\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or\nrelating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.\n12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or\nprojection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been\nmade available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon\nany information of the type referred to in clause (a) of this Section 12;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been\nmade available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the proposed\nterms of any such transaction.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the\nRecipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information was\nnot and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other\nPerson with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential Information\nand without reference to or use of Confidential Information.\n13. Miscellaneous.\na) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiar\npurp g y p y\nor other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of\nany of such Party’s subsidiaries or other affiliates.\n-6-\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity\nor enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation\nor in any other jurisdiction.\n(d) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is\nnot, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret,\ncopyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any patent\napplication containing any claim to any subject matter derived from the Confidential Information of the Provider.\n(e) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, (i) Provider, or the applicable direct or indirect subsidiary of Provider, is not\nwaiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or\ndoctrines as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and\n(ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit,\nproceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials\nand other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the\ncontinued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable\nprivilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine\nor other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense\ndoctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or\ndoctrines.\n(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(g) This Agreement will terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any\ntime upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the\n-7-\nobligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of\nthree years from the effective date of this Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive\nindefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under Section 7 of this\nAgreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and\neffect and survive any termination of this Agreement.\n(h) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any products\nutilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.\n(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto,\nincluding legal notices, shall be in the English language only.\n[Signature Page Next]\n8-\nARMO BIOSCIENCES, INC.\nBy:_/s/ Peter Van Vlasselaer Title: CEO\nAddress: 575 Chesapeake Dr. Redwood City, CA 94063\nELI LILLY AND COMPANY\nBy: /s/ Timothy C. Dolan\nTitle: V.P., Business Development Address: Lilly Corporate Center Indianapolis, IN	EX-99.(D)(3) 7 d426098dex99d3.htm EXHIBIT (D)(3)\nExhibit (d)(3)\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT ("Agreement") is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a\nDelaware corporation ("Seller"), and Eli Lilly and Company, an Indiana corporation ("Buyer" and with Seller referred to collectively as the "Parties"\nand individually as a "Party").\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer's acquisition of all of the equity\ninterests in Seller (a "Transaction"), each Party has either requested or may request access to certain non-public information regarding the other Party\nand the other Party's subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the "Provider"; and each\nParty, in its capacity as a recipient of information, is referred to in this Agreement as the "Recipient".) This Agreement sets forth the Parties'\nobligations regarding the use and disclosure of such information and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient's Representatives (as\ndefined in Section 13 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider's Confidential Information (as defined in Section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a Transaction between the Parties; or\n(b) subject to Section 4 below, disclose any of the Provider's Confidential Information to any other Person (as defined in Section 13\nbelow).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct\non the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nreasonable actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider's Confidentia\nInformation.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider's Confidential\nInformation must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the "Provider Contact Person").\nNeither the Recipient nor any of the Recipient's Representatives will contact or otherwise communicate with any other Representative of the Provider\nin connection with a Transaction without the prior written authorization of the Provider Contact Person.\n3. No Representations by Provider. Neither the Provider nor any of the Provider's Representatives will be under any obligation to make any\nparticular Confidential Information of the Provider available to the Recipient or any of the Recipient's Representatives or to supplement or update any\nConfidential Information of the Provider previously furnished.\nNeither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or\ncompleteness of any of the Provider's Confidential Information, and neither the Provider nor any of its Representatives will have any liability to\nthe\nRecipient or to any of the Recipient's Representatives on any basis (including, without limitation, in contract, tort or under United\nStates\nfederal\nor\nstate\nsecurities laws or otherwise) relating to or resulting from the use of any of the Provider's Confidential Information or any inaccuracies or errors therein\nor omissions therefrom. Only those representations and warranties that are included in any final definitive written agreement that provides for the\nconsummation of a Transaction between the Parties (a "Definitive Agreement") will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to\nthe Recipient's disclosure thereof;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the\nRecipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate\nor negotiate a Transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the\nprovisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process or stock exchange rule.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed\nonly to specified Representatives of the Recipient (such notice, a "Permitted Representatives Notice"), then, notwithstanding anything to the contrary\ncontained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any\nother Representative of the Recipient (any such other Representative, an "Impermissible Representative"). For clarity, if the Recipient disclosed, or\npermitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient's receipt of the\nPermitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.\n(c) If the Recipient or any of the Recipient's Representatives is required by law or governmental regulation or by subpoena or other valid\nlegal process to disclose any of the Provider's Confidential Information to any Person, then the Recipient will promptly provide the Provider with\nwritten notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient\nand its Representatives will\n-2-\ncooperate with the Provider and the Provider's Representatives (at the Provider's sole expense) in any attempt by the Provider to obtain any such\nprotective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy\nin\nconnection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such\nConfidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to\nensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.\n5. Return of Confidential Information. Upon the Provider's request, the Recipient and the Recipient's Representatives will promptly deliver to\nthe Provider any of the Provider's Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient's\nRepresentatives; provided, however, that, in lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such\nConfidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required\nto\nreturn or destroy copies of Confidential Information created pursuant to Recipient's automatic archiving and back-up procedures. Notwithstanding\nthe\ndelivery to the Provider, the destruction by the Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant\nto this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement with respect to such Confidential Information.\n6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, each Party agrees that neither\nit\nnor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for\nemployment any employee of the other Party (or any of such other Party's direct or indirect subsidiaries) with whom it (or any of its direct or indirect\nsubsidiaries) came into contact in connection with a possible Transaction; provided, however, that this Section 6 will not prevent either Party or its\ndirect or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or\nengaging search firms, provided that that such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.\n7.\nStandstill Provision. During the 12 month period commencing on the date of this Agreement (the "Standstill Period"), neither Buyer nor any\nof Buyer's subsidiaries or other Representatives on behalf of Buyer will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Seller or any securities of\nany subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer,\nmerger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of\nSeller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or (iv) any "solicitation" of "proxies" (as\nthose terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any\nsubsidiary of Seller;\n-3-\n(b) form, join or participate in a "group" (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or any\nsubsidiary of Seller;\n(d) take any action that might require Seller to make a public announcement regarding any of the types of matters set forth in clause (a) of\nthis Section 7;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of\nthis Section 7;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this Section 7;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Seller or any of Seller's Representatives amend, waive or consider the amendment or waiver of any provision\nset forth in this Section 7;\nprovided that Buyer shall not be prohibited from making or discussing any offers in a confidential, non-public manner that does not violate sub-clause\n(d) above regarding the Transaction directly to or with the management or the Board of Directors of Seller, or their designated Representatives\n(provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).\nThe standstill provisions of this Section 7 shall not apply to the Parties' entry into or consummation of the transactions contemplated by a\nDefinitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision,\n(1) any third party unrelated to Buyer has made any public announcement of its intent to commence a tender offer or exchange offer for more than\n50%\nof the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions\n(whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated,\nwould result in a sale of more than 50% of the capital stock of Seller or a sale of all or substantially all of the assets of Seller, or (iii) any third party\nunrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the\nelection of, or enters into an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of\nDirectors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The standstill provisions of this\nSection 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in\nSection 7(a) above; provided, however, that the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period\nwill not terminate or otherwise affect any of the other provisions of this letter agreement.\n-4-\n8.\nNo\nObligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany\nsuch\nagreement\nor\ntransaction\nwith\nthe\nother\nParty.\nEach\nParty\nrecognizes\nthat,\nexcept\nas\nexpressly\nprovided\nin\nany\nlegally\nbinding\nwritten\nagreement\nbetween the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and\nto enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party\nor any of the other Party's Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill\noperate\nas\na\nwaiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof\nor the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by\nmeans of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or\nprovisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party\nor by any of such Party's Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party\nwill also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this\nAgreement by the other Party or any of the other Party's Representatives (without the need for posting a bond or providing other security). The\nequitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition\nto\nall other remedies available at law or in equity to the Parties.\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with\nthe laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents\nand\nsubmits\nto the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out\nof or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding\narising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (c) irrevocably and unconditionally\nwaives\nthe right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of\nor\nrelating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.\n12. Confidential Information. For purposes of this Agreement, the Provider's "Confidential Information" will be deemed to include only the\nfollowing:\n-5-\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or\nprojection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been\nmade available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon\nany information of the type referred to in clause (a) of this Section 12;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been\nmade available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the proposed\nterms of any such transaction.\nHowever, the Provider's "Confidential Information" will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient's Representatives;\n(ii) any information that was in the Recipient's possession prior to the time it was first made available to the Recipient or any of the\nRecipient's Representatives by or on behalf of the Provider or any of the Provider's Representatives, provided that the source of such information was\nnot and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other\nPerson with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider's Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidentia Information\nand without reference to or use of Confidential Information.\n13. Miscellaneous.\n(a) For purposes of this Agreement, a Party's "Representatives" will be deemed to include each Person that is or becomes (i) a subsidiary\nor other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of\nany of such Party's subsidiaries or other affiliates.\n-6-\n(b) The term "Person," as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity\nor enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation\nor in any other jurisdiction.\n(d) By making Confidential Information or other information available to the Recipient or the Recipient's Representatives, the Provider is\nnot, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret,\ncopyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient's Representatives shall file any patent\napplication containing any claim to any subject matter derived from the Confidential Information of the Provider.\n(e) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective\naction, suit, proceeding, investigation, arbitration or dispute, (i) Provider, or the applicable direct or indirect subsidiary of Provider, is not\nwaiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or\ndoctrines as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and\n(ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit,\nproceeding, investigation, arbitration or dispute and that it is the Parties' mutual desire, intention and understanding that the sharing of such materials\nand other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish\nthe\ncontinued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable\nprivilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine\nor other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense\ndoctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or\ndoctrines.\n(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(g) This Agreement will terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any\ntime upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the\n-7-\nobligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of\nthree years from the effective date of this Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive\nindefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under Section 7 of this\nAgreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and\neffect and survive any termination of this Agreement.\n(h) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any products\nutilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.\n(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto,\nincluding legal notices, shall be in the English language only.\n[Signature Page Next]\n-8-\nARMO BIOSCIENCES, INC.\nELI LILLY AND COMPANY\nBy: /s/ Peter Van Vlasselaer\nBy: /s/ Timothy. C. Dolan\nTitle: CEO\nTitle: V.P., Business Development\nAddress: 575 Chesapeake Dr.\nAddress: Lilly Corporate Center\nRedwood City, CA 94063\nIndianapolis, IN	EX-99.(D)(3) 7 d426098dex99d3.htm EXHIBIT (D)(3)\nExhibit (d)(3)\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a\nDelaware corporation (“Seller”), and Eli Lilly and Company, an Indiana corporation (“Buyer” and with Seller referred to collectively as the “Parties”\nand individually as a “Party”).\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer’s acquisition of all of the equity\ninterests in Seller (a “Transaction”), each Party has either requested or may request access to certain non-public information regarding the other Party\nand the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each\nParty, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’\nobligations regarding the use and disclosure of such information and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient’s Representatives (as\ndefined in Section 13 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a Transaction between the Parties; or\n(b) subject to Section 4 below, disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 13\nbelow).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct\non the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nreasonable actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential\nInformation.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential\nInformation must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the “Provider Contact Person”).\nNeither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the Provider\nin connection with a Transaction without the prior written authorization of the Provider Contact Person.\n3. No Representations by Provider. Neither the Provider nor any of the Provider’s Representatives will be under any obligation to make any\nparticular Confidential Information of the Provider available to the Recipient or any of the Recipient’s Representatives or to supplement or update any\nConfidential Information of the Provider previously furnished.\nNeither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or\ncompleteness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the\nRecipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United States federal or state\nsecurities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors therein\nor omissions therefrom. Only those representations and warranties that are included in any final definitive written agreement that provides for the\nconsummation of a Transaction between the Parties (a “Definitive Agreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to\nthe Recipient’s disclosure thereof;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the\nRecipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate\nor negotiate a Transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the\nprovisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process or stock exchange rule.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed\nonly to specified Representatives of the Recipient (such notice, a “Permitted Representatives Notice”), then, notwithstanding anything to the contrary\ncontained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any\nother Representative of the Recipient (any such other Representative, an “Impermissible Representative”). For clarity, if the Recipient disclosed, or\npermitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient’s receipt of the\nPermitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.\n(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid\nlegal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with\nwritten notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient\nand its Representatives will\n-2-\ncooperate with the Provider and the Provider’s Representatives (at the Provider’s sole expense) in any attempt by the Provider to obtain any such\nprotective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in\nconnection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such\nConfidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to\nensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.\n5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver to\nthe Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s\nRepresentatives; provided, however, that, in lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such\nConfidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required to\nreturn or destroy copies of Confidential Information created pursuant to Recipient’s automatic archiving and back-up procedures. Notwithstanding the\ndelivery to the Provider, the destruction by the Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant\nto this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement with respect to such Confidential Information.\n6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, each Party agrees that neither\nit nor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for\nemployment any employee of the other Party (or any of such other Party’s direct or indirect subsidiaries) with whom it (or any of its direct or indirect\nsubsidiaries) came into contact in connection with a possible Transaction; provided, however, that this Section 6 will not prevent either Party or its\ndirect or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or\nengaging search firms, provided that that such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.\n7. Standstill Provision. During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Buyer nor any\nof Buyer’s subsidiaries or other Representatives on behalf of Buyer will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Seller or any securities of\nany subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer,\nmerger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of\nSeller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or (iv) any “solicitation” of “proxies” (as\nthose terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any\nsubsidiary of Seller;\n-3-\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or any\nsubsidiary of Seller;\n(d) take any action that might require Seller to make a public announcement regarding any of the types of matters set forth in clause (a) of\nthis Section 7;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of\nthis Section 7;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this Section 7;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Seller or any of Seller’s Representatives amend, waive or consider the amendment or waiver of any provision\nset forth in this Section 7;\nprovided that Buyer shall not be prohibited from making or discussing any offers in a confidential, non-public manner that does not violate sub-clause\n(d) above regarding the Transaction directly to or with the management or the Board of Directors of Seller, or their designated Representatives\n(provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).\nThe standstill provisions of this Section 7 shall not apply to the Parties’ entry into or consummation of the transactions contemplated by a\nDefinitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision,\n(1) any third party unrelated to Buyer has made any public announcement of its intent to commence a tender offer or exchange offer for more than 50%\nof the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions\n(whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated,\nwould result in a sale of more than 50% of the capital stock of Seller or a sale of all or substantially all of the assets of Seller, or (iii) any third party\nunrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the\nelection of, or enters into an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of\nDirectors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The standstill provisions of this\nSection 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in\nSection 7(a) above; provided, however, that the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period\nwill not terminate or otherwise affect any of the other provisions of this letter agreement.\n-4-\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any\nsuch agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any legally binding written agreement\nbetween the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and\nto enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party\nor any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof\nor the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by\nmeans of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or\nprovisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party\nor by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party\nwill also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this\nAgreement by the other Party or any of the other Party’s Representatives (without the need for posting a bond or providing other security). The\nequitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to\nall other remedies available at law or in equity to the Parties.\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with\nthe laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents\nand submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out\nof or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding\narising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (c) irrevocably and unconditionally\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or\nrelating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.\n12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n-5-\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or\nprojection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been\nmade available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon\nany information of the type referred to in clause (a) of this Section 12;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been\nmade available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the proposed\nterms of any such transaction.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the\nRecipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information was\nnot and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other\nPerson with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential Information\nand without reference to or use of Confidential Information.\n13. Miscellaneous.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary\nor other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of\nany of such Party’s subsidiaries or other affiliates.\n-6-\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity\nor enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation\nor in any other jurisdiction.\n(d) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is\nnot, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret,\ncopyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any patent\napplication containing any claim to any subject matter derived from the Confidential Information of the Provider.\n(e) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, (i) Provider, or the applicable direct or indirect subsidiary of Provider, is not\nwaiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or\ndoctrines as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and\n(ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit,\nproceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials\nand other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the\ncontinued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable\nprivilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine\nor other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense\ndoctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or\ndoctrines.\n(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(g) This Agreement will terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any\ntime upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the\n-7-\nobligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of\nthree years from the effective date of this Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive\nindefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under Section 7 of this\nAgreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and\neffect and survive any termination of this Agreement.\n(h) The Recipient agrees not to export, directly or indirectly, any U.S . source technical data acquired from the Provider or any products\nutilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.\n(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto,\nincluding legal notices, shall be in the English language only.\n[Signature Page Next]\n-8-\nARMO BIOSCIENCES, INC.\nELI LILLY AND COMPANY\nBy: /s/ Peter Van Vlasselaer\nBy: /s/ Timothy C. Dolan\nTitle: CEO\nTitle: V.P., Business Development\nAddress: 575 Chesapeake Dr.\nAddress: Lilly Corporate Center\nRedwood City, CA 94063\nIndianapolis, IN
f911471f4ef0f41fe53d32313bc28e00.pdf	effective_date jurisdiction party term	Exhibit “A”\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this “NDA”) dated as of November 1, 2010 is entered into by and between Yew Bio-Pharm Group, Inc.\n(“YBP” and, together with its wholly-owned subsidiaries, the “Company”) and Richard Lo (the “Recipient”), and sets forth the terms and conditions\non which the Company is willing to disclose certain material non-public information about the Company to the Consultant. All terms not defined\nherein shall have the meanings assigned to them in that certain Consultant Agreement dated of even date herewith (the “Agreement”).\n1. Purpose. The Recipient is being retained pursuant to the Agreement to provide certain Services during the Term. In connection therewith,\nthe Company will disclose to the Recipient certain confidential financial and other business information which the Company requires the Recipient\nto treat as confidential.\n2. “Confidential Information” means any information disclosed to the Recipient by the Company, either directly or indirectly in writing, orally\nor by inspection of tangible objects, including without limitation documents, prototypes, and historical and forecasted financial information.\nConfidential Information may also include information disclosed to the Company by third parties. Confidential Information shall not, however,\ninclude any information which The Recipient can establish by written documentation (i) was publicly known and made generally available in the\npublic domain prior to the time of disclosure to the Recipient by the Company; (ii) becomes publicly known and made generally available after\ndisclosure to the Recipient by the Company through no action or inaction of the Recipient; (iii) is in the possession of the Recipient, without\nconfidentiality restrictions, at the time of disclosure by the Company as shown by the Recipient’s files and records immediately prior to the time of\ndisclosure; (iv) is developed independently of the Confidential Information, as shown by written records prepared contemporaneously with such\nindependent development; or (v) is disclosed pursuant to the requirement of a government agency or judicial body having jurisdiction over the\nRecipient.\n3. Non-Use and Nondisclosure. The Recipient agrees not to use any Confidential Information for any purpose except to provide the Services\nunder the Agreement. The Recipient agrees not to disclose any Confidential Information to third parties or to employees or agents of the Recipient,\nexcept to those employees or agents who are required to have such information in order to assist the Recipient provide the Services under the\nAgreement. The Recipient agrees to cause each third party receiving any Confidential Information to enter into a separate non-disclosure agreement\nwith the Company prior to any disclosure by the Recipient of Confidential Information to such other persons.\n6\n4. Maintenance of Confidentiality. The Recipient agrees that it shall take all reasonable measures to protect the secrecy of and avoid disclosure\nand unauthorized use of the Confidential Information. Without limiting the foregoing, the Recipient shall take at least those measures that the\nRecipient takes to protect its own confidential information of a similar nature. The Recipient shall immediately notify the Company in the event of\nany unauthorized use or disclosure of the Confidential Information.\n5. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which are in the\npossession of the Recipient shall be and remain the property of the Company and shall be promptly returned to the Company upon request upon the\ntermination of the Agreement or at any other time.\n6. No License. Nothing in this NDA is intended to grant any rights to the Recipient under any patent, copyright or other proprietary rights of\nthe Company, nor shall this NDA grant the Recipient any rights in or to Confidential Information except as expressly set forth herein.\n7. Term. This NDA shall survive until such time as all Confidential Information disclosed hereunder becomes publicly known and made\ngenerally available through no action or inaction of the Recipient.\n8. Remedies. The Recipient agrees that any violation or threatened violation of this NDA will cause irreparable injury to the Company,\nentitling the Company to obtain injunctive relief in addition to all legal remedies.\n9. Miscellaneous. This NDA shall bind and inure to the benefit of the parties hereto and their successors and assigns. This NDA shall be\ngoverned by the laws of the State of Nevada, without reference to conflict of laws principles. This document contains the entire agreement between\nthe parties with respect to the subject matter hereof. Any failure to enforce any provision of this NDA shall not constitute a waiver thereof or of any\nother provision hereof. This NDA may not be amended, nor any obligation waived, except by a writing signed by both parties hereto.\nIN WITNESS WHEREOF, YBP and the Recipient have executed or caused their duly authorized officers to execute this NDA as of the date\nfirst above written.\nYEW BIO-PHARM GROUP, INC.\n(“YBP”)\nBy /s/ Zhi Guo Wang\nName: Zhi Guo Wang\nTitle: President\nRICHARD LO (“RECIPIENT”)\n/s/ Richard Lo\nRichard Lo\n7	Exhibit “A”\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this “NDA”) dated as of November 1, 2010 is entered into by and between Yew Bio-Pharm Group, Inc.\n(“YBP” and, together with its wholly-owned subsidiaries, the “Company”) and Richard Lo (the “Recipient”), and sets forth the terms and conditions\non which the Company is willing to disclose certain material non-public information about the Company to the Consultant. All terms not defined\nherein shall have the meanings assigned to them in that certain Consultant Agreement dated of even date herewith (the “Agreement”).\n1. Purpose. The Recipient is being retained pursuant to the Agreement to provide certain Services during the Term. In connection therewith,\nthe Company will disclose to the Recipient certain confidential financial and other business information which the Company requires the Recipient\nto treat as confidential.\n2. “Confidential Information” means any information disclosed to the Recipient by the Company, either directly or indirectly in writing, orally\nor by inspection of tangible objects, including without limitation documents, prototypes, and historical and forecasted financial information.\nConfidential Information may also include information disclosed to the Company by third parties. Confidential Information shall not, however,\ninclude any information which The Recipient can establish by written documentation (i) was publicly known and made generally available in the\npublic domain prior to the time of disclosure to the Recipient by the Company; (ii) becomes publicly known and made generally available after\ndisclosure to the Recipient by the Company through no action or inaction of the Recipient; (iii) is in the possession of the Recipient, without\nconfidentiality restrictions, at the time of disclosure by the Company as shown by the Recipient’s files and records immediately prior to the time of\ndisclosure; (iv) is developed independently of the Confidential Information, as shown by written records prepared contemporaneously with such\nindependent development; or (v) is disclosed pursuant to the requirement of a government agency or judicial body having jurisdiction over the\nRecipient.\n3. Non-Use and Nondisclosure. The Recipient agrees not to use any Confidential Information for any purpose except to provide the Services\nunder the Agreement. The Recipient agrees not to disclose any Confidential Information to third parties or to employees or agents of the Recipient,\nexcept to those employees or agents who are required to have such information in order to assist the Recipient provide the Services under the\nAgreement. The Recipient agrees to cause each third party receiving any Confidential Information to enter into a separate non-disclosure agreement\nwith the Company prior to any disclosure by the Recipient of Confidential Information to such other persons.\n6\n4. Maintenance of Confidentiality. The Recipient agrees that it shall take all reasonable measures to protect the secrecy of and avoid disclosure\nand unauthorized use of the Confidential Information. Without limiting the foregoing, the Recipient shall take at least those measures that the\nRecipient takes to protect its own confidential information of a similar nature. The Recipient shall immediately notify the Company in the event of\nany unauthorized use or disclosure of the Confidential Information.\n5. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which are in the\npossession of the Recipient shall be and remain the property of the Company and shall be promptly returned to the Company upon request upon the\ntermination of the Agreement or at any other time.\n6. No License. Nothing in this NDA is intended to grant any rights to the Recipient under any patent, copyright or other proprietary rights of\nthe Company, nor shall this NDA grant the Recipient any rights in or to Confidential Information except as expressly set forth herein.\n7. Term. This NDA shall survive until such time as all Confidential Information disclosed hereunder becomes publicly known and made\ngenerally available through no action or inaction of the Recipient.\n8. Remedies. The Recipient agrees that any violation or threatened violation of this NDA will cause irreparable injury to the Company,\nentitling the Company to obtain injunctive relief in addition to all legal remedies.\n9. Miscellaneous. This NDA shall bind and inure to the benefit of the parties hereto and their successors and assigns. This NDA shall be\ngoverned by the laws of the State of Nevada, without reference to conflict of laws principles. This document contains the entire agreement between\nthe parties with respect to the subject matter hereof. Any failure to enforce any provision of this NDA shall not constitute a waiver thereof or of any\nother provision hereof. This NDA may not be amended, nor any obligation waived, except by a writing signed by both parties hereto.\nIN WITNESS WHEREOF, YBP and the Recipient have executed or caused their duly authorized officers to execute this NDA as of the date\nfirst above written.\nYEW BIO-PHARM GROUP, INC.\n(“YBP”)\nBy /s/ Zhi Guo Wang\nName: Zhi Guo Wang\nTitle: President\nRICHARD LO (“RECIPIENT”)\n/s/ Richard Lo\nRichard Lo	Exhibit "A"\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this "NDA") dated as of November 1, 2010 is entered into by and between Yew Bio-Pharm Group, Inc.\n("YBP" and, together with its wholly-owned subsidiaries, the "Company") and Richard Lo (the "Recipient"), and sets forth the terms and conditions\non\nwhich the Company is willing to disclose certain material non-public information about the Company to the Consultant. All terms not defined\nherein shall have the meanings assigned to them in that certain Consultant Agreement dated of even date herewith (the "Agreement").\n1. Purpose. The Recipient is being retained pursuant to the Agreement to provide certain Services during the Term. In connection therewith,\nthe Company will disclose to the Recipient certain confidential financial and other business information which the Company requires the Recipient\nto treat as confidential.\n2. "Confidential Information" means any information disclosed to the Recipient by the Company, either directly or indirectly in writing, orally\nor by inspection of tangible objects, including without limitation documents, prototypes, and historical and forecasted financial information.\nConfidential Information may also include information disclosed to the Company by third parties. Confidential Information shall not, however,\ninclude any information which The Recipient can establish by written documentation (i) was publicly known and made generally available in the\npublic domain prior to the time of disclosure to the Recipient by the Company; (ii) becomes publicly known and made generally available after\ndisclosure to the Recipient by the Company through no action or inaction of the Recipient; (iii) is in the possession of the Recipient, without\nconfidentiality restrictions, at the time of disclosure by the Company as shown by the Recipient's files and records immediately prior to the time of\ndisclosure; (iv) is developed independently of the Confidential Information, as shown by written records prepared contemporaneously with such\nindependent development; or (v) is disclosed pursuant to the requirement of a government agency or judicial body having jurisdiction over the\nRecipient.\n3. Non-Use and Nondisclosure. The Recipient agrees not to use any Confidential Information for any purpose except to provide the Services\nunder the Agreement. The Recipient agrees not to disclose any Confidential Information to third parties or to employees or agents of the Recipient,\nexcept to those employees or agents who are required to have such information in order to assist the Recipient provide the Services under the\nAgreement. The Recipient agrees to cause each third party receiving any Confidential Information to enter into a separate non-disclosure agreement\nwith the Company prior to any disclosure by the Recipient of Confidential Information to such other persons.\n6\n4. Maintenance of Confidentiality.. The Recipient agrees that it shall take all reasonable measures to protect the secrecy of and avoid disclosure\nand unauthorized use of the Confidential Information. Without limiting the foregoing, the Recipient shall take at least those measures that the\nRecipient takes to protect its own confidential information of a similar nature. The Recipient shall immediately notify the Company in the event of\nany unauthorized use or disclosure of the Confidential Information.\n5. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which are in the\npossession of the Recipient shall be and remain the property of the Company and shall be promptly returned to the Company upon request upon the\ntermination of the Agreement or at any other time.\n6. No License. Nothing in this NDA is intended to grant any rights to the Recipient under any patent, copyright or other proprietary rights of\nthe Company, nor shall this NDA grant the Recipient any rights in or to Confidential Information except as expressly set forth herein.\n7. Term. This NDA shall survive until such time as all Confidential Information disclosed hereunder becomes publicly known and made\ngenerally available through no action or inaction of the Recipient.\n8. Remedies. The Recipient agrees that any violation or threatened violation of this NDA will cause irreparable injury to the Company,\nentitling the Company to obtain injunctive relief in addition to all legal remedies.\n9. Miscellaneous. This NDA shall bind and inure to the benefit of the parties hereto and their successors and assigns This NDA shall be\ngoverned by the laws of the State of Nevada, without reference to conflict of laws principles. This document contains the entire agreement between\nthe parties with respect to the subject matter hereof. Any failure to enforce any provision of this NDA shall not constitute a waiver thereof or of any\nother provision hereof. This NDA may not be amended, nor any obligation waived, except by a writing signed by both parties hereto.\nIN WITNESS WHEREOF, YBP and the Recipient have executed or caused their duly authorized officers to execute this NDA as of the date\nfirst above written.\nYEW BIO-PHARM GROUP, INC.\n("YBP")\nBy\n/s/ Zhi Guo Wang\nName: Zhi Guo Wang\nTitle: President\nRICHARD LO ("RECIPIENT")\n/s/ Richard Lo\nRichard Lo\n7	Exhibit “A”\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this “NDA”) dated as of November 1, 2010 is entered into by and between Yew Bio-Pharm Group, Inc.\n(“YBP” and, together with its wholly-owned subsidiaries, the “Company”) and Richard Lo (the “Recipient”), and sets forth the terms and conditions\non which the Company is willing to disclose certain material non-public information about the Company to the Consultant. All terms not defined\nherein shall have the meanings assigned to them in that certain Consultant Agreement dated of even date herewith (the “Agreement”).\n1. Purpose. The Recipient is being retained pursuant to the Agreement to provide certain Services during the Term. In connection therewith,\nthe Company will disclose to the Recipient certain confidential financial and other business information which the Company requires the Recipient\nto treat as confidential.\n2. “Confidential Information” means any information disclosed to the Recipient by the Company, either directly or indirectly in writing, orally\nor by inspection of tangible objects, including without limitation documents, prototypes, and historical and forecasted financial information.\nConfidential Information may also include information disclosed to the Company by third parties. Confidential Information shall not, however,\ninclude any information which The Recipient can establish by written documentation (i) was publicly known and made generally available in the\npublic domain prior to the time of disclosure to the Recipient by the Company; (ii) becomes publicly known and made generally available after\ndisclosure to the Recipient by the Company through no action or inaction of the Recipient; (iii) is in the possession of the Recipient, without\nconfidentiality restrictions, at the time of disclosure by the Company as shown by the Recipient’s files and records immediately prior to the time of\ndisclosure; (iv) is developed independently of the Confidential Information, as shown by written records prepared contemporaneously with such\nindependent development; or (v) is disclosed pursuant to the requirement of a government agency or judicial body having jurisdiction over the\nRecipient.\n3. Non-Use and Nondisclosure. The Recipient agrees not to use any Confidential Information for any purpose except to provide the Services\nunder the Agreement. The Recipient agrees not to disclose any Confidential Information to third parties or to employees or agents of the Recipient,\nexcept to those employees or agents who are required to have such information in order to assist the Recipient provide the Services under the\nAgreement. The Recipient agrees to cause each third party receiving any Confidential Information to enter into a separate non-disclosure agreement\nwith the Company prior to any disclosure by the Recipient of Confidential Information to such other persons.\n6\n4. Maintenance of Confidentiality. The Recipient agrees that it shall take all reasonable measures to protect the secrecy of and avoid disclosure\nand unauthorized use of the Confidential Information. Without limiting the foregoing, the Recipient shall take at least those measures that the\nRecipient takes to protect its own confidential information of a similar nature. The Recipient shall immediately notify the Company in the event of\nany unauthorized use or disclosure of the Confidential Information.\n5. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which are in the\npossession of the Recipient shall be and remain the property of the Company and shall be promptly returned to the Company upon request upon the\ntermination of the Agreement or at any other time.\n6. No License. Nothing in this NDA is intended to grant any rights to the Recipient under any patent, copyright or other proprietary rights of\nthe Company, nor shall this NDA grant the Recipient any rights in or to Confidential Information except as expressly set forth herein.\n7. Term. This NDA shall survive until such time as all Confidential Information disclosed hereunder becomes publicly known and made\ngenerally available through no action or inaction of the Recipient.\n8. Remedies. The Recipient agrees that any violation or threatened violation of this NDA will cause irreparable injury to the Company,\nentitling the Company to obtain injunctive relief in addition to all legal remedies.\n9. Miscellaneous. This NDA shall bind and inure to the benefit of the parties hereto and their successors and assigns. This NDA shall be\ngoverned by the laws of the State of Nevada, without reference to conflict of laws principles. This document contains the entire agreement between\nthe parties with respect to the subject matter hereof. Any failure to enforce any provision of this NDA shall not constitute a waiver thereof or of any\nother provision hereof. This NDA may not be amended, nor any obligation waived, except by a writing signed by both parties hereto.\nIN WITNESS WHEREOF, YBP and the Recipient have executed or caused their duly authorized officers to execute this NDA as of the date\nfirst above written.\nYEW BIO-PHARM GROUP, INC.\n(“YBP”)\nBy /s/ Zhi Guo Wang\nName: Zhi Guo Wang\nTitle: President\nRICHARD LO (“RECIPIENT”)\n/s/ Richard Lo\nRichard Lo\n7
f94e22c9bf36ed2c9652a1a7a236e397.pdf	effective_date jurisdiction party	EXHIBIT D\nTO THE RENOVACARE, INC.— ROGER ESTEBAN-VIVES\nCONSULTING AGREEMENT\nDATED\nJUNE 4, 2019\n****\nConfidential information and\ninvention assignment agreement\nRENOVACARE, INC.\nCONFIDENTIAL INFORMATION AND\nINVENTION ASSIGNMENT AGREEMENT\nConfidential Information and Invention Assignment Agreement is dated as of June 4, 2019 by and between\nRenovaCare, Inc., a Nevada corporation (the “RCAR”), and Roger Esteban-Vives, an individual having his place of\nbusiness in London, England (“Consultant”).\nAs a condition of becoming retained (or Consultant’s consulting relationship being continued) by RCAR, or any of\nits current or future subsidiaries, affiliates, successors or assigns (collectively, the “Company”), and in consideration of\nConsultant’s consulting relationship with the Company and receipt of the compensation now and hereafter paid by the\nCompany, the receipt of Confidential Information (as defined below) while associated with the Company, and other good\nand valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Consultant hereby agrees to\nthe following:\n1.\nRelationship. This Confidential Information and Invention Assignment Agreement (this\n“Agreement”) will apply to Consultant’s consulting relationship with the Company. If that relationship ends and the\nCompany, within one (1) year thereafter, either employs Consultant or re-engages Consultant as a consultant, this\nAgreement will also apply to such later employment or consulting relationship, unless the parties hereto otherwise agree\nin writing. Any employment or consulting relationship between the parties hereto, whether commenced prior to, upon or\nafter the date of this Agreement, is referred to herein as the “Relationship.”\n-2-\n2.\nApplicability to Past Activities. The Company and Consultant acknowledge that Consultant may\nhave performed work, activities, services or made efforts on behalf of or for the benefit of the Company, or related to the\ncurrent or prospective business of the Company in anticipation of Consultant’s involvement with the Company, that would\nhave been “Services” if performed during the term of this Agreement, for a period of time prior to the Effective Date of this\nAgreement (the “Prior Consulting Period”). Accordingly, if and to the extent that, during the Prior Consulting Period: (i)\nConsultant received access to any information from or on behalf of the Company that would have been Confidential\nInformation (as defined below) if Consultant received access to such information during the term of this Agreement; or (ii)\nConsultant (a) conceived, created, authored, invented, developed or reduced to practice any item (including any\nintellectual property rights with respect thereto) on behalf of or for the benefit of the Company, or related to the current or\nprospective business of the Company in anticipation of Consultant’s involvement with the Company, that would have\nbeen an Invention (as defined below) if conceived, created, authored, invented, developed or reduced to practice during\nthe term of this Agreement; or (b) incorporated into any such item any pre-existing invention, improvement, development,\nconcept, discovery or other proprietary information that would have been a Prior Invention (as defined below) if\nincorporated into such item during the term of this Agreement; then any such information shall be deemed “Confidential\nInformation” hereunder and any such item shall be deemed an “Invention” or “Prior Invention” hereunder, and this\nAgreement shall apply to such activities, information or item as if disclosed, conceived, created, authored, invented,\ndeveloped or reduced to practice during the term of this Agreement.\n3.\nExecutive Services Consulting Agreement. Consultant has entered into an agreement with the\nCompany on or about the date hereof to provide various services to the Company (the “Consulting Agreement”). The\nservices rendered by Consultant under the Consulting Agreement are referred to herein as the “Services” and this\nAgreement is intended to supplement and form an integral part of the Consulting Agreement.\n4.\nConfidential Information.\n(a)\nProtection of Information. Consultant understands that during the Relationship, the\nCompany intends to provide Consultant with certain information, including Confidential Information (as defined below),\nwithout which Consultant would not be able to perform Consultant’s duties to the Company. At all times during the term of\nthe Relationship and thereafter, Consultant shall hold in strictest confidence, and not use, except for the benefit of the\nCompany to the extent necessary to perform the Services, and not disclose to any person, firm, corporation or other\nentity, without written authorization from the Company in each instance, any Confidential Information that Consultant\nobtains from the Company or otherwise obtains, accesses or creates in connection with, or as a result of, the Services\nduring the term of the Relationship, whether or not during working hours, until such Confidential Information becomes\npublicly and widely known and made generally available through no wrongful act of Consultant or of others who were\nunder confidentiality obligations as to the item or items involved. Consultant shall not make copies of such Confidential\nInformation except as authorized by the Company or in the ordinary course of the provision of Services.\n-3-\n(b)\nConfidential Information. Consultant understands that “Confidential Information” means\nany and all information and physical manifestations thereof not generally known or available outside the Company and\ninformation and physical manifestations thereof entrusted to the Company in confidence by third parties, whether or not\nsuch information is patentable, copyrightable or otherwise legally protectable. Confidential Information includes, without\nlimitation: (i) Company Inventions (as defined below); and (ii) technical data, trade secrets, know-how, research, product\nor service ideas or plans, software codes and designs, algorithms, developments, inventions, patent applications,\nlaboratory notebooks, processes, formulas, techniques, biological materials, mask works, engineering designs and\ndrawings, hardware configuration information, agreements with third parties, lists of, or information relating to, employees\nand consultants of the Company (including, but not limited to, the names, contact information, jobs, compensation, and\nexpertise of such employees and consultants), lists of, or information relating to, suppliers and customers (including, but\nnot limited to, customers of the Company on whom Consultant called or with whom Consultant became acquainted\nduring the Relationship), price lists, pricing methodologies, cost data, market share data, marketing plans, licenses,\ncontract information, business plans, financial forecasts, historical financial data, budgets or other business information\ndisclosed to Consultant by the Company either directly or indirectly, whether in writing, electronically, orally, or by\nobservation.\nThe Consultant understands that the above list is not exhaustive, and that Confidential Information also includes\nother information that is marked or otherwise identified as confidential or proprietary, or that would otherwise appear to a\nreasonable person to be confidential or proprietary in the context and circumstances in which the information is known or\nused. The Consultant understands and agrees that Confidential Information developed by him or her in the course of his\nengagement with the Company shall be subject to the terms and conditions of this Agreement as if the Company\nfurnished the same Confidential Information to the Consultant in the first instance. Confidential Information shall not\ninclude information that is generally available to and known by the public, provided that such disclosure to the public is\nthrough no direct or indirect fault of the Consultant or person(s) acting on the Consultant’s behalf.\n(c)\nThird Party Information. Consultant’s agreements in this Section 4 are intended to be for\nthe benefit of the Company and any third party that has entrusted information or physical material to the Company in\nconfidence. During the term of the Relationship and thereafter, Consultant will not improperly use or disclose to the\nCompany any confidential, proprietary or secret information of Consultant’s former clients or any other person, and\nConsultant will not bring any such information onto the Company’s property or place of business.\n(d)\nOther Rights. This Agreement is intended to supplement, and not to supersede, any rights\nthe Company may have in law or equity with respect to the protection of trade secrets or confidential or proprietary\ninformation.\n(e)\nU.S . Defend Trade Secrets Act. Notwithstanding the foregoing, the U.S . Defend Trade\nSecrets Act of 2016 (“DTSA”) provides that an individual shall not be held criminally or civilly liable under any federal or\nstate trade secret law for the disclosure of a trade secret that is made (i) in confidence to a federal, state, or local\ngovernment official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or\ninvestigating a suspected violation of law; or (iii) in a complaint or other document filed in a lawsuit or other proceeding, if\nsuch filing is made under seal. In addition, DTSA provides that an individual who files a lawsuit for retaliation by an\nemployer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use\nthe trade secret information in the court proceeding, if the individual (A) files any document containing the trade secret\nunder seal; and (B) does not disclose the trade secret, except pursuant to court order.\n-4-\n(f)\nDisclosure Required by Law. Nothing herein shall be construed to prevent disclosure of\nConfidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of\ncompetent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of\ndisclosure required by such law, regulation or order. The Consultant shall provide written notice of any such order to the\nCompany’s Chief Executive Officer or Chief Operating Officer within forty-eight (48) hours of receiving such order, but in\nany event sufficiently in advance of making any disclosure to permit the Company to contest the order or seek\nconfidentiality protections, as determined in the Company’s sole discretion.\n5.\nOwnership of Inventions.\n(a)\nInventions Retained and Licensed. Consultant has attached hereto, as Exhibit A, a\ncomplete list describing with particularity all Inventions (as defined below) that, as of the Effective Date: (i) have been\ncreated by or on behalf of Consultant, and/or (ii) are owned exclusively by Consultant or jointly by Consultant with others\nor in which Consultant has an interest, and that relate in any way to any of the Company’s actual or proposed\nbusinesses, products, services, or research and development, and which are not assigned to the Company hereunder\n(collectively “Prior Inventions”); or, if no such list is attached, Consultant represents and warrants that there are no such\nInventions at the time of signing this Agreement, and to the extent such Inventions do exist and are not listed on\nExhibit A, Consultant hereby forever waives any and all rights or claims of ownership to such Inventions. Consultant\nunderstands that Consultant’s listing of any Inventions on Exhibit A does not constitute an acknowledgement by the\nCompany of the existence or extent of such Inventions, nor of Consultant’s ownership of such Inventions.\n(b)\nUse or Incorporation of Inventions. Consultant shall not use, disclose or disseminate any\nof the Company’s Confidential Information except as specifically permitted in this Section 5. Consultant may use the\nConfidential Information of the Company solely to perform his obligations under this Agreement for the benefit of the\nCompany. Consultant will exercise the same degree of care as it takes to protect his own confidential information, but in\nno event less than reasonable care. The Consultant may not incorporate any Inventions into any business, venture,\nacademic, other pursuit that Consultant may engage in during or following the termination of the Relationship. If in the\ncourse of the Relationship, Consultant uses or incorporates into any of the Company’s products, services, processes or\nmachines any Invention not assigned to the Company pursuant to Section 5(d) of this Agreement in which Consultant\nhas an interest, Consultant will promptly so inform the Company in writing. Whether or not Consultant gives such notice,\nConsultant hereby irrevocably grants to the Company a nonexclusive, fully paid-up, royalty-free, assumable, perpetual,\nworldwide license, with right to transfer and to sublicense, to practice and exploit such Invention and to make, have\nmade, copy, modify, make derivative works of, use, sell, import, and otherwise distribute such Invention under all\napplicable intellectual property laws without restriction of any kind. The Consultant may not incorporate any Inventions\ninto any business, venture, academic, other pursuit that Consultant may engage in during or following the termination of\nthe Relationship.\n-5-\n(c)\nInventions. Consultant understands that “Inventions” means discoveries, developments,\nconcepts, designs, ideas, know how, modifications, improvements, derivative works, inventions, trade secrets and/or\noriginal works of authorship, whether or not patentable, copyrightable or otherwise legally protectable. Consultant\nunderstands this includes, but is not limited to, any new product, machine, article of manufacture, biological material,\nmethod, procedure, process, technique, use, equipment, device, apparatus, system, compound, formulation, composition\nof matter, design or configuration of any kind, or any improvement thereon. Consultant understands that “Company\nInventions” means any and all Inventions that Consultant or Consultant’s personnel may solely or jointly author,\ndiscover, develop, conceive, or reduce to practice in connection with, or as a result of, the Services performed for the\nCompany or otherwise in connection with the Relationship, except as otherwise provided in Section 5(i) below.\n(d)\nAssignment of Company Inventions. Consultant will promptly make full written disclosure\nto the Company, will hold in trust for the sole right and benefit of the Company, and hereby assigns to the Company, or\nits designee, all of Consultant’s right, title and interest throughout the world in and to any and all Company Inventions and\nall patent, copyright, trademark, trade secret and other intellectual property rights and other proprietary rights therein.\nConsultant hereby waives and irrevocably quitclaims to the Company or its designee any and all claims, of any nature\nwhatsoever, that Consultant now has or may hereafter have for infringement of any and all Company Inventions. Any\nassignment of Company Inventions includes all rights of attribution, paternity, integrity, modification, disclosure and\nwithdrawal, and any other rights throughout the world that may be known as or referred to as “moral rights,” “artist’s\nrights,” “droit moral,” or the like (collectively, “Moral Rights”). To the extent that Moral Rights cannot be assigned under\napplicable law, Consultant hereby waives and agrees not to enforce any and all Moral Rights, including, without\nlimitation, any limitation on subsequent modification, to the extent permitted under applicable law. If Consultant has any\nrights to the Company Inventions, other than Moral Rights, that cannot be assigned to the Company, Consultant hereby\nunconditionally and irrevocably grants to the Company during the term of such rights, an exclusive, irrevocable,\nperpetual, worldwide, fully paid and royalty-free license, with rights to sublicense through multiple levels of sublicensees,\nto reproduce, distribute, display, perform, prepare derivative works of and otherwise modify, make, have made, sell, offer\nto sell, import, practice methods, processes and procedures and otherwise use and exploit, such Company Inventions. .\n-6-\n(e)\nWork for Hire. The Consultant agrees that all marketing, operating and training ideas,\nsourcing data, processes and materials, including all inventions, discoveries, improvements, enhancements, written\nmaterials and development related to the business of the Company (“Proprietary Materials”) to which the Consultant\nmay have access or that the Consultant may develop or conceive while employed by the Company shall be considered\nworks made for hire for the Company and prepared within the scope of employment and shall belong exclusively to the\nCompany. Any Proprietary Materials developed by the Consultant that, under applicable law, may not be considered\nworks made for hire, are hereby assigned to the Company without the need for any further consideration, and the\nConsultant agrees to take such further action, including executing such instruments and documents as the Company may\nreasonably request, to evidence such assignment.\n(f)\nNo License. The Consultant understands that this Agreement does not, and shall not be\nconstrued to, grant the Consultant any license or right of any nature with respect to any Proprietary Materials, Moral\nRights, any Confidential Information, materials, software or other tools made available to him or her by the Company, or\nother intellectual property rights relating thereto.\n(g)\nMaintenance of Records. Consultant shall keep and maintain adequate and current written\nrecords of all Company Inventions made or conceived by Consultant or Consultant’s personnel (solely or jointly with\nothers) during the term of the Relationship. The records may be in the form of notes, sketches, drawings, flow charts,\nelectronic data or recordings, laboratory notebooks, or any other format. The records will be available to and remain the\nsole property of the Company at all times. Consultant shall not remove such records from the Company’s place of\nbusiness or systems except as expressly permitted by Company policy which may, from time to time, be revised at the\nsole election of the Company for the purpose of furthering the Company’s business. Consultant shall deliver all such\nrecords (including any copies thereof) to the Company at the time of termination of the Relationship as provided for in\nSection 6 and Section 7.\n(h)\nIntellectual Property Rights. Consultant shall assist the Company, or its designee, at its\nexpense, in every proper way in securing the Company’s, or its designee’s, rights in the Company Inventions and any\ncopyrights, patents, trademarks, mask work rights, Moral Rights, or other intellectual property rights relating thereto in\nany and all countries, including the disclosure to the Company or its designee of all pertinent information and data with\nrespect thereto, the execution of all applications, specifications, oaths, assignments, recordations, and all other\ninstruments which the Company or its designee shall deem necessary in order to apply for, obtain, maintain and transfer\nsuch rights, or if not transferable, waive and shall never assert such rights, and in order to assign and convey to the\nCompany or its designee, and any successors, assigns and nominees the sole and exclusive right, title and interest in\nand to such Company Inventions, and any copyrights, patents, mask work rights or other intellectual property rights\nrelating thereto. Consultant’s obligation to execute or cause to be executed, when it is in Consultant’s power to do so,\nany such instrument or papers shall continue during and at all times after the end of the Relationship and until the\nexpiration of the last such intellectual property right to expire in any country of the world. Consultant hereby irrevocably\ndesignates and appoints the Company and its duly authorized officers and agents as Consultant’s agent and\nattorney-in-fact, to act for and in Consultant’s behalf and stead to execute and file any such instruments and papers and\nto do all other lawfully permitted acts to further the application for, prosecution, issuance, maintenance or transfer of\nletters patent, copyright, mask work and other registrations related to such Company Inventions. This power of attorney is\ncoupled with an interest and shall not be affected by Consultant’s subsequent incapacity.\n-7-\n(i)\nException to Assignments. Subject to the requirements of applicable state law, if any,\nexempting certain Company Inventions, from the assignment provisions of this Agreement, Consultant understands that\nall Company Inventions must be, and are, assigned to the Company pursuant to this Agreement In order to assist in the\ndetermination of which inventions qualify for such state law exclusion, Consultant will advise the Company promptly in\nwriting, during and for a period of forty-eight (48) months immediately following the termination of the Relationship, of all\nInventions solely or jointly conceived or developed or reduced to practice by Consultant or Consultant’s personnel during\nthe period of the Relationship.\n6.\nCompany Property; Returning Company Documents. Consultant acknowledges that Consultant\nhas no expectation of privacy with respect to the Company’s telecommunications, networking or information processing\nsystems (including, without limitation, files, e-mail messages, and voice messages) and that Consultant’s activity and any\nfiles or messages on or using any of those systems may be monitored or reviewed at any time without notice. Consultant\nfurther acknowledges that any property situated on the Company’s premises or systems and owned by the Company,\nincluding disks and other storage media, filing cabinets or other work areas, is subject to inspection by Company\npersonnel at any time with or without notice. At the time of termination of the Relationship, Consultant will deliver to the\nCompany (and will not keep in Consultant’s possession, recreate or deliver to anyone else) any and all devices, records,\ndata, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, laboratory\nnotebooks, materials, flow charts, equipment, other documents or property, or reproductions of any of the\naforementioned items developed by Consultant or Consultant’s personnel pursuant to the Relationship or otherwise\nbelonging to the Company, its successors or assigns.\n7.\nTermination Certification. In the event of the termination of the Relationship, Consultant shall sign\nand deliver the “Termination Certification” attached hereto as Exhibit B; however, Consultant’s failure to sign and\ndeliver the Termination Certification shall in no way diminish Consultant’s continuing obligations under this Agreement.\n8.\nNotice to Third Parties. During the periods of time during which Consultant is restricted in taking\ncertain actions by the terms of Section 9 of this Agreement (the “Restriction Period”), Consultant shall inform any entity\nor person with whom Consultant may seek to enter into a business relationship (whether as an owner, employee,\nindependent contractor or otherwise) of Consultant’s contractual obligations under this Agreement. Consultant\nacknowledges that the Company may, with or without prior notice to Consultant and whether during or after the term of\nthe Relationship, notify third parties of Consultant’s agreements and obligations under this Agreement. Upon written\nrequest by the Company, Consultant will respond to the Company in writing regarding the status of Consultant’s\nengagement or proposed engagement with any party during the Restriction Period.\n-8-\n9.\nSolicitation of Employees, Consultants and Other Parties. As described above, Consultant\nacknowledges that the Company’s Confidential Information includes information relating to the Company’s employees,\nconsultants, customers and others, and Consultant will not use or disclose such Confidential Information except as\nauthorized by the Company in advance in writing. Consultant further agrees as follows:\n(a)\nEmployees, Consultants. During the term of the Relationship, and for a period of twelve\n(12) months immediately following the termination of the Relationship for any reason, whether with or without cause,\nConsultant shall not, directly or indirectly, solicit any of the Company’s employees or consultants to terminate their\nrelationship with the Company, or attempt to solicit employees or consultants of the Company, either for Consultant or for\nany other person or entity.\n(b)\nOther Parties. During the term of the Relationship, Consultant will not influence any of the\nCompany’s clients, licensors, licensees or customers from purchasing Company products or services or solicit or\ninfluence or attempt to influence any client, licensor, licensee, customer or other person either directly or indirectly, to\ndirect any purchase of products and/or services to any person, firm, corporation, institution or other entity in competition\nwith the business of the Company.\n10.\nNo Change to Duration of Relationship. Consultant understands and acknowledges that this\nAgreement does not alter, amend or expand upon any rights Consultant may have to continue in the consulting\nrelationship with, or in the duration of Consultant’s consulting relationship with, the Company under any existing\nagreements between the Company and Consultant, including without limitation the Consulting Agreement, or under\napplicable law.\n11.\nRepresentations and Covenants.\n(a) Facilitation of Agrement. Consultant shall execute promptly, both during and after the end of the\nRelationship, any proper oath, and to verify any proper document, required to carry out the terms of this Agreement, upon\nthe Company’s written request to do so.\n(b) No Conflicts. Consultant represents and warrants that Consultant’s performance of all the terms\nof this Agreement does not and will not breach any agreement Consultant has entered into, or will enter into, with any\nthird party, including without limitation any agreement to keep in confidence proprietary information or materials acquired\nby Consultant in confidence or in trust prior to or during the Relationship. Consultant will not disclose to the Company or\nuse any inventions, confidential or non-public proprietary information or material belonging to any previous client,\nemployer or any other party. Consultant will not induce the Company to use any inventions, confidential or non-public\nproprietary information, or material belonging to any previous client, employer or any other party. Consultant represents\nand warrants that Consultant has listed on Exhibit C all agreements (e.g., non-competition agreements, non-solicitation\nof customers agreements, non-solicitation of employees agreements, confidentiality agreements, inventions agreements,\netc.), if any, with a current or former client, employer, or any other person or entity, that may restrict Consultant’s ability to\nperform services for the Company or Consultant’s ability to recruit or engage customers or service providers on behalf of\nthe Company, or otherwise relate to or restrict Consultant’s ability to perform Consultant’s duties for the Company or any\nobligation Consultant may have to the Company. Consultant shall not enter into any written or oral agreement that\nconflicts with the provisions of this Agreement.\n-9-\n(c) No Other Consulting Agreements. Consultant represents and warrants that Consultant does\nnot presently perform nor will he perform, during the term of the Agreement, consulting or other services for, or engage in\nor intend to engage in an employment relationship with, companies whose businesses or proposed businesses in any\nway, in the opinion of the Company, involve products or services which would be competitive with the Company’s\nproducts or services, or those products or services proposed or in development by the Company during the term of the\nAgreement or would adversely affect the Consult’s ability to perform the Services hereunder. If, however, Consultant\ndesire to perform such services for a third party, Consultant agrees that, in advance of accepting such work, Consultant\nwill promptly notify the Company in writing, specifying the organization with which Consultant proposes to consult,\nprovide services, or become employed by and to provide information sufficient to allow the Company to determine if such\nwork would conflict with the terms of this Agreement, including the terms of the Confidentiality Agreement (defined\nbelow), the interests of the Company or further services which the Company might request of Consultant. If the Company\ndetermines, in its so discretion, that such work conflicts with the terms of this Agreement, the Consultant shall not\nundertake such engagements. Nothing herein shall be deemed to release the Consultant with respect to his obligations\nwith respect to the Confidential Information pursuant to this Agreement.\n(d) Non-Competition and Non-Solicitation and Non-Circumvention.\n(i) Non-Competition. Except as authorized by the Company’s Board of Directors, during the\nterm of the Relationship and for a period of twelve (12) months thereafter, the Consultant will not (except as an officer,\ndirector, stockholder, employee, agent or consultant of the Company or any subsidiary or affiliate thereof) either directly\nor indirectly, whether or not for consideration, (i) in any way, directly or indirectly, solicit, divert, or take away the business\nof any person who is or was a customer of the Company, or in any manner influence such person to cease doing\nbusiness in part or in whole with Company; (ii) engage in a Competing Business; or (iii) except for investments or\nownership in public entities, mutual funds and similar investments, none of which constitute more than 5% of the\nownership (provided such ownership interest is acquired solely for investment purposes) or control of such entities, own,\noperate, control, finance, manage, advise, be employed by or engaged by, perform any services for, invest or otherwise\nbecome associated in any capacity with any person engaged in a Competing Business; or (iv) engage in any practice the\npurpose or effect of which is to intentionally evade the provisions of this covenant. For purposes of this section,\n“Competing Business” means any company or business which is engaged directly or indirectly in any Company\nBusiness carried on or planned to be carried on (if such plans were developed the term of the Relationship) by the\nCompany; and “Company Business” means the Company’s business activities and operations as conducted during the\nterm of the Relationship and all products conceived, planned, researched, developed, tested, manufactured, sold,\nlicensed, leased or otherwise distributed or put into use by the Company, together with all services provided or planned\nby the Company, during your relationship with the Company.\n-10-\n(ii) Non-Solicitation and Non-Circumvention. For a period of twelve (12) months following\nthe termination of the Relationship, the Consultant will not directly or indirectly, whether for your account or for the\naccount of any other individual or entity, solicit or canvas the trade, business or patronage of, or sell to, any individuals or\nentities that were investors, customers or employees of the Company during the term of this Agreement, or prospective\ncustomers with respect to whom a sales effort, presentation or proposal was made by the Company or its affiliates,\nduring the one year period prior to the termination of the Relationship. Without limiting the foregoing, the Consultant shall\nnot, directly or indirectly (i) solicit, induce, enter into any agreement with, or attempt to influence any individual who was\nan employee or consultant of the Company at any time during the term of Relationship, to terminate his or her\nemployment relationship with the Company or to become employed or engaged by the Consultant or any individual or\nentity by which the Consultant are employed or for which you are acting as a consultant or other advisory capacity,\nand/or (ii) interfere in any other way with the employment, or other relationship, of any employee of, or consultant to, the\nCompany.\n(iii) Injunctive Relief. The Consultant acknowledges and agrees that the covenants and\nobligations of the Consultant set forth in this Agreement relate to special, unique and extraordinary Services rendered by\nthe Consultant to the Company and that a violation of any of the terms of such covenants and obligations will cause the\nCompany irreparable injury for which adequate remedies are not available at law. Therefore, the Consultant agrees that\nthe Company shall be entitled to seek an injunction, restraining order or other temporary or permanent equitable relief\n(without the requirement to post bond) restraining the Consultant from committing any violation of the covenants and\nobligations contained herein. These injunctive remedies are cumulative and are in addition to any other rights and\nremedies the Company may have at law or in equity.\n-1 1-\n(e) Voluntary Execution. Consultant certifies and acknowledges that Consultant has carefully read\nall of the provisions of this Agreement, that Consultant understands and has voluntarily accepted such provisions, and\nthat Consultant will fully and faithfully comply with such provisions.\n12.\nElectronic Delivery. Nothing herein is intended to imply a right to participate in any of the\nCompany’s equity incentive plans, however, if Consultant does participate in such plan(s), the Company may, in its sole\ndiscretion, decide to deliver any documents related to Consultant’s participation in the Company’s equity incentive plan(s)\nby electronic means or to request Consultant’s consent to participate in such plan(s) by electronic means. Consultant\nhereby consents to receive such documents by electronic delivery and agrees, if applicableto participate in such plan(s)\nthrough an on-line or electronic system established and maintained by the Company or a third party designated by the\nCompany.\n13.\nMiscellaneous.\n(a)\nGoverning Law. The validity, interpretation, construction and performance of this\nAgreement, and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be\ngoverned, construed and interpreted in accordance with the laws of the state of Nevada, without giving effect to principles\nof conflicts of law. Consultant acknowledges that he may not have the rights and privileges under applicable Nevada law\nthat he might otherwise have under the applicable laws of the United Kingdom with respect to this Agreement which he\nhereby knowingly and willingly waives.\n(b)\nEntire Agreement. Except as described in Section 3, this Agreement sets forth the entire\nagreement and understanding between the Company and Consultant relating to its subject matter and merges all prior\ndiscussions between the parties to this Agreement. No amendment to this Agreement will be effective unless in writing\nsigned by both parties to this Agreement. The Company shall not be deemed hereby to have waived any rights or\nremedies it may have in law or equity, nor to have given any authorizations or waived any of its rights under this\nAgreement, unless, and only to the extent, it does so by a specific writing signed by a duly authorized officer of the\nCompany. Any subsequent change or changes in Consultant’s duties, obligations, rights or compensation will not affect\nthe validity or scope of this Agreement.\n(c)\nSuccessors and Assigns. This Agreement will be binding upon Consultant’s successors\nand assigns, and will be for the benefit of the Company, its successors, and its assigns.\n(d)\nNotices. Any notice, demand or request required or permitted to be given under this\nAgreement shall be in writing and shall be deemed sufficient when delivered personally or by overnight courier or sent by\nemail, or 48 hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, addressed to\nthe party to be notified at such party’s address as set forth on the signature page, as subsequently modified by written\nnotice, or if no address is specified on the signature page, at the most recent address set forth in the Company’s books\nand records.\n-12-\n(e)\nSeverability. If one or more of the provisions in this Agreement are deemed void or\nunenforceable to any extent in any context, such provisions shall nevertheless be enforced to the fullest extent allowed\nby law in that and other contexts, and the validity and force of the remainder of this Agreement shall not be affected. The\nCompany and Consultant have attempted to limit Consultant’s right to use, maintain and disclose the Company’s\nConfidential Information, and to limit Consultant’s right to solicit employees and customers only to the extent necessary to\nprotect the Company from unfair competition. Should a court of competent jurisdiction determine that the scope of the\ncovenants contained in Section 9 and 11 exceeds the maximum restrictiveness such court deems reasonable and\nenforceable, the parties intend that the court should reform, modify and enforce the provision to such narrower scope as\nit determines to be reasonable and enforceable under the circumstances existing at that time. In the event that any court\nor government agency of competent jurisdiction determines that, notwithstanding the terms of the Consulting Agreement\nspecifying Consultant’s Relationship with the Company as that of an independent contractor, Consultant’s provision of\nservices to the Company is not as an independent contractor but instead as an employee under the applicable laws, then\nsolely to the extent that such determination is applicable, references in this Agreement to the Relationship between\nConsultant and the Company shall be interpreted to include an employment relationship, and this Agreement shall not be\ninvalid and unenforceable but shall be read to the fullest extent as may be valid and enforceable under the applicable\nlaws to carry out the intent and purpose of this Agreement.\n(f)\nRemedies. Consultant acknowledges that violation of this Agreement by Consultant may\ncause the Company irreparable harm, and therefore Consultant agrees that the Company will be entitled to seek\nextraordinary relief in court, including, but not limited to, temporary restraining orders, preliminary injunctions and\npermanent injunctions without the necessity of posting a bond or other security (or, where such a bond or security is\nrequired, that a $1,000 bond will be adequate), in addition to and without prejudice to any other rights or remedies that\nthe Company may have for a breach of this Agreement.\n(g)\nAdvice of Counsel. Consultant acknowledges THAT, IN EXECUTING THIS AGREEMENT,\nConsultant Has HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND\nConsultant Has read and understands ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS\nAGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR\nPREPARATION HEREOF.\n(h)\nCounterparts. This Agreement may be executed in any number of counterparts, each of\nwhich when so executed and delivered shall be deemed an original, and all of which together shall constitute one and the\nsame agreement. Execution of a facsimile or scanned copy will have the same force and effect as execution of an\noriginal, and a facsimile or scanned signature will be deemed an original and valid signature.\n-13-\n(i)\nEffective Date. Regardless of the date on which this Agreement is executed by the parties\nhereto, the effective date of this Agreement is June 1, 2019.\n[Signature Page Follows]\n-1 4-\nSIGNATURES\nThe parties have executed this Confidential Information and Invention Assignment Agreement on the respective dates set\nforth below, to be effective as of the Effective Date first above written.\nthe company:\nrenovacare, Inc.\nBy: /s/ Harmel S. Rayat_________________________\n(Signature)\nName: Harmel S. Rayat\nTitle: Chief Executive Officer\nAddress:\nRenovaCare, Inc.\n9375 East Shea Blvd.,\nSuite 107-A\nScottsdale, AZ 85260\nAttention: Harmel S. Rayat\nFacsimile: 604-336-8609\nEmail Address: hsr@renovacareinc.com\nCONSULTANT:\nRoger Esteban-Vives\n(Print Name)\n/s/ Roger Esteban-Vives__________________________\n(Signature)\nAddress:\nRoger Esteban_Viives\nFlat 1, 3 Recovery St.\nLondon, SW170DL, United Kingdom\nEmail: ________________________\nFacsimile: ______________________\n-15-	EXHIBIT D\nTo THE RENOVACARE, lNC.—ROGER ESTEBAN-VIVES\nCONSULTING AGREEMENT\nDATED\nJUNE 4, 2019\n>I°I°I°I<\nConfidential information and\ninvention assignment agreement\nRENOVACARE, INC.\nCONFIDENTIAL INFORMATION AND\nINVENTION ASSIGNMENT AGREEMENT\nConfidential Information and Invention AssignmentAgreement is dated as of] une 4,2019 by and between\nRenovaCare, Inc., a Nevada corporation (the “RCAR”), and Roger Esteban-Vives, an individual having his place of\nbusiness in London, England (“Consultant”).\nAs a condition of becoming retained (or Consultant's consulting relationship being continued) by RCAR, or any of\nits current or future subsidiaries, affiliates, successors or assigns (collectively, the “Company”), and in consideration of\nConsultant's consulting relationship with the Company and receipt of the compensation now and hereafter paid by the\nCompany, the receiptofConfidential Information (as defined below) while associated with the Company, and other good\nand valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Consultant hereby agrees to\nthe following:\n1. Relationship. This Confidential Information and Invention AssignmentAgreement (this\n“Agreement”) will apply to Consultant's consulting relationship with the Company. If that relationship ends and the\nCompany, within one (1) year thereafter, either employs Consultant or re-engages Consultant as a consultant, this\nAgreement will also apply to such later employment or consulting relationship, unless the parties hereto otherwise agree\nin writing. Any employment or consulting relationship between the parties hereto, whether commenced priorto, upon or\nafter the date of this Agreement, is referred to herein as the “Relationship.”\n2. Applicability to Past Activities. The Company and Consultant acknowledge that Consultant may\nhave performed work, activities, services or made efforts on behalf of orfor the benefit of the Company, or related to the\ncurrent or prospective business of the Company in anticipation of Consultant's involvement with the Company, that would\nhave been “Services” if performed during the term of this Agreement, for a period of time priorto the Effective Date of this\nAgreement (the “Prior Consulting Period”). Accordingly, if and to the extent that, during the Prior Consulting Period: (i)\nConsultant received access to any information from or on behalf of the Company thatwould have been Confidential\nInformation (as defined below) if Consultant received access to such information during the term of this Agreement; or (ii)\nConsultant (a) conceived, created, authored, invented, developed or reduced to practice any item (including any\nintellectual property rights with respect thereto) on behalf of orforthe benefit of the Company, or related to the current or\nprospective business ofthe Company in anticipation of Consultant's involvement with the Company, that would have\nbeen an Invention (as defined below) ifconceived, created, authored, invented, developed or reduced to practice during\nthe term of this Agreement; or (b) incorporated into any such item any pre-existing invention, improvement, development,\nconcept, discovery or other proprietary information that would have been a Prior Invention (as defined below) if\nincorporated into such item during the term of this Agreement; then any such information shall be deemed “Confidential\nInformation” hereunder and any such item shall be deemed an “Invention” or “Prior Invention” hereunder, and this\nAgreementshall apply to such activities, information or item as ifdisclosed, conceived, created, authored, invented,\ndeveloped or reduced to practice during the term of this Agreement.\n3. Executive Services Consulting Agreement. Consultant has entered into an agreement with the\nCompany on or aboutthe date hereof to provide various services to the Company (the “Consulting Agreement”). The\nservices rendered by Consultant underthe Consulting Agreementare referred to herein as the “Services”and this\nAgreement is intended to supplement and form an integral part of the Consulting Agreement.\n4. Confidential Information.\n(a) Protection of Information. Consultant understands that during the Relationship, the\nCompany intends to provide Consultant with certain information, including Confidential Information (as defined below),\nwithout which Consultant would not be able to perform Consultant's duties to the Company. At all times during the term of\nthe Relationship and thereafter, Consultant shall hold in strictest confidence, and not use, except forthe benefit of the\nCompany to the extent necessary to perform the Services, and not disclose to any person, firm, corporation or other\nentity, without written authorization from the Company in each instance, any Confidential Information that Consultant\nobtains from the Company or otherwise obtains, accesses or creates in connection with, or as a result of, the Services\nduring the term of the Relationship, whether or not during working hours, until such Confidential Information becomes\npublicly and widely known and made generally available through no wrongful act of Consultant or of others who were\nunder confidentiality obligations as to the item or items involved. Consultant shall not make copies of such Confidential\nInformation except as authorized by the Company or in the ordinary course of the provision of Services.\n-3-\n(b) Confidential Information. Consultant understands that “Confidential Information” means\nany and all information and physical manifestations thereof not generally known or available outside the Company and\ninformation and physical manifestations thereof entrusted to the Company in confidence by third parties, whether or not\nsuch information is patentable, copyrightable or othenNise legally protectable. Confidential Information includes, without\nlimitation: (i) Company Inventions (as defined below); and (ii) technical data, trade secrets, know-how, research, product\nor service ideas or plans, software codes and designs, algorithms, developments, inventions, patent applications,\nlaboratory notebooks, processes, formulas, techniques, biological materials, mask works, engineering designs and\ndrawings, hardware configuration information, agreements with third parties, lists of, or information relating to, employees\nand consultants of the Company (including, but not limited to, the names, contact information, jobs, compensation, and\nexpertise of such employees and consultants), lists of, or information relating to, suppliers and customers (including, but\nnot limited to, customers of the Company on whom Consultant called or with whom Consultant became acquainted\nduring the Relationship), price lists, pricing methodologies, costdata, marketshare data, marketing plans, licenses,\ncontract information, business plans, financial forecasts, historical financial data, budgets or other business information\ndisclosed to Consultant by the Company either directly or indirectly, whether in writing, electronically, orally, or by\nobservation.\nThe Consultant understands that the above list is not exhaustive, and that Confidential Information also includes\nother information that is marked or otherwise identified as confidential or proprietary, or that would otherwise appearto a\nreasonable person to be confidential or proprietary in the context and circumstances in which the information is known or\nused. The Consultant understands and agrees that Confidential Information developed by him or her in the course of his\nengagement with the Company shall be subject to the terms and conditions of this Agreement as if the Company\nfurnished the same Confidential Information to the Consultant in the first instance. Confidential Information shall not\ninclude information that is generally available to and known by the public, provided thatsuch disclosure to the public is\nthrough no direct or indirect fault of the Consultant or person(s) acting on the Consultant's behalf.\n(c) Third Par_ty Information. Consultant's agreements in this Section 4 are intended to be for\nthe benefit of the Company and any third party that has entrusted information or physical material to the Company in\nconfidence. During the term of the Relationship and thereafter, Consultant will not improperly use or disclose to the\nCompany any confidential, proprietary or secret information of Consultant's former clients or any other person, and\nConsultant will not bring any such information onto the Company's property or place of business.\n(d) Other Rights. This Agreement is intended to supplement, and not to supersede, any rights\nthe Company may have in law or equity with respect to the protection of trade secrets or confidential or proprietary\ninformation.\n(e) U.S. Defend Trade Secrets Act. Notwithstanding the foregoing, the U.S. Defend Trade\nSecrets Act of 2016 (“DTSA”) provides that an individual shall not be held criminally or civilly liable under any federal or\nstate trade secret law for the disclosure of a trade secret that is made (i) in confidence to a federal, state, or local\ngovernment official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or\ninvestigating a suspected violation of law; or (iii) in a complaint or other document filed in a lawsuit or other proceeding, if\nsuch filing is made under seal. In addition, DTSA provides thatan individual who files a lawsuit for retaliation by an\nemployer for reporting a suspected violation of law may disclose the trade secret to the attorney ofthe individual and use\nthe trade secret information in the court proceeding, if the individual (A) files any document containing the trade secret\nunder seal; and (B) does not disclose the trade secret, except pursuant to court order.\n-4-\n(f) Disclosure Required by Law. Nothing herein shall be construed to prevent disclosure of\nConfidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of\ncompetentjurisdiction or an authorized government agency, provided thatthe disclosure does not exceed the extent of\ndisclosure required by such law, regulation or order. The Consultant shall provide written notice of any such order to the\nCompany's Chief Executive Officer or Chief Operating Officer within forty-eight (48) hours of receiving such order, but in\nany event sufficiently in advance of making any disclosure to permit the Company to contest the order or seek\nconfidentiality protections, as determined in the Company's sole discretion.\n5. Ownership of Inventions.\n(a) Inventions Retained and Licensed. Consultant has attached hereto, as Exhibit A, a\ncomplete list describing with particularity all Inventions (as defined below) that, as of the Effective Date: (i) have been\ncreated by or on behalf of Consultant, and/or (ii) are owned exclusively by Consultant orjointly by Consultant with others\nor in which Consultant has an interest, and that relate in any way to any of the Company's actual or proposed\nbusinesses, products, services, or research and development, and which are not assigned to the Company hereunder\n(collectively “Prior Inventions”); or, if no such list is attached, Consultant represents and warrants that there are no such\nInventions at the time of signing this Agreement, and to the extent such Inventions do exist and are not listed on\nExhibitA, Consultant hereby forever waives any and all rights or claims of ownership to such Inventions. Consultant\nunderstands that Consultant's listing of any Inventions on ExhibitA does not constitute an acknowledgement by the\nCompany of the existence or extent of such Inventions, nor of Consultant's ownership of such Inventions.\n(b) Use or Incorporation of Inventions. Consultant shall not use, disclose or disseminate any\nof the Company's Confidential Information except as specifically permitted in this Section 5. Consultant may use the\nConfidential Information of the Company solely to perform his obligations underthis Agreement forthe benefit of the\nCompany. Consultant will exercise the same degree of care as it takes to protect his own confidential information, but in\nno event less than reasonable care. The Consultant may not incorporate any Inventions into any business, venture,\nacademic, other pursuit that Consultant may engage in during orfollowing the termination of the Relationship. If in the\ncourse ofthe Relationship, Consultant uses or incorporates into any of the Company's products, services, processes or\nmachines any Invention not assigned to the Company pursuant to Section 5(d) of this Agreement in which Consultant\nhas an interest, Consultant will promptly so inform the Company in writing. Whether or not Consultant gives such notice,\nConsultant hereby irrevocably grants to the Company a nonexclusive, fully paid-up, royalty-free, assumable, perpetual,\nworldwide license, with right to transfer and to sublicense, to practice and exploit such Invention and to make, have\nmade, copy, modify, make derivative works of, use, sell, import, and otherwise distribute such Invention under all\napplicable intellectual property laws without restriction of any kind. The Consultant may not incorporate any Inventions\ninto any business, venture, academic, other pursuit that Consultant may engage in during orfollowing the termination of\nthe Relationship.\n \n(c) Inventions. Consultant understands that “Inventions” means discoveries, developments,\nconcepts, designs, ideas, know how, modifications, improvements, derivative works, inventions, trade secrets and/or\noriginal works of authorship, whether or not patentable, copyrightable or otherwise legally protectable. Consultant\nunderstands this includes, but is not limited to, any new product, machine, article of manufacture, biological material,\nmethod, procedure, process, technique, use, equipment, device, apparatus, system, compound, formulation, composition\nof matter, design or configuration of any kind, or any improvement thereon. Consultant understands that “Company\nInventions” means any and all Inventions that Consultant or Consultant's personnel may solely orjointly author,\ndiscover, develop, conceive, or reduce to practice in connection with, or as a result of, the Services performed forthe\nCompany or otherwise in connection with the Relationship, except as otherwise provided in Section 5(i) below.\n(d) Assignment ofComQany Inventions. Consultant will promptly make full written disclosure\nto the Company, will hold in trustforthe sole rightand benefit of the Company, and hereby assigns to the Company, or\nits designee, all of Consultant's right, title and interest throughout the world in and to any and all Company Inventions and\nall patent, copyright, trademark, trade secret and other intellectual property rights and other proprietary rights therein.\nConsultant hereby waives and irrevocably quitclaims to the Company or its designee any and all claims, of any nature\nwhatsoever, that Consultant now has or may hereafter have for infringement of any and all Company Inventions. Any\nassignment of Company Inventions includes all rights of attribution, paternity, integrity, modification, disclosure and\nwithdrawal, and any other rights throughout the world that may be known as or referred to as “moral rights,” “artist's\nrights,” “droit moral,” orthe like (collectively, “Moral Rights”). To the extent that Moral Rights cannot be assigned under\napplicable law, Consultant hereby waives and agrees notto enforce any and all Moral Rights, including, without\nlimitation, any limitation on subsequent modification, to the extent permitted under applicable law. If Consultant has any\nrights to the Company Inventions, otherthan Moral Rights, thatcannot be assigned to the Company, Consultant hereby\nunconditionally and irrevocably grants to the Company during the term of such rights, an exclusive, irrevocable,\nperpetual, worldwide, fully paid and royalty-free license, with rights to sublicense through multiple levels ofsublicensees,\nto reproduce, distribute, display, perform, prepare derivative works of and othenNise modify, make, have made, sell, offer\nto sell, import, practice methods, processes and procedures and otherwise use and exploit, such Company Inventions. .\n-6-\n(e) Work for Hire. The Consultant agrees that all marketing, operating and training ideas,\nsourcing data, processes and materials, including all inventions, discoveries, improvements, enhancements, written\nmaterials and development related to the business ofthe Company (“Proprietary Materials”) to which the Consultant\nmay have access or thatthe Consultant may develop or conceive while employed by the Company shall be considered\nworks made for hire forthe Company and prepared within the scope of employment and shall belong exclusively to the\nCompany. Any Proprietary Materials developed by the Consultantthat, under applicable law, may not be considered\nworks made for hire, are hereby assigned to the Company withoutthe need for any further consideration, and the\nConsultant agrees to take such further action, including executing such instruments and documents as the Company may\nreasonably request, to evidence such assignment.\n(f) No License. The Consultant understands thatthis Agreement does not, and shall not be\nconstrued to, grant the Consultant any license or right of any nature with respect to any Proprietary Materials, Moral\nRights, any Confidential Information, materials, software or othertools made available to him or her by the Company, or\nother intellectual property rights relating thereto.\n(g) Maintenance of Records. Consultant shall keep and maintain adequate and current written\nrecords of all Company Inventions made or conceived by Consultant or Consultant's personnel (solely orjointly with\nothers) during the term of the Relationship. The records may be in the form of notes, sketches, drawings, flow charts,\nelectronic data or recordings, laboratory notebooks, or any other format. The records will be available to and remain the\nsole property of the Company at all times. Consultant shall not remove such records from the Company's place of\nbusiness or systems except as expressly permitted by Company policy which may, from time to time, be revised at the\nsole election of the Company for the purpose offurthering the Company's business. Consultant shall deliver all such\nrecords (including any copies thereof) to the Company atthe time of termination of the Relationship as provided for in\nSection 6 and Section 7.\n(h) Intellectual Proper_ty Rights. Consultant shall assistthe Company, or its designee, at its\nexpense, in every proper way in securing the Company's, or its designee's, rights in the Company Inventions and any\ncopyrights, patents, trademarks, mask work rights, Moral Rights, or other intellectual property rights relating thereto in\nany and all countries, including the disclosure to the Company or its designee of all pertinent information and data with\nrespectthereto, the execution of all applications, specifications, oaths, assignments, recordations, and all other\ninstruments which the Company or its designee shall deem necessary in orderto apply for, obtain, maintain and transfer\nsuch rights, or if not transferable, waive and shall never assert such rights, and in orderto assign and convey to the\nCompany or its designee, and any successors, assigns and nominees the sole and exclusive right, title and interest in\nand to such Company Inventions, and any copyrights, patents, mask work rights or other intellectual property rights\nrelating thereto. Consultant's obligation to execute or cause to be executed, when it is in Consultant's powerto do so,\nany such instrument or papers shall continue during and at all times afterthe end of the Relationship and until the\nexpiration of the last such intellectual property right to expire in any country of the world. Consultant hereby irrevocably\ndesignates and appoints the Company and its duly authorized officers and agents as Consultant's agentand\nattorney-in-fact, to actfor and in Consultant's behalf and stead to execute and file any such instruments and papers and\nto do all other lawfully permitted acts to further the application for, prosecution, issuance, maintenance ortransfer of\nletters patent, copyright, mask work and other registrations related to such Company Inventions. This power of attorney is\ncoupled with an interest and shall not be affected by Consultant's subsequent incapacity.\n-7-\n \n(i) Exception to Assignments. Subject to the requirements of applicable state law, if any,\nexempting certain Company Inventions, from the assignment provisions of this Agreement, Consultant understands that\nall Company Inventions must be, and are, assigned to the Company pursuant to this Agreement In orderto assist in the\ndetermination of which inventions qualify for such state law exclusion, Consultant will advise the Company promptly in\nwriting, during and for a period of forty-eight (48) months immediately following the termination of the Relationship, of all\nInventions solely orjointly conceived or developed or reduced to practice by Consultant or Consultant's personnel during\nthe period of the Relationship.\n6. Company Proper_ty; Returning Company Documents. Consultant acknowledges that Consultant\nhas no expectation of privacy with respect to the Company's telecommunications, networking or information processing\nsystems (including, without limitation, files, e-mail messages, and voice messages) and that Consultant's activity and any\nfiles or messages on or using any of those systems may be monitored or reviewed at any time without notice. Consultant\nfurther acknowledges that any property situated on the Company's premises or systems and owned by the Company,\nincluding disks and other storage media, filing cabinets or other work areas, is subjectto inspection by Company\npersonnel at any time with or without notice. At the time of termination of the Relationship, Consultant will deliverto the\nCompany (and will not keep in Consultant's possession, recreate or deliverto anyone else) any and all devices, records,\ndata, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, laboratory\nnotebooks, materials, flow charts, equipment, other documents or property, or reproductions of any of the\naforementioned items developed by Consultantor Consultant's personnel pursuant to the Relationship or otherwise\nbelonging to the Company, its successors or assigns.\n7. Termination Certification. In the event of the termination of the Relationship, Consultant shall sign\nand deliverthe 'Terminafion Certification” attached hereto as Exhibit B; however, Consultant's failure to sign and\ndeliverthe Termination Certification shall in no way diminish Consultant's continuing obligations underthis Agreement.\n8. Notice to Third Parties. During the periods of time during which Consultant is restricted in taking\ncertain actions by the terms of Section 9 of this Agreement (the “Restriction Period”), Consultant shall inform any entity\nor person with whom Consultant may seek to enter into a business relationship (whether as an owner, employee,\nindependent contractor or otherwise) of Consultant's contractual obligations underthis Agreement. Consultant\nacknowledges that the Company may, with or without prior notice to Consultant and whether during or afterthe term of\nthe Relationship, notify third parties of Consultant's agreements and obligations under this Agreement. Upon written\nrequest by the Company, Consultant will respond to the Company in writing regarding the status of Consultant's\nengagement or proposed engagement with any party during the Restriction Period.\n-8-\n \n9. Solicitation of Employees, Consultant and Other Parties. As described above, Consultant\nacknowledges that the Company's Confidential Information includes information relating to the Company's employees,\nconsultants, customers and others, and Consultant will not use or disclose such Confidential Information except as\nauthorized by the Company in advance in writing. Consultant further agrees as follows:\n(a) EmployeesI Consultant. During the term of the Relationship, and for a period of twelve\n(12) months immediately following the termination of the Relationship for any reason, whether with or without cause,\nConsultant shall not, directly or indirectly, solicit any of the Company's employees or consultants to terminate their\nrelationship with the Company, or attempt to solicit employees or consultants of the Company, eitherfor Consultant or for\nany other person or entity.\n(b) Other Parties. During the term of the Relationship, Consultant will not influence any of the\nCompany's clients, licensors, licensees or customers from purchasing Company products or services or solicitor\ninfluence or attempt to influence any client, licensor, licensee, customer or other person either directly or indirectly, to\ndirect any purchase of products and/or services to any person, firm, corporation, institution or other entity in competition\nwith the business of the Company.\n10. No Change to Duration of Relationship. Consultant understands and acknowledges that this\nAgreement does not alter, amend or expand upon any rights Consultant may have to continue in the consulting\nrelationship with, or in the duration of Consultant's consulting relationship with, the Company under any existing\nagreements between the Company and Consultant, including without limitation the Consulting Agreement, or under\napplicable law.\n11. Representations and Covenant.\n(a) Facilitation ongrement. Consultant shall execute promptly, both during and afterthe end of the\nRelationship, any proper oath, and to verify any proper document, required to carry out the terms of this Agreement, upon\nthe Company's written requestto do so.\n(b) No Conflict. Consultant represents and warrants that Consultant's performance of all the terms\nof this Agreement does not and will not breach any agreement Consultant has entered into, or will enter into, with any\nthird party, including without limitation any agreement to keep in confidence proprietary information or materials acquired\nby Consultant in confidence or in trust priorto or during the Relationship. Consultant will not disclose to the Company or\nuse any inventions, confidential or non-public proprietary information or material belonging to any previous client,\nemployer or any other party. Consultant will not induce the Company to use any inventions, confidential or non-public\nproprietary information, or material belonging to any previous client, employer or any other party. Consultant represents\nand warrants thatConsultant has listed on ExhibitC all agreements (e.g., non-competition agreements, non-solicitation\nofcustomers agreements, non-solicitation ofemployees agreements, confidentiality agreements, inventions agreements,\netc.), if any, with a current or former client, employer, or any other person or entity, that may restrict Consultant's ability to\nperform services forthe Company or Consultant's ability to recruit or engage customers or service providers on behalf of\nthe Company, or otherwise relate to or restrict Consultant's ability to perform Consultant's duties for the Company or any\nobligation Consultant may have to the Company. Consultant shall not enter into any written or oral agreement that\nconflict with the provisions of this Agreement.\n(c) No Other Consulting Agreements. Consultant represents and warrants that Consultant does\nnot presently perform nor will he perform, during the term of the Agreement, consulting or other services for, or engage in\nor intend to engage in an employment relationship with, companies whose businesses or proposed businesses in any\nway, in the opinion of the Company, involve products or services which would be competitive with the Company's\nproducts or services, orthose products or services proposed or in development by the Company during the term of the\nAgreement or would adversely affect the Consult's ability to perform the Services hereunder. If, however, Consultant\ndesire to perform such services fora third party, Consultantagrees that, in advance ofaccepting such work, Consultant\nwill promptly notify the Company in writing, specifying the organization with which Consultant proposes to consult,\nprovide services, or become employed by and to provide information sufficient to allow the Company to determine if such\nwork would conflict with the terms of this Agreement, including the terms of the Confidentiality Agreement (defined\nbelow), the interests of the Company or further services which the Company might request of Consultant. Ifthe Company\ndetermines, in its so discretion, that such work conflicts with the terms of this Agreement, the Consultant shall not\nundertake such engagements. Nothing herein shall be deemed to release the Consultantwith respectto his obligations\nwith respect to the Confidential Information pursuant to this Agreement.\n(d) Non-Competition and Non-Solicitation and Non-Circumvention.\n(i) Non-Competition. Except as authorized by the Company's Board of Directors, during the\nterm of the Relationship and for a period of twelve (12) months thereafter, the Consultant will not (except as an officer,\ndirector, stockholder, employee, agent or consultant of the Company or any subsidiary or affiliate thereof) either directly\nor indirectly, whether or not for consideration, (i) in any way, directly or indirectly, solicit, divert, ortake away the business\nof any person who is or was a customer ofthe Company, or in any manner influence such person to cease doing\nbusiness in part or in whole with Company; (ii) engage in a Competing Business; or (iii) except for investments or\nownership in public entities, mutual funds and similar investments, none of which constitute more than 5% of the\nownership (provided such ownership interest is acquired solely for investment purposes) or control of such entities, own,\noperate, control, finance, manage, advise, be employed by or engaged by, perform any services for, investor otherwise\nbecome associated in any capacity with any person engaged in a Competing Business; or (iv) engage in any practice the\npurpose or effect of which is to intentionally evade the provisions of this covenant. For purposes of this section,\n“Competing Business” means any company or business which is engaged directly or indirectly in any Company\nBusiness carried on or planned to be carried on (ifsuch plans were developed the term of the Relationship) by the\nCompany; and “Company Business” means the Company's business activities and operations as conducted during the\nterm of the Relationship and all products conceived, planned, researched, developed, tested, manufactured, sold,\nlicensed, leased or otherwise distributed or put into use by the Company, together with all services provided or planned\nby the Company, during your relationship with the Company.\n-10-\n(ii) Non-Solicitation and Non-Circumvention. For a period of twelve (12) months following\nthe termination of the Relationship, the Consultant will not directly or indirectly, whether for your account or for the\naccount of any other individual or entity, solicit or canvas the trade, business or patronage of, or sell to, any individuals or\nentities that were investors, customers or employees of the Company during the term of this Agreement, or prospective\ncustomers with respectto whom a sales effort, presentation or proposal was made by the Company or its affiliates,\nduring the one year period prior to the termination of the Relationship. Without limiting the foregoing, the Consultant shall\nnot, directly or indirectly (i) solicit, induce, enter into any agreement with, or attempt to influence any individual who was\nan employee or consultant of the Company at any time during the term of Relationship, to terminate his or her\nemployment relationship with the Company or to become employed or engaged by the Consultant or any individual or\nentity by which the Consultant are employed orfor which you are acting as a consultant or other advisory capacity,\nand/or (ii) interfere in any other way with the employment, or other relationship, of any employee of, or consultant to, the\nCompany.\n(iii) lniunctive Relief. The Consultant acknowledges and agrees thatthe covenants and\nobligations of the Consultantset forth in this Agreement relate to special, unique and extraordinary Services rendered by\nthe Consultant to the Company and that a violation of any of the terms of such covenants and obligations will cause the\nCompany irreparable injury for which adequate remedies are not available at law. Therefore, the Consultant agrees that\nthe Company shall be entitled to seek an injunction, restraining order or othertemporary or permanent equitable relief\n(without the requirement to post bond) restraining the Consultant from committing any violation of the covenants and\nobligations contained herein. These injunctive remedies are cumulative and are in addition to any other rights and\nremedies the Company may have at law or in equity.\n-11-\n(e) Voluntagy Execution. Consultant certifies and acknowledges that Consultant has carefully read\nall of the provisions of this Agreement, that Consultant understands and has voluntarily accepted such provisions, and\nthat Consultant will fully and faithfully comply with such provisions.\n12. Electronic DeliveEy. Nothing herein is intended to imply a right to participate in any of the\nCompany's equity incentive plans, however, ifConsultantdoes participate in such plan(s), the Company may, in its sole\ndiscretion, decide to deliver any documents related to Consultant's participation in the Company's equity incentive plan(s)\nby electronic means orto requestConsultant's consentto participate in such plan(s) by electronic means. Consultant\nhereby consents to receive such documents by electronic delivery and agrees, ifapplicableto participate in such plan(s)\nthrough an on-line or electronic system established and maintained by the Company or a third party designated by the\nCompany.\n13. Miscellaneous.\n(a) Governing Law. The validity, interpretation, construction and performance of this\nAgreement, and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be\ngoverned, construed and interpreted in accordance with the laws of the state of Nevada, without giving effectto principles\nofconflicts of law. Consultantacknowledges that he may not have the rights and privileges under applicable Nevada law\nthat he might otherwise have underthe applicable laws of the United Kingdom with respect to this Agreement which he\nhereby knowingly and willingly waives.\n(b) Entire Agreement. Except as described in Section 3, this Agreement sets forth the entire\nagreement and understanding between the Company and Consultant relating to its subject matter and merges all prior\ndiscussions between the parties to this Agreement. No amendment to this Agreement will be effective unless in writing\nsigned by both parties to this Agreement. The Company shall not be deemed hereby to have waived any rights or\nremedies it may have in law or equity, norto have given any authorizations or waived any of its rights underthis\nAgreement, unless, and only to the extent, itdoes so by a specific writing signed by a duly authorized officer ofthe\nCompany. Any subsequent change or changes in Consultant's duties, obligations, rights or compensation will notaffect\nthe validity or scope of this Agreement.\n(c) Successors and Assigns. This Agreement will be binding upon Consultant's successors\nand assigns, and will be forthe benefit of the Company, its successors, and its assigns.\n(d) Notices. Any notice, demand or request required or permitted to be given underthis\nAgreement shall be in writing and shall be deemed sufficient when delivered personally or by overnight courier or sent by\nemail, or 48 hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, addressed to\nthe party to be notified atsuch party's address as set forth on the signature page, as subsequently modified by written\nnotice, or if no address is specified on the signature page, atthe most recentaddress setforth in the Company's books\nand records.\n-12-\n \n(e) Severability. If one or more of the provisions in this Agreement are deemed void or\nunenforceable to any extent in any context, such provisions shall nevertheless be enforced to the fullest extent allowed\nby law in that and other contexts, and the validity and force of the remainder of this Agreement shall not be affected. The\nCompany and Consultant have attempted to limitConsultant's rightto use, maintain and disclose the Company's\nConfidential Information, and to limitConsultant's right to solicit employees and customers only to the extent necessary to\nprotect the Company from unfair competition. Should a court of competentjurisdiction determine that the scope of the\ncovenants contained in Section 9 and 11 exceeds the maximum restrictiveness such court deems reasonable and\nenforceable, the parties intend thatthe court should reform, modify and enforce the provision to such narrower scope as\nitdetermines to be reasonable and enforceable underthe circumstances existing atthattime. In the event thatany court\nor government agency of competentjurisdiction determines that, notwithstanding the terms of the Consulting Agreement\nspecifying Consultant's Relationship with the Company as that of an independent contractor, Consultant's provision of\nservices to the Company is notas an independentcontractor but instead as an employee underthe applicable laws, then\nsolely to the extent that such determination is applicable, references in this Agreement to the Relationship between\nConsultant and the Company shall be interpreted to include an employment relationship, and this Agreement shall not be\ninvalid and unenforceable but shall be read to the fullestextentas may be valid and enforceable underthe applicable\nlaws to carry outthe intent and purpose of this Agreement.\n(f) Remedies. Consultant acknowledges that violation of this Agreement by Consultant may\ncause the Company irreparable harm, and therefore Consultant agrees thatthe Company will be entitled to seek\nextraordinary relief in court, including, but not limited to, temporary restraining orders, preliminary injunctions and\npermanent injunctions withoutthe necessity of posting a bond or other security (or, where such a bond or security is\nrequired, that a $1,000 bond will be adequate), in addition to and without prejudice to any other rights or remedies that\nthe Company may have for a breach of this Agreement.\n(g) Advice ofCounsel. Consultantacknowledges THAT, IN EXECUTING THIS AGREEMENT,\nConsultantHas HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND\nConsultant Has read and understands ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS\nAGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR\nPREPARATION HEREOF.\n(h) Counterparts. This Agreement may be executed in any number of counterparts, each of\nwhich when so executed and delivered shall be deemed an original, and all of which together shall constitute one and the\nsame agreement. Execution ofa facsimile or scanned copy will have the same force and effectas execution ofan\noriginal, and a facsimile or scanned signature will be deemed an original and valid signature.\n-13-\n(i) Effective Date. Regardless of the date on which this Agreement is executed by the parties\nhereto, the effective date of this Agreement is] une 1, 2019.\n[Signature Page Follows]\n-14-\nSIGNATURES\nThe parties have executed this Confidential Information and Invention AssignmentAgreement on the respective dates set\nforth below, to be effective as of the Effective Date first above written.\nthe company:\nrenovacare, Inc.\nBy: /s/ Harmel S. Ra at ________________________\n(Signature)\nName: Harmel S. Rayat\nTitle: Chief Executive Officer\nAddress:\nRenovaCare, Inc.\n9375 East Shea Blvd.,\nSuite 107-A\nScottsdale, AZ 85260\nAttention: Harmel S. Rayat\nFacsimile: 604-336-8609\nEmail Address: hsr@ renovacareinc.com\nCONSULTANT:\nRoger Esteban-Vives\n(Print Name)\n/s/ Ro er E steban-Vives _________________________\n(Signature)\nAddress:\nRoger E steban_Viives\nFlat 1, 3 Recovery St.\nLondon, SW170DL, United Kingdom\n-15-	EXHIBIT D\nTO THE RENOVACARE, INC.- ROGER ESTEBAN-VIVES\nCONSULTING AGREEMENT\nDATED\nUNE 4, 2019\n*kk\nConfidential information and\ninvention assignment agreement\nRENOVACARE, INC.\nCONFIDENTIAL INFORMATION AND\nINVENTION ASSIGNMENT AGREEMENT\nConfidentia Information and Invention Assignment Agreement is dated as of J une 4, 2019 by and between\nRenovaCare Inc., a Nevada corporation (the "RCAR"), and Roger Esteban-Vives, an individual having his place of\nbusiness in London, England ("Consultant").\nAs a condition of becoming retained (or Consultant's consulting relationship being continued) by RCAR, or any of\nits current or future subsidiaries, affiliates, successors or assigns (collectively, the "Company"), and in consideration\nof\nConsultant's consulting relationship with the Company and receipt of the compensation now and hereafter paid by the\nCompany, the receipt of Confidential Information (as defined below) while associated with the Company, and other good\nand valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Consultant hereby agrees to\nthe following:\n1.\nRelationship. This Confidentia Information and Invention Assignment Agreement (this\n"Agreement") will apply to Consultant's consulting relationship with the Company. If that relationship ends and the\nCompany, within one (1) year thereafter, either employs Consultant or re-engages Consultant as a consultant, this\nAgreement will also apply to such later employment or consulting relationship, unless the parties hereto otherwise agree\nin writing. Any employment or consulting relationship between the parties hereto, whether commenced prior to, upon or\nafter the date of this Agreement, is referred to herein as the "Relationship."\n-2-\n2.\nApplicability to Past Activities. The Company and Consultant acknowledge that Consultant may\nhave performed work, activities, services or made efforts on behalf of or for the benefit of the Company, or related to the\ncurrent or prospective business of the Company in anticipation of Consultant's involvement with the Company, that would\nhave been "Services" if performed during the term of this Agreement, for a period of time prior to the Effective Date of this\nAgreement (the "Prior Consulting Period"). Accordingly, if and to the extent that, during the rior Consulting Period: (i)\nConsultant received access to any information from or on behalf of the Company that would have been Confidentia\nInformation (as defined below) if Consultant received access to such information during the term of this Agreement; or (ii)\nConsultant (a) conceived, created, authored, invented, developed or reduced to practice any item (including any\nintellectual property rights with respect thereto) on behalf of or for the benefit of the Company, or related to the current or\nprospective business of the Company in anticipation of Consultant's involvement with the Company, that would have\nbeen an Invention (as defined below) if conceived, created, authored, invented, developed or reduced to practice during\nthe term of this Agreement; or (b) incorporated into any such item any pre-existing invention, improvement, development,\nconcept, discovery or other proprietary information that would have been a rior Invention (as defined below) if\nincorporated into such item during the term of this Agreement; then any such information shall be deemed "Confidential\nInformation" hereunder and any such item shall be deemed an "Invention" or "Prior Invention" hereunder, and\nthis\nAgreement shall apply to such activities, information or item as if disclosed, conceived, created, authored, invented,\ndeveloped or reduced to practice during the term of this Agreement.\n3.\nExecutive Services Consulting Agreement. Consultant has entered into an agreement with the\nCompany on or about the date hereof to provide various services to the Company (the "Consulting Agreement"). The\nservices rendered by Consultant under the Consulting Agreement are referred to herein as the "Services" and this\nAgreement is intended to supplement and form an integral part of the Consulting Agreement.\n4.\nConfidential Information.\n(a)\nProtection of Information. Consultant understands that during the Relationship, the\nCompany intends to provide Consultant with certain information, including Confidential Information (as defined below),\nwithout which C onsultant would not be able to perform Consultant's duties to the Company. At all times during the term of\nthe Relationship and thereafter, Consultant shall hold in strictest confidence, and not use, except for the benefit of the\nCompany to the extent necessary to perform the Services, and not disclose to any person, firm, corporation or other\nentity, without written authorization from the Company in each instance, any Confidential Information that Consultant\nobtains from the Company or otherwise obtains, accesses or creates in connection with, or as a result of, the Services\nduring the term of the Relationship, whether or not during working hours, until such Confidentia Information becomes\npublicly and widely known and made generally available through no wrongful act of Consultant or of others who were\nunder confidentiality obligations as to the item or items involved. Consultant shall not make copies of such Confidentia\nInformation except as authorized by the Company or in the ordinary course of the provision of Services.\n-3-\n(b)\nConfidential Information. Consultant understands that "Confidential Information" means\nany and all information and physical manifestations thereof not generally known or available outside the Company and\ninformation and physical manifestations thereof entrusted to the Company in confidence by third parties, whether or not\nsuch information is patentable, copyrightable or otherwise legally protectable. Confidential Information includes, without\nlimitation: (i) Company Inventions (as defined below); and (ii) technical data, trade secrets, know-how, research, product\nor service ideas or plans, software codes and designs, algorithms, developments, inventions, patent applications,\nlaboratory notebooks, processes, formulas, techniques, biological materials, mask works, engineering designs and\ndrawings, hardware configuration information, agreements with third parties, lists of, or information relating to, employees\nand consultants of the Company (including, but not limited to, the names, contact information, jobs, compensation, and\nexpertise of such employees and consultants), lists of, or information relating to, suppliers and customers (including, but\nnot limited to, customers of the Company on whom Consultant called or with whom Consultant became acquainted\nduring the Relationship), price lists, pricing methodologies, cost data, market share data, marketing plans, licenses,\ncontract information, business plans, financial forecasts, historical financial data, budgets or other business information\ndisclosed to Consultant by the Company either directly or indirectly, whether in writing, electronically, orally, or by\nobservation.\nThe Consultant understands that the above list is not exhaustive, and that Confidential Information also includes\nother information that is marked or otherwise identified as confidential or proprietary, or that would otherwise appear to a\nreasonable person to be confidential or proprietary in the context and circumstances in which the information is known or\nused. The Consultant understands and agrees that Confidentia Information developed by him or her in the course of his\nengagement with the Company shall be subject to the terms and conditions of this Agreement as if the Company\nfurnished the same Confidential Information to the Consultant in the first instance. Confidential Information shall not\ninclude information that is generally available to and known by the public, provided that such disclosure to the public is\nthrough no direct or indirect fault of the Consultant or person(s) acting on the Consultant's behalf.\n(c)\nThird Party Information. Consultant's agreements in this Section 4 are intended to be for\nthe benefit of the Company and any third party that has entrusted information or physical material to the Company in\nconfidence. During the term of the Relationship and thereafter, Consultant will not improperly use or disclose to the\nCompany any confidential, proprietary or secret information of Consultant's former clients or any other person, and\nConsultant will not bring any such information onto the Company's property or place of business.\n(d)\nOther Rights This Agreement is intended to supplement and not to supersede, any rights\nthe Company may have in law or equity with respect to the protection of trade secrets or confidential or proprietary\ninformation.\n(e)\nU.S. Defend Trade Secrets Act. Notwithstanding the foregoing, the U.S. Defend Trade\nSecrets Act of 2016 ("DTSA") provides that an individual shall not be held criminally or civilly liable under any federal or\nstate trade secret law for the disclosure of a trade secret that is made (i) in confidence to a federal, state, or local\ngovernment official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or\ninvestigating a suspected violation of law; or (iii) in a complaint or other document filed in a lawsuit or other proceeding, if\nsuch filing is made under seal In addition, DTSA provides that an individual who files a lawsuit for retaliation by an\nemployer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use\nthe trade secret information in the court proceeding, if the individua (A) files any document containing the trade secret\nunder seal; and (B) does not disclose the trade secret, except pursuant to court order.\n-4-\n(f)\nDisclosure Required by Law. Nothing herein shall be construed to prevent disclosure of\nConfidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of\ncompetent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of\ndisclosure required by such law, regulation or order. The Consultant shall provide written notice of any such order to the\nCompany's Chief Executive Officer or Chief Operating Officer within forty-eight (48) hours of receiving such order, but in\nany event sufficiently in advance of making any disclosure to permit the Company to contest the order or seek\nconfidentiality protections, as determined in the Company's sole discretion.\n5.\nOwnership of Inventions.\n(a)\nInventions Retained and Licensed. Consultant has attached hereto, as Exhibit a\ncomplete list describing with particularity all Inventions (as defined below) that, as of the Effective Date: (i) have been\ncreated by or on behalf of Consultant, and/or (ii) are owned exclusively by Consultant or jointly by Consultant with others\nor in which Consultant has an interest, and that relate in any way to any of the Company's actual or proposed\nbusinesses, products, services, or research and development, and which are not assigned to the Company hereunder\n(collectively "Prior Inventions"); or, if no such list is attached, Consultant represents and warrants that there are no such\nInventions at the time of signing this Agreement, and to the extent such Inventions do exist and are not listed on\nExhibit Consultant hereby forever waives any and all rights or claims of ownership to such Inventions. Consultant\nunderstands that Consultant's listing of any Inventions on Exhibit A does not constitute an acknowledgement by the\nCompany of the existence or extent of such Inventions, nor of Consultant's ownership of such Inventions.\n(b)\nUse or Incorporation of Inventions. Consultant shall not use, disclose or disseminate any\nof the Company's Confidential Information except as specifically permitted in this Section 5. Consultant may use the\nConfidential Information of the Company solely to perform his obligations under this Agreement for the benefit of the\nCompany. Consultant will exercise the same degree of care as it takes to protect his own confidential information, but in\nno event less than reasonable care. The Consultant may not incorporate any Inventions into any business, venture,\nacademic, other pursuit that Consultant may engage in during or following the termination of the Relationship. If in the\ncourse of the Relationship, Consultant uses or incorporates into any of the Company's products, services, processes or\nmachines any Invention not assigned to the Company pursuant to Section 5(d) of this Agreement in which Consultant\nhas an interest, Consultant will promptly so inform the Company in writing. Whether or not Consultant gives such notice,\nConsultant hereby irrevocably grants to the Company a nonexclusive, fully paid-up, royalty-free, assumable, perpetual,\nworldwide license, with right to transfer and to sublicense, to practice and exploit such Invention and to make, have\nmade, copy, modify, make derivative works of, use, sell, import, and otherwise distribute such Invention under all\napplicable intellectual property laws without restriction of any kind. The Consultant may not incorporate any Inventions\ninto any business, venture, academic, other pursuit that Consultant may engage in during or following the termination of\nthe Relationship.\n-5-\n(c)\nInventions. Consultant understands that "Inventions" means discoveries, developments,\nconcepts, designs, ideas, know how, modifications, improvements, derivative works, inventions trade secrets and/or\noriginal works of authorship, whether or not patentable, copyrightable or otherwise legally protectable. Consultant\nunderstands this includes, but is not limited to, any new product, machine, article of manufacture, biological material,\nmethod, procedure, process, technique, use, equipment, device, apparatus, system, compound, formulation, composition\nof matter, design or configuration of any kind, or any improvement thereon. Consultant understands that "Company\nInventions" means any and all Inventions that Consultant or Consultant's personnel may solely or jointly author,\ndiscover, develop, conceive, or reduce to practice in connection with, or as a result of, the Services performed for the\nCompany or otherwise in connection with the Relationship, except as otherwise provided in Section 5(i) below.\n(d)\nAssignment of Company Inventions. Consultant will promptly make full written disclosure\nto the Company, will hold in trust for the sole right and benefit of the Company, and hereby assigns to the Company, or\nits designee, all of Consultant's right, title and interest throughout the world in and to any and all Company Inventions and\nall patent, copyright, trademark, trade secret and other intellectua property rights and other proprietary rights therein.\nConsultant hereby waives and irrevocably quitclaims to the Company or its designee any and all claims, of any nature\nwhatsoever, that Consultant now has or may hereafter have for infringement of any and all Company Inventions. Any\nassignment of Company Inventions includes all rights of attribution, paternity, integrity, modification, disclosure and\nwithdrawal, and any other rights throughout the world that may be known as or referred to as "moral rights," "artist's\nrights," "droit moral," or the like (collectively, "Moral Rights") To the extent that Moral Rights cannot be assigned under\napplicable law, Consultant hereby waives and agrees not to enforce any and all Moral Rights, including, without\nlimitation, any limitation on subsequent modification, to the extent permitted under applicable law. If Consultant has any\nrights to the Company Inventions, other than Moral Rights, that cannot be assigned to the Company, Consultant hereby\nunconditionally and irrevocably grants to the Company during the term of such rights, an exclusive, irrevocable,\nperpetual, worldwide, fully paid and royalty-free license, with rights to sublicense through multiple levels of sublicensees,\nto reproduce, distribute, display, perform, prepare derivative works of and otherwise modify, make, have made, sell, offer\nto sell, import, practice methods, processes and procedures and otherwise use and exploit, such Company Inventions.\n-6-\n(e)\nWork for Hire. The Consultant agrees that all marketing, operating and training ideas,\nsourcing data, processes and materials, including all inventions, discoveries, improvements, enhancements, written\nmaterials and development related to the business of the Company ("Proprietary Materials") to which the Consultant\nmay have access or that the Consultant may develop or conceive while employed by the Company shall be considered\nworks made for hire for the Company and prepared within the scope of employment and shall belong exclusively to the\nCompany. Any Proprietary Materials developed by the Consultant that, under applicable law, may not be considered\nworks made for hire, are hereby assigned to the Company without the need for any further consideration, and the\nConsultant agrees to take such further action, including executing such instruments and documents as the Company may\nreasonably request, to evidence such assignment.\n(f)\nNo License. The Consultant understands that this Agreement does not, and shall not be\nconstrued to, grant the Consultant any license or right of any nature with respect to any roprietary Materials, Moral\nRights, any Confidentia Information, materials, software or other tools made available to him or her by the Company, or\nother intellectual property rights relating thereto.\n(g)\nMaintenance of Records. Consultant shall keep and maintain adequate and current written\nrecords of all Company Inventions made or conceived by Consultant or Consultant's personne (solely or jointly with\nothers) during the term of the Relationship. The records may be in the form of notes, sketches, drawings, flow charts,\nelectronic data or recordings, laboratory notebooks, or any other format. The records will be available to and remain the\nsole property of the Company at all times. Consultant shall not remove such records from the Company's place of\nbusiness or systems except as expressly permitted by Company policy which may, from time to time, be revised at the\nsole election of the Company for the purpose of furthering the Company's business. Consultant shall deliver all such\nrecords (including any copies thereof) to the Company at the time of termination of the Relationship as provided for in\nSection 6 and Section 7.\n(h)\nIntellectual Property Rights. Consultant shall assist the Company, or its designee, at its\nexpense, in every proper way in securing the Company's, or its designee's, rights in the Company Inventions and any\ncopyrights, patents, trademarks, mask work rights, Moral Rights, or other intellectual property rights relating thereto in\nany and all countries, including the disclosure to the Company or its designee of all pertinent information and data with\nrespect thereto, the execution of all applications, specifications, oaths, assignments, recordations, and all other\ninstruments which the Company or its designee shall deem necessary in order to apply for, obtain, maintain and transfer\nsuch rights, or if not transferable, waive and shal never assert such rights, and in order to assign and convey to the\nCompany or its designee, and any successors, assigns and nominees the sole and exclusive right, title and interest in\nand to such Company Inventions, and any copyrights, patents, mask work rights or other intellectual property rights\nrelating thereto. Consultant's obligation to execute or cause to be executed, when it is in Consultant's power to do so,\nany such instrument or papers shall continue during and at all times after the end of the Relationship and until the\nexpiration of the last such intellectual property right to expire in any country of the world. Consultant hereby irrevocably\ndesignates and appoints the Company and its duly authorized officers and agents as Consultant's agent and\nattorney-in-fact to act for and in Consultant's behalf and stead to execute and file any such instruments and papers and\nto do all other lawfully permitted acts to further the application for, prosecution, issuance, maintenance or transfer of\nletters patent, copyright, mask work and other registrations related to such Company Inventions. This power of attorney is\ncoupled with an interest and shall not be affected by Consultant's subsequent incapacity.\n-7-\n(i)\nException to Assignments. ubject to the requirements of applicable state law, if any,\nexempting certain Company Inventions, from the assignment provisions of this Agreement Consultant understands that\nall Company Inventions must be, and are, assigned to the Company pursuant to this Agreement In order to assist in the\ndetermination of which inventions qualify for such state law exclusion, Consultant will advise the Company promptly in\nwriting, during and for a period of forty-eight (48) months immediately following the termination of the Relationship, of all\nInventions solely or jointly conceived or developed or reduced to practice by Consultant or Consultant's personnel during\nthe period of the elationship.\n6.\nCompany Property; Returning Company Documents. Consultant acknowledges that Consultant\nhas no expectation of privacy with respect to the Company's telecommunications, networking or information processing\nsystems (including, without limitation, files, e-mail messages, and voice messages) and that C onsultant's activity and any\nfiles or messages on or using any of those systems may be monitored or reviewed at any time without notice. Consultant\nfurther acknowledges that any property situated on the Company's premises or systems and owned by the Company,\nincluding disks and other storage media, filing cabinets or other work areas, is subject to inspection by Company\npersonnel at any time with or without notice. At the time of termination of the Relationship, Consultant will deliver to the\nCompany (and will not keep in Consultant's possession, recreate or deliver to anyone else) any and all devices, records,\ndata, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, laboratory\nnotebooks, materials, flow charts, equipment, other documents or property, or reproductions of any of the\naforementioned items developed by Consultant or Consultant's personnel pursuant to the Relationship or otherwise\nbelonging to the Company, its successors or assigns.\n7.\nTermination Certification. In the event of the termination of the Relationship, Consultant shall sign\nand deliver the "Termination Certification" attached hereto as Exhibit B; however, Consultant's failure to sign and\ndeliver the Termination Certification shall in no way diminish Consultant's continuing obligations under this Agreement.\n8.\nNotice to Third Parties. During the periods of time during which Consultant is restricted in taking\ncertain actions by the terms of Section 9 of this Agreement (the "Restriction Period") Consultant shall inform any entity\nor person with whom Consultant may seek to enter into a business relationship (whether as an owner, employee,\nindependent contractor or otherwise) of Consultant's contractua obligations under this Agreement. Consultant\nacknowledges that the Company may, with or without prior notice to Consultant and whether during or after the term of\nthe Relationship, notify third parties of Consultant's agreements and obligations under this Agreement. Upon written\nrequest by the Company, Consultant will respond to the Company in writing regarding the status of Consultant's\nengagement or proposed engagement with any party during the Restriction Period.\n-8-\n9.\nSolicitation of Employees, Consultants and Other Parties. As described above, Consultant\nacknowledges that the Company's Confidential Information includes information relating to the Company's employees,\nconsultants, customers and others, and Consultant will not use or disclose such Confidential Information except as\nauthorized by the Company in advance in writing. Consultant further agrees as follows:\n(a)\nEmployees, Consultants. During the term of the Relationship, and for a period of twelve\n(12) months immediately following the termination of the Relationship for any reason, whether with or without cause,\nConsultant shall not, directly or indirectly, solicit any of the Company's employees or consultants to terminate their\nrelationship with the Company, or attempt to solicit employees or consultants of the Company, either for Consultant or for\nany other person or entity.\n(b)\nOther Parties. During the term of the Relationship, Consultant will not influence any of the\nCompany's clients, licensors, licensees or customers from purchasing Company products or services or solicit or\ninfluence or attempt to influence any client, licensor, licensee, customer or other person either directly or indirectly, to\ndirect any purchase of products and/or services to any person, firm, corporation, institution or other entity in competition\nwith the business of the Company.\n10.\nNo Change to Duration of Relationship Consultant understands and acknowledges that this\nAgreement does not alter, amend or expand upon any rights Consultant may have to continue in the consulting\nrelationship with, or in the duration of Consultant's consulting relationship with, the Company under any existing\nagreements between the Company and Consultant, including without limitation the Consulting Agreement, or under\napplicable law.\n11.\nRepresentations and Covenants.\n(a)\nFacilitation of Agrement. Consultant shall execute promptly, both during and after the end of the\nRelationship, any proper oath, and to verify any proper document, required to carry out the terms of this Agreement upon\nthe Company's written request to do so.\n(b)\nNo Conflicts. Consultant represents and warrants that Consultant's performance of all the terms\nof this Agreement does not and will not breach any agreement Consultant has entered into, or will enter into, with any\nthird\nparty,\nincluding without limitation any agreement to keep in confidence proprietary information or materials acquired\nby Consultant in confidence or in trust prior to or during the Relationship. Consultant will not disclose to the Company or\nuse any inventions, confidential or non-public proprietary information or material belonging to any previous client,\nemployer or any other party. Consultant will not induce the Company to use any inventions, confidential or non-public\nproprietary information, or material belonging to any previous client, employer or any other party. Consultant represents\nand warrants that Consultant has listed on Exhibit C all agreements (e.g., non-competition agreements, non-solicitation\nof customers agreements, non-solicitation of employees agreements, confidentiality agreements, inventions agreements,\netc.), if any, with a current or former client, employer, or any other person or entity, that may restrict Consultant's\nability\nto\nperform services for the Company or Consultant's ability to recruit or engage customers or service providers on behalf of\nthe Company, or otherwise relate to or restrict Consultant's ability to perform Consultant's duties for the Company or any\nobligation Consultant may have to the Company. Consultant shall not enter into any written or oral agreement that\nconflicts with the provisions of this Agreement.\n-9-\n(c)\nNo Other Consulting Agreements. Consultant represents and warrants that Consultant does\nnot presently perform nor will he perform, during the term of the Agreement, consulting or other services for, or engage in\nor intend to engage in an employment relationship with, companies whose businesses or proposed businesses in any\nway, in the opinion of the Company, involve products or services which would be competitive with the Company's\nproducts or services, or those products or services proposed or in development by the Company during the term of the\nAgreement or would adversely affect the Consult's ability to perform the Services hereunder. If, however, Consultant\ndesire to perform such services for a third party, Consultant agrees that, in advance of accepting such work, Consultant\nwill promptly notify the Company in writing, specifying the organization with which Consultant proposes to consult,\nprovide services, or become employed by and to provide information sufficient to allow the Company to determine if such\nwork would conflict with the terms of this Agreement, including the terms of the Confidentiality Agreement (defined\nbelow), the interests of the Company or further services which the Company might request of Consultant. If the Company\ndetermines, in its so discretion, that such work conflicts with the terms of this Agreement, the Consultant shall not\nundertake such engagements. Nothing herein shall be deemed to release the Consultant with respect to his obligations\nwith respect to the Confidential Information pursuant to this Agreement.\n(d)\nNon-Competition and Non-Solicitation and Non-Circumvention.\n(i)\nNon-Competition. Except as authorized by the Company's Board of Directors, during the\nterm of the Relationship and for a period of twelve (12) months thereafter, the Consultant will not (except as an officer,\ndirector, stockholder, employee, agent or consultant of the Company or any subsidiary or affiliate thereof) either directly\nor indirectly, whether or not for consideration, (i) in any way, directly or indirectly, solicit, divert, or take away the business\nof\nany person who is or was a customer of the Company, or in any manner influence such person to cease doing\nbusiness in part or in whole with Company; (ii) engage in a Competing Business; or (iii) except for investments or\nownership in public entities, mutual funds and similar investments, none of which constitute more than 5% of the\nownership (provided such ownership interest is acquired solely for investment purposes) or control of such entities, own,\noperate, control, finance, manage, advise, be employed by or engaged by, perform any services for, invest or otherwise\nbecome associated in any capacity with any person engaged in a Competing Business; or (iv) engage in any practice the\npurpose or effect of which is to intentionally evade the provisions of this covenant. For purposes of this section,\n"Competing Business" means any company or business which is engaged directly or indirectly in any Company\nBusiness carried on or planned to be carried on (if such plans were developed the term of the Relationship) by the\nCompany; and "Company Business" means the Company's business activities and operations as conducted during the\nterm of the Relationship and all products conceived, planned, researched, developed, tested, manufactured, sold,\nlicensed, leased or otherwise distributed or put into use by the Company, together with all services provided or planned\nby the Company, during your relationship with the Company.\n-10-\n(ii)\nNon-Solicitation and Non-Circumvention. F or a period of twelve (12) months following\nthe termination of the Relationship, the Consultant wil not directly or indirectly, whether for your account or for the\naccount of any other individual or entity, solicit or canvas the trade, business or patronage of, or sell to, any individuals or\nentities that were investors, customers or employees of the Company during the term of this Agreement, or prospective\ncustomers with respect to whom a sales effort presentation or proposal was made by the Company or its affiliates,\nduring the one year period prior to the termination of the Relationship Without limiting the foregoing, the Consultant shall\nnot, directly or indirectly (i) solicit, induce, enter into any agreement with, or attempt to influence any individual who was\nan employee or consultant of the Company at any time during the term of Relationship, to terminate his or her\nemployment relationship with the Company or to become employed or engaged by the Consultant or any individual or\nentity by which the Consultant are employed or for which you are acting as a consultant or other advisory capacity,\nand/or (ii) interfere in any other way with the employment, or other relationship, of any employee of, or consultant to, the\nCompany.\n(iii\nInjunctive Relief. The Consultant acknowledges and agrees that the covenants and\nobligations of the Consultant set forth in this Agreement relate to special, unique and extraordinary Services rendered by\nthe Consultant to the Company and that a violation of any of the terms of such covenants and obligations will cause the\nCompany irreparable injury for which adequate remedies are not available at law. Therefore, the Consultant agrees that\nthe Company shall be entitled to seek an injunction, restraining order or other temporary or permanent equitable relief\n(without the requirement to post bond) restraining the Consultant from committing any violation of the covenants and\nobligations contained herein. These injunctive remedies are cumulative and are in addition to any other rights and\nremedies the Company may have at law or in equity.\n-11-\n(e)\nVoluntary Execution. Consultant certifies and acknowledges that Consultant has carefully read\nall of the provisions of this Agreement, that Consultant understands and has voluntarily accepted such provisions, and\nthat Consultant will fully and faithfully comply with such provisions.\n12.\nElectronic Delivery. Nothing herein is intended to imply a right to participate in any of the\nCompany's equity incentive plans, however, if Consultant does participate in such plan(s), the Company may, in its sole\ndiscretion, decide to deliver any documents related to Consultant's participation in the Company's equity incentive plan(s)\nby electronic means or to request Consultant's consent to participate in such plan(s) by electronic means. Consultant\nhereby consents to receive such documents by electronic delivery and agrees, if applicableto participate in such plan(s)\nthrough an on-line or electronic system established and maintained by the Company or a third party designated by the\nCompany.\n13.\nMiscellaneous.\n(a)\nGoverning Law. The validity, interpretation, construction and performance of this\nAgreement, and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be\ngoverned, construed and interpreted in accordance with the laws of the state of Nevada, without giving effect to principles\nof conflicts of law. Consultant acknowledges that he may not have the rights and privileges under applicable Nevada law\nthat he might otherwise have under the applicable laws of the United Kingdom with respect to this Agreement which he\nhereby knowingly and willingly waives.\n(b)\nEntire Agreement. Except as described in Section 3, this Agreement sets forth the entire\nagreement and understanding between the Company and Consultant relating to its subject matter and merges all prior\ndiscussions between the parties to this Agreement No amendment to this Agreement will be effective unless in writing\nsigned by both parties to this Agreement The Company shall not be deemed hereby to have waived any rights or\nremedies it may have in law or equity, nor to have given any authorizations or waived any of its rights under this\nAgreement, unless, and only to the extent, it does so by a specific writing signed by a duly authorized officer of the\nCompany. Any subsequent change or changes in Consultant's duties, obligations, rights or compensation will not affect\nthe validity or scope of this Agreement.\n(c)\nSuccessors and Assigns. This Agreement will be binding upon Consultant's successors\nand assigns, and will be for the benefit of the Company, its successors, and its assigns.\n(d)\nNotices. Any notice, demand or request required or permitted to be given under this\nAgreement shall be in writing and shall be deemed sufficient when delivered personally or by overnight courier or sent by\nemail, or 48 hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, addressed to\nthe party to be notified at such party's address as set forth on the signature page, as subsequently modified by written\nnotice, or if no address is specified on the signature page, at the most recent address set forth in the Company's books\nand records.\n-12-\n(e)\nSeverability. If one or more of the provisions in this Agreement are deemed void or\nunenforceable to any extent in any context, such provisions shall nevertheless be enforced to the fullest extent allowed\nby law in that and other contexts, and the validity and force of the remainder of this Agreement shall not be affected. The\nCompany and Consultant have attempted to limit Consultant's right to use, maintain and disclose the Company's\nConfidential Information and to limit Consultant's right to solicit employees and customers only to the extent necessary to\nprotect the Company from unfair competition. Should a court of competent jurisdiction determine that the scope of the\ncovenants contained in Section 9 and 11 exceeds the maximum restrictiveness such court deems reasonable and\nenforceable, the parties intend that the court should reform, modify and enforce the provision to such narrower scope\nas\nit determines to be reasonable and enforceable under the circumstances existing at that time. In the event that any court\nor government agency of competent jurisdiction determines that, notwithstanding the terms of the Consulting Agreement\nspecifying Consultant's Relationship with the Company as that of an independent contractor, Consultant's provision of\nservices to the Company is not as an independent contractor but instead as an employee under the applicable laws, then\nsolely to the extent that such determination is applicable, references in this Agreement to the Relationship between\nConsultant and the Company shall be interpreted to include an employment relationship, and this Agreement shall not be\ninvalid and unenforceable but shall be read to the fullest extent as may be valid and enforceable under the applicable\nlaws to carry out the intent and purpose of this Agreement.\n(f)\nRemedies. Consultant acknowledges that violation of this Agreement by Consultant may\ncause the Company irreparable harm, and therefore Consultant agrees that the Company will be entitled to seek\nextraordinary relief in court including, but not limited to, temporary restraining orders, preliminary injunctions and\npermanent injunctions without the necessity of posting a bond or other security (or, where such a bond or security is\nrequired, that a $1,000 bond will be adequate) in addition to and without prejudice to any other rights or remedies that\nthe Company may have for a breach of this Agreement.\n(g)\nAdvice of Counsel. Consultant acknowledges THAT, IN EXECUTING THIS AGREEMENT,\nConsultant Has HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND\nConsultant Has read and understands ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS\nAGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR\nPREPARATION HEREOF.\n(h)\nCounterparts. This Agreement may be executed in any number of counterparts, each of\nwhich when so executed and delivered shall be deemed an original, and all of which together shall constitute one and the\nsame agreement. Execution of a facsimile or scanned copy will have the same force and effect as execution of an\noriginal, and a facsimile or scanned signature wil be deemed an original and valid signature.\n-13-\n(i)\nEffective Date. Regardless of the date on which this Agreement is executed by the parties\nhereto, the effective date of this Agreement is J une 1, 2019.\n[Signature Page Follows]\n-14-\nSIGNATURES\nThe parties have executed this Confidential Information and Invention Assignment Agreement on the respective dates set\nforth below, to be effective as of the Effective Date first above written.\nthe company:\nrenovacare, Inc.\nBy: /s/ Harme S. Rayat\n(Signature)\nName: Harmel S. Rayat\nTitle: Chief Executive Officer\nAddress:\nRenovaCare Inc.\n9375 East Shea Blvd.,\nSuite 107-A\nScottsdale, AZ 85260\nAttention: Harmel S. Rayat\nFacsimile: 604-336-8609\nEmail Address: hsr@ renovacareinc.com\nCONSULTANT:\nRoger Esteban-Vives\n(Print Name)\n/s/ Roger Esteban-Vives\n(Signature)\nAddress:\nRoger Esteban_Viives\nFlat 1, 3 Recovery St.\nLondon, SW170DL, United Kingdom\nEmail:\nFacsimile:\n42	EXHIBIT D\nTO THE RENOVACARE, INC.— ROGER ESTEBAN-VIVES\nCONSULTING AGREEMENT\nDATED\nJUNE 4, 2019\n****\nConfidential information and\ninvention assignment agreement\nRENOVACARE, INC.\nCONFIDENTIAL INFORMATION AND\nINVENTION ASSIGNMENT AGREEMENT\nConfidential Information and Invention Assignment Agreement is dated as of June 4, 2019 by and between\nRenovaCare, Inc., a Nevada corporation (the “RCAR”), and Roger Esteban-Vives, an individual having his place of\nbusiness in London, England (“Consultant”).\nAs a condition of becoming retained (or Consultant’s consulting relationship being continued) by RCAR, or any of\nits current or future subsidiaries, affiliates, successors or assigns (collectively, the “Company”), and in consideration of\nConsultant’s consulting relationship with the Company and receipt of the compensation now and hereafter paid by the\nCompany, the receipt of Confidential Information (as defined below) while associated with the Company, and other good\nand valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Consultant hereby agrees to\nthe following:\n1.\nRelationship. This Confidential Information and Invention Assignment Agreement (this\n“Agreement”) will apply to Consultant’s consulting relationship with the Company. If that relationship ends and the\nCompany, within one (1) year thereafter, either employs Consultant or re-engages Consultant as a consultant, this\nAgreement will also apply to such later employment or consulting relationship, unless the parties hereto otherwise agree\nin writing. Any employment or consulting relationship between the parties hereto, whether commenced prior to, upon or\nafter the date of this Agreement, is referred to herein as the “Relationship.”\n-2-\n2.\nApplicability to Past Activities. The Company and Consultant acknowledge that Consultant may\nhave performed work, activities, services or made efforts on behalf of or for the benefit of the Company, or related to the\ncurrent or prospective business of the Company in anticipation of Consultant’s involvement with the Company, that would\nhave been “Services” if performed during the term of this Agreement, for a period of time prior to the Effective Date of this\nAgreement (the “Prior Consulting Period”). Accordingly, if and to the extent that, during the Prior Consulting Period: (i)\nConsultant received access to any information from or on behalf of the Company that would have been Confidential\nInformation (as defined below) if Consultant received access to such information during the term of this Agreement; or (ii)\nConsultant (a) conceived, created, authored, invented, developed or reduced to practice any item (including any\nintellectual property rights with respect thereto) on behalf of or for the benefit of the Company, or related to the current or\nprospective business of the Company in anticipation of Consultant’s involvement with the Company, that would have\nbeen an Invention (as defined below) if conceived, created, authored, invented, developed or reduced to practice during\nthe term of this Agreement; or (b) incorporated into any such item any pre-existing invention, improvement, development,\nconcept, discovery or other proprietary information that would have been a Prior Invention (as defined below) if\nincorporated into such item during the term of this Agreement; then any such information shall be deemed “Confidential\nInformation” hereunder and any such item shall be deemed an “Invention” or “Prior Invention” hereunder, and this\nAgreement shall apply to such activities, information or item as if disclosed, conceived, created, authored, invented,\ndeveloped or reduced to practice during the term of this Agreement.\n3.\nExecutive Services Consulting Agreement. Consultant has entered into an agreement with the\nCompany on or about the date hereof to provide various services to the Company (the “Consulting Agreement”). The\nservices rendered by Consultant under the Consulting Agreement are referred to herein as the “Services” and this\nAgreement is intended to supplement and form an integral part of the Consulting Agreement.\n4.\nConfidential Information.\n(a)\nProtection of Information. Consultant understands that during the Relationship, the\nCompany intends to provide Consultant with certain information, including Confidential Information (as defined below),\nwithout which Consultant would not be able to perform Consultant’s duties to the Company. At all times during the term of\nthe Relationship and thereafter, Consultant shall hold in strictest confidence, and not use, except for the benefit of the\nCompany to the extent necessary to perform the Services, and not disclose to any person, firm, corporation or other\nentity, without written authorization from the Company in each instance, any Confidential Information that Consultant\nobtains from the Company or otherwise obtains, accesses or creates in connection with, or as a result of, the Services\nduring the term of the Relationship, whether or not during working hours, until such Confidential Information becomes\npublicly and widely known and made generally available through no wrongful act of Consultant or of others who were\nunder confidentiality obligations as to the item or items involved. Consultant shall not make copies of such Confidential\nInformation except as authorized by the Company or in the ordinary course of the provision of Services.\n-3-\n(b)\nConfidential Information. Consultant understands that “Confidential Information” means\nany and all information and physical manifestations thereof not generally known or available outside the Company and\ninformation and physical manifestations thereof entrusted to the Company in confidence by third parties, whether or not\nsuch information is patentable, copyrightable or otherwise legally protectable. Confidential Information includes, without\nlimitation: (i) Company Inventions (as defined below); and (ii) technical data, trade secrets, know-how, research, product\nor service ideas or plans, software codes and designs, algorithms, developments, inventions, patent applications,\nlaboratory notebooks, processes, formulas, techniques, biological materials, mask works, engineering designs and\ndrawings, hardware configuration information, agreements with third parties, lists of, or information relating to, employees\nand consultants of the Company (including, but not limited to, the names, contact information, jobs, compensation, and\nexpertise of such employees and consultants), lists of, or information relating to, suppliers and customers (including, but\nnot limited to, customers of the Company on whom Consultant called or with whom Consultant became acquainted\nduring the Relationship), price lists, pricing methodologies, cost data, market share data, marketing plans, licenses,\ncontract information, business plans, financial forecasts, historical financial data, budgets or other business information\ndisclosed to Consultant by the Company either directly or indirectly, whether in writing, electronically, orally, or by\nobservation.\nThe Consultant understands that the above list is not exhaustive, and that Confidential Information also includes\nother information that is marked or otherwise identified as confidential or proprietary, or that would otherwise appear to a\nreasonable person to be confidential or proprietary in the context and circumstances in which the information is known or\nused. The Consultant understands and agrees that Confidential Information developed by him or her in the course of his\nengagement with the Company shall be subject to the terms and conditions of this Agreement as if the Company\nfurnished the same Confidential Information to the Consultant in the first instance. Confidential Information shall not\ninclude information that is generally available to and known by the public, provided that such disclosure to the public is\nthrough no direct or indirect fault of the Consultant or person(s) acting on the Consultant’s behalf.\n(c)\nThird Party Information. Consultant’s agreements in this Section 4 are intended to be for\nthe benefit of the Company and any third party that has entrusted information or physical material to the Company in\nconfidence. During the term of the Relationship and thereafter, Consultant will not improperly use or disclose to the\nCompany any confidential, proprietary or secret information of Consultant’s former clients or any other person, and\nConsultant will not bring any such information onto the Company’s property or place of business.\n(d)\nOther Rights. This Agreement is intended to supplement, and not to supersede, any rights\nthe Company may have in law or equity with respect to the protection of trade secrets or confidential or proprietary\ninformation.\n(e)\nU.S . Defend Trade Secrets Act. Notwithstanding the foregoing, the U.S . Defend Trade\nSecrets Act of 2016 (“DTSA”) provides that an individual shall not be held criminally or civilly liable under any federal or\nstate trade secret law for the disclosure of a trade secret that is made (i) in confidence to a federal, state, or local\ngovernment official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or\ninvestigating a suspected violation of law; or (iii) in a complaint or other document filed in a lawsuit or other proceeding, if\nsuch filing is made under seal. In addition, DTSA provides that an individual who files a lawsuit for retaliation by an\nemployer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use\nthe trade secret information in the court proceeding, if the individual (A) files any document containing the trade secret\nunder seal; and (B) does not disclose the trade secret, except pursuant to court order.\n-4-\n(f)\nDisclosure Required by Law. Nothing herein shall be construed to prevent disclosure of\nConfidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of\ncompetent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of\ndisclosure required by such law, regulation or order. The Consultant shall provide written notice of any such order to the\nCompany’s Chief Executive Officer or Chief Operating Officer within forty-eight (48) hours of receiving such order, but in\nany event sufficiently in advance of making any disclosure to permit the Company to contest the order or seek\nconfidentiality protections, as determined in the Company’s sole discretion.\n5.\nOwnership of Inventions.\n(a)\nInventions Retained and Licensed. Consultant has attached hereto, as Exhibit A, a\ncomplete list describing with particularity all Inventions (as defined below) that, as of the Effective Date: (i) have been\ncreated by or on behalf of Consultant, and/or (ii) are owned exclusively by Consultant or jointly by Consultant with others\nor in which Consultant has an interest, and that relate in any way to any of the Company’s actual or proposed\nbusinesses, products, services, or research and development, and which are not assigned to the Company hereunder\n(collectively “Prior Inventions”); or, if no such list is attached, Consultant represents and warrants that there are no such\nInventions at the time of signing this Agreement, and to the extent such Inventions do exist and are not listed on\nExhibit A, Consultant hereby forever waives any and all rights or claims of ownership to such Inventions. Consultant\nunderstands that Consultant’s listing of any Inventions on Exhibit A does not constitute an acknowledgement by the\nCompany of the existence or extent of such Inventions, nor of Consultant’s ownership of such Inventions.\n(b)\nUse or Incorporation of Inventions. Consultant shall not use, disclose or disseminate any\nof the Company’s Confidential Information except as specifically permitted in this Section 5. Consultant may use the\nConfidential Information of the Company solely to perform his obligations under this Agreement for the benefit of the\nCompany. Consultant will exercise the same degree of care as it takes to protect his own confidential information, but in\nno event less than reasonable care. The Consultant may not incorporate any Inventions into any business, venture,\nacademic, other pursuit that Consultant may engage in during or following the termination of the Relationship. If in the\ncourse of the Relationship, Consultant uses or incorporates into any of the Company’s products, services, processes or\nmachines any Invention not assigned to the Company pursuant to Section 5(d) of this Agreement in which Consultant\nhas an interest, Consultant will promptly so inform the Company in writing. Whether or not Consultant gives such notice,\nConsultant hereby irrevocably grants to the Company a nonexclusive, fully paid-up, royalty-free, assumable, perpetual,\nworldwide license, with right to transfer and to sublicense, to practice and exploit such Invention and to make, have\nmade, copy, modify, make derivative works of, use, sell, import, and otherwise distribute such Invention under all\napplicable intellectual property laws without restriction of any kind. The Consultant may not incorporate any Inventions\ninto any business, venture, academic, other pursuit that Consultant may engage in during or following the termination of\nthe Relationship.\n-5-\n(c)\nInventions. Consultant understands that “Inventions” means discoveries, developments,\nconcepts, designs, ideas, know how, modifications, improvements, derivative works, inventions, trade secrets and/or\noriginal works of authorship, whether or not patentable, copyrightable or otherwise legally protectable. Consultant\nunderstands this includes, but is not limited to, any new product, machine, article of manufacture, biological material,\nmethod, procedure, process, technique, use, equipment, device, apparatus, system, compound, formulation, composition\nof matter, design or configuration of any kind, or any improvement thereon. Consultant understands that “Company\nInventions” means any and all Inventions that Consultant or Consultant’s personnel may solely or jointly author,\ndiscover, develop, conceive, or reduce to practice in connection with, or as a result of, the Services performed for the\nCompany or otherwise in connection with the Relationship, except as otherwise provided in Section 5(i) below.\n(d)\nAssignment of Company Inventions. Consultant will promptly make full written disclosure\nto the Company, will hold in trust for the sole right and benefit of the Company, and hereby assigns to the Company, or\nits designee, all of Consultant’s right, title and interest throughout the world in and to any and all Company Inventions and\nall patent, copyright, trademark, trade secret and other intellectual property rights and other proprietary rights therein.\nConsultant hereby waives and irrevocably quitclaims to the Company or its designee any and all claims, of any nature\nwhatsoever, that Consultant now has or may hereafter have for infringement of any and all Company Inventions. Any\nassignment of Company Inventions includes all rights of attribution, paternity, integrity, modification, disclosure and\nwithdrawal, and any other rights throughout the world that may be known as or referred to as “moral rights,” “artist’s\nrights,” “droit moral,” or the like (collectively, “Moral Rights”). To the extent that Moral Rights cannot be assigned under\napplicable law, Consultant hereby waives and agrees not to enforce any and all Moral Rights, including, without\nlimitation, any limitation on subsequent modification, to the extent permitted under applicable law. If Consultant has any\nrights to the Company Inventions, other than Moral Rights, that cannot be assigned to the Company, Consultant hereby\nunconditionally and irrevocably grants to the Company during the term of such rights, an exclusive, irrevocable,\nperpetual, worldwide, fully paid and royalty-free license, with rights to sublicense through multiple levels of sublicensees,\nto reproduce, distribute, display, perform, prepare derivative works of and otherwise modify, make, have made, sell, offer\nto sell, import, practice methods, processes and procedures and otherwise use and exploit, such Company Inventions. .\n-6-\n(e)\nWork for Hire. The Consultant agrees that all marketing, operating and training ideas,\nsourcing data, processes and materials, including all inventions, discoveries, improvements, enhancements, written\nmaterials and development related to the business of the Company (“Proprietary Materials”) to which the Consultant\nmay have access or that the Consultant may develop or conceive while employed by the Company shall be considered\nworks made for hire for the Company and prepared within the scope of employment and shall belong exclusively to the\nCompany. Any Proprietary Materials developed by the Consultant that, under applicable law, may not be considered\nworks made for hire, are hereby assigned to the Company without the need for any further consideration, and the\nConsultant agrees to take such further action, including executing such instruments and documents as the Company may\nreasonably request, to evidence such assignment.\n(f)\nNo License. The Consultant understands that this Agreement does not, and shall not be\nconstrued to, grant the Consultant any license or right of any nature with respect to any Proprietary Materials, Moral\nRights, any Confidential Information, materials, software or other tools made available to him or her by the Company, or\nother intellectual property rights relating thereto.\n(g)\nMaintenance of Records. Consultant shall keep and maintain adequate and current written\nrecords of all Company Inventions made or conceived by Consultant or Consultant’s personnel (solely or jointly with\nothers) during the term of the Relationship. The records may be in the form of notes, sketches, drawings, flow charts,\nelectronic data or recordings, laboratory notebooks, or any other format. The records will be available to and remain the\nsole property of the Company at all times. Consultant shall not remove such records from the Company’s place of\nbusiness or systems except as expressly permitted by Company policy which may, from time to time, be revised at the\nsole election of the Company for the purpose of furthering the Company’s business. Consultant shall deliver all such\nrecords (including any copies thereof) to the Company at the time of termination of the Relationship as provided for in\nSection 6 and Section 7.\n(h)\nIntellectual Property Rights. Consultant shall assist the Company, or its designee, at its\nexpense, in every proper way in securing the Company’s, or its designee’s, rights in the Company Inventions and any\ncopyrights, patents, trademarks, mask work rights, Moral Rights, or other intellectual property rights relating thereto in\nany and all countries, including the disclosure to the Company or its designee of all pertinent information and data with\nrespect thereto, the execution of all applications, specifications, oaths, assignments, recordations, and all other\ninstruments which the Company or its designee shall deem necessary in order to apply for, obtain, maintain and transfer\nsuch rights, or if not transferable, waive and shall never assert such rights, and in order to assign and convey to the\nCompany or its designee, and any successors, assigns and nominees the sole and exclusive right, title and interest in\nand to such Company Inventions, and any copyrights, patents, mask work rights or other intellectual property rights\nrelating thereto. Consultant’s obligation to execute or cause to be executed, when it is in Consultant’s power to do so,\nany such instrument or papers shall continue during and at all times after the end of the Relationship and until the\nexpiration of the last such intellectual property right to expire in any country of the world. Consultant hereby irrevocably\ndesignates and appoints the Company and its duly authorized officers and agents as Consultant’s agent and\nattorney-in-fact, to act for and in Consultant’s behalf and stead to execute and file any such instruments and papers and\nto do all other lawfully permitted acts to further the application for, prosecution, issuance, maintenance or transfer of\nletters patent, copyright, mask work and other registrations related to such Company Inventions. This power of attorney is\ncoupled with an interest and shall not be affected by Consultant’s subsequent incapacity.\n-7-\n(i)\nException to Assignments. Subject to the requirements of applicable state law, if any,\nexempting certain Company Inventions, from the assignment provisions of this Agreement, Consultant understands that\nall Company Inventions must be, and are, assigned to the Company pursuant to this Agreement In order to assist in the\ndetermination of which inventions qualify for such state law exclusion, Consultant will advise the Company promptly in\nwriting, during and for a period of forty-eight (48) months immediately following the termination of the Relationship, of all\nInventions solely or jointly conceived or developed or reduced to practice by Consultant or Consultant’s personnel during\nthe period of the Relationship.\n6.\nCompany Property; Returning Company Documents. Consultant acknowledges that Consultant\nhas no expectation of privacy with respect to the Company’s telecommunications, networking or information processing\nsystems (including, without limitation, files, e-mail messages, and voice messages) and that Consultant’s activity and any\nfiles or messages on or using any of those systems may be monitored or reviewed at any time without notice. Consultant\nfurther acknowledges that any property situated on the Company’s premises or systems and owned by the Company,\nincluding disks and other storage media, filing cabinets or other work areas, is subject to inspection by Company\npersonnel at any time with or without notice. At the time of termination of the Relationship, Consultant will deliver to the\nCompany (and will not keep in Consultant’s possession, recreate or deliver to anyone else) any and all devices, records,\ndata, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, laboratory\nnotebooks, materials, flow charts, equipment, other documents or property, or reproductions of any of the\naforementioned items developed by Consultant or Consultant’s personnel pursuant to the Relationship or otherwise\nbelonging to the Company, its successors or assigns.\n7.\nTermination Certification. In the event of the termination of the Relationship, Consultant shall sign\nand deliver the “Termination Certification” attached hereto as Exhibit B; however, Consultant’s failure to sign and\ndeliver the Termination Certification shall in no way diminish Consultant’s continuing obligations under this Agreement.\n8.\nNotice to Third Parties. During the periods of time during which Consultant is restricted in taking\ncertain actions by the terms of Section 9 of this Agreement (the “Restriction Period”), Consultant shall inform any entity\nor person with whom Consultant may seek to enter into a business relationship (whether as an owner, employee,\nindependent contractor or otherwise) of Consultant’s contractual obligations under this Agreement. Consultant\nacknowledges that the Company may, with or without prior notice to Consultant and whether during or after the term of\nthe Relationship, notify third parties of Consultant’s agreements and obligations under this Agreement. Upon written\nrequest by the Company, Consultant will respond to the Company in writing regarding the status of Consultant’s\nengagement or proposed engagement with any party during the Restriction Period.\n-8-\n9.\nSolicitation of Employees, Consultants and Other Parties. As described above, Consultant\nacknowledges that the Company’s Confidential Information includes information relating to the Company’s employees,\nconsultants, customers and others, and Consultant will not use or disclose such Confidential Information except as\nauthorized by the Company in advance in writing. Consultant further agrees as follows:\n(a)\nEmployees, Consultants. During the term of the Relationship, and for a period of twelve\n(12) months immediately following the termination of the Relationship for any reason, whether with or without cause,\nConsultant shall not, directly or indirectly, solicit any of the Company’s employees or consultants to terminate their\nrelationship with the Company, or attempt to solicit employees or consultants of the Company, either for Consultant or for\nany other person or entity.\n(b)\nOther Parties. During the term of the Relationship, Consultant will not influence any of the\nCompany’s clients, licensors, licensees or customers from purchasing Company products or services or solicit or\ninfluence or attempt to influence any client, licensor, licensee, customer or other person either directly or indirectly, to\ndirect any purchase of products and/or services to any person, firm, corporation, institution or other entity in competition\nwith the business of the Company.\n10.\nNo Change to Duration of Relationship. Consultant understands and acknowledges that this\nAgreement does not alter, amend or expand upon any rights Consultant may have to continue in the consulting\nrelationship with, or in the duration of Consultant’s consulting relationship with, the Company under any existing\nagreements between the Company and Consultant, including without limitation the Consulting Agreement, or under\napplicable law.\n11.\nRepresentations and Covenants.\n(a) Facilitation of Agrement. Consultant shall execute promptly, both during and after the end of the\nRelationship, any proper oath, and to verify any proper document, required to carry out the terms of this Agreement, upon\nthe Company’s written request to do so.\n(b) No Conflicts. Consultant represents and warrants that Consultant’s performance of all the terms\nof this Agreement does not and will not breach any agreement Consultant has entered into, or will enter into, with any\nthird party, including without limitation any agreement to keep in confidence proprietary information or materials acquired\nby Consultant in confidence or in trust prior to or during the Relationship. Consultant will not disclose to the Company or\nuse any inventions, confidential or non-public proprietary information or material belonging to any previous client,\nemployer or any other party. Consultant will not induce the Company to use any inventions, confidential or non-public\nproprietary information, or material belonging to any previous client, employer or any other party. Consultant represents\nand warrants that Consultant has listed on Exhibit C all agreements (e.g., non-competition agreements, non-solicitation\nof customers agreements, non-solicitation of employees agreements, confidentiality agreements, inventions agreements,\netc.), if any, with a current or former client, employer, or any other person or entity, that may restrict Consultant’s ability to\nperform services for the Company or Consultant’s ability to recruit or engage customers or service providers on behalf of\nthe Company, or otherwise relate to or restrict Consultant’s ability to perform Consultant’s duties for the Company or any\nobligation Consultant may have to the Company. Consultant shall not enter into any written or oral agreement that\nconflicts with the provisions of this Agreement.\n-9-\n(c) No Other Consulting Agreements. Consultant represents and warrants that Consultant does\nnot presently perform nor will he perform, during the term of the Agreement, consulting or other services for, or engage in\nor intend to engage in an employment relationship with, companies whose businesses or proposed businesses in any\nway, in the opinion of the Company, involve products or services which would be competitive with the Company’s\nproducts or services, or those products or services proposed or in development by the Company during the term of the\nAgreement or would adversely affect the Consult’s ability to perform the Services hereunder. If, however, Consultant\ndesire to perform such services for a third party, Consultant agrees that, in advance of accepting such work, Consultant\nwill promptly notify the Company in writing, specifying the organization with which Consultant proposes to consult,\nprovide services, or become employed by and to provide information sufficient to allow the Company to determine if such\nwork would conflict with the terms of this Agreement, including the terms of the Confidentiality Agreement (defined\nbelow), the interests of the Company or further services which the Company might request of Consultant. If the Company\ndetermines, in its so discretion, that such work conflicts with the terms of this Agreement, the Consultant shall not\nundertake such engagements. Nothing herein shall be deemed to release the Consultant with respect to his obligations\nwith respect to the Confidential Information pursuant to this Agreement.\n(d) Non-Competition and Non-Solicitation and Non-Circumvention.\n(i) Non-Competition. Except as authorized by the Company’s Board of Directors, during the\nterm of the Relationship and for a period of twelve (12) months thereafter, the Consultant will not (except as an officer,\ndirector, stockholder, employee, agent or consultant of the Company or any subsidiary or affiliate thereof) either directly\nor indirectly, whether or not for consideration, (i) in any way, directly or indirectly, solicit, divert, or take away the business\nof any person who is or was a customer of the Company, or in any manner influence such person to cease doing\nbusiness in part or in whole with Company; (ii) engage in a Competing Business; or (iii) except for investments or\nownership in public entities, mutual funds and similar investments, none of which constitute more than 5% of the\nownership (provided such ownership interest is acquired solely for investment purposes) or control of such entities, own,\noperate, control, finance, manage, advise, be employed by or engaged by, perform any services for, invest or otherwise\nbecome associated in any capacity with any person engaged in a Competing Business; or (iv) engage in any practice the\npurpose or effect of which is to intentionally evade the provisions of this covenant. For purposes of this section,\n“Competing Business” means any company or business which is engaged directly or indirectly in any Company\nBusiness carried on or planned to be carried on (if such plans were developed the term of the Relationship) by the\nCompany; and “Company Business” means the Company’s business activities and operations as conducted during the\nterm of the Relationship and all products conceived, planned, researched, developed, tested, manufactured, sold,\nlicensed, leased or otherwise distributed or put into use by the Company, together with all services provided or planned\nby the Company, during your relationship with the Company.\n-10-\n(ii) Non-Solicitation and Non-Circumvention. For a period of twelve (12) months following\nthe termination of the Relationship, the Consultant will not directly or indirectly, whether for your account or for the\naccount of any other individual or entity, solicit or canvas the trade, business or patronage of, or sell to, any individuals or\nentities that were investors, customers or employees of the Company during the term of this Agreement, or prospective\ncustomers with respect to whom a sales effort, presentation or proposal was made by the Company or its affiliates,\nduring the one year period prior to the termination of the Relationship. Without limiting the foregoing, the Consultant shall\nnot, directly or indirectly (i) solicit, induce, enter into any agreement with, or attempt to influence any individual who was\nan employee or consultant of the Company at any time during the term of Relationship, to terminate his or her\nemployment relationship with the Company or to become employed or engaged by the Consultant or any individual or\nentity by which the Consultant are employed or for which you are acting as a consultant or other advisory capacity,\nand/or (ii) interfere in any other way with the employment, or other relationship, of any employee of, or consultant to, the\nCompany.\n(iii) Injunctive Relief. The Consultant acknowledges and agrees that the covenants and\nobligations of the Consultant set forth in this Agreement relate to special, unique and extraordinary Services rendered by\nthe Consultant to the Company and that a violation of any of the terms of such covenants and obligations will cause the\nCompany irreparable injury for which adequate remedies are not available at law. Therefore, the Consultant agrees that\nthe Company shall be entitled to seek an injunction, restraining order or other temporary or permanent equitable relief\n(without the requirement to post bond) restraining the Consultant from committing any violation of the covenants and\nobligations contained herein. These injunctive remedies are cumulative and are in addition to any other rights and\nremedies the Company may have at law or in equity.\n-1 1-\n(e) Voluntary Execution. Consultant certifies and acknowledges that Consultant has carefully read\nall of the provisions of this Agreement, that Consultant understands and has voluntarily accepted such provisions, and\nthat Consultant will fully and faithfully comply with such provisions.\n12.\nElectronic Delivery. Nothing herein is intended to imply a right to participate in any of the\nCompany’s equity incentive plans, however, if Consultant does participate in such plan(s), the Company may, in its sole\ndiscretion, decide to deliver any documents related to Consultant’s participation in the Company’s equity incentive plan(s)\nby electronic means or to request Consultant’s consent to participate in such plan(s) by electronic means. Consultant\nhereby consents to receive such documents by electronic delivery and agrees, if applicableto participate in such plan(s)\nthrough an on-line or electronic system established and maintained by the Company or a third party designated by the\nCompany.\n13.\nMiscellaneous.\n(a)\nGoverning Law. The validity, interpretation, construction and performance of this\nAgreement, and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be\ngoverned, construed and interpreted in accordance with the laws of the state of Nevada, without giving effect to principles\nof conflicts of law. Consultant acknowledges that he may not have the rights and privileges under applicable Nevada law\nthat he might otherwise have under the applicable laws of the United Kingdom with respect to this Agreement which he\nhereby knowingly and willingly waives.\n(b)\nEntire Agreement. Except as described in Section 3, this Agreement sets forth the entire\nagreement and understanding between the Company and Consultant relating to its subject matter and merges all prior\ndiscussions between the parties to this Agreement. No amendment to this Agreement will be effective unless in writing\nsigned by both parties to this Agreement. The Company shall not be deemed hereby to have waived any rights or\nremedies it may have in law or equity, nor to have given any authorizations or waived any of its rights under this\nAgreement, unless, and only to the extent, it does so by a specific writing signed by a duly authorized officer of the\nCompany. Any subsequent change or changes in Consultant’s duties, obligations, rights or compensation will not affect\nthe validity or scope of this Agreement.\n(c)\nSuccessors and Assigns. This Agreement will be binding upon Consultant’s successors\nand assigns, and will be for the benefit of the Company, its successors, and its assigns.\n(d)\nNotices. Any notice, demand or request required or permitted to be given under this\nAgreement shall be in writing and shall be deemed sufficient when delivered personally or by overnight courier or sent by\nemail, or 48 hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, addressed to\nthe party to be notified at such party’s address as set forth on the signature page, as subsequently modified by written\nnotice, or if no address is specified on the signature page, at the most recent address set forth in the Company’s books\nand records.\n-12-\n(e)\nSeverability. If one or more of the provisions in this Agreement are deemed void or\nunenforceable to any extent in any context, such provisions shall nevertheless be enforced to the fullest extent allowed\nby law in that and other contexts, and the validity and force of the remainder of this Agreement shall not be affected. The\nCompany and Consultant have attempted to limit Consultant’s right to use, maintain and disclose the Company’s\nConfidential Information, and to limit Consultant’s right to solicit employees and customers only to the extent necessary to\nprotect the Company from unfair competition. Should a court of competent jurisdiction determine that the scope of the\ncovenants contained in Section 9 and 11 exceeds the maximum restrictiveness such court deems reasonable and\nenforceable, the parties intend that the court should reform, modify and enforce the provision to such narrower scope as\nit determines to be reasonable and enforceable under the circumstances existing at that time. In the event that any court\nor government agency of competent jurisdiction determines that, notwithstanding the terms of the Consulting Agreement\nspecifying Consultant’s Relationship with the Company as that of an independent contractor, Consultant’s provision of\nservices to the Company is not as an independent contractor but instead as an employee under the applicable laws, then\nsolely to the extent that such determination is applicable, references in this Agreement to the Relationship between\nConsultant and the Company shall be interpreted to include an employment relationship, and this Agreement shall not be\ninvalid and unenforceable but shall be read to the fullest extent as may be valid and enforceable under the applicable\nlaws to carry out the intent and purpose of this Agreement.\n(f)\nRemedies. Consultant acknowledges that violation of this Agreement by Consultant may\ncause the Company irreparable harm, and therefore Consultant agrees that the Company will be entitled to seek\nextraordinary relief in court, including, but not limited to, temporary restraining orders, preliminary injunctions and\npermanent injunctions without the necessity of posting a bond or other security (or, where such a bond or security is\nrequired, that a $1,000 bond will be adequate), in addition to and without prejudice to any other rights or remedies that\nthe Company may have for a breach of this Agreement.\n(g)\nAdvice of Counsel. Consultant acknowledges THAT, IN EXECUTING THIS AGREEMENT,\nConsultant Has HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND\nConsultant Has read and understands ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS\nAGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR\nPREPARATION HEREOF.\n(h)\nCounterparts. This Agreement may be executed in any number of counterparts, each of\nwhich when so executed and delivered shall be deemed an original, and all of which together shall constitute one and the\nsame agreement. Execution of a facsimile or scanned copy will have the same force and effect as execution of an\noriginal, and a facsimile or scanned signature will be deemed an original and valid signature.\n-13-\n(i)\nEffective Date. Regardless of the date on which this Agreement is executed by the parties\nhereto, the effective date of this Agreement is June 1, 2019.\n[Signature Page Follows]\n-1 4-\nSIGNATURES\nThe parties have executed this Confidential Information and Invention Assignment Agreement on the respective dates set\nforth below, to be effective as of the Effective Date first above written.\nthe company:\nrenovacare, Inc.\nBy: /s/ Harmel S. Rayat_________________________\n(Signature)\nName: Harmel S. Rayat\nTitle: Chief Executive Officer\nAddress:\nRenovaCare, Inc.\n9375 East Shea Blvd.,\nSuite 107-A\nScottsdale, AZ 85260\nAttention: Harmel S. Rayat\nFacsimile: 604-336-8609\nEmail Address: hsr@renovacareinc.com\nCONSULTANT:\nRoger Esteban-Vives\n(Print Name)\n/s/ Roger Esteban-Vives__________________________\n(Signature)\nAddress:\nRoger Esteban_Viives\nFlat 1, 3 Recovery St.\nLondon, SW170DL, United Kingdom\nEmail: ________________________\nFacsimile: ______________________\n-15-
f9a70620141ea93cd0a89da34931e806.pdf	effective_date jurisdiction party term	EX-10.19 2 g12049exv10w19.htm EX-10.19 EMPLOYMENT AGREEMENT & CONFIDENTIALITY\nAGREEMENT/ NEIL UNDERWROOD\nExhibit 10.19\nEMPLOYMENT AGREEMENT\nThis EMPLOYMENT AGREEMENT (“Agreement”) is entered into as of this 1st day of December 2006 (the “Effective Date”), by and\nbetween S1 Corporation, a Delaware corporation (the “Company”), and Neil Underwood, individual (the “Employee”).\nWHEREAS, the Company and the Employee desire to enter into this Employment Agreement to set out the terms and conditions for the\nemployment relationship of the Employee with the Company from and after the Effective Date; and\nWHEREAS, the board of directors of the Company (the “Board”) has approved and authorized the Company’s execution, delivery and\nperformance of this Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and other good and valuable consideration,\nthe receipt and sufficiency of which hereby are acknowledged, the parties hereto agree as follows:\n1. Employment Agreement. On the terms and conditions set forth in this Agreement, the Company agrees to employ the Employee and the\nEmployee agrees to be employed by the Company for the Employment Period set forth in Section 2 hereof and in the position and with the duties\nset forth in Section 3 hereof. Terms used herein with initial capitalization not otherwise defined are defined in Section 20 below.\n2. Term. The initial term of employment under this Agreement shall be for a three-year period commencing on the Effective Date (the\n“Initial Term”). The term of employment shall be automatically renewed for an additional consecutive 12-month period (the “Extended Term”)\nas of the first and every subsequent anniversary of the Effective Date, unless and until either party provides written notice to the other party in\naccordance with Section 10 hereof not less than 90 days before such anniversary date that such party is terminating the term of employment\nunder this Agreement (“Non-Renewal”), which termination shall be effective as of the end of such Initial Term or Extended Term, as the case\nmay be, or until such term of employment is otherwise sooner terminated as hereinafter set forth. Such Initial Term and all such Extended Terms\nare collectively referred to herein as the “Employment Period.” A notice of Non-Renewal given by either party to this Agreement shall not be\ndeemed a termination of the Employee’s employment for purposes of Section 9 of this Agreement unless otherwise expressly provided in such\nnotice of Non-Renewal. The Company’s obligations under Section 9 hereof shall survive the expiration or termination of the Employment\nPeriod.\n3. Position and Duties. The Employee shall initially serve as the General Manager/Vice President of the Company. The Employee\nacknowledges that the Company may, at its sole discretion, change the Employee’s title, job duties and responsibilities and reporting as the\nCompany sees fit in its sole discretion. In any role in which the Employee is employed with the Company, the Employee shall render executive,\npolicy and other management services to the Company of the type customarily performed by persons serving in such capacity. The Employee\nshall initially report to the President of the Enterprise Business Unit of the Company unless otherwise determined by the Company. The\nEmployee shall also perform such other duties with the Company and with any Subsidiary as the CEO of the Company or the Board may from\ntime to time reasonably determine and assign to the Employee. The Employee shall devote the Employee’s reasonable best efforts and\nsubstantially full business time to the performance of the Employee’s duties and the advancement of the business and affairs of the Company.\nThe Employee agrees that during the Employment Period he or she will not be entitled to additional compensation for serving as a member of the\nboard of directors of the Company or any Subsidiary if he or she is elected to serve thereon.\n4. Place of Performance. In connection with the Employee’s employment by the Company, the Employee shall be based at the offices of\nthe Company in Atlanta, Georgia, except as otherwise agreed by the Employee and the Company and except for reasonable travel on Company\nbusiness.\n5. Compensation and Benefits; Stock Options.\n(a) Base Salary. During the Employment Period, the Company shall pay to the Employee an annual base salary (the “Base Salary”) at\nthe rate of $200,000.00 per year. The Base Salary will be reviewed annually and may be increased at the discretion of the Company. The Base\nSalary shall be payable semi-monthly or in such other installments as shall be consistent with the Company’s payroll procedures.\n(b) Annual Bonus. The Employee will be eligible to receive an annual bonus, payable no later than the end of the first fiscal quarter of\neach calendar year during the Employment Period (pro-rated for any period that is less than 12 months) of up to $200,000.00 for such calendar\nyear, based on the attainment of specific Company and individual performance targets as may be assigned by the Company annually.\n(c) Benefits. During the Employment Period, the Employee will be entitled to participate in any fringe benefit welfare benefit plan of\nthe Company (on the same terms as provided to other employees of the Company), including any plan providing for employee stock purchases,\npension or retirement income, retirement savings, employee stock ownership, deferred compensation or medical, prescription, dental, disability,\nemployee life, group life, accidental death or travel accident insurance benefits that the Company may adopt for the benefit of employees, in\naccordance with the terms of such plan. Nothing in this Agreement shall restrict the right of the Company to change insurance carriers and to\nadopt, amend, terminate or modify employee benefit plans and arrangements at any time and without the consent of the Employee.\n(d) Stock Options. The Company may grant options to purchase the stock of the Company to the Employee in accordance with the\nterms of the Company’s stock option plans.\n(e) Vacation; Holidays. The Employee shall be entitled to all public holidays observed by the Company and to annual vacation for such\nnumber of days as may be determined by the Company, and otherwise in accordance with the applicable vacation policies for senior executives\nof the Company, which shall be taken at a reasonable time or times.\n(f) Withholding Taxes and Other Deductions. To the extent required by law, the Company shall withhold from any payments due\nEmployee under this Agreement any applicable federal, state or local taxes and such other deductions as are prescribed by law or Company\npolicy or are otherwise authorized by the Employee.\n6. Expenses. The Employee is expected and is authorized to incur reasonable expenses in the performance of his duties hereunder. The\nCompany shall reimburse the Employee for all such expenses in accordance with the Company’s expense reimbursement policy, upon periodic\npresentation by the Employee of an itemized account, including reasonable substantiation, of such expenses.\n7. Confidentiality, Non-Disclosure and Non-Competition Agreement.\nConcurrently with the execution of this Agreement, the parties are entering into an Employee Covenants Agreement (the “Related\nAgreement”).\n8. Termination of Employment.\n(a) Permitted Terminations. The Employee’s employment hereunder may be terminated during the Employment Period under the\nfollowing circumstances:\ni. Death. The Employee’s employment hereunder shall terminate upon the Employee’s death;\nii. By the Company. The Company may terminate the Employee’s employment:\na.\nIf the Employee shall have been substantially unable to perform the Employee’s material duties hereunder by reason of illness,\nphysical or mental disability or other similar incapacity, which inability shall continue for three consecutive\nmonths (provided, that until such termination, the Employee shall continue to receive his compensation and benefits hereunder,\nreduced by any benefits payable to him or her under any disability insurance policy or plan applicable to him or her); or\nb. For Cause;\niii. By the Employee. The Employee may terminate his employment for any reason or for no reason.\n(b) Termination. Any termination of the Employee’s employment by the Company or the Employee (other than because of the\nEmployee’s death) shall be communicated by written Notice of Termination to the other party hereto in accordance with Section 10 hereof. For\npurposes of this Agreement, a “Notice of Termination” shall mean a notice which shall indicate the specific termination provision in this\nAgreement relied upon, if any, and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of\nthe Employee’s employment under the provision so indicated. Termination of the Employee’s employment shall take effect on the Date of\nTermination.\n9. Compensation Upon Termination or Change in Control.\n(a) Death. If the Employee’s employment is terminated during the Employment Period as a result of the Employee’s death, the\nCompany shall pay to the Employee’s estate, or as may be directed by the legal representatives of such estate, the Employee’s Base Salary due\nthrough the Date of Termination, a pro rata portion of the annual bonus that would have been payable for the calendar year of termination if the\nEmployee’s employment had not terminated (calculated based upon actual results through the Date of Termination and based upon budget for the\nremainder of the period and pro rated for the portion of the year during which the Employee was employed) and all other unpaid amounts, if any,\nto which the Employee is entitled as of the Date of Termination, at the time such payments are due, and the Company shall have no further\nobligation to the Employee under this Agreement.\n(b) Disability. If the Company terminates the Employee’s employment during the Employment Period because of the Employee’s\ndisability pursuant to Section 8(a)(ii)(A) hereof, the Company shall pay the Employee the Employee’s Base Salary due through the Date of\nTermination, a pro rata portion of the annual bonus that would have been payable for the calendar year of termination if the Employee’s\nemployment had not terminated (calculated based upon actual results through the Date of Termination and based upon budget for the remainder\nof the period and pro rated for the portion of the year during which the Employee was employed) and all other unpaid amounts, if any, to which\nthe Employee is entitled as of the Date of Termination, at the time such payments are due, and the Company shall have no further obligations to\nthe Employee under this Agreement; provided, that payments so made to the Employee with respect to any period that the Employee is\nsubstantially unable to perform the Employee’s material duties hereunder by reason of illness, physical or mental illness or other similar\nincapacity shall be reduced by the sum of the amounts, if any, payable to the Employee by reason of such disability, at or prior to the time of any\nsuch payment, under any disability insurance policy or benefit plan and which amounts have not previously been applied to reduce any such\npayment.\n(c) Termination by the Company for Cause or by the Employee without Good Reason. If, during the Employment Period, the Company\nterminates the Employee’s employment for Cause pursuant to Section 8(a)(ii)(B) hereof or the Employee terminates his employment without\nGood Reason, the Company shall pay the Employee the Employee’s Base Salary due through the Date of Termination, and all other unpaid\namounts, if any, to which the Employee is entitled as of the Date of Termination, at the time such payments are due, and the Company shall have\nno further obligations to the Employee under this Agreement. In the event that the Company intends to terminate the Employee for Cause, the\nEmployee shall have a reasonable opportunity, together with his counsel, to be heard before the Board of Directors of the Company before such\ntermination.\n(d) Termination by the Company without Cause or by the Employee with Good Reason. Subject to Section 9(e) below, if the Company\nterminates the Employee’s employment during the Employment Period other than for Cause, disability or death pursuant to Section 8(a)(i) or\n(ii) hereof or the Employee terminates employment hereunder with Good Reason, the Company shall (i) pay the Employee the\nEmployee’s Base Salary due through the Date of Termination, a pro rata portion of the annual bonus that would have been payable for the\ncalendar year of termination if the Employee’s employment had not terminated (calculated based upon actual results through the Date of\nTermination and based upon budget for the remainder of the period and pro rated for the portion of the year during which the Employee was\nemployed) and all other unpaid amounts, if any, to which the Employee is entitled as of the Date of Termination, at the time such payments are\ndue, (ii) pay, during the 12-month period commencing on the Date of Termination (the “Severance Period”), to the Employee an aggregate\namount equal to Employee’s Base Salary, payable in equal installments on the Company’s regular salary payment dates, (iii) shall continue in\neffect during the Severance Period the employee benefits provided to the Employee under Section 5(c) hereof immediately before the Date of\nTermination (except to that, to the extent such benefits are provided pursuant to a qualified plan under Section 401(a) of the Code, the Company\nshall provide a substantially equivalent nonqualified benefit) and (iv) if such termination occurs within two years after a Change in Control (or\nbefore a Change in Control has occurred, but after the Company has commenced negotiations of a transaction that results in a Change in\nControl), shall cause all of the outstanding options then held by the Employee to purchase stock of the Company to be fully vested and\nexercisable; provided, notwithstanding anything herein to the contrary, the provision for acceleration of options described in this paragraph will\nnot apply to any options, restricted stock, SAR or other awards approved by the S1 Board of Directors and/or granted to Employee on or about\nNovember 1, 2006; provided further, that no notice of Non-Renewal shall be deemed to be a termination of the Employee’s employment for such\npurposes unless otherwise expressly provided in such notice of Non-Renewal. As a condition precedent to the receipt of the foregoing payments\nand benefits, if requested by the Company, the Employee shall enter into an agreement with the Company confirming the Company’s right to\ncontinued performance by the Employee of the Employee’s obligations under the Related Agreement during the period following termination of\nthe Employee’s employment.\n(e) Limitation on Parachute Payments. Notwithstanding any other provision of this Agreement or of any other agreement, contract, or\nunderstanding heretofore or hereafter entered into by the Employee with the Company or any subsidiary or affiliate, except an agreement,\ncontract, or understanding hereafter entered into that expressly modifies or excludes application of this paragraph (an “Other Agreement”), and\nnotwithstanding any formal or informal plan or other arrangement for the direct or indirect provision of compensation to the Employee\n(including groups or classes of participants or beneficiaries of which the Employee is a member), whether or not such compensation is deferred,\nis in cash, or is in the form of a benefit to or for the Employee (a “Benefit Arrangement”), if the Employee is a “disqualified individual,” as\ndefined in Section 280G(c) of the Code, no payment or benefit shall be made or provided to the Employee or become vested, exercisable or\npayable, as applicable, (i) to the extent that such payment, right to exercise, vesting, or other benefit, taking into account all other payments,\nrights, or benefits to or for the Employee, or becoming vested, exercisable or payable, as the case may be, under this Agreement, all Other\nAgreements and all Benefit Arrangements, would cause any such payment, right to exercise, vesting or other benefit to which the Employee is or\nwould be entitled under this Agreement to be considered a “parachute payment” within the meaning of Section 280G(b)(2) of the Code as then in\neffect (a “Parachute Payment”) and (ii) if, as a result of receiving a Parachute Payment, the aggregate after-tax amounts received by the\nEmployee under this Agreement, all Other Agreements, and all Benefit Arrangements would be less than the maximum after-tax amount that\ncould be received by the Employee without causing any such payment, right to exercise, vesting or other benefit to be considered a Parachute\nPayment. In the event that the receipt of any such payment, right to exercise, vesting, or other benefit under this Agreement, in conjunction with\nall other rights, payments, or benefits to or for the Employee under any Other Agreement or any Benefit Arrangement would cause the Employee\nto be considered to have received a Parachute Payment under this Agreement that would have the effect of decreasing the after-tax amount\nreceived by the Employee as described in clause (ii) of the preceding sentence, then the Employee shall have the right, in the Employee’s sole\ndiscretion, to designate those rights, payments or benefits (or the vesting or exercisability thereof) under this Agreement, any Other Agreements\nand any Benefit Arrangements that should be reduced or eliminated so as to avoid having the right, payment or benefit to the Employee (or the\nvesting or exercisability thereof) under this Agreement be deemed to be a Parachute Payment. All determinations required to be made under this\nSection 9(e), including whether and when a reduction in rights, payments or benefits (or the vesting or exercisability thereof) is required and the\namount of such reduction and the assumptions to be utilized in arriving at such determination, shall be made by PricewaterhouseCoopers LLP or\nsuch other certified public accounting firm reasonably acceptable to the Company as may be designated by the Employee in writing (the\n“Accounting Firm”) which shall provide detailed supporting calculations both to the Company and the Employee within 15 business days of the\nreceipt of notice from the Employee or the Company. In the event that the Accounting Firm is serving as accountant or auditor for the Company\nor any individual, entity or group effecting a change in the ownership or effective control of the Company (within the meaning of Section 280G\nof the Code), the Employee shall appoint another nationally recognized\naccounting firm that is reasonably acceptable to the Company to make the determinations required hereunder (which accounting firm shall then\nbe referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any\ndetermination by the Accounting Firm shall be binding upon the Company and the Employee.\n(f) Liquidated Damages. The parties acknowledge and agree that damages which will result to the Employee for termination by the\nCompany without Cause or other breach of this Agreement by the Company shall be extremely difficult or impossible to establish or prove, and\nagree that the amounts payable to the Employee under Section 9(d) hereof (the “Severance Payments”) shall constitute liquidated damages for\nany breach of this Agreement by the Company through the Date of Termination. The Employee agrees that, except for such other payments and\nbenefits to which the Employee may be entitled as expressly provided by the terms of this Agreement or any applicable benefit plan, such\nliquidated damages shall be in lieu of all other claims that the Employee may make by reason of termination of his employment or any such\nbreach of this Agreement and that, as a condition to receiving the Severance Payments, the Employee will execute a release of claims in a form\nreasonably satisfactory to the Company.\n10. Notices. All notices, demands, requests, or other communications which may be or are required to be given, served, or sent by any\nparty to any other party pursuant to this Agreement shall be in writing and shall be hand delivered, sent by overnight courier or mailed by first-\nclass, registered or certified mail, return receipt requested, postage prepaid, or transmitted by telegram, telecopy or telex, addressed as follows:\n(i) If to the Company:\nS1 Corporation\n3500 Lenox Road\nSuite 200\nAtlanta, GA 30326\nFax: 404 923 6717\nAttn: Chief Legal Officer\nwith a copy (which shall not constitute notice) to:\nStuart G. Stein\nHogan & Hartson, L.L .P.\n555 13th Street, N.W.\nWashington, D.C. 20004-1190\nFax: 202/637-5910\n(ii) If to the Employee:\nEach party may designate by notice in writing a new address to which any notice, demand, request or communication may thereafter be so\ngiven, served or sent. Each notice, demand, request, or communication which shall be hand delivered, sent, mailed or telecopied in the manner\ndescribed above, or which shall be delivered to a telegraph company, shall be deemed sufficiently given, served, sent, received or delivered for\nall purposes at such time as it is delivered to the addressee (with the return receipt, the delivery receipt, or (with respect to a telecopy) the\nanswerback being deemed conclusive, but not exclusive, evidence of such delivery) or at such time as delivery is refused by the addressee upon\npresentation.\n11. Severability. The invalidity or unenforceability of any one or more provisions of this Agreement shall not affect the validity or\nenforceability of the other provisions of this Agreement, which shall remain in full force and effect.\n12. Survival. It is the express intention and agreement of the parties hereto that the provisions of Sections 9, 10, 11, 13, 17 and 20 hereof\nand this Section 12 shall survive the termination of employment of the Employee. In addition, all obligations of the Company to make payments\nhereunder shall survive any termination of this Agreement on the terms and conditions set forth herein.\n13. Assignment. The rights and obligations of the parties to this Agreement shall not be assignable or delegable, except that (i) in the event\nof the Employee’s death, the personal representative or legatees or distributees of the Employee’s estate, as the case may be, shall have the right\nto receive any amount owing and unpaid to the Employee hereunder and (ii) the rights and obligations of the Company hereunder shall be\nassignable and delegable in connection with any subsequent merger, consolidation, sale of all or substantially all of the assets or stock of the\nCompany or similar transaction involving the Company or a successor corporation. The Company shall require any successor to the Company to\nexpressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to\nperform it if no such succession had taken place.\n14. Binding Effect. Subject to any provisions hereof restricting assignment, this Agreement shall be binding upon the parties hereto and\nshall inure to the benefit of the parties and their respective heirs, devisees, executors, administrators, legal representatives, successors and\nassigns.\n15. Amendment; Waiver. This Agreement shall not be amended, altered or modified except by an instrument in writing duly executed by\nthe parties hereto. Neither the waiver by either of the parties hereto of a breach of or a default under any of the provisions of this Agreement, nor\nthe failure of either of the parties, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or\nprivilege hereunder, shall thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any such\nprovisions, rights or privileges hereunder.\n16. Headings. Section and subsection headings contained in this Agreement are inserted for convenience of reference only, shall not be\ndeemed to be a part of this Agreement for any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the\nprovisions hereof.\n17. Governing Law. This Agreement, the rights and obligations of the parties hereto, and any claims or disputes relating thereto, shall be\ngoverned by and construed in accordance with the laws of the State of Delaware (but not including any choice of law rule thereof that would\ncause the laws of another jurisdiction to apply).\n18. Entire Agreement. This Agreement constitutes the entire agreement between the parties respecting the employment of the Employee,\nthere being no representations, warranties or commitments except as set forth herein.\n19. Counterparts. This Agreement may be executed in two counterparts, each of which shall be an original and all of which shall be\ndeemed to constitute one and the same instrument.\n20. Definitions.\n“Accounting Firm” is defined in Section 9(e) above.\n“Agreement” means this Employment Agreement.\n“Base Salary” is defined in Section 5(a) above.\n“Benefit Arrangement” is defined in Section 9(e) above.\n“Board” means the board of directors of the Company.\n“Cause” means (i) the indictment by a grand jury or conviction of a felony or a crime involving moral turpitude (excluding a traffic\nviolation not involving any period of incarceration) or the willful commission of any other act or omission involving dishonesty or fraud with\nrespect to, and materially adversely\naffecting the business affairs of, the Company or any of its Subsidiaries or any of their customers or suppliers, (ii) conduct tending to bring the\nCompany or any of its Subsidiaries into public disgrace or disrepute that is determined by the Company to cause or be reasonably likely to cause\nsubstantial injury to the business and operations of the Company or such Subsidiary, (iii) substantial and repeated failure to perform duties,\nincluding but not limited to achieving quarterly goals, of the office held by the Employee as reasonably directed by the Company (other than any\nsuch failure resulting from the Employee’s incapacity due to injury or illness), and such failure is not cured within 30 days after the Employee\nreceives written notice thereof from the Company that specifically identifies the manner in which the Company believes the Employee has not\nsubstantially performed his duties, (iv) gross negligence or willful misconduct with respect to the Company or any of its Subsidiaries that causes\nsubstantial and material injury to the business and operations of the Company or such Subsidiary or (v) any material breach of the Related\nAgreement. For purposes of this provision, no act or failure to act, on the part of the Employee, shall be considered “willful” unless it is done, or\nomitted to be done, by the Employee in bad faith or without reasonable belief that the Employee’s action or omission was in the best interests of\nthe Company. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or based upon advice of\ncounsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Employee in good faith and in the best\ninterests of the Company.\n“Change in Control” means the earliest to occur of the following: (i) any person (other than a corporation (a “Holding Company”) all of\nthe common stock of which is owned, immediately after the transaction, by persons who owned more than 50 percent of the voting shares of the\nCompany immediately before the transaction) becomes the beneficial owner of 50 percent or more of the total number of voting shares of the\nCompany; (ii) any person (other than the persons named as proxies solicited on behalf of the Board) holds revocable or irrevocable proxies, as to\nthe election or removal of two or more directors of the Company, for more than 50 percent of the total number of voting shares of the Company;\n(iii) any person (other than a Holding Company) has commenced a tender or exchange offer, or entered into an agreement or received an option,\nto acquire beneficial ownership of more than 50 percent of the total number of voting shares of the Company; (iv) there is a sale or other transfer\nof all or substantially all of the assets of the Company other than to a Holding Company or a corporation controlled by the Company or (v) as the\nresult of, or in connection with, any cash tender or exchange offer, merger, or other business combination, sale of assets or contested election, or\nany combination of the foregoing transactions, the persons who were directors of the Company before such transaction shall cease to constitute at\nleast a majority of the Board or any successor corporation. In the event that the Company (or any successor entity) becomes a subsidiary of a\nHolding Company, references to the Company in the preceding sentence shall be deemed to be references to the Holding Company.\nNotwithstanding the foregoing, a “Change in Control” will not be deemed to have occurred under clauses (ii) or (iii) above if within 30 days of\nsuch action, the Board (by a two-thirds affirmative vote of the directors in office before such action occurred) makes a determination that such\naction does not and is not likely to constitute a change in control of the Company. For purposes of this definition, a “person” includes an\nindividual, corporation, partnership, trust, association, joint venture, pool, syndicate, unincorporated organization, joint-stock company, or similar\norganization or group acting in concert. A person for these purposes shall be deemed to be a beneficial owner as that term is used in Rule 13d-3\nunder the Securities Exchange Act of 1934, as amended.\n“Code” means the Internal Revenue Code of 1986, as amended.\n“Company” means S1 Corporation and its successors and assigns.\n“Date of Termination” means (i) if the Employee’s employment is terminated by the Employee’s death, the date of the Employee’s\ndeath; (ii) if the Employee’s employment is terminated because of the Employee’s disability pursuant to Section 8(a)(ii)(A) hereof, 30 days after\nNotice of Termination, provided that the Employee shall not have returned to the performance of the Employee’s duties on a full-time basis\nduring such 30-day period; (iii) if the Employee’s employment is terminated by the Company for Cause pursuant to Section 8(a)(ii)(B) hereof or\nby the Employee pursuant to Section 8(a)(iii) hereof, the date specified in the Notice of Termination; or (iv) if the Employee’s employment is\nterminated during the Employment Period other than pursuant to Section 8(a), the date on which Notice of Termination is given.\n“Effective Date” means December 1, 2006.\n“Employment Period” is defined in Section 2 above.\n“Employee” means Neil Underwood\n“Good Reason” means (i) the Company’s failure to perform or observe any of the material terms or provisions of this Agreement, and\nthe continued failure of the Company to cure such default within 30 days after written demand for performance has been given to the Company\nby the Employee, which demand shall describe specifically the nature of such alleged failure to perform or observe such material terms or\nprovisions; (ii) a change in the Employee’s reporting, duties and/or job title where there is no reduction in the Employee’s Base Salary or Annual\nBonus potential shall not be determined to be Good Reason under this Agreement; (iii) any requirement by the Company without the written\nconsent of the Employee that the Employee relocate to a place more than 50 miles from Atlanta, Georgia to perform his duties hereunder; or\n(iv) the failure of the Company to obtain the assumption of the Company’s obligations under this Agreement by a successor as contemplated by\nSection 13 of this Agreement.\n“Initial Term” is defined in Section 2 above.\n“Non-Renewal” is defined in Section 2 above.\n“Notice of Termination” is defined in Section 8(b) above.\n“Other Agreement” is defined in Section 9(e) above.\n“Parachute Payment” is defined in Section 9(e) above.\n“Related Agreement” is defined in Section 7 above.\n“Severance Period” is defined in Section 9(d) above.\n“Subsidiary” means any corporation of which the Company owns securities having a majority of the ordinary voting power in electing\nthe board of directors directly or through one or more subsidiaries and any partnership, limited liability company or other entity in which the\nCompany or any subsidiary owns a controlling interest.\nIN WITNESS WHEREOF, the undersigned have duly executed and delivered this Agreement, or have caused this Agreement to be duly\nexecuted and delivered on their behalf, as of the Effective Date.\nS1 CORPORATION\nBy: /s/ Johann Dreyer\nPresident and Chief Executive Officer\nTHE EMPLOYEE:\n/s/ Neil Underwood\nCONFIDENTIALITY, NON-DISCLOSURE\nAND NON-SOLICITATION AGREEMENT\nIn consideration and as a condition of my employment by S1 Corporation, a Delaware corporation (the “Company”, which term shall also\ninclude any subsidiaries and divisions of S1 Corporation), I hereby agree with the Company as follows:\n1. Nondisclosure and Use of Proprietary Information.\n(a) I represent and warrant that: (i) I am not subject to any legal or contractual duty or agreement that would prevent me from performing\nmy duties for the Company or complying with this Agreement, and I am not in breach of any legal or contractual duty or agreement, including\nany agreement concerning trade secrets or confidential information owned by any other party.\n(b) I will not: use, disclose, or reverse engineer the Trade Secrets or the Confidential Information, except as authorized in writing by the\nCompany; (ii) during my employment with the Company, use, disclose, or reverse engineer (A) any confidential information or trade secrets of\nany former employer or third party, or (B) any works of authorship developed in whole or in part by me during any former employment or for\nany other party, unless authorized in writing by the former employer or third party; or (iii) upon my resignation or termination, (A) retain Trade\nSecrets or Confidential Information, including any copies existing in any form (including electronic form) which are in my possession or control,\nor (B) destroy, delete, or alter the Trade Secrets or Confidential Information without the Company’s written consent.\n(c) The obligations under this Agreement shall (i) with regard to the Trade Secrets, remain in effect as long as the information constitutes a\ntrade secret under applicable law; and (ii) with regard to the Confidential Information, remain in effect during the Restricted Period.\n(d) The confidentiality, property, and proprietary rights protections available in this Agreement are in addition to, and not exclusive of, any\nand all other rights to which the Company is entitled under federal and state law, including, but not limited to, rights provided under copyright\nlaws, trade secret and confidential information laws, and laws concerning fiduciary duties.\n(e) For purposes of this Agreement, the following definitions shall apply:\n(i) “Confidential Information” means (a) information of the Company, to the extent not considered a Trade Secret under applicable law,\nthat (i) relates to the business of the Company, (ii) possesses an element of value to the Company, (iii) is not generally known to the Company’s\ncompetitors, and (iv) would damage the Company if disclosed, and (b) information of any third party provided to the Company which the\nCompany is obligated to treat as confidential. Confidential Information includes, but is not limited to, (i) future business plans, (ii) the\ncomposition, description, schematic or design of products, future products or equipment of the Company, (iii) communication systems, audio\nsystems, system designs and related documentation, (iv) advertising or marketing plans, (v) information regarding independent contractors,\nemployees, clients and customers of the Company, and (vi) information concerning the Company’s financial structure and methods and\nprocedures of operation. Confidential Information shall not include any information that (a) is or becomes generally available to the public other\nthan as a result of an unauthorized disclosure, (b) has been independently developed and disclosed by others without violating this Agreement or\nthe legal rights of any party, or (c) otherwise enters the public domain through lawful means.\n(ii) “Restricted Period” means the time period during my employment with the Company, and for one (1) year after my employment\nwith the Company ends.\n(iii) “Trade Secrets” means information of the Company, and its licensors, suppliers, clients and customers, without regard to form,\nincluding, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a\ndrawing, a process, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers which is not commonly\nknown\nby or available to the public and which information (i) derives economic value, actual or potential, from not being generally known to, and not\nbeing readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of\nefforts that are reasonable under the circumstances to maintain its secrecy.\n2. Assignment of Developments.\n(a) I understand that my employment duties may include inventing in areas directly or indirectly related to the business of the Company or\nto a line of business that the Company may reasonably be interested in pursuing. All Work Product shall constitute work made for hire. If (i) any\nof the Work Product may not be considered work made for hire, or (ii) ownership of all right, title, and interest in and to the Work Product will\nnot vest exclusively in the Company, then, without further consideration, I assign all presently-existing Work Product to the Company, and agree\nto assign, and automatically assign, all future Work Product to the Company.\n(b) The Company will have the right to obtain and hold in its own name copyrights, patents, design registrations and continuations thereof,\nproprietary database rights, trademarks, rights of publicity, and any other protection available in the Work Product. At the Company’s request, I\nagree to perform, during or after my employment with the Company, any acts to transfer, perfect and defend the Company’s ownership of the\nWork Product, including, but not limited to: (i) executing all documents (including a formal assignment to the Company) for filing an application\nor registration for protection of the Work Product (an “Application”), (ii) explaining the nature of the Work Product to persons designated by the\nCompany, (iii) reviewing Applications and other related papers, or (iv) providing any other assistance reasonably required for the orderly\nprosecution of Applications. I agree to provide the Company with a written description of any Work Product in which I am involved (solely or\njointly with others) and the circumstances surrounding the creation of such Work Product.\n(c) During my employment and after my employment with the Company ends, I grant to the Company an irrevocable, nonexclusive,\nworldwide, royalty-free license to: (i) make, use, sell, copy, perform, display, distribute, or otherwise utilize copies of the Licensed Materials,\n(ii) prepare, use and distribute derivative works based upon the Licensed Materials, and (iii) authorize others to do the same. I will notify the\nCompany in writing of any Licensed Materials I deliver to the Company.\n(d) For purposes of this Agreement, the following definitions shall apply:\n(i) “Licensed Materials” means any materials that I utilize for the benefit of the Company, or deliver to the Company or the Company’s\ncustomers, which (i) do not constitute Work Product, (ii) are created by me or of which I am otherwise in lawful possession, and (iii) I may\nlawfully utilize for the benefit of, or distribute to, the Company or the Company’s customers.\n(ii) “Work Product” means (a) any data, databases, materials, documentation, computer programs, inventions (whether or not\npatentable), designs, and/or works of authorship, including but not limited to, discoveries, ideas, concepts, properties, formulas, compositions,\nmethods, programs, procedures, systems, techniques, products, improvements, innovations, writings, pictures, audio, video, images of me, and\nartistic works, and (b) any subject matter protected under patent, copyright, proprietary database, trademark, trade secret, rights of publicity,\nconfidential information, or other property rights, including all worldwide rights therein, that is or was conceived, created or developed in whole\nor in part by me while employed by the Company and that either (i) is created within the scope of my employment, (ii) is based on, results from,\nor is suggested by any work performed within the scope of my employment and is directly or indirectly related to the business of the Company or\na line of business that the Company may reasonably be interested in pursuing, (iii) has been or will be paid for by the Company, or (iv) was\ncreated or improved in whole or in part by using the Company’s time, resources, data, facilities, or equipment.\n3. Non-Solicitation.\n(a) During the Restricted Period, I will not, directly or indirectly, solicit, recruit or induce any Employee to (i) terminate his employment\nrelationship with the Company, or (ii) work for any other person or entity engaged in the Business.\n(b) During the Restricted Period, I will not directly or indirectly solicit any Customer of the Company for the purpose of providing any\ngoods or services competitive with the Business. The restrictions set forth in this Section apply only to Customers with whom I had Contact.\n(c) For purposes of this Agreement, the following definitions shall apply:\n(i) “Business” shall mean the business of developing, designing, and implementing computer applications that allow banks, brokerage\nfirms, and insurance companies to enable their customers to access financial information and conduct transactions over multiple delivery\nchannels.\n(ii) “Contact” means any interaction between a Customer and me which (i) takes place in an effort to establish, maintain, and/or further\na business relationship on behalf of the Company and (ii) occurs during the last year of my employment with the Company (or during my\nemployment if employed less than a year).\n(iii) “Customer” means any person or entity to whom the Company has sold its products or services, or solicited to sell its products or\nservices.\n(iv) “Employee” means any person who (i) is employed by the Company at the time my employment with the Company ends, (ii) was\nemployed by the Company during the last year of my employment with the Company (or during my employment if employed less than a year),\nor (iii) is employed by the Company during the Restricted Period.\n4. Equitable Relief.\nIf I breach this Agreement, I agree that: (a) the Company would suffer irreparable harm; (b) it would be difficult to determine damages,\nand money damages alone would be an inadequate remedy for the injuries suffered by the Company; and (c) if the Company seeks injunctive\nrelief to enforce this Agreement, I will waive and will not (i) assert any defense that the Company has an adequate remedy at law with respect to\nthe breach, (ii) require that the Company submit proof of the economic value of any Trade Secret or Confidential Information, or (iii) require the\nCompany to post a bond or any other security. Nothing contained in this Agreement shall limit the Company’s right to any other remedies at law\nor in equity.\n5. No Right to Continued Employment.\nI understand that this Agreement does not create a contract of employment or a contract for benefits. Except as set forth in a separate\nagreement duly authorized and executed by the Company, my employment relationship with the Company is at-will. This means that at either my\noption or the Company’s option, my employment may be terminated at any time, with or without cause or notice.\n6. Attorneys’ Fees\nIn the event of litigation relating to this Agreement, the Company shall, if it is the prevailing party, be entitled to recover attorneys’ fees\nand costs of litigation in addition to all other remedies available at law or in equity.\n7. Waivers.\nAny waiver by the Company of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any\nsubsequent breach of such provision or any other provision hereof.\n8. Acknowledgment; Severability.\nI acknowledge that the restrictions contained in this Agreement are reasonable and necessary to protect the legitimate business interests of\nthe Company, and will not impair or infringe upon my right to work or earn a living in the event my employment with the Company ends. The\nprovisions of this Agreement are severable. If any provision is determined to be invalid, illegal, or unenforceable, in whole or in part, the\nremaining provisions and any partially enforceable provisions shall remain in full force and effect.\n9. Survival of Obligations.\nI understand that I shall not have the right to assign my rights or obligations under this Agreement. My obligations under this Agreement\nshall survive the termination of my employment regardless of the manner of, or reason for, such termination.\n10. Assignment.\nThis Agreement shall be assignable to, and shall inure to the benefit of, the Company’s successors and assigns, including, without\nlimitation, successors through merger, name change, consolidation, or sale of a majority of the Company’s stock or assets, and shall be binding\nupon me.\n11. Governing Law.\nThe laws of the State of Delaware shall govern this Agreement. If Delaware’s conflict of law rules would apply another state’s laws, the\nCompany and I agree that Delaware law shall still govern.\n12. Entire Agreement.\nThis Agreement constitutes the entire agreement between the Company and me concerning the subject matter of this Agreement. This\nAgreement supersedes any prior communications, agreements or understandings, whether oral or written, between the Company and me relating\nto the subject matter of this Agreement.\n13. Consent to Jurisdiction.\nI agree that any claim arising out of or relating to this Agreement shall be brought in a state or federal court of competent jurisdiction in\nAtlanta, Georgia. I consent to the personal jurisdiction of the state and/or federal courts located in Georgia. I waive (a) any objection to\njurisdiction or venue, or (b) any defense claiming lack of jurisdiction or improper venue, in any action brought in such courts.\nIN WITNESS WHEREOF, the undersigned has executed this Confidentiality, Non-Disclosure and Non-Solicitation Agreement as of the\n1st day of December, 2006.\n/s/ Neil Underwood\nSignature\nName: Neil Underwood\nAddress\nAgreed to and Accepted:\nS1 CORPORATION\nBy: /s/ Johann Dreyer\nPresident and Chief Executive Officer	EX-10.19 2 g12049exv10w19.htm EX-10.19 EMPLOYMENT AGREEMENT & CONFIDENTIALITY\nAGREEMENT/ NEIL UNDERWROOQOD\nExhibit 10.19\nEMPLOYMENT AGREEMENT\nThis EMPLOYMENT AGREEMENT (“Agreement”) is entered into as of this 1st day of December 2006 (the “Effective Date”), by and\nbetween S1 Corporation, a Delaware corporation (the “Company”), and Neil Underwood, individual (the “Employee”).\nWHEREAS, the Company and the Employee desire to enter into this Employment Agreement to set out the terms and conditions for the\nemployment relationship of the Employee with the Company from and after the Effective Date; and\nWHEREAS, the board of directors of the Company (the “Board”) has approved and authorized the Company’s execution, delivery and\nperformance of this Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and other good and valuable consideration,\nthe receipt and sufficiency of which hereby are acknowledged, the parties hereto agree as follows:\n1. Employment Agreement. On the terms and conditions set forth in this Agreement, the Company agrees to employ the Employee and the\nEmployee agrees to be employed by the Company for the Employment Period set forth in Section 2 hereof and in the position and with the duties\nset forth in Section 3 hereof. Terms used herein with initial capitalization not otherwise defined are defined in Section 20 below.\n2. Term. The initial term of employment under this Agreement shall be for a three-year period commencing on the Effective Date (the\n“Initial Term”). The term of employment shall be automatically renewed for an additional consecutive 12-month period (the “Extended Term”)\nas of the first and every subsequent anniversary of the Effective Date, unless and until either party provides written notice to the other party in\naccordance with Section 10 hereof not less than 90 days before such anniversary date that such party is terminating the term of employment\nunder this Agreement (“Non-Renewal”), which termination shall be effective as of the end of such Initial Term or Extended Term, as the case\nmay be, or until such term of employment is otherwise sooner terminated as hereinafter set forth. Such Initial Term and all such Extended Terms\nare collectively referred to herein as the “Employment Period.” A notice of Non-Renewal given by either party to this Agreement shall not be\ndeemed a termination of the Employee’s employment for purposes of Section 9 of this Agreement unless otherwise expressly provided in such\nnotice of Non-Renewal. The Company’s obligations under Section 9 hereof shall survive the expiration or termination of the Employment\nPeriod.\n3. Position and Duties. The Employee shall initially serve as the General Manager/Vice President of the Company. The Employee\nacknowledges that the Company may, at its sole discretion, change the Employee’s title, job duties and responsibilities and reporting as the\nCompany sees fit in its sole discretion. In any role in which the Employee is employed with the Company, the Employee shall render executive,\npolicy and other management services to the Company of the type customarily performed by persons serving in such capacity. The Employee\nshall initially report to the President of the Enterprise Business Unit of the Company unless otherwise determined by the Company. The\nEmployee shall also perform such other duties with the Company and with any Subsidiary as the CEO of the Company or the Board may from\ntime to time reasonably determine and assign to the Employee. The Employee shall devote the Employee’s reasonable best efforts and\nsubstantially full business time to the performance of the Employee’s duties and the advancement of the business and affairs of the Company.\nThe Employee agrees that during the Employment Period he or she will not be entitled to additional compensation for serving as a member of the\nboard of directors of the Company or any Subsidiary if he or she is elected to serve thereon.\n4. Place of Performance. In connection with the Employee’s employment by the Company, the Employee shall be based at the offices of\nthe Company in Atlanta, Georgia, except as otherwise agreed by the Employee and the Company and except for reasonable travel on Company\nbusiness.\n5. Compensation and Benefits; Stock Options.\n(a) Base Salary. During the Employment Period, the Company shall pay to the Employee an annual base salary (the “Base Salary”) at\nthe rate of $200,000.00 per year. The Base Salary will be reviewed annually and may be increased at the discretion of the Company. The Base\nSalary shall be payable semi-monthly or in such other installments as shall be consistent with the Company’s payroll procedures.\n(b) Annual Bonus. The Employee will be eligible to receive an annual bonus, payable no later than the end of the first fiscal quarter of\neach calendar year during the Employment Period (pro-rated for any period that is less than 12 months) of up to $200,000.00 for such calendar\nyear, based on the attainment of specific Company and individual performance targets as may be assigned by the Company annually.\n(c) Benefits. During the Employment Period, the Employee will be entitled to participate in any fringe benefit welfare benefit plan of\nthe Company (on the same terms as provided to other employees of the Company), including any plan providing for employee stock purchases,\npension or retirement income, retirement savings, employee stock ownership, deferred compensation or medical, prescription, dental, disability,\nemployee life, group life, accidental death or travel accident insurance benefits that the Company may adopt for the benefit of employees, in\naccordance with the terms of such plan. Nothing in this Agreement shall restrict the right of the Company to change insurance carriers and to\nadopt, amend, terminate or modify employee benefit plans and arrangements at any time and without the consent of the Employee.\n \n(d) Stock Options. The Company may grant options to purchase the stock of the Company to the Employee in accordance with the\nterms of the Company’s stock option plans.\n(e) Vacation; Holidays. The Employee shall be entitled to all public holidays observed by the Company and to annual vacation for such\nnumber of days as may be determined by the Company, and otherwise in accordance with the applicable vacation policies for senior executives\nof the Company, which shall be taken at a reasonable time or times.\n \n(f) Withholding Taxes and Other Deductions. To the extent required by law, the Company shall withhold from any payments due\nEmployee under this Agreement any applicable federal, state or local taxes and such other deductions as are prescribed by law or Company\npolicy or are otherwise authorized by the Employee.\n6. Expenses. The Employee is expected and is authorized to incur reasonable expenses in the performance of his duties hereunder. The\nCompany shall reimburse the Employee for all such expenses in accordance with the Company’s expense reimbursement policy, upon periodic\npresentation by the Employee of an itemized account, including reasonable substantiation, of such expenses.\n7. Confidentiality, Non-Disclosure and Non-Competition Agreement.\nConcurrently with the execution of this Agreement, the parties are entering into an Employee Covenants Agreement (the “Related\nAgreement”).\n8. Termination of Employment.\n(a) Permitted Terminations. The Employee’s employment hereunder may be terminated during the Employment Period under the\nfollowing circumstances:\ni.  Death. The Employee’s employment hereunder shall terminate upon the Employee’s death;\nii. By the Company. The Company may terminate the Employee’s employment:\na.  If the Employee shall have been substantially unable to perform the Employee’s material duties hereunder by reason of illness,\nphysical or mental disability or other similar incapacity, which inability shall continue for three consecutive\nmonths (provided, that until such termination, the Employee shall continue to receive his compensation and benefits hereunder,\nreduced by any benefits payable to him or her under any disability insurance policy or plan applicable to him or her); or\nb.  For Cause;\niii. By the Employee. The Employee may terminate his employment for any reason or for no reason.\n(b) Termination. Any termination of the Employee’s employment by the Company or the Employee (other than because of the\nEmployee’s death) shall be communicated by written Notice of Termination to the other party hereto in accordance with Section 10 hereof. For\npurposes of this Agreement, a “Notice of Termination” shall mean a notice which shall indicate the specific termination provision in this\nAgreement relied upon, if any, and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of\nthe Employee’s employment under the provision so indicated. Termination of the Employee’s employment shall take effect on the Date of\nTermination.\n9. Compensation Upon Termination or Change in Control.\n(a) Death. If the Employee’s employment is terminated during the Employment Period as a result of the Employee’s death, the\nCompany shall pay to the Employee’s estate, or as may be directed by the legal representatives of such estate, the Employee’s Base Salary due\nthrough the Date of Termination, a pro rata portion of the annual bonus that would have been payable for the calendar year of termination if the\nEmployee’s employment had not terminated (calculated based upon actual results through the Date of Termination and based upon budget for the\nremainder of the period and pro rated for the portion of the year during which the Employee was employed) and all other unpaid amounts, if any,\nto which the Employee is entitled as of the Date of Termination, at the time such payments are due, and the Company shall have no further\nobligation to the Employee under this Agreement.\n(b) Disability. If the Company terminates the Employee’s employment during the Employment Period because of the Employee’s\ndisability pursuant to Section 8(a)(ii)(A) hereof, the Company shall pay the Employee the Employee’s Base Salary due through the Date of\nTermination, a pro rata portion of the annual bonus that would have been payable for the calendar year of termination if the Employee’s\nemployment had not terminated (calculated based upon actual results through the Date of Termination and based upon budget for the remainder\nof the period and pro rated for the portion of the year during which the Employee was employed) and all other unpaid amounts, if any, to which\nthe Employee is entitled as of the Date of Termination, at the time such payments are due, and the Company shall have no further obligations to\nthe Employee under this Agreement; provided, that payments so made to the Employee with respect to any period that the Employee is\nsubstantially unable to perform the Employee’s material duties hereunder by reason of illness, physical or mental illness or other similar\nincapacity shall be reduced by the sum of the amounts, if any, payable to the Employee by reason of such disability, at or prior to the time of any\nsuch payment, under any disability insurance policy or benefit plan and which amounts have not previously been applied to reduce any such\npayment.\n \nterminates the Employee’s employment for Cause pursuant to Section 8(a)(ii)(B) hereof or the Employee terminates his employment without\nGood Reason, the Company shall pay the Employee the Employee’s Base Salary due through the Date of Termination, and all other unpaid\namounts, if any, to which the Employee is entitled as of the Date of Termination, at the time such payments are due, and the Company shall have\nno further obligations to the Employee under this Agreement. In the event that the Company intends to terminate the Employee for Cause, the\nEmployee shall have a reasonable opportunity, together with his counsel, to be heard before the Board of Directors of the Company before such\ntermination.\nterminates the Employee’s employment during the Employment Period other than for Cause, disability or death pursuant to Section 8(a)(i) or\n(ii) hereof or the Employee terminates employment hereunder with Good Reason, the Company shall (i) pay the Employee the\nEmployee’s Base Salary due through the Date of Termination, a pro rata portion of the annual bonus that would have been payable for the\ncalendar year of termination if the Employee’s employment had not terminated (calculated based upon actual results through the Date of\nTermination and based upon budget for the remainder of the period and pro rated for the portion of the year during which the Employee was\nemployed) and all other unpaid amounts, if any, to which the Employee is entitled as of the Date of Termination, at the time such payments are\ndue, (ii) pay, during the 12-month period commencing on the Date of Termination (the “Severance Period”), to the Employee an aggregate\namount equal to Employee’s Base Salary, payable in equal installments on the Company’s regular salary payment dates, (iii) shall continue in\neffect during the Severance Period the employee benefits provided to the Employee under Section 5(c) hereof immediately before the Date of\nTermination (except to that, to the extent such benefits are provided pursuant to a qualified plan under Section 401(a) of the Code, the Company\nshall provide a substantially equivalent nonqualified benefit) and (iv) if such termination occurs within two years after a Change in Control (or\nbefore a Change in Control has occurred, but after the Company has commenced negotiations of a transaction that results in a Change in\nControl), shall cause all of the outstanding options then held by the Employee to purchase stock of the Company to be fully vested and\nexercisable; provided, notwithstanding anything herein to the contrary, the provision for acceleration of options described in this paragraph will\nnot apply to any options, restricted stock, SAR or other awards approved by the S1 Board of Directors and/or granted to Employee on or about\nNovember 1, 2006; provided further, that no notice of Non-Renewal shall be deemed to be a termination of the Employee’s employment for such\npurposes unless otherwise expressly provided in such notice of Non-Renewal. As a condition precedent to the receipt of the foregoing payments\nand benefits, if requested by the Company, the Employee shall enter into an agreement with the Company confirming the Company’s right to\ncontinued performance by the Employee of the Employee’s obligations under the Related Agreement during the period following termination of\nthe Employee’s employment.\n(e) Limitation on Parachute Payments. Notwithstanding any other provision of this Agreement or of any other agreement, contract, or\nunderstanding heretofore or hereafter entered into by the Employee with the Company or any subsidiary or affiliate, except an agreement,\ncontract, or understanding hereafter entered into that expressly modifies or excludes application of this paragraph (an “Other Agreement™), and\nnotwithstanding any formal or informal plan or other arrangement for the direct or indirect provision of compensation to the Employee\n(including groups or classes of participants or beneficiaries of which the Employee is a member), whether or not such compensation is deferred,\nis in cash, or is in the form of a benefit to or for the Employee (a “Benefit Arrangement”), if the Employee is a “disqualified individual,” as\ndefined in Section 280G(c) of the Code, no payment or benefit shall be made or provided to the Employee or become vested, exercisable or\npayable, as applicable, (i) to the extent that such payment, right to exercise, vesting, or other benefit, taking into account all other payments,\nrights, or benefits to or for the Employee, or becoming vested, exercisable or payable, as the case may be, under this Agreement, all Other\nAgreements and all Benefit Arrangements, would cause any such payment, right to exercise, vesting or other benefit to which the Employee is or\nwould be entitled under this Agreement to be considered a “parachute payment” within the meaning of Section 280G(b)(2) of the Code as then in\neffect (a “Parachute Payment”) and (ii) if, as a result of receiving a Parachute Payment, the aggregate after-tax amounts received by the\nEmployee under this Agreement, all Other Agreements, and all Benefit Arrangements would be less than the maximum after-tax amount that\ncould be received by the Employee without causing any such payment, right to exercise, vesting or other benefit to be considered a Parachute\nPayment. In the event that the receipt of any such payment, right to exercise, vesting, or other benefit under this Agreement, in conjunction with\nall other rights, payments, or benefits to or for the Employee under any Other Agreement or any Benefit Arrangement would cause the Employee\nto be considered to have received a Parachute Payment under this Agreement that would have the effect of decreasing the after-tax amount\nreceived by the Employee as described in clause (ii) of the preceding sentence, then the Employee shall have the right, in the Employee’s sole\ndiscretion, to designate those rights, payments or benefits (or the vesting or exercisability thereof) under this Agreement, any Other Agreements\nand any Benefit Arrangements that should be reduced or eliminated so as to avoid having the right, payment or benefit to the Employee (or the\nvesting or exercisability thereof) under this Agreement be deemed to be a Parachute Payment. All determinations required to be made under this\nSection 9(e), including whether and when a reduction in rights, payments or benefits (or the vesting or exercisability thereof) is required and the\namount of such reduction and the assumptions to be utilized in arriving at such determination, shall be made by PricewaterhouseCoopers LLP or\nsuch other certified public accounting firm reasonably acceptable to the Company as may be designated by the Employee in writing (the\n“Accounting Firm”) which shall provide detailed supporting calculations both to the Company and the Employee within 15 business days of the\nreceipt of notice from the Employee or the Company. In the event that the Accounting Firm is serving as accountant or auditor for the Company\nor any individual, entity or group effecting a change in the ownership or effective control of the Company (within the meaning of Section 280G\nof the Code), the Employee shall appoint another nationally recognized\naccounting firm that is reasonably acceptable to the Company to make the determinations required hereunder (which accounting firm shall then\nbe referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any\ndetermination by the Accounting Firm shall be binding upon the Company and the Employee.\n(f) Liquidated Damages. The parties acknowledge and agree that damages which will result to the Employee for termination by the\nCompany without Cause or other breach of this Agreement by the Company shall be extremely difficult or impossible to establish or prove, and\nagree that the amounts payable to the Employee under Section 9(d) hereof (the “Severance Payments™) shall constitute liquidated damages for\nany breach of this Agreement by the Company through the Date of Termination. The Employee agrees that, except for such other payments and\nbenefits to which the Employee may be entitled as expressly provided by the terms of this Agreement or any applicable benefit plan, such\nliquidated damages shall be in lieu of all other claims that the Employee may make by reason of termination of his employment or any such\nbreach of this Agreement and that, as a condition to receiving the Severance Payments, the Employee will execute a release of claims in a form\nreasonably satisfactory to the Company.\n10. Notices. All notices, demands, requests, or other communications which may be or are required to be given, served, or sent by any\nparty to any other party pursuant to this Agreement shall be in writing and shall be hand delivered, sent by overnight courier or mailed by first-\nclass, registered or certified mail, return receipt requested, postage prepaid, or transmitted by telegram, telecopy or telex, addressed as follows:\n(i) If to the Company:\nS1 Corporation\n3500 Lenox Road\nSuite 200\nAtlanta, GA 30326\nFax: 404 923 6717\nAttn: Chief Legal Officer\nwith a copy (which shall not constitute notice) to:\nStuart G. Stein\nHogan & Hartson, L.L.P.\n555 13th Street, N.W.\nWashington, D.C. 20004-1190\nFax: 202/637-5910\n(ii) If to the Employee:\nEach party may designate by notice in writing a new address to which any notice, demand, request or communication may thereafter be so\ngiven, served or sent. Each notice, demand, request, or communication which shall be hand delivered, sent, mailed or telecopied in the manner\ndescribed above, or which shall be delivered to a telegraph company, shall be deemed sufficiently given, served, sent, received or delivered for\nall purposes at such time as it is delivered to the addressee (with the return receipt, the delivery receipt, or (with respect to a telecopy) the\nanswerback being deemed conclusive, but not exclusive, evidence of such delivery) or at such time as delivery is refused by the addressee upon\npresentation.\n11. Severability. The invalidity or unenforceability of any one or more provisions of this Agreement shall not affect the validity or\nenforceability of the other provisions of this Agreement, which shall remain in full force and effect.\n12. Survival. It is the express intention and agreement of the parties hereto that the provisions of Sections 9, 10, 11, 13, 17 and 20 hereof\nand this Section 12 shall survive the termination of employment of the Employee. In addition, all obligations of the Company to make payments\nhereunder shall survive any termination of this Agreement on the terms and conditions set forth herein.\n13. Assignment. The rights and obligations of the parties to this Agreement shall not be assignable or delegable, except that (i) in the event\nof the Employee’s death, the personal representative or legatees or distributees of the Employee’s estate, as the case may be, shall have the right\nto receive any amount owing and unpaid to the Employee hereunder and (ii) the rights and obligations of the Company hereunder shall be\nassignable and delegable in connection with any subsequent merger, consolidation, sale of all or substantially all of the assets or stock of the\nCompany or similar transaction involving the Company or a successor corporation. The Company shall require any successor to the Company to\nexpressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to\nperform it if no such succession had taken place.\n \n14. Binding Effect. Subject to any provisions hereof restricting assignment, this Agreement shall be binding upon the parties hereto and\nshall inure to the benefit of the parties and their respective heirs, devisees, executors, administrators, legal representatives, successors and\nassigns.\n15. Amendment; Waiver. This Agreement shall not be amended, altered or modified except by an instrument in writing duly executed by\nthe parties hereto. Neither the waiver by either of the parties hereto of a breach of or a default under any of the provisions of this Agreement, nor\nthe failure of either of the parties, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or\nprivilege hereunder, shall thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any such\nprovisions, rights or privileges hereunder.\n16. Headings. Section and subsection headings contained in this Agreement are inserted for convenience of reference only, shall not be\ndeemed to be a part of this Agreement for any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the\nprovisions hereof.\n17. Governing Law. This Agreement, the rights and obligations of the parties hereto, and any claims or disputes relating thereto, shall be\ngoverned by and construed in accordance with the laws of the State of Delaware (but not including any choice of law rule thereof that would\ncause the laws of another jurisdiction to apply).\n18. Entire Agreement. This Agreement constitutes the entire agreement between the parties respecting the employment of the Employee,\nthere being no representations, warranties or commitments except as set forth herein.\n19. Counterparts. This Agreement may be executed in two counterparts, each of which shall be an original and all of which shall be\ndeemed to constitute one and the same instrument.\n20. Definitions.\n“Accounting Firm” is defined in Section 9(e) above.\n“Agreement” means this Employment Agreement.\n“Base Salary” is defined in Section 5(a) above.\n“Benefit Arrangement” is defined in Section 9(e) above.\n“Board” means the board of directors of the Company.\n“Cause” means (i) the indictment by a grand jury or conviction of a felony or a crime involving moral turpitude (excluding a traffic\nviolation not involving any period of incarceration) or the willful commission of any other act or omission involving dishonesty or fraud with\nrespect to, and materially adversely\naffecting the business affairs of, the Company or any of its Subsidiaries or any of their customers or suppliers, (ii) conduct tending to bring the\nCompany or any of its Subsidiaries into public disgrace or disrepute that is determined by the Company to cause or be reasonably likely to cause\nsubstantial injury to the business and operations of the Company or such Subsidiary, (iii) substantial and repeated failure to perform duties,\nincluding but not limited to achieving quarterly goals, of the office held by the Employee as reasonably directed by the Company (other than any\nsuch failure resulting from the Employee’s incapacity due to injury or illness), and such failure is not cured within 30 days after the Employee\nreceives written notice thereof from the Company that specifically identifies the manner in which the Company believes the Employee has not\nsubstantially performed his duties, (iv) gross negligence or willful misconduct with respect to the Company or any of its Subsidiaries that causes\nsubstantial and material injury to the business and operations of the Company or such Subsidiary or (v) any material breach of the Related\nAgreement. For purposes of this provision, no act or failure to act, on the part of the Employee, shall be considered “willful” unless it is done, or\nomitted to be done, by the Employee in bad faith or without reasonable belief that the Employee’s action or omission was in the best interests of\nthe Company. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or based upon advice of\ncounsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Employee in good faith and in the best\ninterests of the Company.\n“Change in Control” means the earliest to occur of the following: (i) any person (other than a corporation (a “Holding Company”) all of\nthe common stock of which is owned, immediately after the transaction, by persons who owned more than 50 percent of the voting shares of the\nCompany immediately before the transaction) becomes the beneficial owner of 50 percent or more of the total number of voting shares of the\nCompany; (ii) any person (other than the persons named as proxies solicited on behalf of the Board) holds revocable or irrevocable proxies, as to\nthe election or removal of two or more directors of the Company, for more than 50 percent of the total number of voting shares of the Company;\n(iii) any person (other than a Holding Company) has commenced a tender or exchange offer, or entered into an agreement or received an option,\nto acquire beneficial ownership of more than 50 percent of the total number of voting shares of the Company; (iv) there is a sale or other transfer\nof all or substantially all of the assets of the Company other than to a Holding Company or a corporation controlled by the Company or (v) as the\nresult of, or in connection with, any cash tender or exchange offer, merger, or other business combination, sale of assets or contested election, or\nany combination of the foregoing transactions, the persons who were directors of the Company before such transaction shall cease to constitute at\nleast a majority of the Board or any successor corporation. In the event that the Company (or any successor entity) becomes a subsidiary of a\nHolding Company, references to the Company in the preceding sentence shall be deemed to be references to the Holding Company.\nNotwithstanding the foregoing, a “Change in Control” will not be deemed to have occurred under clauses (ii) or (iii) above if within 30 days of\nsuch action, the Board (by a two-thirds affirmative vote of the directors in office before such action occurred) makes a determination that such\naction does not and is not likely to constitute a change in control of the Company. For purposes of this definition, a “person” includes an\nindividual, corporation, partnership, trust, association, joint venture, pool, syndicate, unincorporated organization, joint-stock company, or similar\norganization or group acting in concert. A person for these purposes shall be deemed to be a beneficial owner as that term is used in Rule 13d-3\nunder the Securities Exchange Act of 1934, as amended.\n“Code” means the Internal Revenue Code of 1986, as amended.\n“Company” means S1 Corporation and its successors and assigns.\n“Date of Termination” means (i) if the Employee’s employment is terminated by the Employee’s death, the date of the Employee’s\ndeath; (ii) if the Employee’s employment is terminated because of the Employee’s disability pursuant to Section 8(a)(ii)(A) hereof, 30 days after\nNotice of Termination, provided that the Employee shall not have returned to the performance of the Employee’s duties on a full-time basis\nduring such 30-day period; (iii) if the Employee’s employment is terminated by the Company for Cause pursuant to Section 8(a)(ii)(B) hereof or\nby the Employee pursuant to Section 8(a)(iii) hereof, the date specified in the Notice of Termination; or (iv) if the Employee’s employment is\nterminated during the Employment Period other than pursuant to Section 8(a), the date on which Notice of Termination is given.\n“Effective Date” means December 1, 2006.\n“Employment Period” is defined in Section 2 above.\n“Employee” means Neil Underwood\n“Good Reason” means (i) the Company’s failure to perform or observe any of the material terms or provisions of this Agreement, and\nthe continued failure of the Company to cure such default within 30 days after written demand for performance has been given to the Company\nby the Employee, which demand shall describe specifically the nature of such alleged failure to perform or observe such material terms or\nprovisions; (ii) a change in the Employee’s reporting, duties and/or job title where there is no reduction in the Employee’s Base Salary or Annual\nBonus potential shall not be determined to be Good Reason under this Agreement; (iii) any requirement by the Company without the written\nconsent of the Employee that the Employee relocate to a place more than 50 miles from Atlanta, Georgia to perform his duties hereunder; or\n(iv) the failure of the Company to obtain the assumption of the Company’s obligations under this Agreement by a successor as contemplated by\nSection 13 of this Agreement.\n“Initial Term” is defined in Section 2 above.\n“Non-Renewal” is defined in Section 2 above.\n“Notice of Termination” is defined in Section 8(b) above.\n“Other Agreement” is defined in Section 9(e) above.\n“Parachute Payment” is defined in Section 9(e) above.\n“Related Agreement” is defined in Section 7 above.\n \n“Severance Period” is defined in Section 9(d) above.\n“Subsidiary” means any corporation of which the Company owns securities having a majority of the ordinary voting power in electing\nthe board of directors directly or through one or more subsidiaries and any partnership, limited liability company or other entity in which the\nCompany or any subsidiary owns a controlling interest.\nIN WITNESS WHEREOQF, the undersigned have duly executed and delivered this Agreement, or have caused this Agreement to be duly\nexecuted and delivered on their behalf, as of the Effective Date.\nS1 CORPORATION\nBy: /s/ Johann Dreyer\nPresident and Chief Executive Officer\nTHE EMPLOYEE:\n/s/ Neil Underwood\nCONFIDENTIALITY, NON-DISCLOSURE\nAND NON-SOLICITATION AGREEMENT\nIn consideration and as a condition of my employment by S1 Corporation, a Delaware corporation (the “Company”, which term shall also\ninclude any subsidiaries and divisions of S1 Corporation), I hereby agree with the Company as follows:\n1. Nondisclosure and Use of Proprietary Information.\n \n(a) I represent and warrant that: (i) I am not subject to any legal or contractual duty or agreement that would prevent me from performing\nmy duties for the Company or complying with this Agreement, and I am not in breach of any legal or contractual duty or agreement, including\nany agreement concerning trade secrets or confidential information owned by any other party.\n(b) I will not: use, disclose, or reverse engineer the Trade Secrets or the Confidential Information, except as authorized in writing by the\nCompany; (ii) during my employment with the Company, use, disclose, or reverse engineer (A) any confidential information or trade secrets of\nany former employer or third party, or (B) any works of authorship developed in whole or in part by me during any former employment or for\nany other party, unless authorized in writing by the former employer or third party; or (iii) upon my resignation or termination, (A) retain Trade\nSecrets or Confidential Information, including any copies existing in any form (including electronic form) which are in my possession or control,\nor (B) destroy, delete, or alter the Trade Secrets or Confidential Information without the Company’s written consent.\n(c) The obligations under this Agreement shall (i) with regard to the Trade Secrets, remain in effect as long as the information constitutes a\ntrade secret under applicable law; and (ii) with regard to the Confidential Information, remain in effect during the Restricted Period.\n(d) The confidentiality, property, and proprietary rights protections available in this Agreement are in addition to, and not exclusive of, any\nand all other rights to which the Company is entitled under federal and state law, including, but not limited to, rights provided under copyright\nlaws, trade secret and confidential information laws, and laws concerning fiduciary duties.\n(e) For purposes of this Agreement, the following definitions shall apply:\n(i) “Confidential Information” means (a) information of the Company, to the extent not considered a Trade Secret under applicable law,\nthat (i) relates to the business of the Company, (ii) possesses an element of value to the Company, (iii) is not generally known to the Company’s\ncompetitors, and (iv) would damage the Company if disclosed, and (b) information of any third party provided to the Company which the\nCompany is obligated to treat as confidential. Confidential Information includes, but is not limited to, (i) future business plans, (ii) the\ncomposition, description, schematic or design of products, future products or equipment of the Company, (iii) communication systems, audio\nsystems, system designs and related documentation, (iv) advertising or marketing plans, (v) information regarding independent contractors,\nemployees, clients and customers of the Company, and (vi) information concerning the Company’s financial structure and methods and\nprocedures of operation. Confidential Information shall not include any information that (a) is or becomes generally available to the public other\nthan as a result of an unauthorized disclosure, (b) has been independently developed and disclosed by others without violating this Agreement or\nthe legal rights of any party, or (c) otherwise enters the public domain through lawful means.\n(ii) “Restricted Period” means the time period during my employment with the Company, and for one (1) year after my employment\nwith the Company ends.\n(iii) “Trade Secrets” means information of the Company, and its licensors, suppliers, clients and customers, without regard to form,\nincluding, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a\ndrawing, a process, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers which is not commonly\nknown\nby or available to the public and which information (i) derives economic value, actual or potential, from not being generally known to, and not\nbeing readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of\nefforts that are reasonable under the circumstances to maintain its secrecy.\n2. Assignment of Developments.\n(a) I understand that my employment duties may include inventing in areas directly or indirectly related to the business of the Company or\nto a line of business that the Company may reasonably be interested in pursuing. All Work Product shall constitute work made for hire. If (i) any\nof the Work Product may not be considered work made for hire, or (ii) ownership of all right, title, and interest in and to the Work Product will\nnot vest exclusively in the Company, then, without further consideration, I assign all presently-existing Work Product to the Company, and agree\nto assign, and automatically assign, all future Work Product to the Company.\n(b) The Company will have the right to obtain and hold in its own name copyrights, patents, design registrations and continuations thereof,\nproprietary database rights, trademarks, rights of publicity, and any other protection available in the Work Product. At the Company’s request, 1\nagree to perform, during or after my employment with the Company, any acts to transfer, perfect and defend the Company’s ownership of the\nWork Product, including, but not limited to: (i) executing all documents (including a formal assignment to the Company) for filing an application\nor registration for protection of the Work Product (an “Application”), (ii) explaining the nature of the Work Product to persons designated by the\nCompany, (iii) reviewing Applications and other related papers, or (iv) providing any other assistance reasonably required for the orderly\nprosecution of Applications. I agree to provide the Company with a written description of any Work Product in which I am involved (solely or\njointly with others) and the circumstances surrounding the creation of such Work Product.\n(c) During my employment and after my employment with the Company ends, I grant to the Company an irrevocable, nonexclusive,\nworldwide, royalty-free license to: (i) make, use, sell, copy, perform, display, distribute, or otherwise utilize copies of the Licensed Materials,\n(ii) prepare, use and distribute derivative works based upon the Licensed Materials, and (iii) authorize others to do the same. I will notify the\nCompany in writing of any Licensed Materials I deliver to the Company.\n(d) For purposes of this Agreement, the following definitions shall apply:\n(i) “Licensed Materials” means any materials that I utilize for the benefit of the Company, or deliver to the Company or the Company’s\ncustomers, which (i) do not constitute Work Product, (ii) are created by me or of which I am otherwise in lawful possession, and (iii) I may\nlawfully utilize for the benefit of, or distribute to, the Company or the Company’s customers.\n(ii) “Work Product” means (a) any data, databases, materials, documentation, computer programs, inventions (whether or not\npatentable), designs, and/or works of authorship, including but not limited to, discoveries, ideas, concepts, properties, formulas, compositions,\nmethods, programs, procedures, systems, techniques, products, improvements, innovations, writings, pictures, audio, video, images of me, and\nartistic works, and (b) any subject matter protected under patent, copyright, proprietary database, trademark, trade secret, rights of publicity,\nconfidential information, or other property rights, including all worldwide rights therein, that is or was conceived, created or developed in whole\nor in part by me while employed by the Company and that either (i) is created within the scope of my employment, (ii) is based on, results from,\nor is suggested by any work performed within the scope of my employment and is directly or indirectly related to the business of the Company or\na line of business that the Company may reasonably be interested in pursuing, (iii) has been or will be paid for by the Company, or (iv) was\ncreated or improved in whole or in part by using the Company’s time, resources, data, facilities, or equipment.\n3. Non-Solicitation.\n(a) During the Restricted Period, I will not, directly or indirectly, solicit, recruit or induce any Employee to (i) terminate his employment\nrelationship with the Company, or (ii) work for any other person or entity engaged in the Business.\n(b) During the Restricted Period, I will not directly or indirectly solicit any Customer of the Company for the purpose of providing any\ngoods or services competitive with the Business. The restrictions set forth in this Section apply only to Customers with whom I had Contact.\n(c) For purposes of this Agreement, the following definitions shall apply:\n(i) “Business” shall mean the business of developing, designing, and implementing computer applications that allow banks, brokerage\nfirms, and insurance companies to enable their customers to access financial information and conduct transactions over multiple delivery\nchannels.\n(ii) “Contact” means any interaction between a Customer and me which (i) takes place in an effort to establish, maintain, and/or further\na business relationship on behalf of the Company and (ii) occurs during the last year of my employment with the Company (or during my\nemployment if employed less than a year).\n(iii) “Customer” means any person or entity to whom the Company has sold its products or services, or solicited to sell its products or\nservices.\n(iv) “Employee” means any person who (i) is employed by the Company at the time my employment with the Company ends, (ii) was\nemployed by the Company during the last year of my employment with the Company (or during my employment if employed less than a year),\nor (iii) is employed by the Company during the Restricted Period.\n4. Equitable Relief.\nIf I breach this Agreement, I agree that: (a) the Company would suffer irreparable harm; (b) it would be difficult to determine damages,\nand money damages alone would be an inadequate remedy for the injuries suffered by the Company; and (c) if the Company seeks injunctive\nrelief to enforce this Agreement, I will waive and will not (i) assert any defense that the Company has an adequate remedy at law with respect to\nthe breach, (ii) require that the Company submit proof of the economic value of any Trade Secret or Confidential Information, or (iii) require the\nCompany to post a bond or any other security. Nothing contained in this Agreement shall limit the Company’s right to any other remedies at law\nor in equity.\n5. No Right to Continued Employment.\nI understand that this Agreement does not create a contract of employment or a contract for benefits. Except as set forth in a separate\nagreement duly authorized and executed by the Company, my employment relationship with the Company is at-will. This means that at either my\noption or the Company’s option, my employment may be terminated at any time, with or without cause or notice.\n6. Attorneys’ Fees\nIn the event of litigation relating to this Agreement, the Company shall, if it is the prevailing party, be entitled to recover attorneys’ fees\nand costs of litigation in addition to all other remedies available at law or in equity.\n7. Waivers.\nAny waiver by the Company of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any\nsubsequent breach of such provision or any other provision hereof.\n8. Acknowledgment; Severability.\nI acknowledge that the restrictions contained in this Agreement are reasonable and necessary to protect the legitimate business interests of\nthe Company, and will not impair or infringe upon my right to work or earn a living in the event my employment with the Company ends. The\nprovisions of this Agreement are severable. If any provision is determined to be invalid, illegal, or unenforceable, in whole or in part, the\nremaining provisions and any partially enforceable provisions shall remain in full force and effect.\n9. Survival of Obligations.\nI understand that I shall not have the right to assign my rights or obligations under this Agreement. My obligations under this Agreement\nshall survive the termination of my employment regardless of the manner of, or reason for, such termination.\n10. Assignment.\nThis Agreement shall be assignable to, and shall inure to the benefit of, the Company’s successors and assigns, including, without\nlimitation, successors through merger, name change, consolidation, or sale of a majority of the Company’s stock or assets, and shall be binding\nupon me.\n11. Governing Law.\nThe laws of the State of Delaware shall govern this Agreement. If Delaware’s conflict of law rules would apply another state’s laws, the\nCompany and I agree that Delaware law shall still govern.\n12. Entire Agreement.\nThis Agreement constitutes the entire agreement between the Company and me concerning the subject matter of this Agreement. This\nAgreement supersedes any prior communications, agreements or understandings, whether oral or written, between the Company and me relating\nto the subject matter of this Agreement.\n13. Consent to Jurisdiction.\nI agree that any claim arising out of or relating to this Agreement shall be brought in a state or federal court of competent jurisdiction in\nAtlanta, Georgia. I consent to the personal jurisdiction of the state and/or federal courts located in Georgia. I waive (a) any objection to\njurisdiction or venue, or (b) any defense claiming lack of jurisdiction or improper venue, in any action brought in such courts.\nIN WITNESS WHEREOQF, the undersigned has executed this Confidentiality, Non-Disclosure and Non-Solicitation Agreement as of the\n1st day of December, 2006.\n/s/ Neil Underwood\nSignature\nName: Neil Underwood\nAddress\nAgreed to and Accepted:\nS1 CORPORATION\nBy: /s/ Johann Dreyer\nPresident and Chief Executive Officer	EX-10.19 2 g12049exv10w19.htm EX-10.19 EMPLOYMENT AGREEMENT & CONFIDENTIALITY\nAGREEMENT/ NEIL UNDERWROOD\nExhibit 10.19\nEMPLOYMENT AGREEMENT\nThis EMPLOYMENT AGREEMENT ("Agreement") is entered into as of this 1st day of December 2006 (the "Effective Date"), by and\nbetween S1 Corporation, a Delaware corporation (the "Company"), and Neil Underwood, individual (the "Employee").\nWHEREAS, the Company and the Employee desire to enter into this Employment Agreement to set out the terms and conditions for the\nemployment relationship of the Employee with the Company from and after the Effective Date; and\nWHEREAS, the board of directors of the Company (the "Board") has approved and authorized the Company's execution, delivery and\nperformance of this Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and other good and valuable consideration,\nthe receipt and sufficiency of which hereby are acknowledged, the parties hereto agree as follows:\n1. Employment Agreement. On the terms and conditions set forth in this Agreement, the Company agrees to employ the Employee and the\nEmployee agrees to be employed by the Company for the Employment Period set forth in Section 2 hereof and in the position and with the duties\nset forth in Section 3 hereof. Terms used herein with initial capitalization not otherwise defined are defined in Section 20 below.\n2. Term. The initial term of employment under this Agreement shall be for a three-year period commencing on the Effective Date (the\n"Initial Term"). The term of employment shall be automatically renewed for an additional consecutive 12-month period (the "Extended Term")\nas of the first and every subsequent anniversary of the Effective Date, unless and until either party provides written notice to the other party\nin\naccordance with Section 10 hereof not less than 90 days before such anniversary date that such party is terminating the term of employment\nunder this Agreement ("Non-Renewal"), which termination shall be effective as of the end of such Initial Term or Extended Term, as the case\nmay be, or until such term of employment is otherwise sooner terminated as hereinafter set forth. Such Initial Term and all such Extended Terms\nare collectively referred to herein as the "Employment Period." A notice of Non-Renewal given by either party to this Agreement shall not be\ndeemed\na\ntermination\nof\nthe\nEmployee's\nemployment\nfor\npurposes\nof\nSection\n9\nof\nthis\nAgreement\nunless\notherwise\nexpressly\nprovided\nin\nsuch\nnotice of Non-Renewal. The Company's obligations under Section 9 hereof shall survive the expiration or termination of the Employment\nPeriod.\n3. Position and Duties. The Employee shall initially serve as the General Manager/Vice President of the Company. The Employee\nacknowledges that the Company may, at its sole discretion, change the Employee's title, job duties and responsibilities and reporting as the\nCompany sees fit in its sole discretion. In any role in which the Employee is employed with the Company, the Employee shall render executive,\npolicy and other management services to the Company of the type customarily performed by persons serving in such capacity. The Employee\nshall initially report to the President of the Enterprise Business Unit of the Company unless otherwise determined by the Company. The\nEmployee shall also perform such other duties with the Company and with any Subsidiary as the CEO of the Company or the Board may from\ntime to time reasonably determine and assign to the Employee. The Employee shall devote the Employee's reasonable best efforts and\nsubstantially full business time to the performance of the Employee's duties and the advancement of the business and affairs of the Company.\nThe Employee agrees that during the Employment Period he or she will not be entitled to additional compensation for serving as a member of the\nboard of directors of the Company or any Subsidiary if he or she is elected to serve thereon.\n4. Place of Performance. In connection with the Employee's employment by the Company, the Employee shall be based at the offices of\nthe Company in Atlanta, Georgia, except as otherwise agreed by the Employee and the Company and except for reasonable travel on Company\nbusiness.\n5. Compensation and Benefits; Stock Options.\n(a) Base Salary. During the Employment Period, the Company shall pay to the Employee an annual base salary (the "Base Salary") at\nthe rate of $200,000.00 per year. The Base Salary will be reviewed annually and may be increased at the discretion of the Company. The Base\nSalary shall be payable semi-monthly or in such other installments as shall be consistent with the Company's payroll procedures.\n(b) Annual Bonus. The Employee will be eligible to receive an annual bonus, payable no later than the end of the first fiscal quarter of\neach calendar year during the Employment Period (pro-rated for any period that is less than 12 months) of up to $200,000.00 for such calendar\nyear, based on the attainment of specific Company and individual performance targets as may be assigned by the Company annually.\n(c) Benefits. During the Employment Period, the Employee will be entitled to participate in any fringe benefit welfare benefit plan of\nthe Company (on the same terms as provided to other employees of the Company), including any plan providing for employee stock purchases,\npension or retirement income, retirement savings, employee stock ownership, deferred compensation or medical, prescription, dental, disability,\nemployee life, group life, accidental death or travel accident insurance benefits that the Company may adopt for the benefit of employees, in\naccordance with the terms of such plan. Nothing in this Agreement shall restrict the right of the Company to change insurance carriers and to\nadopt, amend, terminate or modify employee benefit plans and arrangements at any time and without the consent of the Employee.\n(d) Stock Options. The Company may grant options to purchase the stock of the Company to the Employee in accordance with the\nterms of the Company's stock option plans.\n(e) Vacation; Holidays. The Employee shall be entitled to all public holidays observed by the Company and to annual vacation for such\nnumber of days as may be determined by the Company, and otherwise in accordance with the applicable vacation policies for senior executives\nof the Company, which shall be taken at a reasonable time or times.\n(f) Withholding Taxes and Other Deductions. To the extent required by law, the Company shall withhold from any payments due\nEmployee under this Agreement any applicable federal, state or local taxes and such other deductions as are prescribed by law or Company\npolicy or are otherwise authorized by the Employee.\n6. Expenses. The Employee is expected and is authorized to incur reasonable expenses in the performance of his duties hereunder. The\nCompany shall reimburse the Employee for all such expenses in accordance with the Company's expense reimbursement policy, upon periodic\npresentation by the Employee of an itemized account, including reasonable substantiation, of such expenses.\n7. Confidentiality, Non-Disclosure and Non-Competition Agreement.\nConcurrently with the execution of this Agreement, the parties are entering into an Employee Covenants Agreement (the "Related\nAgreement").\n8. Termination of Employment.\n(a) Permitted Terminations. The Employee's employment hereunder may be terminated during the Employment Period under the\nfollowing circumstances:\ni.\nDeath. The Employee's employment hereunder shall terminate upon the Employee's death;\nii. By the Company.. The Company may terminate the Employee's employment:\na.\nIf the Employee shall have been substantially unable to perform the Employee's material duties hereunder by reason of illness,\nphysical or mental disability or other similar incapacity, which inability shall continue for three consecutive\nmonths (provided, that until such termination, the Employee shall continue to receive his compensation and benefits hereunder,\nreduced by any benefits payable to him or her under any disability insurance policy or plan applicable to him or her); or\nb.\nFor Cause;\niii. By the Employee. The Employee may terminate his employment for any reason or for no reason.\n(b) Termination. Any termination of the Employee's employment by the Company or the Employee (other than because of the\nEmployee's death) shal be communicated by written Notice of Termination to the other party hereto in accordance with Section 10 hereof. For\npurposes of this Agreement, a "Notice of Termination" shall mean a notice which shall indicate the specific termination provision in this\nAgreement relied upon, if any, and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of\nthe Employee's employment under the provision so indicated. Termination of the Employee's employment shall take effect on the Date of\nTermination.\n9. Compensation Upon Termination or Change in Control.\n(a) Death. If the Employee's employment is terminated during the Employment Period as a result of the Employee's death, the\nCompany shall pay to the Employee's estate, or as may be directed by the legal representatives of such estate, the Employee's Base Salary due\nthrough the Date of Termination, a pro rata portion of the annual bonus that would have been payable for the calendar year of termination\nif\nthe\nEmployee's employment had not terminated (calculated based upon actual results through the Date of Termination and based upon budget for the\nremainder of the period and pro rated for the portion of the year during which the Employee was employed) and all other unpaid amounts, if any,\nto\nwhich the Employee is entitled as of the Date of Termination, at the time such payments are due, and the Company shall have no further\nobligation to the Employee under this Agreement.\n(b) Disability.. If the Company terminates the Employee's employment during the Employment Period because of the Employee's\ndisability pursuant to Section 8(a)(ii)(A) hereof, the Company shall pay the Employee the Employee's Base Salary due through the Date of\nTermination, a pro rata portion of the annual bonus that would have been payable for the calendar year of termination if the Employee's\nemployment had not terminated (calculated based upon actual results through the Date of Termination and based upon budget for the remainder\nof the period and pro rated for the portion of the year during which the Employee was employed) and all other unpaid amounts, if any, to which\nthe Employee is entitled as of the Date of Termination, at the time such payments are due, and the Company shall have no further obligations to\nthe Employee under this Agreement; provided, that payments so made to the Employee with respect to any period that the Employee is\nsubstantially unable to perform the Employee's material duties hereunder by reason of illness, physical or mental illness or other similar\nincapacity shall be reduced by the sum of the amounts, if any, payable to the Employee by reason of such disability, at or prior to the time of any\nsuch payment, under any disability insurance policy or benefit plan and which amounts have not previously been applied to reduce any such\npayment.\n(c) Termination by the Company. for Cause or by the Employee without Good Reason. If, during the Employment Period, the Company\nterminates the Employee's employment for Cause pursuant to Section 8(a)(ii)(B) hereof or the Employee terminates his employment without\nGood Reason, the Company shall pay the Employee the Employee's Base Salary due through the Date of Termination, and all other unpaid\namounts,\nif\nany,\nto\nwhich\nthe\nEmployee\nis\nentitled\nas\nof\nthe\nDate\nof\nTermination,\nat\nthe\ntime\nsuch\npayments\nare\ndue,\nand\nthe\nCompany\nshall\nhave\nno further obligations to the Employee under this Agreement. In the event that the Company intends to terminate the Employee for Cause, the\nEmployee shall have a reasonable opportunity, together with his counsel, to be heard before the Board of Directors of the Company before such\ntermination.\n(d) Termination by the Company without Cause or by the Employee with Good Reason. Subject to Section 9(e) below, if the Company\nterminates the Employee's employment during the Employment Period other than for Cause, disability or death pursuant to Section 8(a)(i) or\n(ii) hereof or the Employee terminates employment hereunder with Good Reason, the Company shall (i) pay the Employee the\nEmployee's Base Salary due through the Date of Termination, a pro rata portion of the annual bonus that would have been payable for the\ncalendar year of termination if the Employee's employment had not terminated (calculated based upon actual results through the Date of\nTermination and based upon budget for the remainder of the period and pro rated for the portion of the year during which the Employee was\nemployed) and all other unpaid amounts, if any, to which the Employee is entitled as of the Date of Termination, at the time such payments are\ndue, (ii) pay, during the 12-month period commencing on the Date of Termination (the "Severance Period"), to the Employee an aggregate\namount equal to Employee's Base Salary, payable in equal installments on the Company's regular salary payment dates, (iii) shall continue\nin\neffect during the Severance Period the employee benefits provided to the Employee under Section 5(c) hereof immediately before the Date of\nTermination (except to that, to the extent such benefits are provided pursuant to a qualified plan under Section 401(a) of the Code, the Company\nshall provide a substantially equivalent nonqualified benefit) and (iv) if such termination occurs within two years after a Change in Control (or\nbefore a Change in Control has occurred, but after the Company has commenced negotiations of a transaction that results in a Change in\nControl), shall cause all of the outstanding options then held by the Employee to purchase stock of the Company to be fully vested and\nexercisable; provided, notwithstanding anything herein to the contrary, the provision for acceleration of options described in this paragraph will\nnot apply to any options, restricted stock, SAR or other awards approved by the S1 Board of Directors and/or granted to Employee on or about\nNovember 1, 2006; provided further, that no notice of Non-Renewa shall be deemed to be a termination of the Employee's employment for such\npurposes unless otherwise expressly provided in such notice of Non-Renewal. As a condition precedent to the receipt of the foregoing payments\nand benefits, if requested by the Company, the Employee shall enter into an agreement with the Company confirming the Company's right to\ncontinued performance by the Employee of the Employee's obligations under the Related Agreement during the period following termination of\nthe Employee's employment.\n(e) Limitation on Parachute Payments. Notwithstanding any other provision of this Agreement or of any other agreement, contract, or\nunderstanding heretofore or hereafter entered into by the Employee with the Company or any subsidiary or affiliate, except an agreement,\ncontract, or understanding hereafter entered into that expressly modifies or excludes application of this paragraph (an "Other Agreement"), and\nnotwithstanding any formal or informal plan or other arrangement for the direct or indirect provision of compensation to the Employee\n(including groups or classes of participants or beneficiaries of which the Employee is a member), whether or not such compensation is deferred,\nis in cash, or is in the form of a benefit to or for the Employee (a "Benefit Arrangement"), if the Employee is a "disqualified individual," as\ndefined\nin\nSection\n280G(c)\nof\nthe\nCode,\nno\npayment\nor\nbenefit\nshall\nbe\nmade\nor\nprovided\nto\nthe\nEmployee\nor\nbecome\nvested,\nexercisable\nor\npayable, as applicable, (i) to the extent that such payment, right to exercise, vesting, or other benefit, taking into account all other payments,\nrights, or benefits to or for the Employee, or becoming vested, exercisable or payable, as the case may be, under this Agreement, all Other\nAgreements and all Benefit Arrangements, would cause any such payment, right to exercise, vesting or other benefit to which the Employee is or\nwould be entitled under this Agreement to be considered a "parachute payment" within the meaning of Section 280G(b)(2) of the Code as then in\neffect (a "Parachute Payment") and (ii) if, as a result of receiving a Parachute Payment, the aggregate after-tax amounts received by the\nEmployee under this Agreement, all Other Agreements, and all Benefit Arrangements would be less than the maximum after-tax amount that\ncould be received by the Employee without causing any such payment, right to exercise, vesting or other benefit to be considered a Parachute\nPayment. In the event that the receipt of any such payment, right to exercise, vesting, or other benefit under this Agreement, in conjunction with\nall\nother\nrights,\npayments,\nor\nbenefits\nto\nor\nfor\nthe\nEmployee\nunder\nany\nOther\nAgreement\nor\nany\nBenefit\nArrangement\nwould\ncause\nthe\nEmployee\nto be considered to have received a Parachute Payment under this Agreement that would have the effect of decreasing the after-tax amount\nreceived by the Employee as described in clause (ii) of the preceding sentence, then the Employee shall have the right, in the Employee's sole\ndiscretion,\nto\ndesignate\nthose\nrights,\npayments\nor\nbenefits\n(or\nthe\nvesting\nor\nexercisability\nthereof)\nunder\nthis\nAgreement,\nany\nOther\nAgreements\nand any Benefit Arrangements that should be reduced or eliminated so as to avoid having the right, payment or benefit to the Employee (or the\nvesting or exercisability thereof) under this Agreement be deemed to be a Parachute Payment. All determinations required to be made under this\nSection 9(e), including whether and when a reduction in rights, payments or benefits (or the vesting or exercisability thereof) is required and the\namount of such reduction and the assumptions to be utilized in arriving at such determination, shall be made by PricewaterhouseCoopers LLP or\nsuch other certified public accounting firm reasonably acceptable to the Company as may be designated by the Employee in writing (the\n"Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Employee within 15 business days of the\nreceipt of notice from the Employee or the Company. In the event that the Accounting Firm is serving as accountant or auditor for the Company\nor any individual, entity or group effecting a change in the ownership or effective control of the Company (within the meaning of Section 280G\nof the Code), the Employee shall appoint another nationally recognized\naccounting firm that is reasonably acceptable to the Company to make the determinations required hereunder (which accounting firm shall then\nbe referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any\ndetermination by the Accounting Firm shall be binding upon the Company and the Employee.\n(f) Liquidated Damages. The parties acknowledge and agree that damages which will result to the Employee for termination by the\nCompany without Cause or other breach of this Agreement by the Company shall be extremely difficult or impossible to establish or prove, and\nagree that the amounts payable to the Employee under Section 9(d) hereof (the "Severance Payments") shall constitute liquidated damages for\nany breach of this Agreement by the Company through the Date of Termination. The Employee agrees that, except for such other payments and\nbenefits to which the Employee may be entitled as expressly provided by the terms of this Agreement or any applicable benefit plan, such\nliquidated damages shall be in lieu of all other claims that the Employee may make by reason of termination of his employment or any such\nbreach of this Agreement and that, as a condition to receiving the Severance Payments, the Employee will execute a release of claims in a form\nreasonably satisfactory to the Company.\n10. Notices. All notices, demands, requests, or other communications which may be or are required to be given, served, or sent by any\nparty\nto any other party pursuant to this Agreement shall be in writing and shall be hand delivered, sent by overnight courier or mailed by first-\nclass, registered or certified mail, return receipt requested, postage prepaid, or transmitted by telegram, telecopy or telex, addressed as follows:\n(i) If to the Company:\nS1 Corporation\n3500 Lenox Road\nSuite 200\nAtlanta, GA 30326\nFax: 404 923 6717\nAttn: Chief Legal Officer\nwith a copy (which shall not constitute notice) to:\nStuart G. Stein\nHogan & Hartson, L.L.P.\n555 13th Street, N.W.\nWashington, D.C. 20004-1190\nFax: 202/637-5910\n(ii) If to the Employee:\nEach party may designate by notice in writing a new address to which any notice, demand, request or communication may thereafter be so\ngiven, served or sent. Each notice, demand, request, or communication which shall be hand delivered, sent, mailed or telecopied in the manner\ndescribed above, or which shall be delivered to a telegraph company, shall be deemed sufficiently given, served, sent, received or delivered for\nall purposes at such time as it is delivered to the addressee (with the return receipt, the delivery receipt, or (with respect to a telecopy) the\nanswerback being deemed conclusive, but not exclusive, evidence of such delivery) or at such time as delivery is refused by the addressee upon\npresentation.\n11. Severability.. The invalidity or unenforceability of any one or more provisions of this Agreement shall not affect the validity or\nenforceability of the other provisions of this Agreement, which shall remain in full force and effect.\n12. Survival. It is the express intention and agreement of the parties hereto that the provisions of Sections 9, 10, 11, 13, 17 and 20 hereof\nand this Section 12 shall survive the termination of employment of the Employee. In addition, all obligations of the Company to make payments\nhereunder shall survive any termination of this Agreement on the terms and conditions set forth herein.\n13. Assignment. The rights and obligations of the parties to this Agreement shall not be assignable or delegable, except that (i) in the event\nof the Employee's death, the personal representative or legatees or distributees of the Employee's estate, as the case may be, shall have the right\nto receive any amount owing and unpaid to the Employee hereunder and (ii) the rights and obligations of the Company hereunder shall be\nassignable and delegable in connection with any subsequent merger, consolidation, sale of all or substantially all of the assets or stock of the\nCompany\nor\nsimilar\ntransaction\ninvolving\nthe\nCompany\nor\na\nsuccessor\ncorporation.\nThe\nCompany\nshall\nrequire\nany\nsuccessor\nto\nthe\nCompany\nto\nexpressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to\nperform it if no such succession had taken place.\n14. Binding Effect. Subject to any provisions hereof restricting assignment, this Agreement shall be binding upon the parties hereto and\nshall inure to the benefit of the parties and their respective heirs, devisees, executors, administrators, legal representatives, successors and\nassigns.\n15. Amendment; Waiver. This Agreement shall not be amended, altered or modified except by an instrument in writing duly executed by\nthe parties hereto. Neither the waiver by either of the parties hereto of a breach of or a default under any of the provisions of this Agreement, nor\nthe failure of either of the parties, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or\nprivilege hereunder, shall thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any such\nprovisions, rights or privileges hereunder.\n16. Headings. Section and subsection headings contained in this Agreement are inserted for convenience of reference only, shall not be\ndeemed to be a part of this Agreement for any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the\nprovisions hereof.\n17. Governing Law. This Agreement, the rights and obligations of the parties hereto, and any claims or disputes relating thereto, shall be\ngoverned by and construed in accordance with the laws of the State of Delaware (but not including any choice of law rule thereof\nthat\nwould\ncause the laws of another jurisdiction to apply).\n18. Entire Agreement. This Agreement constitutes the entire agreement between the parties respecting the employment of the Employee,\nthere being no representations, warranties or commitments except as set forth herein.\n19. Counterparts. This Agreement may be executed in two counterparts, each of which shall be an original and all of which shall be\ndeemed to constitute one and the same instrument.\n20. Definitions.\n"Accounting Firm" is defined in Section 9(e) above.\n"Agreement" means this Employment Agreement.\n"Base Salary." is defined in Section 5(a) above.\n"Benefit Arrangement" is defined in Section 9(e) above.\n"Board" means the board of directors of the Company.\n"Cause" means (i) the indictment by a grand jury or conviction of a felony or a crime involving moral turpitude (excluding a traffic\nviolation not involving any period of incarceration) or the willful commission of any other act or omission involving dishonesty or fraud with\nrespect to, and materially adversely\naffecting the business affairs of, the Company or any of its Subsidiaries or any of their customers or suppliers, (ii) conduct tending to bring the\nCompany or any of its Subsidiaries into public disgrace or disrepute that is determined by the Company to cause or be reasonably likely to cause\nsubstantial injury to the business and operations of the Company or such Subsidiary, (iii) substantial and repeated failure to perform duties,\nincluding but not limited to achieving quarterly goals, of the office held by the Employee as reasonably directed by the Company (other than any\nsuch failure resulting from the Employee's incapacity due to injury or illness), and such failure is not cured within 30 days after the Employee\nreceives written notice thereof from the Company that specifically identifies the manner in which the Company believes the Employee has not\nsubstantially performed his duties, (iv) gross negligence or willful misconduct with respect to the Company or any of its Subsidiaries that causes\nsubstantial and material injury to the business and operations of the Company or such Subsidiary or (v) any material breach of the Related\nAgreement. For purposes of this provision, no act or failure to act, on the part of the Employee, shall be considered "willful" unless it is done,\nor\nomitted to be done, by the Employee in bad faith or without reasonable belief that the Employee's action or omission was in the best interests\nof\nthe Company. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or based upon advice of\ncounsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Employee in good faith and in the best\ninterests of the Company.\n"Change in Control" means the earliest to occur of the following: (i) any person (other than a corporation (a "Holding Company") all of\nthe common stock of which is owned, immediately after the transaction, by persons who owned more than 50 percent of the voting shares of the\nCompany immediately before the transaction) becomes the beneficial owner of 50 percent or more of the total number of voting shares of the\nCompany; (ii) any person (other than the persons named as proxies solicited on behalf of the Board) holds revocable or irrevocable proxies, as to\nthe election or removal of two or more directors of the Company, for more than 50 percent of the total number of voting shares of the Company;\n(iii) any person (other than a Holding Company) has commenced a tender or exchange offer, or entered into an agreement or received an option,\nto acquire beneficial ownership of more than 50 percent of the total number of voting shares of the Company; (iv) there is a sale or other transfer\nof all or substantially all of the assets of the Company other than to a Holding Company or a corporation controlled by the Company or (v) as the\nresult of, or in connection with, any cash tender or exchange offer, merger, or other business combination, sale of assets or contested election, or\nany combination of the foregoing transactions, the persons who were directors of the Company before such transaction shall cease to constitute\nat\nleast a majority of the Board or any successor corporation. In the event that the Company (or any successor entity) becomes a subsidiary of a\nHolding Company, references to the Company in the preceding sentence shall be deemed to be references to the Holding Company.\nNotwithstanding the foregoing, a "Change in Control" will not be deemed to have occurred under clauses (ii) or (iii) above if within 30 days of\nsuch action, the Board (by a two-thirds affirmative vote of the directors in office before such action occurred) makes a determination that such\naction does not and is not likely to constitute a change in control of the Company. For purposes of this definition, a "person" includes an\nindividual, corporation, partnership, trust, association, joint venture, pool, syndicate, unincorporated organization, joint-stock company, or similar\norganization or group acting in concert. A person for these purposes shall be deemed to be a beneficial owner as that term is used in Rule 13d-3\nunder the Securities Exchange Act of 1934, as amended.\n"Code" means the Internal Revenue Code of 1986, as amended.\n"Company." means S1 Corporation and its successors and assigns.\n"Date of Termination" means (i) if the Employee's employment is terminated by the Employee's death, the date of the Employee's\ndeath; (ii) if the Employee's employment is terminated because of the Employee's disability pursuant to Section 8(a)(ii)(A) hereof, 30 days after\nNotice of Termination, provided that the Employee shall not have returned to the performance of the Employee's duties on a full-time basis\nduring such 30-day period; (iii) if the Employee's employment is terminated by the Company for Cause pursuant to Section 8(a)(ii)(B) hereof\nor\nby the Employee pursuant to Section 8(a)(iii) hereof, the date specified in the Notice of Termination; or (iv) if the Employee's employment is\nterminated during the Employment Period other than pursuant to Section 8(a), the date on which Notice of Termination is given.\n"Effective Date" means December 1, 2006.\n"Employment Period" is defined in Section 2 above.\n"Employee" means Neil Underwood\n"Good Reason" means (i) the Company's failure to perform or observe any of the material terms or provisions of this Agreement, and\nthe continued failure of the Company to cure such default within 30 days after written demand for performance has been given to the Company\nby the Employee, which demand shall describe specifically the nature of such alleged failure to perform or observe such material terms or\nprovisions; (ii) a change in the Employee's reporting, duties and/or job title where there is no reduction in the Employee's Base Salary or Annual\nBonus potential shall not be determined to be Good Reason under this Agreement; (iii) any requirement by the Company without the written\nconsent of the Employee that the Employee relocate to a place more than 50 miles from Atlanta, Georgia to perform his duties hereunder; or\n(iv) the failure of the Company to obtain the assumption of the Company's obligations under this Agreement by a successor as contemplated by\nSection 13 of this Agreement.\n"Initial Term" is defined in Section 2 above.\n"Non-Renewal" is defined in Section 2 above.\n"Notice of Termination" is defined in Section 8(b) above.\n"Other Agreement" is defined in Section 9(e) above.\n"Parachute Payment" is defined in Section 9(e) above.\n"Related Agreement" is defined in Section 7 above.\n"Severance Period" is defined in Section 9(d) above.\n"Subsidiary." means any corporation of which the Company owns securities having a majority of the ordinary voting power in electing\nthe board of directors directly or through one or more subsidiaries and any partnership, limited liability company or other entity in which the\nCompany or any subsidiary owns a controlling interest.\nIN WITNESS WHEREOF, the undersigned have duly executed and delivered this Agreement, or have caused this Agreement to be duly\nexecuted and delivered on their behalf, as of the Effective Date.\nS1 CORPORATION\nBy: /s/ Johann Dreyer\nPresident and Chief Executive Officer\nTHE EMPLOYEE:\n/s/ Neil Underwood\nCONFIDENTIALITY, NON-DISCLOSURE\nAND NON-SOLICITATION AGREEMENT\nIn consideration and as a condition of my employment by S1 Corporation, a Delaware corporation (the "Company", which term shall also\ninclude any subsidiaries and divisions of S1 Corporation), I hereby agree with the Company as follows:\n1. Nondisclosure and Use of Proprietary Information.\n(a) I represent and warrant that: (i) I am not subject to any legal or contractual duty or agreement that would prevent me from performing\nmy duties for the Company or complying with this Agreement, and I am not in breach of any legal or contractual duty or agreement, including\nany agreement concerning trade secrets or confidential information owned by any other party.\n(b) I will not: use, disclose, or reverse engineer the Trade Secrets or the Confidential Information, except as authorized in writing by the\nCompany; (ii) during my employment with the Company, use, disclose, or reverse engineer (A) any confidential information or trade secrets of\nany former employer or third party, or (B) any works of authorship developed in whole or in part by me during any former employment or for\nany other party, unless authorized in writing by the former employer or third party; or (iii) upon my resignation or termination, (A) retain Trade\nSecrets or Confidential Information, including any copies existing in any form (including electronic form) which are in my possession or control,\nor (B) destroy, delete, or alter the Trade Secrets or Confidential Information without the Company's written consent.\n(c) The obligations under this Agreement shall (i) with regard to the Trade Secrets, remain in effect as long as the information constitutes a\ntrade secret under applicable law; and (ii) with regard to the Confidential Information, remain in effect during the Restricted Period.\n(d) The confidentiality, property, and proprietary rights protections available in this Agreement are in addition to, and not exclusive of, any\nand all other rights to which the Company is entitled under federal and state law, including, but not limited to, rights provided under copyright\nlaws, trade secret and confidential information laws, and laws concerning fiduciary duties.\n(e) For purposes of this Agreement, the following definitions shall apply:\n(i) "Confidentia Information" means (a) information of the Company, to the extent not considered a Trade Secret under applicable law,\nthat (i) relates to the business of the Company, (ii) possesses an element of value to the Company, (iii) is not generally known to the Company's\ncompetitors, and (iv) would damage the Company if disclosed, and (b) information of any third party provided to the Company which the\nCompany is obligated to treat as confidential. Confidential Information includes, but is not limited to, (i) future business plans, (ii) the\ncomposition, description, schematic or design of products, future products or equipment of the Company, (iii) communication systems, audio\nsystems, system designs and related documentation, (iv) advertising or marketing plans, (v) information regarding independent contractors,\nemployees, clients and customers of the Company, and (vi) information concerning the Company's financial structure and methods and\nprocedures\nof\noperation.\nConfidential\nInformation\nshall\nnot\ninclude\nany\ninformation\nthat\n(a)\nis\nor\nbecomes\ngenerally\navailable\nto\nthe\npublic\nother\nthan as a result of an unauthorized disclosure, (b) has been independently developed and disclosed by others without violating this Agreement\nor\nthe legal rights of any party, or (c) otherwise enters the public domain through lawful means.\n(ii) "Restricted Period" means the time period during my employment with the Company, and for one (1) year after my employment\nwith the Company ends.\n(iii) "Trade Secrets" means information of the Company, and its licensors, suppliers, clients and customers, without regard to form,\nincluding, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a\ndrawing, a process, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers which is not commonly\nknown\nby or available to the public and which information (i) derives economic value, actual or potential, from not being generally known to, and not\nbeing readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of\nefforts that are reasonable under the circumstances to maintain its secrecy.\n2. Assignment of Developments.\n(a) I understand that my employment duties may include inventing in areas directly or indirectly related to the business of the Company or\nto a line of business that the Company may reasonably be interested in pursuing. All Work Product shall constitute work made for hire. If (i) any\nof the Work Product may not be considered work made for hire, or (ii) ownership of all right, title, and interest in and to the Work Product will\nnot vest exclusively in the Company, then, without further consideration, I assign all presently-existing Work Product to the Company, and agree\nto assign, and automatically assign, all future Work Product to the Company.\n(b) The Company will have the right to obtain and hold in its own name copyrights, patents, design registrations and continuations thereof,\nproprietary database rights, trademarks, rights of publicity, and any other protection available in the Work Product. At the Company's request, I\nagree to perform, during or after my employment with the Company, any acts to transfer, perfect and defend the Company's ownership of the\nWork Product, including, but not limited to: (i) executing all documents (including a formal assignment to the Company) for filing an application\nor registration for protection of the Work Product (an "Application"), (ii) explaining the nature of the Work Product to persons designated by the\nCompany, (iii) reviewing Applications and other related papers, or (iv) providing any other assistance reasonably required for the orderly\nprosecution of Applications. I agree to provide the Company with a written description of any Work Product in which I am involved (solely or\njointly with others) and the circumstances surrounding the creation of such Work Product.\n(c) During my employment and after my employment with the Company ends, I grant to the Company an irrevocable, nonexclusive,\nworldwide, royalty-free license to: (i) make, use, sell, copy, perform, display, distribute, or otherwise utilize copies of the Licensed Materials,\n(ii) prepare, use and distribute derivative works based upon the Licensed Materials, and (iii) authorize others to do the same. I will notify\nthe\nCompany in writing of any Licensed Materials I deliver to the Company.\n(d) For purposes of this Agreement, the following definitions shall apply:\n(i)\n"Licensed Materials" means any materials that I utilize for the benefit of the Company, or deliver to the Company or the Company's\ncustomers, which (i) do not constitute Work Product, (ii) are created by me or of which I am otherwise in lawful possession, and (iii) I may\nlawfully utilize for the benefit of, or distribute to, the Company or the Company's customers.\n(ii) "Work Product" means (a) any data, databases, materials, documentation, computer programs, inventions (whether or not\npatentable), designs, and/or works of authorship, including but not limited to, discoveries, ideas, concepts, properties, formulas, compositions,\nmethods, programs, procedures, systems, techniques, products, improvements, innovations, writings, pictures, audio, video, images of me, and\nartistic works, and (b) any subject matter protected under patent, copyright, proprietary database, trademark, trade secret, rights of publicity,\nconfidential information, or other property rights, including all worldwide rights therein, that is or was conceived, created or developed in whole\nor\nin\npart\nby\nme\nwhile\nemployed\nby\nthe\nCompany\nand\nthat\neither\n(i)\nis\ncreated\nwithin\nthe\nscope\nof\nmy\nemployment,\n(ii)\nis\nbased\non,\nresults\nfrom,\nor is suggested by any work performed within the scope of my employment and is directly or indirectly related to the business of the Company\nor\na line of business that the Company may reasonably be interested in pursuing, (iii) has been or will be paid for by the Company, or (iv) was\ncreated or improved in whole or in part by using the Company's time, resources, data, facilities, or equipment.\n3. Non-Solicitation.\n(a) During the Restricted Period, I will not, directly or indirectly, solicit, recruit or induce any Employee to (i) terminate his employment\nrelationship with the Company, or (ii) work for any other person or entity engaged in the Business.\n(b) During the Restricted Period, I will not directly or indirectly solicit any Customer of the Company for the purpose of providing any\ngoods or services competitive with the Business. The restrictions set forth in this Section apply only to Customers with whom I had Contact.\n(c) For purposes of this Agreement, the following definitions shall apply:\n(i) "Business" shall mean the business of developing, designing, and implementing computer applications that allow banks, brokerage\nfirms, and insurance companies to enable their customers to access financial information and conduct transactions over multiple delivery\nchannels.\n(ii)\n"Contact" means any interaction between a Customer and me which (i) takes place in an effort to establish,\nmaintain,\nand/or\nfurther\na business relationship on behalf of the Company and (ii) occurs during the last year of my employment with the Company (or during my\nemployment if employed less than a year).\n(iii) "Customer" means any person or entity to whom the Company has sold its products or services, or solicited to sell its products or\nservices.\n(iv) "Employee" means any person who (i) is employed by the Company at the time my employment with the Company ends, (ii) was\nemployed by the Company during the last year of my employment with the Company (or during my employment if employed less than a year),\nor (iii) is employed by the Company during the Restricted Period.\n4. Equitable Relief.\nIf I breach this Agreement, I agree that: (a) the Company would suffer irreparable harm; (b) it would be difficult to determine damages,\nand money damages alone would be an inadequate remedy for the injuries suffered by the Company; and (c) if the Company seeks injunctive\nrelief to enforce this Agreement, I will waive and will not (i) assert any defense that the Company has an adequate remedy at law with respect to\nthe breach, (ii) require that the Company submit proof of the economic value of any Trade Secret or Confidential Information, or (iii) require the\nCompany to post a bond or any other security. Nothing contained in this Agreement shall limit the Company's right to any other remedies at law\nor in equity.\n5. No Right to Continued Employment.\nI understand that this Agreement does not create a contract of employment or a contract for benefits. Except as set forth in a separate\nagreement duly authorized and executed by the Company, my employment relationship with the Company is at-will. This means that at either my\noption or the Company's option, my employment may be terminated at any time, with or without cause or notice.\n6. Attorneys' Fees\nIn the event of litigation relating to this Agreement, the Company shall, if it is the prevailing party, be entitled to recover attorneys' fees\nand costs of litigation in addition to all other remedies available at law or in equity.\n7. Waivers.\nAny waiver by the Company of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any\nsubsequent breach of such provision or any other provision hereof.\n8. Acknowledgment;. Severability..\nI acknowledge that the restrictions contained in this Agreement are reasonable and necessary to protect the legitimate business interests of\nthe Company, and will not impair or infringe upon my right to work or earn a living in the event my employment with the Company ends. The\nprovisions of this Agreement are severable. If any provision is determined to be invalid, illegal, or unenforceable, in whole or in part, the\nremaining provisions and any partially enforceable provisions shall remain in full force and effect.\n9. Survival of Obligations.\nI\nunderstand that I shall not have the right to assign my rights or obligations under this Agreement. My obligations under this Agreement\nshall survive the termination of my employment regardless of the manner of, or reason for, such termination.\n10. Assignment.\nThis Agreement shall be assignable to, and shall inure to the benefit of, the Company's successors and assigns, including, without\nlimitation, successors through merger, name change, consolidation, or sale of a majority of the Company's stock or assets, and shall be binding\nupon me.\n11. Governing Law.\nThe laws of the State of Delaware shall govern this Agreement. If Delaware's conflict of law rules would apply another state's laws, the\nCompany and I agree that Delaware law shall still govern.\n12. Entire Agreement.\nThis Agreement constitutes the entire agreement between the Company and me concerning the subject matter of this Agreement. This\nAgreement supersedes any prior communications, agreements or understandings, whether oral or written, between the Company and me relating\nto the subject matter of this Agreement.\n13. Consent to Jurisdiction.\nI\nagree that any claim arising out of or relating to this Agreement shall be brought in a state or federal court of competent jurisdiction in\nAtlanta, Georgia. I consent to the personal jurisdiction of the state and/or federal courts located in Georgia. I waive (a) any objection to\njurisdiction or venue, or (b) any defense claiming lack of jurisdiction or improper venue, in any action brought in such courts.\nIN WITNESS WHEREOF, the undersigned has executed this Confidentiality, Non-Disclosure and Non-Solicitation Agreement as of the\n1st day of December, 2006.\n/s/ Neil Underwood\nSignature\nName: Neil Underwood\nAddress\nAgreed to and Accepted:\nS1 CORPORATION\nBy: /s/ Johann Dreyer\nPresident and Chief Executive Officer	EX-10.19 2 g12049exv10w19.htm EX-10.19 EMPLOYMENT AGREEMENT & CONFIDENTIALITY\nAGREEMENT/ NEIL UNDERWROOD\nExhibit 10.19\nEMPLOYMENT AGREEMENT\nThis EMPLOYMENT AGREEMENT (“Agreement”) is entered into as of this 1st day of December 2006 (the “Effective Date”), by and\nbetween S1 Corporation, a Delaware corporation (the “Company”), and Neil Underwood, individual (the “Employee”).\nWHEREAS, the Company and the Employee desire to enter into this Employment Agreement to set out the terms and conditions for the\nemployment relationship of the Employee with the Company from and after the Effective Date; and\nWHEREAS, the board of directors of the Company (the “Board”) has approved and authorized the Company’s execution, delivery and\nperformance of this Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and other good and valuable consideration,\nthe receipt and sufficiency of which hereby are acknowledged, the parties hereto agree as follows:\n1. Employment Agreement. On the terms and conditions set forth in this Agreement, the Company agrees to employ the Employee and the\nEmployee agrees to be employed by the Company for the Employment Period set forth in Section 2 hereof and in the position and with the duties\nset forth in Section 3 hereof. Terms used herein with initial capitalization not otherwise defined are defined in Section 20 below.\n2. Term. The initial term of employment under this Agreement shall be for a three-year period commencing on the Effective Date (the\n“Initial Term”). The term of employment shall be automatically renewed for an additional consecutive 12-month period (the “Extended Term”)\nas of the first and every subsequent anniversary of the Effective Date, unless and until either party provides written notice to the other party in\naccordance with Section 10 hereof not less than 90 days before such anniversary date that such party is terminating the term of employment\nunder this Agreement (“Non-Renewal”), which termination shall be effective as of the end of such Initial Term or Extended Term, as the case\nmay be, or until such term of employment is otherwise sooner terminated as hereinafter set forth. Such Initial Term and all such Extended Terms\nare collectively referred to herein as the “Employment Period.” A notice of Non-Renewal given by either party to this Agreement shall not be\ndeemed a termination of the Employee’s employment for purposes of Section 9 of this Agreement unless otherwise expressly provided in such\nnotice of Non-Renewal. The Company’s obligations under Section 9 hereof shall survive the expiration or termination of the Employment\nPeriod.\n3. Position and Duties. The Employee shall initially serve as the General Manager/Vice President of the Company. The Employee\nacknowledges that the Company may, at its sole discretion, change the Employee’s title, job duties and responsibilities and reporting as the\nCompany sees fit in its sole discretion. In any role in which the Employee is employed with the Company, the Employee shall render executive,\npolicy and other management services to the Company of the type customarily performed by persons serving in such capacity. The Employee\nshall initially report to the President of the Enterprise Business Unit of the Company unless otherwise determined by the Company. The\nEmployee shall also perform such other duties with the Company and with any Subsidiary as the CEO of the Company or the Board may from\ntime to time reasonably determine and assign to the Employee. The Employee shall devote the Employee’s reasonable best efforts and\nsubstantially full business time to the performance of the Employee’s duties and the advancement of the business and affairs of the Company.\nThe Employee agrees that during the Employment Period he or she will not be entitled to additional compensation for serving as a member of the\nboard of directors of the Company or any Subsidiary if he or she is elected to serve thereon.\n4. Place of Performance. In connection with the Employee’s employment by the Company, the Employee shall be based at the offices of\nthe Company in Atlanta, Georgia, except as otherwise agreed by the Employee and the Company and except for reasonable travel on Company\nbusiness.\n5. Compensation and Benefits; Stock Options.\n(a) Base Salary. During the Employment Period, the Company shall pay to the Employee an annual base salary (the “Base Salary”) at\nthe rate of $200,000.00 per year. The Base Salary will be reviewed annually and may be increased at the discretion of the Company. The Base\nSalary shall be payable semi-monthly or in such other installments as shall be consistent with the Company’s payroll procedures.\n(b) Annual Bonus. The Employee will be eligible to receive an annual bonus, payable no later than the end of the first fiscal quarter of\neach calendar year during the Employment Period (pro-rated for any period that is less than 12 months) of up to $200,000.00 for such calendar\nyear, based on the attainment of specific Company and individual performance targets as may be assigned by the Company annually.\n(c) Benefits. During the Employment Period, the Employee will be entitled to participate in any fringe benefit welfare benefit plan of\nthe Company (on the same terms as provided to other employees of the Company), including any plan providing for employee stock purchases,\npension or retirement income, retirement savings, employee stock ownership, deferred compensation or medical, prescription, dental, disability,\nemployee life, group life, accidental death or travel accident insurance benefits that the Company may adopt for the benefit of employees, in\naccordance with the terms of such plan. Nothing in this Agreement shall restrict the right of the Company to change insurance carriers and to\nadopt, amend, terminate or modify employee benefit plans and arrangements at any time and without the consent of the Employee.\n(d) Stock Options. The Company may grant options to purchase the stock of the Company to the Employee in accordance with the\nterms of the Company’s stock option plans.\n(e) Vacation; Holidays. The Employee shall be entitled to all public holidays observed by the Company and to annual vacation for such\nnumber of days as may be determined by the Company, and otherwise in accordance with the applicable vacation policies for senior executives\nof the Company, which shall be taken at a reasonable time or times.\n(f) Withholding Taxes and Other Deductions. To the extent required by law, the Company shall withhold from any payments due\nEmployee under this Agreement any applicable federal, state or local taxes and such other deductions as are prescribed by law or Company\npolicy or are otherwise authorized by the Employee.\n6. Expenses. The Employee is expected and is authorized to incur reasonable expenses in the performance of his duties hereunder. The\nCompany shall reimburse the Employee for all such expenses in accordance with the Company’s expense reimbursement policy, upon periodic\npresentation by the Employee of an itemized account, including reasonable substantiation, of such expenses.\n7. Confidentiality, Non-Disclosure and Non-Competition Agreement.\nConcurrently with the execution of this Agreement, the parties are entering into an Employee Covenants Agreement (the “Related\nAgreement”).\n8. Termination of Employment.\n(a) Permitted Terminations. The Employee’s employment hereunder may be terminated during the Employment Period under the\nfollowing circumstances:\ni. Death. The Employee’s employment hereunder shall terminate upon the Employee’s death;\nii. By the Company. The Company may terminate the Employee’s employment:\na.\nIf the Employee shall have been substantially unable to perform the Employee’s material duties hereunder by reason of illness,\nphysical or mental disability or other similar incapacity, which inability shall continue for three consecutive\nmonths (provided, that until such termination, the Employee shall continue to receive his compensation and benefits hereunder,\nreduced by any benefits payable to him or her under any disability insurance policy or plan applicable to him or her); or\nb. For Cause;\niii. By the Employee. The Employee may terminate his employment for any reason or for no reason.\n(b) Termination. Any termination of the Employee’s employment by the Company or the Employee (other than because of the\nEmployee’s death) shall be communicated by written Notice of Termination to the other party hereto in accordance with Section 10 hereof. For\npurposes of this Agreement, a “Notice of Termination” shall mean a notice which shall indicate the specific termination provision in this\nAgreement relied upon, if any, and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of\nthe Employee’s employment under the provision so indicated. Termination of the Employee’s employment shall take effect on the Date of\nTermination.\n9. Compensation Upon Termination or Change in Control.\n(a) Death. If the Employee’s employment is terminated during the Employment Period as a result of the Employee’s death, the\nCompany shall pay to the Employee’s estate, or as may be directed by the legal representatives of such estate, the Employee’s Base Salary due\nthrough the Date of Termination, a pro rata portion of the annual bonus that would have been payable for the calendar year of termination if the\nEmployee’s employment had not terminated (calculated based upon actual results through the Date of Termination and based upon budget for the\nremainder of the period and pro rated for the portion of the year during which the Employee was employed) and all other unpaid amounts, if any,\nto which the Employee is entitled as of the Date of Termination, at the time such payments are due, and the Company shall have no further\nobligation to the Employee under this Agreement.\n(b) Disability. If the Company terminates the Employee’s employment during the Employment Period because of the Employee’s\ndisability pursuant to Section 8(a)(ii)(A) hereof, the Company shall pay the Employee the Employee’s Base Salary due through the Date of\nTermination, a pro rata portion of the annual bonus that would have been payable for the calendar year of termination if the Employee’s\nemployment had not terminated (calculated based upon actual results through the Date of Termination and based upon budget for the remainder\nof the period and pro rated for the portion of the year during which the Employee was employed) and all other unpaid amounts, if any, to which\nthe Employee is entitled as of the Date of Termination, at the time such payments are due, and the Company shall have no further obligations to\nthe Employee under this Agreement; provided, that payments so made to the Employee with respect to any period that the Employee is\nsubstantially unable to perform the Employee’s material duties hereunder by reason of illness, physical or mental illness or other similar\nincapacity shall be reduced by the sum of the amounts, if any, payable to the Employee by reason of such disability, at or prior to the time of any\nsuch payment, under any disability insurance policy or benefit plan and which amounts have not previously been applied to reduce any such\npayment.\n(c) Termination by the Company for Cause or by the Employee without Good Reason. If, during the Employment Period, the Company\nterminates the Employee’s employment for Cause pursuant to Section 8(a)(ii)(B) hereof or the Employee terminates his employment without\nGood Reason, the Company shall pay the Employee the Employee’s Base Salary due through the Date of Termination, and all other unpaid\namounts, if any, to which the Employee is entitled as of the Date of Termination, at the time such payments are due, and the Company shall have\nno further obligations to the Employee under this Agreement. In the event that the Company intends to terminate the Employee for Cause, the\nEmployee shall have a reasonable opportunity, together with his counsel, to be heard before the Board of Directors of the Company before such\ntermination.\n(d) Termination by the Company without Cause or by the Employee with Good Reason. Subject to Section 9(e) below, if the Company\nterminates the Employee’s employment during the Employment Period other than for Cause, disability or death pursuant to Section 8(a)(i) or\n(ii) hereof or the Employee terminates employment hereunder with Good Reason, the Company shall (i) pay the Employee the\nEmployee’s Base Salary due through the Date of Termination, a pro rata portion of the annual bonus that would have been payable for the\ncalendar year of termination if the Employee’s employment had not terminated (calculated based upon actual results through the Date of\nTermination and based upon budget for the remainder of the period and pro rated for the portion of the year during which the Employee was\nemployed) and all other unpaid amounts, if any, to which the Employee is entitled as of the Date of Termination, at the time such payments are\ndue, (ii) pay, during the 12-month period commencing on the Date of Termination (the “Severance Period”), to the Employee an aggregate\namount equal to Employee’s Base Salary, payable in equal installments on the Company’s regular salary payment dates, (iii) shall continue in\neffect during the Severance Period the employee benefits provided to the Employee under Section 5(c) hereof immediately before the Date of\nTermination (except to that, to the extent such benefits are provided pursuant to a qualified plan under Section 401(a) of the Code, the Company\nshall provide a substantially equivalent nonqualified benefit) and (iv) if such termination occurs within two years after a Change in Control (or\nbefore a Change in Control has occurred, but after the Company has commenced negotiations of a transaction that results in a Change in\nControl), shall cause all of the outstanding options then held by the Employee to purchase stock of the Company to be fully vested and\nexercisable; provided, notwithstanding anything herein to the contrary, the provision for acceleration of options described in this paragraph will\nnot apply to any options, restricted stock, SAR or other awards approved by the S1 Board of Directors and/or granted to Employee on or about\nNovember 1, 2006; provided further, that no notice of Non-Renewal shall be deemed to be a termination of the Employee’s employment for such\npurposes unless otherwise expressly provided in such notice of Non-Renewal. As a condition precedent to the receipt of the foregoing payments\nand benefits, if requested by the Company, the Employee shall enter into an agreement with the Company confirming the Company’s right to\ncontinued performance by the Employee of the Employee’s obligations under the Related Agreement during the period following termination of\nthe Employee’s employment.\n(e) Limitation on Parachute Payments. Notwithstanding any other provision of this Agreement or of any other agreement, contract, or\nunderstanding heretofore or hereafter entered into by the Employee with the Company or any subsidiary or affiliate, except an agreement,\ncontract, or understanding hereafter entered into that expressly modifies or excludes application of this paragraph (an “Other Agreement”), and\nnotwithstanding any formal or informal plan or other arrangement for the direct or indirect provision of compensation to the Employee\n(including groups or classes of participants or beneficiaries of which the Employee is a member), whether or not such compensation is deferred,\nis in cash, or is in the form of a benefit to or for the Employee (a “Benefit Arrangement”), if the Employee is a “disqualified individual,” as\ndefined in Section 280G(c) of the Code, no payment or benefit shall be made or provided to the Employee or become vested, exercisable or\npayable, as applicable, (i) to the extent that such payment, right to exercise, vesting, or other benefit, taking into account all other payments,\nrights, or benefits to or for the Employee, or becoming vested, exercisable or payable, as the case may be, under this Agreement, all Other\nAgreements and all Benefit Arrangements, would cause any such payment, right to exercise, vesting or other benefit to which the Employee is or\nwould be entitled under this Agreement to be considered a “parachute payment” within the meaning of Section 280G(b)(2) of the Code as then in\neffect (a “Parachute Payment”) and (ii) if, as a result of receiving a Parachute Payment, the aggregate after-tax amounts received by the\nEmployee under this Agreement, all Other Agreements, and all Benefit Arrangements would be less than the maximum after-tax amount that\ncould be received by the Employee without causing any such payment, right to exercise, vesting or other benefit to be considered a Parachute\nPayment. In the event that the receipt of any such payment, right to exercise, vesting, or other benefit under this Agreement, in conjunction with\nall other rights, payments, or benefits to or for the Employee under any Other Agreement or any Benefit Arrangement would cause the Employee\nto be considered to have received a Parachute Payment under this Agreement that would have the effect of decreasing the after-tax amount\nreceived by the Employee as described in clause (ii) of the preceding sentence, then the Employee shall have the right, in the Employee’s sole\ndiscretion, to designate those rights, payments or benefits (or the vesting or exercisability thereof) under this Agreement, any Other Agreements\nand any Benefit Arrangements that should be reduced or eliminated so as to avoid having the right, payment or benefit to the Employee (or the\nvesting or exercisability thereof) under this Agreement be deemed to be a Parachute Payment. All determinations required to be made under this\nSection 9(e), including whether and when a reduction in rights, payments or benefits (or the vesting or exercisability thereof) is required and the\namount of such reduction and the assumptions to be utilized in arriving at such determination, shall be made by PricewaterhouseCoopers LLP or\nsuch other certified public accounting firm reasonably acceptable to the Company as may be designated by the Employee in writing (the\n“Accounting Firm”) which shall provide detailed supporting calculations both to the Company and the Employee within 15 business days of the\nreceipt of notice from the Employee or the Company. In the event that the Accounting Firm is serving as accountant or auditor for the Company\nor any individual, entity or group effecting a change in the ownership or effective control of the Company (within the meaning of Section 280G\nof the Code), the Employee shall appoint another nationally recognized\naccounting firm that is reasonably acceptable to the Company to make the determinations required hereunder (which accounting firm shall then\nbe referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any\ndetermination by the Accounting Firm shall be binding upon the Company and the Employee.\n(f) Liquidated Damages. The parties acknowledge and agree that damages which will result to the Employee for termination by the\nCompany without Cause or other breach of this Agreement by the Company shall be extremely difficult or impossible to establish or prove, and\nagree that the amounts payable to the Employee under Section 9(d) hereof (the “Severance Payments”) shall constitute liquidated damages for\nany breach of this Agreement by the Company through the Date of Termination. The Employee agrees that, except for such other payments and\nbenefits to which the Employee may be entitled as expressly provided by the terms of this Agreement or any applicable benefit plan, such\nliquidated damages shall be in lieu of all other claims that the Employee may make by reason of termination of his employment or any such\nbreach of this Agreement and that, as a condition to receiving the Severance Payments, the Employee will execute a release of claims in a form\nreasonably satisfactory to the Company.\n10. Notices. All notices, demands, requests, or other communications which may be or are required to be given, served, or sent by any\nparty to any other party pursuant to this Agreement shall be in writing and shall be hand delivered, sent by overnight courier or mailed by first-\nclass, registered or certified mail, return receipt requested, postage prepaid, or transmitted by telegram, telecopy or telex, addressed as follows:\n(i) If to the Company:\nS1 Corporation\n3500 Lenox Road\nSuite 200\nAtlanta, GA 30326\nFax: 404 923 6717\nAttn: Chief Legal Officer\nwith a copy (which shall not constitute notice) to:\nStuart G. Stein\nHogan & Hartson, L.L .P.\n555 13th Street, N.W.\nWashington, D.C. 20004-1190\nFax: 202/637-5910\n(ii) If to the Employee:\nEach party may designate by notice in writing a new address to which any notice, demand, request or communication may thereafter be so\ngiven, served or sent. Each notice, demand, request, or communication which shall be hand delivered, sent, mailed or telecopied in the manner\ndescribed above, or which shall be delivered to a telegraph company, shall be deemed sufficiently given, served, sent, received or delivered for\nall purposes at such time as it is delivered to the addressee (with the return receipt, the delivery receipt, or (with respect to a telecopy) the\nanswerback being deemed conclusive, but not exclusive, evidence of such delivery) or at such time as delivery is refused by the addressee upon\npresentation.\n11. Severability. The invalidity or unenforceability of any one or more provisions of this Agreement shall not affect the validity or\nenforceability of the other provisions of this Agreement, which shall remain in full force and effect.\n12. Survival. It is the express intention and agreement of the parties hereto that the provisions of Sections 9, 10, 11, 13, 17 and 20 hereof\nand this Section 12 shall survive the termination of employment of the Employee. In addition, all obligations of the Company to make payments\nhereunder shall survive any termination of this Agreement on the terms and conditions set forth herein.\n13. Assignment. The rights and obligations of the parties to this Agreement shall not be assignable or delegable, except that (i) in the event\nof the Employee’s death, the personal representative or legatees or distributees of the Employee’s estate, as the case may be, shall have the right\nto receive any amount owing and unpaid to the Employee hereunder and (ii) the rights and obligations of the Company hereunder shall be\nassignable and delegable in connection with any subsequent merger, consolidation, sale of all or substantially all of the assets or stock of the\nCompany or similar transaction involving the Company or a successor corporation. The Company shall require any successor to the Company to\nexpressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to\nperform it if no such succession had taken place.\n14. Binding Effect. Subject to any provisions hereof restricting assignment, this Agreement shall be binding upon the parties hereto and\nshall inure to the benefit of the parties and their respective heirs, devisees, executors, administrators, legal representatives, successors and\nassigns.\n15. Amendment; Waiver. This Agreement shall not be amended, altered or modified except by an instrument in writing duly executed by\nthe parties hereto. Neither the waiver by either of the parties hereto of a breach of or a default under any of the provisions of this Agreement, nor\nthe failure of either of the parties, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or\nprivilege hereunder, shall thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any such\nprovisions, rights or privileges hereunder.\n16. Headings. Section and subsection headings contained in this Agreement are inserted for convenience of reference only, shall not be\ndeemed to be a part of this Agreement for any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the\nprovisions hereof.\n17. Governing Law. This Agreement, the rights and obligations of the parties hereto, and any claims or disputes relating thereto, shall be\ngoverned by and construed in accordance with the laws of the State of Delaware (but not including any choice of law rule thereof that would\ncause the laws of another jurisdiction to apply).\n18. Entire Agreement. This Agreement constitutes the entire agreement between the parties respecting the employment of the Employee,\nthere being no representations, warranties or commitments except as set forth herein.\n19. Counterparts. This Agreement may be executed in two counterparts, each of which shall be an original and all of which shall be\ndeemed to constitute one and the same instrument.\n20. Definitions.\n“Accounting Firm” is defined in Section 9(e) above.\n“Agreement” means this Employment Agreement.\n“Base Salary” is defined in Section 5(a) above.\n“Benefit Arrangement” is defined in Section 9(e) above.\n“Board” means the board of directors of the Company.\n“Cause” means (i) the indictment by a grand jury or conviction of a felony or a crime involving moral turpitude (excluding a traffic\nviolation not involving any period of incarceration) or the willful commission of any other act or omission involving dishonesty or fraud with\nrespect to, and materially adversely\naffecting the business affairs of, the Company or any of its Subsidiaries or any of their customers or suppliers, (ii) conduct tending to bring the\nCompany or any of its Subsidiaries into public disgrace or disrepute that is determined by the Company to cause or be reasonably likely to cause\nsubstantial injury to the business and operations of the Company or such Subsidiary, (iii) substantial and repeated failure to perform duties,\nincluding but not limited to achieving quarterly goals, of the office held by the Employee as reasonably directed by the Company (other than any\nsuch failure resulting from the Employee’s incapacity due to injury or illness), and such failure is not cured within 30 days after the Employee\nreceives written notice thereof from the Company that specifically identifies the manner in which the Company believes the Employee has not\nsubstantially performed his duties, (iv) gross negligence or willful misconduct with respect to the Company or any of its Subsidiaries that causes\nsubstantial and material injury to the business and operations of the Company or such Subsidiary or (v) any material breach of the Related\nAgreement. For purposes of this provision, no act or failure to act, on the part of the Employee, shall be considered “willful” unless it is done, or\nomitted to be done, by the Employee in bad faith or without reasonable belief that the Employee’s action or omission was in the best interests of\nthe Company. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or based upon advice of\ncounsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Employee in good faith and in the best\ninterests of the Company.\n“Change in Control” means the earliest to occur of the following: (i) any person (other than a corporation (a “Holding Company”) all of\nthe common stock of which is owned, immediately after the transaction, by persons who owned more than 50 percent of the voting shares of the\nCompany immediately before the transaction) becomes the beneficial owner of 50 percent or more of the total number of voting shares of the\nCompany; (ii) any person (other than the persons named as proxies solicited on behalf of the Board) holds revocable or irrevocable proxies, as to\nthe election or removal of two or more directors of the Company, for more than 50 percent of the total number of voting shares of the Company;\n(iii) any person (other than a Holding Company) has commenced a tender or exchange offer, or entered into an agreement or received an option,\nto acquire beneficial ownership of more than 50 percent of the total number of voting shares of the Company; (iv) there is a sale or other transfer\nof all or substantially all of the assets of the Company other than to a Holding Company or a corporation controlled by the Company or (v) as the\nresult of, or in connection with, any cash tender or exchange offer, merger, or other business combination, sale of assets or contested election, or\nany combination of the foregoing transactions, the persons who were directors of the Company before such transaction shall cease to constitute at\nleast a majority of the Board or any successor corporation. In the event that the Company (or any successor entity) becomes a subsidiary of a\nHolding Company, references to the Company in the preceding sentence shall be deemed to be references to the Holding Company.\nNotwithstanding the foregoing, a “Change in Control” will not be deemed to have occurred under clauses (ii) or (iii) above if within 30 days of\nsuch action, the Board (by a two-thirds affirmative vote of the directors in office before such action occurred) makes a determination that such\naction does not and is not likely to constitute a change in control of the Company. For purposes of this definition, a “person” includes an\nindividual, corporation, partnership, trust, association, joint venture, pool, syndicate, unincorporated organization, joint-stock company, or similar\norganization or group acting in concert. A person for these purposes shall be deemed to be a beneficial owner as that term is used in Rule 13d-3\nunder the Securities Exchange Act of 1934, as amended.\n“Code” means the Internal Revenue Code of 1986, as amended.\n“Company” means S1 Corporation and its successors and assigns.\n“Date of Termination” means (i) if the Employee’s employment is terminated by the Employee’s death, the date of the Employee’s\ndeath; (ii) if the Employee’s employment is terminated because of the Employee’s disability pursuant to Section 8(a)(ii)(A) hereof, 30 days after\nNotice of Termination, provided that the Employee shall not have returned to the performance of the Employee’s duties on a full-time basis\nduring such 30-day period; (iii) if the Employee’s employment is terminated by the Company for Cause pursuant to Section 8(a)(ii)(B) hereof or\nby the Employee pursuant to Section 8(a)(iii) hereof, the date specified in the Notice of Termination; or (iv) if the Employee’s employment is\nterminated during the Employment Period other than pursuant to Section 8(a), the date on which Notice of Termination is given.\n“Effective Date” means December 1, 2006.\n“Employment Period” is defined in Section 2 above.\n“Employee” means Neil Underwood\n“Good Reason” means (i) the Company’s failure to perform or observe any of the material terms or provisions of this Agreement, and\nthe continued failure of the Company to cure such default within 30 days after written demand for performance has been given to the Company\nby the Employee, which demand shall describe specifically the nature of such alleged failure to perform or observe such material terms or\nprovisions; (ii) a change in the Employee’s reporting, duties and/or job title where there is no reduction in the Employee’s Base Salary or Annual\nBonus potential shall not be determined to be Good Reason under this Agreement; (iii) any requirement by the Company without the written\nconsent of the Employee that the Employee relocate to a place more than 50 miles from Atlanta, Georgia to perform his duties hereunder; or\n(iv) the failure of the Company to obtain the assumption of the Company’s obligations under this Agreement by a successor as contemplated by\nSection 13 of this Agreement.\n“Initial Term” is defined in Section 2 above.\n“Non-Renewal” is defined in Section 2 above.\n“Notice of Termination” is defined in Section 8(b) above.\n“Other Agreement” is defined in Section 9(e) above.\n“Parachute Payment” is defined in Section 9(e) above.\n“Related Agreement” is defined in Section 7 above.\n“Severance Period” is defined in Section 9(d) above.\n“Subsidiary” means any corporation of which the Company owns securities having a majority of the ordinary voting power in electing\nthe board of directors directly or through one or more subsidiaries and any partnership, limited liability company or other entity in which the\nCompany or any subsidiary owns a controlling interest.\nIN WITNESS WHEREOF, the undersigned have duly executed and delivered this Agreement, or have caused this Agreement to be duly\nexecuted and delivered on their behalf, as of the Effective Date.\nS1 CORPORATION\nBy: /s/ Johann Dreyer\nPresident and Chief Executive Officer\nTHE EMPLOYEE:\n/s/ Neil Underwood\nCONFIDENTIALITY, NON-DISCLOSURE\nAND NON-SOLICITATION AGREEMENT\nIn consideration and as a condition of my employment by S1 Corporation, a Delaware corporation (the “Company”, which term shall also\ninclude any subsidiaries and divisions of S1 Corporation), I hereby agree with the Company as follows:\n1. Nondisclosure and Use of Proprietary Information.\n(a) I represent and warrant that: (i) I am not subject to any legal or contractual duty or agreement that would prevent me from performing\nmy duties for the Company or complying with this Agreement, and I am not in breach of any legal or contractual duty or agreement, including\nany agreement concerning trade secrets or confidential information owned by any other party.\n(b) I will not: use, disclose, or reverse engineer the Trade Secrets or the Confidential Information, except as authorized in writing by the\nCompany; (ii) during my employment with the Company, use, disclose, or reverse engineer (A) any confidential information or trade secrets of\nany former employer or third party, or (B) any works of authorship developed in whole or in part by me during any former employment or for\nany other party, unless authorized in writing by the former employer or third party; or (iii) upon my resignation or termination, (A) retain Trade\nSecrets or Confidential Information, including any copies existing in any form (including electronic form) which are in my possession or control,\nor (B) destroy, delete, or alter the Trade Secrets or Confidential Information without the Company’s written consent.\n(c) The obligations under this Agreement shall (i) with regard to the Trade Secrets, remain in effect as long as the information constitutes a\ntrade secret under applicable law; and (ii) with regard to the Confidential Information, remain in effect during the Restricted Period.\n(d) The confidentiality, property, and proprietary rights protections available in this Agreement are in addition to, and not exclusive of, any\nand all other rights to which the Company is entitled under federal and state law, including, but not limited to, rights provided under copyright\nlaws, trade secret and confidential information laws, and laws concerning fiduciary duties.\n(e) For purposes of this Agreement, the following definitions shall apply:\n(i) “Confidential Information” means (a) information of the Company, to the extent not considered a Trade Secret under applicable law,\nthat (i) relates to the business of the Company, (ii) possesses an element of value to the Company, (iii) is not generally known to the Company’s\ncompetitors, and (iv) would damage the Company if disclosed, and (b) information of any third party provided to the Company which the\nCompany is obligated to treat as confidential. Confidential Information includes, but is not limited to, (i) future business plans, (ii) the\ncomposition, description, schematic or design of products, future products or equipment of the Company, (iii) communication systems, audio\nsystems, system designs and related documentation, (iv) advertising or marketing plans, (v) information regarding independent contractors,\nemployees, clients and customers of the Company, and (vi) information concerning the Company’s financial structure and methods and\nprocedures of operation. Confidential Information shall not include any information that (a) is or becomes generally available to the public other\nthan as a result of an unauthorized disclosure, (b) has been independently developed and disclosed by others without violating this Agreement or\nthe legal rights of any party, or (c) otherwise enters the public domain through lawful means.\n(ii) “Restricted Period” means the time period during my employment with the Company, and for one (1) year after my employment\nwith the Company ends.\n(iii) “Trade Secrets” means information of the Company, and its licensors, suppliers, clients and customers, without regard to form,\nincluding, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a\ndrawing, a process, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers which is not commonly\nknown\nby or available to the public and which information (i) derives economic value, actual or potential, from not being generally known to, and not\nbeing readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of\nefforts that are reasonable under the circumstances to maintain its secrecy.\n2. Assignment of Developments.\n(a) I understand that my employment duties may include inventing in areas directly or indirectly related to the business of the Company or\nto a line of business that the Company may reasonably be interested in pursuing. All Work Product shall constitute work made for hire. If (i) any\nof the Work Product may not be considered work made for hire, or (ii) ownership of all right, title, and interest in and to the Work Product will\nnot vest exclusively in the Company, then, without further consideration, I assign all presently-existing Work Product to the Company, and agree\nto assign, and automatically assign, all future Work Product to the Company.\n(b) The Company will have the right to obtain and hold in its own name copyrights, patents, design registrations and continuations thereof,\nproprietary database rights, trademarks, rights of publicity, and any other protection available in the Work Product. At the Company’s request, I\nagree to perform, during or after my employment with the Company, any acts to transfer, perfect and defend the Company’s ownership of the\nWork Product, including, but not limited to: (i) executing all documents (including a formal assignment to the Company) for filing an application\nor registration for protection of the Work Product (an “Application”), (ii) explaining the nature of the Work Product to persons designated by the\nCompany, (iii) reviewing Applications and other related papers, or (iv) providing any other assistance reasonably required for the orderly\nprosecution of Applications. I agree to provide the Company with a written description of any Work Product in which I am involved (solely or\njointly with others) and the circumstances surrounding the creation of such Work Product.\n(c) During my employment and after my employment with the Company ends, I grant to the Company an irrevocable, nonexclusive,\nworldwide, royalty-free license to: (i) make, use, sell, copy, perform, display, distribute, or otherwise utilize copies of the Licensed Materials,\n(ii) prepare, use and distribute derivative works based upon the Licensed Materials, and (iii) authorize others to do the same. I will notify the\nCompany in writing of any Licensed Materials I deliver to the Company.\n(d) For purposes of this Agreement, the following definitions shall apply:\n(i) “Licensed Materials” means any materials that I utilize for the benefit of the Company, or deliver to the Company or the Company’s\ncustomers, which (i) do not constitute Work Product, (ii) are created by me or of which I am otherwise in lawful possession, and (iii) I may\nlawfully utilize for the benefit of, or distribute to, the Company or the Company’s customers.\n(ii) “Work Product” means (a) any data, databases, materials, documentation, computer programs, inventions (whether or not\npatentable), designs, and/or works of authorship, including but not limited to, discoveries, ideas, concepts, properties, formulas, compositions,\nmethods, programs, procedures, systems, techniques, products, improvements, innovations, writings, pictures, audio, video, images of me, and\nartistic works, and (b) any subject matter protected under patent, copyright, proprietary database, trademark, trade secret, rights of publicity,\nconfidential information, or other property rights, including all worldwide rights therein, that is or was conceived, created or developed in whole\nor in part by me while employed by the Company and that either (i) is created within the scope of my employment, (ii) is based on, results from,\nor is suggested by any work performed within the scope of my employment and is directly or indirectly related to the business of the Company or\na line of business that the Company may reasonably be interested in pursuing, (iii) has been or will be paid for by the Company, or (iv) was\ncreated or improved in whole or in part by using the Company’s time, resources, data, facilities, or equipment.\n3. Non-Solicitation.\n(a) During the Restricted Period, I will not, directly or indirectly, solicit, recruit or induce any Employee to (i) terminate his employment\nrelationship with the Company, or (ii) work for any other person or entity engaged in the Business.\n(b) During the Restricted Period, I will not directly or indirectly solicit any Customer of the Company for the purpose of providing any\ngoods or services competitive with the Business. The restrictions set forth in this Section apply only to Customers with whom I had Contact.\n(c) For purposes of this Agreement, the following definitions shall apply:\n(i) “Business” shall mean the business of developing, designing, and implementing computer applications that allow banks, brokerage\nfirms, and insurance companies to enable their customers to access financial information and conduct transactions over multiple delivery\nchannels.\n(ii) “Contact” means any interaction between a Customer and me which (i) takes place in an effort to establish, maintain, and/or further\na business relationship on behalf of the Company and (ii) occurs during the last year of my employment with the Company (or during my\nemployment if employed less than a year).\n(iii) “Customer” means any person or entity to whom the Company has sold its products or services, or solicited to sell its products or\nservices.\n(iv) “Employee” means any person who (i) is employed by the Company at the time my employment with the Company ends, (ii) was\nemployed by the Company during the last year of my employment with the Company (or during my employment if employed less than a year),\nor (iii) is employed by the Company during the Restricted Period.\n4. Equitable Relief.\nIf I breach this Agreement, I agree that: (a) the Company would suffer irreparable harm; (b) it would be difficult to determine damages,\nand money damages alone would be an inadequate remedy for the injuries suffered by the Company; and (c) if the Company seeks injunctive\nrelief to enforce this Agreement, I will waive and will not (i) assert any defense that the Company has an adequate remedy at law with respect to\nthe breach, (ii) require that the Company submit proof of the economic value of any Trade Secret or Confidential Information, or (iii) require the\nCompany to post a bond or any other security. Nothing contained in this Agreement shall limit the Company’s right to any other remedies at law\nor in equity.\n5. No Right to Continued Employment.\nI understand that this Agreement does not create a contract of employment or a contract for benefits. Except as set forth in a separate\nagreement duly authorized and executed by the Company, my employment relationship with the Company is at-will. This means that at either my\noption or the Company’s option, my employment may be terminated at any time, with or without cause or notice.\n6. Attorneys’ Fees\nIn the event of litigation relating to this Agreement, the Company shall, if it is the prevailing party, be entitled to recover attorneys’ fees\nand costs of litigation in addition to all other remedies available at law or in equity.\n7. Waivers.\nAny waiver by the Company of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any\nsubsequent breach of such provision or any other provision hereof.\n8. Acknowledgment; Severability.\nI acknowledge that the restrictions contained in this Agreement are reasonable and necessary to protect the legitimate business interests of\nthe Company, and will not impair or infringe upon my right to work or earn a living in the event my employment with the Company ends. The\nprovisions of this Agreement are severable. If any provision is determined to be invalid, illegal, or unenforceable, in whole or in part, the\nremaining provisions and any partially enforceable provisions shall remain in full force and effect.\n9. Survival of Obligations.\nI understand that I shall not have the right to assign my rights or obligations under this Agreement. My obligations under this Agreement\nshall survive the termination of my employment regardless of the manner of, or reason for, such termination.\n10. Assignment.\nThis Agreement shall be assignable to, and shall inure to the benefit of, the Company’s successors and assigns, including, without\nlimitation, successors through merger, name change, consolidation, or sale of a majority of the Company’s stock or assets, and shall be binding\nupon me.\n11. Governing Law.\nThe laws of the State of Delaware shall govern this Agreement. If Delaware’s conflict of law rules would apply another state’s laws, the\nCompany and I agree that Delaware law shall still govern.\n12. Entire Agreement.\nThis Agreement constitutes the entire agreement between the Company and me concerning the subject matter of this Agreement. This\nAgreement supersedes any prior communications, agreements or understandings, whether oral or written, between the Company and me relating\nto the subject matter of this Agreement.\n13. Consent to Jurisdiction.\nI agree that any claim arising out of or relating to this Agreement shall be brought in a state or federal court of competent jurisdiction in\nAtlanta, Georgia. I consent to the personal jurisdiction of the state and/or federal courts located in Georgia. I waive (a) any objection to\njurisdiction or venue, or (b) any defense claiming lack of jurisdiction or improper venue, in any action brought in such courts.\nIN WITNESS WHEREOF, the undersigned has executed this Confidentiality, Non-Disclosure and Non-Solicitation Agreement as of the\n1st day of December, 2006.\n/s/ Neil Underwood\nSignature\nName: Neil Underwood\nAddress\nAgreed to and Accepted:\nS1 CORPORATION\nBy: /s/ Johann Dreyer\nPresident and Chief Executive Officer
fa68f25f20889428cccedbcb6e280281.pdf	effective_date jurisdiction party term	lPage7\nAppendix A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) dated as of September 10, 2008 is entered in by and between Apollo Medical Holdings,\nInc. (the “Company”) and Noel DeWinter (the “Employee”), and sets forth the terms and conditions on which Company is willing to disclose\ncertain material non-public information about the Company.\n1.\nPurpose. In connection with his retention as a Employee to the Company pursuant to an agreement dated as of even date (the\n“Employee Agreement”), the Company may disclose to the Employee certain confidential technical and business information which the\nCompany requires the Employee to treat as confidential.\n2.\nDefinition. “Confidential Information” means any information disclosed to the Employee by the Company, either directly or\nindirectly in writing, orally or by inspection of tangible objects, including without limitation documents, prototypes and forecasted financial\ninformation. Confidential Information may also include information disclosed to the Company by third parties. Confidential Information shall\nnot, however, include any information which the Employee can establish by written documentation (i) was publicly known and made generally\navailable in the public domain prior to the time of disclosure to the Employee by the Company; (ii) becomes publicly known and made generally\navailable after disclosure to the Employee by the Company through no action or inaction of the Employee; (iii) is in the possession of the\nEmployee, without confidentiality restrictions, at the time of disclosure by the Company as shown by the Employee's files and records\nimmediately prior to the time of disclosure; (iv) is developed independently of the Confidential Information, as shown by written records\nprepared contemporaneously with such independent development; or (v) is disclosed pursuant to the requirement of a United States government\nagency or judicial body, provided that the Employee shall provide reasonable advice notice thereof to enable the Company to seek a protective\norder or otherwise prevent such disclosure.\n3.\nNon-use and Non-disclosure. The Employee agrees not to use any Confidential Information for any purpose except within the\nproper scope of his duties pursuant to the Employment Agreement. The Employee agrees not to disclose any Confidential Information to third\nparties, except to those individuals who, with the prior written consent of the Company, are designated as authorized to receive such Confidential\nInformation in order for the Employee to perform his duties and obligation sunder the Employment Agreement. The Employee agrees that each\nthird party receiving any Confidential Information will enter into a separate Non-Disclosure Agreement with the Company.\n4.\nMaintenance of Confidentiality. The Employee agrees that it shall take all commercially reasonable measures to protect the\nsecrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, the Employee shall take at\nleast those measures that the Employee takes to protect its own confidential information of a similar nature and shall have its employees or\nadvisors who have access to Confidential Information sign a non-use and non-disclosure agreement in content substantially similar to the\nprovisions hereof, prior to any disclosure of Confidential Information to such employees. The Employee shall immediately notify the Company\nin the event of any unauthorized use or disclosure of any Confidential Information.\nlPage8\n5.\nNo Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. COMPANY MAKES NO WARRANTIES,\nEXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.\n6.\nReturn of Materials. All documents and other tangible objects containing or representing Confidential Information which are\nin the possession of the Employee shall be and remain the property of the Company and shall be promptly returned to the Company upon request\nfor any reason or for no reason.\n7.\nWork Made for Hire.\n(a)\nEmployee and/or designates of the Employee shall promptly and fully inform the Company of, and disclose to the Company ,\nany and all ideas, processes, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, fictitious business\nnames, technology, patents, know-how, trade secrets, computer programs, original works of authorship, formulae, concepts, themes, inventions,\ndesigns, creations, new works, derivative works and discoveries, and all applications, improvements, rights and claims related to any the\nforegoing, and all other intellectual property, proprietary rights and work product, whether or not patentable or copyrightable, registered or\nunregistered or domestic or foreign, and whether or not relating to a published work, that Employee develops, makes, creates, conceives or\nreduces to practice during the term of the Employment Agreement, whether alone or in collaboration with others (collectively, “Invention\nIdeas”). Employee hereby assigns to the Company exclusively in perpetuity throughout the world all right, title and interest (choate or inchoate)\nin (i) the Invention Ideas, (ii) all precursors, portions and work in progress with respect thereto and all inventions, works of authorship, mask\nworks, technology, information, know-how, materials and tools relating thereto or to the development, support or maintenance thereof and (iii) all\ncopyrights, patent rights, trade secret rights, trademark rights, mask works rights, sui generis database rights and all other intellectual and\nindustrial property rights of any sort and all business, contract rights, causes of action, and goodwill in, incorporated or embodied in, used to\ndevelop, or related to any of the foregoing (collectively "Intellectual Property").. All copyrightable Invention Ideas are intended by Employee to\nbe a “work-made-for-hire” by Employee for Company and owned by Company pursuant to Section 201 (b) of Title 17 of the United States Code.\n(b) Employee shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all\nsuch other agreements, certificates, instruments and documents, as the Company may reasonably request in order to obtain patent or copyright\nregistration on all Invention Ideas and Intellectual Property , and shall execute and deliver all documents, instruments and agreements, including\nthe formal execution of an assignment of copyright and/or patent application or issued patent, and do all things necessary or requested by the\nCompany, in order to enable Company to ultimately and finally obtain and enforce full and exclusive title to all Invention Ideas and Intellectual\nProperty and all rights assigned pursuant to this Section 7. Employee hereby appoints the Company as Employee’s irrevocable attorney-in-fact\nfor the purpose of executing and delivering all such documents, instruments and agreements, and performing all such acts, with the same legal\nforce and effect as if executed and delivered and taken by Employee.\n(c)\nIf for any reason the foregoing assignment is determined to be unenforceable Employee grants to Company a perpetual,\nirrevocable, worldwide, royalty-free, exclusive, sub-licensable right and license to exploit and exercise all such Invention Ideas and Intellectual\nProperty.\nlPage9\n(d)\nBecause of the difficulty of establishing when Employee first conceives of or develops Intellectual Property, proprietary\nrights or work product or whether such Intellectual Property, proprietary rights or work product results from access to Company’s confidential\nand proprietary information or equipment, facilities or data, Employee agrees that any Intellectual Property, proprietary rights and work product\nshall be presumed to be an Invention Idea if it is conceived, developed, used, sold, exploited or reduced to practice by Employee or with the aid\nof Employee within one year after the normal termination of Employee’s employment with Company. Employee can rebut that presumption if\nEmployee proves that the intellectual property, proprietary rights and work product (i) was first conceived or developed after termination of\nEmployee’s employment with and by Company; (ii) was conceived or developed entirely on Employee’s own time without using Company’s\nequipment, supplies, facilities or confidential and proprietary information; and (iii) did not result from any work performed by Employee for or\non behalf of Company.\n(e)\nEmployee acknowledges that there is no intellectual property, proprietary right or work product that Employee desires not to\nbe deemed Invention Ideas or Intellectual Property and thus to exclude from the above provisions of this Agreement. To the best of Employee’s\nknowledge, there is no other existing contract in conflict with this Agreement or any other contract to assign ideas, processes, trademarks, service\nmarks, inventions, technology, computer programs, original works of authorship, designs, formulas, discoveries, patents or copyrights that is now\nin existence between Employee and any other person or entity.\n(f)\nThis Section 7 shall not operate to require Employee to assign to Company any of Employee’s rights to inventions, intellectual\nproperties or work products that would not be assignable under the provisions of California Labor Code Section 2870. Employee represents and\nwarrants to Company that this paragraph constitutes Company’s written notification to Employee of the provisions of Section 2870 of the\nCalifornia Labor Code, and Employee represents and warrants to Company that Employee has reviewed Section 2870 of the California Labor\nCode.\n8.\nUnfair Competition and Protection of Proprietary Information.\n(a)\nEmployee shall not at any time (including after Employee’s employment with Company terminates) divulge, furnish or make\naccessible to anyone any of Company’s Proprietary Information, or use in any way any of Company’s Proprietary Information other than as\nreasonably required to perform Employee’s duties under this Agreement. Employee shall not undertake any other acts or omissions that would\nreduce the value to Company of Company’s Proprietary Information. The restrictions on Employee’s use of Company’s Proprietary Information\nshall not apply to knowledge or information that Employee can prove is part of the public domain through no fault of Employee. Employee\nagrees that such restrictions are fair and reasonable.\n(b)\nEmployee agrees that Company’s Proprietary Information constitutes a unique and valuable asset of Company that Company\nacquired at great time and expense, and which is secret and confidential and will only be available to or communicated to Employee in\nconfidence in the course of Employee’s provision of services to Company. Employee also agrees that any disclosure or other use of Company’s\nProprietary Information other than for Company’s sole benefit would be wrongful, would constitute unfair competition and will cause irreparable\nand incalculable harm to Company and to its subsidiaries, affiliates and divisions. In addition to all other remedies Company may have, it shall\nhave the right to seek and obtain appropriate injunctive and other equitable relief, including emergency relief, to prevent any violations of this\nSection 8.\nl Page 10\n(c)\nEmployee agrees that Company’s employees constitute a valuable asset of Company. Employee agrees that Employee shall\nnot, during the Term and for a period of two years thereafter, directly or indirectly, for Employee or on behalf of any other person or entity, solicit\nany person who was an employee of or Employee to Company (at any time while Employee is performing any services for Company, or at any\ntime within twelve months prior to or after such solicitation) for a competing business or otherwise induce or attempt to induce any such persons\nto terminate their employment or relationship with Company or otherwise to disrupt or interfere, or attempt to disrupt or interfere, with\nCompany’s employment or relationships with such persons. Employee agrees that any such solicitation, inducement or interference would be\nwrongful and would constitute unfair competition, and will cause irreparable and incalculable harm to Company. Further, Employee shall not\nengage in any other unfair competition with Company. Employee agrees that such restrictions are fair and reasonable.\n(d)\nEmployee recognizes and agrees that Employee has no expectation of privacy with respect to Company’s\ntelecommunications, networking or information processing systems (including stored computer files, e-mail messages and voice messages), and\nthat Employee’s activity, and any files or messages, on or using any of those systems may be monitored at any time without notice.\n(e)\nAs used in this Agreement, “Company’s Proprietary Information” means any knowledge, trade secrets (including “trade\nsecrets” as defined in Section 3426.1 of the California Civil Code), Invention Ideas, proprietary rights or proprietary information, intangible\nassets or property, and other intellectual property (whether or not copyrighted or copyrightable or patented or patentable), information and\nmaterials (including processes, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, technology,\npatents, patent applications and works of authorship), in whatever form, including electronic form, and all goodwill relating or appurtenant\nthereto, owned or licensed by Company or any of its subsidiaries, affiliates or divisions, or directly or indirectly useful in any aspect of the\nbusiness of Company or its subsidiaries, affiliates or divisions, whether or not marked as confidential or proprietary and whether developed by\nEmployee, by Company or its subsidiaries, affiliates or divisions or by others. Without limiting the foregoing, Company’s Proprietary\nInformation includes (a) the names, locations, practices and requirements of any of Company’s customers, prospective customers, vendors,\nsuppliers and personnel and any other persons having a business relationship with Company; (b) confidential or secret development or research\nwork of Company or its subsidiaries, affiliates or divisions, including information concerning any future or proposed services or products; (c)\nCompany’s accounting, cost, revenue and other financial records and documents and the contents thereof; (d) Company’s documents, contracts,\nagreements, correspondence and other similar business records; (e) confidential or secret designs, software code, know how, processes, formulae,\nplans and devices; and (f) any other confidential or secret aspect of the business of Company or its subsidiaries, affiliates or divisions.\n9.\nEmployee’s Activities. During the term of the Employment Agreement, neither Employee nor any person or entity acting with\nor on Employee’s behalf, nor any person or entity under the control of or affiliated with Employee, shall, directly or indirectly, in any way\nCompete with the Company. Employee agrees that, if Employee has any business to transact on Employee’s own account that is similar to the\nbusiness entrusted to Employee by Company, Employee shall notify Company and always give preference to Company’s business. Employee\nagrees that such restrictions are fair and reasonable. For purposes of this Agreement, “Compete” means doing any of the following: (i) selling\nproducts or services to any person or entity that was or is (at any time, including during the Term and the period when the provisions of this\nparagraph are in effect) a client or customer of Company (or its subsidiaries, affiliates or divisions) or on a list of prospective clients or customers\nof Company, or calling on, soliciting, taking away or accepting any such person or entity as a client or customer, or any attempt or offer to do any\nof the foregoing; (ii) entering into, or any attempt or offer to enter into, any business, enterprise or activity that is in any way similar to or\notherwise competitive with the business that the Company (or its subsidiaries, affiliates or divisions) conducted at any time during the Term or\nany time the provisions of this paragraph are in effect, or (iii) directly or indirectly assisting any person or entity to take or attempt or offer to\ntake any of the actions described in the foregoing clauses (i) or (ii).\nl Page 11\n10.\nRemedies.\n(a)\nThe Employee agrees that any violation or threatened violation of this Agreement will cause irreparable injury to the\nCompany, entitling the Company to obtain injunctive relief in addition to all legal remedies at its disposal.\n(b)\nIn addition to all remedies available hereunder, at law or in equity, if Employee breaches any provision of Section 8 of this\nAgreement, Company shall have the right to invoke any and all remedies provided under the California Uniform Trade Secrets Act (California\nCivil Code §§3426, et seq.) or other statutes or common law remedies of similar effect.\n(c)\nThe remedies provided to Company in this Section 10 are cumulative, and not exclusive, of any other remedies that may be\navailable to Company at law or in equity.\n11.\nNo License. Nothing in this Agreement is intended to grant any rights to the Employee under any patent, copyright or other\nproprietary rights of the Company, nor shall this Agreement grant the Employee any rights in or to Confidential Information except as expressly\nset forth herein.\n12.\nTerm. This Agreement shall survive the term of the Employment Agreement and shall continue until such time as all\nConfidential Information disclosed hereunder becomes publicly known and made generally available through no action or inaction of the\nEmployee.\n13.\nMiscellaneous. This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns. This\nAgreement shall be governed by the laws of the State of California, without reference to conflict of laws principles. This document contains the\nentire agreement between the parties with respect to the subject matter hereof. Any failure to enforce any provision of this Agreement shall not\nconstitute a waiver thereof or of any other provision hereof. This Agreement may not be amended, nor any obligation waived, except by a\nwriting signed by both parties hereto.\nIN WITNESS WHEREOF, the parties hereto have executed or caused their duly authorized officers to execute this Agreement as of the\ndate first above written.\nAPOLLO MEDICAL HOLDINGS, INC.\n(“COMPANY”)\nBy /s/ Warren Hosseinion\nWarren Hosseinion\nTitle: President and Chief Executive Officer\n“EMPLOYEE”\n/s/ Noel DeWinter\nNoel DeWinter	1 Page 7\nAppendix A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) dated as of September 10, 2008 is entered in by and between Apollo Medical Holdings,\nInc. (the “Company”) and Noel DeWinter (the “Employee”), and sets forth the terms and conditions on which Company is willing to disclose\ncertain material non-public information about the Company.\n1. Purpose. In connection with his retention as a Employee to the Company pursuant to an agreement dated as of even date (the\n“Employee Agreement”), the Company may disclose to the Employee certain confidential technical and business information which the\nCompany requires the Employee to treat as confidential.\n2. Definition. “Confidential Information” means any information disclosed to the Employee by the Company, either directly or\nindirectly in writing, orally or by inspection of tangible objects, including without limitation documents, prototypes and forecasted financial\ninformation. Confidential Information may also include information disclosed to the Company by third parties. Confidential Information shall\nnot, however, include any information which the Employee can establish by written documentation (i) was publicly known and made generally\navailable in the public domain prior to the time of disclosure to the Employee by the Company; (ii) becomes publicly known and made generally\navailable after disclosure to the Employee by the Company through no action or inaction of the Employee; (iii) is in the possession of the\nEmployee, without confidentiality restrictions, at the time of disclosure by the Company as shown by the Employee's files and records\nimmediately prior to the time of disclosure; (iv) is developed independently of the Confidential Information, as shown by written records\nprepared contemporaneously with such independent development; or (v) is disclosed pursuant to the requirement of a United States government\nagency or judicial body, provided that the Employee shall provide reasonable advice notice thereof to enable the Company to seek a protective\norder or otherwise prevent such disclosure.\n3. Non-use and Non-disclosure. The Employee agrees not to use any Confidential Information for any purpose except within the\nproper scope of his duties pursuant to the Employment Agreement. The Employee agrees not to disclose any Confidential Information to third\nparties, except to those individuals who, with the prior written consent of the Company, are designated as authorized to receive such Confidential\nInformation in order for the Employee to perform his duties and obligation sunder the Employment Agreement. The Employee agrees that each\nthird party receiving any Confidential Information will enter into a separate Non-Disclosure Agreement with the Company.\n4. Maintenance of Confidentiality. The Employee agrees that it shall take all commercially reasonable measures to protect the\nsecrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, the Employee shall take at\nleast those measures that the Employee takes to protect its own confidential information of a similar nature and shall have its employees or\nadvisors who have access to Confidential Information sign a non-use and non-disclosure agreement in content substantially similar to the\nprovisions hereof, prior to any disclosure of Confidential Information to such employees. The Employee shall immediately notify the Company\nin the event of any unauthorized use or disclosure of any Confidential Information.\n1 Page 8\n5. No Warranty. ALL. CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. COMPANY MAKES NO WARRANTIES,\nEXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.\n6. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which are\nin the possession of the Employee shall be and remain the property of the Company and shall be promptly returned to the Company upon request\nfor any reason or for no reason.\n7. Work Made for Hire.\n@) Employee and/or designates of the Employee shall promptly and fully inform the Company of, and disclose to the Company ,\nany and all ideas, processes, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, fictitious business\nnames, technology, patents, know-how, trade secrets, computer programs, original works of authorship, formulae, concepts, themes, inventions,\ndesigns, creations, new works, derivative works and discoveries, and all applications, improvements, rights and claims related to any the\nforegoing, and all other intellectual property, proprietary rights and work product, whether or not patentable or copyrightable, registered or\nunregistered or domestic or foreign, and whether or not relating to a published work, that Employee develops, makes, creates, conceives or\nreduces to practice during the term of the Employment Agreement, whether alone or in collaboration with others (collectively, “Invention\nIdeas”). Employee hereby assigns to the Company exclusively in perpetuity throughout the world all right, title and interest (choate or inchoate)\nin (i) the Invention Ideas, (ii) all precursors, portions and work in progress with respect thereto and all inventions, works of authorship, mask\nworks, technology, information, know-how, materials and tools relating thereto or to the development, support or maintenance thereof and (iii) all\ncopyrights, patent rights, trade secret rights, trademark rights, mask works rights, sui generis database rights and all other intellectual and\nindustrial property rights of any sort and all business, contract rights, causes of action, and goodwill in, incorporated or embodied in, used to\ndevelop, or related to any of the foregoing (collectively "Intellectual Property").. All copyrightable Invention Ideas are intended by Employee to\nbe a “work-made-for-hire” by Employee for Company and owned by Company pursuant to Section 201 (b) of Title 17 of the United States Code.\n(b) Employee shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all\nsuch other agreements, certificates, instruments and documents, as the Company may reasonably request in order to obtain patent or copyright\nregistration on all Invention Ideas and Intellectual Property , and shall execute and deliver all documents, instruments and agreements, including\nthe formal execution of an assignment of copyright and/or patent application or issued patent, and do all things necessary or requested by the\nCompany, in order to enable Company to ultimately and finally obtain and enforce full and exclusive title to all Invention Ideas and Intellectual\nProperty and all rights assigned pursuant to this Section 7. Employee hereby appoints the Company as Employee’s irrevocable attorney-in-fact\nfor the purpose of executing and delivering all such documents, instruments and agreements, and performing all such acts, with the same legal\nforce and effect as if executed and delivered and taken by Employee.\n(0 If for any reason the foregoing assignment is determined to be unenforceable Employee grants to Company a perpetual,\nirrevocable, worldwide, royalty-free, exclusive, sub-licensable right and license to exploit and exercise all such Invention Ideas and Intellectual\nProperty.\n1 Page 9\n(d) Because of the difficulty of establishing when Employee first conceives of or develops Intellectual Property, proprietary\nrights or work product or whether such Intellectual Property, proprietary rights or work product results from access to Company’s confidential\nand proprietary information or equipment, facilities or data, Employee agrees that any Intellectual Property, proprietary rights and work product\nshall be presumed to be an Invention Idea if it is conceived, developed, used, sold, exploited or reduced to practice by Employee or with the aid\nof Employee within one year after the normal termination of Employee’s employment with Company. Employee can rebut that presumption if\nEmployee proves that the intellectual property, proprietary rights and work product (i) was first conceived or developed after termination of\nEmployee’s employment with and by Company; (ii) was conceived or developed entirely on Employee’s own time without using Company’s\nequipment, supplies, facilities or confidential and proprietary information; and (iii) did not result from any work performed by Employee for or\non behalf of Company.\n(e) Employee acknowledges that there is no intellectual property, proprietary right or work product that Employee desires not to\nbe deemed Invention Ideas or Intellectual Property and thus to exclude from the above provisions of this Agreement. To the best of Employee’s\nknowledge, there is no other existing contract in conflict with this Agreement or any other contract to assign ideas, processes, trademarks, service\nmarks, inventions, technology, computer programs, original works of authorship, designs, formulas, discoveries, patents or copyrights that is now\nin existence between Employee and any other person or entity.\n(3] This Section 7 shall not operate to require Employee to assign to Company any of Employee’s rights to inventions, intellectual\nproperties or work products that would not be assignable under the provisions of California Labor Code Section 2870. Employee represents and\nwarrants to Company that this paragraph constitutes Company’s written notification to Employee of the provisions of Section 2870 of the\nCalifornia Labor Code, and Employee represents and warrants to Company that Employee has reviewed Section 2870 of the California Labor\nCode.\n8. Unfair Competition and Protection of Proprietary Information.\n@) Employee shall not at any time (including after Employee’s employment with Company terminates) divulge, furnish or make\naccessible to anyone any of Company’s Proprietary Information, or use in any way any of Company’s Proprietary Information other than as\nreasonably required to perform Employee’s duties under this Agreement. Employee shall not undertake any other acts or omissions that would\nreduce the value to Company of Company’s Proprietary Information. The restrictions on Employee’s use of Company’s Proprietary Information\nshall not apply to knowledge or information that Employee can prove is part of the public domain through no fault of Employee. Employee\nagrees that such restrictions are fair and reasonable.\n(b) Employee agrees that Company’s Proprietary Information constitutes a unique and valuable asset of Company that Company\nacquired at great time and expense, and which is secret and confidential and will only be available to or communicated to Employee in\nconfidence in the course of Employee’s provision of services to Company. Employee also agrees that any disclosure or other use of Company’s\nProprietary Information other than for Company’s sole benefit would be wrongful, would constitute unfair competition and will cause irreparable\nand incalculable harm to Company and to its subsidiaries, affiliates and divisions. In addition to all other remedies Company may have, it shall\nhave the right to seek and obtain appropriate injunctive and other equitable relief, including emergency relief, to prevent any violations of this\nSection 8.\n1 Page 10\n(0 Employee agrees that Company’s employees constitute a valuable asset of Company. Employee agrees that Employee shall\nnot, during the Term and for a period of two years thereafter, directly or indirectly, for Employee or on behalf of any other person or entity, solicit\nany person who was an employee of or Employee to Company (at any time while Employee is performing any services for Company, or at any\ntime within twelve months prior to or after such solicitation) for a competing business or otherwise induce or attempt to induce any such persons\nto terminate their employment or relationship with Company or otherwise to disrupt or interfere, or attempt to disrupt or interfere, with\nCompany’s employment or relationships with such persons. Employee agrees that any such solicitation, inducement or interference would be\nwrongful and would constitute unfair competition, and will cause irreparable and incalculable harm to Company. Further, Employee shall not\nengage in any other unfair competition with Company. Employee agrees that such restrictions are fair and reasonable.\n(d) Employee recognizes and agrees that Employee has no expectation of privacy with respect to Company’s\ntelecommunications, networking or information processing systems (including stored computer files, e-mail messages and voice messages), and\nthat Employee’s activity, and any files or messages, on or using any of those systems may be monitored at any time without notice.\n(e) As used in this Agreement, “Company’s Proprietary Information” means any knowledge, trade secrets (including “trade\nsecrets” as defined in Section 3426.1 of the California Civil Code), Invention Ideas, proprietary rights or proprietary information, intangible\nassets or property, and other intellectual property (whether or not copyrighted or copyrightable or patented or patentable), information and\nmaterials (including processes, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, technology,\npatents, patent applications and works of authorship), in whatever form, including electronic form, and all goodwill relating or appurtenant\nthereto, owned or licensed by Company or any of its subsidiaries, affiliates or divisions, or directly or indirectly useful in any aspect of the\nbusiness of Company or its subsidiaries, affiliates or divisions, whether or not marked as confidential or proprietary and whether developed by\nEmployee, by Company or its subsidiaries, affiliates or divisions or by others. Without limiting the foregoing, Company’s Proprietary\nInformation includes (a) the names, locations, practices and requirements of any of Company’s customers, prospective customers, vendors,\nsuppliers and personnel and any other persons having a business relationship with Company; (b) confidential or secret development or research\nwork of Company or its subsidiaries, affiliates or divisions, including information concerning any future or proposed services or products; (c)\nCompany’s accounting, cost, revenue and other financial records and documents and the contents thereof; (d) Company’s documents, contracts,\nagreements, correspondence and other similar business records; (e) confidential or secret designs, software code, know how, processes, formulae,\nplans and devices; and (f) any other confidential or secret aspect of the business of Company or its subsidiaries, affiliates or divisions.\n9. Employee’s Activities. During the term of the Employment Agreement, neither Employee nor any person or entity acting with\nor on Employee’s behalf, nor any person or entity under the control of or affiliated with Employee, shall, directly or indirectly, in any way\nCompete with the Company. Employee agrees that, if Employee has any business to transact on Employee’s own account that is similar to the\nbusiness entrusted to Employee by Company, Employee shall notify Company and always give preference to Company’s business. Employee\nagrees that such restrictions are fair and reasonable. For purposes of this Agreement, “Compete” means doing any of the following: (i) selling\nproducts or services to any person or entity that was or is (at any time, including during the Term and the period when the provisions of this\nparagraph are in effect) a client or customer of Company (or its subsidiaries, affiliates or divisions) or on a list of prospective clients or customers\nof Company, or calling on, soliciting, taking away or accepting any such person or entity as a client or customer, or any attempt or offer to do any\nof the foregoing; (ii) entering into, or any attempt or offer to enter into, any business, enterprise or activity that is in any way similar to or\notherwise competitive with the business that the Company (or its subsidiaries, affiliates or divisions) conducted at any time during the Term or\nany time the provisions of this paragraph are in effect, or (iii) directly or indirectly assisting any person or entity to take or attempt or offer to\ntake any of the actions described in the foregoing clauses (i) or (ii).\n1 Page 11\n10. Remedies.\n@) The Employee agrees that any violation or threatened violation of this Agreement will cause irreparable injury to the\nCompany, entitling the Company to obtain injunctive relief in addition to all legal remedies at its disposal.\n(b) In addition to all remedies available hereunder, at law or in equity, if Employee breaches any provision of Section 8 of this\nAgreement, Company shall have the right to invoke any and all remedies provided under the California Uniform Trade Secrets Act (California\nCivil Code §83426, et seq.) or other statutes or common law remedies of similar effect.\n(0 The remedies provided to Company in this Section 10 are cumulative, and not exclusive, of any other remedies that may be\navailable to Company at law or in equity.\n11. No License. Nothing in this Agreement is intended to grant any rights to the Employee under any patent, copyright or other\nproprietary rights of the Company, nor shall this Agreement grant the Employee any rights in or to Confidential Information except as expressly\nset forth herein.\n12. Term. This Agreement shall survive the term of the Employment Agreement and shall continue until such time as all\nConfidential Information disclosed hereunder becomes publicly known and made generally available through no action or inaction of the\nEmployee.\n13. Miscellaneous. This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns. This\nAgreement shall be governed by the laws of the State of California, without reference to conflict of laws principles. This document contains the\nentire agreement between the parties with respect to the subject matter hereof. Any failure to enforce any provision of this Agreement shall not\nconstitute a waiver thereof or of any other provision hereof. This Agreement may not be amended, nor any obligation waived, except by a\nwriting signed by both parties hereto.\nIN WITNESS WHEREQF, the parties hereto have executed or caused their duly authorized officers to execute this Agreement as of the\ndate first above written.\nAPOLLO MEDICAL HOLDINGS, INC.\n(“COMPANY?”)\nBy /s/ Warren Hosseinion\nWarren Hosseinion\nTitle: President and Chief Executive Officer\n“EMPLOYEE”\n/s/ Noel DeWinter\nNoel DeWinter	1 Page 7\nAppendix A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement ("Agreement") dated as of September 10, 2008 is entered in by and between Apollo Medical Holdings,\nInc. (the "Company") and Noel DeWinter (the "Employee"), and sets forth the terms and conditions on which Company is willing to disclose\ncertain material non-public information about the Company.\n1.\nPurpose. In connection with his retention as a Employee to the Company pursuant to an agreement dated as of even date (the\n"Employee Agreement"), the Company may disclose to the Employee certain confidential technical and business information which the\nCompany requires the Employee to treat as confidential.\n2.\nDefinition. "Confidential Information" means any information disclosed to the Employee by the Company, either directly or\nindirectly in writing, orally or by inspection of tangible objects, including without limitation documents, prototypes and forecasted financial\ninformation. Confidential Information may also include information disclosed to the Company by third parties. Confidential Information shall\nnot, however, include any information which the Employee can establish by written documentation (i) was publicly known and made generally\navailable in the public domain prior to the time of disclosure to the Employee by the Company; (ii) becomes publicly known and made generally\navailable after disclosure to the Employee by the Company through no action or inaction of the Employee; (iii) is in the possession of the\nEmployee, without confidentiality restrictions, at the time of disclosure by the Company as shown by the Employee's files and records\nimmediately prior to the time of disclosure; (iv) is developed independently of the Confidential Information, as shown by written records\nprepared contemporaneously with such independent development; or (v) is disclosed pursuant to the requirement of a United States government\nagency or judicial body, provided that the Employee shall provide reasonable advice notice thereof to enable the Company to seek a protective\norder or otherwise prevent such disclosure.\n3.\nNon-use and Non-disclosure. The Employee agrees not to use any Confidentia Information for any purpose except within the\nproper scope of his duties pursuant to the Employment Agreement. The Employee agrees not to disclose any Confidential Information to third\nparties,\nexcept to those individuals who, with the prior written consent of the Company, are designated as authorized to receive such Confidential\nInformation in order for the Employee to perform his duties and obligation sunder the Employment Agreement. The Employee agrees that each\nthird party receiving any Confidential Information will enter into a separate Non-Disclosure Agreement with the Company.\n4.\nMaintenance of Confidentiality. The Employee agrees that it shall take all commercially reasonable measures to protect the\nsecrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, the Employee shall take at\nleast those measures that the Employee takes to protect its own confidential information of a similar nature and shall have its employees or\nadvisors who have access to Confidential Information sign a non-use and non-disclosure agreement in content substantially similar to the\nprovisions hereof, prior to any disclosure of Confidential Information to such employees. The Employee shall immediately notify the Company\nin the event of any unauthorized use or disclosure of any Confidential Information.\n1 Page 8\n5.\nNo Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS". COMPANY MAKES NO WARRANTIES,\nEXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.\n6.\nReturn of Materials. All documents and other tangible objects containing or representing Confidential Information which are\nin the possession of the Employee shall be and remain the property of the Company and shall be promptly returned to the Company upon request\nfor any reason or for no reason.\n7.\nWork Made for Hire.\n(a)\nEmployee and/or designates of the Employee shall promptly and fully inform the Company of, and disclose to the Company,\nany and all ideas, processes, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, fictitious business\nnames, technology, patents, know-how, trade secrets, computer programs, original works of authorship, formulae, concepts, themes, inventions,\ndesigns, creations, new works, derivative works and discoveries, and all applications, improvements, rights and claims related to any the\nforegoing, and all other intellectual property, proprietary rights and work product, whether or not patentable or copyrightable, registered or\nunregistered or domestic or foreign, and whether or not relating to a published work, that Employee develops, makes, creates, conceives or\nreduces to practice during the term of the Employment Agreement, whether alone or in collaboration with others (collectively, "Invention\nIdeas"). Employee hereby assigns to the Company exclusively in perpetuity throughout the world all right, title and interest (choate or inchoate)\nin (i) the Invention Ideas, (ii) all precursors, portions and work in progress with respect thereto and all inventions, works of authorship, mask\nworks, technology, information, know-how, materials and tools relating thereto or to the development, support or maintenance thereof and (iii)\nall\ncopyrights, patent rights, trade secret rights, trademark rights, mask works rights, sui generis database rights and all other intellectual and\nindustrial property rights of any sort and all business, contract rights, causes of action, and goodwill in, incorporated or embodied in, used\nto\ndevelop, or related to any of the foregoing (collectively "Intellectual Property").. All copyrightable Invention Ideas are intended by Employee\nto\nbe a "work-made-for-hire" by Employee for Company and owned by Company pursuant to Section 201 (b) of Title 17 of the United States Code.\n(b) Employee shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all\nsuch other agreements, certificates, instruments and documents, as the Company may reasonably request in order to obtain patent or copyright\nregistration\non\nall\nInvention\nIdeas\nand\nIntellectual\nProperty\nand\nshall\nexecute\nand\ndeliver\nall\ndocuments,\ninstruments\nand\nagreements,\nincluding\nthe formal execution of an assignment of copyright and/or patent application or issued patent, and do all things necessary or requested by the\nCompany, in order to enable Company to ultimately and finally obtain and enforce full and exclusive title to all Invention Ideas and Intellectual\nProperty and all rights assigned pursuant to this Section 7. Employee hereby appoints the Company as Employee's irrevocable attorney-in-fact\nfor the purpose of executing and delivering all such documents, instruments and agreements, and performing all such acts, with the same legal\nforce and effect as if executed and delivered and taken by Employee.\n(c)\nIf for any reason the foregoing assignment is determined to be unenforceable Employee grants to Company a perpetual,\nirrevocable, worldwide, royalty-free, exclusive, sub-licensable right and license to exploit and exercise all such Invention Ideas and Intellectual\nProperty.\n1 Page 9\n(d)\nBecause of the difficulty of establishing when Employee first conceives of or develops Intellectual Property, proprietary\nrights or work product or whether such Intellectual Property, proprietary rights or work product results from access to Company's confidential\nand proprietary information or equipment, facilities or data, Employee agrees that any Intellectual Property, proprietary rights and work product\nshall be presumed to be an Invention Idea if it is conceived, developed, used, sold, exploited or reduced to practice by Employee or with the aid\nof Employee within one year after the normal termination of Employee's employment with Company. Employee can rebut that presumption if\nEmployee proves that the intellectual property, proprietary rights and work product (i) was first conceived or developed after termination of\nEmployee's employment with and by Company; (ii) was conceived or developed entirely on Employee's own time without using Company's\nequipment, supplies, facilities or confidential and proprietary information; and (iii) did not result from any work performed by Employee for or\non behalf of Company.\n(e)\nEmployee acknowledges that there is no intellectual property, proprietary right or work product that Employee desires not to\nbe deemed Invention Ideas or Intellectual Property and thus to exclude from the above provisions of this Agreement. To the best of Employee's\nknowledge, there is no other existing contract in conflict with this Agreement or any other contract to assign ideas, processes, trademarks, service\nmarks, inventions, technology, computer programs, original works of authorship, designs, formulas, discoveries, patents or copyrights that is now\nin existence between Employee and any other person or entity.\n(f)\nThis Section 7 shall not operate to require Employee to assign to Company any of Employee's rights to inventions, intellectual\nproperties or work products that would not be assignable under the provisions of California Labor Code Section 2870. Employee represents and\nwarrants to Company that this paragraph constitutes Company's written notification to Employee of the provisions of Section 2870 of the\nCalifornia Labor Code, and Employee represents and warrants to Company that Employee has reviewed Section 2870 of the California Labor\nCode.\n8.\nUnfair Competition and Protection of Proprietary. Information.\n(a)\nEmployee shall not at any time (including after Employee's employment with Company terminates) divulge, furnish or make\naccessible to anyone any of Company's Proprietary Information, or use in any way any of Company's Proprietary Information other than as\nreasonably required to perform Employee's duties under this Agreement. Employee shall not undertake any other acts or omissions that would\nreduce the value to Company of Company's Proprietary Information. The restrictions on Employee's use of Company's Proprietary Information\nshall not apply to knowledge or information that Employee can prove is part of the public domain through no fault of Employee. Employee\nagrees that such restrictions are fair and reasonable.\n(b)\nEmployee agrees that Company's Proprietary Information constitutes a unique and valuable asset of Company that Company\nacquired at great time and expense, and which is secret and confidential and will only be available to or communicated to Employee in\nconfidence in the course of Employee's provision of services to Company. Employee also agrees that any disclosure or other use of Company's\nProprietary Information other than for Company's sole benefit would be wrongful, would constitute unfair competition and will cause irreparable\nand incalculable harm to Company and to its subsidiaries, affiliates and divisions. In addition to all other remedies Company may have, it shall\nhave the right to seek and obtain appropriate injunctive and other equitable relief, including emergency relief, to prevent any violations of this\nSection 8.\n1 Page 10\n(c)\nEmployee agrees that Company's employees constitute a valuable asset of Company. Employee agrees that Employee shall\nnot, during the Term and for a period of two years thereafter, directly or indirectly, for Employee or on behalf of any other person or entity, solicit\nany person who was an employee of or Employee to Company (at any time while Employee is performing any services for Company, or at any\ntime within twelve months prior to or after such solicitation) for a competing business or otherwise induce or attempt to induce any such persons\nto terminate their employment or relationship with Company or otherwise to disrupt or interfere, or attempt to disrupt or interfere, with\nCompany's employment or relationships with such persons. Employee agrees that any such solicitation, inducement or interference would\nbe\nwrongful and would constitute unfair competition, and will cause irreparable and incalculable harm to Company. Further, Employee shall not\nengage in any other unfair competition with Company. Employee agrees that such restrictions are fair and reasonable.\n(d)\nEmployee recognizes and agrees that Employee has no expectation of privacy with respect to Company's\ntelecommunications, networking or information processing systems (including stored computer files, e-mail messages and voice messages), and\nthat Employee's activity, and any files or messages, on or using any of those systems may be monitored at any time without notice.\n(e)\nAs\nused in this Agreement, "Company's Proprietary Information" means any knowledge, trade secrets (including "trade\nsecretS" as defined in Section 3426.1 of the California Civil Code), Invention Ideas, proprietary rights or proprietary information, intangible\nassets or property, and other intellectual property (whether or not copyrighted or copyrightable or patented or patentable), information and\nmaterials (including processes, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, technology,\npatents, patent applications and works of authorship), in whatever form, including electronic form, and all goodwill relating or appurtenant\nthereto, owned or licensed by Company or any of its subsidiaries, affiliates or divisions, or directly or indirectly useful in any aspect of the\nbusiness of Company or its subsidiaries, affiliates or divisions, whether or not marked as confidential or proprietary and whether developed\nby\nEmployee, by Company or its subsidiaries, affiliates or divisions or by others. Without limiting the foregoing, Company's Proprietary\nInformation includes (a) the names, locations, practices and requirements of any of Company's customers, prospective customers, vendors,\nsuppliers and personnel and any other persons having a business relationship with Company; (b) confidential or secret development or research\nwork of Company or its subsidiaries, affiliates or divisions, including information concerning any future or proposed services or products; (c)\nCompany's accounting, cost, revenue and other financial records and documents and the contents thereof; (d) Company's documents, contracts,\nagreements, correspondence and other similar business records; (e) confidential or secret designs, software code, know how, processes, formulae,\nplans and devices; and (f) any other confidential or secret aspect of the business of Company or its subsidiaries, affiliates or divisions.\n9.\nEmployee's Activities. During the term of the Employment Agreement, neither Employee nor any person or entity acting with\nor on Employee's behalf, nor any person or entity under the control of or affiliated with Employee, shall, directly or indirectly, in any way\nCompete with the Company. Employee agrees that, if Employee has any business to transact on Employee's own account that is similar to the\nbusiness entrusted to Employee by Company, Employee shall notify Company and always give preference to Company's business. Employee\nagrees\nthat\nsuch\nrestrictions\nare\nfair\nand\nreasonable.\nFor\npurposes\nof\nthis\nAgreement,\n"Compete"\nmeans\ndoing\nany\nof\nthe\nfollowing:\n(i)\nselling\nproducts or services to any person or entity that was or is (at any time, including during the Term and the period when the provisions of this\nparagraph are in effect) a client or customer of Company (or its subsidiaries, affiliates or divisions) or on a list of prospective clients or customers\nof Company, or calling on, soliciting, taking away or accepting any such person or entity as a client or customer, or any attempt or offer to do any\nof the foregoing; (ii) entering into, or any attempt or offer to enter into, any business, enterprise or activity that is in any way similar to or\notherwise competitive with the business that the Company (or its subsidiaries, affiliates or divisions) conducted at any time during the Term or\nany time the provisions of this paragraph are in effect, or (iii) directly or indirectly assisting any person or entity to take or attempt or offer to\ntake any of the actions described in the foregoing clauses (i) or (ii).\n1 Page 11\n10.\nRemedies.\n(a)\nThe Employee agrees that any violation or threatened violation of this Agreement will cause irreparable injury to the\nCompany, entitling the Company to obtain injunctive relief in addition to all legal remedies at its disposal.\n(b)\nIn addition to all remedies available hereunder, at law or in equity, if Employee breaches any provision of Section 8 of this\nAgreement, Company shall have the right to invoke any and all remedies provided under the California Uniform Trade Secrets Act (California\nCivil Code 883426, et seq.) or other statutes or common law remedies of similar effect.\n(c)\nThe remedies provided to Company in this Section 10 are cumulative, and not exclusive, of any other remedies that may be\navailable to Company at law or in equity.\n11.\nNo License. Nothing in this Agreement is intended to grant any rights to the Employee under any patent, copyright or other\nproprietary rights of the Company, nor shall this Agreement grant the Employee any rights in or to Confidential Information except as expressly\nset forth herein.\n12.\nTerm. This Agreement shall survive the term of the Employment Agreement and shall continue until such time as all\nConfidential Information disclosed hereunder becomes publicly known and made generally available through no action or inaction of the\nEmployee.\n13.\nMiscellaneous. This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns. This\nAgreement shall be governed by the laws of the State of California, without reference to conflict of laws principles. This document contains the\nentire agreement between the parties with respect to the subject matter hereof. Any failure to enforce any provision of this Agreement shall not\nconstitute a waiver thereof or of any other provision hereof. This Agreement may not be amended, nor any obligation waived, except by\na\nwriting signed by both parties hereto.\nIN WITNESS WHEREOF, the parties hereto have executed or caused their duly authorized officers to execute this Agreement as of the\ndate first above written.\nAPOLLO MEDICAL HOLDINGS, INC.\n("COMPANY")\nBy /s/ Warren Hosseinion\nWarren Hosseinion\nTitle: President and Chief Executive Officer\n"EMPLOYEE"\n/s/ Noel DeWinter\nNoel DeWinter	lPage7\nAppendix A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) dated as of September 10, 2008 is entered in by and between Apollo Medical Holdings,\nInc. (the “Company”) and Noel DeWinter (the “Employee”), and sets forth the terms and conditions on which Company is willing to disclose\ncertain material non-public information about the Company.\n1.\nPurpose. In connection with his retention as a Employee to the Company pursuant to an agreement dated as of even date (the\n“Employee Agreement”), the Company may disclose to the Employee certain confidential technical and business information which the\nCompany requires the Employee to treat as confidential.\n2.\nDefinition. “Confidential Information” means any information disclosed to the Employee by the Company, either directly or\nindirectly in writing, orally or by inspection of tangible objects, including without limitation documents, prototypes and forecasted financial\ninformation. Confidential Information may also include information disclosed to the Company by third parties. Confidential Information shall\nnot, however, include any information which the Employee can establish by written documentation (i) was publicly known and made generally\navailable in the public domain prior to the time of disclosure to the Employee by the Company; (ii) becomes publicly known and made generally\navailable after disclosure to the Employee by the Company through no action or inaction of the Employee; (iii) is in the possession of the\nEmployee, without confidentiality restrictions, at the time of disclosure by the Company as shown by the Employee's files and records\nimmediately prior to the time of disclosure; (iv) is developed independently of the Confidential Information, as shown by written records\nprepared contemporaneously with such independent development; or (v) is disclosed pursuant to the requirement of a United States government\nagency or judicial body, provided that the Employee shall provide reasonable advice notice thereof to enable the Company to seek a protective\norder or otherwise prevent such disclosure.\n3.\nNon-use and Non-disclosure. The Employee agrees not to use any Confidential Information for any purpose except within the\nproper scope of his duties pursuant to the Employment Agreement. The Employee agrees not to disclose any Confidential Information to third\nparties, except to those individuals who, with the prior written consent of the Company, are designated as authorized to receive such Confidential\nInformation in order for the Employee to perform his duties and obligation sunder the Employment Agreement. The Employee agrees that each\nthird party receiving any Confidential Information will enter into a separate Non-Disclosure Agreement with the Company.\n4.\nMaintenance of Confidentiality. The Employee agrees that it shall take all commercially reasonable measures to protect the\nsecrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, the Employee shall take at\nleast those measures that the Employee takes to protect its own confidential information of a similar nature and shall have its employees or\nadvisors who have access to Confidential Information sign a non-use and non-disclosure agreement in content substantially similar to the\nprovisions hereof, prior to any disclosure of Confidential Information to such employees. The Employee shall immediately notify the Company\nin the event of any unauthorized use or disclosure of any Confidential Information.\nlPage8\n5.\nNo Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. COMPANY MAKES NO WARRANTIES,\nEXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.\n6.\nReturn of Materials. All documents and other tangible objects containing or representing Confidential Information which are\nin the possession of the Employee shall be and remain the property of the Company and shall be promptly returned to the Company upon request\nfor any reason or for no reason.\n7.\nWork Made for Hire.\n(a)\nEmployee and/or designates of the Employee shall promptly and fully inform the Company of, and disclose to the Company ,\nany and all ideas, processes, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, fictitious business\nnames, technology, patents, know-how, trade secrets, computer programs, original works of authorship, formulae, concepts, themes, inventions,\ndesigns, creations, new works, derivative works and discoveries, and all applications, improvements, rights and claims related to any the\nforegoing, and all other intellectual property, proprietary rights and work product, whether or not patentable or copyrightable, registered or\nunregistered or domestic or foreign, and whether or not relating to a published work, that Employee develops, makes, creates, conceives or\nreduces to practice during the term of the Employment Agreement, whether alone or in collaboration with others (collectively, “Invention\nIdeas”). Employee hereby assigns to the Company exclusively in perpetuity throughout the world all right, title and interest (choate or inchoate)\nin (i) the Invention Ideas, (ii) all precursors, portions and work in progress with respect thereto and all inventions, works of authorship, mask\nworks, technology, information, know-how, materials and tools relating thereto or to the development, support or maintenance thereof and (iii) all\ncopyrights, patent rights, trade secret rights, trademark rights, mask works rights, sui generis database rights and all other intellectual and\nindustrial property rights of any sort and all business, contract rights, causes of action, and goodwill in, incorporated or embodied in, used to\ndevelop, or related to any of the foregoing (collectively "Intellectual Property").. All copyrightable Invention Ideas are intended by Employee to\nbe a “work-made-for-hire” by Employee for Company and owned by Company pursuant to Section 201 (b) of Title 17 of the United States Code.\n(b) Employee shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all\nsuch other agreements, certificates, instruments and documents, as the Company may reasonably request in order to obtain patent or copyright\nregistration on all Invention Ideas and Intellectual Property , and shall execute and deliver all documents, instruments and agreements, including\nthe formal execution of an assignment of copyright and/or patent application or issued patent, and do all things necessary or requested by the\nCompany, in order to enable Company to ultimately and finally obtain and enforce full and exclusive title to all Invention Ideas and Intellectual\nProperty and all rights assigned pursuant to this Section 7. Employee hereby appoints the Company as Employee’s irrevocable attorney-in-fact\nfor the purpose of executing and delivering all such documents, instruments and agreements, and performing all such acts, with the same legal\nforce and effect as if executed and delivered and taken by Employee.\n(c)\nIf for any reason the foregoing assignment is determined to be unenforceable Employee grants to Company a perpetual,\nirrevocable, worldwide, royalty-free, exclusive, sub-licensable right and license to exploit and exercise all such Invention Ideas and Intellectual\nProperty.\nlPage9\n(d)\nBecause of the difficulty of establishing when Employee first conceives of or develops Intellectual Property, proprietary\nrights or work product or whether such Intellectual Property, proprietary rights or work product results from access to Company’s confidential\nand proprietary information or equipment, facilities or data, Employee agrees that any Intellectual Property, proprietary rights and work product\nshall be presumed to be an Invention Idea if it is conceived, developed, used, sold, exploited or reduced to practice by Employee or with the aid\nof Employee within one year after the normal termination of Employee’s employment with Company. Employee can rebut that presumption if\nEmployee proves that the intellectual property, proprietary rights and work product (i) was first conceived or developed after termination of\nEmployee’s employment with and by Company; (ii) was conceived or developed entirely on Employee’s own time without using Company’s\nequipment, supplies, facilities or confidential and proprietary information; and (iii) did not result from any work performed by Employee for or\non behalf of Company.\n(e)\nEmployee acknowledges that there is no intellectual property, proprietary right or work product that Employee desires not to\nbe deemed Invention Ideas or Intellectual Property and thus to exclude from the above provisions of this Agreement. To the best of Employee’s\nknowledge, there is no other existing contract in conflict with this Agreement or any other contract to assign ideas, processes, trademarks, service\nmarks, inventions, technology, computer programs, original works of authorship, designs, formulas, discoveries, patents or copyrights that is now\nin existence between Employee and any other person or entity.\n(f)\nThis Section 7 shall not operate to require Employee to assign to Company any of Employee’s rights to inventions, intellectual\nproperties or work products that would not be assignable under the provisions of California Labor Code Section 2870. Employee represents and\nwarrants to Company that this paragraph constitutes Company’s written notification to Employee of the provisions of Section 2870 of the\nCalifornia Labor Code, and Employee represents and warrants to Company that Employee has reviewed Section 2870 of the California Labor\nCode.\n8.\nUnfair Competition and Protection of Proprietary Information.\n(a)\nEmployee shall not at any time (including after Employee’s employment with Company terminates) divulge, furnish or make\naccessible to anyone any of Company’s Proprietary Information, or use in any way any of Company’s Proprietary Information other than as\nreasonably required to perform Employee’s duties under this Agreement. Employee shall not undertake any other acts or omissions that would\nreduce the value to Company of Company’s Proprietary Information. The restrictions on Employee’s use of Company’s Proprietary Information\nshall not apply to knowledge or information that Employee can prove is part of the public domain through no fault of Employee. Employee\nagrees that such restrictions are fair and reasonable.\n(b)\nEmployee agrees that Company’s Proprietary Information constitutes a unique and valuable asset of Company that Company\nacquired at great time and expense, and which is secret and confidential and will only be available to or communicated to Employee in\nconfidence in the course of Employee’s provision of services to Company. Employee also agrees that any disclosure or other use of Company’s\nProprietary Information other than for Company’s sole benefit would be wrongful, would constitute unfair competition and will cause irreparable\nand incalculable harm to Company and to its subsidiaries, affiliates and divisions. In addition to all other remedies Company may have, it shall\nhave the right to seek and obtain appropriate injunctive and other equitable relief, including emergency relief, to prevent any violations of this\nSection 8.\nl Page 10\n(c)\nEmployee agrees that Company’s employees constitute a valuable asset of Company. Employee agrees that Employee shall\nnot, during the Term and for a period of two years thereafter, directly or indirectly, for Employee or on behalf of any other person or entity, solicit\nany person who was an employee of or Employee to Company (at any time while Employee is performing any services for Company, or at any\ntime within twelve months prior to or after such solicitation) for a competing business or otherwise induce or attempt to induce any such persons\nto terminate their employment or relationship with Company or otherwise to disrupt or interfere, or attempt to disrupt or interfere, with\nCompany’s employment or relationships with such persons. Employee agrees that any such solicitation, inducement or interference would be\nwrongful and would constitute unfair competition, and will cause irreparable and incalculable harm to Company. Further, Employee shall not\nengage in any other unfair competition with Company. Employee agrees that such restrictions are fair and reasonable.\n(d)\nEmployee recognizes and agrees that Employee has no expectation of privacy with respect to Company’s\ntelecommunications, networking or information processing systems (including stored computer files, e-mail messages and voice messages), and\nthat Employee’s activity, and any files or messages, on or using any of those systems may be monitored at any time without notice.\n(e)\nAs used in this Agreement, “Company’s Proprietary Information” means any knowledge, trade secrets (including “trade\nsecrets” as defined in Section 3426.1 of the California Civil Code), Invention Ideas, proprietary rights or proprietary information, intangible\nassets or property, and other intellectual property (whether or not copyrighted or copyrightable or patented or patentable), information and\nmaterials (including processes, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, technology,\npatents, patent applications and works of authorship), in whatever form, including electronic form, and all goodwill relating or appurtenant\nthereto, owned or licensed by Company or any of its subsidiaries, affiliates or divisions, or directly or indirectly useful in any aspect of the\nbusiness of Company or its subsidiaries, affiliates or divisions, whether or not marked as confidential or proprietary and whether developed by\nEmployee, by Company or its subsidiaries, affiliates or divisions or by others. Without limiting the foregoing, Company’s Proprietary\nInformation includes (a) the names, locations, practices and requirements of any of Company’s customers, prospective customers, vendors,\nsuppliers and personnel and any other persons having a business relationship with Company; (b) confidential or secret development or research\nwork of Company or its subsidiaries, affiliates or divisions, including information concerning any future or proposed services or products; (c)\nCompany’s accounting, cost, revenue and other financial records and documents and the contents thereof; (d) Company’s documents, contracts,\nagreements, correspondence and other similar business records; (e) confidential or secret designs, software code, know how, processes, formulae,\nplans and devices; and (f) any other confidential or secret aspect of the business of Company or its subsidiaries, affiliates or divisions.\n9.\nEmployee’s Activities. During the term of the Employment Agreement, neither Employee nor any person or entity acting with\nor on Employee’s behalf, nor any person or entity under the control of or affiliated with Employee, shall, directly or indirectly, in any way\nCompete with the Company. Employee agrees that, if Employee has any business to transact on Employee’s own account that is similar to the\nbusiness entrusted to Employee by Company, Employee shall notify Company and always give preference to Company’s business. Employee\nagrees that such restrictions are fair and reasonable. For purposes of this Agreement, “Compete” means doing any of the following: (i) selling\nproducts or services to any person or entity that was or is (at any time, including during the Term and the period when the provisions of this\nparagraph are in effect) a client or customer of Company (or its subsidiaries, affiliates or divisions) or on a list of prospective clients or customers\nof Company, or calling on, soliciting, taking away or accepting any such person or entity as a client or customer, or any attempt or offer to do any\nof the foregoing; (ii) entering into, or any attempt or offer to enter into, any business, enterprise or activity that is in any way similar to or\notherwise competitive with the business that the Company (or its subsidiaries, affiliates or divisions) conducted at any time during the Term or\nany time the provisions of this paragraph are in effect, or (iii) directly or indirectly assisting any person or entity to take or attempt or offer to\ntake any of the actions described in the foregoing clauses (i) or (ii).\nl Page 11\n10.\nRemedies.\n(a)\nThe Employee agrees that any violation or threatened violation of this Agreement will cause irreparable injury to the\nCompany, entitling the Company to obtain injunctive relief in addition to all legal remedies at its disposal.\n(b)\nIn addition to all remedies available hereunder, at law or in equity, if Employee breaches any provision of Section 8 of this\nAgreement, Company shall have the right to invoke any and all remedies provided under the California Uniform Trade Secrets Act (California\nCivil Code §§3426, et seq.) or other statutes or common law remedies of similar effect.\n(c)\nThe remedies provided to Company in this Section 10 are cumulative, and not exclusive, of any other remedies that may be\navailable to Company at law or in equity.\n11.\nNo License. Nothing in this Agreement is intended to grant any rights to the Employee under any patent, copyright or other\nproprietary rights of the Company, nor shall this Agreement grant the Employee any rights in or to Confidential Information except as expressly\nset forth herein.\n12.\nTerm. This Agreement shall survive the term of the Employment Agreement and shall continue until such time as all\nConfidential Information disclosed hereunder becomes publicly known and made generally available through no action or inaction of the\nEmployee.\n13.\nMiscellaneous. This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns. This\nAgreement shall be governed by the laws of the State of California, without reference to conflict of laws principles. This document contains the\nentire agreement between the parties with respect to the subject matter hereof. Any failure to enforce any provision of this Agreement shall not\nconstitute a waiver thereof or of any other provision hereof. This Agreement may not be amended, nor any obligation waived, except by a\nwriting signed by both parties hereto.\nIN WITNESS WHEREOF, the parties hereto have executed or caused their duly authorized officers to execute this Agreement as of the\ndate first above written.\nAPOLLO MEDICAL HOLDINGS, INC.\n(“COMPANY”)\nBy /s/ Warren Hosseinion\nWarren Hosseinion\nTitle: President and Chief Executive Officer\n“EMPLOYEE”\n/s/ Noel DeWinter\nNoel DeWinter
fb4ec1d6fa70ca625c13cc47417a0d16.pdf	jurisdiction party	EX-10 .1 3 a2092398zex-10_1.htm EXHIBIT 10.1\nQuickLinks -- Click here to rapidly navigate through this document\nExhibit 10.1\nCONFIDENTIALITY, PROPRIETARY RIGHTS\nAND NON-COMPETITION AGREEMENT\nPARTIES:\nEMPLOYER: Tanning Technology Corporation ("Tanning")\nand\nEMPLOYEE: Barrett L. Sweet ("Employee")\nAGREEMENT:\nAs a condition of employment with Tanning, Employee agrees to the following terms and conditions:\n1. Duties/Best Efforts. Employee agrees to devote his or her full professional time and attention to the business of Tanning and those duties and obligations entrusted to or required of Employee. Employee shall\nat all times perform Employee's duties faithfully, industriously and to the best of Employee's ability, experience and talent.\n2. Confidentiality, Non-Disclosure and Proprietary Rights.\n(a) Employee understands and agrees that the following classes of information (collectively "Confidential Information") related to Tanning's business or to which Employee may become exposed in the course of\nhis or her employment, whether or not in writing and whether or not formally marked, are and shall remain the exclusive and confidential property of Tanning:\n(i) Data, software, processes, client contacts, client/customer lists, service techniques, market development and expansion plans, personnel training and development methods, internal business\norganization and methods, "Inventions" (as defined below), and other technical, business and financial information;\n(ii) Information and data provided to Tanning from time to time by third parties on the understanding and condition that such data and information will be kept confidential;\n(iii) Ideas, processes, software, information, data, or other items that may be developed by Employee from time to time as work product of the employment relationship.\nAny information that is generally known to the public (other than as a result of disclosure by Employee) will not be deemed Confidential Information.\n(b) Throughout the time Employee is employed by Tanning (the "Period of Employment") , and thereafter, Employee will not use or disclose Confidential Information, and will take all reasonable precautions to\nprevent any person or entity from gaining access to any of the Confidential Information, other than as required in the performance of Employee's duties with Tanning. In order to satisfy the needs of Tanning's clients\nand customers, Employee will sign any confidentiality agreement reasonably requested by such third parties and/or Tanning. Employee understands that Employee is not permitted to use the Confidential Information\nfor his or her own purposes or benefit.\n(c) Except as required in the performance of Employee's duties to Tanning, Employee shall not duplicate in any way or remove from the work premises any property of Tanning or its business associates,\ncustomers or clients, including but not limited to any Confidential Information. At the end of the Employee's Period of Employment, Employee will return to Tanning all such property, including all copies of materials\nembodying Confidential Information, and including, without limitation, files and other information contained on paper, electronic, optical or other media, Tanning credit cards, keys and security passes, computer\nequipment and programs, cell phone, and similar items.\n(d) Employee hereby agrees to assign, and does hereby assign, to Tanning all of Employee's right, title and interest in or to any and all ideas, concepts, know-how, techniques, processes, inventions, discoveries,\ndevelopments, software, works of authorship, innovations and improvements (collectively "Inventions") conceived or made by Employee during Employee's Period of Employment, whether alone or in concert with\nothers, whether patentable or subject to potential copyrights or not, except those that the Employee developed or develops entirely on Employee's own time without using the equipment, supplies, facilities, or\nConfidential Information of Tanning, and provided that such Inventions are unrelated to the business (whether existing or proposed) of Tanning. Employee agrees to promptly inform and disclose all Inventions to\nTanning in writing, and with respect to those Inventions that Employee is required to assign to Tanning hereunder, to provide all assistance reasonably requested by Tanning in the preservation of its interests in the\nInventions (such as by making applications, executing documents, testifying, etc.) , such assistance to be provided at Tanning's expense but without additional compensation to Employee. Employee agrees that all\nsuch Inventions are Confidential Information and are the sole and absolute property of Tanning.\n(e) Employee agrees that any work or Invention created or prepared by Employee during Employee's Period of Employment which is subject to assignment under paragraph (d) above, and which is eligible for\nUnited States copyright protection or protection under the Universal Copyright Convention, the Berne Copyright Convention and/or the Buenos Aires Copyright Convention, shall be a "work made for hire" and the sole\nand absolute property of Tanning. In the event that any such work is deemed not to be a "work made for hire", Employee hereby assigns all right, title and interest in and to the copyright in such work to Tanning, and\nagrees to provide all assistance reasonably requested in the establishment, preservation and enforcement of Tanning's copyright in such work, such assistance to be provided at Tanning's expense but without any\nadditional compensation to Employee.\n(f) In the event that Tanning is unable, as a result of inability to find the Employee after a reasonably diligent effort, as a result of the death or incapacity of the Employee, or as a result of the unjustified refusal of\nEmployee, to secure Employee's signature on any documents, applications, or letters patent, copyright or other analogous protection relating to Inventions or other proprietary rights, Employee hereby irrevocably\ndesignates and appoints Tanning, by its duly authorized officers and agents as Employee's agent and attorney-in-fact, to act for and on Employee's behalf and stead to execute and file any such application or\napplications and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent, copyright, or other analogous protection thereon with the same legal force and effect as if executed by\nEmployee.\n3. Non-Competition. Employee holds an executive or management position with Tanning in which Employee manages portions of the business operations of Tanning and supervises or oversees other\nemployees. Employee is considered a member of Tanning's executive or management team or a member of professional staff supporting Tanning's executive or management team, and a key employee of Tanning\nwhose efforts are integral to Tanning's business and for which Employee receives commensurately high compensation and benefits. Tanning has invested and/or will invest considerable time and money in the\ndevelopment and enhancement of Employee's education, training and skills and the knowledge of Tanning's unique business, which business is worldwide in scope and market. This enhanced skill and knowledge is\na substantial asset of Tanning and will be the principal reason that Tanning continues the employment relationship and continues to compensate Employee for Employee's work. In addition, Employee has or will\nbecome aware of Confidential Information, which Confidential Information in the hands of a competitor or potential competitor would cause substantial loss and damage to Tanning and/or its customers and clients.\nFinally, Employee will have close customer contact, which would enable Employee to divert customer trade. Employee acknowledges that Employee's employment creates a relationship of confidence and trust\nbetween Tanning and Employee with respect to the Confidential Information. Employee also acknowledges the highly competitive nature of Tanning's business. In consideration of the above matters, Employee\nagrees and acknowledges that it is reasonable, necessary and appropriate in order to protect the immediate interests of and avoid substantial injury to Tanning for Employee to accept the following restrictions on\nEmployee's right to work or be employed in a fashion which will compete with Tanning's business and type of business.\nEmployee owes a duty of loyalty to Tanning to act solely for Tanning in all matters connected with his or her employment. Employee will not, during the Period of Employment, and for one year after the\ntermination of employment for any reason, compete with Tanning by directly or indirectly, alone or in concert or cooperation with any other person or entity, taking any of the following actions: (a) owning, managing,\noperating, joining, controlling or providing services to, aiding or assisting any business entity, regardless of form, to engage in the business of, develop, seek to develop, market, produce or provide any commercial\nproduct or service in the nature of those provided by, or under development by, or otherwise compete with, Tanning during the Period of Employment; (b) serving as an employee, agent, consultant, officer, director,\nrepresentative, manager, partner, landlord or creditor of any such business entity or enterprise described in (a); or (c) inducing or attempting to induce any customer, supplier, or business relation of Tanning to cease\ndoing business with Tanning, to transfer all or any portion of their business away from Tanning or to any such business entity or enterprise described in (a), or in any other way interfering with the relationship between\nany customer, supplier or business relation and Tanning. This non-competition obligation shall apply to North America and any other country where Tanning or any of its subsidiaries or affiliates are actively engaged\nin or pursuing business during the Employee's Period of Employment. This paragraph shall not prohibit the ownership by Employee of less than 5% of any publicly traded corporation, provided that Employee is not\notherwise engaged with such corporation in any of the activities prohibited by this section 3. The time period of the restrictions set forth in this section shall be extended for any period of time that Employee is found to\nbe in violation of any provision of this section 3.\n4. Non-Solicitation. Employee shall not (whether alone or as a partner or joint venture with any other person or entity, or as an officer, director, shareholder, employee, consultant, representative, manager or\nagent of any company) during the Period of Employment, [and for one year after the termination of employment for any reason, directly or indirectly: (1) recruit, solicit, attempt to persuade, or assist in the recruitment\nor solicitation of the employment or services of any person who is employed by Tanning, or any former employee of Tanning whose employment has been terminated for less than six (6) months; or (2) solicit, directly\nor indirectly, the business of any customer, supplier, or business relation of tanning on behalf of any business competitive with Tanning's then-current business. The time period of the restrictions set forth in this\nsection shall be extended for any period of time that Employee is found to be in violation of any provision of this section 4.\n5. Reasonableness. If any court shall determine that the duration, geographic limitations, subject or scope of any restriction contained in sections 3 or 4 are unenforceable, it is the intention of the parties that\nsections 3 and 4 shall not thereby be terminated but shall be deemed amended to the extent required to make it valid and enforceable, such amendment to apply only with respect to the operation of the section in the\njurisdiction of the court that has made such adjudication.\n6. Non-Disparagement. Employee agrees that, other than as required by law, through the Period of Employment and thereafter, he or she shall not make or publish, nor cause or attempt to cause any other\nperson to make or publish, any statement, either written or oral, regarding Tanning, its directors, officers or employees, that is defamatory or disparaging or that reflects negatively upon the character, personality,\nintegrity or performance of any of them, or that is or reasonably could be expected to be damaging to the reputation of any of them. Employee further agrees that, through the Period of Employment and thereafter, he\nshall not discourage, or attempt to discourage, any person, firm, corporation or business entity from doing business with, or utilizing the services of, Tanning.\n7. Affiliated Entities. Employee understands that Tanning's business may be carried out by or in conjunction with affiliated companies or subsidiaries. Employee agrees that Employee's obligations of\nconfidentiality, non-competition and non-disparagement, shall apply equally to the Confidential Information, business and employees of Tanning's subsidiaries and affiliates. For such purposes, any reference to\nTanning in this Agreement shall also be deemed to be a reference to its subsidiaries and affiliates.\n8. Remedies for Breach of Non-Disclosure/Non-Compete/Non-Solicitation/Non-Disparagement Provisions. Employee acknowledges and agrees that the provisions of this Agreement are essential to Tanning, are\nreasonable and necessary to protect the legitimate interests of Tanning, and that the damages sustained by Tanning as a result of a breach of the provisions in this Agreement will subject Tanning to immediate,\nirreparable harm and damage, the amount of which, although substantial, cannot be reasonably ascertained, and that recovery of damages at law will not be an adequate remedy. Employee therefore agrees that\nTanning, in addition to any other remedy it may have under this Agreement or at law, shall be entitled to injunctive and other equitable relief to prevent or curtail any breach of any provision of this Agreement. In the\nevent suit or action is instituted to enforce this Agreement, including, but not limited to, suit for a temporary restraining order or preliminary or permanent injunction, the prevailing party shall be entitled to costs and\nreasonable attorneys' fees. Employee waives any right to the posting of a bond in the event of an issuance of a temporary restraining order, preliminary injunction or permanent injunction upon the issuance of such an\norder by a court of competent jurisdiction.\n9. Employee Notification Requirement. During the Period of Employment, and during any subsequent period of time that Employee is reasonably likely to be subject to a continuing obligation under the terms of\nthis Agreement, Employee will notify Tanning of any change of address, and will identify and notify Tanning of each and any new job or other business activity in which Employee plans to engage, together with the\nname and address of the new employer and a reasonably detailed description of the nature of the Employee's new position with such new employer sufficient for Tanning to be able to enforce its rights under this\nAgreement.\n10. Former Employment or Work. Employee represents, acknowledges and agrees that Employee has not brought, and will not bring with Employee, or use in the performance of Employee's duties for Tanning,\nany materials or documents of any former employer, client, person, or entity of any type, which are not generally available to the public, unless Employee has obtained written authorization for the possession and use\nof such materials or documents and provided such authorization to Tanning. Employee also understands and agrees that, in Employee's employment with Tanning, Employee shall not breach any obligation of\nconfidentiality or legal duty that Employee has to any former employer or client and agrees that Employee will fulfill any and all such obligations during Employee's Period of Employment. Employee agrees to\nindemnify and hold Tanning harmless with respect to any breach of this provision pursuant to the terms of paragraph 14 below.\n11. No Conflicts. Employee represents and warrants that, to the best of his knowledge and belief, delivery and performance of this Agreement does not violate any applicable law, regulation, order, judgment or\ndecree or any agreement to which Employee is a party or by which he or she is bound.\n12. Assignment. This Agreement shall bind and benefit the parties hereto, and to the extent necessary to carry out its intentions, the legal and personal representatives of the parties. This Agreement may not be\nassigned without the written permission of the parties, except that Tanning may assign this Agreement to any successor of Tanning by reason of reorganization, merger, consolidation, or the partial or complete sale of\nTanning's business and/or assets.\n13. Indemnification and Remedy. Each party agrees to indemnify and hold harmless the other against any and all damages, claims, losses or expenses, including reasonable attorney's fees, arising from or\nrelating to any breach of this Agreement.\n14. Waiver. Neither the delay nor failure by Tanning or Employee to enforce any provision or exercise any right under this Agreement, nor partial or single enforcement or exercise of any such provision or right,\nshall constitute a waiver of that or any other provision or right.\n15. Governing Law and Venue. This Agreement shall be interpreted and enforced under the laws of the State of Colorado applicable to contracts made to be performed entirely within Colorado. Except as\nnecessary to enforce Tanning's rights pursuant to paragraphs 2 through 8 above, to the extent that any action is brought in a court of law in connection with this Agreement, the exclusive venue for such action shall\nbe a court of appropriate jurisdiction, including the Federal courts, located in the City and County of Denver, Colorado.\n16. Survival. The provisions of this Agreement that by their nature are intended to survive, including without limitation the confidentiality, non-disclosure, non-competition, non-solicitation, non-disparagement and\nindemnification provisions, shall survive the termination of this Agreement.\n17. Arbitration. Except with respect to an action by Tanning to seek to enforce its legal or equitable rights pursuant to paragraphs 2 through 8 above, and after the exhaustion of all applicable administrative\nremedies, any controversy or claim arising out of or related to this Agreement, or Employee's employment, including disputes arising under state and federal anti-discrimination and civil rights laws, shall be resolved\nby arbitration in Denver, Colorado under the Commercial Rules of the American Arbitration Association in effect at the time such controversy or claim arises (the "Rules") by one arbitrator selected pursuant to the\nRules, except that the parties specifically authorize the Arbitrator to set a schedule for, accept the submission of and dispositively rule on any or all of the issues raised in motion(s) and supporting briefs for summary\njudgment prior to conducting any such arbitration. The award of the arbitrator shall be in writing, shall be final and binding upon the parties, and may, in appropriate circumstances, include injunctive relief. Should any\nparty fail to appear or be represented at the arbitration proceedings after due notice in accordance with the Rules, then the arbitrator may nevertheless render a decision in the absence of that party, and such decision\nshall have the same force and effect as if the absent party had been present, whether or not it shall be adverse to the interests of that party. Any award rendered hereunder may be entered for enforcement, if\nnecessary, in any court of competent jurisdiction, and the party against whom enforcement is sought shall bear the expenses, including attorneys' fees, of enforcement.\n18. Interpretation. In the event that any provision in this Agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect\nany other provision of this Agreement, but this Agreement shall be construed as if such provision had never been contained herein. If any provision in this Agreement shall be held to be excessively broad as to\nduration, activity or subject in any jurisdiction, it shall be construed by limiting and reducing the provision that is deemed excessively broad. A limitation or reduction in the application of any provision in one jurisdiction\nshall not affect the application of the same provision in any other jurisdiction.\n19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall together constitute one and the same Agreement.\n20. Entire Agreement and Amendment. This Agreement constitutes the entire agreement between Tanning and Employee regarding its subject matter, and any verbal or written communication between the parties\nprior to the adoption of this Agreement, shall be deemed merged herein and of no further force and effect. This Agreement may only be altered or amended by a writing signed by the Employee and an authorized\nofficer of Tanning, and no officer, employee, agent or representative of Tanning has the authority to orally modify any term of this Agreement including, without limitation, the at-will nature of Employee's employment.\nAgreed to and Accepted:\nTANNING TECHNOLOGY\nCORPORATION\nEMPLOYEE\nBy:\nBy:\nPrinted Name: Melinda Hall\nPrinted Name: Barrett L. Sweet\nTitle: Director of Human Resources\nDate:\nDate: July 29, 2002\nAddress and Phone:\n4600 South Syracuse St. , Suite 1200\nDenver, CO 80237\n303-220-9944\n850 North State, Apt. 20C\nChicago, IL 60610\n312-337-6340\nQuickLinks\nExhibit 10.1	EX-10.1 3 a20923982ex-10_1.htm EXHIBIT 10.1\nQuickLinks -- Click here to rapidly navigate through this document\nExhibit 10.1\nCONFIDENTIALITY. PROPRIETARY RIGHTS\nAND NON-COMPETITION AGREEMENT\nPARTIES:\nE M P LOY E R: Tanning Technology Corporation ("Tanning")\nand\nE M P LOY E E: Barrett L. Sweet ("E mployee")\nAGREEMENT:\nAs a condition of employment with Tanning, Employee agrees to the following terms and conditions:\n1. Duties/Best Efforts. Employee agrees to devote his or her full professional time and attention to the business of Tanning and those duties and obligations entrusted to or required of Employee. Employee shall\natall times perform Employee's duties faithfully, industriously and to the best of Employee's ability, experience and talent.\n2. Confidentiality, Non-Disclosure and Proprietary Rights.\n(a) Employee understands and agrees that the following classes of information (collectively "Confidential Information") related to Tanning's business or to which Employee may become exposed in the course of\nhis or her employment, whether or not in writing and whether or not formally marked, are and shall remain the exclusive and confidential property of Tanning:\n(i) Data, software, processes, client contacts, client/customer lists, service techniques, market developmentand expansion plans, personnel training and development methods, internal business\norganization and methods, "Inventions" (as defined below), and other technical, business and financial information;\n(ii) Information and data provided to Tanning from time to time by third parties on the understanding and condition that such data and information will be kept confidential;\n(iii) Ideas, processes, software, information, data, or other items that may be developed by Employee from time to time as work product of the employment relationship.\nAny information that is generally known to the public (other than as a result of disclosure by Employee) will not be deemed Confidential Information.\n(b) Throughout the time Employee is employed by Tanning (the "Period of Employment"), and thereafter, Employee will not use or disclose Confidential Information, and will take all reasonable precautions to\nprevent any person or entity from gaining access to any of the Confidential Information, other than as required in the performance of Employee's duties with Tanning. In order to satisfy the needs ofTanning's clients\nand customers, Employee will sign any confidentiality agreement reasonably requested by such third parties and/orTanning. Employee understands that Employee is not permitted to use the Confidential Information\nfor his or her own purposes or benefit.\n(c) Except as required in the performance of Employee's duties to Tanning, Employee shall notduplicate in any way or remove from the work premises any property of Tanning or its business associates,\ncustomers or clients, including but not limited to any Confidential Information. At the end of the Employee's Period of Employment, Employee will return to Tanning all such property, including all copies of materials\nembodying Confidential Information, and including, without limitation, files and other information contained on paper, electronic, optical or other media, Tanning credit cards, keys and security passes, computer\nequipmentand programs, cell phone, and similar items.\n(d) Employee hereby agrees to assign, and does hereby assign, to Tanning all of Employee‘s right, title and interest in or to any and all ideas, concepts, know-how, techniques, processes, inventions, discoveries,\ndevelopments, software, works of authorship, innovations and improvements (collectively "Inventions") conceived or made by Employee during Employee's Period of Employment, whether alone or in concert with\nothers, whether patentable or subject to potential copyrights or not, except those that the Employee developed or develops entirely on Employee‘s own time without using the equipment, supplies, facilities, or\nConfidential Information ofTanning, and provided that such Inventions are unrelated to the business (whether existing or proposed) of Tanning. Employee agrees to promptly inform and disclose all Inventions to\nTanning in writing, and with respect to those Inventions that Employee is required to assign to Tanning hereunder, to provide all assistance reasonably requested by Tanning in the preservation of its interests in the\nInventions (such as by making applications, executing documents, testifying, etc.), such assistance to be provided at Tanning's expense but without additional compensation to Employee. Employee agrees that all\nsuch Inventions are Confidential Information and are the sole and absolute property of Tanning.\n(e) Employee agrees that any work or Invention created or prepared by Employee during Employee's Period of Employment which is subject to assignment under paragraph (d) above, and which is eligible for\nUnited States copyright protection or protection under the Universal Copyright Convention, the Berne CopyrightConvention and/or the Buenos Aires Copyright Convention, shall be a "work made for hire" and the sole\nand absolute property ofTanning. In the event that any such work is deemed not to be a "work made for hire", Employee hereby assigns all right, title and interest in and to the copyright in such work to Tanning, and\nagrees to provide all assistance reasonably requested in the establishment, presen/ation and enforcement ofTanning's copyright in such work, such assistance to be provided at Tanning's expense but withoutany\nadditional compensation to E mployee.\n(f) In the event thatTanning is unable, as a result of inability to find the Employee after a reasonably diligent effort, as a result of the death or incapacity of the Employee, or as a result of the unjustified refusal of\nEmployee, to secure Employee's signature on any documents, applications, or letters patent, copyright or other analogous protection relating to Inventions or other proprietary rights, Employee hereby irrevocably\ndesignates and appoints Tanning, by its duly authorized officers and agents as Employee's agent and attorney-in-fact, to act for and on Employee's behalf and stead to execute and file any such application or\napplications and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent, copyright, or other analogous protection thereon with the same legal force and effect as if executed by\nEmployee.\n3. Non-C ompetition. Employee holds an executive or management position with Tanning in which Employee manages portions of the business operations of Tanning and supervises or oversees other\nemployees. Employee is considered a member of Tanning's executive or management team or a member of professional staff supporting Tanning‘s executive or management team, and a key employee ofTanning\nwhose efforts are integral to Tanning's business and for which Employee receives commensurately high compensation and benefits. Tanning has invested and/or will invest considerable time and money in the\ndevelopmentand enhancementof Employee's education, training and skills and the knowledge ofTanning‘s unique business, which business is worldwide in scope and market. This enhanced skill and knowledge is\na substantial asset of Tanning and will be the principal reason thatTanning continues the employment relationship and continues to compensate Employee for Employee's work. In addition, Employee has or will\nbecome aware of Confidential Information, which Confidential Information in the hands of a competitor or potential competitor would cause substantial loss and damage to Tanning and/or its customers and clients.\nFinally, Employee will have close customer contact, which would enable Employee to divert customer trade. Employee acknowledges that Employee's employment creates a relationship of confidence and trust\nbetween Tanning and Employee with respect to the Confidential Information. Employee also acknowledges the highly competitive nature of Tanning‘s business. In consideration of the above matters, Employee\nagrees and acknowledges that it is reasonable, necessary and appropriate in order to protect the immediate interests ofand avoid substantial injury to Tanning for Employee to accept the following restrictions on\nEmployee's right to work or be employed in a fashion which will compete with Tanning's business and type of business.\nEmployee owes a duty of loyalty to Tanning to act solely for Tanning in all matters connected with his or her employment. Employee will not, during the Period of Employment, and for one year after the\ntermination of employment for any reason, compete with Tanning by directly or indirectly, alone or in concert or cooperation with any other person or entity, taking any of the following actions: (a) owning, managing,\noperating, joining, controlling or providing services to, aiding or assisting any business entity, regardless of form, to engage in the business of, develop, seek to develop, market, produce or provide any commercial\nproduct or sen/ice in the nature of those provided by, or under development by, or othenNise compete with, Tanning during the Period of Employment; (b) serving as an employee, agent, consultant, officer, director,\nrepresentative, manager, partner, landlord or creditor of any such business entity or enterprise described in (a); or (c) inducing or attempting to induce any customer, supplier, or business relation ofTanning to cease\ndoing business with Tanning, to transfer all or any portion of their business away from Tanning or to any such business entity or enterprise described in (a), or in any other way interfering with the relationship between\nany customer, supplier or business relation and Tanning. This non-competition obligation shall apply to North America and any other country where Tanning or any of its subsidiaries or affiliates are actively engaged\nin or pursuing business during the Employee's Period of Employment. This paragraph shall not prohibit the ownership by Employee of less than 5% of any publicly traded corporation, provided that Employee is not\nothenNise engaged with such corporation in any of the activities prohibited by this section 3. The time period of the restrictions set forth in this section shall be extended for any period of time that Employee is found to\nbe in violation of any provision of this section 3.\n4. Non-Solicitation. Employee shall not (whether alone or as a partner orjoint venture with any other person or entity, or as an officer, director, shareholder, employee, consultant, representative, manager or\nagent ofany company) during the Period of Employment, [and for one year after the termination of employment for any reason, directly or indirectly: (1) recruit, solicit, attempt to persuade, or assist in the recruitment\nor solicitation of the employment or sen/ices of any person who is employed by Tanning, or any former employee ofTanning whose employment has been terminated for less than six (6) months; or (2) solicit, directly\nor indirectly, the business of any customer, supplier, or business relation of tanning on behalf of any business competitive with Tanning's then-current business. The time period of the restrictions set forth in this\nsection shall be extended for any period of time that Employee is found to be in violation of any provision ofthis section 4.\n5. Reasonableness. If any court shall determine that the duration, geographic limitations, subject or scope of any restriction contained in sections 3 or 4 are unenforceable, it is the intention of the parties that\nsections 3 and 4 shall not thereby be terminated but shall be deemed amended to the extent required to make it valid and enforceable, such amendment to apply only with respect to the operation of the section in the\njurisdiction of the court that has made such adjudication.\n6. Non-Disparagement. Employee agrees that, other than as required by law, through the Period of Employment and thereafter, he or she shall not make or publish, nor cause or attempt to cause any other\nperson to make or publish, any statement, either written or oral, regarding Tanning, its directors, officers or employees, that is defamatory or disparaging or that reflects negatively upon the character, personality,\nintegrity or performance ofany of them, or that is or reasonably could be expected to be damaging to the reputation ofany of them. Employee further agrees that, through the Period of Employmentand thereafter, he\nshall not discourage, or attempt to discourage, any person, firm, corporation or business entity from doing business with, or utilizing the sen/ices of, Tanning.\n7. Affiliated Entities. Employee understands thatTanning's business may be carried out by or in conjunction with affiliated companies or subsidiaries. Employee agrees that Employee's obligations of\nconfidentiality, non-competition and non-disparagement, shall apply equally to the Confidential Information, business and employees ofTanning‘s subsidiaries and affiliates. For such purposes, any reference to\nTanning in this Agreementshall also be deemed to be a reference to its subsidiaries and affiliates.\nB. Remedies for Breach of Non-Disclosure/Non-Compete/Non-Solicitation/Non-Disparagement Provisions. Employee acknowledges and agrees that the provisions of this Agreement are essential to Tanning, are\nreasonable and necessary to protect the legitimate interests of Tanning, and that the damages sustained by Tanning as a result of a breach of the provisions in this Agreement will subjectTanning to immediate,\nirreparable harm and damage, the amount of which, although substantial, cannot be reasonably ascertained, and that recovery of damages at law will not be an adequate remedy. Employee therefore agrees that\nTanning, in addition to any other remedy it may have under this Agreement or at law, shall be entitled to injunctive and other equitable relief to prevent or curtail any breach of any provision of this Agreement. In the\nevent suit or action is instituted to enforce this Agreement, including, but not limited to, suit for a temporary restraining order or preliminaiy or permanent injunction, the prevailing party shall be entitled to costs and\nreasonable attorneys' fees. Employee waives any right to the posting of a bond in the event of an issuance of a temporaiy restraining order, preliminary injunction or permanent injunction upon the issuance of such an\norder by a court of competentjurisdiction.\n9. Employee Notification Requirement. During the Period of Employment, and during any subsequent period of time that Employee is reasonably likely to be subject to a continuing obligation under the terms of\nthis Agreement, Employee will notify Tanning ofany change of address, and will identify and notify Tanning of each and any new job or other business activity in which Employee plans to engage, together with the\nname and address of the new employer and a reasonably detailed description of the nature of the Employee's new position with such new employer sufficient forTanning to be able to enforce its rights under this\nAgreement.\n10. Former Employment or Work. Employee represents, acknowledges and agrees that Employee has not brought, and will not bring with Employee, or use in the performance of Employee's duties for Tanning,\nany materials or documents of any former employer, client, person, or entity of any type, which are not generally available to the public, unless Employee has obtained written authorization for the possession and use\nofsuch materials or documents and provided such authorization to Tanning. Employee also understands and agrees that, in Employee's employment with Tanning, Employee shall not breach any obligation of\nconfidentiality or legal duty that Employee has to any former employer or client and agrees that Employee will fulfill any and all such obligations during Employee's Period of Employment. Employee agrees to\nindemnify and hold Tanning harmless with respect to any breach ofthis provision pursuant to the terms of paragraph 14 below.\n1. No Conflicts. Employee represents and warrants that, to the best of his knowledge and belief, delivery and performance of this Agreement does not violate any applicable law, regulation, order, judgment or\ncecree or any agreement to which Employee is a party or by which he or she is bound.\n2. Assignment. This Agreement shall bind and benefit the parties hereto, and to the extent necessary to carry out its intentions, the legal and personal representatives of the parties. This Agreement may not be\nassigned without the written permission of the parties, except thatTanning may assign this Agreement to any successor ofTanning by reason of reorganization, merger, consolidation, or the partial or complete sale of\n'anning‘s business and/or assets.\n3. Indemnification and Remedy. Each party agrees to indemnify and hold harmless the other againstany and all damages, claims, losses or expenses, including reasonable attorney's fees, arising from or\nrelating to any breach of this Agreement.\n4. Waiver. Neither the delay nor failure by Tanning or Employee to enforce any provision or exercise any right under this Agreement, nor partial or single enforcement or exercise of any such provision or right,\nshall constitute a waiver of that or any other provision or right.\n \n5. Governing Law and Venue. This Agreement shall be interpreted and enforced under the laws of the State ofColorado applicable to contracts made to be performed entirely within Colorado. Except as\nnecessary to enforce Tanning's rights pursuant to paragraphs 2 through 8 above, to the extent thatany action is brought in a court of law in connection with this Agreement, the exclusive venue for such action shall\nbe a court of appropriate jurisdiction, including the Federal courts, located in the City and County of Denver, Colorado.\n16. Survival. The provisions of this Agreement that by their nature are intended to survive, including without limitation the confidentiality, non-disclosure, non-competition, non-solicitation, non-disparagement and\nindemnification provisions, shall sun/ive the termination of this Agreement.\n17. Arbitration. Except with respect to an action by Tanning to seek to enforce its legal orequitable rights pursuant to paragraphs 2 through 8 above, and afterthe exhaustion ofall applicable administrative\nremedies, any controversy or claim arising out of or related to this Agreement, or Employee's employment, including disputes arising under state and federal anti-discrimination and civil rights laws, shall be resolved\nby arbitration in Denver, Colorado under the Commercial Rules of the American Arbitration Association in effect at the time such controversy or claim arises (the "Rules") by one arbitrator selected pursuant to the\nRules, except that the parties specifically authorize the Arbitrator to set a schedule for, accept the submission of and dispositively rule on any or all of the issues raised in motion(s) and supporting briefs for summary\njudgment priorto conducting any such arbitration. The award of the arbitrator shall be in writing, shall be final and binding upon the parties, and may, in appropriate circumstances, include injunctive relief. Should any\nparty fail to appear or be represented at the arbitration proceedings after due notice in accordance with the Rules, then the arbitrator may nevertheless render a decision in the absence of that party, and such decision\nshall have the same force and effect as if the absent party had been present, whether or not itshalI be adverse to the interests of that party. Any award rendered hereunder may be entered for enforcement, if\nnecessary, in any court of competentjurisdiction, and the party against whom enforcement is sought shall bear the expenses, including attorneys‘ fees, of enforcement.\n18. Interpretation. In the event thatany provision in this Agreementshall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect\nany other provision of this Agreement, but this Agreement shall be construed as if such provision had never been contained herein. Ifany provision in this Agreement shall be held to be excessively broad as to\nduration, activity orsubject in anyjurisdiction, itshalI be construed by limiting and reducing the provision thatis deemed excessively broad. A limitation or reduction in the application ofany provision in one jurisdiction\nshall not affect the application of the same provision in any otherjurisdiction.\n19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall together constitute one and the same Agreement.\n20. Entire Agreement and Amendment. This Agreement constitutes the entire agreement between Tanning and Employee regarding its subject matter, and any verbal or written communication between the parties\npriorto the adoption of this Agreement, shall be deemed merged herein and of no further force and effect. This Agreement may only be altered or amended by a writing signed by the Employee and an authorized\nofficer ofTanning, and no officer, employee, agent or representative ofTanning has the authority to orally modify any term of this Agreement including, without limitation, the at-will nature of Employee's employment.\nAgreed to and Accepted:\nTANNING TECHNOLOGY EMPLOYEE\nCORPORATION\nBy: BY:\nPrinted Name: Melinda Hall Printed Name: Barrett L. Sweet\nTitle: Director of Human Resources Date:\nDate:J uly 29,2002\nAddress and P hone:\n4600 South Syracuse St., Suite 1200 850 North State, Apt. 20C\nDenver, CO 80237 Chicago, IL 60610\n303-220-9944 312-337-6340\nQuickLinks\nExhibit 10.1	EX-10.1 3 a2092398zex-10_1.htm EXHIBIT 10.1\nQuickLinks Click here to rapidly navigate through this document\nExhibit 10.1\nCONFIDENTIALITY, PROPRIETARY RIGHTS\nAND NON-COMPETITION AGREEMENT\nPARTIES:\nEMPLOYER:Tanning Technology Corporation ("Tanning")\nand\nEMPLOYEE Barrett Sweet ("Employee")\nAGREEMENT:\nAs a condition of employment with Tanning, mployee agrees to the following terms and conditions:\n1.\nDuties/Best fforts. Employee agrees to devote his or her full professional time and attention to the business of Tanning and those duties and obligations entrusted to or required of Employee. Employee shall\nat all times perform Employee's duties faithfully, industriously and to the best of Employee's ability, experience and talent\n2.\nConfidentiality, Non-Disclosure and roprietary Rights.\n(a) Employee understands and agrees that the following classes of information (collectively "Confidential Information") related to Tanning's business or to which Employee may become exposed in the course of\nhis or her employment, whether or not in writing and whether or not formally marked, are and shall remain the exclusive and confidential property of Tanning:\n(i) Data, software, processes, client contacts, client/customer lists, service techniques, market development and expansion plans, personnel training and development methods, internal business\norganization and methods, "Inventions" (as defined below), and other technical, business and financial information;\n(ii) Information and data provided to Tanning from time to time by third parties on the understanding and condition that such data and information wil be kept confidential;\n(iii) Ideas, processes, software, information, data, or other items that may be developed by Employee from time to time as work product of the employment relationship.\nAny information that is generally known to the public (other than as a result of disclosure by Employee) wil not be deemed Confidential Information.\n(b) Throughout the time Employee is employed by Tanning (the "Period of Employment"), and thereafter, Employee will not use or disclose Confidential Information, and will take all reasonable precautions to\nprevent any person or entity from gaining access to any of the Confidential Information, other than as required in the performance of Employee's duties with Tanning. In order to satisfy the needs of Tanning's clients\nand customers, Employee wil sign any confidentiality agreement reasonably requested by such third parties and/or Tanning. Employee understands that Employee is not permitted to use the Confidential Information\nfor his or her own purposes or benefit.\n(c) Except as required in the performance of Employee's duties to Tanning, E mployee shall not duplicate in any way or remove from the work premises any property of Tanning or its business associates,\ncustomers or clients, including but not limited to any Confidential Information. At the end of the Employee's Period of Employment, Employee wil return to Tanning all such property, including all copies of materials\nembodying Confidential Information, and including, without limitation, files and other information contained on paper, electronic, optical or other media, Tanning credit cards, keys and security passes, computer\nequipment and programs, cel phone, and similar items.\n(d) Employee hereby agrees to assign, and does hereby assign, to Tanning all of Employee's right, title and interest in or to any and all ideas, concepts, know-how, techniques, processes, inventions, discoveries,\ndevelopments, software, works of authorship, innovations and improvements (collectively "Inventions") conceived or made by Employee during Employee's Period of Employment, whether alone or in concert with\nothers, whether patentable or subject to potential copyrights or not, except those that the Employee developed or develops entirely on Employee's own time without using the equipment, supplies, facilities,\nor\nConfidential Information of Tanning, and provided that such Inventions are unrelated to the business (whether existing or proposed of Tanning Employee agrees to promptly inform and disclose all Inventions to\nTanning in writing, and with respect to those Inventions that Employee is required to assign to Tanning hereunder, to provide all assistance reasonably requested by Tanning in the preservation of its interests in the\nInventions (such as by making applications, executing documents, testifying, etc.), such assistance to be provided at Tanning's expense but without additional compensation to Employee. Employee agrees that all\nsuch Inventions are Confidential Information and are the sole and absolute property of Tanning.\n(e) Employee agrees that any work or Invention created or prepared by Employee during Employee's Period of Employment which is subject to assignment under paragraph (d) above, and which is eligible for\nUnited States copyright protection or protection under the Universal Copyright Convention, the Berne Copyright Convention and/or the Buenos Aires Copyright Convention, shall be a "work made for hire" and the sole\nand absolute property of Tanning. In the event that any such work is deemed not to be a "work made for hire", E mployee hereby assigns all right, title and interest in and to the copyright in such work to Tanning, and\nagrees to provide all assistance reasonably requested in the establishment, preservation and enforcement of Tanning's copyright in such work, such assistance to be provided at Tanning's expense but without any\nadditiona compensation to Employee.\n(f) In the event tha Tanning is unable, as a result of inability to find the Employee after a reasonably diligent effort, as a result of the death or incapacity of the Employee, or as a result of the unjustified refusal\nof\nEmployee, to secure Employee's signature on any documents, applications, or letters patent, copyright or other analogous protection relating to Inventions or other proprietary rights, Employee hereby irrevocably\ndesignates and appoints Tanning, by its duly authorized officers and agents as Employee's agent and attorney-in-fact to act for and on Employee's behalf and stead to execute and file any such application or\napplications and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent, copyright, or other analogous protection thereon with the same legal force and effect as if executed by\nEmployee.\n3. Non-Competition. Employee holds an executive or management position with Tanning in which Employee manages portions of the business operations of Tanning and supervises or oversees other\nemployees. Employee is considered a member of Tanning's executive or management team or a member of professional staff supporting Tanning's executive or management team, and a key employee of Tanning\nwhose efforts are integral to Tanning's business and for which Employee receives commensurately high compensation and benefits. Tanning has invested and/or will invest considerable time and money in the\ndevelopment and enhancement of Employee's education, training and skills and the knowledge of Tanning's unique business, which business is worldwide in scope and market. This enhanced skill\nand\nknowledge\nis\na substantial asset of Tanning and will be the principal reason that Tanning continues the employment relationship and continues to compensate Employee for Employee's work In addition, Employee has or will\nbecome aware of Confidential Information, which Confidential Information in the hands of a competitor or potential competitor would cause substantial loss and damage to Tanning and/or its customers and clients.\nFinally, Employee wil have close customer contact, which would enable Employee to divert customer trade. Employee acknowledges that Employee's employment creates a relationship of confidence and trust\nbetween Tanning and Employee with respect to the Confidential Information. mployee also acknowledges the highly competitive nature of Tanning's business. In consideration of the above matters, Employee\nagrees and acknowledges that it is reasonable, necessary and appropriate in order to protect the immediate interests of and avoid substantial injury to Tanning for Employee to accept the following restrictions\non\nEmployee's right to work or be employed in a fashion which will compete with Tanning's business and type of business.\nEmployee owes a duty of loyalty to Tanning to act solely for Tanning in all matters connected with his or her employment. Employee will not during the Period of Employment, and for one year after the\ntermination of employment for any reason, compete with Tanning by directly or indirectly, alone or in concert or cooperation with any other person or entity, taking any of the following actions: (a) owning, managing,\noperating, joining, controlling or providing services to, aiding or assisting any business entity, regardless of form, to engage in the business of, develop, seek to develop, market, produce or provide any commercial\nproduct or service in the nature of those provided by, or under development by, or otherwise compete with, Tanning during the Period of Employment; (b) serving as an employee, agent, consultant, officer, director,\nrepresentative, manager, partner, landlord or creditor of any such business entity or enterprise described in (a); or (c) inducing or attempting to induce any customer, supplier, or business relation of Tanning to\ncease\ndoing business with Tanning, to transfer all or any portion of their business away from Tanning or to any such business entity or enterprise described in (a), or in any other way interfering with the relationship between\nany customer, supplier or business relation and Tanning This non-competition obligation shall apply to North America and any other country where Tanning or any of its subsidiaries or affiliates are actively engaged\nin or pursuing business during the Employee's Period of Employment. This paragraph shal not prohibit the ownership by Employee of less than 5% of any publicly traded corporation, provided that mployee is not\notherwise engaged with such corporation in any of the activities prohibited by this section 3. The time period of the restrictions set forth in this section shall be extended for any period of time that Employee is found to\nbe in violation of any provision of this section 3.\n4. Non-Solicitation. Employee shal not (whether alone or as a partner or joint venture with any other person or entity, or as an officer, director, shareholder, employee, consultant, representative, manager or\nagent of any company) during the Period of Employment, [and for one year after the termination of employment for any reason, directly or indirectly: (1) recruit, solicit, attempt to persuade, or assist in the recruitment\nor\nsolicitation of the employment or services of any person who is employed by Tanning, or any former employee of Tanning whose employment has been terminated for less than six (6) months; or (2) solicit, directly\nor indirectly, the business of any customer, supplier, or business relation of tanning on behalf of any business competitive with Tanning's then-current business. The time period of the restrictions set forth in this\nsection shal be extended for any period of time that Employee is found to be in violation of any provision of this section 4.\n5.\nReasonableness. If any court shall determine that the duration, geographic limitations, subject or scope of any restriction contained in sections 3 or 4 are unenforceable, is the intention of the parties that\nsections 3 and 4 shal not thereby be terminated but shal be deemed amended to the extent required to make it valid and enforceable, such amendment to apply only with respect to the operation of the section in the\njurisdiction of the court that has made such adjudication.\n6.\nNon-Disparagement. mployee agrees that, other than as required by law, through the Period of Employment and thereafter, he or she shal not make or publish, nor cause or attempt to cause any other\nperson to make or publish, any statement, either written or oral, regarding Tanning, its directors, officers or employees, that is defamatory or disparaging or that reflects negatively upon the character, personality,\nintegrity or performance of any of them, or that is or reasonably could be expected to be damaging to the reputation of any of them. Employee further agrees that, through the Period of Employment and thereafter,\nhe\nshall not discourage, or attempt to discourage, any person, firm, corporation or business entity from doing business with, or utilizing the services of, Tanning.\n7.\nAffiliated Entities. Employee understands that Tanning's business may be carried out by or in conjunction with affiliated companies or subsidiaries. Employee agrees that mployee's obligations\nof\nconfidentiality, non-competition and non-disparagement, shall apply equally to the Confidential Information, business and employees of Tanning's subsidiaries and affiliates For such purposes, any reference\nto\nTanning in this Agreement shall also be deemed to be a reference to its subsidiaries and affiliates.\n8.\nemedies for Breach of lon-Disclosurelnon:competenlonsolicitationnon-Disparagemen Provisions. Employee acknowledges and agrees that the provisions of this Agreement are essential to Tanning, are\nreasonable and necessary to protect the legitimate interests of Tanning, and that the damages sustained by Tanning as a result of a breach of the provisions in this Agreement will subject Tanning to immediate,\nirreparable harm and damage, the amount of which, although substantial, cannot be reasonably ascertained, and that recovery of damages at law will not be an adequate remedy. Employee therefore agrees that\nTanning, in addition to any other remedy it may have under this Agreement or at law, shal be entitled to injunctive and other equitable relief to prevent or curtail any breach of any provision of this Agreement. In the\nevent sui or action is instituted to enforce this Agreement, including, but not limited to, suit for a temporary restraining order or preliminary or permanent injunction, the prevailing party shall be entitled to costs and\nreasonable attorneys fees. Employee waives any right to the posting of a bond in the event of an issuance of a temporary restraining order, preliminary injunction or permanent injunction upon the issuance of such\nan\norder by a court of competent jurisdiction.\n9. Employee Notification Requirement. During the Period of Employment, and during any subsequent period of time that Employee is reasonably likely to be subject to a continuing obligation under the terms of\nthis Agreement, Employee will notify Tanning of any change of address, and wil identify and notify Tanning of each and any new job or other business activity in which Employee plans to engage, together with\nthe\nname and address of the new employer and a reasonably detailed description of the nature of the Employee's new position with such new employer sufficient for Tanning to be able to enforce its rights under this\nAgreement.\n10. Former Employment or Work. Employee represents, acknowledges and agrees that Employee has not brought, and wil not bring with Employee, or use in the performance of Employee's duties for Tanning,\nany materials or documents of any former employer, client, person, or entity of any type, which are not generally available to the public unless Employee has obtained written authorization for the possession and use\nof such materials or documents and provided such authorization to Tanning Employee also understands and agrees that, in Employee's employment with Tanning, Employee shal not breach any obligation of\nconfidentiality or legal duty that mployee has to any former employer or client and agrees that Employee wil fulfill any and all such obligations during Employee's Period of Employment. Employee agrees to\nindemnify and hold Tanning harmless with respect to any breach of this provision pursuant to the terms of paragraph 14 below.\n11. No Conflicts. Employee represents and warrants that, to the best of his knowledge and belief, delivery and performance of this Agreement does not violate any applicable law, regulation, order, judgment or\ndecree or any agreement to which Employee is a party or by which he or she is bound.\n12. Assignment. This Agreement shall bind and benefit the parties hereto, and to the extent necessary to carry out its intentions, the legal and personal representatives of the parties. This Agreement may not be\nassigned without the written permission of the parties, except that Tanning may assign this Agreement to any successor of Tanning by reason of reorganization, merger, consolidation, or the partial or complete sale\nof\nTanning's business and/or assets.\n13.\nIndemnification and Remedy. Each party agrees to indemnify and hold harmless the other against any and all damages, claims, losses or expenses, including reasonable attorney's fees, arising from or\nrelating to any breach of this Agreement.\n14.\nWaiver. Neither the delay nor failure by Tanning or Employee to enforce any provision or exercise any right under this Agreement, nor partial or single enforcement or exercise of any such provision\nor\nright,\nshall constitute a waiver of that or any other provision or right.\n15. Governing Law and Venue. This Agreement shall be interpreted and enforced under the laws of the State of Colorado applicable to contracts made to be performed entirely within Colorado. E xcept\nas\nnecessary to enforce Tanning's rights pursuant to paragraphs 2 through 8 above, to the extent that any action is brought in a court of law in connection with this Agreement, the exclusive venue for such action shall\nbe a court of appropriate jurisdiction, including the Federal courts, located in the City and County of Denver, Colorado.\n16. Survival. The provisions of this Agreement that by their nature are intended to survive, including without limitation the confidentiality, non-disclosure, non-competition, non-solicitation, non-disparagement and\nindemnification provisions, shall survive the termination of this Agreement.\n17. Arbitration. Except with respect to an action by Tanning to seek to enforce its legal or equitable rights pursuant to paragraphs 2 through 8 above, and after the exhaustion of all applicable administrative\nremedies, any controversy or claim arising out of or related to this Agreement, or Employee's employment, including disputes arising under state and federal anti-discrimination and civil rights laws, shal be resolved\nby arbitration in Denver, Colorado under the Commercial Rules of the American Arbitration Association in effect at the time such controversy or claim arises (the "Rules") by one arbitrator selected pursuant to the\nRules, except that the parties specifically authorize the Arbitrator to set a schedule for, accept the submission of and dispositively rule on any or all of the issues raised in motion(s) and supporting briefs for summary\njudgment prior to conducting any such arbitration. The award of the arbitrator shall be in writing, shal be final and binding upon the parties, and may, in appropriate circumstances, include injunctive relief. Should any\nparty fai to appear or be represented at the arbitration proceedings after due notice in accordance with the Rules, then the arbitrator may nevertheless render a decision in the absence of that party, and such decision\nshall have the same force and effect as if the absent party had been present whether or not it shall be adverse to the interests of that party. Any award rendered hereunder may be entered for enforcement, if\nnecessary, in any court of competent jurisdiction, and the party against whom enforcement is sought shall bear the expenses, including attorneys fees, of enforcement.\n18.\nInterpretation. In the event that any provision in this Agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shal not affect\nany other provision of this Agreement, but this Agreement shall be construed as if such provision had never been contained herein. If any provision in this Agreement shall be held to be excessively broad as to\nduration, activity or subject in any jurisdiction, it shall be construed by limiting and reducing the provision that is deemed excessively broad. A limitation or reduction in the application of any provision in one jurisdiction\nshall not affect the application of the same provision in any other jurisdiction.\n19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which shall together constitute one and the same Agreement.\n20. Entire Agreement and Amendment. This Agreement constitutes the entire agreement between Tanning and Employee regarding its subject matter, and any verbal or written communication between the parties\nprior to the adoption of this Agreement, shall be deemed merged herein and of no further force and effect. This Agreement may only be altered or amended by a writing signed by the Employee and an authorized\nofficer of Tanning, and no officer, employee, agent or representative of Tanning has the authority to orally modify any term of this Agreement including, without limitation, the at-will nature of Employee's employment\nAgreed to and Accepted:\nTANNING TECHNOLOGY\nEMPLOYEE\nCORPORATION\nBy:\nBy:\nPrinted Name: Melinda Hall\nPrinted Name: Barrett L. Sweet\nTitle: Director of Human Resources\nDate:\nDate: J uly 29 2002\nAddress and Phone:\n4600 South Syracuse St., Suite 1200\n850 North State, Apt 20C\nDenver, CO 80237\nChicago, IL 60610\n303-220-9944\n312-337-6340\nQuickLinks\nExhibit 10.1	EX-10 .1 3 a2092398zex-10_1.htm EXHIBIT 10.1\nQuickLinks -- Click here to rapidly navigate through this document\nExhibit 10.1\nCONFIDENTIALITY, PROPRIETARY RIGHTS\nAND NON-COMPETITION AGREEMENT\nPARTIES:\nEMPLOYER: Tanning Technology Corporation ("Tanning")\nand\nEMPLOYEE: Barrett L. Sweet ("Employee")\nAGREEMENT:\nAs a condition of employment with Tanning, Employee agrees to the following terms and conditions:\n1. Duties/Best Efforts. Employee agrees to devote his or her full professional time and attention to the business of Tanning and those duties and obligations entrusted to or required of Employee. Employee shall\nat all times perform Employee's duties faithfully, industriously and to the best of Employee's ability, experience and talent.\n2. Confidentiality, Non-Disclosure and Proprietary Rights.\n(a) Employee understands and agrees that the following classes of information (collectively "Confidential Information") related to Tanning's business or to which Employee may become exposed in the course of\nhis or her employment, whether or not in writing and whether or not formally marked, are and shall remain the exclusive and confidential property of Tanning:\n(i) Data, software, processes, client contacts, client/customer lists, service techniques, market development and expansion plans, personnel training and development methods, internal business\norganization and methods, "Inventions" (as defined below), and other technical, business and financial information;\n(ii) Information and data provided to Tanning from time to time by third parties on the understanding and condition that such data and information will be kept confidential;\n(iii) Ideas, processes, software, information, data, or other items that may be developed by Employee from time to time as work product of the employment relationship.\nAny information that is generally known to the public (other than as a result of disclosure by Employee) will not be deemed Confidential Information.\n(b) Throughout the time Employee is employed by Tanning (the "Period of Employment") , and thereafter, Employee will not use or disclose Confidential Information, and will take all reasonable precautions to\nprevent any person or entity from gaining access to any of the Confidential Information, other than as required in the performance of Employee's duties with Tanning. In order to satisfy the needs of Tanning's clients\nand customers, Employee will sign any confidentiality agreement reasonably requested by such third parties and/or Tanning. Employee understands that Employee is not permitted to use the Confidential Information\nfor his or her own purposes or benefit.\n(c) Except as required in the performance of Employee's duties to Tanning, Employee shall not duplicate in any way or remove from the work premises any property of Tanning or its business associates,\ncustomers or clients, including but not limited to any Confidential Information. At the end of the Employee's Period of Employment, Employee will return to Tanning all such property, including all copies of materials\nembodying Confidential Information, and including, without limitation, files and other information contained on paper, electronic, optical or other media, Tanning credit cards, keys and security passes, computer\nequipment and programs, cell phone, and similar items.\n(d) Employee hereby agrees to assign, and does hereby assign, to Tanning all of Employee's right, title and interest in or to any and all ideas, concepts, know-how, techniques, processes, inventions, discoveries,\ndevelopments, software, works of authorship, innovations and improvements (collectively "Inventions") conceived or made by Employee during Employee's Period of Employment, whether alone or in concert with\nothers, whether patentable or subject to potential copyrights or not, except those that the Employee developed or develops entirely on Employee's own time without using the equipment, supplies, facilities, or\nConfidential Information of Tanning, and provided that such Inventions are unrelated to the business (whether existing or proposed) of Tanning. Employee agrees to promptly inform and disclose all Inventions to\nTanning in writing, and with respect to those Inventions that Employee is required to assign to Tanning hereunder, to provide all assistance reasonably requested by Tanning in the preservation of its interests in the\nInventions (such as by making applications, executing documents, testifying, etc.) , such assistance to be provided at Tanning's expense but without additional compensation to Employee. Employee agrees that all\nsuch Inventions are Confidential Information and are the sole and absolute property of Tanning.\n(e) Employee agrees that any work or Invention created or prepared by Employee during Employee's Period of Employment which is subject to assignment under paragraph (d) above, and which is eligible for\nUnited States copyright protection or protection under the Universal Copyright Convention, the Berne Copyright Convention and/or the Buenos Aires Copyright Convention, shall be a "work made for hire" and the sole\nand absolute property of Tanning. In the event that any such work is deemed not to be a "work made for hire", Employee hereby assigns all right, title and interest in and to the copyright in such work to Tanning, and\nagrees to provide all assistance reasonably requested in the establishment, preservation and enforcement of Tanning's copyright in such work, such assistance to be provided at Tanning's expense but without any\nadditional compensation to Employee.\n(f) In the event that Tanning is unable, as a result of inability to find the Employee after a reasonably diligent effort, as a result of the death or incapacity of the Employee, or as a result of the unjustified refusal of\nEmployee, to secure Employee's signature on any documents, applications, or letters patent, copyright or other analogous protection relating to Inventions or other proprietary rights, Employee hereby irrevocably\ndesignates and appoints Tanning, by its duly authorized officers and agents as Employee's agent and attorney-in-fact, to act for and on Employee's behalf and stead to execute and file any such application or\napplications and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent, copyright, or other analogous protection thereon with the same legal force and effect as if executed by\nEmployee.\n3. Non-Competition. Employee holds an executive or management position with Tanning in which Employee manages portions of the business operations of Tanning and supervises or oversees other\nemployees. Employee is considered a member of Tanning's executive or management team or a member of professional staff supporting Tanning's executive or management team, and a key employee of Tanning\nwhose efforts are integral to Tanning's business and for which Employee receives commensurately high compensation and benefits. Tanning has invested and/or will invest considerable time and money in the\ndevelopment and enhancement of Employee's education, training and skills and the knowledge of Tanning's unique business, which business is worldwide in scope and market. This enhanced skill and knowledge is\na substantial asset of Tanning and will be the principal reason that Tanning continues the employment relationship and continues to compensate Employee for Employee's work. In addition, Employee has or will\nbecome aware of Confidential Information, which Confidential Information in the hands of a competitor or potential competitor would cause substantial loss and damage to Tanning and/or its customers and clients.\nFinally, Employee will have close customer contact, which would enable Employee to divert customer trade. Employee acknowledges that Employee's employment creates a relationship of confidence and trust\nbetween Tanning and Employee with respect to the Confidential Information. Employee also acknowledges the highly competitive nature of Tanning's business. In consideration of the above matters, Employee\nagrees and acknowledges that it is reasonable, necessary and appropriate in order to protect the immediate interests of and avoid substantial injury to Tanning for Employee to accept the following restrictions on\nEmployee's right to work or be employed in a fashion which will compete with Tanning's business and type of business.\nEmployee owes a duty of loyalty to Tanning to act solely for Tanning in all matters connected with his or her employment. Employee will not, during the Period of Employment, and for one year after the\ntermination of employment for any reason, compete with Tanning by directly or indirectly, alone or in concert or cooperation with any other person or entity, taking any of the following actions: (a) owning, managing,\noperating, joining, controlling or providing services to, aiding or assisting any business entity, regardless of form, to engage in the business of, develop, seek to develop, market, produce or provide any commercial\nproduct or service in the nature of those provided by, or under development by, or otherwise compete with, Tanning during the Period of Employment; (b) serving as an employee, agent, consultant, officer, director,\nrepresentative, manager, partner, landlord or creditor of any such business entity or enterprise described in (a); or (c) inducing or attempting to induce any customer, supplier, or business relation of Tanning to cease\ndoing business with Tanning, to transfer all or any portion of their business away from Tanning or to any such business entity or enterprise described in (a), or in any other way interfering with the relationship between\nany customer, supplier or business relation and Tanning. This non-competition obligation shall apply to North America and any other country where Tanning or any of its subsidiaries or affiliates are actively engaged\nin or pursuing business during the Employee's Period of Employment. This paragraph shall not prohibit the ownership by Employee of less than 5% of any publicly traded corporation, provided that Employee is not\notherwise engaged with such corporation in any of the activities prohibited by this section 3. The time period of the restrictions set forth in this section shall be extended for any period of time that Employee is found to\nbe in violation of any provision of this section 3.\n4. Non-Solicitation. Employee shall not (whether alone or as a partner or joint venture with any other person or entity, or as an officer, director, shareholder, employee, consultant, representative, manager or\nagent of any company) during the Period of Employment, [and for one year after the termination of employment for any reason, directly or indirectly: (1) recruit, solicit, attempt to persuade, or assist in the recruitment\nor solicitation of the employment or services of any person who is employed by Tanning, or any former employee of Tanning whose employment has been terminated for less than six (6) months; or (2) solicit, directly\nor indirectly, the business of any customer, supplier, or business relation of tanning on behalf of any business competitive with Tanning's then-current business. The time period of the restrictions set forth in this\nsection shall be extended for any period of time that Employee is found to be in violation of any provision of this section 4.\n5. Reasonableness. If any court shall determine that the duration, geographic limitations, subject or scope of any restriction contained in sections 3 or 4 are unenforceable, it is the intention of the parties that\nsections 3 and 4 shall not thereby be terminated but shall be deemed amended to the extent required to make it valid and enforceable, such amendment to apply only with respect to the operation of the section in the\njurisdiction of the court that has made such adjudication.\n6. Non-Disparagement. Employee agrees that, other than as required by law, through the Period of Employment and thereafter, he or she shall not make or publish, nor cause or attempt to cause any other\nperson to make or publish, any statement, either written or oral, regarding Tanning, its directors, officers or employees, that is defamatory or disparaging or that reflects negatively upon the character, personality,\nintegrity or performance of any of them, or that is or reasonably could be expected to be damaging to the reputation of any of them. Employee further agrees that, through the Period of Employment and thereafter, he\nshall not discourage, or attempt to discourage, any person, firm, corporation or business entity from doing business with, or utilizing the services of, Tanning.\n7. Affiliated Entities. Employee understands that Tanning's business may be carried out by or in conjunction with affiliated companies or subsidiaries. Employee agrees that Employee's obligations of\nconfidentiality, non-competition and non-disparagement, shall apply equally to the Confidential Information, business and employees of Tanning's subsidiaries and affiliates. For such purposes, any reference to\nTanning in this Agreement shall also be deemed to be a reference to its subsidiaries and affiliates.\n8. Remedies for Breach of Non-Disclosure/Non-Compete/Non-Solicitation/Non-Disparagement Provisions. Employee acknowledges and agrees that the provisions of this Agreement are essential to Tanning, are\nreasonable and necessary to protect the legitimate interests of Tanning, and that the damages sustained by Tanning as a result of a breach of the provisions in this Agreement will subject Tanning to immediate,\nirreparable harm and damage, the amount of which, although substantial, cannot be reasonably ascertained, and that recovery of damages at law will not be an adequate remedy. Employee therefore agrees that\nTanning, in addition to any other remedy it may have under this Agreement or at law, shall be entitled to injunctive and other equitable relief to prevent or curtail any breach of any provision of this Agreement. In the\nevent suit or action is instituted to enforce this Agreement, including, but not limited to, suit for a temporary restraining order or preliminary or permanent injunction, the prevailing party shall be entitled to costs and\nreasonable attorneys' fees. Employee waives any right to the posting of a bond in the event of an issuance of a temporary restraining order, preliminary injunction or permanent injunction upon the issuance of such an\norder by a court of competent jurisdiction.\n9. Employee Notification Requirement. During the Period of Employment, and during any subsequent period of time that Employee is reasonably likely to be subject to a continuing obligation under the terms of\nthis Agreement, Employee will notify Tanning of any change of address, and will identify and notify Tanning of each and any new job or other business activity in which Employee plans to engage, together with the\nname and address of the new employer and a reasonably detailed description of the nature of the Employee's new position with such new employer sufficient for Tanning to be able to enforce its rights under this\nAgreement.\n10. Former Employment or Work. Employee represents, acknowledges and agrees that Employee has not brought, and will not bring with Employee, or use in the performance of Employee's duties for Tanning,\nany materials or documents of any former employer, client, person, or entity of any type, which are not generally available to the public, unless Employee has obtained written authorization for the possession and use\nof such materials or documents and provided such authorization to Tanning. Employee also understands and agrees that, in Employee's employment with Tanning, Employee shall not breach any obligation of\nconfidentiality or legal duty that Employee has to any former employer or client and agrees that Employee will fulfill any and all such obligations during Employee's Period of Employment. Employee agrees to\nindemnify and hold Tanning harmless with respect to any breach of this provision pursuant to the terms of paragraph 14 below.\n11. No Conflicts. Employee represents and warrants that, to the best of his knowledge and belief, delivery and performance of this Agreement does not violate any applicable law, regulation, order, judgment or\ndecree or any agreement to which Employee is a party or by which he or she is bound.\n12. Assignment. This Agreement shall bind and benefit the parties hereto, and to the extent necessary to carry out its intentions, the legal and personal representatives of the parties. This Agreement may not be\nassigned without the written permission of the parties, except that Tanning may assign this Agreement to any successor of Tanning by reason of reorganization, merger, consolidation, or the partial or complete sale of\nTanning's business and/or assets.\n13. Indemnification and Remedy. Each party agrees to indemnify and hold harmless the other against any and all damages, claims, losses or expenses, including reasonable attorney's fees, arising from or\nrelating to any breach of this Agreement.\n14. Waiver. Neither the delay nor failure by Tanning or Employee to enforce any provision or exercise any right under this Agreement, nor partial or single enforcement or exercise of any such provision or right,\nshall constitute a waiver of that or any other provision or right.\n15. Governing Law and Venue. This Agreement shall be interpreted and enforced under the laws of the State of Colorado applicable to contracts made to be performed entirely within Colorado. Except as\nnecessary to enforce Tanning's rights pursuant to paragraphs 2 through 8 above, to the extent that any action is brought in a court of law in connection with this Agreement, the exclusive venue for such action shall\nbe a court of appropriate jurisdiction, including the Federal courts, located in the City and County of Denver, Colorado.\n16. Survival. The provisions of this Agreement that by their nature are intended to survive, including without limitation the confidentiality, non-disclosure, non-competition, non-solicitation, non-disparagement and\nindemnification provisions, shall survive the termination of this Agreement.\n17. Arbitration. Except with respect to an action by Tanning to seek to enforce its legal or equitable rights pursuant to paragraphs 2 through 8 above, and after the exhaustion of all applicable administrative\nremedies, any controversy or claim arising out of or related to this Agreement, or Employee's employment, including disputes arising under state and federal anti-discrimination and civil rights laws, shall be resolved\nby arbitration in Denver, Colorado under the Commercial Rules of the American Arbitration Association in effect at the time such controversy or claim arises (the "Rules") by one arbitrator selected pursuant to the\nRules, except that the parties specifically authorize the Arbitrator to set a schedule for, accept the submission of and dispositively rule on any or all of the issues raised in motion(s) and supporting briefs for summary\njudgment prior to conducting any such arbitration. The award of the arbitrator shall be in writing, shall be final and binding upon the parties, and may, in appropriate circumstances, include injunctive relief. Should any\nparty fail to appear or be represented at the arbitration proceedings after due notice in accordance with the Rules, then the arbitrator may nevertheless render a decision in the absence of that party, and such decision\nshall have the same force and effect as if the absent party had been present, whether or not it shall be adverse to the interests of that party. Any award rendered hereunder may be entered for enforcement, if\nnecessary, in any court of competent jurisdiction, and the party against whom enforcement is sought shall bear the expenses, including attorneys' fees, of enforcement.\n18. Interpretation. In the event that any provision in this Agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect\nany other provision of this Agreement, but this Agreement shall be construed as if such provision had never been contained herein. If any provision in this Agreement shall be held to be excessively broad as to\nduration, activity or subject in any jurisdiction, it shall be construed by limiting and reducing the provision that is deemed excessively broad. A limitation or reduction in the application of any provision in one jurisdiction\nshall not affect the application of the same provision in any other jurisdiction.\n19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall together constitute one and the same Agreement.\n20. Entire Agreement and Amendment. This Agreement constitutes the entire agreement between Tanning and Employee regarding its subject matter, and any verbal or written communication between the parties\nprior to the adoption of this Agreement, shall be deemed merged herein and of no further force and effect. This Agreement may only be altered or amended by a writing signed by the Employee and an authorized\nofficer of Tanning, and no officer, employee, agent or representative of Tanning has the authority to orally modify any term of this Agreement including, without limitation, the at-will nature of Employee's employment.\nAgreed to and Accepted:\nTANNING TECHNOLOGY\nCORPORATION\nEMPLOYEE\nBy:\nBy:\nPrinted Name: Melinda Hall\nPrinted Name: Barrett L. Sweet\nTitle: Director of Human Resources\nDate:\nDate: July 29, 2002\nAddress and Phone:\n4600 South Syracuse St. , Suite 1200\nDenver, CO 80237\n303-220-9944\n850 North State, Apt. 20C\nChicago, IL 60610\n312-337-6340\nQuickLinks\nExhibit 10.1
ff1acd5eeeed81b541c889eefa0753a7.pdf	effective_date jurisdiction party term	EX-10 .2 3 stwa_8k-ex1002.htm MUTUAL CONFIDENTIALITY AGREEMENT\nEXHIBIT 10.2\nKM Contract #CA-KMCC-2014-012\nMUTUAL CONFIDENTIALITY AGREEMENT\nThe Mutual Confidentiality Agreement (“Agreement”) is entered into this 15th day of July, 2014 (the “Effective Date”) by and between\nKinder Morgan Crude & Condensate LLC (“KMCC”) and Save the World Air, Inc. (“STWA”).\nWHEREAS, KMCC and STWA (hereinafter each individually referred to as a “Party” and collectively referred to as (the “Parties”)\ncontemplate exchanging information and holding discussions concerning a mutually beneficial business relationship (the “Transaction”):\nWHEREAS, the Parties have entered into this Agreement in order to ensure the confidentiality of all such information and the\nconfidentiality of the dicussions between the Parties regarding the Transaction and to prevent the disclosure of any such information to third\nparties except in accordance with the terms of this Agreement:\nWHEREAS, the Parties recognize that each other’s business involves specialized and proprietary knowledge, information, methods,\nprocesses, techniques and skills peculiar to their security and growth; and\nWHEREAS, the Discloser (as Defined below) would not provide such information without the protections set forth in this Agreement.\nNOW, THEREFORE, in consideration of the mutual agreements of the Parties contained, and for other good and valuable consideration,\nthe receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:\n1. Confidentiality. As used herein, (i) “Discloser” means any Confidential Information disclosed by either Party to the other Party; (ii)\n“Recipient” means any Confidential Information received by either Party from the other Party; and (iii) “Confidential Information” means any\nand all proprietary and non-public information regarding the Transaction or concerning the Discloser (whether prepared by the Discloser, its\nadvisors or otherwise and irrespective of the form of communication) furnished to Recipient or to its officers, directors, members, partners,\nemployees, affiliates, attorneys, agents, consultants, assigns, joint ventures, developers, vendors, investors, researchers, representatives or other\nsimilarly situated persons (collectively, “Representatives”) now or in the future by or on behalf of the Discloser, including but not limited to\ndocuments and information, oral or written, tangible or intangible, electronic or otherwise, generated or collected by Recipient which contain,\nreflect or are derived from any other Confidential Information furnished by or on behalf of the Discloser. Confidential Information shall include,\nwithout limitation, feature and technical specifications, transportation service proposals, draft transportation agreements, drawings, data, designs,\ncomputer programs, patent applications, documentation, marketing forecasts, research and development, financial data, consumer data, product\ndata, study data, test results, or other technical or business information. The fact that the Parties have entered into this Agreement and are\nengaged in discussions with respect to the Transaction shall be considered Confidential Information. Confidential Information does not include\n(i) information which is or becomes generally known other than as a result of disclosure hereunder, (ii) information which was within Recipient’s\nknowledge prior to its being furnished to Recipient or its Representatives by or on behalf of the Discloser, provided that Recipient is not aware of\nthe source of such information being bound by a confidentiality or nondisclosure agreement with the Discloser with respect to such information,\n(iii) information which lawfully becomes available to a Recipient or its Representatives on a non-confidential basis from a source other than\nDiscloser, provided that such source is not bound by a confidentiality agreement with the Discloser known to the Recipient or otherwise\nprohibited from transmitting the information to the Recipient by a contractual, legal or fiduciary obligation known to the Recipient; or (iv)\ninformation which is independently developed by a Recipient or its Representatives without use of the Confidential Information or breach of this\nAgreement.\n1\n2. Consideration of Use. In consideration of the furnishing of Confidential Information by the Discloser, Recipient agrees that it will\nhold the Confidential Information in strict confidence and will use the Confidential Information only in connection with the negotiation and\nconsummation of the Transaction. Recipient will protect the confidentiality of the Discloser’s Confidential Information with at least the same\nlevel of care that it protects the confidentiality of its own similar confidential and proprietary information, and using no less than reasonable care.\n3. Transmission of Confidential Information. Recipient shall transmit Confidential Information only to such of its Representatives as\nneed to know the Confidential Information in order to negotiate and consummate the Transaction, if any, between the parties, and only then after\nsuch Representatives have been informed of this Agreement. Recipient shall be liable for the breach of the Agreement by any of their\nRepresentatives and agree, at their sole expense, to take all reasonable measures to restrain their Representatives from prohibited or unauthorized\ndisclosure or use of any Confidential Information. Recipient shall immediately notify the Discloser in the event of any loss or unauthorized\ndisclosure of any Confidential Information.\n4. Disclosure. If Recipient or any of its Representatives receive a request to disclose any part of the Confidential Information under the\nterms of a subpoena or order issued by a court or other governmental body with the power to compel compliance with its requests. Recipient\nshall (i) notify Discloser immediately of the existence, terms and circumstances surrounding the request (unless prohibited by law to do so), and\n(ii) consult with Discloser on legally available steps to resist or narrow such requests. If disclosure of such Confidential Information is required\nto prevent Recipient from being held in contempt or subject to other penalty, Recipient shall (a) furnish only such portion of the Confidential\nInformation as, in the written opinion of counsel satisfactory to Discloser. Recipient is legally compelled to disclose, and (b) use its best efforts to\nobtain an order or other reliable assurance that confidential treatment will be accorded to the disclosed Confidential Information.\nNotwithstanding any provision herein to the contrary, either Party may disclose the Confidential Information in filings with the United States\nSecurities and Exchange Commission (“SEC”) as may be required by SEC rules and regulations. In addition, subject to the written authorization\nof KMCC or STWA, as the case may be, any data acquired by KMCC or STWA, in furtherance or as a result of that certain Equipment\nLease/Option to Purchase Agreement between KMCC and STWA of even date herewith, may be shared and discussed with, in summary form\nonly, the customers, potential customers, vendors, potential vendors, contractual relationships or potential contractual relationships (collectively,\n“Third Parties”) of KMCC or STWA, provided such Third Parties are informed of this Agreement and such Third Parties agree, in writing, to\nhold the data in strict confidence and to use the data only to evaluate a transaction with KMCC or STWA, as the case may be.\n5. Property. All information furnished by Discloser shall remain Discloser’s property. Upon termination or expiration of this Agreement,\nor upon written request of Discloser or in the event the Parties decide not to proceed with the Transaction, Recipient shall promptly destroy or, at\nDiscloser’s election, redeliver to Discloser, all copies of the Confidential Information, destroy any reports, analyses, notes or other information\n(“Notes”) and deliver to the Discloser a certificate executed by one of Recipient’s duly authorized officers indicating that the requirements of this\nsentence have been satisfied in full. Notwithstanding the return or destruction of Confidential Information and Notes. Recipient and their\nrepresentatives will continue to be bound by Recipient’s obligations of confidentiality and other obligations hereunder. Notwithstanding anything\nherein to the contrary Recipient shall be entitled to retain one archival copy of the Confidential Information and Notes related thereto for archival\nlegal and compliance purposes. For any retained Confidential Information and Notes the Recipient will take appropriate measures to preserve the\ncontinuing confidentiality of such as if they were the Recipient’s own confidential information. The Recipient shall not be obligated to search for\nand destroy, delete or erase Confidential Information or Notes or any analyses, compilations, studies or other documents which have been\nprepared by the Recipient and which reflect or are based upon any Confidential Information if such are maintained as part of a back-up or\narchival system of records and electronic information systems (“EIS”) as part of the routine maintenance and operation of such EIS. EIS shall\ninclude but not be limited to computer systems, e-mail, instant messaging, PDAs and smartphones, or voicemail systems. The Recipient will take\nappropriate measures to preserve the continuing confidentiality of such information that is maintained in the EIS as if it was the Recipient’s own\nconfidential information. No positions set forth in this paragraph shall abrogate any of Recipient’s duties or obligations under this Agreement\nwith respect to Confidential Information.\n2\n6. Warranties. The Parties recognize and agree that nothing contained in this Agreement shall be construed as granting any property\nrights, by license or otherwise, to any Confidential Information disclosed pursuant to this Agreement, or to any invention or any patent,\ncopyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Recipient\nshall not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential\nInformation. THE INFORMATION IS PROVIDED “AS IS” AND THERE ARE NO REPRESENTATIONS OR WARRANTIES,\nEXPRESS OR IMPLIED, WITH RESPECT TO THE INFORMATION, INCLUDING BUT NOT LIMITED TO A WARRANTY\nAGAINST INFRINGEMENT, ACCURACY, OR COMPLETENESS.\n7. Breach. Recipient acknowledges and agrees that, in the event of any breach of this Agreement, Discloser would be irreparably and\nimmediately harmed and could not be made whole by monetary damages. Accordingly, it is agreed that, in addition to any other remedy to which\nit may be entitled at law or in equity, Discloser is entitled to seek and obtain an injunction or injunctions (without the posting of any bond and\nwithout proof of actual damages) to prevent the breach of this Agreement and/or to compel specific performance of its terms.\n8. Inducement. Confidential Information provided to Recipient does not and is not intended to represent an inducement by Discloser or\na commitment by Discloser to enter into any business relationship with Recipient or with any other entity. If some or all of the Parties desire to\npursue business opportunities, the Parties will execute a separate written agreement to govern such business relationship.\n9. Reproduction. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this\nAgreement. Any reproduction of any Confidential Information shall remain the property of the Discloser and shall contain any and all\nconfidential or proprietary notices or legends which may appear on the original, unless otherwise authorized in writing by the Discloser.\n10. Termination. This Agreement shall continue for a period of two (2) years beyond the Effective Date. Any Party may terminate this\nAgreement at any time upon thirty days written notice to the other Party; provided that, notwithstanding any termination of this Agreement, all\nthe obligations of Recipient under this Agreement with respect to any Confidential Information received prior to termination shall survive\ntermination and continue for three (3) years from Effective Date.\n11. Severability. If one or more of the terms of this Agreement are held to be invalid or unenforceable in any respect, the same will be\nfully severed from and will not affect the validity or enforceability of the remaining provisions of this Agreement, and a provision as similar in\nits economic and legal effects as the severed provision will be substituted for the severed provision.\n3\n12. Assignment and Transfer. The Parties will not assign or transfer any rights or obligations under this Agreement without the prior\nwritten consent of the other Parties and any assignment in violation of this Agreement shall be void. This Agreement shall benefit and be binding\nupon the Parties to this Agreement and their respective successors and permitted assigns.\n13. Entirety and Amendment. This Agreement embodies the entire understanding between the Parties respecting the subject matter of\nthis Agreement and supersedes any and all prior negotiations, correspondence, understandings and agreements between the Parties respecting the\nuse and disclosure of Confidential Information. This Agreement may not be modified except by writing signed by both Parties hereto. Either the\noriginal or copies, including facsimile or e-mail transmissions, of this Agreement, may be executed in counterparts, each of which shall be an\noriginal as against any Party whose signature appears on such counterpart and all of which together shall constitute one and the same instrument.\n14. Non-Waiver. The failure of any Party to demand strict performance of any or all of the terms of this Agreement, or to exercise any\nor all rights conferred by this Agreement, shall not be construed as a waiver or relinquishment of that party’s right to assert or rely upon any such\nright in the future.\n15. Press Releases; Public Announcements. Neither Party hereto shall make any press release, public announcement or any similar\ndisclosure or reference with respect to this Agreement or the Transaction without the prior review thereof and reasonable consent thereto by the\nother Party.\n16. Recitals. The recitals set forth above are expressly made a part of this Agreement.\nIN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized officers or representatives as\nof the date first stated above.\nKINDER MORGAN CRUDE &\nSAVE THE WORLD AIR, INC.\nCONDENSATE LLC\nBy:\n/s/ James Holland\nBy:\n/s/ Gregg Bigger\nName: James Holland\nName: Gregg Bigger\nTitle: VP Technical Services\nTitle: CEO & President\n4	EX-10.2 3 stwa_8k-ex1002.htm MUTUAL CONFIDENTIALITY AGREEMENT\nEXHIBIT 10.2\nKM Contract #CA-KMCC-2014-012\nMUTUAL CONFIDENTIALITY AGREEMENT\nThe Mutual Confidentiality Agreement (“Agreement”) is entered into this 15th day of July, 2014 (the “Effective Date”) by and between\nKinder Morgan Crude & Condensate LL.C (“KMCC”) and Save the World Air, Inc. (“STWA”).\nWHEREAS, KMCC and STWA (hereinafter each individually referred to as a “Party” and collectively referred to as (the “Parties)\ncontemplate exchanging information and holding discussions concerning a mutually beneficial business relationship (the “Transaction”):\nWHEREAS, the Parties have entered into this Agreement in order to ensure the confidentiality of all such information and the\nconfidentiality of the dicussions between the Parties regarding the Transaction and to prevent the disclosure of any such information to third\nparties except in accordance with the terms of this Agreement:\nWHEREAS, the Parties recognize that each other’s business involves specialized and proprietary knowledge, information, methods,\nprocesses, techniques and skills peculiar to their security and growth; and\nWHEREAS, the Discloser (as Defined below) would not provide such information without the protections set forth in this Agreement.\nNOW, THEREFORE, in consideration of the mutual agreements of the Parties contained, and for other good and valuable consideration,\nthe receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:\n1. Confidentiality. As used herein, (i) “Discloser” means any Confidential Information disclosed by either Party to the other Party; (ii)\n“Recipient” means any Confidential Information received by either Party from the other Party; and (iii) “Confidential Information” means any\nand all proprietary and non-public information regarding the Transaction or concerning the Discloser (whether prepared by the Discloser, its\nadvisors or otherwise and irrespective of the form of communication) furnished to Recipient or to its officers, directors, members, partners,\nemployees, affiliates, attorneys, agents, consultants, assigns, joint ventures, developers, vendors, investors, researchers, representatives or other\nsimilarly situated persons (collectively, “Representatives”) now or in the future by or on behalf of the Discloser, including but not limited to\ndocuments and information, oral or written, tangible or intangible, electronic or otherwise, generated or collected by Recipient which contain,\nreflect or are derived from any other Confidential Information furnished by or on behalf of the Discloser. Confidential Information shall include,\nwithout limitation, feature and technical specifications, transportation service proposals, draft transportation agreements, drawings, data, designs,\ncomputer programs, patent applications, documentation, marketing forecasts, research and development, financial data, consumer data, product\ndata, study data, test results, or other technical or business information. The fact that the Parties have entered into this Agreement and are\nengaged in discussions with respect to the Transaction shall be considered Confidential Information. Confidential Information does not include\n(i) information which is or becomes generally known other than as a result of disclosure hereunder, (ii) information which was within Recipient’s\nknowledge prior to its being furnished to Recipient or its Representatives by or on behalf of the Discloser, provided that Recipient is not aware of\nthe source of such information being bound by a confidentiality or nondisclosure agreement with the Discloser with respect to such information,\n(iii) information which lawfully becomes available to a Recipient or its Representatives on a non-confidential basis from a source other than\nDiscloser, provided that such source is not bound by a confidentiality agreement with the Discloser known to the Recipient or otherwise\nprohibited from transmitting the information to the Recipient by a contractual, legal or fiduciary obligation known to the Recipient; or (iv)\ninformation which is independently developed by a Recipient or its Representatives without use of the Confidential Information or breach of this\nAgreement.\n2. Consideration of Use. In consideration of the furnishing of Confidential Information by the Discloser, Recipient agrees that it will\nhold the Confidential Information in strict confidence and will use the Confidential Information only in connection with the negotiation and\nconsummation of the Transaction. Recipient will protect the confidentiality of the Discloser’s Confidential Information with at least the same\nlevel of care that it protects the confidentiality of its own similar confidential and proprietary information, and using no less than reasonable care.\n3. Transmission of Confidential Information. Recipient shall transmit Confidential Information only to such of its Representatives as\nneed to know the Confidential Information in order to negotiate and consummate the Transaction, if any, between the parties, and only then after\nsuch Representatives have been informed of this Agreement. Recipient shall be liable for the breach of the Agreement by any of their\nRepresentatives and agree, at their sole expense, to take all reasonable measures to restrain their Representatives from prohibited or unauthorized\ndisclosure or use of any Confidential Information. Recipient shall immediately notify the Discloser in the event of any loss or unauthorized\ndisclosure of any Confidential Information.\n4. Disclosure. If Recipient or any of its Representatives receive a request to disclose any part of the Confidential Information under the\nterms of a subpoena or order issued by a court or other governmental body with the power to compel compliance with its requests. Recipient\nshall (i) notify Discloser immediately of the existence, terms and circumstances surrounding the request (unless prohibited by law to do so), and\n(ii) consult with Discloser on legally available steps to resist or narrow such requests. If disclosure of such Confidential Information is required\nto prevent Recipient from being held in contempt or subject to other penalty, Recipient shall (a) furnish only such portion of the Confidential\nInformation as, in the written opinion of counsel satisfactory to Discloser. Recipient is legally compelled to disclose, and (b) use its best efforts to\nobtain an order or other reliable assurance that confidential treatment will be accorded to the disclosed Confidential Information.\nNotwithstanding any provision herein to the contrary, either Party may disclose the Confidential Information in filings with the United States\nSecurities and Exchange Commission (“SEC”) as may be required by SEC rules and regulations. In addition, subject to the written authorization\nof KMCC or STWA, as the case may be, any data acquired by KMCC or STWA, in furtherance or as a result of that certain Equipment\nLease/Option to Purchase Agreement between KMCC and STWA of even date herewith, may be shared and discussed with, in summary form\nonly, the customers, potential customers, vendors, potential vendors, contractual relationships or potential contractual relationships (collectively,\n“Third Parties”) of KMCC or STWA, provided such Third Parties are informed of this Agreement and such Third Parties agree, in writing, to\nhold the data in strict confidence and to use the data only to evaluate a transaction with KMCC or STWA, as the case may be.\n5. Property. All information furnished by Discloser shall remain Discloser’s property. Upon termination or expiration of this Agreement,\nor upon written request of Discloser or in the event the Parties decide not to proceed with the Transaction, Recipient shall promptly destroy or, at\nDiscloser’s election, redeliver to Discloser, all copies of the Confidential Information, destroy any reports, analyses, notes or other information\n(“Notes™) and deliver to the Discloser a certificate executed by one of Recipient’s duly authorized officers indicating that the requirements of this\nsentence have been satisfied in full. Notwithstanding the return or destruction of Confidential Information and Notes. Recipient and their\nrepresentatives will continue to be bound by Recipient’s obligations of confidentiality and other obligations hereunder. Notwithstanding anything\nherein to the contrary Recipient shall be entitled to retain one archival copy of the Confidential Information and Notes related thereto for archival\nlegal and compliance purposes. For any retained Confidential Information and Notes the Recipient will take appropriate measures to preserve the\ncontinuing confidentiality of such as if they were the Recipient’s own confidential information. The Recipient shall not be obligated to search for\nand destroy, delete or erase Confidential Information or Notes or any analyses, compilations, studies or other documents which have been\nprepared by the Recipient and which reflect or are based upon any Confidential Information if such are maintained as part of a back-up or\narchival system of records and electronic information systems (“EIS”) as part of the routine maintenance and operation of such EIS. EIS shall\ninclude but not be limited to computer systems, e-mail, instant messaging, PDAs and smartphones, or voicemail systems. The Recipient will take\nappropriate measures to preserve the continuing confidentiality of such information that is maintained in the EIS as if it was the Recipient’s own\nconfidential information. No positions set forth in this paragraph shall abrogate any of Recipient’s duties or obligations under this Agreement\nwith respect to Confidential Information.\n6. Warranties. The Parties recognize and agree that nothing contained in this Agreement shall be construed as granting any property\nrights, by license or otherwise, to any Confidential Information disclosed pursuant to this Agreement, or to any invention or any patent,\ncopyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Recipient\nshall not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential\nInformation. THE INFORMATION IS PROVIDED “AS IS” AND THERE ARE NO REPRESENTATIONS OR WARRANTIES,\nEXPRESS OR IMPLIED, WITH RESPECT TO THE INFORMATION, INCLUDING BUT NOT LIMITED TO A WARRANTY\nAGAINST INFRINGEMENT, ACCURACY, OR COMPLETENESS.\n7. Breach. Recipient acknowledges and agrees that, in the event of any breach of this Agreement, Discloser would be irreparably and\nimmediately harmed and could not be made whole by monetary damages. Accordingly, it is agreed that, in addition to any other remedy to which\nit may be entitled at law or in equity, Discloser is entitled to seek and obtain an injunction or injunctions (without the posting of any bond and\nwithout proof of actual damages) to prevent the breach of this Agreement and/or to compel specific performance of its terms.\n8. Inducement. Confidential Information provided to Recipient does not and is not intended to represent an inducement by Discloser or\na commitment by Discloser to enter into any business relationship with Recipient or with any other entity. If some or all of the Parties desire to\npursue business opportunities, the Parties will execute a separate written agreement to govern such business relationship.\n9. Reproduction. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this\nAgreement. Any reproduction of any Confidential Information shall remain the property of the Discloser and shall contain any and all\nconfidential or proprietary notices or legends which may appear on the original, unless otherwise authorized in writing by the Discloser.\n10. Termination. This Agreement shall continue for a period of two (2) years beyond the Effective Date. Any Party may terminate this\nAgreement at any time upon thirty days written notice to the other Party; provided that, notwithstanding any termination of this Agreement, all\nthe obligations of Recipient under this Agreement with respect to any Confidential Information received prior to termination shall survive\ntermination and continue for three (3) years from Effective Date.\n11. Severability. If one or more of the terms of this Agreement are held to be invalid or unenforceable in any respect, the same will be\nfully severed from and will not affect the validity or enforceability of the remaining provisions of this Agreement, and a provision as similar in\nits economic and legal effects as the severed provision will be substituted for the severed provision.\n12. Assignment and Transfer. The Parties will not assign or transfer any rights or obligations under this Agreement without the prior\nwritten consent of the other Parties and any assignment in violation of this Agreement shall be void. This Agreement shall benefit and be binding\nupon the Parties to this Agreement and their respective successors and permitted assigns.\n13. Entirety and Amendment. This Agreement embodies the entire understanding between the Parties respecting the subject matter of\nthis Agreement and supersedes any and all prior negotiations, correspondence, understandings and agreements between the Parties respecting the\nuse and disclosure of Confidential Information. This Agreement may not be modified except by writing signed by both Parties hereto. Either the\noriginal or copies, including facsimile or e-mail transmissions, of this Agreement, may be executed in counterparts, each of which shall be an\noriginal as against any Party whose signature appears on such counterpart and all of which together shall constitute one and the same instrument.\n14. Non-Waiver. The failure of any Party to demand strict performance of any or all of the terms of this Agreement, or to exercise any\nor all rights conferred by this Agreement, shall not be construed as a waiver or relinquishment of that party’s right to assert or rely upon any such\nright in the future.\n15. Press Releases; Public Announcements. Neither Party hereto shall make any press release, public announcement or any similar\ndisclosure or reference with respect to this Agreement or the Transaction without the prior review thereof and reasonable consent thereto by the\nother Party.\n16. Recitals. The recitals set forth above are expressly made a part of this Agreement.\nIN WITNESS WHEREQOF, the Parties have caused this Agreement to be executed by their duly authorized officers or representatives as\nof the date first stated above.\nKINDER MORGAN CRUDE & SAVE THE WORLD AIR, INC.\nCONDENSATE LLC\nBy: /s/ James Holland By: [s/ Gregg Bigger\nName: James Holland Name: Gregg Bigger\nTitle: VP Technical Services Title:  CEO & President	EX-10.2 stwa_8k-ex1002.htm MUTUAL CONFIDENTIALITY AGREEMENT\nEXHIBIT 10.2\nKM Contract #CA-KMCC-2014-012\nMUTUAL CONFIDENTIALITY AGREEMENT\nThe Mutual Confidentiality Agreement ("Agreement") is entered into this 15thd day of July, 2014 (the "Effective Date") by and between\nKinder Morgan Crude & Condensate LLC ("KMCC") and Save the World Air, Inc. ("STWA").\nWHEREAS, KMCC and STWA (hereinafter each individually referred to as a "Party" and collectively referred to as (the "Parties")\ncontemplate exchanging information and holding discussions concerning a mutually beneficial business relationship (the "Transaction"):\nWHEREAS, the Parties have entered into this Agreement in order to ensure the confidentiality of all such information and the\nconfidentiality of the dicussions between the Parties regarding the Transaction and to prevent the disclosure of any such information to third\nparties except in accordance with the terms of this Agreement:\nWHEREAS, the Parties recognize that each other's business involves specialized and proprietary knowledge, information, methods,\nprocesses, techniques and skills peculiar to their security and growth; and\nWHEREAS, the Discloser (as Defined below) would not provide such information without the protections set forth in this Agreement.\nNOW, THEREFORE, in consideration of the mutual agreements of the Parties contained, and for other good and valuable consideration,\nthe receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:\n1. Confidentiality.. As used herein, (i) "Discloser" means any Confidential Information disclosed by either Party to the other Party; (ii)\n"Recipient" means any Confidential Information received by either Party from the other Party; and (iii) "Confidential Information" means any\nand all proprietary and non-public information regarding the Transaction or concerning the Discloser (whether prepared by the Discloser, its\nadvisors or otherwise and irrespective of the form of communication) furnished to Recipient or to its officers, directors, members, partners,\nemployees, affiliates, attorneys, agents, consultants, assigns, joint ventures, developers, vendors, investors, researchers, representatives or other\nsimilarly situated persons (collectively, "Representatives") now or in the future by or on behalf of the Discloser, including but not limited to\ndocuments\nand\ninformation,\noral\nor\nwritten,\ntangible\nor\nintangible,\nelectronic\nor\notherwise,\ngenerated\nor\ncollected\nby\nRecipient\nwhich\ncontain,\nreflect or are derived from any other Confidential Information furnished by or on behalf of the Discloser. Confidentia Information shall include,\nwithout limitation, feature and technical specifications, transportation service proposals, draft transportation agreements, drawings, data, designs,\ncomputer programs, patent applications, documentation, marketing forecasts, research and development, financial data, consumer data, product\ndata, study data, test results, or other technical or business information. The fact that the Parties have entered into this Agreement and are\nengaged in discussions with respect to the Transaction shall be considered Confidential Information Confidential Information does not include\n(i) information which is or becomes generally known other than as a result of disclosure hereunder, (ii) information which was within Recipient's\nknowledge prior to its being furnished to Recipient or its Representatives by or on behalf of the Discloser, provided that Recipient is not aware\nof\nthe source of such information being bound by a confidentiality or nondisclosure agreement with the Discloser with respect to such information,\n(iii) information which lawfully becomes available to a Recipient or its Representatives on a non-confidential basis from a source other than\nDiscloser, provided that such source is not bound by a confidentiality agreement with the Discloser known to the Recipient or otherwise\nprohibited from transmitting the information to the Recipient by a contractual, legal or fiduciary obligation known to the Recipient; or (iv)\ninformation which is independently developed by a Recipient or its Representatives without use of the Confidential Information or breach of this\nAgreement.\n1\n2. Consideration of Use. In consideration of the furnishing of Confidential Information by the Discloser, Recipient agrees that it will\nhold the Confidential Information in strict confidence and will use the Confidential Information only in connection with the negotiation and\nconsummation\nof\nthe\nTransaction.\nRecipient\nwill\nprotect\nthe\nconfidentiality\nof\nthe\nDiscloser's\nConfidential\nInformation\nwith\nat\nleast\nthe\nsame\nlevel of care that it protects the confidentiality of its own similar confidential and proprietary information, and using no less than reasonable\ncare.\n3. Transmission of Confidential Information Recipient shall transmit Confidential Information only to such of its Representatives as\nneed to know the Confidential Information in order to negotiate and consummate the Transaction, if any, between the parties, and only then after\nsuch Representatives have been informed of this Agreement. Recipient shall be liable for the breach of the Agreement by any of their\nRepresentatives and agree, at their sole expense, to take all reasonable measures to restrain their Representatives from prohibited or unauthorized\ndisclosure or use of any Confidential Information. Recipient shall immediately notify the Discloser in the event of any loss or unauthorized\ndisclosure of any Confidential Information.\n4. Disclosure. If Recipient or any of its Representatives receive a request to disclose any part of the Confidential Information under the\nterms of a subpoena or order issued by a court or other governmental body with the power to compel compliance with its requests. Recipient\nshall (i) notify Discloser immediately of the existence, terms and circumstances surrounding the request (unless prohibited by law to do so),\nand\n(ii) consult with Discloser on legally available steps to resist or narrow such requests. If disclosure of such Confidentia Information is required\nto prevent Recipient from being held in contempt or subject to other penalty, Recipient shall (a) furnish only such portion of the Confidentia\nInformation as, in the written opinion of counsel satisfactory to Discloser. Recipient is legally compelled to disclose, and (b) use its best efforts to\nobtain an order or other reliable assurance that confidential treatment will be accorded to the disclosed Confidential Information.\nNotwithstanding\nany\nprovision\nherein\nto\nthe\ncontrary,\neither\nParty\nmay\ndisclose\nthe\nConfidential\nInformation\nin\nfilings\nwith\nthe\nUnited\nStates\nSecurities and Exchange Commission ("SEC") as may be required by SEC rules and regulations. In addition, subject to the written authorization\nof KMCC or STWA, as the case may be, any data acquired by KMCC or STWA, in furtherance or as a result of that certain Equipment\nLease/Option to Purchase Agreement between KMCC and STWA of even date herewith, may be shared and discussed with, in summary form\nonly, the customers, potential customers, vendors, potential vendors, contractual relationships or potential contractual relationships (collectively,\n"Third Parties") of KMCC or STWA, provided such Third Parties are informed of this Agreement and such Third Parties agree, in writing, to\nhold the data in strict confidence and to use the data only to evaluate a transaction with KMCC or STWA, as the case may be.\n5. Property.. All information furnished by Discloser shall remain Discloser's property. Upon termination or expiration of this Agreement,\nor\nupon\nwritten\nrequest\nof\nDiscloser\nor\nin\nthe\nevent\nthe\nParties\ndecide\nnot\nto\nproceed\nwith\nthe\nTransaction,\nRecipient\nshall\npromptly\ndestroy\nor,\nat\nDiscloser's election, redeliver to Discloser, all copies of the Confidential Information, destroy any reports, analyses, notes or other information\n("Notes") and deliver to the Discloser a certificate executed by one of Recipient's duly authorized officers indicating that the requirements of this\nsentence have been satisfied in full. Notwithstanding the return or destruction of Confidential Information and Notes. Recipient and their\nrepresentatives will continue to be bound by Recipient's obligations of confidentiality and other obligations hereunder. Notwithstanding anything\nherein to the contrary Recipient shall be entitled to retain one archival copy of the Confidential Information and Notes related thereto for archival\nlegal and compliance purposes. For any retained Confidential Information and Notes the Recipient will take appropriate measures to preserve the\ncontinuing confidentiality of such as if they were the Recipient's own confidential information. The Recipient shall not be obligated to search for\nand destroy, delete or erase Confidential Information or Notes or any analyses, compilations, studies or other documents which have been\nprepared by the Recipient and which reflect or are based upon any Confidential Information if such are maintained as part of a back-up\nor\narchival system of records and electronic information systems ("EIS") as part of the routine maintenance and operation of such EIS. EIS shall\ninclude but not be limited to computer systems, e-mail, instant messaging, PDAs and smartphones, or voicemail systems. The Recipient will take\nappropriate measures to preserve the continuing confidentiality of such information that is maintained in the EIS as if it was the Recipient's own\nconfidential information. No positions set forth in this paragraph shall abrogate any of Recipient's duties or obligations under this Agreement\nwith respect to Confidential Information.\n2\n6. Warranties. The Parties recognize and agree that nothing contained in this Agreement shall be construed as granting any property\nrights, by license or otherwise, to any Confidential Information disclosed pursuant to this Agreement, or to any invention or any patent,\ncopyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Recipient\nshall not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential\nInformation. THE INFORMATION IS PROVIDED "AS IS" AND THERE ARE NO REPRESENTATIONS OR WARRANTIES,\nEXPRESS OR IMPLIED, WITH RESPECT TO THE INFORMATION, INCLUDING BUT NOT LIMITED TO A WARRANTY\nAGAINST INFRINGEMENT, ACCURACY, OR COMPLETENESS.\n7. Breach. Recipient acknowledges and agrees that, in the event of any breach of this Agreement, Discloser would be irreparably and\nimmediately harmed and could not be made whole by monetary damages. Accordingly, it is agreed that, in addition to any other remedy to which\nit may be entitled at law or in equity, Discloser is entitled to seek and obtain an injunction or injunctions (without the posting of any bond and\nwithout proof of actual damages) to prevent the breach of this Agreement and/or to compel specific performance of its terms.\n8. Inducement. Confidential Information provided to Recipient does not and is not intended to represent an inducement by Discloser or\na\ncommitment by Discloser to enter into any business relationship with Recipient or with any other entity. If some or all of the Parties desire to\npursue business opportunities, the Parties will execute a separate written agreement to govern such business relationship.\n9. Reproduction. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this\nAgreement. Any reproduction of any Confidentia Information shall remain the property of the Discloser and shall contain any and all\nconfidential or proprietary notices or legends which may appear on the original, unless otherwise authorized in writing by the Discloser.\n10. Termination This Agreement shall continue for a period of two (2) years beyond the Effective Date. Any Party may terminate this\nAgreement at any time upon thirty days written notice to the other Party; provided that, notwithstanding any termination of this Agreement,\nall\nthe obligations of Recipient under this Agreement with respect to any Confidential Information received prior to termination shall survive\ntermination and continue for three (3) years from Effective Date.\n11. Severability.. If one or more of the terms of this Agreement are held to be invalid or unenforceable in any respect, the same will be\nfully severed from and will not affect the validity or enforceability of the remaining provisions of this Agreement, and a provision as similar in\nits economic and legal effects as the severed provision will be substituted for the severed provision.\n3\n12. Assignment and Transfer. The Parties will not assign or transfer any rights or obligations under this Agreement without the prior\nwritten consent of the other Parties and any assignment in violation of this Agreement shall be void. This Agreement shall benefit and be binding\nupon the Parties to this Agreement and their respective successors and permitted assigns.\n13. Entirety and Amendment. This Agreement embodies the entire understanding between the Parties respecting the subject matter of\nthis Agreement and supersedes any and all prior negotiations, correspondence, understandings and agreements between the Parties respecting the\nuse and disclosure of Confidential Information. This Agreement may not be modified except by writing signed by both Parties hereto. Either the\noriginal or copies, including facsimile or e-mail transmissions, of this Agreement, may be executed in counterparts, each of which shall be an\noriginal as against any Party whose signature appears on such counterpart and all of which together shall constitute one and the same instrument.\n14. Non-Waiver. The failure of any Party to demand strict performance of any or all of the terms of this Agreement, or to exercise any\nor all rights conferred by this Agreement, shall not be construed as a waiver or relinquishment of that party's right to assert or rely upon any such\nright in the future.\n15. Press Releases; Public Announcements. Neither Party hereto shall make any press release, public announcement or any similar\ndisclosure or reference with respect to this Agreement or the Transaction without the prior review thereof and reasonable consent thereto by the\nother Party.\n16. Recitals. The recitals set forth above are expressly made a part of this Agreement.\nIN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized officers or representatives as\nof the date first stated above.\nKINDER MORGAN CRUDE &\nSAVE THE WORLD AIR, INC.\nCONDENSATE LLC\nBy:\n/s/ James Holland\nBy:\n/s/ Gregg Bigger\nName: James Holland\nName: Gregg Bigger\nTitle: VP Technical Services\nTitle: CEO & President\n4	EX-10 .2 3 stwa_8k-ex1002.htm MUTUAL CONFIDENTIALITY AGREEMENT\nEXHIBIT 10.2\nKM Contract #CA-KMCC-2014-012\nMUTUAL CONFIDENTIALITY AGREEMENT\nThe Mutual Confidentiality Agreement (“Agreement”) is entered into this 15th day of July, 2014 (the “Effective Date”) by and between\nKinder Morgan Crude & Condensate LLC (“KMCC”) and Save the World Air, Inc. (“STWA”).\nWHEREAS, KMCC and STWA (hereinafter each individually referred to as a “Party” and collectively referred to as (the “Parties”)\ncontemplate exchanging information and holding discussions concerning a mutually beneficial business relationship (the “Transaction”):\nWHEREAS, the Parties have entered into this Agreement in order to ensure the confidentiality of all such information and the\nconfidentiality of the dicussions between the Parties regarding the Transaction and to prevent the disclosure of any such information to third\nparties except in accordance with the terms of this Agreement:\nWHEREAS, the Parties recognize that each other’s business involves specialized and proprietary knowledge, information, methods,\nprocesses, techniques and skills peculiar to their security and growth; and\nWHEREAS, the Discloser (as Defined below) would not provide such information without the protections set forth in this Agreement.\nNOW, THEREFORE, in consideration of the mutual agreements of the Parties contained, and for other good and valuable consideration,\nthe receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:\n1. Confidentiality. As used herein, (i) “Discloser” means any Confidential Information disclosed by either Party to the other Party; (ii)\n“Recipient” means any Confidential Information received by either Party from the other Party; and (iii) “Confidential Information” means any\nand all proprietary and non-public information regarding the Transaction or concerning the Discloser (whether prepared by the Discloser, its\nadvisors or otherwise and irrespective of the form of communication) furnished to Recipient or to its officers, directors, members, partners,\nemployees, affiliates, attorneys, agents, consultants, assigns, joint ventures, developers, vendors, investors, researchers, representatives or other\nsimilarly situated persons (collectively, “Representatives”) now or in the future by or on behalf of the Discloser, including but not limited to\ndocuments and information, oral or written, tangible or intangible, electronic or otherwise, generated or collected by Recipient which contain,\nreflect or are derived from any other Confidential Information furnished by or on behalf of the Discloser. Confidential Information shall include,\nwithout limitation, feature and technical specifications, transportation service proposals, draft transportation agreements, drawings, data, designs,\ncomputer programs, patent applications, documentation, marketing forecasts, research and development, financial data, consumer data, product\ndata, study data, test results, or other technical or business information. The fact that the Parties have entered into this Agreement and are\nengaged in discussions with respect to the Transaction shall be considered Confidential Information. Confidential Information does not include\n(i) information which is or becomes generally known other than as a result of disclosure hereunder, (ii) information which was within Recipient’s\nknowledge prior to its being furnished to Recipient or its Representatives by or on behalf of the Discloser, provided that Recipient is not aware of\nthe source of such information being bound by a confidentiality or nondisclosure agreement with the Discloser with respect to such information,\n(iii) information which lawfully becomes available to a Recipient or its Representatives on a non-confidential basis from a source other than\nDiscloser, provided that such source is not bound by a confidentiality agreement with the Discloser known to the Recipient or otherwise\nprohibited from transmitting the information to the Recipient by a contractual, legal or fiduciary obligation known to the Recipient; or (iv)\ninformation which is independently developed by a Recipient or its Representatives without use of the Confidential Information or breach of this\nAgreement.\n1\n2. Consideration of Use. In consideration of the furnishing of Confidential Information by the Discloser, Recipient agrees that it will\nhold the Confidential Information in strict confidence and will use the Confidential Information only in connection with the negotiation and\nconsummation of the Transaction. Recipient will protect the confidentiality of the Discloser’s Confidential Information with at least the same\nlevel of care that it protects the confidentiality of its own similar confidential and proprietary information, and using no less than reasonable care.\n3. Transmission of Confidential Information. Recipient shall transmit Confidential Information only to such of its Representatives as\nneed to know the Confidential Information in order to negotiate and consummate the Transaction, if any, between the parties, and only then after\nsuch Representatives have been informed of this Agreement. Recipient shall be liable for the breach of the Agreement by any of their\nRepresentatives and agree, at their sole expense, to take all reasonable measures to restrain their Representatives from prohibited or unauthorized\ndisclosure or use of any Confidential Information. Recipient shall immediately notify the Discloser in the event of any loss or unauthorized\ndisclosure of any Confidential Information.\n4. Disclosure. If Recipient or any of its Representatives receive a request to disclose any part of the Confidential Information under the\nterms of a subpoena or order issued by a court or other governmental body with the power to compel compliance with its requests. Recipient\nshall (i) notify Discloser immediately of the existence, terms and circumstances surrounding the request (unless prohibited by law to do so), and\n(ii) consult with Discloser on legally available steps to resist or narrow such requests. If disclosure of such Confidential Information is required\nto prevent Recipient from being held in contempt or subject to other penalty, Recipient shall (a) furnish only such portion of the Confidential\nInformation as, in the written opinion of counsel satisfactory to Discloser. Recipient is legally compelled to disclose, and (b) use its best efforts to\nobtain an order or other reliable assurance that confidential treatment will be accorded to the disclosed Confidential Information.\nNotwithstanding any provision herein to the contrary, either Party may disclose the Confidential Information in filings with the United States\nSecurities and Exchange Commission (“SEC”) as may be required by SEC rules and regulations. In addition, subject to the written authorization\nof KMCC or STWA, as the case may be, any data acquired by KMCC or STWA, in furtherance or as a result of that certain Equipment\nLease/Option to Purchase Agreement between KMCC and STWA of even date herewith, may be shared and discussed with, in summary form\nonly, the customers, potential customers, vendors, potential vendors, contractual relationships or potential contractual relationships (collectively,\n“Third Parties”) of KMCC or STWA, provided such Third Parties are informed of this Agreement and such Third Parties agree, in writing, to\nhold the data in strict confidence and to use the data only to evaluate a transaction with KMCC or STWA, as the case may be.\n5. Property. All information furnished by Discloser shall remain Discloser’s property. Upon termination or expiration of this Agreement,\nor upon written request of Discloser or in the event the Parties decide not to proceed with the Transaction, Recipient shall promptly destroy or, at\nDiscloser’s election, redeliver to Discloser, all copies of the Confidential Information, destroy any reports, analyses, notes or other information\n(“Notes”) and deliver to the Discloser a certificate executed by one of Recipient’s duly authorized officers indicating that the requirements of this\nsentence have been satisfied in full. Notwithstanding the return or destruction of Confidential Information and Notes. Recipient and their\nrepresentatives will continue to be bound by Recipient’s obligations of confidentiality and other obligations hereunder. Notwithstanding anything\nherein to the contrary Recipient shall be entitled to retain one archival copy of the Confidential Information and Notes related thereto for archival\nlegal and compliance purposes. For any retained Confidential Information and Notes the Recipient will take appropriate measures to preserve the\ncontinuing confidentiality of such as if they were the Recipient’s own confidential information. The Recipient shall not be obligated to search for\nand destroy, delete or erase Confidential Information or Notes or any analyses, compilations, studies or other documents which have been\nprepared by the Recipient and which reflect or are based upon any Confidential Information if such are maintained as part of a back-up or\narchival system of records and electronic information systems (“EIS”) as part of the routine maintenance and operation of such EIS. EIS shall\ninclude but not be limited to computer systems, e-mail, instant messaging, PDAs and smartphones, or voicemail systems. The Recipient will take\nappropriate measures to preserve the continuing confidentiality of such information that is maintained in the EIS as if it was the Recipient’s own\nconfidential information. No positions set forth in this paragraph shall abrogate any of Recipient’s duties or obligations under this Agreement\nwith respect to Confidential Information.\n2\n6. Warranties. The Parties recognize and agree that nothing contained in this Agreement shall be construed as granting any property\nrights, by license or otherwise, to any Confidential Information disclosed pursuant to this Agreement, or to any invention or any patent,\ncopyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Recipient\nshall not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential\nInformation. THE INFORMATION IS PROVIDED “AS IS” AND THERE ARE NO REPRESENTATIONS OR WARRANTIES,\nEXPRESS OR IMPLIED, WITH RESPECT TO THE INFORMATION, INCLUDING BUT NOT LIMITED TO A WARRANTY\nAGAINST INFRINGEMENT, ACCURACY, OR COMPLETENESS.\n7. Breach. Recipient acknowledges and agrees that, in the event of any breach of this Agreement, Discloser would be irreparably and\nimmediately harmed and could not be made whole by monetary damages. Accordingly, it is agreed that, in addition to any other remedy to which\nit may be entitled at law or in equity, Discloser is entitled to seek and obtain an injunction or injunctions (without the posting of any bond and\nwithout proof of actual damages) to prevent the breach of this Agreement and/or to compel specific performance of its terms.\n8. Inducement. Confidential Information provided to Recipient does not and is not intended to represent an inducement by Discloser or\na commitment by Discloser to enter into any business relationship with Recipient or with any other entity. If some or all of the Parties desire to\npursue business opportunities, the Parties will execute a separate written agreement to govern such business relationship.\n9. Reproduction. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this\nAgreement. Any reproduction of any Confidential Information shall remain the property of the Discloser and shall contain any and all\nconfidential or proprietary notices or legends which may appear on the original, unless otherwise authorized in writing by the Discloser.\n10. Termination. This Agreement shall continue for a period of two (2) years beyond the Effective Date. Any Party may terminate this\nAgreement at any time upon thirty days written notice to the other Party; provided that, notwithstanding any termination of this Agreement, all\nthe obligations of Recipient under this Agreement with respect to any Confidential Information received prior to termination shall survive\ntermination and continue for three (3) years from Effective Date.\n11. Severability. If one or more of the terms of this Agreement are held to be invalid or unenforceable in any respect, the same will be\nfully severed from and will not affect the validity or enforceability of the remaining provisions of this Agreement, and a provision as similar in\nits economic and legal effects as the severed provision will be substituted for the severed provision.\n3\n12. Assignment and Transfer. The Parties will not assign or transfer any rights or obligations under this Agreement without the prior\nwritten consent of the other Parties and any assignment in violation of this Agreement shall be void. This Agreement shall benefit and be binding\nupon the Parties to this Agreement and their respective successors and permitted assigns.\n13. Entirety and Amendment. This Agreement embodies the entire understanding between the Parties respecting the subject matter of\nthis Agreement and supersedes any and all prior negotiations, correspondence, understandings and agreements between the Parties respecting the\nuse and disclosure of Confidential Information. This Agreement may not be modified except by writing signed by both Parties hereto. Either the\noriginal or copies, including facsimile or e-mail transmissions, of this Agreement, may be executed in counterparts, each of which shall be an\noriginal as against any Party whose signature appears on such counterpart and all of which together shall constitute one and the same instrument.\n14. Non-Waiver. The failure of any Party to demand strict performance of any or all of the terms of this Agreement, or to exercise any\nor all rights conferred by this Agreement, shall not be construed as a waiver or relinquishment of that party’s right to assert or rely upon any such\nright in the future.\n15. Press Releases; Public Announcements. Neither Party hereto shall make any press release, public announcement or any similar\ndisclosure or reference with respect to this Agreement or the Transaction without the prior review thereof and reasonable consent thereto by the\nother Party.\n16. Recitals. The recitals set forth above are expressly made a part of this Agreement.\nIN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized officers or representatives as\nof the date first stated above.\nKINDER MORGAN CRUDE &\nSAVE THE WORLD AIR, INC.\nCONDENSATE LLC\nBy:\n/s/ James Holland\nBy:\n/s/ Gregg Bigger\nName: James Holland\nName: Gregg Bigger\nTitle: VP Technical Services\nTitle: CEO & President\n4